*1 O’D'onoghue v. Boies. of case. ST. Statement T. Dwight O’Donoghue
Margaret L. et al., Respondents, Ann Boies, Appellant. — — Real Estate Jurisdiction 1. -Partition Sale of Infant’s upon Judgment. of that a sale an Quaere,'whether the fact Attack and therefore for- partition was to a will infant’s estate in real 195, (2 defect 176) jurisdictional a by statute constitutes bidden R. S. § for want exposes to attack as void of the title, although up jurisdiction, as a of when in another source set action subject general the court and of the had the partition. of Infant’s Real Purchase Guardian at Partition Sale parti- purchase a by guardian in at a sale in Estate. A a his own name provision party, governed tion suit to which ward his was a 326, (2 presumed void, subject 58), on Revised Statutes R. S. § ward, coming age, ejectment brought by and in an on action defendant, person, upon claiming against a title third the burden rests purchase, infant; through it was for benefit of the such a show that purchase by guardian a alleges defendant’s answer his name, possession part guardian on under followed a own appears right, and it that the defend- of title exclusive of other claim when and the bought the conse- ant record, conveyance guardian running quent were provision containing showing no own name guardian in his infant, it must be assumed was for the benefit of the purchase was, of the infant and purchase was not for the benefit guardian’s void, chargeable with notice of defendant is the defect and the therefore report judicial confirmation of although had a there been
(cid:127) of sale. 3, Boies, Hun, affirmed. O'Donoghuev. 1899; 25, 1899.) April 16, decided
(Argued March late 'G-eneral Term of the Appeal from order entered in the fourth judicial department, Court Supreme favor of defend- 1896, 14, reversing judgment January the court com- decision dismissing entered ant waived, Circuit, trial at having jury on plaint trial. a new granting so far facts, material, action nature in the opinions. stated
are [April*
Points of counsel. [Vol. 159.. *2 B. A. Benedict for The appellant. judgment partition was the of the a court of judgment Court, Supreme record* and a court actions. having partition Every intendment will, therefore, be of the support judgment.. Jurisdiction and its will be until the con validity presumed 89 trary shown. v. affirmatively N. Y. Mackey, (Maples 253 ; 146 ; v. 86 N. Y. Ferguson 609 ; 70 Y.N. Crawford, Moeschler v. 12 Lochte, N. Y. S. 855 v. ; R. Bosworth Van 53 dewalker, N. Y. ex rel. v. 597 ; 100 Warden, etc., People N. Y. In the the court 26.) partition suit, acquired jurisdic tion of the v. 45 person Barb. (Bogert Bogert, Margaret. 121 ; Bosworth v. 53 N. Y. Vandewalker, 597 ; v. Maples 89 N. 145 ; Y. v. Y. Mackey, Ferguson 70 N. Crawford, 253 ; ex rel. Warden, v. 100 Y. etc., N. As to. People 26.) William James, infants over fourteen the- years age, The of a acquired jurisdiction. appointment guardian them ad litem for was is conclu regular, sive them, R. S. (2 317, 2 ; v. upon collaterally. Croghan § ; Varian 17 N. Y. v. 2 Livingston, Stevens, Duer, 635 ; 218 v. Disbrow 5 Abb. Pr. v. Folger, Gold ; Gotendorf 54 schmidt, 83 N. Y. v. 84 110 ; N. Y. Ingersoll Mangan, 626.). If it that a sale real true, contend, plaintiffs estate was will, as an provisions original of the Revised Stat proposition prohibited by provisions utes the sale of infants’ real estate the- forbidding against which, aof will created that in con estate, travention a trust, even then the and sale in are and conclusive between the binding cannot be v. impeached (Schaettler Gardiner, collaterally. ; Howell N. v. 15 404 ; Y. Y. Calder, 47 N. Blakeley v. 617 Mills, 56 N. Y. Clemens v. 226 ; Clemens, N. Y. 59 ; 37 ; Leavitt v. 94 Patrick N. Y. v. Walcott, 95 N. Shaffer, 423 ; Hunt Y. v. N. Y. 72 v. Hunt, Benedict,. ; Lange 212 217 12 ; v. N. Y. N. Y. Hull, 73 Cromwell 97 Reed v. 209 ; Y. 107 N. action was maintain Reed, 545.) one of able and the beneficiaries unden brought properly was vested in fee and whose estate held in will, common. O’Donoghub 89 N. Y. Points of counsel.
