The action was originally brought by plaintiff’s testator to recover damages for the failure by defendant to perform a contract for the purchase of real estate, 176 Lexington avenue, Hew York city. The testator has since died, and her executors have been brought in as parties plaintiff. The contract was made February 27, 1888, and was, in effect, that the plaintiff’s testator would sell to defendant the premises in question for $14,000, and the defendant would pay ' the purchase prices $250 at the time of the execution of the contract,-$3,750 April 23, 1888, and the balance of $10,000 in cash on the delivery of the deed, April 23, 1888, or at the option of defendant by giving a bond payable on or before April 23, 1890, with six per cent interest from April 23, 1888, secured by a mortgage upon the premises. The contract further provided that the testator, on receiving the purchase price, should execute and deliver to the defendant a proper deed containing general warranty, and the usual full covenants for the conveying and assuring to him of the fee simple of the premises, free from all incumbrance. The defendant paid the testator the $250 at the time of the execution of the contract, but has paid no part of the balance of the purchase money. The time for the completion of the contract was postponed, by agreement of the parties, until May 21, 1888. It was admitted on the trial that the parties both made tenders of performance of the contract at that time; that the defendant necessarily expended $200 in searching the title to the premises, and that the property, at the time the contract was to be completed, was worth the amount of the purchase price, $14,000.
There have been two trials of the case. On the first trial the court held that the title was good, and ordered judgment in favor of the plaintiff for nominal damages. That judgment was reversed and a new trial ordered by the General Term of the Supreme Court. (39 N. Y. St. Repr. 324.) The court then analyzed the chain of paper title (we need not again go over it here), and held in brief that the interest in the property devised under the will of Jacobus Kip to Catherine Teller, during her life, in case she died without issue (she having left no issue), had not been conveyed by the persons to whom it descended, and that, so far as the record title was concerned, therefore, there was a serious defect.
It was then claimed that a title by adverse possession from 1856 *436down was established, so as to cure this defect, but the court held there was a lapse in the testimony on this subject from 1875 to 1880, and that in any. event, without some proof showing where, during this period of thirty years, the outstanding interest was vested, it would be very dangerous for any person to take the title, as the Statute of Limitations might not have run, and a party in taking a title to real estate must necessarily be reasonably assured against the buying of a law .suit.
■ The plaintiffs, on the second trial, made no claim of a good merchantable record title-, but claimed that there was a good merchantable title by adverse possession. The plaintiffs showed, and the court found (there being no request to go to the jury on the question), a continued possession of the property by themselves and their grantors from 1856 down, a period of about thirty-two years, but they did'not show where the outstanding interest of the Kip heirs was vested during that time. It has been held that a promise to convey a good title is always implied in an executory contract for the sale of lands, and a purchaser is never , bound to accept a defective title unless he expressly stipulates to take such title, knowing its defects; that a good title means not only a title valid in fact,, but a marketable title, which can again be sold to a reasonable purchaser or mortgaged to a person of reasonable.prudence, and that a purchaser will not generally be compelled' to take a title where there is a defect in the record, which -can be cured only by a resort to parol evidence. (Irving v. Campbell, 121 N. Y. 353.)
A title open to reasonable doubt is not a marketable title. The court cannot make it such by passing upon an objection depending upon 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. 10.) ' Such a doubt exists when there is uncertainty as to some fact appearing in the course of its deduction, which affects the value of the land and will interfere with its sale. (Vought v. Williams, 120 N. Y. 253.)
It is said that no danger is to be apprehended under the proofs on the second trial, by reason of the possibility that the Statute of Limitations has not run; that the persons holding the .outstanding *437title, whoever they may have been, must, in the absence of proof, to the contrary, be presumed to have been sane and innocent of any crime, and that infancy could not have delayed the running of the statute beyond the period of thirty-one years, so that the title by adverse possession, as it was attempted to be shown at the trial,' was made out and established beyond a reasonable doubt, and that was all that was necessary under the authorities hereinbefore referred to.
The claim made by the plaintiffs is that at the time agreed upon for the completion of the contract, May 21,1888, their testator tendered to the defendant a deed conveying a good, merchantable title to the property, and it was refused, and they base their right to recover damages here upon the claim - that the defendant then and there refused to perform the contract, which he was legally bound to perform. The question is whether the title then tendered was good and merchantable so that the defendant was bound to accept and pay for the property. The parties - stand upon their strict legal rights, and the breach of the contract, which gives a right to recover damages, occurred, if at all, at the time of the tender and refusal. Evidence was given in the case as to what took place at the time the deed was tendered and refused by Mr. Daly, counsel for defendant, who testified that he objected to the title because there was no conveyance by the Iiip heirs, and no. evidence of conveyance- to the center of the road or of adverse possession for a sufficiently long period; that Mr. Buckley (for plaintiffs’ testatrix) contended that the record title was good and offered no proof of adverse possession: that on a previous occasion he, Mr. Daly, asked for proof as to adverse possession; that none was offered him, and he asked Mr. Buckley if he would have the testatrix swear to an affidavit if he, Mr. Daly, would draw one, and that- he drew one which she swore to; that no other proof of adverse possession was offered him by. Mr. Buckley, who claimed the record title was good, and that it was on that and that only he relied. It also appeared on cross-examination that he, Mr. Daly, prior to that time, had himself procured an affidavit of possession from Mr. Appleby, who was a witness on the trial. Neither of these two affidavits was given in evidence and their contents were not before the. court. It does not appear what the testatrix knew about adverse possession or to what extent she testified to it in her affidavit.
*438The defendant asked to go to the jury on the question of what claim they made, at the time fixed for closing the title, and this request was denied with exception.
We must assume, therefore, as a matter of fact, that when the deed was: tendered and refused the testatrix based her claim as to title to the property upon the. record, and that alone, and that no claim was then made in her behalf that there was any title by adverse possession. The record title is now conceded to have been seriously defective, and no reliance is placed upon it. It seems to us that the plaintiffs’ testatrix, having alleged and relied upon a good record title, and that alone, at the time of the tender and refusal, the plaintiffs should not have been heard to allege on the trial of this action at law that, although she had no good record title, still she had a title by adverse possession which was good and merchantable. They should not he permitted to change their position in this manner for the purpose of supporting this action to recover damages. But.more than this, can it be said that the title, by adverse possession was, at the time of the tender and refusal, free from reasonable doubt, or that such title then appeared to he uncontradicted ¡so that the defendant was bound to receive and pay for the projterty upon the tender of the deed ? The objection to the title was among other things put upon the ground that there was no sufficient proof of adverse possession, and the plaintiffs’ testatrix Was requested to furnish such proof. Hone was offered, however, at that time,, and none was or had been brought to defendant’s attention, except the two affidavits, the nature and extent of which do not appear. Plaintiffs’ testatrix asserted a record title and .defendant disputed it; no other title was. claimed. The title" alleged failed. The defendant was, under the circumstances, justified in refusing to take and pay for the property.
For the reasons here suggested, we think these exceptions by the defendant should he sustained, and the motion for a new trial granted, with costs to the appellant to abide event.
Van Brunt, P. J., and Patterson, J., concurred.'