
    The Talifer Company, Plaintiff, v. Amy Plaut Falk, Defendant.
    (Supreme Court, New York Special Term,
    November, 1918.)
    Title — what required to establish good title — evidence — where description by metes and bounds incorrect — dismissal of complaint — deeds.
    In an action at law to recover the amount paid upon the execution of a contract for the purchase and sale of real estate upon the ground that defendant did not have title to the whole of the premises, the burden is upon plaintiff to establish that defendant cannot give a good title to the property.
    Even though the plaintiff in such action establishes a prima facie ease of a defect in title, the defendant may show by parol evidence a state of facts in support of his title.
    In such an action it appeared that by a deed of the premises in question, made by one of defendant’s predecessors in title, the metes and bounds were described as: “ Beginning at a point. * * * distant twenty feet ” from a certain corner, “ which point is opposite the centre of a party wall between the building upon the land hereby conveyed and the building adjoining the same on the east,” which, according to the survey of the premises would make the width thereof nineteen feet and seven inches. No other deed in the chain of title made any mention of an easterly wall and the proof showed that reference thereto was incorrect and due to a scrivener’s error. The public records of the tax department show that the comer property was a vacant lot, and as matter of fact a mortgage made by the grantee of the premises in question contained no reference to an easterly party wall, but fixed the point of beginning as distant twenty feet from the corner mentioned in the deed. Held, that as in connection with other evidence it appeared that the intention of the parties to the deed in question was that the starting point was the said twenty feet and not the center of the easterly wall, plaintiff was not warranted in rejecting the title tendered, and its complaint -will be dismissed for lack of proof that there was a reasonable doubt of defendant’s title which was acquired under a devise to her from one whose title was deducible from the referee’s deed under the sale in foreclosure of said mortgage.
    While ordinarily such a monument as the “ center ” of the party wall would be of great importance in determining the starting point, yet it conclusively appearing that the easterly wall was not a party wall, then due weight must be given to the monument fixing the beginning at a point coincident with the easterly boundary of the easterly wall and reconcilable with the description that the premises had a frontage of twenty feet.
    In an action to foreclose said mortgage one who held the title under a deed which described the premises by a description similar to that appearing in the mortgage and in the deed to plaintiff’s testator, and the only one who could have disputed the title of the mortgagee to the five inches now in dispute was made a party defendant and not only did not question said title but affirmatively .asserted in Ms schedules in bankruptcy that he owned no real property. Held, a further reason for upholding defendant’s title to the disputed five-inch strip, as the decree in foreclosure and the sale thereunder were binding upon all proper parties to the action, the force and effect of said decree being in nowise affected by said defendant’s failure to contest the plaintiff’s claim in that action.
    Action to remove cloud on title.
    Davies, Auerbach & Cornell (Warner B. Matteson and Martin A. Schenck, of counsel), for plaintiff.
    
      Wise & Seligsberg (Isaac Lan.de, of counsel), for defendant.
   Greenbaum, J.

Judgment accordingly.  