#### Marcy Rosenblum, Plaintiff, *v.*Louis Eisenberg, Defendant.

Second Department,

January 24, 1908.

Heal property — vendor and purchaser — burden to show title unmarketable—tax sale — sufficiency of notice — wife not entitled to redeem— conveyance to devisee of deceased purchaser— representative defined.

The burden of proving that a title to lands is unmarketable rests upon the objec;. tor, and the materiality of the objection is a question of fact to be drawn from all the circumstances. "

A title derived from a tax sale, made pursuant to chapter 863 of the Laws of 1873, as amd., is not unmarketable because the notice of sale as published against the owner, whose residence could not. be ascertained, was only directed to him, or if. dead, to his heirs or devisees, without ■ mentioning' his wife and legal representatives.

The wife of an owner is not entitled to notice of a tax sale under said statute, aá , her inchoate right of dower does not entitle her to redeem.

*897Where one of the purchasers at a tax sale made under said statute died leaving his whole estate to his wife absolutely,'the deed from the registrar of arrears was properly made to the wife as devisee of the purchaser.

Although said statute required the deed to be made to the purchaser, “ his legal representatives or assigns,” the word “representatives” did not mean solely the executors or administrators representing the deceased, but included his heirs and devisees as well.

Submission of a controversy upon an agreed statement of facts, pursuant to. section 1279 of the Code of Civil Procedure.

*Samuel A. Telsey,*for the plaintiff.

*Max E. Lehman,*for the defendant.

Jenks, J.:

This is a controversy submitted. The plaintiff agreed to convey to defendant certain premises in the borough of Brooklyn, by warranty deed of full covenants, free of incumbrances save a mortgage. .The defendant objects to the title, which was derived through a tax sale for arrears, pursuant to chapter 863 of the Laws of 1873, as amended by chapter 405 of the Laws of 1885.

• There are two objections. First, it is contended" that the tax sale was defective in that notice of sale was not given to the owner or to those who under him had the right of redemption from the sale. Section 7 of title 8 of the said statute (as amd. *supra)*provides that “Any person or persons having an estate in or any mortgagee of any of the lands and premises sold in pursuance of the fifth section of this title, whose estate or lien appeal's of record in the county of Kings, may, at any time before the expiration of one year after notice shall have been given to him of such sale, by-the purchaser or his assigns in the manner hereinafter provided, or before a deed of said premises shall have been delivered as provided in section six of this title, redeem said lands and premises by paying to the registrar of arrears for the use of the purchaser” certain specified sums. The same section provides that such notice shall be in writing, and further provides for the details of the service thereof. There is a further provision that “ When any person entitled to redeem or to have. *898notice under- this' section, or his- name, or part of his ñamé, or his place of residence remains unknown to the purchaser or his assigns, after, diligent inquiry, or where such person, being a resident of this.State, is and has been-for-six months continuously, absent from the State, or avoids service, so that personal service cannot he-made, an order for the service- of such notice by publication may be made by a judge of any court of record, residing in the county of 'Kings, upon a-petition of said purchaser or his' assigns, and upon proof satisfactory to. the judge by affidavit or otherwise, that proper and diligent effort has been made to serve Such notice 'upon such person,” and, generally speaking, of the failure tos serve such notice. The particular’s of the publication are likewise prescribed so as “ to give notice to tlzé pez’son intended to be notified by such description or designation, if - lzis name be zznlcnown, as the judge shall direct,' for a specified time.”. It is also required thatA.certified copy of such order and a copy of such notice with proof of the publication thereof, in pursuance of such order, by affidavits made by some one of the publishers of the respective.newspapers designated,” - etc., be filed’in the office of the registrar of. arreaz-s, and thereupon such notice becomes-a public z’ecord, and “shall be *prima facie*evidence in all courts and places of the due service of such notice 'upon the pez'son or persons specified in such oi’der; and upon filing 'said affidavits such service-shall bé deemed complete and shall have the saíne effect as personal service of suclznotice.” Section 6- of title 8 of the'act (ás amd. *sxtpra)*requires, after presentation of the certificate of sale and proof of the service of the notice of such sale upon the owner arid mortgagees of the said lands and premises;, the registrar of az'z-ears, after the expiration of one year from the date of such service, - to execute and deliver to'the purchaser on a sale, his legal- representatives or assigns, a deed for said lands and premises, and it is enacted that such purchaser, his-legal- representatives or assigns, shall take a good and sufficient title i-H fee simple absolute to the property sold, ' of' which the said deed shall be presuznptive evidence; “ and in any proceeding or action to be by such purchaser, his. lzeize, legal' representatives or assigns, taken, pz'osecuted, or* defended for the recovery of the possession of the property so sold as aforesaid,, or in the establishment or defense of his or their title shown as aforesaid, by such deed, such title shall not fail or be defeated by reason of *899any irregularity or formal defect in the procedure taken under this act, upon which such sale shall have been made or such title conveyed as aforesaid.”

