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On February 24, 1888, Breuer, plaintiff, entered into the contract with Hayes, defendant, upon which the action is founded. In consideration of the payment of $20,000 by Hayes, $10,000 cash and the balance in two mortgage notes for $5,000 each, and the conveyance by him of a farm owned by him in Pendletou county, Ky., of 560 acres, together with all the goods and chattels thereon at the time of the contract, including live stock, Breuer agrees that he will by good and sufficient deed of general warranty, sell and convey to Hayes, his heirs and assigns, the leasehold estate in Butler county in the 275 acres above referred to, " being the same premises now held by Charles C. Breuer and others under a lease from John Carlisle and Albert G. Clark, executors, with the privilege of purchasing the same for $30,000, as by reference to said lease will more fully appear. Said premises, when conveyed, to be clear and free from any and all claims whatsoever, or encumbrances, subject however, to the terms of the lease.” The contract further provides that, "all conveyances above mentioned, and all payments of money, and all instruments hereinbefore mentioned, shall be made and executed and delivered, and possession of said real and personal estate delivered, on or before the first day of May, A. D. 1889. In testimony whereof the said parties have hereunto set their hands and seals the day and year aforesaid. It is understood that if, upon examination of the title to the leasehold estate, it shall appear that said John Carlisle and Alexander Clark, executors, have not full power and authority, without an order of court, to convey to said Timothy Hayes, his heirs and assigns, the fee simple estate in said described premises, then this agreement is not to be binding upon the parties hereto. C. C. Breuer, Timothy Hayes.” Breuer made an arrangement witli Potter and Parlin, his co-lessees, by which he was enabled to convey the entire leasehold estate to Hayes.

In the words of the court's finding, “Soon after execution of the contract, difference arose between parties, and after some negotiation, and investigation of title, Hayes declined to execute the contract, assigning as reasons for his refusal so to do, that he had been deceived by false statements of the plaintiff, made to him at and immediately before the execution of the contract, concerning the value of the property; also concerning the nature and extent of a water-right appurtenant to the premises, and that the title of the plaintiff to the premises was defective.” Suit was brought on May 9th, and the pleadings raise the issues indicated by the terms of Hayes' relusal to execute.

The court below found that the charges of misrepresentation and deceit were not sustained by the evidence, but that, as a matter of law, the executors of Pollock Wilson had no power under the will to grant the perpetual lease; that plaintiff's title was therefore defective, and that even if it were not defective, it was of so doubtful a character as not to entitle plaintiff to specific performance.

The judge at special term, Judge Peck, delivered his opinion, holding the title defective at the December term, 1888 (Breuer v. Hayes, ante 391), and the plaintiff counsels thereupon requested separate findings of fact and law. To give time to prepare these, the cause was continued until the January term. Before the findings were entered in the January term, plaintiff made a motion for leave to open the cause to introduce further evidence, to show that any defect in the title had been cured by conveyances subsequent to the decision in the cause. The

The conveyances offered were two. The first was a deed from Wilson's executors of the fee in the tract, subject to the lease to Brever and associates, to one F. C. Superior Court of Cincinnati.


Mayer, and the second was a deed from Mayer to Breuer and associates, confirming and ratifying the lease by the executors. The motion to open the case was overruled, and a bill of exceptions containing the deeds offered and reciting these facts was allowed. The findings and decree dismissing the petition were then entered. TAFT, J.

Plaintiff's counsel rely on three grounds for setting aside the decree. They contend: First, that by the terms of the contract, the parties, in effect, stipulated that a failure of title in the leasehold should not be ground for a refusal by Hayes to perform. Second, that Breuer's title to the leasehold was perfect when Hayes notified him of his intention not to perform. Third, that even if at that time there was a efect in the title, he had cured the defect before decree, and by a well established rule of equity the court should have then compelled performance.

First—The argument upon the first ground, which has been pressed on us, is that because the parties expressly stipulated that the contract should not be binding on either, if upon examination of the title it should be found that the executors could not convey the fee under the privilege of purchase without the sanction of court, they must be held impliedly to have agreed that the contract should be binding on both, whatever failure of title there might be in the leasehold. We think this to be an unwarranted application of the maxim Expressio unius est exclusio alterius. The plaintiff had expressly covenanted to convey a title to the leasehold free and clear of all claims. By all the ordinary rules of construction, such a covenant is a condition concurrent or precedent to Hayes' obligation to pay the purchase-money. By express words, of course, such construction could be modified, and the legal consequence of a breach could be avoided, but surely it can not be done by applying a maxim useful only for supplying a term in cases of doubtful coustruction. The estate, which Hayes contracted for, was a perpetual leasehold, collateral and appurtenant to which was a privilege of purchasing the fee, and we are asked in this argument to exercise the judicial discretion, reposed in courts of equity in cases of this kind, io enforce defendant's purchase of the privilege, even though Breuer has no leasehold to give. We are asked, in effect, to compel defendant to buy a mere chose in action when he contracted for a present and perpetual estate. This, it seems to us, would be the play with the character of Hamlet left out. It is evident from the place in which the clause, relied on, is inserted, that it was an afterthought, the result probably of abundant caution, and a fear that the covenant to convey leasehold free and clear, might not secure to Hayes beyond a doubt a valid privilege of purchase. We are satisfied that no one could be more surprised than the parties at the time of the contract would have been, had they been told that the effect of this clause was what has been contended for it at the bar.

