This controversy is submitted upon an-agreeu statement of facts under section 1279 of the Code of Civil Procedure.
At the time fixed for the closing of the contract the plaintiff refused to accept the deed tendered, on the ground that the defendants could not convey a good title, since they had a record title to a lot only twenty-three feet seven inches wide, front and rear, while the contract and deed tendered described the lot as twenty-four féét seven inches wideein front and twenty-four feet five inches wide in the rear. The defendants claim to have acquired title to this strip of land by adverse possession, and the question presented for our determination is, “Were the defendants able to convey a good and marketable title to the premises in question pursuant to the contract entered into between the parties hereto on the 15th day of April, 1907?” • '
From the submission it appears that on May 1, 1822, one Miller became possessed of the premises in fee, the deed conveying to him “ all that certain messuage or dwelling house and lot, piece .‘or parcel of ground ” bounded and described as in the contract between the parties to this submission, except that the width of the lot was given as twenty-three feet seven inches, front and rear. The building described in this deed as a dwelling house was actually twenty-four feet seven inches in front and twenty-four feet five inches wide in the rear, and it occupied substantially the entire lot. It still stands upon the lot in the same position that it did then, neither the front nor the rear nor the side walls having been in the meantime
In Reed v. Farr (35 N. Y. 113) .it was held that the practical location.of a boundary, line and an acquiescence of the parties • therein for a" period of moró than twenty years is conclusive of the location of the boundary line and that such location and acquiescence are deemed conclusive'on the ground that they constitute evidence of the correct location of so high a nature as to admit of no contradiction. There, the line of - separation between the two lots was:made by the erection'óf a fence and thére was proof that the ownels and occupants of the land had respectively occupied it
In Baldwin v. Brown (16 N. Y. 359), which is referred to and cited with approval in Reed v. Farr (supra), it was held that pracr tical location and long acquiescence in a boundary line are conclusive because they are proof that the location is correct and to such a:i extent as to preclude evidence to the contrary.
In addition to this, the submission shows that for over fifty years, the defendants and their predecessors in title have been in actual, peaceable occupation and possession of the entire premises with the. building thereon, as described in the contract, and that no person, during. that time, has made claim of having any interest in the premises or the strip of land in dispute, nor to the knowledge of the parties is there any person .in existence who has, or can have, any claim of title thereto as against the defendants. Under such facts and circumstances,' I am of the; opinion that the defendants have a good and marketable title to the premises in question and are able to convey the same to the plaintiff. (Wentworth v. Braun, 73 App. Div. 634; affd., 175 N. Y. 515; Weil v. Radley, 31 App. Div. 25; affd., 163 N. Y. 582; Katz v. Kaiser, 154 id. 294; Meyer v. Boyd, 51 Hun, 291.)
It follows, therefore, that the defendants are entitled to a judgment directing the plaintiff to perform said agreement and pay to the defendants the sum of $9,750, with interest thereon from the 14th day of May, 1907, on receiving a deed of conveyance of the lot in question as provided in the contract, with costs.
Patterson, P. "J., Laughlin, Clarke and .'Soott, JJ., concurred^
Judgment ordered for defendants, with costs. Settle order on notice.- '