If the plaintiff in the partition suit was not authorized to maintain the action because not a joint tenant or tenant in common with the remaindermen, still the defect was not jurisdictional, and the decree, if erroneous, not absolutely void. The court had jurisdiction of the subject-matter of the action and of the parties, and if it determined incorrectly in awarding to the plaintiff a relief to which she was not entitled, *Page 212 the error should have been corrected on appeal. (Blakeley v.Calder, 15 N.Y. 617; Howell v. Mills, 56 id. 226;Sullivan v. Sullivan, 66 id. 40.)
The purchaser bought with notice that the rights of the children not made parties to the partition were outstanding, and subject to those rights, paying a less amount because buying a less estate than the whole. What could pass by the foreclosure sale was what purported to be sold and must have been so understood by the purchaser. No wrong is done in requiring him to pay for exactly what he bought. An amendment of the decree was unnecessary. It furnished, as it stood, adequate authority for the sale of the property covered by the mortgage, and as that did not cover what the mortgagor did not have, the sale, as made, was consistent with the decree.
Before the partition suit, it is said, the widow gave to the New York and Boston Railroad Company a right to enter upon the land and maintain its road. That was dated July 19, 1871, but not recorded until 1882. It does not appear that the partition suit was actually later than the lease, nor that the purchaser under the decree had any notice of its existence. That purchaser, while furnishing affidavits for the present purchaser, does not say that he had such notice. The successor of the Boston road was made defendant in the foreclosure suit, and holds a deed from Hull, who was also such defendant. Some other objections need not be especially noticed.
The order should be affirmed, with costs.
All concur.
Order affirmed.