
    McMURRAY against McMURRAY.
    
      Supreme Court, Third District; Special Term,
    
    
      October, 1870.
    Guardian ad litem fob Infant Defendants.—Ib-BEGULABITT.—EbEOB IN FACT.
    It is not a mere irregularity to take a judgment against infant defendants without the appointment of a guardian ad litem; it is error in fact.
    Under the former practice, the remedy was by writ of error in fact. Now it is by motion to set aside the proceedings.
    
      By analogy to the old practice, that remedy ought to be limited by the expiration of two years after the judgment, or after the disability ceased.
    Motion to set aside all proceedings subsequent to the service of summons, including judgment of foreclosure and sale, on the ground that no guardian ad litem was appointed for certain infant defendants.
    The action was brought by John Gr. against Caroline A. McMurray and others.
    
      Banker & Rising, for the moving parties.
    
      M. I. Townsend, and others, for the purchasers and for the plaintiff.
   Learned, J.

The papers on this motion are voluminous, but the facts on which the decision must turn are few and simple.

In 1860 the plaintiff commenced the action above entitled, for the purpose of foreclosing a mortgage given by Robert D. McMurray, the deceased, on land in Troy. The land was one hundred and eighty feet wide, front and rear. At the time of the commencement of the action, Charles D. McMurray, Frances E. McMurray and Mary A. McMurray were seized in fee in remainder, each of an undivided fourth of three undivided fifth parts of the equity of redemption in a part of the mortgaged premises, being one hundred and twenty-eight feet front and rear, in which Mrs. Caroline A. McMurray had a life estate for her own life.

Francis E. was born July 5, 1840 ; Charles D. was born October 31, .1842 ; and Mary A. was born March 14, 1845 ; and at the time of the commencement of this action they were, therefore, all infants. The summons and complaint was served as follows : On Francis E., July 27, 1860 ; on Charles D., July 27, 1860 ; Mary A. not being then a party to the action.' Subsequently, in December, 1860, the summons and complaint were amended by adding Mary A. and others, as parties, and by inserting in the complaint new allegations as to the contents of the will of the mortgagor; and the amended summons, with notice of object of suit, was served on Mary A., January 31, 1861. No service of the amended summons and complaint was made on Francis E. or Charles D.

No guardian ad litem was ever appointed for any of these infants, and they did not appear or answer in the action by guardian or otherwise.

On March 30,1861, an order of reference to compute the amount was granted, which did not require the taking of proof of facts, or the examination of plaintiff as to payments ; and thereupon on the same day the usual judgment of foreclosure and sale was taken, and the roll filed.

The property was sold under the same, about April 22, 1861, Francis E., Charles D. and Mary A. being still infants. The referee’s report of sale cannot be found. By his deed it appears that the mortgaged property was purchased by the plaintiff on that sale for fourteen thousand dollars. The judgment was for ten thousand nine hundred afid sixty-six dollars and thirty-seven cents due on the mortgage, with three hundred and one dollars and fifty-one cents for taxes, and one hundred and sixty-seven dollars and fifteen cents costs ; all of which, with interest and expenses, amounted on the day of sale to eleven thousand four hundred and seventy-five dollars and thirty-eight cents. Subsequently, the plaintiff, having thus ob-' tained the title, sold the premises ; and by successive conveyances they have come to be held in severalty by a number of persons, not parties to the action, but served with notice of this motion.

The mortgaged premises are now divided into eight city lots. The one hundred and twenty-eight feet, in which Francis E., Charles D., and Mary A., had an interest, take up five of these lots and a part of another. All of these eight lots have been built upon, at an expense, in the aggregate, of over thirty thousand dollars. This building was commenced in the spring of 1863, and continued about a year; and partly from these improvements and partly from the prosperity of the city, these lots have greatly increased in value, since the sale under the foreclosure.

It is not claimed that the present owners of these lots had any actual knowledge of the alleged defect.in their title ; and, on the other hand, it is averred that the moving parties, Charles D., Francis E. and Mary A., must have seen and known of the improvements, as they were put on the lots.

Caroline A. McMurray died March 10, 1869 ; and the moving parties were up to that time under the belief that they could not assert any rights which they had in the property, until after her death.

One other fact may be mentioned, which perhaps is not very material. Before the foreclosure suit was commenced, the plaintiff, John G. McMurray, bought from the executrix of the mortgagor (she having the power to sell), the fifty-two feet part of the mortgaged premises, in which the moving parties have no interest. He did not put the deed on record until 1870; and he proceeded in the foreclosure without regard to this purchase. The whole mortgaged property was sold by the referee, and purchased by the plaintiff.

