CLARK a. CLARK

CLARK a. CLARK. Supreme Court, First District; At Chambers, June, 1861. Partition.—Infant Parties.—Security by Guardian. It is irregular to institute proceedings in partition on behalf of an infant, without first obtaining the authority of the court. In proceedings in partition, it is erroneous to allow an infant to act by guardian without security. Application by a purchaser at a sale under a decree in partition to be discharged from the purchase. This action was brought by William E. Clark, an infant under fourteen years of age, Thomas Clark, and Letitia Clark, against Martha E. Clark, Louis M. Clark, Victor B. Clark, Eliza Jane Clark, and Stephen P. Russel, public administrator, for the partition of a lot of land, No. 36 Sheriff-street, in the city of New York. The defendants, Louis M. Clark and Victor B. Clark, were infants under the age of fourteen years. A decree was made for the sale of the property, February 1st, 1861. The property was purchased by Carl Pohlman, who now applied to be discharged from his purchase, to have the portion of the purchase-money already paid returned to him, and compensation for his expenses in examining the title,—on the ground, among others, that no guardian for William E. Clark, the infant plaintiff, was appointed before the commencement of the ac- ■ tion, and that there was no proof of service of the summons upon the infant defendants. William Grigg, for the motion, cited Matter of Marsak (15 How. Pr., 383); Lyle a. Smith (13 Ib., 104; 8 Ib., 456 ; 21 Barb., 9 ; 10 How. Pr., 188). Peter Y. Cutler, opposed. I. It is not necessary that the guardian should give security, as he will by the terms of the decree receive no money. (Code, § 420 ; Rule 62.) II. The infant defendants were served with process, but as they appeared and answered by the guardian, no proof of service was required, though it is now supplied. III. Costs and interest, but nothing for searches, are generally allowed to a party who is discharged on his own application. (2 Barb., 535 ; Pleasants a. Roberts, 2 Mol., 507.) [MAJORITY — Ingraham, J.] Ingraham, J. The purchaser under a decree in partition asks to be discharged from the purchase for various irregularities. 1. Because the infant plaintiff did not first obtain from the court authority to institute the proceedings. This was undoubtedly necessary, when the infant was the sole plaintiff; and so far as the rights of the infant were affected, it was equally necessary in this case. The act of 1852, ch. 277, requires such a proceeding, whenever proceedings are instituted on behalf of an infant. Before this statute, an infant could not maintain an action for partition. There is nothing in the act of 1852 which confers any authority now on an infant for such purpose, except it be obtained for him from the court previous to commencing the action. 2. It was also erroneous to allow the infant to act by guardian without security. The Revised Statutes require the guardian for an infant defendant to give security, and the act of 1852 requires a next friend to be appointed, who shall give like security. 3. The purchaser alleges no service on the infant. This would be objectionable, but the plaintiff’s affidavit shows that such service was made. There are other objections, which it is not necessary now to notice. For the reasons first mentioned, the sale must be set aside, and the purchaser released from the purchase. The 10 per cent, paid by purchaser must be refunded, and $100 paid for expenses of purchase and costs,—such amount to be paid out of the proceeds on a resale.