Hopkins v. Frey. the court could, in its judgment, provide for the executions. It is apparent that there is no property which can be levied upon to satisfy these judgments. All the judgment debtors' property has been assigned, and the assignee has been found to be entitled to the assigned estate by a sheriff's jury. The plaintiffs have refused to indemnify the sheriff; without such indemnity he does not claim that he would apply this property to the satisfaction of these executions. There can be no advantage to the sheriff in holding these executions An execution is the process of the court, issued to enforce its judgment, and is clearly within the control of the court, and the sheriff having failed to answer the allegation before referred to, and it appearing that there can be no advantage to him to hold the executions, it would appear that the protection of the plaintiffs in this action requires that the executions should be returned. The application should, therefore, be granted. HOPKINS et al., RESPONDENTS, v. FREY, IMPLEADED, ETC., APPELLANT. SUPREME COURT, FIRST DEPARTMENT, GENERAL TERM; MAY, 1892. SS 468 et seq., 481. Guardian ad litem of infant defendants-failure of to serve answer in action of foreclosure does not invalidate judgment—when quitclaim deed not procured by fraud. In an action for the foreclosure of a mortgage upon real property the plaintiff is bound to bring infant defendants owning in part the equity of redemption within the jurisdiction of the court, Hopkins v. Frey. and see that they are duly served with process, and that a guardian ad litem is properly appointed; but his responsibility there ends, and he is not bound to see that such guardian ad litem does his full duty to the infant defendants, according to the rules of practice, and the judgment recovered by him in the action is not invalidated by the failure of the guardian ad litem of such infant defendants to file a formal answer, that being the only answer he could file, the infant having no defense to the action. The neglect of the guardian to interpose such answer is a mere irregularity which the court will cure by permitting the answer to be filed at any time nunc pro tunc. A referee to sell real property under a judgment in foreclosure is not required to take an oath after his appointment or to give a bond or qualify in any other formal manner, and in an action to set aside such judgment and the sale thereunder, an allegation that he has not taken an oath is immaterial. In an action in which, among other things, the plaintiff seeks to have a judgment foreclosing a mortgage declared void, allegations in the complaint that the court never acquired jurisdiction of the plaintiffs and that the judgment is void are either characterizations or conclusions and not averments of material fact. Instance of a case in which it was held that a quitclaim deed, executed by the owners of the equity of redemption of mortgaged premises to cure a possible defeat in the foreclosure, was not obtained by any fraud or false representations. (Decided May 13, 1892.) Appeal by the defendant from an interlocutory judgment of the New York county special term overruling a demurrer interposed by her to the plaintiff's complaint. The facts appear in the opinion. A. R. Dyett (Townsend, Dyett & Einstein, attorneys), for defendant, appellant. I. Newton Williams, for plaintiffs, respondent. BARRETT, J.-The demurrer brings up the single question whether the complainant states facts sufficient to constitute a cause of action. Stripped of verbiage, the complaint sets forth that in the year 1875 the execuVOL. XXII.-26. Hopkins v. Frey. tors of one Landgrebe commenced an action in this court for the foreclosure of a second mortgage upon certain property in which the plaintiff, John Everett Hopkins, and his brother Frank Hopkins (since deceased) were interested. John Everett and Frank Hopkins were in fact the heirs-at-law of the mortgagor, Sarah E. Hopkins, who died in the year 1874. The present plaintiff, John Hopkins, was her husband. These heirs-at-law were minors when the mortgage was foreclosed, and the court appointed a guardian ad litem for them. The plaintiff there proceeded to judgment, and in October of the same year the property was sold by a referee to Mr. Christopher Fine. In November, 1875, Fine sold the property to the defendant Sanguinetti, who, in the year 1884, conveyed a part of it "by way of gift or sale" to the appellant Frey. It is alleged that the guardian ad litem for John Everett and Frank Hopkins did not appear, answer or demur in the foreclosure suit, and that he failed to perform the acts and duties required of him by the statutes and rules of court then in force. This is the only material fact which is alleged as against the foreclosure judgment. All else is either characterization or conclusion, e.g., that the court never acquired jurisdiction as to the minors, and that the judgment was void, etc. The statement that the referee never qualified or took on oath is immaterial, as no oath was called for after his appointment, nor was he required to give a bond or to qualify in any other formal manner. The court acquired jurisdiction by the service of the summons upon the infants, as provided by law, and after such service was completed by the appointment of a guardian ad litem. Such is the practice now, and such was the practice in 1875, under the old Code (Code of Procedure, § 134, subdv. 