# Holladay v. Daily

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United States Supreme Court
86 U.S. 606
Holladay v. Daily
ERROR to the Supreme Court of the Territory of Colorado; the case being thus:
The statute of the Territory just named regulating the subject of dower, enacts that 'a widow shall be endowed of the third part of all the lands whereof her husband shall die seized of an estate of inheritance.'
This statute being in force, and Ben Holladay being, as it seemed, owner in fee of a piece of land there, he and his wife executed a power of attorney to one Hughes to sell it. The power ran thus:
'Know all men, &c., that we, Ben Holladay and N. A. Holladay, his wife, have constituted and appointed B. M. Hughes our true and lawful attorney in fact, for us and in our names to sell and convey all or any lots of ground in said Territory, the title to which is now vested in said Ben Holladay; and the said Ben Holladay and N. A. Holladay, his wife, do hereby authorize said, Hughes to proceed to sell said property on such terms as he may consider best for their interest. And it is provided that in case of the death of either of the said parties making this power of attorney, no further power shall be necessary to our said attorney in fact and agent, to enable him to complete conveyances for property then sold, or to proceed to sell the same or any part thereof thereafter; but he shall proceed, notwithstanding, to sell and convey said property until the same is all disposed of by him. Hereby ratifying and confirming all that the said Hughes may do and perform in the premises under this power of attorney to him given, we have hereunto set our hands and seals this 13th February, A.D. 1866.
'BEN HOLLADAY, [SEAL.]
'N. A. HOLLADAY, [SEAL.]'In September of the year in which the power was executed Hughes made a conveyance of some of the land meant to be conveyed. The deed began thus:
'This indenture, made this 27th day of September, A.D. 1866, between Ben Holladay, of the city and State of New York, by B. M. Hughes, his duly authorized attorney in fact, party of the first part, and Richard Whitsitt, of the city of Denver, Territory of Colorado, party of the second part, witnesseth, &c.:
'That the said party of the first part, for and in consideration of the sum of $30,000, &c., has granted, bargained, sold, and conveyed,' &c.
[Here followed a description of the premises. The deed ended thus:]
'And the said party of the first part, the aforesaid pieces, parcels, or lots of land unto the said party of the second part, his heirs and assigns, against the claim or claims of all and every person whatsoever, doth and will warrant and forever defend by these presents.
'In witness whereof the said party of the first part has hereunto set his hand and seal the day and year first above written.
'BEN HOLLADAY, [SEAL.]
'By his attorney in fact:
'B. M. HUGHES, [SEAL.]'
The possession of the land passed from Whitsitt on one Daily; and in December, 1870, Ben Holladay, alleging that he had never received any of the consideration-money recited in the deed, sued Daily to recover possession of the land.
The only question was the sufficiency in law of the power of attorney from Ben Holladay and wife to Hughes, and the deed thereunder made from Holladay by Hughes, his attorney in fact, to Whitsitt, to pass the title of the said Holladay in the land to the said Whitsitt.
The court below gave judgment for the defendant, and the plaintiff the case here on error.
Mr. G. H. Williams, for the plaintiff in error:
Hughes was invested with a special power to sell and convey certain lands in the joint names of Ben Holladay and N. A. Holladay, his wife. All the expressions in the power of attorney are full and clear to this effect. Provision is even made for the death of one of the donors of the power, in which event alone the power is to be exercised in the name of the survivor, clearly implying that before that event it is to be exercised in their joint names. Hughes violated the spirit and letter of his warrant of attorney. The power which he exercised to sell the land of another was never created.
It is impossible to say that the deed was made in substantial compliance with the warrant of attorney.
The deed is not so much a departure from the mode prescribed or exercising a power, as the exercise of a power different from the one conferred. The power was to make a deed in the name of two persons. The power exercised was the making of a deed in the name of one person. This was not a legal and valid compliance with the authority granted. An attorney acting under a written authority cannot substitute what in his judgment is substance for the forms required in the execution of the power.
Nor can it be said that the legal title was in Holladay, and, therefore, that it was only necessary to execute a deed in his name. If Holladay owned the property, he had a perfect right to say upon what terms and with what forms it should be sold and conveyed. If he had provided in the power that the deed made under it should have three witnesses, the deed would not be valid with two. He gave Hughes no authority to execute the deed in question. No inquiry can legally be made into Holladay's motives or reasons for requiring a joint deed in order to convey the property. Does the power of attorney require it? If so, and it was not done, that is the end of controversy.
Mr. P. Phillips, with whom was Mr. J. W. Denvers, contra, citing Dolton v. Cain and Dodge v. Hopkins.
Mr. Justice FIELD delivered the opinion of the court.

## Notes

* ↑ Snow v. Perry, & Pickering, 542; Chase v. Dana, 44 Illinois, 262.
* ↑ Batty v. Carswell, 2 Johnson, 49; Gibson v. Colt, 7 Id. 393; Rossiter v. Rossiter, 8 Wendell, 494, 499.
* ↑ 14 Wallace, 478.
* ↑ 14 Wisconsin, 635.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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