Kneller v. Lang

The defendant is entitled to a good, merchantable title,—one that he can sell in the market, and upon which he can, if he desires, procure. a loan of money. The record title is concededly imperfect, there being no record evidence that Philip Gauchat, under whom the plaintiffs claim title, ever had a deed of the premises. An instrument in writing, subscribed and sealed by the person from whom the estate or interest conveyed is intended to pass, is necessary to convey the fee to land in this state. The acceptance of the mortgage containing the clause mentioned did not convey a title to the premises to Gauchat. It was sufficient to raise a presumption that Gauchat had at least an equitable interest in the property, which might entitle him to a conveyance,' if one had not been made; but, to make it available, an action would be necessary, and the Sheldon heirs would have to be parties thereto in order to obtain an adjudication which would bind them. It is not incumbent upon the defendant to institute and prosecute such an action in order to perfect the title. It is contended by the plaintiffs that Philip Gauchat and his several grantees having been in the undisturbed possession of the premises for 20 years and more, and the plaintiff John F. Kneller being one of the grantees, his title to the premises is complete. Section 369, Code Civil Proc.1 The admitted facts fail to state that they were in possession, founding their claim upon a written instrument, as being a conveyance of the premises in question. It was necessary, in order that their possession of the premises for 20 years should ripen into a title, that it should be held under a claim *445of title exclusive of any other right, founding this claim upon a written instrument, as being a conveyance of the premises in question. There is nothing in the papers showing that these premises were thus held. While there are authorities holding that a purchaser at a judicial sale may be compelled to take a title obtained by a continual possession of 20 years, the title must be accompanied with proof of such possession. The burden of procuring the evidence to establish the continuous possession for the requisite time cannot be imposed upon the purchaser’. It was not contemplated by the parties entering into the contract that such a burden was to be imposed upon the defendant. Plaintiffs have, we think, failed to show that they have a merchantable title to the premises, and the defendant is entitled to judgment that he be relieved from fulfilling the contract. So ordered. All concur.