Thwing v. Thwing

| N.Y. Sup. Ct. | Oct 15, 1859

Ingraham, J.

Pending the advertisement of sale, the plaintiff in this action died, and his share of the premises sought to be partitioned, passed to.his three children. Two of them were defendants in the action originally. The third was made plaintiff by order of the court, as his successor in interest. The advertisement was continued in the same form as originally commenced, and the premises were sold in pursuance thereof. The purchaser now objects to the title, because there was not a new advertisement after the plaintiff was introduced into the cause.

I do not see that such a course was in any way necessary. The Code, section 121, provides for such a case, and authorizes the court to order the action to be continued by his successor in interest. . The action is to be continued—to proceed—not to go back and repeat what had been done ; but to be continued. If the successor had been made defendant, he might have claimed the right to put in an answer and defend, but the plaintiff could do no such thing; by coming in as plaintiff, he assumes all the former plaintiff’s acts, admits the proceedings previously taken to be correct, and adopts them, as his own, and by proceeding he is estopped from afterwards denying the regularity of the judgments and subsequent proceedings. There are other reasons why it was not necessary to proceed anew. The judgment of partition and sale was perfected before the death. The rights of the parties thereafter were not in the land but in the proceeds. Wherever the plaintiff’s share vested, the partition was perfected, and the interest attached to the money, the proceeds of the sale, rather than to the land. The same sale and partition must be made as before, and the only difference would be in the distribution of the share of the deceased party, which would be regulated on motion.

I am of the opinion there was no irregularity in the proceeding, and that the purchaser should complete his purchase.