
    Richard Walter, Pl’ff, v. Henry P. De Graaf and Ida M. Ingersoll, Def’ts.
    
      (New York Superior Court, Special Term,
    
    
      Filed September 24, 1887.)
    
    1. Title—To realty—When purchaser at auction justified in refusing to accept deed and to recover deposit.
    The plaintiff, on February 14, 1887, purchased certain real estate in this city at auction, he, by the terms of the sale being entitled to a warranty deed from the v.endor, and a good title iree from any incumbrance. The defendant De Graaf, who was then the owner by a recorded warranty deed, dated October 27, 1886, from defendant Ingersoll and her husband, setting forth a consideration of $40,000, reconveyed the property sixteen-days after the auction to defendant Ingersoll by a deed of bargain and sale, without covenants, and she tendered to plaintiff a deed with full covenants. Held, that plaintiff was justified in refusing to acept this deed and in his refusal to execute a purchase money mortgage to a stranger, to the transaction, and that he is entitled to recover the deposit paid by him, and the damages to which he has been subjected by reason of the breach of contract by defendant De Graaf.
    
      2. Same—When defective—Order for publication of summons upon an infant—Code Oiv. Pro., §'440—Order appointing guardian ad LITEM DEFECTIVE—CODE ClV. PRO., § 1586.
    
      Held, further, that the title was defective as to a part of the property, because the order for the publication of the summons upon an infant under fourteen, and residing outside the state, in a partition suit of the property, through which suit title was claimed, was defective by reason of omission to designate the post office in which the copy summons, etc., should be deposited, and the order appointing the guardian ad litem of the infant failed to direct the guardian to give a bond; such requirements being peremptory and essential; and such infant was not, therefore, a party to the suit.
    
      Henry Grasse, for pl’ff; James R. Marvin and James R. Henry, for def’ts.
   O’Gorman, J.

—The facts of this case sufficiently appear in the findings.

On the 14th day of February, 1887, the day of the auction sale of the lots purchased by the plaintiff, the defendant Be Graaf was the owner, in fee, by virtue of a deed from James H. Ingersoll and Ida, his wife, whereby the absolute and exclusive title in fee was vested in Be Graaf. This was a warranty deed with full covenants, setting forth a consideration of $40,000, and dated and duly recorded on the 27th day of October, 1886. Be Graaf continued to be the owner of record under this deed until March 1, 1887— sixteen days after the auction sale and the execution of the agreement of sale to the plaintiff, and the payment of a deposit by him on account of the purchase money to the auctioneer. Although the auctioneer did not make known the name of the owner at the time of the sale, yet the fact that Be Graaf was the owner was known to the public and to the plaintiff at the time of the sale by the public record of the deed vesting the title in Be Graaf. It was Be Graaf who gave to the auctioneer the instruction to sell, and supplied him with the map. He was present at the sale, received the deposit from the autioneer as soon as it was paid by the plaintiff, and plaintiff had good and sufficient reason to believe that Be Graaf was in fact, as he was of record, the owner and vendor at the time of the sale.

On March 1, 1887, Be Graff conveyed the lots to defendant, Ida M. Ingersoll, by a deed of bargain and sale without covenants, and she tendered a deed with full covenants to the plaintiff, which the plaintiff refused.

Testimony was offered by defendants at the trial, subject to objection on the part of the plaintiff, that the deed of October, 1886, from ingersoll and wife to Be Graaf, was intended only as a mortgage to him as president of the Bowery National Bank, and to secure payment of money lent by the bank to Ingersoll.

The objection that this testimony was incompetent and irrelevant should, in my opinion, prevail.

