Statement of case. fort, to be held and controlled by her, and at her death to pass to her heirs; or if she leaves no heirs, to be disposed of by her will to whom and for what purposes she may deem right and proper." This will received a judicial construction in the case of Taggart v. Murray (53 N. Y., 233). Before 1847, Cornelia Titus, the daughter mentioned, married Simon Phelps, by whom she had three children, all of whom are living. In 1847 Cornelia and her hus band conveyed these lots to James Waterbury, and subse quently the same title came to William Laytin, Lawrence and Julia Waterbury. In 1861 John F. Phelps and Maria Louisa Phelps, two of the children of Cornelia, executed quit-claim deeds of conveyance for these lots with others to Alvah C. Bush, reciting therein that they were intended to grant all their right, title and interest, conditional, contingent, in remainder, or otherwise, in and to the lands of which Francis Titus died seized. In the same year the estate of Ida C. Phelps, the other child of Cornelia, then an infant, in pursuance of proceedings under the statute providing for the sale of the real estate of infants, was conveyed to Mr. Bush, the same grantee. In 1874 William Laytin brought an action for a partition of these and the other lots, in which he made Bush and the Waterburys defendants. Bush was a non-resident of the State, and an order was obtained in the action for the service of the summons on him by publication, and he was served personally out of the State, at his place of residence in Pennsylvania, but did not appear in the action. The cause proceeded to judgment, which was in substance that partition be had by sale of the premises; that out of the proceeds certain sums paid by the tenants for life for taxes and assessments be refunded, and that the balance be divided in certain specified proportions. Under the judgment the premises in question were sold to the plaintiff, who received the referee's deed therefor. During the pendency of the action the testator's daughter Cornelia died. The lots in question were sold in Opinion of the Court, per ALLEN, J. 1838, for an unpaid assessment for a street improvement; the purchaser never entered into possession, or exercised or claimed to exercise any acts of ownership. Further facts appear in the opinion. John W. Stearns, for appellant. Mrs. Phelps was, by her deeds, estopped from executing the appointment under the will otherwise than for the benefit of her grantees. (Mead v. Mitchell, 17 N. Y., 210; Bebee v. Griffing, 14 id., 235; Sullivan v. Sullivan, 66 id., 37.) Theo. F. Jackson, for respondent. The Supreme Court in the partition suit of Laytin v. Waterbury did not have or acquire jurisdiction to decree a partition or sale of the interest of Alvah C. Bush. (Allnatt on Partition, 63; Cole v. Aylott, Litt., 300; 2 Broom & Had. Coms., 71; Coles v. Coles, 15 J. R., 319; Bradshaw v. Callaghan, 5 id., 80; 8 id., 558; Clapp v. Bromaghan, 9 Cow., 530; Fleet v. Dorland, 11 How. Pr., 489.) The sale of the interest of the infant in the real estate was void, for the reason that the Supreme Court had not jurisdiction to order it. (Rogers v. Dill, 6 Hill, 415; 1 Washb. on R. P., 34, 35; Durando v. Durando, 23 N. Y., 332; 2 Black's Com., 17, 19; 1 Broom & Had. Com. [Am. ed.], 430.) ALLEN, J. During the pendency of this action the life upon which the particular estates depended has fallen in, and the estate in remainder has become vested in possession, and one serious if not fatal objection to the plaintiff's title, which existed at the time of the commencement of the action, is removed. The remainder in the estate was devised to the issue of the daughter of the testator, the devisee for life living at her death. (Taggart v. Murray, 53 N. Y., 233.) The plaintiff claims, and, if the conveyances to him are valid and effectual for the purposes for which they were made, has acquired, the title of the three children and only issue of the devisee for life, then or now living; but he has only acquired Opinion of the Court, per ALLEN, J. the title and interest as devisee in remainder which they respectively had at the time of the several conveyances, and by the death of either, without leaving issue during the life of the mother, the estate and interest which he or she would have taken absolutely at the death of the mother, would have become vested in such of the issue as should survive the mother. It follows that during the continuance of the life estate the plaintiff had not a marketable title to the remainder, and could not have made "a good and perfect title in fee simple absolute" to the lands. But the children have survived the mother, and their estates have come into possession. The plaintiff has a title in fee, if the conveyances under which he claims the estate are valid. The fact that at the time of the commencement of the action he could not make a good title is immaterial, except upon the question of interest, if he can make such title at the time of the decree. (Pierce v. Nichols, 1 Paige, 244; Brown v. Haff, 5 id., 235.) The first objection to the title, which is urged upon this appeal, is to the jurisdiction of the court to decree a partition or sale of the estate in remainder, then in Bush, the plaintiff taking title under the sale in the action for a