2 Wend. 487 | N.Y. Sup. Ct. | 1829
The points arising in this " case, and necessary to be discussed, are the following : 1. Did the power from De Peyster to Cooper authorize the execution of the lease to Dickinson] 2. Did the plaintiff shew prima facie that the defendant was in possession as the assignee of Dickinson ] 3. Is payment to be presumed from lapse of time] 4. Was the evidence of the death of Dickinson properly admitted, and what is the effect of such proof 1 Another question was agitated on the trial, which should be noticed, viz. whether the lease conveyed an estate in fee or for life only] The grantor. “ doth demise, grant and to farm let to the party of the second part, (Joseph Dickinson,) his executors, administrators and assigns, all,” &c. “ to have and to hold the said farm, piece or parcel of land, with all the appurtenances unto the said party of the second part, his executors, admin
1. The power from De Peyster to Cooper bears date the 22d May, 1794, and recites that the land is too far distant from him to explore, examine, sell or settle, and therefore he appointed Cooper his attorney to bargain, sell, convey and assure the same, or any part thereof, to any one inclined to purchase. It is no doubt true that every power must be strictly pursued, and the attorney cannot exceed the powers delegated to him; (5 Johns. R. 58; 7 id. 390;) yet it is a good execution of a power if it pursue the intent and design, though not according to the direct terms of it. (Sugden on Powers, 446, 9.) It has been held that a power to give includes a power to sell, as does also a power to charge, (6 Vesey, 793,) and that a power to sell implies a power to mortgage, which is a conditional sale. (3 P. Wms. 9.) By analogy, a power to make an absolute sale implies a power to make a conditional sale, as was done here ; and, as omne majus in se continet minus, it seems to follow that a power to sell gives the attorney power to convey any lesser estate. In my opinion, therefore, the lease and contract in this case were well executed under the power.
2. The plaintiff succeeded in shewing a lease to Dickinson. He also proved the reversion in himself; but before he could recover against the present defendant, he must shew him to be assignee, as he is liable, if at all, upon the privity of estate. It appears that Dickinson took possession under the lease to him; and that for more than 20 years before the trial, the defendant was in possession of one half of the lot leased to Dickinson. This was prima facie sufficient to shew the defendant assignee. (2 Phil. Ev. 89.) But the defendant is left at liberty to shew that he is not assignee, but only under-tenant, &c. The issue joined upon the fourth pleats, whether the defendant is assignee. The plaintiff has shewn
4. Evidence of the death of Dickinson was objected to on the ground that by the pleadings it was admitted he is living. I find no such admission, nor do I see how the defendant is to be deprived of the benefit of this testimony. The defendant is sued as assignee of a lease ; under the proper plea, he might shew, if he could, that such lease never had an existence. So, also, is he at liberty to shew that he cannot be assignee of the lease declared on, because the lease has expired ; that the estate granted by it is at an end ; and when the defendant entered, the land had reverted to the owner of the reversion, and there was nothing left to assign. The defendant has not shewn how he entered, or under what title ; but he has shewn enough, in my judgment, to rebut the presumption of his having entered as assignee of Dickinson.
If my conclusion on this point is correct, there is an end of this cause. But if the defendant is to be considered assignee, another question arises, to wit, whether, from the lapse of time, payment is not to be presumed of the purchase money. I should think not. There was no obligation to pay any thing but the rent. It was a condition of the contract, that upon payment of a certain sum within ten years, the lessee or assignee was to receive a deed; and before that part of the contract can be enforced, it must shewn affirmatively that payment was made, or tendered and refused, and then the remedy is in chancery. With that part of the con-' tract, we have nothing to do. But upon the ground that the estate was at an end before the defendant entered into possession, it seems to me impossible to say that the defendant was assignee of Dickinson.
I am therefore of opinion that the defendant was entitled to judgment.
