Mb.' Justice Peckham,
after making the foregoing statement of facts, delivered the opinion of the court.
It is quite plain that a lease containing a covenant to renew at its expiration with similar covenants, terms and conditions contained in the original lease is fully-carried out by one renewal without the insertion of another covenant to renew. Otherwise a perpetuity is provided for.
Piggot
v.
Mason,
(1829) 1 Paige’s Ch. 412;
Carr
v. Ellison, (1838) 20 Wend. 178;
Syms
v. Mayor, (1887) 105 N. Y. 153;
Cunningham
v.
Pattee,
(1868) 99 Massachusetts, 248; Taylor’s Landlord & Tenant, 8th ed. §§ 333, 334.
From the ordinary covenant to renew, a perpetuity will not be regarded as created. There must be some peculiar and plain language before it will be assumed that the parties intended to create it.
There is no question of the validity of the lease of 1888. It was for five years from the first of August of the year 1887, with a covenant of renewal, and that covenant would have been satisfied by giving a lease in 1892 for five years, up to August, 1897, without any covenant therein for a further renewal. In fact, however, the lease was not legally renewed in 1892, because the paper of that year was signed by one trustee only. In our opinion his signature did not make a valid lease. It required the signatures of all the- trustees. A deed of land executed by one trustee does not convey his share as in the case of ordinary joint tenants. So where a deed of land was executed by two out of three trustees, the burden is upon the purchaser to prove the third trustee was dead. 1 Perry on Trusts, (2d ed.), sec. 411; 2 Perry on Trusts, secs. 499, 502; 2 Story Eq. Juris. (12th ed.) sec. 1280;
Brennan
v. Willson, 71 N. Y. 502-507.
The authorities cited by the counsel for the company, to the effect that one of several trustees may, when so authorized by his associates, act with regard to the execution of some portions of the trust, as their agent, and that when not previously so authorized a subsequent ratification of his act by his associates may bind them all, do not embrace the facts in this case. There is no evidence of any authority to one trustee to sign a lease. The granting of a lease was an important and material act in the way of carrying out the trust under the will, requiring an exercise of the judgment and discretion of all the trustees. It was therefore necessary for them all to act in order to make a valid instrument.
That one of several trustees can be entrusted by his associates with the transaction of the business x>f the trust may be, under certain circumstances, conceded, but those circumstances will not justify the doing of an act by one trustee on
his own responsibility which is of a nature to require the de- > liberate discretion and j udgment of all the'trustees. ’ ;In the case of a-lease bf-property, such üs"is presented herein; the signatures of all are necessary to the validity of the paper.
The case cited of
Insurance Company
v.
Chase, 5
Wall. 509, relates ot an usurance effected bt one of several trustees, and the question was whether the poslicy covered the individual interest of the person taking out the insurance or his interest as trustee; if the former, it was void because he had no interest as an individual, and the policy was therefore one in the nature of wager. The court in the course of the opinion remarked:
"It is true, that in the administration of the trust, where there is more than one trustee, all must concur, but the entire body can direct one of thier number to transact business, which it may be inconvenient for the others to perform, and the acts of the one thus authorized, are the acts of all, and binding on all. The trustee thus acting is to be considered the agent of all the trusteesm and not as an individual trustee. If, within the scope of his agenct, he procures an insurance, it is for the other trustees, and not as an individual trsutee. Id, within authority, sitll it is a valid contract, which the underwriter cannot dispute, if his co-trustees subsequently ratify it. In fact, so liberal is the rule on this subject, that where a part owner of property effects an insurance for himself and others, without previous authority, the act is sufficiently ratified, where suit is brought on the policy in their names."
The facts in this casé do not bring if "within the principle mentioned, and-it’ is clear that to’ rénder thé léase originality valid it must -have been sighed by ail the trustees: 'Without it the instrument as a lease for five yeárs was void under the statute ofiirauds: Comp. Stat. D. C. 231, sec. 4.
It is Contended that the act of one of the trustees'in signing the leasé'was subsequently ratified by the other by a recognition of' its existence by- long continued silence,'if not by ah express ratification. But an express ratification would consist Of the signature of the Other trusted to thé* paper, and of that there is no'-préténse.' -A ratification of an invalid instrument of this nature-by- recognition, we do not understand. The instrument
was void under the. statute of frauds, because of the lack of those signatures which could alone render it valid as a lease ior five years. Recognition could not take..the,place of the absent signatured Whether the conduct of the trustees, by qf Mrs. Pff-terson,amóurited, to such a'part performance of,an. invalid contract as would take the, place of the otherwise necessary signatures is . another question ., It is . difficult to see hpw .there could be any technical ratification of this instrument without a signing thereof by the'other trustee.
