Lewis v. Lewis
| Decision Date | 04 June 1902 |
| Docket Number | 291 |
| Citation | 52 A. 203,203 Pa. 194 |
| Parties | Lewis, Appellant, v. Lewis |
| Court | Pennsylvania Supreme Court |
Argued February 18, 1902
Appeal, No. 291, Jan. T., 1901, by plaintiff, from decree of C.P. Schuylkill Co., Jan. T., 1900, No. 1, dismissing bill in equity, in case of Lewis J. Lewis v. Samuel E. Lewis. Reversed.
Bill in equity for the cancellation of deeds.
From the record it appeared that the complainant and defendant were father and son, and that the deeds were executed by Sarah E. Lewis, the wife of complainant to defendant, her son, under an alleged authority contained in a power of attorney from complainant to his wife executed on March 20 1878. The circumstances under which the power of attorney was given and the deed executed are fully stated in the opinion of the Supreme Court.
Error assigned was decree dismissing the bill.
The decree of the court below dismissing the bill is reversed and the bill is reinstated, and it is ordered that the record be remitted to the court below for further proceedings in accordance with this opinion.
E. P. Leuschner and W. D. Seltzer, for appellant. -- An agent constituted for a particular purpose and under limited power cannot bind his principal if he exceeds his power. A special power must be strictly pursued, and whoever deals with an agent constituted for a special purpose deals at his peril when the agent passes the precise limits of his power: Devinney v. Reynolds, 1 W. & S. 328; Williams v. Getty, 31 Pa. 461; Campbell v. Foster Home Assn., 163 Pa. 632.
A special power is to be strictly executed, otherwise its execution amounts to nothing: Wickersham v. Savage, 58 Pa. 365; Wilson v. Wilson, 181 Pa. 80.
All sales, whether of real or personal property, by an agent appointed generally to sell, must be for a consideration in money, and such an agent cannot bind his principal by receiving payment in bonds, notes or other paper: Paul v. Grimm, 165 Pa. 139; Randall v. Duff, 3 L.R.A. 754; Boardman v. Dean, 34 Pa. 252; McCollough v. McKee, 16 Pa. 289.
W. J. Whitehouse, with him D. L. Thomas and R. A. Freiler, for appellee. -- Where the agent is authorized in general terms to sell, he is assumed to have power to take all the usual steps to effect the sale: Peck v. Harriott, 6 S. & R. 146; Williams v. Getty, 31 Pa. 464; Alexander v. Goodwin, 20 Neb. 216; Lamy v. Burr, 36 Mo. 85; Haydock v. Stow, 40 N.Y. 363; Valentine v. Piper, 22 Pick. 85; Yale v. Eames, 1 Metc. 486; People v. Boring, 8 Cal. 407; Fogarity v. Sawyer, 17 Cal. 589; Plummer v. Buck, 16 Neb. 322; Hemstreet v. Burdict, 90 Ill. 444.
Before McCOLLUM, C.J., MITCHELL, FELL, BROWN and POTTER, JJ.
Prior to March, 1878, the complainant in this case lived with his family in Schuylkill county, Pennsylvania. Deeming it for his interest to remove to Dakota, he executed upon March 20, 1878, a special power of attorney, authorizing his wife, Sarah Lewis, as his agent and attorney to collect all debts, rents or other moneys due him, or which might thereafter be payable to him, and to use the same for the support and maintenance of herself and children. He also authorized her to make sale of certain real estate, but there was no authority for her to appropriate the proceeds of any such sale of the real estate for the maintenance of herself and children.
When Mr. Lewis removed to Dakota, it was expected that in due time his wife and family should follow him. For some reason, however, they did not go, and the husband continued to reside in Dakota, while the wife and family remained in Pennsylvania. From time to time he made remittances of money, and more than once came back upon a visit. The wife, in the mean time, continued to collect and use the rentals of the husband's real estate, and received the wages of the minor children.
On May 11, 1894, Sarah Lewis, as attorney in fact for her husband and individually, executed and acknowledged a deed to her son, the respondent in this case, for lot No. 147 in the plan of lots mentioned, the consideration recited in the deed being the sum of $2,000. On December 11, 1895, she executed and acknowledged another deed to her son for lot No. 145, for a consideration as expressed of $1,800.
As a matter of fact, however, no money consideration for the deeds actually passed between the mother and her son. The real consideration, according to the testimony, being certain moneys which the respondent had previously given to his mother from his earnings, and which she had used for her maintenance, and in making repairs to the property in controversy. He also, as part of the consideration, made an agreement to support his mother for the remainder of her natural life.
If it be conceded that under the special power of attorney, executed by the complainant, his wife had authority to convey the property, there remains a serious question as to whether or not the consideration received by the wife was sufficient to support the conveyance.
The trial judge held that the consideration was sufficient but cited no authorities in support of his conclusion. One of the cases relied upon in the other branch of the case, in sustaining the right to make the conveyance, is Peck v Harriott, 6 S. & R. 146. In this case, DUNCAN, J., on page 148, lays down the principle that, "An attorney who has power to convey, has so essentially the power to receive the purchase...
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