Lamy v. Burr

• Decision Date: 31 July 1865
• Citation: 36 Mo. 85
• Parties: ERNEST LAMY AND JACOB MCFADDEN, Defendants in Error, v. WILLIAM E. BURR, GARNISHEE OF BRAND, Plaintiff in Error.
• Court: Missouri Supreme Court

36 Mo. 85

ERNEST LAMY AND JACOB MCFADDEN, Defendants in Error,

v.WILLIAM E. BURR, GARNISHEE OF BRAND, Plaintiff in Error.

Supreme Court of Missouri.

July Term, 1865.

Error to Cooper Circuit Court.

Muir & Draffen, for defendants in error.

I. The judgment of the Circuit Court was correct, for the reason that the property mentioned and described in the garnishee's answer was subject to this attachment. The deed of trust, under and by virtue of which the garnishee claimed said property, was and is void; it was made by an agent under a letter of attorney, and confers no power upon said agent to convey said property in trust for the payment of the principal's debts. The power of attorney authorized a sale, but, we think, a sale in the usual sense of that term, and not a sale upon conditions; and, in construing the power, the intention of the party giving it should govern. (Bank of Mo. v. McKnight, 2 Mo. t. p. 38; 1 Am. Lea. Ca. 560-1; Sto. on Ag. § 1, p. 65.)

But suppose it be admitted that the power of attorney in this case did authorize the agent Wilson to convey the property in question in trust; is there anything in the power that would authorize the trustee to pay the debts of Brand? We think the agent Wilson himself could not have legally done so; and if he could, will it be contended that his substitute could?

As Wilson was simply an agent for Brand, with authority to do certain acts mentioned in the power of attorney, what right had Wilson, under the power, to substitute Burr, the garnishee? Wilson was the person appointed by Brand, and not Burr. Wilson, then, being Brand's agent, he could not delegate his authority. (Sto. on Ag. § 13, p. 14.)

Adams, for plaintiff in error.

I. The only question presented by this record is whether the power of attorney from Brand to Wilson authorized the execution of the deed of trust to Burr. In construing a power of attorney; we look primarily at the language, and then to the attendant circumstances and the purpose intended to be accomplished. In this case, the large and comprehensive terms of this power of attorney to Wilson undoubtedly includes the power to make a deed of trust, unless there be something in the surrounding circumstances which clearly excludes such an idea. So fa from that being the case, the pleadings admit that the main object and purpose of the power was the application of Brand's property to the payment of his debts; that he himself was not in a condition to attend to it, and therefore, in appointing his attorney, he conferred upon him full power to transact all his business, and full power to dispose of all his property. He intended to invest, and by the language of the power of attorney did invest Wilson with supreme power over all his business. But the main business to be transacted was the application of his property to the payment of his debts; how could this be so well done, and so equitable to the creditors, as by a deed of trust which would distribute the proceeds ratably amongst them? It is said that a simple power to sell does not comprehend the power to mortgage; but this is not a simple power to sell property, but, in connection with that, are the most ample and comprehensive powers to settle and transact all of Brand's business. Under this power, is there any doubt that Wilson, in settling Brand's affairs, would execute promissory notes in Brand's name? Would not Brand, beyond all question, be bound by such notes? and if Wilson could do this, could he not also execute mortgages to secure the payment of such notes? (Bank of Mo. v. McKnight, 2 Mo. 42; Taylor v. Labeaume, 14 Mo. 572; Taylor v. Bennett, 17 Mo. 338; Sto. on Ag. § 126.)

II. The principle that an agent cannot delegate his powers is not involved in this case. The Circuit Court based its opinion on this ground, that it has no bearing whatever upon the case. There is no pretence that Wilson delegated, or attempted to delegate, his power. By the execution of the deed of trust his power ceases; it was a functus officio. The power of sale in the mortgage to Burr was not a delegated power from Wilson. The deed to Burr carried the whole legal title, and the power to sell was a mere trust created for the purpose of enabling him to foreclose the mortgage without resorting to the courts for that purpose. Such a power is exercised by the trustee in his own name as owner of the property, and not as agent for the original owner. If Wilson had power to make a simple mortgage, he surely had power to make a mortgage with power of sale. If the mortgage to Burr without the power of sale would have been good, such power could not invalidate it, and therefore, in any view of the case, the property conveyed to Burr was not subject to this garnishment.

WAGNER, Judge, delivered the opinion of the court.

Plaintiff sued one Horace H. Brand in attachment in the Cooper Circuit Court and recovered judgment, and Burr was summoned as garnishee. In the spring of 1861, Brand joined the rebel army under Gen. Sterling Price, and left his home in Cooper county in this State. In July in said year, whilst in Newton county in this State, he made and executed a power of attorney to Barton S. Wilson,...