Ashley v. Bird

• Decision Date: 31 May 1826
• Parties: ASHLEY AND RECTOR, EXECUTORS OF RECTOR, v. BIRD.
• Court: Missouri Supreme Court

1 Mo. 640

ASHLEY AND RECTOR, EXECUTORS OF RECTOR,

v.BIRD.

Supreme Court of Missouri.

May Term, 1826.

MCGIRK, C. J.

This was an action of assumpsit, for money had and received. The declaration charges that defendant received of the intestate in his life-time certain sums of money, to the use of the intestate, &c.

The first plea is non-assumpsit; the second, payment on the first day of June. in the year 1822. Issue is taken on the first plea, and it is found for plaintiff. To the second plea, there is a replication, that the defendant did not, on the first of June, 1822, pay said sum of money. This plea is found for the plaintiff also. Judgment was entered for the plaintiff; to reverse which, the cause is brought to this court.

By the bill of exceptions, it appears that the defendant, Bird, in the year 1819, made the following instrument in writing: “Be it known, to whom it shall concern, that I, Thompson Bird, by virtue of a power of attorney, from Abraham Bird, of Baton Rouge, have sold to Elias Rector, of St. Louis, the one-half of the ground located by virtue of a New Madrid certificate, No. 379, for 640 acres, dated June 19th, 1810, and located to embrace the whole of fractional section 28 and 21, and as much of the east half of section 29, T. No. 57, north of the base line, range No. 4, west of the 5th principal meridian, as will include the said quantity of 640 acres, for the sum of nine hundred and sixty dollars. In consideration of which, I, the said Thompson Bird, do hereby bind the said Abraham Bird, to make a good and sufficient deed of general warranty, to the said Elias Rector, for the said one-half of six hundred and forty acres, as soon as the patent for the same can be obtained from theUnited States, and at all events, within fifteen months from this date. In witness, I, the said Thompson Bird, have hereunto set the hand and seal of the said Abraham Bird.

ABRAHAM BIRD, (Seal).”

Thompson Bird claimed to be the attorney in fact of Abraham Bird, under the following power of attorney, to-wit:

“BATON ROUGE, February 6th, 1816.

Know all men whom it may concern, that I, Abraham Bird, do nominate and appoint Thompson Bird, as my true and lawful attorney, to act in all my business, in all concerns, as if I was present myself, and to stand good in law, in all my land and other business in the Missouri Territory: this I acknowledge to be my full power invested in him, as witness my hand and seal, this day and date, &c.

ABRAHAM BIRD, (Seal).”

In this case, there are many errors assigned, chiefly growing out of the effect of this power of attorney. We will not notice the errors, in the order in which they have been assigned, but will notice three points in this case only. The first, did this power of attorney authorize Thompson Bird to sell land, or to make a covenant for the sale/so as to bind his principal; and if it did not, what is the consequence? Secondly, can the power of attorney be helped out by parol of testimony, so as to enlarge its effect, over and above the effect apparent on the power itself? Thirdly, was the issue on the plea of payment immaterial? All other points in this case are subordinate to these three, and are, substantially contained in them. As to the first point, he have not seen an adjudged case like it. The rule of law is, that naked power, without an interest coupled therewith, is to be strictly pursued. The rules, however, of arriving at the quantity of power granted, are the same as would prevail in the construction of any other deed, namely, most strict against the grantor, where words are ambiguous in themselves;...