
    MATTER OF CAVANAGH.
    
      Supreme Court, First District; General Term,
    
    March, 1862.
    Partition of Real Property by Petition.—Release of Purchaser at Judicial Sale.
    A purchaser at a sale by order of court will not be required to complete his purchase, in case of reasonable doubt as to the validity of the title acquired.
    After a sale of land under proceedings in partition, instituted by petition pursuant to 2 Rev. Stat., 317, § 1, the purchaser objected to the title, on the ground that such proceedings were abolished by the Code. Held, that he should not be compelled to complete his purchase.
    Appeal from an order, requiring a purchaser at a sale in partition to complete his purchase, and accept deed.
    This was a proceeding instituted by George W. Cavanagh, Sarah Foster, and Samuel Foster, by petition to the Supreme Court, under 2 Rev. Stat., 317, § 1, for the partition of a lot of land with dwelling-house in Fifty-first-street, New York city. A special guardian was appointed for certain infant owners of three-fifths of the property. Three commissioners were appointed to make the partition. The commissioners reported that the property, in their judgment, was not capable of actual partition; whereupon an order was made for a sale of the premises.
    On such sale Timothy Donovan became the purchaser, and paid the usual deposit. After an examination of the title, Donovan declined to complete his purchase, on the ground of alleged informalities in the proceedings; but mainly on the ground that proceedings for partition under the Revised Statutes by petition were abolished by the provisions of the Code.
    The petitioners applied to the court for an order requiring Donovan to accept the deed, and pay the purchase-money; and such order was granted. The purchaser appealed.
    
      Bogardus & Brown, for the appellant.
    I. A purchaser is never compelled to accept a doubtful title. (See cases cited, 11 Abbotts’ Pr., 444.)
    II. Justice Pratt, in Croghan a. Livingston (17 N. Y., 218 ; S. C., 6 Abbotts' Pr., 350), pronounces the proceeding by petition under the ¡Revised Statutes “ abolished, ” and the proceedings by summons and complaint the “ only existing form of remedy for a partition.” This opinion is carefully studied, the point in question thoroughly argued, and the conclusion positive and undoubted.
    III. The cases of petition in 3 and 4 How. Pr., were under the Code of 1848, which expressly excepted the chapter of the ¡Revised Statutes relative to partitions from the operation of the Code. This exception was not continued in the Code of 1849, but instead thereof a new chapter providing for partitions was added to the Code. Section 468 of the Code provides that “ all rights of action given or secured by existing laws may be prosecuted in the manner provided by the Code.” By the same section, it is only in cases “ in which an action for the enforcement or protection of a right, or redress or prevention of a wrong, cannot be had under this act,” that “ the practice heretofore in use may be adopted.”
    IV. A petition is an “ ordinary proceeding in a com! of justice ‘ prosecuted for the enforcement of a right” it is therefore an “ action under the very definition of the Code (§ 2), and by § 6 is a civil action. (See Myers a. Rasback, 4 How. Pr., 83.) By § 127, civil actions in courts of record shall be commenced by summons, which must be served on the parties. Infants must appear by guardian (§ 115); and if over fourteen years of age, the guardian is to be appointed on the infant’s application, within twenty days after service of summons ; otherwise on the application of other parties. As none of the steps prescribed by the Code have been taken, no jurisdiction was ever acquired over the three infant defendants, and their three-fifths of the property is not affected by the decree.
    V. The proceedings are irregular and defective even under the Bevised Statutes alone.
    VI. There has not been any such frequency of proceeding since the Code of 1849, as to furnish any reason for disregarding the plain intent of the Code. All the cases of partition we have found reported since 1849 have been by summons and complaint, with one exception, in which no notice was taken of this point. Even under the Code of 1848, Justice Harris thought “ a summons and complaint the only proper form of procedure.” (Backus a. Stilwell, 3 How. Pr., 318. See Myers a. Rasback, 4 Ib., 83; Row a. Row, Ib., 133 ; Northrop a. Anderson, 8 Ib., 351; Ripple a. Gilborn, Ib., 456; Brownson a. Gifford, Ib., 389; Lyle a. Smith, 13 Ib., 104; Blakely a. Calder, 15 N. Y., 617; affirming S. C., 13 How. Pr., 476 ; Canfield a. Ford, 16 Ib., 473; Hyatt a. Pugsley, 23 Barb., 285, 303 ; Noble a. Cromwell, 26 Ib., 475; S. C., 6 Abbotts’ Pr., 59; Jennings a. Jennings, 2 Ib., 6 ; Disbrow a. Folger, 5 Ib., 53; Waring a. Waring, 7 Ib., 472.) There is no difficulty about making title under a new action for partition, or under a foreclosure of the mortgage on the premises, either of which can be done at far less expense and far less delay than would be necessarily incurred in getting a final determination in the courts of the question whether the remedy still exists. Hnder a decision of the general term adversely to the purchaser on this motion, the purchaser would not be safe in taking the title; for if the Court of Appeals should hereafter decide in any future, case in accordance with Justice Pratt’s opinion, the present purchaser might be immediately ejected by the infants.
    
