I. In case of sale under a power, " the regularity of the sale is to be made out as a part of the purchaser's title, and if irregular, he takes nothing by his deed." (Jacksou ex dem. Rogers v. Clark, 7 Johns. 226.)
No title passes unless all the essential requisites of the power are complied with. If thepower authorizes a sale of the whole land, or such part as may suffice to discharge the instalments then due, a sale for the payment of instalments due and to become due, is void. (Ormsby v. Larascon, 3 Litt. 404.)
There may be cases in which a conveyance by trustee, attended with some irregularity, will not be considered as void in law. The entire legal estate being in the trustee, his deed may be sufficient to transfer that estate to another; and whilst circumstances might induce a Court of Equity to set it aside, or enforce the trust against the vendee, yet the deed might be regarded as good in law to pass the estate. But it is not every conveyance made by a trustee that will be upheld in law; and generally a special authority must be pursued. (Denning v. Smith, 3 J. Ch. 344; Berger v. Duff , 4 Id. 369; Sherman v. Dodge , 6 Id. 110.)
In the case at bar, the mortgagee in attempting to convey the entire estate in extinguishment of the mortgage, if it may be so called, acts under a mere power, and must have complied with all that is required by the terms of the instrument creating that power, in order to render the conveyance legally operative.
1. Thereis no proof that the sale was made by or under the immediate superintendence of the mortgagee, or that ten days' public notice had been given.
The deed from Ellis to T. Sprague contains a recital to the effect that notice of the sale had been published ten days in the Alta California, but there is no proof of the fact. There is another recital which is demonstrably untrue in the same instrument. The recitals, however, are not evidence upon the objection under discussion. It is not even pretended, on the other side, that there is any direct evidence of the publication of notice.
2. The propriety of allowing a mortgagee, who is himself the creditor, to execute the power of sale, has, upon general principles, been often doubted, and in some cases expressly denied. (Ford v. Russell, 1 Freem. Ch. 42.)
The provisions of the Act of 1850, chap. 142, secs. 109-111, seem to constitute a decided inhibition against the execution of the power of sale except through the interposition of the Court.
Be that as it may, however, the mortgagee cannot delegate the power to another. The power being coupled with an interest, may be so far regarded a power appendant as to passby an assignment of the mortgage, (Jenks v. Alexander, 11 Paige, 619,) but the mortgagee cannot commit its execution to another person, unless the right of substitution is expressly given. (Berger v. Duff, 4 J. Ch. 367; Heyer v. Deaves , 2 Id. 164.)
II. The recitals in a deed given by the attorney cannot be received as evidence against the principal, upon any general principle or rule of law. Deeds made by public officers, and containing certain recitals, are, by statute, sometimes made prima facie evidence of the facts recited; but all such statutes are in derogation of the common law, and are limited in their application to the cases therein expressly named.
Where the attorney has a discretion to sell and convey in what manner he pleases, a purchaser in good faith has nothing to do but pay the purchase money and take his deed. So, where his instructions as to the mode of procedure are secret. But where the manner, terms, and conditions of the sale are all distinctly set forth in the written letter of attorney, the purchaser is bound at his peril to see that there has been a compliance, and to prove the fact whenever he claims title under it.
To say thatthe deed itself is prima facie evidence of the performance of all antecedent steps on the part of the attorney in fact, would be a denial of the rule of law which imposes upon the party setting it up the burden of proof.
The time which has elapsed since the date of the conveyance in question can have no material bearing on the point under discussion, except so far as it may have occasioned the loss or destruction of the highest evidence of the facts sought to be established.
In Gray v. Gardner , 3 Mass. 398, and Pejepscot Proprietors v. Ransom , 14 Id. 145, all sources of proof had been exhausted. In the former, the sale had been made by an administrator under the order of a Court, and subject to its supervision and sanction. In the latter, it was made by a municipal officer in the discharge of his official duty, and the vendee had been in possession of the deed, and of the land to which it related, for more than thirty years.
