(49 Hun, 502) PRIOR V. PRIOR et al. (Supreme Court, General Term, Fifth Department. October 19, 1888.) PARTITION-Sale-JudgmenT-VACATION-INFANCY. A judgment directing the sale of lands found by the county court not to be susceptible of partition, though improper under Code Civil Proc. N. Y. § 1533, which provides that in such cases, where it appears that a partition cannot be made without great prejudice to the owners, the complaint shall be dismissed, will not be set aside on the motion of infant owners, when the judgment, sale, and confirmation were unexcepted to; the remedy, if any, being against the guardian ad litem in the action for negligence. Appeal from Erie county court. The action was brought in the county court for partition of certain land in the city of Buffalo. Interlocutory judgment was entered November 17, 1881, reciting that partition of the premises could not be made without great prejudice to the parties, as appeared by referee's report; and directed a sale of the land, and division of the proceeds between the parties according to their interests. The sale was made pursuant to the judgment, December 10, 1881, and on January 20, 1882, a final judgment was entered, confirming the sale, directing distribution of the proceeds, etc. The purchase was made by Elizabeth A. Hall, wife of the defendant Jacob V. Hall. The latter had a lifeestate in the land; and the plaintiff, Laura A. Prior, and the defendant Thomas E. Prior, had the estate in remainder. The purchaser afterwards conveyed some of the lands to parties who purchased in good faith. In April, 1886, a motion was made in the county court to set aside the sale, on the ground of inadequacy of price and want of authority to make the sale. From an order denying the motion an appeal was taken, and the order was affirmed on the ground that portions of the premises had been sold to innocent purchasers, and that as to them the sale ought not to be set aside; and on the further ground that the motion was discretionary with the county court, and that its discretion was not reviewable. See 41 Hun, 613. In August, 1887, a motion in behalf of the parties Prior was made to set aside the judgment directing the sale and all subsequent proceedings founded upon it. The motion was granted by the order of the county court, except so far as was essential to support the title of those persons who had taken conveyance from Elizabeth A. Hall, the purchaser before mentioned; and a reference was ordered to take an account, etc. She and the defendant Jacob V. Hall appealed from the order of the county court. Before BARKER, P. J., and HAIGHT, BRADLEY, and DWIGHT, JJ. BRADLEY, J., (after stating the facts.) The action came within the provisions of section 1533 of the Code of Civil Procedure, which then declared that the premises in such case could not be sold, and that when it appeared that partition could not be made without great prejudice to the owners the complaint should be dismissed. The direction of the statute was not observed, but, contrary to it, judgment directing the sale was entered, and pursuant to it sale followed. When the review of an order of the county court denying motion to set aside the sale was here, it was held that the judgment and sale were not void, because the county court had jurisdiction of the subject of the action, and of the parties to it. 41 Hun, 613. The right of the plaintiff, as tenant in common with the defendant Prior, of the estate in remainder, subject to the interest of the life-tenant, was given by the provisions of that section, which did not contemplate that the latter would be a necessary party to the action. The right, however, to make him a party defendant in such case is given by section 1539. Before this statute, according to the weight of authority, such an action could not properly be brought by a party not having the possession, actual or constructive, of the premises sought to be partitioned; and a plaintiff was not permitted to unite as defendants those not seized of a like estate in common with him. Sullivan v. Sullivan, 66 N. Y. 37. But if he did so, and proceeded to final judgment, it was not without jurisdiction of the parties, as well as the subject-matter, and it was effectual as against an attack collaterally. Howell v. Mills, 56 N. Y. 226. And although the statute declares that "no person other than a joint tenant, or a tenant in common, of the property, shall be a plaintiff in the action," (Code Civil Proc. § 1538,) if, as plaintiff, a person having the present estate brings such an action against those having only a vested estate in remainder, and prosecutes it to judgment, it is within the jurisdiction of the court; the judg ment and its execution cannot be questioned collaterally, and it will be deemed conclusive upon the parties. Cromwell v. Hull, 97 N. Y. 209: Reed v. Reed, 107 N. Y. 545, 14 N. E. Rep. 442, affirming 46 Hun, 212. And such is the applicable effect declared by statute upon the confirmation of the sale by final judgment. Code Civil Proc. §§ 1557, 1577. In view of this situation, the question arises whether the county court had power to make the order appealed from; for, if