
    Asa Ellwood et al., App’lts, v. Albert Northrop, Resp’t.
    
    
      Court of Appeals,
    
    
      Filed June 7, 1887.
    
    1. Ejectment—Title—Executor—Mortgagee in possession.
    Casper J. Lieb, in 1846, by will divided a farm held in trust for him, between his two daughters, for life, and to their male heirs. It was subject to a mortgage to one Depau, provision for the payment of which was made by his will. His son-in-law, Walrath, as executor, divided the lands. His daughter, Peggy Ellwood, occupied her share to 1856 and died in 1870 Her sons bring this action of ejectment, and defendants set up a deed from Walrath in 1856. The trial court dismissed the complaint, holding that defendant succeeded to Walrath’s rights as mortgagee in possession as owner of the Depau mortgage, founded merely upon a receipt found among Walrath’s papers after his death. Held, error, that any presumption of an indebtednes from Lieb to Walrath for payments by him on the mortgage would be rebutted by the voluntary division of the farm, and by his failure to make any claim therefor.
    2. Same—Adverse possession.
    That the deed from Walrath conveyed no interest. (1) Because it was. void by reason of Peggy’s adverse possession. (2) Because Walrath did not have possession at time of conveyance. (3) Because he held no mortgage at that time
    3. Infant—Sale of real estate of—Title through such sale.
    Where one rests upon a title acquired through the sale of infants real estate, he must establish the fact by affirmative evidence that every requirement of the statute necessary to confer jurisdiction upon the court to-order a sale of the infants property has been complied with.
    Appeal from supreme court, general term, fourth department.
    
      D. O’Brien, for app’lts; John Lansing, for resp’t.
    
      
       Reversing 36 Hun, 640, mem.
      
    
   Ruger, C. J.

This was an action o_ ejectment to recover an undivided three-fifths part of a parcel of 130 acres of land in Jefferson county, as male heirs of one Peggy Ell-wood. The plaintiffs claim to have acquired title to such land under the will of their grandfather, Casper J. Lieb, who died in March, 1846. By such will Leib demised to his daughter Peggy Ellwood 130 acres of land, being part of a farm of 325 acres purchased by him of Eli Watson, the conveyance of which was made to Adam W. Walrath in “trust for my sole use, benefit and behoof,” “for and during her natural life, in trust for the male heirs of her body, to have and to hold the same from and after the death of their said mother Peggy.” The remainder of the farm was devised to his daughter Mary, wife of said Adam W. Walrath, substantially upon the same terms and conditions as attended the devise to Peggy. By the will, which was originally executed in 1839, provision was made for the payment of a mortgage upon the farm for $1,500 held by one Depau, by applying thereon moneys due the testator from one Brown upon a mortgage held by him against Brown for a larger sum. Adam W. Walrath was made one of the executors of the will, and he, after the death of Leib, entered upon 'the performance of his duties, :and, so far as appears, fully administered the estate. Immediately upon the death of Leib the farm was surveyed, and a division was made among the devisees, Mary z) with her husband continuing to occupy the part devised to her, which was previously occupied by her husband, and Peggy taking possession of the 130 acres devised to her, and continuing to occupy them until 1856. She died in 1870, and this action was commenced in 1881.

The defenses to the action, as, stated in the answer, were substantially as follows: (1) A denial of any knowledge or information sufficient to form a belief that plaintiffs, as tenants in common, were seized and possessed of an estate of inheritance in fee-simple absolute of said premises. (2) Certain proceedings taken in May, 1856, under the statute for the sale of infant’s real estate, whereby the defendant claimed that his grantee acquired the title of the plaintiffs to the lands in dispute. (3) That neither the plaintiffs nor their ancestors were seized or possessed of the premises within twenty years before the commencement of the action. (4) That the defendant and his grantors have been in adverse possession of the premises for a period exceeding twenty-five years, under a claim of title founded upon a deed thereof dated April 11,1856, from one Adam W. Walrath, who was claimed to hold the title thereto.

