Green v. Swift

49 Cal. 260

• Court: California Supreme Court
• Decided: July 1, 1874
• Docket: No. 4,003
• Status: Published

Opinion

By the Court, Rhodes, J.:

Both parties claim title through Dolores L. Green, wife of A. A. Green. The deed under which the defendant deraigns his title, was executed in 1864, by Dolores L. Green, and also purports to have been executed by A. A. Green, by Edward Slosson, his attorney in fact. A power of attorney, made by A. A. Green to Slosson, was introduced in evidence, against the plaintiff’s objections. The law in force at the time of the- execution of the deed required the deed, by whom the separate real estate of a married woman is conveyed, to be signed by both husband and wife. It admits of serious doubt whether the husband can, by a power of attorney, executed by himself alone, delegate to an attorney in fact, the power to sign his name to a deed of conveyance of his wife’s property; but without deciding that question, we are clearly of the opinion that if it be competent to the husband to delegate his authority to sign the deed of his wife, the power of attorney must expressly, or by necessary implication, confer the power. Authority, either specific or general, to control, manage and dispose -of the husband’s property, or transact his business, will not authorize the attorney to manifest in the mode prescribed by the statute, the husband’s assent to the wife’s deed. The power of attorney in this ease, gives the attorney in fact of the husband certain power and authority in respect to the property, business, etc., of A. A. Green; but it contains nothing, which by a reasonable construction, can be held to relate to the property of his wife, or his power or rights in respect to it. The admission in evidence of the- power of attorney was therefore erroneous.

Judgment and order reversed, and cause remanded for a new trial. Remittitur forthwith.

Mr. Justice Niles did not express an opinion.