Williams v. Paine

7 App. D.C. 116 | D.C. Cir. | 1895

Mr. Chief Justice Alvey

delivered the opinion of the Court:

There is a preliminary objection taken to the right of the plaintiffs to maintain the bill, which is aside from the real merits of the case, and that is, that as the plaintiffs are out of possession of the property, and the principal relief prayed being for removal of cloud from the title and for partition of the property either in specie, or for sale for purposes of partition of the proceeds of sale, the plaintiffs are not in such relation to the property as to entitle them to apply for such relief. In other words, that the possession of the property being held adversely to the claim of the plaintiffs, a court of equity cannot grant relief in such case, but the remedy, if the parties be entitled to any, must be by action at law. It is clear, the bill is filed upon the assumption that the legal title to the property claimed is in the plaintiffs, and the bill therefore presents the case of parties out of possession, claiming the legal title to the property in question, and therefore seeking to oust the parties in possession, who also claim the legal title, and to compel an account for rents and profits. This objection, among others, was sustained by the court below upon the authority of Hipp v. Babin, 19 How. 271 ; Killian v. Ebbinghaus, 110 U. S. 573 ; Moore v. Shannon, 6 Mackey, 157; Freeman on Co-Tenancy and Partition, sec. 446; 2 Lead. Cas. Eq. (Agar v. Fairfax), pp. 900-903 ; 3 Pom. Eq., secs. 1387, 1388. It is supposed and contended by the defendants that this is nothing more in substance and legal effect than an ejectment bill; that the title, according to the allegations of the bill, is merely legal, and that there is no sufficient matter or circumstances stated to show the necessity for resorting to a court of equity. It is certainly the well established doctrine of a court of equity, that it will not entertain suits for establishing legal titles, and that such doctrine is founded upon the clearest reason; “ and the departing from that practice, where there is no necessity for so doing, would be subversive of the legal and constitutional distinctions between the different jurisdictions of law and equity.” Hipp v. Babin, supra. And it is equally well settled that “ where a party has á right to a possession, which he can enforce at law, his right to the rents and profits is also a legal right, and must be enforced in the same jurisdiction. The instances where bills for an account of rents and profits have been maintained are those in which special grounds have been stated, to show that courts of law could not give a plain, adequate, and complete remedy.” Id. Indeed, the case of Hipp v. Babin presents several features of close analogy to those presented in this case. And with respect to the matter alleged as constituting a cloud upon the title, it is well settled, that only those having a clear legal title, with the possession, can ask a court of equity to remove a cloud on title. Orton v. Smith, 18 How. 263. The matter alleged to create a cloud upon the title is apparent of record, open to the view and inspection of every one, and presents only a question of law as to the legal effect of the instruments. The plaintiffs claim a legal title, asserting that these instruments of record are utterly void and without effect, and their right to succeed depends upon such legal title, without regard to any equitr able right under the contract of sale, or any title or interest that may be asserted by the defendants. It is conceded, if the plaintiffs have not a legal title to the property claimed by them, they have no right at all.

But, without further considering, and without deeming it necessary to decide, this preliminaty or jurisdictional question, we shall proceed to consider the questions arising upon the merits of the case ; and these questions are:

ist. 'Whether the power of attorney of the 23d of May, 1859, made and executed by Robert Ransom and Mary H. Ransom, his wife, to George Gibson Huntt, and which remained unrevoked by any express act or declaration of the principals, invested the nominated attorney with such legal authority as to enable him to bargain and sell, and therer upon to convey, or to contract to convey, by deed of bargain and sale, the property therein mentioned and referred to ?

2d. If the power was valid and enabled the attorney to bargain and sell the property at the time it was made, whether the subsequent occurrence of the civil war, and the principals going into the seceded States, and remaining there during the war, and the husband becoming an active participant in the war against the Union, had the effect to revoke and render null the power of attorney, and thereby to destroy all authority previously vested in George G. Huntt to deal with the property of his principals?

3d. But, supposing the power of attorney to be valid, and that it remained valid, notwithstanding the occurrence of the war, was the deed of the 29th of November, 1864, an effective execution of the power, or authorized thereby, so as to vest in the purchaser of the property a title, either legal or equitable ?

4th. If the deed made under the power was not valid as a deed of conveyance by the then existing law, was it cured and made valid by the act of Congress of March 3, 1865, entitled “ An act to quiet titles in favor of parties in actual possession of land in the District of Columbia?”

