O'Brien v. Flint

• Decision Date: 05 March 1902
• Citation: 74 Conn. 502,51 A. 547
• Parties: O'BRIEN et al. v. FLINT.
• Court: Connecticut Supreme Court

51 A. 547

74 Conn. 502

O'BRIEN et al.

v. FLINT.

Supreme Court of Errors of Connecticut.

March 5, 1902.

Appeal from court of common pleas, Fairfield county; Howard J. Curtis, Judge.

Action to recover possession of real estate by James O'Brien and others against Henry I. Flint From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

Robert E. De Forest and George P. Carroll, for appellant.

Daniel Davenport and Elmore S. Banks, for appellees.

BALDWIN, J. The defendant claims title to the demanded premises under the widow of James Fox. By the will of the latter he gave her all his property, real and personal, during her life, with remainder to his son, adding: "If it should be necessary for the support of my wife and son to sell a portion of the land, I hereby give my wife, Catherine, full power to sell and convey as she may judge best." She sold several parcels of the real estate; some of the conveyances purporting to be in execution of the power, and others being simple warranty deeds. The son having died, she then mortgaged the demanded premises,—being the residue of the real estate,—by several successive conveyances for different sums to different parties. None of these mortgage deeds referred to the power. The last mortgage was foreclosed, and, after the foreclosure title became absolute against her, it was transferred to one Godfrey. She then executed a quitclaim deed of the demanded premises to him and Jennings, one of the prior mortgagees; the deed reciting that it was given in consideration of $100, and of "the money which has been advanced to me from time to time heretofore by said Jennings and said Godfrey, or other grantors, and the purchase by them, at my request, of other claims incurred by me, all of which advancements and all this present consideration were and are necessary for my support and maintenance, and the support and maintenance of my son, James, during his lifetime, and were by me used for that purpose." The defendant was in possession under a warranty deed from Godfrey and Jennings.

The plaintiffs were the heirs of the deceased son, and brought the suit after the death of the widow. On the trial, the defendant offered parol evidence to show that all the mortgages were given to secure advances made and supplies furnished to the widow, which were necessary for her support. This evidence was properly excluded. A testamentary power of sale does not authorize a mortgage, unless there be something in the will to show that a mortgage was within the intention of the testator. Hoyt v. Jaques, 129 Mass. 280, 288. The rule that the greater includes the less may justify such a construction of a charter as to make a grant of power to sell embrace a power to mortgage. Willamette Woolen Mfg. Co. Bank of British Columbia, 119 U. S. 191, 198, 7 Sup. Ct. 187, 30 L. Ed. 384. The same principle may be applied to an enabling act in favor of a married woman. Bank v. Underwood, 54 Conn. 2, 4 Atl. 248. In such a case the conveyance is made by the owner of the estate, and the loss, if any should occur, is his alone. But the donee of a testamentary power acts for the dead, and upon what belongs to another. A sale of property presumably brings its full value. A mortgage presumably brings but a part of its value, and yet may result, by foreclosure, in the loss of the rest. The power given in the will before us is expressly conditioned on the necessity of a sale, and no right to make any other form of transfer is fairly implied. The evidence offered to sustain the mortgages was therefore immaterial. No evidence could make them good as against the remainder-men.

Parol evidence was also offered and rejected to prove that the quitclaim deed was given to Jennings and Godfrey for $100, which was necessary for the support of the widow, and to make them good for the several sums previously borrowed on mortgages, which sums they had paid in full to the various mortgagees, receiving in return assignments of their interests and title. She had in her own right a life interest in all the lands, which her mortgages had effectually transferred. They purported, however, to do more. Having full covenants of title and warranty, they might have been a sufficient execution of a power to mortgage the fee, had it been given by the testator; for, while they did not refer to the power which he created, they do refer to that which was the subject of it namely, the estate in fee. Hollister v. Shaw, 46 Conn. 248, 252; Hamilton v. Crosby, 32 Conn. 343, 347, note; Warner v. Insurance Co., 109 U. S. 357, 3 Sup. Ct. 221, 27 L. Ed. 962. But be this as it may, mortgages having been in fact unwarranted by the power, the lands at the date of the quitclaim deed were owned by the plaintiffs in fee, subject to an estate for her life in the releasees, and to a power to sell the fee, which she could exercise if it should be necessary for her support The death of her son had narrowed this power, but not destroyed it. The testator's object manifestly, was to enable her to provide for the wants of both so long as the son lived, and of herself, should she survive her son. Nor was she only empowered to make a single sale, and convey part of the lands. If it became necessary to sell a portion in order to provide for her support, she might afterwards sell other portions for the same purpose; and the language of the will is such as to justify a sale of all, if that were judged by her to be the best way of raising the sum required. In such case a trust in favor of the remainder-men as to the balance of the purchase price above that sum might have arisen, but this would not invalidate the conveyance.

The quitclaim deed was wholly inoperative if it did not convey a title to the remainder in fee. The fact, therefore, that it does not refer to the will, nor declare in terms that it is made in execution of a power, would not deprive it of effect, if the transaction which it consummated was such as to amount to a lawful exercise of the power with which the widow was intrusted. 1 Sugd....