Jackson v. Todd

Elmeb, J. A great many exceptions were taken in the progress of the cause, and are contained in the several bills of exceptions, many of which are clearly frivolous, and serve only to complicate and obscure the case. I shall not undertake to go through them, but shall content myself with noticing one subject, embraced in several exceptions, „which must, in my opinion, decide the cause, and which, therefore, renders it unnecessary to notice the others. The action was in trespass, for breaking and entering' a certain mill of plaintiffs, and breaking down and removing from it certain shafting and gearing, fastened and attached to the floor, walls, and ceilings. The declaration .contained several counts, to which there was a plea of not guilty, and pleas of freehold in the defendants, and of property in the shafting and gearing, upon which issues were taken. After proving that the mill and other property belonged to one Daniel Holsman, who died seized of it, leaving Catharine Holsman, his widow; Daniel Hols-man, Maria Holsman, Eliza B. Holsman, and Julia Hols-man, infants under the age of twenty-one, and Catharine Ann, who intermarried with Clement B. Barclay, and Margaretta, who intermarried with James Barclay, his children and heirs, plaintiffs offered in evidence a deed for said property, purporting to be made by said Catharine Holsman, as widow and as guardian of the infant heirs, by virtue of an order of the chancellor, and by the two Barclays and their wives, to the plaintiffs, bearing date November 1, 1850, before the acts complained of were committed. It appeared that Mrs. Holsman was the guardian of the said infants, appointed by the Orphans Court, bxit no order of the chancellor recited in the deed, or other authority to sell the interest of the infants, was [123] produced. To the reception of this deed, defendants’ counsel objected, on the ground that no authority from the chancellor to sell was shown. But the deed was admitted, and a bill of exceptions sealed. It does not appear by this hill whether it was received as a valid conveyance of the infants’ right to the property or not, and had nothing appeared to show that it was relied on as sufficient evidence of the title, and as evidence of the possession of the whole interest in the property, inasmuch as it was clearly admissible as a valid conveyance of those who were of age, there would, perhaps, have been no error. • But it further appears that the judge charged the jury, “that if the plaintiffs had no interest there beyond a nalsed possession, tbe amount of their recovery should be graduated by one scale, if their possession was coupled with an interest in the estate, real and personal, or either, it should be graduated by another scale. The present plaintiffs claim to have been there in possession through Mr. Barclay, atid that they were the owners of the soil and mill and property, and also of the shafting and gearing. A deed and bill of sale or confirmation have been offered in evidence to show the rights of the plaintiffs. The two seem to carry out what Mr. Barclay and Mr. Pennington have testified was the contract of sale. The possession of the property alleged to be conveyed by these papers has passed from the representatives of the estate to the plaintiffs. Neither the grantors, nor any party claiming under them, have impugned that title, and it is sufficient for this case to say, that a stranger to the transaction, without estate in or claim of property, cannot step forward, either as a friend of the orphan children, or as a protector of the rights of the administratrix, or as a champion for creditors, and by objection, without assailing proof, lawfully impeach that sale, or the prima facie evidence to be drawn from the instruments of writing which tend to establish it.”. [124] This part of the charge was excepted to, and the judge was requested, on the part of the defendants to charge that, as to the real estate, there is no evidence of the title to four sixths thereof, being the portions of the children who wore mmol’s at the time of the execution of the deed to plaintiffs, having been transferred to the plaintiffs, the plaintiffs’ deed for the same being inoperative and void as to such four fifths part thereof ” ; but the judge refused so to charge, and his refusal was excepted to. It thus appears,- as well by what the judge did charge as by what he refused to charge, that the deed was received and submitted to the jury as evidence of title in the plaintiffs to the whole of the property purporting to be therein conveyed. In this there was, in my opinion, error. The guardian had no right to sell or make a deed for the property of her wards without an older of the Orphans Court or the chancellor ; and a deed made by virtue of such an order cannot legally be given in evidence without producing the authority. A guardian is entitled to the possession of his ward’s land, and may transfer that possession or lease the land without any order, but he can convey no title to the freehold, otherwise than as the statutes authorize. The deed received purported to be made by virtue of an order of the chancellor, which is authorized by the act of 1845 (Rev. Stat. 550). The sale is required, by that act, to be reported to and approved by the chancellor before a conveyance shall be executed; so that the special authority to sell.is just as necessary to be shown -as in the case of a sale by an executor or a sheriff. A deed made by one having no title by virtue of a naked power, is inoperative and void, unless made in pursuance of the power, and the power must be shown. Den v. Lambert, 1 Green 182; Den v. Despreauce, 7 Halst. 182; Den v. Philhower and Sowers, Court of Errors, June T. 1854. The effort, on the part of the plaintiffs’ counsel, was to get rid of this difficulty, by insisting that, as possession [125] was shown to have been delivered by authority of the guardian to the plaintiffs, and as possession without a title would have been sufficient to enable them to maintain trespass against wrongdoers, the admission of the deed was not an error so affecting the merits of tire case as to justify a reversal for that reason. But the question of possession was in controversy, and the deed was submitted to the jury as evidence on that point; and not only so, but they were correctly told, that if plaintiffs’ possession was coupled with an interest in the estate, real and personal, or In either, their recovery would be graduated accordingly. If tbe title to four sixths of the pro perty remained in the infants, the plaintiffs, as mere possessors, were not entitled to damages to the full value of tho property injured. As owners of the reversion, the infants were entitled to an action for the injury done to the property of a permanent nature amounting to waste, from which no act of the guardian precluded them. 2 Sound. 252 n. 7 ; Potts v. Clarke, Spenc. 536. There was, therefore, material error in the ruling of tho court, for which the judgment must be reversed. 1J atetes, J., concurred.