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Jordan agt. Van Epps.

as any question relating to the jurisdiction of the court is concerned.

The complaint in the partition snit avers, that “the defendant Elizabeth Jordan claims an inchoate right of dower in said premises, as never having signed any deed or conveyance of said premises, which were conveyed by her husband Christopher Jordan in 1852, to George W. Jordan, in which conveyance she did not join."

This roll contained, among other things, “proof of service of summons and notice of the object of action on Elizabeth Jordan (plaintiff herein), personally, on April, 1868,” and ayerred that the premises of which partition was sought were subject to the inchoate right of dower of the said Elizabeth Jordan, and that she failed to appear, or to put in any answer to the complaint, and that none of the defendants, except certain infants had appeared or answered, who appeared by guardian ad litem and answered, and the action was referred to a referee, who made a report which was confirmed by the conrt, and a decree was entered thereupon on the 26th of June, 1875. This decree states that Christopher Jordan (the plaintiff in the partition suit) is entitled to one undivided one-tenth part of the premises, and Elizabeth Jordan (the now plaintiff) to an inchoate right of dower in the one undivided one-tenth of said premises, and the decree provides that after the payment of certain sums for costs and debts, the referee “ pay the plaintiff, Christopher Jordan, and Elizabeth Jordan, onetenth thereof."

This, we suppose, refers to the referee who was, by the said decree, directed to make a sale of the said premises under the decree which was entered June 26, 1875. It seems that the first decree was opened or set aside in September, 1875, in order to bring in new parties to the action in place of some who had died pendente lite leaving minor children, and by the order vacating first judgment any or all of the defendants were permitted to serve answer. A supplemental complaint was filed, and certain of the defendants put in answer, and a

Vol. LVIII 44

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Jordan agt. Van Epps.

guardian was appointed for the infant defendants who put in the usual general answer, but Elizabeth Jordan did not appear or answer. The answer of the adults to the supplemental complaint denies none of the allegations of the complaint; a second reference then took place to the same or a new referee who found, among other things, that the said Christopher Jordan, before the commencement of the partition suit, “procured, in due form of law, an absolute decree of divorce, dissolving the marriage contract between the said plaintiff and said Elizabeth Jordan.” The second report of the referee was confirmed March 1, 1876, and says nothing about the right of dower of said Elizabeth.

On the confirmation of the said second report the “ usual decree of partition was made,” which also ordered a sale of the premises, and directs that the referee, on the sale, shall execute a deed, and the purchaser shall be let into possession on production of the said referee's deed.

The counsel for the defendant then put in evidence the deed of the referee on the sale in partition, which purports to convey the whole premises described in the complaint in this action to the defendant. The deed recited the judgment and decree in the partition suit and the order directing the referee to execute the deed. It appeared that, after the sale in partition, Sarah R. Gaskins, one of the defendants in that suit, and Elizabeth Jordan (the now plaintiff) made a motion to set aside the sale in partition, and to order a resale.

This motion was heard at a special term of this court, on the 3d day of August, 1876, and appears to have been founded upon the judgment roll and all the papers in the partition suit, and, also, upon the affidavits of Sarah R. Gaskins and said Elizabeth Jordan, and the pow plaintiff's attorney. What the grounds of the said motion were, it does not precisely appear, but, among other things, it would seem that the plaintiff in this suit still claimed a right of dower in the premises, and asked some kind of relief as to herself, founded on that circumstance; Van Epps, the defendant in this suit, appeared

1

Jordan agt. Van Epps.

by his counsel, and his affidavit was read in opposition to that motion, and the motion to set aside the sale and for a resale was denied, and the referee's report of sale was confirmed.

The plaintiff's counsel, so far as we understand his position in reference to the decree and sale in partition, seems to claim that the plaintiff's right of dower in the premises was not contested or litigated in the partition case, and could not be, and that “a sale in partition does not cut off or affect a widow's dower, unless she consents, or is paid her dower interest as provided by the statute.” We do not understand such to be the law; a brief reference to the statutes relating to the partition of real estate, clearly shows, in our opinion, that a woman whose dower has not been admeasured may be made a party defendant in such an action. It is expressly provided in 2 Revised Statutes (318, p. 412, secs. 5, 6) that she may be made a party to the partition. She may appear and answer on account of her interest, whether“such interest be present and vested or contingent” (Id., sec. 16). We assume that the sale in this case was made upon the report of a referee and without the appointment of any commissioner.

