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This was an action of ejectment brought by the plaintiffs to recover three-sevenths of a farm consisting of about three hundred acres, which is particularly described in the complaint. It is conceded on all sides that the father of the plaintiffs, one Michael O'Donoghue, who died in the month of April, 1860, leaving a will with codicils which were subsequently admitted to probate, was seized and possessed of this farm in fee simple at the time of his death. Both the plaintiffs and the defendant claim under him. The plaintiffs claim title directly under the will of their father as devisees of the real estate in question. The defendant claims title through a sale in partition at the suit of another adult heir in the year 1870. The only question presented by the appeal is whether the plaintiffs' title, derived directly from their father's will, was divested by this sale. All questions with respect to mesne profits and all claims for improvements and the payment of taxes have been eliminated from the case by stipulation. There are no questions in the case as to superior equities, and no facts alleged or found that present any question except the plaintiffs' title. The defendant makes no claim to the premises in dispute, except such as he has derived through the judgment and sale in partition.
The allegations of the defendant's answer present the questions
of law involved in this case quite distinctly. After setting forth the title of the ancestor, the execution and probate of his will, the commencement of an action of partition by an adult child against these plaintiffs, who were then infants, and their mother, who was their general guardian under the will, and their guardian ad litem in the partition action, it is averred that on the 25th of May, 1870, the referee appointed by the court conveyed the land to the plaintiffs' mother, then their guardian, as already stated. It is then alleged that "the mother, under and in pursuance of this conveyance, became and was the owner, and seized of the land described in the complaint, and that immediately thereafter she entered into the possession, under claim of title, exclusive of any other right, founding the claim upon a written instrument, to wit, the said referee's deed, before mentioned;" that she continued to occupy and possess the premises under this conveyance until the 23d of August, 1880, when they were conveyed, upon a judgment of foreclosure of a mortgage, to one Harriet Boies, the defendant's grantor. It further appears from the answer that the plaintiffs' mother, who was the widow of the testator and the purchaser at the partition sale, in the month of April, 1876, mortgaged the farm to the said Harriet Boies; that she made default in the payment of the mortgage; that it was foreclosed, and the mortgagee became the purchaser of the land in controversy, which the latter subsequently conveyed to the defendant.
On the trial of the action before the court judgment was rendered in favor of the defendant. But this judgment has been reversed by the General Term upon an opinion which distinctly holds that the partition judgment and sale and conveyance of the land thereunder to the testator's widow, who was then the general guardian and guardian ad litem of the plaintiffs, were absolutely void.
In 1870, when the judgment in partition was rendered and the sale made, the following statutory provision in regard to the sale of the real estate of infants was in force: "But no real estate or term for years, shall be sold, leased or disposed
of in any manner against the provisions of any last will, or of any conveyance, by which such estate or term was devised or granted to such infant." (2 R.S. page 195, § 176.) This provision of law has long existed in this state and is now embodied in section 2357 of the Code which reads as follows: "Real property or an interest in real property, shall not be sold, leased, or mortgaged, as prescribed in this title, contrary to the provisions of a will, by which it was devised, or of a conveyance or other instrument, by which it was transferred, to the infant or incompetent person." The learned counsel for the plaintiffs contends that since the will of the plaintiffs' ancestor, under which they derive title, in terms forbade a sale of the land devised during the minority of his children, that the judgment and sale in the partition action was contrary to the provisions of the will and contrary to the statute, and, hence, without jurisdiction and absolutely void. This contention brings us to the examination of the provisions of the will under which all the parties claim title. It is apparent, from an examination of that instrument and the codicil, that the main purpose of the testator was to provide for the support of his children during their infancy and secure to each of them at majority his or her share of his lands in specie. He directs that his debts and funeral expenses be paid, gives several small legacies to relatives, an annuity to his wife in lieu of dower, and then leaves the balance of his estate in trust for the benefit of his children. This trust is created by the eighth clause of the will wherein the testator distinctly expresses his intention to convert all his property into personalty since he gives it all to his executors in trust to sell the real estate, receive the rents and profits thereof until the sale and to divide the property into eight parts, applying the income and profits of one of these parts to the use of each child during infancy and pay the principal to each at majority, with a gift over in case of death before majority. A power of sale is given to the executors and trustees. In the ninth clause the executors are authorized to keep the improvements on the real estate insured, and to preserve the
premises in good repair, and in case of loss or damage to apply any funds in their hands, as well as any insurance moneys, to rebuilding or repairing the same. He confers power upon them to mortgage the real estate or any part thereof, if necessary in their judgment from time to time, for the purpose of paying off any existing mortgage thereon or any assessment to be imposed on the same, and to execute and deliver any deeds and conveyances of the real estate, and to compound and adjust all claims or demands by or against the estate. This clause concludes with the following sentence: "I further authorize and empower my executors, whenever any of my children shall attain lawful age or die under lawful age, to make partition of my real estate, and to allot and set apart to such child so attaining lawful age, or to his or her descendants or surviving brothers and sisters, or their descendants, if such child die under lawful age, his or her equal share of my estate."
