
    HENRY W. DROGE, Respondent v. EUGENE H. CREE, Appellant.
    
      Title to real estate.—Action to recover the deposit made upon a contract for sale of real estate, and for damages, on the ground that the defendant could not give a good title.
    
    
      Held, That, upon the whole ease, it is clear that the defendant cannot give such a good and marketable title as the plaintiff has a right to demand, and that the judgment of the court below, holding the same view, should be affirmed.
    Before Sedgwick, Ch. J., Freedman and McAdam, JJ.
    
      Decided May 4, 1891.
    
      Appeal by defendant from a judgment entered in favor of plaintiff upon the decision of a judge at special term, a trial by jury having been waived.
    
      Ashbel P. Fitch, for appellant, argued :—
    I. As to law of record. The Revised Statutes provide for a registration of deeds of real estate for the protection of purchasers thereof. Part 2, chap. 3, § 1, provides that conveyances of real estate shall be recorded in the office of the clerk of the county where such real estate shall be situated, and every such conveyance not so recorded shall be void as against any subsequent purchaser of the same estate, whose conveyance shall be duly recorded. Section 2 provides that the clerk of the county shall provide different sets of books for the recording of deeds and mortgages, in one of which sets all conveyances not intended as mortgages shall be recorded. Section 24 provides that every conveyance shall be recorded in the order and as of the time when the same shall be delivered to the clerk for that purpose, and shall be considered as recorded from the time of such delivery. Section 25 provides that the recording officer shall make an entry in the record immediately after the copy of every conveyance recorded, specifying the time of day, the month and year when the conveyance was recorded. These sections must be taken together to show what constitutes a perfect record of a conveyance of real estate that shall be a sufficient notice to a subsequent purchaser. If a deed is left with the proper officer for record, and is lost or destroyed without being copied into the proper book of deeds, there has not been in such case a compliance with sections 1 and 25 of the Revised Statutes above mentioned, and therefore is not notice to a subsequent purchaser. There is no evidence of any such loss in the case at bar. An agreement giving one mortgage priority over another, and recorded in the book of deeds instead of the book of mortgages, is not notice to subsequent purchasers or assignees from the mortgage. Gillig v. Maas, 28 N. Y. 191; Bank for Savings v. Frank, 45 Superior Ct. 405. A deed intended as a mortgage and not recorded in the book of mortgages, is no notice. White v. Moore, 1 Paige, 551; Brown v. Dean, 3 Wend. 208. It could not be claimed that where a deed is properly drawn and left for record, but by mistake the description is so recorded as to cover an adjoining lot, that the record is good to the lot described in the deed. The case of the Manhattan Co. v. Laimbeer, 108 N. Y 578, relied upon by counsel for plaintiff, is not in point. There the question was under the statute for the formation of partnerships, which provides that the certificate thereof shall be filed and also recorded in the county clerk’s office. The certificate was filed but not recorded; and the question was whether this omission prevented the formation of a limited partnership, and left the parties who attempted to form the partnership liable as general partners.
    II. Application of the law of record to this case. The evidence shows that the deed from Elton to Stillman was not recorded in the set of books which is kept for the record of deeds in the office of the register of Westchester county, but- was recorded in a book of deeds of “ Rural Cemeteries.” The chief searcher, Mr. Dick, testified that some of the deeds of Rural Cemetery lots are recorded in the regular set of books for deeds. Under the statute there could be kept but one set of books in which to record deeds (87 N. Y. pp. 260, 264). But one set was here kept, and the deed in question was not there recorded. In addition to delivery, to keep the record perfect, it was necessary to record the instrument at the proper time, in its proper order, in the proper book, (87 N. Y. supra, 264), not simply to record it anywhere.
    
