
    Kneller et al. v. Lang.
    
      (Supreme Court, General Term, Fifth Department.
    
    January 22,1892.)
    1. Vendor and Vendee—Refusal to Complete Purchase—Defective Title.
    Where plaintiffs, by a written contract with defendant, agree to convey to him, by warranty deed, land which defendant agrees to take and pay for, and the records fail to show title out of one who was owner more than 30 years before, and an action is necessary to remove the cloud and give plaintiffs perfect title, the defendant is relieved from his contract.
    2. Adverse Possession—Paper Title.
    Where a land-owner accepted a mortgage on the land, which recited that it was given for the purchase money of such land, and the mortgage was afterwards paid by the mortgagor and satisfied by the assignee of the mortgagee, and the mortgagor and his grantees thenceforth remained in undisturbed possession for more than'20 years without any deed from the mortgagee or action to quiet title, their possession did not ripen into a perfect title, under Code Civil Proc. § 369, providing that, to create such title by 20 years’ adverse possession, it must be held under a claim of title exclusive of any other right, founding the claim on a written instrument as being a conveyance of the premises in question.
    3. Conveyance of Land—Requirements—Written Instrument.
    An instrument in writing subscribed and sealed by the person from whom an estate is intended to pass is necessary to convey the fee to land in New York.
    Case submitted on agreed statement.
    Controversy between John F. Kneller and Mary Kneller on the one part, and Gerhard Lang on the other, submitted without action.
    The facts agreed on are as follows: On the 30th day of January, 1891, the parties to this action entered into a written contract of sale, the plaintiffs agreeing to convey by warranty deed to the defendant certain lands in the town of Cheektovvaga, county of Erie, containing about 82 acres, for the sum of $20,000; the contract being in form in all respects sufficient to bind the parties. The premises consisted of three adjoining parcels, and for the purpose of identification were numbered 1, 2, and 3 in the submission papers. The controversy concerns parcel Ho. 2, which lies in between and adjoining parcels 1 and 3. More than 30 years ago one James Sheldon was the owner of the three pieces of land. The records of the county of Erie fail to show title out of Sheldon of parcel Ho. 2. April 29,1851, one Philip Gauchat gave a mortgage to Mr. Sheldon covering parcel Ho. 2, to secure the sum of $602. The mortgage contained the following clause: “This mortgage being given to secure the payment of the purchase price of the above-described premises. ” The mortgage was properly recorded. Sheldon assigned the mortgage, December 10,1851, to Mr. John Hi Bliss, and Bliss began an action, March 17, 1854, against Philip Gauchat for the foreclosure of said mortgage. Bliss discharged the mortgage to Philip Gauchat by an instrument bearing date December 4,1851,, and which was duly recorded February 13,1854. The records fail to show any title in Gauchat of parcel Ho. 2, but on or about September 11,1854, he conveyed said piece by deed recorded October 19, 1854. Gauchat and his several grantees were in the undisturbed possession of said piece for 20 years and upwards, and the plaintiff John F. Kneller is one of said grantees. Sheldon died intestate, May, 1887, leaving him surviving several children, some of whom are minors. Ho action or proceeding at law has 'ever been brought or instituted to establish the rights of the Sheldon heirs' to this property. The plaintiffs executed, acknowledged, and tendered to the defendant a good and sufficient deed of conveyance of the premises. Defendant refused to complete his contract for the purchase of the lands, giving as the reason for such refusal that the title to the whole premises was not complete and perfect in the plaintiff John F. Kneller; but that the omission or want of a deed from Sheldon is a cloud upon the title, and that by virtue thereof some person or persons other than John F. Kneller have some right, title, or interest therein. The plaintiffs claim that the title to the land is perfect and complete, and insist that Lang shall perform his contract, and they demand judgment to that effect. Ho other objection is raised to the title.
    Argued before Dwight, P. J., and Macomber and Lewis, JJ.
    
      Clarence W. Wilson, for plaintiffs. James G. Smith, for defendant.
   Lewis, J.

The defendant is entitled to a good, merchantable title,—one that he can sell in the market, and upon which he can, if he desires, procure. a loan of money. The record title is concededly imperfect, there being no record evidence that Philip Gauchat, under whom the plaintiffs claim title, ever had a deed of the premises. An instrument in writing, subscribed and sealed by the person from whom the estate or interest conveyed is intended to pass, is necessary to convey the fee to land in this state. The acceptance of the mortgage containing the clause mentioned did not convey a title to the premises to Gauchat. It was sufficient to raise a presumption that Gauchat had at least an equitable interest in the property, which might entitle him to a conveyance,' if one had not been made; but, to make it available, an action would be necessary, and the Sheldon heirs would have to be parties thereto in order to obtain an adjudication which would bind them. It is not incumbent upon the defendant to institute and prosecute such an action in order to perfect the title. It is contended by the plaintiffs that Philip Gauchat and his several grantees having been in the undisturbed possession of the premises for 20 years and more, and the plaintiff John F. Kneller being one of the grantees, his title to the premises is complete. Section 369, Code Civil Proc. The admitted facts fail to state that they were in possession, founding their claim upon a written instrument, as being a conveyance of the premises in question. It was necessary, in order that their possession of the premises for 20 years should ripen into a title, that it should be held under a claim of title exclusive of any other right, founding this claim upon a written instrument, as being a conveyance of the premises in question. There is nothing in the papers showing that these premises were thus held. While there are authorities holding that a purchaser at a judicial sale may be compelled to take a title obtained by a continual possession of 20 years, the title must be accompanied with proof of such possession. The burden of procuring the evidence to establish the continuous possession for the requisite time cannot be imposed upon the purchaser’. It was not contemplated by the parties entering into the contract that such a burden was to be imposed upon the defendant. Plaintiffs have, we think, failed to show that they have a merchantable title to the premises, and the defendant is entitled to judgment that he be relieved from fulfilling the contract. So ordered. All concur. 
      
       Code Civil Proc. § 369: “Where the occupant, or those under whom he claims, entered into the possession of the premises under claim of title, exclusive of any other right, founding the claim upon a written instrument, as being a conveyance of the premises in question, or upon the decree or judgment of a competent court, and there has been a continued occupation and possession of the premises * * * for twenty years under the same claim, the premises * * * are deemed to have been held adversely. * *
     