
    James Gorman, Jr., an Infant, by Henry B. Woods, his Guardian ad Litem, Respondent, v. Mary Gorman and Others, Defendants. Ralph Lipschitz, Purchaser Appellant.
    
      Judicial sale — a purchaser not required to take a title resting upon adverse possession.
    
    A purchaser of premises sold at a partition sale will not he compelled to take a title, based as to the part of the premises in controversy solely upon the fact óf a possession for a period exceeding twenty years, where the conveyance to the ancestor of the plaintiff in the partition suit plainly excluded from the property conveyed thereby such portion of the premises, it being evident that the purchaser’s title, if subsequently questioned, could only be established by resort to paroi evidence which might be exceedingly difficult to procure.
    Appeal by Ralph Lipsohitz, one of the purchasers at the partition sale had iu the above-entitled action, from an order of the County •Court of Kings county, entered in the office of the clerk of the •county of Kings on the 20tli day of January, 1899, requiring the said purchasers to complete théir purchase and take a title founded solely on a claim of adverse possession to a portion of the premises sold.
    
      E. C. Pearson, for the appellant.
    
      Robert H. Wilson, for the plaintiff, respondent.
   Willard Bartlett, J.:

The circumstances under which the court will compel a purchaser ■of land to take a title, based solely on a claim of adverse possession ■on the part of the vendor and his grantor, have been clearly set forth in a number of recent decisions by the Court of Appeals and Appellate Division. (Heller v. Cohen, 154 N. Y. 299; Moot v. Business Men’s Investment Assn., 157 id. 201; Wilhelm v. Federgreen, 2 App. Div. 483; affd. on opinion below, 157 N. Y. 713; Ruess v. Ewen, 34 App. Div. 484.) These cases disapprove the exercise of the power in reference to a judicial sale when there is' nothing more than the mere fact of possession for over twenty years to show'that such possession has been in.hostility to the person holding the record title, and when paroi evidence to be furnished in the= future may be essential to establish the fact upon which the validity of the title depends.

In the present case, the title in question is not based upon the-occupation of the premises under any written instrument. If the deed to the plaintiff’s, ancestor in 1851 had assumed to convey the "whole of the lots, although the grantor had title to only a portion, thereof, and if the grantee arid his .successors had remained in possession thereunder ever since, the court below might have found. that the entry upon the part in. question here was exclusive of any other right than that obtained under such deed, and hence that it was hostile to every other claimant. But the conveyance plainly excluded that jiortion of the lots to which this controversy relates-The title thereto which is proffered to the purchasers rests upon the bare fact of possession for a period in excess of twenty years, and from this alone the acquiescence of the last record owner or his successors in interest, can hardly be inferred. Perhaps a case might arise in which the possession, had lasted so very long that ■ a presumption of its hostility to all other claimants and of their acquiescence might arise from that fact of itself without any additional jDroof, but we have found no instance in which a purchaser at a, judicial sale has been forced, to take a title on this ground. In the-case at bar the possession has not lasted long enough to give rise to-such a presumption, assuming that it can ever be indulged' in by reason of the mere lapse of time.

But it is also plain that the respondent’s title by adverse possession, if-questioned hereafter, could be established only by resort to-par ol evidence, and paroi evidence which it might be exceedingly difficult for the appellants to procure. In the case of a judicial, sale,where questions may reasonably be raised affecting the title, the. courts are more ready to relieve a purchaser than where the contract arises out of a private transaction between the parties; bnt even in the latter case, “if resort must be had to paroi evidence; if it depends upon questions of fact, then a purchaser should, and will, not be compelled to perform his contract.” (Holly v. Hirsch, 135 N. Y. 590.) This doctrine was applied by the Court of Appeals to a title based on a claim of adverse possession in Heller v. Cohen (supra), where Martin, J., said: '‘Under such circumstances the purchaser ought not to be compelled to take property the possession 'of which he may be obliged to defend by litigation where the-title may depend upon a question of fact.”

While we are by no means convinced that the title which is questioned here is not good, we are not satisfied that it is so free from reastinablé doubt as to warrant us in compelling its acceptance by an objecting purchaser at a judicial sale.

The order of the County Court must, therefore, be reversed.

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with, ten dollars costs.  