
    John H. Heller, Jr., et al., as Executors and Trustees under the Will of John H. Heller, Deceased, Plaintiffs, v. William Cohen, Defendant.
    (Supreme Court—New York Special Term,
    December, 1895.)
    1. Judicial sale — Referee cannot correct erroneous description.
    A referee appointed to sell real property has no power, without authority from the court, to correct an erroneous description óf the premises.
    2. Adverse.possession.
    . To establish title by adverse possession, it must be shown that the party and his grantors held the land adversely and in open hostility to the true owners.
    3. Vendor and purchaser—Title.-
    In an action to compel performance, by the purchaser of a contract for the sale of land it appeared that plaintiff claimed title through a salé on partition; 'that the original'deeds of the property described the premises as commencing at the northwest corner of Grand and First (or 'Chrystie) streets, which would place about four-fifths of the premises in Grand street, and that the referee, without authority-from the court, described them in his deed as. commencing at the southwest corner. It also appeared that about one foot of the western boundary, as described in the contract, was not covered by the deed, but the plaintiff claimed to hold the samé by adverse possession. Held, -that the record title was so defective that the purchaser should not be required to complete.
    Action for specific performance by the purchaser of a contract for the sale of land. •
    
      Bailey & Sullivan and Abram Stern, for plaintiffs.
    
      George H. Yeaman and Julius Lipman, for defendant.
   Davy, J.

The parties to this action entered into a contract for the sale and purchase of real estate located on the south side of Grand street, in the city of New York, by the terms of which the defendant was to pay therefor the sum of $100,000, of which sum $5,000 was paid at the time the contract was executed, and the balance was to be paid upon the delivery of the deed. When the deed was tendered the defendant refused to accept it on the ground that the .-title to the land was defective.

The principal issue, therefore, raised by the pleadings is, whether a marketable title has been tendered or not.

The lot is described as beginning on the south side of Grand street, at a point distant 75 feet 11% inches westerly from the corner formed by the intérsection of the southerly side of Grand street with the westerly side of Chrystie street, running thence southerly 125 feet 1 inch; thence westerly parallel, or nearly so, with Grand- street 25 feet 1 inch; thence northerly 125 feet 3 inches to the said southerly side of Grand street; thence easterly along said southerly side of Grand street 25 feet to tire point or place of -beginning, the premises hereby intended to. be conveyed being now known and designated as and by the street number 245 Grand street as now built upon and inclosed.

One of the principal objections raised to the title by the learned counsel for the defendant is, that in. all of the deeds from' 1810 down to 1867 the description of the lot commenced seventy-five feet from the northwest corner of Grand and First streets (now Chrystie) instead of beginning at the southwest corner of said streets.

It is conceded by the learned counsel for the plaintiff that the description of the land in the original deed is imperfect, and that it would locate about four-fifths of the land in question in Grand street. -But he contends that a correct description can be spelled out sufficiently to locate the premises. He also contends- that the errors and Imperfect description of the lot in the original deeds were corrected in 1867 by the referee who sold the premises in the partition action.

It is a rule well settled that every deed of conveyance in . order to transfer a title must either in terms, or by reference to other deeds, give such a description of the "land intended to.be conveyed as will be sufficient to. identify the same with reasonable, certainty.'

The description of the lot in the referee’s deed commenced at the southwest corner of Grand and Chiystie streets, instead, of the northwest corner. This change, however, so far as it appears from the record, was made without any authority from the court. The decree, which was the referee’s guide, directed ' him to sell and convey to the purchaser the land described in the petition, which commenced at the northwest conker of Grand and Chiystie streets.

The deed that was given by the referee purported to convey to plaintiffs’ testator the entire'interest of the cotenants in the land in controversy.. The serious objection to his de'ed is, that it did not include the land which the court had authorized him to sell and convey. Whatever the effect of. this conveyance may have been as to those who held title to the land, it certainly was not a good execution of the decree of sale.

I am inclined to think, that it was wholly inoperative ■ as to the premises in controversy. Scholle v. Scholle, 113 N. Y. 261.

1 It was held in Laverty v. Moore et al., 33 N. Y. 658, that a conveyance under a decree of foreclosure cannot pass the title to land not embraced in the decree, though included by mistake in the description. People ex rel. Day v. Bergen, 53 N. Y. 401.