The case at bar is clearly distinguishable from either of those.
In cases of conclusive presumption the rule of law merely attaches itself to the circumstances when proved, and is not deduced from them. It is not a rule of inferencefrom testimony, but a rule of protection. (1 Greenl. Ev. sec. 32.) Of course, the rule in that class of presumptions does not apply here; for, if it did, the final act of the agent in giving the deed would be conclusive as to the performance of all precedent conditions.
III. It is said that the deed from Ellis to Isaac Eckstein has been ratified: 1st, by long acquiescence; and 2d, by receipt of the purchase money.
The argument on the first ground loses its force when we come to notice the fact, that the appellant is not connected by any derivative conveyance with the deed from Ellis to Isaac Eckstein. There is no proof that he entered or holds under it. For aught that appears, his possession is adverse to both Isaac Eckstein and respondent.
As to the second ground, there is no evidence that Sprague claimed any reduction of the demand, except what is disclosed by the judgment roll in Ellis v. Sprague & McDougall .
In that action, Sprague seems to have offered to allow judgment to be taken for the sum of $ 3,220, with interest from the twentieth of March, 1851.
There is nothing to connect that offer with the alleged sale on the twentieth day of March, 1851, except the mere coincidence that interest was to run from the same day. That circumstance is more than overcome by the great discrepancy between the rate of reduction and the avails of the sale; and hence, what counsel denominates " strong and conclusive presumption," is sought to be fortified by conjecture.
If the offer of Sprague had any reference whatever to the circumstances of that sale, it must have been well understood by Ellis who accepted the offer; the appellant, therefore, had the opportunity of proving the fact directly, by interrogating Ellis on the point. It can hardly be possible that Sprague could have done any act, in 1853, by which he intended to recognize the validity of the sale referred to, when, in fact, the mortgage had been released of record long before. This, it will be remembered, appears from the appellant's own evidence, without any attempt to weaken its effect, or to explain it in any way.
IV. It is said that Simson is in no better position than Sprague.
That is not necessarily so. He may be properly chargeable with notice of what was duly recorded. But the mere fact that the appellant was in possession (if such was the fact) at the timeof Simson's purchase, was no notice to him of the rights of Isaac Eckstein in that lot, however acquired.
The doctrine of Hunter v. Watson is, " that the open, notorious possession of real estate, by one having an unrecorded deed for it, is evidence of notice to a subsequent purchaser, of the first vendee's title." The principle seems to be, that the fact of possession directs or suggests inquiries on the part of the intended purchaser, touching the right of the actual possessor. But it does not extend to the title of a stranger. Possession by a lessee has been held to be no notice of his title of the lessor; and a fortiori, it cannot be of title in a third person with whom there is no privity.
The whole defense consists of an attempt to establish an outstanding legal title in opposition to the title of the respondent. Of course, such defense can be made. It is sufficient to show that the right of entry is not in the plaintiff in ejectment. But after he has once made a case by proof of a title in himself, in order to defend the possession by proof of title in another, it must be such a title as would enable that other to recover the possession as against the plaintiff.
JUDGES: Crocker, J. delivered the opinion of the Court. Cope, C. J. concurring in the judgment.
OPINION
CROCKER, Judge
This is an action to recover possession of one hundred vara lot No. 210, in the City of San Francisco. Both parties claim title under one Sprague, who, on the twenty-sixth day of November, 1850, mortgaged the lot, with several others, to Ellis, to secure a promissory note for $ 4,000, with interest at five per cent. per month, and due February 26th, 1851. The mortgagor, by the terms of the mortgage, appointed Ellis his attorney in fact, to sell the property, in case of the non-payment of the note, at public auction, after giving ten days' public notice of the sale, and as such attorney, to execute and deliver to the purchasers good and sufficient deeds of conveyance therefor. In pursuance of this authority, Ellis, on the twentieth day of March, 1851, caused the lot in question to be sold, by a firm of auctioneers in the City of San Francisco, at public auction, to Isaac Eckstein, for one hundred and sixty-five dollars, and in pursuance of the sale, he, as the attorney in fact of Sprague, and in the name of the latter, executed, acknowledged, and delivered to the purchaser a deed for the lot, which was duly recorded on the twenty-ninth day of March, 1851. This deed, among other things, recites that the sale had been advertised for ten full days in the Alta California, a paper published in the city. The mortgage appears to have been twice canceled on the record, one being dated April 7th, and the other April 12th, 1851. This is the title under which the defendant claims. The plaintiff claims under a deed executed to him by Sprague, bearing date the twenty-first day of April, 1858. The case was tried by the Court, who rendered a judgment for the plaintiff, from which, and from an order refusing a new trial, the defendant appeals.
