Jenkins v. Young
New York Supreme Court
Motion by the plaintiff for a new trial on exceptions taken at the 'Ontario circuit, and ordered to be beard at the General Term in thé first instance. The action was in ejectment to recover one undivided fifth part of •certain premises. William Jenkins died intestate in September, 1863, seized of the entire premises, leaving the plaintiff and four •others bis beirs-at-law.
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Motion by the plaintiff for a new trial on exceptions taken at the 'Ontario circuit, and ordered to be beard at the General Term in thé first instance. The action was in ejectment to recover one undivided fifth part of •certain premises. William Jenkins died intestate in September, 1863, seized of the entire premises, leaving the plaintiff and four •others bis beirs-at-law. The land was sold on the 27tb day of October, 1871, pursuant to an order of the surrogate of - Ontario county, for payment of the debts of the intestate. The petition instituting the proceedings for the sale was made by…
1Opinion of the Court
Bradley, J.,
The omission of the name of the plaintiff in the petition was a defect. The statute provided that the petition shall set forth “ the names and ages of the devisees, if any, and of the heirs of the deceased.” (2 R. S., 100, § 2.)
By that statute the defect was jurisdictional and the proceedings and sale did not have the effect to divest the plaintiff of his title, and he was entitled to recover unless by some statute the defect was in some manner obviated or his remedy defeated. (Ackley v. Dygert, 33 Barb., 176; Stilwell v. Swarthout, 81 N. Y., 109.)
By Laws of 1850 (chap. 82, § 2)…
2Cases cited8 opinions
- Owners of Ground v. Mayor of AlbanyNew York Supreme Court · 1836
- Rockwell v. . NearingNew York Court of Appeals · 1866
- People Ex Rel. Witherbee v. Board of SupervisorsNew York Court of Appeals · 1877
- Acker v. . AckerNew York Court of Appeals · 1880
- Stilwell v. . SwarthoutNew York Court of Appeals · 1880
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