
    Isaac V. Brokaw, Appellant, v. Ellen Duffy, Respondent.
    
      Unmarketable title — a title derived from one whose, sanity was in serious doubt — competency of testimony as to his lunacy taken amd filed in the lunacy proceeding — cancellation of a notice of lis pendens.
    A party to a contract made in November, 1891, for the purchase of land conveyed ' to the vendor by a deed from her brother executed in 1884, is justified in rejecting the title as unmarketable when it appears that in 1885 the niece of such brother filed a petition alleging him to be insane and to have been so during the ten preceding years, and that he executed such deed when thus insane and not aware of what he was doing, and when it also appears that in lunacy pro-', ceedings instituted upon such petition a sheriffs jury has found, upon evidence tending to show that at the time of, and subsequent to, the execution of the deed the brother was insane, that the brother was a lunatic and of unsound, mind', and had been “in the same state of lunacy since October 36th, 1891,” and where, although this finding of the jury was set aside (with leave to apply for a new commission) solely, however, upon the ground of an alleged, error1 in the-, commissioner’s charge to the jury, and an application subsequently made for a. new commission was denied on the ground that the grantor’s domicile ivas in Ireland, and the .attorneys for the niece, claiming that they have undoubted, evidence of the grantor’s insanity, state that they will, upon his death, at once-.' commence proceedings on that ground in behalf of his heirs to set aside any deed executed by Sis grantee, the present vendor.
    Upon the question as to the. probable lunacy of the grantor, the testimony taken, in the lunacy proceeding, filed with the inquisition and made a part of the' records of the court, is properly received in evidence.
    The fact that a notice of Us pendens, filed in the lunacy proceeding, was cánceled. and set aside, is entirely immaterial. »
    Appeal by the plaintiff, Isaac Y. Brokaw, from a judgment of the Supreme Court in favor of the defendant, entered in the • office* of the clerk of the county of Hew York upon the decision of- the-court rendered after a trial before the court without a jury at. the. Hew York Trial Term dismissing the complaint upon the* merits.
    
      M. S. Thompson, for the appellant.
    
      Michael J. Scanlan, for the respondent.
   Barrett, J.:

This action was brought to recover the amount paid by the plaintiff to the defendant under a contract for the purchase of a lot'off land- in the city of Hew York, together with the expenses incurred.' in the examination of the title. The plaintiff rejected the title upon the ground that it was not marketable. The particular point of .objection was that certain proceedings in lunacy against the defendant’s grantor, Bernard McKenna, constituted a cloud upon the title. The defendant is a sister of this Bernard McKenna. Upon the-22d day of May, 1884, he executed a deed to her of several parcels, of land in this city, including the lot in question. The consideration was one dollar. Both grantor and grantee were then residents. of Ireland. The deed itself was quite informal, and seems to have been prepared by an illiterate person. The present contract was made in ¡November, 1891, and the title was rejected in March, 1892. The plaintiff employed Messrs. Thompson & Koss to examine the title, and these gentlemen discovered that in July, 1885, a petition was filed in the Supreme Court by Mary J. McShane, a niece of Bernard McKenna, alleging his insanity, and the continuous existence thereof during the preceding ten years ; also alleging that the deed to Ellen Duffy was obtained from Bernard while he was thus “ insane and did not know what he was doing.” Upon this petition an open commission was issued for the taking of testimony in Ireland, and a number of witnesses were' there examined. The testimony of these witnesses tended to support the allegations of the petition, and to show that Bernard McKenna was insane before, at the time of, and subsequent to the execution of the deed. This testimony was filed with the inquisition, whereby a sheriff’s jury found that Bernard McKenna was a lunatic and of unsound mind, and had been “ in the same state of lunacy since October 26th, 1891.” The court, however, set aside this finding (with leave to apply for a new commission) solely upon the ground of an error in the commissioner’s charge to the jury. There was no finding or intimation even that the verdict was unsupported by the evidence. On the contrary, the learned judge observed that “ the' testimony presented ” by the witnesses who had been examined upon the commission “ certainly is such as to make out a case, if it were to be considered alone.” He then referred to the expert testimony presented upon the other side tending to show McKenna’s sanity ; and he held that this expert testimony had been improperly discredited by the learned commissioner in his charge to the jury. Under the leave reserved, an application was subsequently made for a new commission, but the application was denied upon the ground that McKenna’s domicile was in Ireland, and that, although he had property here, justice required that the question of his sanity should be tried where he was so domiciled. All these facts appeared of record and were considered by Messrs. Thompson & Koss. These gentlemen thereupon made further inquiries, and learned from Mary J. McSliane’s attorneys, Messrs. Jeroloman & Arrowsmith, that McKenna was still living; that he was about ninety years of age; that they claimed, to have undoubted evidence of his insanity, and that upon his death they would at once commence proceedings on behalf of his heirs at law to set aside the deed to Ellen Duffy on the ground that, at the time of its execution, he was a lunatic. Mr. Arrowsmith thereupon notified Mr. Koss that if the latter’s client took the title he would do so at his own risk.

