Williams v. Paine/Opinion of the Court

The questions in this case grow out of the execution of the power of attorney by Lieut. Ransom and his wife while at Carlisle Barracks, Pa., in 1859.

It is claimed on the part of appellants (1) that the power of attorney given by Mrs. Ransom, a married woman (jointly with her husband), could not operate as a valid authority to the attorney named therein to convey her real estate, because a married woman could not convey real estate by a power of attorney; (2) that the power of attorney was revoked by the war; (3) that the paper executed by the attorney in fact pursuant to the power of attorney was not a conveyance, and did not pass the title of Mrs. Ransom to Mr. Tayloe; (4) that these difficulties were not cured by the act of congress entitled 'An act to quiet titles in favor of parties in actual possession of lands situated in the District of Columbia' (13 Stat. 531), as that act only applied to instruments conveying lands and to parties who were in actual possession at the time when the act was passed, and the paper executed by the attorney was not a conveyance, and when the act was passed the premises in question were vacant; (5) that the purchase price for her interest in that land was never received by Mrs. Ransom, and her heirs are not estopped from setting up the invalidity of the alleged contract of sale or conveyance upon any equitable grounds.

The first section of the above act is set out in the margin.

Very careful and well considered opinions have been delivered in the case, both in the supreme court and in the court of appeals of the district, in which these various questions are discussed. The supreme court held that the two papers (the power of attorney and the instrument executed in pursuance thereof) were so far valid as to be subject only to such objections and defects of form of execution and acknowledgment as could be cured by legislation, and these defects were cured by the act of congress; that this statute was constitutional; and that the power of attorney was not revoked by the war, but was in full force and valid when the deed by the attorney was executed. The court also thought the defense which had been set up, that the complainants were at the commencement of the suit and thereafter out of possession and their title denied by the defendants, who were in actual and full possession, was an answer to the bill for partition, even if there had been no other defense proved. The bill was therefore dismissed.

The court of appeals, while discussing somewhat the defense that complainants were out of possession, did not decide the case upon that ground, but held that the power of attorney (properly acknowledged by Mrs. Ransom, as above stated) duly conferred upon the attorney in fact the legal power to convey Mrs. Ransom's interest in the land; that the war did not revoke the power; that the paper executed and delivered by the attorney in fact was not a conveyance, but only a contract for the sale and conveyance of the land; that the act of congress did not apply to such a paper; and, lastly, that the contract of sale was within the scope of the power of attorney, and vested in the purchaser an equitable interest or estate, which, upon general equitable principles, a court of equity would not devest out of the vendee in the absence of fraud, and no fraud being alleged or shown, and the purchase money having been received by Mrs. Ransom, equity would not set aside the sale. We will now state the conclusions to which we have come regarding these questions:

And, first, as to the question whether the power of attorney executed by Lieut. Ransom and wife to George Gibson Huntt authorized and enabled the attorney to bargain and sell and convey, or contract to convey by deed of bargain and sale, the property therein mentioned. We think it did.

Under the laws of Maryland, which were in force in the District of Columbia in 1859, we think it was then competent for a married woman, outside of the District, to execute, with her husband, a power of attorney to convey her lands therein, which, when acknowledged by her according to the statute relating to the acknowledgment by married women of deeds conveying their real property in the District, thereby became a valid and sufficient instrument to authorize the conveyance by attorney. It is not claimed that the acknowledgment to the power of attorney in this case was insufficient in matter of form to comply with the statute in that respect.

The real contention is, assuming the acknowledgment to have been sufficient, that a married woman could not by any manner of acknowledgment appoint an attorney with authority to convey her lands. It is true that by the common law a married woman could not convey an estate of freehold owned by her unless by levying a fine or suffering a common recovery. T is was altered by the statute in England of 3 & 4 Wm. IV., c. 74, abolishing fines and recoveries, and providing other means for the conveyance of estates. In most, if not all, of the states of the Union, statutes have been passed providing for the manner in which a married woman can dispose of her real estate. These statutes were intended to and did set aside the technicalities of the common law, and they provided some simple and effectual method for the transfer of the interests of married women in real estate. The chief justice of the court of appeals of the District of Columbia, in delivering the opinion of that court in this case, has cited several Maryland statutes which the court holds were in force in this District in 1859, and those statutes are also held to provide for the case of the execution of a power of attorney by a married woman joined in by her husband and privily acknowledged by her, authorizing the attorney in fact to convey her real property in the District.

