By the Court,
DlXON, 0. J.
I think that the defense to this action depends solely upon the equitable rights set up in the answer and shown by the proof, and that the defendant cannot show title at law through the deed executed by Mrs. Whiting to Sexton. It is conceded that the power of attorney to Mrs. Whiting from her husband was insufficient on its face to authorize the conveyance. I say it is conceded, because the defendant’s counsel deemed it unsafe to rest upon the power of attorney alone, but attempted to fortify it and to uphold the ■ deed by the introduction of a large amount of parol evidence. This parol evidence was offered and received ostensibly to show [610]*610tbe circi$hstances attending tbe execution of the power, in order to enable tbe court and jury to apply its provisions to tbe subject-matter; and one of tbe chief questions here is, whether it ought to have been admitted — whether such was in fact its tendency. I think it was inadmissible, for the reason that the subject matter to which the defendant thus seeks to apply the power, namely, the conveyance of land, is neither mentioned in nor fairly to be implied from the language of the instrument, To warrant the introduction of such evidence, there must, in my judgment, be something on the face of the instrument, either expressed or plainly implied, showing that the maker .intended to authorize the conveyance of lands. Otherwise, there are no provisions of the instrument, no subject matter, to which the parol evidence can be directed, and the rule of evidence relied upon by the defendant cannot come into action. To receive it would be to insert provisions and create a subject matter by parol, where none appeared by the writing, which is contrary to all settled rules. The subject matter and general intention of the maker must first be shown by the writing without the aid of extrinsic evidence, and then, no doubt, such evidence may be received to ascertain the particular subject in view at the time the writing was made, wherever its terms are equivocal or applicable indifferently to more than one subject.
In this case the efficient words of the power are, “ to bargain, purchase, sell, grant, release and convey, to accept and receive all sums of money, to collect and pay, to sue and be sued, to give notes and receipts and to accept the same of,- to and from all and every person or persons, and in my name to make, seal and deliver and acknowledge for me.” These are all. There is no allusion to land — nothing from which an authority to convey it can by implication arise. The only words tending to such implication are, “ bargain, sell, grant, release and convey" and perhaps “malee, seal, deliver and acknowledge.” They are consistent with an intention to give such authority, [611]*611but in tbe connection in wbicb they are found, they do not establish it. They are not at the same time inconsistent with the supposition that the maker did not intend to grant such authority. In my opinion both these things must concur before authority by implication can be said to have been conferred. The language of the instrument must not only be consistent with the power claimed, but must exclude every other reasonable hypothesis. In this instrument it appears that the attorney was to do other things in behalf of her principal. She was to purchase as well as bargain, sell and convey, to accept and receive all sums of money, to collect and pay, to sue and be sued, to give notes and receipts and to accept the same of, to and from all and every person or persons. This very clearly indicates an intention on the part of her husband to entrust Mrs. Whiting with the management and control of his ordinary business affairs and dealings, such as the purchase and sale of personal property, the collection and payment of debts, &c. The words relied upon to show an implied authority to convey land, though not, perhaps, some of them, usual in powers for the sale and transfer of personal property and the collection and payment of debts, are still not unsuited to that purpose. Such may have been the application intended, and I think it not unreasonable to suppose that it was. If it was, then a construction which would apply them differently and so as to enlarge the power and extend it to subjects not intended, would be an act of violence. If this power can be construed to authorize the sale or conveyance of land, I see no reason why it should not be also held to authorize the purchase. The inference in favor of the one is as strong as that in favor of the other, and yet I hardly think counsel would contend that Mrs. Whiting could have purchased lands and charged her husband with the price.
Besides it appears, from the defendant’s evidence, that Mr. Whiting, then a. resident of the county of Dane, was, at the . time of executing the power, about to go to the state of Oali-[612]*612form'a., and that he then was or soon expected to be engaged in the mercantile business in the county of Dane, which business was to be left in charge of his wife. It was so left and transacted during his absence. This seems to me conclusive against the construction urged in behalf of the defendant. The subject matter of the power is no longer doubtful, and the supposition that it might have been land is effectually excluded.
