
    Aaron Coleman, Respondent, v. Anna Bruch, Appellant.
    First Department,
    June 11, 1909.
    Evidence — when ■ affidavits admissible as ancient documents — real property —deed — misnomer of grantee — when title marketable.
    Affidavits stating that the name of a grantee in a recorded deed was misspelled by a clerical error, which, together with the abstract and muniments of title, have 'been in the possession of the person who drew the conveyance and his descendants for over forty years, are admissible in evidence as ancient documents.
    Where such affidavits establish that, although the grantee was named as Thomas E. June, his real name was Thomas E. Jayne, and the deed was .again recorded with a memorandum signed by the subscribing witness, who also took the original acknowledgment stating that the word “ Jayne ” had been written over an erasure before execution, one holding by mesne conveyances from Thomas E. Jayne has a marketable title, and his vendee will be compelled specifically to perform, although there is no record of a deed from Thomas E. June.
    Appeal by the defendant, Anna Bvnch, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 11th day of January, 1909, upon the-decision of the court rendered after a trial at the New York Special Term.
    
      Frederic Cyrus Leubuscher, for the appellant.
    
      Julius B. Baer, for the respondent.
   McLaughlin, J. :

The plaintiff is the assignee of one Gross, to whom the defendant contracted to convey certain premises in-tbe city of Rew York known as Ho. -1-6 West One Hundred and Thirty-third street.. At the time for closing the contract the plaintiff refused to complete on tbe ground that the title was defective, and this action was brought to impress a lien upon the premises in the sum of $500, the ¡amount paid on the signing of the contract, and to* recover $275, expenses incurred in examining the title. The plaintiff had judgment for the relief sought and the defendant appeals, claiming that she was. able to convey a good title.

The plaintiff’s refusal to take the title was based upon the fact that on September 1, 1855, one George T. Maxwell and wife com veyed the premises to one Thomas E. June, by deed recorded two days later, and there is no record of any conveyance of the property by June. • The defendant sought to avoid this defect in. the record title by showing that on the 10th of April, 1856, this deed — with the exception that the grantee named was Thomas E. Jayne instead of Thomas E. June — was again recorded with a memorandum on the deed, signed by the subscribing witness, who was also the officer who took the acknowledgment, stating that the word “Jayne” had been written over an erasure before execution. From Thomas E. Jayne there is a perfect chain of title to the defendant.

The defendant also produced three affidavits, verified either on the 10th or 11th of February, 1865, all to the effect that Maxwell had intended to convey to Jayne, but that the latter’s name had, through a clerical error, been misspelled June, which it was attempted to correct by erasing the word June ” and substituting “ Jayne,” and then having the deed again recorded as stated above. These affidavits were by one Roe, who was the attorney for Maxwell, the grantor in the transaction, by one Hammond, the agent who nego- . tiated the sale, and by Jayne. They were produced by one Need-ham, who testified that he had received them from his father, who died about 1890, and who had acted as attorney for one James R. Floyd. Floyd took title, to the property by deed dated February 21, 1865, and these affidavits were at the end of -an abstract of Floyd’s title, in the handwriting of Needham, the witness’ father. The witness was an attorney and testified that .he first saw the abstract in his father’s office in 1884 or 1885.

It is strenuously urged that these affidavits were not properly ■ proven and not admissible in.evidence, but I am of the opinion that they were admissible as ancient documents. The general rule is that an- ancient record or document which comes from the custody of a person which the court deems proper and is itself free from any indication of fraud or invalidity, proves itself. (Layton v. Kraft, 111 App. Div. 842; Matter of Webster, 106 id. 360 ; affd., 186 N. Y. 549; Dodge v. Gallatin, 130 id: 117, and cases there cited.) These affidavits purported to have been made upwards of forty years ago and a few days before Floyd took title to the premises. They were found where they might naturally have been expected to be, in the possession of Floyd’s attorney with the abstract and muniment of title. Under’ these circumstances I think they were admissible in evidence without proof other than that which was made.

The plaintiff’s attorney admitted that defendant had given him copies of these affidavits and he testified: “I did not make any point that the original affidavits were not in my possession. * * * I make no point of the fact that the originals were not'produced.” That being so, I do not think that the plaintiff -was justified, in refusing to take title, especially in view of the fact that it was shown that after the conveyance by Maxwell no adverse claim had ever been made, and it was stipulated that the building and fence on the premises'had been there continuously since the year 1882.

The case in many respects is quite similar to that of Hellreigel V. Manning (97 N. Y. 56) where the records showed a deed to Electa Wilds in 1861 and a conveyance of the same property in 1867 by Electa Wilder under which plaintiff had acquired title. The action was brought to compel the defendant to specifically perform a contract for the purchase of the land, and Eabl, J., writing for the court, said1: £f It is probably true that, looking at the records alone, there was such a defect in plaintiff’s title that he could riot compel the defendant to accept it. The two names are so dissimilar that they do not present a case of idem soncms. But yet the inference from the-records is quite strong that the two. names stand for the same person. * * * If the two names do not stand for the same person, we have the case of an entire stranger to the title with a name quite similar conveying the- title and passing it on through the chain to the. plaintiff. But if we add to all this what must, in the absence of any proof by the defendant to the contrary, be presumed, that the title was held and the land occupied without dispute under the deed from Electa Wilder from April* 1867, to the trial of this action in 1881, the inference that the two names stand for the same person becomes almost conclusive.” The judgment for specific performance was consequently affirmed.

It is true that, in the case cited there was more direct evidence that Wilds and Wilder were the same person, but in other respects the present case is even more favorable to the defendant. The ■difference between the names “June” and “Jayne” is such that I do not think the doctrine of idem sonans can be applied. But here, after the deed to June, the same deed, with the date of the acknowledgment unchanged but with the word J une ” erased and the word “ Jayne ” written in its place, was again recorded. The same day a conveyance of the property by Jayne and his wife was recorded and from that time to the present, over fifty years, so far as appears, the title has not been questioned. Upon such facts there can be no reasonable doubt that Jayne and J une were the same person and that the title was a marketable one (Freedman v. Oppenheim, 187 N. Y. 101) irrespective of the affidavits. When they are considered the case, it seems to me, is beyond question.

The learned justice at Special Term was of the opinion that the defendant had established a good title to the property, hut it was not marketable on the day fixed for closing, and for that reason gave judgment for the plaintiff because neither party asked for specific performance. I am of the opinion that the evidence showed that the defendant did have a marketable title on the day set for closing and the. judgment must, therefore, be reversed, with costs, and since the plaintiff has nothing to gain by a new trial, judgment for the defendant should be granted dismissing the complaint.

Ingraham, Clarke, Houghton and Scott, JJ., concurred.

Judgment reversed and complaint dismissed, with costs.  