
    Barber against Cary.
    By the common law, where a power was to be executed with the consent of third persons, the death of one of such persons before consent given, rendered the execution of the power impossible.
    This rule of law has not been changed by the revised statutes. Section 112 (1 JR. S. 735) is applicable to grantees of a power, not to thud persons whose consent is requisite to its execution.
    Accordingly, where land was devised to a son for life and then to his heirs, with power to him to sell and convey the same, by and with the consent of his mother and brother, and she died without consenting, and the son afterwards, with the consent of his brother, sold and conveyed the land; Held, that no title passed by virtue of the power.
    Anson Cary died on the 3d of May, 1842, leaving a last will and testament, by which he devised certain lands to Albert G. Cary, during his life and to his heirs, with a power to the said Albert Gr. Cary to sell the same, by and with the consent of his mother, Hannah Cary, and his brother, George A. Cary, the defendant. Hannah Cary died on the 9th of July, 1842, and before the execution of the power. On or about the 19th of July, 1843, Albert G. Cary conveyed said lands to said George A. Cary, in trust; one of the purposes of which trust was to sell the whole or a part thereof, and out of the proceeds to extinguish a judgment which was a lien on the land. The consent of George A. Cary was given to such conveyance, but was not expressed in the deed, nor certified in writing thereon, as required by statute. On the 4th December, 1846, the defendant conveyed a part of the lands to the plaintiff, who gave a mortgage thereon to William G. Sands. Sands assigned the mortgage to the defendant, who advertised the premises for sale on a statute foreclosure.
    The plaintiff being advised that his title to the land was defective, because the consent of George A. Cary to the conveyance, by his brother Albert to himself in trust, was not expressed in or certified on the deed, as required by the statute, and being unable to raise money on the land to pay the mortgage on account of such defect, requested George A. to execute a formal consent, which was not done, and this suit was instituted against him to compel him to do so.
    On the trial, be'fore Justice Mason, at the Chenango circuit, the • foregoing facts appeared, whereupon he ordered judgment against the defendant for the relief prayed. On appeal to the general term, sitting in the sixth district, this judgment was reversed, and judgment rendered against the plaintiff for costs. The plaintiff appealed to this court.
    
      Henry R. Mygatt, for the appellant.
    
      W. N. Mason, for the respondent.
   Gardiner, Ch. J.

The 122d section of the statute in relation to powers provides, “ that when the consent of a third person to the execution of a power is requisite, such consent shall be expressed in the instrument by which the power is executed, or shall be certified in writing thereon. In the first case, the instrument of execution; in the second, the certificate shall be signed by the party whose consent is required; and to entitle the instrument to be recorded, the signature must be proved or acknowledged in the same manner as if subscribed to a conveyance of lands.” (1 R. S. 736.) The defendant in this case sustained the relation of third person to his brother, the donee of the power, undoubtedly; but he was also the grantee in the conveyance, by which it was attempted to be executed. Whether this circumstance is to form an exception, from the general language of the statute, is the question to be determined. My conclusion is, that it does not. The power itself cannot be executed “except by some instrument, which would be sufficient in law to' pass the estate, if the person executing the power were the actual owner,” (Id. § 113;) and by the section already quoted, it was the purpose of the legislature, that evidence equally satisfactory of the consent, where that was necessary, should accompany or rather form a part of the instrument or conveyance. This evidence is wanting in the deed from A. Gr. Cary to the defendant. There is no writing showing the assent of the latter, but this is to be inferred, if at all, from his acceptance of the conveyance■; a fact to be established by parol. But beyond the delivery, which is essential to give validity to an instrument executed in conformity with this statute, as in other cases, the legislature have said, that purchasers, and all others whose interests may be affected by the execution of the power, shall have a writing authenticated by the signature of the defendant in or upon the deed itself, There is nothing unreasonable in this. The testator, in this case, saw fit to clothe the defendant with a quasi power over his estate, by making his consent a condition precedent to its alienation; and the statute has prescribed the mode in which that power shall be exercised, and it must be substantially pursued. There is more reason for insisting upon compliance in the case of a deed creating a trust, than in those where the grantee takes a beneficial interest in the grant. In the latter case, an acceptance of the grant might be reasonably presumed from its advantageous character to the grantee; but such a presumption would scarcely apply to a trustee, upon whom an. obligation was imposed, without any corresponding benefit to himself.

