Taylor v. Burns, 203 U.S. 120 (1906)
Taylor v. Burns
No. 28
Submitted October 16, 1906
Decided November 12, 1906
203 U.S. 120
APPEAL FROM THE SUPREME COURT
OF THE TERRITORY OF ARIZONA
Syllabus
The word "sell" in an agreement affecting, but not in terms granting or conveying, real estate will not be given any more effect upon the title than is necessary to accomplish the purpose of the transaction stated in the agreement, and under the circumstances of this case, the agreement held not to be a conveyance, but a power of attorney to sell at the specified price and subject to revocation, not being coupled with an interest.
The phrase " coupled with an interest," in connection with a power of attorney, does not mean an interest in the exercise of the power, but an interest in the property on which the power is to operate. Hunt v. Rousmanier’s Administrator, 8 Wheat. 174.
76 P. 623 affirmed.
On March 26, 1901, Thomas Burns, the owner of three mining claims, as party of the first part, and Charles M. Taylor, as party of the second part, made the following agreement:
The said party of the first part, in consideration of the sum of one dollar lawful money of the United States of America in hand paid, the receipt whereof is hereby acknowledged, and for the further consideration of money and labor heretofore expended and of labor to be hereafter expended in and upon the Magnet mining claim, the Comet mining claim, and the Victor mining claim, situate in the California mining district, in the Chiricahua Mountains, Cochise County, Arizona territory, sells to the said party of the second part the said mining claims upon the terms and consideration following, to-wit:
The said party of the second part shall pay to the party of the first part, whenever he shall negotiate, sell, or place said mines to any assignee of the said party of the second part, forty-five thousand dollars ($45,000), and in addition thereto one-eighth (1/8) of whatever price the said party of the second part may be able to sell, place, or negotiate the said mines, for a consideration in excess of said $45,000 -- that is to say, the party of the second part is authorized to sell and negotiate the said mines for any price above the sum of $45,000, and may retain out of the said purchase price seven eighths (7/8) of said selling price above such sum of $45,000.
The said parties hereto hereby mutually agree to aid each other in the negotiation and sale of said mining claims to the end that the same may be sold and the consideration realized as quickly as possible. And the said party of the first part hereby agrees to execute any deed or deeds or conveyances that may be hereafter necessary to convey a good title to said mining claims. This contract is to take the place of and supersede any and all other contract or contracts heretofore made by said parties hereto with reference to said mining claims.
On November 9, 1901, Burns deeded a one-fourth interest in the mining claims to John A. Duncan, and on March 9, 1903, Burns and Duncan conveyed the entire property to S. R. Kauffman as trustee. On February 27, 1903, Thomas Burns executed and filed for record a revocation of all authority given by the agreement to Taylor, and notified him by letter of such revocation. On April 6, 1903, Taylor filed his bill of complaint in the District Court for the County of Cochise, Territory of Arizona, against Burns, Duncan, and Kauffman, alleging that he was the owner of the mining claims, that defendants claimed to have some interest in them, and praying to have his title thereto quieted. The defendants answered, and also filed a cross-bill, alleging in substance that plaintiff had no title whatever, and praying that their title be quieted as against him. A trial in the district court resulted in a decree in favor of the defendants, which was affirmed by the supreme court of the territory, 76 P. 623, and thereupon the case was brought here on appeal.