2; Id. § 116, subdv. 2). The plaintiff in the foreclosure suit was bound to bring the infants within the jurisdiction of the court, to see to it that they were duly served with process, and that a Hopkins v. Frey. guardian ad litem was properly appointed. There, however, his responsibility ended. He was not bound to see to it that the guardian thus appointed did his full duty to the infants according to the rules of practice. If the guardian failed in these particulars, he was liable to his ward, but the judgment of foreclosure was not invalidated by such negligence to which the plaintiff was not privy and which he could not control. There is no averment in the present complaint that the infants were not duly served with the summons as required by law, nor that they had any defense to the action, nor that the judgment of foreclosure could, even with entire diligence, have been avoided. Consequently, it must be assumed that the infants were duly served and that they had no defense. Thus we have simply the naked fact that the guardian. failed to interpose the only answer which he could have interposed, namely, the formal one which submits the rights of the infants to the court. It is upon this slight ground that the plaintiffs now, after the lapse of sixteen years, seek a decree which will enable them to question this foreclosure judgment. The neglect of the guardian to interpose a formal answer, as required by the practice, was a mere irregularity which the court would have cured by permitting such an answer to be filed at any time nunc pro tunc (Althause v. Radde, 3 Bosw. 410; and see Croghan v. Livingston, 17 N. Y. 218, and Crouter v. Crouter, 44 St. Rep. 315). The case made by the complaint is, however, weaker than if it were a direct attack upon the foreclosure judg ment. It is further alleged that in May, 1883, and after John Everett and Frank Hopkins became of age, the defendant Sanguinetti secured from them a quitclaim deed of this same property in consideration of a trifling sum of money, and it is this quitclaim, not the foreclosure judgment, which is here sought to be set aside. The plaintiffs charge that the quitclaim was obtained from Hopkins v. Frey. them by fraud, in that Sanguinetti represented that they had no interest in the property; that their rights had been cut off by the foreclosure in 1875; that she, Sanguinetti, was about to sell the property; that it was necessary to correct some clerical error in the foreclosure proceedings which the court would do without the signatures of John Everett and Frank Hopkins, but that this would take a little time and that she would pay $100 to avoid the delay and to secure the same end by their release. They agreed to this, took the money and signed the quitclaim. This is characterized as a fraud, and the representations are alleged to have been untrue. But the fact is quite the reverse. Every word Sanguinetti uttered was true, and if the plaintiffs had taken the trouble to look at the record they would have seen that what she said was quite accurate. Her facts were true even if she erred in her legal conclusions. The plaintiffs now say that they did not discover the falsity of her representations until 1891, but they do not tell us why they failed to make this easy discovery (that is, easy, if the representations were untrue) for upwards of eight years. The record, which was the basis of the whole story, was in existence when Sanguinetti spoke, and it has been in existence ever since. The record, so far as appears from any averment in this complaint, really disclosed the truth of Sanguinetti's statement, but were it otherwise, the Hopkins brothers were no longer minors when they were asked to sign the releases. They were then men of full age, and had the same opportunity as Sanguinetti to determine whether the judgment of foreclosure was valid or invalid. It is clear, therefore, that no fraud, as matter of fact, and as distinguished from adjectives and idle invective, is charged with regard to either the foreclosure proceedings or the release. None upon Sanguinetti's part. None upon her transferees', who became transferees in reliance upon the recorded quitclaim. As to |