102 N.Y.S. 732 | N.Y. App. Div. | 1907
Lead Opinion
The questions presented on this appeal are stated in the opinion of Mr. Justice Laughlin. There is one ground upon which I do not agree with him.
The conveyance of the referee on the sale 'under the judgment in the foreclosure action is the foundation of the title; in that action no defendant, as representing the - heirs at law of the mortgagor, was made a party, it being alleged that the mortgagor died owning the equity of redemption in the property without heirs at law, which it may be assumed meant without heirs at law capable of
T agree with Mr. Justice Laughliñ that the facts would justify a finding that the mortgagor and owner of the equity, of redemption died without heirs at law capable of inheriting, and that, therefore, at his death the title to the property vested by escheat in the State. The question, then, is whether the title of the State was affected by . the sale Under the judgment of foreclosure. The People of the State were not a party to the foreclosure action, and it always has been a settled rule of law that a sovereign State could not be sued in its own courts without its consent. This questioh is discussed by Mr. Justice: Mitchell in Kiersted v. People (1 Abb. Pr. 385), and the rule, as I understand it, is there stated. He quotes from Brohsoñ, J., 'in Delafield v. State of Illinois (2 Hill, 159), that “ where a State is made defendant the State courts cannot exercise jurisdiction.” It seems to me clear that if the courts of the State could acquire no - jurisdiction as against the State to affect its title to real property, making the Attorney-General of the State a party defendant in actions affecting real property, could give the coui;t no jurisdiction to sell the property of the State under a, judgment in that action. Hpon the assumption that the property escheated to the State, the State became the owner of the equity .of redemption, and to sustain the title.offered to the purchaser we must hold that the deed by the referee under the judgment of foreclosure conveyed the equity of redemption which had become vested in the State. If- the court had no jurisdiction over the State, in whom the title to the property had vested, it certainly could not sell the interest of the State in the property under a judgment in an action to- -which the State was not a party (2 R. S. 192, § 158; 3 R. S. [5th ed.] 273, § 88 [158]; 3 R. S. [6th ed.] 199, § 102 [158] ; revised in Code'Oiv. Proc. § 1632); and as the Statute of Limitations has not run against the State, I do not see hoW we can say that the interest of the State has been divested by the sale under this judgment.
I do not think we can declare in this action, to which the State is not a party, that the title of the State to this property has been divested by the sale under the foreclosure suit, and, therefore, I think the title is not marketable.
The order should, therefore, be affirmed, with ten dollars costs- and disbursements.
Clarke and Scott, JJ., concurred; Laüghlin, J.,- dissented.'
Dissenting Opinion
The premises in question are known as Nos. 657 and 659 East One Hundred and Fifty-first street, borough of The Bronx, city of New York, and consist of a parcel fifty feet in width by one hundred and fourteen feet in depth, on the northerly side of the street, commencing twenty feet easterly from Melrose avenue. In 1860 the easterly twenty-five feet were owned in fee simple absolute by William Bower, who on the twenty-first day of March, that year, duly mortgaged the. same, his wife joining in the mortgage. The mortgage by mesne assignments came tomne Herbert J. McDonald, who in. the month of November,. 1871, brought an action .in the
The defects in the title claimed by the purchaser were that the equity of redemption which was in the heirs of the mortgagor, or the people of the State was not foreclosed, owing to the failure of the plaintiff to make unknown heirs of the mortgagor (Code Proc. § 135, as amd. by Laws of 1860, chap. 459, § 4) or the people of the State parties defendant. The purchaser in claiming that the heirs of the mortgagor should have been made parties defendant, relies upon the rule that it is presumed that no man dies without heirs. (22 Am. & Eng. Ency. of Law [2d ed.], 1291, and cases cited; Ettenheimer v. Heffernan, 66 Barb. 374; Bradley v. Dwight, 62 How. Pr. 300; Pitkin v. New York & New England R. R. Co., 64 Conn. 482; Harvey v. Thornton, 14 Ill. 217; Lawson Presump. Ev. [2d. ed.] 249; Bell v. Hall, 76 Ala. 546; John, Admr., v. Hunt, 1 Blackf. [Ind.] 324.) The appellant, however, contends that such presumption is overcome by the allegations of the complaint in the foreclosure action, which were not controverted, and, therefore, stands as if determined by the court upon the trial of an issue. If it had been alleged that he left only one heir who was made a defendant and defaulted, surely it would not be necessary to prove the allegations by calling witnesses, and the burden would be on the purchaser of showing other heirs. It would seem, unless it is impossible that a person could die without heirs at law, capable of inheriting his realty, that this allegation of the fact would be controlling, at least in the absence of some evidence of the existence of heirs. It is manifest that there may have been blood relations and yet not heirs at law capable of inheriting the land. The allegations of the complaint should be construed as meaning that he left no heir capable of inheriting for that is the sense in which the term is used in the
In Bradley v. Dwight (supra) which was an action to redeem, the plaintiff claimed through the People by release from the Legislature of their title by escheat. The defendant claimed title under foreclosure wherein it was alleged that the owner of the equity of redemption died seized of the premises, intestate, unmarried and without issue, leaving him surviving a father, an alien who also died without issue. The People of the State were not made a party defendant, either directly or indirectly. The defendant and his grantees had been in possession under the deed in foreclosure. A demurrer to the complaint was sustained upon the ground that it did not affirmatively appear that the owner died without heirs having legal capacity to take as he might have had brothers or sisters. But inasmuch as there was no allegation in the complaint in foreclosure in that case that the owner of the equity of redemption died without heirs, it is not an authority on the point now under consideration.
