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]"
Page 86 U. S. 607
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,"
&c.
"[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.
Page 86 U. S. 609
MR. JUSTICE FIELD delivered the opinion of the Court.
In February, 1866, Ben Holladay and his wife gave to one Hughes
a power of attorney to sell and convey certain real property,
situated in Denver City, in the Territory of Colorado, the title to
which was stated in the power to be in Holladay. In September
following, Hughes sold and conveyed in the name of Holladay alone,
and as his attorney, the premises in controversy. The question
presented is whether the deed thus executed in the individual name
of Holladay, and not in the joint names of himself and wife, was
sufficient to pass his title.
In most of the states a married woman cannot, in the absence of
statutory authority, execute, either alone or in connection with
her husband, a valid power of attorney to convey her interest in
real property. She can pass her interest only by uniting personally
in a conveyance with her husband, and acknowledging upon a separate
examination apart from him, before a public officer, that she
executes the conveyance freely, without any fear of him, or
compulsion from him. The private examination is required to protect
her from the coercion or undue influence of her husband, and her
acknowledgment is therefore considered as an essential preliminary
to the validity of any transfer by her. The private examination is
in its nature personal; it is a matter in which she cannot be
represented by another. A privy acknowledgment by attorney, as
observed by Bishop, [
Footnote
1] would seem to involve a contradiction, and certainly would
in a great degree defeat the object which her personal examination
was intended to secure. [
Footnote
2]
Whether any statute exists in Colorado which authorizes a
married woman to convey her interest in real property by
Page 86 U. S. 610
attorney we are not informed. Counsel, whose attention was
called on the argument to the matter, were not aware that any such
statute exists.
Assuming, however, that such statute does exist, or that,
without any such statute, the authority of a married woman to
convey, in connection with her husband, which is conferred, implies
a power to appoint an attorney for that purpose -- and there are
adjudged cases which proceed upon that theory -- we do not see any
objection to the validity of the deed actually executed in the name
of Holladay alone, or to its operation in passing the title. The
wife of Holladay evidently joined in the power upon the supposition
that she might, in case of surviving her husband, have a right of
dower in the real property of which he was seized during her
coverture, and that the release of such right might be required for
an advantageous sale of the property. But in fact she could not in
any event have had a right of dower in his real property in
Colorado after its sale by him, although she did not unite in the
sale. By a statute of that territory the right of dower of the
widow attaches only to lands of which the husband dies seized. Her
joint execution with him, whether in person or by attorney, of the
deed of the premises in controversy, would not therefore have
imparted any greater interest, present or prospective, than his
separate conveyance.
Undoubtedly it is a rule that a special power of attorney is to
be strictly construed, so as to sanction only such acts as are
clearly within its terms; but it is also a rule of equal potency
that the object of the parties is always to be kept in view, and
where the language used will permit, that construction should be
adopted which will carry out, instead of defeating, the purpose of
the appointment. Here the object, and the sole object, of the power
was to enable the attorney to pass the title freed from any
possible claim of the wife, and under the law of Colorado, that
result could be accomplished by the deed of the husband alone as
fully without as with her signature.
A power of attorney created by two or more persons
possessing
Page 86 U. S. 611
distinct interests in real property may, of course, be so
limited as to prevent a sale of the interest of either separately;
but in the absence of qualifying terms, or other circumstances,
thus restraining the authority of the attorney, a power to sell and
convey real property, given by several parties, in general terms,
as in the present case, is a power to sell and convey the interest
of each, either jointly with the interests of the others, or by a
separate instrument. The cases are numerous where a power given by
several has been held invalid as to some of the parties, and yet
sufficient to authorize a transfer of the title of the others. The
decision of those cases has proceeded on the doctrine stated, that
where a power is given by several the interest of each in the
property, to which the power refers, may be separately
transferred.
It is proper to state that in sustaining the deed executed in
the present case we confine ourselves to its operation in passing
the existing title of Holladay. It contains a covenant of general
warranty, and we express no opinion on the question whether the
power authorized the attorney to make any such covenant for his
principal.
Judgment affirmed.
[
Footnote 1]
On the Law of Married Women, ยง 602.
[
Footnote 2]
Sumner v. Conant, 10 Vt. 19;
Mott v. Smith, 16
Cal. 533;
Lewis v. Coxe, 5 Harrington 401.
