Goodrich, P. J.:
In an action for the foreclosure of a mortgage of real estate in the county of Kings, the court, in the final judgment, appointed a referee to sell the premises. The referee sold the premises to a purchaser who assigned his bid to Henry Jacobs, the appellant in this proceeding. The appellant refused to complete the sale on the [503] ground that it had been conducted by a referee who had been appointed by the court without the consent of any of the parties to the action, including four infant defendants, and made a motion at Special Term to be relieved from the purchase and to direct the referee to refund' to him his deposit of ten per cent upon the bid, the auctioneer’s fees, etc. The court denied the motion and the assignee appeals.
It is well settled that the court will not compel a purchaser at a judicial sale to take a title which is not marketable, and in Shriver v. Shriver (86 N. Y. 575, 584) it was said: “Asa general rule a title which is open to judicial doubt is not a marketable title.” The question is whether this title is marketable. " The moving papers alleged a refusal of two title companies in Brooklyn to pass such titles, but these allegations were denied in the affidavits made by the officers of these companies. It is true that the counsel for the appellant, in an affidavit, declares that in his opinion the title is defective, and the opposing affidavits present opinions that it is not defective, but these are merely opinions and cannot be permitted to countervail the law.
Chapter 167 of the Laws of 1889 (Amdg. Laws of 1876, chap. 439) provides as follows : “ § 1. All sales of real estate made in the county of Kings under judgment or decree of any court, except sales in actions of partition, and where the sheriff of said county is a party, and excepting where all the parties to the suit, both those who do and these* who do not appear, shall execute and file a written stipulation, in due form consenting to a sale by a referee, shall be made by the sheriff of the said county of Kings.”
The equity of redemption in the premises was in four infants .who were made defendants in the action and for whom a guardian ad litem was appointed therein. The guardian appeared and answered, but no consent to the appointment of a referee was made or filed by him or by any of the parties to the suit. A copy ■of the judgment was served upon the guardian and he attended the sale and has made no objection thereto nor any application to the •court to correct the matter before us.
At common law, the king was considered to have the care, of all persons unable to care for themselves. This care was exercised by [504] the Court of Chancery through a guardian-appointed by it, whose functions were those of the tutor or curator of the civil law; the former of whom had charge of the maintenance and education of the infant, and the latter the care of his estate. (9 Ency. Pl. & Pr. 890.) This chancery jurisdiction was devolved upon our Supreme Court, which is the guardian of infants. It delegates to a guardian ■ ad Utem the duty of protecting-the rights of the infant in a particular litigation.
In Knickerbacker v. De Freest (2 Paige, 304) it was said that although it is the duty of the court to protect, the rights of infants, when they are properly before it, so that they may be seen..and-fairly understood, yet it is the special duty of the guardian ad litem, of infant defendants to bring those rights directly under the. consideration of- the chancellor for his decision thereon.: In .the present case no such duty -was performed by the -guardian. ;
In Christ v. Chetwood (1 Misc. Rep. 418; 49 N. Y. St. Repr. 452) it was said that “A guardian, ad litem has no general authority to bind the infant or his estate, but the authority óf such a guardian is limited to the action in which he is appointed and to the subject-matter thereof, and even here his authority is very limited indeed, for he is authorized to prosecute, not to settle; he can settle only by authority of the court; his admissions will not bind the infant party.”
Certainly it is better practice for the guardian not to consent to the appointment of a specific referee, but to lay the matter before the -court and obtain its instructions. And yet it is difficult to see what possible harm or -injury came to the infants by reason of liis failure to take one course or the other in the case at bar. A referee is a judicial officer and-must be presumed to have fulfilled his duty-, faithfully, until the contrary appears. We must assume that the court knew that there were infant defendantsthat they owned the equity of redemption; .that a guardian ad litem had been appointed for them ; that the guardian had appeared and. answered; that he had not consented to the sale by a referee; that the order for sale by a referee was made after careful consideration of the interests of the infants and that their interests would be as well protected by a referee as by the sheriff. ■ No prejudice to those interests is alleged in the moving papers.
[505] The respondent contends that at most the provision of the statute is directory, and that the appointment of the referee is a mere irregularity which may be disregarded; and in the light of authority we reach the conclusion that the judgment directing a sale by a referee is a mere irregularity which does not invalidate the title proffered by the referee.
