Majority
Headnote
An enrolled decree of foreclosure, with, the master’s deed to the purchaser, are, of themselves, evidence sufficient to entitle him to recover in ejectment, without producing the original mortgage, or proving it, otherwise than by the decree.delivered the opinion of the court. This case comes before the court in a writ of error to the judgment of the supreme court, on a bill of exceptions. The action of the plaintiff in the court below, was an ejectment brought to recover a house and lot in Broadway, in the third ward of the city of Hew York, by a' title under a master’s deed for the premises, given in pursuance of a decretal order of the court of chancery, for the sale of the same, for the satisfaction of a mortgage thereon. The master’s deed was the plaintiff’s title to the premises. The defendant below objected to the sufficiency of that title; and, for his further defense, produced a lease of the premises to himself, given nrior to the mortgage under which the plaintiff’s title was derived.
Action below.
Ejectment deed, on foreclosure.
The first objection to the plaintiff’s recovery was the alleged defect of his own title under the master’s deed. To understand the bearing of this objection, we must advert to the leading facts of the case, and the circumstances which preceded the mortgage under which the master’s sale took place.
1st objection.
Mary Clarke, who died seised of the premises in fee, by her will, dated April 6th, 1802, devised the same, and certain lands at Greenwich, to Benjamin Moore and Charity his wife, and Elizabeth Maunsell. as joint tenants in fee, in
The leading facts.
After the death of the testatrix, Moore and wife and Elizabeth Maunsell, the trustees, in 1805, executed a power of attorney to T. B. Clarke, the cestui que trust for life, empowering him to grant leases of the premises for any term not exceeding 21 years; audio take the rents to his own use.
On the 30th of September, 1808, B. Moore and Charity his wife, gave another power (in which Mrs. Maunsell did not join) to T. B. Clarke, authorising him to lease for any term not exceeding 21 years, or during his life; and to receive the rents to his own use; and further authorizing *him to sell the rents for any term not exceeding 7 years, or during his life.
On the 22d of February, 1813, the trustees were authorized, by a decretal order of the court of chancery, to make permanent leases of the premises for 21 years, provided such leases did not interfere with any existing lease; and that the consideration should consist of a yearly rent, and the permanent buildings to be left on the premises.
On the 8th of March, 1813, Clarke, as attorney for the trustees, made a lease of the house in question to Sinclair, reciting a former lease to him for 10 years from the 1st day of May, 1810, and which had 7 years to run, and demising to him the same for 14 years from the 1st day of May, 1820, when the first lease was to expire, at the yearly rent of $450
On the 27th of April, 1813, Clarke sold to Sinclair his interest in the rents to accrue on this lease, for the last 14 years, for $950.
The legislature afterwards, in'-1814, 1815 and 1816, passed three successive acts for the relief of Clarke. By the first of these acts, the chancellor was authorized to appoint one or more persons to execute the trusts of the will of Mrs. Clarke, in the place of the three trustees named therein, who were discharged from their trusts; and the trustees so to be appointed were authorized to sell the premises in question, and the znoiety of the land at Greenwich.
Several orders, were made by the chancellor .under these acts. By one of these orders, made the 30th of May, 1816, Clarke was authorized (so far as the assent of the court was requisite) to give mortgages in fee to the Manhattan Company,, or other mortgagee or. mortgagees, for ^securing as well the money such mortgagees might lend to Clarke, as the debts he might then owe to such lenders.
Clarke, in conjunction with James A, Hamilton, (described as trustee,) on the 16th of October, 1818, executed a mortgage in fee on- the premises to Mapes, and Oakley, to secure a debt of $1000 then due to them; and after-wards gave another mortgage on the premises to D. S. Kennedy, to secure a debt due to him. Neither of these mortgages was produced on the trial.
The mortgage to Mapes and Oakley was afterwards foreclosed on a bill filed by Mapes and Oakley against the other parties; and an order made for the sale of the mortgaged premises to satisfy the mortgagees: and under that order a sale was made, , and a deed executed by the master to Field, the lessor of the plaintiff below, who became the purchaser.