Thus far no prohibition can be found in the will against the sale of the real estate during the infancy of the children. But by a codicil the following restriction is imposed upon the executors in the following words: "Whereas, by my said will I have directed the sale of all my real estate in the city of New York.
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This was an action of ejectment brought by the plaintiffs to recover three-sevenths of a farm consisting of about three hundred acres, which is particularly described in the complaint. It is conceded on all sides that the father of the plaintiffs, one Michael O'Donoghue, who died in the month of April, 1860, leaving a will with codicils which were subsequently admitted to probate, was seized and possessed of this farm in fee simple at the time of his death. Both the plaintiffs and the defendant claim under him. The plaintiffs claim title directly under the will of their father as devisees of the real estate in question. The defendant claims title through a sale in partition at the suit of another adult heir in the year 1870. The only question presented by the appeal is whether the plaintiffs' title, derived directly from their father's will, was divested by this sale. All questions with respect to mesne profits and all claims for improvements and the payment of taxes have been eliminated from the case by stipulation. There are no questions in the case as to superior equities, and no facts alleged or found that present any question except the plaintiffs' title. The defendant makes no claim to the premises in dispute, except such as he has derived through the judgment and sale in partition.
The allegations of the defendant's answer present the questions
of law involved in this case quite distinctly. After setting forth the title of the ancestor, the execution and probate of his will, the commencement of an action of partition by an adult child against these plaintiffs, who were then infants, and their mother, who was their general guardian under the will, and their guardian ad litem in the partition action, it is averred that on the 25th of May, 1870, the referee appointed by the court conveyed the land to the plaintiffs' mother, then their guardian, as already stated. It is then alleged that "the mother, under and in pursuance of this conveyance, became and was the owner, and seized of the land described in the complaint, and that immediately thereafter she entered into the possession, under claim of title, exclusive of any other right, founding the claim upon a written instrument, to wit, the said referee's deed, before mentioned;" that she continued to occupy and possess the premises under this conveyance until the 23d of August, 1880, when they were conveyed, upon a judgment of foreclosure of a mortgage, to one Harriet Boies, the defendant's grantor. It further appears from the answer that the plaintiffs' mother, who was the widow of the testator and the purchaser at the partition sale, in the month of April, 1876, mortgaged the farm to the said Harriet Boies; that she made default in the payment of the mortgage; that it was foreclosed, and the mortgagee became the purchaser of the land in controversy, which the latter subsequently conveyed to the defendant.
On the trial of the action before the court judgment was rendered in favor of the defendant. But this judgment has been reversed by the General Term upon an opinion which distinctly holds that the partition judgment and sale and conveyance of the land thereunder to the testator's widow, who was then the general guardian and guardian ad litem of the plaintiffs, were absolutely void.
