Dupont v. Wertheman. cording to its terms, the respondents might have said, if such were the fact, they were protected because they purchased on the faith that what seemed to be, was; but they stand in no such position. They saw no legal title in Price: at most he had a mere apparent equity; and this equity they were bound-as is the assignee of a chose in action or executory agreement-to look into and ascertain the true condition of. They took the place of Price: Price was in the shoes of Van Nostrand, and Van Nostrand and Price simply had no title at all, as against Dupont. If the contrary is held, it results that Van Nostrand got Dupont's land as a mere agent for Price, giving nothing for it, when the power under which he got it only authorized a sale of it; and Price would get from Van Nostrand the title, so conferred on him, to his principal's land, when he had only power to sell it for him. In other words, it would have to be held that an agent, empowered to sell, can change the title of his principal's property by the empty juggle of giving it to an accomplice for nothing let the latter convey it to him for nothingand then put his constituent at defiance! If he were to convey directly to himself for nothing, it would be void-but if he conveys indirectly to himself, it is good! Many authorities might be cited to show that there is no material distinction in this country, and at this day, between law and chancery as to fraud and its effect upon contracts; but that is unnecessary for here the question between these parties and their privies is, not whether there was fraud in the sale, but whether there was any sale. That though as between the attorney and third persons, purchasers of the legal title, the form of a sale is as good as the fact of a sale, yet as between the parties themselves and their privies there must be an actual sale; and that an agent can not, by his own ipse dixit, change the nature of a transaction so as to protect himself from all inquiry as to whether he pursued his power or violated it: whether he sold his constituent's property or gave it away to himself. To conclude: The counsel have cited no case in which the word "assign," standing alone, has been held to pass a fee. The New York cases (see 10 and 18 Johns.) rest on the Statute of Uses. But we have no such statute. According to the argument, I see no difference between a legal and equitable estate in lands. But even there it is not shown that the word "assign" alone would pass the fee, especially if no such word as "heirs," showing an intention to sell the estate, were used. In the cases, the words were taken in connection with the manifest intent otherwise shown. The word "assign" meaning a mere transfer, and no defined interest, estate, quantum, or portion describedcertainly is neither the natural or appropriate term whereby to convey or sell an estate. If I say to B, "I hand over to you my land," this is not in legal language a sale of it-it gives him Dupont v. Wertheman. some control or dominion, but it does not indicate what; the same word might show dominion for a day, a year, or forever. It is not, therefore, a word of grant. According to the argument, this would be a good deed: "I assign AB my farm called A." This rule will certainly introduce great simplicity in conveyancing, and it is a pity Chancellor Kent had not thought of it when he gave his form; but the rule goes still further: I may sell by merely writing on a deed "I assign the within instrument, and every clause, article, and thing, therein contained, to B;" and as, by the remarkable philology of our antiquarian linguists, land is a thing contained in a deed-a part of the deed, I suppose the fee goes. We contend that it is clear this was not the meaning: 1. Because the word "assign," written on the back of the deed, and expressly referring to the deed as the thing assigned, applies only to the paper. 2. Because the words used are the form of an assignment of a lease. 3. Because the natural signification of the words is as we allege. 4. Because the word "assign" is never applied to sales of land, but, when written on a paper, applies to the paper-the instru ment. 5. Because, if a sale were intended, the word "heirs," or some other conveying the inheritance, would have been used. 6. Because the paper is (like Sutter's, in Mesick's case,) a power of attorney, which forbids the idea of a sale of the fee. 7. Because the design evidently was not to sell to Price, but to give the control to Price as the attorney of Dupont. The true rule is, that where the fraud attaches to the execution of the deed, (as here, as being without authority,) or is cotemporaneous with the deed-as procured by fraud-it may be as well assailed at law as in equity. 23 Wend., 267; 14 Pick., 303; 18 Ib., 95; 14 Conn., 123; 4 Mass., 92; 7 Ib., 119; 16 Ib., 348. But there could be no such question here, for the paper of Van Nostrand which we attack, was not under seal-it was no deed: and passed no title. We think it unnecessary, however, to consume time by discussing this matter, for the reason that we contend that the paper is void, as evidence of a sale, when in truth there was no sale, but a mere gift; in other words, the attorney Price had no right to make it. He was only authorized to sell, and he did not sell. To remove the misapprehension of counsel as to our first point, I will briefly restate: A deed, not in fact authorized, though in form good, passes no title whatever to the grantee cognizant of the facts: but such grantee may give effect to it by selling to a vendee ignorant of the fraud or want of authori Dupont v. Wertheman. ty, upon the principle that it is equitable to protect the innocent; the principal is estopped: the guilty grantee has only title for the one purpose of conveying it to an innocent purchaser; but this must be a purchaser of the legal title: Van Nostrand took no other title than this-strictly he took no title at all, any more than the purchaser of goods under false pretences: and he conveyed only an apparent equity to Price-not the legal title: hence Price never had against us the legal title, and could not convey it: but the legal title, not affected by this trick, is still in us. We think the cases cited by us, as well as the reason of the thing, show conclusively that a quit-claim-deed made under a power of attorney, which power is general in its terms authorizing a sale of the principal's property, can not authorize a sale of any property which is not owned in proprietary right by the principal. Under such a power the purchaser must, at his peril, see to the condition of the title; for the doctrine of caveat emptor applies in its full strictness to such a case. FIELD J., delivered the opinion of the Court-TERRY, C. J., concurring. The