Scott v. M'Alpin, 4 N.C. 155, 1 Taylor 155 (1817)

July 1817 · Supreme Court of North Carolina
4 N.C. 155, 1 Taylor 155
SCOTT against M'ALPIN

SCOTT against M‘ALPIN.

Whereas attorney in fact conveys la cl in his own mme, without reference to his power or his principal, nor thing passes by the deed.

THIS is an action of trespass, quare clausum fregit, and liberum tenemenfum pleaded.

It is admitted, on both sides, that Abram Dubois, sen. of the city of Philadelphia, had a fee simple in the land in dispute, before the year 1807".

The Plaintiff deduces his title to the land, from the aforesaid Abram Dubois, sen. in the following manner, viz.

A Copy of the Records of the Court of Pleas and Quarter Sessions of the County of Robeson, in the following words :—

“ State of North-Carolina, Robeson county, Court of Pleas and Quarter Sessions, July Term, 1807. A power of attorney from Abram Dubois, sen. of the city of Philadelphia, and Mary L. Dubois, his wife, to Abram Dubois, .Jun. which did appear to have been acknowledged before Robert Wharton, Esq. Mayor of the city of Philadelphia, was produced by the said Abram Dubois, Jun. and ordered to be registered.” *

He then proved by the deputy clerk of the County Court of Robeson, that Abram Dubois, jun. made application to him for the said power of attorney : That it was delivered up, after Abram Dubois, jun.. had made the deed to Mix, and the said Abram Dubois, jun. never returned it, nor was it ever registered ; and the said Abram. Dubois, jun. left the State. He farther made it appear, that he had given notice to the Defendant’s attorney to produce the said power of attorney in Court.

The Plaintiff proved, that the power of attorney con-^ tained ample authority to Abram Dubois, jun. to sell and make title to all or any of the lands of Abram Dubois, sen. in the county of Robeson. All this testimony was objected to by the Defendant, but admitted by the Court*

*156Plaintiff then offered a deed executed in the name of Abram. Dubois, jun. to William P. Mix, dated the 31st of July, 1807, in which it is stated, that he has full power and au* thority to convey. This was opposed by Defendant, but admitted by the Court. On the 26th of August 1807, Mix conveys the land to the Plaintiff.

The jury gave a verdict for the Plaintiff; and a motion is made to set aside the verdict and enter a non suit, on k 7 the following, grounds : *

1st.' Because it does not appear, that Abram Dubois, sen. ever gave a power attorney to Abram Dubois, jun. The certificate and seal of the Mayor of the city of Philadelphia, was not a sufficient authority for the County Court to admit the deed to probate and registration.

2dly. If the power’of attorney to Abram Dubois, jun. had been legally acknowledged,, still Abram Dubois, jun. could not make any title to the land until the power of attorney was registered.

3dly. The deed to Mix is in the name of Abram Du-bois, jun. and makes no mention of Abram Dubois, sen-in whose name it should have been executed; neither is the powef of attorney mentioned in said deed.

Browne, for the Plaintiff.

Even if registration is considered as a condition precedent, to giving the power of attorney in evidence, the ob» struction of the party against whom it is to be given in evidence, shall excuse as to him and all claiming under Him*

The enacting clause of stat. 1798, c. 37, § 3, extends to all powers of attorney: and when taken in conjunction' with statute 1715, c. 38, § 7, in pari matcrie, may extend to this case, arid authorise the certificate of the Mayor of Philadelphia. The act does not even say, that the regis* tration shall be evidence. But suppose this is mot the *157fight construction. Yet the Plaintiff, on application to the Court, might have got the deed and had it regularly proved, which the Defendant hath obstructed.

But the act of 1798 does not 'require, but ctuthorise the registration of powers of attorney, leaving the party to’register or not.

A deed produced, on notice, by the adverse party, ought to be read in evidence without proof of its execution.* Nor is it necessary to prove its execution, where you have recourse to interior testimony.†

. The entry on the minute docket of the County Court is complete evidence, not only that the power was executed, but of its contents.‡

Here, however, other proof was given.

In these cases, the instruments were in the adverse party’s hands, rightfully ; but here it is far otherwise;—. and the maxim, that every thing is to be presumed in odium spoliatoris, strongly applies.

In 1 Crunch, 345, the deed was signed as here, and the Court held the obligation not to be on Dexter, but the government.§ Same in this Court,in Potts v. Lazarus,in ’ ‘ January 1815.

If a man has a power or authority, and does an act which can only be valid, by virtue of that power or au- , ? thority, he shall be presumed to have done that act under his power or authority, although he does not refer to it.ǁ So in Equity.

Daniel, J.

delivered the opinion of the Court :

We are all of opinion, that the estate, in fee simple, which was in A. Dubois, sen. remained there, and could not be divested, unless the deed had been executed in his name, by himself or by his attorney, (if he had any)» A power of attorney authorises thfe agent to make use ef *158-the name of his principal. If A. Dubois, jun. thought proper to execute a deed for land in his own name,, nothing passed by that deed, but what A. Dubois, jun. had p and, as it is admitted he had no estate himself, none could pass to Mix, under whom Plaintiff claims.

When land is conveyed by virtue of a power of attorney the purchaser is in, not from the attorney, but from the principal, who retains the estate, until one of those deeds which will pass lands, has been executed in his name by the attorney.

• Who has the title ? is the question submitted to us. We are bound to say, from the facts of the case, it is not in the Plaintiff.*

New trial granted.