LADD V. STEVENSON.

[112 NEW YORK, 325.]

VACATION OF JUDGMENTS-INHERENT POWER OF COURTS TO ORDER, Ir. RESPECTIVE OF LAPSE OF TIME. - Power of the court to vacate judg. ments is not restricted by section 724 of the code, authorizing motions to be made for relief against judgments taken against the moving party, through his "mistake, inadvertence, or excusable neglect." Its power does not depend on any statute, but is inherent. VACATION OF JUDGMENT, WHO MAY MOVE FOR. ONE WHO PURCHASES PROPERTY AFTER NOTICE OF THE ACTION has been filed, and who is therefore bound by any judgment which may be entered therein, bears such a relation to the action that he may, under the code of New York, claim to be made a party during the pendency of the action, and may also move the court for the vacation of any judgment affecting his rights.

ACTION against Willett, begun in May, 1878, to have a cer tain agreement given the effect of a mortgage, and foreclosed as such. Notice of the pendency of the action was filed the same day. In January, 1879, Willett answered. In Febru ary, 1884, the case was tried, Willett, though represented by attorneys, taking no interest in the trial, and instructing his attorneys to let the case go by default. January 15, 1885, judgment was given for plaintiff as prayed for in his complaint. After May, 1878, and before February, 1884, a suit was brought for the partition of the same realty, and a notice of the pendency of this suit was filed June 9, 1879. To this action Willett was a party. It resulted in the sale of the property, pursuant to the judgment therein, and the execution of a deed to V. K. Stevenson, the purchaser. He subsequently conveyed, with full covenants, to Samuel Glover, who, with like covenants, conveyed to one Goelet. On March 28, 1885, the administratrix of Stevenson petitioned the court to be made a party to the action and for the vacation of the judg

On April 4th of the same year, Goelet presented a like petition. The prayer of these petitions was granted. A second trial was had, in which judgment was given for the defendants. Plaintiff thereupon appealed, both from the order setting aside the first judgment, and from the judgment entered after the last trial.

Frederick P. Forster, for the appellant.

E. E. Anderson, for the respondent.

EARL, J. The court had the power, in the exercise of its discretion, to set aside the judgment entered in favor of the

plaintiff after the first trial, and to permit the three defendants, Stevenson and the Goelets, to appear and answer. Mrs. Stevenson, as the administratrix of her husband's estate, was interested to the full amount of plaintiff's claim, for in case he could enforce his judgment against the real estate, she, as administratrix, was liable to the Goelets upon the covenants contained in her husband's deed and the bond of indemnity given by him to the Goelets; and the Goelets were interested in the real estate in consequence of their purchase of the same, and their ownership thereof. Therefore, under section 452 of the code, it was proper that they should be made parties defendant. And notwithstanding section 724 of the code, the court had the power to set aside the judgment and allow them to come in and defend: Dinsmore v. Adams, 5 Hun, 149; Alling v. Fahy, 70 N. Y. 571; Hatch v. Central Nat. Bank, 78 Id. 487; Vanderbilt v. Schreyer, 81 Id. 646; O'Neil v. Hoover, 17 Week. Dig. 354.

In consequence of the filing of the notice of the pendency of this action, the first judgment bound these defendants as if they were parties to the action. Persons thus situated bear such a relation to the action that they could not only claim to be made parties during the pendency of the action, but they can also move the court, and be heard in reference to any judgment rendered therein affecting their rights. The whole power of the court to relieve from judgments taken through "mistake, inadvertence, surprise, or excusable neglect," is not limited by section 724; but in the exercise of its control over its judgments, it may open them upon the application of anyone for sufficient reason, in the furtherance of justice. Its power to do so does not depend upon any statute, but is inherent, and it would be quite unfortunate if it did not possess it to the fullest extent.

The present judgment is right upon the merits. The plaintiff had no written stipulation giving or agreeing to give him a lien upon real estate. If he had any agreement for a lien upon this real estate, it all rested in parol, and there was no part performance, and no ground whatever authorizing the maintenance of the action.

The order and judgment appealed from should therefore be affirmed, with costs.

POWER OF SETTING ASIDE JUDGMENTS on motion is a common-law power of courts of record: Kemp v. Cook, 18 Md. 130; 79 Am. Dec. 681. Courts of

general jurisdiction have the authority to change, correct, revise, and vacate their own judgments at any time during the term at which they were rendered, and before rights have become vested thereunder: Harris v. State, 24 Neb. 803.

TOOLE v. TOOLE.

[112 NEW YORK, 833.]

PURCHASER AT JUDICIAL SALE SHOULD NOT BE COMPELLED TO ACCEPT DOUBTFUL TITLE. Purchaser at partition sale should be released from his bid, if it appears that there were persons, not parties to the suit, who were interested in the property, unless incapacitated to take by reason of alienage. They should have been made parties to the proceeding for partition, and the question of alienage there tried. PURCHASER AT JUDICIAL SALE SHOULD BE RELEASED FROM HIS BID, if the title appears to be doubtful at the time when he becomes entitled to a deed. It is error for the court in such a case, instead of releasing the purchaser, to continue the cause for the purpose of taking testimony repecting the claims of absent parties. His contract should not be converted into one holding him to performance indefinitely, or until such time as the title can be perfected.

