Costello v. Graham

• Decision Date: 30 March 1905
• Docket Number: Civil 896
• Citation: 80 P. 336,9 Ariz. 257
• Parties: MARTIN COSTELLO, Defendant and Appellant, v. B. F. GRAHAM et al., Plaintiffs and Appellees
• Court: Arizona Supreme Court

80 P. 336

9 Ariz. 257

MARTIN COSTELLO, Defendant and Appellant, v. B. F. GRAHAM et al., Plaintiffs and Appellees

Civil No. 896

Supreme Court of Arizona

March 30, 1905

APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Cochise. Fletcher M. Doan Judge. Affirmed.

The facts are stated in the opinion.

Ben Goodrich, for Appellant.

The power to English was special, and did not authorize him to bind his principal, Greene, by recitals in the deed to De Rhodes which were not necessary to the conveyance of the property. The only evidence whatever that Costello ever had any notice that Greene had conveyed the whole of the claims to De Rhodes is the recital in the deed made by English as attorney in fact, to De Rhodes, in the following language "All his right, title, and interest, being an undivided one half of," etc.

The court found as a matter of fact that these recitals were constructive notice to Costello that De Rhodes owned the whole title, and that therefore Costello was not an innocent purchaser for value without notice. The power of attorney from Greene to English did not in terms authorize him to make any recitals whatever; the only authority he had was to sell the property, and no recitals that he could make would bind his principal, for the plain reason that he had no authority to make them.

A purchaser under a power must take notice of the limitations therein contained at his peril. Ingersoll v Truebody, 40 Cal. 610; Osborne v. Endicott, 6 Cal. 153, 65 Am. Dec. 498; Chaffee v. Brown, 109 Cal. 220, 41 P. 1028; Dight v. Chapman, 44 Or. 265 75 P. 589, 65 L.R.A. 793; Distilled Spirits, 11 Wall. 356, 20 L.Ed. 167; Fidelity etc. Co. v. Courtney, 186 U.S. 362, 46 L.Ed. 1193, 22 S.Ct. 833.

Street & Alexander, for Appellees.

The power of attorney was acknowledged in a way and with the fullness that entitled it to a place upon the records in Arizona Territory and entitled it to be admitted as evidence in this case. It meets the requirements of the statutes of Arizona. Act No. 37, Laws Ariz. 1903. But even if it did not, the acknowledgment was sufficiently good to allow the instrument to be admitted as evidence, for it is settled that a substantial compliance with the statute is sufficient. And as it was said by the supreme court of Texas in the case of Butler v. Brown, 77 Tex. 342, 14 S.W. 136, "The omission from a certificate of acknowledgment of the statement that the deed 'was executed for the purposes therein expressed' is not a fatal defect," -- and then cited the case of Monroe v. Arledge, 23 Tex. 478, which lays down the doctrine that a literal compliance with the statute is not required in authenticating written instruments of record. That case is approved in Muller v. Boone, 63 Tex. 93; Talbert v. Dull, 70 Tex. 675, 8 S.W. 530; Gray v. Koffman, 82 Tex. 68, 17 S.W. 513. Further citations: Belcher v. Weaver, 46 Tex. 293, 26 Am. Rep. 271; Livingstone v. Kettellee, 1 Gilm. 116, 41 Am. Dec. 166.

A deed purporting to convey the whole title estops the grantor and those claiming under him as to further assertion of the legal title. That a deed is to be so construed as, if possible, to give effect to it as a conveyance; and if it contains a clause which is repugnant to the general intention of the deed, this clause is void. Wilcoxson v. Sprague, 51 Cal. 640; McLennan v. McDonnell, 78 Cal. 273, 20 P. 566; Dodge v. Walley, 22 Cal. 224, 83 Am. Dec. 61; Hobbs v. Payson, 85 Me. 498, 27 A. 519; Maker v. Lazelle, 83 Me. 562, 23 Am. St. Rep. 795, 22 A. 474; Hathorn v. Hinds, 69 Me. 326; Brunswick Savings Inst. v. Crossman, 76 Me. 577; Brown v. Heard, 85 Me. 294, 27 A. 182; Green Bay etc. Canal Co. v. Hewitt, 55 Wis. 96, 42 Am. Rep. 701.

Appellant argues that he bought without notice of Reilly's equity. The plain answer to that is that the deeds through English and De Rhodes and Smith gave him notice, -- 1. That Greene had conveyed all his interest and had nothing left, whether that be a whole interest or a half-interest; and 2. That if by any possibility it should be construed that the conveyances only conveyed a half-interest, then he was informed by the deeds and by the record that there was another half-interest out and not yet remaining in Greene. The doctrine of estoppel is that when the principal is estopped that all holding under him and in privity with him are estopped. A deed purporting to convey the whole title estops the grantor and those claiming under him as to further assertion of the legal or equitable title. Carter v. Doe, 21 Ala. 72; Stanley v. Green, 12 Cal. 148; Allyn v. Schultz, 5 Ariz. 152, 48 P. 960; Campbell v. Shivers, 1 Ariz. 161, 25 P. 540.

OPINION

SLOAN, J.

-- Appellees, B. F. Graham and R. L. Benton, brought this action in the court below against the appellant, Martin Costello, to quiet title to an undivided one-half interest in seven mining claims situated in the Warren Mining District, Cochise County, Arizona, and known as the Ocatea, Horseshoe, Mascot Greene Valley, Little Mary, Little Elsie, and June Bird mining claims. Costello, in his answer, pleaded by way of cross-complaint that he was the owner of an undivided one-half interest in and to said claims by purchase from one Joseph W. Greene, from whom the plaintiffs claimed title as grantees, and prayed that his title be quieted as against said plaintiffs. The facts, as shown by the records, are these: The claims, the title to which is in controversy, were located by one Joseph W. Greene. At the time of the location of the claims by Greene he entered into a verbal agreement with one James Reilly in which he agreed to give said Reilly a one-half interest in the claims in consideration for the help Reilly was to give him in locating the claims and doing the discovery work and keeping up and doing the annual assessment work. Greene agreed to contribute as his share of the latter the sum of two hundred and fifty dollars annually. Under this agreement Reilly did the annual work on each of the claims agreed to be done by him for the years 1899, 1900, 1901, and 1902. No deed of conveyance was made by Greene to Reilly for the one-half interest the latter was to get in consideration of his work. On the seventeenth day of November, 1902, Greene executed a power of attorney to one Allen R. English. The empowering clause of the power of attorney read: "I, Joseph W. Greene, of Boston, in the county of Suffolk, and commonwealth of Massachusetts, hereby constitute and appoint Allen R. English, of Tombstone, Arizona, my true and lawful attorney, for me and in my name and stead, to negotiate, bargain and sell, for cash, all my right, title and interest which I am now possessed of in certain mining claims and properties, located in Bisbee, in the Warren Mining District in Arizona." This power of attorney was acknowledged in the following form: "Commonwealth of Massachusetts, Suffolk -- ss. Boston, November 17, 1902. Then personally appeared the above named Joseph W. Greene and acknowledged this instrument to be his free act and deed, before me. Albert M. Crowe, Notary Public. [Seal.]" The power of attorney was recorded in the office of the county recorder of Cochise County, November 2, 1902. On November 19, 1902, a conveyance was made by English, as attorney in fact for Greene, to one J. E. De Rhodes. The granting clause in this instrument read: "Does bargain, sell, release and forever quitclaim unto the said party of the second part, his heirs and assigns, all his right, title and interest, being an undivided one half of the following mentioned and described mining claims." The mining claims...