Second-Whether Breuer had a good title to the leasehold, depends upon the power of the executors of Pollock Wilson to make a perpetual lease with a privilege of purchase. Under the third item of the will, four children of the testator took a fee in an individed four-fifths of his real estate, subject to the naked power of the executors under the fifth item, to sell to any persons, for such prices and upon such terms as they might deem best, at public or private sale, any part of such real estate which they might think best, for the payment of debts, or to make distribution


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under the will. As to these four-fifths, the power of the executors was not coupled with any interest. The four children were tenants in common with the right themselves to enter upon the land, to collect the rents and profits from this interest and enjoy the same, subject only to the exercise of the power of sale for the purposes mentioned. Hoyt v. Day, 32 Ohio St., 101; Nimmins v. Westfall, 33 Ohio St., 213; Neff v. Neff, 3 Weekly Law Gazette, 69.

The lease reserved to the executors an annual rent and the right of re-entry upon default. Unless this lease was a legal exercise of the power of sale of the divided four-fifths, it was void because in violation of the vested rights of the four devisees under the third item of the will.

The question is, then, does a naked power of sale imply a power to lease? It is a general rule that powers must be strictly construed. A leading case upon the point is in our own state ; Taylor v. Galloway, 1 Ohio, 232; where our Supreme Court, through Judge Burnet, held that a power to sell and invest the proceeds; did not justify the donee of the power in conveying one-half of the land to clear the title to the other half, so as to sell the other half, because a power to sell did not include a power to exchange or barter. Again, in Clark's Lessee v. Courtney, 5 Peters, 319, the Supreme Court of the United States held that a power to sell, dispose of, contract and bargain for land, did not authorize a relinquishment of the land for the taxes.

But it is argued that a power to sell, includes a power to lease, because the whole includes its parts, and the greater the less. It is said that a leasehold is but the grant of a part of the fee, and a power which is conceded to confer the right to convey a fee, must therefore include the right to convey a leasehold. The fallacy in this statement is that the act of leasing is not a part of the act of selling, and differs in its nature. It imposes very different continuing obligations on the parties, from those growing out of a sale. By operation of law, it is true that when to the act of leasing is added a deed of the reversion, the two result in a conveyance of the fee, but in the merger of the inferior in the complete ownership, disappears the very obligation of the lessor under the lease, which, while it existed, distinguished it from a deed in fee.

The true application of the axiom that the whole includes its parts, to the construction of a power to sell, is that the power to sell real estate implies a power to sell it in parcels, in the absence of anything showing the contrary. But each act must be of the kind authorized, namely, a sale of the fee of part. If this were not the case, then the grant of any interest wliatever in the property, justified by complete ownership of it, with a view to its final sale, would be authorized by a naked power of sale. Thus, under such a power, the executors might, in order to induce a purchase outright, allow the person whom they regarded as a likely purchaser, for a consideration, to take the crop, to cut timber, to remove the soil, or to take an easement. But this clearly cannot be done. In Hubbard v. Elmer, 7 Wendell, 446. an agent authorized to sell lards, under such power granted a license to a purchaser previous to conveyance, to enter and cut timber, with a bona fide intent to effect a sale of the lands. The license was held void. In Atwater v. Perkins, 51 Conn., 188, au executor, under a power to sell any of the estate according to his best judgment, on such terms as he chose, was held to have exceeded his power in granting in the deed to one lot an easement of drainage through another,

Superior Court of Cincinnati.



It is evident, then, that what is done under power of sale, is not within the power simply because it would help attain the end sought in granting the power, and is the grant of a less interest than a fee. It may be that the encumbering a fee with a perpetual leasehold, and a sale of the reversion, will net more money than a sale of the fee “out and out,” but it is enough to say that the testator did not expressly provide that mode of disposition, and from the mere power to sell, it can not be inferred. The privilege of purchase, in no respect cau make the lease any

within the power, than if it did not contain it. It simply limits, forever, the power of the executors to sell the fee, confining them to one purchaser and one price, without binding the lessee to purchase at all. It is a disadvantage to the lessor, conceded not to make a sale but as a consideration for, aud in order to secure the lease. It is true, the reversion subject to the privilege of purchase may be sold, but that would be a sale of the fee subject to a disadvantageous encumbrance. It is difficult to see, therefore, how the privilege of purchase makes the lease any more likely to produce a sale than without it. On the contrary, it seems to us to restrict the power of sale without securing a sale, and so to be in violation of the power. In Ives v. Davenport, 3 Hill, 373, it was expressly held that where, under a power of attorney to sell, the attorney made a contract with a stipulation that the vendee might cancel the contract by forfeiting his first installment of the purchase-money before delivery of the deed, the contract was not within the power. For the reasons given, we are of the opinion that a naked power of sale like the one given the executors under the fifth item of the will, does not imply a power to lease, and that as to an undivided four-fifths part of the farm, the lease was beyond the power of the executors, and void.

