59 Md. 56 | Md. | 1882
delivered the opinion of the Court.
The appellants having become purchasers at trustee’s sale of certain leasehold property in the City of Baltimore, sold under a mortgage of the same by Luke Z. Barrett to Thomas S. Hughes, dated the 22nd of September, 1880, filed an exception to the ratification of the sale upon the ground that Barrett had no title to the property
The property was purchased in 1884 by Maurice Barrett, and on the 15th of April, 1880, he and his wife, residing in the County of Galway, Ireland, gave a power of attorney to their son, Luke Z. Barrett, of Baltimore, by which they constituted him “our true and lawful attorney, for us, and for each of us, and for our proper use and benefit, and also for the use and benefit of each of us severally, to sell, transfer and assign unto any person or persons whatsoever, and for such price as our attorney shall think fit, all or any property of whatsoever description held or owned by us, or either of us, in the said City of Baltimore, or in his discretion, to borrow money in his oion or our names, and to pledge said property by way of mortgage to secure the repayment of the same, and interest thereon, or in our name to lease said property, or any of it upon such terms and upon such conditions and times as our said attorney may determine. And also for us, and in our names, to make, sign, seal, execute and deliver all deeds or acts of conveyance that may he necessary, to sell and convey, assign, mortgage or lease said property, or any part of it, and to receive and give acquittance for the purchase money thereon, or the money which may he borrowed thereon, or the rents thereof.”
On the 12th of May, 1880, the property was conveyed to Eliza H. Bealmear in fee for the consideration of $3333.33. The deed of conveyance upon its face purports to he made “by Maurice Barrett, and Catharine Barrett his wife, acting by their attorney in fact Luke Z. Barrett, under and by virtue of a power of attorney dated the fifteenth day of April, 1880, and hereunto annexed and recorded herewith,” and it was signed—
“ Maurice Barrett, [Seal.]
“By his attorney, Luke Z. Barrett.
“ Catharine Barrett, [Seal.]
“By her attorney, Luke Z. Barrett.”
On the same day Mrs. Bealmear executed a lease of the same property to Luke Z. Barrett for ninety-nine years, renewable forever, reserving an annual rent of $200, with the privilege to the lessee of redeeming the same at any time during the year commencing on the 1st of May, 1885, and ending on the 1st of May, 1886, but not afterwards, upon payment of the sum of $3333.33, and all arrearages of rent due at the time of payment.
Both these deeds were recorded at the same time, and, as appears by the oral testimony taken in the case, were executed for the purpose of enabling the parties to create this redeemable ground rent upon the property, in order to secure a loan of $3333.33, made by Mrs. Bealmer to Luke Z. Barrett. In the following September, Barrett, the lessee, mortgaged his interest in the property to Hughes, to secure a loan of $800, and it was under this mortgage that the sale in controversy was made. The two principal grounds upon which the purchasers resist confirmation of this sale and deny the title of the mortgagor are:
1st. That the power of attorney did not authorize the execution of the conveyances by which this ground-rent was created.
2nd. That even if such conveyances be within the scope of the power, still the deed to Mrs. Bealmear was not executed in accordance with sec. 27, of Art. 24, of the Code.
First. As to the first of these propositions, it is contended on the part of the appellants, that all powers of attorney must receive a strict interpretation, that the authority is never extended by intendment or construction beyond that which is given in terms, or is absolutely
Second. As to the second proposition it is clear that the deed to Mrs. Bealmear was executed in strict conformity with the requirements of the common law. It was executed in the names of the principals and as the act of the parties giving the authority. By the second resolution in Combe’s Case, 9 Coke, 76 b, it was resolved that “when any has authority as attorney to do any act, he ought to do it in his name who gives the authority, for he appoints the attorney to be in his place and to represent his person and, therefore, the attorney cannot do it in his own name, nor as his proper act, but in the name and as the act of him who gives the authority.” The question then is, has. this mode of executing deeds or other instruments under seal, by virtue of a power of attorney, been abrogated and made void by section 27 of Article 24 of the Code ?
This section, which is a codification of section 23 of the Act of 1856, ch. 154, simply provides that “any person executing a deed, conveying real estate as agent or attorney for another, shall describe himself in and sign the deed as agent or attorney. In the case of the Land Co. vs. Doll, 35 Md., 89, an exception was taken to the admissibility in evidence of a deed of real estate to Doll from Mr. Urner under powers of attorney from Floeckher and Castle. That deed upon its face purported to be made “by Milton Gr. Urner, attorney,” by virtue of certain powers, of attorney therein referred to. It was signed “Milton Gr. Urner, attorney, [seal,] ” and in the certificate of acknowledgment it is stated that “Milton Gr. Urner, attorney, appeared and acknowledged the aforegoing deed to be his act.” In disposing of this exception the Court rejected the deed upon other grounds, but said: “The deed professes to be made by c Urner under and by virtue of powers of attorney from Eloeckher and Castle/ Urner is described in, and has signed the deed as attorney, as directed by
It follows from what we have thus said, that the order appealed from, which overrules the exceptions and ratifies, the sale, must be affirmed.
Order affirmed, and cause remanded.