that court possessed such power, the order must be affirmed, as this court will not review the exercise by the county court of its discretion. Reilley v. Canal Co., 102 N. Y. 383, 7 N. E. Rep. 427. One reason urged in support of the motion, and of the power of the court to grant it, is in the fact that the moving parties were infants when the sale of the property was directed by the judgment and made. It appears that Thomas E. Prior was then 15, and Laura A. Prior 8, years of age. They had the vested estate in remainder, limited only upon the life-estate of the defendant Hall. The apparent purpose of the statutory rule, and of the judicial effect given to it, applicable to such cases, was to give unqualified support to the final judgment of confirmation, ( Woodhull v. Little, 102 N. Y. 165, 6 N. E. Rep. 266; Jordan v. Van Epps, 85 N. Y. 427;) and, if the parties had been sui juris, there would seem to be no support for the motion. The sale was by the interlocutory judgment directed, and pursuant to it had, nearly six years before this motion was made, and four years had elapsed before any question, so far as appears, was raised in behalf of those infant parties, with a view to relief, when the motion to set aside the sale was made and denied. As a general rule, in the absence of statutory inhibition, courts have control over their own proceedings, and may deal with them as justice requires, (In re City of Buffalo, 78 N. Y. 362, 370; Dietz v. Farish, 11 Jones & S. 87,) and will usually exercise such power for the protection of the innocent, and of those who have acted in good faith in the matter, (In re Price, 67 N. Y. 231.) The statute has prescribed certain times within which motions may be made for relief on the ground of irregularity or of errors in fact. Code, §§ 1282, 1290, 1291. But this motion does not seem to come within the provisions of those sections. This was neither a case of irregularity, strictly as such, nor of error in fact. When the action in its progress reached the point where it appeared that partition could not be had without great prejudice to the owners, it was the duty of the court to have dismissed the complaint, because the statute so provided and declared that no sale could be made. The action nevertheless proceeded to judgment, directing the prohibited sale. This excessive exercise of judicial power was error which, if not waived, rendered the interlocutory judgment voidable; but may not necessarily have been available on review, because no exception was taken on the coming in of the referee's report, and no objection was made to such judgment, or to the sale or its confirmation. The question, therefore, is whether the final judgment was conclusive upon these minors as against the purchaser. The rights of those infants were in the care of guardians, who failed to do what, it is said, the interests of their wards required of them. Is the court, in which the proceedings were had, powerless, without the aid of fraud for its support, to grant them relief? They were in some sense the wards of the court, and it was by the court that their interests were placed in the care of guardians ad litem. The court has determined that their rights were not fairly taken care of by the means which it provided for that purpose; and therefore sought, so far as it could, to restore to them that of which they were deprived by its proceedings, conducted in violation of the statute, to their prejudice. In Reed v. Reed the question arose upon a motion between the purchaser at the sale and the parties to the partition action for whose benefit the sale was made; and the court held that, inasmuch as it had jurisdiction of the subject-matter and parties, the final confirmation was conclusive upon such parties. In view of the doctrine of that case, the situation, after final judgment, was no different, in effect, than it would have been in case where the proceedings resulting in a sale and confirmation were in no respect contrary to the provisions of the statute. It was there said, on the review in the supreme court, (46 Hun, 212,) that the fact that some of the parties were infants did not, as against them, qualify the conclusive effect declared by the statute of the final judgment; but that, if there was any occasion for it, the remedy in their behalf, for any injury suffered, was against the guardians, and the sureties upon their bonds. In the present case the infant parties seek relief against the judgment and its effect; and the court determined that the purchaser at the sale made pursuant to the judgment has not a standing in relation to the sale which denies to the moving parties the means of relief as against her, and that reasons exist why it should be granted. Whatever our views may have been if the question were res nova, we think the case comes within the doctrine before referred to, declared in Reed v. Reed. There the purchaser was required to complete his purchases because the judgment confirming the sale was conclusive against all the parties to it, although some of them were infants. The principle applied there seems applicable to the question here. Upon the authority of that case the order must be reversed, on the sole ground that the county court had no power to make it. BARKER, P. J., HAIGHT and DWIGHT, JJ., concur. (49 Hun, 489) NOWELL et al. v. GILBERT, Sheriff. (Supreme Court, General Term, Fifth Department. October 19, 1888.) 