
    Patrick O'Reilly, plaintiff and respondent, vs. Edward King, defendant and appellant.
    1. In equity, a reluctant purchaser will not he compelled to take a doubtful title. If the doubt of the sufficiency of the title be reasonable and practical, the court, in its discretion, will excuse performance by the purchaser.
    2. At law, however, the rule is different. There the party repudiating the contract, and seeking to recover back a deposit, must satisfy the court that the title is absolutely bad, and before he can succeed; the court must so decide. A merely doubtful title will not be sufficient.
    3. The power of the Supreme Court to authorize a sale of the real property of infants, by a special proceeding, is Wholly a creation of the statute, and is not inherent in it as a court. Hence the statute must be strictly followed, and its. terms fully complied with.
    4. A petition for the sale of real estate of infants was entitled “ The petition of, &c. infants, by their next friend.” Held that this Was the application of the infants, by their next friend, as required by the statute; and that the Supreme Court having determined that it was sufficient in substance, a mere departure from some prescribed form or rule of court would not affect the jurisdiction of the court, over the application.
    5. Such an application may be made by an uncle of the infants, being their only male relative, as their next friend; and the fact that he is a creditor of the infants does not "constitute an adverse interest which will disqualify him.
    6. A special guardian appointed to sell the real estate of infants, when authorized by the court, nlay properly unite with other tenants in common of the property, in making a conveyance.
    (Before Robertson, Ch. J., and Monell and Garvin, JJ.)
    Heard October 29, 1864;
    decided December 31, 1864.
    ' This was an action to recover a deposit of $600, made upon a contract for the purchase of two lots of land. The contract promised that if the title, on examination, should prove insufficient, the deposit should be paid back. The objection to the title was that certain proceedings in the Supreme Court for the sale of the interests of infant owners were defective.
    The action was-tried before the Chief Justice of this court, without a jury, at a special term. The following conclusions of fact were found :
    1. The contract in the complaint and answer mentioned, dated April 30th, 1862, was made by and between the plaintiff and defendant.
    2. That at the time of making the said contract the said premises were owned by the seven children of Isabella Cochran therein mentioned, four of whom were infants under the age of 21 years, viz. Lucy, Harriet, Caroline and William Cochran, and the remaining children were of full age, viz. Rupert, Isabella and Bayard Cochran. '
    3. That the said defendant was not authorized by the said infant children of the said Isabella Cochran, nor by James Brown, the alleged special guardian of said infants, to make the said contract at the time of making the same.
    4. That at the time of making the said contract, the plaintiff had no knowledge that any of the said children of said Isabella Cochran were infants, nor that any deed of conveyance of said premises was to be executed by a special guardian of such infants, nor that the title to said premises to be conveyed thereby was to be founded upon the proceedings hereinafter mentioned, or any similar proceedings.
    5. That the plaintiff paid the sum of $600 at the date of said agreement, and soon thereafter entered into possession of the said premises, but only remained in possession until about the 15th day of June, 1862, when he relinquished the same to the owners thereof, who accepted the same in November following.
    6. That immediately after entering into such contract the said plaintiff employed competent counsel to examine the title to the said premises, who, upon an examination thereof, deemed the title thereto to be insufficient.
    7. That on the 3d day of August, 1858, a petition was presented to the Supreme Court for the sale of the interest of the said Isabella, • Bayard, Lucy, Harriet, Caroline and William Cochran, six of the children of Isabella Cochran, deceased, in certain real estate, at which time all of said children were under twenty-one years of age—the first four being over 14 years, and the last two under 14 years of age; such petition was only signed by the first four infants, and, on behalf of the last two, by Bayard Clarke, their maternal uncle, described therein as next friend ; but the said Bayard Clarke was not the general guardian of said infants, or any of them, nor was any proceeding ever taken to appoint him the next friend of them, or any of them, in relation to such application.
    8. That on such petition and affidavits accompanying the same, an order was, on the 3d day of August, 1858, made by the said Supreme Court, which appointed George H. Brown the "special guardian of all the infants, to conduct the proceeding on such application, on giving security, and referring it to a referee therein named, to inquire, among other things, into the truth of the facts alleged in such petition.
    9. That the said referee- made a report to the said court, dated the 17th day of June, 1859, and annexed thereto the testimony taken before him, and upon such report an order was made directing the said special guardian to sell the right of the said infant petitioners in the premises mentioned in the said petition.
    10. That nothing was done on such proceeding until October, 1859, at which time the said special guardian applied to the court by whom he was so appointed for his discharge from the office, and for the appointment of James Brown in his place, and an order to that effect was made accordingly.
    11. No action was taken by such substituted special guardian under or in pursuance of said order, and no contract was ever made or entered into by the said special guardian, or his authority, for the sale of the premises mentioned therein, or any of them.
    12. In October, 1862, the said James Brown, as special guardian, presented a report to the said court, dated the 28 th day of October, 1862, setting forth the making of the contract set out in the complaint, as made by his authority, and an order was made on the 30th day of October, 1862, authorizing such special guardian to convey the interest of the said infant petitioners to the plaintiff in this action, on the terms of the contract between the plaintiff and defendant.
    13. That on the 31st day of October, 1862, a conveyance of the premises in the contract, dated October 31,1862, executed by Rupert J. Cochran, and Bayard 0. Cochran, and the defendant, and Isabella his wife, all then of full age, and by Lucy, Harriet, Caroline and William, by the said James Brown, special guardian, was tendered to the plaintiff, and a bond and mortgage from the plaintiff to said seven parties as obligees, were also presented to him for execution by him, and a demand that he should execute and deliver the said bond and mortgage, and pay the residue of the purchase money made upon the plaintiff,, which he refused, on the ground that he had been advised by his counsel not to take the title, and that the 'plaintiff at the same time demanded a return of the money paid by him.
    14. That the said order of October 30, 1862, and the proceeding which resulted therein, were obtained and conducted without any notice to the plaintiff, and he had no knowledge thereof at the time of ^said tender "and refusal, or any time before the trial.
    15. That the premises mentioned in the contract between the parties hereto are a part of those mentioned in the said petition, presented to the Supreme Court on the 3d day of August, 1858, and in the subsequent proceedings based thereon, and that no other reports,- petitions, order or proceeding, in respect to the said premises, were made or had, than those hereinbefore referred to.
    16. That the said Liicy; Harriet, Caroline and William, at the time of the commencement of this action, were under 21 years of age, and the said Isabella and the said Bayard C. Cochran were of full age.
    17. That the title to said premises were insufficient, and that the plaintiff would not, by the conveyance tendered to him, have acquired a sufficient title to the said premises.
    And, as conclusions of law, the court found that the plaintiff was justified in refusing to accept the conveyance tendered to him, and that he was entitled to recover from the defendant the sum of six hundred dollars paid to the defendant under the aforesaid contract, with interest from the first day of November, 1862, amounting to the sum of $670, besides the costs of this action, to be adjusted and allowed, and that the plaintiff was entitled to judgment accordingly.
    From the judgment entered in accordance with these findings, the defendant appealed.
    
