
    BATTELL against BURRILL.
    
      Supreme Court, Second Department, Second District;
    
    
      General Term, January, 1871.
    Infant.—Sale of Lands by General Guardian.— Authority of County Court to grant Order to Sell.
    The provisions of 2 Rev. Stat., 193,—entitled “Of proceedings in relation to the conveyance of lands by infants, and the sale and disposition of their estates,”—do not authorize a release or quitclaim to be made on behalf of infants,—e. g., for the purpose of abandoning land taken for a local improvement.
    Proceedings under an order from a county court, authorizing a consent to such a release, are void.
    The jurisdiction of the court to alienate the infant’s title by a sale, is derived wholly from the statute.
    
      Appeal from a judgment.
    This action was brought by Joseph Battell against George W. Burrill. The facts appear in the opinion.
    
      
       In Giles against Solomon (Supreme Court, First District, Special Term, December, 1867), it appeared that plaintiff’s father died in 1840, leaving a widow and six children. In January, 1841, a foreclosure suit was begun, upon a mortgage executed by the father in his lifetime ; and the widow and the children in esse were made parties. Two days before the decree, in April, 1841, the plaintiff, a posthumous child of the deceased mortgagor, was born. In 1866 she began her action to redeem. Held, that she was entitled to one-seventh of the premises and back rents, on paying one-seventh of the mortgage.
      This action was brought by Eliza T. Giles against Barnet S. Solomon and wife, Henry Morrison, and Benjamin J. Hart, executors of Henry J. Hart, deceased; and Paschal W. Turney and Austin W. Ausbin, executors of Samuel D. Bradford, deceased.
      
        R. W. Townsend, for the plaintiff.
      
        Henry Morrison, for the defendants, among other points, urged that,—I. The foreclosure was a proceeding in rem; and in such an action the decree retroacts to the time of suit brought, and involves all the parties, their privies and successors in interest (Mead v. Mitchell, 17 N. Y., 210, 217; Greenl. on Evid., §§ 525, 540; 1 Stark. on Evid., 446 ; Cleveland v. Boerum, 24 N. Y., 613).
      II. A child en ventre sa mere at law is in esse for many purposes, but in equity, in foreclosure suits, those seized of the first estate of inheritance are those in esse, and are the only necessary parties' defendant who are in actual existence at the time of filing the bill (Nodine v. Greenfield, 7 Paige, 544). And all others are bound by the decree as beings virtually represented by those in whom the present estate is vested (Mead v. Mitchell, 17 N. Y., 210; Willis v. Slade, 6 Ves., 498; Story's Equity Pleadings, § 147; Gaskell v. Gaskell, 6 Sim., 643; 2 Peere Wins., 518; Story's Equity Jur., 656 (a) ; Cheeseman v. Thorne, 1 Edw., 629; 2 Hoff. Ch. Pr., 161; 2 Barb. Ch. Pr., 287; Coote on Mortg., 122; Doe v. Provoost, 4 Johns., 61; Story's Equity Pleadings, §§ 140, 144, 182, 198).
      III. To sustain this action will unsettle titles, and require parties to ascertain, at their peril, the possibility of other heirs being born.
      The decision, as follows, was rendered by James, J.—This cause came on for trial before the court at special term, in and for the city and county of New York; and after hearing the proofs and the arguments of the counsel for the respective parties, I find the following facts, with my conclusions of law thereon:
      That by deed, dated May 20, 1836, Robert Giles, Jr., became seized in fee of the premises on Thirty-third-street, New York, described in the complaint.
      That on the said May 20,1836, said Giles, as part security for the purchase money of said premises, made, executed, and delivered to his grantor a mortgage thereon for the sum of seven hundred and five dollars, payable in two years, with interest at six per cent., payable ¡semi-annually, which said deed and mortgage were duly recorded. 'That the interest on said mortgage was paid up to May 20, 1840. That :in 1836, said mortgage was duly assigned by the mortgagee therein to. 'Clarkson Crolius.
      That Robert Giles, Jr., died on October 21, 1840, and was at that ■time seized and possessed of the aforesaid premises in fee, subject to the aforesaid mortgage.
      That in January, 1841, an action to foreclose said mortgage by the ■aforesaid assignee was commenced, and such proceedings were thereupon had in the courts of chancery of the State of New York that an order directing the sale of said premises to satisfy said mortgage was made on April 12, 1841, and the decree of foreclosure entered May 19,1841.
      
        That said premises were duly sold under and in pursuance of said decree; that said Clarkson Crolius became the purchaser thereof, and received the master’s deed therefor May 20, 1841, and entered into possession under it.
      That said Robert Giles, Jr., at the time- of his death, was a married man-,, and left him surviving his wife and six children then in esse.
      
