Britt v. Gordon

Decision Date11 July 1906
Citation108 N.W. 319,132 Iowa 431
PartiesELIZABETH BRITT v. MICHAEL GORDON, ET AL., Appellees
CourtIowa Supreme Court

REHEARING DENIED, WEDNESDAY, NOVEMBER 21, 1906.

Appeal from Fremont District Court.--HON. O. D. WHEELER, Judge.

SUIT in equity for the partition of 100 acres of land. Plaintiff claims to own one-third thereof as widow of Richard Britt deceased, and defendants claim to own all of it in virtue of a conveyance to Michael Gordon by Richard Britt through his attorney in fact, James Britt, of date April 20, 1872. The trial court dismissed plaintiff's petition, and she appeals.--Affirmed.

Decree affirmed.

F. E Hammond and Eaton & Estes, for appellant.

T. S Stevens, for appellees.

OPINION

DEEMER, J.

Some time in the year 1869, appellant's husband, then a single man, acquired title to the land in controversy. July 6th of that year, one James Britt, a brother of Richard, executed in his own name a title bond for the land, in which he personally agreed to convey the same to Michael Gordon five years from the date thereof, upon payment of $ 500 in cash and $ 500 five years thereafter, which deferred payment was evidenced by a promissory note of said Gordon, made payable to James Britt. Part of the land therein described was, according to the bond, "a tract purchased by James Britt of William McCracken." Thereafter and on December 9, 1869, Richard Britt, who at all times material to our inquiries was a non-resident of the State, executed a power of attorney to James Britt, authorizing him (James) to enter into and take possession of the land in controversy, to grant bargain and sell the same, to execute and acknowledge deeds therefor, to demand, receive, and recover all money which should become due and owing by means of such sale, and to take all lawful means for the recovery thereof, fully ratifying and confirming all that his said attorney should do or cause to be done in virtue of the power conferred. This was recorded April 29, 1872. Richard Britt was married to plaintiff September 21, 1871, and at that time the record title to the land was in Richard Britt. On April 20, 1872, Richard Britt, through his attorney in fact, James Britt, conveyed the land by warranty deed to Michael Gordon. Gordon went into the possession of the land under his title bond in the year 1871, and thereafter paid all taxes thereon, and since that time has received the rents and profits from the land, claiming at all times to be the owner of the entire title and estate. Richard Britt died intestate January 24, 1892, leaving plaintiff as his surviving widow. She had never been in Freemont county, Iowa, down to the time of her husband's death, and did not know of his ownership of land in this State until a few months before the beginning of this action. There is no evidence whatever that Richard Britt ever knew of the execution of the title bond or of the warranty deed, and there is no evidence that he personally ever received any part of the consideration for the deed. Neither Gordon nor the person representing him in the transactions ever knew that there was such a person as Richard Britt, until he received the deed from his attorney in fact, James Britt, who always acted as if he were the owner of the land. The title bond was recorded July 8, 1869, and, as we have said, Gordon moved onto the land in virtue thereof in March, 1871, which was some six months before plaintiff's marriage, and something like fifteen months after the power of attorney was executed, although it was not recorded until April, 1872. The lands were taxed in the name of Richard Britt down to and including the year 1872, although Gordon paid the taxes after securing the title bond. James Britt left Fremont county about the year 1869, and the last payment for the land was made to one Calhoun, who lived at Nebraska City, Neb., who undertook to and did secure the return of the note to James Britt, and a warranty deed for the premises from Richard Britt by James Britt, his attorney in fact. Going to the county records, defendants' chain of title is through a deed executed by Richard Britt by his attorney in fact under date of April 20, 1872, and a power of attorney from Richard Britt to James Britt under date December 9, 1869, but recorded April 29, 1872. Plaintiff was married September 21, 1871, was never divorced, and survived her husband (Richard).

