#### Frank Jenkins *v.*John Young and Anthony Le Fevre.

*(Supreme Court, General Term, Fifth Department,*

*Filed January,*1887.)

Ejectment — Proceedings foe sale of land foe payment of decedent’s debts — Irregularity.

In an action of Ejectment brought by one of the heirs of W. J. to recover possession of land of which he died seized in September, 1803, defendant alleged that the land was sold pursuant to an order of the Surrogate’s Court to pay the debts of W. J., deceased, and that defendant derived title through the purchase at such sale. In June 1871, proceedings were instituted by the administrator of W. J. before the Surrogate, which were regular except in the omission to appoint guardian for plaintiff then a minor of the age of eighteen years. Laws 1S63, ch. 362, § 6, then in force provided that minors should be served with the order to show cause, and special guardians appointed for them, in the same manner as citations were required to be served, and special guardians appointed on the proof of wills. The order to show cause was personally served on plaintiff. On the return day before any further proceedings it was the surrogate’s duty to appoint a special guardian for plaintiff.

*Meld,*that formerly such omission was held to be a jurisdictional one and to render the proceedings void as against such parties. That a judgment of a court of general jurisdiction was rendered voidable merely bv the omission to appoint a guardian *ad litem*of an infant defendant served with process, his remedy is by direct proceedings to reverse it or set it aside. By Laws 1850, chapter 82, § 1, an omission like that in question is made of like effect with that of an omission of that nature in proceedings before a court of general jurisdiction, that the proceedings therefore were not void but voidable and cannot successfully be attacked collaterally by means of an action of ejectment.

*477MotioN by the plaintiff for a new trial on exceptions taken at Ontario circuit and ordered beard at general term in first instance.

*John D.*Lynn, for plff.; *Frank Bice,*for deft.

Bradley, J.

The action is ejectment to recover the possession of land of which William Jenkins died seized in September, 1863.

The plaintiff is one of his heirs and as such seeks to recover. The alleged defense is that the land was sold pursuant to an order of the surrogate’s eourt of Ontario county, to pay the debts of William Jenkins deceased, and that the defendant derived title through the purchaser at such sale.

It appears that in June, 1871, proceedings were, instituted by the administrator, etc., of the decedent before such surrogate, and that they were in all respects regular, and as required by the statute for the purposes in view, except that no guardian was appointed for the plaintiff, who was then a minor of the age of eighteen years.

The only question is whether that omission rendered the proceedings and sale void. The trial court held it did not, and directed a verdict for the defendant.

The statute in force when they were had, provided that minors should be served with the order to show cause, and special guardians appointed for them in the same manner as citations were required to be served, and special guardians appointed on the proof of wills (Laws of 1863, ch. 362., § 6),‘ which provided that service should be made on the persons interested, and if any one is a minor, under the age of fourteen years, service should also be made on his father, mother, or guardian, and if there should be none in the state, then upon any person having the care and control of such minor, or with whom he resided, or in whose service he was employed. (Laws of 1837, ch. 460, § 8., as amended by Laws of 1863, ch. 362, § 1.

The order to .show cause was personally served upon the plaintiff. On the return day of the order to show cause, or before taking any further proceedings, it was the duty of the surrogate to appoint a special guardian for the plaintiff, to take care of his interests. *Bid. 0*

The failure to appoint guardians for infants in such cases under former statutes was held to be a jurisdictional omission, and to render the proceedings and sale void as against them. *Bloom*v. *Burdick,*1 Hill, 130; *Schneider*v. *McFarland,*2 N.Y., 459.

