
    Alexander Taylor, Jr., Respondent, v. Robert L. Chamberlain, Appellant.
    
      Vendor and purchaser — title derived, through .an administrator’s deed, given in proceedings taken in a foreign State — doubt as to the legality of such proceedings renders the title unmarketable.
    
    Upon the trial of an action brought to enforce the specific performance of an executory contract for the exchange of real estate, the defendant having refused to accept the plaintiff’s deed on the ground that his title was defective, it appeared that the plaintiff’s property was situated in the State of Connecticut, the plaintiff having acquired title' thereto under an administrator’s deed, the only authority for which rested upon a statute of the State of Connecticut. This statute allowed a Court of Probate to order a sale of the real estate of a decedent by an administrator, upon his giving a sufficient probate bond, and enacted that “ after the payment of all debts and charges and incidental charges of sale,” any surplus should 'he divided in the same manner as if the real estate itself had been divided. The proceedings in the Probate Court, did not show that the administrator ever gave any bond, nor did it appear that the sale was made to pay debts, and the probate judge testified that his court had no power to sell lands except for the payment of debts, although .there was other evidence to the effect that the Probate Court had such power.
    
      
      Held, that, under the circumstances, sufficient doubt existed as to the plaintiff’s title to the land to render it unmarketable, and that the defendant was' justified in his refusal to accept the deed thereof tendered to him.
    Appeal by the defendant, Robert L. Chamberlain, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 12th day of October, 1895, upon the decision of the court rendered after a trial at the Westchester Special Term.
    
      William, S. Maddox, for the appellant.
    
      Jacob Halstead, for the respondent.
   Hatch, J.:

The action _s brought to enforce the specific performance of an executory contract for the exchange of real estate.' The land owned by plaintiff is situate in the State of Connecticut; that owned by defendant in this State. After the execution of the contract plaintiff tendered a deed of his premises to the defendant and demanded from the latter a conveyance of his premises and the fulfillment, in other respects, of the provisions of the contract. Defendant refused to accept plaintiff’s deed or execute a deed of his property upon the ground, among others, that the title tendered by plaintiff was defective. The contract was silent respecting title, but the law implies that the parties are entitled to a good and indisputable title, and defendant was entitled to a title which was good, marketable and clear of defects, before he could be put in default of fulfillment of the contract. (Moore v. Williams, 115 N. Y. 586.)

The evidence given upon the trial disclosed that one Elizabeth Anderson was a prior owner of the plaintiff’s property, and she having died intestate, an administrator was appointed of her estate, and plaintiff derives his title through him, by deed executed in virtue of an order made and entered in the Probate Court for the district of Greenwich, in the State of Connecticut, that being the district where plaintiff’s property was situate. Plaintiff’s title is, therefore, dependent upon the construction to be placed upon these proceedings and the law of the State of Connecticut, if any, which authorized them. It was claimed by plaintiff that such authority was conferred upon the Probate Court by virtue of a certain statute adopted by the Legislature of the State of Connecticut. It became, therefore, incumbent upon plaintiff to establish the existence of such statute. The record does not disclose that the statute was at any time introduced in evidence. But a statute was read and a lawyer of Connecticut, sworn as a witness, testified that it was a statute of the State of Connecticut. As no objection was made to this testimony, and as the parties and probably the court considered that the statute was sufficiently authenticated, we may so treat it, although the manner of its reception in evidence did not comply with the law respecting proof which is requisite to establish the existence of a statute of a foreign jurisdiction. (Kenny v. Clarkson, 1 Johns. 385 ; Toulandon v. Lachenmeyer, 31 N. Y. Super. Ct. 45.)

