11 N.Y. St. Rep. 274 | The Superior Court of New York City | 1887
The facts of this ease sufficiently appear in the findings.
On Eebrnary 14, 1887, the day of the auction sale of the lots purchased by the plaintiff, the defendant De Graaf was the owner, in fee, by virtue of a deed from James li. Inger
On March 1,1887, De Graaf conveyed the lots to defendant, Ida M. Ingersoll, by a deed of bargain and sale without covenants, and she tendered a deed with full covenants to the plaintiff, which the plaintiff refused.
Testimony was offered by defendants at the trial, subject to objection on the part of the plaintiff, that the deed of October, 1886, from Ingersoll and wife to De Graaf, was intended only as a mortgage to him as president of the Bowery National Bank, and to secure payment of money lent by the bank to Ingersoll.
The objection that this testimony was incompetent and irrelevant should, in my opinion, prevail.
The plaintiff was justified in depending on the recorded deed from Ingersoll and wife to De Graaf as conclusive evidence of title in him, and the deed from him to Ida M. Ingersoll in itself implied that the title u*as then in him with full power and right to convey to her in fee. But
The next objection is, that the plaintiff was required to execute a purchase money mortgage, not to the vendor, but to the Bowery National Bank, a stranger to the transaction, as far as plaintiff and his rights and interests were concerned.
The plaintiff was justified in his refusal to execute this mortgage. It was not called for in his agreement. By his agreement, he was entitled to a good, perfect and indisputable title in fee, and to a full warranty deed, with covenants free and clear of all incumbrances—the deed to be given by the vendor.
The title tendered was defective as to one undivided fourth part of the property, which fourth part was vested in Theodore C. Bacon, an infant under the age of fourteen years, and residing outside this State, and he was never properly made a party to a suit in partition of the property, through which suit De Graaf and his grantor Ingersoll _ claimed title.
The affidavit on which the necessary order for service of the summons and complaint on this infant by publication was granted is objected to as insufficient. I think that this objection cannot be sustained (Kennedy v. N. Y. Life Ins. Co., 101 N. Y. 487).
A further defect appears in the order appointing a guardian ad litem of the infant. The order failed to direct the guardian to give a bond, in compliance with section 1536 of the Code, which requires the filing of a bond with the clerk of the court, before the guardian can enter upon the execution of his duties ; and that such bond cannot be dispensed with even although he is the general guardian of the infant. These requirements I regard as peremptory and essential (Code Civ. Pro. § 1536).
The result is that the infant defendant was not served with summons, etc., and was not made a party to the suit; and until the infant has been served with summons, either personally or by substitution, no guardian ad litem could be appointed (Ingersoll v. Mangam, 84 N. Y. 622).
The guardian in this case did not file a bond at any time before the entry of the judgment in partition or until after the auction sale. Efforts were then made to cure this defect by orders “ nunc pro tunc.” These orders “ nun o pro tune” did not, I think, produce the desired result. The judgment
. There is no way by which an infant can be brought in court in a partition suit but by personal or substituted service ; and until that has been made a guardian ad litem cannot be appointed (Ingersoll v. Mangam, 84 N. Y. 622). In all litigations in which infants’ interests are concerned, special care should be taken that they be protected by every safeguard that the law has provided in their behalf.
• This is an action at law to recover the deposit paid by the plaintiff, and the damages to which he has been subjected by reason of the breach of contract by the defendant De Graaf. The burden is on the plaintiff to prove that the contract has been broken (Bayliss v. Stimson, 53 Super. Ct.[J.& S.] 225).
The defendant DeGraaf, through the auctioneer acting as •his agent, contracted to give plaintiff a good, perfect and indisputable title, free from all incumbrances. This, is mjT opinion, he has failed to do, and plaintiff is entitled to judgment against defendant for the relief demanded in his complaint
In this case an affidavit, upon which an order for service of summons by publication under Code Pro. § 135, was granted, stating that the defendants “ cannot after due deligence be found within this State,” that they were residents of other States named, and that the