Bowers v. Durant , 6 N.Y. St. Rep. 535 ( 1887 )

Yan Brunt, P. J.:

The whole argument of the appellant is based upon the claim that no partition of the Iowa or Nebraska lands can be bad in the courts of this State; that the courts of this State cannot affect such lands either by an actual partition or otherwise; that there are infants whose rights must be protected, who are not parties to the agreement of the I6th of June, 1885, and are, therefore, not bound by the same.

It seems to be a sufficient answer to these objections to observe that the defendant, Howard M. Durant, the party against whom this injunction runs, was a party to that agreement, and as such party be consented that a partition suit might be brought in the courts of this State for the purpose of partitioning all the real estate of his father, whether the same was situated in the State of New York or elsewhere; that the agreement might be pleaded as conferring jurisdiction, and that be would execute deeds in accordance with any judgment that might be rendered in such action. This be agreed to do for the purpose of obtaining a withdrawal of the plaintiff’s contest to the admission to probate of bis father’s will and codicil. It is true that the agreement contained other provisions which it is not necessary to observe in discussing this question. He having secured, by .means of this agreement, bis ends in procuring the probate of bis father’s will, cannot now be beard to say that because certain other parties are not partiés to this agreement that the provisions therein cannot be carried into effect.

As far as be is concerned, by that agreement he is estopped from denying the jurisdiction of the courts of this State, and the suit contemplated by that agreement having been brought within the time limited, be is precluded by the terms of the agreement from attempting to violate it by bringing actions in other States.

It is entirely unnecessary upon the disposition of this appeal, for us to determine at the present time as to what relief the plaintiff may obtain in this action. It is enough to say that the plaintiff has complied with the conditions to be performed upon her part, contained in the agreemeut, and upon such compliance the defendant has agreed not to commence suits in other States for the partition of any of those lands, and he, having received his part of the consideration for the agreement, must be held to perform the covenants entered into upon his part. The objection that the agreement expressly reserved the right to this defendant to resist such actual partition upon the ground that the same cannot be justly, legally or equitably made, alters in no respect the position of the plaintiff herein, as it is evident that all that was contemplated by that provision of the agreement was that any of the parties had the right to insist upon a sale if actual partition could not be made. The defense is to consist of resistance to actual partition and nothing more.

We are of the opinion, therefore, that the defendant, having made his agreement, should be held to its terms.

Order affirmed, with ten dollars costs and disbursements.

Brady and Daniels, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.