It is quite clear that, upon this state of facts, the plaintiff was. entirely justified in refusing to complete his purchase. He was not bound to establish McKenna’s insanity as an independent fact, with all the probative force required upon a direct issue. It sufficed that a reasonable doubt was thrown upon the validity of McKenna’s deed to Ellen Duffy. The rule was clearly summed up in Vought v. Williams (120 N. Y. 257) as follows: “ There is reasonable doubt when there is- uncertainty as to some fact appearing in the course of its deduction, and the doubt must be such as affects the value of the land or will interfere with its sale.” There was, to say the least, uncertainty here as to McKenna’s sanity when he executed the deed to this defendant. A jury, upon competent evidence, had actually found that he was then insane. Was the plaintiff to take the. title with this verdict and the' evidence, upon which' it was founded staring him in the face? ' And, further, with the assurance of the petitioner’s counsel that he meant to follow it up promptly and vigorously with an independent action when the occasion permitted ? The learned counsel' for the appellant is not far out of the •way when he suggests that, had he, under such circumstances, accepted this' title, his own mental condition might well have been questioned. It would certainly have been the purchase of an-impending law suit, with every indication of defeat therein for his client, the purchaser. It .was well said in the case above cited that “a purchaser is not tó be compelled to take property the possession of which he may be compelled to defend by litigation. He should have a title that will enable him to hold^ his' land in peace, and, if he wishes to sell it, be reasonably sure that no flaw or doubt will arise to disturb its market value.” This rule is supported .by Shriver v. Shriver (86 N. Y. 515) and Fleming v. Burnham (100 id. 1); and it was reaffirmed in McPherson v. Schade (149 id. 16) and Heller v. Cohen (154 id. 306). The plaintiff here .was not bound- to take the hazard of a contest with the heirs at law of Bernard McKenna. (Jordan v. Poillon, 77 N. Y. 518.) The record title being upon its face good, he was, to. justify its rejection, bound to give evidence rendering it probable that these heirs at law could thereafter successfully, attack the deed under which he was to take. (Greenblatt v. Hermann, 144 N. Y. 13.) Andrews, Ch. J., observed in the latter case: “ It has been often said that the purchaser is entitled to a marketable title. The title tendered need not in fact be bad in order to relieve him from his purchase, but it must either be defective in fact, or so.clouded by apparent defects, either in the record or by proof outside, of the record, that prudent men, knowing the facts, would hesitate to take it.” The case at bar is directly within this principle. The title here was clouded by the apparent defect” of McKenna’s probable lunacy, shown, as that probability was, by proof alitmde the record sufficient to induce a prudent man to hesitate to accept it. ■

A point is made by the respondent with regard to the notice of lis pendens filed in the lunacy proceedings. He contends that by the judicial cancellation of this notice the defendant’s title was perfected, and the plaintiff was then bound to take. This is a misconception. The lis pendens here had nothing to do with the defect. It neither originated nor continued the cloud. It may even be assumed that a Us pendens filed in a lunacy proceeding is without authority of law. It is the fact of- McKenna’s probable lunacy, of which the plaintiff had actual notice, that renders the title doubtful and unmarketable.

As the purchaser here had actual notice of the facts affecting the title, the cancellation of the lis pendens was entirely immaterial.

The testimony taken in the lunacy proceedings, filed with the inquisition and made part of the records of the court, was properly admitted. Upon the question of probability, which was, as we have seen, the crucial question, it was proper to resort to the evidence thus taken. The inquisition was clearly admissible ; and so we think ■was the evidence upon which it was founded, if for no other purpose at least to show that the verdict was based upon adequate testimony and was not lightly or capriciously reached. When the entire record, including this evidence, was before the trial court it could advisedly decide whether McKenna’s lunacy was a serious and imminent probability or but a slight and remote possibility. If the latter, the title was marketable, and could not be rejected (Ferry v. Sampson, 112 N. Y. 415). If the former, it was unmarketable, and could properly be rejected.

. We think, therefore, that the learned trial court erred in dismissing the plaintiff’s complaint upon the merits, and that its judgment should have been the other way. A point is also made as to the rejection of certain evidence. We think the' ruling on this head of doubtful accuracy, but in the view we -have taken of the merits upon the evidence which was admitted, it will not be necessary to pass definitely upon this ruling.

' The judgment appealed from should be reversed and a new trial Ordered, with costs to the appellant to abide the event.

Van Brunt, P. J., Rumsey, Patterson and O’Brien,. JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.  