Saunders v. Webber

Rhodes, C. J., delivered the following opinion, Sprague, J., concurring:

The deed of trust executed by Bezer Simmons to Billings, Bolton and Halleck, as trustees, empowered them to sell and dispose of “the lands mentioned in the deed, either at public or private sale, to such person or persons, for such prices, and on such terms and conditions, and either for cash or upon credit, as in his [their] judgment may appear best and most for the interest of the parties concerned, and convert the same into money.” The powers thus conferred, are to a material extent discretionary. The trustees are required to sell the property and convert it into money; but in respect to the mode, terms and condition of the sale, the execution of the powers conferred, requires the exercise of judgment and discretion on their part. The rule is as well settled as any one in equity jurisprudence, that a discretionary power cannot be delegated to a stranger by assignment. (Hill on Trust, 489; Hawley v. James, 5 Paige, 318; Berger v. Duff, 4 Johns. Ch. 368; Sugd. on Pow. 167; Alexander v. Alexander, 2 Ves. 642; Story on Agency, Sec. 12.) The deed of trust does not authorize the trustees to delegate their powers. The Court,, therefore, erred in admitting in evidence the power of attor[291]ney executed by the trustees to Northrop, and the deed executed in their name, by such attorney in fact.

Judgment reversed, and cause remanded for a new trial.

Temple, J., delivered the following opinion, Crockett, J., and Wallace, J., concurring:

This action is brought to enjoin the execution of a judgment of forcible entry and detainer, obtained against the husband of plaintiff. She alleges that the premises are her separate property,- and that the entry was made by her as owner, and that she was not a party to the suit against her husband.

As against her husband, that judgment establishes that the defendant in this case being in the actual possession, plaintiff’s husband forcibly and wrongfully entered and expelled him. The husband could not defend that suit, on the ground that he was owner, nor could he enjoin the execution of the judgment on that ground. This consideration, in my opinion, is conclusive of this case. Even the Sole Trader Act does not make the wife the head of the family, nor in any respect change the marital relation further, at least, than her business as sole trader. It matters not whether the husband made the forcible entry, or the wife with her husband; the trespass was his, and a judgment against him of this character is sufficient authority to put out any member of his family. If she had applied to defend that suit brought against her husband, and could show that any rights of hers were-affected by it-, she might have been permitted to defend; but it is certain, that the facts stated in her complaint would not constitute a defense to that action.