
    David L. Reed, Resp’t, v. Alfaretta Reed et al., Resp’ts, Abraham Bernheimer, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed December 13, 1887.)
    
    1. Practice—Partition—Who can maintain action—Jurisdiction, Code Civ. Pro. , § 1538.
    Although a tenant by the curtesy may not, under Code Civ. Pro,, § 1538, maintain partition because not a joint tenant, or tenant in common with the remainderman, yet the defect is not jurisdictional, and a decree of sale in such an action if erroneous is not absolutely void, and as against those made parties to the action a sale under the degree gives a good title. Following Cromwell v. Mull et al., 97 N. Y., 209.
    " %. Same—Irregularities that do not affect title.
    In such an action certain infants were made parties, but the guardian ad litem, appointed by the court, was not required to give bonds, as prescribed by the Code The sale on said partition was reported to the court and duly confirmed. The purchaser at said sale moved to be relieved from his purchase on the ground that the title offered .was not good, and the plaintiff moved that he be compelled to complete his purchase. Meld, that an order compelling the purchaser to complete the sale was proper. That the court had jurisdiction of the parties and of the subject-matter of the partition action and as no appeal was taken its decision was binding. That the title offered was good.
    Appeal from an order of the supreme court, general term, first department, affirming an order of the special term compelling a purchaser to take title. In the partition proceedings the court did not require the guardian ad litem, to give a bond in favor of the infants.
    
      This action was brought to procure the sale or partition of certain premises in the city of New York, and a division or distribution of the proceeds among the parties to the-action, as their interest might appear. A sale was ordered,, and one Bernheimer became purchaser at the price of $10, - 125. In compliance with the conditions of the sale he paid to the referees ten per cent on the amount bid by him, viz:: $1,012.50, and agreed to pay the residue on June 11, 1887. At that time, however, he refused to pay the balance of his-bid, alleging that the title was defective for the following, among other reasons: First. That the plaintiff had no-such interest in the real estate as would entitle him to-maintain the action. Second. That he was “prohibited by the provisions of section 1538 of the Code of Civil Procedure from being a plaintiff in the action;” that some of the defendants, “ at the time of the bringing of the action,, were infants, and the judgment and sale not binding upon, them ”
    He claimed that for these and other reasons not important, the title to the premises was a doubtful and unmarketable one. The sale was reported to the court and duly confirmed, Bernheimer moved at special term to be-relieved from his purchase, and the plaintiff moved at special term that Bernheimer be compelled to complete his purchase. Bernheimer’s motion was denied, the plaintiff’s-motion was granted, and upon appeal by the purchaser to-the general term both orders were affirmed. He now ap - peals to this court.
    
      Edward D. Bettens, for app’lt; Bailey & Sullivan, for resp’ts.
    
      
       Affirming 11 N. Y. State Rep., 524.
    
   Danforth, J.

It appears by the report of the referee that the plaintiff’s interest in the premises was that of a tenant by the .curtesy, and .that as such he was entitled to-the possession and profits of the lands and premises described in the complaint during his natural life; that the defendant AJfaretta Beed was seized in fee simple, subject to the plaintiff’s estate, of one equal undivided one-half' part of those premises; that the other defendants were infants under the age of twenty-one years, and were seized in fee simple, subject to the same rights, each of one equal undivided one-sixth part of the premises. The principal contention of the appellant is placed upon the provisions of' section 1538 of the Code of Civil Procedure, which, after naming the necessary parties in partition, declares that- “ no person other than a joint tenant or tenant in common of the property shall be a plaintiff in the action.” The same section provides that every person having an undivided share in possession or otherwise in the property in. question, as, among others, “a tenant by the curtesy” must be made a party to such an action. It is plain, therefore, the objection is simply that he stands upon thé record as plaintiff and not as defendant.

The judge at special term, put his decision upon the case of Cromwell v Hull (97 N. Y., 209), decided in October, 1884. In that case the same fact appeared, and this court held that if a plaintiff in a partition suit was not authorized to maintain the action because not a joint tenant or tenant in common with the remainderman, still the defect was not jurisdictional, and the decree, if erroneous, not absolutely void. The determination applies to and covers this case, unless the appellant is right in his contention that a different rule now prevails. The partition suit in the case cited was before the.Code. That, however, can make no difference. The court in the present instance had jurisdiction of the parties and of the subject matter of the action, and from the decision made no appeal was taken. All the parties, therefore, are bound. The judgment in Cromwell v. Hull (supra), covers the case, and it is unnecessary to add to the discussion. We think the title offered to the purchaser was a good title, and his motion to be relieved was properly denied.

The order appealed from should, therefore, be affirmed.

All concur, except Rapallo, J., absent.  