No notice is taken of the defendant’s lease, either in the pleadings in the .suit-for the foreclosure and sale of. the mortgaged premises, or in the master’s deed. But proof was offered and admitted, under exceptions to its competency, to show the admission of Mapes that the mortgage was delivered to and accepted by him, subject to the lease; and the auctioneer was. called, to prove that the'premises were sold by the master subject to the lease; and that in consequence thereof, they were sold for $4,000 only, when Field, the purchaser, had before offered at one time $5,000,
The plaintiff at the trial, to prove his title, produced the will of Mrs. Clarke, the acts of the legislature, and the several orders of the court of chancery under them, an exemplified copy of the proceedings of the court of chancery tó foreclose thé mortgage, and the master’s deed to Field, the lessor of the plaintiff below.
1 It was contended, on the part of the defendant, that the plaintiff below was bound to produce the original mortgage to Mapes and Oakley, upon the authority of the rule that , . prevails m the ease of a shenfi s deed, under an execution *upon a judgment at law, which was supposed to be an analogous ease. I do not see the analogy. The sheriff’s deed derives its force from the judgment; for the office of the execution is to enforce the judgment to which it refers, and from which it derives all its virtue, and hence the necessity of producing the judgment which is the source of the title. But the decree was itself of equal force with a judgment: and the deed executed by the master is declared by statute to be as valid as if the same had been executed by the mortgagor and mortgagee, and to be an entire bar against them, and each of them and their heirs. The decree, then, was sufficient; for it was the adjudicaof a court of competent jurisdiction upon the subject matter, and it could not have been necessary to produce the mortgage;[4] and besides, the defendant, who was a stranger to the proceedings, had no right to object to the non-production of the mortgage, for he was not a party to the foreclosure, and the sale could not divest any right he had to the premises.
Enrolled desure “amTmaí teF’f deed aF0 evidence m ejectment by purchaser, without promort'
a stranger does not diTest his rigilts-
Other exceptions were taken to the regularity of the
Other excepable8 n<>t
Grant v. Duane, 9 John 612 .
I do not perceive the conflict between these mortgages considered as valid securities, and the contract created by the lease to Sinclair. If that lease is effectual, it will take precedence of the mortgage, and must be first fully satisfied, before the interest acquired by the sale under the mortgage, can attach; and if the lease is invalid, it owes its failure to its own defects, and not to the interference of .the mortgage.
Mortgages cannot affect if that be vaua-
*As to the objection to the unconstitutionality of the laws, as respects the rights of the children of Clarke, the devisees m remainder, it involving the validity of the mortga§es as a§a™sfc them, they alone are competent to urge it. If they question the legality of the acts of their father, the court before which the objection shall be raised, will give it all the attention which the importance of the principle it jnvo¡veS/ anq the results it has produced, so obviously require. It would be premature now to examine it. This
Whether a an^order^'of thereon^trans ferring ’ the fants8 are unconstitutional or void?
tween these the^mortga^e must be taken as executed in pursuance of The statutes
.f the mortgage ciarke’s°hfe.f°r Conveyance or mortgage m fee, by tenant ¡11¡'g’1¡fegood'
This lease was given by Benjamin Moore and Charity his wife, two of the trustees in whom the premises were vested, by their attorney, in the lifetime of Mrs. Maunsell, the other trustee, and without her joining in it; and the leading objection to it was, that it was not the concurrent or joint act of all the trustees. The two trustees who are parties to it, executed it by T. B. Clarke, their attorney, by virtue of a power given by them to him, to make leases for a term not exceeding 21 years, in which power Mrs.
of the loa»,
. It will be observed, by turning to the lease, that it recites a former lease of the premises from the same lessors to the same lessee, for the term of 10 years, commencing the 1st day of May, 1810, and ending the 1st day of May, 1820; and then makes a- further demise of the same premises for the additional term of 14 years, to commence the 1st day of May, 1820, at the end of the recited lease, with the obvious intention of coupling the new term and the residue of the old term together, to make up the term of 21 years ; and thus to exhaust, without exceeding the authority conferred upon the attorney by his constituents, to make leases for terms not exceeding 21 years. •
The first term of ten years granted by the recited lease, had expired when the suit was commenced; and the demises in the plaintiff’s declaration were laid on the 2d of May, 1820, being after the expiration of that lease.
The recited lease was not produced on the trial, but the. defendant below relied on the recital of. it in the second lease, as sufficient proof of its execution and contents. The second lease was in evidence. It was given in March, 1813, during the subsistence of the first term for 10 years, but was not to take effect until the expiration of that term.
