56 N.Y.S. 615 | N.Y. App. Div. | 1899
On the 16th day of October, 1897, the plaintiffs made a contract to buy from the defendant certain premises situate in the city of Hew York, and to pay $1,000 upon the execution of the contract and the remainder of the purchase price at the time when the contract was-closed; and the plaintiffs paid to the defendant the $1,000. At the-time provided for in the agreement to close the transaction the par
The defendant, for a counterclaim, set up substantially that he had a perfect title; that he was ready to perform; that he offered a deed which conveyed a marketable title at the time when the contract by its terms was to have been closed, but that the plaintiffs refused to accept a deed, and declined to perform the agreement on their part. He alleged further that he was then ready to perform the contract, and he asked a judgment of the court for specific performance. Issue was joined to this counterclaim by a denial of the ability of the defendant to perform, and upon those issues the parties went to trial. As the result of the trial the court determined that the defendant’s title was good and marketable and free from all reasonable doubt, and dismissed the complaint and ordered a judgment for ■the defendant for the specific performance of the contract as prayed in the counterclaim, and from this judgment the plaintiffs appeal.
•It appeared from the testimony that the premises in question were situated on the north side of One Hundred and Thirteenth street, in the city of Hew York, between the Boulevard and Tenth avenue. It was, conceded that one Ely Moore, who was the original source from which the defendant claimed title, had been the owner of the premises. On the 16th day of Hovember, 1827, Ely Moore conveyed the premises to Thomas Shephard and William Shephard of the city of Hew York. On the 26th of Hovember, 1834, Thomas Shephard and his wife conveyed the premises to the Society of the Hew York Hospital, by which, on the 2d of May, 1889, the premises were conveyed to the defendant. There is no proof of any deed or transfer of title by William Shephard, the co-tenant of Thomas Shephard, or anything to show that his interest in the' premises was ever actually transferred either to the Society of the Hew York Hospital or to the defendant, and the plaintiffs claim that this apparent outstanding title in William Shephard in the undivided half of the premises constitutes such a defect as renders the title
It appears that the deed of Thomas Shephard to the Hew York Hospital was, in terms,, a conveyance to it of all the premises and not of his undivided interest. In addition, the deed contained a covenant of seizin on the part of Thomas Shephard, to the effect that he was seized of an absolute and indefeasible estate of inheritance in fee simple of all the premises, and a covenant of warranty on his part of the whole title. •
It is quite probable that this conveyance, had it been followed by such possession as the statute requires to constitute an adverse holding against one’s co-tenant, would have been sufficient to authorize the presumption that the Society of the Hew York Hospital had acquired good title to these premises. (Florence v. Hopkins, 46 N. Y. 182, 186.) But where a party claims that he is entitled to a specific performance of a contract, by which he agrees to convey lands to an other j he is bound to give a marketable title; one that is- free from any doubt that would interfere with the market value. (Moore v. Williams, 115 N. Y. 586.) Such a doubt always exists when, upon the proof, there is an uncertainty as to some fact necessary to sustain the title, which the judgment in the particular action will not establish against the party who is at liberty to assert the fact, so that, as the result of' the judgment, it will be conclusive against him. ( Vought v. Williams, 120 N. Y. 253.) To establish the fact that the title was marketable, thedef endant here Was bound to show, not only that there had been possession of the land for the required time, but that that possession had been of .such a nature as to ripen into a title, which should be good as against all the world. (Wilhelm v. Federgreen, 2 App. Div. 483; S. C. affd., 157 N. Y. 713.) The alleged adverse possession in this case arose under a written instrument. The statute provides that to constitute an adverse possession by a person claiming title under such an instrument, the land is deemed to have been posesssed and occupied, either where it has been usually cultivated or improved, or where it has been protected
But, upon the evidence shown here, no adverse possession against William Shephard or his heirs has been made to appear. Although one tenant in common grants to a third party , the joint premises by a deed conveying his whole interest and thereby enabling the grantee to lay the foundation for an adverse jiossession, yet the mere fact that the grantee takes possession under the deed is not of itself sufficient to begin an adverse possession such as will oust his co-tenant. Before that can be begun there must be notice in fact to the co-tenant that the adverse claim is made, or there must be such open and public acts by the adverse claimant as will make his possession so visible, hostile, exclusive and notorious that notice on the part of the co-tenant of the claim adverse to his right may fairly be pre
Van Brunt, B. J., Batteeson, O’Brien and Ingraham, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.