McNulty v. Mitchell

Giegerich, J. The purchaser of property sold at a partition sale refuses to take title on the ground that there is no evidence of the death, unmarried and without issue, of one John Mullany, to whom, or to whose issue, if living, the entire property would belong. In 1858, being then about thirty years of age, Mullany was living in this city with his mother, his brother William and his sister Mary. His habits were irregular and he was partially supported by his mother. In the latter part of the year 1858 he went to Philadelphia, where it appears he remained for about two years, continuing his irregular and dissipated habits, being, when last heard from in the year 1859 or 1860, in poor health and suffering from a disease generally regarded as incurable and an impediment to marriage. Previous to his disappearance from Philadelphia he had urged a companion [294] to go with him into the West, and a year or two afterward a report came back that he had been killed there in a duel with a cowboy. At intervals his family made unavailing efforts to trace and discover him. In the year 1900 an advertisement for information concerning his whereabouts was inserted for several days in a Philadelphia paper, but no response was received. Upon these facts I think the purchaser should be compelled to' take the property under the decisions in Ferry v. Sampson, 112 N. Y. 415, and McComb v. Wright, 5 Johns. Ch. 263. In Vaught v. Williams, 120 N. Y. 253, in a case where the purchaser was relieved of his contract, it was nevertheless said, at page 260: “ There must be some point of time of course when the presumption of death would arise, but we have been referred to no case in this state in which that presumption has prevailed where the absence was less than forty years.” In the present instance we have an absence of forty-three years of a man of dissipated habits and impaired health when last heard from and already over thirty years of age. He knew of the existence of this property, in which he would, in the natural course of events, have a share, and a portion of the income of which he had received. This would act as a constant incentive to his return, or the return of his widow or children, if any. Humors of his death had come back from the West. Fruitless search had been made for him by his family, the members of which had become satisfied of bis death. Under these circumstances, I think there is no reasonable doubt that he is dead, and has left no issue surviving him. The motion should, therefore, be granted, but without costs. Motion granted, without costs.