5th. If this act of 1865 does not apply, and the deed made by the attorney of the 29th of November, 1864, does not operate as a conveyance of the legal title, is there such equity in the defence, and on the facts of the case, as will bar and preclude the relief sought by the plaintiffs ?

1. With respect to the first of these questions, it is doubtless the case, that in most, if not all the States, there are statutes authorizing the wife by joining in deed with her husband, and by separate or privy acknowledgment of the wife, to convey real estate. But whether by statute or otherwise, it has.been the custom in this country from its earliest histoiy, for the wife to convey her real estate by the joint deed of herself and her husband. In most, if not all the States, there have been statutes prescribing certain conditions and formalities for the conveyance of the wife’s real estate; such as the separate acknowledgment from her husband ; such acknowledgment of the deed being regarded as one of the most essential acts to give validity to the deed. And where the prescribed forms have been complied with, the nature and extent of the estate conveyed, and the objects and purposes thereof, are unrestricted ; and the courts have been liberal in supporting the right to convey. Hence a married woman may mortgage as well as unconditionally alienate her real estate, by joining her husband in the conveyance and making the acknowledgment, and this, though no part of the consideration, may pass to her; and thus she may subject her real estate to the risk of complete alienation by foreclosure for her husband’s debts, or by sale under a power of sale therein conferred. It is settled that she may thus create a valid power in the mortgage to sell in default of payment; and so she may convey upon condition ; and prescribe the terms of the condition; and thus greatly depart from the old common law modes and forms of conveyance of femes covert by fines, and common recoveries. 2 Kent. Com. 150, 151, 167; Swan v. Wiswall, 15 Pick. 126; Whiting v. Stevens, 4 Conn. 44; McCullough v. Wilson, 21 Penn. St. 436 ; Black v. Galway, 24 Penn. St. 18 ; Schouler, Hus. and Wife, sec. 176.

At the common law, the conveyance of a feme covert, except by some matter of record, was absolutely void, and in England, until the St. 3 & 4 W. 4, ch. 74, abolishing fines and recoveries, a feme covert could only pass her freehold estate, not held as her separate estate, by fine or common recovery. In Maryland, however, whose laws in force in 1801 were adopted for this District, and are still in force here, except where changed or modified by acts of Congress, the substitution of the ordinary deed of conveyance by the wife for fine or common recovery, was made by the colonial statutes of 1715, ch. 47, 1752, ch. 8, and 1766, ch. 14; and the ceremony of private examination of the feme covert, and her voluntary acknowledgment of the deed, were made substitutes for the private examination as to her voluntary consent in the levying of the fine or recovery.

