Machebeuf v. Clements

• Decision Date: 01 February 1873
• Court: Colorado Supreme Court
• Parties: MACHEBEUF et al. v. CLEMENTS.

2 Colo. 36

MACHEBEUF et al. v. CLEMENTS.

Supreme Court of Colorado

February, 1873

A grantor in a power of attorney, authorizing the attorney therein appointed to convey real estate on the performance of prescribed conditions, who sues to set aside a conveyance by the attorney on the ground that the conditions prescribed were not performed, has the burden of proving nonperformance of the conditions, though a negative is involved.

Error to District Court, Arapahoe County.

ALFRED H. CLEMENTS filed his bill in the district court of Arapahoe county against Joseph P. Machebeuf and twenty-two others alleging that he owned a certain tract of land, embracing many blocks and lots, in the city of Denver. That in the years 1864 and 1865, one James Hall, pretending to act as the attorney in fact of the complainant, conveyed by deed of general warranty, some of the said lots and blocks to the said Machebeuf and others to the other defendants respectively. That all of the said deeds were made without any authority whatever, and that the said defendants combined and confederated with the said Hall to cheat and defraud the complainant, etc.

The prayer of the bill was that the said deeds might be set aside, canceled, etc.

The defendants admitted that the complainant owned the land and that Hall made the deeds as alleged, and relied upon certain powers of attorney, the first being as follows:

Know all men by these presents, that I, Alfred H. Clements of Central city, in the county of Gilpin and territory of Colorado, have made, constituted and appointed, and by these presents do make, constitute and appoint, James Hall of Denver City my true and lawful attorney for me and in my name, place and stead, to act upon the application and demand of any person or persons actually owning and showing the same by abstracts of title properly certified to by the county clerk of Arapahoe county, C. T., to town lots in Denver City situate on the south (1/2) half of northeast, (1/4) and east (1/2) half of south-east (1/4) quarter of section (34) thirty-four, town (3) three south, range (68) sixty-eight west, in aforesaid county and territory, and upon the payment of forty cents (40 cts.) for each and every lot, and the further expenses of making, acknowledging and delivering and all other expenses of every name and nature in accordance with the tenor and meaning of a certain bond executed by me to H. J. Brendlinger, mayor of Denver City, in trust for the citizens thereof, dated June, 1864, and upon the fulfillments of the above requirements and all others as intended and mentioned in said bond aforesaid, to make, execute and deliver good and sufficient deed or deeds with covenants of warranty to any person or persons that may apply for the same within three months from date of said bond aforesaid, and in compliance of the same, giving and granting unto my said attorney full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises as fully to all intents and purposes as I might or could do if personally present with full power of revocation, hereby ratifying and confirming all that my attorney or his substitute shall lawfully do or cause to be done by virtue thereof.

In witness whereof I have hereunto set my hand and seal this fourteenth day of June, 1864.

ALFRED H. CLEMENTS.

Sealed and delivered in presence of

CHAS. R. FISH.

The second power of attorney was dated June 17, 1864, and authorized Hall to enter into all lands in the county of Arapahoe to which Clements was in any way entitled, and to sell the same and convey by quitclaim deeds, being a general power without conditions. This instrument is not noticed in the opinion of the court. There was evidence which tended to prove that the bond mentioned in the first power of attorney had been lost, and it was not produced at the hearing. The court set aside the several conveyances made to the defendants respectively, according to the prayer of the bill.

Mr. E. L. SMITH and Mr. ALFRED SAYRE, for plaintiffs in error.

Mr. S.E. BROWNE, for defendants in error.

WELLS J.

The plaintiffs in error have assigned for error only the final decree given in the district court, and we have therefore omitted all consideration of the sufficiency of complainant's bill, and the regularity of the proceedings anterior to the decree.

