
    Edward S. Fowler, Substituted Trustee under the Last Will and Testament of Jane Ferguson, Deceased, Appellant, v. Seligman Manheimer, Respondent.
    
      Marketable title—whatis—title acquired by a widow of the deceased owner by virtue of an escheat act of the Legislature—when the release by the State is “subject to any right,” etc:, the Statuteof Limitations does not run inker favor.
    
    In"1860, John Furgeson died- seized of real property, located in the city of New" York, having been naturalized just prior to the time that he acquired title thereto. His widow obtained letters of administration upon his estate and alleged in the petition therefor that the only next of kin of her intestate was his sister Elizabeth, who resided in Scotland when last heard from, about fourteen years previous to the filing of the petition. By chapter 603 of the Laws of 1867, the interest of the people of the State of New York in the premises was released to Mrs. Furgeson; the act providing that she should hold the land, “subject to any right, claim or interest of any purchaser, heir at law or devisee, or of any creditor by mortgage, judgment or otherwise, in the said real estate.”
    Mrs. Furgeson remained in- possession of the premises until her death, which occurred in April, 1897. Thereafter the trustee under her will entered into a contract to sell the premises, and, upon the refusal of the vendee to accept the title, brought an action to compel the specific performance of the contract of sale. Upon the trial it appeared that the sister of John Furgeson, referred to in the petition for letters of administration upon his estate, had married, but ' the record did not disclose whom she married or the time when the marriage occurred.
    
      held, that the plaintiff was not entitled to the relief sought;
    
      That the evidence did not establish that the sister, Elizabeth, at the time John died, was an alien, or that intermediate the time when she was last heard from and John’s death, she had not married a citizen of the United States and did not then have living issue of such marriage;
    That, in the absence óf evidence bearing upon the subject, it could not be assumed that she was dead, at the time the petition for letters of administration was filed, simply because she had not been heard of for fourteen years, and that the statement of Mrs. Furgeson in the petition and her subsequent declarations were not sufficient to establish that John Furgeson did not leave other heirs at . law capable,of inheriting the property;
    That the plaintiff had not acquired a good title h)' adverse possession, because ■ the act of the Legislature expressly provided that Mrs. Furgeson should hold subject to the rights of any heirs at law.
    A vendor.in a contract for the sale of land is not entitled to a judgmentrequiring the vendee to specifically perform the contract, unless he has tendered a title which is free from reasonable doubt, and if, after a fair consideration of the title tendered, a reasonable man would hesitate to take it, it cannot be said to be free from reasonable doubt and the vendee is justified in refusing to perform..
    Appeal by the plaintiff, Edward S. Fowler, substituted trustee under the last will and testament of Jane Ferguson, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 12th day of March, 1901, upon the decision of the court rendered after a trial at the New York Special Term.
    
      Abel E. Blackmar, for the appellant.
    
      Samson Lachman, for the respondent.
   McLaughlin, J.:

This action was brought to compel the specific performance of a contract for the sale of certain real estate in the city of New York, the defendant having refused to perform upon the ground that the title tendered was unmarketable, and the question presented upon this appeal is whether or not the defendant was justified in his refusal.

The facts, so far as the same are material to the question presented, are as follows : In 1860 one J ohn Ferguson, it is conceded,, acquired good title to the premises by a deed of conveyance, which was recorded on the ninth of March of that year. He died intestate on the 11th of October, 1866, leaving him surviving his widow, Jane Ferguson, who applied to and obtained from the Surrogate’s court of the county of Hew York letters of administration upon his estate. In .the petition filed for such letters, she stated that the only “ next of kin ” of her intestate was a sister Elizabeth, who, when last heard from, which was about fourteen years previous, resided in Scotland.

In 1867, by an act of the Legislature of that year (Chap. 603), all the estate, right, title and interest of the People of the State of Hew York of, in and to the premises in question were released to Jane Ferguson, the widow of John Ferguson, but the act expressly provides that she shall hold the land under such release, “subject to any right, claim or interest of any purchaser, heir at law or devisee, or of any creditor by mortgage, judgment or otherwise, in the said real estate.”

