76 N.Y.S. 743 | N.Y. App. Div. | 1902
By the submission it appears that the plaintiff contracted to sell and convey to the defendant a certain piece of real property for and in consideration of the sum of $45,000, to be paid in manner specified in the contract of sale. At the time of the execution of the contract the defendant paid to the plaintiff the sum of $5,000 on account of the purchase price. Thereafter, and on April 1, 1902, pursuant to the contract, the plaintiff tendered a deed of the premises to the defendant, which deed purported to convey to the latter a title in fee simple of the premises. The conveyance so tendered was in all respects in compliance with the contract so far as the covenants and form of the same were concerned. The defendant refused to accept the deed at the time of the tender, claiming that the plaintiff’s title to the land conveyed was defective, and, therefore, unmarketable, and the defendant demands that judgment be rendered in his favor and against the plaintiff for the sum of $5,000 paid as aforesaid, together with interest thereon, and also a further sum of $200 expenses incurred by him in the examination of the title to said premises.
In the present ease, however, the plaintiff and his predecessors in the title have been in actual possession under a claim of title thereto for a period of nearly fifty-four years. They have built upon the disputed strip a substantial building, and during the whole period no person has made any claim or pretense of having title to or interest in the premises in question, nor is it shown that there is any person or persons in existence who, as against the plaintiff, could have made any claim of title. Where the period of occupancy has extended over half a century and during that time there has been peaceable enjoyment with no claim, adverse to the title, asserted against such possession, a case is presented where the contingency of the title ever being attacked is so remote as to be a matter of pure speculation and conjecture. A case of adverse possession less strong has been held by this court not to raise a question of reasonable doubt adverse to the title. (Weil v. Radley, 31 App. Div. 25; affd. on appeal, 163 N. Y. 582.) We are of opinion, therefore, that this title is not open to a reasonable doubt, and is, therefore, a marketable title. It follows that judgment should be ordered in favor of the plaintiff and against the defendant for a specific performance of the contract of sale, with costs to the plaintiff.
Patterson, O’Brien, McLaughlin and Laughlin, JJ., concurred.
Judgment ordered for plaintiff, with costs.