
    Richard S. Wanser, Respondent, v. John De Nyse and Others, Defendants. Franklin S. Holmes, Appellant.
    Second Department,
    January 11, 1907.
    Beal property — partition — when title marketable — motion — service of affidavits.
    When á purchaser on partition contends that the title is not marketable because it does not affirmati vely appear that all the heirs of the owner, who died intestate in 1844, quitclaimed the premises and does riot show that there are any persons in being who might have-rights in the premises, and it appears that in I860 thirty-nine quitclaim deeds of the premises were given and recorded and ■ that the owners have been in possession thereunder'since that date, the title is marketable. . "
    Although it is the better practice for the respondent to submit all his affidavits to the opposing party in advance of an argument of a" motion, such submission is no,t required in the second district by General Rule 21.'
    Appeal by Franklin S. Hobbes from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk óf the county of Kings on the 13'th day of August, 1906, compelling, the appellant to complete his purchase of certain premises sold under an interlocutory decree, and also from an order entered in said cl.erk’s office on the 12th day of September, 1906, denying a motion to resettle said first above-mentioned order.,
    
      A. P. Bachman [John Oscar Ball with him on the brief], for the appellant.
    
      Washington Sackmann [Edmund C. Viemeister with him on the brief], for the respondent.
   Woodward, J.:

This action was brought to' partition certain .premises in the borough of Brooklyn, and, "under the Interlocutory decree, the premises were sold by the referee appointed for that purpose to Franklin S. Holmes, who paid ten per cent of the purchase pricey and Undertook to complete the purchase on a given date." Failing to complete the purchase, a motion was made to compel the purchaser to fulfill his contract, and' from the order directing the same, and from an order denying a motion1 of resettlement, this appeal is taken by the purchaser.

The purchaser upon this appeal insists that he is willing to complete his purchase, but urges that the title offered is not merchantable, inasmuch as upon a search of the records it appears that the premises were owned by one Francis Oliver, a colored man, who died intestate and seized of the same about the year 1844; and while the record shows that subsequently, and. in 1865 and 1866, thirty-nine quitclaim and bargain-and^sale deeds of the premises were recorded in Kings county, it does not affirmatively appear that all of the heirs at law of the said Francis Oliver were included in-these title deeds. The purchaser does not attempt to show by affidavit or otherwise that there are any persons in being who might assert rights to the premises, and it appears that the premises have been held and cultivated by those from whom the present title is derived, without question, since the year 1865, and it is difficult to understand how the.purchaser can hope to be relieved of his purchase under such circumstances. It appears on the other hand by affidavits that there was an intelligently directed effort on the part of an attorney in the years 1865 and 1866 to secure a good title to the premises from the heirs of Francis Oliver, and that the premises have since been held and cultivated under that title, and in the absence of some fact tending to show that the rights of all the heirs have not been extinguished, we are unable to discover the existence of such a doubt as to entitle the purchaser to any relief from his contract.

It is probably true that it would have been the better practice for the respondent to have submitted all of his affidavits to the opposing attorney in advance of the argument of the motion, but we do not find that Rule 21 of the General Rules of Practice requires this in this district, and it does not appear to us very important, in view of the fact’that the purchaser has not attempted to show any reason why he should not complete his purchase. The rule is that if a defect is patent in the record of title, the purchaser may rest thereon; ótherwise he must give .evidence in justification of his refusal. (Title Guarantee & Trust Co. v. Fallon, 101 App. Div. 187, 189.) Here there is no defect patent in the record title; there is a mere possibility that all of the heirs at law may not have been found and dealt with in the effort to get a good title back in 1865., and .this, ■ it seems to us, is too remote to found a reasonable justification upon for refusing to complete the purchase. (See Empire Realty Corporation v. Sayre, 107 App. Div. 415, 418.) The orders appealed from should be affirmed, with costs.

Hikschberg, P. J., Jenks, Rich and Miller, JJ., concurred.

Orders affirmed, with ten dollars costs and disbursements.  