OOP- 2- THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW GIFT OF MARKETABLE TITLE TO KSTATE BEING ALSO A TREATISE ON THE RIGHTS AND REMEDIES OF VENDORS AND PURCHASERS OF DEFECTIVE TITLES (As BETWEEN THEMSELVES) INCLUDING THE Law of Covenants for Title, the Doctrine of Specific Performance, and other Kindred Subjects THIRD EDITION BY CHAPMAN W. MAUPIN in OK THH WASHINGTON, D. C., BAR NEW YORK BAKER, VOORHIS & COMPANY 1921 COPYBIGHT. 1921, BY BAKER, VOORHIS & CO. T PREFACE. This work is a treatise on the law of title to real property, as that law is applied between vendor and purchaser. The material which composes it has been drawn principally from cases that have arisen between the buyer and seller of lands, and not from decisions in ejectment, or other possessory actions, though of course these latter cases have been availed of whenever they supply principles which affect the rights of the vendor or purchaser with respect to the title that is to be conveyed. The work is, therefore, in no re- spect a treatise upon real property, real property tenures, nor titles to real estate, in the sense in which this last term is commonly used, but is, instead, a collation of the laws and decisions which govern the rights of both parties with respect to the title, and prescribe the remedies of the purchaser ; precautionary, where it is anticipated that the title may prove defective, and compensatory, where it has proven to be so. Therefore, what circumstances will entitle a vendee to protection as a bona fide purchaser for value without notice, or will sustain his title in ejectment, or will sup- port his bill to remove a cloud from the title, have not been made the subject of separate and independent treatment in this work, and have been considered only so far as they have served to illustrate some principle of the law of defective titles, as applied between vendor and purchaser. That law is to be found dispersed through the text books, and through the reports and digests under the several heads of Vendor and Purchaser, Covenants for Title, Specific Performance, Equity Jurisprudence, Deeds, Titles to Real Estate, Real Property, Abstracts of Title, Judicial Sales. Subrogation, and many other minor heads of the law. The effort of the writer has been to collect the relevant matter from these different sources in one volume, and so to arrange and to dispose it as to render the whole easily accessible to the profession. Some difficulty has been experienced in choosing between several apparently appropriate titles for the work. That which has been selected, " Marketable Title," is satisfactory, but requires a word of explanation. The modern use and acceptation of this term it is believed justifies its employment as the title of a treastise upon [Hi] 755649 IV PREFACE. the rights of vendors and purchasers of defective titles, including as well the law of covenants for title as the equitable doctrine of doubtful titles. But originally the term was narrow and technical in its meaning, being used in equity to denote a title concerning which there was no reasonable doubt. The term was not known in the law courts, where titles were treated either as good or bad, and judgment rendered accordingly. Hence at law a title might be adjudged good which in equity the purchaser would not be com- pelled to accept. A small but learned and abstruse treatise upon the equitable doctrine of marketable titles by S. Atkinson was published in London and republished in America (1838) in the " Law Library;" from this work the limited and technical signifi- cance of the expression will appear. Of late years, however, the American courts have very generally applied the term " un- marketable " to any title which a purchaser cannot be required to acfept, without discriminating between titles absolutely bad and those merely doubtful, so that now " unmarketable " is commonly employed by the courts and the profession as a synonym for " de- fective " title. This is probably due to the fact that in most of the States legal and equitable relief are administered in one and the same court and form of action without distinction, or at least equitable defenses are allowed to be interposed in actions at law. Ilenco there is no longer any occasion for treating the expression " marketable title " as limited and technical in its character. The term then, or rather its negative form, being applicable to all defective titles whether absolutely bad or merely doubtful, it is apprehended that no inconvenience can arise from treating under that head such subjects as Covenants for Title, Estoppel, Action for Damages, Right to Perfect the Title, and so on, none of which belong to the original equitable doctrine of marketable titles, but obviously pertain to the law of defective titles. The author desires to acknowledge the many facilities for the prosecution of his labors which have lieen afforded him in a generous manner by his publishers, Messrs, linker. Yoorhi? & Co., of the city of New York ; and courtesies extended to him by Messrs. H. Krnnon Peter and F. S. Key Smith, in charge of the law librarv of the liar Association of the District of Columbia. C. W. M. WASHINGTON, D. C.. .1/Vn/ Ixf. PREFACE TO THIRD EDITION. Since the year 1907, more than twelve hundred decisions have appeared in the reports under the several heads of the law of "Vendors & Purchasers that are treated of in this work. These cases have been examined by the author and have been cited or referred to in their proper places throughout the work. Many of them have furnished valuable material for the enlargement of the text, and for the introduction of explanatory and illustrative notes. Many of them are no more than the reaffirmation of settled principles of law, but they have been cited because of the well-known desire of the practical lawyer to have a reference to every decision of his own court involving the particular question which he has under consideration. C. W. M. WASHINGTON, D. C., October, 1921. [v] ANALYSIS BOOK I. Of remedies in affirmance of the contract of sale. 1 Of affirmance by proceedings at law. I Of proceedings at law while the contract is executory. 1 Introductory. 1 Action for breach of contract. 11 Title which the purchaser may demand. 20 Implied and express agreements as to the title. 20 Sufficiency of the conveyance. 42 Caveat Emptor. 79 Covenants which the purchaser may demand 147 Abstract of title. 163 Waiver of objections to the title. 190 Tender of purchase money and demand of deed. 209 Measure of damages. 223 Action for deceit. 247 Of proceedings at law after the contract has been executed. 270 Action for covenant broken. 270 Covenants for seisin and for right to convey. 270 Covenant against incumbrances. 299 Covenant of warranty and for quiet enjoyment. 354 Covenant for further assurance. 476 Detention of purchase money on breach of the covenants of warranty and against incumbrances. 480 Of affirmance by proceedings in equity. 519 Specific performance of executory contracts. 519 Right of the purchaser to take the title with compensation for defects. 532 Right of the purchaser to perfect the title. 549 Specific performance of covenants for title. 557 Estoppel of the grantor. 561 Reformation of the conveyance. 603 [vii] Vlll ANALYSIS BOOK II. Of remedies in disaffirmance or rescission of the contract of sale. 626. Of rescission by act of the parties. 626 Of virtual rescission by proceedings at law. 632 Of proceedings at law where the contract is executory. 632 Of the right to recover back or to detain the purchase money. 632 Of the obligation of the purchaser to restore the premises to the vendor. 670 Of proceedings at law where the contract has been executed. 687 Detention of the purchase money on breach of the covenant of seisin. 687 Acceptance of conveyance without covenants for title. 705 Restitution of the purchase money where there are covenants. 734 Fraud in respect to the title. 739 Of rescission by proceedings in equity. 749 Where the contract is executory. 749 Suit for rescission and defenses to suit for specific per- formance. 749 The doctrine of doubtful titles. 767 Right of the vendor to perfect the title. 872 Right to require the purchaser to take the title with compensation 907 Where the contract has been executed. 917 Injunction. 917 Fraud and mistake. 938 CONTENTS. BOOK I. OF REMEDIES IN AFFIRMANCE OF THE CONTRACT OF SALE. OF AFFIRMANCE BY PROCEEDINGS AT LAW. OF PROCEEDINGS AT LAW WHILE THE CONTRACT is EXECUTORY. CHAPTER I. INTRODUCTORY. CHAPTER II. ACTION FOR BREACH OF CONTRACT. General principles; form of action. 1 Doubtful title in action for damages. 2 Purchaser in possession may sue. 3 Defenses to the vendor's action for breach of contract. 4 CHAPTER III. IMPLIED AND EXPRESS AGREEMENTS AS TO THE TITLE. Implied agreements: General rule. 5 Express agreements: General principles. 6 Terms and conditions of sales. 7 Auctioneer's declarations. Parol evidence. 8 English rules as to conditions. 9 Agreement to make a "good and sufficient deed." 10 Agreement to convey by quit claim. 11 Agreement to sell " right, title and interest." 12 Agreement to sell subject to liens. 13 CHAPTER IV. OF THE SUFFICIENCY OF THE CONVEYANCE TENDERED BY THE VENDOR. General observations. 14. Essential requisites of the conveyance. 15 Material, printing, etc. 16 Date. 17 Parties. 18 Words of conveyance. 19 X CONTEXTS. Description of the premises. 20 Description of the estate or interest conveyed. { 21 Signature and seal. $ 22 Attestation or acknowledgment f 23 (a) Venue of the certificate. 24 (b) Name and official designation of certifying officer, f 25 (c) Name of grantor. $ 20 (d) Annexation of deed. 27 (e) Jurisdiction of certifying officer. 28 (f) Personal acquaintance with grantor. 29 (g) Fact of acknowledgment. $ 30 (h) Privy examination of wife. $ 31 (i) Explanation of contents of deed. 32 (k) Voluntary act of wife. 33 ( 1 ) Wish not to retract. $ 34 (m) Reference to official seal. 35 (n) Date of certificate. 36 (o) Signature of officer. 37 (p) Abbreviation of official designation. 38 (q) Seal of officer. $ 3ft (r) Surplusage nnd clerical mistakes. $ 40 (s) Amendment of certificate. 41 Reservation, restrictions and conditions. 5 42 Waiver of objections to the conveyance, i 43 CHAPTER V. CAVEAT EMPTOB. General observations. I 44 Application of the maxim to judicial sales: Inherent defects of title, f 45 Effect of confirmation of the sale. $ 46 Exceptions to the rule. $ 47 Fraud as it affects rights of purchasers at judicial sales. | 48 Errors and irregularities in the proceedings. Collateral attack, f 40 Want of jurisdiction. 5 SO Matters occurring after jurisdiction has attached. | 51 Fraud as ground for collateral attack, f 52 Sales by executors and administrators: Snl>s in pursuance of testamentary powers, f 53 Sale* in pursuance of judicial license, f 54 Fraud on thr ; part of personal representative. I 55 Want of jurisdiction. Errors and irregularities, f 66 Sheriff's salon: Want of title in execution defendant: General rules, i 57 Exceptions. I 53 Fraudulent representations. I 59 Right* of purchaser from purchaser tinder execution. I 60 CONTENTS. XI Sheriff's sales Continued. Title under void judgment. 61 Title under void sale. 62 Tax sales. 63 Sales by trustees, assignees, etc. 64 Subrogation of purchaser at judicial aad ministerial sales: Where the sale is void. 65 Where the sale is valid. 66 CHAPTER VI. COVENANTS WHICH THE PURCHASE HAS A RIGHT TO DEMAND. Usual covenants. 67 From grantors in their own right. 68 From fiduciary grantors. 69 From ministerial grantors. 70 CHAPTER VII. ABSTRACT OF TITLE. In general. 71 Root of title. 72 Duty to furnish abstract. 73 Property in the abstract. 74 Time in which to examine the title 'and verify the abstract. 75 Summary of the various sources of objections to title. 76 Objections appearing from the instruments under which title is claimed. 77 Objections which appear from the public records. 78 Objections which appear upon inquiries in pais. 79 CHAPTER VIII. WAIVER OF OBJECTIONS TO TITLE. In general. 80 Waiver by taking possession. 81 Laches of purchaser. 82 Waiver by continuing negotiations. 83 Waiver in cases of fraud. 84 Waiver by purchasing with notice of defect. 85 CHAPTER IX. TENDER OF PERFORMANCE AND DEMAND FOR DEED. General rule. 86 Exceptions. 87 Duty of the vendor to tender performance. 88 Pleadings. 89 iil CONTEXTS. CHAPTER X. MEASURE OF DAMAGES FOB INABILITY TO CONVEY A GOOD TITLE. General observations. 90 Where the vendor acts in good faith: Flureau v. Thornhill. Hopkins v. Lee. 91 Barter contracts. 92 Expenses of examining the title. 93 Interest. 94 Rents and profits. 8 95 Improvements. 96 Where the vendor acts in bad faith. 97 Where the vendor expects to obtain the title. 98 Where the vendor refuses to perfect the title. 99 Liquidated damages. 100 CHAPTER XI. ACTION AGAINST THE VENDOR FOB DECEIT. General principles. 101 What constitutes fraud with respect to the title: Concealment of defects. 102 Willful or careless assertions. 103 Defects which appear of record. 104 nee of fraudulent intent. 105 Statements of opinion. 106 Pleading. 107 OF A i i II:.MA.\( K BY PROCEEDINGS AT LAW AFTER THE CONTRACT HAS IJEKN EXECUTED ACTION FOR COVENANT BROKEN. CHAPTER XII. OF THE COVENANT FOB SEISIN. Form and effect. 108 What collet it lite* a breach. 109 Aksignability of tlii> imciiant: In general, f 110 Doe* not run with (lie land. 111 itraiy rule. Diriiiiu- <.f continuing breach. 112 Possession nn;l ha\c |.a-e ire c,f damages. {110 Kurdm of proof, f 117 Pleading*. | 118 CONTENTS. Xlll CHAPTER XIII. COVENANT AGAINST INCUMBRANCES. Form. 119 Restrictions and exceptions. 120 Parol agreements. 121 What constitutes breach. 122 Definition of incuinbrance. 123 Pecuniary charges and liens. Effect of notice. 124 Outstanding interest less than a fee. 125 Easements or physical incumbrances. 126 Notice of easement at time of purchase. 127 Assignability of this covenant, 128 Measure of damages : General rules. 129 Where covenantee discharges the incumbrance. 130 Damages cannot exceed purchase money and interest. 131 Where incumbrance is permanent. 132 Pleading and proof. 133 CHAPTER XIV. COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. Form. 134 Construction and effect. 135 Qualifications and restrictions. 136 When implied. 137 Parties bound and benefited: Married women. 138 Heirs and devisees. Joint convenantors. 139 Personal representatives. 140 Who may sue for breach. 141 What constitutes breach : Tortious disturbances. 142 Eminent domain and acts of sovereignty. 143 Actual eviction : General rule. 144 Entry by adverse claimant. Legal process. 145 Constructive eviction: Inability to get possession. 146 Vacant and unoccupied lands. 147 Surrender of possession. 148 Hostile assertion of adverse claim. 149 Purchase of outstanding title. 150 Hostile assertion of adverse claim. 151 Loss of incorporeal rights. 152 XIV CONTEXTS. Covenant of warranty runs with the land: General rule. 153 Assignee may sue in his own name. 154 Separate actions against original covenantor. 155 Release of covenant by immediate covenantee. 156 Quit claim passes benefit of covenant. $ 157 Immediate covenantee must have been damnified. $ 158 Remote assignee may sue original covenantor. 159 Mortgagee entitled to benefit of covenant. 1GO Original covenantor must have been actually seised. 1(51 Assignee not affected by equities between original parties. $ 102 Covenant extinguished by reconveyance to covenantor. 1C3 Measure of damages: General rule. 164 New England rule. 165 Amount to which assignee is entitled. 166 Consideration may be shown. 167 Where covenantee buys in paramount title. 8 168 Loss of term for years. 169 Eviction from part of the estate. 170 Improvements. 171 Interest on damages. 172 Costs. 173 Counsel fees and expenses. 174 Notice of In . till- suit and request to defend. 175 Pleading and burden of proof. $ 176 Covenant for quite enjoyment. $ 177 CHAPTER XV. COVENANT FOR FURTHER ASSURANCE. In general. $ 178 Breach. Estoppel. Assignability. Damages. 179 CHAPTER XVI. DETENTION OF THE PURCHASE MONEY WHERE THERE HAS BEEN A BREACH Of THE COVENANTS FOB TITLE. General rule. | 180 Merger of prior agreements in covenant* for title. 181 Purchase with knowledge of defect. $ 182 Recoupment. $ 183 Keroupment in foreclosure of purchase-money mortgage. 8 184 Partial failure of consideration. | 185 AftMimpftit to try title. | 186 What constitute* eviction. I 187 Discharge of im umbra noes. I 188 Rule in Texnu. | 180 Rule in South Carolina, i 190 Plending*. I 191 Re* u m.'. I 102 CONTENTS. XV OF AFFIRMANCE OF THE CONTRACT BY PROCEEDINGS IN EQUITY. CHAPTER XVII. SPECIFIC PERFORMANCE OF EXECUTORY CONTRACTS AT THE SUIT OF THE PURCHASER. In general. 193 Payment of the purchase money as condition precedent. 194 Laches of purchaser. 195 Damages in equity. 196 CHAPTER XVIII. RIGHT OF THE PURCHASER TO TAKE TITLE WITH COMPENSATION FOB DEFECTS. General rule. 197 Indemnity against future loss. 198 Indemnity against dower. 199 Exceptions to general rule. 200 Right of vendor to rescind on failure of the title. 201 . CHAPTER XIX. OF THE RIGHT OF THE PURCHASER TO PERFECT THE TITLE. By the purchase of adverse claims. 202 By the discharge of liens or incumbrances. 203 Subrogation of purchaser. 204 CHAPTER XX. OF SPECIFIC PERFORMANCE OF COVENANTS FOB TITLE. General rules. 205 Covenant against incumbrances. 206 Conveyance of after-acquired estate. 207 CHAPTER XXI. ESTOPPEL OF THE GRANTOB. General rules. 208 After-acquired estate must be held in same right. 209 Mutual estoppels. 210 Estoppel of mortgagor. 211 Effect of void conveyance as an estoppel. 212 Effect of estoppel as an actual transfer of the after-acquired estate. 213 Rights of purchaser of the after-acquired estate from the covenantor. 214 Compulsory acceptance of the after-acquired estate in lieu of damages. 215 What covenants will pass the after-acquired estate. 216 Estoppel not dependent on avoidance of circuity of action. 217 Effect of quit claim by way of estoppel. 218 Estoppel of grantee. 219 Resume. 220 XVI CONTENTS. CHAPTER XXII. REFORMATION OF THE CONVEYANCE. When granted and when denied: General principles, g 221 Mistake of fact. 222 Mistake of law. 223 Mutuality of mistake. Fraud. 224 Mistakes resulting from negligence. 225 Nature and degree of evidence required. 22G Laches in application for relief. 227 Defective execution of statutory power. 228 In favor of and against whom relief may be had: In general. 229 In favor of grantor. 230 Purchasers and creditors. 231 Volunteers. 232 Married women. 233 BOOK II. OF REMEDIES ix RESCISSION ou DISAFFIRMA_NCE OF THE CON- TRACT OF SALE. CHAPTER XXIII. OF RESCISSION BY ACT OF THE PARTIES. General principles. S 234 Rescission by one party only. 235 Statute of Frauds. 236 OF VIRTUAL RESCISSION OF THE CONTRACT BY PROCEEDINGS AT LAW. OF PROCEEDINGS AT LAW WHERE THE CONTRACT is EXECU- TORY. CHAPTER XXIV. OF THE RIGHT TO RECOVER BACK OR PFTAI* THE PURCHASE MONET ON FAILURE OF THE TITLE. General principles. I 237 Restitution of the pun-haw money. 8 238 What notion purchaser should bring. S 230 Detention of the purehaw money. { 240 Exception* nnd qualifications, f 241 What objections to title may be made. I 242 CONTEXTS. XV11 Expenses of examining the title. 243 Burden of proof. Miscellaneous rules, 244 Right to rescind where the estate is incumbered. 245 Buying with knowledge of defect or incumbrance. 246 Chancing bargains. 247 Effect of accepting title bond. 248 Inquiry into consideration of sealed instrument. 249 Right to enjoin collection of purchase money. 250 Rights against transferee of purchase-money note. 251 Refusal of vendor to convey for want of title. 252 Tender of purchase money and demand of deed. 253 Offer to rescind. 254 Pleadings. 255 CHAPTER XXV. OF THE OBLIGATION OF THE PURCHASES TO RESTORE THE PREMISES TO THE VENDOR. General principles. 256 Vendor must be placed in statu quo. 257 Restoration of premises a condition precedent to rescission. 258 Rule in Pennsylvania, 259 Restoration of the premises in cases of fraud. 260 When purchaser need not restore the premises. Purchaser's lien. 261 Other exceptions. 262 Restoration of the premises where the contract is void. 263 OF VIRTUAL RESCISSION BY PROCEEDINGS AT LAW AFTEK THE CONTRACT HAS BEEN EXECUTED. DETENTION OF THE PURCHASE MONEY. CHAPTER XXVI. OF DETENTION OF THE PURCHASE MONEY WHERE THERE HAS BEEN A BREACH OF THE COVENANT OF SEISIN. General rule. 264 Qualifications of this rule. 265 Breach of covenant as to part of the premises. 266 CHAPTER XXVII. OF THE DETENTION OR RESTITUTION OF THE PURCHASE MONEY WHERE THH DEED CONTAINS NO COVENANTS FOR TITLE. General principles. 267 Exception. Void conveyances. 268 Merger of prior agreements in the deed. 269 Merger in cases of fraud, 270 Rule in Pennsylvania as to detention of the purchase money. 271 iii CONTENTS. CHAPTER XXVIII. OF RESTITUTION OF THE PURCHASE MONEY WHERE THERE ARE COVENANTS FOB TITLE. General rule. 8 272 Exceptions. 8 273. CHAPTER XXIX. OF DETENTION OR RESTITUTION OF THE PURCHASE MONEY IN CASES OF FRAUD. General rule. 274 Executed contracts. 8 275 Waiver of fraud, fi 270 OF RESCISSION BY PROCEEDINGS IN EQUITY. WHERE THE CONTRACT is EXECUTORY. CHAPTER XXX. OF THE SUIT FOB RESCISSION PROPER. General principles. 8 277 Defenses to suits for specific performance. 8 278 Placing the vendor tn statu quo. 8 279 Interest. Rents and profits. Improvements. 6 280 Pleading. 8 281 Parties. 8 282 CHAPTER XXXI. OF DOUBTFUL TITLES. General rules. 8 283 Classification of cases of doubtful titles. 8 284 Cases in which the title will be held free from doubt. 8 285 Doubtful titles at law. 8 286 Inconclusiveness of judgment or decree. 8 287 Special agreements as to the title. 8 288 Parol evidence to remove doubts. 8 289 Equitable title. Adverse claims. 8 290 Defeasible estates. 8 291 Title as dependent upon adverse possession. 8 292 Presumptions from lapse of time. 8 293 Title as affected by notice. 8 294 Burden of proof. 8 295 Illustrations of the foregoing principles. 8 290 Errors and irregularities in judicial proceedings. 8 297 Sale of the estates of persons under disabilities, f 288 Want of parties to suits. 8 299 Defective conveyances and acknowledgments. Imperfect registration. fl 300 Construction of deeds and wills. 8 301 Competency of parties to deeds. 8 302 Title as dependent upon intestacy. Debts of decedent. 8 303 CONTENTS. XIX Incumbrances. 304 Admitted incumbrances. 305 Incumbrances which make the title doubtful. 306 Apparently unsatisfied incumbrances. 307 Encroachments and deficiencies. 307a CHAPTER XXXII. OF THE RIGHT OF THE VENDOR TO PERFECT THE TITLE. Before the time fixed for completing the contract. 308 After the time fixed for completing the contract. 309 Exceptions: (1) Where time is material. 310 (2) Where the covenants are mutual and dependent. 311 (3) Waiver of the right. 312 (4) Loss and injury to the purchaser. 313 (5) Fraud of the vendor. 314 (6) Want of colorable title. 315 (7) Laches of vendor. 316 (8) Effect of special agreements. 317 (9) Effect of notice and request to perfect the title. 318 In what proceedings the right may be asserted. 319 Reference of the title to master in chancery: When directed. 320 When refused. 321 At what stage of the proceedings reference may be made. 322 Procedure. Costs. 323 Interest on the purchase money while title is being perfected. 324 CHAPTER XXXIII. OF THE RIGHT OF THE VENDOR TO REQUIRE THE PURCHASER TO TAKE THE TITLE WITH COMPENSATION FOR DEFECTS. General rule. 325 Exceptions. 326 Indemnity against future loss. 327 CHAPTER XXXIV. WHERE THE CONTRACT HAS BEEN EXECUTED. OF THE REMEDY BY INJUNCTION AGAINST THE COLLECTION OF THE PURCHASE MONEY. General observations. 328 Fraud on the part of the grantor. 329 Want of opportunity to defend at law. 330 Insolvency or non-residence of grantor. 331 Where the estate is incumbered. 632 Foreclosure of purchase-money mortgage. 333 Where there are no covenants for title. 334 Temporary and perpetual injunction. 335 Resume. 336 Where there is no present right to recover substantial damages for breach of the covenants. 337 XX CONTENTS. CHAPTER XXXV. OF FRAUD AND MISTAKE. Fraud on the part of the grantor. 338 General principles: Damages in equity, f 339 Mistake of fact: General rule. $ 340 Negligence of purchaser. 341 Immaterial mistakes. 342 Mistakes as to quantity, f 343 Mistake of law: General rule. 344 Distinction between ignorance of law and mistake of fact. 345 Erroneous construction of devise or grant. 8 340 Where the construction of the law is doubtful. 347 Misrepresentation of the law by the vendor, 348 TABLE OF CASES [REFERENCES ARE TO PAGES] A. Abate v. Bianco, 848 Abbott v. Allen, 272, 275, 294, 297, 485, 487, 694, 934 Abbott v. Fellows, 867 Abbott v. Hills, 414 Abbott v. James, 785, 844 Abbott v. Rowan, 399 Abby v. Goodrich, 413 Abel v. Hethcote, 798 Abendroth v. Greenwood, 36 Abercombe v. Owings, 516 Aberdeen v. Blackman, 301 Abernathy v. Boazman, 276, 361 Abernathy v. Phillips, 226 Able v. Chandler, 116 Abner v. York, 933, 934 Abraham v. Mieding, 806 Abrams v. Rhoner, 806, 814 Ackerman v. Smilev, 595 Ackley & Co. v. Hunter, 270, 391 Acme Realty Co. v. Schinasi, 870 Adair v. McDonald, 624 Adam v. McClintock, 572 Adami v. Backer, 826, 829 Adams v. Baker, 363 Adams v. Conover, 275, 407, 444 Adams v. Cox, 425, 459 Adams v. Fairbain, 647 Adams v. Gibney, 372 Adams v. Heathcote, 197, 199 Adams v. Henderson, 853 Adams v. Jarvis, 266 Adams v. Jordan, 511 Adams v. Kibler, 86 Adams v. Messenger, 533 Adams v. Reed, 604, 699 Adams v. Rhoner, 809 Adams v. Ross, 367, 596 Adams v. Smith, 145 Adams v. Stevens, 622 Adams v. Valentine, 853, 914 Adamson v. Rose, 226 Aday v. Echols, 530 Addleman v. Mormon, 928 Adkins v. Gillespie 795, 808, 810 Adkins v. Tomlinson, 276, 292 Adler v. Kohn, 216 Agan v. Shannon, 109 Agens v. Koch, 852, 865, 873 Aiken v. Franklin, 274 Aiken v. McDonald, 431, 436, 449 Aiken v. Sanford, 35 Aiple &c. R. E. Co. v. Spelbrink, 321 295, 538 Ake v. Mason, 327 Akerly v. Vilas, 690 Ala. Life Ins. Co. v. Boykin, 70 Albright v. S'chwabland, 388 Albro v. Garland, 871 Alday v. Rock Island Co., 122 Alden v. Parkhill, 509 Alexander v. Kerr, 203 Alexander v. McAuley, 706 Alexander v, Merry, 66 Alexander v. Mills, 775, 777, 779 Alexander v. Newton, 607 Alexander v. Schreiber, 336 Alexander v. Staley, 459 Alexander v. Utley, 201, 627 Alger v. Anderson, 943 Alkus v. Goettmann, 843 Allaire v. Whitney, 747 Allemong v. Gray, 366 Allen v. Adams, 192, 196, 671, 753, 765, 880 Allen v. Allen, 283 Allen v. Anderson, 226, 229, 609 Allen v. Atkinson, 171, 646, 819 Allen v. Denoir, 70 Allen v. Elder, 609 Allen v. Hammond, 945 Allen v. Hazen, 153 Allen v. Holton, 367, 596 Allen v. Hopson, 652, 744, 920 Allen v. Kennedy, 283, 410 Allen v. Lee, 304, 362 Allen v. Little, 286. 412, 415 Allen v. Miller, 402, 406, 426, 439 Allen v. Milling Co., 796 Allen v. McKeon, 791, 792 Allen v. Pegram, 483, 705 Allen v. Phillips, 659, 799, 806 Allen v. Sayward, 586 Allen v. Talbot, 940, 942 Allen v. Taylor, 361 Allen v. Thornton, 921, 923 Allen-West Com. Co. v. Patrick, 322 Allen v. Yeater, 153 Allinder v. Bessemer Co., 426 Ailing v. Vanderstucken, 859, 881 Allis v. Nininger, 394, 395 Allison v. Allison, 363, 386 Allison v. Shilling, 538, 542 Allstead v. Nicoll, 880 [xxi] XXII TABLE OF CASES [REFERENCES ARE TO PAGES] Almy v. Hunt, 312 Alpern v. Farrell, 212, 215, 801 Alpha Cera. Co. v. Shirk, 812 Alston v. Pieerson, 300 Altemus T. Nichols, 572 Altgelt v. Mernitz, 112 Altman v. McMillin, 853 Alvarez v. Brannan, 13, 585, 718, 889 Alvord v. Waggoner, 372, 387 Alwood v. Fagan, 790 American Assoc. v. Short, 694 American Sav. Bank v. Helgesen, 571 Ames v. Cosby, 343, 402 Amick v. Bowyer, 660 Amos v. Cosby, 343, 402 Anderson v. Anderson, 187 Anderson v. Casey Co., 597 Anderson v. Cresfon L. Co., 874 Anderson v. Foulke, 82 Anderson v. Knox, 343, 344, 406 Anderson v. Lincoln, 203, 484, 703. 932 Anderson v. Long, 714 Anderson v. Merrill Co., 454 Anderson v. Ohmmtka, 645, 675 Anderson v. Snyder, 907 Anderson v. Strasburger, 172, 792, 876, 878 Anderson v. Washabaugh, 388, 457, 717 Anderson v. Wilder, 574 Andrews v. Appel. 286, 338, 339, 346 Andrews v. Babcock, 762, 798, 872, 894 Andrews v. Richardson, 141, 144 Andrews v. Spurrs, 608 Andrews v. Wolcott. 414. 418 Andrews v. Word, 153, 866 Andrus v. Smelting Co., 257, 380, 453. 719 Ankeny v. Clark, 154, 762, 798, 906 911 Anniaton Lumber Oo. v. Griffith, 309, 311 Anonymous, 478 Anthony v. Rockefeller, 361, 393 Appleton v. Hanks. 161 Appowel v. MI mn mix. 415 Arhib. In re. 547 Archer v. Archer, 857 A rent. -en v. Moreland, 39, 789, 890 Arey v. Baer, 807 Argall v. Raynor. 785. 822, 831 A fledge v. Brook*. 220 Armstead v. Ifundly, 267, 944, 948 Armstrong'** App.. *120 Armstrong v. Breen, 879 Armstrong v. Coal Co., 157, 873 Armstrong v. I)mrby, 477, 478, 558 Armstrong v. Dunn, 218, 222 Armstrong v. Harshorn, 107 Armstrong v. Palmer, 49, 218, 873 Armstrong v. Trust Co., 315 Arnaud v. Austin, 789 Arnett v. Smith, 876 Arnold v. Carl. 928 Arnold v. Chamberlain, 327 Arnold v. Joines, 410, 426, 467 Arnold v. Nichols, 563 Arnstein v. Burroughs, 914 Aroian T. Fairbanks, 807 Arrison v. Harmstead, 188 Arthur v. Weston, 48 A. S. Abel! Co. v. Ins. Co., 815 Asay v. Lieber, 725 Ash v. Holder, 549 Ashbaugh v. Murphy, 78 Ashburn v. Watson,* 376. 462 Ashburner v. Sewell, 205, 547 Asher Lumber Co. v. Cornett, 410 Ashwell v. Ayres, 58 Ashwoith v. Mounsey. 30 Askew v. Bruner, 311 312 Astor v. Miller, 412, 418 Athens v. Nale, 358 Athey v. McIIcnry, 607 Atkins v. Hahrett" 38 Atkinson v. llager, 483, 923 Atkinson v. Taylor, 773. 836 Atlantic Ref'g "Co. v. Sylvester, 856 Atler v. Krskine, 390 Atteberry v. Blair. 164, 796, 811, 837 Atty.-Gen. v. Day. 534. 535, 915 Atty.-Gen. v. Purmort, 366 Atwood v. Chapman. 722 Atwood v. Fagan, 825 Atwood v. Frost, 120 Aufricht v. Northrup, 304, 305, 306, 362 Augdberg v. Meredeth. 886 Austin V. I tar n mil. 866 Austin v. Ewell, 521, 533 Austin v. McKinney, 402 Austin v. Richards! 363 Austin v. Shipman. 26 Auwerter v. Mathiot, 122, 130 Aven v. Beckom. 100 Averett v. Lipscombe, 27, 34, 790, 897 Averell v. Wilson. 600 Avery v. Aikens. 592 Avery v. Dougherty, 371, 382 Axtel v. Chase, 209, 395, 396, 604, 7. r >9 Aver v. Brick Co., 307 Aylett v. Afthton. 637, 015, 016 Ayling v. Kramer, 323 Avre v. Mitchell. 201 TABLE OF CASES xxm [REFERENCES ABB TO PAGES] B. Babbitt v. Doe, 107 Babcock v. Case, 253, 257, 678, 739, 758, 941 Babcock v. Collins, 48 Babcock v. Day, 730 Babcock v. Trice, 509 Babcock v. Urquhart, 227 Babcock v. Wilson, 40, 155 Bacchus v. McCoy, 272, 283, 287, 289 Bachman v. Ennis R. E. Co., 796, 847 Backhurst v. Mayo, 131 Backman v. Park, 892 Bacon v. Lincoln, 296, 297 Bacot v. Fessenden, 208, 804, 853, 854, 858 Baecht v. Hevesay, 646 Bagley v. Fletcher, 153 Bailey v. Hopper, 575 Bailey v. James, 39, 542, 753, 911 Bailey v. Miltenberger, 384 Bailey v. Murphy, 361 Bailey v. School, 94 Bailey v. Smock, 257, 258 Bailey v. iSnyder, 725 Bailey v. Timberlake, 622 Bain v. Fothergill, 226, 238, 531 Bainbridge v. Kinnaird, 537 Baird v. Goodrich, 692, 918, 924 Baird v. Laevison, 926 Baker v. Austin, 595 Baker v. Baker, 93, 754 Baker v. Bradt, 302 Baker v. Coe, 104 Baker v. Corbett, 229, 439, 550 Baker v. Howell, 503 Baker v. Hunt, 272 Baker v. Johnson, 390 Baker v. Massey, 609, 620 Baker v. Pyatt, 621, 624 Baker v. Railsback, 508, 539 Baker v. Savidge, 737 Baker v. Shy, 846, 876 Balch v. Arnold, 562 Baldridge v. Oook, 2,05 Balclry v. Parker, 912 Baldwin v. Brown, 534 Baldwin v. Drew, 148, 369, 514, 707 Baldwin v. MoGrath, 879 Baldwin v. Munn, 223, 226, 229, 23-1 Baldwin v. Kerlin, 609 Baldwin v. Salter, 878 Baldwin v. Smith, 393 Baldwin v. Trimble, 853, 866 Balfour v. Whitman, 318 Ballard v. Burroughs, 361 Ballard v. Child, 367 Ballard v. Johns, 119 Ballard v. Way, 32 Ballard v. Walker, 199 Ballentine v. Clark, 618 Ballou v. Clark, 352 Ballou .v. Lucas, 722 Ballou v. Sherwood, 806 Balmanno v. Lumley, 537, 911, 915 Baltimore, etc., Society v. Smith, 226 Bamford v. Harris, 495 Bandy v. Cortright, 371 Baney v. Killman, 534 Bangs v. Barrett, 906 Bank v. Bank, 940 Bank v. Baxter, 252 Bank v. Clements, 345, 440 Bank v. Ettinge, 758 Bank v. Loughran, 819 Bank v. Mersereau, 524, 575, 584 Bank v. Risley, 134 Bank of Col. v. Hagner, 197 Bank of U. S. v. Bank of Wash., 134 Bank of U. S. v. Cochran, 96 Bank of U. S. v. Daniel, 954 Bank of Winchester v. White, 461 Banks v. Ammon, 55, 116, 253, 726 Banks v. Walker, 499, 734, 705, 931 Banks v. Whitehead, 391, 472 Bankson v. Lagerlof, 308 Bannister v. Higginson, 107 Bannister v. Read, 634 Baptiste v. Peters, 26'2, 942, 944 Barada-Ghia Co. v. Keleher, 568 Barber v. Gery, 866 Barbour v. Hickey, 528, 539 Barbour v. Nichols, 228 Bardeen v. Markstrum, 486 Bardell v. Trustees, 376 Barden v. Stickney, 370 Bardes v. Herman, 646, 770 Bardsley's Appeal, 762 Barger v. Gery, 797 Barickman v. Kuykendall, 685, 915 Barker v. Circle, 588 Barker v. Denning, 321, 349 Barker v. Kuhn, 295 Barkhamstead v. Case, 706, 920 Barlow v. Delaney, 361, 385, 402 Barlow v. McKinley, 330, 332 Barlow v. St. Nicholas Bank, 316 Barlow v. Scott, 154 Barnard v. Brown, 806 Barnard v. Duncan, 158, 159 Barnard v. Lee, 886, 896 Barnes' Appeal, 533 Barnes v. Bartlett, 609 Barnes v. Lightfoot, 364 Barnes v U. P. R. Co., 255 Barnes v. Wood, 532 Barns v. Wilson, 326 XXIV TABLE OF CASES [REFERENCES ARE TO PAGES] Barnett v. Clark, 600, 924 Barnett v. Garnis, 196 Barnett v. Hughey, 160, 425 Barnett v. Keehn, 306 Barnett v. Montgomery, 391, 455 Barnett v. Shackelford, 67 Barnett v. Telephone Co., 774 Barnhart v. Hughes, 315 Barnum v. Lockhart, 833 Barnwell v. Harris, 778, 805 Barr v. Gratz, 575 Barr v. Greeley, 400, 441 Barre v. Flemings, 383 Barrere v. Bartet, 383 Barrett v. Churchill, 87 Barrett v. Gaines, 882 Barrett v. Hughey, 437 Barrett v. Porter, 389 Barrette v. Whitney, 777, 785, 796, 826 Barren v. Cooperage Co., 587 Barron v. Easton, 13 Barron v. Mullin, 82 Barrow v. Bispham, 35 Barry v. Guild, 392, 705 I'.ar-k y v. Posey, 562, 836, 867 Bartak v. Isvolt, 540 Bartee v. Tompkins, 117 Barth v. Ward, 314 Barthel v. Kngle, 534 Bartholomew v. Candee, 280 Bartle v. Curtis, 866 Bartlett v. Blanton, 838 Bartlett v. Farrington, 382 Bartlett v. London. 127, 659 J '.art Ictt v. Magee, 801 Bartlett v. Salmon, 854 Bartlett v. Tarbell, 484 Barton v. Bouvien, 911 Barton v. Long, 263 Barton v. Morris, 56, 573 Barton v. Rector. 197, 640 Baftford v. Pearson, 276 Bafthore v. Whialer, 113, 731 Mii-km v. Hnuner, 905 BM v. Gilliland, 534, 905 BM T. Stamen, 393, 437, 450 Bannett v. Lockard, 122, 140, 144, 145 Busett v. Welch, 313 Baston v. Clifford, 220, 634, 759 Batrhelder v. Curtfa, 346, 349 Batrhelder v. Maron. 767, 787 Batrhelder v. Sturgia, 321, 349 Bateman v. Hopkintt, 526, 528 Hat i- man v. .Tohnnon, 38, 49, 528 Battman'R Petition, 70 Bates v. Bate*, 616 Bates v. Delavan, 736, 753, 705, 943, 946, 947 Bates v. Foster, 367 Bates v. Lyons, 878 Bates v. Swiger, 521, 535, 556 Batley v. Foederer, 853 Batterman v. Pierce, 485 Hanoi-inn v. Smith, 361 Battle v. Rochester City Bank, 634 Baucher v. Stewart, 653 Baugh v. Price, 194 Baum v. Ihibois, 210, 213 Baumeister v. De Muth, 826, 879 Baumeister v. Silver, 812 Baxter v. Aubrey, 646, 819 Baxter v. Bradbury, 272, 292, 684, 585 Baxter v. -Camp, 160 Baxter v. Howell, 61 Baxter v. Lewis, 209 Baxter v. Ryerss, 415 Baylies v. Stinson, 777, 782, 783 Baynes v. Bernhard, 213 Baze v. Arper, 72 Beach v. Hud. R. L. Co., 852, 908 Beach v. Miller, 330 Beach v. Xordman, 397, 459, 460 Beach v. Packard, 405 Beach v. Waddell, 485, 507, 696 Beal v. Beal, 589 Beale v. Seively, 500. 934 Beall v. Davenport, 549, 601 Beall v. Taylor, 375 Beaman v. Simmons, 628 Beaman T. Whitney, 61 Beams v. Mila, 840 Bean v. Herrick, 253 Bean v. Mayo, 312, 339 Bear v. Fletcher, 811 Bearce v. Jackson, 272 Beard v. Delaney, 243, 245. 490, 690 Beardslee v. Underbill, 792, 836 BeardHley v. Knight, 279, 413, 414 Beawley'v. Phillips. 363. 410, 439 Beauchamp v. Handler, 898 Beauchamp v. Winn, *960 Beauman v. Whitney, 48 Beaumont v. Yeatman, 63 Beaupland v. McKeen, 448, 723, 724, 726 Beck v. Bridgman, 633 Beck v. Simmons, 196, 206, 601, 753, (195 Beck v. Staatu, 228. 890 Beck v. I'lrich, 712 Becker v. Krirxon. 794 Beckman v. Henn, 294 Beckman v. Park, 892 Berkwith v. Knuns, 807 TABLE OF CASKS XXV (REFERENCES ABE TO PAGES] Bedell v. Christy, 399 Bedell v. Smith, 17, 212, 386 Beddoe v. Wadsworth, 280, 380, 409, 414, 421 Beebe v. Swartwout, 278, 385, 398, 497, 600, 737, 687, 695 Beech v. Steele, 37 Beecher v. Baldwin, 432 Beeler v. Sims, 795, 810 Beer v. Leonard, 774 Beeson v. Beeson, 141 Beetem v. Follmer, 228 Begen v. Pettus, 887, 894 Behr v. Hurwitz, 21, 203 Beidelman v. Foulk, 727 Beioley v. Carter, 776, 777 Belcher v. Weaver, 70, 74 Belden v. Seymour, 160, 161, 437 Bell v. Adams, 575 Bell v. Duncan, 180 Bell v. Flaherty, 124 Bell v. Higgins, 386 Bell v. Holtby, 777 Bell v. Kennedy, 213 Bell v. Stadler, 638 Bell v. Sternberg, 898 Bell v. Thompson, 494, 545 Bell v. Twilight, 593, 596 Bell v. Vance, 199 Bell v. Woodward, 54 Bellamy v. Ragsdale, 236, 671 Bellefont Iron Wks. v. McGuire, 483 Bellinger v. Society, 383 Bellows v. Oheek, 464, 656, 657 Bellows v. Litchfield, 415, 453 Belmont v. Coman, 305 Belmont v. O'Brien, 845, 866 Bemis v. Bridgman, 706 Bemis v. Smith, 404 Bender v. Fromberger, 282, 289, 297, 366, 385, 429, 450 Benedict v. Oilman, 237 Benedict v. Hunt, 741 Benedict v. Williams, 892 Benjamin v. Hobbs, 757 Bennet Col. v. Gary, 520 Bennett v. Abrams, 491, 524 Bennett v. Adams, 524 Bennett v. Bittle, 382 Bennett v. Booth, 334 Bennett v. Caldwell, 143 Bennett v. Fuller, 11 Bennett v. Jenkins, 289, 345, 451, 453 Bennett v. Keehn, 368 Bennett v. Latham, 364, 451 Bennett v. Pierce, 930, 931. 936, 937 Ben-nett v. U. S. Land Co., 678 Bennett v. Waller, 477, 478, 086, 592 Bennett v. Womack, 150 Bennett's Case, 478 Benningfield v. Reed, 96 Bensel v. Gray, 136, 550 Bensinger v. Erhardt, 49 Benson v. Coleman, 657 Benson v. Cromwell, 200 Benson v. Markel, 610, 956 Benson v. Shotwell, 548, 681, 788, 810, 835 Benson v. Yellott, 94 Bentley v. Craven, 797, 800 Bentley v. Long, 141 Benton v. Sentell, 562 Bergen v. Eby, 614 Berger v. Crist, 651 Bergmann v. Klein, 868, 870 Bernardy v. Mortgage Co., 577, 588 Berrian v. Rogers, 121 Berry v. Armstead, 940 Berry v. Billings, 47 Berry v. Lowell, 621 Berry v. Van Winkle, 531 Berry v. Walker, 553 Berry v. Webb, 607 Berryman v. Schumaker, 855 Bertram v. Curtis, 326 Bess-Mar R. E. Co. v. Capell, 812 Bethell v. Bethell, 149, 264, 268, 287, 288, 483, 581, 706. Bethell v. MeKinney, 540 Bethune v. McDonald, 516 Betts v. Union Bank, 437 Bever v. North, 395, 401, 405, 461, 714 Beverly v. Lawson, 534, 900 Bevins v. Vansant, 580 Beyer v. Braender, 646 Beyer v. Schulze, 403, 406 Bianconi v. Smith, 269 Bibb v. Coal & Iron Co., 549 Bibb v. Prather, 681 Bibb v. Wilson, 546 Bickford v. Page, 272, 280, 352, 415 Biddey v. Biddle, 116 Bicknell v. Corn-stock, 805 Big Bend L. Co. v. Hutchings, 49, 417 Bierer v. Fretz, 232 Bigelow v. Hubbard, 322 Bigelow v. Jones-, 389 Bigler v. Morgan, 49, 77, 157, 233 Billick v. Davenport, 770 Binford's Appeal, 82, 822 Bingham v. Bingham, 303, 348, 955, 957 Bingham v. Maxey, 113 XXVI TABLE OF CASES [REFERENCES ARC TU PAGES] Bingham v. Weiderwax, 436 Binzer v. Epstein, 846 Birch v. Cooper, 802 Bircher v. Watkins, 292, 294, 297 Bird v. Cross, 503 Bird v. Smith, 81 Birdsall v. Walton, 527 Birkett v. De Van*, 325) Birney v. 1 1 aim. 415, 423 Bishop v. O'Connor, 81, 91, 117, 140, 144 Bitner v. Brough, 223, 226, 233, 239, 539 Bitzer v. Orban, 759, 761 Bixby v. Smith, 824 Black v. Aiuaii. 834 Black v. Barto, 475 Black v. Barton, 365 Black v. Coan, 340 Black v. Croft, 652 Black v. Dressel, 120 Black v. Grant, 54 Black v. Gregg, 61 Black v. Intejnafl Corp'n, 641, 801 Black v. Stone, 604 Black v. Walker, 657 Blackhurn v. Randolph, 619 Blackburn v. Smith, 166, 675 Black Hills, N. B. v. Kellogg, 502, 894 Blackie v. Hudson, 312 Blacklow v. Laws, 168 Blackmore v. Shelby, 584, 585, 889 Blackshire v. Homestead Co., 295 Blackwell v. Atkinson, 409 Blackwell v. Harrelson, 595 Blackwell v. Lawrence Co., 226, 229 Blair v. Claxton. 506 Blair v. Perry, 505 Blair v. Rankin, 916 Blake v. Kverett, 323 Blake v. O'Neal, 563 Blake v. Fhinn, 30, 911 Make v. Tucker. 5, 10, 004 Blakemore v. Kimmona, 845 Blakenlee v. Ins. Co., 586 Blanchard v. Blanchard, 322, 367, 390, 392, 445, 596 Rlanchard v. Brooks. 367 Blanchard v. Klli-. 581 Blanchard v. Hazeltine, 371 Blanchard v. Hoxie, 289, 207, 471 Mlanchard v. Stone, 202 Blanck v. Sadlier, 794, 858 Bland v. Bowie, 143 Bland v. Thomas, 473 Blanks v. Ripley. 511 Blanks v. Walker, 684 Blann v. Smith, 213 Blanton v. Ky. Dist. Co., 85, 218 Blasser v. Moats, 483 Bledsoe v. Doe, 46 Bledsoe v. Little, 53 Bletz v. Willis, 482 Blevins v. Smith, 322 Blied v. Barnard, 896 Bliss v. Negus, 713 Blivis v. Franklin Inv. Co., 318, 856 Blodgett v. Hitt, 141, 556 Bkmdeau v. Sheridan, 277, 326, 335, 391 Bloom v. Welsh, 125 Bloom v. \Volf, 160, 431 Blossom v. Knox, 425 Blossom v. Van Court, 312 Blue-Grass Realty Co. v. vShelton, 76 Blumenfeld v. St'ine, 240, 262 Blydenburgh v. Cotheal, 280, 385, 409 Boar v. McCormick, 730 Board of Commrs. v. Younger, 250 Board of Ed. v. Reilly, 842 Boardman v. Taylor, 621 Boas v. Farrington, 25, 168, 170 Boatman v. Wood, 425 Bobb v. Barnum, 50 Bodcaw Lumber Co. v. White, 774, 801 Bodine v. Taylor, 791 Bodley v. Bodley, 740 Bodley v. Botfley, 740 Bodley v. McChord, 37, 671 Boehm v. Wood, 879 Bogan v. Baughdrill, 533 Bogart v. Burkhalter, 718 Boger v. Bell, 215, 218 Boggess v. Robinson. 156 Boggs v. Bodkin, 808 Boggs v. Hargrave, 87, 88. 90 Bogy v. Shoab, 686, 088, 596 Bohanan v. Bohanan, 607 Bnhlcke v. Buchanan, 309 Bohon v. Bohon, 595 Bohm v. Fay, 806 Boice v. Coffeen, 340. 343, 426 Boiler Co. v. Gordon, 792 Bolen v. Lilly, 673 Bolgiano v. Cook, 80, 94 Bolinger v. Brake. 275, 292 Bollenbachcr v. Lee. 462 Bollis v. Beach, 564 Boiling v. Jones, 113, 114 Boiling v. Teel. 68 Bologniano v. Shot land. 804 Bolton v. Branch. 168, 646 Bolton v. .Schtwl Board. 805 Bond v. Montague. 549 Bond v. Ramsey. 110. 263. 265, 041 Bonhara v. Walton, 259. 884 TABLE OF CASES XXV11 [REFERENCES ARE TO PAGES] Bonner v. Johnston, 527 Bonner v. Lessly, 137 Booher v. Goldsborough, 264 Booker v. Bell, 356, 389, 425, 468 B'ooker v. Meriweather, 468, 484 Bool v. Mix, 275 Boon v. McHenry, 283, 292 Boone v. Armstrong, 571 Boone v. Chiles, 187 Boone v. Templeman, 667 Boorum v. Tucker, 84 Booth v. Cook, 72 Booth v. Millikin, 216 Booth v. Ryan, 202, 691 Booth v. Saffold, 212, 670 Booth v. Starr, 395, 416, 418 Booth v. Wyatt, 3:10 Boothby v. Hathaway, 272, 295 Boothby v. Waller, 527 Boothroyd v. Engles, 63 Bordeaux v. Carr, 516 Borden v. Borden, 860 Bordewell v. Colie, 403 Boreel v. Lawton, 300, 387, 391 Born v. Castle, 788 Boro v. Harris, 124 Bostick v. Winton, 123 Boston v. Binney, 503 Boston Steamboat Co. v. Manson, 383 Bostwick v. Beach, 533 Bostwick v. Lewis, 747, 719 Bostwick v. Williams, 322, 360, 385 Boswell v. Buchanan, 592 Boswell v. Mendheim, 778 Botsford v. McLean, 614 Botsford v. Wilson, 705 Bott v. Maloy, 817 Botto v. Berges, 43 Bottorf v. Smith, 275, 287, 488 Bouldin v. Wood, 607 Bourg v. Niles, 852 Bours v. Zachariah, 75 Bowden v. Achor, 747 Bowen v. Jackson, 213 Bowen v. Mandeville, 14, 747 Bowen v. Thrall, 149, 508, 510 Bower v. Cooper, 22 Bowers v. Real Est. Co., 315 Bowers v. Chaney, 94 Bowery N. B. v. Mayor, 792 Bowersock v. Beers, 218, 873 Bowie v, Brahe, 914 Bowles v. Stewart, 250 Bowley v. Holway, 501, 502, 508 Bowlin v. Pollock, 946 Bowling v. Benge, 3.73 Bowman v. Wittig, 55 Bowne v. Potter, 600 Bowne v. Wolcott, 299, 358 Boyce v. Grundy, 749, 751, 912 Boyce v. McCullogh, 621, 630 Boyd v. Bartlett, 312, 397 Boyd v. Boley, 790 Boyd v. Hallowell, 791 Boyd v. Hazeltine, 371 Boyd v. Hoffman, 218, 642, 850 Boyd v. McCullough, 727 Boyd v. Schlessinger, 13*6 Boyd v. Whitfield, 346 Boyd v. Woodbury Co., 790 Boyer v. Amet, 204, 550, 736 Boyer v. Porter, 926 Boykin v. Cook, 132 Boykin v. Rain, 70 Boylan v. Townley, 785 Boylan v. Wilson, 836 Boyle v. Edwards, 469 Boyle v. Rowand, 904 Boyles v. Bee, 39 Boyman v. Gutch, 783 Brackenridge v. Dawson, 103, 158 Brader v. Zbranek, 462, 940 Bradford v. Bradford, 609 Bradford v. Dawson, 74 Bradford v. Potts, 206, 729, 725 Bradley v. Chase, 267 Bradley v. Dibrell, 391, 734, 939 Bradley v. Dike, 315 Bradley v. Munton, 5&2 Bradshaw v. Atkins, 619, 6,25 Bradshaw v. Crosby, 343 Bradshaw's Case, 294 Bradway v. Miller, 795, 810, 833, 836 Brady v. Bank of Com., 498, 534,767 Brady v. Peck, 471 Brady v. Spurck, 272. 275, 281, 305, 468 Bragg v. Chilcote, 165, 195, 897 Braman v. Bingham, 343 Branch v. Hough, 313 Brand v. Odom, 739 Brandt v. Foster, 272, 275, 289, 400. 424, 425, 445, 505, 506, 706 Branger v. Manciet, 380 Branham v. San Jose, 142 Brannum v. Ellison, 661, 678 Brant v. Clifford, 841 Brantley Co. v. Johnson, 482 Brantley v. Kee, 56 Brass v. Vandecar, 320, 335, 349 Brassfield v. Walker, 814 Brashier v. Gratz, 886 Bratton v. Guy, 287 Braun v. Vollmer, 817 Brawley v. Copelin, 403, 446, 459 Breckenridge v. Hoke, 904 Breckenridge v. Waters. 707, 709 XXV111 TABLE OF CASES [REFERENCES ABB TO PAGES] Bree v. Holbcch, 705, 706 Breen v. Morehead, 585, 587. 593 Breithaupt v. Thurmond, 20, 296 Brennan v. Curtis, 939 Brereton v. Barry, 194 Brett v. Marsh, 554 Brewer v. Fox, 168 Brewer v. Herbert, 850 Brewer v. Parker, 482 Brewer v. Wall, 542 Brewton v. Smith, 609 Brick v. Center, 691, 725 Bricker v. Bricker, 3O7, 405 Bridge v. Wellington, 53 Bridge v. Young, 219 Briegel v. Moehler, 607 Briegel v. Muler, 621 Brigga v. Gillam, 196 Briggs v. Morse, 339 Brigham v. Evans, 228, 232 Bright v. Boyd, 143, 237 Brinckerhoff v. Phelps, 222, 241 Brink v. Mitchell, 39 Brisbane v. McCrady, 336 Brisbane v. Sullivan, 21, 534 Briscoe v. Mining Co., 481 Hristor v. McBean, 341 British-Am. Mtge. v. Todd, 451 Britt v. Marks, 268 Brittain v. McLain, 657, 659 Britton v. Hemingway, 563 Britton v. Ruffin, 401 Brizzolara v. Mosher, 524 Broadbelt v. Loew, 870 Broadway v. Buxton, 364, 606 Broadway v. Sidway, 671 Broadwell v. Phillips, 562 Brobst v. Brock, 141 Brock v. Hidy, 215 Brock v. O'Dell, 609, 957 Brock v. South-wick, 512 Brockenbrough v. Blythe, 904, 906 Brodie r. Mortgage Co., 310, 325 Brodie v. WatkinH, 506 Brody & Co. v. Hochstadter, 645, 826 Brokaw v. Duffy, 843 Bronk v. MrMalion, 837 Bronaon v. Coffin, 159, 310, 324, 349 Brooke v. Clarke, 900 Brooklyn v. Brooklyn City R. Co., 792 Brooklyn Park Com. v. Armstrong, 7:.7. M; ( Brookman v. Kurzman, 836 Brooks v. Black. 436, 454, 459 Brook* v. Chaplin, 60 Brooks v. Mohl, 288, 387, 439, 458 Brooks v. Moody, 312, 339, 343, 508. 923 Brooks v. Riding, 264, 952 Brooks v. Winkles, 462 Brown v. Allen, 388, 399 Brown v. Bank, 309 Brown v. Bellows, 43, 295, 860 Brown v. Blake, 581 Brown v. Brodhead, 339 Brown v. Brown, 141 Brown v. Cannon, 36, 807, 812, 813 Brown v. Carpenter, 275, 289 Brown v. Christie, 134, 138 Brown v. Combs, 131 Brown v. Connell, 555 Brown v. Cor son, 399 Brown v. Covilland, 35, 36 Brown v. Dickinson, 402, 404, 425 Brown v. Eaton, 215 Brown v. Farrar, 72 Brown v. Feagin, 474 Brown v. Frost, 87 Brown v. Gammon, 37 Brown v. Gordon, 741 Brown v. Haff, 788, 878, 880 Brown v. Harrison, 638 Brown v. Hearon, 451, 464 Brown v. Herrick, 267 Brown v. Jackson, 596 Brown .v. Lee, 216 Brown v. Lunt, 63 Brown v. Manning, 252 Brown v. Manter, 52, 574, 575 Brown v. McCormick, 577 Brown v. MoMullen, 465 Brown v. Met*, 409 Brown v. Montgomery, 252, 691 Brown v. Moore, 61 Brown v. Morehead, 714, 717 Brown v. Phillips, 572 Brown v. Pinniger, 198 Brown v. Reeves, 737 Brown v. Reichling, 628, 834 Brown v. Rice, 261 Brown v. Staples, 307, 413, 414, 419, 422, 564, 568, 570, 571 Brown v. Starke, 37 Brown v. Taylor, 391, 465. 466 Brown v. Thompson, 404, 439, 601 Brown v. Wallace, 81 Brown v. Witter, 633, 770, 836 Brown v. Yocum, 363 Browning v. Canal Co., 408 Browning v. Clymer, 209 Browning v. Kstes, 673 Browning v. Stillwell, 450 I'.i -.wiling. In re, 82, 138 Browning v. Wright, 152, 156, 366 Broylea v. Bell, 753 TABLE OF CASES XXIX [REFERENCES ARE TO PAGES] Bruce v. Luke, 592 Bruce v. Wolfe, 810 Bruegger v. Carter, 861 Brugman v. Charleson, 49 Bruington v. Barber, 405 Brumfield v. Palmer, 671, 755 Brumfit v. Morton, 32 Brummel v. Hunt, 128 Bruner v. Diamond, 77 Bruner v. Meigs, 751, 843 Bruns v. Schreiber, 330, 352 Brush v. Ware, 177 Brya v. Thomas, 882 Bryan v. Boothe, 239 Bryan v. Johnson, 512 Bryan v. Lewis, 520 Bryan v. Osborne, 203, 805 Bryan v. Ramirez, 66 Bryan v. Read, '84, 828, 911, 915 Bryan v. Salyard, 555 Bryan v. Swain, 48'9, 510 Bryant v. Booth, 262, 760, 940 Bryant v. Fairfield, 131 Bryant v. Hambrick, 227 Bryant, In re, 872, 890 Bryant v. Mosher, 282 Bryant v. Wilson, 155 Bryson v. Crawford, 634 Buchan v. Land Co., 772 Buchanan v. Alwell, 637, 696, 902 Buchanan v. Burnett, 256, 260, 261, 265, 940 Buchanan v. Lorman, 213, 215, 640, 759, 761 Buchanan v. Yudelson, 874 Buck v. McCaugMry, 913 Buck v. Waddle, 648 Buckel v. Auer, 593 Buckles v. Mouzon, 461 Buckhouse v. Crosby, 630 Buckingham v. Thompson, 679 Buckle v. Mitchell, 778 Bucklen v. Raster lik, 72, 218, 806 Buckles v. Northern Bank of Ky., 482 Buckley v. Dawson, 225 Buckmaster v. Grundy, 14, 220, 227 Buckner v. Street, 303, 304, 370, 706 Buell v. Tate, 482, 498, 508, 690, 928 Buffalo Coal Co. v. Vance, 678 Buford v. Adair, 565 Buford v. Guthrie, 695, 889 Bugajski v. iSikwa, 228, 238 Building Co. v. Fray, 277, 292, 477, 584 Bulkley v. Hope, 29 Bull v. Beiseker, 282 Bull v. Burton, 323, 326, 853, 854 Bull v. Weisbrod, 149 Bull v. Willard, 714 Bullard v. Bicknell, 801 Bullard v. Perry, 72 Bullitt v, Coryell, 313 Bullitt v. E. Ky. Land Co., 681 Bullitt v. Songster, 659 Bullock v. Adams, 529 Bullock v. Beemis, 750 Bullock v. Whipp, 621, 623 Bulow v. Witte, 95 Bumiberger v. Clippinger, 843 Bumnier v. Boston, 383 Bumpass v. Anderson, 368 Bumpass v. Platner, 485, 516, 694, 934 Bumstead v. Cook, 318 Bunch v. Johnson, 593 Bundy v. Ridenour, 340 Burbank v. Pillsbury, 324 Burbridge v. Sadler, 363 Burchard v. Hubbard, 570 Burchfield v. Brinkman, 456 Burk v. Brown, 303 Burk v. Hill, 330, 332, 336 Burk v. Serrill, 228, 239, 243, 539 Burk's Appeal, 539 Burke v. Beveridge, 578, 584 Burke v. Davies, 637, 667, 891, 892 Burke v. Elliott, 103, 105, 106 Burke v. Gummey, 41 Burke v. Johnson, 555 Burke v. iXichols, 365 Burke v. Ryan, 844 Burke v. Schreiber, 637 Burke v. Tim'ber Co., 380, 424 Burke v. Trabue, 330 Burkett v. Mumford, 695 Burkett v. Twyman, 562 Burkholder v. Farmers' Bank, 446 Burley v. Shinn, 646 Buriock v. Peck, 326 Burnell v. Firth, 774 Burnett v. Hamill, 94 Burnett v. McCluey, 58 Burnett v. Sulflow, 642 Burnett v. Wheeler, 32, 197 Burnham v. Laselle, 283 Burns v. Hamilton, 113, 114, 954 Burns v. Ledbetter, 132, 141 Burns v. Vereen, 397 Burns v. Witter, 21 Burr v. Greely, 388 Burr v. Hutchinson, 620 Burr v. Lamaster, 326 Burr v. Todd, 245, 479, 899 Burr ill v. Jones, 161 Burroughs v. McNeill, 559 Burroughs v. Oakley, 197, 198, 818 Burrow v. Scammel, 531, 532 XXX TABLE OF CASES [REFERENCES ARE TO FACES] Burrows v. Harter, 675 Burrows v. Locke, 250, 256 Burrows v. Stryker, 483 Burrows v. Yount, 217 Burruss v. Wilkinson. 403 Bur-ton v. Jackson, 590 Burt v. Wilson, 609 Burtners v. Keran, 562, 575 Burton v. Cowles, 364 Burton v. Perry, 816 Burton v. Reed, 425, 452, 581, 584 Burwell v. Brown, 32 Burwell v. Jackson, 20, 22, 38, 257, 261, 267, 782, 947 Burwell v. Sollock, 879, 912 Busby v. Treadwell, 206, 481, 923, 933 Bush v. Adams, 439 Bush v. Bush, 607, 622 Bush v. Cole, 241 Bush v. Collins, 555 Bush v. Cooper. 376, 524, 590 Bush v. Hicks, 616, 620 Bush v. Marshall, 878 Bushong v. .Scrimshire, 655 Bustard v. Gates, 96 Buswell v. Kerr Co., 49, 774 Butcher v. Peterson, 425, 445, 534, 952 Butcher v. Rogers, 586, 592 Butler v. Barnes, 409, 433, 454 Butler v. Gale, 329, 332 Butler v. Miller, 706, 707, 949 Butler v. O'Hear, 863 Butler v. Seward, 157, 572 Butte v. Riffe, 328, 359, 408, 483, 730 Butte Creek, etc., Co. v. Olney, 447 Butterfield v. Harris, 883 Butterfield v. Copper Co., 601 Butterfield v. Heath, 772, 802 Butterworth v. Volkenning, 382 Buttron v. TiM.itt-. 146 Butts v. Andrews, 786, 840 Byers v. Aiken. 209. 220 Bynes v. Rich, 280. 289, 290 Bui i irn v. Govan, 132 CabeH v. Grubba, 66 Cable v. Hoffman. 752 Cabrera v. Payne. 21, 25, 215 Cadiz v. Majors, 592 Cadmus v. Pagan, 312, 318 Cadwalader v. Tryon, 164 Cady v. Gale. 533 Oain v. Outline, 755 Cain v. Woodward, 133 Cake v. Peet, 616 Calcraft v. Roebuck, 191, 196, 907 Calder v. Chapman, 57? Calder v. Jenkins, 834, 855 Caldwell v. Bower, 403 Caldwell v. Kirkpatrick, 358, 385 Calhoun v. Belden, 757, 796 Cal. Real Est. Co. v. Walkup, 219 Calkins v. Williams, 550 CaManan v. Keenan, 361 Calton v. Lewis, 950 Calumet, etc., Canal Co. v. Russell, 73 Calvert v. Ash, 99 Calvert v. Sebright, 470 Cambrelleng v. Purton, 770, 816 Cameron v. Logan, 127 CamfieM v. Gilbert, 12, 14, 233, 645, 774, 781, 783, 791 Camp v. Morse, 221, 647, 604, 668, 891 Camp v. Pulver, 741 Campbell v. Bentley, 426 Campbell v. Brown, 117, 119 Campbell v. Carter, 952 Campbell v. Cronley, 534 Campbell v. Fleming, 193, 202 Campbell v. Harsh, 794 Campbell v. Haven, 318 Campbell v. Johnson, 608 Campbell v. McCahan, 84, 107 Campbell v. McClurc, 650 Campbell v. Lowe, 125, 141 Campbell v. Mcdbury, 486 Campbell v. Pruyn, 214 Campbell v. Shaw, 234. 446 Campbell v. Shields, 382 Campbell v. Shrum, 41, 653 Campbell v. Spears, 738 Campbell v. Watkins. 366 Campbell v. Whittinghara, 250, 259, 261, 267 Cannday V. Miller, 792 Candler v. Lunsford, 590 Cnnedy v. Marry, 609, 611, 617 Canton Co. v. B*. & O. R. Co., 198, 203 Cnntrcll v. Mobb, 646. 684. 936 Capehart v. Dowery, 82. 94 Capital Bank v. Hiintoon, 134, 135 Cap. City Inv'mt Co. v. Burnham, 326 Caporale v. Rubine, 891 Cap-tick v. Crane, 535 Carbrey v. Willis, 324 Carey v. Daniels, 325 Carey v. Guillow. 496 Carev v. Gundlefinger, 315, 649 Carlisle v. Carlisle, 71 Carlton v. Smith, 853 Carman v. Bedell, 826 TABLE OF CASES XXXI [REFERENCES ARE TO PAGES] Carnahan v. Hall, 724 Carne v. Mitchell, 560 Uarneal v. Lynch, 83 Carnes v. Swift, 562 Carney v. Newberry, 627, 667 Carpenter v. Bailey, 38 Carpenter v. Brown, 168, 221, 877 Carpenter v. Carpenter, 462 Carpenter v. Holcomb, 19 Carpenter v. Lockhart, 213, 246 Carpenter v. Schemerhorn, 588 Carpenter v. Stilwell, 134 Carpenter v. Strother, 87 Carpenter v. Thompson, 570 Carper v. Munger, 625 Carr v. Callahan, 252 Carr v. Dooley, 312, 314 Carr v. Roach, 168, 718 Carrabine v. Cox, 884 Carrico v. Froman, 6:61 Carrodus v. Sharp, 904 Carroll v. Carroll, 423 Carroll v. McKahary, 770 Carroll v. Mundy, 879, 882 Carroll v. Trust Co. 854 Carson v. Carson, 570 Carson v. Kelly, 512 Carter v. Beck 15, 507 Carter v. Carter, 516 Carter v. Chandron, 74 Carter v. Denman, 281, 322, 409 Carter v. Fox, 627, 639 Carter v. Morris, 825 Carter v. Morris B. & L. Asso., 800, 825 Cartwright v. Briggs, 482, 929 Cartwright v. Culver, 690 Carver v. Howard, 141 Carver v. Jackson, 587 Carver v. LaSalette, 622 Carver v. Louthain, 303 Carvill v. Jacks, 249, 429 Gary v. Gundlefinger, 315, 649 Cassada v. Slralbel, 390 Case v. Boughton, 742 Case v. Stipes, 574 Case v. Wolcott, 224 Casey v. Lucas, 483, 69'5 Cash v. Meisenheimer, 213 Cashman v. Bean, 534, 857 Cashon v. Faina, 81 Cass Co. v. Oldham, 623 Cassell v. Cooke, 842, 862, 886 Cassidy's Succession, 431 Castlefeerg v. Maynard, 844 Caswell v. Black 'River Mfg. Co., 196 199, 201 Caswell v. Wendell, 289 Cater v. Pembroke, 259 Gates v. Field, 459, 468 Cathcart v. Bowman, 311, 319, 332 Cathcart v. Sugenheimer, 142 C'atlin v. Hurlburt, 271, 284, 289 Cattell v. Corrall, 21, 774, 778 Gaulkins v. Harris, 451 Causton v. Macklew, 778, 805 Cavanaugh v. Casselman, 491 Cavanaugh v. McLaughlin, 856 Ceconni v. Rodden, 392, 433 Celestial Realty Co. v. Childs, 871 Cent. App. Co. v. Buchanan, 275, 378 Cerf v. Diemer, 815 Chabot v. Winter Park Res. Co., 528 Chace v. Gregg, 568 Chace v. Hinman, 301 Chamberlain v. Amter, 648 Chamberlain v. Lee, 88'5, 890 Chamberlain v. McClurg, 567 Chamberlain v. Meeder, 571, 590 Chamberlain v. Preble, 463, 464 Chambers v. Cochran, 127, 129 Chambers v. Cox, 483 Chambers v. Jones, 143 Chambers, v. Pleak, 404 Chambers v. Smith, 287, 398 Chambers v. Tulane, 753, 843, 850 Champion v. Brown, 521 Champlin v. Dotson, 549, 929 Champlin v. Layton, 262, 956, 957 Champlin v. Williams, 555 Chandler v. Brown, 393, 397 Chandler v. Spear, 64 Chapel v. Bull, 345 Chaplain v. Southgate, 3831 Chaplin v. Briscoe, 488 Chapman v. Brooklyn, 126i Chapman v. Fxidy, 663 Chapman v. Holmes, 281, 356, 408 Chapman v. Kimball, 281, 310' Chapman v. Lee, 168, 170, 220, 808, 811 Charbonier v. Arbona, 650 Charles v. Dana, 639 Charleston v. Blohme, 82, 86, 88, 91, 865 Charman v. Tatum, 351 Chartier v. Marshall, 244, 521 Chase v. Chase, 831 Chase v. Palmer, 46 Chase v. Peck, 682 Chase v. Weston, 413 Chastain v. Staley, 155 Chatfield v. Williams, 664 Chatham v. Lonsford, 565 Chauncey v. Leominster, 848 Chauvin v. Wagner, 68, 283, 287, 478, 565, 586 Chaves v. Bergere, 678 Cheesman v. Thome, 804, 907 Cheever v. Minton, 94 XXXI 1 TABLE OF CASES [REFERENCES ARE TO PAGES] Chenault v. Thomas, 387, 461, 472 Cheney v. Straube, 387, 400, 426, 471 Cherry v. Cherry, 594 Cherry v. Davis, 670, 674, 810 Chesman v. Cummings, 786 Chester v. Rumsey, 73 Chew v. Tome, 805, 815, 848 Chesterfield v. Jansen, 193 Chicago v. Rollins, 465 Chicago, Kans. & Neb. R. Co. v. Cook, 120 Chicago Title Co. v. MvDonald, 49 Chillis v. Alexander. 516 child- v. Lockett, 671 Childs v. McChesney, 589 Chinn v. Heale, 529, 533 Chitwood v. Russell, 367 Chopin v. Pollet, 849 Chouteau v. Allen, 66 Chrisman v. Partee, 840, 892 Christian v. Cabell, 38, 196, 861, 889, 891 Christian v. Stanley, 911 Christman v. Colbert, 607, 62f> Christy v. Ogle, 272, 275, 322, 349, 456 Christy v. Reynolds, 731 Church v. Brown, 151 Church v. Shanklin, 790 Churchill v. Moore, 70 Citizens' Bank v. Freitag, 126, 128 Clagett v. Crall, 261 Clanton v. Burges, 485, 702 Clapp v. Greenlee, 738 Clapp v. Herdmann, 272, 295, 440 Clare v. Lamb, 710 Clare v. Maynard, 225 Clark, In re, 848 Clark v. Anbury, 792, 807, S10, 811 Clark v. Baird,' 14. 24 Clark v. Baker, 303, 571, 588, 597 Clark v. Briggs, 755 Clark v. Clark, 563 Clark v. Cloghorn, 925 Clark v. Conroe, 275, 391, 408 Clark v. Croft, 640 Hark v. Drake, 620 Clark v. Faux, 30 Clark v. Fisher, 310, 320, 442 Clark v. Hardgrove, 534, 934, 935 Clark v. Harper, 391 Clark v. Hutzler, 836 Clark v. Jacobs, 682 Clark v. Johnson, 413 Clark v. Lambert, 562 Clark v. Lockwood. 131 Clark v. Lyons, 153 Clark v. Mumford, 513 cl.irk v. Parr, 425 Clark v. Perry, 339 Clark v. Post, 138, 715 Clark v. Redman, 37, 49, 149, 153, 855 Clark v. Rosario Min. Co., 754 Clark v. Seirer, 539 Clark v. Spelling, 482 Clark v. Swift, 286 Clark v. Weiss, 212, 657, 886 Clark v. \\ hitehead, 160, 397, 434 Clark v. Woolport, 807 Clark v. Zeigler, 319 Clarke v. Cleghorn, 925 Clarke v. Elliott, 527 Clarke v. Locke, 15, 222, 228, 673, 756 Clarke v. McAnulty, 385, 386, 306, 437 Clarke v. Priest, 336, 478 Clarke v. Scudder, 288 Clarke v. Thorpe, 260 Clarke v. Wilson, 137 Clarkson v. Skidmore, 442 Clason v. Bailey, 46 Claxton v. Gilben. 419 Claycomb v. Munger, 395, 402 Claypoole v. Houston, 607 Clee v. Seaman. 600 Clegg v. Lemessurier, 58 Clemens v. Loggins, 209, 210, 665, 670, 672, 872 Clement v. Bank, 275, 368, 415 Clement v. Burtia, 854 Clement v. Collins, 397, 460, 470 Cleveland v. Bergen B. & I. Co., 912 Cleveland v. Flagg, 573 Cleveland Park Co. v. Campbell, 308, 314 Cleveland v. Smith, 569 Click v. Green, 226, 376, 425 Clifton v. Charles, 238, 880 Clinoh River Co. v. Kurth, 61, 69 Cline v. Booty. 809, 810 Oline v. Catron, 96 Clinton v. Shugart, 649 Clive v. Beaumont. 22 Clody v. Southard, 846, 862, 868 Clopton v. Bolton, 665 Clore v. Graham, 311 Close v. Martin. 769 Close v. Stuyvpsant. 779 Close v. Zell! 714, 716. 731 Clough v. London. Ac. Ry. Co., 534 Clouse's Appeal. 841. 844 Clowes v. Higginson. 34 Clute- v. "Robinson, 37 Coal Crook Mining Co. v. Ross, 592 Cobb v. Hatfleld, 14 Cobb v. Klosterman. 293 Oobb v. Naval Stores Co., 563 v. Wellborn, 406 TABLE OF CASES XXX111 [REFERENCES ARE TO PAGES] Coburn v. Haley, 680, 797 Caburn v. Litehiield, 318, 343 Cochran v. Guild, 312, 314, 318 Cochran v. Pascault, 476, 477, 584 Cockerell v. Cholmeley, 194 Cocke v. Taylor, 228 Cockey v. Cole, 94, 97 Cockrell v. Bane, 371 Cockrell v. Proctor, 292, 294 Oockroft v. Railroad Co., 226, 233 Codman v. Jenkins, 503 Codrington v. Denham, 382 Coe v. Harahan, 157 Coe v. N. J. Mid. R. Co., 605, 611 Coe v. Persons Unknown, 596 Coffee v. Newson, 679, 739, 908, 915 Coffin v. Cook, 120 Coffman v. Huck, 450 Coffman v. Scoville, 930 Cogan v. Cook, 37 Cogel v. Raph, 176, 186, 188 Cogswell v. Boehm, 193, 909 Cogwell v. Lyons, 236 Cohen v. Woolard, 496, 696, Coit v. McReynolds, 275, 277, 278 Colbert v. Moore, 113, 115 Colby v. Keene, 313 Colby v. Osgood, 379, 478 Colcord v. Leddy, 892 Colcord v. 'Swan, 589 Cole v. Gibbons, 193 Cole v. Hawes, 366 Cole v. Hughes, 326 Cole v. Johnson, 142 Cole v. Justice, 481, 493, 553 Cole v. Kimball, 283, 336, 343 Cole v. Lee, 358, 404 Cole v. Raymond, 587 Coleman v. Bank, 199, 657, 879 Coleman v. Bruch, 838 Coleman v. Clark, 274, 275, 459 Coleman v. Coleman, 606 Coleman v. Floyd, 681 Coleman v. Hart, 71'5 Coleman v. Insurance Co., 509 Coleman v. Lucksinger, 284, 426 , Cbleman v. Luetcke, 361, 430 Coleman v. Lymam, 283 Coleman v. Rowe, 484, 606, 665 Coleman v. Sanderlin, 658 Coleman v. Whittle, 517 Collier v. Cowger, 346, 389, 404, 451, 463 Collier v. Gamble, 283, 286, 292, 699 Collingwood v. Irwin, 305, 438, 467, 468 Collins v. Baker, 465 Collins v. Buffalo, &c. Ry. Co., 563 Collins v. Clayton, 934 Collins v. Delashmutt, 37, 789 Collins v. Miller, 132 Collins v. Smith, 533, 779 Collins v. Thayer, 648, 675 Collis v. Cogbill, 395, 465 Colonial, &c. Mt'ge Co. v. Lee, 563 Colpe v. Lindblom, 759, 795, 845, 855, 881 Colton v. Wilson, 196, 779 Colver v. Clay, 537, 545 Colvin v. Schell, 457, 718 Colwell v. Hamilton, 37, 640 Colyer v. Thompson, 202, 756, 944 Combs v. Combs, 390 Combs v. Scott, 227, 232 Combs v. Tarlton, 226, 236 Comegys v. Davidson, 507 Comer v. Walker, 905 Comings v. Little, 320, 341, 343, 376 Commercial Bank v. Martin, 97 Common School D. v. Conrad, 483 Commonwealth v. Andre, 162, 590 Commonwealth v. Bierly, 590 Commonwealth v. Dickinson, 130 Commonwealth v. McClanachan, 707 Commonwealth v. Pejepscut, 163, 590 Compton v. Nuttle, 522 Comstock v. Ames, 250 Comstock v. Crawford, 120 Comstock v. Lager, 215 Comstock v. Smith, 572, 592, 593 Comstock v. Son, 362, 947 Conaway v. Gore, 605, 619 Concord Bank v. Gregg, 155, 250, 743, 674 Condit v. Bigelow, 566 Condit v. Johnson, 194 Conger v. Weaver, 226 Conger v. Mericles, 619 Congregation v. Miles, 671, 756, 724 Cong, of Sisters v. Jane, 402 Conklin v. Hancock, 294, 447 Conley v. Doyle, 15 Conley v. Dibber, 868 Conley v. Finn, 806 Connell v. McLean, 226, 229 Connolly v. Peirce, 168, 221 Connelly v. Phila, 133 Connelly v. Putnam, 846 Connor v. Eddy, 484, 571 Connor v. McMurray, 574 Connor v. Wells, 606 Conrad v. Trustees, 426, 428 Conrey v. Pratt, 590 Contee v. Lyons, 99, 102, 177, 843, Continental Coal Co. v. Kilpatrick, 255, 263 Converse v. Blumrich, 628 Con way v. Case, 36 Conwell v. Clifford, 265 Coogan v. Ockershausen, 845 XXXIV TABLE OF CASES [REFERENCES AKK TO r. Cook v. Bean, 873 Cook v. Curtis, 436, 468 Cook v. Fuson, 353 Cook v. Jackson, 511 Cook v. Mix, 500, 501, 502 Cooice v. Husband, 620 Cooley v. Lee, 563 Oooley v. Rankin, 484, 696, 702 Coombs v. Lane, 115 Coombs v. O'Neal, 848 Coonrod v. Studebaker, 173, 780 Coons v. North, 138 Cooper v. Bloodgood. 383, 384, 485 Cooper v. Burns, f>90 Cooper v. Denne, 798, 900, 901 Cooper v. Emery, 166 Cooper v. Cranberry, 413 Cooper, In re, 466 Cooper v. Phibbs, 948. 960 Cooper v. Reynolds, 98 Cooper v. Rutland, 850 Cooper v. Singleton. 511, 655, 787 Cooper v. Sunderland, 107 Cooper v. Watson, 464 Cope v. William*, 670. 686 Copeland v. Copeland, 307 Copeland v. La mi, 608 \ Copper v. Wells. 531 ^Copwood v. MeCandless. 403, 735 Corbally v. Hughes, 649 Oprbett v . Dawkins, 113. 705 Corbett v. McGregor, 248, 252. 257, 940 Corbetl v. Xoreross, 58 Corbett v. Nutt, 843 Oorbett v. Shulte, 199 Corbin v. Railway Co., 593 Obrooran v. White, 525, 544 Cords v. Goodwin, 801 Core v. Strieker, 83 Core v. Wigner, 805, 902 Corey v. Matthewson, 197, 788 Corn v. Bass, 326, 857 CorneliuH v. Kinnard, 362 Cornelius v. Kromminga. 319, 856 Cornell v. Andrews, 765. 786, 840 Cornell v. Jark*on, 282. 3IMJ, 445, 584 Cornell v. Rodwbaugh. 226 < <.r n Mi v. Capron. 366 Cornwall v. \ViHianiH, 520 Cornwell v. Clifford. 483 (Vjrrall v. Cat toll. 901 (Vir*on v. Mulvany, 538 OorW Cane. 382 Corwin v. Benhnm. 81. 122 Oorwith v. (drifting, 101 Coxhy v. Dnnr.inger. 856 Conner v. McCrum, 68 Costi-llo v. Tanker, 828 Coster v. Monroe Mfg. Co., 157, 357, 922, 923 Costigan v. Hastier, 522 Costigan v. Hawkins, 946 Cotes v. Raleigh, 913 Ootting v. Comm'th, 314, 318 Cotton v. Ward, 584. 839, 894 Cottrell v. Cottrell, 159 Cottrell v. Watkins, 805 Coudert v. Sayre, 323 Coughenour v. Stauft, 725 Coulson v. Wing, 120 Oourtright v. Courtright, 611 Covell v. Cole, 533 Coverly v. Burrell, 32 Coves v. Hallahan, 85.1 Cowan v. Kane, 322, 533. 539, 855 Cowart v. Singletary, 563 Cowdrey v. Coit, 403 Cowdrey v. Cuthbert, 549 Cowdrey v. Greenlee, 172, 839 Cowen v. Wi throw, 134 Gowley v. Watts, 21 Cox v. "Bradford, 462, 469 Oox v. Coventon, 850 Cox v. Oox, 95. 806, 822 Oox v. Davis, 92 Cox v. Henry, 227, 244, 425, 439, 451, 45."', 490, 731, 717 Cox v. Johnson, 549 Cox v. Middleton, 21 Cox v. Strode, 228, 289, 424, 423, 468 Coyne v. Souther, 123 Crabtree v. Levings, 49. 159 Craddock v. Shirley, 196. 203, 882 Craft v. La Toureite, 681 Craft v. Merrill, 134 Craig v. Donovan, 287 Craig v. Heis, 312. 485 Craig v. Lewis, 324. 600 Craig v. Martin, 887 Cramer v. Benton, 592 Cramer v. Mooney, 876 Crandnll v. Kirk' 228 C'rane v. Collenbaugh, 400 Crane v. Development Co.. 740 Craus v. Durdall, 329 Craven v. Clary. 402 Crawford v. Kebler, 258. 259, 641, 750, 863 Crawford v. McDonald. 300. .121 Crawford v. Murphy. 702. 725 Crawford v. Pendleton. 391 Crawford Co. Bank v. Baker, 388, 400, 410 Trawley v. Timlnrlake. 788 Crayton v. Munper, 116 Creekmore v. Bryant, 563 TA3LE OF CASES XXXV [REFERENCES ARE TO PAGES] Creigh v. Boggs, 907 Creighton v. Pringle, 616 Crenshaw v. Smith, 445 Creps v. Baird, 122 Crim v. Umbsen, 26, 628 Crippen v. Baumes, 619 Cripps v. Read, 157, 705 Crisfield v. Storr, 362, 387, 409, 436, 453, 459, 460, 472, 473 Critchett v. Cooper, 37, 216 Critchfield v. Kline, 607 Crittenden v. Craig, 249 Crittenden v. Posey, 228, 451 Crocker v. Ingersoll Eng. Co., 235 Crocker Pt. Asso'n v. Gouraud, 808, 810 Crockett v. Crockett, 624 Croft v. Thornton, 562 Cronister v. Cronister, 730 Cronk v. Trumble, 209 Crocker v. Jewell, 413 Croom v. Allen, 391, 417, 433 Crop v. Norton, 520, 522 Crosby v. Evans, 415, 540, f>68, 569 Crosby v. Thedford, 824 Crosby v. Wynkoop, 227, 228, 794 Crosier v. Acer, 951 Cross v. Devine, 238 Cross v. Freeman, 41 Cross v. Lumber Co., 692 Cross v. Martin, 584 Cross v. Noble, 320, 709, 724 Cross v. Robinson, 418, 571 Cross v. Zane, 144 Crosse v. Young, 382 Crotzer v. Russell, 714 Crouter v. Crouter, 823 Crowder, Ex parte, 158 Crowe v. Ballard, 194 Crowell v. Jones, 275, 485 Crowley v. Lumber Co., 323 Crowell v. Packard, 706 Croxall v. Sherrard, 805 Crum v. Getting, 415 Crum v. Loud, 609 Crump v. Schneider, 251, 889 Crutcher v. Stump, 386 Crutchfield v. Danilly, 252, 258 Crutchfield v. Hewett, 63, 833 Cuba v. Duskin, 317 Cnlbertson v. Blanchard, 680, 941 Culler v. Motzer, 725 Cullum v. Br. Bank, 257, 259, 481, 744, 928 Culver v. Avery, 13, 747, 719 Culver v. Jennings, 460 Cumming's Appeal, 125, 130 Cummings v. Dolan, 837 Cummings v. Freer. 624 Cummings v. Hamrick, 300 Cummings v. Harrison, 467 Cummings v. Holt, 380 Cummins v. Boyle, 492, 765, 925 Cummins v. Kennedy, 392, 414, 425, 430 Cunningham v. Anderson, 119 Cunningham v. Blake, 840 Cunningham v. Buck, 133 Cunningham v. Depew, 521, 530 Cunningham v. Fithian, 202 Cunningham v. Friendly, 773, 807 Cunningham v. Gwinn, 640 Cunningham v. Knight, 409 Cunningham v. Sharp, 37, 799, 811, 840, 912 Curd v. Davis, 496 Curling v. Flight, 903 Curling v. Shuttleworth, 771 Curran v. Banks, 549 Currie v. Cowles, 529 Currie v. Nind, 802 Curtis v. Deer ing, 391, 471 Curtis v. Gooding, 142 Curtis v. Hawley, 423, 792, 793 Curtis Land Imp. Co. v. Land Co., 21, 36, 37, 789 Gushing v. Spalding, 842 Cushman v. Bean 534, 857 Cushman v. Blanchard, 456 Custer v. Hall, 565 Cuthbertson v. Irving, 420 Cutter v. Waddingham, 600 Cutts v. Thodey, 193 Cypress Lumber Co. v. Tiller, 535 D. Daggett v. Reas, 289, 386 Dahl v. Pross, 548 Dahle v. Stakke, 309, 343, 502, 503, 509 Dail v. Moore, 61, 64 Dailey v. Springfield, 595 Daily v. Litchfield, 765 Daisy Realty Co. v. Brown, 329 Dalby v. Pullen, 889 Dale v. Shively, 272, 289, 439, 456, 458 Dale v. Sollett, 648 Dallmyer v. Ferguson, 806 Dalrvmple v. Cole, 540 Dalton v. Bowker, 425, 465, 468 Dalton v. Taliaferro, 150, 300 Daly v. Bernstein, 652, 654 Daly v. Bruen, 214 Dalzell v. Crawford, 773, 822 D'Amelio v. Abraham, 340 Damm v. Moors. 620 Dana v. Goodfellow, 302 XXXVI TABLE OF CASES IKUFEKEXCES ABE TO P.UJKS] Dunaher v. Hildebrand, 846 Dane v. Berber, 607, 014 Danforth v. Smith, 292, 431 Daniel v. Baxter, 642 Daniel v. Hollingshed, 186 Daniel v. Leitch. hii. S4, 96 Daniel v. Sinythe, 860 Daniell v. Shaw, 77:5, 856 Daniels v. Newton, 19 Danly v. Rector, 122 Danzer v. Moersehel, 810 Darlington v. Hamilton, 31, 854 Darrow v. Cornell, 222, 800 Darrow v. Horton, 888 Dart v. Barbour, 622 Dart v. Dart, 592 Dart v. McQuilty, 536 Darvin v. HiUfield, 87 Daughtry v. Knolle, 363, 952 Davar v. Caldwell, 837 Davenport v. Bartlett, 394, 395, 402, 406 Davenport v. Latimer, 203, 521 Davenport v. Roberts, 600 Davenport v. Scovil, 619 Davenport v. Sparkman, 172 Davenport v. Whisler, 734 Davidson v. Cox, 281, 419 Davidson v. Keep, 630 Davidson v. Moss, 250, 940 Davidson v. Van Pelt, 38 Davies v. Hughes, 113 Davis v. Agnew, 568 Davis v. Bean, 508 Davis v. Beasley, 61 Davis v. Evans, 2(12 Davis v. Fair, 364, 425 Davis v. Gaines, 141 Davis v. Heard, 267, 7S1, 681, 944 Davis v. Henderson. 38, 153 Davis v. Hunt, 125 Davis v. Lee, 234. 451, 491 Davis v. Lewis, 240 Davi- v. Ixigan, 390. 927 Davis v. Lyman, 272. 27.">, 280, 313. 366 Davis v. Murray, l:t'>. 517 Davis v. Park DavU v. K-nl 214 Davis v. Rogers, "621. t; Davi-* v. Ilii-i-n/wpig, 683 D.ivi- v. SliirMs, 40 D.ivi- v. Smitli . 425, 465 Davis v. Symoinls. <',:i -> v. Teal. 3R7 D.ivi- v. Tnllemtu-he. 477. 558 Davis v. Watwn, 671. 912 v. Willx, nrni'. 461. 468 Davinor v. DeFreect, 4W v IVrrine, 757 Danes v. Betts, 32 Dawson v. Shirley, 149 Day v. Browne, 160 Dav v. Biirnham. 153 Day v. (JhiMn, 3!I2, 472 Day v. Kingslund, 813, 816, 832 Day v. Nason, 233 Dayton v. Citizens' Nat. Bank, 623 Dayton v. Dusenberry, 928, 930 Dayton v. Mi-lick, 499 Deacon v. Doyle, 331 Deal v. Dodge, 482, 500, 755, 692 Dean v. Morris. 127 Dean v. Williams, 792 Dearth v. Williamson, 37, 789 Deaver v. Deaver, 37 S De Chaumont v. Forsyth, 414 Dock's Appeal, 320 Decker v. S-hult/i-. 256 De Courcey v. Barr, 62 Deery v. Cray, 68 De Forest v. Leete, 347, 353 Dellaven's Appeal, 81 Dehority v. Wright, 336 Deichman v. Deichman, 215 De Jarnette v. Cooper. 614, 622 De Jarnette v. Dreyfus, 297, 352. 466 De Kay v. Bliss, 499 Delafield v. James, 791 Delano v. Saylor, 683 Delavan v. Duncan, 213 Delavergne v. Norris, 339, 343, 344, 508 Delco Holding Co. v. Rosenthnl, 311, 373 De Long v. Improvem't Co.. 327. 410 De Long v. Spring Lake C"., .">! Demarest v. Friedman, 816 Demarest v. Hopper. .">!>2 Demarett v. Bennett, 511. 512. 932 Dcinars v. Koehler, 321 Deim-rse v. Mitcholl. 589 Demmy's Appeal, 120 Den v. Den i a n-st. 589 Den v. Oeiper. 70. 276 Den v. Hamilton. 7 J Den v. Young, 125 Denn v. C.inn-11. r)87 D.'iiiK- v. Light. 22 Denning v. Crr-^.n. 268 Dennis v. lyonp. 388 D.-nnis v. Heatl.. :{!)B. 3<>7. 403, 484, .",0.1 D-nni- v. Strain r^.-r. 2n;i. s?2, 875 Dtmnison v. Eh Denny v. C\. K',:. . Denny v. Wi.-kliir.-. ?:.. TM. !.'7 Dc-n^.n v. I.OVP, 420. 50.' Ih-nston v. Morris, 268. 931 DcntW v. ISruwn. 726 TABLE OF CASES XXXV11 Dentler v. O'Brien, 893 Depavo v. Rizzo, 896 DePeyster v. Murphy, 314, 316 Derr v. Wilson, 96 De Saussuer v. Bollman, 8,32 Deseumuer v. Rondel, 785, 794 Des Moines, etc., R,. E. Co. v. Beale, 169 Desverges v. Willis, 328, 921 Dethloff v. Voit, 854 Detroit R. Co. v. Griggs, 929 Deverell v. Bolton, 138, 193, 196 Devin v. Hendershott, 418, 419 Devin v. Himer, 232 Devine v. Lewis, 437 Devine v. Rawle, 313 Devling v. Little, 41 DeVoney v. Chiappi, 852 Devore v. Sunderland, 283, 287 Devour v. Johnson, 468 Dewey v. Campau, 67, 68 DeWolf v. Hayden, 586 DeWolf v. Mallet, 127 Dexter v. Manly, 371, 390, 471, 473, 475 Dial v. Grain, 630 Diamond v. Shriner, 523 Diamond State Co. v. Husbands, 768, 847 Dickinson v. Colgrove, 806 Dickerson v. Davis, 73 Dickerson v. Trustees, 807 Dickins v. Shepherd, 425, 445 Dickinson v. Dickinson, 848 Dickinson v. Glenney, 604, 624 Dickinson v. Hoomes, 150, 153, 155, 336, 366, 412, 420 Dickinson v. Talbot, 562, 585 Dickinson v. Voorhees, 363, 725 Dickson v. Desire, 283, 287, 436 Dig&le v. Boulden, 877 Dif.'gs_ v. Henson, 414 Diggs v. Kirby, 247, 739, 743 Dignan v. West, 404, 486 Dikeman v. Arnold, 855 Dill v. Noble, 792 Dill v. Wareham, 712 Dillahunty v. R. Go., 399, 400, 440, 441 Dillard v. Cochram, 565 Dillinger v. Ogden, 792 Dillingham v. Estil, 491 Dimmick v. Lockwood, 346, 347, 431 Dinniny v. Brown, 342 Disbrow v. Folger, 829, 847 Disbrow v. Harris, 491 Diseker v. Eau Claire L. Co., 390 Ditehey v. Lee. 203, 855 Dix v. School District, 486 Dixo-n v. Astley, 196 Dixon v. Cozine, 825 Dixon v. Rice, 540 Dixon v. Robbins, 65 Doak v. Smith, 369 Doan v. Mauzy, 528 Doane v. Willcutt, 586, 589, 593 Dobbins v. Brown, 360, 383, 384, 385 Dobbs v. Norcross, 799 Dobson v. Zimmerman, 241, 771 Doctor v. Hellberg, 535 Dod v. Paul, 605 Dodd y. Nelson, 132 Dodd v. Seymour, 36, 154, 159 Dodd v. Templeman, 110 Dodd v. Toner, 506 Dodd v. Williams, 578 Dodson v. Cooper, 555 Doe v. Anderson, 104 Doe v. Dowdall. 580 Doe v. Oliver, 578 Doe v. Quinlan, 562 Doe v. Smith, 134 Doe v. Stan ion, 20, 30 Doebler's Appeal, 785, 840 Doggett v. Emerson. 759 Doherty v. Dolan, 12, 227 Dole v.' Shaw, 803 Doll v. Pizer, 829 Dom. Bldg. Asso. v. Guardiano, 173 Dominick v. Michael, 589, 901 Donaldson v. Waters, 670 Donehoo v. King, 573 Donlon v. Evans, 20, 425 Donnell v. Thompson, 293, 322, 350, 360, 439 Donner v. Reden'baugh, 243 Donohoe v. Emery, 161, 376 Donohue v. Vosper, 563, 575 Donovan v. Frisker, 756 Donovan v. Hoenig, 645, 896 Donovan v. Twist, 571 Doody v. Hollwedel, 837 Doom v. Curran, 425, 459 Dooman v. Killilea, 316 Doppelt v. Geliebter, 839 Dore v. So. Pac. Ry. Co., 880 Doremus v. Bond, 495 Dorincourt v. La Croix, 227 Dorr v. Middileburg. 950 Dorr v. Steichen, 620 Dorr v. Wilson, 96 Dorsch v. Andrus, 194, 218, 852 Dorsey v. Dashiell, 301 Dorsey v. Gassaway, 591 Dorsey v. Hobbs, 640 Dorsey v. Jackman, 730, 725 Dorsey v. Kendall, 104 Doswell v. Buchanan, 578, 579> Dotson v. Bailey, 630, 761 Dougald v. Dougherty, 564 XXXV111 TABLE OF CASES [REFERENCES ARE TO PAGES] Dougherty v. Carberry, 838 Dougherty v. Duval, 412, 436 Doughty v. Cottraux, 511 Douglas v. Lewis, 370 Douglas v. Soott, 575 Doupe v. Genin, 382 Doutney v. Lambie, 776 Dow v. Lewis, 158, 162 Dowdney v. Mayor, 317 Dowdy v. McArthur, 177 Downer v. Fox, 555 Downer v. Smith. 272, 275, 343, 446 Downey v. Seib, 785 Downing v. Anders, 883 Downs v. Nally, 311 Dowson v. Solomon, 194, 196, 198, 906 Doyle v. brundred, 425 Doyle v. Emerson, 311 Doyle v. Hord, 363, 386, 951 Drake v. Baker, 226, 229, 230, 242, 425 Drake v. Barton. 20. 149 Drake v. Codci-oft, 382 Drake v. Collins, 546 Drake v. Gaffney. 217. 233 Drake v. Shiels,* 22 Drennere v. Boyer, 209. 666 Dresbach v. Stein, 80, 82 Dreel v. Jordan, 77, 219, 838, 872, 890 Drew v. Clark. 956. 961 Drew v. Corporation, 863 Drew v. Pedlar, 215 Drew v. Smith. 548 Drew v. Towle. 395. 425, 485, 506 Driggin v. Cassaday. 102, 104 Driggs v. Dwight, 223 Drinker v. Byers. 717, 731, 728 DrLscoll v. Carroll. 857 Driver v. Rpence. 131 Droge v. Cree. 784. 843 Drott v. Stevens. 705 Dniry's Case, 131 Dniry v. Connor, 533 Drury v. Imp. Co., 305 Drury v. Mickleberry. 165 Dniry v. Rhumway. 397, 433 Drysdale v. Mace. 30 Dubay v. Kelly. 445. 454 Dubols v. James, 879 DuBow v. Kell. 565 Duchess of Kingston 1 * CMC, 671 Dudley v. Bryan, 609 Dudley v. Ca'dwell. 576 Dudley v. Folliott. 381 Dudley v. Waldrop. 309. 311. 484 Durtzmann v. Kmintj, 333, 745 Duff r. WiU.n. 308 Duflield v. U ilon. 637 Duflield v. Scott, 454. 464 Duffy v. Sharp, 312 Dufief v. Boykin, 39. 640 Dufour v. Cambranc, 140 Duke v. Barnett, 30, 31 Duluth Land Co. v. Klovdahl, 874 Dumars v. Miller, 229 Dun v. Dietrich, 299 Dunbar v. Tredennick, 194 Duncan v. Blair, 303 Duncan v. Cafe, 195. 197 Duncan v. Charles, 218 Duncan v. Gainey. 143 Duncan v. Jeter," 755, 757, 681 Duncan v. Lane, 484 Duncanson v. Manson, 103 Duncan v. McCullough, 567 Duncan v. Tanner, 245 Dundas v. Hitchcock, 70 Dundy v. Chambers, 62 Dunfee v. Childs, 94 Dunghee v. Geoghegan. 229 Dunham v. New Britain. 617 DunkMxTtfpr v. Whitehall, 405 Dunklee v. Wilton R. Co., 333 Dunlap v. Dougherty, 60 Dunlap v. Hepburn, 753 Dunmars v. Miller. 226 Dunn v. Frazier. 126, 144 Dunn v. Huether. 855 Dimn v. Mills. 194, 198. 671 Dunn v. White, 311. 483. 494 Dunnioa v. Sharp. 226. 235. 425 Dunning v. Leavitt. 485. 500 Dunn i van v. Hughes, 657 Dupre v. Thompson. 609. 624 Dupree v. Savage. 261. 718 Dupuy v. Roebuck. 394 Duraml v. Williams. 281 Durbin v. Shennor*, 379 Dtirliam v. Hadlev. 20, 868, 877 Duroe v. Evans. .102 Durrett v. Piper. 322 Dussnume v. Burnett, 61 Dust in v. Newcomer, 224 Dutch v. Warren. 648 Dutch Church v. Mott. 825. 879, 887 DTtrirht v. MHohoir. 737. 949 Dutton v. Oerish. 303 Duval v. Craig. 100. 352. 366, 391 Duvall v. Parker. 302, 772. 808 813 D. W. Alderman Co. v. McKnight. 807 Dwight v. Cutler, 20, 37, 150, 290, 046, 765, 780. 19 Dwight ' Case, 130 Dwinel v. Vcazie, 158 Dworsky v. Arndstein, 815, 830 Dye v. Mnntngrte, 220 Dye v. Thompson. 562 Dyer v. Mm ton. 403 TABLE OF CASES XXXIX [REFERENCES ARE TO PAGES] Dyer v. Dorsey, 243, 245 Dyer v. Ladomus, 312 Dyer v. Wightman, 383 Dyett v. Pendleton, 382 Dyker, M. L. & I. Co. v. Cook, 767, 859 . Eads v. 'Murphy, 494, 670 Eaker v. Harvey, 395 Eames v. Armstrong, 275, 278, 282, 290, 295. 601 Eames v. Der Gerrnania Turn Verein, 191, 758 Eames v. Savage, 15 Earl v. Campbell, 640, 799, 860 Earle v. Bickford, 712 Earle v. De Witt, 734, 737. 706, 714 Earle v. Middleton. 434, 452 Early v. Douglas, 825 Early v. Garrett, 252, 745 East v. Davis, 593. Easter v. Severin, 609, 611 Eastman v. Home, 791 Easton v. Montgomery, 20, 168, 172, 643, 875, 881. 889 East Tenn. Nat, Bank v. First Nat. Bank, 476, 559, 743 Eaton v. Chesbrough, 314 Eaton v. Eaton, 624 Eaton v. Hopkins, 429 Eaton v. Lyman, 283, 294, 340, 341, 346. 465 Eaton v. Tallmadge, 486 Eberhardt v. Miller, 809 Ebling v. Dwyer, 777-786, 827 Eby v. Eby, 36. 37 Eby v. Elder, 729 Eccles v. Timmons, 90 Echols v. Miller, 216 Eckel v. Spitzer, 854 Edde v. Cowan, 145 Eddleman v. Carpenter, 565 Eddy v. Chace, 334 Eden v. Blake, 34 Edgerton v. Page, 382 Edington v. Nix, 343. 484, 696 Edmison v. Zaborowski, 876 Edmonds v. Cochran, 213 Edwards v. Bodine, 485. 498, 923 Edwards v. Clark, 303, 311. 320,321 Edwards v. Davenport, 571-588, 589 Edwards v. McLeay, 247, 252, 254, 739, 744 Edwards v. Morris, 485, 806 Edwards v. Roys, 276 Edwards v. Strode, 661 Edwards v. Van Bibber, 199, 800 Edwards v. Varick. 592 Edward^ v. Watson, 216 Edwards v. Wick war, 30 Efta v. Swanson, 378, 406 Egan v. McDonald, 829 Egan v. Martin, 289, 292 Egan v. Yeaman, 340, 341, 929 Eggers v. Busch, 767, 894 Eisler v. Halperin, 801, 846, 855 Ela v. Card, 289, 445 Elam v. Donald, 14, 145 Elder v. Chapman, 629, 873 Elder v. First Nat. Bank, 490 Elder v. McCloskey, 806 Elder v. True, 433 Elfenheim v. Von Hafen, 14, 645 Eller v. Moore, 323, 390 Eller v. Newell, 882 Elkin v. Timlin, 718 Elkins v. Thompson, 50, 805 Elkin s v. Seigler, 21 Elliot v. Boaz, 757, 680, 681, 684 Elliot v. Piersol, 75, 102 Elliot v. Sanfley, 461 Elliott v. Blair', 889 Elliott v. Garvin, 736 Elliott v. Hogue, 873' Elliott v. Osborn, 64 Elliott v. Sackett, 615 Elliott v. Thompson, 425, 440, 486 Ellis v. Abbott, 460 Ellis v. Anderton, 39, 90, 647, 654 Ellis v. Crossley's Sons, 399, 441, 601, 733 Ellis v. Ellis, 142 Ellis v. Hoskwis, 666 Ellis v. Lockett, 77, 791 Ellis v. Welch, 381-383, 384 Else v. Kennedy, 624 Elterman v. Hyman, 683, 860 Ely v. Hergesell, 413, 419 Emerick v. Hackett, 149 Emerson v. Hiles, 912 Emerson v. Minot, 385 Emerson v. Roof, 883, 884 Emerson v. Sansom, 564 Emerson v. Wlash. Co., 706 Emery v. Barfield, 593 Emery v. Grocock, 776, 778, 805 Emery v. Pickering, 902 Enrmons v. Moore, 252 Engel v. Fitch, 223, 225, 226, 243 Engel v. Tate, 801 England v. Clark, 116. 122. 126 England v. Garner, 94, 101. Ill Englander v. Rogers, 212, 876 English v. Benedict, 249, 940 English v. McCrary, 594 English v. Plaster' Co, 212 English v. Thomasson, 507, 695, 933 English v. Thompson, 507, 695, 933 Ennis v. Leach, 158 Ensign v. Colt, 324, 350, 393 TABLE OF CASES [HEFERENCK8 ARC TO PAGES] Eppig v. Gruhn, 868 Eppstein v. Kuhn, 244, 534 Erdman v. Corse, 805 Kri.-kson v. Bennett, 236, 237, 238 Krik>en v. \VKiteacarver, 858 Krnst v. Ernst, 594 Krnst v. Parsons, 286, 337 Krskine v. Davis, 48 Krwin v. flyers, 533, 763 Espy v. Anderson, 154, 168, 295,818, 865 Estabrook v. Smith, 307, 320, 402, 404, 436, 438 Estell v. Cole, 524. 674, 787, 799 Estep v. Bailey, 321, 349, 354, 462 Estep v. .Estep', 482 Estep v. 'Walking, 855 Ethington v. Rigg, 36, 867, 8S3 Evans v. Ashby, 102. 103 Evana v. Bicknell, 250 Evans v. Boiling, 876, 885, 950 Evans v. Gerry, 773, 819, 881 Evans v. Dend'y. 90, 514 Evans v. Jones. Ti'T Evans v. Kingsberry, 53.1, 913 Evans v. Marsh, 234, 853, 854 Evans v. McLucas, 514. 510 Evans v. Orchard Co., 170 Evana v. Saunders. :<7ii2. 7!'7. 806 Fgan v. M<\Vhirter, 512 Fahy v. Cavanagh, 794 Pithy v. Ki-v .-,1 v. Craw-ford. 837. 904 Failing v. ' 4K5. 653 Fairbanks v. \Villininm.n 'rntluT v. Criflin. 415 Fair.-liil.I v. Afart.hall. 777 Fmloth v. I-'lor. 153. 158 Fain I'.'h v. .!.r.ln, 576 Fairfax v. Lewis, 220 Falk v. Organ, 284, 288 Falkner v. Eq. Rev. Society, 777 Falkner v. Guild, 38 Falkner v. Haokett, 499 Faller v. Davis, 275, -2\ 7 Falls v. Dickey, 925 Falls City Lumber Co. v. Watkins, 371 Fane v. Fane, 961 Fant y. Wright. 806 Farber v. Bluhaker Coal Co., 534 Fariea v. Smith, 470 Farley v. Bryant, 6*6, 617, 621 Farley v. Eller, 580 Farley v. Howard, ::2.~, Farm, Etc., Mtg'e Co. v. \\ '!].!>, 790 B'armers', Etc., Bank v. Cole, 4 1C. Farmers' & Mech. Bank v. Detroit, 818, 621 Farmers' Bank v. Galbraith, 730,725 Farmers' M;uik v. Glenn, 439, 584 Farmers' Tx>an & Trust Co. v. Malt- by, 578 Farmers' Bank v. Martin, 85 Farmers' Bank, v. Peter, 85, 146 Farnham v. Hotdikiss, 485, 4'J7, 502 Fainsworth v. Duffner, 721 Farnunr v. BufTtim, 72 Farnum v. I'rterMui. 572 Farreli v. Lloy.l. 2:.:.. 74-3 Farrington v. Tennessi'i'. 698 Farrington v. Tourtdlut, 330 Farrow v. May. ">1"> Farwell v. Bean, 433, 462 Fash v. Blake. Fassler v. S-treit, 402, 402 Favill v. Roberts, 14.T Feemster v. M:iy. :{7, t'.r,."). 071 Fehlaber v. Foh'la1..-r. 27s. J!)0, K.'lir!.- v. Turner, 4S:t, 923 Feiner v. K.-i-s. 845 Feist v. Blork. i:,:i Feldbhimv. I^aror Co., 683 F.'l.lhut v. I'.rummitt. 330 Felix v. ivvlin. :>.{:! r.-ller v. MiMi.-ll. K28 Felln\v> v. KVJIIIX. 2Ci5. 485 Krltcn-t.'in v. Kru-t, 654 Fenton, v. Alw>p. 93ft v. Huir. 622 v. Hint on, 65 ii v. !>ni. 372 "ii v. I-M gar. H52 Ferjruwm v. Prinre. 563 Ferguson v. Terl. i >r' Case. 108 l"rrnl..i.-h v I-Ym-ll V. Alden. 