The evidence shows, in addition to the foregoing facts, that the defendant, Solomon Eckstein, bid in the lot at the sale, paid the purchase money, and took the deed which was delivered to him. The defendant fenced in the lot in 1853, has occupied it ever since, graded it three or four years before the trial, and has paid the taxes on it. On the fourth day of February, 1853, Ellis commenced an action to recover the amount due on the promissory note against Sprague, and one McDougall, who was an indorser thereon. Summons was served on both defendants, and on the seventh day of April, Sprague filed an offer to allow judgment to be taken against him for $ 3,520, with interest from the twentieth day of March, 1851, at five per cent. per month, which was accepted by the plaintiff, Ellis, and judgment rendered accordingly on that day. The complaint in this action was filed on the sixth day of June, 1859.
The plaintiff insists that there was no proof that Ellis advertised the sale as required by the power in the mortgage; to which the defendant replies that no such proof was necessary, and, if necessary, the recital of the fact in the deed to Eckstein is sufficient proof, and if not, that it will be presumed. It seems to be well settled that in sales of real estate by Sheriffs, it is only necessary to prove their power to sell by producing the judgment and execution. (2 Phillips' Ev., C. H. & E.'s Notes, 364.) And it is not necessary to show that notice of sale had been given as required by the statute, it being considered as merely directory. (Smith v. Randall , 6 Cal. 50; Hayden v. Dunlap, 3 Bibb., 216; Hanson v. Barnes' Lessee, 3 Gill & Johns. 359.) We see no good reason why the same rule should not apply to deeds executed by private individuals under a power, but it seems to have been decided otherwise in several cases. (Jackson v. Clark, 7 Johns. 226; Ormsby v. Tarascon, 3 Lit. 404; Denning v. Smith, 3 J. Ch. 332; Sherman v. Dodge , 6 Id., 107.)
Though such is the general rule, it has often been qualified and controlled by circumstances. Thus in Bergen v. Bennett, (1 Caines' Cases, 16,) it was held by Justice Kent, that after a mortgagor had lain by for sixteen years, he should not then be permitted to come in and question the legality of the notice under which the property had been sold, and every presumption was to be made in favor of the notice. In that case, a less time than that fixed by the Statute of Limitation of New York was held to estop the party, while in the present case the time during which the mortgagor has lain by without questioning the regularity of the sale far exceeds the time fixed by our statute. So in Gray v. Gardner , 3 Mass. 399, where the real estate of an intestate had been sold by the administrator, it was held that a great lapse of time before the legality of the sale was questioned, the acquiescence of the heirs, and evidence of the publicity and fairness of the sale, were held to be strong circumstances to prove that the sale was regular, and that it had been duly advertised. Lapse of time and acquiescence in the possession of the purchaser have been held sufficient to raise presumptions in favor of the regularity of even tax sales. (Pejepscot v. Ransom , 14 Mass. 145; Read v. Goodyear , 17 S. & R. 350; Freeman v. Thayer, 33 Maine, 76.) In the present case, Ellis acted as a duly authorized agent of Sprague in selling the property and making the deed, and the presumption is that he duly and faithfully performed the duty required of him. (1 Phillips' Ev., C. H. & E.'s Notes, 604.) This rule extends to every man, both in his official and private character. So, too, it is presumed that a deed of a trustee, having power to convey upon a certain contingency, was not given until after the contingency happened, (Morrison v. McMillan, 4 Lit. 210,) and it is generally presumed that a trustee has faithfully executed his trust, (Shilknecht v. Eastburn, 2 Gill. & Johns. 