
    Mary Paget and Others, Respondents, v. Ellen S. Melcher and Others, Defendants. Andrew J. Connick, Purchaser, Appellant.
    
      Marketable title —partition suit to which a trustee was, and a child interested under, the trust was, not, a party the defect cured by a subsequent judgment in an action brought to sell'lots set off to the trustee — a mortgage on its face barred'by the statute is not a defeat.
    
    The owner of an undivided one-third interest in a tract of land, joined with his wife in executing a deed of his interest to a trustee, in trust, to receive and apply the rents and profits, as specified, during the lives of the grantors, and, upon their death, “in trust for all and every the children and child of the said parties of the first and second part (the grantors), to be divided between or among such children in equal shares ior proportions, payable', if the said real estate shall be turned into money, with the accumulations, on their, respectively arriving at twenty-one years of ¡age.”
    
      Subsequently an action for the partition of the entire tract was brought by a co-tenant of the trustee, to which the grantors and trustee were made parties, but a child of the grantors, born prior to the commencement of the action, was not. Actual partition was had, certain parcels -being allotted to the trustee and to his. co-tenants in extinction of their respective interests in the tract, and deeds being executed between the parties, including the trustee, in furtherance of the partition.
    After the termination of the partition suit the trustee, and one of the grantors in the trust deed, brought an action against the other grantor and the five children of the grantors then in existence, including the child living at the time of the commencement of the former action, to obtain leave to sell two parcels allotted to the trustee therein. The complaint in the action recited that the infant defendants had no other real property than that allotted to the trustee in the partition suit; that two of these lots haijl been sold, and that it was necessary to sell the other two. Judgment was entered reciting that it appeared, from the referee’s report, that all the material facts stated in the complaint were true, and adjudging that the report be confirmed, and that the facts of the case were as therein stated;
    Thereafter an action was brought to partition certain of the property allotted in the first-mentioned action to co-tenants of the trustee, and the purchaser at the sale having refused to complete his purchase upon the ground that the title to the property was defective, it was
    
      Held, that, under the provisions of the Revised Statutes in force at the time the former partition action was begun, it was necessary to make the child of the grantors in the trust deed, then in being, a party defendant, in order to extinguish the interest which such child took under the trust deed;
    That the implication of a power of sale in the trustee, arising from the use in the trust deed of the words, “if the said real estate shall be turned into money,” was not so clear as. to warrant the court in compelling a purchaser to take title thereunder;
    That, if there were such an implication, it was a power to sell and not to partition, and that the fact that the trustee joined in the allotment deeds of the premises in question did not operate to confer a good title on the grantees;
    That the determination made in the action brought to obtain authority to sell the lots allotted to the trustee, to the effect that the infant defendants had no real estate, except that allotted to the trustee in the partition action, being directly material upon the question whether the remaining lots should be disposed of, operated as a conclusive adjudication that such children had no interest in the property allotted to the trustee's co-tenants, and cured the defect in the title;
    That the fact that there was unsatisfied of record a mortgage covering the premises, which, upon its face, was barred by the Statute of Limitations, was not a tenable objection to the title, in the absence of proof tending to rebut theNstatutory presumption of payment, especially where the surviving mortgagee made affidavit that the mortgage was paid shortly after it became due.
    Appeal by Andrew J. Connick, a purchaser under a decree of partition and sale in the above-entitled action, from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on the 11th day of May, 1899, requiring him to complete his contract to purchase certain premises, and adjudging that his objections to the title of said premises were untenable, and that the title objected to was in all respects good and marketable.
    
      James A. Dunn, for the appellant.
    
      F. R. Minrath, for the respondents.
   Parrett, J. :

Mr. Connick makes two objections to the title, which we will consider in order.

