Dupont v. Wertheman

Field J., delivered the opinion of the Court Terry, C. J., concurring.

The power of attorney from the plaintiff to Price, authorized a sale of the premises. It did not authorize a gift of the property, or its transfer for any purpose, except in completion of a sale. The deed to Van Nostrand was not executed upon any sale. Ho consideration was paid, or stipulated to be paid. Both Price and Van Nostrand agree, in this respect, in their testimony. Price states that he transferred the property in order that Van Nostrand might control it and keep off trespassers, giving to him the privilege of retaining it for eight thousand dollars. He did not elect to retain it, nor did he offer to pay any portion of this sum. Van Nostrand states that the conveyance was made to him, in trust, for the wife, or some member of Price’s family. It is immaterial for what purpose the deed was given, as it was not executed upon a sale. The power was special, and the deed not being in pursuance of the power, could not pass any title from the plaintiff to Van Nostrand. Nor was there any ratification of this conveyance by the plaintiff. He was not aware of its existence. No information was communicated to him on the subject. It is true §4000 was sent to him on account of his property generally, but not on account of the proceeds of any sale. ,: No presumption of ratification can be indulged, as knowledge of the alleged sale, with its attendant circumstances, was not brought home to him. (Billings v. Morrow, 7 Cal., 171.)

As between the plaintiff and Van Nostrand, the conveyance had no more effect than if it had recited on its face that Price was only authorized to sell the property; but, for reasons best known to himself, made the conveyance without a sale. No parade of [368]authorities could give to such an instrument any operative force in favor of a subsequent purchaser. These facts existing, though not apparent on the face of the deed, the same result must follow as between the parties. As between them, it was a nullity. In appearance, it conferred title, while, in fact, ho title passed.

The question of protection to a bona fide purchaser, without notice, relying upon the form of the deed, can not arise unless some conveyance was subsequently executed by Van Nostrand; and this involves an inquiry into the effect of the assignment endorsed on the back of the deed. It is as follows:

“ 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 I 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.