Ebling v. Dreyer

Vann, J.

This appeal presents a question of power on the part of the legislature to pass the statute in question (L. 1872, ch. 479), and of regularity on.the part of .the Supreme Court in its proceedings under the statute.

The power of the legislature by special act to authorize a sale .of infants’ lands, including the future contingent interests of those not in being, is well established in this state. In the case of Clarke v. Van Surlay ( 15 Wend. 436 ) it was held by the Supreme Court that where the rents and profits of land are given to a father during his life, with remainder in fee to his lawful issue, and it is necessary for the support and maintenance of the father and his family, and the education of his children, that the land should be sold, a private act of the legislature, authorizing a sale for such purposes, as well as for the payment of debts necessarily incurred by the father for those purposes, is not unconstitutional, although its operation is limited to a particular property and does not extend to all cases of like character. Judge Bronson, in delivering the opinion of the court, quoted a passage from Blackstone’s Commentaries in regard to the power of Parliament by a particular law to unfetter an estate, by assuring it to a purchaser against the remote or latent claims of infants, and settling a proper equivalent in proportion to the interest so barred. (2 Black. Com. 344, 5.) The learned judge, however, said that acts of this description do riot depend for validity on the omnipotent power of Parliament, for, while the legislature ought not to interfere upon light considerations, there was no constitutional impediment in the way of enacting private laws *467 affecting individual interests, where proper care is taken to preserve the substantial rights of the parties. When the case reached the Court of Errors under the name of Cochran v. Van Surlay ( 20 Wend. 365 ), it was affirmed, and the act held to conflict with neither the State nor Federal Constitution. The power of the legislature was upheld upon the ground that &s parens patrias, it had the right to interfere in particular cases for the benefit of incompetent persons, and that a change from unproductive real estate into productive personal property, the income of the latter to be applied in the same way as the income from the former, was a proper case for the exercise of the power.

In Brevoort v. Grace ( 53 N. Y. 245 ) this court sustained the right by special act to “ authorize the sale of the lands of those not capable of acting for themselves, and also the contingent rights of those not in esse ” at the time, but held that the power did not extend to the sale of lands in which adults, competent to act for themselves, have an interest, without their consent. There are other cases bearing upon the subject, from which the following are cited :

Leggett v. Hunter ( 19 N. Y. 445 );

In re Field ( 131 N. Y. 184 );

Kent v. Church of St. Michael ( 136 N. Y. 10 ).

While the power is not unlimited, but is subject to judicial review, where the parties in interest are incapable of acting for themselves, and the legislation is for their benefit, not only in theory but in fact, it should be sustained both upon principle and authority. That a sale of the lands in question was necessary to protect all persons interested, in being or not, is hardly open to discussion, for the income was nothing, the outgo large, the life tenants had limited and the remainder-men no means, while the taxes and assessments and sales for the same were rapidly sweeping the property out of existence. The legislature came to the rescue, and but for its timely action nothing could have been saved for any one.

It is insisted, however, that even if the legislature had power to pass an act upon the subject, it had no power to pass the act in question, because, it is argued, it permits the court *468 to deal with the separate properties of different infants as a single parcel, and provides for an unlawful distribution of the proceeds. In considering these objections regard must be paid to the fact that the situation of the parties had become so changed between the date of the testator’s death and the time when the act was passed, as to make any course other than the one pursued impracticable as Well as unjust. The property when devised by the testator consisted of a single tract of land, without streets or any visible lines of division. He divided it into four equal parts by imaginary lines running the longer way. Subsequently, under lawful authority, streets were laid out through it, in such a manner as to leave three of the parcels without any frontage, except upon cross streéts, while the parcel remaining was cut into two long, narrow strips by a street running lengthwise, so that although there was a frontage on both sides there was so little depth as to make the lots of slight value. It is obvious that, under these circumstances, parcels could not he separately sold except at a disadvantage, while if sold together the highest price possible could be realized. The property came through one will, although by separate devises, and all of the devisees were nearly related. Situated as the property was, it would'have been impossible to observe the lines of individual ownership in making a sale without a serious sacrifice of value. A separate sale of the four parcels would have been an injury to the remaindermen. As the legislature had the power to„authorize a sale for the benefit of the infants, it necessarily had the right to so order the sale as, in its reasonable judgment, to confer the greatest benefit upon them. It was practicable after the sale, first deducting the expense thereof, to separate the remainder of the proceeds of the several parcels in proportion to their respective values and thus to preserve every right that each of the several interests was entitled to. It simply involved the determination of what each separate par.cel, situated as it was before the sale, was worth when compared with the value of the entire tract, and the four fractions resulting would represent the proportion of each of *469 the four interests in the proceeds of the sale. After tiras separating the money into four separate parts, each representing the value of the four different interests in the land, and deducting from each the charges against it for taxes, liens, incumbrances, and the value of the life estate pertaining to it, the result would be equal and exact justice between all. As it was the duty of the life tenants to pay the annual taxes, that fact would have to be taken into account in fixing the value of their life estates if they elected to take a gross sum, or if they did not, the amount of those taxes unpaid would have to be deducted from the annual income going to them respectively.