      
      John E. Parsons, for the appellant.
    
      John E. Burrill, for the respondent
   By the Court,

Monell, J.

I am unable to subscribe to the views of the learned chief justice, that the title offered to the plaintiff was insufficient, and so doubtful that he had a right for that reason to disaffirm the sale and recover his deposit. If the action had been on the equity side of the court to compel Reilly to take the title, I should express any opinion of its sufficiency with much hesitation. The difficulties suggested by "the chief justice would, of themselves, cause me to hesitate, and perhaps to doubt. But the action is at law to recover back the deposit upon a rescission of the contract of sale. And I think the error of the learned judge was in applying the rule in equity instead of the rule at law to a question involving the sufficiency or goodness of a title to real property. The court, in the exercise of its equity powers, will not compel an unwilling purchaser to take a doubtful title.

Much discussion has been had as to what is a doubtful title. If the court is fully informed of the facts, it must know whether a title is good or bad. If the facts are not fully disclosed, it may with propriety doubt. It is, however, with practical certainty and practical doubts that the court must deal. In the language of Lord Hardwicke, (Lyddal v. Weston, 2 Atk. 19,) “ the court must govern itself by a moral certainty, for it is impossible, in the nature of things, there should bo a. mathematical certainty of a good title.” Where the doubt of the sufficiency of the title is reasonable and practical, the court in its discretion will excuse performance by the purchaser.

The rule, however, at law, is quite different. There the party disaffirming the contract must satisfy the court that the title is absolutely bad, and the court must decide that it is absolutely bad, before the party can recover. A merely doubtful title will not do. (Romily v. James, 6 Taunt. 263.)

The question then arises, whether upon the facts in this, case the title offered by the defendant is had, That is the question to be decided in this case.

I pass over all the objections to the title, except three, being satisfied, for the reasons so well expressed by the chief justice, that they are really groundless.

The first objection I shall notice is, that it is doubtful whether the Supreme Court acquired jurisdiction of the proceeding to effect a sale of the infants’ interests. The power of the court to authorize the sale of the real, property of infants is derived from the statute, and is not inherent in the court; hence the statute must be strictly followed, and its terms fully complied with.

