CHAPTER XXXIII.

POWER OF ATTORNEY.

A POWER of attorney, or as it is sometimes called, a letter of attorney, is an instrument in writing, by one person who is called the principal, authorizing another who is called his attor ney-in-fact, to perform some act for or instead, and in the name of the principal.

When it authorizes any act affecting real estate or any act which if done by the principal would require seal, the power should be under seal.

The authority may be general, to transact all the business of the principal, or special, to do some particular act.

If the attorney exceeds his authority the principal is not bound by his act; but the authority delegated to him is supposed to include all the necessary means of carrying it into effect.

When the attorney performs an act for his principal it must be done in the name of the principal, and all instruments must be so expressed, and must be signed in the name of the principal by the attorney.

A power of attorney to convey real estate, or to execute any conveyance affecting real estate, must be acknowledged or proved, certified and recorded, the same as a deed. See chapter on DEEDS and ACKNOWLEDGMENTS. To revoke such a power of attorney, the deed of revocation must be deposited for record in the same office in which the power of attorney is recorded.1

A power may be revoked at the sole pleasure of the principal, except where the attorney or some third party has an interest in the subject matter.

Under the statutes of California regulating the execution of instruments by married women, it is questionable whether they

1 Wood's Dig. art. 864, 365, 2998.

can authorize an attorney to convey their separate estate. See DEED, ACKNOWLEDGMENTS, and HUSBAND AND WIFE.

The power of attorney may contain authority to the attorney to appoint a substitute; and such substitute if appointed must act in the name of the principal.

JUDICIAL DECISIONS.

General words in powers of attorney are limited and controlled by particular terms and designations.'

A deed not executed in pursuance of a power, does not pass any title to the grantee, and as between the attorney and the grantee is a nullity. A power to "sell and convey" property is special, and must be strictly pursued; no presumption of a ratification of an alleged sale under a power can be indulged, unless knowledge of the alleged sale, with its attendant circumstances, is brought home to the grantee of the power.'

A general ratification of all the acts of an attorney does not include acts not within the scope of his power. The principal who ratifies, must know the character of the acts to be ratified: otherwise the ratification is void.

The principal is not bound to notice recorded conveyances executed in his name by his attorney, not authorized by the power.'

Where authority to perform specific acts is given by a power of attorney, and general words are also employed, such words are limited to the particular acts authorized. A power to sell real estate must be so expressly stated.*

OREGON AND WASHINGTON.

In Oregon the statute provides for recording powers of attorney and revocations, in the same terms as the California statute.

There seems to be no statutory provisions in Washington Territory upon the subject of powers of attorney.

FORMS.

Power of Attorney-short Form.

I, A. B., hereby appoint and constitute C. D. my attorney in fact, in my name, place and stead, to [here state what the attorney is authorized to do with full power to said C. D., as my attorney to do every thing I could in the premises, if personally present. Witness my hand and seal this 1st day of May, 1859. A. B. [L. S.]

Another Form.

I hereby authorize A. B. as my attorney in fact, to sell and transfer for me and in my name, my interest in the grist-mill in Santa Clara county, located on the Guadalupe River, with the lease of the land, to whom, and on such terms as he deems best; and by such instrument or means, as may be agreed on between him and any other parties. GEORGE BURR. August 5th, 1858.

Power to Collect.

Know all men by these presents: That I, A. B., of the county of Fresno, state of California, have made, constituted, and appointed, and by these presents do make, constitute, and appoint C. D. of Sacramento, true and lawful attorney, for me and in my name, place and stead, to demand, ask for, receive, and recover, all and singular, such sum or sums of money, goods, wares, merchandise debts, dues, choses in action, and effects whatsoever as are now due, payable, belonging, or coming unto me from any person or persons, or body or bodies corporate whatsoever, giving and granting authority to sue therefor, in part or in whole, and pursue unto final judgment and execution any process or suit, as he may deem expedient for the recovery of the same, with power to sign one or more sufficient undertakings, if by law required.

And my person to represent in any court or courts of law, and there to plead for or retain counsel for that purpose, to submit to arbitration or to compound the same, and to execute good and sufficient receipts and acquittances therefor, and the same to continue in force unless otherwise revoked.

