Opinion
Argued October 3, 1876
Decided November 14, 1876
Edward H. Hobbs for the appellant. D.P. Barnard for the respondent.
Upon this appeal it is not material to consider the question whether the mortgage executed by the plaintiff to himself, as guardian, was a valid security for money belonging to the infant's estate. It is sufficient that as between the guardian and the infant a court of equity would regard it as a valid security against the guardian and give full effect to it for the purpose of protecting the interest of the ward. The plaintiff clearly could not object in an action which he had instituted, and the original defendants not having interposed any objection in the foreclosure suit, are estopped from questioning the validity of the judgment, and are bound by the same. As to the infant, so long as the money is accounted for or realized under the decree of foreclosure, there can be no ground of complaint. The judgment being valid between the original parties, no difficulty exists as to conferring a good title, so far as they are concerned.
A more serious question arises in regard to the lien of the judgment creditors who were not made parties in the first instance, and we think that such creditors having been omitted as such parties before final judgment was entered, it does not sufficiently appear that there has been an absolute waiver of their respective liens. The judgment was entered long before there was any appearance on their behalf by attorneys, and the consent of the attorneys to the amendment of the proceedings nunc pro tunc, and a waiver of the irregularity after judgment, does not of itself establish authority for such a purpose. It does not appear in the stipulation or any of the appeal papers that such authority actually existed, and after a judgment has been entered and before the legal effect of the notice of lis pendens and other proceedings can be changed by consent of the attorneys, there should be affirmative proof of the power of the attorneys to enter into the stipulation, and that they had full and ample authority to act in the premises. The party seeking to enforce the sale under a decree of foreclosure under such circumstances, should establish, unequivocally, the right of the attorneys not only to appear but to execute the proper stipulation on behalf of the judgment creditors, which they claim to represent. A different rule might lead to embarrassment and subject the purchaser to the hazard of a litigation, and perhaps to serious loss. In this respect he should be fully protected, and, as the case stands, was not compelled to take the title offered to him.
The order of the General Term must be reversed and that of the Special Term affirmed, with costs.
All concur; EARL, J., in result.
Ordered accordingly.