This separate acknowledgment is provided for in probably all the statutes of the various states relating to the subject of the conveyance by married women of any interest they may have in real estate. It has been said to be the most important and essential element in the method employed to transfer such estates.

The statutes referred to in the opinion are the statutes of Maryland of 1715, c. 47; 1752, c. 8; and 1766, c. 14; and in those statutes the ceremony of the private examination of the married woman and her voluntary acknowledgment of the deed were made substitutes for the private examination as to her voluntary consent in the levying of the fine or the suffering of a common recovery. After citing these various statutes of Maryland, and commenting upon their provisions relating to conveyances of married women, the chief justice, in his opinion in this case, says: 'These provisions of the acts of 1715 and 1766 were in force in this District in 1859, and are still in force, and they were in no respect repealed by or in conflict with the acts of congress of the 31st of May, 1832 (4 Stat. 520), and of the 20th of April, 1838 (5 Stat. 226), relating to the execution and acknowledgment of deeds for land in the District of Columbia. The acts of congress do not profess to repeal the acts of Maryland of 1715 and 1766, or to be exclusive in their operation; but they have in some particulars, not involved here, amplified and extended the provisions of the former statutes then in force. And construing these statutes altogether, and looking to the reason and policy upon which they are founded, it would seem to be clear that in the year 1859, and down to the year 1865, it was competent to a feme covert, by a joint power of attorney with her husband, duly executed and acknowledged according to the forms prescribed by the statute, to execute and acknowledge a valid deed of conveyance of her real estate situate in the District of Columbia. It is well settled that a power to convey land must possess the same requisites and observe the same solemnities in execution and acknowledgment as are necessary in a deed directly conveying the land, and that a title to land can only be acquired and lost according to the laws of the place where the land is situated. Clarke v. Graham, 6 Wheat. 577. In this case the property to be conveyed was specifically mentioned and described in the power of attorney; and the power of attorney was executed and acknowledged at Carlisle, in the state of Pensylvania, by husband and wife, under their hands and seals, and the acknowledgment and authentication of the instrument was in all respects in accordance with the provisions of the statutes in force in the District of Columbia, providing the manner and form in which the real estate of femes covert could be conveyed. Indeed, we do not understand that the statutory requirement in respect to the form of acknowledgment, and authentication thereof, is a matter of objection. The terms of the statutes, any 'grantor or bargainor of any lands or tenements,' bein out of the province, or 'any person or persons conveying,' etc., not residing in the province at the time, etc., may acknowledge said deed by letters of attorney, well and sufficiently proved, etc., are sufficient to embrace femes covert authorized to sell and convey their real estate. If not, then the husband could not sell and convey by power of attorney, free of the contingent right of dower of his wife; for, if the wife could not acknowledge by power of attorney a deed for the conveyance of her own real estate, she would be equally unable to acknowledge by power of attorney a deed for the relinquishment of dower in the lands of her husband. Such disability, we think, was never intended by the legislatures passing the statutes to which we have referred, to be fixed upon femes covert having lands with right to convey the same.'