Very different was the case of Marr vs. Given, 23 Maine, 55, to which we are referred. There every word of the power tended unequivocally to the conclusion that it was authority to sell and convey land which ’ was intended, and admitted no .contrary supposition; and the court, holding that such authority might be imparted by implication, sustained the conveyance. The attorney was authorized “to bargain, sell, grant, release and convey;” “and upon such sale or sales convenient and proper deeds, with such covenant or covenants, general or special, of warranty, quitclaim or otherwise, as to my said attorney shall seem expedient, in due form of law, as my deed or deeds, to make, seal, deliver ■end acknowledge.” The power of attorney was silent as to what he was to sell and convey. It appeared that, the principal resided in a foreign country, and that he had no other land in the country of the agent than that embraced in the conveyance ; and the court applied the power to that. I am not disposed to criticize the decision. I do not think it inconsistent with the general doctrine so often sanctioned, that a power to convey lands must possess the same requisites and observe the same solemnities as are necessary in a deed directly conveying the lands. Clark vs. Graham, 6 Wheat., 577; Lombard vs. Aldrich, 8 N. H., 31; Gage vs. Gage, 10 Foster, 420; Lord vs. Sherman, 2 Cal., 498.
A question is also made as to whether the deed to Sexton was so acknowledged as to entitle it to be recorded, but as I hold "that the power of attorney did not authorize its execution, a discussion of that question becomes unnecessary.
[613]*613Coming to tbe equitable branch of the answer or defense, the case presents itself to my mind in a very different light. As it now stands upon pleadings and proof, I think the defendant’s right in equity to the land clearly established, and that he is entitled to the relief demanded by the answer against the title of the plaintiff. This branch of the defense depends upon the contract for the sale of the land by Mr. Whiting to Mrs. Sifert, which contract was afterwards assigned by Mrs. Sifert to Sexton, who entered into a contract to convey to Rap.
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By the Court,
DlXON, 0. J.
I think that the defense to this action depends solely upon the equitable rights set up in the answer and shown by the proof, and that the defendant cannot show title at law through the deed executed by Mrs. Whiting to Sexton. It is conceded that the power of attorney to Mrs. Whiting from her husband was insufficient on its face to authorize the conveyance. I say it is conceded, because the defendant’s counsel deemed it unsafe to rest upon the power of attorney alone, but attempted to fortify it and to uphold the ■ deed by the introduction of a large amount of parol evidence. This parol evidence was offered and received ostensibly to show [610]*610tbe circi$hstances attending tbe execution of the power, in order to enable tbe court and jury to apply its provisions to tbe subject-matter; and one of tbe chief questions here is, whether it ought to have been admitted — whether such was in fact its tendency. I think it was inadmissible, for the reason that the subject matter to which the defendant thus seeks to apply the power, namely, the conveyance of land, is neither mentioned in nor fairly to be implied from the language of the instrument, To warrant the introduction of such evidence, there must, in my judgment, be something on the face of the instrument, either expressed or plainly implied, showing that the maker .intended to authorize the conveyance of lands. Otherwise, there are no provisions of the instrument, no subject matter, to which the parol evidence can be directed, and the rule of evidence relied upon by the defendant cannot come into action. To receive it would be to insert provisions and create a subject matter by parol, where none appeared by the writing, which is contrary to all settled rules. The subject matter and general intention of the maker must first be shown by the writing without the aid of extrinsic evidence, and then, no doubt, such evidence may be received to ascertain the particular subject in view at the time the writing was made, wherever its terms are equivocal or applicable indifferently to more than one subject.
