Rice v. Barrett

• Decision Date: 13 April 1886
• Citation: 6 N.E. 898,102 N.Y. 161
• Parties: RICE v. BARRETT and others.
• Court: New York Court of Appeals Court of Appeals

102 N.Y. 161

6 N.E. 898

RICE

v.BARRETT and others.¹

Court of Appeals of New York.

April 13, 1886.

Appeal from order of general term supreme court, Second department, affirming order of special term requiring purchasers to complete their purchase.

Joseph A. Burr and N. B. Sanborn, for appellants, Hetty J. Barrett and others.

Joshua M. Van Cott, for respondent, Eugenia A. Rice.

DANFORTH, J.

After our decision upon a former appeal in this case (99 N. Y. 403, and 2 N. E. Rep. 43,) the sale then under review and subsequent proceedings were vacated and a resale ordered. This was had on the fifteenth of October, 1885, and one Charles P. Haughian became the purchaser of one of the houses and lots. He assigned his bid to Ann Haughian and Margaret Haughian. They alleged defects in the title, and refused to complete their purchase. Upon motion, the court at special term required them to do so. The general term affirmed the order, and in that decision we concur.

It is well settled that one who buys at a judicial sale may demand a title free from any reasonable doubt as condition precedent to the completion of his purchase. Jordan v. Poillon, 77 N. Y. 518;People v. Board of Stock Brokers, etc., 92 N. Y. 98. Here the sale was in partition, and the appellants contend that the procedure in the action was such as to leave them to the hazard of a contest with persons who, as the devisees of the common ancestor, had an interest in the premises, and should have been parties to the action, but by reason of certain irregularities in its preliminary stages were not properly brought in, and so are not to be bound by the judgment. On the other hand, the respondent insists that these persons were not necessary parties, and that it is of no consequence whether the steps taken against them were effective or not. We shall therefore confine our inquiry to the respondent's proposition.

Jacob Barrett was the common source of the title. He died, leaving a will and testament, the residuary clause of which includes the premises sought to be partitioned, and is in these words:

‘All the rest and residue of my estate, both real and personal, of whatsoever character and kind, I leave in trust of my executors for the benefit of my children and grandchildren; the interest of all such property to be invested in safe securities, and kept together until twenty (20) years after my death, and at that time it is my will and desire that the final division of my estate shall take place according to the tenor and meaning of this, my last will, among my surviving children; the child or children of either of my children who may have departed this life previous to this distribution standing in the places of such deceased parent.’

By a codicil he says:

‘The final division of my estate shall take place among my surviving children at the period of ten years after my death, instead of twenty years, as specified in my said will, and that at such time the amounts devised to my children be first equalized, and the residue divided as therein directed. I do further direct that the portions of my estate left to all of my children shall be subject to the following trust, to-wit. In trust to them for life, and, after their death, to such children as they may leave surviving; the child or children of any deceased child to take such share as his, her,...