The statute, as we read it, does not authorize an unlawful distribution of the proceeds of the sale. The theory of the act is to convert the land into money, so as to save it from total loss, and after payment of the money into court and deducting the expenses of the sale, including the expenditures necessary to give a good title to the purchaser, to treat the remainder as land, and divide it according to the directions of the will. While this is not all required in so many words, it logically and necessarily follows from what is required. The main provisions of the statute are addressed to the method of turning the land into money, and, as a necessary incident to this end, it authorizes the use of so much of the proceeds as would free the land from liens. This was to be done “ under the direction of the court,” and, although temporarily the deduction might be made in bulk for convenience, it cannot be assumed that the court in its final disposition of the matter would permit any interest in the property to bear a burden that legally rested upon another. Even if the first order was silent upon the subject, as the court retained control of the proceeding, it is to be presumed that by its final direction all equities between the different parties will be adjusted upon the proper basis. Whatever a statute requires to be done under the direction of the court, it requires to be done according to law. In this case there was nothing in the statute to prevent a lawful division, for if the court did its duty each interest would bear its proper burden and receive its proper benefit.

*470 It was not essential to the validity of the act that the precise method of distribution, with every detail of administration, should be set forth, for all that could properly be left to the wisdom of the court under the implied direction to administer the fund according to law. That established the principle upon which distribution was to be made, and all the details could be worked out by the court. Thus, it is provided that after title is assured to the purchaser by discharge of liens and conveyance of the land, the remainder of the money should be paid to a designated depository to be invested in bonds and mortgages, and that “ the same, as well as the interest and income thereof, shall abide the order of said court.” It also permits, but whether this was done or not does not appear, the life tenants to “ consent to receive a sum in gross in lieu of their several life interests,” when ascertained according to the Revised Statutes. Thus the procedure, when there is a statute to guide, must be in accordance with that statute, but when there is no statute, as the express command is that the fund shall abide the order of the court, it follows by necessary implication that it is to be according to the common law and the established practice in such matters. When a statute authorizes a sale of property and the payment of the net proceeds into court to abide its order, it necessarily means that they are to be paid out only to those entitled and as they are entitled. No other construction is possible, except upon the assumption that the Supreme Court would fail to do its duty. The possession of the fund, under authority of the statute, carries with it the power to take such evidence, try such issues and determine such questions as are necessary in order to dispose of the money, thus substituted for the land, so as to carry out the wishes of the testator. It may be that the court has in fact made a mistake by distributing a part of the fund contrary to law, but that is not material to the purchaser, provided it could have made a correct apportionment. Moreover, if any error has been committed in the proceedings since the sale, it can still be corrected, for a part of the money is yet in court and subject to its order.

*471 We think that the legislature had power to pass the act, that the sale under the act was valid and vested a good title in the purchaser, and that the title tendered by plaintiff to defendant was free from reasonable doubt.

It is further insisted, however, that, even if the title is good in fact, specific performance should not be compelled, because the questions raised remain open, inasmuch as the grandchildren of the testator, born since the sale under the statute, are not parties to the action and are not bound by our determination. There would be much force in this position if the alleged defects in the title depended upon questions of fact or upon doubtful questions of law, but as they rest wholly on the construction of a statute and a decree made thereunder, we do not think we should hesitate, under all the circumstances, in declaring the title free from judicial doubt, and requiring the defendant to perform his contract. When the court has carefully examined and deliberately decided a question, its decision becomes a part of the common law, and is binding upon it as well as upon all the other courts of the state. The possibility that it may, at some time in the future, when other parties are before it, disregard its own precedent and decide the sanie question, depending on the same facts, in a different way,.is so remote that it should not be permitted to arrest the development and destroy the salability of a large tract of land, possibly for a generation.

The judgment of the General Term should be reversed and judgment rendered in favor of the' plaintiff in accordance with his demand, with costs, the form thereof to be settled before the judge who prepared the opinion of the court.

All concur, except Gray, J., dissenting.

Judgment accordingly.