132 N.Y.S. 1026 | N.Y. App. Div. | 1911
This controversy comes before us upon an agreed case submitted under the provisions of the Code of Civil Procedure (§§ 1279-1281), and involves the question as to the marketability of the title to a lot of land in the city of New York.' By a written contract plaintiff agreed to sell and defendant agreed
“Eighteen years ago Matthew Tighe’s eldest married daughter and son-in-law went to Denver, Colorado, in an effort to locate the father. They advertised in the newspapers and sought for traces of him, but were entirely unsuccessful.
“ The further facts are that Tighe had lived with the family for about a year or so preceding his last departure. His prior absence had been occasioned by his mining interests also out West. He had been mining and speculating in the West for about a year or so before he left his home the last time. Prior to the commencement of his mining operations, he was mak
“ In 1909, the plaintiff made various inquiries of the Chief of Police and Postmaster of. Denver, Colorado, and of the Board of Health, Postmaster and Chief of Police at St. Louis, ■ Mo., as to the address, existence or death of Matthew Tighe, but was unable to locate him or obtain any evidence of his present existence or death.”
We have so recently had occasion to consider at' some length the rules as to the presumption of death arising from long-continued and unexplained absence (Matter of Wagener, 143 App. Div. 286) that it is .unnecessary to indulge- in a rediscussion of the general subject. There is no hard and fast rule which can be applied to every case, for each must stand in a measure upon its own facts. The rule is not absolute that any disputable fact, supposed to cloud a title, will serve in every case to bar the enforcement of a contract to purchase real estate. If the existence of the alleged fact is a possibility only, or the alleged outstanding right is a very improbable and remote contingency, the court may, in its discretion, compel a purchaser to accept the title. (Ferry v. Sampson, 112 N. Y. 415.)
In the present case we cannot but deem the contingency that Matthew Tighe remains alive as a most remote and improbable-one. He has been absent for about twenty-five years, and if he were living now would be upwards of seventy-two years old. His relations with his family were such that there is no apparent reason why he should have voluntarily refrained from communicating with them during all these years, especially as he did so communicate during the -first few years of his absence. Furthermore, the business upon which he went west was, twenty-five years ago, not wholly free from personal peril. Oh the whole, we think that the defendant’s objections to the title are untenable and that she should com
Our conclusion is that there must be judgment for the plaintiff as prayed for in the submission,- with costs.
Ingraham, P. J., Miller and Dowling, JJ., concurred; Laughlin, J., dissented.
Judgment for plaintiff, with costs. Order to be settled on notice.