108 N.Y.S. 350 | N.Y. App. Div. | 1908
This is a controversy submitted. The plaintiff agreed to convey to defendant certain premises in the borough of Brooklyn, by warranty deed of full covenants, free of incumbrances save a mortgage. .The defendant objects to the title, which was derived through a tax sale for arrears, pursuant to chapter 863 of the Laws of 1873, as amended by chapter 405 of the Laws of 1885.
• There are two objections. First, it is contended" that the tax sale was defective in that notice of sale was not given to the owner or to those who under him had the right of redemption from the sale. Section 7 of title 8 of the said statute (as amd. supra) provides that “Any person or persons having an estate in or any mortgagee of any of the lands and premises sold in pursuance of the fifth section of this title, whose estate or lien appeal's of record in the county of Kings, may, at any time before the expiration of one year after notice shall have been given to him of such sale, by-the purchaser or his assigns in the manner hereinafter provided, or before a deed of said premises shall have been delivered as provided in section six of this title, redeem said lands and premises by paying to the registrar of arrears for the use of the purchaser” certain specified sums. The same section provides that such notice shall be in writing, and further provides for the details of the service thereof. There is a further provision that “ When any person entitled to redeem or to have.
At the time of the said tax sale the fee of the premises was vested in Francesco Augero, who held the same free and clear of all incumbrances, except the taxes for which the said land was sold. On January 5, 1887, the registrar of arrears sold the premises in question at public auction to Walter E. Parfitt and Henry Parfitt, the highest bidders. On October 3, 1887, the county judge of Kings county, upon proof by affidavit, which by him was declared satisfactory, that proper and diligent efforts had been made to serve an annexed notice upon Francesco Augero, his heirs or devisees, and that his and their place or places of residence and the names of said heirs or devisees could not be ascertained, made an order which directed the service of said notice by publication, which, in accordance with the terms of that order, was directed to “Francesco Augero and to his heirs, or devisees if he is dead.” The certified copies of the affidavits of publication as required by the express terms of the statute were duly filed in the office of the registrar of arrears. The point of the first objection made by the defendant is that the notice of sale as published to Francesco Augero and his heirs or devisees if .he is dead, did not give notice- to all persons entitled to receive notice. It is contended that his wife and his legal representatives are not designated in any way, and hence they never received even constructive notice; and not having received any notice, their title was never divested. The burden of proof of proving the unmarketability of the title rests upon the objector (Greenblatt v. Hermann, 144 N. Y. 13; Ruff v. Gerhardt, 73 App. Div. 245), and the materiality of the objection is a question of fact to be drawn from all the circumstances. (McPherson v. Schade, 149 N. Y. 16.) The only person entitled under the statute to redeem .this property from the tax sale was one having an estate in, or any mortgagee of any of the lands and premises. It is agreed that at the time of the sale the fee of the premises was vested in Francesco Augero. The presumption of his life contin-. ued. (People ex rel. Miller v. Ryder, 124 N. Y. 500, 504.) There is no suggestion in any of the papers submitted on the application for'the order of publication that Augero was dead.. There
■ The second objection arises from .the following circumstances: One of the purchasers at the tax sale died on June 1, 1888, leaving a will which was' duly admitted to probate. The will devises and. bequeaths all of the estate of the testator, real and personal, to his wife, Emeline Parfitt absolutely. The deed made by the registrar of arrears, pursuant to the statute, was to Walter E. Parfitt, one of the purchasers, and to Emeline Parfitt, devisee of Henry Parfitt, deceased. There is no question but that at the time tliat Parfitt died all the interest in the premises acquired by him, by virtue of the tax sale and the proceedings therein Avas in him exclusively. But Emeline Parfitt was not the executor nominated in the last will and testament of Henry Parfitt. The point made is that inasmuch as section 6 of title 8 of the said statute provides that the registrar of arrears shall execute and deliver tl,ie deed “ to the purchaser on such sale, his legal representatives or assigns,” m order "to divest the record owner the registrar must conform to this provision ; that he had no power to give a deed to any one else, and that Emeline Parfitt does not fall within the descriptive term “ purchaser * * * legal representatives or assigns.” I think that there is no force in tins objection, but that the term “ legal representatives” authorized the execution of the deed to Emeline Parfitt. ‘ The term under the' authorities is not necessarily confined to the artificial representatives like executors.or administrators, who represented the deceased in distinction to heirs, but may refer to heirs and devisees as well. (Griswold v. Sawyer, 125 N. Y. 411.) In Lessee of Rice v. White (8
Judgment for the plaintiff, without cdsts.
Woodwakd, Gr ateto e, Píen and Milleb, JJ., concurred.
Judgment for plaintiff on submission of controversy, without costs.