Alcorn v. Buschke

SMITH, C.

—The appeal is from a judgment for the defendants on demurrer to the complaint, the plaintiffs declining to amend. The suit was to quiet plaintiffs’ title to the west half of the northwest quarter of section 34, township 2 south, range 5 east, Mount Diablo base and meridian, situate in the county of San Joaquin; and to recover possession of the same.

The plaintiffs deraign title, as to two thirds of-the land in question, as heirs of one McKinney, who died seised of this and other lands, April 8, 1893, and as to the other third, under a deed from one Sebree, the remaining heir, of date

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June 6, 1890. The defendants’ deraignment of title is as follows: 1. Power of attorney executed by the plaintiffs and Sebree to one Kyle, June 5, 1893, recorded June 30, 1896; 2. Deed purporting to convey the land in question, executed by Kyle, in the name of his principals, to Olive A. Jennings, June 26, 1896, recorded July 1, 1896; 3. Deed from Jennings to the defendants, of date October 17, 1896, purporting to convey the same land; 4. Decree of the superior court of the county of San Joaquin, in the matter of the estate of McKinney, of date August 20, 1897, on petition of administrator for partial distribution, distributing the land in controversy to the defendants’ grantor, Jennings.

The questions involved in this appeal relate, — 1. To the construction of the power of attorney above referred to, and the validity of the deed executed by Kyle to Jennings; and 2. To the validity and effect of the decree of distribution.

1. The power of attorney (omitting immaterial matter) is as follows: —

“Know all men by these presents, That we, Dudley Sebree, Timothy Masterson, and Jas. Ben Alcorn (colored), of Louisville, Kentucky, half brothers of the late Joseph McKinney (colored), deceased, of San Joaquin County, California, . . . have made, constituted, and appointed, and do by these presents make, constitute, and appoint, J. H. Kyle our true and lawful attorney, for us and in our name, place, and stead to sell, convey, and make, execute, acknowledge, and deliver, a good and sufficient warranty deed, in our name or behalf, or any other such deed or conveyance as in his judgment he may deem fit or proper, for such price or prices and upon such terms and conditions as he may deem best, to any and all interest that we may have, as half brothers and heirs at law, of Joseph McKinney, deceased, of, in, and to the following described land, subject to our approval, to wit [here follows description, including, besides lands specifically described, all lands and personal property belonging to the estate]. Giving him full power and authority [to institute and defend suits, etc.] to submit any matter in dispute respecting the premises to arbitration, and otherwise and generally to say, do, act, transact, and determine, accomplish, and finish, all matters and things whatsoever concerning the complete recovery or alienation of any interest we may have, legal or equitable, in