50 F. 712 | U.S. Circuit Court for the District of Southern Ohio | 1892
The questions now before the court for determination in the above causes arise under the cross bill, and relate chiefly to the proper construction of the powers of attorney given in 1881 and 1882, by Robert Barr, Samuel Barr, Jane Chapman, and Martha Reed, to Ozra J. Dodds and Irvine B. Wright, and to the effect and operation of the releases which said attorneys in fact executed to the several cross defendants under and by virtue of said powers. Cross complainants do not attack or attempt to set aside and vacate said releases for fraud or want of consideration. They claim that said powers of attorney did not authorize any release of the interests in the land which their present suit seeks to recover; that said powers of attorney only authorized their agent to release such interest in the land as they inherited as heirs
Cross complainants first move to suppress the power of attorney and releases made thereunder. This motion is denied. Raid power of attorney and the releases executed thereunder are relevant and competent evidence in behalf of cross defendants, and no valid reason or ground for excluding these documents is presented.
On the other questions arising under said power of attorney and the releases executed by Irvine B. Wright as attorney in fact, and in respect to the circumstances and conditions attendant upon and surrounding the parties at the date or dates of their execution, there are no disputes or controverted tacts or issues. The material facts are that in July, 1881, Robert Barr, ¡Samuel Barr, Jane Oliapinan, and Martha Reed commenced four several suits in the court of common pleas of Hamilton county, Ohio, against many of the then occupants and claimants of the land in controversy, alleging that William Barr, Sr., died seised of the fee in said land, and that each of them, respectively, was '-'the heir at law to the estate of William Barr, Sr., deceased, and as such heirs at law were the owners in fee simple” of an undivided interest therein which they respectively sought to have declared and set apart to them. The attor-noys representing said plaintiffs were to be paid a contingent fee as compensation for their services, based upon what might be secured by compromise of their claim, or might be recovered in the suit. After the suit -was commenced said plaintiffs executed first to said Ozra J. Dodds in 1881, and, after his death, to Irvine B. Wright, in 1881 and 1882, power of attorney “to bargain, sell, and convey in fee simple, by deed of special or general warranty, for such price in cash or upon such terms of credit and to such person or persons as he shall think fit, my interest' as heir at law of my father, William Barr, who was the son of John Barr, who was the brother and heir at law of William Barr, Sr., deceased, in and to the whole or any part of” the land in controversy, (describing the same,) “being the same premises owned during his life by Wm. Barr, Sr., the granduncle of the constituent of this power of attorney.” The several powers of attorney are in substantially the same form. During 1881, 1882, and 1883 the attorney in fact under said power made releases of all the right, title, and interest of the several constituents of said powers in the land in controversy, generally by quitclaim conveyances, which in some eases followed the language of the power of attorney in the use of the words “as heirs at law of my father, William Barr, who was the son of John Barr, who was the brother and heir at law of Wm. Barr, Sr., deceased,” etc., and in other cases omitted those words.
1. That all releases and conveyances made and executed by Irvine B. Wright as agent or attorney in fact after the death of Martha Reed on May 18, 1883, are void as to her heirs, and do not operate in any way to cut off the interest of such heirs in and to the parcels of land covered by or embraced in the releases made after her death. There is nothing in the evidence to take the case out of the general rule that the death of the principal is a revocation of the agency or power of attorney by operation of law, whether the fact of the principal’s death be known to the agent or not when executing the supposed power. No act or acts of Mrs. Reed’s heirs are established which estop them from claiming and insisting upon the benefit of this general rule. The present case is not controlled by the decision of the Ohio court of appeals in Ish v. Crane, 8 Ohio St. 520. There the guardian of the heirs had demanded and received a portion of the purchase money in this behalf. The heirs do not1 appear to have disaffirmed their guardian’s act in so doing. The transaction' was a matter in pais, and not by deed. Neither was it one, says the court, which of necessity had to be done in the name of the principal. In the present case there is nothing in the way of subsequent receipt of all or a portion of the considerations for the releases made after Mrs. Reed’s death by her heirs. The transaction was not in pais. It was by deed, and had necessarily to be done in- the name of the principal. The case of Ish v. Crane does not apply, and, if it did, we should feel disclined to follow its authority on the question of estoppel.
3. That the interests in the land which Robert Barr, Samuel Barr, Jane Chapman, and Martha Reed, or either of them, acquired as the devisee or devisees of Robert Barr, deceased, were not covered by or included in said power of attorney, nor were they released by the conveyances which the agent, Wright, executed under and in pursuance of the authority conferred by said powers. The interests which the constituents of said owners, as devisees, had under said will were not involved in the suits instituted in 1881. They were not intended to be, nor is there any language employed which requires that this interest should be included in the powers of sale. It is shown by S. A. Miller, John D. Gallagher, George F. Meyers, and Irvine B. Wright, the attorney in fact, that during the period of said transactions they knew of no such interest. No purchaser is shown to have dealt with the agent in respect to that' interest. While that interest may have vested in 1822, upon the death of the testator, the evidence of the devisees’ title under the will was not perfected until 1884, — long after the releases were executed. Until the probate and record of the will in Hamilton county, Ohio, the constituents of- the power, or those of them having such interest as the