Ward, J.:
An elaborate statement of facts seemed to be necessary to fully present the interesting and important question which we must consider upon this review.
The judgment appealed from assumes, in a collateral proceeding, in an independent, original action.to overturn and declare void the acts and decisions, orders and determination of the Supreme Court in a proceeding for the sale of infants’ real estate, and we must consider under what circumstances this may be done.
The Supreme Court has no inherent jurisdiction to direct the sale of an infant’s real, estate; but its jurisdiction rests upon the statute. (Code Civ. Proc. §§ 2348-2364; Losey v. Stanley, 147 N. Y. 570, [15]*15and cases cited.) The proceedings assailed in this case show that the petition upon which they are based gave the court jurisdiction. It was framed under section 2348 of the Code, which provides that real property belonging to an infant may be mortgaged as prescribed in the following subdivisions:
“ 1. Where the personal property and the income of the real property of the infant * * * are, together, insufficient for the payment of his debts, or for the maintenance and necessary education of himself and his family.
“ 2. Where the interests of the infant * * * require, or will be substantially promoted by such disposition on account-of the real property, * * * being exposed to waste or dilapidation, or being wholly unproductive, or for the purpose.of raising funds to preserve or to improve the same, or for other peculiar reasons or on account of other peculiar circumstances.”
By section 2349 it is provided that the application shall he made, by a petition of a general guardian or the guardian of the property of the infant; and that, if the infant is of the age of fourteen years, he must join in the petition.
The jurisdiction given by this petition is not questioned upon this appeal, nor was it upon the trial by the learned trial judge, who states.in his opinion that the petition did give jurisdiction ; but it is claimed by the learned counsel for the respondents that matters subsequent to the petition invalidated the proceedings, and that fraud was established sufficient to justify the action of the trial court in this case. It is claimed that the proceedings were void, because Danforth was the attorney for the bank at the time that he was appointed special guardian. It is not claimed that any act or omission of his was detrimental to the plaintiff in the proceedings to mortgage the real estate or that he is not responsible, or that his bond was insufficient, or that in the particular matter in which he acted as such . guardian, he acted in the double capacity of special guardian and attorney for the bank. The fair inference from the finding of the court is that- he was generally the attorney for the bank, and fraud on his part will not be presumed from the bare statement that he was such attorney; and while such an appointment was perhaps unwise and subject to criticism, it was not - sufficient to oust the court of jurisdiction.
[16]*16In Battell v. Torrey (65 N. Y. 296) the grandfather of the infant petitioned for the appointment of himself as the special guardian for the infant, for the purpose of selling or mortgaging the infant’s land, although he was also, as he claimed, the creditor of the infant, and his claim against the estate of the infant grew out of advances' made and liabilities incurred by him, not as a guardian or by any authority whatever, but as a volunteer in defending a litigation over the estate of the infant; and the sale or mortgage was asked for to pay for such advances. This state of facts was urged as a reason for vitiating the proceeding, but the court said that while this state of things required “ the exercise of uncommon care on the part of the court in supervising the proceedings,” it did not raise a jurisdictional question; that the court in that regard acted judicially, and if it decided erroneously or made a mistake as to any other matter submitted to its consideration not involving its jurisdiction to do or-omit to do or authorized to be done, its action could not be questioned except by appeal or in a direct proceeding to set aside or vacate what had been erroneously done.
Section 2360 of the Code provides that from .the time of the filing of the petition ‘‘ the infant is considered a ward of the court' with respect to that real property or interest and the income and proceeds thereof.” So that the court exercises constant supervision over every step in the proceeding. Through its own officer it takes the proof, and if a case is made out by competent proof the special guardian is directed to contract; that contract is ,submitted to the court under the oath of the guardian, which the court must approve before it can direct a conveyance. The proceedings are not then ended; when a conveyance is made either by deed or mortgage, a final report is made to the court and the sale must be confirmed.
