
    Laura A. Prior, by Guardian, v. Thomas E. Prior et al.
    
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 19, 1888.)
    
    1. Partition—Action for—Code Civ. Pro., § 1533—When complaint SHOULD BE DISMISSED—EFFECT OF UNAUTHORIZED JUDGMENT OF SALE.
    An action for partition of real estate having been brought in a case provided for by Code Civil Procedure, g 1533, and the report of the referee showing that partition could not be made without great prejudice to the owners, contrary to the direction of the statute the complaint was not dismissed, but judgment directing a sale was entered and sale made pursuant to it and confirmed. Held, that this excessive exercise of judicial power was error which, if not waived, rendered the interlocutory judgment voidable, but which might not necessarily have been available on review, no-exception having been taken on the coming in of the referee’s report, and no objection having been made to such judgment or to the sale or its. confirmation.
    
      2. Same—Infant defendants represented by guardian ad litem bound BY JUDGMENT EQUALLY WITH ADULTS.
    
      Held, that the judgment and proceedings subsequent thereto were equally binding on infant defendants, respresented by guardians, as upon adults.
    3. Same—Order setting aside erroneous judgment and sale—When IMPROPER.
    
      Held, that an order setting aside the judgment, and subsequent proceedings founded upon it, was improperly granted.
    Appeal from an order of Erie county court. The action was brought in the county court for partition of certain land in the city of Buffalo. Interlocutory judgment was entered November 17, 1881, reciting that partition of the premises could not be made without great prejudice to the parties, as appeared by referee’s report, and directed a sale of the land and division of the proceeds between the parties according to their interests.
    The sale was made pursuant to the judgment December 10, 1881, and on January 20, 1882, a final judgment was entered confirming the sale, directing distribution of the proceeds, etc. The purchase was made by Elizabeth A. Hall, wife of the defendant, Jacob V. Hall. The latter had a life estate in the land. And the plaintiff, Laura A. Prior, and the defendant, Thomas E. Prior, had the estate in remainder. The purchaser afterwards conveyed some of the lands to parties who purchased in good faith. In August, 1887, a motion in behalf of the parties Prior was made to set aside the judgment directing the sale and all subsequent proceedings founded upon it. The motion was granted by the order of the county court, except so far as was essential to support the title of those persons who had taken conveyance from Elizabeth A. Hall, the purchaser before mentioned. And a reference was ordered to take an account, etc. She and the defendant, Jacob Y. Hall, appeal from the order of the county court.
    
      O. O. Cottle, for app’lt; Roberts, Alexander & Messer and Giles E. Stilwell, for resp’ts.
   Bradley, J.

The action came within the provisions of section 1533 of the Code of Civil Procedure, which then declared that the premises in such case could not be sold, and that when it appeared that partition could not be made without great prejudice to the owners, the complaint should be dismissed. The direction of the statute was not observed, but contrary to it, judgment directing the sale was entered and pursuant to it sale followed. When the review of an order of the county court denying motion to set aside the sale was here it was held that the judgment and sale were not void, because the county court had jurisdiction of the subject of the action and of the parties to it. 41 Hun, 613.

The right of the plaintiff as tenant in common with the defendant Prior of the estate in remainder to bring the action for partition subject to the interest of the life tenant was given by the provisions of that section, which did not contemplate that the latter would be a necessary party to the action. The right, however, to make him a party defendant in such case is given by section 1532. Before this statute, according to the weight of authority, such an action could not properly be brought by a party not having the possession, actual or constructive, of the premises sought to be partitioned. And a plaintiff was not permitted to unite as defendants those not seized of a like estate in common with him. Sullivan v. Sullivan, 66 N. Y., 37. ‘ But if _ he did so and proceeded to final judgment, it was not without jurisdiction of the parties as well as the subject-matter, and it was effectual as against an attack collaterally. Howell v. Mills, 56 N. Y., 226. And although the statute declares that “Ho person other than a joint tenant or a tenant in common of the property shall be a plaintiff in the action” (Code Civ. Pro., § 1538), if as plaintiff a person having the present estate brings such an action against those having only a vested estate in remainder and prosecutes it to judgment, it is within the jurisdiction of the court, the judgment and its execution cannot be questioned collaterally, and it will be deemed conclusive upon the parties. Cromwell v. Hull, 97 N. Y., 209; Reed v. Reed, 107 id., 545; 12 N. Y. Rep., 481; affirming 11 N. Y. Rep., 524. And such is the applicable effect declared by statute upon the confirmation of the sale by final judgment. Code Civ. Pro., §§ 1557, 1577. In view of this situation the question arises whether the county court had power to make the order appealed from. For if that court possessed such power the order must be affirmed, as this court will not review the-exercise by the county court of its discretion. Reilley v. D. and H. C. Co., 102 N. Y., 383; 2 N. Y. State Rep., 419.