' But assuming that something in the 'nature of a. ratification might be based upon subsequent recognition, yet such recognition or ratification must be shown to. have, been founded upon a full knowledge of all the facts. There, is n.o evidence of that kind in the case ; none that .the other trustee even knew of ..the existence either of the written paper of- 1892 or that it. contained a covenant to rene w at. all for .any .time,. ..The .possession by .the company and the payment of rent .were provided for. by the'covenant to renew contained in the. lease of 1-888, ajad hencp .there wás a justification , for that possession and for. the: payment'of the money, which-was entirely,,compatible, with the nón-éxisteiicé of any written lease from 1892, prof any covenant to.a^ain.renew for five years from., August 1, 1897. This possession and payment cannot therefore be use(d as a basis,for the presumption of knowledge .op ,the part of .the . trustee of. the existence of the so-called lease of 18.9,2 or of. the covenant con: táihed therein'. ' ' , .
• Regarding the asserted part performance of the alleged contract Of léásein 1892, or of the covenant contained in that'lease, we think there was none such as to justify the contention that the covenant to renew in 1897 for five years was thereby sp far rendered valid as to call for its recognition and enforcement. In this case there was reason, as we have said, without reference to any assumed part performance of, and.
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Mb.' Justice Peckham,
after making the foregoing statement of facts, delivered the opinion of the court.
It is quite plain that a lease containing a covenant to renew at its expiration with similar covenants, terms and conditions contained in the original lease is fully-carried out by one renewal without the insertion of another covenant to renew. Otherwise a perpetuity is provided for.
Piggot
v.
Mason,
(1829) 1 Paige’s Ch. 412;
Carr
v. Ellison, (1838) 20 Wend. 178;
Syms
v. Mayor, (1887) 105 N. Y. 153;
Cunningham
v.
Pattee,
(1868) 99 Massachusetts, 248; Taylor’s Landlord & Tenant, 8th ed. §§ 333, 334.
From the ordinary covenant to renew, a perpetuity will not be regarded as created. There must be some peculiar and plain language before it will be assumed that the parties intended to create it.
There is no question of the validity of the lease of 1888. It was for five years from the first of August of the year 1887, with a covenant of renewal, and that covenant would have been satisfied by giving a lease in 1892 for five years, up to August, 1897, without any covenant therein for a further renewal. In fact, however, the lease was not legally renewed in 1892, because the paper of that year was signed by one trustee only. In our opinion his signature did not make a valid lease. It required the signatures of all the- trustees. A deed of land executed by one trustee does not convey his share as in the case of ordinary joint tenants. So where a deed of land was executed by two out of three trustees, the burden is upon the purchaser to prove the third trustee was dead. 1 Perry on Trusts, (2d ed.), sec. 411; 2 Perry on Trusts, secs. 499, 502; 2 Story Eq. Juris. (12th ed.) sec. 1280;
Brennan
v. Willson, 71 N. Y. 502-507.
The authorities cited by the counsel for the company, to the effect that one of several trustees may, when so authorized by his associates, act with regard to the execution of some portions of the trust, as their agent, and that when not previously so authorized a subsequent ratification of his act by his associates may bind them all, do not embrace the facts in this case. There is no evidence of any authority to one trustee to sign a lease. The granting of a lease was an important and material act in the way of carrying out the trust under the will, requiring an exercise of the judgment and discretion of all the trustees. It was therefore necessary for them all to act in order to make a valid instrument.
That one of several trustees can be entrusted by his associates with the transaction of the business x>f the trust may be, under certain circumstances, conceded, but those circumstances will not justify the doing of an act by one trustee on
his own responsibility which is of a nature to require the de- > liberate discretion and j udgment of all the'trustees. ’ ;In the case of a-lease bf-property, such üs"is presented herein; the signatures of all are necessary to the validity of the paper.
The case cited of
Insurance Company
v.
Chase, 5
Wall. 509, relates ot an usurance effected bt one of several trustees, and the question was whether the poslicy covered the individual interest of the person taking out the insurance or his interest as trustee; if the former, it was void because he had no interest as an individual, and the policy was therefore one in the nature of wager. The court in the course of the opinion remarked:
"It is true, that in the administration of the trust, where there is more than one trustee, all must concur, but the entire body can direct one of thier number to transact business, which it may be inconvenient for the others to perform, and the acts of the one thus authorized, are the acts of all, and binding on all. The trustee thus acting is to be considered the agent of all the trusteesm and not as an individual trustee. If, within the scope of his agenct, he procures an insurance, it is for the other trustees, and not as an individual trsutee. Id, within authority, sitll it is a valid contract, which the underwriter cannot dispute, if his co-trustees subsequently ratify it. In fact, so liberal is the rule on this subject, that where a part owner of property effects an insurance for himself and others, without previous authority, the act is sufficiently ratified, where suit is brought on the policy in their names."