*The separate objections to the recited leases are, that it was not sufficiently proved at the trial, and that it had expired before the commencement of the suit.. The answer is, that the recital of it in- the. second lease proved it by way of estoppel, and that it is material as connected with, and supporting the second lease. The first lease, if it was pn proof being expired, cannot avail the defendant, except 1 7 - . . . . 1 1 for the purpose of obviating an objection taken to the second lease, that it was made to commence in futuro. That objection to the second lease is already fatal, if the existence .of theprior term does not obviate its force,.- But súpPosinS the first lease to be in proof, the plaintiff still adheres to the objection, and it may admit of a question,
Whether, under s general leasing power, a lease can be menee ‘in fuhir°, after the ftXp‘mibaisting ito ethe7e¡Liné power ? Quere.
if it can, yet nJe™! ceed the time t£e power.
„ Such excess makes it void though” y:sht be good (Sudg. on Powers, 550. Roe v. Prideaux, 10 East, 158.
It is further objected to both leases, that the trustees had no power, by the will, to make leases, and that if a power is implied, it could not be delegated to an attorney; *being coupled with a confidence, must be executed by the trustees themselves, in person. To this objection, the defendant below answers, that the power to lease is incident to the estate vested in the trustees ; and, being incident, 1 i-i ' . . „ may be executed by an attorney. The point is not free from difficulty. It evidently pressed itself upon the parties at an early stage of their trust operations, and prompted them to an application to the court of chancery for further powers. It was competent to that court to vest the trustees with the authority so important to the beneficial exercise of their powers; and an order was made authorizing them to give permanent leases for 21 years. This order removed the exception to the want of power to lease; and
Equitable title “gainsta*legd ment
t^ea^can without express power? Quere.
tomey? Quere.
Semh. they restricUiim to the conditions tbemse?ves.P°U
Be that as it may, another objection is raised, which applies to both the leases, and appears to me to be insupera^e- I* ig) that they were not executed by all the trastees who were living at the time. Mrs. Maunsell is not a party to either of them. She executed the first letter of attorney to Clarke, but did not join in the second. It is said that the second power did not supersede or revoke the first; and that the attorney may be considered as acting un<jer the joint power of the three trustees, and not under the , separate power of the two alone. There is strong internal evidence to show that he intended to act under the latter
power; but assuming that he acted under the first, he has made both deeds the leases of B. Moore and Charity his wife, whom he calls the acting trustees, solely, and not the leases of the three trustees jointly. The second lease was made subsequently to the order of the court of chancery of the 22d of February, 1813, authorizing the trustees to make permanent leases of the premises for 21 years, and is said to have been made under *the authority of that order. If so, it might furnish an answer to the objection made to the leases for the want of power in the trustees to lease; but is no answer to the objection, that the trustees do not all join in the lease, for their concurrence in the act was as necessary under the order of the court as under the will of the testatrix. The order authorized them, or the survivor or survivors of them, to lease, and that was the authority they derived from the will. Then was it necessary for them all to join in the lease, as demising parties, to make it effectual in law? It is a settled rule, that when a trust or authoritv is delegated for mere private purposes, the concur- J „ „ . . , , . ,, . rence of all who are intrusted with the power is necessary to its due execution. (Green v. Miller, 6 John. 39 . Franklin v. Osgood, 14 id. 560. 1 Caines’ Oases in Error, 16. Sudg. on Powers, 162, 263.) The powers of the trustees, whether express or implied, must be executed strictly; and the principle applies equally to trusts or powers coupled withan interest, and where the trust or power will survive, as to mere naked authorities, and the leases not being executed by all the trustees who were living, are absolutely void.[4] The subsequent death of Mrs. Maunsell, if it had
ai^join1 *****7 inUSa tease, if alive, whatever pas-they Iease^in person or by even the moiety of those who do execute the lease,
Where a trust several for *a mere private purpose, they must ail join in (Green v. Miller, 6 John. 39 . Franklin v. Osgood, 14 id. 560. 1 Cain. Cas. Err. 16. Sudg. on Powers, 162, 263,) appUes as well iea with auii> "trusts^ as to naked P°wors.