In this case the efficient words of the power are, “ to bargain, purchase, sell, grant, release and convey, to accept and receive all sums of money, to collect and pay, to sue and be sued, to give notes and receipts and to accept the same of,- to and from all and every person or persons, and in my name to make, seal and deliver and acknowledge for me.” These are all. There is no allusion to land — nothing from which an authority to convey it can by implication arise. The only words tending to such implication are, “ bargain, sell, grant, release and convey" and perhaps “malee, seal, deliver and acknowledge.” They are consistent with an intention to give such authority, [611]*611but in tbe connection in wbicb they are found, they do not establish it. They are not at the same time inconsistent with the supposition that the maker did not intend to grant such authority. In my opinion both these things must concur before authority by implication can be said to have been conferred. The language of the instrument must not only be consistent with the power claimed, but must exclude every other reasonable hypothesis. In this instrument it appears that the attorney was to do other things in behalf of her principal. She was to purchase as well as bargain, sell and convey, to accept and receive all sums of money, to collect and pay, to sue and be sued, to give notes and receipts and to accept the same of, to and from all and every person or persons. This very clearly indicates an intention on the part of her husband to entrust Mrs. Whiting with the management and control of his ordinary business affairs and dealings, such as the purchase and sale of personal property, the collection and payment of debts, &c. The words relied upon to show an implied authority to convey land, though not, perhaps, some of them, usual in powers for the sale and transfer of personal property and the collection and payment of debts, are still not unsuited to that purpose. Such may have been the application intended, and I think it not unreasonable to suppose that it was. If it was, then a construction which would apply them differently and so as to enlarge the power and extend it to subjects not intended, would be an act of violence. If this power can be construed to authorize the sale or conveyance of land, I see no reason why it should not be also held to authorize the purchase. The inference in favor of the one is as strong as that in favor of the other, and yet I hardly think counsel would contend that Mrs. Whiting could have purchased lands and charged her husband with the price.
Besides it appears, from the defendant’s evidence, that Mr. Whiting, then a. resident of the county of Dane, was, at the . time of executing the power, about to go to the state of Oali-[612]*612form'a., and that he then was or soon expected to be engaged in the mercantile business in the county of Dane, which business was to be left in charge of his wife. It was so left and transacted during his absence. This seems to me conclusive against the construction urged in behalf of the defendant. The subject matter of the power is no longer doubtful, and the supposition that it might have been land is effectually excluded.
Very different was the case of Marr vs. Given, 23 Maine, 55, to which we are referred. There every word of the power tended unequivocally to the conclusion that it was authority to sell and convey land which ’ was intended, and admitted no .contrary supposition; and the court, holding that such authority might be imparted by implication, sustained the conveyance. The attorney was authorized “to bargain, sell, grant, release and convey;” “and upon such sale or sales convenient and proper deeds, with such covenant or covenants, general or special, of warranty, quitclaim or otherwise, as to my said attorney shall seem expedient, in due form of law, as my deed or deeds, to make, seal, deliver ■end acknowledge.” The power of attorney was silent as to what he was to sell and convey. It appeared that, the principal resided in a foreign country, and that he had no other land in the country of the agent than that embraced in the conveyance ; and the court applied the power to that. I am not disposed to criticize the decision. I do not think it inconsistent with the general doctrine so often sanctioned, that a power to convey lands must possess the same requisites and observe the same solemnities as are necessary in a deed directly conveying the lands. Clark vs. Graham, 6 Wheat., 577; Lombard vs. Aldrich, 8 N. H., 31; Gage vs. Gage, 10 Foster, 420; Lord vs. Sherman, 2 Cal., 498.
A question is also made as to whether the deed to Sexton was so acknowledged as to entitle it to be recorded, but as I hold "that the power of attorney did not authorize its execution, a discussion of that question becomes unnecessary.
[613]*613Coming to tbe equitable branch of the answer or defense, the case presents itself to my mind in a very different light. As it now stands upon pleadings and proof, I think the defendant’s right in equity to the land clearly established, and that he is entitled to the relief demanded by the answer against the title of the plaintiff. This branch of the defense depends upon the contract for the sale of the land by Mr. Whiting to Mrs. Sifert, which contract was afterwards assigned by Mrs. Sifert to Sexton, who entered into a contract to convey to Rap. Rap took possession, and subsequently assigned his interest to the defendant, who also took possession and remained in to the time of trial. The' balance of the purchase money due unde? the Rap contract was afterwards paid by the defendant to Sexton, who executed and delivered to the defendant a conveyance, supposing undoubtedly that he himself had acquired the legal title through the power of attorney and the deed executed to him by Mrs. Whiting. The possession both of Rap and the defendant was prior to the execution and delivery of the deed to the plaintiff. The defendant was in possession at the time. The plaintiff must therefore be deemed to have had notice of the defendant’s right. The only questions upon this branch of the case arise out of the contract between Mr. Whiting and Mrs. Sifert, and the foregoing power of attorney, and are, whether that contract was ever performed on the part of Mrs. Sifert or Sexton, and, if not, whether Mrs. Whiting, as attorney for her husband, was authorized to waive any of • its stipulations.