Where the deed conveys other property than the parties intended, or is void-for únceitainty, a court of equity may reform it so that it may conform to the intention of the parties, hut a referee without' authority from the court has no power to correct an erroneous description.

In Cambrelleng v. Purton, 125 N. Y. 615, Judge O’Brien says that “ A purchaser will not. be compelled. to take title where a doubtful question of fact relating to an outstanding right is not concluded by the judgment, under wliich thp sale was made.” Fleming v. Burnham, 100 N. Y. 1.

The mere fact that plaintiffs’ testator took possession of the premises under the referee’s deed, and ^occupied the land for . twenty years and upwards, did not of itself establish an adverse possession. Neither did it amount to an ouster of the other cotenants, unless the possession was accompanied and followed by a hostile claim of title of which "all the cotenants had knowledge. Culver v. Rhodes, 87 N. Y. 353; Kneller v. Lang, 137 id. 589.

Where title is asserted adversely by a person claiming title-founded upon a written instrument, or a judgment or decree, it is a rule of universal application that the extent of the claim must be measured by the instrument under which the claim is made. Crary v. Goodman, 22 N. Y. 170.

There is another serious objection to the title, and that is, if the defendant is compelled to take a deed of the land embraced in the contract it will include nearly one foot of land of the western boundary to which the plaintiffs have shown no record title, for which the defendant is required by the terms of the contract to pay about $4,000.

The plaintiffs concede that the western wall is constructed a short distance west of the description contained in the referee’s deed. But they contend that' plaintiffs’ testator was in possession of this strip of land for more than twenty years and that no claim has been made to any portion of it.

Title by adverse ’ possession, where there is no disputed question of fact, and where the possession has been clear and undisturbed, may be upheld. This class of titles, however, are not looked upon with favor by trustees of savings banks and insurance companies who take mortgages on real estate as . security for the loan of money. In order to establish title by adverse possession it was incumbent upon the plaintiffs to show that the testator and his grantors held the land adversely and in open "hostility to the true owners. It is not sufficient to hold it by their assent or permission, but it must be held in open hostility to their claim of title. The cotenants and the owners of the adjoining lots on the west are not parties to this judicial controversy; therefore, they would- not be concluded by any judgment that may be rendered herein. " , .

Judge Andbbws, in Fleming v. Burnham, 100 N. Y. 10, says: “ A title open to a reasonable doubt is not a -marketable title. 'The court cannot make it such by passing upon an objection depending on a disputed question of fact, or a doubtful question of law, in the.absence of the party in whom "the outstanding right was vested.”

The plaintiffs’ title, therefore, to at least a portion lof the-premises, must rest.upon adverse possession, and whether all the statutory requirements have been sufficiently complied with to create a good title in .the plaintiffs can only be-déteiímined by evidence aliunde. There may have been infants interested in the property, who w,ere protected during the ¡period of their disability,, whose rights in the land have- not yet been, cut off. But, independent of the question of title by adverse possession,-it is a rule .of law that every conveyance should contain a sufficiently accurate description of the land and its boundaries so that it may be identified.' Where it is necessary-'to resort to parol evidence to supply the inaccuracies of the description.appearing on the face of the deed the record title must be regarded as seriously defective. ‘ - - .

While a deed may not be .'declared void for uncertainty as long as it is possible by any reasonable rules of construction-to ascertain from its context what property was intended to pass, -yet, if it is so defective and uncertain that the property cannot be located, its’ market value .must necessarily.be impaired. A close analysis of - the description of the land in the original deed will disclose the fact that the title is seriously defective. The description begins at a well-known point, which is capable of being ascertained, and runs thence by courses and distances around the lot and - ends at the’place .of beginning. The deed, therefore,, could not in this action be contradicted or explained by parol 'evidence, and no extrinsic evidence tending to explain the mistake or intention of the parties could he resorted to. ’ The northwest corner of Grand and Ohryst-ie streets being an established natural menument, the course and distances must yield to it. Yates v. Van, De Bogert, 56 N. Y. 526.

In the case last cited Judge Gbovee- says : It is well settled that that which is most certain must control and what is less certain must yield. Courses and distances must yield to monuments upon the premises, either natural or artificial.”