It was urged, that .if the leases were, defectively executed, the cestui que trust alone could take advantage of the *defect, and that the plaintiff below could not object to them on that ground. That principle might apply to a voidable lease; but these leases are not merely defective and voidable, hut absolutely void ; and a stranger may object to a void instrument,- for it is a nullity.
But it is contended that the trustees under this will were j°inh tenants, and that the separate lease of each joint tenant was valid and effectual for his own share of the joint estate. As applicable to joint tenants of estates in their own right, this position may be true, but the principle cannot apply to trustees; they have no separate interests t^eir own, on which the separate deeds can operate; they conjointly represent the interest of the cestui que trust,
Tho’a lease or one^oíntCtenant in his own “rate “on Ms W,es the apply to joint are tmstee&h°
ALBANY, Sinclair v. ^acliSOn-
They cannot unleslspecfah ^e^trast instrument.
The authorities cited to show that trustees may alien the trust estate, and that one trustee may sell his moiety of the estate at law, taken in their broadest latitude, prove po more than that the trustee, having the legal estate vested in him, may, for lawful purposes, or in breach of his trust, alien the lands; but they show, at the same time," that the purchaser to whom the estate is granted, if he take it without notice, takes it subject to the trust, and becomes himself a trustee. They cannot apply to leases or other disposition of the estate in execution of the trust; and where the lessee or purchaser takes an interest in the land under the trustees for his own benefit, and for which he is to pay to the trustees.a consideration, or render to them a rent; but which is not to introduce him into the trust as á trustee.
Q.m,ert 0n Dsea, 62, old
• But it was said, that if Clarke exceeded his powers in giving the leases in question to the defendant below, as valid leases of the trustees, when they were in truth nugatory *and void, he has made himself the. contracting party,and shall, be personally bound by the deeds; and oases are cited to show that an attorney who executes a deed with covenants in his own name is personally liable; ( 13 John. 307 , 310; 3 John. Cas. 70; 5 East, 148;) but these cases turn upon the point, that the party who is held responsible, executed a contract or deed in his own name, r . ’ ’ professing to have a power from another which he has not. This was the point in the case cited from East, and of that A 1 cited from 13 John.; and the principle is salutary and just; for it operates to restrain and punish the guilty, and to protect the innocent; aud it encourages fair and open ■ing between contracting parties. But it has no application
White v. Skinner, 13 John. 307 , Dusenbury v. Ellis, 3 John. Cas. 70, Appleton v. Binks, 5 East, 148, do not apply.
Where an at> torney profess-power^bavtog aonaUy 1/ouudl
Sut not where he has power, and errs in its execution.
The doctrine of estoppel was relied on as applicable to this case; but I am satisfied that the principles which belong to that doctrine, cannot affect the plaintiff in this suit.
The estoppel was supposed to be created by the grant and release from Olarke to Sinclair, of the rents reserved by the second lease. This grant and release is indorsed upon the lease. It is executed by Olarke in his own right, and not as attorney to the trusteés; and in it, Olarke, acting in his own right, recites that he was the lawful owner and proprietor, for the term of his natural life, of the premises in the recited lease, thereby demised to Sinclair; and was justly entitled to the yearly rents thereof as reserved by the lease. This recital is said to estop Olarke, and the lessor of the plaintiff below, as claiming under him, from denying or calling in question- the validity of the lease; and the case of Jewell, (1 Roll. Rep. 408,) is cited to support the position."
Jewell's case, 1 Roll. Rep. 408.
In that case, the plaintiff declared upon an obligation, with condition to perform covenants contained in an indenture referred to in the condition: the defendant said *in his plea, that there was no such indenture; and the court overruled his plea as frivolous, because he was estopped from the denial of the indenture. The case of Shelly v. Wright, (Willes, 9,) is also cited to show that a recital in a deed of a particular fact, or of an indenture, estops the party to deny the fact, or deed so recited; and Co. Lit. 352, &., was relied on, to prove that the acceptance of rent would estop the lessor from’ denying the lease. The principle of these authorities is not denied; but' it has no application to this case. The principle is that an estoppel concludes the party from alleging the truth; and. therefore a -man who admits a fact or deed in general terms, either by reciting it in an instrument executed by him, ,or by acting under it, shall not be received to deny its exist
Skelly v. Wright, Willes, 9.
Co. Lit. 352, a
A man who admits an act or deed, by reciting it in an instrument executed by him,
or by acting ^a^ria eat^ pea.
