The Chancellor.
I11 some of the earlier decisions in the court of chancery, in England, it was settled that where a bill or information was filed to set aside an act done by a lunatic, upon the ground of his incompetency, it was not necessary that the lunatic himself should be made a party. The case of Attorney General v. Parkhurst, (1 Ch. Ca. 112.) which is one of the cases alluded to, was settled upon great consideration ; being first decided by Mr. Justice Tirrell, sitting for the lord -keeper, and afterwards affirmed, upon a rehearing, by Sir Orlando Bridgman, assisted by some of the-judges. The decision was probably based upon the principle that the lunatic should not be compelled to stultify himself. And I am not avzare that it has ever been overruled. It was therefore properly followed by Chancellor Kent, in the case of Otley & Baker v. Messere, (7 John. Ch. Rep. 139,) where a bill was filed by the committee of the lunatic to set aside acts done by the lunatic when he [32]*32was incompetent. It was not intended, however, in the case' of the Attorney General v. Parkhurst, to decide that the attorney general or the committee could file an information or a hill for the benefit of .a lunatic, in all cases, without joining the lunatic himself as a party. For in the case of Palmer, attorney general, v. Woolrich, (1 Ch. Gas. 153,) which was decided •he next year by the same lord keeper, Sir Orlando Bridgman, he allowed a demurrer to a bill filed by the attorney general, for the benefit of a lunatic, upon the ground that the lunatic was not a party; the bill in that case not being brought for the purpose of avoiding any act done by the lunatic after the loss of his reason. And this decision was in conformity with the note, at the end of the report of the case of Fuller v. Lance, (1 Ch. Gas. 19,) which was decided six years previous-to that time. In accordance with this decision, the bills in the cases of Clark v. Clark, (2 Vern. 412,) and Addison v. Dawson, (Idem, 678,) which came before the court in 1700, and 1711, appear to have-been filed in the name of the lunatic, by his committee; in the same manner that an infant files a bill by his next friend. In. 1729, the question came before Lord Chancellor King, in the case of Ridler v. Ridler, (1 Eq. Ca. Abr. 279,) whether the lunatic was at liberty to join with his committee in a bill filed to set aside a deed of settlement obtained from him after he became a lunatic; the defendant having objected by demurrer that it was against the maxim of law to permit a party to stul.ify himself. And his lordship decided that the lunatic might be a party to die bill, for that purpose, with the committee. The result of these several decisions was, that where the object of the bill was to set aside the act or deed of the lunatic upon the •ground of his mental incapacity at the time the act was done, or the deed was executed, the bill might be filed by the 'committee, or the attorney general alone; or by joining the lunatic with the committee, or with the attorney general when there was no committee, or when the interest of the committee was adverse -to that of .the lunatic. And the practice in England, ever since that time, appears to have been either to join the committee with -.the lunatic, in bringing suits for his bene-
[33]*33fit, or to file the bill in the name of the lunatic, by his committee. Thus in a case before Lord Thulow, in 1791, (2 Diclc. Rep. 748,) where a bill was filed against the committee, by the attorney general in behalf of the lunatic, it appears to have been filed by him on the relation of the lunatic, and by the lunatic himself as an informant and plaintiff also. In the Practical Register it is also stated that lunatics must generally sue and answer by their committees ; and if the lunatic is not named a party in the bill, or in an information by the attorney general, it is commonly a good cause of demurrer. But an exception is made in the case where the object of the suit is to relieve the lunatic against some act done by himself during the lunacy. (Wyatt's P. R. 272.) Lord Redesdale also says, idiots and lunatics sue by the committees of their estates; and where their interests clash with those of their committees, the attorney general files an information in their behalf; but in that case a proper relator must be named who will be responsible for the costs. In the unreported case, referred to by him to show that the attorney general is the proper person to institute a suit for one who has been found a lunatic and where no committee has been appointed, the information appears to have been filed by the attorney general on behalf of the lunatic Maria Lapine, on the relation of a third person ; and the lunatic herself was also joined in the suit as a complainant. (Mit. PL ith Lond. ed. 29.) And this was in conformity to the decision of Lord Keeper Bridgman in the case of Palmer, attorney general, v. Woolrich, before referred to, and the subsequent decisions