Jackson v. Van Dalfsen — 5 Johns. 43

Majority

p. 43

Jackson, ex dem. M’Carty, against Van Dalfsen.

Headnote

Where JL. g¡n-e to Ü. a power of attorney to suvinto lots/a'cevl 3d, an<i to sen the same tor the best price, so that no lot should, sell for a less price than a proportionate shave of 1^200 pounds, lov the whole tract, reserving aright to revoke the same, See. And B. ’’had thp tract surveyed and laid out into lots, and then sold the whole for the consideration of 1,200 pounds to C. who afterwards recouveyed it to H. it seems that this is a good execution of the power, so far, at least, as to vest the legal estate in the grantee, in an action of ejectment by J>. against a stranger in possession of a part of the tract, the defendant cannot avail himself of the objection, that Jj* exceeded, his power 5 or that he was guilty of a breach of trust, in selling the whole land to C*

THIS was an action of ejectment for four lots of , , _ . , . . , r at, m > land, at 6oeymans, m the county or Albany. 1 he cause was tried before Mr. Chief Justice Kent, at the Albany circuit, in October, 180/.

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At the trial, the plaintiff gave in evidence a power of attorney from Andries Ten Eyck, and Peter Ten Eyck, to the lessor, dated the 26th of May, 1796, by which they empowered M'-Carty as follows : “to cause a tract of land at Coeyman’s to be surveyed and laid out into house-lots and streets, and to sell the same for the highest price, and to, the best advantage; and to give and execute sufficient conveyances for the same in fee, to the purchasers thereof ; and to accept of payment therefor, at least one quarter of the purchase-money, in cash, on the execution of such conveyance; the remaining part to be secured by a bond and mortgage, provided the said McCarty shall not sell any lot for a less sum than a proportionate share of 1,200 pounds, for the whole tract, to be apportioned according to situation and quality, reserving to ourselves the right to counteract this power whenever we please, confirming, however, whatever bargain the said M'-Carty may then have completed, which said tract of land, &c. (describing the same,) excepting thereout, a lot where the dwelling-house now stands, and a front opposite thereto in the river; also, excepting two lots, at the place called Ose Kraal, adjoining the said creek ; and excepting one other lot, wherever the said A, Ten Eyck, and P. Ten Eyck choose it, before it shall be disposed of, along the said street of Ose Kraal; all which lots so excepted, the said D. M'-Carty shall have nothing to do with, further than to lay them out regularly with the others,&c.

D. G. Van Antwerp, a witness for the plaintiff, testified that A. and P. Ten Eyck demised the old stone-house at Coeyman’s landing, with the premises in question, to one M. B. Langdon, who took possession thereof, under the demise, several years prior to the possession of the defendant. That the land along the river, including the premises in question, were laid out into five water-1,ots, of the breadth of forty feet each, by McCarty, after

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the power was executed to him; that the lots are adjoining each other, and partly in front of the house, which is fifty feet wide, &c. that McCarty had a map made of the lands comprised in the power, on which the whole was laid out into lots and streets ; that when the power was executed, he understood that the excepted lot, in front of the house, was to be of the breadth of the house, but did not recollect any specific agreement on that subject.

The plaintiff then gave in evidence a release from A, and P. Ten Eyck, by M'-Carty, as their attorney, to D. G, Van Antwerp, dated the 26th of July, 1796, for the whole of the land comprised in the power, for the consideration of 1,200 pounds; and also a reconveyance of the same premises, dated the 30th of July, 1796, from D. G. Van Antwerp to M'-Carty the lessor, for the consideration of 100 pounds.

On being re-examined, D. G. Van Antwerp testified, that the conveyance to him by M'-Carty, was without any actual consideration, paid by him, and for the purpose of transferring the title to the lessor, in consequence of his apprehending that A. and P. Ten Eyck were about to revoke their power to him.

On this evidence, the defendant’s counsel moved for a nonsuit, which was denied by the judge,

M. B, Langdon testified, that while in possession of the lease of the house, &c. under a lease from A. and P. Ten Eyck, he took a lease of the premises from the lessor ; and that a few days afterwards, at the request of the lessor, he gave up the lease, which was destroyed j and the reason assigned was, that if the lease was not given up, the witness might be liable to an action by A* and P. Ten Eyck, and that he remained in possession, under the lease from them, until the end of his term.

