
    IN THE MATTER OF THE APPLICATION OF GEORGE N. LADUE, et al., FOR LEAVE TO SELL REAL ESTATE OF INFANTS.
    
      Specific performance—Title must be marketable—Definition of marketable title—Premises bounded by land intended for road—Title to said intended road.
    
    Before Sedgwick, Ch J., Truax and Dugro, JJ.
    
      Decided March 14, 1887.
    Appeal from order denying motion to compel purchaser to complete contract.
    The facts appear from the following opinion delivered at Special Term :
    Ingraham, J.—“ The agreement sought to be enforced provides that the contract for the sale of the premises should not be binding, unless good and sufficient deeds conveying and assuring the parties of the second part the fee simple of the entire property free from all .encumbrances, should be tendered to the purchaser.
    
      “ The purchasers oppose the motion on the ground that such a deed was • not tendered, and that the petitioner has not a good title to a portion of the premises. No objection is made as to the form of this application, nor is the question raised that the relief asked cannot be granted by motion, or that an action should have been commenced for that purpose.
    “ The rule is now settled that a purchaser of real estate will not be compelled to specifically perform when the vendor has failed to show that he had a marketable title ; that as a general rule a title which is open to judicial doubt is not a marketable title, and if, after the vendor has produced all the proofs that he can, a rational doubt remains, the title is not marketable. Shriver v. Shriver, 86 N. Y. 584. _
    _ “ One of the objections taken by the purchasers is that the vendors have failed to show that they have a good title to the northern half of a road which constitutes a portion of the premises in question. It appears that one Samuel Stilwell was the owner of a large tract of land which included the property in question; by a deed dated December 1, 1795, he conveyed a portion of the property to Samuel S. Bowne, by a description which begins at the northeast corner of a meadow, and runs thence by various courses and distances along the land of the said Stilwell intended for a road two rods in width, and thence by various other courses and distances to the place of beginning * according to a survey of the same by Cassimer Th. G-oerck, City Surveyor, bearing date the 5th day of December, one thousand seven hundred and ninety-five, containing altogether thirteen acres three roods and twenty-two and one half perches of land, bounded on the south on the land of said Stilwell intended for a road of two rods in width, on the east of the lands of Stilwell, westerly and northerly on the lands of said Stilwell and Robert L. Bowne, as will appear by the aforesaid map.’ The said deed also contained a covenant on the part of the said Stilwell, that the road of two rods in width as aforesaid, to run along and adjoin the southerly and westerly side of the premises hereinbefore granted to Bowne according to the aforesaid survey or map, shall be -laid out accordingly and run from Bloomingdale road within one year from the date thereof, and ever kept open from that time. No survey has been produced bearing the date mentioned in the deed, but a survey is on file in the office of the Register of the city of New York, dated January, 1796, and which may be assumed to be the survey described in the deed. The road of two rods wide is a portion of the premises in question, and the petitioners claim title to the northerly one half of the said road through Bowne, the grantee in the deed before mentioned, so that if the fee of the northerly one half of the said road was not conveyed by the said conveyance, on the paper before me the petitioners cannot give a good title to the property.
    
      “ In Bissell v. N. Y. Central R. R. Co., 23 N. Y. 63, the vendor being the owner of certain lands, caused a plan to be made in which he laid out a street by the name of Erie street and sold the lots on each side of the street by%such survey. It was held that such vendor intended to convey the lands upon the street, and there was no evidence of liis intention to reserve the fee of the street; that the conveyance thereof carried the fee to the center of the street. In the case of Mott v. Mott, 68 N. Y. 254, the property as granted, bounded on a lane. The court, after stating the rule to be that when lands are granted bounded upon a highway, the fee of one half the highway will be conveyed unless by the terms of the grant or by necessary implication the highway or bed of the street is excluded ; held, that the grant when read in the light of the circumstances of the parties and the locality, goes far to control and limit the effect, which but for it, might be given to the description of the land granted, and that under the circumstances in that case the fee of the land did not pass by the grant.
    
      “ I think applying the principles laid down in the case of Mott v. Mott, supra, to the case at bar, it must be held that no part of the fee of the strip of land intended for a street was conveyed by the deed to Bowhe. At the time of the conveyance there was no road in existence. The property is not bounded by a road but by a strip of land belonging to Stilwell, intended for a roach It is true that on the plan by which the property was sold a road appears, still, by the express terms of the deed, no road was then in existence. The description runs along the strip of land intended for a road, and is bounded by such strip, and Stilwell covenants not that the strip of land is now a road, but that the road to run along and adjoin the southerly and westerly side of the premises shall be laid out accordingly within one year from date and forever kept open from that time. If the fee of the road passed to the grantee, that covenant would be unnecessary, and except with his consent it would be impossible for Stilwell to perform it.
    “ In Mott v. Mott, supra, the use of the lane was granted to the grantee, and Allen, J., says at page 254: The grantee did not reserve the use of the lane, as would be proper had the fee of it been granted, but granted the use as the owner of the-fee might well do ; thus in terms granting two things : the fee of the land on the north side of the lane, and an easement in the lane itself.’
    
      “ The implication from the grant that the fee was not intended to pass is much stronger in the case at bar, for here the grantor covenants to do an affirmative act to the strip of land intended for a road, viz., to lay out the road, and then covenants that such road shall forever be kept open.
    “ I think, therefore, the proper meaning of the description was intended to run along the side of the road, and that no part of the fee of said strip of land passed by the conveyance. The distinction between the case of Bissel v. N. Y. Central R. R. Co. and the case at bails apparent. That case was decided on the ground that there was no evidence to show that it was not the intention of the grantor to convey the fee of the street, while in this case such intention appears.
    “ I have not considered the evidence contained in the other deeds of said Stilwell conveying the adjacent premises, but if they were legitimate evidence they ivould strengthen the implication.
    “ I. think, therefore, plaintiff’s title was not a marketable title. As was said in Mott v. Mott, supra, it is not at all probable that the present occupants will ever be disturbed in their possession and use of the land, but the fact remains that the title is not perfect and may not be marketable, and is not therefore such a title as a purchaser at a judicial sale may be compelled to take.
    
      
      “ It is not necessary to consider the other serious objections to the title taken by the purchaser, and for the reason above stated the motion must be denied, with ten dollars costs.”
    
      Charles Dickenson and William Pierpont Williams, for appellants.
    
      Edmund Coffin and William L. Snyder, for respondents.
   Per Curiam.

Order affirmed, with costs, on opinion of court below.  