On the trial the defendants, among other conveyances, put in evidence a quit-claim deed of the premises, dated April 11,1856. for the consideration of one dollar, from Adam W. Walrath to one Wooliver, the defendant’s remote grantor. The trial court found all of the issues of fact made by the pleadings for the plaintiffs, but also found that the defendant, under this deed from Adam W. Walrath, succeeded to all of his rights to such land, among which was the right of mortgagee in possession as owner of the Depau mortgage. It refused to find, upon the plaintiff’s request, that Walrath was not in possession of the premises in dispute at the date of his deed, to which refusal the plaintiffs excepted. The uncontradicted evidence established the fact that Peggy Elwood entered into possession of the 130 acres in 1846, under the devise from her father, and continued in such possession, with the knowledge and consent of Walrath, until 1856, and held such possession under a claim of title at the date of Walrath’s deed to Wooliver. Baker v. Lorillard, 4 N. Y., 257. The entire evidence upon which Walrath was held to be a mortgagee in possession was admitted against plaintiff’s objection, and consisted of the facts that after his death, in 1881, his widow found among his papers the Depau mortgage, with an endorsement thereon reading as follows “Received January 23, 1843, of Adam W Walrath, one dollar, in full discharge of the above and within mortgaged premises, which mortgage has been duly assigned to me. Stephen W. Brown, [l. s.]” This discharge was duly acknowledged on the same day by Brown before a supreme court commissioner. There was also found among the papers an assignment of the same mortgage from Brown to Walrath, dated May 10, 1842. This assignment was also acknowledged by Brown on the same day he executed the discharge of the mortgage. It does not appear that Walrath ever claimed any interest under this mortgage, or ever entered into possession of the property, or claimed to hold it by virtue of such mortgage, or by any other right or tehure whatever. It also appears that the mortgage held by Lieb against Brown for $4,000 was satisfied of record on January 24, 1843, almost simultaneously with the satisfaction of the Depau mortgage. The evidence also shows that when Lieb purchased the Watson farm, in 1836, he paid the whole consideration therefor, with the exception of the amount of the Depau mortgage and a small balance of about $250, and the title therefor was taken in the name of Walrath as trustee for Lieb, with the view of protecting it from anticipated claims of Lieb’s wife, with whom he was then at variance. Thereafter both Lieb and Walrath lived on the farm until Lieb’s death in 1846. Lieb was the purchaser in fact of the farm, and, as conceded both by the trial court and the general term, took an absolute title in fee to the same under the conveyance thereof by Watson to Walrath, and an agreement of trust simultaneously executed therewith between Lieb and Walrath. As between Walrath and Lieb, the latter was primarily liable for the payment of the Depau mortgage, and., if any presumption of an indebtedness from Lieb to Walrath could arise under the circumstances of this case for payments made thereon by Walrath, it would be fully rebutted by the voluntary division of the farm between the devisees of Lieb after his death, with Walrath’s assent, and without any claim on his part of an interest therein, and the administration of the estate of Lieb by Walrath, as executor thereof. As such executor he had the right to retain, as a creditor of the estate, so much of the assets as were necessary to discharge his debts, (2 Williams, Ex’rs, 896, 897), and, in the absence of any claim on the part of Walrath during his life that the debt had not been paid, a conclusive presumption arises that the debt, if it ever existed, had in fact been paid.

We have therefore reached the conclusion that Wooliver took no interest in the premises in question by his deed from Walrath, (1) because it was void by statute by reason of Peggy Ellwood’s adverse possession of the premises conveyed, at the time of its execution; (2) because Walrath did not have possession of the property at the time of the conveyance; (3) because he held no mortgage thereon at that time.

The trial court, therefore, erred in dismissing the complaint on the ground that the defendant was a mortgagee in possession. The court, at general term, however, did not pass upon this question, but affirmed the judgment upon the ground that the proceedings by which the interest of the plaintiffs in the land was sold, in 1856, were a substantial compliance with- the provisions of the statute relating to the sale of infant’s real estate, and that the conveyance executed by the special guardian appointed in such proceedings vested the title in Wooliver, the grantee through whom the defendant derived his title. We are unable to concur with that court in this conclusion. The common law does not-recognize any mode by which an infant can be deprived of his title to real estate against his consent, or that of some person duly authorized to act on his behalf. Rogers v. Dill, 6 Hill, 415; Forman v. Marsh, 11 N. Y., 551; Baker v. Lorillard, 4 id., 257. The statute has, however, provided a method by which such an interest may lawfully be sold; but, this being a special proceeding, its requirements must be strictly pursued in order to validate such a sale. The statutes in force in 1856, at the time of this sale, were substantially as follows: By section 170, article 7, title 2, chapter 1, part 3, Revised Statutes (2 Edmund St. at Large, 202, 203), power was given to the court of chancery, upon the application of any infant seized of real estate, to order the sale or disposition of his property in the manner therein directed. The mode of procedure was prescribed to be as follows (section 171): The appointment of some suitable person as special guardian of the infant for such proceedings (sec-, tion 172); the execution by such guardian of a good and" sufficient bond for the faithful performance of the trust) reposed in him (section 174). Upon the filing of such bond’ (the court was authorized to proceed “in a summary manner, by reference to a master, to inquire into the merits of the application.” Section 175. If it thereby satisfactorily appeared to the court, for any of the reasons set forth in the statute, that a disposition of any part of the real estate of the infant was necessary and proper, it was authorized to -order its sale or disposition by such guardian. Section 177. Upon an agreement for a sale or other disposition of the property being made by the guardian in pursuance of the order therefor, he was required to report it on oath to the court, and, if it was confirmed, a conveyance thereof was authorized to be executed under the direction of the court. Section 178 then provides. “All sales, leases, dispositions and conveyances made in good faith by the guardian in pursuance of such orders, when so confirmed, shall be valid and effectual as if made by such infant when of full age.” The powers conferred upon the court of chancery were subsequently extended to county courts by the Code of Procedure.