The language of the statute (2 R. S. 194, § 170) is, “ Any infant seized of any real estate * * * may by his next friend * * apply to the court. * * for the sale,” &c.

The petition before us was by Isabella R. Cochran, &c. infants, over the age of fourteen years, and Caroline Ella Cochran, &c. infants, under the age of fourteen years, “ by Bayard Clark, * * their uncle and next friend, and only male relative of full age.” The petition is signed by Bayard Clark, without any addition to his name, of next friend, as respects the infants over the age of fourteen years, and by all the infants in person.

There is nothing in the statute prescribing the manner in which an infant may apply to the court. And I see no reason why he may not, by his next friend, apply orally. The courts have established rules on this- subject, but they are mere rules, which the court may, in its discretion, at any time disregard. (Dicas v. Brougham, 6 Car. & Payne, 248.) The late Court of Chancery, at an early day, adopted a rule on this subject, which subsequently became and continued the 158th standing rule of that court, and which required the application to be made by petition, prescribing its contents. But there is no doubt that the court may, in a given case, depart from the rule and allow the application to be made in some other way, and I can see no reason why it may not be made orally, although it probably would not be wise to allow such a practice. The material question is, did the infants apply by their next friend ? The form of the application is of no consequence, if the substance was there, The description in the petition is clear : “ The petition of, &c. by their next friend.” No one can doubt, I think, that this was the application of the infants, by their next friend, as required by the statute. And, the Supreme Court having determined that it was sufficient in substance, the mere departure from some prescribed form or rule of court would not affect the jurisdiction of the court over the application. The case of Hyatt v. Seeley, (11 N. Y. Rep. 52,) is not opposed to this view. In that case, the order authorizing the sale directed the deed to be executed by the guardian “ in the name of the infants.” It was executed by the guardian with the designation of guardian, &c. without naming the infants in the body pf the deed or elsewhere. But the court intimate, that if the deed had purported, in its commencement, to be made by the infants, it would have been sufficient. Besides, that was an application to the equity side of the court to compel the purchaser to take the title.

Second. It is objected that the application by Bayard Clark, as the next friend of the infants, was improper. The objection, however, was chiefly that he was a creditor of the infants. That was not an adverse interest, and nothing short of an interest in opposition to the interests of the infants, in the property sought to be sold, would disqualify even a special guardian. The statute does not tell us who is the next friend, nor how he is to be selected or appointed. The 158th rule of the late Court of Chancery said some relation or friend might make the application ; and in one case (Matter of Whitlock, 32 Barb. 48,) the mother was deemed a suitable and proper person. In this case the next friend is described as being their uncle and only male relative of full age. I cannot doubt that so near a blood relation is the next friend within the meaning of the statute,

Infants being non sui juris, cannot act for themselves, and the policy which requires the interposition in their behalf of a next friend is fully met by the presumption that the person selected will, from motives of love and affection, be desirous to promote and preserve their interest; and the next friend may therefore well be considered the near friend. I can but believe that any one may he the next friend ; hut it is the duty of the court, as the universal guardian of the persons and estates of infants, to scrutinize closely the qualifications and disinterestedness of those who present themselves as such.

The Supreme Court having entertained the application, we must presume that they were satisfied that the next friend was a suitable person to apply for the infants. And, as-the statute does not disqualify him, I cannot see how any question can seriously be raised against the validity and regularity of the proceedings in that respect.

Third. The objection that the special guardian of the infants entered into a contract of sale conjointly with the adult owners, and that the deed tendered to the plaintiff was in like manner executed by the guardian, jointly with the other owners, seems to me to have no foundation. The guardian .could neither agree to sell, nor could he convey any other than the infants’ interests. The order authorized that, and no more, and to that extent and no further did the guardian agree to sell, or did he convey. That other parties, owning other interests, joined in the same contract and deed, could not deprive either instrument of its binding effect upon -all concerned.

In looking throughout these proceedings, I. have not been able to detect any departure from the statute. There has been, it seems to me, not only a substantial but a literal compliance with its terms. If there was any departure, it was from some rule o# prescribed form of court, unessential (except as preserving uniformity in practice,) and subject to change at any time, but in no way impairing the validity of the proceeding.

The contract provided that if the title should be found to be “ insufficient,” the deposit should be returned. Eo greater signification can be given to the word insufficient than its natural meaning, pamely, that the title should be adequate, and such as should suffice and be equal to the end of vesting a good title in the purchaser. The parties doubtless meant that, if the title was defective, and the purchaser would not get a good title, the contract should be at an end- But they did not mean, nor are the words used capable of the meaning, that the title should be absolutely and mathematically proven to be good.

