| Colo. | Feb 15, 1873
The plaintiffs in error have assigned for error
In view of the conclusion to which we have arrived upon another point in the case, it will be unnecessary to consider whether the conveyances sought to be impeached by the bill can be referred to the letter of attorney of June 17,1864. I therefore proceed to the question whether they can be sustained, as executed under the letter of attorney of June 14th. • It is manifest that the authority given by the instrument was a conditional or limited one, in order to the exercise of which certain prerequisites must have occurred; thus the attorney could convey only upon application; the application must have been within three months next after the date of the bond to Brendlinger, which is referred to in the power; the applicant must have produced to the attorney an abstract of his title, certified from the recorder’s office; he must have paid the sum of 40 cents for each lot conveyed, and the expenses of the conveyance; and all other requisites and conditions set down in the bond to Brendlinger must have been complied with and performed; and if the conveyances here complained of, or any of them, were executed without performance of these conditions, it may, I think, be well enough said that it was, in the language of the bill, “without any authority whatsoever.” Bat the defendants severally deny this allegation of the bill, and there is no evidence, outside of the conveyances themselves, to show whether the conditions, set down in the letter of attorney of June 14th, were or were not performed; I think the case must therefore turn upon the question whether it was incumbent upon the complainant to prove the negative allegation of his bill in this respect, or upon the defendants to sustain the affirmative contained in the answer in response thereto ; that is to say, upon whom is the burden of proof %
It is argued, on the part of the plaintiffs in error, that, inasmuch as nothing appears to the contrary, the attorney
In Mr. Broom’s work (Leg. Max. 730*), it is said that the presumption applies to the acts of private individuals, especially when they are of a formal character, as writings under seal; and the same doctrine is asserted in substantially the same words in Mr. Phillip’s work on Evidence (5th Am. ed. 643*), where many examples are cited from reported cases.
I do not perceive, however, that any of the cases there referred to are quite analogous to this, and, so far as I have been able to examine them, they appear to be examples of the application of the same maxim in another form, in which it is sometimes seen in the books, and in which lapse of time is essential to raise the presumption. 1 Greenl. Ev., § 20. There are, indeed, many instances wherein the courts, although not expressly referring to this maxim, appear to apply the rule which it announces; e. g., the seal of a corporation appearing affixed to a deed purporting to be theirs, is presumed to have been affixed by proper authority. Kohler v. Black River Falls Iron Co., 2 Black, 717. So, where a corporation is authorized by its charter to acquire and hold real or personal estate in a particular manner, or for particular purposes, and it is found in possession of such estate, it is presumed, nothing appearing to the contrary, to have acquired it in the manner and for the purposes authorized in the charter. Downing v. Mt. Washington Road Co., 40 N.H. 234; DeGroff v. Am. Linen Thread Co., 21 N. Y. 126;
So, where an. insurance company was authorized to receive promissory notes in certain cases only, it was held, in an action brought by the corporation upon certain notes, wherein it was named as payee, that, in the absence of proof to the contrary, it must be presumed that they were executed in a transaction within the corporate powers, and in which the company were authorized to receive them. Mutual Benefit Life Ins. Co. v. Davis, 12 N. Y. 573.
The case of Howard v. Boorman, 17 Wis. 459" court="Wis." date_filed="1863-06-15" href="https://app.midpage.ai/document/howard-v-boorman-6599048?utm_source=webapp" opinion_id="6599048">17 Wis. 459, asserts the same doctrine. The same presumption has been applied to negotiable paper executed by a corporation. Safford v. Wyckoff, 4 Hill. So in the case of negotiable paper purporting to be executed in the name of a partnership, the signature being shown to be in the handwriting of one of the firm, it is held that a presumption arises that the paper was executed in a partnership transaction, and not for the individual debt of him who subscribed it. McMullan v. McKenzie, 2 G. Greene, 368; Ensminger v. Marion, 5 Blackf. 210" court="Ind." date_filed="1839-11-22" href="https://app.midpage.ai/document/ensminger-v-marvin-7030296?utm_source=webapp" opinion_id="7030296">5 Blackf. 210.
