
    William B. Mead, App'lt, v. Charles A. Mead et al., Resp’ts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 13, 1889.)
    
    Mortgage— Partition — Sale—When purchases hat repuse to complete SALE.
    In an action in partition, a sale was ordered, but the purchaser refused to take title, it appearing that there was a mortgage outstanding which was a lien on the property sold. The only proof tending to show that the mortgage was paid, was an affidavit of plaintiff’s attorney to the effect that for ten years before her death—she died in 1887, the sale took place in 1888—the deceased owner of the property claimed that it was free from all incumbrances. Held, insufficient to throw upon the purchaser the risk of its present existence; that the purchaser is entitled to a merchantable title.
    Appeal from, an order made at the Kings county special term.
    The order denied a motion made on behalf of the infant defendant, Mary Lord, to compel the purchaser to take title to certain premises sold in partition, unless said infant defendant procure a mortgage, alleged to be an outstanding lien on the property sold, to be canceled of record.
    
      Edward W. Sheldon, for app’lt; Bacon & Merritt, for resp’ts.
   Barnard, P. J

The case shows that there is a mortgage outstanding which is an apparent lien on the property sold in partition. The deed proposed to be given by the referee will be subject to this lien, if it exists. The mortgage was dated and recorded in 1830, and the mortgagor took a re-conveyance in 1848,-subject to this mortgage.

This deed of reconveyance was not recorded until 1873. The mortgagor died in 1865, leaving a son and daughter, and the son -conveyed to the daughter. She conveyed away the property and took a reconveyance, and died in 1887, the owner.

There is no mention of the mortgage of 1830 in the deed from the mortgagor’s son to his sister, nor in her deed to her grantee, nor in the deed back again. The purchaser is entitled to a merchantable title. Presumably the mortgage was good in 1873 when the deed of reconveyance-to Daniel Walden, the mortgagee, was recorded as against the owners of the title. The only proof to show the mortgagor paid, is that of the plaintiff's attorney, who makes an affidavit that, for ten years before his death, the deceased owner of the property claimed that it was free of all incumbrances.

The evidence is not sufficient to throw upon the purchaser the risk of its present existence. The condition in the order in respect to a cancellation under the statutes was reasonable, and we think the statute sufficient to include this casa

If proof be made of the facts as shown in the affidavits, and there is no response to the notice given by the court, the proof of payment will be sufficient to order the cancellation.

The order should be affirmed, with costs and disbursements.

Pratt, J., concurs.  