Videau v. Griffin

California Supreme Court Jul 1, 1863Published

Before: Field

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Holding. A deed executed by an attorney-in-fact is inadmissible as evidence of a valid transfer of real property absent proof of written authority, as a notary's certificate merely acknowledging the attorney's act is insufficient to satisfy the Statute of Frauds.

Issues

Whether a notary's certificate acknowledging that a principal executed a deed by his attorney is sufficient to prove the deed's due execution.
Whether an attorney's authority to execute a deed must be conferred by writing under the Statute of Frauds.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The certificate of the notary is only to the effect that Clark acknowledged that he had executed the deed by his attorney, which, in other words, is this—that Clark acknowledged that his attorney had executed the deed.”

“In the absence of its production the presumption is that it did not exist.”

Synopsis

The authority of an attorney to execute for his principal a conveyance of real estate must he in writing, and a deed purporting to have been executed by an attorney is inadmissible in evidence without proof being first made of the attorney’s written authority.

When a deed has been executed by an attorney without any previous written author^ ity, no subsequent parol acknowledgment of his authority by the principal will make the conveyance valid.

The only exception to the rule that an authority to execute a deed must be conferred by writing, is when the execution by the attorney is in the presence of the principal, and to bring a case within this exception it is not sufficient that the attorney was directed to sign the name of the principal and afiix his seal, but the execution must have been in his immediate presence and under his immediate direction.

The fact that the execution was in the presence of the principal must be affirmatively established liy the party who relies upon it as an excuse for the absence of a power in writing, and it is not to be inferred from any coincidence between the date of the deed and an acknowledgment of the principal that it was executed by his attorney.

Field, C. J. delivered the opinion of the Court Norton, J. and Cope, J. concurring.

The deed to Hibberd purports to be executed on the first of June, 1850, by “ John A. Clark, by his attorney, Henry Sparks.” The certificate of acknowledgment annexed is as follows:

[391]“ California, San Francisco, ss : On this first day of June, in the year of our Lord one thousand eight hundred and fifty, personally appeared before me, John A. Clark, to me known, and who executed the within deed, and acknowledged the same to be his free act and deed, by his attorney, Henry Sparks.

“ Given under my hand and seal, the day and year last above written. Thomas Tilden,

“ Notary Public.”

No power of attorney from Clark to Sparks was produced. The plaintiff relied entirely upon the certificate of the notary to establish the due execution of the deed. Upon the objection of the plaintiff, the Court refused to allow the instrument to be read in evidence, and its ruling in this respect constitutes the ground upon which a reversal of the judgment is sought.

There was no error in the ruling of the Court. The certificate of the notary is only to the effect that Clark acknowledged that he had executed the deed by his attorney, which, in other words, is this—that Clark acknowledged that his attorney had executed the deed. A certificate to this purport does not prove the due execution of the deed by Clark. The Statute of Frauds declares that “ No estate or interest in lands, other than for leases for a term not exceeding one year, nor any trust or power over or concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered, or declared, unless by act or operation of law, or by deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering, or declaring the same, or by his lawful agent thereunto authorized by writing.” Here there was no evidence that Sparks ever had any authority in writing to execute the deed. The certificate of the notary does not show the existence of any such authority in writing, or the acknowledgment of the existence of any. If such authority in fact existed, it should have been produced. In the absence of its production the presumption is that it did not exist. Whatever authority, therefore, the attorney possessed upon the subject, we must regard as having been conferred by parol; and in the face of the statute it is hardly necessary to add that an authority of this nature is insufficient for the transfer of real property. And a subsequent parol

Videau v. Griffin

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