Eugene D. Scribner, as Committee of the Estate of Margaret E. Berry, a Lunatic, Appellant, v. George Young and Adelbert Young, Respondents

Eugene D. Scribner, as Committee of the Estate of Margaret E. Berry, a Lunatic, Appellant, v. George Young and Adelbert Young, Respondents. Third Department, March 7, 1906. Lunatic— committee cannot authorize sale of timber on lands of lunatic without permission Of court — committee entitled to recover valué of timber so cut, although the defendant has paid therefor to the husband and son of the lunatic. The committee of a lunatic cannot alien, mortgage' or otherwise dispose of the real property of the lunatic, except to lease it for a term, not exceeding five years,, without the special' direction of the court obtained in proceedings brought for that purpose. . . Hence, persons who have cut timber on the lands of a lunatic under an unauthorized contract with her husband and son, and with the permission of the committee, are liable for the value thereof to the successor of said committee, 1 although they have paid therefor in good faith to the husband and son." In such case a verdict for the plaintiff should be directed. As the1 committee ha» no power to authorize the cutting of the timber so he has. no power to authorize the purchasers to pay the. value thereof to third persons. Appeal by the .plaintiff, Eugene D. Scribner, as committee of the estate of Margaret E. Berry, a lunatic, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Fulton on the 5th day of July,-1905, upon the verdict of a jury, and also from an order -entered in: said clerk’s office on the 28th day of June, 1905, denying the plaintiff’s motion for a new-trial made upon the-minutes. ' This is an action to recover damages ,for cutting and removing trees and timber growing on- the farm of the said incompetent person Margaret E. Berry. At the time of the acts complained of, Jerome Egleston was the committee of her estate. He has since died, and the plaintiff, having been appointed his successor, brings the action. On the trial the defendants admitted the acts complained of or some of them, but sought to justify them by reason of an alleged authority of the committee. From the testimony of the defendants it appeared that they made contracts with Samuel P. Berry, the husband, and with Arthur Berry, the son of the incompetent person, to cut and remove such wood and timber. Before acting under such contracts one of the defendants saw Egleston, the committee, and after informing him of bis conversation with Berry about cutting wood asked the committee if he had any objection, to which the latter replied, “Ho, sir, anything you do with Berry is all right.” There "was also evidence that the committee permitted Berry, the husband, to manáge the farm and to do with it as he desired. The latter did not reside on the farm, but had a cottage there, and went there every season for a time and to a certain extent worked the farm. After said conversation with the committee the defendants cut and removed the wood and timber in question. . Some they divided with the husband and son of the incompetent person and paid them the balance thereof. The committee received nothing for the wood or timber thus removed, nor has the estate of the incompetent person received any benefit therefrom, nor was any of the Same used by any person on the farm. On the trial at the conclusion of the evidence plaintiff moved for a direction of a verdict in his favor, which motion was denied and exception taken. Eugene D. Scribner, for the appellant. Clark L. Jordan, for the respondents. [MAJORITY — Cochrane, J.:] Cochrane, J.: The legal title to the property in question remained in thp 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 wTas 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 committed 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 Sf 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 com'es 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 arty 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 tlie court, on préseritation 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 th'e 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 orden, reversed and new trial granted, with costs to appellant to abide event. i