But not if the b™that which would other-Stopped!* til°
topp'elf
[1] [1] By receiving a second deed of warranty from the same grantor of the same premises, the grantee is not estopped from asserting that his title passed by the first conveyance. Thompson v. Thompson, Maine Rep. by Appleton, 236. A stranger to the first deed, having no authority to contest'its validity when given, cannot defeat that title by means of the doctrine of estoppel, üecause the grantee has taken a second deed of the same premises. Ib. Where the former decision of the same matter can be set up on pleading, as an estoppel, the party who wishes to avail himself of it, must plead it in bar of the further litigation of the same matter. But in those cases where the form of proceeding does not allow of special pleading, it may be given in evidence; and is conclusive upon the parties, the court, and the jury. Kingsland v. Spalding, 3 Barb. Ch. Rep. 341 . Where both parties had derived their title to the premises under the will of a former occupant, and the defendants, or those under whom they derived title, had recovered the premises from the ancestor of the complainant, upon the ground that the legal title was vested in the surviving son of such former occupant by the will of his father. Held, that the defendants were estopped from denying the title of such surviving son, under whose title they had sue *587 ceeded in their action at law; the complainants claiming under a prior equitable title derived from Such son. . Varíele and others v. Edwards and others; 11 Paige, 289. A sale, made by order of the court, is only complete when the terms of sale are complied with, and the purchaser accepts a conveyance. Cruger v. Daniel, McMullen’s Eq. Rep. 157. The confirmation of a master or commissioner in equity’s report of Sales, or having paid money, is not a judicial but an administrative order. Its object is not to determine the truth of the fact reported, but to protect and approve of his act; and if the fact be incorrectly reported, the parties are not estopped from showing the truth. Ib. It is now a well settled rule, that the admission of a party, having complete knowledge, against his own interest, is evidence between third persons; more especially when they are in writing, and the party making them is dead. Ib. An estoppel is reciprocal, and binds both parties; so a person making a conveyance, who has no title at the time, but afterwards acquires, one, is es-topped to deny that he was seised at the time of the conveyance. So, also, a party, by accepting a conveyance, is estopped to deny his grantor’s title. If he afterwards buys a better title, though he may claim to be reimbursed the money which he has paid to complete the title, he cannot use it, to defeat his contract with his first grantor. Ib. Estoppels are mutual. Porterfield's executors v. Clark, 2 Howard, 109 . They run with the land, into whose hands soever it comes; by which the parties and all claiming under them, as well as the courts, are bound. Ib. Where a vendor conveys a defective title, with warranty, and afterwards obtains the legal title, such title is vested in the vendee by estoppel, and no further conveyance is necessary. Bush v. Marshall, 6 Howard, 291 . A mortgagor is estopped by his deed from denying seisin,' Bush v. Marshall, 6 Howard, 288 . A party who attempts to impeach his deed in court, must show in what his equity consists; for, as a question of law, he is estopped from denying his own deed. Payne v. Atterbury, Harrington’s Ch. Rep. 414. In matters of private litigation, no one, in general, can be bound by a judgment, unless he be a party to the suit, or in privity with some party. Ib. The acts of trustees de facto of school lands are valid, and a title given by them cannot be questioned by their successors, nor by any other person. Moore v. Caldwell, Freeman's Ch. Rep. 222. The instrument to estop a corporation, must be the deed of the corporation under its own proper seal; and, if the deed of a third person, is insisted on, as against the corporation, then his authority and agency must be-establish *587-1 ed by the party claiming adversely. Bank v. Rose et al., 1 Strobhart's Eq. Rep. 257. If the doctrine that a party who has a title to property and stands by and encourages and promotes a sale thereof to a third person, thereby waives his title, or is estopped to maintain it, can be applied at all by a court of law to real estate, it can be so applied only where such party conceals ah outstanding title. Parker v. Barker, 2 Met. Rep. 423 . Where parties go into possession of premises, claiming title thereto under a conveyance to a particular grantee, they cannot set Up an outstanding title in a stranger, to defeat a person who claims the premises under the same title as themselves, but by a prior right, which overreaches their claim. The Bank of Utica v. Mersereau, 3 Barb. Ch. Rep. 628 . Persons entering into possession .of land, under the defendant in a judgment, subsequent