Fuhr v. Cronin

HATCH, J. The real point presented in the present controversy is whether the deed which has been tendered by the defendants will convey to the plaintiff a marketable title. It is quite probable that the defendants have a good title to these premises by adverse possession, and may maintain their absolute right thereto whenever an attack is made upon such title. Assuming such, to be the fact, it is not conclusive of the question presented by this record. It is clear beyond controversy that the defendants have no paper title to the southwesterly triangular piece of lot 79, and it is not contended that they have any title to the northeasterly triangular piece of land in lot 97, for which the description in the defendant’s chain of title calls. They have paper title to the last-named piece, but they never had possession of the same, and have never claimed to be the owners of it. The deed which has been tendered by the defendants in fulfillment of their contract contains an entirely different description of the land from that contained in the contract and in the defendants’ chain of title. The case comes to rest, therefore, upon the fact as to whether the adverse possession which has b.een proven is sufficient to make the title marketable, for it is well settled that a title which is open to a reasonable doubt is not a marketable title. Simis v. McElroy, 12 App. Div. 434, 42 N. Y. Supp. 290. In order to make a title by adverse possession perfect,' the vendor must negative the possibility of any outstanding claim to the land by the heirs of a former owner, and to show that such title is not open to contingencies of remaindership, or infancy, or either. Simis v. McElroy, 160 N. Y. 156, 54 N. E. 674, 73 Am. St, Rep. 673. In the present case the only proof upon which to found a title by adverse possession is an uninterrupted occupancy for a period of 30 3rears. .This, within the doctrine of the above authority, is not sufficient. It is evident, therefore, that the plaintiff may be compelled to resort to paroi proof to defend such title; and under such circurn [539] stances, in the absence of any proof showing the nonexistence of persons who may attack the title, it will be regarded as unmarketable. McPherson v. Schade, 149 N. Y. 16, 43 N. E. 527. It appears by the present record that a person claiming to hold a gore of land upon another part of lot 79, under a deed which similarly described such land as in the defendants’ chain of title, was dispossessed of the same. Such fact was established by the judgment of dispossession. While this is not conclusive, it bears upon the marketability of the title. It is claimed by the defendants, however, that their paper title to the lot in question conveys the land embraced within the terms of the contract. This conclusion is arrived at by invoking the doctrine that courses and distances must yield to monuments upon the premises, either natural or artificial. Such rule is well settled under the general doctrine that what is most certain will control, and that which is least certain must yield. Yates v. Van De Bogert, 56 N. Y. 526. Difficulty confronts the defendants in bringing themselves within this rule of law, as there is no monument, either natural or artificial, upon the rear of the lot as described. The only thing that can be called a monument upon the rear of the lot is the lot line between lots 79 and 80. The northwesterly boundary of the piece of land sought to be conveyed, according to the description, does not carry the line indicated to the lot line between lots 79 and 80, nor is there any monument of any description at the termination of such line, either in its course or distance or otherwise. It extends directly into lot 97 in a northwesterly direction, and there is no monument or lot line at such point, or near it. Consequently, there is no monument which can furnish a certain location of the land intended to be conveyed. The lines as given neither reach the division line between lots 79 and 80 nor do they run along such line in its full course. There is, therefore, no certain boundary in the description which can make the courses and distances yield to fixed and known monuments; consequently the rule which is sought to be invoked has no application. It follows, therefore, that the defendants have not tendered a marketable title. The judgment should, therefore, be reversed, and a new trial granted, with costs to appellant to abide event. All concur.