
    Slocum v. Doniol.
    
      (Supreme Court, General Term, Second Department.
    
    June 25, 1888.)
    Argued before Pratt and Dykman, JJ.
    
      William B. Slocum, pro se.. A. cB A. X. Fallon, for defendant.
   Pratt, J.

The testimony shows that Doniol contracted with Hiram Slocum, plaintiff’s ancestor, for the purchase of the land now in suit and other lands, and had an option to take it at any time within five years. He exercised that option, gave notice that he had sold the land to another party, and called for his deed. The vendor assented, and helped measure the land. The surveyor, who was in the habit of acting for both parties, was intrusted with .the duty of preparing the deed and procuring its execution. Doniol conveyed the land to his vendee, who entered into possession, and so continued, with full knowledge of the original owner. Several years elapsed, and no question •of the title was made. After the death of the original owner of the land, and •of the surveyor, it now appears that no conveyance from Hiram Slocum appears on record, and this action is brought upon the theory that none was ever •executed. We think the facts above, and others which appear in testimony, warrant the conclusion that a conveyance was made and delivered to the surveyor, who assumed the duty of procuring it. We cannot otherwise account for the fact that for many years free possession was allowed to Douiol’s grantees.

It follows that the judgment should be affirmed, with costs.

Dykman, J., concurs.  