160 N.Y.S. 834 | N.Y. App. Div. | 1916
Lead Opinion
I recommend an affirmance of this judgment upon the opinion of Mr. Justice G-reenbaum at Trial Term, and would add
Plaintiff as attorney in fact assumed to sell some lands in Tennessee to defendants’ testator. Under the power of attorney, as was known to defendants’ testator, plaintiff was to receive the full purchase price in excess of $10,000. The defendants paid what was. equivalent to $10,000 in cash and $10,000 in notes, drawn payable to the plaintiff’s principal. Those notes were immediately turned over to the plaintiff to represent his interest in the sale. The title to the property failed and plaintiff seeks to escape the defense of failure of considera-' tion by claiming to hold the notes as a purchaser for value.
The deed was originally drawn in form from plaintiff acting as attorney in fact to defendants’ testator. One Louise J. Traynor joined in the deed.to convey any right of dower that she might have. Afterwards the plaintiff’s principal, McMurray, also joined. The deed recites a covenant on behalf of the parties of the first part that they are lawfully seized and possessed of said property and that they have full right and authority to convey it. Defendants’ counterclaim is upon this covenant.
In Schlemmer v. Nelson (123 Minn. 66) the plaintiff was the agent of the Sperry Realty Company in making a contract for the sale of certain real estate. The Sperry Realty Company did not have the title to the real estate, but had an option thereupon. A note for $500 was delivered for the first installment of the purchase price and by the Sperry Company transferred to plaintiff. Under its contract the Sperry Company was limited to sixty days in which to perfect title, and if it failed, the contract by its terms became void. It appearing that the company never acquired title, and prior to the trial had transferred its rights under the ■ option to parties other than the defendant, it was held that the consideration for the note had wholly failed, and plaintiff, having taken the note with knowledge of all the facts, was not in a position to invoke the rule .protecting a good faith purchaser.
A similar holding was that in Boit & McKenzie v. Whitehead (50 Ga. 76). In this case the plaintiffs were the agents
The holding that Miller was not the holder of this note in due course does not necessarily involve the holding that he is bound by the covenant of seisin in the deed. The deed was first executed by Miller, the attorney in fact, without McMurray. He became grantor in the deed within the statutes of Tennessee only in execution of his power of attorney. He was not a record holder, so that any conveyance was necessary from him, and as the grant was of his interest as attorney, and not his individual interest, so without specific declaration his covenant is his covenant as attorney and not individually. The fact that McMurray afterwards signed the deed is not sufficient to indicate any intention upon the part of Miller to become personally liable upon the covenant.
The judgment should be affirmed, without costs.
McLaughlin and Dowling, JJ., concurred; Page, J., concurred in result; Clarice, P. J., dissented in part.
Dissenting Opinion
I dissent from so much of this opinion as affirms the dismissal of the complaint and vote to reverse and concur in the affirmance of the dismissal of the counterclaim.
Judgment affirmed, without costs.