the purchaser. In the year 1883, three separate money judgments had been obtained against Williams, and duly docketed in the office of the clerk of the district court for the county in which this land was situate, aggregating in amount the sum of $444.27. In two of these, plaintiff and one Perry were the judgment creditors. The plaintiff has, by proper assignment, succeeded to Perry's interest in these judgments, and he was the sole creditor named in the third judgment. No part of the judgments has been paid, except $236 on March 27, 1884. Executions were duly issued and placed in the hands of the proper officer, where they remained wholly unsatisfied when this action was commenced. The trial court found, in addition to the facts above stated, that none of these instruments executed and delivered by the defendants above named were made or procured with fraudulent design. It also found that the purchaser knew, at the time of the sale and conveyance to him on March 1, 1884, that Williams had obtained the sum of fifteen hundred dollars from Thomas O. Jones in 1880 for the purpose and that it was used in paying the railway company for the land, and that thereupon the conveyance, absolute in form, from Williams and wife to said Jones, and the land contract signed by the latter, were executed and delivered. On the findings it was adjudged, as matters of law, by the court below, that the deed from Williams and wife to Thomas O. Jones, and the contract from the latter to Williams, constituted a mortgage upon the land, and that upon a surrender of the contract by Williams, and the conveyance to Robert D. Jones, the absolute title to the land vested in the latter. Judgment was entered on these findings and order in favor of defendants, and from this judgment plaintiff appeals. The appellant concedes that the transaction of November 5, 1880, in which Williams and his wife gave their warranty deed of the premises to Jones, and the latter executed and delivered to Williams his contract to reconvey, upon being paid the exact sum loaned by him, with interest, constituted a mortgage. But his counsel argues that as this mortgage was in two parts, one the unconditional deed, the other the defeasance, the recording of the deed alone was abortive, and of no avail as against subsequent good-faith purchasers or encumbrancers, or as against creditors with judgments duly docketed, without actual notice of the unrecorded defeasance; that as the record of the deed was but the record of a part of the mortgage, it gave no notice to any one; that such record failed

AM. ST. REP., VOL. XXII. -46

to protect the mortgagee; and that appellant's judgments were liens prior and superior to the rights of Thomas O. Jones, or the rights and title of his grantee, Robert D. Jones. Relying on these propositions, it was plaintiff's object in this action to have his judgments declared prior liens, and superior to the rights and title of either of said parties to the land. To sustain this position, appellant's counsel has cited cases from several of the New York and Pennsylvania reports, among others, Dey v. Dunham, 2 Johns. Ch. 182, and Jaques v. Weeks, 7 Watts, 261. To the same effect, Fisher v. Tunnard, 25 La. Ann. 179, Gulley v. Macy, 84 N. C. 434, and Ives v. Stone, 51 Conn. 446, may be noticed. In Louisiana, New York, and Pennsylvania, the conclusions reached were placed upon express statutory provisions, unlike our own, in regard to the registration of mortgages; the statute of New York, the purport of which is stated in Benton v. Nicoll, 24 Minn. 221, being an example. But in the Connecticut and North Carolina cases, supra, it is distinctly asserted that such a decision is demanded by a proper interpretation of the registry laws in their general intent and purpose, as designed to afford a protection against fraud. But the current of authority, in the absence of an express statute requiring, without qualification, the record of the defeasance, is, that the rights of the mortgagee are fully protected by the recording of the deed, and without a record of the instrument by which the deed may be defeated. It is said that the record of a conveyance absolute in terms, being notice of a greater interest than the mortgagee really has, must be held adequate to protect his rights, and be treated as sufficient notice of his actual interest, whatever that may prove to be: Bank of Mobile v. Tishomingo Sav. Inst., 62 Miss. 250; Christie v. Hale, 46 Ill. 117; Kemper v. Campbell, 44 Ohio St. 210; Knowlton v. Walker, 13 Wis. 264; Webb on Record of Title, secs. 137-139; 1 Jones on Mortgages, sec. 548.

It was held in Benton v. Nicoll, 24 Minn. 221, that a deed absolute in form, but a mortgage in fact, was properly recorded in a book kept for the recording of deeds, and that its defeasance a bond in that instance—was rightfully recorded in the book kept for miscellaneous records. And further, that Revised Statutes of 1851, chapter 46, section 27, now section 23, chapter 40, General Statutes of 1878, repelled the inference that the statute in reference to the recording of deeds, mortgages, and other instruments contemplated the record of such a conveyance or deed in a book kept for the record of

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mortgages. The deed record being therefore the proper place for the recording of the conveyance from Williams and wife to Thomas O. Jones, although it was a mortgage, its record was notice to plaintiff of all rights which Jones could claim under it, without reference to the defeasance. Again, had the latter instrument properly appeared of record in its place among the miscellaneous records, the true condition of affairs would not have been disclosed. Such a record — the deed in the record-book of deeds, the contract in the book of miscellaneous records would not appear to be the record of a mortgage. Prima facie, the record of the two instruments would be that of a conditional sale (Buse v. Page, 32 Minn. 111), but prima facie only; for the real character of the transaction might otherwise be obvious, and undoubtedly its real character could be made to appear should occasion require: Phoenix v. Gardner, 13 Minn. 396 (430); Butman v. James, 34 Minn. 547; Wakefield v. Day, 41 Minn. 344. The interest of Thomas O. Jones as a mortgagee was fully protected by a record of the absolute conveyance to him; and it may be added, in this connection, that there was no merger of his mortgage when the land was sold and conveyed to the defendant Robert D. Jones: Flanigan v. Sable, 44 Minn. 417. The fact must be apparent that the plaintiff's judgments were liens upon the debtor's equity of redemption in the land, except as to the eighty acres which he occupied and held as a homestead. The record in the office of the register of deeds showed Thomas O. Jones to be the owner in fee of the land. Taking this record in connection with the unrecorded defeasance, and prima facie the transaction was a conditional sale to the judgment debtor, Williams. As a matter of fact, susceptible of proof, the debtor was a mortgagor holding an equity of redemption in the premises. There could be no method adopted by the mortgagor, the mortgagee, or the purchaser the latter, as found by the court, having knowledge. of the facts by which the plaintiff could be deprived of his liens. As the record showed the title to the land to have gone absolutely from Williams, the debtor, to Jones, the mortgagee, years before the judgments were docketed, and thereafter to have passed directly to Jones, the purchaser, wholly failing to disclose the mortgagor's real interest when the judgments were docketed against him or at any subsequent time, the plaintiff was entitled, on the facts found, to a conclusion of law declaring these judgments to have been liens upon all of

