
    THE METHODIST EPISCOPAL CHURCH HOME v. WILLIAM N. THOMPSON.
    
      Real estate—contract for purchase of—action Toy vendee to recover deposit, &c.—what defects in title will sustain.
    
    When a party seeks to disaffirm a contract for the purchase of real estate and to recover the deposit made on account of the price, etc., on the ground of a defective title, he must satisfy the court that the title is bad before he can recover. It is not enough to merely show that it is doubtful.
    Accordingly, where plaintiff, the vendee, refused to take title on the ground that there was an outstanding claim of title, under which certain persons claimed title to the property in question, but the undisputed evidence on the tiial showed that defendant, the vendor, and his grantors, had been in actual possession for about thirty years under a claim of title beginning in 1825, and there was nothing tending to show possession in any other person, or that any third person had a valid claim or lion on the land.
    
      Held, that plaintiff could not recover the deposit made by him on account of the purchase price. The facts show a clear adverse possession under the Code for over twenty years, which makes a title that a purchaser may not refuse.
    
      Before Sedgwick, Oh. J., and Truax, J.
    
      Decided July 23, 1885.
    Application by the plaintiff for judgment, on a verdict for the plaintiff, ordered by the trial court, subject to the opinion of the general term.
    Action to recover $1,500, deposited by plaintiff as vendee, on signing a contract for the purchase and sale of real estate, also $608.33 expenses and counsel fee in examining title.
    The plaintiff, a charitable corporation, desiring to purchase property on which to build, entered into a contract with this defendant, whereby defendant agreed to sell, and plaintiff to purchase, six lots of land on the north-west corner of Eighty-eighth street and Fourth avenue, in the city of New York, one hundred and thirty feet on Eighty-eighth street by half the block in depth, for the sum of $45,000, whereof $1,500 was deposited with the defendant on the execution of the agreement, and the balance, viz., $43,500 was to be paid on the delivery of the deed, which deed was to contain full covenants and warranty, and the premises to be free from all incumbrance. Plaintiff employed counsel to examine the title, and upon such examination it Was found that there was another outstanding chain of title claimed adverse to it, as follows : On August 30, 1819, one Elemuel Sheldon filed and recorded in the register’s office of New York county, a deed from one Patrick McKay and wife, to said Elemuel Sheldon, conveying with other property, the premises in question, and annexed to said deed and recorded therewith was a map showing said premises and entitled, “ A map of a piece of land situate in the ninth ward of the city of New York, on the Harlem Height, the property of Patrick McKay, Esq., containing seven acres and three roods, fifteen perches, surveyed New York, October 1, 1818, by Adolphus Loss, surveyor.” After various mesne conveyances, there was also recorded, on January 16, 1833, a deed of same premises to Joseph Parks, said Joseph Parks died and left a will, which was duly admitted to probate March 1, 1837, whereby said testator devised his estate to his executors, in trust, and on February 19, 1868, by an order or decree of the supreme court, new trustees were appointed. Subsequently an action of ejectment was brought in the United States circuit court for the southern district of New York, by said heirs, against the defendant for the recovery of the possession of the premises in question and adjoining property, and such action is now pending.
    The defendant tendered a good and sufficient deed of the premises, which the plaintiff refused to accept, objecting to the title because of the claim of ownership by persons representing themselves to be the heirs of said Parks. The defendant asserted that the title was good . and sufficient, tendered affidavits of adverse possession for twenty years and more, and offered to put the plaintiff in possession.
    Further facts appear in the opinion.
    
