Marshall v. Shibley

The opinion of the court was delivered by Brewer, J.: This was an action of ejectment in the district court of Marshall county. The facts are these: Plaintiff was the patentee of the land. In 1862 he executed a power of attorney to a former partner, H. D. Williams, to sell and convey all his real estate in the state of Kansas, and “to convey or assign away any and all of his property either real or personal in said.state, either in payment or to secure the payment of debts due or to become due.” Under this power of attorney Williams in the same year made a deed of assignment to J. D. Brumbaugh for the. benefit of creditors. In 1869 Brumbaugh, by virtue of the trust imposed by this deed of assignment, conveyed the lands in question to defendant. ■ The power of attorney described no specific property but contained only the general words heretofore quoted. The deed of assignment in a schedule of property attached contained the property in question. The first and main question in the case is, whether the power- of attorney authorized Williams to execute this- deed of assignment, and thus transfer the title to this property to Brumbaugh. The fact that this property is not specifically described in the power of attorney can make no difference. Authority to sell any or all of plaintiff’s land in the state, includes authority to sell any specific tract therein. So also is the assignment authorized by the power of attorney. The assignment conveys the prop [117] erty to the assignee in trust to sell and apply the proceeds to the payment of debts. Now, the power of attorney expressly authorizes the attorney “to assign away” the property “either in payment or to secure the payment of debts.” He did assign to secure the payment of debts; and we think the act was within his power. Many other questions are presented and discussed in the briefs of counsel for plaintiff in error, but unfortunately the record is not in such a condition that we can consider most of them. It is insisted that the court erred in refusing a number of instructions asked by plaintiff. The record does not purport to contain all the instructions, and these may have been refused because already once given. Pacific Rld. Co. v. Nash, 7 Kas., 280; Washington Life Ins. Co. v. Haney, 10 Kas., 525. It is insisted that the assignment was void because no bond is shown to have been given by the assignee. The statute only made an assignment void in such cases as against creditors. The assignor could not avoid his voluntary deed upon that ground. (Comp. Laws, p. 102, ,§1.) But the assignee testified that he éxecuted a bond which was approved by the probate judge, and as he thought given to the deputy register. It is objected that a copy of the deed of assignment on the record of the register of deeds was admitted without proof of the loss or destruction.of the original. But the defendant testified that the original was not in his possession, nor under his control; hence the record copy was admissible. Code, § 372. A good deal of testimony was admitted over the objection of the plaintiff; yet in no case was the ground of objection stated. Such an objection is too general to be available. Walker v. Armstrong, 2 Kas., 198. This we think covers all the questions made in the case, and no error appearing the judgment must be affirmed, All the Justices concurring.