
    William R. Ferry et al., App’lts, v. Rebecca Sampson et al., App’lts, and Herman Wronkow, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed March 5, 1889.)
    
    1. Death—Proof of.
    A., whose home and domicile were in the city of New York, being then unmarried, went away from home in 1842, being then about twenty years of age, ’but in that year returned to New York on a visit. In 1846 he wrote his mother from Missouri, stating that he was on his way home by way of New Orleans. This was the last that has been heard from him. Up to the year 1846 he was accustomed to write his mother frequently. After that year letters were addressed to him by members of the family, but no answers were received and fruitless inquiries were made to ascertain whether he was alive, and they believe he is dead.- He had a valuable interest in property left by his father, who died in 1833, which has never been claimed by him but has been in the undisputed possession of his mother and his collateral kindred, claiming by descent from him. Reid, sufficient proof that he was dead and left neither a widow or child.
    3. Title—Marketable title defined—Purchaser at judicial sale not compelled to take doubtful title.
    _ A purchaser on a judicial sale is entitled to a marketable title (that is a title free from reasonable doubt i, and courts will not compel a purchaser to take title where a doubtful question of fact relating to outstanding right is not concluded by the judgment under which the sale is made.
    3. Same—Exception to rule.
    The rule is not absolute that a disputed fact not determined by the judgment is in every case a bar to the enforcement of the sale. It depends in some degree on discretion. If the existence of the alleged fact which is supposed to cloud the title is a possibility merely or the alleged outstanding right is a very improbable and remote contingency, the court may compel the purchaser in such case to complete his purchase.
    
      Appeal from, an order of the supreme court, general term, first department, affirming an order of a special term discharging the purchaser at a partition sale herein from completing his purchase.
    
      Henry H. Man, for appl’ts; D. Solis Bitterband for resp’t..
    
      
       Reversing 17 N. Y State Rep., 428.
    
   Andrews, J.

We think the objection to the title on the ground that Robert Waite Armstrong, the devisee of the premises under the will, of his father, was not shown to be dead, or if dead, that it was not shown that he died intestate, or leaving no widow or issue surviving, ought not to-have prevailed.

The testator died February 1, 1833, and his will was proved March 20, 1833. It was shown that Robert Waite Armstrong, whose home and domicile were in the city of New York, being then unmarried, went away from home prior to 1842, being then twenty or twenty-one years of age. He returned to New York on a visit in that year, and went away again, and in 1846, wrote his mother from Missouri, stating that he was on his way home by way of New Orleans. This was the last that has been heard from him Up toithe year 1846, he was accustomed to write his mother frequently. After 1846, letters were addressed to him by members of the family, but no answers were received, and fruitless inquiries were made to ascertain whether he was alive. It was generally believed by his relatives and friends that he was dead; and his mother, some years afterwards, believing that she was entitled to the premises as his heir, erected houses on the land. The mother died in 1859. The family never heard that Robert Waite Armstrong had been married, and no widow or issue has ever appeared to claim any interest in the land. It is possible that Robert Waite Armstrong may be living, or that he may have died leaving a widow and children. If either of these facts existed, the title is imperfect, unless indeed, as is claimed, the judgment in partition concludes Robert Waite Armstrong, or any widow or issue left by him, from now asserting any title to the premises, a point which we do not consider.

The presumption of the death of Robert Waite Armstrong, intestate, and without leaving a widow or children surviving, is upon the facts disclosed, very strong, amounting to scarcely less than certainty. It cannot be doubted that- he knew of the devise to him in his father’s will. He was a necessary party to the probate.

In 1842 he was, as one witness testifies, about twenty-five years of age, and when here at that time it is extremely improbable that he did not learn of the provisions in his father’s will, if he did not know of them before. The presumption of his death does not depend simply upon the lapse of time. It is enforced by the fact that he had a valuable interest in property, which, if living, he would, according to common experience, have long since asserted and claimed. But for forty years it has been in the undisturbed possession of his mother and his collateral kindred, claiming by descent from him. Meanwhile neither Robert Waite Armstrong, nor any one claiming to be his widow or issue, has given the least sign. It is scarcely conceivable that if he had wife or children, he would not have informed them of this inheritance.

It is well settled that a purchaser on a judicial sale.is entitled to a marketable title, that is a title free from reasonable doubt, and courts are not disposed to compel a purchaser to take title where a doubtful question of fact relating to an outstanding right is not concluded by the judgment under which the sale is made. Fleming v. Burnham, 100 N. Y., 1, and cases cited.

But the rule is not absolute that a disputable fact, not determined by the judgment, is in every case a bar to the enforcement of the sale. It depends in some degree on discretion. If the existence of the alleged fact which is supposed to cloud the title is a possibility merely, or the alleged outstanding right is a very improbable and remote contingency which, according to ordinary experience, has no probable basis, the court may, I suppose, compel the purchaser in such a case to complete his purchase. It is needless to say that the discretion is to be carefully and guardedly exercised, and only where the case is free from reasonable doubt.

We think the circumstances in this case point equivocally to the death of Robert Waite Armstrong long before the sale in partition, leaving no widow or children surviving, and that it is beyond reasonable doubt that his title passed by his death to his mother and his brother and sisters, and their descendants.

Judge Denio had occasion to consider a somewhat similar question in Matter of New York Protestant School (31 N. Y., 587-8), and Chancellor Kent in McComb v. Wright (5 Johns. Ch., 263), enforced specific performance of a contract for the sale of land on the presumption of death without issue of John Ogilvie, an absentee for “over forty years.”

On the whole we think the objection of the purchaser was untenable, and that according to the rules of equity applied in such cases, he ought not to have been released from his purchase.

The orders of the general and special terms should, therefore, be reversed and the proceedings dismissed.

All concur.  