of Sir Thomas Sewel and of Lord Northington, that some third person must be named as a relator who would be responsible for the defendant’s costs if the suit was not sustained. (See Attorney General v. Tyler, 1 Dick. 378; 2 Eden, 230, S. C.) Cooper, Lube, and Welford, in their several treatises on equity pleading, say, that idiots and lunatics must exhibit their bills by the committees of their estates; and the last mentioned writer says, where the committee sues for any thing, the committee as well as the lunatic is made, a party. (Coop. 31. Lubs, 22. Welf. 22.) And Willis gives the forth of the com[34]*34mencement of a bill where the committee and' the lunatic both join as complainants, instead of filing a bill in the name of the lunatic by his committee. (Willis' Eq. PI. 5.) Shel'ford also says, that idiots and lunatics' must sue in courts of equity by the committees of their estates, and in such suits the committee as well as the lunatic should Be parties'; and if a lunatic is not named a party in a bill- or information in his behalf, it is a good cause of demurrer. (Shelf. on Lun. 415. See also Stock's Law of Non Com. Ment. 33, and Calv. on Parties, 303.) The-late Judge Story, after stating the principles of the English law on the subject, and the- authority- of the great seal to op-. point committees of idiots and. lunatics, lays down the same rules as applicable to courts- of equity in this country. (Story's' Eq. Pl. § 65.)
When it is said, by these- writers, that idiots and lunatics must1 sue by their committees, it is not meant that the suit is to be brought by the committee in his own name, merely describing himself as the committee of the lunatic, as has been erroneously supposed by the court of one of our sister states. But they mean that the suit should be brought-in the name of the lunatic, stating that he sues by the committee of his estate, naming them; as in the case of an infant suing by his next friend; Or that the suit should be prosecuted in the names of the lunatic and of his committee, as in the precedent in Willis’ Pleadings, before- referred to.
In the case under consideration; the bill is filed by the committee in their own names, and- they only describe themselves as the committee of the habitual- drunkard. This, therefore, is-a bill by the committee alone; and is not the bill of the habitual drunkard by his committee.
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The Chancellor.
I11 some of the earlier decisions in the court of chancery, in England, it was settled that where a bill or information was filed to set aside an act done by a lunatic, upon the ground of his incompetency, it was not necessary that the lunatic himself should be made a party. The case of Attorney General v. Parkhurst, (1 Ch. Ca. 112.) which is one of the cases alluded to, was settled upon great consideration ; being first decided by Mr. Justice Tirrell, sitting for the lord -keeper, and afterwards affirmed, upon a rehearing, by Sir Orlando Bridgman, assisted by some of the-judges. The decision was probably based upon the principle that the lunatic should not be compelled to stultify himself. And I am not avzare that it has ever been overruled. It was therefore properly followed by Chancellor Kent, in the case of Otley & Baker v. Messere, (7 John. Ch. Rep. 139,) where a bill was filed by the committee of the lunatic to set aside acts done by the lunatic when he [32]*32was incompetent. It was not intended, however, in the case' of the Attorney General v. Parkhurst, to decide that the attorney general or the committee could file an information or a hill for the benefit of .a lunatic, in all cases, without joining the lunatic himself as a party. For in the case of Palmer, attorney general, v. Woolrich, (1 Ch. Gas. 153,) which was decided •he next year by the same lord keeper, Sir Orlando Bridgman, he allowed a demurrer to a bill filed by the attorney general, for the benefit of a lunatic, upon the ground that the lunatic was not a party; the bill in that case not being brought for the purpose of avoiding any act done by the lunatic after the loss of his reason. And this decision was in conformity with the note, at the end of the report of the case of Fuller v. Lance, (1 Ch. Gas. 19,) which was decided six years previous-to that time. In accordance with this decision, the bills in the cases of Clark v. Clark, (2 Vern. 412,) and Addison v. Dawson, (Idem, 678,) which came before the court in 1700, and 1711, appear to have-been filed in the name of the lunatic, by his committee; in the same manner that an infant files a bill by his next friend. In. 1729, the question came before Lord Chancellor King, in the case of Ridler v. Ridler, (1 Eq. Ca. Abr. 279,) whether the lunatic was at liberty to join with his committee in a bill filed to set aside a deed of settlement obtained from him after he became a lunatic; the defendant having objected by demurrer that it was against the maxim of law to permit a party to