It was conceded upon the argument that, by the law as settled in this state, the sale of the land, under the order of the surrogate, was void as to the plaintiffs unless a guardian was actually appointed for the infants Adula and Clinton. (Bloom and others v. Burdick, 1 Hill, 130. Schneider v. McFarland, 2 Comst. 459.) It was claimed, however, by the defendant’s counsel, that the onus, as to the appointment of guardians, was upon the plaintiffs, and he relied upon the act of 1850 as producing this result. Prior to that act the onus would have been upon the defendant, who claimed a title through the proceedings before the surrogate, and the sale. The act referred to is entitled An act for the protection of purchasers of real estate upon sales by order of surrogates.” (Sess. Laws of 1850, ch. 82.) By the first section of this act it is declared, that “Every sale heretofore made, or hereafter to be made, under any of the provisions of the fourth title of chapter six, of the second part of the revised statutes, and of the acts amending the same, or in addition thereto, shall he deemed and held to be valid and effectual as if made by order of a court having original general jurisdiction, and the title of any purchaser at any such, sale, made in good faith, shall not be impeached or invalidated by reason of any omission, error, default or irregularity in the proceedings before the surrogate, or by any allegation of want of jurisdiction on the part of such surrogate, except for the manner and for the causes that the same could be impeached or invalidated in case such sale had been made pursuant to the order of a court of original general jurisdiction.”
If this act is applicable to the case, and is not unconstitutional, it is not denied that it embraces the present case. The *133counsel for the plaintiffs insisted that the act is by its terms restricted to sales made under the provisions of the revised statutes ; and that as the sale in this case was prior (in 1829) to the enactment of the revised statute, and under the revised laws of 1813, the statute does not apply. Secondly, that if it should be held that the statute applies, then it changes vested rights, and is unconstitutional; that it cannot have any retrospective operation.
. In my opinion, neither of these positions is sound. Although the case may not be within the letter of the act, I think it is within its spirit. By the revised laws the surrogate was directed “to appoint some discreet and substantial freeholder a guardian for such infant or infants, for the sole purpose of appearing for and taking care of the interest of such infant in the proceedings.” (1 R. Laws, 454, § 31.) The provision in the revised statutes is substantially the same. (2 R. S. 100, § 3.) The revised laws were continued, substantially, in the revised statutes relating to the sale of the real estate of deceased persons for the payment of their debts. The proceedings under the revised laws were substantially the same as under the revised statutes ; and in my opinion the legislature, by the act of 1850, intended to include all sales theretofore made. The act is remedial, and should be liberally construed. By the law, as settled in this state, it was incumbent upon the party claiming title, under a sale ordered by the surrogate, to show that the surrogate had jurisdiction of the subject matter and of the persons whose interests were to be affected. Thus it would be necessary for him to show, affirmatively, that a guardian was appointed for the infant heir. If the proceedings were “ in a court having original general jurisdiction,” it would be presumed that all the jurisdictional steps were taken, and that the proceedings were regular and proper, and the onus of showing the contrary was upon the party who sought to impeach the title acquired under the order for the sale. The act of 1850 is .entitled “ An act for the protection of purchasers of real estate upon sales by. orders of surrogates;” “every sale heretofore made, or hereafter to be made, under any of the provisions of *134the fourth title of chapter six of the second part of the revised statutes,” &c. Now these provisions are the same, substantially, as the provisions of the revised laws, under which the sale in this case was actually made, and I think the statute of 1850 should be construed as including all previous sales made pursuant to the provisions of the original act, and which provisions are contained in the revision of such act. The leading rule in the construction of statutes is to ascertain the intention of the legislature enacting the statute, and the intention being ascertained, the law is known, and the will of the legislature must be carried into effect. Again, it is a rule of construction that a thing within the intention of the statute is as much within the statute as if it were within the letter of the statute. (The People v. The Utica Ins. Co. 15 John. 358. Jackson v. Collins, 3 Cowen, 89.) In Schneider v. McFarland, (2 Comst. 459,) the proceedings were in a surrogate’s court, and it did not appear that any guardian was appointed for the infants. The proceedings were under the revised laws of 1813. The case was decided in October, 1849, and the legislature, at its next session, passed the act of 1850. I have no doubt the legislature intended to include all sales theretofore made. The result is, that the onus probandi was upon the plaintiffs, to show that no guardian was appointed. It was claimed by the defendant’s counsel, that some evidence was given tending to show that a guardian was appointed, which should have been submitted to the jury. It is not necessary to pass upon this question now, as there must be a new trial. The plaintiffs also claimed that there were • other defects in the proceedings, or rather that there was no evidence to prove certain facts which were necessary to show the jurisdiction of the surrogate and sustain the proceedings. I think they are wrong in point of fact as to some of the defects pointed out. But if I am right in the construction given to the statute of 1850, it will include all the errors or defects referred to by the counsel, so far as to call upon the plaintiff to show affirmatively that the acts alleged to have been committed were in fact omitted.
In my opinion the act of 1850 is not unconstitutional as ap*135plied to cases of sale made before the passage of the act. It has not attempted to. and does not, impair or change any vested right. If in fact no guardian was appointed, the plaintiffs will recover the land. The statute has changed in certain cases and under certain circumstances, a rule of evidence which had been applied to surrogates’ courts; and it has made the rule in this court the same as it has always existed in courts of original general jurisdiction. I think it was competent for the legislature to do this in reference to proceedings previously had in surrogates’ courts. (See 7 Barb. 429.)
[Erie General Term, January 12, 1867.There must be a new trial; costs to abide the event.
Mullett, Greene and Marvin, Justices.]