Majority
p. 410Althause, Plaintiff and Appellant, v. Radde and Russell, Defendants and Respondents.Headnote
1. TJnder the Code, as it was amended by .the act of April 11, 1849, lands may be partitioned by action.2. A party entitled, and intending to commence such an action, may, before service of the summons, procure a guardian for minor defendants to be appointed, in the manner prescribed by 2 B. S., 317, §§■ 2, 3.
3. When a guardian, thus appointed, has made and filed such a bond as the order appointing him and the Revised Statutes prescribe; i and has given notice thereof to the party intending to institute such action; he has thereby effectually consented to act as guardian, and has accepted of his appointment as such.
4. The summons and complaint, in such action for partition, should be served on him as such guardian, and such service is a legal and valid service on the minors whom he represents.
5. The omission of such guardian to file an answer to the complaint, or to give notice of his appearance in the action, will not affect the validity of a judgment that partition be made, especially if an answer be filed by virtue of an order of the Court, as of the time when it might have been regularly served as a matter of course; though such order be made after judgment has been perfected.
6. Such defects or objections are not sufficient to justify the Court, in dismissing a suit for the specific performance of a contract to purchase lands, the vendor’s title to which depends upon the validity of a judgment in partition, rendered upon such proceedings.
(Before Boswoeth, Hoeeman and Pierrepont, J. J.)This is an appeal by the plaintiff from a judgment for the defendants, rendered at a Special Term, held by Mr. Justice Hoffman, in April, 1858. Samuel B. Althause is the plaintiff, and William Badde and Archibald Bussell are the defendants.
The action is for the specific performance of a contract made May 25th, 1857, by which the plaintiff agreed to sell, "and the
p. 411defendant, Radde, to purchase certain lands situate in the city and county of New York. The time for performance, as extended by the parties, was August 5th, 1857. All the questions made by the pleadings were disposed of by a stipulation .between the parties, except the question whether the plaintiff, on the 5th of August, 1857, had such a title to the property as he was bound to make under the agreement. It was admitted that the plaintiff’s title was perfect, unless it was affected in one of three ways :
First. By a mortgage given by William Ogilvie, a former owner of the property, to Neziah Wright, and a judgment of foreclosure which he had recovered, but under which judgment no sale had been made.
The mortgage and the judgment had been assigned to the plaintiff, and the defendants were duly notified of that fact, on the 5th of August, 1857.
Second. The former owner, William Ogilvie, made a general assignment of his property, including the premises in question, to William H. Ogilvie, on the 20th of August, 1855, in trust for the benefit of creditors, and the plaintiff derived his title through the assignee, by a deed dated October 20, 1856. Soon after making the assignment, judgments were obtained against William Ogilvie, the assignor. The defendants in their answer attempted to impeach the assignment, and alleged that it was made when William Ogilvie was solvent, and for the purpose of hindering, delaying and defrauding his creditors.
Third. The four children of a Mrs. Ewen formerly had a small interest in remainder, (after the death of their mother,) in the property; and the plaintiff’s title was perfect, (in so far as it was affected by the suit next named,) if the judgment, which had been rendered in a partition suit, was binding upon the children. The partition suit was for the partition of these and other lands, and was brought in the Court of Common Pleas of the city and county of New York, in 1849, by William H. Ogilvie, against Ann Proudfit and others, the children of Mrs. Ewen being made parties, as defendants. They were infants, and a guardian ad litem (their father, John Ewen), was appointed for them by the Court; the guardian gave and filed the proper bond, and notice of that fact was served on the plaintiff’s attorney. The sum
p. 412mons and complaint in the suit were then served on the guardian, in September, 1849, and also on each of the minors personally.
The guardian did not (at the first) enter an appearance, or put in an answer for the children; nor did any of the other defendants answer, and judgment, as by default, was rendered in March, 1850, that partition be made.
The property was not sold, but partition was made among the several owners in proportion to their respective rights, and final judgment was rendered, that the partition be holden firm and effectual forever.
The judgment roll was signed and filed, August 7, 1850.
In July, 1857, the Court of Common Pleas allowed the guardian to file, and he did file an answer for the children, nunc pro tunc, as of the 21st September, 1849, (which was soon after the summons and complaint were served, and before judgment was rendered.) The order was made on an affidavit of the guardian, showing very fully the propriety of granting it, if the filing of an answer was necessary or allowable.
The case on appeal (after setting forth the pleadings and the stipulation read on the trial, before referred to,) states that “ the plaintiff’s counsel then offered in evidence a judgment roll and other papers connected with an action commenced in the Court of Common Pleas, by William H. Ogilvie against Ann Proudfit and others, on or about the eleventh day of September, 1849, including a petition for the appointment of a guardian ad litem, for Caroline G. Ewen, Eliza M. Ewen, Maria L. Ewen, and John Ewen, Junior; infants, and the order of the Court thereon.
“It was-admitted, by the respective counsel, that these papers were taken from the files of said Court of Common Pleas, and they were read without objection, and are in the words and figures following, to wit:’’
From such “other papers” (not forming part of the judgment roll) it appears that on the 9th of July, 1849, a notice was served on John Ewen, the general guardian of Caroline G., Eliza M., Maria L., and John Ewen, Jr., of the intention of Wm. H. Ogilvie to apply to the Court of Common Pleas of New York city and county, on the twentieth of that month, to appoint a suitable person who should be guardian for such minors, “who should be parties” (as such notice states) “tothe proceedings on an appli
p. 413cation to be made to the said Court for a partition of the premises hereinafter described, and a copy of which application for the appointment of a guardian, as aforesai3, is hereto annexed.” A copy of the proposed application (including a written consent of John B. Cisco to act as such guardian) was served with such notice.
On the 27th of July, 1849, John Ewen was, by an order of that Court, appointed such guardian. On the 28th of August, 1849, a proper bond, executed by John Ewen as such guardian, and by sureties duly approved, was filed, and notice thereof was served on said Wm. H. Ogilvie.
A summons, in the action for partition, dated the 10th of September, 1849, and a complaint therein, verified that day (both • entitled in the partition suit), in which John Ewen and the said four minors were also named as defendants, were served on said John Ewen (“both for himself and as the guardian of the said minors”), on the fourteenth of said September, and on the seventeenth, on each of said minors, personally.
The affidavit of the person making such service on the seventeenth is that he did, on the day above named, “personally serve the said Caroline G-. Ewen, Eliza M. Ewen, Maria L. Ewen, and John Ewen, Jr., with true copies of the foregoing summons and complaint, and hereto annexed.” Such affidavit was made on the day of such service.
