
    In the matter of Hyatt, administrator, against Seeley.
    An application by petition to' the supreme court, under the statute'to compel a specific performance' by infant heirs of a contract for the sale of land made by the ancestor, is a special proceeding within section eleven of the code of procedure.
    An appeal lies to this court from a final order affecting a substantial right made by the supreme court at general term upon such an application.
    Neither infants or their guardians appointed for that purpose can convey land, except pursuant to the order of the court.
    Therefore, where the order directed infants to convey all their interest in certain real estáte, the deed to be executed by Josiah S. Mitchell, their guardian ad litem, in the name and behalf of the infants; Held, that a deed, réciting the appointment of Mitchell as their guardian, in which they were named as parties of the first part without the guardian name being mentioned, and. which was executed and acknowledged by the infants, and by Josiah S. Mitchell, without any addition to his signature indicating the character in which he executed, was not pursuant to the order, or one which the purchaser was bound to accept.-
    "Under such an order, a deed containing the names Of the infants, “ by Josiah S. Mitchell their guardian,” as parties of the first part, but executed by him, by subscribing “ Josiah S. Mitchell guardian &c.” is defective. Per Selden, J.
    The-guardian should execute the deed by subscribing the name'of the infant, and adding “ by Josiah S. Mitchell his guardian ad litem.” Per Selden, J.
    Whether, if the ancestor contracts to convey with covenants as to title; the court has power on an application under the statute for specific performance, to require the'heir to convey by a deed containing personal covenants, qu ere. Per Selden, J.
    But where'the' order of the court merely dire'eis the infants to convey their interest, personal covenants inserted in a deed executed on their behalf aró void. Per Selden, J.-
    Where the order in its recitals mentions five minor heirs, and that J.- S. Mitchell had been appointed guardian of "said minors, but omits the names of two of them in that part directing a conveyance, a deed executed by the guardian on behalf of all, passes no title as to the'two. Per Denio, J.
    In December, 1847, Joseph R. Hyatt, the intestate, and Columbus W. Seeley, the appellant, entered into a contract for the sale by the former to the latter of certain real estate.The purchaser, Seeley, was to assume the payment of a mortgage upon the premises for $2000, and to pay $3000 in cash on the first day of April, 1848, when a deed was to be executed. The contract provided for a deed with full covenants.
    
    Joseph R. Hyatt died on the 24th of March, 1848, leaving six adult and five infant children. Letters of administration were granted to the petitioner, one of the adult children, on the 31st of March, 1848.
    On the 12th of April, 1848, the petitioner presented his petition to the supreme court, pursuant to the statute, setting forth these facts and praying for an order directing a specific performance of the contract. The adult heirs and the appellant Seeley consented in writing, that the prayer of the petition might be granted.
    The court appointed a guardian ad litem for the infant defendants, and ordered a reference to ascertain the facts. The referee made a report, dated May 8,1848, and at a special term of the supreme court, held in the city of Hew-York on the 6th day of June, 1848, an order was made, by which after reciting the previous order of reference and the report of the referee it was ordered and decreed, 1. That the agreement for the sale was reasonable and proper and ought to be carried into effect, and that it should be specifically performed: 2. That the heirs, naming them severally, execute and deliver to Seeley " their deed of conveyance of all their interest,” in the premises : In this clause of the order there was an omission of the names of two of the infant heirs, but in its previous recitals the names of all appeared, and that Mitchell had been appointed their guardian: 3. That the guardian ad litem, Josiah S. Mitchell, execute the deed, “in the name and behalf of the above named infant children of the said Joseph R. Hyatt, deceased:” 4. That Seeley pay the purchase money of $3000, and the interest thereon from the 1st of April, 1848, on receiving the said deed. The order, also, provided that either party might apply thereafter to the court for its aid to carry it into effect.
    In pursuance of this order a deed, purporting to be from all the heirs to Seeley, was prepared, reciting the contract and the proceedings to compel specific performance, and conveying the premises in fee to Seeley. The deed purported in the body of it to be by the infant heirs, who were there named, “ by Josiah S'. Mitchell, their guardian,” and was executed by all the adult heirs, and, by the guardian ad litem in this form : “ Josiah S. Mitchell, guardian, &c.” L. S. without naming the infant heirs for whom he was guardian. The deed contained no covenants of any kind. Upon the tender of this deed to Seeley, he refused to accept it or to pay the purchase money. In August, 1848, the petitioner prepared another petition to the supreme court, reciting the previous proceedings and praying that Seeley might be compelled to comply with the terms of the order of the 6th of June. This petition was presented at a special term of the court, in September, 1848, but no order was made upon it. The court, however, on the 2d of October, delivered a written opinion, in which it was held, that Seeley was concluded by the order of the 6th of June, but that that order was defective in not prescribing the form and nature of the deed to be given by the heirs ; that Seeley was entitled to a deed with full covenants, and that upon a tender to him of such a deed, if he still refused to pay, he would be liable to be attached ; and, thereupon, the court, for the purpose of enabling the heirs to prepare and tender such a deed, suspended the disposition of the motion.
    A second deed was then prepared, from the heirs to Seeley, containing full personal covenants on the part of the heirs, infant as well as adult. This second deed recited the appointment of Josiah S. Mitchell as guardian of the five minor heirs, but in the body of the deed it did not purport to be made by them or on their behalf by him as their guardian, and it was signed by all the heirs, including those who were infants, and also by Josiah S. Mitchell, in his own name, without any addition to indicate the character in which he signed; his name appearing above and prior in order to that of one of the infant heirs.
    Upon the tender of this deed to Seeley, he still refused to pay or to accept the deed. An order to show cause, &c. was thereupon made, founded upon the previous proceedings, upon the hearing of which, on the 28th day of February, 1849, an order was made requiring Seeley to receive the second deed and pay the purchase money, .with interest, from the 1st of April, 1848.
    Upon a rehearing* before the general term, sitting in FTewYork, the order was affirmed; from this order of affirmance, the purchaser, Seeley, appealed to this court.
    
