The court below have held in this case that a lunatic defendant can voluntarily appear, and that a guardian ad litem may be appointed for him by the court, in an action for the partition of land situated in this State, in which the lunatic owns an interest, on the petition of a general guardian appointed by a court in another State, *Page 543 with whom the lunatic resides, without any service of the summons, either personally or by publication.
At the sale of the premises under the decree in partition, they were bid off by Joseph Richardson for the price of $80,250.
After an examination of the title, an objection was taken to the regularity of the judgment under which the sale was made, for the reason, among other things, that one of the heirs had not been served with the summons, and the petition for the appointment of a guardian ad litem disclosed the fact that he was an infant and an idiot or a lunatic, and that the petitioner was his guardian, appointed by the Probate Court in Warren county, Ohio, not claiming any authority as a committee or guardian of the person or estate of the lunatic infant by virtue of an appointment under the laws of New York. Mr. Richardson thereupon applied to the court below at Special Term to be relieved from his purchase, and for the return of the ten per cent of the purchase-money deposited at the sale, with interest and the expenses incurred about the examination of the title. This motion was granted, with an allowance of $100 for the expenses, and $50 for the costs of the motion.
The General Term reversed this order on an appeal, and Mr. Richardson was required to complete his purchase, provided the plaintiff, within forty days, procured an amended petition, to be filed by the Ohio guardian, showing that the lunatic resided with him, or was under his immediate charge at the time of verifying his former petition; such amended petition to be filed nunc protunc. If not so amended, the order of the Special Term was affirmed, except as to the costs of the motion, which were reduced to ten dollars, and ten dollars costs of the appeal were also allowed to the purchaser. From this order of the General Term the purchaser now appeals to this court.
The practice of the plaintiff has proceeded upon the theory that a foreign guardian was authorized under the laws of this State to represent his ward in our courts, and in substance, too, his lands situated here. *Page 544
The question now is not whether any wrong has been done to the party, or whether he will, in fact, sustain any prejudice. It may be fairly assumed, from the character of the gentleman who was appointed to take charge of the rights of the infant in the action, that his duties have been properly performed. There is no complaint on that ground. The objection relates to the jurisdiction of the court over the party, and the consequent power to adjudge a legal and valid sale of his interests, so that the purchaser will acquire a perfect title. It is the right of the purchaser to have such a title, and if it is defective he will not be required to complete the purchase. This practice, under judicial sales in partition and foreclosure, has been long and well settled.
The incapacity of the defendant, in respect to whom the objection to the title arises, is twofold. It is conceded that he is an infant, and also an idiot or lunatic. It is so stated in the petition of the Ohio guardian. It is not made to appear, however, whether the guardian was appointed in Ohio, in respect to one incapacity of his ward, only, or both; nor as to which of them; nor does it appear whether he is a guardian of the person only, or of the estate of the ward also. The ward was about the age of twenty years when the application was made, and when the amendment was afterwards authorized by the order of the General Term, he was over twenty-one years of age.
The appointment of the guardian ad litem was not made pursuant to any provision of the Code, nor of the Revised Statutes. It was not indeed so claimed, either by the learned counsel who argued the appeal on the part of the respondents, nor by the learned justice who delivered the prevailing opinion of the General Term. (Rogers v. McLean, 11 Abb. Pr., 440.) It is unnecessary, therefore, to discuss the steps required by the Code for the appointment of a guardian ad litem for an infant. (§ 116.) Nor is it now claimed that the summons has been served upon this defendant, either personally or by publication. (§§ 134, 135.)
It is claimed that there has been a regular voluntary appearance on behalf of this defendant, or what is an equivalent *Page 545 thereto, pursuant to section 139 of the Code; and also that the Supreme Court, being vested with the equity powers of the English Court of Chancery, is the guardian and protector of the estate and rights of idiots and lunatics, and can officially represent them; and that it is not necessary that such a person should be made a party.
