
    Emily H. Moir, as Surviving Trustee of Johannah S. Seymour under a Deed of Trust, Appellant, v. Rose Flood and Others, Defendants. Adolph Cohn, Respondent.
    
      Specific performtm.ee — moi'tgage foreclosure—a referee may grant an adjournment of the completion of a purchase thereunder—what defect justifies a refusal tq take title —effect of the defect being subsequently cured, — defect of parties —what parties are not covered as unknown persons by a service by publication.
    
    A referee to sell, appointed in an action to foreclose a mortgage upon real property, has power to grant the plaintiff in the action, over the objection of the purchaser at the sale, an adjournment beyond the time fixed for the completion of the purchase in order to enable the plaintiff to remove alleged defects in thp title.
    
      Where, at the time that the purchaser gave notice of a motion to be relieved from his purchase, it appeared that the dower interest of the mortgagor’s widow, who did not join in the mortgage, was still outstanding and that she had brought an action to obtain such dower, the fact that at the time fixed for the hearing of the motion the widow has executed a release or assignment of her dower, interest to one Bright and a consent to the discontinuance of the action, and that Bright has stated that he was willing to deliver a release of the dower interest to the purchaser, does not cure the defect in the title where no assignment of such interest is ever tendered to the purchaser.
    Where the purchaser's attorney submits an affidavit stating that the mortgagor left a will, in which he devised the property covered by the mortgage to his executors in trust for certain purposes, and that such will had been filed for probate, which allegations are not denied by the plaintiff’s attorney, who also submits an affidavit in which be states that nothing had been done in the probate proceeding for several months, and that he was informed by the attorney for the proponent of the will that the estate was not sufficient to j ustify the further prosecution of the proceeding, the failure to make the trustees parties to the foreclosure action renders the title unmarketable.
    Service by publication of the summons in the foreclosure action upon unknown parties, pursuant to section 451 of the Code of Civil Procedure, will not be held to include such trustees where it is not claimed that the'names of such trustees were unknown to the plaintiff and it does not appear that the plaintiff intended to make them parties to the action.
    Hatch, J., dissented.
    Appeal by the plaintiff, Emily H. Moir, as surviving trustee of Johannah S. Seymour under a deed of trust, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 11th day of October,.1901, relieving Adolph Cohn, the purchaser at a sale of real property under a judgment of foreclosure in. the action, from completing his purchase.
    
      H. B. Closson, for the appellant.
    
      Walter B. Hopping, for the respondent.
   McLaughlin, J.:

This action was brought for the foreclosure of a mortgage upon certain real estate in the city of Hew York. It proceeded to judgment, and in pursuance thereof, on the 22d of August, 1901, the premises were sold at public auction to one Bendheim, who then paid ten per cent of the purchase money and signed terms of sale, which', among other things, fixed the ninth of September following as the time for. the final completion of the purchase. Intermediate the sale and on the ninth of September, Béridheim assigned his bid with the consent of the referee to the respondent Cohn. On the ninth of .September the completion of the sale was adjourned by mutual consent to the twelfth, and on the twelfth to the sixteenth, and on the sixteenth until the eighteenth. These adjournments were taken for the purpose of enabling the plaintiff to curé certain defects alleged to exist in the title proposed to be given. On the eighteenth the respondent was ready and willing to complete his purchase, provided he could Obtain a marketable title. He made two objections, however, to the title tendered — one, that there was an outstanding dower interest in one Helen M. Cain, widow of Michael Cain, deceased, -who gave the mortgage foreclosed and who was at the time of his death the owner of the premises covered by it; and the other that under the will of Michael Cain, deceased, the' title to the real estate covered by the mortgage was in two trustees named in his will and that they were not made parties defendant to the action. The plaintiff thereupon applied to the referee for an adjournment for the purpose of removing these alleged defects, which was objected to by the respondent. The objection was overruled and further proceedings adjourned until the twenty-fifth of the same month. On this date Cohn did not appear, but instead he served upon- the referee and the plaintiff’s attorney an affidavit and notice of motion that he would apply to the court, at the time stated in the notice, for an order relieving him from his purchase. The motion coining on to be heard, the same was granted upon the ground-—as appears from the opinion delivered by the learned justice sitting at Special Term —that the referee had ño power, against the objection of Cohn, to adjourn from the- eighteenth- to the twenty-fifth -of September,. From this order the plaintiff has appealed.

The referee had the power to grant the adjournment. He was an officer of the court and as such could grant a reasonable adjournment, if, in the exercise of his judgment,, he deemed it advisable for the protection of the. rights of any of the parties to the .action. (Angel v. Clark, 21 App. Div. 339.) It was lfis duty to see that the sale was fairly conducted and the rights of all parties to it protected, and to that end he not only had the power, hut it was his duty, if necessary, to adjourn the sale. (Barr v, Benzinger, 27 App. Div. 590.)

