Hilliard v. Beattie , 67 N.H. 571 ( 1893 )

It is unnecessary to determine whether the assignment of April 8, 1882, was valid or otherwise as an assignment. It is sufficient for the present purpose that for a valuable consideration it authorized and empowered the assignee to settle this suit "for such sum as he shall think reasonable," and apply the proceeds in payment of the assignor's indebtedness to him; and the agreement of November 25, 1889, also expressly stipulates that unless the assignor shall pay a given sum of money to the assignee on or before a certain day, the latter shall have full authority to settle the suit "without any notice and according to his own discretion." The effect was not to constitute a mere personal trust in the assignee, for while both instruments empowered him to settle the suit at his pleasure, each of them gave him a power coupled with an equitable interest in at least in its subject-matter. "When power is given to a person, who derives under the instrument creating the power, or otherwise, a present or future interest in the subject-matter over which the power is to be exercised, it is then a power coupled with an interest" (Mansfield v. Mansfield, 6 Conn. 559 — 16 Am. Dec. 76), and is irrevocable by the grantor, and survives to the representatives of the deceased grantee. See, generally, Bergen v. Bennett 1 Cai. Cas. 1 — 2 Am. Dec. 281, and note, 291; Hunt v. Rousmaniere, 2 Mason 249; Dartmouth College v. Woodward, 4 Wheat. 700; Hutchins v. Hebbard,34 N.Y. 24; Knapp v. Alvord, 10 Paige Ch. 205 — 40 Am. Dec. 241; Raymond v. Squire, 11 Johns. 47; Goodwin v. Bowden, 64 Me. 424; Frink v. Roe,70 Cal. 296; 39 Am. Dec., note, 82, 83; Gutman v. Buckler,69 Md. 7; Robinson v. Allison, 74 Ala. 254; Loring v. Marsh, 2 Clif. 311; Davis v. Lane, 10 N.H. 156, 160; Jordan v. Gillen,44 N.H. 424, 427; 18 Am. Eng. Enc. Law 888-891, and authorities cited.

But if the rights of the grantee in the suit did not pass to his administrators, and even if the grantee himself had none, it is quite immaterial. There is another ground that forecloses the plaintiff. He is without standing, equitable or legal. Having voluntarily, under his own hand and seal and for a valuable consideration, clothed Benton with the unfettered power to settle the suit, and Benton's administrators, trusting to such apparent authority as well as to the distinct recognition of their right to exercise it contained in the plaintiff's letter of January 21, 1893, having in good faith effected its settlement, and without knowledge of the parol agreement of their intestate proved by the plaintiff at the hearing, he cannot now be heard to impeach the settlement. He is estopped, alike at law and in equity, both by his acts of omission and commission. In effect, he stands the same as to the settlement that he would if he had given the administrators the most formal authority to make it as his agents.

Motion granted.

SMITH and CARPENTER, JJ., did not sit: the others concurred.