Rountree v. Denson

Oassoday, J. The mere fact that the wants of William Davidson were not recognized and supplied by J. MoDougal Davidson, his relative and the object of his bounty, but were relieved by the plaintiff, is no ground for sustaining an action of ejectment in favor of the latter and against the former. In such an action the plaintiff must recover upon the strength of his own title, and not on the weakness of the defendants’ title. Gardiner v. Tisdale, 2 Wis., 152. — 527 — The finding of fact that the lands in question were conveyed to the plaintiff on May 14, 1878, by William Davidson, as attorney in fact for J. MoDougal Davidson, by virtue of the power of attorney mentioned, seems to have but very little support from the evidence. No such deed seems to have been present in court, much less offered in evidence. The only testimony in support of that finding was a statement made by the plaintiff, while on the stand as a witness, under a direction of the court for him to make a statement of the whole matter. The memory of the witness as to dates and details is not very clear or satisfactory, and it may be that he referred to the deed of November 14, 1873, from William to the plaintiff, offered in evidence. If there was still another deed given in 1878 by him as attorney in fact for J. MoDougal, it seems to us it would have been offered in evidence by the vigilant and careful attorney for the plaintiff. For the purposes of this case, however, we 'shall assume that William went through the form of giving such a deed under the power of attorney in evidence to the plaintiff, in May, 1878, as found; still we are forced to hold that the power of attorney gave him no authority to make such a deed. The manifest purpose of the power of attorney was to give authority “ to accept the service of any process ” “ in order to procure a partition ” of the lands mentioned, or “ to deed and properly convey ” the same, and “ to manage and control . . . such proceeding or suits, . . . and generally to do any and all things necessary to be done and performed in or about the procuring any such partition.” Such being the manifest object and purpose of the power of attorney, its meaning and the authority under it, was in nowise enlarged by the general expressions and words of ratification and confirmation therein contained. The rule is universal that where “there is a power of attorney to do a particular act followed by general words, these general — 528 — words are not to be extended beyond what is necessary for doing that particular act for which the power of attorney is given.” This is the language of Lord Campbell in Perry v. Holl, 2 De Gex, F. & J., 48. To the same effect are Esdaile v. La Nauze, 1 Younge & C., 394; Attwood v. Munnings, 7 Barn. & C., 278; and many other cases which might be cited. In the last case it was held by the King’s Bench “that the general words in the power of attorney were not to be construed at large, but as giving general powers for the carrying into effect the special purposes for which they were given.” These cases are in harmony with the decisions of this court. Chilton v. Willford, 2 Wis., 1; Dodge v. Hopkins, 14 Wis., 630; Gee v. Bolton, 17 Wis., 604. Thus construed, it is apparent that the power given by the instrument was fully exercised and exhausted by the mutual conveyances made in 1866 for the express purpose of such partition. The partition of the lands having thus been made by virtue of the power of attorney, and that being the sole purpose and object of the power, it is evident that any subsequent attempt by the attorney to convey the land for his own private benefit would be wholly unauthorized and necessarily treated as a nullity in ejectment. Campbell v. Campbell, 57 Wis., 288; Meade v. Brothers, 28 Wis., 689. These things being so, it follow.s that even if there was a deed given by the attorney in 1878, as found by the court, still it would be unavailing to the plaintiff. It is urged that J. MoDougal Davidson got no title to the land in question by virtue of the deed to him from the plaintiff in 1866, for the reason that the plaintiff had, in effect, conveyed the same to William Davidson eighteen years before; and that seven- years after the plaintiff’s deed to J. MoDougal Davidson, William Davidson had conveyed the same back to the plaintiff, and hence, that the plaintiff was entitled to recover. To this, it seems to us, there are two, if not three, good answers. — 529 — 1. The deed from William Davidson to the plaintiff in 1873 was preceded by an agreement between them, whereby the plaintiff agreed to advance money to William from time to time, which was done, and to secure the payment of which William gave to the plaintiff the deed of 1873, and at the same time took back a defeasance in writing signed by the plaintiff. The substance of the transaction seems to have been a mortgage, and, as the plaintiff was never in possession, it would seem to be insufficient to entitle the plaintiff to recover in ejectment. 