      N. Hill, Jr. for appellant.
    S. Beardsley, for respondent.
   Selden, J.

The first question which this case presents, is whether the order from which the appeal was taken is appealable. The code (section 11) gives an appeal to this court from “a final order affecting a substantial right made in a special proceeding, or upon a summary application in an action after judgment.”

I see no reason to doubt, that this is to be regarded as a special proceeding, and not an action. An action is defined by the code to be an ordinary proceeding in a court of justice. (§ 2.) This definition can hardly be held to embrace a proceeding, which is purely statutory and new ; and which is conducted in no respect, according to the ordinary forms of the common law. There is neither process or pleadings or issue joined, as in ordinary actions. The whole proceeding is peculiar and unknown. to our courts, except by special statutory provision, and is therefore aptly described by the term special proceeding. Besides, if it is not a special proceeding it must be a civil action. But section 127 of the code provides that, civil actions in the courts of record of this state, shall he commenced by the service of a summons.” This would seem necessarily to imply, that no proceeding not so commenced, can properly be deemed a civil action. That the order appealed from is final, and affects a substantial right, is not denied. It follows, therefore, that it is appealable. The question then is, was it correct? .The order required the appellant to accept the second deed and pay the purchase money. It cannot, I think, be successfully maintained, that the covenants contained in that deed are binding upon the infant heirs, for two conclusive reasons. First: Assuming that the court had power, in an application under the statute to compel the specific performance by heirs of the contract of their ancestor, to decree that infant heirs should execute a conveyance containing personal covenants, a question I do not intend to pass upon here; still, there could be neither equity nor propriety in requiring them to assume obligations, beyond such as would have legally devolved upon them, in case the contract had been carried into execution by the ancestor himself. If they are to be bound by covenants at all, it should obviously be to the same extent only, as they would have been bound by the covenants of the ancestor, had the deed been executed by him; a liability which would of course be limited by the amount of their inheritance from the ancestor, and should be so expressed in the deed executed by the heirs. A second and equally conclusive reason why the infant heirs could not be bound by the covenants in this deed, is, that there was no decree or order of the court requiring them to execute a deed with covenants. They clearly had no power to bind themselves, nor their guardian ad litem to bind them by voluntary covenants, entered into without the authority or direction of the court.

If, therefore, the appellant Seeley had a just right to insist upon a deed containing covenants on the part of the heirs ; it is clear that he was not bound to accept the deed in question. But the order of the sixth of June, 1848, which directs the execution of the deed, recognizes no such right, and imposes upon the heirs no such obligation. It simply directs a conveyance by the heirs of their interest in the premises. Unless, therefore, the appellant can look beyond that order, he can now only require a naked conveyance without covenants.

Hence it was insisted upon the argument by the counsel for the appellant, that the order of the sixth of June was in its nature interlocutory, and not final, and therefore open to review upon this appeal. But I apprehend, that this position can hardly he sustained. That order disposed of every question before the court and fully settled the rights of the parties; nothing was reserved, nothing left to be adjudicated. There was no occasion for any further application to the court unless one or the other of the parties should refuse to comply with the order. It was, therefore, in every sense a final order, by which the parties, unless they appealed, must be held to be absolutely concluded, So it was viewed by the justice at the special term in October: but he at the same time express: ed the opinion, that the order was defective in one respect, viz: in omitting to prescribe the form of the deed, and to require the heirs to execute a conveyance with full covenants, and he suspended the decision of the motion before him, to give the heirs an opportunity to prepare and tender such a deed.

