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EXECUTOR AND ADMINISTRATOR-LIMITATION -SALE OF DECEDENT'S LAND TO PAY DEBTS.

SUPREME COURT OF MISSOURI.

GUNBY V. BROWN.

Where no statute limits the time within which the land of a decedent may be sold to pay debts, it must be done within a reasonable time.

In the absence of facts excusing it, a delay of twelve or thirteen years is unreasonable.

Injunction is a proper and the best remedy to prevent a sale in such case.

BECK, J. A temporary injunction was awarded in this case restraining the defendant, public administrator of Caldwell county, from selling the land in question for the payment of a debt of the estate of Samuel Rogers, deceased. On final hearing the injunction was dissolved.

Rogers owned the half section of land now in question. He joined the Confederate army in 1861, and died in Arkansas, 23d of December, 1862. His death was not known in Caldwell county, the place of his residence, until after the sheriff's sales next mentioued.

A judgment was rendered in the County Court of that county in May, 1863, against Rogers and others, on a bond indebtedness to the school fund. Executions were issued thereon, and the north half of the land sold to Woolsey and Gideon, in October, 1863.

A judgment was also rendered in the Circuit Court against Rogers in 1862, before his death. Execution was issued thereon 21st of January, 1863, after his death, by virtue of which the sheriff sold the south half of the land to Woolsey and Gideon, in October, 1863.

In and prior to 1866 Murphy acquired conveyances from and through these purchasers to the entire land, and in that year the widow of Rogers also conveyed her interest in all of the land to him. These deeds were all duly recorded about their respective dates.

The heirs of Rogers instituted a suit for the possession of the land in the Circuit Court in 1875 against Murphy, which resulted in a decision, rendered in 1876, divesting the heirs of all interest in the lands, with a general judgment against Murphy in their favor for $800.

In May, 1875, Murphy made a deed of trust upon the land securing a large debt; by virtue of this deed of trust the land was sold in 1877 to the plaintiff. He has sold part of the land with covenants, to protect which and the residue of the property he prosecutes this suit and this appeal.

In 1867, after both of the sheriff's sales, and after Murphy took possession of the laud, claiming in good faith to be the owner thereof. Henkins was appointed administrator of Rogers. Nothing appears to have been done by him. In 1880 the defendant, public administrator, procured an order to sell the land to pay a debt allowed in 1865 in favor of Woodson and others, amounting to something less than $200.

The sheriff's deed, made by virtue of the County Court judgment, recites a sale at a term of the County Court, and the Circuit Court does not appear to have been then in session, as the sale was not made during a term of the Circuit Court, it is for that reason conceded to be void, and so it has been ruled. McClurg v. Dollarhide, 51 Mo. 347. The execution on the other judgment was issued and sale made after the death of Rogers. Generally such a sale is void. Wernecke v. Wood, 58 Mo. 352; Brown v. Woody, 64 id. 547, and authorities there cited. Whether this deed could be upheld on the doctrine of Lewis v. Coombs, 60 Mo. 44,

we need not stop to consider, and the view we take of this case it is not necessary to further consider this question, for it at most only affects one-half of the land. Though these deeds were void, one on its face, still they constitute color of title. Jackson v. Magruder, 51 Mo. 55; Hamilton v. Boggess, 63 id. 233. Moreover they not only defined the limits of his possession, but gave character to and notice of his claims. But assuming without deciding that because Murphy perfected his title by a deed from the widow, and the decree of title from the heirs, he is to be regarded as holding the title through theirs, and subservient to a proper administration of the estate, the question arises whether there is any limited time within which lands are to be sold for the payment of debts by an administrator, and if so, what is the limit.

There is no statute which prescribes the time within which the administrator must procure an order for the sale of real estate to pay debts of the estate; nor is there any analogy between an ordinary judgment and an allowance by the Probate Court of these demands, as to the time within which they may be enforced; nor can the statute of limitations, with respect to personal actions, have any application. A proceeding to sell real estate is but a step to be taken in the course of the proper administration of the estate. The chancellor, in Mooers v. White, 6 Johns. Ch. 374, said: "But I am not prepared to admit that the executor or administrator can at any time, and in his discretion, apply for and be entitled to an order for the sale of real estate, and I am of opinion that whatever may be the merit of the present demand, the defendant, as executor, is now too late to apply for a sale of the real estate; and that his capacity for that purpose is entirely extinguished." Then referring to the statute, he proceeds: "I infer from them that the law intended that the executor or administrator should make his application with due diligence and in a reasonable time, and if he does not, the judge or surrogate has, from the nature of his judicial trust, a discretion to reject the application. What is a reasonable time is another question."

