Reed v. Reed

• Decision Date: 13 December 1887
• Citation: 14 N.E. 442,107 N.Y. 545
• Parties: REED v. REED et al.
• Court: New York Court of Appeals Court of Appeals

107 N.Y. 545

14 N.E. 442

REED

v.REED et al.

Court of Appeals of New York.

December 13, 1887.

Appeal from general term, supreme court.

David L. Reed, plaintiff, brought this action to procure the sale or partition of certain premises in the city of New York, and a division or distribution of the proceeds among the parties to the action, as their interest might appear. A sale was ordered, and one Bernheimer became purchaser at the price of $10,125. In compliance with the conditions of the sale, he paid to the referee 10 per cent. on the amount bid by him, viz., $1,012.50, and agreed to pay the residue on June 11, 1887. At that time, however, he refused to pay the balance of his bid, alleging that the title was defective for the following, among other, reasons: First. That the plaintiff had no such interest in the real estate as would entitle him to maintain the action. Second. That he was ‘prohibited by the provisions of section 1538 of the Code of Civil Procedure from being a plaintiff in the action;’ that some of the defendants ‘at the time of bringing the action were infants, and the judgment and sale not binding upon them.’ He claimed that for these and other reasons, not important, the title to the premises was a doubtful and unmarketable one. The sale was reported to the court and duly confirmed. Bernheimer moved at special term to be relieved from his purchase, and the plaintiff moved at special term that Bernheimer be compelled to complete his purchase. Bernheimer's motion was denied, the plaintiff's motion was granted, and upon appeal by the purchaser to the general term both orders were affirmed. He now appeals to this court.

E. D. Betters, for appellant.

Bailey & Sullivan, for appellees.

DANFORTH, J., ( after stating the facts as above.)

It appears by the report of the referee that the plaintiff's interest in the premises was that of tenant by the curtesy, and that, 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 21 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...