Under this showing it is clear that presumptively, at least, she is entitled to one-third of the land because she made no relinquishment of her dower interest therein, which attached inchoately at least on the date of her marriage. Defendants' reliance is on the title bond, through which they claim to have received their title, and, if this was authorized or ratified by Richard Britt before his marriage to plaintiff, then she can make no claim to the land. We have set out all the material testimony in the case bearing upon this question, and it is apparent that the title bond was not made in the name of Richard Britt, and that, so far as shown, James Britt had no authority whatever to make it. He did not assume to be acting for Richard, but for himself, and he describes some of the land as belonging to himself. The obligee in the bond did not know there was such a person as Richard Britt, and never heard of him until about the time he received his deed for the land. The power of attorney makes no reference whatever to the title bond, does not recognize or indorse it, but simply gives the appointee therein power to act in the future, and ratifies all that he (the attorney) might thereafter do under the power so conferred. There is absolutely no evidence that Richard Britt ever heard of the title bond, or that he ever received any part of the money realized thereon, or subsequently paid on the note given at the time the bond was executed. By taking the money on that note through his attorney he undoubtedly ratified the transaction, but this was long after his marriage, and cannot be held to relate back so as to prejudice appellant, who was then his wife.

Two things are relied upon by appellees as showing ratification of the title bond before plaintiff's marriage to Richard Britt; one the execution of the power of attorney itself to the man who had undertaken to make the sale, and the other the conduct of the attorney, under the power after he received it, and before plaintiff's marriage. As to the first proposition, there being no evidence whatever that Richard Britt ever knew of the title bond until long after his marriage to plaintiff, he did not, of course, ratify the title bond by making the power of attorney. Ratification must be based upon knowledge. Without knowledge there can be no ratification. The language of the power of attorney itself indicates that he had no knowledge, or that, if he had, he did not intend to ratify the title bond, for, if that had been his intent, he would undoubtedly have so said. So that, if we are to resort to inferences, we must presume that Richard knew nothing of the title bond until after his marriage to plaintiff. Of course, the knowledge which James Britt had before the execution of the power of attorney cannot be imputed to Richard Britt, at the time he executed the power, for there is no evidence whatever that James was his agent, and, moreover, James did not in making the title bond assume to be acting as agent. So that the making of the power of attorney to one who alone had knowledge of what had theretofore transpired with reference to the title bond could not under the peculiar circumstances of this case be held to amount to a ratification. This is hornbook law, and we need only cite in its support McLaren v. Hall, 26 Iowa 297; Curts v. Scoles, 1 Iowa 471; Walsh v. St. Paul Co., 39 Minn. 23 (38 N.W. 631); Eggleston v. Mason, 84 Iowa 630, 51 N.W. 1; Waughtal v. Kane, 108 Iowa 268, 79 N.W. 91; Hakes v. Myrick, 69 Iowa 189, 28 N.W. 575; Mathews v. Gilliss, 1 Iowa 242; Milliken v. Coombs, 1 Me. 343 (10 Am. Dec. 70); Moore v. Lockett, 2 Bibb 67 (4 Am. Dec. 683); McCracken v. San Francisco, 16 Cal. 591; Haynes v. Seachrest, 13 Iowa 455; Reese v. Medlock, 27 Tex. 120 (84 Am. Dec. 611); Hamlin v. Sears, 82 N.Y. 327; Bank v. Gifford, 47 Iowa 575; Trudo v. Anderson, 10 Mich. 357 (81 Am. Dec. 795); 1 Livermore on Agency, 50, and cases cited; Fairfield Bank v. Chase, 72 Me. 226 (39 Am. Rep. 319).

As to ratification by the attorney after he received the power and before plaintiff's marriage.

There is no evidence whatever that James Britt did anything after he received this power of attorney, and before plaintiff married Richard. He left the county very shortly after he received the power, and had nothing more to do with the land so far as shown, until he made the deed in 1872. Gordon did not take possession until after he (James) had left the county, which possession was taken some seven months before plaintiff's marriage. Neither plaintiff, Richard Britt, nor his agent, so far as shown, ever personally knew that Gordon had taken possession under the title bond. True, the attorney had $ 500 of Gordon's money, which he received in virtue of his own title bond; but it does not appear what became of this. Surely his retention of the money under a sale of his own, made prior to the execution of the power of attorney, should not in itself be held to be a ratification binding upon plaintiff's husband. Aside from the retention of the money, there is absolutely nothing but silence on the part of the attorney from which to gather an inference of ratification on his part of the title bond. We are at all times, of course, speaking of a ratification before plaintiff's marriage. The money paid James Britt under the title bond has not been traced into the hands of Richard at any...

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