There is some conflict of testimony as to whether or not the lots sold for their full value, and some question as to whether (as would seem .from the deed) they were sold in one parcel, or in several parcels. But these are matters which cannot come up on this motion. Yet I may say in passing, that from this unrecorded purchase of the fifty two feet, from the want of proper order of reference to take proof of facts, and to examine the plaintiff as to payments, from the selling of the property in one parcel, from the payment of the surplus on the foreclosure of two thousand five hundred and twenty-four dollars and sixty-two cents to the executrix of the mortgagor, and not to his devisees (some of whom are the moving parties), and from the repayment of that surplus by the executrix to this plaintiff, I am led to think that the interests of these moving parties actually suffered by the want of a guardian ad litem.

The questions to be settled here are: 1. Is the want of a guardian ad litem a mere irregularity, or does it render the proceeding erroneous or void? 2. Is the remedy asked on this motion the proper relief? 3. Is the motion made in time ?

There is a defect in this judgment, not referred to on the motion, but apparent on the examination of the roll. After the service of the summons and complaint on Francis E. and Charles D., the summons and complaint were amended; and the amendment included the insertion of new allegations in the complaint. This amended complaint was not served on them. Now it is said in the case of People v. Woods (2 Sandf., 653), that a judgment obtained thus is irregular, and must be set aside. “It by no means follows,”' says Judge Saxdford, “because the defendant did not defend the original complaint, that he was not desirous to answer to the complaint as amended.” The Code itself provides (§ 146), that if the complaint be amended, a copy must be served on the defendant. And the right to answer is a substantial right (Low v. Graydon, 14 Abb. Pr., 444). The neglect to serve on these two defendants was, at the least, a great irregularity. But too much time has elapsed, and too many innocent parties are interested, for the judgment to be disturbed on that ground.

I proceed to examine the question as to the effect of the want of a guardian ad litem. And here it should be observed that the position of an infant defendant is different from that of an infant plaintiff. There are several cases in which an adult defendant has sought to set aside proceedings on account of a neglect in the infant plaintiff to procure the appointment of a guardian ad litem. Such are the cases of Rutter v. Puckhofer (9 Bosw., 638; Fellows v. Niver, 18 Wend., 563; Parks v. Parks, 19 Abb. Pr., 161), cited by the counsel opposing this motion. But these do not touch the point involved here. They are cases in which the defendant, by pleading to the merits, had waived the defect in the plaintiff’s proceedings. This is pointed out in the case of Fairweather v. Satterly (7 Robt., 546).

The infant plaintiff comes voluntarily into court. If he comes irregularly, the defendant should object promptly. By pleading in bar under the old practice, or answering under the present, the defendant omits to object, and waives the defect.

But an infant defendant is differently situated. He is brought into court without his consent, and the plaintiff claims some relief against him. He must defend his rights, or by silence admit the plaintiff’s claim. He cannot appoint an attorney to appear for him. Indeed, he maybe an “infant” in the ordinary meaning of the word, and incapable of 'acting. Therefore it is that the law has provided him a protector; and therefore the plaintiff, if he would have relief against the infant, must see, at his peril, that this protector is appointed.

The Code (§ 115), says that when an infant is a party, he must appear by guardian. This is no new provision, and the old authorities will therefore shed light on the effect of disregarding it.

In Mockey v. Grey (2 Johns., 193), it was held to be error for an infant to appear by attorney. In Alderman v. Tirrell (8 Johns., 418), the same doctrine is held. In Bliss v. Rice (9 Johns., 160), it was held to be error for an infant to appear in person and not by guardian. In Hillyer v. Larzelere (9 Johns., 161), a judgment by default against an infant in an action of dower was set aside because no guardian had been appointed.

In De Witt v. Post (11 Johns., 460), a verdict had been rendered against the defendant, who was an infant, and had appeared by attorney. The judgment was on writ of error recalled for this error of fact.

In Arnold v. Sandford (14 Johns., 417), it was again-held that for an infant to appear by attorney and not by guardian, was error in fact; and this same doctrine was again affirmed, as well settled, in Camp v. Burnett (16 Wend., 48.)

In Comstock v. Carr (6 Wend., 526), an infant defendant appeared by attorney and obtained judgment non pros. The judgment was set aside.

Gosling v. Acker (2 Hill, 391), is to the same general effect.

It will thus be seen that by a uniform series of decisions under the former practice, judgments against infants were set aside, reversed or recalled for error of fact, on the ground that no guardian ad litem had been appointed. The remedy in the supreme court was by writ of error in fact. That has been abolished by the Code; but we shall find the same general principle enforced in other ways.