The proceedings are also objected to because the report of the contract made by the special guardian and under oath establishes that the contract made by the purchaser was an oral one, and we are cited to a case (Hardy v. Andrews, 13 Civ. Proc. Rep. 413-417), a Special Term decision, in which the court intimated that, under section 2356 of the Code of Civil Procedure, the agreement should be in writing,, although it was not necessary under the Revised Statutes that it should be; and as the proceeding that the court was then considering was under the Revised Statutes, the intimation referred to, while [17]*17entitled to great respect, was obiter. But the court did not hold there that a verbal contract consummated by a conveyance and all of the provisions of the contract carried out through the orders of the court, would. avoid the proceedings or divest the court of jurisdiction, and we regard it as a mere irregularity.
But collusion is charged between the officers of the bank and the-general guardian, in that it was substantially .agreed in advance that the proceedings were to be taken to mortgage the plaintiff’s real estate for the payment of the debt of the bank, the claim being that there was no valid debt against the plaintiff, but that it was against the guardian, the defendant Stevens, individually; but bad faith is not charged, and the fraud that will divest jurisdiction cannot exist without it.
The learned counsel for the respondents in his able brief makes this statement: “ In discussing the question whether the necessary result of the facts alleged in the complaint and proved or admitted upon the trial was to work a grave injustice and palpable fraud upon the infant, it is unnecessary for the plaintiff’s counsel to charge the general guardian of the officers of the bank or any of the persons connected with the proceeding in question with any sinister purpose or actual fraudulent intent. It may well be, and judging from their reputation it probably is, the fact that all fully believed that the infant actually owed the debt, and that they were actuated by no purpose other than to secure the bank for a debt which it was manifestly believed the infant owed.”
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Ward, J.:
An elaborate statement of facts seemed to be necessary to fully present the interesting and important question which we must consider upon this review.
The judgment appealed from assumes, in a collateral proceeding, in an independent, original action.to overturn and declare void the acts and decisions, orders and determination of the Supreme Court in a proceeding for the sale of infants’ real estate, and we must consider under what circumstances this may be done.
The Supreme Court has no inherent jurisdiction to direct the sale of an infant’s real, estate; but its jurisdiction rests upon the statute. (Code Civ. Proc. §§ 2348-2364; Losey v. Stanley, 147 N. Y. 570, [15]*15and cases cited.) The proceedings assailed in this case show that the petition upon which they are based gave the court jurisdiction. It was framed under section 2348 of the Code, which provides that real property belonging to an infant may be mortgaged as prescribed in the following subdivisions:
“ 1. Where the personal property and the income of the real property of the infant * * * are, together, insufficient for the payment of his debts, or for the maintenance and necessary education of himself and his family.
“ 2. Where the interests of the infant * * * require, or will be substantially promoted by such disposition on account-of the real property, * * * being exposed to waste or dilapidation, or being wholly unproductive, or for the purpose.of raising funds to preserve or to improve the same, or for other peculiar reasons or on account of other peculiar circumstances.”
By section 2349 it is provided that the application shall he made, by a petition of a general guardian or the guardian of the property of the infant; and that, if the infant is of the age of fourteen years, he must join in the petition.
The jurisdiction given by this petition is not questioned upon this appeal, nor was it upon the trial by the learned trial judge, who states.in his opinion that the petition did give jurisdiction ; but it is claimed by the learned counsel for the respondents that matters subsequent to the petition invalidated the proceedings, and that fraud was established sufficient to justify the action of the trial court in this case. It is claimed that the proceedings were void, because Danforth was the attorney for the bank at the time that he was appointed special guardian. It is not claimed that any act or omission of his was detrimental to the plaintiff in the proceedings to mortgage the real estate or that he is not responsible, or that his bond was insufficient, or that in the particular matter in which he acted as such . guardian, he acted in the double capacity of special guardian and attorney for the bank. The fair inference from the finding of the court is that- he was generally the attorney for the bank, and fraud on his part will not be presumed from the bare statement that he was such attorney; and while such an appointment was perhaps unwise and subject to criticism, it was not - sufficient to oust the court of jurisdiction.
