Page v. Davidson

Caton, C. J. The first six counts in this declaration are in case for cutting down and carrying away trees, and for pulling down buildings, by a tenant, to the injury of the inheritance ; and the seventh count is in trover for converting the trees and the material of the building. The defendant offered to prove that the only right or title the plaintiff had to the premises was that of an executor of the will of Ragland, with a power to lease the premises till the time when this lease would expire, and then to divide or sell the premises and distribute the proceeds as directed by the will. This defense the court refused to admit, but held that the lease alone conferred upon the plaintiff the right to maintain the action. In this the court erred. This action could only be maintained by a reversioner in fee. The proof offered would have shown that there was no reversionary interest in the plaintiff. Indeed, he never had any interest in the premises. His powers were not inherent, but representative. He had a power to lease for a time and afterwards to divide or sell the premises, but that gave him no more right to maintain this action than would a power of attorney executed by a person still in esse conferring the same authority. Had the will devised the land to him, with directions to lease and sell, then he would have taken the fee and might have maintained the action the same as if he had held the title in his own right and not in trust. The will, after vesting in the widow a temporary estate, provides that upon the determination of that estate, and the youngest heir coming of age, the lands should be divided among his children by lot, or sold and the proceeds divided, as his executors should think best. The will then provides that in case the particular estate should terminate before the youngest heir should arrive at age, “ I desire that my executors lease the farm for the support of the family during their minority.” The will contains no words of grant. There is nothing to show an intention to confer any estate upon the executors. The estate descended to the heirs at law with power in the executors to divest it. In executing this lease the executor exhausted the power to lease, for the lease terminated at the same time the youngest heir would attain his majority. This lease did not deprive the tenant of the right to show the true condition of the title, which was perfectly consistent with the right assumed by the plaintiff and acknowledged by the defendant when the lease was executed. This action could only be maintained by the heirs, who held the fee and were entitled to the reversion, subject to be defeated by a sale by the executor. But the executor was not without his remedy for this injury. The defendant had covenanted in the lease not to commit this very sort of waste, and was liable to be sued on this covenant. The defense should have been admitted. We reverse the judgment and remand the cause. Judgment reversed.