Jackson v. Van Dalfsen

Where JL. g¡n-e to Ü. a power of attorney to suvinto lots/a'cevl 3d, an . against a stranger in possession of a part of the tract, the defendant cannot avail himself of the objection, that Jj* exceeded, his power 5 or that he was guilty of a breach of trust, in selling the whole land to C*

THIS was an action of ejectment for four lots of , , _ . , . . , r at, m > land, at 6oeymans, m the county or Albany. 1 he cause was tried before Mr. Chief Justice Kent, at the Albany circuit, in October, 180/. At the trial, the plaintiff gave in evidence a power of attorney from Andries Ten Eyck, and Peter Ten Eyck, to the lessor, dated the 26th of May, 1796, by which they empowered M'-Carty as follows : “to cause a tract of land at Coeyman’s to be surveyed and laid out into house-lots and streets, and to sell the same for the highest price, and to, the best advantage; and to give and execute sufficient conveyances for the same in fee, to the purchasers thereof ; and to accept of payment therefor, at least one quarter of the purchase-money, in cash, on the execution of such conveyance; the remaining part to be secured by a bond and mortgage, provided the said McCarty shall not sell any lot for a less sum than a proportionate share of 1,200 pounds, for the whole tract, to be apportioned according to situation and quality, reserving to ourselves the right to counteract this power whenever we please, confirming, however, whatever bargain the said M'-Carty may then have completed, which said tract of land, &c. (describing the same,) excepting thereout, a lot where the dwelling-house now stands, and a front opposite thereto in the river; also, excepting two lots, at the place called Ose Kraal, adjoining the said creek ; and excepting one other lot, wherever the said A, Ten Eyck, and P. Ten Eyck choose it, before it shall be disposed of, along the said street of Ose Kraal; all which lots so excepted, the said D. M'-Carty shall have nothing to do with, further than to lay them out regularly with the others,&c. D. G. Van Antwerp, a witness for the plaintiff, testified that A. and P. Ten Eyck demised the old stone-house at Coeyman’s landing, with the premises in question, to one M. B. Langdon, who took possession thereof, under the demise, several years prior to the possession of the defendant. That the land along the river, including the premises in question, were laid out into five water-1,ots, of the breadth of forty feet each, by McCarty, after the power was executed to him; that the lots are adjoining each other, and partly in front of the house, which is fifty feet wide, &c. that McCarty had a map made of the lands comprised in the power, on which the whole was laid out into lots and streets ; that when the power was executed, he understood that the excepted lot, in front of the house, was to be of the breadth of the house, but did not recollect any specific agreement on that subject. The plaintiff then gave in evidence a release from A, and P. Ten Eyck, by M'-Carty, as their attorney, to D. G, Van Antwerp, dated the 26th of July, 1796, for the whole of the land comprised in the power, for the consideration of 1,200 pounds; and also a reconveyance of the same premises, dated the 30th of July, 1796, from D. G. Van Antwerp to M'-Carty the lessor, for the consideration of 100 pounds. On being re-examined, D. G. Van Antwerp testified, that the conveyance to him by M'-Carty, was without any actual consideration, paid by him, and for the purpose of transferring the title to the lessor, in consequence of his apprehending that A. and P. Ten Eyck were about to revoke their power to him. On this evidence, the defendant’s counsel moved for a nonsuit, which was denied by the judge, M. B, Langdon testified, that while in possession of the lease of the house, &c. under a lease from A. and P. Ten Eyck, he took a lease of the premises from the lessor ; and that a few days afterwards, at the request of the lessor, he gave up the lease, which was destroyed j and the reason assigned was, that if the lease was not given up, the witness might be liable to an action by A* and P. Ten Eyck, and that he remained in possession, under the lease from them, until the end of his term. The defendant, pursuant to a notice for that purpose, palled on the plaintiff’s counsel to produce the map of the survey, apd allotment of the premises, described in the power; but it was not produced ; and under the direction of the judge, the jury found a verdict for the plaintiff. A motion was made to set aside the verdict, as against law and evidence, and for the misdirection of the judge.