The plaintiff agreed to sell to the defendants a piece of land, No. 74 John street, New York, for $80,000. Five thousand dollars was paid, and this action is brought to recover the balance. The sole question presented is whether the title of the plaintiff is merchantable. John Mortimer, Jr., owned an undivided third thereof in 1875, when he died. He left a will and six adult children. ■ By the will this property passed as residuary estate, and it was to be divided into six shares,—one for each child for life, with remainder to the lawful issue of such child per stirpes, and not per capita. If the child died without issue E3 could dispose of his share by will, and, if not, the testator gave his share to his (testator’s) lawful issue. Four of the six children of testator had children in 1875. A partition sale was made by action, and none of the grandchildren then in esse were made parties to it. The plaintiff’s title was acquired at this sale. These children were necessary parties in the partition action. Moore v. Appleby, 108 N. Y. 237, 15 N. E. Rep. 377. This case is very similar to the case presented by this appeal. There was a life estate by will *495:;ind remainder to children. It was héld that the children were necessary parties to a partition suit. The case of Townshend v. Frommer, 125 N. Y. 446, 26 N. E. Rep. 805, does not necessarily conflict with this decision. A married woman conveyed lands to trustees to pay income to herself for life, with a direction that the trustees convey at her death to her children then living. There was a mortgage on the property, which was foreclosed during the life estate, and the children were not made parties to the action. It was held that the children had no interest in the title while the life estate was running, and that consequently they were not necessary parties. No mention is made in the •opinion of Townshend v. Frommer of , the previous case of Moore v. Appleby. Other cases, decided previously, were distinguished, and the case of Moore v. Appleby was cited on the argument. Under these circumstances, it seems improbable that the court of appeals •deemed the former case applicable to the latter one. The plaintiff’s title is not, therefore, a merchantable one, and the judgment should be .affirmed, with costs.
DYKMAN, J., concurs.