The conveyance subsequently made to the plaintiff by the defendant of a portion of the premises, subject to the power, will not help out the defect in the first deed. The power emanated from the testator, and when executed operated by relation on his estate. By his will, when read in connection with the statute, he authorized one of his sons to alienate the property described, with the consent of the other $ the consent to be manifested in the manner prescribed by law. The grant to the plaintiff by the defendant might estop him, but would not prevent the other heirs from alleging that the power had not been executed in the manner prescribed by the testator and by the statute. His consent derived all its force from the will; his grant was his own act, and operated upon his interest in the land independent of the will. If there has not been a valid execution of the power, as I think is established, there does not appear to be any sound objection to the relief asked by the plaintiff. He was a purchaser in good faith, for a valuable consideration; and section 182 of the act referred to provides, “ that purchasers, for a valuable consideration, claiming under a defective execution of any power, shall be entitled to the same relief in equity as similar purchasers claiming under a defective conveyance from an actual owner.” All the parties to the sale intended an actual conveyance. The defendant gave his assent in fact; has never claimed otherwise, but has constantly affirmed the validity of the transaction to transfer the title.

We must assume the facts as found by the justice who first heard the cause. The supreme court at general term did not, as I understand their decision, differ from him in his construction of the testimony, but placed their decision upon the ground, first, that the death of the mother, without giving her consent, destroyed the power to alienateand secondly, that the court would not in this or any case entertain a suit to oblige a person, having a discretion to exercise, to give his assent to a conveyance.

The second ground of reversal is obviated by the fact, that the discretion had been exercised; that the defendant had in fact deliberately given his consent by accepting the deed of trust, and acting under it. The statute evidence of his judgment expressed in another form was alone wanting; and this it was competent for the court to enable him to supply.

The other ground assumed by the supreme court is, as it appears to me, tenable, and a conclusive answer to the action. That the consent both of the defendant and his mother at the common law would have been necessary to a proper execution of the power, is conceded; and that her death, by rendering the performance of the condition impossible, would by consequence have annulled the authority altogether. But the counsel for the plaintiff relies upon the 112th section of the act to obviate the objection. It declares, that where a power is vested in several persons, all must unite in its execution; but if, previous to such execution, one or. more of such persons shall die, the power may be executed by the survivor or survivors.” If this provision is applicable, it follows, that the persons whose consent is requisite are themselves clothed with the power, or according to § 135, the grantees of it. Such an hypothesis would abrogate the distinction between the executor of a power and a third person who consents to its execution, which runs through the whole statute. If both sustain the same relation to the power—in other words, if both are grantees, there is no reason for a distinction in the manner in which they are to execute it. The 113th section, however, provides that no power can be executed except by an instrument that would pass the estate if the person executing it were the actual owner, while the 122d section declares that the consent may be certified in writing on the instrument by which the power is executed. Again, only those who can alienate lands can execute a power, while there is no such restriction as to those who may consent to its execution. And lastly, if all are grantees as supposed, if Albert G-. Cary had died, the power could have been executed by his mother and the defendant, under the 112th section. A construction which thus virtually denies the distinction in the authority of one empowered to sell lands, and of one who merely consents to such sale, must be unsound, and certainly is not sustained either by the common law or the statute. For this reason, I am of opinion that the judgment of the supreme court should be affirmed.

Parker, J.