We give great weight to the views expressed by the chief justice in regard to these statutes of Maryland, because, as is well known, he occupied for many years a seat upon the bench as chief justice of the court of appeals of that state, and is specially familiar with its laws and the construction given them by the courts of the state. In addition to such circumstance, and from a perusal of the various statutes cited, our own judgment concurs with the court of appeals upon this question. We think a clear implication arises from the provisions of these acts that a power of attorney such as has been described, and acknowledged as already mentioned, was good in 1859 in this District. We can think of no good reason for excluding such implication. Where the person is by the statute allowed to do the principal thing directly, we think she could do it by power of attorney as described in this case. The power to convey includes, in such case, the power to appoint another to do the same thing. We therefore agree with the views expressed by some of the text-writers, when power is given by statute to married women to convey their interest in real estate where their husbands join in the conveyance, and where the private examination is made, that in such cases the right of the wife to dispose of it by power of attorney joined in by her husband, and where she was privately examined, etc., would naturally be implied. The common law, which incapacitates a married woman from making a contract in general, is so far altered by the statute as to permit her to execute a power of attorney, and to therein contract to ratify his acts, instead of conveying directly, as the statute in terms provides. See 3 Washb. Real Prop. (4th Ed.) p. 258. The author there says: 'It is laid down unqualifiedly, in some of the states, that a married woman cannot make a valid power of attorney, even jointly with her husband, to make a deed of her interest. But it is difficult to perceive any reason for the rule where she can do the principal thing herself, and such a right is clearly recognized by statute in Massachusetts. A similar right is also recognized by statute in New York.' We do not think the aid of a statute is necessary When the power is given her by law to convey directly, she can by the same ceremonies authorize another to do the act for her. The reasoning which would prevent it is, as we think, entirely too technical, fragile, and refined for constant use. It is said in Story, Ag. § 6: 'So, in regard to married women, ordinarily they are incapable of appointing an agent or attorney; and, even in case of a joint suit at law, an appointment of an attorney by a married woman is void, and her husband may make an attorney for both. But where a married woman is capable of doing an act, or of transferring property or rights with the assent of her husband, there, perhaps, she may, with the assent of her husband, appoint an agent or attorney to do the same.' In this case we hold that, as the wife was capable of conveying her real estate in Washington, in 1859, by a deed, properly executed and acknowledged by her privily, etc., and joined in by her husband, she could accomplish the § me thing by authorizing another to convey for her, where the authority was joined in by her husband, and the required private examination, etc., made.

The court of appeals of Maryland has never, so far as we can discover, construed the statutes above cited in any manner opposed to the views expressed by the court of appeals of this District in this case. The cases of Webster's Lessees v. Hall, 2 Har. & McH. 19; Flannigan v. Young, Id. 38; Hollingsworth v. McDonald, 2 Har. & J. 230; and Lawrence v. Heister, 3 Har. & J. 371,-in which the above-named statutes are referred to, were all cases where deeds had been executed and where the acknowledgment of either the wife or the husband was held to be defective under the provisions of those statutes. In some of the cases it was said to be necessary, in order to pass the interest of the wife in her land, that she and her husband must join in the deed as grantors, which must be properly acknowledged, etc. This statement was not made as descriptive of the only method by which a married woman could convey her land, but was made in relation to the defective manner in which the deed of conveyance was executed in the particular case, which was the case of a deed defectively acknowledged under the statute. No decision has been cited by counsel for the appellants from the courts of Maryland which is inconsistent with or opposed to the construction given to these statutes by the court below.

In Holladay v. Daily, 19 Wall. 606, the plaintiff and his wife appointed an attorney with general power to convey land which belonged to the husband. The attorney in fact subsequently conveyed the lands, and the plaintiff Holladay, after such conveyance, alleging that he had never received any of the consideration money recited in the deed, sued to recover back the possession of the land. The only question was as to the sufficiency in law of the power of attorney from Holladay and wife to Hughes, the attorney in fact, and his deed thereunder, to pass the title of the husband. It was held that the power was sufficient, the court saying: 'Here the object, and the sole object, of the power was to enable the attorney to pass the title freed from any possible claim of the wife, and under the law of Colorado that result could be accomplished by the deed of the husband alone as fully without as with her signature.' What was said by the learned justice in delivering the opinion of the court in that case in regard to the manner in which the interest of married women in real estate could be conveyed was not necessary to the decision of the case, the point decided being that, considering its form, the power of attorney signed by the husband and wife was valid to convey his interest in the real property.