stul.ify himself. And his lordship decided that the lunatic might be a party to die bill, for that purpose, with the committee. The result of these several decisions was, that where the object of the bill was to set aside the act or deed of the lunatic upon the •ground of his mental incapacity at the time the act was done, or the deed was executed, the bill might be filed by the 'committee, or the attorney general alone; or by joining the lunatic with the committee, or with the attorney general when there was no committee, or when the interest of the committee was adverse -to that of .the lunatic. And the practice in England, ever since that time, appears to have been either to join the committee with -.the lunatic, in bringing suits for his bene-
[33]*33fit, or to file the bill in the name of the lunatic, by his committee. Thus in a case before Lord Thulow, in 1791, (2 Diclc. Rep. 748,) where a bill was filed against the committee, by the attorney general in behalf of the lunatic, it appears to have been filed by him on the relation of the lunatic, and by the lunatic himself as an informant and plaintiff also. In the Practical Register it is also stated that lunatics must generally sue and answer by their committees ; and if the lunatic is not named a party in the bill, or in an information by the attorney general, it is commonly a good cause of demurrer. But an exception is made in the case where the object of the suit is to relieve the lunatic against some act done by himself during the lunacy. (Wyatt's P. R. 272.) Lord Redesdale also says, idiots and lunatics sue by the committees of their estates; and where their interests clash with those of their committees, the attorney general files an information in their behalf; but in that case a proper relator must be named who will be responsible for the costs. In the unreported case, referred to by him to show that the attorney general is the proper person to institute a suit for one who has been found a lunatic and where no committee has been appointed, the information appears to have been filed by the attorney general on behalf of the lunatic Maria Lapine, on the relation of a third person ; and the lunatic herself was also joined in the suit as a complainant. (Mit. PL ith Lond. ed. 29.) And this was in conformity to the decision of Lord Keeper Bridgman in the case of Palmer, attorney general, v. Woolrich, before referred to, and the subsequent decisions of Sir Thomas Sewel and of Lord Northington, that some third person must be named as a relator who would be responsible for the defendant’s costs if the suit was not sustained. (See Attorney General v. Tyler, 1 Dick. 378; 2 Eden, 230, S. C.) Cooper, Lube, and Welford, in their several treatises on equity pleading, say, that idiots and lunatics must exhibit their bills by the committees of their estates; and the last mentioned writer says, where the committee sues for any thing, the committee as well as the lunatic is made, a party. (Coop. 31. Lubs, 22. Welf. 22.) And Willis gives the forth of the com[34]*34mencement of a bill where the committee and' the lunatic both join as complainants, instead of filing a bill in the name of the lunatic by his committee. (Willis' Eq. PI. 5.) Shel'ford also says, that idiots and lunatics' must sue in courts of equity by the committees of their estates, and in such suits the committee as well as the lunatic should Be parties'; and if a lunatic is not named a party in a bill- or information in his behalf, it is a good cause of demurrer. (Shelf. on Lun. 415. See also Stock's Law of Non Com. Ment. 33, and Calv. on Parties, 303.) The-late Judge Story, after stating the principles of the English law on the subject, and the- authority- of the great seal to op-. point committees of idiots and. lunatics, lays down the same rules as applicable to courts- of equity in this country. (Story's' Eq. Pl. § 65.)
When it is said, by these- writers, that idiots and lunatics must1 sue by their committees, it is not meant that the suit is to be brought by the committee in his own name, merely describing himself as the committee of the lunatic, as has been erroneously supposed by the court of one of our sister states. But they mean that the suit should be brought-in the name of the lunatic, stating that he sues by the committee of his estate, naming them; as in the case of an infant suing by his next friend; Or that the suit should be prosecuted in the names of the lunatic and of his committee, as in the precedent in Willis’ Pleadings, before- referred to.
In the case under consideration; the bill is filed by the committee in their own names, and- they only describe themselves as the committee of the habitual- drunkard. This, therefore, is-a bill by the committee alone; and is not the bill of the habitual drunkard by his committee. And a decree in favor of the-complainants, in this-suit, would not be a decree in favor of- the. habitual drunkard; (See Southerland v. Goff, 5 Port. Alab. Rep. 508.)
