63 N.Y. 132 | NY | 1875
The plaintiff's claim for relief in this action is based substantially upon a contract for the sale of real estate now owned by him, executed by persons purporting to act as the attorneys of the then owner who was the plaintiff's grantor, and recorded in the county clerk's office, which contract it is alleged is an apparent cloud upon plaintiff's title to said land for the reason that the persons claiming to act in the capacity of attorneys were utterly unauthorized by the owner, and the instrument is not in fact his act and contract. There is no apparent authority in the instrument itself, and the right to act, or want of authority, must depend upon evidence which is outside of the same. The question then arises *134
whether, upon the facts stated, an action can be maintained by the plaintiff and a judgment obtained for the surrender and canceling of the instrument in question as a cloud upon the plaintiff's title. The reports are full of cases where the question is discussed as to what constitutes a cloud upon title, and the circumstances under which a court of equity will interpose its power to grant relief against the alleged cloud. Without reviewing the authorities it is sufficient to say that the subject is considered in a very recent decision in this court. (Marsh v. The City of Brooklyn,
It is entirely plain that the agreement presents no case within the rule cited where the alleged defect can be made to appear by extrinsic evidence, which will not be necessarily shown in proceedings by the claimant to enforce the lien. On the contrary, the evidence introduced to show the authority will and must appear when the claimant undertakes to establish his case. He would not make out a cause of action without proof of authority of the attorneys, and in attempting to show this, the alleged want of authority will be manifest. If authority is shown, then clearly there is no cloud. If there is a failure to show it, then there is no cloud. So that in either contingency no cloud exists. It is scarcely more than necessary to state the fact that the persons claiming to act as attorneys would be bound to show authority as such, to demonstrate that there can be no cloud upon the plaintiff's title. In any effort to sustain a right under the *136 contract, the alleged defect would be plainly apparent. It would appear in any proceedings of the party claiming under it to establish his right, thus making out a case directly within the rule cited.
From these remarks it follows that there was no cloud upon plaintiff's title, created by the instrument referred to, and that the action brought must fail. The court was in error in refusing the motion to dismiss the complaint, and in holding that the plaintiff was entitled to judgment.
The judgment must, therefore, be reversed and a new trial granted, with costs to abide the event.
All concur.
Judgment reversed.