Cooper v. Cooper

• Decision Date: 20 October 1921
• Docket Number: 7 Div. 172.
• Citation: 206 Ala. 519,91 So. 82
• Parties: COOPER ET AL. v. COOPER ET AL.
• Court: Alabama Supreme Court

91 So. 82

206 Ala. 519

COOPER ET AL. v. COOPER ET AL.

7 Div. 172.

Supreme Court of Alabama

October 20, 1921

Appeal from Circuit Court, De Kalb County; W. W. Harralson, Judge.

Ejectment by John F. Cooper and others against Joseph Cooper and others. Judgment for the plaintiffs for part of the land, and for the defendants for part of the land, and plaintiffs appeal. Affirmed.

J Wylie Logan, of Birmingham, for appellants.

J. A and Joseph Cooper, pro se.

THOMAS J.

The action, in the nature of ejectment, resulted in a judgment in favor of plaintiffs for an undivided five-eighths interest in the land sued for, and in favor of fendants for an undivided three-eighths interest therein. The appeal was only taken by plaintiffs.

Appellees did not take a cross-appeal, and may not assign error upon the record without appellants' consent or joinder in appellees' assignment of error. Code, §§ 2837, 2838; rule 3, S.Ct. Prac. Code, p. 1507. The attempted assignment of error by appellees is not considered in the absence of appellants' consent.

"When there are cross-appeals in the same cause, there shall be but one transcript, upon which each appellant may assign errors. If the appeal be taken by the party or parties on one side only, the appellee can only assign errors upon the record brought up by the appellant, by consent of the appellant in writing indorsed on the transcript, or a joinder by the appellant in such assignment of errors. When such assignment and joinder are made, the clerk shall docket the case, as if an appeal had been taken by such appellee; and the transcript shall be a part of the record in the case wherein errors are thus assigned by the appellee, as well as in the original case; and the case in which the appellee thus assigns error shall, in all respects, be regarded as a case on appeal taken by him." Rule 3, S.Ct. Prac. Code, p. 1507; Golden v. Golden, 102 Ala. 353, 14 So. 638; Page v. Francis, 97 Ala. 379, 11 So. 736; Ketchum v. Creagh, 53 Ala. 224; Kirksey v. Hardaway, 41 Ala. 330.

The appellees' assignment of error is not treated as effective in appellants' brief, disclosing a consent that such assignment of error be considered. Patten v. Swope, 204 Ala. 169, 85 So. 513; Johnson v. L. & N. R. Co., 204 Ala. 662, 87 So. 158.

Mrs. Chaney, as a witness for defendants, having testified that she was a "one-eighths heir of the land of the estate of William Cooper, deceased," the common source of title, and had executed the power of attorney to J. B. Cooper and W. K. Cooper theretofore introduced in evidence by plaintiffs, was shown "a paper purporting to be a cancellation" of her said power of attorney, and testified that she so revoked said power of attorney. Thereupon plaintiffs offered in evidence said revocation, and the court reserved ruling on plaintiffs' objections thereto. The transcript does not specifically declare that the court later excluded it or ruled upon its admissibility. However, it is in evidence that she had revoked the power of attorney, and by the writing offered in evidence, which was, or should have been, admitted in evidence on proper predicate for its introduction. Thereafter the court admitted in evidence the deed of Mrs. Chaney to Joseph Cooper, dated August 16, 1913, and that of J. A. Cooper to Joseph Cooper dated July 30, 1913. The objections of plaintiffs to introduction in evidence of such revocation and conveyances were that the same are illegal, incompetent, and it was not shown that the contents of the instruments were communicated to or known by said attorneys in fact at the time of their execution, or attempted execution, of the power by conveyance of the lands to Francis Cooper on August 13, 1913. The bill of exceptions is not entirely clear as to the exact date of the delivery of the conveyance. The testimony of J. B. Cooper was that the land "did not sell on February 15, 1913," the date on which defendants aver in their pleading Joseph Cooper purchased same at public outcry from and by J. B. Cooper and W. K. Cooper, the attorneys in fact for certain of the joint tenants. On the question of the sale, a material and relevant fact, the bill of exceptions is silent.

