34 Vt. 460 | Vt. | 1861
This 'is an action of ejectment for land in Wheeloek, to which the plaintiff claimed title by virtue of a levy and set off on an execution in his favor against David Felker, and of a former recovery in an action of ejectment for the same premises against the same David Felker. The defendants respectively claimed title to parcels of the same premises under David Felker, jr., the son of said David Felker, by intermediate conveyances which transferred his estate therein. It was conceded by both parties that the land was originally owned by T. J. Cree, and that it was conveyed by said Cree on the 30th September, 1847, by a deed, to a grantee who is named therein as “ David Felker, jr., of Barton, in Orleans county,” audit appeared that the two Felkers, father and son, at that time both resided in Barton. The plaintiff’s evidence tended to show that thg father made the bargain with Cree for the purchase of the land, and agreed with him upon the price, and the terms of payment, and paid to him one hundred dollars at the time of the execution of the deed, and executed to him several promissory notes for the balance of the purchase money, and also a mortgage to secure the payment of the same, signing both the notes and the mortgage with the name of “ David Felker, jr.,” and said nothing about purchasing the land for any one but himself, and acted throughout the transaction apparently in his own behalf; that Cree supposed that he was purchasing for himself, and that’his name was in fact David Felker, jr.; and that the said Felker, the father, moved on to said land immediately after said purchase, and occupied the same for several years as the apparent owner, and also that he paid to Cree several of the said promissory notes which first became due. It was conceded on the part of the defendants that they each had knowledge of the plaintiff’s claim of title when they purchased their respective parcels of the land in controversy, and that David Felker, jr., the son, when he conveyed the land to their grantor, gave to him a bond of indemnity against the plaintiff’s levy; and this suit was defended by said David Felker, jr., the son. The defence set up was that the said David Felker, the father, in making the purchase of the land of Cree, and in the negotiations connected
The case presents facts of a peculiarly novel and anomalous character, but the real question is, to whom did the legal title pass under the deed executed by Cree ? The addition of “ jun, ior ” is in law no part of a person’s name, but it is used as merely descriptive of the person, and is assumed, applied, and discarded at will. Brainard v. Stilphin et al., 6 Vt. 9; Blake et al. v. Tucker, 12 Vt. 39; Isaacs v. Willey et al., 12 Vt. 677. Its use in this deed as an addition to the name of David Felker-as the grantee is not therefore necessarily conclusive as a descrip, tion or designation of the person to whom the title was trans, ferred, if two or more persons will answer the same and the other matters of description in the deed. The addition is at the best but presumptive evidence that of twq persons bearing the'
An agent may be authorized by parol to treat for and buy an estate, or to act upon a contract or sale of premises ; and, though he purchase in his own name, yet the fact of the agency so as to charge the principal may be made out by parol evidence, though the principal was not known to the other contracting party at the time the agreement was made, and the agent acted as, and appeared'to be, the principal. Sugden on Vendors and Purchasers, (13th Ed.,) p. 118 ; Chitty on Contracts. (10th Amer. Ed.,) pp 222, 240. The rule is equally applicable to contracts for the sale of real and personal property, the contract of the agent being in law the contract of the principal. There is an exception in the case of a deed, which cannot be executed by an agent so as to bind his principal, unless the authority to execute the instrument be conveyed by a specialty. In the large class of commercial transactions conducted through the agency of factors and brokers, the cases are very frequent in which the principal is personally liable upon any contract of his agent, if macje
We regard the only important question which the case presents as being, which of the two Felkers, the elder or the younger, sustained the character of the real principal in the transaction