The action is ejectment. The plaintiffs are the surviving children of Ellen and Philip A. Dugan. Ellen Dugan died intestate on the 8th day of May, 1863, seized and possessed of the premises which are the subject of this suit. She obtained the premises by purchase in 1859 and gave back a purchase-money mortgage for $500, which mortgage remained a lien upon the premises at the time of her death. On September 2,1863, suit was brought to foreclose this mortgage by George Vassar, the assignee of the mortgage, and the same passed to judgment and sale, and the premises were bid in upon such sale by Philip A.. Dugan, who subsequently received the sheriff’s deed thereunder. Prior to judgment in the foreclosure suit the said Philip A. Dugan was appointed guardian ad litem of his children, who had been made defendants in the foreclosure action, and he appeared by attorney and filed the usual answer of a guardian ad litem. Dugan conveyed a part of the premises to Henry T. Yan Pelt by deed, dated August 12, 1864, and Yan Pelt conveyed the same premises to William H. Denyse, who subsequently died, and by his last will and testament devised the premises to the defendant Margaret L. Denyse, who is at present in the possession and enjoyment of the premises.
It does not appear from anything in the record that the defendant Annie Schoenfeld had or claimed any interest in the premises. So far as appears, she was an entire stranger to the subject-matter of the suit, and as to her, defendant’s motion to dismiss, made at the close of the plaintiff’s case, should have been granted. The claim, as presented by the appellants, is that Philip A. Dugan could not purchase the fee of the property and thereby secure title to himself for his own benefit, but that such purchase inured to the benefit of his cestuis que trust. That at the most he could only purchase to protect his life estate as tenant by the curtesy. Dugan died subsequent to the conveyance which he made to Yan Pelt, and the claim is how made that the whole title is vested in the plaintiffs and that Dugan’s conveyance was absolutely void.
We have recently held that a purchase made at a foreclosure sale by a mother who was the guardian in socage of her infant children, and, therefore, chargeable with a duty to “ safely, keep the inherit anee of her ward,” was not void, but. voidable only, and that she acquired the title subject to its being charged with a trust in her hands. (O'Brien v. General Synod of Reformed Church, 10 App. Div. 605.) The plaintiffs could by no possibility escape the payment of the purchase-money mortgage, which was a lien upon the premises at the time of the death of Ellen Dugan.if the property
It follows that, within the doctrine of the cases cited, this action cannot be maintained, and that the order granting a new trial was, therefore, right, and should be affirmed.
All concurred.
Order granting new trial affirmed, with costs.