The statute thus established reads: “ The court of probate, upon the application of the executor or administrator of any deceased person whose estate is in settlement in such court, upon hearing after published notice, may, in its discretion, order the sale of the whole or part of ■ any real estate or an undivided interest, therein, in such manner and upon such notice as it shall judge reasonable, taking a sufficient probate bond, and if of the amount realized, after the payment of all debts and charges and incidental charges of sale, a .surplus remains, the same shall be divided or distributed in the same manner as such real estate would have been divided or distributed if the same had not been sold.” The testimony tended to establish, and it seemed to be practically conceded, that no authority existed in the Probate Court to order the sale of a decedent’s real estate, except for the payment of debts, unless such authority be conferred by the provisions of this statute Let.us first examine the proceedings which were taken in the Probate Court which led to the sale. .and conveyance; ■ They consist of a petition, which recites that the deceased left certain real estate within the jurisdiction of the court — describing it; that it could not be beneficially divided, and that it is for the best interest of the estate that the whole of said ' real estate be sold, and prayed that it be sold after due notice and hearing had.. Upon the presentation of this petition an order of publication was made, and upon the return of proof of publication an order of sale was made, followed by an order accepting the return of sale, and subsequent proceedings on the distribution of the proceeds. The statute provides that upon the application to sell the court, if it grants the order, shall take a sufficient probate bond. There is nothing in these proceedings to. show that any bond was ever executed by the administrator, either upon these proceedings or in the general course of administration. It is the rule in this State that as Probate Courts are of limited and inferior jurisdiction, the creation of statute, it devolves upon those claiming authority and right under them to show affirmatively the authority and facts which confer-jurisdiction. (Matter of Hawley, 104 N. Y. 250; Works on Courts and their Jurisdiction, 431 et seq.) And this seems to be the rule in Connecticut, where it is said: “ An authority given to executors or administrators to sell is a personal trust or confidence and must be strriotly pursued.” (Lockwood v. Sturdevant, 6 Conn. 374.)

In that case the order authorized the administrators to sell real estate and raise the sum of $174.99, and they sold and granted by deed of the estate to the amount of $188. It was held that this invalidated the deed, and that a subsequent decree of probate distributing the surplus did not validate their acts. This rule would seem to be quite as strict as any which prevails in this State. (Griswold v. Bigelow, 6 Conn. 259.)

We are not now called upon to say that the omission to give a bond, or the failure to show that one was given, avoids this proceeding; it is all sufficient to say that it puts in jeopardy the title tendered. If, however, we could see that this did not affect plaintiff’s title, there yet remains a more serious question upon the jurisdiction of the Probate Court to make this order of sale. This proceeding was confessedly not necessary to pay debts, nor does it appear that any debts existed. At common law the land- passed to the heir and the administrator took no interest in' the estate. This is the rule here and also in Connecticut (Griswold v. Bigelow, supra); consequently, the administrator could convey no title unless authorized by the proceedings had and taken.

This proceeding was taken purely for the purpose of dividing the estate. It would properly have fallen to the office of a suit in partition. The statute seems to contemplate that the power conferred bears some relation to the payment of debts, as its language is, “ of the amount realized after the payment of all debts ” the surplus shall be distributed. The testimony of the probate judge, called as a witness for the defendant, is to the effect that there exists no power in the Probate Court to order the sale of real estate, except for the payment of debts. We may safely assiime that a judge of the court who has sole authority to exercise this power, if it can be exercised at all, knows what the law is and his jurisdiction. • He is also supported in this view by the testimony of Mr. Mead, the town clerk and a lawyer of the State of Connecticut. It is true that Mr. Hubbard, the lawyer who conducted these proceedings, testified that they were regular, that the court was possessed of jurisdiction under this statute, and that the Superior Court had so decided. This, at the most, presented a conflict of evidence as to what the law is We are not called upon to now construe this statute or determine the question of fact thus presented. We are clearly able to say that .the question of right in the Probate Court to order this sale is one of grave doubt, and that, in the absence of a controlling adjudication upon the question by the courts of Connecticut, we think no person- ought to be compelled to take a title under it. Such condition clearly creates an unmarketable title, and defendant was justified in his refusal to accept the tendered deed.

These views lead to a reversal of the judgment and the ordering of a new trial.

All concurred.

Judgment reversed and new trial granted, with costs to abide the event.  