Bush v. Van Ness

The opinion of the court was delivered by Williams, Ch. J. — To maintain this action against the defendant, the plaintiff was required to prove the commencement of the suits mentioned in the declaration, and that they were commenced by the defendant without any authority from him. For this purpose, the record of the judgment and the depositions of Mr. Van Ness were introduced. It apears that the writs,in the suits commenced in the circuit court,were made by Mr. Richardson, but were entered in court by the defendant. On this part of the case we do not discover but that the views of the county court were correct. In defence, it became important for the defendant to show the agency of Holloway Taylor, by whose directions he commenced the suits, or that Taylor was the owner of the lands sued for ; for, if the title or claim was in Taylor, and Bush held the legal title for the benefit of Taylor, the authority of Taylor to commence [91] suits therefor would be'implied. -.The defendant endeavored to show the agency of Taylor, and introduced testimony to show that he acted as agent. The plaintiff, to resist the inference arising from this testimony, introduced copies of a power of attorney from Bush to Taylor and the revocation thereof. The effect of this was to cut down the defence, and to show that those acts of agency, op which the defendant relied, were in pursuance of an existing authority at the time, but that such authority had ceased, and thus drive the defendant to show an authority after the date of the revocation. The copy of the record of the power of attorney, and that of the revocation, were objected to by the defendant, but admitted by the court. Having been admitted, they proved the authority and the revocation, and were so treated by the parties and by the court. No question was made whether it was necessary to prove notice of this revocation to the defendant, but it appears to 'have been considered as necessary to establish the fact of notice, and the attention of the court was drawn to the subject. It would seem that the fact, whether notice was given, would depend on the view which the court might take as to the necessity and effect of recording the power or revocation. If they were required to be recorded, the record was constructive notice to all; if not required, the record would afford no evidence of notice. The question now arises whether the power of attorney and the revocation thereof were proved by the proper testimony, because there is no doubt that they had a material effect in determining the issue then tried. The object of recording a power of attorney, authorizing a person to convey real estate, is to enable the party, deriving title through a deed executed by another, to show his authority, and without such record it would always be required, when the proof of the deed was in controversy, to prove the authority of the person executing it. For this purpose, the record is undoubtedly evidence. Whether.if it contained an authority to commence suits or do any other acts in relation either to real or personal property, it would be evidence of such authority, may well be questioned. It is, however, unnecessary to settle this question, as the object of introducing it was, principally, to show the existence of an authority preparatory to showing that the authority was terminated by a [92] revocation. When the power of attorney was in evidencej it tended to show the fact for which the defendant was contending, to wit, the agency and authority of Taylor to commence and prosecute suits in the name of Bush. The next question which arises is, whether the copy of the record of the revocation of the power of attorney was admissible in evidence. The statute makes no provision for such record, nor could a statute very well make such provision ; and furthermore, if any attempt was made by statute for that purpose, it must be wholly ineffectual. The person who wishes to recall or revoke an authority given, executes an instrument in writing and delivers it to the person, against whose acts he is desirous of protecting himself, and whose power he wishes to terminate. It is, and must be, optional with the person thus receiving a revocation, to record it or not, and thus make public the fact, that his authority is countermanded. Taylor was not compelled to record this letter of revocation, and even if the revocation had been placed on the records of any town, unless the record of the revocation was coextensive with the power, and inserted on the records of every town where the authority granted could be exercised, it could not operate as notice of the revocation. When a power of attorney is revoked, the attorney can no longer execute any conveyance in the name of his principal, without being guilty of a crime, nor could the principal be affected by any acts or deeds of 'his, after the authority was terminated. The purchaser from him must see to his authority and protect himself by such covenants from the agent as he may deem for his interest, but can derive no better title from one having no authority to convey, than he could from a person having no title or shadow of title. The evidence, offered in this case to show the revocation of Taylor’s authority, was improperly received by the county court, and for that reason their judgment must be reversed, as there was no other conclusive evidence to show that fact, and the jury may have formed their verdict upon the evidence which we consider as inadmissible.