Alemany v. Daly

By the Court, Sawyer, C. J. : This is an action to recover the price agreed to be paid by the defendants for a portion of the west half of One Hundred Vara Lot Number Twenty-three, in the one hundred vara survey of the City of San Francisco. The plaintiff tendered a deed in due form, in pursuance of the terms of the agreement, which the defendant declined to accept, on [92] the ground that the plaintiff was unable to make a good title. The plaintiff had judgment, and defendants appeal. The facts upon which the question arises are as follows. On the 1st day of August, 1850, one Timothy Murphy was seized in fee of said One Hundred Vara Lot Humber Twenty-three, holding a valid title thereto under an Alcalde grant. On that day he executed a power of attorney, in due form, whereby he authorized Jasper O’Farrell, as his attorney in fact, “to sell the one half of Lot Humber Twenty-three, of the one hundred vara lots,” etc. Assuming to act under this power of attorney, said O’Farrell, in the name of Murphy, and as his attorney in fact, in due form, on the 8th of August, 1850, conveyed to John Sullivan “the west half of Lot Humber Twenty-three, as designated on- the one hundred vara lots,” etc., which west half includes the lot in question. On the 21st of August, 1851, by deed in due form, said Sullivan conveyed the said premises to the plaintiff said O’Farrell joining in the deed. On the same day, also, said Timothy Murphy executed a deed to the plaintiff, conveying the same premises, but t-his latter conveyance was expressly subject to a condition, that the grantee and his assigns “shall and will at all times hereafter keejD and use the hereby granted premises for the uses and purposes of a church of the Eoman Catholic persuasion,” etc., and should the property at any time be used or applied to any other purposes, then the grant to cease and determine, and the property revert to the grantor. It is claimed that the power specifying “the one half,” did not authorize the attorney to convey the west half of the lot, or any separate half in severalty, but only an undivided half of the whole lot; that the attorney, therefore, exceeded his power in assuming to convey the whole of the west half in severalty, and that his conveyance at best only operated to transfer an undivided half of the west half; that the subsequent conveyance by Murphy himself was subject to a condition which would be broken, and cause the property to revert to the grantor, Murphy, by the very act of convey [93] anee from plaintiff to defendants; and for this reason they would not obtain a title. The power of attorney says “the one half,” without saying the undivided one half, or the west half, or the east half, or the north half, or the south half—in short, without saying which half. We think the fair and true construction is, that the particular half was left to the discretion of the agent. An estate in severalty is, certainly, ordinarily more advantageous and valuable to a party than an estate in common, and we see no good reason, when the matter is thus left open, why the agent should not be regarded as vested with authority to sell in such way as to render the transaction most advantageous to both parties. He was authorized to sell one half of the lot, and he sold one half and no more. He was not in terms limited to any particular half, or to an undivided half of the whole. He would be much more likely to find a purchaser for, and the principal would be much more likely to desire to sell, the whole interest in one half of the lot, than an undivided half of the whole; and business men generally, would, at the first blush, be likely to understand from the terms of the power that the sale of the entire half of the whole lot was contemplated by the party making the power. Such a sale would ordinarily be most advantageous and most desirable to both seller and buyer. Wé do not think the agent exceeded his power. Upon the face of the papers alone, we think the title to the west half of Lot Humber Twenty-three, passed from Murphy to Sullivan, and from Sullivan to plaintiff. Ho authority leading to a different conclusion has been brought to our notice by appellant’s attorneys, and we now remember none. This view renders it unnecessary to examine the other questions, for at the time of the execution of the conveyance from Murphy to plaintiff, there was no estate remaining in him to convey upon which the condition could operate. We think the plaintiff can make a good title. The judgment must, there [94] fore, be ■affirmed, and it is so ordered, and the remittitur directed to issue forthwith. Rhodes, J., dissenting.