It was held in Drew v. Swift, 46 N. Y. 209, that where a description begins at a point capable of being ascertained, and runs thence by courses and distances well defined, that no-extrinsic evidence tending to explain the intention of the parties, ■ and thus give effect to the deed different from its terms, is allowable.

- The case of Brookman v. Kurzman, 94 N. Y. 274, cited by the learned counsel for the plaintiffs, is nqt controlling in this case, for the reason that it appeared upon the face of the deed that a mistake had been made in locating the starting point in describing the land intended to be conveyed. Chief Judge Rugkeb, who wrote the opinion of the court, says: “ It is impossible to mistake the location of the starting point of this description, which is thus not only twice correctly stated in the deed, but is also found to be in harmony with the location of all the monuments referred to therein as well ;as the remainder of the description.”

A bad title is defined in Bonvier’s Law Dictionary, volume 2, page Y32, to be one which conveys no property to the purchaser of an estate. A doubtful' title is one which the court does not consider to be so clear that it will enforce its acceptance by a purchaser, nor so defective as to declare it a bad title, but only subject to so much doubt that a purchaser ought not to be compelled to accept it. A marketable title is one which a court of equity considers to be so clear that it will enforce its acceptance by a purchaser.”

The question, therefore, in this case, is not whether the title is absolutely good or bad, but whether it is clear and free from reasonable doubt.

It is an established rule of law that a purchaser of real estate is entitled to a marketable' title free from liens, incumbrances and defects, in the title unless- he expressly stipulates to accept a different title.It has been repeatedly held that a marketable title is one that is free'from reasonable doubt.-. Any defect, therefore, in' the- title that affects the value of the land, or will inferiere with its sale, is not a. marketable title.

It was held- in Moore v. Williams, 115 N. Y. 586, that “ a purchaser is not bound to take -a title. which he can defend only by a resort to parol evidence which time, death or some other casualty may place beyond his réach.”-/. .

“ That a good title means not merely a title valid in form, but a marketable title which could again be sold to a, reason- , able purchaser, or mortgaged to a person of' reasonable' prudence as security for a loan of money.” Ferry v. Sampson, 112 N. Y. 415.

. In Irving v. Campbell, 121 N. Y. 354, Chief Judge Ruger says: “A purchaser will not be compelled to take a title, .where there is a -defect in the record title which can be -cured-.only by resorting to parol evidence.” Vought v. Williams, 120 N. Y. 253.

The reasoning of .the learned judge wlid Wrote the opinion of. the court in Brooklyn Park Commissioners v. Armstrong, 45 N. Y. 248, was . to the effect that, when dt is ascertained, that there is an existing defect in -the title;, the purchase).’-will not be compelled to perform-on the allegation that it is doubtful whether the defect will ever incommode him.”

In the case of Methodist Episcopal Church Home v. Thompson, 108 N. Y. 618, Judge Peckham, in expressing the views of the court, says: “We think if there were a reasonable doubt as to the vendor’s tifie such as to' affect the .value of the property, and to interfere with the' sale of the' land tó a reasonable purchaser, the -plaintiff’s cause of action would be sustained.” . -

The vast amount of documentary evidence. introduced, by the plaintiffs is conflicting and contra„dictory as to the location and description of the premises. If a decree for- the specific performance of a contract relating to real estate is to possess' any value, the 'record should describe the land involved with such accuracy and clearness that it can be identified, its quantity known and its boundaries determined beyond the possibility of future controversy.

In Jeffries v. Jeffries, 117 Mass. 184, the court held that “ a' defendant in proceedings for specific, performance shall not to be compelled to accept a title in the least degree doubtful; * * * he ought not to be subjected, against his agreement or consent, to the necessity of litigation to remove even that which is only a cloud upon his title.”.

. The record title to the land in question is so defective that it would, in my opinion, be very doubtful whether the trustees of any sayings bank or insurance company, acting with reasonable prudence and caution, would take a mortgage thereon as security for the loan of money. (Treat injustice, therefore, might be done to the defendant if he were compelled to fulfill the contract and to take a deed of the premises.

Judgment, therefore, may be entered dismissing the complaint, and for $5,000, with interest thereon, from the 1st day of February, 1893, together with the costs of this action.

Ordered accordingly.  