Best v. Gunther

104 N.W. 82, 125 Wis. 518, 1905 Wisc. LEXIS 170

• Court: Wisconsin Supreme Court
• Decided: October 3, 1905
• Status: Published

Opinions

The following opinion was filed June 23, 1905:

SiebecKeb, J.

The question presented is whether the recording of the instrument signed by Mary T. Gunther, purporting to revoke the power granted to her husband to convey her lands, operated to terminate this agency. The common law required that a revocation of such authority be brought to the personal notice of the agent. Kelly v. Phelps, 57 Wis. 425, 15 N. W. 385; Walker v. Denison, 86 Ill. 142. It is not claimed that, at the time he executed the mortgage here involved, Arthur W. Gunther had been actually notified that his authority under the letter of attorney had been revoked, nor is it claimed that plaintiff had actual notice that the defendant Mary T. Gunther had taken any steps to revoke it. It is urged that the statutes providing that letters of attorney and other instruments containing a power to convey lands as agents or attorneys for the owner may be recorded in the office of tbe register of deeds of tbe county wherein tbe lands to wbicb tbey relate are situated, and that tbe authority granted by such a letter or other' instrument shall not be deemed revoked by any act of the party who executed it unless the instrument containing such revocation be also recorded in the same office, are an abrogation of the common-law rule, and that the recording of an instrument of revocation in itself effects a termination of the agency and serves as a notice to all persons. This contention is, however, not justified by the terms of the recording statutes. The extent to which the recording of instruments, under the statutes, shall be deemed notice thereof is specified by these enactments, and they contain no provisions declaring expressly or by implication that the recording of these instruments shall be deemed an abrogation of the common-law rule which requires the giving of notice to terminate the authority granted by them. Sec. 2242, Utats. 1898, defining what the term “conveyance,” as affecting title to land, shall be construed to embrace, clearly indicates that a letter of attorney and an instrument revoking the authority conferred thereby are not included within the terms used in this chapter, and they can therefore not be affected by the provisions of.the statutes which declare the effect of recording conveyances of real estate, and which were enacted for the purpose of protecting subsequent purchasers in good faith and for a valuable consideration. Fallass v. Pierce, 30 Wis. 443; Gilbert v. Jess, 31 Wis. 110; Pringle v. Dunn, 37 Wis. 449; Girardin v. Lampe, 58 Wis. 267, 16 N. W. 614; Edwards v. McKernan, 55 M6ich. 520, 22 N. W. 20; Bailey v. Galpin, 40 Minn. 319, 41 N. W. 1054.

, The context of secs. 2237, 2246, Stats. 1898, providing that letters of attorney and other instruments containing powers to convey lands may be recorded as therein prescribed, and when- so recorded shall not be deemed revoked by any act of the party who executed them unless the instrument of revocation be also recorded in the same office, contains nothing to the effect that such recording is necessary to give them validity, and it is not prescribed that the recording of the instrument of revocation shall take the place of the actual notice to the agent required at common law to terminate it. The case of Arnold v. Stevenson, 2 Nev. 234, is relied on as authority to the effect that the recording of the instrument of revocátion operates, under the statute, as a notice to the agent and all persons dealing with him that the authority is terminated. The decision cannot serve as an authority for the construction of our statute, for the reason that the Nevada statute on the subject expressly provides that the recording of the instrument shall “import notice to all persons of the contents thereof,” and, as above stated, our statute contains no such provision. It is manifest that, since the statute does not operate to give such notice, it is necessary to comply with all the requirements of the common law for revoking the authority granted by a letter of attorney or other instrument containing a power to convey land; but, when such instrument has been recorded, a common-law revocation shall be ineffectual unless the instrument of revocation shall also be recorded in the same office. Applying this rule to the facts of the case, we must hold that Arthur W. Gunther had power to execute the mortgage which plaintiff now seeks to foreclose,, and that the judgment appealed from was properly awarded. No other question arises for consideration.

By the Court.• — Judgment affirmed.

A motion for a rehearing was denied, and the following-opinion filed October 3, 1905 :