
    James K. Ford et al., Adm’rs, App’lts, v. Charles O. Livingston et al., Resp’ts.
    
      (Court of Appeals,
    
    
      Filed November 28, 1893.)
    
    1. Lunatics—Proceeds of sale of real -estate remain real estate AND PASS TO THE HEIRS.
    Honeys paid "by an elevated railroad company for a conveyance of the interests of a lunatic in the street in front of his property is paid for an interest in real estate, and retain the character of real estate, and as such pass to the heirs of the lunatic on his death.
    3. Same.
    Whether the conveyance of such interest is valid or void, the next of kin of the lunatic have no right to the money, as, in case of its being void, the title to the real estate and easements would pass to the heirs and the committee would hold the money in trust for the railroad company.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment of special term in favor of defendants.
    
      Henry A. Forster, for app’lts; William E. Wyatt, for resp’ts.
   Earl, J.

Benjamin Page died in February, 1892. For several years before his death, and to the time of his death, he was a lunatic, and owned real estate abutting on the elevated road in the city of New York. In 1876 Stephen H. Olin was appointed the committee of his person and estate, and continued such until the time of the lunatic’s death. In 1888 Olin commenced an action against the elevated railway company to restrain it from maintaining and operating its road in front of the real estate of the lunatic, and he recovered a judgment restaining the railroad from operating its road in front of the real estate, unless it should tender to Olin, as such committee, the sum of $4,000, with interest thereon, and upon such tender receive from him a deed or release of all the interest, property, rights and easements of Olin and the lunatic in the street in front of the real estate taken by the railroad company by the erection and operation of the road. In January, 1892, upon the petition of Olin, an order was made by the court of common pleas in the city of New York, entitled “In the Matter of the Application of Stephen H. Olin as committee of the person and estate of Benjamin Page, a lunatic, for leave to sell certain real estate,” authorizing and directing the committee to execute and deliver to the railroad company a conveyance of all the interest, property and rights in and to the street in front of the real estate taken by the erection and operation of the railroad, upon payment to him of $4,000 therefor. Thereafter, in compliance with the judgment against the railroad company, and of the order just mentioned, Olin executed and delivered to the railroad company the deed, and received from it the sum of $4,000. A month later the lunatic died intestate, unmarried and leaving no descendants, and the real estate mentioned descended to his heirs. The plaintiffs were appointed administrators of his estate, and as such demanded of Olin the money thus paid to him, and.upon his refusal to pay the money to them they commenced an action against him to recover the same. Upon his motion the money was paid into court, and the defendants, the heirs of the lunatic, were substituted as defendants in his place, and the action was continued against them. The next of kin and the heirs of the lunatic were not the same persons: The plaintiffs claimed the money as personal estate for the next of kin, and the defendants claimed that it retained the character of real estate, and passed and belonged to them as heirs. The court below held that it belonged to the defendants as heirs, and this controversy between the next of kin and heirs is now to be finally determined.

We think it cannot be questioned, under the decisions of this court, that this money was paid for an interest in real estate. Newman v. Elevated Railroad Co., 118 N. Y., 621; 30 St. Rep., 36; Kernochan v. Same, 128 N. Y., 559; 41 St. Rep., 110; Mitchell v. Same, 134 N. Y., 11; 45 St. Rep., 318; Sperb v. Same, 137 N. Y., 155; 50 St. Rep., 204. By the deed to it, assuming it to be valid and effectual, it acquired all the property interests of the lunatic in the street, with the right, by the maintenance and operation of its road, to inflict permanent.damage to his abutting real estate, thus diminishing the value of the inheritance, and thus a portion of the lunatic’s real estate was converted into money. The conveyance was really under the order of the court to carry into effect the judgment in the action commenced by the committee against the railroad company, and under such a conveyance, assuming it to be valid, the railroad company obtained just the title it would have had if it had taken the real estate by condemnation proceedings. American Bank Note Company v. Elevated Railroad Co., 129 N. Y. 254; 41 St. Rep., 531. If the $4,000 was more than the value of the property rights conveyed, that is a matter which does not concern these plaintiffs.

This money retained the character of real estate. By the act, chapter 417 of the Laws of 1864, provision was made for the sale -of the real estate of the lunatic which was in the hands of his committee, and it was provided that the proceeds should retain the character of real estate. This provision was re-enacted in 1874, Laws of that year, chap. 446, title 2, § 14, and it is embodied in the Code, § 2359.

But the claim is made by the plaintiffs that the proceedings instituted by the committee for the sale of this real estate were invalid and ineffectual because they did not conform to the provisions of the Code on the subject. The answer to this is that the plaintiffs are not in a position to make the objection. The money was paid for the conveyance of the real estate. The heirs, the only persons interested in the real estate, make nonobjection, but, by claiming the proceeds, they ratify and confirm the proceedings, and by taking the proceeds they would be estopped from denying their validity. If the conveyance is ineffectual to convey a valid title, the railroad company may still compel a proper and sufficient conveyance.

But we may take a broader view of this case. ' We may assume that the conveyance of the committee to the railroad company was made without any authority of law, because the provisions of- the Code regulating the sale of the lands of lunatics were not complied with, and that it was and remains utterly void. Nevertheless, the money was paid to him for this real estate, and if his proceedings for the sale were" void and inoperative then he held the money in trust for the railroad company, and to and for its use, and it had the right to reclaim it at any time, and the plaintiffs had no interest whatever in it, and no right to interfere with it; and they cannot complain of the judgment awarding it to the •defendants. In that event the title to the real estate abutting on the street with the appurtenant easements passed unimpaired to the defendants, and if they take this money then they can be compelled to give an effective conveyance of the real estate. Hence, whether the conveyance was void or valid, in either event the plaintiffs have no right to this money, and, therefore, the judgment should be affirmed, with costs.

All concur. 
      
       Affirming 54 St. Rep., 164.
     