Rook v. Jimeson

Rothrock, J. The defendant is the widow of H. H. Jimeson, deceased. At the time of his death he was the owner of a farm of about 150 acres. ' All of the farm excepting about fifty acres was mortgaged to one Weir. The defendant joined with her husband in the execution of the mortgage. After the death of IT. Ii. Jimeson the defendant went to the state of Nebraska. Joseph IT. Ault, her son, was residing in Nebraska, and he returned to Henry county, and, assuming to act for her, he sold her dower interest in the land to the plaintiff, who paid him $160 therefor. After-wards the mortgage held by Weir was foreclosed, and all that part of the land included in the mortgage was exhausted in the payment of the mortgage. This disposition of the land reduced the claim of the defendant to her dower interest in the remaining fifty acres. It is clearly shown by the proof that the plaintiff made the contract for the purchase of the land with Josespli IT. Ault, and that he paid him the purchase money in full. It also appears that the defendant executed a power of attorney to Ault, authorizing him to attend to all her business pertaining to the settlement of the estate. This power of attorney did not contain any express authority to sell and convey real estate. The defendant admits in her answer that she received the $160 paid by the plaintiff, but claims that it was for her interest in the personal estate of her husband, which Ault sold to the plaintiff. The proof shows that Ault did not sell the personal estate, but that he sold the real estate. The question of fact to be determined is, was Ault author [204] ized by the plaintiff to make a contract for tlie sale of the defendant’s interest in the real estate? Neither Joseph II. Anlt nor the defendant was examined as a witness in the case. It appears from the evidence that the defendant intended to execute a power of attorney to her son which would authorize him to sell and convey the land. This power was defective. But the proof is very clear that she intended that he should sell the land. This appears plainly from her declarations to others. She received the consideration paid to her son for the land, and still retains it, without any offer to return it. She' does not defend the action upon the ground that the consideration she has received is grossly inadequate. And, indeed, the proof shows that the sale could not be avoided on this ground. In our opinion the court below should have entered a decree for the plaintiff. And it is proper to observe that the plaintiff does not ground his demand for a specific performance upon the defective power of attorney; and he does not seek to explain it by parol evidence. Ilis action is based upon the parol authority given by the defendant to her son to sell the land. Reversed.