The action could have
been maintained
one of
children
his
at full
without the
express
arriving
age
authority
in the ninth clause of the will.
partition given
R. S. tit. 3,
ch.
(2
3,
5 ;
v.
William G. Choate and Frederick A. Card respond- ents. this On all are in favor of appeal respond presumptions burden rests error ents, on appellant showing (Carman the order v. 21 N. Y. new trial. Pultz, granting ; Krekeler v. 94 N. Y. 73 547 ; Thaule, Reese v. Boese, 623 12 O’Donog-hüb
90
Points
counsel.
[Voi.
v. McCon
608
v.
N. Y. 550 Reed
;
N. Y.
Ward
87
;
Craig,
are
N.
claims
meritorious
133
Y.
nell,
Respondents’
425.)
consideration of
court
and entitled to
favorable
on
x
20 Wend.
Bell
371 ;
v. Van
(Cochran
Surlay,
appeal.
64
396
v.
100 Ill.
;
v.
Barb.
Reynolds
Cooper,
Champlain,
155
v.
1 Redf.
v.
356 Scott
;
Monnell,
; Clapp Byrnes,
431
26
Y.
v.
53 ;
Y. 535 Forbes v.
N.
;
N.
Halsey,
Douglas
15 Matter
(Manice
43 N. Y.
Brwnt
Van
Manice,
303 ; Van
111 N. Y.
v.
112 N. Y.
Brunt,
Loew,
167,
;
178 Vanderpoel
v. Mese
512 ;
v.
N.
Meserole
185 ; Stevenson
70
Lesley,
Y.
9 ;
1
Gilman v.
24 N. Y.
Bliven
role, Hun, 66 ;
Reddington,
v.
v.
154 N. Y.
;
N. C.
v.
1
v.
Miller
)
O’Brien, ejectment brought to recover three-sevenths of a farm plaintiffs consisting acres, three about hundred which is in described particularly It is all conceded on sides that the father of complaint. one Michael in who died plaintiffs, O’Donoghue, month of 1860, will with codicils which were April, leaving admitted to was seized and subsequently probate, possessed farm in fee at the time of his death. Both the simple and the defendant claim under him. The plaintiffs plaintiffs claim title under the will their father as devisees directly real in estate The defendant claims title question. a sale in at the suit of another adult heir through year only question presented by appeal whether the derived from their title, father’s plaintiffs’ directly was divested this sale. All with will, questions respect all claims mesne improvements pay- profits ment of taxes have been eliminated from case by stipula- tion. There are no the case as to questions superior equities, and no facts or found that present any alleged question except title. The defendant makes no claim to the plaintiffs’ such as lie- has derived premises dispute, except through and sale partition. defendant’s answer allegations present ques- *6 O’Donoghue O’Brien, per Opinion J. After in tions of law involved this case quite distinctly. the execution forth the title of the ancestor, pro- setting of his an action of bate the commencement of will, ¡partition an who were then adult these child plaintiffs, against and their was their infants, who mother, general guardian in the under the and their ad litem will, partition guardian the referee it is that 25th of action, 1870, averred on the May, the land to the the court appointed plaintiffs’ conveyed stated. It is then then their mother, guardian, already “ that under and id of this con- mother, alleged pursuance became and was the and seized of the owner, land veyance, in described and that thereafter immediately complaint, she entered into the under claim of exclusive title, possession, other the claim written instru- right, founding upon ” ment, to the said before wit, mentioned; deed, referee’s she continued to under occupy possess premises until the when 1880, 23d of were conveyance they August, of foreclosure of conveyed, upon judgment mortgage, one Harriet Boies, the defendant’s It further grantor. appears from the answer that the who was the mother, widow plaintiffs’ of the testator and the at the purchaser farm the month of said 1876, Harriet April, mortgaged in Boies; she made default of the mort- payment that it was became the ; foreclosed, gage mortgagee land which the latter subse- purchaser controversy, to the defendant. quently conveyed the trial
On of the action the court before was judgment rendered in favor of the defendant. But this has reversed Term General opinion holds that the and sale and con- distinctly partition judgment of the land thereunder to the testator’s who widow, veyance was then the ad litem the general guardian guardian were void. plaintiffs, absolutely
