Lord v. Sherman

2 Cal. 498

• Court: California Supreme Court
• Decided: October 15, 1852
• Status: Published

Opinion

Chief Justice Murbay

delivered the opinion of the Court. It is not necessary for the Court to examine all the points raised by the appellant’s counsel, ingenious though they may be; as this case turns upon the power of attorney from Stork to Sherman, and the subsequent assignment by the firm of Shermans & Stork. The power of attorney contains no authority to convey real estate, eo nomine. The power given “ to attend to all business affairs appertaining to real or personal estate,” is too indefinite to sustain a transfer of real estate, more particularly that acquired long subsequent to its execution.

The 4th section of the act concerning conveyances, passed April 16th, 1850, requires acknowledgments, when taken out of the State, to be taken before some Judge, or clerk of any Court of the United States, or of any State or Territory having a seal, or by a commissioner of this State. The acknowledgment is insufficient, having been taken before a notary of New York, and not in accordance with the statute.

The assignment was inadmissible to prove that the interest of Stork and the two Shermans had been conveyed by them previous to the docketing of the judgment, to Taylor, and that the equitable ownership of the land in dispute was in the firm of Stork & Co. It is not necessary to determine how far this equitable. defence could properly be set up, without having first been pleaded by the defendant, as the assignment does not, in terms, convey any real estate, and cannot fairly be construed as doing so.

As to the remaining question of damages, the value of the premises having been agreed upon, the Court properly refused to allow the testimony offered to prove, that the defendant had been unable to rent any portion of them.

Judgment affirmed, with costs.

A petition for a rehearing was filed; but was overruled at the October term.