Same - Power of Attorney.

A power of attorney to execute a deed is an authority given a person to act in behalf of the grantor in making a conveyance of land. Such a person is an attorney in fact. For the execution of a valid power of attorney the same solemnities are required as for the execution of a deed.221 The power of attorney must contain a description of the premises to be conveyed,222 and in many states it must be recorded.223 Powers of attorney can be created only by persons who are sui juris.224 In some states, by statute, a married woman may release her dower by power of attorney. In other states it is held that a married woman cannot give a power of attorney, even though her husband joins with her.225 One member of a firm cannot convey partnership lands without a power of attorney from the other members.226 A power of attorney may be revoked at any time, unless a consideration has been paid for it;227 but not if it is coupled with an interest, in which case the power to revoke must be expressly reserved, or none exists.228 Death of the one executing a power of attorney revokes it if it is a mere naked power. That is, one not coupled with an interest, and powers of. attorney to convey land are generally of this kind.229 The revocation of a power of attorney should be recorded if the power itself has been.230 Where a power of attorney has been given, the authority cannot be delegated unless such delegation is authorized by the power.231 A power to several cannot be executed by less than all, in the absence of a provision to that effect.232 Powers

221 Van Ostrand v. Reed, 1 Wend. (N. Y.) 424; Goree v. Wadsworta, 91 Ala.

416, 8 Sonth. 712.

222 Stafford v. Lick. 13 Cal. 240.

223 l stim. Am. St. Law, § 1624 (10).

224 Dexter v. Hall, 15 Wall. 9. 225 1 Deinbitz, Land Tit. 403.

226 Frost v. Cattle Co., 81 Tex. 505, 17 S. W. 52. 227 Macgregor v. Gardner, 14 Iowa, 326.

228 Martind. Conv. (2d Ed.) § 241; Mansfield v. Mansfield, 6 Conn. 559.

229 Jenkins v. Atkins, 1 Humph. (Tenn.) 294,

230 Morgan v. Stell, 5 Bin. (Pa.) 305.

231 Loeb v. Drakeford, 75 Ala. 464. And see Rogers v. Cruger, 7 Johns. (N. Y.) 557.

232 Cedar Rapids & St P. R. Co. v. Stewart, 25 Iowa, 115; White v. Davidson. S Md. 169.

432 title. (Ch. 16 of attorney are strictly construed,233 and a power to "sell" does not give authority to "convey." 234 A power to sell implies a sale for cash.235 Whore a deed is executed by one who has a power of attorney, it must be in the name of the grantor, and not of the agent, and the agent himself must show that he executes it for his principal, as by signing "A. [principal] by B. [agent]." 236 Some cases, however, are less exacting. A deed executed, "A. B., Agt. of C. D.," has been held a good execution of a deed in which C. D. was the grantor.237 In executing a deed by virtue of a power of attorney, the attorney must purport to bind the grantor, and not himself.238

Indentures and Deeds Poll.

Conveyances are either indentures or deeds poll. The former is an instrument executed and signed by both the grantor and the grantee. In its usual form, it is executed in duplicate. Originally the two pieces were cut apart by an irregular line, which gave the name to this form of deed. One part was given to each party, and when the deeds were produced in court the irregular margins, if they fitted, were evidence that the instruments before the court were genuine. This cutting of the margin is no longer usual, and an indenture means only a deed executed by both parties. Conveyances of this kind usually begin with the words "This indenture." 239 A deed poll on the other hand is one executed by the grantor only, and binds the grantee by its provisions only by reason of his acceptance of it. A deed poll usually commences with the words, "Know ye all men by these presents." 240

