Billings v. Morrow

Murray, C. J., delivered the opinion of the Court—Terry con- This was an action of ejectment in the Court below. The plaintiff deraigns his title from John A. Sutter, Sr., through sundry mesne conveyances, the first of which purports to have been executed by virtue of a power of attorney from Sutter to Henry A. Schoolcraft, dated the twenty-eighth of July, 1849, which is in the following words, viz.: “John A. Sutter to Henry A. Schoolcraft: Know all men by these presents, that I, J. A. Sutter, have this day made, constituted, and appointed Henry A. Schoolcraft my true and lawful attorney, for me and in my name to superintend my real and personal estate, to make contracts, to settle outstanding debts, and generally to do all things that concern my interest in any way, real or personal whatsoever, giving my said attorney full power to use my name to release others or bind myself, as he may deem proper and expedient; hereby making the said Schoolcraft my general attorney and agent, and by these presents ratifying whatsoever my said attorney may do by virtue of this power. In witness whereof, I have hereunto set my hand and seal, this twenty-eighth day of July, a. u. 1849. J. A. Sutter.” [174] It requires but a glance at this ‘instrument, to perceive that no authority is contained in it to convey real estate. The power is limited and special, and cannot be extended by implication to other acts more important in their character than those expressly provided in the body of the instrument. The rule may be thus stated; that where the authority to perform specific acts is given in the power, and general words are also employed, such words are limited to the particular acts authorized. This rule is too well understood to require illustration, and the learned counsel for the respondents did not seriously contend that the letter of attorney contained any power to sell real estate, but insisted, that the sale, though void or defective, was afterwards ratified by Sutter, by a subsequent deed executed by him on the twentieth' of May, 1850, which is as follows, viz : “John A. Sutter to Henry A. Schoolcraft: Know all men by these presents, that I, J. A. Sutter, of Hock Farm, in the territory of California, have this day made and concluded a final settlement with Henry A. Schoolcraft, my acknowledged agent and attorney in fact since the twenty-eighth day of July, A. n. 1849, for all the business matters and things in anywise appertaining to my interest, and upon such final settlement, I do hereby acknowledge myself held and firmly bound by all his acts as such agent and attorney in fact for me ; hereby ratifying and confirming by these presents, whatsoever he may have done in my name or under my seal at any time heretofore, and also do I acknowledge the receipt in full of all sums of money, dues, obligations, and other things, of the said Henry A. Schoolcraft, belonging to me, on account of said agency and attorneyship in fact, and that on the part of the said Henry A. Schoolcraft, there is nothing due or owing to me up to the date of these presents. Witness my hand and seal, at Sacramento, California, this twentieth day of May, in the year of our Lord eighteen hundred and fifty. (Signed.) J. A. Sutter.” This paper does not, upon its face, purport'to be a ratification of sales of land made by Schoolcraft, but a deed of settlement between Sutter and his agent, by virtue of the power, of the twenty-eighth July, 1849, in which he, Sutter, “acknowledges himself held and firmly bound by all his acts as such agent or attorney in fact,” etc. So far as this deed goes, it can only be regarded as a settlement or adjustment of accounts between principal and agent, and does not contain a single word with regard to any acts of Schoolcraft, other than those done by authority of the power of attorney of July 28, 1849, to which reference is made. It is a well settled rule, that a principal who ratifies the acts of his agent, must be made acquainted with the character of [175] those acts, and unless all the circumstances are made known to him, the ratification is void. Iirthrfifeseilt 'cáseTÍtiteés~fiOt -appear from the deed that Sutter knew that Schoolcraft had exceeded: his anthoritjfby'ssiling‘ real estate; neither is the fact established by evidence aliunde. Whether parol evidence is admissible to establish this fact, is a question which we do not propose to examine in this case, as there was no attempt to introduce it on the trial, and as the' question is of much importance to those claiming under .similar titles, it is deemed advisable to withhold any expression of opinion until the point is directly presented. In addition to this, another question of no little difficulty may suggest itself, viz.: Whether the deed to Schoolcraft, treating it as a confirmation, would inure to the benefit of those who had purchased from him, or whether a deed direct from Sutter to them would not be necessary. As this case now stands before the Court, the plaintiffs cannot recover. The power of attorney contains no authority to sell land; the deed of ratification does not show upon its face, that Sutter knew how, or to what extent, the authority had been exceeded, and this fact is not established by any evidence whatever ; neither was Sutter bound to take notice of the recorded conveyances by his attorney; first, because many of these records imported no notice, and second, because, not having given authority to sell, it was not reasonable to suppose his agent would transcend that authority. Judgment reversed, and cause remanded.