In re Melrose Ave, in Borough of the Bronx

• Decision Date: 12 July 1922
• Citation: 136 N.E. 235,234 N.Y. 48
• Parties: In re MELROSE AVE, IN BOROUGH OF THE BRONX.
• Court: New York Court of Appeals Court of Appeals

234 N.Y. 48

136 N.E. 235

In re MELROSE AVE, IN BOROUGH OF THE BRONX.

Court of Appeals of New York.

July 12, 1922.

Application by the People of the State of New York for payment of an award made in proceedings to open Melrose avenue in the Borough of the Bronx. From an order of the Appellate Division, First Judicial Department (196 App. Div. 890,187 N. Y. Supp. 944), which unanimously affirmed an order of the Special Term directing payment of an award in street opening proceedings, the Comptroller of the City of New York and others appeal.

Affirmed.Appeal from Supreme Court, Appellate Division, First department.

John P. O'Brien, Corp. Counsel, of New York City (Joel J. Squier and William B. R. Faber, both of New York City, of counsel), for appellants.

Charles D. Newton, Atty. Gen. (William J. Smith, of New York City, of counsel), for respondent.

CARDOZO, J.

One James Wells, a citizen of this state, died in 1879, without heirs, seized of real property in the city of New York. Twenty years later, in 1899, the city of New York opened Melrose avenue across the land. In the condemnation proceedings then begun, an award of $2,975 with interest was made to unknown owners. Another 20 years went by, and in 1919 the state of New York, having sued in ejectment to recover the abutting lots, obtained judgment establishing the defect of heirs and its own title to the fee. There followed this proceeding to compel the payment of the award. The city of New York, answering the petition by its comptroller, admits the failure of title by reason of defect of heirs. It seeks, however, to deduct from the award the taxes and assessments imposed upon the land between the death of the owner and the opening of the avenue.

[1][2] Taxes may not be imposed upon land belonging to the state. R. S. pt. 1, c. 13, tit. 1, § 4, subd. 2; Tax Law (Consol. Laws, c. 60) § 4, subd. 2. Assessments for local improvements may be imposed upon such land, but only after compliance with restrictions, as, e. g., notice to the state comptroller, which in this case were disregarded. Public Lands Law (Consol. Laws, c. 46) § 21. These rules are conceded by the city, but their application is contested. The argument is that the title of the people did not vest at once upon the failure of descent, but remained imperfect and inchoate until established by decree. Support for this postponement of the vesting is found, or at least looked for, in the antiquities of feudal custom. Subjects of curious interest they remain. We think they are no longer law.

[3][4][5] ‘The people of this state, in their right of sovereignty, are deemed to possess the original and ultimate property in and to all lands within the jurisdiction of the state; and all lands the title to which shall fail, from a defect of heirs, shall revert, or escheat to the people.’ Const. art. 1, § 10. There is no room in this simple and sweeping mandate for an indeterminate interval of suspension or abeyance. The state as the ultimate owner is in effect the ultimate heir. Matthews v. Ward, 10 Gill & J. (Md.) 443, 451;People v. Richardson, 269 Ill. 275, 109 N. E. 1033; Burgess v. Wheate, 1 W. Bl. 123, 163, 164; Christianson v. King County, 239 U. S. 356, 370, 36 Sup. Ct. 114, 60 L. Ed. 327. Ejectment (Code Civ. Proc. § 1977; Public Lands Law, § 139c, as amended by Laws 1920, c. 932) or inquest of office ‘does not constitute an escheat.’ Sands v. Lynham, 27 Grat. (Va.) 291, 298, 21 Am. Rep. 348. It is the remedial expedient by which the fact of escheat is authenticated where there is uncertainty or contest. The fact and not the record is the origin of title.

