Page:Dakota Territory Reports Vol 4.djvu/571

558

1. Evidence— TRIAL ON AMENDED ANSWER — ADMISSION OF FACT IN ORIGINAL ANSWER— COMPETENT EVIDENCE.

When a trial is had upon issues raised by a supplemental and amended answer, an admission of the execution of instruments offered in evidence, made in the original answer, is competent evidence to prove such fact. Gale v. Shillock, 182.

2. Same—made in separate defense in answer.

And such admission is competent evidence, though made in a separate defense in the answer, the answer containing general denials putting in issue all the allegations of the complaint. Id.

ADVERSE POSSESSION.

1. Possession—extent of—under color of title.

When one enters upon the possession of real estate under color of title by deed, his possession is deemed to extend to- the bounds described in the deed, although his actual improvements are on a small parcel only of the tract. Gale v. Shillock, 182.

2. Same— SUCH possession notice to purchasers.

The possession of any part of such tract is sufficient to put a purchaser on inquiry to ascertain the full extent of the rights of one so in possession. Id.

AGENCY.

1. Sale op land-interest adverse to principal.

Gray was defendant's agent to procure from plaintiffs a deed for certain lands. Plaintiffs executed the deed and placed it in the hands of Gray for delivery, it being agreed between them that Gray should have the right to demand from his principal as a condition precedent to such delivery, that the principal should procure a deed to the said Gray for certain other lands. The deed from plaintiffs having been delivered to defendant without the performance of such Condition precedent, held, that the title passed, as it wus incompetent for the agent to make any agreement securing a benefit for himself adverse to his employers' interests. Holt v. Colton. 67.

2. Agent—taking title in fraud of principal—constructive trust.

An agent employed to obtain title to real estate for his principal who makes use of the means and facilities furnished by the principal to obtain title for his own use and benefit, holds such title in trust, and a court of equity will compel a conveyance of the title to his principal. And in such case the agent cannot plead the statute of frauds in defense of an action to compel a conveyance. Fidel er v. Norton, 258.

3. Power to sell real estate— agent holding has no authority TO cancel contract of sale made under—power exhausted BY sale.

An agent, acting under a written power of attorney authorizing him to sell real estate, exhausts liis power to sell as to the subject matter, and cannot cancel the sale, and make a new contract of sale to another person having knowledge of the fii*st sale, so as to make the principal liable in damages for a breach of the second contract. Luke v. Griggs, 287.

4. Authority to make a contract confers no authority to cancel.

General words in a power of attorney cannot be construed to enlarge the power beyond the subject matter of the agency; snd an authority to make a contract for another is not sufficient to authorize its cancellation or surrender. Id.