
    Edward W. S. Johnston, as Executor of and Trustee under the Last Will and Testament of Joseph Hughes, Deceased, Respondent, v. Martin T. Garvey, Appellant.
    First Department,
    July 7, 1910.
    Real property — sale of infant’s real estate— facts showing necessity for sale — evidence — presumption of death —vendor and purchaser — when title marketable.
    Subdivision 2 of section 2848 of the Code of Civil Procedure, as it stood in the year •1891, governing the sale of an infant’s real estate where his interests will be promoted on account of the property being exposed to waste or dilapidation, etc., or for “ other peculiar reasons or on account of other peculiar circumstances,” is satisfied by a showing that the infants as part owners had no means to defend a suit brought to set aside a conveyance under which they claimed,
    
      that the other adult defendants were willing to compromise by conveying their interest for a .certain sum; that the infants were not in receipt of any income from the premises, which were in possession of the plaintiff, and that they could not succeed in a defense, etc.
    
      It seems, that a purchaser of lands will not he required to take a title, the validity of which depends upon a question of fact as to whether an unrecorded deed had been delivered.
    Where it appears that a former owner of lands if living would now be eighty-four years old; that he was a sailor, unmarried, and went on a voyage in 1872 from which he never returned; that his family never heard of his whereabouts except that in 1899 a person claiming to have been his shipmate stated that he had died in a foreign port in 1876, there is sufficient evidence to justify a finding that he died intestate and without issue.
    Evidence examined, and held, that a title uniting two chains of title was marketable.
    To be marketable a title need not be absolutely free from any possible suspicion of a defect.
    Appeal by the defendant, Martin T. Garvey, from a judgment of the Supreme Court in favor of the plain tiff, entered in the office ■ of the clerk of the county of Mew York on the 14th day of June, 1909, upon the decision of the court, rendered after a trial at the Mew York Special Term, directing the specific performance of a contract of purchase and sale.
    
      J. G. Engel, for the appellant.
    
      Edward W. S. Johnston, for the respondent.
   Miller, J.:

The question involved in this suit is the marketability of a title to premises which have been involved in much litigation. It is conceded that in 1874 the title was in Catherine Barrett. She made two deeds, one on the 3d of May, 1875, to William P. Powers, which was not recorded until after the. death of said Powers on the 6th of Movember, 1877, and the other to her mother-in-law, Bridget Barrett, on the 20th day of May, 1875, which recited a consideration of $7,000, and was recorded on the 25th of May, 1875. Joseph Hughes, the plaintiff’s testator, and William Hughes were the devisees of William P. Powers. William Hughes died on the 7th of December, 1883, leaving three brothers and a sister, the said Joseph Hughes, John Hughes, Henry Hughes and Susan Riordan, and a nephew, Michael Hughes, and a niece, Mary Adams. Bridget Barrett died intestate February 8, 1879, leaving a daughter, Delia Dugan, a son, Michael J. Barrett, and four grandchildren. On the 25th of J une, 1891, the heirs of. Bridget Barrett, except two infants, Lavinia Barrett and John J. Barrett, the children of the said Catherine Barrett, united in a conveyance to the said Joseph Hughes, and the interest of the said infants was conveyed to him by a special guardian appointed in proceedings to sell infants’ real estate. All of the heirs of William Hughes, except- John Hughes, have conveyed to the said Joseph Hughes, so it will be seen that the plaintiff’s testator united both claims of title. It is asserted, however, that his title under the Bridget Barrett deed is bad for a defect in the proceedings to sell the infants’, real estate, and that his title under the William Powers deed is bad for the want of a conveyance from John Hughes. ■

Prior to the conveyance by the heirs of Bridget Barrett the said Joseph Hughes had brought suit against them to set aside the deed to her on the ground that' it was fraudulent and void. The suit was tried, but the judge before whom it was tried died before deciding it, and an. agreement was made by the adult defendants in that suit to convey their interest in the property to the plaintiff for the sum of $1,000. The proceedings to sell the infants’ real estate were instituted upon the petition of their mother, the said Catherine Barrett, the alleged fraudulent grantor. She stated in that petition that she had held the title in trust for the said William P. Powers, to whom she had executed and delivered a deed, but that her father-in-law, Michael Barrett, induced her to execute and deliver to him another deed of said premises. (She was mistaken about that as the deed was to Bridget Barrett.) She set forth the facts with relation to the' said suit then pending; that all of the adult heirs were willing to compromise it by a conveyance for $1,000; that the infants had no means to defend the suit and were not in receipt of any income from the said premises which were in the possession of the plaintiff; that she was advised that they could not succeed in the defense of the action, and that it was to their advantage to carry out said agreement. The referee, appointed in the proceedings, found that the interest of the infants would have been worth $2,000 under ordinary circumstances but in view of the condition of the title it'was worth only one-sixth of $1,000, or $166.67, and the special guardian was empowered to contract for the sale .of the infants’ interests for a price not less than said sum, and that was the sum for which it was sold. The appellant claims that the proceeding was void because it did not appear that any of the reasons for the sale, specified in section 2348 of the Code' of Civil Procedure, ;as' it was in 1891, existed. Subdivision 2 of said 'section was as follows“ Where the interests of the infant * * * will be substantially promoted by such disposition, on account of the real property, or term, estate, or other interest in real property, being exposed to waste or dilapidation; or being wholly unproductive ; or for the purpose of raising funds to preserve or improve the same ; or for other peculiar reasons, or on account of other peculiar circumstances.” (See Laws of 1880, chap. 178, § 2348, as amd. by Laws of 1890, chap. 237.) I think that a case was presented showing that the infants were receiving no income from the property and that, for the “ peculiar reasons” or on account of the “peculiar circumstances” shown to exist their interests would be promoted by a sale. It was to their interest to take what the adult heirs were willing to take rather than be beaten in a law suit. No doubt, the section of the Code, as now amended (Laws of 1893, chap. 639; Laws of 1903, chap. 154;.Laws of 1907, chap. 49), specifically covers such a case ; but I think that' it was broad enough to cover it as it then existed. .No claim is made but that the proceedings - were in other respects regular. At the time of that proceeding, one of the infants was twenty and the other nineteen years of age. Both united in the petition. There is no doubt that proceedings to sell infants’ real estate are absolutely void unless the statutory requirements are complied with, but it seems to me that the statute was strictly followed, and that there , can be no doubt that the plaintiffs testator procured whatever title Bridget Barrett had.