the land except the homestead, subject and secondary to the mortgage interest held by Thomas O. Jones.

The case is remanded, with instructions to amend the judg ment in accordance with these views.

Deed and Defeasance — Mortgage — Record of Deed. — A deed with an unrecorded bond to reconvey, as between the parties, constitutes a mortgage only; but as to third parties without notice, it conveys the fee: Knight v. Dyer, 57 Me. 174; 99 Am. Dec. 765. A deed accompanied by a separate defeasance is merely a mortgage; yet it must be recorded as such, in order to give notice of its real effect to subsequent bona fide purchasers: Manufacturers' etc. Bank v. Bank of Pennsylvania, 7 Watts & S. 335; 42 Am. Dec. 240, and particularly note. A deed absolute, accompanied by a defeasance, will, if the defeasance is not recorded, though the deed is recorded, be treated as an unrecorded mortgage and postponed to the lien of a subsequent judgment: Friedley v. Hamilton, 17 Serg. & R. 70; 17 Am. Dec. 638, and note. In Steen v. Mark, 32 S. C. 286, where S. conveyed, by absolute deed to secure a debt, lands to M., which M. subsequently conveyed to A., who had notice of all the facts, S. was allowed to maintain an action to redeem against M. and A. upon payment of the debt.

NOTICE OUTSTANDING EQUITIES. — One who takes a deed of land with knowledge of an outstanding equitable right or title in a third person, takes it subject to such outstanding right: McCone v. Courser, 64 N. H. 506.

GILBERT V. How.

[45 MINNESOTA, 121.]

POWERS OF ATTORNEY RECEIVE A STRICT INTERPRETATION, and the authority given by them is never extended by intendment or construction beyond that which is given in terms, or absolutely necessary to carry the authority into effect.

JOINT POWER OF ATTORNEY GIVEN BY TWO PERSONS, authorizing another to enter upon, take possession of, and convey all lands in which they may be interested, does not authorize the donee of the power to convey lands in which one only of the donors is interested, and a conveyance made in the name of both is void, unless both had an interest in the lands con. veyed.

EJECTMENT. The plaintiff claimed title under Mary A. Clarke, a former owner of the property, under a conveyance purporting to be made by Mary A. Clarke and Benjamin F. Bucklin, by Franklin Chase, their attorney in fact. The question was, whether this conveyance transferred her title. Judgment for the defendant. Plaintiff appealed.

H. J. Peck, for the appellant.

Southworth and Coller, for the respondent.

COLLINS, J. The deed in which Mary A. Clarke and B. F. Bucklin were named as grantors, and George A. Bucklin as grantee, was executed by Bucklin in person, and by FranklinChase in behalf and as the attorney in fact of Mary A. Clarke. The land described therein was then the sole property of the grantor last mentioned, so far as was shown by the record, Bucklin having no interest in it. The power of attorney, by virtue of which Chase assumed to act, was a joint power, executed and delivered to him by Mary A. Clarke and B. F. Bucklin. By its terms, the latter constituted and appointed Chase "our true and lawful attorney for us, and in our names," to enter upon and take possession of all lands "to which we are or may be in any way entitled or interested, and to grant, bargain, and sell the same, . . . . and for us and in our names to make . . . . and deliver good and sufficient deeds; . . . . and we do hereby further constitute the said Chase our attorney, and in our names to transact and manage all business; . . . . and also in our names to demand, sue for, recover, and receive all sums of money," etc.

All powers of attorney receive a strict interpretation, and the authority is never extended by intendment or construction beyond that which is given in terms, or is absolutely necessary for carrying the authority into effect, and that authority must be strictly pursued: Rossiter v. Rossiter, 8 Wend. 494; 24 Am. Dec. 62; Brantley v. Southern Life Ins. Co., 53 Ala. 554; Bliss v. Clark, 16 Gray, 60. This rule was applied in Rice v. Tavernier, 8 Minn. 214 (248); 83 Am. Dec. 778; Greve v. Coffin, 14 Minn. 263 (345); 100 Am. Dec. 229; Berkey v. Judd, 22 Minn. 287. And a party dealing with an agent is chargeable with notice of the contents of the power under which he acts, and must interpret it at his own peril: Sandford v. Handy, 23 Wend. 260; Nixon v. Hyserott, 5 Johns. 58.

The power under which Chase pretended to convey a tract of land, the sole property of Mary A. Clarke, must be construed as authorizing him to convey such lands only as were held and owned by his two constituents jointly or in common, and not the lands held and owned by either and separately. By its terms, the attorney was not empowered to convey land held and owned as the undivided property of one, and in which the other had no interest, nor was he given authority to transact any business, except that in which the parties were jointly concerned. The authority was special, and the written power joint in form. No mention was made of the separate