
    Dina Barkenthien, Appellant, v. The People of the State of New York, Respondent, Impleaded with Joseph Dykes and Others.
    Second Department,
    February 7, 1913.
    Real property — proceeding to obtain registration of title — People of the State must be made party defendant — proof not justifying registration of title—right of People to contest registration — evidence — burden upon applicant to establish title.
    In a proceeding to obtain registration of title to real property pursuant to sections 370 to 435 of the Real Property Law, the People of the State must be made party defendant whether claiming any proprietary interest in the land or not.
    Proceeding to register the title to lands in which the People appeared and defended upon the ground that the property had escheated to the State. Evidence examined, and held, that the plaintiff failed to establish title to the premises.
    Irrespective of whether the People of the State assert title to lands sought to be registered, they may put the applicant’s title in issue, whereupon he is put to proof of his title before registration can be made.
    The Legislature has power to authorize the People to appear in such proceeding in order to see that no title shall be registered which is not free from reasonable doubt.
    That part of section 889 of the act providing that the defendant “ shall state particularly what his interest is and answer the material allegations of the complaint ” applies only to defendants other than the People.
    The complaint in such proceeding and all other papers filed must show that the plaintiff appears to have a title that should be registered, and no registration can be made unless the court is satisfied that the title is free from reasonable doubt.
    The court cannot grant registration of title without proof that the title is one of the character specified in the statute and is free from reasonable doubt. And an allegation as to the nature and character of the applicant’s title is essential, for what must be proved must be alleged.
    An allegation that a thing is claimed to be so is not equivalent to an allegation that it is so.
    Although section 385 of the Real Property Law, as amended by chapter 627 of the Laws of 1910, states that in proceedings subsequent to a determination that the plaintiff has a title which should be registered, the allegations of the examiner’s certificate of title and all his abstracts and searches and the survey shall be prima facie evidence of the facts so alleged and stated, etc., and that if any defendant controverts said facts he must specifically allege and establish affirmatively the controverting facts, etc., it does not cast upon the People of the State who have denied the plaintiff’s title the burden of affirmatively disproving the same; the burden to prove title rests upon the applicant.
    Appeal by the plaintiff, Dina Barkenthien, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Queens on the 31st day of July, 1912, upon the decision of the court, rendered after a trial at the Queens County Special Term, dismissing the complaint.
    
      Henry L. Franklin [Matthew J. Wheelehan with him on the brief], for the appellant.
    
      Robert P. Beyer, Deputy Attorney-General [Thomas Carmody, Attorney-General, with him on the brief], for the respondent.
   Burr, J.:

This is a proceeding to obtain registration of a title to real property, pursuant to the provisions of the Beal Property Law (Consol. ■ Laws, chap. 50 [Laws of 1909, chap. 52, as amd. by Laws of 1910, chap. 627], §§ 370-435), familiarly known, but inaccurately described, as the Torrens Law. The application for registration, after alleging that the applicant is the owner in fee simple absolute of the said real property, further alleged that the applicant claimed that prior to 1846 the premises sought to be registered belonged to one Joaquina Jose Vasquez, who, dying in that year, left a will, proved before the surrogate of the county of New York on the 3d day of October, 1846, which will purported to devise said premises to Jerome Charles Albert Bobone, Emilie Catherine Bobone, otherwise known as Emilie Catherine Van Zeller, and Josephine Constancia Bobone, otherwise known as Josephine Constancia Testor, children of a sister, Anna Emelia Bobone, by her marriage with one Jerome Bobone. It also alleged that one Eduardo Henrique de Meuron claimed some right, title and interest in said property as heir at law or devisee or otherwise of Joaquim Jose Vasquez or Ann Emelia Bobone or Jeanne Adelaide Bobone or otherwise, the exact nature of whose claim or right, if any he has, is unknown.- The said Eduardo Henrique de Meuron was made a party defendant and was served by publication, applicant claiming that she did not know his residence except that he was supposed to reside in the city of Lisbon and Republic of Portugal. He did not appear nor answer, nor is there any proof that he had actual notice of this proceeding. The People of the State of New York were made parties defendant, as under the act it is necessary that they should be, whether claiming any proprietary interest in the land or not. (Real Prop. Law, supra, § 379, subd. d.) The People appeared by the Attorney-General and answered, denying most of the allegations of the application, including the allegation that applicant was the owner in fee simple absolute of the real property therein described. Such answer also pleaded a defect of parties defendant, in that one W. H. Pitkin, who had or claimed to have some interest in said property by reason of certain sales for taxes, was not made a party defendant, and also attacked the sufficiency of the official examiner’s certificate of title annexed to the application, pointing out in what respect it was claimed to be deficient, and further specifically alleged that at the time of the death of Joaquim Jose Vasquez all of the devisees named in his said will were non-' resident aliens, and that the attempted devise therein was void; that the sole heir at law of said Joaquim Jose Vasquez was a non-resident alien, residing at Lisbon, aforesaid, and that the title had escheated to the People of the State of New York, who have never conveyed nor otherwise divested themselves of said title.