      Kelly & MacBae, attorneys, and William TI. Arnoux and W F. MacBae, of counsel for plaintiff:
    I. Plaintiff is entitled to a good and marketable title, one that is indefeasible and unincumbered, and the defendant’s title is not such a one (Burwell v. Jackson, 9 N. Y. 535 ; Fletcher v. Button, 4 Ib. 396 ; Story v. Conger, 36 Ib. 673 ; Delevan v. Duncan, 49 Ib. 485 ; Piser v. Lockwood, 30 Hun, 6 ; Post v. Bernheimer, 31 Ib. 247; Chamberlain v. Brady, 49 Super. Ct. 484 ; Atkinson Marketable Titles, 2, 3, 379 ; Bostwick v. Beach, 31 Hun, 343). If there is any defect, the purchaser may refuse, however remote the probability of his ever being incommoded thereby (Brooklyn Park Com. v. Armstrong, 45 N. Y. 234). The court will not compel a purchaser to accept a title which is so doubtful that it may expose him to litigation, though the court may believe it to be good (Post v. Bernheimer, 31 Hun, 247). A purchaser cannot be compelled to take a title depending upon adverse possession and parol proof to support it, unless in a case beyond all reasonable doubt (Mott v. Mott, 68 N. Y. 246 ; Hartley v. James, 50 Ib. 38). It is not enough that the vendor has an equitable title which the purchaser may acquire together with the possession and use of the premises (Fletcher v. Button, 4 N. Y. 396 ; See also, King v. Knapp, 59 Ib. 462). To constitute a cloud upon title it is sufficient that there be a deed valid upon its face, accompanied with a chain of title, under such circumstances that a court of equity can see that the deed is likely to work mischief (Fonda v. Sage, 48 N. Y. 173). Anything is a cloud upon a title which is calculated to cast doubt or suspicion upon the title, or seriously to embarrass the owner either in maintaining his rights or disposing of the property (Ward v. Dewey, 16 N. Y. 519). A purchaser is entitled to a marketable title. As a general rule a title which is open to judicial doubt is not a marketable title. A purchaser is not to take a property which he can only acquire in possession by litigation and judicial decision, nor one the possession of which he must thus defend (Shriver v. Shriver, 86 N. Y. 575).
    II. If plaintiff “was not bound to accept ” the title tendered by defendant, and clearly it was not, then plaintiff is entitled to recover back the money paid under the contract, as upon a consideration that has failed (Bruner v. Meigs, 64 N. Y. 515).
    III. “ The right to a good title is not a right growing out of the agreement between the parties, but given by the law—the purchaser being entitled to have a clear title shown, not merely on the ground that it is stipulated for by the agreement, but on the principle growing out of the nature of the contract, that, as the purchaser parts with good money, the vendor shall give in return an estate with a clear title ” {Atkinson Marketable Titles, 379). “ The distinction is not between a title which is absolutely good or bad, but between a title which the court considers so clear that it will enforce its acceptance by a purchaser, and one which the court will not go so far as to declare it a bad title, but only that it is subject to so much-doubt that a purchaser ought not to be compelled to accept it. In short, whatever may be the private opinion of the court as to the goodness of the title, yet if there be -a reasonable doubt, either as to matter of law or fact, a purchaser will not be compelled to take ” (15. 2, 3).
    
