
    Myrtle Van Williams, an Infant, by John W. Searing, her Guardian, Respondent, v. William Adam Elias and Others, Respondents. William C. Hamilton and Rodney B. Osterhoudt, Appellants.
    
      Marketable title — where a trustee having a power of sale need, not be made a party to a partition suit —presumption that a person not , heard from is living will not sustain a title — appointment of a guardian ad litem for an infant not served — presumption as to an infant of two or three years of age living with her mother..
    
    A testator, by his will, gave certain real property to trustees to hold in trust during the life of his widow, Mary Elias, and, after her death, until his grandson, William Adam Elias, should arrive at the age of twenty-five years or die before attaining that age. The will then provided as follows : “ Third. And on my grandson, William Adam, attaining the age of twenty-five years as aforesaid I give, devise and bequeath all my said property to my said granddaughter Mary and my said grandson William Adam in equal shares. * * ■ * If either said William Adam or my granddaughter Mary shall die as aforesaid, leaving lawful issue surviving, such issue shall take at the expiration of said trust the same portion"of my estate that the granddaughter or grandson, so dying, would have taken if she or lie had Survived the expiration of such trust.”
    All of the persons mentioned in the will survived the testator, hut prior to August 3, 1904, when William Adam Elias would have become twenty-five years of age, the widow and the granddaughter died, the latter leaving a child surviving her. December 11,1903, William Adam Elias became a defaulter, left the country and has never been heard of since. He left a wife and one child’ named Beatrice' Elias.
    September 36, 1904, the child of the deceased granddaughter brought an action to partition the real estate, the summons being served upon William Adam Elias by publication. Beatrice Elias, the infant daughter of William Adam Elias, was not originally made a party to the action, but before the entry of tlm interlocutory judgment therein, upon the petition Of Her mother as next friend, a guardian ád litem was appointed for the said Beatrice Elias and she was directed to be brought in as a party defendant in the. action and. the smm toons and complaint were ordered to he amended by inserting therein the name of the said Beatrice Elias as a party defendant, who was given leave to serve an answer. Thereafter the guardian -ad litem served an answer on behalf of the infant and the action proceeded to judgment, which determined that William Adam Elias was alive at the time he reached twenty-five years of age and was entitled to a one-half interest in the premises subject to the inchoate right of dower of his wife.
    Upon an application made by the purchaser at the partition sale to be relieved from the purchase, it was
    
      Held, that the failure to make the trustees under the testator’s will parties to the partition suit was not an objection to the title, as, assuming that such trustees we necessary parties to the partition suit, their discharge from the trust subsequent to the bringing of the action and prior to the rendition of judgment therein operated to divest them of all interest in the premises;
    That the presumption that William Adam Elias was living on August 3, 1904, was not sufficiently strong to give security to the title of a purchaser at the partition sale, and that, consequently, the question whether the purchaser should be required to take title was dependent upon whether his infant daughter, Beatrice Elias, was properly made a party defendant in the action;
    That the appointment of the guardian ad litem, for Beatrice Elias could not be sustained un ler section 471 of the Code of Civil Procedure, as such appointment can only be made after service of the summons upon the infant;
    That the petition for the appointment of the guardian ad litem did not bring the application within the conditions of section 453 of the Code of Civil Procedure which authorizes the application to be made by a person who “has an interest in the subject-matter thereof or in the real property, the title to which may in any manner be affected by the judgment,” for the reason that the petition did not show the existence of any interest of the infant in the real property, but simply showed the possibility of such an interest, and for the further reason that, not being a party to the action, no interest which the infant might have in the property could be affected by the judgment tnerem;
    That the appointment of the guardian ad litem, for the infant could not be sustained under section 453 of the Code of Civil Procedure, as that section requires that a supplemental summons in the same form as the original summons must be issued to the party brought in, while in the case at bar no summons was at any time served upon the infant;
    That the proceedings for the appointment of the guardian ad litem, were also defective, in that the petition did not allege whether the infant had any general or testamentary guardian, or with whom the infant resided, and did not - show compliance with the legal requirement that if the application is made by some person other than the infant notice shall be given to the general or .testamentary guardian of the infant, or, if there is none, to the person with whom she resides;
    That it would not be presumed from the fact that the infant was only two or three years of age that she was living with her mother who made the application:
    That it, therefore, did not appear that the infant would be bound by the judgment in the partition action and that the purchaser would receive a title free from doubt.
    