Giving and granting unto my said attorney full power and authority to do and perform all and every act and thing whatsoever, requisite and necessary to be done in and about the premises, as fully to all intents and purposes as I might or could do if personally present, with full power of substitution and revocation, hereby ratifying and confirming all that my said attorney, or his substitute, shall lawfully do or cause to be done by virtue hereof.

the

day of

In witness whereof, I have hereunto set my hand and seal, , one thousand eight hundred and sixty. Signed, sealed, and delivered in presence of

A. B. [L. S.]

Power of Attorney to Sell and Manage Real Estate.

Know all men by these presents: That I, Frank W. Gross, of the city and county of San Francisco, state of California, have made, constituted, and appointed, and by these presents do make, constitute, and appoint James P. Garvey, of the same place, my true and lawful attorney, for me and in my name, place, and stead, to enter into and take possession of all real estate that I now own or may hereafter acquire in the state of California, and to lease the same, from time to time, upon such terms and conditions, and for such rent as he may deem expedient; and to collect and receive the rents thereof; and also to sell and convey my said real estate, or any part thereof, for such price and upon such terms and credits as he may deem expedient, and also to borrow money for my use upon such terms and interest as he may deem advisable, and as security for the repayment of the same, to mortgage and pledge my said real estate, or any part thereof. And for the purposes aforesaid, I hereby authorize and empower my said attorney to make, execute, and deliver all requisite feases, deeds, promissory notes, bonds, agreements, mortgages, or other instruments under seal or otherwise, giving and granting unto my said attorney full power and authority to do and perform all and every act and thing whatsoever, requisite and necessary to be done in and about the premises, as fully, to all intents and purposes, as I might or could do if personally present, with full power of substitution and revocation, hereby ratifying and confirming all that my said attorney, or his substitute, shall lawfully do or cause to be done by virtue hereof.

In witness whereof, I have hereunto set my hand and seal, the tenth day of June, in the year of our Lord one thousand eight hundred and fifty-nine. FRANK W. GROSS. [L. S.]

Full Commercial Power, with Authority to Sell, &c., Real

Estate.

Know all men by these presents, that I, A. B., of have made, constituted and appointed, and by these presents do make, constitute and appoint C. D., of

, my true and lawful attorney, for me, and in my name, and on my behalf, to ask, demand, recover and receive, all and any sum or sums of money, debts, dues, merchandise or effects, due, payable, coming or belonging, or which may at any time be due, payable or

belonging to me, from any person or persons whatsoever; to sell all or any part of such goods, merchandise and effects which may come to his possession or knowledge, on such credit and for such prices as he may deem meet; to purchase any goods, merchandise, specie or other commodities on my account, for such prices and to such amount as he may deem meet, and the same to sell again for my benefit and on my account, for any prices whatsoever, to ship or transport the same, or any part thereof, on my behalf and account, to any post or posts, place or places whatsoever, in any vessel or vessels, and with and to any person or persons whatsoever, and there barter, exchange and dispose of the same; to insure and cause insurance to be made, of any such goods, merchandise, specie or other commodities, or of any part thereof, at such premiums and for such risks as he may deem meet; to except any bill or bills of exchange or orders, make and execute any note or notes of hand, bond or bonds, or other instruments or contracts, in my name and on my account, to and for any amount which he may deem meet or expedient; to sell, barter, exchange or dispose of any real estate of which am now seized or possessed in fee simple, or for any less estate, to any person or persons, for any price or in any manner whatsoever, and for these purposes to execute and acknowledge any deed or deeds, lease or leases, or other assurance or assurances, with general covenants of warranty against all persons, or any other covenants whatsoever, as he may deem expedient; to purchase any real estate on my account, in fee simple or otherwise, at any price or any exchange whatsoever, and for these purposes to receive, confirm, make and execute any contracts, deeds, conveyances or other instruments whatsoever; to settle and adjust all partnership accounts and demands, and all other accounts or demands now subsisting, or which may hereafter subsist between me and any person or persons whatsoever, and submit the same to and decide them by arbitration; to compound for any debts, dues or demands owing, or which may hereafter be owing to me, and to take less than the whole, or otherwise to agree for the same, in such manner and on such terms as he, in his discretion, may deem proper; and for all or any of these purposes, to make and execute any releases, compromises, compositions, agreements or contracts, by deed or otherwise, in his opinion necessary and expedient in the premises; to pay and discharge all debts and demands due and payable, or which may hereafter become due and payable by me unto any person or persons whatsoever; to enter into lands any or other real estate to which I am or may be entitled, and recover the possession thereof, and damages for any injury done thereto, and to distrain for rent due thereon, and also to commence and prosecute unto final judgment and execution, any suit or suits, action or actions, real, personal or mixed,