233 Geiger v. Bolles, 1 Thomp. & C. (N. Y.) 129; Brantley v. Insurance Co., 53 Ala. 554.

234 Tharp v. Brenneman, 41 Iowa, 251; Force v. Dutcher, 18 N. J. Eq. 401.

235 Lumpkin v. Wilson, 5 Heisk. (Tenn.) 555; Coulter v. Trust Co., 20 Or. 469, 26 Pac. 565, and 27 Pac. 266.

236 Townsend v. Hubbard, 4 Hill (N. Y.) 351; Clarke's Lessee v. Courtney, 5 Pet. 349.

237 Wilks v. Back, 2 East, 142. And see Devinney v. Reynolds, 1 Watts & S. (Pa.) 328.

238 Ecbols v. Cheney, 28 Cal. 157; Fowler v. Shearer, 7 Mass. 14; Bassett v. Hawk, 114 Pa. St. 502, 8 Atl. 18.

239 Martind. Conv. (2d Ed.) § 61; Finley v. Simpson, 22 N. J. Law, 311; Atlantic Dock Co. v. Leavitt. 54 N. Y. 35; Currie v. Donald, 2 Wash. (Va»> 58; Maule v. Weaver, 7 Pa. St. 329.

240 Goodwin v. Gilbert, 9 Mass. 510.

§ 266)

Requisites Of Deeds

266. Delivery And Acceptance-a deed does not become operative until it is delivered and accepted, but the delivery may be in escrow.

The delivery which is essential to the validity of a deed is the same as that required for the completion of a contract.241 A deed does not become effective until delivered,242 though an actual delivery of the paper is not necessary.243 The instrument must pass out of the control of the grantor,244 and, as to the effect of the acts of the parties, the intention governs in all cases.245 If the deed is taken by the grantee without the consent of the grantor, there is no delivery,-as where it is stolen; and the grantee cannot pass title to a subsequent purchaser 246 unless the grantor is estopped by his negligence from setting up his title against an innocent third person.247 Delivery may be made to a third person for the grantee.248 This is the case where future estates are created in the same instrument with those vesting in possession at once. The deed is

241 See Clark, Cont. 73. A delivery obtained by fraud is ineffectual. Golden y. Hardesty (Iowa) 61 N. W. 913. And see Raymond v. Glover (Cal.) 37 Pae. 772.

242 Mills v. Gore, 20 Pick. (Mass.) 28; Prutsman v. Baker, 30 Wis. 644: Johnson v. Farley, 45 N. H. 505; Paddock v. Potter, 67 Vt. 360, 31 Atl. 784; Boyd v. Slayback, 63 Cal. 493. Cf. Exton v. Scott, 6 Sim. 31.

243 Walker v. Walker, 42 111. 311; Dayton v. Newman, 19 Pa. St. 194; Far-rar v. Bridges, 5 Humph. (Tenn.) 411; Doe v. Knight, 5 Barn. & C. 671.

244 Fisher v. Hall, 41 N. Y. 416; Bank of Healdsburg v. Bailhacke, 65 Cal. 327, 4 Pac. 106.

245 Conlan v. Grace, 36 Minn. 276, 30 N. W. 880; Hill v. Mcxichol, 80 Me. 209, 13 Atl. 883. But see Hinchliff v. Hinman, 18 Wis. 139.

246 Tisher v. Beckwith, 30 Wis. 55.

247 Id. And see Gage v. Gage, 36 Mich. 229.

248 Winterbottom v. Pattison, 152 111. 334, 38 N. E. 1050; Stephens v. Hussk. 54 Pa, St. 20. A deed may become operative by being delivered to the recording officer, if so intended by the parties. Davis v. Davis (Iowa) 60 N. W. 507; Cooper v. Jackson, 4 Wis. 537; Stevenson v. Kaiser (Super. N. Y.) 29 N. Y. Supp. 1122; Kemp v. Walker, 16 Ohio, 118; Laughlin v. Dock Co., 13 C. C. A. 1, 65 Fed. 441. The presumption that a deed which has been recorded was delivered may be rebutted, for instance, by showing that the grantee had no knowledge of the existence of the deed. Union Mut Life Ins. Co. v. Campbell, 95 111. 268; Sullivan v. Eddy, 154 111. 199, 40 N. E. 482; Russ v. Stratton, 11 Misc. Rep. 565, 32 N. Y. Supp. 767.

