cbhrt found'the return'sufticient, 'the plaintiff would then, if allowed, offerevidEmce to contradict it, as suggested. As I have said, my opinion is that the return cannot be contradicted, except ina suit in equity, brought for the purpose of setting aside the judgment thereon. There must be a finding of fact and law for the plaintiff.
SAME 'lJ. LEIGHTON et '" DkIVING P ASS'N.
SAME 17. LINCOLN
(Jourt, D. Neb'l'a8ka. December 17,1888.)
EXECuTION-BALE-RIGHTS OF PURCHASER.
In Nebraska. the title.of a purchaser at e;l[ecution sale Is not complete until . contirmationof the sale by .the court. and where the contirmation, after being entered. is at the same term set aside. before a transfer of the property by the purchaser, his vendees acquire no title· ,In upon special findings of a Jury, where It appears that an attorney in fact fonr years after his appointment had fraudulently conveyed his principal's land. worth $70,000, for $1.000. it will be assumed. under a finding, that the power, of attorneY was executed to enable the appointee "to make conveya'nces to purchasers when sales were made br." persons 'Damed, who had contracted to plat and sell the land. "and to faCilitate their operations under their contract." that the, facts stated in the finding appeared upon the face of the power of attorney. and. the sale not having beeJ;l, made by the persons named. no title passed to the fraudulent grantee which could ' be reeogBized even at law.
.. PRINCIPAL AND AGENT-POWER OF ATTORNEy-EXECUTION-TRIAL-JUDGKENT ON FINDING/!.
8. .TAXATION...,..TAX TITLE-DEED-8EAL. In N;ebrask,a. tax deeds not sealed by the county treasurer with his official seal Bre void. and no title is acquired thereunder where the jury have found that the possession during the statutory period was not "open, notorious, ex· ' clusive, and adverse," but "mixed. II
At I..aw. Motion for judgment upon special findings of fact. ' R. S. Hall and J. R Web8ter, for plaintiffs. Lamb, Ricketts Wilson and Harwood, Ames «KeUy. for defendants.
BREWER, J. Complaina:nt's chain of title ia brief, direct, and clear,. as, follows: ! A patent froIn the United States, December 16, 1862, to Jane Y. Irwin; a deed, August 9,1867, from herto William P. Young; areconveyance,February 6, 1874, from Young to Irwin; a deed, June 11,1884, to complainant. As. against .this chain of title defendants pre. sent three claims: ' First, a judicial sale. On May 19, 1877,a judgment was rendered in the district court of Lancaster county against Jane Y. Irwin. E:xecution waS: issued, and sale made October 2, 1877 ,tGE. :Curson..QetJober 10th an order of confirmation was entered,which, at the same term, and OB November 3d1was set aside. Cursontook this order setting aBide the confi,rmation to the supreme court fOil review, but it was affirmed.! S68Bions v'. :Irwin, 8 Neb. 5., After- the orderi of confir-
· YOUNG ft. DE PUTRON.
mation had been set aside, Curson made a from that springs one of the titles upon which defendants rely.. It is the settled law of Nebraska that the title of a purchaser at an execution sale depends not alone upon his bid or payment of the purchase money, but upon the confirroation of the sale; also that one purchasing at an execution sale submits himself to the jurisdiction of the court as' to matters affecting that sale, and that a court has power during the term to vacate or modify its own orders. or to rescind decrees. Phillipav. Dawley. 1 Neb. 320; Bank vrGreen, 10 Neb. 134,4 N. W. Rep. 942; Volland v. Wilcox, 17 Neb. 50; 22N. W. Rep. 71; Gregory v. Tingley, 18 Neb. 322, 25 N. W. Rep. 88. Itfollows from these facts and decisions that the sale, though temporarily confirmed. was finally set aside, and that no rights of a third party,accrued during the time that the sale was apparently confirmed. Hence this ohain oftitle presented by defendants must fail. A second chain of title is under a conveyance made by an attorney in fact. On the 31st day of 'March, 1874, Jane Y. Irwin entered into a ·eOlltract with Scott, Boyd & La Master, for the platting and sale of the land. They entered upon the land soon thereafter, and surveyed and platted it. On the 24th of August, 1875, Jane Y. Irwin executed a power of attorney to William T. Donavan, to enable him to make conveyances to-purchasers when sales were made by Scott, Boyd & La Master, and to facilitate their operations under their contract of March, 1874. On the 25th day of October, 1879, a deed was executed by Donavan, as attorney in fact, for the land to one John P. Lantz, who on the same day <lOnveyed it to Samuel W. Little. At the time of these conveyances the .land was worth $70,000, and the conveyances were made for $1,000. Within a,monththereafter a revocation of the power of attorney given to Donavan was placed on record, and the conveyances by the attorneys in fact to Lantz, and by Lantz to Little, were made with the intention of defrauding JaneY. Irwin; and the revocation of the power of attorney was knQivn to the subsequent purchasers, as ,well as "all the facts stated therein,prior to their purchases. Obviously the plaintiff's land cannot be taken away by any such transactions as these. When one holding a · power of attorney, which has been lying dormant for overiour years, eonspireswith a third party to make a conveyance in the name of his ·principal ofland worth $70,000 for $1,000, and immediately a revocation ·of that power of attorney 'is placed upon the record, clearly the first ·purchaser acquires no rights, and subsequent purchasers, taking. with knowledge, are in no .better condition. But it is earnestly insisted by defendants that these conveyances transferred the legal title, and that whatever rights plaintiff may have can be established only in a court of I and that, upon the facts as found, judgment must go for defendants. They also insist that on a motionfo):' judgment upon special findings inquiry is limited to the facts stated in the findings,and that the court may not the testimony for further facts; and upon this say that the power of attorney is not disclosed in the findings,nof ,thEl xevocation thereof; .hence the court has no information as to the' terms, limitations, orlll.nguageofeither of these instruments. It may be that