The plaintiff was justified in depending on the recorded deed from Ingersoll and wife to Be Graaf as conclusive evidence of title in him, and the deed from him to Ida M. Ingersoll in itself implied that the title was then in him, with full power and right to convey to her in fee. But were it possible to regard the deed to Be Graaf as only a mortgage in intent and effect, a new difficulty would then, arise, for an equity of redemption would then remain in James H. Ingersoll, who would then hold the position of mortgagor. By the terms of the contract of sale, the Elaintiff was entitled to a warranty deed, with covenants, rom the vendor, and De Graaf was the vendor through the auctioneer as his agent. Bigler v. Morgan, 77 N. Y., 312, 317, 318, 319; Barlow v. Scott, 24 id., 40; 3 R. S. (7th ed.), 2181, § 54.

The next objection is, that the plaintiff was required to execute a purchase money mortgage, not to the vendor, but to the Bowery National Bank, a stranger to the transaction, as far as plaintiff and his rights and interests were concerned.

The plaintiff was justified- in his refusal to execute this mortgage. It was not called for in his agreement. By his agreement, he was entitled to a good, perfect and indisputable title in fee, and to a full warranty deed, with covenants free and clear of all incumbrances—the deed to be given by the vendor.

The title tendered was defective as to one undivided fourth part of the property, which fourth part was vested in Theodore C. Bacon, an infant, under the age of fourteen years, and residing outside this state, and he was never properly made a party to a suit in partition of the property, through which suit De G-raaf and his grantor Ingersoll claimed title.

The affidavit on which the necessary order for service of the summons and complaint on this infant by publication was granted is objected to as insufficient.

I think that this objection cannot be sustained. Kennedy v. N. Y. Life Ins. Co., 101 N. Y. 489.

The order for publication made on the affidavit, however, seems to me defective, by reason of the omission to designate the post office in which the copy summons, etc., should be deposited, as required by section 440 of the Code of Civil Procedure. McCool v. Boller, 14 Hun, 73; Smith v. Wells, 69 N. Y., 602.

A further "defect appears in the order appointing a guardian ad litem of the infant. The order failed to direct the guardian to give a bond, in compliance with § 1536 of the code, which requires the filing of a bond with the clerk of the court, before the guardian can enter upon the execution of his duties; and that such bond cannot be dispensed with even although he is the general guardian of the infant. These requirements I regard as peremptory and essential.' Code, § 1536.

The result is that the infant defendant was not served with summons, etc., and was not made a party to the suit.; and until the infant has been served with summons, either personally or by substitution, no guardian ad litem could be appointed. Ingersoll v. Mangam, 84 N. Y., 622.

The guardian in this case did not file a bond at any time before the entry of the judgment in partition or until after the auction sale. Efforts were then made to cure this defect by orders nunc pro tune. These orders,mmc pro tune did not, I think, produce the desired result. The judgment in the partition suit was entered up more than a year before the auction sale. The orders amending the proceedings were not obtained until March, 1887, after the auction sale. No notice of motions for these orders appears to have been given to the infant in person or to the persons who had been parties in the suit. A consent to the entry of these amendatory orders signed by the attorney who had represented the defendants in that partition suit is relied on, but, as I think, without good reason; for his powers as attorney in the suit had expired at the time the orders to amend were applied for and obtained. Lyon v. Lyon, 67 N. Y., 252.

There is no way by which an infant can be brought into court in a partition suit but by personal or substituted service; and until that has been made a guardian ad litem cannot be appointed. Ingersoll v. Mangam, supra, 623.

In all litigations in which infants’ interests are concerned special care should be taken that they be protected by every safeguard that the law has provided in their behalf.

This is an action at law to recover the deposit paid by the plaintiff, and the damages to which he has been subjected by reason of the breach of contract by the the defendant, De G-raaf.

The burden is on the plaintiff to prove that the contract has been broken. Bayliss v. Stimson, 53 N. Y. Supr. Ct., 232.

The defendant, De G-raaf, through the auctioneer acting as his agent, contracted to give plaintiff a good, perfect and indisputable title, free from all incumbrances.

This, in my opinion, he has failed to do, and plaintiff is entitled to judgment against defendants for the relief demanded in his complaint.  