The act of 1715, ch. 47, after declaring what nature of conveyances should be made, executed and recorded, in order to pass any freehold, or an estate for a term of more than seven years, then provides, that when the grantors or bargainors may live remote from the court or officer required to take the acknowledgment, in the county where the land was situated, such acknowledgment was authorized to be taken where the grantor or bargainor lived; and it is then further provided, that “ if any such grantor or bargainor of any lands or tenements, &c., shall happen to be out of the province, &c., at the time of the ensealing such writing, so as the same cannot be acknowledged, as is before directed, or enrolled within the time «for that purpose hereinbefore limited, that in every such case such lands or tenements as aforesaid shall be acknowledged by a letter of attorney, well and sufficiently proved, &c., anything hereinbefore contained to the contrary thereof notwithstanding.” And, in a succeeding section of the same act, it is provided, “ that if any feme covert be named as grantor in any such writing indented [the indenting is dispensed with by act of 1794, ch. 57], the same shall not be in force to debar her or her heirs, except upon her acknowledgment of the same, and the person taking such acknowledgment shall examine her privately out of the hearing of her husband, whether she doth make her acknowledgment of the same willingly and freely, and without being induced thereto by fear or threats of, or ill usage by her husband, or fear of his displeasure.” This acknowledgment is required to be reduced to writing and certified by the judge or justice taking the same, and it is required to be recorded, and which acknowledgment so made shall bar the feme covert and her heirs. And so by the act of 1766, ch. 14, it is provided that any person or persons conveying land and not living within the province, so that the deed cannot be acknowledged as previously directed, then and in every such case the deed or conveyance shall be acknowledged by letter of attorney, well and sufficiently proved, &c. And in a succeeding section of this last mentioned act, it is provided that any feme covert joining with her husband in any of the several kinds of conveyances thereinbefore mentioned, and acknowledging them upon private examination, according to the form and direction of the previous act of 1715, where such femes covert have the right, title or interest of the lands, or any part thereof, intended to be conveyed, shall, by such execution, examination, acknowledgment and enrolment, be barred and foreclosed to all intents and purposes whatsoever. These provisions of the acts of 1715 and 1766 were in force in this District in 1859, and are still in force, and they were in no respect repealed by or in conflict with the acts of Congress of the 31st of May, 1832, (4 Stat. 520), and of the 20th of April, 1838, (5 Stat. 226), relating to the execution and acknowledgment of deeds for land in the District of Columbia. The acts of Congress do not profess to repeal the acts of Maryland of 1715 and 1766, or to be exclusive in their operation; but they have, in some particulars, not involved here, amplified and extended the provisions of the former statutes then in force. And construing these statutes altogether, and looking to the reason and policy upon which they are founded, it would seem to be clear that in the year 1859 and down to the year 1865, it was competent to a feme covert, by a joint power of attorney with her husband, duly executed and acknowledged according to the forms prescribed by the statute, to execute and acknowledge a valid deed of conveyance of her real estate situate in the District of Columbia. It is well settled that a power to convey land must possess the same requisites, and observe the same solemnities in execution and acknowledgment, as are necessary in a deed directly conveying the land; and that a title to land can only be acquired and lost according to the laws of the place where the land is situated. Clark v. Graham, 6 Wheat. 577. In this case, the property to be conveyed was specifically mentioned and described in the power of attorney ; and the power of attorney was executed and acknowledged at Carlisle, in the State of Pennsylvania, by husband and wife, under their hands and seals, and the acknowledgment and authentication of the instrument was in all respects in accordance with the provisions of the statutes in force in the District of Columbia, providing the manner and form in which the real estate of femes covert could be conveyed. Indeed, we do not understand that the statutory requirement in respect to the form of acknowledgment and authentication thereof, is a matter of objection. The terms of the statutes, “ any grantor or bargainor of any lands or tenements,” being out of the province ; or “ any person or persons conveying,” &c., not residing in the province at the time, &c., may acknowledge said deed by letter of attorney, well and sufficiently proved, &c., are sufficient to embrace femes covert, authorized to sell and convey their real estate. If not, then the husband could not sell and convey by power of attorney, free of the contingent right of dower of his wife, for if the wife could not acknowledge by power of attorney a deed for the conveyance of her own real estate, she would be equally unable to acknowledge, by power of attorney, a deed for the relinquishment of dower in the lands of her husband. Such disability, we think, was never, intended by the legislatures passing the statutes to which we have referred, to be fixed upon femes covert, having lands with right to convey the same.

But even in the absence of any express statutory authority, for the execution and acknowledgment of a deed of a feme covert by power of attorney, seeing that femes covert have full and complete right to convey their real estate by the joinder of their husbands in the deed, the power to execute and acknowledge deeds of conveyance by power of attorney, jointly executed by husband and wife, with the private examination of and acknowledgment by the wife, as in the case of a deed of conveyance jointly executed by them, would seem to be reasonably implied, and it is difficult to perceive any good reason why it should not be allowed. It certainly subserves the convenience of parties; and we may well suppose, from the frequency of the occurrence of such powers in reported cases, that many titles are dependent upon the existence, of the power of femes covert to make and acknowledge deeds of conveyance by attorney.

That such power exists in femes covert, with general right to convey their real estate, would seem to be the view entertained by writers of high authority. In Story on Agency, sec. 6, the author says — “In regard to married women, ordinarily, they are incapable of appointing an agent or attorney; and even in case of a joint suit at law, an appointment of an attorney by a married woman is void, and her husband may make an attorney for both. But where a married woman is • capable of doing an act, or of transferring property or rights with the assent of her husband, there, perhaps, she may, with the assent of her husband, appoint an agent or attorney to do the same.” And so Professor Washburn, in his work on Real Property, vol. 3, pages 232, 233, says that it is laid down, unqualifiedly, in some of the States that a married woman cannot make a valid power of attorney, even jointly with her husband, to make a deed of her interest. “But,” says the author, “ it is difficult to perceive any reason for the rule where she can do the principal thing herself; and such a right is clearly recognized by statute in Massachusetts ; and a similar right is also recognized by statute in New York.”

