this case the purchaser asked to be relieved from his purchase of premises bought at a sale in partition, and the case comes up on the appeal of the plaintiff, from the order of the special term releasing him from his bid.
The principal defect or irregularity consists in the alleged *452want of jurisdiction of the court over the person of Samuel Mitchell, a supposed infant and idiot, or lunatic, by reason of which he is not bound by the proceedings and decree in this action.
The facts in regard to this party, on which this question arises are these.
This is a suit in partition respecting lands in the city of Hew York, and of which the court has therefore general jurisdiction, in which a large number of parties are named as defendants, and among others Samuel Mitchell. As to many of these defendants, it is undisputed that the court acquired jurisdiction of them either by the service of process, or by their voluntary appearance. There was therefore a suit properly commenced, in which Mitchell, among others, is named as defendant. He was not served with process. He did not in person, or by his own voluntary act, put in an appearance; nor was any notice, or other paper served upon him in the suit; nor was publication made or ordered as to him, so far as appears from the papers in the case.
Mitchell was named in the complaint as entitled to an undivided twentieth part of the premises, but (as was usual) neither his residence, age, or mental condition was stated in the complaint.
Civil actions shall be commenced by the service of a summons. (Code, § 127.) A summons must be served (except where service is by publication) by delivering a copy thereof to the defendant personally; and if of unsound mind, and having a committee (§ 134), then also to such committee. A voluntary appearance of a defendant is also equivalent to personal service of the summons upon him. (§ 139.) Hone of these things have been literally done, and this defendant, if an idiot, or a lunatic, is incapable of making or directing a voluntary appearance.
The question remains whether any thing else has been done legally equivalent to the service of process, or sufficient to give the court jurisdiction of the person of the defendant Mitchell.
The action appears to have been commenced, at least, the complaint appears to have been verified, in October, 1854. In December, 1854, William J. Mounts, describing himself as the guardian of Samuel Mitchell, an infant idiot, of about the age *453of twenty years, subscribed a petition to this court, setting forth the commencement of this action; declaring that the “petitioner’s said ward is an infant lunatic as above set forth,” and praying that Mr. Judah might be the guardian of the petitioner’s ward in the defence of said suit/
This petition was verified on the 19th of December, 1854, and states that the petitioner appeared before John C. Dunlevy, judge of the Probate Court within and for said county, and being sworn, stated that the same was true of his own knowledge, except as to matters stated on information and belief, and as to them that he believed it to be true. It is objected that the act of Congress requires the place, where the affidavit was taken, to be stated, and that this verification is defective in that particular. But it is headed, “ State of Ohio, Warren county, ss.,” and this, taken in connection with the certificate of the judge, which admits of the construction that the petitioner appeared before him within said county, and with the legal presumption in favor of the probable knowledge and compliance by the judge with the formalities of wla, is sufficient, I think, to overcome that objection. The same considerations, perhaps, should induce us to overrule the objection, that the clerk of the Probate Court has not certified to the genuineness of the signature of the judge. He certifies that “John 0. Dunlevy, before whom the above affidavit was taken, is sole judge of the Probate Court in and for said county;” and the judge again certifies to the authenticity and regularity of the clerk’s certificate. I am inclined to think this is sufficient; but if it were not so, I think the proper course would be, not to discharge for that reason the purchaser from his bid, but to allow a proper certificate, both on the part of the judge and the clerk, to be procured and filed nunc pro tunc, and only to discharge the purchaser on failure to procure and file the same within a specified time, to be fixed by this court.
