Noble v. Cromwell , 26 Barb. 475 ( 1858 )

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.