
    Joseph Stehlin, Pl’ff, v. Ellen M. Golding, Def’t.
    
      (Supreme Court, Special Term, Kings County,
    
    
      Filed April 24, 1888.)
    
    Title — When does not become objectionable—Wife of conduit of title—Defective acknowledgment.
    The title to land does not become objectionable or unmarketable because the wife of an intermediary or conduit of transfer did not join in the deed of her husband. Where the marketability of a title depends upon the proof of facts which are satisfactorily established for the first time upon the trial, specific performance by the vendee will be decreed.' The acknowledgment of a deed in which the words “ known (or proven) to me are omitted is defective, and such deed is not entitled to record and is not. effectual as constructive notice.
    This was an action by vendee against vendor for rescission of a contract of sale of real estate and for damages, on the ground of alleged defective title. The premises were, originally owned by one Nelson Tomlinson, who by quitclaim deed, dated September 18, 1876, acknowledged September 19, 1876, and recorded September 19, 1876, for an expressed consideration of five dollars, “ and other good and sufficient considerations ” him moving, conveyed the premises to one John Barrie, and the said John Barrie, by quitclaim deed, dated September 18, 1876, acknowledged September 19, 1876, and recorded September 20, 1876, for a like expressed consideration, conveyed the same premises, by the same description to one Ellen Tomlinson. Both of these grantors were married, but their wives did not join-in either of these deeds.
    Upon the trial it appeared that Barrie -was the son-in-law of said Nelson and Ellen Tomlinson, who were man and wife. The originals of these two deeds were not produced,, and the deed from Nelson Tomlinson to Barrie, as recorded,, was defectively acknowledged, in that the officer taking-the acknowledgment certifies that “before me personally came Nelson Tomlinson, , to be the individual described in and who executed the within conveyance, who acknowledged that he executed the same.”
    The defendant’s counsel objected to the introduction of the record of this deed in evidence, on account of the defect, in the acknowledgment, and the court sustained the objection, but permitted plaintiff to prove that he had received actual notice of the existence of such deed. The-plaintiff vendee proved by Mrs. Barrie’s sister that Barrie and his wife were married prior to September, 1876, and that he and his wife and the said Ellen Tomlinson were all still living, and that Barrie and his wife had been asked to. execute a release of Mrs. Barrie’s interest in the premises, and had refused.
    The subscribing witness to the two deeds, who was a-lawyer, was called by the defendant, and swore that the two deeds in question were drawn and recorded by him at the request and by direction, and upon the employment of Nelson Tomlinson, and to the best of his recollection for the purpose of vesting the title of the premises in the said Ellen, wife of the said Nelson Tomlinson; and that both deeds were paid for by said Nelson Tomlinson, and as the witness remembered upon being directed by said Nelson to have the title transferred from himself, said Nelson, to his wife, said Ellen, the witness stated that it would be necessary to make the transfer through a third person, and thereupon said Nelson directed said transfer to be made through his son-in-law Barrie, and that the witness did not see any money or other consideration pass between any of the parties, and that he could not remember how it was that the second deed was recorded the day after the first one. This evidence was not controverted.
    The plaintiff’s counsel maintained that the title was defective, and that the evidence now offered, which would seem to show that Barrie had no estate of ids own in the premises, was not res adjudícala as to him (said Barrie) or his wife, as they were not before the court or parties to the suit, and, therefore, were not estopped, and that, non constat, Mrs. Barrie might in the future claim dower after her husband’s death, and that the plaintiff should not be compelled to accept a title which was based partly upon facts requiring evidence aliunde. The defendant’s counsel contended, first, that in the absence of all evidence to the contrary, the presumption arising from these two deeds alone, based upon their respective dates, record, consideration, etc., was that Barrie was a mere conduit, and that the sole object was to transfer the title from the husband, Tomlinson, to his wife; but, secondly, that the evidence of the witness who drew and recorded the deeds that the facts were as claimed, established the fact fully and clearly, and that the title was, therefore, shown to be unimpeachable, and that as Barrie was a mere conduit of title, his only estate in the premises was as trustee, upon an implied trust to immediately reconvey to his mother-in-law, said Ellen Tomlinson.
    The court gave judgment for the defendant, rendering the following decision:
    
      C. Ferguson, for pl’ff; Joseph C. Levi, for def’t.
   Otjllen, J.

—That the title of the defendant is and has been good I think now appears beyond dispute, for it is unquestioned that John Barrie was a mere conduit through whom the title was transferred from Tomlinson to his wife Ellen.

The dower of the wife of John Barrie, therefore, never attached to the property. The title offered also is, in my opinion, marketable; but I have had much doubt whether the title was marketable originally. The deed from Tomlinson to Barrie, as appears by the record, was defective in the acknowledgment. Hence, the deed was not entitled to be recorded, and the actual record was not notice to subsequent purchasers, but, pending the carrying out of the contract of sale, the plaintiff received actual notice of the existence of the deed, while the proof of the circumstances attending the conveyance and its object was not produced till the trial of this action. After such actual notice the plaintiff was probably justified in refusing to take title until the defect was cured, but, as the title is now shown to be good, I think the contract should be carried out.

The defendant should, at her option, have judgment for its specific performance, but, if she declines to carry out the contract, I think she should repay the deposit paid by plaintiff.

Judgment accordingly, without costs to either party.  