The bill in this cause was filed in 1844, in the name of Mary E. Darrin and others, infants, by John K. Damn, their father, as next friend, against Hatfield, to cancel a mortgage held by him upon lands which descended to the plaintiffs from their mother, on the ground that the mortgage had been improperly obtained. The answer
Held, that the father of the infant plaintiffs had an interest in the mortgaged premises, as tenant by the curtesy, which was not cut off by the sale, and that the purchaser therefore could not obtain a good title.
That the fact of the father acting as next friend of the infants did not make him a party to the decree, so as to affect his individual rights.
The petitioner having alleged that he could not obtain good title, was not confined to the specific defect pointed out in the petition, but had a right to avail himself of any defect of title which the papers disclosed.
These conclusions rendered it unnecessary to decide whether the decree of foreclosure made in favor of the defendant, in pursuance of a prayer in his answer to a bill filed in behalf of infants by their next friend, was or was not void, as against them.
(See 4 Sandf. 468, S. C.)