Page:The Green Bag (1889–1914), Volume 19.pdf/754

 PRESUMPTION OF DEATH

THE

EFFECT

OF

PRESUMPTION

MARKETABILITY

OF TITLE TO

OF

DEATH

REAL

UPON

ESTATE

By W. F. Meier. IT is practically a universal rule of law, both under the -common law and statute, that when a person has been absent from his home or residence, and has not been heard from by his friends and relatives for a period of seven years and more, there arises a presumption of death,' except in the case of children of tender age, incapable of absenting themselves of their own volition, but whose movements are governed by others.2 But that presumption has generally been recognized as rebut table,3 and only where there are no cir cumstances to rebut the presumption, is it obligatory upon the court or jury to sustain it.4 It is the purpose of this dis cussion to point out the effect of this pre sumption upon the marketability of title to real estate, and, incidentally, to note the opinion of courts upon the question as to a presumption of such a person dying unmarried and without issue. Suits in volving these questions arise generally in cases where the vendor or purchaser under contract creates a breach of that contract. And first, as to cases in which the court says that title to real estate is not market able, in spite of there being a long and con tinuous absence of a party supposed to 1 Am. and Eng. Ency. of Law (2nd Ed.) 1245, and many cases there cited. 2 Manley v. Pattison, 73 Miss. 417, 55 Am. St. Rep. 543; Keller v. Stuck, 4 Redf. (N. Y.) 294. 3 Scott v. McNeal, 154 U. S. 34; Smith v. Smith, 49 Ala. 156; Adams v. Jones, 39 Ga. 479; Seeds v. Grand Lodge, 93 Iowa 175; Flynn v. Coffee, 12 Allen (Mass.) 133; Dickens v. Miller, 1 2 Mo. App. 408; Wambaugh v. Schenck, 2 N. J. L. 214; Young v. Heffner, 36 Ohio St., 232; Keech v. Rinehart, 10 Pa. St. 240. 4 Biegler v. Supreme Council, 57 Mo. App. 419; Osborne. Allen, 26N.J. L. 388; Hoytu. Newbold, 45 N. J. L. 219, 46 Am. Rep. 757.

have an interest in the property. The case of Vought v. Williams,1 was one for specific performance. In March, 1853, one Giles B. Richardson died intestate, seized of the property in question, leaving his widow and two children. In 1863, one child, then 23 years of age, left home, and had not been heard from up to 1875, when the mother and remaining child conveyed the property to plaintiff's grantors, the deed reciting that they were the sole heirs at law of Giles B. Richardson. Plaintiff sold the property under contract to the defendant, agreeing to give "first class" title. The defendant refused to accept the plaintiff's title, whereupon this suit was instituted. After pointing out that the term "first class " as applied to the title, meant market able, the court goes on to define what a marketable title is, in these words: "A marketable title is one that is free from reasonable doubt. There is reason able doubt when there is uncertainty as to some facts appearing in the course of its deduction, and the doubt must be such as affects the value of the land, or will inter fere with its sale. A purchaser is not to be compelled to take property the possession of which he may be compelled to defend by litigation. He should have a title that will enable him to hold his land in peace, and, if he wishes to sell it, be reasonably sure that no flaw or doubt will arise to disturb its market value." 2 1120 N. Y. 253, 24 N. E. 195. 2 Citing: Commissioners v. Armstrong, 45 N. Y. 234; Shriver v. Shriver, 86 N. Y. 575; Hellreigel v. Manning, 97 N. Y. 56; Fleming v. Burnham, 100 N. Y. 1, 2 N. E. 905; Ferry v. Sampson, 112 N. Y. 415, 20 N. E. 387; Moore v. Williams, 115 N. Y. 586, 22 N. E. 233; Swayne v. Lyon, 67 Pa. St., 436; Dobbs v. Norcross, 24 N. J. Eq. 327.