
    August Ruff, Plaintiff, v. Frederick Gerhardt, Defendant.
    
      Marketable title — omission from a lot, described by its number, of a portion thereof as it is described by metes and bounds—fifty years’ possession of a lot built upon is sufficient evidence of title.
    
    Upon the submission of a controversy as to whether the title to a lot in the city of New York, which the plaintiff had agreed to convey to the defendant, was marketable, it appeared that in 1848 the lot was conveyed to one Kennedy, by a lot number, including the whole of the premises, but was described by metes and bounds, which did not include a triangular strip of land six feet three inches by twenty-three feet eight inches, by twenty feet nine and three-quarter inches, located in the rear of the lot. This omission constituted the defendant’s sole objection to the title.
    It further appeared that, at the time of the conveyance, the lot, including the strip in question, was entirely inclosed; that in 1848 Kennedy erected a two- . story building upon the rear portion of the lot, including the strip in question; that Kennedy and his descendants retained possession of the premises up to 1897, when his granddaughter, who had succeeded to the title, conveyed the premises to the plaintiff.
    During the period which had elapsed since Kennedy acquired title to the lot, the strip of land in question had never been claimed by any person except Kennedy, his descendants and the plaintiff. It did not appear that there were in existence any heirs of Kennedy’s grantors, or any other person who could make a claim of title to such strip.
    
      Held, that the title to the premises was marketable, and that the defendant should be required to specifically perform his contract.
    Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure.
    
      William E. Goldman, for the plaintiff.
    
      John G. Ruff, for the defendant.
   Hatch, J.:

By the submission it appears that the plaintiff contracted to sell and convey to the defendant a certain piece of real property for and in consideration of the sum of $45,000, to be paid in manner specified in the contract of sale. At the time of the execution of the contract the defendant paid to the plaintiff the sum of $5,000 on account of the purchase price. Thereafter, and on April 1, 1902, pursuant to the contract, the plaintiff tendered a deed of the premises to the defendant, which deed purported to convey to the latter a title in fee simple of the premises. The conveyance so tendered was in all respects in compliance with the contract so far as the covenants and form of the same were concerned. The defendant refused to accept the deed at the time of the tender, claiming that the plaintiff’s title to the land conveyed was defective, and, therefore, unmarketable, and the defendant demands that judgment be rendered in his favor and against the plaintiff for the sum of $5,000 paid as aforesaid, together with interest thereon, and also a further sum of $200 expenses incurred by him in the examination of the title to said premises.

It is disclosed by the record that the premises in question were conveyed to John Kennedy by Adon Smith and Louisa, his wife, by deed dated September 18, 1848, acknowledged on that day and recorded in the office of the register of the then city and county of Hew York on the 1st day of Hay, 1858. The land so conveyed was designated by the Ho. 221 Avenue A, in the city of Hew York, and in the description the metes and bounds of the said premises were given. It appears, however, that the description by metes and bounds did not include a strip of land being in size six feet three inches by twenty-three feet eight inches by twenty feet nine and three-quarters inches in the rear of the premises, but the whole of the land so conveyed was known as Ho. 221 Avenue A, including the strip last above mentioned. At the time of the conveyance by Smith and wife to Kennedy the premises in question, including the strip in dispute, were enclosed and fenced in by a stone wall in the rear, with wooden fence built on the top of said wall, and the side fences were of boards and the front by a picket fence; that said stone wall and fence was maintained up to June, 1897; that there was erected at the time Kennedy got title, on the front of said lot, a building which was immediately after taking title, occupied by Kennedy and his family; that in 1848 Kennedy erected a two-story building of wood upon the rear portion of said lot, including the strip in dispute which building extended to the extreme rear portion of said lot.” At the time of receiving his deed, Kennedy entered into possession of the land and he and his descendants have been in the possession of the same ever since up to June 16, 1897, when Hary E. Benson, a granddaughter of the said Kennedy and successor in the title, conveyed the same to the plaintiff herein. The title to the disputed strip of land has never been claimed by any person except Kennedy and his descendants since he obtained his deed and entered into possession. The only defect which the defendant claims to exist in this title is the failure to include in the description, by metes and bounds, the triangular strip in the rear of the lot. It does not appear that there are now in existence any heirs of Smith and wife, Kennedy’s grantors, or any other person who could make claim of title to or interest in the land conveyed. So that, whether there be any person in existence who could claim title to the land as against Kennedy and his descendants who have succeeded to the title is the merest conjecture. A mere possibility that there are heirs or any person in existence who could make claim of title to the land is insufficient upon which to base an infirmity of title in the land sought to be conveyed. If reliance is placed upon such fact it devolves upon the defendant to show it by proof sufficient to raise a reasonable doubt. (Greenblatt v. Hermann, 144 N. Y. 13.) It is true that, under ordinary circumstances, where there is a defect in the record title, which can only be cured by a resort to parol evidence and the disputed title may depend upon a question of fact, specific performance will not be enforced. (Heller v. Cohen, 154 N. Y. 299.)

In the present ease, however, the plaintiff and his predecessors in the title have been in actual possession under a claim of title thereto for a period of nearly fifty-four years. They have built upon the disputed strip a substantial building, and during the whole period no person has made any claim or pretense of having title to or interest in the premises in question, nor is it shown that there is any person or persons in existence who, as against the plaintiff, could have made any claim of title. Where the period of occupancy has extended over half a century and during that time there has been peaceable enjoyment with no claim, adverse to the title, asserted against such possession, a case is presented where the contingency of the title ever being attacked is so remote as to be a matter of pure speculation and conjecture. A case of adverse possession less strong has been held by this court not to raise a question of reasonable doubt adverse to the title. (Weil v. Radley, 31 App. Div. 25; affd. on appeal, 163 N. Y. 582.) We are of opinion, therefore, that this title is not open to a reasonable doubt, and is, therefore, a marketable title. It follows that judgment should be ordered in favor of the plaintiff and against the defendant for a specific performance of the contract of sale, with costs to the plaintiff.

Patterson, O’Brien, McLaughlin and Laughlin, JJ., concurred.

Judgment ordered for plaintiff, with costs.  