12 N.Y.S. 741 | N.Y. Sup. Ct. | 1890
Lead Opinion
This is an appeal by the purchaser at a partition sale ordered in the above-entitled action, to be relieved from his purchase. It appears that Alfred Colvill died intestate,'seised of the premises in question, on the 6th of December, 1878, leaving, him surviving, a widow and five children, one of whom was John Colvill. In January, 1881, an action of partition was brought by Euphemia C. Purton against Caroline W. Colvill and others for the partition of the intestate’s real estate. John Colvill was not personally served, nor did he appear in the action, but the summons in reference to him was served by publication, if then living. There appeared upon this motion not only these facts, but also that from 1865 to 1870 he was a man of very intemperate habits, having spells of hard drinking, which increased in frequency
It is not necessary to indulge in any extended researches to ascertain what rules have governed the courts on a kindred question, particularly as in the case of Ferry v. Sampson, 112 N. Y. 415,20 N. E. Rep. 387, the court of appeals has established a rule applicable to the facts and circumstances of this case, and calling upon this court, in the exercise of its discretion, to determine that a good and sufficient title may be given the purchaser notwithstanding a possible doubt as to the existence of John Colvill. It is there said that, although a purchaser on a judicial sale is entitled to a marketable title, that is, a title free from reasonable doubts, and the courts are not disposed'to compel a purchaser to take title where a doubtful question of fact relating to an outstanding right is not concluded by the judgment under which the sale is made, nevertheless the rule is not absolute that a disputable fact not determined by the judgment is in every case a bar to the enforcement of the sale. It depends in some degree on discretion. If the existence of the alleged fact which is supposed to clog the title is a possibility merely, or the alleged outstanding right is a very improbable and remote contingency, which, according to ordinary experience, has no probable basis, the court may compel the purchaser in such a case to complete his purchase, suggesting that the discretion should be carefully and guardedly exercised, and used only where the case is free from reasonable doubt. In that case it was thought that the presumption of the death of Robert White Armstrong, an intestate, without leaving a widow or children surviving, was, upon the facts disclosed,very strong, amounting to scarcely less than certainty; and yet it was a case of his disappearance only, although he had not been out for quite a number of years, and was a man in good health. Here it appears that John Colvill was in wretched health, and who, for a series of years, had been industriously engaged in destroying it by excesses; who had declared himself to be so controlled by his habit of excessive drinking that he could not stop it; and who hoped that he would die in one of his so-called sprees. There is very little doubt that his wish in that respect was gratified, and that shortly after he was last seen he paid the penalty of his unfortunate and destructive habit. For these reasons it is thought the order appealed from was properly made, and that the purchaser should be required to complete his purchase. Ordered accordingly.
Daniels, J., concurs.
Dissenting Opinion
(dissenting.) T cannot concur, I do not think that a purchaser should be required to take the risk of establishing the facts upon which the decision of this motion is founded, and which depend upon the evidence of witnesses which may not always be at his command. I therefore dissent.