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Reed v. Reed.

such purchaser. Jordan v. Poillon, 77 N. Y. 518, 521, 553. As a rule, a title which is open to judicial doubt is not a marketable title. Shriver v. Shriver, 86 N. Y. 575, 584.

John J. Sullivan (Bailey & Sullivan, attorneys), for plaintiff-respondent, and Abraham Stern, guardian ad litem, respondent in person.

The plaintiff had such interest in the real estate as would entitle him to maintain this action. Cromwell v. Hull, 97 N. Y. 209; Tilton v. Vail, 42 Hun, 638; Riker v. Darke, 4 Edw. Ch. 668; Sears v. Hyer, 1 Paige, 483; Freeman on Cotenancy and Partition, $$ 455, 456; Mussey v. Sanborn, 15 Mass. 155. Notwithstanding the fact that the plaintiff, under section 1538 of the Code of Civil Procedure, was prohibited from being the plaintiff in this action, there having been a judgment and the court having confirmed the sale, the judgment is binding upon all the parties to the action, and gives the purchaser a valid title. Cromwell v. Hull, 97 N. Y. 209, which is a parallel case in every particular with the one before the court. . . . The action was regularly commenced against the infants by service of the summons and copy of complaint upon them personally. The court thereby acquired jurisdiction over the infants, and the Code of Civil Procedure expressly gives them the right in any action commenced against them to apply for the appointment of a guardian ad litem. The judgment is as binding upon the infant defendants as upon the adult defendants. In the case of Cromwell v. Hull, cited above, the same rules were applied, there being infant defendants in that action. The appellant is not in a position to attack the judgment as it now stands, if it is erroneous. The only persons who could complain are the parties to the action, and, they not having done so, the purchaser is protected and his title is good. "The order of confirmation of sale in partition is in the nature of a final judgment or decree and

Reed v. Reed.

has the force and effect of a judgment which binds the parties where there is complete jurisdiction, whatever errors or irregularities may have preceded it. It cannot be assaulted in collateral proceedings." Woodhull v. Little, 102 N. Y. 165; Blakely v. Calder, 15 Id. 617; Abbott v. Curran, 98 Id. 665; Civil Code of Pro. §§ 1557, 1577. The objection that the guardian ad litem did not make separate bonds for each of the infant defendants, but made a single bond for all of the defendants together, in the penalty of $500, is unvailing, for the reason that section 1536 of the Code of Civil Procedure prescribes what security shall be given by a guardian ad litem for an infant in an action for partition. . . . If, however, the bond given by the guardian ad litem was not sufficient, it would be a mere irregularity, and a proper bond could be filed nunc pro tunc. It was held, in the case of Croghan v. Livingston (17 N. Y. 218), that" in an action for partition in the supreme court, as in equity, the omission of the guardian ad litem of the infant defendant to file his bond as required by statute is a mere irregularity, which is amendable and does not affect the jurisdiction of the court or the validity of the sale under its judgment."

The main objection urged by the appellant in this matter is the fact that the life tenant was a party plaintiff in this action. We contend that the case of Cromwell v. Hull, above cited, is controlling upon that question. A distinction is endeavored to be drawn by the appellant between that case and the one here presented, based upon the fact that the case of Cromwell. Hull passed upon the question presented in an action pending prior to the enactment of section 1538 of the Code of Civil Procedure. In answer thereto we say that there is no such distinction; that section 1538 of the Code introduced no new provision, but was merely declaratory of the law as it then existed, which was precisely similar to the law as it existed under the Revised Statutes. 2 R. S. tion of the Revised Statutes is similiar to section 1532 of

317, § 1. . . . This sec

Reed v. Reed.

the Code of Civil Procedure; the latter excepting from its provisions the courts in which the action might be commenced; otherwise the two sections are exactly alike. In the case of Cromwell v. Hull, the court of appeals assumed the fact and laid down the law to be that prior to the enactment of the Code and under the Revised Statutes a tenant for life could not be a plaintiff in an action for partition. This is declaring the law as explicitly as if it were embodied in a statute. Consequently, the enactment of section 1538 of the Code of Civil Procedure prohibiting such a person from being a plaintiff in an action for partition was no more than declaring what the law was as laid down in that case and in cases therein cited. For that reason, the distinction endeavored to be made by the appellant does not exist.

The court had jurisdiction of the parties and of the subject matter. All persons having any interest in the premises were brought into court. They were personally served with process, and there is no question about the regularity of the proceedings appointing the guardian ad litem. The supreme court is one of general jurisdiction at law and in equity, and has jurisdiction of all actions for partition. As no one but the parties to the action can question the purchaser's title, and as they are bound by the judgment, there is no reason why the sale should not be consummated. Blakely v. Calder, 15 N. Y. 617; Howell v. Mills, 56 Id. 226; Sullivan v. Sullivan, 66 Id. 37; and cases cited above. The case of Scheu v. Lehning (4 N. Y. Civ. Pro. 385) is not in point, and asserts no doctrine in opposition to the views herewith presented. In that case, the action was commenced by one of the remaindermen; the Code of Civil Procedure expressly forbids a sale in such cases, and unless actual partition can be made, directs that the complaint must be dismissed; whereas section 1538 of the Code of Civil Procedure simply declares that no person other than a joint tenant or tenant in common shall be a plaintiff. Section 1533, under which

Reed v. Reed.

the above case was decided, did change the law upon the point there presented by expressly prohibiting such sales. See Commissioner's Preliminary Note, article 2, title 1, chapter 4 of the Code of Civil Procedure. In enacting section 1538 of the Code of Civil Procedure no change whatever in the law was made: it is simply declaratory of the law as it always was. Consequently, the case of Cromwell v. Hull is controlling. If, however, the case of Scheu v. Lehning passed upon the question here presented, it has been overruled by the court of appeals in Cromwell v. Hull -since decided.

DANIELS, J.-A sale was made under a judgment in partition recovered 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 Pro[1] cedure 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 by section 1577 of the Code that it shall be binding and conclusive upon the same persons upon whom 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 parti

tion and confirmed by a final judgment, that it is [2] binding and conclusive upon the plaintiff, each defend

ant 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

Reed v. Reed.

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 objections to the regularity and legality of the proceedings in the action, and it has made no exception in this respect in favor even of infant defendants. If the objection had been made by the guardian ad litem, 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 what[3] ever, 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 the 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 had realized if their title to it had not in this manner been divested, and that is the only remedy reserved to them under the provsions 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

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