
    AGRICULTURAL INS. CO. v. BARNARD.
    
      N. Y. Court of Appeals,
    
    
      October, 1884.
    [Reversing 26 Hun, 302.]
    Foreclosure.—Insane persons; mortgage op real estate; PETITION; NOTICE OF PROCEEDINGS.—EVIDENCE ; RECITAL OF JURISDICTIONAL FACTS IN ORDER OF COURT.—JURISDICTION; STATUTORY.
    Under L. 1874, c. 446, tit. 2, § 117,—which authorized the court to grant leave to sell, etc. real property of a lunatic for the purpose of raising money to pay debts,—a bond was not necessarily required in proceedings to authorize a mortgage for that purpose, although it was, under §§ 6 and 7 of the same act, for the purpose of raising money to provide support.
    
    Tinder L. 1874, c. 410, tit. 3, § 30,—which provides that every insane person supported by the State Lunatic Asylum at Utica,—“shall be personally liable for his maintenance therein and for all necessary expenses incurred by the institution in his behalf,”  the amount due to the asylum for maintenance furnished and expenses incurred is a debt of the lunatic, for which his property ran be sold, mortgaged or leased by leave of court under the statute allowing such disposition for payment of debts.
    A petition which shows the existence of a valid outstanding debt o£ a lunatic, requiring disposal of real property to enable the committee to pay it, vests the court with jurisdiction of the subject matter; and such jurisdiction is not divested by subsequent irregularities in the proceedings unless taken in violation of some express provision of the statute.
    
    Notice of the statutory proceedings for the disposal of the lunatic's real.property need not be given to the lunatic, if notice be given to his committee. 
    
    The recital in an order for the disposal of the lunatic’s real property of the facts necessary to give the court jurisdiction is prima facie, and, if not affiimatively disproved, conclusive evidence of their existence, when drawn in question collaterally.
    The jurisdiction wiich the statute vests in the supreme court over the persons and property of lunatics and persons of unsound mind, is not a limited jurisdiction, within the rule that statutes authorizing special statutory proceedings must be strictly pursued, but is part of the generd jurisdiction of the court, and limited only by the special requirements of the statute. 
    
    
      Appeal from a judgment of the general term of the supreme court (third department) which reversed a judgment of the special term in favor of the plaintiff.
    The nature of the action and the material facts appear in the opinion.
    
      
       Title 2 of the let of 1874 was repealed by L. 1880, c. 245, the provisions of the ict having been consolidated in Code Civ. Pro. «§ 2348, etc. which 'equire the bond in all cases This change took effect on all proceelings commenced on or after Sept. 1, 1880. Id. § 3347, sub. 11.
    
    
      
       As to the defense that such confinement was illegal, see Commissioners of Charites v. Richmond, 28 Hun, 488.
    
    
      
       Compare on this subject an article on the meaning of the term “jurisdiction” in If Central L. J. 102.
    
    
      
       The rule seems ;o be the same under Code Civ. Pro. § 2349.
    
    
      
       The same statuory proceeding is now given by Code Civ. Pro. (above cited) for thcease of infant’s property.
      
        As to the general jurisdiction in those cases, see, also, Matter of Price, 67 N. Y. 231, aff’g Matter of Jackson, 6 Hun, 513, and cases cited; Spelman v. Terry, 74 N. Y. 448; aff’g 8 Hun, 205, and 3 Abb. N. Y. Dig., new ed. 656.
      The importance of the case on the text is in the principle stated in this and the preceding head-note. Hitherto the cases on the strict application of statutes sanctioning a special proceeding have not usually distinguished between proceedings to divest one of his property for public use and the like, and statutes giving the courts general jurisdiction over the persons and estates of infants, insane persons and habituáis drunkards, decedents, etc., and prescribing a proceeding by which their property could be disposed of in the interest and for the benefit of the estate.
      The case in the text supports with a distinct authority the tendency to sustain proceedings of the latter class, if there was original jurisdiction; a tendency already shown in the statutes confirming surrogate’s sales (L. 1850, c. 82 as am’d see 3 Abb. N. Y. Dig. [new ed.] 385, 7 Id. [supp.] 971; 1 Abb. N. C. 102; 88 N. Y. 309; rev’g 26 Hun, 46).
      It is certainly a wholesome rule, the adoption of which will lead to the removal of many inconvenient uncertaiutiis in titles.
      As to irregularities and their waiver, consul Cole v. Gourlay, 79 N. Y. 527; aff’g 9 Hun, 493; Matter of Price,67 N. Y. 231; aff’g Matter of Jackson, 6 Hun, 513.
      As to the remedy against a sale absolute^ void because had without jurisdiction, see Wiedersum v. Naunann, 10 Abb. N. C. 149.
    
