(dissenting). I cannot concur in the opinion about to be announced by a majority of the court in this case. The *366controversy concerns two objections interposed by a purchaser at a foreclosure sale, as to the marketability of the title. The first objection is that the notice of sale was not published for a sufficient length -of time prior to the sale; the second is that the premises, when purchased by the defendant, were impressed with a trust in favor of a cotenant who is said to be an incompetent although not judicially declared so. • -j
So far as the first objection to the title is concerned, to wit, that twenty-one days did not elapse between the day of the first publication of the notice and the day of sale, I reach the conclusion that this was not necessary, and hence that the objection is not substantial. It is undisputed, and the finding of the trial court is, that the notice of sale was published twice a week for “ three successive weeks immediately preceding the sale.” This is a compliance with the requirements of the statute, section 986 of the Civil Practice Act. Even if the notice of sale was for twenty instead of twenty-one days, it would be at most a mere irregularity and not in any sense a jurisdictional defect. Matter of Wright (224 N. Y. 293) has no bearing upon the facts presented in the present record. The question in the Wright case had to do with the service of citations in the. Surrogate’s Court and involved jurisdictional matters, and the decision of the Court of Appeals in that case was made to accomplish a uniform system in the service of citations issued by such courts. The reasoning of the court, therefore, should be confined to the particular facts presented in that case. The Wright case was decided in 1918. In the year 1920, in the case of Brooks v. Brooks (190 App. Div. 564), our court declined to follow the reasoning in the Wright case, and held that six publications of a summons were sufficient where the statute might be construed to require seven. Mr. Justice Blackmab, writing for the court in that case, cited Young v. Fowler (73 Hun, 179), where there was a similar holding, and adopted the conclusion reached in that case rather than the holding in Matter of Wright. (See, also, Wood v. Morehouse, 45 N. Y. 368; Olcott v. Robinson, 21 id. 150.) Most of the cases relied upon by the purchaser to sustain his first objection to the title will be found to relate to jurisdictional questions, such as the service of a summons or a citation, and do not apply to a mere regulation of practice in the matter of advertising a sale of real property under a judgment of foreclosure. In the case of City of Albany v. Goodman (203 App. Div. 530), alsp relied upon by the purchaser, a different situation is disclosed by an examination of the record. In that case the property advertised to be sold belonged to a city of the second class, and section 37 of the Second Class Cities Law -expressly provided *367that the sale of city propérty should not be valid unless held at public auction after public notice to be published once each week for three weeks in the official paper or papers. It was held there that a sale held eighteen days after the first publication was not a compliance with that particular statute; and even in that case two of the justices dissented upon the authority of Wood v. Morehouse (supra). The statute covering the situation in' the case just referred to is, of course, a special one and has no application to a sale in ordinary foreclosure actions such as we are dealing with here.
So far as concerns the second ground of objection urged by the purchaser here, to wit, that the title of the defendant was not marketable, because it was impressed with a trust for the beneficiary, his cotenant, I reach the conclusion that the rights of the incompetent can be fully protected by following the proceeds of the sale made to Smith, the plaintiff herein, by the incompetent’s cotenant Butler, the purchaser at the foreclosure sale, and by impressing a trust upon such proceeds for the benefit of the incompetent and to the extent of the incompetent’s interest in the property. This was the conclusion of the learned court at Special Term, for the third conclusion of law reads as follows: “That Emil
Walter, one of the defendants in the foreclosure action is entitled to one-fourth of the net proceeds of sale under said contract, and that the defendant Damon I. Butler hold the same in trust as trustee for the said Emil Walter to the credit of his estate.” Unfortunately, however, when the judgment in the action was prepared, this conclusion of law, owing to the carelessness of someone, was not carried into the judgment itself; and when the case came to our court I suggested a modification of the judgment in order that it might conform to what the learned justice below had decided, as I was of the opinion that if this were done the rights of the incompetent would be fully protected. This was my judgment then and I am still of the same opinion.
Upon this appeal the defendant’s counsel, in his brief, states that while he does not concur in the conclusion of the trial justice that the bare relationship of the tenancy in common created a fiduciary holding, nevertheless he consents that the proceeds of the sale be impressed with a trust in favor of the incompetent and his estate. In the situation thus revealed, I do not see why the defendant is not in a position to tender a good and marketable title to the plaintiff. The question of holding one-fourth of the net proceeds of the sale for the benefit of the incompetent is a matter between the defendant and the incompetent or the incompetent’s estate and is of no consequence to the plaintiff in this *368action. I fail to see why this cannot be done or why the doing of it could in any way injuriously affect the incompetent’s rights. Incompetents, like, infants, are wards of the court, and the court can follow trust funds and seize them, wherever found.
The foreclosure proceedings were undoubtedly taken in an honest endeavor to straighten out the title. The alleged incompetent was made a party thereto, process was duly served upon him, a person was named to receive service of the summons on his behalf, and thereafter a guardian ad litem was appointed by the court to represent such incompetent. The purchaser makes no objection to the regularity of the proceedings taken in the foreclosure action, and his only objections to the title are the two to which I have referred. One of these objections I consider of no substance.
As I read the record in this case, there is no justification for the suggestion that the foreclosure action was commenced or prosecuted in the defendant’s interest, or that there Was any intent on his part to overreach or in any manner defraud his cotenant, the alleged incompetent. The trial court made no finding to this effect, and in fact no such finding could have been made, for there is not a particle of evidence to sustain such a charge. The learned justice who heard the case at Special Term found, under the authority of Carpenter v. Carpenter (131 N. Y. 101) and other cases cited by him, that the incompetent had an interest in the property purchased by the defendant at the foreclosure sale, and that such interest was one-fourth of the net proceeds of the sale provided for in the contract between the plaintiff and the defendant, and directed that the defendant Butler hold the said one-fourth of the proceeds of the sale in trust for the alleged incompetent and for the credit of his estate, the court’s conclusion being that the incompetent or his estate should not lose the advantage of the bid made by the plaintiff. The effect of this judgment would be that the incompetent would receive some $1,500, which represents an equal one-fourth part of the amount bid by the plaintiff for the property after the payment of the mortgage held by a third party and any expenses incident to the foreclosure.
As the property has already been sold and the rights of the incompetent fully protected by the judgment in the foreclosure action, it seems to me both unwise and unnecessary to subject the estate of the incompetent to the uncertainty and expense of another sale. Under the judgment rendered by the trial court, and the modification thereof which I suggested, there is not the slightest chance that by the sale of the property which has been made between the plaintiff and the defendant the incompetent will be deprived of any of his rights. I think there should be a haodifi*369cation so as to provide that one-fourth of the net proceeds of the sale of the property for $9,000 be impressed with a trust in favor of the incompetent and for his benefit and for the benefit of his estate; that the amount thereof be deposited in court; and as so modified, that the judgment should be affirmed.
Judgment reversed upon the law, with costs, and judgment directed for the plaintiff for the relief demanded in the complaint, with costs. Settle order and findings upon notice, in accordance with opinion by Jaycox, J.