180 Ky. 352 | Ky. Ct. App. | 1918
Opinion op the Court by
Affirming.
This is a controversy between the "War Fork Land Company and James Marcum as to the ownership of two tracts of land in Jackson county, one containing one hundred acres and the other a one-half interest in fifty
The War Fork Land Company traces its title to Philip Marcum in this way: On March 6th, 1872, as appears from the record, one John Marcum made a deed to George M. Pigg conveying to him, the one hundred-acre Philip Marcum patent and Philip Marcum’s undivided one-half interest in the fifty acres patented to Philip Marcum and George M. Pigg. This conveyance purports to have been made “By Philip Marcum of the first part and George M. Pigg of the second part” for the recited consideration of $200.00 paid in cash. The deed is signed “Philip Marcum by John Marcum,” and in July, 1873, it was acknowledged “By John Marcum, Attorney for Philip Marcum to be his act and deed,” and was recorded on the date of its acknowledgment in the clerk’s office of the Jackson county court. This deed contains the following covenant of warranty: “To have and to hold the same with appurtenances unto the party of the second part his heirs and assigns forever and the said party of the first part does further covenant with the said party of the second part that he will warrant and forever defend the title to the foregoing described land and premises from the claims of himself and his heirs and assigns forever also if the land is lost by any other claim the party of the first part covenants to refund to the party of the second with interest the consideration above acknowledged . . . . ” Subsequently by mense conveyances from Geo. M. Pigg these lands came into the possession of the War Fork Land Company.-
It will thus be seen that John Marcum, in making this conveyance, assumed to act as the attorney in fact of Philip Marcum, although he was not, as is admitted, at this time, the attorney in fact of Philip Marcum, nor did he have at this time any authority, verbally or in writing, to act as the agent, or attorney in fact, of Philip Marcum; nor does the record disclose why he assumed the authority to make the conveyance. It appears, however, that subsequent to this and on February 9, 1874, Philip Marcum and his wife, Mahala Marcum, did appoint John Marcum their attorney in fact to sell and convey all lands owned by them in the
James Marcum, the appellee, asserts title to the land in controversy by a deed made to him in June, 1914, by Philip Marcum, patentee, who was then a single man and a resident of Oklahoma.
As the deed made to George M. Pigg, the remote vendor of the War Fork Land Company, by Philip Mar-cum purporting to act through his agent and attorney, John Marcum, was executed and recorded in 1873, many years prior to the conveyance made by Philip Marcum to the appellee, James Marcum, it will at once be seen that if the conveyance made to George M. Pigg was valid, the War Fork Land Company has the superior
On behalf of James Marcum, the argument is advanced that as the deed to Pigg was made about two years before John Marcum was authorized by the power of attorney to sell and convey the land of Philip Mar-cum, and at a time when it is confessed that John Mar-cum had no authority to make the conveyance, it was and is a void deed, and consequently did not divest Philip Marcum of his title to the land, although, subsequently, Philip Marcum, by the power of attorney heretofore referred to, authorized John Marcum to convey all of his lands in Jackson county, which would, of course, include the land theretofore conveyed by him to George M. Pigg.
In opposition to this it is the contention of the War Fork Land Company that although James Marcum had no authority to make the conveyance to Pigg at the time he did, his subsequent authority, under the power of attorney, related back to and imparted life into the conveyance previously made, and it is further said that this power of attorney, in effect, amounted to a ratification by Philip Marcum of what John Marcum had done.
