Ford v. Clendenin

• Decision Date: 11 May 1915
• Citation: 109 N.E. 124,215 N.Y. 10
• Parties: FORD et al., v. CLENDENIN et al.
• Court: New York Court of Appeals Court of Appeals

215 N.Y. 10

109 N.E. 124

FORD et al.,

v.CLENDENIN et al.

Court of Appeals of New York.

May 11, 1915.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Nixola Greely Smith Ford and another against Gabrielle G. Clendenin and others. From a judgment of the Appellate Division (155 App.Div. 433, 140 N.Y.Supp. 1119), affirming a judgment dismissing the complaint, plaintiffs appeal. Affirmed.

The action was brought to have declared invalid and void a sale of the interest of the plaintiffs in premises in the complaint described, pursuant to an interlocutory judgment entered July 2, 1883, in an action brought by Gabrielle M. Greeley against Nicholas Smith and others, and that the decision, judgment, and al proceedings in that action and the order confirming the sale made pursuant to said interlocutory judgment therein so far as they affect the plaintiffs in this action, be canceled of record, and that all conveyances subsequently made by the purchaser at said sale so far as they affect, attempt, or purport to convey any of the right, title, and interests of the plaintiffs in this action in the whole, or any portion of the premises described in the complaint be declared invalid and void, and that it be adjudged and decreed that the interest of the plaintiffs in the real estate described in the complaint remains unaffected by the sale had pursuant to the action brought by said Gabrielle M. Greeley, and the proceedings and orders therein. The Special Term decided that the alleged cause of action was barred by the statute of limitations. The Appellate Division unanimously affirmed the judgment of the Special Term on the opinion written in that court. Ford v. Clendenin, 155 App.Div. 433, 137 N.Y.Supp. 54, 140 N.Y.Supp. 1119.

Further facts, so far as material, are stated in the opinion.

E.C. Crowley, of New York City, for appellants.

John Vernon Bouvier, Jr., of New York City, for respondents Clendenin and another.

Charles Haines, of White Plains, for respondents Hyatt and another.

CHASE.

Horace Greeley, the famous editor and writer, died November 29, 1872. His wife, Mary Y.C. Greeley, died October 30, 1872. The farm which had been occupied by them as a homestead at Chappaqua, N.Y., and where he wrote his book “What I Know of Farming,” contained about 80 acres of land. The legal title to all of it except two pieces thereof together containing seven or eight acres, but wholly included within the general boundaries of the farm, was vested in Mrs. Greeley at the time of her death. The legal title to the two pieces containing about seven or eight acres was in Mr. Greeley at the time of his death, but it was claimed by those interested in Mrs. Greeley's estate that she had the equitable title to those pieces,and the provision of Mr. Greeley's will tend to substantiate such claim. Mrs. Greeley left a will by which she gave, devised, and bequeathed all of her property to her two daughters, Ida and Gabrielle. She appointed her husband and her daughter, Ida executor and executrix, and provided that her personal property should be invested as in her will provided, and that her real property should be sold and the proceeds invested in the same manner as her personal property, and that the interest and income from all of her property be paid to her daughters in equal portions until her daughter Ida should arrive at the age of 30 years, at which time she directed that the principal be equally divided between them. Horace Greely did not qualify as executor of the will of Mrs. Greeley. Ida Greeley qualified as executrix and acted as such until her death. After her death the daughter Gabrielle was duly appointed administratrix with the will annexed of the estate of her mother.

The daughter Ida married on May 1, 1875. She had three children, one born in 1877, who is not a party to this action; the plaintiff Nixola Greeley Smith Ford was born in 1880, and the plaintiff Ida Greeley Smith in 1882. Their mother, Ida, the daughter of Horace and Mary Y.C. Greeley, died April 11, 1882, after she had arrived at the age of 30 years, leaving her surviving her husband and her said three children.

In April, 1883, Gabrielle, the surviving daughter of Horace and Mary Y.C. Greeley, pursuant to an order of the Supreme Court authorizing her so to do, as provided by chapter 185 of the Laws of 1882, brought an action in the Supreme Court against Nicholas Smith, the surviving husband of Ida Greeley Smith, and his said three infant children in which she demanded judgment:

“That she or some other suitable person be appointed as a trustee to carry out the provisions of said will and testament of said Mary Y.C. Greeley deceased so far as to the same may be devolved upon a trustee to sell the real estate left by said testatrix at her death and to dispose of the proceeds there of pursuant to said will or the law of the case as duly established or for such other, further, or different judgment, decree or relief as to the court may seem fit, just and proper.”

Pursuant to an interlocutory judgment entered in that action a person named therein other than the plaintiff in that action as trustee as therein provided, sold the Chappaqua farm at public auction, and the same was purchased by Gabrielle M. Greeley for $10,000 which amount was paid as provided by the judgment.

At the time of the commencement of said action all of the defendants named therein resided in Shelbyville, Ky. The summons was served upon them by publication pursuant to an order of the Supreme Court. Publication was made pursuant to said order in two newspapers, in one of which it was commenced April 23, 1883, and ended June 4, 1883, and in the other of which it commenced April 27, 1883, and ended June 8, 1883. The defendant Nicholas Smith appeared in the action by counsel and interposed an answer admitting the material allegations contained in the complaint. It is found in this action that:

“On the 8th day of May, 1883, upon the petition of Nicholas Smith the father of said infant defendant sand the consent of George Putnam Smith, Esq., counselor at law, an order was made at a Special Term of the Supreme Court * * * which in contents, form, and purport was an order appointing George Putnam Smith, Esq., guardian ad litem of Horace Greeley Smith, Nixola Gabrielle Smith, and Ida Greeley Smith infant defendants therein and authorizing and directing him to appear and defend said action as such guardian on their behalf. * * * ”

It is also found that:

“That said George Putnam Smith served on the plaintiff's attorney in said action a notice of appearance as guardian and litem for the infant defendants * * * and the usual infants' answer in behalf of said infants alleging that they were strangers to all and singular the matters and things in said complaint mentioned * * * and submitted their interests to the protection of the court.”

The action was tried on June 4, 1883, but the decision therein was not actually made until June 23, 1883, and judgment was entered upon the decision on July 2, 1883. In said judgment George Putnam Smith, the guardian ad litem for the infant defendants, is recited as appearing. After the sale pursuant to said judgment, which took place on the 8th day of September and after the deed...