
    David L. Reed, Resp’t, v. Alfaretta Reed and Others, and Abraham Bernheimer, App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 27, 1887.)
    
    1. Partition—Action for—Tenant by curtesy cannot be plaintiff— Code Civ. Pro., § 1538—Defect cured by final judgment—Code Civ. Pro., § 1577—Object of—Similar law under the Revised Statutes.
    By section 1538, Code Civil Procedure, a person whose interest is that of a tenant by the curtesy, is forbidden from being the plaintiff in an action for partition. But when a sale in partition has been confirmed by the final judgment, it is declared, by section 1577 of the Code of Civil Procedure, that it shall be binding and conclusive upon the same persons upon whom a final judgment for partition is made binding and conclusive by section 1557 of the Code, and it effectually bars each of those persons who is not a purchaser at the sale, from all right, title and interest in the property sold. The effect of the final judgment is to ratify and legalize the sale, althpugh it maybe made in an action commenced by a person interested in the property, who has not been permitted to maintain it. The object of the law evidently has been, after the sale has been made and confirmed, to deprive the parties to the action of all objection to the regularity and legality of the proceeding in the action. There is no substantial difference between the effect of the Revised Statutes (3 Rev. Stat. [3d ed.], 330, § 84; id., 336-7, §§ 60-1), and these provisions of the Code.
    55. Same—Liability of guardian for neglect or omission to raise objection BEFORE FINAL JUDGMENT.
    If the interests of infants in an action for partition have been in any manner prejudiced or sacrificed by the omission of the guardian to raise proper objections, their remedy will be against the guardian, after final judgment has been entered confirming the sale.
    8. Same—Omission of guardian to file a bond in favor of each infant —Effect of.
    The omission to require a bond from a guardian, in favor of each of several infants, does not divest the court of the jurisdiction it has acquired. If, in such a case, a second bond should have been required in favor of each of the infants; the omission so to do and the permitting one bond is no more than an irregularity.
    Appeal from an order denying a motion made by the purchaser, Abraham Bernheiñaer, to be relieved from his purchase and from an order directing him to complete such purchase, pursuant to the terms of sale subscribed _ by him.
    _ Edward D. Betten, for app’lts; John J. Sullivan and Abraham, Stern, for resp’t.
   Daniels, J.

—A sale was made under a judgment in partition by the plaintiff, whose interest in the property was. that of a tenant by the curtesy. He was forbidden by section 1538 of the Code of Civil Procedure from being the plaintiff in such an action, and it is mainly for that .reason that the purchaser objects to receiving and taking the title under the purchase. But it appears from the case that after the sale was made it was confirmed by the final judgment directed and entered in the action. And when a sale in partition has been confirmed by the final judgment, it has been declared Tby section 1577 of the Code that it shall be binding and conclusive upon the same persons upon whom a final judgment for partition is made binding and conclusive by section 1557 of the Code. And it effectually bars each of those persons who is not a purchaser at the sale from all right, title and interest in the property sold.

The other section here referred to has further declared when the sale may be made by commissioners in partition and confirmed by a final judgment, that it is binding and conclusive upon the plaintiff, each defendant upon whom the summons was served, and the legal representatives of such parties, and being conclusive as it has been so declared to be, the effect of the final judgment is to ratify and legalize the sale, although it may be made in an action commenced by a person interested in the property who has not been permitted to maintain it. The object of the law evidently has been, after the sale has been made and confirmed, to deprive the parties to the action of all objection to the regularity and legality of the proceedings in the action, and it made no exception in this respect in favor even of infant defendants. If the objection had been made by the guardian ad Utem, as it should have been, that this action was commenced by a person forbidden to institute or prosecute it, that objection would have resulted in its dismissal.

But it was not raised, or presented to the court, in any form whatever, and if the interests of the infants in this estate have been in any manner prejudiced, or sacrificed by the omission of the guardian to raise the objection, their remedy will be against him and his sureties in the bond, for omitting to care for and protect them, as that might have been done by a reasonable degree of attention devoted to the allegations made in the complaint. If the omission to present the objection resulted from any collusion with the plaintiff in the prosecution of the action, he was not entitled to maintain, or from mere oversight; in either event th° guardian will be liable to the infants for whatever damages they may have sustained by the sale and disposition of the property, if that has been made for less than it ought to have brought, or than it would have realized if their title to it had not in this manner been divested, and that- is the only remedy reserved to them under the provisions of the Code giving this conclusive effect to the final judgment. °

This effect was given to a judgment in partition by the decision made in Cromwell v. Hull (97 N. Y., 209), and the weight to which that case is entitled in this action is not materially diminished by the fact, that the action which was then decided proceeded under the provisions of the Revised Statutes. For in that respect those statutes gave the same effect to a final decision in partition as these provisions now do, which are contained in the Code. 2 R. S. (3d ed.), 330, § 84; id., 326-7, §§ 60-1.

Under the provisions of those statutes only a joint tenant, or tenant in common was authorized to maintain an action for the partition of real estate (id., 326, § 1), and that by implication forbade the action to be brought by a tenant, by the curtesy as completely, though not expressly, as section 1538 of the Code of Civil Procedure. There is no substantial difference in these statutes, and this decision accordingly is binding upon the parties to this action. And since it was made it has been followed in Woodhull v. Littlet 1 N. Y. St. R., 342. And in principle it is likewise confirmed by Abbott v. Curran, 98 N. Y., 665. The case of Scheu v. Lehning (31 Hun, 183) stands no way in conflict with this rule, for there it was not made to appear that final judgment confirming the sale had been rendered. In the absence of such confirmation, the court would not require the purchaser to take the title who urged the existence of such an objection, for the law entitles every purchaser of real estate under a judgment in partition, to a title which will be reasonably free from doubt or dispute. The summons and complaint were served upon the infant defendants as that was required to be done by section 134 of the Code of Procedure, and as they were" each under the age of fourteen years, the guardian ad litem, was legally appointed for them the next day after the summons and complaint were served, by the court acting under the authority of section 471 of the Code.

And the omission to require a bond from the guardian in favor of each of the infants, did not divest the court of the jurisdiction it had acquired over them in this manner. Even if a several bond should have been required in favor of each of the infants, the omission to direct it to be given and permitting one bond for their joint as well as several benefit, was no more than an irregularity, which cannot now be made the subject of objection or complaint by the purchaser. Croghan v. IJ.vingston, 17 N. Y., 218. In that case the court held that the omission to file the bond required was no more than an irregularity, which was after-wards amendable by the court. And an offer has been made to correct any irregularity in the form of this bond, by executing and filing a bond in favor of each one of the infants, if that should be exacted by the purchaser. But he has not insisted upon that being done. He accordingly cannot be relieved of his purchase on account of this alleged defect, even if he should be held right in making the objection. The objection that there may be creditors of the estate, having the right to apply for the sale of the property for the payment of their debts, has been, answered by the affidavit of one of the defendants, stating that her mother, who was the preceding owner of the property, left sufficient personal property to pay all claims against her estate. These are the substantial as well as formal objections urged in behalf of the purchaser, in support of his application to be relieved from the purchase, and as neither of them is legally well founded, it follows that both of the orders from which the appeals have been taken, should be affirmed, with ten dollars costs, besides disbursements.

Van Brunt, P. J., and Bartlett, J., concur.  