10 Cal. 354 | Cal. | 1858
Terry, C. J., concurring.
The power of attorney from the plaintiff to Price, authorized a sale of the premises. It did not authorize a gift of the property, or its transfer for any purpose, except in completion of a sale. The deed to Van Nostrand was not executed upon any sale. Ho consideration was paid, or stipulated to be paid. Both Price and Van Nostrand agree, in this respect, in their testimony. Price states that he transferred the property in order that Van Nostrand might control it and keep off trespassers, giving to him the privilege of retaining it for eight thousand dollars. He did not elect to retain it, nor did he offer to pay any portion of this sum. Van Nostrand states that the conveyance was made to him, in trust, for the wife, or some member of Price’s family. It is immaterial for what purpose the deed was given, as it was not executed upon a sale. The power was special, and the deed not being in pursuance of the power, could not pass any title from the plaintiff to Van Nostrand. Nor was there any ratification of this conveyance by the plaintiff. He was not aware of its existence. No information was communicated to him on the subject. It is true §4000 was sent to him on account of his property generally, but not on account of the proceeds of any sale. ,: No presumption of ratification can be indulged, as knowledge of the alleged sale, with its attendant circumstances, was not brought home to him. (Billings v. Morrow, 7 Cal., 171.)
As between the plaintiff and Van Nostrand, the conveyance had no more effect than if it had recited on its face that Price was only authorized to sell the property; but, for reasons best known to himself, made the conveyance without a sale. No parade of
The question of protection to a bona fide purchaser, without notice, relying upon the form of the deed, can not arise unless some conveyance was subsequently executed by Van Nostrand; and this involves an inquiry into the effect of the assignment endorsed on the back of the deed. It is as follows:
“ Know all men by these presents, that I, the within-named Avert M. Van Nostrand, of the city of San Francisco, State of California, in consideration of §8000 paid to me by Rodman M. Price, of the city of New York, have assigned to the said Rodman M. Price, and his assigns, all my interest in the within instrument, and every clause, article, or thing, therein contained, and I do hereby constitute the said Rodman M. Price my attorney, in my name, but to his use, to take all legal measures which may be proper for the complete recovery and enjoyment of the assigned premises, with the power of substitution.
“ Witness my hand and seal, this 30th day of August, 1858.
“A. M. Van Nostrand.”
This instrument was executed during the absence of Price from the State, and without his knowledge, and without any consideration therefor, and was never delivered. It is not under seal, and contains no words conveying any estate in the land. (Lessee of Bentley’s Heirs v. De Forest, 2 Ham., 222; Porter v. Bead, 19 Maine, 365; Wood v. Partridge, 11 Mass., 490; Clark v. O’Margay, 2 Brevard, 134; Towner v. Moore, 1 Brevard, 236; 4 Kent, 452.) It would seem a waste of time to cite authorities on the position that this instrument did not pass the legal title. And if we admit that the instrument was delivered, and the consideration paid, it could only create in Price an apparent equity, and the rule is well established that the purchaser of a real equity, even, is bound by a prior equity. The purchaser of an equitable title takes the property subject to all existing equities. He is not within the rule which protects a bona fide purchaser for Value, and without notice, of the real or apparent legal title. He must take the imperfect title, with all its imperfections. (Chew v. Burnett et al., 11 Seargt. & Rawle, 393; Vattier v. Hinde, 7 Peters, 252.)
How, then, stands this case ? Price, by the assignment, acquired an equity against Van Nostrand. The vendees of Price took only this equity, if anything. Upon inquiry, they would have found that the equity was only apparent; that the title was, in appearance, in Van Nostrand, but really in the plaintiff; that the conveyance to Tan Bostrand, in fact,'passed nothing, because not executed upon any sale in pursuance of the power
It is unnecessary to pursue the consideration of the points of the appellant any further. The views we have taken go to the marrow of the case, and conclude the defence.
Judgment reversed, and cause remanded.
[Baldwin, J., having been counsel in the Court below, did not sit in the case.]