John E. Howell, Respondent v. Edwin Mills et al., Appellants

John E. Howell, Respondent v. Edwin Mills et al., Appellants. (Argued March 23, 1874; decided March 31, 1874.) The Supreme Court has jurisdiction of all actions for partition, and while the proceedings are regulated by statute, it is for the court to determine whether the statute has been complied with, and to decide whether the case is a proper one to allow partition or sale; if it errs the error can only be reviewed by exceptions properly taken. One having a vested remainder (subject to a life estate) in an undivided half of certain premises, brought an action for partition. All the parties interested were made parties. The case was tried at Special Term and judgment rendered directing a sale of the premises. Mo findings of law or fact were made and no exceptions appeared in the case, save exceptions filed after the judgment, to the “judgment” and “decree.” Held, that the exceptions presented no question for review, and the only question which could be considered was as to the jurisdiction of the Supreme Court to entertain the proceedings; that the court had jurisdiction of the parties and subject-matter, and whether it erred or not in determining that the case was a proper one for partition or sale, could not be here considered. Appeal from judgment of the General Term of the Supreme Court, in the second judicial department, affirming a judgment of the court, Special Term. (Reported below, 7 Lans., 193.) This was an action for partition. The complaint alleged, in substance, that William Hurtin died on the 4th day of ¡November, 1858, seized of the premises in question, having previously made his last will and testament, dated June 21, 1854, which was admitted to probate by the surrogate of Orange county, ¡NT. Y., June 8, 1859, as a will of real and personal estate. The premises in question were devised by William Hurtin, as follows: “And first I give and bequeath to my son, Alfred D. Hurtin, the farm on which I now live, during his natural life, and also the piece or parcel of land which I took from William D. Hurtin’s farm, adjoining the Widow Hill, as above mentioned; at his death, I give and bequeath to his two sons, George Walter Hurtin and William Mills Hurtin, for them and their heirs forever, and the piece of ground adjoining the Widow Hill, as above mentioned; but if one dies without leaving any child or children the surviving brother to have the whole of all the land above mentioned, for himself and his heirs forever.” Upon the death of William Hnrtin, his son, Alfred D., went into possession under said will. The defendant Edwin Mills is purchaser of the life estate of A. D. Hnrtin. The defendant William Mills Hnrtin, one of the devisees, is an infant. He appeared by George W-. Greene, his guardian, ad litem. Judgment directing the sale was rendered at a Special Term January 2*8,1867. Ho exceptions appear in the case, save “ to the judgment and decree.” Exceptions filed May 13,1872. The action was brought by George W. Hnrtin, one of the devisees above named. An appeal was taken from the judgment to the General Term of said court; pending the appeal, and before argument, an order was made by said court at Special Term substituting the present plaintiff, on his own motion, in the place and stead of George W. Hurtin, upon the ground that Howell had succeeded to said G. W. Hurtin’s interest in the subject-matter of the action. Amasa J. Parker for the appellants. To entitle a person to bring an action of partition he must hold, and be in possession as a joint-tenant or a tenant in. common. (Litt., §§ 288, 292; 2 Bl. Com., 191-194, 190, 200; 2 R. S., 326, § 1; 1 R. L., 507; Clapp v. Bromagham, 9 Cow., 567; Brownell r. Brownell, 19 Wend., 367; Burhans v. Burhans, 2 Barb. Ch., 304; Fleet v. Dorland, 11 How. Pr., 489 ; Florence v. Hopkins, 46 N. Y., 182.) Plaintiff could not maintain such an action. (Blakely v. Calder, 15 N. Y., 617.) His estate in the premises is future and contingent. (2 R. S., 723, §§ 4, 13; 5 Den., 35; 2 id., 336; Campbell v. Rowden, 18 N. Y., 412, 420; Woodruff v. Cook, 47 Barb., 304; Moore v. Littel, 41 N. Y., 66, 79, 80; 2 Blk. Com., 173, marg.) Samuel Hand for the respondent. Defendant Mills not having answered or appeared, and the infant defendant not having put in issue