Gerdes v. Moody

Citations

• 41 Cal. 335

Syllabus

<p>Construction of Deed.—Powell gave a power of attorney to Neleigh, authorizing him to convey certain lots in San José, confirming by the terms of the instrument any sales he might make. Soon after receiving the power of attorney, Neleigh sold the property to Naglee for a fair consideration, and conveyed it to him by his own deed, in which there is no reference to Powell; but about a year thereafter, and while the power of attorney remained in full force, Neleigh indorsed on the deed a writing to the effect that the lots were intended to be sold to Naglee under the power of attorney, and that he executed the deed only as the attorney for Powell, adding: “ and as such' attorney I do hereby bind John W. Powell, his heirs and assigns, to the within agreement, having received the consideration as within specified. (Signed): Bob’t B. Neleigh, Attorney.” Held, that in order to ascertain the intention of the parties, these two papers must be construed together, and that under the circumstances they constitute an attempt by Neleigh to convey to Naglee under the power of attorney.</p> <p>Belief for Defective Execution of Power of Attorney.—Such a case is the ordinary one of a defective execution of a power, and a Court of equity will afford the appropriate relief. ,</p> <p>Idem—When Invoked.—It is only when there has been an unsuccessful attempt to execute a power in proper form that the interposition of a Court of equity is properly invoked.</p> <p>Equities of Occupant without Legal Title.—Neither the fact that the party in possession first entered as an intruder without title, and subsequently obtained from Naglee all his title to the premises, nor the fact that Naglee reconveyed one of the lots to Neleigh soon after the making of the second writing, would impair the equities of the party in possession.</p> <p>Statute of Limitations Bab to Equitable Defense.—In an action by the vendor of lands holding the naked legal title against his vendee to recover the possession, the