466 TABLE OF CASES xli [REFERENCES ARE TO PAGES] Ferris v. Crawford, 305 Ferris v. Harshea, 386, 397 Ferris v. Plumber, 775 Ferry v. Sampson, 770, 816 Ferson v. Sanger, 9*43 Feurer v. Stewart, 385 Fewster v. Turner, 521 Fid. Lumber Co. v. Ewing, 426, 446 Field v. Snefl, 413, 423 Fields v. Clayton, 607, 939 Fields v. Hunter, 468 Fields v. Baum, 637 Fields v. Squires, 376, 412, 478, 694 Fierce v. Houghton, 330, 332, 612 Fife v. Clayton, 34 Fillingin, v. Thornton, 927 Final v. Backus, 72 Finch v. Edmondson, 119 Finch v. Noble, 601 Findlay v. Toncray, 360, 386 Findley v. Horner, 206 Finley'v. gteele, 370 Finn v. Sleight, 600> Fir.ton v. Eggleston, 397 First Af. Soc. v. Brown, 764, 818 First Af. OI. E. Church v. Brown, 818 First Church, Etc., v. Cox, 318 First Xat. Bank v. Gough, 607, 621 First Xat. Bank v. Wentworth, 6'17, 623 First Unit'rn Soc v. Cit., Etc., Co., 330 Fish v. Cleland, 265 Fish v. West, 640 ^ Fishback v. Williams, 662, 878 Fishel v. Browning, 277, 322, 349, 380 Fisher v. Abney, 514 Fisher v. Dow, 511, 513 Fisher v. Eggert, 841 Fisher v. Hurley, 940 Fisher v. Kay, 529, 530 Fisher v. Parry, 288; Fisher v. Salmon, 506 Fisher v. Wilcox, 785 Fisher v. Wood, 110 Fitch v. Baldwin, 277, 278, 600, 940, 949 Fitch v. Casey, 37 Fitch v. Fitch, 586 Fitch v. Polke, 255, 919, 922 Fitch v. Seymour, 325 Fitch v. Willard, 26, 39, 453 Fitts v. Hoitt, 322, 651, 855 Fitzer v. Fitzer, 304 Fitzgerald v. Peck, 956, 957 Fitzhugh v. Croghan, 271, 277 278 584 Fitzhugh v. Land Co., 759 Fitzpatrick v. Crowther, 363 Fitzpatrick v. Featherstone, 755 Fitzpatrick v. Fitzpatrick, 45 Fitzpatrick v. Hoffman, 461, 736 Fitzpatrick v. Leake, 849 Fitzpatrick v. Sweeny, 834 Flagg v. Eames, 57 Flajole v. Schulze, 317 Flanary v. Kane, 564, 587 Flannagan? v. Oberthier, 188 Flannagan v. Young, 76 Flannigan v. Fox, 219, 792, 854 Flanniken v. Xeal, 409 Fleming v. Burnham, 7'85, 843 Fleming v. Harrison, 153 Fleming v. Holt, 137, 158 Fletcher v. Brewer, 890 Fletcher v. Beck, 698 Fletcher v. Button, 17, 38, 223, 226, 235, 673 Fletcher v. Moore, 897 Fletcher v. Wilson, 584, 879* Flickinger v. Glass, 682 Flight v. Booth, 201 Flinn v. Barber, 20, 648 Flint v. Steadman, 451 Flint v. Woodin, 201 Flood v. Graham, 320 Flood v. Von Marcard, 772, 819 Floom v. Beard, 297 Florence Oil Co. v. McCandless, 533, 671, 683, 907 Florentine v. Barton, 102 Flowe v. Hartwick, 534 Fluyder v. Cocker, 905 Fly'v. Brooks, 620 Flurea.u v. Thornhiil, 225, 2i28 Flynn v. Bourneuf, 303; Flynn v. White Breast Coal Co., 332 Fogarty v. Finlay, 66 Foland v. Italian Sav. Bank' 855 Foley v. City of Haverhill, 313 Foley v. Cro'w, 907, 911 Foley v. Keegan, 226- Folk v. Graham, 367, 426, 447 Folk v. Varn, 53 Folliard v. Wallace, 380, 383, 469, 472 792 Follett v. Grant, 272 Folts v. Huntley, 3i84 Foor v. Bank, Etc., Trust Co., 830 Foot v. West, 215, 221, 647 Foote v. Burnett, 283, 287, 346, 417 Foote v. Clarke, 160, 274, 566 Force v. Butcher, 637 Ford v. Belmont, S31 Ford v. McBrayer, 563 Ford v. Schlosser, 805 Ford v. Walworth. 104, 409 Ford v. Wright, 812 xlii TABLE OF CASES [BBinMCM ABB TO PAGES] Ford v. Yates, 34 Fordtran v. Cunningham, 450, 889 Fordyce v. Ford, 193 Fore v. McKenzie, 92, 116 Foreman v. Wolf, 805 Forest v. Camp, 131 Forster v. Abraham, 777 Forster v. Hoggart, 30, 31 Forster v. ficott, 856 Forsyth v. Leslie, 193, 805, 816, 866 Forteblow v. Shirley, 904 Fortescue v. Real Kst. Co., 393 Fortlunan v. Deters, 553 Fort Jeff. Imp. Co. v. DuPeyster. 681 Fort Payne Coal & I. Co. v. Webster, 891 Fosdick v. Burr, 125 Fosgate v. Herkimer Mfg. Co., 878 Foshay v. Shafer, 288, 387 Foss v. Strachn, 586 Fossume v. Requa, 38, 323, 333 Foster v. Dwinel, 600 Foster v. Foster, 323, 332, 346, 34<8 Foster v. Gillam, 743 Foster v. Gressett, 202, 259, 457, 940 Foster v. Herkimer Mfg. Co., 212, 449 Foster v. Hoggart, 30 Foster v. Jared, 666 Poster v. Kennedy, 249 Foster v. Lyons, 933 Foster v. Thompson, 452 Foster v. Woods, 306 Foster v. Young, 160, 162 Foster & Co. v. Saylea, 833, 859 Fountain Val. Co. v. Waggoner, 740, 741 Foute v. Elder, 204, 657 Fouler v. Cravens, 757 Fowler v. Johnson, 225 Fottirr v. M anheimer, 815 Fowler v. Poling, 272. 38.1. 389, 395 Fowler v. Shearer, 589 Fowler v. Smith. 397, 482 Fowler v. Ward. 755 Fox v. Biroh, 527 Fox v. Haughton, 263 Fox v. Kitton, 698 Fox v. Lunilxr Co., .">63 Fox v. McGoodwin. 82 Fox v. M.-iwh, 113. 115, 731 v. Widgery, 600 Foy v. Houston. riTft Tn.Ur v. Ura/olton.'&SO Fraixliot v. T.cnch. 742 FrntH-i-. v. l!;i/-lrip. 800 Fram-i* v. Phnulor. 671. 678 Franciscus v. Reipert, 4lt Frank v. Frank, 8&8 Frank v. Riggs, 481, 923 Franklin v. Dorland, 565 Frantz v. Masterson, 512 Frantz v. Vincent, 194 Franz v. Orton, 521 Fraser v. Prather, 61 Fratt v. Fiske, 678 Frazer v. Bentel, 325, 351 Frazer v. Robinson, 699 Frazer v. Supervisors, 272, 274, 275, 289, 451 Frazier v. Boggs, 36, 884 Frazier v. Tubb, 950 Frederick v. Campbell, 717, 730 Frederick v. Cox, 94 Freebody v. Perry, 527 Freedman v. Oppenheim, 807, 834, 844 Frcelnmt v. Pearson, 798 Freeligh v. Platt, 502 Freeman, v. Auld, 509 Freeman v. Bow, 657 Freeman v. Caldiwell, 145 Freeman v. Duncan, 200 Freeman's Bank v. Vose, 622 Freeman v. Foster, 306, 308 Freeman v. Preston, 70 Freer v. Hesse, 770, 817 Freetly v. Barnliart. 775, 843 Freize v. Chapin. fi.~>!> Freme v. Wright, 30, 738 French v. Folsom, 329 French v. Howard, 936 French v. Genet, 556 French v. Pratt, 134 French v. Spencer. 597 French v. "MrMillion, 588 French v. Phelps, 829 French v. Slack, 3-52 Frenzel v. Miller. 264 Frey v. Rawson. :>r.j Freymoth v. Nelson, 400 Friedly v. 8<-heetz, 122. 162. 731 Friedman v. Dcwees, 873 Friend v. Mahan, 810 Friendly v. El wart. .VJ I Friendly v. Kurt Frink v. Hdlis. Frink v. |)ar-t. 371. 592 Frisl.i.. v. Hitfrnagli', 502 Fri^by v. IVnllnnce, 592 Friwihe v. Kramer, 142 Fri-1oc v. T.atbani. 739 Frit/ v. Pii- ( -y. ::iO. 320, 301, 3M. 442 Friv v. Miller, 381. - r >r>l in v. "Froman. 524, 624 Front v. An pier. 32ft TABLE OF CASES xliii [REFERENCES ARE TO PAGES] Frost v. Atwood, 99, 140, 142 Frost v. Bunson, 902 Frost v. Earnest, 384 Frost v. Knight, 19 Frost v. Raymond, 274 Frost v. Smith, 664 Frost v. Yonkers Sav. Bank, 124, 134 Fruhauf v. Bendheim, 855 Fryer v. Rockefeller, 66, 81, 834, 839 Fucha v. Treat, 620 Fuhr v. Cronin, 812, 871 Fuhrmart v. London, 60, 727, 7 ! 29 Fullenlove v. Vaughn, 803 Fuller v. Devoid, 308 Fuller v. Savings Bank, .607 Fuller v. Hubbard, 154, 220, 221, 642, 855 Fuller v. Hovey, 885 Fuller v. Jillette, 312, 335 Fuller v. Williams, 221 Fulton v. Teager, 594 Fuhveiler v. Baugher, 455-460 Funk v. Creswell, 359, 395, 399, 400 Funk v. Newcomer, 562 Funk v. Voneida, 301, 311, 912, 332, 347 Furber v. Purdy, 649 Furman v. Elmore, 289, 406, 425, 433. Furnas v. Durgin, 301. 389, 396 Furness v. Williams, 600 Furnisa v. Williams, 272, 278, 600 FurnoH v. Bank, 555 Furst v. Bohl, 803 Fuson v. Lambdin, 549 G. Gadow v. Hunholz, 325 Gage v. Cummings, 892 Gager v. Edwards, 509 Gaines v. Jones, 806 Gaines v. Kenned-y, 142, 143 Gaines.v. Merchants' Bank, 126 Gaither v. O'Doherty, 153, 155, 521, 879 Galbraith v. Dilday, 611 Galbraith v. 'Reeves, 681 Gale v. Conn, 483, 695 Gale v. Dean, 227 Gale v. Edwards, 321 Gale v. Gale, 781 Gale v. Morris, 609, 622 Gale v. Nixon, 67'1 Gallagher v. Withington, 551, 757 Gallagher v. Stern, 571. 575 Gallimore v. Grubb, 192 Galloway v. Barr, 528 Galloway v. Bradshaw, 911 Galloway v. Finlay, 441, 551, 67-8 Galvin v. Collins, 836 Galwa'y v. Melchow, 622 Gamble v. Daugherty, 605 Gamble v. McClure, 372 Games v. Bonner, 805 Gammon v. Blaisdell, 16, 384 Gano v. Green, 471 Gans v. Renshaw, 196, 640, 677, 753, 772, 775, 780, 908 Gant v. Dunlap, 165 Gantly v. Ewing, 134 Ganz's Appeal, 653 Garber v. Armentrout, 713 Garber v. Button, 873 Garberino v. Roberts, 213 Garcia v. Yzaguirre, 227 Garden City L. Co. v. Miller, 837, 847 Gardiner v. M'cPike, 387 Gardner v. Dembinsky, 779* Gardner v. Ketelta, 381, 391 Gardner v. Mayo, 945 Gardner v. Moore, $25 Gardner v. Niles, 301 Garfield v. Williams, 273, 281, 292 Garibaldi Realty Co. v. Santangelo, 200, 218. 871 Garlick v. R'y Co., 599 Gar lock v. Cross, 416, 418 Garner v. Garner, 301, 303 Garner v. Leaverett, 247, 481, 755, 757, 681 Garnett v. Garnett, 46 Garnett v. Macon, 112, 840, 861, 862, 887, 890 Garnett v. Yoe, 212 Garrard v. Lantz, 553, 555, 726 Garrett v. Christopher, 368 Garrett v. -Cohen, 683, 885 Garrett v. Crosson, 726 Garrett v. Lynch, 114, 202 Garrett v. McLain, 597 Garrett v. Stuart, 437 Garrison- v. Moore, 444 Garrisort v. Newton, 885 Garrison v. Sandford, 281, 335 Gartman v. Jones, 492, 703 Gartrell v. 'Stafford, 533 Garvey v. La Shells, 673 Garvin v. Cohen, 506, 671 Gas v. Sanger, 447, 951 Gaston- v. Frankum, 22 Gastry v. Perrin, 38 Gates v. 'McLean, 670, 673, 674 Gates v. Parmly, 170, 234. 238, 244, 246, 319, 771, 849, 855 Gates v. Win slow, 706 Gault V. Van Zile, 150 Gaunt v. Wainman, 600 xliv TABLE OF CASES [REFERENCES ABE TO PAGES] Gaut v. Dunlap, 169 Gautreaux v. Boote, 39 Gay v. Hancock, 500, 932, 933, 937 Gayle v. Fattle, 933 Gazley v. Pierce, 35, 154 Gedye v. Duke of Montrose, 883 Gee v. Pharr, 371 Gee v. Moore, 359, 596 Gee v. Saunders, 662 Gehr v. Hcgerman, 755 Geizzler v. DeGraaf, 336, 339 Geithman v. Eichler, 836 Gen. Finance Co. v. Liberator Society, 560, 587 Gen. Underwriting Co. v. Stillwell, 340 Genner v. Hammond, 245 Gennings v. Norton, 301 Gentry v. Callahan, 600 Gentry v. Hamilton, 900 Geoghegan v. Conolly, 20, 190 Geoghegan v. Ditto, 142, 144 George v. Brandon, 564 George v. Conhahn, 49, 834, 893 : ire v. Putney, 404 George v. Robinson, 409 George v. Stockton, 665, 670 Geo. H. Paul Co. v. Shaw, 49, 78 Georgetown v. Smith, 1:24 Gerald v. Elloy. 330 Gerault v. Anderson, 224, 531 Geray v. Mahnomen Land Co., 794, 845 Gerdes v. Moody, 612, tf!9 Gerhardt v. Spaldinir. 363 German Real Est. Co. v. Starke, 491 Gerstell v. Shirk, 683 Gervaise v. Brookins, 21, 673 G8t v. Flock. 71 Getchell v. Chase. 485. 705 Getty v. Peters ',:>!, 628 Geyer v. Girnrd, 5.71 Gheen v. Harris, 318 Oibbon v. Moore. 307 Gibbg v. Champion. 530 Gibbs v. Jeminon, 243 f'Jil.l.s v. Thayer, 359. 593 fJiUon v. Brmvn. 876 :i v. < .irrrkrr, 227 CiUon v. rt,., t,. ft ii, 586, 592, 596 <:il>*on v. Clarke, 527 n v. Colt, 159 Gibson v. l> i 940 Gibson v. Miirv. 162 Gibson v. Ncwnua, 665. 872, 874 i v. Patterwn, 896 n v. Kirhnrt. 4fi3. 706 n v. Spurrier, 794 Giddings v. Confleld, 472 Giddings v. Kolter, 363, 400 Gifford v. Ferguton, 483 Gifford v. Socui>. }x,. 497 Gihon v. 'Morris,* 485 Gilbert v. BuHdey, 271, 281 Gilbert v. Cherry, 18 Gilbert v. Cooley, 141 Gilbert v. Hoffman, 145, 567 Gilbert v. James, 110 Gilbert v. Peteler, 236, 7*63, 853 Gilbert v. Rushmer, 344 Gilbert v. Wyman, 302 Gilbreath v. Dilday, 619 Gilchrist v. Buie. 36, 37 Gilchrist v. Dilday, 73 Giles v. Dugro, 320, 326, 408, 444 Giles v. Paxson, 790 Giles v. Peo. Nat. Bank. 649 Giles v. Union L. Co., 790 Gilham v. Real Est. Co., 317 Gilhanr v. Walker, 923 Gill v. Corbin, 2.10 Gill v. Ferrin, 306 Gillam v. Brings. 516 Gillen v. Po\ve, 568 Gillespie v. Tornance, 644 Gillett v. Maynard, .634, 647, 664, 763 Gillette v. Hill, 141 Gillidett v. Harden, 40 Gilliland v. Fenn. 573 Gills v. Wells, ?88, 827 Gilnian v. Eichler. 26 Gilpin v. -Smith, 484, 744 Gilroy v. Alis, 944 Gillner v. Ruyl, 525 Giinoll v. Adams, 51 Ginn v. Hancock, 325 Girrther v. Townsend, 21, 38 Gish v. Moomaw, 700 Githens v. Barthill, 406 Gittings v. Worthinpton, 375 Given v. M<-rnrroll. 106 \. Brown. 940 Glaw v. Richardson, 7^6 Glasscock v. Minor. 202, 265 niri-.-<-nr-k v. Robin-on. 7">n, 860 ;an v. Condon. 649 Gler.on v. Smith, 383 Glendenning v. Oil Co.. 562 Clrnn v. Allison. 160. ].;| Glenn v. Clapp. Sfi, 8S f']c>un v. Roller, 21-' flN-im v. Thistlo. .W9, 502, 50fl Glnlw More. Co. v. Prrkoy, 344 C, lover v. f9hiel. le v. Linden, 2Jfi rjober v. TTnrt, 684 Gochenour v. Mowry, 580 TABLE OF CASES xlv [REFERENCES ABE TO PAGES] Godd'in v. Vaughn, 38, 153, 158, 191, 201, 203, 902 Godfrey v. Rosenthal, 867 Godley v. Taylor, 160 Godson v. Turner, 32, 204 Godwin v. Maxwell, 204 Goelth v. White, 7'56 Goerlitz v. Malanistta, 840 Goettel v. Sage, 730, 9-?5 Goetz v. Walters, 895, 898 Goetzmann v. 'Caldwell, 876 Goff v. Hawkes, 226, 238, 240 Goff v. O'Connor, 125 Going v. Oakland, 7'86, 884 Golden v. Maupin, 098 Goldman v. Miles, 807, 866 Goldsmith V. Guild, 885 Goldstein- v. Hensley, 7'6 Goldstein v. Hirsh," 854 Golladay v. Knock, 565 Gonzales v. Hukil, 588 Gooch v. Atkins, 144 Good v. Good, 239 Good v. Herr, 954 Goodbar v. Daniel, 122, 127, 622 Goodbar v. Dunn, 622 Goode v. Bryant, 567 Goode v. Smith, 70 Goodel v. Bennett, 423, 5(66 Goodell v. Sanford, 172 Goodenough v. Fellows, 588 Goodin v. Decker, 203, 678 Goodkind v. Bartlett, 250, 855 Goodloe v. Woods, -675 Goodman v. Hadley, 706 Goodman v. Heilig, 330 Goodman v. Randall, 621, 623 Goodman v. Rust, 751 Goodman v. Schwab, 208, 683 Goodman v. Winter, 143 Goodwin v. Francis, 243 Goodwin v. Maxwell, 361 Goodwin v. Morey, 222 Goodyere v. Ince, 131 Gordon v. Champneys, 770 Gordon v. Goodman, 950 Gordon v. Mahoney, 755 Gordon v. Phillips', 482 Gordon v. Sims, 82 Gordon-Tiger Co. v. Brown, 202 Gore v. Brazier, 389, 396, 427, 433, 436 Goring v. Shreve, 141 Gorman v. Gorman, 809 1 Gorman v. Salisbury, 631 Gosflbell v. Archer, 645, 647 Gosman v. Pfistner, 847, 849, 912 Goss v. Lord Nugent, 33, 197, 630 Goss v. Singleton, 872 Gotthelf v. Stranahian, 520, 856 Gottschalk v. Meisenheimer, 49, 219 Goucher v. Helmbold, 724 Goucher v. Martin, 630 Gough v. Bell, 562 Gougii v. Cutter, 574 Gould v. Sternberg, 93, 94 Gould v. Woodward, 66 Gove v. Gather, 66 Governor v. West Imp. Conrmrs., 82 Gourdine V. Fludd, 517 Grace v. Regal, "222 Grady v. Ward, 807 Gragg v. Richardson, 457, 461, 466 Graham v. Anderson, 60, 226 Graham v. Dyer, 432, 451, 461 Graham v. Gates, 533 Graham v. Graham, 226 Graham v. Hack well, 523 Graham v. Hackwith, 523, 531 Graham v. Meek, 589 Gra'ham v. Tankersley, 464, 467 Grames- v. Timber -Co", 860 Granger v. Olcott, 705, 945 Grannie v. Clark, 391, 472 Grant v. Hill, 445 Grant v. Law, 756 Grant v. McArthur, 11, 386 Grant v. Tallman, 346, 496 Grant v. Wasson, 806 Grantland v. Wight, 157, 296, 517, 764, 7'65, 926, 934, 935, 936 Grapengether v. Ferjervary, 624 Grasser v. Black, 769 Grave* v. Mattingly, 160 Gravea v. Spier, 14 Graves v. Wilson, 32 Gray v. Briscoe, 448 Gray v. Handkisson, 516 Gray v. Hill, 803 Gray v. Jones, 188 Gray v. Mills, 18, 218 Gray v. Smith, 832, 872 Gray v. Ward, 707 Graybill v. Ruhl, 856 Grayson v. Weddle, 621 Great Falls Ice Co. v. Worster, 580 Great Western Stock Co. v. Saas, 283 Greaves v. Ashlin, 34 Green, v. Biddle, 237 Green v. Campbell, 925 Green v. Couse, 678 Green v. Chandler, 20, 248, 269, 741, 889, 903 Green v. .Collins, 407, 408 Green v. Covilland, 35 Green v. Finucane, 205 Green v. Ditsch, 767 Green v. Edwards, 423 Green v. Green, 216, 555, 639, 666, 855 xlvi TABLE OF CASES [REFERENCES ARE TO PA<;ES] Green v. Hern/., 554, 650, 807 Green v. Irving, 150, 394, 399, 403 Green v. McDonald, 696, 697 Green v. Pulsford, 778 Green v. Tidball, 317 Green v. Whipple, 923 Greenbjatt v. Herrmann, 5S8, 819, 830 Greenby v. Cheevers, 216, 553, 666, 887 Greenby v. Wilcocks, 280, 472 Greene v. Allen, 13, 761 Greene v. Creighton, 323, 346, 348 Greene v. Tollman, 342 Grene v. Williams, 224 Greenfield v. Mills, 653, 867 Greenlaw v. Williams, 461, 465, 467 Greenleaf v. Cook, 206, 492, 501, 751, 706 Greenleaf v. Queen, 481, 750. 697, 729 Greenlee v. Gaines, 259, 757, 680, 940 Greeno v. Munson, 404 Greenough v. Small, 120 Greenvault v. Davis, 385, 395, 398, 400, 401, 422, 437 Greenville X. B. v. Parkinson, 636 Greenwood v. Hoyt, 232 Greenwood v. Ligon, 37 Gregg v. Carey. 76 Gregory v. Christian. 896 Gregory v. Keonan, 35. 671, 879 Gregory v. Peoples, 569, 590, 591 Gregory v. Sc-ott, 640 Greisinger v. Nabor, 312 Gremillion v. Roy, 459 OreviHe v. Da Costa. 11, 637 Greyson v. Riddle, 895 Greyson v. Tuson, 120 Grin v. S*-ar1orough, 303, 320 Grider v. Land Mtge. Co., 75 Gridley v. Tucker. 500 Griel v. Loina.v. 706 Griesemer v. Hammond, 200. 874 Griffin v. Cunningham, 765, 794, 807, 818, 861 Griffin v. Fairhrother, 272. 413 Griffin v. Reynolds, 304. 426, 445 Griffin v. Schneider, 869 Griffin v. Sheffield, 589 Griffith v. Bogert, 111 Griffith v. Bradford. 791 Griffith v. Drpcw, 759. 763, 6R1 Griffith v. Kempshall, 257, 260, 497, 714, 720 Griffith v. Mnxfleld. R2S. 845, 866 Griffith v. Townley. 944 Grigg* v. Landi*,*200 Grigg* v. Woodruff. 200, 213, 681 Grignon v. Atrtor, 102, 104, 106, 118 Grimes v. Redman, 570 Grist v. Hodges, 281, 379 Griswold v. Allen, 408 Griswold v. Block, 77 Griswold v. Hazard, 954. !)56 Griswold v. Hicks, 111 Grodan v. J^cobson, 77. 638 Groefe'beek v. Harris, 386, 451, 461, 511 Groesbeck v. f^eley, 61 Groom v. Booth. 30 Gross Lumber Co. v. Leitner, 121 Grout v. Townsend, 588 Grove v. Bastard, 779 Grove v. Zuinbro. 70 Groves v. Stoudef, 678. 681, 912 Groves v. Wittenberg. 678 Grow v. Taylor, 789, 856 Grubb's Appeal, 612 Grubbs v. Barber, 483 Grundy v. Jackson, 550. 758 Grymes v. Saunders, 952 Gue v. Jones, 100 Guerin v. Smith, 336, 352 Guerrant v. Anderson, 581 Gueramt v. Rivers, 433 Guest v. Homfray, 887 Guffey Pet. Co. v. Hooks, 585 Guice v. Sellers, 484 Guilmartin v. I'rquhart, 612 Guinotte v. Choteau. 437 Gulf Coal Co. v. Musgrove, 282. 363, 385 Gulick v. Railroad Co., 599 Gump v. Sibley, 805 Gunby v. Sinter, 264, 630 Gum* v. 'Moore. 363 C.unn v. Thornton. 927 C.unnison v. Blaisdell, 18, 384 Gunnis v. Erhart, 34 Gunter v. Williams, 394, 414 Guthrie v. Pugfley, 444, 451 Guthrie V. RUBMU, 343, 344. 346 Guthrie v. Thompnon, 210, 216 Guttwchlick v. Bank, 199, 637, 674, 714 Guy v. Hannow. 829 Guynet v. Mantel, 913 Gwin v. Calegaris. 646. 810 Gwin v. MrCnrroll. 117. 119 Gwirilhcr v. Gerding, 253, 740, 747, 718 Bwynn v. Hamilton. 954 Gwynn v. Thomas, 478 TTaag v. Dickinson. 652 Haer v. Burke. 753 Habig v. Drnlge, 375, 595, 697 TABLE OF CASES xlvii [REFERENCES ARE TO PAGES] Hacker v. Blake, 292 Hacker v. Storer, 281, 421 Hacket v. Glover, 391 Hackett v. Huson, 220, 221 Haden v. Falls, 540 Haddock v. Taylor, 239 Haclloek v. Williams, 751, 90T Haff v. Price, 142 Haffey v. Birchetts, 402, 427, 658 Haffey v. Lynch, 860, 904 Hagan v. Drucker, 770, 809 Hagensick v. Oastor, 592, 597 Haggart v. Scott, 879, 880 Haggin v. Oliver, 922 Hagler v. Simpson, 270, 398 Hahl & Co. v. West, 227, 238 Haight v. Hayt, 247, 739 Haile v. Smith, 671, 673 Haines v. Fort, 461 Haire v. Baker, 3"05 Halcombe v. Lowdermilk, 127, 145 Haldane v. Sweet, 202, 321, 328, 331, 484, 695 Hale v. Cravener 545, 774, 799, 803 Hale v. Marquette, 113, 115 Hale v. New Orleans, 427, 880 Hale v. Wilkinson, 671 Hall v. Betty, 20, 22, 30 Hall v. Bray, 293, 395 Hall v. Chaffee, 596 Hall V. Clountz, 889 Hall v. Dean, 311, 342 Hall v. Delaplaine, 227 Hall v. Gale, 275, 486 Hall v. Huffhines, 637 Hall v. McArthur, 640 Hall v. McKee, 37, 790 Hall v. Nevili; 204 . Hall v. Plaine, 411 Hall v. Priest, 932 Hall v. Scott, 805 Hall v. Scott Co., 283 Hall v. Smith, 32 Hall v. York, 226 Halley v. Oldham, 125 Hallyburton v. Slagle, 562 Hallick v. Guy, 116 Halls v. Thompson, 250, 253, 267 Halpern v. Fisch, '653 Halsey v. Jones, 132, 141 Ham V. Ham, 599 Hamar v. Medskar, 624 Hamilton v. Cutts, 395, 400 Hamilton v. Hamilton, 529 Hamilton v. Hulett, 893 Hamilton v. Lusk, 394 Hamilton v. Wilson, 272, 274, 280 Hamlon v. Sullivant, 616 Hammatt v. Emerson, 920 Hammers v. Hanrick, 259, 680 Hammerschlag v. Duryea, 805 Hammerslough v. Hackett. 292, 415 Hammersmith v. Espy, 127 Hammerstadt v. Bakeley, 292 Hammond v. Chamberlain, 82 Hammond v. Hamlin, 226, 229 Hammond v. Jones, 393 Hampton v. Pool, 415 Hampton v. Specknagle, 218, 844 Hampton v. Webster, 471 Hampton P'k Co. v. Scottile, 321 Hancock v. Bramlett, 909 Hancock v. Carlton, 571 Hancock v. Cloud, 1085 Hancock v. Wiggins, 711 Hand v. Grant, 84, 122 Handy v. Rice, 541 Handy v. Waxter, 84 Haney v. Hatfield, 227 Hanks v. Pickett, 650 Hanlon v. Glue Co., 437, 447 Hanna v. Phillip, 538 Hann Harding v. Olsen, 765, 894 Harding v. Sucher, 462 Harthvick v. Forbes, 943 Hardy v. Nelson, 433, 468, 571 Hare v. Surges, 159 Hare v. Holloman, 111, 120 Harkreader v. Clayton, 549' Harland v. Eastland, 269 Harle V. McCoy, 673 Harlow v. Thomas, 323, 348 Hanner v. Morris, 575 Harn v. Smith, 565 Harnett V. Yielding, 542 Harpening v. Dutch Church, 806 Harper v. Dowdney, 317 Harper v. Jeffries, 553, 555, 726 Harper v. Perry, 411, 418 Harper v. R?no, 549 Harper v. Tidholm, 170 xlviii TABLE OF CASES [REFERENCES ABB TO PAGES] Harr v. Shaffer, 400 Harru-s v. Edwards, 838 Barrel v. Neef, 826 Harriman v. Gray, 599 Harrington v. Grimes, 842 Harrington v. Higgins, 216, 219, 877 Harrington v. Murphy, 322, 339, 341, 404 Harris v. Bolton, 210, 753 Harris v. Byers, 563 Harris v. Carter, 259, 872, 889 Harris v. Granger, 909, 915 Harris v. Newell, 292 Harris v. Rowan, 484 Harris v. Smith, 787 Harris v. Van Vranken, 794 Harris v. Weed, 841 Harrison v. Boring, 594, 598 Harrison v. Boyer, 678 Harrison v. Deramus, 206 Harrison v. Harrison, 109, 120 Harrison v. Palo Alto Co., 378 Harrison, v. Platt, 869, 870 Harristm- v. Railway Co., 328 Harrison v. Shanks, 130 Harrison v. Soles, 555 Harsin v. Oman, 299, 342 Ilart v. Bleight, 19 Hart v. Gregg, 595 Hart v. Handlin, 198, 751, 851 Hart v. Hanmlwl & St. J. R. Co., 484, 687, 942 Hart v. Porter, 731, 724, 727 Hart v. Smith, 136 Hartford Co. v. Miller, 280, 292 hurth v. Gibfcs, 123 Harth v. Gibbs, 145, 146 Hartley v. Coata, 684 Hartley v. Gregory, 301 Hartley v. James, 216, 646, 664, 808 Hartley v. Smith, 778, 7S7 Hartnian v. Stoll, 349 Hartshorn v. Cleveland, 315 Hartzell v. Crumh, 228 Harvey v. Doe, 276 Harvey v. Morris, 674 Harvie v. Hodge, 662 Harwood v. Benton, 334 Harwood v. Blnnd, 193. 195 Harwood v. Lee, 341, 944 HiiHfltine r. Simmon*, 774 Haslam v. Jordan, 669 HawtelbuHch v. Mohmking, 341 IlawtingM v. Hasting*. 343-363 HaMings v. Land Imp. Co., 317 Halting* v. OTlonneH. 706 Hasting* v. Vaughn, 72 Hatch v. Barr, 61 Hatch v. Cobb, 828, 807 Hatcher v. Andrews, 326, 923, 925 Hatcher v. Briggs, 143 Halt v. Rich, 777, 845 Haug v. Primeau, 119 Haven v. Grand June. R. Co., 464 Havens v. Foster, 959 Havens v. Goudy, 667 Haverington's Case, 320 Hawes v. Rucker, 133 Hawes v. Swanzey, 201, 741 Hawkins v. .Brown, 450 Hawkins v. Burruss, 69 Hawkins v. Johnson, 656 Hawkins v. Rogers, 219 Hawn v. Norris, 673 Hawpe v. Smith, 114, 115 Hawralty v. Warren, 539 Hawthorn v. City Bank, 336, 348 Hayden v. Patterson, 275, 402 Hayden v. Pirn-hot, 858 Hayden v. Westcott, 63, 75 Hayes v. Bickerstaff, 472 Hayea v. Bonner, 641, 722 Hayes v. Ferguson, 302 Hayes v. Nourse, 784, 867 Hayes v. Skidmore, 912 Hayea v. Tabor, 594 Hayman v. Steich, 868 Haymon v. Camden, 111, 142 Hayner v. Smith, 382 Haynes v. Farley, 13, 18, 899 Haynes v. Lucas, 11 Haynes v. Seachriat, 6?2 Haynes v. Stevens, 420, 468, 571 Haynes v. White, 35, 36, 670 Haynes v. Young, 408 Haya v. Bonner, 743 Hays v. Dalton, 142 Hays v. Griffith, 94 Hays v. Lackey, 563 Hays v. Trible, 816, 826, 835, 889, 899 Hayt v. Bentcl, 645, 667 Hayward v. Lomox, 564 Hazclrig v. Hutson, 530 Hazelton v. LeDnc, 210 Hazlett v. Woodruff, 454 Hazzard v. Morrinon, 201, 534, 546 Headley v. Shaw, 209, 220 Head 'a* Trustees, In re, 893 Hcadrick v. Yount, 82, 118 Heard v. Hall, 162 Heard v. Nnneolen, 616 Hearnc v. Tomlin, 106, 636 Hourne v. Tenant, 809 Heath v. Black, 131 Hea6 Heimburg v. Ismay, 242, 539, 851, 85'5 Heisch v. Adams, 707 Heisey v. Hartman, 805 Heller v. Cohen, 808, 809, 834, 868 Heller v. Maguin, 896 Hellreigel v. 'Manning, 797, 836 Helm v. Griffith, 343. Helton v. Asher, 304, 305, 332, 349 446, 55, 460 Helvenstein v. Higginson, 481, 670 Hemmer v. Hustace, 783, 824, 827 Hempstead v. Easton, 588 Henderson v. Brown, 928 Henderson v. Fields, 657 Henderson v. Grewell, '67 Henderson v. Hay, 150 Henderson v. Henderson, 322, 346, 437, 916 Henderson v. Lacon, 250 Henderson v. Overton, 123, 126, 560, 564, 600, 831 Henderson v. Perkins, 814 Henderson v. Rice, 70 Hendrick v. Wisehart, 3'04 Hendrick v. Young, 82, 118 Hendricks v. Gillespie. 196, 798, 818, 861, 863, 865, 887 Hendricks v. Goodrich, 756 Hendricks v. Kesee, 280 HendTicks v. Stark, 326, 857, 858 Hendrickson v. R. Co., 132 Hennig v. Smith, 172, 810, 869 Henning v. Withers, 289. 425 Henofer v. Realty Co., 364 Henry v. Barker, 867 Henry v. Elliott, 703, 933 Henry v. Liles, 153, 533 Henry v. McEntyre, 409 Henry v. McKerlie, 556 Hensley v. Baker, 129 Hepburn v. Auld, 834, 888, 907 Hepburn v. Dunlop, 751, 879 Heppinstall v. O'Donnell, 857 Hepwell v. Knight, 884 Herb v. Met. Hosp. & Disp., 351 Herbemont v. Sharp, 517, 699 Herbert v. Handy, 395 Herbert v. Smith, 779 Herbert v. Stanford, 667, 668 Herbold v. Bldg. Asso'n, 807 Herington v. Clark, 400 Herman v. Hall, 255 Herman v. Sommers, 780, 800 Herndon v. Venable, 226, 235 Herrick Imp. Co. v. Kelly, 2(20 Herrick v. Moore, 31u, 329, 351 Herrin v. Mclntyre, 416 Herrod v. Blackburn, 40 Herron v. Bar-hour, 439, 489, 690, 703 Herron v. DeBard, 512 Herryford v. Turner, 153, 484, 510, 651 Hersey v. Turbett, 725 Hertzberg v. Irwin, 725, T82, 831 Hertzog v. Hertzog, 226, 236, 239 Herzog v. Marks, 278 Hesa v. Bowen, 803 Hester v. Hunnicut, 400 Hewison v. Hoffman, 214 Hewitt v. Powers, 621, 625 Heyman-v. Steich, 868 Heyn v. Ohmann, 474 Iliatt v. Callaway, 606 Hibbert v. 'Shee, 637 Hicksi v. Hicks, 187 Hicks v. Lovell, 070 Hickson v. Linggold, 116, 681, 889 Hickson v. Rucker, 92 Higgins v. Eagleton, 14, 200, 212, 214, 649, 652, 900 Higgins v. Johnson, 558 Higginson v. Clowes, 33, 34 Hightower v. Smith, 807 Higley v. Smith, 160, 706 Higley v. Whittaker, 667 Hilary v. Waller, 805 Hile v. Davison, 923 Hileman v. Wright, 608 Hill v. Bacon 312 , Hill v. Billingsly, 142 Hill v. Buckley, 532 Hill v. Butler, 485 Hill v. Coburn, 593 Hill v. Fiske, 528 Hill v. Hobart, 14, 35, 220, 227 Hill v. O'Brien, 571 Hill v. Ressegieu, 38, 156 Hill v. Samuel, 210, 549, 550, 671, 755 Hill v. West, 589 Hilliker v. Rueger, 275, 290, 292, 294, 454 Hillyard v. Baiichor, 769 Hihnert v. Christian, 299 Hilton v. Duncan, 681 Hinckley v. Smith, 909 TABLE OF CASES [REFERENCES ARE TO PAGES] Hinds v. Allen, 461, 467 Hines V. Jenkins, 468 Hines v. Richter, 224 Hine* v. Robinson, 505 Hinkle v. Margeruiu, 255 Hilton v. Scwenfeld, 843 liintz v. Hintz, 503 Hipwell v. Knight, 875 Hiss v. McCabe, 63 Hitchcock v. Caruthers, 142 Hitchcock v. Fortier, 571 Hitchcock v. Giddiugs, 267, 710, 944, 951 Hitchins v. Pettingill, 614 Hite v. Kier, 646 Hitt v. Campbell, 816 Hixon v. Hovey, 21, 852 Hoag v. Rathbun, 4ft7, 926 Hoback v. Kilgore, 153, 156 Hobbs v. King, 414, 588, 589 Hobein v. Drewell, 56 Hobson v. Bell, 26 Hobson v. Buchanan, 880 Hobson v. Lenox, 192, 879 Hochster v. De La Tour, 19 Hodges v. Fabian, 120 Hodges v. Latham. 388 Hodges v. Litohfield, 231 Hodges v. Saunders, 15S, 414 H Hoffman v. Oolgan, 791 Hoffman v. Dickson, 326. 456 Hoffman v. Kirby, 263, 444. 498, 604 Hoffman v. Fettj 43 Hogan v. McMurtry, 875 Hogan v. Weyer, 757 Hogg v. Odom, 47 Hogsett v. Ellis, 303 Hohn v. Bidwell. 593 Hoke v. Jones, 928. 934 Holabird v. Burr, 622 Holbrook v. Debo. 506 Holden v. Curtis. 712 Holden v. Reed. 945 Holder v. Taylor, 392 Holeman v. Maupin, 934 Holladay v. Menifee, 292, 468, 474, 671* Holland v. Anderson. 264, 269, 751 Holland v. Ashley, 363 Holland v. Holmes, 153 Holland v. Johnson, 99 Holland v. Moon, 624 Holland v. Rogers, 39 Hollenburph v. Morrison, Ml Hollifield v. Landrum. 163, 668, 796, 805, 837 Hollinguworth v. Mexia, 373, 418, 436 Hollinsworth v. Colthurst, 790 Hollister v. Dillon, 145 Holley v. Younge, 494, 742 Holloway v. Miller, 4011, 441, 551 Holly v. Hirsh, 777, 794 Holm v. Wust, 171 Holmau v. Creagmiles, 508 Holman v. Criswell, 11, 156 Holmea v. Carr, 595 Holmes v. Holmes, 212, 245, 877, 879, 916 Holmei* v. Richards, 803, 814 Holmea v. Seaman, 437 Holmes v. Shaver, 84 Holmes v. Sinnickson, 425, 426, 459 Holmes v. Wood, 827 Holt v. Mynhier, 447 Holt v. Ruleau, 278 Holt's Appeal, 834 Holtzinger v. Edwards, 122, 127 Holyoke v. Clarke, 160 Home Life In. Co. v. Sherman, 395 Homer v. Purser, 949 Honaker v. Shough, 142 Hoock v. Bowman, 892, 894 Hood v. Clark, 300 Hood's Appeal, 455 Hood v. Huff. 671 Hooe v. Callahan, 25 Hooker v. Folsom, 398, 482 Hooper v. Armstrong, 497 Hooper v. Henry, 572 Hooper v. Jackson, 800 Hooger v. Sac. Co. Bank, 404 Hoot v. Spade. 445 Hoover v. Chamber, 892 Hope v. Blair, 101 IIoj>e v. Stone, 367, 586. 590 Hopkins v. Delaney, 66 Hopkins v. CIrazebrook, 241 Hopkins v. Lane, 413. 414. 410 Hopkins V. Lee, 14, 223. 225, 227, 230 Hopkins v. Mayzck, 957 Hopkins v. Vowell, 228 Hopper v. Hopper, 539 Hopper v. Smyser, 306 Hopp v. Lutkin. 921 Hoppes v. Cheek, 380, 481, 923, 925 IFoppin v. Hoppin. 5(52 H or bach v. Boyd, 696 Hnrbach v. f5ray. 729 Horn v. Butler! 789 HornlxK'k v. Building Assn.. 74 Hornbeck v. Smith. 206, 859 Hornbeck v. Wwtbrook, 47, 74 Home v. Crain, 412 Home v. Hughes, 945 Home v. Rogers, 36, 200, 203, 205, 057, 828 Horner v. Beaaeley, 227, 238 TABLE OF CASES li [REFERENCES ARE TO PAGES] Hornter v. Lowe, 706 Homer v. State Bank, 103 Horowitz v. Mendel R. E. Co., 770 Horrigan- v. Rice, 278 Horrocks v. Elgby, 532 Horsford v. Wright, 433 Horton v. Arnold, 486, 671 Hosford v. Nichols, 1?50 Hough v. Fink, 681 Hough v. Rawson-, 657 Houghtailing v. Lewis, 714 House v. Kendall, 637, 843 House v. McCormick, 564 Houslay v. Lindsay, 8f Houston v. Cameron -Co., 364 Houston v. Dickinson, 441 Houston v. Henley, 201, 919, 932 Houston- Oil Co. v. Lumber Co., 574 Houston v. Randolph, 48 Houx v. Bates Co., &18 Howard v. Doolittle, 383 Howard^ v. Hurst, 438 Howard v. North, 141 Howard v. Randolph, 495, 517 Howard v. Sebastian, 959 Howe v. Harrington, 159, 592 Howe v. Hunt, 776 Howe* v. Hutchinson, 169 Howe v. Walker, 303 Howell v. Richards, 271, 366, 380, 381 Howes v. Barker, 714 Howland v. Bradley, 644 Iloxie v. Finney, 596 Hoy v. Smythies, 31 Hoy v. TaHaferro, 399, 484 Hoyt v. Dimon, 575 Hoyt v. Ketcham, 853 Hoy v. Rothe, 329, 391, 486 Hoyt v. Tuxbury, 171, 865, 884 Hrdlicka v. Evans, 553 H. T. & C. Co. v. WlKitehouse, 422 Hubachek v. Bank, 828 Hub'bard v. Chappel, 497. 929 Hubbard v. Norton, 329, 348, 420, 445 Hubbard v. Stannaford, 397 Huber v. Groo, 870 Huber v. Johnson, 911 Hubert v. Grady, 611 Hudgin v. Hudgin, 111, 141, 556 Hudson v. Max M. L. & I. Co., 533, 886 Hudson v. Steare, 322 Hudson v. Swift, 210, 666 Hudson v. Watson, 210, 221 Huff v. Chamberlain, 396 Huff v. Cumberland Val. Land Co., 396 Huff v. Reilly, 386, 451 Huffman v. Gains, 135 Hughes v. Adams, 7S9 1 Hughes v. McNider, 496, 584, 898 Hughes v. Parker, 20, 21 Huisb/s Charity, In re, 779 Hulett v. Hamilton, 707 Hulfish v. O'Brien, 497, 725 Hull v. Field, 261 Hull v. Hull, 111, 142, 367 Hulse v. White, 425, 452 Hume v. Bentley, 31, 190, 901 Hume v. Dessar, 929.' Hume v. Pocock, 31, 265, 788 Hummer v. 'Buerck, 812 Humphrey v. Clement, 322, 539, 541 Humphrey v. McOlenachan, 445 Humphrey v. Wade, 82 Humphreys v. Hurtt, 603 Humphreys v. Moses, 802 Humpkey v. Norris, 15 Hun v. Bourdon, 198 Hundley v. TiWbitts, 872 Hunt v. Amidon, 389, 414, 489, 734 Hunt v. Hay, 378, 391, 426 436 Hunt V. Marsh, 352, 484 Hunt v. Middlesworth, 416, 502 Hunt v. Moore, 257, 261 Hunt v. Orwig, 414, 422, 440 Hunt v. Rousmaniere, 954, 960 Hunt v. Silk, 199, 758, 675 Hunt V. Smith, 5*35 Hunt v. Stearns, 891 Hunt v. Weir, 842 Hunter, In re, 20 Hunter v. Bales, 521, 905, 9.06 Hunter v. Goudy, 210 Hunter v. Graham, 5*15 Hunter v. Jameson, 159 Hunter v. Reighitley, 350 Hunter v. Lewis, 879 Hunter v. O'Neill, 36 Hunter v. Watson, 47 Huntley v. Waddell, 363, 370 Huntsman v. Hendricks, 448 Kurd v. Hall, 944, 946 Kurd v. Smith, 482 Hurley v. Brown, 520, 891 Hurley v. Ch'arles, 563 Hurley v. Coleman, 496 Huron- v. Stratton, 319, 376 Hurst v. Lithgrow, 415 Hurst v. McNeil, 186* Hurst v. Means, 15, 16, 656, 657, 672, 685 Hurt v. Black stone, 197 Hurt v. McReynolds, 197, 518, 654 Husseyv. Roquemofe, 627 Huston v. Noble, 766 Hutching v. Brooks, 113 Hutching v. Carleton, 53 lii TABLE OF CASES [REFERENCES ARE TO PAGES] Hutchins v. Moody, 322 Hutching v. Roberts, 115 Hutchins v. Kountree, 451, 452 Hutchinson v. Aiiisworth, 6if> Hutchinson v. Coonley, 212 Hutchinson v. McNutt, 521, 878 Hutson v. Furnas, 6U5, 620 Huyek v. Andrews, 324, 328 Hyatt v. Seeley, 156 Hyde v. Dallaway, 33, 805 Hyde v. Heller, 210, 752, 84G Hyde v. Kelly, 535 Hyde v. Redding, 107 Hyman v. Boston Cliair Mfg. Co., 371, 395 Hyme v. Branch, ?73, 784, 840 Hyine* v. Esty, 328, 334, 449 Hvmes v. \'an Cleef, 425 Hyne v. Campbell, 834, 838, 945 Hynes v. Oldham, 96. Hynea v. Packard, 444 Hyslip v. French, 756 Ibbetson v. Knodle, 319 Ice v. Ball, 714 Ikelhimer v. Chapman, 117 111. Land Co. v. Boonier, 418, 422, 570 Inderlied v. Honeywell, 385 Indiana, Etc., Mfg. Co. v. Pharr, 6o7 Ingalls v. Cook, 313, 571 Iii-Mlls v. Eaton, 205, 298 Ingalls v. Huhn, 12, 17, 783 Inge v. LippingAvell, 63.1 Ingersoll Eng. Co. v. Crocker, 854 Ingraham v. Grigg, 66, 7.3 Ingraham v. Ward, 483 Ingram v. Little, 51 Ingram v. Morgan, 260, 918, 924 Ink v. Rohrig, 211, 217 Inness v. Agnew, 283, 359 Innis v. \Villi, 20, 21, 637, 751 Ins. Co. v. Marshall, 707 Interborough R. T. Co. v. Littlefield, 871 Internat'nl Dev. Co. v. Celemans, 340 Irbey v. Wilson, 107 Ire-ton v. Thoman. 329, 333 I rick v. Fulton, 955 Irish v. Stceves. 563, 588 Irvin v. Askew, 227 Irvin v. Bleakley. 210, 213, 215, 553 Irvin v. Stover, 563 Irvine v. Irvine, 5, II, 596, 599 Irving v. Brownel!, 71 Irving v. Campbell. 785, 794, 835 I ruin v. M:i [>!-. 426 IMMOS v. Skrainkn, 879. 915 Isele v. Arlington Sav. Bank, 324 Ishmnel v. Parker, 209 Isler v. Eggers, 674 Ison v. Saunders, 940 Ivea v. Bank, 791, 810 Ivea v. Kimball, 65 Ives v. Niles, 362, 464, 729, 731 Ives v. Pierson, 116 Ivey v. McKennon, 110 J. Jack v. Mc-Keo, 226 Jackson v. Ashton, 753 Jaekson v. Bowen, 141 Jackson v. Bradford, 580. 595 Jackson v. Bull, 5, 16, 591 Jackson v. Cory, 47 Jackson v. Conlin, 169 Jackson v. Creek, 769, 807 Jack-son v. Demon t, 276 Jackson v. Edwards, 94, 540, 887, 916 Jackson v. Fostender, 497 Jackson v. Grim, 274, 366 Jackson v. Hoffman. 306, 368, 569 Jackson v. Hubbell, 524, 591 Jackson v. Knight, 660 Jackson v. Lignn, 193, 203, 882, 897, 902, 912 Jackson v. Littell, 571, 592 Jackson v. Marsh, 461 Jackson v. McCauley, 387, 404 Jackson v. MoGinniss, 141 Jackson v. Mills, 570 Jackson v. Moncrief, 673 Jackson v. Murray, 592, 799, 843, 808 Jackson v. Norton, 692, 919, 938, Jackson v. Peck, 591 Jackson v. Roeevelt, 132, 133 Jackson v. Saseaman. 21)9 Jackson v. Schoonmaker, 46 Jackson v. Sellirk, 394 Jackson v. Summervillo, 567 Jackson v. Turner, 22ti, 425, 451 Jack mm v. Vanderhey(k>n, 588, 589 Jarkwm v. Waldron. 598 Jaekson V. Walnh L. Co.. 934 Jackson V. Whitphead. 30. 32 Jackson v. Wiiralow, 562, 591, 593, 595 Jackson v. Wright, 524 Jacobs v. Fowler. 410, 803 Jacobs v. Locke. 535 Jacobs v. Morrison, 779 Jarorks v. Gillian, 356 Jacmvay v. (fault. 67, 73 Jacques v. Vigo Co.. 521 Jaeger v. Harr. 175. 793 .Fames v. Cutler. 614 James v. Haye*. 482. 715 James v. Hooker, 563 TABLE OF CASES liii [REFERENCES ARE TO PAGES] James v. Jenkins, 331, 334 James v. Lamb, 439 James v. Lawrenceburgh Ins. Co., 502 James v. Lichfield, 532, 543 James V. JSlcKennon, 942 Jaines v. Myers, 95, 775, 801, 827 James v. Warehouse Co., 328, 449 James v. Shore, 912 James v. Stiles, 48 Jamison/ v. Van Auken, 811 Jandorf v. Patterson, 941 Janulewycz v. Quagliano, 12, 213, 801, 883 Jaquesi v. Esler, 492, 507, 697, 923 Jaques v. Tomb, 331 Jarboe v. McAtee, 814, 824, 878 Jarden v. Lafferty, 475 Jarman v. Davis, 765 Jarrett v. Jarrett, 616 Jarvis v. Aiken, 577 Jasper v. Hamilton, 265, 266 Jayne; v. Boisgerard, 142 Jayne v. Brock, 662 Jefferson v. Curry, 133 Jeffrey v. Underwood, 57 Jeffords- v. Dries-bach, 275, 289, 364, 455, 459 Jeffries v. Jeffries, 853, 862 Jendvine v. Alcock, 903 Jenkins v. Buttrick, 319 Jenkins v. Fahig, 880, 905 Jenkins v. Hamilton, 11, 204, 206, 228 Jenkins v. Hiles, 900 Jenkiffs v. Hopkins, 287, 345, 380 Jenkins v. Hunt, 58 Jenkins v. Whitehead, 879, 881 Jenkinson v. Ewing, 5TL7, 705 Jenks v. Quinn, 97, 414 Jenks v. Ward, 320, 322 Jenness v. Parker, 484, 493 Jenness v. Spraker, 638 Jennings v. Brizendine, 604, 608 Jennings v. Jenkins, 82, 83 Jennings v. Jennings, 83 Jerald v. Elley, 353 Jerome v. Scudder, 524, 533, 535, 536 Jervois v. Duke of Northumberland, 767 Jeter v. Glenn, 300, 337, 386, 453, 459, 515 Jett v. Farmers' Bank, 47-1 Jett v. Locke, 683 Jewell v. Bannon, 490 Jewell v. Porter, 562 Jewett v. Fisher, 275, 300, 458 John's 1 Estate, 119 Johns v. Frick, 122 Johns v. Hardin, 376, 397, 462, 463 Johns v. Nixon, 514 Johnson's Appeal, 730 Johnson v. Branch, 562, 595 Johnson v. Burnside, 676, 680 Johnson v. Caldwell, 141 Johnson v. Collins, 212, 312 Johnson v. Crowley, 458 Johnson v. Dorough, 657 Johnson v. Farlow, 565 Johnson v. Fuller, 52.5 Johnson v. Gere, 492, 694, 923 Johnson v. Hathorn, 714 Johnson v. Herbst, 886 Johnson v. Hollensworth, 299, 358 Johnson v. Houghton, 911, 950 Johnson v. Jarrett, 206 Johnson- v. Jones, 484, 920, 933 Johnson v. Johnson, 568, 599 Johnson v. Long, 511 Jchnson v. McGhee, 65 Johnson v. Monell, 305 Johnson v. Nichols, 30)9 Johnson v. Nyce, 32(2, 390 Johnson v. Oppenheim, 383 Johnson v. Pryor, 259 Johnson v. Purvis, 596 Johnson v. Robertson, 141 Johnison v. Smock, 37 Johnson v. Sandhoff, 142 Johnson v. Silsfill, 662 Johnson v. Thompson, 308 Johnson- v. Thweatt, 179 Johnfeon- v. Tool, 40 Johnson v. Walton, 303 Johnson- v. Williamson, 703 Johnson* v. Wilson, 924 Johnson v. Wygant, 218 Johnston v. Beard ,~ 209, 22.1, 222 Johnston v. Gallery, 853 Johnston v. Garvey, 770, 835, 839 Johnston v. Haines, 61 Johnston v. Hougton, 23 Johnston v. Johnston, 218 Johnston v. Markle Paper Co., 304 Johnston v. Mendenhall, 40, 155 Johnston v. Piper, 153 Johnston v. Powell, 511 Johnston v. Scott, 54 Joiner v. Trust Co., 271, 361, 366, 735 Jones v. Balsley, 459 Jones v. Bland, 474 Jones 1 v. Blumenstein, 127 Jones v. Coffey, 111 Jones 1 v. Cohen, 712 Jones v. Cohitsett, 283 Jones- v. Davis, 311 Jones v. Fulghum, 496, 696 Jones v. Gallagher, 27-3, 581 Jones v. Gardner, 1, 38, 52, 322, 855 Jones v. Haff, 38, 798 Jones v. Hanna, 788 liv TABLE OF CASES [REFERENCES ARE TO PAGES] Jones v. Hazeltine, 275, 284 Jones v. Jones, 461, 472 Jones v. Keen, 254 Jones v. King, 562 Jones v. Mauley, 142 Jones v. Noe, 483 Jones v. Phillips, 38, 153 Jones v. Richmond, 386, 415 Jones v. Bobbins, 896 Jones v. Shackelford, 533 Jones v. Shay, 434 Jones v. Smith, 141 Jonea v. Sfaanton, 924 Jones v. Sweet, 625 Jonea v. Tarver, 51 Jonea v. Taylor, 197, 655, 798, 873, 891 Jones v. Waggoner, 461, 923 Jonea v. Warner, 278, 281, 283 Jones v. Warnock, 113 Jonea v. Wood, 714 Jopling v. Dooley, 911 Jordan v. Blackmore, 292 Jordan v. Chambers, 569 Jordan v. Deaton, 521 Jordan v. Eve, 328 Jordan v. Poillon, 822, 831 Joslyn v. Schwend, 896 Joslyn v. Taylor, 38 Josselyn v. dwards, 268 Jourdain v. Jcnmkiin, 356 Joyce v. Hagelstein, 195 Joyce v. Ryan, 707, 734 Joyce v. Shaffer, 213, 664 Joyer v. Shafer, 892 Joyner v. Crip, 542 Joyner v. Smith, 309, 471 Judd v. Randall, 299 Judice v. Kerr, 126 JudLson v. Wass, 38, 637, 654, 864 Julian v. Beal, 144 Junk v. Barnard, 204, 226 Juvenal v. Jackson, 729 Justice v. Button, 866 Justus v. Button, 21 Kahn v. Cherry, 325, 330 Kahn v. Mount, so:,, 814, 858 Kaiser v. Earhart. 582 Kane v. Rnrthwirk. 837 Katw v. Fiwher, 456 Kane v. Hood, 218 Kane v. Jones, 195 Kane v. Rippey, 646, 789 Kane v. Sanger, 412, 416, 416, 417 Dunmyer, 588, 400, 441 Kapiolani Kt. v. Atcherly, 402 Kaplan v. Bergmann, 868 Karahdin v. Lockett, 790 Kares v. Covell, 657 K ark IT v. Haverly, 215, 850 Karsell v. Cooper, 836 Katz v. Henig, 13 Katz v. Kaiser, 866, 869, 871 Kauflfelt v. Leber, 160, 161 Kauffman v. Walker, 92 Kavanagh. v. Kingston, 419 Keady v. Martin, 589 Kearney v. Hogan, 852 Keater v. .Ferguson, 897 Keating v. Gunther, 203, 913 Keating v. Korfhage, 326 Keating v. Price, 907, 912, 914 Kebler v. Cureton, 516, 659 Keeble v. Bank, 899 Keeler v. Wood, 433, 453, 460 Keep v. Simpson, 899 Keepers v. Yooum, 198, 850, 913 Keepfer v. Force, 619 Keifer v. Roger, 257 Keim v. Lindley, 23, 525, 528 Keim v. Sachs, 868, 869 Keitel v. Zimmerman, 214, 847 Keith v. Silberberg, 75 Keith Lumber Co. v. Oil Co., 594 Keller v. Asliford, 308 Kellogg v. Chapman, 607 Kellogg v. Ingersoll, 329 Kelloinr y. Malin, .'WO, 343, 348 Kellogg v. Robinson. .T2 I Kellogg v. Wood, 422, 423, 571 Kellum v. Ins. Co., 277, 321 Kelly v. Allen, 685 Kelly v. Bibb, 531 Kelly v. Bradford, 153 Kelly v. Brmver, 914 Kelly v. Calhoun. 64, 66 Kelly v. Dutch Church, 380, 385, 428, 443, 469 Kolly v. Jenness, 569 Kelly v. Ken-haw. 671 Kelly v. Tx>we. 343, 404, 508 Kelly v. Price, 445 K.-lly v. R. Co., 2. r >0 Kelly v. Kiley, 740 Kelly v. Solan. 126 Kelly v. Turner, 609 Kelly v. Wiseman, 469 Kelaey v. Cr Kime v. Kime, 210 Kimmel v. Benna, 592 Kimmel v. Scott, 909' Kinoaid v. Britain, 271, 272, 275,289 Kindley v. Gray, 878 King v. Breasie, 364, 429, 489 King v. Connor, 884 King v. Doolittle, 959 King v. Gil-son, 272, 584, 586 King v. Gunnison, 113, 731 King v. Jones, 274, 476 King v. Kerr, 345, 360, 402, 417, 424, 446, 451, 467, 468; King v. Kilbride, 307, 397 King v. King, 197 King v. Knapp, 253, 7'.99, 914 King v. Pyle, 239 King v. Rea, 589 King v. Savery, 194 King v. Thompson, 763 King v. Union Tr. Co., 340, 342, 346 King v. Wilson, 907 Kingdon v. Nottk, 274, 283, 415 Kingsbury v. Milner, 922 Kingsbury v. Smith, 456 Kingsbury v. Stoltz, 131 Kingston Bank v. Ettinge, 126 Kinney v. Jones, 879 Kinney v. Knoebel, 140 Kinney v. McCulloch, 403 Kinney v. Norton, 404 Kinney v. Watts-, 425, 443 Kinports v. Rjawson, 934, 936 Kinsman v. Loomis, 575, 592 Kintrea v. Preston, 23 Kip v, Hirsh, 832, 866, 867 Kirby v. Estill, 397, 462 Kirk v. Zell, 606, 617 Kirkendall v. Mitchell, 149, 357 Kirkland v. Little, 217, 792 Ivi TABLE OF CASES [REFERENCES ARE TO PAGES] Kirkland v. Wade, 114, 722 Kirkpatriek v. Downing, 228, 243, 762, 763 Kirkpatrick v. Pcarce, 318, 353 Kirkpatriek v. Miller, 403 Kirk wood v. Lloyd, 805 Kirtland v. Pounsett, 196 Kirtz v. Peck, 690 Kis-ter v. Pollak, 49, 669 Kitzmun v. C'arl, 447 Kleinberg v. Kinealy, 471 Kley v. Geiger, 312 Kling v. Realty Co., 794, 847 Klopp v. Moore, 160, 161 Klumpki v. Baker, 562 Knadler v. Sharp, 283, 346 Knapp v. Foley, 279, 284. 289 Knapp v. Lee/ 38, 484, 500, 662 Knapp v. Marlboro, 469 Knatchbull v. Grueber, 195, 201, 753, 915 Knedler v. Lang, 811, 812 Knepper v. Kurtz, 397 Knight v. Clinkscales, 314 Knight v. Ooleman, 512 Knight v. Crook ford. 212 Knight v. Maloney, 82J> Knight v. Schroader. 3S6, 739 Knight v. Thayer, 577, 589 Knight v. Turner, 481 Knipe v. Palmer, 158. 161 Kniseley v. Leath, 702 Knowles v. Kennedy, 584 Knowles v. Temple.' 309, 317 Knowlton v. Amy, 253 Knox v. Desplain, 794 Knox v. McMurray. 108 Knox v. Spratt. 542 Koch v. Husti*, 368 Koch v. Streirter, 192, 825, 841, 849 Koopke v. Winterfleld, 297, 394 Koger v. Kane, 500, 507, 918, 934, 936 Koliner v. Higgins, 41 Kolher v. K utter, 87 Kohlrep v. Ram, 785, 835 Kopp v. Kopp. 801 Kornegay v. Everett, 610, 955 Kortz v. Carpenter, 391 KoMhland v. Spring, 852 Kostenbader v. .Spoils, 797 KoKtenbader v. Pierce, 33/) Kountze v. Hollrmith. 198. 853 Krah v. Waiwmer, 76, 853, 854 Kramer v. Carter, 4O2, 403, 404, 407, MM Kramer v. Ricke. 715 Kraemer v. Adelsbergcr, 784 KratiHe v. Kniu-o. 20 Kreibich v. Mart*, 194, 802 Kreinbring v. Mathews, 319, 322 Kreitsch v. Mertz, 894 Krekeler v. Aulbach, 853, 861 Krewson v. Cloud, 264 Krotzer v. Clark, 852 Kruger v. Adams, 41 Krumm v. Beach, 238, 248, 251 Kuhn v. Freeman, 384, 909 Kuhner v. Parker, 485, 497 Kuhn's Appeal, 727 Kullman v. Cox, 780 Kuntzinan v. .Smith, 277, 386, 410 Kuratli v. Jackson, 540 Kurtz v. Hollingshed, 46 Kutz v. McCune, 324, 327, 331, 334 Kutzinger v. Knering, 905 Kyle v. Fauntleroy, 451, 453, 456 Kyle v. Kavanaugh, 154, 950 Kyle v. Febley, 304, 954 L. Lacey v. Marman, 292 Lacey v. McMillan, 199 Ladd v. Blunt, 144 Ladd v. Montgomery, 33.6 Ladd v. Myers, 309 Ladd v. Noyes, 280, 324 Ladd v. Weiskopf, 777, 782, 786 Laderoute v. Cliale. 308 Ladue v. Cooper, 335 I.adm-, In re, 840 Laevison v. liaird, -507 Lofargw v. Matthews, 482, 678 Lafferty v. Milligan, 314 Laidlaw v. Organ, 252 Lake v. Urutton, 256 L:iki- Krie L. Co. v. Cliilin-ki. 794 Lake Erie, etc., R. Co. v. Whitham, 72 Lallando v. West, 32* Lally v. Holland, 622 Lalor v. Tucker, 812 I^amb v. Baker, 390 Lamb v. Burbank, 477 Lamb v. Danforth, 275. 379, 408 Lamb v. De Vault, 649 Lamb v. James, 441, 662, 713 Lamb v. Kann, 594 I>am1> v. Smith, 739 Lamb v. Wakefielrl. 367, 594 Umb v. WilliH. 380 Iiiii1xl<>ii v. Sharp, 58 Umlx-rt V. Ktrtes. 395. 400. 426 I^amernon v. Marvin, 485. 502 Lamkin v. ReeHC, 85, 118, 6O4, 950 Liiiiinii.t v. Bowley, 955 I^amotte v. Stcidinger, 796 Lamprey v. Pike. 581 Lamprey v. Whitehead, 803 Ijimpton v. t'^her, 118, 662 TABLE OF CASES Ivii [REFERENCES ARE TO PAGES] Lancaster v. Roberts, 883 Lancaster v. Wilson, 93, 109, 110 Lancoure v. Dupre, 226, 763, 764 Land Co. v. Hill, 690, 924 Land Co. v. North, 386 Landford v. Dunkton, 119 Landsdowne V. Landsdowne, 955, 957, 960 Landt v. Mayor, 296 Lane v. Bommelman, 97 Lane v. Fury, 401, 406, 460 Lane v. Latimer, 755 Lane v. Patrick, 712 Lane v. Richardson, 311, 340 Lane v. Tidball, 500, 937 Lane v. Woodruff, 418 Lane v. Ziemar, 52 Lang v. Heden'berg, 1&5, 218 Lang v. Waring, 122 Lange v. Jones, 534, 934 Langenburg v. Dry Goods Co., 283 Langford v. Pitt, *879 Langford v. Selnies, 22 Langlow v. Cox, 170 Langsdale v. Xicklaus, 316 Langton v. Marshall, 68 Lanier v. Foust, 513 Lanier v. Hill, 259, 268, 660, 940, 961 Lanigan v. Kille, 442, 443 Lanitz v. King, 199 Lansing v. Quackenbush, 127 Lansing v. Van Alstyne, 389, 401 Lant v. Norris, 358 Lanyon v. Chesney, 536 Large v. McLain, 300 Larkin v. Trammell, 391, 446 Lasswell L. & I. Co. v. Langdon, 290, 456 Latham, v. Morgan, 926 Lathers v. Keogh, 316, 317 Lathrop v. Collieries Co., 212, 527, 534, 535 Latimer v. Capay Val. Co., 199 Latimer v. Wharton, 88 Lattin v. Vail, 485 Lauer v. Lee, 627, 631 Laughman v. Thompson, 106, 117 Laughery v. McLean, 482, 517 Laurens v. Lucas, 770 Lavender v. Lee, 604 Laverty v. Moore, 799 Law v. Grant, 250 Law v. Hyde, 620 Lawless v. Collier, 283, 293, 439, 451, 690, 699 Lawless v. Evans, 294 Lawless v. Mansfield, 549 Lawrence v. Beaubein. 956, 957 Lawrence v. Chare, 227 Lawrence v. Dale, 14, 38, 202 Lawrence v. Montgomery, 335 Lawrence v. Parker, 49 Lawrence v. Simonton, 219 Lawrence v. Sinter, 413, 416 Lawrence v. Taylor, 38, 212, 647 Lawrenson v. Butler, 537, 545 Lawton v. Howe, 439, 946 Lazarus v. Coal Co., 727 Lazzell v. Keenan, 538, 855 Leach v. Forney, 539 Leach v. Johnson, 192 Leach v. Leach, 855 Leach v. Rowley, 663, 790 Leahy v. Hair, 773 Leal v. Terbush, 484, 502 Leary v. Durham, 150, 379, 398, 482, 503 Learned v. Riley, 65 Leather v. Poultney, 466, 467, 469 Lebanon S ; av. Bank v. Hollenbeck, 623 Leddy v. Enos, 300, 387, 406 Ledowski v. Rubin, 340 Lee v. Clary, 562 Lee v. Dean, 233, 239, 747, 726 Lee v. Foard, 37 Lee v. Gardiner, 142 Lee v. Lee, 822, 840 Lee v. Porter, 551 Lee v. Russell, 224 Leerburger v. Watson, 536, 869, 870 Leet v. Gratz, 402, 439, 442 Leffingwell v. Elliott, 402, 439, 440, 459, 460 Leffingwell v. Warren, 805 Leflore Co. v. Allen, 569 Leftwich v. Neal, 70 Leggett v. McCarty, 498, 696, 923 Leggett v. Mut. Ins. Co., 245 Leiker v. Henson, 534 Leinhardt v. Kalcheim, 853 Leipold v. Epler, 305 Leird v. Abernethy, 918, 924 Lejeune v. Barrow, 450 Lejeune v. Herbert, 743 Leland v. Stone. ^04, 431 Lemle y. Barry, 216, 872 Lemly v. Ellis, 446 Lemon v. Rogge, 842 Le Moyne v. Quimby, 116 Lenehan v. College, 825 Lennig v. Land Co., 300, 387 Lenz v. Hobart, 388 Leo V. Deitz, 540 Leonard v. Austin, 489, 508 Leona- 1 v. Bates, 149, 217 Leonard v. Gary, 392 Leonard v. King, 545 Leonard v. Mills, 615 Leonard v. Pitney, 719, 746 Iviii TABLE OK CASKS [REFERENCES ARE TO PAGES] Leonard v. Woodruff, 803 Lerfing v. Seelig, 314 Lernmn v. Hulmer, 805 Le Roy v. Beard, 159 Leroy v. Harwood, 790 Lese v. Metzinger, 825 Lesesne v. Witfe, 878 Leslie v. Slusher, 45 Lesley v. Morris, 775, 853, 899 LeWnioh v. Sellers, 172, 195 Lessley v. Bowie, 514, 515, 516 Letcher v. Woodson, 226 Lethbridge v. Kirkman. 30, 788 Lethbridge v. Mytton, 301 Lett v. Brown, 670, 678 Levitzky v. Canning, 382, 458 Levy v.' Bond, 382 Levy v. Iroquois Bldg. Co., 818 LevV v. Hill, 857, 870 Levy v. Knepper, 529 Lew v. Newman, 827 Levy v. Riley, 117, 142 Lewenberg v. Johnson, 008 Lewine v. Gerardo, 812 Lewis v. Baird, 560 Lewia v. Bibb. 296 Lewis v. Bond, 32 Lewis v. Bosk ins, 549 Lewis v. Braithwnite, 22 Lewia v. Cook, 415 Lewi* v. Coxe, 843, 855 Lewis v. Davis, 481 Lewis v. Dav, 41 Lewis v. Gale, 529 Lewis v. Herndon. 807 Lewis v. Jones, 266 Lewis v. Lee, 227 Lewis v. Lewis, 390, 620 Lewis v. McMillen, 503, 630, 644, 663, 671, 683 Lewis v. Morton. 483, 695, 702 Lewia v. (Mote, 945 Lewia v. Ridge, 281 Lewis v. Rom, 436 Lewia v. West. 48ft Lewis v. White. 18. 41, 629. 642, 750 Lewi* v. Woodbine S. Bnnk, 201, 863 Ley v. Huher. 890 Leze v. Metfinger, 825 LiM>y v. Hutehinwnn. 410 Liber v. Parson, 433 Liddell v. Sims. 751 T/ieber r. Nicholson, 172 Liebling v. Renfer, 667 Liehman v. Hall, 854 Lift* AaHoriation v. Siddall, 194 Light foot v. Brower, 678 I.ighly v. Shorb, 727, 72, 730 Litipnthal v. Rierkamp, 198 Lillard v. Ruckers, 47 Linderman v. Berg, 463 Lincoln Sav. Bank v. Schneider, 808 Lincoln Tr. Co. v. Williams, Etc., Corp., 854 Lindenberger v. Rowland, 317 Lindeman v. Pinson, 43 Lindley v. Dakin, 277, 321 Lindley v. Lukin, 237 Lindsay v. Eastwood, 315 Lindsay v. Freexhnan, 585, 597 Lindsey v. Hambrecht, 770 Linlcous v. C'ooper, 828 Linn v. Barkey, 149 Linn v. McLean, 799, 901 Lincott v. Mozeman, 173, 810 Liiraey v. Ferguson, 678 Linsey v. Ramsey, 562 Linton v. Allen, *35, 308, 567, 664 Linton v. Hichborn, 860 Linton v. Porter, 116 Lister v. Batson, 226 Lippincott v. Wikoff, 777 Little v. Allen, 357, 949 Little v. Dodge. 70 Little v. Paddleford, 37, 647 Little v. Thropp, 489, 725 Littlefleld v. Getchell, 413 Littlefield v. Tinsley, 1ST, 655, 759, 764, 798. 830 Littleton v. Green. 364 Lively v. Rice, 308 Livingston Bank v. Sailing. 305 Livingston v. Iron Works. 276 Livingston v. McDonald, 62 Livingston v. Short, 932 Lloyd v. Farrell, 154, 743 Lloyd v. Griffiths. 152 Lloyd v. Jewell. 38, 500 Lloyd v. Kirk wood. Ill Lloyd v. Quimby, 157, 311, 338, 418, 434, 440 Lloyd v. Sandusky. 294, 425, 437, 438, 444 Locke v. Furze. 22-".. 443 Ixx-ke v. Hale. 320 Locke v. White. 592. 596 Locklinrt v. Ferrcy. 523, 78I> Lockhart v. Smith, 785 Lockmnn v. Reilly, 787. 830 Lockridge v. Footer. 202, 253, 745 Lock-wopan v. St*-* 1 !?. 562 v Case. 136 TABLE OF CASES lix [REFERENCES ARE TO PAGES] Logue v. Atkinson, 571 Loiseau v. Threlstad, 445 Lombard v. Kies, 856 London Bridge Acts, 158 Long v. Brown, 545, 604, 950 Long v. Chandler, 540, 541, 855 Long v. (Coal & Iron Co., 807 Long v. 'Crews, 61, 65 Long v. Hartwell, 699 Long v. Howard, 461 Long v. Israel, 57, 696, 934 Long v. Miller, 524, 525 Long v. Moler, 303, 31,1, 312, 316 Long v. Saunders, 670 Long v. Wheeler, 454, 460 Long v. Waring, 84, 122 Long v. Weller, 82 Longworth v. Taylor, 774 Loomis v. Bedell, 367, 394, 399, 401, 439, 460 Loomis v. Pingree, 593. 599 Loomis v. Wadhams, 227 Looney v. Reeves, 427, 431, 432 Loos, In re, 134 Lord v. Stephens, 792 Lot v. Thomas, 272, 275, 281, 571 Lothrop v. Snell, 385, 484 London v. Robertson, 114 Loucks v. Taylor, 266 Lougher v. Williams, 379 Loughran v. Ross, 278 Louisville Gas Co. v. Starin, 842 Louisville, etc., R. Co. v. Stone Co., 753 Lounsibery v. Locander, 37, 150, 382/533, 537 Lounsbery v. 'Snyder, 382 Lourance v. Robertson, 425, 428, 436 Love v. Berry, 116 Love v. Camp. 522. 542 Love v. Cobb. 522 Love v. Powell, 131 Lovelace v. Harrington, 928 Loveridge v. Coles, 219, 666 JU>vett v. Saw Mill Assn., 64 Lovingston v. Short, 695, 757 Lovitt v. Wilson, 803 Lowdermilk v. Corpenning, 134 Lowe v. Allen, 622 Lowe v. Lush, 771, 776, 797 Lowe v. Molter, 645 Lowe v. Warehouse Co., 319 Lowell v. Daniels, 588 Lowndes v. Chisholm, 956, 957 Lowery v. Nicols, 895 Lowery v. Yawn, 395 Lowery v. Tilleny, 274, 281, 284 Lowry v. Brown, 710 Lowry v. Cox, 235 Lowry v. Croghan. 372 Lowry v. Kurd, 690 Lowry v. MuWrow, 840 Lowther v. ComUh, 425 Lowther, Etc., Co. v. Gunnell, 904 Loyd v. Malone, 111 Lucas v. Chapeze, 661 Lucasi v. Scott, 539, 542 Lucas: v. Wilcox, 445 Luchetti v. Frost, 212 Luckett v. Triplett, 922, 932 Luckett v. Williamson, 37, 533, 812, 879, 904 Luckie v. McGlasson, 263, 268 Lucy v. Lexington, 274, 281 Ludlow v. Gilman, 497 Ludlow v. O'Neill, 836 Ludlow v. Vani Ness, 846 Ludwell v. Newman, 391 Ludwick v. Huntzinger, 714, 725, 727 Lukens v. Jones, 728 Lukens v. Nicolson, 471 Lull v. Stone, 36, 38, 40 Lumpkin v. Blewitt, 319, 446 Lundgren v. Kerkow, 398 Lunsford v. Turner, 404 Lurmian v. Hubner, 805 Luse v. Dietz, 890, 891, 892 Lutweller v. Linn ell, 221 Lutz v. Compton, 898 Lydall v. Weston, 175, 769, 776 Lyle v. Earl of Yarborough, 900 Lyles v. Kirkpatrick, 806, 878, 895 Lyman v. Gedney, 816 Lyman v. Stroudburgh, 801 Lynch v. Baxter, 113, 121, 756 Lynch, Ex parte, 459 Lvnch V. Livingston, 61 Lynch V. Merc. Trust Co., 13 Lyncn v. Rogers, 7'98, 836 Lyndon Lumber Co. v. Sawyer, 151 Lyon v. AnablCj 740 Lyon v. Day, 650 Lyon v. Kara, 48 Lyon v. McCurdy, 119 Lyon V. O'Kell, 650 Lyon V. Richmond, 954, 960 Lyons 1 v. Fitzpatrick, 705 Lyons v. Pyatt, 628, 894 Lyons v. Woman's League, 244 Lysney v. Selby, 746 M. Mabie v. Matteson, 160 Mabry v. Brown, 842 Macoaw v. Crawley, 806 Mack v. Patchin, 226, 442 Mackey v. Ames, 544, 884, 896, 897 Maokey v. Collins, 386. 514 Mackey v. Harmon, 326, 348 Ix TABLE OK CASES .Mackintosh v. Stewart, 274, iiTC, 370, 3i>0 .Madden v. Land Co., 429 .Madden v. Leak, 938 Madely v. liouth, 30 Meieder v. Carondelet, 372, 471 Magaw v. I^athrop, 197, 880 .Magee v. Ilallett, 500 Magec v. .McMillan, 313, 685, 923, 933 Maginess v. Fallon, 201, 778, 805 Maguire v. Marks, 128, 144 Maguiri' v. Kiggin, 2#3 Mahoney v. Allen, 87, b65 .Malioney v. S.IIUH-. 3d! .Mahoiiy v. Robbins, 483 Main, Sir Anthony's- Case, 213 .Maitlcn v. Mai t ten, 3OO, 3r, 368 Mnrbury v. Thornton, 386 Marcus v. C'lark. 203 Marden v. Leitnfnrple v. Scott. 320 Mnr*h v. Fish. 300 Marh v. Sheriff, 2G8 Marnh v. Thompson. 483 Mni>h v. Wyrknff. 88O Marshall v. 'C.ilman. 202 Marshall v. Cnldwell. 533 Marshall v. Haney, 226 Marshall v. Hopkins, 503 M.ar.shall v. \\ eimuger, 2J4, 852 Marston v. Bradsliaw, 72 Mansion v. llobbs, 272, 280, 2U5, 298, 3o2 Martin v. Anderson, 405, 703 Martin- v. Atkinson, 237, 405, 550 Martin v. Baker, 283 Mturtin v. Chambers, 670 Martin v. Colby, 43, 540 Martin v. Cotter, 776, 8O5 Martin v. Cowes, 462 Martin v. Dollar, OM) Martin v. Dwelly, '09, 398, 624, 7'12 Martin v. Foreman, 509 Martin v. Gordon, 420, 437 Martin v. Hamlin, 833 Martin v. Mammon, 295 A hurt in v. Long, 2>>9, 425 Martin v. Martin, 389 Martin v. MjcCormick, 945 Martin v. Merritt, 242, 539 Martin v. Xixon, 612, 622 Martin v. Porter, 825, 829 Martin v. Wharton, 494 Martinez v. Coggin, 740 Martinson v. Rcqua, 873 Marvin- v. Applegate, 7">5, 690 Marvin v. Bennett, 950 Maryland Const. Co. v. Kuper. 836, 873, 880 Mason v. Bovet, 14, 202, 756, 758 Mason v. Bnx-k, 09, 10., 73 Mason v. ('nldwell. 160 Mason v. {Vx>ksey. 395, 473 Mason v. Ham, 101 Mason v. Kellogg. 398, 46C Mason v. Lawing, 704 Mason v. Moulder, 624 Mason v. Swan. 703 Mason v. Wait. 1 12, 756, 758 Mast in v. Hall.-y. 78, 1 1 Malheiry v. Stewart. 454, 455, 459 Mather' v. Corliw. 362 M:ither v. Lehnvin. 825 >fathpr v. Stokeley, 290, 292, 294, 4. r >l Miither v. Tremty. 394 Mathoson v. Live Stock Co., 169 ^rathis v. Oowley. 923- Miatney v. Rat 1 iff. 849 Malta v. Henderson, 755 Mattewon v. Vaughn, 394, 3fH>, 421, 563. 693 ^fat thews v. Crowdcr, 924 TABLE OF CASES fei [REFERENCES ABB TO PAGES] Matthews v. Lightner, 772, 786, 788 Matthews v. Livingston, 330 Mattock v. Kinglake, 209 Matthison V. Wilson, 215 Maule v. Ashmead, 384 Maupai v. Jackson, 215, 645, 858, 882, 887 Mauzy v. Flint, 338, 426, 483 Mawson v. Fletcher, 532, 545 Maxfield v. Bierbauer, 253, 655 Max Meadows L. & I. Co. v. Brady, 935 Maxwell v. Bank, 278, 392 Maxwell v. Gregory, 637 Maxwell v. Wilson, 363 May v. Adams, 61'9 May v. Arnold, 578 May v. Ivie, 512 May v. McKeenon, 62 May v. Wright, 425, 429 Mayer v. Adrian, 203 Mayer v. Wooten, 361, 416, 446 Mayes v. Blanton, '637 Maynard v. Moseley, 705, 706 Mayo v. Babcock, 353 Mayo v. Purcell, 203 Mayo, Etc., v. Maxwell, 343 Mayor v. Baggatt, 372 Mayor v. Bulkley, 57 Mayor v. Mabie, 371, 382, 407 Maya v. Blair, 637, 810 Mays v. Swope, 898 McAbee v. Cribbs, 307 McAdams v. Bailey, 563 McAleer v. McMuflen, 623 McAllister v. Harmon, 808, 818, 887, 894 McAllister v. Landers, 443 McAlpine v. Reichenecker, 170, 639 McAlpin v. Woodruff, 425, 435, 443, 45 McAndrews &c Co. v. Bank, 329 McAninch v. Laughlin, 953 McArthur v. Oliver, 600 McArthur v. Weaver, 838 McBride v. Greenwood, 592 McCa.be v. Kenny, 808 McCaffrey v. Little, 84. 775, 777 McCahill' v. Hamilton, 808, 822, 867 McCall v. Hampton, 595 McCall v. W 7 ilkes, 361 MfeGann v. Edwards, 806, 824, 834, 894, 898- McCartney v. King, 84, 127 MeCarty v. Helbling, 167, 789 McCarty v. Leggett, 280, 283, 340, 584 McCasland v. Life Ins. Co., 611, 619 Mr-Casky v. Graff, 145 McCauley v. Moore, 196 McClaugherty v. Croft, 557 McClennan v. Prentice, 584, 692, 698, 941 McClerkin v. Sutton, 292 McCloat v. Floral Park Co., 221 McClure v. Campbell, 303, 316 McClure v. Gamble, 412, 425 McClure v. McClure, 287, 425 McClure v. Raben, 595 McConnaughey v. Bennett, 391, 409, 410, 411, 421 McGomb v. Wright, 816, 900, 803 McConihe v. Fales, 694 McConnell v. Downs, 402 McConnell v. Dunlop, 239, 533 McConnell v. Little, 482 McConnell v. Smith, 113 McCool v. Jacobus, 38, 652 McCord v. Massey, 322, 552 McCorkle v. Rhea, 119 McCormick v. Marcy, 426, 462 McCoy v. Bayley, 612 McCoy v. Lord, 405 McCracken v. Flanagan, 99 McCracken v. San Francisco, 195, 685, 686 McCracken v. Wright, 591 McCrady v. Brisbane, 283 McCrath v. Myers, 498 McCraven v. McGuire, 63, 7<2 McCrillis v. Thomas, 400, 401 McCroskey v. Ladd, 172, 810 McCulloch v. Bauer, 204 McCulloch v. Gregory, 779 MeCullogh v. Boyd, 664 McCullogh v. Estis, 85 McCullough v. Cox, 503 McCusker v. McEvoy, 577 McCutchen v. Klaes", 482 MDaniel v. Bryan, 690 McDaniel v. Evans, 193 McDaniel v. Grace, 481, 501, 503, 506 McDaniels v. Flower Brook Mfg. Co., 51, 64 McDennis v. Finch, 790 McDermott v. Chatfield, 630, 788 McDermott v. MeDerrnott, 815, 847 McDill v. Gunn, 304 McDonald v. Bach, 869, 892 McDonald v. Beall, 247, 706 McDonald v. Green, 484, 696, 933 McDonald v. Hanson, 138 McDonald v. Morgan, 48 McDonald v. Vaughan, 484. 755 McDonald v. Ward, 330, 387, 391 McDonnell v. Downs, 462, 464 McDonnell v. Milholland, 609 McDonough v. Cross, 141 Ixii TABLE OF CASES McDonough v. Martin, 367, 370 McDougal v. Dixon, 844 CilcDougal v. Schneider, 833 McDowell v. Hunter, 397 McDowell v. McKesson, 201, 628 McDowell v. Milroy, 343, 51O McDunn v. Des Moines, 690, 926 McKlya v. Hill, 900, 924 MbFadden v. Rogers, 619 McFerran v. Taylor, 529 McGary v. Hastings, 388, 394, 399, 402, 406, 440 McGavock v. BeH, 83 McGarrahan v. Mining Co., 180 McGee v. Carrico, 759 .MrCiv v. Wallis, 142 McGhee v. Ellis, 130, 144 MeGhee v. Jones, 482, 657, 695, 925 McGinnis v. Noble, 553, 554, 555, 726 McGlyun v. Maynz, 853 MoQoodwia v. Stephenson, 419 McGoon v. Scales, 94 Mt-Gowan v. Bailey, 718 McGowan v. Meyers, 325, 332 McGown v. Wilkins, 87, 92 McGrane v. Kennedy, 775 McGrew v. Harmon, 448 McGuckin v. Milbank, 339, 340, 343 M.-CufTey V. Hawes, 425, 430, 451, 453* McGuire v. Bowman, 807 MrlJuirp v. Kly, 131 McIIany v. Schenck, 141 IfeHargue v. Calchina. 332 McHenry v. Yokum, 503, 505 MHiid'ie v. Mi-mian. ^77. 7 "'., 0&1 Mrlnerny v. Beck, 17 Mdnnis v. Lyman, 380, 394, 581, 583 Mclntosh v. Smith, 126 M'-Intyre v. Long, 707 Ifblra v. Walker. :.:. McKay v. Carrington, 759, 879, 880, 887 ii v. Mill, 828 ' v. I 1 , tin. \ :\'.}. 454, 458, 460 M< Kee V. Brandon, 227 M<-Kei-n v. I'.raiiplaii.l, 7.~>l>, 676 M.-KfMinan v. Dou^liman, '.W3, 312 M- Killip v. PoHt. 400 M'-Koniicy v. Sett ! McKinney v. .Tiun--.. iM. Kinncy v. Watt,, 237, 911 Mt-KiiiJiio v. StnJTi.nl, 64 MrKluroy v. Tnlar.-. 140 M.-Koy v. C'hilM, 662 Md.ain v. OonHer, in v. Alli^.n. 368 McLane v. Petty, 810 TO ?AGESj McLarin v. Irvin, 681, 760, 8*10 McLaughlin v. Brown, 808 Mclaughlin v. D,aniel, 144 MtLaughlin v. Miller, 316 McLaurin v. MvLaurin, 110 ^IcLaurin v. Parker, 659 Aklx'an v. Connepton, 511 McLean v. Webster, 404 McLeery v. Mclx?ery, 600 McLemore v. Mabson, 259, 481, 685, 928, 933 McLennan v. Prentice, 294, 393 McLeod v. Barnum, 497 McLeod v. Skiles, 303 M'.-Lrod v. Snyder, 2-18 McLogan v. Brown, 131 ..\U-l^,\\ry v. Cr..<_'han. 226, 372 McMahon v. Stewart, 305 -M M anus v. Black mar, 39, 40 MrManus v. Cook, 759 McMamiN v. Keith, 84, 91 McMath v. Johnson, 665 Mi-Michael v. Russell, 343, 34.". McMillan v. Reeves, 121 Mi-Mullan v. Butler Co., 391. 395 McMullin v. Wooley, 324. 4ns McMurray v. 1 "let.-her, 8 McMurray v. Spicer, 201, 898 M< Murray v. St. Louis Oil Co., 953 Mt-XVr V. Compton, 226 M.-Xally v. I la\ nr,. 120 McXally v. Palmer, 873 Mi-Xanuara v. Arthur, 19 MVX'amara.v. Pengilly. 4!>, 210 McXary v. Campbell, 891 MrXeal v. Calkins. 708 MrXear v. M-Cimib,-r. :iii7. 451 MeXeill v. Fuller. Sn. 880 ^[eXw v. Walker. M.-Xntt v. Xellan-. 77.".. M. -riiei-M.il v. Ki-'e. 22. 303 M.-I'lier-.n v. Srha.le. 7M4. SOS, 914 MVl'licr-.n v. Smith. 770, 803 Mel'ike v. Hr.it. .11. :il<'.. >r.-<.>neen v. ( li..teaii. 528, 529 \f. (.hirni v". l-anpihar. 77!. 907 >f(( 1 )ii.-en v. State Bank, 667 M. Ha.-' v. I'urnii.rt. 436 M< "I'u.-krr v. Talari. 616 MI \'. \ V. Meiv.int ile. Cn., 4ft \r.-\\liirter v. SuatTer. 4SO. 585, 698 MeWhnrter V. Forney. 32 ( . M. -Williams v. Jenkins. 6S2 MrWillinms v. T/on>r, 210 M. -William* v. Xi-ley. :>02 ^35 M.-a.l v. F.,v :7. 172. 201 Mead V. .Ti.lilixill. l.'.J. l.'ift. 944 Mead v. Marten-. 771. S57 TABLE OF CASES Ixiii [REFERENCES ARE TO PAGES] Mead v. Stackpole, 391 Meade v. Boone, 364, 400 Meade v. Jones, 364 Meadows v. Hopkins, 549 Meadows v. Meadows, 119 Meadows v. Michel, 868 Means v. Brickell, 816, 516 Meason v. Kaine, 223, 239 Mech. Bank v. Cleland, 907 Mech. Sav. & B. t. Assn v O'Connor, 83 Mecklem v Blake, 283, 295, 336, 691 Medina v. Stoughton, 707 Medlar v. Hiatt, 324, 332, 345 Medlicot v. O'Donel, 199 Meek v. Sprachm, 941 Meeks v. Bowerman, 381 Meeks v. Garner 250 786 889 Meeks v. Meeks, 396, 401 Melilcharek v. Calkins, 265, 702 Melick v. Cross, 324, 533, 852 Mellen v. Boarman, 117, 129, 160 Mellon v. Webster, 41 Mellon's Appeal, 553, 559, 726 Melton v. Coffelt, 216 Melton v. Smith, 528 Memmert v. McKeen, 273, 331, 332 Menard v. Massey, 590 Menasha &c. Co. v. Nelson, 362 Mengel Box Co. v. Ferguson, 735 Menifee v. Marye, 100, 103, 550 Merc. Trust Co. v. So. Park Res. Co., 100, 271, 289, 454, 459, 460 Mercer Co. Bank v. Hayes, 90 Merchants' Bank v. Harrison, 62 Merchants' Bank v. Thompson, 840, 888 Merch. Nat. Bk. v. Otero, 282, 426, 446 Merges v. Ringler, 85, 869, 870 Merriam v. Rauen, 136 Merrill v. Merrill, 215 Merrill v. Montgomery, 64 Merrill v. Suing, 385, 471 Merriman v. Norman, 253, 924 Merritt v. Byers, 568 Merritt v. Gonley, 69:1 Merritt v. Harris, 592 Merritt v. Hunt, 169, 703, 9>31 Merritt v. Morse, 459, 463, 464 Merritt v. Yates, 75 Mervin v. Vanlier, 91, 122 Mervin, v. Smith, 111 Mesa Market Co. v. Crosby, 16, 17, 35, 774 Meservy v. Snell, 45 Meshew v. Southworth, 887 Messer v. Oestrich, 359. 445, 451 Mesick v. Sunderland, 177 Messinger v. Foster, 812 Metcalf v. Dallam, 898 M. E. Church v. Robinson, 844 2M. E. Church Home v. Thompson, 782, 783 Methvin v. Bixley, 122, 123 Mette v. Dow, 435, 451, 453 Metz v. McAvoy Brewing Co., 292 Meyer v. Boyd, 805, 836 Meyer v. Madreperia, 774, 816 Meyer v. Shoemaker, 734 Meyers v. Coal Co., 790 Meyers v. Markham, 49, 521 Meyers v. Ringler, 907 'Mhoon v. Wilkinson, 221 Michael v. Michael, 614 Michael v. Mills, 6*90 'Michel v. Tinsley, 611, 61G Mich. Park Asso'n v. Ry. Co., 571 >Mickel v. Hicks, 120 Middlebury College v. Cheney, 575, 584 Middlekauff v. Barick, 484, 695, 707, 946 Middlemore v. Goodale, 413 Middleton v. Findla, 48, 836 Middleton v. Sel'by, 900, 901 Middleton V. Thompson, 461, 464, 468 Midgett v. Brooks, 357, 358 Mid Great West R. Co. v. Johnson, 960 Miesell v. Ins. Co. 792 Miles v. Furnace Co. 529 Milkman v. Ordway, 530 Miller . Argyle, 500, 937 Miller v. Avery, 126, 398, 485, 489, 694, 934 Miller v. Bayles, 366, 368 Miller v. Bentley, 363 Miller v. Calvin & Co., 852 Miller v. Cramer, 806, 810 Miller v. De Graff enreid, 306 Miller v. Duncan, 126 Miller v. Ewing, 359, 599 Miller v. Feezor, 91 Miller v. Finn, 122 Miller v. Fraley, 710 Miller v. Halsey, 440 Miller v. Lamar, 484 Miller v. Long, 483. 656, 695 Miller v. Macomib, 79'f, 842 Miller v. Miller, 924, 925 Miller v. Owens, 657, 932 Miller v. Parsons, 478 Miller v. Rhuman, 616 Miller v. Watson, 734 Miller V. Weinstein, 780 Milligan v. Cooke, 916 Millikan v. Hunter, 76 Millinger v. Daly, 76 ixiv TABLE OF CASES [ REFERENCES ARC TO PAGES] Million v. Riley, 125 Mills v. Abraham, 485 Mills v. Bell, 425, 4-3*3 Mills v Catlin, 271, 322, 350, 356, 367 Mills v. Herndon, 121 Mills v. Loekwood. 617, 618 Mills v. 'Morris, 941 Mills vi Rice, 472 Mills v. Saunders, 484, 509 Mills v. Seminary, 620 Mills v. Tray lor. 512 Mills v. Van Voorhis, 203 Milmore v. Murphy, 544 Mi lot v. Reed, 300, 313 Milton v. Crawford, 218, 769, 880 Mihvard v. Earl of Thanet, 895 Mincey v. Foster, 873 Miner v. Beekman, 142 Miner v. Clark, 466, 467 Miner v. Hilton, 49, 214, 869 Minor v. Edwards, 197 Minor v. Natchez, 131 Minto v. Moore, 883 Mischke v. Baughn, 436, 448 Miss. Saw-Mill Co. v. Douglas, 563 .Miss. R. Logging Co. v. Whelihan, 357 Missouri K. & T. R. Co. v. Pratt, 637, 650 Missouri VaL Land Co. v. Bushnell, 843 Mitchell v. Allen, 870 Mitchell v. Barry, 649 Mitchell v. Christopher, 707 Mitchell v. De Roche, 673 Mitchell v. Dibble, 509 Mitchell v. Hazen, 160, 289, 433, 452 Mitchell v. Kintzer, 109 Mitchell v. Mitchell, 624 Mitchell v: McMullen, 115, 484, 924 Mitchell v. Petty, 562 Mitchell v. PilMmry. SI 2, 318. 353 Mitchell v. Pinckney, 82, 86, 91, 102. 196 Mitchell v. Sherman, 662 Mitchell v. Stanley, 348 Mitchell v. Stineniitz, 767, 773 Mitchell v. Vaughan, 386 Mitchell v. Warner, 280, 324, 361, 410 Mitchell v. Woodwn, 524. 592 Mitchell v. Zimmerman. 743 MitoheniT v. Holme*, 829, 836 Mix v. Beach, 526 Mixon v. Hiirli'-nn. 274, 294 Moak v. Bryant, 77 Monk v. Jon n son, 443 Mobile Co. v. Kimball. 520 Mobley v. Keys 37, 640, 657 Mul>ley v. Quattlebaum, 874 Mock v. Chalstrom, 879 Moggridge v. Jones, 4*6, 502, 663 Mohr v. Maniere, 121 Mohr v. Parmelee, 326, 345, 348, 444 Mohr v. Tulip, 121 Molina v. Ramirez, 505 Moliter v. Sheldon, 407 Molloy v. Kgan, 896 Molloy v. Sterne, 28, 788 Monagan v. Small, 770, H40 Monarch &c. Co. v. Washhurn, 880 Monarque v. Monarque, 828 Monell v. Colden, 719, 747 Monell v. Donglan, 309 Monroe v. Skelton, 614 Monson v. Stevens, 218, 666, 873 Monte v. Allegre, The, 122 Montgomery v. North Pac. R. Co., 438, 441 Montgomery v. Pac. L. Co. Bureau, 773, 774 Montgomery v. Reed, 275, 289, 295, 297 Montrose Realty Co, v. Zimmerman, 846 Moody v. Leavitt, 460 Moody v. Spokane R, Co., 38 Mooney v. Burchard, 402 Moore v. Allen, 129, 144 Moore v. Appleby, 771, 784, 830 Moore v. Beard, 499 Moore v. Buckham, 76 Moore v. Cooke, 622, 926 Moore v. Elliott, 842 Moore v. Ellsworth. 502 920 Moore v. Frankenfield, 436 Moore v. Hazelwood, 952 Moore v. Hill, 659 Moore v. Hunter, 180 Moore v. Johnson, 364 Moore v. Johnston, 277 Moore v. Lanham, 386 Moore v. LiHjoharms, 542 Moore v. -McKie. 436 Moore v. Merrill, 2S1, 421 Moore v. Munn,-6(i7, 615 Moore v. Neil. 113 Moore v. Price, 195 Moore v. Rake, 562. 675 Moore v. Taylor, 817 Moore v. Yawe, 62 Moore V. Vail, 385, 391, 393. 304, 395, 39. 400 Moore v. Vogcl, 512 Moore v. Weber, 382, 475 Moore v. Williams, 771, 781, 782, 794, 803. 859 Moore v. Wingate, 612 Moore's Appeal, 41 TABLE OF CASES Ixv [REFERENCES ABE TO PAGES] Moot v. Bus. M. Asso., 173, 792, 822, 73 Moralis v. Mathews, 563 Moran v. Stader, 835 Morange v. Morris, 15, 38, 214, 875, 896 More v. Smedburgh, 190, 671, 756, 872, 875 Moredock v. Williams, 662, 926 Morehouse v. Heath, 305 Moreland v. Atchinson, 253, 742, 944, 959, 961 Moreland v. Metz, 349, 350, 425, 451 Morenhout v. Barren, 533 Morgan's Appeal, 120 Morgan v. Boone, 549 Morgan v. Bouse, 124 Morgan v. Brast, 912 Morgan v. Davis, 380 Morgan v. Dibble, 856 Morgan v. Eaton, 39 Morgan v. Famed, 119 Morgan v. Glendy, 937 Morgan v. Godbee, 365 Morgan v. Haley, 402, 459. 465 Morgan v. Morgan, 53 855 Nel*, In re, 73 Needham v. Salt I*ke City, 120 Neel v. Carson, 141 Neel v. Hughe*, 51 Noel v. Pru-kett, 655. 657 Nceley v. Lane, 311, 312 Neewn v. Bray 385 Neff v. Rubin, 854 Xegley v. Lindsay. 202. 068 Neher v. llruix-Kmnn, 800 Neill v. McClung. 537 Xelms v. Prewitt, 494, 921 Nelson v. Butler. 838 \i-l- "ii v. Jaonba, 806 Nelson v. Hamilton Co., 743 Nelson v. Matthews, 20, 433 Nelson* v. Harwood, 557 Nelson v. Jacobs, 806 XeJson v. Owen, 927 Nelson v. Russell, 840 NeKhorp v. Howgate, 542 Xerhooth v. Althouse, 601 Nesbit v. Brown, 420, 428 Xesbit v. Campbell, 508 Xesbit v. Nesbit, 420 Xesbit v. Miller. 213 Xewark Sav. Inst. v. Jones, 20, 22, 150, 204 Xew Barb. Bridge Co. v. Vreeland, 20 Newberry v. French, 38, 083, 798 Newtoerry v. Ruffin, 4 Xewbold v. Peabody Heights, 204, 332, 491 Xew Brunswick R. Co. v. Conybeare, 25Q Xewcomb v. Bracket, 15 Newcomt) v. Presbrey, 359 Newt-ember v. Brooke, 1 1 1 Newell v. Banking Co., 571 Newell v. Turner, 201 Xewman v. Glea^on, 904 Newman v. Samuels, 67 Newman v. Sevier, 286, 337, 410 Newmyer v. Rourfch, 3O3, 329 Newnan v. Maclin, C81, 831, 912 Newsom v. Davis, 836. Xewsom v. Graham, 503 Xewsom v. Harris, 227 Xewsom v. Thompson, 47 Xewton v. Bower, 657 Newton v. Easterwood, 5G6, 568, 569 Xewton v. Foster, 495 . N. Y. ic. Coal Co. v. (Jrahaui, 361, 391, 475, 491 X-. Y. City v. Transp'n Co., 340 N- Y. Liffe Ins. Co. v. Gilhooly, 793. N. Y. Life Ins. Co. v. Lord, 866 N. Y. Sec. i Tr. Co. v. Schomberg, 831 N. Y. Steam Co. v. Stern, 812 Xcyland v. Neyland, 512 Xichol v. Nichol, 207 Xicholas v. Jones, 160 Xichols V. Alexander, 581 Xichols v. Corbett, 31 Nichols v. Distder, 134 Xichols v. Freeman, 228 Xichols v. Walters, 280, 290, 431 Nicholson v. Caress, 809, 611 Nicholson v. Condon, 779 Nirholmn v. Lieher, 198, 794, 810, 876 Nicholson v. Sherard, 551 TABLE OF CASES Ixvii [REFERENCES ARE TO PAGES] Nicholson v. Slaughter Co., 363 Nicholson v. Wadsworth, 523, 670, 755 Nickles v. Haskins, 125 Nicol v. Nicol, 259 Xicoll v. Carr, 677, 756, 757, 770, 784, 862 Nicoll v. Mason, 616 Nieto v. Carpenter, 590 Xiles v. Harmon, 705 Nind v. Marshall, 366 Nixon v. Carco, 598 Nixon v. Hyserott, 159 Nixon v. Moore, 856 Nodine v. Greenfield, 831, 887 Noell v. Gill, 605 Noke v. Awder, 420, 422 Nokesr v. Lord Kilmorey, 898 Nolan v. Felton, 439 Noojin v. Carson, '683 Xoonan v. Illsley, 581, 584, 691 Noonan v. Lee, 392, 481, 693, 706 Norfolk & W. R. Co. v. Mundy, 289 Norgren- v. Edson, 134 Norman v. Norman, 12i5, 951, 953 Norris v. Evans, 511 Xorris v. Hay, 259, 740 Norris v. Kipp, 251, 472, 473 Northcutt V,. Hume, 446 N: Highlands Co. v. Holt, 785 N. Pac. R. Co. v. Montgomery, 385, 387, 453 Northridge v. Moore, 233, 234, 238 Xorthrup v. Ackerman, 571 North Wyo. Land Co. v. Butler, 215 Norton v. Babcock, 312, 347, 440 Norton v. Colgrove, 340 Norton v. Herron, 161 Nocton v. Jackson, 482, 510 Norton v. Marten, 959 Norton- v. Neb. L. & Tr. Co., 90, 91 Norton v. Stroud Bank, 707 Norton v. Young, 758 Nosier v. Hunt, 292, 483 Nott v. Ricard, 31 Nouaille v. Flight, 32, 788, 911 Novak v. Orphans' Home, 807 Nowler v. Coit, 142 Nowlin v. Pyne, 609, 611 NoyesJ v. Brown, 210, 219, 663 Noyes, v. Johnson, 25, 808, 810 Noyes v. Phillips, 245 Nugent V. Priebatsch, 622 Nungess-er v. Hart, 316 Nunnally v. White, 410 Nutting v. Herbert, 299, 425, 436, 438 Nyce v. Obertz, 322, 346 0. Oakes v. Buckley, 17, 219 Oakey v. Drummond, 484 O'Bannon v. Paremour, 562 O'Beirne v. Buller, 529 Obernyce v. Obertz, 916 Oberthier v. Stroud, 123, 124 Occidental Realty Ctt v. Palmer, 683 Ocean City Asso'n V. Creswell, 807 Ochs v. Kramer, 803 O'Connell v. Duke, 364, 952 O'Connell v. First Parish, 313 O'Connor v. Enos, 303, 311, 321, 349 O'Connor v. Hugging, 807, 814 Odell v. Claussen, 846 O'Ferrall v. Simplot, 75 Officer v. Murphy, 756, 757, 761 Ogiburn v. Whithnv, 513 Ogden V. Ball, 292, 293, 395, 448 Ogden v. Yoder, 938 Ogilvie v. Hall, 382 Ogooshevits v. Wahijas, 216, 520, 523, 848 Ohio & Miss. R. Co. v. McCarthy, 754 Ohling v. Luitjens, 687, 695, 737, 939 O'Kane v. Kiser, 856 O'Kelly v. Gholston, 141 Old Colony Tr. Co. v. Chauncey, 545, 546 Oldfield v. Stevenson, 482, 498, 929 Olds v. Cedar Works, 575 Oliver v. Bush, #60 Oliver v. Dix, 8QO Oliver v. Hallam, 904 Oliver v. Holt, 563 Oliver v. Kneedler, 735 Oliver v. Love, 288 Oliver Min. Co. v. Clark, 521 Oliver v. Piatt, 710. Olmstead v. Ransom, 319 Olsen v. Rogers, 890 Omaha v. Omaha Water Co., 212 O'Meara v. McDaniel, 292 Omerod v. Hardman, 901 O'Neal v. Miller, 740 O'Neill v. Douthett, 651, 868 O'Neill v. Vanderberg, 589 O'Neill v. Van Tassell, 326, 858 Onions v. Tyrer, 957 Ontario Bank v. Lansing, 125, 127 Opejon v. Engero, 886 Oppenheim v. McGovern, 654 O'Reilly v. King, 772, 782, 783, 788, 829 Orendorff v. Tallman, 747, 842 Organ v. Bunnell, 574 Ormsby v. Terry, 83, 85 Orme v. Boughton, 14. 274 Ormsby v. Graham, 521, 522 Osbald'iston v. Askew, 797, 799, 800 Ixviii TABLE OF CASK- [ REFERENCES ARE TO PAGES] i v. Dodd, 670. 7 ">.-, o-l,.. me v. Atkins, 333, 338 lie v. Breman, 905, 911 lie v. Fair ley, 216, 534 Osl>orne v. Harvev, 30 O?borne v. McMillan, 161. 162 Osborne v. Nicholson, 383 O>!.nn:e V. Rowlett. Ml. 786 OAurn v. PriUhard, 301, 386 Osgood v. Franklin, 753 O.-terbury v. I'nion Trust Co., 146 In nit v. Shoemaker, 600 Obteruian v. Baldwin, 124 O-trow v. Lesser, 344 O'Sullivan v. Griffith, 36C, 706 Oswald v. Sproehlne, 612 . Sprague, 592 Ottinger v. Strasburger, 807, 808, 812 Otto v. Young, 523, 650 Outlaw v. Morris, 759 Overhiser v. MciAdlwter, 289, 699 Overly v. Tipton, 216 Ovcr.-treet v. Dobson, 315 Owen v. Brookport, 562 Owen v. \orris, 217 ouen v. Pomona L. W. Co., 201, 263 Owen v. Thomas, 385, 395, 474 Owens v. Cowan, 879 dv.ens v. Rector, 249, 690 Owens v. Salte.r. f>UN Owings v. Hald win, 798, 799 Owings v. Thompson, 21 P. Pacific Tel. Co. v. Tel. Co., 790 I'a.-k v. Gaither, 25, 520 Parkard v. I -her. 172 r. Adam, 33 Page v. Brown, 158 Page v. Greeley, 198, 788, 810 Page v. Lashley. 321 Pagct v. Melchior. S32. 841, 866 Paine v. Kemp. \w. HJ'. v. Miller. 166 Painter v. Henderson, 178 v. I'larl Palmer v. Chandler. 1 1 1 Palmer v. Hud^-n \ . |; v . Co.. 2:21 Palmer v. Ixx-ke, 777 Palmer v. Morrison, 843 Palmer v. RielmnlMm. 191, 196, 901 Palmerton v. Hoop, 121 PangWn v. Miles. 659, 850, 865 : raj. in v. Goodrich, 4.1, 1C9 1'iirham v. Parhnm, 506 Parham v. Rjuidolph. 240, 261, 267, "!_>. 40 ...Iden, 371, 537. 6-".2 Parish v. Whitney, 324 Park v. Bates, Ml, 3!s. 4:53. 434. 400 Park v. Brooks, 7:,:; Park v. Johnson. 7.">4. 7('.j. 858 Parke v. Chadwick. 4:10 Parker v. Baker, (i-2 Parker v. Brown. 271. 272, 289, 290 Parker v. Cti!l>ertsnn. 483 Parker v. Dunn, :>!.'> Parker v. Gcxldard, 136 Parker v. Hart. 1'.'7 Parker v. Join--.. ."iti2 Parker v. Kane, 103 Parker v. McAllister. 37, 216 Parker v. Parker. 300, 939 Parker v. Parmele. Parker v. Porter, 789, 834 Parker v. Richardson, 380, 475 Parker v. Starr, 619 Parker v. Teas. 623 Parkins v. Williams, 932 Parkinson v. Wuiild>. 292 Parkinson v. Sherman, -i!7. 502, 509, 694 Parks v. Brooks, 750, 757, 855, 928 Parks v. .lacksiin. 799 Parkside Realty Co. v. McDonald, 791 Parlin v. ne, 611 Parmly v. Head, 770, 773 Parr v. Lovegrove. 805 Parsons v. Gilbert, 884k Parsons v. Kelsn. IMS. 791 Parsons v. Smith. 637 Partridge v. Hatch. 1 1"> Part ridge v. Patton, 599 Pa-lay v. Martin, 901 Patchell v. Garvin. 318 Pate v. Banks. 31!) Pate v. Mitchell. 30. 280, 552 Pate v. McConnell, 874 Paterson v. Long, 32. 916 Paton v. I'.n-lm, i. SK, !M1. 915 Paton v. Rojior-. :.:!2 Patrick v. l.-a:'. Patterson v. Dwinel. 6on v. Ste\\art. J-'-l. 7.")6, 706 -on v. S 320 ylnr. 697 -..n v V.i - 3.')3 v. C:implin. TABLE OF CASES Ixix [REFERENCES ARE TO PAGES] Patton v. England, 202, 501, 744 Pattern v. Forgey, 563 Patton v. Kennedy, 383, 467,472,473 Patton v. McFarlane, 385, 395 Patton v. Schneider, 365 Patton v. Taylor, 481, 924, 942 Patton v. Thompson, 110 Paul v. Kenosha, 446 Paul v. Witman, 397, 412, 465, 467 Payne v. Atterbury, 681 Payne v. Ca)bell, 70$ Payne v. Echols, 154 Payne v. Markle, 810 Paxson v. Lefferts, 355 Paxton v. Sterne, 141 Peabody v. Brown, 47 Peabody v. Phelps, 746, 747, 718, 719 Peak v. Gore, 863, 877 Pearsoll v. Chapin, 248;, 678, 679, 739> 742 Pearsoll v. Frazier, 221 Pearson v. Ford, 335, 343 Pearson v. Davis, 289 Pearson V. Seay, 640 Pearson v. Wood, 483 Pease v. Christ, 320, 321 Pease v. Warner, 335 Peay v. Capps, 670, 779 Peay v. Wright, 746 . eck v. Hensley, 395 Peck v. Houghtaling, 295, 298, 358, 470, 471, 474 Peck v. Jones, 727 Peckham v. Stewart, 835 Peden v. Moore, 481, 502 Peebles v. Stephens', 671, 755, 760, 763, 940 Pee Dee Stores Co. v. Hainer, 342 Peeler v. Levy, 541, 542 Peers V, Barnett, 500, 660, 811, 913, 937 Peers v. Lambert, 913 Peet v. Beers, 555 Pegler v. White, 774, 776 Pell v. Pell, 837 Pelletreau v. Jackson, 591 Pena v. Armstrong, 623 Pence v. Duval, 281, 379, 383, 425, 472 Pence v. Gabbert, 320, 386, 419, 452 Pence v. Langdon, 534 Pence v. Rhonernus, 414, 465, 469 Pendleton v. Button, 75 Penfield V. Clarke, 38 Penn v. Preston, 725 Pennington v. Clifton, 144 Pennsylvania v. Sims, 725 Penna. Min. Co. v. Thomas, 171 Penny v. Woody, 373, 418 People v. Gilon, 316, 650 People v. Globe Ins. Co., 779 People v. Life Ins. Co., 840 People v. Mitchell, 265 People v. Open Board, etc., 779, 883, 894 People v. Sisson, 482 People v. Society, 590 People v. Stock Brokers' Building Co., 786 People's SaV,. Bank v. Alexander, 328 Peo. Sav. Bank v. Lewis, 571 Peo. Sav. Bank v, Parisette, 53, 540 Pepper v. Rowley, 482 Peques v. Mos'by, 640, 665 Perciful v. Kurd, 695 Percival v. Colonial Inv. Co., 326 Perkins v. Bamford, 485 Perkins V.. Dickinson, 606 Perkins v. Ecle, 913 Perkins v. Fairfield, 9*6 Perkins v. Hadley, 228, 412, 545, 763, 681 Perkins v. White, 82 Perkins v. Williams, 492 Perrin v. Chidester, 879 Perrot v. Perrot, 957' Perrow v. Webster, 9'35 Perry v. Adams, 142 Perry v. Boyd, 756, 941, 942 Perry v. William, 145 Perry v. Williamson, 323 Pershing v. Canfield, 216, 674 Personneau v. Blakely, 609 Peterman v. Laws, 136 Peters v. Anderson, 554 Peters v. Bowman, 286, 497 Peters v. Delaplaine, 916 Peters v. Farnsworth, 159 Peters v. Grubbs, 366, 384, 408 Peters v. MKeon, 226, 229, 236, 238, 425 Peters VI. Meyers, 315, 318 Peterson v. Hultz, 884 Peterson v. McCulloch, 483 Petrie v. Folz, 402. 403, 436 Pettys v. Marsh, 640 Pflrrman v. Wattles, 138, 484 Phelps v. Decker, 366 Phelps v. Kellogg, 577 Phelps v. Phelps, 54 Phelps v. Sawyer, 392 Phenix v. Bijelich, 601, 679 Phillbrook V. Emswiler, 714 Phillips v. Coffee, 131 Phillips v. Cooper, 461 Phillips v. Day, 813, 819 Phillips v. Evans, 383 Phillips v. Herndon, 38, 153, 224 Phillips v. O'Neal, 680 Phillips v. People, 62 Ixx TABLE OF CASES [REFERENCES ARB TO PAGES] Phillips v. Reichert, 425, 431, 445 Phillips v. Ruble, 64 Phillips v. Scott, 730 Phillips v. Smith, 428, 436 Phillips v. Stanch, 53 Phillips v. Walsh, 70, 80 Phillipson v. Gibbon, 903 Phinixy v. Guernsey, 907 PhippV. Chi Ids, 788 Phipps v. Sappenfield, 157 Piatt v. Trimby, 641 Pickitt v. Loggon, 152 Piedmont Coal Co. v. Green, 660 Pierce *. Coryn, 380 Pierce v. Johnston, 281 Pierce v. Milwaukee R, Co., 478, 560, 586 Pierce v. Nicol, 879, 906 Pierce v. Pettit, 195 Pierse v. Bronnenburg, 303, 315 Pierson v. Armstrong, 53 Pierson v. Doe, 52 Pike v. Galvin, 281, 599 Pike v. Goodnow, 571 Piland v. Taylor, 61 Pilcher v. Prewitt, 705, 707 Pikher v. Smith, 681 Pillsbury v. Mitchell, 281, 336, 343, 347," 353 Pinckard v. Mortgage Co., 278, 282, 392 Pincke v. Curtis, 201 Pinkston v. Huie, 243, 293 Pineland Mt'ge Co. v. Trust Co., 293, 459 Pino v. Beckwith, 637, 677 Pintard v. Martin, 706 Pioneer Min. Co. v. Pierce, 627, 640 Piper v. Elwood, 145 Pipkin v. James, 637, 890, 998 Pitcher v. Livingston, 154, 289, 290, 450 Pitkin v. Leavitt, 391, 458. 466, 467, 469, 472 Pitman v. Connor, 304, 362 Planer v. Eq. Life Inn. Co., 542, 545 Platt v. r.ilehriHt, 488, 497, 694, 934 Platt v. Newman, 848 Platto I.iin.l C'o. v. H irf .bard. 639 Playter v. Cunningham, 380, 392 Plowman v. Shidler, 571 IMiuiiiniT v. Kennington, 866 Plummer v. Rigdon, 227 Plummer v. Russell. 51 Poheim v. Myers, 2O9 Point Street Iron Works v. Simmons, 155 Poke v. Kelly, 640. 724 Polak v. Matron. 370 Polk v. Stevenwn, 172 Polk v. Summer, 52, 855 Pollard v. Dwight, 272, 275 Pollard v. Rogers^ 202 Pollock v. Speidel, 562 Pollock v. Wilson, 765 Pomeroy v. Burnett, 482. 508, 509 Pomeroy v. Drury, 20, 38 Pomeroy v. Fullerton, 528 Pomeroy v. Partington, 453 Pool v. Ellis, 142. 143 Poole v. Hill, 209 Poole v. Shergold, 911 Pooler v, Sanunett, 807 Pope v. Garland, 22, 32 Pope v. Simpson, 138 Pope v. Thrall, 793, 8O9, 871 Pope v. Wray, 667 Poor v. Boyce, 118, 121 Porter v. Bradley, 320, 349 Porter v. Cook, 7O9 Porter v. Henderson, 586 Porter v. Hill, 584 Porter v, Xoyes, 35, 37, 322, 393, 855 Porter v. Scobie, 662 Porter v. Sullivan, 600 Porter v. Titcomb, 757 Portorfield v. Payne, 784 Port Jefferson Realty Co. v. Wood- hull, 816 Portman v. Mill, 903 Posey v. Keinsey, 874 Post'v. Bernheimer, 862 Post v. Campau, 320 Post v. Leet, 87, 125, 944 Post v. Weil, 853, 854 Potomac Lodge v. Miller, 807 Potter v. Kitchers, 298 Potter v. Parry, 774 Potter v. Taylor, 307 Potter v. Tuttle, 156 Potwin v. Blasher. 402, 455, 498 Poulet v. Hood, 158. Poulson V. Ellis, 210 Pounsett v. Fuller, 225 Powell v. Conant, 786 Powell v. Edmonds, 34 Powell v. Huey, 37 Powell v. Hunter, 671, 690 Powell v. Lyles, 362 Powell v. M'atyr, 905 Powell v. Morriasey, 624 Powell V. 'Munson, 322 Powell v. Powell, 801 Powt-11 v. Sx Wales R. Co., 915 Power v. Standixh. 5">0 Powers v. Brvant, 72 I'ovflM v. WilkiiiR, 516 Poyntell v. Spencer, 395, 306, 731, 724 Pratt v. Campltell, 529, 907 Pratt v. Eliy, 775, 808, 812 TABLE OF CASES Ixxi [REFERENCES ARE TO PAGES] Pratt v. Pratt, 586 Preble v. Baldwin, 303 Preiss v. Le Poidevin, 357, 416 Preissinger v. Sharp, 779 Prenti-ce v. Erskine, &27, 852 Prentice v. Townsend, 113, 645, 844 Presbrey v. Kline, 525, 879, 886, 887 Prescott v. Hayes, 63 Prescott v. Hobbes, 286 Prescott v. Trueman-, 273, 310, 339, 343, 348, 851, 916 Prescott v. \Yilliams, 324 Presser v. Hilde'brand, 539 Preston v. Breedlove, 512 Preston v. Fryer, 86, 88, 91 Preston v. Harrison, 144 Preston- v. Walker, 657, 670 Preston v. Whitcomb, 38 Preston v. Williams, 622, 624 Prestwood v. Carlton, 255, 278, 392 Prestwood v. McGowan, 282, 391, 394, 472 Prevost v. Gratz, 481, 696 Prewitt v. Graves, 787, 837 Prewitt v. Kenton, 462 Price v. Ayres, 931, 937 Price v. Blount, 511, 512 Price v. Boyd, 144 Price v. Browning, 191, 660 Price v. Hubbard, 486 Price v. Immel, 37, 548, 788 Price v. Johnson, 273 Price v. Loe, 642. Price v. Real Estate Assn., 121 Price v. Sti'ange, 77'4 Pridgen v. Long, 289, 2i90, 293 Prirmn v. Wise, 213, 892 Pring v. Swarm, 595 Pringle V. Spaulding, 223 Pringle v. Witton, 29.7, 386 Prior v. Loeb, 588 Pritchard v. Atkinson, 329 Pritchard v. Fox, 568 Pritchard v. Rebori, 330 Pritchard V. Smith, 402 Pritchard v. Steamboat Co., 707 Pritchett V. Redick, 387, 402, 411 Propper v. Colson, 8f54 Prosser v. Watts, 778, 805 Prothro v. Smith, 897 Prov. Life N. Co. v. Seidre, 281 Prov. Loan & Tr. Co. v. Mclntoah, 254, 745, 890 Prout v. Gibson, 660* Prout v. Roberts, 259, 746, 940 Pry v. Pry, 54 Pryor v. Buffalo, 206, 208, 852 Pryse v. McGuire, 257, 259i, 268, 483, 507 Piifo. Service Corp. v. Meadows Co., 521, 529 Puckett v. McDonald, 119, 640, 743 Pugh v. Brittain, 620 Pugh v. jChasseldine, 37, 153 Pugh v. Mayo, 570 Pu-mpelly v. Phelps, 228, 230, 242 Purcell v. Heeney, 485 Pursley v. Good, 216 Purvis v. Rayer, 20, 22, 773 Pusey v. .Desibourne, 957 Puterbaugh v. Puterbaugh, 20, 2-2i6, 242 Putnam v. Ritchie, 143 Putnam v. Westcott, 637 Putnam Inv. Co. v. King, 150 Pyle v. Gross, 374 Pyrke v. Waddingham, 771, 775, 777, 785, 786 o. Quarles v. Campbell, 119 Quick v. Taylor, 332. Quick v. Walker, 4LO, 426 Quimiby v. Lyon, 215 Quinn v. Lee, 387 Quivey v. -Baker, 562, 592, 594 R. Raben v. Risnikoff, 649 Radcliff v. Ship, 395, 469 Raddatz v* Christman, 789 Rader v. Neal, 200, 201, 203 Radford v. Willis, 777, 778 Raftery v. Easeley, 322,, 323 Ragan v. Gaither, 7'98 Ragel v. Dedinan, 52 Raines v. Callaway, 471 Raines v. Wa'ker, 562 Rainey v. Hines-, 342 Ralston v. Miller, 500, 934 Ram'bo V. Armstrong, 316 Ramirez v. Barton, '940, 942 RamsdeJi v. Hurat, 32 Ramsey v. Smith, 613 Ramis'our v. Shuler, 449 Ranokv. Wickwire, 752 Randall v. Albertis, 382 Randall V. Lower, 571 Randall v. Mallett, -339 Randolph V. iCinney, 281, 421 Randolph v. Meeks, 389, 391 Ranelagh V. Hayes, 559 Ranhofer V. Realty Co., 840 Rankin V. Maxwell,, 533 Ranney v. Smith, 613 Ranson v. Shuler, 9(20 Rash v. Jenne, 431 Rashall v. Ford, 266 Ixxii TABLE OF CASES LREFERKNCLS AUC TO PACKS] Ra.sst v. Morris, 217 Rathbun v. Rathbun, 566 Ratkewicz v. Kara, 32*), 497 Raudabaugh v. Hart, 21U Ravenel v. Ingnain, 281, 411, 414 Itawley v. Beanian, 72 Raxvlings v. Adanis, 226 Rawlins v. Timberlake, 483, 923, 932 Ray v. Detckon, 141 Ray v. Pease, 53 Ray v. Virgin, 117 Rayman v. Klare, 853 Raymes v. Clarkson, 46 Raymond v. Holden, 589 Raymond v. Raymond, 272, 303 Raymond v. Squire, 282 Raymond, etc., Co. v. Sharp, 882 Raynor v. Lyon, 834 Rea V. Minkler, 361, 300, 408, 474 Read v. Fogg, 51)4, 52, 706 BMW v. Kirk, 19 Reene v. Mcguilkin, 425, 472 BMM v. Smith, MO, 54 Reeves v. Dickey, 660, 661, 062, 882, 889 Reeves v. Downs, 671 Refeld v. Woolfolk, 537, 538, 708 Reffon Realty Co. v. Adams L. Co., 845 Regney v. Coles, 792, 826 Reguey v. Small, 135 Reid v. Johnson, 825, 867 Reid v. Sycks, 300, 307, 491 Reilly v. Burton, 141 Reilly v. Smith, 539 Reiner's Appeal, 1.16 Reis V. Epperson, 303, 312 Remillard v. Pre.