
    The Mutual Life Insurance Co., Resp’t, v. Edwin B. Woods, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed May 9, 1890.)
    
    
      I. Vendor and purchaser—Marketable title.
    Plaintiff claimed to have derived title to the premises in. question: 1st. through a purchase by, and conveyance to it in 1877 on a foreclosure sale upon a mortgage made by Raynor and wife. 2d. Through a conveyance to it in 1880, by Raynor’s executrix under a power of sale conferred on her by Raynor’s last will and testament. Held, that it was a good title and the deed by Mrs. Raynor was a valid execution of the power under the will.
    3. Same—Executors and administrators—Duty as to giving conveyance oe property.
    The estate was liable for a deficiency under the foreclosure and by giving the deed the executrix obtained a release from that and a small sum of money. Meld, that she wisely exercised the discretion conferred upon her by the will in regard to the sale of the property and that whatever conveyance comes within the terms of the authority and tends to promote the object of the testator, must be held to be a valid execution of the power.
    
      Appeal from judgment of the supreme court, general term, first department, affirming judgment entered on report of referee directing that defendant specifically perform a contract for the purchase of real estate.
    
      Aaron Pennington Whitehead, forapp’lt; Herbert B. Turner, for resp’t.
    
      
       Affirming 21 N. Y. State Rep., 341.
    
   Ruger, Ch. J.

This was an action by the vendor to enforce specific performance by the purchaser of a contract for the sale of certain lands in the city of New York. The lands were originally owned by one William H. Raynor, and the plaintiff claimed to have derived title from Raynor through two independent modes of conveyance: 1st Through a purchase by, and conveyance to it on a foreclosure sale upon a mortgage made by Raynor and wife ; 2d, through a conveyance to it by Raynor’s executrix under a power of sale conferred on her by Raynor’s last will and testament This title was objected to by the purchaser:

First. Upon the ground, that so far as it was derived from the purchase on foreclosure sale, it was defective for the reason that certain persons alleged to have had an Intérest in the lands were not made parties to the foreclosure suit, and, second, that, as to the latter source of title, the conveyance by the executrix of the will was alleged not to have been made in conformity with the power. The. foreclosure sale took place in 1877, and the deed by the executrix was made in 1880.

It is evident that if the sale on the foreclosure proceedings failed, for any reason, to confer a valid title upon the purchaser, any remaining interest in the land would be subject to the execution of the power by the executrix, and her deed to him, if made pursuant to the power, would convey a good title as against any persons who were not cut off by the foreclosure. If, therefore, we come to the conclusion that the executrix’ deed was a valid execution of the power, it becomes unnecessary to discuss or consider the objections to the title arising under the claim that the foreclosure proceedings were defective. We are of the opinion that such deed was a valid execution of the power. The referee has found that the price paid was an adequate consideration for the land, and the estate received the value thereof from the purchaser. These lands were, upon the death of Raynor, heavily incumbered by mortgage, and it was a matter of grave doubt whether, upon a foreclosure, there would not be a large deficiency upon a sale of the lands under such proceedings. It was demonstrated by the foreclosure sale afterwards taking place, that these apprehensions were well founded, and a considerable deficiency did, in fact, arise. The payment of this deficiency was chargeable upon 'the remaining property of- the estate in the hands of the executrix, and by the sale to the plaintiff the executrix secured, not only a small sum of money, but the release of the estate from the payment of a much larger sum, thus exempting such property from a heavy burden and placing it in a favorable position to be made available for the purposes of the trust. It cannot be doubted but that a condition thus arose for the exercise of that discretion in regard to the sale of property which was conferred upon the executrix by the will, and it cannot be said, under the circumstances of the uase, that, having received the full value of the land, she has not wisely exercised the discretion with which she was vested. It cannot bé claimed that the conveyance in question was not strictly within the terms of the power, and to hold that it was not within its spirit and meaning would tend to defeat the apparent object -and purpose of the testator in creating the trust. It was the plain purpose of the will to confer upon the executrix a discretion to so manage the estate as to create a fund for the purpose of carrying out the provisions of the will, and whatever conveyance comes within the terms of the authority and tends to promote the object of the testator, must be held to be a valid execution of the power.

The appellant has urged as an objection to the validity of the executrix’ deed, that it was executed as an attempt to patch up a defective title.

We do not regard this claim as having any force, for we do not know of any principle of law which prevents the holder of a defective title from taking any legal means to procure, by purchase or otherwise, all such claims to real estate as he may consider necessary to protect his own interest therein. We are not unmindful of the rule that a purchaser of real estate, under a contract of sale, is entitled to a conveyance free from any material objection, and we think the title through the deed of the plaintiff tendered to the defendant is such a title and should have been accepted by the purchaser.

The judgments of the courts below should, therefore, be affirmed.

All concur, except Peckham, J., not sitting.  