The first case is that of Kellog v. Klock (2 Code R., 28), where a judgment against an infant was set aside for want of a guardian ad litem, the ■ infant's counsel urging that as the writ of error was abolished and an appeal from a judgment by default did not lie, a motion to set aside was proper.

In the case of Boylen v. McAvoy (29 How. Pr., 278), the plaintiff had a verdict against the defendant,, who had appeared by attorney, but who, at the time of the ■ trial,' was four months under twenty-one years. Judge Johnson says of the appearance of an infant by attorney, that “it was an error of fact for which a judgment would be'reversed or set aside. It was never curable by the statute of jeofails, and cannot be" obviated in this way (referring to the motion thus made) against the defendant’s objection, although he is now of full age. He may, if he chooses, waive the irregularity, but the'court cannot compel him to abide by his answer and the trial under it, if he elects not to be bound. The statute and the rules of practice which require an infant to appear by guardian ad litem, hada substantial object in view,—the protection of such persons against what the law adjudges to be their own incompetency to choose attorneys or to conduct their own litigation with suitable prudence and discretion.”

Our own statute of jeofails does not include this defect. By 2 Rev. Stat., marg. p. 424, § 7, subd. 7, judgments in favor of an infant were not to be reversed because he appeared by attorney, but the statute is silent as tp those against him.

The' case of Harvey v. Large (51 Barb., 222), holds that a judgment in a justice’s court against an infant where no guardian is appointed, would be void.

In Fairweather v. Satterly (7 Robt., 546), a verdict had been rendered'and judgment entered against an infant defendant who had appeared by attorney and answered. Judge Jones reviews the cases, and says : “I am confirmed in the view which I took at the argument, that an infant cannot waive the objection that his rights have not been protected in the manner prescribed by lawand the judgment was set aside.

It was strongly urged on the present argument that this defect was a mere irregularity. The question as to what defects are mere irregularities, is discussed in the case of Clapp v. Graves (26 N. Y., 418), in which the court quotes with approval the language of Justice Coleridge in Holmes v. Russell (9 Dowl., 487) : “ It is difficult sometimes to distinguish between an irregularity and a nullity; but I think the safest rule to determine what is an irregularity and what is a nullity, is to see whether the party can waive the objection. If he can waive it, it amounts to an irregularity, if he cannot, it is a nullity.”

If this test be applied to the present case, we are to ask could these infants have waived this defect. I suppose they could not. So long as they were infants (and they were infants until after the judgment), they could waive nothing. It is even the well known doctrine that'the guardian ad litem cannot by his answer admit the allegations of the complaint. The cases of Fairweather v. Satterly and of Boylen v. McAvoy, both recognize this principle fully, that the infant defendant, while an infant, cannot waive the defect that he did not appear by guardian.'

There is one case which needs examination; Croghan v. Livingston (17 N. Y., 218; S. C., 6 Abb. Pr., 350). The decision in that case was, that the omission by the guardian ad litem to-file his bond is a mere irregularity, and that the bond might be filed nunc pro tuno. This is all that the case decides. In the course of the opinion Judge Pratt says : “I apprehend that a case cannot be found holding that a judgment or decree when they appeared by attorney, would be void ;” and further : “a failure therefore, to provide this agent (a guardian ad litem) would not, it would seem, affect the jurisdiction of the court, but was matter of error 5 citing Austin v. Charleston Female Seminary (8 Metc., 196).

In that case last mentioned, a partition suit was commenced. No guardian ad litem was appointed, and a partition was made. An infant defendant, a feme covert, and owner of one undivided sixth, upon coming of age, conveyed to A., who had knowledge. the undivided one sixth of that part of the land which had been set off to B.. and A. sued to recover the land.

It was held by the court that the omission to appoint a guardian ad litem did not make the judgment void, but voidable by writ of error; and that it could be avoided only by the infant, or her privies in blood, not by privies in estate; that a party to an erroneous judgment who is not entitled to a writ of error may avoid it on motion, or by plea in a court of competent jurisdiction.

The case of Rogers v. McLean (34 N. Y., 536; S. C., 31 How., 279), is substantially to the same effect as Croghan -y. Livingston ; affirming the right of the court to amend the proceedings on which a guardian ad litem was appointed. So that neither of these two cases) notwithstanding the language in the opinions), involved in any way the effect of a want of a guardian ad litem. In both of those cases, a guardian ad litem had been appointed.

