(dissenting) :
The question involved in this submission of controversy is-whether the defendant had a clear and marketable title to four lots of land at Maspeth, Long Island, deeded by her to the plaintiff. If she had not, a judgment must be rendered for the plaintiff. If she had such clear and marketable title, a judgment, must be rendered for the defendant.
The defendant, as stated in the brief of her counsel, does not claim title otherwise than through the foreclosure of a purchase-money mortgage executed on August 7, 1869, by John Frederick to Joseph H. Yan Mater simultaneously with a deed given by Van-Mater and wife to Frederick.
Van Mater, in 1870, assigned this-mortgage to Mallory and Blackwell, who assigned it to Von Oehsen, who assigned it to Andrew J. Smith in November, 1890. In May, 1894, Smith deeded the premises to the defendant.
In July, 1896, Smith commenced an action to foreclose the mortgage against “ Theodore Huhn, and the widow, hens at law and devisees of John Frederick, deceased, if any there be, whose names are unknown, and who cannot be ascertained so as to be named by the plaintiff *—the said John Frederick having died at the City of New York, in or about the year 1892, and the People of the State of New York.” The complaint alleged that Frederick was the *531owner of the premises at the time of his death; that he left a will disposing of personal property only, in which Huhn was executor and sole legatee, and that the will had never been offered for probate ; that Frederick was never married, left no heirs, and never devised or disposed of the property.
An order for the service of the summons upon Huhn and the unknown defendants by publication was made in 1896, the affidavit stating that Huhn was not a resident of this State, and that the names and residences of the widow and heirs of Frederick were unknown to, and could not with due diligence be ascertained by, the plaintiff. The summons was duly published, and a copy of the summons, complaint and order was mailed to the last-known residence of Huhn, in Hew Jersey.
An order of reference was made and testimony taken. The referee reported that Frederick died in 1892, seized of the premises, leaving a will in which Huhn was named as sole executor; that the will- was never offered for probate, and that as- far as could be ascertained Frederick was never married and left no heirs. A judgment of foreclosure was entered, and in 1897 the sheriff conveyed the premises to the defendant. She conveyed them to the plaintiff by a full covenant and warranty deed on June 4, 1897.
The record before us reads as follows :
“ Sixth. The question in controversy between the parties is as follows:
“ Q. Did the defendant by her warranty deed of June 4th, 1897, give to the plaintiff a clear and marketable title to the premises mentioned herein ?
“ The plaintiff claims that the title is not clear and marketable. The defendant claims to the contrary of said proposition. And now the parties agree that the validity of the defendant’s title to the premises mentioned in the complaint in fee simple and free and clear of all incumbrances, at the time of said conveyance, be left to this Court for adjudication; that in the event that -the title be not clear, the plaintiff shall be awarded judgment for the purchase price paid and the damages sustained; that the deed from the defendant to the plaintiff be canceled, and a reconveyance of the property be made by plaintiff to defendant, and that the purchase-money mortgage be canceled and satisfied by the defendant on record, and the *532bond of the plaintiff given therewith be canceled and returned, and that in the event that the title be clear, judgment be rendered for the defendant.”
As already stated, the defendant claims title solely through the foreclosure. Her title involves the question whether the mortgage merged in the fee.
The mortgage was assigned to Smith on November 22, 1890. In December, 1892, Huhn, describing himself to be the executor of the will of John Frederick of New York, deceased, conveyed the premises to Smith. He alleges that he was empowered to convey. But there is not in the indices or other records of the surrogate of New York county any reference to any proceedings to probate the will, or to any administration of the estate. In May, 1894, Smith deeded to the defendant. The plaintiff argues that although this deed of Huhn was in fact a nullity because Huhn had no title, still, as Huhn under color of title conveyed the premises to Smith and Smith conveyed to the defendant, Smith could not set up that the title which he conveyed was invalid, and an estoppel in pais is thereby created. But this estoppel cannot affect the rights of the heirs, if any, of Frederick.
Both parties concede in their briefs that the Hnhn deed conveyed no valid title to Smith. We are, therefore, not required' to decide this question, but, assuming for the purposes of this controversy that the concession is correct, it would seem to follow that the mortgage did not merge in a fee which the parties agree was not conveyed. The sole remaining question, therefore, is whether the foreclosure proceedings and the sheriff’s sale and conveyance thereunder were regular.
The submission states that the plaintiff’s attorney in the foreclosure action testified that he filed a report of sale, and it is conceded that such a report was filed, though none can be found of record, after diligent search, but no order confirming the sale is referred to by either party.
It is somewhat singular that the defendant, who held a record title to the premises by the deed from Smith, at the time the foreclosure suit was instituted, was not made a party defendant, but this is probably immaterial, as she became the purchaser at the foreclosure sale.
*533If Frederick died intestate, leaving heirs, the property vested in them. If he died intestate, leaving no heirs, the title to the premises vested in the State of Hew York. The People were duly served with the summons.
Section 445 of the Code of Civil Procedure provides that where a summons is served by publication, and the defendant does not appear, he or his representative must, on good cause shown, be allowed to defend within seven years after final judgment, where personal service of written notice thereof has not been made. Under this provision the heirs of Frederick might be allowed to appear as defendants and attack the validity of the mortgage. The section also provides that the title to property sold to a purchaser in good faith shall not be affected thereby. There is no statement in the record, nor any fact whereby it can be found whether or not the defendant was a purchaser in good faith. To. my mind the inference from the circumstances is rather against good faith, if any inference can be drawn. The title seems to me to be clouded and doubtful. Consequently, it is impossible to give force to the operation of this excepting provision of section 445, or to decide that the defendant has furnished a “ clear and marketable title.”
Heither am I satisfied that due proof of the facts alleged in the complaint was made before the referee in foreclosure. It appeared by the testimony of Smith only that the mortgage had been burned; that he had made a search for Frederick’s will and that none cquld be found (when or where he searched does not appear); that Huhn informed him that Frederick died in 1892, and that the will was never probated; that he was never married and left no heirs at law. Here was purely hearsay evidence, which, was not a sufficient basis for the referee’s report.
Besides, the mortgage, having been executed in 1869, was moré than twenty years old, and there was no allegation in the complaint in the foreclosure suit, nor any evidence on the reference, showing any payments on account of either principal or interest. This being a submission, the defendant is not required to plead the Statute of Limitations. The presumption, therefore, is that, the mortgage, being more than twenty years old and no interest paid, was outlawed. Seven years have not elapsed since the final judgment, and it is still open to attack by the heirs of Frederick, if any exist.
*534I think that under such circumstances the title is not clear and marketable, and that the plaintiff is entitled to judgment as pro-r vided in the submission, without costs. '
Judgment for defendant on submission of controversy, without costs.