97 Wash. 546 | Wash. | 1917
•— This is a controversy between creditors of Benjamin F. Springer, claiming liens upon his one-eleventh distributive share of the real property inherited by him from his brother, Amaziah Springer, deceased. The First National Bank of Crestline, Ohio, and the Kriell-French Piano Company claim first liens upon the property under a power of attorney executed by Benjamin F. Springer to William Monteith, which they claim became in effect an equitable assign
Amaziah Springer died intestate in the year 1908, leaving eleven brothers and sisters as his only heirs at law, one of whom is Benj amin F. Springer. Sarah Springer became the
“Power of Attorney
“Know all men by these presents, That I, Benjamin F. Springer of Crestline, Ohio, do hereby constitute and appoint William Monteith of the same place, my attorney in fact, for me and in my name to receive from and receipt to Sarah Springer, administratrix of the estate of Amaziah Springer, deceased, for any and all money and property coming to me as an heir .of said decedent or otherwise, less the sum of $721 assigned to the Kriell-French Piano Co.
“My said interest in said estate to be received by my said attorney and held by him in trust, as collateral to secure the payment of any promissory notes or renewals that I may at any time owe to the First National Bank of Crest-line, Ohio, and to the extent of my liabilities to said bank, this power of attorney is not revocable, hereby ratifying and confirming all things my said attorney shall do relating to the powers hereby granted and given him, or incident thereto.
“In testimony whereof, I have hereunto set my hand and seal this 18th day of July, 1910.
“Benjamin F. Springer (Seal)
“Signed and acknowledged in our presence.
“P. W. Poole
“F. P. Hayes
“The State of Ohio,
“Crawford County.
“Before me, á notary public in and for said county, personally appeared the above named Benjamin F. Springer and acknowledged the signing of the above power of attorney to be his free and voluntary act.
“In testimony whereof I have hereunto affixed my name and official seal this 18th day of July, 1910.
“P. W. Poolej Notary Public.
“(Notarial Seal) My commission expires July 10, 1913.”
The real problem here for our consideration is, Does this power of attorney constitute an equitable mortgage upon the interest of Benjamin F. Springer in the real property in question? Counsel for appellants invoke the law of equitable assignments, and especially the liberal rule of construction which equity follows in determining the intention of the parties from language, oral or written, which may be claimed to constitute an equitable assignment. The authorities relied upon by counsel, however, have to do almost wholly with equitable assignments of personal property, or to funds which have a prospective existence. The property here involved is real property only, and we are reminded that:
“All conveyances of real estate or of any interest therein, and all contracts creating or evidencing any encumbrance upon real estate shall be by deed,”
and that all such deeds shall be in writing, signed by the party to be bound thereby and acknowledged. Rem. Code, §§ 8745, 8746, 8750.
We are, therefore, confronted with this statute of frauds, and before it can be held that this power of attorney is an
“A power of attorney, being a formal instrument, must be strictly construed according to the natural import of its language, and the authority conferred is not to be extended beyond that which is given in express terms, or which is necessary and proper to carry into effect that which is expressly given.”
The rule thus stated is amply supported by authority, and is peculiarly applicable to powers of attorney relied upon as relating to real property. We think it is plain that, whatever may be said touching the effect of this power of attorney as a possible equitable assignment of personal property which might be delivered by the administratrix to William Monteith upon the close of the administration, it can in no event be held to constitute an equitable mortgage of the real property of Benj amin F. Springer. It may be that, at the time of the execution of the power of attorney, there existed in the mind of Benjamin F. Springer an intent that the real property inherited from his brother should be subjected as mortgaged property to the satisfaction of his debts owing to appellants, and that the recitals therein might lend some aid, with other circumstances not appearing from its language, to prove such intent, but it seems plain to us that such intent cannot be gathered from the language of the power of attorney alone. It must be remembered that we are dealing with the question of Benjamin F. Springer’s intent in the light of the statute of frauds, and that it is, therefore, not enough that Benj amin F. Springer’s intent to incumber his real property as by mortgage could be found by facts deducible from other evidence, but such intent, to be rendered effective, must be found in this writing. We are of the opinion that no such intent is evidenced therein, and conclude that the lien of respondent’s attachment and judgment upon the real property of Benjamin F. Springer is superior to the claim of the First National Bank of Crestline, Ohio. Our decision in Hossack v. Graham,
The claim of the Kriell-French Piano Company, we think, rests upon even a weaker foundation than that of the First National Bank of Crestline. There is not in the record before us any evidence of any assignment by Benjamin F. Springer of his interest in the property inherited from his brother, other than the reference to some such supposed assignment of money in the power of attorney above quoted. Plainly, under the authorities, this does not constitute a conveyance or incumbrance of real property, and even if it referred to real property instead of money, it would not estop Benjamin F. Springer from denying the existence of any such conveyance or incumbrance, since it is immaterial to the essential purpose of the power of attorney. 16 Cyc. 701.
The judgment rendered by the trial court determining the respective priorities of the liens of appellants and respondent seems to give respondent a lien upon all of the property, both real and personal, of Benjamin F. Springer inherited from his'brother, a very small part of which appears to be personal property. So construing the decree, it would be manifestly erroneous in so far as it awarded respondent a lien upon the personal property, since its attachment and judgment lien is upon the real property alone. Reading the record as a whole, we are led to believe that this -is a mere inadvertence in the form of the judgment. Counsel for the respective parties, while mentioning the fact that there is a small amount of personal property, seem to have overlooked that fact in the preparation of the decree, as the court also must have done in its signing of the decree.
We conclude that the judgment of the superior court, determining in effect that respondent has a superior lien upon the real property inherited by Benjamin F. Springer from his deceased brother, should be affirmed, and that the decree should be deemed amended so as to limit the lien to such real
While we hold that the power of attorney executed by Benjamin F. Springer did not create an incumbrance upon the real property as against the attachment and judgment lien of Stultz Brothers, upon the theory that it was wholly ineffectual as an incumbrance, we do not mean to hold in this case that the decree of distribution awarding the First National Bank of Crestline and the Kriell-French Piano Company a lien upon both the real and personal property is not binding upon Benjamin F. Springer. If the trial court was in error to this extent in rendering its decree of distribution, as our views above expressed may seem to argue, it is not an error with which we are here concerned.
Ellis, C. J., Mount, Fullerton, and Holcomb, JJ., concur.