I think, therefore, the bill was defective inform, even as far as-it sought- an account and payment of rents and profits which-had become a part of; the habitual- drunkard’s personal estate,at the commencement-of this suit; And if the objection- that [35]*35he was not made a party to-the suit with his committee, had1 been stated as a special cause of demurrer, I think the demurrer to the whole bill ought to have been sustained on that ground. But the statements in the bill as to the right's of the habitual drunkard, and the prayers for relief, except the general prayer, are in the proper form to enable the court to make a final decree for the payment of the habitual drunkard’s share of the1 rents and profits of the premises to his committee, for his use and benefit; so as to protect the defendant from a second recovery for the same matter, ill case the habitual drunkard should die- or be restored to the possession and control of liis property'. For that reason, a general demurrer to the whole bill, for want of equity, was not well taken; as the objection was merely formal as to the part- of the bill which sought for ah" account and payment of rents and profits. And’ the habitual drunkard, by his; committee, had a right to file a bill in this court against the defendant, as his co-tenant in common,, for such account and payment, independent of the claim"- for a partition of the premises.
The reason why the lunatic himself shotild be a party to" á suit for the recovery of property claimed to belong to him is, that, in case the defendant should succeed in his defence^ he may not be subjected to a second litigation'for the same matter, by" the lunatic, should" he be restored to"the possession and control-of his property; or by the representatives of the lunatic after his death. For a suit prosecuted in the name of the committee alone, who are the mere bailiffs of the crown in England, and of the court of chancery in this state, would not estop the lunatic, or his legal representatives, from litigating the same matter over again, after his restoration to his reason, or upon his death; That is a right which the defendant may waive, by neglecting' to make the objection by demurrer,, or answer, that the lunatic himself is not made a party complainant in the suit.
Again; in this state the court of chancery;.during the continuance of the lunacy, has, by the statute, the whole control of the personal estate and choses in action of the lunatic. And-it can transfer the title to the'same, by directing a sale- bv the [36]*36committee; and may direct the committee to release any right of action in relation thereto, as may be equitable and just. So that when a matter relating to the personal estate of the lunatic,-, has been fairly litigated by the committee in this court, and decided against them, the court may protect the defendant against a new suit, by the lunatic or his representatives, although the lunatic is not a formal party to the suit brought by his committee; by directing the committee to transfer the property: which was in litigation, to the defendant, or to release the der fendant from any further claim on account thereof. The objection of the non-joinder of the lunatic, as a party complainant, with his committee in such a suit, appears, therefore, to be a matter of form and not of substance. And it is not such an ' objection as can avail the defendant upon a general demurrer for want of equity only. For if the objection which is urged upon this appeal, had been stated in the demurrer, it might have been obviated by a slight amendment of the bill. ■
An objection for want of necessary parties might have been ■made ore terms, upon payment of the costs of the demurrer upon the record; but that does not appear to have been done in this case. And it is now wholly immaterial to the defenlant whether the suit is prosecuted in the name of the habitual drunkard, by his committee, or by the committee of his estate ■ n their own names only, so far as the rents and profits of the premises are concerned. For, since this appeal the legislature has authorized the committee of a lunatic or an habitual drunkard to sue -in their own names, for any debt, claim, or demand, transferred -to them, or to the possession and control of which they are entitled as such committee. (Laws of 1845, pp. 91, 92.) But the question whether a suit can be commenced in the name of the committee alone for the recovery of real estate, or to establish the title to the same, or whether " a suit in partition can be instituted in the name of such committee, without joining the lunatic or habitual drunkard as a party, is "wholly unaffected by the act of 1845. If the committee have no such right, the objection that the habitual drunkard is not made a party, is a matter of substance, in the [37]*37present case; so far as the bill seeks a partition of the real estate owned by him, and by the defendant, as tenants in common. And, upon a careful examination of the law, as it existed previous to the revolution, and the various statutory provisions . on the subject of idiots, lunatics, <fcc. in this state, I am satisfied • that a decree in partition, to which the habitual drunkard is ■ not a party, will not transfer the legal title to his undivided share of that portion of the premises which may be set off to the defendant in severalty.
