Sears v. Hyer

*487The Chancellor :—There can be no doubt of the right of an adult husband to file a bill in this court for the partition of his wife’s estate, although she is an infant. He has a valid and subsisting interest of his own in the premises, and may therefore join with her in the bill. In the case of Lord Brooke v. Lord and Lady Hertford, (2 Peere Wms. 508,) the sole- complainant was an infant, and yet partition was decreed. The only error in the decree in this cause was in directing the purchase-money of the wife’s share of the property to be paid to her husband before she was of age to consent thereto. It must be corrected so far as to have that share paid into court to be invested for her use, unless the husband gives the assistant register a bond, with two sufficient sureties, in double the amount, to account to her as the court shall direct, when she becomes of age.

The neglect to have one of the answers signed by counsel, &c., was a mere error in practice which cannot affect the validity of the decree.

The decree makes provisions for the payment by the master of the mortgage on the whole premises, out of the purchase-money when received. The petitioner had no right to suppose the money would be misapplied by the master. He purchased with knowledge of this fact on the face of the decree; and if he had any doubts as to the application of the fund, he might have gone with the master to the mortgagee, and have paid the money'himself to that extent, and the master would have deducted it from the amount. This, therefore, can be no reason for his refusal to complete the purchase.

The only objection in which there is any appearance of validity is that which relates to the mortgage to H. Rogers. *By the decision of the Court of Errors in Sebering v. Mersereau, (9 Cowen, 344,) it is settled that a person holding an incumbrance on an undivided share of the premises need not be a party, and that his interest is not affected by the sale; but in that case it was also holden that the pur*488chaser takes the property subject to the incumbrance. In partition cases the rights of the parties should be ascertained as far as practicable before the decree, and the premises should be sold at the risk of the purchaser. That probably was not the case on this sale; and if there were any doubts as to the right, I might be induced to order a new sale. But as the fact that H. Rogers held a mortgage on one of the shares appeared on the face of the decree, it is to be presumed the purchaser was aware of the fact that he had taken that mortgage pendente lite, and that his title would be divested by the sale; or that the petitioner purchased subject to that incumbrance, and paid a price accordingly.

It now distinctly appears that this mortgage was taken pendiente lite, with full knowledge that a suit for partition of the premises had been commenced, and the mortgagee has no different rights from those of the mortgagor. The title of both is completely divested by the sale, and the petitioner will have a perfect title to the whole premises. But for his further protection against useless litigation I shall direct that no part of the purchase-money belonging to the share of Thomas R. Hyer, or his mortgagee, be paid to either of them, or their assigns, until the purchasers under the master’s sale had a valid release from all claims upon the mortgaged premises by virtue of the mortgage to H. Rogers. And none of the parties are to have costs as against each other, upon the petition of Lorrilard and the subsequent proceedings thereon.