This action was for the foreclosure' of a mortgage and one of the defendants was an infant. He was not served with the summons) but his mother procured the appointment of a guardian ad litem for him, who appeared in the action and put in an answer. Judgment was taken in the action, under which there was a sale to John J. Coger, who declined to take the deed and complete the sale, because the infant defendant had not been served. An order was made at Special Term requiring him to complete his purchase, from which he has appealed.
Ye think there is quite too much doubt about the question to require the purchaser to pay the money and accept the deed.
The question was up in the Court of Appeals, in the case of Bosworth v. Vandewalker (53 N. Y., 597), but the court decided the case on the presumption of jurisdiction in the absence of proof that there was no service; but in the opinion care is taken to say that “ we avoid passing upon the question, whether if it appeared that there was no service of process upon them, the proceedings for the appointment of a guardian ad litem and the putting. in of a general answer by her would give jurisdiction.”
*204We do not find that tbe question has been taken from this state of uncertainty, and the teaching of the case cited seems to be that but for the intendment of law that the Superior Courts have jurisdiction both of the subject-matter and the parties, until the contrary is shown, the validity of the judgment in that ease would not have been sustained.
It is quite true that in equity infants are viewed as wards of the court upon the service upon them of process to bring them in, but it has never been held that jurisdiction is obtained of the persons of an infant defendant in a foreclosure action until the service of process, even for the purpose of appointing a guardian ad litem,.
To require this purchaser to complete his purchase would be equivalent to compelling him to buy a law suit, and we do not think it should be so ordered.
The order appealed from should be reversed, with costs and disbursements, and motion denied, without costs.
Barnard, P. J., concurs on the ground that there is too much uncertainty, to require the purchaser to pay money and take the title. GilbeRt, J., not sitting.Orders reversed, with costs and disbursements, and motion denied, without costs.