Opinion
Argued June 6, 1892
Decided June 17, 1892
Henry A. Forster for appellant. Richard S. Sweezy for respondent.
In relation to the questions arising upon this application of the purchaser Wolf, to be relieved from his bid at the judicial sale on the ground that the interest of the wife of Bauer had not been duly conveyed by virtue of her power of attorney to her husband, we are of the opinion that the order of the General Term is erroneous and for the reasons stated in the dissenting opinion of Mr. Justice ANDREWS at the General Term.
The limitation sought to be imposed upon such power of attorney that it only authorized Mrs. Bauer's husband to sign her name to conveyances of lands belonging to her is not, we think, sustained by the language of the instrument. Indeed the learned judge who so held in his opinion at the General Term, in order to arrive at his conclusion, rejects as surplusage the language of the power which authorizes the husband to convey for her and in her name, and as her act and deed to sign, seal, execute, acknowledge and deliver all necessary releases of dower and thirds. He construes the language used in the first part of the power as confining its application to the execution of a conveyance of any and all lands belonging to Mrs. Bauer and he says the words "releases of dower" subsequently used have no relation to the power actually granted, and hence are surplusage.
We think, however, that the language as to "releases of dower" was used for the ery purpose of authorizing the husband to do as he has done and that the language of the first part of the power when speaking of lands, etc., belonging to the wife, does not limit and was not intended to limit the operation of the words "releases of dower and thirds" so as to make them of no meaning or importance, but on the contrary it was intended by their use to confer authority on the husband to release her inchoate right of dower in lands belonging to him. Indeed she continues the statement of her purpose by inserting in the instrument a power to execute other instruments for the conveyance, surrendering and relinquishing all or any part of her estate, right, title and interest, whether vested or contingent, choate or inchoate therein. The language used in the first part of the power should not be held to operate all through it and limit the otherwise plain meaning of the paper.
We think there is no objection to the title arising out of the power of attorney given by the wife to the husband. She had the right to execute a power of attorney under the act (Chap. 300 of the Laws of 1878), and in executing such power she could appoint her husband her agent or attorney in fact.
As to the objection that certain creditors by judgment against Bauer were not made parties, nor the sureties on certain appeal bonds, we think a sufficient answer is made by the fact of the entry of the memorandum by virtue of section 1256 of the Code of Civil Procedure, "lien suspended on appeal." We think the meaning and purpose of the legislature in the enactment of that and the succeeding sections, were to release the lien of the judgment so suspended on appeal in regard to all property upon which it otherwise would become a lien until the court orders that it be restored by a redocket. The sureties upon the first appeal to the General Term consented to the entry of the order which did not, in terms, provide as to subsequently-acquired property, but if we are right in our construction of the statute, it was not necessary to so state it in the order. The law itself provided for the fact. The sureties upon a further appeal taken to the Court of Appeals consented in terms to the order suspending the lien, including after-acquired property. Upon the affirmance of the judgment by the latter court the sureties on the last appeal bond took an assignment of the judgments, and in their hands there was no longer any liability on the part of the sureties on the first appeal. Such sureties became, on the giving of the second undertaking to pay the judgments, sureties for the second sureties, and when the second sureties paid or discharged their obligation to the owner of such judgments and took an assignment of them, they could not enforce them against the first sureties. Under these circumstances there is no reason on this ground for releasing the purchaser from his bid.
The respondent here does not insist upon the objection that these questions were doubtful, and a purchaser ought not to be required to take such a title, but as we understand, if the questions above discussed should be decided in favor of the title, he is willing to take it, although those who are not parties here would not be legally barred by our decision from hereafter raising the question. As our decision depends upon the construction of statutes the rule of stare decisis would be effectual as an answer to any further claim, and we think the purchaser entirely justified in his waiver.
Our conclusion is that the order of the General Term should be reversed and that of the Special Term affirmed, with costs in all courts.
All concur.
Ordered accordingly.