24 Ky. 285 | Ky. Ct. App. | 1829
delivered the opinion of the Court.
The chief question in this cause, turns on the validity of the acts of Samuel Hopkins, deceased, acting in the character of attorney in fact, for Walter Alves. On the 27th of September, 1807-, Alves executed a power of attorney, vesting authority in Hopkins, to sell 494 3-4 acres of land, in Henderson’s grant; “also, all his, said Alves’part, or share of the north west quarter section of lot No. 5, north of Green river, in said grant, being the same that was allotted to James Hogg, by the company in the deed of partition, forty-one forty-eighth parts thereof, being by him conveyed to George Hogg, and by him to said Alves. The deeds which show the above conveyances, being recorded in the office of. Henderson county, the legal title to the remaining seven forty-eighth parts still remaining in the heirs and representatives of said James Hogg, of whom said Walter is one, &c.” The power proceeded as follows: “and I authorize my said attorney to sell my said forty-one forty-eighths of said lot, say 845 acres, as it is at present undivided, ar to obtain any equitable division thereof, agreeably to law, and sell it all together or partially, as he may think best; and I further empower said Samuel Hopkins, to sell for credit or otherwise, and for such sums of money as he may think proper, and I do hereby hind myself to ratify and confirm whatever my said attorney shall legally do in my name, -jn virtue of the premises.” On the 13th o,f October,
The heirs of Alves do not resist a specific execution of the contract, upon any plausible ground, other than the want of authority on the part of Hopkins, under-his power, to bind them or their ancestor, by the contract as made and entered into with Vanada and Wi.npee. The points relied on by them are: 1st. That the power of attorney did not authorize Hopkins to sell less than Alves’ entire interest in lot No. 5, without first having procured a division and a severance of his interest from that of his co-tenants; in which event it is conceded he might have sold less than the entirq interest: And, 2d. That the contract as signed
In relation to the first point, the defendants, heirs of Alves, insist that Hopkins departed from and exceeded his power, and consequently, that his acts are void, We readily admit, that whatever act an agent does, unauthorized by the authority vested in him, is not binding on his principal, and wé also concede that agents may be limited and restricted to specified and particular acts, so that they may be deprived of all discretion. To enforce these doctrines, it was Useless lo cite authority. They are based upon tile Common sense of all men, and engrafted in every civil code; and were it otherwise, the principal’s most valuable rights might be sacrificed by the ignorance or wickedness of an agent, in whom the principal bad no intention to vest any discretion, or to give any power but to carry into effect positive instructions. Whenever one man presents himself as the agent of another, it is the duty of all who may have transactions with him, in his representative character, to inquire into the extent of his authority, and they must deal with him at their' peril. But all powers conferred must be construed with a view to the design and object of them, and the means most usual and proper for carrying their design and object into effect, having respect to the language Which the maker of the power employs, to Convey his meaning and intent.
The language of all nations is liable to fluctuate with the changes that take place, in the progress of time, in their affairs and condition. A word or a phrase which has a definite meaning, and which will be universally understood in the same sense by all who speak the language, from various causes, may loose its original signification, and ultimately have a meaning attached to it, essentially different. It is the duty of courts to take notice of these mutations in language. Without doing so, they cannot observe the great and paramount rule of effectuating the intentions of men in all their transactions. Accordingly, in the case of Lampton vs. Haggard, 3 Monroe, 149, this court have interpreted the expressions “Kentucky currency” and “currency of the state,” which are equivalent, to mead Very different things at different times.
Had Hopkins authority vested in him, by the power1 to sell less than the entire interest of Alves, in lot No 51 If he had not, then he has conferred no right on Vanada, and imposed no obligation on Alves. The question must be answered by construing the power according to the rule prescribed, that is, with a view to the design and object of the power, ánd the means most usual and proper for carrying the design and object into effect, ascertaining these by the popular signification of the language employed at the date of the powerj by its maker, to convey his meaning. The first sentence in the power, relative to lot No. 5, authorizes Hopkins to sell all Alves’ part or share of the north west quarter section of lot No. 5. Were this the only sentence in relation to this land, there could be no doubt of Hopkins’s authority to sell, not only the forty-one forty-eighths, conveyed to him by George Hogg, but also the interest he held in the residue, as one of the heirs of James Hogg. By subsequent sentences^ the power States that the attorney may sell forty-one forty-eights of said lot¿ say 845 acres, as it was undivided, or to obtain a division and sell it altogether or partially^ as he may think best. It is contended that those last sentences qualify the first, and deny to the attorney the power to sell the interest of Alves, held as one of the heirs of James Hogg, and also confine the attorney to making a sale of the whole 845 acres, as it stood, undivided, at the date of the power, to one or more purchasers, in a single contract, at the same time¿ or to a sale of Alves’s interest altogether, or in parcels, after a division shall have been obtained.