In rendered when 1870, the sale made, provision following statutory regard “ real of infants was force: But the sale of the estate no term shall leased or real estate or be sold, years, disposed v. Boies. O’Brien, per [Yol. *7 inof manner last or of will, any against provisions any was or which such estate or term devised any by conveyance, to such infant.” R. S. This 195, (2 granted page § in this state of law has existed and now provision long in of the Code which reads as embodied section 2357 follows : “ an in real Real interest shall not be property property, in leased, or sold, title, contrary prescribed mortgaged, to the which it was or of a will, devised, provisions which it was instrument, transferred, or other conveyance to the infant or learned counsel incompetent person.” for the that since the will of the contends plaintiffs plaintiffs’ in title, under which derive' terms forbade a ancestor, they the land devised of his chil- minority sale of during sale in the that and action dren, of the will and to to provisions contrary without and and, the statute, hence, absolutely contention us to the examination of the void. This brings the will under which all the claim title. an that instrument from examination of It and apparent, the main of the testator was to codicil, purpose pro- of his children their vide for and support during infancy them at to each of his or her share of his secure majority He lands in directs his debts and funeral specie. several small to relatives, paid, gives expenses legacies in to his wife lieu of and then leaves the bal- dower, annuity in his estate trust for the benefit his children. This ance of is created clause of the will wherein tes- trust eighth his intention to convert all his tator expresses distinctly prop- into since he it all to his executors personalty gives erty the real trust to sell receive the rents and thereof estate, profits the sale and to divide the into until parts, eight and to the the income of one of these parts applying profits to each use of each child during principal infancy pay with a before at over case of death gift majority. majority, In sale is and trustees. A executors given ninth the executors are authorized to clause keep on the real estate and to insured, preserve improvements O’Donoghce v. Boies. O’Brien, Opinion per T. H. to of loss or case damage
premises good repair, insurance funds in their as well as hands, any apply any the same. He confers moneys, rebuilding repairing them the real estate or any part power upon .mortgage time time, in their from thereof, necessary thereon or off any existing mortgage purpose paying to execute and assessment to be on the same, any imposed and to the real estate, deliver deeds conveyances all demands claims or against compound adjust sentence : estate. with the This clause concludes following “ I further *8 whenever executors, authorize and my empower law- attain or die under of children shall lawful any my age allot and ful to make real and to estate, of age, partition my set lawful to his or her to such child so apart age, attaining descendants or their descend- sisters, brothers surviving his her share such child die under lawful ants, age, equal of estate.” my the
Thus far no can found in the will against prohibition sale of the real estate of the children. infancy during But codicil the restriction is by following imposed executors in said will words : Whereas, following by my “ I have estate in the directed sale of all real city my York. I Hew now revoke said direction and authorize my executors to sell lands and as number known only my premises num- one hundred front and street, Broome rear, twenty ber and number one hundred and street, ninety-one Cherry — — Elm street all in the of Hew York city ninety-nine to the which sales shall be payment proceeds applied I intend this on other real estate. do not mortgages my or the alter in said lands the beneficial interest change to. said trusts and devises in the clause of contained my eighth and the income that the said lands not sold will, but design the same trusts, thereof shall under be held executors by my lands case to the said said clause relation provided with construction of sale.” There can be no room for respect was the Hot only power provision. meaning revoked, but the will of sale conferred by expressly Opinion per O’Brien, J. [Yol. this revocation was direction to the accompanied by express sell executors to three real estate. The only specific pieces to sell to the executors will power given general. It all the real estate of the testator wherever situ- applied ated, and the codicil recites provision that he although had in the will directed the sale of all real estate of Hew no such York, limitation is found in city the will. The farm in was situated in the but country, sale revocation power injunction against to this real as well as to the applies piece estate, bulk of his which was situated in the I think it is city. fair construction of impossible, upon any to avoid language, that the conclusion the testator forbade the sale of his real estate of his save children, three during infancy only par- cels It must follow institu- specifically designated. tion the adult of his child, brothers during infancy of a action, followed sisters, by judgment was a destruction of the trust and will express of the testator.
The codicil which the testator revoked the
of sale
the real
with the
estate,
provided
exception
*9
three
should not be
mentioned,
sold
the exist
parcels
during
is'
latest
ence of
of the
trust,
testator’s
expression
and must
held
be
intentions,
any prior provision
to.control
v.
the will.
