McClure v. Herring

• Decision Date: 31 October 1879
• Citation: 70 Mo. 18
• Parties: MCCLURE, Appellant, v. HERRING.
• Court: Missouri Supreme Court

70 Mo. 18

MCCLURE, Appellant,

v.HERRING.

Supreme Court of Missouri.

October Term, 1879.

Appeal from Harrison Circuit Court.--HON. S. A. RICHARDSON, Judge.

REVERSED.

S. P. Huston for appellant.

1. Where the attorney covenants in the name of the principals, attests it in their names, signs their names and affixes their seals, it is not his deed, but that of his principals. Martin v. Almond, 25 Mo. 313; Shuetze v. Bailey, 40 Mo. 69; Wilburn v. Larkin, 3 Blackf. 55; Deming v. Bullitt, 1 Blackf. 24; 1 Am. Lead. Cases, 428. 2. The description in the power of attorney is sufficient. Jackson v. De Lancey, 11 Johns. 365; 13 Johns. 537; Pond v. Bergh, 10 Paige 140; Worthington v. Hylyer, 4 Mass. 204; Menkens v. Blumenthal, 27 Mo. 198.

F. H. Ramer and T. D. Neal for respondent.

1. It was the deed of the attorney and not that of the principal. The granting part of the deed is clearly that of the attorney, and although it makes the principal covenant expressly in the conclusion of the deed, yet he does not covenant by the words “grant, bargain and sell,” and the granting clause is the controlling part of a deed. 2 Wash. on Real Prop., (2 Ed.) 651, 652, 613; Shep. Touch. 52, p. 98. The grant must be that of the principal. 2 Wash. on Real Prop., (2 Ed.) 598, 599, p. 573; Murphy v. Price, 48 Mo. 247; Elwell v. Shaw, 1 Am. Lead. Cas. (4 Ed.) 596; New England Marine Ins. Co. v. De Wolf, 1 Am. Lead. Cas. (4 Ed.) 600, 607. 2. The power of attorney did not sufficiently designate the land to be conveyed by the attorney. “All the lands he owned in certain counties,” naming them, was too vague and uncertain It did not sufficiently apprise third parties as to what lands were intended. Carter v. Holman, 60 Mo. 498, 500; Gatewood v. House, 65 Mo. 663. 3. The deed does not purport to be that of the principal, but that of the attorney only. It is by Thomas W. Hawkins, who as “attorney for Leo and Mrs. G. Augusta Tarlton, sets their hands and seals.” This is bad 1 Am. Lead. Cas. 602, 603.

HENRY, J.

The plaintiff brought suit in the Harrison circuit court to its March term, 1877, against defendant for the possession of the southwest quarter section 20, township 66, range 27, in said county. The petition was in the ordinary form of petition in ejectment. The defendants, answer was a general denial. Plaintiff read in evidence to maintain the issues on his part a United States patent, conveying the land to Leo Tarlton. Plaintiff then read in evidence a power of attorney from Leo Tarlton and wife to Thomas W. Hawkins, authorizing him as their attorney in fact, in their names, to sell and dispose of in fee simple, all lands of which they were seized in the counties of Atchison, Andrew, Harrison, Grundy and Gentry, in the State of Missouri; as well as other lands situate and lying in the State of Missouri; and for them, in their names and as their act and deed, to sign, seal, execute and deliver such deeds and conveyances for the sale and disposal of any part thereof, as their said attorney should think fit. Plaintiff next offered in evidence a certified copy of the record of a deed from Thomas W. Hawkins, for himself and Leo Tarlton and wife, to Alfred W. Lamb, which deed was as follows, affecting said lands, to-wit: “Know all men by these presents--That I, Thomas W. Hawkins, of Marion county, State of Missouri, for myself, and as attorney for Leo Tarlton and Mrs G Augusta Tarlton, his wife * * by their duly authorized letters of attorney, under their hands and seals, in consideration of $1,850, to us paid by Alfred W. Lamb, of Marion county, State of Missouri, do sell and convey to said Alfrod W. Lamb, and his heirs forever, the following described tracts or parcels of land lying and situate in the county of Harrison, and State of Missouri, to-wit: The * * southwest quarter of section 20, township 66, range 27 * * To have and to hold the said tracts or parcels of lands, with all the privileges, &c., to said grantee and his heirs forever. And we, the said Leo Tarlton and G. Augusta Tarlton, do covenant with said grantee and his heirs that we are rightfully seized in fee simple of said tracts or parcels of land, &c., and that we and our heirs will warrant the said premises to said grantee and his heirs forever against the lawful claims of all persons. In witness whereof, I, Thomas W. Hawkins, in my own right, have hereunto set my hand and seal, and, as attorney for said Leo Tarlton and Mrs. G. Augusta Tarlton, have hereunto set their hands and seals.

