Frank Loomis, (Ira A. Place, of counsel,) for appellant.

R. E. & A. J. Prime & Burns, (Ralph E. Prime, of counsel,) for respondents.

PRATT, J. We think the judgment in this case should be af firmed, upon the facts and principles stated in the opinion filed by Mr. Justice Dykman upon the trial. 23 N. Y. Supp. 927. There was no error on the part of the trial judge in refusing to find the 3d, 5th, 6th, and 9th requests of the defendant. Some of said requests were not justified by the evidence, and others, if found, could not have changed the result. The judge found that the title to the land in question was in the plaintiffs, by virtue of being upland owners, and the same being an accretion to their shore. In this the decision is sustained by authority. Steers v. City of Brooklyn, 101 N. Y. 56, 4 N. E. Rep. 7. This case differs from that of People v. Commissioners of Land Office, 135 N. Y. 447, 32 N. E. Rep. 139, as in that case the relator was not the owner of the adjoining upland. The plaintiffs, at least, had title, in the sense that they had the right of unobstructed access to the shore of the Hudson river, which we think is sufficient to sustain the judgment. Yates v. Milwaukee, 10 Wall. 497; Rumsey v. Railroad Co., 133 N. Y. 79, 30 N. E. Rep. 654; In re City of Yonkers, 117 N. Y. 564, 23 N. E. Rep. 661; Illinois Cent. R. Co. v. State of Illinois, 13 Sup. Ct. Rep. 115; Rice v. Ruddiman, 6 Mass. 332; Corporation v. Newman, 12 Pick. 467; Doane v. Association, 10 Mich. 125. We think the deed of Flagg to the defendant of the parcel 73 feet in width did not cut off the shore owner's right to go to the river. This deed, expressly limited to parcel B, (73 feet in width,) could not be held to affect the right of the grantor to pass from the original share over parcel F, in question, without obstructions, at least, as far as the east line of parcel B. But we think the right also remained in Flagg and his grantees to cross the railroad, (parcel B,) and go to the river, especially after the state patented the land west of the railroad line (parcel B) to the plaintiffs' grantors in 1869. Langdon v. Mayor, 93 N. Y. 151; Smith v. Railroad Co., 63 N. Y. 58, and cases cited; Laws 1850, c. 140, §§ 44, 49. The right to cross the railroad is recognized in the deed of Flagg to the defendant by a covenant on the part of the latter to that effect. The defendant utterly failed to show any title to the parcel in question, or any right to occupy the same. Neither the charter nor the filing of maps could confer any title upon the defendant. Railroad Co. v. Aldridge, 135 N. Y. 83, 89, 32 N. E. Rep. 50.

The power of the commissioners of the land office and the quality of the title of the state to lands under water are sufficiently dis cussed in the opinion below, before referred to. The defense of title by adverse possessions was not established, as matter of fact; so also of the defense that the plaintiffs' deeds of the land were void because of the statute avoiding deeds of land in the actual possession of other persons claiming adversely.

We also think the court below was right in refusing to find

defendant's request No. 14, as the proof was against such a conclusion. There are many questions in this case upon both sides of which much can be said, but, in view of the long opinion rendered below, and the discussion of recent cases in the court of appeals of a similar character, it seems unnecessary to state more here than the conclusions at which we have arrived after careful examination of the case and the briefs. The conclusions of fact seem to be supported by the evidence, and the conclusions of law are well supported by reason and authority. Judgment affirmed, with costs.

SLOANE v. MARTIN.

(Supreme Court, Special Term, New York County. June 1, 1893.)

1. SPECIFIC PERFORMANCE-TITLE-JUDGMENT-PRESUMPTION.

Specific performance will be decreed of a contract to purchase land, the vendor's title to which depends on the decree of a court of general jurisdiction in a suit in which defense was made by guardians ad litem appointed by the court on petition for the infant defendants, assuming the jurisdiction of the court depended on the service of a subpoena on the infants, though the record was entirely silent as to whether a subpoena, which was issued, was served on them; it being necessary that the presumption that the court would not have proceeded, had there been no such service, should be overcome by positive evidence.

2. SAME EVIDENCE TO REBUT PRESUMPTION.

This presumption is not overcome by the fact that in proceedings subsequent to the decree, leading up to the execution of the decree of sale, it was stipulated for the purposes of the motion to make the purchasers at the sale take the title that the infant defendants had not been served with the subpoena, as it cannot be presumed that it was made because it could not be proved that such service was made.