The cáse of Holladay v. Daily, 19 Wall. 606, cited and relied on by the plaintiffs, would not seem to have much application to this case, though the principle of implied right in the wife, jointly with her husband, to constitute an attorney to convey her estate, is clearly recognized. In that case, Holladay and his wife gave to one Hughes a power of- attorney to sell and convey certain real property, the title to which was stated in the power to be in Holladay. Hughes sold and conveyed the premises in the name of Holladay alone, and as his attorney. The question presented was whether the deed thus executed in the individual name of Holladay, and not in the joint names of himself and wife, was sufficient to pass his title ; and the court held that it was. In the course of the opinion, the court said — assuming that, without a statute of Colorado, authorizing the making of such power of attorney, “ the authority of a married woman to convey, in connection with her husband, which is conferred, implies a power to appoint an attorney for that purpose — and there are adjudged cases which proceed upon that theory — we do not see any objection to the validity of the deed actually executed in the name' of Holladay alone, or to its operation in passing the title.”

But what is more immediately in point on this question, is the recognition of the right to make such power of attorney, by the act of Congress of March 3, 1865, passed for curing defects and quieting of titles in this District. By that act, the pre-existing right of a married woman, owning land in this District, to appoint an attorney jointly with her husband to convey such land, is expressly recognized, and any defects therein, or in the execution thereof, cured. After enumerating various defects in conveyances intended to be cured by the act, such conveyances are declared valid, provided, “ That when the power of attorney shall have been executed by a feme covert the same shall be effectual and sufficient, if there shall have been such an acknowledgment of the same as would be sufficient, under the provisions of this act, to pass her estate "and interest therein were she a party executing the deed of conveyance,” &c. In this case, as we have already seen, the wife jointly with her husband executed the power of attorney, and she was separately examined from her husband, and made her acknowledgment in due form.

Upon the whole, we are clearly of opinion that the power of attorney was valid and sufficient to enable the attorney therein named to- sell and convey the real estate of the feme covert therein described.

2. The next question is, as to the effect of the civil war upon the power of attorney — whether the power of attorney was thereby revoked, or its execution suspended during the war? This depends upon the nature of the duties to be performed under and in execution of the power. For it is well settled that the occurrence of war between the States or nations to which the respective parties belong does not necessarily annul and destroy all prior contracts subsisting between such parties. It is true, all trade, and private business intercourse, between the citizens or residents of the one belligerent State or nation, with those of the other belligerent State or nation, is illegal and therefore void. But this principle is not so general and extensive as to include all contracts and engagements'entered into before the war. There are some prior contracts that, from their very nature, the subsequent occurrence of war will avoid; but those are contracts that necessarily require intercourse and communication between the citizens of the belligerent States, in order to the due performance of such contracts. In such cases, both upon principles that are universally observed and enforced as between belligerents, and as matter of necessity, the contracts are vacated by the occurrence of war between the States to which the differerent parties belong, because they cannot be performed, consistently with law. But that is not the case here. In this case, as we have already stated, the property, situated here in the city of Washington, was owned and held by parties as tenants in common. It was unimproved, and the question when it could be advantageously sold was, as we may well assume, a matter of great uncertainty. The parties appointing the attorney contemplated an absence, and they made the power without any limitation as to the time of its duration, or the time within which it should be executed. The power recites and declares as follows:

“ To provide for the contingency of our absence, we, the said Robert Ransom, Jr., and Mary, my wife, do by these presents constitute and appoint, and in our place put and depute the said George Gibson Huntt, of Washington City aforesaid, to be our true and lawful attorney in fact, for us and in our name, place and stead, to control, manage, grant, bargain and sell, and, in that event, convey all our right, title and interest in and to the said lots and square of ground, or any part or parts thereof, or to join in and for us and in our name to sign any proceedings in partition of the said lots and square, or to appear for us in court for that purpose. And in regard to the said real estate, to do, execute and perform, every act and thing necessary to be done as fully and amply as we might or could do, if personally present. And we do hereby ratify and confirm all and whatsoever our said attorney in fact may legally do in the premises.”

