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bargain, sell, convey and assure the same or any part thereof to any one inclined to purchase," the attorney had power to lease with a privilege of purchase, and it was held that he had. Say the court by Savage, Chief Justice.

"It is no doubt true that every power must be strictly pursued, and the attorney cannot exceed the powers delegated to him; 5 Johns. R., 58; 7 id., 390; yet it is a good execution of a power if it pursue the interest and design, though not according to the direct terms of it, Sugden on Powers, 446, 9. It has been held that a power to give includes a power to sell, as does also a power to charge (6 Vesey, 793,) and that a power to sell implies a power to mortgage, which is a conditional sale. 3 P. Wms., 9. By analogy, a power to make an absolute sale implies a power to make a conditional sale, as was done here; and, as omne majus in se continet minus, it seems to follow that a power to sell gives the attorney power to convey any lesser estate. In my opinion, therefore, the lease and contract in this case were well executed under the power."

In considering this opinion, it should first be said that the chief justice calls the lease with a privilege of purchase, at one time a conditional sale and at another a contract of sale, whereas, as we have already attempted to show in considering the privilege of purchase in the lease here, it is neither a sale nor a contract of sale, but a mere option, binding only on the lessor and restrictive only of his power to sell. The reasoning of the opinion is founded on the maxim that the greater includes the less, and is by analogy. The first analogy is in the holding that a power to give will be fulfilled by a direction to sell the fee and a gift of the proceeds. But in either giving or selling, no less an estate than the whole is conveyed. The second analogy is in the holding that a power to sell includes a power to mortgage, which is a conditional sale. This was by Lord Macclesfield in Mills v. Bank, 3 P. Wms., 9. The ruling has been so shaken by subsequent decisions, both in this country and England, that except in Pennsylvania where Mills v. Bank is completely followed, the rule now is that a power to sell prima facie does not include a power to mortgage, and such power is implied only where the sole purpose for which the sale is directed, is expressly of such a character that a mortgage will quite as well serve the purpose, and can be more easily effected. See Hoyt v. Jacques, 129 Mass., 286, and cases cited. Price v. Courtney, 87 Mo., 387; Terry v. Laible, 31 N. J. Eq., 506, and cases cited in the note.

The analogies relied on by the court fail to sustain the conclusion. Even if this case stood as authority in New York therefore, in view of the considerations stated heretofore, we should not follow it. But it is no longer an authority in New York, for it has been overruled in two cases, one Bloomer v. Waldron, 3 Hill, 361, and the other Coutant v. Servoss, 3 Barb., 128. These were cases in which, though the exact question discussed was only whether a power to sell included a power to mortgage, the language of the opinion in each case leaves no doubt that the conclusion in Williams v. Woodward, i. e. that a power to sell includes a power to lease, was repudiated. For Judge Cowen, in Bloomer v. Waldron, after expressly saying that the statement of Savage, C. J., that a power to sell includes a power to mortgage was erroneous, in referring to authorities cited in which a revocation, appointment or sale of a part was held to be within the power to revoke, appoint or sell the whole says, "admitting that these cases hold to the full extent insisted on * * * in each the trustee or attorney is found doing an act of the precise

nature prescribed by the power-an act of revocation, sale or appointment. He does not proceed by splicing two or three acts together, which in their whole effect work out a revocation, sale or appointment, by consequence or operation of law. On the power of sale, he sells part of the estate. He neither mortgages nor demises and afterward grants the reversion. He sells part of the land at one time, and part at another So he may, under other powers, revoke or appoint as to different parcels at different times; but the act done is in specie the very act required by the power." So also Strong, P. J., in Coutant v. Servoss, supra. "It has been supposed that a power to sell confers a power to mortgage on the ground that the greater includes the less. That must be taken with this qualification, however, that the less must be of the same character with the greater, and essential to its execution. Were it otherwise, the power to sell might authorize the donee to make any less deposition of the land, such as granting leases, cutting down timber, or converting meadow into woodland. It has never, I believe, been contended that such dispositions would be authorized by the general power." Again he says, "the case in 2 Wendell, i. e. Williams v. Woodward, was overruled by the decision of the late Supreme Court in Bloomer v. Waldron, 3 Hill, 361, where the late Judge Cowan discusses the subject much at large, and with his usual ability."

In addition to the three cases upon which we have commented, counsel for plaintiff cite also, Collins & Bernard v. MacTarisy, 63 Md. 166, and Prather v. Foote, 1 Disney, 435, upon the point, but in these cases, by the express words of the power, leasing was included, and the question was, whether perpetual leaseholds could be granted thereunder. We do not think they have application to the case at bar.

