So much of the order of the court at Special Term, affirmed at General Term, as assumes to limit the rights of the parties to bring an action for relief is clearly erroneous.
A refusal to grant relief upon a summary application is not, except under very special circumstances, which do not exist in this case, a final adjudication of the merits of the controversy and a bar to an action for relief. It will bar another summary application unless leave is given to renew, but will not affect any other remedy. The order appealed from does, by clear implication if not directly, determine in great measure, the rights of the parties in a form which would embarrass, if it did not determine, the merits to the extent of the alleged lien and incumbrance of the plaintiff. The appellants are prohibited from bringing any action, except upon tender or payment of the whole amount claimed by the plaintiff. A tender admits the claim to the amount tendered, and the tenderee may at any time accept it, and the tenderor must keep it good during the prosecution of any action based upon it. If the tender is accepted it cannot be reclaimed. The payment is voluntary and absolute. It follows that in no case could the defendants or either of them, under this order, contest the claim of the plaintiff to his alleged lien and incumbrance upon the whole property and to the full amount.
Again, the order limits the time within which any action may be brought to sixty days, by prescribing that as the time within which the tender or payment must be made. If an equitable cause of action existed, whether a tender was or was not necessary to entitle the parties to prosecute it, the statute of limitations and the established rules of law would control the right as to time, and the court could not arbitrarily *Page 335 establish other rules for the particular case. This branch of the order must be reversed.
The application of the adult defendant, Mills, to set aside the sale of the premises and for a re-sale of the same, or such other order or relief as should be just, was addressed to the discretion of the court of original jurisdiction, and its action is not reviewable here. There was good reason for refusing the application in his behalf. He acquiesced in, if he did not directly assent to, the sale, and at the price for which the premises were sold, and to the subsequent disposition of the proceeds. He has no very apparent reason, upon the papers before us, to complain of any of the actors in the transaction, or of the completed acts of the parties, and there is no injustice in turning him over to his action in such form and for such relief as he shall be advised. He accepted the value of his estate for the life of Alfred D. Hurtin in the premises, and, if there are any circumstances entitling him to relief, they must be established by action. The order refusing his application having been made in the exercise of a legal discretion resting in the court below, and no absolute legal right having been violated, his appeal from so much of the order as refuses his application should be dismissed. As both parties succeed, in part, neither the respondent, nor the appellant, Mills, should receive costs of the appeal as against the other.
The appeal of the infant defendant, William Mills Hurtin, presents other questions. He did not assent and was not capable of assenting to any of the proceedings by which he has been effectually deprived of his reversionary estate in the premises, if the proceedings and sale are allowed to stand. So far as appears, he had no knowledge of them; but this circumstance is of no significance by reason of his incompetency to act. His guardian ad litem waived no rights and could waive no rights of the infant. He did not take any part in the sale of the premises, and was powerless to prevent the sale at the fraudulently low price at which they were sold. His only remedy would have been by application to the court, *Page 336 and he was lulled to inaction by the belief induced by the circumstances and the statements of the plaintiff that the right of the infant to an undivided moiety of the premises was fully cared for and protected. But if he was unfaithful to his trust or colluded with others to wrong the ward of the court, his acts and omissions would not conclude or bind his principal. The sale of the entire estate, the life estate, and the estate of the reversions in gross, for what must be regarded as a mere nominal sum, under the circumstances, and followed by the incumbering of the premises as an entirety, to nearly the full value, by the purchaser, was a gross wrong to the infant. If the age and unprotected condition of the infant, and the unthrift and improvidence of his parents and those who were to protect the property against the incumbrances, be taken into consideration, the mortgages put upon the premises by the purchaser, George W. Hurtin, under the direction and advice of the plaintiff, were equivalent to an absolute sale of the property divested of all claim of the infant, leaving him only the pitiful sum of $1,045 for the one-half of property deemed good security by money lenders for $9,500, and actually worth over $13,000. Had good faith been observed, the undivided half of the premises would have been conveyed, as promised, in trust for the infant, and the purchaser would have paid nothing to the county treasurer for the infant, and for any loans he might make would only have mortgaged his own one-half. It is not disputed by any one connected with this controversy that in equity and good conscience and of right the one-half of the property, subject only to the life estate of A.D.H., or to any charge created by the extinguishment of that life estate, belonged to the infant defendant; and yet, under a scheme concocted and carried out by and under the direction of the present plaintiff and respondent, it was incumbered by and for the benefit of others to an amount and in a form that would necessarily lead to a total lose to the infant of his entire estate. The pretence that by this arrangement the infant, averse to the life of a farmer, would be enabled to obtain an education and enter one *Page 337 of the learned professions is entirely without foundation. There are other processes by which the estates of infants can be applied to their maintenance and education, and the law will not tolerate a resort to tortuous measures of doubtful propriety, and of great hazard to the interest of the infants, as a substitute for the authorized procedure in which the interests of the infant are well protected and cared for. Whatever might have been the rights and equities of the original mortgagees, as against the infant claimant of a moiety of the mortgaged premises, the present plaintiff, as their successor in interest and the purchaser of the mortgaged premises upon a foreclosure of the mortgages, has no equities as against such claimant.
