
    Mary Noonan, Pl’ff, v. Christian Brennemann, Def't.
    
      (New York Superior Court, General Term,
    
    
      Filed February 14, 1887.)
    
    Mortgage—Foreclosure—Necessary parties.
    One Meehin, while seized and possessed of the real estate in question, executed a mortgage, which was afterward foreclosed. Thereafter said Meehin died seized of said real estate, leaving him surviving his widow, certain heirs-at-law and a last will, which was duly probated, which directed his executrix to sell all his real and personal property. The testatrix was to divide the proceeds and hold portions thereof upon certain specified trusts. The executrix did not sell the real estate as directed. Afterward the said mortgage was foreclosed, the testatrix, who was the widow of Meehin, was made defendant individually and as executrix, but none of the other persons named in the will or heirs of the testator were made parties. The defendant herein bought said property on the foreclosure sale, and afterwards agreed to sell it to plaintiff. This action was brought to recover money deposited on the contract and the expenses of searching title on the ground that the title of defendant was not good. Held, that defendant only acquired the title of the parties to the foreclosure suit and that the fee vested in the heirs-at-law had not been divested.
    Exceptions taken by the defendant and ordered to be heard in the first instance at general term.
    Francis Meehin died in December, 1874, seized of premises No. 95 Henry, street. He left a widow, Margaret M. Meehin, a son, Joseph 0. Meehin, and a grandson, John Francis Morris, son of a deceased daughter, his widow and heirs-at-law.
    By his will admitted to probated in New York county, April 7, 1885, he appointed his wife, Margaret M., sole executrix, with directions to dispose of his real estate, at public or private sale, as soon as possible, and out of the proceeds to pay his debts, funeral expenses, mortgages and liens, and gave one-half of the net proceeds, after such payments, to his wife absolutely, and the other to be held by her in trust for his grandson, John Francis Morris, to be paid over to him when he became of age; and in case of his death before he attained such age, he gave one-half thereof to his (the testator’s) granddaughter, Mary Ann Meehin, daughter of Joseph C. Meehin, to be held in trust until she became of age, the principal then to be paid over to her; and the other one-half to his brother, Patrick Meehin, residing in Ireland.
    The executrix took no steps whatever to sell the premises in question, but from the testator’s death until September, 1877, all the parties continued to live on the premises, practically electing to have the trustee hold the same in lieu of the proceeds of the sale for the benefit of the trust.
    On August 9, 1877, judgment of foreclosure and sale was entered in a suit wherein Julius Hitchcock was plaintiff and Margaret M. Meehin, individually and as executrix, with others, were defendants, and the premises were sold at public auction to the defendant, and conveyed to him by Edward D. Gale, referee, by deed dated September 19,1877. This foreclosure was of a mortgage on the premises made by the testator in his lifetime. Mary Ann Meehin, individually and as executrix, was made defendant, but none of the other persons named in the will or heirs of the testator were made parties.
    In April, 1885, the defendant contracted to sell the property to the plaintiff, and counsel of the plaintiff rejected the title on the ground that Margaret Meehin, in her capacity as trustee, was not made a party defendant, and that Joseph 0. Meehin, John F. Morris and Mary Ann Meehin, heirs-at-law of the testator, were not made parties defendant, and that Patrick Meehin, a legatee, vras not made a party.
    Plaintiff thereupon sued to recover tire amount paid on the contract, $500, and her expenses of searching title, which amounts in all are admitted to be $809.35.
    The sole question in the case was, did the plaintiff acquire by his purchase under the foreclosure in question a good title without any of the omitted persons having been made parties to the suit.
    
      Edgar Whitlock, for def't; J. L. Cadwalader, for pl’ff.
   Ingraham, J.

It is clear that under the will of Francis Meehan the fee of the real estate of the testator vested in his heirs-at-law, subject to the power of sale contained in the will. Lent v. Howard, 89 N. Y., 177.

Before the defendant could acquire a valid title to said property in fee, he must in some way acquire the fee vested in the heirs-at-law of Meehan. The action to foreclose the mortgage that was a lien upon the property at the death of the testator, did not divest the heirs-at-law of the fee vested in them; they were not parties to that action.

The deed of the referee under the judgment in the action conveyed the estate, of the parties to the action, but did not affect the property or estate of those not parties. The legal title is still vested in the heirs-at-law. That the testator intended to convert the real estate into personalty does not affect the method by which the property is to be conveyed. As between the executrix and the trustee and the beneficiaries, the proceeds of the land when sold would be personal and not real property, but the fee of the land vested in the heirs,and itpnust in some way be conveyed to the defendant to enable him to comply with his contract. That could be done by an execution of a power of sale, because the fee vested in the heirs-at-law was subject to the execution of that power, but such power of sale was not executed; it could be done by the foreclosure of the mortgage, but as a sale under the judgment in the action to foreclose would only affect the title of the parties to the action, in order to divest the heirs-at-law of the fee vested in them, they must be parties to such action.

It is unnecessary to determine what interest in the property defendant acquired by the deed from the referee in the foreclosure action. Plaintiff was not bound to accept an equitable title, and as the fee of the premises was not vested in the defendant, his conveyance was not a compliance with the contract.

The exceptions should be overruled and judgment ordered for plaintiff on the verdict, with costs.

Sedgwick, Oh. J., concurs.  