Nostrand
That the and sale partition action, were plainly in contravention of the of the will creating trust and of the is a statute, that admits of no proposition con- 6Dill, Hill, (Rogers learned counsel troversy. for the defendant does not seriously question position, to meet the in' but another His attempts difficulty way. argu- inment all that, substance that has been conceding said, *10 can sell to the real estate of infants said, power against to the court has in will, yet fact contrary provisions and hence must decreed the have decided in the partition, was such sale not of action that of in contravention the trust or the or statute, will [Aprils O’Dosoghue <o. n O’Bbieít, per 159» [Vol. be attacked collaterally» cannot this decision judgment of the- the real nature this contention obviously ignores But is. The former consideration. judgment now under question as conclusive evi- action or as a to bar present not pleaded the sale- for as the but authority fact issue, dence of any title. the defendant’s and the foundation the court which decided by has been is not what therefore, it had what power but ordered, the sale áof court as When a to do. interposes judgment party the want of his title or claim, the foundation be set always up- render the may to court judgment benefit is or when enforced, to be it when sought against it was rendered, in whose favor it under claimed by party the- It is him. open under always one claiming by any the want is offered prove whom party against such contra- even proof in the court, though of jurisdiction In case of recovered in the record. judgments dicts recitals are to be full faith states which other given in the courts of the record Constitution, the Federal under and credit here even extrinsic want of jurisdiction, bemay impeached to domestic is true with the same respect judg- evidence, as a therefore, interposed Whenever, ments. whom a title, the foundation of party against claim that it is void, and, therefore, show is offered may at all. court or in truth record No is not record supposed the mere assertion officer can acquire jurisdiction judicial facts existence of it, erroneously alleging If the court had no jurisdiction, depends. which jurisdiction make a record record, supposed no it had of a These the character entitled to in truth judgment. all in in this once for the- have settled propositions In the N. Y. (70 253). opinion case Ferguson Crawford field of discussion, covers whole Batallo, Judge are sustained stated by weight argument the positions to be which leaves further illustration nothing a wealth in The.statement Judge on said subject. Akdbews also be. Bank may v. Phenix (83 337) case Risley *11 O’Doiíoghüe 99 v. Boies. per O’Beien, “ it is said: But a authorized referred where court statute to, in a if to entertain case it under jurisdiction particular only, takes to exercise conferred in a jurisdiction statute has case to which the no no application, acquires juris and its is a diction, will so be treated nullity, when it comes in either question, directly collaterally.” These cases have been and followed in repeatedly approved as a of correct the law on the expression question v. Town 93 N. (Craig Andes, jurisdiction. 405 ; ex v. rel. 100 id. Frey etc., C. C. People Warden, 24 ; Bank v. 134 530 ; id. Smith v. Id. Parent, 571 ; Reid, Beardslee v. ; 143 id. 165 v. & Vilas P. M. R. R. 123 Dolge, Co., id. 455 ; v. L. W. R. id. Co., dt R. Bogart D., 287 ; v. Gard People 144 id. ner, 126 ; v. id. Losey Stanley, 560 ; Warren v. Bank, Union id. 259.) want to render the jurisdiction particular judgment be asserted and raised
may always directly collaterally, either from an of the record itself inspection when offered behalf under party it, extraneous claiming is admissible for that always There is proof, purpose. one but to this solitary and that is in a exception rule, case where on a fact that is in a jurisdiction depends suit litigated is in favor who avers adjudged party jurisdiction. Then the is question decided, and the judicially record conclusive on that until set question aside or reversed direct proceeding. (Ferguson Crawford, and nature of this supra, p. 265.) scope exception rule be illustrated may familiar case. general It is very statute that a shall sit in a if provided case judge he is related either of the within the sixth degree. Pro. (Code Connor, Oiv. 142 N. Y. People § such exists in fact the If relationship judge incapable as a member But court. whether the relation acting exists involves as to the and if ship facts, there is a inquiry conflict in evidence to that relating question, determi nation is of such character that the cannot raised but the error collaterally, judgment, O’Donog-hue