The complaint was amended in its description of the premises, and in some other particulars, by an order entered (December 6, 1849) upon due previous notice of an application therefor, served on each of the defendants personally.
By an order of Court dated November 14th, 1849, and “ filed in open Court” December 6th, 1850, Andrew Warner was appointed referee “ for the purpose of taking proofs of the complainant’s title and interest in the premises, and of the several matters set forth in the complaint in this cause, and to ascertain and report the rights and interests of the several parties in the premises, and an abstract of the conveyances by which they are held.”
The report of such referee is dated the 2d of March, 1850.
On the 4th of March, 1850, an order was made (on notice dated and served on the 22d of February, 1850, “ on each of the
p. 414defendants therein mentioned, by leaving a copy of the same at the respective place of residence of each one of said defendants, with persons competent to receive the same,”) confirming said report, and directing partition to be made, and appointing commissioners for the purpose.
The commissioners’ report is dated the 20th of July, 1850. A copy of said report, and notice of a motion to confirm it (for the 81st of July, 1850,) were served on the 20th of July, (on Eliza, Edward P. and William Ogilvie, personally,) and on the same day “ on the other defendants in said cause, by leaving the same at their respective places of residence, with persons competent to receive them.”
The judgment roll itself, contains the application for the appointment of a guardian for the minors (the Ewens,); notice of presenting it; the order appointing John Ewen such guardian; the summons and complaint in the action, or copies of them; an order allowing the complaint to be amended in certain particulars; the order which appointed Andrew Warner referee, (which recites that “ On reading and filing the affidavit of William H. Ogilvie, the complainant in this cause, of the due service of the summons and complaint in said cause on the several defendants therein, and that no notice of appearance nor answer has been served therein on said complainant, and that several of said defendants are infants, it is ordered, that Andrew Warner, of said city, be appointed referee in said cause,” &e.); the report of such referee; the order confirming such report, and directing partition made and appointing commissioners for the purpose; the report of such commissioners; and the judgment of the Court thereon; some papers forming the basis of an order for an allowance in addition to the ordinary costs; an order to that effect (and which in terms, also confirms the report of partition, and declares that “'the partition thereby certified be holden firm and effectual forever,” and which is signed “ 0. P. D.”); the bill of costs adjusted August 5th, 1850; and an order directing the proportion thereof, (including the extra allowance,) to be paid by each party.
There is no date to the order, granting the extra allowance and confirming the report, so that it can be determined thereby, whether it was granted on the 81st of July, 1850, or on the day
p. 415(the 5th or 7th of August, 1850), when the order was made declaring the proportion of costs, to be paid by each party.
The order of the 17th of July, 1857, which orders “ that the said answer of such guardian ” (which answer is also among the papers read in evidence without objection,) be filed with the clerk of this Court among the papers in the above entitled proceedings, nunc pro tunc, to take effect as if made, filed, and served upon the 21st of September, 1849, to be without prejudice to the subsequent proceedings in this action,” was not, in fact, annexed to the judgment roll, but was filed with the clerk of the Court of Common Pleas, on the 17th of July 1857, the day it was made. It also appeared, that on an affidavit of the due execution and filing of a guardian’s bond, on the 28th of August, 1849; that on search made the bond could not be found; an order was made on the 13th of October, 1856, allowing a new bond with sureties, acknowledged and approved, to be filed then as of the 28th of August, 1849, which was done.
Archibald Russell was made a party defendant, by reason of his being, or claiming to be an assignee (from Radde) of the contract in question. Some few additional matters appearing in evidence, are stated in the opinions delivered at General Term.
Mr. Justice Hoffman, in an opinion accompanying his decision at Special Term, inter alia, says:
“ Various objections are taken to the title, as a defense to the suit. I think sufficient answers are to- be found to all of them but one. . .
“ The guardian never appeared in any manner, and never answered. . .
“ I apprehend that a judgment against an infant by default, when there is no appearance nor answer on the record,- is wholly erroneous. It is an anomaly, and a very dangerous one to be treated lightly. . .
“The record must show the guardian’s acceptance of the office.
“ I hold that no step against the infants can be valid without an appearance by the guardian, through or without an attorney. And then the notice prescribed by this rule (the seventy-eighth of 1849) will be given, and the Court will have an opportunity of looking to the infants’ rights in this early stage. (See 177th
p. 416rule of the Court of Chancery, 124th rule under the judiciary act, and the seventy-third of the present rules.)
“It may be that an answer is not essential, but I consider it of the highest importance that it should be filed.
“In Varían v. Stevens (2 Duer S. C. R., 635), which has been referred to, the appointment of a guardian without service of a summons on the infant, was held regular, and then that the jurisdiction of the Court was complete when an answer on behalf of the infants had been put in by him.
“Has the order of July, 1857, permitting an answer of the guardian to be filed, nunc pro tunc, cured the objection?
“I am in great doubts upon this point, but do not see my way so clearly that it has remedied the defect, as to enforce the purchase.
“ The views I have thus taken lead to the conclusion that the plaintiff cannot enforce this contract,”
He dismissed the complaint, and from the judgment dismissing it, this appeal was taken by the plaintiff.
Greene 0. Bronson, for the plaintiff and appellant.