      Charles D. Miller, for the respondent.
    I. The objection that the proceeding by petition is abolished, was not before the court in Croghan a. Livingston (17 N. Y, 218; S. C., 6 Abbott's Pr., 350); and hence that case is not authority here. That opinion, if followed, will unsettle many titles. Many cases have occurred where the proceeding was by petition, including one reported case. (Alvord a. Beach, 5 Ib., 451.) A statute of this nature should not be abolished by mere implication, and far too much property has been disposed of to admit of it. It would do violence to the rights of too many innocent purchasers. In the case of Croghan a. Livingston, when before this court at general term (25 Barb., 336), no intimation will be found that the proceeding by petition had been abolished, but the justices appear to have entertained a contrary view.
   By the Court.—Clerke, J.

I think it would be contrary to that caution upon which we have always acted in relation to applications of this kind, to compel the purchaser in this case to complete his purchase.

There seems to be a considerable diversity of opinion whether a partition of real property can now be effected by a petition.

According to the opinion of Mr. Justice Pratt, in Groghan a. Livingston (17 N. Y., 218; S. C., 6 Abbotts’ Pr., 350), this mode of proceeding is abolished. He deems the proceedings by summons and complaint the only existing form of remedy for partition. This might be considered a dictum, not having been necessary to the decision of the question before the court at the time. But the point seems to have been carefully considered by the judge, and his opinion is unhesitating and unqualified. The same opinion has been expressed by other j udges, and it is a very prevalent one in the profession. Without venturing now to say that it is well founded, the doubts referred to make it safer and more in conformity with our usual course, not to compel the purchaser under such circumstances to complete his purchase. I think the order should be reversed, the purchaser relieved, and his deposit repaid. 
      
       Present, Ingraham, P. J., Leonard and Clerke, JJ.
     
      
       On a subsequent application by the purchaser in the same proceeding, At Chambers, April, 1862, the petitioners were ordered to pay the costs and expenses of the purchaser, and that such costs and expenses, on being ascertained, should be charged upon the petitioners’ interest in the land, and that the purchaser have execution therefor.
      
        Bogadus & Brown, for the motion, cited 2 Paige, 586 ; 3 Edw., 69 ; 6 Beav., 97.
      
        Charles D. Miller, opposed.
      Clerke, J., ordered that it be referred to Maurice Leyne, Esq., to ascertain the costs and expenses of the purchaser, and report the same; that the petitioner pay the purchaser or his attorney, upon the confirmation of the report, the amount so ascertained; that an execution might be issued therefor, or that the same might be paid from any proceeds of said premises belonging to the petitioner upon any sale that might thereafter be made under the order or direction of this court.
     