Page:The Green Bag (1889–1914), Volume 19.pdf/758

 PRESUMPTION OF DEATH to England a short time before the revolu tionary war, at the age of twenty-two, unmarried, and had not been heard of since the commencement of the war. He had threatened to drown himself, and it was thought by his acquaintances that he had drowned himself in the Thames. The Chancellor held, "that the lapse of time, and family ignorance of Catherine or John, for upwards of forty years before the sale in question, and the other circumstances, were sufficient to warrant this Court, or to warrant a jury, in a Court of law, and to render it the duty of either, to raise the presumption of death, without issue. That the title under the will of the plaintiff's testator was, there fore, to be deemed good." A recent case is that of Demarest v. Friedman.1 In that case a presumption of death was allowed to control under this statement of facts: In 1860, one Albert Demarest, the owner of an interest in land, embarked upon a whaling voyage of un certain duration. * From time to time his sister received letters from him. In 1865 she received information from the vice consul of the United States at Callao, Peru, of the death of one Albert Demarest, the letter conveying the information being addressed to Albert A. Demarest, father of the deceased. Nothing more was ever heard of him though a period of ' thirty-seven years had elapsed. The court in holding that the title was not unmarketable by reason of any outstanding claim of Albert Demarest, said : "On these facts, we have no doubt what ever that Albert Demarest, the son of Albert A. Demarest, and the brother of these plaintiffs died in December, 1864. The proof upon that subject is convincing, and authorizes us to conclude that he died unmarried and without issue. . . . That event occurred over thirty-seven years ago. No one has ever come forward to assert a claim to the interest which he de1 70 N. Y. S. 816.

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rived in the real estate under his father's will. The mere possibility that while he was on this whaling voyage in the Pacific, being attached to the ship from 1860 to November, 1864 ... he might have married at some port and might have had issue, is so remote and unreasonable a con jecture that it should not be allowed as an objection to title to real estate. If the existence of an alleged fact is a possibility merely, or a supposed outstanding right depends upon a very improbable and re mote contingency, the court has the discre tion to compel a purchaser to complete his purchase.1 This case is free from reason able doubt, and we are of the opinion that the discretion, if it is a matter of discretion, should be exercised to compel the purchaser to take title." The case of Day v. Kingsland 2 was an action for specific performance, the vendee having refused to accept the title to land because of the possible claim of certain heirs of a former owner. The record showed that two of the heirs had, more than thirty years previous, departed, and had not since been heard from, and that a third had gone away more than fifty years before. These matters had been set up in a petition for a partition of the property but the three heirs were not made parties. In decreeing specific performance, the court said: "No proof whatever has been offered in this cause showing the existence of either of these three children of Hannah, or of any heirs of any of them at the time of the partition proceedings; and, in the absence of any evidence in this suit rendering it probable that they or their heirs were then in existence, and should have been made parties, the vendee cannot set up the failure to make them parties in order to avoid the contract. The mere possibility of the existence of these heirs, or persons 1 Citing: Ferry v. Sampson, supra.
 * 57 N. J. Eq. 134, 41 Atl. 99.