Bias v. Cockrum , 37 Miss. 509 ( 1859 )

Handy, J.,

delivered the opinion of the court.

The only question presented in this case is, the propriety of the ruling of the court, in admitting in evidence the deed offered by the defendant, purporting on its face to be executed by Thomas Hunt by his attorney in fact, John H. Morgan.

The objection taken in the. court below to the admission of this deed and here insisted upon, is, that the power of attorney which conferred the authority to execute it, was not produced, and is not shown to have ever been in existence. For the purpose of obviating this objection, it was first proved that the power of attorney could not be found after diligent search, and was not in the possession of the person who had all the other title papers connected with the title to the land which was conveyed- by that deed. It was further in evidence, that Morgan — who, subsequently to the execution of the deed, acted as agent of the plaintiff in' having the land sold at sheriff’s sale, in opposition to the title conveyed by the deed — admitted that the power of attorney was in existence, but that it had never been put on record. But it still further appears, by the certificate of the justices who took the acknowledgment to the deed, that the power of attorney was then exhibited to them ; for it states the appearance before them of Thomas Hunt, through his attorney in fact, John H. Morgan, and adds, “his power of attorney appearing valid.” In addition to this, the testimony of the two justices was read, tending in the clearest manner to show that the instrument was produced before them. They both state, that they never would have made this recital in the acknowledgment, unless the power of attorney had been produced and examined by them ; and Lucas, one of them, states, in corroboration of that fact, that he believed that Graham, one of the grantees in the deed, looked to him to see that the conveyance was a valid one; and hence, the requirement of the production of the power, and the recital in relation to it.

Note. — See Hughes v. Wilkinson's Lessee, ante, 482.

This testimony very clearly establishes the existence and due execution of the power of attorney at the date of the deed.

But the testimony of William Parks, one of the grantees, is relied on to establish the contrary of this. That witness testified, that he was present when the deed was executed, and objection was made to the sufficiency of his authority; and that witness thinks that his authority to sell consisted in a letter from Hunt to him. This testimony, and that of Morgan, tend somewhat to weaken the testimony offered to show that a valid power of attorney was in existence when the deed was executed, as above stated ; but it does not destroy it; and the evidence upon the point appears to preponderate in favor of the existence of a legal power at that time.

But upon another ground, the deed, together with the evidence tending to show its execution under proper authority, was properly admitted in evidence.

It appears that Hunt received the benefit of the purchase-money for which the deed was executed, and that possession of the premises was delivered to the grantees upon the execution of the deed, in the year 1837, and has been held by them, and by those claiming under them, ever since. This was sufficient to warrant the jury in presuming that the deed was executed under valid authority, or that the sale was acquiesced in, so as to conclude Hunt from setting up any title to the land; and in this point of view, the evidence ivas clearly competent, and fully sustains the verdict. Hughes v. Wilkinson’s Lessee, decided at October term, 1857, and not yet reported.

Judgment affirmed.