I concur with the presiding justice in the affirmance of this order. The complaint alleged that the mortgage sought to be foreclosed *314was executed under the power conferred by the last will and testament of Samuel J. Held upon his executors, the mortgagors, and that the bond, to secure which the mortgage was given, recited upon its face that it was given as collateral security for the payment of certain notes given and to be given to the Mechanics and Traders’ Bank of the city of Hew York for moneys advanced and to be advanced, and that the bond was conditioned upon the fact of said notes having remained unpaid. There is nothing in the complaint to show that the said notes were the notes of the executors, or that the bank acquired the notes or advanced the moneys thereon to the executors. The validity of the mortgage depended upon the valid exercise of the power to mortgage by the executors. An examination of the will, which conferred the power to mortgage, shows that by it the testator created a trust during the life of his wife Zerlina, or so long as she should remain his widow, and that, upon the death or marriage of his wife, his estate was to be divided, except that the share of his daughter or daughters should be invested by the executors, and the interest and income thereof be paid to such daughter during her life, and, upon her death, the principal be divided among her children, share and share alike. It appeared that the testator left one daughter who, at the time of the execution of the mortgage, was unmarried and without issue, and that his wife was still alive and unmarried. Upon the foreclosure of this mortgage, the executors were made parties, as were also the children of the deceased. There is nothing in the record, either in the complaint or in the proof before the referee, to show that the notes in question were the notes of the estate; that they had been acquired by the bank prior to the time of the execution of the mortgage, or that the plaintiff or the bank, for which the plaintiff was acting as trustee, had advanced any of the moneys represented by the notes to the executors. From the date of the notes, it would appear that two of the four were dated after the execution and recording of the mortgage.
It is well settled that, upon a judicial sale, a purchaser is entitled to a marketable title to the property purchased by him, and that the court will not require such a purchaser to take a title which is subject to such serious doubt as would justify a prudent man in refusing to accept it as a compliance with a contract of sale; and a *315purchaser will not be forced to accept where the doubt arises upon a question of law. (See Fleming v. Burnham, 100 N. Y. 1; Abbott v. James, 111. id. 676, and Kilpatrick v. Barron, 125 id. 751.)
While, under section 1632 of the Code, a conveyance upon a sale, made pursuant to a final judgment in an action to foreclose a mortgage, vests in the purchaser of the real estate the title to the property of the mortgagor and mortgagee; and while such a conveyance is as valid as if it were executed by the mortgagor and mortgagee, and is an entire bar against each of them, and against each party to the action who was duly summoned, and every person claiming from, through or under a party, by title accruing after the filing of the notice of the pendency of the action, we cannot say, I think, that all persons who may ultimately become entitled to a share in this property were before the court so as to bar the subsequent right to claim that this mortgage was not given as a valid exercise of the power contained in the will of this testator. From the allegations of the complaint itself, and the proof before the referee, as stated by the presiding justice, it is quite clear that the execution of this mortgage was not a valid exercise of the power to mortgage contained in the will.
One of the defendants was an infant, and while he was before the court, and a guardian ad litem had been appointed, no defense had been made on his behalf, although the mortgage had assumed to convey his interest in the property. I am inclined to think that it was. the duty of the court, upon these facts being presented to it, to direct the guardian ad litem to apply to have the judgment set aside and to allow the infants to come in and defend ; but, assuming that in the absence of such an attack upon the judgment, the rights of the infant would be barred by the conveyance under the judgment, I think a most serious question is presented as to whether those entitled to the share of the daughter upon her death, would not have a right to attack this mortgage as absolutely void as to them. I think the question as to the validity of this conveyance as a bar to the rights of the children of this daughter is, at least, so doubtful that we ought not to decide it and compel an acceptance of the deed, in the absence of, and without hearing, those who would be: *316entitled to share in the property upon the termination of the life estate of the daughter.
I concur, therefore, in an affirmance of the order appealed from.
Order affirmed, with ten dollars costs and disbursements.