The first objection is, that the five children of William Samler and Mary, his wife, have outstanding interests. The premises in suit, Mo. 5 East Twenty-eighth street, originally formed part of a ten-acre tract, the title to which was vested in the three children of John Samler, of whom William Samler was one. In March, 1836, William and his wife executed a deed of one-tenth of liis one-third interest to Henry Miller in trust to receive the rents and profits, and apply them as specified during the lives of the grantors, and upon their death “in trust for all and every the children and child of the said parties of the first and second part (Mr. and Mrs. Samler), to be divided between or among such children in equal shares or proportions, payable, if the said real estate shall he turned into money, with the accumulations, on their respectively arriving at twenty-one years of age.” In September, 1836, an action for the partition of - the ten-acre tract was commenced, by one of the children of John Samler, which resulted in a judgment specifically apportioning the property among the parties thereto. Miller was made a party to this action, also Samler and Mary Samler, and certain lots were apportioned to Miller in extinguishment of his one-thirtieth interest in the property. The property in the present suit was allotted to Peter and Cornelius I. De Witt, who, as grantees of -one of .the children of William Samler, were co-tenants of the trustee, and it is their title, thus derived, which the appellant now questions. The affidavits show that at the time of the confirmation of the report of the commissioners in the former action, Mr. and Mrs. Samler had one child, Mary Cecelia, now Mrs. King, who was not made a party to the action, and it is quite evident from the record that this child was born before the commencement of that action.

If the case depended upon the question whether this living child should have been made a party to the action, we should have difficulty in affirming the order. In fact, we think that all children in being at that time were proper and necessary parties. It is unnecessary to consider whether the reversionary interest of this child was vested or contingent. Even if contingent, she had an interest in the property, conditional upon her surviving her father and mother. It seems clear that, in order to extinguish this interest, it was necessary to make her a party to the action. The statute in force when the proceeding was begun was 2 Kevised Statutes, part 3, chapter 5, title 3. Section 5 of this title requires that the petition shall state “ the rights and titles of all persons interested ” in the property, so far as known, including that of “ every person who, by any contingency contained in any devise, grant or otherwise, may be or become entitled to any beneficial interest in the premises.” Section 6 provides, “ Every person having any such interest as aforesaid, whether in possession or otherwise, * * * may be made party to such petition.” Section 35 provides that the judgment shall be binding “ on all parties named therein, and their legal representatives, who shall, at the time, have any interest in the premises divided, as owners in fee, * * * or who, by any contingency contained in any will or grant or otherwise, may be or may become entitled to any beneficial interest in the premises,” etc. Section 7 is in harmony with these other provisions. That section provides that, “In case any one or more of such parties, or the share or quantity of interest of any of the parties, be unknown to the petitioner, or be uncertain or contingent, or the ownership of the inheritance shall depend upon an executory devise, or the remainder shall be a contingent remainder, * * * the same shall be set forth in such petition.” This was intended to cover cases where the parties who might take under contingent remainders were non-existent,- and of course could not be named. It did not neutralize the other sections which require all such remaindermen, when existent and known, to be named.

It thus appears that special provision was made for joining pen-sons in being with contingent interests, and that the judgment was made binding upon them only when they were “ named therein.” It seems obvious that, if it was desired to cut off the contingent interest of a person in being, it was necessary to make him a party. Campbell v. Stokes (142 N. Y. 23) lays this down as a general rule applicable to partition suits. The: testator there directed his executors, upon the death of any child, to pay over to his issue the share set apart for such child, and held in trust for him during his life. The grandchildren were not made parties to a suit for the partition of real property in which the testator had an interest, and it was said: “ Whether the remainders hi this case were vested or contingent, the persons in being, when the partition action was commenced, presumptively entitled to possession on the death of the life tenant, were necessary parties.”

Townshend v. Frommer (125 N. Y. 446) is relied upon by the respondents, but is not really in point. It was not a case of a partition suit, and did not involve the question as to who, under the statute, are necessary parties thereto. And the case was stated, in Campbell v. Stokes, to be “peculiar and anomalous,” and “not intended to overturn the general doctrine that remaindermen are not bound by a conveyance of the estate to which their interest attaches unless they are parties thereto in fact or in law.”

