(dissenting):.
I agree with the opinion ,of -the presiding justice that the. complaint. states a cause of .action. I concede, too that it is not correct" practice to grant a motion to dismiss made by counsel for the defendant at the commencement of the trial, .solely on facts stated by him. If that'was all there was of this appeal I would agree that the jtidg- . ment would have to be reversed, but this dismissal does not stand alone "upon such statement of facts.
The. record "does not .show that the motion to dismiss was granted on the facts stated by counsel, but on the facts. The court had •before -it the pleadings and in determining the facts it could properly consider any admissions contained therein. .It also had the will of Emeline Lamb and the contract to convey made hv the plaintiff •dated. May 10, 1905, which, while hot formally introduced "in evidence, were apparently produced for.the use-of the court by plain- ■ tiff’s counsel, and he has included them in the record on appeal,.made by him. Nothing "was "stated by respondent’s counsel before the trial court.as facts, so far as the record shows, which".was not warranted bv such admissions and by these documents. The defendant served her answer containing a general denial of the facts alleged in the complaint and setting up a counterclaim for the $100- paid by her under the contract in which counterclaim she alleged that the agreement of May 10, 19.05, was the only agreement ever made between the parties relating.to the sale of real estate.; that that was made by the plaintiff as executor of the will of Emeline Lamb; that .such will contained no power or authority, to the plaintiff , as executor thereof to sell real estate and that the plaintiff was not at the time of the- execution of the agreement or at the time of the commencement of the action, the .owner of the premises in question. In the plaintiff’s reply it was admitted that the contract of May 10, 1905, was the only contract between the parties and that the plaintiff was not on that day or at the time of the commencement of the action the owner of said real estate;,. The execution and probate of the will of Emeline Lamb."was also .admitted ..as well as the appoint- ■ ment of the plaintiff as the executor thereof;
The .appellant’s counsel did not, before the -trial court, nor" has he in his brief or upon- the argument before this court, in anywise' disputed any of 'the facts shown by these documents, or admitted by the *713reply. I -think, therefore, we may regard -these . facts as properly before us for consideration. These, regardless of anything said by defendant’s counsel on the trial as to the facts, are sufficient to warrant, In my opinion, the dismissal of the complaint. As there was no power of sale in the will, the plaintiff as executor thereof could not give a good title, and as.he was not the owner of the premises-neither could he give a good .title as an individual. It is clear, therefore, that he was not, at the trial,- in a position to perform the contract on his part because it was impossible for him to give “ a good and sufficient warranty deed conveying said premises to the defendant as he, as executor, had covenanted- to do. His action. to compel performance on the 'part of. the defendant was, therefore, in my opinion, properly dismissed.
The judgment should be affirmed, with costs.
Judgment reversed on law and facts and new trial granted, with .costs to appellant to abide event.