I. The objection to the title rests on the assumption that the judgment in partition is utterly void for want of jurisdiction in the Court; for, however erroneous or irregular the proceedings may be, if the Court has jurisdiction, its judgment is clearly valid, and constitutes a good, link in a chain of title.II. The Court had jurisdiction, both as to subject matter and parties.1. That the Court had jurisdiction of the subject matter—the partition of lands in the city and county of New York—cannot be denied. (2 R. S., 317, § 1; Stat. 1849, p. 701, §§ 448, 455 ; Code of 1849.)2. The New York Common Pleas is a Court of general jurisdiction (as contra-distinguished from those of special and limited authority), and the jurisdiction of such Courts over the parties is presumed, until the contrary is proved.In other words, when the subject of the action or proceeding is within the legal cognizance of the Court, the law presumes that all the necessary and proper steps were taken to warrant
p. 417the judgment; and the presumption extends to the means of acquiring jurisdiction over the person of the defendant, as well as to other matters. (Foot v. Stevens, 17 Wend., 483 ; Hart v. Seixas, 21 id., 40, 45, 54; Chemung Canal Bank v. Judson, 4 Seld., 254; Kempe's Lessee v. Kennedy, 5 Cranch, 173 , 185; Voorhees v. Bank U. S., 10 Peters, 449; Grignon's Lessee v. Astor, 2 How., 319 ; Bloom v. Burdick, 1 Hill, 130 , 139; Schneider v. McFarland, 2 Comst, 459; Miller v. Brinkerhoff, 4 Denio, 118 ; Thompson v. Tolmie, 2 Peters, 157; ex parte Tobias Watkins, 3 id., 193, 204, 207 ; People v. Kevins, 1 Hill, 154 ; Fowler v. Griffin, 3 Sandf. S. C., 385.)3. This doctrine of presuming jurisdiction over the person of the defendant, is forcibly illustrated by rules of pleading which are familiar to every lawyer. ,When the plaintiff counts on the judgment of a Court of special and limited authority, he must aver the existence of all the facts on which jurisdiction depended. But when he counts on the judgment of a Court of general jurisdiction, it is enough that the subject was within the legal cognizance of the Court, and the pleader need allege nothing beyond the fact that judgment was recovered for debt, damages, property, or some other matter upon which the Court could legally adjudicate.And so strong is the presumption of jurisdiction over the person, that the defendant cannot impeach the judgment without expressly negativing every fact from which jurisdiction might arise. (Starbuck v. Murray, 5 Wend., 148 , 159; Harrod v. Barretto, 1 Hall, 155 ; S. C., 2 id., 302 ; Shumway v. Stillman, 4 Cow., 292 .)4. There was no attempt to overthrow the presumption, by showing affirmatively the want of any fact upon which jurisdiction depended.5. When the Court has jurisdiction of the subject and party, its judgment is never void, however erroneous or irregular it may be. And if no guardian had been appointed, the judgment would only have been erroneous or irregular, not void. See cases above cited, and Croghan v. Livingston, (MS. Court of Appeals, March Term, 1858; since reported in 17 N. Y. R., 218.)6. But a guardian was appointed, and the only error which the Judge found in the proceedings was that the guardian
p. 418neither put in an answer nor entered an appearance in Court, and the judgment was by default. To this there are several answers.a. It is to be presumed, on the principle already stated, that the proper steps were taken to bring the guardian before the Court, and also that the guardian gave all proper attention to the rights and interests of the children, and the want of a formal answer or other appearance in Court was neither an error nor an irregularity. (2 R. S., 319, §§ 13, 22, 24, 35; 78th Rule oí 1849, now Rule 73.)In addition to the presumption, it appears that the guardian did, in fact, discharge his whole duty to the children, and a formal answer would have been an idle ceremony. (Rule 78 of 1849, now Rule 73.)b. If there was any error it was cured by subsequently putting in an answer, under the order of the Court, nunc pro tunc, as of the proper time. (Croghan v. Livingston; MS. Court of Appeals, March Term, 1858.)c. It was at the most only an error or irregularity which might be corrected on appeal or motion. It did not render the judgment void, and of course it constituted a valid link in the chain of title.Until reversed on appeal, or set aside on motion, the judgment was binding and conclusive, upon the children as well as the other defendants.III. Though the presumption was enough for the plaintiff’s . purpose, it fully appeared that the Court did, in fact, acquire jurisdiction over the persons of the infants, as well as the other defendants.
• 1. A guardian ad litem for the infants was duly appointed, and gave and filed the proper bond. (2 R. S., 317, §§ 2 to 4; Code of 1849, § 448; Varían v. Stevens, 2 Duer, 635 ; Rule 57 of 1849, not in the present rules; Lyle v. Smith, 13 How. Pr. R., 104; Jennings v. Jennings, 2 Abb. Pr. R., 6; Groghan v. Livingston, MS.; Disbrow v. Folger, 5 Abb. Pr. R., 53; 55th, 56th, 58th, 59th Rules of 1849, now Rules 52, 53, 54, 55.)2. The summons and complaint wpre then served, both on the infants and their guardian. And then the jurisdiction of the Court was complete. (Code of 1849, § 139.)
p. 4193. The affidavits of service were not so full as they should have been. (Code of 1849, § 138; Rule 90 of 1849, now Rule 84.)But that only makes a question of regularity. Jurisdiction does not depend upon an affidavit of service, but upon the fact that service was actually made; and that fact is fully established. (Code of 1849, § 139.)IY. The purchaser was in no peril that the title might fail in consequence of any supposed error in the judgment.1. There was no error in the judgment, for which it might be reversed on appeal.It being the judgment of a Court of general jurisdiction, the appellate tribunal would presume that everything was rightly done to warrant the judgment, including the appointment of a guardian for the infants. (See cases on second point.)2. A guardian was, in fact duly-appointed for the infants, and that appeared by the record. (See above, III, 1.)3. Although the guardian did not put in an answer, or do any other act in Court, that was not an error for which the judgment might have been reversed.It was not even an irregularity. (See above, II, 6.)4. If there was originally any error or irregularity in the proceedings, it was cured by subsequently putting in an answer for the infants nunc pro tunc as of the proper time, under the order of the Court. (Groghan v. Livingston, supra.)5. Whatever error there may have been in the judgment, the time for an appeal had gone by years before the time when the contract to purchase should have been performed. (Code of 1849, §§ 332, 348.)The guardian had written notice of the judgment as early as November 28, 1850.6. The infants have no day in Court after attaining their majority, to show cause against the judgment.a. They only have such day when it is given to them in the decree, and there is nothing of the kind in this judgment. (Macpherson, Infants, 412 to 430.)5. No such day to show cause could be given, for the judgment is final and conclusive upon infants as well as other parties. (2 R. S., 317; §§ 3, 35.)
p. 4207. The title of a purchaser acquired under the judgment would not be defeated by a subsequent reversal of the judgment. (Manning’s Case, 8 Coke, 96; Woodcock v. Bennet, 1 Cow., 711 ; Carter v. Simpson, 7 John., 535 , 536. And see Jackson v. Bartlett, 8 John., 361 ; Jackson v. Rosevelt, 13 id., 97; Jackson v. De Lancy, id., 536; Jackson v. Robins, 16 id., 537.)Y. Hor was the purchaser in any peril that the judgment might be set aside on motion for irregularity.1. There was nothing in the case upon which to base such a motion.If an objection should be taken that the affidavits of serving the summons and complaint were defective, the answer would be, that service was in fact duly made.2. The time within which Such a motion could be made had elapsed long before the contract in question was made. (2 E. S., 359, § 2.)3. If the power to set aside the judgment still existed, no Court, in the exercise of a sound discretion, would for a moment entertain such a motion. The guardian ad litem was the father and general guardian of the infants ; he not only gave bail for the faithful performance of his duties as guardian, but his wife, (the mother of the children,) had a life estate in the property of which the children were seised in remainder, and was, of course, interested to have the partition made as favorably to the infants as the justice of the case would warrant. The guardian gave careful attention to the proceedings, from the beginning to the end; and there is no pretence that justice was not done to the infants, as Well as others. All the parties to the judgment are satisfied, and each has been in the enjoyment of the share allotted to him, for nearly eight years. The premises in question fell to the share of "William Ogilvie. In 1855 he conveyed the property to William H. Ogilvie, in trust, for the payment of debts, and in 1856 William H. Ogilvie sold and conveyed the property to the plaintiff.And now after all the parties in interest have acquiesced in the judgment for nearly eight years, and after two sales, (and perhaps many more,) have been made, a third person, who is a stranger to the proceedings, seeks to get rid of his contract by attacking the judgment. Ho court of justice will give him its aid.
p. 421VI. The judgment should be reversed, and the usual judgment should be rendered for the specific performance of the contract, with costs. In other words, the plaintiff is entitled to such judgment as.the Court below should have given.Walter Butherford, for the defendants and respondents.
