
    Isaac Knee, Jr., v. Ellen Kuykendall et al.
    
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 14, 1886.)
    
    Partition—Judicial sale—Title—When court of equity will not ENFORCE COMPLETION OF PURCHASE.
    A judgment having been rendered in apartition suit directing the sale of the premises, and a party having bid for them at the sale, but refusing upon tender of a deed to complete his purchase, on the ground that the property was incumbered by a condition. Upon appeal from an order that he complete his purchase: Held, that a purchaser of real property at a judicial sale must be furnished with a complete and undoubted title, and if there be a reasonable doubt of the marketableness of the title tendered, or a reasonable chance that a third person may question the same, a court of equity will not compel an acceptance thereof.
    Appeal from an order made by the special term requiring Edwin R. Sheridan, the appellant to complete purchase of lands sold under a judgment in a partition suit.
    The subject of the action formerly formed part of a farm owned by Cyrus P. Smith, and sold by him in parcels to purchasers.
    One of these parcels, including the lot in question, he sold in 1851, to Henry Barclay and John Moore, conveying the same to them by deed, the habendum clause of which provided, that certain classes of buildings, should not be erected thereon and limited the buildings which might be erected to those above a specified cost. By his will he gave his executors and trustees power to sell his real property, and execute deeds therefor.
    Subsequently the executors made a deed dated May 4, 1886, to the parties then owning the premises which purported to release them from the condition. In an action for partition of the premises, a decree was made that they be sold, and at the sale a purchaser having bid thereon subsequently refused to complete the purchase because the premises were.^incumbered by the condition in the deed from Smith to Barclay and Moore.
    
      H. C. M. Ingraham, for app’lt; Michael Trust, for resp’t.
   Dykman, J.

A purchaser of real property at a judicial sale must be furnished with a complete and undoubted title, and if there be reasonable doubt of the marketableness of the title tendered, or a reasonable chance that a third person may question the same, a court of equity will not compel an acceptance thereof. Post v. Bernheimer, 31 Hun, 253; Shriver v. Shriver, 86 N. Y., 575; Fleming v. Burnham, 100 id., 1.

In the face of these authorities the power of this court should not be exerted to compel the completion of the purchase under the judgment in this action, for the reason that the purchaser would not receive a marketable title.

The property is subject to a condition subsequent which is quite restrictive, and might be very objectionable to many persons desiring to purchase the same for business purposes, unless the release of the same by the executors of the grantor in the deed which contains it, is sufficient for its extinguishment. That is a question which we cannot decide here by any judgment or order that would conclude the heirs of the original grantor, and the purchaser would be exposed to danger and risk of a litigation from that quarter.

The order appealed from should be reversed and an order entered releasing the purchaser and returning the money he has paid,, with his disbursements on this appeal, but no costs.

Barnard P. J., concurs; Pratt, J., not sitting.  