Although the specific facts above referred to were not pleaded as a counterclaim, plaintiff replied setting up, among other things, that if the devise contained in the will of Vasquez was void perforce the statutes of the State of New York, by virtue of the treaty between the United States of America and the Kingdom of Portugal, proclaimed April 24,1841, where on the death of any person holding real estate within the limits of one of the high contracting parties, such real estate would, by the laws of the land, descend on a citizen or subject of the other party, who, by reason of alienage, may be incapable of holding it, he shall be allowed the time fixed by the laws of the country; and in case the law of the country actually in force may not have fixed any such time he then shall be allowed a reasonable time to sell or otherwise dispose of said real estate and to withdraw or export the proceeds without molestation. It also alleged that the said Eduardo H. de Meuron is a non-resident of the State of New York, and claims to be a citizen of the Swiss Eepublic, but is now domiciled or is a resident or a citizen of the Kingdom (sic) of Portugal,” and that whatever rights, if any, he may have had as heir at law of said Vasquez “ by virtue of the provisions of the treaties between the United States of America and the Kingdom of Portugal and (sic) the United States of America and the Swiss Eepublic,” are now barred and precluded. Certain other affirmative allegations in the nature of equitable offsets against any claim of de Meuron or the People of the State of New York were contained in said reply, which allegations it is unnecessary now to consider, and the bar of the Statute of Limitations was also pleaded. When the case came on for trial plaintiff offered in evidence the original summons and complaint and examiner’s certificate of title, the original abstract of title signed by the official examiner, notice of the pendency of this action, the order for the issuance and service of the summons and notice of object of action, an affidavit of regularity so called, and of posting of the summons and notice of object of action, and of publication of the same, the reply to defendants’ answer, and an excerpt from the treaty between the United States and Portugal, proclaimed April 24, 1841. Each of these documents was received over defendants’ proper objection, and an exception was taken. Oral testimony was then offered respecting a certain tax deed, which it is not essential now to consider, and also as to the filing of a notice of pendency of action by Eduardo de Meuron in a suit affecting said property. The applicant then offered herself as a witness and testified as to the price paid by her when she bought the lot of ground, the sum paid for erecting a house thereon, the payment by her of taxes on the property, and that she had attempted to sell it, but that the title had been rejected as imperfect and defective. Without offering further evidence, plaintiff rested, and on motion of the Attorney-General the learned court at Special Term dismissed the proceeding for failure of proof and declined to register the title; and from a judgment entered in accordance with such decision this appeal comes.

We do not deem it necessary at the present time to consider the very grave and serious questions which suggest themselves respecting the constitutionality of this act, or of some at least of its provisions. Assuming that it is a valid law, we think that under a fair construction of the language thereof plaintiff failed to establish by any competent proof a good and valid title to the premises sought to be registered, and that the judgment of the court at Special Term was right and should be affirmed.

