New York County NyArchives Court.....McCabe, Catherine Vs. George Kenny 1889
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Source: Reports Of Cases - New York
Written: 1889

First Department, May Term, 1889.

CATHARINE McCABE, Respondent, v. GEORGE J. KENNY, Appellant.

Specific performance of a contract to sell real property — what is not a 
marketable title — escheat act, chapter 706 of 1871,  unconstitutional.

In proceedings to compel the specific performance of a contract for the sale of 
certain real estate it appeared that Matthew Leavy purchased the premises in 
question in 1838, and continued in the ownership thereof until the year 1837, 
when he died leaving a last will and testament, and two children and a widow 
surviving him. Both of the children died in infancy, leaving them surviving 
their mother, who died in 1850.

After Leavy's death his widow continued in the possession of the property, 
collecting the rents up to the time of her death, when Gilbert Leavy, a brother 
of the testator, came to this country and immediately took possession of the 
premises, and continued in the exclusive possession thereof down to the year 
1871, collecting the rents of the property. He was naturalized in 1857. In 1871 
Gilbert Leavy, being in possession of the property, conveyed the same to his 
daughter, Catharine McCabe, the plaintiff in this action, who remained in 
undisturbed possession thereof down to the time of the commencement of this 
action.

Subsequently a mortgage, which had been executed on the premises by Matthew 
Leavy, was foreclosed, to which Catharine McCabe and her husband, and the only 
heirs-at-law of Matthew Leavy living at that time, were made parties defendant, 
under the sale in which action Catharine McCabe became the purchaser. Matthew 
Leavy had brothers and sisters, all of whom were residents of Ireland and 
unmarried, and Mrs. Leavy had a brother and a sister, the former of whom was 
never in this country; the latter of whom died in Connecticut, but whether 
before or after the death of Mrs. Leavy was not definitely established.

Held, that the adverse possession, claimed to be established in Gilbert Leavy 
and the plaintiff, depended upon a question of fact and also upon a doubtful 
question of law, there being no evidence that Gilbert Leavy was in possession of 
these premises, under a claim of title thereto, until he conveyed to the 
plaintiff in 1871, and that the title was not a marketable title such as the 
purchaser should be compelled to accept.

That chapter 706 of the Laws of 1871, entitled "An act to release the interest 
of the people of the State of New York in certain real estate to Catharine 
McCabe," was unconstitutional, there being no reference in the title of the act 
to the real object thereof.

Johnston v. Spicer (107 N. Y., 185) followed.

Appeal from a judgment rendered at the New York Special Term, directing a 
contract for the sale of certain premises in the city of New York to be 
specifically performed, and entered in the office of the clerk of the county of 
New York on the 31st day of January, 1889.

Payson Merrill, for the appellant.

Dougherty, Durnin & Hendricks, for the respondent.

Van Brunt, P. J.:

The facts as found by the court below, briefly stated, are as follows: Matthew 
Leavy purchased the premises in question in 1833, and continued to be the owner 
thereof until the year 1837, in which year he died at the city of New York, 
leaving a last will and testament, which was duly admitted to probate. In view 
of the conclusion at which we have arrived, the terms of this will are entirely 
immaterial. The executors never qualified. He left him surviving two children 
and a widow, both of which children died in infancy, leaving their mother 
surviving, who died in the year 1850 or 1851. Matthew Leavy's parents died prior 
to his death. Mrs. Leavy had a brother named Peter, and two sisters, Ann Murtha 
and Elizabeth Hart, her only heirs-at-law. Peter never was in this country. Ann 
died in this city, prior to the death of Mrs. Leavy, unmarried. Elizabeth was 
married to John Hart, and died in Connecticut, but whether before or after the 
death of Mrs. Leavy is not definitely established, but presumably after. Matthew 
had four brothers and two sisters, James, Gilbert, Bernard and John, and Mary 
and Ann; all of these were living at the time of the death of the survivor of 
Matthew's children, except James, who had died prior to Matthew, unmarried. At 
this time all of the above-named brothers and sisters of Matthew were residents 
of Ireland, and unmarried. After the death of Matthew, his widow continued in 
possession of the property and collected the rent up to the time of her death. 
In the year 1851 or 1852, a few months after the death of Mrs. Leavy, all the 
brothers and sisters of Matthew being still residents of Ireland and aliens, one 
brother, Gilbert Leavy, came out to this country, and immediately on his arrival 
took possession of the premises in question and continued in exclusive 
possession thereof down to the year 1871. During the whole of this period he 
remained in possession of the premises, and appropriated to the use of himself 
and some of his relatives the rents of the property. Gilbert was naturalized a 
citizen on the 22d of October, 1857, and from this fact it was claimed to be 
established that he must have come to this country prior to October, 1852. In 
the month of February, 1871, Gilbert Leavy, being then in possession of the 
property, assumed to convey the same to his daughter, Catharine McCabe, the 
plaintiff in this action, who immediately thereupon entered into the actual 
possession of said premises, and has remained in undisturbed possession thereof 
down to the commencement of this action. It is further found by the learned 
court that in April, 1871, by chapter 706, Laws of 1871, the State of New York 
released to said Catharine McCabe all its interest in the premises in question. 
The title of said act was "An act to release the interest of the people of the 
State of New York in certain real estate to Catharine McCabe."

Subsequently a mortgage was foreclosed which had been executed on the premises 
while Matthew Leavy was in possession thereof. Catharine McCabe and her husband, 
Bernard Leavy, Thomas Leavy, John Leavy and Elizabeth his wife, Ellen Leavy, and 
Mary Blake were made parties to the action. Said Catharine McCabe, Bernard 
Leavy, Thomas Leavy, John Leavy, Ellen Leavy and Mary Blake, the defendants, 
were all of full age and the only heirs-at-law of Matthew Leavy then living. 
Upon the sale in foreclosure Catharine McCabe became the owner. The court found 
that the plaintiff and Gilbert Leavy, her grantor, had been in the actual 
continued occupation of the premises in question for upwards of thirty-six years 
past under claim of ownership. Although it is doubtful whether the proof is 
sufficient to sustain this finding, it is not material in view of the conclusion 
at which we have arrived. The court further found that the plaintiff in this 
action, while in possession of the premises, entered into a contract with the 
defendant for the sale of the premises, and that the defendant, claiming the 
title to be defective, refused to take the same. And as conclusions of law the 
court found: First, That on the death of the survivor of the children of Matthew 
Leavy, which occurred in the year 1842, whatever interest the heirs of Matthew 
Leavy might have had, under his will or by descent, escheated to the State, as 
they were at that time, aliens and incapable of inheriting. Second. That the 
release from the State to the plaintiff herein vested in her all the interest 
which the heirs of Matthew Leavy would have received if citizens. Third. That if 
any interest came to the brothers and sisters of Matthew Leavy, either by devise 
or by descent, such interest was duly foreclosed in the action brought by 
Davidson, and, under the sale in said action of foreclosure, became vested in 
the plaintiff Catharine McCabe. Fourth. That, as against the heirs of Matthew 
Leavy, the plaintiff has a good title to the premises in question, either 
through the release from the State or through the sale under the Davidson 
foreclosure proceeding.

The learned court also found that the possession of Gilbert Leavy and Catharine 
McCabe established an adverse possession thereof for thirty-six years past, and 
directed that the defendant perform his contracts. From this judgment this 
appeal, is taken. It is a well-settled principle that the purchaser of land at a 
judicial sale is entitled to a marketable title; and that a title open to a 
reasonable doubt is not a marketable title, and the court cannot make it one by 
passing upon a disputed question of fact or a doubtful question of law in the 
absence of the party in whom the outstanding right is vested. (Fleming v. 
Burnham, 100 N. Y., 1.)