We are not, however, without direct authority to support the view we take. In Seymour v. Bull, 3 Day, 388, the question was, whether the executors, with full power to sell and dispose of any and every part of the estate belonging to the testator, in such a manner as they might judge beneficial for the legatees, had the right to lease. The Supreme Court of Connecticut held that this was a naked power of sale, the fee vesting in devisees with the right of possession. The court say, "This power is to be strictly construed, and it gives no rights to the executors to enter upon the land, or to lease it." The lease was held void, and the defendant in ejectment, who relied on the lease, was ousted.

In Evans v. Jackson, 8 Simons, 217, the testator bequeathed a leasehold, which had several years to run, to his executors in trust, to sell and dispose of in the usual manner, and declared trusts of the proceeds for the benefit of persons not parties to the suit. The executors tried to sell the leasehold at public and private sale without success, and finally made a contract with the defendant, by which they were to grant a lease of the premises at an improved rent for the whole term remaining, lacking only a few days. The defendant refused to perform, on the ground that the executors had no power to lease. Vice-Chancellor Shadwell dismissed the executors' bill for specific performance without hearing from the defendant's counsel, saying "The will contains, on the face of it, an express trust that the executors shall sell the house; and prima facie, that is inconsistent with granting a lease." He added, that circumstances of necessity might justify the executors in departing from the words of the trust, but that in a case where the cestuis que trust were not parties he could not enter into that question, because if he were to decree the defendant to take the lease, he might subject him to the

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ordeal of a suit by the cestuis que trust to show that the executors were not justified in granting the lease. This case is a strong one, because here was a power coupled with an interest, and but for the trust to sell the title, an absolute power of disposition over the leasehold would have been in the executors as a chattel real.

In Michols v. Corbett, 34 Beavan, 376, it seems to have been conceded by counsel, that under a power to sell the trustees had no power to lease, but the lease having been made without authority, the question for the Master of the Rolls was, whether, in the exercise of his power to change the form of the estate of infants, he should ratify the lease so made, and consent to a sale subject to the lease.

In Franklin v. Ball, 33 Beavan, 360; s. c. 10 L. T. N. S., 447 (where the statement of facts is fuller); s. c. 10 Jurist. N. S., 606; s. c., 34 Law Jour. Eq., 153; the bill was against a mortgagee for specific performance of a contract to lease the mortgaged premises, of which he seems to have been in possession. The mortgage contained a power of sale, and the mortgagor was in default. One defense was, that he had no power to lease, and that a court of equity would not compel a breach of trust. Counsel for defendant cited Evans v. Jackson, supra, on the question of power, and it seems to have been conceded that the lease of the mortgagee, notwithstanding his power of sale, could not bind the mortgagor after redemption under the mortgage. was evidently the opinion of the Master of Rolls Romilly, derived from See Law Journal report. This the language of his judgment.

On the whole, therefore, we are clearly of opinion that under the fifth item of the will, the executors were not given the power to lease the undivided four-fifths of the farm devised by the third item.

The remaining one-fifth was vested in the executors with directions to convert into money, and invest the proceeds into bonds. power coupled with an interest. This was a direction to sell "out and out," should not have been complied with. But no reason appears why the express The cases already cited and the language defining the purpose of this devise and power, negative in the clearest way the right of the executors to lease this one-fifth. It follows that the lease of this whole tract was void, and conferred no title on Breuer which he could convey to Hayes.

Third-But even if plaintiff's title was detective for want of power in the executors to lease he claims to have remedied the defect before decree, and to be entitled to performance. It is a rule, established early in the Court of Chancery of England, and followed in this state and country, that a vendor of land may have a decree for performance, if he perfects his title at any time before decree. However anomalous this

rule may seem, in view of the non-mutuality of the remedy to which it gives rise, it is too late now to question it. Jenkins v. Hiles, 6 Vesey, 646; Coffin v. Cooper, 14 Vesey, 205; Wilson v. Tappan, 6 Ohio, 172; Hepburn v. Auld, 5 Cranch, 262; Waterman on Specific Performance, sec. 420 and cases cited.

But the rule is not applied in cases where the time stipulated for performance is of the essence of contract, or where there are special circumstances which would make its application inequitable. Richmond v. Gray, 3 Allen, 25; Dressel v. Jordan, 104 Mass., 407; 66 Texas, 43. It has been held in England, that where a man contracts to sell land to which he has no title, and can not acquire title except by the consent of a third person, the other party, when he ascertains this, may repudiate the contract. Forrer v. Nash, 35 Beav., 171; Brewer v. Broadwood, 22

Ch. D., 105; Wylson v. Dunn, 34 Ch. D., 577. But conceding that this qualification has no application here, because the plaintiff really thought he had title, and was acting in good faith, we are still of the opinion that the court rightfully refused to open the case, and allow the deeds offered 'to be put in evidence.