The conveyance, which the order appealed from, required the appellant to accept, was executed and tendered in pursuance of this intimation at special term. But it is clear, that the respondent’s case has not been strengthened by the addition of the covenants in the deed. Those covenants, at least so far as the infant heirs are concerned, being as has been already shown utterly void. That deed therefore is to be viewed precisely as it would be with those covenants stricken out, and the whole case upon this appeal turns upon the question, whether the deed in question is properly executed, and whether independent of the covenants, it contains all that is requisite to make a perfect conveyance, in conformity with the order of the sixth of June, 1848. The covenants, though inoperative and void as to the infant heirs, do not vitiate the residue of the deed. I think the deed is in form sufficient, notwithstanding the void covenants, but the difficulty lies in the manner, of its execution. The direction in the. order is as follows: “ the said deed of conveyance to be executed by- Josiah S. Mitchel, the guardian ad litem, in the name and behalf of the above named infant children of the said Joseph it. Hyatt, deceased.”

The proper mode of executing a deed pursuant to such a direction would be, for the guardian to subscribe the name of the infant, and then add “ by J. S. M. his guardian ad litem and so it was held in the matter of Windle, (2 Edw. Ch. R. 585.) The precise form, however, is not essential, but the order of the court must be followed in substance, at least. The order is, that the deed be executed by the guardian in the name of the infants. Instead of this, the infants have themselves executed in their own names. It appears no where upon the face of the deed, except in the recital of the proceedings to compel a specific performance, that any of the grantors were infants, or that they had a guardian ad litem. In naming the parties to the deed who convey, there is no allusion to the guardian, nor to the fact that any of them were infants. That portion of the order which directs the guardian to convey in the name of the infants is not referred to in the recital, or in any part of the deed. The name of the guardian appears to the deed underneath the names of four, and over that of one of the infants, for whom he was guardian, with nothing whatever to distinguish it from that of any of the other grantors. Perhaps all these omissions and irregularities may not invalidate the deed. But if it be admitted, that by resorting to inferences, and by connecting the deed with the previous proceedings, its frue character may be ascertained and its validity as against the infant heirs established, which I do not regard, however’, ag by any means clear J still neither the petitioners nor the heirs had any right to impose upon the appellant, nor was he bound to accept a title embarrassed by such a question. As h.e was deprived by the order of the sixth of June of all claim to covenants from the heirs, he had at least a right to a deed upon the due execution of which, no cloud should rest. Courts have always, for obvious reasons, been more rigid in exacting a due observance of formalities in respect to instruments under seal, and especially such as convey the title to lands, than to those of a mere commercial ' character, wh'ose existence and functions are comparatively ephemeral.

There seems to have been nothing in the way since the order of the 6th of June, 1848, of compelling a specific performance by the appellant of the contract in question, but the omission to execute a proper deed pursuant to the directions of that order. Tf the deed first tendered is to be regarded as in all respects perfect, it could not of course avail the respondent here; because the order appealed from required the appellant to accept the second deed. But the first deed was defective in not being executed in the name of the infants as required by the order. The guardian signed his own name, adding “ Guardian, <fcc.” but omitted to subscribe the names of either of the infants. In all other respects, that deed was such a one as the order directed, and contained all that the appellant had a right to require under the order, and the defect in the manner of its execution may not have been fatal, as the deed purports in its commencement to be made by the infants by their guardian ad litem. It is unnecessary, however, to pass upon this question here.

The order appealed from must for the reasons given be reversed.

Denio, J.

I am of opinion that the order appealed from cannot be sustained.

(1.) The order of 6th June, 1848, is defective, in omitting the names of two of the infant heirs—Parmelia and Joseph Effing-ham Hyatt. They are not embraced in the direction to convey. This is the only order there is among the papers, adjudging that the contract should be specifically performed. It is fatally defective in the particular mentioned.

(2.) The second petition was framed with a double aspect; i. e. either to carry the above mentioned order into effect, or as an original petition for specific performance. The first branch of it was the one which was pursued in the subsequent proceedings. A new deed was prepared, based upon the order of the 6th June; and it is this deed which the appellant was ordered to receive, as an execution of the contract of sale. The deed was signed and executed by all the heirs, including the two infants, whose names are omitted in the order. The grant which they profess to make is void, because, being infants, they could not convey except according to an order made pursuant to the statute, and the order does not embrace them. In other respects the deed does not conform to the order. That requires the guardian ad litem to execute the deed in the name and behalf of the infants. It was not so done. The deed appears to have been executed and acknowledged by the infants themselves, though one of them was only about seven years old; and it contains in form personal covenants on their part. Mr. Mitchell, it is true, signed it, but it does not appear in what character.

If Seeley shall be compelled to accept this deed and pay the price of the land, he will not, I think, have a title to the shares of any of the infants, certainly not as to Parmelia and Joseph Effingham Hyatt.

The order of the 28th February, 1849, was a final order upon the second petition. The object of that petition was to bring Seeley into contempt for not performing the former decree. It Was a special proceeding, originating in the second petition, and the order appealed from was a final order affecting a substantial right.

The order appealed from should be reversed, without prejudice to any other proceedings, by complaint or petition, which the administrator or heirs of Joseph E. Hyatt shall be advised to take.

Order appealed from reversed.  