47 N.Y.S. 486 | N.Y. App. Div. | 1897
The action was brought to foreclose a.mortgage made upon certain premises situate in the city.of Brooklyn and here designated as the Degraw street property. The mortgage was made by the defendants Albert E. Janies and Edward R. James, and by Albert E. James as special guardian of the defendant, Nina E. James, an infant, to secure the payment of a bond executed in like manner by. and on behalf of the defendants. This bond and mortgage were so' made to secure the payment of the amount which the defendants undertook to pay to Lester and Alphonse Van'Ness in the exchange with them of certain premises situate in that city and designated as . the Herkimer street property, together with $100 in addition to the amount which the defendants James undertook to pay as the difference in such exchange. The infant defendant, Nina E. James, had title to an undivided third part of the Herkimer street property as tenant in common with the other defendants James. In contemplation of exchanging that property with the Messrs'. Van Ness for the Degraw street property and paying them $1,000 as the difference in the estimated value, proceedings were instituted in the County Court of Kings county by petition'to obtain leave for the infant defendant, Nina E. James, by special guardian to unite with the other defendants James in making the conveyance and exchange of their Herkimer street property for the Degraw. street property, and in the bond secured by mortgage upon the latter for the amount of such difference; also to join with them in the mortgage. The proceeding resulted in such leave and its execution in behalf of the infant defendant by her special guardian appointed by the court. The consummation of the transaction was there confirmed, and was effectual if it was within the power of the County Court-to grant the leave sought and obtained in such proceeding.
. The view of the trial court was that the County Court exceeded its power in granting it. In that conclusion we think the trial court was fight. The County Court had no power in the matter, other than that given by the statute.. (Rogers v. Dill, 6 Hill, 415; Ellwood v. Northrup, 106 N. Y. 172.)
It is true that the statute does not in terms limit the nature of the consideration for which the sale of the real estate of an infant may be made. But while a conveyance made in consideration of the grant-of other property is in the general sense a sale, it is not simply such; it is rather- an exchange of properties, and in common parlance is so understood. Such a disposition of land does not come within a naked power of sale granted to a donee who takes and holds it in the fiduciary relation as such. (2 Perry on Trusts, § 769; Waldron v. McComb, 1 Hill, 111; S. C., 7 id. 335; Russell v. Russell, 36 N. Y. 581; Woerz v. Rademacher, 120 id. 62, 69.) The contemplated ■ execution of such a power is that the sale be made for cash or its equivalent, that the proceeds may be invested. And so strictly is the power so granted construed that no authority to mortgage will be implied in the grant of an unqualified power of sale. (Bloomer v. Waldron, 3 Hill, 361; Coutant v. Servoss, 3 Barb. 128; Albany Fire Ins. Co. v. Bay, 4 N. Y. 9.) This recognized view of the construction and effect of such a power of sale .is founded upon sound reason.. The execution of it required is on a. conservative basis, while a broader construction of a power of sale, permitting an exchange of other property, would be speculative and subject the execution of it to hazards not consistent with its legitimate purpose. - The same reason is applicable to the construction and import of the power to sell the real estate of infants.
Our attention is called to the statute as it existed for sixty-five years prior to 1880, and provided for “the sale or disposition” of the property of infants. (2 R. S. 194, § 170.) And it is urged that no change in the import of the statute by the modified language was contemplated. It is true that a mere change of phraseology in the revision of a statute will not work an alteration in the law as previously declared unless it clearly .appears that such was the legislative intent. (Matter of Brown, 21 Wend. 316; Jenkins v. Fahey, 73 N. Y. 355, 361.)
The application of that rule to the statute in question does not necessarily support the construction contended for. No case is cited
I think it can be so done by a modification of the judgment so that,, instead of the dismissal of the complaint as to her, it direct that the entire estate so conveyed by the defendants’ grantors be sold without prejudice to the right of the defendant Nina E. James to assert the invalidity of the conveyance made of her estate in the Herkimer street property, and also expressly declare that the bond mentioned in the complaint, as against her, is void.
And the judgment should be modified accordingly.
All concurred.
Judgment modified as directed in the opinion, and order to be settled.