Opinion
November, 1910.
I think that an affirmance of the judgment would not do complete justice in this case. It does not appear that on the final day for closing the title there was any suggestion that the defendant had title by reason of adverse possession, or that any facts were presented proving the same. In the answer the defendant did not assert such title. So far as appears defendant relied on its record title. The plaintiff brought this action, and before judgment the defendant conveyed the property, putting it beyond its power, although it might show title by adverse possession and receive judicial sanction of same, to give plaintiff the benefit thereof. I think that the defendant did not on the trial give evidence that it had such title, and I conclude that the plaintiff at least should have the deposit returned. The judgment should be reversed and a new trial granted, costs to abide the event. Woodward and Carr, JJ., concurred; Jenks and Burr, JJ., dissented. Judgment reversed and new trial granted, costs to abide the event.