Language more comprehensive and unrestrictive could hardly be employed. And the power could well be executed without any communication or intercourse whatever with the principals making the power. The execution of the power no more required intercourse or communication with the principals than did the exercise of the power of sále in the case of University v. Finch, 18 Wall. 106. In that case the question was as to the execution of the power by a person in whom a trust had been reposed, before the commencement of the war, in regard to real estate, and where the land, the trustee or donee of the power, and the cestui que tntst, were all within a State whose citizens were loyal and supporting the Union, while the grantors in the deed of trust, the donors of the power, were citizens and residents of one of the States declared to be in insurrection at the time of the sale, which was made while the war was flagrant; and it was held that the existence of war did not defeat the execution of the power. The right of an owner of real estate, situate within territory or part of a State over which the United States had unobstructed jurisdiction and control, to appoint an agent and invest him with authority to superintend and manage the estate, though the owner, during the time, resided in one of the insurrectionary States, was recognized in the case of United States v. Lee, 106 U. S. 196; and the principle was fully recognized and clearly stated by Mr. Justice Washington, in the cases of Conn. v. Penn., Pet. C. C. 496, and Dennison v. Imbrie, 3 Wash. C. C. 396. In the case of Buchanan v. Curry, 19 John. 137, it was held by the Supreme Court of New York, that it was not unlawful for a citizen of that State to pay a debt, or perform a contract with an alien enemy, during the war, if the payment or performance was made to the agent of such alien enemy within that State— the contract having been made before the zvar. And if the money so received by the agent be transmitted by him to the principal, without the debtor’s connivance, the latter will not be responsible for it. The three cases last mentioned were all referred to with approval by the Supreme Court of the United States, in the case of Insurance Co. v. Davis, 95 U. S. 425, 429, 432. In the case of Ins. Co. v. Davis, just mentioned, the subject is quite fully discussed, and in considering the effect of war upon a power of attorney made prior to the commencement of hostilities, the court say:

‘ ‘ Emerigon says, that' if a foreigner is forced to depart from one country in consequence of a declaration ‘ of war with his own he may leave a power of attorney to a friend to collect his debts, and even to sue for them. Trait des Assurances, vol. i, 567. But though a power of attorney to collect debts, given under such circumstances, might be valid, it is generally conceded that a power of attorney cannot be given, during the existence of war, by a citizen of one of the belligerent countries resident therein, to a citizen or resident of the other ; for that would be holding intercourse with the enemy, which is forbidden. Perhaps it may be assumed that an agent ante bellwn, who continues to act as such during the war, in the receipt of money or property on behalf of his principal, where it is the manifest interest of the latter that he should do so, as in the collection of rents and other debts, the assent of the principal will be presumed, unless the contrary be shown; but that, where it is against his interest, or would impose upon him some new obligation or burden, his assent will not be presumed, but must be proved, either by his subsequent ratification or in some other manner.”

In this case there is nothing to show in the slightest manner that the principals in the power of attorney were damnified or prejudiced by the execution of the power, or that it was against their interest that the power should be executed by effecting a sale of their interest in the property. On the contrary, under the then existing circumstances, a sale was necessary as a means of realizing anything for their interest in the property. The property was entirely unproductive, being unimproved. It was liable for taxes, and taxes were in arrear; indeed, the undivided interest of the Huntt heirs had been sold for taxes, and bought in by Mr. Tayloe. It was, moreover, subject to confiscation by the Government to the extent of the life interest therein of General Ransom, the husband; and it was the right of the other parties in interest to have partition of the property, and to have their respective interests reduced to severalty, if not to have a sale for purposes of partition. Willard v. Willard, 145 U. S. 120. And the fact that the principals in the power of attorney were absent and within the Confederate lines would not have prevented effective proceedings for that purpose (University v. Finch, 18 Wall. 106) ; so that they were unable to retain their interest • in the property in its original undivided condition. It was, therefore, rather to the interest of Ransom and wife than otherwise, that their interest in the property should be sold. In addition to this, there were approval and ratification of the sale by the receipt of the purchase money.

We can perceive no sufficient reason, therefore, for holding that the power was either revoked or suspended by the war, or that its execution by sale of the property was prejudicial to the interest of the principals giving the power.

3. We come now to the question, whether the deed or instrument of the 29th of November, 1864,^* made by the attorney, George Gibson Huntt, to Benjamin Ogle Tayloe, was such deed of bargain and sale of the interest-of Mrs. Ransom and her husband in the property, as to bar and preclude those parties from making further claim thereto. And this presents the question. What is the true nature of the instrument ? Is it a conveyance operating as a grant of the legal estate in prmscnti, or is it only a contract for a further conveyance, contemplating a more formal and effective deed for the conveyance of the legal title ? On the part of the defendants, it is contended that the instrument, though not in the ordinary form, is good and effectual as a deed of bargain and sale. While, on the other hand, it is contended by the plaintiffs, that the instrument is nothing more than a contract for a future conveyance to be executed by the principals in the power of attorney.

