Butterfield v. Beall

3 Ind. 203 | Ind. | 1851

Perkins, J.

John Beall filed a bill in chancery in the Ripley Circuit Court, from which it appears, that Charles B, Johnson was, in his lifetime, the owner of the lands hereinafter described; that, at his death, said lands were inherited by Caroline Johnson and Adaline Johnson, his heirs; that said Carolina intermarried with Abel Butter-field, and said Adaline with Richard Bush, ancl. that after-wards the four executed the following power of attorney:

“ Know all men that we, A bel Butterfield and Caroline Butterfield, his wife, (late Caroline Johnson,) and Richard Bush and Adaline Bush, his wife, (late Adaline Johnson,) of the city of Nauvoo, Hancock county, Illinois, have made,” &c., “ and by these presents do make,” &c., “ Jonathan C. Wright, of said Nauvoo, our true and lawful attorney, for us, and in our names, to take possession of the following pieces and parcels of land, viz., the south-east quarter,” &c., “being in the county of Ripley and state of Indiana,” &c.; “ and the said Jonathan C. Wright, by virtue of these presents, as our attorney, is fully authorized and empowered to bargain, sell, and convey the said lands, or any part of them, with their hereditaments and appurtenances, to any person or persons, upon such terms as to him shall seem just and equitable, and to execute and deliver good and sufficient deeds and conveyances for the same and every part thereof, according to law, warranting the same,” &c., “and to affix our several names to such deeds and conveyances, we hereby approving and ratifying,” &c. “ In witness,” &c.

This power of attorney is signed and sealed by the parties, and has appended the following acknowledgment:

“ State of Illinois, Hancock county, city of Nauvoo, ss. I, William W. Phelps, notary public in and for the city of Nauvoo, county and state aforesaid, duly commissioned by the governor of said state, do certify that Abel Butter-field, Caroline Butterfield, his wife, Richard Bush and Ada-line Bush, his wife, whose signatures appear to the foregoing power of attorney, and who are personally known to me to be the persons described in, and who executed the same, did severally acknowledge that they had executed said power of attorney for the uses and purposes therein mentioned. And the said Caroline Butterfield and Adaline Bush having been by me made acquainted with the contents of said power of attorney, and examined separate and apart from their said husbands, acknowledged that they had executed the same,” &c. “ In testimony,” &cc. Signed and sealed by the notary.

There is also a note succeeding the acknowledgment, that the instrument had been recorded.

Having this power of attorney, it appears that Wright came to Indiana and sold to John Beall a part of the lands described in it, and executed to him a deed, of which the subjoined is a copy:

“ This indenture, made this twenty-fifth day of March, A. D., 1846, between Jonathan C. Wright, of the county of Hancock, state of Illinois, attorney in fact for Abel Butterfield, Caroline Butterfield, his wife, and Richard Bush and Adeline Bush, his wife, parties of the first part, and John Beall, of the county of Ripley and state of Indiana, of the second part, witnesseth, that the said Jonathan C. Wright, party of the first part, for and in consideration of the sum of four hundred and seventy-five dollars to the said party of the first part by the said party of the second part in hand paid, the receipt whereof is hereby acknowledged, hath granted, bargained, and sold, and by these presents doth grant, bargain, and sell unto the said party of the second part, all the following described piece or parcel of land, to-wit, the south-east quarter of section fifteen,in township seven north, of range twelve east, of lands subject to sale at Jeffersonville, Indiana, being in the county of Ripley and state of Indiana, containing one hundred and sixty acres, be the same more or less, together with all the appurtenances thereunto belonging, to have and to hold the above described premises with the appurtenances to the same belonging, to the said party of the second part, his heirs and assigns forever. And the said party of the first part, his heirs, executors, and administrators, the aforesaid tract of land, with the appurtenances, to the said John Beall, his heirs and assigns, will forever warrant and defend. In witness whereof, the said Jonathan C. Wright, attorney, hath hereunto set their hands and seals, the day and year first above written. Abel Butterfield, [seal]. Caroline Butterfield, [seal]. Richard Bush, [seal], Adaline Bush, [seal]. By Jonathan C. Wright, [seal], their attorney in fact.

