
    Pincus Lowenfeld and William Prager, Appellants, v. Stephen D. Ditchett, as Executor, etc., of George W. Ditchett, Deceased, Respondent.
    First Department,
    June 15, 1906.
    Real property—when title not marketable — title on foreclosure defective through failure to join foreign heirs — presumption of escheat — State not bound by foreclosure by advertisement.
    Action by the vendee of real estate to recover a deposit on the ground that the vendor could not convey a marketable title.
    The vendor’s predecessor in title died in 1864, seized of the premises which were subject to a purchase-money mortgage. His widow filed a petition for administration setting out that the deceased left him surviving the petitioner and a mother and sister residing in England; “his only next of kin.” The letters issued on the petition were never revoked. Thereafter in 1865 the assignee of the mortgage foreclosed, making the widow individually and as executrix the sole defendant, and bought in the property on the sale leaving a deficiency for which judgment was never entered. In 1867 the purchaser at foreclosure conveyed the premises to one B. (the vendor’s predecessor in title) and in the same year one 0., describing himself as sole surviving heir of the decedent, quitclaimed the same premises to' said B.
    In the conveyance of another piece of land made at the same time by the widow to said B. the said C. joined with her, both describing him as sole surviving heir of the decedent. Friends of the decedent testified that they knew no such person as 0.
    
      Held, that a finding that C. was the sole surviving heir of the decedent and entitled to convey was not warranted by the evidence, and that the statements in the deeds that he was the sole surviving heir of the decedent were without probative effect, being inconsistent with the evidence and with the widow’s prior petition stating that other persons living in England were the sole heirs;
    That the title acquired on foreclosure was bad as the foreign heirs were not made parties;
    That there was a probable escheat as the foreign heirs were not shown to have made a declaration of their intention to become citizens as required by the statute;
    That the title of the State up.on escheat was not divested by a second foreclosure by advertisement brought in 1901;
    That under the circumstances equity would not compel the vendee to take such a doubtful title, and that a dismissal of his complaint was error.
    Appeal by the plaintiffs, Pincus Lowenfeld and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 5th day of January, 1906, upon the report of a referee dismissing the complaint upon the merits.
    
      H. Seymour Eisman [ Walter Lindner and Abraham, A. Greenhoot with him on the brief (Eisman & Levy, attorneys)], for the appellants.
    
      Yorke Allen [Allen & Sabine, attorneys], for the respondent.
   Clarke, J.:

