Smith v. Doe

MADDOX, J.

The averments, though upon information and belief, in the verified complaint here and the testimony taken on the reference on title, create the serious doubt, namely, that Patrick Smith died leaving no heirs at law. On the death of her husband, plaintiff’s dower became consummate and the fee in the real property in question passed to and vested immediately in his brother, Patrick Smith, but subject to such dower right, and upon the death of that brother, Patrick Smith, without heirs, said real property “at once escheated to the state, and the title thereto immediately vested in the state by operation of law” but, likewise, subject to plaintiff’s dower. Croner v. Cowdrey, 139 N. Y. 471, 476, 34 N. E. 1061, 1062, 36 Am. St. Rep. 716. I am mindful of the presumption that decedents leave heirs, but, in view of the foregoing consideration, the respondents on this motion, those bidding at the judicial sale, should not be put to the hazard of having to defend title to the premises sold as against a claim of escheat to and hence the vested rights of the people of the state, since, as said by Judge Chase, in Wanser v. De Nyse, 188 N. Y. 378, 380, 80 N. E. 1088, 117 Am. St. Rep. 871:

“In this state a person who in good faith bids upon real property at a judicial sale where the particular interest offered is not expressly stated has the right to assume that he is to receive a conveyance of the fee, and that the title to such real property is marketable. In case the title to such real property is not marketable, such fact is a defense to a motion to compel the purchaser to complete his purchase or to any other proceeding or action based upon such bid.”

If Patrick Smith left no heirs, then upon his death the escheat was complete, but subject to plaintiff’s dower, and the people of the state of New York are not bound by the judgment here, though named as parties defendant in the summons in the action, since there is no authority for making the state a party defendant in an action for dower, notwithstanding there are express statutory provisions permitting that in certain other actions. Code Civ. Proc. §§■ 447, 1594, 1627, 3402. Code, §‘ 1625, does not aid plaintiff on this motion; for, as we see, the application of that section is limited to provisions relating to a sale of the premises and to the distribution, investment, and care of the proceeds thereof. The appearance of the Attorney General generally in this action and also upon the hearings before the referee on title cannot be construed as working a waiver by the people of the jurisdictional question presented, nor can it be urged that thereby the people are estopped from instituting and maintaining, through the Attorney General and pursuant to the provisions of article 5, tit. 1, c. 16, Code, an action to recover the premises embraced in this action because of an escheat. Seitz v. Messerschmitt, 117 App. Div. 401, 102 N. Y. Supp. 732, affirmed 188 N. Y. 587, 81 N. E. 1175. The title here tendered is not free from uncertainty and from judicial doubt and, the purchasers should not be compelled to take that, the possession of which they may have to defend by litigation. Wanser v. De Nyse, supra.

Motion to compel completion of purchase is denied, and the purchasers should have returned to them the sum paid on account of the purchase, not the auctioneer’s fee or expense of examining title, since the referee should not be required to pay any more then he is shown or is to be presumed to have received.

Settle order on notice.

No order was entered herein, as the decision was superseded by an act of the Legislature releasing the interest of . the state to the purchaser.