Eor can we concur in the view that the De Witts obtained good title by virtue of a power of sale in the deed to Miller. There was no such express power, and the implication deduced from the words, “ if the said real estate shall be turned info money,” is somewhat shadowy. Eo case has yet held that such words, thus placed, raise an implication of a power of sale. But we need not pass upon this question definitely. It is sufficient to say that the power is not so clear as to warrant a court in compelling a piirchaser to take under its execution.- Even if there were such an implication, it was of a power to sell, not to partition. Assuming, however, that the power was conferred, it seems plain that it was not exercised. Together with four other parties to the partition suit, Miller executed to the De Witts a deed of some fifty specified lots of land. This was done merely to effectuate the partition, and in pursuance of the judgment of the court, and the deed so recites. It is obvious that this was not an execution of a power of sale. Title was conferred, if at all, by the judgment. Miller’s deed, either individually or as trustee, was not essential. It is impossible to treat this deed as aught else than what it purported to be, and was, an execution of the mandate of the court. The title which the court could convey was only the title of those parties over whom it had acquired jurisdiction. And that was all which was done.

We think, however, that the title to the lot in question was validated by the subsequent action. This action was brought in November, 1848, by Mrs. Sander and Miller against Mr. Sander and the five children of the marriage then in existence, including the child who was in being at the time of the partition action. The complaint recites the trust deed to Miller, the partition suit, and the allotment of property to him thereunder; that the infant defendants had no other real property than that so received ; that two of these lots had been sold, and that it was necessary to sell the other two also. The judgment prayed for is that the two sales already made be confirmed, and that leave be granted to sell the other two lots. A referee was appointed, who reported in favor of the application. The judgment recites the referee’s report, “ from which report it * * * appears and is stated therein that all material facts stated in the complaint in this action are true as therein set forth ; ” and it is adjudged that the report “ be and the same hereby is in all things' confirmed, and that all and singular the facts of the case are as therein stated.” It also adjudges that Miller was vested with full power to sell the first two -lots, and confirms the sale; and directs him to sell the remaining lots, and enjoins the defendants from bringing any suit to disturb the possession of the purchasers.

We think that this judgment is a complete answer to this claim of the appellant. It expressly determines that the infant defendants had no real estate except that received by Miller in the partition action, and hence necessarily that they had no interest in the property transferred to the De Witts. .This fact was directly material upon the question whether the remaining lots should be disposed of, and it was expressly found by the court. The general rule,” as was said in Pray v. Hegeman (98 N. Y. 351), is well settled that the estoppel of a former judgment extends to every material matter within the issues which was expressly litigated and determined, and also to those matters which, although not expressly determined, are comprehended and involved in the thing expressly stated and decided, whether they were or were not actually litigated or considered. * * * It is not necessary to the conclusiveness of a former judgment that issue should have been taken upon the precise point controverted in the second action. Whatever is necessarily implied in the former decision is for the purpose of the estoppel deemed to have been actually decided.” This rule was quoted and reaffirmed in Reich v. Cochran (151 N. Y. 122). The five infant defendants in Mrs. Samler’s'and Miller’s action are the five persons whose alleged titles form the basis of the appellant’s objection ; and his objection is, therefore, completely disposed of by the judgment in that action.

The second objection is that a mortgage made in July, 1861, by Charles Gould and wife to William Whitney and others as trustees under the will of Stephen Whitney, deceased, is not satisfied of record. This mortgage was, on its face, payable in July, 1864, and there is no proof that it was renewed, or that any payment was made thereon,-subsequent to 1865. Upon its face the mortgage has ceased to be a lien from lapse of time, and, there being-no proof of any facts tending to rebut the legal presumption, it was not a tenable objection to the title. (Katz v. Kaiser, 10 App. Div. 137; affd., 154 N. Y. 296; Knapp v. Crane, 14 App. Div. 120.) But, further, the surviving mortgagee makes affidavit that the- mortgage was paid off on April. 1, 1865, -and that when a substituted trustee of the estate was appointed in 1888, this mortgage, for that reason, was not turned-over to it as part of the assets. This latter statement is corroborated by the affidavit of one of the officers of the company which was appointed substituted trustee. These" facts are quite undisputed, and furnish a complete answer to the appellant’s contention on that head.

Ro other objections are made to the title. We think the order compelling its aceptance should be affirmed, with costs.

Van Brunt, P. J., Rumsey, Patterson and O’Brien, JJ., - concurred.

Order affirmed, with costs.  