In England, the care and custody of idiots and lunatics and their estates, by the common law as well as by the statutes, (17 Edw. 2, ch. 9, 10,) belonged to the king as parens patria. (Beverly's case, 4 Coke, 127.) And the power of the crown in this respect was exercised by the keeper of the great seal, under special warrants from the crown from time to time, and did not belong to the court of chancery as such. But the statute 17th Edward 2, ch. 10, did not authorize the sale of the lands or tenements of a lunatic. On the contrary, it directed that the same should be safely kept, and not' aliened. (1 Evans' Stat. 473. Ex parte Dikes, 8 Ves. Rep. 79.) 1 In the case of a lunatic, therefore, the great seal, acting as the representative of the crown, under the sign manual, could only grant, the care and custody of the lunatic and his estate during pleasure. And upon the restoration of the lunatic to his reason, he was entitled to have his lands restored to him with an unimpaired title. Or, if he died before the restoration of his reason, such lands went immediately to his heir, unaffected by any leases made in the meantime. Even in the case of idiots, although the king had a beneficial interest in the surplus rents and profits of the real estate, during the life of the idiot, beyond what was necessary for his support, the statute 17 Edward 2, ch. 9, did not allow the alienation of the estate beyond the life of the idiot; but expressly directed that after his death the estate should be surrendered to his heirs; so that they should not be disinherited. Such was the state of the English law in regard to the real estate of idiots and lunatics at the time of the settlement of this country; and it became a part of the [38]*38common law of the colony of New-York. Several statutes were subsequently passed in relation to the surrender and renewal of leases of the .estates of lunatics, during the reigns of George .the second and his successor. But if they were ever in force here, they -were repealed, after the close .of the revolution, by the general .law on that subject.
.Our statute of February, 1788, (2 Greenl. Lmos, 25,) substituted the chancello]- for the crown in relation to the persons and estates of idiots and lunatics; and expressly prohibited the alienation of the lands or tenements of either. In the revision of 1801 the language of the-act was somewhat varied; for the committee was directed, in case the-personal estate of the idiot or lunatic was not sufficient to pay his -debts, or where such personal estate and the income of -the real was -not sufficient for his maintenance and that of his family, to apply to the chancellor, by petition, for a sale of so much of the real estate a? should be necessary for that purpose. The chancellor was also authorized to decree a specific performance of contracts made .by lunatics before their lunacy, and to authorize the committee of an idiot or lunatic to agree to a partition of lands held in common with other persons. But the sixth section of tlie revised act of March, 1801, (1 R. L- of 1813, p. 148,) expressly provided that the ¡real estate of an idiot or lunatic should not be aliened or disposed of, otherwise than as directed by that apt, The same provisions, in substance, are contained in -the .itl.e of the revised statutes relative to the custody and disposition of the estates of idiots, lunatics, persons of unsound mind, and drunkards. (-2 R. ¡5'. 52.) The twenty-third section of that title prohibits the leasing of the real estate for mo,-e than five years; and declares that it shall not be mortgaged, aliened, or disposed of, otherwise tiran as directed ill that title.
