| NY | Nov 28, 1893
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *164 Benjamin Page died in February, 1892. For several years before his death, and to the time of his death, he was a lunatic, and owned real estate abutting on the elevated road in the city of New York. In 1876 Stephen H. Olin was appointed the committee of his person and estate, and continued such until the time of the lunatic's death. In 1888 Olin commenced an action against the elevated railway company to restrain it from maintaining and operating its road in front of the real estate of the lunatic; and he recovered a judgment restraining the railroad from operating its road in front of the real estate, unless it should tender to Olin, as such committee, the sum of $4,000, with interest thereon, and upon such tender receive from him a deed or release of all the interest, property, rights and easements of Olin and the lunatic in the street in front of the real estate taken by the railroad company by the erection and operation of the road. In January, 1892, upon the petition of Olin, an order was made by the Court of Common Pleas in the city of New York, entitled "In the Matter of the Application of Stephen H. Olin as committee of the person and estate of Benjamin Page, a lunatic, for leave to sell certain *166 real estate," authorizing and directing the committee to execute and deliver to the railroad company a conveyance of all the interest, property and rights in and to the street in front of the real estate taken by the erection and operation of the railroad, upon payment to him of $4,000 therefor. Thereafter, in compliance with the judgment against the railroad company, and of the order just mentioned, Olin executed and delivered to the railroad company the deed, and received from it the sum of $4,000. A month later the lunatic died intestate, unmarried and leaving no descendants, and the real estate mentioned descended to his heirs. The plaintiffs were appointed administrators of his estate, and as such demanded of Olin the money thus paid to him, and upon his refusal to pay the money to them they commenced an action against him to recover the same. Upon his motion the money was paid into court, and the defendants, the heirs of the lunatic, were substituted as defendants in his place, and the action was continued against them. The next of kin and the heirs of the lunatic were not the same persons. The plaintiffs claimed the money as personal estate for the next of kin, and the defendants claimed that it retained the character of real estate, and passed and belonged to them as heirs. The court below held that it belonged to the defendants as heirs, and this controversy between the next of kin and heirs is now to be finally determined.
We think it cannot be questioned, under the decisions of this court, that this money was paid for an interest in real estate. (Newman v. Elevated Railroad Co.,
This money retained the character of real estate. By the act chapter 417 of the Laws of 1864, provision was made for the sale of the real estate of the lunatic, which was in the hands of his committee, and it was provided that the proceeds should retain the character of real estate. This provision was re-enacted in 1874 (Laws of that year, chap. 446, title 3, § 14), and it is embodied in the Code, section 2359.
But the claim is made by the plaintiffs that the proceedings instituted by the committee for the sale of this real estate were invalid and ineffectual because they did not conform to the provisions of the Code on the subject. The answer to this is that the plaintiffs are not in a position to make the objection. The money was paid for the conveyance of the real estate. The heirs, the only persons interested in the real estate, make no objection, but, by claiming the proceeds, they ratify and confirm the proceedings, and, by taking the proceeds, they would be estopped from denying their validity. If the conveyance is ineffectual to convey a valid title, the railroad company may still compel a proper and sufficient conveyance.
But we may take a broader view of this case. We may assume that the conveyance of the committee to the railroad company was made without any authority of law, because the provisions of the Code regulating the sale of the lands of lunatics were not complied with, and that it was and remains utterly void. Nevertheless, the money was paid to him for this real estate, and if his proceedings for the sale were void and inoperative then he held the money in trust for the railroad company, and to and for its use, and it had the right to reclaim it at any time, and the plaintiffs had no interest what *168 ever in it, and no right to interfere with it; and they cannot complain of the judgment awarding it to the defendants. In that event the title to the real estate abutting on the street with the appurtenant easements passed unimpaired to the defendants, and if they take this money then they can be compelled to give an effective conveyance of the real estate. Hence, whether the conveyance was void or valid, in either event the plaintiffs have no right to this money, and, therefore, the judgment should be affirmed, with costs.
All concur.
Judgment affirmed.