*ott, #12, 616 Remington v. Hornby, 153 Remington v. Palmer, 490, 492 Remy v. -Olds, 215 Keiii'clc v. Renick, 934 Renner v. Marshall, 930 Rennie v. Gibson, 275, 387, 454, 460, 464 Renshaw v. Gans, 540, 5X>5, 724, 726 Reutler v. Raniaon, 856 Resser v. Carney, 572 Rcsnick v. Campbell, 894 Renter v. La we, 734 Revol v. Stroudback, 806, 845, 846 Rex v. Creel, 375, 391 Rex v. Holland, 052 Reydell v. Reydell, 800 Reynolds v. Borel, 796 Reynolds v. Cathen, 565 Reynolds v. Clark, 539i Reynolds v. deary, 853 Reynolds v. Harris, 131, 686 Reynolds v. Nelson, 628 Reynolds v. Smith, 892 Reynolds v. Strong, 767, 782, 881, 894 Reynolds v. Vance, 913 Reynolds v. White, 646, 771 Reynolds v. Wynne, 868 Rhea v. Allison, 763 Rlica v. Swain, 452 Rheel v. Hicks, 126 R bonds v. Selin, 109 Rhode v. Alley, 155, 514, 743, 72i Rhode v. Green, 467. 473 Hhoiles v. Caswell, 780 Rhodes v. Ihbctmm, 29 Rhodes v. Wilson, 640 It borer v. Hila,-670, 671 Rice v. Barrett, 842 Rice v. Burnett, 113, 117 Rice v. Cook, 464 Kk-e v. oddrd, 484, 600 Kice v. K- i-,,. 571 Rice v. 1'oynton, 619 TABLE OF CASES Ixxiii [REFERENCES ARE TO PAGES] Rice V. Silverton, 940 Rich v. Johnson, 451 Richards v. Bent, 281, 312, 337 Richards v. Homestead Co., 402, 406, 440 Richards v. Knight, 775, 777, 803, 841 Richards v. Mercer, 8*59 Richardson v. Boright, 256, 257, 261 Richardson v. Brewer, 321 Richardson v. Butler, 121 Richardson v. Dorr, 271, 339 Richardson V. Eytoir, 32 Richardson v. Gosser, 731, 717 Richardson v. Jones, 779' Richardson v. Lumber Corp., 563 Richardson v. McDougall, 128, 145 Richardson v. McKinson, 760, 7>62, 763 Richardson v. Tdbey, 326 Richardson v. Williams, 925 Richardson-Killet ;Co. v. Kline, 3-85 Richmond v. Ames, 323, 343, 348 Richmond v. Gray, 196, 918, 880, 888 Richmond v. Koenig, 859 Richmond v. Marston, 140 Richmond v. Robinson, 33'8 Richmond v. Voorhees, 64 Richstein v. Welch, 391, 462, 466 Ricker v. Pratt, 921, '928 Rickert v. Snyder, 297, 349, 381, 393, 458, 471 Ricketts v. Dickens, 356, 362, 391 Riddell v. Blake, 764 Riddle V. Bush, 132 Riddle v. Hill, 117 Riddle v. Hudson, 275, 2,97 Riddleberger v. Mintzer, 539 Rider v. Powell, 614 Ridgeley v. Howard, 61 Ridgway v. Gray, 9L5, 916 Rieman v. W agner, 807 Riez's Appeal, 539 Rife v. Glass Co., 353 Rife v. Lybarger, 859, 864, 915 Rigg v. Cook, 575 Riggins v. Post, 653 Riggs v. Pur sell, 83, 85, 201, 648, 771 Riley v. Bell, 251, 260 Riley v. Kepler, 115 Riley v. Million, 125 Rimer v. Dugan, 258, 267, 94Q Rinaldo v. Houseman, 650 Rineer v. Collins, 224, 226 Rindskopf v. Trust Co., 393 Rinehart v. Rinehart, 343 Ripley v. Kepler, 113, 115 Rippingall v. Loyd, 33 Ritter v. Henshaw, 127, 144 Ritter v. Phillips, 509 1 Roach v. Rutherford, 101, 1.96, 199, 657 Roake v. Kidd, 77-3 Roake v. 'Sullivan, 2,90, 294 496 Robards v. Cooper, 481 Robb v. Irwin, 99 Rofofo v. Montgomery, 38, 49, 665, 887 Robben v. Benson, 835, 837 Ro'bbins v. Battlehouse, 604 Robbins v. Mayer, 608 Roberts v. Bassett, 37, 38 Roberts v. Levy, 279, 286, 323, 332 Roberts v. Love joy, 533 Roberts v. McFadden, 17, 425, 430, 783 Roberts v. Stowers, 99, 132 Roberts v. Taliaferro, 608 Roberts v. WoLbright, 482, 695 Roberts v. Wyaft, 33, 170, 522, 546 Robertson v. Bradford, 119, 142 Robertson v. Gaines, 562 Ro'bertson v. Hogsheads, -659, 740 Robertson v. Lemon, 425, 4o3, 458 Robinson v. Bierce, 344 Robinson v. Brakewell, 234, 718 Robinson v. Douthit, 562, 5-69 Robinson v. Galbreath, 943 Robinson v. Hardman, 243 Robinson v. Heard, 227 Robinson v. M-audlin, 64 Robinson v. Murphy, 318 Robinson v. Page, '631 Robinson v. Redman, 97 Robinson v. Ryan, 141, 142 Robinson v. Steele, 785 Robinson v. Yetter, 216' Robison v. Robison, 699 Roche v. O'Brien, 193 Rcfchells v. Brookman, 63-7, Rockfeller v. Donelly, 301 Rocksell v. Allen, 12-7, 129 Rockwell v>. Wells, 499 Rodgers v. Olshoffsky, 756, 676, 725 Rodman v. Williams, 651 Roebuck v. Dupuy, 395, 402 Roehl v. Haumesser, 950 Roehl v. Pleasants, 116, 117 Rogers v. Abbott, 619 Rogers v. Borchard, 38 Rogers v. Clemmans, 120 Rogers v. Colt, 742 Rogers v. Daily, 441 Rogers) V. Golson, 436 Rogers v. Horn, 90, 514 Rogers v. Norton, 743 Rogers v. Olshoffsky, 756, 676, 725 Rogers- v. Place, 497, 929, Rogers v. Waterhouse, 776 Ixxiv TABLE OF CASES [ KKKERE.NCBS A&B TO PAOES] Rohr v. Kindt, 39, 233, 533, 546 Roland v. -Miller, 724, 720 Rolfes v. Russell, 268 Roller v. Effinger, 549, 678, 878 Rollins v. Henry, 124 Rollyson v. Bourn, 80, 882, 907 Rolph v. Crouch, 443 Romig v. Roniig, 37 Romilly v. James, 781, 782, 783 Rook v. Rook, 438 Rook v. Wright, 483 Rooney v. Koenig, 5.68 Roos v. Thigpen, 809, 875 Roots v. Dormer, 012 Roper Lumber Co. v. Hinton, 563 Rose V. Adler, 645, 648 Rose v. XJallauoS 861 Rose v. Neuman, 63 Rose v. Schaffner, 418 1: i. -i- ii 1.1 n v. Conovari, 252 Rosenberg v. Haggerty, 227 Rosenberg v. Jacubson, 652 Rosenberger v. Keller, 350, 936 Rosenblum V. Eisenberg, 819, 849 Rosenthal v. Griflin, 66 Ross v. Boards, 537, 916 Ross v. Davis, 362, 693 Ross v. Dysart, 371, 384 Ross v. Haynes, 649 Ross v. Perry, 374 Ross's Appeal, 72? Rowall v. Vaughan, 746, 706 Roszell v. Roszell, 014, 621 Rot an. v. Hays, 300 Rothwcll v. Schmidt, 850 Round^v. Baxter, 639, 667 Roussel v. Lux, 809 Rowland* v. Dowe, 224 Rowe v. Heath, 366, 459 Rowe v. School Board, 226 Roy v. Margin, 320 Royal v. Dennison, 49, 77, 21? Royce v. Burrell, 375 Royer v. Foster, 402, 404 Ruben* v. Hill, 370 Ruckcr v. Lowther, 153, 159 Rudd v. Savelli, 49, 153 RUM v. Ewen, 809 Ruff v. Gerhart, 805 Rufner v. McConnell, 299 Ruffner v. McLenan, 70 Rutrg v. Realty Co., 883 KH^IPM v. Barton, 686 Kundell v. Lakey, 317, 507 Runge V. Suhin, 68 Rurricle v. Johnson, 218 Rnnnella v. I'ruitt, 169, 22*7, 244, 873 Jlmiii. 1- v. \\ .),!!. 322 Kiinytuv v. MiThorenu, 277 Rupptrt v. Haake, 621, 622 Rush v. Truby, 45 Rushton v. Campbell, 211 Russ v. Alpaugh, 566, 377 Ku--- v. Perry, 322 Russ v. btetle, 408 Ku-s v. \\ingate, 61, 72 Russll v. Copland, 227 Russell v. Crowley, 2-13 R*ussell v. Handy, 205 Russell v. 11. i\\ \hur-j. t'Ti Russell v, Hudson, 136 Russell v. Shivery, 8*6 Russell v. Wales, 838 Rutherford v. Haven, 219 Rutherford v. -Montgomery, 378, 409 Rutherford v. Stamper, 110 Rutledge v. Lawrence, 226, 240, 531 Rutledge v. Smith, ($1, 681, 905, 90S Ryan 1 v. Dunlap, 529 Ryan v. Wilson, 53 Ryder v. Jenny, 154 Ryerson V. Chapman, 458, 460, 468. 469 Ryerson v. Willis, 485, 492, 497, 502 S. Sable v. Brockmeir, 2O Sable v. Maloney, 617 Saococcio v. Sprague, 457 Sachs v. Owinjrs, 213, 331, 644, 650. 853, 865, 884 Saokett v. Twining, 113 Safe Dep. & Tr. Co. v. Marburg, bOT, 849 Sage v. Jones, 336 Sage v. Ranney, 665, 666 Sage v. Land & Imp. Co., 172, 912 Saint v. Taylor, 924 St. Anthony'* K. W. P. Co. v. Merri- mnn, 613. 616 St. Clair v. Helhveg, 810, 885 St. Clair v. Williams, 379 St. Franc-is Leve* Dist. v. Lumber Co., 705 St. Louis v. Bissell, 347 St. Louis- Ref. Co. v. Langley. 500 St. John v. Palmer, 391, 394 St. Mary's Church v. Stockton, 840, 844, 862 Saldutti v. Klvnn. 538 Salisbury v. rfatcher, 890 Salle v. 'Light, 4PO Salmon v. Hoffman, 482 Salmon v. Vallejo, 280, 282 Salmon v. Webb, 644 Salmond v. Price, 140, 145 Saltonxtall v. Gordon, 252, 265 Saltonstall v. Riley, 97 Sampeyrac v. U. S., 187 TABLE OF CASES Ixxv [REFERENCES ARE TO PAGES] Sanborn v. Gunter, 947 Sanborn v. Xockin, 538 Sandeman v. McKinsie, 103 Sanderlin v. Willis, 223, 657 Sanders v. Boynton, 361 Sanders v. Brown, 314 Sanders v. Hamilton, 128 Sanders v. Lansing, 637 Sanders v. Wagner. 345, 439, 440 Sands v. Lynham, 141, 142 Sandum v. Johnson, 329 Sandwich Mfg. Co. v. Zellman, 307, 374, 568 Sanford v. Bulkier, 63 Sanford v. Justice, 267 Sanford v. Sanford, 596 Sanford v. Travers, 756, 951 Sanford v. Wheeler, 37 Sargent v. Gutterson, 304. 718 Sarlls v. Beckman, 398, 462, 467 Satterfield v. Spier, 533 Saulters V. Victory, 226, 230 Saunders v. Flanniken, 409, 414 Saunders v. Guille, 845 Saunders v. Hamilton, 462 Saunders v. Pate, 123 Savage v. Mason, 326 Savings Inst. v. Burdick, 614 Savings & Loan Assoc. v. Meeks, 625 Sawyer v. Hovey, 616 Sawyer v. Kendall, 55 Sawyer v. Sledge, 646, 684 Sawyer v. Vaughn, 296 Sawyer v. Wiswall, 496 Sawyers v. Cator, 372 Sayre v. Mohoney, 657, 671 Sayre v. Sheffield Land Co., 293 Seannell v. Am. Soda F. Co., 806, 857, 871 Scantlin v. Anderson, 446, 483 Scates v. Fohn, 597 Schaad v. Robinson, 308 Schaatz v. Keener, 615 Schaefer v. Causey, 142 Schaefer v. Blumenthal, 857 Schaefer v. Hilliker, 870 Schaeffer v. Bond, 137 Schaeffer v. Grutzmachen, 589 Schamberg v. Leslie, 743 8chechlinger v. Gault, 740 Scheible v. Slagle, 407 Schermerhorn v. Niblo, 769, 847 Schermerhorn v. Vanderheyden, 437 Scheu v. Lehning, 827, 913 Scheuermann v. De Latour, 828 Schiffer v. Dietz, 14, 249, 882, 889 Schimmelfenning v. Brunk, 311 Schley v. Baltimore, 96 Schlemmer v. Nelson. 637 Schmidt v. Reed, 888 Schnelle Lumber Co. v. Barlow, 273, 293 Schofield v. Iowa Homestead Co., 283, 286, 294. 412 Scholle v. Scholle, 829, 831 Schoonover v. Daugherty, 613 Schott v. McFarland, 702 Schreck v. Pierce, 20, 37, 522 Schroeder v. Witham, 782 Schroeppel v. Hopper, 756 Schug's Appeal, 82 Schulenberg v. Harriman, 399 Schuler v. Dooley, 653 Schultze v. Rose]! 807 Schumann v. Knoebel, 343, 508 Schurger v. Moorman, 329, 330 Schuylkill, etc., R. o. v. Schmoele, 380, 384, 398 Schwartz v. Black, 349 Schwartz v. Jones-, 276 Schwartz v. Woodruff, 801, 880 Schwinger v. Hickock, 127 Scoffins v. Grandstaff, 281, 410, 414, 592 Scott v. Battle, 682, 712, 763 Scott v. Beutel, 851 Scott v. Bilgerrv, 529 Scott v. Davis, 194 Scott v. Desire, 754, 883 Scott v. Gallagher, 61 Scott v. Hanson, 907 Scott V. Kirkendall, 394 Scott v. Merning, 289 Scott v. Xixon, 805 Scott, v. Scott, 357, 454, 470 Scott v. Simpson, 799, 807 Scott v. Slaughter, 707 Scott v. Tanner, 303, 3*32, 348, 361, 384, 408 Scott v. Thorp, 891, 903 Scott v. Twiss, 2.72 Scribner v. Holmes, 328 Scripture v. Morris, 851 Scriver v. Smith, 407, 408 Scudder v. Andrews, 502, 707 Scudder v. Watt, 767, 854 Seaburn v. Sutherland, 755 Seaman v. Hicks, 87, 92, 804, 863 Seaman v. Vawdrey, 32, 775, 776 Seamore v. Harlan, 760, 764 Searcy v. Kirkpatrick, 551 Sears V. Broady, 335, 471 Sears v. Stinson, 446 Seaton v. Barry, 724 Seaton v. Booth, 912 Seaton v. Mapp, 30, 32 Seaver v. Hull, 880 Sebring v. Mer?ereau, 822 Second Univ. Soc. v. Dugan, 843 Ixxvi TABLE OF CASES [BEFE&ENCES ABE TO PAGES] Second Univ. Soc. v. Hardy, 879 Security Bank v. Holmes, 374 Sedgwick v. Hargrave, 770 Soeley v. Howard, 220 Seibel v. Purchase, 637, '883 Seiberling v. Lewis, 213, 875 Seif v. Krebs. 845 Seitzinger v. Weaver, 714 Selden v. James, 904 Seldner V. McCrcery, 770, 846 Selden v. Wilhans/TU, 718 Seldon v. Jones -Co., 313, 340, 400 Selker v. Klein, 683 Seller v. Lingerman, 141 Semple v. Wharton, 374, 445 Scnning v. Bush, 846 Sessa v. Arthur, 491 Seton v. Slade, 196, 201, 879, 882,895 Settle v. Stephens, 741 Seventy-third St. Bldg. Co. v. Jencks, 343 Seward v. Willcock, 212 Sewell v. Wilkins, 211 Seyfried v. Knoblauch, 274, 275, 289, 294, 464 Seymour v. Delancy, 753, 794, 797, 812, 813, 889 Seymour v. Dennett, 667 Seymour v. Jaffe, 227 Seymour v Lewis, 334 Shackelford v. Hundly, 264, 267, 675, 940 Shackelford v. Miller, 104 Sliackleton v. Sutcliffe, 32, 851 Shacklett v. Ransom, 160 Shadbolt v. Bassett, 509 Shafer v. Wiseman, 473 Shaffer v. Bolander. 131, 134 Shatter v. Green, 300, 311, 312 Shaffer v. MeOacken, 134 Shaffner v. (Irut/.maohen, 589 Shuke'*pear vi Delaney, 133 Shalett v. Stoloff, 385 Shanahan v. Chandler, 807, 867 Shankle v. Ingram, 237, 387, 391 Shanks v. Whitney, 252 Shannon v. Childers, 391 Shannon v. Marselin, 492, 493, 923 Share v. Anderson. 714, 724 Sharland v. Leifa-hild, 20 Sharp v. Adcock, 774 Shatturk v. Cunningham, 527 Shattuok v. Lamb, 391 Shaw v. Bixbeo, 364 Shaw v. Loud, 47 Shaw v. Vincent, 910 Shaw v. Wilkins, 228, 235, 242 Shaw v. Wright, 84 Shaw Bros. v. Outhrie, 399 Shea v. Evans, 853 Sheard v. Wilburn, 236 Shearer v. Fowler, 711 Shearer v. Ranger, 322. 916 Shears v. Duserobury. 306, 464 Sheehy v. Miles, 788 Sheets v. Andrews. 209. 226, 229, 425 Sheets v. Joyner. 366, 442, 465 Sheffey v, Gardner, 336, 391, 472 Shelby v. Marshall. 659 Shelby v. Williams, 932 Sheldon v. Crane, 393 Sheldon v. Newton, 99 Sheldon- v. Stryker, 66 Shelley's Case, 840 Shelly v. Mikkleson, 550 Shelton v. Codman, 409 Shelton v. Johnston, 387 Shelton v. Livina, 34 Shelton- v. Peas, 309, 352, 403 Shephard v. Carriel, 66 Shephard v. Keatley, 31 Shephard v. Little, *436 Shephard v. Mclntire, 556 Shepherd v. Kahlc. 562 Shepman Mt'ge Co. v. Suasman, 219 Sherman v. Bean, 767 Sherman v. Kane, 565 Sherman v. Ranger, 393 Sherman v. Savery, 649 Sherman v. Williams, 381 Sherwin v. Shakespear, 168 Sherwood v. Johnson, 324 Sherwood v. Landon, 693 Sherwood v. Vandenburgh, 600 Shervood- v. Wilkins, 307 Shields v. Allen, 90, 647 Shields v. Bogliolo, 760 Shiffer v. Deitz, 200, 253 Shiflet v. Orange Humane Soc., 672 Shipp v. Wheless, 138, 647, 659, 871, 755, 921 Shirley v. Sliirley, 681 Shively v. Jones, 87 Shively v. Land Co., 213. 62* Shively v. Semi-Tropic Co., 892 Shol>er v. Dutton, 807, 812 Shober v. Robinson, 462 Shoemaker v. Johnson, 596 Shontz v. Brown, 158, 490, 714 Short v. Con lee, 66 Short v. Porter, 113, 142 Short v. Sears, 141 Shorthall v. Mitt-hell. 528 Shor thill v. Ferguson, 155 Shotwell v. Murray. 953 Shoub v. Dunlmr. H56 Shouse v. Donne. 30. 46, 210 Shrago v. Gulley, 341 TABLE OF CASES Ixxvii [REFERENCES ARE TO PAGES] Sliriver v. iShriver, 767, 776, 797, 807., 809, 813, 822, 911 Shrove v. Webb, 647 Shroyer v. Nickell, 142, 712 Shryer V. Morgan, 230 Shultz v. Moore, 61 Shultz v. Sanders, 131 Shurtz v. Thomas, 15, 539 Sibbald v. Lowrie, 196 Sibley v. Bullis, 148 Sibley v. Spring, 37 Sidders v. Riley, 304 Sidebotham, Ex parte, 194-196 Sidwell v Birney, 65 Sievert v. Underwood, 406 Sikes v. Wild, 226, 228, 238 Silbar v. Ryder, 612, 615 Silfer v. Daenzer, 873 Silliman v. Gillespie, 534 Silverman v. Loomis, 423 Simanovich v. Wood, 303, 313 Simis v. McElroy, 805, 812, 813, 840 Simmons v. Haseltine, 781, 784 Simmons v. North, 622 Simmons v. Zimmerman, 793 Simonds v. Diamond Match Co., 282, 321, 335, 393, 410, 475 Simons v. Patchett, 225, 243 Simon v. Vandeveer, 801 Simpson v. Atkinson, 525 Simpson v. Belvin, 425, 453, 467 Simpson v. Greeley, 592 Simpson v. Hart, *922 Simpson v. Hawkins, 483, 686, 787, 916, 923, 924, 926, 927 Simpson v. Klipstein, 192, 852 Sims v. Boaz, 215 Sims v. Gray, 142 Sims v. Lewis', 529 Sinclair v. Jackson, 569 Sine v. Fox, 363 Singer v. Investment Co., 847 Singletary v. Carter, 109 Singleton v. Close, 845 Singleton v. Cuttino, 792 Sisk v. Caswell, 333 Sisk v. Woodruff, 402, 465, 468 Sisters, etc., v. Benzinger, 832 Sivoly v. Scott, 670 Sizemore v. Pinkston, 676 Skaaraas v. Finnegan, 228 Skally v. Shute, 382 Skerrett v. Presbyterian Society, 607 Skilleen v. May, *750 Skinner v. Fletcher, 67 Skinner v. Moore, 107 Skinner v. Starner, 306 Skull v. Clenister, 22 Slack v. McLagan, 506 Slack v. Thompson, 153 Slade v. Crum, 835 Slater v. Rawson, 272, 280, 421 Slaughter v. Tindle, 529 Slayback v. Jones, 382 Sloane v. \\ells, 545 Slocum v. Bray, 50 Sloper v. Fish, 834 Slowthower v. Gordon, 92 Small v. Atwood, 263, 638 Small v. Jones, 567 Small v. Proctor, 600 Small v. Reeves, 292, 391, 483, 498, 508 Smeich v. Herbst, 676. 683 Smiddy v. Grafton, 22 Smiley v. Fries, 566, 600 Smith v. Aibington Sav. Bk., 302, 313 Smith v. Acker, 508 Smith v. Ackerman, 482, 498, 510 Smith v. Arnold, 114 ~ Smith v. Babcock, 202, 743 Smith v. Bangharn, 227 Smith v. Bricker, 738 Smith v. Brittain, 89 Smith v. Brittenham, 755 Smith v. Browning, 637, 883, 916 Smith v. Busby, 219', 756 Smith v. Cannell, 322, 571 Smith v. Cansler, 888 Smith v. Carney, 343 Smith v. Carroll, 595 Smith v. Clianey, 707, 715 Smith v. Chapman, 611 Smith v. Compton, 439, 453, 469 Smith v. Cornell, 916 Smith v. Davis, 320, 349 Smith v. Death, 797 Smith v. De Rusey, 592 Smith v. Detroit Min. Co., 199 Smith v. Dixon, 390 Smith v. Ellis, 32 Smith v. Fitting, 498 Smith v. Fly, 364, 952 Smith v. Haynes, 43, 654 Smith v. Henry, 209 Smith v. Hogue, 368 Smith v. Hudson, 482, 690 Smith v. Hughes, 278, 328, 330, 486, 691 Smith v. Hunt, 63 Smith v. Hunter, 754, 831 Smith v. Ingram, 379, 410, 573, 574 Smith v. Jefts, 281, 330, 341 Smith v. Johnson, 752 Smith v. Jones, 484 Smith v. Keeley, 400, 457 Smith v. Kelly, 131, 132, 520, 528 Smith v. Kimball, 840 Smith v. Lamb, 634, 657 Ixxviii TABLE OF CASES [REFERENCES ARE TO PAGES] Smith v. Lewis, 212, 313, 057 Smith v. Lloyd, 290, 307, 311 Smith v. Lumber Co., 393, 394, 397 Smith V. Ma. -kin, 944 Smith v. McCluskey, 643 Smith v. McCool, 914 Smith v. McMahon, 21, 874 Smith v. Montes, 565 Smith v. Moore, 380 Smith v. Moreman, 844 Smith v. Munday, 133 Smith v. Newton, 482, 694 Smith v. Nolan, 415, 513 Smith v. Painter, 122 Smith v. Parsons, 456, 498, 552 Smith v. Perry, 415 Smith v. Pettus, 553, 640 Smith v. Richards, 264, 335 Smith v. Riordan, 809 Smith v. Robertson, 212, 222, 741, 750, 751, 680, 944 Smith v. Rogers, 213 Smith v. Schiele, 24 Smith v. Scrifoner, 391 Smith v. Shepard, 389 Smith v. Sillyman, 729, 727 Smith v. Smith, 211, 309 Smith v. Sprague, 325, 456 Smith v. Strong, 290, 431, 437 Smith v. Taylor, 25, 26, 168, 789 Smith v. Turner, 834 Smith v. Wahl, 360 Smith v. Ward, 361, 446, 934, 937 Smith v. White, 323, 349, 351, 446, 934 Smith v. Williams, 562 Smith v. Winn, 84, 89, 954 Smith v. Wood, 624 Smith's Appeal, 553 Sm it her v. Steiner, 914 Smithson v. Inman, 763 Smoot v. Coffin, 482, 697 Smyth v. Boroff, 734 Smyth v. Merc. Tr. Co., 249 Smidon v. Salmon, 410, 421, 422 Sucljrrove v. Snelgrove, 186 Snell v. Mitchell, 520 finevilly v. Egle, 295, 668 Snevely v. Lowe, 99 Snider v. Cole-man, 142 Snider v. Van IVtten. 37<\ 394 Snow v. Monk, 529, 868, 870 Sno\vd>n v. Derrick. 204, 669 Spoor v. Tilson, 740 Sprague v. Baker, 280, 337, 402, 407 SpraM v. .Fcirr.'y, 31 . v. Hodman, ">">."> Spring \. IM-.. 4.'5!. 4.">3 Spring v. Sanford. H47 spring v. Tongue. 313 Springle v. Shield?, 542 TABLE OF CASES Ixxix [REFERENCES ARE TO PAGES] Springs v. Harven, 142, 611 Sprowl v. Blankenibaker, 847 Spruill v. Davenport, 245 Spurr v. Andrews, 319 Spurr v. Benedict, 920, 950 Staats v. Ten Eyck, 229, 289, 290, 435, 450 Stack v. Hickey, 800 Stackpole v. Robbing, 141 Stacy v. Kemp, 496 Staed v. Bossier, 410, 424, 451 Stanley v. Irvine, 444, 726 Staley v. Ivory, 678 Stambaugh v. Smith, 309 Stanard v. Eldridge, 277, 313, 339 Standifer v. Davis, 210, 220 Stanley v. Goodrich, 299 Stansbury v. Taggart, 492 Stanton v. Button, 67, 74 Stanton v. Tattersall, 22 Stanstmry v. Igelhart, 99, 101 Staples v. Dean, 437 Staples v. Flint, 471 Stapylton v. Scott, 523, 767 Star v. Bennett, 266 Stark v. Hill, 501, 744 Stark v. Homuth, 364 Stark v. Olney, 425, 437, 456, 460 Stark v. Sigelow, 48 Starke v. Henderson, 660 Starkey v. Neese, 482, 517, 705 Starnes v. Allison, 840 State v. Cent, Poca, Coal Co., 590 State v. Crutchfield, 162 State v. Gaillard, 8>6 State v. Holloway, 252 State v. Kemmerer, 589 1 State v. Paup, 955 State v. Salyers, 131 Stead v. Baker, 934 Steadman v. Handy, 538 Stearns v. Hendersass, 565 Stearns v. Jewel, 276, 380 Stebbins v. Wolf, 425, 431, 451 Steele v. Adams, 437 Steele v. Kinkle, 207, 257 Steele v. Mitchell, 1'53 Stehley v. Irvin, 444, 726 Steiner v. Baughman, 364, 393, 395, 560 Steiner v. Presby. Ch., 904 Steiner v. Zwickey, 4& Steinhardt v. Baker, 829 Steinhauer v. Witman, 730, 731, 724 Stelzer v. La Rose, 49, 504 Step v. Alkire, 533 Stephen's Appeal, 726, 851 Stephens v. Black, 550 .Stephens v. Boyd, 563 Stephens v. Ells, 81 Stephens v. Evans, 482 Stephenson v. Harrison, 239 Sterling v. Peet, 160, 162, 289, 396, 433 Stermberg v. -McGovern, 540 S'tevansi v. Evans, 292 Stevens v. Austin, 781 Stevens v. Banta, 828 Stevens v. Guppy, 196 Stevens v. Hampton, 61 Stevens v. Jack, 468 Stevens v. Van Ness, 637 Steverson v. Agee Co., 571 Stevenson v. Buxton, 529 Stevenson v. Fox, 869 Stevenson v. Loehr, 384, 385 Stevenson v. Mathers, 554 Stevenson v. Polk, 819, 826, 879, 885 Stewart v. Anderson, 571, 591 Stewart v. Conyngham, 805 Stewart v. Devries, 822 Stewart v. Drake, 335, 345, 346, 389, 404, 440 Stewart v. Gillette, 540 Stewart v. Insall, 744 Stewart v. Kreuzer, 655, 807 Stewart v. Noble, 245 Stewart v. Stewart, 946 Stewart v. West, 151, 282, 356, 385, 395, 475 Stewart v. Williams, 600 Stiger v. Bacon, 928, 930 Stiles v. Winder, 620 Stinchfield v. Little, 160 Stingle v. Hawkins, 217 Stinson v. Sumner, 33&, 584 Stipe v. Stipe, 397, 404 Stitzel v. Copp, 886 Stobert v. Smith, 825, 843 Stock v. Aylward, 557 Stockett v. Goodman, 56 Stoekham v. Cheney, 675 Stockton v. Cook, 204, 207, 924 Stockton v. George 209 Stockton v. Union Oil Co., 910 StockAvell v. Couillard, 367 Stoekwell v. Mel'bern, 681 Stoddard v. Smith, 640, 907, 911 Steepler v. Silberberg, 300, 595 Stokely v. Trout, 296 Stokea v. Acklen, 900, 930 Stokes V. Johnson, 914 Stokes v. Jones, 573 Stone v. Buckner, 206, 485, 492, 521 Stone v. Darnell, 141 Stone V. Gover, 670, 674 Stone v. Hale, 609, 617 Stone V. Hooker, 395 Stone v. Lord, 220, 520 Stone v. Sprague, 215 Ixxx TABLE OF CASES [BEFEBE.NCES AliE TO PAGES] Stone v. Young, 11 Stoney v. -Shultz, 129, 135 Storrs v. Barker, 954 Story v. Conger, 38 Story v. Kemp, 705 Stout v. Gully, 94 Stout v. Jackson, 229, 355, 356, 425 Stow v. Stevens, 38 Stowell v. Bennett, 286 Stow ell v. Haslett, 611 Stowell v. Robinson, 872 Strain v. Huff, 483 Strange v. Watson, 526 Stratton v. Kennard, 705 Strauss v. Benheim, 780, 845 Strauss v. Yeager, 41, 218 Strawn v. Strawn, 589 Strayn v. 'Stone, 616 Streaper v. Fisher, 415 Streeper v. Alwln, 349 Streeter v. Henley, 482 Stricter v. Illsley, 825 Strickland v. Draughanr, 56 Strickland v. Duffle, 867 Strike's Case, 763 Strodes v. Patton, 87 Strohauer v. Voltz, 305 Strong v. Downing, 255, 483, 923 Strong v. Lord, 252. 676 Strong v. Strong, 249 Strong v. -Smith, 273 Strong v. Waddell, 499, 549, 601, 657, 706 Strothers v. Leigh, 738 Stroud v. Kasey, 131 Strouse v. Drenniin. 105 ' Stryker v. Vanderbilt, 77 Stuart v. Dutton, 73 Stuart v. Nelson, 386 Stiibhs v. Page. 289 Stuhr v. Butterfteld, 324, 334 Sturgis v. Slocum, 284, 288 Sturtevant v. Jaques, 818, 840 Stutt v. Bldg. Asson., 313 Stutts v. Browne, 141 Stuyvesant v. Weil. 824 Styen v. Robbin*. d25 Style* v. Blnine. 529 Sugg v. Stone. 531 Sulk v. Tumulty, 808 Sullivan v. Hill". 426, 446 Stimmprall v. Graham, 670 Siimiwrfield v. White. 587, 589 Summers v. Hively, 807 Summy v. Rnnr*ey, 770, 867 Sunnier v. Barnard, 571 Sumner v. Rhodes, 61 1 Simmer v. Se**ion*s 110. Ill Sumner v. William*, 158, 160, 289, 451, 454 Sumter v. Welch. 386, 514 Sumlerland v. Bell, 4S3 Supervisors v. Bed. High Svhool, 854 Surget v. Arighi, 382 Susquehanna Coal Co. v. Quick, 410, 423 Sutherland v. DeLeon, 99 Suthoff v. Marusca, 213 Sutton v. Baillie, 349, 377 Sutton v. Davis, 244, 839 Sutton v. Page, 226, 227 Sutton v. Schonwald, 95, 110 Sutton v. Sutton, 39, 136, 931, 946 Suydam v. Jones, 303, 411, 413, 416, 422, 438 SVoly v. Scott, 670 Swafford v. Whipple, 294, 295, 425, 437 Swaggerty v. Smith, 144, 145 Swain v. Burnett, 533, 790 Swain v. Burnley, 934 Swain v. Fidelity Ins. Co., 827, 826 Swaisland v. Dearsley, 32, 34 Swan v. Drury, 20, 35, 37, 203, 216 Swanson v. Spencer, 316 Swanston v. Clark, 649 Swartz v. Ballou, 458 Swasey v. Brooks, 281, 409, 469 Swayne v. Lyon, 824 Sweom v. Steele, 224, 22, 238, 245 Sweet v. Brown, 367, 596 Sweetser v. Lowell, 592 Sweetzer v. Hummel, 218, 221 Swenk v. Stout, 465, 471 Swepson v. Johnson, 522, 540 Swett v. Patrick, 433, 454, 458, 460 Swift v. Doe, 563 Swiggart v. Harber. 92, 100 Swihart v. Cline, 037 Swindell v. Richey. 653 Sykeg v. Bobbins 545 Syme v. Johnston, 879 Syme v. Trice, 111 Symms v. Jame*, 32 T. Tahb v. Bin ford. 355, 376 Ta-lHT v. Shattiick. 611) Taft v. Kennel, 38, 675, 676, 679, 681. 691 Taggart v. Graham, 791 Taggart v. Risley, 562. 597 Taggart v. Stanbury, 159 Tague v. MoColn, 627 Taintor v. Hotiuningwav. 41 Tallx-rt v. Grist, 2S4. 26. 462 Talbot V. lied ford. 386, 469. 472 Talbot v. ]{<>mn>r. 63 Tallnit v. Land Co., 637 Tallx>t v. Sobree, 760 TABLE OF CASES [REFERENCES ARE TO PAGES] Talifer Co. v. Falk, 646, 797 Tallmadge v. Wallis, 361, 485, 489, 502, 503, 756 Tallman v. Green, 257, 558, 559 Tandy v. Waesch, 8o2, 853 Tankersly v. Graham, 481, 670 Tanner v. Levingston, 293, 448 Tanzer v. Bankers-' Corpn., 410, 873 Tapley v. Ldbaume, 289 Tapp v. Beverley, 43 Tapp v. Nock, 1G4, 169, 876, 888 Tarbell v. Tarbell, 457 Tarpley v. Poage, oil Tarlton v. Daily, 514 Tarwater v. Davis, 36 Tate v. Anderson, 144 Taub v. Spector, 807 Taul v. Bradford, 518, 654 Tausk v. Siry, 794, 835 Tavener v. Barrett, 153, 158 Taylor v. Allen, 426, 438, 459, 462 Taylor v. Barnes, 243 Taylor v. Chamberlain, 824 Taylor v. Davis, 160 Taylor v. Debar, 477, 560 Taylor v. Fleet, 190 Taylor v. Fulmore, 514 Taylor v. Gilman, 304, 325 Taylor v. Harrison, 148 Taylor v. Harvey, 317 Taylor v. Heitz, 320, 341, 350 Taylor v. Holter, 458 Taylor v. Johnston, 219, 877 Taylor v. Kelly, 531 Taylor v. Leith, 263 Taylor v. Lane, 336, 414 Taylor v. Longworth, 220, 86 Taylor v. Lyon, 483, 692, 923, 927 Taylor v. Martindale, 32, 788 Taylor v. Porter, 49, 235, 237, 759 Taylor v. Preston, 41 Taylor v. Rowland, 529, 530 Taylor v. Shuffold, 590 Taylor v. Stewart, 474 Taylor v. Wainman, 592 Taylor v. Wallace, 436 Taylor v. Williams, 26, 169, 200, 782, 789, 790, 792 Teague v. Wade, 889 Teague v. Whaley, 323, 332, 455, 465 Teal v. Langdale, 212 Teal v. Woodworth, 588 Tederall v. Bouknight, 107 Tefft v. Munson, 577 Templeton v. Falls Lumber Co., 119 Templeton v. Jaickson, 734 Templeton v. Kramer, 485 Ten Broeck v. Livingston, 907 Tendring v. London, 520 Tennell v. Dewitt, 750 Tennell v. Roberts, 759 , Tenney v. East Warren, 64 Tennison v. Palmer, 563 Tepper v. Niemier, 386 Terrell v. Farrar, 912 Terrell v. Herron, 709 Terrett v. Imp. Co., 301 .Territt v. Taylor, 574 Terry v. Cutter, 133, 134 Terry v. Drabenstadt, 455, 459, 460, 461 Terry v. George, 218 Terry v. Westing, 864 Terte v. Maynard, 545 Tevis v. Richardson, 808, 812, 823 Tewksbury v. Howard, 806 Texas Lumber Mfg. Co. v. Branch, 187 Texas Pac. R. Co. v. El Paso R. Co., 319 Tex. Ry. Co. v. Gentry, 486 Thacker v. Booth, 805 Thackeray, Re, 7i77 Thackeray v. Wood, 152 Tharin v. Ficklin, 20 Thayer v. Clemen.ce,, 338, 434 Thayer v. Palmer, 2,99, 358 Thayer v. Sheriff, 123 Thayer v. Torrey, 150 Thayer v. Wendell, 160 Thayer v. White, 36, <64 Thielen v. Richardson, 567 Thomas v. Bland, 414 Thomas v. Bartow, 23 Thomas v. Coultas, 24&, 267 Thomas v. Davidson, 82, 85, 902 Thomas v. Dering, 542 Thomas v. Dockins, 619 Thomas v. Ellison, 343 Thomas v. Fleming, 792 Thomas v. Glazener, 122, 127 Thomas v. Harris, 726, 727, 728 Thomas v. Larz, 801 Thomas v. Meier, 68 Thomas v. Perry, 276 Thomas v. Phillips, 920 Thomas v. Powell, 705 Thomas v. St. Paul's Ch., 538 Thomas v. Schee, 164 Thomas v. Seaman, 219, 894 Thomas v. Stickle, 395, 400, 402, 406, 598 Thomas v. Walden, 210 Thomas v. West &c. Inc., 380 Thomas V. Wyatt, 47 Thos. J. Baird Co. v. Harris, 49, 874 Thompson v. Adams, 551 Thompson v. Avery, 791 Thompson v. Brazile, 471 Thompson v. Christian, 481. 714 Thompson v. Conran, 342, 352 Lxxxii TABLE OF CASES [REFERENCES ARE TO PAGES] Thompson v. Dulles, 196. 671, 845, 898 Thompson v. Doe, 103 Thompson v. Gould, 648 Thompson v. Guthrie, 226, 236, 425, 431 Thompson v. Hart, 103 Thompson v. Hawley, 35, 37, 39 Thompson v. Hill, 363 Thompson v. Jackson, 952 Thompson v. KiK-rease, 238 Thompson v. Lee, 760 Thompson v. -Marshall, 606, 617 Thompson v. McCord, 514 Thompson v. Merrill, 586 Thompson v. Miles, 637 Thompson v. Milliken, 805 Thompson v. 'Morrow, 450 Thompson v. Munger, 114, 115 Thompson v. koble, 650 Thompson v. Richmond, 282, 335, 410, 41.-, Thompson v. Robinson, 168 Thompson v. Sanders, 415 Thompson v. Sthenectadv, &c., Co., 369 Thompson v. Shattiu-k, 413 Thompson v. Shepherd, 481 Thompson v. -Shoemaker, 37, 500 Thompson v. Thompson, 46, 305 Thompson v. Tolmie, 102, 105 Thorn v. Mayer, 839 Thome v. Clark, 457 Thorndike v. Norris, 562 Thornton v. Mulquinne, 107 Thorp v. Keokuk Coal Co., 509, 705 'ihrasher v. Pinkard, 866 Thredgill v. Pintard. 441, 550, 551 Threlkeld v. Campbell, 82, 84, 145 Threlkeld v. Fitrhugh, 229, 425, 426, 428, 451 Thrift v. Fritz, 132 Thrower v. Logan, 896 Thurgood v. Spring, 510 Thurman v. Cameron, 65, 66 Thurmond v. Browiwon. 161, 376 Thweatt v. MrLeod, 718 Tibbett v. Aver*. 502, 503 Tibbotts V. Lesson, 312 Tiernan v. Roland. 860, 851, 891 Tilghman Lumber Co. v. MatheBon, 376 Tilley v. Bridges, 113 Tillcy v. Land Co., 533 Tilley v. Thomas, RH.*V. 885 Tillitwn v. Boyd, 2KO Tillotfon v. OeVnor, 779, 780. 901 Tillotnon V. Orape*. 489. 500. 734 Tillotson v. Kwinedy. 592. 593 Tillotson v. Pritchard, 421, 431 Tilton v. Emery, 565 Timms v. Shannon, 484, 496, 662, 672 Tindall v. Cobham, 670, 755 Tindall v. Conover, 35, 36, 37 Tinney v. Ashley, 35. 221 Tinney v. Watson, 125 Tinibey v. Kinsey, 242 Tison v. Smith, 873, 891 Title Doc. Co. v. Kerrigan, 21 Tobin v. Bell, 35 Tobin v. Larkin, 533 Tod v. Gallagher, 555 Todd v. Dowd, 87 Todd v. lloggart, 643 Todd v. Mclaughlin, 759 Todd v. Union Dime Sav. Bank, 769, 836 Tollensen v. Gunderson, 737 Tolliver v. Ry. Co., 565 Tolosi v. Lese, 846 Tompkins v. Hyatt, 196, 199, 671, 756, 895 Tomlin v. McChord, 834 Tomlinson v. Savage, 806, 913 Tone v. Brace, 921 Toney v. Dewey, 307 Toney v. Toney, 638 Tong v. Matthews, 425 Toomey v. Read, 155 Toole v. Toole, 81, 831, 896 Tooley v. Chase, 607 Tooley v. Kane, 92 Toops v. Snyder, 615 Topliff v. Atl. L, & Imp. Co., 857 Topp v. White, 260, 533, 637, 794 Torranoe v. Bolton, 29, 32 Tourville v. Xaish, 492,, 510 Towles v. Turner, 130 Town v. Needham, 419 Towns v. Barrett, 634 Townsend v. Hubbard, 58 Townwnd v. Lewis, 879 1 Townsend v. Morris, 356, 376, 471 Townsend v. Smith, 144 Townsend v. Tufts, 211 Townsend v. Ward, 305 Townsend v. Weld. 303, 311. 438 Townahend v. Goodfellow, 843, 891 Tra<-y v. Gunn, 238 Trapier v. Waldo, 81. 95 Trask v. Vinson, 227. 500. 523 Traver v. Hulstead, 38, 215 TrAt v. Orono. 743 Tremaine v. Lining, 153 Trcptow v. Buc, 122 Trevino v. Cantu, 547, 629, 940 Trevivan v. Lawrence, 577 Trire v. Kayton. 328 Trinity Church v. Higgins. 301 Trigg v. Reade, 951, 952 TABLE OF CASES Ixxxiii [BEFEBENCES ABE TO PAGES] Trimmer v. Gormen, 815, 916 Tripp v. Sieler, 201, 769 Troost v. Davis, 555 Tropico Land Co. v. Larrtbourne, 558 Troutman v. Gowing, 538 Troxell v. Johnson, 385 Troxell v. Stevens, 385, 414, 573, 592 Trudeau v. Fischer, 581 True v. N. Pacific R. Co., 877 Trull v. Eastman, 572, 593, 599 Trulock v. Peeples, 65 Trumbo v. Lockridge, 483, 933 Trust Co. v. Muse, 84 Trustees v. Lynch, 648, 855 Trustees 1ST. Y. Pub. School, in re, 816 Truster v. Snelson, 297 Trutt v. Spott, 358 Tryce v. Dittus, 886 Tubbs v. Gatewood, 70 Tucker v. Clarke, 582 Tucker v. Gordon, 130, 743 Tucker v. MtArthur, 336, 409 Tucker v. Thraves, 222, 526 Tucker v. Woods, 38, S54 Tudor v. Taylor, 144 Tufts v. Adams, 280, 312, 338, 347, 389, 434 Tuggle v. Hamilton, 398 Tuite v. 'Miller, 277, 393, 558 Tukey v. Foster, 404 Tull v. Royston, 315 Tully v. Davis, 66 Turco v. Trimboli, 844 Turk v. Skiles, 93, 131 Turnbull v. Gadsden, 746 Turner v. Beaurain, 32 Turner v. Goodrich, 402, 403, 406, 439, 458 Turner v. Harvey, 256 Turner v. Howefl, 203 Turner v. McDonald, 796, 810 Turner v. Miller, 459 Turner v. Nightingale, 636 Turner v. Reynolds, 645, 852 Turner v. State Bank, 329 Turner v. Turner, 955 Turn Verein v. Kionka, 168 Turney v. Hemminway, 653 Tuskegee Land Co. v. Realty Co., 310, 325, 337, 349, 351 Tustin v. Faught, 48 Twambly v. Henley, 272 Tweddell v. Tweddell, 305 Tweed v. Mills, 22, 31, 40 Twohig v. Brown, 206, 512, 655 Tybee v. Webb, 705 Tyler v. Young, 36, 500 Tymason v. Bates, 364 Tyree v. Williams, 836 Tyson v. Belcher, 111 Tyson v. Brown, 119 Tyson v. Eyrick, 226, 237 Tyson, v. Passmore, 523 U. Uhl v. Laughran, 828 Uhl v. Ohio R. R. Co., 477 Uhler v. Hutehinson, 62 Underwood v. Birchard, 380 Underwood v. Parker, 678 Underwood v. West, 755 Ungrich v. Shuff, 681, 869 Union Bag Corp'n v. Bischoff, 874 Union Mut. Life Ins. Co. v. Crowl, 76 Union Nat. Bank v. Pinner, 928, 930 Union Pac. R. Co. v. Barnes, 705, 940 Union Safe Dep. Co. v. Chisholm, 163, 165 Union Stave Co. v. Smith, 670 United States v. Bank of Georgia, 705 United States v. Cal., etc., Land Co., 56 United States v. Duncan, 126 University v. Joslyn, 381, 391 University v. Lassiter, 110 Updike v. Abel. 265 Upham v. Hamil, 123, 125 Upperton v. Nicholson, 168 Upshaw v. Debow, 261 Upson v. Horn, 96, 108 Upton v. M'aurice, 818, 873 Upton v. Smith, 794 Upton v. Trebilcock, 266 Urmston v. Pate, 705, 946 Utica, etc., R. Co. v. Gates, 347 V. Vail v. Xelson, 39, 200 Valle v. Clemens, 596 Valle v. Fleming, 140, 142, 556 Vanada v. Hopkins, 153, 159 Van Amringe v. Morton, 188 Van Benthuysen v. Grasper, 664 Vance v. Fore, 54 Vance v. House, 687, 695, 702, 806, 923, 925 Vame v. Schuyler, 60, 63 Vance v. Shroyer, 678 Vancouver v. Bliss, 195 Vandever v. Baker, 33, 92, 109 Vandever v. Reynolds, 665 Vanderkarr v. Vanderkarr, 385 Van Epps: v. Harrison, 756 Van Epps v. Schenectady, 38, 149. 154, 159, 911 Van Gundy v. Shewey, 79,5, 810, 819, 847 Van Hoesen v. Benham. 276 Van Home v. Grain, 412 Lxxxiv TABLE OF CASES [REFERENCES ARE TO PAGES] Vanity Fair Co. v. Hayes, 639 Van Horn v. Stuyvesant, 809, 870 Van Keuren v. .Siedler, 528 Van Lew v. Parr, 514, 739, 690 Vann v. Denson, 563 Van Ness v. Bank, 61 Van Ness v. Roval Phosphate Co., 330, 371 Van Nest v. Kellum, 292 Van Xostrand v. Wright, 275 Vannoy v. Martin, 124 Van Rensselaer v. Kearney, 320, 477, 597 Van Rensselaer v. Van Rensselaer, 394 Van Riper v. Wickersham, 767, 880 Van Riper v. Williams, 923 Van Riswick v. Wallach, 734 Van iSchaick v. Lese, 803, 854 Vanscoyoc v. Keniler, 144, 145 Van W'aggoner v. McEwen, 492, 923 Van \\Vgner v. Van Nostrand, 275, 332, 359 Van Winkle v. Earl, 306 Van Wyck v. Richnian, 825 Vanlanian v. Lawson, 24, 38, 153 Vark-k v. Briggs, 418 Varick v. Edwards, 594 Vary v. Smith, 593 Vattier v. Hinds, 186 Vattier v. Lytle, 122. 145 Vaughn v. Bunk. 227 Vaughn v. Butterfield, 855 Vaughn v. Smith. 264, 745 Vaughn v. Stuzaker, 277 Vaughn v. Wells, 923 Veeder v. Fonda. 5)2 Veit v. -MeCauslan. 275, 297 Verdin v. Slot-urn, 132 Vermeule v. Hover, 570 Vernol v. Vernol. 202, 718 Vest v. Weir, 122, 656 Vett v. Sohwob. 837 Veve v. Sanchez, 563 Vu-k v. Percy, 484. 933 Viele v. R Co., 197 Vielle v. Osgood, 46 Villoni v. Feintttein, 682 Vim-ent v. Hick**, 398 Vivian v. Stevens, 483 Vining v. Leeman, 482, 755, 678 Vognild v. Voltz, 795. 797 Volz v. Steiner. 826. 870 Voorhees v. Bank, 92, 94, 98 Voorheea v. I)e Meyer, 535. 543, 799, 879, 880 Voorhis v. Bank, 94 Voorhis v. Foryth, 318, 353 Voxe v. Brad*treet, 54 Vought v. Willinm^. 785, 788, 815 Vreeland v. Blauvelt, 575, 770, 7?5, 842 Vrooman v. Phelps, 742 W. Wachendorf v. Lancaster, 437 Wacht v. Hart, 653 Wacker v. Straul), 45.1, 452, 483 Waddell v. \\ uddell, 842 Waddell v. \\olfe, 30, 31 Wade v. Barlow, 440, 563 Wade v. Comstoek, 470 Wade v. Greenwood, 806 Wade v. Killough, 220, 670 Wade v. Lindsay, 573 Wade v. Percy, 929 Wade v. Thufman, 740, 719 Wadhams v. Inness, 444 Wadhams v. Swan, 276, 348, 492 Wadk-k v. Mace, 55 Wadleigh v. Glines, 588, 589 Wadsworth v. Wendell, 78 Wagenblast v. Washburn, 616 Waggener v. Howsley, 439, 440 Waggle v. Worthy, 376 Wagoner v. Wagoner, 798 Wagner v. Finnegan, 395 Wagner v. Hodge, 817, 831, 839 Wagner v. Perry, 207, 254, 260, 856 Wailes v. Cooper, 484, 492, 932, 933 Wait v. Maxwell, 275 Wait v. Smith, 177 Wakeman v. Dutchess of Rutland, 152, 159, 946 Walbridge v. Day, 122. 123, 743 Walderaeyer v. Loebig, 374 Walden v. Gridlev, 122. 145, 146 Waldo v. Long. 345, 453 Waldron v. McCarty. 401. 403, 404 Waldron v. Zollikoffer, 39 Wales v. Bogne, 96 Walke v. Moody, 124 Walken v. Xokken. 874 Walker v. Arnold, "562 Walker v. Barnes. 916 Walker v. Constable, 645, 685 Walker v. Denne, 403 Walker v. Deaver, 283, 322, 336, 346, 374 Walker v. France. 731, 718 Walker v. Gilbert, 484, 690 Walker v. Gilman. 825 Walker v. Hall, 372, 586 Walker v. Johnnon. 683 Walker v. Moore, 225. 228. 234 Walker V. Ogden. 550. 760 Walker v. Quigg. 203 \Valker v. Robinson. 389 Walker v. Ruffner, 111 Walker v. Towns. 068 TABLE OF CASES Ixxxv [EEFEEENCES ARE TO PAGES] Walker v. Wilson, 274, 486 Wall v. Mason, 555 Wallace v. Harmsted, 188 Wallace v. Maxwell, 590 Wallace v. McLaughlin, 526, 533, 641 Wallace v. Minor, 573 Wallace v. Pereles, 421, 461 Wallace v. Talbot, 445 Wallach v. Riverside Bank, 21, 22, 39, 204, 652, 793 Walling v. Kinnaird, 220 Wallison v. Watkins, 499 Walquist v. Johnson, 329 Walsh v. Barton, 765, 862 Walsh v. Calvin, 890 Walsh v. Dunn, 454, 466 Walsh v. Hall, 250, 743 NValmsley v. Stalnaker, 934 Walter v. De Graaf, 48, 828 Walter v. Johnston, 488 Walters v. Miller, 2ilO Walters v. Mitchell, 216, 664, 835, 868 Walther v. Briggs, 306, 568 Walton v. Bonham, 761, 923 Walton v. Campbell, 414, 458 Walton v. Cox, 141, 461, 467 Walton v. Meeks, 236, 782, 783, 795, 816 Walton v. Reager, 114, 115 Walton v. Waterhouse, 564 Waltz v. Barroway, 103 Wamsley v. Hunter, 640' Wanner v. Sisson, 609, 611 Ward v. Ashbrook, 293, 322, 395 Ward v. Bartholomew, 159 Ward v. James, 211, 873, 874 Ward v. Mclntosh, 474 Ward v. Packard, 256 Ward v. Williams, 114, 116 Ward v. Wiman, 254, 743, 747 Warde v. Dixon, 776 Wardell v. Fosdick, 13, 743, 747, 719 Ware v. Houghton, 484 Ware v. Weatherall, 427, 435 War field v. Erdman, 316 Waring v. Ward, 305 Wark v. Willard, 580 Warne v. Greenbaum, 813 Warner v. Hamill, 173 Warner v. Hatfield, 37, 855 Warner v. Helm, 127 Warner v. Sisson, 609, 611 Warren v. Banning, 774, 782, 784, 843 Warren v. Carey, 255 Warren v. Richardson, 190 Warren v. Richmond, 209" Warren v. Stoddart, 300, 342, 405, 510 Warren v. Wheeler, 227 Warwick v. Norvell, 927 Washer v. Brown, 553 Washington v. Mining Co., 212 Wash. City Bank v. Thornton, 151, 300, 336, 360 Waslee v. Rossman, 300, 564 Waters v. Bagley, 335 Waters v. Mattingly, 943 Waters v. Thorn, 194 Waters v. Travis, 534, 9(11 Watkins v. Holman, 843 Watkins v. Hopkins, 672 Watkins v. Warsell, 562, 581 Watkins v. Wimings, 136 Watson v. Baker, 264 Watson v. Boyle, 794 Watson v. Church, 825 Watson v. Hoy, 82 Watson v. Kemp, 680 Watson v. Reissig, 127 Watt v. Rogers, 199 Watts v. Fletcher, -332 Watts v. Holland, 790, 897 Watts v. Parker, 272 Watts v. Waddle, 759, 843, 894 Watts v. Wellman, 306 Waugh v. Land, 158 Way v. Raymond, 213 Wead v. Larkin, 421 Weatherbee v. Bennett, 323 Weatherford v. James, 543 Weaver v. Esary, 825, 915 Weaver v. Wilson, 482, 694 Webb v. Alexander, 401, 472 Webb v. Chisholm, 769 Webb v. Coons, 141 Webb v. Holt, 374, 454 Webb v. Huff, 71 Webb v. Hughes. 201, 883 Webb v. Kirby, 30 Webb v. Pond, 301 Webb v. Spicer, 644 Webb v. Stephens, 201, 874, 891 Webb v. Wheeler, 275, 450 Webber v. Cox, 131 Webber v. Webber, 282 Weiber v. Anderson. 439, 444 Webster v. Conley, 158 Webster v. Hall, 68 Webster v. Haworth, 129, 741 Webster v. Kings Co. Tr. Co., 651, 779, 850, 870, 874, 914 Weddall v. Nixon, 779 Wedel v. Herman, 75 Weed Machine Co. v. Emerson, 592 Weeks v. Grace, 327, 383 Weeks v. Toms, 824 Weems v. Love Manf'g Co., 88 1XXXV1 TABLE OF CASES LaCFEBCMCES ASE TO PAGES] Weeing v. MeCaxiglian, 370 Weghorst v. Clark, 313 Weidenhold v. Koehler, 846 Weidler v. Bank, 122, 129, 732 Weightman v. Reynolds, 586 Weightiuan v. -Spofford^ 705 Weil v. Radley, 780, 805, 869 \Veinheimer v. RUSK, 870 Weintraub v. Seigel, 844, 846, 869 Weinstock v. Levison, 754, 828 Wei so v. Grove, 738 Weisa v. Binnian, 207 Weiss v. Clamitz, 303 Weissbee v. Wallace, 801 Weitzel v. Leyson, 675, 874, 890, 892 Welbon v. Welbon, 368 Welch v. Davis, 161 Welch v. Dutton, 26, 599 Welch v. Hoyt, 1,16 Welch v. Lawson, 224 Welch v. Matthews, 894 Welch v. Sullivan, 66 Welch v. Watkins, 640 Weld v. Traip, 321 Wellborn v. Finley, 562- Wellborn v. Se62 Wheeler v. Sohier, 4-15, 4 IB Wheeler v. Standley, 484, 941 Wheeler v. State, 705 Wheeler v. Styles, 226, 441 Wheeler v. Tracy, 20, 852 Wheeler v. Wayne Co., 358. 371 Wheeling Cr. Gas Co. v. Elder, 212, 527 Wlieelock v. Overhiner, 469 Wheelock v. Thayer, 421 Whisler v. Hicks* 482. 498, 508, 510 Whi taker v. Willis, 800 WhitbcVk v. Cook, 277, 327 Whitbeck v. Waine. 491 White v. Bates, 825 White v. Brcfcaw, 367, 596 White v. Dobson, 533 White v. Ewing, 486, 487 White v. Fc.ljamhe, 13, l."8, 814 White v. Furtzwangler, 489 White v. (litoon, 318 White v. Grave*, 187 White v. Hardin, 755 White v. Harvey, 14, 228, 638 White v. Lowery, 743, 720 White v. MCXKTH, 521 While v. Murray, 718 Whitr v. Needbatn, 878 White r. Park, 144 White v. Patton. 573, 577 While v. Prenly, 415 White v. Savings Bank, 868 White v. Sayre, 57 TABLE OF CASES Ixxxvii [BEFEBESCES ABE TO PAGES] White v. Seaver, 740 White v. Stevens, 283 White v. Stewart, 36.7, 370, 462 White v. Stretch, 928 White v. Sutherland, 249 White- v. Tucker, 236, T59 White v. Whitney, 389-, 415, 419, 433, 434 White v. Wilhams, 466 Whitehead v. Brown, 609 Whitehead v. Carr, 154 Whitehill v. Gotwalt, 371, 372 Whitefturst v. Boyd, 36, 640 Whiteman v. Castlefourg, 673 Whitener Realty Co. v. Hitter, 790 Whitesides v. Cooper, 375 Whitesides v. Jennings, 227 Whitesides v. Magruder, 332, 348 W T hite\vorth v. Pool, 153 Whiting v. Brooks, 145 Whiting v. Dewey, 160, 452 Whitley v. Johnson, 563 Whitlock v. Denlinger, 248, 482, 678, 692 Whitlock, Ex parte, 829 Whitman v. Westman, 622 Whitmore v. Parks, 126 Whitney v. Allaire, 14, 198, 719>, 743, 746, 747 Whitney v. Arnold, 73 Whitney v. Cochran, 675 Whitney v. Crouch, 248, 249, 250, 665, 873, 889 Whitney v. Dinsmore, 2SO, 338, 404, 409 Whitney v. Groo, 804 Whitney v. Lewis, 485, 501, 502 Whitney v. Railroad Co., 323 Whitney v. 'Smith, 617 Whitney Co. v. Smith, 887 Whitson v. Grosvenor, 562, 566 Whittaker v. Kone, 276 Whittaker v. Miller, 46 Whittemore v. Whittemore, 532, 910 Wliittemore v. Farrington, 608, 705, 714, 947 Whitten v. Krick, 311, 336, 352, 374 Whittey v. Lide, 923 Whittington v. Corder, 22 Whitworth V. Stuckey, 516, 680, 696, 703 Whitzman v. Hirsh, 412, 436 Wickham v. Ernest, 670 Wickham v. Evered, 755 Wic'kliff v. Clay, 637, 759, 761 Wickliff v. Lee,' 755, 811 Wicklow v. Lane, 565 Wickman v. Rdbinson, 681 Widmer v. Martin, 899 Wieland v. Renner, 805 Wiemann v. Steffen, 792, 811 Wiesner v. Zaun, 562 Wiggins v. McGimpsey, 37, 203, 207, 387, 652, 665, 671 Wiggins v. Fender, 401, 410, 423, 459 Wiggins V. Stephens, 426, 432 Wight v. Gottschalk, 376 Wight v. Shaw, 596 W T ightman v. Reside, 905 Wilburn v. McCalley, 119 Wikox v. Latin, 193, 756 Wilcox v. Lucas, 620 Wilcox v. Musche, 340 Wilcoxon v. Galloway, 533 Wilde v. Fort, 190, 233 Wildemeyer v. Loebig, 369 Wilder v. Ireland, 271, 275, 380, 462, 466, 475 Wilder v. Smith, 933 Wilder v. Tatum, 228, 433 Wiley v. Fitzpatrick, 691, 925, 927 Wiley v. Howard, 255, 670, 678, 877 Wiley V. White, 138, 685, 707 Wilgus v. Hughes, 547 Wilhelm v. Federgreen, 812 Wilhelm v. Fimiple, 2d3, 237, 652, 7<63 Wilkerson v. Allen, 83 Wilkerson v. Chadd, 482 Wilkins v. Hogue, 485, 934 Wilkins v. Irvine, 652 Wilkinson v. Green, 549 Wilkinson v. Olin, 311 Wilkinson v. Roper, 54 Willan v. Willan, 9.38, 957 Willard v. Smith, 227 Wlllard v. Twitchell, 271 Wilier v. Weyand, 539 Willets v. Burgess, 340, 346 William Farrell Co. v. Deshon, 511 Williams v. Beeman, 410, 436, 451 Williams v. Baker, 498 Williams v. Beatty, 324 Williams v. Brieker, 774, 785, 842 Williams- v. Brigg, 805 Williams v. Burg, 415, 459, 464, 466 Williams' v. Burrell, 443. 453 Williams v. Carter, 759, 801 Williams v. Cudd, -625 Williams v. Cummings, 131 Williams v. Daly, 169, 171 Williams v. Doolittle, 849 Williams v. Edwards, 533, 542, 544, 790, 791 Williams' v. Fowle, 301 Williams v. Fryburger, 491 Williams V. Gilbert, 887 Williams v. Glenn, 82, 85, 91 Williams v. Glenton, 243 Ixxxviii TABLE OF CASES ULFEEEXCES ABE TO PAGES] Williams v. Hathaway, 714 Williams v. Hogan, 272, 276 Williams v. Johnson, 121 Williams v. Lee, 922 Williams v. Mansell, 522 Williams v. Mark, 777 Williams v. 'McDonald, 113 Williams v. Mitchell, 761 Williams v. Monk, 649 Williams v. O'Donnell, 410 Williams v. Pendleton, 547 Williams v. Peters, 562 Williams v. Pope, 599 Williams v. Porter, 805, 899 Williams v. Potts, 37 Williams v. Reed, 711 Williams v. Rogers, 759, 761, 764 Williams v. Sax, 496 Williams v. Schennbri, 828 Williams v. Seawell. 831 Williams v. Shaw. 394, 462 Williams v. Thomas, 260, 269, 440, 667 Williams v. Wetherbee, 281, 416, 423, 464, 469, 474 Williams v. Williams, 562 Williams v. Wilson, 760 Williamson v. Banning, 835 Williamson v. Field, 82, 822 Williamson v. Johnston, 125 Williamson v. Neeves, 649, 876 Williamson v. Raney, 661, 755 Williamson v. Test,' 437 Williamson v. Williamson, 454 Willis v. Saunders, 616, 618, 622 Willison v, Watkins, 550 Wills v. Fisher, 778 Wills v. Porter, 193 Wills v. Primm, 471, 473 Wills v. Slade, 804 Wills v. Van Dyke, 123 Willson v. WiUson, 289, 343, 425, 451 Wilmot v. Wilkinson, 30. 212 Wilsey v. Dennis, 149, 799, 860 Wilson v. Helen, 859 Wilson v. Breyfogle, 747 Wilson v. Bumfield. 539, 911 Wilson v. Carey, 33 Wilson v. Coehran. 323, 407, 421, 723, 724, 726, 720 Wilson v. Cox, 533 Wilson v. Dcen. 648 Wilson v. Forbes, 274, 283, 291 Wilson v. Getty, 37, 38, 647 Wilson v. Higbee, 260, 722 Wilaon v. Holden, 16 Wilson v. Holt. 140. 142 Wilfon v. Inloes. 54 Wilson v. Irish, 148. 385, 734 Wilson v. Jeffries, 796 Wilson v. Johnson, 55 Wilson v. Jordan, 481 Wilson v. King, 622 Wilson v. Korte, 794, 849, 874 Wilson v. Mason, 186 Wilson v. MeElwee, 464 Wilson v. McNeal, 76 Wilson v. MVeagh, 844 Wilson v. 'Moore, 511 Wilson v. Parshall, 297 Wilson v. Peele, 379, 452 Wilson v. Raben, 83 Wilson v. Riddick, 203 Wilson v. Robertson, 228 Wilson v. Seybold, 526, 801 Wilson v. Shelton, 437 Wilson v. Smith, 94, 109 Wilson v. Spencer, 224, 226 Wilson v. Stewart, 625 Wilson v. Tappan, 799, 838, 879 Wilson v. Taylor, 417 Wilson v, Traer, 61 Wilson v. Vogel, 772, 839 Wilson v. Vreeland, 471 Wilson v. Wetherly. 550 Wilson v. White, 115, 118, 822 Wilson v. Widervham, 272, 420 Wilson v. Williams, 538 Wilson v. Wood, 148, 149, 150 Wilson v. Zajioe, 915 Wilson's Appeal, 729>, 731, 724 Wilson's Case, 181 Wilt v. Franklin, 437 Wiltsie v. Shaw, 842 Wilty v. Hightower, 385. 391, 403, 734, 696, 933 Wimberg v. Schwegeman, 678, 923 Wimberly v. Collier, 464 Winans v. Huyck, 614 Winch v. Bolton, 483 Winders v. Sutherland, 417 W indie v. Bonebrake, 555 Winfrey v. Drake. 581, 582, 939 Wing v. Dodge, 113 Wingard v. Copeland, 648, 868 Wingate v. Hamilton, 534. 639 Wingo v. Brown, 123, 125, 129 Wingo v. Parker, 562 Winkler v. Rigging, 65 Winkler v. Jerrue, 21, 887 Winne v. Reynolds, 655, 8Tr3, 908, 909 Winningham v. Pennock, 336, 347 Winnipiseagee Paper Co. v. Eaton, 445, 454 Winnipiscogee Lake Mfg. Co. v. Par- ley, 607 WfaMknr v. Clark. 142 v. C'rowell, 141 TABLE OF CASES Ixxxix! [EEFEBENCES AEE TO PAGES] Winslow v. McCall, 3&1 Winstead v. Davis, 484 Winter v. Dent, 130 Winter v. Elliott, 764 Winter v. Stock, 773^ Wintermute v. Snyder, 960 Winton v. Sherman, 219 Wise. Cent R. Co. v. Sehug, 330 Wise v. Postlewait, 63 Wisely v. Findlay, 56 Wiswall v. McGowan, 528, 542 Witbeck v. Waine, 718 Withers v. Baird, 61, 154, 640, 834 Withers v. Bank, 426, 439, 451 Withers v. Crenshaw, 364, 446 Withers v. Morell, 926 Withers v. Powers, 391 Witherspoon v. McCalla, 763 Withey v. Munford, 416 Withouse v. Schaack, 614. 615 Wittbecker v. Watters, 620 Witte v. Koerner, 819 Wittenberg v. Groves, 520 Witter v. Biscoe, 153 Wofford v. Ashcroft, 925, 928 Wohlforth v. Chamberlain, 240, 780 Wolbert v. Lucas, 728 Wolcott v. Johns, 793 Wold v. Newguard, 914 Wolf v. Fogarty, 66 Wolfe v. Land Co., 462 Wolford v. Jackson, 49, 200, 218 Wolf or d v. Phelps, 130 Wollenberg v. Rose, 785 Wolter v. Dixon, 757' Wolverton v. Stevenson, 832 Womack v. Coleman, 845 Wood v. Bibbins, 425 Wood v. Colvin, 134 W T ood v. Downes, 194 Wood v. Forncrook, 393, 394 Wood v. Griffith, 532 Wood v. Johnson, 267 Wood v. Levis, 125 Wood v. Majoribanks, 850 Wood v. Mason, 82, 187 Wood v. Perry, 549 Wood v. Thornton, 448 Woodbury v. Luddy, 538 Woodcock V. Bennett, 22, 524, 530 Woodenbury v. iSpier, 871 Woodfolk v. Blount, 710 Woodhead v. Foulds, 805 Wooding v. Grain, 881, 888 Woodruff v. Bunce, 485, 696,T$2l, 924, 926 Woodruff v. Depue, 928 Woods v. Bennett, 340 Woods v. North, 253. 585, 889 Woodward v. Allen, 397, 464 Woodward v. Brown, 335 Woodward v. McCollum, 172, 837 Woodward v. Rogers, 511, 513 Woodward v. Woodward, 178 Woodward's v. App., 41 Woodworth v. Jones, 485 Woolcot v. Peggie, 545 Wooley v. Newcomibe, 295, 297, 298 Woolums v. Hewitt, 311 Workman v. Mifflin, 384 Worley v. Frampton, 158 Worley v. Hineman, 283, 288, 338 Worley v. Northcott, 670, 671, 673 Wormser v. Gehri, 807 Wortin v. Howard, 117 Worthington v. Curd, 206, 311, 926 Worthington v. Hylyer, 54 Worthington v. McRoberts, 85, 88, 113 Worthington v. Warrington, 30, 236 Worthy v. Johnson, 161 Wotton v. Hele, 380, 472 Wi:agg v. 'Meade, 349 Wray v. Furniss, 921, 923 Wren v. Cooksey, 850 Wright v. Blackley, 670, 877 Wright v. Bott, 27, 163 Wright v. Boram, 366 Wright v. Carvillo, 13, 7L8, 720 Wright v. Delafield, 611, 671 Wright v. Dickson, 639, 757 Wright V. Edwards, 95 Wright v. Glass, 810 Wright v. Griffith, 189, 196 Wright v. Mayer, 804 Wright v. Nipple, 283, 446, 452 Wright v. Phipps, 403, 404, 497 Wright v. Sperry, 419 Wright v. Suydam, 792 Wright v. Swayne, 637 Wright v. Wells, 62 Wright v. Wright, 678 Wright v. Young, 538 Wuesthoff v. Seymour, 249 Wyant v. Tuthffi, 83 Wyatt v. Garlington, 681 Wyatt v. Rambo, 117 Wyche v. Green, 609 Wyche v. Mafcklin, 742 Wyman v. Ballard, 339 Wyman v. Brigden, 389 Wyman v. Campbell, 120 Wyman v. Heald, 680 Wynkoop v. Shoemaker, 847 Wynn v. Harmon, 592, 596 Wynne v. Morgan, 880 Y. Yancey v. Lewis, 934 Yancey v. Tatlock, 311 xc TABLE OF CASES [REFERENCES ABB TO PAGES] Yazel v. Palmer, 691 Yeates v. Prior, 49, 256 Yock v. Mann, 562 Yoctim v. Foreman, 93, 94 Yoder v. Swear ingen, 766 Yokum v. McBride, 243 Yokum v. Thomas, 457 York v. Allen, 497 York v. Gregg, 743, 911 Yost v. Devault, 538 Youmans v. Edge rt on, 643 Young v. Bumpass, 252 Young v. Butler, 386, 486, 696, 924 Young v. Clippenger, 367, 592 Young v. Collier, 87, 880 Young v. Figg, 499 Young v. Gower, 323 Young v. Harris, 247, 676, 679, 684, 739, 761 Young v. Hervey, 860 Young v. Hopkins, 259, 260 Young V, Lilian!, 799 Young v. Loftus, 507 Young v. Lorain, 105, 600 Young v. McClung, 82, 203, 696 Young v. McCormiek, 923 Young v. Paul, 37, 537, 541, 918 Young v. Ratbbone, 823 Young v. Sincombe, 670 Young v. Stevens, 756 Young v. Triplett, 414 Young v. Wright, 38 Youngman v. Linn, 724, 727, 72ft Younie v. Walrod, 203 Y^aguirrc v. Garcia, 227 Z. Zarate v. Villareal, 595 Zarkowski v. Schroeder, 275 Zelman v. Kaupherr, 847 Zempel v. Hughes, 196 Zent v. Picken, 272, 275 Zerfing v. Seelig, 296, 702 Zebley v. Sears, 539 Zichen v. Smith, 214 Zimmerman v. Lym-h, 370 Zimmerman v. Owen. 785 Zizich v. Investment Co., 873 Zollman v. Moore, 955 Zorn v. McParland, 651, 896 Zuenker v. Kuehn, 940, 952 MARKETABLE TITLE TO REAL ESTATE AND PURCHASERS OF DEFECTIVE TITLES, BOOK I. OF REMEDIES IN AFFIRMANCE OF THE CONTRACT OF SALE. OF AFFIRMANCE BY PROCEEDINGS AT LAW. OF PROCEEDINGS AT LAW WHILE THE CONTRACT IS EXECUTORY. CHAPTER I. INTRODUCTORY. Title to real estate has been defined to be " the means whereby the owner of lands hath the just possession of his property," x but the expression is commonly used in a figurative sense to denote the muniments of title of the owner, or that whole body of documents or facts which evidence the just ownership of lands. Titles are either (1) good ; (2) doubtful ; or (3) absolutely bad. A good title consists in the rightful ownership of the property and in the rightful possession thereof, together with the appropriate legal evidence of rightful ownership. 2 The rightful owner of an estate may be in the rightful possession thereof, but unless he is supplied with documentary evidence of title, where he holds by purchase, or can prove his right by the testimony of witnesses or other instruments of evidence, where he holds as heir, that is, by descent, his title cannot be said to be good. Sir William Black- tone declares that a perfect title consists in the union of the posses- 1 1 Co. Inst.345. 2 In Jones v. Gardner, 10 Johns. (N. Y.) 269, it was said that title, as between vendor and purchaser, means the legal estate in fee, free and clear of all valid claims, liens or incumbrances whatever. MAKKETAHLE TITLE TO KEAL ESTATE. sion, the right of the possession and the right of property in one and the same person. 1 This is true in a general sense, but the defi- nition scarcely embraces all the elements of a good title, as that term is employed between vendor and purchaser. A purchaser in possession who has paid the whole purchase money, but who has not received a conveyance, may be said to have the possession, the right of possession and the right of property, but not having received a deed, the indispensable evidence of legal title in such a case, his title cannot be said to be good. In our definition of a good title we have not considered as an ele- ment the freedom of the estate from liens, charges or incumbrances of any kind. Strictly speaking, an incumbrance, unless created by deed, such as a mortgage or deed of trust, operates no change in the title, though it is common, as between vendor and purchaser, to speak of the title as bad when the estate isincumbered. And even mortgages and deeds of trust, though there is in each case a nom- inal transfer of the legal title, being mere securities for the pay- ment of debts, are very generally held to create chattel interests only in the mortgagee or grantee, the legal title really remaining in the mortgagor or grantor. 2 But, while technically the title to an incumbered estate may be good, in the sense that it would support an action of ejectment, a purchaser, without notice of the incum- brance, who by his contract is entitled to demand a good title, can no more be required to accept the title if the estate is incumbered than he could be if the paramount title were outstanding in a stranger. Doubtful titles are those which turn upon some question of law or fact which the court considers so doubtful that the purchaser will not be compelled to accept the title and incur the risk of a lawsuit by adverse claimants. A subsequent chapter of this work is devoted to the equitable doctrine of doubtful titles ; it is, therefore, deemed unnecessary to consider them further here. 8 Absolutely bad titles are those which hick not necessarily all, but some one or more of the essentials of a good title, and, as between vendor and purchaser, may he such though the paramount title be 1 1 Bl. Corn. 199. 2 Warvclle Vend. 649. Post, ch. 81. INTRODUCTORY. . 6 really in the vendor. Thus, if the vendor, being the rightful owner, is out of possession, and an adverse claimant is wrongfully in possession, the title will be bad so far as the purchaser is con- cerned, though amply sufficient to enable the vendor to recover the premises in ejectment. 1 When a purchaser of real property discovers that the title is bad he must choose between a large variety of measures which may be taken for his relief. The most important thing to be considered, in the first place, is, whether the contract is executory or executed. A contract for the sale of lands is said to be executory until the pur- chaser has received a conveyance ; after a conveyance has been made the contract is said to be executed, whether the purchase money has or has not been paid. If the contract remains execu- tory, he is next to determine whether he will adopt a remedy which affirms the agreement or one which rescinds or disaffirms the con- tract. If he elects to affirm, there are several courses open to him. At law he may maintain an action to recover damages for a breach of the vendor's express or implied contract to convey a good title; 2 or. he may buy in the rights of one having the better title, or an incimibrance on the premises, and set off the amount so expended against the vendor's action for the purchase money, 3 or for damages for breach of the contract. 4 Or, if the facts as to the title were falsely and fraudulently represented to him, he may keep the estate, agree with the rightful owner, or take the risk of eviction, and maintain against the vendor the common-law action of trespass on the case for deceit, or the equivalent of that action under modern codes of practice. 5 And lastly, in the way of affirmance, instead of adopting any one of these courses, he may file his bill in equity, or bring his equitable action, praying that he be permitted to apply the unpaid purchase money to 'the removal of objections to the title, or that he be allowed compensation for defects, and that the vendor be compelled to specifically perform the contract, and that, if specific performance be impossible, damages in lieu thereof be 1 Post, 290, ch. 3L * Ch. 2. 3 Ch. 24. 4 Ch. 2. 8 Ch. 11. 4 MAKKKTADLE TITLE TO REAL ESTATE. awarded the plaintiffs. 1 In all these cases the purchaser elects to abide by the contract and keep the estate. But the contract being still executory, the purchaser, on dis- covery that the title is bad, may determine upon rescission. To rescind a contract is to annul or abrogate it, the consideration which passed from either party being returned, and both parties being placed in stain quv, that is, as nearly as possible in the same condi- tion in which they were before they entered into the contract. Rescission of an executory contract for the sale of lands may be accomplished in three ways : First, by the act of the parties them- selves. 2 The vendor may agree to take back the estate and to }x?rmit the purchaser to keep the purchase money if it has not been paid. This is frequently done. Secondly, by proceedings at law. Of course a court of law proper is not competent to pronounce a decree of rescission directing either party to restore what he has received by virtue of the contract. But the purchaser may simply abandon the possession of the premises and set up the want of title as a defense when sued for the purchase money ; s or, if he has paid a part or the whole of the purchase money, he may sue in a court of law to recover it back, having in the meanwhile abandoned the premises or restored them to the vendor. In this way rescission is virtually accomplished at law. Thirdly, the purchaser may tile his bill in equity on failure of the title, praying that the contract be in terms rescinded ; or to a bill tiled by the vendor for specific per- formance, he may set up as a defense the plaintiffs want of title, provided he has restored, or offers to restore, the premises to the vendor. 4 The rescission of executory contracts is peculiarly a ground of equitable jurisdiction. Courts of equity possess all the machinery for ascertaining what is necessary to put the parties in statn quo, and to compel either party to do whatever is required to that end. So much for the remedies of the purchaser, either by way of affirmance or rescission, while the contract is executory. They are all r<>-exirttent, and his choice of the one or the other is to be con- 1 Chs. 17. 18 and 19. Cli. 28. Ch. 24. Lli. 30. New-berry v. Kuflin, 102 Vn. 73; 4. $. K. 73, citing the text. INTRODUCTORY. 5 frolled by the particular circumstances of Ins case. He may con- ceive it to be an advantage to him to keep the estate with damages or compensation for defects, or he may deem it best to restore the estate and have back his purchase money. But while the remedies by way of action to recover back the purchase money and action to recover damages for fraudulently imposing a bad title on the plain- tiff are concurrent, they are not co-extensive in respect to the relief that is to be afforded ; and this should be considered by the pur- chaser in choosing his remedy. In the former action he recovers no more than the consideration money and interest ; and the same may be said of an action to recover damages for a breach of the contract to convey a good title, in which there is no averment of fraud on the part of the defendant. 1 But where the action for damages is expressly grounded upon the defendant's fraudulent representations as to the title or concealment of defects, and the plaintiff establishes his case, he will be entitled to recover damages for the loss of his bargain, that is, the value of the estate at the time when the con- tract should have been completed by the conveyance of a good title. 2 Therefore, in a case in which the value of the estate has materially increased between the inception of the contract and the time when it should have been completed, and the purchaser can show that the defendant was guilty of fraud with respect to the title, he should take care so to frame his declaration or complaint that his action shall be the equivalent of the action of deceit at com- mon law, so that he may recover as damages the increased value of the estate. The defenses or answers to the purchaser's application for relief while the contract is executory, most frequently met with in the reports, are that the purchaser in the first instance agreed to take the title such as it was, or that he had since, by his conduct, waived all objections to the title ; 3 that the vendor has the right to perfect the title, 4 or to require the purchaser to take the title, with compen- sation for defects ; 5 that the purchaser has not placed the vendor 1 Ch. 10, 91. 2 Ch. 10, 97. 3 Ch. 8. 4 Ch. 32. 5 Ch. 33. O MARKETABLE TITLE TO REAL ESTATE. in statu quo, and that the positions of the parties with respect to the subject-matter of the contract have so materially changed that it will he impossible to place them in statu quo y 1 and, where the gravamen of the action or defense is the vendor's fraud in conceal- ing the state of the title, that the defects complained of all appear from the public records, and that the vendor is not bound to call the attention of the purchaser to defects which are thus open to his inspection. 2 We have now presented a brief outline of the courses open to the purchaser, and the attitude of the vendor on failure of the title, where the contract is executory. It remains to indicate, in a like manner, their respective rights and remedies where the contract has been executed by the delivery and acceptance of a conveyance. First, it is to be observed that except in cases in which the pur- chaser has been fraudulently induced to enter into the contract or to accept a conveyance, or unless there has been some such mistake as will entitle him to relief, his remedies are all necessarily in affirm- ance of the contract, for, as a general rule, there can be no such thing as the rescission of an executed contract for the sale of lands. The reason is that the parties can seldom, if ever, be placed in statu quo. We shall see hereafter, however, that there is a tendency in some of the States to modify this rule. 8 And not only are the remedies of the purchaser, in the absence of fraud or mistake, nec- essarily in affirmance of the contract after a conveyance has been accepted, but the existence of those remedies themselves depend largely upon his own foresight and prudence. The law protects the purchaser, at least where the vendor sells in his own right, by its implication of a contract that a good title is to be conveyed, up to the time when the parties are ready to complete the contract by the payment of the purchase money, the delivery of possession, and the execution and acceptance of a conveyance. But any implication in his favor ceases at this point, and to protect himself against loss in the future, in the event that the title shall prove bad, he miiht Me that covenants for title by the vendor, adequate for that pur- pose, are inserted in the conveyance. The maxim caveat emptor 1 Chi. 86 and 80. Ch. 11. $ 104. Ch. 26. INTRODUCTORY. 7 applies. 1 This is the rule which prevails in most of the American States, though in some of them it is qualified to a certain extent, as will be hereafter noted. It may be doubted whether a rigid applica- tion of this rule will subserve the ends of justice in all cases, particularly those in which the purchase money remains unpaid when the purchaser is evicted, or when it is discovered that the title is bad. The maxim or rule caveat emptor has no place in the civil law. By that law the purchaser, whether lie has or has not received a conveyance, is always to be reimbursed if he loses the estate through a defect in the title, unless, indeed, it was expressly under- stood that the title was bad, and the purchaser bought only such right or interest as the vendor might have. At common law, of course, no hardship results in refusing relief to a purchaser who, with knowledge that the title is bad, accepts a conveyance without covenants for title. He simply gets what he buys, and he has no ground for complaint if he loses the estate. But hardship does often result in cases in which covenants for title were unintentionally omitted, through the ignorance and inexperience of the parties and their advisers, a circumstance likely to occur in rural districts, where the village blacksmith frequently acts in the capacity of justice of the peace and legal adviser for the community. Assuming, however, that the conveyance contains the usual covenants for title, the remedy of the purchaser is by action for breach of covenant if he be evicted, or if the title prove to be bad or the estate incumbered, in which action he will recover real or nominal damages, according to whether he has suffered real or nominal injury from the breach. If, however, he was fraudulently induced to accept a conveyance with covenants for title, he is not obliged to bring his action for breach of covenant, but may have his action on the case for deceit, just as if the contract were executory, the better opinion being that the ven- dor's fraud is not merged in his covenants for title. 2 And instead of taking the initiative, and suing for breach of covenant, the pur- chaser may, where the purchase money is still unpaid, detain the same in his hands, and, when sued by the vendor, set up the breach of covenant as a defense by way of recoupment or counterclaim, pro- vided he has then a present right to recover substantial, and not merely 1 Ch. 27. 2 Ch. 27. 8 MARKETABLE TITLE TO REAL ESTATE. nominal damages, for breach of the plaintiffs covenants. 1 These, then, are the remedies of the purchaser at law by way of affirmance of the executed contract. In equity he may tile his bill, praying that the grantor be compelled to perform specifically certain of the covenants for title, for example, the covenant against incumbrances, by removing an incumbrance from the estate ; and the covenant for further assurance, by the execution of such further assurance as may be reasonably required. 3 And where, through error or mistake, the conveyance does not contain such covenants for title as the pur- chaser may demand, he may file his bill praying that the conveyance be reformed, so as to express the true intention of the parties. 8 We have already observed that an executed contract for the sale of lands cannot, as a general rule, in the absence of fraud or mis- take, be rescinded, either at law or in equity. There is, however, a certain kind of relief contended for in some cases at law, which, if conceded, amounts to a virtual rescission of the contract. The gen- eral rule is that in an action for breach of the covenant of seisin the plaintiff can recover nominal damages only, unless he has been actually or constructively evicted from the premises. This rule, however, has been modified in some of the States, and the pur- chaser permitted to recover the whole consideration money, pro- vided he has reconveyed the estate to the grantor. This of itself practically amounts to a rescission of the contract. And if he may thus recover the consideration money as damages in an action for breach of the covenant of seisin, no reason is perceived why he may not avail himself of that breach as a defense when sued for the purchase money, provided, of course, that he reconveys or offers to reconvey the premises to the plaintiff. The effect would l>e merely to avoid circuity of action. 4 But the contrary rule, namely, that a breach of the covenant of seisin is no defense to an action for the purchase money unless the defendant has been actu- ally or constructively evicted from the estate is undoubtedly estab- lished in most of the American States. 5 Ch. 16, Cb. 81. Ch. 22. Ch. 26. Ch. 16. IXTIIOTHJCTOEY. 9 As to the rescission of an executed contract on the ground of fraud or mistake, it is only necessary to say that this is one of the principal heads of equitable jurisdiction. 1 The vendor's fraud is not merged in his covenants for title. Equitable relief is also given the purchaser by way of injunction against proceedings to collect the purchase money where the grantor is insolvent or a non- resident, in which case there is no adequate remedy upon the cove- nants for title. 2 And in one or two of the States this relief is afforded on a clear failure of the title without even a suggestion of non-residence or insolvency of the grantor. 3 This, of course, is equivalent to a rescission of the contract if the injunction is made perpetual. The defenses to the purchaser's measures for relief on failure of the title, where the contract has been executed, most frequently met with in the reports, are that the purchaser accepted a conveyance without covenants for title, or that the covenants have not been broken, or, at least, that there has been no such breach as will entitle the purchaser to substantial damages ; or that the right to recover for a breach of covenants executed by the defendant as a remote grantor did not pass to the plaintiff, being a chose in action, and incapable of assignment at common law ; or that the paramount title was acquired by the defendant after the conveyance was exe- cuted, and had, by operation of law, inured to the benefit of the plain- tiff and taken away his right of action ; or, in a case of alleged fraud, that the plaintiff by his conduct had waived all ground of complaint, or that there was in fact no fraud, the true state of the title being apparent from the public records, which the purchaser will be re- sumed to have examined. From the foregoing outline of the remedies of the purchase! and the defenses of the vendor on failure of the title, the utility and convenience of the plan or analysis of this work, pnd the ordei in which those remedies and defenses are treated, will be perceived. The term " marketable " or " defective " title, as between vendo and purchaser, is relative as well as substantive, and has reference alike to the remedies of the parties, the incidents of those remedies 1 Ch. 35. 1 Ch. 34. *Ch.34, 337 2 10 MARKETADLE TITLE TO IJK.vl. ESTATE. and the essential elements of a good title. Accordingly, it has been deemed proper and convenient to consider, under that head, not only the equitable doctrine of marketable title proper, but the law of covenants for title, the nature and incidents of each of those cove- nants, the extent to which they run with the land, the doctrine of estoppel, or after-acquired title, and the specific performance of covenants for title, as well as the specific performance of executory contracts for the sale of lands. The subject of the work naturally divides itself into the two principal heads of remedies in affirmance, and remedies in rescission of the contract, together with their inci- dents. One advantage anticipated from this classification is that it will serve to impress upon the mind of the student the cardinal principle that the purchaser cannot, because the title is bad or doubt- ful, escape the obligation his contract, and at the same time retain its benefits. Restitution of the consideration on one side, and of the subject-matter of the contract on the other, is an invariable con- dition precedent to rescission. CHAPTER II. ACTION FOR BREACH OF CONTRACT. GENERAL PRINCIPLES. FORM OF ACTION. 1. DOUBTFUL TITLE IN ACTION FOR DAMAGES. 2. PURCHASER IN POSSESSION MAY SUE. 3. DEFENSES TO THE VENDOR'S ACTION FOR BREACH OF CON- TRACT. 4. 1. GENERAL PRINCIPLES. FORM OF ACTION. Usually a contract for the sale of real -estate allows time for the exami- nation of the title, and fixes a day in the future for the pay- ment of the purchase money and the execution of a conveyance. 1 If, when that day arrives, the purchaser shall have performed, or offered to perform, everything on his part necessary to entitle him to a conveyance, and the vendor be unable to convey such a title as the purchaser may demand, the contract is broken, and the pur- chaser is as much entitled to an action for damages as if the vendor, being able to convey a good title, had willfully refused to perform the contract. 2 If the contract was not under seal the proper action for the breach will be trespass on the case in assumpsit ; 3 if the con- tract was under seal, as in the case of a title bond, the proper action will be covenant.' In most cases the purchaser may elect between his right to recover 1 In Bennet v. Fuller, 29 La. Ann. 663, a distinction was drawn between an actual sale and a contract " to sell on a future day;" but the court held that if, in the latter case, at the appointed day the vendor was unprepared to sell and convey a clear title, he would be liable in damages. 2 Sugd. Vend. (8th Am. ed.) 357 (236). Jenkins v. Hamilton, 153 Ky. 163; 154 S. W. 937. Grant v. McArtlmr, 153 Ky. 356; 155 S. W. 732. 8 Bac. Abr. Assumpsit (C). 4 3 Bl. Com. 155; Haynes v. Lucas, 50 111. 436. But he may recover back the purchase money under the common counts, though the contract was under seal. Greville v. Da Costa, Peake Add. Cas. 113. In a suit on a title bond conditioned to make title as soon as procured by the vendor, the complaint will be fatally defective if it do not allege that the vendor had obtained the title. Stone v. Young, 4 Kans. 11. In such a suit an averment that the defendant failed and refused, and still fails and refuses to perform the stipu- lations and conditions of the bond, is sufficient under the Code. Holman v. Criswell, 15 Tex. 395, the court saying that the common-law rule, contra, in 1 Chitty PI. 363 does not apply to the system of Code pleading in Texas. [11] 12 MAKKETABLE TITLE TO KEAI, ESTATE. damages for breach of the contract in failing to convey a good title and his right to rescind the contract and recover back the purchase money, or such part thereof as may have been paid, 1 and where the contract is not under seal, the form of action is the same in either case trespass on the case in assuinpsit. The two causes of action, however, must not be confounded, as seems sometimes to have been done. The action of assuinpsit is adapted to the recovery of moneys due by implied contract, and also to the recovery of dam- ages for the breach of a contract, but the plaintiff must so frame his declaration as to entitle him to the particular relief desired. Thus, if he desires merely to recover back the purchase money, ignoring the contract and treating the purchase money as so much money paid out to the use and benefit of the vendor, he will employ the com- mon money counts, while, if he intends to affirm the contract ho will set out the substance of it in his declaration, and claim dam- ages for the breach. 14 lie may, however, if he chooses, employ the money counts and add a count upon the contract, so that if his proof fails him upon the one count it may entitle him to recover upon the other. 2 Thus proof that the title is merely doubtful and not absolutely bad will entitle the purchaser to have back his pur- chase money, but would give him no right to damages, 3 and, accord- ing to the English decisions, he could not under the common counts recover back the costs of examining the title. 4 The rule that the 1 Jannlewyez v. Quagliano, 88 Conn. 60; 8 All. 9 8fl7. 'Chitty Cont. (10th Am. ed.) 339; 1 Sugd. Vend. (8th Am. cd.) 537 (358). 'See Camfield v. Gilbert, 4 Esp. 221. In Doherty v. Dolan, 65 Me. 87; 20 Am. Rep. 667, the purchaser, after paying $1,000 of the purchase money, brought an action against the vendor for damages, alleging inability to con- vey a good title. In Maine the meamre of damages in such a ease in the value of the land at the time the conveyance should have been made, and where part of the purchase money has been paid, the plaintiff is entitled to recover thin value. ICKH what remains due on the contract price. The necessary eonse- qucnee of this rule is that where part payment has been made and the value of the land has decreased, and is less at the time fixed for performance than Ihe contract price, the plaintiff will not be entitled to recover a.s damages as much as he has paid on the land. To obviate this difficulty, tin- plaintiff in this case was permit ted to amend his declaration by adding a eount for money had and received, under which he might recover all that he had paid on the contract. IngalU v. Hahn, 47 Hun (N. Y.). 104. 1 Sugd. Vend. (th Am. ed.) 547 (3f2); Chit. Cont. (10th Am. ed.) 339; Chit. PI. (2d ed.) 196, n. ACTION FOR BREACH OF CONTRACT. 13 extent of the purchaser's recovery is to be governed by the nature of the relief sought, that is, whether in affirmance or disaffirmance of the contract, prevails, it is apprehended, as well under the Code practice as at common law. The petition or complaint should be so drawn as to indicate whether the plaintiff seeks merely to recover back the purchase money or whether lie claims damages for breach of the contract. The remedy by action for breach of contract is concurrent with the action of deceit when fraud exists, 1 but is seldom resorted to in such a case, the plaintiff being entitled to a greater measure of dam- ages in the action of deceit. He may also elect between these remedies and his remedy in equity by suit for rescission, 2 or for specific performance, or damages in lieu thereof. 8 But the action for damages is broader than the latter remedy, for the purchaser's bill is frequently dismissed without prejudice to his remedy at law on the contract. 4 Where the purchaser may elect between several remedies he cannot, of course, be required to adopt one in prefer- ence to another. 5 Nor, if the purchaser has a right to recover damages for breach of the contract, can the vendor insist upon tak- ing back the property and returning the consideration. It is with the purchaser to say whether he will affirm or rescind the contract. 6 1 2 Warvelle Vend. 955; Lynch v. Merc. Trust Co.. 18 Fed. Rep. 486. 2 Reese v. Kirk,- 29 Ala. 406; Alvarez v. Brannan, 7 Gal. 503; 68 Am. Dec. 274; Wright v. Carillo, 22 Cal. 604. 3 Haynes v. Farley, 4 Port. (Ala.) 528; Greene v. Allen, 32 Ala. 215. 4 Sugd. Vend. (8th Am. ed.) 357. 5 Ban-on v. Easton, 3 Iowa, 76; Katz v. Henig, 66 N. Y. Supp. 530; 32 Misc. 672. 6 Lynch v. Merc. Trust Co., 18 Fed. Rep. 486 ; Krumm v. Beach, 96 N. Y. 406, the court saying: "The contention of the vendors is that the defrauded vendee has but one remedy, and that consisted of a rescission of the contract and the recovery back of the consideration paid, after an offer to reconvey and a tender of what had been received. Doubtless this remedy existed, but the vendee was not compelled to adopt it. He had a right, instead of rescinding the con- tract, to stand upon it and require of the vendor its complete performance, or such damages as would be the equivalent of that complete performance. The vendee, acting honestly on his own part, was entitled to the full fruit of his bar- gain, and could not be deprived of it without his consent by the fraud of the vendor. That such an action, proceeding upon an affirmance of the contract as actually made, founded upon actual fraud, and asking damages in the room of an impossible specific performance, can be maintained at law, has been sufficiently adjudged. Wardell v. Fosdick, 13 Johns. (K Y.) 325; 7 Am. Dec. 383; Culver 14 MARKETABLE TITLE TO REAL ESTATE. But, having recovered a judgment for damages in an action for breach of the contract to convey, he cannot afterward bring a sec- ond action or resort to any other means to enforce the contract. 1 If lie elects to rescind he cannot afterwards affirm the contract and vice versa* There can be but one satisfaction of the injury. Under the English common-law system of pleading the pur- chaser's expenses incurred in examining the title could not be recov- ered by him if lie disaffirmed the contract and brought his action to recover back his deposit as such ; it was necessary for him to insert a count in the declaration claiming damages for breach of the con- tract. 3 The reason for this rule was that moneys so paid out could not be regarded as paid out to the vendor's use, but were expended for the purchaser's own satisfaction. Perhaps the same rule would be applied in America in a case in which the pleadings demand only a return of the purchase money and contain no demand for damages. 4 If the purchaser accept a conveyance of the premises, he cannot T. Avery, 7 Wend. (N. T.) 886; 82 Am. Dec. 686; Whitney v. Allaire, 1 Comst. (N. Y.) 305; Clark v. Baird, 9 N. Y. 197; Graves v. Spier, 58 Barb. (X. Y.) 385. And that is so whether the representations relate to the title or to matters col- lateral to the land. The measure of damages in such a case is full indemnity to the injured party; the entire amount of his loss occasioned by the fraud." 1 1 Sudg. Vend. (8th Am. ed.) 857 (236); Onne v. Boughton, 10 Bing. 587; 25 E. C. L. 254; Hopkins v. Lee, 6 Wheat. (U. 8.) 109; Buckmaster v. Grundy, 3 Gil. a.) 626, 638; Hill v. Hobart, 16 Me. 169. 'Schiffer v. Dietz, 83 N. Y. 800, 308, citing Mason v. Bovet, 1 Den. (N. Y.) 69; 43 Am. Dec. 651 ; Cobb v. Hatfield, 46 N. Y. 588; Lawrence v. Daie. 3 Johns Ch. (N. Y.) 23. White v. Harvey, 175 Iowa 213; 157 N. W. 152. Remedies in aftirmanee and remedies in disafh'rniance or iv- i--i'>n of the contract are non-concurrent and inconsistent with each other. Bowen v. Mandeville, 95 N. Y. 240. Sugd. Vend. (8th Am. ed.) 547 (362) ; 1 Chit Oont (10th Am. ed.) 339; Camfteld v. Gillert, 4 Esp. 221. * In the State of New York the cases do not show that this distinction lun l>cen observed. An action there for damages in failing to perform the con- tract to convey a good title seems to be regarded a in effect the same a an action to recover back the purchase money eo nomine, probably U-i auso in sueh an action the damages are, as a general rule, limited to the purchaxc money paid, interest, costs and expciim-a. There can be no question, however, a* to the right to recover the expenses of examining the title as a part of the dam- age*. Higgins v. Eagleton, 34 N. Y. Supp. 225. See post, g 93. The expenses of examining the title may be recovered in an action to recover li.uk the deposit. Kffenheim v. Von Hafen, 23 X. Y. Supp. 348 (N. Y. City Court). ACTION FOTC BTCF.ACTr OF CONTRACT. 15 afterwards maintain an action to recover damages from the vendor for breach of his contract to convey a good title. His remedy is upon the covenants of his deed if any. If there are no covenants, lie is, in the absence of fraud or mistake,. without remedy. 