KTo evidence whatever was offered of any compliance with the provisions of the statute above set forth, except the presentation to the Jefferson county court of a petition for an order of sale, and the appointment of such guardian, and the execution by him of a bond, and the approval thereof by the county judge. None of the provisions so carefully framed by the statute to inform the court of the circumstances of the case, and the propriety of the sale, were pursued or regarded by the parties conducting the proceedings. As appears from the evidence, no reference to a master, or to a referee who is made the substitute for one, was ever made, and the court was never informed of the situation and value of the land, the reasons for its sale, the name of the intending purchaser, the price to be obtained, the manner of its payment, or any of the circumstances which would enable it to exercise its judgment in pronouncing upon the propriety or prudence of the intended sale, or its ■effect upon the interests of the infants. KTo order was ever made by the court, except that appointing a special guardian for the purposes of the petition.

It is quite obvious, from the plain reading of the statute, ■that it was intended thereby that the judgment of the court upon all of these questions should be the condition of any authority in the special guardian to execute a conveyance. It is impliedly required that a conveyance shall be preceded by a contract of sale, and that such contract shall be reported by the guardian on oath to the court. Upon confirmation of such report, and only in that event, is there any áuthority under the statute for the transfer of an infant’s title to real estate. Stilwell v. Swarthout, 81 N. Y., 109; Rea v. McEachron, 13 Wend., 465. This view is further confirmed by section 178 of the statute, which, by necessary implication, forbids any other sale, and declares all sales, dispositions, and conveyances which are not made in pursuance of such orders, so confirmed, shall be void. Under the. provisions of the statute, no general authority can be conferred upon a special guardian to sell and convey an infant’s real estate, but every sale must be specially reported to the court, and specially approved by it, and special authority to make the particular conveyance must be obtained in order to vest the title in a purchaser.

It is a principle of elementary law that statutory provisions in derogation of the common law, by which the title of one is to be diverted and transferred to another, must be strictly pursued, and every requisite thereof having the semblance of benefit to its owner must be complied with in order to divert his title. Atkins v. Kinnan, 20 Wend., 241; Battell v. Torrey, 65 N. Y., 299; Stilwell v. Swarthout, 81 N. Y., 109.

In Re Valentine (72 N, Y., 186), which was a proceeding under the statute for the sale of the real estate of a lunatic, Judge Church says: “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. The statute provides that on the presenting of such petition it shall be referred. 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.”

In Battell v. Torrey (65 N. Y,, 296), in proceedings under the statute to sell or mortgage the real estate of an infant, which resulted in a mortgage, it was held that the mortgage executed was void because the provisions of the statute were not complied with. The court said: “The right to execute such a mortgage is, by the statute authorizing such proceedings, made to depend upon a confirmation by the court of the agreement reported. Then in the language of the statute, if it be' confirmed, a conveyance shall be executed under the direction of the court.”

These authorities seem to be in point upon the questions involved in this case, and must be deemed to be controlling upon its determination. The plaintiffs were by reason of their infancy, not only incapable of conveying their land, but incompetent to consent to or validate any of the proceedings taken to procure its disposition. They stood in the position of parties hostile to the proceedings, and objecting to every step taken therein.

The burden of proof to show that they have acquired the infant’s title rests upon the defendant, and he must establish the fact by affirmative evidence that every requirement of the statute necessary to confer jurisdiction upon the court to order a sale of the infant’s property has been complied with. In the absence of proof thereof, there are no presumptions in such proceedings that material requirements of the statute have been performed by the special tribunal having authority to act in the case. Its jurisdiction is made conditional, and the circumstances upon ,which it depends must be made to appear by proof.

The other questions in the esse were properly disposed of by the courts below.

The judgments rendered by the general and special terms must be reversed and a new trial ordered, with costs to abide the event.

All concur.  