
    MATTER OF VALENTINE.
    N. Y. Court of Appeals;
    
    
      January, 1878.
    
      [Reversing 10 Hun, 83.]
    Sale of Property of Insane Person.
    
      kn order for sale of property of an insane person reciting a ground therefor, will be presumed to have been made on that ground solely, not on other grounds mentioned in the petition.
    
    A petition for such a purpose invokes a special statutory jurisdiction which can be exercised only as the statute directs.
    On a petition under 2 R. 8. 54, § 11 (3 R. 8. 6 Ed. 55, § 12), a reference must be ordered to inquire into its truth, etc., and the omission of this is fatal to the proceedings.
    
      It seems, that the same rule should apply to proceedings under the act of 1864.
    
    The decision in Battell v. Torrey, 65 S. T. 294, approved. A purchaser under an order in such a case is entitled to have the title perfected by new proceedings, or to be discharged and have tas purchase money refunded.
    Appeal from an order.
    Curtis S. Smith, the committe of a lunatic, in August, 1873, petitioned the supreme court for an order to sell real estate, on the ground that it produced no income, and that a sale was necessary for the support of Mm and his family.
    
      The revised statutes above referred to authorize a sale (1) for payment of debts, or (2) for support of the lunatic or Ms family or (3) for education of Ms children : and require the petition to be referred (3 R. S. 6 Ed. 55). The act of 1864 (2 L. 1864, p. 1000, c. 417, § 5), authorized sales for (1) support, maintenance and education of the lunatic, (2) for Ms interest on account of waste, unproductiveness, &c., (3) when a contract of sale made cannot be executed because of unsoundness, (4) for any other peculiar reason. This act does not peremptorily require a reference, but says the court may so proceed (§§ 3, 4).
    The order in this case was granted without a reference, and recited as its ground, necessity for the support of the family of the lunatic.
    The purchaser refused to take title, and moved at special term for an order that the committee be required to amend Ms proceedings, or institute a new one, or refund. the purchase money.
    
      The supreme court held that the proceedings were in substantial compliance with the statutes, and the order could not be objected to for want of jurisdiction (Reported in 10 Hun, 83). The purchaser appealed.
    
      D. P. Barnard and A. W. Parker, for petitioner, appellant.
    
      J. J. Armstrong, for respondent.
    
      
      Compare Brown v. Mayor, &c., 9 Hun, 591, as to effect of recitals in an order.
    
    
      
      The subject is now regulated by L. 1874, p. 572, c. 446, §§ 6-18, as amended in § 6 by A. 1875, p. 654, c. 574, § 6, and A. 1876, p. 265, c. 267; but the respective peremptory and permissive clauses of the acts are retained, the new act being rather a collation and reproduction of the former clauses than a consolidation and codification of them. The proposed chapter 17 of the Qotle of Oivil Procedure, now before the legislature, reduces these acts into one harmonious system, and provides that in all cases a reference must be ordered. §§ 2348, 2354.
    
   Church, Ch. J.

We must, I think, assume that the proceedings which resulted in an order to sell and convey the real estate of the lunatic were under the provisions of the revised statutes, 2 R. S. p. 54, and not under the act of 1864, chap. 417, for the reason that the order recites the necessity for a sale to be only for the support of the family of the lunatic, and we must presume that the court made the order for that purpose and disregarded other grounds stated in the petition.

The act of 1864 does not authorize a sale for that purpose, but only for the support and education of the lunatic himself and for the promotion of his interests, for reasons specified in the statute, among which the support of his family is not included.

It is unnecessary to determine whether there is any substantial difference in the steps required to be taken by the act of 1864 from those required by the revised statutes. The only apparent reason for the passage of the act of 1864 was to change, and in some respects enlarge, the grounds for selling the real estate of a lunatic, and it may well be claimed that the substantial requirements of the revised statutes were not intended to be dispensed with in proceedings instituted under that statute, except as therein specified. The question is, whether the conveyance to the purchaser transferred to him a good title, and this depends .upon whether the proceedings were valid.

The petition in this case was proper, and gave the court jurisdiction to proceed and determine the subject matter involved; but it conferred jurisdiction to proceed, not according to the discretion of the court, but in accordance with the statute. It was a special statutory jurisdiction, and could only be exercised as the statute directs.

The statute, sec. 12, provides that on the presenting of such petition, it shall be referred, etc. The referee is to examine into the truth of the representations made, to hear all parties interested in such real estate, and report thereon.

In this case no reference was made, and there was no hearing of the parties interested, and no report. We think that this requirement is substantial and cannot be dispensed with, and that its omission constitutes a fatal defect in the proceedings. It may be that the same result would have been reached in this case as if a reference had been had, and the same would doubtless be true in a majority of cases, but the legislature have seen fit to provide this as one of the safeguards for the-protection of the real estate of persons who are incapacitated from acting for themselves, and it should not and cannot be disregarded. Courts might easily be-imposed upon by ex parte statements of parties, while a public hearing would tend to develop the whole truth and bring out any reasons which might exist against the proposed sale. The statute is mandatory and requires a hearing of all parties interested before the-referee. If the referee is dispensed with, it is essentially an ex parte proceeding. I concur with the views-expressed in the recent case of Battell v. Torrey, 65 N. Y. 294, by the commission of appeals, and they are authoritative against the validity of these proceedings.

The purchaser does not seek to retract from his purchase, or to be relieved therefrom. He only asks that the title may be perfected by new proceedings, conducted according to the statute, or that the purchase money may be refunded. This is not unreasonable, and can work no injustice. The order of the general and special term must be reversed, and the motion granted, with costs, out of the estate of the lunatic.

The terms of the order, if not agreed upon, may be settled by the court. The purchaser should be required to stipulate to pay as much as he before agreed to pay, and the committee should be allowed to procure more than that sum if he could do so.

All the judges concurred.  