Waldron v. McComb — 1 Hill & Den. 111

Majority

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B. Waldron and Sally Ann his wife vs. Mary C. P. McComb.

Headnote

Where a naked power to sell lands was given by will, accompanied by a direction, that the moneys arising from the sale should be invested, &c. for the purposes of the will: Held, that according to the obvious import of the power, the sale must be for cash, or something which could be invested; and a deed under it, reciting facts which showed that the grantor conveyed partly for money, and partly in consideration of an equitable claim of the grantee, was held a departure from its purpose, and therefore void.

A naked power to sell must be pursued, both in respect to its purposes or object, and the forms prescribed in it; and, semble, a deed under it, exhibiting a defect in either particular, is void, both at law and in equity.

So, semble-, in respect to sales under powers of a public nature; e. g., by collectors of taxes, or executors or administrators in virtue of a surrogate’s decree for the payment of debts, &c.

Ejectment, tried before Ruggles, C. Judge, November 12, 1839, at the Westchester circuit. The case was this: In May, 1799, Joseph Eden, being seized in fee of the premises in question under the will of Medcef Eden the elder, subject to an ex-ecutory devise over to Medcef Eden the younger, in fee absolute, in the event of said Joseph dying without isssue before said Medcef the younger, executed a deed of said premises, in fee, to Alexander McComb. The defendant claimed under this deed. But, in 1826, it being discovered that her title was defective, on account of the executory devise over to said Medcef the younger, which had attached by the death of said Joseph without issue, an attempt was made to remedy the defect, as follows:

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Medcef the younger had made his will in 1819, devising all his real find personal estate to Rachel, his wife, fpr life, or durante viduitate, for the maintenance and support of herself, her daughter Sally Ann, (one of the plaintiffs,) Elizabeth and Re-' becca, and also of John Pelatreau; and on the death or marriage of his wife, he devised said estates to said John Pelatreau- during his natural life, for the support of himself and the said three girls; and after the death or marriage of his wife, and the death of Pelatreau, he devised all his said landed ’ estates to Sally Ann, Elizabeth and Rebecca, in fee. He gave to his said wife, so long as she should remain single, and to said Pelatreau, after her death, or marriage, power to sell and convey any part of his real estate, provided Aaron Burr should, in writing, signed by his hand, consent; no sale to be valid without such consent; the moneys arising from such sale to he invested under the direction of said Aaron Burr, for the purposes of said yñll■ He appointed his wife executrix, so long as she remained single and unmarried • and declared, that afterwards, said Pelatreau should be his executor.

. In 1826, Medcef the younger being dead, and his will duly proved, said Rachel, the widow of Medcef the younger, with consent of said Aaron Burr, signified by his signing, &c. conveyed the premises in question to James Renwick, in trust, for the defendant Mary C. P. McComb. The deed recited, that said Medcef the elder had, April 1st, 1787, demised the premises in question to M. Wattles for ten years; that Wattles assigned to D. Halsey; that, April 1st, 1789, by articles reciting said lease and assignment, said Medcef the elder covenanted with said Halsey, that if he should pay to said Medcef the elder £1000, with interest at the end of eight years from the date of said articles, then said Medcef the elder, his heirs, &c. should convey in fee simple; that by sundry assignments, Halsey’s interest had become vested in Alexander McComb, Then, after reciting the will of Medcef the elder, the devises to said Joseph and Medcef the younger, the death of said Medcef the elder, the. payment of the £1000, and

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interest, by Alexander McComb to said Joseph, and Joseph’s said deed, in fee, to Alexander McComb, it proceeded further to recite, that all the estate of said Alexander McComb had become vested in said Renwick and M. C. P. McComb, the defendant: that said Joseph died without issue, said Medcef the younger surviving. It also recited parts of the will of said Medcef the younger, and the. said power of sale, and then proceeded thus: “ Now this indenture witnesseth, that the said Rachael Eden, widow, &c. in consideration of $750, &c. to her in hand paid, &c. and by virtue of the power, <fcc. and with the approbation, &c. of the said Aaron Burr, &c. hath granted, bargained, &c. and hereby doth, fee. unto the said Renwick, &c. and all the estate, &c. of the said Medcef the younger,” &c. in fee. Signed and sealed by Rachael Eden and A. Burr.

