
    George M. Newton, as Administrator of, Etc., of Elizabeth Newton, Deceased, Plaintiff, v. Jesse Evers, Annie Evers, Cecil W. McKenzie, John Henry Kruse, Helene Kruse, Julia E. Ferguson and Others, Defendants.
    (Supreme Court, Erie Equity Term,
    July, 1910.)
    Insane persons — Property and liabilities of incompetents — Conveyances and contracts by committee.
    The committee of a lunatic has no title to or interest in the lunatic’s real estate and no power to dispose of it, but is merely an agent or representative of the court.
    
      A deed of a lunatic’s real property, executed by his committee without strict compliance with the provisions of the Code of Civil Procedure relative to the sale of the real estate of lunatics, is absolutely void, without regard to the good faith of the parties to the transaction.
    The lunatic, upon restoration to sanity, may disaffirm the act of his committee and is not bound, as a condition of such disaffirmance, to restore the amount received by the committee and for which he has accounted.
    A mortgage, given by a grantee claiming under the deed of the committee, is not a lien upon the premises as against the grantee of the lunatic under a deed given by him after recovering competency and after the discharge of his committee.
    Action to foreclose a mortgage.
    J. S. Hurlbert (W. S. Thrasher, of counsel), for plaintiff.
    Ferguson & Magavern, for defendant Julia E. Ferguson.
    William J. Volker, for defendants Kruse.
    W. W. Saperston (D. M. McNaughton, of counsel), for defendant McKenzie.
    C. D. Coyle, for defendants Evers.
   Pound, J.

This is an action to foreclose a purchase money mortgage, on real property in Erie county, made by Jesse Evers and wife to Louisa H. Kinner to secure the payment of $1,500 in ten annual instalments of $150 each, dated August 5, 1887, and duly recorded. Ko part of the principal has been paid and no interest since February 1, 1889. The total amount due thereon at the time of the trial was $8,400.75. The premises are worth much less.

The mortgaged premises were originally conveyed by Kelson Woodward and wife to William H. Blakely, by deed dated September 17, 1884'. The consideration for such conveyance was $1,500; $500 in cash and the balance secured by mortgage.

About one year later, in proceedings in this court, Blakely was duly adjudged a lunatic and John Vellum was duly appointed committee of his person and estate.

On September 16, 1885, Vellum as such committee, without so much as the form of authorization from any court, executed a deed of the premises to Woodward, who thereupon discharged the purchase money mortgage of $1,000 executed by Blakely, and gave a mortgage to the committee to secure the repayment by him of the $500 which he had received from Blakely, which mortgage was afterward paid to and discharged by the committee.

Woodward thereafter conveyed to Kinner; Banner to Evers, who gave the mortgage now in suit, to secure a bond for payment of a portion of the purchase price, which bond and mortgage were thereafter duly assigned to plaintiff’s intestate; Evers conveyed to McKenzie, who assumed and agreed to pay the mortgage; McKenzie to the Kruses, who also assumed and agreed to pay the mortgage; the Kruses to Drefs and Cook, and Drefs and Cook to Julia E. Eerguson. The last mentioned conveyance was dated August 17, 1889, and recorded September 9, 1890.

Such proceedings were subsequently had that, on the 28th day of April, 1891, an order of this court was duly made and entered, judicially declaring Blakely to be sane. The committee thereafter accounted for the moneys of said lunatic coming into his hands, consisting chiefly of the $500 above received from Woodward, and his accounts were duly settled. On June 3, 1891, he was ordered to, and did pay over to Blakely the balance of money in his hands and was duly discharged.

Blakely, having been restored to the control of himself and his property, by deed da'.ed May 4, 1891, acknowledged May 15, 1891, and recorded June 26, 1891, conveyed the premises in suit, with covenants against grantor, to Julia E. Eerguson, who had already taken the Woodward title through Drefs and Cook as above set forth. She thereafter took possession of the premises and had a tenant thereon in 1903 who paid her rent.