Opinion per O’Bkien, J. [Voi. the at bar, must be corrected direct review. In case any, by of which there was no of fact means the however, by question have action could obtained jurisdiction. will the for and if the court itself, of testator spoke a that it sale of the under the circum decided permitted realty, it a of law erroneously. stances, passed merely upon question sufficient to its While court may acquire jurisdiction exempt attack from collateral by disputed question deciding judgment it it never that can fact has been held of acquire erroneously, an error of law. It could by any purpose jurisdiction that a on the in this case have rendered judgment ground the and'if it the will, did, the land was question of permitted by still to be future remained any open questioned jurisdiction it or If were it otherwise, either action, collaterally. directly that in where infants’ real has follow case would every whether with or with under the direction the court, sold had said the court decided- out could be jurisdiction, or that it had the action proceeding jurisdic particular decision would not be collateral and this open any tion, are of this court that there numerous decisions but attack, (Ellwood v. 106 N. the hold contrary. Northrup, just ; Battell v. Valentine, In re Torrey, Warren v. Union Bank, id. 294 ; Losey Stanley, supra ; under other a court could rule, obvious that, It is any supra.) or person subject-matter acquire jurisdiction an erroneous decision of it, upon the mere assertion it in case. It seems it has any particular law that that the that we cannot avoid conclusion therefore, me, estate in action1of the real sale in the the terms of will were forbidden controversy no that the court could statute; acquire the mandate of sale, deriving to direct plaintiffs, assail this will, from title may their directly for want of void juris either directly collaterally, has no inherent original juris A court diction. equity the lands of infants. Its the sale of jurisdic to direct diction and it statute, from is derived wholly tion respect Court, T. per O’Bbieii, íf. law that unless substantial elementary every provision
statute is observed and with the sale will be void. complied A sale made in violation of an the stat express prohibition ute is in no better when certainly attacked in position, than one which is form, made without some merely observing affirmative enacted for provision procedure purpose of the infant. securing rights
But there is another in the case which is equally fatal defendant’s claim of title. It does not depend court to render the but judgment, *13 another upon sales of statutory provision concerning judicial the real estate of infants. We have seen that the mother of who was their plaintiffs, as well as their general guardian ad litem in the became the guardian action, of this purchaser farm at the sale. At that time the following statutory pro “ vision was in force: shall Nor infant any guardian any in such party suit, or be interested purchase, purchase of, lands, of such any being for suit, subject except the benefit of or in behalf of infant; such and all sales this section shall be void.” R. (2 S., That 326, p. has since 58.) been provision somewhat § and made still more enlarged section of the stringent “ Code, which reads as follows: A or other commissioner, a officer, as in this title, or making prescribed guardian an infant to the action, shall nor shall party not, any person, his benefit, directly be interested indirectly, purchase, in the of, purchase any sold; a except where he is guardian may, authorized so to lawfully do, pur for the chase benefit inor behalf of his ward. The violation .of iis section ais and a misdemeanor; made con purchase, tra w to this section, is void.” The statute is such plain dbition pro of the lands of against purchase by guardian his ward at a t]p.at it is not judicial construction. open (Forbes v. 26 N. Y. v. Halsey, Brown, Terwilliger id. The learned counsel for the defendant 237.) attempts avoid the effect this statute that the by suggesting plain tiffs did not at the trial that the did not make prove guardian ‘ Court, per O’Bbien, [Yol. for the purchase infants’ benefit. But it is obvious that
this contention cannot prevail. purchase by guardian in her own name to be presumed and to void, be rendered valid it must be shown to have been for the benefit of infants. (Fleming 27 N. Y. People, The burden was on the defendant to show that the was for the purchase benefit of the infants, such was the fact. v. Brint (Baker 52 Barb. nall, 188, 193 ; Knapp O'Neill, Hun, 317.) cannot be plaintiffs required which prove purpose inwas the mind of the when she took a guardian conveyance of the lands to herself. But the defendant’s answer, has relieves the already from quoted, doubt any on this We have seen that point. he alleges purchase by her own followed guardian name, on her by possession under a claim of title exclusive of part other So right. that, defendant’s it is clear allegations answer, that there could not have been for the benefit of any purchase the infants. Unless the deed under which the took guardian ran title to her in her there unless capacity- guardian, was some provision body conveyance showing was for the benefit of the purchase must infants, *14 that assumed the title be was taken the in her guardian individual capacity.
