[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 296 The fact that Black, the grandfather of the infant Torrey, who, as the next friend of Torrey, petitioned for the appointment of himself as his special guardian for the purpose of selling or mortgaging his land, was also, as he claimed, the creditor of Torrey, and that his claim against his estate, for aught that appears by the proceedings, grew out of advances made and liabilities incurred by him, not as a guardian or by any authority whatever, but as a volunteer in maintaining a litigation in defence of his estate, and that the sale or mortgage asked for was to raise the means to pay such advances and liabilities does not, although it presents a state of things requiring the exercise of uncommon care on the *Page 297 part of the court in supervising the proceedings, raise a jurisdictional question; in all this the court acted judicially, and if it decided erroneously in respect to it, or made a mistake as to any other matter submitted to its consideration, not involving its jurisdiction to do, omit to do, or authorize to be done, cannot be questioned except by appeal, or in a direct proceeding to set aside, or vacate what has been erroneously done.
The presentation of the petition conferred upon the court jurisdiction over Torrey, the infant and the subject-matter, not, however, to proceed, in the exercise of its special and limited jurisdiction, in accordance with its own judgment, in disregard of the statute which, in derogation of the common law, authorized the proceedings and enacted "a list of things" necessary to be done before a conveyance by which "a sale, leasing or other disposition of the infant's real estate could be made." First. One or more suitable persons are required to be appointed guardians in relation to the proceedings on such application. Second. The guardians thus appointed are required to give a bond to the infant, in such penalty, and with such sureties, and in such form as the court shall direct, conditioned for the faithful performance of the trust reposed. Third. The bond being filed, the merits of the application are to be inquired into; this being done, the court becomes invested with authority to order the letting for a term of years; the sale or other disposition of the real estate by such guardian or guardians, so appointed in such manner, and with such restrictions as shall be deemed expedient; and, fourth, upon the agreement for a sale, leasing or other disposition of the property being made in pursuance of suchorder, and reported to the court on the oath of the guardian making the same, and then, if it be confirmed by the court, a conveyance shall be executed under the direction of the court. (2 R.S. [Edm. ed.], 202, 203, §§ 171, 172, 175, 177.) Each of the requirements of the statute were complied with, except the last, and that was disregarded. The grounds upon which it is claimed that the disregard of this provision of the statute *Page 298 does not invalidate the mortgage are, in substance: First. That it applies only to an agreement for an absolute sale, and not to a lease or other disposition of the property, or, as in this instance, to a mortgage; and, second, that a compliance with the provision could not be of any benefit to the infant. Why require the report of an agreement for a sale, leasing or other disposition of such property, if the only object was to determine whether a sale should be made. A mortgage is a sale upon condition. The terms of a lease are always more or less material, and so are the terms of any other disposition of real estate. In the case under consideration, it is hardly just to the court to suppose it to have been its intention that the guardian, under the order made, should be at liberty to mortgage the premises for any sum not exceeding $1,500, without first reporting an agreement for the precise amount agreed upon, and what proportion of it was for the cost of the proceedings, and when and where the mortgage was to be made payable, and when, where, and how often the interest upon it was to be paid. The order, as construed by the guardian, a creditor for whose benefit the mortgage was to be given, conferred upon him the power to consult his own will or necessities, or both, without any regard to the interests of his ward, to give a mortgage for the full sum authorized, just or not, and to make it payable at a time and place that would be greatly prejudicial to the interest of the infant, and yet valid as to the mortgagee. But assume that the court did intend to waive this requirement of the statute, or impart its jurisdiction to the guardian so far as to authorize him, instead of the court, to fix upon a sum between $1,200 and a sum not exceeding $1,500, for which the mortgage should be given; and, instead of the court, ratify and confirm his own agreement, not only as to the amount not exceeding $1,500, as well as to the time or times of payment, in either case, whether he intended to disregard this requirement of the statute or impart his jurisdiction to the guardian, he transcended his authority. A report by the guardian stating his agreement to mortgage, and the terms of it, was his plain duty, and then *Page 299 it would have become the duty of the court, the discharge of which might have greatly benefited the infant, to consider whether the time and place of payment of the principal and interest would be as beneficial to the infant as some other disposition of its property. This is a subject upon which the Court of Chancery exercised great care; one of the conditions required of such a mortgage was that it should not be foreclosed until the infant should arrive at the age of twenty-two years, so as to give him one year after arriving at full age to raise means to pay the mortgage. (2 Barb. Ch. Pr., 215.) The right to execute such a mortgage is, by the statute authorizing such proceedings, made to depend upon a confirmation by the court of the agreement reported; then, in the language of the statute, "if it beconfirmed, a conveyance shall be executed under the directionof the court."
A sale under a surrogate's order for the sale of real estate whose jurisdiction, like that of the court in this case, was special and limited, was held void for want of confirmation. (Rea and others v. McEachron, 13 Wend., 465.) This is one of the cases "where certain steps are authorized by statute, in derogation of the common law, by which the title of one is to be divested and transferred to another," in which the late Judge COWEN held the rule to be, that every requisite of the statute having the semblance of benefit to the former must be strictly complied with or the title will not pass. (Atkins v. Kinnan, 20 Wend., 241, 249.) This rule was repeated and enforced inSharp v. Speir (4 Hill, 76), and confirmed in the Court for the Correction of Errors. (Striker v. Kelly, 2 Den., 323.)
The order appealed from must be affirmed.
All concur.
Order affirmed, and judgment absolute ordered against plaintiff. *Page 300