
    Theodore Baumeister, Appellant, v. Frank Demuth, Respondent.
    
      Specific performance — defects in a title cured by an amendment of a petition for the appointment of a guardian ad litem and of the venue of an affidavit used therefor, nunc pro tunc —-parol evidence is admissible to correct the defects — proper form of correction nunc pro tunc— the mere filing of a lis pendens does not affect a title— am, affidavit taken by an attorney of record is not void — verification of a petition for the appointment of a guardian ad litem — in equity the vendee will be required to take a title cured after the day fixed for performance — at law he will not —judicial sales distinguished from private sales.
    
    The vendee, in a contract for the sale of real property, the title to which was acquired by the vendor through a foreclosure action, declined to accept the title because of certain defects in the foreclosure proceedings, Viz., the fact that a guardian ad litem had been appointed for an infant defendant on the petition of his mother showing that he was “of” the age of fourteen years, contrary to the provision of the Code of. Civil Procedure, which requires that in such a case the petition shall be made by the infant, and that the venue of the affidavit of the guardian ad litem showing Ms qualifications was designated as Westchester county while it purported to have been taken before a commissioner of deeds for the city of New York.
    
      Meld, that an order made upon notice to the parties to the foreclosure action, amending the petition and affidavit nunc pro tunc as of the time when they were made, by changing the venue of the affidavit to New York county and by reciting in the petition that the infant was under the age of fourteen years, and directing that the affidavits showing these facts be annexed to the judgment' roll and the appointment of the guardian be confirmed and his acts ratified, was sufficient to cure the vendee’s objections, although such order was obtained without notice to him;
    That parol testimony was admissible to correct the apparent defects, and that the court was authorized to amend the proceedings nunc pro. tunc.
    
    
      Semble, that the better and proper practice would have been for the vendor to obtain an order allowing thé filing of a new petition and affidavit nunc pro tunc.
    
    The mere filing of a Us pendens "against property in an action, the complaint in which was dismissed and the lis pendens canceled prior to the entry of the judgment of foreclosure, does not affect .the title to the premises.
    Although the practice forbids the attorney of record in an action to take an-affidavit for use therein, such an affidavit is not void.
    There is no statute requiring the verification of a petition for the appointment of a guardian ad litem, although the proper practice requires such a verification.
    In an action by the vendor in a land contract to compel specific performance thereof, it is the practice to require specific performance if the title is good at the time of the trial, even though defective- at the time fixed for the closing of. the contract, where the vendor, upon discovering the defects in Ms title, exercised diligence in remedying the same, and the vendee did not insist that time was of the essence of the contract, provided there has been no change in the circumstances or position of the parties by which performance will become inequitable or will operate to the substantial prejudice of either party, and that nothing has occurred to create an estoppel.
    
      Semble, that in an action at law brought by the vendor, the fact that his title was not good at the time fixed for performance, constitutes a perfect defense although the title has since been perfected.
    The courts are not as liberal in relieving a vendee of land at a private, sale, on account of technical defects in the title, as they are where the premises were purchased at a judicial sale.
    Appeal by the plaintiff, Theodore Bauméister, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of, the county of New York on the 14th day of March, 1903, upon the decision of the court, rendered after a trial at the New York Special Term, adjudging that the plaintiff did not have a good and marketable title to the premises described in the complaint in the above-entitled action.
    
      Samson Laohman,• for the appellant.
    
      Edward W. S. Johnston, for the respondent.
   Laughlin, J.;

The action is brought by the vendor to enforce specific performance of a contract for the sale of lands. The defendant in his answer also demanded specific performance and prayed, in the event that plaintiff cannot make good title,” that he have judgment for the purchase money paid and for the costs of examining the title and that the same be declared a lien upon the premises. It was expressly provided in the agreement that the contract was to be performed on the 1st day of July, 1902. On that day the parties met at the time and place specified for consummating the transfer and counsel for the vendee raised certain objections to the title. Counsel for the vendor insisted that the title was good and that the objections were without merit, but he, however, offered to correct the same and invited suggestions from counsel for the vendee as to how this could be done. The latter said that he was not prepared at that time to advise how the defects could be remedied, but that he would think the matter over. At this interview and during the discussion as to defects in the title each party tendered performance, and, subsequently, they separated without any express agreement postponing the'time of performance and without any understanding concerning future negotiations.