[16]*16In Battell v. Torrey (65 N. Y. 296) the grandfather of the infant petitioned for the appointment of himself as the special guardian for the infant, for the purpose of selling or mortgaging the infant’s land, although he was also, as he claimed, the creditor of the infant, and his claim against the estate of the infant grew out of advances' made and liabilities incurred by him, not as a guardian or by any authority whatever, but as a volunteer in defending a litigation over the estate of the infant; and the sale or mortgage was asked for to pay for such advances. This state of facts was urged as a reason for vitiating the proceeding, but the court said that while this state of things required “ the exercise of uncommon care on the part of the court in supervising the proceedings,” it did not raise a jurisdictional question; that the court in that regard acted judicially, and if it decided erroneously or made a mistake as to any other matter submitted to its consideration not involving its jurisdiction to do or-omit to do or authorized to be done, its action could not be questioned except by appeal or in a direct proceeding to set aside or vacate what had been erroneously done.
Section 2360 of the Code provides that from .the time of the filing of the petition ‘‘ the infant is considered a ward of the court' with respect to that real property or interest and the income and proceeds thereof.” So that the court exercises constant supervision over every step in the proceeding. Through its own officer it takes the proof, and if a case is made out by competent proof the special guardian is directed to contract; that contract is ,submitted to the court under the oath of the guardian, which the court must approve before it can direct a conveyance. The proceedings are not then ended; when a conveyance is made either by deed or mortgage, a final report is made to the court and the sale must be confirmed.
The proceedings are also objected to because the report of the contract made by the special guardian and under oath establishes that the contract made by the purchaser was an oral one, and we are cited to a case (Hardy v. Andrews, 13 Civ. Proc. Rep. 413-417), a Special Term decision, in which the court intimated that, under section 2356 of the Code of Civil Procedure, the agreement should be in writing,, although it was not necessary under the Revised Statutes that it should be; and as the proceeding that the court was then considering was under the Revised Statutes, the intimation referred to, while [17]*17entitled to great respect, was obiter. But the court did not hold there that a verbal contract consummated by a conveyance and all of the provisions of the contract carried out through the orders of the court, would. avoid the proceedings or divest the court of jurisdiction, and we regard it as a mere irregularity.
But collusion is charged between the officers of the bank and the-general guardian, in that it was substantially .agreed in advance that the proceedings were to be taken to mortgage the plaintiff’s real estate for the payment of the debt of the bank, the claim being that there was no valid debt against the plaintiff, but that it was against the guardian, the defendant Stevens, individually; but bad faith is not charged, and the fraud that will divest jurisdiction cannot exist without it.
The learned counsel for the respondents in his able brief makes this statement: “ In discussing the question whether the necessary result of the facts alleged in the complaint and proved or admitted upon the trial was to work a grave injustice and palpable fraud upon the infant, it is unnecessary for the plaintiff’s counsel to charge the general guardian of the officers of the bank or any of the persons connected with the proceeding in question with any sinister purpose or actual fraudulent intent. It may well be, and judging from their reputation it probably is, the fact that all fully believed that the infant actually owed the debt, and that they were actuated by no purpose other than to secure the bank for a debt which it was manifestly believed the infant owed.”
The question was fairly before the Supreme Court, when the proceedings to mortgage the real estate were considered and disposed of, whether this charge of collusion was true and whether the bank had not a just and equitable claim upon the plaintiff and his property that could be enforced in that proceeding under the broad grant of power given to the court by section 2348 of the Code. There, was no. dispute that the bank advanced the money to the. guardian, or that the guardian used it in the business and concerning the property of the plaintiff, or that the guardian kept it separate from his own, or that the parties believed that the best interests of the infant were subserved by the transaction. We must remember that these transactions occurred at a time of great business depres[18]*18sion when .very little property was being operated at a profit; when the infant was too young to he consulted; when he w.as actually living in a foreign country, and- when the delicate business of the guardian required him to exercise his best judgment in the situation in which he was placed. There is no suggestion that the guardian 'in any manner profited out of this business. It does appear that portions of this money were used to relieve the real estate of the infant from incumbrances, taxes, interest and charges. There was not an accounting by the guardian before the Supreme Court in either proceeding, nor is there any suggestion but what the guardian is responsible and his bond amply sufficient to cover any losses that may come to this infant on account of mismanagement by the guardian of his property or any loss growing out of his negligence.
