Cumming and Pollock v. Williamson and others. with the assent of her intended husband, vested her interest in a great portion of the tract, in the defendant Williamson, in trust for her separate use. It was conceded that the premises in question were included in the marriage settlement. On the 7th November, 1835, Williamson and wife, Williamson as trustee of Mrs. Cochran, Cochran and wife, and Bayard Clarke, executed a power of attorney to Wells, authorizing him, among other things, to fill up and reclaim all water lots or lands covered with water to the extent that was or might be permitted by grant, or permitted by law, and to make all piers or bulkheads that might be necessary or in his opinion proper to be made; and to raise money by mortgage of the premises whereof the constituents were seized, or any part thereof, that might be necessary to accomplish that or any other object of the estate, and to execute all necessary papers for that purpose. On the first day of April, 1836, the same parties entered into a sealed agreement with Wells, reciting the execution of the power of attorney and its objects, making it irrevocable for four years, and limiting the power to mortgage, to the undivided estate of the constituents. It declares that the power shall be deemed to authorize Wells to execute mortgages for the purpose of raising moneys for the improvement of the estate, and for other objects specified in the power of attorney, but not to authorize him to execute bonds in their names, but only to mortgage their estate as aforesaid. The power of attorney and indenture confirming it were both acknowledged in due form and recorded. On the 27th day of September, 1836, Wells as the attorney of his constituents, entered into a contract with the complainants to fill up the defendant's water lots to the extent of three or four blocks on the river, and to fill up other low grounds on the same tract; payments to be made from time to time as the work progressed, and the whole to be completed in 1839. After completing more than half the work, the complainants desisted by the request and direction of Wells, who found it impracticable to raise money to proceed with the contract. They had received eight thousand dollars, and when the work was stopped, there remained due to them for the work done, at the contract price, about $29,500. Wells made various Cumming and Pollock v. Williamson and others. efforts to raise the sum on mortgage of the premises, without success. He employed an agent in London, with the same result. Finally he induced the complainants to terminate the contract and to take a mortgage for their demand, payable in a year with interest. The mortgage in question was thereupon executed by Wells, in the name and as the attorney of all his constituents. It was dated January 1, 1840, recites the contract with the complainants, the amount due to them and their consent to have the contract rescinded, and conveys to them a portion of the premises which the mortgagors owned in common, a part of which had been filled in and reclaimed from the river by the work done under the contract. Williamson and wife and Mr. and Mrs. Cochran, in separate answers, contended that the mortgage was invalid as to their respective third parts of the premises. The agent, Wells, was examined as a witness by the complainants, subject to an objection that he was interested in their favor. W. H. Harison, for the complainants, insisted that the mortgage was fully authorized by the power of attorney; and that Wells was a competent witness. He exhibited his powers of attorney, and did not pretend that he had any other or greater authority. D. D. Field, for the defendants. 1. The mortgage is void, because it is not warranted by the power of attorney given to Mr. Wells. The power declared him authorized "to raise money by mortgage." He executed the mortgage to pay a precedent debt. This was not within. the power, and the mortgage is void, both at law and in equity. In support of this point, the counsel cited Story on Agency, 68, et succ.; 2 Paige, 418; 2 Cowen, 195, Wilson v. Troup, (4 Kent's Com. 330, 4th ed. ;) Sinclair v. Jackson, (8 Cowen, 543;) 2 Term R. 169; Blood v. Goodrich, (12 Wend. 525 ;) Rossiter v. Rossiter, (8 Ibid. 494;) Waldron v. Macomb, (1 Hill, 111.) Cumming and Pollock v. Williamson and others. 2. On behalf of Mrs. Cochran and her trustee, and Mrs. Williamson, we insist that the mortgage is void, because it is not acknowledged by Mrs. Cochran and Mrs. Williamson. The power of attorney was executed in the State of New-York, and did not enable the attorney to pass their separate estates or interests. A power of attorney by a married woman is void, except in the case of her residence out of the state. 1 Rev. Stat. 758, 10, 11, contains the provisions for the execution of conveyances by married women; and sections 38 and 39, show that a power of attorney is not embraced within those provisions. The act of 1835, chap. 275, was passed to remedy this difficulty in the case of non-residents. 3. On behalf of Mrs. Cochran and her trustee, it is insisted, that the mortgage is void, because it is not authorized by the marriage settlement executed on the 4th of June, 1835, between Mr. and Mrs. Cochran and her trustee, and is in contravention of the trusts thereby declared. The interest of the beneficiaries was inalienable except in the mode prescribed, and the consent of Mrs. Cochran could not enlarge the power, which was simply, to sell absolutely in fee simple. 