The plaintiff called one Berrien as a witness, who stated, that the premises in question were, in 1826, worth ,$4000 or $5000.

It was also proved, in the course of the trial that, Elizabeth having previously died without issue, said Rebecca, in 1834, conveyed her interest to the plaintiff, Beniamin Waldron.

The plaintiffs’ counsel insisted at the trial, that the said deed of Rachael Eden was not sufficient to convey a title under the will of said Medcef the younger; that it was not a valid execution of the power therein contained; that, on account of the gross inadequacy of the consideration, and the matter contained in the recitals thereof it was void in law. But the judge decided and charged the jury that, upon the evidence given, the defendant was entitled to a verdict. The plaintiffs’ counsel excepted, and the verdict being for the defendant, the plaintiffs’ counsel now moved for a new trial on a bill of exceptions.

A. L. Jordan, for the plaintiffs.

J. L. Wendell, for the defendant.

It is impossible to say, after reading the recital of the facts in the deed from Rachael Eden to Renwick, that the $750, mentioned as the purchase money, formed the sole consideration of that deed. No one can doubt, that the supposed equitable claim of the defendant, arising out of the covenant by Medcef Eden the elder to convey, and the payment of the purchase money to Joseph Eden, made a part of the consideration. The material question therefore is, whether the power in the will of Medcef Eden the younger has been followed. Several cases were cited on the argument, to show the strictness with which the formal requisites of powers like the present must be followed. These may be laid out of view, except in so far as they can be supposed to bear on the question in principle; for there is no dispute that all formal requisites required by the power have been complied with.

The great objection is, that the power has not been pursued in its spirit, which, it is said, required a 'sale simply for a pecuniary consideration—for moneys, or, at least, their equivalent; inasmuch as the power looks expressly to the whole consideration of the sales being invested for the purposes of the will. That the power intended this, cannot be disguised nor that such intent has been departed from, by the execution of the deed, in part on a different consideration. The power was a naked one. The grantor had no title of her own in trust, or otherwise. It contains substantially a direction to sell for cash, or its equivalent— something which may be invested. It is like a power to demise on the ancient rent: a demise for less, in such case, will be void. There can be no difference between the rule at law or in equity. If a naked power be not pursued, the deed is void. The cases cited on the argument, of deeds from collectors of taxes, are familiar instances. Clarke's Lessee v. Courtney, (5 Peters, 319, 347,) will be found an authority to guide us in the construction of a power like this—i. e. a naked power. There, the sale was held void at law. Taylor v. Galloway, (1 Ham. Ohio R. 232,) in one

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of its branches, is precisely in point, both as to .construction, and the effect of making a grant under a testamentary power of this1 kind, for a consideration different from what was contemplated by the will. The sale was held void in equity. So, a naked statute power to sell for the payment of the debts due from a testator, or intestate, will not warrant any sale, with an object different from the raising of money, and the payment of debts. (Bridgewater v. Brookfield, 3 Cowen, 299.)^[1]

Not only must the forms required by such powers be followed, but their purpose; and if a defect, in either respect, appear on the face of the deed, it is void, not only in equity, but at law also.

A contrary doctrine, applied to cases like the one at bar, would enable persons, having powers of sale under last wills, to sacrifice the rights of devisees, by merely surmising some equitable consideration by way of recital; for, the attempt to establish such a consideration was not here made at the trial, independently of the recitals. Surely the testator never intended that the donee of the power should have authority to bind his estate by recitals, even if she could take actually outstanding claims into the account. But she could not.

If there be any claim by the defendant,- capable of being enforced in a court of chancery, she must go to that tribunal, where her equity may be considered on the proper allegations and proofs.

It is not necessary to say, whether we have power, at law, to notice the question raised on the inadequacy of the pecuniary consideration. We are of opinion that the deed was void for the reasons given, independently of the objection that, in 1826, $750 was grossly inadequate to the real value, as proved by Berrien.

New trial granted.

(a) (a) In respect to the requisites of deeds, given under powers of a public nature, as well as the mode of proving them, see the cases cited in Cowen Hill’s Notes to 1 Pldll. Ev., pp. 868, 1288, et seq.