Smith v. Reid

• Decision Date: 01 October 1892
• Citation: 134 N.Y. 568,31 N.E. 1082
• Parties: SMITH v. REID.
• Court: New York Court of Appeals Court of Appeals

134 N.Y. 568

31 N.E. 1082

SMITH

v.REID.

Court of Appeals of New York, Second Division.

Oct. 1, 1892.

Appeal from city court of Brooklyn, general term.

Action by John N. Smith against David C. Reid to remove a cloud from the title to land. Defendant had judgment, which was reversed at general term, (11 N. Y. Supp. 739,) and defendant appeals. Affirmed.

Horace Graves, for appellant.

H. C. M. Ingraham, for respondent.

BROWN, J.

The purpose of this action was to have certain deeds under which the defendant claimed to be the owner of an undivided interest in the lands described in the complaint declared to be a cloud upon the plaintiff's title, and to have the same adjudged void and illegal. There is no dispute as to the facts of the case, and, excepting the possession by plaintiff of the property in question, they appear by admissions in the pleadings, or from records introduced in evidence upon the trial by the plaintiff. The defendant makes his title through a deed from Carrie Lowitz, one of the devisees of the land under the last will and testament of her mother, Caroline Taylor. Mrs Taylor's title was derived from her husband, William H. Taylor, who is admitted to have been the owner of the property on November 20, 1874. On that day he conveyed it to one Chauncey M. Felt, who immediately conveyed to Mrs. Taylor. The plaintiff derived his title through a sheriff's deed, executed pursuant to a sale under an execution issued upon a judgment recovered against William H. Taylor by the Nassau Bank, of New York city, on April 9, 1875, and docketed in Kings county on the following day. The plaintiff's contention is, and such was the allegation of the complaint, that said deeds from Taylor to Felt and from Felt to Mrs. Taylor were without consideration, and were made with intent to hinder, delay, and defraud said bank, and were fraudulent and void. The sale by the sheriff was on December 20, 1880, and the execution under which it was made was issued October 9, 1880, pursuant to an order of the supreme court and a decree of the surrogate's court of Kings county; Mr. and Mrs. Taylor, prior to that date, having both died. This action was commenced in January, 1890. The answer put in issue the plaintiff's title, alleged the validity of defendant's title, and pleaded the statute of limitations. From this statement it is apparent that the defendant showed a clear paper title to the share in the land claimed by him, and it was incumbent upon the plaintiff, and essential to his recovery, to establish his allegation that the deeds which conveyed Taylor's title to his wife were fraudulent and void as against the Nassau Bank, through whose judgment he claimed. To establish the fraudulent character of that conveyance, plaintiff put in evidence a judgment roll in an action originally commenced by said bank against Mr. and Mrs. Taylor and Chauncey Felt, to have said deeds set aside. That action was commenced in October, 1875, but before it was brought to trial Mr. and Mrs. Taylor died, and in February, 1878, it was revived against the three children of Mrs. Taylor, who were devisees under their mother's will. At that time, as it appears from the moving papers, Carrie Taylor, the defendant's grantor, who was the eldest child, was about 17 years of age, and all of the children resided in the city of Brooklyn. A judgment was subsequently entered in that action, adjudging said deeds to be void on the ground that they had been executed with intent to defraud the creditors of said William H. Taylor, and that the land therein described was bound by the lien of the judgment recovered against said Taylor by the Nassau Bank, and granting leave to said bank to proceed upon execution theretofore or thereafter to be issued upon the judgment, and sell said land in satisfaction thereof. This judgment was conclusive upon the defendant as to the fraudulent character of the conveyance from Taylor to his wife, providing the court rendering it acquired jurisdiction of the person of the infant defendants therein; and whether or not it did acquire such jurisdiction was the crucial question presented upon the trial upon this branch of the case.

