
    Mary Cambreling et al., Resp’ts, v. Euphemia G. Purton et al., Resp’ts. In the Matter of the Application of Morris Littman, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 29, 1890.)
    
    1. Judicial sale—Defects in title—When purchaser required to COMPLETE.
    If the existence of the alleged fact which is supposed to clog the title is a possibility merely, or the alleged outstanding right is a very improbable and remote contingency which, according to ordinary experience, has no probable basis, the court' may compel the purchaser to complete his purchase, but such discretion should be carefully and guardedly exercised and used only where the case is free from reasonable doubt.
    2. Same—Presumption of death.
    In an action for partition one of the parties, G., who was an heir of the ' former owner, was not served except by publication. It appeared that C. was in wretched health, caused by habits of dissipation, and the doctor forbid him leaving his room, saying it was dangerous to do so, and that at most he could only live a year. He knew of his condition and said he hoped he would die on one of his sprees. He left the house on a stormy day in 1874, and has not since been heard from, and an administrator has been appointed of his estate. Held, that there was a strong probability of the death of 0., and that the purchaser at the sale should be required to complete.
    (Van Brunt, P. J., dissents.) '
    Appeal from an order of the special term denying the motion of Morris Littman, a purchaser at the partition sale in the above entitled action, to be relieved of his purchase and to have the moneys paid by him on account of the purchase price and his other expenses repaid to him.
    
      Page & Taft, for app’lt; John Vincent and William P. Quin, for resp’ts.
   Brady, J.

This is an appeal by the purchaser at a partition sale ordered in the above entitled action to be relieved from his purchase.

It appears that Alfred Colvill died intestate seized of the premises in question on the 6th of December, 1878, leaving him surviving a widow and five children, one of whom was John Oolvill.

In January, 1881, an action of partition was brought by Euphemia Gr. Purton v. Caroline W. Colvill and others for the partition of the intestate’s real estate. John Colvill was not personally served nor did he appear in the action, but the summons in reference to him was served by publication if then living.

There appeared upon this motion not only those facts, but also, that from 1865 to 1870 he was a man of very intemperate habits, having spells of hard drinking, which increased in frequency until his disappearance in 1874, when he seems to have become a ■chronic drunkard. On the occasions of his excessive drinking he disappeared from home and remained away from a week to a month. On his return he was generally prostrated and in a very demoralized condition; indeed, an examination by his physician in 1873, upon his return after one of his debauches, disclosed the fact that he was suffering from a number of organic diseases incident to alcoholic indulgences, namely, chronic disease of the liver, ■congestion of the kidneys and valvular disease of the heart; he had several severe attacks of inflammatory rheumatism and several hemorrhages from the stomach.

In 1873 he went to the Binghamton Inebriate Asylum, urged thereto by his physician and family, and remained there until the following January, when he returned to his father’s house although he had been advised by his physician to remain at the asylum for at least a year and a half and had promised to stay there a year. After his return from the asylum he went off on a long spree of several weeks and returned to his home in a very bad physical condition. He disappeared again in March, 1874, returning in the same condition and had a severe illness marked by two hemorrhages of the stomach; it was discovered that the condition of his kidneys had become decidedly worse, that his heart’s action was very much disturbed and that there was extreme congestion of the liver. He again disappeared in May, 1874, was gone a little longer than the usual time and returned apparently more prostrated than before. Dr. Strachan, who attended him, thought he might die at any moment and that if he went off on .another spree death would be inevitable. The doctor stated that he had never known of such severe hemorrhages of the stomach as Colvill then had and was astonished that the man did not die from them. His legs were badly swollen and the action of his heart was labored and intermittent as the result of blood poisoning from the condition of his kidneys. The attending physician gave instructions that it would be unsafe for him to go out of his room and would not allow his sister to see him, telling the family he was in a dangerous state and that if he got away he would not come Back alive, and farther, that under the most favorable circumstances he would not live a year. He had been warned by his physician that another attack would probably prove fatal and had expressed a desire to die, stating that he could not control his unfortunate habit and therefore had to go on the sprees in which he indulged.