      A title is not. fairly marketable which rests merely upon a presumption unless such presumption rests so firmly upon facts that practically no doubt whatever exists as to the existence of the fact presumed.
    Appeal by William C. Hamilton and another, purchasers upon a sale under a decree in a partition action, from an order of the Supreme Court, made at the Ulster Special Term and entered in the office of the clerk of the county of Ulster on the 22d day of April, 1905, denying the appellants’ motion to be relieved from their purchase at such sale.
    The property which was the subject of the partition action was formerly the property of one Leonard' Elias, who died upon July 13,1896, leaving him surviving his wife, Mary Elias, and two grandchildren, one, Mary Elias, and the other, William Adam Elias. By the Will the property is vested in trustees for the use and benefit of his widow, Mary Elias; for and during her life, and after her death to be held by said trustees until William Adam Elias should arrive at the age of twenty-five years, or until his death before attaining such age: The third provision, as far as material to this controversy reads as follows : “ Third. And on my grandson, William Adam, attaining the age of twenty-five years as aforesaid, I give, devise and bequeath all my said property to my said granddaughter, Mary, and my said grandson, William Adam, in equal shares. * * * If either said William Adam or my granddaughter, Mary, shall die as aforesaid, leaving lawful issue surviving, such issue shall take at the expiration of said trust the same portion of my estate that the granddaughter or grandson, so dying, would have taken if she or he had survived the expiration of such trust.” Mary Elias, the widow, died about two years after the death of her husband. Mary Elias, the granddaughter, married Cameron Van Williams and died upon March 8, 1903, leaving her surviving one child, the plaintiff in the partition action, Myrtle Van Williams. The grandson, William Adam Elias, would have become twenty-five years of age upon the 2d day of August, 1904. Upon the 11th day of December, however, 1902, he, having been a defaulter, left the country and has never been heard of since. He left a wife, Mabel A. Elias, and one child, Beatrice Elias, an infant between two and three years old at the time of the judgment in partition. The action of partition was brought after the 2d day of August, 1904, at which time William Adam -Elias reached, if living, the age of twenty-five years. Beatrice Elias, the daughter of William Adam Elias, was not originally made a party to the action. The summons was served upon William Adam Elias by publication upon affidavits showing that he had departed from the State and his whereabouts unknown. Subsequently, before the interlocutory judgment, upon petition of Mabel Elias as next friend, one Emma Hutton was appointed guardian ad litem of the said Beatrice Elias, and the said Beatrice was ordered brought in as a party defendant in the action, and the summons and complaint were ordered amended by inserting the said name of said Beatrice Elias -as party defendant with leave to serve an,answer in the action. Thereafter the general answer was served by the guardian ad litem, and in the judgment after-wards rendered it was determined that William Adam Elias. was alive at the time he reached twenty-five years of age, and was entitled to one-lialf interest in said premises, subject to the inchoate right of dower of his wife, Mabel Elias. The sale was had under the judgment under which the appellants, Hamilton and Osterhoudt, became purchasers. Thereafter they made application to be relieved from the purchase upon three grounds: “ 1st. That one, Beatrice Elias, an infant, was a necessary party to the action herein; but said infant was not properly or legally brought into this action by service of a summons, and is not bound by the judgment herein or by by the sale of such property. 2nd. That the property herein involved wás subject to a valid, existing and mandatory power of sale vested in Wesley D. Hale, the executor and trustee of and under the will of Leonard Elias, deceased, which was a legal bar to this action. 3rd. That said Wesley D. Hale, as such executor and trustee of and under the will of Leonard Elias, was a necessary party deféndant to this action, but he was not so made a party and is not bound by any proceedings herein.” This motion was, by the Special Term, denied, and from the order denying said motion this appeal is taken. Further facts appear in the opinion.
    
      Joseph M. Fowler, for the appellants.
    
      John W. Searing and William D. Brinnier, for the plaintiff, respondent.
   Smith, J.:

■ Wesley- D. Hale, as trustee under the will of Leonard Elias, was discharged by decree of the Surrogate’s Court in November, 1904. The action of partition was brought ■ September twenty-sixth' prior thereto. Even though a necessary party at the commencement of the action, his subsequent discharge before the judgment would ■seem to have divested him of all interest in the controversy.

