I concur in the conclusion arrived at by Hr. Justice Williams that, the exceptions. should be sustained and a. new trial ordered. I *439do not think that the evidence in this action was sufficient to show that the plaintiffs had a good marketable title to the premises by adverse possession. , The evidence is that the plaintiffs’ predecessor in title entered into possession when the house upon the lot' was completed some time between March 28, 1856, and June 5, 1856. The contract for the sale of the property was made February 27,1888, the title to be closed April 23,1888. Assuming that the evidence would justify a finding that the plaintiffs’ testator or her grantors had been in actual possession of the premises in question for thirty-two years, I do not think that proof of that fact alone is sufficient to make out a marketable title which a vendee is bound to take. The first record of plaintiffs’ title is contained in the deed to Appleby, which is dated March 26, 1856, and the plaintiffs do not claim that they have any record title to the premises prior to that time. They proved a deed of the premises to Appleby from one who, upon the record, had no title to the premises, and was not, so far as appears, then, in actual possession of the premises, with a series of conveyances from Appleby to the plaintiffs’ testator and possession under' such conveyance down to the time of the execution of the contract. Several of the parties who owned and occupied the property during this time are dead. There is no evidence as to the real owners of the property, whether or not they are residents of this State, under any disability, or whether any facts or circumstances exist which could prevent the running of the Statute of Limitations, or would create a good title in the plaintiffs by adverse possession. The burden is ujjon the plaintiffs to show that they had a marketable title to the premises at the time the contract was to be performed, and unless they sustain that burden they are not entitled to a judgment. The plaintiffs’ testator showed no record title to the property, but simple possession for thirty-two years.
The real owners ai’e not parties to the record, are not bound by any adjudication in this case, and would not be estopped in any way from asserting their ownership of the property in case they could show any fact which would prevent plaintiffs’ adverse possession from ripening into a good title. 1 think that before the burden of proof can be said to have been sustained the plaintiffs were bound to show uncontradicted facts which would negative the existence of anything which could qualify the adverse possession necessary to *440make the plaintiffs’ title good as against the true owner; and as no ■ "fact was shown by which it would appear that some disability did not exist which would prevent this adverse possession from ripen-' ing into a good title, the plaintiffs were not entitled to a verdict.
It is now settled that in an action at law to recover damages for the breach of a contract to convey land, the same rule applies as in an action for specific performance in equity; that where there is a reasonable doubt as to the vendor’s title, such as to affect the value of the property and to interfere with the sale of the land to a reasonable purchaser, the plaintiffs’ cause of. action must be sustained. (Methodist Epis. Ch. Home v. Thompson, 108 N. Y. 618.)
In Shriver v. Shriver (86 N. Y. 585) the court examined at length the question as to what constitutes a marketable title ; and while it is conceded that “ a clear adverse possession for that time (20 years) makes a title which a purchaser at a judicial sale may not refuse,” the question remains, what is “a clear adverse possession ?” And it is said, “ Where the title depends upon a matter of fact such as is not capable of satisfactory proof, * * * a purchaser cannot be compelled to take it; or where the fact is capable of that proof, yet is not so proved. "x" * * 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.”
This title that plaintiff tendered rests ' entirely on lapse of time. Eo fact was found to show that the possession had existed under such circumstances that it would ripen into a good title by adverse possession; 'either such'facts were capable of satisfactory proof, in which case the plaintiff, the vendor, was bound to prove these, or, if he was not so capable, the purchaser should not be compelled to take.
In Lowes v. Lush (14 Ves. 547), in endeavoring to carry out the contract of sale, a deed was executed which operated as an act of „ bankruptcy. It was held that the purchaser would not be compelled to take a title which the court could not warrant him ; that although many acts of bankruptcy have been committed without any consequences from them by which a purchaser could be affected until the time fixed by the act of Parliament had expired, it was *441extremely difficult to give him any assurance that he had got an available title.
Upon the vendor rests the duty of inquiring (Shriver v. Shriver, supra), and he must establish the facts upon which his title rests, and having failed to give any evidence of material facts which are necessary to establish that there has been a “ clear adverse possession ” for twenty years, which had ripened into a good title by adverse possession, he failed to show that he had tendered a deed which would convey a merchantable title, and was not entitled to recover.
For these reasons I think the exceptions should be sustained and a new trial ordered, with costs to abide the event.
Van Brunt, P. J., and Rumsey, J., concurred.
Exceptions sustained and motion for new trial granted, with costs to defendant to abide event.