In any aspect I can view the case, I cannot conclude that the title is bad, or even that there is, as was said by Baron Alderson, (Cattel v. Corrall, 4 Y. & C. Ex. 237,) “ a reasonable, deoent probability of litigation ” about it.

I am, therefore, of opinion that the conclusion of the chief justice was erroneous, and that the judgment should be reversed, and a new trial granted, with costs to abide the event.

Robertson, Ch. J.

(dissenting.) I have not been able to satisfy myself, from any thing advanced before us, of the absence of all obligation on the part of the defendant to restore to the plaintiff his deposit.

There seems to be no doubt of the title to the land in question of the parties on behalf of whom, as vendors, the contract in question was made. Without reference to the minority of some.of such vendors, the pendency of proceedings to authorize some disposition of their interest, and the authority given to a special guardian to sell or mortgage as he should think fit, and laying out of view the fact that it was made by an agent, it appears on its face to be a mere contract by owners of land to sell and convey it, giving a good title therefor by a certain day. By introducing such extraneous facts, not noticed in the contract, it is sought to be converted into a mere con.tract, by the defendant or his principals, to procure a conveyance of a good title, by a certain day, which, of course, would be entirely speculative. To accomplish this, the condition of the return of the deposit, in case of the insufficiency of the title on examination, is brought down to a mere absolute failure of title. The procuring of an order from a court authorizing the execution of a conveyance two days before the time for delivering it expired, and a tender of such conveyance one day before that time, is claimed to be a compliance with such contract, although no time was thereby afforded for any examination of- the title at all. Both parties, on the contrary, treated the examination spoken of as one to be commenced forthwith, when, of course, the infancy of some of the vendors, the inchoate condition of the authority to the special guardian, and the alternative character of the disposition thereby authorized as being to sell or mortgage, might be 'discovered. Nothing short of prophetic power in such case would have enabled the plaintiff to discover, on his examination of the title, whether the Supreme Court would or not authorize a sale and confirm the contract in question. The fact that they did so has no bearing on the question whether the title thereby to be acquired was that to investigate which the plaintiff was entitled, as well as to a reasonable time for the purpose of discovering its sufficiency, I apprehend that the only legitimate construction of such contract, according to its terms, is, that the vendors therein named undertook that they had a good title, wliich they would be ready to convey, on or before the succeeding first of November, into an examination of the sufficiency of which the plaintiff could forthwith enter. And the legal result of it was, not that the plaintiff was bound to wait until the succeeeding first of November to ascertain whether a title could then be acquired, which he' was bound to take without examination, provided it should eventually prove to be good, but that if, on an immediate examination, he could find no one authorized to give him a title, he could rescind the contract and recover back his deposit. Under the contract, there was one from whom the plaintiff could at any time demand a conveyance, and the defendant could retain his deposit until at least the first of November, and then pay it to him back, and thus rescind the contract.

I cannot but regard the word “insufficient,” as applied to the title in this contract, as meaning something more than defective. The warranty of a good title implied in every sale of lands, (Burwell v. Jackson, 9 N. Y. Rep. 535,) was already inserted in express terms. And it was stipulated that “ if the title should, on examination, be found insufficient,” the deposit, with interest, was to be returned. Some act of examination was necessary, which was to be done by the plaintiff, and the word “ insufficient,” as expressive of its result, did not describe an absolute but a relative defect, having regard to some purpose or consequence. Taken in connection with the examination to be made, it probably was used in a sense similar to unsatisfactory to the plaintiff as a purchaser, that is, one to which a reasonable objection could be made, with which the party onght not to be satisfied, (Fagen v. Davison, 2 Duer, 158,) and not as an absolutely bad title, or none at all. I think, however, that the making of the contract for vendors incompetent to convey any title, the title proposed to be given by a guardian appointed in a judicial proceeding, whose authority to sell rested entirely on the future discretionary action of the Supreme Court, in which such proceeding was pending, and against whose neglect or omission the plaintiff had no redress, and the character of the contract being a sale not yet sanctioned by the court in question, and, therefore, not binding on the supposed vendors, formed reasonable grounds of objection to the title within the meaning of such contract. Such objection was substantially stated by the plaintiff' on the tender of the deed.

Upon either ground, therefore, that the contract was made, on behalf of persons incompetent to convey, and was not a mere covenant to procure a title in future, or that no authority to convey was vested in any one, thus rendering the power of giving the title agreed to be given impossible, and, of course, any title that could be given to the plaintiff insufficient, I think he had a right to rescind it. If the examination of the title was to be made after the acquisition of authority to convey, I think the objections specified in my opinion at special term were good grounds for rescinding the contract, as render- ' ing the title insufficient within its meaning. I think the judgment should be affirmed.

New trial granted.  