Dixon v. Dixon

Action for partition. The property in question is located in the former town of West Farms, Westchester county, annexed to the city and county of New York by the annexation act of 1873. It was conveyed to Joseph Dixon, father of the plaintiff, by warranty deed of Samuel Marriott and wife, dated June 7, 1852, acknowledged July 12, 1852, and recorded in the clerk’s office of West-chester county April 3, 1854. Joseph Dixon died intestate in 1894, and all of his heirs at law are parties to this suit, and no question arises between them as to their several rights and interests. On April 4, 1853, Joseph Dixon confessed judgment in favor of Casper J. Schmidt for $5,006.75, and said confession was docketed in New York county April 9, 1853. A transcript of said judgment was filed and docketed in Westchester county January 20, 1855. March 8, 1855, an execution was received by the sheriff of Westchester county on said judgment, which, after properly stating the date of the docketing in New York county, erroneously stated the date of the docket in Westchester county' to be April 9, 1853, — the date of the New York docket, — instead of January 20, 1855, and directing him to

There is no evidence in, this, case that from the time of the issuance of the sheriff’s certificate of sale, April 26, 1855, down to the commencement of this action in 1897, either Joseph Dixon or his heirs, on the one side, or Casper J. Schmidt or his heirs, on the other, ever physically occupied or used in any way this- property. The question of possession, then, is a matter of legal presumption. Each invokes the aid thereof, and of the statute of limitations. The defendant Bickford raises the point that this question of title, as between herself and the heirs of Dixon, cannot be tried in an action for partition, and moves for a dismissal of the complaint. Since the enactment of section 1543 of the Code of Civil Procedure, the entire question of title may be put in controversy and determined in an action for partition. It is well established that all disputes between plaintiff and his co-tenants, involving their respective titles and rights of possession, may be so determined. Weston v. Stoddard, 137 N. Y. 119 , 33 N. E. 62 , 20 L. R. A. 624 , 33 Am. St. Rep. 697 ; Drake v. Drake, 61 App. Div. 1 , 70 N. Y. Supp. 163 . The language of the Code, and the reasoning used in construing it, apply equally as well to an adverse claim of title made by a stranger as to such claim by a co-tenant. In the Drake Case it is said:

“The reasoning of the learned court in Weston v. Stoddard applies with equal force * * * to all cases where the only obstacle to partition is an alleged title, which is challenged, and possession under it, and which being out of the way, partition would follow as a matter of course.”

The right to a jury trial is preserved, for it is provided by section 1544 of the Code of Civil Procedure that an issue of fact joined in the action is triable by a jury, and, had either party demanded trial by jury, the action would have been sent to trial term. To require that another action be brought and independently tried by a jury, of that another suit in equity be brought, to remove a cloud upon his title, would defeat the very purpose of the Code provision, which is to prevent circuity of procedure and multiplicity of suits. The obvious purpose of the action is to enable a party who claims an interest in the property to clear the title and obtain partition in one

“Any title subservient to the rights of the real owners must necessarily be determined, and, if a cloud, it must be dispelled, in order to complete determination of the matter. Under section 1543 of the Code, the title or interest of the plaintiff, as well as that of the defendants, can be controverted and determined in an action of partition. The design of that section was to allow the whole controversy to be settled in one action.”

It was held in Townsend v. Bogert, 126 N. Y. 370 , 27 N. E. 555 , 22 Am. St. Rep. 835 , that where a plaintiff in partition knows that a third person claims an interest in the subject-matter, but does not know the nature, extent, or merits of the claim, these facts may be stated, and the claimant called in as a party and required to disclose his alleged interest. In Biglow v. Biglow, 39 App. Div. 103 , 56 N. Y. Supp. 794 , the complaint, alleged that certain of the defend1 ants “claim to have some right, title, or interest in said property adverse to that of the plaintiff, the exact nature of which is unknown to plaintiff, and which is a cloud upon the title.” Judgment was demanded that the rights and interests of all the parties to the action be ascertained and determined; that said defendants be adjudged to have no interest in the property, although they averred that they were the owners in fee of the premises. The court at special term ordered a sale of the property free from any claim of said defendants, and, in giving judgment in affirmance, the appellate court said:

, “Tbe appellants cannot, we tbink, justly complain of tbe form of tbe action. * * * Tbe provisions of sections 1537 to 1543 of tbe Code of .Civil Procedure bave been construed to mean that all parties having or claiming to bave an interest in real estate may be made parties to an action of partition, and that all controversies as to tbe title. may be disposed of in tbe action.” Best v. Zeb, 82 Hun, 232 , 31 N. Y. Supp. 230 , affirmed in 146 N. Y. 363 , 41 N. E. 88 .

