WILLIAM H. REYNOLDS, Respondent,
WILLIAM DE COURCY WHITE and Others, Appellants.
APPEAL by the defendants, William De Courcy White and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Nassau on the 1st day of July, 1910, and also from an order entered in said clerk's office on the 13th day of July, 1910, denying the defendants' motion for a new trial.
Eliphalet W. Tyler, for the appellants.
Charles C. Clark, for the respondent.
On May 12, 1906, defendants entered into a contract with Joseph E. Humbert by which they agreed to sell and he agreed to purchase a tract of land near the village of Rockville Center, known as Reservoir Park and Lynbrook Driving Park, and more particularly described in said contract as the property conveyed by three several
deeds, one of which was referred to as a deed made by Richard Bedell and wife to William De Courcy White, dated September 17, 1883, and recorded September 20 in the same year. This contract was assigned by Humbert to plaintiff, and the closing of the title was from time to time adjourned until November 28, 1906. On that day plaintiff refused to complete his purchase, alleging that there was a defect in defendants' title to a part of the premises. Thereafter he brought this action to recover the earnest money and the expenses of examining this title, and from a judgment in his favor defendants appeal.
The burden of showing that the title was unmarketable is upon plaintiff. ( Reynolds v. White, 134 A.D. 248.) The alleged defect was in connection with a part of the land described in the deed from Bedell to White, above referred to. This deed appeared to describe three pieces of land. The second parcel lay to the east of the highway, known as Ocean avenue, and was excepted from the contract and need not be again referred to. The first parcel was situated on the westerly side of said highway and was irregular in form and was described by metes and bounds, the distance being measured in feet and fractions of a foot and the angles being measured by degrees and minutes of a circle.
That which appeared to be a third separate and distinct parcel was thus described: 'All that certain piece or parcel of Sprout Woodland situate in said Town, County and State, and lying West of the residence of Robert M. Carman, Bounded and Described as follows, Westerly by land of Henry Hewlett, Southerly, Easterly and Northerly by land of Joseph Pearsall, containing by estimation two acres be the same more or less.'
In declining to carry out the contract, plaintiff contended that the only record title to these two acres of land consisted of a quitclaim deed from Oliver S. Denton to Richard Bedell, dated February 21, 1876, and duly recorded, and a quitclaim deed from Zachariah Abrams to Oliver S. Denton, dated September 4, 1871, and duly recorded. This latter deed contained a recital that the premises were the same as those conveyed by a warranty deed bearing date the 21st day of February, 1828, made and executed by Isaac Pearsall and Nancy, his wife, to Zachariah Abrams. This deed was not recorded, nor was the original produced, at the time when the contract
was to be closed. There was some evidence given that there were outstanding mortgages upon a part of the property, and an unpaid tax, but it appears that these liens could have been removed, and the trial court did not find, nor would the evidence warrant a finding, that these incumbrances were assigned as objections to the title or as reasons for plaintiff's refusal to complete.
The doubt about the title arose from the inability of plaintiff's examiners to locate the plot referred to as the 'two acres of sprout woodland.' When the title was rejected, they seem to have supposed that this two-acre piece was not included within the boundaries of the parcel previously specifically described, but was separate and distinct therefrom.
Upon the second trial it was established by old surveys and the testimony of witnesses, beyond dispute, that substantially the whole of the parcel referred to in the 'two-acre' description was already included in the large piece specifically described, the title to which was acquired by Bedell from the executors of Pearsall in 1872. If there is any part thereof which is not thus included, it is so small and insignificant that, even if the title through quitclaim deeds was defective, it would be no ground for rejecting the entire title, as the price was ...