It was under the revised act of 180.1 that the case of The Executrs of Brasher v. Van Cortlandt, (2 John. Ch. Rep. 242, 400,) arose and was decjded by the late Chancellor Ken.t, When the case first came before hjm, 1 think lie very correctly decided that it xvas not necessary to make the lunatic a party to a suit against his conunilice to compel them to sell his real [39]*39estate for the payment of the debt due from the lunatic to the complainant. The court had no power to decree a conveyance by the lunatic for that purpose, even if he was a party to the suit. Nor was there any statute, or any principle of the common law, which would have enabled the court to transfer the legal title of the lunatic’s land, to a purchaser, merely by the deed of a master, executed in pursuance of a decree of the court. But the statute had made it the duty of the committee of tire lunatic to apply to the court for a sale of the real estate for the payment of debts, where the personal estate was not sufficient for that purpose. The court, therefore, had the right, upon an application of a creditor, to compel the committee to comply with the provision of -the statute, in that respect, by a summary proceeding in the matter of the lunacy. Or if the debt was unliquidated, or the right of the creditor was disputed, it might be a proper case to file a bill, by the permission of the court, for the purpose óf settling tire right to the debt, and to compel the committee to make the proper'application, and obtain an order authorizing a sale, &c.; and in such a suit I do not see any valid ground of objection, on the part of the committee, that tile lunatic himself was not made a party defendant. For the whole burthen of the defence of the suit must necessarily rest upon the committee, even if the lunatic himself was a party. And his presence as a party was not necessary to enable them to apply and*obtain the authority of the court, to sell .and convey the property, in the manner authorized by the statute. The complainants, it is true, «tight have an interest in making the lunatic a party, so that the decree establishing their debt would be final and conclusive against him and his representatives, in case he should be restored to his reason, or should die before an actual sale of his property by the committee under the authority of the court. It was upon that ground that I decided, xn the case of Beach v. Bradley, (8 Paige’s Rep. 146,) that the lunatic might be a proper parly, though not a necessary party, to such a bill filed against his committee. When die case of The Executors of Brasher v. Van Cortlandt, came tne second time before Chancellor Kent, he, unquestionably, meant [40]*40to decide that the title of the lunatic to real estate might be sold and conveyed for the payment of his debts, without the presenting of a formal petition, by the committee, provided the other formalities required by the statute on the subject were substantially complied with. But, I.do not understand my learned predecessor as deciding, or even intimating an opinion, that there was any other way in which the legal title could be transferred to the purchaser, under the sale which he directed to be made, than- by a deed duly executed by the committee of the lunatic, pursuant to the provision of the statute making it their duty to sell and convey the real estate of the lunatic for the payment of his debts. How that case was ultimately disposed of does not appear; as the decree for a sale required such sale .to be reported to the court, for further directions, before any conveyance should be made to the purchaser. Although the act of March, 1801, authorized the chancellor, in his discretion,, to join one or more persons with the committee in making a sale for the payment of debts, &c. and the master was properly joined with the committee, I have great doubts whether the legal title to the property could be conveyed to a purchaser in any other manner than by a compliance with all the forms required by the statute. For the act itself expressly declared that the real estate should not be aliened or disposed of in any other way. And I think the decree in that case, the existence and validity of the debt having been ascertained, should have directed the committee to present a petition in the form prescribed by the statute ; and that, upon the granting of the prayer thereof, such committee, either in conjunction with the master or otherwise as the court might think proper to direct, should sell so much of the real estate of the lunatic as was 'necessary for the payment of the complainant’s debt, including costs, and should execute a good and sufficient deed to the purchaser, and pay the complainant’s demand out of the pro-' ceeds of the sale. And the court might have enforced a compliance with the directions of such a decree by attachment against the committee, or by removing tl em and appointing others in their place.
[41]*41Here the committee of the habitual drunkard have no power to convey the real estate for the purpose of carrying into effect a decree of the court in a partition suit; though such committee, with the sanction'of the court, may consent to a voluntary partition between the habitual drunkard and his co-tenant m common. Nor is there any statute authorizing the committee to prosecute a suit for partition in their names alone ; or authorizing another person to prosecute a partition suit against them without making the habitual drunkard, who is the actual owner of an undivided part of the premises, a party to the suit. The only way, therefore, in which a legal partition can be made of the property of an idiot, or lunatic, or an habitual drunkard, except by an agreement between the committee and the other tenants in common, with the concurrence of the court, is to make him an actual party. In that case his legal title to the portion of the premises which may be set off to the adverse party in severalty, or which may oe sold by the commissioners, or the master, under the decree, will pass, without any conveyance, either from the idiot or lunatic, or habitual drunkard, or from his committee, under the provisions of the revised statutes relative to the partition of lands. (2 R. S. 323, §§ 36, 37, of 3d ed. Idem, 327, §§ 65, 66. Idem, 330, § 92.)
As there was a general demurrer to the whole bill, without specifying any cause of demurrer to that part of the bill as to which the habitual drunkard would have been a mere formal party, it was proper to overrule the demurrer. It should have been overruled, however, without prejudice to the right of the defendant to insist, by his answer, that the habitual drunkard should have been made a complainant, with his committee, so far as the bill sought a partition of the premises; and with liberty to the complainants to amend their bill by inserting his name as one of the complainants therein. The order'appealed from must be modified accordingly. And neither party is to have costs as against the other upon this appeal.