1. Irrespective of the fact that the People of the State of New York in this particular instance assert an adverse title to that of the applicant, we think in every case the People have the right to appear in a proceeding of this character, and upon putting the fact of applicant’s title in issue, to insist upon proper proof thereof before registration is permitted. The act requires (§ 379, subd. d) that in every such proceeding the People of the State of New York shall be specifically named as defendants, in addition to those other defendants specifically named as having or claiming “ any right or interest in or lien upon the property, or any part thereof, as shown by the examiner’s certificate of title,” or “who have filed any caution or cautions against the registration of such property,” and in addition to that class of defendants generally described as “ all other persons, if any, having any right or interest in or lien upon the property affected by this action, or any part thereof.” (Id.) It would seem unnecessary, to say the least, to require that a person should be specifically named as a party to a proceeding who had no interest in the result thereof, and to deny to such person the right upon a proper pleading to put the opposing party to his proof. (Hyde v. Kitchen, 50 N. Y. St. Repr. 466; Duffy v. Shirden, 139 App. Div. 755; Sundermann v. People, 148 id. 124.) By requiring that the People should in every instance be made a party defendant, the statute would seem to recognize that they are persons whose interests may be affected by the judgment. (Sundermann v. People, supra.) We think that a reason may be found for this requirement in favor of the People. The purpose of the act, if it is a legitimate purpose and lawfully carried out, is to bar “the State of New York and all persons in the world,” whether specifically named as defendants or not, from any claim to or interest in the property in question. (Id. § 391.) If, therefore, the interest of the People was simply in the nature of a general public interest, it might be that the Legislature could authorize the People, acting in that interest to appear in such a proceeding and see to it that no title is registered which is not “ free from reasonable doubt.” (Id. § 391.) We think that it is within the power of the Legislature to make such a provision, even though the proceeding should be deemed to relate primarily to private interests. (People v. Ballard, 134 N. Y. 269, 291; Hathorn v. Natural Carbonic Gas Co., 194 id. 326, 348; People v. N. Y. Carbonic Acid Gas Co., 196 id. 421.) We think that this act. is sufficient authorization for such appearance. Reading section 389 of the act in connection with the other provisions thereof, we think that the requirements of that section that a defendant ‘c shall state particularly what his interest is and answer the material allegations of the complaint ” should be limited to those defendants other than, the People who are “ interested in the property, or whose interests may be affected by the judgment in the action ” by reason of some special claim thereto. There may be found an additional reason for the position which the Legislature has authorized the People to take. Another purpose of the act, if it is a legitimate purpose and the act is sufficient for its accomplishment, is to provide an assurance fund for land registered under said act for the benefit of “Any person who, without negligence on his part, sustains loss or damage or is deprived of real property, or of any estate, right or interest therein, after the original registration thereof, because of the registration of another person as owner of such property, or of any estate, right or interest therein, through fraud, or in consequence of any error, omission, mistake or misdescription in any certificate of title or in any entry or memorial in the registration book.” (Id. § 427.) It may well be that the People of the State are interested in seeing to it that no registration of title is made which shall imperil the safety of this assurance fund.

2. The allegation contained in the application that “the plaintiff is the owner in fee simple absolute of the said real property,” described therein, is sufficiently put in issue by the specific denial of this allegation contained in defendants’ answer. Although the act provides (§ 370) that “Real property, or any estate, interest or right therein, the title tó which is hereby authorized to be registered, may be brought under the operation of this article.” (Real Prop. Law, art. 12.) “Ho title to * * * estate less than a fee simple shall be registered, unless the title to the legal estate in fee simple in the same property is first registered.” (Id. § 378.) The application in this case clearly shows that this is an application to register a title of such a character. Section 379 of the act requires that “The complaint shall set forth, in addition to any other proper allegations, ” certain specified things. It is true that a statement of the nature of applicant’s claim is not numbered among those thus specified. But it must appear from the complaint, and all the other papers and documents filed in the making of the application for registration, that plaintiff appears to have a title that should be registered (Id. § 385), and “Ho judgment of registration shall be made, unless the court is satisfied that the title to be registered accordingly is free from reasonable doubt.” (§ 391.) The act further requires that “ The court’s jurisdiction shall be the same as in an action in the Supreme Court * * * and the action shall be governed by and shall proceed according to the laws of this State and the rules of court relative to such an action, as far as the same are not expressly abrogated or modified by this article.” (Id. § 385.) It is elemental that what must be proved must be alleged. The court cannot be satisfied that the title sought to be registered is one of the character specified, and is free from doubt, without proof to that effect. An allegation, therefore, as to the nature and character of applicant’s title is essential, and is one of those “ other proper allegations ”' referred to in said act, in addition to the specific allegations enumerated in section 379. The applicant must, therefore, take one horn of the dilemma or the other. Either the general statement contained in her application that she “is the owner in fee simple absolute of the said real property ” is such an allegation, or the application contains none of such a character. If the general allegation is sufficient, then a specific denial of it, such as is contained in the answer of defendant The People of the State of New York, puts the fact in issue. If this general allegation is not sufficient, then the application is defective. Although the application contains some other specific allegations as to plaintiff’s claim as to the devolution of her title, each of these specifications is specifically denied, and the sufficiency of such an allegation is at least doubtful. An allegation that a person claims a thing to be so is not the equivalent of an allegation that it is so.

