Hathaway v. St. John

20 Conn. 343 | Conn. | 1850

Ellsworth, J.

Upon the merits of this case, the defendants have chiefly urged the insufficiency of the power of attorney given by the plaintiff to Remick K. Clark. They insist, that if this is insufficient, no title passed to the plaintiff', by the sale of Hart. We do not think that the sufficiency of this power of attorney is necessarily involved in our decision.

The defendants claim, as the creditors of Clark. We are satisfied, that Clark never had any title in himself, and, of course, they did not acquire any from him. It is true, they may require the plaintiff to show his title, though they had none themselves; and this, we think, is fully done, certainly -as to them.

It appears, that the property in question, all of it, is the avails of certain bank stock, once the property of Mrs. Clark, and by her transferred, before her marriage, to the plaintiff, her trustee. This stock was sold, at her request, and vested in real estate in Brooklyn, This again was first mortgaged, and then sold, to secure and pay for the properly in controversy, These transactions were all bona fide; and ail parties supposed the power of attorney was legal and sufficient. It appears, that when the land was sold and conveyed, Mr. Hart was paid out of the purchase money, by general agreement ; and. as this was her proper estate, and held exclusively for her benefit, she could direct as to the application of the money. She had, in equity, full capacity to act as a feme-sole over the property.

It further appears, that Mrs. Clark and her trustee, received into their possession, and for a considerable time enjoyed, the property, in Suffield, until it was attached by the defendants ; and although, on that day, it was in the possession of Mr. Clark, in Meriden, this does not essentially vary the effect of their possessory right.

Upon these facts, it is difficult to perceive how the defendants can question the right of the plaintiff. Mrs. Clark purchased and received the property, with the consent and approbation of her trustee. It is true, Mr. Clark was the agent, or supposed agent. The power of attorney was intended to be sufficient, and it was bona fide. Why- should these creditors object ? If the trustee had not, in the first instance, a good title, he has ratified the purchase, by receiving the property, or permitting Mrs. Clark to receive it; and he is now demanding it, and endeavouring to recover it. What can be a more complete ratification, if necessary, of the agency of Clark ? Besides, if it were necessary, the law would imply such assent, rather than that Mrs. Clark should suffer the loss of her own property. The plaintiff was created trustee for the very' purpose of protecting her title ; and his name may, with the highest propriety, be used for that parpóse. We do not cite authorities to these familiar principles.

The motion in arrest, we hold to be sufficient, so far as it respects Way, the officer. In Bowen v, Hutchins, 18 Conn. R. 550. it was decided, that an officer serving process, can not be sued in the action of replevin. Nor is it true, that by pleading to the merits, the objection is waived. The objection appears on the very face of the writ; he cannot be subjected ; and a waiver always proceeds upon the idea that there is substantially enough to give a cause of action.

But as the objection is apparent, the defendant should have demurred, and not put the plaintiff to the expense of a trial on the merits. He is entitled to judgment, but can have no costs.

We do not advise a new trial.

In this opinion the other Judges concurred.

New trial not to be granted.