
    Bogert v. Bogert et al.
    
    
      (Supreme Court, General Term, First Department.
    
    July 9, 1889.)
    Partition—Parties—Tenant by Curtesy.
    The surviving husband of a deceased co-tenant of an estate in fee is a necessary party to an action for partition thereof, between the children of himself and Ms deceased wife and the other co-tenants.
    On motion for reargument. For original opinion and statement of facts,
    see 5 FT. Y. Supp. 893.
    
      P, Q. Eckerson, for appellant. G. W. Pleasants, for respondents.
   Per Curiam.

There is nothing in the moving papers on which the order appealed from was granted to show that the deed from Moyer to Bogert was tendered to the purchaser, and the purchaser denies the fact of the lender or production of that deed. We must therefore dispose of the appeal upon! the ' record presented to us. But if we should take notice of the deed it would not cure the defect in the title. Bogert, the grantee, was a party to the action. But the only interest in the premises in suit adjudged him by the decree was his curtesy as husband of the plaintiff. If he had had at the time of the decree any other interest, probably the decree would have concluded him. But the conveyance to Bogert from Moyer wras not made till five months after the decree. The effect of such conveyance is simply to vest in Bogert the interest formerly held by Moyer. That interest is still outstanding, and would not pass to the purchaser at the partition sale. The conveyance, therefore, is nowise effective to cure the defect in the title. Motion for reargument should be denied, with costs.  