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
DYKMAN, J., concurs.