John Ferguson, at the time of his death, was in possession of the premises in question, and Mrs. Ferguson, from the death of her husband, continued to occupy the same until her death, which occurred in April, 1897. She left a will which was admitted tó probate, and in which certain trusts were created, and the trustee therein named having died, the plaintiff in this action was substituted, and, as such substituted trustee, he .entered into the contract with the defendant. At the time fixed for the closing of the contract, the plaintiff was ready, and willing to perform, but the defendant refused to perform, upon the ground that the title to the land is in the heirs at law of John Ferguson, and that Jane Ferguson, through whom the plaintiff claims, never had any title at all. Other objections were raised, but it is unnecessary' to consider them in view of the conclusion at which we have arrived.

An action for specific performance is an equitable one, and to entitle the plaintiff to the relief asked proof must be presented which clearly and satisfactorily, establishes that he is equitably entitled to it. (Heller v. Cohen, 154 N. Y. 306.) He is not entitled to such relief under a contract for the sale of land, unless he has tendered a title which is free from reasonable doubt (Vought v. Williams, 120 N. Y. 257), and if, after a fair consideration of the title which he has tendered, a reasonable man would hesitate to take it, then it cannot be said to be free from reasonable doubt, and a party who has agreed to take is justified in refusing to- perform, and as has many times been said for the reason that a purchaser of real estate ought not to be compelled to take a title which he may be obliged to defend by litigation (McPherson v. Scxhade, 149 N. Y. 16) ; that he is entitled to a marketable title free from doubtful questions of fact or law. (Brokaw v. Duffy, 165 N. Y. 391.) Under these authorities and many others that might be cited to the same effect we are of the opinion that the defendant was justified in his refusal to accept the title tendered him. If the plaintiff lias good title it must be conceded it is solely by virtue of the act of the Legislature, and whether that act accomplishes that purpose, of course, depends upon the fact as to whether John Ferguson, when he died, had heirs at law who were capable of taking the title under the statutes of the State of New York. It is true, in the petition made by Jane Ferguson for letters of administration upon her husband’s estate, she stated that his only “ next of kin ” was a sister, Elizabeth, who had not been heard of for about fourteen years, at which time she resided in Scotland, and in this connection it also appeared that John Ferguson was naturalized just prior to the time he acquired title, and that he came from Scotland, but this proof fell far short of establishing that the sister Elizabeth, at the time John died, was an alien, and for which reason she could not inherit from John, or that intermediate the time when she was last heard from and John’s death she had not married a citizen of the United States and had living issue by such marriage. It, however, did appear that the sister was married, but the record fails to disclose whom she married or the time when the marriage occurred. It cannot be presumed, in the absence of evidence bearing upon the subject, that because the sister had not been heard of for fourteen years that she was dead, any more than it can be presumed that she was, at the time of the death of John, an alien, or did not have children who could inherit. (Vought v. Williams, supra.) Nor do we think that the statement of Jane Ferguson, in the petition referred to", or her subsequent declarations upon the subject, were sufficient to establish the fact that John did not leave other heirs at law capable of inheriting under the statute.

The plaintiff is asking for a specific performance of the contract,. and before he can become entitled to that relief he must establish, beyond a reasonable doubt, that the title which he tendered was good, and. this he can only do by showing that John Ferguson, at the time he died, did not leave any heirs at law, capable of inheriting under the statutes of the State of New York, and for that reason the title is escheated to the State. (Simis v. McElroy, 160 N. Y. 156.)

In the ease last cited the court held that title by adverse possession is not shown where there is a failure to negative the possibility of an outstanding claim by the heirs of a former owner as to whom the adverse possession was open to contingencies of remaindership and infancy; So here, we think the plaintiff failed to show the title he tendered was marketable, inasmuch as he failed to negative the possibility that John Ferguson left heirs at law capable of inheriting. ; The burden was upon the plaintiff, and not upon the defendant, to establish such facts. • But it is said that plaintiff has acquired good title by adverse possession. This cannot be, because the only interest which Jane Ferguson acquired was by virtue of the act of the' Legislature, and that expressly provided that her interest must be held subject to any right of heirs at law.

It follows, therefore, that the judgment appealed from must be affirmed, with costs.

Van Brunt, P. J., O’Brien, Ingraham and Hatch, JJ., concurred.

Judgment affirmed, with costs.  