Kullman v. Cox

McLaughlin, J.:

On the 23d day of April, 1885, Anna Kullman died intestate, leaving a husband, this plaintiff, and their four children, all minors, the oldest born in 1866 and the youngest in 1875. At the time of her death she was the owner of the premises described in the complaint, subject to a purchase-money mortgage given to and held by one Hupfel, to secure the payment of $3,600 on the 1st day of January, 1889, together with interest thereon which was payable semi-annually. The mortgage contained a provision that in case default should be made in the payment of the interest, and such default continued for a period of thirty days, then the principal sum should become due and payable at the option of the mortgagee. Tire interest due July 1,1885, was not paid, and it having remained unpaid for more than sixty days Hu piel declared the whole amount due, and instituted an action to foreclose. The action was prosecuted to and resulted in a judgment directing a sale and providing “ that either or any of the parties to the action ” might become purchasers thereat. Under this judgment the premises were sold in January, 1886, purchased by Hupfel for $4,000, and -he held the sainé until February following, when he conveyed to the plaintiff for the same consideration, taking back a purchase-money mortgage for $3,800. The plaintiff has since held the title to, and during all of the time mentioned has resided upon, the premises. In Hovem-' her, 1896, the defendant contracted to purchase, but thereafter refused to perform upon the ground that plaintiff’s title was not marketable. This action was then brought to compel defendant to carry out his agreement.'

The trial court, upon these facts, which are undisputed, held as a conclusion of law that the foreclosure of the mortgage, by reason of 'the plaintiff’s default in the payment of the interest due thereon, and the conveyance of the property to him while holding the relationship of guardian in socage of his minor children, did not vest in him a title free from reasonable doubt, “ nor one that may not be successfully impeached by his children.” From the judgment thus entered the plaintiff appealed.

Ho defect is claimed to exist in the foreclosure proceedings or in plaintiff’s record title, and no evidence was given upon the trial, beyond that disclosed by,the records, to show that the foreclosure and sale was brought about by the plaintiff to deprive the infants of their interest in the property. There is riot a single fact disclosed by the record as it comes to us which indicates that the plaintiff, in all he did, leading up to and in acquiring the title to this property, did not act in good faith. There is absolutely no evidence of a dishonest intent on his part, and there is nothing from which it can be. inferred. A title, therefore, which is thus supported by a perfect record is presumed to be a good and valid one, and that presumption continues'until facts extrinsic of the record are established which are so inconsistent with or repugnant to the record that they, are permitted to supersede it. A purchaser is of course entitled to a marketable title, and it has been held that the title need not in fact be bad in order to relieve one from his purchase ; “ but it miist either be defective in fact or so clouded by apparent defects, either in the record or by proof outside of the record, that prudent men, knowing the facts, would hesitate to take it.” (Greenblatt v. Hermann, 144 N. Y. 13; Fleming v. Burnham, 100 id. 1; Moore v. Williams, 115 id. 586.)

Hupfel had a right to foreclose his mortgage, and, under the judgment, to become a purchaser at the sale. He acquired good title by virtue of the sale, and this he transferred to the plaintiff. The plaintiff, therefore, in the absence of proof that- he acted in bad faith, or to; the prejudice of his wards, must be deemed to have acquired a maiketable title. The most that can be said against his title-is that there is a bare possibility that the infants were deprived of their interest in the property by some wrongful act of his or by a conspiracy entered into between him and Hupfel. The defendant, however, has either not been able or has not seen fit to make any proof upon that subject, but instead has left it to mere conjecture or speculation and without a single fact to support such a hypothesis. A mere possibility of this character is riot sufficient to raise a reasonable doubt as to the validity of a title good upon the record.

W e think the learned trial court erred in dismissing the complaint, and for this error the judgment must be reversed and a new trial granted, with costs to the appellant to.abide the event.

Van Brunt, P. J., Patterson and Ingraham, JJ., concurred; O’Brien, J., dissented.