In my opinion, neither of these positions can be sustained. Had the incapacity of this defendant been that of infancy, merely, there was a failure in the proper proceedings to obtain a competent voluntary appearance. The infant in such case, being over fourteen, should have signed the application for the appointment of his guardian ad litem, or in case he had neglected to apply, the order directing the appointment should have been served on him, or some relative or person with whom he resided, in such manner and for such a length of time as the court, in the order, should direct. (Code, § 116.) There is superadded in this case the incapacity of idiocy or lunacy. An idiot or lunatic has no will or capacity to act for himself. He cannot personally apply, nor can he be put in default for not applying. It has been held in the Supreme Court, and I think on sufficient grounds, that the nearest relatives by blood cannot apply for the appointment of a guardian ad litem for a lunatic defendant without the service of summons. (Heller v. Heller, 6 How. Pr., 194, HAND, J.)
The authority of the foreign guardian, whether it related to the person or estate of his ward, and whether made in respect to his infancy or lunacy, is strictly local. It does not extend over the person or property of his ward in the State of New York. (Story on Con. Laws, § 499).
This rule is said to be founded on the same policy which has circumscribed the rights and authority of executors and administrators within the territorial limits of the laws of the State from whence they have received their appointment. (Same section.) A guardian appointed in another State has no right to receive the rents or to assume the possession of the real estate of his ward in this. (Story on Con. Laws, § 504.) *Page 546
For the same reason he would be as little authorized to cause the voluntary appearance of his ward in an action here, the object of which was to procure a judgment for the sale of his real estate. There appears to be nothing upon which to base an amendment so as to make a regular voluntary appearance for this infant lunatic. Although he has become of age, he has not the capacity to ratify the proceedings. Had there been a committee appointed under the laws of this State, possibly, by permission of the court, a regular voluntary appearance might have been perfected. It is not necessary, however, to express an opinion on such a case, as it is not before the court.
In the cases referred to by the learned justice below, in which the voluntary appearance of an infant has been approved, there had been an authorized application pursuant to the Code. But the present case fails in that respect. There is no party, known to the laws of this State, authorized to make an application for this infant lunatic. (Varian v. Stevens, 2 Duer, 635.)
It was also urged, in opposition to the application, that the Supreme Court had the supervision of the estates of idiots and lunatics, and were authorized to represent such a party in any action concerning his property or estate, by virtue of the equity power devolved upon that court by the Constitution, and that it was not necessary that such a person should be brought in by the service of process.
This action was not brought in respect to the administration of the estate of the idiot or lunatic, nor can the court assume that such is his condition for the purpose of administering his estate, until he has been so found, under proceedings for that purpose, pursuant to the laws of this State.
The relief here sought may not be for his advantage; at least the court are not authorized to assume it to be so. If the rule were as extensive as has been claimed, I cannot perceive any facts to guide the court to the determination that the interests of the infant lunatic require a sale of the premises.
The object of the action is the partition of land; the judgment is for a sale of improved real estate, which must pay a *Page 547 large rent, in which the lunatic has an interest. This is a change not usually favored by courts of equity in respect to the estates of lunatics. The Supreme Court are not, I think, called upon to volunteer a supervision under such circumstances, or where their supervision will necessarily produce a result of uncertain advantage to the lunatic.
The case of Ganse, a lunatic (9 Paige, 415), holds that a commission of lunacy may issue where the lunatic has lands within this State, although he is domiciled abroad.
The principle referred to by the learned counsel for the respondents cannot, I think, be invoked by third parties, except in the case of creditors or some one having a cause of action against the idiot or lunatic, and then, only after such has been found to be his condition under proceedings instituted to determine the question.
It seems entirely clear that this infant lunatic has not been properly brought into court, either as a lunatic or an infant, and that the court cannot lawfully exercise any jurisdiction to adjudge a sale of his real estate. The purchaser will not, therefore, acquire any title to the interest of the infant lunatic in the land, and cannot be directed to pay his money and take a conveyance.
The order of the General Term should be reversed, except as to the direction concerning costs, and the order of the Special Term should be affirmed, except as to the sum of $50 costs of the motion, which should be reduced to $10, and the appellant should recover his costs on this appeal, as well as the appeal below.
Order of General Term affirmed. *Page 548