This is an action of ejectment, in which the plaintiffs claim title to the premises in dispute as devisees under the will of Henry D. Fitch, deceased, and the defendants claim title under a sale of the same premises by the guardian of said devisees, under the order of a Probate Court, and the question for decision is, whether the provisions of the statute under which such sale was made, were complied with in the particulars essential to the validity of the title acquired by the purchasers. The proceedings were not conducted with the careful regard to the directions of the statute which them importance required, and various irregularities appear in the record. The point of difficulty in this, as in other similar cases, is to see that the safeguards provided by the law for the protection of the estates of infants against the frauds or negligence of those to whose care they are necessarily intrusted have been observed, and at the same time not to allow innocent purchasers to be divested of their property by minute objections to the form or manner in which the proceedings have been conducted not affecting their substance. The difficulty of some of the objections raised, and the importance of this case, as well on account of the value of the property, as of the influence of its decisions in affecting the rights of parties under such sales, induced us to order a reargument. After a careful consideration of these objections, we are satisfied that they are not sufficient to show that the proceedings were defective in substance, so as to render a title under them void.
In order to render the sale effectual to confer a valid title, the Probate Court must have acquired jurisdiction of the case by the presentation of a proper petition by the guardian. What shall be the contents of such a petition, is prescribed by section twenty-four of the “ Act to provide for the Appointment and Prescribe the Duties of Guardians,” which is as follows: “To obtain an order for *382such sale, the guardian shall present to the Probate Court of the county in which he was appointed guardian, a petition therefor, setting forth the condition of the estate of his ward, and the facts and circumstances on which the petition is founded tending to show the necessity or expediency of a sale, which petition shall be verified by the oath of the petitioner.”
The necessity or expediency of the sale must arise from one or more of these circumstances: 1st. The existence of debts due from the ward, which cannot be paid out of his personal estate and the income of his real estate. 2d. The insufficiency of the income of the estate of the ward to maintain the ward and his family, or to educate his family, or to educate him when a minor. 3d. That it would be for the benefit of the ward that his real estate, or a part thereof, should be sold, and the proceeds put out on interest, or invested in some productive stock. (Secs. 15, 20, 21.)
In order to enable the Court to judge of this necessity or expediency, the first requisite of the petition is, that it shall set forth the condition of the estate; and it is objected that the petition in this case fails to comply with this requirement, in not stating the value of the several items and parcels of property of which the estate consists. But this is not directly required by the statute, and it would seem to be only necessary to state the condition in such manner as to enable the Court to judge of the existence of one or more of the circumstances above specified, rendering a sale necessary or expedient. In this case the items of which the estate consists, real and personal, are stated, and its situation and condition, so far as to enable the Probate Court to judge whether or not it would be for the benefit of the wards that their interest in the Sotoyome ranch should be sold, and the proceeds thereof put out on interest. It may he observed that the circumstances authorizing an executor or administrator to apply for a sale of real estate, are not the same as in the case of a guardian, and that the petition of the former is expressly required to state the condition and value of the respective portions.
It is objected, that in consequence of the petition stating the interest of the several wards in the Sotoyome Rancho to be two thousand acres each, instead of four thousand acres, the Corn! only *383acquired jurisdiction to order a sale of an undivided two thousand acres; and that hence, as to the other two thousand acres, the title has not passed, and as to such interest, the plaintiffs were entitled to recover. The petition, however, asks for a sale of their whole interest, and the order of sale was of the whole interest, and the sale and order of confirmation was of the whole interest. The question arising, therefore, is whether a mistake in the petition in stating the amount of the wards’ estate is fatal to the jurisdiction, either as not truly setting forth the condition of the estate, or the amount of the property Avhich the ward has, so as to present to the Court the proper data by which it can judge of the portion necessary to be sold. In the case of Stuart v. Allen, (16 Cal. 501) the Court say: “ It Avill be remarked that it is immaterial, so far as this question of jurisdiction is concerned, whether the statements of the petition are true or not; the jurisdiction resting upon the averments of the petition, not upon proof of them.” A purchaser at a sale ordered by the Probate Court must look to the proceedings so far as to see that such a petition was presented as gave jurisdiction of the case to the Court; and if the petition is on its face sufficient for this purpose, he is not required to investigate the truth of the allegations. He is bound to know the law, but he cannot be supposed to have any knoAvledge of the facts on which the petition is predicated; and to require a strict investigation of these facts by each bidder, and to make the title depend on their being ultimately found to be accurate, would greatly embarrass, if not defeat, such proceedings, and would be a manifest injustice to innocent purchasers. The guardian had the right to ask, and did ask, for authority to sell the whole interest, and the Court had jurisdiction to order, and did order, a sale of the Avhole interest. If by reason of this mistake the purchasers obtained an estate or interest in the land double that which they supposed they purchased, and the Avards, on the other hand, received one-half the value of their property, it might have been a sufficient ground for setting aside the sale by a direct proceeding for that purpose; but it does not reach the point of the jurisdiction of the proceeding by the Court, or authorize the sale to be treated as a nullity Avhen questioned collaterally. In fact, by reason of the adult oryners joining in the sale, the whole title to *384each portion of the land was sold, and the purchasers have obtained no greater estate or interest than they bid and paid for; and whether the wards have obtained them proper portion of the purchase money, should not affect the rights of the purchasers. They are npt responsible for the disposition of the money after they have paid it.