The mortgagees, who the plaintiff swears were his clients, acting under his advice, were, upon the evidence and under the circumstances, within the rule which holds the principal to the consequences and legal effect of notice to and knowledge by the attorney or agent of facts which, if known to the principal, would affect his rights or create equities in favor of third persons. If this were not so, the plaintiff occupies a peculiar position. As an attorney and counselor of the court and adviser of the parties interested in the property, he originated, advised and consummated the sale and incumbering the property, by which he has been enabled to appropriate to himself, if the proceedings are permitted to stand, the property of this infant. However free from all actual intent to injure or wrong the infant the plaintiff may have been, the legal rights and position of the parties were known to and understood by him, and that it was a gross infringement of the infant's rights, and an improper interference with his property, and putting it at great hazard to deal with it as he advised, could not but have been known to him, and although he may, as he says, have hoped for better results, now that he has acquired a title to the property under his very devious proceedings, he must be held to have taken subject to all the equities of the real owner.
There is not the same objection to entertaining the appeal *Page 338 of the infant that prevails in the appeal of the other defendant. The infant is the ward, and entitled to the protection of the court upon a summary application as well as in a formal action. The right to relief once established, it is not within the discretion of the court absolutely to reject the summary application and remit the infant to his action. The court may, doubtless, staying adverse proceedings and protecting the subject-matter of the controversy pending the litigation, direct an action to be brought when a formal trial of any disputed questions of fact should be necessary or desirable. But the court, in this case, have absolutely denied the infant all relief, and so restricted and limited his right to bring an action as in effect to deprive him of that right, and place him in a worse position than he would have been without the intervention of the court. There are no disputed questions of fact which go to the equities of the claimant, and he is entitled to relief as a matter of right. The sale of his moiety of the premises was fraudulent, and the proceedings have been oppressive. The sale should be set aside and a re-sale should not be ordered. If the property should be sold for any reason, the sale should be in proceedings instituted under the statutes for the sale of the real estate of infants. The plaintiff and other parties should be at liberty to take any steps to assert and enforce any equities they may have as to the residue of the property and the money deposited with the county treasurer. There are no claims, legal or equitable, disclosed by the papers before us against the infant or his share of the estate. For the money borrowed he is not liable, nor can his estate be charged. The plaintiff, or the mortgagees to whose title he has succeeded, have made no advances to or for the benefit of the infant or his estate. The taxes are to be kept down and paid by the life estate, and not by the reversion. No claim can be made against him or his estate for taxes paid; the owner of the life estate can be compelled to pay them.
I have assumed that the proceedings for a partition were authorized by statute, and valid. It is not necessary to hold *Page 339 otherwise upon this appeal. The question will come up on the appeal from the judgment. I am, therefore, for dismissing the appeal of the defendant, Edwin Mills, from so much of the order as denies his application for a re-sale of the premises, and reversing the residue of the order as to him, without costs to either party as between him and the respondent, and for reversing the whole order as to the appellant, William Mills Hurtin, granting the motion to set aside the sale of his equal undivided half of the premises under the judgment in partition, and prohibiting a re-sale of the same under the judgment, with costs against the respondent.
CHURCH, Ch. J., ALLEN, PECKHAM and RAPALLO, JJ., concur.
GROVER, J., dissents.
FOLGER and ANDREWS, JJ., do not vote.
Ordered in accordance with opinion of ALLEN, J.