Clark v. Clark

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.