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Ay the Court,

Mullin, P. J.

The deed of Easterly, of February 10, 1869, conveyed to the plaintiff his life *449estate in lot No. 8, part of the homestead lot. This deed was recorded, and on May 30th, Easterly, as trustee under the will, conveyed to the plaintiff lot 8, and other lots on the homestead and Denis lots, in fee. Subsequent to making, delivering and recording of the above mentioned deed of February 10, 1869, the judgment against Easterly was obtained, on the sale under which the defendant acquired his title to Easterly’s life estate in lots 6 and 8, and the fee in certain other lots herein before described.

Upon this state of facts, the defendant got no title, under the sale on the execution, to the lands covered by the deed of February 10,1869. The judgment"never became a lien on them, as the title was out of Easterly before it was docketed.

We are not informed when the judgment against Easterly was docketed, and it is not said in the case whether that judgment became a lien on the lands conveyed by the trustee’s deed of May 30, 1870. All that is said on the subject is, that at the time of the sheriff’s sale in June, 1870, the deed of May, 1870, was on record.

The life estate being conveyed to the plaintiff before the judgment, the trustee still held the fee in lots Nos. 8, 20, 22 and 24 of the homestead part.

Easterly’s life estate in lots Nos. 20, 22 and 24 of the homestead lots, was subject to be taken on execution on personal judgments against him, and the defendant did acquire the life estate in those lots under the sale by the sheriff, if the judgment became a lien prior to Easterly’s deed to the plaintiff of May 30, 1870.

Not being informed when this judgment became a lien on the interest of Easterly in those lots, we are unable to give a more definite opinion on the question whether those lots passed to the defendant by the sale by the sheriff.

If the sale to the plaintiff of the above mentioned lots in the homestead part of the lands was made before the docketing of the judgment, the plaintiff has title in fee *450by virtue of liis deed from Easterly as trustee under the will. If the judgment became a lien on the life estate prior to that conveyance, the defendant took the title subject, nominally, to the power of the trustee to sell the lots, but he could not sell so as to divest the title of the defendant to the use of the lots during the life of Easterly.

The defendant owned an undivided third part of the lots' on the Denis lot. These were subject to be seized and sold on execution against Easterly, unless they had been conveyed to the plaintiff before the judgment was docketed. He did convey on the 30th of May, 1870, as trustee under the will, lots 12, 13, 18 and part of 20, and the plaintiff took title in fee to them, unless the judgment was a lien. If it was a lien, the defendant acquired title to the undivided third of them in fee, but nominally subject to the power in the trustee to sell under the power contained in the will. But Easterly could not, after the lien of the judgment - attached, sell the land so as to deprive the defendant of the title acquired by virtue of his purchase at the sale of the sheriff.

The next question on which the decision of the court is sought is, whether the letters testamentary granted to Easterly were superseded. If so, was he thereby disqualified from executing the power of sale conferred upon him by the terms of the will.

■The letters testamentary gave Easterly no power over the real estate. That he got from the will. Superseding them could not take away or. impair his power as trustee under the will. Although the power to sell is given to the executor, yet he is in fact a trustee, and accountable as such, in equity.

The next question on which our decision is desired is as to the effect, if any, of the sale by one of the daughters, on .the power of sale given to Easterly by the will and codicil, and what interest the purchaser took by virtue of the conveyance by her. The will did not ere-*451ate a trust in Easterly in the land. The title passed on the death of the testatrix to the devisees, subject to the power in trust given to the executor to sell.

The will forbade the sale of the homestead until both daughters were married; but by the codicil the executor was given the right to sell both that and the Denis lot, at any time after the death of the testatrix.

By another clause of the will the executor was required to invest the proceeds of the. sale made by him, and to pay one half thereof, with the accrued interest, to each of the daughters on her becoming twenty-five years of age.

The testatrix contemplated a sale of the whole real estate by the executor, and a division of the proceeds amongst those entitled to a share of the same under the will.

The power of the executor to sell continued until the whole land was sold, notwithstanding the title was by the will conveyed to the devisees. (Crittenden v. Fairchild, 41 N. Y. 289. Kinnier v. Rogers, 42 id. 531.)

The case of Martin v. Martin, (43 Barb). 172,) which holds that the power to sell terminated on the children’s attaining the age of twenty-one years, cannot be law.

The devisees took subject to the power in the executor to sell; and hence if either of the children sold her share, the grantor took the title subject to be defeated by a sale by the executor, and it was defeated as to such of the lots as have been sold by the executor under the power.

Every person dealing with the land is charged with notice of the contents of the will, and the nature and extent of the interest of the several devisees therein.

I am unable to discover that the commencement of proceedings by the trustee, to partition the lands, had or has any effect whatever on the rights of the parties interested in said land. The proceedings were abandoned after a defence was put in, and nothing has been *452done in the action since. ' The case says that the executor abandoned it. It is not suggested that such a suit thus abandoned could in any way affect the rights of the parties.

[Fourth Department, General Term, at Buffalo,January 7, 1873.

We are also called upon to determine whether or not the defendant, having entered into possession of certain lands as the tenant of the executor, can set up an adverse possession in himself, as against his lessor or his grantee.

He could not be heard to dispute the title of his landlord in an action by the latter to recover rent or the possession of the demised premises.

But the executor had no power to lease the lands, and the defendant acquired no interest in them by virtue of the lease. He may have taken an interest in the share of the Denis land which the defendant owned, but he could give no interest in the shares of the daughters. The grantee of the daughters would hold discharged of the lease.

Judgment is ordered in conformity to the foregoing opinion, without costs to either party.

Judgment accordingly.

Mullin, Talcott and E. D. Smith, Justices.]

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