
    Catherine Meighan, Respondent, v. Lillie E. Rohe and Others, Defendants, Impleaded with The People of the State of New York, Appellant.
    First Department,
    February 19, 1915.
    Heal property — action to register title — purpose of statute—title must be marketable — parties — right of Attorney-General to appear — proof not establishing title by adverse possession—escheat — process — service upon owner of record who has disappeared — duties of official examiners of title.
    The purpose of the so-called Land Title Registration Law is to allow an action to register good titles, not to cure bad ones.
    A title which may be registered in such action is one which is marketable and free from reasonable doubts; in other words, such title as a court of equity would compel an unwilling purchaser to accept in a suit for specific performance.
    The People of the State of New York have an interest in seeing that imperfect titles are not registered in such action, and hence it is both the right and the duty of the Attorney-General to appear and act as amicus curios.
    
    A plaintiff in such action cannot be found to have acquired an absolute fee by adverse possession where the record title is in another, upon mere proof that the owner of record before acquiring title signed a writing stating that, being about to travel, the plaintiff’s predecessor should be his lawful heir and owner of the lands in question, with the further proof that the former owner has not been heard from since, while the plaintiff and her predecessor have been in possession for many years, and have fenced and improved the land.
    The fact that one has been in actual, open and notorious possession of lands for more than twenty years is not alone sufficient to establish a title by adverse possession. It must be shown in addition that the possession was coupled with a claim of title adverse to the true owner. The writing aforesaid, signed by the owner of record, was not effective as a deed, will, or contract to convey, and vested no title whatever in the person named.
    Qucere, as to whether a title in the State, created by escheat, can be defeated by adverse possession.
    Evidence in an action to register a land title examined, and held, that an order for substituted service upon [a person holding record title was unauthorized, in that there was insufficient proof that due search had been made and that it was impossible to discover his whereabouts.
    Such defect is jurisdictional, and objection thereto may be taken on appeal from the final judgment.
    Official examiners of titles are public officers, and should state no facts in their certificates and abstracts regarding the sufficiency of a title carelessly, or without proof of the accuracy of the facts stated.
    Appeal by the defendant, The People of The State of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Bronx on the 12th day of June, 1911, upon the decision of the court after a trial at the Bronx Special Term.
    
      Robert P. Beyer, for the appellant.
    
      Gilbert Ray Hawes, for the respondent.
   Scott, J.:

The action is brought under article 12 of the Real Property Law, as amended by chapter 627 of the Laws of 1910 (known as the Torrens Land Title Registration Law), to register the title of plaintiff to certain real property described in the complaint, consisting of a plot about twenty-five feet in width and two hundred and fifteen feet in depth extending from Bergen avenue and Third avenue, fronting on both.

After a trial at Special Term the plaintiff recovered the judgment appealed from which adjudges her to be the owner in fee simple absolute of the property in question, and grants registration thereof in accordance with the provisions of the statute.

Exceptions were duly filed by the Attorney- G-eneral of the State of New York, and he now prosecutes this appeal. The questions presented are in part technical, having to do with the proper procedure to be followed in such cases, and in part substantial, having to do with the sufficiency of plaintiff’s title as exhibited by the proofs. The plaintiff challenges the right of the Attorney-General to criticise or attack her claim of title because in his answer he contented himself with putting in issue, by appropriate denials, the allegation of the complaint, without specifically pleading controverting facts tending to establish title in the People of the State of New York. This objection renders it proper that some consideration should be given to the object of the registration law, and to the proper attitude to be taken by the Attorney-General in actions prosecuted thereunder.