THOMAS W. HAWKINS,

[L. S.]

LEO TARLTON,

[L. S.]

G. AUGUSTA TARLTON,

[L. S.]

By Thomas W. Hawkins, their attorney in fact.”

Defendant, by his attorneys, objected to the introduction of said deed, because, 1st, It was the deed of the attorney, Hawkins, and not that of Tarlton and wife; 2nd, It is ineffectual as a conveyance by Tarlton and wife, of any title owned by them in the land in controversy; 3rd, The power of attorney under which the deed was made, did not sufficiently designate the land to be conveyed by the attorneys 4th, The deed does not purport to be that of the principal, nor to convey the title of the pricipal, but only that of the attorney. The court sustained the defendant's objections, and rejected the deed as evidence, to which plaintiff excepted, and leave to set aside non-suit taken being refused, plaintiff brings this case here by appeal.

1. DEED, executed under power of attorney, when binding on principal.

Mr. Washburn, in his work on real property, (vol. 2, 2 Ed., 576,) reviews the cases on the subject presented for consideration here by the action of the court in excluding the deed from the jury, and admits that there is conflict of opinion, but states the doctrine deducible from them thus: “The leading doctrine running through them, though not always applied, seems to be, that to make such a deed valid, the instrument itself must, in terms show that it is the deed of the principal, that he makes the grants and covenants, and that the seal is his. The instrument, in some part, must also show that its execution by the principal was done by the attorney named. If this all appears clearly in any part of the instrument, the precise form or arrangement of the words does not seem to be essential.” In Elwell v. Shaw, 16 Mass. 42, 47, reported also in Am. Lead. Cas., as a leading case on the subject, the deed recited the power of attorney to Joshua Elwell, and then proceeded as follows: “Know ye that I, the said Joshua, by virtue of the power aforesaid, &c., do hereby bargain, grant, sell and convey, &c.,” and concluded: “In testimony whereof, I have hereunto set the name and seal of said Jonathan this, &c. Joshua Elwell, [[[[[Seal.]” The body of the deed there is similar in some respects to the deed in this case, but in the execution of the deed there is a marked and important difference. Here the name of the principals are signed as grantors and their seals attached. while neither in the body nor in the execution of the deed in Elwell v. Shaw does the principal appear as grantor. In Mussey v. Scott, 7 Cush. 216, Metcalf, J., observes: “But however clearly the body of the deed may show an intent that it shall be the act of the principal, yet, unless it is executed by his attorney for him, it is not his deed, but the deed of the attorney or no one.” On that principle alone Elwell v. Shaw may be maintained, and there are numerous other adjudged cases which were controlled by that principle. Fowler v. Shearer, 7 Mass. 15, is frequently cited in discussion on this subject. There John Fowler, the husband, gave his wife, Abigail, a power of attorney to execute a deed for land--she made a conveyance as follows: “Know ye that I, Abigail Fowler, of Palmer, &c., and also as attorney to John Fowler, &c., in consideration of, &c., paid by Daniel Shearer, of Palmer, have given, granted, and by these presents do give, grant, &c.” The language of the remainder of the deed purported to be her conveyance and her covenants. The instrument concluded “in witness whereof, I have hereunto set my hand and seal, this 7th day of August, 1805. Abigail Fowler, [Seal.]” The court held that it was not the deed of the husband. As in Elwell v. Shaw, the principal did not execute it, and therein both differ from the case at bar.

Harper v. Hampton, 1 Harr. & J. 709, was a case in which the attorney signed his own name as attorney for his principal, and it was held to be the deed of the attorney, and not of the principal. The contrary, however, was held by this court in Martin v. Almond, 25 Mo. 313, and while the adjudications on the subject are not harmonious, we think the doctrine of that case fully sustained by the weight of authority. There is a general disposition to relax the rigid rules of the common law in regard to conveyances. The formality and exactness formerly deemed necessary are not now required. There is a disposition to effectuate the intention of the parties, where that can certainly be ascertained from the deed. But to return to the main question. Shanks v. Lancaster, 5 Gratt. 110, 118, is a case directly in point. “The deed made by the attorney was in the name of Abraham Beckner, attorney in fact for Jacob Beckner and Catherine, his wife, of the first part.” It proceeded in the same style to convey the land, and in the same style ...