Barr v. Schroeder
Before: Rhodes, Sawyer
Synopsis
Deed of Trust.—It is not necessary that a deed of trust hy which the grantor conveys to the grantee, in trust to sell the property and pay a debt of the grantor to a third person out of the proceeds, should be delivered to, or assented to, or exouted by the cestui que trust, or that there should he a debt due from the grantor to the cestui que trust, in order, as between the grantor and grantee, to • pass the legal title to the grantee.
Idem.—The above rule does not impair the right of a creditor of the grantor to question the bona fides of the deed.
Deed to Fictitious Person.—A deed to J. 0. B., when there is no such person in existence, does not transfer the title of the property to any one.
Delivery of Deed.—The recording of a deed is not evidence of its delivery hy • the grantor to the grante^ unless the deed comes from the hands of the grantor, or some one claiming through or under him.
Idem.—Without the delivery of a deed it is void.
Confirmation.—A confirmation is a contract hy which an act that was voidable is made firm and unavoidable.
Confirmation of Void Deed.—A deed that was void for want of a delivery, or through mistake in reciting the name of the grantee, cannot be confirmed hy a subsequent deed given for that purpose.
Interest which makes Power of Attorney Irrevocable.—The interest which an attorney in fact must have in order to render his power of attorney irrevocable, must be an interest in the property on which the power is to be exercised, and not an interest in the money derived from a sale of the property.
Irrevocable Power of Attorney.—A power of attorney may he irrevocable though it is not a power coupled with an interest, as where it is given as security for the payment of money, or is made irrevocable.
Power of Attorney not Irrevocable.—A power of attorney which makes the attorney an universal agent for the transaction of all ordinary business will not he held irrevocable, unless its terms are so plain as to need no construction.
Surplus in Deed does not Vitiate it.—If a second deed recites that it is given to confirm a former one in which mistakes had occurred, and the first deed was void, rendering confirmation impossible, the recitals in the second deed may he regarded as surplus, and it will be sufficient in law to pass the title.
Opinion — Rhodes
By the Court, Rhodes, J.: The motion for a nonsuit was sustained on two grounds. The first ground is that the deed of trust did not pass the title from Doll. Doll conveyed the property in action, together with other lands, to Simpson in trust; to sell so much thereof as he might deem proper, to pay the promissory note of Doll to Hawkins, upon Doll’s failure to pay the same, and on the demand of the holder of the note, etc.; also, to sell parcels of the land “ whenever in his opinion a reasonable price was offered for the same;” and to reconvey to Doll the portion remaining unsold, upon the payment of the note to Hawkins. The objections to the deed stated by the Court in granting the nonsuit were, that it was not signed by or assented to by Hawkins nor delivered to him. It was not necessary that it should have been signed by Hawkins. There are no covenants or conditions on 1ns part in the deed requiring that it should be executed by him ; and no rule of law is cited which [615]makes it requisite that the cestui que trust should execute the instrument creating the trust. It appears from the testimony of Doll, that the deed was delivered to Hawkins, and, if delivered to him, his assent to it is presumed. But the point need not be rested on that ground. The deed would be good as between Doll and Simpson, without any delivery to or assent by Hawkins, and indeed its sufficiency to pass the title to Simpson does not depend upon the fact of there being such a note as is therein described, or even a debt due from Doll to Hawkins. If Doll chooses to convey, and Simpson is willing to take the title, under such circumstances, they may declare such trusts as they please, and both are bound by the recitals and are estopped from denying that the legal title passed. This does not impair the right of a creditor of the grantor to question the bona fieles of the transaction. The conyeyance is valid as between the parties, though it should be held fraudulent and void as against the creditors of the grantor, on the ground that it was executed with the intent to hinder, delay, or defraud them. Questions such as migh grow out of a contest between a person claiming title through Simpson, and a creditor of Doll, could not properly arise upon the motion for a nonsuit. The deed was prima facie sufficient to pass the title, and if the defendant would attack it, on the ground that it was not executed to secure the debt therein mentioned, he must first bring himself into the proper relations with the grantor.
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