
    Maria Abate, Plaintiff, v. Raymond Bianco, Defendant.
    Second Department,
    March 24, 1911.
    Heal property — vendor and purchaser — death of vendee—equitable conversion — widow of vendee acquires no title — defect of parties.
    On the death of an assignee of a contract for the purchase of lands, his interest in the contract is regarded as realty. Hence, where there have been no letters of administration issued on his estate his widow, although she continued to pay installments of the purchase price due and has received a deed from the vendor, cannot convey a marketable title.
    Where neither the foreign heirs of the vendee, nor the State of New York to which the lands may have escheated, have been made parties to a submission of controversy between the widow of the vendee and a person to whom she has agreed to convey, the court will not decree an accounting and an adjustment pursuant thereto, nor determine the rights and interest of the parties.
    Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure.
    
      
      Charles D. Millard, for the plaintiff.
    
      Thomas M. Smith [Henry Martyn Baird, Jr., with him on the brief], for the defendant.
   Jenks, P. J.:

This is a submitted controversy to determine the marketability of title to certain real estate, situate in the county of Westchester, which the plaintiff has contracted to convey to the defendant. Materne, the owner in fee simple, contracted, in 1906, to sell realty, including these premises, to Miranda upon a partial .payment, and further payments by installments until a certain amount was paid, whereupon a deed was to be delivered upon the execution of a mortgage by Miranda for the balance of the consideration money. The contract was recorded, later in that year Miranda assigned so much of the contract as embraced these premises to the plaintiff’s husband, who performed the contract as to these premises until his death in December, 1907. That contract was also recorded. The said husband died intestate, leaving him surviving the plaintiff, his widow, a resident of the said county of Westchester, and a mother and a sister who resided in Italy and were subjects of its king.

No administration or other proceedings were had upon the estate of the said husband of the plaintiff, but his widow continued to pay the installments on said contract as assigned. In 1908 Materne executed and delivered a deed of the premises to plaintiff, and thereupon the plaintiff contracted with defendant to sell the premises and to execute a.full warranty deed thereof. The defendant is now ready to perform upon delivery of a good and sufficient deed conveying a marketable title. The plaintiff contends that she is vested with such title; the defendant contends that she cannot convey a marketable title because the interest of her said husband in the contract was real estate descendible to his heirs, or in the event that alienage prevented inheritance, then such interest escheated to the People of this State.

I think that the interest of the plaintiff’s husband in the contract at his death must be regarded as real estate. (Hathaway v. Payne, 34 N. Y. 92, 103; Palmer v. Morrison, 104 id. 132; Gerard Titles, 499.) But the only parties to this controversy are the parties to the present contract for conveyance. The heirs or the State of New York not here represented have an interest, in the property, and whether such interest be in one or the other, the plaintiff cannot, so far as the facts submitted show, deliver a marketable title. In this condition of the record this court should adjudge nothing beyond the inability of the plaintiff to give a marketable title. The matter of an accounting and adjustment pursuant thereto, as well as definite ascertainment of rights and interests, should await the determination of the court in a proper action taken therefor.

Burr, Thomas, Carr and Woodward, JJ., concurred.

Judgment for defendant, without costs, in accordance with the terms of the submission.  