      That on April 10, 1841, said wife of said Robert Giles, Jr., was delivered of a posthumous child, of which said Robert Giles, Jr., was the father, and that plaintiff is that child.
      That plaintiff was not a party to said mortgage foreclosure, nor has she since, by any supplemental or other proceeding, had her equity of redemption in the aforesaid premises closed.
      That the dower and equity of redemption of the widow and other six children of said Robert Giles, Jr., in said premises, has been duly foreclosed.
      That no surplus remained on said foreclosure and sale.
      That at the time of said foreclosure and sale said premises were vacant, and that since there have been valuable buildings thereon.
      That on March 1, 1852, said Crolius sold and conveyed said premises to Ogden M. Rogers and George P. Burch; that on May 1, 1853, said Rogers and Burch sold and conveyed the same to James Phalen, and that said Phalen, on April 25, 1859, sold and conveyed the same to Barnet S. Solomon and Henry J. Hart.
      That said Henry J. Hart died in 1863, leaving a will, wherein Henry Morrison and Benjamin Hart were named as executors; that said will has been duly proved, letters duly issued to said named executors, and they have entered upon the discharge of their duties as such; that said will vested said executors with full power over the real estate of said testator; that Julia Solomon is the wife of Barnet Solomon.
      That said Solomon and Hart, at the time of the purchase of said premises from said Phalen, executed and delivered to him a mortgage for dollars, as a part of the purchase price; that said mortgage, and the bond to which it was collateral, are still unpaid; that the sum due thereon at this date is dollars; and that said bond and mortgage are now held and owned by the executors of Samuel D. Bradford, deceased, Paschal W. Turney and Austin W. Ausbin.
      That before the commencement of this action the plaintiff tendered to the defendants two thousand and twenty-two dollars and ninety-one cents, and claiming to redeem the whole of said premises from said foreclosure sale, and demanding possession thereof, which were declined and refused.
      
        Conclusions of Law.—1st. That plaintiff is a lawful heir at law of Robert Giles, Jr., deceased ; that as such, she was seized of an estate of inheritance of one-seventh of the real estate whereof said Robert Giles, Jr., died seized, subject to incumbrances existing at his death.
      2nd. That plaintiff’s rights as such heir were not affected by the said foreclosure; her equity of redemption by said foreclosure sale is unimpaired, and she is entitled to redeem her estate in said premises, one undivided seventh thereof.
      3rd. That an account should be taken of the aforesaid mortgage, and the interest thereon, at six per cent., to the time of stating said accounts, of the taxes on said premises, and the interest thereon from the time of payment to same time, and the value of the permanent improvements thereon, with interest from the time of their completion to same date, and one-seventh thereof stated.
      4th. That an account should also be taken of the rents and income from said premises, with interest thereon from the end of each year, ending May 1, up to the time of taking the account, and one-seventh thereof stated.
      5th. That John Q. Mott, Esq., counselor at law, Mew York, is hereby appointed a referee to take and state said accounts.
      6th. That upon the coming in of the report of said referee, if it be found that one-seventh of the mortgage, taxes, and improvements on said premises, and the interest, exceed one-seventh of the rents, incomes and interest thereon of said premises, a decree maybe entered declaring that one-seventh of said premises are redeemed, and that plaintiff stands seized in fee of one undivided seventh thereof, subject to a lien for such excess, to collect which execution may issue; but if said plaintiff shall pay such excess, or if the mortgage, taxes, improvements and interest do not exceed the rents, income and interest, then a decree shall be entered declaring one-seventh of said premises redeemed, and that plaintiff stand seized thereof in fee as tenant in common, free from all liens and incumbrances, including the mortgage of Solomon and Hart to Phalen, and now held and owned by the executors of Bradford; and that, in the latter case, the plaintiff be let into possession of one undivided seventh, and have a writ of possession therefor.
      7th. That if there shall be found anything coming from the plaintiff for principal and interest on said mortgage, taxes, &c., the same shall be first applicable upon the said mortgage made by Solomon and Hart to Phalen, and shall be paid to its present owners and holders, not to exceed the amount due thereon.
      8th. That the defendants, the executors of Bradford, recover their taxable costs of the defendants, Solomon and Morrison and Hart, as executors, &c.
      9th. That because the demand of the plaintiff at the time of tender exceeded her rights, she is not entitled to her costs of action against any of the defendants, farther than the costs of the referee in taking and stating the account as above ordered, which shall be a cnarge against the defendants, Solomon, and the executor of his late partner, Hart, for which plaintiff may have execution.
      Upon the coming in of the referee’s report, as above stated, let a decree be entered in pursuance of the foregoing finding.
    
   Tappen, J.

The plaintiff brings this action to recover possession of land in the city of Brooklyn. His title depends upon the validity of certain proceedings which are claimed to be valid, and to have beetii effectual for the 'purpose of alienating the title of certain infant owners of the fee. They are the children and heirs of one Anthony Steinworth.

The lot in question is a portion of four lots which belonged to them in 1847. In that year, the city of Brooklyn instituted proceedings to open Be Kalb-avenue, and to close Be Kalb-street. Commissioners of estimate were appointed, and the usual proceedings had.