115.) So, long acquiescence by one, in the adverse enjoyment of a right by another, leads to the inference that the former has parted with it in a legal form; and in time, may lead to the presumption of the necessary instruments of assurance, or of the requisites to make existing assurances valid against him. (1 Phillips' Ev., C. H. & E.'s Notes, 609.) Under a deed from executors authorized to sell the land at public auction, the deed is sufficient without showing that the sale had been publicly made, for the Court will presume that the executors had done their duty, and had sold in pursuance of the will. (Turnipseed v. Hawkins, 1 McCord, 272.) So, after a great lapse of time, the posting of advertisements necessary to the regularity of a proprietary meeting, may be presumed. (Society for Propagating the Gospel v. Young , 2 N.H. 310.) So, of a deed made by an attorney in fact: long acquiescence of the principal in the possession under the conveyance is evidence that the conditions on which the attorney was to make the deed had occurred, and that he did not transcend his power. (McConnell v. Bowdry's Heirs, 4 Mon. 395.) So, long possession under a deed made by an attorney, the power itself may be presumed. (6 Martin N. S. 153.) In some peculiar cases, this doctrine of acquiescence has been held to bar a party of most important rights, in very short periods of time: thus an acquiescence of nine years in a mining case was held sufficient. (Prendergast v. Turton, 1 Younge & Coll. Ch. Cases, 98.) So, of a delay of two years. (Walker v. Jeffreys, 1 Hare, 341; Birmingham Coal Co. v. Lloyd, 18 Vesey, 515.)
Again, the deed recites the fact that the notice of the sale was duly advertised, and this, it is insisted, is evidence of the fact. A recital in a deed of a material fact is held to be binding and conclusive upon the party reciting it, and against all claiming under him, as privies in blood, in estate, or in law. (1 Phillips' Ev., C. H. & E.'s Notes, 473, Note 130; 2 Id. 574, Note 476; Osborne v. Endicott , 6 Cal. 153.) In this case, the recital in the deed of Sprague, by his attorney in fact, to Eckstein, is made by him as the grantor, and it is therefore binding upon him and the plaintiff who claims under him by privity of estate. It is considered as an admission on his part, which the law will not allow him, or those claiming under him, to deny, and it applies very appropriately to the recital of a fact, like the present, which is supposed to be peculiarly within his own knowledge, or the knowledge of his attorney who is acting for him. In such case, it has been held to be a covenant of the existence of a recited fact. (2 Cal. 575, Note 476.)
The fact that this recital, admission, and representation of the publication of the notice, was made in a deed executed by Sprague's agent and attorney, can make no difference, and it is equally as binding upon him as though he had himself executed the deed. It was a representation and admission by the agent respecting the subject matter of the agency, within the scope of his powers as agent, made at the time, and in fact constituting a part of the res gestoe, and therefore is binding upon the principal. (Story on Agency, secs. 134, 135.) And it has been held that even the fraudulent or negligent statements, misrepresentations, and concealments of the agent will have the same effect, in many cases. (Story on Agency, sec. 139.) If the recital in this case is not true in fact, and the principal has been injured thereby, he may have a remedy against his agent; but a Court of Equity will not permit him, or those claiming under him, to controvert or vitiate his own deed, and thus perpetrate a fraud upon an innocent purchaser, who bought and paid his money in good faith, relying upon the recitals in the deed as evidence of the validity of his title, and who has thereby been induced to expend money in the improvement of the property and the payment of taxes thereon. The plaintiff occupies no better position than Sprague. Eckstein's deed was duly recorded, and he had full notice of the deed and its recitals, as well by the record as by the actual possession of Eckstein.
