
    George D. Sherman, Respondent, v. Richard F. Carman and Others, Defendants, Impleaded with The People of the State of New York, Appellant.
    First Department,
    July 9, 1915.
    Real property — action to register title — pleading — parties — sufficiency of summons — adverse possession — sufficiency of affidavits as to title — removal of cloud upon title — extinguishment of lien or legal claim to property.
    A summons in an action under article 12 of the Real Property Law to reg-. ister the title to certain real property, which does not contain the name of the holder of the record title, nor the heirs of such person, if any,
    
      is insufficient. Such persons are not included in the omnibus clause of the summons and complaint under the description “ all other persons, if any, having any right or interest in or lien upon the property affected by this action or any part thereof.”
    Evidence held, insufficient to sustain a finding of adverse possession. Affidavits presenting mere conclusions on the part of the affiants are insufficient to establish that an apparent holder of the record title died without leaving heirs at law.
    In an action under article 12 of the Real Property Law, an apparent cloud upon the title to real estate may be removed, but a valid claim to such real estate cannot be extinguished or destroyed.
    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 New York on the 4th day of June, 1914, upon the decision of the court after a trial at the New York Special Term.
    
      Robert P. Beyer, Deputy Attorney-General [Egburt E. Woodbury, Attorney-General], for the appellant.
    
      Gilbert Ray Hawes, for the respondent.
   Per Curiam:

Action under article 12 of the Beal Property Law (Consol. Laws, chap. 50 [Laws of 1909, chap. 52], as amd. by Laws of 1910, chap. 627), to register in the plaintiff the title to certain real property, No. 415 West One Hundred and Fiftieth street, in the city of New York. After trial at Special Term, judgment was entered in favor of the plaintiff, with costs against the People. From this judgment the Attorney-General appeals.

On the 18th of June, 1851, the holder of the record title to the premises in question conveyed the same to one Edward Welsh, and there is nothing in the record to show that his title has ever been divested. On the 15th of September, 1870, Margaret Welsh, the wife of Edward Welsh, conveyed the premises to one David Duane.

It is contended on the part of the respondent that the affidavits of certain neighbors of Edward Welsh, taken in 1889, show that in the opinion of the respective affiants Edward Welsh died without heirs-at-law and leaving him surviving only his widow, Margaret Welsh, and, therefore, the title to the property escheated to the State of New York. The trouble in this respect is that the affidavits presented mere conclusions on the part of 'the affiants and are wholly insufficient to establish, as a fact, that Edward Welsh died without leaving heirs-at-law. It appears that in 1871, by an act of the Legislature (Laws of 1871, chap. 319), the State of New York released any interest which it might have in the premises to David Duane; and for that reason it is urged the title of the plaintiff is good and he is entitled to have the same registered under the statute. If Edward Welsh left heirs-at-law, then the title did not escheat to the State and the act of the Legislature transferred no title because the State had none.

Neither Edward Welsh, nor those claiming under him, were made parties to the action. . The plaintiff, however, contends that they are included in the omnibus clause of the summons and complaint under the description “All other persons, if any, having any right or interest in, or lien upon, the property affected by this action, or any part thereof.” Section 379 of the Real Property Law (as amd. supra) provides that the summons and complaint “ shall name as parties to the action all persons 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.” The section further provides that the complaint shall contain the names and post office addresses of the defendants, as far as known, or can reasonably be ascertained, together with a description of those whose names are unknown, as prescribed by section 451 of the Code of Civil Procedure; that is, such a description as will identify the defendants and serve to notify them of the pendency of the action.

In actions brought to register titles, the object and purpose of the statute must always be kept in mind. It is to register good titles and not, by judicial decree, cure bad ones. (Partenfelder v. People, 211 N. Y. 355.) The statute itself provides that “ No judgment of registration shall be made, unless the court is satisfied that the title to be registered accordingly is free from reasonable doubt.” (§ 391, as amd. supra.) “It,” says the court in Barkenthien v. People (213 N. Y. 554), “ was not the intent of the statute, as seems to be supposed, that the title of a defendant who, for example, defaults after substituted service, should be transferred by the court to the plaintiff. If properly administered, the statute will serve a useful purpose. But extreme care must be exercised by the courts in granting judgments which are to be conclusive on all the world.”

In an action under this statute an apparent cloud upon the title to real estate may be removed, but a valid lien upon, or legal claim to such real estate cannot be extinguished or destroyed in this way.

A question quite similar to the one here presented was recently before the court in Belmont Powell Holding Co. v. Serial Building Loan & Savings Institution (167 App. Div. 124). In disposing of the same the court said: “ The power to register a title which may be conclusive against absent heirs or others having interests in the property should not be permitted to do away with the usual precautions to give notice to such heirs. Here the name of White was not in the summons. Had it so appeared, it might reach the attention of some of the family. With that essential wholly left out, and no other notice than the general designation of all other persons,’ we cannot say that the title of such absentees has been transferred over to the plaintiff by this proceeding by publication.”

In the case before us the record title, as indicated, is in Edward Welsh, and yet the name of Welsh does not appear in the summons. The publication gave no notice whatever of the pendency of the action to the heirs of Welsh, if any, unless they are included in the clause of “all other persons, if any, having any right or interest.”

We do not think this is a sufficient description of such heirs, nor do we think there is sufficient evidence to sustain the finding of adverse possession, if such finding be deemed one of fact. (See Partenfelder v. People, 157 App. Div. 462; affd.,. 211 N. Y. 355; City & Suburban Homes Co. v. People, 157 App. Div. 459.)

Upon the ground, therefore, that the heirs of Edward Welsh, of any, were not named in the summons and that the evidence 'of adverse possession is insufficient, the judgment is reversed, with costs, and the complaint dismissed, with costs.

Present —Ingraham, P. J., McLaughlin, Laughlin, Clarke and Scott, JJ., concurred.

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