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 Harriott and wife, dated June 7, 1852, acknowledged July 12, 1852, and recorded in the clerk’s office of Westchester 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 Oasper 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. Harch 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 satisfy the amount remaining unpaid on said judgment $401.54, “if sufficient personal property cannot be found then out of the real property in your county belonging to said judgment debtor on the day when the said judgment was so docketed in your county or at any time thereafter.” April 26, 1855, the sheriff, A. II. Lockwood, sold under said execution to Oasper J. Schmidt “ all the right, title and interest of the said defendant, Joseph Dixon, of which he was seized or possessed on the 9th day of April, 1853, or at any time afterward in and to ” the property in question, and issued to him a certificate of sale which among other things
The property consisted of four vacant and unimproved lots and so they have continued to the present day. March 21, 1861, said Casper, J. Schmidt died intestate.
November 4, 1897, this action was commenced. The original summons setting forth the heirs of Joseph Dixon named as defendants “ Casper J. Schmidt sometimes called or designated Casper I. Schmidt if living; and all persons unknown having or claiming to have an interest in the real property described in the complaint in this action, such unknown persons or owners being herein designated as the heirs-at-lrw, next of kin, devisees, legatees, grantees, assignees and legal representatives of said Casper J. Schmidt sometimes called and designated Casper I. Schmidt if any, all of whom and whose names, except as stated, are unknown to the plaintiff.”
The complaint sets forth the judgment, levy, sale, and issuance of the certificate as above and alleged certain irregularities in the proceedings. Plaintiff demanded appropriate relief as in a partition action and also that neither Schmidt nor any person claiming under him “by virtue of said judgment execution or alleged sheriff’s sale or certificate of sale ” ever had or now has any right, title, interest, or estate in said property, that the execution, the sale, and the return be declared null and void, vacated, set aside, and cancelled, and that all the indices and records thereof be cancelled.
On July 23, 1898, Joseph W. Schmidt, August W. Schmidt, Gertrude B. Cornell, Theo. S. Schmidt, Anna E. Snyder, and Francis A. Guile, and on July 26, 1898, F. G. Schmidt, heirs of Christian J. Schmidt, each in consideration of five dollars paid to each, and the further sum of twenty-five dollars theretofore paid to each of them for the assignment of said judgment in Schmidt v. Dixon assigned all their right, title, and interest in and to said certificate of sale executed by A. H. Lockwood, late sheriff of Westchester county, to the said Casper J. Schmidt on
On August 4, 1898, William V. Molloy then sheriff of Westchester county executed and delivered a deed to Mary Mand Bickford of the property in question, which among other recital sets forth that he did so in pursuance of an order of the Supreme Court of the State of New York, made and entered at a special term of the said court held in and for the county of Kings, on the 3d day of August, 1898, in said action. Said deed was recorded in the office of the register of New York county August 4, 1898. On or about September 14, 1898, Mary Mand Bickford interposed an answer herein, setting up the statute of limitations against the causes of action set forth in the fifth and sixth paragraphs of the complaint, also setting up her title by the assignment and deed hereinbefore set forth and alleging that she “ is the sole owner, seized in fee simple, in possession of said property and that neither said plaintiff nor any of the defendants have any right, title, or interest therein whatsoever” and demands the dismissal of the complaint.
The property though never improved seems now to be of some value. The city has taken a strip of it in street opening proceedings and an award to “ unknown owners ” has been made therefor of $5,000, and the balance is testified to be worth $17,500.
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 cotenants - involving their respective titles and rights of possession may be so deter
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 timte 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; Catlin v. Rea, 35 Misc. Rep. 535. At the time the ■certificate is issued the owner is not disseized 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 re-
lation 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 delivered the title has become vested in the claimant under the purchaser and the plaintiff must fail in this action, but if the sale was so irregular that the purchaser acquired no right to an estate thereby or if the conveyance by the sheriff is defective so that the inchoate right acquired at the sale has never been perfected, the doctrine ■of relation cannot be applied and the plaintiff and defendants, heirs of Djxon, would be entitled to partition.
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 1173 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.
As the deed has been properly executed and delivered by the sheriff, the title has thereby been perfected and relates back to the time of the original sale. The title to the property sought to be partitioned, not being in the plaintiff, and his alleged co-tenants, the complaint must be dismissed, with costs to defendant Bickford.
Complaint dismissed, with costs to defendant Bickford.