It is objected, however, that the defendant, Solomon Eckstein, did not connect himself with the title of the grantee in the deed, Isaac Eckstein. It can make no difference, as far as concerns the present action, whether he did or not, for it is only necessary for him to show that the plaintiff is not entitled to the possession of the property, and this he has done by the deed from Sprague to Isaac Eckstein. This is sufficient to defeat the plaintiff's action. But he has gone further, and proved that he was in fact the real purchaser, that he paid the purchase money, that the deed was delivered to him, and that he has taken and held possession under it. These facts vest a clear, equitable title in him, and show that the grantee named in the deed is a mere naked trustee, holding the legal title for his use. When a man buys land in the name of another, and pays the consideration money, the land will generally be held by the grantee in trust for the person who so pays the consideration money. This principle has its origin in the natural presumption, in the absence of all rebutting circumstances, that he who supplies the money means the purchase to be for his own benefit, rather than for that of another; and that the conveyance, in the name of the latter, is a matter of convenience and arrangement between the parties, for other collateral purposes. (2 Story on Equity, sec. 1201; Hidden v. Jordan , 21 Cal. 99; Wells v. Robinson , 12 Id. 141; Osborne v. Endicott , 6 Id. 153.) The fact that Sprague admitted on the record, in the suit on the note, that there was due on the note the sum of $ 3,520, an amount less than its face, with interest from the twentieth day of March, 1851, that being the very day of the sale of the mortgaged property, together with the fact that no foreclosure of the mortgage was asked for in that suit, affords very strong presumptive evidence that he knew of the sale of the property mortgaged, and of the application of the proceeds of the sale upon the mortgaged debt. There can be no doubt that the purchase money paid by Eckstein was applied on the mortgage debt, and was thus virtually received by Sprague. We consider this receipt by him of this purchase money as a clear waiver by him of all objections to the sale, and as a virtual ratification or acquiescence in the acts of his agent in relation to the sale and conveyance. He certainly has no right to retain the purchase money and at the same time repudiate the deed for which the money was paid. He has no right to both the land and the money. He who asks equity must do equity. By receiving the money he elected to affirm the sale, or he thereby at least waived all objections to it, and he is estopped from afterwards contesting its validity. (Forrestier v. Bordman, 1 Story, 52; Palmerston v. Hexford , 4 Denio, 166; Pickett v. Pierson, 17 Vermont, 478.)
Again, the defendant in this case has held the actual, adverse, and undisturbed possession of the premises for more than six years, a period exceeding the time prescribed by our statute for the enforcement of a right of entry, and his possession cannot, therefore, be disturbed. " As a general doctrine, it has too long been established to be now in the least degree controverted, that what the law deems a perfect possession, if continued without interruption during the whole period which is prescribed by the statute for the enforcement of the right of entry, is evidence of a fee. Independent of positive or statute law, the possession supposes an acquiescence in all persons claiming an adverse interest; and upon this acquiescence is founded the presumption of the existence of some substantial reason (though perhaps not known) for which the claim of an adverse interest was forborne. Not only every legal presumption, but every consideration of public policy requires that this evidence of right should be taken to be of very strong, if not of conclusive force." And the same doctrine is acted upon in a Court of Equity. (Angell on Limitations, 396, 399, 401; Grattan v. Wiggins, ante. ) In the present case, the defendant took possession of the premises in good faith, in the full belief that he, through his trustee, had a good title to the property, and with the intention to hold it against the whole world. The deed under which it was taken purported to convey the title in fee, and this possession was not only actual by a substantial inclosure, but it was adverse to Sprague and all claiming under him, and the rest of mankind. It was adverse in its inception, (though we do not think that fact essential,) and has so continued ever since. We think it clear that these facts constitute a full defense to the claim of title sought to be enforced by the plaintiff in this action. The Court therefore erred in rendering judgment for the plaintiff, and under the facts should have rendered judgment for the defendant.
The judgment is therefore reversed, and the Court below is directed to enter a judgment for the defendant for his costs.