79 A.D. 179 | N.Y. App. Div. | 1903
The administrators of the plaintiffs’ father filed their petition for the sale of his real estate to pay his debts with the surrogate on
At that time these plaintiffs were infants, the one sixteen years of age and the other eighteen years old. A citation was issued to all persons interested, including these plaintiffs, which was returnable December 10,1890. On that day, upon the petition of the infants, a special guardian was appointed for them, who thereafter appeared and represented them in such proceedings. That appointment was regular in-all respects, except that no affidavit of the service of such citation upon said infants can now be found among the surrogate’s records. There is an affidavit of the service of the citation on some of the parties and a written admission of service by others. Such two methods of proof included all the parties except the two infants. As to them, no affirmative proof of service is now found. It is stated, however, in the verified petition by the infants for the appointment of a special guardian that such citation had been duly served upon them. After the appointment of the guardian, and on December 10, 1890, appraisers were appointed to value the property proposed to be sold, and on the coming in of their report, and on January 10,1891, a decree was entered authorizing a sale of all the real estate described in the petition, by the administrators at either public or private sale, upon their filing a bond, etc. This decree recited the service of thé citation upon all parties named in it, and also the appointment and appearance for the infants of the special guardian aforesaid. Subsequently, on May 2, 1892, an order was entered reciting that the requisite bond was filed, and directing the administrators to proceed to execute the said decree of sale with respect to all the property therein mentioned. Some of the property was sold at public sale, a report thereof made and an order entered affirming same and directing a conveyance. But the property in question was not included in such sale. It was sold at private sale, and on June 3, 1892, a conveyance was executed and delivered to the defendant, The Fort Edward Water Works Company, by the administrators, reciting that, by a decree of the surrogate, they were authorized to sell and convey, that the contract with the defendant was for a sum as large as that fixed by the appraisers, and that such contract had been approved by the surrogate.
As to the question whether -a citation was served upon the infants, so as to give the surrogate jurisdiction of their persons, the trial judge has found that such service was made, and his finding is correct in that respect. The Code, section 2473, provides that when the jurisdiction of a Surrogate’s Court is attacked collaterally “ the- fact that the parties were duly cited is presumptively proved by a recital to that effect in the decree.” Such a recital is contained in this decree of sale, and in the absence of any proof to the contrary, is sufficient to sustain that finding. The plaintiffs do not upon the trial of this action testify that such citation was not served upon them. There is nowhere any affirmative proof that it was not so served; on the contrary, their own affidavit made at the time states that it was, and all the proof in the case sustains, rather than contradicts, the recital in the decree that such service had been made.
The surrogate then had jurisdiction both of the subject-matter and of the persons of the plaintiffs, and his decree authorizing these administrators to sell this land was well made. By it they obtained the right to sell to the defendant company, and at the price which it appears they received from it. The fact that an order confirming the contract with the defendant, and directing a conveyance, cannot now be found or identified in the records of the surrogate’s office, is not sufficient to avoid the defendant’s- title to the lands, for which it has paid and for more than ten years has supposed that it owned. The surrogate having had jurisdiction to order the sale and conveyance, the mere regularity of the proceedings will not be. inquired into in this collateral proceeding.
The judgment appealed from must be affirmed, with costs.
Judgment unanimously affirmed, with costs.