Finally, upon this branch of the case, we also concur with the lower court in holding that the first section of the act of congress, already mentioned, contains a clear legislative recognition of the right to make this power of attorney. In this case, we think this fact is entitled to exceptional consideration. The act was evidently drawn with care, and it fully and plainly describes the different defects of the various instruments upon which it was intended to operate. Although the section is quite long and the phraseology is somewhat involved, yet the meaning of the section is perfectly clear. Certain provisions therein fully recognize the then existing right of a married woman to appoint, jointly with her husband, an attorney in fact to convey lands owned by her in this District, and language is used for the purpose of curing certain named defects which might exist in the execution or acknowledgment of such a paper. Speaking of the acknowledgment, the statute in the first section proceeds in this way: 'And provided, also, that when the power of attorney shall have been executed by a femme covert, the same shall be effectual and sufficient if there shall have been such an acknowledgment of the same as would be sufficient, under the provisions of this act, to pass her estate and interest therein were she a party executing the deed of conveyance, the record and copy thereof of any deed recorded as aforesaid to be evidence thereof, in the same manner and to have the same effect as if such deed had been originally executed, acknowledged and recorded according to law.' It had already been provided in the section 'that the certificate of acknowledgment by a femme covert shall show that the acknowledgment was made 'apart' or 'privily' from her husband, or use some other term importing that her acknowledgment was made out of his presence, and also that she acknowledged or declared that she willing executed or that she willingly acknowledged the deed, or that the same was her voluntary act, or to that effect.'

The acknowledgment attached to the power of attorney in this case was sufficient, under the provisions of this act, to pass the estate and interest of Mrs. Ransom if she had been a party executing a deed conveying her real estate in the District.

Upon a consideration of all the circumstances, we have no doubt that the power of attorney in question was properly executed and acknowledged, and that it authorized the person named therein as attorney in fact to convey Mrs. Ransom's real estate situated in this District.

(2) The next question which arises is whether this power of attorney was revoked by the war which broke out between the two sections of the country in 1861.

Lieut. Ransom, although one of the last officers to go out, did resign his commission in the army of the United States, and went South, and entered the army of the Confederacy, in which, before the close of the war, he attained high rank. His wife followed him, so that during the war they were both inside the lines of the Confederacy.

We are of opinion that the war did not revoke the power of attorney executed by Mrs. Ransom and her husband. It is not every agency that is necessarily revoked by the breaking out of a war between two countries in which the principal and agent respectively live. Certain kinds of agencies are undoubtedly revoked by the breaking out of hostilities. Agents of an insurance company, it is said, would come within that rule. Insurance Co. v. Davis, 95 U.S. 425. In that case Mr. Justice Bradley, in delivering the opinion of the court, said:

'That war suspends all commercial intercourse between the citizens of two belligerent countries or states, except so far as may be allowed by the sovereign authority, has been so often asserted and explained in this court within the last fifteen years that any further discussion of that proposition would be out of place. As a consequence of this fundamental proposition, it must follow that no active business can be maintained, either personally or by correspondence, or through an agent, by the citizens of one belligerent with the citizens of the other. The only exception to the rule recognized in the books, if we lay out of view contracts for ransom and other matters of absolute necessity, is that of allowing the payment of debts to an agent of an alien enemy, where such agent resides in the same state with the debtor. But this indulgence is subject to restrictions. In the first place, it must not be done with the view of transmitting the funds to the principal during the continuance of the war, though, if so transmitted without the debtor's connivance, he will not be responsible for it.'

The learned judge then adds that, in order to the subsistence of the agency during the war, it must have the assent of the parties.

