
    Mary L. Todd, Resp’t, v. The Union Dime Savings Institution of the City of New York, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 31, 1887.)
    
    1. Real property—Title to—What is not marketable.
    Where a title to real property is open to a reasonable doubt, or where after the vendor has produced his proofs of title, a reasonable doubt exists as to its validity, the title is not marketable.
    2. Seal—Recital of in attestation clause raises presumption of its existence—Force of—May be rebutted.
    Where in the attestation clause of an instrument purporting to convey the title to land, it is stated to have been sealed and delivered in the presence of witnesses, in the absence of evidence to the contrary, the presumption arises that it was so sealed, but the strength of this presumption varies in inverse ratio to that of the evidence contradictory of it.
    
      Wm. A. Boyd, for resp’t; Arnoux, Bitch & Woodward, for app’lts; Arnoux & G. N. Boyce, Jr., of counsel.
   Potter, J.

This is an appeal from a judgment upon a trial before the court at special term. The action was brought to recover a portion of the purchase money deposited upon the execution of a contract for the sale of a lot and premises, known as 714 Madison avenue, and situated in the city of New York, together with the expense of a search in relation to the title thereof, upon the ground that the defendant, the vendor, had not such title as was required by the contract and the law to convey to the plaintiff.

The defect complained of arises from the want of a seal to a paper purporting to be a deed signed by Catherine A. Ferris to Griffith Rowe, of the premises in question, through which the defendant claims to have derived the title it contracted to convey to the plaintiff.

The contract was dated on the first day of December, 1885, and bound the defendant to execute, acknowledge and deliver to the plaintiff on the 30th day of December, 1885, a proper deed, etc. No question is made by defendant that the contract required the* defendant to be able to convey to the plaintiff a lawful title to the premises, nor is there any question made by defendant’s counsel that the plaintiff has the legal right to demand a marketable title.

It has been repeatedly held that a title open to a reasonable doubt, or if, after the vendor has produced his proofs of title, a reasonable doubt exists, the title is not marketable. Schriver v. Schriver, 86 N. Y., 575; Fleming v. Beenham, 100 id., 1.

Nor is there contention by defendant that if there was no seal, actual or presumptive, affixed to the paper purporting to be a deed from Mrs. Ferris to Rowe at the time it was delivered that the defendants had not the legal title.

This brings us to the consideration of the main question upon the appeal; whether the findings of the trial court, that the paper purporting to be a deed was not sealed at the time of its delivery to said Rowe.

We have read all the evidence contained in the case upon the question and considered it in connection with all the presumptions arising from the circumstances and are constrained to adopt the conclusion reached by the trial court.

Without referring minutely or in detail to the evidence bearing upon that question we think the testimony of the deputy clerk in the office where the deed was recorded and the making the dash mark in lieu of the indications of a seal are strongly persuasive that it had no seal upon it when left for record or when recorded. The fact that the same paper in every respect except a seal and having the same identical attestation clause and certificate of acknowledgement is presented for record and recorded some three years after the first record, is highly significant.

The time of this second record, is the time when the defendant was contemplating making a loan upon the premises and Hr. Arnold, a very intelligent and careful attorney and a witness called by defendant upon the trial was employed to make a search and an examination and he declined to advise the loan or to pass the title until he had been shown the identical deed with an actual and palpable seal affixed to it and it was again recorded.

This and other evidence satisfy us that the paper when" delivered by Mrs. Ferris to Rowe and when presented in behalf of the grantee for record had no seal upon it and that a seal was not placed upon it until after it was delivered and once recorded, and not until some time after-wards and probably when Mr. Rowe was desirous of obtaining a loan upon it and the loan was refused on account of the suspicious and unsatisfactory evidence in relation to a seal. . We do not think the testimony of Mr. Pinckney or of Mr. Post have much if any bearing upon the question; especially the testimony of the latter, who though he testifies to the remarkable fact that when he took the acknowledgement of the deeds of Mrs. Ferris, which were quite numerous and the practice extended through a number of years, he noticed that there was a seal upon the instrument, although he does not remember whether he wrote the certificate of acknowledgement or not or what premises the deed conveyed or who the grantee was or what his name was, until suggested or where the acknowledgment was taken or who was present and where he does not know or does not testify whether or not Mrs. Ferris signed or sealed the paper in his presence. The learned counsel cites numerous cases where the courts have presumed the paper bore a seal when delivered.

Such presumptions will prevail where there is not proof’ that the paper had no seal. But where there is proof positive and uncontradicted that there was no seal, the force of such presumption is too feeble to be appreciated and the force of the presumption is weak just in the inverse ratio that the proof is strong.

And this is substantially the rule laid down by Sugden on Powers, and cited by the appellant’s counsel, “where the instrument is a deed and on proper stamps, and it is stated in the attestation to have been sealed and delivered in the presence of the witnesses, it will in the absence of evidence to the contrary be presumed to have been sealed.”

We conclude, therefore, that there was no error in the finding from the evidence in the case.

The only remaining question is whether the court erroneously excluded any evidence upon the trial upon the part of defendant which should or could have produced a different finding.

It is contended upon the part of the appellant that an error of that character occurred in excluding the evidence of witness Pinckney as to the declarations of Mrs. Ferris.

We think otherwise. Mr. Pinckney testified that in 1874, whether before or after the deed was recorded the second time in May, 1874, does not appear, he examined the title of Mrs. Ferris’ property on Madison avenue, north Of Sixty-third street, with a view of her making a loan upon it, and which she did. He further testifies : I was - aware of these matters of record that have been given m evidence ; I can’t say as to the seal; at the time that I took that mortgage I thoroughly examined the record put in evidence here ; I think the time was about 1874; I may be mistaken in that.

The question, the answer to which was excluded, was : “What was said in regard to the matter between you and Mrs. Ferris?” We think the ruling was correct. The question was too indefinite for any practicable purpose.

No “matter” was specified or indicated. It might have had relation to any of the matters above detailed.

It is not the business or duty of a court to surmise that the answer would be competent evidence bearing upon some issue in the case and then strike out if it should otherwise turn out. The duty of counsel is to ask a question plain and proper upon its face, and if it is not, then with such explanation as will make it a legitimate inquiry. It was no doubt clear and distinct in the counsel’s mind what he proposed to prove. He should have made it so to the mind of the court.

If we could suppose with any degree of certainty that it related to the seal and if it was competent for her to speak of that, she had already said over her signature in the deed, in witness whereof she had set her hand and seal.

This was not said by her under oath nor was what she said to the witness under oath. Repeating it would not make it any higher or stronger evidence.

But it must be very clear that what she said had no relation to the premises in question. She was having an examination made as to the title of premises on which she was about to make a loan in 1874. She could not be taking a mortgage to secure a loan about to be made by her, on her own property or on what she had sold to Rowe who or whose grantee had procured a loan from the defendant upon the security of these premises in question. What she said was after she had given at least a deed or paper which divested her of all beneficial or substantial interest in the premises and when she was out of the possession of them. We are not aware of any case that goes so far. Sanford v. Ellithorp, 95 N. Y., 48.

The question moreover called for what witness said as well as what Mrs. Ferris said and made no discrimination. We do not think it was erroneous to overrule the question We are therefore constrained to the conclusion that the defendants’ title is not a marketable title, or a title beyond a reasonable doubt and that doubt of the most precarious character as it is dependent upon evidence of an uncertain and contradictory character. In other words, the plaintiff would not be getting what was contracted for,' but in its stead a law suit with the chances against her success in it.

The judgment should be affirmed, with costs.

Lawrence, J., concurs.  