Posner v. Bayless

• Decision Date: 13 July 1882
• Parties: SAMUEL POSNER and ELIAS POSNER, trading as POSNER BROTHERS v. WILLIAM H. BAYLESS, Trustee.
• Court: Maryland Court of Appeals

59 Md. 56

SAMUEL POSNER and ELIAS POSNER, trading as POSNER BROTHERS v. WILLIAM H. BAYLESS, Trustee.

Court of Appeals of Maryland

July 13, 1882

APPEAL from the Circuit Court of Baltimore City.

The case is stated in the opinion of the Court.

The cause was argued before MILLER, STONE, ALVEY, and IRVING, J.

M R. Walter, for the appellants.

Orlando F. Bump, for the appellee.

MILLER J., delivered the opinion of the Court.

The appellants having become purchasers at trustee's sale of certain leasehold property in the City of Baltimore, sold under a mortgage of the same by Luke Z. Barrett to Thomas S Hughes, dated the 22nd of September, 1880, filed an exception to the ratification of the sale upon the ground that Barrett had no title to the property when he executed this mortgage. The facts upon which this exception is founded are as follows:--

The property was purchased in 1834 by Maurice Barrett, and on the 15th of April, 1880, he and his wife, residing in the County of Galway, Ireland, gave a power of attorney to their son Luke Z. Barrett, of Baltimore, by which they constituted him "our true and lawful attorney, for us, and for each of us, and for our proper use and benefit, and also for the use and benefit of each of us severally, to sell, transfer and assign unto any person or persons whatsoever, and for such price as our attorney shall think fit, all or any property of whatsoever description held or owned by us, or either of us, in the said City of Baltimore, or in his discretion, to borrow money in his own or our names, and to pledge said property by way of mortgage to secure the repayment of the same, and interest thereon, or in our name to lease said property, or any of it upon such terms and upon such conditions and times as our said attorney may determine. And also for us, and in our names, to make, sign, seal, execute and deliver all deeds or acts of conveyance that may be necessary, to sell and convey, assign, mortgage or lease said property, or any part of it, and to receive and give acquittance for the purchase money thereon, or the money which may be borrowed thereon, or the rents thereof."

On the 12th of May, 1880, the property was conveyed to Eliza H. Bealmear in fee for the consideration of $3333.33. The deed of conveyance upon its face purports to be made "by Maurice Barrett, and Catharine Barrett his wife, acting by their attorney in fact Luke Z. Barrett, under and by virtue of a power of attorney dated the fifteenth day of April, 1880, and hereunto annexed and recorded herewith," and it was signed--

"MAURICE BARRETT, [Seal.]

By his attorney, Luke Z. Barrett.

CATHARINE BARRETT, [Seal.]

By her attorney, Luke Z. Barrett."

And Luke Z. Barrett, by virtue of the power of attorney, acknowledged the deed "to be the act of the said Maurice Barrett, and Catharine Barrett, his wife, and each of their acts respectively."

On the same day Mrs. Bealmear executed a lease of the same property to Luke Z. Barrett for ninety-nine years, renewable forever, reserving an annual rent of $200, with the privilege to the lessee of redeeming the same at any time during the year commencing on the 1st of May, 1885, and ending on the 1st of May, 1886, but not afterwards, upon payment of the sum of $3333.33, and all arrearages of rent due at the time of payment.

Both these deeds were recorded at the same time, and, as appears by the oral testimony taken in the case, were executed for the purpose of enabling the parties to create this redeemable ground rent upon the property, in order to secure a loan of $3333.33, made by Mrs. Bealmer to Luke Z. Barrett. In the following September, Barrett, the lessee, mortgaged his interest in the property to Hughes, to secure a loan of $800, and it was under this mortgage that the sale in controversy was made. The two principal grounds upon which the purchasers resist confirmation of this sale and deny the title of the mortgagor are:

1st. That the power of attorney did not authorize the execution of the conveyances by which this ground-rent was created.

2nd. That even if such conveyances be within the scope of the power, still the deed to Mrs. Bealmear was not executed in accordance with sec. 27, of Art. 24, of the Code.

First. As to the first of these propositions, it is contended on the part of the appellants, that all powers of attorney must receive a strict interpretation, that the authority is never extended by intendment or construction beyond that which is given in terms, or is absolutely necessary for carrying the authority into effect, and hence the power in this case to borrow money and pledge the property therefor by...