Smith v. Sublett

Citations

• 28 Tex. 163

Syllabus

<p>A defendant may plead as many inconsistent pleas as he may choose, provided they are pertinent and in due order of pleading; and an intervener who is occupying the attitude of a defendant, and who is resisting a claim to his property asserted by a plaintiff, is entitled to the same latitude in his pleadings. (Paschal’s Dig., Art. 1441, Note 548.),</p> <p>When an authority in the nature of a personal trust is conf^red, it does not impliedly invest the agent with the right of substitution, but is to be considered exclusively personal, unless by the language used, or by a fair presumption arising from the particular transaction or the usage of trade, a broader power be conferred upon the agent.</p> <p>A contract between the owner of a land certificate and his agent, by which the agent is employed and empowered to locate the certificate, involves a personal confidence reposed in the agent, and does not, in the absence of an express power of substitution and of an established custom of the country, confer upon the agent the right to transfer the trust to another person.</p> <p>A principal is not chargeable with notice of all acts done by his agent with reference to the subject-matter of the agency, but of such acts only as are within the scope of the authority conferred upon the agent. If an agent, without authority, assume to exercise a power of substitution, the principal is not chargeable with notice thereof.</p> <p>The possession of a land certificate does not imply a power in the holder to employ another person to locate it. The title to such an instrument does not pass by delivery, and, if it have been assigned by the grantee, the presumption is, that it belongs to the assignee, and not to a third person in whose possession it may be.</p> <p>The mere fact that a land certificate has not been assigned to the person having possession of it is of itself sufficient to put other persons on their guard in contracting with the holder to locate it for his benefit.</p> <