Nixon v. Hyserott — 5 Johns. 58

Majority

p. 58

Nixon against Hyserott and Hyserott.

Headnote

A. gave to B. a power of attorney to grant, bargain, sell, release, kc. in fee, certain lavids,. andón such sale to <c execute, seal and deliver, in the name of A. such conveyances and assurances in the law of the premises to the purchaser, in fee, as should be needful or necessary, according to the judgment of B. his attorney.” It ivas heid, that JB. had no power to execute a deed with the usual covenants of seisin, kc. so as to bind liis principal.

A conveyance or assurance is good and perfect without warranty or personal covenants.

An authority must be strictly pursued ; and any act substantially varying iiomil, is void.

THIS was an action brought on the covenant of seisin7 in a deed, executed by the defendants, by their attorney, Anthony Maxwell, to the plaintiff.

Plea, non est factum, fe?c.

The letter of attorney was dated the first day of March, 1804. The defendants constituted Maxwell, their attorney, in their names and to their use, to grant, bargain, sell, release, convey and confirm, in fee, to any person, certain specified lots, in the military tract, and on stlch sale, to “ execute, seal and deliver in their names, such conveyances and assurances in the law of the premises, unto the purchaser, his, her or their heirs or assigns, for ever, as should or might be needful or necessary, according to the judgment of the said attorney.”

The deed on which the suit was brought, purported to be executed by Maxwell, as attorney for the defendants, and was dated the 22d of March, 180S, for the consideration of 3,600 dollars ; it conveyed certain lands to the plaintiff, and contained the usual covenants of seisin, &c.

The defendants gave in evidence, a deed executed by the said attorney, to' Ezekiel Gilbert, dated- the 14th of Aiigust, 1804, for the same lands, excepting 100 acres, and which deed was duly recorded the 14th of March,

1805, and another deed executed by the said attorney, to Chester Belding, dated the 7th of June, 1804, for part of the lands sold to die. plaintiff; this deed was not recorded, and its admission was objected to, but the judge allowed it to be read in evidence.

A verdict was taken for the plaintiff, subject to the opinion of the court, on the case; and if the court should be of opinion that the plaintiff was entitled to recover, then the verdict was to stand, otherwise it was to be set aside and a nonsuit entered.

p. 59

Bleecker and Sedgwick, for the plaintiff.

E. Williams, for the defendants.

The attorney was authorised to sell and to execute conveyances, and assurances in the law, of the lands sold ; but no authority was given to bind his principal, by covenants. A conveyance or assurance is good and perfect without either warranty or personal covenants ; and therefore they are not necessarily implied in an authority to convey ; an authority is to be strictly pursued, and an act varying in substance from it is void. There must be a judgment of nonsuit, according to the ’ direction in the case.

having formerly been concerned as counsel in the cause, gave no opinion.

Judgment of nonsuit.