The petition was presented to Justice Roosevelt at a special term, on the 4th of January, 1855, and an order entered thereon, that Mr. Judah be appointed guardian ad litem of the above-named defendant, with others. He was also ordered to file a bond in the penal sum of $250, as such guardian, which was done; and he thereafter answered as such guardian, and conducted the subsequent proceedings for this defendant. In the *454final decree for sale, Mr. Judah is recited as appearing as counsel for all the defendants, and for the guardian ad litem of all the infant defendants. There appears to be no proof in the case as to the infancy and idiocy or lunacy of Mitchell, beyond, what is contained in the petition and order above mentioned, except that annexed to the papers used in opposition to the motion in this case, for the discharge of the purchaser, is what purports to be a copy of an appointment of William J. Mounts, as guardian for Samuel Mitchell, an idiotic person aged about twenty years, of Warren county, Ohio. This appointment was made by the Probate Court of Warren county, Ohio, on tile 13th day of October, 1854. The question, therefore, seems to be, whether on the petition of a guardian, thus made and presented, this court had authority, without service of process or voluntary appearance, to appoint a guardian of Samuel Mitchell, and conclude him by the proceedings in this suit. On the one hand, it is contended that the court possesses this power by virtue of its inherent authority over the persons and estates of infants, lunatics, and idiots, and may exert it upon its own motion, without suggestion from any quarter; or may take such measures to enlighten itself, as it may think proper, in regard to the infancy or lunacy of any party, and the proper person to be appointed committee or guardian ad litem for such person ; and having exercised this power in the present case, in a manner satisfactory to itself, its action is conclusive and the proceedings regular. On the other hand, it is contended that service of process, or voluntary appearance, is the only mode of bringing any party into court; that the Revised Statutes expressly require notice to be served upon the infant; and that it is only after such service made upon the proper person and in the regular way, and upon the petition of the infant, or his committee or guardian appointed in this State, that jurisdiction can be acquired of the infant and lunatic, or a guardian ad litem, appointed for him; and that in the event of this not being done, the proceedings are coram not judice, and void.
The important, if not the only serious question in the case is, whether the defendant Mitchell is or is not bound by the proceedings in the suit. And on the part of the purchaser it is said in the first place, that the provisions of the Revised Statutes have not been followed, and therefore the infant is not bound. *455Those provisions (2 Rev. Stat., 317) relate to proceedings at law for the partition of lands, but are in,substance probably applicable also to proceedings in equity (Ib., 329), if they are not superseded by the provisions of the Code or the general practice of the courts in relation to the mode of commencing suits and appointing guardians ad litem. Section 2 provides for the appointment of guardians for minors (preliminary to the service of the petition for partition), as well non-resident as resident, by a previous service of a notice of ten days on the resident minors. Section 12 provides that after such appointment, the service of the petition and notice of presentation shall be made on nonresident parties, minors, or of full age, by a three months’ publication in the State paper, and in a newspaper printed in the county where the premises are situated.
But the proceedings are in their nature inappropriate to an action for partition under the Code. And, therefore, they are not required to be strictly followed (Code, § 448), although it has been held in the Superior Court of Hew York, that in a suit-under the Code, a guardian in partition cases may be appointed previous to the commencement of the action. (Althause a. Radde, 3 Bosw., 410.) At all events, it cannot be doubted that an appointment, pursuant to the provisions of the Code, would be legal and binding.
By section 115 of the Code, where an infant is a party, he must appear by guardian. In this case the infant is a party-defendant. He is a party to the suit, when he is named as a party in the summons and complaint, and is shown thereby to have an interest in the subject-matter of the action, and where the suit is actually commenced against some of the persons named as the defendants therein. And this is especially so, where he appears to have a joint interest, or an interest in common with others. In such event he becomes a party to the suit as well before as after the service of process upon him. Therefore if an infant, he is not obliged to wait until the actual service of process upon him, before he procures the appointment of a guardian ad litem. (Varían a. Stevens, 2 Duer. 635.) So also he may voluntarily appear and have the proceedings dismissed if irregular or void. (Lyle a. Smith, 13 How. Pr., 104.) So also he may on his own motion procure the appointment of a guardian ad litem. serve an answer to the merits of the action, *456and compel the plaintiff to receive it. (Wellington a. Claason, 9 Abbotts’ Pr., 17; S. C., 18 How. Pr., 10.)
■Mitchell then having become a party-defendant to a suit in partition, and being an infant over the age of fourteen years, and an idiot, or a lunatic, a guardian was to be appointed for him. {Code, § 116.) Properly, if the infant had been of sound mind, the guardian could and should have been appointed upon the petition of the infant himself. (§ 116.) But in the present case this was of course impracticable. A petition from a lunatic would have been useless and nonsensical; and strictly speaking the Code does not provide for the case of a lunatic infant over fourteen years of age. It must be regulated therefore by the established practice of the court, and by sound judicial discretion. In analogy to the mode of procedure required where the infant is under fourteen years of age, and founded upon the want of discretion supposed to attach to infants of such tender age, perhaps it would be wise to exact notice to the person with whom the infant resides, where the application for the appointment of a guardian is by a relative or friend of the infant, and he has no guardian. But in this case he has a guardian (extra-territorial to be sure). And it is fair to presume that the lunatic resides with, or is under the immediate charge and control of, such guardian; and if proof is necessary upon this subject,—in the absence of any evidence to the contrary,—I think it may be supplied hereafter nunc fro tunc by way of amendment. {Code, § 173 ; Croghan a. Livingston, 17 H. Y., 218; S. C., 7 Abbotts’ Pr., 352.)
