Holladay v. Dailey

Wells, J. I will consider first the question, whether the letter of attorney under which Hughes acted, or assumed to act, on the conveyance to Whitsitt, imposed as one of the conditions to the exercise of his authority, that the conveyances made in pursuance thereof should be in the names of Holladay and his wife. This is purely a question of interpretation, and the intent of the instrument is to be derived solely from the words used therein, read in the light which the situation of the parties, so far as this appears, affords. It is perfectly clear, as we think, that, if the attorney had united Mrs. Holladay with her husband, as grantor, on the conveyance which he assumed to execute, it could have effected no purpose, for, though the wife united in the letter of attorney, she had no dower in the lands, as it would seem was supposed; it has not been shown that she had any other estate vested or contingent upon which her conveyance could operate, and we will not presume such estate in the absence of proof thereof; neither could she have bound herself by any covenant in the conveyance, for, under the statute, as it then stood, the power of the wife to contract extended only to the sale and conveyance of her separate estate, real and personal, and to the carrying on and contracting about any trade or business conducted upon her separate account. Acts 1861, p. 152, §§ 2, 3, 10. All the contracts of a feme covert beyond these limits were still, as they were at. common law, absolutely void. The statute did not authorize the wife to warrant her husband’s title to realty or to covenant for his act or default in any respect whatever ; and, in this case, the wife having no estate in the realty, which she could convey, and having no power to engage in regard to her husband’s estate, it is clear that [465] she could not authorize another to so convey or engage for her, and the letter of attorney was, therefore, as to her, absolutely void. It was as if her name had not been in serted in it, or subscribed to it, the attorney could do no act thereunder which should in any way charge her estate, or bind her, or those in privity with her. The conveyance which the attorney did make was quite as effectual to this, as if her name had been inserted therein, and by him, or by herself, indeed, subscribed thereto. Nevertheless, if the husband, by the letter of attorney, has required that all conveyances thereunder shall be in the joint names of himself and the wife, then, howsoever empty and profitless the form, the attorney was not on this account merely’ at liberty to disregard it. The principal, in an authority to convey lands, may, I suppose, lawfully require that the conveyance shall be upon parchment or attested by certain witnesses, or shall be by deed indented, and not otherwise, or he may impose any other frivolous and impertinent condition which caprice may suggest; and the mere vanity and ineptitude of the condition will not avoid it; for, though the law requires it not, yet the owner of the lands may ; and if the condition be merely indifferent, and not either malum proMMtum nor malum in se, his will shall be observed. But here, as I think, the condition which it is said was imposed upon the exercise of the agent’s authority was not only vain, but illegal; for it is manifestly against public policy, that our land records should be incumbered by invalid conveyances, purporting to be executed by persons incapable in law, and so holding out empty promises. If such conveyances be tolerated — if one may do by another what he may not do in his own person —• if the husband may, by way of condition or in any other way, authorize the attorney whom he alone has constituted to subscribe the wife’s name to a deed by which she cannot be bound, inserting therein covenants and recitals which assume or purport to be hers, it may probably happen that ignorant and incautious persons will be led to purchase the estate on the faith [466] of the wife’s supposed ability and liability to respond in damages in case of the failure of title, or on the faith of some imagined estoppel. If one may, in this manner, assume to have’authorized his wife’s name to be subscribed to a conveyance or covenant, I do not see why he may not exercise the same liberty with that of his neighbor. Certainly, the recognition of such a power or right will serve no good purpose, and it may breed uncertainty in titles and unprofitable litigation. I am therefore of opinion that the construction for which the counsel for plaintiff in error has so ingeniously contended will render the letter of attorney nugatory, for, by this construction, it imposes a condition precedent, which the law will not suffer the attorney to perform, and it is said that if one grant an estate upon condition precedent which it is unlawful .to perform, here, both the estate and the condition are void, for an estate can neither commence nor increase upon an unlawful condition (Shepherd’s Touchstone, 132), and so I conceive is the law where a power is sought to be created upon like condition. Though, possibly, it may better be likened to a bond with condition repugnant to mere positive law, in which case it is said the condition only is void, and the bond shall stand single (2 Bl. Com. 300), but I think not. Therefore, to effectuate the manifest purpose of the principal— namely, to convert these lands, which were at a distance 'from his place of residence, and so beyond his personal supervision and control, into money — and in order that the letter of attorney may not utterly fail of effect, I think we are authorized to read it as if the name of the wife were not contained therein (as in effect it is not) and as if the authority had been in terms “ for me and in my name to convey,” etc. And this, though it may seem to do violence to the text of the instrument, is warranted by authority; for it is said that: “If divers join in a deed and some are able, and some are not able, this shall be said to be his deed alone that is able” (Shepherd’s Touchstone, 81), that is to say, the [467] words of grant, confirmation and the like, which are written in the plural shall be read in the' singular, for if taken in the plural, there are none to whom they can be ascribed. As to the other questions which have been argued, we think that the conveyance of the attorney, under which the defendant derives title, was well enough executed, and that whether it was acknowledged in conformity with the statute or not is a matter of indifference, for the acknowledgment is but a means of proving the execution and authenticating the record, when the instrument shall be thereafter recorded; and the statute which requires it being in the affirmative, and without any negative implication to exclude the common law, the conveyance will be valid, as between the parties thereto and those having notice thereof, even though not acknowledged at all. The judgment of the district court is therefore affirmed. Affirmed.