In June, 1874, while he was seriously ill, he was advised of the death of a lady to whom he had been attached and it was reported ■engaged, and who had died during his previous spree. He was very much affected, by the intelligence and about two o clock in the afternoon of that day told his brother he had some business to attend to down town and would return in a couple of hours. His brother saw him enter a Fifth avenue stage; he wore a one buttoned gaiter and one shoe and left his valise packed at his house; it was raining. His departure from his father’s house under the circumstances subjected him to an exposure yrhich might kill him in twenty-four hours,"as established by the evidence of the physician, and others, in the case. He has never been seen or heard of since this disappearance; diligent efforts to find him were made by his family, but without success. He was twenty-nine years of age at the time of his final disappearance.

It furthermore appears that Euphemia Gr. Purton, one of the defendants, was duly appointed administratrix of the personal estate of John Colvill by the surrogate of this county, who confirmed the report of the referee, Sherman W. Knevals, in the proceedings for such appointment, and who decided that John Colvill died shortly after June, 1874, the date of his last disappearance.

The purchaser, in the affidavit accompanying his application to be relieved of his purchase, stated he had diligently endeavored to ascertain whether John Colvill was living at the time the action for partition was commenced, already mentioned, or at the time when the decree of sale was entered therein, or whether ,he had died since or was then living; but had been unable to obtain any information whatever concerning these matters. Here then is a very important array of facts and circumstances leading to no other result than that John Colvill was dead; indeed, that his last disappearance and his death followed close upon each other, if indeed they were not contemporaneous.; his condition then and the exposure to which he subjected himself resulting probably in his death within a very short time, possibly within a few hours after he left his residence. In all probability he was found dead, and asan unknown person subjected to burial without any discovery of his death by his relatives.

It is not necessary to indulge in any extended researches to ascertain what rules have governed the courts on a kindred question, particularly as in the case of Ferry et al. v. Sampson, 112 N. Y., 415; 21 N. Y. State Rep., 577, the court of appeals has established a rule applicable to the facts -and circumstances of this case, and calling upon this court in the exercise of its discretion to determine that a good and sufficient title may be given the purchaser notwithstanding a possible doubt as to the existence of John Colvill. It is there said that although a purchaser on a judicial sale is entitled to a marketable title, that is, a title free from reasonable doubts, and the courts are not disposed to compel a purchaser to.take title where a doubtful question of fact relating to an outstanding right is not concluded by the judgment under which the sale is made, nevertheless the rule is not absolute that a disputable fact not determined by the judgment is in every case a bar to the enforcement of the sale. It depends in some degree on discretion. If the existence of the alleged fact which is supposed to clog the title is a possibility merely, or the alleged outstanding right is a very improbable and remote contingency, which according to ordinary experience has no probable basis, the court may compel the purchaser in such a case to complete his purchase, suggesting that the discretion should be carefully and guardedly exercised, and used only where the case is free from reasonable doubt. In that case it was thought that the presumption of the death of Robert White Armstrong, an intestate, without leaving a widow or children surviving, was upon the facts disclosed very strong, amounting to scarcely less than certainty, and jet it was a case of his disappearance only, although he had not been out for quite a number of years and was a man in good health. Here it appears that John Oolvill was in wretched health, and who for a series of years had been industriously engaged in destroying it by excesses; who had declared himself to be so controlled by his habit of excessive drinking that he could not stop it, and who hoped that he would die in one of his so-called sprees. There is very little doubt that his wish in that respect was gratified, and that shortly after he was last seen he paid the penalty of his unfortunate and destructive habit

For these reasons it is thought the order appealed from was properly made, and that the purchaser should be required to complete his purchase.

Ordered accordingly.

Daniels, J., concurs.

Yan Brunt, P. J.

(dissenting.)—I cannot concur. I do not think that a purchaser should be required to take the risk of establishing the facts upon which the decision of this motion is founded, and which depend upon the evidence of witnesses which may not always be at his command. I, therefore, dissent.  