It therefore becomes necessary to determine whether the title to the premises in question is in the plaintiff and the other heirs of Joseph Dixon, or in the claimant under Casper J. Schmidt, the purchaser at the execution sale in 1855. The claim of title made by the defendant Bickford depends upon the doctrine of relation. The lapse of long periods of time between the issuance of the certificate and the delivery of the deed does not defeat the title of the purchaser, which may become perfected upon the delivery of the deed at any time, and title thereupon relates back to the time of the original sale. Reynolds v. Darling, 42 Barb. 418 ; Cook v. Travis, 20 N. Y. 400 ; Dumond v. Church, 4 App. Div. 194 , 38 N. Y. Supp. 557 ; Catlin v. Rea, 35 Misc. Rep. 535 , 71 N. Y. Supp. 1117 . At the time the certificate is issued, the owner is not disseised, and the title and right to possession remain in the execution defendant. The title does not pass by filing the sheriff’s certificate, nor' does the estate of the debtor become vested in the purchaser by mere lapse of the time of redemption, but only by the sheriff’s conveyance under the statute. In Smith v. Colvin, 17 Barb. 157 , the court says, “The deed, when executed, will be good, by relation, and cover the intervening period from the sale.” Holman v. Holman, 66 Barb. 215 . If, therefore, the sale was regular, and a deed has been properly executed and

The plaintiff urges that such irregularities in the sale are shown as to avoid the sale. The only irregularities of which any proof was presented on the trial are:

First, an erroneous statement in the execution, under which the property was sold, of the date of the docket in Westchester county; naming instead the date of the previous docket in New York county. Such irregularity does not render the sale void. In Clute v. Em-merich, 21 Hun, 122 , 129, the same objection was made, and the court said:

“It would be a technical and constrained construction to hold that such a mistake would be fatal to the sale and deed, when it is manifest that all the interest possibly sold or conveyed by it would be that possessed by Hall [the judgment debtor] on the date of the docketing in New York, or at any time subsequently. Nobody could be misled or injured by such a mistake, and it is the duty of the court to disregard it.”

The second irregularity is the sale of the property by the sheriff in one parcel, instead of separately in four parcels. The provisions of 2 Rev. St. p. 369, § 38, which provides that “each lot, tract or parcel must be separately exposed for sale,” has been held to be directory only. Cunningham v. Cassidy, 17 N. Y. 276 . The sheriff’s duty is to sell according to the statutory provision, but his failure to do so does not render the sale void, but only voidable. It is now too late, after 45 years have elapsed, to avoid the sale because of such irregularity.

It only remains to determine whether a deed has been properly executed and delivered. The plaintiff contends that the only person entitled to a deed would be the administrator or executor of the deceased owner of the certificate. Section 1473 of the Code of Civil Procedure provides:

“Where a person, entitled to a deed, dies before the delivery of the deed, the sheriff must execute and deliver the deed to his executor or administrator. The property so conveyed must be held, in trust for the use of the heirs or devisees of the decedent, subject to the dower of his widow, if there is one; but it may be sold, in a proper case, for the payment of his debts, in the same manner as land, whereof he died seized.”

The obvious reasons for requiring the deed to be given to the executor or administrator are to obviate all contention with the sheriff over claims to the deed, by providing an officer of the court to take the property for the benefit of the heirs, and to protect the interests of the creditors as stated in the statute. The purchaser of the certificate at the judgment sale died intestate in 1861, and there is no evidence before me of any outstanding claims against his estate. It does not appear whether or not an administrator was ever appointed. The statute provides that the deed must be delivered to such officer, but in his absence the Cod'e is silent. I am of the opinion that the

Complaint dismissed, with costs to defendant Bickford.