      III. As to plaintiff’s claim of adverse possession. The person who establishes a legal title to the premises is presumed to have been possessed thereof within the time required by law, unless the premises have been held adversely to the legal title for twenty years. Code, § 368. The evidence shows that the legal title to the land in question is in the defendant from the executors of the last will and testament of Elton (who is the agreed source of title), through several conveyances. To constitute an adverse possession, land is deemed possessed when usually cultivated or improved, or when protected by a substantial enclosure, or when used for fuel or fencing timber, or for purposes of husbandry, or for ordinary use of the occupant. Code, § 370. Possession must be actual, open and visible. Brown v. Volkening, 64 N. Y. 76-82; Miller v. Long I. R. R. Co., 71 Ib. 380 ; Thomson v. Burnham, 61 Ib. 52 ; Pope v. Allen, 90 Ib. 298; Page v. Waring, 76 Ib. 463, 470. Such possession, under an unrecorded deed as will amount to notice to a subsequent purchaser, must be under the unrecorded deed, and must be actual, open, visible, so that the subsequent purchaser could go upon the land and obtain, by inquiry, the information of the unrecorded deed. It was incumbent upon the plaintiff to show a possession for twenty years. If any possession is proved, it is only for about eighteen years. A purchaser from the heir or from an executor will be protected to the same extent against an unrecorded deed from the ancestor as though he had purchased from the ancestor himself. Webb on Record of Title, § 184; Martindale on Conveyancing, 2d ed. p. 262.
    IV. The power of sale given by the will of Elton was exercised by the executors, and the case of Chamberlain v. Taylor, 105 N. Y. 185, is not in point. The will of Elton does not create an express trust under the statute. The power to sell is imperative and although the title to the land may have vested in the widow and children, it was subject to the execution of the power. The power of sale having been exercised, there was an equitable conversion, and the title and interest of the widow and children was thereby transferred to the proceeds of the sale and in the proportions or shares provided by the testator. Dodge v. Phelps, 23 N. Y. 69 ; Crittenden v. Fairchild, 41 Ib. 289; Lent v. Howard, 89 Ib. 169; Cooke v. Platt, 98 Ib. 35; Konvalinka v. Schlegel, 104 Ib. 125 ; Cotton v. Taylor, 42 Barb. 578.
    
      Poor & Puffy, attorneys, and Walter S. Poor of counsel, for respondent, argued :—
    I. Appellant was bound to give respondent a marketable title. If there is a reasonable doubt as to the title ofiered, such as to affect the value of the property, and to interfere with its sale to an innocent purchaser, the title is not marketable and the purchaser cannot be compelled to complete his purchase. Hellreigel v. Manning, 97 N. Y. 56; M. E. Church v. Thompson, 108 Ib. 618; McPherson v. Smith, 49 Hun, 254, 257.
    II. A reasonable doubt as to the title offered exists. Such a doubt arises if it be shown that there are outstanding claims to a part of the premises on the part of persons not before the court. Fleming v. Burn-ham, 100 N. Y. 1, was a motion to compel a purchaser to take title in an action for partition. It was objected on the part of the purchaser: (1) That a quit-claim deed made by two out of three acting executors was invalid. (2) That the children under the will took an absolute fee in the premises. (3) That there was a question' of adverse possession as to one of , the heirs who had died, and parties claiming under him were not made parties. The court refused to compel the purchaser to complete his purchase, for the reason that while a decision would bind the parties, it would not bind those not before the court, and that a purchaser should not be compelled to accept a title that might subject him to further litigation. Appellant could not maintain ejectment under his title, and therefore cannot give respondent a good title. Chamberlain v. Taylor, 105 N. Y. 185.
    III. Appellant’s first' exception to a finding of fact was properly overruled. A copy of the conveyance, duly certified by the recording officer, was introduced. This is ample proof that the deed was received in the proper office for record. It could be there for no other purpose. Nichols v. Raynolds, 1 R. I. 30-36; Dubose v. Young, 10 Ala. 365. And leaving the deed in the proper office was all that Stillman was bound to do to protect himself and make the record complete as to him. Mut. L. I. Co. v. Dake, 87 N. Y. 257, 264; Simonson v. Falihee, 25 Hun, 570; Bedford v. Tupper, 30 Ib. 174. The failure of a public officer to perform his duty cannot prejudice parties who have complied with a statute made for their protection. Manhattan Co. v. Laimbeer, 108 N. Y. 578.
    IV. Upon the argument before the court below it was insisted that a record made in the wrong book was notice to no one, and Gillig v. Maas, 28 N. Y. 191, and Bank v. Frank, 45 Super. Ct. 405, were cited in support of the proposition. It is perhaps enough to say that Gillig v. Maas was decided in 1863, and Bank v. Frank in 1879, while M. L. Ins. Co. v. Dake was decided in 1881, Bedford v. Tupper in 1883 and Simonson v. Falihee in 1888; so that if the cases cited by appellant stated the rule to be as appellant claims, they must be considered as overruled by the later decisions. But neither Gillig v. Maas nor Bank v. Frank decide as appellant claims. In Gillig v. Maas the decision is placed squarely on the ground that the instrument was not a proper one for record. (See 28 N. Y. 191, p. 212.) And so it was in Bank v. Frank. (See 45 Super. Ct. 404, p. 407.) Nor do White v. Moore, 1 
      Paige, 551, nor Brown v. Dean, 3 Wend. 208, cited below, apply here. The statute expressly declares that unless such papers be recorded together as a mortgage, the party for whose benefit it was made shall derive no advantage from the record. 1 R. S. 756, §§ 2, 3. In those cases the deeds were absolute and recorded as such, but there were defeasances not recorded showing the transaction to have been a mortgage, not a sale.
   By the Court.—Freedman, J.

