
    (86 Hun, 203.)
    WILLIAMSON v. BANNING.
    (Supreme Court, General Term, First Department.
    April 11, 1895.)
    Vendor and Purchaser—Marketable Title.
    Where a vendor’s only evidence of title is a record of a paper purporting to be a deed to him, acknowledged before a commissioner of deeds of the state of New York in Pennsylvania, but there is no certificate as to the official character of such commissioner, and the deed itself cannot be found, and no one who took part in its execution can be produced as a witness, the vendor’s title is not marketable.
    Controversy between Smith Williamson, as executor of the will of John L. Burnett, deceased, plaintiff, and Jessie T. Banning, defendant, submitted without action on an agreed statement of facts.
    Judgment for defendant.
    
      Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.
    James C. De La Mare, for plaintiff.
    William Langdon, -for defendant.
   PARKER, J.

It may be possible that facts exist which would establish a marketable title in the plaintiff, but they are not stated in this record. Plaintiff claims through one James H. Hallock, and, to show title in him, is able to produce only a record of a paper purporting to be a deed to him by James Rutherford, dated May 8, 1854, and recorded in the clerk’s office of the county of Westchester May 17, 1854. The record of such instrument purports to have been acknowledged by the grantor before a commissioner of deeds for the state of New York, in Philadelphia, state of Pennsylvania; but there is no certificate recorded therewith under the hand and seal of the secretary of state, of the state of New York certifying that the person taking such acknowledgment was a commissioner of deeds of the state of New York, as required by statute, in order to entitle a deed “to be used, recorded or read in evidence.” The agreed statement of facts concedes that it cannot be shown outside of the record that the deed was actually executed, acknowledged, and delivered. The deed cannot be found, and it is admitted that no living witness can now be produced who took part in its execution, or who can state of his own knowledge any facts concerning it. Nor does it appear that Hallock took possession under such instrument. On the contrary, it is stipulated “that there is no evidence now known to the parties to this submission that John Hallock ever took actual possession of the said premises under or after the said deed of conveyance last above described.” Summarized, the situation is as follows: The plaintiff has no record title, cannot establish by secondary evidence the execution and delivery of a deed to Hallock, and is unable to prove that actual possession of the property was ever taken by or under Hallock prior to August, 1886. The title which he offers to the defendant is not therefore marketable.'

Judgment is ordered that the defendant be released from the contract, and that the plaintiff pay to her the $500 advanced on ac: count of the purchase price, with interest from November 26, 18.94, together with the sum of $100 for expenses incurred in examining title, with costs. All concur.  