   Ruger, Ch. J.

The action was brought to foreclose a mortgage for $1,500, dated October 19, 1877, given to the plaintiff on behalf of the defendant Barnard by one Martin Thatcher, a committee duly appointed of Barnard’s person and property, he having been duly adjudged a lunatic.

The record does not contain the evidence taken on the trial, and the appeal to the general term was heard and determined solely upon the judgment-roll, and exceptions to the findings of law by the trial court. In such a case, to succeed upon his appeal from a report in favor of the plaintiff, it is incumbent upon the defendant to show that the trial court could not, in any view of the facts found, properly order a judgment for plaintiff.

It appears by the findings of the court below, that the mortgage was given in pursuance of an order obtained from the supreme court, authorizing its execution for the purpose of paying the amount due the Utica Insane Asylum for the maintenance and support of the lunatic during a precedent period of time, and that the lunatic was placed in the asylum by the committee ; but it did not affirmatively appear that any express contract was made between the asylum and the committee for the lunatic’s support. The objection by the defendant to the recovery in this action, and the ground upon which the general term based its reversal of the judgment for plaintiff, was that no valid debt against the lunatic was created for his support to the asylum, and that the proceedings taken to mortgage his real estate could not properly be taken under the provision authorizing money to be raided for the payment of debts, but should have been instituted under, and have complied with the requirements of, sections 6 and 7 of title % chapter 446 of the Laws of 1874, authorizing money to be raised for other purposes.

The title referred to contemplates two proceedings and two distinct grounds upon which the supreme court is authorized to order a disposition of the real estate of a lunatic, and each is governed by different modes of procedure. The causes stated in sections 6 and 7 are to raise money to provide for the support and maintenance of the lunatic and his family, the education of his children, or on account of other peculiar reasons or circumstances appearing to be sufficient to the court.

Section 17 authorizes the court to order the real estate to be sold, leased or mortgaged for the purpose of raising money to pay debts.

The former proceeding requires the committee to execute a bond as security for the moneys which shall come into his hands at the time of making the application for an order, and the latter does not.

Under the provisions of the Eevised Statutes, it was left to the discretion of the court, whether to require a bond or not, in such a case, and that discretion is doubtless now vested in the court (2 R. S. pt. II., c. 5, tit. 8, § 14). In the case of a sale under either proceeding it is required, before a conveyance shall be executed, that such sale shall be reported to the court on the oath of the committee and confirmed by the court, but neither the letter of the statute, nor the object of the requirement applies to the execution of a mortgage authorized under section 17 of the act.

It follows, if the amount due the Utica Asylum was a valid debt against the lunatic, and the proceeding taken to mortgage or dispose of his real estate, was properly instituted and conducted under the sections of the statute authorizing a disposition of such property to pay debts, no material question arises but that all of the steps necessary to enable the committee to execute a valid mortgage were taken in this case.

The ground upon which the general term assumed to reverse the judgment of the trial court, was that the claim of the asylum was simply an obligation of the committee and not a valid debt against the lunatic, and the proceeding authorizing the mortgage must therefore be supported, if at all, under sections 6 and 7 of the act, as already stated.

The court also held that the proceedings were invalid under these sections for the reasons that a bond was not executed and filed by the committee upon making the application for sale or other disposition, as required by these sections, and also that no report was made to the court on such application, before the execution of the conveyance as seemed to be required by section 11.

We are unable to concur with the conclusions arrived at by that court on either of the grounds discussed by them.

It appears from the findings of the special term, that an action had already been commenced by the Utica Asylum to recover the debt owing to it for the support and maintenance of the lunatic.

By the express terms of the statute {L. 1874, c. 446, title 3, § 30), the lunatic is made personally liable for his maintenance to the Asylum, and by section 17 of the same title the treasurer of that institution is authorized to sue and recover from the person liable, the amount due them for his necessary expense and maintenance. There can, therefore, be no question but that the sum claimed by the Asylum constituted a valid debt against the lunatic at the time the proceedings were taken, the payment of which was capable of being enforced against his property, independently of any action by the committees (Brasher v. Cortland, 2 Johns. Ch. 400). The existence of this debt constituted a sufficient ground, under § 17, title 2 of the act, for the application to the court lor leave to lease, mortgage and sell his real estate.

