
    Andrew Toole, Resp’t, v. James Toole et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed January 29, 1889.)
    
    Title—Partition—Purchaser at judicial sale—When title doubtful —When purchaser entitle uto be relieved—Aliens—Burden of proof—Parties.
    Where, in partition proceedings, the proof in the record which disclosed the existence of other persons, not made parties to the action, who might have an interest, did not sufficiently or conclusively, as against them, establish the incapacity of those persons, as aliens, to have or acquire siich an interest, Held, that the title was not free from doubt, and a purchaser at a judicial sale, directed in the action, was entitled to he relieved from his contract; the burden of establishing the fact of alienage and incapacity being upon the plaintiff in partition, and not upon the purchaser.
    
      B&nno Loewy, for app’lts; Lewis Johnston, for resp’t.
    
      
       Reversing 16 N. Y. State Rep., 1016; see also 14 N. Y. State Rep., 984.
    
   Gray, J.

It is well settled by the decisions that a purchaser at a judicial sale should not be compelled by the courts to accept a doubtful title. Where irregularities or defects exist in the proceedings, which require further or other proceedings in order to cure them, the objection of an intending purchaser, based upon their existence, should not be overruled and his contract of purchase be directed to be completed. His contract called for a good title, and if it w:as bad or doubtful he should, on his application, be relieved from completing the purchase. In these partition proceedings the absence of parties was shown who were of the.same blood and kinship with the next of kin of Mary Hanley, deceased, whose estate was the subject of partition. If they were incapacitated by reason of alienage from having an interest in the property to be partitioned or sold, that was a fact possible of being conclusively established, by bringing them into the proceeding and trying out the question of their alienage by due process of law. A judgment obtained as the result of such an action would set at rest forever any existing or possible claims. The proceeding is one in rem., the subject being the partition of the real estate or the distribution of the proceeds of the sale.

The general term concede, in their opinion, that the purchaser, at the judicial sale in question, was not offered a title free from' doubt, and that concession seems fatal to their order, by which he is directed to complete his purchase. We agree with that court that the proof, in the record of the partition proceedings, which discloses the existence of other persons not made parties to the action who might have an interest, did not sufficiently, or conclusively as against them, establish the incapacity of those persons as aliens to have or acquire such an interest.

•The court should have granted the application of the appellant to be relieved from his contract, instead of ordering a further continuance of the proceedings in the action, by a reference to take proof upon the capacity or incapacity of the absent parties to take and- hold the real estate by reason of their alleged alienage. The burden of establishing the fact of alienage and of incapacity "was upon the plaintiff in partition and not upon the purchaser. He had •the right to assume that the decree, and sale thereunder, conferred hot merely a good legal title, but a title not open to further question or reasonable dispute by other persons who stood in the same degree of kinship to the deceased. By the terms of his contract he was entitled to a deed on a day fixed, and he was then ready to perform. That he was right in his objection to the title at that time the general term acknowledged, and that being the case they should not have changed his contract and hold him to be bound to performance indefinitely, or pending further proceedings to perfect title.

The sale was in June, 1887, and the deed should have been delivered in "July following. In January following the general term ordered the further continuance of the proceedings before a referee, and then, in the following ■May or June, after a delay of nearly a year, ordered the purchaser to complete his purchase. There is an absence of any proof as to any damage occasioned.by the delay, and it is unnecessary, if not ‘improper, to indulge in presumptions as to the existence of any.

. We rest our decision upon the ground that, for reasons we have given, the title offered was not one free from doubt and was fairly open to the objection made.

. The orders of the-general and specie;! terms should be reversed, and Koehler, this appellant, be relieved from his purchase and repaid his deposit upon the sale, with interest thereon from July 3, 1887, and all his proper and reasonable expenses in examining the title, with costs ■ herein at special and general terms and in this court.

■. All concur.  