McPherson v. Schade

• Citation: 43 N.E. 527,149 N.Y. 16
• Parties: McPHERSON v. SCHADE.
• Decision Date: 07 April 1896
• Court: New York Court of Appeals

149 N.Y. 16

43 N.E. 527

McPHERSON

v.SCHADE.

Court of Appeals of New York.

April 7, 1896.

Appeal from superior court of New York city, general term.

Action by John B. McPherson against Herman W. Schade. From a judgment of the general term (28 N. Y. Supp. 659) affirming a judgment for defendant, plaintiff appeals. Affirmed.

SPECIFIC PERFORMANCE-MARKETABLE TITLE.

It is not error to refuse, at the instance of the vendor, specific performance of a contract to purchase land, where it appears that the building upon the premises encroached upon adjoining lands, the title of the vendor to which rested in parol, being by adverse possession, the evidence to support which was conflicting, and also that a portion of the land to be conveyed had been used by the vendor in common with others as an alleyway for 20 years. 28 N. Y. Supp. 659, affirmed.

Isaac H. Maynard, for appellant.

Jacob F. Miller, for respondent.

MARTIN, J.

This action was brought to compel the specific performance of a contract for the sale of real estate, made between the parties August 8, 1893. By the contract the plaintiff agreed to sell and convey to the defendant premises which were described therein as follows: ‘Number nineteen Cornelia street, in the said city of New York, situate, lying, and being in the Ninth ward in said city, and known on a map or chart made by Charles H. Goerck, late city surveyor, of land formerly belonging to Doctor Gardner Jones, by ‘lot number fifty-one,’ bounded southerly in front by Cornelia street, northerly in the rear by lot number thirty, westerly by lot number fifty, and easterly by lot number fifty-two, containing in breadth in front and rear twenty-five feet, in length on each side ninety-five feet.' The defendant agreed to pay therefor the sum of $25,500 as follows: $1,000 on the execution of the contract, $7,000 by taking the premises subject to a mortgage for that amount, $8,000 by executing to the plaintiff a bond and mortgage thereon for that sum, and $9,500 in cash on the delivery of the deed. The time fixed for the performance of the contract was October 10, 1893, but it was extended by agreement until the 17th of the same month. At the time to which the performance of the contract was postponed, the plaintiff tendered to the defendant a deed in proper form, demanded the execution of the bond, and mortgage and payment provided for in the contract, but the defendant refused to accept the deed, give the mortgage, or make the payment upon the ground that the plaintiff could not convey to him a good and marketable title to all the premises covered by the building thereon. The extension of the time for the performance of the contract was occasioned by the defendant's objections to the title, and was to enable the plaintiff to remove them.

The evidence in the record tends to show: (1) That the map referred to in the contract was not filed in the register's office, where records of title are kept; that no record of such map or chart, or any reference to it, could be found in that office; that no description of the property was contained in the record except the deeds of the plaintiff's grantors, remote and immediate, in some of which the property was referred to as No. 17, and in others as No. 19, Cornelia street. (2) That the building erected upon the premises encroaches upon the adjoining property, and also covers a strip of land 5 feet in width and 25 feet in length, which had been used for more than 30 years by the owners of the adjoining premises as an alley way; and that the plaintiff conceded such encroachments, and offered to deduct a thousand dollars from the purchase price if the defendant would waive his objections to the title. The plaintiff proved that the premises had been in the possession of his mother for more than 35 years prior to the time he acquired the title, and his evidence tended to show that the premises covered by the present building had been occupied by him and his mother during that time, except the five feet referred to as having formed a part of the alley way. The evidence of the defendant, however, tended to contradict the plaintiff's proof upon that question. The evidence is somewhat conflicting, or is at least of a character from which different inferences might be drawn. Upon all the evidence the court found that the plaintiff did not have a good or marketable title to the premises; that the building covered premises not included within the...