Oakley v. Briggs — 44 N.Y. St. Rep. 397

Majority

p. 397

Thomas C. Oakley, App’lt, v. Charles A. Briggs et al., Def’ts. Henry C. Bauer, Purchaser, Resp’t.

(Supreme Court, General Term, First Department,

Filed February 18, 1892.)

Headnote

1. Judicial sale—Title—Defects.

While a purchaser at a judicial sale is entitled, to a marketable title, free from reasonable doubt, the defect in a title sought to be rejected must be substantial and not rest on a mere possibility or contingency.

.2. Same.

The mere fact that the map of a turnpike company included a portion of the premises in question does not furnish a valid reason for relieving a purchaser, where it does not appear who made the map or that it was of .■an official character, and it appears that the road was discontinued in 1810; that the attorney of the company disclaims any interest of the company in .said road; that the premises are enclosed and have been partitioned without reference to such road, and the city maps fail to show the existence of the road.

Appeal from an order of the special term, denying a motion to compel Henry 0. Bauer, the purchaser of property at a partition sale, to complete his purchase.

Sol. Kohn, for app’lt; Wm. H. B. Jay, for .purchaser, resp’t.

While it is well settled that a purchaser at a judicial sale is entitled to a marketable title and one that is free from reasonable doubt, it is also the rule that the defect in the title ■sought tó be rejected must be substantial, and not rest on a mere possibility or contingency. Cambrelleng v. Purton, 125 N. Y., 610 ; 36 St. Rep., 190 . The description of the property sold in this case, it is conceded by the statement of facts agreed upon by the parties, embraces about twenty feet of the old road, which the early deeds, forming part of the chain of title, refer to as the road or highway leading from Brooklyn Ferry to Jamaica, and by which the tract of land, of which the premises sold formed

p. 398

part, is bounded, easterly and northerly. It is also conceded that there is a house upon the front part of the premises sold, and that the yard or rear portion, embracing the road, is enclosed with a fence, and that there is no trace or vestige of a road in the block in which the premises are located, nor in the-"blocks in the vicinity thereof, but that said blocks appear upon the official maps of the city of Brooklyn as if such road did not exist, and the property is assessed by the public assessors, irrespective of any road. The objection of the purchaser rests upon the fact that his attorney, while searching the title to the premises, found on file in the register’s office a map of the Brooklyn & Jamaica Turnpike Company, and that on said map a portion of the premises described herein appeared to be and formed a part of the said road.

It does not appear by whom the map was made or filed, nor does it appear that it was authentic or had any official character. The affidavit in support of the motion shows that an' old road is-shown upon maps of the city of Brooklyn, but that according to-the best information that the affiant has been able to obtain, the road was discontinued prior to the year 1810, and that quit-claim-deeds have been obtained from the city oE Brooklyn to the heirs of David R. Briggs, being all the parties to the action of partition, and that the same have been tendered to the purchaser, who has-refused to complete and take title solely on the ground that the' rear part of the premises is a part of the old road leading from Brooklyn Ferry to Jamaica, and that the deceased never had title thereto.

It further appears that the attorney for the Brooklyn & Jamaica Turnpike Company disclaimed any interest on the part of said company to the said road, but refused either to put such disclaimer in writing or to procure a quit-claim from said company, and that upon said attorney consulting maps of the city of Brooklyn, in the presence of the moving parties’ attorney, it was-found that the alleged road was not part of the old Brooklyn & Jamaica Turnpike Company’s road, and that said road did not abut upon the premises in question, or form part thereof. Under these circumstances we are of the opinion that the objection of the purchaser to the title cannot be maintained.

Assuming that the land abutted upon the old road, the title-to the center of the road remained in the owners of the adjoining land, subject to the easement, and when the road ceased to boused the right to the. exclusive possession of the land vested in the abutting owners.

Inasmuch as in 1859 the tract including the land and road in question, was conveyed to William Stewart, whose executors: divided the same into lots and the conveyances by them made no mention of any road, but bounded the lots by street lines; and inasmuch as there is no pretense that the property has not been held by Stewart and his grantees exclusively and adversely from that time, we are of the opinion that the objection to the title of the heirs of Briggs is too shadowy and contingent-to justify the purchaser in refusing to complete his purchase. Post v. Bernheimer,

p. 399

31 Hun, 247 ; Ottinger v. Strasburger, 33 id., 469; Cambrelleng v. Purton, 125 N. Y., 610 , 611; 36 St. Rep., 190 .

The order below should be reversed, and the motion to compel the purchaser to complete should be granted, with costs and disbursements to the appellant.

Van Brunt, P. J., concurs.