I. To entitle the appellant Althause to the relief asked, it must appear that he had on the 5th day of August, 1857, a good title to the premises in question free from incumbrances, (except such as are mentioned in the agreement of sale.) And particularly as he claims under the Ogilvie partition, it must appear by the record of those proceedings, that all parties thereto were before the Court, and bound by the judgment. Said record shows on the contrary, that the four infant children of Maria L. Ewen are not bound by said proceedings, and are now vested with an undivided one-twentieth part of the premises in question.The objections to the proceedings in the Ogilvie partition in the order in which they appear in the case are as follows, viz.:1. The lot furthest from Broadway, and described in the answer, is the lot sought to be affected by this partition.The petition for the appointment of guardian for the infant children of Maria L. Ewen, does not describe this lot.2. The order appointing John Ewen guardian ad litem, recites the petition, showing that W. H. Ogilvie intends to apply “to this Court for a division and partition of certain premises in said representation specifiedand ordered, that John Ewen be appointed “guardian of said minors for the special purpose of taking charge of the interests of said minors, in relation to the proceedings for a partition of the premises before mentioned, bond in $500, to be filed.’-’The guardian has no authority derived from the only source of power, the Court, to act for the children of Maria L. Ewen, in reference to the lot in question. It is not mentioned.The unborn children of Maria L. Ewen (if any) are not •represented at all; the proceedings throughout being confined to the children then living by name.3. There is no consent by John Ewen to act as guardian; his name is interlined in the order of appointment over that of John
p. 422B. Cisco, whose consent is on file. John Ewen does not once appear in the proceedings, or do one act to show that he entered upon the execution of his duties as guardian. The infants, on coming of age, have no action against him for neglect of duty, even if there was a bond on file, as he never qualified or acted as guardian.4. Neither by the record nor on the minutes of the Court does there appear to have been any bond filed by John Ewen, as guardian, under the order of appointment. In 1856, an attempt is made to supply this fatal defect under section 8 of “ An Act in relation to the partition of lands,” passed April 14th, 1852, p. 411, Laws of 1852. Affidavit that bond was filed and lost, and thereupon a new bond is filed nunc pro tunc. The act only authorizes a new bond to be filed in a case like this, where the guardian “ has entered upon the execution of his duties.”5. The action was attempted to be commenced in 1849, under the special statutory proceedings in relation to partition proceedings in Common Pleas, (2d ed. 2 R. S., p. 817, §' 2, Partition) by appointing guardian before suit was brought—the Code requiring it to be done after summons served; then, after order was made appointing guardian, the action is commenced by serving summons under Code—an unauthorized practice; and the action being commenced under the Code, there was no guardian duly appointed in the action.6. The complaint has been amended by interlineation, so as to describe the right lot. There is no order authorizing the amendment, and the guardian is not appointed to partition this lot.7. The affidavit service of summons is defective, in that it does not state how or where the service was made.8. The answer of John Ewen, filed nunc pro tunc, in July, 1857, can have no more effect than if filed by a stranger. He was no longer the guardian, and his submission of the rights and interests of the children to the Court now, can have no effect to cure his laches before judgment.If the children were not bound at the entry of the partition judgment in 1850, John Ewen cannot bind them now by a paper on which the Court could not now act, if it desired to do so.9. John Ewen neither appeared or answered as guardian,
p. 423either generally or specially, or did any other act in the suit. He neither took care of the interests of the infants personally or submitted their rights and interests by general answer, so that the court could. Nor was the judgment, in fact, ever brought before the Court. “ There was error in said complaint, or application, in stating the proportions due the respective parties, in which error this deponent was accidently led.”Deponent “ did not suppose it necessary for him to appear in the action and to serve an answer upon the plaintiff on behalf and as guardian of said infants respectively, although he was ready to do the same, if thereby he had supposed the rights of said infants would have been better protected, or that it was necessary to render any judgment or decree in the action binding on said infants.” “He cjid not wish to mingle in the proceedings formally, any further than his duty as such guardian seemed to require.”
And, thus mistaking his duty, he did not act at all.The6 affidavit, for order to amend complaint is,“ That no »notice of appearance nor answer has been served on this deponent by any one of said defendants." That deponent has discovered complaint is erroneous in statements of interests.That plaintiff is entitled to more—T’T instead of T'¥-Edward P. Ogilvie is entitled to more—T\ instead of T'¥.Maria L. Ewing to in fee, before, nothing.Infants are entitled to less—¥V instead ofAn order was made, in accordance to amend the complaint.But complaint has never been amended.The affidavit for order of reference is,“ That no notice of appearance nor answer has been served on said complainant by any one of the defendants.”The order of reference, recites due proof of no appearance, and no answer of any of defendants, and that several are infants. This order was 'made before the complaint was ordered to be amended, and, after the amendment the complainant proceeded under this old order.The referee’s report does not certify that he was attended by any one representing infants.10. The affidavits of service of all the papers in the action on the infants are all defective, and show the several services worthless.