3. Defendants’ right to compel proof of applicant’s title existing under the law, and the answer of the People of the State of New York putting the material facts in issue, applicant’s proof upon the trial was insufficient. The character of this proof has been already referred to. Prior to the amendment of 1910 (Laws of 1910, chap. 627) such proof was clearly insufficient. (Voorhies v. Voorhies, 66 Misc. Rep. 78; Glos v. Hallowell, 190 Ill. 65; Glos v. Cessna, 207 id. 69; Glos v. Holberg, 220 id. 167.) By the act last referred to, section 385 of the Eeal Property Law was amended so that it read as follows: “Tn all proceedings subsequent to the determination by the court that plaintiff appears to have a title that should be registered, the allegations and statements of the examiner’s certificate of title, and of his abstract and searches, and in the survey, shall be prima facie and presumptive evidence of the facts so alleged and stated, and if any defendant controverts any allegation or statement contained in said certificate of title, abstract, or searches, or survey, the facts controverting such allegation or statement must be specifically pleaded and set forth, and except as in this section otherwise provided must be established affirmatively by the defendant pleading or setting forth the same. * * * Where a party has controverted in his pleading specifically an allegation or statement contained in said certificate of title, abstract, searches or survey, any party who has appeared in person or by attorney or counsel at the trial may require that the ordinary rules of evidence and proof, unaffected by this section, shall apply to the matters so controverted.” The learned counsel for the applicant asks us to construe this as meaning that if a defendant has answered specifically controverting any allegation or statement contained in either of the papers above specified, the burden of proof is upon him to affirmatively establish the specific allegations of his answer, and that in this case it devolved upon the defendant The People of the State of New York to affirmatively prove that applicant had no title. If we are right in our previous construction of the act, to the effect that the provisions of section 389, requiring the specific statement of the interest of the answering defendant, does not apply to the People, the effect of this amendment need not be considered. But if we are wrong in this respect, the answer of defendant did contain statements specifically controverting applicant’s claim of title, and at the beginning of the trial the learned Attorney-General gave notice that he should require that the ordinary rules of evidence and proof, unaffected by this section, should apply to the matters controverted, to wit, the sufficiency of applicant’s title. The learned counsel for the applicant contends that this only means that a party defendant who has interposed such an answer must, upon the demand of any other party, either plaintiff or codefendant, establish his affirmative allegations by proof of this character. This construction of the act would make the provision in question meaningless. The only proof by which any party except the applicant could establish his contention would be by the ordinary rules of evidence and proof, unaffected by this section. The only person whose character of proof is thereby affected is the applicant. To construe it as appellant contends it should be construed would be to say in effect that a party defendant must, upon the demand of any other party to the proceeding, establish his allegations by the only character and quality of proof that under any circumstances, and with such demand or without it, would he available to him. We acquit the Legislature of any such foolish intention. After such demand the burden was on the applicant to establish her alleged title by the ordinary rules of evidence and proof. She made no attempt to do so, and was properly dismissed.

The judgment appealed from must be affirmed, with costs.

Jenks, P. J., Hirsohberg, Woodward and Rich, JJ., concurred?

Judgment affirmed, with costs.  