In 1870, when the judgment in partition was rendered and the sale made, the following statutory provision in regard to the sale of the real estate of infants was in force: "But no real estate or term for years, shall be sold, leased or disposed
of in any manner against the provisions of any last will, or of any conveyance, by which such estate or term was devised or granted to such infant." (2 R.S. page 195, § 176.) This provision of law has long existed in this state and is now embodied in section 2357 of the Code which reads as follows: "Real property or an interest in real property, shall not be sold, leased, or mortgaged, as prescribed in this title, contrary to the provisions of a will, by which it was devised, or of a conveyance or other instrument, by which it was transferred, to the infant or incompetent person." The learned counsel for the plaintiffs contends that since the will of the plaintiffs' ancestor, under which they derive title, in terms forbade a sale of the land devised during the minority of his children, that the judgment and sale in the partition action was contrary to the provisions of the will and contrary to the statute, and, hence, without jurisdiction and absolutely void. This contention brings us to the examination of the provisions of the will under which all the parties claim title. It is apparent, from an examination of that instrument and the codicil, that the main purpose of the testator was to provide for the support of his children during their infancy and secure to each of them at majority his or her share of his lands in specie. He directs that his debts and funeral expenses be paid, gives several small legacies to relatives, an annuity to his wife in lieu of dower, and then leaves the balance of his estate in trust for the benefit of his children. This trust is created by the eighth clause of the will wherein the testator distinctly expresses his intention to convert all his property into personalty since he gives it all to his executors in trust to sell the real estate, receive the rents and profits thereof until the sale and to divide the property into eight parts, applying the income and profits of one of these parts to the use of each child during infancy and pay the principal to each at majority, with a gift over in case of death before majority. A power of sale is given to the executors and trustees. In the ninth clause the executors are authorized to keep the improvements on the real estate insured, and to preserve the
premises in good repair, and in case of loss or damage to apply any funds in their hands, as well as any insurance moneys, to rebuilding or repairing the same. He confers power upon them to mortgage the real estate or any part thereof, if necessary in their judgment from time to time, for the purpose of paying off any existing mortgage thereon or any assessment to be imposed on the same, and to execute and deliver any deeds and conveyances of the real estate, and to compound and adjust all claims or demands by or against the estate. This clause concludes with the following sentence: "I further authorize and empower my executors, whenever any of my children shall attain lawful age or die under lawful age, to make partition of my real estate, and to allot and set apart to such child so attaining lawful age, or to his or her descendants or surviving brothers and sisters, or their descendants, if such child die under lawful age, his or her equal share of my estate."
Thus far no prohibition can be found in the will against the sale of the real estate during the infancy of the children. But by a codicil the following restriction is imposed upon the executors in the following words: "Whereas, by my said will I have directed the sale of all my real estate in the city of New York. I now revoke said direction and authorize my executors to sell only my lands and premises known as number one hundred and twenty Broome street, front and rear, number ninety-one Cherry street, and number one hundred and ninety-nine Elm street — all in the city of New York — the proceeds of which sales shall be applied to the payment of mortgages on my other real estate. I do not intend by this change to alter the beneficial interest in said lands or the trusts and devises contained in the eighth clause of my said will, but design that the said lands not sold and the income thereof shall be held by my executors under the same trusts, provided in said clause in relation to the said lands in case of sale." There can be no room for construction with respect to the meaning of this provision. Not only was the power of sale conferred by the will expressly revoked, but
this revocation was accompanied by an express direction to the executors to sell only three specific pieces of real estate. The power to sell given to the executors by the will was general. It applied to all the real estate of the testator wherever situated, and although the provision in the codicil recites that he had directed in the will the sale of all the real estate in the city of New York, no such limitation is found in the will. The farm in question was situated in the country, but the revocation of the power of sale and the injunction against the sale applies to this piece of real estate, as well as to the bulk of his property which was situated in the city. I think it is impossible, upon any fair construction of language, to avoid the conclusion that the testator forbade the sale of his real estate during the infancy of his children, save only three parcels specifically designated. It must follow that the institution by the adult child, during the infancy of his brothers and sisters, of a partition action, followed by a judgment and sale, was a destruction of the trust and contrary to the express will of the testator.