These remarks were made in relation to the case then before the court, which was an action on a policy of life insurance issued by a New York corporation before the war upon the life of Davis, a citizen and resident of the state of Virginia. The premiums were regularly paid until the beginning of the war, the last one having been made December 28, 1860. Previous to the war the company had an agent residing in Petersburg, Va., where the assured also resided, and premiums on the policy had been paid him in the usual way. About a year after the war broke out the agent entered the Confederate service, and remained there until the close of the war. An offer of payment of the premium due in December, 1861, was made to the agent, which he declined to receive, alleging that he had received no receipts from the company, and that the money, if he did receive it, would be confiscated by the Confederate government. He testified that he refused to receive any premiums, had no connection with the company during the war, and after it terminated did not resume his agency. Davis died in September, 1867. The plaintiff below was assignee of the policy, and claimed to recover the amount of $10,000 on the ground that he was guilty of no laches, and that at the close of the war the policy revived. The judge instructed the jury that if the assured was ready and offered to pay his premium to the agent in Virginia, after the breaking out of the war, there was no forfeiture of the policy, although the agent refused to receive the money, if within a reasonable time after the war he endeavored to pay his premium and the company refused to receive it. The defendant contended that the war put an end to the agency, and that the offer to pay the premium to the former agent was of no validity, and the failure to pay rendered the policy void. This court held that the case was nearly on all fours with that of Insurance Co. v. Statham, 93 U.S. 24, but the point as to the supposed power of an agent of a company in the adhering states to receive premiums in a state in insurrection after the war broke out not having been specially adverted to in the opinion of the court in that case, it was particularly considered in the Davis Case, as above quoted from. It was in relation to such an agency that the remarks were made. Agents of a life insurance company are undoubtedly engaged in the active business of their principal. Their duty is to receive the premiums for all policies obtained by them and to transmit such premiums to the home office. The prompt transmission of such premiums is a necessity for the successful prosecution of the business of the company. Upon their receipt the company is able to invest them in some interest-bearing security, and thus provide funds for the ultimate payment of the policy when it matures. It is easy to see that active and continuous business of such a nature could not be carried on during a war where the principal and the agent reside in the different countries engaged in such war.

In the case of Kershaw v. Kelsey, 100 Mass. 561, the general subject of contracts and business entered into and transacted between the citizens of the different states at war with each other is examined, and the question treated with great care by Mr. Justice Gray in delivering the opinion of the supreme judicial court of Massachusetts, and numerous authorities are referred to and commented upon in the opinion. In the course of that opinion it was said, at page 572: 'The result is that the law of nations, as judicially declared, prohibits all intercourse between citizens of the two belligerents which is inconsistent with the state of war between their countries; and that this includes any act of voluntary submission to the enemy or receiving his protection, as well any act or contract which tends to increase his resources, and every kind of trading or commercial dealing or intercourse, whether by transmission of money or goods, or orders for the delivery of either, between the two countries, directly or indirectly, or through the intervention of third persons or partnerships, or by contracts in any form looking to or involving such transmission, or by insurances upon trade with or by the enemy. Beyond the principle of these cases the prohibition has not been carried by judicial decision. The more sweeping statements in the text-books are taken from the dicta which we have already examined, and in none of them is any other example given than those just mentioned. At this age of the world, when all the tendencies of the law of nations are to exempt individuals and private contracts from injury or restraint in consequence of war between their governments, we are not disposed to declare such contracts unlawful as have not been heretofore adjudged to be inconsistent with a state of war.'

Under the circumstances of this case, we think the attorney in fact had the right to make the conveyance he did. It was not an agency of the class such as is mentioned in Insurance Co. v. Davis, supra, and was not necessarily revoked and avoided by the war. Where it is obviously and plainly against the interest of the principal that the agency should continue, or where its continuance would impose some new obligation or burden, the assent of the principal to the continuance of the agency after the war broke out will not be presumed, but must be proved, either by his subsequent ratification or in some other manner. And, on the other hand, where it is the manifest interest of the principal that the agency, constituted before the war, should continue, the assent of the principal will be presumed; or if the agent continues to act as such, and his so acting is subsequently ratified by the principal, then those acts are just as valid and binding upon the principal as if no war had intervened. Id.

