Williamson v. Banning

New York Supreme Court

Williamson v. Banning

33 N.Y.S. 259, 86 Hun 203, 93 N.Y. Sup. Ct. 203, 66 N.Y. St. Rep. 819

DecidedApril 11, 1895

StatusPublished

This text of 33 N.Y.S. 259 (Williamson v. Banning) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Williamson v. Banning, 33 N.Y.S. 259, 86 Hun 203, 93 N.Y. Sup. Ct. 203, 66 N.Y. St. Rep. 819 (N.Y. Super. Ct. 1895).

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Opinion

PARKER, J.

It may be possible that facts exist which would establish a marketable title in the plaintiff, but they are not stated in this record. Plaintiff claims through one James H. Hallock, and, to show title in him, is able to produce only a record of a paper purporting to be a deed to him by James Rutherford, dated May 8, 1854, and recorded in the clerk’s office of the county of Westchester May 17, 1854. The record of such instrument purports to have been acknowledged by the grantor before a commissioner of deeds for the state of New York, in Philadelphia, state of Pennsylvania; but there is no certificate recorded therewith under the hand and seal of the secretary of state, of the state of New York certifying that the person taking such acknowledgment was a commissioner of deeds of the state of New York, as required by statute, in order to entitle a deed “to be used, recorded or read in evidence.” The agreed statement of facts concedes that it cannot be shown outside of the record that the deed was actually executed, acknowledged, and delivered. The deed cannot be found, and it is admitted that no living witness can now be produced who took part in its execution, or who can state of his own knowledge any facts concerning it. Nor does it appear that Hallock took possession under such instrument. On the contrary, it is stipulated “that there is no evidence now known to the parties to this submission that John Hallock ever took actual possession of the said premises under or after the said deed of conveyance last above described.” Summarized, the situation is as follows: The plaintiff has no record title, cannot establish by secondary evidence the execution and delivery of a deed to Hallock, and is unable to prove that actual possession of the property was ever taken by or under Hallock prior to August, 1886. The title which he offers to the defendant is not therefore marketable.'

Judgment is ordered that the defendant be released from the contract, and that the plaintiff pay to her the $500 advanced on ac: count of the purchase price, with interest from November 26, 18.94, together with the sum of $100 for expenses incurred in examining title, with costs. All concur.

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PARKER, J.

It may be possible that facts exist which would establish a marketable title in the plaintiff, but they are not stated in this record. Plaintiff claims through one James H. Hallock, and, to show title in him, is able to produce only a record of a paper purporting to be a deed to him by James Rutherford, dated May 8, 1854, and recorded in the clerk’s office of the county of Westchester May 17, 1854. The record of such instrument purports to have been acknowledged by the grantor before a commissioner of deeds for the state of New York, in Philadelphia, state of Pennsylvania; but there is no certificate recorded therewith under the hand and seal of the secretary of state, of the state of New York certifying that the person taking such acknowledgment was a commissioner of deeds of the state of New York, as required by statute, in order to entitle a deed “to be used, recorded or read in evidence.” The agreed statement of facts concedes that it cannot be shown outside of the record that the deed was actually executed, acknowledged, and delivered. The deed cannot be found, and it is admitted that no living witness can now be produced who took part in its execution, or who can state of his own knowledge any facts concerning it. Nor does it appear that Hallock took possession under such instrument. On the contrary, it is stipulated “that there is no evidence now known to the parties to this submission that John Hallock ever took actual possession of the said premises under or after the said deed of conveyance last above described.” Summarized, the situation is as follows: The plaintiff has no record title, cannot establish by secondary evidence the execution and delivery of a deed to Hallock, and is unable to prove that actual possession of the property was ever taken by or under Hallock prior to August, 1886. The title which he offers to the defendant is not therefore marketable.'

Judgment is ordered that the defendant be released from the contract, and that the plaintiff pay to her the $500 advanced on ac: count of the purchase price, with interest from November 26, 18.94, together with the sum of $100 for expenses incurred in examining title, with costs. All concur.

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Bluebook (online)

33 N.Y.S. 259, 86 Hun 203, 93 N.Y. Sup. Ct. 203, 66 N.Y. St. Rep. 819, Counsel Stack Legal Research, https://law.counselstack.com/opinion/williamson-v-banning-nysupct-1895.