1 If the title fail, the purchaser by bringing an action for damages affirms the contract, and will not be entitled to recover unless he shows that he has performed his part of the contract by tender or payment of the purchase money in full. If the purchase money be not paid in full, he should bring an action for money had and received to his use (trespass on the case in assumpsit), which dis- affirms the agreement. 2 This distinction appears not to be observed in those States in which the common-law system of pleading has been abolished. Thus, in 'New York it has been held that if the vendor be unable to make title at the time fixed for completing the contract, the purchaser is not in default in failing to tender the pur- chase money, and may maintain an action for damages though no such tender has been made. 8 If the parties agree to rescind the contract, and the vendor fails to return the purchase money, the purchaser cannot maintain an action for breach of the contract and recover back his purchase money in the form of damages. He should sue in assumpsit for money had and received to his use, or frame his complaint upon that hypothesis in States in which the common-law system of pleading no longer exists. 4 If no time be fixed by the contract in which the vendor must convey, he will be entitled to a reasonable time, after the payment of the purchase money, in which to execute the conveyance. 5 We will consider 1 Shurtz v. Thomas, 8 Barr (Pa.), 363; Carter v. Beck, 40 Ala. 599. 2 Clarke v. Locke, 11 Humph. (Teun.) 300; Hurst v. Means, 2 Swan (Tenn.), 594. But see 1 Sugd. Vend. (8th Am. ed.) 357 (236) where it is said that " if the purchaser has paid any part of the purchase money " and the seller does not com- plete his engagement, the former may have his action for damages. Humpkey v. Norris, (Ky.) 7 S. W. Rep. 888. 1 Morange v. Morris, 34 Barb. (N. Y.) 311. This proposition, it is conceived, must be strictly limited to those cases in which the contract expressly requires the vendor to remove iucumbrances or other objections to the title before the time fixed for completing the contract, else it will conflict with that eminently just and reasonable rule that the vendor may rely upon the unpaid purchase money as a means with which to discharge incumbrances. Post, 308. 4 Conley v. Doyle, 50 Mo. 234. 5 Eames v. Savage, 14 Mass. 428; Newcomb v. Brackett, 16 Mass. 165. 16 MATCKKTAnT.K TITT.E TO T7EAT, ESTATE. elsewhere under what circumstances the vendor will be allowed time in which to remove obiections to the title. 1 ** In another part of this work it has been attempted to show that wherever the purchaser seeks relief from the obligation of the con- tract, or to assert a liability against the vendor, on the ground that the title is bad, the duty devolves upon him to point out the par- ticulars in which the title is wanting. 2 This rule especially applies in an action for breach of contract to convey a good title. 3 In America actions to recover damages on the ground that the vendor is urable to convey a good title, are comparatively infrequent, while the reports teem with cases in which the purchaser seeks to rescind the contract and recover back his purchase money. The rea-ons for the comparative disuse of the action affirming the (-(in- fract and seeking damages for the breach, doubtless are that prac- tically the same relief is obtained in the action to recover back the purchase money, since, as a general rule, the purchaser could not recover damages in excess of the purchase money ; and in the latter action the purchaser is not obliged to show that he lias fully per- formed the contract on his part by payment of the entire purchase money, 4 nor to show that the title is absolutely bad and not merely doubtful, as he must do where he affirms the contract/' Where. however, the contract provides for liquidated damages in excess of the purchase money, or where by the law of the jurisdiction the purchaser is entitled to recover damages in excess of the purchase money, that is, damages for the loss of his bargain, he may find it to his advantage to bring his action on the contract. 2. DOUBTFUL TITLE IN ACTION FOB DAMAGES. A dis- tinction is to be observed between the action to recover damages for breach of the contract or failure of the title and an action to rtfeoTOT back the purchase money in this re.-pect, namely, that in the former action the plaintiff cannot recover unless he shows that the title is 1 Poat, ch. 32. Po*t, 117, 244, 281. Al.-;i Mark.-t (V v. (n.-h\. 171 ]-Yd. 96; 98 \ 7n. There ure many caws \\lii<-h Mihtain this vn\\. Hut MV \\iNoii v. Holilrn, 16 Abb. 1'r. (X. V.) n.'l. \\lurc it i> int hunted tliai if tin- on him to allow a good title. :iinon v. Blaisdell, 45 Kan-?. 221. 'H;ir>t v. Mean*, 2 Swan (Tenn.), 594. Post, 5 - ACTION FOR BREACH OF CONTRACT. 17 absolutely bad, while in the latter he will be entitled to a return of the purchase money if there be a reasonable doubt about the title. 1 So far as the measure of relief is concerned, the distinction is unim- portant except where, by express contract between the parties or by the law of the jurisdiction, the purchaser would be entitled to recover damages in excess of the purchase money, the general rule being that the purchaser can recover, in the action for damage:-, nothing beyond the purchase money and interest. But in respect to the remedy arid the pleadings the distinction is vitally important ; for if he declares upon the contract and claims damages for the breach, and the evidence shows that the title is merely doubtful, he can recover nothing ; while, if he had counted for money had and received to his use, he would have been entitled to judgment. 3. PURCHASER IN POSSESSION MAY MAINTAIN ACTION, It will be seen hereafter that a purchaser cannot, on failure of the title, disaffirm the contract and recover back the purchase money unless he has been evicted or has surrendered the premises to the vendor. 2 But no such rule applies when he affirms the contract and brings an action to recover damages for the vendor's breach in failing to convey a good title. By affirming the contract he elects to hold himself answerable to the true owner. He is under no obligation to rescind on failure of the title. He may rely on his vendor's agreement to make a good title and take the chances of eviction by an adverse claimant. 3 Hence it has been held that the purchaser's possession of the premises is immaterial and cannot affect his right to maintain his action for damages and to recover substantial and not merely nominal damages. 4 'Ingalls v. Hahn, 47 Hun (X. Y.), 104; Post, 286, "Doubtful Titles at Law." Roberts v. McFadden, (Tex. Civ. App.) 74 S. W. 105, citing the text. Mesa Market Co. v. Crosby, 174 Fed. 96; 98 C. C. A. 70. 2 Post, ch. 25. = 0akes v. Buckley, 49 Wis. 502. 4 Bedell v. Smith, 37 Ala. 619. The reasons for this rule were thus stated by ALLEX, J., in Fletcher v. Button, 6 Barb. (N. Y.) 646, which was an action to recover damages for the vendor's refusal to convey for want of title: "It is insisted that the plaintiff, being in possession of the premises up to the time of the commencement of the action, he can recover but nominal damages; that actual eviction was necessary to entitle him to recover the entire purchase money by way of damages for the non -conveyance. I am unable to discover upon what principle the possession of the premises by the plaintiff can affect his remedy in this action. The contract, for the non- performance of which this action is 3 18 MAKKETABLE TITLE TO REAL ESTATE. 4. DEFENSES TO THE VENDOR'S ACTION FOB, BREACH OF CONTRACT. If the vendor should bring an action to recover dam- ages for breach of the contract, the purchaser may, of course, set up the defense that the plaintiff has no title, 1 or that the title is doubtful, 2 or that the estate is incumbered, 3 or that the plaintiff has made fraudulent representations 4 in respect to the title. Inasmuch as such an action is rarely, if ever, brought in cases in which the contract has been partly performed by delivery of the possession to the purchaser, it seldom happens that the right of the latter to show a want of title in the vendor is complicated with any question brought, Avas for the title to, and not the possession of, the premises. The possession of the premises could not have hern in part performance of such contract; and although it may have been beneficial to the plaintiff, it did not at all mitigate the damage* sii>tained by him by the inability or unwilling- ness of the defendant to convey the premises. .Again, if the defendant had title to the premises and a right to convey them, and has willfully refused to perform his contract, lie has done so in his own wrong, and has voluntarily placed himself in a position in which he may lose the use of the premises for the time during which the plaintiff has occupied them; but he cannot bo ]T- mitted by his own wrongful act to change the character of the possession of the plaintiff and make him a tenant against his will instead of a vendee in possession under a contract of purchase. If the defendant was not the owner, but had the right to occupy, or permit the plaintiff to occupy the pren then having contracted to convey them to the plaintiff and suffered him to go into possession under the contract, although he may have acted under a mis- take, still he must bear the consequences of that mi-take. The plaintiff had a right to suppose that the defendant was familiar with his own title, and had the right to sell what he agreed to convey. If the defendant neither owned the piemi-cs nor had the right to occupy them, or to suffer the plain- tiff to occupy them, then it is very clear that he should not in any manner have the benefit of the possession by the plaintiff. The plaintiff, by his occu- pation, has made himself a trespasser, and is liable to the true owner for the value of such occupation." See, also, Ilayncs v. Farley. 4 Tort. (Ala.) .V2S; Cray v. Mi!!-. S:i Fed. 824. '2 Warvelle Vend. 003; Lewis v. White, 16 Ohio St. 444. . 'Post, ch. 31. 'Gilbert v. Cherry, 51 da. 120. If the pun-baser reject* tin- title on the ground that the property in incum1>crcd. the fact that the seller had perfected an arrangement to -li-cliaiL'' 1 tin in-umbrance out of the pnrc!ia-e money. does not support his action for damage-*, in the- ab-etice .if anvthing to show that tlie purchaser was advised or the arrangement and refund to permit rea-on:iblr *teps to be taken for its consummation. Manitoba Fi-h Co. v. Booth, inn Fed. 304 f(\ C. ,\.K 4 Gilbert v. Clierry. :,7 <:.,. 120. ACTION FOE BREACH OF CONTRACT. 19 as to the restoration of the premises to the plaintiff, or as to diffi- culty in placing him in staiu quo. If, however, such an action should be brought after possession delivered to the purchaser, instead of an action to recover the purchase money or to compel specific performance, it is apprehended that the defense of want of title in the vendor, amounting in substance to an election to rescind the contract, could not be made without surrendering, or offering to surrender, the premises to the plaintiff. The vendor can maintain no action against the purchaser for breach of the contract to purchase, until after the expiration of the time fixed for completing the contract, even though the purchaser has absolutely refused to perform or accept performance of the contract. 1 Until the time arrives when, by the terms of the agree- ment, the vendor is or might be entitled to performance, he can suffer no injury or deprivation w r hich can form a ground of dam- ages. 2 If a purchaser of lands, to be conveyed free of incum- brances, absolutely refuse to take a deed or to accept performance of the contract on grounds other than failure of the title, or the existence of an incumbrance upon the premises, he cannot after- wards, when sued for a breach of the contract, avail himself of defects in the deed which was tendered to him, or of the fact that the property was incumbered. His absolute refusal to perform is a waiver of the right to require performance on the part of the vendor. 3 The vendor will be restrained from bringing an action at law to recover damages for breach of the contract, if his bill for specific performance has been dismissed for want of title, unless dismissed without prejudice to his remedy at law. 4 1 Daniels v. Newton, 114 Mass. 530; 19 Am. Rep. 384, disapproving Frost v. Knight, L. R. 7 Exch. Ill, and Hochster v. De la Tour, 2 E. & B. 678. - Language of WELLS, J., in Daniels v. Newton, supra. "Carpenter v. Holcomb, 105 Mass. 280; Wells v. Day, 124 Mass. 38. In this case the purchaser of three separate and distinct lots of land refused absolutely to complete the contract on grounds which applied only to the first two lots. The vendor resold the third lot at a considerable loss and brought an action against the purchaser for breach of the contract, and it was held that defects in a deed which had been tendered to him, and the existence of a mortgage en the third lot constituted no defense to the action. 4 1 Sugd. Vend. (8th Am. ed.) 356; McNamara v. Arthur, 2 Bal. & Beat. 349. CHAPTER III. IMPLIED AND EXPRESS AGREEMENTS AS TO THE TITLE IMPLIED AGREEMENTS. General Rule. 5. EXPRESS AGREEMENTS. General Principles. 6. Terms and Conditions of Sale. 7. Parol Evidence. Auctioneer's Declarations. 8. English Rules as to Conditions. 9. Agreement to make "Good and Sufficient Deed." 10. Agreement to convey by Quit Claim. 11. Agreement to sell " Bight, Title and Interest." $ 12. Agreement to sell subject to Liens. 13. ). IMPLIED AGREEMENTS General Rule. The purchaser is entitled to require from the vendor, in the absence of any provision in the contract, a good marketable title, free from all defects or incuinbrances. The right to a good title does not grow out of the contract between the parties, but is given by law and i.s implied in every contract of sale. 1 And the rule is general that a contract 1 Dnrt Vend. & Purch. (4th ed.) 104; 1 Sugd. Vend. (8th Am. ed.) 24 '( 456 (298), 510 (337) ; Rawle Cov. for Title (5th ed.), 32: Hall v. Betty, 4 M. & G. 410; Geoghegan v. Connolly, 8 Ir. Ch. 598; Souter v. Drake, 5 B. & Ad. 992; Purvis v. Rayer, 9 Pri. 488; Doe v. Stanion, 1 M. 4 W. 701; Hughes v. Parker, 8 M. & W. 244; Sharland v. Leifchild, 10 Ad. & El. 529; Flinn v. Barber, 04 Ala. 193; Easton v. Montgomery, 90 Cal. 314; 27 Pac. Rep. 281); 25 Am. St. Rep. 123; Krause v. Krause, 58 111. App. 559; Schreek v. Pierce, 3 Clarke (Iowa), 350; Puterhaiigh v. Puterbaugh, (Ind.) 34 X. E. Rep. Oil; Durham v. Hadley, (Kans.) 27 Pac. Rep. 105; Swan v. Drury, 22 Pick. (Mans.) 485; Dwight v. Cutler, 3 Mich. 560; 34 Am. Dec. 105; Murphin v. Scoville, 41 Minn. 262; Drake v. Barton, 18 -Minn. 414 (462): Donlon v. Evans, 40 ^linn. 501; 42 N. W. Rep. 472; New Barbados Toll Bridge Co. v. Vreeland, 3 Green Ch. (X. J.)' 157; Xewark Sav. Inst. v. Jones, 37 X. .1. Eq. 440; Burwell v. Jack won, 9 N. V. 535, 543, a much cited CBHP; Piimeroy v Drury, 14 Barb. (X. Y.) 418; Inness v. Willis, 48 X. Y. Super. Ct. 192; In re Hunter, 1 Ed\r. (N. Y.) 1; Wheeler v. Tracy, 49 X. Y. Super. Ct. 208; Tharin v. Prickling, 2 Rich. (S. C.) 301; Breithaupt v. Thurmond, 3 Rich. (S. C.) 210; Green v. Chandler, 25 Tex. 167; Xelaon v. Matthews, 2 II. & M. (Va.) 104; 3 Am. Dec. 620; Moulton v. Chaffee, 22 Fed. Rep. 26. IMPLIED AXD EXPRESS AGREEMENTS AS TO THE TITLE. 21 for the sale of lands which is silent as to the title or interest to be conveyed, implies an agreement to conyey not only an unineum- bered and indefeasible estate, but such an estate in fee simple, that is, the largest estate that can be had in the premises, 1 though of course it may be shown that a less interest was sold. 2 It has been held that in every contract for the sale of land there is implied, also, an agreement that the title of the vendor shall be fairly deducible of record. 2 * An agreement to sell land which contains no restrictive expres- sions is an agreement to sell the whole of the vendor's estate or .Yeif Cases; Gervaise v. Brookins, 156 Cal.; 103 Pac. 329; Winkler v. Jerrue, 20 Cal. App. 555; 129 Pac. 804; Hixson v. Hovey, 18 Cal. App. 230; 122 Pac. 1097; Malloy v. Foley, 155 Iowa 447, 133 X. W. 778; Smith v. McMahon, 197 Mass. 16, 83 X. E. 9; Justus v. Button, 89 Xeb. 367, 131 X. W. 736; Brisbane v. Sullivan, 83 X. J. Eq. 182, 93 Atl. 705; Behr v. Hurwitz, 90 X. J. Eq. 110, 105 Atl. 486; Walla ch v. Riverside Bank, 206 X. Y. 434, 100 X. E. 50; Curtis Land Co. v. Land Co., 137 Wise. 341, 118 X. W. 853, 129 Am. St. Rep. 1068. The vendor in an executory contract for the sale of lands, in the absence of express statements to the contrary, represents and warrants that he is the owner of the property which he assumes to sell, and that he has a good title thereto. Innes v. Willis, 16 Jones & S. (X. Y.) 188. In Owings v. Thompson, 3 Scam. (111.) 502, the broad rule is laid down that, in the absence of any express contract as to what kind of title a purchaser in any case is to receive, he must take the title at his own risk; in other words, that there is no implied contract that the title shall be indefeasible. And such, the court adds, is the rule in England and in most of the American States. It is submitted with deference that such is not the rule either in England or in America (see authorities, ante, this note), except in the case of judicial and ministerial sales, and that the rule announced in this case in which the purchase was made at a judicial sale, should have been limited to sales of that kind, as indicated in the qualified concurrence by TREAT, J., in the opinion of the court. See post, " Caveat Emptor," ch. 5. 1 Cases cited in last note. Hughes v. Parker, 8 M. & W. 244; Cattell v. Corrall, 4 Yo. & C. 228; Burns v. Witter, 56 Oreg. 368, 108 Pac. 129; Ginther v. Townsend, 114 Md. 122, 78 Atl. 908; Elkins v. Seigler, 154 N. C. 374, 70 S. E. 636. 2 Cowley v. Watts, 17 Jur. 172; Cox v. Middleton, 2 Dru. 217. 2 a Cabrera v. Payne, 10 Cal. App. 103 Pac. 176; Reed v. Sefton, 11 Cal. App. 88, 103 Pac. 1095; Title Doc. Co. v. Kerrigan, 150 Cal. 289, 88 Pac. 356, 8 L. R. A. (X. S.) 682. See post, 289 as to express agreements in respect to the title. 22 MARKETABLE TITLE TO EEAL ESTATE. interest therein. 3 It will be presumed that the estate sold was to be accompanied by all of its legal incidents, 4 such as a right of way, 5 and that which springs from the rule cujus est solum ejus est usque ad ccelum* or the right to the undisturbed enjoyment of the space above or the ground below the surface of the area of the estate. But the implication that the purchaser was to receive a title free from incumbrance may be rebutted by showing that he had notice of the existence of the incumbrance. 7 If the sale is made subject to a specified incumbrance, there is an implied warranty that there are no other incumbrances on the property. 7 * If the vendor agree to convey by quit claim deed he merely con- tracts to sell such interest as he then has, and cannot be required to convey an interest subsequently acquired. 8 But the fact that he agrees to convey by quit claim does not affect the right of the purchaser to rescind on the ground of defects in the title. 8 * The sale of a lease implies a contract on the part of the seller that he will show a good title in the landlord. 9 A contract, how- ever, to sell an agreement for a lease, does not imply a title in the lessor to make the lease, and an action on the contract by the seller 1 Sugd. Vend. (8th Am. ed.) 24 (16) ; Bower v. Cooper, 2 Ha. 408. 4 Skull v. Clenister, 16 C. B. (X. S.) 81; 33 L. J. C. P. 135. Langford v. Selmes, 3 K. & Jo. 220; Denne v. Light, 3 Jur. (X. S.) 627; Stanton v. Tattersall, 1 Sm. & G. 529, where the purchaser was relieved for want of proper access to a house. Lewis v. Braithwaite, 2 B. & Ad. 437; Keyea v. Powell, 2 El. & Bl. 132; Sparrow v. Oxford R. Co., 2 DeO., M. & O. 108; Pope v. Garland, 4 Y. & C. 403; Whittington v. Corder, 16 Jur. 1034, where there was a failure of title to an underground cellar. 1 Newark Sav. Inst. v. Jones, 37 N. J. Eq. 449. 'MrPhrrson v. Kissee, 239 Mo. 664; 144 S. W. 410; Smiddy v. Grafton, 163 Cal. 16, 124 Pac. 433, Ann. Cas., 19.13 K. 921. Post, fi 218. Woodcock v. Hennet, 1 Cow. (X. Y.) 711; 13 Am. Dec. 568. Wallach v. Kiv.-r-ide Bank, 206 N. Y. 434, 100 N. E. 50. 1 Sugd, Vend. 368; Tweed v. Mills, L. R., 1 C. P. 39; Purvi- v. Haver, 9 Pri. 488; Gaston v. Frankum, 2 De G. & Sm. 561; Clive v. Beaumont, 1 DC G. & Sm. 397; Hall v. Betty, 4 Mann. & G. 410; Soutcr v Drake, 5 B. A Ad. 992; Drake v. Shiels, 7 N. Y. Supp. 209; Burwell v. Jackson, 9 X. Y. 539. IMPLIED AND EXPRESS AGREEMENTS AS TO THE TITLE. 23 cannot be defended on the ground that the lessor had no title. 2 Nor in an assignment of an executory contract for the sale of lands, is there any implication of good title in the original vendor. 3 Nor is there any such implied warranty in the assignment of a land-office certificate. 4 Inasmuch as a contract to convey a clear title is implied in the sale of lands, an agent of the vendor does not exceed his authority by inserting such a provision in a written contract of sale. 5 If it appear that the premises were sold at a fair price, the presumption would be that the contract entitled the purchaser to an indefeasible title. If, on the other hand, the price was merely nominal, the reasonable presumption would be that the purchaser could require from the vendor no more than a quit claim, or release of his rights, and that he had agreed to take the title such as it might be. The legal implication of an agreement on the part of the vendor that the title he is to convey shall be clear, unincumbered and inde- feasible, is to be limited strictly to cases in which the vendor sells in his own right. Where the sale is made in a ministerial, repre- sentative or official capacity the conclusive presumption of law is that the vendor sells merely such interest as may happen to be vested in him, be the same defeasible or indefeasible. The maxim caveat emptor applies, and the purchaser can neither rescind the contract nor maintain an action for damages if the title turns out to be defective. This class of cases is considered at some length hereafter. 6 If the vendor fails or is unable to convey at the time fixed for the completion of the contract such a title as the pur- chaser may demand, there is a breach of the contract of sale, and the latter may, if time was of the essence of the contract, have his action for damages, unless the title is merely doubtful and 2 Kintrea v. Preston, 1 H. & N. 357. 8 Thomas v. Bartow, 48 N. Y. 193. 4 Johnston v. Houghton, 19 Ind. 309. 'Keirn v. Lindley, (N. J. Eq.) 30 Atl. Rep. 1063. 6 Post, ch. 5, " Caveat Emptor." 24 MARKETABLE TITLE TO REAL ESTATE. not absolutely bad. In that case, as we have seen, he may rescind the contract and recover back his deposit, but is not entitled to damages. 1 6. EXPRESS AGREEMENTS. General Principles. Upon the sale of real property it is customary for the parties to enter into a written contract containing their names, a description of the property, the quantity of the estate sold, such as a fee simple or life estate, and the terms or conditions of the sale, and fixing a time when the contract shall be fully executed by payment of the purchase money and a conveyance to the purchaser. 2 The con- tract also usually specifies the kind of title the purchaser is to receive, and sometimes it is in the form of a sealed obligation under penalty on the part of the vendor to convey a good title, in which case the instrument is known as a " title bond." The contract usually also provides, especially when the sale is made at public auction, that the purchaser shall have a specified time within which to examine the title, and that if the title should prove bad or unsatisfactory, the earnest money shall be refunded. 4 If the purchaser contract for a title deducible of record, he can- not be compelled to accept a title resting altogether upon matters 'Ante, $ 2. ' Warvelle Vend. eh. III. Special agreements as to title, post 288. Vardaman v. Lawson, 17 Tex. 16. The court said in this case that a bond for title is an instrument which evidences a contract for the sale of land, and is substantially an agreement by the vendor to make to the vendee a title to the tend described. It seems scarcely necessary to say that many of the decisions used in the following pages as illustrations of the rules of law governing express contracts with respect to the title were not rendered in actions by the purchaser for breach of the contract of sale. The principles are the same whether the action be by or against the purchaser in affirmance or rmciuion of the contract. In each of these caves the rights of the purchaser are, of course, governed by the express terms of the contract, and no incon- venience, it is apprehended, can result from considering the cases founded on express contracts under the head of affirmance of the contract and action for breach, without regard to the nature of the proceedings in which the decisions were made. 4 1 Warvell Vend. 327. In Smith v. Schiele, 03 C'al. 150, the question was raised whether an agent was competent to make the agreement, " title to prove good or no sale," but was not decided. IMPLIED AXD EXl'KESS AGREEMENTS AS TO THE TITLE. 25 77i pais, 1 such, for example, as a title by adverse possession. 2 A stipulation in a contract of sale that the vendor shall furnish an abstract showing title to the property has been said to be equiva- lent to an agreement that the purchaser shall receive a good title of record. 3 It has been held that an agreement to furnish a satis- J Page v. Greeley, 75 111. 400; Noyes v. Johnson, 139 Mass. 436. "Post, 292. 3 2 Warvelle Vend. 764. Cabrera v. Payne, 10 Cal. App. 675, 103 Pac. 176. Hooe v. Callahan, 10 Cal. App. 567, 103 Pac. 175. See upon this point 2 Sugd. Vend. (8th Am. ed.) 27 (427). In Smith v. Taylor, 82 Cal. 533, th c ontract contained the following provision : " The title to said above lands to prove good or no sale, five days being allowed to examine abstract or certificate, and pass upon title after abstract or certificate is delivered." The court, after observing that this was not simply a contract to make good title, continued: "The only fair interpretation of this contract is that he (the vendor) was to furnish an abstract of title a paper prepared by a skilled searcher of records, which should show an abstract of whatever appeared on the public records of the county affecting the tile and that the abstract must show good title, or there was no sale * * *. Under that contract the plaintiff (purchaser) was not bound to make any investigation outside the abstract, or to take the chances of any litigation which the abstract showed to be either pending or probable." In Boas v. Farrington, 85 Cal. 535, the provision of the contract was: " Title to be good or the money to be refunded, party of the first part (vendor) to furnish an abstract of the title to said land." The abstract furnished did not show a good title, and in an action by the purchaser to recover his deposit, judgment was rendered in his favor though the court below found that as a matter of fact the vendor had a good title. This judgment was affirmed on appeal, the court saying: "The appellant contends that the contract did not require him to furnish an abstract showing a good title, or at most that he was not bound to furnish it at the time the defective one was furnished, or at any time before the time for the final payment of the purchase money, and that as it appeared at the trial that he had a good title to the property he was entitled to judgment. We cannot so construe the contract * * * certainly when the abstract was furnished, the purchaser had the right to act upon it, and as it failed to show a good title in the vendor, the vendee was not bound to lay out of the use of his money, and pay the whole balance of the purchase money before he could recover back any part of what he had paid. If the vendor had a good title, as the court below found he had, he should have furnished an abstract showing it, and upon it being called to his atten- tion, either by the demand for a rescission or otherwise, that it was defective, he should have at once caused a perfect abstract to be furnished. He did neither, and in his answer stands by the abstract furnished by him, and 4 26 MARKETABLE TITLE TO BEAL ESTATE. factory abstract of title referred only to the fullness or complete- ness of the abstract, and not to the quality of the vendor's title. 1 But in some of the States the rule is that an agreement to convey a fee simple title clear of all incumbrances by warranty deed and abstract of title, entitles the purchaser to rescind if the abstract does not show a good title. 1 * If the vendor agrees to furnish an abstract showing a clear title, and the abstract furnished shows a defective title, the vendor can- not avoid a rescission on the part of the purchaser, with proof that adverse claims appearing from the abstract are in fact groundless. In such a case it has been held that the purchaser may rescind, notwithstanding the sufficiency of the title. 2 It has been held, however, that if a contract provide for an abstract showing title, and the abstract furnished did not show title, it might be supple- mented by written evidences of title. 8 asserts that it was a good one. If the abstract was a good one it shows that his title waa bad. It is too late now for him to assert that he was not bound to furnish an abstract at all, or that he was not bound to furnish it at the time he did." As to when the purchaser may be compelled to accept a title resting upon adverse possession, see post, 292. The vendor's title cannot be deduced from the record in a case in which the public records have been totally destroyed by fire. Certified copies put upon record cannot take the place of the destroyed records. Crim v. Ubscn, 155 Cal. 697, 103 Pac. 178, 132 Am. St. Rep. 127. 1 Fitch v. Wollanl, 73 111. 92. In England it is said that an agreement to furnish a " perfect abstract " means a complete abstract, that is, the best that the vendor can furnish though the title itself be defective. Dart. Vend. (5th ed.) 126, citing Hobson v. Bell, 2 Beav. 17; Morley v. Cook, 2 Ha. 111. But see Oilman v. Kichler, 265 111. 579, 107 X. E. 180, where held that a contract to convey by warranty deed a fee simple title, clear of all incumbrances, and to deliver a " good merchantable abstract of title," requires the vendor to deliver, not merely a merchantable abstract, but an abstract showing a merchantable title. 'Post, | 288. Austin v. Shiptnan, 160 Mo. App. 206, 141 S. W. 425. ' Smith v. Taylor, 82 Cal. 538: see extracts from this case, supra. Taylor v. Williams, 2 Colo. App. S.-itt. 31 Pac. Rep. 505. ' Welch v. Dutton, 79 111. 4i.-|. IMPLIED AND EXPRESS AGREEMENTS AS TO THE TITLE. 27 The vendor, insisting upon a forfeiture of the purchaser's deposit, will be held to a strict performance of his contract to furnish an abstract showing a perfect title to the property. 31 A contract to convey with full covenants of warranty obligates the vendor to convey free of incumbrances. 3b Where the written contract between the parties requires the vendor to convey a title free from defects, parol evidence is inad- missible to show a contemporaneous agreement that the purchaser was to take the title such as it was. 3c 7. Terms and conditions of sale. In the American practice there seems to be nothing so elaborate as the English " particulars and conditions of sale," or "common conditions," as they are sometimes called. 4 Auction sales of real estate are, with us, usually preceded by a newspaper advertisement or "hand bill" containing a description of the property and the terms and con- ditions of the sale, 5 and these are frequently supplemented, so far as the title is concerned, by the verbal declarations of the auctioneer at the time of the sale. 6 8. Parol evidence Auctioneer's declarations. Whenever specific performance of a contract of sale is sought in equity, parol evidence of declarations by the auctioneer before the sale, adding to or altering the terms of the sale, is admissible on behalf of the defendant, whether vendor or purchaser. 7 In this particular the law is the same in America as in England. 8 "a Wright v. Bolt, (Tex. Civ. App.) 16 S. W. 360. "b Tague v. McColm, 145 Iowa 179, 123 N. W. 960. "c McCulloch v. Bauer, 24 N. D. 109, 139 N. W. 318. 4 Post, this chapter. "See King v. Knapp, 59 X. Y. 462. Averett v. LipsconAe, 76 Va. 404, affords an illustration of this common practice. T Averett v. Lipscombe, 76 Va. 404. 'Post, 9. 28 MARKETABLE TITLE TO REAL ESTATE. 9. English rules respecting contracts as to the title. Much of the learning that is found in the English treatises on the law of vendor and purchaser will be found inapplicable in America, owing to the diversity between the rules and practice of convey- ancing in the two countries. At the same time much that is to be found there would seem to be applicable here, especially the gen- eral rules restricting or enlarging the liabilities and rights of the parties with respect to the title to be conveyed or acquired under the express terms of the contract of sale. 1 1 In England a highly artificial system of conveyancing prevails, a fact due to the intricaicies of landed settlements, and to the obscurity in -which, from the want of a general registration law, title to real estate is there involved. A glance at the pages of Dart or Sugden, the principal Eug'ish treatises on the law of vendor and purchaser, will suffice to show the wide difference which exists between the English and American practice in respect to the formalities and preliminaries attending the execution of a contract for the sale of lands. In America, where land in some sections changes owners with almost the rapidity of personal property, the contract, particularly in rural districts, is usually drawn by the parties themselves, and consequently often abounds with loose and ambiguous expressions, or contains technical terms to \\ liidi the law gives a force and effect different perhaps from that which was intended by the parties. Even in the lar-e cities the terms and conditions upon which real property is sold are usually brief and simple. In England, however, transfers of landed property. especially <>f the fee simple, are com paratively rare occurrences, and, it would seem, are seldom or never undertaken without the advice and assistance of a skilled conveyancer. The " particulars and conditions of the sale," as they are c:dl'd. are can-fully prepared and circulated before the sale, and incorporated in the cont met when the sale is made; and as a general rule they set forth explicitly the character of title which the vendor will undertake to convey. The same degne of care and precaution is exercised in the case of private sales. If the vendor intends to sell only such interest as he has, IK; what it may, the technical expression employed is. " that he shall not be required to produce a title." appar- ently a figure of speech, meaninir tliat the vendor shall not be required to fur- nish an abstract, or to produce deeds, affidavits, pedi -Trees or oilier document* showing a marketable title in himself. In the absence of a gem-mi registry of derds and incumbrances. the purchaser can have, of course, no opportunity to judge of the sufficiency of the vendor's title, unless the instruments by which it is evidenced an; pnxluced, and to take a title without the exhibition of such evi deuces necessarily means to take just such title an the vendor has. Perhaps the most important point to be considered in determining the application of English decisions, in American ca-es. affecting the rights of the parties with respect to the title, as dependent on the express terms of their contract, is the fact that in England tin- purchaser can only require covenants against defects of title arising from the acts of the vendor himself, while in America, except in a few of the IMPLIED AXD EXPRESS AGREEMENTS AS TO THE TITLE. 29 " Particulars " or " conditions " of the intended sale are prepared by the vendor's counsel and circulated in the auction room before the sale as well as announced bj the auctioneer at the time of sale. 1 These, it is presumed, while much more elaborate, correspond to some extent with the " hand bill " or " advertisement " commonly employed in America, containing a description of the property and terms of the sale, and any other matter to which the attention of prospective buyers is to be called. If the sale is by private con- tract, the same rules apply as in the case of ordinary conditions of sale by auction. 2 The particulars usually give a description of States, the rule is that the purchaser may demand a conveyance with gen- eral covenants, that is, against the acts of all persons whomsoever, no matter how far back in the chain of title. As the intention of the parties must govern in the construction of the contract, and as that intention must be largely affected by the extent of the rights which they acquire or lose by the terms of the contract, it is obvious that the difference is one of vital importance, and should constantly be borne in mind. Of course the purchaser may in America, as iti England, agree to take the title of the vendor such as it is, good or bad, and language sufficiently evidencing such an agreement in England may have the same effect in America. But it by no means follows that language which in England would require the purchaser to take such title as the vendor had, would in all cases in America be followed by the same consequences, and deprive the purchaser of his right to maintain or defend an action for breach of contract, on the ground of inability of the vendor to convey a marketable title, or to require covenants adequate for his protection. For these reasons it has been deemed best to separate in the following pages the English rules respecting contracts in relation to the title from the American doctrine, except in those cases where the rules in question have been approved or adopted by the American courts. 1 ''The conditions of the sale should be printed and circulated some time pre- viously to the sale or at any rate in the auction room, so as to give each person an opportunity of ascertaining the terms on which the property is sold. The sys- tem which is adopted by some of the provincial law societies of having printed common form conditions, which are used on every sale, and to which are prefixed the special conditions under which the particular property is sold, has much to recommend it; the effect of the common form conditions is well understood, and the attention of the purchaser and his solicitor is at once directed to the special restrictive conditions. The practice, which still prevails in some parts of the country, of having written conditions which are merely produced and read over, but not circulated in the auction room, cannot be too strongly reprobated; and, if the purchaser is thereby misled or not fully informed on a material point, may result in the rescission of the contract." Dart V. & P. (oth ed.) 124, citing Tor- ranee v. Bolton, L. R., 14 Eq. 134; 8 Ch. App. 118. 'Rhodes v. Ibbetson, 4 De G.. M. & G. 787; Bulkley v. Hope, 1 Jur. (X. S.) 864. 30 MARKETABLE TITLE TO REAL ESTATE. the property and the nature and extent of the vendor's interest. The conditions state the terms on which the property is sold, including the undertakings of the vendor with respect to the title. 1 When the sale is made the auctioneer usually indorses the agree- ment on a copy of the particulars and conditions, thereby embody- ing them in the contract of sale. 2 Every condition intended to relieve the vendor from \\isjyrima faci liability to deduce a marketable title and verify the abstract by proper evidence at his own expense must be expressed in plain and unambiguous language. 4 The purchaser, however, will be bound by a clear stipulation as to the title ; 5 for example, an agreement by assignees in bankruptcy to sell the estate of the bankrupt " under such title as he recently held the same, an abstract of which may be seen;" 6 or that the purchaser should only have the receipt and conveyance of an equitable mortgagee and his assignees ; 7 an agree- ment by the vendors that they should convey only " such title as they had received from A.; " 8 that the purchaser should accept the vendor's title " without dispute ; " 9 that he should accept " such 1 Dart V. & P. (5th ed.) 114. In Torrance v. Bolton, L. R., 14 Eq. 180, it appeared that the particulars erroneously described the quantity of the vendor's estate, .but that the conditions contained a correct description. It also appeared that the conditions were read by the auctioneer nt the sale, but it did not appear that they had been distributed among the bystanders. The purchaser was allowed to rescind. * Dart V. & P. (5th ed.) 114. Where the auctioneer read from an altered copy the particulars and conditions, but inadvertently signed an agreement on an unal- tered copy, it was held that the purchaser was bound, though it did not appear that he had heard the auctioneer read the altered copy. Manser v. Buck, G Ha. 443. Sugd. 17; Dart. V. & P. (5th ed.) 109; Rawlc Cov. 82; Souter v. Drake, 5 B. & A. 992; Doc v. Stanion. 1 M. & W. 695; Hall v. Betty, 4 Mann. & G. 410; Worthington v. Warrington, 5 C. B. 630. 4 Drysdale v. Mace, 2 8m. & Gift*. 225; Symons v. James, 1 Y. & C. (C. C.) 490; Osborne v. Harvey, 7 Jur. 229; Clark v. Faux, 8 Huss. 820; Morris v. Kearsley, 2 Y. & C. 189; Waddell v. Wolfe, L. R.. 9 Q. B. 515; Blake v. Phinn. 8 C. B. 976; Madcly v. Booth, 9 De G. & 8. 718; Webb v. Kirby. 7 De G., M. & G. 376; Edwards v. Wickwar, L. R., 1 Eq. 68; Jackson v. Whitchcad, 2H Beav. 154. Beaton v. Mapp, 2 Coll. 556; Forster v. Hoggart, 15 Q. B. 155; Worthington T. Warrington. 5 C. B. 686; Lethbridge v. Kirkman, 2 Jur. (N. 8.) 372. ' Frcmc v. Wright, 4 Madd. 864. 1 Groom v. Booth, 1 Dre. 548. Wilmot v. Wilkinson, 6 B. A C. 506; Ashworth v. Mounscy, 9 Exch. 176. Duke v. Bamett, 2 Coll. 337; Molloy v. Sterne, 1 Dru. & Wai. 585. IMPLIED AND EXPRESS AGREEMENTS AS TO THE TITLE. 31 title as the vendor has." l So where the agreement provided that the title should " not be inquired into." * So, also, where the defect of title was clearly stated in the conditions of sale. 3 It seems, however, to be by no means clear that in England a con- dition of sale that the vendor should not be required to produce a title, will prevent the purchaser from showing aliunde that the title is bad. There have been, apparently, conflicting decisions upon the point. 4 But while the purchaser will be bound by a clear stipulation in the conditions of sale respecting the title, the vendor will be strictly held to any representations he has made regarding the title. 5 And 1 Keyse v. Heydon, 20 L. T. 244; Tweed v. Mills, L. R., 1 C. P. 39. . s Hume v. Bentley, 5 De G. & S. 520. Compare Darlington v. Hamilton, Kay, 550, and Waddell v. Wolfe, L. R., 9 Q. B. 515. 3 Nichols v. Corbett, 3 De G., J. & 8. 18. 4 In Spratt v. Jeffery, 5 Mann. & Ry. 188; 10 B. & C. 249, the agreement was in the following words: "And the said (purchaser) doth hereby agree to accept a proper assignment of the said two leases and premises, as above described, with- out requiring the lessor's title." BAYLEY, J., for the court, said that "the fair and reasonable construction of those words is the purchaser shall not be at liberty to raise any objection to the lessor's title." In Shepherd v. Keatley, 1 Crompt., M. & R. 117, the agreement was " that the vendors should deliver an abstract of the lease, and of the subsequent title under which the leasehold lots are held, but should not be obliged to produce the lessors title." In this case the language italicised was held distinguishable from that in Spratt v. Jeffery, supra, and that it did not preclude the purchaser from taking any objections to the title which he might discover. These cases are apparently in conflict, but have been held reconcilable in Duke v. Barnett, 2 Coll. 337. Sugden says that Spratt v. Jeffery would prob- ably not now be followed. Sugd. Vend. (8th Am. ed.) 26. See, also, Fry Sp. Perf. (3d Am. ed.) 614, where that case is said to have been overruled. In Hume v. Pocock, L. R., 1 Eq. 428, Sir JOHN STUART, V. C., said: " There is no doubt that in contracts for the sale and purchase of property the terms of the contract must be clear, in order that the court may see how far the subject-matter of the purchase can be given by the party who contracts to sell to him who contracts to buy. But the owner of a disputed title may make a valid contract for the sale of that' title, such as it may be. No doubt, with reference to the terms of a contract, it is implied that the purchaser is to have an indefeasible title; and although the ven- dor may have entered into a contract that he shall not be bound to produce a title, yet the terms of the contract may be such that if it appears aliunde that he has no title, and can, therefore, give the purchaser nothing, the court, in such a case, would not make a decree for specific performance. The meaning of specific per- formance is that there shall be conveyed what the vendor has contracted to sell to the purchaser." 6 Sugd. 17; Forster v. Hoggart, 15 Q. B. 155; Hume v. Bentley, 5 De Q. & Sm. 520; Hoy v. Smythies, 22 Beav. 510; Nott v. Ricard, 22 Beav. 307. 32 MARKETABLE TITLE TO REAL ESTATE. if there be any reasonable doubt or misapprehension as to the mean- ing of the particular and conditions, they will be construed in favor of the purchaser. 1 It seems, also, that any undertaking on the part of the vendor with respect to the title will, as a general rule, be strictly construed in favor of the purchaser. 2 Inde]>endently of any express stipulation in the particulars and conditions, there may be special circumstances showing that the vendors title was not to be called for, and that the purchaser was to take the title such as it was. 3 But if the contract stipulate that the vendor shall deduce and make a good title, he must do so, although the purchaser be aware of objections to the title. 4 Charges upon the estate, or restrictions upon the purchaser's right of absolute enjoyment, the release of which cannot be procured by the vendors, or which do not fairly admit of compensation, 5 or of which the purchaser has no notice, 8 should be stated in the particulars of sale, otherwise the purchaser may, in many cases, avoid the sale. 7 If the attention of the purchaser be drawn to objectionable con- ditions of sale, he may be bound by them if he makes his bid without objection. 1 * 1 Dart V. & P. (5th ed.) 109; Taylor v. Miirtinckle, 1 Y. & C. (C. C.) 661; Symons v. James, Id. 490; Beaton v. Mapp, 2 Coll. C. C. 562; Nouuille v. Flight. 7 Beav. 521; Smith v. Ellis, 14 Jur. 082; Graves v. Wilson. 25 Boav. 200; BruinlH v. Morton. 8 Jur. (N. S.) 1198; Jacksou v. Whitehead, 28 Beav. 154; Swaisland v. Dcarslcy. 29 Beav. 480. * Dart V. & P. (5th ed.) 110; Dawes v. Belts, 12 Jur. 412. Dart V. & P. (5th ed.) 151; Richardson v. Eyton, 2 I)e O., M. & O. 79; Godson v. Turner, 15 Beav. 46. 4 1 Sugd. Vend. 887; Burnett v. Wheeler, 7 M. & W. 364. Sugd. 5, 6. 311, 812; Dart. V. & P. (5th ed.) 116. 117; Torrnnce v. Bolton. L. R., 14 Eq. 124; 8 Ch. App. 118. See " CoinjKJusation for Defects." ]*>*1, g 825. Hall v. Smith. 14 Yea. 428; Pope v. Garland, 4 Y. & C. 894; Patterson v Long. 6 Beav. 590; Lewis v. Bond, 18 Beav. 85. 'Tumor v. Bcaurnin. Sugd. 812; Biirwell v. Brown, 1 Jac. & W. 72; Son n tun r. Vawdre j, 16 Ves, 390; Uain*d-n v. Hirst, 6 W. R. 349; Shackleton v. SutclifTe. 1 De G. & 9m. 0; Coverly v. liurraU. Sug. 27; Ballard v. Way. 1 M. & W. Dart V. ft P. 110. Thus, when the conditions were " catching " or decep- tive, and the purchaser inquired whether a good marketable title could be mnde, and th- vendor 1 * ngrnUi refused to innort any auch statement in the contract, but declared that a good title could be made under the existing conditions, the IMPLIED AXD EXPRESS AGREEMENTS AS TO THE TITLE. 33 A stipulation that the sale shall be void if the purchaser does not pay the purchase money, or if the vendor cannot make a good title, at a specified time, will not justify either party in arbitrarily defeat- ing the sale by declaring that he cannot pay the purchase money in the one case or make the title in the other at the appointed time. Either party, upon the default of the other, may avoid the sale, but cannot elect to avoid it by merely declaring his inability to perform the contract. 1 Yerbal declarations by the auctioneer, at the time of sale, will not, as a general rule, be admitted for the purpose of contradicting, explaining or adding to the particulars and conditions of the sale. 2 But, while such declarations are inadmissible at law on behalf of purchaser was required to take the title. Hyde v. Dallaway, 6 Jur. 119; 4 Beav. 606. 1 1 Sugd. 23; Roberts v. Wyatt, 2 Taunt. 268; Rippingall v. Lloyd, 2 Nev. & Man. 410; Page v. Adam, 4 Beav. 269; Malms v. Freeman, 4 Bing. N. C. 395; Wilson v. Carey, 10 M. & W. 641. The following observations by Mr. Dart, on the utility of unusual conditions of sale, may be of use in those localities where it is the custom to pay particular attention to conditions respecting the title: Lastly, it may be remarked that those conditions which to an unprofessional eye appear the simplest, are often the most dangerous, and those which appear difficult and complex to the unlearned purchaser may not unfrequently produce nn impression favorable to the title upon the mind of his legal adviser. The con- veyancer who, upon the purchase of a large estate, peruses a series of special stipulations, which have evidently been framed with reference to points which might be made matters of serious annoyance by litigious, but are of little practical importance to the willing purchaser, is naturally disposed to believe that no real difficulties exist where minor objections have been so carefully antici- pated; and, on the other hand, nothing is more common than to see conditions whose concise simplicity disarms the suspicion of the unprofessional reader, but whose sweeping clauses reduce counsel to the dilemma of either advising a client to' complete, under serious uncertainty, whether he will acquire even a tolerably safe holding title, or of involving him in inquiries which are almost sure to be heavily expensive, and may probably prove wholly unsatisfactory. The writer may also be allowed to add, as the result of a somewhat wide experience, that, in his opinion, the number of seriously defective and dangerous titles, which, at the present day, are brought into market and passed off upon purchasers under the cover of special conditions of sale, is much larger than is commonly supposed." Dart V. & P. (5th ed.) 176. 2 Sugd. Vend. 15, where such declarations are referred to as the "babble of the auction room." Dart V. & P. (5th ed.) 110; 1 Jac. & W. 639; Higginson v. Clowes, 15 Ves. 521 ; Manser v. Back, 6 Ha. 443; Goss v. Lord Nugent, 5 B. & A. 58; 2 K & M. 28; Vandever v. Baker, 13 Pa. St. i21. 5 34 MARKETABLE TITLE TO REAL ESTATE. either plaintiff or defendant, 1 they will in equity be admitted in favor of the purchaser when sued for specific performance. 2 Parol evidence of declarations at the time of sale is inadmissible in equity in favor of the vendor-plaintiff, even though the purchaser expressly agreed to abide by the declarations. 8 Nor can the purchaser avail himself of such evidence as plaintiff in equity. 4 If statements be made at the sale varying from the particulars and conditions, the purchaser should require them to be put in writing, so as to preserve his rights as plaintiff in equity. 5 Personal information given to the purchaser as to incumbrances on the estate, or even declarations by the auctioneer on such points, may be given in evidence, either by the vendor or the purchaser, as a defense in a suit for specific performance, but, as a general rule, has been held inadmissible on behalf of the plaintiff. 6 If there is a discrepancy between the particulars of sale and an instrument of title to which they refer, and the instrument be the nn>re favorable to the purchaser, the vendor will be bound by the instrument and must show a title in conformity thereto. 7 10. Agreements to make "good and sufficient deed." Inasmuch as the law implies a contract that the purchaser shall receive a good title to the land, free from all defects, charges and incumbrances, it would seem unnecessary that the purchaser should insert in the contract any provision assuring him such a title. Indeed, the anxiety of the purchaser to protect himself by such a precaution appears sometimes to have resulted in disaster, for there have been several decisions that an agreement to give a sufficient warranty deed referred only to the sufficiency of the instru- 1 Gunnis v. Erhart, 1 H. Bl. 289; Ford v. Yates, 2 Mann. & G. 649; Eden v. Blake, 13 M. & W. 614; Greaves v. Ashlin, 3 Camp. 426; Powell v. Edmunds, 12 East, 6. 8ugd. 15; Dart V. & P. (5th ed.) Ill; Swaisland v. Dearsley. 29 Bcav. 430. The same rules apply between original purchaser and Bub-purchaser. Dart. Id.; Khclton v. Livius, 2 Cr. & J. 411. The rule stated in the text baa been applied in America. Soe Averett v. Lipscombc, 76 Va. 409. 'Higginson v. Clowes, 15 Ves. 521; Clowes v. lligginaon, 1 Ves. fc B. 524; Fife v Clayton, 1 C. P. C. N. R. 852; but see Swaisland v. Dearsley, .>/,/. 8ugd. Vend. 15. Dart V. &P. (5th ed.) 111. Sugd. Vend. 15; Dart V. & P. (5th ed.) 112; 15 Ves. 528: 1 V. s. & H. 524. 'Dart V. &P. (5th i-d.) l-.'u IMPLIED A^TD EXPRESS AGREEMENTS AS TO THE TITLE. 35 ment tendered by the vendor, and that the contract was satisfied if the instrument was suificient as a conveyance, though the vendor's title was bad. 1 Unless the facts clearly showed that the parties were contracting especially with reference to known 1 Brown v. Covilland, 6 Cal. 566. In this case it was said that if the con- tract had called for a good and sufficient warranty deed, instead of a good and sufficient deed merely, the vendors would have been compelled to convey a clear title, and not merely such title as they had, whatever it might be, to fhe purchaser; citing Tinny v. Ashley, infra. See, also, Green v. Covilland, 10 Cal. 322; 70 Am. Dec. 725. Haynes v. White, 55 Cal. 38, seems to be at variance with these cases. Tinney v. Ashley, 15 Pick. (Mass.) 552; 26 Am. Dec. .620. Gazley v. Price, 16 Johns. (N. Y.) 267; Parker v. Parmele, 20 Johns. (N. Y.) 132; 11 Am. Dec. 253. Barrow v. Bispham, 6 Halst. (N\ J.) 110. Gregory v. Keenan, 256 Fed. 949. A provision that the vendor shall convey " by a good and sufficient warranty deed in the usual form " does not require that the vendor's title shall be deducible of record. Mesa Market Co. v. Crosby, 174 Fed. 96, 18 C. C. A. 70. In Hill v. Hobart, 16 Me. 164, a distinction ia drawn between an agreement to make a deed, or a deed described, and an agreement " to make a good and sufficient deed to convey the title " to the premises. In the first case it is said that the contract is performed by giving such a deed or conveyance as the contract describes, however defective the title may be. See, also, Tobin v. Bell, 61 Ala. 125. STRAHAW, J., in Thompson v. Hawley, 14 Oreg. 199 : " It seems to me that the more reasonable rule is that where the terms of the contract are such as to bind the grantor to convey by good and sufficient deed, or to make a good and sufficient conveyance, he can only perform his agreement by making a deed that will pass a good title. But if it clearly appears from the contract itself, or from the circumstances accompanying it, that the parties had in view merely such conveyance as will pass the title which the vendor had, whether defective or not, that is all the vendee can claim or insist upon." Citing Porter v. Noyes, 2 Greenl. (Me.) 22; 11 Am. Dec. 30; and cases cited there. It is hardly to be supposed, however, that if the vendor meant to obligate himself only to convey such title as he had, he would describe it by such an ambiguous expression as " good and sufficient deed." See extract from Tindall v. Conover, 1 Spencer (N". J. L.) 214; 11 Am. Dec. 220, infra. In Aiken v. Sanford, 5 Mass. 494, it was said that a contract to convey " by a good and sufficient warranty deed" was satisfied by a conveyance in proper form and regularly executed, if the grantor was seized so that the land passed by it. The reporter adds : " But the court observed that they did not mean to determine that in no case these words should be considered as applying to the title. If the money was to be paid on receiving the deed, it might be a reasonable construction that a good and sufficient title 'should be conveyed; otherwise the purchaser might part with his money, not merely for the land, but for a law suit also. In the present case, however, the money was to be first paid, and the plaintiff might as well sue on the covenants in his deed as on his bond. There was, therefore, no reason for giving a construction to the words not naturally implied by them." These observations were approved in Swan v. Drury, 22 Pick. (Mass.) 488. 36 MARKETABLE TITLE TO HEAL ESTATE. defects of title, it would be difficult to perceive any grounds upon which such decisions could be rested, since no man in his senses would bargain for a shadow when the substance was equally within his reach. In the absence of any evidence to the contrary, it would seem that in a contract to "give a good and sufficient deed," the words " good and sufficient deed " are a mere figure of speech, meaning a clear and uniucumbered title, 1 especially where, as is frequently the case, the contract was the work of an unskilled draughtsman. 2 Accordingly the decisions mentioned liave been frequently overruled or disapproved, and the established doctrine now is that an agreement to convey land by a good and sufficient warranty deed is not performed by the mere execution of a war- ranty deed sufficient in form, if the title of the grantor be ojK?n to reasonable doubt, 1 or if there be an incumbrance upon the prop- erty. 3 * rj>on a like principle it has been decided that a convey- 'Tindall v. Conovcr, 1 Spencer (N. J. L.), 214; 11 Am. Dec. 220, XORRIS, J., saying: "Now I undertake to say that in a written contract for the sale and purchase of lands the phrase " a good and sufficient warranty deed " will be understood by more than nine-tenths of mankind, not excepting the legal profession, to mean a good and sufficient title. That if a person intended to sell and another to buy, a doubtful or uncertain title, or anything less than a good and ufficient legal title, in reducing their contract to writing, they would not use this phrase, but would define the interest bargained for." Curtis Land Co. v. Land Co., 137 Wise. 341, 118 N. W. 853, 129 Am. St. Rep. 106S. 1 In our rural districts an>l among laymen the term "lawful deed carries no other idea than an unrestricted conveyance in fee, clear of incumhranoM.* Eby v. Eby, 5 Pa. St. 466. In the same way the term " title " is sometime? vulgarly used for " deed." Thus in Gilchrist v. Btiie. 1 Dev. & B. Eq. (>T. C.) 357, where the contract was "to make a sufficient title as far as this claim extends" the court said: "The term title in evidently nscd for deed. * * * To make a title, therefore, did not mean to make out on*, but to make a deed and to pass the title." In this case it appeared that the vendors contracted to sell and the purchaser expected to get only such title as the vendors had. 1 Whitchurst v. Boyd, 8 Ala. 375; Hunter v. O'NVHI. 12 Ala. 30. Here the agreement was merely "to make a deed." Tarwater v. Davis, 7 Ark. 153: 44 Am. Dec. 534; Pate v. Mitchell. 23 Ark. 590; 79 Am. Dec. 114. Thayer v . White, 3 Cal. 229; Haynes r. White. 55 Cal. 38. (But see Broun v. Covil- laud, 6 Cal. 566.) Altendroth v. Greenwood, 29 Conn. 356; Do execute to the purchaser "a good and sufficient deed of bargain and sale, free and clear of all inctimhrances, " if (he property i- im -umbered. I'orchard, 82 Cal. 347. If the purchaser contract for "a deed conveying ft d(. a r title" he may reject a warranty deed if there is an in.-iimbrance on the premises. Roberts v. Bassett, 105 Mass. 409. 1 Knapp v. l^e, 3 Pick. (Mans.) 450. disapproving Lloyd v. Jewell, 1 Greenl. (Me.) 352; 10 Am. Dee. 73. IMPLIED AND EXPRESS AGREEMENTS AS TO THE TITLE. 39 a life estate, is fully performed by delivery of a deed conveying such an estate as the vendor has. 1 11. Agreements to convey by " quit claim." It sometimes happens that the purchaser proposes to buy, and the vendor pro- poses to sell, only such title as the vendor actually has, without regard to the goodness or the sufficiency of that title. In other words, the purchaser makes a chancing bargain, and presumably is compensated for the risk he takes in a diminished valuation of the premises. Therefore, it is very generally held that if the vendor contract only to convey or " quit claim " such interest as he may have in the premises, the purchaser is without relief against him at law or in equity. 2 But while the rule that the parties may stipulate for the acceptance of the title, such as it is, is elementary, an agree- ment to that effect will not be inferred from ambiguous expres- sions, or from the purchaser's knowledge of the existence of objections to the title. Every agreement by which the purchaser consents to take a defective title without recourse upon the vendor should be expressed in clear and unambiguous terms. 3 It seems 1 Rohr v. Kindt, 3 Watts & S. (Pa.) 563; 39 Am. Dec. 53. 3 Holland v. Rogers, 33 Ark. 251. Fitch v. Willord, 73 111. 92. Vail v. Nelson, 4 Rand. (Va.) 124; Sutton v. Sutton, 7 Grat. (Va.) 204; 56 Am. Dec. 109; Bailey v. James, 11 Grat. (Va.) 468; 62 Am. Dec. 659. Boyles v. Bee, 18 W. Va. 520. McManus v. Btackmar, 47 Minn. 331. Thompson v. Hawley, 14 Oreg. 199, 12 Pac. 276; Morgan v. Eaton, 59 Fla. 562, 52 So. 305. Waldron v. Zollikoffer, 3 Iowa, 108, where it is said that the failure to give a full price for property is ordinarily a strong circumstance, but not a con- clusive one, to show that the parties contracted in view of defects, or for the actual value of the thing sold. In Louisiana, by statute, an express exclusion of warranty does not destroy the purchaser's right to require security against eviction, unless he bought with knowledge of the danger of eviction. Dufief v. Boykin, 9 La. Ann. 295; Gautreaux v. B"oote, 10 La. Ann. 137. A purchaser who buys at a public sale under an announcement that only an interest is to be sold, and that if there is no title the pur- chaser will get none, is without remedy if the title fails. Such an announce- ment dampens the sale, and the purchaser gets the property at a reduced price with a view to speculation, and must be held to his bargain. Ellis v. Anderton, 88 N. Car. 472. An agreement to convey " by a good and sufficient quitclaim deed," and reciting that the vendor acquired title at a foreclosure sale, requires the vendor to convey the entire estate in the land sold. Arentsen v. Moreland, 122 Wise. 167, 99 N. W. 790, 65 L. R. A. 973, 106 Am. St. Rep. 951; Brink v. Mitchell, 135 Wise. 416, 116 1ST. W. 16. 3 I Sugd. Vend. (Sth Am. ed.) 510, 511 (337) ; Rawle Cov. (5th ed.) 32. By agreeing to accept a quitclaim deed the purchaser does not part with his right to require a marketable title, free from incumbrances and defects. Wallach v. Riverside Bank, 104 1ST. Y. Supp. 661, 119 App. Div. 238. 40 MARKETABLE TITLE TO KEAL ESTATE. that the purchaser's consent to take a defective title does not neces- sarily deprive him of the right to require a conveyance with cove- nants for title, since it may be that the protection to be afforded him by those covenants is the sole inducement to the consent, but it has been said by the most eminent authority that if in fact the purchaser consents to take a defective title, relying for his security on the vendor's covenants, the agreement of the parties should be particularly mentioned. 1 As an agreement to make a " good and sufficient deed " relates not merely to the form of the deed, but to the sufficiency of the title, 2 so neither is an agreement to convey " by quit-claim deed," a stipulation merely as to the form of the deed; it is a con- dition which requires the purchaser to take just such title as the vendor has. 3 12. Agreement to sell right, title and interest. An agreement to sell all of the vendor's right, title and interest in the premises, is a sale of such interest only as the vendor may have, and the contract is fully performed on his part by a conveyance of such interest without regard to the goodness or sufficiency of the title. 4 It has been held, however, that a vendor so contracting must have some title or some right, even though it consist of no more than a naked possession ; otherwise the contract would be nudttm portion, and the purchaser might rescind. 6 Whether he might affirm the agreement and have damages for a breach of the con- tract is another question. . It has been held that an agreement to convey all the vendor's " right, title and interest, with full covenant of warranty," is not satisfied, except by the conveyance of an indefeasible estate.' 13. Express agreement to purchase subject to liens or defects. If the purchaser expressly agrees to assume the pay- ment of an incumbrance on the purchased premises, he not only cannot thereafter object to the title because of the inciimbrance,** H Suprl. Vend. (8th Am. ed.) 230 (573). * Ante. p. 36. McManua v. Blackmnr, 47 Minn. 331. Tweed v. Mill*. L. R., 1 C. P. 39; Johnston v. Mcndenhill. W. Va. 112; Babeork v. Wilton, 17 Me. 372; 35 Am. Dec. 203; Herrod v. Blackburn, 56 Pa. St. 103; 94 Am. I>-c. 49. '.Foliu-,,n T. Tool, 1 D.ina (Ky.), 470; 25 Am. Dec. 162. Lull r. Stone, 37 III. 156. Gillidctt T. Haydcn, 102 Kan. Gift. 171 Par. 617. IMPLIED AND EXPRESS AGREEMENTS AS TO THE TITLE. 41 but as between himself and the vendor, he makes the debt his own, and assumes to protect the vendor. 1 It has been held, however, that a mere agreement to take " subject to " an incumbrance, does not bind the purchaser to discharge the incumbrance. 2 It has also been held that if the purchaser merely agreed to take the property subject to a mortgage, he might reject a conveyance containing a provision that he should assume the payment of the mortgage, the effect of such provision being to render him person- ally liable for any deficiency, in case the land should be insufficient to satisfy the mortgage ; a state of affairs often found to exist after a rapid decline of speculative values. 3 It has been held that if the vendor contract in express terms to convey a " perfect title " to the purchaser, he will not be absolved from his obligation by a further provision of the contract that if the purchaser was compelled to pay any lien on the property the amount so paid should be deducted from the purchase money. It was considered that the provision in question was solely for the benefit of the purchaser, and that if there was an incumbrance on the property, he might abandon the contract notwithstanding his power to apply the purchase money to the incumbrance. 4 The general rule, however, is that the purchaser must apply the unpaid purchase money to the satisfaction of valid ineumbrances. 5 When the purchaser binds himself to pay rent if the title fails, he cannot, on failure of the title, recover damages from the vendor. 6 The purchaser may contract to take a defective title, and if he does so he cannot afterwards complain that the title is defective. 7 1 See upon this subject Sheld. Subrogation (2d ed.) 85; Taylor v. Preston, 79 Pa. St. 436; Burke v. G-ummey, 13 Wright (Pa.), 518; Campbell v. Shrum, 3 Watts (Pa.), 60; Woodward's Appeal, 2 Wright (Pa.), 322; Moore's Appeal, 88 Pa. St. 450; 32 Am. Rep. 469; Taintor v. Hemmingway, 18 Hun (N. Y.), 458; Kruger v. Adams, 13 Neb. 100. 2 Lewis v. Day, 53 Iowa, 575, and cases cited. 3 Kohner v. Higgins, 42 N. Y. Super. Ct. 4; Mellon v. Webster, 5 Mo. App. 449. 4 Lewis v. White, 16 Ohio St. 444. This was an action by the vendor against the purchaser for breach of the contract. The case seems to be in conflict with Devling v. Little, 26 Pa. St. 502. s See post, 245. 6 Cross v. Freeman, 22 Tex. Civ. App. 299 ; 54 S. W. 246. 7 Strauss v. Yeager, 48 Ind. App. 448, 93 N. E. 877. G CHAPTER IV. OF THE SUFFICIENCY OF THE CONVEYANCE TENDERED BY THE VENDOR GENERAL OBSERVATIONS. 14. ESSENTIAL REQUISITES OF THE CONVEYANCE. 15. Material, printing, etc. 16. Date. 17. Parties. 18. Words of conveyance. 19. Description of the premises, g 20. Description of estate or interest conveyed. 21. Signature and seal. 22. Attestation or acknowledgment. 23. (a) Venue of the certificate. 24. (b) Name and official designation of certifying officer. 25, (c) Name of grantor. 26. (d) Annexation of deed. 27. (e) Jurisdiction of certifying officer. 28. (/) Personal acquaintance with grantor, g 29. (g) Fact of acknowledgment. 30. (h) Privy examination of wife. 31. (t) Explanation of contents of deed. 32. (A) Voluntary act <>f >rife. 83. (0 Wish, not to retract. % 84. (TO) Reference to teal. 36. (n) Date of certificate. 86. (o) Signature of officer. 87. (p} Abbreviation of official designation. % 88. (g) Seal of officer. 39. (r) Surplusage and clfrirnl mistaken. 40. () Amen/ t "f *< itii<>--ii<'. 41. Reservations, restrictions and conditions. 42. Waiver of objections to the conveyance. 43. 14. GENERAL OBSERVATIONS. When the vendor prepares his conveyance and tenders it to the purchaser, the latter may reject it and in>i>t that tlinv lia- IK-CM a 1> reach of the contract, either (1) JJecanse the conveyance and it- covenants arc not such as he i- entitled to demand : or. _' Because the title is not such as the vendor has contracted to convey. A defective conveyance, pre- pared and tendered by the vendor, would not constitute, strictly [41] SUFFICIENCY OF CONVEYANCE TENDERED BY THE VENDOB. 43 speaking, a defect in the vendor's title. But inasmuch as chaser's title would be incomplete without the execution of a suffi- cient conveyance, it has been deemed proper to include that subject in the scope of this work. In England the purchaser is required to prepare and tender to the vendor a conveyance to be executed by him, and the same rule exists in some of the American States ; but the general rule in those States is that the vendor shall prepare and deliver to the purchaser a proper conveyance of the premises. 1 The conveyance must, of course, be sufficient in form to pass the interest to which the purchaser is entitled under the contract. 2 We have already seen that a conveyance sufficient in form as a mere medium for transferring title cannot be held a performance of a contract to make a " good and sufficient deed," if the vendor has not such title as the purchaser may require. 3 An agreement " to sell " lands obliges the vendor to make a proper conveyance. 4 The conveyance must be witnessed or acknowledged by all the parties, and have the necessary certificates attached, so that it may be admitted to record at once. 5 The conveyance must also contain all the covenants to which the purchaser is entitled. 6 Too much importance cannot be attached to this requisite, since upon these depends his right to relief in case he loses the estate after the conveyance has been accepted. 7 It has been held that the purchaser has no right to inspect the deed pre- pared by the vendor before paying the purchase money unless the contract so provides. 8 1 Post, 88. 4 But a conveyance sufficient to pass all of the vendor's interest need not follow the language of the contract and purport to convey "all the right, title and inter- est" of the vendor. Brown v. Bellows, 4 Pick. (Mass.) 178. 3 Ante, 10. Lindeman v. Penson, 54 Mont. 46(5, 171 Pac. 271. 4 Hoffman v. Fett, 39'Cal. 109; Smith v. Haynes, 9 Greenl. (Me.) 128; Dart V. & P. (5th ed.) 130. And, e converso, an agreement to "execute and deliver a deed" is an agreement to sell the land. Martin v. Colby, 42 Hun (N. Y.), 1. 5 Tapp v. Beverley, 1 Leigh (Va.), 80; Botto v. Berges, 47 La. Ann. 959; 17 So. Rep. 428. 6 Post, 67, 68. * Rawle Cov. for Title (5th ed.), 320; post, chap. 27. Papin v. Goodrich, 103 111. 86. 6 44 MARKETABLE TITLE TO REAL ESTATE. 15. ESSENTIAL, BEQUISTTES OF THE CONVEYANCE. The principal points to which the attention of the purchaser is to be directed in determining the sufficiency of the conveyance tendered to him by the vendor are : That it be written or printed upon paper, parchment or other equally convenient or substantial material ; that there be one or more correctly designated grantors and grantees; that the grantors are competent to convey, and, when they act in an official capacity, have employed all necessary formalities in the exe- cution of the deed ; that proper and necessary words of conveyance have been employed ; that the granted premises have been accu- rately and properly described, and, in some of the States, tliat the conveyance be under seal, attested by subscribing witnesses and acknowledged before some officer competent to take and certify acknowledgments. The foregoing essential requisites of a convey- ance, as between vendor and purchaser, are further considered in the following pages. It should be observed here, however, that a deed may be sufficient to support a title in ejectment, and yet not such a conveyance as the purchaser may require. For example, in those States in which the common law prevails, a deed without a signature, as has l>een already observed, is valid. But it is appre- hended that no purchaser could be compelled to accept such an instrument as a sufficient deed; for if he should offer to resell the premises, the w-ant of a signature to the deed under which he holds would, l>eyond question, be made the ground of objection to his title. And while the objection might, after litigation, be adjudged untenable, he should not be required to accept a conveyance so irregular in form as to render his title unsatisfactory to a purchaser. So, also, where the description is so vague and uncertain as to make necessary a resort to parol evidence to identify the premises. And, generally, it may l>e said that the purchaser may reject the convey- ance whenever its sufficiency is in any degree a matter of legal doubt, upon the same principle which permits him to reject a title concerning which there is a reasonable doubt. 1 No hardship can result to the vendor from these requirements, since he may always remove the objection at a trilling expense. The vendor has a right to prepare and tender, and the purchaser is bound to accept, a conveyance correcting errors or misdescriptions 1 Post. rhnp. 81. SUFFICIENCY OF CONVEYANCE TENDERED BY THE VENDOR. 45 contained in a former conveyance. If the vendor be dead, his heirs, or a commissioner of the court, should make and tender the amended conveyance. 1 By consent of parties, a deed defectively executed may be corrected by interlineations, reacknowledged and recorded anew, and may be presumed to be redelivered as of the new date, so as to take effect therefrom. 2 In some of the States a deed of bargain and sale must be supported by a valuable considera- tion, pecuniary or otherwise. 3 Wherever this rule exists, the pur- chaser should see that the consideration is expressed in the deed which is tendered to him by the vendor. It is true that the exist- ence of the consideration, if not recited in the deed, may be shown by evidence aliunde y 4 but the conveyance which the purchaser is to receive should, if possible, afford no occasion for a query as to its sufficiency, if he should desire to resell the estate. 10. Material, printing, erasures, etc. Deeds have always been written or printed upon paper or parchment, and the extreme improbability of a departure from this custom makes the question of the validity of a deed written or engraved upon other materials practically unimportant. If, however, a deed should be written or printed upon some material similar to and forming a convenient sub- stitute for paper or parchment, it is apprehended that a purchaser could not decline to receive it. A deed engraved, written or printed upon stone, metal, wood or other bulky and inconvenient material might perhaps be received as evidence of title in ejectment. 5 But there can be no doubt that a purchaser would be justified in rejecting such an instrument if tendered by the vendor. Deeds are usually written with ink, but they are not liable to objection because wholly or partly in print. Even the signature of a deed may, it is appre- hended, be in print, all danger of fraud being removed by the acknowledgment of the deed before attesting witnesses or a certifying officer. 6 For the same reason it is apprehended that a deed written 1 Leslie v. Blusher, 15 lad. 166; Rush v. Truby, 11 Ind. 462. * Fitz patrick v. Fitzpatrick, 6 R. I. 64; 75 Am. Dec. 681. -8 Washb. Real Prop. 368 (613). oe v. Doe, 4 How. (Miss.) 13. *Sec ca-e- riled 24 Am. & 1'iiL'. Knrye. of L. .".Y Kurtz v. HollinH.-.l. Cram-h C. C. (tJ. 8.] Chase v. Palmer. 2!> 111. .W, : \Vhittaker v. Miller. S.I III. 381. In both t CEM the deed had IM-.-M .-\.c-nti f removing or explain- ing apparent or seeming defects should not be imposed upon him. Where the purchaser i- a partnership, the conveyance must be made to the individual partners joint ly as tenants in common, and the partnership may reject a deed in which the grantee is the firm itself, e, f)., a deed to A. B. & Co. 8 A conveyance to A. B. & Co. passes the legal title to A. B. alone.' A deed made by "A. B., Kxecutor," without specifying the estate of the testator, and signed by the executor in the same way, is suilicient as a deed executed by him in a representative and not in bis individual capacity. 7 The purchaser is also entitled to require a conveyance fnnn the person appearing of record to be the owner, though he be in fact the mere nominal owner. 8 A contract by several to convey with war- ranty is not performed by tendering a conveyance -i^ne-l only by one of the vendors, and the purchaser may reject such a conveyance. He has & right to have the warranties of all tho-e with whom lie 'Mards v. Meyers. (Tex.) 28 S. W. Rep. 693. "McDonald v. Morgan. 27 T.\. BM] .lan-e- v. Stile-. 14 IVt. (f. S. ( 322. A vanance in tlio middle initial letter of tin- name of the rnntor, as written in tli<- signature nml in the body of the deed, will not moid the deed. Erskine v. KM* _.-. III. >:,}. Lyon v. Kain. ::t. Arthur v. \\.-tmi. 22 M". :t7S : p.,-:mnian v. Whitney. 20 Me. 41:5. : |:.il.<-.,,k v. Collins. (Minn.) ease the apparent owner contracted to the In-nelit of the eovrnaiit < of the :i]|tarent owner, and that tl. deed ten-len-d w.i- in-iitVicient. .SUFFICIENCY OF CONVEYANCE TENDERED BY THE VENDOR. 49 contracted. 1 It has been held that a contract to make a good and sufficient deed, entered into by a vendor having no title, would be satisfied by a tender of a conveyance from the real owner. 2 It would seem, however, that if the contract entitled the purchaser to covenants of warranty, the vendor should be required to join in the conveyance so tendered. In every case in which the purchaser is entitled to demand a conveyance with covenants for title by the vendor, the duty devolves on the vendor to make and deliver his own deed, and the purchaser may reject the deed of a third person. He is entitled to the covenants of his vendor. 3 But a deed from a third party is a substantial compliance with a covenant to convey, unless the purchaser is entitled to covenants of warranty from the vendor.* Such a deed, however, not being within the terms of the contract of sale, the burden devolves on 1 Lawrence v. Parker, 1 Mass, 191; 2 Am. Dec. 10; Clark v. Redman, 1 Blackf. (Ind.) 379. 3 Bateman v. Johnson, 10 Wis. 1. 3 Steiner v. Zwickey, 41 Minn. 448; 43 N". W. Rep. 376; Crabtree v. Levings, 53 111. 526; Yeates v. Prior, 11 Ark. 76; Taylor v. Porter, 1 Dana (Ky.) 422; 25 Am. Dec. 165; Royal v. Dennison, (Cal.) 38 Pac. Rep. 39; George v. Conhaim, 38 Minn. 338; 37 X. W. Rep. 391; McNamara v. Pengilly, 64 Minn. 543; 59 N. W. 1055; Meyers v. Markham, 90 Minn. 230; 96 N. W. 787; Miner v. Hilton, 44 N. Y. Supp. 155; 15 App. Div. 55. Rudd v. Savelli, 44 Ark. 145; Buswell v. Kerr. Co., 112 Minn. 388, 128 N. W. 459; Wolford v. Jackson, 123 Va. 280, 96 S. E. 237; Gottschalk v. Meissenheimer, 62 Wash. 299, 113 Pac. 765; Armstrong v. Palmer (Tex. Civ. App.) 218 S. W. 627; McVeety v. Merc. Co., 24 X. D. 245, 139 N. W. 586, Ann. Cas. 1915 B, 1028; Geo. H. Paul Co. v. Shaw, 86 Kan. 136, 37 L. R. A. (N. S.) 1123; Chicago Title Co. v. MacDonald, 192 111. App. 132. Compare Thos. J. Baird Co. v. Harris, 209 Fed. 291, 126 C. C. A. 217. The purchaser cannot be required to accept a deed from his vendor's vendor, with his ( the purchaser's ) name filled in as grantee by his vendor. Brugman v. Charleson, (X. D.) 171 N. W. 882. The rule that the purchaser is entitled to the covenants of his vendor is satisfied by a conveyance from the vendor to a stranger with warranty, fol- lowed by a conveyance from the stranger to the purchaser with warranty. Big Bend Land Co. v. Hutchings, 71 Wash. 345, 128 Pac. 652. 4 Bigler v. Morgan, 77 N. Y. 312; Robb v. Montgomery, 20 Johns. (N. Y.) 15. Kister v. Pollak, 109 N. Y. Supp. 204; 125 App. Div. 226. The vendee cannot be required to accept a deed from a third person to whom the vendor conveyed, without proof that no dower interest, nor tax, nor assessment lien had attached since such conveyance. Bensinger v. Erhardt, 77 N. Y. Supp. 577; 74 App. Div. 169. 7 50 MARKETABLE TITLE TO BEAL ESTATE. the vendor to show that the purchaser accepted the same in full performance of the agreement. 1 There would seem to be no reason why the purchaser should not be required to accept the conveyance, if those who would be entitled to the estate, in case of the failure of the title of the vendor, join with the vendor in the conveyance. 2 The purchaser should not only see that the parties to the convey- ance are properly named, designated or described, but he should insist upon the execution of the conveyance by all parties whose concurrence in the deed is necessary to perfect the title. If the deed be that of the husband, he should see that the wife joins, and rice versa. If the conveyance be by one who has an equitable estate only, as frequently happens, he should insist that the party having the legal title shall join as a party grantor. Regularly, the names of all parties executing the deed should be set out therein, but it sometimes happens that a deed poll is executed by a person not mentioned as one of the grantors. Whether the deed will be operative as to such person, it is unnecessary to consider here ; it suffices to say that the purchaser should reject such an irregular instrument, and require the name to be inserted in the proper place. If the conveyance is made in an official or representative capacity, that fact should appear in the description of the grantor; it is insufficient that the deed be signed by the party in the capacity in which he acts. 8 It is a general rule that the purchaser cannot be compelled to accept a conveyance executed by an attorney in pursuance of a power, unless an actual necessity for the execution of the convey- ance in that form appears. 4 There has been some conflict of opinion as to the validity of a deed purporting on its face to be the act of a principal, but executed and signed by an attorney in fact in his individual capacity, that is, without the name of the principal or the addition of words after the signature of the attorney to show that the deed is not his individual act, but the 1 Slocum v. Bray, 55 Minn. 249; 50 N. W. Rep. 826. 