73 N.Y.S. 364 | N.Y. App. Div. | 1901
Lead Opinion
This action was brought for the foreclosure of a mortgage upon certain real estate in the city of Hew York. It proceeded to judgment, and in pursuance thereof, on the 22d of August, 1901, the premises were sold at public auction to one Bendheim, who then paid ten per cent of the purchase money and signed terms of sale,
The referee had the power to grant the adjournment. He was an officer of the court and as such could grant a reasonable adjournment, if, in the exercise of his judgment,, he deemed it advisable for the protection of the. rights of any of the parties to the .action. (Angel v. Clark, 21 App. Div. 339.) It was lfis duty to see that the sale was fairly conducted and the rights of all parties to it pro
I am, however, of the opinion that the order must be affirmed for the reason that the referee could not give to the purchaser a marketable title. There was, at the time the motion was made, an outstanding dower interest in the widow of the mortgagor. It is not questioned but what the first objection made to the title was, when the objection was made, and on the twenty-fifth, the date to which the proceeding had been adjourned, a good one; that Helen M. Cain was the widow of Michael Cain, deceased, who was the maker of the mortgage foreclosed in the action; she did not sign the mortgage and had never released her dower interest in the premises covered by it. Mor is it questioned that she had, in fact, brought an action which was at that time pending in the Supreme Court to enforce her dower rights. But it is urged by the appellant that he had, at the time of the hearing of the motion, procured a release of her interest and a consent to the discontinuance of her action. He did not have this release on the twenty-fifth of September, and he did not procure it until several days thereafter, and this was not a release, but an assignment of her dower interest to one Bright, who, according to the papers used upon the motion, then held that interest. ■ It is true that Bright says he is ready and willing to deliver “ to the assignee of the purchaser of the mortgaged premises at the referee’s sale, or to any one whom he may name, a release in due form of law of the dower of the said Helen M. Cain in the premises affected by this action so assigned to me,” but so far as appears an assignment of this interest has never been tendered to Cohn.
I am also of the opinion that under the facts set out in this record the failure to make James Hagan and Rose Flood as trustees under the will of Michael Cain, deceased, parties defendant was an irregularity in the proceedings which rendered the title unmarketable, or at least cast such doubt upon it that a reasonable man acting under the same, or similar circumstances, would hesitate to take it. It is suggested, not by counsel, that there is no proof in the record that James Hagan and Rose Flood are trustees under the will of Michael Cain, or if so, that they have any interest in the premises. I do not
These allegations as to the existence of the will and the legal effect of it, taken in connection with the omission to deny the same, and the admission of the proceedings for the probate of the will, sufficiently establish not only the existence of the will, but the fact that the executors named therein have an interest in the real estate, and' as such should have been made parties defendant to the action. The title tendered certainly cannot be said to be reasonably free from doubt within the rule laid down in Heller v. Cohen (154 N. Y. 299).
On both grounds, therefore, I am of the opinion that the order is right and should be affirmed, with ten dollars costs and disbursements.
Van Brunt, P. J., O’Brien and Ingraham, JJ., concurred; Hatch, J., dissented.
Dissenting Opinion
I concur in the prevailing opinion so far as it holds that the referee was authorized to adjourn the sale, and agree with the reasons assigned for such holding.
I am, however, unable to concur in the prevailing opinion so far as it holds that the facts which appear in this record were sufficient to relieve the purchaser from the fulfillment .of his contract to purchase. The adjournments which had been had prior to the eighteen th day of September were by consent of the parties and to enable the plaintiff to perfect title to the premises or to procure a policy of insurance, insuring the same. By agreeing to accept a policy of title insurance and allowing, the plaintiff to go, to the trouble and expense of procuring one, and negotiating for another when further objection to the title was made, the purchaser waived his,right to a strict performance of the contract of purchase, and of his right to
Concerning the objection that by'the will of Cain the equity of redemption was in certain trustees named therein, iiot made' parties to the action, it devolved upon the purchaser to prove facts sufficient from which the legal conclusion could be reached that' the title was invalid on this account. He was bound to show facts, from which it would appear that a substantial defect in the title existed. (Platt v. Finch, 60 App. Div. 312; Goodwill v. Crooks, 58 id. 464;
It seems to me that this proof amounts to no more than a mere assertion, and fails of showing that there was, in' fact, any will of Michael Cain. The will itself is not produced. It is not shown that Cain, in fact, ever signed any will, or that it was executed as required by law. The record is not produced, nor is any quotation made from the will or statement of any kind from which the court can see that there was a valid will executed by Michael Cain.
The mere assertion of the existence of such a document does not establish it, nor is it sufficient from which the court could draw' an inference, either as matter of fact .or as conclusion of law that there was a will affecting the title to the property. It may be conceded that a paper had been filed for probate in the Surrogate’s Court, but no further proceedings had been taken thereunder, and the testator had been dead for nearly a year and a half, and further testimony tends to show that if any steps were contemplated to have been taken thereunder they have been abandoned. If force is to be given to the rule of law which requires that the purchaser shall specify the defect and sustain it by proof, it would seem that he has failed, so far as is disclosed by the present record.
In addition to this, it appears that the executors, who, the affidavit of Cohn states, were the trustees, were in fact made parties by name and were served by proper publication of the summons as unknown persons, as provided by section 438, subd. 1, of the Code of Civil Procedure.
The designation of the executors was sufficient to constitute them proper parties, even though they occupied the dual relation of executors and trustees (Knox v. Met. El. R. Co,, 58 Hun, 517); and service in this manner was authorized. (Abbott v. Curran, 98 N. Y. 665; Moran, v. Conoma, 27 J. & S. 101.)
The order should, therefore, be reversed, with ten dollars costs and- disbursements, and the motion denied, with ten dollars costs, and the purchaser directed to complete his purchase.
Order affirmed, with ten dollars costs and disbursements.