#### Meyer Taub, Plaintiff, *v.*Max Spector and Others, Defendants.

First Department,

February 7, 1908.

Vendor and purchaser—marketable title —title to portion acquired by adverse possession.

A vendor has a good and marketable title to a lot twenty-four feet and seven inches wide in the front and twenty-four feet and five inches wide in the rear and his vendee will be compelled to accept his deed under a contract agreeing to cbnve3 á lot of such dimensions, Where it appears that although the deeds of the premises from 1822 to 1893 desciibed the premises as twenty-three feet and seven inches wide, front and rear, and since 1893 .as twenty-four feet seven inches in front and twenty-four feet and five inches in the rear, the lot had been occupied during said time by a dwelling house which was twenty-four feet and seven inches in front and twenty-four feet and five inches in the rear, and a survey showed the frontage to be twenty-four feet and seven inches and such boundary lines had been acquiesced in by the owners of .the adjacent lots during that period; . • •

Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.

*Julius U.*Reiter, for the plaintiff.

*Emanuel Van Dernoot,*'for the defendants.

McLaughlin, J.:

This controversy is submitted upon an-agreeu statement of facts under section 1279 of the Code of Civil Procedure.

*159Tlie defendants are the owners of certain real estate in the-city of Hew York known as Ho. Ill Hester street, which they contracted to convey to the plaintiff by full covenant warranty deed. The lot contracted to be conveyed is bounded and described in the contract as follows: “ Beginning at a point oh the northerly side of Hester Street, distant forty-two (42) feet' seven (7) inches westerly from the corner formed by the intersection of the northerly side of Hester Street and the westerly side of Eldridge Street; funning thence northerly and parallel with Eldridge Street fifty (50) feet; thence running westerly and parallel with Hester Street, twenty-four (24) feet five (5) inches; thence running southerly.fifty (50) feet to the northerly side of Hester Street, and thence running easterly along the said northerly side of Hester street, twenty-four (24) feet seven (7) inches to the point or place of beginning. ' Be said several distances and dimensions more or less.”

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 *160changed in any respect. By' mesne conveyances) each 'describing the premises as twenty-three feet seven' niches wide, title became vested in 189.3 in one Baraginsky. He conveyed the premises in 1905 by deed of conveyance describing the premises exactly as they áre described in the contract between the parties to this submission and in the deéd tendered thereunder by the defendants, the same description being used in the subsequent conveyances by which title became vested in the defendants. A survey shows the frontage pf the lot on Hester street to be twenty-four feet seven inches, the easterly line being forty-two feet seven inches from Eldridge street. . The westerly line of the premises adjoining on the east has been located'precisely where it is how in all of the deeds of conveyance. since 1822. The easterly' line of the premises adjoining on the west has been .located precisely where it is now in all of the deeds ' of conveyance since 1836 as one hundred and thirty-three feet,four inches, from Forsyth street,, the" stréeh on the west of.the block. This gives the premises' in question a width .'of twenty-fo.ur feet seven inches in front and at least twenty-four feet five inches in the •' rear. It is evident from these facts that the conveyance to Hiller in 1822 erroneously described the lot as *twenty-three*feet seven inches wide instead of *twenty-four*feet seven inches, and the same mistake continued to .be made in the subsequent conveyances down to 1905- The mistake, however, is of no importance because the fact is established that the boundary lines, of the lot were actually located and fixed as early as 1822, and they .have since been acquiesced' in by the owners of the adjacent, lots on botli sides. The' boundary lines' as thus fixed and established during all this time gave the lot in question a width óf twenty-four feet seven inches in front and at least twenty-four feet five inches in the rear.

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 *161up to the fence as their respective boundary lines for over twenty years.

*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.- '