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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 579 Most of the objections to the title set up by the purchaser have been answered by the learned General Term. The one, that arises from the fact that McIlveen was not made a party to the foreclosure of the Douglass mortgage, is presented in this court differently from what it seems to have been at the General Term. It is needful that we consider it further. The appellants seek to avoid that objection, by the claim that the statute of limitations has run against any right of McIlveen or his assigns. This claim has two branches. First, it is insisted that that right is barred by the lapse of eleven years since Mrs. Murray entered into possession of the premises under the foreclosure sale and referee's deed. (Old Code, §§ 99-102.) The case is supposed to be like that of Miner v. Beekman (50 N.Y. 337). It is different in an important particular. There the entry was by the mortgagee, who was also the purchaser at the sale. He thus became a mortgagee in possession, and could defend against the owner of the equity of redemption, or his representative, any action, except one for an accounting of the rents and profits, and to redeem. (Phyfe v. Riley, 15 Wend. 248; VanDuyne v.Thayre, 14 id. 233.) The new Code has changed the time of limitation in such case to twenty years. (New Code, § 379.) But that would not have affected Mrs. Murray's right if she had acquired one, for it would have become *Page 581 come vested before that change in the law, and sacred from alterative legislation. (Beckford v. Wade, 17 Ves. 97.) She did not acquire any, however, for she was not the mortgagee nor the assignee of the mortgagee, in possession, and could not in that character have defended against McIlveen or his assigns. (Watson v. Spence, 20 Wend. 260.) She could not have defended as purchaser, for the foreclosure was void against him and them. (Id.) He or they had twenty years from the entry in which to bring suit to regain the possession.
It is the second branch of the appellants' claim that there was a clear adverse possession of twenty years. The facts of the case make out a continuous, uninterrupted actual possession, beginning with an entry under claim of exclusive title founded on a written instrument and so kept up for over twenty years. (New Code, § 369.) A clear adverse possession for that time makes a title which a purchaser at a judicial sale may not refuse. (Seymour v. DeLancey, Hopk. Ch. 436.) Though there may have been possession thus characterized for the requisite time, there may also be circumstances that will prevent it becoming adverse. There are circumstances in the case in hand that need to be examined, for that reason. We may assume that McIlveen was alive when Mrs. Murray entered into the premises in 1856. He gave an assignment in writing dated in that year and acknowledged in 1857. There is an affidavit in the case, made in 1880, averring that McIlveen died "some years ago," in Australia, and that his heirs-at-law are residents of Scotland in Great Britain. This averment is on information and belief, and it is objected by the appellants that a statement on information and belief is not evidence. We must consider, however, that courts of equity have assumed jurisdiction of this class of questions between vendor and purchaser, and having done so they must pass upon them, and must pass upon them by the means in use in such inquiries, one of which is the production of allegations of fact by affidavits as either within the knowledge of the affiant or existing in his information and belief. These affidavits submitted to the opposing parties (as were the affidavits in the case), *Page 582 and answered, or assented to tacitly or expressly, in their material allegations, or some of them, form a basis of adjudication. (Quincy v. Foot, 1 Barb. Ch. 496.) It is to be noticed that this allegation is not denied or explained, nor its force broken by the appellants, nor is there any attempt made to do so. The appellants, the vendors, ought to know better than the vendee the facts in which their title is involved, and if so important an allegation is incorrect, or vague and indefinite, they ought to be as able as the purchaser to give a court information about it. We must take it then as shown in the case, that McIlveen died and left heirs-at-law as stated. The time when he died is not certain. The phrase "some years ago," may carry the event so far back as to fall within the term of twenty years that began to run in 1856 and would end in 1876. That would be a fair interpretation of it. There is no proof that he left a will. We must assume that he died intestate. If his heirs-at-law in Scotland were aliens, then any interest he left in the lands escheated to the State, and the statute has not yet run against the State. (Old Code, § 75; new Code, § 362.) The only fact as to them made known to us is that they are residents of Scotland. The probabilities are that they were subjects of the Queen of England, and were aliens. If those probabilities were not in the case, there is the possibility that some of them have been, during the lapse of years, since the death of McIlveen, under the disability of infancy, or some other disability. (Old Code, §§ 88, 101; new Code, §§ 375, 396.) Before discussing the effect of these probabilities and this possibility, it is well to see whether any other facts in the case preclude the necessity of so doing. It appears that in 1857 Mcllveen made a transfer of all his property, real and personal, to the Becks for their benefit and behoof forever, but to apply the same toward their indebtedness. This was not an absolute transfer of all right to the Becks. The true construction of it is, that it was a transfer as a means of paying McIlveen's debt to the Becks. If indeed they had sold and conveyed, as they had authority to do, McIlveen's interest would have passed to their grantees and he have had no claim *Page 583 upon it or upon them save for a proper application of the avails, and for any surplus, equity would sustain him or his assigns in calling the Becks to an account, and if they had not sold, in asking for a reconveyance by reason of the debt having been otherwise paid, or of an offer to pay it. There was an equity of redemption in Mcllveen, and his assigns or successors in interest. The lapse of eleven years, but for disability to sue, would have been a bar to this equity, before the new Code. The same possibility of the existence of a disability comes in here, however, to create doubt whether the bar of the statute has attached. The fact appears, that the Becks did not sell and make conveyance on a sale. In 1858 they made an insolvent's assignment in trust for creditors, to Theriott and Hurd, of all their property, real and personal. Under that assignment, all their interest in these premises passed to the assignees, yet subject to the equity of redemption, existing in McIlveen or his