Black v. Erwin

16 S.C.L. 411

Opinion

The opinion of the court was delivered by

Mr. Justice Johnson.

Admitting that an executor may legally constitute an attorney to sell the }ands of his testator, it .may well be doubted Whether a general authority to his agent, in his individual character, without reference to his representative character as executor, would confer such a power. But that an executor cannot act in such a case by attorney, is too clear to admit of doubt.

Clendinen and Hill, for motion. Williams, contra.

The general rule is, that if a man have a bare authority, coupled with a trust, he cannot act by attorney; for this being a trust and confidence reposed in him, he cannot transfer it to another; 9 Rep. 75; 6 Roll. Abr. 330, cited in 1 Livermore on Agency, 29; and the very case under consideration is put by way of, illustration.

Under the act of the legislature,, a majority of the executors are authorized to convey lands, directed to be sold by the will of the testator. But in this case, there were bat two, and it follows that to convey the title both must^ join in ike deed. The motion refused.

Colcock, Gantt, and Richardson, Justices, concurred.