Elwell v. Shaw

• Decision Date: 01 October 1821
• Parties: ELWELL v. SHAW
• Court: Maine Supreme Court

1 Me. 339

ELWELL v. SHAW

Supreme Judicial Court of Maine, Hancock

October, 1821

[Syllabus Material]

THIS cause was ordered to a new trial by the Supreme Judicial Court of Massachusetts immediately before the separation of Maine from that State, by a written order of the Court transmitted from Boston to the Clerk of this county. But the report of the case not being as yet printed, [since published in 16 Mass. 42.] and the principles of the decision not having been distinctly ascertained, it was opened de novo at October term 1820.

The tenant claimed title, as before, under Jonathan Elwell, the demandant, by virtue of a deed executed by Joshua Elwell his attorney, whose authority to make a deed of the premises in the name of his principal was admitted to be sufficient. This deed, after a recital of the substance of the letter of attorney, was in the following words: " Now know ye that I the said Joshua, by virtue of the power aforesaid, in consideration of two hundred dollars paid me by J. S. and T P. S. of, & c. the receipt whereof I do hereby acknowledge do hereby bargain, grant, sell and convey unto the said J. and T. a certain tract of land, & c.--To have and to hold the same to them the said J. and T. their heirs and assigns forever. And I do covenant with the said J. and T. that I am duly empowered to make the grant and conveyance aforesaid; that the said Jonathan, at the time of executing said power was, and now is, lawfully seized of the premises, and that he will warrant and defend the same to the said J. and T. forever, against the lawful claims and demands of all persons. In testimony whereof I have hereunto set the name and seal of the said Jonathan, this," & c. Signed Joshua Elwell, and a seal--and acknowledged by the said Joshua to be " his and the said Jonathan's deed," before a magistrate.

But the Judge who presided at the trial of the cause ruled that this was not the deed of the demandant, and therefore could not operate to pass the fee from him.

The tenant then shewed the deed of Thomas Buckmar, collector of taxes for the town of Northport, in which the land lies, conveying the premises to the tenant, as purchaser at a sale for non-payment of taxes. It appeared that there were five distinct taxes assessed and committed to the collector in separate bills, for the non-payment of all which the land was sold. The only objection made to the validity of the sale was, that in one of these assessments the overlayings exceeded, by ten dollars and thirteen cents, the amount authorized by the statute.

The Judge ruled that this objection was fatal to the tenant's title under the collector's deed; and a verdict was thereupon taken for the demandant, subject to the opinion of the Court upon the facts above stated.

Judgment upon the verdict.

Wilson and Greenleaf, for the defendant, argued, as to the first point, that the deed must be taken to be the deed of the demandant, unless it was plainly the deed of the attorney. The seal is expressly declared to be the demandant's, and the intent of the conveyance, as is manifest from inspection, was to convey the estate in execution of the power. The cases where the attorney has been held answerable personally on his covenants or other engagements are cases where he acted either beyond his authority; --as where administrators covenanted to warrant, Sumner v. Williams, 8 Mass. 162. 209.--to perform an award, Barry v. Rush, 1 D. & E. 691.--and where a guardian gave a promissory note; Thatcher v. Dinsmore, 5 Mass. 299.--Or without any authority whatever; Appleton v. Binks, 5 East 148. Tippets v. Walker, 4 Mass. 595. Tucker v. Bass, 5 Mass. 164.--Or where he does not name his principal, or does not express in the instrument the authority under which he acts; Stackpole v. Arnold, 11 Mass. 27. Mayhew v. Prince, 11 Mass. 54. Afridson v. Ladd, 12 Mass. 173. White v. Cuyler, 6 D. & E. 176.--Or where he expressly covenants in his own name; Fowler v. Shearer, 7 Mass. 14. If the instrument be executed in the name of the principal, or distinctly declare the person intended to be bound, it is enough. Long v. Colburn, 11 Mass. 97. Wilkes v. Back, 2 East 142. And as in this case the attorney had sufficient authority, which is recited in the deed, in which the party intended to be bound is plainly shewn to be the demandant, whose seal is affixed; and as the attorney has not exceeded his authority, the deed cannot be considered as his, and is therefore the demandant's.

As to the second point, they contended that no injury could possibly result to the owner of land by supporting a collector's sale where one of the taxes was legally assessed. The valuation and copy of the assessments being lodged in the proper office would always enable him to ascertain what taxes were legally assessed, and these might be tendered at any time within two years and the land redeemed. The expenses would generally be the same on a sale for one tax, as for more than one; and if not, the owner might tender...