#### Port Jefferson Realty Company, Appellant, *v.*Mary C. Woodhull, Respondent.

Second Department,

October 22, 1908.

Real property — vendor and. purchaser — interlocutory judgment for admeasurement of dower — presumption as to marketability of title after lapse of twenty years without further prosecution.

A vendee is not justified in rejecting a title as unmarketable because the wife of a prior owner did not join'in his deed and afterwards began an action to admeasure dower and prosecuted the same to interlocutory judgment awarding an admeasurement if more than twenty years have elapsed since the judgment ■without anything further being done in the' action.

The lapse of twenty years raises a presumption that a settlement was made with the widow, or that she died, and the burden of rebutting the same is on the vendee.

After such lapse of time the burden is upon the vendee to inquire whether the widow be dead, and it is immaterial that he did not know of her death when he rejected title, if it be shown that she actually died between the date of the contract and the day fixed for passing title. As the interlocutory judgment was not for money it died with her.

' Appeal by the plaintiff, the Port- Jefferson Realty Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Suffolk on the . 8th day of April, 1907, upon the verdict of a jury rendered by direction of the court, after a trial at the Suffolk Trial Term, dismissing the complaint.

*Alexander S.*Bacon, for the appellant.

*Timothy M. Griffing,*for the respondent.

*189Gaynor, J. :

The contract price was $1,500 for 31 acres which included the 3 acres the title of which is. in dispute, and on which dispute the plaintiff refused to take the conveyance tendered. The contract was made June 1, 1899, and the closing day was changed by a separate writing to June 1, 1900. The title to the 3 acres comes through one Jones, who conveyed it in 1851 without his wife joining. He having died she commenced an action for the admeasurement of her dower in 1879 and a *Us pendens*was filed. The defendant answered, among other things, that she was entitled to dower only according to the value of the land at the time her husband conveyed it. The issues were tried by a referee who found that the value of the land at the time of such conveyance was $45, and an interlocutory judgment was entered on September 9, 1879, by which it was adjudged as follows: “ that the plaintiff recover of the defendant the possession of one-third of the real property described in the complaint * "x" •* and that said one-third of said premises be admeasured and set off to the said plaintiff according to their value when alienated in 1851, which was $45, their present value being $90.” The judgment was without costs. Nothing else was ever done in the "action, so far as the record shows, and the widow died on December 26, 1899.

The purchaser was not justified in rejecting the title as unmarketable. The next step necessary to take in the dower suit was to appoint a referee or else commissioners to admeasure and lay off to the widow a distinct parcel of the land, or else report back to the count that that was not practicable or to the best interest of the parties, whereupon the' court would in the final judgment award-the widow a gross sum (Code Civ. Proc. secs. 1607 *et seq.).*That - this was not done raised a presumption after such a lapse of time — 20 years and several months — that the widow had been settled with, or had died, and it was therefore for the purchaser to rebut that presumption, by inquiry. Between the date of the contract' and the day fixed for passing the title the widow did die, and the judgment with her, for there was no money judgment. That the . purchaser did not know of her death when he rejected the title does not matter. After such a lapse of time it was for him to inquire. She died and was buried in the town where she and her *190husband had lived, and the land was. That a purchaser is not obliged to-go outside of the *Ms pendens*and the complaint to ascertain the truth of the allegations of the complaint *(Simon*v. *Van*derveer, 155 N. Y. 377) does not affect this case. All of the facts, including the trifling amount involved in the dower suit, raised a presumption against the purchaser which it was for him to overcome ; and an inquiry as to whether the widow had died would not be an inquiry as to the truth of the allegations of the complaint.

.The judgment should be affirmed.

Jenks, Hooker, Rich and Miller, JJ., concurred.

Judgment affirmed, with costs.