The plaintiff, as owner of a life estate in the property in question, of which his children were remaindermen, of whom he was guardian in socage, plainly occupied towards them the relation of trustee. (Warren v. Union Bank of Rochester, 157 N.Y. 259.) It was his duty to pay the interest upon the mortgage thereon. (House v. House, 10 Paige, 158, 164; Bell v. Mayor, etc.,of N.Y., Id. 49; Moseley v. Marshall, 22 N.Y. 201.) He failed, and the premises were sold by reason of his default. Almost immediately he repurchased them of the mortgagee, by whom they were bid off upon the sale. Whether this transaction was in good faith or resulted from a collusive violation of his duties as trustee was a question of fact. In this case it has been decided in his favor, so that, if there were no other parties interested, the judgment herein would be conclusive upon the question and the title would be clearly marketable. But when that transaction occurred his children, the remaindermen, were infants, and the infancy of some of them continued until about the time of the commencement of this action. None of them were parties to this or shown to have been parties to any other action where the question of the validity or good faith of that transaction was involved. Nor was there any proof that the plaintiff has in any way acquired or become possessed *Page 420 of their interest in the premises, unless under such foreclosure, sale and repurchase which may ultimately be declared void as to them. The defendant was entitled to a marketable title, and cannot properly be required to accept any other. "A title open to a reasonable doubt is not a marketable title. The court cannot make it such by passing upon an objection depending on a disputed question of fact, or a doubtful question of law, in the absence of the party in whom the outstanding right was vested. He would not be bound by the adjudication and could raise the same question in a new proceeding." (Fleming v. Burnham, 100 N.Y. 1,10; Brokaw v. Duffy, 165 N.Y. 399.) "A purchaser ought not to be compelled to take property, the possession of which he may be obliged to defend by litigation. He should have a title that will enable him to hold his land free from probable claim by another, and one that if he wishes to sell would be reasonably free from any doubt which would interfere with its market value. If it may be fairly questioned, specific performance will be refused." (McPherson v. Schade, 149 N.Y. 16, 21; Jordan v.Poillon, 77 N.Y. 521; Vought v. Williams, 120 N.Y. 253;Shriver v. Shriver, 86 N.Y. 575; Heller v. Cohen,154 N.Y. 299, 306; Dyker Meadow L. Imp. Co. v. Cook, 159 N.Y. 7,15.) The plaintiff was bound to show that the title tendered was good, or at least marketable as against all the world. (Simis v. McElroy, 160 N.Y. 156, 162.) This it seems to me he has failed to do. If the defendant is required to accept the title tendered, possessing as he does knowledge of the transaction of the plaintiff in obtaining the title to property held in trust for his children, what assurance has the former that an action may not be commenced against him by the remaindermen to establish their title to the property and the plaintiff be required to defend it? Again, what assurance has the defendant that even the plaintiff, if called as a witness in such an action, would not give testimony to secure to his children the title to the property for which he had already been paid? Certainly the judgment in this action would be no estoppel to his giving such testimony, and if willing to *Page 421 deprive them of their rights under their mother's will in the manner stated, might it not well be that after obtaining from the defendant the consideration for the premises he might be equally willing to deprive him of the property and secure it for his children?
Under these circumstances and under the principles established by the decisions of this court, it seems to me plain that the defendant ought not to be compelled to accept the title offered, and that the judgment appealed from should be reversed and a new trial granted, with costs to abide the event.
GRAY, O'BRIEN and WERNER, JJ., concur with PARKER, Ch. J.; MARTIN and CULLEN, JJ., read dissenting opinions; LANDON, J., concurs with CULLEN, J.
Judgment affirmed.