Opinion
March 7, 1906.
Eugene D. Scribner, for the appellant.
Clark L. Jordan, for the respondents.
The legal title to the property in question remained in the incompetent person, notwithstanding the appointment of the committee. Such committee was merely the custodian or bailiff of the property and had no interest therein or independent power to dispose of the same in any manner whatever. It was his duty to preserve the property and not to dispose of it, except by order of the court. ( Kent v. West, 33 App. Div. 112; Matter of Otis, 101 N.Y. 580, 585; Pharis v. Gere, 110 id. 336.)
"A committee of the property cannot alien, mortgage or otherwise dispose of real property, except to lease it for a term not exceeding five years, without the special direction of the court obtained upon proceedings taken for that purpose." (Code Civ. Proc. § 2339.)
"The committee thus becomes merely the officer or agent of the court and has no authority except such as comes from that source or is vested in him by statute." ( Pharis v. Gere, 110 N.Y. 336, 347.)
The committee being without power to sell the wood in question he was equally without power to authorize the sale by any other person. It follows that the cutting and removal of the wood by defendants was without any lawful authority.
Defendants claim that even if their acts were unlawful the committee had power to settle with them and that they have paid the husband and son of the incompetent person by authority of the committee. The only authority to pay these third parties was such as was implied from the committee's unauthorized consent that the defendants might contract with them for the removal of the wood. Berry and his son were not the lawfully authorized agents of the committee to make the sale, for the reason that such sale was beyond the power of the committee. And the payment to them was no more lawful than the sale by them. The entire transaction was beyond the power of the committee, and, therefore, void. Although the defendants probably acted in good faith, they and Berry and his son were all wrongdoers, and the defendants cannot claim exemption from their wrongful acts because they made payment to those jointly concerned with themselves in the same wrongful acts. The payment did not reach the committee, or benefit in any respect the estate which he represented.
Nor was there any contingency or circumstance which rendered it proper that the wood should be sold. Had there existed any reason therefor the court, on presentation to it of the proper facts, would have ordered such sale. ( Matter of Salisbury, 3 Johns. Ch. 347.) But no such claim is made.
The court submitted the case to the jury on the theory that if the defendants had the consent of the real owner of the farm to cut the trees, and acted in good faith in so doing, they were entitled to a verdict. The real owner was the incompetent person, who could not consent; the committee had no power to consent, and the good faith of the defendants, however great, cannot be permitted to diminish the estate of this incompetent person. Plaintiff was entitled, as a matter of law, to recover, and his motion that a verdict be directed in his favor should have been granted.
The judgment and order must be reversed and a new trial ordered, with costs to the appellant to abide the event.
All concurred; KELLOGG, J., not sitting.
Judgment and order reversed and new trial granted, with costs to appellant to abide event.