The codicil by which the testator revoked the power of sale and provided that the real estate, with the exception of the three parcels mentioned, should not be sold during the existence of the trust, is the latest expression of the testator's intentions, and must be held to control any prior provision of the will. (VanNostrand v. Moore, 52 N.Y. 20; Pierpont v. Patrick,53 N.Y. 595; Viele v. Keeler, 129 N.Y. 198.) It is clear that the testator intended to withhold and has withheld from the executors and trustees the power to sell the land, and having organized the trust for a fixed period, it amounts to a direction that the realty shall be held for the beneficiaries and not its proceeds, and hence any sale by the trustees or by the courts must necessarily be in contravention of the trust, and, therefore, forbidden by the statute. The rights of infants are peculiarly objects of the watchful care and protection of the courts and they cannot permit a salutary provision of the statute, made especially to secure their interests, to be disregarded. The plain purpose of the enactment
was to make these trust estates and trust interests indestructible and absolutely inalienable during the existence of the trust, and if they could be rendered alienable by the order of the court, the whole scheme of the statute would be greatly impaired and its purpose thwarted. These views have frequently found expression in this court in similar cases, and they are too firmly established to permit any exception or distinction that can be made in the case at bar to prevail. (Forbes v. Halsey,26 N.Y. 53; Douglas v. Cruger, 80 id. 15; In re Roe,
119 id. 509.) The wisdom and purpose of the testator in revoking the power of sale in the codicil is illustrated in the language of Judge FINCH in the case last cited: "The land will not run away or burn up or be stolen, and will be sure to await the infant when the period of possession arrives." The will created a valid trust, under which each child, on the death of the testator, had a vested remainder in fee in his share, expectant upon the termination of the trust, and, subject to the execution of the trust, they held as tenants in common. (Stevenson v. Lesley,70 N.Y. 512; Van Brunt v. Van Brunt, 111 id. 178;Vanderpoel v. Loew, 112 id. 167.) Upon the termination of the trust, title to his share vested in each child, without any conveyance by the trustees, and hence the plaintiffs, on attaining their majority, were, and now are, legally seized of the property. (Watkins v. Reynolds, 123 N.Y. 211.)
That the partition action, judgment and sale were plainly in contravention of the provisions of the will creating the trust and of the statute, is a proposition that admits of no controversy. (Rogers v. Dill, 6 Hill, 415.) The learned counsel for the defendant does not seriously question this position, but attempts to meet the difficulty in another way. His argument in substance is that, conceding all that has been said, or can be said, against the power to sell the real estate of infants contrary to the provisions of the will, yet the court has in fact decreed the sale, and hence must have decided in the partition action that such sale was not contrary to the provisions of the will or in contravention of the trust or the statute, and that
this decision and judgment cannot be attacked collaterally. But this contention obviously ignores the real nature of the question now under consideration. The former judgment is not pleaded as a bar to the present action or as conclusive evidence of any fact in issue, but as the authority for the sale and the foundation of the defendant's title. The question therefore, is not what has been decided by the court in which the sale was ordered, but what it had jurisdiction and power to do. When a party interposes the judgment of a court as the foundation of his title or claim, the want of jurisdiction in the court to render the judgment may always be set up against it when sought to be enforced, or when any benefit is claimed under it by the party in whose favor it was rendered, or by any one claiming under him. It is always open to the party against whom the judgment is offered to prove the want of jurisdiction in the court, even though such proof contradicts recitals in the record. In case of judgments recovered in the courts of other states which are to be given full faith and credit here under the Federal Constitution, the record may be impeached for want of jurisdiction, even by extrinsic evidence, and the same is true with respect to domestic judgments. Whenever, therefore, a judgment is interposed as a claim or the foundation of a title, the party against whom it is offered may show that it is void, and, therefore, that the supposed record is not in truth a record at all. No court or judicial officer can acquire jurisdiction by the mere assertion of it, or by erroneously alleging the existence of facts upon which jurisdiction depends. If the court had no jurisdiction, it had no power to make a record, and the supposed record is not in truth entitled to the character of a judgment. These propositions have been settled in this court once for all in the case ofFerguson v. Crawford (70 N.Y. 253). In the opinion by Judge RAPALLO, which covers the whole field of discussion, the positions stated are sustained by a weight of argument and a wealth of illustration which leaves nothing further to be said on the subject. The statement of Judge ANDREWS in the case ofRisley v. Phenix Bank (83 N.Y. 337) may also be
