
    William R. Ferry and Another, Resp’ts, v. Rebecca Sampson and Others, App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 19, 1888.)
    
    1. Death—Proof of.
    Where one being about twenty years of age, and then unmarried, was last heard of or from nearly forty-two years ago, Held, that such absence was only sufficient to create a presumption of death. That it did not prove such person was dead.
    2. Adverse possession—When doctrine does not apply.
    The mother of said person took possession of land which had descended to him, claiming under her son, whom she supposed was dead. Held, that the doctrine of adverse possession would not apply.
    3. Specific performance of contract for sale of land—When burden OF PROVING DEATH OF PARTY ON VENDOR.
    Where in order to make a marketable title, it was necessary to prove the death of one R, and of his widow and children, if he left either, Held, that the burthen of the doubt was upon the vendor seeking specific performance of a contract for the purchase of land.
    Appeal from an order at special term granting motion of the purchaser that at a partition sale herein he be discharged from his purchase.
    
      Henry H. Mann, for app’lts; De Solis Rittenband, for resp’ts.
   Brady, J.

This is an action for a partition of property-held by tenants in common by descent, from Robert Waite Armstrong and others; the parcel in controversy belonging to Robert Waite Armstrong, to whom it was devised by his father, Thomas Armstrong, who died about February 1, 1833.

There is reason to suppose that Robert Waite Armstrong was a party to the probate of his father’s will, but who then being unmarried, and having his home and domicile originally in the city of Mew York, left that city prior to 1846, when about the age of twenty or twenty-one years. In a letter written in that year he stated that he was on his way home by way of Mew Orleans, where he would remain until spring and then come home. It seems he had been in Mew York on a return from an absence which took place prior to that year and about 1842, but no intelligence had been received from him after the letter written in 1846, to which reference has been made. His mother died prior to 1859, and sometime before her death, on the assumption that Robert was dead and she was his heir, took possession of the property and built upon it. One of the witnesses, a nephew, stated that neither Robert nor his brother Charles, who was also an absentee, had been heard of, in his recollection, for thirty-five years.

The evidence seems to be entirely satisfactory to the effect that nothing had been heard of or from Robert since 1846, a period now of nearly forty-two years. All the proof contained in the record in relation to the death of Robert creates, however, only a presumption, and a presumption which is of little strength. His family seem to have assumed his death to have taken place upon intelligence emanating from doubtful sources, and to have contented themselves with the receipt of such intelligence at the time it was given, many years ago, and, therefore, made no investigation. The history of men, and particularly those of an adventurous spirit, is not free from curious specimens of humanity, who, from potent reasons, have absented themselves from their kindred for a period equal to that which marks the absence of Robert W. Armstrong, and who had, in the meantime, contracted matrimonial relations and left issue.

Sometimes they have assumed that in their absence the property would necessarily go to and be divided amongst the relatives, a result which would be perfectly satisfactory to them, and which gave them therefore no concern. Sometimes from unfortunate incidents in their lives, which must be revealed if they presented themselves, and which they would make any sacrifice to suppress. It would not make any difference, however, if Robert should be living, or if his wife should be living, or his children should be living, whether he had suppressed the knowledge of his existence or it had been accidently withheld from his family and his friends, inasmuch as his claim to the property in question, or that of his family, must be recognized.

The doctrine of adverse possession does not apply to assist in removing the doubt, inasmuch as the mother took possession, claiming under her son, whom she supposed was dead, and held therefore under a title she supposed was derived through him.

It is unfortunate, perhaps, that there is not some positive'law governing such an absence, and it may be that the legislature will sometime make the proper provision with reference to it. The courts are not disposed to force upon a purchaser a title which is not marketable, and this title clearly would not be one of that character, inasmuch as there is reasonable doubt about the death of Robert.

For these reasons, nothwithstanding the elaborate argument on the part of the appellant, founded upon general principles, to show that, the purchaser should not be relieved of his purchase, it is thought that the learned judge presiding in the court below was justified in making the order appealed from. The burthen of the doubt as to the existence of Robert Waite Armstrong, or of his widow and children, if either exist, must be borne by his heirs connected with this controversy, and it should not be imposed on the purchaser, who should receive upon the payment of his money a title which he could dispose of when he thought of doing so, and without being obliged to overcome serious difficulties or impediments.

_ Order appealed from, affirmed, with ten dollars costs and disbursements.

Bartlett, J., concurs.  