This doctrine has been met with approval in many of the States where there is no statute of limitations applicable to such proceedings. Estate of Crosby, 55 Cal. 574; Estate of Godfrey, 4 Mich. 308; Wolf v. Ogden, 66 Ill. 224; McCrary v. Tasker, 41 Iowa, 255.

By our law the debts must be exhibited for allowance within two years from the grant of letters of administration. If the personal estate be insufficient to pay the debts, the administrator may disclose that fact by petition and have an order for the sale of real estate. If he fail to make such application, any creditor may do so upon giving the creditor the prescribed notice. In short, the whole administration law contemplates that the affairs of the estate will be wound up as speedily as practicable. If the administrator is guilty of delay the creditors are armed with ample power to have him removed, or proceed themselves.

In reason and justice there must be a limit of time in which this order of sale may be taken. As there is no other statute upon this subject, it must be done within a reasonable time. What that is must in this case, as in all cases where the sale is applied for, be determined from all the circumstances. Each particular case must, to a great extent, furnish its own rule. It may be said it was the duty of Murphy, through whom the plaintiff claims, to see that the administration was closed at an earlier day. It is a circumstance worthy of consideration that he, all the while, claimed by a title, which if good was paramount and superior to the demands here in question. It must be that administrator and creditor alike supposed his title was superior. But if he is in no better position than the heirs

and purchasers from them, the language used in the Estate of Crosby, supra, is quite pertinent, which is: "Nor does the fact that the heirs do not call for an accounting in the Probate Court, and for sale of real estate, if necessary, constitute any excuse for the delay of the administrator or creditor. The proceeding for the sale of real property is hostile to the heirs, and there is no principle which makes it their duty to initiate a suit adversely to themselves, the failure to commence which by the proper party may result to their benefit."

Here the administrator was appointed in 1867. The debt was allowed in 1869. It would seem there was no personal property to be administered upon, and nothing to call for any delay. In 1874 an order was made, upon the report of Henkins showing no assets, that the administration be "discontinued until such time as the court may order the same to be proceeded with."

In 1877, ten years after grant of letters, this order is set aside. Henkins was relieved and the estate ordered into the custody of the public administrator, which order was also revoked in that year. In 1880 the estate was ordered into the hands of the defendant on motion of Woodson, the then owner of the demand, whereupon the order of sale in question was procured. Why this delay of twelve or thirteen years, when there appears to have been but a single demand, and no personal property to administer upon? The record fails to give any satisfactory answer. The delay is inexcusable.

The sale, if made, cannot be said to be void on its face. A deed made pursuant thereto will cloud and depreciate the plaintiff's title. The power of a court of equity to prevent this cannot be disputed. The contention is however that this resistance should have been made to the order of sale in the Probate Court, and that it caunot be made elsewhere.

It does not appear that the plaintiff had actual notice that such an order had been applied for. The notice is by publication. But if he was bound to take notice of such proceeding at this late day, and could have appeared and resisted the order in the Probate Court, we think he may still have the remedy by injunction in the Circuit Court. His claim for relief ad. dresses itself to a court of equity. The Circuit Court is the most appropriate tribunal to hear and determine such questions. The pleadings and procedure in the Probate Court are not so well adapted to a full investigation of such equities. The Circuit Court has the power to grant full relief, and under all the circumstances of this case the plaintiff might well appeal to that court for relief.

The judgment, including that assessing damages on the boud, is reversed and the cause remanded, with instructions to the Circuit Court to make the temporary injunction perpetual.

Norton, J., dissents, and the other judges concur.

