
    Henry C. Miner, Plaintiff, v. Henry G. Hilton, Defendant.
    
      Contract to sell real estate—inability of the vendor to perform—action to recover a payment thereon — when the deed must be executed by the vendor and not by another — title by adverse possession.
    
    In an action to recover money paid on account on a contract for the sale of No. 37 West Twenty-eighth street in the city of New York, by the terms of which the defendant agreed to “ execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered,” to the plaintiff, a proper deed, containing a general warranty and the usual full covenants for the conveying and assuring to the plaintiff the fee simple of the premises, free from incumbrances, it appeared that, at the time for the completion of the sale, the title to the land was not in the defendant, but in one Hughes, who offered to convey it to the plaintiff, but the plaintiff objected that he was entitled to a deed from the defendant and also on the ground that the building No. 37 West Twenty-eighth street encroached two and three-quarters inches on land not covered by the deed, which appeared to be the fact.
    The court declined to submit any question to the jury, and directed a verdict for the plaintiff for the amount claimed.
    
      Held, that as the present action was brought, not in affirmance of the contract, but rather in rescission thereof, it was not incumbent upon the plaintiff to prove his readiness to perform the contract on his part, notwithstanding the fact that he had alleged such readiness in his complaint;
    That inasmuch as the defendant was unable to perform, no offer of payment to the defendant of the purchase money was requisite to put him in default.
    
      Semble, that as the stipulations in the contract were concurrent and dependent, neither party would be in a position to require performance from the other, unless he was then ready and willing to perform;
    
      Semble, that if readiness to perform had been an essential element of the plaintiff’s cause of action, inasmuch as the only testimony to support it was given by the plaintiff himself, and he was an interested party, the question should have been submitted to the jury.
    
      Quœre, whether, under the agreement to “ execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered,” a deed, the plaintiff was not entitled to a deed containing covenants of warranty made by the defendant.
    Where the record title to premises agreed to be conveyed under a contract for the conveyance of real estate is defective, but the vendor claims that the defect has been cured by adverse possession, the burden is on him to establish that fact.
    Mere possession for twenty years is not sufficient to establish title by adverse possession, as the possession of land is always presumed to be in subordination to the legal title.
    Motion by the defendant, Henry Gr. Hilton, for a new trial upon a ease containing excejitions, ordered to be heard at the Appellate Division in the first instance, upon the verdict of a jury in favor of the plaintiff rendered by direction of the court after a trial at the Hew York Trial Term on the 13th day of March, 1896.
    This motion was transferred from the first department to the second department.
    
      David May and A. H. Hummel, for the plaintiff.
    
      H. M. Whitehead, for the defendant.
   Bradley, J.:

The action was brought to recover damages for the alleged default of the defendant in performance by him of a contract made between the parties of date February 10,1892, whereby the defendant agreed to sell to the plaintiff a lot of land known as Ho. 37 West Twenty-eighth street in the city of Hew York for $80,000, of which $5,000 was then paid, and on receiving payment of the residue, as provided, the defendant agreed to “ execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered,” to the plaintiff a proper deed containing a general warranty and the usual full covenants for the conveying and assuring to the plaintiff the fee simple of fhe said premises free from incumbrances, the deed to be delivered, on April 30, 1892, at the place designated in the contract.

At the time the contract was made the defendant did not have the legal title to the premises described in the deed hereinafter mentioned, but had as vendee a contract made with one Roller as vendor, which last-mentioned contract the defendant assigned to John M. Hughes by an instrument executed in London, England, April 22, 1892. Afterwards, pursuant to such contract, Roher conveyed to Hughes a lot of -land on the northerly side of Twenty-eighth street in the city of New York, described by metes and bounds and designations, being known as No. 37 on West Twenty-eighth street.

The plaintiff was at the time and place designated in the contract for its performance. The defendant was not; but Hughes was there. The plaintiff had caused a series of objections to be written out, which indicated somewhat a purpose not to accept the deed of conveyance. The objections requiring attention are those that the deed is not one containing covenants of warranty by the defendant Hilton, and that the person executing the deed had not “ and never had title to the whole of the property No. 37 West Twenty-eighth street.” The evidence on the part of the plaintiff is to the effect that the objection was then made to Mr. Hughes that the building encroached two and three-quarter inches upon land not covered by the deed, and that the survey which had been made showing the encroachment was exhibited to him. Also the objection that the plaintiff was entitled to a deed with covenants of warranty from the defendant, who was the vendor in the contract. These objections so made preceded the tender, which was shortly after made in behalf of Hughes, of the deed made by him describing the lot by metes and bounds as it was described in the deed before mentioned, made by Roher to him. Hughes demanded performance of the plaintiff, who rejected the deed on the grounds specified and written out on the paper before mentioned, which was produced.

In this action, afterwards commenced, the plaintiff alleges the making of the contract, the payment by him of $5,000, readiness on his part to perform, and that the defendant in violation of the contract “ failed and refused to sell or convey to the plaintiff the said lot or parcel of land and perform the said contract on his part,” and refused to repay the $5,000. The purpose of the action was to recover .the money so paid by the plaintiff. At the close of the evidence the motion made for dismissal of the complaint was properly denied, and the court, having declined to submit any question to the jury, directed a verdict for the plaintiff for $5,000 and interest. Upon the exception then taken arises the main question for consideration. The stipulations of the parties in the contract, for performance on the day designated, were concurrent and dependent, and neither would he in a situation to require performance from the other unless he was then ready and willing to perform on his part. (Smith v. Smith, 83 Hun, 381.) If this was an essential. fact to the maintenance of the. present action, then it should have been submitted to the jury because the evidence of readiness of the plaintiff to perform the contract at that time on his part was only that given by him, and his relation to the action is such that the credibility of his testimony was a question for the jury. (Canajoharie N. Bank v. Diefendorf, 123 N. Y. 191.)

