De Rutte v. Muldrow

Baldwin, J. delivered the opinion of the Court Field, C. J. and Cope, J. concurring. Ejectment for a tract of land in Sacramento county. The parties claim under deed from John A. Sutter. To maintain the issue on their part, plaintiffs offered a deed from Sutter, dated May 3d, 1850. Appended to the deed is a memorandum signed by Sutter, stating that the deed was made in pursuance of an agreement between all the above parties on the twenty-sixth day of January, 1850. Plaintiffs also introduced another deed from Sutter to them for the same land, dated November 20th, 1850. The defendant offered in evidence a lease, purporting to be executed by John A. Sutter to Henry A. Schoolcraft, his attorney in fact, dated December 14th, 1849. This lease contained this clause: “ That the said Muldrow shall have the privilege of purchasing any part of said land during the continuation of this lease, at its value, in preference to any other persons; ” and defendants in this connection offered in proof a power of attorney from Sutter to School510 craft, dated July 28th, 1849. This paper is set out in Billings v. Morrow (7 Cal. 171). Defendant offered in evidence a power of attorney from Sutter to J. S. Fowler, dated July 9th, 1850, and also a deed purporting to be made by Sutter, by Fowler attorney, to defendant Muldrow, dated October 22d, 1850; to the introduction of which plaintiffs objected, upon the ground that Fowler had no authority to execute the deed—the power not being sufficient. The Court overruled the objection to the power, but excluded the deed. After some further evidence tending to show when Muldrow took possession of this land, and the extent and character of that possession, defendant rested. Plaintiffs offered in evidence a bond from John A. Sutter to them for this land, dated January 26th, 1850, and a receipt on the back of it, of the same date, for $2,000 of the purchase money; also, Sutter’s receipt, dated May 4th, 1850, for $8,060—part of the purchase money for this land. The signature of Sutter to the bond for title and the two receipts were admitted to be genuine. Defendant objected to the introduction of the bond of January 26th, 1850, upon the ground that it was void for irrelevancy and uncertainty, and because plaintiffs did not propose to charge defendant with notice thereof. Plaintiffs then read the deposition of Samuel Norris, and introduced Julius Wetzlar as a witness, who testified as to what land was sold and intended so to be, by the bond of January 26th, 1850, to which he was a subscribing witness. The Court sustained defendant’s objection, and excluded said bond and notes, to which plaintiffs excepted. Plaintiffs then proved by H. A. Bonner, that in March, 1850, Cooster surveyed as much of this land as could then be surveyed, and plaintiffs took possession of it, and leased a portion of it to some men for a garden. Defendant then called J. C. Zabriskie as a witness, who testified, that in the early part of April, 1850, Henry A. Schoolcraft, who was then acting as attorney in fact for Sutter, and defendant Muldrow came to his office; that Muldrow had a letter from Sutter, directed to himself and Schoolcraft, in which Sutter stated that he had sold to Muldrow the land in dispute for $2,800, two hundred dollars of which had been paid, and the balance was to be paid in three equal payments of six hundred dollars, for which Muldrow was to execute his notes, and reform the lease so as to relinquish his right to purchase the balance of the land leased; that Muldrow was to have a bond for forty acres of [511] the land in dispute, and the balance of the land in dispute he was to have at any time during the continuance of the lease, upon the payment of eight hundred dollars additional; that Muldrow then and there executed the three notes for six hundred dollars each; and Schoolcraft, as the attorney of Sutter, executed and delivered to Muldrow a bond for the forty acres, and changed and reformed the lease. The Court found the following facts in the case: 1. That on the third of May, 1850, John A. Sutter, by deed of that date, conveyed this land to plaintiffs, and on the twenty-ninth day of October, 1850, executed to them another deed for the same land. 2. That on the fourteenth day of December, 1849, Sutter, by School-craft, executed to Muldrow a lease for this land, giving to him therein the privilege of purchasing this land during the continuance of the lease. 3. That Muldrow, immediately after the date of said lease, took possession of a portion of the land, and had held it ever since. 4. That on the seventh day of April, 1850, Sutter and Muldrow entered into such agreement as stated by Zabriskie, and that on the ninth day of April, 1850, the lease was reformed; defendant executed the three notes for six hundred dollars each, and Schoolcraft gave him a bond for forty acres of the land, and that the balance of the land was to be conveyed upon the payment of eight hundred dollars, in addition to the notes. 5. That, prior to the twenty-second day of October, 1850, Muldrow paid the $2,800, and Sutter, by Fowler, his attorney in fact, on that day executed to the defendant a deed for the land in controversy. 6. That when plaintiffs purchased of Sutter, they had actual notice of defendant’s equity and interest in the land. Upon the facts so found, the Court rendered a general judgment for defendant. Muldrow went into possession shortly after this lease, and made improvements. By the fifteenth of April, 1850, he had the land inclosed. It seems to us that the merits of this controversy depend upon the construction and effect of this lease, and of the power of attorney under which it was made, and the subsequent contract for the purchase of the property, in pursuance of the preemption right in the lease. To the title of the defendant as arising from these facts, two objections are urged—1. That the power of attorney from Sutter to School512 craft did not authorize the contract with this condition. 2. That if it did, no contract for this land has been shown. 