The facts in this casé do not bring if "within the principle mentioned, and-it’ is clear that to’ rénder thé léase originality valid it must -have been sighed by ail the trustees: 'Without it the instrument as a lease for five yeárs was void under the statute ofiirauds: Comp. Stat. D. C. 231, sec. 4.
It is Contended that the act of one of the trustees'in signing the leasé'was subsequently ratified by the other by a recognition of' its existence by- long continued silence,'if not by ah express ratification. But an express ratification would consist Of the signature of the Other trusted to thé* paper, and of that there is no'-préténse.' -A ratification of an invalid instrument of this nature-by- recognition, we do not understand. The instrument
was void under the. statute of frauds, because of the lack of those signatures which could alone render it valid as a lease ior five years. Recognition could not take..the,place of the absent signatured Whether the conduct of the trustees, by qf Mrs. Pff-terson,amóurited, to such a'part performance of,an. invalid contract as would take the, place of the otherwise necessary signatures is . another question ., It is . difficult to see hpw .there could be any technical ratification of this instrument without a signing thereof by the'other trustee.
' But assuming that something in the 'nature of a. ratification might be based upon subsequent recognition, yet such recognition or ratification must be shown to. have, been founded upon a full knowledge of all the facts. There, is n.o evidence of that kind in the case ; none that .the other trustee even knew of ..the existence either of the written paper of- 1892 or that it. contained a covenant to rene w at. all for .any .time,. ..The .possession by .the company and the payment of rent .were provided for. by the'covenant to renew contained in the. lease of 1-888, ajad hencp .there wás a justification , for that possession and for. the: payment'of the money, which-was entirely,,compatible, with the nón-éxisteiicé of any written lease from 1892, prof any covenant to.a^ain.renew for five years from., August 1, 1897. This possession and payment cannot therefore be use(d as a basis,for the presumption of knowledge .op ,the part of .the . trustee of. the existence of the so-called lease of 18.9,2 or of. the covenant con: táihed therein'. ' ' , .
• Regarding the asserted part performance of the alleged contract Of léásein 1892, or of the covenant contained in that'lease, we think there was none such as to justify the contention that the covenant to renew in 1897 for five years was thereby sp far rendered valid as to call for its recognition and enforcement. In this case there was reason, as we have said, without reference to any assumed part performance of, and. aside from the alleged covenants in, the paper, of 1892, for the possession,by the company ánd for the taking of the rent of the land by the trustees up to 1897.' This reason was based upon , the obligation, which existed undér the valid lease of ,1888. The remaining in possession from 1892 to 1897 and the payment of the money
need not, therefore, be referred to as a part performance of the invalid contract of lease and renewal contained in the paper of 1892. Without any reference to any paper of that character, possession and payment of rent were proper and amounted to nothing more than an acknowledgment of the obligations provided for in'the before mentioned lease of 1888.
Acts of part performance which will take a case out of the statute must be referable solely to the contract.
Williams
v. Morris, 95 U. S. 444, 457;
Phillips
v. Thompson, 1 Johns. Chy. 131;
Byrne
v.
Romaine,
2 Edwards Chy. 445;
Jervis
v. Smith, Hoff. Chy. 470;
Lord
v. Underdunck, 1 Sand. Chy. 46;
Wolfe
v.
Frost,
4 Sand. Chy. 72.
And again, specific performance of a void contract will not be decreed because of part performance, unless fraud and injustice would be done if the contract were held inoperative.
Purcell
v.
Miner,
4 Wall. 513;
Williams
v.
Morris,
95 U. S. 444. Such would not be the result here.
Nor can the receipt of rent in February, 1898, by Mrs. Patterson, under the circumstances detailed in the foregoing statement of facts, amount to such part performance of the invalid covenant to renew as to authorize its enforcement. Neither ■trustee received the rent. The signing of the name of Mr. Wins-low, one of the trustees, on the back of the draft from the company in February, 1898, was without the knowledge of or authority from such trustee, although .the endorsement was made in perfect good faith by Fisher & Co., and the money was paid to and received by Mrs. Patterson. That signing was not a part performance of the contract of lease on the part of the trustees or either of them.
Mr. Winslow was at this time absent in Nicarauga. There is no proof in the case that Mrs. Patterson knew there was no valid covenant in existence for the granting of a further five-year lease from August 1, 1897. Her receipt of the money as beneficiary under the will of her mother would not bind the trustees to renew a lease under an invalid covenant tó do so, or operate as a part performance of that invalid covenant. Especially would this be so where, as in this case, there had for months, or ever since August 1,1897, been a substantial refusal
by the trustees to renew on the old basis or to sell at the old price, and negotiations were still in progress between the trustees and the company relative to the terms of a continued occupation of the lands. The trustees and the company were alone the parties who could agree upon a lease, and while negotiations were pending on the subject, the receipt, unknown at the time to the trustees, of the money by Mrs. Patterson, as stated, could not be equivalent to a part performance by the trustees or either of them, of an alleged covenant to renew contained in the paper of 1892, the validity of which was at the same time denied.