SUIT for partition. The property was sold to D. M. Koehler. He moved the special term to release him from his bid, on the ground that certain named persons, who were not parties to the suit, appeared to hold interests in the property as the heirs at law of Mary Ann Hanley. These persons were nonresident aliens. The special term denied the motion. The purchaser then appealed to the general term, which appointed a referee to take proof upon the question of the alienage of the omitted parties, and to report such proof with his opinion to the court. After the referee reported, the sale was confirmed, and the purchaser's motion to be released denied. The purchaser appealed.

Benno Loewy, for the appellant.

Lewis Johnston, for the respondent.

GRAY, J. It is well settled by the decisions that a purchaser at a judicial sale should not be compelled by the courts to accept a doubtful title. Where irregularities or defects exist in the proceedings, which require further or other proceedings in order to cure them, the objection of an intending purchaser, based upon their existence, should not be overruled, and his contract of purchase be directed to be completed. His contract called for a good title, and if it was bad or doubtful, he should, on his application, be relieved from completing

the purchase. In these partition proceedings the absence of parties was shown, who were of the same blood and kinship with the heirs at law of Mary Hanley, deceased, whose estate was the subject of partition. If they were incapacitated by reason of alienage from having an interest in the property to be partitioned or sold, that was a fact possible of being conclusively established by bringing them into the proceeding and trying out the question of their alienage by due process of law. A judgment obtained as the result of such an action would set at rest forever any existing or possible claims. The proceeding is one in rem, the subject being the partition of the real estate, or the distribution of the proceeds of the sale.

The general term concede, in their opinion, that the purchaser at the judicial sale in question was not offered a title free from doubt, and that concession seems fatal to their order, by which he is directed to complete his purchase. We agree with that court, that the proof in the record of the partition proceedings, which discloses the existence of other persons not made parties to the action, who might have an interest, did not sufficiently or conclusively, as against them, establish the incapacity of those persons, as aliens, to have or acquire such an interest.

The court should have granted the application of the appellant to be relieved from his contract, instead of ordering a further continuance of the proceedings in the action by a reference to take proof as to the capacity or incapacity of the absent parties to take and hold the real estate by reason of their alleged alienage. The burden of establishing the fact of alienage and of incapacity was upon the plaintiff in partition, and not upon the purchaser. He had the right to assume that the decree, and sale thereunder, conferred not merely a good legal title, but a title not open to further question or reasonable dispute by other persons, who stood in the same degree of kinship to the deceased. By the terms of his contract, he was entitled to a deed on a day fixed, and he was then ready to perform. That he was right in his objection to the title at that time, the general term acknowledged, and that being the case, they should not have changed his contract, and hold him to be bound to performance indefinitely, or pending further proceedings to perfect title. The sale was in June, 1887, and the deed should have been delivered in July. In January following, the general term ordered the further continuance of the

proceedings before a referee, and then, in the following May or June, after a delay of nearly a year, ordered the purchaser to complete his purchase. There is an absence of any proof as to any damage occasioned by the delay, and it is unnecessary, if not improper, to indulge in presumptions as to the existence of any. We rest our decision upon the ground that, for reasons we have given, the title offered was not one free from doubt, and was fairly open to the objection made.

The orders of the general and special terms should be reversed, and Koehler, this appellant, be relieved from his purchase and repaid his deposit upon the sale, with interest thereon from July 3, 1887, and all his proper and reasonable expenses in examining the title, with costs herein at special and general terms and in this court.

CAVEAT EMPTOR IS THE RULE APPLIED to judicial sales: Burns v. Hamilion, 70 Am. Dec. 572 et seq., note. But this rule may be overcome by evidence of fraud, or that the purchaser did not know the condition of the thing purchased, and was induced to buy through misrepresentations of those who, from their peculiar relations to the subject, were supposed to be thoroughly acquainted with it: Webster v. Haworth, 8 Cal. 21; 68 Am. Dec. 287; Roberts v. Hughes, 81 Ill. 130; 25 Am. Rep. 270; City of Charleston v. Blohme, 15 S. C. 124; 40 Am. Rep. 690. In fact the rule is applicable to execution rather than to judicial sales: See Freeman on Executions, secs. 304 i, 304 j, 304 k.

BONA FIDE PURCHASER AT JUDICIAL SALE, how far protected: Ayres v. Duprey, 27 Tex. 593; 86 Am. Dec. 651, and note 668; Carden v. Lane, 48 Ark. 216; 3 Am. St. Rep. 228.

HUNTER V. COOPERSTOWN AND SUSQUEHANNA VALLEY RAILROAD COMPANY.

[112 NEW YORK, 371.]

NEGLIGENCE IN ATTEMPTING TO BOARD A MOVING TRAIN. - One who, in the full possession of his faculties, and with nothing to disturb his judgment, attempts to board a train then moving at from four to six miles an hour, will be adjudged, as a matter of law, guilty of such want of ordinary care as will preclude a recovery for injuries by him sustained, although the conductor of the train told him "to jump on if he was going."

ACTION to recover damages for causing the death of plaintiff's intestate, under the circumstances stated in the opinion. Judgment for plaintiff.

E. M. Harris, for the appellant.

James A. Lynes, for the respondents.