It appears to me that there is no defect in this title disclosed on the face of the record and that it is incumbent on the purchaser to show that there were heirs. (See Greenblatt v. Hermann, 144 N. Y. 13; Wheeler v. Scully, 50 id. 667; Moran v. Conoma, 59 N. Y. Super. Ct. 101; affd., 128 N. Y. 591; Hagan v. Drucker, 90 App. Div. 28; Lenehan v. College of St. Francis Xavier, 51 id. 535 ; Goodwin v. Crooks, 33 Misc. Rep. 39; affd., 58 App. Div. 464; Matter of Sullivan, 51 Hun, 378; Barson v. Mulligan, 66 App. Div. 493.) The judgment in partition under which the premises have been sold establishes presumptively that the title .offered for sale is in the parties to the action of which
Moreover, I am of opinion that, upon this branch of the case, the . title is good by lapse of time. It is-, to be. borne in mind that the only right in the mortgagor! or in his heirs, if he left 'any, was a right of redemption' after the mortgagee or .those who becamé sub- - rogatéd to his rights under the mortgage by the judgment in foreclosure came into possession of the premises. (Lunny v. McClellan, 116 App. Div. 473.) The Statute of Limitations- against such an action is ten years after possession is taken by the mortgagee or his successor in interest. (Hubbell v. Sibley, 50 N. Y. 468.) It is likely that the purchaser went into possession immediately, but in any event it appears that the father, of the plaintiff aind -husband of the purchaser was in Undisturbed possésSion by virtue of the title derived from the foreclosure of the mortgage for. a period of abou-t twenty-tive years. If any heirs were living the statute would- have been against them whether adults or infants. It' is' a reasonable inference that the purchaser on the- foreclosure took possession of the premises, for we find his successor in interest in possession in 1880. If .the- heirs Were of age at the time, the -purchaser under the decree in foreclosure went into possession, the Statute of Limitations commenced to run at once and would not be suspended by a. subsequent devolution . of title to -infants. (Jackson v. Robins, 15 Johns. 169 ; Ottinger v. Strasburger, 33 Hun, 466; affd., 102 N. Y. 692; Fleming v. Griswold, 3 Hill, 85 ; Swearingen v. Robertson, 39 Wis. 462; Becker v. Van Valkenburgh, 29 Barb. 319.) If the heir was then an infant just born, the running of the . Statute of Limitations would be complete after the lapse of thirty-óne years¿ There .may be no presumption that the heirs were -adults, but there-is a presumption that they were not insane or under other-disability which is not a normal condition. There’ is. little hardship in this' .particular case in giving weight to the defense of the Statute of
According to the allegations of the complaint in the foreclosure action the title had escheated to the People of the State. If the owner of the equity of redemption died, as is alleged, without heirs, then his title and interest escheated to the State without any action on the part of the People or their representatives. (Johnston v. Spicer, 107 N. Y. 185; Const. 1846, art, 1, § 11; Ettenheimer v. Heffernan, supra.) It is claimed that the People should have been made a party eo nomine. Our attention, however, has not been called to any statute authorizing the plaintiff in a foreclosure action to make the People of the State a party defendant as the owner of the equity of redemption, and of course in the absence of such a statute, the rule is that the People, being the sovereign, may not be sued. It was provided by. statute at that time that the People might be made a party to an action in partition of lands held by the People and by individuals as tenants in common (R. S. [5th ed. vol. 3, p. 620 ; 6th ed. vol. 3, p. 597] pt. 3, chap. 5, tit. 3, §§ 108, 109) and is now so provided- in the Code of Civil Procedure (§ 1594), but in view of the rule prohibiting an action against the sovereign, that would not justify making the People a party to a foreclosure" action. On application for letters of administration in case of intestacy unless it appeared that the deceased left next of kin entitled to his estate, the statute at that time required that a citation should be issued to and served on the Attorney-General who in cases of escheat appeared for the People. (R. S. [vol. 2, p. 76] pt. 2, chap. 6, tit. 2, § 37; Gombault v. Public Admr., 4 Bradf. 226.) This provision is now contained in section 2663 of the Code of Civil Procedure. (See Throop’s Code Civ. Proc. [1880 ed.] § 2663, note and present statute.) Section 2616 of the Code of Civil Procedure which is also partly founded on this provision of the Revised Statutes (Throop’s Code Civ. Proc. § 2616, note and present statute), provides- for issuing a citation to .the Attorney-General, and not directly to the People, in cases of probate of wills relating to real estate, where the heirs of the decedent cannot be ascertained. By amendment to section 1627 of the Code of Civil Procedure, by chap
I am of opinion, therefore, that the title was marketable. I think it falls within the cases holding that where it is possible that a- fact exists which, would affect the title, but that it is. extremely improbable and a remote contingency, the' court may compel a
‘ It follows that the order should be reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.
Order affirmed, with ten dollars costs-and disbursements. Order filed.