
    KELLEY'S ESTATE.
    
      Surrogate's Court, City and County of New York;
    
    1876.
    Proceedings eor Sale oe Real Property.
    The surrogate should not confirm a sale of real estate for payment of debts if the petition on which it was ordered is defective in any of • the statute requirements going to the jurisdiction (3 JR. S. 100-104).
    The act of 1850, and its amendments,—curing defects in titles under such sales,—applies only where the sale is collaterally questioned, not in the proceedings to confirm the sale in the surrogate’s court.
    
    This was an application in the matter of the estate of John B. Kelly, deceased, for an order confirming the sale of certain real estate, ordered to be sold under the provisions of the Revised Statutes, for the purpose of paying the debts, on application of the administrators.
    The petition was filed June 28, 1875, on which day an order, requiring all persons interested in said estate to show cause on August 18, 1875, why authority should not be given to sell so much of the real estate of the deceased, as should be necessary to pay his debts, was granted.
    Service of this order, together with publication, was made, and on September 28, in the same year, an order was made by the then surrogate, reciting the petition for leave to sell, the order to show cause, proof of service thereof, together with publication, and that the surrogate, on due examination, being satisfied that the administrators had fully complied with the provisions of the statute, that the debts, for the purpose of satisfying which the application was made, were due and owing, and not secured by judgment, or mortgage, &c., stating the amount, and that the personal property was insufficient for such payment; and the surrogate, having inquired and ascertained whether sufficient moneys for that purpose could be raised by mortgage or lease, and it appearing that it could not, and that said administrators had executed a bond with sufficient sureties, approved according to the statute, which bond was filed, it was ordered that said administrators sell the premises described, prescribing the credit to be given on the sale .to the purchaser, and that the administrator file a return, &c.
    This order was signed by the then surrogate, with a memorandum in pencil at the left of the signature, “ signed provisionally,” which, it appears, meant subject to filing and approval of the bond, as is supposed; at all events, the bond seems not then to have been given, but was afterwards, and on March 6, 1876, presented at the surrogate’s office, and filed by the clerk ; but was not actually approved until May 25, 1876, and was in the penal sum of three thousand dollars.
    Subsequently, and on May 24, 1876, a duplicate (substantially) of the order of sale above described, bearing date March 17,1876, was presented to the present surrogate for the purpose, as is supposed, of curing the defect, if any, of the former order being signed before execution, delivery, and approval of the bond, and the omission of Surrogate Van Schaick to sign the latter order, and was then signed by the present surrogate.
    On May 25, 1876, on an affidavit setting forth the facts in respect to the signing of the first order, and the delay in giving the bond, and "that such bond was delivered March 6, 1876, to the chief clerk, and the omission of the late surrogate to sign said order of sale, of date of March 17, and that such omission was by inadvertence, together with an order that the order of sale aforesaid be signed by the present surrogate mono pro tunc, was presented and signed for the purpose of curing the defect or omission referred to, it appearing that the sale of the premises had been already made.
    It appears by the petition in this matter, that it omits to state the description of all the real estate of which the intestate died seized, with the value of the respective portions or lots, and whether occupied or not, and if occupied, the names of the occupants, in conformity to 2 Revised Statutes, 104, section 2, Statutes at Large.
    It also appears, by a deposition before the surrogate, that the recital, in Surrogate Hutchings’ order of sale, that the bond had been given according to law, was not true, and that the order of sale bearing date March 17, 1876, was not in fact granted by the late Surrogate Van Schaick, but that he was then absent from the city, and never returned alive.
    And on an examination of the records of the office,' no evidence that the late surrogate ever took proof of any debts against the estate in question, prior to his order under the statute, appears, except such proof as was furnished by the petition in this matter, or that any such debt was ever adjudged valid or subsisting against said estate, or was entered in the book, of .proceedings, or the vouchers supporting the same filed pursuant to section 13 of said statute.
    
      Chas. C. Egan, of counsel, for administrators.
    
      Chas. M. Hall, of counsel, for purchaser.
    
      
       The principles of the act of 1850, are to some extent recognized by the courts independent of that act, when the proceeding is drawn in question collaterally in another action. See McNitt v. Turner, 16 Wall. 364; Comstock v. Crawford, 3 Id. 405; Florentine v. Barton, 2 Id. 216. Compare, however, Schneider v. McFarland, 2 N. Y. 459.
    
   Calvin, Surrogate.

Objection is taken by. the counsel for the purchaser on the sale of the premises in question, among numerous others, that the late Surrogate Hutchings did not obtain jurisdiction of the parties, or the subject matter aforesaid, by reason of the defects of the petition ; and second, because of the non-adjudication of the claims against the estate, and their non-entry in the book of records, and that the order of sale was defective, because made before the execution, filing, and approval of the bond, and that the said order of sale, supposed to have been made by Surrogate Van Schaick, was not in fact made by him, and therefore the order for signature thereof nunc pro tunc is invalid, and that the first signature by the present surrogate was not authorized by the act of 1874, chapter 9, as not being a record of a will, or proof, or examination taken before the predecessor of the present surrogate, or a record of letters testamentary, or of administration, or guardianship.

