Hyperlawhypertext legal database Moran v. James 45 N.Y.S. 537

← Cases

Moran v. James

45 N.Y.S. 537 Court N.Y. Sup. Ct. Decision date 1897-05-17 English

Delivered by GAYNOR, J.

Contents

Majority

p. 537
(20 Misc. Rep. 235.)
MORAN v. JAMES et al.
(Supreme Court, Special Term, Kings County.
May 17, 1897.)

Headnote

Infants—Exchange of Lands.
Code Civ. Proc. § 2348, authorizing the sale or mortgage of an infant’s land, does not authorize an exchange; and therefore a mortgage on land taken by an infant in exchange, executed as part of the transaction, is invalid.
Action by John J. Horan against Nina E. James and others. Judgment for defendant Nina E. James.
Action to foreclose a' mortgage. It was given by the infant defendant, Nina B. James, by her special guardian, in a proceeding in the Kings county court for the exchange of the said infant’s real estate for other real estate. The petition specified the properties and their values, and prayed that the exchange be allowed, and that the infant should through her special guardian give her bond, secured by her mortgage upon the property to be conveyed to her in the exchange, for the alleged difference in the values of the lands. The different steps as in a proceeding to sell were duly taken.
E. J. Dooley, for plaintiff.
E. D. Benedict, for infant defendant.

The county court had no jurisdiction over the real estate of the infant, except that conferred by the statute. Ellwood v. Northrup, 106 N. Y. 172 , 12 N. E. 590 . It was limited to a proceeding to sell or mortgage. Code Civ. Proc., § 2348. In the law. of principal and agent, authority to sell does not imply authority to exchange. This so accords with common understanding that it is difficult to find that a case has arisen about it. McMichael v. Wilkie, 18 Ont. App. 464. The same is the case with the law of powers and trusts. A power of sale in a will or trust deed does not authorize an exchange or a mortgage. Perry, Trusts, § 769; Chaplin, Express Trusts & Powers, § 627; Bloomer v. Waldron, 3 Hill, 361 ; Coutant v. Servoss, 3 Barb. 128 ; Insurance Co. v. Bay, 4 N. Y. 9 ; Russell v. Russell, 36 N. Y. 581 ; Woerz v. Rademacher, 120 N. Y. 69 , 23 N. E. 1113 . I do not see how any different construction can apply to this statute. Apart from the meaning of the word “sale,” the provisions for the disposition of the proceeds exclude the idea of an exchange. The petition to the county court conferred no jurisdiction upon it, and the proceeding and all done under it are void. This action cannot be maintained upon the void bond and mortgage.

Judgment for the infant defendant.

Cases cited