
    Robert Porterfield, Resp’t, v. William Payne, App’lt.
    
      (Supreme Court, General Term, Second Department
    
    
      Filed July 18, 1890.)
    
    VENDOS AND PÜBCHASBB — DOUBTEÜL TITLE.
    Where the vendor's title to a part of the premises is derived through a deed from the registrar of arrears, and there exists a question as to the constitutionality of the act under which the tax for which the sale was had was imposed, the title is doubtful and not marketable, and the purchaser is not required to complete, but may recover back the money he has paid.
    Appeal from judgment of special term in favor of plaintiff.
    Action to recover back money paid upon a contract for the sale of land. Plaintiff refused to complete on the ground of defective title. A portion of the premises was conveyed to defendant by a tax deed from the registrar of arrears on a sale for taxes under the act of 1883, a portion of such tax consisting of unpaid water rents. The court below held that as to such portion the title was not a marketable one, by reason of doubtful questions of law as to the constitutionality of the act authorizing said sale and the validity of the proceedings resulting in the said sale, owing to the fact that among the taxes, etc., unpaid, and in arrears, upon the said premises, were certain claims for water rates, and that plaintiff should not be required to specifically perform.
    
      Jos.- A. Burr, Jr., for app’lt; David K. Case (A. Loving Cushing, of counsel), for resp’t.
   Dykman, J.

The defendant in ■ this action entered into a written agreement with the plaintiff to sell and convey to him a piece of land in the city of Brooklyn, and the plaintiff paid to the defendant the sum of $1,500 on account of the purchase price of the land.

Upon a claim that the title to the premises is defective and unmerchantable the plaintiff commenced this action for the recovery of the money he so paid to the defendant, and the defendant in his answer, insisting upon the perfection of his title, demands a judgment for the specific performance of the contract.

The action was tried before a judge without a jury, and he found that there were existing incumbrances upon the property, and that the defendant could not give a title thereto in compliance with the terms of the agreement, that the title was not merchantable, that the plaintiff should not be required to perform the contract of purchase and should recover back from the defendant the money paid under the contract together with seventy-five dollars expenses incurred by him in the examination of the title to the property.

Judgment has been entered upon such findings, from which the defendant has appealed.

Our examination of the case leads us to coincide with the findings and judgment the special term. To say the very least of the defendant's title it is doubtful as to a part of the premises and the doubt is sufficient to render it unmerchantable.

The judgment should be affirmed, with costs.

Dykman and Pratt, JJ., concur.  