Seybolt v. N. Y., L. E. & W. R. R. Co. 95 N. Y. 570..

Smith v. Saratoga Co. M. F. Ins. Co.. 1 Hill, 497..

Standard Oil Co. v. Triumph Ins. Co.. 64 N. Y. 85

Van Vechten v. Keator..

Vance v. Lowther....

...

52 N. Y. 12..
Hopk. 569.

317

80

Van Valkenburgh v. Lenox F. Ins. Co. 51 N. Y. 465..

420

CASES DECIDED

IN THE

COURT OF APPEALS

OF THE

STATE OF NEW YORK,

COMMENCING OCTOBER 6, 1885.

CHARLES E. FLEMING et al., Respondents, v. ELBERT L. BURN-
HAM et al., SIMON STERNBERGER et al., Executors, etc., pur-
chasers, etc., Appellants.

The purchaser of land at a judicial sale is entitled to a marketable title.
A title open to a reasonable doubt is not a marketable one, and the court
cannot make it one by passing upon an objection depending on a dis-
puted question of fact, or a doubtful question of law, in the absence of
the party in whom the outstanding right is vested.

A purchaser, therefore, on partition sale may not be compelled to complete
the purchase where there are such objections to the title.
The parties in a partition suit claimed title through a deed from executors
of McK., who died in 1828, seized of the premises, and whose will gave a
power of sale to his executors, "or such one or more of them as shall
take upon him or themselves the burthen of the execution of the will."
Four persons were named as executors; letters testamentary were issued
to three of them; two of them only joined in the deed, which was exe-
cuted in 1833; it described them as acting executors, reciting the author-
ity conferred by the will. McK. entered into possession in 1833, and he
and others occupied under his title until 1881, without any question as to
the validity of the executors' deed. Upon application of a purchaser at
the partition sale to be relieved from his purchase, it appeared that the
two executors, prior to the execution of the deed, did other acts as acting
executors. There was no evidence, however, of a renunciation of his
office by the other executor to whom letters were issued, or refusal on his
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