CARUTHERS V. HALL.

several defendants, referred to Wal. Ch. 459; Saxton, 413; 2 Green Ch. 125; 1 Johns. Ch. 447; 5 Johns. Ch. 235; 1 Green Ch. 396; 8 Barb. 9; 24 Barb. 135; 3 Halst. Ch. 509.

CAMPBELL J.:

The bill in this case was filed to foreclose a mortgage made by Wellington Johnson and wife to complainant. Hall, who is a subsequent purchaser, answered, showing that the mortgagor had conveyed a part of the mortgaged premises to one Lucina Redson subject to the entire mortgage, which the deed declared she was to pay; and that his own purchase was made subsequently. He claimed that in decreeing a sale the Court below should require the portion of the land sold to Mrs. Redson to be first offered, and that his portion should only be resorted to in case of deficiency. The evidence shows without contradiction that a sale in this order would not prejudice. complainant. The Court below declined to protect his priority, and Hall appealed.

There can be no doubt of the right of the defendant Hall to have this course taken. The case of Mason v. Payne, Wal. Ch. 461, fully settles the doctrine, which is a very familiar and reasonable one. The objection that a cross bill was necessary, is not well taken. The defendant does not seek any affirmative relief, neither does he seek to deny or destroy any right of the complainant, to whom, upon the case as presented, the order in which the parcels are sold must be a matter of indifference.

The decree of the Court below must be so modified as to require the sale of Hall's premises to be postponed, so that the remainder be first offered and sold. The appellant is entitled to the costs of this Court, but not of the Court below.

The other Justices concurred.

10 MICH.-D.

DAVENPORT . PARSONS.

Jesse Davenport v. Aaron Parsons Jr.

To make a valid deed under a power of attorney, it is essential that there should be an intention on the part of the attorney to execute the deed under and by virtue of the power; or at least that the contrary intention should not appear.

Where a deed purported to be made by attorneys under a

power from the two grantors, and there was some testimony that a joint power had existed, but it was not given in evidence, and only a separate power from one of the grantors was proved, it was held that the execution of the deed could not be referred to this separate power, and the deed sustained as the deed of the grantor who had executed such separate power.

Heard November 6th and 7th, 1861. Decided April 22d.

Error to Lapeer Circuit.

Action of ejectment by Parsons against Davenport. On the trial, plaintiff traced title to the premises in controversy to Thomas Emerson, Frederick Pettis and Richard H. Morris, by deed dated Jauuary 30, 1837, and which granted them "to the said party of the second part and to the survivors or survivor of them (not as tenants in common, but as joint tenants, with right of survivorship), his heirs and assigns forever;" habendun "to the said party of the second part, and to the survivors or survivor of them, and to his heirs and assigns forever." A written stipulation of the parties was then given in evidence, admitting that the grantees named in said deed died, said Morris in November, 1837, said Pettis in November, 1838, and said Emerson in February, 1853; that Emerson left three heirs at law, who in July, 1857, gave a deed of the premises to Lewis R. Morris, and "that said defendant is in possession of said premises, and that the signatures to a certain paper purporting to be a power of attorney from Thomas Emerson, Richard II. Morris and Frederick Pettis, to Curtis Emerson and Royal H. Waller are genuine." Plaintiff then put in evidence the record of a deed of the premises from Lewis R. Morris to himself, and rested.

The defendant then called as a witness Curtis Emerson, who testified to the existence of a power of attorney from

DAVENPORT V. PARSONS.

wife, to the witness and summer of 1837, and its

Thomas Emerson and Lucy his Royal H. Waller, dated in the loss; that when this power of attorney was in his pos session, he had also in his hands another power of attor ney executed by said Thomas Emerson, Frederick Pettis and Richard H. Morris, constituting witness and said Royal H. Waller as their attorneys, and that he believed a paper produced and shown to him upon the stand, was substantially a copy of the first mentioned power of attor ney. This copy was then given in evidence. It bore date June 13, 1837, and empowered the attorneys named, among other things "to sell and dispose of absolutely, in fee simple or otherwise," "all and singular the premises in any manner belonging unto the said Thomas Emerson, whether in severalty, in common, or in any other way or manner" within the State of Michigan, "and to sign, seal and deliver such deeds and conveyances as said attorneys shall unitedly think fit and expedient."

