
    Torquato Paolicchi, Respondent, v. American Telephone and Telegraph Company, Appellant.
    Fourth Department,
    May 1, 1907.
    Real property—ejectment—conveyance of lands purchased by trustees without authority —- license -to erect telephone .poles granted by one trustee only.
    When testamentary trustees, authorized -only to sell lands and pay over the proceeds, purchase lands without'authority, they take title as individuals only, and their grantee and his successor obtain good title in. the absence of . .a claim made upon the lands by the beneficiaries under the will. The title of the successor of such grantee holding under deed executed by both of the trustees is superior to the right of a telegraph company to erect poles bn the lands under a written permission given by one trustee only,- and he may maintain ejectment. •
    Appeal by the defendant, the Americaii Telephone and Telegraph Company, from a judgment of the. Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chautauqua on the 22d day of September, 1906, upon the decision of the court rendered after a trial at the Chautauqua Special Term.
    
      Elton D. Warner, for the appellant. •
    
      Thomas H. LarTcins, for the respondent.
   Williams, J.:

The judgment should be affirmed, with costs.

The action was to recover the possession of real property, usually ■ known as an action in ejectment.

Lawrence Oliphant died' in England in December, 1888. He left a will by which he appointed two trustees, Buckner and Smith, and devised to them all.' his property at ■ Brocton, Chautauqua county, 1ST. Y., upon trust to sell and convert the same into money and pay over the proceeds to his wife and other persons named. Smith, one of the trustees, lived in Haifa, Syria, and in January, 1889, he, .by-; writing, duly recorded in Chautauqua county, appointed Owen, of ■ Chicago, 111.,, his attorney in fact, and attempted to delegate to him his powers and duties as such trustee under the Oliphant will. Thereafter and in September, 1889, one Barlow and wife conveyed to said Buckner and Owen, as trustees, upwards of 500 acres of land in and around Brócton, including the parcel of land in question. In August, 1890, Buckner alone as trustee delivered to the defendant a writing, whereby, for a valuable consideration he granted the' right and authority to construct and maintain its lines, including necessary poles, etc., over the Oliphant property, and immediately thereafter defendant constructed its line and erected its poles over this, parcel of land, and has since that time continuously maintained '. the same. In January, 1891, Buckner, trustee, and Owen, attorney for Smith,■‘trustee, made a conveyance of the tract in question to one Hall. In October, 1899, Hall conveyed to Mrs. Hehi'r, and she having, died in. June, 1905,' her only heir conveyed to the' plaintiff, who has since occupied - the tract in question- under that conveyance. When plaintiff took his conveyance he had knowledge of - the occupation of the premises by the defendant. The plaintiff must, of course, succeed, if at all, on the strength of his own title, ■" and not the weakness of defendant’s grant. . The trial court decided ■ that plaintiff by his deed- acquired a'good title to the tract of land, and having such title, that the defendant could not hold against him under the grant from Buckner alone, because such grant was void, the attorney Owen not having' joined therein, and it did not in terms cover this tract of land, and ordered judgment for'plaintiff.

' The facts are not in dispute. Only questions of law are involved. It must be conceded that the Oliphant will did not authorize any purchase of real estáte by the trustees. They were only to.dispose of such as the testator left at his death, and to pay over to the wife and others the proceeds thereof. When, therefore, Buckner and Owen purchased the tract of land in question and took the conveyance thereof,, they took title as individuals only, although they were named in the conveyance “ as trustees.” Whatever funds of the estate were used by them in paying the purchase price of- the property were improperly so used, and they were, under a legal liability ' to account therefor to the cestuis que trust. The latter might, especially if they could not otherwise secure these funds, follow, the same into the real estate and claim an equitable title thereto to' reimburse themselves, but no such claim was made or proceeding had. It would seem, therefore, that Buckner and Owen had good title to the lauds and gave good title to their grantee as such, though they described themselves in their conveyance as trustees,, and Owen also as attorney in fact of the trustee Smith. The trial court adopted this view of the situation and accordingly held, very properly, that the plaintiff was the owner of the tract of land in question. The grant to defendant describes no particular .property by metes and bounds, the language used being “ over the property which 'heirs own or in which heirs have any interest.” If this parcel of land in question belonged to Buckner and Owen as individuals, as we have determined it did, then it was not covered by this grant; and if it belonged to them as trustees, it is equally true-that the heirs of the Oliphant estate were not the owners and had no interest in it-. The title was in the trustees, and the widow and others named in the will were only interested in the purchase thereof when sold. Moreover, the trustees had no power to lease or license, but only to sell. And if it was trust property, the grant by only one of such trustees would be invalid. The trial court, we think,'very properly held that this grant conveyed no right, title or interest in the tract of land in question to the defendant.

All concurred.

Judgment affirmed, with costs.  