In Abbott v. Curran (98 N. Y. 665), upon the consents of all the parties appearing in the action, save one who was an absentee, the court directed a sale in foreclosure to be made by a referee, although the statute of 1876 (Chap. 439), which was then in force, required that such sales should be made by the sheriff unless all the parties appearing consented to a sale by a referee. The court, on a motion to compel a purchaser to complete his purchase, held that this was an irregularity which did not render the sale void, and that at most it was an error which could be corrected by any party to the record by application to the court, or by appeal from the judgment, but that a sale made under such circumstances was not invalid because made by a referee instead of "a sheriff.
.Abbott v. Curran has been cited and followed in several cases, to three of which we advert. Bechstein v. Schultz (45 Hun, 191; affd., 12Ó 27. T. 168) was an action to enforce specific performance of a contract for the sale of real estate. Objection was made that the title was defective, because in an action for the foreclosure of a mortgage there was an omission to publish a notice of an adjournment of the sale, as expressly required by section 1678 of the Code of Civil Procedure. It was held (Mr. Justice Willard Bartlett writing) that this omission was an irregularity which did' not vitiate the sale. In the Court of Appeals, however, it was said that the irregularity was such as “ might have afforded good ground for vacating and setting aside the sale made, but one which the parties were competent to waive, and which, from the subsequent proceedings, we must assume they did waive.”
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Goodrich, P. J.:
In an action for the foreclosure of a mortgage of real estate in the county of Kings, the court, in the final judgment, appointed a referee to sell the premises. The referee sold the premises to a purchaser who assigned his bid to Henry Jacobs, the appellant in this proceeding. The appellant refused to complete the sale on the [503] ground that it had been conducted by a referee who had been appointed by the court without the consent of any of the parties to the action, including four infant defendants, and made a motion at Special Term to be relieved from the purchase and to direct the referee to refund' to him his deposit of ten per cent upon the bid, the auctioneer’s fees, etc. The court denied the motion and the assignee appeals.
It is well settled that the court will not compel a purchaser at a judicial sale to take a title which is not marketable, and in Shriver v. Shriver (86 N. Y. 575, 584) it was said: “Asa general rule a title which is open to judicial doubt is not a marketable title.” The question is whether this title is marketable. " The moving papers alleged a refusal of two title companies in Brooklyn to pass such titles, but these allegations were denied in the affidavits made by the officers of these companies. It is true that the counsel for the appellant, in an affidavit, declares that in his opinion the title is defective, and the opposing affidavits present opinions that it is not defective, but these are merely opinions and cannot be permitted to countervail the law.
Chapter 167 of the Laws of 1889 (Amdg. Laws of 1876, chap. 439) provides as follows : “ § 1. All sales of real estate made in the county of Kings under judgment or decree of any court, except sales in actions of partition, and where the sheriff of said county is a party, and excepting where all the parties to the suit, both those who do and these* who do not appear, shall execute and file a written stipulation, in due form consenting to a sale by a referee, shall be made by the sheriff of the said county of Kings.”
The equity of redemption in the premises was in four infants .who were made defendants in the action and for whom a guardian ad litem was appointed therein. The guardian appeared and answered, but no consent to the appointment of a referee was made or filed by him or by any of the parties to the suit. A copy ■of the judgment was served upon the guardian and he attended the sale and has made no objection thereto nor any application to the •court to correct the matter before us.
At common law, the king was considered to have the care, of all persons unable to care for themselves. This care was exercised by [504] the Court of Chancery through a guardian-appointed by it, whose functions were those of the tutor or curator of the civil law; the former of whom had charge of the maintenance and education of the infant, and the latter the care of his estate. (9 Ency. Pl. & Pr. 890.) This chancery jurisdiction was devolved upon our Supreme Court, which is the guardian of infants. It delegates to a guardian ■ ad Utem the duty of protecting-the rights of the infant in a particular litigation.
In Knickerbacker v. De Freest (2 Paige, 304) it was said that although it is the duty of the court to protect, the rights of infants, when they are properly before it, so that they may be seen..and-fairly understood, yet it is the special duty of the guardian ad litem, of infant defendants to bring those rights directly under the. consideration of- the chancellor for his decision thereon.: In .the present case no such duty -was performed by the -guardian. ;
In Christ v. Chetwood (1 Misc. Rep. 418; 49 N. Y. St. Repr. 452) it was said that “A guardian, ad litem has no general authority to bind the infant or his estate, but the authority óf such a guardian is limited to the action in which he is appointed and to the subject-matter thereof, and even here his authority is very limited indeed, for he is authorized to prosecute, not to settle; he can settle only by authority of the court; his admissions will not bind the infant party.”
