
    Lang v. Wilbraham.
    (Before Oakley, Ch. J., Campbell and Bosworth, J. J.)
    April 11:
    April 30, 1853.
    Section 31 in the title of Ejectment in the E. S. is one of those general provisions relating to actions concerning real property which apply to actions under the Code, according to the subject matter of the action, and without regard to its form (Code, § 455).
    'JL'he provisions in the section, by their reasonable interpretation, apply to all cases where, from any cause, the title of the plaintiff has ceased to exist before the trial.
    It is not necessary to file a supplemental answer to enable a defendant to avail himself of the defence which these provisions furnish.
    Judgment for plaintiff, for damages for withholding possession, and against him for the recovery of possession.
    
      Tras was an action to recover possession of an equal undivided tenth part of two houses and lots, in the city of New York, and was commenced on the 19th of May, 1851.
    It was tried before Mr. Justice Campbell, on the 28th January, 1853, by consent of the parties, without a jury.
    The counsel for the plaintiff, to maintain the issue on his part, read in evidence the following stipulation, signed by the attorneys of the parties
    “ The parties hereto mutually agree to admit on the trial of this action, the following facts, subject to all legal exceptions to their relevancy and admissibility at the trial:
    “ ‘ John Lang, of the city of New York, died March 17,1836, having left a will duly executed, attested, and proven, of which, or of so much thereof as is material in this action, a copy is hereunto annexed, marked A.
    “ ‘ On or before the first day of May, 1851, George S. Puffer, as the agent of Edward Harris, surviving executor of John Lang, deceased, and of the heirs at law of the testator (the plaintiff and his sister, Sarah Lang, excepted), let to the defendant the premises described in the complaint (of which the said John Lang died seized), which he occupied as their tenant until the first day of May, 1852, when the said premises were sold and conveyed by the said Harris, executor, as aforesaid, to Wilhelm Ropke. Since which time, the defendant has continued, and now remains in possession thereof, as tenant of said Ropke.
    “ ‘Robert U. Lang, the plaintiff’s father, on the thirteenth day of June, 1836, by a paper writing, subscribed by him and delivered to the executors of the testator, admitted that he was indebted to the estate of the testator, in the sum of ten thousand dollars, for moneys advanced to him, and that he was to be charged that sum in the settlement of the estate of the testator.
    “ ‘ At the time of the death of the testator, there were living, his widow, Sarah Lang, and seven children, namely: Hannah Gamble, Robert U. Lang, John Lang, junior, Sarah Lang (now Spencer), Charles E. Lang, William Lang, and Edmund Lang.
    
      “ All of the children above named, excepting Edmund Lang, were of age at the time of the death of the testator.
    “ At the time of the publication of the codicil to the will (July 29, 1831), two of the children above named, to wit, William Lang and Edmund Lang, were under the age of twenty-one years.
    “ ‘ Edmund Lang became of age in the month of October, 1837.
    “ Robert IJ. Lang died intestate, July 10, 1837, leaving three children him surviving, viz. John Lang (since deceased), Sarah Lang, and Robert Lang.
    “ John Lang, junior, died August 7, 1836, intestate, and without issue.
    
      “ ‘ Oharles E. Lang died July 9,1848, intestate, and without issue.
    " Sarah Lang, the widow of the testator, died in March, 1850.
    
      “ ‘ The estate of the testator consisted of some personal property, bxit chiefly of real, consisting of seven houses and lots, in the city of New York, of unequal value, so that no one house and lot coxxld be given to any one child as his equal share.
    
      “ ‘ Januaxy 27, 1853.’ ”
    It is not deemed necessary to transcribe the copy of the will annexed to the stipulation, as all the material provisions of the will are set forth in the case of Lang v. Ropke, 5 Sand. S. C. R. 364.
    The defendant’s counsel objected to the admissibility and relevancy of the facts set forth in the stipulation, excepting the 2d and 3d paragraphs thereof. The court overruled the objection, and the defendant’s counsel excepted.
    The plaintiff’s coxmsel, on his part, objected to the admissibility and relevancy of the facts set forth in the 2d and 3d paragraphs of the said stipulation. The court overruled the objection, and the plaintiff’s coxmsel excepted.
    The plaintiff’s counsel hereupon rested his case; and the defendant’s counsel moved to dismiss the complaint.
    The judge stated, that without expressing any opinions upon the admissibility and relevancy of the facts set forth in the stipulation, or upon the questions of law involved in the case, and in the motion to dismiss the complaint, he would deny the motion, and leave the defendant to take an exception.
    The defendant’s counsel then and there excepted to such decision, and prayed the said judge to note such exception, and the same was noted accordingly.
    The court then ordered judgment for the plaintiff, subject to the opinion of the court, on a case to be made by the plaintiff, and to be heard at the general term, in the first instance, without security, and the general term to give such judgment as should have been given at the special term, and with liberty to either party to turn the case into' a bill of exceptions or special verdict.
    