The nature of the property to be conveyed was speculative. It was a farm which it was proposed to turn into suburban lots. It was peculiarly subject to a sudden rise or fall in value. This is apparent from the fact that Breuer contracted to sell to Hayes in February, 1888, at a price in cash double that at which he purchased the leasehold from the executors four months before, and was to receive the Kentucky farm of 560 acres besides. The time of performance was, therefore, quite material. The character of the property to be given in exchange even more emphatically stamps upon the contract the importance of the time fixed. This was the Kentucky farm with the live stock and farm outfit. It was, in effect, a farm as a going concern in the spring of the year that was to be transferred. Delay would throw on Hayes the expense of keeping up the farm, feeding the live stock and the responsibilities and uncertainties of the management which the parties stipulated should end on May 1st. It has been held that in the sale of a public house as a going concern, time is of the essence of the contract. Day v. Luhke, L. R., 5 Eq., 343; Cowles v. Gales, L. R., 7 Ch. App., 12. And so of the transfer of any commercial undertaking. See remarks of Lord Cairns in Tilley v. Thomas, L. R., 3 Ch. App., 97. It would seem that there should be the same reason for giving time a similar importance in the transfer of a farm with all the outfit and live stock when the time fixed is the spring of the year. Read in the light of these considerations, the strong words of the stipulation as to the time of completion, have much significance. "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."

Without holding, however, that time was of the essence of this contract in the strict sense, which would not permit the delay of a day after the time limited, we do think that the considerations stated require us to hold that plaintiff's delay of nine months after defendant's objection to the title and the time fixed for performance before making a good title was unreasonable, and that enforced performance thereafter would have been inequitable. In Richmond v. Allen, supra, six months delay was held too great in a case, where the circumstances making time important were not so strong as here.

Another reason for sustaining the action of the court below in excluding the deeds offered, is that it is very doubtful whether they do perfect plaintiff's title to the leasehold. It is claimed that Mayer's deed confirming the leasehold perfects the leasehold, and so it would if the executor's deed to him was a lawful exercise of their power. If it was not, then his deed can not have the effect it purports to have. The question then is of the validity of the deed of the reversion to Mayer. We have found that the executors had no power to make a lease with a perpetual privilege of purchase. If they had no power to encumber the land with a lease, how can they have power to sell the land subject to such a lease, as they have expressly done here? The reversion was subject to a privilege of purchase at $30,000. This they sell for $25,000,

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144 having received $10,000 for the lease, which is said to be equivalent to a sale "out and out" for $35,000. The two acts convey a fee and the consideration is money. But can it be safely said that the two acts are the same in fact as a sale of the property without a lease at all? The cestuis que trust are entitled to have the power strictly followed. It may be that the lease and sale of the reversion are more profitable than a sale of the fee unincumbered by a lease would have been, or it may be that they are less so. That is not the question. The beneficiaries under the will are entitled to have the executors exercise the power of sale, as the will directs, and we have found it did not direct or authorize a lease. lease illegally, and then to sell subject to the illegal lease, seems to be attempting to make a right by two wrongs. Hill, 361, the power to sell was violated by a mortgage. The mortgage In Bloomer v. Waldron, 3 was foreclosed, and the premises sold, the debt paid, and the surplus paid to the trustee, who executed a deed to the purchaser reciting the proceedings and purporting in consideration thereof, and one dollar, and in execution of the power, to convey the land. was beyond the power of the trustee, the deed was also held void. How Because the mortgage can that case be distinguished in principle from the one at bar? It is said that the executors are estopped after taking the money to impeach their own deed.

The persons whose rights are prejudiced by the lease, and a sale subject to it, are the cestuis que trust. consent to such a transaction, or that they all have knowingly received There is no evidence that they all the benefit of the money so paid. Because the executors may have received money in their representative capacity, which they had no authority to take, can rights of those whom they represent, even not estop them from maintaining the ting aside their own deed. to the extent of set breach of trust. Estoppels do not work in favor of a It is not necessary for us to hold that the deeds presented do not confer a title. It is sufficient for us to say that they do not so remove the question of the title from doubt or prospect of litigation over the construction and execution of the power under the will, as to justify a court of equity, in the absence of the cestuis que trust, in compelling a defendant to buy. Tiffin 178; Ludlow v. O'Neil, 29 Ohio St.. 181, Jeffries v. Jeffries, 117 Mass., v. Shawhan, 43 Ohio St.. 184; Evans v. Jackson, 8 Simons, 217.

The decree dismissing the petition was right, and the motion to set it aside is overruled.

MOORE, J., concurs.

PECK, J., not sitting.

Noyes & Fitzgerald, and Kittredge & Wilby, for plaintiff.

D. D. M. Woodmansee and C. W. Baker, for defendant.