In view of the conclusion to which we have arrived upon another point in the case, it will be unnecessary to consider whether the conveyances sought to be impeached by the bill can be referred to the letter of attorney of June 17, 1864. I therefore proceed to the question whether they can be sustained, as executed under the letter of attorney of June 14th. It is manifest that the authority given by the instrument was a conditional or limited one, in order to the exercise of which certain prerequisites must have occurred; thus the attorney could convey only upon application; the application must have been within three months next after the date of the bond to Brendlinger, which is referred to in the power; the applicant must have produced to the attorney an abstract of his title, certified from the recorder's office; he must have paid the sum of 40 cents for each lot conveyed, and the expenses of the conveyance; and all other requisites and conditions set down in the bond to Brendlinger must have been complied with and performed; and if the conveyances here complained of, or any of them, were executed without performance of these conditions, it may, I think, be well enough said that it was, in the language of the bill, 'without any authority whatsoever.' But the defendants severally deny this allegation of the bill, and there is no evidence, outside of the conveyances themselves, to show whether the conditions, set down in the letter of attorney of June 14th, were or were not performed; I think the case must therefore turn upon the question whether it was incumbent upon the complainant to prove the negative allegation of his bill in this respect, or upon the defendants to sustain the affirmative contained in the answer in response thereto; that is to say, upon whom is the burden of proof?

It is argued, on the part of the plaintiffs in error, that, inasmuch as nothing appears to the contrary, the attorney must be supposed to have observed the limitations imposed upon him, according to the maxim 'omnia rite esse acta;' and since, if there be such presumption, the defendants in the court below were at liberty to rest thereon until it was overthrown, even though the burden of proof should be held to be upon them, it will be necessary to inquire how far the maxim sought to be applied extends. In respect to the acts of public officers, this maxim is of almost universal application, and its force and scope in that class of cases is, I think, pretty well established and defined. How far it may be applied in support of the acts of private agents is, upon authority, not very clear.

In Mr. Broom's work (Leg. Max. 730*), it is said that the presumption applies to the acts of private individuals, especially when they are of a formal character, as writings under seal; and the same doctrine is asserted in substantially the same words in Mr. Phillip's work on Evidence (5th Am. ed. 643*), where many examples are cited from reported cases.

I do not perceive, however, that any of the cases there referred to are quite analogous to this, and, so far as I have been able to examine them, they appear to be examples of the application of the same maxim in another form, in which it is sometimes seen in the books, and in which lapse of time is essential to raise the presumption. 1 Greenl. Ev., s 20. There are, indeed, many instances wherein the courts, although not expressly referring to this maxim, appear to apply the rule which it announces; e. g., the seal of a corporation appearing affixed to a deed purporting to be theirs, is presumed to have been affixed by proper authority. Kohler v. Black River Falls Iron Co., 2 Black, 717. So, where a corporation is authorized by its charter to acquire and hold real or personal estate in a particular manner, or for particular purposes, and it is found in possession of such estate, it is presumed, nothing appearing to the contrary, to have acquired it in the manner and for the purposes authorized in the charter. Downing v. Mt. Washington Road Co., 40 N.H. 234; DeGroff v. Am. Linen Thread Co., 21 N.Y. 126; Chautauqua Bank v. Risley, 19 id. 381; Farmers' Loan and Trust Co. v. Curtiss, 7 id.; Farmers' Bank v. Detroit R. R. Co., 17 Wis. 372.

So, where an insurance company was authorized to receive promissory notes in certain cases only, it was held, in an action brought by the corporation upon certain notes, wherein it was named as payee, that, in the absence of proof to the contrary, it must be presumed that they were executed in a transaction within the corporate powers, and in which the company were authorized to receive them. Mutual Benefit Life Ins. Co. v. Davis, 12 N.Y. 573.

The case of Howard v. Borrman, 17 Wis. 459, asserts the same doctrine. The same presumption has been applied to negotiable paper executed by a corporation. Safford v. Wyckoff, 4 Hill. So in the case of negotiable paper purporting to be executed in the name of a partnership, the signature being shown to be in the handwriting of one of the firm, it is held that a presumption arises that the paper was executed in a partnership transaction, and not for the individual debt of him who subscribed it. McMullan v. McKenzie, 2 G. Greene, 368; Ensminger v. Marion, 5 Blackf. 210.

These cases appear to me to be quite analogous to the one now under consideration. In every one of them the question was one...