Donovan v. Welch

• Decision Date: 18 April 1902
• Docket Number: 6731
• Court: North Dakota Supreme Court

90 N.W. 262

11 N.D. 113

MARY DONOVAN v. MARY A. WELCH

No. 6731

Supreme Court of North Dakota

April 18, 1902

Appeal from District Court, Cavalier County; Kneeshaw, J.

Action by Mary Donovan against Mary A. Welsh. Judgment for defendant, and plaintiff appeals. Affirmed.

Affirmed.

Templeton & Rex, for appellant.

The deed from McHugh to Moran conveyed no title or interest. McHugh had not title to convey, as the power of attorney authorized him to convey, not in his own, but in the name of Amelia Burritt. Subd. 3 § 3584, Rev. Codes. Conveyance must be an act of the principal and not of the attorney otherwise the conveyance is void. The attorney must convey in the name of the principal. It is not enough for an attorney in the body of the conveyance, to describe that he does it as attorney; it must be the act and deed of the principal executed by the attorney in his name. Fowler v. Shearer, 7 Mass. 14; Elwell v. Shaw, 16 Mass. 42; Echols v. Cheney, 28 Cal. 157; Stinchfield v. Little, 1 Greenleaf, 231; Caddell v. Allen, 6 S.E. 399; Norris v. Pains, 39 N.E. 660; North v. Henneberry, 44 Wis. 306. Clark v. Courtney, 5 Peters, 319-350. Amelia Burritt, plaintiff's grantor, was not made a party to the foreclosure action nor was the plaintiff made a party. It follows that the judgment does not preclude the plaintiff from asserting her rights in this action. Buxton v. Sargent, 7 N.D. 503, 75 N.W. 811. Acceptance of purchase money by Mrs. Burritt would not constitute a ratification so as to estop her from denying that title passed by McHugh's deed. § 4315, Rev. Codes; Salfield v. Sutter County, 29 P. 1105. The proof in this case falls short of establishing estoppel. Gjerstadengen v. Hartzell, 7 N.D. 612, 9 N.D. 268.

Cleary & McLean, for respondent.

The deed from McHugh to Moran shows by its recital that it was the intention to make the deed that of the principal. § 4339, Rev. Codes; Williams v. Livingstone, 9 N.W. 31; Williams v. Frost, 6 N.W. 793. Amelia Burritt, plaintiff's grantor, is estopped from denying the validity of the McHugh deed by accepting its benefits. § 3866, Rev. Codes; Morris v. Ewing, 76 N.W. 1050; Gjerstadengen v. Van Dusen, 7 N.D. 618, 1 Enc. L. 1213.

OPINION

YOUNG, J.

Plaintiff seeks in this action to quiet title and determine adverse claims to a tract of land consisting of 160 acres, and situated in Cavalier county, of which she claims to be the owner in fee simple. The defendant, in her answer, denies that plaintiff has any title or interest whatever in the premises in controversy, and, in her own behalf, claims a mortgage lien thereon executed by one Charles McQuarrie. The case was tried to the court without a jury. The trial court found that the defendant's mortgage is a valid and subsisting lien, and that the plaintiff has no title to the land in question and entered judgment dismissing the action. Plaintiff has appealed from the judgment, and in a settled statement of case, containing all of the evidence offered in the trial court, demands a retrial of the entire case in this court, pursuant to the provisions of § 5630, Rev. Codes.

There is no conflict in the testimony as to the controlling facts. The case turns upon the legal effect of a certain warranty deed executed and delivered by "Patrick McHugh attorney in fact for Amelia Burritt," to one Frank Moran. Both parties to this action trace their alleged interest to a common grantor, Amelia Burritt, who acquired her title from the United States government, November 6, 1891, Amelia Burritt executed and delivered to P. McHugh a power of attorney to sell and convey the land in question. December 30, 1893, a warranty deed was executed and delivered by "Patrick McHugh, attorney in fact for Amelia Burritt," to Moran. July 10, 1895, Moran deeded to Charles McQuarrie, and on the same day McQuarrie executed a mortgage to the defendant to secure the payment of $ 700, which sum constituted the consideration for the transfer to him by Moran, and is the mortgage described by the defendant in her answer. On August 7, 1896, McQuarrie quit-claimed to Edward I. Donovan, who is plaintiff's husband. In 1897 the defendant, Mary A. Welch, instituted an action to foreclose her mortgage, making Charles McQuarrie and Edward I. Donovan defendants. Judgment was entered in her favor. Execution was issued thereon, and the land sold on May 11, 1901; the period of redemption from said sale not having expired at this time. On November 22, 1900, Amelia Burritt, for a consideration of $ 25, executed and delivered a warranty deed to Mary Donovan, the plaintiff herein, the negotiations therefor being conducted by plaintiff's husband, Edward I. Donovan. All of the foregoing instruments were recorded at or about the date of their execution.