It is entirely plain, as we think, that the mere fact of the breaking out of a war does not necessarily and as a matter of law revoke every agency. Whether it is revoked or not depends upon the circumstances surrounding the case and the nature and character of the agency. This case shows that in 1859, at the time when the power of attorney was executed, Lieut. Ransom and his wife were desirous of realizing their share of the value of the land in controversy. It was vacant, unimproved land in the city of Washington, and the charge for taxes was quite burdensome. The parties desired to realize the money. No sale of the property was effected from that time until the latter part of 1864 or early part of 1865. There is no evidence of any such change of circumstances as would naturally suggest a revocation of the authority to sell, but, on the contrary, the testimony is otherwise. It appears to have been to the interest of all parties to sell, and thus to free themselves from a constant source of expense. In addition to that, the evidence is clear and sufficient that after the sale the action of the attorney in fact of Mrs. Ransom was ratified and confirmed by her by the receipt of her share of the purchase money or its expenditure for her benefit and with her assent and approval. Her sister, Mrs. Gibson, testified that Mrs. Ransom's share of the purchase money was either paid over to her or expended for her at her direction. This full and complete ratification of the act of the agent shows conclusively the assent of the principal to the continuance of the agency notwithstanding the war. Some criticism is made upon this testimony of Mrs. Gibson because, after the passage of so many years, she is unable to state definitely which course was pursued, whether the money was paid to Mrs. Ransom, or whether it was expended for her at her direction. We think the criticism is not well founded. Mrs. Gibson might well have been able to state with absolute certainty that she either paid the money to Mrs. Ransom or expended it for her at her direction, and yet, after this lapse of time, she might also be unable to state with like certainty which of the two courses was pursued. It is perfectly possible for a witness to be certain of the ultimate fact, and yet to have forgotten the intermediate facts upon which that ultimate fact was based.

Here we have a power of attorney properly executed for the purpose of selling, among other lots, this real estate in question, and a state of circumstances which fairly shows that it was for the benefit and interest of the principal that such real estate should be sold at the time the sale in fact occurred; we have also the principal's receipt of her share of the purchase money in 1865, ith full knowledge of all the facts, and her acquiescence in and approval of the action of her attorney up to the time of her death in February, 1881. Upon these facts we think it clear that the instrument executed by the attorney in fact was as valid and effectual as if no war had intervened. The ratification of the act of the attorney was full and complete. It recognized and assented to the continued existence of the agency. The purchase money for the land was received by the principal, and to permit her heirs after her death to repudiate the transaction, on the ground that the power of attorney had been revoked, would be at war with every principle of equity and fair dealing. This principle applies as strongly in the case of a married woman as in any other, and it will not permit her, or, upon her death, her heirs at law, to repudiate a transaction the benefits of which she received with full knowledge of the circumstances attending it, and yet claim to recover an estate which had been sold with her authority, and the purchase money for which had been paid to her. Bein v. Heath, 6 How. 247; Banks v. Partee, 99 U.S. 325, 329. Bedford v. Burton, 106 U.S. 338, 1 Sup. Ct. 98, considers generally the obligation of married women to do equity under circumstances somewhat similar in principle to the present case.

Nor does the act of congress of July 17, 1862, to suppress insurrections, etc. (12 Stat. 589), have any effect upon the sales, transfers, or conveyance of the estate and property of persons in rebellion after September 23, 1862, except as to the United States. As against that government, the transfers of property liable to seizure were null and void. They were not void as between private parties or against any other party than the United States. Conrad v. Waples, 96 U.S. 279, 288.

(3) Even though the power of attorney were valid, and had not been revoked by the war, it is objected that the instrument executed by the attorney in fact conveyed no title, but, at best, was a mere contract of sale; and (4) That this objection is not cured by the act of congress, above set forth.

These two questions may be considered together, and it makes no difference in the result whether the instrument be construed as conveying a legal title or an equitable title only.

