
    Mary O. Simis, Resp’t, v. Daniel S. McElroy, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 12, 1891.)
    
    1. Vendor and vendee—Marketable title.
    K. died in 1777, devising certain real estate to his granddaughter 0. T., but in case of her dying without issue to testator’s surviving children or their respresentatives. 0. T., in her life joined in a partition deed to J. and S., and afterwards died in 1824 unmarried and without issue. The deed was made subject to 0. T.’s death without issue as were the mesne conveyances to plaintiff. Held, that she had not a marketable title which she could compel defendant to accept.
    '2. Same—Adverse possession.
    ,_Mere evidence that possession was taken of a portion of the lot in 1856, with no proof of a continuous possession from that time forward, and no proof of any possession of the premises, except such as occupied by the house purporting to have been erected and no proof of the position of the fences inclosing the lot, failed to make out adverse possession.
    Appeal from judgment entered upon decision of the court after trial in the circuit court or supreme court it is not certain which.
    
      Daniel Daly, for app’lt; S. S. Harris, for resp’t.
   Van Brunt, P. J.

—This action was brought to recover damages for failure to comply with the contract by which the defendant agreed to purchase certain premises alleged to belong to the plaintiff. The defense was that a marketable title was not tendered.

The title of the findings in the case would seem to indicate that the action was tried in the supreme court. The learned justice, however, trying the case states that it was tried at circuit without a jury; and the court thereupon caused an equitable judgment to be entered, which seems to have been entered by the clerk as a postea. This practice is entirely irregular. The only judgment which' can be rendered at circuit in an action to recover damages is a money judgment, the circuit court having no equitable powers, except so far as they may be necessary for the trial of equitable defenses.

A very brief statement of the history of this title seems to show that no proper title was tendered by the defendant. The following facts appeared upon the trial:

1. Jacobus Kip died in 1777, leaving a will dated 30th August, 1770, proved in mayor’s court, 25th July, 1805, recorded 31st October, 1817, devising his residuary estate, including lot 29 shown on diagram attached, to his sons Samuel and John and his daughters Catherine, Mary and Margaret.

By a codicil dated January 13, 1772, he recited the death of his daughter Catharine, and devised the share of his daughter Catherine to his grand-daughter Catherine Teller, in fee, but in case he should die without lawful issue of her body then living, then he devised the part of his real estate devised to her to and among his surviving children or their lawful representatives in fee, share and share alike.

Samuel Kip and John Kip survived the testator. John Kip died 6th October, 1777, unmarried and without issue. Mary Kip died 6th of October, 1780, unmarried and without issue. Samuel Kip died in February, 1804, leaving eight children, viz.: James S. Kip, Elizabeth Kip, Elbert Kip, Samuel Kip, Cornelius Kip, Catherine Kip, Mary Kip and Henry Kip.

2. A partition of said farm was made 9th November, 1804, by deed which was recorded Liber 295, page 497, on 17th April, 1833, all the children and heirs-at-law of said Samuel Kip being parties of the first part, Samuel Jones and Nicholas W. Stuyvesant being the parties of the second part, and Margaret Kip, daughter, and Catherine Teller, grand-daughter of said Jacobus Kip, being parties of the third part This deed recited that Margaret Kip and Catherine Teller, by deed dated 28th March, 1804, conveyed their entire interest in said farm to Samuel Jones and Nicholas W. Stuyvesant, as joint tenants, including all their estate, right, title, possession, claim and demand, beneficial interest and possibility of right or interest whatsoever and howsoever, as well in law and in equity of them, the said Margaret Kip and Catherine Teller.

By this deed tract No. 1, being thirty-three acres and upwards and equal to two-fifths of the farm, was conveyed to the children of Samuel Kip, deceased, in fee. Tract No. 2, containing thirty-three acres and upwards, equal to two-fifths, was conveyed to Jones and Stuyvesant, as joint tenants, being for the share conveyed to them by Margaret Kip,. and parcels 3 and 4, equal to one-fifth, was conveyed to said Jones and Stuyvesant, as joint tenants, subject to be determined by the death of said Catherine Teller without issue of her body then living, if she should happen to die without lawful issue of her body then living.

