Van Williams v. Elias

94 N.Y.S. 611 | N.Y. App. Div. | 1905

Smith, J.:

■ Wesley- D. Hale, as trustee under the will of Leonard Elias, was discharged by decree of the Surrogate’s Court in November, 1904. The action of partition was brought ■ September twenty-sixth' prior thereto. Even though a necessary party at the commencement of the action, his subsequent discharge before the judgment would ■seem to have divested him of all interest in the controversy.

That Beatrice was a necessary party to this action in order to convey a perfect title would seem to me undoubted. William Adam Elias took no title whatever unless he was living upon .the 2d day of August, 1904, at which time he would have become twenty-five years of age. Upon December 11, 1902, he left the State and was never, heard from thereafter. Respondent’s argument rests in part upon the presumption that he is still living. While such may be .the. fair presumption as applied to a man twenty-six years of age, in good health, it is- very far from conclusive. The business in which he proposed to, engage^ that of a lineman in placing wires for the carrying of electricity, is one extremely dangerous... His failure for over- two years to send any, moneys to his wife or little child for their support, or to communicate with them, is unnatural in a -normal man. ‘ The presumption, therefore, that he is still living, or .was living upon the 2d day of August, 19.04, when if living .he would become entitled to a half interest in this property, is not alone sufficiently strong to give security to any title upon a sale in a partition action. If it should afterwards be proven that his death had occurred prior to August 2, 1904, these purchasers would find themselves with title to only. a half interest in the property while Beatrice would hold the other half -interest. No reasonably cautious man would dare to loan moneys either of his. own or of a trust fund upon any such title. It is not free, from reasonable doubt and is not such a title as the law will compel a jmrchaser to accept. In Vought v. Williams (120 N. Y. 253) it appeared that the. premises in question belonged to one R., who died intestate in 1853, leaving a widow and two sons, W. and GL The latter in 1863, when about twenty-two years of age, being unmarried, in poor health, dissipated and not in business, disappeared and has. not been heard of since. In April, 1875, his mother and brother conveyed to plaintiffs’ grantors by a deed which recited that they were the sole heirs at law of R. Held, that the title was not marketable and defendant could not be compelled to complete his purchase. Brown, J., in writing for the Court, says: “ A marketable title is one that is free from reasonable doubt. There is reasonable doubt when there is uncertainty as to some fact appearing in the course of its deduction-, and the doubt must be such as affects the value of the land or will interfere with its sale. A purchaser is not to be compelled to take property the possession of which he may be compelled to defend by litigation. He should have a title that will enable him to hold his land in peace, and, if lie wishes to sell it, be reasonably sure that ho flaw or doubt .will arise to disturb its market value. (Citing authorities.) ‘ If a title depends upon a fact which is not capable of satisfactory proof, a purchaser cannot be compelled to take it.’”. (Citing Shriver v. Shriver, 86 N. Y. 575.) In that case it was held that the presumption of death arising from the absence of -twenty-four years was hot sufficient upon which to create a marketable title. Respondent relies upon this authority as showing the strength of the presumption that William Adam Elias is alive. I read in the case, however, no support for the respondent’s claim. The principle seems-to be there established that a title is not fairly marketable whicffi rests merely upon a presumption unless such presumption rests so firmly upon facts that-practically no doubt whatever exists as to the existence of the fact presumed. Respondent argues that if this rule be held so strictly few titles could be found marketable because in many cases parties are absent and cannot be found and service of the summons must be made by publication. In those cases, however, the sale is good and the title marketable because the proceeds' of the sale are placed with the county treasurer, subject to the order of the defendant so served, or of his personal representatives. This provision of law found in section 158-2 of the Code of Civil Procedure is further urged in support of respondent’s contention that this title is marketable although Beatrice be not properly a party to the action. It will be observed, however, that the moneys are placed in the hands of the county -treasurer subject to the order of William Adam Elias, or his representatives. They could not be .-reached by Beatrice Elias even upon proof that her father died before lie became twenty-five years of age. Moreover, there appear judgments in this action in large amounts against William Adam Elias which must be paid from this deposit with the county treasurer unless proof can forthwith be found that he died before the. 2d day of August, 1904. It will be seen, therefore, that this section of the Code of Civil Procedure gives no protection whatever to Beatrice Elias in case it should afterwards appear that her father had died before reaching the age of twenty-five years.