The alleged defects in the title to which attention was drawn related to the proceedings in a foreclosure action through which plaintiff derived his title and to the effect of the judgment therein.. They were : (1) That in the foreclosure action a guardian ad litemhad been appointed for an infant, defendant on the petition of his. mother which showed that he was “ of ” the age of fourteen years,, contrary to the provisions of the Code of Civil Procedure (§ 471) which required that in such case the petition shall be made, by the: infant; (2) that the venue of the affidavit of the guardian ad litemshowing his qualifications was Westchester county, but .it purported to have been taken before a commissioner of deeds for the city of New York ; and (3) that certain judgment creditors of certain heirs of Benjamin F. Fairchild' should have been made parties to the foreclosure action in order to cut. off the lien of their judgments.

After the parties separated, but on the same day, the attorney for the vendor wrote the attorney for the vendee offering to have these-defects corrected by an order amending the proceedings. The attorney for the vendee answered this letter the next day, stating in effect that he thought the only remedy was a strict foreclosure and that he would be willing to advise his. client to extend the time of performance to enable the vendee to • perfect title in that manner.' Eight days later the attorney for the appellant, on notice to the parties to-.the foreclosure action .and on proof that the infant was at the -time under fourteen years of age; that the statement in the petition that he was over fourteen was a clerical error, and that the-affidavit of -the guardian was taken in the city of New York,, obtained an order of - the Special Term of the Supreme Court, amending the venue to the county of New York, amending the-petition for the appointment of the guardian so as to recite that, the infant was under the age of fourteen years, and directing-that these amendments be made nunc pro tunc-ss of the -date of the papers to which they respectively relate, and that the affidavit of ■the guardian, of the mother of the infant and of the plaintiff showing these facts, among other things, be annexed to the judgment roll in the foreclosure action with the same force and effect as if they had been attached at the time of the appointment- of the guardian ad Utem and that the appointment of the guardian ad litem be confirmed and his acts ratified.

The court declined to receive in evidence a letter from the attorneys for the vendor to the attorney for the vendee on the 9th day of July, 1902, notifying him of the entry of this order, but it was marked for identification, is printed in the record and counsel for the respondent concedes in his points that it was sent to his client. On the eleventh of July the vendor again tendered performance, but was told by the vendee that the matter was in the hands of his attorney. The action was then commenced.

The appellant, still maintaining that his title was good, contends that if there were any defects the same have been corrected by the order. The respondent insists that he should have had notice of the application for the order. We think he was not entitled to such notice. If it was a proper case for granting the order, the only persons entitled to notice were the parties to the foreclosure action and, apparently, they made no objection. Counsel for the respondent concedes that these were not jurisdictional defects and that they were irregularities merely. The infant and his mother had been duly served with the summons and complaint. The plaintiff in the foreclosure action had nothing to do with the appointment of the guardian ad litem for within the time allowed by law for that purpose the application was made by the mother. The infant having been in fact under fourteen years of age, the mother was the proper party to make the petition. Thus the court clearly had jurisdiction. All of the facts essential to jurisdiction and to the action taken existed, but owing to inadvertence or mistake the age of the infant and the venue of the affidavit were not correctly stated. Parol testimony is admissible to correct apparent defects such as these affecting title (Hellreigel v. Manning, 97 N. Y. 56), and, upon proof of the facts, the apparent defects in the title vanished and the court was authorized to. amend the proceedings nunc pro tunc. (Code Civ. Proc. §§ 722, 1282; Schell v. Cohen, 55 Hun, 207; Rogers v. McLean, 34 N. Y. 536; Reed v. Reed, 46 Hun, 212; Croghan v. Livingston, 17 N. Y. 218; Gilmore v. Hempstead, 4 How. Pr. 153; Disbrow v. Folger, 5 Abb. Pr. 53 ; Loring v. Binney, 38 Hun, 152 ; Sisco v. Martin, 61 App. Div. 503; Fisher v. Bloomberg, 74 id. 368; Murphy v. Hall, 38 Hun, 528; Tobin v. Cary, 34 id. 431; Bohlen v. Met. Ry. Co., 121 N. Y. 546.)

