
    Annie M. Eastman, Respondent, v. William Horne, Appellant.
    Second Department,
    November 18, 1910.
    Real property — vendor and purchaser—specific performance — when title marketable—encroachment upon,, adjoining lands — release — approval of title by guaranty company.
    A vendor of lands contracting to give an absolute fee of the premises free from all incumbrances, except as stated in the contract, should not be denied a decree, of specific performance merely because the supports and the foundation of supports of the roof of a shed on the premises encroached on adjoining lands for seven inches, if in addition to the deed he tendered a release from the owner of the ad j oining property giving a right to the maintenance of the encroachment so long as the building should stand.
    Although the contract of sale'provided that the vendor should give and the vendee accept a title such as a certain title guarantee and trust company would approve and insure, the vendor need not show in order to be entitled to specific performance that the title was approved by the company.
    
      It seems, however, that if the vendee had employed the company to investigate the title and it should refuse to approve or insure the same, he would be justified . in rejecting title no matter how good it might be.
    Appeal by the defendant, William Horne, from a judgment of the County Court of Kings county in favor of .the plaintiff, entered in the office of the clerk of the county of Kings on the 28th day of March, 1910, upon the decision of the court rendered after a trial before the court without a jury.
    
      George W. MeKenzie, for the appellant.
    
      Charles J. Ryan, for the respondent.
   Woodward, J.:

The plaintiff entered into a contract in writing with, the defendant on the 27th day of April, 1909, in which contract plaintiff agreed, to sell to defendant certain real estate in the county of Kings, and defendant agreed to pay therefor the sum of $4,000. Two hundred dollars was to be paid on signing the contract, $1,800 on the delivery of the deed, and the balance by the assumption of a mortgage which was at the time a lien, upon the premises. The contract provided that the “ deed shall be a full covenant warranty deed, and shall be executed and acknowledged by the vendor, at the vendor’s expense, to convey to the vendee or the vendee’s assigns, the absolute fee of the above premises, [free] from all incumbrances, except as herein stated. The vendor shall give and the vendee shall accept a title such as the Title Guarantee and Trust Company will approve and insure.” The parties met at the time and place for closing the contract, and the defendant refused to accept the deed tendered by the plaintiff, on the ground that the plaintiff had not fully performed her part of the contract, in .that she had not and did not procure the title of said property to be approved by the Title Guarantee and Trust Company, as- provided in said contract, and that defendant insisted upon a title approved by said title company, and' that the supports and foundation of said supports of the roof of the shed on the premises to be conveyed on the west side thereof rested for a space of seven inches, if not wholly, on the land adjoining said premises,” etc.

Upon the trial of the action the learned court found the facts substantially as contended for by the plaintiff, and made conclusions of law holding that the plaintiff was entitled to the relief of specific performance- of the contract, she having furnished an agreement under which the defendant was insured the use of the building as it then stood so long as it should stand. There would seem to be .no good ground for disturbing the judgment in so far as it relates to the alleged trespass of the building upon adjoining premises. There is no suggestion that the deed tendered did not convey all that the defendant purchased, with the possible exception'of the wall which encroached upon the adjacent property, and the release of the owner of the property on" which the building intruded, so long as the building stood, complied with the covenant to convey a title free from all incumbrances, except such as were provided for. There were no incumbrances, upon the premises conveyed; there was merely an encroachment upon adjoining premises of a part of a building, and when the right to have this building maintained during its existence was insured the defendant had all that he had contracted for in this regard.

There can be no doubt that if the defendant had employed the Title Guarantee and Trust Company to investigate' the title, and that corporation had refused to approve or insure the same, the defendant would be justified in refusing to. accept the title, no matter how good the same might be, for the parties had a right to fix the standard which was to determine 'the defendant’s liability under the contract. (Flanagan v. Fox, 6 Misc. Rep. 132; Allen v. McKeon, 127 App. Div. 277.) But the clause of this contract that the title is to be approved by the Title Guarantee and Trust Company imposes no condition on the plaintiff’s part, as pointed.out by Mr."Justice Gaynor. in Downs v. Lehman (123 App. Div. 11), and the plaintiff is only obliged to plead and establish the performance of conditions precedent on her part to be performed. There was no disapproval of the title by the guarantee company; no . suggestion that it would refuse its approval, and the defendant not havr ing shown any defect in the title, or ■ any reason which would justify the guarantee company in a refusal to approve, we are of opinion that a good merchantable title was all. that the contract contemplated, and that the plaintiff has performed her part of the agreement and is entitled to the judgment.

The judgment of the County Court of Kings county appealed from should be affirmed, with costs;

Jenks, Thomas, Ríen and Carr, JJ., concurred.

Judgment of the County Court of Kings county affirmed, with costs.  