This is an appeal from a judgment dismissing the complaint. The complaint alleges a contract entered into between the plaintiffs and defendant for the ¡purchase by the plaintiffs from the defendant of a certain* piece of real estate in the city of New York, the deposit of $1,500 thereon by the plaintiffs, the expenses of examination of title of $345, the due performance of all the conditions of the agreement by the plaintiffs, the inability on the part of the defendant to give a marketable title, and demands judgment for said sums and the establishment of a vendee’s lien on said premises for said amount. The answer alleges that the title is marketable, does not ask for specific performance, but demands a dismissal of the complaint. It appears that on July 5, 1860, Cornelius Fiske, being seized in fee simple absolute of said premises, conveyed with his wife, Amanda, the same in consideration of $300, by deed bearing said date and recorded on the 27th of July, 1860, to William Cobham. In order to secure $250 of said purchase money William Cobham, contemporaneously with the delivery of said deed, executed and delivered to Cornelius Fiske his purchase-money mortgage covering said premises to secure the payment of $250 on or before July 1, .1861, which mortgage was duly recorded July 28, 1860. Said mortgage contained a power authorizing said Fiske or his assigns to sell the mortgaged premises and all benefit and equity of redemption upon any default being made in the payment of the mortgage. Thereafter, by an instrument in writing dated May 13, 1863, and recorded July 30, 1864, Fiske assigned said mortgage and a bond accompanying the same to August Neidermeyer. On February 18, 1864, William Cobham died in the county of New York intestate, seized of said premises subject to said mortgage. On the 18th of March, 1864, Annie E. Cobham, the widow of said William, filed in the office of the surrogate of the county of New York a verified petition for administration upoii the estate of William Cobham in which she set forth “ that said deceased has left him surviving your petitioner, his widow, residing in said county, his mother, Loretta Cobham, his sister, Susanna Manning, wife of —- Manning, severally residing in England, his only next of kin.” Letters of administration upon the estate of William Cobham were issued to said Annie E. Cobham March 21, 1864, and have never been revoked. Prior to the 11th day of April, I860, $125 and no more had been paid On account of the principal sum due on said mortgage. • On or about the 11th day of April, 1865, said August Neidermeyer commenced in the Supreme Court against said “ Annie E. Cobham, individually and as the widow of William Cobham, deceased, and also as administratrix of the estate and effects of said William Cobham, deceased,” as sole defendant, an action for the foreclosure of said mortgage and prosecuted the same to a judgment of foreclosure and sale bearing date July 17, 1865, and entered with a judgment roll August 23, 1865. Pursuant to the terms of said judgment the sheriff assumed, on the 27th day of October, 1866, to sell said premises at public auction to said August Neidermeyer as highest bidder for the sum of $10, and on November 27, 1866, executed and delivered to Neidermeyer his deed, which was recorded May 18, 1867. After making said sale there remained due on said mortgage $306.33. No deficiency or other money, judgment has ever been entered against said Annie E. Cobham either individually or as administratrix therefor, and no action has been brought against her therefor. On May 6, 1867, Neidermeyer and Adelaide, his wife, for the expressed consideration of $600, conveyed said premises to John M. Beawer, by a bargain and sale deed dated on said day and recorded October 21,1868.

On or about July 25, 1867, one Charles Cobham, describing himself therein as Charles Cobham (single) sole surviving heir of William Cobham, deceased, of the City, County and State of New York,” made and delivered to said John M. Beawer, a quitclaim deed of said premises for the sum of $100, which deed, acknowledged before Calvin W. Smith, a commissioner of deeds, certifying among other things that Charles Cobham was known to him to be the individual described in and who executed the instrument, was recorded October 21, 1868. In an instrument of conveyance to said John M. Beawer by Annie E. Cobham of an adjoining piece of land, bearing date May 6, 1867, recorded October 21, 1868, said Annie E. Cobham joined with Charles Cobham, describing themselves as “ Annie E. Cobham of the City of New York and Charles Cobham sole surviving heirs of William Cobham, deceased,” which instrument was acknowledged before a commissioner of deeds who certified that the persons making such acknowledgment were known to him to be the individuals described in and who executed the foregoing instrument.

The learned referee has found: “ That said Charles Cobham was on said 25th day of July, 1867, the then sole surviving heir of said William Cobham, deceased, and that his said deed to Beawer conveyed to Beawer each and every outstanding light, title or interest of every kind then outs tanding in the heirs of William Cobham, deceased.”

This finding of fact is based solely upon 'the descriptions above set forth in the quitclaim deed dated July 25, 1867, and in the deed to the adjoining piece of property, and the certificates of acknowledgment thereto attached.

But two years before Annie E. Cobham had apparently never heard of Charles Cobham, because in her petition for administration she set forth that “ his mother Loretta Cobham, his sister Susanna Hanning, wife of-Manning severally residing in England ” were “ 1ns only next of kin.” This was verified by her on March 18, 1864. No one of the witnesses knew anything about Charles Cobham or ever heard of him. All who knew William Cobham and his wife Annie, testified that the family, as they knew it, consisted only of the husband and wife; that they had no children so far as they knew. Beawer, the grantee, testified that he was a mere conduit for Ditchett, the ancestor of defendant; that he did not know William Cobham or his wife Annie E. Cobham or Charles Cobham; that he never heard of Charles Cobham except as he had seen his name in these deeds. Joseph B. Dunkly, who was eighty-two years old, testified that he knew William Cobham and his wife Annie; that he remembered when Dr. Cobham died in the winter of 1864; that he was with him when he breathed his last and that he went to his funeral; that he knew William Cobham’s nationality ; that he was an Englishman; that Cobham told him so; that he knew him well, as well as his own brother; that his family consisted of himself and his wife, and that “Charles Cobham is a myth; I never heard the name mentioned before.” Mrs. De Grrushe, who was born in 1848, also testified that Dr. William Cobham told her he was from England and he used to write to his sister Susanna; “ he said that I was born on the same day as his sister — the 25th day of November — was born. * * * I never heard of Charles Cobham.”

