Holladay v. DailyAnnotate this Case
86 U.S. 606 (1873)
U.S. Supreme Court
Holladay v. Daily, 86 U.S. 19 Wall. 606 606 (1873)
Holladay v. Daily
86 U.S. (19 Wall.) 606
A power of attorney to sell and convey real property, given by a husband and his wife in general terms, without any provision against a sale of the interest of either separately, or other circumstance restraining the authority of the attorney in that respect, authorizes a conveyance by the attorney of the interest of the husband by a deed executed in his name alone.
The statute of the territory just named regulating the subject of dower enacts that "a widow shall be endowed of the third part of all the lands whereof her husband shall die seized of an estate of inheritance."
This statute being in force, and Ben Holladay being, as it seemed, owner in fee of a piece of land there, he and his wife executed a power of attorney to one Hughes to sell it. The power ran thus:
"Know all men &c., that we, Ben Holladay and N. A. Holladay, his wife, have constituted and appointed B. M. Hughes our true and lawful attorney in fact, for us and in our names to sell and convey all or any lots of ground in said territory, the title to which is now vested in said Ben Holladay; and the said Ben Holladay and N. A. Holladay, his wife, do hereby authorize said, Hughes to proceed to sell said property on such terms as he may consider best for their interest. And it is provided that in case of the death of either of the said parties making this power of attorney, no further power shall be necessary to our said attorney in fact and agent, to enable him to complete conveyances for property then sold, or to proceed to sell the same or any part thereof thereafter; but he shall proceed, notwithstanding, to sell and convey said property until the same is all disposed of by him. Hereby ratifying and confirming all that the said Hughes may do and perform in the premises under this power of attorney to him given, we have hereunto set our hands and seals this 13th February, A.D. 1866."
"BEN HOLLADAY [SEAL]"
"N. A. HOLLADAY [SEAL]"
In September of the year in which the power was executed, Hughes made a conveyance of some of the land meant to be conveyed. The deed began thus:
"This indenture, made this 27th day of September, A.D. 1866, between Ben Holladay, of the city and state of New York, by B. M. Hughes, his duly authorized attorney in fact, party of the first part, and Richard Whitsitt, of the City of Denver, Territory of Colorado, party of the second part, witnesseth &c.:"
"That the said party of the first part, for and in consideration of the sum of $30,000 &c., has granted, bargained, sold, and conveyed,"
"[Here followed a description of the premises. The deed ended thus:]"
"And the said party of the first part, the aforesaid pieces, parcels, or lots of land unto the said party of the second part, his heirs and assigns, against the claim or claims of all and every person whatsoever, doth and will warrant and forever defend by these presents."
"In witness whereof the said party of the first part has hereunto set his hand and seal the day and year first above written."
"BEN HOLLADAY [SEAL]"
"By his attorney in fact:"
"B. M. HUGHES [SEAL]"
The possession of the land passed from Whitsitt on one Daily, and in December, 1870, Ben Holladay, alleging that he had never received any of the consideration money recited in the deed, sued Daily to recover possession of the land.
The only question was the sufficiency in law of the power of attorney from Ben Holladay and wife to Hughes, and the deed thereunder made from Holladay by Hughes, his attorney in fact, to Whitsitt, to pass the title of the said Holladay in the land to the said Whitsitt.
The court below gave judgment for the defendant, and the plaintiff the case here on error.