
    William P. Casey and Others, Respondents, v. Mary E. Casey, Respondent, Impleaded with Others; Pincus Lowenfeld, Purchaser, Appellant.
    
      Marketable title—parties named as defendants. in a partition suit if living, and if dead, their heirs and devisees—investment of the shares of unknown parties.
    
    In an action of partition three persons, named Powers,, were named as parties • defendant, if living, and if all or either of them were deceased, his' or her devisees, heirs at law or next of kin, who were unknown to the plaintiffs, and also .all persons or owners unknown to plaintiffs, having or claiming any interest in or lien upon the lands and premises sought to he partitioned.
    
      Held, that property rights could npt he extinguished by making, persons parties to an action, and if dead, their devisees, heirs at law and next of kin, and by procuring an adjudication that such parties were dead and had died without issue.
    In such a case a purchaser at the partition sale does'not acquire a marketable title — certainly where the evidence in the record does not show that all the Powers were dead and died without issue.
    
      
      Semble, that in order to cut off the rights of those made defendants to a partition suit as unknown parties, the requirements of section 1583 of the Code of Civil Procedure, that the judgment must direct their portion of the proceeds of sale to be invested for their benefit, must be complied with.
    Appeal, by Pincus Lowenfeld, purchaser at the sale in the above-entitled action, from an order of the Supreme Court, made at the Yew York Special Term and entered in the office of the clerk of' the county of Yew York on the 11th day of January, 1897, compolling him to complete his purchase.
    The title of this action was as follows:
    “ Superior Court of the City of Yew York.
    “ William P. Casey, Thomas L. Casey and Catherine A. Casey, Plaintiffs, v. Mary E. Casey, William Powers, if living, and
    -Powers,, his wife, if any (who. as well as whose name is unknown to the plaintiffs, and the widow, devisees, heirs at law and next of kin of said William Powers, if deceased, who are unknown to plaintiffs); David Powers and -.Powers,- his wife, if any (who as well as whose name is unknown to plaintiffs, and -the widow, devisees, heirs at law and next of kin of said David Powers, if deceased, who are unknown to plaintiffs); Mary Powers, if living, and ---, her husband, if any (who as well as whose name is unknown to plaintiffs, and the devisees, heirs at law and next of kin of said Mary Powers, if deceased, .who are unknown to plaintiffs), and all persons or owners unknown, having or claiming any interest in or lien upon the lands and premises sought to be partioned in. this action, Defendants.”
    
      C. P. Northrop and John M. Bowers, for the appellant.
    
      James Kearney, for the respondents.
   Van Brunt, P. J.:

This action was brought for the' partition .or sale of certain.real property situate in the city of Yew York. Amongst others who were made defendants were William Powers, if living; David Powers, if living, and Mary Powers, if living, and if all, or either of them, were deceased, his or her devisees, heirs at law or next of kin who were unknown to the plaintiffs; and also all persons or owners unknown to plaintiffs having or claiming any interest in or lien upon the lands and premises sought to be partitioned.in this action.

The defendant's Powers and their devisees, heirs at law and next of kin were attempted to. be served with summons by an order of publication. The only answer served seems to be that of Mary E. Casey, who denied the existence of the Powers. The case was referred by consent to a referee, who reported that the defendants William Powers, David Powers and Mary Powers were dead in the year 1874, and that.they left them surviving no father or mother, husband or wife, child or children, or the descendants of any deceased child or children, brother or. sister, or the descendants of any deceased brother or sister, etc. An interlocutory judgment was thereupon entered declaring that the plaintiffs and the defendant Mary E. Casey were entitled as tenants in common to the whole of the premises set forth in the complaint, and directing a sale thereof. A sale of the premises having been made, a final decree in partition was entered directing the referee to deliver deeds to the respective purchasers, and after payment of expenses and costs to pay the balance of the proceeds of sale to the plaintiffs and the defendant Mary E. Casey.

The appellant herein, who was the purchaser at such sale, having refused to take title to. the premises, a motion was made to compel him to complete, which motion was granted, and from the order thereupon entered this appeal is taken. The ground upon which the purchaser objected to take the title was that there was no evidence -whatever of the death of the Powers, or that they died without issue. But it was held, upon the motion to compel the purchaser to complete, that the court had jurisdiction of the subject-matter and of the parties, and that, therefore, its judgment was conclusive as to whatever was therein adjudicated; and that the purchaser’s title would not be affected by any irregularity or defects, not going to the question of jurisdiction.

It does not seem to us possible that rights can be extinguished by making persons parties to an action, and if dead their devisees, heirs at law and next of kin, and procuring an adjudication that such parties are dead and have died without issue. If the alleged parties are dead they cannot be parties to the action. If a person is made a defendant as an unknown person, it is an admission upon the record of his existence, and'he cannot be obliterated from the record by.being declared dead by the judgment. This condition is assumed by the provisions of section 1582 of' the Code of Civil Procedure, which provides that, where a person has been made a defendant as an unknown person, the court must direct his portion to be invested in permanent ■ securities at interest for his-benefit until claimed by him or his legal representatives.

Neither can this provision of the Code be repealed by a declaration in the judgment that the person made defendant was improperly so made because dead. The most favorable view which can be taken of the sufficiency of the title of the premises which the order appealed from has directed the appellant to take is that there is evidence enough in this record to show that all these persons are dead and that they died without issue. It is perfectly clear that -the evidence is entirely insufficient to sustain any such proposition. That there were such persons as the Powers in existence, who were children of a sister, is manifest both from the proceedings in the surrogate’s office upon the probate of the will -of Thomas Ca,sey and from the evidence of some of the witnesses, in regard to family traditions, of their existence. There is no distinct evidence as to where they lived or whether they were married or had children dr what has become of them. And to conclude that they are dead and that they have died without issue, seems to be an assumption pure and simple. There is no evidence that they have ceased- to communicate with those with whom they were accustomed to communicate or that they have left the place in which they were accustomed to live and have not been heard from; nor is there any fact tending to show that anything has been discontinued which had existed during the lives of these parties. It is clear that, without some proof, death cannot .be presumed.

. We are of opinion, therefore, that the title was not such as a purchaser should be compelled to. take, and the order should be reversed, with ten dollars costs and disbursements arid the motion denied, with ten dollars costs.

Rumsey and Williams^ JJ., concurred; Patterson, J., concurred in result. '

Patterson, J. (concurring):

I concur in the reversal of the order on the ground that this title is doubtful, and a purchaser at a judicial sale should not be required to take it under the circumstances. (Vought v. Williams, 120 N. Y. 253.)

It is very questionable if all the parties were before the court in such a way as'to give it jurisdiction to extinguish the interest of the Powers or their heirs. But if they were, then, under section 1572 of the Code of Civil Procedure, the judgment, to cut off their interests, must provide for the protection of their rights as if they' were known and had appeared; and, under section 1582 of the Code of Civil Procedure, the judgment must direct their portion of the proceeds of the property to be invested for their benefit until claimed by them or their legal representatives.

Ingraham, J., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  