Mrs. Ferguson took the Woodward title with full knowledge of its infirmities. Her husband and agent, Mr. Frank E. Ferguson, knew, at the time she took the deed from Drefs and Cook, of the deed by Vellum as committee back to Woodward and of the mortgage in suit; and it was on his representations that their title was bad that Drefs and Cook, in the words of Mr. Drefs, “ made him a present ” of the property by deeding it to Mrs. Ferguson. Mr. Ferguson’s law firm afterward represented Mr, Blakely in the proceedings whereby the latter was judicially declared competent; but it does not appear that Mr. Ferguson actually knew of the transactions between Vellum as committee and Woodward, other than the deed.

It is now claimed by the defendant Julia E. Ferguson (a) that the deed by Vellum as committee to Woodward was void and (b) that, therefore, her title from Blakely is superior to the title of Woodward and his grantees under the committee’s deed, and to the lien of the mortgage in suit, and to any equities arising out of the restoration by Woodward to the committee of the purchase money paid and the discharge by Woodward of the purchase money mortgage given by Blakely.

The defendants Evers, McKenzie and Kruse also answer; but, as their rights and liabilities depend upon the chain of title from Vellum as committee, the various defenses interposed by them are disposed of by the disposition made of that title.

The committee of a lunatic has no title to or interest in the lunatic’s real estate, but is simply an agent or representative of the court and has no independent power to dispose of such real estate in any manner whatsoever. A deed of the real property of an adjudged lunatic is valid only when executed in strict compliance with the provisions of the Code of Civil Brocedure relative to the sale of real estate of infants, lunatics, etc. Pharis v. Gere, 110 N. Y. 336.

The deed executed by Vellum as committee of Blakely to Nelson Woodward was, therefore, absolutely void.

The execution of such deed by Vellum as committee to Woodward and the discharge of the Blakely purchase money mortgage by Woodward and the restoration by him of the $500 paid by Blakely on the purchase price, taken together, plainly indicate a well-meaning but wholly irregular attempt on the part of Vellum and Woodward to place the parties in the position they were in prior to the conveyance by Woodward to Blakely.

The good faith and fairness of the transaction are obvious, but good faith and fairness do not take the place of orders of the court, made in conformity with statutory provisions, which alone can give validity to the acts of the committee.

Woodward acquired no title under the committee’s deed. The deed was not voidable, merely, but absolutely void. It left the parties, so far as title to the realty goes, as if no deed had been given. It had no legal existence or vitality. Losey v. Stanley, 147 N. Y. 560, 573; Van Deusen v. Sweet, 51 id. 378; Sander v. Savage, 75 App. Div. 333.

As the deed conveyed no title out of Blakely, Blakely’s deed to Mrs. Ferguson conveyed Blakely’s title to her.

There is no question of ratification here, for evidence is wholly lacking to charge Blakely with knowledge or notice of the committee’s deed. But, even if the item of $500 in the committee’s accounts were enough to put him on inquiry, or even if he knew the facts, he, in effect, disaffirmed the committee’s deed, or at least, evidenced his intention not to ratify it, when he conveyed to Mrs. Ferguson with covenants against grantor. As the deed was void, and not voidable merely, he was under no obligation to restore the consideration to Woodward before making the conveyance to her. As for Mrs. Ferguson, she is in the position of one dealing with a restored lunatic who fails to ratify the void conveyance of his committee. So far as his title is concerned, knowledge of all the facts would not. charge the premises with equities in favor of plaintiff as against her, nor is there any question of estoppel. Eeither Blakely nor Mrs. Ferguson has done anything to preclude them from showing the truth. Although plaintiff loses his money, his intestate was chargeable with notice of the invalidity of the Woodward title and of Blakely’s legal interest in the lands, and his slender equities are overbalanced by Mrs. Ferguson’s legal title. Losey v. Stanley, supra. It follows that the mortgage in suit is not a lien on the mortgaged premises.

Woodward is not a "party to this action and his equities, if any, under the Blakely mortgage, which he discharged, presumptively, under mistake of law, cannot be adjudicated here.

The consideration for the several personal promises to pay the purchase price having failed, such promises cannot be enforced by the plaintiff. The moving cause for such promises was the land and, as that failed to pass, the bond and the covenants to assume and pay the mortgage are without consideration to support the promise to pay. Dunning v. Leavitt, 85 N. Y. 30.

Complaint dismissed.  