While courts of equity will ordinarily aid the defective execution of a power, they will never undertake to make valid the attempted execution of a power which is void for the want of authority in the person who attempts its execution, .
In this case Brashear attempted to execute the deed of trust by virtue of an instrument which does not invest him with any authority to make the sale. Hence this is not a question of the defective execution of a power, but where there is an entire want of" authority in Brashear to execute the power.
When this case was before us on the former appeal, the instrument by virtue of which Brashear attempted to execute the trust deed was maturely considered, and it was then, held that it did not confer upon Brashear any authority to make the sale. See McCormick v. Cheveral, Texas Law Journal, vol. 3, p. 648.
Presiding Judge Walker, then delivering the opinion, said: “We are of the opinion that the letter allows of no other construction in law than that it did not by its terms make an appointment of a substitute trustee; it did not purport to do so,”
And again it is remarked in that opinion, “ The letter purports to be in response to an inquiry made through Capt. Boyce by Brashear as to what Murphy wanted to have done with the McCormick land or place; implying either some relation of agency already existing or expected to exist between himself and Murphy, relative in some way to Murphy’s claim against the land; thereupon he, in effect, constitutes Brashear his (Murphy’s) attorney to 1 settle the same,’ directing him. as such attorney for him (Murphy), not the mutual trustee of both himself and McCormick, but his attorney, to take the proper steps to ‘ close it out.’ The duties and powers conferred authorized Brashear to act for Murphy as Ms attorney/ such attorneyship may have been that of attorney in fact or an attorney at law, and the authority given empowered him to require the trustee to sell, and thus 6 close out ’ the business in hand. It did not profess to do more; and if more was intended, its expression was withheld from the writing. It certainly did not appoint Brashear a substitute trustee.”
We have again examined the question, and finding no reason for changing our views, we adhere to the construction given to the instrument on the former appeal.
In the case of Jacobs v. McClintock, 53 Tex., 81, as in this case, the deed of trust provided for the appointment of a substitute trustee, to be made under the hand and seal of the cestui que trust; there the appointment was in due form, except the seal or scroll was *446omitted, and this was urged as fatal; but the court said: “ The mere omission of a seal would not render invalid the execution of a power otherwise valid.” Here the question is not one respecting an informality in the execution of the instrument by which the substituted trustee is appointed, but it is where the omission is one of essential substance. The terms used in the instrument do not constitute Brashear a substituted trustee, and hence it is not a question respecting the defective execution of a power, as there is no power conferred upon him to execute the trust.
[Opinion adopted February 2, 1883.]In this attitude of the case, the court correctly excluded the evidence of Murphy, which was offered to show, without regard to the terms of the writing, that he did intend to appoint Brashear substituted trustee. The legal effect of such an instrument can never be destroyed in that way by oral evidence. The intention and legal effect must be derived from a fair construction of the writing, without regard to any latent intent that might be lingering in the mind of the party who executed the same.
Appellee relied in the court below upon a deed duly executed by Michael McCormick to him, for this land, dated January 15, 1868, and recorded the next day. This deed expressed a consideration of $5, and contained a clause of general warranty of title. As appears from the evidence, the grantor Michael McCormick is the father of appellee. It is claimed by appellant that, from these circumstances, the deed must be considered as a gift, and hence the court erred in excluding the evidence offered by him to show that Michael McCormick did in 1812 ratify the sale made by Brashear in 1811.
To this proposition we cannot yield assent, for whatever interest Michael McCormick then had in the land passed to and vested in the appellee by apparent onerous title. Having thus conveyed the land by onerous title to appellee, the grantor could not thereafter ratify the subsequent illegal sale made by Brashear, and thereby defeat his conveyance to the appellee.
We conclude, and so report, that the judgment ought to be affirmed.
Affibmed.