52 Cal. 579 | Cal. | 1878
Action for the recovery of the possession of block 90, in the Town of Colusa. Both parties claim title under a patent issued
The first conveyance by either of the confirmees was made on the 23rd day of September, 1851, and purports to have been made by Larkin, for himself, and by Missroom, by Larkin as his attorney in fact, to Seawall and Hastings; and the deed purports to convey an “ undivided two-thirds part of the following described tract or parcel of land, to wit: Two Spanish leagues, (or dos sitios de ganado mayor) or land on the west bank of the Sacramento Liver, part of the land formerly known as the Coins Trust, including the Town of Colusa, being a part of the eleven Spanish leagues granted by Don Manuel Micheltorena ” to Jimeno, and sold by him to said Larkin and Missroom. The two leagues are further described by reference to a grant to Bidwell, a sale by him to Semple, and a Sheriff’s sale under execution against Semple.
It is unnecessary, for the purposes of this appeal, to determine whether the description is sufficient to amount to a conveyance of the whole of the “ two Spanish leagues of land ”; but the inquiry may be limited to the question whether an undivided interest in the premises in controversy was conveyed. The two leagues mentioned in the deed are described as “ including the Town of Colusa.” The evidence shows that the town is within the bounds of the Jimeno Grant; that dt the time of the execution of the deed a map of the town had been made ; that the northern and southern limits of the town had been fixed and established on the ground; that stakes had been set at the corners of several of the blocks; that a number' of houses had been built; and that as applications wére made for the purchase of lots, surveys were made in accordance with the map. From the fact that the Court found that the defendant had title to an undivided sixth of the block of land in controversy, and that he deraigns title under that deed, it is to be inferred that the Court found that the Town of Colusa had been laid out before the execution of the deed, and that the block in controversy is a portion
The deed was executed by Larkin, and purports to have been executed by Missroom, by Larkin, his attorney in fact, but it does not appear that Missroom had constituted Larkin his attorney in fact. The deed, therefore, is to be regarded only as the deed of Larkin. At the time of its execution he held the title to the undivided half of the land conveyed, and it must be construed as conveying his undivided half, although it purports to have been executed by Missroom, who was an owner of the title in common with Larkin.
The record does not contain any conveyance from Seawell and Hastings—the grantees in that deed—to the plaintiff or his grantors, and the decision that the plaintiff was the owner of the undivided five-sixths of the land was not sustained by the evidence, for he could not have acquired the title to more than three-sixths unless he acquired it under the deed to Seawell and Hastings.
The defendant claims that the evidence shows that no interest in the Town of Colusa passed to the plaintiff under the deeds through which he deraigns title. By one of these deeds, William J. Eames conveyed to S. A. and James Morrison an undit vided quarter of “ nine Spanish leagues of land * * commencing two Spanish leagues below or southerly from the tract of land on said river known as the rancho of Larkin’s children, and running thence along with said river southerly nine Spanish leagues, and one league back or westwardly from said river,” being part of the Jimeno grant, “ which said tract was conveyed • to said William J. Eames by Henry Coggill and wife,” by deed dated May 31st, 1852; “ and being the same tract of land conveyed to the said Samuel A. Morrison and James Morrison by the said William J. Eames (as the attorney in fact of the said John S. Missroom) by deed bearing date the 20th day of April, A. D. 1852.” The deed last referred to describes the land conveyed as “ lying and being southerly and below the Town of Colusa.”
Eames held that interest.
It is further contended by the defendants that the land in controversy is excepted from the deed of Missroom to Coggill; and if not in fact excepted, that Eames, and the plaintiff claiming under him, are estopped to assert title to the premises. The deed contains the following exceptions: “ Also excepting therefrom such parts thereof as may be sold by agent of said parties of the first part [Missroom and wife] before receiving due notice., of this conveyance.” The defendant introduced in evidence a power of attorney, dated September 24th, 1851, executed by Larkin and Missroom to Eames ; also by Seawell and Hastings to Carpenter, authorizing him to convey lots in Colusa ; and he also introduced a deed dated December 12th, 1861, purporting to have been executed to Monroe by Larkin, Miss-room, Seawell, Hastings, and Hughes, by Carpenter, their attorney in fact, conveying the premises in controversy. It is claimed that the power of attorney and the deed (both of them having been made before the deed of Missroom to Coggill) prove that the premises therein described are within the exception contained in the deed of Missroom to Cosrgill. But we are of the opinion that this position cannot be sustained, for they do not prove, as against Missroom, that Eames was his agent.
For the purpose of this appeal, it will be assumed that as against Eames the power of attorney to Carpenter created an equitable estoppel which precluded him from denying, as against a bona fide purchaser deraigning title under the power, that he
Sec. 24 provides that “every conveyance whereby any real estate is conveyed, or may be affected, proved, or acknowledged, and certified in the manner prescribed in this act, to operate as notice to third persons, shall be recorded,” etc. Sec. 25 provides that “ every such conveyance, certified and recorded in the manner prescribed in this act, shall, from the time of filing the same with the Recorder for record, impart notice to all persons of the contents thereof,” etc. Sec. 27 provides that “ every power of attorney, or other instrument in writing, containing the power to convey any real estate as agent or attorney for the owner thereof, or to execute as agent or attorney for another, any conveyance whereby any real estate is conveyed or may be affected, shall be acknowledged or proved, and certified and recorded as other conveyances whereby real estate is conveyed or effected, are to be acknowledged or approved, and certified and recorded.” Sec. 36 provides that “ the term ‘ conveyance,’ as used in this act, shall be construed to embrace every instrument in writing by which any real estate or interest in real estate is created, aliened, mortgaged, or assigned, except wills, leases for a term not exceeding one year, executory contracts for the sale or purchase of lands, and powers of attorney.”
In considering the point under review, we shall waive the question whether, under these provisions, the record of a power of attorney to convey real estate imparts notice of its contents to subsequent purchasers in the same manner as though it was
The design and purpose of the Registry Act being to impart notice by the record to subsequent purchasers that the owner of the estate had conveyed or incumbered it: an instrument made by a stranger to the title, without authority, and which can in no wise affect the estate of the owner, does not come within the purview of the statute.
In the case at bar, Eames had no authority to appoint an attorney to convey the title of Missroom; and the instrument by which he attempted to do this was a nullity, which in no wise affected the title or estate of Missroom. It could, of course, impart no notice of anything done by Missroom when he had done nothing in the premises. If the record of it could be deemed constructive notice of anything, it could only be of the fact that Eames had executed the instrument. But it was not a conveyance by Missroom, the owner of the land, nor a power of attorney from him to Carpenter, either directly or indirectly ; but simply the unauthorized act of Eames, assuming to act for Missroom. The provisions of the Registry Act, already quoted, do not make the record of such an instrument notice of its contents to any one or for any purpose. We are therefore of opinion that the record of it did not impart notice of its contents to the subsequent purchasers from Eames, who in the meantime had acquired the title of Missroom.
Judgment and order reversed, and cause remanded for a new trial.