“ Signed, sealed, and delivered in presence of Abel Ca-vender, John M. Cavender.

“State of Indiana, Ripley county, ss. Personally appeared before the undersigned, one of the justices of the peace of said county, Jonathan C. Wright, attorney aforesaid, and acknowledged the foregoing instrument of writing to be his voluntary act and deed for the purposes therein mentioned. Given under my hand and seal, this 25th day of March, 1846. John Cavender, [seal], justice of the peace.”

It further appears that afterwards, Stephen S. Harding, an attorney at law, supposing the conveyance from Wright to Beall inoperative, instituted an action of ejectment upon the demise of Butterfield and Bush, and their wives, to recover possession of the land attempted to be conveyed; and the Circuit Court of Ripley county being of opinion that said conveyance was void, he succeeded in the action and ousted Beall of possession. It also appears that afterwards, in 1850, said Harding caused to be instituted in the Ripley Circuit Court, against said Beall, an action for the mesne profits of said land during said Bead’s possession, and that said action was pending at the filing of this bill. It is alleged by Beall that Butter-field and wife, and Bush and wife, are residing in the territory of Utah, and are insolvent; and that Wright is in parts unknown. He prays an injunction restraining the prosecution of the suit for mesne profits, and also prays for the perfection of the conveyance to him of the land, &c.

Upon the filing of the bill, verified by oath, an injunction was moved for as prayed, and the Court granted it. Thereupon, the defendants below appealed to this Court.

We have concluded that the injunction in this case cannot be sustained.

Upon the marriage of Caroline Johnson with Abel Butterfield, said Butterfield became possessed of an estate for their joint lives in her real property. So in the case of Adaline Johnson and Richard Bush. That estate the husbands could respectively convey; 2 Kent, 133; and an attempt by them to convey the fee-simple would not render void their conveyance as to the interest they did possess. R. S. p. 417, s. 23.—Id. p. 425,s. 64.—4 Kent, 83. If, then, Butterfield and Bush made a conveyance of the land in question, binding upon them, to Beall, in March, 1846, as they and their wives, according to the bill, are still living, the right of possession of said land is in Beall, the mesne profits of it belong to him, and he had a defense at law to the ejectment suit. We think they did make such a conveyance. It will be admitted that the deed made (which we have set out above) is inoperative as to the wives of said Butterfield and Bush, and will not bar an entry by them on the decease of their said husbands. The land being situate in this state, it was necessary that the instrument purporting to convey it should be executed according to our law — the lex loci rei sitae. 1 Blackf. 372. And as, in the present case, the_ conveyance was made by the owners through an attorney, it was necessary that the instrument transferring to said attorney the power to convey, should be executed with the same formalities as are required in the execution of a deed of conveyance. R. S. p. 421, s. 43. That instrument was not so executed. In the acknowledgment it was not certified that the wives were examined “ without the hearing” of their husbands. This should have been done. R. S. p. 421, ss. 40, 41, and 42 ⁽¹⁾. But the acknowledgment is well certified as to the husbands. The power to Wright was valid as against them; and his deed to Beall under it, though very inartificially drawn, we have determined, not however without a good deal of hesitation, should be held operative to the extent of the power that had been legally conveyed to Mm. See Story on Agency, s. 147, et seq. The deed was signed and sealed by him with the names and seals of his principals, and they are once designated in it as the parties of the first part, and we think should be bound by it. It was Wright’s intention to act under the power granted him; and justice will be promoted and litigation, perhaps, saved, by holding the deed operative. Under this view of the case, Beall’s remedy is at law, as to the possession of the land; and there has been no adjudication below upon the question of his right to a decree perfecting the deed as against the female defendants in the bill. See Story supra; and Edmonson v. Orr, 12 Smeade and Marshall, 541.

J. Ryman, for the appellant. E. Dumont, for the appellees. Per Curiam.

The decree is reversed with costs. Cause remanded, &c.

(1) See Pardun v. Dobesberger, May term, 1852, post.