From this review of the cases, there can be no doubt that it is not a mere irregularity to take judgment against an infant defendant, without the appointment of a guardian ad litem for him. I do not mean to say that the defect makes the judgment void; for it is not necessary to express any opinion on that point. It is, in the accurate language of the old practice, error in fact. The infant, in some cases, could have the judgment reversed ; and in the case of a judgment in this court, it would be recalled by writ in the nature of a writ of error coram noMs, to be issued, not of course, but on application to the court (See Ferris v. Douglass, 20 Wend., 626). And nothing that the infant could do during infancy, waived his right to this relief.

As has been before remarked, the writ of error is abolished. There seems to be no other mode of ob-taming the relief than by motion to set aside the judgment. It is, I think, to be regretted that the old practice (or something similar), in this particular, is not in force. For this relief is a matter of strict law, and should properly be sought and enforced by strict forms and proceedings; while the papers on a motion like the present inevitably bring up equitable considerations. This proceeding is not one which should be addressed to the varying discretion of judges. Such considerations as those of the increased value of the property, the knowledge of the moving parties that innocent persons were building on the property, and the alleged delay in making a motion, ought not to affect a question which should be one of strict law. And if such matters were to be considered, it would be necessary to remember that, though the occupants of these lands bought innocently, still they are chargeable with notice of their own title. They were bound to know that these moving parties had a fee in remainder in the land, and they were bound to see that such remainder had been barred. Indeed, a very hasty examination of the judgment roll would have shown them the positive fact of infancy of these moving parties and the neglect to protect their rights by the appointment of a guardian.

But I think that this motion should be decided on the same principles as would have applied to the old writ of error in fact, and-not on the so-called equitable doctrines which prevail on motions addressed to the discretion of the court. I am fully satisfied that, if this motion is made within proper time, the judgment ought to be set aside, as a matter of right.

It remains then to consider whether the moving parties have made their motion within the proper time. I have already said that the defect complained of is not an irregularity; so that the provision of the Revised Statutes, limiting the time to one year, does not apply (2 Rev. Stat., marg. p. 359, § 3). ¡Nor does section 174 of the Code apply to this case. And for the reason that this is not a mere irregularity, the parties are not bound to move at the earliest possible opportunity. Still there should be some termination.

The moving parties severally came of age, July 5, 1861, October 31, 1863, and March 14,1866. They seem to have thought that they could not proceed to enforce their rights until the death of Caroline A. McMurray, on March 10, 1869. But this was a mistake.. They could have severally moved as soon as they came of age; and they have therefore delayed respectively about nine, seven and four years. ;

I regret that there is not, as there should be, some positive statutory limitation to the right to make such a motion as this. It would be intolerable that such a motion should be allowed at any, the most distant, time after judgment; even upon showing the fullest excuse for delay. For, in the lapse of time, rights of new parties arise which ought not to be disturbed. It is very objectionable also, that the time within which such a motion may be made, should depend on judicial discretion. The feelings of judges vary. One considers almost anything an excuse for delay; another admits no excuse. This may do in motions addressed to the discretion of the court; but it is bad in matters of. strict right. In the present case, I do not think that the ignorance of their rights stated by these moving parties is such a complete excuse for delay, that they may make this motion at any time when they learn what their rights are. They are bound to know their rights, according to the old maxim, ignorantia legis nenvinem, excusat. Thus, ignorance of the statute of limitations does not prevent the statute from running. ■

Under the old statute, a writ of error (including the writ in the nature of a writ of error cor am, nobis), must have been brought within two years. If the party against whom the judgment was recovered were an infant, he might bring the writ within two years after that disability was removed. That time was liberal; and though I am not aware that by any existing provisions that limitation is legally applicable to this motion, still I do not think I shall be much astray if I follow the wisdom of former legislation;

If these moving parties had sought their relief before the Code, they would have been strictly limited to the two years after they had severally come of age. This limitation would have been wholly irrespective, on the one hand, of their knowledge or ignorance, and on the other, of the acts of the parties claiming' under the judgment; although by this remark I do not mean to say how the reversal of the judgment would affect a sale made under it (Holden v. Sackett, 12 Abb. Pr., 473).

I shall hold, therefore, both by analogy to the old writ of error, and also as my conclusion on the circumstances of this case, that the moving parties have not made their motion within such time as entitles them to the relief asked; and I shall deny. the motion. The moving parties claim that "the judgment is void. If they are correct in this view, they, may, perhaps, enforce their rights by an action of ejectment, or by an action to redeem. The denial of this motion, therefore, will be without prejudice to any action of ejectment, or to redeem the mortgage, or of any other nature, which these parties might otherwise lawfully bring.

Ten dollars costs of motion to be allowed to each of the several attorneys or firms who appeared.  