power of attorney from the plaintiff to Price, authorized a sale of the premises. It did not authorize a gift of the property, or its transfer for any purpose, except in completion of a sale. The deed to Van Nostrand was not executed upon any sale. No consideration was paid, or stipulated to be paid. Both Price and Van Nostrand agree, in this respect, in their testimony. Price states that he transferred the property in order that Van Nostrand might control it and keep off trespassers, giving to him the privilege of retaining it for eight thousand dollars. He did not elect to retain it, nor did he offer to pay any portion of this sum. Van Nostrand states that the conveyance was made to him, in trust, for the wife, or some member of Price's family. It is immaterial for what purpose the deed was given, as it was not executed upon a sale. The power was special, and the deed not being in pursuance of the power, could not pass any title from the plaintiff to Van Nostrand. Nor was there any ratification of this conveyance by the plaintiff. He was not aware of its existence. No information was communicated to him on the subject. It is true $4000 was sent to him on account of his property generally, but not on account of the proceeds of any sale. presumption of ratification can be indulged, as knowledge of the alleged sale, with its attendant circumstances, was not brought home to him. (Billings v. Morrow, 7 Cal., 171.) Νο As between the plaintiff and Van Nostrand, the conveyance had no more effect than if it had recited on its face that Price was only authorized to sell the property; but, for reasons best known to himself, made the conveyance without a sale. No parade of Dupont v. Wertheman. authorities could give to such an instrument any operative force in favor of a subsequent purchaser. These facts existing, though not apparent on the face of the deed, the same result must follow as between the parties. As between them, it was a nullity. In appearance, it conferred title, while, in fact, no title passed. The question of protection to a bona fide purchaser, without notice, relying upon the form of the deed, can not arise unless some conveyance was subsequently executed by Van Nostrand; and this involves an inquiry into the effect of the assignment endorsed on the back of the deed. It is as follows: "Know all men by these presents, that I, the within-named Avert M. Van Nostrand, of the city of San Francisco, State of California, in consideration of $8000 paid to me by Rodman M. Price, of the city of New York, have assigned to the said Rodman M. Price, and his assigns, all my interest in the within instrument, and every clause, article, or thing, therein contained, and I do hereby constitute the said Rodman M. Price my attorney, in my name, but to his use, to take all legal measures which may be proper for the complete recovery and enjoyment of the assigned premises, with the power of substitution. "Witness my hand and seal, this 30th day of August, 1858. "A. M. VAN NOSTRAND." This instrument was executed during the absence of Price from the State, and without his knowledge, and without any consideration therefor, and was never delivered. It is not under seal, and contains no words conveying any estate in the land. (Lessee of Bentley's Heirs v. De Forest, 2 Ham., 222; Porter v. Read, 19 Maine, 365; Wood v. Partridge, 11 Mass., 490; Clark v. O'Margay, 2 Brevard, 134; Towner v. Moore, 1 Brevard, 236; 4 Kent, 452.) It would seem a waste of time to cite authorities on the position that this instrument did not pass the legal title. And if we admit that the instrument was delivered, and the consideration paid, it could only create in Price an apparent equity, and the rule is well established that the purchaser of a real equity, even, is bound by a prior equity. The purchaser of an equitable title takes the property subject to all existing equities. He is not within the rule which protects a bona fide purchaser for value, and without notice, of the real or apparent legal title. He must take the imperfect title, with all its imperfections. (Chew v. Burnett et al., 11 Seargt. & Rawle, 393; Vattier v. Hinde, 7 Peters, 252.) How, then, stands this case? Price, by the assignment, acquired an equity against Van Nostrand. The vendees of Price took only this equity, if anything. Upon inquiry, they would have found that the equity was only apparent; that the title was, in appearance, in Van Nostrand, but really in the plaintiff; that the conveyance to Van Nostrand, in fact, passed nothing, because not executed upon any sale in pursuance of the power to Price. Dennis v. The Table Mountain Water Company. The purchasers from Price stood in his shoes, and as he had no legal title, he conveyed none, and as against the plaintiff, neither Price or Van Nostrand possessed either legal or equitable title. It is unnecessary to pursue the consideration of the points of the appellant any further. The views we have taken go to the marrow of the case, and conclude the defence. Judgment reversed, and cause remanded. [Baldwin, J., having been counsel in the Court below, did not sit in the case.] DENNIS DENNIS et al. v. THE TABLE MOUNTAIN WATER CO. Where a decree, rendered in a suit against a corporation, contained a direction for the sale of the interest of individuals not parties to the suit, and from such decree the corporation alone appealed: Held, that the corporation could not take advantage of the error in the decree in embracing individuals. Where a draft is drawn by the president and secretary of a corporation upon its treasurer, no notice of presentation and non-payment is necessary to hold the corporation. The draft in such case is only an order of the corporation upon itself. APPEAL from the District Court of the Fifth Judicial District, County of Calaveras. The facts of the case appear in the opinion of the Court. Beatty & Robinson for Appellants. Latham & Sunderland for Respondents. FIELD, J., delivered the opinion of the Court-TERRY, C. J., and BALDWIN, J., concurring. The defendants are an incorporated company, and the action is brought upon a draft and mortgage alleged to have been executed by them. The draft is drawn upon the treasurer, and is signed by McCall, the president, and Clary, the secretary, of the company. The mortgage is signed in the same way; and the complaint avers that both draft and mortgage were executed by the corporation, by its president and secretary, "for that purpose duly authorized and empowered," and is verified. The answer contains-first, a general denial of the allegations of the complaint, and then a specific denial of the execution of the mortgage by the corporation, and of any right or authority in the president and secretary to execute the same, and of any |