Majority
p. 380Jackson, ex dem. Livingston and others, against Neely. NEW YORK, Oct. 1813.
Headnote
Proof that a pe™ belongtbf possession after’ death, was delrewRhher heid^uffietent evidence of^ the plaintiff dei'to give o? the''exisT ence and conOTofattorney whohad^xe-" cuted a deed ■jjy virtue of the power, in And of that°he executed^ die he w’as authopower of ate to Execute it, was held denee of the such power °Wbere a deed reciting a leU ter of attorof^wblch'the wa's'made'was dulydeposited oi%lanyrl0 act of the 8th of January, of the power, by means or the recital, to 1794, (sess. 7. c. 44.) it was held to be sufficient notice a subsequent purchaser, who was equally affected by it, as if the power itself had been also deposited.
THIS was an action of ejectment for lot No. 39. in the town °f Homer, in the county of Courtlandt. The lessors of the pkmitiff are the heirs of Robert C. Livingston, who died in Au-£us^’ The lot was originally granted to John G. Guth, a soldier in the late war.
The plaintiff gave in evidence a deed, dated the 5th of July, from John G. Guth to Robert C. Livingston, for the lot ire question. It recited a power of attorney from Guth to Leonard Bleecker, dated the 23d March, 1791, authorizing and empower§ Bleecker to sell and convey the lot, and was executed by ^leecker in the-name of Guth, as his attorney, and acknowledged before a master in chancery. Bleecker swore that he executed the deed, which was shown to him, as the deed of Guth, whom he knew, and that he was authorized by a power of attorney from him.
The widow of Robert C. Livingston, at the time of his death, among other things in the house, had charge of a trunk of papers belonging to the deceased. She occasionally delivered papers to the executors, as they required. In 1797, she married James Crawford, who died in 1811. In 1799, the house in which they hved, in the city of Nerv-York, was destroyed by fire, and the bmnk with the papers remaining, werp, at the same time, consumed: but whether the letter of attorney recited in the deed from Guth to R. C. Livingston was among the papers so destroy-, b did not appear. It was not among the papers delivered to the executors; nor was it to be found in the office of __ the clerk of the city and county of JSew- York, as recorded or remaining there. The deed from Guth to Livingston was ^ with the clerk of the city and county of Albany, the 29th of March, 1794.
The defendant claimed to hold under Guth by two convey) the one, dated the 6th of November, 1806, for the consideration of 850 dollars, describing the lot as No. 34.; and the other, dated the 23d of March, 1807, for the same consideration, describing the lot by No. 39., its true number: this deed was re-cor¿e¿ tfie 19th of May, 1807.
p. 3811. In Livingston v. Rogers,[2] parol evidence was admitted of the contents of a power of attorney, which the attorney swore he had put in a chest, and had diligently searched for, but could not find, and believed that he had destroyed it as a useless paper; and the court of errors decided that the evidence was sufficient. How far it was correct to permit the attorney himself, to whom the power was given in that case, to say that he had destroyed it as a useless paper, and on that evidence only of its existence and loss, to admit parol proof of its contents, might have been questionable; but the reasoning of a majority of the court, in that case, showed that great liberality and indulgence was to be allowed, in admitting excuses for the non-production of deeds on the ground of their destruction and loss. The evidence in the present case is stronger and more satisfactory. 2. The act of the 8th of January, 1794, for registering deeds and conveyances relating to the military bounty lands, does not speak of powers of attorney, but only of deeds and conveyances. But does the defendant appear before the court as a bona fide purchaser ? For it is only in favour of such that the law avoids the prior conveyance. Good faith implies an entire and utter ignorance of all prior deeds or conveyances. As the deed from Guilt to Livingston was deposited in the office of the clerk of Albany? in 1794, can the defendant be presumed ignorant of it? There was not proper or sufficient evidence of the existence of the power of attorney. Instead of the person who executed the deed, as the attorney of Gulh, the subscribing witnesses to the deed ought to have been produced. .Nor was there sufficient evidence of the loss of the powrer of
A verdict was taken for the plaintiff, subject to the op'nion of the court, on a case containing the facts above stated.
The points raised for the consideration of the court were, 1. Whether the loss of the power was so proved as to entitle the plaintiff to give parol testimony of its existence and contents, and whether the proof given was sufficient; 2. Whether the power of attorney, if in existence, could have been used in evidence in this case, not having been deposited in the office of the clerk of the city and county of Albany, under the act of the 8th of January, 1794. (Sess. 17. c. 44.)
Benson, for the plaintiff.
E. Williams, contra.
p. 382attorney. It does not appear that it was in the trunk of papers which was destroyed, or that it was in possession of Livingston, or his widow. The law placed it in the office of the clerk of the county of Albany, and afterwards in the office of the clerk of the county of Onondaga, and in neither of those places has search been made for the instrument. That it was indispensably necessary to deposite the power of attorney as well as the deed, is manifest from the language and intent of the act of 1794. The object of the act, as expressed in the preamble, was to detect and defeat frauds in relation to the military bounty lands. To fulfil that intention it was necessary that the power as well as the deed should be deposited. The power being a writing sealed and delivered, is to be considered as a deed. It related to the land in question, and may be considered as part of the same conveyance. Mere suspicion of notice is not enough to fix the imputation of fraud on a purchaser. There must be clear and undoubted notice.[2]
The retention of a trunk of papers by the widow of the ancestor, and the loss of that trunk together with her house by fire, is sufficient to entitle the 'plaintiff to go into parol proof of the existence and contents of the letter of attorney. And the testimony of Bleecker is sufficient evidence of the existence of the power, and of his authority under it to execute the conveyance to the ancestor of the lessors. A jury, upon those facts, would have been warranted to have found the conveyance from Guth, the soldier, duly executed. The only remaining point, and one involved in the other, is, whether the letter of attorney ought not to have been deposited at Albany, under the act of 1794; for a neglect in complying with the act in that particular would operate to postpone the plaintiff’s title to that of the defendant.
This point it is unnecessary to decide; for admitting it to have been requisite to deposite the letter of attorney with the conveyance, yet as the conveyance was duly deposited, and as it recited ike letter of attorney, by virtue of which the conveyance was made, the subsequent purchaser had notice of the power, by means of the recital, and is affected equally as if the power itself had been deposited.
The plaintiff is, accordingly, entitled to judgment.
Judgment for the plaintiff