At the time of the Catherine Barrett conveyance the premises were in the possession of William Hughes as lessee. There was testimony to the effect that thereafter William Hughes paid rent to Bridget Barrett with the consent of the said William P. Powers, and the court so found. There was no direct evidence to show that the deed from Catherine Barrett to'William P. Powers was ever delivered. It was recorded after the death of said Powers at the request of one of his devisees. But its custody meanwhile was not explained. In an action for subrogation, brought by one who had redeemed the premises from tax sales, claiming to have an interest in them under a mortgage from Joseph Hughes, one of the said heirs of William Hughes, the Court of Appeals sustained a judgment in favor of the.plaintiff’S testator, Joseph Hughes, on the theory that the conveyances by the heirs of Bridget Barrett vested the title in him, and that in view of the circumstances no presumption of delivery arose from the recording of the deed to William, P. Powers. (Koehler v. Hughes, 148 N. Y. 507.) The trial court found in this case that that deed was never delivered. A purchaser should not be required to take a title, the validity of which depends upon a question of fact whether an unrecorded deed had been delivered. However, those considerations and. the decision of the Court of Appeals above referred to, tend to reinforce the title under the Bridget Barrett deed which was recorded ahead of the William P. Powers deed.

There was evidence tending to show that the said John Hughes, if living at the time of the trial, would have been eighty-four years of age; that he was a sailor and that, in 1872, he went on a voyage to parts unknown and was never thereafter seen or heard from by any of the members of his family. At that time he was unmarried. In ■1899 a petition was presented to the Surrogate’s Court of Hew York county by the said Henry Hughes, asking for the appointment of an administrator of the said John Hughes, in which he set forth that the said John Hughes was born about the year 1830; that his occupation was that of a sailor; that at all times prior to 1872 he made his home and residence at 26 Hew Bowery, in the city of Hew York, to which place he was accustomed to return from his ’ voyages; that in the year 1872 he went on a voyage and had never returned ; that in February, 1889, a man, to the petitioner unknown, came to his place of business, informed him that he had been a shipmate of one John Hughes in the year 1886, whom he correctly described, and stated facts which he claimed the said John Hughes had communicated to him, relative to the latter’s family, which were true, and that the said John Hughes had died in the year 1876 at a port in the Republic of Peru. The petition further stated that no word of communication whatever had been received from the said John Hughes after his departure in 1872. Upon that petition a citation was issued, directed to all persons interested in the estate of John Hughes, deceased, his creditors, next of kin or otherwise ; and upon the return of the citation, letters of administration were issued to the said Henry Hughes, and he finally accounted and was discharged. That evidence was sufficient to justify a finding of death intestate and without .issue, (Barson v. Mulligan, 191 N. Y. 306.)

Moreover, after this lapse of time it will be impossible to set aside the deed to Bridget Barrett. The admissions of Catherine Barrett made after her conveyance cannot be proven. To be marketable : a title need not be absolutely free from any possible suspicion of a defect. (Hagan v. Drucker, 90 App. Div. 28.) Here the plaintiffs testator united the two chains of title so far as it was possible to do so. The older title of record is undoubtedly good. In all human probability he had a conveyance from all who could claim under the younger title of record ; but if perchance John Hughes should be alive or should have died, leaving issue, there is not even a remote possibility that the older title of ' record can now. be successfully attacked.

The judgment directs the payment of interest without taking any account of the rents and profits. One will doubtless offset the. other, and the - judgment may be modified by striking out the provision for interest, and as thus modified affirmed, without costs.

Inge ah am, P. J., McLaughlin,. Claeke and Scott, JJ., concurred.

Judgment modified as directed in opinion, and as modified affirmed, without costs. Settle order on notice.  