
    Ellen A. Reals, Plaintiff, v. G. Bernice Low Weston, Defendant.
    (Supreme Court, Onondaga Trial Term,
    June, 1899.)
    1. Incompetent persons — Order to mortgage affords no authority to sell.
    An order authorizing the committee of a lunatic to mortgage the latter’s real estate in order to pay bis debts affords the committee no authority to sell, and a deed executed under such sale is void.
    2. Same — Equity will reimburse a bona fi.de purchaser.
    Where, however, the purchaser has acted in entire good faith and has paid a ful’, consideration upon the sale, equity will award her a lien upon the premises for all the moneys which she has paid to or for the committee in the matter of the sale. "
    3. Same —Inquiry as to sanity, under chapter 446, Laws of 1874, is limited to the period of the inquiry.
    The Eevision Act of 1874, relative to the insane (chap. 446,'§ 2), limits an inquiry as to sanity to the particular time when such Inquiry is actually being made and affords no authority for a finding that the lunatic had been incompetent for the space of about eight months previously"; nor can such a finding be used to nullity payments which the purchaser had made, as a part of the consideration, upon mortgages which the lunatic had executed during said eight months.
    This action is one of ejectment brought to recover the possession of certain premises situate in Onondaga county together with damages for withholding possession of the same.
    Edwin W. Parsons, for plaintiff.
    Cook, Nottingham & Pierce, for defendant.
   Hiscock, J.

The premises in question originally belonged to one Wright, who died intestate on or about July 31, 1896, leaving plaintiff his only heir-at-law. Some years before his death and in or about the month of December, 1877, Wright was duly adjudged a lunatic and incapable of managing his property and one Gove appointed committee thereof. Gove continued to act as such committee until the death of the lunatic. By proceedings commenced about April 1, 1878, he attempted to dispose of the lunatic’s real estate in question for the purpose of paying his debts. Those proceedings were originally directed to the end of giving a mortgage upon it, but they finally, about a year later, resulted in a sale and deed under which defendant claims.

Various objections are made by plaintiff to the legality of the deed and proceedings which led up to it. I shall only find it necessary to consider one of them.

The steps which were taken for the disposition of this real estate under the statutes providing for such proceedings in reference to lunatic’s real estate with their respective dates were as follows:

April 1, 1878. Petition by committee showing, amongst other things, mortgages upon this real estate amounting to $906.50; other debts of lunatic, $411.25; total, $1,317.25. And personal property owned by the lunatic of about $116, and asking for leave to sell or mortgage the property in question for the purpose of paying said debts.
April 3, 1878. Order of reference to report on matters set forth in petition.
April 3, 1878. Beport of referee that it was necessary to mortgage or sell for payment of debts.
April 3, 1878. Order authorizing and directing committee to mortgage.
April 2, 1879. Report hy committee that he had sold the premises to defendant for $1,600, subject to the approval of court.
April 7, 1879. Order confirming report and directing sale and delivery of deed to defendant upon receipt of purchase price, and in accordance with which deed was subsequently delivered.

It will thus be noted that the only authority obtained by the committee for disposing of these premises before he made a sale of them was an order permitting him to mortgage them.

Subject to the discussion hereafter of defendant’s claims upon that point and upon which I shall find against her, the preliminary order permitting a sale required by the statute before any sale or contract of sale could be made by the committee, was never obtained.

The preliminary order obtained provided for an entirely different course of proceeding, viz., a mortgage.

It is too well settled to require citation of authorities that the omission to comply with a statutory provision in relation to the disposition of lunatic’s estates so important as this is fatal, and that a deed based upon such erroneous proceedings cannot be upheld as such.

Assuming the facts as above indicated, this was substantially conceded by defendant. But it was urged by her that there was such evidence or presumptions in favor of the existence of such preliminary order for sale, as ought to prevail

The direct evidence upon this subject, given by an employee of the county clerk’s office in regard to the nonexistence of such an order, is pretty conclusive. But this took place in these proceedings to which defendant especially refers. In his report of sale above mentioned, presented to the court, the committee states, “ In pursuance of an order of this court in the above matter, dated the 3d day of April, 1878, authorizing and directing me to sell,” etc. And the order entered upon such report recited On reading and filing the report of * * * the committee * * * stating that he had sold * * * the premises specified in an order issued by this court on the 3d day of April, 1878,” etc.

Upon these facts and recitals are invoked, as creating a presumption that a preliminary order of sale was made, the well-settled principles that recitals contained in orders or judgments of certain courts that certain steps in the proceedings of which they are a part have been taken, make prima facie evidence that they have. But I find no sufficient recitals to sustain the claim. The order referred to does not by any means recite that such an order was obtained. It simply recites that the committee had presented a report that he had sold premises described in a- certain order, and which the committee, as claimed in his report, but not as recited in the order then being made, authorized a sale. I am not aware of any law under which such a statement by the committee, even though under oath, creates any presumption in favor of the existence of the order claimed. Furthermore, the statement in the report describes by date, etc., a certain order. The only order answering that description is one for a mortgage, and there is very conclusive evidence that there was none for a sale to answer the description.

Passing by this question, however, defendant setting up by her answer and urging upon the trial the fact of her payment of the full consideration of $1,600 for the premises, insists that she should in some way have credit for this, although the deed cannot be sustained. I think she should. There is no suggestion of bad faith upon her part or any evidence that she even drove a hard bargain with the lunatic’s estate. She seems to have acted with perfect propriety and in her present predicament to be a victim of blundering upon the part of the committee and his attorney.

The order confirming and authorizing the committee to carry out the sale provided that defendant should pay $1,600 and the committee was to apply such sum to the payment of the lunatic’s debts, including the mortgages hereinbefore mentioned. As a matter of fact, the purchaser paid off the mortgage amounting to between $900 and $1,000, and gave the balance of the $1,600 to the committee.

These mortgages had been executed by the lunatic, and two of them, aggregating about two-thirds of the entire amount, within six months before he was adjudged a lunatic. The jury, by their inquisition, found that Wright was not only a lunatic when that was executed, but that he had been in that condition “ for the space of about eight months.”

Plaintiff insists that defendant certainly ought not to have any relief for the payment of these mortgages, first, because she should have paid all the money to the committee and have allowed him to pay them; second, because the finding of the jury establishes that Wright was of unsound mind when he gave two of them and they are void.

I do not regard the first objection as a substantial one in this connection. No question has been made but what defendant paid the mortgages at the amounts claimed by her. This being so, the estate of the lunatic and this plaintiff as his heir got the same benefit from the payment whether made by the hand of one or the other.

So far as the second objection is concerned, there is no binding evidence against defendant that Wright was a lunatic when these mortgages were given, unless it be found in the inquisition above referred to. That did so find. But at the time it so found, a provision substantially as now found in section 2335 of the Code was in force limiting the question of mental sanity to the time when the inquiry was being made. Laws of 1874, chap. 446, § 2.

The finding of the jury, therefore, as to Wright’s condition before that was unauthorized and establishes nothing certainly against defendant.

I have no doubt about the power and duty of the court to equitably protect the defendant in this transaction. This purpose will be accomplished by a judgment giving defendant an equitable lien upon the premises in question for the amounts paid by her to the committee, and upon the mortgages as aforesaid, with interest from the date of payment less the rental value of the premises during her occupation, and which has been about $65 per year, and upon payment of or subject to such lien allowing plaintiff possession of the premises.

Ordered accordingly.  