It is that the confirmation of the sale suggested report the rendered valid. anBut order of the court purchase cannot what a validate statute and so it has forbids, expressly held. 8 (Gallatian Cowen, Cunningham, ; Terwilliqere When the Brown, defendant the land supra.) purchased in the in the action the partition and controversy judgment which followed -were all matters conveyance guardian is of record. He in with notice of defects the chargeable any and cannot now assume the aof hona sale, position pur fide chaser without notice. established their title to the therefore, plaintiffs, prem- in the ises described Since the defendant claimed complaint. the title to whole of the and denied absolute premises or title in the it was not for the lat- plaintiffs, necessary right O’Domoghüe Parker, Opinion per Ch. J. 1ST. in common. as tenants ousted had been
ter that they prove but co-owners, were that did not admit they The defendant not necessary. of ouster was therefore, (cid:127)denied it, and, proof the defendant’s furnished it was But was necessary, a a from in himself under deed that (cid:127)evidence he claimed .title the he in defense of hostile set source, plaintiffs’ which up ; Clark v. 10 Wend. contention. v. Van Riper, (Siglar Barb. Crego,
For must affirmed. these reasons I think the order a the Ch. J. Over a century quarter ago Parker, the of this action of lands, are ejectment, subject in an action were in of a decree of sale sold pursuance in to which interest partition, every having person on were were struck down premises premises parties. Ann mother and sale to guardian O’Donoghue, thereafter certain infant defendants, duly being exe- confirmed" an order of the was court, conveyance cuted and delivered to on 25th her day May, later Six she executed a years upon premises mortgage secure loan The interest not $1,500. being paid, foreclosed, became the mortgage mortgagee pur- chaser of the at the later land foreclosure conveyed to this defendant. The claim of in plaintiffs property is that their title was divested action sale made notwith- action, pursuance judgment effect a final the statute declares standing is and conclusive upon plaintiff binding whom the each defendant summons served, upon bars of those who is not each persons effectually purchaser all title interest at the sale from right, claim sold. The forward put *15 void for want suit is wholly jurisdiction
partition It render it. is not denied that -court had. of the of the to the action, parties persons jurisdiction were shares held said that there undivided it is hut in who then these were infants, for plaintiffs, trust and. O’Doktoghue [April,, per Parker, Ch. J. [Vol. that the sale of such will, and,, property forbidden therefore, that the statute; Court Supreme in did that which it assuming was forbidden stat- ute to do, and, its therefore, was without judgment jurisdic- tion and void. This which is entitled to- presents question careful consideration in this for it is of court, importance because of the only amount of large property indirectly involved but also for the 'it reason that litigation, may constitute a from the precedent tending away permanency “ of titles. It is for security such as well as purpose, the interest of the that the courts have- peace society,” established the firmly rule unless a is void for judgment want of no errors in the jurisdiction, whatever- proceedings, their can nature, be considered when the is judgment brought into question collaterally.
There is a decided difference of very whether opinion it. was the of O’Don purpose oghue, plaintiffs’ to- testator, forbid the of the property, with argued much force that if such was the intent of the will, court should so hold, then provision void because in contravention of the statute prohibiting alienation estates than two lives in period longer being. are as is questions debatable, evidenced fairly the fact that the learned at Term reached the judge Special conclusion that “ a fair of the will I think interpretation to the court gives cannot, to decree a sale of the be so made as to substantial to all while give right parties,” the learned who wrote for the General justice, Term, was. of the codicil equally positive was to purpose prevent lands, will the executors had authorized to make. But it is not to discuss the- my purpose of the will, for I to rest vote prefer my broader that the court ground granting par- tition had and of the subject-mat- its ter, and, cannot hence, be attacked in this col- lateral action.
