Barr v. Schroeder

By the Court, Rhodes, J.: The motion for a nonsuit was sustained on two grounds. The first ground is that the deed of trust did not pass the title from Doll. Doll conveyed the property in action, together with other lands, to Simpson in trust; to sell so much thereof as he might deem proper, to pay the promissory note of Doll to Hawkins, upon Doll’s failure to pay the same, and on the demand of the holder of the note, etc.; also, to sell parcels of the land “ whenever in his opinion a reasonable price was offered for the same;” and to reconvey to Doll the portion remaining unsold, upon the payment of the note to Hawkins. The objections to the deed stated by the Court in granting the nonsuit were, that it was not signed by or assented to by Hawkins nor delivered to him. It was not necessary that it should have been signed by Hawkins. There are no covenants or conditions on 1ns part in the deed requiring that it should be executed by him ; and no rule of law is cited which [615] makes it requisite that the cestui que trust should execute the instrument creating the trust. It appears from the testimony of Doll, that the deed was delivered to Hawkins, and, if delivered to him, his assent to it is presumed. But the point need not be rested on that ground. The deed would be good as between Doll and Simpson, without any delivery to or assent by Hawkins, and indeed its sufficiency to pass the title to Simpson does not depend upon the fact of there being such a note as is therein described, or even a debt due from Doll to Hawkins. If Doll chooses to convey, and Simpson is willing to take the title, under such circumstances, they may declare such trusts as they please, and both are bound by the recitals and are estopped from denying that the legal title passed. This does not impair the right of a creditor of the grantor to question the bona fieles of the transaction. The conyeyance is valid as between the parties, though it should be held fraudulent and void as against the creditors of the grantor, on the ground that it was executed with the intent to hinder, delay, or defraud them. Questions such as migh grow out of a contest between a person claiming title through Simpson, and a creditor of Doll, could not properly arise upon the motion for a nonsuit. The deed was prima facie sufficient to pass the title, and if the defendant would attack it, on the ground that it was not executed to secure the debt therein mentioned, he must first bring himself into the proper relations with the grantor. The second ground is, that the title did not pass from Jones to the plaintiff, Jacob C. Barr. Jones executed a deed of the premises to John C. Barr, and subsequently Simpson, as the attorney in fact of Jones, executed a deed to Jacob Barr, and in it reference is made to the deed of Jones, and it is recited that by mistake Jacob C. Barr was therein called and named John C. Barr, and that the parties desire to correct the mistake and confirm the grant in said deed according to the then intention of the parties; and the premises are conveyed by the deed to Jacob C. Barr “ as well in performance of the covenants in said indenture contained, as also for and in considera [616] tion of the premises hereinbefore recited, and the further consideration of one dollar to him, the said Edward C. Jones, in hand paid by the said Jacob C. Barr, the receipt whereof is hereby acknowledged.” The deed of Jones did not transfer the legal title to the plaintiff, nor did it transfer it to any one. There is no evidence of the delivery of the deed to John C. Barr, nor, in fact, is there any evidence that there was such a person in existence as John C. Barr. Had it been shown directly that there was such a person as John C. Barr, or had the same been made to appear by presumption, by the production of the deed by one claiming through him, there would perhaps, be no difficulty in holding that the recording of the deed was evidence of its delivery; but the recording is not evidence of the delivery of the deed, unless it comes from the hands of the grantee therein named, or some one claiming under or through him. The question therefore turns upon the deed executed by Simpson as the attorney in fact of Jones. Jones executed to the Bank of Red Bluff a power of attorney, very ample in its terms, giving [the Bank authority, among other things, to lease, bargain, sell, re-lease and convey lands ; to execute and deliver deeds ; to substitute an attorney in its stead, and to credit all moneys, credits and effects received by the attorney, or the substitute, upon the note of Jones to the Bank, described in the letter of attorney. The Bank substituted Simpson as the attorney in fact of Jones. The deed executed under this power did not operate by way of confirmation of the deed of Jones, nor is it possible for it to have such an operation. A confirmation is a contract by which an act that was voidable is made firm and unavoidable. It necessarily implies a prior voidable act. A deed is an instrument in writing, sealed and delivered. Without a delivery the writing is not voidable, but it is void—a mere nullity. The execution and delivery of the second instrument—the one executed by Simpson as the attorney in fact of Jones—did not constitute a delivery of the first. It was a misapplication of terms to say that the parties desired to confirm the grant, for one of the parties to the second deed was not a party to the [617] first; the first deed was not a grant; if it was susceptible of confirmation it would have vested the title in John C. Barr ; and it is, to say the least, unusual for an agent to ratify the acts of his principal. If the second deed was of any force, it derived its value from its own execution and delivery. The same is true of the second deed in respect to the attempt to correct the first. The first deed having omitted the name of the intended grantee, the transmission of the title to the plaintiff must of necessity depend upon the second deed, in which he is described. The matter would be no clearer had the mistake been the omission of the premises intended to be conveyed. Was the second deed sufficient to pass the title of Jones to the plaintiff ? It is claimed by the plaintiff that the letter of attorney of Jones to the bank, was given for the purpose of securing the payment of his promissory note, that as such it amounted to a “ power coupled with an interest,” and was therefore irrevocable. This position cannot be maintained. The interest which the party to whom the power is given must have, in order to render the power irrevocable, must be an interest in the property on which the power is to be exercised. It is not enough that the donee of the power is interested in that which is produced by the exercise of the power. If his interest is thus limited the power and the interest cannot be coupled, for the proceeds do not arise until after the power has been exercised, and when it is exercised it is extinguished. (Hunt v. Rousmaniere, 8 Wheat. 174; Bergen v. Bennett, 1 Caine’s Cases, 1.) No interest in the land was conveyed to the Bank at the execution of the power of attorney, or was then held by it. But a power of attorney may be irrevocable, though it is not a “ power coupled with an interest.” This is often the case where the power of attorney is given as a security for the payment of money. Where the" constituent expressly agrees that the power of attorney shall be irrevocable, or the nature of the contract shows that such was the intention of the parties, he will be held to the eon618 tract, and not be permitted to revoke it, either directly or indirectly, except upon the payment of the money intended to be secured. The difficulties in the way of holding this power irrevocable are very great, if not insuperable. As already. remarked, it is most comprehensive in its grant of authority to the attorney, constituting him an universal agent. There is scarcely an act that may be performed in the transaction of ordinary business that he has not empowered his attorney to perform in his name. There is no different authority given in respect to this land, than is given over all the property and business of the constituent, and if the poweof sale in this case should be held irrevocable, it must also be held that the power granted in respect to his entire property and business was irrevocable, and he would thus be left chargeable with the debt to the Bank, but without any power to raise the money for its payment. The terms of the grant must be so plain that there is no room for construction, or it will not be held that such plenary power was intended to be made irrevocable. But it'would not seem to be necessary to claim that the power granted was irrevocable in order to uphold the deed executed by Simpson as Jones’ attorney in fact. Strike out of the deed the matters in respect to the mistake, and the confirmation and the deed still remains sufficient in law to pass the title. Those matters must be disregarded because they were impossible of accomplishment in that mode. The deed is not vitiated by their presence. Had Jones personally executed the second deed as well as the first, there would be no question that the second was sufficient to pass, and that it alone did pass the title to the plaintiff; and as the first deed did not pass the title, and "therefore did not revoke or impair the authority of the attorney in fact, the second .deed is to be regarded as if executed by the constituent. Judgment reversed and the cause remanded for a new trial.