
    Mary Cambrelung et al., Pl’ffs, v. Euphemia C. Purton et al., Def'ts.
    
    
      (Court of Appeals,
    
    
      Filed February 24, 1891.)
    
    Judicial sale—-Defect nr title.
    The purchaser of certain property at partition sale asked to be relieved from his contract on the ground that a son of the former owner had not been served. Said son was a confirmed drunkard with accompanying diseases and in March, 1874, having two violent hemorrhages of the stomach, the physician who attended him stated that he might die any moment, and that.if he went upon another spree death would be inevitable, and under the most favorable circumstances he could not live a year. In June, 1874, he left the house while it was raining and was subjected to an exposure which the physician testified was liable to produce his death in a very short time, and was never seen again though diligent inquiry was made. Held, that the liability of his being alive or having left a widow or heirs was such a remote and improbable contingency and was such a slender possibility only that it was a proper case for the court in the exercise of a sound discretion to compel the purchaser to complete his purchase.
    Appeal from judgment of the supreme court, general term, first department, affirming order of special term denying motion of purchaser at partition sale to be relieved of his purchase and to have the moneys paid by him on account of purchase, etc., returned.
    
      
      Henry W. Taft, for app’lts ; John Vincent and William P. Quin, for resp’ts.
    
      
       Affirming 84 N. Y. State Rep., 908.
    
   O’Brien, J.

This was an action to partition certain real estate in the city of New York and resulted in a judgment directing the sale of the same. The sale was conducted by a referee under the decree and Morris Littman became the purchaser. He afterwards applied to the court to be relieved from his bid and to have refunded to him the ten per cent of the purchase money, auctioneer’s fees and expenses of searching the title, which he had paid. This application was based upon an alleged defect in the title. The special term denied the application, and that order having been affirmed at general term he appeals to this court The premises embraced in the partitipn action and which were sold to the appellant were owned by'Alfred Colville at the time of his death, December 6, 1878. He died intestate and the title passed to his children. The children who were known to be alive are all named as parties to the action and in the decree under which the sale was made. The-only question that arises in regard to the title relates to the interest of John Colville, one of the children, who disappeared from his father’s house in New York in June, 1874, and since then has not been seen or heard from, and the order appealed from is based upon the conclusion that he died without children, unmarried and intestate, and that his interest in the real estate descended to his brothers and sisters surviving who were alive and parties to the decree. The premises were purchased by the appellant for ■ $24,700, and are located on Madison avenue. The purchaser in his application to be relieved states that he is informed and believes that the referee is not able to convey and deliver to him a good and marketable title.

The only question involved in this appeal is whether the facts presented to the court in opposition to the application to be relieved from the purchase were of such a character as to warrant the conclusion that the title was good and marketable beyond all reasonable doubt. John Colville had resided with his father at. 251 Fifth avenue, in the city of New York, up to the time of his final disappearance in June, 1874, and was then twenty-nine years of age. From the affidavits of his brother, sister and two or three other relatives of the family and the family physician, read in opposition to the application of the appellant, the following facts appear: From 1865 to 1870 he was very intemperate and had spells of very hard drinking about every three months. On these-occasions he disappeared from home and remained away from a week to a month, and on his return he was generally prostrated and in a very weak and nervous condition. The family physician discovered from an examination in 1878 that he was suffering from a number of organic diseases incident to indulgence in excessive drinking", such as chronic diseases of the liver, congestion of the kidneys and valvular disease of the heart.- In 1878, at the advice of the physician, he went to the Binghamton Inebriate Asylum and remaine.d there for some time, but returned home against the advice of the physician and his family. On his return he indulged in frequent and prolonged debauches which lasted sometimes several weeks. In March, 1874, after one of these sprees, he had a severe illness marked by two violent hemorrhages of the stomach. It was discovered that his kidneys had become much worse, that there was extreme congestion of the liver and that the action of the heart was greatly disturbed. In May, 1874, he again disappeared, was gone about the usual time and returned apparently more prostrate than ever before. The physician who attended him and who makes the affidavit thought he might die at any moment and that if he went upon another spree death would be inevitable. The physician states that he had never known such severe hemorrhages of the stomach and was astonished that the man did not die from them. His legs were badly swollen and the action of the heart was labored and. intermittent as the result of blood poisoning from the condition of the kidneys. ¡

The physician was of the opinion then and so informed the family that under the most favorable circumstances he could not live a year. He gave instructions that it would be unsafe for him, to go out of his room and would not allow his sister to see him and expressed the opinion then that if he got away again he would not come back alive. The physician warned Colville that another attack would prove probably fatal, but he expressed a desire to die as he could not control his passion for drinking. 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., He was very much affected by this information and about two o’clock in the afternoon of that day he told his brother that 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 a shoe and left his valise packed in the house. It was raining and he was subjected to an exposure which from the testimony of the physician and others in the case was liable to produce his death in a very short time. He has never been seen or heard of since this disappearance, though his family and friends have made diligent inquiry for and efforts to find him.

