Lumpkin v. Wilson

Decision Date30 April 1871
Citation52 Tenn. 555
PartiesW. D. Lumpkin v. James Wilson et als.
CourtTennessee Supreme Court

OPINION TEXT STARTS HERE

FROM SHELBY.

Appeal from Chancery Court at Memphis. WM. M. SMITH, Ch.

HUMES, POSTON & WEBB for Complainant.

ESTES & JACKSON for Defendants.

SNEED, J., delivered the opinion of the Court.

The original bill was filed by Lumpkin, to have perfected his title to a lot of ground in Memphis, bought by him from James Wilson, as attorney in fact of Ruth Keene, who was the legal owner of four-tenths thereof, as tenant in common with the other heirs of John A. Wilson, deceased.

The cross bill was filed by the children of Ruth Keene, she being dead, insisting on their title to the said lot of ground, and praying to have the deed to it made by James Wilson, as attorney in fact of their mother, declared null, as a cloud on their title.

The parties entered of record an agreement as to the facts, of which the following present the questions involved in the controversy:

Ruth Keene owned four-tenths, and Mrs. Talbot one-tenth of the lot in dispute. About the 23d of July, 1867, each made and executed a power of attorney to James Wilson, one of which, viz.: that by Mrs. Talbot, is exhibited in the record, but that executed by Mrs. Keene, which is lost, was similar in tenor and effect to that executed by Mrs. Talbot.

These powers of attorney constituted James Wilson their attorney in fact, and empowered him to sell and dispose of their respective interests in the said real estate described in the bill, in such manner and upon such terms as is recited in the aforesaid power of attorney, from Sarah R. Talbot, and to carry the same as therein authorized.

Early in September, 1867, negotiations were commenced on the part of said James Wilson, with complainant, for the sale of the said interests of Mrs. Keene and Mrs. Talbot, and on the part of complainant with the other legal heirs of Dr. J. A. Wilson, for the purchase of their individual interests in said realty; and when conplainant had been satisfied by an examination of these said two powers of attorney by him and by his legal adviser, that said Wilson had full power to so dispose of these said interests, these negotiations were concluded on the 7th of September, 1867, by the purchase of these interests, and the execution of the conveyance from said Wilson to complainant, a copy of which is exhibited in the record.

After this deed was made and delivered, and before the powers of attorney were recorded, they were accidentally lost. Mrs. Talbot afterward came into possession of the one executed by her, and the same is produced and on file. The one executed by Mrs. Keene was never recovered.

Mrs. Keene and Mrs. Talbot both lived in Texas when the powers of attorney were made; the latter still lives there, and the former is dead, leaving complainants in the cross-bill her only heirs.

The power of attorney from Mrs. Talbot to James Wilson, which is agreed to be similar in tenor and legal effect to that executed by Mrs. Keene, appointed him to be her true and lawful agent and attorney in fact, for her and in her name “to bargain, sell, alien, enfeoff, transfer, and convey, by deed in fee simple, all my individual interest, claim and demand, of, in and to the estates of John A. Wilson, and James B. Wilson, whether the same be real, personal, or mixed; to do and perform any and all acts and deeds necessary to be done, in and about the premises, to obtain my pro rata share of said estates, due or to become due; to sue and be sued, implead, and be impleaded; and I do by these presents ratify and confirm all the lawful actings and doings,” etc.

In his original bill complainant states that the interests of Mrs. Keene and Mrs. Talbot in the lot were paid for by selling and delivering to James Wilson a stock of goods, wares and merchandise; and in his answer to the cross bill, he repeats the substance of his original bill. The first question presented on these facts is, whether the power of attorney authorized the agent to convey the lot for goods, wares and merchandise? And the answer to this depends upon the question, whether he was thereby constituted a general or a special agent? The power conferred was, “to bargain, sell, alien, enfeoff, transfer and convey, by deed in fee simple,” etc.; and “to do and perform any and all acts and deeds, necessary to be done, in and about the premises.” The agency was clearly special, it was confined to selling and conveying the lot. There was no directions or instructions beyond the selling and conveying, and the doing of such things as might be necessary to carry out the power. Under this power the agent had no right to sell and convey for any other consideration than for money: 7 Hum., 41;8 Hum., 132;6 Hum., 62. The agency being special, the power is to be strictly construed. This is the settled rule...

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