10 Mich. 42 | Mich. | 1862
Was the deed from Thomas Emerson and Frederick Pettis, purporting to be executed by their attorneys R. H. Waller and Curtis Emerson, to said Frederick Pettis, properly excluded by the Court below?
This is the only question necessary to the decision of this cause.
The deed was objected to on four distinct grounds; but from the view we have taken of the case, we do not
Nor is it necessary to pass definitely upon the form of the acknowledgment, though upon principle, and from the authorities cited, we are inclined to think the acknowledgment would have been sufficient had the deed been other- • wise properly executed.
But the fourth ground of objection to the deed is,, that it was manifest from the terms of the deed offered in evidence, that the same was not made under the power of attorney given in evidence, but purported to be made under a joint power given by Thomas Emerson and said Pettis, and no testimony was given to establish such joint power.
We think this ground of objection unanswerable. The deed did not purport to be executed by the grantors in person, the owners of the land; its validity must therefore depend entirely upon the power vested in the attorneys by whom it was executed. But to make a valid deed under a power of attorney,'it was essential that there should have been an intention on the part of the attorney or attorneys to execute the deed under and by virtue of the power, or at least that the contrary intention should not appear.
Now whatever might be the effect of such a deed as this, if executed by the grantors in person, or whatever may have been their object or that of the attorneys in making Pettis, the grantee, also one of the grantors, the fact that they did intend thus to join them, and that they intended to execute the deed in the name and on behalf of both, is, we think, extremely probable, if not clearly manifest from the face of the instrument and the form of the execution. It would seem therefore to follow that the attorneys must have intended to act either under a joint.
The most natural inference to be drawn from the mode of execution and reference to the power, is that the attorneys intended to act under and refer to a joint power-from both the grantors, in whose behalf the deed purports to be executed, and not a separate power from each or either of them; for after affixing the several signatures and seals of each of the grantors named, they add “By their attorneys who sign in virtue of a power of attorney.”
It is true this may not be a necessary inference, which would admit no proof to the contrary; and if two separ-. ate powers had been proved, one from each of the grantors named, it is possible this mode of execution and reference might be construed as intended to refer to the two. But the only power introduced in evidence to sustain this deed was that from Thomas Emerson and wife, to which Pettis was not a party.
It would, we think, be going a great ways to hold that this could be the power referred to by the attorneys in executing the deed, had no intimation appeared of the-existence of another power which might have been intended by the reference.
But the case is not even so strong as this for the plaintiff in error. It appears from the testimony of his own witness, one of the attorneys named in this power, that when he had this instrument in his possession, he had also another power of attorney, executed to the same attorneys, by both of the grantors and Richard H. Morris.
We have already remarked that the form of execution of the deed, and mode of reference to the power, would naturally suggest the idea of a single or joint power of attorney, executed by both grantors, under which the attorneys undertook and intended to act in executmg the deed, though no such instrument had been alluded to or shown to exist. But with the additional, fact that such an instrument, was ¡.in existence, and in possession of the same attorney, at the same time he held possession of the several power from Thomas Emerson, the mference of an intention to act under and refer to the joint, instead of the several power, becomes very strong. This inference it is true might have been weakened, possibly overcome, by the introduction in evidence of the joint power, if it had appeared to have no reference to the land, or to be so
Should it therefore be admitted that the several power-introduced in evidence would have authorized the execution of this deed had the attorneys purported or intended to. act under it, still that power could not render this deed valid; as they did not purport, and do not appear to have intended, to act under it in' the execution of the-deed; but it is, to say the least, much more probable that they intended to act, and understood themselves to. be acting, under another power not given in evidence, and therefore of no avail in supporting the deed.
"We think the deed was properly excluded, and the judgment of the Court below should be affirmed, with -costs.