I am, however, of the opinion that the order must be affirmed for the reason that the referee could not give to the purchaser a marketable title. There was, at the time the motion was made, an outstanding dower interest in the widow of the mortgagor. It is not questioned but what the first objection made to the title was, when the objection was made, and on the twenty-fifth, the date to which the proceeding had been adjourned, a good one; that Helen M. Cain was the widow of Michael Cain, deceased, who was the maker of the mortgage foreclosed in the action; she did not sign the mortgage and had never released her dower interest in the premises covered by it. Mor is it questioned that she had, in fact, brought an action which was at that time pending in the Supreme Court to enforce her dower rights. But it is urged by the appellant that he had, at the time of the hearing of the motion, procured a release of her interest and a consent to the discontinuance of her action. He did not have this release on the twenty-fifth of September, and he did not procure it until several days thereafter, and this was not a release, but an assignment of her dower interest to one Bright, who, according to the papers used upon the motion, then held that interest. ■ It is true that Bright says he is ready and willing to deliver “ to the assignee of the purchaser of the mortgaged premises at the referee’s sale, or to any one whom he may name, a release in due form of law of the dower of the said Helen M. Cain in the premises affected by this action so assigned to me,” but so far as appears an assignment of this interest has never been tendered to Cohn.

I am also of the opinion that under the facts set out in this record the failure to make James Hagan and Rose Flood as trustees under the will of Michael Cain, deceased, parties defendant was an irregularity in the proceedings which rendered the title unmarketable, or at least cast such doubt upon it that a reasonable man acting under the same, or similar circumstances, would hesitate to take it. It is suggested, not by counsel, that there is no proof in the record that James Hagan and Rose Flood are trustees under the will of Michael Cain, or if so, that they have any interest in the premises. I do not sd' read the record. • In the affidavit of Cohn — and that of his attorney is substantially to the same effect—-it is alleged “ that.the plaintiff * * * has failed to bring in as parties defendant to this action the said James Hagan and Rose Flood as trustees under the will of Michael Cain, deceased; that the said will of Michael Gain, deceased, has been filed for probate upon the petition of one of the executors, and that the probate of said will is now pending in the Surrogate’s Court of the County of Hew York ; that the said testator, Michael Cain, by his said will, left all.his real estate to his executors in trust for an adopted daughter, Mary Ann Cain, * * * until she became twenty-one years of age; if she died before arriving at twenty-one years of age, then to her children in fee, and if she died leaving no issue, before arriving at twenty-one years of age, then the property was to be distributed as though the testator had died intestate; that the said-Mary Ann Cain is still living and is an infant under twenty-one years of age * * These allegations as to the will and the coúten.ts of the same are not only, not denied, but are practically admitted by one of the plaintiff’s attorneys in an affidavit in which he states that nothing has been done in proceedings for the probate of the will for several months, and that he is informed by the attorney for Hagan, the executor who offered the will for prohate, that “ there is no apparent estate to justify the further prosecution of the proceeding,” and that he is also informed by said attorney that he is willing to have his client renounce and withdraw from the proceedings if his expenses and costs, amounting to $100, are paid, and that the attorney for Rose Flood, the other executor, also informed him that she was willing to renounce as trustee under said will, and that he declined to pay the $100.

These allegations as to the existence of the will and the legal effect of it, taken in connection with the omission to deny the same, and the admission of the proceedings for the probate of the will, sufficiently establish not only the existence of the will, but the fact that the executors named therein have an interest in the real estate, and' as such should have been made parties defendant to the action. The title tendered certainly cannot be said to be reasonably free from doubt within the rule laid down in Heller v. Cohen (154 N. Y. 299).

But it is urged by the appellant that these trustees were made parties to the foreclosure as unknown parties, and as such the summons was duly served upon them by publication. Section 451 of the Code of Civil Procedure provides that where a plaintiff is ignorant of the name, or part of the name of a defendant, he may designate that person in the summons and in any other process in the action by a fictitious name, or by as much of his name as is known, adding a description identifying the person intended, and where the plaintiff demands judgment against an unknown person, he may designate that person as unknown, adding a description tending to identify him. It is not claimed that the trustees named in the will of Michael Cain, deceased, were unknown to the plaintiff, and the complaint is barren of any allegation from which even an inference can be drawn that the plaintiff intended to make them parties to the action and thus cut off any interest which they, as such trustees, might have in the premises covered by the mortgage sought to be foreclosed.

On both grounds, therefore, I am of the opinion that the order is right and should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., O’Brien and Ingraham, JJ., concurred; Hatch, J., dissented.

Hatch, J. (dissenting):

I concur in the prevailing opinion so far as it holds that the referee was authorized to adjourn the sale, and agree with the reasons assigned for such holding.