1. SHERIFFS AND CONSTABLES-WRONGFUL Levy-ESTOPPEL-RECITAL IN BOND. An undertaking given by a sheriff under Code Civil Proc. N. Y. § 1704, to procure the return of property levied on by him, and replevied by a claimant, reciting that certain property specified in claimant's affidavit had been replevied, and that defendant desired its return, concluding in accordance with the statute, does not estop the sheriff, in an action by the claimant against him for the property, from proving that all the goods mentioned in the affidavit were not levied on, replevied, or returned to him. 2. SAME. Such an undertaking, if filed and used by the sheriff to procure the return of the property, though signed only by sureties, and not by him, would have the same effect, as evidence against him, as if signed by him. Appeal from judgment on report of a referee. Action by Samuel J. Nowell and William A. Presby against Frank T. Gilbert, sheriff of Erie county, to recover the possession of certain personal property. Judgment for plaintiffs on the report of a referee, and defendant appeals. Argued before BARKER, P. J., and HAIGHT, DWIGHT, and BRADLEY, JJ. Baker & Schwartz, and B. F. Drake, for appellant, Eugene M. Sanger, for respondents. BRADLEY, J. The plaintiffs were wholesale dealers in woolen goods in the city of New York, and sold to one Moses Ruslander 48 pieces of such goods, which is the property in question. The action is founded upon the charge that the plaintiffs were induced by fraud on his part to sell and deliver such goods to him; and the evidence was sufficient to warrant that conclusion. That question of fact will therefore be deemed disposed of by the finding of the referee. The defendant, on November 18, 1886, by virtue of six executions issued upon judgments entered the day before upon confessions of Ruslander, amounting to about $28,000, levied upon a stock of goods in a store occupied by the latter in the city of Buffalo; and afterwards on the same day, and after the levy, Ruslander made a general assignment for the benefit of his creditors. The plaintiffs claiming that the goods so sold by them were in the stock upon which the defendant had levied the executions, and having demanded of him the possession of them, commenced this action for their recovery on the 23d day of that month. The property taken upon the affidavit and requisition from the stock of goods was, pursuant to proceedings duly taken for that purpose in behalf of the defendant, returned to the latter. The main question, and the most important one requiring consideration, is whether the defendant was, by the undertaking upon which the return of the property was procured, estopped from asserting that he had not had possession of all the property mentioned in such affidavit, and to recover which the action was brought. In the affidavit and in the complaint the property is described as 48 pieces of woolen goods, manufactured into clothing and unmanufactured; and the plaintiffs gave evidence tending to prove, and the referee found, that the property so described was of the value of $2,268.87. The question arose upon exceptions taken to the exclusion of evidence offered by the defendant to prove that, at the time the executions were issued to the defendant, Ruslander had, in due course of his business, sold and disposed of more than three-fourths of the property mentioned in the complaint, and did not then have in his possession or under his control more than one-fourth of it; that the defendant did not at any time have in his possession more than one-fourth of such property; and that the value of such of the property so described, as in any manner came to his possession, did not exceed $500. The evidence was excluded, upon the objection that it was in conflict with the admissions in the undertaking made on the part of the defendant for the return of the replevied property to him; and the referee held that the defendant was at liberty to give evidence of the value of all the property described in the affidavit, but that any evidence tending to show that the defendant had not the possession of all the property so described at the time the requisition was executed by the coroner was not admissible; to which ruling exception was taken. The undertaking was executed by two sureties, and not by the defendant. And in it was the recital that "whereas, the plaintiffs in this action have claimed the delivery to them of certain chattels specified in the affidavit, made in behalf of the plaintiffs for that purpose, of the alleged value of two thousand two hundred and sixty-eight dollars and twenty-seven cents, and have caused the same to be replevied by the coroner of the county of Erie, pursuant to chapter fourteen of the Code of Civil Procedure, but the same has not yet been delivered to the plaintiffs; and whereas, the defendant is desirous of having the said chattels returned to