Davenport v. Parsons

Christiancy J.: Was the deed from Thomas Emerson and Frederick Pettis, purporting to be executed by their attorneys R. H. Waller and Curtis Emerson, to said Frederick Pettis, properly excluded by the Court below? This is the only question necessary to the decision of this cause. The deed was objected to on four distinct grounds; but from the view we have taken of the case, we do not [50] deem it necessary to allude to the second and fourth grounds, of objection, relating to the anomalous character of the deed growing out of the fact that one of the grantors is. also the grantee. Nor is it necessary to pass definitely upon the form of the acknowledgment, though upon principle, and from the authorities cited, we are inclined to think the acknowledgment would have been sufficient had the deed been other- • wise properly executed. But the fourth ground of objection to the deed is,, that it was manifest from the terms of the deed offered in evidence, that the same was not made under the power of attorney given in evidence, but purported to be made under a joint power given by Thomas Emerson and said Pettis, and no testimony was given to establish such joint power. We think this ground of objection unanswerable. The deed did not purport to be executed by the grantors in person, the owners of the land; its validity must therefore depend entirely upon the power vested in the attorneys by whom it was executed. But to make a valid deed under a power of attorney,'it was essential that there should have been an intention on the part of the attorney or attorneys to execute the deed under and by virtue of the power, or at least that the contrary intention should not appear. Now whatever might be the effect of such a deed as this, if executed by the grantors in person, or whatever may have been their object or that of the attorneys in making Pettis, the grantee, also one of the grantors, the fact that they did intend thus to join them, and that they intended to execute the deed in the name and on behalf of both, is, we think, extremely probable, if not clearly manifest from the face of the instrument and the form of the execution. It would seem therefore to follow that the attorneys must have intended to act either under a joint. [51] power from the two grantors, or a several power from each; though, as we shall presently see, it is not necessary here to determine whether the several power from Thomas Emerson, which was given in evidence, would have authorized the deed had it appeared to have been executed under that power. But the power or powers which would authorize the deed must be given in evidence, or the deed could not be that of either grantor, or in any manner affect the title. The most natural inference to be drawn from the mode of execution and reference to the power, is that the attorneys intended to act under and refer to a joint power-from both the grantors, in whose behalf the deed purports to be executed, and not a separate power from each or either of them; for after affixing the several signatures and seals of each of the grantors named, they add “By their attorneys who sign in virtue of a power of attorney.” It is true this may not be a necessary inference, which would admit no proof to the contrary; and if two separ-. ate powers had been proved, one from each of the grantors named, it is possible this mode of execution and reference might be construed as intended to refer to the two. But the only power introduced in evidence to sustain this deed was that from Thomas Emerson and wife, to which Pettis was not a party. It would, we think, be going a great ways to hold that this could be the power referred to by the attorneys in executing the deed, had no intimation appeared of the-existence of another power which might have been intended by the reference. But the case is not even so strong as this for the plaintiff in error. It appears from the testimony of his own witness, one of the attorneys named in this power, that when he had this instrument in his possession, he had also another power of attorney, executed to the same attorneys, by both of the grantors and Richard H. Morris. [52] (the latter of whom was dead and Ms interest vested in the other grantees before this deed was executed). It is true it does not appear what were the contents of this latter or joint power; but from the manner in which it is spoken of by the witness, there would seem to be some probability that it had, or was supposed to have, reference to this land; and this inference is strengthened by the fact that, by a stipulation between the attorneys of the respective parties in the cause, it was admitted “that the signatures to a certain paper purporting- to be a power of attorney from Thomas Emerson, Richard H. Morris and Frederick Pettis” to the same attorneys “are genuine.” From the nature of the case we should naturally infer that this fact in the stipulation was inserted at the instance and for the benefit of the defendant below (plaintiff in érror), as the case of the plaintiff below did not involve the necessity of any power. The inference is very strong, if not conclusive, that this was the same power of attorney spoken of by the witness' Curtis Emerson as. being in his possession at the same time with that from Thomas Emerson. We have already remarked that the form of execution of the deed, and mode of reference to the power, would naturally suggest the idea of a single or joint power of attorney, executed by both grantors, under which the attorneys undertook and intended to act in executmg the deed, though no such instrument had been alluded to or shown to exist. But with the additional, fact that such an instrument, was ¡.in existence, and in possession of the same attorney, at the same time he held possession of the several power from Thomas Emerson, the mference of an intention to act under and refer to the joint, instead of the several power, becomes very strong. This inference it is true might have been weakened, possibly overcome, by the introduction in evidence of the joint power, if it had appeared to have no reference to the land, or to be so [53] entirely different in purpose that the attorneys could not probably have intended to refer to it in the execution of' the deed, though the mere fact of its invalidity as an authority to convey the land, would not, of itself, take away the inference; because it might have been supposed sufficient, whether it were so pr not. But the omission to offer it in evidence when its execution had been admitted, and the deed had been objected to for want of a joint power, is a very significant fact, and warranted the-inference that, if produced, it would have increased the probability that this was the instrument under which the deed was intended to be executed. Should it therefore be admitted that the several power-introduced in evidence would have authorized the execution of this deed had the attorneys purported or intended to. act under it, still that power could not render this deed valid; as they did not purport, and do not appear to have intended, to act under it in' the execution of the-deed; but it is, to say the least, much more probable that they intended to act, and understood themselves to. be acting, under another power not given in evidence, and therefore of no avail in supporting the deed. "We think the deed was properly excluded, and the judgment of the Court below should be affirmed, with -costs. Martin Ch. J. and Manning J. concurred. Campbell J. did not sit in this case.