The above was all the testimony given on the trial relating to the authority of Curtis Emerson and Royal H. Waller to act as attorneys for said Thomas Emerson and Frederick Pettis or either of them.

The defendant then offered to read in evidence from the records of deeds of Lapeer county what purported to be the record of a deed of the premises in controversy, as follows:

"This indenture, made the 27th day of December, A. D. 1837, between Thomas Emerson and Frederick Pettis, of Windsor, in the county of Windsor, and State of Vermont, of the first part, and Frederick Pettis, of Windsor aforesaid of the second part, witnesseth:" [The deed is then in the common form of warranty deeds to the attestation clause, which is as follows]: "In witness whereof the said Thomas Emerson and Frederick Pettis, have hereunto set their hands and seals the day and year first above written. THOMAS EMERSON, [SEAL.] FREDERICK PETTIS, [SEAL.]

DAVENPORT V. PARSONS.

By their Attorneys who sign in virtue of a power of Attorney,

The following certificate of acknowledgment was attached: STATE OF MICHIGAN, SS.

COUNTY OF WAYNE, S

On the twenty-eighth day of December, one thousand eight hundred and thirty-seven, before me a Notary Public for said county, personally came the above named R. H. Waller and Curtis Emerson, known to me to be the persons who executed the foregoing instrument, and acknowledged the same to be their free act and deed.

GEO. G. BULL,

Notary Public, Wayne County, Michigan.” To the introduction of this record as evidence the plaintiff objected:

1st. Because there did not appear or purport by the record thereof to be any acknowledgment of said deed, by the grantors or otherwise, sufficient to entitle it to record.

2d. Because the power of attorney, as proved, did not authorize the making or acknowledging of such deed by said attorneys, and consequently no title of the grantors. named therein could be established thereby.

3d. Because it was manifest from the terms of the deed, that the same was not made under the power of attorney given in evidence, but purported to be made under a joint power given by said Thomas Emerson and said Pettis, and no testimony was given to establish such joint power.

4th. Because such deed, if executed in the manner and form appearing by said record, conveyed no title, the grantee therein named being one of the grantors.

Which objection was sustained, and the record excluded; and the plaintiff had judgment.

DAVENPORT V. PARSONS.

C. I. Walker, for plaintiff in error:

:

1. It is unquestionably true as a general rule that a deed, executed by an attorney, must be executed in the name of the principal, and this for obvious though technical reasons. It is the principal whose property is to be conveyed, or who is to be bound by the act; and it must appear upon the face of the papers, that it is his act by the attorney, and his seal; and not the act and seal of the attorney-10 Wend. 88; 4 Hill, 351; 2 Cush. 337; 12 S. & M. 542. But this rule is to receive a liberal construction, so as, if possible, to sustain the deed:-7 N. H. 475; 10 Ibid. 490; 5 Gratt. 119; 8 Ibid. 241; 2 McMullen, 407; 21 Ala. 72. And in case of public agents they may convey in their own names: - 5 N. H. 510; 18 Mo. 227. The acknowledgment rests upon no such principles. It is no part of the deed, but a mode provided by the statute for its authentication to entitle it to record, so as to make it constructive notice.

By the statute, a deed was to be acknowledged by the grantor, or proved, &c., "as hereinafter provided:"Laws of 1833, p. 280 § 1. It is afterwards provided that a deed shall be acknowledged by the party executing the same: - Ibid. § 2. When a deed is made by an attorney, it is the deed of the principal, executed in his name, but by the attorney. The principal executes the power. That is his free act and deed, but the deed is the act of the attorney under the power. It is by his free will that this is executed, and his mind and his alone acts at the time of the acknowledgment. The acknowledgment of this act is, and must be, that of the attorney, and may be done in his own name. See Curtis' Conveyancer, No. 3; 6 Paige, 60; 3 Barb. 208, 240; 22 Vt. 274, 286; 11 Ala. 977; 1 H. & McH. 146; 1 Humph. 54; 3 Ind. 203, 207.

In some of these cases the description of their representative character is appended to the name of the attorneys in the acknowledgment, but this does not affect the question