
    John Hopkins et al., Resp’ts, v. Anna Frey, Impl’d, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 13, 1892.)
    
    Foreclosure—Failure of guardian ad litem to serve answer.
    A judgment of foreclosure is not invalidated by the failure of the guardian ad litem oí infant defendants to file the formal answer. Such failure is a mere irregularity, which the court may cure by permitting such answer to be filed nunc pro tuna at any time.
    Appeal from an interlocutory judgment overruling a demurrer interposed by Anna Frey to the plaintiff’s complaint.
    
      A. R. Dyett, for appl’t; I. Newton Williams, for resp’ts.
   Barrett, J.

The demurrer brings up the single question whether the complaint states facts sufficient to constitute a cause of action. Stripped of verbiage, the complaint sets forth that in the year 1875 the executors’ of one Landgrebe commenced an action in this court for the foreclosure of a second mortgage upon certain property in which the plaintiff, John Everett Hopkins, and his brother Frank Hopkins (since deceased) were interested. John Everett and Frank Hopkins were in fact the heirs-at-law of the mortgagor, Sarah E. Hopkins, who died m the year 1874. The present plaintiff, John Hopkins, was her husband. These heirs-at-law were minors when the mortgage was foreclosed, and the •court appointed a. guardian ad, litem fox them. The plaintiff there proceeded to judgment, and in October of the same year the property was sold by a referee to Mr. Christopher Fine. In November, 1875, Fine sold the property to the defendant Sanguinetti, who, in the year 1884, conveyed a part of it “ by way of gift or sale ” to the appellant Frey. It is alleged that the guardian ad litem for John Everett and Frank Hopkins did not appear, answer or demur in the foreclosure suit, and that he failed to perform the acts and duties required of him by the statutes and rules of court then in force. This is the only material fact which is alleged as against the foreclosure judgment. All else is either characterization or conclusion, e. g., that the court never acquired jurisdiction as to the minors, and that the judgment was void, etc. The statement that the referee never qualified or took an oath is immaterial, as no oath was called for after his appointment, nor was he required to give a bond or to qualify in any other formal manner. The court acquired jurisdiction by the service of the summons upon the infants, as provided by law, and after such service was completed by the appointment of a guardian ad litem. Such is the practice now, and such was the practice in 1875, under the old Code. Code of Procedure, § 134, subdv. 2; id. § 116, subdv. 2. The plaintiff in the foreclosure suit was bound to bring the infants within the jurisdiction of the court, to see to it that they were duly served with process, and that a guardian ad litem, was properly appointed. There, _ however, his responsibility ended. He was not bound to see to it that the guardian thus appointed did his full duty to the infants according to the rules off practice.

If the guardian failed in these particulars, he was liable to his ward, but the judgment of foreclosure was not invalidated by such negligence to which the plaintiff was not privy and which he could not control. There is no averment in the present complaint that the infants were not duly served with the summons as required by law, nor that they had any defense to the action, nor that the judgment of foreclosure could, even with entire diligence,, have been avoided. Consequently, it must be assumed that the infants were duly served and that they had no defense.

Thus we have simply the naked fact that the guardian failed to-interpose the only answer which he could have interposed, namely, the formal one which submits the rights of the infants to the court. It is upon this slight ground that the plaintiffs cow, after the lapse of sixteen years, seek a decree which will enable them « to question this foreclosure judgment The neglect of the guardian to interpose a formal answer, as required by the practice, was a mere irregularity which the court would have cured by permitting such an answer to be filed at any time nunc pro tune. Alt house v. Radde, 3 Bosw., 410; and see Croghan v. Livingston, 17 N. Y., 218, and Crouter v. Crouter, 44 St. Rep., 815.

The case made by the complaint is, however, weaker than if it were a direct attack upon the foreclosure judgment. It is further alleged that in May, 1883, and after John Everett and Frank Hopkins became of age, the defendant Sanguinetti secured from . them a quit-claim deed of this same property in consideration of a trifling sum of money, and it is this quit-claim, not the foreclosure judgment, which is here sought to be set aside. The plaintiffs charge that the quit-claim was obtained from them by fraud, in that Sanguinetti represented that they had no interest in the property; that their rights had been cut off by the foreclosure in 1875; that she, Sanguinetti, was about to sell the property ; that it was necessary to correct some clerical error in the foreclosure proceedings which the court would do without the signatures of John Everett and Frank Hopkins, but that this would take a little time and that she would pay $100 to avoid the delay and to secure the same end by their release. They agreed to this, took the money and signed the quit-claim. This is characterized as a fraud, and the representations are alleged to have been untrue. But the fact is quite the reverse. Every word Sanguinetti uttered was true, and if the plaintiffs had taken the trouble to look at the record they would have seen that what she said was quite accurate. Her facts were true even if she erred in her legal conclusions. The plaintiffs now say that they did not discover the falsity of her representations until 1891, but they do-not tell us why they failed to make this easy discovery (that is, easy, if the representations were untrue) for upwards of eight years. The record, which was the basis of the whole story, was in existence when Sanguinetti spoke, and it has been in existence ever since.

The record, so far as appears from any averment in this complaint, really disclosed the truth of Sanguinetti’s 'statement, but were it otherwise, the Hopkins Brothers were no longer minors when they were asked to sign the releases. They were then men of full age, and had the same opportunity as Sanguinetti to determine whether the judgment of foreclosure was valid or invalid. It is clear, therefore, that no fraud, as matter of fact, and as distinguished from adjectives and idle invective, is charged with regard to either the foreclosure proceedings or the release. None upon Sanguinetti's part. None upon her transferees’, who became transferees in reliance upon the recorded quit-claim. As to these transferees, not even notice of any alleged fraud in procuring the quit-claim is alleged. The complaint fails to state facts tending to constitute a cause of action, and it is wholly without merit.

The interlocutory judgment should, therefore, be reversed, with «costs, and an interlocutory judgment granted sustaining the demurrer, with costs, with leave to the plaintiffs to amend their «complaint within twenty days, if so advised, upon payment of the costs of the special and general terms.

Yak Brunt, P. J., and O’Brien, J., concur.  