The father, it seems, left a considerable personal estate in which John would, if alive, share with the other children. One of his sisters .in June, 1882, applied to the surrogate to be appointed administratrix of the estate upon the assumption that he was dead. The surrogate appointed a referee to take proof in regard to the death of John and he reported the facts above stated and other facts and found that he died shortly after his disappearance in June, 1874. The surrogate confirmed the report and appointed Mrs. Purton, one of the sisters, administratrix in January, 1883. She administered and distributed John’s personal estate .and was discharged.

In an action to partition or sell the house on Fifth avenue, brought by one of the heirs, the summons was published as against John, the property was sold for $100,000, and after sale the question arose as to the distribution of the proceeds. The court, in that action, found that John was dead, and directed that his brother and sisters, parties to this action, were entitled to the proceeds of the sale. There is no dispute as to these facts, but the purchaser nevertheless claims that John Colville may have survived his father, from whom the title to the property descended, and then died, leaving a widow or children surviving or a last will. Ho objection is made, as we understand, to the title •on the ground that John may be alive. It is assumed that this position would be sufficiently answered by the fact that service of the summons by publication was made upon him in the action. It is well settled that a purchaser at a judicial sale is entitled to a marketable title and that has been defined to be a title free from reasonable doubt. A purchaser will not be compelled to take title where a doubtful question of fact relating to an outstanding .right is not concluded by the judgment under which the sale was made. Fleming v. Burnham, 100 N. Y., 1.

But this rule will not operate in every case to bar the enforcement of the sale. If the existence of the alleged fact which is •claimed or supposed to constitute a defect in or cloud upon the title is a mere possibility, or the alleged outstanding right is but ■a very improbable or remote contingency, which, according to •ordinary experience, has no probable.basis, the court may, in the exercise of a sound discretion, compel the purchaser to complete his purchase. It has been well said that this discretionary power is to be carefully and guardedly exercised and applied only in •cases free from all reasonable doubt Ferry v. Sampson, 112 N. Y., 415; 21 N. Y. State Rep., 577; Moore v. Williams, 115 N. Y., 586; 26 N. Y. State Rep., 259; Mutual Life Ins. Co. v. Woods, 121 N. Y., 302; 31 N. Y. State Rep., 45.

But we think, from the undisputed evidence in this case, that the fact claimed to constitute the only defect in the title is such a very remote and improbable contingency, and is such a slender ■possibility only, that it is a proper case for the application of the principle, and that the courts below were right in refusing to relieve the purchaser from the obligations to perform his contract. 'The fact that John Colville disappeared seventeen years ago, and has not since been seen or heard from, would not alone be sufficient to obviate the objections to the title. But he disappeared in .such a condition of health and mind, induced by a long course of dissipation, and under such circumstances, that Jais death in a very short time is the inevitable conclusion. It is scarcely possible that he could have survived his father, who lived more than four ' years after his disappearance. When in health he was social, had a large acquaintance in the city, was attached to his family, and kindly treated at his father’s house. He had never been engaged in business, and could not support himself, as he had always been ¡supported by his father, and he left his home without any means whatever. He was then the owher of an undivided one-fourth interest in the house on Fifth avenue, which descended to him from his mother, who died in 1852, subject to his father’s tenancy by the curtesy, which interest was worth at least $20,000, and prospectively he was entitled to share in a considerable personal estate which his father had, who had then retired from business on account of impaired health and advanced years. Besides publication of process was made in at least three actions or proceedings, his sister took letters of administration upon his estate after adjudication by the surrogate’s court that he was dead, and his personal estate has been administered and distributed In another action for partition of real estate owned by his mother, process was published, and after sale, and upon distribution of the proceeds, the court adjudged that he died unmarried and intestate-shortly after June, Í874, leaving his brothers ánd sisters his only heirs at law and next of kin. The conduct of these suits and proceedings required numerous publications of process and notice, but no one has ever appeared claiming through him as widow, child, devisee or legatee. Under these circumstances, the outstanding right upon which the purchaser rests his refusal to perform has. no probable basis, and cannot be said to constitute any real defect in the title.

The order appealed from should be affirmed, with costs.

All concur.  