Peters v. Farnsworth

The opinion of the court was delivered by Williams, Ch. J. Exceptions were taken to the decision of the county court, by both plaintiff and defendant. The exception taken by the plaintiff is, to the rule of damages laid down by the court. Those taken by the defendant involve the inquiry, whether the plaintiff can maintain any action against the defendant, on the facts appearing in the case; and this depends on the construction to be given to the letter of attorney from Cadwallader and Astley to the defendant, for if that letter of attorney authorized him to execute the conveyance to the plaintiff, with the covenant of warranty, the suit of the plaintiff fails. In certain sales of personal property, the agent who is empowered to sell, is authorized to give a warranty of the soundness of the article sold, on the ground, as was said by Lord Ellenborough, Alexander v. Gibson, 2 Camp. 555, that, as it is now usual, on the sale of horses, to require a [160] warranty, the agent may be fairly presumed to be acting W|thin the scope of his authority. Were we without the authority of any adjudged case on the subject, I should strongly incline to the opinion, that, inasmuch as it is usual, anc¡ customary, to insert covenants in most deeds of conveyance, more or less restricted, as the interest of the gran- , tor may require, a letter of attorney, authorizing any one to sell, and to execute deeds or assurances, would authorize the inserting in the deed or assurance, any such reasonable covenants as are usual in such deeds, limited only, by the discretion of the attorney. And it appears to me, that such a principle was recognized in the case of Wilson v. French, 2 Cowen, 195, where it was holden, that, under a power to mortgage, the agent was authorized to insert a power to sell, on default of payment. It is true, it was holden, in the case of Coles v. Kender, Cro. Jac. 571, that on a promise to make reasonable assurance of land, the defendant was not bound to executq a conveyance, with ordinary and reasonable covenants; but in the case of Lapels v. Chatterton, reported in 1 Mod. 67, and in Raymond, 190, it was said by Twisder that the law is altered, since the Coles fy Render case, as to covenants in a conveyance, if they be reasonable. It appears to me, it would but be extending the principle of the latter case to the present, to say, that, under a promise, or under a power of attorney to sell and deed, a deed with a covenant to secure the title, such as is usual, should be required. The court of appeals in Kentucky have' decided that a power to sell lands includes an authority to convey with covenants of general warranty. Vanada v. Hopkins, 22 Marshall’s R. 293. The case of Nixon v. Hyserott, 5 Johns. 58, is, however, opposed to this view and the authority of the latter case is recognised both in the 7 & 12 Johns, and 2 Cowen. Upon this subject it is very desirable that the law should be considered the same in the different states. In the case of Nixon v. Hyserott it is to be observed, that the letter of attorney authorized the attorney “ to grant, bargain, sell, release, convey and confirm in fee” to any person, certain specified lots, and that these are the operative words made use of in the granting part of a deed, and had no reference to the species of conveyance which the attorney might adopt. The further words “ to exe [161] cute,” &c. “ such conveyances, assurances,” &c. neither enlarged, extended nor limited the authority first given, but only left it to the attorney, to adopt such conveyance, as, in his judgment, might be needful to transfer the title. The letter of attorney gave no other authority, except to sell, and execute such deeds as the attorney might think necessary to effectuate the sale. It was so treated in the case of Gibson v. Colt and others, 7 Johns. 390, and Van Eps v. Schenectady, 12 Johns. 436, where the case was mentioned. In the case before us, the letter of attorney to the defendant authorized him to do all that was necessary in relation to certain tracts of land in Bakersfield and Fairfax to obtain possession, and to “ sell for the best prices, either by public ‘ auction or private contract, as he might think most advan- ‘ tageous. And, upon sale thereof, or any part thereof, and ‘ on receipt of the money, arising from such sale or sales, to ‘ give sufficient releases, acquittances and discharges for the ‘ same, and to sign, seal^ssfas^ffeatef^dl or any such con- ‘ tracts, agreements, anees, and to ‘ do and perform all sue® acts and things ¡Mr perfecting such ‘ sale or sales thereof, as shall be re- ‘ quisite and necessary m that behalf.” Fracler this letter of attorney he was bound ra^rüal&BGis^Stócts, as would be most advantageous to his^^mdnals.^ai»#to obtain the best prices, and was authorized to male such contracts or agreements — which, if under seal, would be covenants — as were requisite; and could bind his principals thereby. He could bind them to make a good title by warranty deed, or otherwise. The authority was plenary to bind the principals by a contract, covenant or agreement, to secure the title to the purchaser, and he could execute a deed, conveyance, or assurance, with such covenants as were necessary to procure the best prices and the most advantageous terms of sale. We think, therefore, that, under this letter of attorney, he was fully authorized to execute the deed to the plaintiff with the covenants therein contained, and by such covenants Cadwallader and Astley were obligated to assure the title, and the defendant did not exceed his authority and was not liable in this action. The judgment of the county court is reversed.