At this juncture it is well to consider written "powers of attorney" to convey land or do some other act in the name of his principal, sometimes called common-law powers. By the execution of such "powers of attorney" the title to the land passes by the conveyance made, by reason "of the fiction that it is the conveyance of the principal," and is effective "only by reason of the fact that the principal, the donor of the power, retains the title to the land until the execution of the conveyance" by his agent. 1 Tiffany, Real Prop. (2d Ed.) p. 1043. The right and power of revocation by the principal, which may be exercised at pleasure (Story on Agency [9th Ed.], §§ 462, 476) is "based on the theory that one making a conveyance of land may create an executory interest in favor of himself as well as in favor of another" (1 Tiffany, p. 1049), unless the power be coupled with an interest in the land or founded on a valuable consideration, or is part of a security, where such power is irrevocable whether so expressed or not (Cronin v. Am. Sec. Co., 163 Ala. 533, 50 So. 915, 136 Am. St. Rep. 88; Chambers v. Seay, 73 Ala. 372; Story's Agency, § 477 et seq.; 110 Am. St. Rep. 856; 8 Eng. Rul. Cas. 593-595).

In short, the termination of the relation of such agency may take place (a) by agreement, when the agency is limited to some definite object or for some specified time; (b) by the act of the principal or agent; and (c) by operation of law. If by the acts of a party, it is where there is revocation by the principal, or a renunciation by the agent. Termination by operation of law takes place by efflux of time or by the expiration of the period, or by the occurrence of the event to which it was limited, or by change of state or condition of the principal or agent (bankruptcy, insanity, etc.), or by the death of either party, or by the "natural cessation of the power, in consequence of the extinction of the subject-matter, or of the principal's power over it, or by the complete execution of the power." Story's Agency (9th Ed.) § 462, p. 579 et seq.; Hall v. Wright, Ellis, Blackburn & Ellis (Eng. Comm. R.) 746, 749; Freeman's Notes to 47 Am. Dec. 343; 7 Notes on Am. Dec. 250; 110 Am. St. Rep. 858, 863. The termination of such agency may be considered under (1) the right of revocation; (2) the manner of revocation; and (3) the notice necessary to make the same effective, (a) as to the agent, and (b) as to third persons dealing with such agent.

Under his discussion of termination of an agency, Mr. Mechem (volume 1 [2d. Ed.] §§ 613, 614, 616, 623) observed the manner of revocation by the principal that it may be done by solemn instrument under seal or by an informal writing not under seal, or by public and formal announcement or proclamation, or by simple and private declaration, or may be inferred or implied from the circumstances. Story, p. 586. What circumstances will or will not amount to revocation or notice thereof by implication cannot be stated with certainty, and must depend upon the facts of the case. The mode to be adopted and deemed sufficient is to be determined largely "by considering the object with which an authority is revoked," whether the revocation was coextensive with the degree to which, by length of time or widespread operations or publicity of appointment, the knowledge of the authority has been disseminated and adapted to the particular means by which dissemination was effected-by acts amounting to a revocation, expressed or implied, consistent with the particular facts of the case. 110 Am. St. Rep. p. 863; Stark v. Starr, 94 U.S. 477, 24 L.Ed. 276. A revocation under seal of a power to sell and convey land-a naked power not coupled with an interest or part of the security-may be made at any time before the sale is made, and is not necessary even where the authority was conferred by deed; and a parol revocation will suffice ( Copeland v. Merc. Inc. Co., 6 Pick. [Mass.] 198); particularly so when the seal upon the power to be revoked was superfluous and not required by law. Code, § 3356; Brookshire v. Brookshire, 30 N.C. 74, 47 Am. Dec. 341, 345. See U.S. v. Jarvis, Dav. 274, 287, Fed. Cas. No. 15,468; Henderson v. Hydraulic Works, 9 Phila. (Pa.) 100; 2 C.J. 538; 21 R. C. L. 886.

In order to render effectual the termination of authority by the act of the principal, notice of it must, as a general rule be given to those parties who are to be affected by it; and these parties are the agent himself (as affecting the power to act or his right of compensation) and those who, from knowledge of his authority, or previous dealings with him, would be likely to deal with him in good faith in ignorance of the termination of the agency and upon the strength of previous authority. This is another application of the maxim of the law that, where one of two innocent persons must suffer, he shall suffer who by his confidence or silence or conduct has misled the other. Sou. St. Fire Ins. Co. v. Kronenberg, 199 Ala. 164, 74 So. 63. If the notice of revocation to the agent is given by letter, as affecting his right of compensation, it takes effect from the time the agent receives it, and not from the time it was mailed. Sayre v. Wilson, 86 Ala. 151, 158, 5 So. 157; Robertson v. Cloud, 47 Miss. 208. As affecting the rights of third persons, the acts of a former agent within the scope of his original authority will, notwithstanding its revocation, continue to bind the former principal to those third parties to whom the agent has been thus accredited, and who deal with him in good faith in justifiable reliance on his former...