The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1855-12-16
Superior Court-specIaI Term.

Before Hon. Judge Hoffman.
IMPORTANT DECISION IN PARTITION SUIT UNDER
THE CODE.
DEo lO-Anne Jennings against Mary Anne Jennings
and Oh~s-Mr. Rodman for plaintiff Mr.. Powers for
infant Defendants Mr.. isvton for Hammer the pur.
ehaserTbs involves several oues ions "A To the
mode of proceeding IN partition suit under the Code
and is Of much practical Importance to the profession
John g. Fammer became the purchaser OF the premise
in question at sale made under judgment in part
ton and objects to taking the property account
various defects In the title profered to be made:
l. The objection that the property sold by mar
which described it as some fosr Ave feet of front
about six inches OF depth than IL proved be-
well taken but 1t s capable OF being removed by re-
duction Of price, That Is not sufficient ground to OK
empt the purchaser from performing his contract.
q As the materials for making up perfect judgmen,
and judgment roll admitted exist the power the
Court to ecty omissions and to perect
is not contested and this difficulty be obvated.
g. The next objection, which relates to Elizabeth Jen-
nings probably does not exist in point of fact The
port that she is Of full age of course capa
Of releasing her share The purch may further
evidence adduced Of the fact, II he desire It.
A. The other objection which concerns the situation o.
the infant defendants, is OF serious nature. It is in
sisted that the proceedings to them void that they
cannot be bound by the judgment and that the Cour,
cannot redress the irreguhnty
The ~sion Is for the partition of the property of the
ate Joseph Jennings among his heirs at law and
commenced in February 1853, by summons and com
rider was made appointing George W. Cook guardian
te for the four infant Defendants who each enti
tied to onesxh part Of the premises This order
general recitng the petition Of the mother and appoint
ing him the guardian Of such infants, viz: Josephine
Frances Maria Emma Fayee AMI Josephus Jennings In
the defence Of suit according to the statute such
provided. 1t contained direc zion to the giving
fling of bond.
After report OF referee to the title and other par
ticulars, Judgment in partition made the 19th
day OF December 1854. Under this sale took place on
the 18th of March, 1855 at which Nammet became thu
purchaser The referee made his report of the sale,
which confirmed by order or Court dated the 4h
Of April, 1866.
On the 4th Of May, 1865, an application was made 70
the Court for order to allow bond Of the guardian to
be fled affidavit Of il having been neglected from
the position that it was An order
made dated the day giving leave to he guardian
parton-that II be approved and filed with the clerk,
nanc pro tune Of the time of making the appointment,
viz the 18Th Of May, 1885, that when fled the APP
pointment OF such guardian be Of the like validity and
effect if the had been filed at the time of making
such appointment
Accordingly, bond in proper form executed and
approves and fled the said 4th Of May 1853 II ii
contended that this order was Intellectual and void.
The s first considered as the provisions of the
Revised utes TO those bonds exclusively governed
the question The 44sth section Of the Code those
provisions appica acting under the Code 50 FAR az
they relate to the substance and subject matter without
regard To the form Of the action The section is herein
after quoted and observed upon
The provisions OF the Revised Statutes referred to
contained in the 3D. Sd and 4tb sections Of the title Of the
Partition Of ianas" They provide for the appoi of
period Of notice. and other particularly and the third
ton declares that the guardian appointed and who
shall give bond hereafter a ected shall represent the
minors in the proceedings and their acts shall be binding
such mnorso
By the 4th section every guardian appointed sha
before entering upon the duties his station execute
bond in such penalty the court shall direct condi-
toned for the faithful discharge Of his rust and before
any rule to plead other subseqrent rule order
shall be made the shall be satisfied that such bond
has been executed and fled in the office Of its clerk
Language cannot se more explicit to show that the
until be had given the bond required II is difficult to
avoid the conclusion tina. the judgment imperative
il the infants had not been made parties at all The
decision Of Chancellor Walworh to appeal bond to
the Court Of Appeals being incapable Of amendment
of being replaced by valid bond may be referred to
Rogers no vs. ass
vs.. Howell lid 459, and Mclean ChArnier Paige
536) So in Barclay Brown Paige, 246 1t was held
that relief could be given where the party had omitted
to appeal from final decree within the time prescribed
by statute.
The provisions Of the Revised Statutes q R. s., $780,
sec 33 will not aid the They apply to bonds
rying in form only from those prescribed by statute
to bonds defective in particulars and which may
Nor think that there any authority upon the sub
ect Of orders being entered proceedings had
sanction the direction to file bond in this Such
orders believe have only been made where the act had
been substantially done at the time, and proven in some
MODE although informal and detective. Thus decree
order resting only minutes has been ordered to be
tered of the proper day lost win be ordered
beies bur ned new one was directed from writ Of exc
cuop. (Scath Cotton Seton DEGREES, $685. Hands
Practice $50; Anon Ath., 521; lawrence vs.. Richmond
JAG. and Walk al; sisson Brewer. Dick, $40;
Goddard vs. Earl Of Suffolk. Ibid Barclay vs.. Brown,
The bond is also Objectionable from not being executed
by the quart ian himself II is given by two persons for
him. The fourth section Of the statute clearly requires
execution by the guardian. Perhaps this detect could
be remeded under the sections before referred to. (2R
s., s56, secs. 33 and "a
My conclusion therefore, is that IL the case rests upon
the provisions Of the Revised Statutes the objection is
fatal one.
It is then insisted that the question is to be gov.
ened by the Code and that the 10th section regulates
the appointment guarc nd in partition
ALSO and that bend is requisite. The 420th section
and the Bath rule Of the supreme Court all the prov
stems which govern the subject bond or security Is
any money or property Of the infant
The 44Sth section of the Code must determine this
provision in the Code Of 184S. 1t was inserted
In ,he amendments of is49. II had been de-
for petition could be taken BY summons and COM
plant under the Code Of the Judges thought 1t
The only s mode q proceeding sS a s BaS
il held that the proceeding by petition under
the statu not abolished drawer VS.. Traver
Ho ward, 1851; Myers vs. Roebask Howard SO, Row
Roe, ibid 1851 And the weight Of authority clearly
that either mode Of proceeding might be adopted.
The amendments q 1s49 relating TO this matter were
until the Legislature should otherwise provide, the act
should not Affect proceedings provided for BY the
3d. an 5h 9th and sth titles Of chapter OF the third
part Of the Revised Statutes except, &c Now the third
title related to suits in partition The amendment Of 1s49
(section AID omitted the I'd, I'd, 4th and 9th and only
retained the 9th and Sth titles in this provision The
44sth section passed exists, we'll the
449th 45lst and 456th sections which may bear some
what on he present case
The 44Sth section Is foiowshe provisions Of the
Revised Statutes relating to the partition OF lands held
by joint tenants tenants In common shall
apply actions for such partition brought under this
Act far the be applied to the substance
and subject matter Of the action without regard to it,
FORM"
The phrase "without regard to its FORM" applies Of
the form Of the action and Interpretation
OF the section then occurs, viz that the provisions OF
the Revised Statutes which do not relate TO the form OF
the action shall govern the proceedings in partition
Could then point out with precision what parts OF the
Code relate the torn Of the action should have
safeguard in the practice. The Code uses the
phrase In title one Of part two which entitled of the
Form Of Civil Acsicns The sixty ninth section abosher
the 6stL con between At law and Is in equ
IT, and the forms Of all such actions and suits and de-
cares there shall be In this State but form Of action
for the protection and Of private rights and
the redress ofprvae wrongs which shall be denominated
.svtl~