
    (69 Hun, 298.)
    GREENBLATT v. HERMANN.
    (Supreme Court, General Term, First Department.
    May 12, 1893.)
    1. Specific Performance—Title of Vendor—Sale by Administrator.
    Administrators filed a petition for leave to sell decedent’s land for the purpose of paying his debts, alleging that he left no lawful issue, widow, father, mother, brothers, sisters, or descendants of them, heirs surviving, and “that his heirs at law are first cousins, and heirs tof deceased first cousins,” whose names were given in a list. These persons were collateral relatives of decedent’s father, and no mention was made of collateral relatives of his mother. There was testimony that the persons named in the petition were the only heirs, or descendants of heirs. Held, in a suit for specific performance of a contract to convey, made by one claiming title under a sale ordered pursuant to such petition, that the title was such that the purchaser should have accepted, notwithstanding the failure of the petition for the sale to allege that the mother of decedent left no collateral heirs, the purchaser offering no evidence that there were such heirs.
    2. Same—Rights of Vendee.
    A purchaser of land, having refused to perform his contract on the ground that the title is bad, and, in a suit for specific performance, having failed to show that the vendor’s title is defective, is not entitled either to recover back the amount paid by him on the contract, or to specific performance.
    Appeal from special term, New York county.
    
      Action by Louis Greenblatt against David Hermann. From a judgment dismissing Ms complaint, plaintiff appeals.
    Affirmed.
    Argued before VAN BRUNT, P. J., and FOLLETT and BAR- ' RETT, JJ.
    Van Duzer & Taylor, (Henry S. Van Duzer, of counsel,) for appellant.
    E. F. & A. C. Hassey, (Samuel H. Benton, of counsel,) for respondent.
   FOLLETT, J.

TMs action was brought by a vendee against a vendor to compel the specific performance of an executory contract, or, in case it could not be performed, to recover the money that he had paid on the contract, together with damages for its nonperformance. October 1, 1840, Charles W. Mchols purchased the land, the title to wMch is the subject of this action, taking a-full covenant deed, which was duly recorded October 10, 1840. On the 27th day of January, 1879, Mchols died, seised of the premises. He died intestate, leaving no widow, no ancestors, and no descendants. His father and mother, Benjamin and 'Margaret Mchols, died before him, leaving no ancestors and no descendants, except Charles W. Mchols. Under such circumstances, the land having been acquired by purchase, it descended to the collateral heirs óf his father and -mother, in equal proportions, if both left such heirs. On the 19th of February, 1879, letters of administration were granted to John B. Knapp, James H. Mchols, and Augustus H. Allen, on the estate of Charles W. Mchols, by the surrogate of the county of Kings. The decedent’s personal estate was insufficient to pay Ms debts, and he left no real estate, except that involved in this litigation. On the 11th of September, 1880, more than 18 months after letters were issued, the administrators filed their petition in the surrogate’s court for leave to sell this real estate for the purpose of paying the intestate’s debts. It was alleged in the petition “that the deceased left no lawful issue, widow, father, mother, brothers, sisters, or descendants of them, him surviving; that his heirs at law gre first cousins, and descendants of deceased first cousins, and their names and residences, and the names and residences of the respective husbands or wives of such as are married, are as follows, to the best [of] our knowledge, information, and belief.” Then follows a list of more than 50 persons who are alleged to be' the heirs at law of the decedent. All of these persons were the collateral relatives of the intestate’s father, and no mention is made of any collateral relatives of the intestate’s mother.

It is urged, that the petition is fatally defective, and conferred no jurisdiction upon the surrogate to entertain the proceedings, because it is not alleged that the intestate’s mother left no collateral heirs. A citation was duly issued and served upon the persons mentioned in the petition. On the hearing before the surrogate a so-called ancestral tree or schedule of the heirs of Charles W. Mchols was exhibited, and verified by oral evidence. By this tree it appears that the persons named in the petition, and cited, were the heirs, on the father’s side, of Charles W. Nichols. It also appears that the mother, Margaret, was dead, and it does not disclose that she left any collateral heirs. James H. Nichols, a member of the family, testified that he knew the decedent, and that “there are no other heirs at law, or descendants of heirs at law, other than are mentioned there” in the schedule. Upon this evidence, and upon evidence that it was necessary to sell the real estate for the payment of debts, the property was ordered to be sold. It was sold at public auction, and conveyed to the purchaser, which conveyance was confirmed by the surrogate’s court. The defendant in this action acquired his title to the land by mesne conveyances from the purchaser at the surrogate’s sale. April 13, 1892, the parties to this action entered into an executory contract by which the plaintiff agreed to purchase, and the defendant agreed to sell, the above-mentioned premises for $19,566, to be thereafter paid; the defendant agreeing to convey to the plaintiff the title to the land in fee simple, free and clear of all incumbrances except those mentioned in the contract. The plaintiff paid $1,500 on the contract, but at the time mentioned for its performance refused to accept of a conveyance, which he admitted was satisfactory in form, because, as he alleged, the proceedings in the surrogate’s court vested no title in the purchaser at the sale. On the trial the proceedings in the surrogate’s court were introduced in evidence, but the plaintiff failed to show, and did not attempt to show, that the decedent’s mother left collateral heirs, and there is no evidence in the case of the existence of such heirs.

It is insisted that the proceedings in the surrogate’s court are fatally defective because it was not alleged in the petition by which the proceedings were instituted to sell the land that Margaret Nichols had no collateral heirs, and because this fact was not established by common-law proof before the surrogate’s court. We are of the opinion that the allegation that the persons named in the petition were the heirs of the decedent is, in legal effect,, an allegation that they were all of his heirs, and that it was not necessary to affirmatively allege that Margaret Nichols left no heirs. As before stated, a member of the family testified on the hearing before the surrogate that the decedent left no other heirs than those mentioned in the schedule, which were the same as those mentioned in the petition. This allegation and this evidence were sufficient to give the surrogate jurisdiction of the proceeding; and, there being no evidence offered tending to show that there were any persons not mentioned in those proceedings who were the heirs of Margaret Nichols, the plaintiff failed to establish any defect in the title of the defendant. The burden was upon him to show that defects existed. . The mere fact that it was possible that Margaret might have left collateral heirs is not sufficient to entitle him to recover in this action. The plaintiff having refused to perform his contract without adequate cause, and not having shown that the defendant’s title was defective, he is not entitled to recover the amount which he paid on the contract, nor is he entitled to a specific performance thereof.

The case containing exceptions, which is printed with the judgment roll, does not appear to have been settled by the judge before whom it was tried, and ordered filed. Under such circumstances it forms no part of the record, and the questions which the appellant' seeks to raise are not brought before this court for review, by an appeal from the judgment. However, we have considered the case on the merits.

The judgment should be affirmed, with costs. All concur.  