Dupont v. Wertheman

Citations

• 10 Cal. 354

Syllabus

<p>Whore D. gave a power of attorney to P., authorizing and empowering him to “sell and convey ” certain real property belonging to D., and P. executed to V. a deed of the property, purporting on its face to be for the consideration of $8000, when in fact it was not executed upon any sale, or for any consideration paid, or agreed to be paid, but in order to enable V. to control the property, and keep off trespassers: Beld, that the deed not being executed in pursuance of the power, did not pass any title to the grantee, and as between the attorney and grantee it was a nullity.</p> <p>A power to “ sell and convey ” property is special, and must be strictly pursued.</p> <p>No presumption of a ratification of an alleged sale under a power can be indulged, unless knowledge of the alleged sale, with its attendant circumstances, is brought home to the grantee of the power. -</p> <p>Where the following instrument was endorsed on a deed, viz.: “Know all men by these presents, that I, the within-named Avert M. Van Nostrand, of the city of San Francisco, State of California, in consideration of $8000, paid to me by Rodman M. Price, of the city of New York, have assigned to the said Rodman M. Price, and his assigns, all my interest in the within instrument, and every clause, article, or thing, therein contained, and do hereby constitute the said Rodman M. Price my attorney, in my name, but to his use, to take all legal measures which may be proper for the complete recovery and enjoyment of the assigned premises, with the power of substitution. Witness my * hand and seal this 80th day of August, 1850. A. M. Van Nostrand;”—and such instrument was executed without the knowledge of the grantee named therein, and without any consideration therefor, and was not under seal: Beld, that the instrument did not pass the legal title to the premises, and created only an equity in the grantee.</p> <p>The purchaser of an equitable title takes the property, subject to all existent equities. H