This action was brought to recover back the deposit made by the plaintiff on a contract for the purchase and sale of real estate and to recover the cost of searching the title, upon the ground that the defendant was unable to give a good title to the premises according to his contract. The only question on this appeal is whether or not the defendant was able to give a good marketable title. The plaintiff was entitled to a good marketable title within the rule laid down by the Court of Appeals in Hellreigel v. Manning, 97 N. Y. 56; The Methodist Episcopal Church Home v. Thompson, 108 Ib. 618, and Moore v. Williams, 115 Ib. 586.

It appears that one Robert H. Elton was the common source of title. He laid out a cemetery and filed a map thereof, and parts of two of the lots of said cemetery are a part of the premises the title to which is in question. These two lots Elton conveyed by warranty deeds and with reference to the map to James Stillman and James L. Parshall, and the said grantees entered into use and occupation under said deeds. The plot laid out for a cemetery was enclosed and divided into lots, and there were paths between the lots. There is, no proof that the cemetery was ever incorporated. The deeds for these two lots were left with the proper officer for record, and were recorded in a book of deeds kept in the office of the proper recording officer, but they were not recorded in the book prescribed by statute for the record of deeds under the statute, but in a book entitled, “ Record of Deeds, No. 1, Rural cemeteries, Westchester county.”

Robert H. Elton died, leaving a will, which gave his executors no title to his real property, but which contained the following power, viz.: I authorize, empower and direct my executors hereinafter named at such time or times and in such manner and parcels as they shall deem for the best interest of my estate, to sell and convey all my real property and estate. And I also empower my said executors to carry out any and every contract which I have made for the sale of any ¡Dart or parcel of my said real property, and to execute and deliver such deed or deeds as shall be necessary and proper to convey the premises as contracted on the compliance with the terms of such contract by the party contracted with.”

On the 31st- day of December, 1874, more than 20 years after the conveyances to Stillman and Parshall above referred to, the executors of Robert H. Elton, assuming to act under the power in the will as quoted, executed a quit-claim deed, covering the premises in question, to Mary Beck, under whom the defendant claims title. It is conceded that the lots conveyed to Stillman and Parshall cover the fronts of the lots which the defendant agreed to sell to the plaintiff.

The facts being as stated, and the defendant not having established title by adverse possession in himself and his predecessors for at least 20 years, there can be no doubt of the correctness of the judgment, even if it be assumed that the deeds to Still-man and Parshall were not recorded as prescribed by statute. The power of the executors attached only to real estate of which their testator died seized. It did not attach to real estate which the testator had conveyed. Stillman and Parshall having acquired title to their respective lots by warranty deeds from the testator himself, and having entered thereunder, the executors had no more right or power to sell the said lots, or any part thereof, than the testator would have had at that time, if he had lived and had undertaken to do so, for there is not a particle of evidence that the testator or the executors ever regained title or possession from Stillman' and Parshall. It is unnecessary, therefore, to determine with precision the effect to be given to the recording of the deeds to Stillman and Parshall. Attention may be called, however, to the fact that there are authorities to the effect that leaving an instrument required by law to be recorded in the proper office for record, is all that a party is bound to do, and that the failure of a public officer to perform his duty will not prejudice a "party who has complied with a statute made for his protection. The Mutual Life Ins. Co. v. Dake, 87 N. Y. 257 ; Manhattan Co. v. Laimbeer, 108 Ib. 578.

Upon the whole case it is clear that the defendant cannot give such a marketable title as the plaintiff has a right to demand.

The judgment should be affirmed, with costs.

Sedgwick, Ch. J., and McAdam, J., concurred.  