The plaintiff sues as assignee of one Henry Hoik to recover damages for the failure on the part of the defendant to convey to said Hoik a marketable title to premises in the city of Hew York contracted by the defendant to be sold to said Hoik.
*484lt appeared upon the trial of the action that the premises in question had a building upon them which encroached by some two inches . upon the adjoining lot. The vendee had gone into possession and made certain repairs to the premises; and upon the rejection of the title the plaintiff brought this action to recover the deposit made under the contract and the value of the repairs, which it was claimed that the defendant had agreed’ to. pay. in case the title was not ' perfect.
The facts disclosed hpon the trial showed that on the 9th of May, 1891, the defendant and said Hoik made a contract for the purchase and sale of the premises in question, which consisted- of a lot of land on the south side of Forty-eighth street distant 300 feet easterly from the-corner of Forty-eighth street and Second avenue, being 25 feet front and rear an d 100 feet'5 inches in depth. This lot was improved.' The purchase price was to be $16,000, $500 to be paid down upon the execution of the contract, and- the further sum of $3,000 on the 1st of August, 1891, when the deed was to be delivered, and the balance of the purchase money to be paid by the assumption of two mortgages amounting to the stun of $12,500, then upon the premises. The vendor covenanted to give a title free and clear from all incumbrancés except the lien of the two mortgages above mentioned, and the vendee agreed, in case of his failure to perform his part of ' the contract, to forfeit all money paid on the contract as .liquidated damages. The vendee was to have possession of the premises on the 3d of August, 1891, subject to existing liens, and in the meantime to have the privilege of repairing the premises if he did.not molest tenants.
On the 11th of May, 1891, a supplemental agreement was entered into by which the vendee was permitted' to take possession of the "premises on that day, and was to pay the interest on the mortgages from that. date, and all taxes, assessments and repairs that might thereafter accrue or be made, and to have all the rents- of the premises from that date until the execution and delivery of the deed.
- It appeared upon the part of the plaintiff that after the contract and supplemental contract had been entered into, the vendee asked the defendant what would be the consequences if the defendant had Mot a clear title; and the defendant replied,that there would be no *485danger about that, and that if there was anything wrong with the title he would be fully responsible:
Upon a survey being made of the premises it appeared that one of the walls of the building upon the front of the lot encroached two inches upon the adjoining lot. Certain negotiations were had between the vendor and vendee in respect to this matter; and the vendee testified that near the first of August or the last of July, he saw the defendant, who promised to have it straightened out in the course of a couple of weeks, and the vendee agreed to postpone the closing of the sale for a month. In the latter part of August he saw the defendant again, who said he was going to see a surveyor; that he had not been able to see the owner of the property upon which the building on the premises in question encroached, as he hadn’t come in town yet. The vendor said: “ What will I do about the repairs; will I stop them or go ahead ? ” The defendant said: “Ho, go on, and if it cannot be straightened out I will be responsible.” The vendee then continued making the repairs in 'question. On the twelfth or thirteenth of September, the vendee saw the defendant again, and asked him if he had the encroachment business straightened out. The defendant said “ nó; ” that the lot next to him had been willed to little children and that he could not do anything with it. Each party was prepared to carry out the contract so far as he was able under these circumstances.
The court at the trial, upon these facts appearing, charged the jury that the defendant could not give a legal title; and the values of- these repairs having been agreed upon, a verdict was directed for the amount of the deposit and certain of the repairs. A motion was made for a new trial, which was denied. From the judgment and order thereupon entered this appeal is taken. •
There is no question raised in respect to the encroachment in question. Rut it is urged that as the building has been erected more than twenty years, there has been adverse possession established, which has ripened into a title." It ■ is undoubtedly true, as •claimed upon the part of the_ defendant, that whenever possession of sufficient duration is proved, the title of the possessor is as good as if conveyed by a deed. (Baker v. Oakwood, 123 N. Y. 16.) It does not seem to be necessary to cite authorities in order to establish that proposition. But the questions of the nature of the *486adverse possession and..the sufficiency of its duration are always questions which are open for investigation and consideration, and the purchaser will not he compelled to' take title where there are circumstances which may have prevented the possession from ripening- into a title. (Shriver v. Shriver, 86 N. Y. 575.) In the case cited it was held that a purchaser will not be compelled to complete the purchase where there ,is some reasonable groimd shown in support of an objection to the title, .or where the title depends upon- a matter of fact which is not capable of satisfactory proof, or ’if' capable of that proof, yet is not so proved.
In the case at bar, in order that this adverse possession should, have ripened into a title, it was necessary to show that - such possession was intended to-be adverse, and further,.that the parties in whom the title to the premises claimed to be. held adversely was vested were in such a condition that the Statute of Limitations ran, and the protection of the statute inured to the benefit of the adverse possessor. In the case at bar there was certainly no proof that tlie possession in. question had ripened into a title or that the statute had run, by showing that there were persons in being' who could have asserted their rights, and who were bound.so to do within the period of the' occupation. On the contrary, it appeared affirmatively, by the statement of the defendant, that the reason he could not perfect his paper title was that the property had been willed to infants. It was clear, therefore, that the possession in question had not ripened into a title. Parties are not required to complete a purchase where it appears that there is a reasonable objection to the title, and no clear, and satisfactory proof that such objection is without foundation. . . _ . '
Under the circumstances .shown it seems to us that the learned judge who tried the cause was right in holding that no. such title as the purchaser was .authorized to require was tendered to him in fulfillment of this contract.
It is Urged’ Upon the part of the appellant that the burden of proof .was on the plaintiff to show that there were infants who had a better title to the property than the- defendant, and that this the plaintiff absolutely failed to'do. But it seems to us that in this view of the '.casé the duties of the defendant were entirely misapprehended. .He was claiming a title because of special circumstances, *487and he was, therefore, called upon to show that those special circumstances gave him a title, and it was not incumbent on the vendee to prove the negative. Even if such were the fact, however, enough was shown by the admissions of the defendant to require the ruling above referred to to have been made.
As to the claim for repairs there was sufficient evidence to warrant the jury in finding an agreement upon the part of the defendant to pay for these repairs in case of a failure of title. It is true that the agreement of the eleventh of May contemplated the vendee’s entry into possession of the premises as owner and the mating of repairs. But when this question in regard to the title came up the defendant induced the vendee to go on with the repairs under the promise to pay. for them if the title failed. The title having failed, he is bound to comply with his contract.
The judgment and order should be affirmed, with costs.
Ingraham and Bumsby, JJ.,' concurred; Barrett and O’Brien, JJ., dissented.