The filing of a petition which shows the existence of a valid, outstanding debt of the lunatic requiring the disposition of his real property to enable the committee to pay, vests the court with jurisdiction of the subject matter under the act, and such jurisdiction would not be divested by subsequent irregularities in the proceeding, unless they were taken in violation of some express provision of the statute (Bangs v. Duckinfield, 18 N. Y. 592; D’lvernois v. Leavitt, 8 Abb. Pr. 59 ; Fisher v. Hepburn, 48 N. Y. 41, 50 ; People ex rel. Johnson v. Nevins, 1 Hill, 154; Cole v. Hall, 2 Hill, 625; Matter of Empire City Bank, 18 N. Y. 199 ; Mohr v. Manierre, 101 U. S. 418). By section 1 of title 2 of the act in question, the supreme court is invested with general jurisdiction over the persons and property of lunatics and persons of unsound mind, and, except as restrained and limited by the provisions of the statute, has power and authority to direct the place and method of their custody, and such disposition of their property as in its judgment is for the best interest of the lunatic. This jurisdiction is in no sense a limited jurisdiction, to be exercised as in the case of special pro-, ceedings authorized by statute, but pertains to the general jurisdiction of the court, and is limited only by the special requirements of the statute.

The supreme court, having general jurisdiction over the subject matter of the application, had authority to proceed and make such an order in the premises as the statute authorized, however the facts may have been brought to its knowledge, and the recital in the order of the facts necessary to give the court jurisdiction, is prima facie, and, if not affirmatively disproved, conclusive evidence of their existence (See authorities cited supra; Nostrand v. Wright, 94 N. Y. 31).

The powers conferred are similar to those formerly vested in the court of chancery, and the care and custody of the person and property of lunatics and others of unsound mind, which were formerly exercised by the Chancellor are now confided to the supreme court. These powers are usually exercised by the. court through a committee, and he acts as the officer of the court, and is always subject to its control and direction (Matter of Ann Lynch, 5 Paige, 120).

The proceedings by which the defendant was adjudged a lunatic are found to have been regularly taken, and the committee to have been regularly appointed upon notice to the defendant, and the effect of such a proceeding is to divest the lunatic of the custody and control of his property, and to place it at the disposal of the court, in furtherance of the objects provided for in the statute.

The committee is the proper person upon whom all notices intended for the lunatic, or affecting his rights of property are required to be served, and in applying to the court for leave to dispose of the property of the lunatic he represents that person, and is not required to give notice of his proceedings to him (Mohr v. Manierre, 101 U. S. 417).

It appears affirmatively from the findings, that no bond was given by the committee upon making application for leave to execute the mortgage in question, and this is the only fact so appearing that is made the ground of reversal by the court below. It, however, appears from the findings that the application of the committee was made, under section 17 of the act, for the sole and exclusive purpose of raising money to pay a debt owing by the lunatic. The findings are as follows : “The said Thatcher as such committee, thereupon, and on the 11th day of October, 1877, presented to this court a petition asking for leave to mortgage certain real estate of the lunatic, to raise $1,500 to pay said debt to the New York State Lunatic Asylum incurred, for the maintenance of said lunatic, and stated therein that he had no funds with which to pay said debt, and that the plaintiff would loan $1,500 for such purpose on said mortgage.” The findings then, after reciting the reference of the petition to a referee to inquire and report the service, by mail, of notice of the time and place of hearing, on the said lunatic and his several children, addressed to them at their respective places of residence, the hearing on the day appointed, and the report of the referee recommending the execution of the mortgage in question, proceeds : “ Upon the said report of said referee, an order was made by this court on the said 18th day of October, 3877, by which, among other things, the said Thatcher as such committee was authorized and empowered to execute a mortgage upon certain real estate of said lunatic for the said sum of §1,500 to provide for the payment of the debt to the asylum.

In the absence of any evidence or finding to support it, the court cannot presume, for the purpose of subverting this order, that there were other debts of the lunatic outstanding, unpaid, which were not provided for in the order, or that the petition presented to the court failed to show any of the facts necessary to give the court jurisdiction to make the order in question.

We think, however, that the findings affirmatively show that all of the facts necessary to give the court jurisdiction were stated in the petition, and that the order in question was a valid order, and authorized the execution of the mortgage in question.

It follows that the order of the general term should be reversed, and the judgment of the special term affirmed with costs.

All the judges concurred.  