I do not think that the declaration of Charles Cobham can have any probative effect, because he is not proved to have been a member of the family. The effect of Mrs. Cobham’s declaration is destroyed, because in her verified petition two years before she described the only heirs of William Cobham as his mother and sister, naming them, and says nothing of .Charles, and because in the deed in which her declaration as to him is invoked she describes herself as an heir to William, a statement obviously untrue. It • does not seem that the finding of fact is supported by the evidence. William Cobliam being proved to have been an Englishman, his sister and mother residing there at the time of his death, and his wife subsequently having gone to reside and having died in the island of Jamaica, one of the British possessions, and Charles Cobliam’s relation to him, if any there was, and his nationality, if he existed, being left absolutely in the dark, there is a grave question whether an escheat has not occurred.

We have then'a foreclosure which is confessedly bad, as the heirs were not made parties thereto, and a quitclaim deed which is more than doubtful and a probable escheat. It is true that a purchaser at a mortgage foreclosure sale, defective and void as against the owner of the equity of redemption because he was not made a party to the foreclosure action, becomes assignee of the mortgage, and if he lawfully enters into possession of the real estate purchased he becomes a mortgagee in possession (Robinson v. Ryan, 25 In. Y. 320; Winslow v. Ciarla, 47 id. 261; Miner v. Beelarnan, 50 id. 337; Thomas Mort. [2d ed.] chap. 8; Shriver v. Shriver, 86 N. Y. 575; Townshend v. Thomson, 139 id. 161), and could defend against the owner of the equity of redemption or his representatives any action except one for an accounting of the rents and profits and to redeem. Shriver v. Shriver (supra) was an action to relieve the purchaser at a partition sale. Chief Judge Folger held that the ten-year statute in which the owner of the equity could redeem was then still in force because, if the claimant had acquired a right it was not affected by legislative alteration. After stating that “ the facts of the case make out a continuous, uninterrupted, actual possession, beginning with an entry under claim of exclusive title founded on a written instrument and so kept up for over twenty years,” he proceeded : “ Though there may have been possession thus characterized for the requisite time, there may also -be circumstances that will prevent it becoming adverse. * * *

There is no proof that Mcllvaine (one of the owners not made a party to the foreclosure suit) left a will. We must assume that he died intestate. If his heirs at law in Scotland were aliens then any interest he left in the lands escheated to the State and the statute has not yet run against the State (Old Code, § 75new Code, § 362.) ” That section of the Code of Civil Procedure provides that: The people of the State will not sue a person for or with respect to real property, or the issues or profits thereof, by reason of the right or title of the people to the same, unless * * * the cause of action accrued within forty years before the action is commenced.” Chief Judge Folgeb further said : “ The only fact as to them made known to us is that they are residents, of Scotland. The probabilities are that they were subjects of the Queen of England and were aliens. If those probabilities were not in the case there is the possibility that some of them have been during the lapse of years since the death of Mcllveen under the disability of infancy or some other disability. * * * As a general rule a title which is open to judicial doubt is not a marketable title. * * * If, after the vendor has produced all the proofs that he can, a rational doubt still remains, a title is not marketable. * * * As between vendor and purchaser the court ought not to presume, unless it believes on circumstances strong enough to induce belief, that the fact is actually so. * * * The title of the vendors rests upon a presumption raised by lapse of time. But in conflict with that presumption, facts, not suspicions only, appear, raising a rational doubt whether a vendee relying upon that title may not be called upon to defend and to produce proof to explain or obviate those facts.” And the purchaser was not compelled to take. In Croner v. Cowdrey (139 N. Y. 476), Judge Earl said: “ As she died without heirs, whatever interest in real estate she possessed at her death at once escheated to the State, and the title thereto immediately vested in the State by operation of law. * * * But the mortgage. executed by Paul Pontau in his lifetime being valid, the title of the State by escheat was subject thereto, and if the State had been made a party to the foreclosure of that mortgage the title acquired under the foreclosure sale would have been perfect. But the persons who entered into possession under the foreclosure, defective as to the State because it was not made a party, became mortgagees in possession, and we think this defendant is in a position to claim the rights of a mortgagee in possession under the Pontau mortgage. * * * Therefore, the State could not maintain an action of ° ejectment based upon its title by escheat against the defendant to recover the possession of the lot, and the only right it has is to enforce its equity of redemption by an equitable action to redeem from the mortgage.”

