We must, I think, assume that the proceedings which resulted in an order to sell and convey the real estate of the lunatic were under the provisions of the Revised Statutes (2 R.S., p. 54), and not under the act of 1864, chapter 417, for the reason that the order recites the necessity for a sale to be only for the support of the family of the lunatic, and we must presume that the court *Page 187 made the order for that purpose, and disregarded other grounds stated in the petition. The act of 1864 does not authorize a sale for that purpose, but only for the support and education of the lunatic himself, and for the promotion of his interest for reasons specified in the statute, among which the support of his family is not included. It is unnecessary to determine whether there is any substantial difference in the steps required to be taken by the act of 1864 from those required by the Revised Statutes. The only apparent reason for the passage of the act of 1864 was to change, and in some respects enlarge, the grounds for selling the real estate of a lunatic, and it may well be claimed that the substantial requirements of the Revised Statutes were not intended to be dispensed with in proceedings instituted under that statute, except as therein specified. The question is whether the conveyance to the purchaser transferred to him a good title, and this depends upon whether the proceedings were valid.
The petition in this case was proper, and gave the court jurisdiction to proceed and determine the subject-matter involved, but it conferred jurisdiction to proceed not according to the discretion of the court, but in accordance with the statute. It was a special statutory jurisdiction, and could only be exercised as the statute directs. The statute (section 12) provides that on the presenting of such petition it shall be referred, etc. The referee is to examine into the truth of the representations made, to hear all parties interested in such real estate, and to report thereon. In this case no reference was made, and there was no hearing of the parties interested, and no report. We think that this requirement is substantial, and cannot be dispensed with, and that its omission constitutes a fatal defect in the proceedings. It may be that the same result would have been reached in this case as if a reference had been had, and the same would doubtless be true in a majority of cases, but the Legislature have seen fit to provide this as one of the safeguards for the protection of the real estate of persons who are incapacitated *Page 188 from acting for themselves, and it should not and cannot be disregarded. Courts might easily be imposed upon by ex parte statements of parties, while a public hearing would tend to develop the whole truth and bring out any reasons which might exist against the proposed sale. The statute is mandatory, and requires a hearing of all parties interested before the referee. If the reference is dispensed with, it is essentially an exparte proceeding.
I concur with the views expressed in the recent case ofBattell v. Torrey (65 N.Y., 294), by the Commission of Appeals, and they are authoritative against the validity of these proceedings. The purchaser does not seek to retract from his purchase, or to be relieved therefrom. He only asks that the title may be perfected by new proceedings conducted according to the statute, or that the purchase-money may be refunded. This is not unreasonable and can work no injustice.
The orders of the General and Special Terms must be reversed, and the motion granted, with costs, out of the estate of the lunatic.
The terms of the order if not agreed upon, may be settled by the court. The purchaser should be required to stipulate to pay as much as he before agreed to pay, and the committee should be allowed to procure more than that sum if he can do so.
All concur.
Ordered accordingly.