Some of the justices of this court concur in opinion with the court of appeals that, taking all the provisions of the instrument together, it did not amount to a deed of conveyance, but only to an agreement to convey made by an attorney who was authorized by his power to make a conveyance. In that aspect of the case, the instrument would convey an equitable title, which would afford a good defense to this bill, and it would be unnecessary to invoke the curative act of congress.

But a majority of this court is of opinion that the instrument was in the nature of a conveyance of the legal title, though defectively executed, and that it came within the provisions of the act, and the defect was thereby cured.

We agree generally that, although there are words of conveyance in praesenti in a contract for the purchase and sale of lands, still, if from the whole instrument it is manifest that further conveyances were contemplated by the parties, it will be considered an agreement to convey and not a conveyance. The whole question is one of intention, to be gathered from the instrument itself. Jackson v. Moncrief, 5 Wend. 26; Ogden v. Brown, 33 Pa. St. 247; Phillips v. Swank, 120 Pa. St. 76, 13 Atl. 712.

Looking at the instrument executed by the attorney, it will be seen that he refers to and annexes the power of attorney executed to him by Robert Ransom, Jr., and Mrs. Ransom, his wife, states the consideration received by him from Mr. Tayloe, acknowledges its receipt, and then acknowledges that he has 'bargained and sold to Mr. B. O. Tayloe, his heirs and assigns, all the right, title, and estate of them, the said Robert Ransom, Jr., and Mary Ransom, being one undivided third part of, in, and to' the various pieces of ground, inc uding the ground in question, and then adds, 'with the improvements and appurtenances.' Stopping here, and construing the language of the instrument, there can be no question that it was executed as a conveyance of the interest of the principals in the land, and was intended as such by the attorney in fact. Although the instrument shows an intention on the part of the attorney to convey the title of his principals, yet, instead of signing their names by himself as attorney, he signs his own name, preceding the signature with the statement, 'In testimony whereof I have hereunto set my hand and seal this 29th day of November, 1864.' This is one of the defective executions of an instrument under a power of attorney, spoken of in the act of congress. It is alleged, however, that the following language, which appears at the end of the instrument executed by Huntt, changes the character of that instrument, and shows that it was not intended as a conveyance, but as a simple contract of sale. The language referred to comes immediately after the words, 'with the improvements and appurtenances,' and is as follows: 'And I hereby further agree, in behalf of said Robert and Mary Ransom, that they shall and will, as soon as convenient, make and execute a proper deed of conveyance of said premises to said Benjamin O. Tayloe in fee simple.' We do not think this language changes the effect of the prior portion of the instrument, nor does it show that the intention of the person executing it was simply to enter into a contract of sale. He is the only one who signs it. The instrument shows that he is executing it as an attorney in fact and by virtue of the power of attorney annexed to the instrument. Although he assumes therein to bargain and sell (in legal effect to convey) to Mr. Tayloe, his heirs and assigns, all the right, title, and estate of his principals, being a one undivided third part of the real estate in question, yet he also agrees in the same instrument, in addition to the conveyance by himself of the title of his principals, to also obtain from them a deed of the same premises. This portion of the instrument is a contract in the nature of a covenant for further assurance. It may well be that the grantee, Mr. Tayloe, while taking the conveyance from the attorney in fact, and paying the full consideration for the land, would also desire to obtain a deed conveying the same title and executed by the parties in person. This desire may easily be understood, even upon the assumption that the instrument executed by virtue of the power of attorney was intended to convey the title. Such a deed would remove all possible question which could, in any event, arise based upon the fact that the conveyance was executed by an attorney instead of by a principal. The agreement to obtain a conveyance from his principals is entirely consistent with the prior portion of the instrument, in which the attorney assumes to convey the title by virtue of the power of attorney, which he annexes. If the attorney had, instead of agreeing in behalf of his principals that they should make and execute a proper deed of conveyance of the premises, agreed that he would himself at some future time make such a deed, a different question would be presented; for in that case, taking the whole instrument together, it might be argued that there was no intention at that time to convey the title. But where, in addition to conveying the title himself by apt words, clearly expressed, he simply agrees to also procure a proper deed from his principals at some future time, there is nothing inconsistent in that agreement with the intention to himself convey the title by virtue of the power. Nor do we regard the fact as material upon this latter point that in the acknowledgment of the instrument in question, taken by two aldermen who were ex officio justices of the peace, they describe the instrument as a certain contract of sale, and certify that 'Mr. Huntt executed said contract and acknowledged the same to be his act and deed.' What the ldermen may have regarded as the legal effect of the instrument is not of much importance, and whether they describe it as a contract of sale or as a conveyance cannot alter the character of the paper itself or its legal effect.