Real. Prop.-28

434 title. (Ch. 16 given to the owner of the particular estate, and he accepts it for the grantees of the future estates.249 Where there are several grantees in a deed delivery to one is sufficient,250 and delivery of a deed in which a corporation is granteee must be made to some one authorized to accept it for the corporation.251 A deed retained for urity is not delivered so as to become effectual.252 So there can be no delivery of a deed after the death of the grantor.253 A delivery to a third person, to be delivered to the grantee on the death of the grantor, is good.254 Where there is a delivery to a third person for the grantee, the grantor must not retain power to recall the deed.255 Not only is delivery necessary to the validity of a deed, but there must also be an acceptance by the grantee,256 though acceptance will sometimes be presumed from the grantee

249 Folk v. Yarn, 9 Rich. Eq. (S. C.) 303.

250 Shelden v. Erskine, 78 Mich. 627, 44 N. W. 146. But see Hannah y. Swarner, 8 Watts (Pa.) 9.

251 Western R. Corp. v. Babcock, 6 Mete. (Mass.) 346.

252 Gudgen v. Besset, 6 El. & Bl. 986.

253 Jackson v. Leek, 12 Wend. (N. Y.) 107. A deed found among the grantor's papers after his death is of no effect, though It Is fully executed and acknowledged, since there must be a delivery in the grantor's lifetime. Wiggins v. Lusk, 12 111. 132; Miller v. Lullman, 81 Mo. 311. But see Oummings v. Glass, 162 Pa. St. 241, 29 Atl. 848.

254 Ruggles v. Lawson, 13 Johns. (N. Y.) 285; Poster v. Mansfield, 3 Mete. (Mass.) 412; Miller v. Meers, 155 111. 284, 40 N. E. 577; Belden v. Carter, 4 Day (Conn.) 66; Wheelwright v. Wheelwrignt, 2 Mass. 447; Hathaway v. Payne, 34 N. Y. 92; Latham v. Udell, 38 Mich. 238; Stephens v. Rinehart, 72 Pa. St. 434; Squires v. Summers, 85 Ind. 252; Dinwiddle v. Smith, 141 Ind. 318, 40 N. E. 748. The grantor must not reserve power to recall the deed, or the delivery is ineffectual. Cook v. Brown, 34 N. H. 460; Baker v. Haskell, 47 N. II. 479; Prutsman v. Baker, 30 Wis. 644.

255 Maynard v. Maynard, 10 Mass. 456. The return or cancellation of a deed after it has become operative by execution and delivery will not divest the (state conveyed, or restore the grantor to his former position. Furguson v. Bond, 39 W. Va. 561, 20 S. E. 591; National Union Bldg. Ass'n v. Brewer, 41 111. App. 223; Jackson v. Chase, 2 Johns. (N. Y.) 84; Raynor v. Wilson, 6 Hill (N. Y.) 409; Botsford v. Morehouse, 4 Conn. 550; 1 Dembitz, Land Tit. 325. But see Albright v. Albright, 70 Wis. 532, 36 N. W. 254; Com. v. Dudley, 10 Mass. 403; Holbrook v. Tirrell, 9 Pick. (Mass.) 105; Hopp v. Hopp, 156 111. 183, 41 N. E. 39; Cadwallader v. Lovece (Tex. Civ. App.) 29 S. W. 666.

256 Jackson v. Phipps, 12 Johns. (N. Y.) 418; Thompson v. Leach, 3 Lev. 284; Beardsley v. Hilson, 94 Ga. 50, 20 S. E. 272; Derry Bank v. Webster,

§ 266) having possession of the deed.257 And also there may be a presumption of acceptance from the beneficial character of the instrument,258 though this presumption does not obtain unless the grantee has knowledge of the existence of the deed.259 The presumption of acceptance may be rebutted.260 When the actual delivery and acceptance of the deed consists of a number of connected acts, these acts may all be taken as having occurred together, and the date of the first of them is treated as the time when the deed takes effect and the title passes.261 This is known as the doctrine of relation. When a conveyance is beneficial to the grantee, it is held that a father may accept for an infant child, or a husband for a wife.262: Until a deed has been accepted by the grantee, it may be recalled, though there has been a delivery by the grantor. But this is not possible after there has been an acceptance.263 Delivery and acceptance are in each case matters to be proved by parol evidence.264