p. 424The two first in not showing that copies served were left with the parties, and all the others for the same, and for the additional and following reason, viz.: If a party appears, papers may be served at his place of business or house. If not, in case it is necessary to serve the papers, the service must be personal. And the affidavits do not show where or how the notices were served.The case must therefore be considered as if no papers whatever had been served on the infants. The record must be perfect in itself.11. The decree upon rights and interest, appointing commissioners,, &c., recites: “ The default of the defendants for not appearing and showing title to the proportions which they may claim, of premises set forth in the complaint of the said William H. Ogilvie in this cause, and for not answering the said complaint, having been duly entered.”Judgment cannot be taken against infants by default, —there being no appearance and no answer for them. (Young v. Whittaker, 1 A. K. Marshall’s Rep., 397; Chapman v. Monroe, 3 Dana Rep., 35 ; Holford v. Platt, Croke, James, 464.)The decree then proceeds: “And the Court having ascertained by the proofs so taken, declare the rights, titles and interests of the said parties to the proceedings in this cause, plaintiff as well as defendants, so far as the same have appeared, to be as follows, viz.”It therefore appears that the quad guardian not having appeared, that the decree,, by its own terms, does not affect the infants, and in this respect, the decree is strictly in pursuance of the Statute of Partition, and follows its wording. (§ 25, 2d ed., 2d yol. R. S., original paging, 321.)12. The bulk of the judgment roll is made up of pretended copies of some of the originals, probably in hopes that some or all of the originals might be lost, as the very first paper copied— the petition for appointment of guardian—is a false copy.13. The judgment final is not entered, by order of the Court, nor have the proceedings to this point been before the Court at all. The judgment is signed by the clerk on default.H. Every statute authority in derogation of the common law to divest the title of one and transfer it to another, must be
p. 425strictly pursued, or the title will not pass. The' purchaser must show, step by step, that everything has been done. He must collect and preserve all the facts and muniments upon which the validity of his title depends. (Striker v. Kelly, 7 Hill, 25 , and cases cited.)III. The record in these special proceedings must show that the court had jurisdiction of the case, or else the whole proceedings are void, and may be attacked in any collateral manner by the infants when they come of age, who would not be bound by the proceedings.1. The suit in partition is a proceeding in rem. “In such cases, the jurisdiction of the Court (particularly as it is a special statutory proceeding) zuas confined to the subject matter set forth and described in the petition. There is no principle of law or justice which could or should extend it further.”The record shows that the premises described in the petition for appointment of guardian, and for the partition of which John Ewen was appointed guardian, have not been partitioned, but another lot, not mentioned in said petition, (being the lot in question) has. The petition announces to the parties defendants that a partition is demanded of the land, which it describes, The court had no authority to go beyond it, and the partition of any other land was clearly beyond the jurisdiction of the Court, manifest upon the record, and therefore void. (Corwithe v. Griffing, 21 Barb. S. C. R., 14.)2. The Court, at Special Term, erred in admitting the oral testimony, to prove that a bond had been filed by John Ewen, the quasi guardian in 1849: BecauseTo cut off or determine the rights of infants by a statutory proceeding, it is necessary that the record should show that all the necessary steps have been strictly followed. A guardian’s bond must have been filed in this case, pursuant to the order of appointment of guardian, and unless the record shows such bond on file, there is nothing to bar the infants Ewen from maintaining an action of ejectment for their portion of the premises in question, on coming of age. The purchaser is not bound to take a title in which he may be compelled to show in such action of ejectment, a bond filed, by evidence outside the record (which would probably be impossible.)
p. 426The record title must be complete.The Court, at Special Term, erred in admitting the oral testimony, to prove the due service of summons and complaint in the partition, and thereby supply the defect in record.Because, the defect in the proof of service of summons on infant defendants, in the partition suit, on which the plaintiff’s title depends, cannot be cured by oral evidence in another suit to compel the defendant to take title. The record of the partition suit must show- all the necessary proof and steps to cut off the infant’s rights.The defendant is not bound to take title to the premises in question, where he may be compelled to show, in an action of ejectment by the infants, a proper service of summons by oral evidence (which would probably be impossible,) and which in • this case becomes doubly necessary, because the alleged guardian did not attend to his duties after the order of appbintment.4. The Court, at Special Term, erred in admitting oral testimony, to prove that a bond had been filed by John Ewen, the quasi guardian, in 1849.For the same reasons as stated under the 2d subdivision of this point, to the testimony of Ewen.IV. John Ewen could not be appointed guardian of his infant children. He had an adverse interest to them. His wife being life tenant of the share to be set apart to the infants, and .also having or claiming an interest in fee in another portion of the premises; which interest in fee was not shown to the Court by the petition for appointing him guardian; the same being subsequently brought in by amendment, which at the same time reduced the infant’s interest. (The City of London v. Nash, 4 Atk., 885.)V. The infants Ewen, not having appeared or answered, and judgment being taken by default against them, they are not bound by the partition.Section 115 of Code, “When an infant is a party he must appear by guardian.”The practice in this partition is certainly an anomaly, as stated by Judge Hoffman in his opinion, and there shown, by the cases cited by him.VI. A court of equity has no means of binding the question
p. 427as against adverse claimants, or indemnifying the purchaser, if its own opinion should ultimately turn out to be not well founded; and therefore will not compel a purchaser to take any title where there is a rational doubt upon it, although the opinion of the Court might be that it was a good title.The defendant cannot be compelled to take the premises unless the plaintiff has a good marketable title; i. e., one which may at all times and under all circumstances be forced by him upon an unwilling purchaser.The Court will not compel a purchaser to take a title which will expose him to litigation or hazard, and where there is the opinion of learned men against the title, a court of equity will not compel him to take. (Here we have also the opinion and judgment of Special Term.)Even if the Court should think the title good, it will not compel the purchaser to try its opinion at his expense. (Cooper v. Denne, 1 Vesey, cases cited in note; Stapleton v. Scott, 16 id., 274; Braybroke v. Inskip, 8 id., 428; Roake v. Kidd, 5 id., 647; Rose v. Calland, id., 186, 188; Smith v. Death, 5 Madd., 371; Price v. Strange, 6 id., 159, 164; Seymour v. Delancy, 1 Hop. Ch. R., 436; Pyrke v. Waddingham, 17 Eng. L. and Eq. R., 538.)The English Courts will not compel a purchaser to take title, unless it is so entirely free from doubt that they would loan money upon it. (Sheffield v. Mulgrave, 2 Vesey, J., 526, 529; Jarvis v. Northumberland, 1 J. & W., 557.)YII. John Ewen’s answer in the partition proceedings, made and filed in 1857, under an order that it be filed nunc pro tunc as of 1850, was simply a nullity. His power, if he ever had any, was, after the judgment, at an end. He had never consented to act, never appeared, never answered. He was not guardian at the time.The answer, filed seven years after judgment, submitted nothing to the Court. The object of the answer was to enable the Court to. look into and guard the interests of the infants before judgment. The Court could not at this time alter or amend the judgment if wrong.The partition was at an end with the entry of said judgment in 1850. If the infants’ interests were not barred in the premises
p. 428in question at that time, the filing of an answer in 1857 cannot divest that interest.VIII. The deed given in evidence, has no bearing in the case; and if it had, John Ewen had no power to sign any conveyance whatever for his children, and would only show, as he has, in his affidavit, (made to obtain leave to file an answer, nunc pro tunc,) an anxiety to conclude his children’s rights, incompatible with his duty as guardian.—-The sole question in this case relates to the plaintiff’s title to real estate in the city of Kew York, which is admitted to be good if a judgment, in partition, rendered in the Court of Common Pleas of the city and county of Kew York, in the year 1850, is valid.
