By the Court.—Potter, J.
[After stating briefly the facts.] No question is made by defendant that the contract
required the defendant to be able to convey to the plaintiff a lawful title to the premises, nor is there any question made by defendant’s counsel that the plaintiff has the legal right to demand a marketable title.
It has been repeatedly held that a title open to a reasonable doubt, or, if after the vendor has produced liis proof of title, a reasonable doubt exists, the title is not marketable (Shriver v. Shriver, 86 N. Y. 575
Nor is there contention by defendant that if there was no seal, actual or presumptive, affixed to the paper purporting to be a deed from Mrs. Ferris to Bowe at the time it was delivered, that the defendant had not the legal title.
This brings us to the consideration of the main question upon the appeal, whether the finding of the trial court that the paper purporting to be a deed was not sealed at the time of its delivery to said Bo we was correct.
We have read all the evidence contained in the case upon, the question, and considered it in connection with all the presumptions arising from the circumstances, and are constrained to adopt the conclusion reached by the trial court. Without referring minutely or in detail to the evidence bearing upon that question, we think the testimony of the deputy clerk in the office where the deed was recorded, and the making the dash mark in lien of the indications of a seal, [276]*276are strongly persuasive that it had no seal upon it when left for record or when recorded. The fact that the same paper in every respect except a seal, and having the same identical attestation clause and certificate of acknowledgment, is presented for record, and recorded some three years after the first recoi’d, is highly significant.
The date of this second record is the time when the defendant was contemplating making a loan upon the premises, when Mr. Arnold, a very intelligent and careful attorney, and a witness called by the defendant upon the trial, was employed to make a search and an examination, and he declined to advise the loan or to pass the title until he had been shown the identical deed with an actual and palpable seal affixed to it and it was again recorded.
This, and other evidence, satisfy us that the paper when delivered by Mr. Ferris to Rowe, and when presented in behalf of the grantee for record, had no seal upon it, and that a seal was not placed upon it until after it'was delivered and once recorded, and not 'until some time afterward, and probably when Mr. Rowe was desirous of obtaining a loan upon it, and the loan was refused on' account of the suspicious and unsatisfactory evidence in relation to a seal.
We do not think the testimony of Mr. Pinckney or of Mr. Post have much, if any, bearing upon the question, especially the testimony of the latter, who, though he testified to the remarkable fact that, when lie took the acknowledgment of the deeds of Mrs. Ferris (which were quite numerous, and the practice extended through a number of years) he noticed that there was a seal upon the instrument, nevertheless, he does not remember whether he wrote the certificate of acknowledgment or not, or what premises the deed conveyed, or who the grantee was, or what his name was, until suggested, or where the acknowledgment was taken, or who was present; and further, he does not know or does not testify whether or not Mrs. Ferris signed or sealed the paper in his presence. The learned counsel cites numerous eases [277]*277where the courts have presumed the paper bore a seal when delivered.
Such presumptions will prevail where there is not proof that the paper had no seal. But where there is proof, positive and uneontradieted, that there was no seal, the force of such presumption is too feeble to be appreciated, and the force of the presumption is weak just in the inverse ratio that the proof is strong.
And this is substantially the rule laid down by Sugden on Powers, and cited by the appellant’s counsel,—“ where the instrument is a deed, and on proper stamps, and it is stated in the attestation to have been sealed and delivered in the presence of witnesses, it will, in the absence of evidence to the contrary, be presumed to have been sealed.”
We conclude, therefore, that there was ho error in the finding from the evidence in the case.
The only remaining question is, whether the court erro-' meously excluded any evidence upon the trial npoft the part of defendant, which should or could have produced a different finding.
It is contended upon the part of the appellant, that an error of that character occurred in excluding the evidence of Pinckney as to the declaration of Mrs. Ferris.
We think otherwise. Mr. Pinckney testified that in 1874, whether before or after the deed was recorded- the second time in May, 1874, does not appear—he examined the title of Mrs. Ferris’ property on Madison avenue, north of 68d street, with a view of her making a loan upon it, and which she did. He further testified ; “ I am aware of these matters of record that have been given in evidence. I can’t say as* to the seal. At the time that I took that mortgage I thoroughly examined the record put in evidence here. I think the time was about 1874. I may be mistaken in that.”
