The plaintiff, the vendee, under a contract of sale, brought this action to recover the earnest money paid by him upon signing the contract, and the expenses of examining the title. The contract upon which the action is based recited that a foreclosure action “ for the purpose of straightening out the title ” was then pending, and the title should be closed after the termination of that action provided the defendant became the purchaser, and with proper provisions for returning the earnest money if the defendant did not purchase at the foreclosure sale. The purchase price under the contract was $9,000, $1,500 being paid upon signing the contract and the balance was to be paid by the purchaser signing and delivering a purchase-money mortgage for the sum of $7,500. Upon the foreclosure sale the defendant, the vendor, in the contract, became the purchaser and is ready and willing to deliver a deed upon plaintiff’s compliance with said contract, but the plaintiff declines to proceed and asks his money back upon the ground that the defendant did not get good title under said foreclosure and that the title tendered to plaintiff is defective.
The facts are stipulated as follows: The premises were purchased in 1915 by one Augusta W. Walter. They were then subject to a mortgage for $2,500. Augusta W. Walter died intestate September 9, 1921, seized of said premises, leaving as her only heirs at law the following brothers and sisters: Emil Walter, Herman Walter, Emma I. Butler and Louise F. Walter, all of full age and sound mind except Emil Walter, an incompetent person. On June 28, 1923, Emma I. Butler, Louise F. Walter and Herman O. Walter conveyed their share in said premises to Damon I. Butler, the husband of Emma I. Butler, and thereby he became the owner of three *363undivided fourths thereof and Emil Walter was the owner of the other undivided one-fourth part thereof.
It was further stipulated that the notice of sale was published twice a week for three successive weeks, commencing September 24, 1924, and ending October 11, 1924, and the sale took place October 14, 1924, making an actual period of twenty days between the first publication and the sale.
The plaintiff claims that this publication is not a compliance with the section of the Civil Practice Act governing such publication (§ 986), and also that the title of the defendant is impressed with a trust in favor of Emil Walter, who was his cotenant prior to the foreclosure sale.
In City of Albany v. Goodman (203 App. Div. 530) a statute requiring “ notice to be published once each week for three weeks ” was under consideration by the court. Eighteen days had elapsed between the first publication and the sale. The court said: “We believe the intent of this statute is that there must be three weeks during which public notice of the sale is given prior to the sale; that the sale is not valid unless the first publication is had twenty-one days before the sale. Otherwise there is not a publication for three weeks.”
Matter of Wright (224 N. Y. 293) involved the publication of a citation. That publication was made under section 2528 of the Code of Civil Procedure, which required a publication of “ not less than once in each of four successive weeks,” and the court held: “ ‘ In each of four successive weeks ’ requires a period of twenty-eight days between the day of the first publication of the notice and the return day thereof, or the period for which notice is given, although apparently for four weeks, will be uncertain and in some cases not only materially less than four weeks, but it may in some cases be materially less than in others, as the exact time will depend upon the particular days upon which the publication is made.”
Section 986 of the Civil Practice Act provides that the notice of sale under the circumstances involved here shall be published “ at least twice in each week for three successive weeks.” The language which prescribes the period during which this publication shall be made is identical with that involved in Matter of Wright (supra) and must receive the same construction.
Upon this subject many contradictory decisions have been made, and it is probably impossible to reconcile them, and it certainly seems unnecessary to discuss them here.
In Matter of Wright (supra) the court said: “ No reason has been *364suggested except the slight difference in the wording of the statutes for a different rule in computing the time for the service of a citation than is required in computing the time for the service of a summons. Uniformity of rule is desirable and the statutes should have a construction to sustain such uniformity unless a different rule was intended by the Legislature.”
Uniformity of rule for the computation of the time for the publication of all notices is desirable, and the decision in Matter of Wright (supra) harmonizes the rule in relation to the publication of a citation and a summons. Much of the difficulty which arose in relation to the computation of the time for publication of a summons was caused by section 441 of the Code of Civil Procedure, which declared that the time should be complete upon the day of the .last publication, and section 787 of the Code of Civil Procedure which declared that the period of publication must be computed so as to include the day which completes the full period of publication. The result was to necessarily require seven publications instead of six. (Brooks v. Brooks, 190 App. Div. 564.) This difficulty has, however, now been obviated by rule 51 of the Rules of Civil Practice which prqvides: “ service by publication is complete on the forty-second day after the day of first publication.” To now hold that the publication in this case is not complete until twenty-one days after the first publication, it seems to me, harmonizes all the rules in relation to service by publication and the publication of notices of sale.
As a result of the sale in the foreclosure action, is this property in the defendant’s hands impressed with a trust in favor of Emil Walter? In the contract for the sale of this property, made by the plaintiff and the defendant, this clause appears: “ That a foreclosure action is now pending for the purpose of straightening out the title.” The conclusion is inescapable that the foreclosure was being conducted in the interest of the defendant. The manner in which the title was to be “ straightened out ” is equally apparent, and that was by eliminating the interest of the incompetent therein. That the defendant sought to accomplish this result without any evil intent and perhaps with the laudable desire of being better able to care for the incompetent, is not at all unlikely, but courts cannot depend upon belief in fair motives and generosity for the protection of incompetents. The interest of the incompetent must be positively protected, and the methods adopted by the defendant do not accomplish that result. This court, at Special Term, after reviewing all the authorities upon the subject, came to the conclusion that the defendant’s title was impressed with a trust in favor of his former cotenant and that the defendant should *365hold as trustee for his cotenant one-fourth of the proceeds of the sale. But this conclusion contained in the opinion of the court was not carried into execution in the judgment. In the light of the above quotation from the contract, and in view of the circumstances of the parties, the defendant being the brother-in-law of his cotenant and that cotenant being an incompetent, it is apparent that the foreclosure mentioned in the contract was instituted in the interest of the defendant, and that any title acquired by him by reason thereof is impressed with a trust in favor of his cotenant. (Carpenter v. Carpenter, 131 N. Y. 101; Thayer v. Leggett, 229 id. 152.)
Carpenter v. Carpenter (supra) involved the question of the purchase of an outstanding mortgage and a foreclosure of same. The court said (Andrews, J., p. 109): “ The transaction by which some of the tenants in common claim to have acquired the whole estate to the exclusion of their cotenants, cannot be upheld within the principle of many cases. (Van Horne v. Fonda, 5 John. Ch. 388; Knolls v. Barnhart, 71 N. Y. 474; Rothwell v. Dewees, 2 Black [U. S.] 613; Dubois v. Campau, 24 Mich. 361.) The defendants and the plaintiffs had a community of interest in a common title, arising under the devise. The defendants, or some of them, were in the actual possession and control of the common property. They were bound to do nothing with a view to prejudice the interests of the plaintiffs. They could not buy in an outstanding title to defeat the right of their cotenants. If the foreclosure of the mortgages was a proceeding hostile to the defendants, and they had not been in default, and their purchase was made of necessity to protect their own rights, with full knowledge of the situation on the part of the plaintiffs, the moral, and perhaps the legal, aspect of the case would be altered.”
In that case all but two of the plaintiffs were infants, and in the present case a cotenant is an incompetent. The rule laid down in that case, therefore, seems to be strictly applicable to the present case.
The conclusions of law made at Special Term are annulled, and the judgment reversed, with costs, and judgment directed in favor of the plaintiff for the relief demanded in the complaint.
Upon settlement of the order of reversal herein, appropriate conclusions of law may be proposed, and also such findings of fact, if any, as are necessary to sustain the judgment to be entered herein.
Kelly, P. J., Rich and Young, JJ., concur; Manning, J., dissents and reads for modification.