      John W. Pirsson, attorney, and John E. Parsons and John A. Beall, of counsel for defendant:
    I. The plaintiff has utterly failed to show title in the Parks heirs, or that there ever was any possession under the alleged claim.
    II. In order to recover, the plaintiff must show that the title is bad, or at least that it is really doubtful. It may be conceded that the general rule in equity is that a purchaser will not be compelled to take a doubtful title ; but then the doubt must be shown to be real, or, in other words, substantial. This case is, however, very different; the purchaser is the actor; it seeks • to disaffirm and rescind an executory contract, and to recover the deposit paid on the sale. Here it is the duty of the plaintiff to satisfy the court that the title is absolutely bacl. A merely doubtful title will not do (O’Reilly v. King, 28 How. Pr. 408 ; 21 Mich. 351). u The court must govern itself by a moral certainty, for it is impossible in the nature of things that there should be a mathematical certainty of a good title” (Lord Hardwicke, 2 Atk. 20). Unless plaintiff’s objection to the title is sustained, it cannot recover back its part payment of purchase money (Page v. McDonnell, 55 N. Y. 299 ; Lawrence v. Miller, 86 Ib. 131).
    III. If the defendant had brought an action for specific performance upon the facts proved, he would have been entitled to a decree, (a) The title by adverse possession alone is sufficient for such a decree (Murray v. Harway, 56 N. Y. 337 ; Shriver v. Shriver, 86 Ib. 575 ; Sherman v. Kane, 86 Ib. 57 ; Seymour v. Delancey, Hopk. Ch. 436 ; Pratt v. Eby, 67 Pa. St. 396). (5) The objection made to the title is not sufficient to excuse the plaintiff from specific performance. There must be at least a reasonable doubt as to the title—such as affects its value, and would interfere with its sale to a reasonable purchaser, and thus render the land unmarketable. A defect in the record title may, under certain circumstances, furnish a defense to the purchaser. But there is no inflexible rule that a vendor must furnish a perfect record or paper title. It has frequently been held that defects in the record or paper title may be cured or removed by parol evidence (Hellriegel v. Manning, 97 N. Y. 60). There must be some substantial debatable grounds on which the doubts can be justified (Vreeland v. Blauvelt, 23 N. J. Eq. 403). The doubt must be such as would produce a bona fide hesitation on the mind of the chancellor (Kastenbador v. Spotts, 80 Pa. St. 430). If the doubts arise upon a question connected with the general law, the court is to judge whether the general law on the point is or is not settled (Pyrke v. Waddingham, 10 Hare, 1). (c) The plaintiff’s objection in this case was that the heirs of Joseph Parks claimed to be the owners of the property under a chain of title beginning with a deed by Patrick McKay, made in 1818, and ending in a deed to Parks in 1830. It does not go back to the original owner, the sovereign, and it does not appear that there was any possession under such claimed title at any time. The true test of the effect to be given to this objection is, could the parties alleging such adverse title in ejectment, or other appropriate action against the defendant, recover the premises. The defendant’s chain of title is perfect, and the actual possession by him and his predecessors is vastly greater than is necessary (§§ 365, 367, 369, 370, 371 and 372 Code Civ. Proc ; 3 Washburn Real Prop. 144, 114; Ottinger v. Strausburger, 33 Hun, 466 ; Woolsey v. Morss, 19 Ib. 278).
    There can be no question that all persons claiming as the heirs of Parks, are absolutely barred by the statute. Joseph Parks died about March 1, 1837. Where an adverse possession begins to run in the lifetime of the ancestor, it will continue to run against the heir, notwithstanding any existing disability on the part of the latter, when the right accrues to him or her (Jackson v. Moore, 13 Johns. 513 ; Bradstreet v. Clarxe, 12 Wend. 603 ; Peck v. Randall, 1 Johns, 176 ; Fleming v. Griswold, 3 Hill, 85. Becker v. Van Valkenburgh, 29 Barb. 319).
    IV. The fact that the purchaser may be exposed to utterly groundless litigation, will not justify him in refusing to take title, if it is clear that such litigation cannot be successfully prosecuted (Kelso v. Lorillard, 85 N. Y. 177; Belmont v. O’Brien, 12 Ib. 394; Murray v. Harway, 56 Ib. 337; Chase v. Chase, 95 Ib. 373 ; Brooklyn Park Comm. v. Armstrong, 45 Ib. 234 ; Post v. Bernheimer, 31 Hun, 247).
    V. The defendant tendered plaintiff a good title in fee simple, with possession, which it was bound to accept, and upon which specific performance would be decreed. The record claim of title is without a flaw, beginning with the grants of the colonial governors to the town of Harlem, and coming down to the defendant through some sixteen mesne conveyances, beginning with the commissioner’s deed in 1825, and two sales under foreclosure. (6) The title by possession alone is such that specific performance would be decreed. Proof by affidavit of such possession admittedly sufficient was tendered. And upon the trial that possession was clearly proved for upwards of 45 years. Defendant was not bound under the contract to give a marketable title, but if the judgment of the court is that the title is good, it is marketable (Romilly v. James, 6 Taunt. 263; Wrigley v. Sykes, 21 Beav. 337 ; Cruikshank v. Bronson, Sup. Ct. unreported; Belmont v. O’Brien, supra ; Leggett v. Mutual L. I. Co., 53 N. Y. 394). The contract was to give “ a proper deed containing a general warranty and the usual full covenants for the conveying and assuring to it or them, the fee simple of the said premises, free from all incumbrances.” The title means the legal estate in fee, free and clear of all 
      valid claims, liens, and incumbrances (Jones v. Gardner, 10 Johns. 265).
   By the Court.—Truax, J.

The parties hereto entered into a contract in writing for the purchase by the plaintiff from the defendant, and for the sale by the latter to the former, of a plot of land situate in the city of New York. On the day fixed for taking title, the defendant tendered to the plaintiff, and the plaintiff refused to take the full covenant warranty deed required by the contract of sale, and demanded from the defendant the money paid on account of the purchase price of the property, and the expenses incurred in searching the title. The defendant refused to accede to this demand, and thereupon plaintiff brought this action to recover the moneys so paid, and the expenses so incurred as aforesaid.

This court has decided that when a party seeks to dis-affirm and rescind a contract of sale and to recover back the deposit paid on account of the purchase price on the ground of a defective title, he must do more than merely show that the title is doubtful, he must satisfy the court that the title is bad, before he can recover (O’Reilly v. King, 28 How. 408).

The ground of plaintiff’s refusal to take title was that the defendant’s title to the property was not a good one, because of a claim of ownership in certain persons who represented themselves to be the heirs of one Joseph Parks; but the undisputed evidence shows that the defendant and his grantors have been in possession of the property for about thirty years under a claim of title beginning in 1825. There is no testimony opposed to this that tends to show possession in any person other than the defendant or his grantors, and there is no evidence that any third person has any valid claim or lien on the property. On the evidence now before the court, a trial judge would be bound to direct a jury to find that the' defendant was the. owner of the property. In the words of Shriver v. Shriver (86 N. Y. 575), the facts of the case make out a continuous, uninterrupted, actual possession, beginning with an entry under claim of exclusive title, founded on a written instrument and kept up for over twenty years {Code, § 369). A clear adverse possession for that length of time makes a title which a purchaser may not refuse to take (16.)

The verdict of the jury is set aside, and judgment is ordered for defendant, dismissing the complaint, with costs.

Sedgwioic, Oh. J., concurred.  