On September 30, 1849, upon petition of the mayor and common council, the county court appointed A. H. Sidell guardian ad litem, in that proceeding, of the four Steinworth children, who were all infants under the age of fourteen years.

The opening of Be Kalb-avenue took a portion of these lots, and left a strip of land bordering upon the avenue, which, under the act of April 30, 1833, the owners were entitled to relinquish to the city of Brooklyn, and to have compensation therefor awarded by the commissioners. The consent to relinquish was to be in writing. Thereupon, an application was made on the petition of John H. Hess, reciting that he was the general guardian of said infants, and on the petition of A. H. Sidell, as their guardian ad litem, asking for “an order giving the petitioners, or one of them, power to abandon the said strip of land, known on the map as No. 144, believing that the best interests of the infants will be thereby promotedand an order was made by the county court, dated November 24, 1847, that the prayer of the petitioners be granted, and that they, or either of them, are hereby authorized to give a consent in writing to the said commissioners, on behalf of said infants, for the abandonment of the piece of land, in such form as may be necessary.”

An instrument was read in evidence, bearing date October 4, and acknowledged November 23, 1847, executed by parties who are described as Margaret Stein-worth, widow of Anthony Steinworth, and John H. Hess, as general guardian of the infant children of said Anthony Steinworth. The execution was certified by A. H. Sidell, as commissioner of deeds.

This paper purports to be a consent in writing to the abandonment of the land to the city, and to release and quit-claim the same. The children are not named in the instrument.

By the report of the commissioners, dated November 14, 1847, the sum of four hundred and twenty dollars was awarded to the heirs of Anthony Steinworth, for the land taken for the opening of De Kalb-avenue, and seventy-five dollars for the land not taken, but stated to have been abandoned by the owner. The awards were"payable to John H. Hess, mortgagee. Hess held a mortgage upon the property, and received the money.

It is not proven that Hess was general guardian for the children, except by the recital in the petition, order, and other papers in evidence.

This strip of land, lot No. 144, bordered upon De Kalb-street or Cripplebush-road. This street was closed by resolution of the common council, May, 1851. One James Humphrey owned land on the opposite side of the road, and upon its being closed he claimed, as adjacent owner, to be entitled to a conveyance of the strip of land in question; and the same was conveyed to him by the city of Brooklyn, by deed dated July 23,1851, for the expressed consideration of seventy-five dollars, being the amount paid by the city therefor, under the award. The plaintiff claims under this title.

The defendant is tenant of the land under the Steinworths, and the action is defended in their behalf.

The proceedings taken did not alienate their title.

The jurisdiction of the court to alienate their title by a sale, is derived wholly from the statute (Baker v. Lorillard, 4 N. Y. [4 Comst.], 275), and neither the infants or their guardians appointed for that purpose can convey lands except pursuant to the order of the court (Hyatt v. Seeley, 11 N. Y. [1 Kern. ], 52).

A consent by the infants, or on their behalf, is not authorized by statute. A release or quit-claim by a general guardian acting under the authority of the order of the county court is of no effect, and if such person be not general or special guardian there is even no consent.

The consent to relinquish or abandon the land for a specified sum was not in the nature of a sale to the city, but the statute which authorizes a court to direct the sale, mortgage or lease of infants’ lands was in no respect complied with.

It follows that without a lawful consent, the title taken by the city of Brooklyn was invalid, • and that the grantees by conveyance from the city have no adequate title to the lands (Embury v. Conner, 3 N. Y. [3 Comst.], 511).

It appears that the Steinworths have been in continued possession of the property notwithstanding the proceedings in their names, and that neither the plaintiff nor any of'his grantors has been at any time in possession of the disputed property.

The plaintiff’s counsel claims that the city acquired a valid title, because the act under which proceedings Were had, declares (section 3), that upon confirmation of the report, and payment or tender of the amount at which the residue is estimated, the same shall vest in the city in fee simple.

This would undoubtedly be so if the persons by whose act or consent the city took the lot, had capacity or authority to give the . consent; but I am of opinion, founded upon the statute, that such capacity or authority did not exist.

The Revised Statutes (1 Rev. Stat., 729, §10, p. 126, vol. 2 of the Fourth Edition), provide that every person capable of holding lands except idiots, persons of unsound mind and infants, may alien the estate, &c. Article 7, ch. 1, part 3 (2 Rev. Stat., 194, 2 Edm., p. 359), entitled “ of proceedings in relation to the conveyance of lands by infants, and the sale and disposition of their estates,” provides the manner in which such sale or disposition may be made ; and the authorities heretofore .quoted determine that these proceedings must be followed to alienate an infant’s estate.

And as these proceedings were not taken in any respect, the case at bar does not present a question of irregularity in the proceedings, but of the total want of valid proceedings.

The judgment should be reversed, and new trial ordered, costs to abide event.

Order accordingly. 
      
       Present, Barnard, P. J., and Tappen, J.
     