Belmont Powell Holding Co. v. Serial Building Loan & Savings Institution

Per Curiam: The Attorney-General has appealed from a final judgment and decree after trial at Special Term, under article 12 of the Real Property Law (Consol. Laws, chap. 50 [Laws of 1909, chap. 52], as amd. by Laws of 1910, chap. 627), in which the title in fee to the premises described in the complaint has been thereby registered in the plaintiff. All defendants, except the Attorney-General, either defaulted [125] in pleading, or consented to the entry of judgment of registration. The Attorney-General interposed an answer setting up that one Julia Ann White, who in 1854 took title in fee to this property, thereafter died intestate, seized of the premises, leaving no hens at law her surviving, from which appellant claims that the title had escheated to the State. Plaintiff’s proof indicated a record title from March 27, 1802, to 1854, when a deed to Julia Ann White was recorded. Julia Ann White, and those claiming under her, however, are not parties to the action, unless by omnibus clause in the summons and complaint, “All other persons, if any, having any right or interest in, or lien upon the property affected by this action, or any part thereof.” Warrant for this practice is claimed under section 380 of this statute (as amd. supra). But that has not been the usual method to give notice to the heirs or next of kin of a deceased or missing holder of title. Such rights ought not thus to be taken away, and the title registered against them merely by considering these unknown heirs as brought in and made parties by the general words “All other persons, if any, having any right or interest in * * * the property affected.” In a like case of an absentee who had been long missing, the summons was against the unknown widow, heirs and next of kin, naming them severally by fictitious designations. (Moran v. Conoma, 36 N. Y. St. Repr. 680; affd., 128 N. Y. 591. See, also, City & Suburban Homes Co. v. People, 157 App. Div. 459, 461.) The power to register a title which may be conclusive against absent heirs or others having interests in the property should not be permitted to do away with the usual precautions to give notice to such heirs. Here the name.of White was not in the summons. Had it so appeared, it might reach the attention of some of the family. With that essential wholly left out, and no other notice than the general designation of “all other persons,” we cannot say that the title of such absentees has been transferred over to the plaintiff by this proceeding by publication. (Barhenthien v. People, 212 N. Y. 36; 213 id. 554.) There is also a lack of evidence to sustain the finding of adverse possession, should that be deemed a finding of fact. [126] On the grounds, therefore, that the heirs or next of kin of Julia Ann White were not named in the summons, and that the evidence of adverse possession is insufficient, the judgment should be reversed, with costs, and the complaint dismissed. Jenks, P. J., Burr, Carr, Rich and Putnam, JJ., concurred. Judgment reversed, with costs, and complaint dismissed.