partition or sale, brought by Laytin, a tenant for life in possession, against his co-life tenants and Bush the remainderman. Whether the judgment was such a judgment as ought to have been given, or whether the action, whether regarded solely as an action for a partition, or as an action as well to establish a lien for taxes and assessments paid by the lifetenants, might not have been successfully defended by Bush, the remainderman, and the judgment in partition restricted to the life estate need not be considered. If the court had jurisdiction of the subject-matter and of the persons, the judgment is conclusive, although it may have been erroneous, until reversed or vacated. The court acquired jurisdiction of the defendants, other than Bush and wife, by the personal service of summons and complaint and their voluntary appearance and consent to the judgment. Jurisdiction Opinion of the Court, per ALLEN, J. was acquired over Bush and wife by service of summons and complaint upon them, pursuant to an order of publication, at Tioga, in the State of Pennsylvania. The service was equally valid for the purpose of giving jurisdiction, whether made upon them personally at their residence in Pennsylvania or by publication. (2 R. S., 319, § 12; Code, § 135.) The Supreme Court has jurisdiction in cases of partition as a proceeding quasi in rem—that is, it had jurisdiction over the general subject-matter of the action. It is not denied that tenants for life can have partition as between themselves, and in all cases of partition all persons entitled to the reversion, remainder and inheritance, after the termination of any particular estate, and every person who, by any contingency contained in any devise, grant or otherwise, may be or become entitled to any beneficial interest in the lands, may be made parties to the action or proceedings, and the judg ment in partition is made conclusive on all parties having any interest in the premises, contingent or otherwise, and conveyances upon a sale under a judgment in partition are a bar in law and equity against all persons interested in such premises, in any way, who are named as parties in the proceedings. (2 R. S., 318, §§ 5, 6; 2 id., 322, § 35; 2 id., 327,§ 60; Sullivan v. Sullivan, 66 N. Y., 37.) Bush was a proper party to the action and might have appeared and resisted the demand for judgment that his estate be sold, and insisted that the partition should be confined to the life estate. There could have been no partition of the estate in remainder, as Bush was the sole owner of such estate, if the plaintiff's claim is to be upheld, and actual partition could easily have been made between the life tenants, as it was in fact made upon the sale of the lots separately, and striking off seven of the fourteen lots to one purchaser, and the resi due to another. Whether the estate in remainder was properly chargeable with the payment of any part of the taxes and assessments, and if so, what proportion we are not called upon to consider. The Supreme Court had jurisdiction of that Opinion of the Court, per ALLEN, J. subject, as well as of the partition. An equitable lien was asserted in the complaint, and the judgment is conclusive, as in the case of partition. (Howell v. Mills, 56 N. Y., 226; Sullivan v. Sullivan (supra). The objections to the judgment do not go to the jurisdiction of the court, but are merely assignments of error, and cannot be heard in this action or any collateral proceeding in impeachment of the judgment, or to impair its effect as the judgment of a court of competent jurisdiction, conclusive on all the parties to it and their representatives. The next objection is to the jurisdiction of the Supreme Court to direct a sale of the estate in remainder of the infant, Ida C. Phelps, under the statute for the sale of infants' estates, the title of Bush to an undivided third of the remainder having been acquired under a sale pursuant to such order. The contention is, that under the statute, the court has only jurisdiction over estates in possession, and cannot direct a sale of future estates, although vested in interest. The court derives its power over the real estate of infants solely from the statute, and can only exercise it in the cases prescribed. (Rogers v. Dill, 6 Hill, 415.) Prior to the passage of the first statute on the subject in 1814, application was made to the Legislature, as individual cases arose, for the disposal of infants' estates, and the objection now taken to the proceedings for sale of the estate of the infant Phelps is founded upon the language of the statute. The first act (Laws of 1814) authorized the sale of "the real estate" of infants. In 1815, a revised and more perfect act was passed, authorizing applications for a sale" whenever an infant shall be seized of lands or tenements, or be entitled to a term to come in any lands in this State." (Laws of 1815, ch. 106.) And, by the Revised Statutes (2 R. S., 194, § 170), any infant “seized of any real estate, or entitled to any terms for years in any land may" apply for sale or disposition of his property. Although the language of the several statutes differs slightly in phraseology in describing and characterizing the property subject to the provisions of the act, there is no reason to supSICKELS.-VOL. XXVIII. 46 |