One reason urged in support of the motion and of the-power of the court to grant it is in the fact the moving parties were infants when the sale of the property was-directed by the judgment and made. It appears that Thomas E. Prior was then fifteen and Laura A. Prior eight years of age. They had the vested estate in remainder limited only upon the life estate of the defendant Hall. The apparent purpose of the statutory rule and of the judicial effect given to it, applicable to such cases was to give unqualified support to the final judgment of confirmation. Woodhull v, Little, 102 N. Y., 165; 1 N. Y., State Rep., 342. Jordan v. Van Epps, 85 N. Y., 427. And if the parties had been sui juris there would seem to be no support for the motion. The sale was by the interlocutory judgment directed, and pursuant to it had, nearly six years before this motion was made, and four years had elapsed before any question so far as appears was raised in behalf of those infant parties with a view to relief, when the motion to set aside the sale was made and denied. As a general rule, in the absence of statutory inhibition courts have control over their own proceedings and may deal with them as justice requires. In re City of Buffalo, 78 N. Y., 362-370; Dietz v. Farish, 11 J. & S. 87; and will usually exercise such power for the protection of the interests of the innocent and of those who have acted in good faith in the matter. In re Price, 67 N. Y., 231. The statute has prescribed certain times within which motions may be made for relief on the ground of irregularity or of errors in fact. Code §§ 1232,_ 1290, 1291. But this motion does not seem to come within the provisions of these sections. This was neither a case of irregularity, strictly as such, nor of error in fact. When the action in its progress reached the point where it appeared that partition could not be had without great prejudice to the owners, it was the duty of the court to have dismissed the complaint, because the statute so provided and declared that no sale could be made. The action nevertheless-proceeded to judgment directing the prohibited sale. This excessive exercise of judicial power was error which, if not waived rendered the interlocutory judgment voidable, but may not necessarily have been available on review because no exception was taken on the coming in of the referee’s report, and no objection was made to such judgment or to the sale or its confirmation.

The question therefore is, whether the final judgment was conclusive upon these minors as against the purchaser. The rights of those infants were in the care of guardians, who failed to do what is said, the interests of their wards re • quired of them. Is the court in which the proceedings were had, powerless, without the aid of fraud for its support, to grant them relief ? They were in some sense the wards of the court, and it was by the court that their interests were placed in the care of guardians ad litem. The court has determined that their rights were not- fairly taken care of by the means which it provided for that purpose, and therefore sought, so far as it could, to restore to them that of which they were deprived by its proceedings, conducted in violation of the statute to their prejudice.

In Reed v. Reed, the question arose upon a motion between the purchaser at the sale and the parties to the partition action, for whose benefit the sale was made. And the court held that inasmuch as it had jurisdiction of the subject-matter and parties, the final confirmation was conclusive upon such parties. In view of the doctrine of that case, the situation after final judgment was no different in effect than it would have been in a case where the proceedings resulting in a sale and confirmation were in no respect contrary to the provisions of the statute. It was there said on the review in the supreme court (11 N. Y. State Rep., 524), that the fact that some of the parties were infants, did not, as against them, qualify the conclusive effect declared by the statute of the final judgment, but that if there was any occasion for it, the remedy in their behalf for any injury suffered, was against the guardians and the sureties upon their bonds. In the present case, the infant parties seek relief against the judgment and its effect. And the court determined that the purchaser at the sale, made pursuant to the judgment, has not a standing in relation to the sale, which denies to the moving parties, the means of relief as against her, and that reasons exist why it should be granted.

Whatever our views may have been, if the question were res nova we think the case comes within the doctrine before referred to, declared in Reed v. Reed. There the purchaser was required to complete his purchases because the judgment confirming the sale was conclusive against an the parties to it, although some of them were infants. The principle applied there seems applicable to the question here.

Upon the authority of that case the order must be reversed, on the sole ground that the county court had no power to make it.

Barker, P. J., Haight and Dwight, JJ., concur.  