Opinion
Submitted November 29, 1887
Decided December 13, 1887
Edward D. Bettens for appellant.
John J. Sullivan and Abraham Stern for respondents.
It appears by the report of the referee that the plaintiff's interest in the premises was that of tenant by the curtesy, and as such he was entitled to the possession and profits of the lands and premises described in the complaint, during his natural life; that the defendant, Alfaretta Reed, was seized in fee simple, subject to the plaintiff's estate, of one equal undivided one-half part of those premises; that the other defendants were infants under the age of twenty-one years and were seized in fee simple, subject to the same rights, each of one equal undivided one-sixth part of the premises. The principal contention of the appellant is placed upon the provisions of section 1538 of the Code of Civil Procedure, which, after naming the necessary parties to an action for partition, declares that "no person other than a joint tenant or tenant in common of the property, shall be a plaintiff in the action." The same section provides that every person having an undivided share in possession or otherwise in the property in question, as, among others, "a tenant by the curtesy," must be made a party to such an action. It is plain, therefore, the objection is simply that he stands upon the record as plaintiff, and not as defendant.
The judge at Special Term put the decision upon the case of Cromwell v. Hull ( 97 N.Y. 209) decided in October, 1884. In that case the same fact appeared and this court held that if a plaintiff in a partition suit was not authorized to maintain the action because not a joint tenant or tenant in common with the remainderman, still the defect was not jurisdictional, and the decree, if erroneous, not absolutely void. That determination applies to and covers this case unless the appellant is right in his contention that a different rule now prevails. The partition suit in the case cited was before the Code. That, however, can make no difference. The court in the present instance had jurisdiction of the parties and of the subject-matter of the action, and from the decision made, no appeal was taken. All the parties, therefore, are bound. The judgment in Cromwell v. Hull ( supra) covers the case and it is unnecessary to add to the discussion. We think the title offered to the purchaser was a good title and his motion to be relieved was properly denied.
The order appealed from should, therefore, be affirmed.
All concur.
Order affirmed.