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ABEAS CORPUS. The relator is the father of John Cunningham, aged sixteen years, and of Eddie Cunningham, aged thirteen years, who were arraigned upon a complaint for burglary before a justice of the peace, June 10, 1884, and pleaded not guilty. After an examination, the justice ordered them to recognize in the sum of $100 each, with sureties, for their appearance at the October term of this court, but immediately thereafter, upon the application of the State's counsel, under chapter 287, section 14, and without the consent of said minors or their friends, the justice revoked the order to recognize, refused to take bail, and sentenced John to the industrial school for two years, and Eddie for three years, and issued a mittimus for their commitment, which was executed June 12.

At this time, Ray, as superintendent of the industrial school, having produced them before the court on a writ of habeas corpus issued upon the relator's petition, a hearing was had and they were discharged on the ground that the justice had no jurisdiction to impose the sentence aforesaid, and the defendant excepted.

Haskins & Stoddard, for relator.

Lane & Dole, for respondent.

SMITH, J. "When any minor under the age of seventeen years charged with offense punishable by imprisonment, otherwise than for life, shall be convicted and sentenced accordingly, or shall be ordered to recognize for his appearance at the Supreme Court, the court or justice, upon application of such minor, his friends or the State's counsel, may order that instead of such imprisonment or recognizance the said minor may be sent and kept employed and instructed at the reform school for such term, not less than one year nor extending beyond the age of twenty-one years, as said court shall judge most for his time, interest, and benefit, provided he shall couduct himself according to the regulations of said school; and a copy of such order shall be sufficient authority for his commitment and detention at such school." Gen. Laws, ch. 287, § 14. By Laws 1881, ch. 37, the name of the institution was changed to the industrial school. Under the authority of this statute, the relator's minor sons, one of the age of thirteen and the other of the age of sixteen years, have been sent to the industrial school for the terms of three and two years respectively, neither having been convicted of any crime or offense. They were brought before a justice of the peace upon a complaint charging them with having committed the crime of burglary-a crime of the gravest character and punishable with imprisonment in the State prison for a long term of years. The crime was one which the magistrate had not jurisdiction to determine, but only to inquire if just cause appeared to hold the accused to answer at the Supreme Court. They were heard upon no other charge than that set out in the complaint, and were not in law required to defend against any other. An order was made requiring them to recognize for their appearance before the Supreme Court. So far the justice had jurisdiction.

At this stage of the proceedings the counsel for the State moved for an order that the accused be sent to the industrial school, and the justice, declining the offer of the accused to recognize agreeably to the order then just made by him, issued an order committing them to the school for the terms above mentioned. The commitment was not for the purpose of securing their appearance at the Supreme Court, for the shortest term for which they might be sent to the school would extend much beyond the next term of the Supreme Court. If they were committed as a punishment for having committed the crime of burglary,

fit;" but the statute does not confer upon the court or justice the power to send a minor to the school solely for the reason that the court or justice may be of opinion that it may be for the interest or benefit of the minor to be sent there. The original name of the school, "house of reformation for juvenile and female offenders against the laws," Laws 1855, ch. 1660, indicated the character of the institution. The act provided that any boy under the age of eighteen years, or any female of any age, "convicted of any offense known to the laws of this State and punishable by imprisonment other than such as may be punished by imprisonment for life," might be sentenced to the house of reformation. Id., § 4. At no period in its history could a person become an inmate of the institution unless, being within the prescribed age, he or she had been convicted of a crime or offense. The only exception is the unconstitutional provision inserted in the revision of 1867-Gen. Stat., ch. 269, § 14; Gen. Laws, ch. 287, § 14-authorizing a justice to send to the school a minor less than seventeen years of age when he shall have ordered to recognize for his ap

