Vanada's Heirs v. Hopkins' Adm'r

• Decision Date: 20 April 1829
• Citation: 24 Ky. 285
• Parties: Vanada's Heirs v. Hopkins' Adm'r, & c.
• Court: Kentucky Court of Appeals

24 Ky. 285

Vanada's Heirs v. Hopkins' Adm'r, & c.

Court of Appeals of Kentucky.

April 20, 1829

Power of Attorney. Specific Performance.

ERROR TO THE HENDERSON CIRCUIT; ALNEY M'LEAN, JUDGE.

Crittenden and Denny, for plaintiffs.

Mayes for defendant.

OPINION

ROBERTSON JUDGE:

The chief question in this cause, turns on the validity of the acts of Samuel Hopkins, deceased, acting in the character of attorney in fact, for Walter Alves. On the 27th of September 1807, Alves executed a power of attorney, vesting authority in Hopkins, to sell 494 3-4 acres of land, in Henderson's grant; " also, all his, said Alves' part, or share of the north-west quarter section of lot No. 5, north of Green river, in said grant, being the same that was allotted to James Hogg, by the company in the deed of partition forty-one forty-eighth parts thereof, being by him conveyed to George Hogg, and by him to said Alves. The deeds which show the above conveyances, being recorded in the office of Henderson county, the legal title to the remaining seven forty-eighth parts still remaining in the heirs and representatives of said James Hogg, of whom said Walter is one, & c." The power proceeded as follows: " and I authorize my said attorney to sell my said forty-one forty-eighths of said lot, say 845 acres, as it is at present undivided, or to obtain any equitable division thereof agreeably to law, and sell it all together or partially, as he may think best; and I further empower said Samuel Hopkins, to sell for credit or otherwise, and for such sums of money as he may think proper, and I do hereby bind myself to ratify and confirm whatever my said attorney shall legally do in my name, in virtue of the premises." On the 13th of October, 1808, said Hopkins " for himself, and as attorney for Walter Alves," entered into a contract with Martin Vanada and Charles Winpee, in which it is stated that " Hopkins, for himself and as attorney, & c. hath sold all the land they own or possess in Henderson's grant, in lot No. 5, on the north side of Green river, lying north-east of a line to be run across the said lot, No. 5, to begin at Griffith's pond, & c. The agreement further says, " Samuel Hopkins obliges himself his heirs, & c. for himself and as attorney as aforesaid, to make or cause to be made to them, (to-wit: Vanada and Winpee), a good title, in fee simple, to the said lands, with general warranty, and it is signed and sealed thus, " Samuel Hopkins for himself, and as attorney for W. Alves," (seal). The contract between Hopkins for himself and as attorney in fact for Alves, and Vanada and Winpee, does not specify any certain quantity of acres, as having been sold, but Vanada and Winpee were to have all the land owned by Hopkins and Alves, included within the boundaries of lot No. 5, lying north-east of a line to run across said lot No. 5, " to begin in Griffith's pond," & c. A survey having been executed to ascertain the quantity, it was found that there were 325 acres, which the bill alleges were sold by Hopkins, as attorney in fact for Alves. Hopkins and Alves being dead, and neither having conveyed the land to Vanada, (who by a division of the land, jointly bought by him and Winpee, had become entitled to the said 325 acres), he filed his bill against the heirs of Alves and Hopkins, and the administrator of Hopkins, with a view to have a specific exemption of the contract, and for general relief.

Bill, filed for specific execution of a contract, made by Hopkins, for himself, and as attorney of W. Alves, with the ancestor of complainant's statement of the facts, power of attorney, and contract.

The heirs of Alves do not resist a specific execution of the contract, upon any plausible ground, other than the want of authority on the part of Hopkins, under his power, to bind them or their ancestor, by the contract as made and entered into with Vanada and Winpee. The points relied on by them are: 1st. That the power of attorney did not authorize Hopkins to sell less than Alves' entire interest in lot No. 5, without first having procured a division and a severance of his interest from that of his co-tenants; in which event it is conceded he might have sold less than the entire interest. And, 2d. That the contract as signed by Hopkins, does not impose any obligation on them or their ancestor.