8. FEDERAL COURTS-PRACTICE-INFANTS-GUARDIAN AD LITEM.

Congress and the federal courts having failed, up to 1868, to prescribe the manner in which infant defendants in equity suits in a federal court should be subjected to the jurisdiction of the court, and equity rule 90, then in force, having provided that, where the rules of the federal courts did not apply, the practice of the circuit court should be regulated by the practice in the English chancery court, a guardian ad litem for infant defendants could be appointed by the court without personal service on the infants, on an appearance being entered by a solicitor for such defendants, followed by a petition by their mother for such appointment, this being proper practice in the English chancery court.

Action by Matilda Sloane, as executrix of George Sloane, deceased, against William R. H. Martin, for specific performance of a contract for sale of real estate. Judgment for plaintiff. Before WILLIAM ALLEN BUTLER, Esq., Referee.

M. B. & A. M. Maclay, (Moses B. Maclay and Charles I. McBurney, of counsel,) for plaintiff.

Shipman, Larocque & Choate, (William G. Choate and Charles C. Marshall, of counsel,) for defendant.

BUTLER, R. The plaintiff brings this action to compel the specific performance by the defendant of a contract for the sale of certain lands and premises situated at, and adjoining, the north

east corner of Broadway and Thirty-Second street, in the city of New York, extending on Broadway 53 feet 9 inches, and on ThirtySecond street 122 feet 10 inches. The contract, which bears date October 22, 1891, provided for the sale and conveyance by the plaintiff of the premises, as described therein, to the defendant, in consideration of the sum of $650,000, to be paid in the manner specified by the contract, upon receipt whereof the plaintiff was to execute and deliver to the defendant an executrix's deed, conveying the fee simple of the premises, free from all incumbrances except certain enumerated existing leases. At the proper time the plaintiff tendered to the defendant a conveyance of the premises, as described in the contract, duly executed by herself, in her capacity of executrix under the will of her husband George Sloane, deceased, which contained a power of sale authorizing such conveyance, and also duly executed by all the heirs at law and devisees of the testator. No objection was made by the defendant to the form of the conveyance, but as to a part of the premises, being that portion thereof situated on the northeasterly corner of Broadway and Thirty-Second street, which was conveyed by William V. Brady and wife and Henry A. Hurlbut and wife to Ezra R. Goodridge by deed dated January 30, 1867, the defendant objected to the conveyance tendered by the plaintiff, and refused to accept it, on the ground that it did not convey a good and marketable title, alleging that the title to that portion of the premises was not in the plaintiff, and was never acquired by her testator, but that the owners thereof are the children of the said Ezra R. Goodridge, who died on or about August 20, 1867, and who at the time of his death was the sole owner thereof, in fee simple. As to the residue of the premises, the defendant made no objection to the title tendered by the plaintiff. The plaintiff claims, upon the pleadings and proofs in this action, that the deeds tendered by her to the defendant were in full performance of her contract of sale, and that, as to the portion of the premises to which the defendant's objection applies, the title in fee simple was acquired by J. Pierpont Mor gan under a sale made by Simon de Visser, a receiver thereof appointed by the circuit court of the United States for the southern district of New York in a suit in which James Drake and others were plaintiffs, and Francis Goodridge, survivor of Ezra R. Goodridge, and others, were defendants, pursuant to the decree of the court made therein, June 19, 1868, and that by subsequent conveyance by Morgan, the purchaser at the receiver's sale, to the plaintiff's testator, the latter acquired a good title in fee to the same premises. The defendant's contention upon the evidence at the trial is that in respect to the two infant children of Ezra R. Goodridge, who were made parties defendant to the above suit, a reasonable doubt exists as to the question whether service was made upon them, respectively, of the process of the court, and also as to the further question whether the circuit court of the United States, sitting in equity, could, at the time of the commencement of the suit, acquire jurisdiction over the infant defendants in any

other manner than by the service upon them of the process of the court. The question, therefore, to be determined, under the issue joined in this action, is whether the title tendered by the plaintiff is good and marketable, or whether such a reasonable doubt in respect to its validity has been established by the evidence as to entitle the defendant to be relieved from his purchase.