It is quite true, it requires no special formality to create a good deed of bargain and sale. If the deed be executed with the requisite solemnity, as prescribed by the statute, and contain words expressive of a present intention to convey and transfer the estate without further ceremony, it will, ordinarily, be sufficient. The conveyance by bargain and sale, as we know, had its origin in the ordinary contract of bargain and sale, enforcible by the court of chancery. The words bargain and sale, however, are not necessary to make it a bargain and-sale, within the statute ; but any words at common law, that upon a valuable consideration would have raised a use, will be sufficient to create a bargain and sale within the Statute of Uses. Gilbert on Uses, 493 ; Tud. Lead. Cas. 265 ; 2 Washb. R. Pro. 392.

The instrument here is executed as a deed, though not in the regular or usual form of a deed of bargain and sale. And while the power is referred to in the body of the instrument, the latter is signed, sealed and acknowledged as the deed or contract of the attorney, and not as that of the principals. The amount of the consideration is mentioned, and the fact of its full payment is recited ; and it is then declared by the attorney executing the deed, that he thereby bargained and sold to said Benj. O. Tayloe, his heirs and assigns, all the right, title and estate of his principals, naming them, in the property described, including square No. 53, the property in controversy. The instrument then concludes in these terms : ‘ ‘ And I hereby further agree in behalf of said Robert and Mary Ransom, that they shall and will, as soon as .convenient, make and execute a proper deed of conveyance of said premises to said Benj. O. Tayloe, in fee-simple.”

In our opinion this instrument has not the effect of a completed bargain and sale to convey the legal title to the property. Though it contains language sufficient to convey an estate in prcesenti, yet, when taken in its entirety, it is very manifest that a further and more formal conveyance was contemplated. It would seem to be fully embraced by the principle of the cases of Jackson v. Moncrief, 5 Wend. 26; Gray v. Packer, 4 W. & Sergt. 17, and Ogden v. Brown, 33 Penn. St. 247, cited and relied on by the plaintiffs. However, the making the sale, the receipt of the purchase money, and the making and executing the deed or contract of sale, were acts fully within the scope of and authorized by the power of attorney, and were such acts as the parties had stipulated to ratify and confirm. Whether such contract could have been enforced as against the wife, either at law or in equity, is not the question presented in this case, and we therefore express no opinion upon that subject. On an application by the purchaser for the enforcement of the contract, questions quite different from those presented in this case would arise.

4. It is next contended, on the part of the defendants, that, whatever defect or imperfection may have originally existed in the instrument of the 29th of November, 1864, as an instrument of conveyance, that defect or imperfection was rectified and removed by the curative act of Congress of March 3, 1865, referred to in a previous part of this opinion. But in this contention we cannot concur. That act, by its terms, can only apply to and cure instruments intended as conveyances, and where the title was intended to pass, or was supposed to have passed, but the instruments proved to be defective or insufficient in the particulars specified: If was not intended to apply to an executory instrument or contract like that of the 29th of November, 1864. It was not intended to convert a mere contract of sale and purchase, having the effect to vest in the purchaser a mere equitable estate, into a legal conveyance, to transfer and vest in the purchaser the legal title to the estate. There is no provision in the act, that, by fair construction, can be made to apply to this instrument, and so far change its character as to make it effective to convey the legal estate in the property.

5. Lastly, however, the instrument, and the sale evidenced thereby, have effect, by operation of the settled principles of equity, to vest in the purchaser an equitable interest or estate. The instrument itself is inchoate or incomplete as a conveyance, and did not divest the owners and vendors of the legal title; but the bargain and sale, upon which the purchase money was paid, created an equitable estate, which a court of equity will not divest out of the vendee, in the absence of fraud. It is neither alleged, nor shown in proof by the plaintiffs, that there was fraud in the sale to Tayloe, or that the sale, at the time it was made, was for a price greatly inadequate; nor is it alleged or pretended that the purchase money was not fully paid by the purchaser, as recited in the contract; and the proof shows that the purchase money was paid over to Mrs. Ransom herself. And though Mrs. Ransom, after the close of the war, was in Washington, it is not shown that she ever objected to the sale, or that any person ever objected for her during her life. In such state of case, a court of equity liiill not be active in setting aside or vacating the sale. This is an application invoking the active interposition of a court of equity, in behalf of parties whose ancestor, under whom they claim, authorized the sale and received the purchase money, not only to annul the sale, but to oust those claiming under the bona fide vendee from the possession of the premises sold, after the lapse of more than a quarter of a century, and after the property has greatly enhanced in value, and the entire square been greatly improved, so as to make the present value of the entire square, according to the testimony, to be about $250,000.

