Toole v. Toole

• Decision Date: 31 January 1889
• Citation: 19 N.E. 682,112 N.Y. 333
• Parties: TOOLE v. TOOLE.
• Court: New York Supreme Court

112 N.Y. 333

19 N.E. 682

TOOLE

v.TOOLE.

Supreme Court, New York County, New York.

January, 1889.

Appeal from an order of the general term of the first department which affirmed an order of the special term refusing to relieve a purchaser at a referee's sale in partition; and also from an order of reference directed by the general term of the first department for the purpose of ascertaining whether the omission to make certain persons parties was proper.

This proceeding was commenced by David M. Koehler, a purchaser at a referee's sale in partition, whose petition prayed that he might be relieved from his purchase; that the referee be directed to return to him the sum paid at the sale; and that the referee and the parties liable be required to pay him the expenses incurred for examination of the title.

The partition suit was brought by Andrew Toole against James Toole and others for the partition of lands, of which Mary Ann Hanley died seized and intestate, and a sale therein was had at which the petitioner, Koehler, became the purchaser. Before completing his purchase, Koehler petitioned to be relieved therefrom on the ground of the omission to bring in as parties to the partition suit certain next of kin of Mary Ann Hanley, deceased; which application was denied.

An appeal was then taken to the general term from the denial of the petition and the following opinion was there rendered:

VAN BRUNT, P. J.

The objections to the title herein relate, first, to the fact that certain persons, who might have an interest in the real estate sought to be partitioned, were not made parties to the action; and, secondly, to alleged irregularities in the proceedings as to the ascertainment of liens.

In view of the fact that any one of the parties, if they had become residents of the United States, and filed their declarations of an intention to become citizens, might have had an interest in this property, it does not seem that the simple affidavit of the plaintiff in the action, positive as it is, should be sufficient in order to place the purchaser in that position of security as to the alienage of the persons not made parties to the action, to which he is entitled, in order that the title which he is to be required to take should be free from doubt.

In the first place, the affiant is the plaintiff in the action; and in the second, how he knew the facts to which he was deposing is not stated in the affidavit.

It is true that the counsel for the respondent alleges upon the argument that more ample proof upon this point exists, but it does not appear upon this record, and it is not before the court upon this appeal.

It would, therefore, seem proper that an opportunity should be given to the respondent to furnish this additional evidence, and that the purchaser might have the benefit thereof.

There should, therefore, be an order of reference to take the proof, which may be offered by either of the parties, upon the question of alienage of the parties, not made defendants, to a referee to report such proof with his opinion thereon.

The objection as to the failure to advertise for liens pursuant to the provisions of the Code is not fatal to the regularity of the judgment. None of the parties to the action are objecting, and there is no proof that there were any liens or rights of creditors which have in any way been affected by the failure to advertise for liens, as prescribed by the Code. The court had a right to waive those conditions, and did so in the final judgment which was subsequently entered.

It is urged that this was not a compliance with the requirements of the Code, but as the court might, at any stage of the proceedings, make an order, nunc pro tunc, amending the order of reference, there seems to be no sufficient reason for concluding that the subsequent waiver of the condition would not be equally effective.

Although it appears that the purchaser has made all the necessary searches, it does not appear that there are any liens which in any way affect the title of the purchaser, which could possibly have been brought forward in answer to the advertisement had it been published.

We think, therefore, that an order of reference should be entered as above suggested, and upon the coming in of the report thereon a final order can be made.

DANIELS and BRADY, JJ., concurred.

A reference in accordance with this opinion was then had and Koehler appeared at the reference by attorney, subject to the right to appeal from the order of reference when the final order was made upon the appeal in which the present order of reference was made; and also under protest, without waiving objections, to his right to be relieved, if it was found that the judgment, as originally rendered, was defective, or based upon insufficient evidence.

The referee reported in favor of the confirmation of the title and the denial of the purchaser's prayer to be relieved from his purchase, and upon the coming in of this report the general term confirmed it, and directed Koehler to complete his purchase within ten days. No opinion was filed by the general term on the motion to confirm the referee's report.

From the orders of the general term the purchaser, Koehler, appealed to the court of appeals.

Benno Loewy, for the appellant.

Lewis Johnston ( Johnston & Tilton, attorneys), for the respondent.

GRAY, J.

It is well settled by the decisions that a purchaser at a judicial sale should not be compelled by the courts to accept a doubtful title. Where irregularities or defects exist in the proceedings, which require further or other proceedings in order to cure them, the objection of an intending purchaser, based upon their existence, should not be overruled and his contract of purchase be directed to be completed. His contract called for a good title, and if it was bad, or doubtful, he should, on his application, be relieved from completing the purchase. In these partition proceedings the absence of parties was shown who were of the same blood and kinship with the next of kin of Mary Ann Hanley, deceased, whose estate was the subject of partition. If they were incapacitated by reason of alienage from having an interest in the property to be partitioned or sold, that was a fact possible of being conclusively established, by bringing them into the proceeding and trying out the question of their alienage by due process of law. A judgment obtained as the result of such an action would set at rest forever any existing or possible claims. The proceeding is one in rem; the subject being the partition of the real estate, or the distribution of the proceeds of the sale.

The general term concede, in their opinion, that the purchaser, at the judicial sale in question, was not offered a title free from doubt, and that concession seems fatal to their order, by which he is directed to complete his purchase. We agree with that court that the proof, in the record of the partition proceedings, which discloses the existence of other persons, not made parties to the action, who might have an interest, did not sufficiently, or conclusively, as against them, establish the incapacity of those persons as aliens to have or acquire such an interest.

The court should have granted the application of the appellant to be relieved from his contract, instead of ordering a further continuance of the proceedings in the action, by a reference to take proof upon the capacity or incapacity of the absent parties to take and hold the real estate by reason of their alleged alienage. The burden of establishing the fact of alienage and of incapacity was upon the plaintiff in partition, and not upon the purchaser. He had the right to assume that the decree, and sale thereunder, conferred not merely a good legal title, but a title not open to further question or reasonable dispute by other persons who stood in the same degree of kinship to the deceased. By the terms of his contract, he was entitled to a deed on a day fixed, and he was then ready to perform. That he was right in his objection to the title at that time, the general term acknowledged, and that being the case, they should not have changed his contract and hold him to be bound to performance indefinitely, or pending further proceedings to perfect title.

The sale was in June, 1887, and the deed should have been delivered in July following. In January following, the general term ordered the further continuance of the proceedings before a referee, and then, in the following May or June, after a delay of nearly a year, ordered the purchaser to complete his purchase. There is an absence of any proof as to any damage occasioned by the delay, and it is unnecessary, if not improper, to indulge in presumptions as to the existence of any. We rest our decision upon the ground that, for reasons we have given, the title offered was not one free from doubt and was fairly open to the objection made.

The orders of the general and special terms should be reversed, and Koehler, this appellant, be relieved from his purchase and repaid his deposit upon the sale with interest thereon from July 3rd, 1887, and all his proper and reasonable expenses in examining the title, with costs herein at special and general terms and in this court.

All concur.

NOTE ON DOUBTFUL TITLES.

Among the questions which embarrass one in passing on a title, few are more frequent or serious, in the present state of the law, than those which arise on a doubt as to facts not of record, or which to use the old phrase, rest in pais.

The court of appeals have very recently held that the same test as to sufficiency of title is to be applied, at least in some classes of legal actions between vendor and purchaser, as has always been applied in suit for specific performance in equity (case 55 and also case 70). This removes a supposed anomaly in the law, which, ever since the general modification of the rules of law by the merger with equity, has ceased to have the support of...