Moran v. James

20 Misc. 235, 45 N.Y.S. 537

• Court: New York Supreme Court
• Decided: May 15, 1897
• Status: Published

Opinion

Gaynor, J.

The County Court had no jurisdiction over the real estate of the infant, except that conferred by the statute. Ellwood v. Northrup, 106 N. Y. 172. It was limited to the proceeding to sell or mortgage. Code Civ. Pro., § 2348. In the law of principal and agent, authority to sell does not imply authority to exchange. This so accords with common understanding that it is difficult to find that a case has arisen about it. McMichael v. Wilkie, 18 Ont. App. R. 464. The same is the case with the law of powers and trusts. A power of sale in a will or trust deed does not authorize an exchange or a'mortgage. Perry on Trusts, § 769; Chaplin on Express Trusts and Powers, § 627; Bloomer v. Waldron, 3 Hill, 361; Coutant v. Servoss, 3 Barb. 128; Albany F. Ins. Co. v. Day, 4 N. Y. 9; Russell v. Russell, 36 N. Y. 581; Woerz v. Rademacher, 120 N. Y. 69. I do not see how any different construction can apply to this statute. Apart from the meaning of the word sale, the provisions for the disposition of the proceeds exclude the idea of an exchange.

The petition to the County Court conferred no jurisdiction upon it, and the proceedings and all done under it are void. This action cannot be maintained upon the void bond and mortgage.

Judgment for the infant defendant.