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it, cannot set up his own title to defeat a pledge of the property made by the other to a pledgee who received the property in good faith in the ordinary course of business, and for value. The evidence seems to leave no room for doubt that the Bank of Stockton received the warehouse receipt from Barney in good faith, and in the ordinary course of business; and upon the authority of Payne vs. Bensley, 8 Cal., 260; Robinson vs. Smith, 14 Cal., 94; Naglee vs. Lyman, 14 Cal., 450; and Frey vs. Clifford, 34 Cal., 355, it must be held that the pre-existing debt of Barney to the bank constituted a valuable consideration within the meaning of that section. If the evidence brings the case within that section, neither the Bank of Stockton nor Russell would be liable to the plaintiff in this action.

Judgment and order reversed and cause remanded for a new triul.

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DEEDS, CONSTRUCTION OF. - - Where two or more different descriptions occur in a

deed, it must be construed most strongly against the grantor.
EstOPPEL.-Where a party represents that he has power, and does execute a power

of attorney to convey lands for another party, he and all parties claiming under
him is estopped, when the title has come to his own hands, to deny that he had
been duly authorized to execute the power of attorney.

Appeal from Tenth District Court.
Belcher and Good for Respondent.
Hart and Kirk for Appellant.

Action for the recovery of the possession of Block 90, in the town of Colusa. Both parties claim title under a patent issued to Larkin and Missroon, as the confirmees of the Jimeno grant. The Court below found that the title to the undi

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vided five-sixths of the premises in controversy was held by the plaintiff, and one-sixth by the defendant. The defendant appeals from the judgment and the order denying a new trial.

The first conveyance by either of the confirmees was made on the 23d day of September, 1851, and purports to have been made by Larkin for himself, and by Missroon, by Larkin as his attorney-in-fact, to Seawell and Hastings; and the deed purports to convey an “undivided two-thirds part of the following described tract or parcel of land, to-wit: Two Spanish leagues (or dos sitios de ganada major) of land on the west bank of the Sacramento River, part of the land formerly known as the Colusa Tract, including the town of Colusa, being a part of the eleven Spanish leagues granted by Don Manuel Micheltorena," to Jimeno, and sold by him to said Larkin and Missroon. The two leagues are further described by a reference to the grant to Bidwell, a sale by him to Semple, and a Sheriff's sale under execution against Semple.

It is unnecessary, for the purposes of this appeal, to determine whether the description is sufficient to amount to a conveyance of the whole of “two Spanish leagues of land;” but the inquiry may be limited to the question whether an undivided interest in the premises in controversy was conveyed. The two leagues mentioned in the deed are described as “including the town of Colusa."

The evidence shows that the town is within the bounds of the Jimeno grant; that at the time of the execution of the deed a map of the town had been made; that the northern and southern limits of the town had been fixed and established on the ground; that stakes had been set at the corners of several of the blocks; that a number of houses had been built; and that as applications were made for the purchase of lots, surveys were made in accordance with the map. From the fact that the Court found that the defendant had title to an undivided sixth of the block of land in controversy, and that he deraigns title under that deed, it is to be inferred that the Court found the town of Colusa had been laid out before the execution of the deed, and that the block in controversy is a portion of the land which was then recognized as within the limits of that town. If the decision in that regard be correct, it must be held that the deed conveyed an interest in the lands within the town, however uncertain other descriptive portions of the deed may be.

The deed above mentioned was executed by Larkin, and purports to have been executed by Missroon, by Larkin, his attorney-in-fact, but it does not appear that Missroon had constituted Larkin his attorney-in-fact. The deed, therefore, is to be regarded only as the deed of Larkin. At the time of its execution he held the title to the undivided half of the land conveyed, and it must be construed as conveying his undivided half, although it purports to have been executed by Missroon, who was an owner of the title in common with Larkin.

