#### Sylvester Pope et al., as Executors, Etc., Plaintiffs, *v.*John E. Thrall, Defendant.

(Supreme Court, New York Special Term,

November, 1900.)

1. Marketability of title — Agreement, that a title insurance company shall decide it, valid — A monument controls metes and bounds.

Where vendors and a vendee agree that the marketability of the title to certain real estate proposed to be sold shall be decided by a title insurance company, and that the vendee shall accept the title provided the company will insure it in a certain amount, the willingness of the company so to insure it makes it obligatory upon the vendee to accept it.

A monument in a description controls metes and bounds therein stated, and where the title company, is willing to insure only according to its own survey based upon a monument, the vendee is not aggrieved in a case where both methods unquestionably comprise the same land.

3. Same — Adverse possession by a tenant in common.

A tenant in common may acquire adverse possession as against his cotenants. -

Action to compel the specific performance of a contract for the sale of certain real property.

A. I. Elkus, for plaintiffs.

1STorman A. Lawlor, for defendant.

Blanchard, J.

This is an action to compel the specific performance of a contract for the sale by the plaintiffs to defendant of certain property situated at the northeasterly corner of "West Eleyenth and Washington streets, described as follows: *“*All those certain lots, pieces or parcels of land, with the buildings and improvements thereon erected, situate, lying and being in the bor*45ough of Manhattan, city and county of New York, which, taken together, are bounded and described as follows, viz.: ¡Beginning at a point formed by the intersection of the easterly side of Washington street with the northerly side of West Eleventh street, formerly Hammond street; thence northerly along the easterly side of Washington street seventy-five (75) feet to lands now or late of Abijah Hammond; thence easterly and along the lands now or late of Abijah Hammond and James Patton one hundred and five (105) feet to land now or formerly belonging to L. Suydam; and thence northerly along said land of L. Suydam sixty (60) feet to the northerly side of West Eleventh street, formerly Hammond street; thence westerly along said northerly side of West Eleventh street ■one hundred and eighteen feet (118) to the point or place of beginning. Be the said several dimensions more or less. Said premises being known by the street numbers 337, 339, 341, 343 and ■345 West Eleventh street, and 719 and 721 Washington street, borough of Manhattan, ¡New York city. Subject to the state of facts shown by survey made by Frank E. Towle, C. S., dated June 23rd, 1999.”

Two clauses of the contract will be particularly noted — *First*the subject clause just quoted, which follows the description of the property, and, *secondly,*the following: “ The parties hereto agree that the title shall be deemed marketable, and the party ■of the second part shall accept the same, provided the Lawyers Title Insurance Company of the City of ¡New York will issue a policy of title insurance for forty-six thousand dollars ($46,000.00) to him as owner. The party of the second part agrees to abide by the decision of said Lawyers Title Insurance Company as to the marketability of said title.”

The defendant urges that the Title Company refused to issue its policy, insuring the property as described in the contract. The proof is, however, that the company did offer to insure according *“*to the state of facts shown by survey made by Frank E. Towle, C. S., dated June 23, 1899,” but not according to the metes and bounds contained in the description of the property in the contract. The -difference between the contract description and the Title Company or survey description related to the northerly boundary, the former reading *“*thence easterly and along the land now or late of Abijah Hammond and James Patton *one hundred and five*(105) *feet to the land now or formerly be*
      *46
      *longing to L. Suydam,"*and the latter following precisely the same language with the single exception that the distance is given as 98 *feet*111-2 inches instead of 105 feet.

There can he no question but" that both descriptions included the same quantity of land, both running to the land of L. Suydam and whatever the distance, whether 105 feet or 98 feet 111-2 inches, the actual property included was the same. The designation of a monument, to wit: the land of L. Suydam, must govern and supersedes the statement of the distance by feet and inches. The parties having made the Title Company their arbiter as to the marketability of the title, and the company being willing to insure the title to the property, the title was, therefore, such an one, as, by the contract, defendant agreed to accept, and, accordingly, plaintiffs must prevail in this action. *Flanagan*v. *Fox,*6 Misc. Rep. 132, affd., 144 N. Y. 706.

Irrespective, however, of the willingness of the Title Company to insure the title, I am of the opinion that the objection raised does not render the title unmarketable. The only other objection urged by defendant against the title affects only premises known as No. 339 West Eleventh street, and arises from the following facts: By deed recorded May 12, 1827 (Liber 217 C, p. 445), the title to premises known as Nos. 337, 339, 341 and 343 West Eleventh street became vested in Isaac Haring, David Sarven, Andrew Van Buskirk and Abraham Campbell, as tenants in common. It would seem that these four parties agreed upon a partition of the premises mentioned, each receiving one lot; the records show that Haring, Sarven and Van Buskirk, and their respective wives, joined in a conveyance of No. 337 to Campbell (Liber 217 C, p. 451); that Haring, Van Buskirk and Campbell, and wives, joined in a conveyance of No. 341 to Sarven (Liber 269 C, p. 192); and that Sarven, Van Buskirk and Campbell, and wives, joined in conveyance of No. 343 to Haring (Liber 225 C, p. 45); All these conveyances are dated April 2, 1827. No deed is found of record from Haring, Sarven and Campbell to Van Buskirk of premises No. 339, which would seem to have been allotted to Van Buskirk, for he and his wife, and one Martin Blanch and wife, conveyed No. 339 to Henry Westervelt by deed dated May 1, 1828 (Liber 239 C, p. 102). The title subsequent to this conveyance, a period of over seventy-two years, appears to be in all respects regular. Defendant urges that, because of the absence *47of any conveyance from Haring, Sarven and Campbell, that, therefore, they or their heirs are still the legal owners of three-fourths of No. 339. Plaintiffs contend that they have title by adverse possession, as they or their grantors have been in possession continuously for more than thirty years last past under such circumstances as. would create title by adverse possession.

I am inclined to agree with plaintiffs and the evidence satisfies me that there has been in respect to this land such “ an actual, continued, visible, notorious, distinct and hostile possession,” as under the authorities would constitute a good title in plaintiffs, even as against a cotenant in common. Culver v. Rhodes, 87 N. Y. 348, 354; Abrams v. Rhoner, 44 Hun, 507. These cases and, others which might be cited, clearly show the defendant’s contention, that there can be no adverse possession by a tenant in common against his cotenant, to be without force.

Under the circumstances, a decree of specific performance is proper. O’Connor v. Huggins, 113 N. Y. 511; Cahill v. Palmer, 45 id. 478; Culver v. Rhodes, *supra.*

Ordered accordingly.