
    Mary Katz, as Executrix, etc., of Abraham Katz, Deceased, and Louis Maier, Respondents, v. Joseph Kaiser, Appellant.
    
      A mortgage, when presumed to he paid after twenty years — when a one-half inch encroachment of a building on a street is not a defense to specific performance — when artificial boundaries control measurements and distances— Code of Civil Procedure, § 414; 3 B. 8. 301, § 48.
    In an action for specific performance, a mortgage dated and recorded in 1839, as to which there is no proof of any subsequent payment made upon it, or of any subsequent written acknowledgment of the existence of a right of action upon it, will be presumed to have been extinguished under the provisions of the Revised Statutes relative to rights of action which accrued upon a sealed instrument for the payment of money.
    The fact that a building, which has stood in its present situation for over thirty years without objection on the part of any one, is found to encroach a half an inch upon the street, does not constitute a valid objection which will justify a purchaser in refusing, to accept the title.
    One Roberts owned lots 745 and 747 East Ninth street. lie built a house on lot 747 which encroached upon lot 745 on the west three and a half inches. Afterwards he conveyed lot 745; and then lot 747, describing it by metes and bounds, and stating that it was “lot known as No. 747 East Ninth street.” The plaintiff Roberts’ grantees contracted to sell the lot to defendant, who refused to take it because the title was defective on account of the encroachment upon the adjoining lot. In an action for specific performance, it was held:
    
    
      First. That the placing of the west wall of the house over the line of the lot as measured was a practical location of that line by Roberts.
    
      Second. That the artificial boundary established by the erection of the west wall of the house fixed the location of that line in preference to the measurement ■which did not agree with the location.
    Appeal by the defendant, Joseph Kaiser, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of ¡New York on the 26tli day of June, 1896, upon the decision of the court rendered after a trial at the ¡New York Special Term.
    
      T. M. Tyng, for the appellant.
    
      Samson Lachmann and Theodore Baumeister, for the respondents.
   Rumsey, J.:

In March, 1895, Abraham Katz and Louis Maier made an agreement with the. defendant to sell him a certain piece of property situated on Ninth street, in the city of New York. When the time, came for the execution of the conveyance, the defendant declined to take the property for certain reasons, which will he more particularly stated hereafter, and refused to carry out the contract. This action was then brought by the executor of Katz and by Maier to compel a specific performance, on the part of the defendant, of his contract to take the property. The case was tried at the Special Term and resulted in a judgment for the plaintiffs directing the specific performance of the contract, and from that judgment this appeal has been taken..

Two objections were made by the defendant to the title. The' first was that there was an unsatisfied mortgage upon the property. The facts in relation to that mortgage, as they appear by the proofs, are that there is unsatisfied of record a mortgage dated on the 7th day of January, 1839, and recorded on the twenty-second of February in the same year,- to secure something over $1,500. It does not appear by whom the mortgage was made, but for the purposes of this opinion it will be assumed, as it was assumed on the argument, that it was executed by some one who at that time had title to the property, as that was probably made to appear by the evidence upon the trial.

The time when the mortgage became due does not appear, and, therefore, it must be assumed that it was payable on demand and at its date. (Martin v. Stoddard, 127 N. Y. 61, 63.) The cause of action, therefore, accrued before the 1st day of July, 1848, and the Statute of Limitations in force at that time applies to the cause of action upon this mortgage. (Code Civ. Proc. § 414.) That statute reads as follows: After the expiration of twenty years from the time a right of action shall accrue upon any sealed instrument for the payment of money, such right shall be presumed to have been extinguished by payment, but such presumption may be repelled by proof of payment of some part or by proof of a written acknowledgment of such right of action within that period.” (2 R. S. 301, § 48.) No proof that any payment had been made upon the mortgage was given at the trial; nor was any written acknowledgment of the right of action produced. The case, therefore, stands upon the presumption of extinguishment, which is created by the statute. That presumption is undisputed in this case, and in view of it the court is required to assume that the mortgage had been extinguished and was no longer an incumbrance upon the property. {Belmont v. O'Brien, 12 N. Y. 394.) The case just cited is precisely in point. That was a proceeding to compel a purchaser to take title to the property which he had bid off at'a judicial sale. One objection to the title, among others, was that there was an unsatisfied mortgage which was an incumbrance upon the property. The mortgage had been due for something over sixty years, and the judge at the trial, relying upon the presumption of extinguishment created by the statute cited above, held that the mortgage was no longer an incumbrance upon the property. His holding was affirmed by the Court of Appeals, which held that, under such circumstances, the burden of proving that a payment had been made, which would take it out of the statute, was upon the person setting up the mortgage as an incumbrance, and if that were not done, the presumption applied and the mortgage must be held not to be an incumbrance.