Subsequently when drafts were received by'the trustees they were not cashed, and when they were finally paid it was under a specific agreement that the payment should not in any way affect the situation between the parties. Hence the receipt of these drafts constituted no part performance upon which to base the recognition of the covenant to renew from August 1, 1897, which was repudiated as invalid by the trustees and which was in fact invalid.
Upon the question of the alleged contract to sell, after carefully examining all the facts, we agree with tl\e Court of Appeals in holding that the company was not entitled to a decree for the specific performance of that alleged contract, and, therefore, specific relief of that nature should be denied. Under the terms of the will it is plain the trustees had no general and absolute power of sale, and the conditions upon which it could be exercised did not exist.
Regarding the other relief, we are of opinion that the portion of the injunction prohibiting the further prosecution of the trustees’ action to recover the rental value of the land occupied by the company from August 1, 1897, up to the time mentioned in the complaint in that action, should be dissolved.
As to that part of the injunction which prohibits the further prosecution of the proceedings to recover the possession of the land there is more to be said. We agree with the Court of Appeals upon the subject of ousting the company from such possession. That court held that the evidence' showed the company entered upon the úse and occupation of the property
in controversy with a view to its purchase when it could properly be effected: -It was understood by all the parties what the character of the'use and occupation of the land by the company was 'intended to "be. ■ Subsequently' to- its obtaining possession of the land in 1872 the railroad' company constructed what is known as its Metropolitan1 branch, part of a highway between Washington city, the* adjoining States and the West. This highway is not á mérely private enterprise nor a matter of purely private concern." It is a public road,-constructed for public purposéS, under the sanction of the public'authority band -over which the-public/have rights which cannot be permitted to be obstructed, much less destroyed, either by the: company itself, to which -the franchise has been granted as a public trust to construct and operate this road, or by antagonistic parties claiming the ownership of- • the land upon- which- -'it hks beeñ permitted to- enter without previous payment therefor, or ás the result of any private controversy between the railroad company and such parties. The compahy'having-entered,by the license of-the lessors, an action., át law for the dispossession of the railroad company cannot be maintained if the company is willing to make compensation-for its use and-Occupation of-the laftd.
•: These-views of the' Court of Appeals we'-concur in, but wfe do not say;that-the'company can-: take’proceedings .in-thisi'sui't tp condemn-' the-land'.'The---; proceeding. :to Condemn^ is -otherwise provided- for -by law,-.'arid- although--the -appellants contend -that the company has-no powerim-nder-the'-law tó ;do so, iwe are of opinion that by virtue-Of the Various acts -passed relative to the company, it has such power in this city With'reference'to-this land.- The court ought to-keep ih: force for - a-réasonáble -time, say six''months, -that-' portion "Cffuth'e'dn'junetioii ■ prohibiting -the trustees', from'.Continuing their'.proceeding:to' dispossess' the company from íhé'land, in.-Order to enable it- tomondeilin such-land' in .proper proceedings- for-'that purpose, -which cannot be taken in-the"present suit."' If.-’moré-time' is- needed,'the trial eourt.-may -upon.application;'after -notice; extend the time as to. it ' may' 'seem -reasonably - necessity.' - - Tf'' no ■' -'proceedings to' condemn are-taken' within ;six-"'mónths -f rom.the issuing1of '-the
mandate from this court to the court below, then the injunction should be wholly dissolved.
Our judgment, therefore, will be ,to reverse the judgment of the Court of Áppeáls of the District of Columbia, with directions to remand the case to the Supreme Court of the District, with directions to that court to refuse 'specific performance of the alleged contract to sell the land, and to deny enforcement of any alleged covenant'to lease the skmé froto'August 1,1897, and also to dissolve that portion of tbe injunction enjoining the. trustees from’prosecuting theif suif' to recover the réritaí válue of the land .from. August 1, 1897, and, to,retain that portion which enjoins further action- on: the part, of; the trustees to oust the company .from' .the land,- for ■ six--raonthsfrom -the date of the mafidateof this court, and'for further timé, if the,Supreme Court of the District shall Be of ..opinion, that.it is proper. - If no. proceedings are,, taken to...condemn ¡/the .land, within, six months, then the injunction -shall- be. dissolved. ■ •When the condemnation proceedings' are concluded, or if not taken within the time stated, then, at the, end of that time, application may be made to the trial court, a.nd such, judgment then entered-as shall be consistent with this, opinion,-and with such- provision in regard to .-costs .incurred,* subsequent-to' the Mandate from this court, as shall to that court seém properi ’* ' ’
Reversed and remanded with directions to reverse-the -decree below and remand the case for further proceedings in conformity
to this opnion.