It is feature of this that interesting controversy ques- *16 Boxes. Opiniou per Eep.] Parker, 3ST.Y. J.Oh. whether the will a forbade sale of this
tioxi has been property much debate of and the occasion of liei’etofore, a subject and it courts, to contrariety opinion by suggests, say that court before least, whom the action partition who rendered the came and well have judgment, been might as the same learned who delivered the opinion justice of the Term- on this trial, and he opinion Special presumably a sale otherwise would have was, been premises It that an decreed. for the appears attorney appeared guar- and dian ad litem the infants action inter- partition their answer, the usual and intei'ests posed submitting lights of the court. that in addition he protection Suppose had in his answer that the will foi’bade the alleged n until the infants have real estate should reached their majori- under the statute a sale ties, that, therefore, foi’bidding n to of a will, complaint di&nissed, be and assume that the issues should thus presented on for had been decided trial, pleadings, coming in favor of sale of the plaintiff, premises adjudged, would it be one that such a could be argued any in a held to be void collateral ? That a court hav- proceeding jurisdiction lands, ing general subject partition other to detei’mine in it, requires among things, each has such an interest action whether as entitles him plaintiff maintain exceeds its if it partition, erroneously that he has ? That claimed if, decides case, for and was entitled to actual but prayed partition, plaintiff a sale the infant’s share in the not to premises, decision could not holding advantage- had and a sale would be premises, ously decreeing ? without void And that an act wholly other the action would have than remedy ? Well, review ad litem direct happens guardian the issue which have not tender did might plaintiff But the there was no contest. was nec- tendered, so decision because the will before the court for essarily it, befoi’e codicil were before deciding O’Donog-hue v. Boies. *17 Pabkeb,
Opinion per J.Ck. [Vol. that that decide it to should decreed had be unavoidably its it. pur instrument not did complaint alleged prevent in that the event was either to or, parti which pose, partition, described in that were tion not to the lands had, could be sell as the source will and codicil and a of the the copy complaint, as duty of title was also given. opportunity, to the court decide every to Avell,was, therefore, presented that was and involved, duty performed. question presumably the infants were All the were the and court, before parties if the in the statute, manner represented provided been, have was not could contested, question that have been are bound as to matter could tried firmly every as with the or decided an to or connected incident essentially of the of the within par purview subject-matter litigation (Jordan tition action. Van N. Epps, a of authorities Our attention is called to number asserting is in at all, of course not proposition, controversy a but we void, that rendered without jurisdiction to examine case this state hold have been inAdted has not that in an action of Court Sujueme ing sale of the to determine whether the of the involved in the action is violation provisions premises it is -a and if determination that not and sale be will, so void, that such be decreed, wholly may action. We shall show that the declared another presently other are In authorities distinctly way. positively attention' is called to the case of Bolton this connection more recent cases show N. Y. one of the Schriever (135 65) of the courts. The Avaswritten the settled opinion policy ing con all of the court now Mr. Justice by Judge, Peckham, no That, J., too, part. curring, except taking (.tray, it the to plaintiff action of attempted ejectment, through a will to of the Court attack decree Surrogate’s admitting not an inhab that the testator was probate upon ground and, at time of his death, itant of the county surrogate’s to was without therefore, probate surrogate I void. Later on shall and his decree was will, attempt O’Dohoghue per Parker, J.Ch. show the court had of the subject-matter in the whatever have partition action, character may will; it be assumed that the but, then have presented we jurisdiction, Mull same there was It was question up Bolton’s case. decided in'that case that the was bound inquire surrogate and decide whether the testator was an inhabitant at the time of his and if county that officer decided death, that he was, evidence legally tending support decision, the decision cannot, absence of fraud or collu *18 sion, be In questioned as in case, this, there collaterally. was no the contest, infants but the by guardian; appearing court held that the decree inwas effect a1decision that the defendant at was, the time of his an death, inhabitant of the said and that this not be county, could in an action questioned ejectment heirs. It was also brought held that there was no evidence on the subject inhabitancy except the sworn could allegation petition, have surrogate relied on the fact so and his decision stated, would be regarded as conclusive, to in attack a subject direct only to proceeding review it.
The fundamental error of the before us lies in that the court did have assumption of the jurisdiction subject-matter. was subject-matter of real partition estate. involved specific question was whether there should the lands in partition described the complaint. Whether was to entitled plaintiff partition have his should dismissed, complaint evi- depended upon dence of which was the presented, important will and part the codicil. Thus was one of the presented merely many that the Court is important questions Supreme required under the pass upon legislative grant power touching or'sale of which full and lands, complete authority over the is conferred a general subject court, upon grant that carries with it full power and authority consider all to the due execution of the pass upon questions necessary conferred. of the Jurisdiction power subject-matter v. Boies.