At the time of the said tax sale the fee of the premises was vested in Francesco Augero, who held the same free and clear of all incumbrances, except the taxes for which the said land was sold. On January 5, 1887, the registrar of arrears sold the premises in question at public auction to Walter E. Parfitt and Henry Parfitt, the highest bidders. On October 3, 1887, the county judge of Kings county, upon proof by affidavit, which by him was declared satisfactory, that proper and diligent efforts had been made to serve an annexed notice upon Francesco Augero, his heirs or devisees, and that his and their place or places of residence and the names of said heirs or devisees could not be ascertained, made an order which directed the service of said notice by publication, which, in accordance with the terms of that order, was directed to “Francesco Augero and to his heirs, or devisees if he is dead.” The certified copies of the affidavits of publication as required by the express terms of the statute were duly filed in the office of the registrar of arrears. The point of the first objection made by the defendant is that the notice of sale as published to Francesco Augero and his heirs or devisees if .he is dead, did not give notice- to all persons entitled to receive notice. It is contended that his wife and his legal representatives are not designated in any way, and hence they never received even constructive notice; and not having received any notice, their title was never divested. The burden of proof of proving the unmarketability of the title rests upon the objector *(Greenblatt*v. Hermann, 144 N. Y. 13; *Ruff*v. Gerhardt, 73 App. Div. 245), and the materiality of the objection is a question of fact to be drawn from all the circumstances. *(McPherson*v. *Schade,*149 N. Y. 16.) The only person entitled under the statute to redeem .this property from the tax sale was one having an estate in, or any mortgagee of any of the lands and premises. It is agreed that at the time of the sale the fee of the premises was vested in Francesco Augero. The presumption of his life contin-. ued. *(People ex rel. Miller v.*Ryder, 124 N. Y. 500, 504.) There is no suggestion in any of the papers submitted on the application for'the order of publication that Augero was dead.. There *900is no suggestion, much less proof, in the record that Augero Avas dead at the time of the service of the notice. If he was alive at the time of the service of the notice, his was the only estate or interest in the land appearing of record. There is no proof that he ever had a wife. Even if he liad a wife living at the time of the notice, she was not entitled to notice, for she had no right to redeem. An inchoate right of dower Avak not such an estate or interest in the premises as is within the statute. *(People ex rel. McColgan*v. Palmer, 10 App. Div. 395.) The objection, then, of the defendant is .but the mere suggestion of a possibility, not founded upon any facts or derivable from any facts, but contrary to them. It is • not enough to render the marketability of the title doubtful. (See. Maupin Mark. Tit. Real Est. [2d ed.] *707.)*

*■*The second objection arises from .the following circumstances: One of the purchasers at the tax sale died on June 1, 1888, leaving a will which was' duly admitted to probate. The will devises and. bequeaths all of the estate of the testator, real and personal, to his wife, Emeline Parfitt absolutely. The deed made by the registrar of arrears, pursuant to the statute, was to Walter E. Parfitt, one of the purchasers, and to Emeline Parfitt, devisee of Henry Parfitt, deceased. There is no question but that at the time tliat Parfitt died all the interest in the premises acquired by him, by virtue of the tax sale and the proceedings therein Avas in him exclusively. But Emeline Parfitt was not the executor nominated in the last will and testament of Henry Parfitt. The point made is that inasmuch as section 6 of title 8 of the said statute provides that the registrar of arrears shall execute and deliver tl,ie deed “ to the purchaser on such sale, his legal representatives or assigns,” m order "to divest the record owner the registrar must conform to this provision ; that he had no power to give a deed to any one else, and that Emeline Parfitt does not fall within the descriptive term *“*purchaser * * * legal representatives or assigns.” I think that there is no force in tins objection, but that the term “ legal representatives” authorized the execution of the deed to Emeline Parfitt. ‘ The term under the' authorities is not necessarily confined to the artificial representatives like executors.or administrators, who represented the deceased in distinction to heirs, but may refer to heirs and devisees as well. *(Griswold v. Sawyer,*125 N. Y. 411.) In *Lessee of Rice*v. *White*(8 *901Ohio, 216) the Supreme Court of Ohio held that a certificate of sale of land for taxes after the death .of the holder passes to the heirs at law, and that, when the act provided that such certificate shall he assignable by law and vest in the assignee or his legal representative all the right and title of the original purchaser, the term legal representative was the heir to whom the realty descends. (See, too, 2 Blackw. Tax Tit. [5th ed.] §963 and note 1, citing cases; Black Tax Tit. [2d ed.] § 312.) As to the construction of the term legal representatives, see further *Morehouse*v. *Phelps*(18 Ill. 472); *New York Mutual Life Ins. Co.*v. *Armstrong*(117 U. S. 591); *Duncan's Lessee*v. *Walker*(1 Yeates [Penn.], 213); *Commonwealth ex rel. Kreber*v. *Bryan*(6 S. & R. 81); *Wamsley*v. *Crook*(3 Neb. 344); *Lee*v. *Dill*(39 Barb. 521).

Judgment for the plaintiff, without cdsts.

Woodwakd, Gr ateto e, Píen and Milleb, JJ., concurred.

Judgment for plaintiff on submission of controversy, without costs.