The principal objection to this title, however, is that the lor which has been sold encroaches upon the street and also upon the adjoining lot upon the west. It is claimed that the lot encroaches, one-half inch upon the street. That fact is disputed by the evidence and substantially disproved, but if it existed the fact would be of no importance. It appears from the evidence that the building has stood where it now does for over thirty years, without objection on the part of anybody, and in such a case as that the fact that it projects a small portion of an inch upon the street is no valid objection to the title. (Webster v. Kings Co. Trust Co., 145 N. Y. 275.)

The objection is also taken that the building upon the lot encroaches something more than three and one-half inches over the western boundary as defined in the mortgage. It appears upon the evidence that the property was conveyed to one Roberts in 1851, by a deed which fixed the east line at a point ninety-three feet west of Avenue D, and described the property as extending thence west, on the north side of Ninth street twenty-five feet, and completed the description by describing a lot twenty-five feet wide, front and rear, and ninety-two feet three inches deep.

Roberts continued to own the property until some time after 1880. In 1867, as it appears, lot No. 116, which adjoins the lot in dispute on the west, was also conveyed to Roberts, so that he was the owner of both lots. The house which stands upon the lot in question was built, as appears, over thirty years ago, and whether at that time it encroached upon the lot immediately west of it or not, there is no doubt that after Roberts became the owner of that lot there ceased to be any encroachment by Roberts upon anybody else’s property, but that lie was the owner of all the land upon which the house stood. Such being the condition of affairs, Roberts, in the year 1880, mortgaged the property in dispute to the Mutual Life Insurance Company, with covenants of warranty and further assurance, by a description which is precisely like the one in the contract sought to be enforced. In that description the southeast corner of the lot is fixed at a point ninety-three feet two inches west from the corner of Avenue D and ¡Ninth street, and the lot is described as being ninety-two feet and three inches deep, and twenty-four feet and eight and one-half inches wide, being now known by the street number 147 East ¡¡Ninth street. This description is followed in the subsequent conveyance which grew out of the foreclosure of this mortgage under which the plaintiffs claim, and is used in the contract in suit.

It appears from the testimony that, as a matter of fact, the house in front is ninety-three feet and two or three inches from Avenue D, and in the rear is precisely ninety-three feet from that avenue. Whichever it is, there is no doubt that it stands either within the east line of the lot as owned by Roberts or precisely on that line.

In front the width of the house is twenty-four feet and eight and three-fourths inches; but whichever may be the accurate measurement, it is still inside or upon the west boundary of the lot as conveyed to Roberts. In the rear the house is twenty-five feet wide, or twenty-five feet and one-fourth of an inch. If it is twenty-five feet wide it stands in the rear precisely on the west line of the lot 115 as conveyed to Roberts ; and if it is twenty-five feet and one-fourth of an inch, of course it encroaches just one-fourth of an inch. The condition of affairs when the property was mortgaged by Roberts, was that he owned all the land included in lots 115 and 116. He mortgaged this lot upon which stood the house, the east line of which was entirely upon his land, and the west wall of which was also entirely upon his land, but extended a few inches over the boundary as measured in the description contained in the mortgage. So we have the fact that Roberts had practically located the proper place for the wall of this house hy his own act, and upon his own land, when he had a right to so do, and had conveyed the house by a description which misstated a few inches the precise measurement of the house. This is a clear ease for the rule that natural or artificial boundaries, plainly referred to, must control measurements and distances with which they do not agree. (Meyer v. Boyd, 51 Hun, 291; Race v. Stewart, 5 App. Div. 598).

In any event Roberts did not convey more than a quarter of an inch of the land embraced in the boundaries of lot 116, even if he conveyed that much, and so small an enci’oachment as that is not of sufficient importance to warrant a denial of the relief which the plaintiff asks for.

When Roberts gave this mortgage under which the plaintiff claims, he executed with it covenants of warranty and for further assurance. And at that time, as is said, he owned both lots and was, therefore, at liberty to convey so much of either lot as he saw fit and locate the line of lot 3STo. 115 wherever he desired to ; and his action binds the grantees of that lot from him, as also does the covenant of warranty which is binding upon his subsequent grantees as well as upon himself. (Tefft v. Munson, 57 N. Y. 97.) So the location of this house which he made when he owned both lots is conclusive upon any person who subsequently became the owner of either, and a deed containing a title taken by the description which he then gave, which included the property as it actually existed and was occupied by him, conveys a good title to the house as it then stood.

The judgment of the Special Term was, therefore, right, and should be affirmed, with costs.

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

Judgment affirmed, with costs.  