It seems to us, under this rule, that the title tendered to the defendant was 
not such a one as he was bound to take. In the first place, the adverse 
possession claimed to have been established in Gilbert Leavy and the plaintiff 
depended upon a question of fact, and also upon a doubtful question of law, 
because there is no evidence whatever that Gilbert Leavy was in possession of 
these premises under a claim of title; and there is no evidence that he claimed 
such title until he conveyed to the plaintiff in 1871. It is true he was in 
possession and collected the rent, but what his claim in respect to the title of 
the premises was we are in no way informed. He made no claim by virtue of a 
written instrument, but simply seems to have seized upon the property and 
converted the rents to his own use, but whether he claimed title to the same or 
not does not appear, except so far as it may be inferred from the fact of his 
collecting the rents, which it would appear he did not claim as his own, but 
divided the same amongst the widow of one of his brothers and his sister. What 
the nature of his claim was, from this evidence, it is impossible to determine, 
and it is clearly not that distinct claim of title which is required by the act 
in order to establish an adverse possession. It is found by the court that upon 
the death of the survivor of the children of Matthew, whatever interest the 
heirs of Matthew might have had escheated to the State, as they were at that 
time aliens. But it is also found that the release from the State to the 
plaintiff vested in her all the interest which the heirs of Matthew would have 
received if citizens.

It is clear, under the rule laid down in the case of Johnston v. Spicer (107 N. 
Y., 185) that the act under which the plaintiff claims is unconstitutional. In 
the case cited the title of the act was "An act to release the interest of the 
people of the State of New York in certain real estate to * * * and for other 
purposes." This title, leaving out "and for other purposes," is identical with 
the act under which Catharine McCabe claims to have received her interest from 
the State. The court held this to be unconstitutional because it embraced, in 
fact, more than one subject, namely, the transfer of title to real estate and 
for other purposes. And then they go on and say that if they were able to 
overcome this objection, the court were still of the opinion "that the lack of 
any intelligible reference in the title to the real object of the act, and its 
palpable misdescription thereof, is fatal to its validity. The true object of 
the enactment was, obviously, to convey to some one of the heirs of George 
Spicer the rights of property acquired by the State through escheat or 
forfeiture in the real and personal property of Ellen Spicer. No reference is 
made in the title to the former ownership of either George or Ellen Spicer, or 
to the fact that the State acquired its interest by escheat or reversion; no 
indication that the act was intended to transfer any interest in personal 
property, and no reference to the place or location of the property affected. 
There is absolutely no clue in the title by which the intention of any 
interested party would naturally be attracted to or informed of the real object 
of the act. The manifest intention of the constitutional provision was to 
require sufficient notice of the subject of proposed legislation of a private or 
local character to be so expressed in the title as to put not only interested 
parties, but also persons concerned in the proposed legislation, upon their 
guard, and to inform all persons reading it of the general purpose and scope of 
the act. 

While this is not required to be done by pursuing any particular formula or with 
much detail of specification, and great liberality of construction should be 
indulged in by the courts to uphold the constitutionality of legislation, yet a 
due regard to constitutional requirements demands that when its plain and 
obvious purposes are disregarded or evaded the judgment of the court should give 
effect to its provisions." And the court held that, for the reasons stated, the 
act was unconstitutional. The title to the act now under consideration being, as 
far as this question is concerned, the same, it falls within the rule thus laid 
down, and must be held to be unconstitutional, and nothing passed to the 
plaintiff thereby. Therefore, no matter which horn of the dilemma we take, the 
plaintiff did not acquire, under the proceedings in foreclosure, a good title, 
because, as far as the heirs of Matthew were concerned, their interest escheated 
to the State, and the State not being a party to the foreclosure, such interest 
was not cut off, and, secondly, because no right of the State has been released 
to Catharine McCabe by the act in question.

The judgment must be reversed and a new trial ordered, with costs to the 
appellant to abide the event.

Cullen, J., concurred.

Judgment reversed and new trial ordered, with costs to the appellant to abide 
the event.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

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