7 Abb. Pr. 472 | N.Y. Sup. Ct. | 1858
—This is an action for the partition of lands between the heirs of the late Henry Waring, deceased. The proceedings have been complicated, and have devolved upon the parties very heavy expenses, which have been awarded to their counsel by a decree of this court. Ho doubt the various measures which have been adopted have been necessary for the protection of the rights of the owners, and the security of the purchasers; and the professional gentlemen who have been en
The lands in question have been sold to several persons under the decree. The purchasers object to the titles on various grounds, resulting from what they deem defective and irregular proceedings in the suit, and the claims of other persons upon the property, which, they allege, have not been concluded ~by the decree ; and one of them moves that the sale to him should be vacated, and the money advanced by him returned. The plaintiffs move, with the concurrence of all the defendants, that the purchasers shall be required to take the usual conveyances in such cases, and pay the consideration money.
The first objection set forth in the affidavit of the counsel for the purchasers (and which, I must say, has been so hastily drawn that it is almost illegible) is, that the complaint was not filed with the notice of lis pendens, nor indeed until'the time when the decree was docketed. The allegation is countenanced by the acknowledged fact that there is no complaint filed, at an earlier date than the time of the decree, in the office of the county clerk, nor any minute in the appropriate book that the complaint had been duly filed. Against this, however, one of the plaintiffs avers positively that the complaint was inclosed in the notice of Us pendens, when it was filed in his presence by the late Mr. Crist, who was afterwards drowned, and that it was taken from the files of the office subsequently, to be used on an argument before one of the judges of this court, and was probably not returned. The fact that no minute of filing the paper is to be found is, no doubt, explained by the circumstance that it was inclosed in the notice, and' that it thus escaped the attention of the officer to whom it was delivered. I am satisfied that the notice and complaint were filed together, and that the notice immediately became, and continued to be operative, and a correspondent determination may be incorporated in the order. The absence of the complaint from the clerk’s office did not suspend the effect of the notice, and the irregularity was subsequently cured by filing a copy with the decree pursuant to an order of this court.
There were unquestionably some irregularities in reference to the infant defendants. Although their guardian was duly appointed, and a proper bond was originally executed by him, yet it was never filed, and it was probably lost at the time of the disaster which caused the death of Mr. Crist. I do not agree with Judge Hoffman that the objection that the bond has not i:been filed, goes to the jurisdiction of the court in the action against the infants. Jurisdiction as to them is acquired by the service of the process :
Whether a bond was executed and filed pursuant to the order does not distinctly appear. If the last order referred to that formerly made, and a bond was executed and filed, conformably to it, the difficulty resulting from the omission to file the original bond was cured. If not, it seems to me that the bond executed and filed in 1857, pursuant to an order of this court, and which is unobjectionable (except as to timé), will so far maintain the proceedings as to protect the purchaser under the provisions of the act of April 15, 1857, extending the benefits of section 173 of the Code to suits in partition. By that section the court may, after judgment, amend any proceedings by correcting a mistake in any respect. Under that enactment, it has been held that an undertaking on an arrest, or on an appeal, may be corrected. (Billinger a. Gardner, 12 How. Pr. B., 381; Wilson a. Allen, 3 lb., 369 ; Schermerhorn a. Anderson, 1 Cow., 430.) Surely the correction of a mistake in expressing the terms of a guardian’s bond in an order, an omission by the principal to sign it, or an omission to file the bond originally executed, would be going no further. I am satisfied that the omission to file the original bond has been cured by the subsequent proceedings, so that the decree effectually binds the interest of the infant defendants.
If the plaintiffs have neglected to file any of the papers requisite to render the judgment record conformable to the provisions of the Code, the order to be entered may grant them leave to do so nunc pro tunc, and the purchasers must not be required to take their conveyances until such papers (to be specified in the order) shall have been filed.
It would undoubtedly have been the most proper course to have filed suggestions of the deaths of two of the defendants when they occurred. As their interest survived to the remaining defendants, nothing more was necessary. (2 Rov. Stats.,
The report states very fully and clearly the amount of the portions which were owned by the deceased persons, and it is beyond dispute that the Only heirs at law are the remaining parties to this action, and it is probable that the purchasers would be fully protected without any formal suggestion of the death of the two defendants upon the record. The objection that there is no proof of the publication of a notice to an absent defendant, nor of any service of a summons upon him, is obviated by his death, and the succession of the remaining parties to his estate.
If I am right in my conclusion that the notice of Us pendens was duly filed, no subsequent judgment or decree against any of the continued parties can impair or affect the title of the purchasers. They are also protected against all persons having general liens, or incumbrances by judgment or decree on any undivided share or interest by the notice to such creditor published by the referee, and their omission to prove their claims before him. (2 Rev. Stats., 324, 327, §§ 44, 63.)
It is suggested that Henry W. Wheeler, one of the original defendants, and one of the heirs at law of Henry Waring, deceased, who died in July, 1854, was at the time of his death indebted to various persons, and that he left no property except his portion of the estate of his said grandfather, and that such estate may yet be sold to pay his debts, by an order of the surrogate, notwithstanding the proceedings in this action. There is no Sufficient proof of such indebtedness, and I cannot act upon the general allegation. Independently of that, I am inclined to
The action of the court is not limited by the statute in that particular; on the contrary, it declares that the conveyances upon a sale shall be a bar against all the parties, and against all other persons claiming from such parties in either of them. (1 Rev. Stats., 327, § 61.) The proceeding is remedial, and notice is given, and if the representatives or creditors of the deceased persons do not think proper to interpose promptly, others, and especially innocent purchasers who have no knowledge .of the indebtedness, nor any means of obtaining it, should not suffer. If there is a conflict between the powers of the Supreme Court in cases of partition, and of the surrogate in ordering the sale of real estate for the payment of the debts, that first exercised should on every principle prevail. The opinion expressed by the late Judge Barculo, in Hyde a. Tanner (1 Barb. S. C. R., 78), has no reference to the effect of a sale in a partition suit, and besides, it seems to have escaped the attention of that learned judge that the creditors of the deceased may within the three years specified in the Revised Statutes, cause his executors or administrator to proceed to, sell his real estate (2 Rev. Stats., 88, § 48), and that if they neglect to enforce such remedy, others ought not to be prejudiced by their delay.
There is no proof of any existing indebtedness of the estate of Henry Waring, deceased, except as to the claims of Henry Clark against the deceased, and the defendant, Henry P. Waring, a partner, and no positive proof as to that. There is unquestionably a difference between the claims of his creditors, if there are any, and those of his heirs. His creditors do not claim under, or from the heirs or either of them, and they are not therefore within the terms of the statute; neither do they have any general lien or incumbrance upon any undivided share or interest in the land by judgment or decree, which would be by omitting to establish them before the referee. But I am inclined to agree with the late surrogate of Hew York, that after the expiration of the three years, within which the executors or administrators may apply for a sale of the real estate, it is discretionary with the surrogate whether to order such sale or not upon the application of the creditors.
Ro costs are awarded .to either party as against the other, and as liberal fees have heretofore been allowed for professional services, I shall not direct any further deduction to be made from the funds.
See Croghan a. Livingston, 6 Ante, 350.