
    Albert M. Crouter, App’lt, v. Annie E. Crouter et al., App’lts, and Ascher Weinstein et al., Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed April 12, 1892.)
    
    
      t. Partition—Guardian ad litem—Jurisdiction.
    Where, in an action of partition, an order appointing a guardian ad litem for an infant defendant is entered before the expiration of six weeks after personal service without the state, it is a nullity and no jurisdiction is acquired of the person of the infant.
    2. Same—Purchaser—Merchantable title.
    While the judgment is not absolutely void, as the service upon the infants was complete December 12, 1890, and the judgment of partition and sale was not entered until September 3,1891, yet the purchaser at a partition sale has a right to expect and demand a marketable title, and one free from a reasonable doubt as to its validity, and will not be compelled to take property sold in an action where such defect exists, and it is the duty of the plaintiff to apply for the necessary relief by way of an amendment of the proceedings before he can be heard upon a motion to compel the purchaser to complete his purchase.
    Appeal from judgment of the supreme court, general term, first •department, reversing ofder directing purchasers to complete a purchase made at a partition sale.
    
      G. N. Bovee, Jr., and Wm. H. Arnoux, for app’lt; Henry A. Foster, for resp’ts.
    
      
       Affirming 43 St. Rep., 438.
    
   Maynard, J.

The purchaser upon the partition sale in this .action objects to the title offered upon three grounds. 1st. That the affidavit upon which the order was granted for the service of the summons by publication upon non-resident defendants was insufficient to confer jurisdiction on the j ustice granting it. 2d. That the bonds of the guardians ad litem do not conform to the requirements of § 1536 of the Code; and,'3d. That the order appointing a guardian for the non-resident infant defendants was a nullity, because made before the expiration of the period when the substituted service of the summons upon them became complete.

The first and second objections are, we think, not tenable. While the affidavit upon which the application for the order of publication was made is not as full as might be desired, it states sufficient facts to uphold the finding of the judge to whom it was presented, that the plaintiff would be unable, with due diligence, to make personal service within the state. Kennedy v. N. Y. L. Ins. & T. Co., 101 N. Y., 487.

The bonds are in form a substantial compliance with § 1536. They are executed to the people, and, while a separate bond for each infant might be the better practice, there is nothing in the-statute imperatively requiring it.

With reference to the third objection we have reached the conclusion that the court had no authority to appoint a guardian ad' litem until it had acquired jurisdiction of the person of the infant defendants. Such seems to be the plain inference from the provisions of §§ 441 and 471 of the Code when read together. The latter section provides that where the infant is over fourteen years-of age he may apply for the appointment of a guardian, in a case-like the present, within twenty days after the service of the summons is complete, as prescribed in § 441; which does not occur where personal service out of the state is made, pursuant to an order for publication, until the expiration of a time equal to that, prescribed for publication, being six full weeks from the time of service.

The infant defendants therefore could not make an application for the appointment of a guardian until forty-two days had. elapsed from October 31, 1890, when personal service was made without the state. Before that time the court had acquired and could acquire no jurisdiction of them for such a purpose and they were not competent to waive, by any affirmative act, the restrictive provisions of this act.

In Ingersoll v. Mangam, 84 N. Y., 622, it was held by this: court that a guardian ad litem can only be regularly appointed for an infant defendant after service of the summons personally or by the substituted mode as prescribed in certain specified cases, and that this was clearly implied by the language of § 471. Referring to the provisions of the section the court say (p. 625) The-application in both cases is to be made after the personal or substituted service of the summons has been made. The order forth e appointment of the guardian ad litem in this case authorized the guardian appointed to appear and defend the action in behalf of the infant; but the difficulty is that the order was unauthorized, because the court had no jurisdiction over the infant or to-appoint a guardian ad litem, when the order was made, by reason of the fact' that the infant had not been brought in and the-action had not been commenced against him by the service of the summons, which is the statutory mode by which the court acquires jurisdiction of the person or property of an infant. The-appearance by the guardian was not, therefore, an appearance by the infant and was not within § 424. The infant was incapable of" consenting to such appearance, and the guardian could not consent to the exercise of jurisdiction over him by an appearance-not preceded by the service of process.” The provisions of the Revised Statutes, which authorized proceedings for the appointment of a guardian ad litem of an infant party in a partition suit before service of process upon him, were all repealed upon the-adoption of the second part of the Code of Civil Procedure, by chapter 245 of the Laws of 1880, and the Code now regulates and controls the practice in such cases. A uniform method of procedure was established for the appointment of guardians for infant defendants in all actions and the decisions under previous-laws upon this point have no application to the question here involved. The order appointing the guardian ad litem was, therefore, a nullity and the proceedings in the action must be viewed in the same light as if judgment had been entered without the appointment or appearance of a guardian for the infant non-resident, defendants.

But the judgment is not absolutely void. The service upon the infants was complete on December 12, 1890, and the judgment of partition and salé was not entered until September 3,. 1891. The court then had jurisdiction of the subject matter and of the persons of all the defendants, but the infants not being-competent to plead in their own behalf, and no valid appointment, of a guardian to represent them having been made, they had not. had their full day in court when the judgment was entered, and its entry was premature. It is voidable, however, only at their election and upon their application when seasonably made. McMurray v. McMurray, 66 N. Y., 175; Feitner v. Hoeger, 14 Daly, 470; 15 St. Rep., 377. The defect is also curable if the proper proceedings are taken for that purpose. But the burden of causing the necessary steps to be taken to conclude the defendants in this action cannot be cast upon the purchaser at the sale. He has a right to expect and demand a marketable title and one free-from a reasonable doubt as to its validity. Jordan v. Poillon, 77 N. Y., 518; Fleming v. Burnham, 100 id., 1; Miller v. Wright, 109 id., 194; 14 St. Rep., 811.

The plaintiff is bound to see that the action has been brought and prosecuted in accordance with the provisions of law regulating the procedure in such cases, and if an essential act has been omitted or unseasonably taken, which may render the judgment ineffectual as to any of the parties in interest, it is his duty to-apply for the necessary relief by way of an amendment of the proceedings before he can be heard upon a motion to compel the-purchaser to complete his purchase.

The order appealed from must, therefore, be affirmed, with, costs.

All concur.  