13 Wend. 465 | N.Y. Sup. Ct. | 1835
Previously to 1819, no order of confirmation of such sales, by the surrogate, was required. Under the act of 1813, 1 R. L. 451, § 24, the conveyances upon such sales were required to be executed by the executors or administrators, applying for the order, and such other discreet person or persons as the surrogate might think proper to appoint; and the order of sale was to be set forth at large in the deed. On the 12th of April, 1819, Latos of 1819, p. 214, an act was passed, by the first section of which it was provided, “ That wherever a sale had been made,by virtue of an order of the court of probate, or of any surrogate, (under the act of 1813,) and a conveyance executed, wi thout the concurrence of a discreet person, designated for that purpose in such order, it should be lawful for the purchaser, at such sale, or his representatives, on or before the Istof January, 1821 to petition the chancellor, setting forth the facts relative to the sale, and praying for an order of reference to a master, to examine and report thereon; and that upon the coming in of such report, if it appeared to the satisfaction of the chancellor that the sale had been made fairly and bona fide, he should confirm the same,.upon such terms as he should deem equitable. A notice of eight weeks in the state paper is required to be given, upon the filing of the master’s report, of the intended application for a confirmation thereof. This section, it will be perceived, applies only to sales which had previously been made. The third section provides forfuture cases, and enacts, “ That on all sales (thereafter) to be made, it shall be the duty of the executors or administrators to make a return of the proceedings had on the order for such sale to the surrogate who issued the same, and the proceedings shall be examined by him; and if it appear that the sale has been legally made, and all the proceedingsfairlyconducted, he shall issue a further order, confirming such sale, and directing conveyances to be executed by the executors or administrators; and such conveyances shall set forth such orders at large, and shall be valid and effectual against the heirs, and all other persons claiming under them.” The right of appeal, which is given by the 32d section of the act of .1813, is expressly extended to this section of the act of 1819. The preamble of this act recites, that it had
It is very obvious, from the preamble to the act of 1819, that the legislature supposed'that the omission to unite some discreet person with the executors, in the conveyances given by order of the surrogate under the actof 1813, rendered those conveyances inoperative for the purpose of transferring the legal estate. They were considered as creating an equity in
•Under the act of 1819, applications to the chancellor to confirm such sales were to be made before the 1st of January, 1821. But the provision of the revised statutes is general. It applies to antecedent as well as subsequent cases, without limitation as to time; and it covers the omission to unite some third person with the executors in the conveyance, as well as the omission to set forth at large in the conveyance the order of the surrogate directing the sale, and the order confirming the same. 2 R. S. 110, § 61. And the 65th section declares, that when the chancellor shall make the order for confirming the sale and conveyance, such sale and conveyance shall from that time be confirmed and valid, according to the terms of the order. An application was made to the chancellor, under this act, to confirm a sale under an irregular order
The recent case of Jackson, ex dem. M’Fail and others v. Crawford, 12 Wendell,533,depends upon an entirely different principle—as does also the case of Jackson,ex dem. Jenkins,v. Robinson,4 Wendell, 436. In both those cases the conveyances were in precise accordance with the directions of the statute : in the first case the proceedings were under the act of 1813, and a third person united with the administrator in the conveyance; in the other case the sale was confirmed by an order of the surrogate, and the conveyance executed accordingly, under the act of 1819. The objection in both cases went to the regularity of the preliminary proceedings, which it was held could not be collaterally inquired into, enough having been shown to give the surrogate jurisdiction of the case. The same doctrine was also held in Jackson, ex dem. Bear, v. Irwin, 10 Wendell, 441. The remedy in such cases is by appeal. The judge, therefore, was correct in holding that the legal estate in the premises was still in the plaintiffs, and that they therefore were entitled to recover.
The defendant may still have relief, by an application to the court of chancery under the act already referred to. 2 R. S. 105.
Motion for new trial denied.