In the case of Mestaer v. Gillespie, 11 Ves. 621, 624, Lord Chancellor Eldon states a principle that would seem to apply to this case. His lordship, in the course of an opinion, discussing fully the doctrine of equity as applied to bargain and sale, said: “ In the case, for instance, of a conveyance by bargain and sale, which cannot be complete as a legal conveyance without enrolment, under Stat. 27 Hen. 8, ch. 16, yet that very instrument, only inchoate, and not complete to pass the property, is in this court evidence of an agreement to convey; and the conscience is bound to make further assurance; that obligation arising from the payment of the money.”

In this case, the attorney was held out by the power signed and duly acknowledged by Mrs. Ransom, jointly with her husband, as competent to sell and convey the property; and having sold and received the money, the parties ought in equity and good conscience to be estopped from questioning the sale, in the absence of fraud ; and if Mrs. Ransom was estopped, those claiming under her are equally so. In the bill, asking the court to declare both" the power of attorney and the contract of sale null and void, without the allegation of fraud, there is neither the proffer to refund the purchase money received, the many years of taxes paid, nor to allow for any proportionate part of the value of lasting improvements placed upon the property. The case would seem to be fully embraced by the general equitable principle well established, and which is clearly stated by Mr. Justice Story, in his work on Equity Jurisprudence, vol. I, sec. 385, where the author says: “ In cases where one of two innocent persons must suffer a loss, and, a fortiori, in cases, where pne has misled the other, he, .who is the cause or occasion of that confidence, by which the loss has been caused or occasioned, ought to bear it. Indeed, cases of this sort are viewed with so much disfavor by courts of equity, that neither infancy nor coverture will constitute any excuse for the party guilty of the concealment or misrepresentation; for neither infants nor femes covert are privileged to practice deceptions or cheats on other innocent persons.” And the learned author cites many authorities in support of the principle thus stated in his text.

This general principle of equity has been applied to various states of fact; and the Supreme Court of the United States have applied and enforced it in cases where the equity against alleged claims and supposed rights of married women, was certainly not stronger, or more manifest, than in the present case. The cases of Bank v. Partee, 99 U. S. 329, and Bein v. Heath, 6 How. 228, are instances, and furnish fair illustrations of the application of this general principle of equity as against the alleged claims and supposed rights of married women.

We are of opinion that the decree of the court below, dismissing the bill, was correct, and should be affirmed; and it is so ordered.

Decree affirmed.

* Deed. Know all men by these presents, that I, George Gibson Huntt, by virtue of the annexed power of attorney to me from Robert Ransom, Jr., and Mary Ransom, his wife, and for and in consideration of the sum of eight hundred and thirty-three 33-100 dollars to me in hand paid by Benjamin Ogle Tayloe, of the city of Washington, in the District of Columbia, receipt of which is hereby acknowledged-, have bargained and sold to said B. O. Tayloe, his heirs and assigns, all the right, title and estate of them, the said Robert Ransom, Jr., and Mary Ransom, being one undivided third part of, in, and to these pieces of ground in the city of Washington aforesaid, known and described, as lots Nos. one and three in square No. five, lot No. ten in square No. fourteen, lots Nos. five and nine in square No. seventeen, lots Nos. three and four in square No. twenty-eight, lot No. three in square No. thirty and the whole of square No. fifty-three, with the improvements and appurtenances; and I hereby further agree in behalf of said Robert and Mary Ransom, that they shall and will, as soon as convenient, make and execute a proper deed of conveyance of said premises to said Benj’n O. Tayloe, in fee simple.

In testimony whereof, I have hereunto set my hand and seal this 29th day of November, A. D. 1864. George Gibson Huntt. [Seal]. [Stamp, $1. G. G. H. Jan. 4th, ’65]. Witness: W. Kline.