referred to, where it is said: "But a court authorized by statute to entertain jurisdiction in a particular case only, if it undertakes to exercise the power and jurisdiction conferred in a case to which the statute has no application, acquires no jurisdiction, and its judgment is a nullity, and will so be treated when it comes in question, either directly or collaterally." These cases have been repeatedly approved and followed in this court as a correct expression of the law on the question of jurisdiction. (Craig v. Town of Andes, 93 N.Y. 405;People ex rel. Frey v. Warden, etc., 100 id. 24; C.C.Bank v. Purent, 134 id. 530; Smith v. Reid, Id. 571;Beardslee v. Dolge, 143 id. 165; Vilas v. P. M.R.R.Co., 123 id. 455; Bogart v. D., L. W.R.R. Co.,
145 id. 287; People v. Gardner, 144 id. 126; Losey v. Stanley,
147 id. 560; Warren v. Union Bank, 157 id. 259.)
The want of jurisdiction to render the particular judgment may always be asserted and raised directly or collaterally, either from an inspection of the record itself when offered in behalf of the party claiming under it, or upon extraneous proof, which is always admissible for that purpose. There is but one solitary exception to this rule, and that is in a case where jurisdiction depends on a fact that is litigated in a suit and is adjudged in favor of the party who avers jurisdiction. Then the question of jurisdiction is judicially decided, and the judgment record is conclusive on that question until set aside or reversed by a direct proceeding. (Ferguson v. Crawford, supra, p. 265.) The scope and nature of this exception to the general rule may be illustrated by a very familiar case. It is provided by statute that a judge shall not sit in a case if he is related to either of the parties within the sixth degree. (Code Civ. Pro. § 46;People v. Connor, 142 N.Y. 130.) If such relationship exists in fact the judge is incapable of acting as a member of the court. But whether the relationship exists involves an inquiry as to the facts, and if there is a conflict in the evidence relating to that question, the determination is of such a character that the question of jurisdiction cannot be raised collaterally, but the error in the judgment, if
any, must be corrected by direct review. In the case at bar, however, there was no question of fact by means of which the court in the partition action could have obtained jurisdiction. The will of the testator spoke for itself, and if the court decided that it permitted a sale of the realty, under the circumstances, it merely passed upon a question of law erroneously. While a court may acquire jurisdiction sufficient to exempt its judgment from collateral attack by deciding a disputed question of fact erroneously, it has never been held that it can acquire jurisdiction for any purpose by an error of law. It could not in this case have rendered a judgment on the ground that a sale of the land was permitted by the will, and if it did, the question of jurisdiction still remained open to be questioned in any future action, either directly or collaterally. If it were otherwise, it would follow that in every case where infants' real property has been sold under the direction of the court, whether with or without jurisdiction, it could be said that the court had decided in the particular action or proceeding that it had jurisdiction, and this decision would not be open to any collateral attack, but there are numerous decisions of this court that hold just the contrary. (Ellwood v. Northrup, 106 N.Y. 172;In re Valentine, 72 N.Y. 184; Battell v. Torrey,
65 id. 294; Losey v. Stanley, supra; Warren v. Union Bank,supra.) It is obvious that, under any other rule, a court could acquire jurisdiction of the person or the subject-matter by the mere assertion of it, or by an erroneous decision upon the law that it has it in any particular case. It seems to me, therefore, that we cannot avoid the conclusion that the judgment and sale in the partition action of the real estate in controversy were forbidden by the terms of the will and by the mandate of the statute; that the court could acquire no jurisdiction to direct the sale, and that the plaintiffs, deriving their title directly from the will, may assail this judgment and sale, either directly or collaterally, as void for want of jurisdiction. A court of equity has no inherent or original jurisdiction to direct the sale of the lands of infants. Its jurisdiction in that respect is derived wholly from the statute, and it
is elementary law that unless every substantial provision of the statute is observed and complied with the sale will be void. A sale made in violation of an express prohibition of the statute is certainly in no better position, when attacked in any form, than one which is made merely without observing some affirmative provision of the procedure enacted for the purpose of securing the rights of the infant.
