Nippel v. Hammond

• Decision Date: 01 October 1878
• Citation: 4 Colo. 211
• Parties: NIPPEL v. HAMMOND AND HAMMOND, Executrix.
• Court: Colorado Supreme Court

4 Colo. 211

NIPPEL v. HAMMOND AND HAMMOND, Executrix.

Supreme Court of Colorado

October, 1878

Error to District Court of Arapahoe County.

THE power of attorney mentioned in the opinion of the court which was given by Hofstadt to Anthony Bohlscheid, was as follows:

'Know all men by these presents, that I, Arnold Hofstadt of the county of Park, in the Territory of Colorado, have made, constituted and appointed, and by these presents do make, constitute and appoint Anthony Bohlscheid, of the county of Arapahoe, in the Territory of Colorado, my true and lawful attorney for me and in my name, place and stead, to sell and convey by warranty deed, or deed of trust, or by deed of mortgage, or to lease for one or more years, not exceeding three, as my said attorney may deem most advisable or proper in the premises, all of that portion of lots numbered thirty (30) and thirty-one (31) and thirty-two (32) in block B, in the east division of Denver City, giving and granting unto my said attorney full power and authority to sell and convey the aforesaid described lands by warranty deed or deed of trust, or deed of mortgage, or to lease and rent for one or more years, not exceeding three, as my said attorney may deem most advisable or proper in the premises and to that end to sign my name to any conveyance or lease he may make to said lands, and 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 substitution and revocation, and an attorney under him to appoint, if necessary, in the premises, hereby ratifying and confirming all that my said attorney or his substitute shall lawfully do or cause to be done, by virtue hereof.

In witness whereof I have hereunto set my hand and seal the 14th day of July, A. D. 1873.

(Signed) ARNOLD HOFSTADT.'

'Signed, sealed and delivered in presence of A. M. James, and duly acknowledged before a notary.'

THATCHER C. J.

In December, 1872, Adeline Groulough, being seized of the premises in dispute, united with her husband in conveying the same to Arnold Hofstadt and Zevirah Bohlscheid. The vendees paid $1,300 cash, and executed a mortgage on said property to secure the payment of $900, being the balance of the purchase-money. This mortgage will hereafter be referred to as the Groulough mortgage. In July, 1873, Arnold Hofstadt, having removed from Denver, executed a power of attorney to Anthony Bohlscheid, the husband of his copurchaser, empowering him to sell and convey by warranty deed, or deed of trust, said premises. In August, 1873, Anthony Bohlscheid procured a loan of $2,000 from Abraham A. Hammond for which sum he executed his individual note, the payment of which was secured by trust deed on said premises executed by Zevirah Bohlscheid and Anthony Bohlscheid, her husband, and by Arnold Hofstadt, through Anthony Bohlscheid, his attorney, in fact. Although the sum borrowed was $2,000, Bohlscheid received but $1,300, the remaining $700 being placed in the hands of A. S. Blake, Esq., the trustee named in the deed, to be paid by him upon the Groulough mortgage, as soon as a certain suit against the premises then pending in the district court of Arapahoe county, in which Adeline Groulough and Joseph Groulough et al. were defendants, should be decided in their favor.

In January, 1874, Arnold Hofstadt and Zevirah Bohlscheid sold and conveyed said premises to Caroline Nippel, the incumbrances created by the mortgage and deed of trust not having theretofore been released. June 2d, A. D. 1875, the Groulough mortgage was foreclosed pursuant to a decree of court, and Mrs. Mary B. Hammond, relict of her husband, Abraham A. Hammond, being then dead, bought the property at the foreclosure sale and received from the master in chancery a certificate of sale therefor.

By her bill the complainant seeks the cancellation of the trust deed and the redemption of the property from the master's sale.

Our first inquiry will be directed to a consideration of the power of attorney under which Anthony Bohlscheid acted in executing the deed of trust.

By the power of attorney, Anthony Bohlscheid was authorized 'in the name, place and stead' of his principal 'to sell and convey the premises by warranty deed, or deed of trust, or by deed of mortgage, as he might deem advisable.' The trust deed was executed for the sole purpose of securing the individual note of Anthony Bohlscheid. It is recited in the deed that 'Anthony Bohlscheid has executed one promissory note, payable to the order of A. A. Hammond.'

