
    NOBLE a. CROMWELL.
    
      Supreme Court, First District; Special Term,
    January, 1858.
    Partition.—Motion to be discharged from Purchase.—Parties.—Persons not in Being.—Amendment of Judgment.
    Where, in an action for partition, all necessary parties were joined, any error in stating the interests and shares of the parties, or any omission to state what on motion the plaintiff might have been compelled to insert by way of amendment, is not an irregularity which can affect the title. '
    The purchaser is not to be discharged because of the plaintiff’s omission to allege m the complaint that there are no other parties in interest or incumbrancers than those joined, or the referee’s omission to annex to the report the searches.
    * The application of Dinsmore and Wood was for a mandamus requiring the board only “ to entertain and consider” their bid. The application was so worded, on the ground that though the lowest bidder would not have a legal right, enforceable by mandamus, to have the contract awarded to him, he would have a legal right, under the acts defining the duties of the board, to have his bid entertained and considered, if it was regular in form. In this respect there was a distinction between the two applications. The Messrs. Cummings asked a mandamus compelling the board to award the contract to them.
    
      If there are other incumbrances, the burden is on the purchaser, who asks on such grounds to be discharged, to point them out.
    That a conveyance by some of the parties of their interests in the premises pending the proceedings and before judgment, to the person who afterwards becomes the purchaser at the sale, was not noted in the judgment-roll, is not an irregu- • larity to which such a purchaser can object.
    A testator having devised an undivided interest in an estate to a husband in trust for his wife during her natural life, and at her death to her heirs, subject to a life estate in' the husband, if he survived her,—
    
      Held, 1. That on a partition the proceeds of the interest so devised should be brought into court and invested, the income to be paid to her during her life, to her husband after her death, if he survived her, and to go to her heirs thereafter (following the case of Mead v. Mitchell, 5 ante, 92).
    2. That in such a case, the husband and wife being plaintiffs in the action for partition, their having taken judgment that their share of the proceeds should be paid over to them, instead of being so brought into court, was an irregularity, for which the purchaser’s motion to be discharged should be granted, unless the plaintiffs within thirty days should apply for and obtain an order amending the judgment in that respect.
    Petition by purchaser in partition, to be discharged from his purchase.
    The action was for partition. The complaint averred “ that in or about the month of March, 1847, Benjamin Brooks departed this life, leaving certain real estate, and among others the house and lot known as Bo. 14 Dey-street, in the city of Bew York, more particularly hereinafter described, and which was by his last will and testament—duly recorded in the office of the surrogate of the city and county of Bew York, and a copy of which is hereto annexed—devised to his several children (naming them), in nine parts, as stated in the residuary clause in the said will.” It further averred that at his death the premises were subject to a mortgage, which was afterwards foreclosed, and the premises in question, upon the foreclosure sale, were bought in by and conveyed to G. T. Cromwell (one of the defendants, and husband of one of the devisees) for the benefit and account of all the devisees, according to the provisions of the will. That afterwards Mr. Cromwell conveyed to the plaintiff Harriet, wife of the plaintiff William H. Noble, “her undivided proportion of the premises, which was ascertained to be eleven and two-thirds per cent, of the premises; and that the other devisees under said will, or those who represent said devisees, are equitably entitled in the same manner to the same proportion or share thereof,” except one of the defendants, an infant, etc. That the plaintiffs “ are now seized in right of the plaintiff Harriet, as tenants in common with the defendants, of an estate in fee simple equal to eleyen and two-thirds per cent, of all that certain lot,” etc., describing the premises. “That said Cromwell holds the legal title to the residue of the premises in his own right as to eleven and two-thirds per cent., and an equitable interest for the other devisees, or their legal representatives, under and according to said will.” The complaint further stated the interests claimed by the other defendants, and averred “that Edward C. Bull,” a party defendant, “is entitled to be repaid out of the share of plaintiffs an interest of one thousand dollars, and out of the share of said Matilda Frye,” one of the devisees, and a party defendant, “an interest of five hundred and twenty-two dollars and fifty centsand that the plaintiffs desired a partition; and demanded judgment for an actual partition, or a decree of sale and division of the proceeds.
    By the will, a copy of which was annexed, the testator devised one share of the premises to William H. Moble, in trust for his wife (the plaintiffs), during her natural life, and to her heirs forever, subject to a life estate in the husband, after the death of his wife.
    The answers put in submitted the interests of the answering defendants to the court for partition, and upon the usual reference a report was made defining the interests of the parties, stating that of the plaintiffs as an interest in the right of the wife, of eleven and two-thirds per cent. The referee certified that he had caused the necessary searches to be made, and that no creditor not a party had any lien on the premises, except a mortgagee, whose lien was prior to the interests of all the parties. An abstract of the title was set forth in the report, but no , searches were annexed.-
    On March 20, 1856, the report was confirmed, and judgment was given directing a sale, and a division of the proceeds among the parties, pursuant to the tenor of the report, including the payment to the plaintiffs of eleven and two-thirds per cent, of the proceeds, as claimed in the complaint.
    The sale was had under direction of the referee, and his report of sale confirmed in August, 1856.
    The petitioner, Charles Bridge, was the purchaser at the sale, and. now applied to be discharged from his purchase, upon objections to the regularity of the proceedings.
    It appeared upon the . motion that the action was commenced by an arrangement with one George Bridge, who had then a contract with various of the devisees for interests amounting to fifty-one and one-third hundredths of the premises. Pending the partition, this- contract was assigned by him to Charles Bridge, the petitioner; and before judgment a deed, pursuant to the contract, was executed to him by some of the defendants. This deed was by its terms “subject to the partition'action.”
    The petitioner raised many objections to the regularity of the proceedings ; among which were the following:—that himself, George Bridge, and the children of the plaintiffs, should have been made parties; that the interests of the parties were not stated in the complaint with sufficient certainty; that it was not alleged that all the debts 'and legacies were paid, nor that there were no other incumbrancers; and that no searches for incumbranceá were annexed to the referee’s report.
    