him." It then proceeds to conclusion, as required by statute. Code Civil Proc. § 1704. The fact that the defendant did not sign the undertaking, did not, for aught that appears in the evidence, deny its conclusive effect upon him, as well as upon the sureties who did execute it. It was prepared by his attorney, made in his behalf, and used to produce the restoration to his possession of the property taken by the coroner; and he was estopped by the undertaking from denying his previous possession of the property replevied. Diossy v. Morgan, 74 N. Y. 11; Harrison v. Wilkin, 69 N. Y. 412; Decker v. Judson, 16 N. Y. 439. But, to support the ruling of the referee, the fact must be deemed conclusively established by estoppel that the property replevied embraced all that was mentioned in the affidavit. The recital, although not requisite to the statutory undertaking, was evidently made to explain its occasion and purpose. The estoppel arose from the defeated delivery to the plaintiff founded upon the right, and its exercise, to require the return to the defendant of the property taken by the coroner, for which purpose the undertaking prescribed by the statute was required. This proceeding rests upon the assumption that he previously had the possession of the property of which he had been divested. by the execution of the requisition; and the right to thus obtain the return did not depend upon the replevy of all the property described in the affidavit or complaint, but for the return of such portion of it, if not all, as had been taken from him upon the plaintiffs' requisition. With this in view the statute provides that, for the purpose of obtaining such return, the defendant must serve upon the officer a notice that he requires a return of the chattels replevied. Code Civil Proc. § 1704. It also contemplated by the statute that the officer may replevy less than the whole of the property described in the affi. davit, and he is required to do so when a part only can be found; but, for the purposes of the proceeding for the return of it in such case, the value of the whole, as stated in the affidavit, when there stated in the aggregate only, will be deemed the value of the portion replevied. Id. § 1698. In the present case the undertaking for the return of the property necessarily represented twice the value of the entire property, as stated in the affidavit, without reference to the quantity of it taken by the coroner. The recital in the undertaking may be broad enough to import that all the property in question was taken by him, and may properly have been treated as evidence; but in view of the fact that such recital was not essential to the purpose for which the undertaking was made, and added nothing to its force to produce a return of the property, it is difficult to see that it is conclusive as such, or how it can be effectual as an estoppel. Talcott v. Belding, 4 Jones & S. 84. It is a mere admission, not of record, but in pais; and, to give to it the effect of estoppel, the plaintiffs must by it have been induced to so act, or to refrain from taking action, that the denial of the truth of the recital would in the legal sense prejudice them. Malloney v. Horan, 49 N. Y.111; Blair v. Wait, 69 N. Y. 113; Winegar v. Fowler, 82 N. Y. 315. Such was the case of Dezell v. Odell, 3 Hill, 215, where a party having assumed the relation of receiptor of chattels levied upon, and promised to deliver them to the officer, was held estopped from withholding them upon the assertion of title in himself; because in reliance upon his recognition of the effectual force of the levy, and his promise to deliver the property to the officer, the latter was induced to leave it in his possession. Here the purpose of the defendant was to obtain the return of the property replevied, and that was the only effect produced by the proceeding, aided by the undertaking, to which the recital relied upon by the plaintiffs in no essential manner contributed. The proceeding was wholly statutory, and was a right in the defendant not dependent upon or subject to any control or acquiescence of the plaintiffs. It was by its exercise in the manner provided by the statute, and its result, that the plaintiffs were denied the possession of the property replevied, and its return to the defendant accomplished. It would therefore apparently seem that the plaintiffs were in no different situation in any respect than they must have been if no such recital had been put into the undertaking. But it is said that by this admission, furnished by the recital, the plaintiffs may have been induced not to take any steps to replevy the residue of the goods, assuming that the coroner had not taken all of them, for which the statute makes provision, (Code Civil Proc. § 1713,) or that in reliance upon it the plaintiffs may have omitted to serve upon the defendant notice that for the purposes of the action they abandoned so much of the claim as related to the goods not replevied, (Id. § 1719;) and that, but for the situation so représented, they may have sought to charge the defendant with liability in the action for goods not replevied, (Id. § 1718.) It may be |