
    Kopp v. Kopp et al.
    
    
      (Supreme Court, General Term, First Department.
    
    May 18, 1888.)
    Partition—Sale of Land under Lease—Failure to Make Lessee a Party—Rights of Purchaser.
    A purchaser at a sale under a decree in an action for partition between the heirs at law of one who died seized of the property will not he compelled to complete his purchase if the premises are in possession of a tenant for five years, who is not a party to the action, even though the lease was made by the widow without any authority in law or otherwise to make it, and was therefore void.
    Appeal from special term, New York county; Abraham B. Lawrence, Justice.
    Action by Julius Kopp against Maria Magdalena Kopp, Caroline Mathes, and Edward Mathes, her husband, Elizabeth Wimmer, and Herman Wimmer, her husband, Charles Kopp, and Pauline Kopp, for the partition of certain premises of which the father of plaintiff died seized. The defendant Maria Magdalena Kopp is the widow, and the defendants Caroline Mathes, Elizabeth Wimmer, Charles and Pauline Kopp are the children and only heirs at law, of decedent. The property was sold at public auction, and John B. Foley became the purchaser, but declined to complete his purchase, on the grounds .(1) that the property was incumbered by a lease made by Lena Kopp (the widow) to one Charles H. Lilly, and still having nearly four years to run, the lessee being in possession thereunder; and (2) that the purchaser was induced to buy the property by the misrepresentations .of the auctioneer that the property brought a rental of $720 a year, when in fact it produced only $216. There was a conflict in the affidavits as to the statements made by the auctioneer; the purchaser and two other affiants swearing to a distinct statement that the property brought in a rental of $60 a month, while the auctioneer And his brother swore that the only statement in respect thereto, made by him, was to the effect that he understood that the premises would probably rent for about $60 a month. From the order entered on plaintiff’s motion, requiring Foley to complete his purchase, and directing a resale for his account in ■case of default, Foley appeals.
    Argued before Van Brunt, P. J., and Brady and Daniels, JJ.
    
      Thomas Darlington, for appellant. A. P. Hilton, for respondent.
   Van Brunt, P. J.

There does not seem to be any ground for interference with the order of the court below because of the misrepresentations claimed to have been made at the sale. The objection of the purchaser, however, that the premises are in the possession of a tenant under a lease for five years, who is not a party to the action, seems to be fatal to the right of the court to compel him to complete. The purchaser is not bound to take the title unless he can be put into possession under the decree of sale. In the case at bar the party in possession is not a party to the action, and is not bound by the provisions of the decree. The purchaser, to obtain possession, must bring ejectment in order to oust this tenant. It is no answer to this objection that the lease under which the tenant holds possession was not made by any person having authority in law or otherwise to make it, and was therefore void. The tenant has the right to be heard upon this question, and a purchaser should not be compelled to take title, and then be called upon to fight for the possession with a possessor not a party to the action, and therefore not bound by the decree. The parties who conducted this action could easily have obviated this difficulty by making the person in possession a party to the action, which should always be done in foreclosure and partition. If the tenant had been a party, the purchaser could have ejected him at once by virtue of the provisions of the decree requiring possession to be surrendered. The purchaser, however, in the case at bar, cannot obtain possession except by independent proceedings, and he is not bound to run the hazard of defeat in such procedings; neither is he bound to incur the expense.

It is urged that, the tenant being merely a squatter, he could be ejected, summarily under subdivision 4 of section 2232 of the Code. This devolves the burden upon the purchaser to establish the fact that the tenant is merely a squatter by independent proceedings, which task he is not bound to undertake. A purchaser must be able to get possession by virtue of the decree, and, if independent proceedings are necessary, he should not be required to take. The order appealed from should be reversed, with $10 costs, and disbursements, and the motion made denied.

Daniels and Brady, JJ. concurring.  