It is well settled that the purpose of the act is to register good titles, not to certify bad ones. (Partenfelder v. People, 211 N. Y. 357.) A good title which may be registered we understand to be one which is marketable and free from reasonable doubt, or in other words, such a title as a court of equity would compel an unwilling purchaser to accept in an action for specific performance. In the nature of things actions to register a title under the act will frequently be practically ex parte especially in view of the somewhat loose provisions for service of process upon absent defendants and possible claimants. The People of the State of New York have an interest to see that imperfect "titles are not registered, and it is not only the right but the duty of the Attorney-General in the protection of that interest to insist in each case that proper proof of title be made, acting in effect as amicus curice. This is expressly held in Barkenthien v. People (212 N. Y. 36, 44), wherein the court uses the following language: “In the provision that the complaint shall state what interest, if any, the State has in the property involved in the action ‘other than the general governmental interest, or such as exists as to all land in private ownership,’ is the recognition of the fact that there inheres in the People of the State an interest in a true, just and conclusive registration of the titles to the lands within the State. A system or procedure which would secure or permit the registration of false, defective or questionable titles would give rise to conflicts of ownership, litigation or appeals for legislative relief, and be inimical to public peace and contentment, and of brief existence. (American Land Co. v. Zeiss, 219 U. S. 47; Arndt v. Griggs, 134 U. S. 316.) The judgments rendered in the actions are well nigh conclusive throughout the future as against all the world, and it is both wise and just that the People of the State in the capacity of representative or protector of parties having interests in the property should be empowered to compel the plaintiff to establish a title free from reasonable doubt. ”

In the' present case the plaintiff makes no claim to a record title to that part of the premises described in the complaint which fronts on Third avenue, and extends easterly therefrom about 200 feet. Her claim is that she has established a title, good against all the world, by adverse possession. The record title is in one Peter Wurm, to whom the lot was conveyed by Casper Zuern and wife by deed, dated March 23, 1854, and recorded February 6, 1857. There is no record of any conveyance by Peter Wurm. There is extant, however, a paper writing, in the German language, signed by him and dated September 26, 1852, the translation of which reads as follows: I am about to travel, and hereby promise in case I should not return within four to ten years Mr. Peter Biecker shall be my lawful heir, and owner of my lot situate at Melrose. ”

It will be observed that - this paper antedates by about eighteen months the deed by which Wurm acquired the title to the property. This fact is apparently accounted for by another paper said to. be in Wurm’s handwriting, but not signed by him, which recites that he, Wurm, had already paid for the lot; that Zuern, the vendor, had not been able as yet to obtain a deed himself, and that said Zuern agrees to satisfy a mortgage on the lot within a year, and “ to let me have, as legal owner of the lot bought of him, the deed of said property through the intervention of Mr. Peter Biecker of Hew York.” This paper is dated September 28, 1852, and is signed by Caspar Zuern and his wife Agnes, as well as by a witness.

After signing the paper above quoted, under which plaintiff claims title, Peter Wurm departed upon his travels and has not been heard from since. At some time thereafter Peter Biecker went into possession of the plot of land, improved it, built a fence around it, and he and the plaintiff, his daughter, have remained in possession thereof ever since. It is upon this possession that plaintiff rests her claim of title. That she, and her father before her, have been in actual, open and notorious possession of the property for much more than twenty years is proven, but that fact alone is not sufficient to establish a title by adverse possession. It is necessary to show in addition that such possession was coupled with a claim of title adverse to the true owner. Of this there is no proof whatever. The document signed by Peter Wurm in 1852 was neither a deed, nor a will nor a contract to convey. It vested in Peter Biecker no title whatever. During the first ten years after Peter Wurm started on his travels, Biecker certainly could not have occupied the premises under any claim of title from Wurm, and there is no evidence that at any time he asserted any claim in opposition to Wurm’s title. It seems quite apparent that plaintiff’s claim of a title in fee simple absolute could not prevail against Peter Wurm if he should reappear and make claim to the property^ or, in case of his death, against his heirs if they should so appear and make claim. If Peter Wurm be dead, as from the lapse of time it may be presumed that he is, and if he left no heirs the property has apparently escheated to the People of the State of New York, and it is very doubtful whether or not the estate of the State, created by escheat, can be defeated by any claim of adverse possession. (Hamlin v. People, 155 App. Div. 680.) It is not necessary, however, at the present time, to speculate as to where the title to the property in question has vested, and it is impossible for lack of the requisite proofs to determine that question. It is sufficient for the purposes of this appeal that the plaintiff has not shown upon the proofs that she possesses a good and marketable title — such an one as the court would compel an unwilling vendee to accept. (Simis v. MeElroy, 160 N. Y. 156.) Having failed to show this she was not entitled to a judgment and décree of registration.