But it is said that the authorities are opposed to this conclusion, and three cases are cited, upon which counsel for the plaintiffs rely. They are: Hedges v. Riker, 5 Johnson's Chancery, 163; Jervois v. Clark, 6 Maddock's Ch., 96; and Williams v. Woodward, 2 Wendell, 492.

The first of these is a decision by Chancellor Kent. A testatrix had devised her real estate, a large portion of which was unproductive, to her executors to pay the income therefrom to her daughter during life for the support of herself and children, with remainder in fee to her children, or on default of issue, to be conveyed in twenty shares to others by the executors. The taxes and assessments for municipal improvements consumed nearly all the income, and it was impossible to lease unimproved real estate on such a precarious tenancy as for the life of the daughter. The executors were given a power “to sell and dispose of so much of the real estate as should be vecessary to fulfill the will.” The remaindermen were nearly all infants. The bill was filed by the daughter of the testatrix against the executors, and the remaindermen to secure a decree, ordering the executors to lease for twenty-one years. Chancellor Kent granted the decree on the ground, first, that such a lease was authorized by the power, because such a disposition was requisite to carry into effect the intention of the will, that the wife and daughter should be supported by an income from the property, and second that, even if the power did not authorize a lease, as chancellor he had the right, acting for the infant delendants the remaindermen, to consent to such a variation from the power. He says upon the first point, “A devise to the wife for life with power to dispose of the estate to the children was held in J,ife v. Saltingstone, 1 Mod., 189, to give a power to sell in fee if the

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necessities of the daughter and her children should require it; and the greater includes the less, and will authorize in a case of like necessity a more confined and limiled exercise of the power.” We do not think this case supports the plaintiff's contention for several reasons. The power under consideration was a power coupled with an interest, which is a material distinction in this, that the ordinary construction of such a power may have to be materially modified, as it was in the case cited, in order to carry out the intention of the donor with respect to the enjoyment of the interest. Again, a close examination of the chancellor's language shows that what he was considering the effect of, was the words "dispose of.” He cites a case to show that those words have been held, under circumstances of necessity, to justisy a sale of the fee and then, in effect, says that if those words will justify so extreme a measure as a sale, they will, on the principle that the greater includes the less, justify a lease, which is a more limited disposition of the estate. This is a very different thing from saying that a power to sell includes a power to lease, because the one is greater than the other. The term “ dispose of” is a much wider term than sale or lease, and includes them both. Ordinarily the words “ dispose of” used in connection with “sell,” are limited to mean a sale, but the necessities of the case justified the chancellor in giving them their more extended, and usual meaning. But even if the words of this opinion are to be taken as claimed, there are two differences between that case and this, which prevent its application here; one is that no facts are proven in this case showing that a lease was a necessity, and the other is that the cestuis que trust are not parties as they were in that case, so that a decree finding the lease here a necessity would not bind them, and a decree of specific performance on such a ground would remit defendant to the likelihood of litigation with them as to the existence of such necessity. This, a court of equity will not do.

Evaps v. Jackson, 8 Simons, 217.

The next case upon which plaintiff's counsel is Jervois v. Clark, supra. It is very imperfectedly reported. The testator directed his estate to be sold. It was referred to the master to inquire if a grant of mining leases would be beneficial to the parties interested, and he reported that it would. The vice-chancellor doubted at first the propriety of this reference and report: but ultimately confirmed it, as the leases were also to be sold, and were only auxiliary to the sale of the estate. This was evidently a case in which the cestuis que trust were parties, and in view of the case of Evans v. Jackson, supra, to which allusion will presently be made, it was probably a case where the cestuis que trust were incompetent, and so were persons for whom the court of chancery had power to consent to any beneficial change in their estate. Mr. Platt, the author of a very accurate and exhaustive work on Leases, evidently regards this as the explanation of the case. For after referring to both Evans v. Jackson, supra, and Jervois v. Clark, he says, vol. sec. 347, “ The result is that no one can be advised to rely on a lease by a trustee, without the concurrence of the cestuis que trust if competent to join, or the sanction of the court of chancery in case of their incompetency."

The only casc cited, which is really in point for plaintiff, is Williams v. Woodward, 2 Wendell, 4.92. One question, which the court disposed of, (though, in view of the judgment rendered, it was not necessary to the conclusion reached), was whether, under a power of attorney, which recited that the land was too far distant for the grantor of the power to explore, examine, sell or settle, and appointed another his “attorney to

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