Collins v. Hopkins

7 Iowa 463 | Iowa | 1859

"Woodward, J.

Eor the principal questions in the case, reference is made to the case of Fanning v. Kerr, ante, 450. In this, it is objected that the administrator cannot make the sale. It is not stated explicitly when Hopkins, the principal, deceased, but it is inferred that this took place before the advertisement of sale, for the administrator answers that he made the advertisement; and yet the action is against Hopkins himself, and the administrator is afterward substituted. But however this may be, no valid objection exists on this account. This being a power coupled with an interest, the administrator is authorized to carry it into effect. The .power is irrevocable, and does not cease with the death. 1 Hilliard on Mort., ch. 7, 128; Bergen v. Bennett, 1 Caines, Cas.; 1 Adams Eq., 121; Doolittle v. Lewis, 7 Johns., ch. 48. The instrument in this case expressly provides that Hopkins, his administrator, or assigns, may; without suit, or foreclosure, in the district, or other court, proceed to sell.

The case, and the subject matter of it, are neither of them in a position to call upon the court for a disposition of any question touching the interest. Nor do the counsel, in their arguments, seem to regard it as in a condition for adjudication. The decree of the district court is reversed, and the injunction is dissolved.