At this point we may stop a moment to consider the evidence bearing on these transactions: James Marcum, the appellee, merely testified that he had acted as the agent of Philip Marcum, who was his uncle, in looking after his land in Jackson county for about twenty years before this suit was brought, and that Philip Marcum claimed to be the owner of several tracts of land in Jackson county that he had never sold, among them the tracts that he deeded to him in 1914. John Marcum,'" who acted as agent for Philip Marcum, did not testify nor do we find in the record any explanation of his failure to do so. Philip Marcum, offered as a witness by James Marcum, the appellee, testified as follows: “Q. Are you the same Philip Marcum that sold and conveyed to James Marcum the plaintiff in this case, a 100-acre tract of land on War Fork creek in Jackson
It will thus be seen that there is no evidence, in the record, that Philip Marcum consented to the conveyance made to George M. Pigg by John Marcum, or that he had any knowledge or information that this conveyance had ever been made. It is true that under the power of attorney John Marcum was authorized to make such a conveyance as he did make previous to the power of attorney, but it stands admitted that he had no authority whatever to make the conveyance at the time it was made. It must, also, be conceded that Philip Marcum never ratified, in any manner, the act of John Marcum making this conveyance, for the simple reason that Philip Marcum never knew anything about it, and it is too well settled to require even the citation of authority that a party cannot be charged with notice of something that he did not authorize and never heard of, or be estopped by some act or conduct of another party that he never knew anything about. Ratification implies knowledge, and without knowledge there can be no ratification. It is, also, plain, that nothing can be found in the power of attorney that would justify an opinion that, by this power of attorney, Philip Marcum ratified what John Marcum had previously done, because the power of attorney expressly states that Philip Marcum only ratified and confirmed ‘ ‘ Such deeds, conveyances, bargains, sales which shall at any time hereafter be made by said attorney touching or concerning the premises.” We may, therefore, dismiss, without further comment, the argument of counsel that Philip Marcum ratified the act of John Marcum in making the deed to Pigg.
A case directly in point is Moore v. Lockett, 2 Bibb. 67. In that case, Lockett contended that Moore was entitled to one-half of a tract of land patented in the name of January; that Evqns as he alleged was authorized by Moore to sell, and did in 1784 sell two hundred acres of it to Henderson, and Henderson, in 1787, to him, assigning to him the Evans bond. Moore denied that Evans had any power to sell the land to Henderson. It further appears, from the opinion, that subsequent to 1784 Moore did give Evans authority to make the sale, but the court, in holding that this subsequent authority did not impart life to the previous act of Evans in selling the land, said: “This power being given after the sale to Henderson, can have no influence upon the' decision of the question; for if the agent exceeded the scope of his authority in making the sale, a subsequent extension of his power, without a ratification of what had been done, could not legalize it.” Another case announcing the same principle is Britt v. Gordon, 132 la. 431, in which the court, in holding that a power of attorney to do future acts did not itself amount to a
There is a well-known principle of law to the effect that if a party, who has no title to land, nevertheless sells and conveys it with covenant of general warranty, and thereafter comes into the title to the land so previously sold his title will inure to the benefit of the grantee. Logan v. Moore, 7 Dana 74; Dickerson v. Talbot, 14 B. M. 49; and it is sought to apply this principle to the facts of this case, but we are unable to perceive any analogy between the two. If a person sells with covenant of warranty, land to which he had no title and thereafter he acquires title to the land, it would be, manifestly, unjust to permit him to defeat the title he • had conveyed with a covenant of warranty, by thereafter setting up a hostile title in himself, but where a person, as in this case, has, without authority, undertaken to sell and convey the land of another person, it is too plain for argument that the real owner of the land should not be precluded by this wrongful act from asserting his title to the land.
Another contention in behalf of the War Fork Land Company is that as John Marcum was authorized in 1874 to sell the land owne'd by Philip Marcum in Jackson county, Philip Marcum should be charged with notice that John Marcum may have acted under the power, and, therefore, his failure to take any measures
There is a further suggestion tkat as tke power of attorney was put on record, as well as tke deed previously made by Jokn Marcum to Pigg, James Marcum was charged witk at least constructive notice of tke fact tkat tke land, at tke time ke purchased it, kad been previously conveyed. It may be admitted that James Marcum had constructive notice of tke power of attorney; but, assuming tkis, ke was not required to look back of tke power of attorney; ke was only put on inquiry and notice as to what took place subsequent thereto, and the record showed tkat the land here in controversy kad not been sold or disposed of under tke power of attorney. But even if James Marcum kad actual notice of tke deed made by Jokn Marcum to Pigg, he kad tke rigkt to ignore it because it was a void thing.
The remaining issue relates to tke assertion of claim on tke part of the War Fork Land Company to tke land in question under its alleged adverse holding. It appears tkat tke War Fork Land Company owned in 1914, and for many years prior thereto, a body of land containing about twelve thousand acres, and that it kad marked a well-defined boundary on tke exterior lines of its holdings. It further appears that tke land here in question was embraced within the exterior lines of tke twelve thousand acres claimed by tke War Fork Land Company, and that for more than fifteen years before tke institution of tliis action it was asserting title to tke whole of tke land within tke lines of its boundary.
But tkis claim of adverse possession to all of tke land within tke lines of its boundary did not serve to put
We think the judgment of the lower court, finding that James Marcum was the owner of the land, was correct and' it is affirmed.