
    Edward Albert Ridley, as Sole Surviving Trustee under the Last Will and Testament of Edward Ridley, Deceased, Respondent, v. Magdalena Walter and Others, Defendants, Impleaded with Max Cohen, Respondent. Kank Realty Company, Appellant.
    First Department,
    November 8, 1912.
    Foreclosure ■— sale — relief of purchaser from bid.
    Where, on a motion by the assignee of a purchaser at a foreclosure sale to be relieved from his bid because of a defect in the title to the premises, it appears that a third person may be in a position to assert a claim ■which "will require litigation to determine and which cannot be definitely settled in the proceeding, to which such person is not a party, the court will grant the relief asked.
    Appeal by the Kank Realty Company from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on the 19th day of April, 19Í2, denying the appellant’s motion to be relieved from its purchase of certain premises sold under a judgment of foreclosure and sale, and also from an order entered in said clerk’s office on the 28th day of May, 1912, as resettled, denying the said appellant’s motion for leave to renew its former motion.
    
      John H. Post, for the appellant.
    
      Middleton S. Borland, for the respondents.
   Scott, J.:

These are appeals by the assignee of a purchaser at a foreclosure sale from an order dónying its motion to be relieved of its bid, and from a further order denying its motion for a reargument of its former motion. We consider both appeals together because certain facts which the appellant deems important are contained in the papers used on the second motion, which were not presented to the court on the first motion.

The premises affected lie on the northerly side, of One Hundred and Sixty-sixth street in the borough of the Bronx between Washington avenue and Park (formerly Railroad) avenue. The property was described in the mortgage and in the terms of sale by metes and bounds, 'the description commencing the boundaries of the lot at a point on East One Hundred and Sixty-sixth street “ at the westerly boundary of lands now or formerly of George Hull.” The only objection to the title which is seriously urged, and that need be considered, is the supposed claim of the owner of the Hull property to the ownership of, or the right to occupy and use, a strip of land about 2 feet 8 inches in width running back the full length of the lot, being part of the land mortgaged and lying next west of the Hull property.' The present owner of the Hull property, Mrs. Anna E. Spaeth, has record title only to the easterly line of the mortgaged property, to wit, a line 158 feet west of Washington avenue, the westerly side of her house being on the westerly line of her lot. She derived title from her husband, John L. Spaeth, in 1897. He acquired the premises in 1864 from one Catherine E. James. When John L. Spaeth acquired possession the strip in question was inclosed by a fence. That fence or its successor has been maintained ever since by said Spaeth or his wife, and still stands, although in a somewhat dilapidated condition. On the strip is laid a plank walk which has been continuously used by Mrs. Spaeth and her husband for a good many years, probably more than twenty. Under what claim of right, if any, the Spaeths, husband and wife, have continued to occupy, and use this strip of land is not made clear. True, Mrs. Spaeth says that when her husband -acquired the Hull property in the year 1864 he considered and claimed the fence on the westerly side of the strip as the westerly boundary of his land and that during his lifetime and until his conveyance to his wife he maintained possession of the strip and claimed to he the owner thereof. That he and his wife after him retained the use and possession of the strip is doubtless true, but the wife’s affidavit as to how he claimed to be the owner of it lacks specification as to how such claim was expressed. That he did not claim to be the owner of it in 1897 is made quite clear from the fact that when he conveyed the Hull property to his wife in that year he so conveyed the property by a description which fixed its westerly boundary as 158 feet from Washington avenue, being the line of the westerly line of the house erected upon the premises and excluded from the description the whole of the disputed strip. This amounted, as we think, to a disclaimer by him of any claim to the ownership of the strip and conclusively answers the contention that he then claimed to own it and undertook to convey it to his wife. She cannot, therefore, establish a claim to title by adverse possession upon the strength of any claim of title which may previously have been made by her husband, and she herself has not been in possession for twenty years so as to erect a claim of title upon her own adverse possession.

We are not entirely satisfied, however, that, even if Mrs. Spaeth could not establish a claim to an absolute title by adverse possession, she might not give a purchaser considerable trouble by asserting the ownership, as an appurtenance to her lot, of an easement of access over the disputed strip. Her possession and use and that of her husband before her has been open, notorious and continuous apparently for much more than twenty years and has been adverse to the real owner in that the Spaeths, by keeping the strip fenced off, have openly asserted their right to its exclusive use. We do not desire to be understood as deciding or even intimating that such a claim could be successfully maintained. • To so decide would probably require the consideration of facts not contained in the papers on appeal.

It is sufficient for the purposes of this appeal that Mrs. Spaeth might be in a position to assert a claim which it would require litigation to determine and which cannot be definitely determined in this proceeding to which she is not a party. “A purchaser on a partition or foreclosure sale has a right to expect that he will acquire a good title, and the law presumes that he bids with that object in view. He should not be left upon receiving, a deed to the uncertainty of a doubtful title or the hazard of a contest with other parties which may seriously affect the value of the property if he desires to sell the same.” (Jordan v. Poillon, 77 N. Y. 518. See, also, Fleming v. Burnham, 100 N.Y. 1; Couter v. Crouter, 133 id. 55; Wanser v. De Nyse, 188 id. 378.) What was said in Koechl v. Gate Development Co. (149 App. Div. 239; affd., 205 N. Y. 591) is applicable to the present case:. While it is true that the affidavits submitted upon the motion do not conclusively show that there is any defect in the title, it is plain to be seen that there is an opportunity for a lawsuit, which appears to be threatened * * *. It is true that the facts do not appear positively, but there is clearly enough of the claim of the Greenwich Company to make it fairly certain that the title to the premises will be brought into question in some kind of an action, and it. would be a hardship to the purchaser * * *■ to compel him to stand the expense and annoyance of a lawsuit.” We think that under the rule established in the foregoing and many other cases enough has been shown to entitle the purchaser to relief from his bid, with a return of the ten per cent and auctioneer’s fees paid on the sale- with interest, and the reasonable charges incurred in the examination of the title. If the referee -has not enough in his hands to meet these payments the deficiency should be made up by the plaintiff. (Raynor v. Selmes, 52 N. Y. 579; Builders Mortgage Co. v. Berkowitz, 142 App. Div. 57; affd., 201 N. Y. 596.)

The orders appealed from will, therefore, be reversed, with ten dollars costs and disbursements on each appeal to the appellant, and the motion for relief from the bid will be granted, with ten dollars costs. ,

Ingraham, P. J., Clarke, Miller and Dowling, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.  