132 Iowa 431 | Iowa | 1906
Under this showing it is clear that presumptively, at least, she is entitled to one-third of the land because she made no relinquishment of her dower interest therein, which attached inchoately at least on the date of her marriage. Defendants’ reliance is on the title bond, through which they claim to have received their title, and, if this was authorized or ratified by Bichard Britt before his marriage to plaintiff, then she can make no claim to the land. We have set out all the material testimony in the case bearing upon this question, and it is apparent that the title bond was not made in the name of Bichard Britt, and that, so far as shown, James Britt had no authority whatever to make it. He did not assume to be acting for Bichard, but for himself, and he describes some of the land as belonging to himself. The obligee in the bond' did not know there was such a person as Bichard Britt, and never heard of him until about the time he received his deed for the land. The power of attorney makes no reference whatever to the title bond, does not recognize or indorse it, but simply gives the appointee therein power to act in the future, and ratifies all that he (the attorney) might thereafter do under the power so conferred. There is absolutely no evidence that Biehard Britt ever heard of the title bond, or that he ever received any part of the money realized thereon, or subsequently paid on the' note given at the time the bond was executed. By taking the money on that note through his attorney he undoubtedly ratified the transaction, but this was long after his marriage, and cannot be held to relate back so as to prejudice appellant, who was then his wife.
As to ratification by the attorney after he received'the power and before plaintiff’s marriage.
There is no evidence whatever that James Britt did anything after he received this power of attorney, and before plaintiff married Richard. He left the county very shortly after he received the power, and had nothing more to do with the land, so far as shown, until he made the deed in 1872. - Gordon did not take possession until after he (James) had left the county, which possession was taken some seven months before plaintiff’s marriage. Neither plaintiff, Richard Britt, nor his agent, so far as shown, ever personally knew that Gordon had taken possession under the title bond. True, the attorney had $500 of Gordon’s money, which he received in virtue of his own title bond; but it does not appear what became of this. Surely his retention of the money under a sale of his own, made prior to the execution of the power of attorney, should not in itself be held to be a ratification binding .upon plaintiff’s husband. Aside from the retention of the money, there is absolutely nothing but silence on the part of the attorney from which to gather an inference of ratification on his part of the title bond. We are at all times, of course, speaking of a ratification before plaintiff’s marriage. The money paid James Britt under the title bond has not been traced into the hands of Richard at any time, and it surely cannot be held that an agent who wrongfully receives money on his own account may, by simply retaining it after he is appointed agent, ratify the wrongful transaction simply by retaining the money, and thus bind his principal. If support be needed for such view, it is found in Nebraska Co. v. Parker, 52 Neb. 453 (72 N. W. 470); Hakes v. Myrick, supra; Workman v. Wright, 33 Ohio St. 405 (31
The general rule is that mere silence alone cannot amount to a ratification of the act of an intermeddler. 1 Livermore on Agency, 50; Hamlin v. Sears, supra. This is what James Britt was when he executed the title bond in his own name, and the mere fact that he was a brother of Richard does not relieve him of this imputation. Price v. Seydel, 46 Iowa, 696, and cases hitherto cited. But let us suppose that, under the power of attorney, James had power, as he did, to take possession of the land, and that he did not do so because he had theretofore made a title bond to the property in his own name. This is the most that can be claimed for the case. It appears, however, that Gordon did not enter into the actual possession of the land until March of the year 1871. At that time James Britt was not in Rremont county, and did not, so far as shown, known that Gordon had gone into the possession. The land was wild and unbroken prior to 1871, when Gordon went into possession, and when James received the power of attorney there was nothing for him to do in the way of taking possession. In law the possession was still in Richard, and so remained until Gordon too actual possession. Code, section 2912; the provisions of which were in force in the year 1869. So that Richard was in fact and in law in possession, and James had nothing to do but to remain silent. Hence his silence without more, and his failure to take actual possession under the power of attorney, is as applicable to one theory as the other, and, as the burden is upon defendants to show ratification, it cannot be found from this fact. James did not, so far as shown, turn over the money which he received upon his own sale at any time — surely not
Appellant relies upon the propositions that these parties became and were tenants in common upon the death of the husband, and that the statute did not begin to run until actual ouster by defendants; that their possession is presumed to he for the benefit of all, and, unless it became sole or exclusive in the defendants, with the knowledge of plaintiff, there is no ouster. It is further contended on her behalf that in no event would the statute begin to run until her right of dower was denied.- Again, it is argued that the point we are now considering has already been ruled adversely to appellees’ contention in former decisions of this court. The difficulty with these propositions, aside from the last, is that-, while the widow does in law become a tenant in common with strangers upon the death of her husband,
We have found no cases which run counter to the views above expressed, and following the weight of authority, as well as of sound reason, we must hold that plaintiff’s action is barred.
For this reason the decree of the trial court must be, and it i§, affirmed.