Boyer v. East

• Decision Date: 06 February 1900
• Citation: 161 N.Y. 580,56 N.E. 114
• Parties: BOYER et al. v. EAST et al.
• Court: New York Court of Appeals Court of Appeals

161 N.Y. 580

56 N.E. 114

BOYER et al.

v.EAST et al.

Court of Appeals of New York.

Feb. 6, 1900.

Appeal from supreme court, appellate division, Fourth department.

Action by James E. Boyer and another against Ellenor East and others. From a judgment of the appellate division (49 N. Y. Supp. 1132) affirming a judgment for defendants, plaintiffs appeal. Affirmed.

In 1879 the plaintiffs' father, James E. Boyer, died intestate, and seised of certain real estate in the city of Rochester. He left, him surviving, a wife and two children, the latter being these plaintiffs. In 1882 the mortgagee in a mortgage made by Boyer and his wife to secure the payment of his bond instituted foreclosure proceedings, making Mrs. Boyer and the children defendants. The latter were then infants, and a guardian ad litem was appointed for them. A judgment of foreclosure was obtained; directing a sale, and permitting any of the parties to purchase. A sale was had in May, 1882, at which Mrs. Boyer became the purchaser; being the highest bidder, and her bid convering the amount of the mortgage indebtedness upon the property. The same day that she received the referee's deed, she conveyed the premises by warranty deed to the defendant Palmer, the mortgagee, for the sum of $2,500. She received all of this sum, less the mortgage debt, taxes, and sundry loans owing to Palmer. Over a year later, Palmer conveyed the premises to the defendant Blair, who in turn conveyed to the Easts. At the time of the purchase by their mother, the plaintiff James was in the seventeenth year of his age, and the plaintiff Daniel was in the fifteenth year of his age. They respectively became of age in December, 1886, and in September, 1888. Their mother died in 1890. Within a few weeks after the purchase and subsequent sale by Mrs. Boyer of the premises, she married again, and she used some of the moneys received by her upon the sale to Palmer in the purchase of a saloon. Daniel lived with his mother until he married. James, after his mother's marriage, lived elsewhere until he married, and for some part of the time his mother paid something towards his maintenance. This action was commenced in February, 1896, against the persons who had acquired title to the premises through the conveyances, or who were in occupation as tenants, to set aside the foreclosure sale, and to recover the possession of the property, and for an accounting as to the rents and profits. The trial was had at the equity term of the court, and resulted in the dismissal of the complaint, upon findings to the effect that Mrs. Boyer had acquired a good legal title, which passed to Palmer by her conveyance. There was no finding of any fraud in the transaction, nor any request to find such, and the evidence does not warrant the inference that there was any bad faith or any fraudulent practice. The judgment entered upon the decision of the trial judge had been affirmed at the appellate division, in the Fourth department, and the plaintiffs have appealed to this court.

Wm. T. Plumb, for appellants.

Horace McGuire and George Raines, for respondents.

GARY, J. (after stating the facts).

The plaintiffs contend-First, that the sale to their mother was voidable under the rule in equity which forbids purchases by trustees; and, second, that it was void under section 1679 of the Code of Civil Procedure. Their first contention raises the question of the right of their mother, who was their guardian in socage, to purchase in her own name at the foreclosure sale. Under the statutes of this state, as their father had died intestate, they became vested with an estate in his lands; and, being infants, their mother was their guardian in socage. Such guardianship continues, unless superseded by the appointment of a testamentary or other guardian, under the provisions of the statute, until an infant arrives at the age of 21 years. 1 Rev. St. pp. 718, §§ 5, 7; Byrne v. Van Hoesen, 5 Johns. 66;Emerson v. Spicer, 46 N. Y. 594. As guardian in socage, there devolved upon her the custody of the infants' interests in the real estate (2 Rev. St. p. 153, § 20), with its consequent responsibilities, and she could not do any act in opposition to their interests. But she had also a personal interest in the lands, as dowress, and in that respect was a tenant in common with her children. Upon the foreclosure sale she could protect that common interest, and she committed no breach of any legal duty towards the infants in purchasing and in taking the deed in her own name. She had the right to do so, by reason of her own interest in the property; and, indeed, were she only interested as a guardian in socage, the deed might be to her in her own name. That she was such guardian by force of the statute did not constitute such an...