
    George A. McDonald, Plaintiff, v. Lewis Z. Bach et al., Defendants.
    (Supreme Court, New York Special Term,
    October, 1899.)
    1. Vendor and purchaser — Encroachment o£ three-quarters of an inch not material.
    An encroachment of a wall to the extent of three-quarters of an inch does not justify a purchaser in refusing to take title to the premises, and especially where the year, limiting the time for attacking the encroachment (Code Civ. Pro., § 1499, as amended by Laws of 1898, chap. 517) has expired.
    8. Same — Agent, without title, contracting to convey in his own name.
    Where an agent, although having no title to premises, contracts to •convey them in his own name and, upon closing, presents a deed from his principal, the true owner, there is a sufficient ratification of the acts of the agent and the court will compel a contracting purchaser, who has in the meantime incurred no responsibilities or expenditures in reliance upon the presumed ownership of the agent, to accept the title.
    
      Action" to compel the specific performance of a contract for the exchange of lands.
    William H. Stockwell, for plaintiff.
    Ennever & Trautmann (Thomas 0. Ennever, of counsel), for . ■defendants.
   Bussell, J.

The encroachments are not sufficient to justify resistance to specific performance of the contract for the exchange of lands. The average overlapping of the wall does not exceed three-quarters of an inch. Although adverse possession has not been acquired, the existence of the wall for many years, without disturbance or adverse claim, may be taken into consideration to determine the probability of any impairment of possession, and the recent statute indicates the policy of the law for the quieting of rights to the use of party walls after the 1st day of September, 1899, which time has now elapsed. Code Civ. Pro., § 1499, as amended by Laws of 1898, chap. 517.

The tendency of the law is to reject an objection for encroachments unless it appears that real diminution of marketable value occurs on account of the substantial character of the encroachments. Merges v. Ringler, 34 App. Div. 415; affd., 158 N. Y. 701.

The more serious objection comes from the entire want of title of the plaintiff to the premises which were to be conveyed by him to the defendants. He contracted to convey by full covenant deed when he was not the owner, the title being in his mother. At the time fixed for closing the title, however, he presents a full ■covenant deed from the mother, executed in due form, reciting a consideration of one dollar and exchange of property. The evidence discloses that he was agent of his mother, and apparently had full oral authority to bargain with reference to her estate. The ■execution of the deed by her to the defendants in pursuance of the contract of the plaintiff, and delivery to him for the purpose ■of carrying out the contract, is a full ratification of that contract, .and from that ratification it may be.inferred that he had such authority originally as to justify dealing with him in the execution of the contract. Hndoubtedly, the defendants had a right to assume from the plaintiff’s covenant to convey that he had good title at the time of the contract. Burwell v. Jackson, 9 N. Y. 535. And a subsequent parting with the title by plaintiff would have justified the defendants in refusing to incur any expense on account of the contract. James v. Burchell, 82 N. Y. 108.

But where parties are not asked to incur any liabilities or make any expenditures before the closing of title, and on that occasion a perfect title is tendered, their rights are not invaded, and the execution complies in all respects with the promise or covenant. This theory has been carried so far in cases of sealed contract as to justify not only the enforcement of "contracts so made, but to allow that enforcement to be compelled in the courts in the name of the agent instead of that of the principal. It has been so held in case of a lease. Schaefer v. Henkel, 75 N. Y. 378; Melcher v. Kreiser, 28 App. Div. 362.

Also in the matter of a contract to erect a building. Henricus v. Englert, 137 N. Y. 488.

An executed contract under seal for purchase of lands, executed by the vendee in his own name, cannot be enforced by the principal as his contract where there was no proof of a ratification by the undisclosed principal. Briggs v. Partridge, 64 N. Y. 357.

The rule is different where a contract is not under seal. Miller v. Ball, 64 N. Y. 286.

The courts will adhere to the old rule that a sealed contract gives only to the persons executing the same the power to enforce the obligations expressed, while under the theory of our Code of Civil Procedure in simple contracts, the real party in interest must sue.

Doubtless circumstances might - exist which would modify the application of this rule by the impression of a trust which would allow the real beneficiary to assert his rights. Courts of equity enforce resulting trusts and will protect rights where such protection is needed to prevent an injury to the truster from any adverse action of the trustee.

Here no harm comes to the defendants in the carrying out of the contract. The real owner gives a full covenant deed. She interposes no objection to the execution of the contract as made. It is a case where her full and complete assent, evinced by her voluntary parting with title, would require affirmative action on her part in case any claim for equitable consideration is to be made by her. Silence gives assent, so far as her rights are involved; and it would be unjust to allow the defendants to make use of her ownership to justify repudiation of the contract where she freely joins in the execution for the plaintiff.

Specific performance must be adjudged, but the judgment may provide that the plaintiff shall, by conveyance in due- form, join in the covenants of warranty, and the defendants’ deed to the plaintiff may declare the same to be executed to him as trustee for the mother.

Ordered accordingly.  