All written powers are to be somewhat strictly construed. An agent's authority to act must be found in express words or by necessary implication in the power.

If the agent transcends the prescribed limits of his authority, the act is nugatory. By an inspection of the record, Mr. Hammond could have learned the extent to which and the purpose for which Anthony Bohlscheid was empowered to act by virtue of the letter of attorney, and of its legal effect he was bound to take notice at his peril. There is neither in terms nor by implication any delegation of authority to the attorney to incumber the property for the benefit of any other person than his constituent. The power conferred is clearly a power to act for, in the name and for the benefit of the principal. A general power to incumber real estate without declaring for whose benefit it may be incumbered, will not warrant the attorney in incumbering it for the benefit of himself or any third person. It hence results that the deed of trust was ineffectual to convey Arnold Hofstadt's interest in the premises described therein.

It is attempted to invalidate the trust deed as to Mrs. Bohlscheid's interest on the ground that the certificate of acknowledgment is defective. The objections necessary to consider are:

First-That the notary public did not make known to Zevirah Bohlscheid the 'effect' of the trust deed.

Second-That said certificate does not state that the notary examined the said Zevirah Bohlscheid 'out of the presence' of her husband.

Third-That the officer does not certify that Mrs. Bohlscheid was proved by the oath of some competent, credible witness to be the identical person who executed the deed.

The notary, after certifying that Zevirah Bohlscheid and Anthony Bohlscheid personally known to him as the persons whose names were subscribed to the trust deed, appeared before him in person and acknowledged that they signed, sealed and delivered the same as their free and voluntary act, proceeds in his certificate as follows: 'And the said Zevirah, wife of the said Anthony Bohlscheid, having been by me examined separate and apart, and out of hearing of her husband, and the contents and meaning of said trust deed having been by me made known, and fully explained to her, acknowledged that she had freely and voluntarily executed the same and relinquished all her right, title and interest to the lands and tenements therein mentioned, without compulsion of her said husband, and that she does not wish to retract the same.'

As will be observed, instead of the statutory words, 'out of the presence,' the certifying officer uses the word, 'out of hearing,' and omits the statutory word 'effect' after the words 'contents and meaning.' R. S., p. 111, s 17.

The language of section 17 is: 'Married women may convey their estate in lands by uniting with their husbands in any conveyance thereof, and acknowledging the same separate and apart from their husbands, and the officer hearing such acknowledgment shall certify that the same was made upon examination separate and apart from, and out of the presence of the husband of such woman, that the contents, meaning and effect of such deed were by him fully explained to her.'

Is the omission of the words, 'out of the presence of,' fatal to the acknowledgment? There must be a substantial, though not necessarily a literal compliance with the statute. If the substituted words employed, considered in connection with the entire acknowledgment, do not reasonably import that Mrs. Bohlscheid was examined 'out of the presence' of her husband, the acknowledgment would be insufficient. Within the intent of the section just quoted the words, 'separate and apart from,' evidently include in their meaning 'out of the presence.' The section in terms declares that the married woman shall acknowledge the deed 'separate and apart from her husband,' omitting the words out of the presence. That the legislature intended by this language that the acknowledgment should be taken in the absence of the husband is apparent from the subsequent part of the section, which directs that the officer taking such acknowledgment shall certify that the same was made upon examination, separate and apart from, and out of the presence of the husband. By no rational construction can it be said that when a husband is in the presence of his wife, that she is separate and apart from him. Accordingly it is held, where an examination of the wife is required by statute to be made 'separate and apart from her husband,' that such examination must necessarily be out of the presence and hearing of the husband. McCandless v. Engle, 51 Penn. St. 309.

The supreme court of the United States, in the case of Deery v. Cray, 5 Wall. 807, held that a certificate to the effect that a married woman was examined apart from her husband, can mean nothing less than 'that the husband was not present when she was examined.' The officer certifies that the contents and meaning of the deed were made known and fully explained to Mrs. Bohlscheid. With knowledge and full explanation of the contents and meaning...