Prior to the partition, the four infant children of John Ewen and wife had an interest in remainder in these lands (after their mother’s death), and the important question is whether they have been divested of that interest by the decree in partition ?
Many irregularities in those partition proceedings are complained of which need not here be considered; since a mere irregularity, which the Court may at any time correct, does not make the judgment void, and cannot now be reviewed in this collateral way.
A careful examination of the case discloses clearly and beyond all question, the following:
First. That the Court of Common Pleas in which the judgment was rendered had jurisdiction of the subject matter of the action. (2 R. S. 317, § 2; Stat. 1849, p. 701; Code, 1849.)
Second. That the lands being situate in the city of Kew York, and the parties residing there, and the defendants all having been personally served with the summons and complaint, the Court had jurisdiction both of the subject matter of the suit and of the parties to the action.
Third. That John Ewen, the father of the four infant children, was appointed the guardian ad litem, and filed the proper bond, and notice of that fact was served upon the plaintiff’s attorney, and that the summons and complaint in the partition suit were then served personally upon their said guardian, and upon each of the infants.
p. 429Fourth. That the lands were partitioned among the several owners according to their respective rights, and final judgment in partition was signed, and the judgment roll was filed August 7th, 1850.
Fifth. That the lands in controversy were by said judgment in partition allotted to Wm. H. Ogilvie, from whom the plaintiff derives title; and that in order to confirm the title more effectually in said Ogilvie, John Ewen (for himself, and as guardian for his four infant children,) and all the other parties to the partition suit, joined in a deed of quitclaim to said Ogilvie, reciting the judgment of the Court of Common Pleas in partition, the appointment of the said guardian, &c.
This deed is dated Hovember 28, 1850.
The guardian did not enter any formal appearance, nor put in any answer for the infants, but all the defendants in that suit, suffered default"; and judgment as by default, was rendered that partition be made.
In accordance with that judgment, the parties entered into their respective estates, and there is no suggestion of fraud or deception of any kind, or of any injustice having been done to any one, in making the partition.
In July, 1857, and before the commencement of this action, a question having been made as to the propriety of a judgment against the infants by default; the guardian ad litem applied to the Court for leave to file his answer nunc pro tunc, as of the 21st of September, 1849, which application was granted and the answer was filed.
The guardian appears to have been aware of each and all of the proceedings in partition, and to have been watchful of the interests of the infants who were his own children, but seems not to have been aware that any answer was necessary, since there was no objection to the prayer of the complaint.
Ho question whatever is made of the good faith of the proceedings in partition, nor is there a suspicion that the infants have been defrauded; but the defendants insist that by reason of defects in the partition proceedings the judgment was invalid, and that the infants’ interests in these lands were not divested, and that, therefore, the plaintiff’s title is defective.
If the guardian had originally appeared and put in the same
p. 431We conclude that the judgment of the Court of Common Pleas is not void. That until reversed it is valid. That the plaintiff’s title is not bad by reason of any defects pointed out by the defendants’ counsel, and that the judgment should be reversed, and a judgment entered that the contract be specifically performed.
—First. Was the appointment of John Ewen, as guardian of the four minors, regular; or if irregular, was it irregular merely, or coram non judice, and void?
Second. Does the omission of the guardian, (assuming his appointment not to be void,) to file an answer, affect the validity of the judgment?
Third. If it does, was the defect cured by the filing of an answer by the guardian, under the order authorizing it? The proper answer to these questions, will dispose of all points presented by the present appeal.
In considering the first of these questions, (as well as the last two,) it should be borne in mind that the .Court of Common Pleas for the city and county of Hew York, is a Court of general jurisdiction, within the common law meaning of that phrase. (Foot v. Stevens, 17 Wend., 483 ; Hart v. Seixas, 21 id., 40.)
Under all statutes passed by the legislature of the State of Hew York, giving power to its Courts to make partition of lands, that Court has had jurisdiction of proceedings for that purpose, when the land to be partitioned was situate in the city and county of Hew York. (Act of March 16, 1785; 1 vol. Laws of New York, Gr. ed., p. 165, § 1; 1 R. L., p. 507, § 1, and statutes cited in a note thereto; 2 R. S., 317, § 1.)
When the proceedings in question were commenced, and until after final judgment was rendered, the Code as amended by the act of April 11, 1849, was in force, (Laws of 1849, p. 613.) It was not again amended, until July 10, 1851, (Laws of 1851, p. 876), except in the single matter, found on the eighth page of the same volume.
By the Code, the powers of the Court of Common Pleas are as plenary in all actions of which it had jurisdiction, "as those of any other Court. It has jurisdiction of suits at law, and in equity, (the Court of Chancery having been abolished); and
p. 432under the Code, the mode of procedure in all Courts of record is the same.
The Code of 1849, (Laws of 1849, p. 701, § 448,) provides, that “theprovisions of the Revised Statutes relating to the partition of lands, tenements and hereditaments, held or possessed by joint tenants, or tenants in common, shall apply to actions for such partition brought under this act, so far as the same can be so applied to the substance and subject matter of the action, without regard to its form.”
By the provisions of the Revised Statutes, (2 R. S., 317, §§ 2 and 11), the guardian of minor defendants was to be appointed, before a petition for partition was served, on notice to their general guardian of an intention to apply for such an appointment.
If these provisions are made applicable to actions for partition under the Code, by section 448, of the Code of 1849; then the appointment was strictly regular, and was made in a manner authorized by statute law.
By the act of the 16th of March, 1785, (supra,) and which was the first act passed for the partition of lands under the state government, (1 R. L., p. 507, note*), no action of any Court was required to appoint commissioners to make partition except in a certain contingency. A party wishing partition to be made, appointed commissioners for the purpose, and advertised as prescribed by section 1, of the act of March 16, 1785; and if no objection was made to such commissioners; they proceeded to make partition. No guardians were appointed for infants, in the proceedings initiated according to section 1, of that act.
The provisions of sections 15 and 16 of that act, conform in substance, to the subsequent statutes in relation to the partition of lands, by proceedings in Court for that purpose; and provide for the appointment of guardians for minors. (§ 16.)