'Elkin* v. Thompson. 155 Ky. 01. 150 S. W. 617. 'Bohb v. Bnrnum, 50 Mo. 304. 2 Sugd. Vend. (8th Am. ed.) 214 (563). SUFFICIENCY OF CONVEYANCE TENDERED BY THE VENDOR. 51 act of the principal. It is deemed unnecessary to discuss this question here, or to refer to the decisions either way upon the points. 1 It suffices to say that the purchaser should insist that the recitals in the body of the deed shall show that it is the act of the principal, and that the deed shall be signed as well with the name of the principal as with that of the attorney, thus, " John Smith by his attorney in fact, William Brown." The purchaser should also be careful to see that the deed is exe- cuted by a person having power and authority to convey. If the grantor be an executor, administrator, trustee, attorney in fact, public official, officer of a court, officer of a corporation, or, indeed, any person acting en auter droit, the nature and extent of his powers should be examined, and the observance of all required formalities exacted. 2 Particular attention should be paid to con- veyances of corporate property, and all statutory or charter pro- visions as to the authority of the officers to convey, and as to the mode of conveyance, should be literally and rigidly followed. A conveyance of firm property should be signed by all the partners. One partner has no right to execute a deed in the name of the partnership unless the other partners are standing by and give their consent or confer power upon him by an instrument under seal. 3 1 The cases will be found collected in 1 Devlin on Deeds, 377, et seq. 2 A power of attorney to convey land must be under seal. Plummer v. Russell, 2 Bibb (Ky.), 174. A misrecital of a valid power of attorney in a deed, executed in pursuance thereof, is no objection to the validity of the deed. Jones v. Tarver, 19 Ga. 279. A deed executed by an attorney in fact, with provisions in excess of his authority, will be void as to such provisions, but valid in other respects. Gimell v. Adams, 11 Humph. (Tenn.) 283. A deed with blanks filled by an agent in the absence of the grantor, but with verbal authority from him, is void. Ingram v. Little, 14 Ga. 173; 58 Am. Dec. ;149. If the deed is made in pursuance of a judicial sale, the purchaser should see that the sale has been confirmed. Fraser v. Prather, 1 McArth. (D. C.) 206; 2 Dan. Ch. Pr. 1454. A commissioner acting under a decree of court can convey no more than he is authorized by the decree to convey. Xeel v. Hughes, 10 Gill & J. (Md.) 7. A conveyance by a corporation must be executed in the corporate name and under the corporate seal. Hatch v. Barr, 1 Ohio, 390. It is not necessary that the deed of a corporation shall recite the vote authorizing the execution of the deed. McDaniels v. Flower Brook Mfg. Co., 22 Vt. 274. ' Story on Partnership, 120. 52 MAKKETABLE TITLE TO KEAL ESTATE. If the purchaser be entitled, under the contract, to call for a c. nveyance of a clear and unincumbered title, he may reject a con- veyance which does not contain a relinquishment of any con- tingent right of dower existing in the premises. 1 Where several vendors join in the contract of sale, by which they are required to convey with warranty, the purchaser is entitled to have their joint conveyance with warranty, and separate conveyances tendered by each are insufficient. 2 19. Words of conveyance. The granting clause of a deed requires the careful attention of the purchaser. Of course the use of a form prescribed by statute will be sufficient, but the purchaser should see that the deed contains the operative words of conveyance found in the form or their equivalents. Such forms are usually brief, being intended to furnish a simple and convenient mode of conveyance, but it is generally provided that they shall not invali- date a deed in the " common law " or lengthy form. Where, how- ever, by statute or common law, certain technical words are made necessary in a conveyance, equivalents will not answer. 3 Thus, in some of the States, the words "grant, bargain and sell" are by statute made to imply certain covenants for title, and in other- the common-law rule that the word "heirs" is necessary in the creation of an estate of inheritance still exi>t>. Wherever this is the case, the purchaser should see that those preci-e words are employed and should reject a deed which does not contain them. Where the statutory form of conveyance is not employed, attention should be given to the operative words of conveyance in the deed. A paper containing no words of conveyance can ever operate a- a deed, 4 and yet instruments amounting to nothing more than itory contracts for the sale of lands have been tendered and i. ted as conveyances by persons acting without competent 1 Polk v. Sumter, 2 Strohh. L. (S. Car.) 81; Jones v. Gardner, 10 Johns. (X. Y.) 266. 'Lane v. Ziemar, (Ind. App.) 98 X. K. 741; Rajrol v. Dedman, ",0 Intl. App. 350, 98 X. E. 307. 1 \Vnh. Rriil Prop. m. p. 56 (3d ed.) 671. 4 \\m\\n v. Mnnter. 21 X. H. 52S-. ~>3 Am. Dfr. 223. An instrument under seal acknowledging receipt of the consideration fr tin- sale of real estate, hut containing no words of conveyance, passes no title. Picn-on v. Doe. 2 Ind. 123. SUFFICIENCY OF CONVEYANCE TENDERED BY THE VENDOR. 53 advice. An instrument in which the only words of grant are " sell " or " sign over," 1 cannot take effect as a deed. ]STo estate can pass by deed unless it is plainly embraced within the words of grant. 2 But a deed without sufficient words of conveyance in the granting clause will pass a fee if words sufficient for that purpose appear in other parts of the deed. 3 20. Description of the premises. A vast number of cases in which deeds have been held inoperative for want of a sufficient description of the premises may be found in the reports. The ^general rule is that a description from which it is possible to ascer- tain and identify the land intended to be conveyed is sufficient. 4 We need not inquire here whether parol evidence will be received in aid of an unintelligible description. The purchaser may avoid trouble of that kind by insisting upon a full and accurate descrip- tion of the premises. It is simply a matter to which his attention should be particularly drawn. The deed should set out the names of the State and county in which the land lies, and also the range, township, section and quarter section of which it forms a part, 5 where those subdvisions are in use, the name of the nearest town, village or other public place in the county, and the direction therefrom in which the land lies; then follow metes and bounds, 1 McKenney v. - Settles, 31 Mo. 541. But see Hutchins v. Carleton, 19 N". H. 487, where the words " assign and make over " were held to pass a fee, and Fash v. Blake, 38 111. 363, where a similar decision was rendered. The words "to go to" are sufficient as words of grant (Folk v. Varn, 9 Rich. [S. C.] Eq. 303), so, also, the word " convey" (Patterson v. Carneal, 3 A. K. Marsh. [Ky.] 618; 13 Am. Dec. 208), and the word "give" in a deed of gift. Pier son v. Armstrong, 1 Iowa, 282; 63 Am. Dec. 440. 2 Ryan v. Wilson, 9 Mich. 262. 3 Bridge v. Wellington, 1 Mass. 219. 4 Devlin on Deeds 1012. Where a purchaser takes possession of a rec- tangular piece of ground under a deed which gives the boundaries of three sides only of the rectangle, the court will supply the fourth side; and it is no defense to an action for the purchase money that the error in the description leaves an outstanding interest in the grantor or his heirs. Ray v. Pease, (Ga.) 22 S. E. Rep. 190. 5 In the description of lands in ejectment or in a conveyance, it suffices to give the number of the section, township and range according to the public surveys. Bledsoe v. Little, 4 How. (Miss.) 13. 54 MARKETABLE TITLE TO REAL ESTATE. courses and distances, references to known monuments and natural objects, lands of adjacent proprietors, public highways, water courses and the like, and an estimate of the quantity of land conveyed. It is better that a deed should contain all of these items of description, but of course they are not all indispensable, if from a part of them the land cai> be located and identified. A description as the " S. $ of the X. E. } of S. E. 4 " of a sec- tion was held fatally bad, there being no such thing as the " south- east half" of a section, though of course there might be a south- east quarter. 1 A description of the land conveyed as " ten acres, more or less," of a certain other piece of land, without showing how the ten acres are to he cut off, makes the deed void for uncertainty. 2 Land described in a deed must be susceptible of location, that is, the survey must be made to close as to the whole tract, or some definite portion thereof, otherwise the deed will be void and inoperative. 3 It is a general rule, however, that if the description of the premises given in a deed furnishes a sufficient means of locating and identifying the land to be conveyed, the con- veyance will be sustained, though some of the particulars of description may be erroneous or inconsistent. 4 But if the descrip- tion of the estate include several particulars, all of which are neces- saiy to ascertain the estate intended, no estate will pass except such as answers to every particular. 6 If a deed contain conflicting descriptions of equal authority, that which is most favorable to the grantee will be taken. 8 If there be any doubt about what property a* deed conveys, it must bo construed, most strongly against the grantor. 7 A deed which contains no other description of the premises than a reference to another deed containing a full description is sufficient. 8 And an uncertain description may be 1 Pry v. Pry, 109 111. 486. 1 Wilkinson v. Roper, 74 Ala. 140. WilRon v. Inloes, 6 Gill (M.l.i. 121. Vose v. Bradatreet, 27 Me. 168; Bell v. Woodward, 46 N. H. 315. ' Worthington v. Hylyer, 4 Mara. 196, per PARSONS, C. J. Vance v. Fore, 24 Cal. 435. T Black v. Grant, 50 Me. 364. Glover v. Shields, 32 Barb. (N. Y.) 374; Phelp* v. Phelps, 17 Md. 120; Johnston v. Scott, 11 Mich. 232. SUFFICIENCY OF CONVEYANCE TENDERED BY THE VENDOR. 55 cured by a reference in the deed to other conveyances. 1 A gen- eral description in a deed will govern where the particular descrip- tion by metes and bounds as given is uncertain or impossible. 2 If the actual boundaries of land, as marked by a surveyor, can be shown, the grantor, in a conveyance of the land, will hold accordingly, though the description by courses and distances be incorrect. 3 And it has been held that a conveyance by metes and bounds, accompanied by transfer of possession and marking the boundaries by natural objects, will pass the title, though no particular locality be set forth in the deed. 4 The purchaser jcannot be required to accept a deed which will require judicial construction to identify the premises conveyed-. 5 'But while a defective or ambiguous description may be, in many instances, cured by parol evidence, a purchaser should never be required to accept a conveyance open to that objection, for two reasons: First, because the want of an adequate and precise description of the premises tends to render his title unmarketable and objectionable to future purchasers; and, secondly, because a conveyance, though admitted to record, is not notice to subse- quent purchasers, unless the granted premises bei therein so plainly and clearly described that a person reading the deed may locate and identify the property therefrom. 6 If it be intended by the deed to convey lands, they must be referred to or described in the deed. Thus it has been held that a conveyance of the " assets " of a bank would not pass real property belonging to the bank but not specifically described in the conveyance. 7 21. Description of estate or interest. The purchaser should also see that the instrument tendered conveys the quantity of estate to which, by the contract, he is entitled. If, by the contract, he is 'Bowman v. Wettig, 39 111. 416. 2 Sawyer v. Kendall, 10 Cush. (Mass.) 241. 3 McIver v. Walker, 9 Cranch (U. S.), 173; Strickland v. Draughsn, 88 N. C. 315. 4 Banks v. Ammon, 27 Pa. St. 172. 6 Wadick v. Mace, 103 N. Y. Supp. 889; 118 App. Div. 777. 6 Banks v. Ammon, 27 Pa. St. 172. 7 Wilson v. Johnson, (Ind.) 38 N. E. Rep. 38. 56 MARKETABLE TITLE TO KEAL ESTATE. entitled to demand a conveyance of an absolute and indefeasible estate of a particular description in fee simple, he should promptly reject an instrument which conveys only the " right, title or inter- est " of the grantor in the premises, for such a paper, as a general rale, amounts to no more than a quit claim or release, and would not estop the grantor from setting up an after-acquired title to the estate. 1 If, however, there be an express conveyance of an estate of a particular description, the addition of the words " and all the estate, right, title, interest and demand whatever " of the grantor, would not convert the deed into a mere release. 2 The general rule is that a deed shall be construed to pass the largest estate which the grantor may have in the premises, unless an intention to convey a lesser estate appears from the instrument. 3 It fol- lows, then, that the purchaser cannot reject a conveyance, when tendered to him, on the ground that the quantity of estate or inter- est which he is to receive is not therein specially described. lie is only interested to see that the instrument does not convey a lesser estate than that to which he is entitled. A grant of " all the prop- erty I possess " will pass an estate in remainder. And a convey- ance " of all right, title, interest or claim to any land descended to one from A." passes any equitable, as well as legal, estate so descended. 4 The purchaser, of course, cannot object to the deed tendered him, on the ground that it conveys a greater right or interest than the grantor may lawfully pass or assume, assuming that the purchase was of the lesser estate. The conveyance will operate as an alienation of just such interest in the premises as the grantor actually had. 6 Thus, a deed" by a joint tenant, or tenant in common, purporting to convey the whole estate, is not, for that reason, void, but passes the individual interest of the 'Post, "Estoppel," 218. But a conveyance of a " ripht, title iind inter- est" will not be construed to be a mere rder that the certifi- cate of acknowledgment shall afford no ground for captious objec- tions to his title in the future. He should insist upon a rigid and literal adherence to the prescribed forms, no matter how trivial and unimportant the departures may seem. It is proposed now to invite attention to the essential parts of a certificate of acknowledg- ment, and for that purpose a form such as in general use is added here. Like the Statute of Frauds, every clause and every important word in it has been the subject of repeated adjudications. STATE OF , -\ County of ,\to-wit(a}: I, William Smith, a notary public in and for the county and State aforesaid(J), do certify that A. B.(c) - whose name is GO MARKETABLE TITLE TO KEAL ESTATE. signed to the foregoing writing^/), bearing date on the day of , . personally appeared before me in the county afore- said^), the said A. 13. being well known to me to be the person who executed the said writing( t /* ), and acknowledged the same to l>e his act() [SEAL](?). 24. (a) Venue of certificate. Regularly, a certificate of acknowledgment should state in the caption or margin, as in the foregoing form, the name of the State and of the city or county for which the officer was appointed, and in which the acknowledg- ment was taken. This is called the " venue '* of the certificate, but its absence from the paper will not be fatal if it otherwise suffi- ciently appears from the body of the certificate or from the deed itself read in connection with the certificate where the acknowledg- ment was taken. 1 But if the place of acknowledgment cannot bo determined from any of these sources, the certificate will be rejected. 2 The purchaser should avoid all difficulty upon this point by insisting that the paper tendered shall literally follow the pre- scribed form. 25. (b) Name, official designation^ and authority of officer. The name of the certifying officer should appear in the body of the certificate. But this, it is apprehended, is not indispensable if the certificate be duly signed by the officer. If the statute provides that the acknowledgment shall be made l>efore two officers instead 'Graham v. Anderson, 42111. 514; 93 Am. Dec. H9; Dimlup v. Dougherty. 30 111. :7; Piihrmnn v. London, 13 Serg. & R. (Pa.) ; 15 Am. Dec. 608; Hrooks v. Ch:ii>lin. :i Vt. 281; 28 Am. Dec. 201. 1 Vance v. Schuyler, 1 Oilm. (111.) 160; Ilardin v. Kirk, 49 111. 153; 95 Am Dec. 581. 8 SUFFICIENCY OF CONVEYANCE TENDERED BY THE VENDOR. 61 of one, the names of both should be set out in the certificate. 1 The purchaser, of course, whether as grantee in his own right or in a representative capacity, 2 should not take the acknowledgment of the grantor. The court will reject a certificate by an interested party. 3 The fact that an officer taking an acknowledgment is related to one of the parties does not bring him within this rule. 4 One who owns an interest in a tract of land is not thereby prevented from taking an acknowledgment of a deed con- veying the interest of another person in the same land. 5 If, by statute, a recital in the body of the certificate showing the official character of the person taking the acknowledgment is made necessary, and there be no such recital and no addition of the official character after the signature of the officer, the certificate will be insuf- ficient. 6 In the absence of any statutory provision upon the subject, it is not absolutely necessary to recite the official character in the certifi- cate. 7 If the statute requires that the certificate shall show that the officer is one of those authorized by iaw to take acknowledgments, evidence aliunde will not be received to supply a defect in that par- ticular ; otherwise, if the statute does not so require. 8 A variance between the recital of official character in the body of the certifi- cate, and that appended to the signature of the officer, is not 1 Ridgely v. Howard, 3 Harr. & McH. (Md.) 321. 2 Beaman v. Whitney, 20 Me. 413; Brown v. Moore, 38 Tex. 645, trustee; Black v. Gregg, 58 Mo. 565, trustee; Stevens v. Hampton, 46 Mo. 404; Dail v. Moore, 51 Mo. 589; Clinch River Veneer Co. v. Kurth, 90 Va. 737, a case in which the trustee in a deed took an acknowledgment thereof. 3 Withers v. Baird, 7 Watts (Pa.), 227; 32 Am. Dec. 754; Groesbeck v. Seeley, 13 Mich. 029; Davis v. Beazley, 75 Va. 491; Clinch River Veneer Co. v. Kurth, (Va.) 19 S. E. Rep. 878; Wilson v. Traer, 20 Iowa, 231. Compare Kimball v. Johnson, 14 Wis. 674. 4 Lynch v. Livingston, 6 X. Y. 422. 5 Dussaume v. Burnett, 5 Iowa, 95; Long v. Crews, 113 N. C. 256; 18 S. E. Rep. 499, when the officer was a preferred creditor in the deed; so, also, in Baxter v. Howell, (Tex. Ciy. App.) 26 S. W. Rep. 453. Acknowledgment of a clerk is not invalid because taken by his deputy. Piland v. Taylor, 113 N. C. 1; 18 S. E. Rep. 70. 6 Johnston v. Haines, 2 Ohio, 55; 15 Am. Dec. 533. See, also, Van Ness v. Bank, 13 Pet. (U. S.) 17. 1 Russ v. Wingate, 30 Miss. 440; Shultz v. Moore, 1 McLean (U. S.), 520. Van Ness v. Bank, 13 Pet. (U. S.) 17; Scott v. Gallagher. 11 Serg. & R. (Pa.) -347; 16 Am. Dec. 508. 62 MARKETABLE TITLE TO REAL ESTATE. material. 1 And a variance between the statutory description of the officer and that contained in the certificate is immaterial.* The pur- chaser should be careful to see that the certifying officer is one of the class authorized by statute to take acknowledgments. A certifi- cate by an officer not named in the statute will be insufficient. 3 It is not necessary that an officer shall certify that he was authorized to take acknowledgments ; the fact that he describes himself as a particular officer is sufficient, and his authority may be shown aliunde.* If the competency and authority of the certifying officer be unknown to the purchaser, he should insist upon evidence of those particulars, which, when supplied, usually consists of a certificate of the judge or clerk of the court in which the officer qualified, setting forth the fact of such qualification, and the vitality of the i>tH<--i'> commission. 5 It is customary also for the certifying officer to append to his certificate a statement of the time when his eommi- sion will expire. But while a purchaser would doubtless be justified in declining to accept a deed which had been acknowledged before an officer whose commission had expired, or before one who had usurped the oilier, by virtue of which he acted, it seems that the certificate would in neither case be held invalid, if the person making it assumed to ;! in an official capacity, and had color of title to the office in ques- 1 Merchants' Bank v. Harrison, 39 Mo. 438; 93 Am. Dec. 285, *einbU. 'May v. McKeenon, 6 Humph. (Tenn.) 207; Welles v. Cole, 6 Grat. (Va.) 645. 'Dundy v. Chambers, 28 111. 869 (312). Here the statute authorized an acknowledgment before mayors of cities. It was held that an acknowledgment before a mayor of a Itnen was invalid. Kimhall v. Semple, I0('al. -111. S. <, :ilso. Wright v. Wells, 12 N. J. I. i:il: Vlil.-r v. Hutchinson, 23 Pa. St. 110. In North Carolina it has been held that the authority of COOliniMlonen appointed by the State government to take acknowledgments to deeds is routined to deeds made by non residents of the Slat- !>< Courery v. Burr. 1 Hiisb. Kq. judge that the otlicer taking the acknowledgment was qualified to a< t us such at the time the acknowledgment was Uken. Phillip-. v. People. 11 in. A pp. 1140. As to doubts about the title arising from these particulars, sec post. rh. :J1. ? 800. SUFFICIENCY OF CONVEYANCE TENDERED BY THE VENDOR. 63 tion. 1 In such a case the act of a de facto officer cannot be questioned in a collateral proceeding. Where a certifying officer has power to appoint a deputy, an acknowledgment taken and certified by such deputy will be suffi- cient. 2 The better practice is that the certificate shall read as if the acknowledgment had been taken before the principal himself, and be subscribed with his name, by "A. B., Deputy," etc. 8 But a certificate by the deputy in which the name of the principal nowhere appeared has been held valid. 4 The body of the certifi- cate should show, either by express recital or by reference to the caption or the margin of the certificate, the State, county, city or other municipality in which, and as an officer of which, the person signing the certificate professes to act. If this cannot be collected from the whole instrument, read in connection with the deed, the certificate will be rejected. 5 26 (c) Name of grantor. The name of the grantor or person acknowledging the deed must be stated in the recital of acknowl- edgment in the certificate, and if not so stated, the certificate will be worthless, 6 unless he be so described therein that he may be identified as the person who signed the deed. 7 The purchaser should avoid any future question or doubt which may arise from this source by insisting that the name of the grantor recited in the certificate shall correspond precisely with the name signed to the deed. 8 But where a deed has been acknowledged in open court, a 1 Brown v. Lunt. 87 Me. 423; Prescott v. Hayes, 42 N. H. 56; Crutchfleld v. Hewett, 2 App. Cas. (D. C.) 373. *Mullerv. Boggs, 25 Cal. 175; Rose v. Neuman, 26 Tex. 131; 80 Am. Dec. 646; Kemp v. Porter, 7 Ala. 138. 1 Talbot v. Hooser, 12 Bush (Ky.), 408; McCraven v. McGuire, 23 Miss. 100. 4 Beaumont v. Yeatman, 8 Humph. (Tenn.) 542. s Vance v. Schuyler, 1 Gilm. (111.) 160. 6 Smith v. Hunt, 13 Ohio, 260; 42 Am. Dec. 201; Hiss v. McCabe, 45 Md. 84; Hayden v. Westcott, 11 Conn. 129. 1 Sanford v. Bulkley, 30 Conn. 344, where the person acknowledging the deed was referred to in the certificate as "Signer and sealer of the foregoing instrument." Wise v. Postlewait, 3 W. Va. 452. 8 The danger of inattention to this feature of the certificate is illustrated by the case of Boothroyd v. Engles, 23 Mich. 19. There the deed was signed by Harmon Sherman, but the certificate recited an acknowledgment by Hiram Sher- man, and this the court held insufficient as proof of execution and acknowledg- 64 MARKETABLE TITLE TO REAL ESTATE. certificate of that fact which fails to state by whom the deed was acknowledged is, nevertheless, sufficient, it being presumed that the acknowledgment was by the grantor. 1 If the deed be that of a corporation, the proper person to acknowl- edge it is the officer who affixed the corporate seal. 2 If the deed be signed by two or more officers of the corporation, an acknowl- edgment by one of them will suffice. 8 The instrument should be acknowledged to be the act and deed of the corporation, and not of the subscribing officer. 4 It is the better practice that the official or representative capacity of a party acknowledging a deed, such as a sheriff, trustee, commis- sioner, etc., be stated in the certificate, but this is not essential, and a mere description of the grantor by his name will be sufficient. 5 An authority to execute a deed of trust as attorney gives the power by implication to acknowledge it for registration. It seems that a grantor, executing a deed in his own proper person, may acknowl- edge it through an attorney in fact. 7 A certificate that " A. duly acknowledged to me that he subscribed the name of B. to said deed as principal and his own name as attorney in fact,' 1 is sufficient. 8 27. (d) Annexation of deed and reference thereto. In some of the States a certificate of acknowledgment is by statute required to be written or printed upon the same paper on which the deed is drawn. Under such a statute it has been held that a certificate nient of the deed by Hnrmon Sherman. A deed was signed "F. M. McKinzic." and the certificate stated an acknowledgment by "F. M. McKezie." lleld, insuf- ficient. McKin/.ie v. Stafford, (Tex.) 27 S. W. Hep. 790. But see Chandler v. Spear, 22 Vt. 3S8, where it was held that an incorrect recital of the grantor's name in the certificate was not fatal, if it appeared with reasonable certainty from the whole instrument that it was in fat* acknowledged by him. 1 Phillips v. Ruble, Lilt. Scl. Cas. (Ky.) 221. 'Kelly v. Calhoun. 95 U. 8. 710; Lovett v. Saw Mill Assn., Paige (N. Y.). 54. 1 Merrill v. Montgomery, 25 Mich. 78. 4 McDaniel v. Flower Brook Mfg. Co., 22 Vt. 274. But ice Tenney v. East Warren, etc.. Co., 48 N. H. 848. s Ihiil v. Moore. 51 Mo. 589; Robinson v. Mauldin, 11 Ala. 977. * Robinson v. Mauldin. 1 1 Ala. 977. 1 Elliott v. Oahorn, 1 llarr. & Mcll. (Md.) 146. Richmond v. Voorbees. 10 Wah. 816; 38 Iac. Rep. 1014. SUFFICIENCY OF CONVEYANCE TENDERED BY THE VENDOR. 65 written upon a separate piece of paper, but firmly attached to the deed, was not in compliance with the law and was insufficient, 1 a decision that savors somewhat of excessive refinement. Ordinarily, it suffices to attach the certificate to the deed with mucilage or other adhesive substances. And, in the absence of any statutory provision bearing upon the point, it is apprehended that the certificate would not be open to objection even if it were detachable from the deed. The fact that the certificate of acknowledgment refers to the deed to which it is attached as the " foregoing mortgage," the same not being a mortgage, is immaterial. 2 28. (e) Jurisdiction of officer. The rule that an officer has no power to take an acknowledgment without the limits of the county, city or other municipality in and for which he was appointed, pre- vails, it is believed, in most of the States. 3 It has been held, how- ever, that if the certificate does not show that the acknowledgment was taken within the jurisdiction of the officer, that fact will be pre- sumed, 4 the legal presumption being in favor of the validity of the acts of public officers, where nothing to the contrary appears. But inasmuch as the form of certificate generally prescribed recites the county for which the officer was appointed, and that the grantor per- sonally appeared before the officer in that county, and acknowledged the deed, the purchaser, it is apprehended, may well reject a cer- tificate which does not contain those recitals. Of course, the officer may always take an acknowledgment within his jurisdiction, regard- less of the location of the premises conveyed. 5 29. (f) Personal acquaintance with grantor. The recital in the certificate thai; the party acknowledging the deed was well known 1 Winkler v. Higgins, 9 Ohio St. 599. 1 Ives v. Kimball, 1 Mich. 308. 3 Long v. Crews, 118 N. C. 256; 18 S. E. Rep. 499; Dixon v. Robbins, 114 N. C. 102; Ferebee v. ffinton, 102 N. C. 99; 8 S. E. Rep. 922. The jurisdiction of the officer depends upon the statute which confers his authority. Thus, when it was provided that an acknowledgment might be taken by "any justice in this State," it was held that a j ustice might take an acknowledgment any where in the State. Learned v. Riley, 14 Allen (Mass.), 109. 4 Sidwcli v. Birney. 69 Mo. 144; Thurman v. Cameron, 24 Wend. (N. Y.) 87. In both these cases the venue of the certificate showed the State and county in which it was made. Of course, it does not necessarily follow that the acknowledg- ment was taken in such county. Trulock v. Peeples, 1 Ga. 8. * Johnson v. McGhee, 1 Ala. 168; Colton v. Seavey, 22 Cal. 496. Q 66 MARKETABLE TITLE TO REAL ESTATE. to the officer, or that his identity was proved to the officer by the oaths of credible witnesses, is indispensable. 1 Equivocal phrases, Biich as that the officer is satisfied as to the identity of the party, will not suffice. 2 But where the statute provided that the officer should certify that he was '* personally acquainted with" the grantor, a cer- tificate that the grantor was "personally known" to the officer was held sufficient. 8 The omission of the word " known " in the clause " personally known to me " will be fatal. 4 But it has been held that the omission of the word " personally " from the same clause is immaterial. 5 30. (e such, but did not Hhow. an acknowledgment. Ingraham v. Grijrg. 13 Sm. & M. (Miss.) 22. An acknowledgment tluit he "aimed sealed and delivered" the deed is aUo equivalent t" an acknowl- SUFFICIENCY OF CONVEYANCE TENDEKED BY THE VENDOR. 67 fici'ent. 1 It seems that an inadv-ertent or clerical omission of the word " acknowledged " from the certificate will render it invalid. 2 And where a statute provides that the grantor shall acknowledge the instrument to be his " voluntary " act and deed, the omission of the word " voluntary," or its equivalent, makes the certificate worthless. 3 31. (A) Privy examination of wife. A certificate of acknowl- edgment of a deed executed by a married woman requires the closest scrutiny of the purchaser. The formalities prescribed by statute in this behalf are intended to supersede the ancient common- law mode of conveying the lands of a married woman by fine and recovery. They are, therefore, necessary, not only as an authenti- cation of the deed for record, but as a part of the execution of the deed itself, without which it would be invalid between the parties, as well as to subsequent purchasers without notice. 4 For this reason, and because of the jealous care with which the courts guard the rights of those who act principally under the direction or per- suasion of others, the most rigid compliance with all the require- ments of the law relating to the acknowledgments of married women lias been exacted. It is, therefore, indispensable that the certificate shall show that the woman was examined by the officer privily and apart from her husband. But it is not necessary that these precise words shall be employed in the certificate if others of the same import are used. Thus, a certificate that the officer took "the pri- vate examination " of the wife, and that she acknowledged that " she executed the deed without any compulsion from her husband," was held sufficient. 5 So, where the language was " after a private examination, separate and apart from her said husband." 6 And where the statute required that the woman should be examined " out of the presence" of the husband, a certificate that she was "pri- edgment that he executed the deed. Jacoway v. Gault, 20 Ark. 190; 73 Am. Dec. 494. 1 Dewey v. Campau, 4 Mich. 565. This was a great refinement. 9 Stanton v. Button, 2 Conn. 527. 3 Newman v. Samuels, 17 Iowa, 528; Spitznagle v. Van Hessch, Neb. 338. But see Henderson v. Grewell, 8 Cal. 581. 4 Barnett v. Shackleford, 6 J. J. Marsh. (Ky.) 532; 22 Am. Dec. 100. * Skinner v. Fletcher, 1 Ired. L. (N. C.) 313. * Kennedy v. Price, 57 Miss. 771. G8 MARKETABLE TITLE TO REAL ESTATE. vatcly examined, apart from and out of the hearing of her husb;< iws accepted. 1 But where the statute required that the officer should examine the wife " separately and apart " from her husband, a certificate that she had been examined "apart" from him \vac held insufficient. 2 32. (i] Explanation of contents of o alo- lute.y indispensable. 8 The intent <>f the ia\v i> to protect her from deception, as well as coercion, in the execution of the instrument. Where a statute provided that the officer should make known and explain the contents of the deed to the woman, a certificate which set forth that she was made acquainted witli the contents of the deed, but did not state that they were explained to her, was deemed sufficient. 4 So, also, where the certificate reciu-d that the woman " acknowledged and declared that she was well acquainted with the contents of the deed." ' a division open to grave doubt, since she may have been falsely advised a to the said contents. But a certifi- cate that the woman u declared that she fully understood the con- tents of said deed," without stating that the contents were ex plained to ner, is inva.id.' We have aiready seen that a recital of acknowledgment in the certificate, or what amounts to such a recital, is necessary, and can- not be supplied by intendment. 7 Also, that, as a general rule, the deed of a married woman, whether a mere relinquishment of her contingent right of dower, or a conveyance of her separate estate, 1 Deery v. Cray, 5 Wall. (U. 8.) 795. So, also, where the statute provided that the officer "shall examine hrr private.y. out of the hearing of her husband," and the certificate was "being by us privately examined," omitting the words "out of the hearing of her husband." Webster v. Hall, 2 Hair. & M< !I >H .1 19; 1 Am. Dec. 870. Dewey v. < ar.i|.:iu, 4 Midi. .'if;.',. But s e the remarks of MII.MCK, J., in Deery v. Cray, 5 WalL (U. 8.) 795, to the effect that "separate" and "apart," as used in the form, are synonymous terms 'Houston v. Randolph, 12 Leigh < V.-i ,. l IV Bo..ing v. Teel, 76 Va. 498. *Ch*uvin T. WagiN T U N ' ~>41, a doubtfu. decision. Thomas v. M -i < * I/niirton T. Marshall, 59 Tex. 2U6; Itunge v. Sabin, (Tax.) 30 8. W. Rep. 668. 'Ante. { 30. SUFFICIENCY OF CONVEYANCE TENDERED BY THE VENDOR. 69 is void as between the parties, unless acknowledged and certified in strict conformity with the requirements of the law. 1 33. (&) Voluntary act of wife. Another indispensable requisite of the certificate is that it shall contain a recital, either in terms or in substance, that the woman declared that she had signed, sealed and delivered the deed willingly. An officer should never undertake to draw the certificate unless he has the statutory form before him, If he relies upon his memory he is apt to use expressions deemed by him the equivalent of those contained in the statute, or to omit words which appear to him immaterial. A vast number of cases are to be found in the reports in which the courts have been called upon to decide the correctness of his judgment in these particulars. Expressions which the courts in one State have deemed sufficient substitutes for the language of the statute above quoted, have been rejected in others. 2 A certificate of acknowledgment by a married woman which departs from the statutory form, may always be relied upon to create such a reasonable doubt concerning the title as would justify a purchaser from the grantee in refusing to complete the contract, for there is no rule by wliich the sufficiency of the certifi- cate can be tested, and while one judge might deem it a substantial compliance with the law, he could have no assurance that another judge, if the title should be afterwards attacked, in ejectment or otherwise, would not entertain a contrary opinion. And if a pur- chaser from the grantee might reject the title as unmarketable upon this ground, a fortiori might the grantee himself reject the convey- ance until a certificate free from doubt should be tendered. All possibility of doubt or question as to the validity of the certificate should be removed by insisting upon a strict and literal conformity with the language of the statutory form or requirement. 3 '.Mason v. Brock, 12 111. 273; 52 Am. Dec. 490; Martin v. Dwelly, 6 Wead. (K Y.) 9; 21 Am. Dec. 245. * Clinch JRiver Veneer Co. v. Kurth, 90 Va. 737, and cases cited below. 3 Cases in which the certificate was held insufficient. Where the statute provided that the certificate should show that the woman acknowledged that she had not been induced to execute the deed through " ill-usage," and the certificate was that she acknowledged that she executed the deed "of her own free will, and not through any threats of her said husband, or fear of his displeasure." Hawkins v. Burress, 1 Harr. & J. (Md.) 513. Language of statute, "signed, sealed and delivered the deed as her voluntary act and deed, freely, without any fear, threats or compul- sion of her said husband; " language of certificate, " signed, sealed and delivered 70 MAKKKTABLE TITLE TO KEAL ESTATE. 34. (/) Wish not to retract. If the statute provides that the wife, in addition to acknowledging the deed, shall state that she does not wish to retract it, a certificate will be fatally defective if it does not recite that fact. 1 It is not absolutely necessary that the certifi- cate shall follow the precise language of the statute, 3 and the employment of a wrong word, but one obviously intended for that used in the statute, will not vitiate the instrument. 8 But inasmuch the above instrument of her own free will and accord, and without any force, per- suasion or threats from her said husband.' Boykin v. Rain, 28 Ala. 332,- 65 Am. Dec. 349. See, also, Alabama Life Ins. & Tr. Co. v. Boykin, 38 Ala. 510. Lan- guage of statute, ' freely, voluntarily, without compulsion, constraint or coercion by her husband;" language of certificate, "had willingly signed, sealed and delivered the same, and that she wished not to retract it." Henderson v. Hire, 1 Coldw. (Tenn.) 223. Language of statute, "had willingly executed the same, and does not wish to retract it; " the certificate omitted the words "had willingly executed the same." Leftwich v. Neal, 7 W. Va. 569. Language of statute. "Toluntary act and deed;" language of certificate, "of her own free will." Freeman v. Preston, (Tex.) 20 8. W. Rep. 495. Cae in which the certificate uxis held sufficient. Where the statute provided that the certificate should show that the woman acknowledged the deed "without undue influence," and the certificate was that she acknowledged " that she exe- cuted the same freely and voluntarily * * * without fear or compulsion." Goode v. Smith, 13 Cal. 81. Language of stntute, "of her own free will * * * without undue influence or compulsion of her husband:" language of certificate, " without undue influence or compulsion of her husband." Tubbs v. Gatewood, 26 Ark. 128: Language of statute, " voluntarily and of her own free will and accord, without any fear or coercion of her husband; " language of cer- tificate, "acknowledged the above indenture to be (her) voluntary srct and deed." Ruffner v. McLenan, 16 Ohio, 639. Language of statute, "signed, sealed and delivered the same as her voluntary act and deed, freely, without any fear, threats or compulsion of her husband;" language of certificate. " that she signed, sealed and delivered the same, freely and voluntarily, and without any threats or compulsion from her said husband." Den v. Geiger, 9 N. J. L. 225. Language of statute, "as her voluntary act and deed;" language of certificate, "freely and of her owe accord." Dundas v. Hitchcock, Vi, How. (U. 8.) 256. Language of statute, " that she had freely and voluntarily executed the same;" l:muii:iir-"f certificate, "without any fear, threats or compulsion." Allen v. Deiioir. .">:! Mi-> 821. Language of statute, " that she had of her own free will executed the deed, without compulsion or undue influence of her husband; " laniru.-i-e of cer tificate, "freely and of her own consent, but not by the p. r-ua-i.-ii or < om|nil>ior. Of her Said husband." Little v. Dodire. :V.> ArK Grove v. Xuml.ro. 14 (Imt. ed "by A. B., deputy," etc. 2 38. (p) Abbreviation "/. -P.," etc. It is not absolutely neces- sary tliat the officer shall add to his signature his official designation, if the capacity in which he acts elsewhere appears in the certifi- cate. 3 We liave already seen that, as a general rule, his ofiicial capacity must somewhere appear, either from the body of the cer- tificate or from the attestation clause, as the instrument, must, on its face, appear to be the act of a competent person. As it is cus- tomary to follow the signature of the officer with his official title, the purchaser should see that this is done in order that his title papers may present no appearance of irregularity. An abbreviation of the official title in common use, such as " J. IV or ''N. P.," will suffice. 4 39 (e fatal. 5 This formality, how- ever is not required in all the States, and where not required the absence of the seal is immaterial. 6 It has been held that if by the law of a State in which an acknowledgment is taken a seal by the cer- tifying officer is unnecessary, the want of such a seal will le no objection to the title in another State in which the land lies. In 'Marstonv. Bradshaw. 1* Mich <<. 152. McCraven T. McOuire, 23 Miss. 100. Brown v. Farntr. 3 Ohio, 140. The omission <>f the letters " N. P." after the signature of a notary public does not affect thc validity of the certificate. I>ake Erie & W. R. Co. v. Whithara, 155 HI. 514; 40 N. E. Rep. 1014. 4 Final v. Backus, 18 Mich. 218; Russ v. Wingnte, 30 Mis*. 440; Rawley T. BemHn. 12 111. 198. Ibwon v. Brock. 12 111. 278; 52 Am. Dec. 400; Hastings v. Vaughn. 5 Cal. 315; Booth v. Cook, 20 111. 129. The notary's seal must appear, when his certifi- cate declares that he hat affixed it; otherwise the certificate is invalid. Bullanl v. Perry. 28 Tex. 347. An abstract of title contained a memorandum of a cer- tificate of acknowledgment KB follows: "Certif. of acknt. by notary public for said county is signed 'B. R. Randall. L. 8.. Notary Public." 1 Held, that the abstract sufficiently showed H crrtiflcnte under official seal. Bin-kit- n T. Hasterlik. 155 111. 428; 40 N. E. Rep. 561. Parnum T. Buffum. 4 C'uali. (Mass.) 260; Baze T. Arper. 6 Minn. 220. None is required in Virginia; the court takes judicial notice of the acts of domestic notaries public. Sec, also. Powers v. Bryant, 7 Port. (Ala.) 9. SUFFICIENCY OF CONVEYANCE TENDERED BY THE VENDOR. 73 other words, that the validity of the certificate in this respect is to be governed by the law of the place where the acknowledgment was taken. 1 Where by statute the officer is required to have a seal, it must be an instrument capable of making a durable impression upon paper or some tenacious material attached to the paper. 2 If the officer be one who is not required by statute to have a seal, it is apprehended that a scroll or scrawl, recognized by him in the instru- ment as a seal, will suffice. If the form of the officer's seal be pre- scribed by statute, it must of course conform to the requirement. If there be no provision upon the subject, any device that he chooses to adopt will suffice. It is better, of course, that the seal should state the name and office of the officer, but the better opinion seems to be that these particulars are not indispensable. 8 The fact that the seal precedes instead of follows the signature of the officer is immaterial. 4 4:0. (r) Surplusage, clerical mistakes. If a certificate of acknowledgment is in all other respects sufficient, the fact that it con- tains statements or recitals not required by law is immaterial. Mere surplusage or redundancy leaves the certificate unimpaired. 5 If the instrument contains all that the law requires, the fact that it is in the form of a jurat is of no consequence. 6 Nor will an obviously clerical mistake, such as the substitution of a word which does not make sense for the one used in the statute, 7 nor the omission of an immaterial word, especially where the omission is a plain oversight or inadvertence, such as the failure to insert a pronoun in a blank left for the purpose, 8 make the certificate worthless. But with respect to clerical mistakes and omissions there has been much ques- i Bucklen v. Hasterlik, 155 111. 423; 41 N. W. Rep. 561. 1 Mason v. Brock, 12 111. 273; 52 Am. Dec. 490. Mason v. Brock, 12 111. 273; 52 Am. Dec. 490. But see In re Nebe, 11 Nat. Bankruptcy Reg. 289. 4 Gilchrist v. Dilday, 152 111. 207; 38 N. E. Rep. 572. 5 Chester v. Rumsey, 26 111. 97; Stuart v. Dutton, 39 111. 91; Whitney v. Arnold, 10 Cal. 531. e Ingraham v. Grigg, 13 Sm. & M. (Miss.) 22. 1 Calumet & Chicago Canal Co. v. Russell, 68 HI. 426. 8 Dickerson v. Davis, 12 Iowa, 353. In Spitznagle v. Van Hessch, 13 Neb. 333, the omission of the words "and deed" from the clause " voluntary act and deed" was held immaterial. So, also, where the word "deed" was inserted and the word "act" omitted. Stuart v. Dutton, 39 111. 91. The omission of the 10 74 MARKETABLE TITLE TO KKAI. ESTATE. tion and doubt as to what of them are and what are not material. The omission of the word " acknowledged,'" ! though obviously inadvertent, has been held fatal to the certificate, and, on the other hand, the absence of the word " known " from the clause " fully made known to her," 2 has been held a mere clerical omission. And in other cases omissions which one court has treated as immaterial have been by other courts regarded as of vital importance. Under these circumstances there can be no doubt that a purchaser would be justified in refusing to accept the conveyance if the certificate of acknowledgment attached thereto contained either clerical errors or inadvertent omissions. The vendor cannot force upon him a deed which, though it may be finally adjudged sufficient, is executed or acknowledged in such a manner as to cast a doubt upon the title. Generally the statutes of the different States prescribe the several elements of the acknowledgment and the duties of the certifying officer, and give a form in which the certificate may be made by the officer. Where this is done, and the form given omits some phrase or expression used in the statute, the form governs, and a certificate which literally follows the latter will be sufficient. 3 The body of the deed may sometimes be referred to for the purpose of supplying omissions from the certificate. 4 Thus, where the statute required that the certificate should show that the grantor acknowledged that he signed, sealed and delivered the deed " on the day therein men- tioned, and the certificate contained no such recital, it was held that the omission was cured by reference to the deed, which bore the same date as the certificate. 5 words " for the consideration and purposes therein set forth " is fatal. Jacoway T. Oault, 20 Ark. 190; 88 Am. Dec. 494. A certificate that the grantors acknowl- edged a paper "to be their act and deed" instead of following the statutory form, that they "signed, sealed and delivered," etc., is sufficient. Den v. Ham- ilton, 12 N. J. L. 109. 1 Stanton T. Button. 2 Conn. Hornbeck v. Building Assn., 88 Pa. St. 64. Belcher v. Weaver, 46 Tex. 293; 26 Am. Rep. M7. Here the statute pro- vided tlmt the wife should acknowledge that she did " freely and willingly sign," etc.. while the form was that "she hud willinirly signed." etc.. omitting the word " freely." The court held tlmt the word fully iiiidit !>< omitted in the certificate, beauine it was omitted in the form. 4 Bradford v D.iwson. -J Aln Bradford v. DHWS..H. Ala. 208; Carter v. Chandron. 21 Ala. 72. SUFFICIENCY OF CONVEYANCE TENDERED BY THE VENDOR. 75 41. (s) Amendment of the certificate. It will doubtless occur to the reader that in most cases objections to the sufficiency of a certifi- cate of acknowledgment are capable of easy removal by the tender of a new certificate. It may be, also, that before the deed has been delivered by the grantor the officer may legally amend his certifi- cate, 1 though it has been held in some cases that after the paper has been signed and delivered by the latter his powers over it have ceased, and that he cannot fill up blanks, add to, nor change the instrument so as to make it conform to the law. 2 That he may not do this scarcely admits of doubt in a case in which the deed has been admitted to record. 3 But it is not easy to perceive any grounds upon which an amendment of the certificate made by the officer at the request of the grantor before the deed was delivered and accepted could be deemed insufficient or invalid, since the rights of no third person would be thereby affected, and such a request would be itself substantially a reacknowledgment of the deed. However this may be, the better course for the purchaser is to insist upon a reacknowledgment of the deed. 4 This, in most cases, would be as feasible as an amendment of the certificate, and would leave no pretext for an objection to the title on the part of future purchasers, ft is hardly necessary to say that the acknowl- edgment of a deed must be a matter of record and cannot be proved by parol testimony. 5 Nor can a certificate which is defective in a material particular be cured by evidence aliunde? Neither is parol evidence admissible to contradict a certificate of acknowledg- ment in a collateral proceeding. 7 But of course the certificate may be attacked in a direct proceeding on the ground that the acknowl- edgment was procured by duress or fraud. 8 The certificate must 1 There is a dictum to this effect in Elliot v. Piersol. 1 Pet. (U. S.) 328. Wedel v. Herman, 59 Cal. 507; Merritt v. Yates, 71 111. 639; 23 Am. Rep. 128. 3 Elliot v. Piersol, 1 Pet. (U. S.) 328; Hours v. Zachariah, 11 Cal. 281; 70 Am. Dec. 779, dictum, the deed in that case having been recorded before the amend- ment was made. 4 In Merritt v. Yates, 71 111. 636; 23 Am. Rep. 128, it is said that the only way in which the defective certificate can be remedied is by reacknowledgment & Pendleton v. Button, 3 Conn. 406; Hayden v. Westcott, 11 Conn. 129. "O'Ferrall v. Simplot. 4 Iowa, 381. 7 This principle is recognized by statute in Kentucky. Keith v. Silberberg, (Ky.) 29 S. W. Rep. 316. 8 Grider v. Land Mortgage Co.. 99 Ala. 281; 12 So. Rep. 775. 76 MARKETABLE TITLE TO KEAL ESTATE. set out in terms or in substance all that the statute requires. An acknowledgment certified to have been made " according to the act of the assembly in that case made and provided ? ' is insufficient. 1 42. Unauthorized reservations or restrictions. The pur- chaser may reject a conveyance which contains reservations, restrictions or conditions, not authorized by the contract under which the conveyance was drawn. 2 Thus, under an agreement by which he is to receive a " good and sufficient warranty deed," the i/urehaser may reject a deed which reserves an easement in the land to a third person, though lie knew of the existence of the easement at the time the contract was made. 3 So, also, where the deed contained an unauthorized reservation of a one-acre graveyard on the premises. 5 * The conveyance may le rejected if it does not include any ease- ment or servitude to which the purchaser may be entitled under the contract in other lands of the vendor. 4 The purchaser is not bound to accept a deed containing erasures, 5 nor one containing a blank, left for the consideration ' mone. A purchaser entitled to the covenants implied from the use of the words " grant and convey," cannot be required to accept a der, 75 X. J. Rq. loft, "1 All. 404. SUFFICIENCY OF CONVEYANCE TENDERED BY THE VENDOR. TT In a case in which the vendor leased the premises to a stranger after the sale, and the purchaser, by the terms of the contract, was entitled to a warranty deed, it was held that he might reject a deed purporting to be made subject to the lease, or describing the property as " being the same now occupied, by " the lessee, since those clauses might possibly be construed as excepting the lease from the operation of the warranty. 1 43. Waiver of Objections. The purchaser should make his objections to the deed, either in respect to form or substance, when tendered. If he fail in this respect it has been held that he thereby waives all objections. 2 And when the duty devolves upon the pur- chaser to tender a deed it has been held that the grantor must make his objection to the deed, if any, within a reasonable time. He cannot set up an objection to the deed for the first time when sued for a breach of contract or for specific performance. 2 If the purchaser takes possession and accepts a conveyance as satisfac- tory he cannot afterwards object that it is insufficient. 4 And if a deed be valid, but objectionable to the purchaser in form, he must, if he have an opportunity for inspection, make his objection at the time of the tender, or it will be waived. 5 In a case in which the purchaser took possession under a deed to which he made no objection, and afterwards refused to return the deed, it was held that he could not thereafter abandon the contract and recover back his deposit. 6 If the purchaser makes no objection to the deed when tendered, but merely says that he is unable to pay the purchase price, he will be held to have waived all objection to the deed, even though not drawn in conformity to the contract. 7 In such a case he will also be deemed to have waived any objection to specific performance, based upon the existence of an incum- 1 Bruner v. Diamond, 65 111. App. 476. 2 Moak v. Bryant, 51 Miss. 560; Dresel v. Jordan, 104 Mass. 407; Kenniston v. Blakie, 121 Mass. 552; Bigler v. Morgan, 77 N. Y. 312; Royal v. Dennison, 109 Cal. 558; 42 Pac. 39; Ellis v. Lockett, 100 Ga. 719; 28 S. E. 452. Groden v. Jacobson, 114 1ST. Y. Supp. 183, 129 App. Div. 508. 3 Morgan v. Stearns, 40 Cal. 434. 4 Griswold v. Brock, 43 111. App. 203. 6 Stryker v. Vanderbilt, 25 N. J. L. 68. Kenniston v. Blakie, 121 Mass. 552. 7 Moak v. Bryant, 51 Miss. 560. 78 MARKETABLE TITLE TO REAL ESTATE. hrance on the property at the time the deed was tendered. 1 If he retains the deed without objection to its sufficiency he cannot afterwards defend a suit for the purchase money, on the ground that the deed was not properly acknowledged. 1 The purchaser objecting to the form and contents of the deed tendered by the vendor, must allow a reasonable time in which the objections may l>e removed. 3 'Ashhauph v. Murphy, 90 111. 182. 'Morrison v. Faulkner. (Tex.) 21 S. W. Rep. 984. If a deed is defective for want of a seal or other necessary formality it will be reformed, even as gainst a purchaser for valuable consideration, if he had notice of the plain- tiff** riphtH. Ma-tin v. Halley, 61 Mo. 196; Wadsworth v. Wendell, 5 Johns. Ch. (X. Y.) 224. Oo. H. Paul Co. v. Shaw, 86 Kan. 136, 119 Pac. 546. CHAPTER V. CAVEAT EMPTOR GENERAL OBSERVATIONS. 44. APPLICATION OF THE MAXIM TO JUDICIAL SALES. Inherent defects of title. 45. Effect of confirmation of the sale. 46. Exceptions to the rule. 47. Fraud as it affects rights of purchasers at judicial sales. 48. Errors and irregularities in the proceedings. Collateral attack. 49. Want of jurisdiction. 50. Matters occurring after jurisdiction has attached. 51. Fraud as ground for collateral attack. 52. SALES BY EXECUTORS AND ADMINISTRATORS. Sales in pursuance of testamentary powers. 53. Sales in pursuance of judicial license. 54. Fraud on the part of personal representative. 55. "Want of jurisdiction. Errors and irregularities. 56. SHERIFF'S SALES. Want of title in execution defendant. General rules. % 57. Exceptions. 58. Fi'audulent representations. 59. Rights of purchaser from purchaser under execution. 60. Title under void judgment. 61. Title under void sale. 62. TAX SALES. 63. SALES BY TRUSTEES, ASSIGNEES, ETC. 64. SUBROGATION OF PURCHASER AT JUDICIAL AND MINISTE- RIAL SALES. Where the sale is void. 65. Where the sale is valid. 66. 44. GENERAL OBSERVATIONS. The maxim caveat emptor (let the buyer beware), as it respects titles to land, is peculiar to the common law. It is unknown to the civil law. 1 The principal appli- cations of the maxim are : (1) In the denial of relief to a purchaser of lands who has accepted a conveyance of a defective title without covenants of indemnity from the grantor ; 2 (2) In charging a pur- chaser with laches or negligence in failing to avail himself of means 1 Co. Litt. 102a; Brown Leg. Max. 768. 1 Phillips v. Walsh, 66 N. C. 233. [79] bO MAKKETAISLK TiTI.K Tl KKAI. ESTATE. for ascertaining the validity of the title ; ' (3) To designate a class of caries in which it is conclusively presumed that the purchaser agreed to take just such title as the vendor had, and in which he is required to pav the purchase money, though the title which he is to receive will he utterly worthless, and though the contract still remains executory. As a consequence of this doctrine, in the latter class of cases no contract on the part of the vendor that his title is good and indefea.-ihle will be implied from the mere relations of the par- ties, contrary, us we luive seen, to the general rule when the vendor contracts in his own right. It is to this class of cases that oar atten- tion will be directed. Of the two first-mentioned class of cases there is nothing to be observed here, the obligation of the purchaser to protect himself by covenants for title, or by searches for defects, l>cing elsewhere considered in this work. The cases to which the rule caveat emptor applies, in the sense' that the purchaser will be deemed to have entered into the contract with the understanding that he is to take the title, such as it is, with- out an express contract to that effect, are those in which the pur- chase was made at (1) judicial sales; or (2) ministerial or fiduciary sales; that is, sales by executors, administrators or other personal representative! under judicial license ; sales by executors and admin- i.-trators under powers conferred by the will; sales by trustees and mortgagees; sales by tax collectors, and generally any sale in which the vendor acts not in his own right, but in a fiduciary (>r ministerial character, and from whom the purchaser has no right to require general covenants for title. 4*. APPLICATION OF THE MAXIM TO JUDICIAL SALES. Inherent defect* in the title. A judicial sale may be described to be a sale made by an officer of a court of justice in pursuance of an order or decree of *uch court, and which remains incomplete until ratified or confirmed by the court. 3 The commissioner or other officer making the sale is the mere agent of the court to receive and report the purchaser's bid. 8 Objections to the title by a purchaser at a judicial sale are either such as are founded upon want of jurisdiction, or errors and irregularities in the proceedings resulting 1 PhilHfw T Wnhh. Aft N ('. 288. I>n*tirh v Stein. 41 Ohio St. 70. * Ilolirinao T. Cook. 19 Md. 875. CAVEAT EMPTOB. 81 in the decree under which the purchase is made, or such as are founded upon inherent defects in the title independent of such pro- ceedings, for example, the existence of a better title in a stranger than that which the court undertakes to sell. In either case objec- tions to the title must be made before the sale is confirmed. 46. Effect of confirmation of the sale. It has been said that the doctrine caveat emptor applies in all its force to judicial sales, that is, that it will be conclusively presumed that the purchaser con- tracts to take the title, such as it may be. 1 This presumption, how- ever, does not apply until the sale has been confirmed. The pur- chaser may always resist the confirmation of the sale on the ground that the title is bad, 2 and he may have a reference to a master to 'Rorer Jud. Sales (2d ed.), 150, 174, 476, 528, 602, 694, 923. Corwin v. Benham, 2 Ohio St. 36. Hously v. Lindsay, 10 Heisk. (Tenn.) 651. Brown v. Wallace, 4 Gill & J. (Md.) 479. Casbon v. Faina, 47 Mo. 133; Stephens v. Ells, 65 Mo. 456. The reasons for this rule are set forth in the following extract from the opinion of the court in Bishop v. O'Conner, 69 111. 431: " In all judicial sales the presumption is that as the rule ca,veat emptor applies, the purchaser will examine the title with the same care that a person does who receives a conveyance of land by a simple quit-claim deed. When he knows there are no covenants to resort to in case he acquires no title, the most careless, saying nothing of the prudent, would look to the title and see that it was good before becoming a purchaser at such sale. Or if not, he must expect to procure it on such terms as he might sell the claim for a profit. As well might a person purchasing by quit-claim deed file a bill to be reimbursed on the failure of title as where the purchase is made at a sale by an administrator. Both kinds of purchase depend upon the same rule. It is the policy of the law only to invest a sheriff, master in chancery, or administrator in making sales of real estate with a mere naked power to sell such title as the debtor or deceased had, without warranty, or any terms except those imposed by law. They are the mere instruments of the law to pass such, and only such, title as was held by the debtor or intestate. Then, if the pur- chaser in this case observed but ordinary prudence, he had the title, and, as a part of it, the proceedings under which he purchased, examined, and whether so or not, we must presume that he determined to take the risk of the title upon himself. We have no hesitation in saying that the rule of caveat emptor applies in this case in full force." 5 Sugd. Vend. (8th Am. ed.) 152; Freeman Void Jud. Sales, 48; Rorer Jud. Sales (2d ed.), 165; Fryer v. Rockefeller, 63 N. Y. 268; Trapier v. Waldo, 16 So. Car. 276; Toolc v. Toole, 112 N. Y. 333; Bird v. Smith, 101 Ky. 205; 40 S. W. 571. This proposition appears to have been limited, in Pennsylvania, to cases in which the purchaser has been deceived or misled. De Haven's Appeal, 106 Pa. 82 MARKETABLE TITLE TO REAL ESTATE. determine whether a good title can be made. 1 But if lie permits the sale to be confirmed without objection, he cannot afterward* refuse to pay the purchase money because of imperfections in the title,* or irregularities in the proceedings under which he pur- - ..: dti - 9efaug> Appml. I4\V. N C I'.-, 4;-. Binfurd's Appeal, IMF* St. 435; 30 All. Hep. 298. At a judicial sale the purchaser buys at his peril, as in ordinary sales under execution, the only difference being that in sales by the chancellor through his commissioner the purchaser may have relief for defective title before the sale is confirmed, but not after. Humphrey v. Wade, 84 Ky. 391: 1 S. W. Rep. 648. A purchaser at a judicial sale cannot, in case of the existence of judgnu m creditors not before the court, be required to complete his purchase without their concurrence. Governor of Hospital v. West. Imp. Cominrs.. 1 DeG. & J. 531. \l< must see that all judgment creditors have come in under the decree, for those who have not done so may subject the land in his hands to the payment of their judgment. 2 Sugd. Vend. (8th. Am. ed.) 156 (521). Rule mrtiit tmptor does not apply at judicial sale us at execution sale, until after confirmation. Charleston v. Blobme, 15 So. Car. 124: 40 Am. Rep. 690. 1 2 Jones Mortgages, 1648; Rorer on Jud. Sales (2d ed.), 150; Gordon v. 2 Mi-Cord Ch. (S. C.) 151. In England the title is directed to be invest! gated before a sale in chancery is made. 1 Sugd. Vend. (*th Ain. ed.) 13. The court ( ontirnis judicial sales, and in so doing exercises large powers in correcting errors. Reasonable time is always given for the examination of title, and, if necessary, a reference will be ordered. Mitchell v. Pinckney, 13 So. Car. 203, The right of the purchaser to have a reference of the title is denied in Anderson v F..ulk. . 2 Harr. & G. (Md.)348, 858. In re Browning, 2 Paige Ch. .X. Y.) 64, a referem of title was dint-ted on the application of the purchaser afUr flrninti.n of the sale. 2 Jones on Mortgages, 1647; Freeman Void Jud. Sali- i 4-. Wood v. Mason, SSumn. tl'. S.1318. Tbrelkeld v. Campbell. 2 Grat. (Va.) 198; 44 Am. Dec. 384; Thomas v. David on. 76 Va. 338; Hickson v. Rucker, 77 Va. 135: Long v. Weller, 29 Grat. WaUon T. Hoy. 28 Grat (Va.) 698; Young v. McClung, 9 Grat. (Va.) 336; Daniel r. Leitch. 13 Grat. (Va.) 195. tiin-_'s v. .Tonkin-. M Al.-i. _' Vi : IVrkins v. White. 7 Ain. S.'>.~>. \\illiann v. Glenn, 87 Ky. 87; 7 S. W. Rep. CIO; Fox v. McGorfwin. 21 K>. !. i:. IT: W. :>15. ;nt. JJ Knn. 344. liarron v. Mullin. 21 Minn. 374. Drrabach v. Stein. 41 Ohio St. 70. Capehart r. Dm\.-ry. 10 W. Va. 130. \\ i'lianuton v. Ki.-l.l. 2 Sandf. Ch. (N. Y.) 583; Hammond v. Chamberlain. W. 718. In Uorrr on .fii'ln 2el ed. J K,M it i- -..ii-1 th.M M - I' -i-- 1 ! tho rule tevt'i r tlio (jmlioii' f the pur- eluu monrjr m v of the dr-<|. i; ..> fmii4 MARKETABLE TITLE TO REAL ESTATE. a* where the defect apj>ears from records or documents accessible to him. 1 A purchaser at a judicial sale is presumed to have notice of a want of jurisdiction appearing from the record of the proceed- ings under which he purchased. 8 It is to he observed that the maxim caveat emptor applies as well in equity as at law. Failure of title under judicial or ministerial sales, apart from any question of fraud, mistake or surprise in the procuration or rendition of the judgment under which the sale was made, or fraud or mistake in the sale itself, affords, after confirmation of the sale, no ground for relief in equity against the obligation of the contract. 3 A pur- chaser at a judicial sale may, before confirmation, raise the objec- tion that the title is unmarketable ; he is not bound to show that it is absolutely bad. 4 He can-not be required to take a title which he must support by bill of injunction against a third person. 5 Generally, a purchaser by private contract cannot be compelled to take an equitable title,' but the rule is otherwise, at least in England, in case of purchases under decree in chancery. 7 A purchaser at a judicial sale cannot, of course, object, after confir- mation of the sale, that the title is unmarketable or doubtful. 8 1 Smith v. Winn, 38 8. Car. 188; 17 S. E. Rep. 717. 1 Campbell v. \fr-Caban. 41 111. 445. It is the business of a purchaser at a judicial Hale to see that all the persons who are necessary tn convey the title are before the court, and that the sale is made according to the decree. 2 Daa. ( h. Pr. 1456; Daniel v. Leitcli, 13 (5 rat. (Va.) 195. 'Long v. Waring. 25 Ala. 625; McCartney v. King, 25 Ala. 681: Holmes T. Sharer, 78 111. 578; Hand v. Grant, 10 Sm. & M. (Miss.) 514; 43 Am. Dec. 528. A purcliaser at a judicial sale cannot enjoin the collection of the purchase money on the ground that the title has failed. McManus v. Keith, 49 111. 388; Threlkehl v. Campbell, 2 Grat. (Va.) 198; 44 Am. Dec. 384. *& post, chapter 31, where, also, is considered what matters render a title doubtful. Handy v. Waxter, (Md.) 23 Atl. Rep. 1035; McCaffery v. Little, 20 App. D. C. 116; Trust Co. v. Muse, 4 App. D. C. 12. 1 Sugd. Vend. (8th Am. ed.) 593; Shaw v. Wright, 3 Ves. 22. 4 Pout, rh. 30. ' 1 Kngd. Vend. (8th Am. ed.) 152. The rule that a purchaser will not be compelled to take an equitable title does not extend to estates sold under the dacvw of a court of equity, where the legal title is Tested in *n infant. 1 Sugd. Vend. 592, at y. 604, it is said that this " anomaly " ia removed by rtatvtr, enabling the court to make a pood title. In Bryan v. Read, 1 Dev. & Bat. Kq. (X. C.) 78, 86, it was held that a purchaser at a judicial sale umlrr decree against an infant could not be compelled to complete the con- tract, berau> the infant might *how cauw against the decree when of age. Boorum v. Tucker, (X. J. Eq.) 26 Atl. Rep. 456. CAVEAT EMPTOR. 85 The rule caveat emptor applies as well to incumbrances as to defects of title proper. After confirmation of the sale the exist- ence of an incumbrance upon the premises is no ground for detain- ing the purchase money, nor for recovering it back from the plaintiff in the suit in which the sale was made, 1 though, as will hereafter be seen, the purchaser will in some cases be subrogated to the rights of such plaintiff against the property purchased, or to the benefit of the lien, claim, or incumbrance that he has been compelled to pay to perfect his title, or to the satisfaction of which the purchase money paid by him has been applied. 2 While the purchaser may resist the confirmation of the sale on the ground that the title is defective, he will not be relieved from his bid if the title can be perfected within a reasonable time. 3 The rule that the vendor may perfect the title where time is not of the essence of the contract especially applies in eases of judicial sale. 4 He may also be required to take the title, with compensation or abatement of the purchase money, in case of failure of title to a small portion of the property not material to the enjoyment of the rest. 5 The objection that there are liens on the property cannot be made where the lienholders are parties to the suit in which the property was sold, with a right to have the proceeds applied to the satisfaction of their liens. 6 47. Exceptions to the rule caveat emptor. It is true, as a general rule, that a purchaser at a judicial sale cannot detain or have restitution of the purchase money on the ground that the title is defective, after the sale has been confirmed. But exceptions have been made to this rule in cases of mis-taken or fraudulent 1 Farmers' Bank v. Martin, 7 Md. 342; Farmers' Bank v. Peter, 13 Bush (Ky.), 594; Williams v. Glenn, 87 Ky. 87; 7 S. W. Rep. 610; Worthington v. McRoberts, 9 Ala. 297. 2 Post, this chapter, "Subrogation," 65, 66. "Ormsby v. Terry, 6 Bush (Ky.), 553. 4 Thomas v. Davison, 76 Va. 342. In Lamkin v. Reese, 7 Ala. 170, it was held that though the court had no jurisdiction to order a sale of the land, yet, if the purchaser went into possession he could not, after the lapse of two years, rescind the contract if the heirs were then able and willing to make him a title. 5 Riggs v. Pursell, 66 X. Y. 193; Merges v. Ringler, 54 JST. Y. Supp. 280; 34 App. Div. 415. Blanton v. Ky. Distilleries, etc., Co., 120 Fed. 318. 86 MARKETABLE TITLE TO REAL ESTATE. representations as to the title by the officer making the sale, and where the fund arising from the sale remains under the control of the court Thus, where an officer of the court, selling under a decree, advertised the title to be indisputable, and the purchaser afterwards discovered that there was in fact no title, it was held that the court must, even after confirmation of the sale, the pur- chase money not having been distributed, vacate the sale on peti- tion of the purchaser, and direct that the purchase money be refunded to him. 7 And it has even been held, irrespective of the question of fraud or mistake, that if, while the fund is yet in court, the purchaser should be disturbed in his possession, or exposed to disturbance by one having a clear paramount title to the estate, which was unknown to the purchaser at the time of the sale, the sale should be rescinded, and the purchase money restored to the purchaser. 2 The same case decides that if the purchase money has been distributed by the court, the purchaser can have no relief. It has been held that the rule caveat emptor does not apply to cases in which the court had no jurisdiction to direct the sale at which the purchaser bid, and that in such a case the purch;is< r 1 Preston v. Fryer, 3S Md. 221. In this case it appeared that a married inn had conveyed her separate estate to her husband, and afterward died l.efon- hrr lm.-l.and. On the death of the husband suit was brought fnr -air I the land and distribution of the proceeds among his heirs. The deed 1<> t lu- ll ucband was a nullity, but the officer of the court advertised tin- 1itl<- t jndiriul sales in other jurisdictions. While there is no warranty at a judicial sale, yet, if the purchaser when sued for the pur- chase money ran show tlmt at the sale there were misrepresentatit>n- the thing sold, whether wilful or not, he may set up sudi misrepresentation.; * u "M. Charleston v. Blohme, 15 So. Car. 124: n Am. Rep. 690. ritinir State v. Halliard. 2 Bay (S. C.K 11; 1 Am. I'- ftfe*M rirkoll. '2 Hill (S. ( ... 057; Adams" v. Kibler. 7 So. Car. 5S; Mil. 'hell v. Pii '03. ' 'ilei.n v. Clapp. 1 1 Gill A .T. (Md.) 1. This holding is largely nbilrr (!irfn>,,. a the pur'-hac money in the case had not been paid, ami the rase itself \\.i- an appeal from an order confirming the sale as against the purrha-ei-'-i objection* to the title. The rule announced neems eminently just and cc|tii- table. but it einin-.t I*- c.i-ily reconciled with the general rule that a pun lia-er at a judicial nale cannot be relieved from bin bargain after confirmation of .ind that the title has failed. CAVEAT EMPTOE. 87 might have restitution of the purchase money even after confirma- tion of the sale. 1 And, generally, it has been held that a purchaser at a judicial sale which is void for want of jurisdiction in the court to order the sale, or for other cause, may resist the payment of the purchase money, even after the purchaser's bid had been accepted by the court. 2 There can be no confirmation of that which is void. We have elsewhere attempted to show that this eminently just and equitable doctrine is inconsistent with the rule caveat emptor, as the purchaser may inform himself of the want of jurisdiction by examining the proceedings in the cause. 3 Nor does the rule apply where there was no such land in existence as the officers of the court undertook to sell. 4 Nor where the premises were in the possession of one claiming adversely at the time of the sale, the purchaser and the parties being ignorant of such person's claim, or that he intended to retain possession. 5 The purchaser will not 1 Boggs v. Hargrave, 16 Cal. 559; 76 Am. Dec. 561, citing Darvin v. Hill- field, 4 Sandf. Sup. Ct. (N. Y.) 468; Kolher v. Kolher, 2 Edw. Ch. (N. Y.) 69; Post v. Leet 8 Paige (N. Y.), 337; Seaman v. Hicks, 8 Paige (N. Y.), 655; Brown v. Frost, 10 Paige (N. Y.), 243; Shively v. Jones, 6 B. Mon. (Ky.) 275. This is doubtless true in any case in which the court was with- out jurisdiction of the person of the defendant, or in which the suit was of a kind of which the court could not take cognizance. But in the principal case the objection to the jurisdiction was that the defendant had no title to the property; that the title was outstanding in one who had not been made a party, and the objection was sustained, and the purchaser permitted to recover back the purchase money. Such a principle goes far towards destroying altogether the application of the maxim caveat emptor to judicial sales that have been confirmed, since in most instances the purchaser seeks relief on the ground that the title is outstanding in a stranger. 2 Freeman Void Jud. Sales, 48; Todd v. Dowd, 1 Mete. (Ky.) 281; Carpenter v. Strother, 16 B. Mon. (Ky.) 289; Barrett v. Churchill, 18 B. Mon. (Ky.) 387. 3 Post, this chapter, 61. 4 Strodes v. Patton, 1 Brock. (U. S.) 228, per MARSHALL, C. J. A decree directed the sale of the lands whereof H. died " seized and possessed." The officers of the court at the time of the sale exhibited certain conveyances to H., but disclaimed any responsibility for quantity or title, and declared that the purchaser must buy at his risk. It appeared that H. had never been seised of one of the tracts so conveyed, and was not entitled to anything by virtue of the conveyance thereof. The sale was treated as having been made without authority, or by mistake, and the purchasers were relieved, even after confirmation. 5 McGown v. Wilkins, 1 Paige Ch. (N. Y.) 120, the court saying: "This is not like the case of a sale by the sheriff on execution. There the court never gives possession to the purchaser, even as against the party to the suit. 88 MARKETABLE TITLE TO KKAL ESTATE. be deprived of his right to reject a defective title, and enjoin the collection of the purchase money, where he has been led by the con- duct of the parties to postpone a motion to set aside an order con- firming the sale, until after the close of the term at which the order was made. 1 The rule that a purchaser at a judicial safe cannot, after the sale has been confirmed, refuse to pay the purchase money on the ground that the title is defective, is salutary where the objection is merely that the title is unmarketable, 2 or where there is no probability that the purchaser will ever be disturbed ill his possession, and the alleged imperfections have been ferreted out a? an excuse for the detention of the purchase money. But where there is a clear and palpable failure of the title, as where the pur- chaser has been evicted by an adverse claimant, or where the rights of the holder of the paramount title are being asserted, or will inevitably be asserted, by hostile proceedings, it would seem that neither the ends of justice nor of legal policy or convenience can be subserved by compelling the purchaser to pay his money into court, when the court can give him nothing in return. Accord- ingly, in several such cases, not only has the purchaser been per- mitted to detain the unpaid purchase money, but restitution thereof has been made to him where the fund accruing from the sale remained undistributed in the hands of the court. 2 In other cases, a distinction has been made between sales in partition, or other voluntary sales, and those in which the sale is to com- pel the payment of a debt, holding in the former case that the purchaser may detain the purchase money, and in the latter that he must pay it though evicted by title paramount 4 The proposi- J Morrow v. Wessell, (Ky.) 1 S. W. Rep. 439. ' \Virthington v. Mi-Robert , 9 Ala. 297. In Mahoney v. Allen, 42 X. Y. Supp. 11, the purchaM-r was permitted to make objection* of that kind after the tale was confirmed. Prwton v. Fryer, 38 M.I. 221. Boggs v. Hmrjirave. 16 Cal. 559; 76 Am. Dec. 561. Weemfl v. Lore Mfg. Co., 74 Mis. 831; 21 So. 915. See, also. CkarUuton v. BhJune, 16 So. Car. 124 ; 40 Am. Hep. 690. The cane of Glenn v. Clapp. 11 Gill & J. ( Ml. 1, has been cited to UUH point, but an examina- tion of that cane shows that the purchaser's objections to the title were made before confirmation of the sale. See Korer on Jud. Sales (2d ed.), 78. 'Latimer v. WhartoD. (So. Car.) 19 S. K. Rep. 855. Here the purchaser in a suit for the administration of the aect to the maxim <-.<-. .'itil. 1 Eccloj v. Timmons, 95 N. Cur. 51(1. Kven though tin- purchaser \\as fraudu- lently indueed to hid. Norton v. N.-l, J.mn A: Tr Co., 80 NYb. 4<>G. .".:: N \\". Rep. 4*1; 58 N. W. Kep A rigorous application of the d />fr to judicial sales is found in Kvans v. I>.-ml\. v! Spmr (S. Cur.). '.'. |:i Am. !><. :'M. \\ln-iv it \\.-ts hold th:,t a pim-luuxT und.-r u decree in partition l.d wc.-n heirs \\lio 1ms h, en evictetl l>y title |inniiiiitiiiit. - 1 ' '1 hi- caw holds thai u hen a court deeree-, tin- vile o! land it CAVEAT EMPTOR. 91 of one claiming under such purchaser, is either: (1) Fraud antece- dent to the sale, such as fraud in the procuration or rendition of the judgment or decree in pursuance of which the sale is made ; (2) Fraud in the sale itself, such as collusion between the officer selling and the purchaser, by which the property is sacrificed ; and (3) Fraud on the part of the officer selling or parties in interest in falsely stating the condition of the title, with intent to deceive. In the first two instances the sale is open to collateral attack by the party injured and by the purchaser himself ; fraud in these respects is considered in a subsequent section of this work. 1 In the last instance there are cases which hold that if the purchaser at a judi- cial sale has been induced to bid by the fraudulent representations or concealment of facts respecting the title on the part of the officer or of others interested in making the sale, he will be relieved in equity from his bid, after confirmation of the sale. 2 But even in a case of misrepresentation as to the title, the purchaser cannot avoid the sale unless he can show that he could not have discovered the fraud with reasonable diligence. 3 Thus, where the pleadings in a suit to foreclose a junior mortgage showed the existence of the prior mortgage, and the purchaser at foreclosure sale in the suit was induced to bid by the representations of the officer making the sale and by the clerk of the court, that there was no prior lien on the property, it was held that he could not be relieved from the contract, as he might easily have informed himself of the true state of the title by examining the pleadings. 4 is the duty of the officer selling to offer a good title to the land. In Miller v. Fee- zor, 83 N. C. 192, citing Shields v. Allen, supra, it was said that the maxim cateat emptor did not apply to judicial sales in North Carolina. 1 Post, this chapter, 52. 2 Rorer on Jud. Sales (2d ed.), 175; Preston v. Fryer, 38 Md. 221; Mervine v. Vaulier, 3 Halst. Ch. (N. J.) 34, semble ; Bishop v. O'Connor 69 111. 431, (lii't'un. "While there is no warranty at a judicial sale, the purchaser when sued for the purchase money may set up misrepresentations as to the title as a defense. Charleston v. Blohme, 15 So. Car. 124; 40 Am. Rep. 690; Mitchell v. Pinckney, 13 So. Car. 203. Statements in a bill for partition that complainants are the owners of the property, are no such fraudulent representations as to the title by those interested in a sale of the property as will entitle the purchaser to relief. McM-mus v. Keith. 49 111. 388. 3 Williams v. Glenn, 87 Ky. 87; 7 S. W. Rep. 610. 4 Norton v. Neb. Loan & Tr. Co.. 35 Neb. 466: 53 N. W. Rep. 481; 58 id. 95& MARKETABLE TITLE TO REAL ESTATE. will the purchaser be relieved if with knowledge of the fraud lie permits the sale to be continued without objection. 1 There are cases also which hold that the officer making the sale has no right to make representations concerning the title, and that, there- fore, the purchaser has no right to rely on them, and will not be entitled to relief if he should. 2 The purchaser may of course resist confirmation of the sale on the ground that he was induced to bid by fraudulent or mistaken representations as to the state of the title. 3 49. Errors and irregularities in the proceedings. Collat- eral attack. Errors and irregularities in judicial proceedings are either such as render the judgment or decree therein pronounced absolutely null and void, or such as render them voidable only. A judgment rendered against one who has not been brought before the court by due process of law is absolutely void. 4 A judgment founded upon a misconception of the law of the case, the court having acquired jurisdiction of the parries, is voidable only. 5 A void judgment is open to collateral attack. A voidable judgment can be vacated or annulled only upon appeal or writ of error, or in some direct proceeding between the parties. 