If the will of Anson Cary had taken effect previous to the first of January, 1830, Albert Or. Cary would have taken, under the rule in Shelley’s case, a fee simple in the land in question ; but not having taken effect till after that time, the devise is subject to the provisions of the revised statutes, and under them Albert Or. Cary took a life estate only in the land, and his heirs took the remainder as purchasers. (1 R. S. 725, § 28.)

Albert G. Cary then took under the devise a life estate, with power to alien the same by grant, by and with the consent of Hannah Cary and George A. Cary. This was a general and beneficial power. The alienation might be made to any alienee whatever, and for the. benefit of the grantee of the power alone. (1 R. S. 732, §§ 78, 79.) But the power could only be executed on the precise conditions prescribed by the terms of its creation, viz. by and with the consent of Hannah Cary and George A. Cary. The first question is, whether the death of Hannah Cary, which occurred before the execution of the'power, was fatal to the conveyance. The rule of law is well settled, that when the consent of third persons is required to the execution of a power, that, like every other condition, must be strictly complied with. (Sugd. on Vendors, 319; Simpson v. Hawley, Prec. Ch. 472.) If the person whose consent is necessary die before the execution of the power and without having assented, the power is gone, although his death was the act of God. (Danne v. Annas, Dyer, 219, pl. 8; Frakelien’s case, Mod. 62, pl. 172; Munsell v. Munsell, Wilmot, 36.) So where the consent of several persons is required, the death of one of them destroys the power; for the consent of the survivor will not satisfy the the words of the power. (Atwaters v. Birt, Cro. Eliz. 856 ; S. C., Noy, 38, nom. Alwaters v. Bird; Butler v. Bray, Dyer, 189 b; Wilmot, 56.)

There is no provision of the revised statutes that changes this well established rule of the common law.- The counsel for the plaintiff argues that the following section of the revised statutes (1 R. S. 735, § 112) is applicable, and that one of the two persons whose consent was requisite having died, it was sufficient that,the consent was given by the survivor. Where a power is vested in several persons, all must unite in its execution; but if, previous to such execution, one or more of such persons shall die, the power may be executed by the survivor or survivors.” This section is applicable only to grantees of a power, not to the persons by whose consent it is to he executed. The person in whom the power is vested is called the “ grantee of the power.” (1 R. S. 138, § 135.) The person whose consent is required for its execution is called a third person.” (1 R. S. 736, § 122.) The power is in no respect vested in such third person. He can only consent to another’s executing it. The argument which would bring this case under the 112th section involves the absurdity of calling Hannah Cary both a “ grantee of the power” and a “ third personand of holding that if Hannah Cary and Albert G. Cary had both died, the power might have been executed by George A. Cary as survivor ; for that might be done under the authority of the 112th section, if all three were “ grantees of the power.”

That the 112th section is inapplicable to this case, is further apparent from section 113, which provides, that “no power can be executed, except by some instrument, in writing, which would be sufficient in law to pass the .estate or interest intended to pass under the power, if the person executing the power were the actual owner.” Now, Hannah Cary and George A. Cary were only authorized to give a consent—they were not authorized to convey, and could not, under the requirement of the statute, execute the power.

It cannot be necessary to give further reasons, for the purpose of showing that the 112th section has no applicability to this case. There has been no design to obliterate the well defined line which separates the province of the grantee of a power, from that of him who may only consent to its execution. The law remains as it has been long settled at the common law.

It_follows, that by the death of Hannah Cary, it became impossible to execute the power. The deed in trust to George A. Cary was therefore inoperative, and conveyed no title, and it would not have aided it if the consent of the latter had been expressed in the conveyance or certified in it in the form prescribed by statute. Of course, no such,expression or certificate of consent can be made available now. The plaintiff has no means of perfecting his title by supplying the defect. His only remedy may be upon the defendant’s covenant of warranty in the deed, whenever that covenant shall have been broken. The judgment of the supreme court should be affirmed, with costs.

All the judges, except Ruggi.es, J., who did not hear the •argument, concurred.

Judgment affirmed.  