This plaintiff is not remediless. She could have brought this aetioh alleging the doubt in this title and making William Adam Elias and Beatrice Elias both parties to the action. In such case the sale Would undoubtedly be free from the claims of either one. The judgment itself would be a bar to all claims by both against the property, and a good title could be given upon a sale in such an action. Or, if Beatrice Elias is properly made a party defendant in this action, she is bound by the judgment and the title is undoubtedly good. This brings us to the further question in the case, whether Beatrice was properly made a party defendant so as to be bound by the judgment herein.''

By section 471 of the Code' of Civil Procedure it is provided that an infant defendant must also appear by guardian who must be appointed upon the application of the infant, if the infant be fourteen years or upwards, and applies within twenty days after personal service of the summons, or after service thereof is complete, as prescribed in section 441 of said Code, or if he is under that age or neglects so to apply, upon the application of any other party to the action or of a relative or friend of the infant. By section 452 of the Code of Civil Procedure it is provided: “ Where a person not a party to the action has an interest in the subject thereof or in real property, the title to which may in any manner be affected by the judgment, * * * and makes ajDplication to the court to be made a party, it must direct him to be brought in by the proper amendment.” Section 453 of said Code provides that where the court directs a new defendant to be brought in mid the order is not made upon his own applicaUon, a supplemental summons must be issued directed to him, and in the same form as an original summons, except as changes may be necessary therein. No summons was at any time served upon this infant. The appointment of this guardian ad litem cannot be sustained as an appointment for an infant defendant under section 471 of the Code of Civil Procedure. Such an appointment it would seem could only be made after service of the summons upon the infant. (See Ingersoll v. Mangam, 84 N. Y. 625.)

It is claimed, however, that this rule cannot apply where an application is made by the infant itself under section 452, above referred to. Counsel for the appellant, however, insists that if Beatrice had been made a party defendant under this section the summons must still have been served upon her under section 453 of the Code of Civil Procedure because she was not so made a party upon her own application but upon the application of Mabel Elias acting as her next friend. Whether or not there be any force in this claim, we are of the opinion that the petition for the appointment of the guardian does not bring the application within the conditions of section 452 of the Code of Civil Procedure." That section authorizes the application to be made by a person who “has an interest in the subject thereof or in real property, the title to which may in any manner be. affected by the judgment.” The petition for the appointment of a guardian for Beatrice does not show the existence of any interest in this real property. It shows simply a possibility of an interest in this property. Moreover, no interest which she may have in the property could be affected by a judgment in an action to which she was not a. party. It would seem, therefore, that the conditions did not exist giving her the right to intervene in the action under this section. As against an infant the Code provisions will be construed strictly, and if she has not a legal interest in the property, and so has not been properly brought in, she will not be held hereafter to be bound by this judgment. It must at least be said that there is grave doubt as to whether her friend in making application for the appointment of the guardian has shown facts to bring her within the conditions named in this section.

• . But there is another defect in these papers for the appointment of this guardian. Whether a guardian be appointed for an infant plaintiff or an infant defendant the law requires, if the application be made by some person other than the infant, that notice shall be given to his general or testamentary guardian, or, if he has none, to the person with whom the infant resides. There is no recital in the Order appointing the guardian of notice having been given to any one. Nor is there kuy .allegation in the petition showing whether the infant had ¡any general or testamentary guardian, or with-whom the said infant, resides. It may be claimed that because the iiiíant was only between two and three years of age she would be presumed to be li ving with her mother .who makes the application- for the -appointment. Such .presumption .cannot he indulged iii fdr the purpose of Sustaining this order to make valid this title and forever -bar the infant from all right to question the saíne. With .the mother • left penniless tire infant niight 'we'll be liesiding with 'stime other person to -whom, the law would'require, notice before the guardián ad litem -could be appointed, especially where, as in -this case; the interest of this mother is to an extent .antagonistic to the interest of this infant -daughter.. The courts would not, in my judgment, hold this infant bound by a judgment in which the order appointing the guardian ad litem did -not sho-w the necessary notice which .would authorize the granting of such-order and in which the facts showing upon whom'proper' service .should he made did not appear -in the petition of a relative or friend for such appointment. ■ .

0-ur •conclusion is that this title -is. not free from-doubt and thejiurchasers should not be compelled to accept the same., The -order of the -Special Term -should ¡be reversed, with ten. dollars -costs and disbursements,, and ¡the motion granted, and the-matter remitted to Special Term .to determine what costs and expenses, .should be allowed the purchasers in ‘addition to the -repayment of' the deposit made upon the purchase.

All concurred; Chase, J., in result.

Order- reversed, with ten dollars costs and disbursements, ¡and motion .granted a'nd matter remitted, -to the Special Term to determine what costs and expenses should be allowed to the purchaser in addition to the repayment of the deposit made upon -the purchase.