Harrison v. Higgins

• Decision Date: 11 July 1916
• Citation: 113 N.E. 551,218 N.Y. 556
• Parties: HARRISON v. HIGGINS et al.
• Court: New York Court of Appeals Court of Appeals

218 N.Y. 556

113 N.E. 551

HARRISON

v.HIGGINS et al.

Court of Appeals of New York.

July 11, 1916.

Appeal from Supreme Court, Appellate Division, Second Department.

Partition by Catharine Augusta Harrison against Elizabeth Higgins and others. From an order of the Appellate Division (158 N. Y. Supp. 1117), affirming order of the Special Term requiring him to complete his purchase, Philip Stark, purchaser at the partition sale, appeals. Reversed and remitted.

Nathan Friedman, of New York City, for appellant.

Joseph A. Kennedy, of Brooklyn, for respondent.

CARDOZO, J.

The appellant was a bidder at a sale in partition. He insists that the title is invalid. Two of his objections deserve consideration.

[1] 1. A predecessor in title, Charles Fahr, died in 1905, leaving a wife adjudged to be insane. He owned two lots of land, the lot sold under this judgment of partition and another. Subject to the dower right of the incompetent, the former parcel came into the ownership of one C. Augusta Cassidy, and the latter into the ownership of Eva D. Van Syckel. The committee for the incompetent submitted to the court a petition for leave to sell the dower right in both parcels; the petition was granted, the payment made, and the dower right released. The objection now is that the petition is defective, because it fails to state the particulars and value of the real and personal property, and the amount of the income of the incompetent person, the disposition made of her personal property, and an account of the debts or demands, if any, existing against her estate. Code Civ. Proc. § 2350. Those particulars are not required, however, where ‘the application is made for the sale of an undivided interest of the infant or incompetent person in one or more parcels of land in order to avoid an action of partition on the part of his cotenants, or for the dower of a widow therein.’ Code Civ. Proc. § 2350. The committee's application falls within those exceptions. His petition alleged, and the referee found, that Mrs. Van Syckel was ‘threatening a partition of the premises and the setting aside of the widow's right of dower therein.’

[2][3] The argument is that, whatever the threat of partition may have been, the state of the title was such that partition would not lie. It would not lie, we are told, between Mrs. Van Syckel and Mrs. Cassidy, because their lots were held in severalty, and it would not lie between Mrs. Van Syckel and the incompetent, because a widow, whose right of dower is unassigned, is not a tenant in common with the owners of the land, and may not, therefore, be made a sole defendant in an action of partition. Code Civ. Proc. § 1538; Wood v. Clute, 1 Sandf. Ch. 199;Purdy v. Purdy, 18 App. Div. 310,46 N. Y. Supp. 215;Mut. L. I. Co. v. Shipman, 119 N. Y. 324, 330,24 N. E. 177. But those were questions to be considered in the proceeding for leave to sell. Where partition is brought by one not a tenant in common, the defect is not jurisdictional, and a decree of sale is not void. It was so held in Cromwell v. Hull, 97 N. Y. 209, where a tenant for life brought partition against remaindermen. The threat of partition, therefore, was not wholly idle. There was at least jurisdiction to make the threatened decree; and even if defenses were available, they involved the expense and chances of a lawsuit. The court that ordered the sale may have exaggerated the menace; but, if there was error, it was not one of jurisdiction. The purpose of the sale was to avoid an action of partition; and this is true, though the action might have been successfully resisted. Enough was shown in the petition to answer the statutory requirements; and, when that is done, the adequacy or inadequacy of the reasons for the sale must be determined by the court that hears the application. Whether it passed upon the question wisely or unwisely, its order is not void.

[4] There is, however, another answer to the purchaser's objection. Even if the threat of partition had not been made, there remained the danger of an action to set aside or admeasure dower. The exception...