#### Meade vs. Brothers and another.

Principal and Agent — Deed. (1, 2) *Power of attorney to sell and convey land. Peed hy attorney to Ms own dmghterfor nominal consideration.*

Pleading. (3) *Complaint in ejectment.*

1. "Where the act of an agent varies substantially, in its nature, extent or degree, from the authority conferred upon him, it does not bind the principal.

2. One authorized by a power of attorney to sell and convey certain real estate entire or in separate parcels, for such sum or sums of money as to him should seem most to the advantage of the principal, conveyed real estate worth three or four thousand dollars to his own daughter for the nominal consideration (expressed in the deed) of one dollar. that he was authorized to convey for a valuable consideration only, and not for a mere nominal sum; and that the deed might be treated by the principal as a mere nullity. *Patón v. Smith,*19 Wis., 537, distinguished.

3. Plaintiff in ejectment may show that a deed, put in evidence by the defendant, was executed without authority, under a complaint in the usual form (R. S., ch. 141, sec. 4), without any specific allegation as-to such deed.

APPEAL from tbe Circuit Court for *Outagamie-*County.

Ejectment, against *Bavid Brothers*and *Amanda T. Brothers..*Complaint in tbe usual form. Tbe answer admits that defend*690ants are in possession of tbe premises,' and denies tbe other averments of tbe complaint. Tbe nature of tbe conveyance under wbicb defendants claimed to bave derived title from tbe plaintiff, will sufficiently appear from tbe opinion. Tbe plaintiff appealed from a judgment in favor of tbe defendants.

*Hastings &*Green, for appellant,

argued tbat plaintiff could not maintain a suit in equity to remove a cloud upon bis title created by sucb deed: first, because be was not in possession; and secondly, because tbe court would say to bim tbat if tbe deed was infected witb fraud, it was no conveyance, and tbat be could show this in an action at law *{Jones v. Collins,*16 Wis., 594; *Meade v. Blacle,*22 id., 241; *Kent v. Agard,*24 id., 378); and tbat tbe statute (E. S., cb. 141, sec. 4) provides wbat allegations a complaint in ejectment must contain, and tbe complaint in tbis case being in conformity witb tbe statute, evidence of tbe fraud in tbe deed to *Amanda T. Brothers*was admissible under it, without any averment of sucb fraud. *Reynolds v. Vilas,*8 Wis., 472; *Walter v. Lockwood,*23 Barb., 228; *Ensign v. Sherman,*14 How. Pr. E., 439, 442; *Lain v. Shepardson,*23 Wis., 224; *Mather v. Hutchinson,*25 id., 27; *Kent v. Agard,*24 id., 378; *Jackson v. Richards,*6 Cow., 617; *Stephens v. R. R. Co.,*20 Barb., 333 ; *Jackson v. Burgott,*10 Johns., 457 ; *Wal-dron v. McComb,*1 Hill, *111;*Adams on Ejectment (4th ed.), .567.1

*Hudd & Wigman,*for respondents,

argued tbat tbe deed from ifrawe to *Amanda T. Brothers*passed tbe *legal*title to her, and •therefore tbe plaintiff could not maintain ejectment *{Parhison ■v. Bracken, Burnett, 13; IS*Wis., *472; Eaton v. Smith,*19 id., •:537); tbat after plaintiff bad traced tbe title to hjmself, all defendants were required to do was to show tbat sucb legal title bad passed out of tbe plaintiff (23 Wis., 224); tbat .even if it be granted upon tbe New York authorities (17 N. Y., 270; 41 id., 107), tbat plaintiff may bave both equitable and legal relief in tbe same action, still sucb relief can be bad only upon .•appropriate allegations; tbat tbe complaint should state every *691fact wbicb tbe plaintiff must prove in order to maintain bis suit, and wbicb tbe defendant bas a right to controvert in bis answer (7 N. Y., 478; 10 id., 868; 8 Duer, 638; 9 Barb., 158; 20 id., 455); that under tbe code parties are required to apprise eacb other of tbe precise grounds upon wbicb they intend to rely (10 Wis., 371; 15 id., 641; 20 id., 509); and that fraud cannot be proven on tbe trial if not alleged in tbe pleadings. 5 Bosw., 16; 5 How. Pr. B., 14; 3 Sandf., 1.

Cole, J.