Grounds upon which the heirs of Alves resist specific performance.

In relation to the first point, the defendants, heirs of Alves, insist that Hopkins departed from and exceeded his power, and consequently, that his acts are void. We readily admit, that whatever act an agent does, unauthorized by the authority vested in him, is not binding on his principal, and we also concede that agents may be limited and restricted to specified and particular acts, so that they may be deprived of all discretion. To enforce these doctrines, it was useless to cite authority. They are based upon the common sense of all men, and engrafted in every civil code; and were it otherwise, the principal's most valuable rights might be sacrificed by the ignorance or wickedness of an agent, in whom the principal had no intention to vest any discretion, or to give any power but to carry into effect positive instructions. Whenever one man presents himself as the agent of another, it is the duty of all who may have transactions with him, in his representative character, to inquire into the extent of his authority, and they must deal with him at their peril. But all powers conferred must be construed with a view to the design and object of them, and the means most usual and proper for carrying their design and object into effect, having respect to the language which the maker of the power employs, to convey his meaning and intent.

Rule as to validity of the acts of agents. Duty of those dealing with them; powers of attorney to be construed.

The language of all nations is liable to fluctuate with the changes that take place, in the progress of time, in their affairs and condition. A word or a phrase which has a definite meaning, and which will be universally understood in the same sense by all who speak the language, from various causes, may loose its original signification, and ultimately have a meaning attached to it, essentially different. It is the duty of courts to take notice of these mutations in language. Without doing so, they can not observe the great and paramount rule of effectuating the intentions of men in all their transaction. Accordingly, in the case of Lampton v. Haggard, 3 Monroe, 149, this court have interpreted the expressions " Kentucky currency" and " currency of the state," which are equivalent, to mean very different things at different times.

The court will notice fluctuations & mutations, in language.

Had Hopkins authority vested in him, by the power to sell less than the entire interest of Alves, in lot No. 5? If he had not, then he has conferred no right on Vanada, and imposed no obligation on Alves. The question must be answered by construing the power according to the rule prescribed, that is, with a view to the design and object of the power, and the means most usual and proper for carrying the design and object into effect, ascertaining these by the popular signification of the language employed at the date of the power, by its maker, to convey his meaning. The first sentence in the power, relative to lot No. 5, authorizes Hopkins to sell all Alves' part or share of the northwest quarter section of lot No. 5. Were this the only sentence in relation to this land, there could be no doubt of Hopkins' authority to sell, not only the forty-one forty-eighths, conveyed to him by George Hogg, but also the interest he held in the residue, as one of the heirs of James Hogg. By subsequent sentences, the power states that the attorney may sell forty-one forty-eighths of said lot, say 845 acres, as it was undivided, or to obtain a division and sell it altogether or partially, as he may think best. It is contended that those last sentences qualify the first, and deny to the attorney the power to sell the interest of Alves, held as one of the heirs of James Hogg, and also confine the attorney to making a sale of the whole 845 acres, as it stood, undivided, at the date of the power, to one or more purchasers, in a single contract, at the same time, or to a sale of Alves' interest altogether, or in parcels, after a division shall have been obtained.

The power of attorney to Hopkins, examined.

There is no express declaration on the face of the power, which shows an intention on the part of Alves, to limit and restrict, by these latter sentences, the operation of the grant of the power in the first instance, to sell the entire interest. The argument in favor of such restriction, is founded on the supposition that the authority to sell, in the particular manner pointed out, excludes the idea that a sale can be effected in any other way. We are of opinion that the maxim " expressio unius est exclusio alterius, " does not apply. Such a construction would tend to nullify the grant of power to sell the entire interest, first given, which does not prescribe any rule for the government of the attorney, in selling. All the grants of power can stand together by a construction of the instrument giving effect to all its parts, and one more congenial with the intention of Alves, to be collected from considering the general import of the whole instrument, than that contended for by the appellee's counsel. It is this, as authority had been previously given, without any restriction, to sell 494 3-4 acres, part of Thomas Hart's lot, No. 7, and as the first sentence in relation to his, (Alves') interest in lot No. 5, is equally extensive, and as the authority to sell both is so far...