6 It seems to l>e settled 1 Fore v. McKenvno. 5R Ala. 116. Vandever v. Baker. 13 Pa. St. 136; Slowthower v. Gordon, 1 Md. 1, where it wit* Kiiid tlmi t.ln-i-1- is no relation of trust and confidence between the officer making a judicial salt- ami tip- purchaser. Vceder v. Fonda. :* r-iiiro (N. Y.), 94; Seaman v. Hicks, s I'aipe (N. Y.), 056; McGown v. Wilkinx 1 I'aiire een given in the notes below, in which the title of a purchaer, immediately or derivatively, under a judicial sale, lias Ixjen called in question on the ground of errors and irregularities in the proceedings, and in which the objection has been held untenable. 1 It must suffice to say here, generally, that insufficiency of the evidence to sustain the judgment ; error of the court in applying the law to the facts ; want of parties, where the objection is made by one bound by the judgment ; defects or irregu- larities in the process or service of process, other than absolute want 1 In Perkins v. Fairfield. 11 Mnss. 227. a title under a sale by administrators by virtue of a license from the court, was held good against the heirs of the intestate, although the license waft granted upon a certificate from the judge of probate, not :iutlmri/.-il by the circumstancei) of the cnsc. A purchaser at a judicial sale can- not object to the title on the ground that more of an estate was .-*! 1 than was nwcssary to satisfy the decree, " the decree being a sufficient security to him, as it cannot appear but that it was right to sell the whole." 1 Sugd. Vend. 68; Daniel v. Leitch, 13 Oral. (Va. ) 195, 210. Irregular service of summons does not affect the title of a purchaser at a judicial sale. Upson v. Horn, 3 Strobh. Eq. (8. ('.) 10H; 49 Am. Dec. 633. Failure to revive a suit for partition in the name of the heirs of one of the complainants who died after decree for, but before date <>f aulc of the lands, will not render the sale void, nor impair the title of a purchaser thereunder. Schley v. Baltimore. 29 Md. 34. In Derr v. Wilson, K4 Ky. 14, it was contended that a court had no power to order a sale of a homestead, subject U> the life interest of the delitor, and that such a judgment was void for want of jurisdiction, hut it wan held that while the court erred in making the order, it h nl jurisdiction of the parties and subject-matter, and that, therefore, the judg- ment and the title of the purchaser thereunder could not be collaterally attacked. Where judgment wax entered for the full amount of a penal bond instead of the damag*** fora breach of the bond, awarded by the jury, it was held error, but not such as i-mild affect the title of a purchaser under the judgment. Wale* v. Bogue. 31 III. 404. A deTee in chancery against unknown heirs is not void because no affidavit was filed that they were unknown. It is voidable only on apjx*l. Hynes v. Oldliam. 3 T. B. Mon. (Ky.) 2(M5; Benningfleld v. Heed. 9 B. Mon. (Ky.) 102. If a guardian ml litfin IK- appointed for an infant and he actually answer*, a decree based thereon will not !< absolutely void, though there was no actual judicial notice of the suit given the infant. Bustard v. Gates, 4 Dana (Ky.), 4&: Iteuk t". H. v. Cochran. 9 Diuia (Ky.). 39T : Bcnningfield v. Heed, H B. Mon. (Kjr.) 1O>. A nUttute providing that lieforea sale JH ordered in partition the court CAVEAT EMPTOE. O,J of service ; legal disability of a party, according to the preponder- ance of authority; judgment for an excessive amount; mistakes and clerical errors in the rendition or entry or judgment, or other like matters, cannot be availed of, in a collateral proceeding, to invalidate a title held under a judicial sale. 1 50. Want of jurisdiction. The only grounds, it seems, upon which a judgment of a court of record can be attacked in a collat- eral proceeding are want of jurisdiction in the court to render the judgment, and fraud, mistake or surprise in the procuration of the judgment. 2 Jurisdiction is either : (1) Of the person of the defend- shull appoint some one to represent infant parceners, is directory only, and a failure to appoint such a person does not deprive the court of jurisdiction and render its judgment void. Robinson v. Redman, 2 Duv. (Ky.) 82. The fact that a mortgagee, before proceeding to foreclose, executes a bond whose con- dition does not conform to the statute, will not avoid the jurisdiction of the court to confirm the foreclosure sale nor affect the title of a purchaser thereat. 'Cockey v. Cole, 28 Md. 276; 92 Am. Dec. 684. The fact that commissioners in partition do not make their report under seal, as required by statute, will not invalidate a title thereunder upon collateral attack; such an irregularity could be taken advan- tage of only, if at all, by proceedings in error. Lane v. Bommelmann, 17 111. S5. Failure to direct a sale in inverse order of alienation is not such error as affects the jurisdiction and avoids the sale. Jenks v. Quinn, 137 K Y. 223; 33 N. E. Rep. 376. Where the record in a proceeding by an administrator to sell decedent's lands for the payment of his debts, affirmatively shows that the court has jurisdiction to order the sale, that the land was sold under order of, and was approved by the court, and that a deed under like order was executed to the purchaser, it was held that the action of the court, being in the nature of a proceeding in rem. could not, though abounding with errors and irregularities, be collaterally impeached. The failure to give the statutory notice by citation to the heirs, and the absence of proof by the record that the guardian fid liiem of the minor heirs accepted the appointment, or that he filed an answer denying the allegation of the petition, or that the commissioner of sale ga,ve proper notice of the time and place of sale are mere irregularities, which might furnish good grounds of reversal on error, but which could not invalidate the sale, when collaterally attacked, if the record affirmatively showed that the court had jurisdiction. Saltonstall v. Riley, 28 Ala. 164; 65 Am. Dec. 334. 1 See Black on Judgments, 261 et seq. 5 Post, 52. The court must have jurisdiction of the subject-matter and of the parties to render its judgment valid on collateral attack. Commercial Bank v. Martin, 9 Sm. & M. (Miss.) 613. " Jurisdiction may be defined to be the right to adjudicate concerning the subject-matter in a given case. To constitute this there are three essentials: First, the court must have cognizance of the class of cases to which the one adjudged belongs; second, the proper parties must be 13 98 MAKKETAlil.K T1TI.K TO KEAh ESTATE. ant ; J (2) of the subject-matter of the suit : < 3 of the res, or prop- erty in contest. 2 Want of jurisdiction in one or more of these J ' respects is not necessarily fatal to the judgment of the court if it have jurisdiction upon other grounds. Thus, a proceeding against a non-resident defendant by which it is sought to attach his lands within the territorial jurisdiction of the court is essentially a pro- ceeding in /'f-m, and the fact that proceedings by publication to bring the defendant before the court are too defective for that pur- pose will not affect the validity of a judgment or decree for the sale of the land and the title of a purchaser thereunder. 3 The converse of the foregoing proposition, that is, that the existence of jurisdic- tion upon one or more grounds does not necessarily validate a judg- ment if jurisdiction upon another ground be wanting, is also true. Thus, in a suit for the administration of a trust, the court may have jurisdiction of the cause of action and of the persons of the defend- ant;, but if jurisdiction of the rex IKJ wanting, for example, if the present; and, Ihinl, the point decided must be, in substance and effect, within the issue." Munday v. Vail. 34 X. .T. Law, 422. 1 Cooper v. Reynolds, 10 Wall. (U. S.) 308, 316. The text is grounded upon the distinctions formulated by Mr. Justice MILLER in this case, as follows: " It is as easy to give a general and comprehensive definition of the word jurisdiction as it is difficult to determine in special cases tbe precise conditions on which the right to exercise it depends. This right has reference to the power of the court over the parties, over the subject -matter, over the re* or property in contest, and to the authority of the court to render the judgment or decree which it assumes to make. By jurisdiction over the subject-matter is meant the nature of the cause of action and of the relief sought; and this is conferred by the sovereign authority which organizes the court, and is to be sought for in the general nature of ita powers, or in authority specially conferred. Jurisdiction of the person is obtained by the service of process, or by the voluntary appearance of the party in the progress of the cause. Jurisdiction of the re* is obtained by a seizure under process of the court, whereby it is held to abide such order as the court mny make con<-crning it. The power to render the decree or judgment which the court may undertake to make in the particular cause, depends upon the nature and extent of the authority vested in it by law in regard to tbe subject- mutter of the cause." * BUck JudgmU, $ 240. Cooper v. Reynold*, 10 Wall. (V . S.i 3(W; Voorhees v. Bank of I*. S., 10 Pet. (U. 8.) 449. The*c nre leading cases, and in them it win* held that defects and irregularilic* in the affidavit and publication of notice in proceedings by attach- ment* agnitiAt Don-resident*, and the fact that the record docs not show compli- ance with all the M-ittilnry requisite* in such CARTS, did not go to the jurisdiction of the court, and \v want f jiH-dir-t!on. CAVEAT EMPTOR. 103 jurisdictional facts would in effect neutralize the rule that where the record is silent as to such facts their existence will be conclu- sively presumed. Evidence dehors the record cannot be admitted to show want of jurisdiction. Objections to title founded upon want of jurisdiction in a court to enter a judgment or decree under which the title is derived are materially limited and restricted by two rules of law, which it is important to bear in mind. The first rule is, that if jurisdiction do not affirmatively appear from the record itself, evidence dehors the record, that is, extraneous evidence, will not be received to show that in fact the court had no jurisdiction. It will be conclusively presumed, except where the record itself shows the contrary, that there was a concurrence of all things necessary to give the court jurisdiction according to the maxim omnia praesumuntur rite et solenniter esse acta. 1 Especially will such a presumption be made 1 Black on Judgments, 271, 273, 276. Thompson v. Tolmie, 2 Pet. (U. S.) 157; Grignon v. Astor, 2 How. (U. S.) 319; Parker v. Kane, 22 How. (U. S.) 1; 4 Wis. 1; 65 Am. Dec. 483. Duncanson v. Hanson, 3 App. Cas. (D. C.) 361. Henefee v. Harye, (Va.) 4 S. E. Rep. 726. Where a statute required that notice of levy of an execution on land should be served on the execution defendant five days before the term of court to which the execution must be returned, it was held that it will be conclusively presumed from rendition of the judgment that such notice had been given. Burke v. Elliot, 4 Ired. L. (N. C.) 355; 43 Am. Dec. 142. Where the record shows that process was ordered against infant defendants, and that at a following term a guardian ad litem was appointed, it will be presumed, on collateral attack, that such defend- ants were brought regularly into court, though no actual service of pro- cess on them appears. Thompson v. Doe, 8 Blackf. (Ind.) 336; Brack- enridge v. Dawson, 7 Ind. 383. See, also, Horner v. State Bank, 1 Ind. 130: 48 Am. Dec. 355. A title under a decree in a suit for specific performance against infant defendants will not be declared invalid in a collateral proceeding on the ground that the record does not show notice to the infants, they having been rep- resented by guardian ad litem. Horner v. State Bank, 1 Ind. 130; 48 Am. Dec. 355. If the record shows that a guardian ad litem was appointed for infant defendants "on motion," but does not show on whose motion, it will be presumed that the infants were present in court when the motion was made, and that they had notice of the proceeding. Thompson v. Hart, 8 Blackf. (Ind.) 336; Horner v. State Bank, 1 Ind. 130; 48 Am. Dec. 355; Waltz v. Barroway, 25 Ind. 383. The fact that the record of a sci.fa. against infant heirs to revive a judgment against the ancestor does not show the appointment of a guardian ad litem will not invali- date the title of a purchaser under the judgment. Evans v. Ashby, 22 Ind. 15. But where it affirmatively appears from the record, as by the statement con- 104 MARKETAW.F. TITLK TO REAL ESTATE. when the record is very ancient. 1 Tlie second rule is that the recitals of fact in the record from which the jurisdiction of the court is seen, or a recital of jurisdictional facts contained in the judgment itself, cannot be contradicted or shown to be untrue in any collat- eral proceeding. The record imports absolute verity. 2 Thus, to illustrate the first rule, in a case in which the law provided that the lands of a decedent should not be sold for partition until the eldest child had arrived at majority, the court refused to permit one who tained in an agreed case, that the infants were not served with process, had no notice of the proceedings, and were not in court during their pendency, the judgment will be held void on collateral attack. Doe v. Anderson, 5 Ind. 33. In Ford v. Wnlswortli, 15 Wend. (N. Y.) 449. it was held that a title under a sale, in pursuance of a surrogate's order, might be collaterally attacked for \vaut of jurisdiction if H did not appear that an account of the personal estate and of the debts of the decedent was presented to the surrogate, showing a i!c<-ii v for the sale, even though the presentment of the account is recited in thr on: sale. Regarding a Surrogate's Court as a court of general and unlimited juris- diction in probate matters, it is not easy to reconcile this decision with the rule that, except where the record shows the contrary, it will be presumed thnt every thing necessary to give the court jurisdiction had transpired at the time thr order, judgment or decree was made. 1 Shackclford v. Miller, 9 Dana (Ky.), 273; Baker v. Coe. <> Tr\ 'Black on Judgments (2d ed.) ( 276; Grignon v. Astor, 2 How .1 s 319, 340, leading case. In Dorsey v. Kendall, 8 Bush (Ky.). xMM. x.'!^. it \\ us h. Id that a judgment, upon service by publication, could not be collaterally attarked upon the ground that the order of publication had been obtained upon a f:il-<- affidavit or a fatec return of the sheriff. A judgment subjecting the lands of a nor dent to the payment of delinquent taxes, which, following the form prescribed by statute, recites that " notice has been given as required by law," cannot be attacked in a collateral proceeding, though the statute expressly provides that the taxpayer shall be notified by publication in a newspaper in the county where the land lies. Driggs v. Cassaday. 71 Ala. 529. It is to be borne in mind thnt while recitaU in the record cannot be contradicted in a collateral proceed in-, tin v are net conclusive upon the parties if founded in fraud or mistake. Thus, if the officer return process as " executed on the defendant A .." and such return be fraudulent, in that service was never made, or erroneous, in that the officer n.i- took another person for A., the defendant A. cannot show these facts in a col- lateral proceeding, such as ejectment by or against a purchaser at a sale quent upon such return; but he can by some direct proceeding, either by motion. petition or other proceeding in the cause in which the sale was made, if still pend- ing, or. if not pending, then by an independent action or suit on his part against all person* fulerested. Tacate the judgment, orders and subsequent proceedings in tae cauac by which he is deprived of his rights. CAVEAT EMPTOE. 1Q5 was bonnd by a decree for sale in a snit for partition, to show that the eldest child had not reached full age when the decree was entered. 1 To illustrate the second rule, if the return indorsed by an officer on original process in a suit show service thereof on the defendant, evidence will not be received in a collateral proceeding to show that in fact the return is false and that process was never served on the defendant, nor that the process was not served at the time stated in the return, nor that the person making the return was not the proper person to serve the process. 2 It should be remarked here that the rule as to presumption of jurisdictional facts, where the records do not disclose them, applies only to the judgments of a court of original, general jurisdiction. E"o such presumption arises in favor of the judgment of a court of special or limited jurisdiction ; the proceedings of such a court must set forth the facts and evidence on which the judgment is rendered. 3 What is and what is not a court of general jurisdiction is a question which cannot be inquired into here. It must suffice to say that, as a general rule, the Superior Courts in each State, as distinguished from those courts in which the pleadings are oral, such as a Justice's Court, are courts of general or unlimited jurisdiction ; in other words, courts in which the great mass of civil rights are enforceable in the first instance. 4 1 Thompson v. Tolmie, 2 Pet. (U. S.) 157. 2 Burke v. Elliot, 4 Ired. L. (K C.) 355, 359; 43 Am. Dec. 142. 3 Grignon v. Astor, 2 How. Pr. (U. S.) 319, 341, a leading case. In Young v. Lorain, 11 111. 624, 636; 52 Am. Dec. 463, it was held that the Circuit Court in that State, while a court of general common-law and chancery jurisdiction, was a court of special or limited jurisdiction in respect to its statutory power to order the sale of infant's lands, and that a proceeding for such sale which did not show upon its face that all the personal estate of the infant had been exhausted, that being by statute a condition precedent to the power to order the sale, was abso- lutely void and afforded no protection to the purchaser. And in Strouse v. Dren- nan, 41 Mo. 289, it was held that the statutory jurisdiction of a County Court to order the sale of an infant's lands for his education and support was special and limited, and that, where the record in such a case failed to show that the sale was made upon due appraisement, and that other statutory requisites had been com- plied with, an order confirming the sale was absolutely Toid. 4 In this connection the following observation from Mr. Black's excellent work on Judgments will be found useful ( 283): "In all the States there are courts having original jurisdiction of every (or nearly every) species of action or pro- ceeding known to the common law, unlimited in respect to the amount or the 14 106 MARKETABLE TITLE TO REAL ESTATE. The question, '* \Vhen does the fact that the court had no juris- diction appear upon the face of the record?'' naturally arises here, and presents some difficulty when considered in connection with the rule that in a case in which jurisdictional facts do not appear from the record, it will be presumed that the court was satisfied of the existence of those facts before entering a judgment or decree. Suppose a plaintiff in partition sets out A., B. and himself as owners of the property to be divided, but fails to make B. a party defendant, and process issues only against A. It is plain that a decree in the cause directing a sale of the premises would be abso- lutely void as to B., and a purchaser would acquire no title to his interest. Suppose, however, that B. was made a party and that process issued against him, but the record failed to show whether or not the process was ever served. Will it be presumed upon collat- eral attack that B. was served with process, and that such fact was made to appear to the court before judgment was entered ? Does such a case stand upon the same footing as one in which the court having no jurisdiction over the subject-matter, except upon a certain contingency, such, for example, as the arrival of a party in interest at majority, a court in which the judgment is attacked will presume that such contingency had transpired and that the court of first instance was advised thereof before judgment was entered ? It is conceived that no such presumption would be made in favor of the judgment or decree, and that the rule that the existence of juris- dictional facts will l>e presumed does not apply in cases in which it is the practice of the courts to enter judgment only upon docu- mentary evidence, such as becomes a part of the record, that juris- diction had been acquired ;' nor in any case in which it is provided character of the controversy. And these are unquestionably 'superior' courts within the meaning of the rule. And the same is true of courts possessing gen- eral equity power*. In most of the States there are certain tribunals whose authority in wholly derived from statutes, who arc authorized to take cognizance only of a particular class of actions or proceedings, or to act only in certain speci- fied circumstances, whose course of procedure is precisely marked out, and whose minute* or memorials are not dignified with the character of a record. And these n- undoubtedly ' inferior' courts within the meaning of the rule." 1 8w Given v. McC'arrull. 1 Sm. & M. 3M Burke v. Klliott, 4 I red. L. (N. 0.) 855,858; 42 Am. Dec. 14'J. wlii-re it wan -. ,i.| that a judgment against one not a jwrty is void, and that CAVEAT EMPTOK. 107' by statute that the judgment roll shall show service on the defend- ant where judgment by default is rendered, 1 nor, generally, where, ever it is provided that the record shall show certain jurisdictional facts. 2 It follows from the foregoing principles that the only case, apart from fraud, mistake or surprise, in which a judgment or decree can be declared void in a collateral proceeding is one in which the fact that the court had no jurisdiction of the cause appears upon the face of the proceedings in which the judgment or decree was rendered. In other words, a judgment will be void on its face only where the record discloses the jurisdictional facts, and the facts so disclosed are plainly insufficient to have conferred jurisdiction. 8 If this rule be sound, it is plain that the cases in which objection to the title may be successfully made on the ground of defective judicial pro- ceedings through which the title is derived, will be reduced to a very narrow compass. This result is not to be regretted. The security of titles to real estate under judgments and decrees of court is a matter of the gravest importance to the public. Besides, the it can appear that he is a party only when the record states an appearance, or the official service of process on the person or his property. Citing Armstrong v. Harsham, 1 Dev. (N. C.) 187; Irbey v. Wilson, 1 Dev. & Bat. Eq. (N. C.) 568, and Skiuner v. Moore, 2 Dev. & Bat. (N. C.) 138. In Campbell v. McCahan, 41 111. 45, it was held that a deeree against a non-resident, founded upon an affidavit for an order of publication which failed to show upon its face that defendant was a non-resident, was absolutely void and open to collateral attack. Where it was provided by statute that an order for the sale of an infant's lands should not be void for irregularity in the proceedings provided certain sub- stantial facts appeared, it was held that these facts must, on collateral attack, appear from the record or be shown by extraneous proof to exist, and that the court could not presume that they had been made to appear to the court granting the order. Cooper v. Sunderland, 3 Iowa, 114; 66 Am. Dec. 52. In Bannister v. Higginson. 15 Me. 73, it was held that if an officer's return of a levy of an attach- ment on land do not show by whom the appraisers of the laud were chosen, the proceedings would be insufficient to pass the title. In Tederall v. Bouknight, 25 So. Car. 275, it was intimated that that if the record showed that a " summons" had been issued against an infant defendant the court, on collateral attack, might presume that it had been served, though actual service did not appear from the record. 1 Hyde v. Redding, 74 Cal. 493, 501; 16 Pac. Rep. 380. s Thornton v. Mulquinne, 12 lo. 549; Babbitt v. Doe, 4 Ind. 355, semble. 3 Black on Judgments, 278. 108 MARKETABLE TITLE TO ITEAI. ESTATE. rule destroys a great source of frivolous objections to title, and materially lessens the lalx>rs of those whose duty it is to examine and pass upon the validity of titles. The foregoing rules may be regarded as established by the preponderance of judicial decision in America. Rut they have not jvissed without dissent, and decisions in conflict with the principles upon which the}' have been rested may lx found in several of the States. An exhaustive considera- tion of this subject is beyond the scope of this work. The student will find the numerous csises in point collected in a recent work upon judgments, in which the whole subject of collateral attack is philosophically and perspicuously treated. 1 The irri|Krtance of these rules cannot be overestimated. If a title derived through a judicial sale may be overturned by matters in jtais affecting the jurisdiction of the court, concerning which the most cautions purchaser cannot inform himself, there would be no safety in purchasing tinder a judgment or decree, and such titles would l>c held in as slight estimation as those dependent upon tax sales. If the record shows affirmatively want of jurisdiction in the court to render the judgment or decree, the purchaser can, by examination of the record, advise himself of that fact. But if it should !>e required of the purchaser to pursue his inquiries outside of the record, and satisfy himself as to the truth and adequacy thereof by the statements of witnesses, it is plain that the examina- tion of a title under a judicial sale would involve a great ontlay of time and money, with little assurance of safety in the result, and would probably prevent the acceptance of such titles, unless the consideration should be substantially reduced. 51. Title as affected by matters and things occurring after jurisdiction has attached. It is obvious that a title under a judicial sale may l>e declared insufficient upon grounds other than want of jurisdiction to render the judgment or decree under which the sale WHS made. There may be proceedings in a cause which are no part of the original rar judicata, and which are never paused upon until drawn in question in some subsequent proceeding involv- ing the title of the purchaser.' Such, it is conceived, would be a conveyance to the purchaser, the sale not having, as yet, been con- 1 1 Black Judgment*, rh. 12, p. 297. Upnon v. Howe, 3 Strohh. (8. ('.) 108; 49 Am. Dec. 688. CAVEAT EMPTOE. 109 firmed. 1 The judgment too may be voidable because the result of fraud or mistake. And the sale itself and a conveyance in pursu- ance thereof may confer no rights upon the purchaser because effected by fraudulent collusion with the officer of the court or in other ways tainted with fraud. 2 With respect to sales that are void for want of confirmation, it is to be observed that it is not neces- sary, according to the weight of authority, that the record shall show a confirmation of the sale in express terms in order to validate the title of the purchaser. 3 A decree directing the distribution of the purchase money arising from the salo or directing that a deed be made to the purchaser is in effect a confirmation of the sale. 4 Nor is a report of sale by the officer of the court indispensable to the validity of the title if it otherwise appears from the record that a sale was made and that it was confirmed by the court. 5 52. l*raud as ground for collateral attack. The rights of the purchaser at a judicial sale, where fraudulent misrepresentations respecting the title were made, have been already considered in this work. 6 Fraud which exposes the title of the purchaser to collateral attack is either fraud in the procuration or rendition of the judg- ment or decree under which the sale is made, or fraud in. the sale itself. Fraud in the procuration of a judgment always opens the judgment to collateral attack by a party to the suit. The rule that fraud vitiates everything applies to judicial records as well as to private contracts. 7 An illustration of this principle is afforded by the case of Mitchell v. Kintzer. 8 This was an action of ejectment against a married woman by one who purchased the premises in dis- 1 See Freeman Void Jud. Sales, 43. 5 In Singletary v. Carter, 1 Bailey L. (S. C.) 467; 21 Am. Dec. 480, a levy made by a deputy sheriff under an execution, in which he himself was plaintiff, was held void, and a sale and deed in pursuance thereof inoperative to vest title in the purchaser. 3 Freeman Void Jud. Sales, 44; Rorer Jud. Sales, 3, 16, 107, 129. 4 Agan v. Shannon, (Mo.) 15 S. W. Rep. 757. 5 Harrison v. Harrison, 1 Md. Ch. 331. /Ante, 48. 7 Fermor's Case, Co. Rep. pt. 3. p. 77; Vandever v. Baker, 13 Pa. St. 121, obiter ; Wilson v. Smith, 22 Grat. (Va.) 493; Lancaster v. Wilson, 27 Grat. (Va.) 624. 8 5 Pa. St. 216; 47 Am. Dec. 408. See, also, Rhoads v. Selin, 4 Wash. C. C. (U. S.) 715. MARKETABLE TITLE TO REAL ESTATE. ptite at an execution sale against the husband. The premises cor. sisted of the share of the wife in her deceased father's estate, which the administrator of that estate, fraudulently colluding with the husband, returned as having been sold to the husband, there having been in fact no sale, and no purchase money paid by the husband. There was nothing on the face of the records of the Orphans' Court, ordering and confirming the sale, to impeach the validity thereof; but, upon the principle that fraud vitiates all acts, judicial as well as others, judgment was rendered for the wife, the defend- ant. Generally, it may be said that if a purchaser at a judicial sale buy with knowledge of fraud in the proceedings anterior to the sale, he cannot hold the property as against the claims of a party to the suit who was injured by the fraud. 1 But, of course, a purchaser, without notice from a purchaser with notice of the fraud, would be protected. Fraud in making a judicial sale, other than fraudulent representa- tions as to the title, exposes it to collateral attack at the suit of the party injured. 2 It sometimes happens that the officer making the sale either directly purchases the property himself, or indirectly through some one whom he has procured to bid. Such a sale is prlnia facie fraudulent and conveys no title as against those in whose behalf the sale was made. So, also, where the officer fraudu- lently colludes with the purchaser in conducting the sale in such a manner that the property is sold for less than its value, or the pur- lies in interest otherwise deprived of their rights. 8 It is a fraud 1 Morris v. Gentry, 80 N. Car. 248. 252, where the point was Mt,-r : citing, however. University v. Lassiler. 83 N. Car. 88: Ivey v MrKinnon, M N < ,i 661; Sulton v. Schonnald, 86 N. Car. 198; 41 Am. Hep. 455; Gilbert v .James, 86 N. Car. 244. Freeman Void Jud. Sales, 8 40. In Sumner v. Sessions, 94 N. Car. 871, a distinction wns drawn between cases in which the officer selling purchased directly at his own sale, and those in which he purchased from a purchii hi* own sale, holding that in the former case the sale is a nullity nn vnr :t ied \>\ some direct proceeding instituted for that purpose. See, also. Rutherford v. BUunper. 60 Tex. 447; Dodcl v. Templeman. 76 Tex. \V. Hep. 187; Flaber v. Wood, 65 Tex. 200. McLaurin v. McLaurin, 106 N. C. 331; H> Rep. 1066. Freeman Void Jud. Sales, 40. Patton v. Thorn). - ), 288; 67 Am. Dec. 228. Eren though the purchaser gives a ' el specific performance of the contract unless he " Principk* of justice demand this, and courts of equity have rawed up this principle. a being of their creation called ' substitution,' unknown to the common- law forums, to accomplish the ends of justice, and I know of no more signal instance to exemplify thu di|x>Mtion as well as the power of equity to ndopl HMDit to accomplish right than this of substitution aocordcd purchasers under void proceeding whose money ha* pone to satisfy liens jjood against the debtor." 1 Worrwr I*w of AuminiMration. f 404: Freeman Void Jud. Sales, | 9. * Win-rwr I.4IW of Administration ft 4H4. J 2 Hrk. (C. C.) 213. Alt*Ht v. Mernitz (Tex. Civ. App.i, 83 S. W. 801. In re Mulholland'M Katate, 221 IV. 73 All. 1)32, 132 Am. St. Hep. 791. CAVEAT EMl'TOR. 113' was able to convey a clear title. The opinion was by Chief Justice MARSHALL, and there was no ad version to the maxim caveat emptor. A sale by an administrator or executor, directly or indirectly to himself, acting under a power in the will, is void. 1 But, of course, the sale must be vacated by some appropriate proceeding for that purpose. It has been seen that such a sale under judicial license is in some of the States a nullity, absolutely void, and open to col- lateral attack, while in others a sale by the officer indirectly to him- self, though fraudulent, must be vacated in some direct proceeding and cannot be shown in a possessory action by or against the purchaser. 2 The distinction, for the purposes of this work, is com- paratively unimportant, for we are here considering defects for which a purchaser may reject a 'title ; and, to a purchaser from an administrator who has made a fraudulent sale to himself, it is imma- terial whether the title is liable to be attacked in a collateral pro- ceeding or in a direct proceeding, -since in either case, if charged with notice of the fraud, he would lose the estate. 54. Sales in pursuance of judicial .license. The maxim caveat- emptor has been rigorously applied in most of the .American States 'to sales by -executors and administrators under judicial authority, whether in respect to inherent defects in the title or to those which result from errors and irregularities in the proceedings whence the authority to sell is derived. The sale, like a tax sale, is of the title such as it is, good or bad, and the purchaser is conclu- sively presumed to have purchased with that understanding. 8 This VDavies v. Hughes, (Va.) 11 S. E. Rep. 488. Prentice v. Townsend, 127 N. Y. Supp. 1066; 143 App. Div. 151. 2 Ante, 52. 3 Woerner Law of Adm. 484; Rorer ou Jud. Sales (2d ed.), 476; Freeman Void Jud. Sales, 48; Schouler on Exrs. (2d ed.) 515. AVorthington v. McRoberts, 9 .Ala. 297; Corbett v. Dawkins, 54 Ala. 282; Burns v. Hamilton, 33 Ala. 210; 70 Am. Dec. 570; Boiling v. Jones, 67 Ala. 508. Protmte sales, however, are subject to confirmation by the court in this State. See above cases. Colbert v. Moore, 64 Ga. 502; Jones v. Warnock, 67 Ga. 484. Bingham v. Maxey, 15 111. 295; Moore v. Neil, 39 111. 256; 89 Am. Dec. 303; McConnell v. Smith, 39 111. 279; Wing v. Dodge, 80 111. 564; Tilley v. Bridges, 105 111. 336. Ripley v. Kepler, 94 Ind. 308. Hale v. Marquette, 69 Iowa, 376. Short v. Porter 44 Miss. 533; Hutchins v. Brooks, 31 Miss. 430. Bashore v. Whisler, 3 Watts (Pa.), 490; Fox v. Mensch, 3 W. & S. (Pa.) 444; King v. Gunnison, 4 Pa. fit. 172; Sackett v. Twining, 18 Pa. St. 199; 57 Am. Dec. 599. Lynch v. Baxter, 4 Tex. 431; 51 Am. Dec. 735; Williams v. McDonald', 13 Tex. 322; Rice v. Burnett, 15 114 MARKETABLE TITLE TO KEAL ESTATE. rule has been carried so- far that it lias even been held that the administrator is under no obligation to disclose incumbrances on the estate or defects in the title that are known to him, 1 unless it be a want of title resulting from his own act or that of the intestate. 3 In most of the States it seems that probate sales are not reported to the court for confirmation, and, therefore, cannot be regarded as judicial sales. The authority to sell is granted by the court, but thereafter the court, with respect to the sale, i&functus ojficii* But in other States it seems that such sales are reported to court for confirmation. 4 Where that is the case, no reason is perceived why the purchaser should not be permitted to resist continuation on the ground' that the title is defective, as he may do in the case of an ordinary judicial sale. A proceeding on behalf of an administrator to sell the 'ands of his intestate for distribution on the ground that it cannot be equitably divided among the heirs, is a proceeding in, rem, and r, bale made under a decree in such a case is a judicial sale to which the doctrine caveat emptor applies. The purchaser buys at his peril, and if there be no fraud or mistake or ignorance of any materiaJ fact he must pay the purchase money after confirmation of the sale, even though he gets no title. 5 If the purchaser from an 89 Tex. 177. A harsh application of the rule stated in the text will be found in the cose of Dolling v. Jones, 67 Ala. 508, where a widow, who purchased the lands of her deceased husband at a sale l>y his administrator, was compelled to pay for a part to which she was entitled as a homestead. STONE, J., dissen ling. The rule applies whether the sale by the administrator be public or private. Kirk- land v. Wade, 01 Oa. 478 Thompson v. Hunger. 15 Tex. 523; 65 Am. Dec. 176; Hawpe v. Smith, 25 Tex. Supp. 44#. Sec, also, Ixmdon v. Kolnirtson, 5 Bl. (Ind.) 276. In Walton v. Keagcr, 20 Tex. 103, 110. it was said that if the administrator should sell the land a second time without disclosing the prior sale it would be a fmud upon the purchaser and would vitiate the second sale. The court added that it would be equally a fraud upon a purchaser from the administrator if there uad been a prior salt by the intestate, whether the same was known or unknown lO tbe administrator, if the purchaser had no knowledge of it. thus withholding application of the maxim rarvat emptor from these cases in which the want of title springs from the fault or wrongful act of the administrator, and distinguish- ing between such case* and those in which the title was originally defective. But *ec Ward v. Williams, 45 Tex. 617, where this dictum is overruled. Smith v. Arnold, 5 Mason (U. S.), 414, 420. 4 Sec Rorcr on Jud. Sale*, g 302; 2 Woerner Am. Law of Admn. g 1059. Garret t v. Lynch. 45 Ala. 2O4: Hums v. Hamilton. 83 Ala. 210; 70 Am. Dec. 570. CAVEAT EMPTOtt. H5 administrator or executor lias received a conveyance it is immaterial,, with respect to liis asserted right to detain the purchase money on failure of the title, whether the conveyance was with or without covenants for title. If the conveyance was with covenants they do not bind the estate, and consequently the breach of them affords no counterclaim to an action for the purchase money. 1 And if the conveyance was without covenants for title the purchaser would, on general principles, be without relief. 55. Fraud on the part of the representative. Fraud in a sale by a fiduciary or ministerial officer in representing that the title is good, or that there are no incumbrances on the property, when he knows the contrary, has been distinguished from fraudulent collu- sion by which the sale is effected, or any other fraud, not in respect to the title, which avoids the sale. Fraudulent misrepresentations as to the title or as to incumbrances cannot, it has been held in some cases, entitle the purchaser to detain or recover back the purchase money from the estate ; they merely give the purchaser a right of action against the fraudulent vendor in his individual capacity. 2 Other cases hold that the administrator's representations as to the title are immaterial and irrelevant, and that if the purchaser chooses to allow himself to be influenced by them, he has no remedy against the estate, either by way of recovery back or detention of the pur- chase money. 3 A fortiori, the purchaser cannot be relieved if the representation was made in good faith. 4 Nor is the administrator in any case, it seems, bound to disclose imperfections in the title and incumbrances upon the estate. Mere silence on the part of the administrator in these respects will not be construed to be a fraud on the purchaser. 5 An administrator has no right to agre^ that the 1 Hale v. Marquette, 69 Iowa, 376; Mitchell v. McMullen, 59 Mo. 252. 2 Colbert v. Moore, 64 Ga. 502; Ga. Code, 2622. Riley v. Kepler, 94 Ind. 308. Hutchins v. Roberts, 31 Miss. 430. But see Hawpe v. Smith, 25 Tex. Supp. 448, and Walton v. Reager, 20 Tex. 103. 3 Fox v. Mensch, 3 W. & S. (Pa.) 444. Even though the representation by the administrator was fraudulently made. Ripley v. Kepler, 94 Ind. 308. 4 Coombs v. Lane, 17 Tex. 280. 5 Woerner Am. Law of Admn. 484; Wilson v. White, 2 Dev. Eq. (N. Car.) 29. It seems, however, that the purchaser in this case knew of the objection to the title, which was an outstanding right of dower. Thompson v. Munger, 15 Tex. 523; 65 Am. Dec. 176; Hawpe v. Smith, 25 Tex. Supp. 448. 116 MARKETAKI.K TITI.F. TO KEAL ESTATE. sale shall he free from incuinbrances, 1 and if an iucumbrance exist, the purchaser mu>t take subject thereto. Nor can he refuse to pay the purchase money on the ground that the title was advertised to be good. 5 Nor has the administrator a right to represent that the title is good. lie should offer for sale merely such right, title or interest in the estate us his testator or intestate may have had. 8 If there is a cloud upon the title he cannot even apply to a court of equity to remove it. 4 Hut the better opinion seems to be that if the administrator fraudulently represent that the title is good for the purpose of effecting a sale, when he knows that there is no title, the contract will be rescinded and the parties placed in stain quo? ! Htckley v. Biddle. 83 Pu. St. 276. But see Reiner's Appeal, (Pa. St.) 12 All. Rep. h50, where it was held that un executor has a right, when making a sale, to declare that the purchaser shall take free of au incumbrance on the premises, and that the estate must reimburse the purchaser if he be compelled to discharge the lien. * li&Hcck v. Gay. 9 Cal. 181; 70 Am. Dec. 648. A number of authorities will b : found collected in the briefs of counsel and in the opinion of the court in this . :.- * Schouler on Executors (2d ed.), 212. 4 Le Moyne v. Quimby, 70 HI. 399. * Hickfton v. IJnggold, 4? Ala. 449 ; Fore v. McKenzie, 58 Ala. 115, provided the purchaser does not. with knowledge of the fraud, permit the sale to be confirmed. Clayton v. hunger, 9 Tex. 2*5; Able v. Chandler, 12 Tex. 88; 62 Am. Dec. 518, where the Bale was of personal property; Roehl v. Pleasants. 31 Tex. 45; 98 Am. Dec. 514; Walton v. Reager, 20 Tex. 103. Bond v. Ramsey, 89 111. 29. Ivea v. Ffcnon, 1 Freem. Ch. (Mis**.) 280. As to whether a prior conveyance by the admiuixlratnr or tlie intestate entitles the purchaser to relief, see Ward v. Wil- HMDB, Tex. 617, criticiging Walton v. Reager, 20 Tex. 103. Banks v. Ammon, 27 !. St. 172. Love v. Berry, 22 Tex. 371. " If the administrator makes repre- sentations which he knows to be untrue for the purpose of deceiving the par- clmstT. who is thereby deceived, without that degree of negligence on his jwrt which will throw the responsibility of the description upon himself, we hold that he may show that fraud in defense to the note. (Mason v. Wait, 4 Scam. [111.] 135; England v. Clark. 4 Scam. [111.] 489; Welch v. Hoyt. 24 111. 118; Union v. Porter, 31 111. 120.) This does not dispense with the applica- tion of the rule ratxat emjttor to such sales. I know of no case where that rule has ever l>oen so applied as to excuse a fraud. The utmost vigilance may often be unable to guard against the practices of the fraudulent. As has been repeat- edly deddcd by this court, in the absence of fraud the purchaser at such Rale must not only look out for the title, but for the quality of the article whirl) he purchase*. Nor cnn the administrator bind the estate by a warranty of either. If he assumes to do so he would he personally responsible upon such warranty. CAVEAT EMPTOK. 117 The rule that the maxim caveat emptor applies in its strictest sense to sales by executors and administrators under judicial license is established, as we have seen, in most of the American States. But in some of the States it does not prevail in its fullest extent. Thus, in Mississippi it has been held that a purchaser from an administrator under a probate license may refuse to pay his bond for the purchase money, if the proceedings in which license culmi- nated fail to show notice to the heirs, as required by law. 1 And in Texas, where an administrator sold land to which there was no other title than a location under a rejected and fraudulent certifi- cate, it was held that the rule caveat emptor did not apply, the court saying that it wac simply a question of justice, whether the estate having parted with nothing, and the purchaser having gotten noth- ing, he should be compelled to pay. 2 So, also, it has been held that a purchaser from an administrator whose powers have been revoked will be relieved in equity. 3 And generally it has been held that if a probate sale be void, either for want of jurisdiction in the court to order the sale, or for want of authority in the administrator to sell, the purchaser cannot be compelled to pay the purchase money. 4 This is without doubt a great relaxation of the rule caveat emptor, if not entirely inconsistent therewith, inasmuch as the defect would This is carrying the doctrine of risk to the purchaser and immunity to the estate far enough.. To go further and sanction the practice of a fraud would tend to drive all men from such sales, which would prove a serious detriment to estates." CATON, J., in Ray v. Virgin, 12 111. 216. 1 Gwin v. McCarroll, 1 Sm. & M. (Miss.) 351; Laughman v. Thompson, 6 8m. & M. (Miss.) 259; Worten v. Howard, 2 Sm. & M. (Miss.) 530; 41 Am. Dec. 607. Compare Mellen v. Boarman, 13 8m. & M. 100. Contra, Bishop v. O'Connor, 69 HI. 431. 2 Roehl v. Pleasants, 31 Tex. 45; 98 Am. Dec. 514. The same observation would apply with equal force in a case in which the purchaser is put in posses- sion and afterwards evicted by one claiming under a paramount title; yet, as we have seen, the purchaser is denied relief in such a case. It is not easy to recon- cile this decision with the declaration in Rice v. Burnett, 39 Tex. 177, that a pur- chaser at an administrator's sale is to be regarded as a mere speculator; to win if he gets a good title, and to lose if the title be worthless. 3 Levy v. Riley, 4 Oreg. 392. 4 Woerner Am. Law of Admn. 485; Freeman Void Jud. Sales, 48. Wyatt v. Rambo, 29 Ala. 517; 68 Am. Dec. 89; Ikelheimer v. Chapman, 32 Ala. 676; Riddle v. Hill, 51 Ala. 224. Campbell v. Brown, 6 How. (Miss.) 230. Bartee v. Tompkins, 4 Sneed (Tenn.), 623. 118 MARKETATU.K TITI.K TO BEAL ESTATE. be, in moat instances, palpable upon the face of the proceedings, and one to which the attention of the purchaser would naturally be directed in the first instance. 1 The right of a purchaser at a void probate sale to be subrogated to the rights of the creditor whose debt was paid out of the proceeds of the sale, will be considered hereafter. 3 It seems that a purchaser at a void probate sale cannot, where time is not material, rescind the contract if the heirs are will- ing to join in a conveyance of the land to him. 8 In the State of New York a purchaser at a probate sale may refuse to complete his purchase if the title be bad. He cannot be compelled to accept an unmarketable title. 4 Such a rule, it is believed, conduces to the interests and advantage of all parties, by increasing the confidence of bidders at probate sales, by protecting purchasers against latent defects in the title, and by preventing sacrifice and loss to the estate of the decedent. In suits against purchasers at probate sales the courts will IKJ slow to entertain objections to title founded upon errors, defects and irregularities in the proceedings under which the administrator derived his authority to sell. Mere omissions by the administrator, or by the court, to do certain things not essential to the jurisdiction of the court cannot defeat the title of a lona fide purchaser from the administrator. The repose and security of such purchaser in their titles isof the greatest interest to the public, for if they could be evicted or disturbed in their iin l>ee;uise of such errors and omissions, probate sales would IK- dampened, and the estates of decedents would be sacrificed. 5 Therefore, it has been said by the most eminent judicial authority that " there are no judicial sales around which greater sanctity ought t.. he j. laced than those of the estates of decedents, made by order of those courts to which the laws of the States con tide full jurisdiction over the subject.' 56. Want of jurisdiction, errors and irregularities in pro- bate proceedings. What has been already said in respect to want 1 Ante, I 46. Post, this cba])t. T Umkiuv. Reese, 7 Ala. 170. See. also, Uinptou v. Usher, 1 H. M.m. ie sold for the payment of his debts unless the personal estate is insufficient for that purpose, the court will not have jurisdiction to direct a sale of the lands unle.-s the petition or complaint avers the insufficiency of the personalty t-o pay the debts. 8 If notice of application by the administrator for license to sell be not given the heire and other per>ms interested, in pursuance of the statute, the sale will be void, and open to collateral attack. 4 But want of service of a summons on th" guardian ad I item of infant heirs makes the subsequent proceeding reversible for error and not absolutely void, and, therefore, does not all'ect the title of the pur- chaser. 5 Where the courts of law or equity, and not the probate court, have power to order a sale of devised lands as assets for the payment of the testator's debts, an order of the probate court direct- ing such a sale is without jurisdiction and absolutely void. 6 On the other hand, it has been held that the validity o I" an adminis- trator's sale will not be affected by the fact that he gave no bond to conduct the sale properly, 7 nor that the record failed to show a 'Greenough v. Small, 137 IV St. 138j 20 Atl. Rep. 553) Morgan's Appi, 110 I' 9fc -'Tl: 4 Atl. Rep. 506; Armstrong's App. , 68 Pa. St. 409; Demmy's App., 43 Pa. St. 169. 'Gregson v. Tuson. (Mass.) 26 N. E. Rep. 874. Contra, Comstock v. Crawford, 3 Wall. (U. S.) 896; Hodges v. Fabian, (So. Car.) 9 S. E. Rep. 820. 'Ncedhamv. Salt Lake City, (Utah) 26 Pac. Rep. 920; citing Comstock v. Crawford, 8 Wall. (U. S.) 396, n it . Mickel v. Hicks, 19Kana.578; 27 Am. Rep. 161; Chicago, Kan. &Neb. R v Cook. 4 Kans. 83; 22 Pac. Rep. 988; Harrison v. Harrison, 106 N. Car. 282; 11 S. K l:< p :'.." '. This however, was not a case of collateral attack. 'Flic rule :-;h Carolina was otherwise s to infants until by statute service of summons was require.! to be made on the infant, llarr v. Hollnmon, 94 N. Car. 14. 'in v. C<>ok, HW X. C. 3715; 11 S. E. Hep. 871. At wood v. Frost, :>\ Mich 3t>o ; 73 Mich. 07. Other instances in which judg- or orders of probate courts have been held void for want of jurisdiction nn88. it was held that a purchaser at a probate sale was cluiriroiblc only with notice of the application for t lie sale, the order <>f sal.- and the sale itself, with n< onipanying exhibit*, if any. and that beyond these he was not bound to look. 1 Wyraan v. Campbell. 6 Port. (Ala.) 219; 31 Am. Dec. 677. CAVEAT EMI'TOR. 121 necessity for the sale, 1 nor that an inadequate price was realized for the property sold, 2 nor that the administrator died pending the pro- ceeding to sell. 3 Irregularities in the publication of notice to non- resident defendants in a proceeding to sell land for the payment of a decedent's debts, will not avoid the title of the purchaser. 4 A recital in the record of probate proceedings for the sale of land that notice of the sale had been posted as required by law cannot be contradicted in a collateral proceeding. 5 If the record is silent as to the existence of certain jurisdictional facts, and those facts are of a kind that are not required to appear affirmatively from the record, it will be presumed that the court was satisfied of their existence at the time of pronouncing judgment. 6 The regularity and validity of the appointment and qualification of an administrator who has been recognized by the probate court and authorized to sell, cannot be inquired into collaterally. 7 Fraudulent collusion between the administrator and the purchaser, by which the land is sacrificed, furnishes a ground upon which the heirs may avoid the sale. 8 And it may be stated as a general rule that in a case of fraud, whether in the procurement or rendition of the order under which the sale is made, or in the proceedings anterior to or at the time of the sale, whereby the heirs are deprived of their rights in the premises, makes the title liable to attack in the hands of a purchaser with notice of the fraud. 9 But the liability of the title to attack on this 1 Lynch v. Baxter, 4 Tex. 431; 51 Am. Dec. 535; Poor v. Boyce, 12 Tex. 449. s Williams v. Johnson, (K Car.) 17 S. E. Rep. 496. "Palmerton v. Hoop", (Ind. Sup.) 30 N. E. Rep. 874; Gross Lumber Co. v. Leit- ner, 91 Ga. 810; 18 S. E. Rep. 62; Succession of Massey, 46 La. Ann. 126; 15 So. Rep. 6. 4 Berrian v. Rogers, 43 Fed. 467; Mohr v. Maniere, 101 U. S. 417. Contra, Mohr v. Tulip, 40 Wis. 66. 6 Richardson v. Butler, 82 Cal. 174; 23'Pac. Rep. 9. 6 Ante, 50. McMillan v. Reeves, 102 N. Car. 550; 9 S. E. Rep. 449, where the authority of counsel to act for those not served with process was presumed to exist, the same not having been disputed in the proceedings complained of. Mills v. Herndon, 77 Tex. 89; 13 S. W. Rep. 854; Price v. Springfield Real Estate Assn., (Mo.) 10 S. W. Rep. 57. 1 Poor v. Boyce, 12 Tex. 440. 8 Freeman Void Jud. Sales, 40. 9 In Lynch v. Baxter, 4 Tex. 431; 51 Am. Dec. 735, it was intimated that if a sale by an administrator for the payment of debts, when there was no necessity 16 MARKETABLE TITLE TO REAL ESTATE. ground will not relieve the purchaser from the contract, if the fraud apj)eared upon the face of the proceedings, and might have been discovered by the exercise of due diligence. 1 57. SHERIFF'S SALES. Want of title in execution defendant. (rr/ieralrule*. The title which a purchaser a r an execution sale will acquire may l>e worth less for three realms; (1) Because- of a complete want of title on the part of the execution defendant ; the purchaser may be evicted by some one having a title paramount to that which the officer undertakes to sell. (2) Because the judg- ment or order under which the officer professes t<> act is void for want of jurisdiction in the court, or for some other reason, is open to collateral attack, and insufficient to bar a recovery of the estate from the purchaser by the judgment debtor or those claiming under him. (3) Because of some matter transpiring subsequent to the judgment or order under which the sale is made, avoiding the sale, for example, a lew and sale after the return day of the pr> under which the officer acts. The maxim or rule caveat emptor applies with peculiar force to - in which then- i- a complete want of title in the execution :idant. s In most of the States there is no r.-port or continua- tion >f the silt- ; no time is given for examination of the title: the tin -refor, was fraudulently procured liy the purchaser in collusion with the administrator, the title thereunder would he open to attack. 1 Hiee v. Hurnelt, 3U Tex. 177. 1 Freeman on Executions, ; 33o; Hernwn on Executions, p. li'.i.j; Freeman Void Ju.l s.ilrv r : is; RorerouJud. Sales, p. 603, Title "SlmitTs. Am A- Kng. Encyc. of L. The Monte Allegro. 9 Wh. (I". S.) filfi. Here the sale was of per-onal pii.|Nrty, l)i:t the ease lias heeii constantly cited in applying the snm principle t<- sales of realty under execution. Ijin.ir \. Waring. ,'." Ala. C,-j:, : r,n Am !)(<. 'loodlmr v Daniel, ss Ala. :>*:<; 7 So. Kcp. 'J54: Thomas v. <;ia/.-n.-r. 90 Ala. .V;T; MS,,. Hrp. i:,:: D.mly v. Hectnr. ]0.\rk. -JH; 1 Am. Dee -Jl'J .l..|nis * 1' ''I'-' -Methvin v. Bexley, IS (la 551. F.ngland v. Clark, 4 SCMB. 'III.- l-<;. \Vall.rid-e v. Day. : KW \ Mathi,,t. '.IS, r- A: U , I'n , :!:'.>, Friedly v Sehe.-t/. A U. 'I Am !' -iiiith v. Painter. :, Serj;. & H (I'a.) 228; 9 Am. CAVEAT EMPTOR. 123 purchaser pays the cash, the officer executes a deed, and the transac- tion is ended, so that there is no room for the application of any asserted equitable right to detain the purchase money where the titte fails, as in the ordinary case of vendor and vendee. Such sales stand much upon the same footing as tax sales. The purchaser regulates his bid by his knowledge that he will get merely such title as the execution defendant has, though it be utterly worthless ; con- sequently the property is usually knocked down to him at a nominal figure. Again, the sheriff stands in the place of the execution debtor, and sells merely such title or interest as the debtor may have in the property. The sale by the sheriff can amount to no more than a sale by the debtor himself of merely such estate or title as he might have, expressly without warranty, and, as the pur- chaser could in such case neither detain nor recover back the pur- chase money from the debtor on failure of the title, neither can he in such case detain or recover it back from the sheriff or the execu- tion creditor. 1 Therefore, stringent applications of the rule caveat Dec. 344; Coyne v. Souther, 61 Pa. St. 456; Wills v. Van Dyke, 106 Pa. St. 111. Upham v. Hamill, 11 R. I. 565; 23 Am. Rep. 525. Thayer v. Sheriff, 2 Bay (S. Car.), 171; Harth v. Gibbs, 3 Rich. L. (S. Car.) 316; Wingo v. Brown, 14 Rich. (S. Car.) 103. Oberthier v.' Stroud, 33 Tex. 525. Henderson v. Overton, 2 Yerg. (Tenn.) 393; 24 Am. Dec. 492, unless the sale was made under a void judgment; Bostick v. Winton, 1 Sneed (Tenn.), 541. Saunders v. Pate, 4 Rand. (Va.) 8, where, however, the sale was of personal property. In Methvin v. Bexley, 18 Ga. 551, a purchaser at a sheriff's sale, who had been evicted from the premises, filed a bill to recover from the sheriff a surplus remaining in the sheriff's hands after satisfying the execution, which surplus the sheriff claimed by virtue of other fi. fas. against the same defendant. It was held that the rule caveat emptor applied, and that the bill could not be maintained. The rule caveat emptor, as it applies to sheriffs' sales, is thus defended by the court in Thayer v. Sheriff, 2 Bay (S. C.), 169: "These sales are made by operation of law, in which the will and consent of the defendants are never consulted. They are forced upon them, whether they assent or dissent to or from them, and it is their right, whatever that may be, more or less, that is sold by the sheriff, who is a public officer of justice. There is no warranty in law, either express or implied, raised on any of the parties concerned in such a sale; neither on the part of the former owner, t he- defendant, nor the sheriff, who is the mere organ of the law for transferring the right of the defendant. Caveat emptor, under these circumstances, is the best possible rule that can be laid down or adopted. Every man who goes to a sheriff's sale ought to take care and examine into the title of the defendant care- fully before he attempts to bid; and that is one reason, among many, why prop- erty is in general sold so much under its real value at these sales." 1 Methvin v. Bexley. t* Gh. 551. 124 M \RKF.T.\nT.K TTTT.K TO HEAT. I'.ST.YTE. empioi' will be found in cases of sales by sheriffs or other minis- terial officers under executions, attachments, or other legal process. 1 The rule />// applies with additional force if the pur- chaser at a sal'' under execution was warned that the title was in di>pute. 2 The purchaser at a sale under execution not only takes merely such title a.- the execution debtor may have, but he takes subject to all eqiii;5e> which may exist against the latter," whether he has n >ricr ot' them or not. 4 A purchaser at an execution sale is not enti privileges of a purchaser without notice. Thus, it has l>een held that he takes subject to the right of a third person to require a conveyance of the bare legal title from the execution debtor where Mich person had purchased from the debtor and paid the purchase money without taking a conveyance before the execution sale. 9 The same rule was applied in a case in which the title to the property was being litigated between the execution defendant and a stranger, the purchaser objecting that a Us p<~ //ubsequent to a junior mortgage. 7 But inasmuch a- a purchaser at a sale under execution succeeds to all the rinliN <>f tin- execution plaintiff, the rule that he takes sub- ject to all equities against the execution defendant must obviously betaken with the qualification, namely, that if, under the llegi.-iry Ad-, the judgment under which the sale is made is a lien on the premises in the hands of a purchaser from the judgment debtor, the 'A sale by a sheriff, fort-closing a mortgage, is a "sheriff's sale," within the meaning of the rule caveat emptor. Walbridire v. Day 31 111. 379; 88 Am. Dec. m 1 0berthier v. Strond. :*:: T> \ BBS] B>r<> v. Harris, i:t I,ea riYnn.), 86. Oatenmnv. Ifeildwin. G Wall. (U. S.) 116; 1M1 v. Flahen 694. See cases Hied Vol. 6, U. 8. Dig. (1st series) Ml, 'J202. If tin- execution ilHVn.lam hnvi-Miily ;in i-(|itit:il>lc i-t;iti-. nnd li:i> n<'t ]>:iiil tlu- mtirv pur;'h:iM- money, a piin-linw-r undi-r the execution ac(|uin'.s only his int.-iv-i. ami can iret a title only I >y doiim those things UJMUI pcrformunce of which the debtor himself would have lii-i-ii . -in!.!. .1 to demand a conveyance of the title. Walke v. Moody, 65 N. Car. 099; Morgan v. Ilou-e. :,:t M,,. -Jin. i: > v Martin, 6 I: > Car.) 169; 51 Am. Dec. 418. * Georgetown v. Smith. \ Crunch C. C. (U. 8.) 91. Rollins v. Henry, 78 N. Car ' Fn*t v Vonkere Sov. Hank. 70 N. Y. 558; 26 Am. Rep. 627. CAVEAT EMPTOB. 125 purchaser under the execution succeeding to the benefit of that lien will take the title discharged from the equitable rights of the pur- chaser from the judgment debtor. 1 So, if the judgment debtor incumbers the property after the lien of the judgment has attached, a subsequent sale under the judgment will carry a title to the purchaser discharged of the incumbrance. 2 It has been held, also, that the purchaser will not be entitled to relief upon the ground that all parties were mistaken in supposing that the exe- cution defendant had an interest in the premises subject to execu- tion. 3 ^Tor will a purchaser at an execution sale be released upon the ground that he had never attended such a sale before, and not hearing the terms of the sale, supposed himself to be buying the entire estate in question, and not merely the debtors " right, title and interest " therein. 4 But it has been held that if the execution plaintiff himself purchase the premises under a mistake as to the application of the proceeds to his lien, the same being absorbed by other liens on the property, the sale will be set aside upon his motion. 5 In some of the States sales of realty under execution are required to be reported to court and confirmed before they become conclusive upon the parties. Wherever this practice prevails, it seems that the purchaser may resist the confirmation of the sale upon the ground that the title is bad. 6 1 Halley v. Oldham, 5>B. 'Mon. (Ky.) 238; 41 Am. Dec. 262; Riley v. Million, 4 J. J. M. (Ky.) 895; Fosdick v. Burr, 3 Ohio St. 471. 'Nickles v. Haskins, 15 Ala. 619; 50 Am. Dec. 154; Spoor v. Phillips, 37 Ala. 193. Million v. Riley, 1 Dana (Ky.), 359. Tinney v. Watson, 41 111. 215; Goff v. O'Conner, 16 111. 421. Campbell v. Lowe, 9 Md. 500; 66 Am. Dec. 339. Wil- liamson v. Johnston, 12 N. J. L. 86; Den v. Young, 12 N. J. L. 300: Bloom v. Welsh, 27 N. J. L. 177. 3 Freeman Void Jud. Sales, 49. See post, " Mistake "' ch. 35 ; Wingo v. Brown, 14 Rich. L. (S. C.) 103. The purchaser in this case refused to comply witli the terms of sale, the land was resold, and he was held liable for the difference. Norman v. Norman 26 So. Car. 41. 4 Upham v. Hamill, 11 R. I. 565; 23 Am. Rep. .125. 5 Cummineen held entitled to reimbursement from the execution debtor. 1 A decision of the Kentucky Court of Appeals establishes the proposition that a purchaser at an execution sale may detain the unpaid purchase money if the execution-defendant had no title, pro- vided the sale was made at the instance of the execution-plaintiff.* Inasmuch as most execution sales are made at the instance of the plaintiff, there would be few cases in which the purchaser would not l>e |>ermitted to detain the purchase money on failure of the title, if this decision be sound. The decision is apparently at variance with the rule caveat entptar as applied to execution sales. The pur- chaser, it is presumed, might, by examining the public records, liave informed himself of the existence of the prior conveyance whicli defeated the title. In Louisiana, where the civil law prevails, it seems that tlie pur- chaser at an execution sale may, if the title prove worthless, recover die purchase money either from the plaintiff or the defendant in the execution. 3 1 Maguire v. Marks, 28 Mo. 198; 75 Am. Dec. Itl. Tlichardson TT. MeDongall, 19 Wend. (X. Y.) 80. Sanders v. Hamilton, 3 Daua (Ky.), 550. 1 Bartlett v. London, 7 J. J. Marsh. (Ky.) (541. The case is very brief, and its importance justifies complete reproduct ion here. The report consists only of an opinion liy IJonEtrrsox, Ch. J., which was as follows: "The only question \ve shall consider in this case is, whether the plaintiff is entitled to a per- petuation of his injunction to an enforcement of his sale bond, in consequence of the fact that the defendant in the execution under which the land wns sold (for which the bond was given), hnd no title to the land. It sufficiently appears that I). C., the defendant in the execution, had conveyed the land to A. C., prior to the date of the execution, and there is no proof tending to show that the con- veyance was inoperative or fraudulent. The legal title must, therefore, be deemed to have been in A. C. and not in D. C. at the time of the levy and sale It also suflicieiitly appears that the levy and sale were made at the instance of the defendant in error, who was the plaintiff in the execution. In such cases the purchaser, acting in good faith, as the plaintiff seems to have done, has an equitable right to withhold the consideration. The defendant in error is not without Ivs remedy against his original debtor. Wherefore it is decreed and ordered that the decree of the Circuit Court dissolving the plaintiff's injunction and dismissing his bill. IK- reversed and the cause remanded, with instructions to perpetuate the injunction." Sec, also. Brumuiel v. Hunt, 8 J. J. Marah. (Ky.) 709. See Citizens' Bank v. Prcitag. 7 La. Ann. 71. CAVEAT EMPTOR. 59. Fraudulent 'representations as to title. If a purchaser at an execution sale be induced to bid by the fraudulent representa- tions of the sheriff, the execution creditor, or the execution debtor respecting the title, he will have his remedy, but whether by avoid- ance of the sale, and the detention or the recovery back of the pur- chase money, or by action against the wrongdoer to recover damages for the deceit, is not harmoniously determined by the authorities. There are cases which hold that if the purchaser has been purposely deceived as to the state of the title by any one interested in making the sale, he will be released from his bid and the sale vacated upon his motion. 1 Other cases hold that the sheriff is not the agent of the parties interested in the land, and that if he fraudulently mis- represent the title he is personally liable to the purchaser for the damages thence accruing, but that the sale itself must stand ; 2 also, 3 Rocksell v. Allen, 3 McLean (U. S.), 357. Chambers v. Cochran, 18 Iowa, 159. Wingo v. Brown, 14 Rich. L. (So. Car.) 103. Moore v. Allen, 4 Bibb (Ky.), 41. Webster v. Haworth, 8 Cal. 21, 26; 68 Am. Dec. 287, which was a sale on execution, the execution creditor falsely representing that his judgment was the first lien on the property. The purchaser was relieved from the payment of the purchase money, the court saying: "It is said that the maxim caveat emptor applies to judicial sales, and that the defendant (purchaser) cannot avail himself of the misrepresentations of the plaintiff (execution creditor), as he had access to the records of the county, and might have informed himself upon the subject. Grant that the maxim caveat emptor applies to sheriffs' sales, it has never been carried to the extent that such a sale could not be impeached on the ground of fraud or misrepresentation. The maxim only applies thus for. that the purchaser is supposed to know what he is buying, and does so at his own risk. But this pre- sumption may be overcome by actual evidence of fraud, or it may be shown that, in fact, the party did not know the condition of the thing purchased, and was induced to buy upon the faith of representations made by those who, by their peculiar relations to the subject, were supposed to be thoroughly acquainted with it. The fact that the defendant (purchaser) might have examined the pub- lic records does not alter the case. Before such an examination could have been had, the sale would have been over, and he would have lost the opportunity to purchase. If, under these circumstances, he applied to the judgment creditor for information, and, acting upon that information, was misled to his prejudice, he should be relieved, and the actual party in interest estopped from claiming a:i advantage resulting from his own misrepresentation of facts, whether will- fully or ignorantly made." 4 Hensley v. Baker, 10 Mo. 157, 159, obiter. See Mellen v. Boarman. 13 Sm. & M. (Miss.) 100. Stoney v. Shultz, 1 Hill Eq. (So. Car.) 464; 27 Am. Dec. 429. Weidler v. Bank, 11 Serg. & Rawle (Pa.), 134. It is the duty of the sheriff to announce defects of title of which he is informed, and if he conceals them he and 17 130 MARKETABLE TITLE TO REAL ESTATE. that if the parties in interest are guilty of fraud, the remedy is bj action of deceit. 1 In Pennsylvania it has been intimated that if the purchaser be induced by the sheriff to suppose that he will get a complete legal title, and on that presumption he bids the full value of the clear legal estate, he will be entitled to relief, notwithstanding the rule caveat emptor? 60. Riyhte of purchaser from purchaser under execution. A purchaser at an execution sale cannot then, with the exceptions already noted, refuse to pay the purchase money on the ground that the title has turned out to be worthless, his bid being presumed to have teen made with that contingency in view. 3 But one who pur- chases from a purchaser under execution has, of course, a right to demand a conveyance of an indefeasible estate in the absence of any agreement, express or implied, to the contrary. The circum- stance that a vendor holds under a sheriffs deed, if known to the purchaser, may, however, be entitled to some weight in settling a dispute between the parties as to the kind of title the purchaser was to receive. 61. Title under a void judgment. The title of a purchaser at a sale under execution may be worthless because the judgment on which the execution issued was void for want of jurisdiction, or for some other reason was open to collateral attack. The validity of titles under execution comes in question in the ordinary case of the sureties on his official bond will be liable to the purchaser. Comin'th v. Dickinson, 5 B. Mon. (Ky.) 506; 43 Am. Dec. 139; McGhee v. Ellis, 4 Litt. (Ky.) 244; 14 Am. Dec. 124; Wolfortl v. Phelps, 2 J. J. Marsh. (Ky.)31. In Dwight's Case, li> Abb. Pr. (N. Y.) 259 (O. 8.), a purchaser at an execution sale had been induced to bid by the representations of the plaintiff's attorney that the title was good, the fact being that the defendant had conveyed away the premises before tin- judgment, under which the sale was made, had been docketed. The pur- chaser was relieved. If the sheriff sell personal property, knowing that the title is bad, and fails to disclose that fact to the purchaser, he will be liable in dam- ages. Harrison v. Shanks, 13 Bush (Ky.), 690. 1 Davis v. Murray. 2 Const. Rep. (So. Car.) 143; 12 Am. Dec. 661; Kilgore v. Peden. 1 Strobh. L. 18. 21, citing Winter v. Dent, M8S. and Towles v. Turner, 8 Hill (So. Car). 178; Tucker v. Gordon, 4 Drams. Eq. (S. C.) 5!). Auwerter v. Mathiot, 9 Serg. & H. (Pa.) 397, 408; Cumming's Appeal, 23 Pa. St. WH*. r!2. Ante, f 57. CAVEAT EMPTOI?. 131 vendor and purchaser when the vendor derives title through a sheriff's deed, immediately or remotely, and in contests between the sheriff and the purchaser at the execution sale. It is plain that a title resting upon a void judgment cannot be forced upon one who, by the terms of his contract, express or implied, may demand a marketable title. 1 It remains then to consider whether a purchaser from the sheriff, having regard to the maxim caveat emptor, may refuse to complete his contract or demand restitution of the pur- chase money upon the ground that the judgment upon which the execution issued was absolutely void. We have already seen that mere error and irregularities in judicial proceedings do not expose a judgment or decree to collateral attack, and, therefore, do not affect the title of a purchaser at a judicial sale. What is there said applies with equal force to titles under execution sales. The reversal of an erroneous judgment does not affect the title of a purchaser under the judgment 2 unless the judgment plaintiff was himself the purchaser. 3 Nor do mere irregularities in the proceedings subse- quent to judgment, for example, failure of the sheriff to make return or a correct return of the execution vitiate the title of the purchaser, 4 though there are matters occurring after judgment that will render a sale under execution absolutely void, as will be seen hereafter. 5 1 Post, ch. 30, 297. 8 Ante, p. 88; Backhurst v. Mayo, Dyer, 363; Drury's Case, 8 Coke, 281 (early ed. 143). Shultz v. Sanders, 38 N. J. Eq. 154. Williams v. Cummings, 4 J. J. Marsh. (Ky.) 637; Reardon v. Searcy, 2 Bibb (Ky.), 202; Brown v. Combs, 7 B. Mon. (Ky.) 318. McLogan v. Brown, 11 111. 519. Smith v. Kel- ley, 3 Murp. (N. C.) 507. McGuire v. Ely, Wright (Ohio), 520. 8 Freeman on Judgments, 482; Freeman on Executions. 347. See ante, p. 89, as to judicial sales. Bank of U. S. v. Bank of Washington, 6 Pet. (U. S.) 19. Bryant v. Fairfleld, 51 Me. 148. Mullin v. Atherton, 61 N. H. 20. Stroud v. Kasey, 25 Tex. 740; 78 Am. Dec. 556. Kingsbury v. Stoltz, 23 111. App. 411. Reynolds v. Harris, 14 Cal. 667; 76 Am. Dec. 459. Turk v. Sidles, 38 W. Va. 404. Hoe's Case, 5 Coke, 90 (Lond. ed. 1826, vol. 3, p. 183); Goodyere v. Ince, Cro. Jac. 246; Eyre v. Woodfine, Cro. Eliz. 278. 4 Forest v. Camp, 16 Ala. 642; Love v. Powell, 5 Ala. 58; Driver v. Spence, 1 Ala.' 540. Heath v. Black, 7 Blackf. (Ind.) 154; State v. Salyers, 19 Ind. 432. Clark v. Lockwood, 21 Cal. 220. Phillips v. Coffee, 17 111. 154; 63 Am. Dec. 357. Shaffer v. Bolander, 4 Greene (Io.), 201. 5 Post, 62. Webber v. Cox. 6 T. B. Mon. (Ky.) 110: 17 Am. Dec. 127. Miner v. Natchez, 4 Smed. & M. (Miss.) (502; 43 Am. Dec. 48S. Hendrickson v. MAKKETAISI.K TITLE TO REAL ESTATE. A purchaser at a sale under execution, issued on a void judgment, acquires no title. 1 The weight of authority seems to be that if the proceedings in a suit antecedent to the sale under execution are so defective that a title free from collateral attack by a party to the suit cannot IHJ assured to the purchaser, he will be relieved from his bid, if the purchase money remains unpaid. The proceedings prior to the sale must be adequate to divest the title of the judgment debtor. " Every purchaser," says a recent writer upon this subject, 'has a right to suppose that by his purchase he will obtain the title of the defendant in execution. The promise to convey this title is the consideration upon which his bid is made. If the judgment is void, or if, from any cause, the conveyance when made cannot invest him with the title held by the parties to the suit or proceeding, then his bid or other promise to pay is without consideration, and cannot be enforced against him. He may successfully resist any action for the purchase money, whether based upon the bid or upon some lxnd or note given by him." 2 These principles address them- selves to our sense of equity and right, and many cases may be found which sustain them. 3 But it is not to be denied that they strongly encroach upon, and are, perhaps, inconsistent with the doctrine caveat ei/iptor as applied to execution sales. Want of juris- diction rendering the judgment void must appear upon the face of the proceedings resulting in the judgment, and the purchaser, by examining the proceedings, would l>e advised of the defect. If he Railroad Co.. 34 Mo. 188; 84 Am. Dec. 76. Smith v. Kelley, 3 Murph. (N. C.) 507. Jackson v. Roscvelt, 18 Johns. (X. Y.) 97. Riddle v. Bush, 27 Tex. 675. 1 RolH-rts v. Stowere, 7 Bush (Ky.). 295. Colling v. Miller, 64 Tex. 118. ' Freeman Void Jud. Sales, % 48. Bynum v. Govan, (Tex.) 29 S. W. Hep. 1119; Halscy v. Jones. (Tex.) 25 8. W. Rep. 96. The same principles have hcen applied in respect to probate and judicial stiles proper. Sec those titles, ante, tliis chapter. 'Boykin v. Cook, 61 Ala. 472, the court guying: " If the sale be void then no one is bound by the purchase; and unless the plaintiff actually realizes the pro- ceeds the debt remains unsatisfied." Thrift v. Fritz, 77 III. 55. This, however, wasa judicial side. Burns v. Ledbctter. 56 Tex. 2W8. The cases of Dodd v. Nelson, 90 N. Y. 248. and Vcrdin v. Slncuni. 71 X. Y. 345. arc cited to the text proposi- tion in Freeman on Void Jud. Sales. 48. but it will be found on examination that UH-SC were judicial or quasi judicial sales, in which the purchaser was merely rcwUtiiig a confirmation nf the side, on the ground that the title was defective a ripht which is conceded to him, we believe, everywhere. CAVEAT EMPTOK. 133 chooses to bid without examining the record he must, if the rule caveat emptor is to be strictly applied, accept the risk of eviction and complete his purchase. It is as easy for him to inform himself as to want of jurisdiction in the court to render the judgment under which the sheriff sells, as it is to discover a want of title in the exe- cution defendant, and no reason is perceived why he should be held to his bargain in the one case and relieved in the other. It would seem more consistent to relieve him in both cases, or to hold him bound in both. In Pennsylvania a purchaser at a sheriff's sale may move to have to have the sale set aside at any time before the deed is exe- cuted and delivered. This was done in a case in which the purchaser at a sale under execution on a void judgment, bid to protect 'his interests as a mortgagee of the premises. The sale was set aside and the purchaser relieved from his bid. 1 62. Title under a void execution sale. The judgment on which an execution is issued may be unimpeachable, and the title of the defendant may be indefeasible, yet, for some matter occurring after the rendition of judgment, the title of a purchaser under the execution may be worthless. The reports abound with cases in which the judgment debtor, or those claiming under him, have recovered the premises from the execution purchaser or his assigns, upon the ground that the sale itself, without regard to the validity of the antecedent judgment, was void. This has occurred, to men- tion some of the most notable instances, where a sale has been made under an execution levied after return day ; 2 under an execution against " William V.," on a judgment against " II. W. Y. ; " 3 under execution issued after the death of the execution defendant, the judgment not having been revived ; 3 where an appraisement had not been made or waived, and the land sold for less than its appraisable 1 Connelly v. Philadelphia, 86 Pa. St. 110; Shakespeare v. Delaney, 86 Pa. St. 108. 2 Freeman on Executions, g 58, 106, and cases cited. Hawes v. Rucker, (Ala.) 11 So. Rep. 85; Morgan v. Ramsey, 15 Ala. 190; Smith v. Munday, 18 Ala. 182; 53 Am. Dec. 221. Jefferson v. Curry, 71 Mo. 85. Cain v. Woodward, (Tex.) 13 S. W. Rep. 319; Terry v. Cutler, 4 Tex. Civ. App. 570; 23 S. W. Rep. 539. Contra, Jackson v. Rosevelt, 13 Johns. (N. Y.) 97. 'Morris v. Balkham, 75 Tex. Ill; 12 S. W. Rep. 970. 4 Cunningham v. Buck, 45 Ark. 267. 134 MARKETABLE TITLE TO REAL ESTATE. value ; * where the sheriff sold the fee simple instead of tirst offering the rents and profits for seven years, as required by statute ;* where the sheriff sold premises i:i the hands of a receiver without leave of the court ; s where the sheriff sold upon a day other than one pre- scribed by law ; * where the sale was made by the sheriff of A. county under an execution directed to the sheriff of B. county ; * where the sale was made under an execution issued on a judgment that had been paid, though not satisfied of record, 6 and under an execution issued on a justice's judgment which was not docketed until it had become barred by limitation. 7 Numerous other instances of void sales under execution will be found in the reports of the several States. The rule that a sale under a void judgment does not bind the purchaser, applies with equal force, it is conceived, where the sale itself is void because of some matter occurring subsequent to the judgment, or because the officer had no authority to sell. Upon thi* point it has been said by an able judge: "The general rule very clearly is that there is no implied warranty in sales made by a sheriff or other ministerial officer in his official capacity, but that applies exclusively to the quality and property of the thing sold. 1 Capital Bank v. Huntoon, 35 Kans. 577; 1 Pac. Rep. 869, and cases there cited. See Freeman Void Jud. Sales, 27. Contra, Shaffer v. Bolander, 4 Greene (Io.), 201. Oantly v. Ewing, 3 How. (U. S.) 707, disapproving Doe v. Smith, 4 Blackf. 'French \. Pratt. 7 N. Y. Supp. 240; otherwise, if the judgment on which the execution issued was rendered before the appointment of the receiver. In re Loos, 50 Hun iN. Y.), 67; 3 N. Y. Supp. 883; Bank v. Risley, 19 N. Y. 869. Lowdermilk v. Corpenning, 101 N. Car. 649; 8 8. E. Rep. 117, and cases there cited. But see contra. Brown v. Christie, 27 Tex. 75; 84 Am. Dec. 607. T.-rry v. Cutler, 4 Tex. Civ. App. 70; 28 S. W. Rep. 589. Shaffer v. McCracken, (Iowa) 58 N. W. Rep. 510. Norgren v. Edson, 51 Minn. 567; 68 N. W. Rep. 876. Hardin v. rhirk. 1 T< v Civ. App. 565; 21 S. W. H.-p. 977. If a judgment has been satisfied, thmiirh not i-aneelrd of reeonl, a Imnafde purchaser under :in execution issued on the judgment will pet no title. Wood v. in, 2 Hill (N. Y.), 566; 88 Am. Dec. 598; Carpenter v. Stilwell, 11 N. Y. 61; Craft v. Merrill. 14 N. Y. 466. He succeeds merely to the position of the judgment creditor, subject t.i ;ill equities in favor of the judgment debtor, without regard to the question of notice. Frost v. Yonkere Sav. Bank, 70 N. Y. 558; 26 Am. Rep. 27. 8ee mntra, Nichols v. Dissler, 81 N. J. L. 461; 86 Am. Dec. 219. Cowcn v. Withrow, (N. Car.) 19 S. E. ! CAVEAT EMPTOR. 