We do not overlook distinctions that were drawn in the days of the feudal kingship. The incidents of escheat varied as the person dying without heirs was alien or subject. When an alien died, there was no need of inquest of office or other judicial determination. The alien had no heritable blood, and hence heirship was impossible. Hamilton v. Brown, 161 U. S. 256, 263, 16 Sub. Ct. 585, 40 L. Ed. 691;Jackson v. Adams, 7 Wend. 367. When citizen or subject died, there was need of some restraint upon the power of the mighty. In such a case there was at least a presumption of living heirs. Wilbur v. Tobey, 16 Pick. (Mass.) 177. The presumption was one to be heeded by the king as well as others. Statutes of Henry VI (8 Hen. VI, c. 16; 18 Ven. VI, c. 6) bring the evil and the remedy before us. They recite that the lands and tenements of many of the king's liege people are seized upon the inquests of escheators, or let to farm by the treasurer or chancellor before inquests are returned. There shall be no royal grants thereafter in advance of office found. Doe v. Redfern, 12 East, 96, 109; Wilbur v. Tobey, supra. The effect of these statutes was to render the king's title imperfect and inchoate. Even if he was owner, he was unable, before return of the inquest, to dispose of what he owned. How his rights stood before the statutes is involved in some obscurity. Shaw, C. J., thought that there were restraints at common law. Wilbur v. Tobey, supra. That, it seems, was the view of Sutherland, J., in Jackson v. Adams, supra, decided by the Supreme Court of this state in 1831. Other judges have maintained that there were no restraints aside from statute. McCaughal v. Ryan, 27 Barb. 376, 378.

‘Staundford in his Prerogativa Regis, 54a, though he states that the King has a possession in law upon a descent, reverter or escheat, yet adds, that he cannot make a possession in deed, because there is a statute (18 Hen. VI) to the let thereof.’ Lord Ellenborough, C. J., in Doe v. Redfern, supra.

Later scholarship has thought it the better view ‘that an inquest of office is only a proceeding to ascertain the title of the crown by escheat, and not an essential condition to the vesting of such title, ‘or else the freehold should be in supense which may not be.’' Hardman, The Law of Escheat, 4 Law Quarterly Rev. 318, 336. The whole subject is closely interwoven with the ancient law of seizin. Blackstone, treating of escheats, reminds us that, even where there are heirs, ‘an entry or other seizin’ was once required ‘in order to make a complete title.’ Bl. Comm. bk. 2, c. 15, p. 245; cf. 4 Kent's Comm. 386, 389; Maitland, The Mystery of Seisin, Collected Papers, I, 365; Holdsworth, History of English Law, III, 81. Our forefathers, in speaking of title, thought often of seizin when to-day we think of ownership. Holdsworth, supra. General statements that ‘the King's title was not complete without an actual entry upon the land, or judicial proceedings to ascertain the want of heirs or devisees' (Hamilton v. Brown, supra; Blackstone, supra) are likely to be misleading unless we keep in mind the common-law conception of seizin and its consequences.

[6] That conception is to-day of vanishing importance alike for sovereign and for subject. Entry upon land is unnecessary in New York to perfect the title of an heir, or his capacity to transmit the inheritance to others. Kent, supra. We think it is unnecessary to perfect the title of the state. Escheat in the days of Henry VI was the privilege of the feudal lord, exercised for his own good (Atty. General v. Mercer, 8 App. Cas. 767, 772), with all the attendant temptation, where the loar was also king, to oppression of the subject. Escheat to-day is not the privilege of one, but the collective right of all when the individual right has failed. We agree with Strong, J., writing for the General Term of the Supreme Court in McCaughal v. Ryan, supra, decided in 1857, that the restraints imposed by ancient statutes upon conveyance by the king are not continued by our law as restraints upon conveyance by the state. Article 1, § 16; In re Carnegie Trust Co., 206 N. Y. 390, 397,99 N. E. 1096,46 L. R. A. (N. S.) 260. No longer are there vassals trembling at the rapacity of kings and lords.

[7][8][9] Escheat, as it survives in the Constitution of New York, preserves the name but ignores the origin or its feudal prototype. In origin it was an incident, not of sovereignty, but of tenure.

‘An escheat, it must be remembered, never falls to the King, as such, but goes always to the lord of the fee.’ Hardman, The Law of Escheat, 4 Law Quart. Rev. 318, 323.

Now feudal tenures are abolished (Const. art. 1, § 11), and all lands within the state are declared to be allodial (article 1, § 12). What was once an incident of tenure has become an incident of sovereignty. Matthews v. Ward, supra. ‘In personal estates, which are allodial by law, the king,’ said Lord Mansfield (Burgess v. Wheate, supra), ‘is last heir where no kin.’ With tenures abolished, succession is by like right whether the subject of escheat is personal estate or real. Sands v. Lynham, supra. In the light of present-day conditions, we see no reason for the preservation of a distinction, if we assume that there was one at common law, between the title of the state upon the death of aliens without heirs and its title in like circumstances through succession to the rights of citizens. Neither entry...