If the Revised Statutes are to govern, I perceive no section which is directly applicable to the case in hand, unless it be section 2, of the title in regard to the partition of lands before quoted (2 Rev. Stat., 317, § 2), and that only requires notice to the resident minors of intention to apply for the appointment of guardians, both for the resident and non-resident minors.
If we refer to the mode of commencing a suit against a person, judicially declared to be of unsound mind, we find that it is to be commenced by service of the summons upon the defendant and upon the committee (or, as he appears to be termed in Ohio, the guardian). (Code, § 134.) This is essential, doubtless, to enable the plaintiff to obtain a regular and compulsory judgment where the adverse party does not appear. But I can*457not suppose it to be indispensable where such adverse party does appear, in the only mode in which he can (in the case of a lunatic) possibly appear, that is through the medium and intervention of a third party. In such case, if the committee or guardian present the petition to the court for a guardian ad litem, it comes from the most proper person who can possibly represent the party, and in the appropriate and commendable exercise of his functions as such committee or guardian; and if, in addition, the petition itself discloses the fact that a suit in partition has been commenced against such infant and lunatic, and this fact is not disputed, I cannot but think that the court obtains jurisdiction of the person of the lunatic and infant defendant ; so far at least as to conclude him in the suit in regard to the lands lying in the State of New York.
The practice pursued in this case to effect an appearance of the lunatic, seems to be in accordance with the usual practice of courts of equity, where a lunatic is made a defendant in an action (1 Barb. Ch. Pr., 86, and cases and books there cited), and must, I think, be conclusive upon the defendant accordingly. As this practice is supposed to be ample to protect the rights of the lunatic, the additional disability or quality (if I may so term it) of infancy, ought not perhaps to be regarded as imposing additional restrictions or difficulties in the way of procuring his appearance in the action; and especially so, as none of the requirements of the Code in regard to the appointment of a guardian ad litem, seem directly adapted to the case of an infant idiot or lunatic.
Further, the Code (§ 139) provides that the “ voluntary appearance of a defendant is equivalent to personal service of the summons upon him.” The spirit of this enactment has been held to be complied with, by the voluntary appearance and procurement of a guardian ad litem by an infant defendant over the age of fourteen years, without the actual service of process upon him. (Varian a. Stevens, 2 Duer, 635; approved in Wellington a. Claason, 9 Abbotts' Pr., 175; S. C., 18 How. Pr., 10.) If this distinction is correct, and it seems to me to be so, I am unable to see why it should not be extended to the voluntary appearance of an infant lunatic defendant, over the age of fourteen years, without the actual service of process upon him, provided the requirements of the Code, so far as they are appli*458cable, and in the absence of any express requirements, the established practice of a court of equity, are observed in effecting his appearance, and procuring the appointment of a guardian ad litem.
I am of opinion, therefore, that none of the objections of the purchaser to the validity of the partition proceedings, as against the defendant Mitchell, are well taken, to that degree that they are incapable of being remedied by amendment. I have not examined any other objections than those relating to the defendant Mitchell, because none other were examined at the special term, and because it seemed to be taken for granted, that unless the purchaser could prevail on these, the others would be unavailable.
I conclude that the order of the special term should be reversed, and the purchaser be required to complete his purchase, provided the plaintiff, within forty days after the entry and notice of the order as finally settled upon this decision, shall procure and file with the clerk of this court, where the other papers in this cause are filed, an amendment of the petition of William J. Mounts, to the effect that his infant or lunatic ward was, at the time of verifying his original petition, residing with him, or under his charge or custody; and an amendment of the jurat or certificate of the judge attached thereto, stating the place where the said petition was verified and affidavit was taken ; and an amendment of the certificate of the clerk, so that it shall, in addition to its present contents, certify to the existence of the court and the genuineness of the signature of the judge. Such amendment when made, to be deemed made nunc pro tunc and if not made and filed as aforesaid, then that the order of the special term (except so far as it allows more than $10 costs of motion, in which particular, it should, in any event, be reversed) be affirmed.
In either event,—of affirmance or reversal,—the petition is entitled to $10 costs of the special term, and $10 costs of appeal.
Sutherland, J., concurred.
Bonney, J., dissented.