Dayton v. Nell
| Decision Date | 07 May 1890 |
| Citation | 45 N.W. 231,43 Minn. 246 |
| Parties | May I. Dayton v. Maria B. Nell, impleaded, etc |
| Court | Minnesota Supreme Court |
Appeal by plaintiff from a judgment of the district court for Ramsey county, where the action was tried by Brill, J.
Judgment reversed, and cause remanded.
J. M Shaw, A. J. Shores, and Hawley & Hall, for appellant.
Alf. E Boyesen, Horace Austin, and W. E. Hale, for respondent.
As we view this case, there is only one of the questions discussed by counsel which we need consider. In September, 1878, the defendant Nell and her husband executed a joint power of attorney to Richard W. Johnson, authorizing him to sell all or any portion of the real estate belonging to either of them, "for such sums and at such prices as to him might seem meet," and to "make, execute, acknowledge, and deliver good and sufficient deeds and conveyances for the same." Subsequently Mrs. Nell gave to Johnson directions by letter (not under seal, and her husband not joining therein) to convey, without consideration, the tract of land now in dispute (which was hers) to her son Lyman C. Dayton. When Lyman C. called upon Johnson for the deed, he requested him to make it to his wife, this plaintiff. In pursuance of these instructions from Mrs. Nell, and this request of Lyman C. Dayton, Johnson, as attorney for Mrs. Nell and husband, executed a deed to plaintiff, no valuable consideration therefor passing from plaintiff or Lyman C. to either Johnson or Mrs. Nell. Plaintiff thereupon went into, and has ever since remained in, possession under this deed. Mrs. Nell knew of the deed soon after its execution. Nell, her husband, died in 1881, since which time Mrs. Nell has remained single. In April, 1888, plaintiff brought this action to determine the adverse claim of Mrs. Nell, who in her answer asserts title in herself.
Defendant's contention is that the deed executed to plaintiff by Johnson is void because unauthorized by his power of attorney. The line of argument in support of this claim is substantially this: That a power to sell does not authorize a gift; that as a married woman can only convey her real estate, or authorize another to do so, by an instrument in the execution of which her husband joins with her, therefore the instructions given by Mrs. Nell alone to Johnson were ineffectual to enlarge his authority, and hence a deed without consideration, being unauthorized by the power of attorney, was absolutely void and conveyed no title. From his conclusions of law it is evident that the trial judge adopted this view of the case, and on that ground ordered judgment for the defendant. While this reasoning is plausible, it seems to us fallacious. We think that both court and counsel may have fallen into error by failing to distinguish between a power to "sell" and a power to "convey," and by assuming that in such a power of attorney the two are one and indivisible. A person may give another authority to sell land without giving him authority to execute conveyances, or he may give him power to execute conveyances without the power to make sales, or he may give him power to do both. Authority to convey can only be given by deed, while authority to sell may be given by parol, and, until a recent statute, even verbally. It may be well to test the correctness of defendant's position by considering the consequences to which it would logically lead. Suppose the power is to sell for a specified price, and to execute a conveyance, but the principal subsequently, by parol, directs the agent to sell for a less price, which he...
To continue reading
Request your trial