By sections 15 and 16 of that act, it would seem that the guardian ad litem might be appointed, after the petition for partition was presented.
Under the act of April 12, 1813, the Court was authorized to appoint guardians for minors, for any of the purposes intended by that act, “ before or after the commencement of any proceeding by virtue thereof,” (1 R. L., 511, § 8 ) and no previous notice
p. 433to the minor or his general guardian, of an intention to make, such an application to the Court was required.
Sections 2 and 3, of 2 Revised Statutes, 317, are in substance, the same as section 8, of 1 Revised Laws, 511, with the qualification that the former require notice of such application to be given to minors residing in the state, or to their general guardian. (Revisers’ Motes, 3 R. S., 710.)
That was done in the present case. The petition for the appointment, notice of presenting it, and an affidavit of due personal service of both, on the general guardian of the minors by delivering copies thereof “ to him personally,” are among the papers produced in evidence. The judgment roll contains the petition or a copy of it, and the order appointing John Ewen guardian, recites that it is made, on filing such petition, and satisfactory proof by affidavit, “ that due notice has been served on John Ewen, the general guardian of said minors, of an intention to apply to this Court ” for such order.
Under the Revised Statutes, therefore, the first proceeding was the appointment of a guardian for minors who were to be made defendants; the next was the service of a petition for partition on him, with notice of presenting the petition. The complaint and summons with service of them are, under the Code, a substitute for the petition and notice of presenting it and service of the latter two.
In the nature of things it is as proper and desirable that a guardian be appointed for minors before summons and complaint are served under the Code, as that one should havebeen appointed before service of a petition under the Revised Statutes.
Section 448, of the Code of 1849, authorizes such a practice. So, at all events, the Court of Common Pleas seem to have decided, in the case in question, and, as I think, correctly.
Rule 57, (of the Rules of 1849) which contains regulations for carrying into effect sections 115 and 116 of the Code relative to the appointment of guardians ad litem; by excluding from its operation the appointment of a guardian “ in a partition suit,” shows, as I think, that all the judges (who met on the 1st Wednesday of August, 1849, and made general rules of practice, under § 470, of the Code of 1849,) were of the opinion, that the
p. 434guardian in partition was to be appointed as the Eevised Sta-, tutes in that behalf had prescribed.
I, therefore, conclude, that the appointment of John Ewen as guardian was regular and valid. He gave, as guardian, such a. bond, and with such sureties, as the order appointing him and the Eevised Statutes required. The sureties justified, and were in due form approved by a judge of the Court. The bond thus executed and approved was filed with the clerk of the Court, on the 28th of August, 1849. These acts manifested, in an authen- ■ tic and satisfactory manner, the consent of John Ewen to act as such guardian, and expressed his acceptance of his appointment as guardian, and constituted notice to the Court of those- facts. He also gave notice of those facts, on the same day, to-the plaintiff. Thenceforth,- proceedings for a partition might be prosecuted, treating him as a legal and regularly appointed guardian.
The summons.and complaint, in the action, were served on him as such guardian. In proceeding under the Eevised Statutes, the petition and notice of-presenting -it (for which the former are substitutes )■ must have been served on the guardian, to operate as service of them on the minors. The service of the summons and complaint on the guardian is authorized by section 448 of the Code of 1849. The minors, by virtue thereof, .were regularly in Court, in an action of which the Court had jurisdiction, and in which it thereby acquired jurisdiction of the persons of the minors.
The minors were also severally, and personally, served with a copy of the summons and complaint.- This was a- sufficient service by the Code. It satisfied section 134, subdivision 2 of the Code, even if they were under the age of fourteen years; and if they viere over that age, then the service was clearly sufficient. (§ 134, sub. 4, id.) The proof made of the service satisfies the requirements of section. 138-. Any rules of Court, that require an affidavit of service to contain more particulars,, may affect questions of mere practice and regularity; but they cannot affect the jurisdictional competency of the Court to proceed in the action. Although the affidavit of service does not state all that rule (ninety of the Bales of 1849) requires; yet it nowhere appears that the service was not. in fact such as that rule requires the affidavit of the service should show it was.
p. 435From the service of the summons the Court acquired jurisdiction of the action, and had control of all the subsequent proceedings. (Code of 1849, § 139; Laws of 1849, p. 644.)
Second. Does the omission of the guardian to file an answer affect the validity of the judgment 1
Section 3, of 2 Revised Statutes, 317, declares that guardians appointed and who shall give bond as they direct “shall represent their respective minors in the proceedings for partition hereby authorized; and their acts in relation thereto, shall be binding on such minors, and shall be as valid as if done by such minors after having arrived at full age." The Revised Statutes do not, in terms, require an answer. Sections 23 and 25 (§§ 22, 24,) contemplate a judgment by default. Rule 78 (of the Rules of 1849,) does not contemplate that a guardian must answer. This rule was in force when the summons and complaint were served, and continued in force until after judgment perfected. The usual answer in such a case, under the former practice was, that the minors by their guardian say “ that they are strangers to all and singular the matters and things in the complaint in these proceedings set forth, and that these defendants are respectively infants under the age of twenty-one years,, and claim such interest in the premises as they are respectively entitled to; and they submit their rights and interests in the matter in question to the protection of this honorable Court.” (Hoffman’s Ch’y Pr., Yol. 3, p. lxxiv, No. 94; Yol. 1, id., 233.) This does not give the Court much information. Such an answer is not authorized by section 149 of the Code of 1849.
Notwithstanding such an answer was put in; section 168 of the Code, if applicable to such a case, would authorize the plaintiff and the Court to- treat all the material allegations of the complaint, as true, (Laws of 1849, p. 649.) And Rule 78 (of the Rules of 1849,) authorizes such a reference as was made to Mr. Warner, “where the rights and interests of the several parties, as stated in the complaint, are not denied or controverted, if any of the defendants are infants, or absentees, or unknown.”
It is by such a reference that the Court protects the interests of infants. And Rule seventy-eight (of the Rules of 1849), like Rule seventy-eight (of the Rules of 1858), by omitting all allusion to the fact of an answer being put in by a guardian for minors,
p. 436imports that the judges, making the rules, did not think such an answer material. The practice as to answering, and upon failure to answer, was to be sought in the Code, when no contrary rule was prescribed by the Revised Statutes relative to partition.
The omission of the guardian to answer, after he has been regularly brought into Court by a personal service of the summons and complaint on him, is as much an “ act ” within the meaning of section 3 of 2 Revised Statutes, page 317, as the putting in of an answer which states that he knows nothing, and has nothing to say, except that he wishes the Court to protect the minors.
