
    Smith Williamson, as Executor, etc., Pl'ff, v. Jessie T. Banning, Def’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed April 11, 1895.)
    
    Vendor and purchaser—Title.
    Where the vendor has no record title, cannot establish by secondary evidence the execution and delivery of a deed to a former grantor and is unable to prove that actual possession of the property was ever taken by or under the said grantor, the title he offers to the vendee is not marketable.
    Controversy submitted without action on an agreed statement of facts.
    
      James C. De La Mare, for pl’ff; William Langdon, for def’t.
   Parker, J.

It may be possible that facts exist which would establish a marketable title in the plaintiff, but they are not stated in this record. Plaintiff claims through one James H. Halloclc, and, to show title in him, is able to produce only a record of a paper purporting to be a deed to him by James Rutherford, dated May 8, 1854, and recorded in the clerk’s office of the county of Westchester May 17, 1854. The record of such instrument purports to have been acknowledged by the grantor before a commissioner of deeds for the state of New York, in Philadelphia, state of Pennsylvania; but there is no certificate recorded therewith under the hand and seal of the secretary of state of the state of New York certifying that the person taking such acknowledgement was a commissioner of deeds of the state of New York, as required by statute, in order to entitle a deed “to be used, recorded or read in evidence.” The agreed statement of facts concedes that it cannot be shown outside of the record that the deed was actually executed, acknowledged, and delivered. The deed cannot be found, and it admitted that no living witness can now be produced who took part in its execution, or who can state of his own knowledge any facts concerning it. Nor does it appear that Halloclc took possession under such instrument. On the contrary, it is stipulated “that there is no evidence now known to the parties to this submission that John Halloclc ever took actual possession of the said premises under or after the said deed of conveyance last above described.” Summarized, the situation is as follows: The plaintiff has no record title, cannot establish by secondary evidence the execution and delivery of a deed tti-Hallock, and is unable to prove that actual possession of the property was ever taken by or under Hallock prior to August, 1886. The title which he offers to the defendant is not therefore marketable.

Judgment is ordered that the defendant be released from the contract, and that the plaintiff pay to her the $500 advanced on account of the purchase price, with interest from November 26, 1894, together with the sum of $100 for expenses incurred in examining title, with costs.

All concur.  