3. That Messrs. Jones and Stuyvesant executed and delivered to Catherine Kip, one of the children of said Samuel Kip, a deed dated 20th September, 1806, which was recorded 6th March, 1832, in New York register’s office, in Liber 282 of Conveyances, page 203. This deed recites that Jacobus Kip, being seized of the Kip’s bay farm, by his will, gave and devised unto his daughter, Catherine Teller, as a tenant in common, a part thereof, the death of Catherine Teller in her father’s lifetime, leaving her daugher- Catherine surviving. That by a codicil said Jacobus Kip devised the part of his estate devised by his will to his daughter Catherine to his grand-daughter, Catherine Teller, in fee, but in case his said grand-daughter should die without lawful issue of her body then living, then and in such case he devised the • share devised to her to and among his surviving children or their lawful representatives in fee as tenants in common. That Catherine- Teller, the grand-daughter, on 26th March, 1804, granted and conveyed unto Jones and Stuyvesant, their heirs and assigns, all and singular her share in said farm, being one equal undivided fifth part thereof, to hold as joint tenants and not as tenants in common. That partition had been made among the owners thereof, and a part of said premises consisting of two lots at the southerly end of the lane, one of them adjoining the highway or land open thereto and sometimes called lot No. 3 of the one-fifth and the other lot No. 4, the said two parcels being one equal fifth part of the premises, was alloted and set apart to Jones and Stuyvesant as their part and share of said premises under and by virtue of said grant from said Catherine Teller to them, to hold as joint tenants, subject, however, to be determined by the death of the said Catherine Teller without lawful issue of her body then living, if she should happen to die without lawful issue of her body then living, and purported to convey with other property lot No. 29.

Catherine Teller, the granddaughter of Jacobus Kip, died in 1824, unmarried and without issue. Catherine Kip married one John X.,Yan Tuyl in the year 1807, and in March, 1835, conveyed certain premises which it is claimed includes the premises-in question, and by divers mesne conveyances the same were conveyed to one Coman in 1856, at the time when the property was first built • upon, and when there is the first evidence of any possession. Other evidence was introduced showing the history of the title, but there does not seem to have been evidence of any continuous possession, and it was shown that the premises were not enclosed or occupied other than by the building which stood thereon.

The court below held, that “ the objection that the title of Catherine Teller was liable to be determined by her dying without issue, is obviated by the fact that all her title was conveyed to Jones and Stuyvesant, who made partition of this one-fifth among the heirs of Samuel Kip. There being no other persons interested, the grant of the property under the partition made of the 32 lots, vested the title in the heirs of Samuel Kip; the lot in question having been conveyed by Jones and Stuyvesant to Catherine Kip, through whom, by successive conveyances, it has come down to plaintiff.”

It seems to us that the learned court in this statement of the objection to the title arising from the death-of Catherine Teller without issue has overlooked the fact that by the partition deed between the parties wrho were then interested in the estate there was no attempt to convey to the grantees of Catherine Teller more than an estate during her life in case she died without issue, and that then the estate descended under the will to the heirs of the testator, of which the children of Samuel Kip, the son of the testator, were certainly a portion. And there is no evidence of any conveyance or devise of any of them, except the deed from one, viz., Catherine Kip.

It is clear, under these circumstances, that the interest devised under the will of Jacobus Kip to Catherine Teller during her life in case she died without issue has not been conveyed oy the persons to whom it descended. Therefore, as far as the record title is concerned, there was a serious defect.

The claim that a title has been established by adverse possession seems to be absolutely without foundation.

It is true there is evidence that possession was taken of a portion of the lot in 1856. But there is no proof of a continuous possession from that time forward. Nor is there any proof of any possession of the premises except such as is occupied by the house purporting to have been erected on the lot, there being no proof of the position of the fences enclosing the lot; and since the possession established in 1856 there are lapses in the testimony since from 1875 to 1880 no proof of possession was offered, but mere proof of ownership.

In any event, without some proof showing during this period of thirty years where the outstanding interest in the heirs of Kip was vested, it would certainly be dangerous for any person to take the title, as the statute of limitations might not have run; and a party in taking a title to real estate must necessarily be reasonably assured against the buying of a lawsuit.

Upon the whole case we are of opinion that a good title was not offered, and that, therefore, the plaintiff should not recover.

The judgment should be reversed and a new trial ordered, with costs to appellant to abide event.

Daniels, J., concurs.  