they have never been tried or convicted of that crime by the judgment of their peers. Article 15 of the Bill of Rights provides that "no subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities or privileges, put out of the protection of the law, exiled or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land." This clause in our Constitution is a translation from magna charta, and dates from 1215. Its meaning has become fixed and well determined "and asserts the right of every citizen to be secure from all arrests not warranted by law." Mayo v. Wilson, 1 N. H. 53, 57. It guarantees the right of trial by jury in all cases where the right existed at common law in this State at the adoption of the Constitution. That a person charged with having committed the crime of burglary is entitled to a jury trial has never been questioned. As the justice only had jurisdiction to inquire and not to convict, the accused have had no trial. Provision is, and ever since the adoption of the Constitution has been made by statute for a trial by jury of every crime indictable by a grand jury, and of every offense where an appeal is taken from the judg-pearance at the Supreme Court. We cannot ignore ment of a justice or police court. Final judgment cannot be enforced for the commission of any police offense, however trivial, until the appellant has been convicted by a jury of his peers. If the relator's sons were sent to the industrial school for some other crime or offense, it was one of which they have never been convicted, and in relation to article 15 of the Bill of Rights, which provides that "no subject shall be held to answer for any crime or offense until the same is fully and plainly, substantially and formally described to him, or be compelled to accuse or furnish evidence against himself. And every subject shall have a right to produce all proofs that may be favorable to himself, to meet the witnesses against him face to face, and to be fully heard in his defense by himself and counsel."

But the commitment and detention of the relator's sons is justified by the respondent upon the ground that the industrial school is not a prison, that the order of the commitment was not a sentence, and that their detention is not a punishment. The contention is that the industrial school is part of the school system of the State, and that the State as parens patrice may detain in the school such scholars as may need its discipline. If it is a privilege to be admitted a member of the school, it is a privilege limited to "offenders against the laws." At no time since its institution in 1855, have its doors been open to the admission of any other class of scholars. Its advantages have not been offered to every minor under the age of seventeen years who might desire to enter, or whose parents or guardian might seek to place him there. The relator's sons were sent to the school, either because they had committed some crime or offense, or because the justice judged it to be for their "interest or benefit" to be placed there. For whichever of these causes they were committed, the commitment was illegal. As already remarked, they have never been convicted of the crime of burglary; and they have not been tried nor had any opportunity to defend against any other charge. If the order for their commitment was made because the justice judged it to be for their "interest and benefit," the answer is that he has no authority by statute to commit them for that cause. Whenever a court or a justice may send a minor to the school he may fix the term during which he may be kept at the school at not less than one year nor extending beyond the age of twenty-one years, as the court or justice "shall judge most for his true interest and benefit." The limit of his stay or confinement in the school is determined by the consideration of what shall be "most for his true interest and bene

the fact that in the public estimation the school has always been regarded as a quasi penal institution, and the detention of its inmates or scholars as involuntary and constrained. The great purpose of the institution was, the separation of youthful offenders from hardened criminals of mature years, in the hope of their ultimate reformation and of their becoming useful citizens. But the fact cannot be overlooked that the detention of the inmates is regarded to some extent in the nature of a punishment, with more or less of disgrace attached on that account. If the order committing a minor to the school is not a sentence but the substitute for a sentence, as claimed by the respondent, what is a substitute for a sentence but a sentence in and of itself? It is worthy of remark that the Legislature has not undertaken to authorize the commitment of a minor to the industrial school upon the mere presentment of the grand jury.

In this case the relator, the natural guardian of his sons, has been deprived of their care, nurture, education and custody against his consent, and without any trial or hearing to which he was a party, upon the ground, and only ground, that the justice found there was just cause to require them to appear at the Supreme Court to answer further. If he is not a suitable person to have the care and education of his children, that fact has not been found, nor does it appear that their education has been neglected. But how far he is entitled to be heard upon that question we do not decide. We have only alluded to the matter as showing what consequences may flow from the unlawful commitment of a minor to this school. Where the commitment is lawful, the loss by the parent of his custody of his child follows as one of the incidents for which there is no remedy, and perhaps in many instances, because of his unfitness, there ought to be

none.

It is further deserving of consideration, that the relator's sons, if indicted for the crime of which they were charged before the justice, cannot plead autrefois convict, although they may remain at the school the full term for which they were sentenced; and if their detention at the school is a punishment, they are liable to be punished twice for the same offense, in violation of the fundamental maxim, "Nemo debet bis puniri," etc. Broom Leg. Max. 348.

In coming to this conclusion we have not overlooked the decisions in other States. Milwaukee Industrial School v. Supervisors Milwaukee County, 40 Wis. 328; S. C., 22 Am. Rep. 702; McLean County v. Humphreys, 104 Ill. 378; Petition of Ferrier, 103 id. 367; S. C., 42 Am. Rep. 10; Roth v. House of Refuge, 31 Md.