Under the contract of sale, the defendant was entitled to a conveyance which should vest in him a good and marketable title to the entire premises described in the contract. It is well settled that a title, to be marketable, must be free from reasonable doubt. This established rule has frequently been applied where it appeared that the title depended upon a question of fact, essential to its validity, in respect to which the facts appearing at the time of the contract of sale might be changed upon a new inquiry, or were open to opposing inferences. It has also been applied where it appeared that a question of law, essential to the validity of the title, was involved, in respect to which there were grounds for judicial doubt, or which could be properly determined only in an action where all the parties interested were before the court, and not in an action or proceeding between a vendor and purchaser. Atk. Titles, 419; Lowes v. Lush, 14 Ves. 548; Shriver v. Shriver, 86 N. Y. 575, 584, 585; Fleming v. Burnham, 100 N. Y. 1, 10, 2 N. E. Rep. 905; Vought v. Williams, 120 N. Y. 253, 24 N. E. Rep. 195; Moore v. Williams, 115 N. Y. 586, 22 N. E. Rep. 233; Jordan v. Poillon, 77 N. Y. 518; Campbell v. Stokes, 66 Hun, 381, 21 N. Y. Supp. 493. It is equally well settled that a purchaser is not entitled to demand a title absolutely free from all suspicion or possible defect. Spring v. Sandford, 7 Paige, 550; Hellreigel v. Manning, 97 N. Y. 56; Chase v. Chase, 95 N. Y. 373; Kip v. Hirsh, 103 N. Y. 565, 9 N. E. Rep. 317; Moser v. Cochrane, 107 N. Y. 35, 13 N. E. Rep. 442; Ferry v. Sampson, 112 N. Y. 415, 20 N. E. Rep. 387; Insurance Co. v. Wocds, 121 N. Y. 302, 24 N. E. Rep. 602; Cambrelleng v. Purton, 125 N. Y. 610, 26 N. E. Rep. 907; Todd v. Bank, 128 N. Y. 636, 28 N. E. Rep. 504; Chwatal v. Schreiner, (Sup.) 23 N. Y. Supp. 206. And the rule is the same at law as in equity, (Moore v. Williams, 115 N. Y. 586, 22 N. E. Rep. 233.) and as to judicial sales and private sales. In Spring v. Sandford, supra, Chancellor Walworth says, in respect to a judicial sale:

"The court, in giving a title to the purchaser, does not undertake to give a title which can by no possible state of facts be defeated. It only assumes to give such a title as a purchaser at a private sale could not legally object to receive."

The case is cited with approval in Moser v. Cochrane, supra, where the court held that, upon a question as to the sufficiency of a title offered by a vendor to a purchaser under a contract of sale, evidence of the opinion of conveyancers that the title was unmarketable was inadmissible, saying, "If the facts proved justified the inquiry, the question was one for the court to answer."

The principle established by the authorities must be applied in view of the circumstances of the particular case in reference

to which it is invoked; and where the facts connected with the title, as to its acquisition or transmission, are found to be determined by positive evidence, or by such controlling presumptions that they cannot be changed upon any new inquiry, or where the law is ascertained to be so well settled as to preclude any reasonable doubt of its binding force as a judicial rule, the hesitation or apprehension of the purchaser cannot prevail against the reasonable certainty of the validity of the title. The solution of the question may involve close scrutiny and careful research, with some attending elements of diversity in adjudged cases and expressed judicial opinions, as in the case of Belmont v. O'Brien, 12 N. Y. 394, where the question related to the alienability of lands held in trust, in respect to which differences of judicial opinion were recognized by the court, and its decision, requiring the purchaser to complete the purchase, was against the dissent of two of the judges. The question is whether, in legal contemplation, the doubt claimed to affect the validity of the title is or is not a reasonable doubt. There must be a real question and a real doubt. Fleming v. Burnham, 100 N. Y. 1, 10, 2 N. E. Rep. 905. And when, after testing the alleged doubt by rules of law so well established as to lead by their application to a conclusive demonstration, it is made to appear that the title is good and marketable, beyond any reasonable doubt, the purchaser will be held to perform his contract. Guided by the above rules, the present inquiry will be pursued as to both branches of the contention between the parties, the first of which relates to the sup posed doubt cast upon the title by the question whether the infant children of Ezra R. Goodridge were personally served with process in the equity suit in which they were defendants, and in which the sale of the premises affected by the suit was decreed to be made, and was made. This inquiry necessarily assumes that such service of process was a jurisdictional fact essential to the validity of the decree of sale.

It appeared at the trial that Ezra R. Goodridge, before and at the time of his death, August 20, 1867, was a member of the firm of Ezra R. Goodridge & Co., doing business in the city of New York, composed of himself, his brother Francis Goodridge, and Franklin F. Randolph. Ezra R. Goodridge died intestate, a resident of Westchester county, N. Y., leaving, him surviving, his widow, Mary C. Le Roy Goodridge, and two infant children, Mary Read Goodridge and Ezra Read Goodridge, his only heirs at law, who were at the time of his death of the ages of two and three years, respectively. Letters of administration on his estate were issued to his widow. He was the apparent owner, at his death, of several parcels of real estate in the city of New York, of which the premises in question formed a part. After his death the firm of Drake, Kleinwort & Cohen, of London, England, creditors of Ezra R. Goodridge & Co., commenced actions in the supreme court of the state of New York against Francis Goodridge, the sole sur vivor of the firm, (Franklin F. Randolph having died September 18,