Cook v. Wright

Kellogg, J.:

The question submitted is whether plaintiff can complete his contract by conveying a good title to the premises sold the defendant. John V. Sheppey was the general guardian of his three infant daughters, and from their personal estate in his hands as such guardian he purchased the real estate in question. The premises were conveyed to him as such guardian, and to his successors and assigns, the habendum clause in the deed reciting that the premises are to be held by him as such guardian, his successor and assigns.

The buildings upon the premises having been destroyed by fire, the infants and their general guardian applied to the Supreme Court for permission to sell the premises, and proceedings were had in the manner provided for the sale of infants’ real estate in all respects except that the order appointing the general guardian for the purpose of the proceeding dispensed with the execution of a bond, reciting that the general guardian was already under sufficient bonds, and the order confirming the sale, after providing for the payment of the expenses, required that the remainder of the proceeds should remain in the hands of the general guardian. The proceedings disclosed the manner in which the real estate had been acquired. The plaintiff, the purchaser on that sale, received a deed executed by the special guardian, and later a conveyance from Sheppey personally and as general guardian, in which his wife joined. The question to be determined is whether the failure to give the bond renders the proceedings invalid, and whether the plaintiff is in a position to transfer a marketable title and thus perform his contract of sale with the defendant. We think that the infants, by the deed to the general guardian, acquired no legal title or interest in the premises, but as between them and the general guardian the premises still remained personal *66 property in the hands" of the guardian to be administered by him, and that, therefore, the failure to give the bond does not render the plaintiff’s title defective. (Lockman v. Reilly, 95 N. Y. 64, 71 ; Haberman v. Baker, 128 id. 253, 261; Storm v. McGrover, 189 id. 569.)

The plaintiff being able to convey a marketable title to the defendant, under the stipulation the plaintiff is entitled to judgment for a specific performance of the contract according to the terms thereof, with costs.

All concurred; Howard, J., not sitting.

Judgment directed for the plaintiff for specific performance of the contract according to its terms, with costs.