representatives, with all its incidents, as we have above stated them. There is an allegation in the affidavits, that the assignees fully executed the trust, and that the property reverted to the Becks, and this averment is sustained by another that the Becks quit-claimed and released all their interest in the premises to Mrs. Murray. Then it reverted to them with all its incidents. If the indebtedness to them remained unpaid, and their conveyance to her was on a bargain and sale, McIlveen and his assigns would have been divested of title and interest in the premises, as they had authority to sell and dispose, and the right left in him or his assigns would have been to have an accounting, due application of the avails of the sales, and payment over of any surplus. It does not so appear. It is stated in the affidavit to be a quit-claim and release of all interest. This was without the bounds of their power as given by McIlveen. It was a giving of it away, not a sale for the good of McIlveen; Mrs. Murray was bound to know what the title or authority of the Becks was. So that transaction was subject to the same doubt, whether there was not a successor in interest to McIlveen, who for awhile under a disability to sue, may not, after disability is removed, come *Page 584 within the time of the bar, and make claim for an accounting and redemption. Thus the inquiry comes back to the possibility of which we have spoken. The appellants style this a mere suspicion ending in a suspicion, a possibility based upon a possibility, a bare possibility, and cite Atkinson on Marketable Titles, 396, 403, that such an objection to a title is not good. Seymour v.DeLancey (supra) is also cited, where the chancellor said, that the slight proof in that case, that one of the grantors may have been an alien, or if he was a citizen, the mere contingency that his title may have resided since his death in persons disabled to assert their rights, would not be thought sufficient to impeach his title. He had said before that, that there was not proof enough of an adverse possession for twenty years. Hence his remark was obiter. Nor was it stated as a deliberate conviction, nor was the proof positive of the alienage of the grantor, nor was there any proof of his heirs-at-law, and there was so much doubt of the title that he did not consider it as sufficiently sustained and directed an issue of law to have the question tried. We must seek elsewhere for a rule applicable to all cases, and which will guide us in this. As a general rule, a title which is open to judicial doubt is not a marketable title. What is a sufficient ground for judicial doubt is not to be conclusively reduced to fixed and determinate principles, for it depends in some degree upon the discretion of the court. (White v. Damon, 7 Ves. 35.) Yet there have been rules uttered by courts, that aid in disposing of particular cases. Thus it is said in Price v. Strange (6 Madd. 159), that, in attempting to lay down a rule, it may be stated that a purchaser is not to take a property, which he can only acquire in possession by litigation and judicial decision. Which is equal to saying, nor one the possession of which he must thus defend. A title may be doubtful, which is to say unmarketable, because of the uncertainty of some matter of fact appearing in the course of the deduction of it. And if, after the vendor has produced all the proofs that he can, a rational doubt still remains, a title is not marketable. It seems that a rational doubt may be said to exist when a court of law would not feel called upon to instruct a jury to find *Page 585 that the fact existed, on the existence of which the vendor's title depends. (Emery v. Grocock, 6 Madd. 54.) When there is some reasonable ground of evidence shown in support of the objection, the doubt goes further than suspicion. Where the title depends upon a matter of fact, such as is not capable of satisfactory proof, as in Lowes v. Lush (14 Ves. 548), a purchaser cannot be compelled to take it; or where the fact is capable of that proof, yet is not so proved. (Smith v. Death, 5 Madd. 371.) In this class of cases are those where the title depends on presumption grounded merely on the lapse of time. It is said by a text-writer, that, as between vendor and purchaser, the court ought not to presume, unless it believes on circumstances strong enough to induce belief, that the fact is actually so. (Atkinson on Marketable Titles, 419.) When we apply these views to this case, can we say that a court would make no error if it directed a jury to find that there did not exist any person who could still question the possession held under the mortgage sale? or that there was not an escheat to the State and a right there? Could a judge sitting in equity believe that the possessory title is entirely free from such liability to successful assault? Are the circumstances so strong as to induce that belief? A jury might find so, and the verdict would be held good if the issue was left to them. But the facts that have been shown and not rebutted, or explained away or softened, are too strong, not to create a reasonable doubt that ought to be solved, before a bidder at a judicial sale, now unwilling to complete his purchase, should be compelled to take the title. The title of the vendors rests upon a presumption raised by lapse of time. But in conflict with that presumption, facts, not suspicions only, appear, raising a rational doubt whether a vendee, relying upon that title, may not be called upon to defend, and to produce proof to explain or obviate those facts. That proof the vendors do not bring forward for the use of the vendee.
Though but one lot of the two sold is affected by the objection raised, the purchaser ought not to be compelled to take the other separately. His purpose in buying took in the *Page 586 acquisition of both lots, and he cannot reach it unless he has both. It would be unfair to him to compel him to take one which he cannot put to the use which he contemplated for both.
The amount allowed to the purchaser for counsel fee was so much in the discretion of the courts below that we cannot review their allowance.
It is possible that further inquiry on the part of the vendors (and on them is the duty, and should be the labor of inquiry), may bring facts to light that will remove this doubt. It would not, in our judgment, be an unwise exercise of power to enable them to make the attempt. Yet that is a matter entirely for the disposition of the learned court below.
It must not be taken, from any thing that we have said, that we do not regard a title good that rests alone upon a clear adverse possession of twenty years; nor that we pronounce the title of the vendors in the case before us as defective. What we hold is, that the vendee has brought such facts and circumstances as call upon the vendors to show how they may be met and nullified before they can compel him to complete his purchase.
The order appealed from should be affirmed.
All concur.
Order affirmed.