Powell v. Gossom , 57 Ky. 179 ( 1857 )

Judge Simpson

delivered

the opinion of the court.

The right of the husband, as tenant by the curtesy, in the lands belonging to his wife, which had been rented out for her by her guardian, before her marriage, and which continued to be rented out by the guardian during the coverture, the husband however receiving the rents and profits during that time, is the principal question that arises in this case.

The receipt of the rents and profits is deemed a sufficient seizen in the wife, to entitle the husband to an estate in the land, as tenant by the curtesy. (Pill vs Jackson, 3 Bro. 51; Morgan vs Morgan, 5 Madd. Rep. 248.

The possession of the lessee, for years, is the possession of the wife, and is such an actual seizen in the wife, as to entitle the husband to his curtesy. (4 Kents Com. 29.)

If then, the possession of the tenant, who had leased the land from the guardian, was in law the possession of his ward, the wife was in possession by her tenant at the time she was married, and the right of the husband to curtesy is unquestionable.

The possession of the tenant was not the possession of the guardian, who was only the legally constituted agent of his wards, but it was the possession of the wards themselves. It was a possession held under their title, for their benefit, and by their lessee under a contract with their guardian as their agent.

If the tenant had held over, and refused to surrender the possession at the expiration of the lease, the proceeding to eject him must have been in the name of the wards, and could not have been carried on in the name of the guardian alone. (McCherd vs Fisher’s heirs, 13 B. Monroe, 194.)

After the marriage of the ward the power of the guardian, as such, ceased. He acted subsequently in leasing the land, and in collecting and paying the rents to the husband, as the agent of the latter. As the land was undivided, and the yrife was entitled only to one-third part of it, the guardian who was managing the other two-thirds, for his wards, was permitted, by the husband, to lease out the whole of it, he receiving one-third of the rents and profits accruing therefrom. It thus appears that the wife was in possession by her tenant, at the time of the marriage, that the husband received the rents and profits during the coverture, and consequently there was such an actual seizure as entitled the latter to his curtesy.

4. In Sep. 1836, it was the settled law in this State that an agent could not bind his principal by a sealed instrument, without an authority under seal.(13B.JHo«roe, 916.) 5. An authority to sell land may exist without seal, and if ratified will be binding.

The petition filed by John G. Powell, the heir at law of the wife, in which he asserted a right to the immediate possession of the land, notwithstanding the husband was still alive, was therefore properly dismissed.

It was the settled law, at the time the plaintiff Edmund H. Powell executed the power of attorney to his agent, and the latter made the sale to the defendant, that an agent could not, without authority under seal, bind his principal by a sealed instrument. (Bates’ ex’rs vs Bates’ ex’or, 13 B. Monroe, 216.) Consequently the contract for the sale of the land being under seal did not bind the plaintiff, unless he subsequently ratified and confirmed it.

It is not material, however, whether the written contract is obligatory or not. The agent was authorized to sell, and sold to the defendant, and placed him in the possession of the land. The plaintiffhas received a part, if not all, of the purchase money, and has thereby expressly ratified the sale which his agent made. Indeed, this action itself recognized the validity of the contract, having been brought to enforce the payment of part of the purchase money which was alledged to be still due and unpaid. The covenant executed by the agent was also referred to in the petition, and treated as valid. But even if it be not obligatory on the plaintiff, it is evidence of the terms of the sale, and shows that the agent sold not merely a life estate, but an absolute fee simple estate in the land.

6. If a husband entitled to curtesy only in the land which he sells, sell a fee simple estate, he should only recover the value of the estate which he held.

The reasonable deduction from the writings is that the parties all entertained the opinion that the plaintiff could sell the interest of his wife in the land, and convey a good title to it. But conceding that by the terms of the power the agent was not authorized to sell any thing more than the plaintiff’s interest, as tenant by the curtesy, and that the latter, by his subsequent acts, intended to ratify the sale to that extent, and no further, it would not follow that he would be entitled to the whole purchase money which the defendant agreed to pay for a fee simple title to the land. If the sale be not vacated, but,is permitted to stand, and be specifically executed to the extent of the plaintiff’s title, he is only entitled in equity to the value of his life estate, regarding the estate in fee as of the value of one thousand dollars. He has received a sum exceeding the value of his life estate when thus estimated, and of course has no right to demand the payment of any more, unless he procures a complete title, and thus becomes able to execute the contract in full on his part.

But we are inclined to the opinion that he has been paid the whole amount of the purchase money which the defendant was to pay for his third of the •land. The payment of two hundred dollars on the ■note on which the action was brought is clearly proved, and the same witness proves that the note •'had been transferred by the plaintiff, to the person who héld it at the time that payment was made. The note is not exhibited by the plaintiff; there is no proof that he ever set up any claim to the money since the note was transferred, until this suit was brought; he has been in needy circumstances during the whole time since the note became due, being a period of seventeen or eighteen years, and the defendant has had the undisturbed possession of the land during the whole time. These circumstances tend very strongly to prove that the note has been paid or settled in some manner, but whether it has or not, the plaintiff has been paid the full value of his interest in the land sold to the defendant, and was not entitled to any relief in a court of equity.

Wherefore the judgment is affirmed.