#### FARGO v. OWEN.

(Supreme Court, General Term, Fifth Department.

June 20, 1894.)

Parties—Action by Trustee of Express Trust.

Where a tenant in common is given a power of attorney by his cotenants to take charge of, manage, and care for the land held in common, to make leases of the same which might be needful, and to collect the rents, such teuant in common may sue for rent without joining his cotenants, under *612Code Civ. Proc. § 449, providing that “a trustee of an express trust * * * may sue without joining with him the person for whose benefit the action is prosecuted.”

Appeal from Wyoming county court.

Action by Walter B. Fargo against Charles Owen for rent.. From a judgment of the county court affirming a judgment of the justice court entered on the verdict of a jury, defendant appeals.

Affirmed.

Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BRADLEY, JJ.

E. M. Bartlett, for appellant.

T. W. Brown, for respondent.

DWIGHT, P. J.

The action was to recover rent of a house and lot in the village of Warsaw under an oral contract made by the plaintiff with the defendant. The title to the property was in six devisees of one Allen Fargo, deceased, of whom the plaintiff was one; and he had. a general power of attorney from the other five to manage, care for, lease, and collect the rents of all the real estate- of which Allen Fargo was the owner at the time of his death, in the town of Warsaw. He made the oral lease in question to the defendant in behalf of himself and the other owners", and he brought this action in his own name. The only question presented by this appeal is whether, by virtue of his power of attorney,- the plaintiff was entitled to bring and maintain the action in his own name, as the trustee of an express trust, under section 449 of the Code of Civil Procedure. .

The power of attorney was under the hands and seals of the several devisees, other than the plaintiff; and, in the usual form, it made, constituted, and appointed the plaintiff their true and lawful attorney, for them, and in their name, place, and stead, to take charge of, manage, and care for all the real estate, as above;: to make leases of the same, as might be needful; and to collect the rents. It contained the usual grant of full power and authority to their said attorney to do all things necessary to be done in the premises as fully, to all intents and purposes, as they might or could do if personally present. It granted the power of substitution, and ratified and confirmed in advance “all that our said' attorney or his substitute shall lawfully do, or cause to be done, by virtue thereof.” There can be no stronger instance of an express trust than that furnished by this instrument; and the caséis, so far, undoubtedly brought within both the general provision and the particular definition of section 449, supra. The provision is that “a trustee of an express trust * * * may sue without joining with him the-’person for whose benefit the action is prosecuted;” -and .the definition is that “a person with whom or in. whose name a contract is made for the benefit of another is a trustee of an express trust within the meaning of this section.”" But the contention on the part of the appellant is that, by the express terms of the power of attorney, the.authority of the plaintiff *613was limited to acts to be done in the name of his principals, the language being “in our name, place, and stead.” The argument is based upon a very narrow construction of the instrument. The words “in our name” do not limit, but confer, authority. By virtue of this authority the attorney may use the names of his principals in executing leases and other contracts, and giving receipts and acquittances. There is no special reference in the instrument to the bringing of actions. Authority for that purpose is to be inferred from the authority to collect rents, and to protect the property from loss and damage, but there is no purpose to prescribe the manner in which the authority shall be exercised. That is to be governed by the law, and the rules of procedure. The power of attorney creates an express trust, and, in doing so, confers upon the trustee the authority, in matters of form, which by law pertains to that relation. Under the special authority of the power of attorney, the plaintiff may undoubtedly bring an action in the name of his principals, but he is not thereby deprived of the general authority which is conferred by statute upon every trustee of an express trust.

There was no error in the ruling of the justice denying the defendant's motion for a nonsuit, and the verdict of the jury determined all other questions raised on the trial. The judgment of the county court, affirming that entered on the verdict, must be affirmed. All concur.

Judgment of the county court of Wyoming county affirmed, with costs.