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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 386 This action, which is brought under the provisions of article V of title I of chapter XIV of the Code of Civil Procedure, is peculiar in its features and is not, perhaps, free from difficulty, with respect to the determination of the conflicting claims to the title to the premises described in *Page 388 the complaint. I have reached the conclusion that the judgment was correct in adjudging the title to the plaintiff, upon the ground that there was a sale by the executors, in execution of the power of sale, and, under the facts of the case, that the ownership, and the right to the possession, of the property sold have become vested in her.
The fifth clause of the testator's will contained an imperative power to dispose of his residuary estate. It was not dependent upon the will of the executors and the testator's purpose was to create from a residue, which should remain after the payment of his debts, an interest-bearing fund for the benefit of his children, while minors. The power was given to the executors, qua executors, and they, accordingly, proceeded to execute it as such. The finding of fact is that they did sell the real estate at public auction, through an auctioneer, upon a published notice, over their names, of the time and place, and that the premises in question were struck down by the auctioneer to Kedney, as the highest bidder. Kedney assigned his bid to Brown; who paid to Doherty, one of the executors, the sum at which the premises had been struck down at the sale, and received a deed thereof from Doherty, as executor. For no assigned reason, the other executor did not join in the conveyance and died some years later and twelve years before the plaintiff commenced her action without contesting plaintiff's title. These defendants, who were infants when the testator died, are his sole surviving children and heirs at law and they became of age some ten and eleven years, respectively, after the sale and the plaintiff's entry into possession. During the twelve, or thirteen, years, intervening before this action was commenced, no proceeding was taken by them with reference to the sale, or to the plaintiff's possession. We have, therefore, in the facts, established by the findings, upon evidence, and by the affirmance of the judgment by the Appellate Division, an execution of the power of sale by the executors through a public sale to the highest bidder. The auctioner was the agent of the executors, for making the sale, as he was for the vendee, for *Page 389 the purpose of the memorandum of sale. (See M'Comb v. Wright, 4 Johns. Ch. 659; also, 3 Amer. Eng. Ency. of Law, 509.) The assignee of the purchaser at the sale paid the whole of the consideration money to one of the executors and all that was needed to perfect the transaction of sale was that Lunny should unite with his co-executor in the deed, or, himself, execute a deed. This was not a case of the non-execution of the power of sale, but of a defective execution; because the intention to execute the power was effectuated by the actual sale. The deed was but an incident, and the final consummation, of a sale under which the plaintiff, or her predecessor in the title, was let into possession. The case is one where equity should grant relief, which may be administered through these provisions of the Code. (Brown v. Crabb, 156 N.Y. 447.) The general rule, undoubtedly, is that trustees must unite in a disposal of the trust estate and a deed of land from less than all the living trustees is invalid. (Brennan v. Willson, 71 N.Y. 502.) But this case is not, by reason of the circumstances, bound by the rigid requirements of that general rule. The requirement of our statutes, that, where a power is vested in several persons, all must unite in its execution, was complied with, in effect, by the actual sale made by the executors. It would be a most harsh and inequitable application of the statute, if, after executing the power by this sale, the subsequent death of one of the executors, who had united in the selling, but who had not joined in a conveyance, should, from the impossibility of procuring, or compelling, his deed, result in avoiding the plaintiff's title. The estate of the testator received the consideration moneys and neither executor, nor devisee, at any time attempted to rescind the sale, or to contest the title. If Lunny, unreasonably, or without any reason, neglected, or refused, to execute a deed in consummation of the sale, he must be regarded as refusing to perform his duty under the will. If his death prevented any legal steps from being taken against him, equally, can it be said that it terminated what opposition he could have made *Page 390 to the plaintiff's ownership. The surviving executor had given a deed and there is nothing that can now be done, further, to complete the plaintiff's title.
The plaintiff was the owner of the whole equitable title, having the possession and the right to the possession. The sale and the agreement of purchase having been performed by the payment of the price and the taking of possession, equity will now regard as done what should have been done. The most that can be said of the defendants' position is that if, by the failure of the purchaser to receive an adequate conveyance, upon the execution of the power of sale by the executors, the legal title has not passed, then they, as heirs, are trustees of the legal title for the plaintiff's benefit. (See Brown v. Crabb,supra.) While an action for specific performance may not be maintainable by the plaintiff, in this action the provisions of the Code, previously referred to, sufficiently warranted the court in rendering the judgment below, which barred the defendants' claim of title and which established the ownership of the plaintiff. I think that the Code provisions fulfill the equitable rule by permitting the court to establish by a judgment, in such an action, that, which ought to have been done.
In the view I have taken, it becomes unnecessary to discuss the question of whether title has been gained by the plaintiff through an adverse possession during the twenty-three years of her occupation. Upon the authority of Howell v. Leavitt, (95 N.Y. 617), it would hardly appear that the facts of this case bring the defendants, who were infants at the time of the sale, within the provisions of section 375 of the Code of Civil Procedure.
For the reasons given, I advise the affirmance of the judgment below, with costs.
CULLEN, Ch. J., EDWARD T. BARTLETT, HAIGHT, WERNER and HISCOCK, JJ., concur; O'BRIEN, J., absent.
Judgment affirmed. *Page 391