The question—the answer to which was excluded—was, ■ 6< What was said in regard to the matter between you and Mrs. Ferris?” We think the ruling was correct. The question was too indefinite for any practical purpose. Ho [278]*2781matter ” was specified or indicated. It might have had • relation to any of the matters above detailed.
It is not the business or duty of a court to surmise that the answer would be competent evidence bearing upon some issue in the.case, and then strike it out if it should otherwise turn out. The duty of counsel is to ask a question plain and proper upon its face, and if it is not, then with such explanation as will make it a legitimate inquiry. It was, no doubt, clear and distinct in the counsel’s mind what he proposed to prove. He should have made it so to the mind of the court. If he could suppose with any degree of certainty that it related to the seal, and if it was competent for her to speak of that, she had already said over her signature in the deed “ in witness whereof she had set her hand and seal.” .
This was not said by her under oath, nor was what she said to the witness under oath. Repeating it would not make it any higher or stronger evidence. But it must be very clear that what Jsbe said had no relation to the premises in question. She was having an examination made as to the title of the premises on which she was about to make a loan in 1874. She could not be taking a mortgage to secure a loan about to he made by her on her own property, or on what she had sold to ¡Rowe, who, or whose grantee, had procured a loan from the defendant upon the security of these premises in question. What she said was, after she had given at least a paper which divested her of all beneficial or substantial interest in the promises, and when she was out of the possession of them. We are not aware of any case that goes so far (Sanford v. Ellithorp, 95 N. Y. 48). The question, moreover, called for what witness said, as well as what Mrs. Ferris said, and made no discrimination.
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By the Court.—Potter, J.
[After stating briefly the facts.] No question is made by defendant that the contract
required the defendant to be able to convey to the plaintiff a lawful title to the premises, nor is there any question made by defendant’s counsel that the plaintiff has the legal right to demand a marketable title.
It has been repeatedly held that a title open to a reasonable doubt, or, if after the vendor has produced liis proof of title, a reasonable doubt exists, the title is not marketable (Shriver v. Shriver, 86 N. Y. 575
Nor is there contention by defendant that if there was no seal, actual or presumptive, affixed to the paper purporting to be a deed from Mrs. Ferris to Bowe at the time it was delivered, that the defendant had not the legal title.
This brings us to the consideration of the main question upon the appeal, whether the finding of the trial court that the paper purporting to be a deed was not sealed at the time of its delivery to said Bo we was correct.
We have read all the evidence contained in the case upon, the question, and considered it in connection with all the presumptions arising from the circumstances, and are constrained to adopt the conclusion reached by the trial court. Without referring minutely or in detail to the evidence bearing upon that question, we think the testimony of the deputy clerk in the office where the deed was recorded, and the making the dash mark in lien of the indications of a seal, [276]*276are strongly persuasive that it had no seal upon it when left for record or when recorded. The fact that the same paper in every respect except a seal, and having the same identical attestation clause and certificate of acknowledgment, is presented for record, and recorded some three years after the first recoi’d, is highly significant.
The date of this second record is the time when the defendant was contemplating making a loan upon the premises, when Mr. Arnold, a very intelligent and careful attorney, and a witness called by the defendant upon the trial, was employed to make a search and an examination, and he declined to advise the loan or to pass the title until he had been shown the identical deed with an actual and palpable seal affixed to it and it was again recorded.
This, and other evidence, satisfy us that the paper when delivered by Mr. Ferris to Rowe, and when presented in behalf of the grantee for record, had no seal upon it, and that a seal was not placed upon it until after it'was delivered and once recorded, and not 'until some time afterward, and probably when Mr. Rowe was desirous of obtaining a loan upon it, and the loan was refused on' account of the suspicious and unsatisfactory evidence in relation to a seal.