to the issuing df an execution thereon, are bound to yield up the nossession to the purchaser under such execution, unless they can show a better right in themselves, or establish the fact that the judgment was invalid as against them. Ib. Vide 2 Barb. S. C. Rep. 206. Where the breach of the covenant of seisin in a deed, affects the whole title, so that nothing passes to the grantees, a recovery by such grantees for the damage sustained by the breach of that covenant, may have the effect to prevent the operation of the estoppel created by such covenant, or even by a covenant of warranty; by creating a counter estoppel, which would prevent the grantees, or those claiming under them, from alleging that they acquired the title to the land, by the original conveyance to them. Ib. Vide 9 Mass. Rep. 143 ; ib. 336. Although the grantee in a deed which contains a covenant of seisin, in connection with general covenants of warranty, and the heirs and assigns of such grantee, are not estopped by snch deed from showing that the grantor had no title to the land attempted to be conveyed, the warrantor and those claiming under him, in the post, are estopped by his covenants from alleging that he had not a perfect title to the land when he conveyed the same with warranty. Ib. And, therefore, a re-conveyance of the land, by the grantee thereof, without covenants of warranty in such re-conveyance, will not prevent such original grantee from recovering for a breach of the covenant of seisin contained in the conveyance of the premises to him. Ib. Vide 3 Johns. Rep. 363 ; 9 Mass. Rep. 336 . Where a party enters into the possession, of land, claiming under a particular title, he cannot set up an outstanding title in a stranger, as a defence to a suit, brought by the owner of the title under which he entered, to reco *587-2 ver the possession of the premises. The Bank of Utica v. Mersereau, 3 Barb. Ch. Rep., 528 ; Vide 6 Johns. Rep., 34 ; 7 Ib. 157; 6. Ohio Rep. 89; 4 Dev & Bat. Law Rep. 449. But a,party who has gone into possession of land as the tenant of another, and acknowledging his title, is. only estopped.from denying the validity of that title, and setting up a.better right in himselfj. so long as be retains the possession, or. during the continuance of the tenancy. Kor, upon the termination of the lease, and the restoration, of the possession, he may sue and recover back the.possession of the premises, upon showing, a-better title, in himself., Ib. Vide 2 Binn. Rep. 471 ; 1 Nott & M’Cord’s Rep. 374; 7 Cowen’s Rep. 644; 12 John. Rep. 183 ; 5 Conn. Rep. 301 . By the common law, if a grantor who has.no interest, or only a defeasible interest in the premises granted, conveys the.same with warranty, and after-wards obtains an absolute title to the- property, such title immediately becomes vested in the grantee, or his heirs or assigns, by estoppel. And if the grantee, or any one claiming title from him, subsequent to such grant, seeks to recover the premises by virtue of such after acquired title, the. original grante'e, or his heirs, or. assigns, by virtue of the warranty which runs with the title to the land; may plead such warranty by way of rebutter or estoppel,- as an absolute bar to the daim. Ib. Vide Cov. Co. Litt. 365 ; Terms De La Ley. tit Guaranty; Toml. L. D. art. Rebutter. This principle has been applied to all suits brought by persons bound by the warranty or estoppel, against the grantee, or his heirs or assigns; so as to give the grantee, and those claiming under him, the same right to the premises as if the subsequently acquired'title,, or interest therein, had' been actually vested' in the grantor at the time of'the original conveyance from him with warranty; where the covenant of warranty was in full’force at the time when such subsequent title was acquired by the grantor. Ib. Vide 14 John. Rep. 193 ; 6 Watts, 64 ; 13 Pick. 119 . And,' where an estoppel’ runs with the land; iff operates upon the title so as actually to alter the interest in it, in the hands of the heirs or assigns of the person bound by the estoppel, as well as in th'e hands of such person himself. Ib. As a covenant of warranty runs with the land, so as to give the heirs and assigns of’the grantee the benefit of'the estoppel,' as against'the warrantor, it runs with the subsequently acquired interest of'the warrantor, in the hands of the heirs and assigns of the latter; so as to hind that interest "by the estoppel, as against any person claiming the same under him, in the post. Ib. Vide 7 Greenl. Rep. 96; 3 Pick. Rep. 52 ; 7 Conn. Rep. 214 ; 4 Dev. & Batt. 42 ; 9 Wend. Rep. 209 ; Am. Ch. Dig., pp. 98, 99, 100, Nos. 1 to 13, inclu sive; ib. Nos. 16. to 30, inclusive.
proprietor for his life, of the premises described in the within written indenture of lease, and, in and by the within Written indenture, demised and leased to George Sinclair within named, and is justly and lawfully entitled to the yearly rent thereof, as reserved by°the within indenture of lease.
