Doe ex dem. Tenant v. Roe

27 Ga. 418 | Ga. | 1859

By the Court.

Benning J.

delivering the opinion.

[1.] The first objection to the power of attorney, was not insisted on. And we think that there was nothing in the objection. The drawer has, before grant, a vendible interest; as this Court has repeatedly held. Dugas vs. Lawrence, 19 Ga. 557.

The second objection to the power of attorney, was, that its execution was not proved.

The power was recorded, and on the same day as the deed; and it was attested by two persons, one of whom, signed as a justice.of the peace. The deed was regularly recorded. Was all this enough to prove the power of attorney?

If there is any. statute which says any thing about the recording of powers of attorney, we cannot find it. And yet we believe, that it has ever been the practice to record powers of attorney, along with the deeds made under them, and to do so, on the same sort of proof as that on which the deeds are recorded ; and, that it has ever been the farther practice, to let such powers of attorney, when thus recorded, go in evdence, without further proof, along with their deeds. Aud this practice, we suppose, to be founded upon the opinion, that the power of attorney, is really a part of the deed made under it, and, that the law authorizing the registration of deeds, authorizes the registration of every thing that makes a part of the deeds — and, consequently, that it authorizes the registration of the powers of attorney under which the deeds maybe made. We are not prepared to say, that such an opinion as this, is incorrect, and therefore, we are not prepared to disturb this practice, which is of so long standing.

[2.] So, rve cannot sustain the second objection to the poAver of attorney. Therefore, Ave hold that the Court Avas right in letting the power go tho jury.

[3.] Tiie objection to the admission of the deed, was, that the name of the attorney, instead of the name of the principal, was signed to it. There was, however, enough on the face of the deed, to show, that the attorney in thus signing his own name, was acting as attorney, and not, as principal. That being so, the deed was unquestionably a good execution of the power in equity. And if it was a good execution of the power in equity, then it was, I think, a good execution of the power at law, under the Act of 1830. Cobb, 464. That Act relievos all parties from the necessity of going into equity, in any of tho cases which it enumerates, (and they are all the cases over which, equity has had given to it, jurisdiction,) “ whenever” they “ shall conceive,” that they can establish “their claim without resorting to tho conscience of the defendant.”

There is enough on the very face of this deed, to show, that the intention in its execution was, that it should be the deed of Peavy, the principal, and not, of Carter, the agent.

I think, then,that the objection to the deed was not good.

Consequently, my conclusion is, that tho Court below was right, in all the decisions excepted to.

Judgment affirmed.