Pease v. Pilot Knob Iron Co.

• Decision Date: 31 October 1871
• Citation: 49 Mo. 124
• Parties: CLAUDIUS A. PEASE, Plaintiff in Error, v. PILOT KNOB IRON COMPANY, Defendant in Error.
• Court: Missouri Supreme Court

49 Mo. 124

CLAUDIUS A. PEASE, Plaintiff in Error,

v.PILOT KNOB IRON COMPANY, Defendant in Error.

Supreme Court of Missouri.

October Term, 1871.

Error to Second District Court.

Emerson & Dillingham, for plaintiff in error.

A power may be executed without reciting or even referring to it if the act shows that the donor had in view the subject of the power. (18 Kent's Com. 333; 2 Bro. C. C. 303; 2 H. Bl. 139; 6 Coke, 17; 8 Tenn. 118; Bradish v. Gibbs, 3 Johns. Ch. 551.)

The deed which Rolfe and Jamieson executed to Van Doren was a good execution of the power. The fee was in them. It was not a sale of Johnson's land. It was a sale of their own, and it was not necessary for them to refer to the deed to them. This is only necessary in the execution of a naked power, but not where the fee vested in the parties as it did here. Rolfe and Jamieson had no interest in the land except what was acquired by the deed from Johnson, hence they could sell no interest except the fee which they acquired from him. They were either executing the power, or their deed or act was a nullity, selling and conveying as they did to Van Doren. Their act is either good as the execution of the power, or is utterly void. Hence, as they acted conformably to the power, as they only sold and conveyed what they were authorized to sell and in the manner they were empowered to sell, the law presumes it was the execution of the power, though no reference to the power was made in the deed they executed to Van Doren. The question is one of intention. That they intended to execute a power is clear, for their act could be effectual for no other purpose. They had no interest in the land in controversy aside from the deed from Johnson, which they could convey. (2 Washb. Real Prop. 320, § 14; id. 325, § 33; 1 Pars. Sel. Cas. Eq. 440-2.) And where the question is between holding a deed to be a nullity or giving it effect by construing it to have been made in the execution of a power, the courts will hold it to have been so executed and been valid. (Sto. Eq. Jur., §§ 169, 1062, and notes; 2 Washb. Real Prop. 335, §§ 1, 2, 3; 4 Kent's Com. 332, 343.)

Rolfe had no interest in any of the other land described in the deed, and he could alone convey under this deed from Johnson; “either of them,” says the mortgage.

P. Pipkin, for defendant in error.

I. Where the trustee does not recite his authority, it will be construed to convey his interest, and not to be an execution of the power. (2 Washb. Real Prop. 325, § 33.) A collateral power must be strictly construed. (2 Hill. Real Prop. 558, § 2.) The general rule is that a power may be executed without reciting or even referring to it, provided it appears that the subject of the power was in the view of the party. ( Id. 564, § 47.) Rolfe and Jamieson convey by warranty the land in controversy, together with another tract, to Van Doren. They sell all their right and title. No reference is made to the deed of trust from Johnson, nor to the debt secured by it. The deed of trust provides that a sale may be made at public auction on ten days' notice, or, at the option of the trustees, at private sale. If the sale be considered as relating to the powers, what power was executed? what sale was made, public or private? The deed purports to convey their title, not Johnson's, and therefore the presumption is that only such title as they had, they conveyed. (2 Washb. 325, § 33.)

II. The mortgage debt being paid, the mortgage was discharged. There was no title in Rolfe and Jamieson upon which their deed could operate. (1 Washb. 56, 561.)

BLISS, Judge, delivered the opinion of the court.

The plaintiff brings ejectment and claims title through a mortgage executed in 1835 by James C. Johnson to James H. Rolfe and Andrew Jamieson, and a subsequent conveyance by the mortgagees. The defenses are, first, that Rolfe and Jamieson's deed conveyed no title; and second, the statute of limitation.

Johnson was the tax collector for Washington county, and Rolfe and Jamieson were sureties upon his official bond. The mortgage was given to indemnify them as such sureties, and it gave the mortgagees power to sell upon default, either at auction or private sale.

In 1836 Rolfe and Jamieson executed to J. L. Van Doren a warranty deed of the forty acres in dispute, together with an adjoining forty acres belonging to Jamieson; but no allusion was made to the power, and there was nothing to indicate the nature of the interest they had in the premises. This and the subsequent conveyances constitute the same chain of title given in Pease v. Lawson, 33 Mo. 35, although the land there in controversy was the adjoining forty acres belonging to Jamieson, whose right to sell was undisputed.

It becomes necessary to consider first whether the conveyance by Rolfe and Jamieson was an execution of the power, and, if not, what was the legal effect.

In executing a power of sale, the conveyance, to be regular, should recite or refer to the power. This is the rule, and conveyancers should not disregard it. Still the omission of such recital or reference will not vitiate an attempted execution, provided it be plain that it was the intention of the party to execute the power. It is a question of intention as shown by the instrument. It is presumed that one who executes a conveyance designs to perform a valid and effective act; hence the ordinary test, that if the instrument would be wholly inoperative, unless taken as an execution of the power, the maker will be considered as having intended to execute...