329; Ex parte Crouse, 4 Whart. (Penn.) 9. In those cases the detention of abandoned, dependent or depraved children, in houses of refuge or in industrial or reform schools is upheld, upon the ground that the power of magistrates and county courts to commit, and of such institutions to detain such children is "of the same character of the jurisdiction exercised by the court of chancery over the persons and property of infants, having foundation in the prerogative of the crown, flowing from its general power and duty as parens patria to protect those who have no other lawful protector, 2 Story Eq. Jur. 1333." Sheldon, J., in Petition of Ferrier, supra. Or as stated in Ex parte Crouse, supra, "May not the natural parents, when unequal to the task of education, or unworthy of it, be superseded by the parens patriæ, or common guardian of the community?" As to the soundness of the reasons given in these cases we have nothing to say. No one of them is an authority for the commitment of a minor charged with the commission of a crime to such an institution, without some kind of a trial and conviction.

otherwise be condemned to confinement in the common jail or penitentiary."

The statute further provided that in case the cause for the child's detention shall be inquired into by a proceeding in habeas corpus it shall be a sufficient return to the writ that he was committed to the guardianship of the directors of the school, and that the period for his discharge had not arrived. It is inti mated in the opinion of the court that it is questionable whether this provision can operate to restrict the power of the court, invested by the Constitution with jurisdiction in habeas corpus, from inquiring fully into the cause of the detention of a person restrained of his liberty.

With due respect for the learned court which pronounced this opinion, we are not convinced of the soundness of its reasoning or conclusion. The proceedings by which the accused was adjudged a suitable person to be committed to the house of refuge were conducted in secret, without his knowledge or consent or that of his parent or guardian, with no opportunity to be represented by counsel, to be confronted with and cross-examine the witnesses for the prosecution, or to produce witnesses in his own behalf. The liberty of the minor during the term of his minority, which might be for a period of many years, was made to depend upon the deliberations of a secret tribunal. A judgment rendered upon such an ex parte hearing is as little calculated to command the respect of the community as the proceedings of the ancient court of the star chamber. And so far as the other cases cited are like the Ohio case in legal effect, we cannot follow them.

People v. Turner, 55 Ill. 280; S. C., 8 Am. Rep. 645, was an application by the father for a writ of habeas corpus for the discharge from a reform school of his minor son. A statute of Illinois authorized the commitment to a reform school of children between six and sixteen years of age who are "vagrants or destitute of proper parental care, or are growing up in mendicancy, idleness or vice, to remain until reformed, or until the age of twenty-one years." The relator's son, committed to the school under this statute, was discharged, the commitment being held not to have been for any criminal offense, and the statute was declared unconstitutional. His confinement was held to be imprisonment without due process of law. Thornton, J., said: "Such a restraint upon natural liberty is tyranny and oppression. * If a father confined or imprisoned his child for one year, the majesty of the law would frown upon the unnatural act, and every tender mother and kind father would rise up in arms against such monstrous inhu- | opinion. manity. Can the State, as parens patriæ, exceed the power of the natural parent, except in punishing crime?"

* *

In Commonwealth v. Horregan, 127 Mass. 450, it was held that certain statutes relating to juvenile offenders, so far as they purport to give inferior tribunals jurisdiction of offenses punishable by infamous punishment, are unconstitutional.

A statute of Ohio authorized the grand jury, where a minor under the age of sixteen years is charged with crime, and the charge appears to be supported by evidence sufficient to put the accused upon trial, instead of finding an indictment, to return to the court that the accused is a suitable person to be committed to the house of refuge, and directed the court thereupon to order his commitment without trial by jury. The statute was declared constitutional. Prescott v. State, 19 Ohio St. 184; S. C., 2 Am. Rep. 388. The decision is put upon the ground that the case "is neither a criminal prosecution nor a proceeding according to the course of the common law, in which the right to a trial by jury is guaranteed. The proceeding is purely statutory, and the commitment, in cases like the present, is not designed as a punishment for crime, but to place minors of the description and for the causes specified in the statute, under the guardianship of the public authorities named, for proper care and discipline, until they are reformed, or arrive at the age of majority. The institution to which they are committed is a school, not a prison, nor is the character of their detention affected by the fact that it is also a place where juvenile convicts may be sent, who would

