Prentiss v. Blake

Kellogg, J. This 'is an action of ejectment for land in Wheeloek, to which the plaintiff claimed title by virtue of a levy and set off on an execution in his favor against David Felker, and of a former recovery in an action of ejectment for the same premises against the same David Felker. The defendants respectively claimed title to parcels of the same premises under David Felker, jr., the son of said David Felker, by intermediate conveyances which transferred his estate therein. It was conceded by both parties that the land was originally owned by T. J. Cree, and that it was conveyed by said Cree on the 30th September, 1847, by a deed, to a grantee who is named therein as “ David Felker, jr., of Barton, in Orleans county,” audit appeared that the two Felkers, father and son, at that time both resided in Barton. The plaintiff’s evidence tended to show that thg father made the bargain with Cree for the purchase of the land, and agreed with him upon the price, and the terms of payment, and paid to him one hundred dollars at the time of the execution of the deed, and executed to him several promissory notes for the balance of the purchase money, and also a mortgage to secure the payment of the same, signing both the notes and the mortgage with the name of “ David Felker, jr.,” and said nothing about purchasing the land for any one but himself, and acted throughout the transaction apparently in his own behalf; that Cree supposed that he was purchasing for himself, and that’his name was in fact David Felker, jr.; and that the said Felker, the father, moved on to said land immediately after said purchase, and occupied the same for several years as the apparent owner, and also that he paid to Cree several of the said promissory notes which first became due. It was conceded on the part of the defendants that they each had knowledge of the plaintiff’s claim of title when they purchased their respective parcels of the land in controversy, and that David Felker, jr., the son, when he conveyed the land to their grantor, gave to him a bond of indemnity against the plaintiff’s levy; and this suit was defended by said David Felker, jr., the son. The defence set up was that the said David Felker, the father, in making the purchase of the land of Cree, and in the negotiations connected [465] therewith, and in taking the deed from Cree, and in making the payments which he made to Cree, was in fact the agent of his son ; that the money so paid was the money of the son and not of the father ; and that the son paid the balance due upon the notes executed for the purchase money. Under the charge of the court, the jury found, from the evidence in the case, that the father was in fact employed by the son as his agent to make the purchase for him of Cree ; that the son furnished the money to pay for the place; and that the father was in fact acting in behalf of the son in taking the deed, though his agency was not disclosed to Cree, and Cree supposed that the father was the man to whom he was making the conveyance ; and the jury returned a verdict for the defendant. The plaintiff requested the court to charge the jury that if the father made the purchase of the land of Cree in such a manner that Cree supposed that he purchased it for himself, and that he was the person to whom he was conveying the premises, then the title vested in him, and the plaintiff would be entitled to recover, though in fact the father was acting as the agent and on behalf of the son ; but the court declined so to charge. The plaintiff’s grounds of exception to the instructions given to the jury are in substance the same which are applicable to the omission of the court to recognize this ' proposition, — the exceptions taken by the plaintiff being applicable to the charge, and the omission to charge as requested, in this particular. The case presents facts of a peculiarly novel and anomalous character, but the real question is, to whom did the legal title pass under the deed executed by Cree ? The addition of “ jun, ior ” is in law no part of a person’s name, but it is used as merely descriptive of the person, and is assumed, applied, and discarded at will. Brainard v. Stilphin et al., 6 Vt. 9; Blake et al. v. Tucker, 12 Vt. 39; Isaacs v. Willey et al., 12 Vt. 677. Its use in this deed as an addition to the name of David Felker-as the grantee is not therefore necessarily conclusive as a descrip, tion or designation of the person to whom the title was trans, ferred, if two or more persons will answer the same and the other matters of description in the deed. The addition is at the best but presumptive evidence that of twq persons bearing the' [466] same name the person thus designated is the younger. In this deed the grantee is named as “ Latid Felice,-, jr., of Barton, in Orleans county,” and it appears that there were two persons of the name of David Felker who resided in Barton at the time of the execution of this deed, one of whom was the father of the other. The deed itself, consequently, does not conclusively determine which of these two persons answers the descrption of the grantee, though it furnishes a presumption by the use' of the word junior, added to the name of the grantee, that this addL tion was intended to designate the younger of the two ; but this is a presumption which is subject to be controlled by evidence aliunde, because in fact the father might have used, or been designated by, this addition. Whenever the description of the grantee, as contained in the deed, is equally applicable to two or more persons, the aid of extrinsic evidence must be sought to determine which of them was in fact the grantee, and this would be a question of personal identity. The plaintiff claims that this question must be determined by the intention of the grantor; and the defendants insist that the actual purchaser should be considered as the grantee intended, if he will answer the description of the grantee named in the deed. An agent may be authorized by parol to treat for and buy an estate, or to act upon a contract or sale of premises ; and, though he purchase in his own name, yet the fact of the agency so as to charge the principal may be made out by parol evidence, though the principal was not known to the other contracting party at the time the agreement was made, and the agent acted as, and appeared'to be, the principal. Sugden on Vendors and Purchasers, (13th Ed.,) p. 118 ; Chitty on Contracts. (10th Amer. Ed.,) pp 222, 240. The rule is equally applicable to contracts for the sale of real and personal property, the contract of the agent being in law the contract of the principal. There is an exception in the case of a deed, which cannot be executed by an agent so as to bind his principal, unless the authority to execute the instrument be conveyed by a specialty. In the large class of commercial transactions conducted through the agency of factors and brokers, the cases are very frequent in which the principal is personally liable upon any contract of his agent, if macje [467] within the scope of the authority given, although the agent made the bargain in his own name, and appeared at the same time to act for himself, so that in fact the principal could not have been trusted, or his credit or responsibility regarded or required, at the time of the bargain. The rights and liabilities arising from the contract of sale are attached to the real principals when they are discovered or disclosed. In this case, then, Cree would have • been entitled to an action for the price of the premises sold against the real principal, although the contract was made by an agent who appeared at the time to act for himself, so that Cree could not have supposed that he was dealing with him otherwise than with a principal, and was in fact ignorant of his real character. If the truth of the transaction would thus affect the remedy of Cree against the real principal, it is difficult to find any ground upon which we could deny to such principal the benefit of a contract upon which he is liable. The intention of Cree in respect to the grantee should not therefore be regarded as necessarily determining the question -of personal identity, when it appeal’s, as it does in this case, that the real principal in making the purchase answers the description of the grantee given in the deed. The case is not like that of the right or 'title to an office in which the intention of the elector may be material, but, even in such cases, the intention of the voter is to be inferred not from evidence given by him of the mental purpose with which he deposited his ballot, or his notions of the legal effect of what is contained or'omitted, but by a reasonable construction of his acts. The People and Hommell v. Saxton, 22 New York, 309. Whatever may have been the right of Cree, arising from the conduct of the elder David Felker in personating his son by executing notes and a mortgage in his name, we do not think that third persons, who then had no connection with, or interest in, the transaction, are entitled to assume the position of Cree, or stand upon his right, against the equity of a real principal who furnished the money to pay the consideration for the conveyance. We regard the only important question which the case presents as being, which of the two Felkers, the elder or the younger, sustained the character of the real principal in the transaction [468] with Cree ; and this was a question of fact which, in our opinion, was submitted under proper instructions to the jury. Our conclusions upon the evidence in the case might have been differ* ent from those established by the verdict, but the finding of the jury on an issue of fact properly submitted is not subject to revision in this court. The judgment of the county court in favor of the defendant is affirmed.