Jay v. Wilson , 98 N.Y. Sup. Ct. 391 ( 1895 )

VAN BRUNT, P. J.

I concur in the conclusion arrived at by Mr. Justice O’BRIEN that the contract under consideration in this action did not confer upon the plaintiffs the right arbitrarily and capriciously to refuse to be satisfied with the title which was tendered, but that there must be some reason upon which dissatisfaction is founded; but I do not concur in the conclusion that there was any difficulty with the title which was offered under the contract referred to. I think that, in arriving at this conclusion, the learned justice has misconceived the rule applicable to the question of marketable titles. • It is undoubtedly the law, as stated in Irving v. Campbell, 321 N. Y. 353, 24 N. E. 821, and cited by him, that a purchaser is not bound to take a title which he can defend only by a resort to parol evidence, which time, death, or some other casualty may place beyond his reach; and that a purchaser will not, generally, be compelled to take a title when there is a defect in the record title which can be cured only by á resort to parol evidence. But in the case at bar there is no defect in the record title. It is complete. The purchaser would not be compelled to resort to parol evidence for the purpose of defending his title. The sole ground upon which it is claimed that the title is not marketable is the fact that, subsequent to the record of the deed of a purchaser in good faith, there appears from his grantor a deed of a previous date upon the record. This subsequent deed casts no cloud upon the title of the purchaser. His record title is superior, and there is not a tittle of evidence impeaching that record title.

But it is claimed upon the part of the respondents that, if the grantee of the subsequent deed should show that the purchaser, who paid his money for the property, knew of the existence of this deed, or was in possession of the property, the title would be impeached. There is not the slightest attempt to prove that the grantee in that deed ever was in possession, or that the first purchaser had any reason to suspect the existence of any such deed. If such a procedure is to place a cloud upon title, then no purchaser is secure, because his grantor, after he has conveyed, and his grantee’s deed is placed on record, may sign and acknowledge a new deed, dated back of the deed by which he has conveyed the property, and record it, and there is a cloud upon the title. The validity of titles cannot be subject to any such schemes or devices. The record title in the case at bar was good. It required no parol evidence to sustain it, and hence, according to the authority cited, the title was a marketable one.

The judgment appealed from should be reversed, and a new trial ordered, with costs to the appellant to abide the event.

PARKER, J., concurs.