
    N. Taylor Phillips et al., Appellants, v. Kate R. Wilcox et al., Defendants. Matter of the Application of Townsend Wandell, Respondent, to be Relieved from Purchase.
    (New York Superior Court
    General Term,
    May, 1895.)
    
    On foreclosure of a mortgage given by one to whom a testamentary trustee had conveyed the property, without consideration, under an agreement for an immediate reconveyance, neither the beneficiaries under the will nor the heirs at law of the testator were made parties, which fact was not known to the purchaser at the time of the sale. Held, that this constituted such a defect as to justify the court in relieving the purchaser from his purchase.
    Appeal by plaintiff from order relieving petitioner from his purchase on a foreclosure sale.
    
      Thomas W. Butts, for respondent.
    
      JEdwm B. Smith, for appellants.
   Sedgwick, Oh. J.

The respondent had purchased at a sale on foreclosure of a mortgage of real estate. He afterward made a motion to be relieved from the purchase. An appeal is now taken from the order made, which relieved him.

There were several objections made to the title which the referee would give if the sale were carried through. The answer to most of these objections was that the respondent knew their existence and 'their character before he bought, .and, therefore, that he could not claim relief. This position will not be passed upon here. It is unnecessary, for there was one defect, which was the want of proper defendants in the' action. This want he had not learned at the time of the sale and he was not bound to make himself acquainted with it.

The title came through the will of Benjamin Albro; he devised the property in question to his executor and executrix in trust to collect the rents and profits and pay them over to certain persons, five in number, annually. The fourth provision is: Upon the death of said Edith C. Polhemus,” one of the beneficiaries that had been named, I give and devise and bequeath all of the said property and estate so devised to said trustees, and direct said trustees to convey the same, to the following-named four children of said Edith C. and Abraham Polhemus, Junior, viz.: Ellen Augusta, Eemona Leonora, Abram Clifford and said Benjamin Albro, etc., etc., subject, however, to the said trust and right to said trustees to receive the said rents, issues and profits ” for the purposes of the trust that had before been made in the will.

If the will were valid, at least the remaindermen under the 4th clause should have been made parties defendant; or if the will were invalid as to its disposition of the remainder, then the heirs at law of the testator should have been made parties.

The only executor and trustee who qualified under the will was Ellen H. Wilcox. She was made a party defendant here. She, as trustee, had conveyed the property to one Kate E. Wilcox. The conveyance was without consideration. It was accompanied with a verbal agreement that Kate E. Wilcox should forthwith reconvey to Ellen H. Wilcox, as trustee. While the paper title was in Kate E. Wilcox she gave to the present plaintiffs the mortgage in action. It is at least doubtful that Ellen H. Wilcox had power under the will to convey. It is at least doubtful that the plaintiff took the mortgage without notice of the character of the transaction of the conveyance. The property, after the giving of the mortgage, was. reconveyed to Ellen H. Wilcox and again reconveyed to her by Kate E. Wilcox; on the whole, the petitioner had the right to take the position that it was. doubtful whether Kate E. Wilcox had ever had any title in the premises and that Ellen H. Wilcox was the legal owner if the will were valid. Under these circumstances, irrespective of notice to petitioner of certain defects, he had a right to object, as has been before stated, that proper parties had not been made defendants.

The disposition of the question of costs was correct. The plaintiffs were responsible for the nonjoinder of the proper parties and the purchaser was without fault.

Beekman, J., concurs.

Order affirmed, with ten dollars costs and disbursements.  