This is an action of trespass to try title. The defendant pleaded not guilty. The case was tried by the court without a jury and judgment was rendered in favor of plaintiffs for the land. The defendant appealed.
The record shows a regular chain of title down to Amelia Harrell, she being at the time of the conveyance to her the wife of Josiah T. Harrell. The deed to her was made in 1845, and recited receipt of consideration of 8500.
There was no recital in the deed or fact in evidence giving to the deed to the wife other than its operation of conveying the title to the community.
The wife made to her husband a power of attorney in terms authorizing him to sell the land.
Afterwards, and during the life of the wife, the husband, in pursuance of the terms of this power of attorney, deeded the land to John H. Walton. This deed contains the following clause: “ I the said attorney declare that I am duly authorized to sell and convey said property, and that I will warrant and defend the same against any and all claims whatever.”
The record shows a regular chain of title from Walton to appellant.
Amelia Harrell died intestate, and appellees are her only heirs.
Appellant assigns as error that “ the court erred in giving judgment for plaintiff, because the proof shows that the property in question was the community property of J. T. and Amelia Harrell, and the deed executed by him and signed by him as attorney in fact for said Amelia Harrell is in law a legal and valid conveyance of said community property.” We agree in every particular with this assignment.
The wife's power of attorney gave the husband no power to sell the land, but because it was community property he had full power under the law to sell it. Rev. Stats., art. 2852.
The conveying clause of the deed to Walton sufficiently shows that the land was conveyed as the property of the wife and the husband's name is signed to the deed only as the agent of his wife.
*432In the case of Heard v. Hall, 16 Pickering, 460, it is said to be “the well established rule of equity that where one having title acquiesces in the disposition of his property for a valuable consideration by a person pretending to title and having color of title, he shall be bound by such disposition and shall not afterwards be allowed to set up his own title against the purchaser.
“And so it has been held that if one having title stands by while another purchases from a third person claiming title and does not forbid the purchase or disclose his own title he shall be bound a fortiori if he encourages the purchase; or, as in the present case, a person sells his own property as the property of another to a bona fi.de purchaser for a valuable consideration. In this case the petitioner expressly covenants that he is lawfully authorized and empowered to make sale of the granted premises. Host certainly he was not so authorized; and this covenant operates to avoid circuity of action by way of rebutter, and estops the petitioner from setting up his title.”
We think the deed of the husband conveyed to Walton the common title of the husband and wife and left no estate for the heirs of the husband or wife to take at their deaths.
It was objected in the court below and is insisted here that the defense by estoppel must be specially pleaded. We think that in action of trespass to try title the proof is admissible under the plea of not guilty. Rev. Stats., art. 4793; Mayer v. Ramsey, 46 Texas, 371.
The judgment of the District Court will be reversed and such judgment here rendered as ought to have been rendered by the court below; which will be that the appellees take nothing by their suit, and that appellant recover of them all costs of the court below and of this court. And it is accordingly so ordered.
Reversed and rendered.
Opinion January 15, 1889.