Moran v. James
New York Supreme Court
Action to foreclose a mortgage. It was given by the infant defendant, Nina E. James, hy her special guardian, in a proceeding in the Kings County Court for the exchange of the said infant’s real estate for other real estate.
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Action to foreclose a mortgage. It was given by the infant defendant, Nina E. James, hy her special guardian, in a proceeding in the Kings County Court for the exchange of the said infant’s real estate for other real estate. The petition specified the properties and their values, and prayed that the exchange be allowed, and that the infant should through her special guardian give her bond, secured by her mortgage upon the property to be conveyed to her in the exchange, for the alleged difference in the values of the lands. The different steps as in a proceeding to sell were duly taken.
1Opinion of the CourtGaynor, J.
The County Court had no jurisdiction over the real estate of the infant, except that conferred by the statute. Ellwood v. Northrup, 106 N. Y. 172. It was limited to the proceeding to sell or mortgage. Code Civ. Pro., § 2348. In the law of principal and agent, authority to sell does not imply authority to exchange. This so accords with common understanding that it is difficult to find that a case has arisen about it. McMichael v. Wilkie, 18 Ont. App. R. 464. The same is the case with the law of powers and trusts. A power of sale in a will or trust deed does not authorize an exchange or…
2Cases cited5 opinions
- Russell v. . RussellNew York Court of Appeals · 1867
- Albany Fire Insurance Co. v. . BayNew York Court of Appeals · 1850
- Coutant v. ServossNew York Supreme Court · 1848
- Ellwood v. . NorthrupNew York Court of Appeals · 1887
- Woerz v. . RademacherNew York Court of Appeals · 1890
3Cited by3 opinions
- Bridges v. ReaSupreme Court of Oklahoma · 1916
- In re the Application for the Sale of the Real Property of AdderleyNew York Supreme Court · 1906
- Von Glahn v. HeinsAppellate Division of the Supreme Court of the State of New York · 1908