Eorj/the purpose of defeating a recovery in this case, tbe defendants introduced in evidence and relied upon tbe deed executed in tbe name of tbe plaintiff by bis attorney in fact, George W. Lawe, to tbe defendant *Amanda T. Brothers,*This deed was executed by Lawe to bis daughter Amanda, by virture of a power of attorney under seal, in and by wbicb tbe plaintiff constituted Lawe bis attorney, and authorized him, in bis name, “to bargain, sell, grant, release and convey entire or in separate and convenient parcels,” “for such sum or sums of money ” as to tbe attorney should seem most to tbe advantage of tbe principal, tbe real estate therein named. Under this letter of attorney, Lawe conveyed tbe real estate in controversy, worth $3,000 or $4,000, to bis daughter, for tbe nominal consideration of one dollar. Tbe plaintiff offered to prove, among other things, by bis own testimony, that this deed was made by Lawe for tbe purpose of depriving him of bis property, and with a fraudulent intent on tbe part of Lawe, and that it was accepted by tbe grantee — if accepted at all — with full knowledge on her part that it was a fraudulent transaction on tbe part of tbe attorney in executing tbe deed in tbe manner be did. This and other offers of testimony were excluded by tbe court. And finally tbe court was asked, in effect, to instruct tbe jury that tbe deed from *Meade*to *Amanda T. Brothers*of tbe property in dispute was unauthorized by tbe power of attorney from *Meade*to Lawe. and that tbe plaintiff was entitled to recover tbe real estate notwithstanding tbe deed. This instruction was refused. *692It will not be necessary to notice the other alleged erroneous rulings of the court, inasmuch as the questions arising upon these exceptions must dispose of this appeal. It will be seen at once that these exceptions, or the latter one, presents the distinct question, whether the conveyance executed by Lawe to his daughter *Amanda*was ever of any operative force to transfer the title, or whether it was simply void as to the plaintiff. We are of opinion that that conveyance did not pass the legal title, and that, in respect to the plaintiff, he might treat it as a mere nullity.

It is an elementary principle pervading the law of agency that, in order to bind a principal upon a contract made by an agent, the contract must be within the authority committed to the agent, and that such authority must be substantially pursued. That is, if authority be conferred upon an agent to lease real estate belonging to his principal, he has no power to sell and convey it, and if he should assume to do so, his acts would simply be void, because they were entirely beyond the power delegated to him by the principal. So also if authority be conferred upon an agent to sell and convey real estate for a valuable consideration, he has no power to give it away. This proposition seems to us too plain to require argument in its support; and we shall not dwell upon it.

In the present case, the written power in terms authorizes the agent to sell and convey the real estate' named, entire or in separate parcels, to such persons and for such sums of money as might to the attorney seem most to the advantage and profit of the constituent. Evidently this contemplated a sale of the property for a valuable consideration, and it never could have been intended to authorize the agent to sell and transfer the title for a mere nominal consideration. The letter of attorney, it is true, gave the agent seme discretion as to the amount of money which the entire property or any portion thereof should be sold for; but the agent was expressly required to exercise that discretion for the best interest of his principal. Manifestly *693it never was intended that he should give away the property; and the instrument under which he assumed to act conferred no authority upon him to make such a disposition of it. And in conveying it away for a mere nominal consideration, he acted entirely without the scope of the authority committed to him. It is a cardinal rule, that if the act of the agent varies substantially from the authority or commission, in its nature, or extent, or degree, it is void as to the principal, and does not bind him. Story on Agency, § 165. What act could an agent possibly do more substantially and grossly in violation of the authority delegated to him than to give away his principal’s property, which it was intended he should only convey upon being paid a valuable moneyed consideration ? And the grantee in the deed must have known, from the very terms of the letter of attorney, that Lawe was acting beyond the scope of his authority, and committing a gross fraud upon his principal. The deed, therefore, not being executed in pursuance of the power conferred upon the agent, conveyed no title, and in fact was void as to the plaintiff. Its existence presented no obstacle to the plaintiff’s recovery. *Dupont v.*Wertheman, 10 California, 354; *Mott v.*Smith, 16 id., 534; *Delafield v. The Slate of Illinois,*26 Wend., 192; *Cowan v. Adams,*10 Maine, 374; *St. John v. Redmond,*9 Porter (Ala.), 428; and *Reese v. Medlach,*27 Texas, 120.

From the remarks already made, it is very obvious that the case of *Eaton v. Smith,*19 Wis., 537, has no application to the one before us. There the deed from Martin and wife conveyed the legal title to Hays, and the only effect of the notice to Hays of White’s claim was, to make the deed to him voidable. But here no power was conferred upon the attorney in fact to convey the real estate, except upon a valuable consideration paid therefor by the purchaser; and his attempt to do so was a nugatory act. As between the plaintiff and the grantee in that conveyance, the deed was a nullity, and passed no title. For, as we have said, Lawe had no authority whatever to convey *694the land to any one for a mere nominal consideration, and Ms attempt to do so was an unauthorized act, which did not in any manner hind the plaintiff. The plaintiff could treat the deed as a mere nullity, having no operative force as far as he was concerned. This being so, the circuit court should have instructed the jury as requested by the plaintiff.

It is not necessary to consider the question whether the court erred in excluding the evidence of fraud offered on the part of the plaintiff.

*By the Court.*— The judgment of the circuit court is reversed, and a new trial is awarded.