Mowry v. Mowry

The Court. The defendants are in possession of a certain lot in San Francisco, and the plaintiff brought this action to quiet his title thereto, and for a writ of possession. Both parties claim under Sylvester Mowry, deceased, the plaintiff under a deed executed by Sylvester ■by his attorney in fact, Origin Mowry, and the defendants, George B. and Ellen M. Mowry, as the only children and heirs at law of Sylvester, of whose estate George B. is administrator. The other defendants are tenants under the administrator. Origin and Sylvester Mowry were brothers, and Origin is also dead. The power of attorney under which Origin executed the deed was made in 1873, and the conveyance thereunder to the [316]plaintiff was dated July 21,1877, and is claimed to have been delivered in August of that year.

Several questions of fact were litigated, the principal of which were the mental capacity of Sylvester, the delivery of the deed, and whether there was any consideration therefor. The case was tried before a jury, and resulted in a general verdict for the plaintiff, and this appeal is from the judgment entered thereon, and from an order denying a new trial.

The only exceptions to the sufficiency of the evidence relate to the conveyance to plaintiff, and not to the mental capacity of Sylvester Mowry.

It is contended by appellants that plaintiff gave no consideration for the conveyance, and that there was no sale to him. The facts shown by the evidence touching this transaction were that Sylvester owned the lot here in question, and also a forty-acre tract near Niles, in Alameda county. The plaintiff, at the time of the conveyance, was about nineteen years of age, recently out of school, and was then working on his father’s place.

As between plaintiff, the grantee in the deed, and Sylvester Mowry, the grantor, it is clear there was no consideration, nor was there any agreement of sale between them; and, as between the plaintiff and his father, who was the attorney in fact of Sylvester, it was a gift. It is not contended by respondent that an attorney in fact can, unless expressly empowered so to do, make a gift of his principal’s property. The power here was to sell and convey. It is contended, however, that a consideration was paid by Origin to Sylvester, and that such consideration is sufficient to support the conveyance to the son. If there was a sale by Sylvester to Origin, it is insisted by appellant that Origin’s relation to the transaction was such that he could not make a conveyance to himself, and, as the son paid no consideration and was in no way connected with the alleged sale, which, if made at all, was made to Origin, that Origin could not make a valid conveyance.