Benedict v. Morse

Hubbard, J. The premises of Avhich the plaintiffs seek possession were a part of the land conveyed by Caleb Burbank to Amasa Wood, John Jacobs and Abraham G. Randall, in trust to be sold for the benefit of his creditors, under a deed of assignment for that purpose. Prior to the sale to the plaintiffs, Jacobs, one of the trustees, died. Afterwards, the survivors made the conveyance to Merrick, who on the same day conveyed an undivided moiety to Benedict. The defendant contends that the poAver of the surviving trustees to sell ceased upon the death of Jacobs, and that, in consequence of it, the deed to Merrick was void. The argument in support of this exception is, that the trustees took no estate which they were to hold ; that they had but a naked power to sell, not coupled with an interest; that they were the mere conduits through which the estate was to pass; the object being not to give them the land, but to enable them to sell it and receive and distribute the proceeds. And it is further argued, that if the power was not terminated by the death of Jacobs, yet, as the words “ survivors and survivor ” are not contained in the deed, the terms “ heirs and assigns,” as used in it, created a tenancy in common, and therefore the heirs of Jacobs must join in a conveyance, in order to pass the estate. It is perfectly well settled, that a power to convey land, not coupled with an interest, terminates as well with the death of the party receiving it, as with that of the constituent ; and the reason given is, that it is a bare power, collateral to the land to be granted, and not coupled with it — a mere personal confidence, revocable at pleasure, and absolutely revoked by death. But where an estate or interest in the land is conveyed to the person, coupled with the power, he is not a mere stranger to the land, but the power and the interest are connected, and they do not die with the person ; [228] but the estate itself passes and supports the power, which is not a mere personal confidence. Co. Lit. 342 b, and Butler’s note (298.) Bergen v. Bennett, 1 Caines Cas. in Er. 15. In the present case, the estate was conveyed in trust for the payment of debts. The fee was vested in the trustees, to give them the legal estate, so that they could dispose of the whole property, for the benefit of the cestuis que trust. The right of possession followed the grant, and the incidents of possession also vested in them, to wit, the right to lease the estate, while unsold, and to receive the rents and profits. This then was not a bare naked power to the trustees to sell, but a grant of the estate, to enable them to hold as well as to sell, defeasible only by the payment of the debts' of Burbank, by himself or by the proceeds of other property in their hands, before a sale of the estate ; and a bona fide sale by the trustees, during the existence of the trust, would bind all persons, parties or privies to the conveyance to them. The question whether the conveyance was to the trustees as joint tenants or as tenants in common, it is not necessary here to decide, because, quácunque via data, the defendant cannot avail himself of the legal difference between the two estates. If the trustees were joint tenants, then the survivors passed the whole estate by their deed to Merrick; and if they were only tenants in common, their deed, though purporting to convey the whole estate, would be good as to two undivided third parts, and the purchasers would become tenants in common with the heirs of the third trustee, and entering into possession, their title would be good to the whole estate, so far as strangers to the title were concerned. And this title to possession of the whole could not be controverted by the present defendant, who occupied the premises under the two trustees, as their tenant, and who has set up no claim, after the sale, as derived from the heirs of Jacobs. The remaining question is — admitting the plaintiffs’ title — whether the defendant was tenant at will of the estate occupied by him, and, as such, entitled to three months’ notice [229] to quit, before this process could be legally commenced. The facts, as stated in the bill of exceptions, are not presented with much perspicuity ; but we gather from them that the defendant was on the premises now demanded, at the time of the conveyance by the two surviving trustees to Merrick, having previously paid Randall, who acted as agent, rent to about $26 for three or six months. There is no evidence of the existence of any lease, or of the bargain as to the use and occupation. We therefore consider the defendant’s relation to the trustees, from the facts thus presented, to be ■ that of a tenant at will. The conveyances by Randall and Wood to Merrick, and by Merrick to Benedict, were made March 22d 1844; and on the 6th of April following this process was commenced. Some days previously to this, (it does not appear how many, but, as is agreed, within three months,) written notice was given to the tenant to quit. It is very clear that, if he remained a tenant at will after the sale, the notice was insufficient; because the statute requires three "months’ notice to be given to determine an estate at will, where there has been no neglect or refusal to pay rent; and none is proved in this case. Rev. Sts. c. 60, § 26. But we are of opinion that, by the sale to Merrick, the estate at will was determined. Such an estate is uncertain and defeasible, and is destroyed by the alienation of either party. Co. Lit. 55 b. 57 a. Jackson v. Aldrich, 13 Johns. 109. Dinsdale v. Iles, 2 Lev. 88. And the tenant, in case of an alienation by the owner of the estate, becomes a m’ere tenant by sufferance; for the estate at will is terminated by its own legal limitation ; it not being the subject of alienation. But it is unnecessary to enlarge on the nature of these two estates, because we are of opinion that the case now presented is decided by those of Kinsley v. Ames, 2 Met. 29y and Hollis v. Pool, 3 Met. 350. In the first of these cases, the defendant had conveyed the estate in mortgage, with a power to sell. This power was exercised, and the plaintifl was the assignee of the purchaser, and gave the defendant notice to quit immediately after his purchase ; and within [230] three months he attempted to take possession of the house, but the defendant violently resisted the attempt. The court held that whether his holding was unlawful or not, depended on the question whether he was entitled to notice to quit; and they were of opinion that, after the sale, he was a mere tenant at sufferance, and as such was not entitled to notice ; and the decision is placed, not on the forcible resistance, but on the nature of the estate; it being a tenancy at sufferance, in consequence of the alienation. In the case of Hollis v. Pool, the lessee, who agreed to pay his rent quarterly, also agreed to quit if the premises should be sold. A sale took place, of which the vendor gave notice to the lessee, who refused to quit, and this process was commenced by the purchaser, immediately after; and the court held that, by force of the sale, the defendant became a tenant at sufferance, and was liable to the process without notice to quit, and affirmed the decision in Ames v. Kinsley. The present case, in our opinion, is not distinguishable in principle from the above. Here was a tenancy at will, which by force of the sale has been determined, and the defendant is but a tenant at sufferance. He is therefore subject to the process given by the Rev. Sts. c. 104, <§>>§, 2, 4, respecting forcible entry and detainer; tenants by sufferance not being entitled to notice under any of the provisions of that chapter—the St. of 1825, c. 89, § 4, on that subject, having been repealed by the Rev. Sts. c. 60, *§> 26, for the purpose of making a difference between tenants at will and tenants at sufferance, in respect to notice. See the notes of the commissioners in relation to the two estates. Exceptions overruled.