PRESUMPTION OF DEATH is a mere possibility, or the alleged out standing right is but a mere improbable or remote contingency, which according to ordinary experience, has no probable basis, the court may, in the exercise of a sound discretion, compel the purchaser to complete his purchase. It has been well said that this discretionary power is to be carefully and guardedly exercised, and applied only in cases free from all reasonable doubt.1 But we think, from the undisputed evidence in this case, that the fact claimed to constitute the only defect in the title is such a very remote and improbable contingency and is such a slender possibility only, that it is a proper case for the application of the princi ple, and that the courts below were right in refusing to relieve the purchaser from the obligations to perform his contract. The fact that John Colville disappeared 17 years ago, and has not since been seen or heard from, would not alone be sufficient to obviate the objection to the title. But he disappeared in such a condition of health and mind, induced by a long course of dissipation, and under such circumstances, that his death in a very short time is the inevitable conclusion. . . . Under these circumstances 1 Citing: Ferry v. Sampson, supra; Moore v. Williams, supra; Insurance Co. v. Wood, 121 N. Y. 302, 24 N. E. 602
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the outstanding right upon which the pur chaser rests his refusal to perform has no probable basis, and cannot be said to con stitute any real defect in the title." From the foregoing cases, which are illustrative of practically every principle involved in cases that have been before the courts touching upon the effect of the pre sumption of death upon the marketability of title to real estate, the following may be deduced : 1. Mere absence from home without tidings, and with no other circumstance to substantiate the presumption of death, is not sufficient to render marketable the title to property in which the absent one, or his lawful issue, may have an interest. 2. Absence for a long period of years, upwards of the number of years fixed by statute after which the presumption of death is indulged, coupled with corrobora tive evidence pointing to a strong prob ability of actual death, will remove the cloud sufficiently to allow the enforcement of specific performance. 3. The disappearance and absence of a person, unmarried, under such circumstances as to warrant a finding for specific per formance, will also raise a presumption of death without marriage, and without lawful issue. Spokane, Wash., November, 1907.
