41 Ark. 393 | Ark. | 1883
Butts brought ejectment against Hackney, deriving his title from a patent issued by the United States to one Hickey on the first of November, 1875, and a deed from Hickey and wife to the plaintiff, bearing date November 13, 1877. The defendant put in an answer, settingup title in his wife, who was thereupon made a party defendant. Her chain of title consisted of:
1. A letter of attorney from Hickey, the patentee, to Ed. Green, dated January 6, 1876, expressed to be for valuable consideration and irrevocablé, authorizing his said attorney in fact to sell and convey all lands then owned or thereafter to be acquired by him, and particularly his title to eighty acres of land under the act of congress of June-8, 1872, and the amendatory act of March 3, 1873, entitling him as a discharged soldier in the army of the United States to eighty acres of land in addition to his homestead,, which he had entered and perfected previous to that time,,
2. A deed of conveyance made by Green to one Kline, dated December 7, 1875 ; and
3. A deed from Kline and wife to Mrs. Hackney, of date-September 6, 1875.
The deed from Green to Kline does not purport to have been executed in the name of Hickey, nor by Green as attorney of Hickey; and indeed it could not, since its execution preceded the making of the power of attorney.
But the defendants alleged, in support of their title, that Mrs. Hackney was in possession of the premises at the time-the plaintiff received his deed, and that he had both actual and constructive notice of her possession and title, and knew that the deed by Green to Kline was intended to be made by virtue of said power, and upon a valuable consideration , but the same failed to show on its face that it was-executed by the attorney in fact for Hickey, and also omitted to state the consideration paid by Kline. And it was-prayed that the contract under which Mrs. Hackney purchased might be specifically performed and that the possession of the defendants might be quieted. To this answer the plaintiff demurred, because if invoked the equitable jurisdiction of the court to compel the specific performance of a contract when the pai’ties to the contract were not before the court, and because the court was asked to execute a power which the donee of the power had never attempted to execute.
Green and Hickey were then, by order of court, on defendants’ motion, made co-plaintiffs, and the cause was transferred to equity. By consent the ■plaintiffs entered in ¡short upon the record a general denial of the allegations ■contained in the answer and counter-claim.
Upon these pleadings and exhibits and depositions taken ■on both sides, the cause was heard. And the court decreed the property to Butts.
The plaintiff, being armed with the legal title, must prewail unless the defendants can show a prior right and a superior equity. Woodruff v. Core, 23 Ark., 341; Paty v. Harrell, 24 Id., 40; McIver v. Williams, Ib., 33; Schaer v. Gliston, Ib., 137.
We are satisfied that Hickey signed the power of attorney, but are not so sure that he knew what he was doing. 'Green and he were total strangers to each other, although both resided in the same county. Green, testifying long afterwards, says he never saw Hickey in his life, and he did ■not understand that he had been named as attorney in fact, but thought the instrument was a deed of conveyance. Hickey says he had no business transactions with Greene, and denies that he ever sold -his additional homestead right to anyone except Butts. In this connection may be noticed1 the following paper, which was produced in evidence :
“Received of Kline and Greene my patent for the southwest quarter of the northeast quarter and the southwest of the northwest, section fourteen, township ten, north of range twenty-one west, and the north half of southwest quarter of section nine, in township nine, north of range twenty-four west, which I have sold to Ed. Greene.
L, H. Hickey.”
The tract last above.described is the land in controversy»
Now Hickey, as we infer, was an illiterate man. He says he can read writing tolerably 'well. Kline does not know whether Hickey can read writing or not, but knows he can write. Kline was a claim agent employed by Hickey to procure-his bounty, back pay and additional homestead, and Greene-was a partner of Kline. The power of attorney and the foregoing receipt were signed on the same day. Several other papers, relating to business which Kline had in hand, were signed by Hickey on that day. Hickey says the signature to the power of attorney and the receipt resemble his handwriting and he cannot swear positively that he never signed them ; that Kline read aloud to him some of the papers that were to be signed, and may have read all of them; that at the time he signed the receipt for his patent, he was not aware it contained anything about a sale of land' to ’ Greene ; that he has no recollection of reading the receipt, but never would have signed it had he known the-contents.
This power of attorney to Kline’s partner purports to-have been acknowledged before Kline, who was a notary public. In fact, it was as much for Kline’s benefit as it. was for Greene’s. It was Kline who advanced the twenty dollars, if any money was paid. He did not inform his client that he had, four months before, sold and conveyed this land to Mrs. Hackney for $115, and had received the consideration money.
The whole transaction wears too questionable a shape and is surrounded with too many suspicious circumstances for us to overturn a direct legal title in order to give effect to the defendant’s equities. Greene was not Hickey’s attorney in fact when he conveyed to Kline, nor when Kline conveyed to Mrs. Hackney, nor is there any clause in the letter of attorney, which, by intendment, can be construed to ratify a previous sale of the land.
In Lessee of Clark v. Courtney, 5 Pet., 349, Judge Story, commenting on the attempted execution of a power of attorney in the attorney’s own name, says: “The act does not therefore purport to be the act of the principals, but of the attorney. It is his deed and his seal, and not theirs,. This may savor of refinement, since it is apparent that the party intended to pass the interest and title of his principals. But the law looks not to the intent alone, but to the fact whether that intent has been executed in such a manner as to possess a legal validitj^. ”
This rule was followed and applied in this coúrt in State v. Jennings, 10 Ark., 428.
Let the decree be affirmed.
