#### Laura A. Prior, by her guardian *ad*litem, Appl’t, *v.*Thomas E. Prior, Appl’t, and Jacob Hall, Resp’t.

*(Supreme Court, General Term, Fifth Department,*

*Filed October,*1886.)

1. Partition — Sale — Inadequacy of purchase money.

A sale in partition will not ordinarily be set aside on the ground of mere inadequacy of the sum produced by the sale.

2. Same — Code Civ. Pro., § 1533.

In an action for partition of real'property, one of the defendants was a life tenant of the property and the plaintiff and the other defendant had a remainder. *Held,*that this case was within the provisions of Code Civ. Pro., § 1533, and that the property could not be sold in partition.

3. Same — Effect of consent.

If all the parties were *sui juris,*there might be no difficulty in supporting a sale against the prohibition in Code Civ. Pro., § 1533, because all objection to the sale would be overcome by their consent, and the distribution of the proceeds. The infancy of any of the parties however presents an obstacle.

4. Same — Equities of third parties.

Where such a sale had been made and the property bought and improved by persons not parties to the action, a motion being made to set aside the sale, it was *held,*that although the court might on motion exercise equitable powers, and adjust the equities of parties, opportunity should be given to these persons to be heard.

Appeal from order of Erie county court denying motion to set aside a judicial sale of real property made pursuant to judgment in partition.

The defendant, Jacob V. Hall, was a life tenant of the premises, and the plaintiff and the other defendant had the remainder of the estate in the land. This action was partition. The premises were sold. The life, tenant was paid from the proceeds the estimated value of his estate, and the residue was paid into ' court for the other parties, who were infants. This sale was made December 10, 1881.

And the proceedings for the motion were taken in February, and the motion heard in April, 1886, in behalf of the infant parties. ■ The motion was denied. And Laura A. and Thomas E. Prior appeal.

Roberts, *Alexander*& Plesser, for appl’ts; *O. O. Cottle,*for resp’t,

Bradley, J.

The question of adequacy of the purchase money paid for the property on the sale was a disputed one of fact.

It appears that the sale took place more than five years before the motion was made to set it aside, and that in the meantime *250the rights of third parties who purchased a portion of the property have intervened. Ordinarily, in such case, a sale will not be set aside on the ground of mere inadequacy of the sum produced by the sale. The leading contention on the part of the appellants is, that the direction to sell and the sale were ineffectual because not permitted by any statute, but that on the contrary the sale was within the inhibition of the statute which provides that “ where two or more persons hold as joint tenants, or as tenants in common, a vested remainder or reversion, any one of them may maintain an action for a partition, of the real property to which it attaches according to their respective shares therein, subject to the interest of the person holding the particular estate therein. But in such an action the property cannot be sold; and if it appears in any stage thereof, that partition cannot be made without great prejudice to the owners, the complaint must be dismissed. Code Civ. Pro. § 1533.

The relation of the parties to the land comes within the provisions of this section. And unless the direction to sell, and the sale are in some manner relieved from the operation and effect of the statute, there may be some difficulty in sustaining them in a direct proceeding for relief against the sale. ' The direction to sell, and the sale are not void, because the court had jurisdiction of the subject-matter of the action and of the parties to it. *Cromwell*v. Hull, 97 N.Y., 209. — It is a well settled proposition that a party having an estate in remainder cannot in such an action compel a present partition and sale of land against the consent of a life tenant. *Sullivan*v. *Sullivan,*66 N. Y., 37 , *Hughes*v. *Hughes,*63 How., 408.

And the purpose of this statute evidently was to distinctly declare the rule that a sale in such case should not be made, and therefore directed that when partition could not be made as between those having an estate in remainder or reversion, the action should proceed no farther. In this case the sale of the entire estate in the land was directed and made. And the life tenant does not object, but consents to tahe the amount' ascertained by means of the recognized rules for the computation of the value of such estates, and takes the sum so set apart for him. ' And if all the parties were then *sui juris,*there might be no difficulty in supporting the. sale so far as this question is concerned, because they could by consent overcome all objection to the sale and distribution of its proceeds. The infancy of the appellants, however, presents a question which may lead to a different conclusion. *Scheu*v. *Lehning, 31*Hun, 183.

But without further considering this question, or now expressing any opinion upon it, we think the case cannot intelligently be disposed of upon the proofs before us. Within the long time intervening between the sale and this motion, the affidavits tend to show that portions of the premises have been *251sold by tbe purchaser at tbe sale to persons who have purchased in good faith; that in like manner taxes have been paid and improvements made on the lands. The persons who have made such purchases are not parties here. It cannot now be said that they have no equities. At all events they should have an opportunity to be heard. While the court may on motion exercise equitable powers, and adjust the equities of parties, and may direct that the necessary parties be brought in for that purpose; this is not a proper case to be disposed of on affidavits, as it is evident the facts would not be undisputed. The suggestion of the court below in that respect is approved.

But there is another difficulty in the way of considering here the decision of the motion by the county court. That court was called upon to exercise its discretion. This court cannot review the discretion of-that court. *Reilly*v. *D. and H. C. Co.;*5 Eastern Reporter, 706.

The order should be affirmed.

Smith, P. J.; Barker and Haight, J.J., concur.