That Beatrice was a necessary party to this action in order to convey a perfect title would seem to me undoubted. William Adam Elias took no title whatever unless he was living upon .the 2d day of August, 1904, at which time he would have become twenty-five years of age. Upon December 11, 1902, he left the State and was never, heard from thereafter. Respondent’s argument rests in part upon the presumption that he is still living. While such may be .the. fair presumption as applied to a man twenty-six years of age, in good health, it is- very far from conclusive. The business in which he proposed to, engage^ that of a lineman in placing wires for the carrying of electricity, is one extremely dangerous... His failure for over- two years to send any, moneys to his wife or little child for their support, or to communicate with them, is unnatural in a -normal man. ‘ The presumption, therefore, that he is still living, or .was living upon the 2d day of August, 19.04, when if living .he would become entitled to a half interest in this property, is not alone sufficiently strong to give security to any title upon a sale in a partition action. If it should afterwards be proven that his death had occurred prior to August 2, 1904, these purchasers would find themselves with title to only. a half interest in the property while Beatrice would hold the other half -interest. No reasonably cautious man would dare to loan moneys either of his. own or of a trust fund upon any such title. It is not free, from reasonable doubt and is not such a title as the law will compel a jmrchaser to accept. In Vought v. Williams (120 N. Y. 253) it appeared that the. premises in question belonged to one R., who died intestate in 1853, leaving a widow and two sons, W. and GL The latter in 1863, when about twenty-two years of age, being unmarried, in poor health, dissipated and not in business, disappeared and has. not been heard of since. In April, 1875, his mother and brother conveyed to plaintiffs’ grantors by a deed which recited that they were the sole heirs at law of R. Held, that the title was not marketable and defendant could not be compelled to complete his purchase. Brown, J., in writing for the Court, says: A marketable title is one that is free from reasonable doubt. There is reasonable doubt when there is uncertainty as to some fact appearing in the course of its deduction-, and the doubt must be such as affects the value of the land or will interfere with its sale. A purchaser is not to be compelled to take property the possession of which he may be compelled to defend by litigation. He should have a title that will enable him to hold his land in peace, and, if lie wishes to sell it, be reasonably sure that ho flaw or doubt .will arise to disturb its market value. (Citing authorities.) ‘ If a title depends upon a fact which is not capable of satisfactory proof, a purchaser cannot be compelled to take it.’”. (Citing Shriver v. Shriver, 86 N. Y. 575.) In that case it was held that the presumption of death arising from the absence of -twenty-four years was hot sufficient upon which to create a marketable title. Respondent relies upon this authority as showing the strength of the presumption that William Adam Elias is alive. I read in the case, however, no support for the respondent’s claim. The principle seems-to be there established that a title is not fairly marketable whicffi rests merely upon a presumption unless such presumption rests so firmly upon facts that-practically no doubt whatever exists as to the existence of the fact presumed. Respondent argues that if this rule be held so strictly few titles could be found marketable because in many cases parties are absent and cannot be found and service of the summons must be made by publication. In those cases, however, the sale is good and the title marketable because the proceeds' of the sale are placed with the county treasurer, subject to the order of the defendant so served, or of his personal representatives. This provision of law found in section 158-2 of the Code of Civil Procedure is further urged in support of respondent’s contention that this title is marketable although Beatrice be not properly a party to the action. It will be observed, however, that the moneys are placed in the hands of the county -treasurer subject to the order of William Adam Elias, or his representatives. They could not be .-reached by Beatrice Elias even upon proof that her father died before lie became twenty-five years of age. Moreover, there appear judgments in this action in large amounts against William Adam Elias which must be paid from this deposit with the county treasurer unless proof can forthwith be found that he died before the. 2d day of August, 1904. It will be seen, therefore, that this section of the Code of Civil Procedure gives no protection whatever to Beatrice Elias in case it should afterwards appear that her father had died before reaching the age of twenty-five years.

This plaintiff is not remediless. She could have brought this aetioh alleging the doubt in this title and making William Adam Elias and Beatrice Elias both parties to the action. In such case the sale Would undoubtedly be free from the claims of either one. The judgment itself would be a bar to all claims by both against the property, and a good title could be given upon a sale in such an action. Or, if Beatrice Elias is properly made a party defendant in this action, she is bound by the judgment and the title is undoubtedly good. This brings us to the further question in the case, whether Beatrice was properly made a party defendant so as to be bound by the judgment herein.''