The conclusion of the Supreme Court was that in equity the plaintiff’s land should be charged with this debt, and in the absence of fraud that decision was res adjudicata and conclusive, and cannot be interfered with in this action.
Actual fraud is not claimed, but from the transaction constructive fraud is alleged because the court decided wrong upon a question of fact. This is not sufficient, even on a bill for review. ( Webb v. Pell, 3 Paige, 368.)
Judge Andrews said in Hyland v. Baxter (98 N. Y. 614): “ The ' principle of res adgudicata supports the conclusiveness of a. judgment when the same matter is subsequently called in question between the parties in a collateral action, whether the question was-rightly or wrongly decided, on the principle of quieting contentions and securing the orderly administration of justice.”
In Ross v. Wood (70 N. Y. 10, 11) Judge Allen" said: “ The fraud which will justify equitable interference in setting aside judgments and decrees must he actual and positive and not merely constructive. It must be that which occurs in the very concoction or procuring of the judgment or decree and something not known to the opposite party at the time, and for not knowing which he is not chargeable with negligence.”
And again he said (at p. 11): “ Equity will not take cognizance. on the same grounds of the very point which another court of competent authority in the case has considered and decided.”
And again : “ And the rule should not he- relaxed to retry ques[19]*19tions deliberately tried and adjudicated by court; of equity having concurrent jurisdiction of the subject-matter.”
Section 2358 of the Code of Civil Procedure provides: “ A * * * mortgage * * * made in good faith as prescribed in this title * * * upon an application in behalf of the infant * * * has the same validity and effect as if executed by the person in whose behalf it was executed and as if the infant was of full age.”
The rule referred to is sustained by the following cases : Smith v. Nelson (62 N. Y. 286); Stilwell v. Carpenter (59 id. 423); Ward v. Town of Southfield (102 id. 287); The Mayor, etc., v. Brady (115 id. 599, and cases cited).
It is a principle well established in equity jurisprudence that a trustee (and it is held that a guardian is such) who, acting in good faith, makes expenditures of the funds of the cestui que trust for the benefit of the property of the cestui que trust, or to pay off incumbrances or taxes upon the property which, if not paid, might consume the property bhhimbered; or, if he does any act in advance of an order of the court which the court would have originally directed, the transaction will be sustained as in the interest of the cestui que trust. (Noyes v. Blakeman, 6 N. Y. 567; New v. Nicoll, 73 id. 127, 131.) At the latter page the court says: “When a trustee is authorized to make an expenditure, and lie has no trust funds, and the expenditure is necessary for the protection, reparation or safety of the trust estate, and he is not willing to make himself personally liable, he may, by express agreement, make the expenditure a charge "upon the trust estate. In such a case he could himself advance the money to make the expenditure, and he would have a lien upon the. trust estate, and he can, by express contract, transfer this lien to any other party who may, upon the faith of the trust estate, make the expenditure.”
This the guardian of the plaintiff .attempted to do through his arrangement with the bank.
These propositions are amply sustained by Randall v. Dusenbury (39 N. Y. Super. Ct. 174; affd., 63 N. Y. 645) and by Perry on Trusts (§ 476), where that author says : “ But there are circumstances . where a trustee must exercise the discretionary powers of an absolute owner, otherwise great loss might happen to the estate. The exigen[20]*20cies of the moment may demand immediate action. The cestuis que. trust may he numerous or scattered or under disability. * * *
The alternative o.f applying to the court may be attended with' considerable or disproportionate expense, and perhaps delay, so that the opportunity is gone and lost forever. It is, therefore, evident that it is for the interest of the cestuis que trust that the trustee should have a reasonably discretionary power to be exercised in emergencies, though no such power is given in the instrument of trust. And so it is a rule of equity that a trustee may safely do that without a decree of. the court, which the court, on a case made, would order or .decree him to do.” As to whether the plaintiff (an infant) was bound by the act of his guardian, see Thompson v. Maxwell Land Grant & Ry. Co. (168 U. S. 451).
