
    John F. Kneller et al., Pl’ffs, v. Gerhard Lang, Def't.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 22, 1892.)
    
    1. Vendor and purchaser—Title.
    Where the record fails to show a deed from one who held title thirty-years ago, but shows a mortgage on the premises to him from plaintiff’s, predecessor in the chain of title, which contained a statement that it was-given for purchase money, and which was subsequently discharged by an assignee of the mortgage, the record title is imperfect and a purchaser will not be required to complete.
    
      2. Same—Adverse possession.
    To constitute an adverse possession which will ripen. into a title the possession must be held under a claim of title exclusive of any other right, founding the claim upon a written instrument as being a conveyance of' the premises.
    Submission to this court of a controversy upon admitted facts-under § 1279 of the Code of Civil Procedure, and the facts are as-follows: On the 30th day of January, 1891, the parties to this; action entered into a written contract of sale, the plaintiffs agreeing to convey by warranty deed to the defendant certain lands in the-town of Cheektowaga, county of Erie, containing about eighty-two acres, for the sum of $20,000, the contract being in form in all respects sufficient to bind the parties.
    The premises consisted of three adjoining parcels, and for the-purpose of identification were numbered one, two and three in-the submission papers.
    The controversy concerns parcel number two, which lies between and adjoining parcels one and three.
    More than thirty years ago one James Sheldon was the owner of the three pieces of land. The records of the county of Erie-fail to show title out of said Sheldon of parcel number two. On or about April 29, 1851, one Philip Gauchat gave a mortgage to-Mr. Sheldon, covering parcel number two, to secure the sum. of $602.
    The mortgage contained the following clause: “This mortgage-being given - to .secure the payment of the purchase price of the-above described premises.” The mortgage was properly recorded. Sheldon assigned the mortgage December 10, 1851, to Mr. John. H. Bliss, and Bliss began an action March 17,1854, against Philip Gauchat for the foreclosure of said mortgage.
    Bliss discharged the mortgage to said Philip Gauchat by an instrument bearing date December 4, 1851, and which was duly recorded February 13, 1854. The records fail to show any title in Gauchat of parcel number two, but on or about September 1L, 1854, he conveyed said piece by deed recorded October 19, 1854, Gauchat and his several grantees were in the undisturbed possession of said piece for twenty years and upwards, and the plaintiff,, John F. Kneller, is one of said grantees.
    Sheldon died intestate May, 1887, leaving him surviving several children, some of whom are minors.
    Mo action or proceeding at law has ever been brought or instituted to establish the rights of the Sheldon heirs to this property. The plaintiffs executed, acknowledged and tendered to the defendant a good and sufficient deed of conveyance of the premises.
    Defendant refused to complete his contract for the purchase of the lands, giving as the reason for such refusal that the title to the whole premises was not complete and perfect in the plaintiff, John F. Kneller; but that the omission or want of a deed from Sheldon is a cloud upon the.title, and that by virtue thereof some person or persons other than John F. Kneller have some right, title or interest therein.
    The plaintiffs claim that the title to the land is perfect and complete, and insist that Lang shall perform his contract, and they demand judgment to that effect. Mo other objection is raised to-the title.
    
      Clarence W. Wilson, for pl’ffs; James G. Smith, for def’t
   Lewis, J.

The defendant is entitled to- a good, merchantable title; one that he can sell in the market, and upon which he can, if he desires, procure a loan. of money. The record title is concededly imperfect, there being no record evidence that Philip Gauchat, under whom the plaintiffs claim title, ever had a deed of the premises.

An instrument in writing, subscribed and sealed by the person from whom the estate or interest conveyed is intended to pass, is necessary to convey the fee to land in this state. The acceptance of the mortgage containing the clause mentioned did not convey a title to the premises to Gauchat.

It was sufficient to raise a presumption that Gauchat had, at least, an equitable interest in the property, which might entitle him to a conveyance if one had not been made; but to make-it available an action would be necessary, and the Sheldon heirs would have to be parties thereto in order to obtain an adjudication which would bind them.

It is not incumbent upon the defendant to institute and prosecute such an action in order to perfect the title. It is contended by the plaintiff that Philip Gauchat and his several grantees, having been in the undisturbed possession of the premises for twenty years and more, and the plaintiff, John F. Kneller, being one of the grantees, his title to the premises is complete. Code Civ. Pro., § 369.

The admitted facts fail to state that they were in possession founding their claim upon a written instrument as being a conveyance of the premises in question. It was necessary, in order that their possession of the premises for twenty years should ripen into a title, that it should be held under a claim of title exclugive of any other right, founding this claim upon a written instrument as being a conveyance of the premises in question.

There is nothing in the papers showing that these premises were thus held. While there are authorities holding that a pur■chaser at a judicial sale may be compelled to take a title obtained by a continued possession of twenty years, the title must be accompanied with proof of such possession. The burden of procuring the evidence to establish the continuous possession for the requisite time cannot be imposed upon the purchaser. It was not contemplated by the parties entering into the contract that such a burden was to be imposed upon the defendant.

. Plaintiffs have, we think, failed to show that they have a merchantable title to the premises, and the defendant is entitled to judgment that he be relieved from fulfiling the contract.

Dwight, P. J.,.and Macomber, J., concur.  