The defendant, pursuant to a notice for that purpose, palled on the plaintiff’s counsel to produce the map of the survey, apd allotment of the premises, described in

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the power; but it was not produced ; and under the direction of the judge, the jury found a verdict for the plaintiff.

A motion was made to set aside the verdict, as against law and evidence, and for the misdirection of the judge.

Van Vechten, for the defendant.

The lessor of the plaintiff must make out a good title against the tenant in possession. The conveyance to Van Antwerp was fraudulent and void; and a good title can never be derived from a fraudulent act. The conveyance was in direct contradiction to the power of attorney from A. and P. Ten Eyck, the object of which was to have the land laid out into lots, and the lots separately sold. The power ’ also contained an express right of revocation; and it appears from the testimony of Van Antwerp, that the conveyance of the whole to him, was made to prevent any revocation. A deed originating in fraud is void, and will not support an action of ejectment even against a stranger.^[1] Again, as the plaintiff’s title is under a power, he must show that the power has been strictly pursued, otherwise the title must fail. Strangers were bound to take notice of this power, because it was an essential ingredient in the title. The conveyance to the attorney himself, was contrary to the express object of -the power.

Henry, contra.

The objections to the plaintiff’s title are made by a stranger, having no privity whatever with the persons under whom the lessor claims. If the deed to Van Antrverp was in pursuance of the power, it is valid. If there is a breach of trust in the attorney, this court cannot take cognisance of it. This court looks only to the legal title. The power authorised the lessor to sell by lots ; but so as the whole should bring 1,200 pounds. Now if one person was willing to purchase the-

p. 47

■whole for 1,200 pounds, a sale to him wouldbe within the power. The owners were satisfied, if they obtained that sum. No fraud can be inferred from the fact of a sale of the whole for the sum of 1,200 pounds. The circumstances of the case afford no evidence that A. and P. Ten Eyck xvere defrauded.

delivered the opinion of the court. Whether the conveyance given by MiCarty to Van Ant tverp was absolutely void, appears to be the material question in this case. If it was void, the plaintiff according to his oxvn shoxving would have no title, and, of course, no right to recover, although no privity be shoxvn between the defendant and the Ten Eycks. I do not see hoxv this deed can be said to be void. It is not so upon the face of it; nor does it appear to be made in violation of any statutory provision, or repugnant to any common laxv principles, so as to authorise the court to pronounce it, ipso facto, void. Whether the lessor of the plaintiff xvas chargeable with a breach of trust, in the sale to Van Antwerp, is not an inquiry of xvhich the defendant can avail himself; no privity xvhatever being shown between him and the Ten Eycks. But it is by no means clear, that there xvas even a breach of trust. The general object of the Ten Eycks appears to have been to have the land laid out in _ town-lots, and sold as such. Their agent, hoxvever, was not limited in this respect. The only limitation contained in the power was not to sell any lot for a less price than a proportionate share of 1,200 pounds, for the xvhole tract. The consideration for xvhich the whole tract was sold was 1,200 pounds. And had it been sold in lots it is not pretended but that the authority would have been strictly pursued. But, admitting that the agent exceeded his authority, the principals may have been satisfied xvith the sale, and may have subsequently

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ratified and confirmed it; and it would be going great lengths to permit a stranger to disaffirm it. Although it is a well settled rule in equity, that a trustee, or agent to sell, shall not become himself a purchaser; yet it is not a matter of course for the court of chancery to interfere, and set aside the purchase, as against the agent himself; the purchase shall stand, if the cestui que trust chooses to agree to the sale. (1 Caines’s Cases in Error, 19,20.) The doctrine in equity on this subject shows how improper it would be for a court of law to inter* fere, in the first instance, between the agent and a stranger, and set aside the purchase, as absolutely void.

It was suggested, though not much pressed on the ar* gument, that the power of attorney did not extend to the premises in question ; but that they fell among the excepted lots j the evidence in the case does not appear t® me to warrant this conclusion. At all events, it was a question of location, and if relied upon, ought to have been submitted to the jury. No claim of this kind appears to have been made upon the trial. We are, accordingly, of opinion, that the motion for a new trial must be denied.

Rule refused.