It is not necessary to consider whether there could be a recovery in a legal action brought by the bank against the plaintiff upon the note that evidenced the debt due to the bank. It is sufficient for the purposes, of the proceeding which is assailed in.this action that, under the circumstances, there was an equitable obligation from the plaintiff'to reimburse the bank for its advances at the request of his guardian in the business of the plaintff. At least that question was fairly before the Supreme Court in that proceeding, and its determination should not be overthrown in this collateral action. The provisions of the Code are broad enough to permit the mortgaging of the plaintiff’s real estate to meet his equitable obligations. If, as between him and his guardian, he has been wronged in the proceeding, his redress must be against him in an appropriate proceeding.
The cases cited by the learned counsel for the respondent do not aid us.
In The Bank of the United States v. Ritchie, Jr. (8 Pet. 128), there was a bill of review to set aside a conveyance made in a proceeding in chancery, to sell infants’ real estate under the laws of Maryland. The bill of review was under the chancery practice and not a collateral proceeding.
A bill of review is in the nature of a writ of error, and its object is to procure an examination and alteration or reversal of a. decree made upon a .former bill, which decree has been signed and enrolled. (Stagg v. Jackson, 2 Barb. Ch. 90, and cases cited.)
But there were radical errors in that case apparent upon the face [21]*21of the decree. A guardian ad litem had been appointed on motion of plaintiff’scounsel, without bringing the minors into court. The insufficiency of the personal estate was not proved, and the guardian simply put in an answer, which was not under oath, admitting the petition.
In Ellwood v. Northrup (106 N. Y. 172) there was no reference to a referee to inquire into the merits of the application as required by statute, nor was the court informed as to the value and situation of the land, the reason of the sale, the name of the intended purchaser, the price to be paid and other jurisdictional defects.
In the Matter of Valentine (72 N. Y. 184) there was no reference as required by the statute, and there was no hearing of the parties interested and no report to the court.
It is important to the permanence and security of judicial proceedings that they should be sustained when the court has acted within its jurisdiction, and that other actions should. Hot be permitted to assail and destroy those proceedings except in a clear case and-for grave reasons.
We are satisfied that the Supreme Court, in directing the mortgaging of the plaintiff’s property, acted within its jurisdiction, and that the decision of the trial court, which we are now reviewing, was erroneous.
The courts in this and in our sister States have, with great strictness, sustained proceedings within the jurisdiction of the court from collateral attacks. In addition to the cases cited, we refer to the following: In Bellamy v. Thornton (15 South. Rep. [Ala.] 831) it was held that where a guardian uses his own funds to. support his ward under such circumstances as that an order for the sale of their land would have been granted for such purposes if it had been applied for in advance, a sale of sufficient of such real estate to reimburse him will be ordered.
And it was held in Williams v. Pollard (28 S. W. Rep. [Tex. Civ. App.] 1020) that where a ward’s land is sold on a proper petition to the Probate Court and under its decree, it will be presumed the necessary evidence was introduced.
In Daughtry v. Thweatt (16 South. Rep. [Ala.] 920) it was held that a guardian’s sale of land, after the court had jurisdiction's not void on collateral attack-oh the ground that the order of sale was made without notice to the ward, etc.
[22]*22And in Myers v. McGavock (58 N. W. Rep. [Neb.] 522) it was held that a decree of sale could not be attacked collaterally oh the ground that the guardian’s appointment was not properly, shown, or that notice of the order of confirmation of sale was not properly given.
And see, also, Decker v. Fessler (44 N. E. Rep. [Ind.] 657) and Eliason v. Bronnenburg (46 id. 582).
The judgment appealed from should be reversed and a hew trial ordered, with costs to the appellant to abide the event.
All concurred.
Judgment reversed and a new trial ordered, with costs to the appellants to abide the event.