191 A.D. 610 | N.Y. App. Div. | 1920
This is an action to foreclose a mortgage executed m the year 1895 by the trustee under the will of Eliza D. Hall. She died in the year 1894. The action is defended by one of the remaindermen of the trust estate who has also acquired the rights of the other remaindermen. The ground of the defense is that the trustee had no authority to give the mortgage.
The testatrix devised certain real estate including that subsequently covered by the mortgage herein in trust for the benefit of her son Bray D. Hall (not the defendant) and directed that the premises should be rented by the trustees under her will and the rents thereof applied “ to the payment of the expenses of the trust property, taxes thereon, the neces
In the year 1895 on a petition by the only trustee then acting stating that the real estate was in a dilapidated condition and in need of repairs and that the income from the trust estate was insufficient for the support of the said Bray D. Hall an order was made by the Supreme Court authorizing the mortgage in question covering the same premises which the testatrix by her will provided might be sold by her trustees under the circumstances therein specified. Pursuant to such order said mortgage was executed. Bray D. Hall died in the year 1899 never having had any issue. Under the will title to the real estate vested in another son of the testatrix and two sons of a deceased son. The two latter were infants at the time of the execution of the mortgage and neither they nor the surviving son of the testatrix had notice of the proceeding which resulted in said mortgage. That proceeding was instituted under chapter 886 of the Laws of 1895 amending the Revised Statutes
The statute was amended by chapter 136 of the Laws of 1897.
The subsequent amendment of the statute by chapter 242 of the Laws of 1907
It is now strenuously contended that the power of sale in the will included the power to mortgage. This question as it here presents itself is not an open one. In Potter v. Hodgman (81 App. Div. 233; affd., on opinion below, 178 N. Y. 580), a case which is undistinguishable from the present case, it was held that a mortgage executed under a power of sale was void.
The judgment should be affirmed, with costs.
Judgment unanimously affirmed, with costs.
1 R. S. 730, § 65, as amd.— [Rep.
See Laws of 1886, chap. 257, amdg. 1 R. S. 730, § 65.— [Rep.
Amdg. Real Prop. Law (Gen. Laws, chap. 46; Laws of 1896, chap. 547), §§ 85, 87.—[Rep.
Amdg. Real Prop. Law of 1896, § 87.— [Rep.
Consol. Laws, chap. 50 (Laws of 1909, chap. 52), §§ 105, 107, as amd. by Laws of 1918, chaps. 403, 578.— [Rep.