I am, however, unable to concur in the prevailing opinion so far as it holds that the facts which appear in this record were sufficient to relieve the purchaser from the fulfillment .of his contract to purchase. The adjournments which had been had prior to the eighteen th day of September were by consent of the parties and to enable the plaintiff to perfect title to the premises or to procure a policy of insurance, insuring the same. By agreeing to accept a policy of title insurance and allowing, the plaintiff to go, to the trouble and expense of procuring one, and negotiating for another when further objection to the title was made, the purchaser waived his,right to a strict performance of the contract of purchase, and of his right to object to such title, based upon defects then known to him which were subsequently cured. Under these circumstances the plaintiff was entitled to a reasonable time in which to perform the modified agreement, either by procuring a policy of insurance covering the defect, or by curing such defect. The defendant could not abruptly and arbitrarily refuse to grant such reasonable time. He was required, in order to terminate the plaintiff's right to perfect the title, to give notice that unless plaintiff performed within a time limited, which must be reasonable, the purchaser would hold himself relieved from the contract of purchase. (Schiffer v. Dietz, 83 N. Y. 300; Myers v. De Mier, 52 id. 647; Harris v. Troup, 8 Paige, 423.) Ho notice of any kind was given by the purchaser terminating the negotiations which were in progress at the time when the adjournment was had on the eighteenth of September. On that day, title not having been perfected or a policy of insffiranee given, the purchaser appeared before the referee, refused any further adjournment, and objected to the title, for the defects which had prior thereto been the subject of negotiations. The referee adjourned the matter for a week, but on the adjourned day the purchaser did not appear; and without further notice made this motion. Having taken this position, the plaintiff was relieved from tendering a conveyance of the dower interest of the widow., In fact, at this time an assignment of such interest had been made to "a pe.rson who Stood ready and willing to convey the'same to the purchaser. As, however, the latter had arbitrarily terminated the negotiations, a tender of the conveyance was not necessary to place the purchaser in default. It was sufficient that the plaintiff was able to cure the defect if the purchaser would take the same. So far, therefore, as the dower interest is concerned, the infirmity in the title was cured, and the purchaser could' not refuse to complete his purchase based upon such ground.

Concerning the objection that by'the will of Cain the equity of redemption was in certain trustees named therein, iiot made' parties to the action, it devolved upon the purchaser to prove facts sufficient from which the legal conclusion could be reached that' the title was invalid on this account. He was bound to show facts, from which it would appear that a substantial defect in the title existed. (Platt v. Finch, 60 App. Div. 312; Goodwill v. Crooks, 58 id. 464; Lenehan v. College of St. Francis Xavier, 51 id. 535.) The only proof upon this subject is found in the affidavit of the purchaser, to the effect that it appeared from the records that there was a will of Michael Cain, which had been filed for probate in the Surrogate’s Court of the county of New York, and that by the terms of the will he had left all his real estate to his executors in trust for an adopted daughter, until she became of age, and to her children in fee, and if she died without issue the property was to be distributed as though the testator had died intestate.

It seems to me that this proof amounts to no more than a mere assertion, and fails of showing that there was, in' fact, any will of Michael Cain. The will itself is not produced. It is not shown that Cain, in fact, ever signed any will, or that it was executed as required by law. The record is not produced, nor is any quotation made from the will or statement of any kind from which the court can see that there was a valid will executed by Michael Cain.

The mere assertion of the existence of such a document does not establish it, nor is it sufficient from which the court could draw' an inference, either as matter of fact .or as conclusion of law that there was a will affecting the title to the property. It may be conceded that a paper had been filed for probate in the Surrogate’s Court, but no further proceedings had been taken thereunder, and the testator had been dead for nearly a year and a half, and further testimony tends to show that if any steps were contemplated to have been taken thereunder they have been abandoned. If force is to be given to the rule of law which requires that the purchaser shall specify the defect and sustain it by proof, it would seem that he has failed, so far as is disclosed by the present record.

In addition to this, it appears that the executors, who, the affidavit of Cohn states, were the trustees, were in fact made parties by name and were served by proper publication of the summons as unknown persons, as provided by section 438, subd. 1, of the Code of Civil Procedure.

The designation of the executors was sufficient to constitute them proper parties, even though they occupied the dual relation of executors and trustees (Knox v. Met. El. R. Co,, 58 Hun, 517); and service in this manner was authorized. (Abbott v. Curran, 98 N. Y. 665; Moran, v. Conoma, 27 J. & S. 101.)

For these reasons I think that the purchaser did not show such a defect in the title as entitled him to be relieved from his purchase.

The order should, therefore, be reversed, with ten dollars costs and- disbursements, and the motion denied, with ten dollars costs, and the purchaser directed to complete his purchase.

Order affirmed, with ten dollars costs and disbursements.  