There is no express declaration on the face of the power, which shows an intention on the part of Alves, to limit and restrict, by these latter sentences, the operation of the grant of the power in the first instance, to sell the entire interest. The argument in favor of such restriction's founded on the supposition that the authority to sell, in the particular manner pointed out¿ excludes the idea that a sale can be effected in any other way. We are of opinion that the maxim “eaipressio unius csl exclusio alterius,” does riot apply. Such a construction would tend to nullify the grant of power to sell the entire interest, first given, which does not prescribe any rule for the government of the attorney$■
Butitis urged, that Hopkins sold to Vanada and Winpee, 325 acres, by metes and bounds, and thus he sold land, which in part belonged to Jas. Hogg’s heirs, as no division had been effected between them and This view of the subject is not warranted by the written contract, entered into, between Hopkins, Vanada and Winpee. By that contract, Hopkins, for himself and Alves, only sells the land they owned or possessed in lot No. 5, north east of a line,' to be run across the said lot, &c. If James Hogg’s heirs had any interest in lot No. 5, north east of the contemplated line, they retain it yet, and we perceive no objection to decreeing a conveyance of Alves’s interest, north east of that line, to Vanada’s heirs, and leaving them and Hogg’s heirs to settle their interests in common, if such shall be created, upon the principles of law, applicable to such cases.
The contract signed by Hopkins, states, that the conveyance is to be made by deed, with general warranty. It is contended, that this is unauthorized, by the power, and 7 Johnson, 390, and 5 Johnson, 57, are-relied on as authorities, to establish the position. The case in 7 Johnson, was that of an authority, given to sell a ship. It was special. The agent practised a fraud in the sale, and the question was, whether the principal was liable for it. The court held the negative, and very properly. A special delegation of power, to sell a ship, in the same manner that the owner might, gave no authority to practise a fraud, for which the principal would be liable. The agent therefore having exceeded his authority, was responsible for his fraud and not his principal. There is a distinction between the acts of a general agent, constituted by parol and known by his general conduct in the business of his principalj and those of a special agent with power to do a particular act; a p.ower to make representations is said to be necessarily implied by such general agency, and if they be falsely and fraudulently made,it is said the principal shall be answerable. In these doctrines, we find-nothing decisively applicable to the present case. They have grown out of mercantile transactions, and there is strong reason for holding the principal liable for the frauds of his agent, in all cases where an authority to make representations can be implied. The
The power executed by Alves, authorizes Hopkins, to sell. It says nothing about Hopkins executing conveyances of the title, or bonds for the title. It-gives Hopkins, unlimited discretion, as to credits. The statute of Frauds, requires contracts, relating to the sale of land, to be reduced to writing. When Hopkins made a contract of sale under the power of Alves, to make it obligatory, under the statute, it must be reduced to writing, either by an executory contract or by deed, passing the title. If the power to sell, does not necessarily import a power to convey, or the power to execute a tills bond or other executory contract, binding Alves to make a title, then his lettei of attorney, to Hopkins, although solemnly executed, would have no practical and binding effect. To consider it a nullity, would be absurd. How far then did it go in vesting. Hopkins with power to bind Alves by written contract? We cannot give it less effect, than to authorize Hopkins, in consideration of the sum, which the purchaser may promise to pay, to give a title bond in the name of Alves, binding him, on the payment of
The power of attorney, did authorize Hopkins to stipulate for the conveyance of the legal estate. If Alves did not intend to go that far, he was vesting a colourable power in Hopkins, by which to deprive men of their money, without responsibility on his part; no one would so understand the power from its general tenor and language. Hopkins having power to contract for the conveyance of the legal title, had therefore authority to stipulate for a conveyance by deed, with general warranty. Such would have been the legal result, without an express stipulation to that effect, had his contract with Vanada and Winpee, only covenanted to convey the legal title. The letter of .attorney sets up a legal title to the lands which Hopkins was authorized to sell in Alves. They are lands conveyed to him and descended to him. It is this legal title which he authorizes Hopkins to sell, and it is the legal estate, lie ought to assure by deed with general warranty. Such a construction does him no injury, and we think it warranted by law. The case of Fugate vs. Hansford’s executors; 3 Littell, 262, shews that an instrument expressive of a contract of sale, although it may not stipulate to convey, will justify a court of chancery in decreeing a conveyance. If it were then conceded, that Hopkins, qnder the power was not authorized to convey, yet as his right to sell is unquestionable, a court of chancery, by bringing Alves
The second question relates to the manner of signing the contract by Hopkins. It is contended by the
We are therefore of opinion, that ttié circuit court erred in refusing relief to the complainants, now plaintiffs in error; they were entitled to a specific execution of the contract of their ancestor, conformably with this opinion. Had it been proper to'dismiss the bill, as to the heirs of Alves, the court ought not to have dismissed it as to Hopkins’ administrator and heirs. If the plaintiffs in error, could not get the land from Alves’ heirs under the prayer for general relief, a decree should have gone against the representatives of Hopkins. But it is not necessary to state more on this point, as we are of opinion, the plaintiffs in error were entitled to a conveyance from Alves’ heirs, for the interestof their ancestor in their land described in thé contract sought to be enforced;
’The decree of the circuit courtis reversed, and the cause remanded with instructions, to render a decree not inconsistent with this opinion. The must recover their costs.