Opinion per Parker, Ch. J. [Yol. conferred to lawfully general adjudge concerning and to to act abstract involved; upon question, general decide whether call for the exercise facts particular the' ultimate abstract but it does not power; depend case. existence of cause of action the particular good 33 N. Y. v. Y. v. Hunt, 217 ; 72 N. (Hunt Wolff, Bergman v. S. R. Jordan Van 12 ; 73 N. Benedict, Lange 85 N. Y. Epps, of this
This after the decision action was begun many years in which case court in Colder (15 Blakeley 617), his at sale declined purchaser complete purchase nor was neither on the possession plaintiff ground entitled to the immediate consequently possession, But it the action. court had no to entertain jurisdiction not, was entitled or yet held that whether the plaintiff subject-matter having general concluded by were interest, they it derived the sale under purchaser‘at judgment, “ The Court The court said in title. part: Supreme perfect has law juris equity, one general jurisdiction this case was all When pre diction of' actions partition. *19 it awas to decide whether proper it was its sented, province if its decision or a one in which do award partition the As no one but was the erroneous, was remedy appeal. title, in the can call purchaser’s to the action question parties is no reason there the are bound as judgment, they is That decision should not be consummated.” the sale why in is well founded unchallenged in principle, point, precisely be and should court, accepted of this later decision by any as a are now we considering the question disposition has as it it been decided, upon point controlling authority Y. 59-72 ; cases: Clemens (37 N. Clemens following v. Sullivan Sullivan v. Mills N. Y. 226-229) ; (56 Howell Y. N. v. Brevoort Jordan (70 136) ; N. Y. Brevoort 37) ; (66 v. Hull N. Cromwell 427-436) ; (97 N. Y. (85 Van Epps v. Little N. 165). Woodhull (102 Y. 209) ; show that this court cases will has of these An examination per Pabkeb, Oh. Eep.] 3ST.Y. v. Colder with the decision Blakeley
always fully agreed that the that it has never doubted subject-matter, (supra), as as of the must have well the courts of which jurisdiction is the to decree a sale or in order partition, was an action of estate. v. Mills parti of real Howell (supra) entertain the of the court to The tion. proceed jurisdiction in this court. Chief considered only question ings a unanimous said court, in behalf of Chueoh, writing Judge “is denial of upon ground jurisdiction predicated was entitled to not show that does plaintiff bring petition stated in the facts action, brought petition to entertain an the statute court within case authorizing * * * Whether Court for action Supreme partition. court, we think the unanimous decision this erred or not, N. Y. decisive v. Calder (15 ques Blakeley 617), involved here was tion precise question jurisdiction. hesitate in that case and we should about ; involved disturbing its it is correctness, we doubted but decision, proper that we of it. The Court say Supreme possessesgen approve and exercised eral in law and equity, jurisdiction the statute. in law prior (47 proceedings, must but it is it is be true, statute, competent regulated has com to determine when the statute for the court with. In case plied acquired jurisdiction it had subject-matter. parties; reviewed the error could erred, If only by excep confusion the considera taken.” Some tions properly has has no arisen from tion this received doubt that the action of stands on ill-founded impression same as statutory substantially special proceedings, footing for the or sale as are instance, such, provided mortgaging have been cited, lands. Cases of character infants’ *20 v. Bill Hill, if in (6 Losey such Bogers 416) ; point, and Warren Union Bank (157 N. (147 560), Stanley as the court said in War In such proceeding, 259). of the statute must be fol case, strictly rens requirements unless done court without this be lowed, jurisdic v. Boies. per Parker, Oh. J. [Yol. and the orders made are void. And tion, Xosey’scase, in which a collateral attack was successfully against waged real order estate of infants, Chief mortgaging Judge after that a to asserting proceeding mortgage Anbrews, direct the sale of infants’ real estate is purely statutory, a that court of has no such inherent to accom equity power a such to result, plish apparently prevent possible misappre hension as to the called anew attention to employed, language the distinction be found may running throughout “: He said books. inherent of a power of an order infant’s real equity property, upon aof benefit to him, distinct from theory supposed quite in the its enforcement and power acknowledged protection trusts 'from the courts the exercise of their establish enforce ordinary rights between whether infants litigation, adults.”
For I these reasons am unable to with the conclusion agree reached in the O’Brien, by Judge par- tition action was rendered court without jurisdiction, but concur in result and, therefore, void, on the ground inwas contravention conveyance guardian and void. statute, All concur second of O’Brien, ground opinion Gray As to the first and Bartlett, ground JJ., concur, Haight while JJ., concur with Oh. J., Martin, Parker, on that "Vann, J., voting ground.
Order affirmed and absolute ordered for plaintiffs on with costs. stipulation,