2 Nev. 234 | Nev. | 1866
•Opinion by
This action was brought to foreclose a mortgage executed as follows:
“ Charles S. Coover, C. C. Stevenson, — by Chas. S. Coover, his attorney in fact.”
The pleadings and finding of facts by the Court show that at the time the debt was contracted and the mortgage executed, the defendants Coover and Stevenson were copartners in a certain quartz mill located at Gold Hill, in the County of Storey; that the defendant Stevenson, on the seventh day of March, 1863, executed to Coover a power of attorney, whereby he was fully empowered to execute the mortgage upon which this action is brought; that this power of attorney was duly recorded on the tenth day of Mai’ch; and that on the fourth day of December, a.d. 1863, Stevenson deposited for record in the same office where the power of attorney was recorded an instrument revoking the power of attorney. Immediately after this was done, he left for the Atlantic States, without giving his agent notice of the revocation, or taking any steps to inform the public of it. On the twenty-second day of January, a.d. 1864, about a month and a half after the revocation had been recorded, the defendant Coover executed the mortgage in the manner above mentioned on the quartz mill owned by himself and Stevenson.
It seems to be conceded that neither the agent nor the plaintiffs had actual notice of the revocation until after the execution of the mortgage. Stevenson now defends this action, claiming that at the time of the execution of the mortgage, the power of attorney had been revoked, and that Coover’s execution of it on his behalf was therefore unauthorized.
Judgment was awarded in favor of the plaintiffs in the Court below, and the mortgaged premises were decreed to be sold to satisfy the plaintiffs’ demand.
In support of this decree, counsel for respondents takes the position here: 1st. That as a partner of Stevenson, Coover possessed the authority to execute the mortgage; and 2d. That the power of
We are unable to agree with counsel upon either of these propositions.
If Coover, by virtue of the partnership relations, had the power to convey or mortgage the real estate of the partnership, the manner in which he signed the deed, so long as it was executed for and on behalf of the firm, would be a matter of little or no consequence. If he possessed the authority to sign the firm name of Coover & Stevenson to the deed, and thereby convey the interest of his co-partner, the instrument would doubtless be as effectively executed by the signing of his own name and that of his partner, as he did in this case, as if he had signed the partnership name to it. But it is unnecessary to discuss that question, for the law is clear and emphatic that the agency resulting from partnership relations does not authorize one partner to dispose of the real estate of the firm. The general implied powers of a partner do not extend to binding the firm by instruments under seal. (American Leading Cases, 449; Id. 499.)
Courts of Equity, for some purposes and to some limited extent, hold that the real estate of the partnership is subject to the same rules that govern the stock in trade. It is so held for the purpose of making it subject to discharge the partnership liabilities in preference to the personal liabilities of the individual partners, and also for the purpose of giving the creditors of the firm and the continuing or surviving partner a lien upon it for partnership indebtedness ; but in the note to Coles v. Coles, 1 American Leading Cases, 499, it is said: “ As regards the power of disposition, land held as partnership stock is not subject to the rule which makes each partner the agent of the firm. Neither can sell more than his individual interest unless he have from the other a sufficient special authority for that purpose.” We conclude, therefore, that without special authority from Stevenson, Coover had no power to mortgage his copartner’s interest in the real estate of the firm.
This brings us to the consideration of the question whether the deposit of the instrument of revocation in the office where the
Is such instrument, then, one whereby real estate, or the title to land, may be affected ? The words of the statute are as broad and comprehensive as any general words can possibly be., It will be observed, also, that they include not only those instruments which may immediately affect real estate, but likewise those whereby it may immediately produce' the same result. A power of attorney to convey real estate would undoubtedly be included in the general words of Section 24. It is clearly an instrument “ whereby real estate may be affected.” It was said in Williams v. Berbick et als., (1 Hoffman’s Chancery, 369) that words similar to those employed in Section 24 included a power of attorney to assign a mortgage. We are unable to see how an instrument which merely gives the power to sell or convey land can be considered an instrument whereby real estate may be affected, any more than the instrument of revocation, by which not only the power to sell or convey is extinguished, but even titles to land created under that power, may be utterly defeated. Under the power of attorney, real estate may be conveyed; by the instrument revoking that power, the title so conveyed may be defeated. To destroy or defeat a title to land is surely affecting real estate as much as to convey or create a title.
But there is further reason for the conclusion to which we have arrived: Section 28 clearly contemplates that the instrument containing the revocation shall be recorded. It declares that the power shall not be deemed revoked until such instrument is deposited for record. True, it does not in terms require the instrument to be acknowledged, or proved and certified. But the very absence of those requirements in that section, while it requires the instrument to be recorded, shows that the framers of that Act believed it to be included in the general provisions of Section 24.
Again, if it is not one of those instruments mentioned in the twenty-fourth and twenty-fifth sections, and if the filing of it for record does not impart notice of its contents to third persons, why is it required to be recorded at all ? The Judge below concludes that the deposit for record is an act to be done in addition to those required by the common law. We
The recording of the instrument was evidently intended to operate as a notice to all who might have dealings with an agent. If 'this be not the object, the Jaw requires a superfluous and useless act to be done, for we can see no other object to be accomplished by it. That requirement is not made merely for the purpose of evidence, for if such were the case, the revocation of the power would not be made to depend upon it. It is made the ultimate and indispensable act by which the revocation of the power is perfected. Without it, the agent’s power, to a limited extent at least, continues unrevoked. Indeed, the primary object of all registry law is to avoid fraud by charging all persons purchasing, or otherwise becoming interested in real estate, with notice of the real condition of the title. When, therefore, the statute requires an instrument of this kind to be recorded, it is fair to presume, at least, that it is for the purpose of imparting notice of its contents' to third parties, when no other purpose is mentioned; and if it does operate as such notice, where is the necessity of the actual notice to third parties, required at common law ?
We have endeavored to show that the instrument of revocation,
Again, if in addition to the filing of the instrument of revocation, the principal is required to give actual notice to his agent, he is placed in a position where he may be ruined by an unscrupulous or malicious agent, who, apprehending an intention to revoke, might avoid his principal so as to defeat his purpose; or even if notice be given, he may deny it. Where the law is as doubtful as it is in this ease, we think it the duty of the Court to adopt that construction which will be the least likely to produce mischief, and which will afford the most complete protection to all parties, by taking away the power of committing fraud or doing injury. As all persons deal
The decree of the Court below, so far as it orders a sale of Stevenson’s interest in’the premises', must be reversed, and it is so ordered.