
    RECOR v. BLACKBURN et al.
    (Supreme Court, General Term, Second Department.
    July 28, 1893.)
    1. Judicial Sale—Defective Title.
    In an action for partition of land claimed under the will of J., the decree ordered a sale, and decided that the title was in the devisees of J. Held, that the purchaser at the sale would not be compelled to take the title where it appeared that J.’s husband died seised of the land, and that her title depended entirely on a release by the legislature of the interest of the state, subject to the rights of her husband's heirs, and it was not proven that the husband died an alien, or did not have heirs who could inherit the land.
    2. Same—Conditions op Sale.
    The fact that land is sold subject to a condition without authority in the decree of sale, and the condition is signed by the purchaser’s son without understanding its force and effect, will not oblige the purchaser to-take the title.
    Appeal from special term, Kings county.
    Action by Mary Ann Eecor against Charles Blackburn and others for partition. There was a decree for partition, and the land was sold to Levi Blumenon. From an order compelling Levi Blumenon to complete his purchase, he appeals.
    Reversed.
    Argued before BARNARD, P. J., and DYKMAN, J.
    Beams & Brenner, for appellants.
    William C. Kellogg, for respondent.
   BARNARD, P. J.

This is an action for partition and sale of lands. The title sold is derived under the will of Jane Richards. She was the wife of James Richards, who died seised of the same in December, 1884. The legislature, by chapter 170, Laws 1886, released the interest of the state of New York in the lands to Jane Richards, the widow, subject to the rights of the heirs of James Richards therein. The report of the referee finds that James Richards was never made a citizen of the United States, and that he left no child or children nor heirs at law nor next of kin, except the widow. There is no return of the evidence on which the fact of alienage is found, nor any testimony showing what heirs at law James Richards left. The decree ordered the premises sold; decided that the devisees of Jane Richards owned the title. The referee sold the land, subject to the claim of the heirs of James Richards, although this direction was not contained in the decree. One Levi Blumenon became the purchaser, at the sum of .$1,800, and he declines to take the title. The papers show no title out of James Richards. The release of the state did not give a title as against the heirs of James Richards. The affidavit of Cahill tends strongly to show that there is a brother of James Richards living in England, who corresponded with his brother up to a period shortly before James Richards’ death. As against this brother, the act granting title to the widow is inoperative. The purchaser is entitled to a merchantable title. Fleming v. Burnham, 100 N. Y. 1, 2 N. E. Rep. 905. This is not such a title. It is doubtful, at least, as it is unproven, that James Richards^ died an ah on. It is more than probable that he has a brother living who can inherit under chapter 38, Laws 1875.

The conditions of sale should have no binding effect. The wife was directed to sell a good title, and the conditions were signed by the purchaser’s son, without understanding its force and effect. He should be relieved if he did not get a good title, notwithstanding the conditions of sale. The title is not one which will sell. It demands proof and explanation. The court will not force a poor title on a purchaser who is holding only by a condition of sale unauthorized by the decree in so vital a particular. The oraer should be reversed, with costs and disbursements, and the motion denied, with costs.  