The trial court found that the infant defendants were not served with the summons, but that a guardian ad litem was appointed, and answered for them without service of the summons, and that the judgment rendered therein as against said infants wasvoid. The judgment contained a recital that said infants had been served with the supplementary summons in the action on March 11, 1878, and such recital was prima facie evidence of the truth of that fact; but it was not conclusive, and the defendant was at liberty to show that service of the summons was not in fact made. Potter v. Bank, 28 N. Y. 641;Bosworth v. Vandewalker, 53 N. Y. 597;Ferguson v. Crawford, 70 N. Y. 253. No oral evidence was offered upon the question, but the appellant claims that the finding of the trial court is sustained by the inferences necessarily drawn from the papers comprising the judgment roll, and with this conclusion we agree. The order making said infants parties to the action was granted February 23, 1878. It provided that they be brought in and made party defendants, and appointed Alexander Cameron, Esq., a guardian ad litem for them, unless they should procure the appointment of a guardian within 10 days after the service on them of copies of the order. The order appears to have been served on February 27th, and no guardian was thereafter appointed on the application of the infants. A supplementary summons, dated March 11th, was issued pursuant to section 453, Code Civil Proc., and upon that day was served upon Mr. Cameron, who thereafter answered in behalf of the infants. This evidence permits the inference that the only service was on the guardian. No reason is apparent why the summons should have been served upon him, if prior or subsequent to March 11th it was served upon the infants. It is also apparent that the guardian acted under the appointment contained in the order of February 23d. This negatives the idea of service on the infants after that date, and, as the summons was not issued until March 11th, no service could have been made before it. Jurisdiction over the infant defendants, therefore, if acquired at all, must rest upon the validity of the order of February 23d. Section 473 of the Code of Civil Procedure, to which we are cited by the respondent, provides, in substance, that when an infant defendant resides in this state, and is temporarily absent therefrom, the court may, in its discretion, make an order designating a person to be his guardian ad litem, unless he, or some one in his behalf, procures such a guardian to be appointed within a specified time after service of a copy of the order; and that in such case the summons may be served by delivering a copy to the guardian so appointed, with like effect as when a summons is served without the state upon an adult defendant, pursuant to an order for that purpose. It is claimed that the order of February 23d and the service upon the guardian were a valid service of the summons under this section. Service of process upon the infants was not essential to confer jurisdiction, and, if the order was properly granted and served under the section quoted, service upon the guardian was equivalent to personal service upon the infant. Schell v. Cohen, (Sup.) 7 N. Y. Supp. 858. Notice in some form to an infant is essential to confer jurisdiction upon a court to bind his property. But the legislature may prescribe that it be constructive, instead of actual; and proceedings in conformity with such a statute will be valid, and bind the infant. Ingersoll v. Mangam, 84 N. Y. 622;Croghan v. Livingston, 17 N. Y. 218;Gotendorf v. Goldschmidt, 83 N. Y. 110. Section 473 covers a case in which personal service cannot be made, and which is not within the provisions of the Code relating to service by publication. But the difficulty of upholding the jurisdiction of the court to render the judgment against the infants under the order of February 23d and the service on the guardian is that the moving papers upon which the order was made do not make a case within section 473. That section permits service of the summons to be made upon the guardian ad litem with like effect as if made on the infant, but, unless the court had jurisdiction to appoint the guardian, the service was wholly ineffectual. To authorize the appointment of a guardian ad litem for an infant defendant the moving papers should set forth the facts conferring authority upon the court to make the order. Grant v. Van Schoonhoven, 9 Paige, 255. The petition of the Nassau Bank, upon which the order of February 23, 1878, was made, contains no statement that any of the infant defendants were temporarily absent from the state. It states the age of all of them, and that they were ‘residing at 184 Clinton avenue, in the city of Brooklyn.’ The petition was dated February 13th. Copies of the order granted therein were served personally on all the infants [134 N.Y. 574]at 184 Clinton avenue, on February 27th,-four days after it was granted. There could be no presumption of absence between those dates and existing on February 23d. Moreover, neither the petition nor the order to show cause upon which the motion was made asked for the appointment of a guardian ad litem for Carrie Taylor, or that she be made a defendant in the action. The theory of the plaintiff, as appears from the petition referred to, was that Carrie Taylor was not a necessary party to the action. The petition alleges that James Cleland was her general guardian, but that there was no general guardian for the other two infants. It then prays that Cleland, as the general guardian, be made a defendant, and that a guardian ad litem be appointed for Demetrius Taylor and Henrietta Taylor, the other children of Caroline Taylor, deceased. And there is proof of...