135 Thus, in a sale made by a sheriff of goods taken in execution, there is no implied warranty on the part of the sheriff that the goods are intrinsically worth anything, or that the defendant has any property in them. He only undertakes to sell the interest which the defendant may happen to have in the goods, in the condition in which they are. But the principle does not apply where the sheriff or other officer assumes an authority where none is given by law. It will hardly be questioned that if a sheriff induce persons to purchase at his sale by pretending that he has the authority of law for the sale, when in truth he has not, the purchaser must be without remedy. It is a fraud for which he would be responsible, and the principle applies equally where he acts upon a void authority. In any case the sheriff is bound to show that ho is legally authorized to do that which he assumes to do mrtute officii." l It is to be here observed that if an execution defendant, or one who succeeds to his rights, having grounds upon which the sale under execution may be col- laterally attacked, be guilty of laches in the assertion of that right, so that by reason of his negligence the purchaser or his assignees so alter their situation with respect to the property that to vacate the sale would inflict great injury upon them, the sale will be per- mitted to stand. 2 So, also, if the defendant accept the surplus of the proceeds of the sale, after the execution has been satisfied, such acceptance being deemed a ratification of the sale, or at least a waiver of the right to attack the sale. 8 A purchaser at a sale under execution cannot be affected by secret frauds and irregularities of which he had no notice. 4 And, generally, it may be said that a pur- chaser from one who holds under a sheriff's deed cannot be affected by any defect or invalidity in the sale itself or in the proceedings anterior thereto of which he had no notice. These propositions being sound, it is plain that the purchaser under execution could not seek relief from his bid in a case in which he might successfully resist a collateral attack upon the title as a purchaser without notice of the matters and things upon which the attack is based. 1 Stoney v. Shultz, 1 Hill Eq. (S. C.) 464; 37 Am. Dec. 429. 5 Regney v. Small, 60 111. 416. Capital Bank v. Huntoon, 35 Kans. 577; 11 Pac. Rep. 772. Freeman Void Jud. Sales, 50. Huffman v. Gaines, 47 Ark. 226; 1 S. W. Rep. 100. 4 Freeman Void Jud. Sales, 41. "136 MARKETABLE TITLE TO REAL ESTATE. 63. TAX SALES. The maxim caveat eniptor applies with great strictness to tax sale*. 1 Tax titles are esteemed the most uncertain of all, and are universally regarded with suspicion and distrust ; hence it is but seldom that property sold for nixes brings more than the amount of the taxes due. The purchaser buys at a mere nominal price, and if he gets nothing by his purchase, he has, in the absence of statutory provisions, no recourse upon any one. In some of the Stales, however, he is by statute in a manner ntmgated to the bene- fit of the tax lien discharged with the money arising from the sale ; the person seeking to have the sale vacated being required as a con- dition of relief to reimburse the purchaser to the extent of the taxes legally chargeable on the land, with costs of sale and interot. In other States, in case of a sale void for errors and omissions in the proceedings the purchaser is allowed to have rec>ur>e upon the city or county by whose authority the sale and conveyance was made. 9 The rule caveat emptor has been held to extend not only to pur- chasers at tax sales, but to transferees of the title so acquired. Thus, it has been held that the assignor of a tax lease given upon a sale for unpaid taxes, warrants nothing more than the genuineness of the lease and his ownership. It is presumed that the assignee took the title at his own risk. 8 64. SALES BY TRUSTEES, ASSIGNEES, ETC. The rule ,*i'.,it emptor has been held to apply to sales under trusts for the payment of debts. The trustee, it has been said, sells merely such title as is vested in him by the deed creating the trust, and there is no implied warranty on his part that the title is good, so that if the title be in fact defective, the purchaser can neither detain the unpaid purchase money nor recover hack that which has been paid. 4 Such a sale 1 Blackwell on Tax Titles, 994; Black, on Tax Titles (2d ed.), 468. Tl><- onn and authorities will he found collected in these works. The limits ..I thi. trM&fee will not admit of their consideration here at length. 1 Black, on Tax Titles aM cd.i. i;: 4<14. 477. et se<|. ; LopuiHport v. Case. 124 In!, distinguished in H.-nsel v Gray, 80 N V m 'Rawle CovU. (5th cd.) 388 n.; 26 Am. & Km:. Km-\ C of L. 934, 940; Button T. Button, 5 Grat. (Va,) 234; M Am. Dec. 10i; I', t.-rman v Laws, 6 Leigh (Va.), CAVEAT EMPTOB.. 137 stands upon the same footing as would a sale by the trust grantor himself, with express disclaimer of good title. Bnt where the trustee, selling at public auction, announces that the land is sold free and clear of all incumbrances, and it afterwards appears that incum- brances exist, it has been held that the purchaser will be relieved. 1 It seems, however, that if the conveyance to the trustee contains covenants for title, the benefit of them will pass to the purchaser at the trustee's sale, and he may maintain an action thereon against the grantor. 2 And if the sale be for any reason void, other than for fraud on the part of the purchaser, he will be subrogated to the rights of the creditor secured by the trust. 3 If by mistake the pur- chaser gets materially less land than the trustee purported to sell, it has been held that he cannot recover back such part of the purchase money as may have been paid, from the trustee or the beneficiary of the trust, but that he may apply to the court for a rescission of 529. Fleming v. Holt, 12 W. Va. 143. In this case, the court, after observing that the purchaser at a judicial sale, that is, a sale by a commissioner of the court, might object to the title at any time before confirmation of the sale, con- tinued: " A sale by a trustee, like a sale by a commissioner, is without warranty, but there is this obvious difference between the two: The contract of the pur- chaser at a sale by the commissioner is incomplete till his bid is accepted by the court, who is the real seller of the property, the commissioner of sale being the mere agent of the court. The bid is accepted by the court by the confirmation of the sale; after that, though the purchaser, before the deed is made to him, finds out that the title to the land is defective, he is, nevertheless, bound to receive it and pay the purchase money. In a sale by a trustee, the court does not accept the bid of the purchaser, but it is accepted by the auctioneer when he knocks the land down, and on the making by him of a memorandum of the sale and its terms signed by the auctioneer, the contract for the sale is as com- plete as the contract for the sale made by a commissioner is when the court accepts the bid by confirming the sale. After such knocking down of the land by the auctioneer and the making of the memorandum, the purchaser must accept the deed and pay the purchase money, though he does find the title defective. He must, if he wishes to do so, investigate the title in this case, as in the other, while the contract is incomplete; that is, in the last case, before the land is knocked down to him." In other words, he must examine the title before he, bids, and if he bids without examining the title, he takes the risk of the failure of title. 1 Schaeffer v. Bond, 70 Mo. 480. s This, upon the principle that any kind of a conveyance will pass the benefit of covenants for title. Post, " Covenant of Warranty," 157. 3 Clarke v. Wilson, 56 Miss. 753; Bonner v. Lessly, 61 Miss. 392. 18 138 MAKKETABI.E TITLE TO REAL ESTATE. the contract, and to have the sale set aside, thereby relieving him from the payment of deferred installments of the purchase money. 1 The rule caveat emptor applies also to sales under assignments to secure the payment of debts, and to sales by assignees in bank- ruptcy. 3 It has been held, however, that if assignees in bankruptcy advertise in the usual way, that is, without stating that they will sell only such estate as the bankrupt has, they cannot compel specific performance if the title be bad. 8 In New York it has been held that there is an implied contract at a sale by an assignee in bank- ruptcy that the contract is good, but if the purchaser accept a con- veyance without covenants, he will be without relief. 4 Sales by guardians are made only in pursuance of judicial author- ity, and are subject to confirmation by the court. The purchaser will be entitled to a reference if the title is doubtful, and, of course, may resist confirmation of the sale if the title be defective. 5 After the sale is confirmed it is apprehended upon general principles that the rule caveat emptor applies, at least so far as to prevent restitution of the purchase money upon the ground of a paramount title out- standing in a stranger. The purchaser may object that a guardian's sale, under which the vendor claims title, was made without notice to the wards of the proceeding in which the authority to sell was obtained. 8 But the validity of a sale by a foreign guardian, who has complied with the requirements of the statute in making the sale, cannot be collaterally attacked by the purchaser in an action for the purchase money. 7 65. SUBROGATION OF PURCHASER AT JUDICIAL AND MIN- ISTERIAL SALES. Subrogation where sale is void. We have seen that a purchaser who, by the terms of his contract, express or 1 Coons T. North, 27 Mo. 78. * Ante, this section. As to sales by assignees in bankruptcy, post, this section and cases cited. McDonald v. Hanson. 12 Ves. 277; White v. Folzambe, 11 Ves. 844; Devcr. 11 T. Bolton, 18 Ves. 511. overruling Pope v. Simpson, 5 Ves. 145. M'l lir k v. Post, in N. V. 17; 20 N. E. 1{,-|. In re Browning, 2 Paige Ch. (N. Y.) 04. In this case the title was referred though the sale h;ul l><-rn mnflrmcd. Sec. also. Brown v. Christie, 27 Tex. 78; *l Am. Dec. 607. Shipp v. \Vl.rleas. 88 Miss. 647. Wil.-y v. White, 8 Stew. & P. (Ala.) 855. 'Pfc-rrman v. Wntth-s. Hfl Midi -,'.%4: 4i N \V. |{,-p. 40. CAVEAT EMPTOE. 139 implied, is entitled to a conveyance of the premises free from incnmbrances, may, for the protection of his estate, pay off any lien or charge upon the property, and be subrogated to the benefit thereof against the vendor ; he may either deduct the amount so paid from the purchase money remaining due, or, if the purchase money has been paid, he may enforce the lien or charge against other estate of the vendor. 1 This right is given by law, and is in nowise rested upon any implied contract between the parties. 2 But the equitable doc- trine of subrogation as enforced in behalf of a purchaser at a judi- cial or ministerial sale, is much more restricted in its application. He cannot discharge incumbrances on the property, and assert them against the creditor at whose instance the sale was made, by deduct- ing the amount so expended from the unpaid purchase money, nor, as a general rule, enforce them against the estate of the debtor whose liability was solved by the proceeds of the sale. If he is sub- rogated at all, it is to the rights of the creditor at whose instance the sale was made, and not to the rights of a stranger, whose claim he satisfies in order to protect his title. We shall, however, consider the subject in the two following aspects : (1) Where the sale was void, and the proceeds have been applied to the discharge of some lien upon the premises, or of some liability of the debtor. (2) Where the sale was valid, and the purchaser has been evicted from the premises by an adverse claimant, or compelled to remove prior incumbrances in order to protect his title. Subrogation of a purchaser at a void judicial or ministerial sale may be accomplished either by allowing the purchaser to enforce against the claimants of the estate, the specific lien, charge, debt or liability for the collection of which the invalid sale was made, or by compelling such claimants to refund to the. purchaser, as a condition precedent to the recovery of the estate, the purchase money paid by him at the sale, and applied to the satisfaction of such debt or lien. In this way substantial justice is done between all parties, and the effect is especially beneficial to the debtor and the creditor, for such a practice lessens the danger of loss to the purchaser, and encourages bidding at judicial and ministerial sales. Besides, " nothing can be more unjust than to permit a debtor to recover back his property, 1 Post, 204. s Sheld. Sub. 1. 140 MARKETABLE TITLE TO 17EAL ESTATE. because the sale was irregular, and yet allow him to profit by that irregular sale to discharge his debts. 1 " ' There are cases which decide that a purchaser at a void judicial or ministerial sale cannot be subrogated to the benefit of the debt or lien discharged by the proceeds of the sale, some upon the ground that the rule caveat emptor denies the purchaser relief; 2 some upon the ground that payment of the debt with the proceeds of the sale is an absolute satisfaction thereof, and leaves nothing to which the purchaser can claim to be subrogated, 8 and some upon the ground that the purchaser is a mere volunteer and entitled to no considera- tion. 4 It is not to be denied that the doctrine is incompatible with a strict application of the rule caveat emptor, for in most cases the purchaser would be advised, upon diligent inquiry, that the steps necessary to a valid sale had not been taken. The case is merely one in which the rule caveat* emptor is subordinated to the higher 1 Dufour v. Camfranc, 11 Mart. (La.) 615; IS Am. Dec. 360. * Frost v. Atwood, 78 Mich. 67, the court saying: "Every one is bound to satisfy himself of the authority under which a judicial sale is made and buys at his peril. It would be a contradiction in terms to hold a sale void for want of authority to make it and yet valid enough to create a lien for the purchase money. Where individuals sell their own lands and receive pay for them, there :ni !>< no want of authority, and the question is only one of title. But a sale made by quit -claim deed without covenants and without fraud or misrepresenta- tion docs not entitle the purchaser to reclaim his money. This bill is an attempt not only to give to a void probate sale the effect of a warranty, but to go further and bind the land itself, which was sold without right, for its repayment." Biiihop v. O'Conntr, 69 111. 481, distinguishing Kinney v. Knoebel, 51 111. 112; Baasett v. Lockwood, 60 111. 164. Salmond v. Price, 13 Ohio, 383; 43 Am. Dec. 204. 1 Richmond v. Marston, 15 Ind. 184. Disapproved in Muir v. Berkshire, 52 Ind. 140. 4 Richmond v. Varston, 15 Ind. 184. Disapproved in Muir v. Berkshire, 52 Ind. 140. Vnllc v. Fleming, 20 Mo. 163; 77 Am. Dec. 557, the court saying that the law bates " the equitable rights of the purchaser, not upon his knowledge or igno- rance of the condition of the title, but upon the ground that the purchaser has discharged a judgment against the estate or debtor for which the one or the other Mtood chargeable by a purchase of property made under process of the law, and, therefore. IUIH the equitable right to be reimbursed out of the estate or property of tin- debtor." In Wilson v. Holt, 88 Ala. 528: 8 So. Rep. 821, it was doubted whether the rule cnrtat tmptnr would extend to defect* which would not be dis- closed by an examination of the claim of title or to see-ret "quitics which could not have been discovered by the exercise of ordinary diligence. CAVEAT EMPTOIt. 141 equities of the purchaser. The objection that the lien or debt is dis- charged, and that there is nothing to which the purchaser can be subrogated, appears merely sophistical, and would, if sound, destroy the doctrine of subrogation in any case, and the argument that the purchaser is a volunteer would seem to deserve as little considera- tion, for the sale is treated as an equitable assignment, or rather an assignment by operation of law, of all the rights, powers and privi- leges of the creditor in the premises. 1 The purchaser obviously does not stand upon the same ground as one who officiously pays the debt of another. Accordingly the weight of authority in America has established the rule that an innocent purchaser at a sheriff's 2 or administrator's 3 sale, or other ministerial or judicial 1 Brobst v. Brock, 10 Wall. (U. S.) 519. Robinson v. Ryan, 25 N. Y. 320; Jackson v. Bowen, 7 Cow. (N. Y.) 13; Stackpole v. Robbins, 47 Barb. (X. Y.) 212. Seller v. Lingerman, 24 Ind. 264; JVIuir v. Berkshire, 52 Ind. 149; Carver v. Howard, 92 Ind. 172. Gilbert v. Cooley, Walker's Ch. (Mich.) 494. Johnson v. Robertson, 34 Md. 165, a case in which a foreclosure sale was declared void for want of jurisdiction of the persons of the defendants. The court, by ALVEY, J., said: " The purchaser should be protected so far that if he has paid the purchase money, and it has been applied to the payment of the mortgage debt, or so far as he has paid and applied the purchase money, he should be sub- rogated to the mortgagee, and the mortgage, to the extent of such payment, treated as assigned to him. 5 Sheldon on Subrogation, 38; 24 Am. & Eng. Encyc. of L. 261; 24 id. 571; Freeman Void Jud. Sales, 52. Beeson v. Beeson, 9 Pa. St. 279; Jackson v. McGinniss, 14 Pa. St. 331. Webb v. Coons, 11 La. Ann. 252. Howard v. North, 5 Tex. 290; 51 Am. Dec. 769; Andrews v. Richardson, 21 Tex. 287; Morten v. Welborn, 21 Tex. 772; Stone v. Darnell, 25 Tex. Supp. 430; 78 Am. Dec. 582; Johnson v. Caldwell, 38 Tex. 217; McDonough v. Cross, 40 Tex. 285; Burns v. Ledbetter, 56 Tex. 282; Jones v. Smith, 55 Tex. 383. O'Kelly v. Gholston, (Ga.) 15 S. E. Rep. 123. Rev. St. Ind. 1881, 1084; Reilly v. Burton, 71 Ind. 118; Ray v. Detchon, 79 Ind. 56; Short v. Sears, 93 Ind. 505; Gillette v. Hill, 102 Ind. 531; 1 N. E. Rep. 551; Paxton v. Sterne, 127 Ind. 289; 26 N. E. Rep. 557. Bentley v. Long, 1 Strobh. Eq. (So. Car.) 43; 47 Am. Dec. 523. Sands v. Lyn- ham, 27 Grat. (Va.) 291; 21 Am. Rep. 348, which, however, was a sale under decree in chancery to enforce a judgment lien. Brown v. Brown, 73 Iowa, 430. Goring v. Shreve, 7 Dana (Ky.), 64. McHany v. Schenck, 88 111. 357. Spindler v. Atkinson, 3 Md. 423; 56 Am. Dec. 755; Campbell v. Lowe, 9 Md. 500; 66 Am. Dec. 339. 3 Sheld. on Subrogation, 209; Woerner's Am. Law of Adm. % 485. Davis v. Gaines, 104 U. S. 386. Blodgett v. Hitt, 29 Wis. 169; Winslow v. Crowell, 32 Wis. 639. Halsey v. Jones, 86 Tex. 488; 25 S. W. Rep. 696. Neel v. Carson, 47 Ark. 421; 2 S. W. Rep. 107. Rev. St. Ind. 1881, 1084; Walton v. Cox, 67 Ind. 164; Duncan v. Gainey, 108 Ind. 579; 9 N. E. Rep. 470; Stutts v. Browne, 142 MARKETABLE TITLE TO REAL ESTATE. sale, 1 will, if -such sale, for any cause, prove invalid, be subrogated to all the rights, remedies and privileges of the creditor at whose instance such sale was made, and that the purchaser will have a lien on the land for his reimbursement if he be in possession. 2 In some of the States this right is secured to the purchaser by statute. 3 A pur- chaser at a probate sale will not be substituted to the benefit of the claim against the heirs or devisees if the land sold was not in fact liable to the satisfaction of such claim. The purchaser cannot acquire any rights in the premises greater than those of the executor or administrator. 4 If the admistrator misappropriate the purchase 112 Ind. 370; 14 N. E. Rep. 230. Hudgin v. Hudgin, 6 Grat. (Vi..) 320; 52 Am. Dec. 124; Sands v. Lynluun, 27 Grat. (Va.) 291; 21 Am. Rep. 348. Springs r. Harven, 3 Jones Eq. (N. Car.) 96; Perry v. Adams, 98 N. Car. 167; 3 S. E. Rep. 729. Robertson v. Bradford, 73 Ala. 116; Wilson v. Holt, 83 Ala. 528; 3 So. Rep. 321; Ellis v. Ellis, 84 Ala. 348; 4 So. Rep. 868. Valle v. Fleming, 29 Mo. 152; 77 Am. Deo. 557; Haff v. Price, 50 Mo. 228; Shroyer v. Nickell, 55 Mo. 264; Jones v. Manley, 58 Mo. 559; Evans v. Snyder, 64 Mo. 517; Sims v. Gray, 66 Mo. 613; Snider v. Coleman, 72 Mo. 568; Schaefer v. Causey, 8 Mo. App. 142. Lee r. Gardiner, 26 Miss. 521; Jayne v. Boisgerard, 39 Miss. 796; Short v. Porter, 44 Miss. 533; Gaines v. Kennedy, 53 Miss. 103; Hill v. Billingsly, 53 Miss. Ill; Cole v. Johnson, 58 Miss. 94; McGee v. Wallis, 57 Miss. 638; 84 Am. Rep. 484; Pool v. Ellis, 64 Miss. 555; 1 So. Rep. 725. Cathcart v. Sugenheimer, 18 So. Car. 123, where the principle of the text was applied to an invalid sale of a lunatic's lands for tin- payment of his debts. Levy v. Riley, 4 Oreg. 892, aemble. Contra, Nowler v. Colt. 1 Ohio, 519; 18 Am. Dee. 640. 'Jones on Mortgages, 874 et geq.: 26 Am. & Eng. Eneyc. of Law, 935; 24 id. 261; Sheldon on Subrogation, g 31, 33. The majority of the illustrations below were cases of invalid foreclosure sales. Robinson v. Ryan, 25 N. Y. 820; Wins- low v. Clark, 47 N. Y. 261; Miner v. Beekman, 50 N. Y. 387. Johnson v. Sand- boff, 30 Minn. 197. Honaker v. Shough, 55 Mo. 472. Prische v. Kramer. 16 Ohfo, 125; 47 Am. Dec. 868. Curtis v. Gooding, 99 Ind. 45. Hays v. Dalton, 5 Le(Tcnn.). 555. Haymond v. Camden, 22 W. Va. 180; Hull v. Hull, 35 W. Va. 155; 18 8. E. Rep. 49. Contra, Branham v. San Jose, 24 Cal. 585. Geohcgan v. Ditto. 2 Metr. (Ky.) 488; 74 Am. Dec. 418. If the purchaser la fully suhrogated to all the rights of the judgment creditor he would have a lien by virtue of the judgment, it would seem, without regard to the question of 1 Rev. Code N. Car. ch. 45. 27. Code Civ. Proc. Cal. g 708; Hitchcock v. Caruther*. 100 Cal. 100. Rev. St. Iowa (1865), 8821. Code Civil Proc. N. Y. % 1440. But the purchaser will not, under this statute, be entitled to relief if ho be guilty of fraud at the sale. 4 Frost v. Atwood. 78 Mich. 67. In thin case an administratrix procured a license to sell for the payment of debts certain devised estate in the hands of the devisee, when, by the law of Michigan, the creditor alone and not the admin- CAVEAT EMPTOK. money derived from the invalid sale, so that the same shall not have been applied to the payment of the debts of the estate, there will be nothing to which the purchaser can be subrogated, and he will be without relief. 1 The rights of the purchaser in the premises are co-extensive with those of the creditor to whom he claims to be subrogated. If the debt discharged from the proceeds of the sale under execution was not a lien or charge upon the property sold, the doctrine of subrogation does not apply. 2 Nor can the purchaser claim any priority or precedence to which the creditor, whose lien he claims, was not entitled. 8 In respect to void sales in proceedings for partition it is to be observed that if the purchase money has been distributed among those entitled, they and those claiming under them will be estopped from setting up their title against the purchaser until they reimburse him the amount paid by him for the land. 4 The doctrine of subrogation as applied to the relief of purchasers at void execution or probate sales is undoubtedly of comparatively recent origin. As late as the year 1835 a judge declared that he had not been able to find a single case in England or in America in which this relief had been granted to the purchaser, upon a bill expressly filed by him for that purpose, 5 though the courts had been in the habit of refusing relief to the execution defendant, or other person seeking to recover the estate, until he should reimburse the purchaser for the improvements made by him. Afterwards this relief was granted upon bill filed by the purchaser, 6 and from mere reimbursement for improvements, redress to the purchaser has been enlarged to entire restitution of the purchase money. istrator had power to subject property in the hands of the devisee to the pay- ment of the testator's debts. The purchaser was ejected from the property by the devisee. He afterwards filed his bill against the devisee, claiming to be sub- rogated to the benefit of the liens discharged with the purchase money paid by him, which bill was dismissed. The case contains dicta which apparently deny the right of a purchaser at a void private sale to be subrogated to the lien of the probate creditor in any case. 1 Pool v. Ellis, 64 Miss. 555. Bennett v. Coldwell, 8 Baxt. (Tenn.) 483. 2 Sheld. on Subrogation, 209; Bennett v. Coldwell, 8 Baxt. (Tenn.) 483. 3 Duncan v. Gainey, 108 Tnd. 579; 9 N. E. Rep. 470. 4 Gaines v. Kennedy, 53 Miss. 103. Chambers v. Jones, 72 111. 275. Bland v. Bowie, 53 Ala. 152; Goodman v. Winter, 64 Ala. 410; 38 Am. Rep. 13. Fayill Y. Roberts, 50 N. Y. 222. 6 Chancellor WAL WORTH in Putnam v. Ritchie, 6 Paige Ch. (K Y.) 405. Bright v. Boyd, 1 Story C. C. (U. S.) 478. Hatcher v. Briggs, 6 Oreg. 31. 144 MARKETABLE TITLE TO KEAL ESTATE. 66. Subrogation of purchaser where sale is valid. It lias been held that if a debtor have no title to lands sold under execu- tion against him the purchaser may, in equity, recover from him the amount paid for the property, though no fraud in relation to the sale he imputed to the debtor, and this, upon the ground that the purchaser's money has gone to discharge a valid obligation of the execution debtor, and that the former should in equity be substi- tuted to the place of the creditor, and treated as an assignee of his rights in the premises. 1 This doctrine seems a complete administra- tion of justice Ixjtween the parties, placing them substantially in the same position in which they were before the debtor's liability was incurred. But it cannot be reconciled with the rule caveat emptor? and it has also been repudiated upon lees cogent grounds, namely, that the liability of the execution debtor is completely extinguished by the payment of the purchase money, and that the purchaser, wit i respect to such payment, is to be regarded as a mere volunteer. 3 In some of the States, if the execution plaintiff become the pur- chaser of the premises, and it afterwards appears that the execution debtor had no title to the property, the apparent satisfaction of the judgment by the sale will be canceled and the plaintiff allowed to take out a new execution. 4 This practice is equitable and just, and prevails, it is believed, in most of the States. But it is clearly 1 Muir v. Craig, 8 Blackf. (Ind.) 293, following McGhec v. Ellis, 4 Lit*. (Ky.) 244; 14 Am. Dec. 124, a case in which the sale was of a slave to whom the exe- cution debtor 1m- 1 no title, the court saying that the principle applied with the same force to sales of real property as to sales of personalty. Dunn v. Frazier, 8 Blackf. (Ind.) 432; Preston v. Harrison, 9 Ind. 1; Pennington v. Clifton, 10 Ind. 172; Julian v. Beal, 26 Ind. 220; 89 Am. Dec. 460. Roed v. Crosthwaite, 6 Iowa, 219; 71 Am. Dec. 406. Moore v. Allen, 4 Bibb (Ky.). 41, where, however, the purcliaser seems to have been induced to bid by the fraudulent conduct of the execution debtors. White v. Park, 5 J. J. Marsh. (Ky.) 608; Geoghegan v. Ditto. 2 Mete. (Ky.) 483; 74 Am. Dec. 413; McLaughlin v. Daniel, 8 Dana (Ky.), 182. case of personal property. * Vanscoyoc v. Kimler, 77 111. 151; Bishop v. O'Connor, 69 111. 431; Burnett v. Lockard. 60 III. 164. 1 Btohop v. O'Conner. 69 111. 431. 4 Freeman on Executions. {$ 54, 301, 352. Cross v. Zane, 47 Cal. 602. Rittcr v. Henshaw, 7 Iowa, 9H; I,ndd v. Blunt, 4 Mass. 402: Tate v. Anderson, 9 Mass. 92; Oooch v. Atkins. 14 Mam. 878. Magwirc v. Marks. 28 Mo. 193; 75 Am. Dec. 121. Swaggerty v. Smith. 1 Heisk. (Tenn.) 408. Townsend v. Smith. 20 Tex. 465; 70 Am. Dec. 400; Andrews v. Richardson. 21 Tex. 287. Tudor v. Taylor, 26 Vt. 444. Price v. Boyd, 1 Dana (Ky.), 434. This right is also in substance secured to the purchaser by statute in some of the States, whether he was a CAVEAT EMPTOR. 145 inconsistent with the rule caveat eniptor, for there would seem to be nothing in the relations of the execution plaintiff to the parties and subje-ct-matter that would place him upon higher ground than a stranger in respect to the title. There are cases which do not rocognize the distinction, and which hold the purchaser bound in ecial. In England, a vendor who actually purchased the estate himself for money, and did not acquire it by gift, devise or descent, can be required to enter into covenants only against his own acts, or those of persons claiming under him. 1 If he did not acquire the estate for a valuable consideration, his covenants must extend to the acts of the last purchaser. 2 But in no case could he be required to extend his covenants beyond the acts of the last purchaser. In *2 Sugd. Vend. (14th ed.) 232, 234; 3 Powell Conv. 206, 210; Wakeman r. Dutches of Rutland, 3 Ves. Jr. 233; Lloyd v. Griffiths, 3 Atk. 267; Picketl v. Loggon, 14 Ves. 239; Thackeray v. Wood, 6 B. & S. (Q. B.) 773. The following extract from the opinion of Lord ELDOX, in Browning v. Wright, 2 Bos. & Pul. 13, 22, clearly sets forth the English rule as to the extent of covenants that may be required of one selling a fee in his own right. "This transaction is a purchase of an estate of inheritance in fee, and the first question is, what will be the nature and effect of a conveyance carrying such a contract into execution? If a man purchase an estate of inheritance and afterwards sell it, it is to be understood, prima facie, that he sells the estate as he received it, and the purchaser takes the premises granted by him with covenants against his acts. If the vendor has taken by descent, he covenants against his acts and those of his ancestor; and if by devise, it is not unusual for him to covenant against the acts of the devisor as well as his own. In fact he says, I sell this land in the same plight that I received it, and not in any degree made worse by me. It was argued that if this were so, a man who lias only an estate for life might convey an estate in fee, and yet not be liable to the purchaser. This seems at first to involve a degree of injustice, but it all depends on the fact whether the vendor be really putting the purchaser into the same situation in which he stood himself. If he has bought an estate in fee, and at the time of the re-sale has but an estate for life, it must have been reduced to that estate by his own act, and in that case the purchaser will be protected by the vendor's covenants against any act done by himself. But if the defect in his title depend upon the acts of those who had the entate before him, and he honestly but ignorantly proposes to another person to stand in his situation, neither hardship or injustice can be done. What is the common course of business in such a case? An abstract is laid before the purchaser's counsel; and though to a certain extent he relies on the vendor's covenant, still his chief attention is directed to ascertaining what is the estate, and how far it is supported by the title. The purchaser, therefore, not being misled by the vendor, makes up his mind whether hi- shall complete his bargain or not, and if any doubts arise on the title, it rests with the vendor to determine whether he will satisfy those doubts by covenants more or less extensive. Prima facie, therefore, in the conveyance of an estaU* of inheritance we are led to expect no other covenants than those which guard againxt the nets of the vendor and his heirs. 2 Sugd. Vend. (8th Am. ed.) 232. COVENANTS WHICH THE PURCHASER HAS A RIGHT TO DEMAND. 153 America, the rule prevailing in most of the State is that the vendor's covenants must be general or unlimited, 1 and that they must be full, that is consisting of all the usual covenants and not merely a covenant of general warranty. Especially does this rule prevail in the younger States and in sparsely settled communi- ties where accurate and thorough examinations of title are fre- quently dispensed with, and in which, as a necessary consequence, 1 Witter v. Biscoe, 13 Ark. 422; Bagley v. Fletcher, 44 Ark. 153; Rudd v. Savelli, 44 Ark. 145. Steele v. Mitchell, Pr. Dec. (Ky.) 47; Fleming v. Harrison, 2 Bibb (Ky.), 171; 4 Am. Dec. 691; Vanada v. Hopkins, 1 J. J. M. (Ky.) 293; 19 Am. Dec. 92; Andrews v. Ward, 17 B. Mon. (Ky.) 518; Gaithor v. O'Doherty, (Ky.) 12 S. W. Rep. 306. Whiteworth v. Pool, 29 Ky. L. R. 1004; 96 S. W. 880. Clark v. Redman, 1 Bl. (Ind.) 379. Faircloth v. Isler, 75 N. C. 551; Gilchrist v. Buie, 1 Dev. & Bat. Eq. (N. C.) 358; Henry v. Liles, 2 Ired. Eq. (N. C.) 407. Vardeman v. Lawson, 17 Tex. 11; Phillips v. Herndon, 78 Tex. 378. Even though the vendor understood that he was only to make a quit-claim deed, if such understanding was not known to the purchaser. Jones v. Phillips, 59 Tex. 609. Holland v. Holmes, 14 Fla. 390. Dwight v. Cutler, 3 Mich. 566; 64 Am. Dec. 105; Allen v. Hazen, 26 Mich. 143. Herryford v. Turner, 67 Mo. 296, 298. Kenny v. Hoffman, 31 Grat. (Va.) 442; Hoback v. Kilgore, 26 Grat. (Va.) 442; 21 Am. Rep. 317; Dickin- son v. Hoomes, 8 Grat. (Va.) 353, 394; Rucker v. Lowther, 6 Leigh (Va.), 259. Cf. Remington v. Hornby, 4 Munf. (Va.) 140. Tavenner v. Barrett, 21 W. Va. 656, 681. Clark v. Lyons, 25 111. 105. Johnston v. Piper, 4 Minn. 195. Davis v. Henderson, 17 Wis. 110. Tremaine v. Lining, Wright (Ohio), 644; but see Pugh v. Chasseldine, 11 Ohio, 109; 37 Am. Dec. 414. The pur- chaser is entitled to a deed with general warranty whether he buys at auction or private sale. Goddin v. Vaughn, 14 Grat. (Va) 102, 117. An agreement in the contract of sale that the land sold '"shall be in the quiet and peace- able possession of the vendee forever without any let, hindrance, suit, molesta- tion or trouble entitles the purchaser to a conveyance with general warranty. Slack v. Thompson, 4 T. B. Mon. (Ky.) 462. A bond to make '"sufficient title" requires a deed with general warranty. Hedges v. Kerr, 4 B. Mon. (Ky.) 528. An agreement to give a "warranty deed" means a deed with general warranty. Allen v. Hazen, 26 Mich. 142. Johnston v. Piper, 4 Minn. 192 (133). In Allen v. Yeater, 17 W. Va. 128, the vendor con- veyed "with warranty." This was held to mean with general warranty. It was said that the 'deed, being taken most strongly against the grantor, he should have conveyed with "special warranty" if he desired to limit his liability. A bond to "make indefeasible title in fee simple, such as the State requires," demands a deed with covenant of general warranty. Kelly v. Bradford, 3 Bibb (Ky.), 317; 6 Am. Dec. 656. So, also, an agreement to make "as good a deed as can be had" Day v. Burnhan*, 89 Ky. 76; 1 S. W. Rep. 807. An agreement to "make a sufficient title as far as their claim extends on said lands " obliges the vendors to convey with special war- ranty only. Gilchrist v. Buie, 1 D. & B. Eq. (N. Car.) 357. So, also, an aj ment "to furnish a satisfactory abstract of title and give a quit-claim ^de< Fitch v. Willard, 73 111. 92. In Day v. Burnham, 89 Ky. 76; 11 S. W. Rep 807, it was said that the bond of a vendor in general terms to convey land 154 MARKETABLE TITLE TO ItEAL ESTATE. titles are more insecure than in older and more densely populated sections, where few transfers of real property are made, except upon the adviee and assistance of competent persons. 1 In'several of the Atlantic States the generally prevalent rule is that in the absence of express provision to the contrary, the vendor can be required to covenant only against his own acts. 1 And it has been held that if the purchaser enters into a sealed agreement of sale. e. fj., a title bond, without requiring the vendor to insert provisions upon ]>ayment by the vendee of the agreed purchase money is in legal con- templation a covenant that he has or will procure and make a good title to the entire quantity sold and in his deed warrant the title against all claims and that such undertaking is limited only when in plain terms so expressed. In the State of Washington the grantee has by statute the same rights under a quit-claim deed, except as to an after-acquired estate, that he would have under a deed with general warranty. Ankeny v. Clark, (Wash. Ty.) 20 I'ac. Rep. 586. l With respect to the American doctrine as to the covenants which the pur- chaser is entitled to require, Mr. Rawle, in his able and copious treatise on the law (>i Covenants for Titles, observes: " It is difficult to determine by gen- eral and precise rule what, on this side of the Atlantic, arc the " usual covenants" that is to say, the covenants which a vendor should give, and a purchaser expect as, owing to various causes, the practice of conveyanc- ing ilifTcrs widely in the two countries. It is obvious that much of the practic which prevails where the state of society has long been permanent, the tit IP* old, and to a greater or less extent carefully examined at every purchase, lose* its application in a comparatively new country, and the same covenant which might satisfy a purchaser in England or Massachusetts might not satisfy a purchaser in Idaho or Wyoming. As precision of conveyancing increases, a purchaser is less anxious for general covenants than where he bm * in comparative ignorance of the title, and relies upon such covenants for bis protection. Hence, a great difference will be found to exist as to the practice, not only on the different sides of the Atlantic, and among different State*, but even between different parts of the same State.'' Covts. for Title (">th edj, p. 35, referring to Whitehead v. Carr, 6 Watts (Pa.), 309, and Pitcher v. Livingston, 4 Johns, (X. Y.) 14; 4 Am. Dec. 229. These remarks were approved in Ehvight v. Cutler, 3 Mich. 50(5; 64 Am. Dec. 103. 'See Rawle Covts. (5th ed.) 2SO. Kyle v. Kavanaugh, 103 Mass, 356, 3.-. 4 Am. Rep. 560. Mead v. Johnson, 3 Conn. 502; Dodd v. Seymour, 21 Conn. 480. Ketchum v. Evert son, 13 Johns. (X. Y.) 359; 7 Am. Rep. 384; i. !. v v. Pierce, 16 Johns. (X. Y.) 267; Fuller v. Hubbard, 16 Cow. (N. Y.) 13; 10 Am. Dec. 423; Van Eps v. Schenectady, 12 Johns. (X. Y.) 436; 7 Am. Dro. 330; Ryder Y. Jenny, 2 Robt. (X. Y.) 68. Wither* v. Raird, 7 Watts (Pa.), 229; 32 Am. Dec. 754; Espy v. Anderson, 14 Pa. St. 30S, 312; Cadwal- ader v. Tryon. 37 Pa. St. 3 IS, 322; Lloyd v. Farrell, 48 Pa. St. 78; Payne v. Ki-hoK (Pa. St.) 13 All. Rep. 805. In Barlow v. Scott. 24 X. Y. 40, the Kp!lr having represented Hut he held under n warranty deed, and both pnrtiri supposing such to have In^n the case, the purchaser was held entitled in require a conveyance with general warranty. COVENANTS WHICH THE PUKCHASElt HAS A RIGHT TO DEMAND. 155 obliging him to warrant the title generally, it will be presumed that it was the understanding and intention of the parties that ttare was to be no such warranty. 1 Of course, if there be an express contract with reference to the kind of title the purchaser is to receive, the covenants which he may require will depend upon the construction of that contract. 2 An agreement to give a " good and sufficient " title obliges the vendor to execute a warranty deed to the purchaser. 3 An agreement to execute a deed clear of all incumbrances except a certain ground rent, entitled the purchaser to a deed with a covenant against incumbrances, excepting the ground rent. And the purchaser may rely upon such covenant, and is not bound to insist upon the removal of the incumbrance as a condition pre- cedent to his acceptance of the title. 4 If by mistake the pur- chaser accepts a quit-claim instead of a deed with full covenants, to which under the contract he is entitled, the seller may be compelled to execute a deed with such covenants. 5 And a pur- chaser who has been fraudulently induced to accept a quit-claim deed will be entitled to relief. 6 A grantee who reconveys to his grantor upon rescission of the contract, can be required to cove- nant only against the acts of himself and those who claim under him. 7 To such a covenant the original grantor will, of course, be entitled. 8 It has been said that if it appear that both parties knew that the title of the seller was liable to be defeated by the happening of a certain contingency, it will be presumed that the seller engaged to convey with special warranty only. 9 How- ever this may be, no ground for any such presumption can be easily perceived in a case in which both parties were aware that 1 Johnston v. Mendenhall, 9 W. Va. 112. This distinction does not seem to have been recognized in Gaither v. O'Doherty, (Ky.) 12 S. W. Rep. 306, where it was held that if a title bond contain no stipulation as to title, the vendor must convey with warranty. 'Babcock v. Wilson, 17 Me. 372; 35 Am. Dec. 263. "Toomey v. Read, 133 Ga. 855; 67 S. E. 100. 4 Bryant v. Wilson, 71 Md. 440. 5 Point Street Iron Works v. Simmons, 11 R. I. 496. Rhode v. Alley, 27 Tex. 443. See, also, Chastain v. Staley, 23 Ga. 26. 7 Concord Bank v. Gregg, 14 N. H. 331. 8 Shorthill v. Ferguson, 47 Iowa, 284. Dickinson v. Hoomes, 8 Grat. (Va.) 394. 156 MARKETABLE TITLE TO KEAL ESTATE. the title was defective, and the vendor sold at a fair price. 1 The seller often agrees to convey with general warranty in order to quiet the objections of the purchaser to the title. It has been held that if there be a cloud uj)on the title the purchaser cannot be required to accept a quit-claim deed. 2 It is the duty of the vendor to remove the cloud or incumbrance, or to assume the responsibility thereof by executing a deed with general warranty. A jxrson who joins in a conveyance of land merely that an objec- tion to the title may be removed, cannot, of course, be required to covenant generally. 8 Heirs who are directed to perform specifi- cally the contract of their ancestor for the sale of his lands can le required to covenant only against their own acts. 4 In the Knglish practice they are required to covenant also against the acts of the ancestor, 5 and there seems to be no good reason why they should not l>e required so to covenant in America, at least to the extent of assets which they may have received from the ancestor's estate.' At common law it was useless to require covenants from a married woman, since they could not be enforced. In England, however, and in some of the American States, it has been held that she may bind her separate estate in equity by her covenants. In other States it is considered that the power so to bind her wparatc estate doj>ends upon the terms of the instrument creat- ing that estate, but now in England, and in certain of the States, statutory provisions exist expressly or impliedly empowering a married woman to bind her separate estate by her covenants. In other States the power is expressly denied her by statute, except by way of estoppel. 7 Where such power exists no reason is per- ceived why the same covenants as might be required of one 'If the title of the vendor IK questionable, he should covenant generally. Fearnc Po*lh. Work*. 110, 118. Browing v. Wright, 2 Bos. & Pul. 13. 'Potter v. Tuttle, 22 Conn. 513. "Hohaek v. Kilgorr. 26 Orat. (Va.) 442, 445; 21 Am. Rep. 317. Hill v. Reflwgipu, 17 Barb. (X. Y.) 102. Boggess v. Robinson, 5 W. Va. 402. Hyatt v. Secley, 1 Kern. (N. Y.) 56. 2 Sugd. Vend. (8lh Am. id.) 232. Browning v. Wright. 2 Bos. & Pul. 22. Holman v. Criiiwell, 15 Tex. 305. This was denied in Hill v. Keasegicu, 17 Barb (X. Y.) 162, 107. f SM generally an to the power of a married woman to bind her estate by covenant* for title, Rawlc Covts. (5th ed.) ( 306 et wq. COVENANTS WHICH THE PUBCHASER HAS A RIGHT TO DEMAND. 157 under no personal disabilities, should not be required of her; otherwise the grantee of a married woman might be compelled to pay the purchase money after he had been evicted by an adverse claimant, in consequence of the rule that a purchaser holding under a conveyance without covenants for title, is without relief in case he loses the estate. 1 Persons executing mortgages, 2 and, presumably, deeds of trust to secure debts, unless the instrument in either case be a security for the purchase money of the estate, 3 must covenant against the acts of all persons whomsoever. The same covenants may be required of a lessor, 4 the reason being that the title is never examined upon a demise for years. Tenants in common and joint tenants should covenant sev- erally, 5 and the covenants of each should be extended no further than the undivided share of each. 6 The vendor cannot be required to covenant against acts of sovereignty, or against the public rights of the State, such as the riparian rights of the public in a river. The exercise of those rights, though resulting in an eviction, would not operate a breach of the covenant of warranty. 7 It seems that a bankrupt cannot be compelled to 'Post, ch. 27. 2 Sugd. Vend. (14th ed.) 551; Wins. Real Prop. (8th Am. ed.) 447. Cripps v. Eeade, 6 Term, 606 06. In Lockwood v. Sturtevant, 6 Conn. 372, 384, the singular objection was made that covenants of seisin and of good right to convey in a mortgage are invalid. The objection of course was held untenable. See Lloyd v. Quimby, 5 Ohio St. 262, and Butler v. Seward, 10 Allen (Mass.). 466, for instances in which protection to the mortgagee was afforded by covenants for title. 3 Williams Real Prop. (6th Am. ed.) 447, n. 4. 4 Wms. Real. Prop. ( 6th Am. ed. ) 447, n. 1 ; Bart. Conveyancing, 75 ; Rawle Covts. (5th ed.) 26. 5 Coe v. Harahan, 8 Gray (Mass.), 198. Heirs joining in a deed with war- ranty, without restriction as to the interest owned by each, are joint and not several covenantors. Phipps v. Sappenfield, 54 Ind. App. 139, 102 X. E. 841. 6 Rawle Covt. (5th ed.) p. 32, citing 1 Dav. Con. (3d ed.) 114. Armstrong v. Coal Co., 67 W. Va. 589, 69 S. E. 195. A covenant by a joint owner to the extent of his interest binds him only to that extent. Coster v. Mfg. Co., 1 Gr. Ch. (N. J.) 467. 7 See post, 143. Bigler v. Morgan, 77 X. Y. 312. Here the vendor con- tracted to convey by warranty deed to the purchaser a tract of land having oyster beds appurtenant thereto. It was held that all the contract bound the vendor to convey was a clear title to the upland, and such interest in the 158 MARKETABLE TITLE TO KKAL ESTATE. execute a conveyance with covenants, though it is the practice for him to give covenants. 1 (50. FBOM FIDUCIARY GRANTORS. One who sells property in which he has no beneficial interest, for example, a trustee, 2 executor 3 assignee, 4 can be required to enter into no other covenant than that he has done no act to incumber the estate. In the English practice, however, the purchaser has been held entitled to require the usual covenants from ceshiis cjue tru^t? and the land covered by the water as the law of the State gave to the owner of the upland; that the riparian rights were subject to the public rights of the State, and that the vendor could not be required to warrant against them, or against parties claiming privileges granted by the State. ^ugd. Vend. (14th ed.) 575. Waugh v. Land, Coop. 132. Ex parte Crowder, 2 Rose, 327. 'Dart V. & P. (5th ed.) 130; Sugd. Vend. (14th ed.) 574 (234); Lewin Trustees (1st Am. ed.), 441; Rawle Covts. (5th ed.) 33. Faircloth v. Isler, 75 N. Car. 551; Ennis v. Leach, 1 Ired. Eq. (N. C.) 416. Barnard v. Duncan, 38 Mo. 170, 181; 90 Amr. Dec, 416. Fleming v. Holt, 12 W. Va. 143, 162; Tavenner v. Barrett, 21 W. Va. 656. If he agree to convey with warranty, the agreement is void and cannot be enforced. Bnackenridge v. Dawson, 7 Ind. 383, 387. He may be required to insert a covenant against fiis own acts. Dwinel v. Veazie, 36 Me. 509; 69 Am. Dec, 84. A fiduciary vendor cannot be compelled to covenant for further assurance. Bart. Conv. 70. Worley v. Frampton, 5 Hare, 560. In Page v. Brown, 3 Beav. 36, it was held that executor ial trustees, seeking specific performance of a contract made by their testator, must enter into such covenants as the testator would have been obliged to g've. J Sumner v. William*, 8 Mass. 162, 201; 5 Am. Dec. 83, the court saying: "An administrator, acting under a license and exercising an authority to sell the real estate of his intestate, is not required by any duty of his office or truj*t to enter into a personal covenant for the absolute perfection of the title which he undertakes to convey, or for the validity of the conveyance beyond his own acts." Hodges v. Saunders, 17 Pick. (Mans.) 476. Shontz v. Brown, 27 Pa. St. 123. Grantland v. Wight, 5 Munf. (Va.) 205; Goddin v. Vaughan, 14 Grat. (Va.) 102. Covenants of title implied from the words "grant, bargain and sell," in a conveyance by administrators, impose no personal liability on them. Shontz v. Brown, 27 Pa. St. 123, 134. Xor those implied from the words " grant and demise " in a lease. Wclwter v. Conley, 46 111. 14; 92 Am. Dec. 234. And, generally, covenants for title will not be implied a against an executor. Dow v. Lewis, 4 Gnay (Mass.) 468, 473. Nemblr, that if a committee of a lunatic, having no power at common law or by statute to make a leaw of the lunatic's fend*, execute such a lease, the usual lewor'a covenant* will be implied from the word fcmi*e, and the committee be held personally liable on the covenant. Knipe v. Palmer, 2 Wilson, 130. 4 White v. Foljaml*. 11 Ve*. 337, 345. See, ante, $ 64. Sugd. Vend. (14th ed.) 574, 575; Rawle Covt. (6th ed.) $ 34. London Bridge Act*, 13 Simons, 176; Poulet v. Hood, L. R., 5 Eq. 115. But see COVENANTS WHICH THE PURCHASER HAS A BIGHT TO DEMAND. 159 same rule has in a few instances been enforced in America. 1 The usual covenants may be required from an agent in behalf of his principal, 2 unless the power under "which the agent sells and conveys expressly requires a conveyance without covenants. 3 A vendor having an interest, as well as a power, may be compelled to covenant personally to the extent of his interest. 4 But while Wakeman v. Duchess of Rutland, 3 Ves. 233 ; Cottrell v. Cotrell, L. R., 2 Eq. 330. Mr. Rawle says that the correct test of the application of the rule requiring cestuis que trust to give covenants would be the extent of the pur- chaser's liability to see to the application of the purchase money. This means, it is presumed, that the purchaser could not require covenants from the cestuis que trust unless he was obliged to see that the purchase money was applied to the purposes of the trust, and thus to become in a certain sense liable for the acts of the cestuis que trust and of the trustee in making the sale. Rawle Cov. (5th ed.) p. 46, n. This is doubtless true in all juris- dictions in which the purchaser upon a sale by him could be compelled to give no more than limited or special covenants. But it is not clearly perceived how any such rule can obtain in those courts in which upon such sale he would, in the absence of any special agreement, be required to con- vey with general or unlimited covenants. 1 Rawle Covts. (5th ed.) 34, citing Crabtree v. Levings, 53 111. 526, which, however, appears to have decided no more than that a purchaser of land from one who has not the legal title is entitled not only to covenants from him in whom is the title, but also from the person from whom he bought. In Barnard v. Duncan, 38 Mo. 181; 90 Am. Dec. 416, the English rule upon this point was said not to have been recognized in this country. 2 Le Roy v. Beard, 8 How. (U. S.) 451; Taggart v. Stanbury, 2 McL. (U. S.) 543. Vanada v. Hopkins, 1 J. J. Marsh. (Ky.) 293; 19 Am. Dec. 92; Hedges v. Kerr, 4 Brown (Ky.), 524, 528. Bronson v. Coffin, US Mass. 156; 11 Am. Rep. 335. Hunter v. Jameson, 6 Ired. (N. C.) 252, case of ptr- sonal property. Peters v. Farnsworth, 15 Vt. 155; 11 Am. Dec. 671. An agent authorized to convey lands of the commonwealth by quit-claim deed does not exceed his authority by warranting the land against all persons claiming under the commonwealth. Ward v. Bartholomew, 118 Mass. 161. A power of attorney which authorizes an agent to convey as fully and amply as the principal could, authorizes the agent to convey with covenants of general warranty. Taggart v. Stanbury, 2 McLean (U. S.) 543. There are several cases in which it has been held that one acting under a power has no author- ity to bind his principal with covenants for title. Nixon v. Hyserott, 5 Johns. (N. Y.) 58; Gibson v. Colt, 7 Johns. (N. Y.) 390; Van Eps. v. Schenectady, 12 Johns. (N. Y.) 436, 443; 7 Am. Dec, 330. Howe v. Harring- ton, 3 C. E. Gr. (N. J. Eq.) 496. Mead v. Johnson, 3 Conn. 592; Dodd v. Seymour, 21 Conn. 480. These decisions appear, however, to have been largely influenced by the New York and New England rule, that an agreement to make good title, or a sufficient deed, does not entitle the purchaser to covenants of warranty. 3 Bart. Conv. 73. Hare v. Surges, 4 Kay & Johns. 57. "Rucker v. Lowther, 6 Leigh (Va.), 259. 160 MAKKETABLE TITLE TO REAL ESTATE. a fiduciary grantor cannot be 1-04 ui red to convey with the usual covenants, if he should, nevertheless, execute such a conveyance, he will be ]x?rsoi>ally bound by the covenants, 1 even though speci- fied to l>e *' in his capacity as administrator," 2 the reasons being that, if he chooses to enhance the value of the purchaser's bargain by undertaking to assure the title, thereby possibly benefiting himself in an enlargement of the proceeds of the sale, he must 'Rill on Trustees (3d Am. cd.), 413; Rawle Covts. (5th ed.) 36. Execu- tors and administrators: Mitt-hell v. Hazen, 4 Conn. 495; 10 Am. Dec. 160: Bcldcn v. Seymour, 8 Conn. 24; 21 Am. Dec. 661. Aven v. Beckom, 11 Ga. 1. Baxter v. Camp, 126 Ga. 354; 54 S. E. 1036. Simmer v. Williams, 8 Mass. 162; 5 Am. Dec, 83, the leading case. Mellen v. Boariroin, 13 Sm. & M. (Miss.) 100. Codify v. Taylor, 3 Dev. (X. C.) 178. Lockwood v. Gilson, 12 Ohio, 529. Kauffelt v. Leber, 9 Watts & S. (Pa.) 93. Mabie v. Matteson, 17 Wis. 11, diet. Barnett v. Hughey, (Ark.) 15 S. W. Rep. 464. In Sumner v. Williams, 8 Mass. 201 ; 5 Am. Dec. 83, the court aid that an administrator or executor may covenant generally, " if he chooses thus to excite the con- fidence of purchasers and to enlarge the proceeds of the sale," and will, there- fore, be personally bound. Such a contract is neither unlawful nor incon- sistent. In Merritt v. Hunt, 4 Ired. Eq. (N. C.) 409, will be found an instance where an executor making an auction sale of lands offered to warrant the title himself in order to quiet the fears of intending purchasers as to the title. But a covenant by an executor in his " capacity as executor and not otherwise " has been held not to bind the executor personally. Thayer v. Wendell, 1 Gall. (C. C.) 37. So, also, a covenant by executors that they would warrant and defend " as executors are bound by law to do," they not being bound hy the lex rei sit4; 17 S. W. Rep. 981. Higley v. Smith. 1 D. Chip. (Vt.) 409: 12 Am. Dec. 701. COVENANTS WHICH THE PURCHASER HAS A RIGHT TO DEMAND. 161 take the consequences of his contract; and, further, that, if he were not liable, the grantee would have no remedy upon the cove- nants. 1 It is immaterial, with respect to the liability of the grantor, whether the deed is signed by him in his individual or in his fiduciary capacity. 2 The rule that general covenants for title cannot be required from fiduciaries and others who convey en outer droit is equi- table and just, so far as it is intended to protect such a grantor from personal liability on the covenants. At the same time it is obvious that the rule may result in much hardship to the buyer ; for, as will hereafter be seen, he may be compelled to pay the purchase money, though he has been evicted from the estate, if the eviction be under a title to which his grantor's covenants do not extend. 3 It has been held that if it plainly appear from the face of the instrument that the fiduciary did not intend to bind himself personally by the covenants, he will not be bound; in such* a case the plainly expressed intention of the parties controls. 4 Covenants entered into by a fiduciary cannot bind the trust estate or the cestuis que trust, except, of course, in cases where he is expressly authorized to enter into covenants. 5 A power to a trus- tee to sell real estate upon such terms as he may deem.' expedient gives him no authority to bind the estate by covenants. 6 And a statute giving an administrator power to convey land, gives him, 1 Donohue v. Emery, 9 Met. (Mass.) 66. See, also, Story on- Agency, 263; Appleton v. Banks, 5 East. 148; Knipe v. Palmer, 2 Wilson, 130; Burrill v. Jones, 3 B. & Ad. 47 ; Norton v. Herron, 1 C. & P. 648. If the covenants of an agent are sufficient to bind the principal, the agent will not be bound. Kent v. Chalfant, 7 Minn. 491. 2 Belden v. Seymour, 8 Conn. 24; 21 Am. Dec. 661. 3 Post, ch. 27. In Texas this injustice may be prevented, so far as deeds of trust to secure debts are concerned, by a rule which permits the trustee to bind the creator of the trust with covenants for title. Thurmond v. Brown- son, 69 Tex. 597; 6 S. W. Rep. 778. 4 Glenn v. Allison, 58 Md. 527. 5 0sborne v. McMillan, 5 Jones L. (1ST. C.) 109. Klopp v. Moore, 6 Kans. 27, 30. Kauffelt v. Leber, 9 Watts & S. (Pa.) 93. Lockwood v. Gilson, 12 Ohio St. 529, diet. A bond given by an administrator to convey land of his intestate by warranty deed is unauthorized and will not bind the estate. Mason v. Ham, 36 Me. 573. The same rule applies in sales of personal prop- erty. Worthy v. Johnson, 8 Ga. 236; 52 Am. Dec. 399. Welch v. Davis, 3 So. Car. 110; 16 Am. Rep. 630. 162 MARKETABLE TITLE TO REAL ESTATE. by implication, no power to bind the estate by covenants for title. 1 A fiduciary, conveying with general covenants for title, will not only be personally bound thereby, but he will be estopped to set up afterwards any interest in the premises which he may have had at the time of the conveyance. 1 70. MINISTERIAL GRANTORS. Xo covenants of any kind can be required from mere ministerial grantors, such as sheriffs, tax collectors and others who are made by law the mere nwdia for the transfer of legal title.* Nor can any covenant be implied from the language of the conveyances which they execute. 4 If, however, they choose to insert covenants for title, they will be bound by them. Thus it has been held that municipal officers having no authority to bind the municipality will be personally bound by covenants for title inserted in a conveyance by them- selves in their official capacity. 5 A tax collector who executes a tax deed with covenants in the form prescribed by statute cannot be held personally liable on those covenants.' Covenants for title cannot be required from the crown, nor from the commonwealth, nor the federal government. 7 But it has been held that if the commonwealth convey with covenants of warranty, she will be estopped from afterwards setting iip a claim to the property. 8 'Osborne v. McMillan, 5 Jones L. (X. Car.) 109. Foster v. Young, 35 Iowa, 27. Heard v. Hall, 16 Mass. 458. See post, " Estoppel," ch. 21. Friedly v. Scheetz, 9 S. & R. (Pa.) 156; 11 Am. Dec. 691. Mitchell v. Pinckney, 13 So. Car. 203. The reason is that the rule caveat emptor strictly applies in all sales by persons acting in a ministerial capacity. See anti. " Caveat Kmptor," ch. 5. 4 Dow v. Lewis, 4 Gray ( Mass. ) , 468. Sterling v. Peet, 14 Conn. 245. Wilson- v. Cochran, 14 N. H. 397. Gibson v. Mussey, 11 Vt. 212. T 2 Sugd. Vend. ch. 14 | 111; Rawle Govts. (5th ed.) ft 3. State v. Crutchfield, 3 Head (Tenn.), 113. Oomm-'th v. Andre, 3 Pick. (Mam.) 224; Comm'th v. Pejepscut, 10 Mass. 155. CHAPTER VII. ABSTRACT OF TITLE. IN GENERAL. 71. BOOT OF TITLE. 72. DUTY TO FURNISH ABSTRACT. 73. PROPERTY IN THE ABSTRACT. 74. TIME IN WHICH TO EXAMINE THE TITLE AND VERIFY THE ABSTBACT. 75. SUMMARY OF THE VARIOUS SOURCES OF OBJECTIONS TO TITLE. 76. Objections which appear from the instruments under which title is claimed. 77. Objections which appear from the public records. 78. Objections which appear upon inquiries in pais. 7&. 71. IN GENERAL. In the English practice an abstract of title appears to be an epitome of the various documents 1 in the possession of the vendor which evidence his title, such as deeds, wills, and affidavits respecting births, marriages, deaths, pedi- grees, and other matters materially affecting the title. 1 The unwillingness of the vendor to allow the muniments of his title to go out of his possession probably gave rise to the custom of making abstracts of their contents for the leisurely inspection of the purchaser. In America an abstract has been defined to be " a statement in substance of what appears on the public records affecting the title." This definition is perhaps sufficiently exact for practical purposes, but it should be remembered that there may be facts of vital importance to the title which nowhere appear of record, such as the proofs necessary to establish title by descent, or title by adverse possession. The abstract should, of course show the ability of the vendor to establish all such facts by competent evidence. It is customary in some localities to take *2 Sugd. Vend. (8th ed.) ch. 111. Hollineld v. Landrum, (Tex. Civ. App), 71 S. W. 979, citing the text. 2 Union Safe Dep. Co. v. Chisholm, 33 111. App. 647, citing Warvelle Abst. 3. A better definition is said, in Sparkman v. Davenport, (Tex. Civ. App.) 163 S. W. 410, to be that given in Hollifield v. Landrum, supra, namely, " the substance of what appears in the public records affecting the title, and also a statement in substance of such facts as do not appear upon the records which are necessary to perfect the title." So, also, Wright v. Bott, (Tex. Civ. App.) 163 S. W. 301. [163] ](>4 MAKKF.TABLK TITLK TO HEAL ESTATE. the affidavits of persons cognizant of such facts, and cause them to be recorded among the land records of the county where the land lies. These affidavits, however, are merely persuasive to the purchaser, and are inadmissible as evidence in any proceeding in which the validity of the title is attacked. 1 In the American practice the abstract shows not only all conveyances affecting the title back to its root, 2 but all liens or incumbrances of record which may affect the estate or interest which the purchaser is to acquire, and in the case of titles derived from the judgments or decrees of courts in judicial proceeding, or from the ministerial acts of officers of the government, the existence of all facts without wh4ch the proceedings or acts in question would be not voidable merely, but absolutely void. In fine, the abstract is the outcome of a careful and accurate examination of the title, and should show all that such an examination 1 of the title would disclose. It should also show the essential parts of every instrument in the vendor's chain of title, such &s the names of the parties, descrip- tion of the property conveyed or devised, words of grant or devise, and the like. The manner in- which an abstract is prepared is an inquiry not within the scope of this work. Practical sugges- tions and forms will be found in several valuable treatises ujxm the subject.* According to the English practice, the vendor's '2 Sugd. Vend. (8th ed.) 15 (417). * A c-ertificate attached to a paper stating that it is a " full and true abstract of the title," covers suits affecting the title as well as conveyances or incumbranees. Thomas v. Schee, 80 Iowa, 237; 45 N. W. Rep. 539. 'American: Warvelle on Abstracts, 1892; Martindale on Abstracts, 1890. Knglith : Preston on Abstracts; 2 Sugd. Vend. ch. 11. A case of want of reasonable care, skill and diligence in preparing an abstract may be seen in Thomas v. Schee, (Iowa) 45 X. W. Rep. 539. Where the contract requires a good title, free and clear of all incumbrances as shown by abstracts, the abstract must contain a full summary of all grants, conveyances, wills, records, and judicial proceedings whereby the title is in any way affected, and all incumbrances and liens of record, and whether they have been released or not. . . . But it is not implied that the abstract shall show matters not of record, nor all the facts and circumstances connected with the conveyance* which might affect the title, such, for example, ax possession, or who were the legal heirs of a deceased owner where administration was not had within the jurindiction, and matters of thnt kind. The abstract may be supplemented with evidence of facts and circumstances explanatory of the record and showing good title free of incumbrances in the vendor. Atte- berry v. Blair. 244 111. 363, 91 X. K. 475, 135 Am. St. Rep. 342. The abstract ABSTRACT OF TITLE. 165 solicitor prepares the abstract from the muniments of title in his possession ; and he is held criminally responsible if he knowingly suppresses an instrument which would show a defect in the title. It is the duty of the purchaser's solicitor to compare the abstract with the originals, and if, by negligence, he fails to detect a material discrepancy in the abstract, he will be responsible to the purchaser for any loss that may ensue. " This examination," says Lord ST. LEONARDS, " should never be left to an incompetent person. In the case of wills, particularly, the solicitor is bound to read through the whole will. Upon him devolves the duty of seeing that the evidence is what it purports to be, and that the deeds and wills are duly attested, and the receipts on all deeds properly indorsed and signed. An estate has been- lost principally from the manner in which the receipt was indorsed, which would have led a vigilant purchaser to inquire further, when he would have discovered the fraud which had been committed." An original abstract of title showing unsatisfied liens of record may be received in evidence in the action by the purchaser for breach of contract in failing to make title. 2 The abstract does not show a marketable title unless it is brought down to date 2a ; and its sufficiency is to be determined as of the time fixed by the parties for the performance of the contract.* 72. BOOT OF TITLE. Title to real property is in most cases evidenced by written instruments, such as deeds and wills, but it is possible that the title may be complete though altogether unsup- ported by documentary evidence, as in the case of descent from sole heir to sole heir during a period of sixty years or more. And, should show whether grantors in the claim of title were married or single. Bragg v. Chilcote, 176 111. App. 371. Where the contract requires that the abstract shall show title in the vendor to date, and the abstract furnished shows title in a -stranger, the objection is not cured by a subsequent con- veyance to the vendor, since liens upon the property may have attached in the meanwhile that would not be shown by the abstract. Drury v. Mickle- berry, 144 Mo. App. 212, 129 S. W. 237; Union Safe Dep. Co. v. Chrishelm, 36 111. App. 647. J 2 Sugcl. Vend. (8th Am. ed.) 8 (411). 3 Fagan v. Davison, 2 Duer (N. Y.), 153. "aGant v . Dunlap, (Tex. Civ. App.) 188 S. W. 1020. 2 b Denny v. Cox, 206 111. App. 512. 1GG MAKKETABLE TITLE TO KEAL ESTATE. again, there may be titles which, with respect to the documents or records upon which they rest, are apparently perfect, yet by reason of some matter or tiling not disclosed by these evidences of title are in reality worthless, as where some one of the deeds in the chain of title is a forgery, or some event has transpired by which the estate of the present occupant has determined; e. g., the death of a reslui (jue vie, when the estate which the vendor pro- poses to sell is held for the life of another only. The rule caveat eniftlor requires the purchaser to inquire into all these matters, and examine all of the vendor's evidences of title, whether they are preserved in the shape of documents and public records or consist simply of facts to be ascertained by inquiries in pais. This examination he must carry back until he arrives at what is commonly called the " root of title." The root of title is title existing in some one, through whom the vendor claims, at a time in the past sufficiently remote to bur, by force of the Statute of Limitations or by the lapse of time, all adverse claims to the premises theretofore accruing, or which may accrue after tire removal of personal disabilities of possible adverse claimants. The general rule is that the purchaser may require the vendor to show a title free from defects and incumbrances for a length of time that would bar any adverse claim existing at the beginning of that period, including all sav- ings in favor of persons under disabilities. 1 This jwriod was, in Knglaml, fixed at sixty years until within a comparatively recent date, when it was changed by statute to forty years. 2 In the older American States the English practice of showing title for sixty years back has been very generally followed. The statu- tory periods of limitation are, as a general rule in those States, too short to afford absolute protection to a purchaser. In every case in which there is reasonable ground to believe that there are adverse interests against which the usual period to which the title is carried back would not prove a bar, the purchaser may require that a title be shown lieyond that |>criod ; for example, in 1 William* Rral Prop. 450; 1 Su^cl. Vend. (8th eetent person. 74. PROPERTY IN THE ABSTRACT. The purchaser has a trm|>orary right of property in the abstract while the sale is being negotiated, and the absolute ownership if the sale be consum- mated.' As between mortgagor and mortgagee, it has been held that an abstract furnished by the mortgagor to asvsist the mort- 'Kvann v. Orchard Co.. 103 Ark. 212, 146 S. W. 511. 'Boa* v. Harrington, 85 Cal. 536; 24 Par. Rep. 787. McAlpine v. Reicheneker, 56 Kan. 100; 42 Par. 339. Cute* v. Parmly, 93 Win. 294; 66 N. W. 253; 67 N. VV. 739. 1 \Varvelle Abstract*, ch. 1, f 7. Proof by a vendor that he furnifthed an alwtract made by the recorder of deeds, together with the testimony of a number of real entate delern that abstract* furnished by mich recorder were merchantable, establishes, jtrima facir, the delivery of n "merchantable" abntrmt. Harper v. Tidholm, 155 111. 370; 40 X. E. Rep. 575. CoppiiiKcr on Title Deed*, Lond. 1875; Mart. Ahnt. II. Thin h the l.nj/h-li rule, and there seem* to be nit reason why it should not apply in thin country. KotK-rt* v. Wyatt, 2 Taunt. 288; Langlow v. Cox, 1 Chit. 98. 2 Sugd. Vend. 428, 429; Warvclle Abst. 11. Chapman v. Lee, 55 Ala. 616. ABSTBACT OF TITLE. 171 gagee in examining the title became a part of the security for the loan, and might be retained by the mortgagee until the mortgage was discharged. 1 a 75 TIME IN WHICH TO EXAMINE THE TITLE AND VERIFY THE ABSTRACT. The contract of sale usually specifies a time in which the purchaser may examine the title before completing the purchase. If no time be specified, he will be entitled to a reason- able time for that purpose, but cannot keep the contract open in- definitely so as to avail himself of a rise in the value of the prop- erty or escape loss in case of depreciation. 2 He cannot be required to pay the purchase money before he has examined the abstract, unless he has expressly stipulated so to do. 3 It has been held that if the contract provide that the purchaser shall be furnished an abstract of title, and shall have a specified time in which to ex- amine the title and pay the purchase money, the purchaser must determine in that time whether he will take the title, and that he cannot tender the purchase money after that time, even though no abstract of the title was furnished. 4 The purchaser is entitled to a reasonable time within which to determine by investigation the validity of apparent liens disclosed by the record. 5 After the purchaser has examined the abstract or 1 Holm v. Wust, 11 Abb. Pr. (N. S.) (N. Y.) 1113. In Williams v. Daly, 33 111. App. 454, it seems to have been held that an abstract made by taking a copy in writing from a former abstract made by another office, taking a letter-press copy from that copy and, from the letter-press copy, copying again, was not such an abstract as the purchaser was entitled to require. As to the validity of copies of abstracts generally, see the observations of Mr. Warvelle in his work on Vendors, vol. 1, p. 295. "Hoyt v. Tuxbury, 70 111. 331. 3 Penna Min. Co. v. Thomas, 204 Pa. 225; 54 Atl. 101. 4 Kelsey v. Crowther, (Utah) 27 Pac. Rep. 695. 5 Allen v. Atkinson, 21 Mich. 361, COOLEY, J., saying that when the pur- chaser showed an apparent incumbrance of record, the most that the vendor could insist upon " is that he shall satisfy himself within a reasonable time whether the apparent incumbrance is a valid one or not. It would be out of all reason to insist that the vendee, at his peril, should take a title appar- ently Encumbered, and that the vendor should have a right to demand the immediate performance of the contract by the vendee, when apparently his own deed would be insufficient to give the complete title he had agreed to convey. Xor do I think thirty days was an unreasonable time to take for this purpose when the mortgagee resided at a distance, and when it does not appear that the situation of the parties had in the meantime been changed, or that anything had occurred to render the contract less fair and equal than it was when entered into. 172 MARKETABLE TITLE TO KEAL ESTATE. investigated the title in the time allowed for 7fl. ABSTRACT OF TITLE. 175 it has been said by a great judge that there is no such thing as a mathematical certainty of a good title. 1 But the state of every title is capable of being ascertained or established with a reason- able degree of certainty. The policy of the law is that as far as possible title to lands, to the extent that it depends upon the fact of alienation or transfer from one person to another, shall be evidenced by written instruments of a solemn kind, such as deeds, wills, judgments or decrees. Also, that these instruments shall be made matters of public record open to the inspection of the whole world; and that certain of them, that is, deeds, shall be void for certain purposes if not entered, or not lawfully entered, upon the public record. Also, that certain matters collateral to the title, such as liens, charge or incumbrances upon the estate, shall likewise be entered of record, so as to bind subsequent purchasers for value and without -actual notice of their existence. Hence, it follows that the sufficiency of the title is, in a great measure, to be determined by an inspection of the public records, and of instruments which evidence the vendor's title. Indeed, the great majority of objections to title that are commonly made spring from these sources, such, for example, as that the vendor has no documentary evidence of his title, or that some one of the deeds under which he holds is defective on its face ; or that his deed has not been admitted, or has been improperly admitted, to record; or that the record discloses liens and incumbrances upon the estate. But it is obvious that there may be fatal defects of title which neither appear from the public records nor upon the face of any instrument under which title is claimed. Thus, a deed exe- cuted by a married woman is in most jurisdictions void unless her husband joins as a party, but the fact that a grantor in a deed in the vendor's chain of title was a married woman would not ordinarily appear except upon inquiries made among those likely to know the fact. So it is possible for a title to be good though evidenced altogether by matter in p&is, such, for example, as a title by inheritance or by adverse possession for a great number of years. 2 Where the defect of title appears upon the face of the instrument under which title is claimed, or from the public 1 Lord HARDWICKE in Lyddall v. Western, 2 Atk. 20. a Jaeger v. Harr, 62 Oreg. 16, 123 Pac. 61. 176 MARKETABLE TITLE TO REAL ESTATE. records, the rules which protect a purchaser for value have no application, for two obvious reasons; first, because in such a case the purchaser is charged with notice of the defect; and, secondly, because those rules afford protection only against latent equities, which may result in a destruction of the title and not against an absolute want of title, such as results from an instru- ment on its face insufficient to pass the title; for example, a tax deed void on its face for want of compliance with certain statutory requisites as to its contents. 1 But while it is impracticable in this work to enter upon a consideration of the laws respecting real property in all the phases in which they may be material to the question of want of title in a vendor, it is believed that a categorical summary of the principal sources of objections to title, having reference to those laws will be found useful as an aid to the memory in the 1 examination* of a title. An attempt has been made to present such a summary here, under the following heads: (1) Defects and Objections to Title which apj>ear upon the Face of some instrument under which Title is claimed. (2) Defects and Objections to Title which appear from the Public Records. (3) Defects and Objections to Title arising from matters in pais or those which appear upon Inquiry dekors the Public Records, and apart from any Instru- ment under which Title is claimed. This summary, while neces- sarily general in its character, embraces, it is believed, references to all of the principal and most important sources of objections to title. (I) 77. DEFECTS AND OBJECTIONS WHICH APPEAR UPON THE FACE OF SOME INSTRUMENT UNDER WHICH TITLE IS CLAIMED. DEEDS. Practically there are but two vehicles or instruments for the transfer of title to lands inter paartes, namely: (1) Deeds, including letters patent or public grants; and (2) Wills. As to deeds, it is obvious that these, in several respects, may apj>car upon their faces insufficient to transfer title. As a general rule, in the American States, deeds are entered at large upon the public records, and in the examination of titles many content themselves with a perusal of the record or office copy of the deed; but this is never a safe course, as there may bo an imperfection in the 'CogH v. Ralph, 24 Minn. 194. See pmt. thin chaptor. ft 70. ABSTRACT OF TITLE. 177 deed which can only appear by an inspection of the original, for example, a fraudulent erasure, interlineation, or other alteration therein. The sufficiency of a title should never be passed upon by counsel until he has carefully perused every instrument lying in the vendor's chain of title, and until he is satisfied that every such instrument has been laid before him or has been seen by him. The most disastrous consequences have resulted, and are in many cases likely to result, from neglect of this seemingly unnecessary caution. The principal defects which will appear upon the face of an original deed are as follows: Insufficient Signing. See ante, 32; 3 Washb. Real Prop. 270. Insufficient Sealing. See ante, 32, and authorities there cited. Insufficient Execution. This may occur in the case of a conveyance by a corporation, as, where the instrument runs in the name of the officers of the corporation, and not in the name of the corporation itself; or when the formalities, if any, required by the corporate charter, or special legislation, have not been observed. So, also, where a deed executed in pursuance of a power, omits any of the formalities prescribed by the power. Insufficient Words of Conveyance. See ante, 19. Insufficient Description df the Premises. This, as may be seen, may be so vague and indefinite as to render the instrument not only ineffectual as notice to subsequent purchasers, but void as between the parties. Ante, 20. Wait v. Smith, 92 111. 385. 1 Greenl. Ev. 301. Me&ick v. Sunderland, 6 Cal. 298. Illegal Subject-matter and Consideration. Such, for example, as a deed of assignment which makes an unlawful preference among creditors; or a deed which imposes an unlawful restraint upon alienation ; or a conveyance for any illegal purpose. Incompetency of Parties. This may sometimes appear upon the face of a conveyance, with respect either to the grantor or the grantee. Thus, a conveyance by a com- missioner of court which shows that the commissioner was appointed by a court in a State other than in which the premises lay, shows on ita face the incompetency of the grantor. So, also, a conveyance by an executor who does not profess to act under a testamentary power. Contee v. Lyons, 19 D. C. 207. Brush v. Ware, 15 Pet. (U. S.) 93. Dowdy v. McArthur, 94 Ga. 577; 21 S. E. Rep. 148. 178 MARKETABLE TITLE TO REAL ESTATE. An example of incotnpetency of the grantee occurs where the con- veyance is to a corporation not authorized by law to hold real estate; or where a trustee or fiduciary becomes a purchaser of the trust estate. Painter v. Henderson, 7 Pa. St. 48. Diminutions in the Quantity of the Estate Intended to be Purchased. This head has reference to that part of a deed which determines the nature and extent of estate conveyed. The great bulk of conveyances in this country consists merely of transfers of the fee from one person to another. Limitations or conditions by which the estate is liable to be defeated, do not so frequently occur with us as in England, where deeds are perhaps more employed than wills in family settlements. Still, the purchaser must carefully examine each deed that lies in the vendor's chain of title, in order to see, among other things, that each transfers as large an interest as the vendor has undertaken to sell, and that the estate conveyed is not liable to be defeated or diminished by any event that may transpire in the future. In the large cities, it is common to find in deeds, conditions that no noxious trade shall be conducted on the premises, or that no buildings of a certain kind shall be erected thereon. Conveyances of land for religious purposes are frequently made upon condition that the premises shall be exclusively used for that purpose. So. in other cases of gift, for example, a conveyance of a court house site, to revert to the donor and his heirs when no longer used for that purpose. Covenant.* Running with the Land. In many instances, covenants are inserted in deeds binding the grantee to do certain collateral things, for example, to keep a mill dam and race- way in repair, to maintain division fences and the like. These, as a general rule, run with the land and bind a subsequent purchaser. So, also, covenants not to use the premises for specified purposes. They diminish the value of the premises and constitute grounds upon which the purchaser may reject the title. Post, $ 305. Constructive Notice from Recitals. A purchaser is not only charged with notice of every deed which lies in the chain of his vendor's title, but if any of those deeds contain recitals which would put a man of ordinary prudence upon inquiry respecting the rights of third parties in the premises, he will be charged with notice of those rights, provided they might have been discover^! by the exercise of reasonable diligence. Thus, where a deed is execute.! in pursuance of a power of attorney, a subsequent purchaser is rhargcil with notice of any defect in the power. Morris v. Terrel, 2 Rand. (Va.) 6. And except in those States where a vendor's lien must be expre--]\ reserved by the grantor on the face of his deed, a recital in the deed showing that the purchase money is unpaid puts a subsequent purcha-rr upon inquiry, and he must ascertain at his peril whether the pun ]ia-<- money has been paid since the execution of the deed. Woodward v. Woodward, 7 B. Mon. (Ky. ) 116. Numerous cases illustrating the ABSTRACT OF TITLE. 179 doctrine of constructive notice from recitals in deeds under which the purchaser claims may be found in the reports. They show the necessity of a careful perusal of every deed in the vendor's chain of title. Insufficient Authentication for Record. This is one of the most important points to which /the attention of the purchaser must be directed. Authentication of a deed for the purposes of registry consists either in the attestation of the deed by subscribing witnesses, or in the acknowledgment thereof before certain officers in the manner provided by law. We have seen that, in some of the States, the acknowledgment of the deed, or the attestation of subscribing witnesses, is not only necessary to authenticate the same for registry, but to make the deed valid as between the parties. Ante, 23, et seq., where, also, the several requisites of a valid certificate of acknowledg- ment are considered. Reservation of Liens or Charges upon the Estate Conveyed. Liens for purchase money, annuities, charges for support and mainte- nance of the grantor, and the like, are frequently reserved on the faces of conveyances; and all deeds in the chaim ol title should be carefully examined, with this fact in mind. Duty to See to the Application of the Purchase Money. In certain cases of defined and limited trusts, the purchaser of the trust subject is required to see that the purchase money is applied to the purposes of the trust; otherwise the trust will attach to the premises in his hands. This must be borne in mind in the purchase of a trust estate. 