
    Mary Ann Recor, Resp’t, v. Charles Blackburn et al., Def’ts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 28, 1893.)
    
    Judicial sale—Aliens.
    One R., an alien, died seised of certain lands, and the state released its interest therein to the widow, subject to the rights of R.’s heirs therein. In an action of partition between the heirs of the widow a sale was ordered, and the referee sold the land subject to the claims of the heirs of R., although such direction was not contained in the decree. There was evidence of the existence of a brother of R. in England. Held, that the release by the state did not give a title as against the heirs of R., and that the title was not a merchantable one which the purchaser would be required to take.
    Appeal by Levi Blumenau, the purchaser at a sale in partition, from an order compelling him to complete his purchase.
    
      Bearns & Brenner, for app’lt; Wm. C. Kellogg, for resp’t.
   Barnard, P. J.

This is an action for partition and sale of lands. The title sold is derived under the will of Jane Richards. She was the wife of James Richards, who died seized of the same in December, 1884 The legislature, by chapter 170. Laws of 1886, released the interest of the state of Mew York in the lands to Jane Richards, the vidow, subject to the rights of the heirs of James Richards therein. The report of the referee finds that James Richards was never made a citizen of the United States and that he left no child or children nor heirs-at-law nor next of kin expept the widow. There is no return of the evidence on which the fact of alienage is found nor any testimony showing what heirs-at-law James Richards left. The decree ordered the premises sold; decided that the devisees of Jane Richards owned the title. The referee sold the land subject to the claim of the heirs of James Richards, although this direction was not contained in the decree. One Levi Blumenau became the purchaser at the sum of $1,800, and he declines to take the title. The papers show no title out of James Richards. The release of the state did not give a title as against the heirs of James Richards. The affidavit of Cahill tends strongly to show that there is a brother of James Richards living in England, who corresponded with his brother up to a period shortly before James Richards’ death. As against this brother the act granting title to the widow is inoperative. The purchaser is entitled to a merchantable title. Fleming v. Burnham, 100 N. Y., 1.

This is not such a title. It is doubtful at least, as it is unproven that James Richards died an alien. It is more than probable that he has a brother living who can inherit under chapter 38, Laws of 1875. The conditions of sale should have no binding effect The wife was directed to sell a good title and the conditions were signed by the purchaser’s son, without understanding its force and effect. He should be relieved if he did not get a good title notwithstanding the conditions of sale. The title is not one which will sell. It demands proof and explanation. The court will not force a poor title on a purchaser who is holding only by a condition of sale unauthorized by the decree in so vital a particular.

The order should be reversed, with costs and disbursements, and the motion denied, with costs.

Dykman, J., concurs; Pratt, J., not sitting.  