As executors the plaintiffs have an active duty to perform, relative to the real estate described in the complaint. They have a *38right to inspect the title deeds of the testatrix, in order to ascertain the extent of their power under the will.
It is incidental to the power of sale, that the executors should have the custody of the deeds by which the title is proved.
So far as it appears the plaintiffs could not execute the power of sale as to this parcel of land, without having the deed.
The allegation in the complaint that the deed was obtained by the defendant by fraud, is uot the gist of the action, but merely to show that his possession is tortious. The general rule is that deeds are'considered to savor so much of the realty, that the law for some purposes does not account them to be chattels, but provides that they shall follow the land to which they relate, and shall vest in the heir as incident to the estate, to the exclusion of the executor.
But in this case the land itself vests in the heirs or devisees, subject to the execution of the power of sale by the plaintiffs.
By his demurrer the defendant admits he is a wrong-doer; as against such party the plaintiffs are entitled to maintain this action.
In the case of Oobbett, Executor of Baxall v. Glutton and another (2 C. & P., 471), a relative of the defendants had in his possession a box containing papers belonging to the deceased. The box and its contents were sent by him to the office of the defendants who were solicitors, to be delivered to the plaintiff as executor, on his giving a schedule of the deeds contained in the box. The plaintiff demanded the box and its contents from the defendants, but they refused to deliver it up, unless the plaintiff would give them a schedule of its contents. And Lord Tisnterden held, that the defendants had no right to insist on the inventory, before they gave up the box; that the plaintiff as executor was entitled to the possession of the papers of the deceased, and could bring an action of trover on the defendant’s refusal to deliver them up.
The plaintiff was entitled to judgment below, but the court below saw fit to grant a favor to defendant which he refused to accept.
The plaintiff is entitled to judgment with costs.
Talcott, J., concurred. Barnard, P. J., not sitting.Judgment and order affirmed, with costs.