Brown v. Van Duzee , 44 Vt. 529 ( 1872 )

The opinion of the court was delivered by

Wheeler, J.

There appears to have been no incumbrance upon the land conveyed by the defendant to the plaintiff, which the defendant covenanted was free from incumbrances, unless one existed by force of the deed from Horton, executor, to Marble, wherein Horton conveyed a parcel of land adjoining that conveyed by the defendant to the plaintiff, and undertook to convey a privilege of a foot-pass across the latter with the former parcel. Horton was not then the owner of either parcel. He had no authority to sell or convey either, except what he derived from the license granted by the probate court to him as executor. This license was an authority given by the law as administered by the probate court, and had no force except that which the law through the action of that court gave it. The law, General Statutes 396, § 39, clause sixth, gave the probate court power to authorize the executor to sell such part of the estate as should be judged necessary or proper. By virtue of this power the probate court authorized this executor to sell “ so much of the real estate of said deceased not specifically devised in and by the will of said deceased” as should be sufficient to raise 11,442.92, and all incidental charges. The word sell is the operative word both in the statute and in the license. That word imports that the whole title to any estate disposed of is to be parted with for an equivalent in money, and not that such estate is to be incumbered for money. The statute further provided that the deed of an executor, or administrator, having proper license and certificate should be as good and valid to all intents and purposes to convey the estate authorized to A'C sold, as if the deed had been executed by the deceased in his lifetime. General Statutes 396, § 40. This rather indicates that the whole title of the deceased in the part sold, and not a part of it only, was to pass by the deed. Horton, as executor, did not sell, nor undertake to sell to Marble, the land that the defendant after-wards sold the plaintiff. He undertook to incumber it with a foot-pass; but to sell the whole estate, and to incumber in that way, are very different things to do, and very different in effect. He had authority to sell but not to incumber. His authority was given by the law through the action of a court of record, upon proceedings of which all persons had constructive notice, and which would appear of record. Under these circumstances his authority could not be enlarged by his action under it beyond its legal effect. His act in undertaking to create a foot-pass outside of land he sold, was without force, and no incumbrance was created by it. Therefore there was no legal incumbrance on the land which the defendant conveyed to the plaintiff at the time of the conveyance, as shown by this case, and the judgment of the county court for the defendant was correct. Judgment affirmed.