Majority
p. 373Polly Bogert v. Daniel J. Bogert et al. (Supreme Court, General Term, First Department, Filed July 9, 1889.)
Headnote
Parties—Husband of joint tenant who died intestate necessary PARTY TO ACTION OF PARTITION.The husband of a person who died intestate seized of an individual interest in certain premises prior to the commencement of an action for the partition of the same, is a necessary party to such action.
Motion for re-argument.
For opinion rendered on first argument, see 23 N. Y. State Rep., 595.
P. Q. Eckerson, for app’lt; G. W. Pleasants, for resp’t.
There is nothing in the moving papers on which the order appealed from was granted to show that the deed from Moyer to Bogert was tendered to the purchaser, and the purchaser denies the fact of the tender or production of that deed. We must, therefore, dispose of the appeal upon the record presented to us.
p. 374
But if we should take notice of the deed, it would not cure the defect in the title. Bogert, the grantee, was a party to the action. But the only interest in the premises in suit adjudged him by the decree, was his courtesy as husband of the plaintiff. If he had had at the time of the decree any other interest, probably the decree would have concluded him. But the conveyance to Bogert from Moyer, was not made till five months after the decree. The effect of such conveyance is simply to vest in Bogert the interest formerly held by Moyer. That interest is still outstanding, and would not pass to the purchaser at the partition sale. The conveyance therefore is nowise effective to cure the deject in the title. Motion for re-argument should be denied with costs.