In the case of McCormack v. Coddington, recently decided by the Court of Appeals (184 N. Y. 467), one Margaret Clifford, a naturalized citizen or resident alien, acquired certain real property by purchase in 1873. She died in 1882, and one-fifth of said property devolved by descent upon the brother, Patrick Casey, anon-resident alien of full age, subject to the life estate of Mary Casey, the mother of said Margaret Clifford. Patrick Casey died May 30, 1883, intestate, a non-resident alien, prior to the termination of the life estate of his mother, without having made or filed in the ofiice of the Secretary of State the deposition or affirmation of his intention to become a citizen as required by the 1st section of chapter 115 of the Laws of 1845, leaving as his heir at law Maria Booney, a citizen of the United States. The question was whether his estate passed to Maria Booney. The court said: Casey died without fulfilling the condition imposed upon him. He had failed to do the thing that was necessary to abrogate the rule of the common law and allow him to hold the title. At the moment of death he had no right to hold the title and had no right to pass it on to another. The title could not remain floating around in abeyance Under the statute it should not be allowed to pass to the heir, and, therefore, of necessity it reverted at once and without proceedings to the State. * * * His entry and possession and holding were lawful and could be terminated only by regular legal proceedings for the purpose of ascertaining whether he was an alien or not. But when he died, the title instantly and of necessity without any inquest of facts, escheated and vested in the State because the freehold could not be kept in abeyance, and because he was incompetent to transmit by hereditary descent.”

So that in addition to the bad foreclosure and the doubtful quitclaim deed, we have, with the doubts thrown around William Cob-ham’s heirs and their nationality, the question of a possible escheat to the State; for if the heirs of William Cobhain were those set forth in the petitions .for administration, the probabilities are for the purposes of this case as in Shriver v. Shriver (supra),that they were subjects of the Queen of England and were aliens.” If so, on their death without having made the declaration of their intention to become citizens, there was an escheat without office found. The mortgagees in possession evidently had doubts about their own title and attempted to cure it, and seem now to rely upon that attempt. In December, 1901, under the power of sale contained in the mortgage the defendant commenced proceedings to reforeclose said mortgage by advertisement thirty-six years after the foreclosure by action, and bought in the premises on the sale. As to this proceeding it seems sufficient to state that the People of the State entitled to' the property as upon an escheat are not bound thereby ; that while their title might be subject to the mortgage and their rights only that of redemption still as nullum tempus ocourrit reipublicce, and they are not named in section 2387 et seq. of the Code of Civil Procedure nor in section 379 thereof giving the right to redeem, they are not bound thereby.

It should be borne in mind that this is not an action in ejectment; it is an action to recover by a purchaser an amount paid upon deposit on a contract to purchase real property on the ground that he does not wish' to buy, there being reasonable doubts as to the title which the vendees have not resolved.

We think under familiar rules recently reasserted by this court (Salisbury v. Ryon, 105 App. Div. 445; Remsen v. Wingert, 112 id. 234) he should not be compelled against his will to take this title.

The judgment should be reversed and a new trial granted, with costs to appellant to abide the event.

O’Brien, P. J., Patterson, Ingraham and Laughlin, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event. Order filed. 
      
      sic.
     