The proceedings referred to in those cases were had under 1 R. L. of 1813, ch. 68, which required the appointment of guardians for infants on the presentation of the petition, § 31. Such was the requirement of 2 R. S., 100, § 3. And no change *478was made in tbat respect by the Laws of 1837, ch. 460. The appointment of a guardian for an infant was a preliminary requisite to the making and service of the order to show cause and bring him into court, and therefore the court was not permitted to, and could not acquire jurisdiction of the person of the minor, without pursuing such initiatory prescribed method of providing for service on him. The latter statutes before referred to have removed such preliminary requisite and have directed service of the order to show cause on the minor over fourteen years of age, in the same manner as upon an adult. He is in like manner brought into court, and the proceeding is commenced. And it is thereafter that the guardian must be appointed to enable him to be heard, and for the preservation of his rights.

While omission to make such appointment is error, and renders the proceedings irregular and voidable, the question whether it goes to the jurisdiction so as to render them invalid, and subjects them to defeat from collateral attack, requires further consideration.

The general rule is, that a statute providing for proceedings having the effect to divest title to property must in all material respects be strictly pursued to render such result effectual. *Cruger*v. Dougherty, 43 N. Y., 107; *Merritt*v. Portchester, 71 N. Y., 309.

A judgment of a court having general jurisdiction is not rendered void by the failure to appoint a guardian *ad*litem, of an infant defendant who has been served with process, but is voidable only. *McMurray*v. McMurray, 66 N. Y., 175; *Austin*v *Charlestown Female*Seminary, 8 Met., 196; S. C., 41 Am. Dec. 497. *Porter*v. Robinson, 3 K. (Marshall), 253, S. C., 13 Am., De. 153; *Joyce*v. McAvoy, 31 Cal., 273.

And his remedy is by direct proceeding to reverse or set it aside. The reason is that by the service upon him of the proper process in the manner prescribed by law, jurisdiction of his person is acquired, and the omission to appoint for him a guardian is a defect or irregularity merely in the action or proceeding. This failure to proceed as directed may ordinarily have a greater and invalidating effect upon statuory special proceedings. But by “ an act for the protection of purchasers of real estate upon sales by order of surrogates,” it is ^provided that such sales “ shall be deemed and held as valid and effectual as if made by order of a court having original general jurisdiction. And the title of any purchaser at such sale made in good faith shall not be impeached or invalidated by reason of any omission, error, deficit, or irregularity in the proceedings before the surrogate or by any allegation of want of jurisdiction on the part of such surrogate, except in the manner and for the causes that the same could be impeached or invalidated in case such sale had been made pursuant to the order of a court of original general jurisdiction. Laws of 1850, ch. 82, § 1,

*479As before remarked, jurisdiction was obtained of the person of the plaintiff by the service, which appears to have been properly made on him, of the order to show cause. And by the statute last referred to the effect to be given to the proceeding and sale was the same as that which results from the direction of a court of original general jurisdiction as applied to a° matter within such jurisdiction. .And as a consequence the proceeding and sale were not void, but voidable, and cannot be successfully attacked eollattrally by means of. an action of ejectment, This question did not necessarily arise in *Havens*v. *Sherman,*(42 Barb, 636). In the proceeding there under consideration the time to show cause, as directed by the order, between that of its issue and return day, was less than the statute permitted (2 R. S., 101, § 5) which was held fatal for want of jurisdiction.

The court there also remarked that the omission to appoint guardians for the infant heirs, would render the sale void, and cited the Bloom and Schnieder cases *supra.*It will be observed that the proceeding and sale in question in *Havens*v. *Sherman,*were had under the statute prior to that of 1868, before referred to, and when the appointment of guardians in such cases was to be made on the presentation of the petition, or before any further proceedings were had.

And that such remarks of the court may have been applicable to that case, and not necessarily so to the one at bar. And the same be said of *Chandler*v. *Northrop.*(24 Barb., 129.) The doctrine of those cases is the familiar proposition that when a statute prescribes the mode of acquiring jurisdiction it must be strictly pursued, or the proceedings is void, and must fall for want of it.

These views are in harmony with that expressed in Matter of Becker (28 Hun, 207), and lead to the conclusion that the motion for new trial should be denied, and judgment ordered for the defendant on the verdict.

Lewis, J., concurs; Haight, J., not voting.