John R. Hegeman, Appellant, v. Stearns Realty Company, Respondent

John R. Hegeman, Appellant, v. Stearns Realty Company, Respondent. Second Department, March 8, 1907. Infant — proceeding ,to sell real property -r- order of reference essential — vendor and purchaser — unmarketable title. A proceeding to sell an infant’s real property being in derogation of the common law must strictly comply with the statute. If in such 'proceeding there was no order of-reference, the proceeding is absolutely void. Although the record of such proceeding shows the-confirmation of the report of a refere^, the proceeding is invalid where the attorney who conducted it ‘testifies that although he prepared an order of reference, it was never signed by a-judge.. A title acquired upon such sale is not marketable. Hirschbekg, P. J., and Hooker, J., dissented. Appeal by the plaintiff, John R. Hegeman, from, a judgment of the Supreme Court in favor of the defendant, entered in the. office of the clerk of the county of Westchester on the 2d day of August, 1906, upon the decision of 'the court, rendered after a trial at' the Westchester Special Term, dismissing the complaint upon the merits. G. H. JBov'ee [Frederielc. O. Lawyer with him on the brief], for the appellant. . . Harold Swain [Hórma/n Wilmer Gha/ndler with him on- the brief], for the respondent. [MAJORITY — Miller, J.:] Miller, J.: The action'is brought to recover money paid on account of- the .purchase price of real property contracted to ,be conveyed to the plaintiff’s assignor. It is based on an alleged defective title. The defendant’s title depends upon the validity of proceedings to sell an. infant’s real property pursuant to section 2348 et seq. of the Code - of Civil Procedure. The defect alleged is the absence of the order of reférence required by section 2354. The papers in said proceed- - ing on file in the county clerk’s office are the petition of the guardian of the infant, who was under the age of fourteen, the consent and order appointing the .special guardian, the • undertaking of said guardian, the report of a referee, the order of; the Supreme Court confirming the report and directing a conveyance, an agreement to convey, an order of the court confirming said agreement and directing a conveyance, the report of the special guardian and the order confirming it. The petition alleged that a sale was necessary in order to save a sale of the property to satisfy liens and that the infant’s interest was worth only $100, and that was the amount realized. The final order in the proceeding was granted October 13, 1902. The deed was delivered by the special guardian on the 9th day of October, 1902, and on the same day the grantee borrowed $3,000, in addition to the incumbrances then on the property, from the mortgagee who was claimed to have been threatening foreclosure. The report of the referee and the order confirming it recite the appointment of the referee. " The deputy county clerk testified that there was no order of reference in the clerk’s office and no record of the entry of such order. The attorney for the petitioner in said proceeding testified : “ I prepared a paper which would have been an order of reference had it been entered, and- gave it to Mr. Lockwood (the latter was the referee); * * * I never saw that paper signed by a judge of the Supreme Court.” We need spend no time on the proposition that a proceeding in derogation of the common law to sell an infant’s real property depends for its validity on a strict compliance with the terms of the statute authorizing it. If there was no order of reference the proceeding was absolutely void and the proof on that point is the only question now involved. The respondent urges that the recitals in the order confirming the report of the referee furnished presumptive evidence in proof of the order. I do not think we need to determine now to what extent such presumption could he indulged or whether the burden was upon the defendant to show compliance with the statute, because it seems to me that whatever probative force the recitals may be entitled to is overcome by the testimony, of the attorney who had charge of the matter; and the only fair inference from his testimony is that he never made application to the court for the order of reference, He tells what he did; that was to prepare a paper and hand- it to the alleged referee. It would not have been proper for him to have suggested to the court the referee to be appointed, much less could he prepare a proposed order and leave it to the referee named therein to have himself appointed. The referee evidently assumed that the paper handed him was in fact an order granted by the court, and that accounts for the fact that" no such order is found in the papers on file. I think this view makes -further consideration of the case unnecessary, and requires the conclusion that the purchaser was not bound to accept the title offered. ' . The judgment should be reversed. . Woodward and Jenks, JJ., concurred; Hirsohberg, P. J., and Hooker, J., dissented. - Judgment reversed and new trial granted, costs to abide the event. ...