Opinion
March Term, 1899.
Simon Fleischmann, for the appellant.
Jacob Stern, for the respondent.
Under section 1532 of the Code of Civil Procedure, the plaintiff is technically entitled to maintain an action for the partition of the property described in the complaint. It is apparent, however, that the conveyance by the plaintiff to the defendant Mary Ann O'Toole of an undivided one-third of her estate for life in the premises in question was made for the purpose of enabling her to obtain the value in money of such life estate, regardless of the interest of the owners of the fee now in being, or the rights of those who in future may become the owners of such fee. If the sale is consummated, the result will be that the purchase price which represents the value of the fee, as well as of the life estate, will be depleted in the amount of between $500 and $600 for the costs and expenses of the partition. The value of the life estate would amount to about $2,200, so that there would only be left a balance of about $1,200 or $1,300, out of property which is concededly worth $4,000, for the children of the plaintiff if she leaves any children her surviving, or if not, then for the incompetent daughter of the testator and the infant granddaughter, who, upon the death of the plaintiff without issue, would become absolute owners of the fee.
It is difficult to discover why any portion of the proceeds realized by the sale of the fee of the premises should be applied to the payment of the costs and expenses of the partition.
The judgment of sale further provides "That the said referee pay all taxes, assessments and water rates which are liens upon the property sold, and redeem the property sold from any sales for unpaid taxes, assessments or water rates which have not apparently become absolute."
The amount of such taxes and water rates is not disclosed by the record before us, but it is apparent that such charges, if any, should be fully paid by the owners of the life estate, and no part thereof paid out of the proceeds realized upon the sale of the fee of the premises.
The record before us fails to disclose any reason why the fee should be sold at all. If the plaintiff and the defendant Mary Ann O'Toole are desirous of realizing upon their life estate, and are in accord, as they clearly are, there is no reason why such life estate should not be sold at private sale, or, if they are not in accord, then a partition of such life estate could be had, and it could be sold without prejudice to the interests of the owners of the fee of the property. If any reason does exist which is not disclosed by the record why the entire property should be sold, then the entire costs and expenses, the taxes and water rates, should be paid out of the share of the plaintiff and the defendant Mary Ann O'Toole in the proportion of two-thirds and one-third, and the entire balance should be deposited with the county treasurer of Erie county to be invested by him, and the net income to be paid to the plaintiff and the defendant Mary Ann O'Toole, in the proportion of two-thirds and one-third respectively, the principal to be retained for the children of the plaintiff in case she leaves such her surviving, and if not, then to the incompetent daughter and infant granddaughter of the testator, share and share alike.
In the case of Monarque v. Monarque ( 80 N.Y. 320) it was held that "a judgment and sale in partition only concludes contingent interests of persons not in being, when the judgment provides for and protects such interests by substituting the fund derived from the sale of the land in place of it, and preserving the fund to the extent necessary to satisfy such interests."
In this case no such provision is made to protect the interests of the persons not in being, to wit, the children which the plaintiff may leave her surviving, and no provision is made for the full protection of the defendant Alice O'Toole, the incompetent daughter of the testator, or Nelly Gleason, the infant granddaughter of the testator.
Under those circumstances, we think the purchaser, Mary Ann O'Toole, would not take good title to the premises in question, and that, therefore, she ought not to be required to complete the purchase.
If the learned county judge finds (which upon the record before us is quite apparent) that this action is the result of a scheme to cut off the interests of persons who may become entitled to the property in question, and who are not parties to the action, he may refuse to confirm the sale and leave the parties in the position in which they have placed themselves; and the County Court may afford the parties representing the incompetent daughter and the infant granddaughter an opportunity to more fully protect their interests respectively than they have yet done in this action.
The order appealed from should be reversed, without costs to either party. A copy of the decision of this court should be served upon the attorney for the committee of Alice O'Toole and upon the guardian ad litem of the infant, Nelly Gleason, and all proceedings in this action should be stayed until twenty days after the service of notice of such decision.
All concurred.
Order reversed, without costs to either party, and direction given to serve copy of this decision and opinion upon the committee of Alice O'Toole and guardian ad litem of Nelly Gleason, and a stay of proceedings is directed until twenty days after service of such decision and opinion.