1 Rev. Stat. 728, sec. 55. 58, and 60–65; 1 Ibid. 723, sec. 10. 13; 5 Paige, 586. 600; 16 Wend. 61 and 165; 20 Ibid. 437; 21 Ibid. 137; 22 Ibid. 483; Fletcher on Est. 66. 97; 14 Wend. 365; 13 Ibid. 218; 10 Vesey, 581; 1 Rawle, 231; Atherley on Marr. Sett. 335. Harison, in reply. According to the defendant's construction of the power, Wells could not incur the debt, and afterwards raise money to pay it. He gave the mortgage to the complainants, instead of giving it to A. B., and then carrying the money to the complainThe debt here was contemporary; it was not a precedent debt, in the sense of Coddington v. Bay, (20 Johns. R.) ants. If the counsel is right in his second point, it will unsettle half the titles in the State of New-York. From 1795 to this time, titles have very generally been conveyed under powers of attorney, executed by married women, and acknowledged in the Cumming and Pollock v. Williamson and others. form prescribed for deeds, &c. The passage of the act of 1835, has no bearing. The legislature is not to construe laws. The act was unnecessary, and was probably passed upon the crude doubt of some lawyer. THE ASSISTANT VICE-CHANCELLOR.-The first objection made to the mortgage is, that its execution was not authorized by the power of attorney to Wells. This objection is urged in behalf of Clarke, as well as the other defendants. But he having suffered the bill to be taken as confessed, in which the execution of the mortgage is set forth as being in pursuance of a power from him, is precluded from questioning that fact. The defendants insist, that the power of attorney authorized the execution of a mortgage for a single purpose, "to raise money." That this mortgage was executed for a precedent debt, and that it is utterly void. They argue that it is a naked power, and that it must be strictly construed. The rule, in this respect, is thus expressed by Chancellor Kent, in his opinion, in Wilson v. Troup, (3 Cow. 200,)-" Courts of equity look to the end and design of the parties, in considering the extent of powers, and to a substantial rather than to a literal execution of the power." It is on this ground that the aid of courts of equity is continually invoked to supply the defective execution of powers, in cases where the inflexible rule of the common law would hold the execution inoperative. And this jurisdiction extends, as well to naked powers where there is a meritorious consideration, as to powers coupled with an interest. (See 2 Sugd. on Powers, 94-100.) Testing this case by the principle referred to, I think the power of attorney warranted the execution of the mortgage to the complainants. The end and design of the constituents was to improve their real estates, and especially by filling up their lots, which were covered by the water of the river. Their attorney was authorized to mortgage their lands to effect these objects. He was to raise money for that purpose. It is true, that he was not to contract for the labor to be paid in a mortgage, because that mode of payment would enhance the price. It was not the design of the parties to raise the money before contracting, or in anticipation of the Cumming and Pollock v. Williamson and others. performance of the work. That course would involve the certain loss of interest, and the possible loss of the fund raised. The attorney proceeded in the mode ordinarily pursued. He made a contract with the complainants, by which they were to be paid in cash as the work advanced. No question has been made but that the terms were advantageous to the defendants. The change in the financial condition of the country, and in the demand for real estate, from 1836 to 1839, made it very desirable to the defendants to discontinue the work. A large cash debt was due to the complainants on the contract. The attorney, after endeavoring in vain to raise the money from others to pay this debt, mortgaged to the complainants. This differed from a literal execution of the power in one particular only. Instead of executing a mortgage for $29,500 to some money lender, and then carrying the money over to the complainants, and paying their debt, he executed a mortgage for the same debt to the complainants. The effect upon the defendants' interests is precisely the same. If the former course had been adopted, their estate would have been incumbered in the same manner that it now is. If the complainants and Wells had arranged to have the latter execute a mortgage to some broker who would deliver the money to Wells, and he to the complainants; and then the complainants would forthwith return the money to the broker, and he assign the mortgage to them, would not the power have been pursued to the very letter on consummating such an arrangement? The defendants themselves would never have questioned it. I cannot perceive why such an execution of the power is more conformable to its intent and spirit, than the mode adopted in this case. It appears to me that the execution of the mortgage was a substantial and valid execution of the power. A reference to a few of the multitude of cases on the subject, will illustrate the rule of equity in regard to powers. In Roberts v. Dixall, (2 Eq. Cas. Abr. 668, pl. 19. S. C. 2 Sugd. on Powers, App. No. 17,) a father was empowered in a marriage settlement, to appoint and divide the estate among his children. Having two children he appointed the whole estate to the elder and charged upon it the payment of a gross |