Whether what has been called a trial in other juris- . dictions in cases of this class is a trial within the meaning of our Constitution, and whether on any ground than that of a charge of crime, the Legislature can authorize minors or persons of age to be commit ted to the industrial school without a trial by jury, if if it were claimed, and without the consent of parent or other guardian, are questions on which we give no

Persons poor and standing in need of relief may and must be cared for by the overseers of the poor, and may be sent to the alms-house for support; but their detention cannot be regarded as involuntary. They are in no sense deprived of their liberty without the judgment of their peers or against the law of the land. They are neither criminals nor charged with the commission of crime, and this provision of the Constitution was not understood by its framers, as restricting the power of the Legislature to prescribe for the relief of the worthy poor. So children of profligate parents, or with vicious surroundings, may be taken from the custody of their natural guardians and committed to the guardianship of those who will properly care for their moral, intellectual and physical welfare. Prime v. Foote, ante, 52. But this is a power exercised by the State as parens patriæ in the welfare and interest of its citizens. 2 Story Eq. Jur., § 1333.

The common-law principle of reasonable necessity has an extensive constitutional operation-Aldrich v. Wright, 53 N. H. 398, 399, 400; Haley v. Colcord, 59 id. 7, 8; Hopkins v. Dickson, id. 235; Johnson v. Perry, 56 Vt. 703; State v. Morgan, 59 N. H. 322, 325; and in many cases authorizes the restraint of an insane person-Colby v. Jackson, 12 N. H. 526; Davis v. Merrill, 47 id. 208; O'Connor v. Bucklin, 59 id. 589, 591; Keleher v. Putnam, 60 id. 30; Hinchman v. Richie, Bright. (Penn.) 143; Fletcher v. Fletcher, 1 E. & E. 420; Buswell Insanity, §§ 19-24; even when he is committed to an asylum upon a defective process. Shuttleworth's case, 9 A. & E. (N. S.) 651. But a magistrate's power to commit to the industrial school for detention dur

ing minority, every person, under the age of seventeen years, charged with, but not convicted of an offense punishable with imprisonment otherwise than for life' on the ground of the "true interest and benefit" of the accused, does not come within any constitutional idea of reasonable necessity that has prevailed in this State. For his interest and benefit the magistrate might as well be authorized to send him to the State prison as to the industrial school, or any other penal institution.

We are of opinion that so much of section 14, chapter 287, General Laws as authorizes a justice of the peace to commit to the industrial school a minor under the age of seventeen years upon a complaint charging him with the commission of a crime of which the justice has jurisdiction only to require him to recognize for his appearance at the Supreme Court, on the motion of the State's attorney and without the consent of any person authorized to bind the minor by consent, is in violation of article 15 of the Bill of Rights.

Exceptions overruled.

Blodgett, J., did not sit; the others concurred.

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NEW YORK COURT OF APPEALS ABSTRACT. PRACTICE-FINDINGS OF SURROGATE ON QUESTIONS OF CODE CIV. PROC., § 1337 -NOT REVIEWABLE HERE-EXCEPTIONS TO FINDINGS-CODE CIV. PROC., § 2545.-The decisions of the surrogate upon the questions of fact involved in this case, although reviewable in the Supreme Court, are not reviewable in this court, provided there is any evidence to support his findings. Code Civ. Proc., § 1337; In re Will of Ross, 87 N. Y. 514. The proceedings and testimony before the surrogate show that the principal witnesses on the part of the petitioner testified under the influence of a very bitter feeling toward the appellant. Much of the evidence is very highly colored, and in some respects greatly exaggerated. It is alleged on the part of the appellant that this proceeding was instituted and prosecuted rather to gratify the ill-feeling of those members of the appellant's family who have promoted it, and to inflict pain upon the appellant, than with a view to benefit the infant. It may be that this allegation is not unfounded, still even if established it is not sufficient to give this court jurisdiction to reexamine the questions of fact where there is any evidence to sustain the conclusion reached in the courts below. We have carefully examined the testimony, and are unable to say that it is so destitute of evidence in support of the findings of the surrogate as to justify us in reversing them. Various exceptions were taken to rulings of the surrogate on questions of evidence, and to his findings and refusal to find, but none of them are, in our judgment, sufficiently well founded and material to authorize a reversal of the decree. Code Civ. Proc., § 2545. We think that the award of costs against the appellant personally was erroneous. The proceeding was ostensibly for the benefit of the infant. The petition alleged that he was without a legal guardian, and prayed that some person other than his mother be appointed guardian of his person. The mother was cited because she was prima facie entitled to the custody of the infant, but she was not a party to the proceeding in such a sense as to subject her to liability for the costs. The judgment of the General Term should be so modified as to reverse that part of the surrogate's decree which awards costs against the appellant, and affirm it in other respects without costs in this court to either party. Matter of Valentine. Opinion by Rapallo, J.