any of the material allegations of the complaint, they will not be allowed to review this judgment on appeal. (Henry v. Cuyler, 17 J. R., 469; Colder v. Knickerbocker, 2 Cow., 31; Campbell v. Stokes, 2 Wend., 137; Wood v. Young, 5 id., 620; Kane v. Whitlock, 8 id., 219; Van Wormer v. Mayor of Albany, 18 id., 169; Dorr v. Birge, 8 Barb., 351; Adams v. 20 J. R., 282; Jones v. Kip, N. Y. Leg. Ob., 91; 1 Code R., 119; 3 Kern., 343, 344; Pope v. Dinsmore, 8 Abb. Pr., 429 and note; O' Dougherty v. Aldrich, 5 Den., 385.) Defendants having failed to object when the referee’s report came in that the proof did not establish plaintiff’s title, the court will not entertain that objection now. (Goulard v. Castillon, 12 Barb., 126; Ehlen v. Rut. F. Ins. Co., 6 Abb. Pr., 68; 2 Bosw., 282.) The appeal only brings under review such tilings on the trial as are duly excepted to. (Keyes v. Devlin, 3 E. D. S.) No point can be raised in the appellate court not raised and argued in the court below. (Gelson v. Hoyt, 13 J. R., 561; Coon v. Syr. and U. R. R. Co., 5 N. Y., 492; Dorr v. Birge, 8 Barb., 351; 5 How. Pr., 323; Ingraham v. Baldwin, 12 Barb., 9; Hunt v. Hoboken L. Co., 1 Hilt., 161; Meakings v. Cromwell, 5 N. Y., 136; Tucker v. Tucker, 1 id., 408; 12 J. R., 493; 17 id., 469; 2 Cow., 31; 2 Wend., 146 ; 4 id., 179; 5 id., 620; Post v. Ketcham, 1 N. Y. Leg. Ob., 261; Clarke v. Sawyer, 2 N. Y., 498; Bidwell v. Astor Mut. Ins. Co., 16 id., 263; Bumsted v. Mut. Ins. Co., 12 id., 81; Church v. Pickett, 19 id., 482; 3 Comst., 511; 5 Barb., 586; Daldwin v. McArthur, 17 id., 414; Bates v. James, 3 Duer, 45; Duffy v. Thompson, 4 E. D. S., 178; 12 Wend., 399.) Plaintiff could bring and maintain his action of partition. (2 Laws 1847, 587 [chap. 430]; 13 How., 476; 15 N. Y., 617; 2 Fearne on Remainders, 66; 17 N. Y., 217; Code of Procedure, § 448 ; 4 Stat. at Large, 614, § 5.) [MAJORITY — Church, Ch. J.] Church, Ch. J. This is an action for partition of real estate. The trial was at Special Term before a single judge. There are no findings of law or fact, and no exception reviewable in this court. The exceptions, filed five years after the judgment, to the “judgment ” and “ decree,” present no question for review. (Code, §§ 267, 268 ; 3 Keyes, 434; 29 K. Y., 616 ; 38 id., 305 ; 13 id., 341.) The only question which can be considered, and this is urged on behalf of the defendants, is that the court had no jurisdiction to entertain these proceedings. This is predicated upon the ground that the petition does not show that the plaintiff was entitled to bring the action, or that the facts stated in the petition brought the case within the statute authorizing the court to entertain an action for partition. The interest of the plaintiff in the premises was a vested remainder (subject to a life estate) in an undivided half, and a contingent remainder in the other half, dependent upon the death of his brother without issue ; and the brother had a like interest. Whether the Supreme Court erred or not, we think the unanimous decision of this court, in Blakeley v. Calder (15 N. Y., 617), is decisive upon the question of jurisdiction. The precise question involved here was involved in that case; and we should hesitate about disturbing the decision, if we doubted its correctness, but it is proper to say that we approve of it. The Supreme Court possesses general jurisdiction in law and equity, and exercised jurisdiction in law prior to the statute. (47 N. Y., 21.) The proceedings, it is true, must be regulated by statute, but it is competent for the court to determine when the statute has been complied with. In this case the court acquired jurisdiction of the parties; and it had jurisdiction of the subject-matter. If it erred, the error could only be reviewed by exceptions properly taken. The original plaintiff instituted the proceedings and procured the judgment, and has not appealed. The defendant Mills, who owned the life interest, suffered judgment by default and cannot appeal, and the infant defendant appeared and answered by a guardian ad Utem, and has taken no exception which can be reviewed. The rights of the infant defendant can be fully protected under the recent decision of this court, ordering a resale of his interest. The judgment must be affirmed, without costs. All concur. Judgment affirmed.