Norwegian Evangelical Free Church v. Milhauser

• Decision Date: 19 November 1929
• Parties: NORWEGIAN EVANGELICAL FREE CHURCH v. MILHAUSER.
• Court: New York Court of Appeals Court of Appeals

252 N.Y. 186

169 N.E. 134

NORWEGIAN EVANGELICAL FREE CHURCH

v.MILHAUSER. ^*

Court of Appeals of New York.

Nov. 19, 1929.

Action by the Norwegian Evangelical Free Church against Michael Milhauser. Judgment of the Special Term for defendant (128 Misc. Rep. 239,218 N. Y. S. 291) was reversed on the law and facts, and judgment directed for plaintiff by the Appellate Division (224 App. Div. 756, 230 N. Y. S. 293), and defendant appeals.

Judgment of Appellate Division reversed, and that of the Special Term affirmed.

Appeal from Supreme Court, Appellate Division, Second Department.

John J. McManus, of Albany, for appellant.

Milton M. Eisenberg and Rosalie Ulrich, both of Brooklyn, for respondent.

CARDOZO, C. J.

The action is by a vendee to recover his down payment and expenses on the ground that the vendor is unable to tender a marketable title.

William A. Kinnilly died seized of this property in April, 1868. He was born in England, and there is no evidence that he had ceased to be an alien at the time of his death. His will devised his residuary estate, including the land in suit, to trustees for charitable uses. By a judgment of the Supreme Court, entered in December, 1870, the trusts were declared void; there was a declaration that the testator, according to the evidence then appearing, had not left any heirs capable of inheriting his estate; and this was followed by an adjudication that title to the property had passed to the people of the state of New York, ‘subject to the claims and rights of any lawful heirs or next of kin of said deceased who may be hereafter discovered or appear.’ A receiver was appointed to collect the rents and profits until the executors had accounted. At the close of the accounting there was a decree discharging the receiver, and directing the delivery of possession to the commissioners of the land office, or their authorized agent, as the representatives of the state, and possession was so delivered in December, 1873.

In the suit to determine the validity of the charitable trusts, it was shown that by advertisement and otherwise the executors had made diligent inquiry for heirs and next of kin, and that numerous persons had submitted claims. These claims were litigated by proceedings at the foot of the decree and adjudged to be without foundation. In 1882 the same claimants and others were permitted to reopen the proceedings; and thereafter, in 1892, judgmentwas entered dismissing their several claims, and adjudging once again that the title was in the state. Other proceedings begun about the same time, and afterwards (cf. Aalholm v. People, 211 N. Y. 406, 105 N. E. 647, L. R. A. 1915D, 215, Ann. Cas. 1915C, 1039) were litigated with the same result.

In January, 1911, by letters patent duly executed, the commissioners of the land office conveyed the interest of the state in the real property in question to Mary F. Milhauser, who in turn conveyed to the defendant. An action was begun by her in 1911 under the provisions of the Torrens Act to register her title, in which the unknown heirs, if any, of William A. Kinnilly were joined as defendants. Real Property Law (Consol. Laws, c. 50), art. 12. In that action, one Mary Byrne, formerly Mary Kinneally, appeared by attorney in August, 1911, and claimed to be an heir, though in the earlier litigation the claim of Mary Kinneally had been considered and dismissed. The Torrens suit was allowed to lapse, and an order discontinuing it was entered in 1925, but without notice to Mary Byrne, who could not be found, and whose attorney was then dead.

The contract of sale between the plaintiff as vendee and the defendant Milhauser as vendor was made in October, 1923. The trial judge by a decision in December, 1926, held the title to be marketable, and dismissed the complant. The Appellate Division reversed and gave judgment for the plaintiff.

Sixty-one years and more have passed since the death of William A. Kinnilly in April, 1868. No heirs have yet been found. Such claimants as have appeared, with the possible exception of Mary Byrne, have been found to be impostors. The record now before us is too fragmentary to enable us to say with certainty that the judgment is conclusive upon all of them within the doctrine of res judicata. Even so, the many years that have passed without revival of the claims, the long and unbroken silence and acquiescence, have cut the heart out of the possibility of renewal, and robbed it of its reality as a menace to the peace and quiet of a purchaser. The claim of Mary Byrne, who was formerly Mary Kinneally, is indeed of later date, but even she has slept upon her rights since 1911, when she served her answer in the suit to register the title. Identity of name, moreover, raises a presumption that she is the same Mary Kinneally who asserted her kinship nearly 40 years ago, and was then barred from the share that she was claiming as her own.

We think the chance that there is a lawful heir of William A. Kinnilly capable of inheriting under the law governing inheritance as it stood in 1868 and capable to-day of making proof of his kinship, has become after all these years and all these repeated inquisitions a mere possibility, which ought no longer to impose a cloud upon the title. The law assures to a buyer a title free from reasonable doubt, but not from every doubt....