These cases appear to me to be quite analogous to the one now under consideration. In every one of them the question was one of authority; authority to do the particular act, certain conditions concurring, was shown; and the courts presumed the concurrence of those things requisite to the rightful exercise of that authority, from the single fact that it had been exercised. And if we admit the doctrine of these decisions, it is difficult to deny its application to the present case; for it is not apparent that, upon principle, a distinction can be drawn between the case in which the authority is denied by letter of attorney, and those in which it springs from a charter of incorporation, or articles of copartnership; in each case the one exercising the authority is a private person, not acting under the sanction of an oath, nor liable to indictment for malfeasance. Nevertheless, the decisions here referred to have not, so far as I know, been questioned, and many others asserting quite as broad a doctrine might
Against these decisions, however, are others equally in point, and entitled to equal respect. In Bruce v. Duke, 2 Litt. 245, Bruce brought his bill to compel a conveyance of certain lands, to one moiety whereof he derived title from Maury, by conveyance executed in his name, by Barry, his attorney; the letter of attorney after conferring power to settle and adjust land titles in Kentucky, and to bring, and defend suits necessary thereto, and to convey lands which the principal had before contracted to convey, contained a power in these words : “and if necessary, to make sale of any of my said lands ; ” and it was objected that no necessity for the conveyance, by the attorney, under which the plaintiff claimed, was shown to have existed. To this the court, upon consideration of the evidence, were agreed; and as to whether the exigency authorizing the sale was to be presumed from the fact of the conveyance, the court say, that “ to admit the fact of a deed having been made, to be evidence of a necessity to sell, would, in effect, prostrate all distinctions between limited and general authorities. A purchaser would then, after procuring a deed of convey
So, in the same court a distinction has been observed between public officers, acting under general laws, and agents or commissioners appointed pro Jiac nice, by special statute ; and as to the acts and proceedings of the latter class, the presumption, omnia rite esse acta, is said not to apply. Thus, where commissioners had been appointed by act of the legislature, with authority to sell and convey such part of the lands of a decedent, as might be sufficient to satisfy his debts, on ejectment, by one deriving title through conveyance of the commissioners, it was held that the plaintiff could not prevail, the existence of debts of the decedent not being affirmatively shown; and that upon no principle could the presumption usually indulged in favor of the acts of public officers acting under general laws, be extended to the case of those deriving authority under special enactments, to perform services of a private character. Pittman v. Brownlee, 2 A. K. Marsh. 210. So in Gebron’s Heirs v. Jones, the supreme court of Virginia, in a case precisely like that of Wilburn v. Spofford, arrived at a conclusion directly opposed to that of the supreme court of Tennessee. In that case, lands had been conveyed, in trust, to secure certain indebtedness of the grantor, with power, in the trustee, to sell upon default in payment, after giving notice; bill was brought to set aside a conveyance by the trustee upon the ground that the sale was made without notice ; and the court held that no presumption could be indulged, either in favor of or against the regularity of the trustee’s proceedings. Upon authority, therefore, it cannot be said that out of the mere fact that complainant’s attorney has executed the conveyances mentioned in the bill, a legal presumption arises that he complied with those limi
Nevertheless, it appears to me, that, what amounts to the same thing in this case, the conveyances ought, as against the complainant here, to be received as prima facie evidence of their own regularity. It is conceded that, without prior performance of the conditions limited in the letter of attorney, the conveyances are as absolutely without authority as though the letter of attorney had never been executed. But the grant of any thing implies the grant of every thing necessary to the enjoyment of the thing granted; and so every express power bears with it, by implication, every other power necessary to its exercise. Broom’s Leg. Max. 362*; DeWitt v. San Francisco, 12 Cal. 289; Rex v. Jackson, 1 T. R. 653. And here, the principal having deputed, to the attorney, authority to act upon performance of the particular conditions nominated, has, by necessary implication, conferred the power to judge whether these conditions have been performed. The attorney was authorized to convey, but he could not convey until the conditions named by his principal were first complied with; of necessity, therefore, he was bound to judge and determine, in the first instance, whether such compliance had been made; and power to so judge and determine is as clearly given as though it had been set down in express words; and the attorney having power to determine for his principal, as to the performance of those conditions, his admission that the conditions had been performed, which is by implication contained in each of these conveyances, is within the scope of the power delegated to him, and, being made during the execution of the agency, it is evidence against the principal. And herein this present case is distinguishable from Bruce v. Duke, for there the controversy was between those claiming under the conveyance executed by the attorney and a third person not claiming under the principal; and, as against such third person, the admissions of the agent were no evidence whatsoever.
And, as this question is not without difficulty, I have examined the authorities with some diligence, to ascertain what rule is applied by the courts in cases like the present. In the text-books, it is stated with tolerable clearness, as follows : That where the plaintiff grounds his action upon negative allegation, the burden of showing that negation is upon him. 1 Greenl. Ev., § 78. But to this rule is this exception: That where the subject-matter of the negative is such as not to admit of convenient proof, and it may reasonably be inferred, that, if untrue, the defendant has, peculiarly within his control, the means of showing the affirmative, the burden of proof shall be upon him. 1 Greenl. Ev., § 79 ; 1 Phill. Ev. (5th Am. ed.) 813*. This exception is grounded upon convenience merely; the law requiring that the plaintiff should produce evidence which, in the nature of things, must probably be inconclusive and unsatisfactory, and the production of which may involve delay and inconvenience, when, if the allegation be untrue, the defendant has, in his own hands, the means of at once and conclusively disproving it.
But upon this exception it seems, is to be noted another. That, though the caoe be as supposed in the last exception, yet if the negative involve a charge of fraud, or criminal omission of duty, the burden of establishing it shall, in
As to the second question: The negative alleged in the bill, like almost every negative allegation, admits not of convenient proof, and the defendant may well be presumed to have a knowledge of the several transactions which preceded each of these conveyances; and possibly, of whether the conditions in complainant’s letter of attorney were or were not performed; but, with some hesitation, we have concluded that it cannot justly be said that the evidence of these transactions is more peculiarly within their control
What, is here said in the application of the general rule above stated, must not be regarded as a precedent which shall bind us in all cases.
Generally, whoever alleges negative matter material to the relief prayed, must prove the negative; whether any particular case is within the exception above noticed, in which
The final decree of the district court, given on the 18th day of November, a. d. 1870, will therefore be reversed, and the cause will be remanded to the district court, with directions to that court, that, as to the plaintiffs in error, the bill be dismissed, with costs. The decree given against the defendant Hutchinson, in the court below, not being complained of, will not be disturbed.
Reversed.