We do not think the testimony of Mr. Pinckney or of Mr. Post have much, if any, bearing upon the question, especially the testimony of the latter, who, though he testified to the remarkable fact that, when lie took the acknowledgment of the deeds of Mrs. Ferris (which were quite numerous, and the practice extended through a number of years) he noticed that there was a seal upon the instrument, nevertheless, he does not remember whether he wrote the certificate of acknowledgment or not, or what premises the deed conveyed, or who the grantee was, or what his name was, until suggested, or where the acknowledgment was taken, or who was present; and further, he does not know or does not testify whether or not Mrs. Ferris signed or sealed the paper in his presence. The learned counsel cites numerous eases [277]*277where the courts have presumed the paper bore a seal when delivered.
Such presumptions will prevail where there is not proof that the paper had no seal. But where there is proof, positive and uneontradieted, that there was no seal, the force of such presumption is too feeble to be appreciated, and the force of the presumption is weak just in the inverse ratio that the proof is strong.
And this is substantially the rule laid down by Sugden on Powers, and cited by the appellant’s counsel,—“ where the instrument is a deed, and on proper stamps, and it is stated in the attestation to have been sealed and delivered in the presence of witnesses, it will, in the absence of evidence to the contrary, be presumed to have been sealed.”
We conclude, therefore, that there was ho error in the finding from the evidence in the case.
The only remaining question is, whether the court erro-' meously excluded any evidence upon the trial npoft the part of defendant, which should or could have produced a different finding.
It is contended upon the part of the appellant, that an error of that character occurred in excluding the evidence of Pinckney as to the declaration of Mrs. Ferris.
We think otherwise. Mr. Pinckney testified that in 1874, whether before or after the deed was recorded- the second time in May, 1874, does not appear—he examined the title of Mrs. Ferris’ property on Madison avenue, north of 68d street, with a view of her making a loan upon it, and which she did. He further testified ; “ I am aware of these matters of record that have been given in evidence. I can’t say as* to the seal. At the time that I took that mortgage I thoroughly examined the record put in evidence here. I think the time was about 1874. I may be mistaken in that.”
The question—the answer to which was excluded—was, ■ 6< What was said in regard to the matter between you and Mrs. Ferris?” We think the ruling was correct. The question was too indefinite for any practical purpose. Ho [278]*2781matter ” was specified or indicated. It might have had • relation to any of the matters above detailed.
It is not the business or duty of a court to surmise that the answer would be competent evidence bearing upon some issue in the.case, and then strike it out if it should otherwise turn out. The duty of counsel is to ask a question plain and proper upon its face, and if it is not, then with such explanation as will make it a legitimate inquiry. It was, no doubt, clear and distinct in the counsel’s mind what he proposed to prove. He should have made it so to the mind of the court. If he could suppose with any degree of certainty that it related to the seal, and if it was competent for her to speak of that, she had already said over her signature in the deed “ in witness whereof she had set her hand and seal.” .
This was not said by her under oath, nor was what she said to the witness under oath. Repeating it would not make it any higher or stronger evidence. But it must be very clear that what Jsbe said had no relation to the premises in question. She was having an examination made as to the title of the premises on which she was about to make a loan in 1874. She could not be taking a mortgage to secure a loan about to he made by her on her own property, or on what she had sold to ¡Rowe, who, or whose grantee, had procured a loan from the defendant upon the security of these premises in question. What she said was, after she had given at least a paper which divested her of all beneficial or substantial interest in the promises, and when she was out of the possession of them. We are not aware of any case that goes so far (Sanford v. Ellithorp, 95 N. Y. 48). The question, moreover, called for what witness said, as well as what Mrs. Ferris said, and made no discrimination. We do not think it was erroneous to overrule the question.
We are, therefore, constrained to the conclusion that the defendant’s title is not a marketable title, or a title beyond a reasonable doubt'; but that doubt makes it of a precarious character, as it is dependent upon the evidence of an uncertain and contradictory character. In other words, the plaintiff [279]*279would not be getting what was contracted for, but in its stead a law suit, with the chances against her success in it. The judgment should be affirmed, with costs.
' Lawrence, J., concurred.
Aff'g 12 Weekly Dig. 328.