Seeberg v. Norville

Principal and Agent -Pbice. In absence of fraud on part of purchaser, plaintiff cannot have deed executed by his attorney in fact, under power to sell “for such sum as he may obtain,” canceled, merely because sale was at bargain price, considerably less than market price; such price not being notice to purchaser of violation of duty or fraud by agent.

Appeal from Circuit Court, in Equity, Mobile County; Claude A. Grayson, Judge. Suit by Rolf Seeberg against Peyton Nor-ville and another. From a decree sustaining a demurrer to the bill, complainant appeals. Bill by appellant against appellees to cancel and set aside a deed executed by appellant through his attorney in fact to respondent Peyton Norville, and to cancel the mortgage executed by Peyton Norville to respondent Ellen T. Kelly upon the property conveyed to said Norville by complainant’s attorney in fact. . The bill as amended shows in substance that in June, 1912, the complainant was seized and possessed of certain real estate situated in Mobile county, which is therein described; that on said date said complainant, intending to depart from Mobile, executed to John B. Mitchell, of that city, a power of attorney, which is made Exhibit A to tne bill, duly executed and acknowledged .by complainant and his wife, and which contained the following provision, among others: “Do hereby constitute and appoint John B. Mitchell, Esq., of Mobile, Alabama, our irrevocable attorney in fact, with full power and authority, in our names and behalf, to bargain, sell, transfer, and convey to any person or corporation whatever, and for such sum as he may obtain therefor, the following described lands situated in the city and county of Mobile: [Here follows a definite description of the land.] * * * And the title purporting to he conveyed by our said attorney in fact, the said Rolf Seeberg does hereby fully warrant and will defend against all lawful claims: Provided, however, that no conveyance shall he executed by our said attorney in fact without a written request to him from said, N. A. Andresen & Go. of Christiana, Norway, to such effect.” It is further provided that the expenses of sale, including attorney’s fee, payment of taxes, etc., shall he first paid out of the proceeds of sale, and the balance thereof shall be paid to said N. A. Andresen & Co., to whom complainant was indebted in a sum in excess of the value of the property. The bill further charges that, notwithstanding the provisions of the power of attorney authorizing the agent to sell the property “for such sum as he may obtain therefor,” it was yet the duty of said agent to use ordinary care and diligence, and not to sacrifice the property by selling it for a price greatly disproportionate to its fair and reasonable market value at the time, and that respondents were each affected with notice of said power of attorney and its contents at the time of the purchase in question; that the property was assessed for valuation from 1912 to 1918 for $750, but subsequently it was assessed at a valuation of $2,400, and that the value of the property was much in excess of said latter sum; that respondent Norville was familiar with real estate values in Mobile county, and was aware that the property was then reasonably worth on the Mobile market in excess of $2,400, for which it was assessed, and that said Norville had read the contents of the power of attorney before the date of sale; that on February 19, 1918, said Norville agreed with said Mitchell to purchase the property for a cash consideration of $600, and to take a deed executed in compliance with said power of attorney; that such sale was consummated, and the deed executed in compliance therewith, a copy of which is made an exhibit to the bill. The deed shows its execution in strict compliance with the power of attorney, and a warranty of title as to the property conveyed, with certain exceptions, not necessary here to mention, and recites the execution of the written consent of N. A. Andresen & Co., and that said power of attorney and written request have been duly recorded. The bill alleges that complainant had repudiated said deed, and notified said Mitchell and respondents to that effect. On February 20, 1918, it is charged that respondent Norville executed to respondent Mrs. Kelly a mortgage upon the property to secure a loan of $500, and that she knew said loan was for the purpose of paying this purchase price, and that she knew, as did respondent Norville, that $600 was a sacrifice price for the property. The bill offered to do equity, and to return the money expended in the purchase of the land. The said Mitchell, the attorney in fact, was not made a party to the bill. To the bill, as amended, demurrer was interposed, and by the trial court, sustained. From the decree sustaining the demurrer, the complainant prosecutes this appeal.