Hyperlawhypertext legal databasebeta Brown v. Mount 38 A.D. 440

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Brown v. Mount

38 A.D. 440 Court N.Y. App. Div. English

Contents

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p. 440
Clara J. Brown and Others, Appellants, v. Henry R. Mount, Appellant, Impleaded with Others. John Potts, Purchaser, Respondent.

Headnote

Mm'ketdble title—that a will was erroneously construed in an action to which all persons interested were parties, is not a ground of objection to the title.
A purchaser at a sale in partition will not be relieved from completing his purchase upon the ground that the will of a decedent, through whom all the parties claimed title, was erroneously construed, where it appears that the question was fairly presented for litigation and that there was no person having any possible interest in the title who was not made a party to the action. In such a case the purchaser is protected by the judgment rendered in the action, which is conclusive upon all the parties.
Appeal by the plaintiffs, Clara J. Brown and others, and by the defendant, Henry R. Mount,- from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of- Kings on the 14th day of February, 1899, denying their motion to compel John Potts, the purchaser at a sale had in the above-entitled action, to complete his purchase.
This' action was brought for the partition of certain premises of which Henry R. Mount died seized.
p. 441
William H. Hamilton, for the appellants.
Van Mater Stil/well, for the respondent.

Assuming that the will of the deceased, through whom all parties claim title, was erroneously construed by the Special Term (which we by no means assert), still the question was one fairly for litigation, and the judgment rendered in the action is conclusive on all the parties; and as there is no person having any possible interest in the title who was not made a party to the action, the title of the purchaser is absolutely secure; he is protected by the judgment. (Blakeley v. Calder, 15 N. Y. 617 ; Jordan v. Van Epps, 85 id. 427.)

The order should be reversed and motion to compel purchaser to take title granted, with ten dollars costs and disbursements.

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion to compel purchaser to take title granted, with ten dollars costs.

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