Boyer v. . East

Gray, J. The plaintiffs contend, first, that the sale to their mother was voidable under the rule in equity which forbids purchases by trustees and, second, that it was void under section 1679 of the Code' of Civil Procedure. Their first contention raises the question of the right of their mother, who was their guardian in socage, to purchase in her own name at the foreclosure sale. Under the statutes of this state, as their father had died intestate, they became vested with an estate in his lands and, being infants, their mother was their guardian in socage. Such guardianship continues, unless superseded by the appointment of a testamentary or other guardian, *585 under the provisions of the statute, until an infant arrives at the age of twenty-one years. (1 R. S. 718, 719, § 57; Byrne v. Van Hoesen, 5 Johns. 66; Emerson v. Spicer, 46 N. Y. 594.) As guardian in socage, there devolved upon her the custody of the infants’ interests in the real estate (1 R. S. 151, § 20), with its consequent responsibilities, and she could not do any act in opposition to their interests. But she had, also, a personal interest in the lands as dowress and, in that respect, was a tenant in common with her children. Upon the foreclosure sale, she could protect that common interest and she committed no breach of any legal duty towards the infants in purchasing and in taking the deed in her own name. She had the right to do so, by reason of her own interest in the property, and, indeed, were she only interested as a guardian in socage, the deed might be to her in her own name. That she was such guardian by force of the statute did not constitute such an official capacity, as would have been the case were the guardianship one by appointment. The only presumptions, therefore, to be entertained, with respect to her purchase at the foreclosure sale, were that she bought to protect her own, or the common interest. She thereby obtained a good legal title, which she could convey to her grantee. As to what she did with the property, or its proceeds, she was accountable to her children; but that was no concern of the grantee. However chargeable in law with knowledge of her legal relationship, he had the right to rely upon her legal right to buy in her own name and upon the presumption that she was acting in her own, or in the common interest, and he was not responsible for the application of the moneys. The sale was regular; the infants’ interests were represented in the action by the guardian ad litem and there was no fraud found. Palmer’s title and that.of his grantees, therefore, are unassailable; unless the second contention of the appellants has any force, that section 1679 of the Code of Civil Procedure prohibited and avoided the purchase by their guardian in socage. That section is entitled: “ Purchases by certain offi *586 cers prohibited.” It provides that “ A commissioner, or other officer, making a sale, as prescribed in this title, or a guardian of an infant party to the action, shall not, * * * purchase, or be interested in the purchase of, any of the property sold,” etc. This section, found in a Code which regulates procedure in civil actions, can have reference, only, as its title indicates, to a purchase by an officer of the court, or by persons who stand in an equivalent relation. The Code had, already, provided that a guardian ad litem, in the case of an infant defendant, should be appointed by the court and this section has reference to such a guardian. In the Bevised Statutes, from which the section is derived, the prohibition was against “ any guardian of any infant party in such suit.” The change in the language to “ a guardian of an infant party to the action,” I think has some significance. It appears to define, as the guardian aimed at, the guardian ad litem required to be appointed, in the course of the proceeding, by the court and includes him in the restriction as to purchasing at a judicial sale, which is imposed upon the commissioner, or other officer, making the sale. The section could not have been intended to effect any change in rules of law, or of equity. The case of O’ Donoghue v. Boies, (159 N. Y. 87), decides nothing adverse to these views. The mother, in that case, was not only the general guardian of the infants, but had been, also, appointed their guardian ad litem in the action of partition. Furthermore, the defendants, there, were the devisees of the real estate in question under the will of their father. Upon a further ground the court should have refused to entertain the action. The defendants had the right to invoke the equitable doctrine that, as the plaintiffs had slept so long upon their rights, they should be deemed to have waived the right to attack the title acquired through their mother’s purchase and conveyance. Whether a court of equity should come to the aid of those who have failed in diligence, will depend upon the circumstances of the case. These plaintiffs were beyond the age when, at common law, guardianship in socage might *587 cease. One was in his fifteenth year and the other in his seventeenth year at the time of the sale. They were, more or less, conversant with what their mother had done ; but upon attaining their majorities, in 1886 and 1888, though she survived until 1890, there was no assertion of any claim by them until in 1896. If they had the election to treat as void the sale to and the conveyance by their mother, it was incumbent upon them to be reasonably diligent and the delay in bringing such an action was, in my opinion, under the circumstances, fatal. I think the judgment should be affirmed, with costs. Bartlett, Martin, Vann, Cullen and Werner, JJ., concur ; Parker, Ch. J., concurs in the result on the last ground stated in the opinion, viz., that a court of equity will not lend its aid to parties who have slept upon their rights for so many years under such circumstances as are disclosed in this record. Judgment affirmed.