Michelson v. Hyde , 34 Neb. 60 ( 1892 )

Maxwell, Ch. J.

This is an action brought in the district court of Washington county by the plaintiff against Samuel Hyde, Welcome Hyde, and John Lothrop, to correct and reform a certain conveyance of real estate in the form of a power of attorney, and to restrain the defendant John Lothrop from committing waste on the land during the pendency of the action. It appears from the evidence that on the 8th day of December, 1857, Welcome Hyde, who was then the legal owner of the lands in controversy, executed and delivered to Samuel Hyde a power' of attorney to convey “ The north half of the northeast quarter and the north half of the northwest quarter of section 27, in township 18 north, of range 12 east, in Washington county, Nebraska;” that the power of attorney was executed in this state, but not witnessed ; that in pursuance of said power of attorney the said Samuel Hyde, in the name of his principal, executed and delivered a deed of conveyance of said premises to a bona fide purchaser, and afterwards a complete chain of title is proven by succession of Conveyances down to the plaintiff. The only defect in the power is in the failure to witness the same. The Hydes do not contest the plaintiff’s right nor does any one who purchased in good faith from them. During the pendency of this action, and before the determination thereof, the defendant Hortense Lothrop obtained from the defendant Welcome Hyde and wife a quitclaim deed of the premises in controversy; thereupon the plaintiff obtained leave to file a supplemental petition alleging these facts and bringing Hortense Lothrop in as a defendant for the purpose of setting her deed aside and having the same declared void and' in fraud of the rights of the plaintiff. A supplemental petition was filed and issue joined thereon, and the case tried upon the pleadings and proof, and a decree for the plaintiff. The defendants Hortense Lothrop and John Lothrop bring the ease into this court by appeal.

We do not care to comment on the testimony in this case — more particularly as it is not creditable to some of the parties concerned. The only defect in the power of attorney was the failure to witness the same. The person authorized thereupon sold the land to a bona fide purchaser and made a deed therefor to him, and the plaintiff traces his title by conveyances of parties who derived title through said power of attorney. So far as this record discloses, Welcome Hyde has been anxious to remedy the defect and evidently supposed that he was doing so in making a quitclaim deed to Hortense Lothrop. The Lothrops are' not bona fide purchasers, and have suffered no wrong in the premises. The judgment is clearly right and is in all things

Affirmed.

The other judges concur.