
    Edward Greenfield, Respondent, v. Oswin J. Mills, Appellant.
    Second Department,
    December 23, 1907.
    Real property—vendor and purchaser—'marketable title — incumbrances — prior mortgage extinguished — immaterial shortage.
    A vendee who has contracted to buy lands subject to an existing mortgage of ■ $25,000 cannot refuse title upon the ground that the incumbrance is made up of two mortgages aggregating that amount.
    Nor can he refuse title because of a prior mortgage payable in one year executed in 1843 when the mortgagor two years later conveyed the land to the mortgagee with full covenant of warranty and the mortgagee thereafter conveyed by like deed to the vendor’s predecessor in title. This, because the covenant against incumbrances extinguished the mortgage, and because, in the absence of proof of payments on the mortgage, payment is presumed after the lapse of twenty years.
    Although the contract of sale described the land as eighty-two feet ten inches in depth, a shortage of one inch is too unsubstantial to entitle the vendee to refuse title.
    Appeal by the defendant, Oswin J. Mills, from a judgment of the Municipal Court of the city of New York in favor of the plaintiff.
    
      Walter E. Warner, for the appellant.
    
      Charles S. Carrington, for the respondent.
   Gaynor, J.:

This is an action to recoverback a deposit of $200 paid by the ' plaintiff to the defendant on a contract for the sale of a city lot by the latter to the former. The contract describes the land as 82 feet 10 inches in depth. It fixes the contract price' at $7,000 and provides that $2,500 thereof is to be paid by' the purchaser assuming a mortgage which is already thereon for that amount, and that $1,500 be paid by giving a bond and. mortgage back for that amount, the balance to be paid in cash. • The plaintiff refused to take title on the'contract day and , demanded his deposit back on the grounds (1) that instead of there being a mortgage on the property for $2,500 there were two- mortgages, one of $2,000 and one of $500, (2) that there was still another mortgage of $150, and (3) that one of the sides of the lot was 82 feet 9 inches. in depth instead of 82 feet 10 inches.'

- That there were two mortgages making up the $2,500 was of no consequence.. The mortgagor of the mortgage for $150 had conveyed the land by a full covenant warrantee deed to the mortgagee in 1843, and the latter afterwards, viz., in 1845, conveyed the land free and clear of the said mortgage by a like déed to a predecessor of the defendant in the title. This does not present a, question of merger; the covenants against encumbrances in the conveyance by the mortgagee wiped out the said mortgage: But if that had not been the'case, there is a presumption of payment in the absence of any proof of .payments on the mortgage during the more than twenty years it has been due (Ouvrier v. Mahon, 117 App. Div. 749). It was made in 184R and is payable in-one-year. The objection that- one side of the lot was an inch short was unsubstantial, but in addition it was not proved. The plaintiff’s, attorney testified that he found that the map for the opening of the street in front took off an extra inch on one side of the lot, but he refused to produce the survey which he had had made, and on cross-examination admitted that it conformed to the description in the contract.

The judgment should be reversed.

Jenks and Hooker, JJ., concurred; "Woodward and Rich, JJ., dissented. •

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.  