The respondent also contends that the proceedings, to correct the title are ineffectual on account of the form of the order which directs the amendment of the petition and of the venue of the affidavit. Perhaps the better and proper practice would have been to have allowed the filing of a new petition and affidavit nunc pro tunc.; but that is not a matter of substance. The essential thing is ■proof to the satisfaction of the court of the facts correcting the erroneous statements.. "

The court gave no consideration to the claim that certain judgment creditors should have been parties to the foreclosure suit and counsel for the respondent does not argue that question in his points or seek to uphold the decision on that ground; consequently it is •not necessary that we should give it special attention. It would seem, however, that there is no force to the objection. One of the heirs of Fairchild had filed a lis pendens against the property in an action in which she claimed that it was partnership property owned by Fairchild in common with one Yoran. The record title was in Yoran. The complaint in that action was dismissed and the Ms, pendens canceled prior to the entry of the judgment of foreclosure. There was merely the filing of a lis pendens and the bald assertion of a claim with nothing upon the record to substantiate it. This did not affect the title nor would judgments against Fairchild or his heirs be liens upon the property. (Hayes v. Nourse, 114 N. Y. 595 ; Donovan v. Sheridan, 37 N. Y. Super. Ct. 256.)

Upon the trial the respondent raised the further objection, not previously raised, that the petition for the appointment of the guardian was verified before a notary public who was the executor of the infant’s father and attorney in the foreclosure action for the infant’s mother. Although the practice forbids an attorney of record in the action to- take affidavits for use therein, the affidavit, when so taken, is not void. There is no statute requiring the verification of such petition (Van Wyck v. Hardy, 4 Abb. Ct. App. Dec. 498), but, of course, the proper practice requires a verification Moreover, all of the essential facts are stated in the affidavit of the infant’s mother made on the application for an order correcting the proceedings.

The respondent now contends that if the plaintiff’s title was not good at the time fixed for performance he is under no obligation to complete the purchase, even though the title has been perfected since. In an action at law that would be true; but it is the practice in equity to require specific performance if the title is good at the time of the trial, even though defective at the time fixed for performance of the contract where the vendor has, upon discovering defects, exercised diligence in remedying the same, if there has been no change in the circumstances or position of the parties by which performance will become inequitable, or will be to the substantial prejudice of either party, or where nothing has occurred to create an estoppel. (Schmidt v. Reed, 132 N. Y. 108 ; Haffey v. Lynch, 143 id. 241; Jenkins v. Fahey, 73 id. 355; Myers v. De Mier, 52 id. 647; Hubbell v. Von Schoening, 49 id. 326.) The courts are not as liberal in relieving a purchaser under private contract on account of technical defects as at a judicial sale. (Haberman v. Baker, 128 N. Y. 253.) There is no evidence of a change of circumstances of the parties rendering it inequitable to decree specific performance. The parties did not stand upon their strict legal rights or insist that time was of the essence of the contract. Their negotiations at the time fixed for performance and subsequently thereto show that both were still willing and anxious to perform and that neither rescinded for the breach. This is further borne out by the respondent’s answer, to which reference has been made. The action was commenced on the 11th day of July, 1902, or within ten days after the day fixed for performance. This was within a reasonable time ; and we think the plaintiff has in no manner slept upon his rights. He should, however, have submitted a copy of the order correcting the foreclosure proceedings and of the papers upon which it was granted to the attorney for the respondent and afforded an opportunity to him to examine the same before commencing the action. This, however, does not affect the jurisdiction of' the court; but for his hasty precipitation of the litigation the plaintiff should not be awarded costs. We think the plaintiff showed- good title and that specific performance should have been decreed.

ít follows, therefore, that the judgment should be reversed and a new trial ordered, but without costs.

Patterson, O’Brien, In graham an d McLaughlin, JJ., concurred.

Judgment reversed and new trial ordered, without costs.  