It is also objected that the petition does not set forth “ the facts and circumstances on which the petition is founded, tending to show the nécessity or expediency of the sale.” These facts and circumstances, it may be assumed, are those which show the existence of at least one of the three contingencies above specified, in which a sale may be ordered. It must be conceded that this petition does not state in direct terms that there are debts to be paid, or that the income is not sufficient for the support and education of the wards, or that it would be for the benefit of the wards that the property should be sold and the proceeds put out at interest. The petitioner appears to have thought it appropriate to set forth facts showing the existence of all the three contingencies, without in express words averring the existence of either. But no form is prescribed for the petition; and if by a fair application of all the statements, it can be seen that there is an averment that one or more of those three contingencies existed, it was sufficient to give jurisdiction. We think the allegations of the petition present a case for the judgment of the Probate Court, whether the guardian should have leave to sell the interest of the wards in the Sotoyome ranch, on the ground that it would be for their benefit that it should be sold, and the proceeds put out at interest. The guardian also evidently considered it necessary that a sale should take place, in order to realize the necessary means for the support of the wards. For this purpose the petition alleges that the wards - have a slight increase from a portion of them estate (not the Sotoyome ranch) ; that this portion cannot be sold without great sacrifice; that they have no other means of support, save such pittance as she, their guardian and mother, can divide from her private property among all her children, which is small and uncertain; and if the property is sold, the income of the proceeds, after paying debts, will be sufficient for their ordinary support and education. Although not alleged *385directly, it is apparent that the intention is, by these statements, to present the fact that the income of the estate of the wards was not sufficient for their support and education. Without deciding whether these averments are sufficiently explicit to present a case for the jurisdiction of the Probate Court, on the ground of the insufficiency of the income for the support and education of the wards, we are satisfied that the averments, as to the situation of the Sotoyome ranch, present a case for the exercise of that jurisdiction, upon the ground that it would be for the benefit of the wards that them estate in that ranch should be sold, and the proceeds put out at interest. It is stated that the Sotoyome ranch is unproductive; that the greater part of it is occupied by persons who refuse to pay any rent, and are cutting down and destroying the trees; and that it is subjected to heavy taxes, which will amount to more than the value of the land by the time all the infants come of age. These facts certainly tend to show the expediency of a sale of the wards’ estate in this ranch, and the investment of the proceeds at interest. It is not the question whether the Probate Court decided most judiciously in ordering the sale, but whether the facts alleged presented a case for the exercise of its judgment. The Probate Court adjudged that a sale was expedient, and accordingly ordered a sale, as well for the maintenance and education of the wards, as that the proceeds remaining over and above what should be sufficient for such maintenance and education, might be put out and invested. We think the Probate Court had jimisdiction to make that order.
It is further objected, that the real estate of these wards could not be sold by an order of the Probate Court, because its disposition was controlled by the will of Henry D. Fitch, under which they held. The provision of the will is, that the devisees may each “ take out ” one-half of his share when he comes of age, and the other half not until ah the other children come of age. Whatever effect this provision might have in controlling the use of the property until the devisees were entitled to take its control by the terms of the will, the title to the property, the estate of the devisees, undoubtedly vested in the devisees upon the death of the testator. The statute authorizes the sale of the estate of any person under *386guardianship, when necessary or when for his benefit, in certain cases. The language is sufficiently comprehensive to authorize the sale of this estate; and if legally made, to transfer whatever estate these wards had to the purchasers. The plaintiffs have no title left on which they can maintain this action.
The circumstance that it was not necessary to probate this will, the testator having died before the adoption of the common law, cannot affect the liability of the property of these wards to be sold under the order of the Probate Court. The fact that they were infants residing in this State, and had estates to be taken care of, authorized the appointment of a guardian, and subjected them and their property to the control of the Probate Court.
It is further objected, that the real object of this sale was to effect a partition between these infants and then adult codevisees; and that as the Probate Court has no jurisdiction of such a proceeding, this sale was void. There is no doubt that all the matters appearing in these proceedings relating to the interests of the adults, are foreign to the only object which could be rightfully effected, and their presence has prevented the direct and simple statement in the petition of the facts necessary to give the Court jurisdiction of the proceeding, and has occasioned some directions to be inserted in the order of sale which are inappropriate. But we do not think they defeat the effect of the other allegations, which, in the view we have taken of them, are sufficient to give the Court jurisdiction of the proceeding for the purpose of selling the estate of the minors. The Court had power to order a sale of the estate of the infants, when the facts rendering it necessary or expedient were brought before it by the petition of the guardian. Such facts were so brought before it, and it only ordered their estate to be sold. The fact that the adults joined in the sale wrought no detriment to the infants, and may have benefitted them. That a partition may have incidentally resulted, cannot render the sale void, if in other respects it was legal. The same facts existed in the case of Reid v. Allen, (18 Texas, 242) but were not urged or considered as an objection to the validity of the sale.
It is objected that the provision in the order of sale authorizing the adult owners to bid off any of the lan'd to be sold, to the amount *387that would be coming to them, was a disposition of the land in the nature of an exchange, and not a sale, which must be for cash; and hence the sale is void. But if only the interest of the minors was sold, there would be nothing coming to the adults, and this provision would he a nullity and harmless; or if, as was probably contemplated, the adults joined the sale, them bidding, without paying cash, to the amount of them interest, still left the whole of the minors’ interest to be bid and paid for in cash. The result is that the sale of the minors’ interest was a cash sale.
There are some other objections which have been alluded to in the briefs, hut which only touch the regularity of the proceedings after jurisdiction had been acquired; which, therefore, were only the subjects for correction on an appeal, and cannot be considered when arising collaterally in this action. (Sibley v. Waffle, 16 N. Y. 190-1.)
Judgment affirmed.