Being of opinion that the paper was in the nature of a conveyance, we also think that the defective execution of the instrument was cured by the act of congress. This instrument was executed by the attorney in fact, who acknowledged the same to be his act and deed instead of the act and deed of his principals, and the act of congress provides that in such case the deed shall have the same effect as if such attorney in fact had acknowledged the deed to be the deed of the grantors (his principals). One or two other defects existed of a like nature, that is, of a nature which might be cured by a legislative act, and which were cured by the act in question.

The statute applies where the parties intended to convey, thought they had conveyed, and yet had not complied with the requisites necessary to make the conveyance in all things effective. In such case, especially where the consideration for the instrument has been received and retained, curative statutes may be passed which give validity to the defective instruments to the same extent as was intended by the parties at the time when they were executed. Watson v. Mercer, 8 Pet. 88, 110; Randall v. Kreiger, 23 Wall. 137.

The chief objection to the act, assuming that the instrument was a conveyance, is that it does not apply in this case as plaintiffs urge, because at the time when the act was passed the parties claiming through this deed were not, as plaintiffs contend, in the actual possession of the land covered by it. The statute declares the instrument is to have effect and validity to pass the fee simple to the estate intended to be conveyed and to bar dower in the real estate therein mentioned 'in favor of parties in actual possession, claiming under and through such deeds.' It is said that this limitation to the parties in actual possession refers to the time when the act was passed, and, if the parties claiming under the deed were not at that time in actual possession of the premises, the statute has no application to them. We think the act applies if at the time when it was passed the parties claiming under the defective instrument were in actual possession of the land, and that the act also applies if the parties claiming under such instrument were not in actual possession at the time of its passage, but subsequently came into such possession. The act cured the defects in the instrument mentioned therein if when it passed the parties were in actual possession, claiming under such instruments, and if, thereafter ousted, they could still claim the benefit of the act, even in an attempt to regain possession. If not in actual possession when the act was passed, they could not have the benefit thereof in an attempt to obtain possession thereafter. But if thereafter they were in actual possession, they could defend that possession under the act, so far as their title depended upon defective instruments existing at the time when the act was passed and which were of a character covered by its terms.

We think this is a fair construction of the act, and that it ought to be liberally construed for the purpose of obtaining the benefits it was clearly intended to give in the case of a defective execution of otherwise valid instruments. This view renders it unnecessary to decide as to the validity of the objection that these defendants were not in actual possession when the act was passed. We do not decide whether they were or not. They were in actual and undisturbed possession at the commencement of this suit, and they can avail themselves of the act to protect such possession and their title under the deed in question.

(5) The fifth objection taken we have already answered, in holding that Mrs. Ransom did, in fact, receive the purchase price of her share in the land with full knowledge that it was such purchase price, and thereby ratified and confirmed the act of her attorney.

By this disposition of the whole case upon the merits we are not to be considered as deciding that parties situated as the plaintiffs were in this case, out of possession, can maintain an action for partition. We have not discussed that question, and do not decide it, because it was unnecessary, on account of the views we have stated in relation to the other aspects of the case.

We are of opinion that the complainants have failed to make out a cause of action, and the judgment dismissing the bill must therefore be affirmed.

Mr. Justice WHITE did not sit in this case, and took no part in its decision.