Ramsey v. Wandell

Leaened, P. J.: The first point made by defendants is that the complaint does not show that the grantees did not receive all the land they were entitled founder the contract. There is a sufficient allegation,'however, upon that point, whatever the proof may turn out to be. There is' an allegation that a portion of the premises was not free from incumbrance, but was subject to a certain mortgage set forth. This must be good .on demurrer' so far as this point is concerned. Second. It is urged that there is no allegation showing that Hendee and Gregory had power to bind Smith’s estate by a contract to convey with covenants. The only allegation in the complaint is ' [484] that the executors were authorized to sell and convey. We may infer that there was no expressed power to make any covenant», otherwise it would have been set forth by the pleader. The plaintiff, in reply, urges that the allegation in the complaint that the executors made the contract by virtue of the power given them in the will, is a sufficient allegation that the will contained an express power to make the covenants. We do not think this is a fair inference from the pleadings. The allegations that the act was done by virtue of the power is, after all, but little more than a legal conclusion. If the executors, being empowered to sell real estate, did sell, then it follows that they sold, so far as they could, by virtue of the power. The question whether the will authorized the covenants in the contract depends on the authority in the will, as it is averred in the complaint. Then the question comes up, whether a power given by a will to executors to sell and convey real estate authorizes them to contract to convey with covenants. Several cases are cited by the plaintiff’s counsel in support of plaintiff’s views, which may be briefly mentioned. (Le Roy v. Beard, 8 How. [U. S.], 451.) A case from Wisconsin, where there was a general power to an agent to act as sufficiently as if the principal were present. The principal had acquiesced in the act of the agent by not objecting, and he was held bound by a covenant. (Bronson v. Coffin, 118 Mass., 156.) An agent had power to do-all matters and things relating to the premises as fully, amply and effectually as the principal might. The court said: “ A naked power to sell land may not give the attorney power to bind the principal by any covenants. But the power in this case is broader than a mere power to sell.” Nothing is decided on this point in Warden v. Richards (11 Gray, 277); Peters v. Farnsworth (15 Vt., 155). An agent had power to make contracts, agreements, conveyances and assurances, and the principal was held liable on the covenant. Without going over these cases at greater length, it will be seen that they all arise between principal and agent. None of them touch the question of a power given by will to executors. The executors are .in no sense the agents of the deceased. There is no principal [485] to be bound by their acts. The question is whether, by their contract, they can impose a burden on the creditors, distributees or legatees of the deceased. It is elementary that a power is to be construed strictly. A power over land must be governed by article 3, 1 Revised Statutes, m. p. 732. A power to sell and convey does not necessarily require for its execution a power to insert covenants in a deed. For in this State no covenant is implied. (1 R. S., m. p. 738, § 140.) Therefore there can be a conveyance without any covenant, either express or implied. Hence the executors could execute all the power given to them, without agreeing expressly or impliedly, that the land was free from incumbrance. Therefore the power is not to be enlarged by construction, so as to give them such authority. Again the rule is that contracts made by executors do not bind the estate. (Ferrin v. Myrick, 41 N. Y., 315; Austin v. Munro, 47 N. Y., 360.) At page 366, it is said executors “ may not bind the estate by an executory contract, and thus create a liability not founded upon a contract or obligation of the testator.” The plaintiff urges next that the real estate was converted into personal property. ¥e are not informed by the complaint that there is anything in the will directing the land to be sold, or showing an intention that it should be sold. The complaint only alleges a power to sell in the discretion of the executors. For what purpose does not appear. There is still another difficulty. The plaintiff is only the grantee in the deed from Ham. There is no covenant in any' deed under which she claims. If there is any liability of any one, (other than Hendee and Gregory personally,) upon the contract, and if that liability has not been lost by the acceptance of the deeds, then she does not connect herself with that contract. It was made with Oliver, and by him was assigned to Sager and'Ramsey. She avers no assignment of the contract to her. The judgment should be reversed, with costs, and judgment given for the defendants on the demurrer, with costs, with leave to plaintiff in twenty days after notice to amend her complaint on payment of costs. Present — Leatined, P. J.; Boches and BoardmaN, JJ. [486] Judgment reversed, with costs, and judgment for defendants on demurrer, with costs, with leave to plaintiff in twenty days after notice to amend complaint on payment of costs.