De Rutte v. Muldrow

A power of attorney, authorizing the agent to “ superintend my real and personal estate, to make contracts, to settle outstanding debts, and generally to do all things that concern my interest in any way, real or personal whatsoever, giving my said attorney full power to use my name, to release others or bind myself, as he may deem proper and expedient, hereby making the said School-craft my general attorney and agent, and by these presents ratifying whatsoever my said attorney may do by virtue of this power,” gives the agent power to execute a lease of 'real estate, containing a clause that the lessee “ shall have the privilege of purchasing any part of said land during the continuation of this lease, at its value, in preference to any other persons.’’

Billings v. Morrow, (7 Cal. 171) as to construction of a power of attorney, commented on, and the rule there laid down not to be extended.

Query: Whether the rule laid down in that case, that “ where the authority to perform specific acts is given in the power, and general words are also employed, such words are limited to the particular acts authorized,” embraces a power to convey real estate.

Where a lease gives the lessee the privilege of purchasing the land during the lease, at its value, in preference to others, this privilege is as much a term of the contract, and binding on the lessor, as any other term of the instrument; and though the lessee be not bound to purchase, and the lessor’s contract may amount only to a proposition, until accepted by the lessee, yet, upon his acceptance, it becomes a valid agreement.

A man may as well agree to sell property upon the condition that another will consent to buy, as upon any other condition, or absolutely. The agreement is no less a contract, because it merely provides for, or is in advance of another contract, than if it were incorporated in the ultimate contract; or, in other words, a man may as well bind himself to make a contract, as to bind himself by contract, and the first as well partakes of the nature and essentials of a valid agreement as the last.

Laffan v. Naglee (9 Cal. 662) on this point cited.

Where a lease contatos such privilege in favor of the lessee to purchase, he has an equity as against his lessor to have the agreement executed.

M. had a lease, dated December, 1849, from Sutter, through his agent, S., containing a clause ofJpurchase of the land during the léase. April, 1850, M. received a letter from Sutter, directed to S., his agent, and M., in which Sutter stated that he had sold to M. the land in dispute for $2,800, two hundred dollars of which had been paid, and the balance was to be paid in three equal payments of six hundred dollars, for which M. was to execute his notes, and reform the lease so as to relinquish his right to purchase the balance of the land leased; that M. was to have a bond for forty acres of the land, and the balance of the land he was to have at any time during the continuation of the lease, upon the payment of eight hundred dollars additional; that M. then and there executed the three notes for six hundred dollars each, and S., as the attorney of Sutter, executed and delivered to M. a bond for the forty acres, and changed and reformed the lease. M. took possession of a portion of the land on the execution of the original lease. Prior to October 22d, 1850, M. paid the $2,800, and Sutter, by his then attorney, F., executed to M. a deed for the land in dispute. Plaintiffs received from Sutter a deed of the land, dated May 3d, 1850, made in pursuance of an agreement between the parties, dated January 26th, 1850. Plaintiffs also had another deed from Sutter, dated November 20th, 1850. When plaintiffs purchased, they had notice of M.'s equity and interest in the land. Held, that this letter constituted a valid agreement as to the land, and when taken in connection with the execution of the agreement by the deed of Sutter to M., by his agent, F., in April, 1850, with the possession of the premises by M., notice to plaintiffs of M.’s rights makes out an equitable title in M. sufficient to defend in ejectment by plaintiffs.