Apart from this fundamental objection to the registration of plaintiff’s alleged title there are deficiencies in the proceedings as disclosed by the papers on appeal. It was attempted to make substituted service upon Peter Wurm and an order therefor was obtained based in part upon the certificate of title and abstract of the official examiner, and the only evidence before the court as to the absence of Peter Wurm; his last known place of residence and the efforts that have been made to find him were the statements contained in that certificate and abstract. Section 380 of the Real Property Law, as amended by chapter 627 of the Laws of 1910, requires that the official examiner’s certificate of title “shall state fully what search and efforts have been made tq. find ” actual or possible owners or claimants of the property sought to be registered not known or not found. The certificate, in the present case notably fails to comply with this requirement. It simply states, as to Peter Wurm, that he was never heard of after his departure upon his travels “ although diligent efforts have been made to locate him.” The only support to be found for even this insufficient statement in the certificate is the general allegation by plaintiff in an affidavit attached to and referred to in the certificate that: “ She and her father and mother and other members of her family have made every effort to trace said Peter Wurm, but have been unable to locate him or find any trace of him since 1854.” It is quite apparent that the- court when it made the order for substituted service on Peter Wurm had not before it any legally satisfactory evidence that diligent or any effort had been made to find Peter Wurm or his heirs. The court, therefore, in making the order that the action be commenced and that service upon Peter Wurm be made by advertisement and mailing, acted, so far as concerned said Peter Wurm, without any facts upon which such an order could be based, and the attempted service was futile to invest the court with jurisdiction to make a decree barring any claim he or his heirs might hereafter assert. (Partenfelder v. People, 157 App. Div. 462 ; 211 N. Y. 355.) This objection, being jurisdictional, may be taken upon appeal from the final judgment. And even the order that was made does not appear to have been complied with, for we can find in the record no proof that a copy of the summons and complaint was ever mailed. Even the evidence given on the trial as to any attempts to find Peter Wurm is wholly unsatisfactory. It consisted merely of very general and vague testimony by plaintiff that in 1865 or 1866, while she was a very young girl, her parents inserted an advertisement printed in the German language and sent a letter to some one in Westphalia. Of any serious or more recent effort there was no proof whatever.

It may not be out of place to call attention to the wide discrepancy between the certificate of the official examiner and the testimony given on the trial. It is stated by the official examiner, relying upon an affidavit by plaintiff, that “Peter Wurm borrowed part of the purchase money for said premises from her father and after the conveyance to him and in or about the month of March, 1854, the said Wurm departed on a journey to Mew Orleans and Mexico, and was never heard of again although diligent efforts have been made to locate him, and" that at the time of his departure the said Wurm was unmarried and had no living relatives. That before his departure, the said Wurm delivered to Peter Biecker, the father of Catherine Meighan, the said deed, together with a letter in the German language to the effect that if he, the said Wurm, did not return from four to ten years, that then and in that event Peter Biecker, the father of the said Catherine Meighan, was to be and become the owner of the said premises in consideration of the money advanced by him for the purchase price and for the payment of taxes, etc.

The official examiner states that these facts appear from an affidavit of said Catherine Meighan and from other papers in possession of and conversations had with her. The affidavit of Catherine Meighan upon which the examiner thus relies shows that she was born on February 27, 1851, and thus was less than two years old when Peter Wurm signed the paper relied upon and less than four years old when the deed to him appears to have been made. Her testimony as to what took place at that time, and as to whether Peter Wurm was unmarried and had no living relatives is certainly lacking in probative force. There was no evidence produced on the trial to show that Peter Wurm borrowed any part of the consideration from Peter Biecker, and the paraphase by the official examiner of the purport of the paper signed by Peter Wurm is wholly inaccurate and misleading.

Official examiners of titles are public officers, and great importance is attached by the Registration Law to their certificates and abstracts. It is their duty to state no facts regarding the sufficiency of a title carelessly or without proof of the accuracy of the facts stated. This duty seems to have been overlooked by the examiner who certified to the title in question. No better illustration is needed of the propriety of the Attorney-Q-eneral’s scrutiny of applications for the registration of titles than is afforded by the present case.

The judgment appealed from must be reversed and the complaint dismissed, with costs to appellant in this court and the court below.

Ingraham, P. J., McLaughlin, Laughlin and Clarke, JJ., concurred.

Judgment reversed, with costs, and complaint dismissed, with costs. Order to be settled on notice.  