As before stated the rights of the parties to this action turn upon the construction of the deed to Moran. It is contended by the plaintiff that said deed is the individual deed of Patrick McHugh, and that it therefore did not operate as a conveyance of title, inas much as McHugh had no title to convey. If this contention is sound, it follows that McQuarrie acquired no title from Moran, and the defendant has no lien by virtue of her alleged mortgage. If, on the other hand, the deed to Moran is the deed of Amelia Burritt, and binds her, it is equally evident that her subsequent deed to plaintiff, who had both actual and constructive notice of the several transfers referred to, conveyed no title. It is properly conceded by the plaintiff that McHugh's power of attorney gave him ample authority to execute a conveyance which would bind his principal. But it is claimed that he did not do so. McHugh's authority is contained in, and limited by, the following language:

"I, Amelia Burritt, * * * do hereby make, constitute, and appoint P. McHugh * * * my true, sufficient, and lawful attorney, for me and in my name to sell and dispose of [description], * * * and to do and perform all necessary acts in the execution and prosecution of the aforesaid business in as full and ample manner as I might do if I were personally present."

The deed to Moran is in the following words and figures:

"This indenture, made this 30th day of Dec., in the year of our Lord 1893, between Patrick McHugh, atty. in fact for Amelia Burritt, of Medford, Ontario, party of the first part, and, Frank Moran, party of the second part, witnesseth that the said party of the first part, for and in consideration of the sum of two hundred ($ 200.00) dollars to him in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged, do hereby grant, bargain, sell, and convey unto the said party of the second part, his heirs and assigns, forever, all that parcel or tract of land lying and being in the county of Cavalier and state of North Dakota, described as follows: [Description.] To have and to hold the same, together with all the hereditaments and appurtenances thereto belonging or in any wise appertaining, to the said party of the second part, his heirs and assigns, forever; and the said Patrick McHugh, atty. in fact for Amelia Burritt, party of the first part, for himself, his heirs, executors, and administrators, do covenant with the party of the second part, his heirs and assigns, that he is well seized in fee of the land and premises aforesaid, and has good right to sell and convey the same in the manner and form aforesaid; that they are free from all incumbrance, and the above bargained and granted land and premises in the quiet and peaceable possession of the said party of the second part, his heirs and assigns, against all persons lawfully claiming or to claim the whole or any part thereof, the said party of the first part will warrant and defend. In witness whereof, the said party of the first part hereunto sets his hand and seal the day and year first above written. [Signed.] Patrick McHugh, Attorney in Fact for Amelia Burritt. Signed, sealed, and delivered in the presence of George Barcelo, H. D. Allert.

"State of North Dakota, County of Cavalier--ss." On the 31st day of December, A. D. 1893, before me personally appeared Patrick McHugh, attorney in fact for Amelia Burritt, to me well known to be the identical person described in, and who executed, the foregoing instrument, and he acknowledged that he executed the same freely and voluntarily for the uses and purposes therein expressed. In witness whereof, I have hereunto set my hand and official seal at said caunty the day and year above written. W. F. Winter, Notary Public."

Is the the foregoing instrument the individual deed of Patrick McHugh, or is it the deed of Amelia Burritt? Plaintiff insists that it is the deed of McHugh, and not the deed of her grantor, Amelia Burritt; and, to sustain this contention her counsel invoke a wellsettled rule applicable to the execution of sealed instruments by agents, which rule, as applied to conveyances of real estate, is that: "If an attorney has authority to convey land, he must do it in the name of the principal. The conveyance must be the act of the principal, and not of the attorney; otherwise the conveyance is void. And it is not enough for the attorney, in the form of the conveyance, to describe that he does it as attorney; for, he being in the place of the principal, it must be the act and deed of the principal, done and executed by the attorney in his name." Fowler v. Shearer, 7 Mass. 14; Mechem, Ag. § 419, and cases cited in note; 2 Jones, Real Prop. § 1040, and cases cited; Elwell v. Shaw, 16 Mass. 42, 8 Am. Dec. 126; Echols v. Cheney, 28 Cal. 157; Stinchfield v. Little, 1 Greenl. 231, 10 Am. Dec. 65; Caddell v. Allen (N. C.) 6 S.E. 399; Norris v. Dains (Ohio) 39 N.E. 660, 49 Am. St. Rep. 716; North v. Henneberry, 44 Wis. 306; Clarke's Lessee v....