How this- reeital of. the lease, and reference, to it,, made it parcel of the. deed, of grant and release,, as fully as if it had been recited at large, and incorporated therein. Indeed,. the release, is unintelligible without the lease to render it complete;. and reference must be had to the lease, to
ascertain what the rents are which the deed indorsed upon it professes to grant and release to the lessee. Bésides, the the deed of grant and release is so attached to the lease, that the one cannot be produced without the other. This recital, then, cannot estop the plaintiff from alleging the lease to be void; because the .lease itself is produced, and bears on the face of it the evidence of its own nullity; and, on the principle of the cases from' Coke and Comyn, the truth appearing by the same record which contains the recital of its validity, may be alleged notwithstanding the recital. But, again, the defendant himself produces the lease he would prove by the recital; and if the plaintiff, under the circumstances and in the absence of the lease itself, would be estopped from gainsaying its existence or contro-, verting its validity by the general recital of it as a valid lease,' in the deed indorsed upon it, the matter would be set at large, and the case opened to all lust obiections, bv the . V • , • y J a , ■ J -.y ■ .■ ’ J introduction ot it by the defendant as evidence m the cause, I may add that the deed is executed by Clarke in his. own right, and the lease as attorney for the trustees; and that the plaintiff in the ejectment claims under Clarke .as trustee, under the act óf the legislature, and not in his own . . . . ’ ' - ... . right; circumstances which, of themselves, might preclude the application of estoppel. *But I rely on the answer already given as conclusive; and hold that the recital in the deed cannot estop the plaintiff from alleging the lease to be void, nor in any respect confirm it.
Semb-that aR estoppel of one as to a previ°e¿sitg®®df’ a subsequent where'S. both d®®'13 ar® ,in .the same right, not where he. ®*e°MSes 0wa, and the right,
But it is urged that the defect in the lease proceeded from the mistake and fault of Clarke in executing the power delegated tti him by’the first letter of attorney executed" by all the trustee's, and conferring upon him an effectual authority to make a valid lease; and that, having received consideration for the léase, he would be'compelled to rectify; the mistake; and supply the defect.
If the objection was a" defective execution of the power by the attorney, equity, in regard to the consideration, - ’ might compel the parties to supply the' defect: But' the remedy, in that case, would'be in équity'; and'the defective lease would be inoperative at law, and must1 yield to
wUl supplytim defect.in l1'6 execution of a power, yet a tiferefore^be S®*UP under it
The remedy is equity.0™6 °f
®"or was it legally available to the defendant, for his defense to the ejectment, to show that the mortgage was taken su^Ject to the lease, or that the master’s "sale was with knowledge of the lease, and subject thereto; for the evidence show the facts being parol, and in contradiction to the terms of the mortgage and the master’s deed, was incompe- . . r tent and inadmissable; and, if admitted, would not comfirm ^ease) or render it valid; for, being absolutely void, it was incapable of confirmation at law.
A mo t ana “master’s closure“being absolute on rol cannot be given to show that they were t?°a Te'fse • such evidence diction of” the
would such a circumperly6’appearconflrmTvoid lease.
If the acts or admissions of the parties to the mortgage, or circumstances attending the sale, or the notice chargeable upon the purchaser, of the claims of the defendant gave him any rights as against the plaintiff below, those are °f equitable cognizance, and cannot prevail against the legal estate of the plaintiff in ejectment.
merelyVoiiis incapable_ of at“law.atl011
Mf opinion is, that the judgment of the S. 0. was correct, and ought to be affirmed.
Per totam Curiam.
Judgment affirmed.
