
    Julius Goldman, Resp’t, v. John Banta, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 29, 1890.)
    
    "Vendor and purchaser—Title—^Presumption as to issue oe execution.
    The-title to premises contracted to be sold by defendant came through a sheriff's deed, but no execution could be found. It was shown, however, that subsequent to such sale the defendant in the execution identified before a commissioner of deeds the grantor in a deed conveying a portion of the premises claimed to have been sold thereunder, and that no claim had been made to the premises by the defendant in the execution or his representatives for more than forty years. Held, that from such facts the presumption necessarily arises that an execution was issued and a sale had thereunder, and that a title was made out free from reasonable doubt.
    Appeal from judgment entered upon the decision of the court without a jury. ■
    
      J. A. Marpes, for app’lt; J. A. Koons, for resp’t.
   Van Brunt, P. J.

This action was brought to foreclose a-lien for money advanced on the purchase price of land and also to recover the expenses of searching title.

In March, 1880, the defendant contracted to sell to the plaintiff a certain plot of land and to give an unencumbered title to the premises by full covenant and warranty deed subject ondjr to a party wall agreement; $1,000 was paid at the time of the signing of the contract; and upon examination the plaintiff," having ascertained the fact that the title of a portion of the premises came through a sheriff’s deed and no execution having been found, brought this action to recover the amount paid and the expenses of searching the title.

The question as to the validity of this title was before this court in the case of Goldman v. Kennedy, 49 Hun, 157; 17 N. Y. State Rep., 488. That case was decided upon an agreed statement of facts. It" was contended that the recitals in the sheriff’s deed, and in a certificate of sale, raised a presumption that an execution had been issued, and it was there held that these recitals could have no such- effect, particularly as the statute provided what the certificate should contain, and that such certificate should be received as presumptive evidence of the facts therein contained. The statute having thus defined as to what extent the certificate could be presumptive evidence it seemed clear that it could not be claimed to be presumptive evidence, of assumed factss tated therein, which had no warrant in the statute to be so included, and it was held that this being the sole proof there was not sufficient evidence of the issuing of the execution. That case differed from the case of Leland v. Cameron, 31 N. Y., 115, in that in the latter there was extrensio evidence of the issuance of the execution.

In the proof in the case at bar extrinsic evidence that the execution must have been issued and a sale had thereunder was also presented in the fact that the defendant in the execution identified before a commissioner of deeds the grantor in a deed conveying a portion of the premises claimed to have been sold under this execution. ‘The defendant in the execution thus knew that others were dealing with the title to this property of which he had been the owner, and of which it is claimed he was divested by a sale under an execution, and assented thereto, showing that he supposed that his title to the premises had been extinguished.

This proof is proof of record, and not contradicted. It further appears that for over forty years no claim whatever has been made by the defendant in the execution or his representatives to this property; and in view of this circumstance we think that there was sufficient evidence to show that the defendant in the execution believed his title had been extinguished by a sale under an execution, and that the purchasers at such sale acquired title thereto, from which the presumption necessarily arises that an execution was issued and a sale had thereunder.

We think, therefore, in view of the additional facts presented to the court, that a title has been made out which is free from reasonable doubt.

The judgment should be reversed and a new trial ordered, with costs to appellants to abide event.

Daniels and Brady, JJ., concur.  