The cases cited by the learned counsel for the defendant in support of the proposition that it was necessary for the plaintiff to prove readiness on his part to perform the contract, and that if he depended upon an excuse for non-performance on his part it was necessary to allege the facts constituting such excuse, were those in which the actions proceeded in affirmance of the contracts and to require performance. Such were Clift v. Rodger (25 Hun, 39); Greenblatt v. Hermann (144 N. Y. 13),

The present action was brought upon the theory that the contract ceased to be operative or available for performance by reason of a breach on the part of the defendant, and the plaintiff seeks to recover the money he has paid upon the contract. It is true that the plaintiff alleged readiness and willingness on his part up to the time of the alleged breach. Was this necessary to the support of his action founded upon what in practical effect was a rescission to recover the money for breach of the contract on the part of the defendant ? It would have been good pleading to have alleged the specific fact which constituted the breach or failure to perform upon which the plaintiff relied. He, of course, must support his alleged breach by proof, and if his readiness to perform was necessary to enable him to assert such breach, the proof of that fact was essential to recovery by the plaintiff. (Lawrence v. Taylor, 5 Hill, 107, 115 ; Bigler v. Morgan, 77 N. Y. 312, 318; Smith v. Rogers, 42 Hun, 110 ; Morange v. Morris, 3 Keyes, 48.)

The evidence did establish the fact that the deed made by Bober to Hughes, and that executed by Hughes and tendered to the plaintiff, did not cover all the land upon which stood the house or building No. 37 West Twenty-eight street, but that the building encroached two and tliree-fourths inches upon land east of the lot included in those deeds. Tire proof of that fact was prima facie evidence that neither the defendant nor Hughes could convey a marketable title to the plaintiff — such a title as a prudent person knowing the fact would not hesitate to take. (Moore v. Williams, 115 N. Y. 586 ; Irving v. Campbell, 121 id. 353 ; Wilhelm v. Federgreen, 2 App. Div. 483.)

It does not appear how long the building has been there. A witness testified that he had known of its standing there for twenty-three years. If the strip of land covered by its east side has been thus occupied under claim of title for twenty years, or if the east line of the house has, by acquiescence of its owner and the owner of the adjacent premises, been treated as the line for that length of time, then it will be deemed to have been established as such. (Baldwin v. Brown, 16 N. Y. 359 ; Reed v. Farr, 35 id. 113.)

But the mere fact that the encroachment had existed for twenty years or upwards was not sufficient evidence that the adjacent owner was concluded from asserting title to the two and three-fourths inches on which the building encroached. The possession of land is presumed to be held subordinately to the true title until such presumption is repelled by evidence that it has been and is held under claim of title adversely or in hostility to the true owner, who may claim title to it. (Doherty v. Matsell, 119 N. Y. 646.) And if the line had been thus established, so as to perfect title in the vendor, or his assignee, to the land so encroached upon, the burden was with the defendant to prove the fact. (Hartley v. James, 50 N. Y. 38 ; Wilhelm v. Federgreen, 2 App. Div. 483.)

As has been observed, it was proved that the objection on account of the encroachment was raised in behalf of the plaintiff when he and Hughes met at the time designated to complete performance of the contract. The only evidence tending to be contradictory of such fact is that of a witness who does not contradict it further than saying that, after he came there, nothing was said in his hearing about any encroachment. There is evidence to the effect that the objection was made to Hughes before that witness arrived. Mr. Hughes does not become a witness to contradict it, nor is there any evidence to the contrary.

The exception to the reception of the evidence about the encroachment, on the ground that it was not alleged in the complaint, we think, was not well taken, for the reason, before indicated, that the action was not one to enforce performance of the contract, but to recover the money paid because of the breach arising from the inability and failure on the part of the defendant to make the deed of conveyance to Which the plaintiff was entitled by the terms of the contract ; and inasmuch as the defendant, through Hughes, was unable to perform, no offer of payment to the defendant of the purchase money was requisite to put the defendant in default, or for the plaintiff to protect himself against such imputation. (Hartley v. James, supra.)

It is by no means clear that the plaintiff was not entitled to the covenant of warranty of the defendant. He was, unless the words or cause to be executed ” and delivered to the plaintiff, a deed with covenants, etc., required the latter to accept the covenant of any person by whom the title should be held when the time arrived for performance of the contract, (Robb v. Montgomery, 20 Johns. 15 ; Bigler v. Morgan, 77 N. Y. 312.)

In James v. Burchell (82 N. Y. 108) the contract in question contained a like provision, that the plaintiffs agreed to “ convey, or cause to be conveyed,” to the defendant the premises in fee by a full covenant warranty deed. The plaintiffs conveyed the premises to another. It was held that this, under the circumstances of the case, relieved the defendant from further performance of the contract, and in the opinion of the court it was said that some stress was laid upon the provision in the contract, that the plaintiffs agreed “ to sell and convey, or cause to be conveyed.” This, it was held, was not controlling, and that the testimony showed that the defendant did not intend to accept any other warranty than that of the plaintiffs. It is reasonable to suppose that usually, when a vendee takes a contract containing a provision for conveyance with covenants of warranty, he has in view the responsibility of his vendor, unless something appears to the contrary in the contract. The provision that the vendor will do it, or cause it to be done, as expressed in the contract in question, does not, I think, indicate a purpose to enable him to relieve himself from making the covenant by the substitution of such other person as he may choose to take the relation of grantor and covenantor.

These views lead to the conclusion that the defendant’s exception be overruled, and that the plaintiff have judgment upon the verdict.

All concurred.

Exceptions overruled, and judgment directed for plaintiff on verdict, with costs.  