Certainly it is better practice for the guardian not to consent to the appointment of a specific referee, but to lay the matter before the -court and obtain its instructions. And yet it is difficult to see what possible harm or -injury came to the infants by reason of liis failure to take one course or the other in the case at bar. A referee is a judicial officer and-must be presumed to have fulfilled his duty-, faithfully, until the contrary appears. We must assume that the court knew that there were infant defendantsthat they owned the equity of redemption; .that a guardian ad litem had been appointed for them ; that the guardian had appeared and. answered; that he had not consented to the sale by a referee; that the order for sale by a referee was made after careful consideration of the interests of the infants and that their interests would be as well protected by a referee as by the sheriff. ■ No prejudice to those interests is alleged in the moving papers.
[505] The respondent contends that at most the provision of the statute is directory, and that the appointment of the referee is a mere irregularity which may be disregarded; and in the light of authority we reach the conclusion that the judgment directing a sale by a referee is a mere irregularity which does not invalidate the title proffered by the referee.
In Abbott v. Curran (98 N. Y. 665), upon the consents of all the parties appearing in the action, save one who was an absentee, the court directed a sale in foreclosure to be made by a referee, although the statute of 1876 (Chap. 439), which was then in force, required that such sales should be made by the sheriff unless all the parties appearing consented to a sale by a referee. The court, on a motion to compel a purchaser to complete his purchase, held that this was an irregularity which did not render the sale void, and that at most it was an error which could be corrected by any party to the record by application to the court, or by appeal from the judgment, but that a sale made under such circumstances was not invalid because made by a referee instead of "a sheriff.
.Abbott v. Curran has been cited and followed in several cases, to three of which we advert. Bechstein v. Schultz (45 Hun, 191; affd., 12Ó 27. T. 168) was an action to enforce specific performance of a contract for the sale of real estate. Objection was made that the title was defective, because in an action for the foreclosure of a mortgage there was an omission to publish a notice of an adjournment of the sale, as expressly required by section 1678 of the Code of Civil Procedure. It was held (Mr. Justice Willard Bartlett writing) that this omission was an irregularity which did' not vitiate the sale. In the Court of Appeals, however, it was said that the irregularity was such as “ might have afforded good ground for vacating and setting aside the sale made, but one which the parties were competent to waive, and which, from the subsequent proceedings, we must assume they did waive.”
Reed v. Reed (46 Hun, 212; affd., 107 N. Y. 545) was an action for partition, brought by a tenant by the curtesy, and the court held that, although the plaintiff was not one of the parties who, by section 1538 of the Code of Civil Procedure, could institute an action in partition, yet as all the parties in interest were before the court, the final judgment confirming the sale was conclusive and [506] legalized the sale. In this case there were infant defendants^ and the court held that'if the objection to the plaintiff’s right to sue had been raised by the guardian ad litem of the infant defendants, it-would have resulted in the dismissal of the action, and if any interests of the infants, had been prejudiced by the failure of the guardian to raise the objection, their remedy would be against him and the sureties on his bond for Omission of duty.
In Woodhull v. Little (102 N. Y. 165) it was held that the final order of confirmation of sale in a partition suit has the force' and effect of a judgment which binds the parties, where there is complete jurisdiction, whatever errors or irregularities may have preceded it, even where there has been an omission from the referee’s advertisement of sale of a portion of the lands, where upon motion made on due notice to all parties interested the sale was confirmed, and that the irregularity was not a defect in the title. This ease is especially important as it restates the doctrine of Abbott v. Ourran.
The respondent contends also that if the statute is mandatory it is unconstitutional, as attempting to limit the jurisdiction of the Supreme Court, as recognized by article' 6, section 6, of the Constitution of 1846, which was in force when the statute of. 1876 was passed.
By reason of the views which we have already expressed, it' is unnecóssary to decide this question.
As .no rights of the infants are alleged to have been prejudiced by the appointment of a referee without the consent of their guardian ad litem, whb was present at the sale and has made no objection thereto, and as the court had acquired jurisdiction of the infants and may be assumed to have considered their interests when the order was made, we conclude that the direction for the sale of the premises by a referee was a mere irregularity which does not render the title “ open to judicial doubt.”
Eor these reasons the order should be affirmed.
Bartlett, J'., concurred in separate opinion; Woodward, J., concurred in result; Hirschberg, J., dissented and read for reversal; Jenks, J.,. taking no part..