But there is another question in the case which is equally fatal to the defendant's claim of title. It does not depend upon the jurisdiction of the court to render the judgment, but upon another statutory provision concerning judicial sales of the real estate of infants. We have seen that the mother of the plaintiffs, who was their general guardian as well as their guardian ad litem in the action, became the purchaser of this farm at the sale. At that time the following statutory provision was in force: "Nor shall any guardian of any infant party in such suit, purchase, or be interested in the purchase of, any lands, being the subject of such suit, except for the benefit of or in behalf of such infant; and all sales contrary to the provisions of this section shall be void." (2 R.S., p. 326, § 58.) That provision has since been somewhat enlarged and made still more stringent by section 1679 of the Code, which reads as follows: "A commissioner, or other officer, making a sale, as prescribed in this title, or guardian of an infant party to the action, shall not, nor shall any person, for his benefit, directly or indirectly, purchase, or be interested in the purchase of, any of the property sold; except that a guardian may, where he is lawfully authorized so to do, purchase for the benefit or in behalf of his ward. The violation of this section is a misdemeanor; and a purchase, made contrary to this section, is void." The statute is such a plain prohibition against the purchase by a guardian of the lands of his ward at a judicial sale that it is not open to construction. (Forbes v. Halsey,26 N.Y. 53; Terwilliger v. Brown, 44 id. 237.) The learned counsel for the defendant attempts to avoid the effect of this statute by suggesting that the plaintiffs did not prove at the trial that the guardian did not make
the purchase for the infants' benefit. But it is obvious that this contention cannot prevail. The purchase by the guardian in her own name is presumed to be void, and to be rendered valid it must be shown to have been for the benefit of the infants. (Fleming v. People, 27 N.Y. 329.) The burden was on the defendant to show that the purchase was for the benefit of the infants, if such was the fact. (Baker v. Brintnall, 52 Barb. 188, 193; Knapp v. O'Neill, 46 Hun, 317.) The plaintiffs cannot be required to prove the purpose which was in the mind of the guardian when she took a conveyance of the lands to herself. But the defendant's answer, which has already been quoted, relieves the question from any doubt on this point. We have seen that he alleges a purchase by the guardian in her own name, followed by possession on her part under a claim of title exclusive of any other right. So that, upon the allegations of the defendant's answer, it is clear that there could not have been any purchase for the benefit of the infants. Unless the deed under which the guardian took title ran to her in her capacity as guardian, or unless there was some provision in the body of the conveyance showing that the purchase was for the benefit of the infants, it must be assumed that the title was taken by the guardian in her individual capacity.
It is suggested that the confirmation of the report of sale rendered the purchase valid. But an order of the court cannot validate what a statute expressly forbids, and so it has been held. (Gallatian v. Cunningham, 8 Cowen, 361; Terwilliger
v. Brown, supra.) When the defendant purchased the land in controversy the judgment in the partition action and the conveyance to the guardian which followed were all matters of record. He is chargeable with notice of any defects in the sale, and cannot now assume the position of a bona fide purchaser without notice.
The plaintiffs, therefore, established their title to the premises described in the complaint. Since the defendant claimed absolute title to the whole of the premises and denied any right or title in the plaintiffs, it was not necessary for the latter
to prove that they had been ousted as tenants in common. The defendant did not admit that they were co-owners, but denied it, and, therefore, proof of ouster was not necessary. But if it was necessary, it was furnished by the defendant's evidence that he claimed title in himself under a deed from a hostile source, which he set up in defense of the plaintiffs' contention. (Siglar v. Van Riper, 10 Wend. 414; Clark v. Crego, 47 Barb. 599.)
For these reasons I think the order must be affirmed.