It is claimed by counsel for the petitioner, that it is the duty of the surrogate under section 30, 2 Revised Statutes, p. 109, to confirm the report of sale in this matter, because it appears to have been legally and fairly conducted, &c. ; but in order to determine under that section whether the sale has been legally made, it becomes necessary primarily to inquire whether jurisdiction was obtained of the subject matter, and of the parties interested, by the petition and order to show cause, and the service thereof.

It is clear that the petition does not conform to subdivision 4, of section 2, 2 Revised Statutes, p. 104. That section prescribes, as it seems to me, the facts that are necessary to be inserted in order to obtain jurisdiction ; the language of the section is, the “ petition shall set forth; ” and the omission of any of its requirements fails to secure jurisdiction.

It cannot be denied that the petition in this matter was defective in the particulars above referred to, and if the requirements of the statute, prescribing what the petition shall contain, may be disregarded in one particular, it may be in all; but it is urged by the petitioner’s counsel that under the act of 1850, chapter 82, sections 1, 2, and 8, and the amendments of section 3 by chapter 260, of the Laws of 1869, and 92 of the Laws of 1872, the objections referred to are cured.

By section 1 of the act of 1850, it is provided that the title of any purchaser at any such sale, made in good faith, shall not be impeached or invalidated by reason of any omission, error, defect or irregularity of the proceeding before the surrogate, or by any allegation of want of jurisdiction on the part of such surrogate, except in the manner, and for the causes, that the same could be impeached or invalidated, if made pursuant to the order of a court of original general jurisdiction.

The second section provides that such sale shall not be invalidated or impeached for any omission, in any petition for such sale, provided it shall substantially show that an inventory has been filed, and that there are debts which the personal estate is insufficient to discharge, and that recourse is necessary to the real estate.

The third section provides that such sale shall not be invalidated by reason of an irregularity in any matter or proceeding after the presentation of any petition, and the giving notice of the order to show cause, &c.; and this provision is substantially preserved in the several acts amending the third section.

It is also claimed by said counsel, that section 1 of chapter 359 of the Laws of 1870, precludes the purchaser from objecting to the completion of his purchase because he has not appealed, or taken proceedings to set aside, open, vacate, or modify the proceedings in this matter; and several authorities are cited to sustain this view.

The case of Forbes v. Halsey is cited as authority for the doctrine, that no sale shall be invalidated by reason of any irregularity occurring after the presentation of the petition; but that was a case of ejectment, and clearly within the provision of the act of 1850.

The learned counsel has evidently failed to appreciate the object of that act, when he seeks to make sections 1, 2 and 3 of that act applicable to proceedings before the surrogate, and gives no force to section 4, which seems to be the only section affcting the surrogate, and one which specifically provides that he shall not confirm any such sale, unless, upon due examination, he shall be satisfied that the provisions of the said title have been complied with, as if this act had not been passed, showing conclusively, that the act in question was not intended to relieve the surrogate from strict conformity to the Revised Statutes, but only to throw such guard around the purchaser, by presumptions of regularity, after the surrogate has acted.

I think the act of 1870, in its first section does not contemplate any limitation of the strict requirement of the Revised Statutes in conducting such proceedings, and is not applicable to such proceedings pending before that officer, otherwise it would nullify the fourth section of the act of 1850. I am therefore of the opinion that the several acts referred to do not relieve the surrogate from strict conformity to the Revised Statutes in respect to all the proceedings required by their provisions, and that it is my duty to recognize and act upon any objection of irregularity, as well as of jurisdiction, on this hearing.

And as I am not satisfied that the provisions of the Revised Statutes in respect to the sale and disposition of the real estate of the intestate have been complied with, I should refuse to confirm the report of sale (Ackley v. Dygert, 33 Barb. 176; Farrington v. King, 1 Bradf. 182; Wood v. McChesney, 40 Barb. 417).

It is well settled upon authority that any recitals of jurisdiction in any of the orders of the former surror gate cannot affect the question of jurisdiction (see Sibley v. Waffle, 16 N. Y. 189). Having reached the conclusion that there is a defect of jurisdiction to make the order of sale, it is not, perhaps, necessary that I should consider the other questions involved in this matter, but it may be proper to state that after the surrogate acquires jurisdiction, any other proceedings required by the statute, that may have been omitted in the progress of the proceedings, might be supplied by being taken nunc pro tunc,—such as the proof and adjudication of claims, the entry of the order for sale, the execution and approval of the bond,—as this court possesses the same authority as other tribunals to remedy and correct errors or mistakes in the course of proceedings, in cases where jurisdiction has been regularly acquired (see Farrington v. King, above cited, at page 191).

For the defective character of the petition in this matter, the motion to confirm the sale must be denied.  