      J. M. Baldwin, for the petitioner.
    
      Charles T. Cromwell, in opposition.
   Ingraham, J.

Under a decree in partition in this case, Charles Bridge became the purchaser of certain premises in this city, which sale has not been completed, and he now moves for an order vacating such sale for alleged irregularities in the proceedings, and for defects in the title to the premises.

The various objections taken' to the- proceedings, so far as they relate to the parties who appeared therein, cannot affect the title to the premises. Any error in stating the interests and shares of the parties, or any omissions to state what, on motion, the plaintiffs might have been compelled to insert by way of amendment, would be immaterial, because the persons interested therein were-all parties to the action, and are concluded by the decree.

So also the omission to allege there were no incumbrances, and the omission to annex searches for incumbrances to the report, would be immaterial. If there' are any such incumbrances, the purchaser should furnish evidence thereof, and not rest his motion on the mere want of such certificates. (Gardner v. Luke, 12 Wend., 269; Hall v. Partridge, 10 How. Pr. R., 190.) The like remarks apply to the alleged want of allegations in the complaint as to wife of testator, or as to when the will was proved, or that parties were tenants in common, and others of a like nature.

The omission to make such allegations does not prove that the contrary exists. If there is no foundation for any such suggéstions, no harm can arise from their omission. If there be foundation for them, and liens or incumbrances or defects do ' exist affecting the title, the petitioner can show affirmatively such incumbrance or defect. Hot having done so on this motion, it is fair to presume that none exist.

The property was conveyed to Bull as security, and it does not appear on the record that any reconveyance has been executed.

In his answer, Bull admits his interest in the premises sought to be partitioned, to be as stated, in the complaint. Having been made a party to the action, and having answered in this manner, he would be concluded by the judgment, and could not hereafter claim any other interest therein. I understand it to be conceded that he has been paid the amount due him. But whether paid or not, he is concluded by the judgment, which decrees that Edward C. Bull is not entitled to any interest in the premises.

The dbjections to the proceedings as to the infant defendants were waived on the argument of the motion.

Some of the defendants had conveyed their shares in the property to the petitioner before the judgment, and such change of interest is not noted in the judgment.

The deeds show that such conveyances were made subject to the proceedings in partition, and were to vest in the purchaser the shares of the grantors as parties in the suit. The title could in no way be affected by such conveyances to the purchaser. By purchasing with full knowledge that he held these conveyances, he became vested with all the title of the parties to the action, as well by the sale under the judgment as by the conveyances, and he could not object, as a defect in the title, that in addition to the title acquired by the sale, he had also a title by deed from some of the parties. If he intended to claim adversely to the partition, he should not have purchased the premises at the sale under the judgment. The case of Jackson y. Brown (3 Johns., 459), cited by the petitioner, is not applicable, because the conveyance in that case was made before the proceedings in partition were commenced, and the grantee was not named in the proceeding.

By the will under which the parties claimed title to the premises, the testator, after dividing his property into nine partí, devised one share thereof to William H. Roble, intrust for his wife during-her natural life, and to her heirs forever, subject to a life estate to the husband after the death of the wife.

The title to the premises under this devise vested directly in the wife, and not in the trustee, during her life (1 Rev. Stats., 728, § 49); and the question is raised by the petitioner, whether, after her death, the estate did not pass to the children of Mrs. Roble. Under the provisions of the Revised Statutes (1 Rev. Stats., 748), Mrs. Roble’s children, if she left any surviving, would be entitled to the fee, subject to the estate of the husband therein during his life, if he survived his wife.

It is no answer to the objection taken by the petitioner to the title of the premises sold, in this respect, to say that there are no children shoyn to be in existence. It may or may not be the case at the time of her death. Until that event takes place, it is impossible to say who will be her heirs, or whether her children, if she has any, will survive her.

The difficulty, however, which arises from this view of the cáse may be remedied by an amendment of the judgment directing the share of the property, in which Mrs. Roble has an interest, to be brought into court and invested; the income to be paid to her during her life; to her husband, if he survive her, after her death; and to belong to the heirs of Mrs. Roble thereafter. The plaintiff should apply for an amendment of the judgment in this respect; and if so amended, the sale can be completed. The general "term of the Supreme Court in this district, in Mead v. Mitchell (September term, 1857), have decided that with such a disposition of the fund the partition is good, and a good title can be given to the purchaser. (See same case at special term, 5 Abbotts' Pr. R., 92.)

The motion will be granted, unless the plaintiff within thirty days applies for and obtains an order amending the judgment in this respect. If so amended, the motion is denied.

The petitioner to be paid the costs of this application out of the funds. 
      
       Affirming the judgment of the special term, Mead v. Mitchell, 5 Ante, 92.
     