Warner v. Doscher

Headnote

Vendor and purchaser — real property — title — auction sale of real property “free and clear of all encumbrances”—action to recover deposit on ground that unpaid transfer tax upon estate of former owner and existing tenancies were “ incumbrances.”

Warner v. Doscher, 213 App. Div. 117 , affirmed.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 15, 1925, affirming a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury. The action was to recover moneys paid by plaintiff’s assignor as a part of the purchase price of four buildings bid in by said assignor at an auction sale conducted by the defendants, as executors of the estate of Claus Doscher, deceased. The terms of sale provided: “ Title to the premises will be conveyed by an executors’ deed free and clear of all encumbrances.” The assignor refused to take title on the ground that the estáte of Claus Doscher was subject to a transfer tax which had not been fixed or paid, and upon the further ground that existing tenancies of the property constituted incumbrances thereon.