90 N.W. 262 | N.D. | 1903
Plaintiff seeks in this action to quiet title and determine adverse claims to a tract of land consisting of 160 acres, and situated in Cavalier county, of which she claims to be the owner in fee simple. The defendant, in her answer, denies that plaintiff has any title or interest whatever in the premises in controversy, and, in her own behalf, claims a mortgage lien thereon executed by one Charles McQuarrie. The case was tried to the court without a jury. The trial court found that the defendant’s mortgage is a valid and subsisting lien, and that the plaintiff has no title to' the land in question and entered judgment dismissing the action. Plaintiff has appealed from the judgment, and in a settled statement of case, containing all of the evidence offered in the trial court, demands a retrial of the entire case in this court, pursuant to the provisions of § 5630, Rev. Codes.
There is no conflict in the testimony as to the controlling facts. The case turns upon the legal effect of a certain warranty deed executed and delivered by “Patrick McHugh attorney in fact for Amelia Burritt,” to one Frank Moran. Both parties to this action trace their alleged interest to a common grantor, Amelia Burritt, who acquired her title from the United States government, November 6, 1891, Amelia Burritt executed and delivered to P. McHugh a power of attorney to sell and convey the land in question. December 30, 1893, a warranty deed was executed and delivered by “Patrick McPIugh, attorney in fact for Amelia Burritt,”to Moran. July 10, 1895, Moran deeded to Charles McQuarrie, and on the same day McQuarrie executed a mortgage to the defendant to secure the payment of $700, which sum constituted the consideration for the transfer to him by Moran, and is the mortgage described by the defendant in her answer. On August 7, i8p6, McQuarrie quit-claimed to Edward I. Donovan, who is plaintiff’s husband. In
As before stated the rights of the parties to this action turn upon the construction of the deed to Moran. It is contended by the plaintiff that said deed is the individual deed of Patrick McHugh, and that it therefore did not operate as a conveyance of title, inas much as McHugh had no title to convey. If this contention is sound, it follows that McQuarrie acquired no title from Moran, and the defendant has no lien by virtue of her alleged mortgage. If, on the other hand, the deed to Moran is the deed of Amelia Burritt, and binds her, it is equally evident that her subsequent deed to plaintiff, who had both actual and constructive notice of the several transfers referred to, conveyed no title. It is properly conceded by the plaintiff that McHugh’s power of attorney gave him ample authority to execute a conveyance which would bind his principal. But it is claimed that he did not do so. McHugh’s authority is contained in, and limited by, the following language:
“I, Amelia Burritt, * * * do hereby make, constitute, and appoint P. McHugh * * * my true, sufficient, and lawful attorney, for me and in my name to sell and dispose of [description], * * * and to do and perform all necessary acts in the execution and prosecution of the aforesaid business in as full and ample manner as I might do if I were personally present.”
The deed to Moran is in the following words and figures:
“This indenture, made this 30th day of Dec., in the year of our Lord 1893, between Patrick McHugh, atty. in fact for Amelia Burritt, of Medford, Ontario, party of the first part, and Frank Moran, party of the second part, witnesseth that the said party of the first part, for and in consideration of the sum of two hundred ($200.00) dollars to him in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged, do hereby grant, bargain, sell, and convey unto the said party of the second part, his heirs and assigns, forever, all that parcel or tract of land lying and being in the county of Cavalier and state of North Dakota, described as follows: [Description.] To have and to hold the same, together with all the hereditaments and appurtenances thereto belonging or in any wise appertaining, to the said party of the second part, his heirs and assigns, forever; and the said Patrick McHugh, atty. in fact for Amelia Burritt, party of the first part, for himself, his heirs', executors, and administrators, do covenant with*116 the party of the second part, his heirs and assigns, that he is well seized in fee of the land and premises aforesaid, and has good right to sell and convey the same in the manner and form aforesaid; that they are free from all incumbrance, and the above bargained and granted land and premises in the quiet and peaceable possession of the said party of the second part, his heirs and assigns, against all persons lawfully claiming or to claim the whole or airy part thereof, the said party of the first part will warrant and defend. In witness whereof, the said party of the first part hereunto sets his hand and seal the day and year first above written. [Signed.] Patrick McHugh, Attorney in Fact for Amelia Burritt. Signed, sealed, and delivered in the presence of George Barcelo, H. D. Allert.
“State of North Dakota, County of Cavalier — ss.: On the 31st day of December, A. D. 1893, before me personally appeared Patrick McHugh, attorney in fact for Amelia Burritt, to me well known to be the identical person described in, and who executed, the foregoing instrument, and he acknowledged that he executed the same freely and voluntarily for the uses and purposes therein expressed. In witness whereof, I have hereunto set my hand and official seal at said caunty the day and year above written. W. F. Winter, Notary Public.”
Is the the foregoing instrument the individual deed of Patrick McHugh, or is it the deed of Amelia Burritt ? Plaintiff insists that it is the deed of McHugh, and not the deed of her grantor, Amelia Burritt; and, to sustain this contention, her counsel invoke a well-settled rule applicable to the execution of sealed instruments by agents, which rule, as applied to conveyances of real estate, is that: “If an attorney has authority to convey land, he must do it in the name of the principal. The conveyance must be the act of the principal, and not of the attorney; otherwise the conveyance is void. And it is not enough for the attorney, in the form of the conveyance, to describe that he does it as attorney; for, he being in the place of .the principal, it must be the act and deed of the principal, done and executed by the attorney in his name.” Fowler v. Shearer, 7 Mass. 14; Mechem, Ag. § 419, and cases cited in note; 2 Jones, Real Prop. § 1040, and cases cited; Elwell v. Shaw, 16 Mass. 42, 8 Am. Dec. 126; Echols v. Cheney, 28 Cal. 157; Stinchfield v. Little, 1 Greenl. 231, 10 Am. Dec. 65; Caddell v. Allen (N. C.) 6 S. E. Rep. 399; Norris v. Dains (Ohio) 39 N. E. Rep. 660, 49 Am. St. Rep. 716; North v. Heneberry, 44 Wis. 306; Clarke’s Lessee v. Courtney, 5 Pet. 319, 350, 8 L. Ed. 140. Courts have uniformly held that: “The proper form for executing a deed by attorney is by signing the name of the principal and adding ‘by-, His Attorney,’ but we know of no case holding that this is the only form of execution which will make the deed the act-of the principal. On the contrary, the cases are numerous in which deeds not so executed have been held sufficient. In Wilks v. Back (K. B. 1802) 2 East, 142, 8 Eng. Ruling Cas. 634, the rule was laid down that: “One
Having reached the conclusion that the deed to Moran shows upon its face that it was executed by McHugh for Amelia Burritt, and
Judgment affirmed.