Short v. Wilson , 13 Johns. 33 ( 1816 )

Thompson, J.,

delivered the opinion of the court.

The premises in question are one hundred acres of lánd, át the southwest corner of lot No. S3, township No. 11, in the town of Phelpsi It was admitted, on the trial, that the title, waa once duly vested in Oliver Phelps, from whom the .plaintiff derived his title, by-, deed, bearing date the. 14th of November, 1801. A previous contract for the land had, however, been made by the plaintiff with Peter B. Porter, as attorney for Oliver Phelps. The articles of agreement bear date the 22d of September, 1799. The power-of attorney to Porter was n'ot produced, but the .case furnishes abundant -evidence that Phelps ratified the act, and adopted it as his own ; for he-received part of the consideration money, and executed a deed pursuant to the contract. There would, therefore, be no doubt of the plaintiff’s title to the lot, if it were not for the previous contract, made with Adam Miller, bearing date the 23d of August, 1797, and the deed, in trust, given by Phelps to Peter B. and Augustus Porter, bearing'date the 16th of January, 1799. A little examination, however, will show, that neither of these instrutoents will form any objection to the plaintiff’s title to the land. By the contract with Miller, the deed was to be given in 1-802; the consideration money to be paid by instalments, all payable before the deed was to be given; and the contract expressly -provides, that if Miller should fail in the performance of any of the covenants on his part, then Oliver Phelps was to be- fully discharged and acquitted from making the conveyance. By these articles, the first payment fell due the 23d of August, 1799; . Miller failed in performing his contract; this appears from nil* merous parts of the ease, and is expressly; so recited in the deed from P. B. and A. Porter to Brooks, under which the defendants claim. Miller having failed in the performance of his contract, Phelps had, undoubtedly, a right to avail himself of the forfeiture, according to the provisions in the articles of agreement. There can be no stronger evidence of his intending so to do, than the sale made of the same land a short time thereafter, (22d of September, 1799,) to the plaintiff in this cause.

• The deed, in trust, given by Phelps to P» B. and A. Porter, would form no impediment to the contract made with the plaintiff,for it was made through the agency, and with the assent, of all parties to the deed intrust, both principal and attorneys, the cestuy que trust and trustees. Peter B. Porter made and signed the contract,"Augustus received part of the consideration money, and Phelps the residue; and he also consummated- the title, by giving the deed pursuant to the contract. Here, then, was a revocation of the trust, so far as it related to this land, with the' assent and 'concurrence of the trustees, and cestuy que trust. Besides, the trustees had not, under their deed, any authority to execute the trust. This deed refers, generally, to the contracts that had been made by Phelps $ and the trustees were only directed to give deeds to such purchasers' as should fulfil the conditions and payments, in their respective articles of agreement stipulated, according to the tenor and effect of such articles. Miller did not fulfil his contract, and the trust, so far as it respected him, was at an end, and resulted to Phelps; (1 Cruise's Dig. 475. 2 Fonb. B. 2. ch. 5. s. 1.;) and the trustees had no authority to give a deed without some new' power or direction from the cestuy que trust. . Such, also, must have been the understanding of all parties at that time; for no deed was executed under these articles until September, 1813, when it was given to Peter C. Brooks. Nor can the power of attorney, given by Phelps to P. B% and A. Porter, on the 16th of December, 1799, in any manner impeach the plaintiff’s title ; that was a' power to transfer certain lands, and articles of agreement, to secure to Rebecca Gorham, and others, the sum of 12,500 dollars, and the bond and articles of agreement with Miller were assigned to Brooks, in trust, to be paid to the heirs or' administrators of Mathaniel Gorham, when collected. This power is dated after the contract made with the plaintiff 'for the land in question, and could not prejudice his rights. Miller's bond and articles were assigned, among considerable other property, in trust, for the heirs or administrators of Gorham,; and nothing appears to j)ave been done under the assignment for seven or eight, years afterwards, when Miller was prosecuted upon the bond, and; being unable to ,pay, abandoned his whole contract, which was for much more land than what is how in question ; the assign- . ment, therefore, to- Brooks, was hot absolutely inconsistent with the sale of the one hundred acres to the plaintiff. It may be operative and effectual as to, the residue of the land included in Miller’s contract. The defendants must fait on the issue, which alleges the title to be in-JSroofo, for when the deed was given to■■ him, there was clearly an adverse, possession in Spon, who held under the plaintiff. I am, therefore, satisfied that the legal title to the land: in question is in the plaintiff, and his claim to recover is fortified and strengthened by the equity of the case being, also, with him.

If the plaintiff has made out ,a legal title in himself, there can ' be no objection to his maintaining this action. ’ Spon was in pos» ' session as his. tenant, under a lease; and the defendants, pre-; .vious to the time when the waste is alleged to have been committed, took from Spoñ ah assignment of his lease; neither this lease, nor the assignment, is particularly set out in the case, but no objection appears to havé been made, upon the' trial, to the-competency or sufficiency of the proof of. them., We must, therefore, consider the ¡defendants as the assignees of the .plaintiff’s tenant, and, of course, liable to this action. (2 Sound. 252., note.) We are, accordingly, of opinion, that, the plaintiff is entitled to judgment.