It appears that Mrs. Sifert’s interest in the land ^as acquired by an exchange of lands between herself and husband and Mr. Whiting. They exchanged a dwelling and shop in the village of Medina for the land. At the time of the exchange, the dwelling and shop were incumbered by a mortgage executed by Mr. Sifert to Sexton, Wing & Co. of Milwaukee, df which firm Sexton was a member. This mortgage was to be paid by the Siferts; and, to secure performance on their part, [614]*614Wbiting retained tbe title of tbe land, giving to Mrs. Sifert a contract to convey it to her when tbe mortgage was discharged: Provision was also made for any other liens or incum-brances, and certain taxes. Tbe contract in this respect reads, that Mrs. Sifert was to pay Mr. Whiting “ the just and full sum of a certain mortgage upon the premises * * * given by C. M. Sifert to Sexton, Wing & Co., predicated on a note signed by Sifert & Dunbar, dated Dec. 5th, 1848, the original amount of which was' $833.67; said mortgage to be paid as by agreement made by and between said C. M. Sifert and Sexton, Wing & Co.; and also all other liens and incumbrances upon said property up to this date, the satisfactions and receipts* of which are to be delivered to said first party (Whiting), his heirs, executors, administrators or assigns ; and to pay all taxes that shall be assessed on the premises up to the first day of December, 1852.” The contract is dated Dec. 15th, 1852. Objection is taken by the plaintiff, that the mortgage was never discharged. There iá no controversy as to other liens, or the taxes. Mrs. Sifert assigned the contract for the land to Sex-' ton in payment of the mortgage, and Sexton delivered the note and mortgage to Mrs. Whiting, as the agent of her husband, who accepted them in satisfaction of the contract without requiring the mortgage to be formally discharged of record. Mrs. Whiting subsequently re-delivered the note and mortgage to Sexton, Brother & Co., successors to Sexton,' Wing & Co., to secure the payment of money due them for goods purchased by Mrs. Whiting in the course of the business which she was transacting for her husband. Sexton, Brother & Co. now hold the note and mortgage. It is insisted, for the plaintiff, that Mrs. Whiting had no authority to receive the note and mortgage in discharge of the contract with. Mrs. Sifert, without a formal satisfaction,'which, when recorded, would extinguish the mortgage of record — that the contract calls for satisfactions and receipts to be delivered to Mr. Whiting. I think it follows from what has already been said, that she had .such [615]*615authority. She was fully empowered to collect aud receive any and all sums of money and debts due to her husband, and give receipts for the same ; and I think this included the power on her part to fix conditions of payment, and to waive stipulations in favor of her husband, especially such as did not affect or diminish the sums to be received.
Another objection is, that the contract required not only the satisfaction of the mortgage, but also.the payment of the same amount to Mr. Whiting. It is obvious to me that such is not the proper construction. The intention of the parties evidently was, that Mrs. Sifert might discharge her obligation, either by redeeming from Sexton, Wing & Co. or by paying the amount to Mr. Whiting so that he could redeem.
It is also insisted that the answer in this respect is insufficient — that it does not set out all of the conditions of the contract. No objection.was taken to the admission of testimony on that ground, and if there had been, no doubt the court would have allowed an amendment on such terms as would have been just.
But one other question remains to be considered ; and that is, the rejection of the depositions of Mr. and Mrs. Whiting. They ought not to have been excluded because the clerk had neglected to give notice of the return of the commission as prescribed by rule 62. Carlyle vs. Plummer, 11 Wis., 106. The commission was fairly and properly executed ; and I think, upon proof of the facts offefed by the plaintiff's counsel, they should have been admitted. I see no evidence of unfair or improper conduct on the part of the plaintiff or his counsel after its return.
For these reasons I am of opinion that the judgment below should be reversed, and the cause remanded for further proceedings according to law.
Ordered accordingly.