The record does not contain any conveyance from Seawell and Hastings—the grantees in that deed—to the plaintiff or his grantors, and the decision that the plaintiff was the owner of the undivided five-sixths of the land was not sustained by the evidence, for he could not have acquired the title to more than three-sixths unless he acquired it under the deed to Seawell and Hastings. The defendant claims that the evidence shows that no interest in the town of Colusa passed to the plaintiff under the deeds through which he deraigns title. By one of these deeds William J. Eames conveyed to S. A. and James Morrison an undivided quarter of " nine Spanish leagues of land *

* commencing two Spanish leagues below or southerly from the tract of land on said river, known as the rancho of Larkin's children, and running thence along said river southerly nine Spanish leagues, and one league back or westwardly from said river,” being part of the Jimeno grant, "which said tract was conveyed to said William J. Eames by Henry Coggill and wife” by deed dated May 31, 1852; "and being the same tract of land conveyed to the said Samuel A. Morrison and James Morrison by the said William J. Eames (as the attorney-in-fact of the said John S. Missroon) by deed bearing date the 20th day of April, A. D., 1852.” The deed last referred to describes the land thereby conveyed as “ lying

* *

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and being southerly and below the town of Colusa.” The proposition is, in effect, that this description controls and limits all the other descriptive words in the deed of Eames to Morrison and Morrison. The first two descriptions appear both from the words themselves and from the extrinsic evidence relating to the boundaries of the land to be as certain as the third description; and therefore, in accordance with the rule requiring the deed to be construed most strongly against the grantor, it must be held that the first two descriptions prevail over the third; and as the evidence shows that the town of Colusa is included within the first two descriptions, it must be held that the deed conveyed an undivided fourth of the town of Colusa, if Eames held that interest.

It is further contended by the defendants that the land in controversy is excepted from the deed of Missroon to Coggill; and if not in fact excepted, that Eames, and the plaintiff claiming under him, are estopped to assert title to the premises. The deed contains the following exception : “Also excepting therefrom such parts thereof as may be sold by agent of said parties of the first part [Missroon and wife] before receiving due notice of this conveyance. The defendant introduced in evidence a power of attorney, dated September 24, 1851, executed by Larkin and Missroon, by Eames, also by Seawell and Hastings to Carpenter, authorizing him to convey lots in Colusa; and he also introduced a deed dated December 12, 1851, purporting to have been executed to Monroe, by Larkin, Missroon, Seawell, Hastings and Hughes, by Carpenter their attorney-in-fact, conveying the premises in controversy. It is claimed that the power of attorney and the deed (both of them having been made before the deed of Missroon to Coggill) prove that the premises therein described are within the exception contained in the deed of Missroon to Coggill. But we are of the opinion that this position cannot be sustained. For they do not prove, as against Missroon, that Eames was his agent. There is more force, however, in the position that the plaintiff is estopped to deny that Eames was such agent. The plaintiff claims title through the deed of Missroon to Coggill and the deed of Coggill to

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Eames. The boundaries of the land described in those deeds, as already remarked, include the premises in controversy, and Eames by the execution of the power of attorney, as the attorney in-fact of Missroon, whereby he purported to confer upon Carpenter authority to convey the premises, represented that he held competent power from Missroon to constitute Carpenter the agent of Missroon, with authority to sell and convey the premises. Although the power of attorney might not bind or affect Missroon, in the absence of proof that he had authorized Eames to execute it, yet when the title came to the hands of Eames from Missroon, Eames was estopped to deny that he had been duly authorized to execute the power of attorney. Its purpose was to induce those desiring to purchase lots in Colusa, to believe that he had power in the name of Missroon to authorize Carpenter to sell and convey the lots, and purchasers relying thereupon, as they were entitled to do, would be injured were Eames now permitted to deny that he possessed the power, which by the execution of the power of attorney he professed to have. The act of Eames and the acceptance of the conveyance esecuted by Carpenter as such attorney-in-fact contain all the elements of an estoppal in pais, and in our opinion, became binding and effectual as against Eames, as soon as the title vested in him, and bind those claiming title under him.

Judgment and order reversed and cause remanded for a new trial.

[No. 5159.)
[Filed, March 26, 1878.]

MCCARTHY VS. POPE.

STATUTE OF FRAUDS - WHEN NOT APPLICABLE.— When a party, by parol, agrees

to purchase certain real estate, and then, by parol, gives the benefit of the purchase to a third party for a consideration, the transaction is not within the statute of frauds; and if the owner of the lands makes the deed to the said third party, and a benefit and advantage is thereby gained by said third party, an

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