2. The deed from the plaintiff to J. McDougal Davidson in 1866 covered, or rather was intended to cover (as conceded and found by the court), the land in question and another piece of twentyacres, and recited.a consideration of $100, and contained covenants of warranty to the effect that the plaintiff and his wife, their heirs, executors, and administrators, would warrant and defend the title to the premises to the said J. McDougal Davidson, his heirs and assigns, forever, against the lawful claims of all persons. Prior to that conveyance, a deed had been taken from Grant county to J. McDougal Davidson, and the plaintiff had seemingly recognized his undivided one-half interest in the two forties (including the land in question), and accepted from him, by way of partition, a deed to himself of twenty acres in each of the forties, with covenants of warranty. These mutual deeds of partition must be taken and construed together as one instrument in the light of all the surrounding circumstances to which they obviously and directly point. Freeman on Cotenancy, § 406. Upon the evidence in the case, we do not think we would be justified in holding that the deed from the plaintiff to J. McDougal Davidson was wholly without consideration. On the contrary, we must hold that it was given upon a good and valuable consideration. Beyond question the general rule is that a party conveying land by deed containing such covenants is estopped from — 530 — setting up against his grantee, or those claiming under him,, any after-acquired title to the same land. Such after-acquired title inures eo instanti, by way of estoppel to the use and benefit of his grantee, his heirs and assigns. Herman on Estop., §§ 267, 273. It is claimed, however, that the rule is not applicable in case of the partition of lands held by tenants in common by mutual conveyances containing such covenants, and Doane v. Willcutt, 5 Gray, 328, seems to be relied apon in support of such contention. In that case there was a qualified covenant, in which each party covenanted that the other should forever have and hold the land conveyed, in severalty, free and discharged of all right, title, interest or claim of them (the covenantors), “or of their heirs or assigns, or of any persons claiming from, by, or under them, or any of them,” while the outstanding paramount title which was acquired by the plaintiff after he and the defendant had made partition was not derived from himself, as here, but from a third party, and was superior to any title which either party to the suit had ever possessed. S. C., 16 Gray, 368. Such a covenant in such a deed may well be construed as relating to the chain of title through which the parties making partition mutually claim, to the extent covered by the covenant, and not to a different and independent source of title. It would seem that an old statute in the time of Ilenry Till, gave to all joint tenants and tenants in common the right to make partition between them by writ in like manner and form as coparceners by the common law had been and were compellable to do, with the proviso that every such tenant and his heirs, after such partition made, should and might have aid of the other such tenant or his heirs to the intent to deraign the warranty paramount, and to recover for the rate, as was used between coparceners after partition made by the order of the common law. Rawle on Cov., 474; Weiser v. Weiser, 5 Watts, 279. But the right thus given by statute does not exist in case of a voluntary parti — 531 — tion by mutual conveyances. Rawle on Cov., 476, 477; Freeman on Cotenancy, §§ 409, 410; Weiser v. Weiser, supra; Rector v. Waugh, 17 Mo., 13. In case of such voluntary partition by mutual conveyances between such tenants, their right to recompense in case of loss depends solely upon the covenants contained in the deed, and not upon any implied warranty. Rawle on Cov., 477. To this effect is a learned and able opinion in Weiser v. Weiser, supra. Here the claim is that the plaintiff, after having parted with his interest in the land in question by deed to William, made partition with J. McDougal, and conveyed to him the land the same as though he still had an interest in it, and afterwards got a conveyance back from William, and is now the owner. This claim is in direct conflict with the plaintiff’s covenants of warranty contained in his deed, and hence, without citing or attempting any analysis of the numerous cases on the subject, or entering into any discussion, we must hold that the plaintiff is estopped, by the express covenants in his deed, from recovering in this action by showing that since giving the deed containing these covenants he had obtained a recon-veyance from the person to whom he had previously conveyed. Rogers v. Cross, 3 Pin., 36; Wiesner v. Zaun, 39 Wis., 188; House v. McCormick, 57 N. Y., 310. 3. Since William Davidson recognized the right of J. McDougal Davidson in both forties as early as 1866, we must infer that he occupied the lands as tenant of and in subordination to J. McDougaVs title, and not adversely to him. This being so, and had there been no mistake in the description of the land in the deed under which J. McDoxigal Davidson had claimed the title since 1866, the ten years’ statute of limitation would have been a bar to the plaintiff’s recovery. McMillan v. Wehle, 55 Wis., 685. Whether the mistake in the description prevented the defendants from claiming title under a written instrument within the mean — 532 — ing of sec. 4211, R. S., it is unnecessary here to determine. By the Court.— The judgment of the circuit court is reversed, and the cause is remanded with direction to enter judgment for the defendants.