
    Mary Harrigan, Appellant, v. Margaret Golden and Others, Defendants, Impleaded with Annie Graham and Ellen Harrigan, Appellants. George Calleron, Purchaser, Respondent.
    
      Judicial sale in partition — when the title passes — effect of the burning of a building on the premises, after the sale and before its completion.
    
    A purchaser at a judicial sale gains no title, either legal or equitable, until the date fixed for the delivery of the deed.
    Where, after the purchaser at a partition sale has signed a memorandum of sale and paid ten per cent of the purchase price, but before .the date fixed for the closing of the sale, a building situate upon the premises is destroyed by fire, thus causing a depreciation in the rental value of the property of from eighty to ninety-six dollars per year, and the local authorities forbid the erection of another building to take the place of the one so destroyed, the purchaser should not be compelled to complete his purchase.
    Appeal by the plaintiff, Mary Harrigan, and by the defendants, Annie Graham and Ellen Harrigan, from an order of the Supreme Court, made at the Kings County Special Teym and entered in the office of the clerk of the county of Kings on the 19th day of April, 1899, denying the plaintiff’s motion for an order requiring George Calieron, a purchaser of part of the premises sold at a partition sale had in the above-entitled action, to complete his purchase.
    
      
      A. F. Van Thun, Jr., for the appellants.
    
      Edward V. Slauson [Hamilton Anderson with him on the brief], for the respondent.
   Woodward, J.:

We are of opinion that the order appealed from should be affirmed. It is clear that the weight of authority is in favor of the proposition that a purchaser at a judicial sale gains no title, either legal or equitable, until the date fixed for the transfer of the deed. (Cheney v. Woodruff, 45 N. Y. 98; Robbins v. Arendt, 4 Misc. Rep. 196; Mitchell v. Bartlett, 51 N. Y. 441.)

In the matter now before us, the purchaser signed a memorandum, paying ten per cent of the purchase price, in which he agreed to pay the remainder, or $3,285, on the 9th of March, 1899, that date being fixed as the time when the referee’s deed should be ready for delivery. On the twenty-eighth day of February, intermediate the day of sale and the time for closing the title, a building, which was upon the property when the sale was made, was burned to such an extent that the public authorities ordered its demolition, at the same time refusing to permit the construction of a building to take its place, causing a depreciation in the rental value of the property of $80 to $96 per year. The referee was not, therefore, in a position to' give the purchaser a title to- all the property which he undertook to sell, and which the purchaser rightfully supposed he was to receive (Riggs v. Pursell, 66 N. Y. 193, 198), and it -would be doing him an injustice to compel him to accept and pay for this property, a- portion of which had passed beyond the control of the referee before the time fixed for the transfer of the title. The purchaser had acquired no title at the time of the fire, and he cannot be compelled to take title to less property than was involved in the original sale. (Goldman v. Rosenberg, 116 N. Y. 78, 86.)

The order appealed from should be affirmed, with costs.

All concurred.

Order affirmed, with ten dollars costs and disbursements.  