Footnotes
- [1] [1] An enrolled decree is evidence of"itself to sustain a conveyance made under it; aliter, if the decree be not enrolled. Grebbin v. Davis, 2 A. K. Harsh. 17. There can be no doubt that the decrees of this court rank as judgments, and bind the property of the debtor; and must be paid as'judgment debts by the executors. Woddrop v. Price's ex'rs., 3 Desau, 206. A decree is deemed equivalent to a judgment at law, as to the distribution of assets. Thompson v. Brown, 4 Johns. Ch. Rep. 636 ; Woddrop v. Prices ex'rs., 3 Desau. 206. *578 A decree cannot be incidentally assailed, but is conclusive as to the rights and liabilities of the parties until reversed by the appellate court, or impeached by an original bill for fraud in obtaining it, or attached for palpable error, by a- bill of review. Sanders' heirs v. Gatewood, 5 J. J. Marsh. Rep. 327. Decrees are liens on real estate only from the time of being docketed, not from the period of enrollment. But an execution may issue immediately after the enrollment, and a levy will hold (where there are no chattels) if actually made upon the real estate. Still, the fi. fa. should direct a levy and sale of lands of which the defendant was in possession at the date of the decree. Norton v. Tallmadge, 3 Edward’s Ch. Rep. 310. A decree in equity for the payment of money, constitutes a lien on land, similar to that óf a judgment at law, so as to bind it in the hands of a purchaser whose title has not been matured by the statute of limitations. Blake v. Heyward, Bailey’s Eq. Rep. 208. Am. Chan. Dig., vol. 1, p. 507, et seq., Nos. 186, 190, 192, 233, 234, 237.
- [1] [1] Where an estate is devised to executors, in trust to sell, convey, &c., they may act by attorney j otherwise, if the will gives only a naked power. May’s heirs v. Frazee, 4 Litt. 391 ; Bergen v. Duff, 4 Johns. Ch. Rep. 368 . Where a power was given to B. and C., executors, to sell certain lots of land, if, under the circumstances of the times, they should deem it prudent; held, that an agreement for the sale entered into by B., for himself and 0., under a power of attorney from the latter, was not valid, the power to sell being a personal trust and confidence, to be exercised by them jointly. Bergen v. Duff, 4 Johns. Ch. Rep. 368 . Testator devised his real estate and negroes to his son, Gr. W., in trust, 1. To apply the rents, issues and profits to the use of himself and family, and the education of his children ; and, 2. To give or devise by deed or will, the said property (and the rents, issues and profits thereof, over and above what he should apply to the uses aforesaid) “unto all, or any child or children by him begotten, or to be begotten, in such way or manner, and in such proportions, and for such uses, estates and interests, as he shall think fit and pro-, per.” Gr. W. died leaving a will in force, whereby he devised the whole of his estate to his wife, with directions to his executrix and executor (his wife and son) to act under his father's will, in trust, in every respect and manner intended by their grandfather.” Held, 1. That the legal title was vested in G-. W., coupled with a power or trust to appoint, at his discretion, among his children; 2. That the power could not be delegated; 3. That as Gr. W. had neglected, to execute the power, his children were entitled to divide the property equally. Withers v. Yeadon, 1 Richardson’s Eq. 324; Am. Ch. Dig., vol. 3, p. 242, et seq., Nos. 47, 57, 108.
- [1] [1] A power to sell, coupled either with an interest or trust, survives to the surviving trustee or executor. Taylor v. Benham, 5 How. 233 ; Peter v. Beverly, 10 Peters, 532. So, also, if all the trustees or executors decline to act except one. Taylor v. Benham, 5 Howard, 233 . There is not the same strictness required as if the power to sell were a mere naked one. Ib. Haked power, power coupled with trust, power coupled with interest. Ib. Where a power given to several persons to sell, is not eounled with an interest, it must be executed by all, and does not survive. Peter v. Beverly, 10 Peters, 533. *583 The interest in such ease is not tor be understood of .an interest beneficial to the trustees but of the legal estate vested in him,. Ib. Where an executor, guardian, or other trustee is invested -with the rents and profits of land, for the sale or use of another, it is still an authority-coupled with an interest, and survives. Ib. When a power is given to executors [as to sale, &e., of real estate,] and there are no words warranting the conclusion that the testator intended, for safety or some other object, a joint execution of the power, as the office of executor survives, the power also survives. Ib. Am. Oh. Dig., vol. 3, pp 245, 246, Nos. 93 to 100, inclusive.
Cases cited
- Trustees of Dartmouth College v. Woodward 4 Wheat. 518 p. 573