The effect of the sale is declared by the Revised Statutes (2 R. S., p. 377, sec. 62), which provides that the sale shall be a bar, both in law and equity, against all persons interested in such premises in any way, who shall have been named as parties in the said proceedings, and against all other persons claiming from such parties or either of them.

That it was intended that a sale under a judgment in partition should cut off an inchoate right of dower, is apparent from the provisions of chapter 177, of the act of 1840, entitled "An act for the better securing the interests of married women in lands sold under judgments or decree in partition.” Section 1 of that act provides, that in all cases of sales under judgment or decree in partition, where it shall appear that any married woman has an inchoate right of dower in any lands divided or sold, or that any person has any vested or contingent future right or estate in such lands, it shall be the duty

Jordan agt. Van Epps.

of the court under whose judgment or decree such sale is made to ascertain and settle the proportional value of such inchoate, contingent or vested right or estate according to the principles of law applicable to annuities and survivorship and to direct such proportion of the proceeds of the sale to be invested, secured or paid over in such manner as shall be judged best to secure and protect the right and interests of the parties."

From the statement of the judgment roll in partition which appears

in the

case, it seems that the right of the now plaintiff, Elizabeth Jordan, was admitted in the partition suit, and it does not appear upon what ground the decree omitted to provide for an ascertainment of the value of that right, whether by virtue of a release to her husband of such right, or by reason of the fact of such decree of divorce found by the referee. If it proceeded upon the latter ground the omission of the court to provide for the ascertainment of the value of such inchoate right of dower, under the act of 1840, was probably error, in respect to which the said Elizabeth might have had redress by an appeal from the judgment, inasmuch as it does not appear that there was any issue in the case under which the decree of divorce was admissible in evidence, and it is possible, from the statements contained in the bill of exceptions, that this was one of the grounds on which the now plaintiff moved to set aside the sale in the partition suit. But, however this may be in fact the judgment for a sale in the partition suit was not roid, but should, if erroneous, have been corrected on appeal.

A judgment rendered by a court having power, lawfully conferred, to deal with the general subject involved in the action, and having jurisdiction of the parties, although against the facts or without the facts to sustain it, is not void, as rendered without jurisdiction, and cannot be questioned collaterally (Hunt agt. Hunt, 72 N. Y., 217; Jenkins agt. Fahey, 73 N. Y., 355).

A purchaser under a sale in partition is protected against

Mellen agt. Hutchins.

all irregularities in the judgment, or in the proceedings upon which it was founded, which do not affect the jurisdiction of the court over the subject-matter or the parties (Alvord agt. Beach, 5 Abb., 451; Jenkins agt. Fahey, 73 N. Y., 355).

In this case the supreme court had general jurisdiction of the subject-matter, and by its process obtained jurisdiction of the person of the plaintiff, and we think, within the meaning of the statutes before referred to and the cases above cited, the defendant acquired a valid title to the premises by the sale on the judgment in partition and the conveyance to him on such sale.

The judgment of the county court and the order refusing a new trial are affirmed.

MONROE COUNTY COURT.

Mary E. MELLEN, respondent, agt. CHARLES D. HUTCHINS,

appellant.

Costs Non-residents - when required to furnish security for costs.

A non-resident need not furnish security for costs if he begins suit in a

justice court or municipal court, although such security could be compelled if suit was commenced in courts of record, but not when an appeal is taken to the county court.

March, 1880.

APPLICATION by respondent for commission to take testimony, and by appellant for security for costs.

Fanning & Williams, for respondent.

J. E. Roe, for appellant.

MORGAN, Special County Judge. The respondent resides at Worcester, Mass.; the appellant in the city of Rochester,

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