By section 471 of the Code' of Civil Procedure it is provided that an infant defendant must also appear by guardian who must be appointed upon the application of the infant, if the infant be fourteen years or upwards, and applies within twenty days after personal service of the summons, or after service thereof is complete, as prescribed in section 441 of said Code, or if he is under that age or neglects so to apply, upon the application of any other party to the action or of a relative or friend of the infant. By section 452 of the Code of Civil Procedure it is provided: “ Where a person not a party to the action has an interest in the subject thereof or in real property, the title to which may in any manner be affected by the judgment, * * * and makes ajDplication to the court to be made a party, it must direct him to be brought in by the proper amendment.” Section 453 of said Code provides that where the court directs a new defendant to be brought in mid the order is not made upon his own applicaUon, a supplemental summons must be issued directed to him, and in the same form as an original summons, except as changes may be necessary therein. No summons was at any time served upon this infant. The appointment of this guardian ad litem cannot be sustained as an appointment for an infant defendant under section 471 of the Code of Civil Procedure. Such an appointment it would seem could only be made after service of the summons upon the infant. (See Ingersoll v. Mangam, 84 N. Y. 625.)

It is claimed, however, that this rule cannot apply where an application is made by the infant itself under section 452, above referred to. Counsel for the appellant, however, insists that if Beatrice had been made a party defendant under this section the summons must still have been served upon her under section 453 of the Code of Civil Procedure because she was not so made a party upon her own application but upon the application of Mabel Elias acting as her next friend. Whether or not there be any force in this claim, we are of the opinion that the petition for the appointment of the guardian does not bring the application within the conditions of section 452 of the Code of Civil Procedure." That section authorizes the application to be made by a person who “has an interest in the subject thereof or in real property, the title to which may in any manner be. affected by the judgment.” The petition for the appointment of a guardian for Beatrice does not show the existence of any interest in this real property. It shows simply a possibility of an interest in this property. Moreover, no interest which she may have in the property could be affected by a judgment in an action to which she was not a. party. It would seem, therefore, that the conditions did not exist giving her the right to intervene in the action under this section. As against an infant the Code provisions will be construed strictly, and if she has not a legal interest in the property, and so has not been properly brought in, she will not be held hereafter to be bound by this judgment. It must at least be said that there is grave doubt as to whether her friend in making application for the appointment of the guardian has shown facts to bring her within the conditions named in this section.

• . But there is another defect in these papers for the appointment of this guardian. Whether a guardian be appointed for an infant plaintiff or an infant defendant the law requires, if the application be made by some person other than the infant, that notice shall be given to his general or testamentary guardian, or, if he has none, to the person with whom the infant resides. There is no recital in the Order appointing the guardian of notice having been given to any one. Nor is there kuy .allegation in the petition showing whether the infant had ¡any general or testamentary guardian, or with-whom the said infant, resides. It may be claimed that because the iiiíant was only between two and three years of age she would be presumed to be li ving with her mother .who makes the application- for the -appointment. Such .presumption .cannot he indulged iii fdr the purpose of Sustaining this order to make valid this title and forever -bar the infant from all right to question the saíne. With .the mother • left penniless tire infant niight 'we'll be liesiding with 'stime other person to -whom, the law would'require, notice before the guardián ad litem -could be appointed, especially where, as in -this case; the interest of this mother is to an extent .antagonistic to the interest of this infant -daughter.. The courts would not, in my judgment, hold this infant bound by a judgment in which the order appointing the guardian ad litem did -not sho-w the necessary notice which .would authorize the granting of such-order and in which the facts showing upon whom'proper' service .should he made did not appear -in the petition of a relative or friend for such appointment. ■ .

0-ur •conclusion is that this title -is. not free from-doubt and thejiurchasers should not be compelled to accept the same., The -order of the -Special Term -should ¡be reversed, with ten. dollars -costs and disbursements,, and ¡the motion granted, and the-matter remitted to Special Term .to determine what costs and expenses, .should be allowed the purchasers in ‘addition to the -repayment of' the deposit made upon the purchase.

All concurred; Chase, J., in result.

Order- reversed, with ten dollars costs and disbursements, ¡and motion .granted a'nd matter remitted, -to the Special Term to determine what costs and expenses should be allowed to the purchaser in addition to the repayment of the deposit made upon -the purchase.  