the plaintiff's remedy is in a court of equity, and in view oIthe fact that the defendants have paid the taxes for so many years it is obvious that full protection to the rights of all the parties can be most successfully secured in a court of equity. It may be 3lso that upon this motion I am limited narrowly to a consideration of the facts stated in the findings. Assuming that to be true, it appears from the fourth finding that the power of attorney to Donavan was made "to enable him to make conveyancestO purchasers when sales were made by Scott, Boyd & La Master, and to facilitate their operations under their contract of March 31, 1874." It is not dear from this finding whether the jury mean to affirm that this purpose was,expressed on the face of the power of attorney, or only that that was the purpose of the parties in executing the As the defendants are building up their title, and are insisting upon a strict adherence to the facts stated in the findings, it seems to me that I am justified in assuming. that this finding shows that such a purpose was expressed on the face of the power of attorney. It is not shown by any finding that Scott, Boyd & La. Master ever made the sale, or had anything to do with the sale to Lantz. Nor is it shown that the conveyance upon its face purported to be in consummation of a sale made by those gentlemen. For aught that appears, the power of attorney and the deed taken together may have disclosed both the purpose for which the power of attorney was executed-which of course operated as a limitation on the power-and a breach of trust in the conveyance. It is true that the meagerness of these findings leaves the matter in considerable doubt; but in view of the grievous wrong attempted to be consummated by these transactions,as shown by the findings of the jury, I am constrained to hold against the defendants on this chain of title also, even in this law action. The remaining chain of title is under certain tax deeds. There were two of these..,,-one for the taxes of the year 1867, and dated on June 12, 1871; and one for those of 1868, datedDecember 15,1871. There was no assessment of the land in controversy in the year'1867, nor was the same placed upon the tax-list of that year. Neither deed was sealed by the county treasurer with his official seal, nor did the county treasurer have an official seal. Under the decisions of the supreme court, of Nebraska such tax deeds are void. Sutton v. Stone, 4 Neb. 323; Reed v. Merriam, 15 Neb. 325, 18 N. W. Rep. 137; Hendrix v. Boggs, 15 Neb. 472,20 N. W. Rep. 28; Sullivan v. Merriam, 16 Neb. 160, 20 N. W. Rep. 118; Seaman v. 1'lwmpson,16 Neb. 548, 20 N. W. Rep. 857; Shelley v. Towle, 16 Neb. 195, 20 N. W. Rep. 251; Baldwin v. Merriam, 16 Neb. 200,,20 N. W. Rep. 250. Nor were these deeds coupled with an exclusive and actual adverse possession for 10 years. The language of all the separate findings upon a matter of possession affirmS only a. mixed .' possession. 'fhe jury having in the original verdict, prepared by counseland handed to them for their consideration, str.icken out such adjecttives as "actual, undisputed, exclusive, open, notorious, and adverse," and inserted in lieu thereof the word "mixed," plainly, as I think, indicate thereby their finding that the possession was always a matter of
PRADLEY ll. HYLAND.
dispute. Under these circumstances, the deeds being void on their face, and not coupled with 10 years' open, notorious, exclusive, and adverse possession, this defense also must fail. These being the only questions, judgment will be entered for plaintiff. And the case of Rowena Young v. Harriet Leighton et al., and the case of Rowena Young v. The lIincoln Driving Park A88ociation, are like this, and the same judgment must be entered.
(Gi'f'c'Uit GO'U'f't, B. D. NtwJ York.
PRINCIPAL AND AGEN.T-LIABILITY OF PRINCIPAL PRINCIPAL AND AGENT.
Where an ag-ent, authorized by a principal to purchase supplies for the use of the principal, and instructed to purchase only for cash. purchases in his O.Wll. name, upon credit, of a seller who supposes the age!)t to be buying for himself only, and the principal pays or settles with the age'lt for the sup plies in good faith, that the agent had purchased them for cash or upon his personal credit, he IS not liable over again to the seller for the price of the supplies. The rule that a seller who deals with the agent of an undisclosed principal can, upon discovering the principal, resort to the latter for payment, unless by his conduct he has led the principal in the meanwhile to payor settle with the agent, does not apply to a case in which the agent bought contrary to his instructions, and the seller gave credit to the agent supposing him to be the only principal. and the principal has in the meantime paid the agent.
(ByllaoU8 oythe GO'U'f't.)
In Admiralty. On appeal from district court. by one Fradley against Hyland for supplies furnished Qne Gibson, respondent's agent in charge of a canal-boat. Decree for libelant as to the first cause of action, and respondent appeals. Josiah A. Hyland, for appellant. Peter S. Carter, for appellee.
W ALl.ACE, J. The libel sets forth two causes of action for supplies purchased. by one Gibson. The district court decreed in favor of the libelant upon the first cause of action, and dismissed the libel as to the other. The respondent in the court below is the appellant here, but the libelant, although he has not appealed from the part of the decree by which the libel as to the second cause of action was dismissed, cites the case of Irvine v. The Hesper, 122 U. S. 256,7 Sup. Ct. Rep. 1177, and insists that he is entitled to urge that this court should decree in his favor as to that cause of action. The facts which appear in evidence are these: During the period in which the supplies were purchased, one Gibson, who was the owner, and was managing certain canal-boats of his own, was employed by the appellant, to manage certain canal-boats for the latter. Gibson was to obtain employment for the boats, and return the net v.37F.no.1-4