Seeberg v. Norville

• Decision Date: 19 December 1918
• Docket Number: 1 Div. 61
• Citation: 202 Ala. 417,80 So. 621
• Parties: SEEBERG v. NORVILLE et al.
• Court: Alabama Supreme Court

80 So. 621

202 Ala. 417

SEEBERG v. NORVILLE et al.

1 Div. 61

Supreme Court of Alabama

December 19, 1918

Appeal from Circuit Court, in Equity, Mobile County; Claude A Grayson, Judge.

Suit by Rolf Seeberg against Peyton Norville and another. From a decree sustaining a demurrer to the bill, complainant appeals. Affirmed.

Bill by appellant against appellees to cancel and set aside a deed executed by appellant through his attorney in fact to respondent Peyton Norville, and to cancel the mortgage executed by Peyton Norville to respondent Ellen T. Kelly upon the property conveyed to said Norville by complainant's attorney in fact.

The bill as amended shows in substance that in June, 1912, the complainant was seized and possessed of certain real estate situated in Mobile county, which is therein described; that on said date said complainant, intending to depart from Mobile, executed to John B. Mitchell, of that city, a power of attorney, which is made Exhibit A to the bill, duly executed and acknowledged by complainant and his wife, and which contained the following provision, among others:

"Do hereby constitute and appoint John B. Mitchell Esq., of Mobile, Alabama, our irrevocable attorney in fact with full power and authority, in our names and behalf, to bargain, sell, transfer, and convey to any person or corporation whatever, and for such sum as he may obtain therefor, the following described lands situated in the city and county of Mobile: [Here follows a definite description of the land.] *** And the title purporting to be conveyed by our said attorney in fact, the said Rolf Seeberg does hereby fully warrant and will defend against all lawful claims Provided, however, that no conveyance shall be executed by our said attorney in fact without a written request to him from said N.A. Andresen & Co. of Christiana, Norway, to such effect."

It is further provided that the expenses of sale, including attorney's fee, payment of taxes, etc., shall be first paid out of the proceeds of sale, and the balance thereof shall be paid to said N.A. Andresen & Co., to whom complainant was indebted in a sum in excess of the value of the property.

The bill further charges that, notwithstanding the provisions of the power of attorney authorizing the agent to sell the property "for such sum as he may obtain therefor," it was yet the duty of said agent to use ordinary care and diligence, and not to sacrifice the property by selling it for a price greatly disproportionate to its fair and reasonable market value at the time, and that respondents were each affected with notice of said power of attorney and its contents at the time of the purchase in question; that the property was assessed for valuation from 1912 to 1918 for $750, but subsequently it was assessed at a valuation of $2,400, and that the value of the property was much in excess of said latter sum; that respondent Norville was familiar with real estate values in Mobile county, and was aware that the property was then reasonably worth on the Mobile market in excess of $2,400, for which it was assessed, and that said Norville had read the contents of the power of attorney before the date of sale; that on February 19, 1918, said Norville agreed with said Mitchell to purchase the property for a cash consideration of $600, and to take a deed executed in compliance with said power of attorney; that such sale was consummated, and the deed executed in compliance therewith, a copy of which is made an exhibit to the bill.

The deed shows its execution in strict compliance with the power of attorney, and a warranty of title as to the property conveyed,...