1. This power was executed on the twenty-eighth "of July, 1849. It appoints Schoolcraft Sutter’s attorney, for him and in his name, to “ superintend my (his) real and personal estate, to make contracts, to settle outstanding debts, and generally to do all things that concern my (his) interest in any way, real or personal whatsoever, giving my (his) said attorney full power to use my (his) name, to release others or bind myself (himself) as he-may deem proper and expedient; hereby making the said Schoolcraft my (his) general attorney and agent, and by these presents ratifying whatsoever my (his) said attorney may do by virtue of this power.” This instrument was construed by this Court in Billings v. Morrow (7 Cal. 171). It was there held insufficient to authorize the attorney to convey real estate. The Court say: “ The power is limited and special, and cannot be extended by implication to other acts more important in their character than those expressed 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.” Without stopping to inquire whether the point actually decided in this case—the power to convey real estate—be within the rule thus given, we do not feel disposed to extend the doctrine asserted. In consistency with this case, we can hold the power of the attorney to make an executory contract of this character. The language of the power is express, “to make contracts;” these words are used in connection with the principal’s real and personal estate; and this language is found associated with words implying a large discretion and control over the general subject of the business of the principal. We cannot see that this office of making contracts is not quite as specific a purpose as any other intimated in the letter; and we cannot find any limitation upon the character of contract contemplated which should exclude the particular one contained in this lease from the operation of the power. (Sullivan v. Davis, 4 Cal. 292; Hunter v. Watson, 12 Id.) 2. Assuming the authority of Schoolcraft to make this lease, with this provision in it, the next question is, as to the effect of tills clause. The privilege conceded to the lessee to purchase within the term of the lease is as much a term of the contract, and binding upon the lessor, as any other term of the instrument. The lessee, it is true, was not bound [513] to purchase; but, upon a good consideration, the lessor bound himself to sell upon certain terms if the lessee wished to buy. It may be that this was only a proposition until accepted by the lessee; but upon his acceptance it became a valid agreement. It is not easy to perceive why a man may not as well agree to sell property upon the condition that another will consent to buy, as upon any other condition, or absolutely. The agreement is not the less a contract because it merely provides for, or is in advance of another contract, than if it were incorporated in the ultimate contract; or, in other words, a man may as well bind himself to make a contract, as to bind himself by contract, and the first as well partakes of the nature and essentials of a valid agreement as the last. The provision here presents a stronger case for the application of this principle than the lease in the case of Laffan v. Naglee (9 Cal. 662); for in that case the argument of the appellant’s counsel was directed to show that the clause was not operative because the lessor did not bind himself to sell at all, even if the lessee desired to purchase. Tet it was held there that this was a binding agreement. (See also, 18 John. 174; 7 Cowen, 286.) 3. Having seen that this lease of the fourteenth of December, 1849, was a valid instrument, and that this preemptive clause in favor of the lessee was a valid stipulation, the equity of Muldrow attached upon the execution of this paper, as against Sutter, to have an execution of this agreement. 4. This brings us to consider the effect of the subsequent arrangement, as proved by the testimony of Zabriskie. We have already referred to the proofs upon this point. We see nothing improbable in this statement—certainly, nothing which we could reject after credence had been given to it by the Judge below. There seems to be nothing wanting in the letter of Sutter to Fowler and Muldrow to make a perfect agreement, unless it be the want of a date; and this, whether we regard the Spanish law or the common law as governing the transaction. But we are not disposed to consider this matter of a date to the letter, containing the terms of the arrangement and purchase, as indispensable. We presume the letter was, as usual in such cases, dated; but if it were not, the transaction itself was closed by Fowler, and the notes of Muldrow taken on the ninth of April, 1850. If any omission in the agreement as to the date occurred, we presume it could be supplied by the notes taken in execution of the agreement by the agent a day or two after the arrangement was made. If we are right in this [514] view, we need look no further; for we find a valid agreement prior to any rights of the plaintiffs; possession of the premises; an execution of the executory agreement; and notice given to plaintiffs of the rights of the defendant when they acquired their claim. This equitable title, therefore, for all purposes of the defense of this action, would be sufficient to protect the defendant against the claims of the plaintiffs. But the point that the agreement does not cover all the land in dispute is well taken. The land leased by Sutter to Muldrow is described in the lease as “ land lying along the American fork, bounded by said fork, and running down to land owned by Mark Stewart, thence easterly and north-easterly along a slough to the north of A street, and following the bank of said slough around where the high land slopes to said American fork,” etc. The true construction of this description fixes the boundary on the slough, and the words “ around where the high land slopes,” if they have any meaning at all, can only be applied to the bank or high ground adjoining the slough. To reject a definite for an indefinite boundary would be to violate all legal rules upon the subject. We see nothing in the evidence to justify the conclusion that the subsequent agreement referred to any other land, and the only particular in which the lease is stated to have been reformed was in relation to the right of Muldrow to purchase. The land outside of the slough is included in the deed of May 3d, 1850, under which the plaintiffs claim, and the title thus acquired is prior and superior to any claim upon the land on the part of Muldrow. The judgment is therefore reversed. We think it better, in order that the facts in the case may be fully elicited, to remand this case, that it may be tried de novo if the parties desire. Ordered accordingly.