Finch v. Gillespie , 107 N.Y.S. 418 ( 1907 )

Woodward, J.:

On the 29th day of December, 1891, one Harriet E. Eoberts executed and delivered a power of attorney to Wilbur H. Whitlock, in which the said Wilbur H. Whitlock was authorized “ for me and in my name, place and stead, and to my use, to grant, bargain, sell and . convey any and all my real- estate situate, lying and being in' the Counties of Kings, Queens and Suffolk, in the State of Hew York, for such prices and on such terms as to him shall seem best and proper, and for me and in my name to make, execute, acknowledge- and deliver good and sufficient deeds and conveyances for the same, either with or without covenants and'warranty ; and also to borrow upon bond and mortgage upon any and all of my real estate which I am now seized or possessed of or which I may hereafter be seized or possessed of, such sum or sums of money as to him may seem proper and best and to sign, seal and deliver bond or bonds for the payment of sums of money upon such terms as to him may seem proper,” etc. There was no limitation as to time in the instrument, and it is evident from the language that Harriet E. Eoberts intended by this power of attorney to invest Mr. Whitlock with general powers to deal with her real estate within the territory mentioned until she should revoke the power. This is evident from the fact that so late as August 28, 1895, Mr. Whitlock, acting for her, purchased the premises involved in this controversy, which were duly conveyed to her, the deed being duly recorded in the clerk’s office of Queens county. There is no suggestion that the said Harriet E. Roberts' did not get a perfectly valid title by this transaction; there is no suggestion that she ever questioned Mr. Whitlock’s .power to act as her agent in the purchase of these premises, or that she ever did any act to indicate an intention of revoking the power of attorney made and delivered in 1891, and which was duly entered as of record in the said clerk’s office. On the 1st day of June, 1897, acting under the authority of this recorded and unrevoked power of attorney, Mr. Whitlock executed and delivered a deed of the said premises purchased in 1895 to Earl A. Gillespie, the defendant in this action, and the only question presented is whether the defendant can convey a good and marketable title to the premises. The plaintiff urges that the power of attorney did not relate to after-acquired property, and that the deed to the defendant is not, therefore, clear as to title. . i

While it is true that, considered abstractly, the fact that the power of attorney specifically'authorizes mortgages upon after-acquired property, while failing to give authority for selling after-acquired property, might be construed to negative such a power, when the conceded facts are all kept in mind, and we seek to arrive at the intention of the parties, it must be clear that the power of attorney, duly recorded for the purpose of enabling Mr. Whitlock to deal generally with Mrs. Roberts’ real estate, was a continuing power, and authorized Mr. Whitlock to convey any or all of her property within the territory mentioned. She permitted Mr. Whitlock to purchase the premises for her; the deed conveying the same to her had been recorded for nearly two years, thus showing at least a ratification of a very general agency outside o£ the authority conveyed in the power of attorney, and with this property in her possession she permitted this continuing power of attorney to stand recorded, thus evidencing a purpose to continue the power. There is no suggestion in the record before us that Mrs. Roberts, during the period of practically ten years that lias elapsed since the sale of the premises to the defendant, has ever questioned the power of Hr. Whitlock; that she has ever questioned the possession or ownership of Hr. Gillespie under the deed from Hr. Whitlock, or that the power óf attorney has ever been modified or revoked in any particular. It must be presumed that she has, long ere this, received the benefits of the sale of the lands involved, and we thus not only have the practical construction of the parties to the power, but we have a state of facts which would estop Hrs. Roberts from questioning the authority of the man whom she has held out by her acts, as well as her written power of attorney, as her agent in dealing with her real estate in the counties mentioned. (Hyatt v. Clark, 118 N. Y. 563, 568.)

We are of the opinion that. Hr. Gillespie’s title, in so far as it is questioned here, is perfectly valid, and that judgment should be ■ entered for the defendant.

■ Hirsohberg, P. J.,-Jenks, Hooker-and Hiller, JJ., concurred.

Judgment for the defendant on submission of controversy, Without costs.