      W. C. Noyes, for the plaintiff,
    insisted that the provisions of the will were invalid, upon the same grounds that were relied on by the counsel for the plaintiff in Lang v. Ropke. He also contended that in some respects the case differed essentially from Lang v. Ropke. There the action was against a purchaser from the surviving trustee, and the court decided in favor of the purchaser upon the ground that the power of sale contained in the will was valid. Here the suit is against a lessee from the trustee, and the premises not having been sold before the suit was commenced, the question was whether the power of the trustee to lease continued fourteen years after the youngest child had attained his age. The facts of the sale to Ropke and of the defendant’s holding under him, having occurred since the commencement of the suit, he contended could not be set up as a defence, no supplemental answer having been put in pursuant to the provisions of the Code, § 197 (Jackson v. McCall, 3 Cowen, 75.)
    
      C. P. Kirkland, for the defendants,
    upon the principal questions, relied on Lang v. Ropke as a controlling authority. Even should the court hold that the trustee had no power to lease, and that the plaintiff had consequently a legal title as a tenant in common when the suit was commenced, yet, .as. before the trial, his title was divested by the sale to Ropke, he could not now be permitted to recover the possession; nor could any other judgment be given than that which the Rev. Stat. prescribed. (2 R. S, p. 308, § 31.) If the statute was applicable, a supplemental answer was unnecessary.
   By the Court.

The main questions upon which this controversy turns, have been decided by this court in Lang v. Ropke, and as we see no reason to doubt the propriety of that decision, we shall certainly adhere to it. We must, therefore, hold that the provisions of the will created no undue suspense of the power of alienation ; and that the power of sale, given to the executors and trustees, was valid as a power in trust, and was duly exercised by the sale to Ropke.

Although by the terms of the will, the whole real estate of the testator vested in the executors at the time of his decease, yet as they were only to hold it úntil the youngest child should attain his age, their title, as devisees in trust, having power as such to rent-the property, wholly ceased when Edmund attained his age in 1839. Their power to sell was from that time a naked power in trust, wholly unconnected with any right of possession or control. The lease made to the defendant on the 1st of May, 1851, by the agent of the surviving executor, was therefore void as against the plaintiff, it being admitted that it was not made under any authority derived from him; nor can it be denied that when he commenced this suit, he had a clear right, as a tenant in common in fee, to recover the undivided share which he claims. But we hold it to be just as certain, that his title as owner, and consequent right to the possession, were wholly divested by the sale to Ropke; and as this sale was perfected before the trial, the only question is, whether the defendant could then avail himself of the defence which it created.

The Rev. Statutes provided exactly for the case, by declaring “ that if the right or title of a plaintiff in ejectment expire after the commencement of the suit, but before trial, the verdict shall be returned according to the fact, and judgment shall be entered, that he recover his damages by reason of the withholding of the premises by the defendant to be assessed; and that as to the premises claimed, the defendant go thereof without day.” (2 R. S. p. 308, § 31.) We are clearly of opinion that this is one of those general provisions which we are hound to apply to actions under the Code (Code, § 455), and that by its reasonable interpretation, it applies to all cases where the title upon which a plaintiff seeks to recover the' possession of real property, has from any cause ceased to exist before the trial. It would be a narrow construction to confine it to cases in which the title expires by its own limitation. As under the former practice, a "defendant could avail himself of the defence which the provision furnishes without a plea puis da/rrein continuance, we do not think that a supplemental answer ought now to be required. When the defence would operate as a surprise, the judge would doubtless deem it proper to postpone the trial.

A rule for judgment must be entered, in conformity to the statute. If the counsel shall have any difficulty in agreeing upon its terms, it will be settled by one of the judges at chambers.  