
    Felix Campbell, App’lt, v. Olivia E. P. Stokes et al., Resp’ts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 12, 1892.)
    
    Vendor and purchaser—Title—Partition—Parties.
    By the will of one M., he divided his estate into shares, and gave one to each of his children for life, with remainder to the lawful issue of such child per stirpes, and not per capita. The grandchildren, in esse were not made parties to an action for partition, in pursuance of which the premises in question were sold to plaintiff. Held, that such children were necessary parties to the partition action, and that plaintiff’s title was not a merchantable one.
    Appeal from judgment overruling demurrer to the counterclaim of the defendants, and against the plaintiff on the merits, and for the amount of the counterclaim, with costs.
    Action for specific performance of a contract for the sale of land. The answer for a counterclaim set up the facts relating to the title as stated in the opinion, alleged that it was not a marketable one, and prayed judgment that the complaint be dismissed, and that they have judgment for the amount paid on the contract, and the expenses of searching title.
    
      James & Thomas H. Troy, for app’lt; Wm. Allen Butler and E. D. Cowman, for resp’ts.
   Barnard, P. J.

The plaintiff agreed to sell to the defendants a piece of land No. 74 John street, N. Y., for $80,000; $5,000 was paid, and this action is brought to recover the balance. The sole question presented is whether the title of the plaintiff is merchantable. John Mortimer, Jr., owned an undivided third thereof in 1875, when he died. He left a will and six adult children. By the will this property passed as residuary estate, and it was to be divided into six shares, one for each child for life, with remainder to the lawful issue of such child per stirpes, and not per capita. If the child died without issue, he could dispose of his share by will, and if not, the testator gave his share to his, testa-. tor’s, lawful issue. Four of the six children of testator had children in 1875. A partition sale was made by action, and none of the grandchildren then in esse were made parties to it. The plaintiff’s title was acquired at this sale. These children were necessary parties in the partition action.. Moore v. Appleby, 108 N. Y., 237; 13 St. Rep., 492.

This case is very similar to the case presented by this appeal. There was a life estate by will, and remainder to children. It was held that the children were necessary parties to a partition suit.

The case of Townshend v. Frommer, 125 N. Y., 446; 36 St, Rep., 153, does not necessarily conflict with this decision. A married woman conveyed lands to trustees to pay income to herself for life, with a direction that the trustees convey at her death to her children then living. There was a mortgage on the property which was foreclosed during the life estate, and the children were not made parties to the action. It was held that the chil dren had no interest in the title while the life estate was running, and that consequently they were not necessary parties. No mention is made in the opinion of Townshend v. Frommer of the previous case of Moore v. Appleby. Other cases decided previously were distinguished, and the case of Moore v. Appleby was cited on the argument. "Under these circumstances it seems improbable that the court of appeals deemed the former case applicable to the latter one. The plaintiff’s title is not, therefore, a merchantable one, and the judgment should be affirmed, with costs.

Pratt, J.

All parties concede that if Moore v. Appleby, 108 N. Y., 237; 13 St. Rep., 492, decided in 1888, is still the law, the plaintiff must fail. But in his behalf it is argued that by Townshend v. Frommer, 125 N. Y., 446; 36 St. Rep., 153, decided in 1891, the case of Moore v. Appleby is overruled, and that by the latter decision the plaintiff is entitled to recover.

This view was ineffectually urged upon the court below. In reply, it was well said that as the former decision was not expressly overruled, we are not at liberty to regard it as overruled if any distinction can be found in the two cases.

It is enough to say upon this appeal that as the cases now stand the question involved is not so free from doubt as to justify this court in requiring a purchaser to accept the title.

It may well be that the court of appeals saw some clear distinction between the two cases, but failed to point it out in the opinion.

Judgment affirmed, with costs.

Dykman, J., concurs.  