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MUST BE PLEADED.-The act of 1852, chapter 282, provides that the exemption of school-houses and seminaries of learning from taxation, under the Revised Statutes, "shall not apply to any such building or premises in the city of New York unless the same shall be exclusively used for such purposes and exclusively the property of a religious society or the New York Public School Society." The lot upon which the school-house occupied by the plaintiff is situated is not exclusively the property of the plaintiff, but is owned in fee by Hamilton Fish. Neither does the record nor the evidence in this case show that the plaintiff is the owner of the building. All that is disclosed upon the subject by the evidence is that by indenture of lease, dated October 18, 1864, Hamilton Fish demised to Joseph Meyer the premises in question for the term of twenty-one years from the 1st of November, 1864, at the annual rent of $225, the lessee covenanting to pay all taxes and assessments which should be imposed on the demised premises during said term, which lease was subsequently assigned to the plaintiff. The entire lease is not set forth in the printed case, and it does not even appear that it contains any covenant on the part of the lessor to pay for the buildings or renew the lease. As the case stands before us the plaintiff is simply the lessee of the premises upon which the tax was levied, the fee being in Hamilton Fish, who is assessable therefor as owner. It is not necessary therefore to pass upon the question whether the plaintiff is a religious society within the meaning of the act of 1852. It is a sufficient answer to this action that the real estate taxed is not exclusively the property of the plaintiff, the fee being in an individual and liable to taxation. This action is brought to declare void the taxes levied on said lot and building for the years 1866, 1867 and 1868. It is alleged in the plaintiff's points, and appears from the report in 4 Hun, 446, that in an action brought by the same plaintiff against the same defendant to annul the taxes levied on the same premises in the years 1869 and 1870, judgment was rendered in November, 1874, declaring the premises to be exclusively the property of a religious society exempt from taxation. The opinion of the General Term affirming that judgment was adopted as the opinion of the court in the present case and covers all the claims made by the plaintiff. That judgment was not however pleaded as an estoppel or given in evidence in the case before us, and its effect cannot therefore be now considered. Hebrew Free School Association of the City of New York v. Mayor, etc., of New York. Opinion by Rapallo, J. [Decided Oct. 6, 1885.]

MARRIAGE-CONVEYANCE OF LAND TO HUSBAND AND WIFE-TENANTS BY THE ENTIRETY.-This case is controlled by the decision in Bertles v. Nunan, 92 N. Y. 152. The common-law rule, that when land is conveyed to husband and wife they do not take as tenants in common, or as joint tenants, but each becomes seised of the entirety, per tout aud not per my, and that on the death of either the whole survives to the other, was held in that case to be still subsisting in this State, notwithstanding the acts in relation to married women. The act of 1880, chapter 472, which allows husband and wife to make division between themselves of lands thus held, was before us in that case but was not regarded as abrogating the former rule. At all events it could not affect the title in question in this action as the conveyance to Jacob Bram and his wife was made in 1878. The seisin of the

entirety by each and the right of survivorship could

not be divested by a subsequent statute, as those rights vested by virtue of the grant and not of mere succession. The act of 1880 could not therefore so operate as to authorize either the husband and wife

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