226 A.D. 373 | N.Y. App. Div. | 1929
The question presented by this controversy is as to the marketability of plaintiff’s title to real property contracted by plaintiff, a domestic corporation, to be sold to defendant. The defendant rejected the title offered upon the ground that there was an undivided one-quarter interest in the fee of the contracted premises outstanding in one Walter R. Seitz, a non-resident incompetent person.
Title to the real property in question was originally in one Charles E. Seitz, who died intestate on May 23, 1917, a resident of the county of Richmond, State of New York. At the time of the death of Charles E. Seitz he was the owner in fee of certain parcels of real property situate in the counties of Bronx, Richmond and Suffolk, in this State. Decedent left him surviving a widow, Anna M. Seitz, and four children, namely, Oscar R. Seitz, Charles A. Seitz, Ida C. Seitz, the defendant herein, and Walter R. Seitz, an incompetent person, as his sole heirs at law. The widow of decedent
It was further stipulated by the parties to this controversy that on November 27, 1925, in a proceeding duly instituted in the Guardians Court of the city of Zurich, wherein it was alleged amongst other things that the said Walter R. Seitz was a resident of Zurich, the said Guardians Court adjudged that the said Walter R. Seitz was a resident of Zurich, Switzerland; that he was suffering from a mental disease known as catatonic form of dementia pmecox, and in consequence of such serious mental defect was totally incapable of managing his affairs, and appointed Johannes Seitz, a resident of Switzerland, as guardian; and that such adjudication was ratified by the district council of Zurich on December 17, 1927; and that on or about November 10, 1926, the County Court of the county of Richmond, purporting to act pursuant to the provisions of section 1363 of the Civil Practice Act, appointed the said Ida C. Seitz, a resident of the county of Richmond, State of New York, committee of the property of the said Walter R. Seitz within the State of New York; that the said foreign committee of the said Walter R. Seitz concurred in the petition for the appointment of the said Ida C. Seitz by filing an affidavit in which he said “ as his [the incompetent’s] uncle, I should feel that his sister Ida and his brother Charles are the ones that can best care for and administer to Walter’s [the incompetent’s] wants; ” that the said Ida C. Seitz accepted said appointment and duly qualified thereunder; that on or about June 21, 1927, the City Court of the City of New York, county of Richmond, accepted the resignation of the said Ida C. 'Seitz as committee of the said incompetent, and appointed the Guaranty Trust Company of New York committee in her place and stead, and the said Guaranty Trust Company of New York accepted such appointment and duly qualified and has since acted and now is acting pursuant to such appointment; that thereafter, on due notice (prescribed by the court) to all persons interested, the Guaranty Trust Company of New York, as such committee, presented a petition to the Supreme Court, Kings county, for an order authorizing it as such committee to sell the undivided interest of the said incompetent in the said real properties, and further
It is further stipulated that on or about March 27, 1929, plaintiff entered into a contract to sell to defendant a parcel of said real property of which said Charles E. Seitz died seized and possessed, described as follows: “All that lot or parcel of land in the Borough of Bronx of the City of New York in the State of New York and shown and designated on a map entitled ‘ Map of Morris Park situated in the Borough of Bronx of the City of New York ’ Sections 1, 2, 3 and 4 made by Leonard C. L. Smith, City Surveyor, and filed in the office of the Register of New York County on May 28, 1913, under the map numbers 1745, 1746, 1747 and 1748 by the lot numbers 9, 10, 11, 12 and 13 in block number 56, the said lots being also known as lot number 14 in block number 4298 on the tax map of the City of New York, Borough of Bronx.” ”
Thereafter defendant rejected title to said premises on the ground that there was an undivided one-quarter interest in the fee thereof outstanding in the said Walter R. Seitz, and notified the plaintiff in writing that the grounds of defendant’s rejection of title were, first, that the court had no authority under section 1363 of the Civil Practice Act to appoint either the said Ida C. Seitz or the Guaranty Trust Company of New York committee of the property of said Walter R. Seitz, the incompetent, and that under section 1363 of the Civil Practice Act the court could only appoint the foreign committee; that there was no authority in law for the practice adopted on the application for leave to sell the interest of the incompetent and that the entire proceeding was invalid, and that the order entered therein directing the conveyance of the interest of the
It is the contention of defendant that her appointment as committee of the property of the said Walter R. Seitz and the appointment of the Guaranty Trust Company of New York in her place and stead as such committee were illegal, invalid and void and unauthorized under section 1363 of the Civil Practice Act, the defendant contending that the only authority conferred by said section was to appoint the foreign committee to act here.
Upon the stipulated facts the plaintiff demands judgment that the defendant be adjudged to specifically perform her agreement to purchase the' aforesaid premises; while the defendant refuses to perform, claiming that she is entitled to judgment for the return of the sum of $500 paid by her upon the execution of the contract for the purchase of said real property. The controversy, therefore, before us for decision is whether, upon the stipulated facts, the plaintiff is entitled to judgment requiring the defendant to specifically perform her said agreement and to accept the plaintiff’s deed and pay plaintiff the sum of $500, with interest thereon from April 10, 1929, and deliver to plaintiff a purchase-money bond and mortgage for $3,595, as provided in the contract of sale; or whether the defendant is entitled to judgment against plaintiff for the sum of $500, paid on the execution of said agreement, with interest thereon from March 27, 1929. The parties agree that this court shall render such judgment as shall be proper on the aforesaid facts, without costs.
We are of the opinion that the plaintiff is entitled to judgment against the defendant requiring the defendant to specifically perform the contract into which she entered. Prior to the enactment of section 2326 of the Code of Civil Procedure (now section 1363 of the Civil Practice Act) there was no authority in the court to
We are not unmindful of the rule that in all statutory proceedings to divest title there must be a strict compliance with the provisions of the statute, but it seems to us that where there is no claim that the interests of the incompetent would be in anywise affected, the statute should, at least, be liberally construed. Where alone the interests of the incompetent are affected should strict compliance with the statute be required. (Battell v. Torrey, 65 N. Y. 294; Atkins v. Kinnan, 20 Wend. 241; Cole v. Gourlay, 79 N. Y. 527.) This court held in Beaumont Construction Co., Inc., v. Higdon Elevator Co., Inc. (203 App. Div. 819) that title was good where the contract for the sale of the incompetent’s interest was made prior to the entry of the order authorizing such contract. This court, in that case, used the following pertinent language (at p. 825): “ It will thus be seen that it is not every irregularity that will render unmarketable a title acquired through judicial procedure, but only such irregularity which might reasonably affect the rights of the party, the title to whose property is thus sought to be divested.” And again (at p. 826): “ The court is always zealous to require strict adherence to the rules of procedure in a proceeding by which the title of real estate is divested, but the strict adherence required would seem to be as to matters which might possibly affect the interests of the parties whose property is sought to be divested, and not as to matters wherein the irregularity can in no possible aspect have prejudiced the rights of such owner.” In the case before us there is no claim made that the incompetent was in any
Under the stipulated facts the plaintiff should have judgment directing the defendant to specifically perform her contract, and to accept the plaintiff’s deed and pay to plaintiff the sum of $500, with interest thereon from April ] 0, 1929, and deliver to plaintiff a purchase-money bond and mortgage for $3,595 in accordance with the terms of said contract of sale. The judgment to be entered hereon shall be without costs to either party as against the other.
Dowling, P. J., Finch, McAvoy and Proskauer, JJ., concur.
Judgment ordered in favor of plaintiff in accordance with opinion, without costs. Settle order on notice.