I think an omission to answer is not an omission in conflict with any duty imposed by the Revised Statutes; is authorized by the Code, and proper when the allegations of the Complaint are believed to be true (Code of 1849, §§ 149, 157), and is a case provided for by Rule 78 of the Rules of 1849.
In construing section 448 of the Code of 1849, the two concluding paragraphs of section 471, and the Code itself, it must he borne in mind that “the rule of common law, that statutes in derogation of that law are to be strictly construed, has no application to that act.” (The Code; Laws of 1849, p. 704, § 467.)
I think the judgment was not invalid, or ineffectual, merely because no answer was filed by the guardian of the minors.
3d. But, at most, the omission to answer affected only a question of mere practice; it did not render all proceedings subsequent to service of the summons and complaint coram non judice and void. The Code of 1849, § 173, declares that “ the Court may, at any time, in furtherance of justice,” do certain specified things, and “may likewise, in its discretion, allow an answer, . . to be made, or other act to be done after the time limited by this act.”
I think the legislature competent to vest such a power in the Courts, and that amendments made under the power thus granted are, until the order allowing them is reversed or otherwise annulled, as valid and efficient as if the acts done by force of such permission to amend had been first done within the regular time, as prescribed by the Code.
I speak, of course, of a case like the present (as it is unnecessary to go further), where the thing omitted is really a matter-of mere form, and the amendment allowed raises no new question,
p. 437nor presents any one that has been adjudicated, in any new or modified form.
The Code of 1849, section 176 (Laws of 1849r p. 651) declares that “ the Court shall, in every stage of the action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect.”
As it is found and not controverted, that the partition made was just and fair, and that the interest of each party was truly stated; it is a matter of no practical consequence to the minors whether their guardian omitted to put in an answer; or whether he had put in one stating that the complaint was true, (if he knew its allegations to be true); or denying that he had “ any knowledge thereof sufficient to form a belief”; or such a one as was put in, nunc pro tunc.
The provisions of the Revised Statutes, in relation to a writ of error upon any final judgment in' partition are, that error may be assigned “for any erroneous adjudication upon the rights of any of the respective defendants or respective plaintiffs,” &c. 2 R. S., 329, §§ 77 to 80, (§§ 75 to 79.)
Section 35 (§ 36), p. 322, declares that the “judgment shall be binding and conclusive, (1.) on all parties named therein, and their legal representatives who shall, at the time, have any interest in the premises divided, as owners in fee, or as tenants for years, or as entitled to the reversion, remainder or inheritance of such premises after the termination of any particular estate therein,” &c. The controlling effect of such a statutory provision, is strikingly illustrated by Vanderpoel v. Van Valkenburgh, (2 Seld., 190, 198 and 199.)
In addition to these views, it may be observed, that the proceedings cannot, now, be set aside for any irregularity in the progress of them. (2 R. S., 359, § 2.) Section 176, of the Code of 1849 (the law in force when the partition suit was commenced and judgment in it was rendered) prohibits a reversal, for any defect in the proceedings, which shall not affect the substantial rights of the adverse party.
The manuscript opinion furnished to us, in Croghan v. Living ston., (since reported in 17 N. Y. R., 218,) seems to me, to be
p. 438decisive upon the questions raised in this case. In perusing that opinion, and considering what is casually said of proceedings by petition, before the Code, in the common law courts, it should be borne in mind, that in actions for partition under the Code, the powers of the New York Common Pleas to amend; or do any other act in the cause, whether by way of amendment or otherwise, are as ample as those of the Supreme Court. As to actions of which both have a concurrent jurisdiction; the powers of either Court in respect to the proceedings in such action, are as extensive as those of the other, or those of the late Court of Chancery; and the same intendments will be made to support the judgment of the Court of Common Pleas, as of either of the others.
But the only defect is, (assuming the guardian to have been regularly appointed, and to have been before the Court as such) that the plaintiff proceeded to judgment before the guardian formally appeared and put in an answer. As the rights of the infants were truly stated in the complaint, (as it was amended) and as a fair partition was made, the minors have not been prejudiced in any substantial right.
The service of papers, made subsequent to the service of the summons and complaint, is said to be defective and worthless. If the provisions of the Code of 1849 regulate this matter, no service of any paper or proceeding in the ordinary course of the action, subsequent to service of the summons and complaint, was necessary, as no “ notice of appearance in the action ” was given, nor demurrer or answer was served by either defendant. (§ 414, Laws of 1849, p. 694.)
By 2 Revised Statutes, section 14, (§ 15,) page 319, affixing the notices “in the office of the clerk of the Court,” is made equivalent to personal service on the party to be affected thereby, and is expressly authorized, when a different service has not been specially directed.
It does not appear that service was not also made in that manner; and if held to be the appropriate mode; it will be presumed, in support of the judgment of a Court of general jurisdiction, to have been so made.
The phrase, “ so far as the same shall have appeared,” in sectional, (§ 23) 2 Revised Statutes, 321, and the phrase, “ so far as the
p. 439same have appeared,” contained in the judgment or decree, refers to the rights, titles and interests of the parties, and not to the parties themselves, as the respondents’ counsel erroneously supposes and contends. And the judgment or decree, states the rights and interests of the minors; they having been ascertained under the reference for that purpose.
It is only when, “ the part or interest of any parties who shall not have pleaded in the cause,” . . “in and to such premises, shall not have appeared by the evidence in the cause,” that section 24, (§ 25,) of 2 Revised Statutes, p. 321, requires that the “ Court shall give judgment that partition be made, so far as the rights or interests of the parties who are known, and have appeared in the said cause shall have been ascertained,” &c.
But in such a case, the parties whose rights have been ascertained, are to have partition, and an assignment to them of their ascertained proportion, and “the residue of the premises shall remain for the parties whose interests have not been ascertained,, subject to division between them at any future time.” (§§ 25, 26, 2 R. S., 321.)
The Court had power by the Revised. Statutes, to amend the complaint, in its statement of the interest of the parties. 2 Revised Statutes, 320, § 20. (sec. 19.)
Under the Code, which alone allows a party to proceed by action, the power to amend the complaint is unquestionable. (Code of 1849, §§ 169, 173, 176.)
• I think the complaint was erroneously dismissed, and that the judgment appealed from should be reversed. All the material facts are either admitted by the written stipulation of the parties or are established by record evidence, and a new trial, therefore, would seem to be unimportant to either party, and I understand is not desired by either.
Judgment should be entered, that the contract in question be specifically performed.
Hoffman, J., concurred.
Judgment accordingly.