2 Sugd. Vend. (8th Am. ed.) ch. 18; 2 Washb. Real Prop. (4th ed.) 528 (211). Cancellations, Obliterations, Erasures., Interlineations and Alterations. These, or any one of them, may be of a kind and character sufficient to destroy the validity of the deed. Their existence, of course, can only be known by an inspection of the original deed. Fraud Apparent on the Face of a Deed. As a general rule, fraud seldom appears on the face of a conveyance, so as to charge a subsequent purchaser with notice. It sometimes happens, however, that the provisions of deeds purporting to be trusts for the benefit of particular parties are framed so palpably in the inter- est of the grantor that the courts do not hesitate to pronounce them void, as having been executed for the purpose of delaying creditors. An - example will be found in Johnson v. Thweatt, 18 Ala. 741, where prop- erty of the value of $7,000 was conveyed in trust to secure a debt of $150, and several other small debts not yet due, the deed permitting the grantor, in the meanwhile, to remain in possession of the premises. The deed was held void on its face, and a remote purchaser thereunder charged with notice of the fraud. 180 MARKETABLE T1TLK TO REAL ESTATE. \Vant of Statutory Recitals. In some of the Stat<>8 it is required by statute that certain deeds executed in pursuance of a sale under judicial authority, or by an officer acting in a ministerial capacity, .-m-li as tax collector, shall contain recitals, showing the concurrence of particular facts on which the validity of the sale depends. See 3 Washb. Real Prop. 222, 229; Fre2 Washb. Real Prop. 484 (177). 3 Hicks v. Hicks, (Tex.) 26 S. W. Rep. 227. 4 Wood v. Mann, 1 Sumn. (C. C.) 500. 3 Washb. Real Prop (4th ed.) 260 (565), 339. But see, as to duress, Anderson v. .Anderson, 9 Kane. 116, where it was held that a married, woman's deed, executed under duress, was void even as against a purchaser for value without notice. Contra, White v. Graves, 107 Mass. 325. 188 MAltKETABLE TITLE TO REAL ESTATE. executed in fraud of creditors ; * the right to fix a lien upon the premises for the purchase money; 2 the right to compel a convey- ance of the legal title from the vendor. The general rule is that a purchaser for value and without notice, who has paid the pur- chase money in full, is not affected by latent frauds or equities of any kind. 8 Incompetency of Parties to Deeds or Wills, with Respect to Infancy, Coverture, Alienage, Mental Capacity or other Disabilities. A deed executed by a person incompetent to contract or to convey, passes no title, even as against a purchaser for value without notice. So, also, a conveyance or devise to an alien enemy. The purchaser can, of course, ascertain the competency of the .parties only by inquiries in pats. As a matter of fact these inquiries are seldom made in respect to remote grantors, the risk in such cases being generally considered slight. Adverse Occupancy of the Premises. The purchaser should never omit to inquire as to the occupancy of the premises. The record title may be apparently perfect, and there may be nothing to indicate a want of title in the vendor, but the fact that the premises are in the adverse possession of a stranger. In such a case he is put upon inquiry, and charged with notice of the rights of the occupant. 3 Washb. Real Prop. (4th ed.) 317. The Non-performance of Conditions Antecedent and Subsequent, and the Happening or Non-happening of Contingencies upon which an Estate Depends. These should be shown by affidavits. The Occurrence of Marriages, Births and Deaths, wherever they would Affect the Vendor's Title. All such facts must be ascertained by inquiries dehorn the record, and should be embodied in affidavit* to be used in verifying the abstract. Forgeries of Deeds or Wills, and Fraudulent Alterations or Insertions therein. The purchaser should examine the original of all deeds, ;i~ well as the copies of record. He takes the risk of having the actual state of the title correspond with that which appears of record. The registration of a deed, void from forgery, interlineation or other like cause, will not |.mt. ,-t the purchaser. Gray v. Jonea, 14 Fed. Rep. 83. Reck v. Clapp, 98 Pa. St. 581; Arrison v. Harmsted, 2 Barr (Pa.), 191; Wallace v. Harmftted, 8 Wright (Pa.), 404; 53 Am. Dec. 603; Van Amringe v. Morton, 4 Whurton (Pa.), 382; 34 Am. Dec. 617. 3 Wahh. Real Prop. (4th. ed.) 333. Warvelle Vend. BOO. f Cngrl v. Raph, 24 Minn. 104. KlannagHn v. Oberthier, 50 Tex. 370. ABSTRACT OF TITLE. 189 Dower and Curtesy Rights. The existence of these must be ascertained by inquiries dehors the record. Latent Ambiguities in the Description of the Thing Granted or Devised, or of the Persons who are to Take as Grantees or Devisees. Where these occur they must, of course, be explained by evidence aliunde, if, indeed, they may be explained at all. See 1 Greenl. Ev. 297. Insufficiency of the Evidence to Establish Title by Inheritance. If the vendor's abstract shows title in him as heir it should be sus- tained by the affidavits of those having knowledge of the fact of inherit- ance. Insufficiency of the Evidence to Establish Title by Adverse Possession. If the vendor claims by adverse possession there should be affidavits to show such a possession 1 under color of title for a period sufficient to bar the rights of all persons, including those under disabilities when the cause of action accrued. The Want of Jurisdiction of the Person in Judicial Proceedings. See ante, " Caveat Emptor," 49. An illustration will be found, ante, 78. The Existence of Physical Incumbrances Upon the Premises. Such, for example, as a private right of way, a mill dam or the like. Post, ch. 31, 305. Want of Possession under the Several Deeds in the Vendor's Chain of Title. It is a familiar rule that an unbroken chain of conveyances down to the plaintiff in ejectment is no evidence of title in him unless possession under and in pursuance of such conveyances appears. Stevens v. Hosmer, 39 N". Y. 302. As a matter of fact, however, in the examination of a title possession is always presumed to have followed the several conveyances under which the vendor claims, and an inquiry into the fact of posses- sion is never made unless there is something in the case to excite the suspicions of the purchaser. Want of Delivery of Deeds; Wrongful Delivery of an Escrow. See Devlin on Deeds, 264, 267, 323. The Existence of an Unrecorded Deed within the Period During which such a Deed is by Statute, in some States, Allowed to Relate back and Bind Subsequent Purchasers from the Time of Acknowledgment. See the statutes of the several States. Martindale's Abst. p. 25. CHAPTER VIII. WAIVER OF OBJECTIONS TO TITLE. IN GENERAL. 80. WAIVER BY TAKING POSSESSION. 81. LACHES OF PURCHASER. $ 82. WAIVER BY CONTINUING NEGOTIATIONS. 83. WAIVER IN CASES OF FRAUD. 84. WAIVER BY PURCHASING WITH NOTICE OF DEFECT. $ 85. SO. IN GENERAL. The expression "waiver of objections to title/' as generally used, means a waiver of the right to recover damages against the vendor for inability to perform his contract by reason of a defective title, or of the right of the purchaser to rescind or abandon the contract on the ground of the insufficiency of the vendor's title. 1 In either case the principles upon which the existence of the waiver is determined are the same ; and it is, there- fore, apprehended that no inconvenience can result from treating the subject generally, without reference to the particular form of relief which the vendor claims to have been waived. The doctrine of waiver of objections to the title relates chiefly to cases in which the contract remains unexecuted by a conveyance of the premises. If the purchaser accept a conveyance without covenants for title, the rule is general that he can have no relief at law or in equity if the title prove defective. Strictly speaking, however, this is more a matter of contract than of waiver implied from the acts and con- duet of the purchaser. Still, there are rights respecting a defective title which the purchaser may waive even after the contract has 1 This is without doubt the general acceptation of the expression in the American practice. More v. Smedburgh, 8 Paige (N. Y. ), 000. But such a definition is perhaps too broad for the English practice, for there it ha leen held that if a purchaser have actually waived his right to call for a title, and afterwards for the purpose of settling a conveyance a deed is produced which shows a bad title, he will not be compelled in equity to accept the bad title. 1 Sugd. Vend. 347. citing Warren v. Richardson, Yo. 1 ; Wilde v. Fort, 4 Taunt. 334; Hume v. Bentley. 5 De O. 4 Sm. 520; Geoghegan v. Connolly, 8 Ir. Ch. Rep. 508. Such a case, however, is not likely to ari^e in America, 11 conveyance* AM a general rule being there spread upon the public record* nd open to the inspection of the purchaHor. The general doctrines relating to waiver of objection)! to title will be found in Mr. Fry's valuable treatise on Specific Performance (3d Am. ed.), I 1305. WAIVER OF OBJECTIONS TO TITLE. 191 been executed ; for example, the right to rescind the contract on the ground of fraud, assuming that the conveyance was accepted with- out knowledge of the fraud. 2 It must be borne in mind that a waiver of objections to the title is not the equivalent of a waiver of all the rights of the purchaser in respect of the defective title, for it may be that the waiver was brought about by the reliance of the purchaser upon the covenants for title that he had a right to expect. In other words, the pur- chaser does not, by waiving the right to rescind the contract, or to recover damages for the violation thereof while it remains execu- tory, waive the right to a conveyance with covenants for title ade- quate for his protection in a case in which the contract entitles him to such covenants. An act which amounts to a waiver of the right to reject a defective title is not necessarily a waiver of the right to compensation for the defect. 3 Neither is an agreement by the 'Post, this chapter, 82, 84. 3 1 Dart Vend. 437; 1 Sugd. Vend. 343. Cakraft v. Roebuck, 1 Ves. Jr. 221. Roach v. Rutherford, 4 Desaus. (S. C.) 126; 6 Am. Dec. 606. See, also, Palmer v. Richardson, 3 Strobh. Eq. (S. C.) 16. A sale of "all his (the vendor's) interest in the devise made to him by his father, F. B., deceased, in a certain tract," etc., is not a contract of hazard, the reference to the devise being merely descriptive of the property, and the purchaser is entitled to indemnity against incumbrances on the land. Price v. Browning, 4 Grat. (Va,) 68. In the case of Evans v. Der Germania Turn Verein, 8 111. App. 663, the title had been examined and prononuced good by the purchaser's attorneys. The purchaser then paid part of the purchase money, took pos- session, made material alterations in the premises, collected rents, and otherwise treated the contract as valid and subsisting. Afterwards, on a second examination of the title by other attorneys, it was pronounced bad, and the purchaser sought to rescind the contract. Rescission was refused, the court saying, among other things, that the contract, which was conditioned on the purchaser's acceptance of the title, had been made absolute by his conduct in the premises, but that the sellers ^vere not absolved from their obligation to convey to the purchaser at the proper time a good title, free from incumbrance. In Goddin v. Vaughn, 14 Grat. (Va.) 102, it was intimated that a purchaser buying and taking possession with notice of defect of title waives his right to insist upon covenants of general warranty from the vendor. Perhaps such a decision was unnecessary, as the sale was by an executrix, from whom no general covenants for title could be required. But the authorities cited by the court sustain a materially different propo- sition, namely, that in such a case the purchaser waives his right to rescind the contract or reject the title. It can hardly be denied that a purchaser, after being informed of an objection to the title, may, and in fact does in many cases, proceed with the bargain and look to the covenants which he 192 MARKETABLE TITLE TO REAL ESTATE. purchaser to accept a deed without warranty to be construed as of itself a waiver of the right to require the production of a clear title. On the contrary, the presumption is that the purchaser intends to insist upon that right, inasmuch as he will have no warranty to protect him if the title should prove defective. 4 Obviously a waiver of objection to the title must be the relin- quishment or abandonment of some right with respect to the title to which the purchaser under the contract is entitled, and contem- plates objections which were either unknown to the purchaser at the time of the contract or without reference to which the contract was concluded. If the purchaser bought only such right, title or interest as the vendor had, expressly taking the risk of the title, there can be, in the nature of things, no opportunity for any ques- tion of waiver. Hence, it follows that the waiver may be implied, (1) from the acts and conduct of the purchaser with respect to defects of title coming to his knowledge after the conclusion of the contract, and (2) from the mere fact that the contract was made by the purchaser with knowledge that a clear and unin- f-u inhered title could not be had. It should be observed here that waiver of objections to title in the sense in which the term is commonly employed is not an element of the contract between the parties, but rather an implication of law from the acts of the purchaser. 5 Where, in a contract for the sale of land, a day is fixed for the conveyance of the property, if the vendee wishes to object to the title he must give notice of his objections a reason- able time previous to the day fixed for making the conveyance to enable the vendor to remove the objections to the title and to make the conveyance at the time sj>eeified, or a court of equity may consider a strict ]>erformance of the contract by a conveyance on the specified day as waived.' -But a purchaser may in some eases be deemed to have waived his right to a strict performance receive for hi* protection. True, a purchaser may expressly agree to take the title, such as it K without warranty, hut it seems scarcely fair to him to iin/fi/ mirh an agreement from the mere fact of his taking pos- avion with knowledge of the oVfc. tivr titTe, Learh v. Johnnon, 114 N. C. 87. Gallimoro v. Grubb, 150 X. C. 576; 72 & 1 BJ& 1 Sugd. Vend. (8th Am. ed.) 617 (343). More T. Smedhurgh. 8 Paige (N*. Y.). (500. Allen v. Adam*. 1 Iowa 300; 143 X. W. 10" :i v. Lenox (Mo. App.) "201 S. V. Ofli. WAIVER OF OBJECTIONS TO TITLE. 193 of the contract on a specified day without being held to have waived his right to rescind in case the vendor be unable eventually to remove the objections to the title. 7 If the vendor can establish a case of waiver of objections, he should not ask to have the title referred to a master or take any other step showing that he does not rely on the waiver. 8 A purchaser may waive or lose his right to rescission by an express confirmation of the contract, 9 or by dealing with the prop- erty as his own after knowledge of the circumstances which entitle him to rescission, 10 or by a presumed acquiescence in the title dis- closed by the vendor, even though possession has not been taken. 11 J., in Jackson v. Ligon, 3 Leigh (Va.), 194 (179). 8 1 Sugd. Vend. 347, .citing Harwood v. Bland, 1 Fla. & Ke. 540. ' 1 Sugd. Vend. 252, citing Chesterfield v. Janssen, 2 Ves. 146; Roche v. O'Brien, 1 Bal. & Beat. 355; Cole v. Gibbons, 3 P. Wms. 290; Morse v. Royal, 12 Ves. 355; Sandeman v. Mackensie, 1 J. & H. 613. The fact that the pur- chaser's counsel approves the abstract of title submitted by the vendor does not amount to a waiver of all reasonable objections to the title. Deverell v. Bolton, Ii8 Ves. 605. An objection to the title on the ground of incumbrances is waived where, upon an offer to procure releases, the vendor's attorney says that it is unnecessary, as he proposes to rely upon a deficiency in the area of the premises. Cogswell v. Boehm, 5 N. Y. Supp. 67. "Campbell v. Fleming, 1 Ad. & El. 40. 2 Sugd. Vend. (8th Am. edO 22 (423). An agreement by the purchasers that judgment might go against them for the purchase money in consideration of the dissolution of an injunction against them for cutting down timber, has been held a waiver of objections to the title. McDaniel v. Evans, (Ky.) 14 S. W. Rep. 541. So, also, the execution of a new note for the purchase money to an assignee of the original note, in consideration of further indulgence. Wills v. Porter, 5 B. Mon. (Ky. ) 416. Three months' delay by the purchaser in giving notice of rescission after judgment in favor of an adverse claimant has been held no waiver of the right to rescind. Wilcox v. Lattin, 93 Cal. 588; 29 Pac. Rep. 226. "Fordyce v. Ford, 4 Bro. C. C. 494. Forsyth v. Leslie, 77 N". Y. Supp. 826; 74 App. Div. 517. A common provision in the English conditions of sale, with respect to waiver of objections to the title may be found in the case of Soper v. Arnold, L. R., 14 App. Cas. 429, and is as follows: "All objections and requisitions (if any) in respect to the title or the abstract, or anything appearing therein, respectively, shall be stated in writing and sent to the vendor's solicitor within seven days from the delivery of the abstract, and 'all objections and requisitions not sent within that time shall be considered to be waived, and in this respect shall be deemed the essence of the contract." This time may be enlarged by acts of the vendor amount- ing to a waiver. 1 Sugd. 267. Cutts v. Thodey, 13 Sim. 206. 25 194 MAKKKTAHLK T1TI.K TO KKAL KSTATE. Hut the purchaser must have boon fully apprised of the facts " and of his legal rights, 11 and the effect of his acts, 14 and must have acted of his own frw will K before he will he deemed to have waived his right to rescission. The purchaser may, of course, waive objections to the title in express terms, but in most instances the waiver is implied from his acts and conduct." In the English practice a waiver of objections to the title means a waiver of the right to examine the title, that is, to require the vendor to produce a title and support it by proper evidence. In each case the question is whether the purchaser intended to waive this right ; 17 but such an intention may be inferred from his acts without having been directly expressed, and this, though he swear that he did not mean to waive the objections. 18 Taking possession with notice of the objections, failure to insist on objections disclosed by an abstract furnished, granting a lease of the premises, have each been held a waiver of objections. 1 ' "Life Amon. v. Siddall, 7 Jur. (N. S.) 785. See, also, cases cited 1 Sugd. Vend. (8th Am. ed.) 384. It seems that if the vendor was guilty of fraud in respect to the title, the purchaser will be presumed not to have been apprised of his rights. Baugh v. Price, 1 Wil. 320. "Cockerell v. Cholmeley, 1 Rus. & My. 425. " Duntmr v. Tredennick, 2 Bal. & Beat. 317; Waters v. Thorn, 22 Beav. 547. u 1 Sugd. Vend. 253, citing Crowe v. Ballard, 3 Bro. C. C. 117; Scott v. Davi*. 4 My. & Cr. 91 ; Wtiod v. Downes, 18 Yes. 120; King v. Savery, 5 H. L. Ca. 027; Brereton v. Barry, 11 Ir. Ch, 109. " I Sugd. Vend. 343. Dorsch v. Andrus, 111 Minn. 287, 126 N. W. 1071. Dunn v. Mill*, (Kan*.) 79 I'ac. 14 453. Christian v. Cabell, 22 Grat. (Va.) 99. Harm-it v. Gamin, 8 Ala. 373. Mitchell v. Pinckney, 13 So. Car. 203; Roach v. Rutherford, 4 Desaus. (S. C.) 126; 6 Am. Dec. 606; Palmer v. Richardson, 3 Strobh. Eq. (S. C.) 16. Craddock v. Shirley, 3 A. K. Marsh. (Ky.) 1139. Richmond v. Gray. 3 Allen (Mass.), 25. McCauley v. Moses, 43 Ga. 577. Allen v. Adams, 162 Iowa, 300, 143 X. W. 1092. Zempel v. Hughes, 235 111. 424. 85 X. E. 641. In Beck v. Simmons, 7 Ala. 76. it was said by ORMOXD, J. : " It would be contrary to equity and good conscience to permit one who proceeds HO far in a purchase as Rich Eq. (S. C.) 370); Steven* v. Guppy, 3 Rus. 171; Hendricka v. Gillrnpir. 2ft Grat. (Va.) 181. Thin exception renders the rule comparatively of little importance in America, for in the vast majority of oases, especially tho** in which the payment of the purchase money and the execution of th* conveyance are deferred, the contract provides that the purchaser shall WAIVER OF OBJECTIONS TO TITLE. 197 a good title and takes possession with the concurrence of the vendor ; 32 nor where the vendor had agreed to remove the objec- tion to the title. 33 There must also be circumstances to show that the purchaser intended to accept such title as could be made, and to rely for his redress upon the covenants for title which he was to receive from the vendor. Z4f It is oflbvious that great injustice may be done the purchaser by a too liberal interpreta- tion of his acts as a waiver of objections to the title, and there are decisions which restrict such conclusions to cases in which an. intention to waive the objections by taking possession clearly appears. 35 The mere act of taking possession of real estate and exercising acts of ownership over it will not preclude the pur- chaser from his right to examine the title, unless the court is satisfied that he intended to w T aive and has actually waived such right. The waiver is a question of intention and one of fact from all the circumstances, and not an arbitrary presumption of law have possession. In England it is the common practice to provide in the conditions of sale that the purchaser may take possession without prejudice to his right to object to the title. See Adaris v. Heathcote, 10 Jur. 301. "Dart Vend. (5th ed.) 434; 1 Sugd. Vend. (8th Am. ed.) 337. Magaw v. Lothrop, 4 Watts & S. (Pa.) 321. Burroughs v. Oakley, 3 Swan, 159. Burnett v. Wheeler, 7 M. & W. 364. In this case it was held that an express agreement to make a good title hound the vendor at law to remove defects in the title known to the parties at the date of the contract, and which were capable of being removed. The right to rescind is not lost by a verbal waiver of such agreement. Goss v. Nugent. 2 Nev. & Man. 35. " Burnett v. Wheeler, 7 M. & W. 364, supra ; Duncan v. Cafe, 2 M. & W. 244. In Barton v. Rector, 7 Mo. 524, where by the contract the purchaser was to have a conveyance with general warranty, he was allowed to rescind though he bought with notice of incumbrances on the land. 14 Jones v. Taylor, 7 Tex. 240; 56 Am. Dec. 40; Hurt v. McReynolds, 20 Tex. 595 ; Hurt v. Blackstone, 20 Tex. 601 ; Littlefield v. Tinsley, 22 Tex. 259. 35 In Corey v. Matheson, 7 Lans. (N. Y.) 80, it was said by MUIXIN, P. J. : "It has been repeatedly said that a purchaser who takes and retains posses- sion of lands under a contract of purchase is estopped from alleging a defect in the vendor's title. 1 Hilliardi on Vend. 4, 223; Viele v. R. Co., 20 N. Y. 184. But the proposition thus broadly stated is not supported by any adjudged case that I have been able to find. * * * When the defect in the title is such as necessarily to lessen the value of the property, it will not be held waived except upon the most conclusive evidence that it was his inten- tion so to do," citing King v. King, 1 Myl. & K. 442; Burroughs v. Oakley, 3 Swanst. 159; Minor v. Edwards, 12 Mo. 137; 49 Am. Dec. 121. See, also, to the same effect, Bank of Columbia v. Hagner, 1 Pet. (U. S.) 455. Jonea v. Taylor, 7 Tex. 240; 56 Am. Dec. 48. 198 MAKKETAI1LK TITLE TO KEAL ESTATE. from the mere fact of taking possession. 38 But if he exercises acts of ownership after notice or information of defects in the title, he will, as a general rule, be deemed to have waived his objections to the title. 37 It has been held that a purchaser taking possession with knowledge that the vendor has made fraudulent representations as to the title, though he may thereby waive his right to rescind the contract, does not waive his right to recover damages for the fraud by action of deceit. 88 When the purchaser becomes aware of facts respecting the title whica give him a right to rescind the contract he must exercise that right promptly. It is an evidence of bad faith that he raises no objection to the title on account of known defects or incum- branees, until he is sued for the purchase money. 89 The question whether or not the purchaser waived his right to rescind the con- tract by taking possession when he knew the title to be defective, is not a question of law, but a question of fact to be determined by all the circumstances surrounding the transaction. 40 If the pur- chaser makes no objection to the title shown by the vendor, and takes possession but refuses to complete the contract afterwards on the sole ground that the vendor failed to tender a conveyance of the premises in due time, he will be deemed to have waived objections to the title. 41 "Page v. Greeley, 75 111. 400. Lilienthtil v. Bierkamp, 133 Iowa 42, 110 X. W. 152. " Canton Co. v. Balto. & Ohio R, Co., (Md.) 29 Atl. Rep. 821. Keeper T. Yocum, 84 Kan. 554, 114 Par. 1063; Ann. Cas. 1912 A, 748; Nicholson v. Lieher. (Tex. Civ. App. ) 153 S. \V. (541. Where the purchaser sold certain fixture** on the premises lo the vendor's husband, hut when the fixtures were being taken down Hiijrne*tcn the covenants for title which he is to receive. 50 83 WAIVER BY CONTINUING NEGOTIATIONS WITH THE VENDOR. If the purchaser proceeds with his negotiations after he has been informed of defects in the title and knows that a good title cannot be made until those defects are cured, he will be held to his bargain 51 notwithstanding the expiration of the time that the title is defective, withhold the purchase money for an time and then demand specific performance, the property having in the meanwhile greatly increased in value. Taylor v. Williams, 45 Mo. 80. In Taylor v. William*, (Colo.) 31 Par. Rep. 504, it was held that a delay of a month by the pun ha-or in electing to rewind the contract on the ground of dcfrctn of title nhown by the abstract did not deprive him of the right to recover back bin deponit and expense*. 1 Sugd. Vend. 254. Vail v. Xel*on. 4 Rand. (Va.) 478. * Sniffer v. Diet*. 53 Hmv. Pr. (X. Y.) 372. Kennedy v. Woolfolk. 3 Hayw. (Tenn.) 10/5. So. Par. R, Co. v. ( h*te. 132 Cal. 278; 64 Pac. 292. "Iliffjrin* v. KaRlrt ]. 14 Pollard v. Roger*, 4 Call (Va.) -r.W. Haldane v. Sweet, 55 Mich. 1%. Lockridg. r. 4 Scam. (111.) 569. Glasscock v. Minor, 11 Mo. 655. Davis v. Kvans, 02 Ala. Ml . Cam-it v. Lynch, 45 Ala. 204. A sul.-pun-ha-er Nvli'i aniline* the payment of the original purchase money, and pays part of it aft-r di-covi-ring ot.je. t inns to the original vendor's title, has no remedy againxt hi* immediate vendor, though the latter may have fraudulently rep- mtnttd the title to be good. Blanchard v. Stone. 15 Vt. 271. *\>rnol v. Vi-riuil. fi.T N'. Y. 45. In Patto.i v. Kngland, 15 Ala. 71, it wan hold that if the purchaser accept* a deed with warranty, lie cannot, sot up fraud an a defense to an action for the purchase money. The inference, how- ever, from the fact* dated in the ea*e in that the purchaser accepted the con- veyance after knowledge of the fraud. "Marshall v. Oilman. J7 Minn. 131; 49 N. W. Rep. 688. WAIVER OF OBJECTIONS TO TITLE. 203 the removal of an incumbrance, which had come to his knowledge, as a condition upon which he would accept the conveyance, did not necessarily amount to a waiver of his right to require that the incumbrance be removed, unless it should appear that the situation of the vendor had been changed for the worse by reason of such declarations.' 1 | 85. WAIVER BY PURCHASING WITH NOTICE OF DEFECT. It has been seen that if the purchaser take possession with notice of an incumbrance or defect in the title, he will, as a general rule, be deemed to have waived his right to rescind the contract for either of those causes. 62 A fortiori, if he purchase knowing the title to be defective or the property incumbered, will he be denied the right to rescind, 63 unless the defect or incumbrance was con- w Swan v. Drury, 22 Pick. (Mass.) 485. "Ante, 81, post, 246. 89 2 Sugd. Vend. 549; 1 id. 265; 2 Warvelle Vend. 843. See cases cited ante, "Waiver by Taking Possession," 81 and post, 247; Anderson v. Lincoln, 5 How. (Miss.) 284; Wiggins v. McGimpsey, 13 Sm. & M. (Miss.) 532. Mayo v. Purcell, 3 Munf. (Va.) 243; Jackson v. Ligon, 3 Leigh (Va,), 161; Goddin v. Vaughn, 14 Grat. (Va.) 102. Mills v. Van Voorhis, 23 Barb. (N. Y.) 125; Keating v. Gunther, 10 N". Y. Supp. 734. Alexander v. Kerr, 2 Rawle (Pa.), 80; 19 Am. Dec. 616; Walker v. Quigg, 6 Watts (Pa.), 90; 31 Am. Dec. 452. Rader v. Neal, 13 W. Va. 373. Bryan v. Osborne, 61 Ga. 51. Home v. Rogers, 110 Ga. 362; 35 S. E. 715. Gooding v. Decker, (Colo.) 32 Pac. Rep. 832. Craddock v. Shirley, 3 A. K. Marsh. (Ky.) 288. Turner v. Howell, 21 Ky. Law R. 979; 53 S. W. 643. Davenport v. Latimer, 53 S. C. 563; 31 S. E. 630. Marcus v. Clark, 185 Mass. 409; 70 N. E. 433. Canton Co. v. Balto. & Ohio R. Co., (Md.) 29 Atl. Rep. 821. Wilson v. Riddick, 100 Iowa 697; 69 N. W. 1039; Ditchey v. Lee, 167 Ind. 267, 78 X. E. 972; Behr v. Hurwitz, 90 N. J. Eq. 110, 105 Atl. 486. Younie v. Walrod, 104 Iowa, 475; 73 N". W. 1021, where the objection to the title was that no patent for the land had issued. But as it appeared that the purchaser knew that fact when he signed the contract, he was required to take the title. A purchaser at a judicial sale who allows the sale to be confirmed without objection for defects of title of which he had knowledge, must pay the purchase money, and cannot be allowed to rescind, though he acquires no valid title. Young v. MfClung, 9 Grat. (Va. ) 336. Where an auctioneer told a prospective bidder that the purchase money would be applied to the discharge of incum- brances on the property, but offered the property for sale without an announcement to that effect, it was held that a jury was warranted in finding that the property was sold free of incumbrances, and that such bidder pur- chased with that understanding. Mayer v. Adrian, 77 N. C. 83. In Louisiana it is held that a purchaser buying with knowledge of defect of title does not waive his right to rescind, unle&s there was a stipulation in the contract >04 MARKETABLE TITLE TO REAL ESTATE. templated by both parties at the time of the purchase, and the vendor's agreement that they should be cured or removed remain unperformed." If the purchaser enter into the contract with notice that he cannot get a title beyond a limited period, he will be held to have waived any objection to completion of the con- tract on that account. 66 And the implication of law, in the alienee of any express contract, that a clear title was to be con- veyed to the purchaser, may be rebutted by showing that he was aware of the existence of incumbrances on the estate when he purchased." No waiver of a right to object to the title will be presumed from that the vendor would not warrant the title, or that the purchaser bought at his peril. Boycr v. Amet, 47 La. Ann. 721; Hall v. Nevill, 3 L*. Ann. 326. See also to the same effect, Wallach v. Riverside Bank, 206 N. Y. 434, 100 N. E. 50; McCulloch v. Bauer, 24 N. D. 109, 139 X. W. 318. It has been held also that if the" vendor agreed to convey a fee simple title clear of all incumbrances, it is no defense to an action against him for non- pt-rfurmance that the purchaser was aware of defects in the title at the tame of the contract. Godwin v. Maxwell, 106 Ga. 104, 32 S. E. 114; Foute v. Klclcr, 100 Ga. 713, 35 S. E. 1W; Junk v. Barnard, 90 Ind. 137; Jenkins v. Hamilton, 153 Ky. 163; 154 S. W. 937. Ante, "Waiver by Taking Possession," 81. Jackson v. Ligon, supra, was a suit by the vendor to compel 8peciflc performance, and the defense was that the title was bad.. The vendor replied thfc.t the defendant purchased with knowledge of the defective title, hnd the purchaser admitting that fact, averred that by the contract the vendor was expressly bound to make a good and lawful right. Several opinions were rendered by the judges, all in favor of the defendant on this point. The contract was executory, but the case wa# treated by two of the judges, BKOOKK, J., and TUCKER, P., as if there had been a conveyance with covenant H against the defects alleged, the latter judge saying: " The case of Stockton v. Cook, 3 Munf. (Va.) 68; 5 Am. Dec. 504, very clearly shows the understanding of this court that a covenant against ini-innbrajHfs comprehends known as well as unknown incumbrancea, and that the vendee is not precluded by his previous knowledge from claim- ing the fulfillment of the covenant. Were it otherwise it would be impotwible for him to provide for his security." In Newbold v. Pcalnxly Heights Co., 70 M-l. 413; 17 All. Rep. 372, it was held that a purchase with notice of n easement in or restriction on the use of the premises would not amount to & waiver if, by the express terms of the contract, the purchaser was entitled to an estate clear of all restrictions and incumbrances. See also Snowden v. Derrick, 14 Cal. App. 309, 111 Pac. 757. m 1 Sugd. Vend. 346. Godmn v. Turner, 15 Beav. 46; 3 Mcr. 64. "Newark Sav. Int. v. Jones, 37 N. J. Eq. 449. WAIVER OF OBJECTIONS TO TITLB. 205 the fact that the contract of sale contains no provision that the con- veyance to be executed shall contain covenants for title." If the purchaser, with full knowledge of the imperfection of the title, takes a bond to protect himself against possible loss, i. e., a title bond, he of course waives all right to rescission. His remedy in such case is by action on the bond. 68 As a general rule, the existence of an open, notorious and visible physical incumbrance upon the estate, such as a public highway, forms no objection to the title, because it is presumed that the purchaser was to take subject to such incumbrance. Neither does such an incumbrance entitle the purchaser to com- pensation, nor to an abatement of the purchase money, nor to a conveyance with a covenant against the incumbrance, because it is presumed that in fixing the purchase price the existence of the incumbrance was taken into consideration. A recent decision of the Supreme Court of Judicature in England thus states the rule: "Where it is obvious that there is a right of way enjoyed by some third person, or by the public in general, the existence of such right of way cannot give rise to any objection to the title, as, for example, if the estate sold is a large one with a public highway running through it, then it is obvious that it was not intended to sell the property free from such right of way, but the purchaser would take subject to the right of way." 69 87 Speakman v. Forepaugh, 44 Pa. St. 363, the court saying that the Penn- sylvania rule that it is presumed that a purchaser who, with knowledge of a defect of title, takes a conveyance without covenants, intends to run the risk of the defect, has no application " to a mere executory contract of sale, a contract which is only preparatory. Articles of agreement for the ale of land are not intended to describe minutely the extent of the rights to be assured to the purchaser. They rarely undertake to declare what covenants the vendor shall give. They refer not to the title of the vendor when they are executedi, but to an -assurance afterwards to be made, it may be, of a right which the vendor is expected to acquire after he has engaged to con- vey. There is, therefore, no presumption that a vendee by articles has agreed to waive any right which the articles, standing alone, would give him." 68 See post, 248. Green v. Finucane, 5 How. (Miss.) 542. Baldridge v. Cook, 27 Tex. 566. Hbrne v. Rogers, 110 Ga. 362; 35 S. E. 715. Eussell v. Handy, 22 Ky. Law R. 933; 59 S. W. 320. " Ashburn v. Sewell, L. R., 3 Ch. Div. ( 1891 ) 105. The same case decides that the mere delineation of a road on a map of the premises sold will not raise a presumption that the purchaser was to take subject to an easement 206 MARKETABLE TITLE TO REAL ESTATE. A species of rescission of an executed contract for the sale of lands exists in those cases in which the purchaser, to avoid a cir- cuity of actions, is permitted to detain the unpaid purchase money wherever he has a present right of action against the vendor on the covenants in the conveyance; that is, to sot up the defense of failure of title by way of recoupment in an action for the pur- chase money. 70 It has been held that the purchaser waive-; this right by purchasing with notice of the defect or incumbrance. 71 There would seem to be no reasonable objection to uch a rule in eases where the purchaser could apply the purchase money to the removal of the defect or discharge of the incumbrance, or those in which the objections to -the title were not recognized and provided for in the contract; but if the vendor expressly agreed to remove the defect or discharge the incumbrance, it is not easy to perceive why the purchaser should not be allowed to detain the unpaid purchase money, as he is permitted to do in the case of an in the road enjoyed by third persons, there being nothing to warn the pur- dttcer that strangers had a right to use the road. See also, post, 1-J7-. Hornbeck v. Smith, 87 Ore. 78; 168 Pac. 633. A railroad is not a pulilir highway within the rule stated in the text. Pryor v. Buffalo, 107 N. V. 123. ! \. E. 423. " Post, ch. 26. ".Greenleaf v. Cook, 2 Wh. (U. S.) 13. Bradford v. Potts, 9 Pa. St. 37. Findley v. Homer, 9 Neb. 537; 4 N. W. Rep. 86. Busby v. Treadwell. 24 Ark. 457; Worthington v. Curd, 22 Ark. 284, where it was said that knowledge of a defect of title or an incumbrance was no objection to recovery upon the covenants of the deed in a court of law, but was ground for equity to refuse* relief out of the unpaid consideration, because it appears that with Mich knowledge the purchaer chose to rely upon tin- covenants, and to their legal effect he will be remitted. See also Stone v. Buckner, 20 Mis*. 73. Beck v. Simmons, 7 Ala. 76. Twohig v. Brown, (Tex.) 19 S. \V. Hep. 768. Sec also pot, f 271. In case of a defect of title as to part of the premises, th- purchaser waives any right of rescission he my have by act-opting a conveyance f the residue. Harrison v. Deramus, 33 Ala. 463. If a purchaser accepts a warranty deed with full knowledge that an ejectment suit is pomi- ins/ for a imall portion of the land, he will be deemed to have waived tlio right to init upon being put in possession of the disputed portion, and to have taken tin- n-k of gaining or losing the same, ami. therefore, he can- in.t detain the purchase money to the extent of the value of the land in di-put,-. .MIIIM.II v. Jarre*, 14 W. Vfc. 23i. It i- dinVnlt t.. remn.-ilo t In- decision with the rule that the purchaser'* km>\\ ledge ..f the e\i-ti-nn- of defects in the title to the premises will not affect his right to recover for a breach of the covenants for title, or to detain the purchase money whore he WAIVER OF OBJECTIONS TO TITLE. 207 unexecuted contract ; 72 especially when it is remembered that knowledge of the defect or incumbrance does not affect the pur- chaser's right to recover on the vendor's covenants, 73 and that the detention of the purchase money is no more than the assertion of this right in another form. It has been held that the purchaser will be charged with notice of the defective title wherever, with common or ordinary diligence, he might have informed himself of the objection, 74 as where it consists of an incumbrance of record 75 or of a fact appearing from the instruments under which the title is derived and which the purchaser is presumed to have examined. 76 The better opinion, however, seems to be that the doctrine of constructive notice from the public records has no application to questions which arise between vendor and purchaser. 77 85-a. Contract to convey free of incumbrances. If the writ- ten contract between the parties expressly provide that the vendor shall convey the premises free from incumbrances, it is of course immaterial that the purchaser had notice at the time of the con- tract that there was an incumbrance on the property. He has a right to insist upon the terms of his contract. 78 It is conceived, is entitled to substantial damages for such breach. The very object of covenants for title is to protect him as much against known as unknown defects of title. "Post, ch. 24. "Stockton v. Cook, 3 Munf. (Va.) 68; 5 Am. Dec. 504. 74 Steele v. Kinkle, 3 Ala. (X. S.) 352. 75 Steele v. Kinkle, supra. Wiggins v. McGimpsey, 13 Sm. & M. (Miss.) 532. 78 In Wagner v. Perry, 47 Hun. (N. Y.), 516, it was held that the vendor was not in fault in failing to mention the fact that a map had been filed by the public officials increasing the width of a street which bounded the prop- erty. "Post, ch. 11, 104. Nichol v. Nichol, 4 Baxt. (Tenn.) 145. 7S Weiss v, Binnian, 178 111. 241, 52 N. E. 969. The incumbrance in this case was an easement an ice cutting privilege previously conveyed by the vendor to a third person. The decision would be more satisfactory if the incumbrance had been one of a kind which the vendor could have removed, as a matter of right. It might then have been plausibly contended that notice of the incumbrance did not affect the purchaser's right to recind, because it was the intent of the parties that the incumbrance should be removed. 208 MARKETABLE TITLE TO REAL ESTATE. however, that such an agreement should be limited to those incumbrances which the vendor has the right to remove, such as a mortgage, judgment, or other pecuniary lien. If the incumbrance be of a kind which the vendor cannot remove as a matter of right, such as an easement, it is not to be presumed that the pur- chaser, knowing the existence of the easement, intended the insertion of a vain provision in the contract. 79 "Pryor v. Buffalo, 197 N. Y. 123, 90 N. E. 423; Bacot v. Fessenden, 119 N. Y. Supp. 464, 64 Misc. 422; Goodman v. Schwab, 121 N. Y. Supp. 69, 136 App. Div. 492. CHAPTER IX. TENDER OF PERFORMANCE AND DEMAND FOR DEED. TENDER BY PURCHASER. 86. EXCEPTIONS. 87. TENDER BY VENDOR. 88. PLEADINGS. 89. | 8,6. GENERAL, RULE. Few contracts for the sale of lands are completed at the time the vendor agrees to sell and the purchaser agrees to buy. Ordinarily the final execution of the contract is postponed, at the instance of the purchaser, until some day in the future, either that he may have time in which to examine the title or for his convenience and accommodation in respect to the pay- ment of the purchase money. And sometimes performance is post- poned at the instance of the vendor, either because he is not ready to deliver possession or because he desires time in which to remove an objection to the title. Under these circumstances the respective covenants of the parties to pay the purchase money and to execute a conveyance are either mutual, concurrent and dependent, that is, to be performed at one and the same time ; or, independent, in which case full performance by one of the parties may be exacted as a condition precedent to performance by the other. Hence, it follows that whenever, by the terms of the contract, the payment of the purchase money and the conveyance of a good title, are dependent and concurrent acts, the purchaser must pay, or offer to pay, the purchase money in full, demanding at the same time that the vendor shall execute and deliver to him a deed conveying an indefeasible estate in the premises. 1 The vendor must be given an 'Post, 253. Chitty Cont. (10th Am. ed.) 332; 1 Sugd. Vend. (8th Am. ed.) 241; 2 Dart Vend. (4th ed.) 877. Poole v. Hill, 6 M. & W. 835; Baxter v. Lewis, For. Ex. 61; Mattock v. Kinglake, 10 Ad. & El. 50. Clemens v. Loggins, 1 Ala. 622. Smith v. Henry, 2 Eng. (Ark.) 207; 44 Am. Dec. 540; Byers v. Aikin, 5 Ark. 419; Drennere v. Boyer, Ark. 497. Dennis v. Stras- burger, 89 Cal. 583; 26 Pac. Rep. 1070. Poheim v. Myers, 9 Cal. App. 81, 98 Pac. 65; Griesemer v. Hammond, 18 Cal. App. 535; 123 Pac. 818; Ishmael v. Parker, 13 111. 324; Headley v. Shaw, 39 111. 384; Warren v. Richmond, 53 111. 52; Cronk v. Trumble, 66 111. 428. Sheets v. Andrews, 2 Bl. (Ind.) 274; Browning v. Clymer, 1 Ind. 579; Axtel v. Chase, 77 Ind. 74. Stockton v. George, 5 How. (Miss.) L. 172; Johnston v. Beard, 7 Sm. & M. (Miss.) 27 F2091 1>1U MAKKKTABLK TITI.K TO KK.VI, KSTATE. opportunity to perform his contract before be can be put in default, and in an action maintained against bim for breach of tbe contract, or to recover back tbe purcbase money, or to com- ix;! specific ]>erforiiiunce of the contract. The covenants being dependent tbe purchaser must, as a general rule, tender the pur- chase money, whether he wishes to rescind the contract, or to aftirrn it by action to recover damages for the breach. 2 Gen- erally these agreements will be construed to be dependent, unless a contrary intention apj>ears. The question whether they are or are not dependent will be determined by the manifest intention of the parties and not from any particular word or phrase which the contract may contain.* Parol evidence of the surrounding circumstances will be admitted to show whether, at the time of the execution of a written contract for the sale of lands, it was the intention of the parties that the payment of the purchase money on the one part and the execution of a conveyance on the other 217; SUndifer v. David, 12 Sm. & Ml (Miss.) 48; Hudson v. Watson, 26 Miss. 357; Hill v. Samuel. 31 Miss. 307. Hudson v. Swift, 20 Johns. (N. Y.) 23; Raudabaugh v. Hart, fll Ohio St. 73; 55 N. E. 214. Guthrie v. Thompson. 1 Oreg. 353. Baura v. Dubois, 43 Pa. St. 260; Poul^on v. Elli, 60 Pa. St. 134; Irvin v. Bleakley, 67 Pa. St. 24. Shouse v. Doane, 39 Fla. 95; 21 So. 807. A purchaser neeking to enjoin the collection of the purchase money on the ground of defect of title and non-execution of a conveyance, must aver a tender of the purchase money. Harris v. Bolton, 8 Miss. 167. An abandonment of the possession by the purchaser, without a tender of the purchase money, in no defense to an action for the purchase money, demons V. Logging 1 Ala. 622. A purchaser rescinding the contract for defect of title should tender payment and demand a conveyance, or take some other step *ho\vinjr an intention to give up his bargain. Hunter v. Goudy, 1 Ohio, 449. Where a vendor has received the, purchase money, and no time has Ix-en specified in which the deed is to be made, there should !>< a demand for a deed and a refusal to execute it, before a suit to recover back the purchase money can be maintained. McNamara v. Pengilly, 64 Minn. 543; 59 N. W. Rep. 1055. Kime v. Kime, 41 111. 397. Walters v. Miller, 10 Iowa, 427. Where the deed in to be made by executors, no such action van be maintained before tlie exci utors have qualified. Hyde v. Keller, 10 Wash. 5#6; 39 Pac. Rep. 249. The failure of the vendor to tender an abstract of title provided for in the contract, doe* not excuse the vendee, seeking specific performance of the contract, from the duty of making a tender of the purchase money. KeWy v. Crowther, 162 f. S. 404; 16 Sup. Ct. Rep. 808. Inrin v. Bleaklry, 67 Pa. St. 24, 28. Thoroa* v. Walden, 57 Fla. 234, 48 Ho. 746. 'I Hugd. Vend. (8th ed.) 362 (239); Dart's Vend. (Waterman's Notes) 449. Noyen v. Brown, (Minn.) 171 N. W. 802. TENDER OF PERFORMANCE AND DEMAND FOR DEED. 211 were to be mutual and concurrent acts. 4 Where neither the con- tract nor the circumstances of the case show the intention of the parties in this respect, the law implies that payment of the purchase money and delivery of the conveyance shall be concurrent acts. 5 In cases of doubt the agreements will be construed to be dependent. 6 The covenants are not dependent and concurrent where the vendor is not to convey until after the purchase money has been paid. 7 As a general rule, where the contract provides that the vendor will furnish an abstract of title on payment of the balance of the contract price, the tender of the abstract and of the purchase money are dependent and concurrent acts, and both must transpire before either party can be put in default. 8 The mere failure of the vendor to tender a conveyance and demand payment of the purchase money on the day fixed for com- pleting the contract will not excuse a failure of the purchaser to tender performance on his part, unless it also appear that the ven- dor had no title and was unable to convey. The mere neglect of the parties to perform the contract at the appointed time cannot, without anything more, amount to a rescission. 9 If the vendor be absent from his residence or usual place of abode when the pur- phase money becomes due, a tender to some person left in charge there will be sufficient ; a personal tender to the vendor is not abso- lutely necessary. 10 It has also been held that the expression " tender of the purchase money," as used in this connection, does 4 Sewall v. Wilkins, 14 Me. 168. This was an action by the purchaser on a title bond executed by the vendor. Testimony was admitted, over the objection of the plaintiff, to show that he (the plaintiff, purchaser) knew at the time of the purchase that there was a technical objection to the title which could probably not be removed precisely at the time fixed for com- pleting the contract. " The law," said WESTON, C. J., " is well settled that whether the acts to be performed by the parties respectively in a covenant or agreement are to be regarded as mutual, dependent, concurrent or otherwise, is to be determined by their intention, apparent from the written evidence of what has been agreed, in connection with the subject-matter to which it is to be applied." 5 Rushton v. Campbell, 94 Neb. 141, 142 N. W. 902. Ink v. Rohrig, 23 S. D. 548; 122 N. W. 594. T Ward v. James, 84 Oreg. 375, 164 Pac. 370. "Kessler v. Pruitt, 14 Idaho 175, 93 Pac. 965. Townsend v. Tufts, 95 Cal. 257; 30 Pac. Rep. 528. "Smith v. Smith, 25 Wend. (N. Y.) 404. Here a tender to the son of the vendor at her home, she being absent, was held sufficient. 21li MAKKKTABI.F. TITLK TO UKAL KSTATK. not mean such a tender as is required to stop interest on a debt; it means a readiness, willingness and ability to pay, accompanied bv notice thereof to the other party. 11 So, also, tender of perform- ance by the vendor does not mean in every case the actual produc- tion and tender of a deed ; if the purchaser himself does not tender jK'rformanee, it is sufficient for the preservation of the rights of the vendor that he be able and willing to execute, and offers to execute and deliver, such a conveyance as the contract requires. 12 If the pun-baser tenders the purchase money there is no obligation on him to keep the tender good, where the vendor has failed to furnish an abstract of title showing the property free of incum- brances, required by the contract. 11 Tender of the purchase money is not invalidated by being coupled with a demand for performance on the part of the vendor." 87 EXCEPTIONS. The rule which requires a tender of the purchase money and demand of a deed on the part of the pur- chaser docs not apply where the vendor's abstract shows a bad title, 15 or where the inability of the vendor to make a good title " Smith v. Lewi*. 20 Conn. 110. Clark v. Weis, 87 Til. 438; 29 Am. Rep. 60. Hi wtli v. SafFold. 46 Ga. 278. Ludiitti v. Frost, (Cal.) 65 Pao. 969. It -..in- that an averment of ability and willingness to pay on tender of n pood title is HiimVient. Smith v. Holier t MOD. 11 Ala. 840. But see Knplander v. Rofjer*, 41 Cal. 420, where it wan said that the purchaser must prodii^r and ufTer to jmy the purchase money. * Well* v. Day, 124 Mas*. 138. Teal v. I.anpdale, 78 Ind. 330. "HiitrhiiiHon v. Coonley, 209 111. 437; 70 X. E. 680. M Al,ern v. Karrell, 117 N". Y. Supp. 706; 133 App. Div. 278. "Pout, f 194. 1 Supl. Vend. (8th ed.) 367; 2 id. 212; Dart Vend. (Gould 1 * Am. !. 504. 510. Seward v. \V ilk-ode, 5 East, 198; Knight v. Crocked. 1 K*p. 1S9-. Wilmot v. Wilkinson, 6 B. & C. 506. Johnson v. U.llin.., 17 Ala. 318; GarnHt v. Y>. 17 Ala. 74; Bed?ll v. Smith, 37 Ala. 610. Lawranrr v. Taylor, "i Hill (X. Y.) 107: Holmes v. Holmes, 12 Barb. (X. Y.) 137; K.mter v. Herkimer Mfp. Co., 12 Barb. (N. Y.) 352; Spauldinjr v. Fieri*. 86 Hun (X. Y.) 17; Glenn v. Konsler, 88 Hun, (X. Y.) 74; 34 N. Y. Sup]). 608: HiggitM v. Englrton, 155 X. Y. 466; 50 N. K. 287; Hrokaw v. Duffy, 165 X. Y. 391; 59 X. E. 196; Washington v. Mining Co.. (Trx. Civ. App.) 67 S. \V. 459. Omaha v. Omaha Water Co., 192 Fed. 246. 112 C. C. A. 504. English v. Plaster Co., 192 Fed. 717; Lathrop v. Colllrrir* Co.. 70 W. Va. 58. 73 S. K. 299; Wheeling Cr. Gas Co. v. Elder, 54 W. Va. 335, 45 8. E. 3fi7. TENDER OF PERFORMANCE AND DEMAND FOR DEED. 213 is so apparent that a tender and demand would be superfluous; 16 as where the premises have been recovered from the purchaser by one claiming under a paramount title, 17 or under an incum- brance created by the vendor, 18 or where the vendor has conveyed away the premises to a third person ; 19 or where he has executed a declaration that he holds the premises in trust; 20 or where the sale was by agent and the principal has repudiated the contract. 21 If the contract provide that the vendor shall show a good title as a condition precedent to the payment of the purchase money, the purchaser need not tender the purchase money and demand a conveyance before maintaining his action, unless the good title 4 'Magee v. McMillan, 30 Ala. 421; Griggs v. Woodruff, 14 Ala. 9; Smith v. Robertson, 23 Ala. 324. Holmes v. Holmes, 12 Barb. (N. Y.) 137. Blann v. Smith, 4 Bl. (Ind.) 517; Bowen v. Jackson, 8 Bl. (Ind.) 203; Carpenter v. Lockhart, 1 Ind. 434. Edmonds v. Cochran, 12 Iowa, 488; Primm v. Wise (Iowa), 102 N". W. 427. Baynes v. Bernhard, 12 Ga. 150. Reed v. Witcher, 23 Cal. App. 136, 137 Pac. 294; Janulewycz v. Quagliano, 88 Conn. 60, 89 Atl. 897; Sutheff v. Marusca, 57 Wash. 102, 106 Pac. 632; Sachs v. Owings, 121 Va. 162, 92 S. E. 997; Russell v. Crowley, 132 N. Y. Supp. 185, 147 App. Div. 361. "Kerst v. Cinder, 1 Pittsb. (Pa.) 314. ^Buchanan v. Lorman, 3 Gill (Md.), 51. Delavan v. Duncan, 49 N. Y. 485. So, where the premises have been sold under an incumbrance which the vendor engaged to remove. Way v. Raymond, 16 Vt. 371. 19 2 Sugd. Vend. (8th Am. ed.) 212 (516). Post, 253. Sir Anthony Main's Case, 5 Coke's Rep. 211. Wilhelm v. Fimple, 31 Iowa, 131; 7 Am. Rep. 117. Nesbitt v. Miller, 125 Ind. 106; 25 N. E. Rep. 148. Smith v. Rogers, 42 Hun (N. Y.), 110. Baun v. Dubois, 43 Pa. St. 260; Irvin v. Bleakley, 67 Pa. St. 24; Cash v. Meisenheimer, 53 Wash. 576, 102 Pac. 429. In Sons of Temp. v. Brown, 9 Minn. 157, it was held that a tender of the purchase money might be made to the grantee of the vendor, he having notice of the purchaser's rights. In California it has been held in several cases that a conveyance by the vendor to a third person before the day fixed for performance of the contract of sale, does not entitle the purchaser to treat the contract as abandoned or rescinded before the time of performance arrives, the court saying that one may sell land which he does not own, and yet l>e able, when the time of performance arrives to convey a good title. Joyce v. Shafer, 97 Cal. 335; Shively v. Land Co., 99 Cal. 259; 33 Pac. 848; Garberino v. Roberts, 109 Cal. 125; 41 Pac. 857. 20 Seiberling v. Lewis, 93 111. App. 549. 21 Where the sale Is by an agent the purchaser is entitled to a conveyance from the principal, and if the principal refuse to convey the purchaser may recover back the purchase money without making a tender or showing readi- ness to perform the contract. Bell v. Kennedy, 100 Pa. St. 215. 214 MAKKETAHLK TITLE TO HEAL ESTATE. be shown." An apparent contradiction is involved in the two propositions that the purchaser need not tender the purchase money and demand a tleed when the vendor's abstract shows a bad title, and that the vendor is entitled to a reasonable time in which to remove incumbrances and objections to the title, unless the first proposition is strictly limited to those cases in which the defect or incumbrance is incapable of removal, so that a tender would be utterly vain and nugatory. 21 If the purchaser seeks to rescind the contract, or to recover damages against the vendor for non-performance, it seems to be the better opinion that the mere existence of an incumbrance upon the property will not excuse him from performing or tendering ]>erformanee on his part, if the incumbrance can be discharged out of the purchase money. The vendor should be given an opportunity to remove the incumbrance. 24 Hut there are cases in which the contrary view has lieen taken.* 5 If, however, in a case in which the estate is "1 Sugd. Vend. (8th Am. ed.) 363 (239). In Davis v. Real Estate Co., 103 Mo. App. 328, 143 S. W. 1108, it was held that an offer by the pur- chaMT to perform, without tendering the purchase money, is sufficient where the vendor is unable to convey a clear title. n Read v. Walker, 18 Ala. 323, whore it was said that if the vendor has no title, and cannot procure or auute one to be made, the law does not impose on the- purchaser the useless ceremony of preparing and tendering a deed before he can apply 4o a court of equity for a rescission of the contract, since he would not be bound under such circumstances to accept the deed, although the vendor should lie willing to execute it. "Post. I 308. 2 Sup!. Vend. (Sth Am. ed.) 25 (425), where it is said that an incumbrance is no objection to the title if the incumbrancer can be com- pelled to join in the conveyance. In Snyder v. Betker, 159 Mo. App. 325. 140 S. W. 321, it was held thnt an incumbrance of $1,000 and tax-bills on the property, did not relieve the purchaser from the obligation to tender the purchac money. "Morange v. Morris, 34 Barb. (X. V.I 311; affd., 32 How. TV. (X. Y.) 178, where it was MI id to be the duty of the vendor to remove incumbrances Itefore the time fixed for completing the contract. The purchaser was permitted to recover In- depoait and the costs of examining the title. Ilewison v. Hoffman, 4 N*. Y. Supp. 621. It has wince been held in thin Stat<> that tho exintcnce of an incumbrance does not relieve the purchaser from the obliga- tion to tender the purchase money. Ziehen v. Smith, 148 N. Y. 558; 42 N*. E. 1080; Higj-ins v. Knglrton, 155 N'. Y. 466; 50 X. E. 287: Campbell v. I'ruym-, 30 X. Y. Supp. 5.18; fi App. Div. 554; Keitel v. Zimmerman, 43 X. Y. Supp. 070; 10 Misc. 5K1; Marshall v. Weninger, 46 X. Y. Supp. 670; 20 Miw. 527; Minor v. Hilton. 44 X. Y. Supp. 155; 15 App. Div. 56; Daly v. llruen. S| X. Y. Supp. 071: *S App. Div. 263. TENDER OF PERFORMANCE AND DEMAND FOR DEED. 215 incumbered, the purchaser seeks not a rescission, but specific performance of the contract, 26 or if he sues to recover liquidated damages for a breach of the contract, it seems that the purchaser loses no rights by failing to tender performance. 27 No duty devolves upon the purchaser to tender the purchase money and demand a conveyance in a case in which the acts and conduct of the vendor himself show an intent to rescind the contract, 28 e. g., where the vendor has expressly notified the purchaser that he will not execute a conveyance, 29 or receive the purchase money, 30 or has expressly repudiated the contract. 31 But, obviously, this principle does not apply where the vendor, acting in good faith, has declared a forfeiture of the contract by reason of the failure of the purchaser to perform at the appointed time. 32 26 Kerr v. Purdy, 50 Barb. (N. Y.) 24. "Karker v. Haverley, 50 Barb. (N. Y.) 79. In this case the purchaser tendered the cash payment, but refused to execute a bond and purchase- money mortgage for the deferred' payments upon the ground that the prop- erty was incumbered. The vendor then .brought an action to recover $600 liquidated damages. Judgment was rendered for the defendant. See also N. Wyo. Land Co. v. Butler, 252 Fed. 971, 164 C. C. A. 479. 28 Mathison v. Wilsorr, 87 111. 51. Sims v. Boaz, 19 Miss. 318.. Drew v. Pedlar, 87 Cal. 443; 25 Pac. Rep. 749. Buchanan v. Lorman, 3 Gill. (Md.), 51. Thus, where the purchaser had paid part of Ahe purchase money, and a conveyance had been executed in escrow, and afterwards the vendor reclaimed the escrow from the holder and denied the validity of the contract with intent to rescind the same, it was held that the purchaser might recover back the purchase money paid without showing a tender of that which remained unpaid, and demand of the deed. Merrill v. Merrill, 95 Cal. 334; 30 Pac. Rep. 542. 29 Traver v. Halstead, 23 Wend. (N. Y.) 66; Foot v. West, 1 Den. (N. Y.) 544. Remy v. Olds, 88 Cal. 537. Comstock v. Lager, 78 Mo. App. 390; Alpern v. Farrell, 117 N. Y. Supp. 706, 133 App. Div. 278. It has been said that if the vendor denies the obligation of the contract, or places him- self in such a position that it appears that if a tender of the price were made it would be refused, the purchaser need make no tender of payment or demand of a conveyance in order to preserve his rights-. 2 Warvelle Vend. 774, citing, for the first proposition, Brock v. Hidy, 13 Ohio St. 306, and for the second, Deichman v. Deichman, 49 Mo. 107. Brown v. Eaton, 21 Minn. 409. See, also, Quimby v. Lyon, 63 Cal. 394. So, no tender is necessary when the vendor is proceeding on his legal title against the purchaser. Irvin v. Bleakley, 67 Pa. St. 24, 28, dictum. 30 Stone v. Sprague, 20 Barb. (N. Y.) 509; Maupai v. Jackson, 118 N. Y. Supp. 513. 31 Cabrera v. Payne, 10 Cal. App. 675, 103 Pac. 176. 3a Boger v. Bell, 84 Wash. 131, 146 Pac. 179. 216 MAKKE1AHLE TITLE TO KEAL ESTATE. Mere inability of the vendor to make a perfect title will not, under all circumstances, relieve the purchaser of the duty of ten- dering the purchase money and demanding a conveyance, as where the objection to the title is an incumbrance, lien, or charge, that may be removed by application of the purchase money. 83 The time fixed for performance, having passed without an offer by either party to perform, becomes indefinite, and neither party can thereafter put the other in default without an offer to perform. 14 R 88. DUTY OF THE VENDOB TO TENDER PERFORMANCE. If, under the contract, the payment of the purchase money 'and the conveyance of a good title be concurrent and dependent acts, the purchaser may detain the purchase money until such a conveyance i tendered to him, or until the vendor shall show himself ready, able -and willing to execute such a conveyance as the purchaser shall devise. The vendor must fully perform or tender per- formance on his part before he can put the purchaser in default ; M "In Hartley v. James, 50 N. Y. 38, the court said: "Mere defect of title in the vendor and a present inability to give such title as the contract calls for, may not, in all caws, and under all circumstances, dispense with a tender of payment and a demand of a conveyance hy the vendee in order to entitle the latter to maintain an action for the money already paid, or to defend an action for the .purchase money, if the payment becomes daie before a deed. i to-be given by the -terms of the contract. Under some cirmmKtances the court will not hold a contract void by reason of the inability of the, eller to make a perfeng, 32 Barb. (X. Y.) 194; 10 How. Pr. 547. Guthrie v. Thompson, 1 Oregan, 353. Persh- ing v. Canfleld, 70 Mo. 140. 1'ursloy v. Good, 94 Mo. App. 382. Overly v. Tlpton, 88 Ind. 410; Soule v. HoldrSdge, 63 Ind. 213; Melton v. Coffelt, 59 Ind. 310; Parker v. McAllister, 14 Ind. 12. Walters v. Mitchell, 6 Cal. App. 410, 92 Pac. 315; Lemle v. Barry (Cal.) 183 Pac, 148; Booth v. Millikin, 111 X. Y. Supp. 791, 127 App. Div. 522; Kchola v. MiHer, (Tex. Civ. App.) 21S S. W. 48: Kdwards v. Waton, 258 *fo. 631, 167 S. W. 1119; Ogoouhevitz v. Wahija*. 203 Mich. 604, 109 N. W. 820: Osborne v. Falrley, (Ark.) 211 I. \V. 917; MIMW v. King, 180 Ala. 475. 05 So. 180; Robinson v. Yetter, 238 HI. 320. 7 X. K. 363; Adlcr v. Kohn. 96 Neb. 346, 147 N. W. 1131; Brown v. l*v, 102 Fed. 817, 113 C. C. A. 141. TENDER OF PERFORMANCE AND DEMAND FOR DEED. 217 his mere readiness, willingness, or ability to perform are insuf- ficient without a tender of performance by him. 36 If the con- tract provide that the purchase money shall not be paid until the title has been perfected to the satisfaction of the purchaser, the vendor cannot put the latter in default until he is able to execute a deed conveying a perfect title, and has advised him of the fact. 37 Payment by the purchaser and conveyance by the vendor may be dependent and concurrent acts, though the contract pro- vides that " If the purchaser shall first make payment, the vendor will convey," etc. 38 The rule that the vendor must tender per- formance in order to put the purchaser in default does not apply In Stingle v. Hawkins, 8 Blackf. (Ind.) 435, a vendor executed a title bond conditioned to make a deed on the payment of certain notes for the pur- chase money, payable two years after date, and it was held that a suit on the notes would not lie until the vendor had offered to make a deed, or had shown a sufficient reason for not doing so. Citing Leonard v. Bates, 1 Blackf. (Ind.) 172; Owen v. Norris, 5 id. 479; Burrows v. Yount, 6 id. 458; 39 Am. Dec. 439. It has been held in California that the vendor's tender of the deed of a third party conveying a perfect title to the purchaser, is a sufficient performance by the vendor, unless the purchaser then and there specifically objects that the conveyance is not by the vendor himself. The purchaser must make the specific objection in order that the vendor may have an opportunity to procure a conveyance to himself from the third party. Unless specifically made the objection will be deemed to have been waived. Royal v. Dennison, 109 Cal. 558-; 42 Pac. 39. In Southern Pac. R. Co. v. Allen, 112 Cal. 455; 44 Pac. 796, the contract provided that the purchase money should be paid on or before a certain day, and that the vendor, a railroad company, should convey upon its receipt of a patent for the land, or refund the purchase money in case it should be finally determined that no patent should issue. It was held that the argu- ments to pay the purchase money and to execute a conveyance were not mutual and that the railroad company might maintain an action for the balance of the purchase money without tendering a conveyance, no patent having yet been issued to the company. Vendor, being unable to furnish insurance of the title on the " law day " pursuant to agreement, purchaser may rescind. Drake v. Gaffney, 171 N. Y. Supp. 131 ; 183 App. Div. 577. An agreement by the purchaser to pay the installments of the purchase money at specified times, provided the vendor furnishes him within 90 days an abstract showing a good merchantable title to the premises, is a condition precedent rather than a condition concurrent, and the purchaser is entitled to rescind and recover his deposit, unless the abstract showing such title is furnished in the specified time. Kennedy v. Dennstadt, 31 N. D. 422; 154 N. W. 271. 39 Rasst v. Morris, (Md.) 108 Atl. 787. 37 Kirkland v. Little, 41 Tex. 456. 38 Ink v. Rohrig, 23 S. D. 548, 122 N. W. 594. 28 218 MARKETABLE TITLE TO KEAL ESTATE. if the latter has given notice that he will be unable to pay the purchase money, even though the abstract furnished by the vendor showed an objection to the title. The vendor is under no obliga- tion to remove or offer to remove the objection when the pur- chaser declares his own inability to complete the contract. 39 Nor where the purchaser declares that he will not carry out the con- tract. 10 Xor where the contract provides for payment of an installment of the purchase money before the time fixed for the execution and delivery of the deed. 41 Nor where the purchaser has failed to perform on his part what he was required by the con- tract to do before he could demand performance by the vendor. The general rule is that if either party renounce the contract, tender of performance by the other is unnecessary; but in order to recover damages for the breach such other party must show his ability to perform. 48 If the purchase money is payable in installments, and the purchaser is not to receive a deed until the last installment is paid, the covenants are independent, except as to the last installment, 44 and the weight of authority seems to "Johnston v. Johnston. 43 Minn. 6; 44 N. W. Rep. 668. Sweitzer v. Hummel. 3 Serp. & R. (Pa.) 228; Hampton v. Specknagle, 9 Serg. & R. (Pa.) 22; 11 Am. Dec. 704. Bucklen v. Hasterlik, 155 111. 423; 41 N". E, Rep. 561. Gray v. Mills, 83 Fed. 824; Blanton v. Ky. Distilleries Co. 120 Fed. 318. Bowereock v. Beers, 82 111. 396. Armstrong v. Dunn, 163 Mo. App. 701. 147 S. W. 509; Garibaldi Realty Co. v. Santangelo, 149 N. Y. Supp. 669, 164 App. Div. 513; Wolford v. Jaclreon, 123 Va. 280, 96 S. K. 237; Armstrong v. Palmer, (Tex. Civ. App.) 218 S. W. 627; Milton v. Crawford, 65 Wash. 145; 118 Pac. 32; Boyd v. Hoffman, 241 Pa. 421; 88 All. 675. Strauwi v. Yeager, 48 Ind. App. 448, 93 N. E. 877. Lang v. Hetk'nberg, 277 111. 368, 115 N. E. 566. Doeh v. Andus, 111 Minn. 287, 126 N. W. 1071. "Port, | 208. Terry v. George, 37 Mine. 539. Kane v. Hood, 13 Pick. (Mass.) 281, the court saying: "Where the whole purchase money is to be paid at once, and the deed is to be then given, the covenants are held to be dependent, because it i unreasonable to presume that the purchaser intended to pay the whole consideration without having the equivalent in a title to the land purchased. The same reason applies to the laat installment." Mc.Leod v. Sn vder. (Mo.) 19 S. W. Rep. 494. If suit be delayed until all the install- ment* become due, then the, covenant* to pay and to make title becom* .!. jx-ndent. Johnson v. Wygant, 11 Wend. (N T . Y.) 48. Compare Bogi-r v. H.-11, 84 Wash. 131, 146 Pac. 179, where held that the vendor does not waive hi* right to declare a forfeiture of the contract by extending, for a definite period, the time for payment of an installment of the purchase money and allowing a fair opportunity thereafter to make the payment. TENDER OF PERFORMANCE AND DEMAND FOR DEED. 219 establish the rule that the purchaser cannot decline to pay one of the intermediate installments upon the ground that the vendor has no title, for non constat, but that he may acquire or perfect the title before the last installment becomes due. 45 It has been held that the rule that the vendor must tender a conveyance before he can enforce the payment of the purchase money, does not apply to a proceeding in equity to collect the purchase money. The reason stated for this exception is that the rights of the purchaser may be protected upon final decree in the cause. 46 The vendor is not bound to tender a deed to a sub-purchaser; it is sufficient if he make tender to the original purchaser. He cannot be required to hunt up the assignees of the purchaser. 47 Although the vendor is entitled to a judgment for the purchase money without tender of a deed by him, where, by the contract, payment of the purchase money is made a condition precedent to performance by him, the court should stay the enforcement of the judgment until he deposits in court for delivery to the pur- chaser, the deed required by the contract. 48 It has been held that it is not necessary that the vendor shall have the legal title at the time fixed for the performance of the contract if he can control it and have it conveyed to the purchaser on payment of the purchase money. 49 This may be true where the 45 Post, 253. Kane v. Hood, 13 Pick. (Mass.) 281. Duncan v. Charles, 4 Scam. (111.) 561; Runkle v. Johnson, 30 111. 328; Monson v. Stevens, 56 111. 335. Johnson v. Wygant, 11 Wend. (N. Y.) 50, semble; Harrington v. Higgins, 17 Wend. (X. Y.) 376. Lockwoodi v. Hannibal & St. J. R. Co., 65 Mo. 233; Smith v. Busby, 15 Mo. 387; 57 Am. Dec. 207. Oakes v. Buckley, 49 Wis. 592. Loveridge v. Coles, 72 Minn. 57; 74 N. W. 1109. Real Est. Co. v. Walkup, 27 Cal. App. 441, 150 Pac. 385; Hawkins v. Rogers, (Oreg.) 179 Pac. 563; Shepman Mtge. Co. v. Sussman, 131 N. Y. Supp. 645, 147 App. Div. 25. The installment contract should not be so construed as to allow the vendor an unreasonable time in which to tender the deed. Thomas v. Seaman, 275 111. 267, 114 N. E. 40. 44 Rutherford v. Haven, 11 Iowa, 587; Winton v. Sherman, 20 Iowa, 295. The same rule seems to prevail in Texas ; Bridge v. Young, 9 Tex. 401 ; Lawrence v. Simonton, 13 Tex. 220; Taylor v. Johnston, 19 Tex. 351. 47 Heidenberg v. Jones, V3 111. 149. ^Noyes v. Brown, (Minn.) 171 1ST. W. 802. 49 Hazelton v. Le Due, 10 App. D. C. 379, citing Dresel v. Jordan, 104 Mass. 415 and Flannigan v. Fox, 23 N. Y. Supp. 344; 26 Id. 48; 6 Misc. 132. In the first two of these cases the sale was made by parties acting in a representative capacity. MAKKKTAULK TITLE TO KKAL ESTATE. sale was made by an executor or trustee, or other person acting in a representative character, from whom covenants of title cannot be required, who tenders a deed executed by the party whom he represents, containing the proper covenants. But it can hardly IM; contended that a purchaser from a solvent and responsible party may be compelled to accept a conveyance from a stranger, whose covenants for title may be worthless. 50 Where the contract provided that the vendor, its successors or assigns, would convey by special warranty deed, the tender of such a deed executed by a grantee of the vendor was held to be sufficient. 61 In the American States," with but few exceptions," it is the duty of the vendor to prepare and pay for the conveyance and have it in readiness for delivery when demanded by the purchaser. In the English practice, the purchaser prepares the conveyance and tenders it to the vendor with the purchase money. 54 The American rule, as generally expressed, is that, to put the vendor in default, it is necessary that the vendee should demand a deed, wait a reasonable time for the vendor to get it drawn, and then present himself to receive it. 65 Of course, the parties may contract that "Ante. | 18: post, ft 315. " Herrick Imp. Co. v. Kelly, 65 Wash. 18, 117 Pac. 705, distinguishing Got tw balk v. Meisenheimer, 2 Wash. 299, 113 Pac. 765. "Taylor v. Longworth. 14 Pet. (I*. S.) 175. Stone v. Lord, 80 N. Y. 60. Seeley v. Howard. 13 Win. 33; Dye v. Montague, 10 Wis. 16. Hill V. Iloltart. 1(5 Mr. 104. Kspecially if the contract provide* that the vendor shall "make and execute a deed." Walling v. Kinnaird, 10 Tex. 508; 60 Am. Dec. 210. Fairfax v. Ixwis, 2 Rand. (Va.) 20. Standifer v. Davis, 13 Sm. & M. (Mis*.) 549 Son* of Temp. v. Brown, 9 Minn. 157. Baston v. Clifford, 08 III. 07; 18 Am. Rep. 547. The purchaser is not obliged to pre- pare ami tender a deed, mile-* such an obligation can l>e fairly inferred from the oontraot. IliickmaHter v. Crunch. 1 Scam. (111.) 310; Headley v. Shaw, 30 III. 354. It in only necessary that the purchaser shall allege that he demanded a deed ; he need not allege that he prepared it and presented it fir execution. Standifer v. Davis, 13 Sm. 4 M. (Miss.) 548. "Ilyern v. Aiken, 5 Pike (Ark.). 419, 49". But sec Arledgc v. Brooks, 22 Ark. 427. In Alabama, the Ktifilinh rule that the purchaser must prepare the conveyance and tender it to the vendor to be executed, has l>een held to prevail. Wade v. Killough, 5 Stew. & P. (Ala.) 450; Chapman v. Lee, M Ala. 618. "I Sugtl. Vend. (8th Am. ed.) 366 (241). "Fuller v. Ilubburd. Cow. (N. Y.) 13; 16 Am. Dec. 423; Hackett v. Hiiftun. 3 Wend. (N. Y.) 250. Dye v. Montague, 10 Wis. 15. TENDER OF PERFORMANCE AND DEMAND FOR DEED. 221 the purchaser shall prepare and tender the deed for execution. 56 It has been held that a personal representative of an assignee of the vendor, having no connection with the contract and no act to perform in respect to it, need not tender a conveyance as a condi- tion precedent to the enforcement of a vendor's lien on the prop- erty. 57 But it was held in the same case that the court would not direct a sale of the land, unless the purchaser put himself in default by declining to pay the purchase money. There are cases which hold that to put the vendor in default, the purchaser must demand the deed, wait a reasonable time for the vendor to have it drawn, and again present himself and make a second demand ; 58 the purchaser being at liberty, however, to obvU ate the necessity of a second demand, by himself preparing and tendering the deed. 59 'But the better opinion seems to be that it is the duty of the vendor to prepare the deed and have it in readi- ness for delivery at the time appointed for the completion of the contract, and that a demand for the deed at that time is sufficient to put him in default. 60 Where the contract fixes no time for performance, the vendor is not bound to convey the instant the purchase money is paid ; he is entitled to a reasonable time in which to perform. 61 The purchaser, by demanding execution of a full covenant war- ranty deed and the production of evidence that the property is free from incumbrances, when he is not entitled by the contract to make such demands, thereby waives the tender of such deed as he is entitled to under the contract. 62 58 Tinney v. Ashley, 14 Pick. (Mass.) 546; 26 Am. Dec. 620. As where the contract provides that the vendor shall execute such conveyances as the purchaser shall devise. Sweitzer v. Hummel, 3 Serg. & R. (Pa.) 228. 57 Mhoon v. Wilkinson, 47 Miss. 633. cs Fuller v. Hubbard, 6 Cow. (X. Y.) 13; 16 Am. Dec. 423; Fuller v. Wil- liams, 7 Cow. (X. Y.) 53; 17 Am. Dec. 498; Hackett v. Huson, 3 Wend. (X. Y.) 250; Connelly v. Pierce, 7 Wend. (X. Y.) 129; Lutweller v. Linnell, 12 Barb. (X. Y.) 512; Pearsoll v. Frazer, 14 Barb. (X. Y.) 564. Johnston v. Beard, 7 Sm. & M. (Miss.) 214; Hudson v. Watson, 26 Miss. 357. 59 Connolly v. Pierce, 7 Wend. (X. Y.) 129, 132; Wells v. Smith, 2 Edw. (X. Y.) 7'S; Foote v. West, 1 Den. (X. Y.) 544; Camp v. Morse, 5 Den. (X. Y.) 164. 60 Carpenter v. Brown, 6 Barb. (X. Y.) 147. "MeCloat v. Floral Park Co., 165 X. Y. Supp. 55, 177 App. Div. 865. 62 Palmer v. Hudson Val. R. R. Co., 118 X. Y. Supp. 710; 134 App. Div. 42. 2*22 MAUKKTAULK TITLK TO KKAL ESTATE. The tender must In 1 made at the residence of the vendee, or other place socially agreed upon. A tender made to the vendee's attorney is insufficient." 89. PLEADINGS. As a general rule, in any case in which the purchaser seeks to avail himself of his right of action against the vendor for non-performance of the contract, when the payment of the purchase money on the one part, and the conveyance of a good title on the other, are dependent and concurrent acts, he must, ill his pleadings, aver an actual performance or tender of perform- ance on his own part,* 4 or aver a present willingness and ability to perform,* 5 or set out facts which excuse his own non-perform- ance, such as absolute want of title in the vendor, or that the vendor had notified him that he would not or could not complete the contract." Wherever it is necessary that the purchaser shall have tendered a conveyance and the purchase money as a condition precedent to his right to rescind the contract, or to recover dam- ages for the breach thereof, he must, in any pleading in which he asserts those rights, aver the performance of such condition, or the pleading will be fatally defective. 17 Harrow v. Cornell, 51 N. Y. Supp. 828. The vendor does not tender performance by depositing the deed with a bank not designated in the con- tract. Tucker v. Thraves. 50 Okl. 091, 151 Pac. 598. Clark v. Locke, 11 Hump. (Tenn.) 300. Grace v. Regal, 11 S. & R. (Pa.) 351. Smith v. Robertson, 1 1 Ala. 840. "Son* of Temp, v. Brown, 9 Minn. 157. "Jnhnwton v. Beard, 15 Miss. 214. In Goodwin v. Morey, 111 Ind, 69, it wa* hrld that the vendor, Keeking to enforce the contract, must aver the tender of a *ufficient warranty deed, and must keep the tender good by bring- ing the deed into court, or by an averment of readiness and willingness to execute a deed that will vest a perfect title in the purchaser. He must allege and prove that he wa* able to convey a good title to the purchaser at the time fixed for performance of the contract. Armstrong v. Dunn, 103 Mo. App. 701, 147 S. W. 509. CHAPTER X. MEASURE OF DAMAGES FOR INABILITY TO CONVEY A GOOD TITLE. GENERAL OBSERVATIONS. 90. WHEBE THE VENDOR ACTS IN GOOD FAITH. Flureau v. Thornhill. Hopkins v. Lee. 91. Barter contracts. 92. Expenses of examining the title. 93. Interest. 94. Rents and profits. 95. Improvements. 96. WHERE THE VENDOR ACTS IN BAD FAITH. 97. WHERE THE VENDOR EXPECTS TO OBTAIN THE TITLE 98. WHERE THE VENDOR REFUSES TO PERFECT THE TITLE. 99. LIQUIDATED DAMAGES 100. g 90. GENERAL OBSERVATIONS. Damages for breach of a con- tract for the sale of lands by the vendor are either, (1) reim- bursement for such part of the purchase money as has been paid, with interest, costs, expenses of examining the title, etc., or (2), reimbursement in these particulars, and, in addition, the difference between the value of the land at the time the contract was made measured by the purchase price, and the fair market value of the land at the time of the breach; in other words, damages to the purchaser for the loss of his bargain. 1 Profits which the purchaser might have made by a resale of the land under a contract existing at the time of his purchase cannot be allowed as damages, unless, perhaps, the vendor had notice of such contract at the time of the sale. 2 Nor can the purchaser include in his esti- mate of damages profits anticipated from the prosecution of his l The purchaser's measure of damages for the loss of his bargain will gen- erally be the difference between the contract price and the enhanced value of the land when the conveyance should have been made. 2 Dart. V. & P. (4th Eng. ed.) 872; 3 Sedg. Dam. (8th ed.) 1018. Engel v. Fitch, L. R., 3 Q. B. 314. Hopkins v. Lee, 6 Wh. (U. S.) 109. Baldwin v. Munn, 2 Wend. (N. Y.) 399; 20 Am. Dec. 627; Driggs v. Dwight, 17 Wend. (N. Y.) 71; 31 Am. Dec. 283; Fletcher v. Button, 6 Barb. (N. Y.) 647; Brinckerhoff v. Phelps, 43 Barb. (N. Y.) 469; Pr ingle v. Spaulding, 53 Barb. (N. Y.) 17. Bitner v. Brough, 11 Pa. St. 127; Meason v. Kaine, 67 Pa. St. 132. "Sanderlin v. Willis, 94 Ga. 171; 21 S. E. Rep. 291. [223] '2'24 MAKKKTAHI.K TIT1.K TO KKAI. ESTATE. business on the premises which should have been conveyed to him. Such damages are too remote, and are, besides, speculative and incapable of ascertainment. 8 The question whether the purchaser is entitled to nominal or substantial damages for breach of the contract usually arises under the one or the other of the following circumstances: (1) Where the vendor acts in good faith, believing that his title is free from objection. (2) Where the vendor acts in bad faith knowing that he has no title and no prosjKTt. of acquiring it. (3) Where, having no title, the vendor expects to acquire it in time to complete the contract. (4) Where the title is defective or the estate incumbered, and the vendor has the jxnver to cure the defect or remove the incum- brance, but neglects or refuses to do so. It need hardly be said that the purchaser may always recover for the loss of his bargain wherever the vendor, having a good title, [MTversely and wrongfully refuses to convey, 4 or puts it out of his power to perform the contract by conveying to a stranger without notice of the purchaser's rights. 6 Were the rule otherwise, the vendor might in ever}' case in which the land had enhanced in value before the time fixed for making the conveyance sell to a third jxTson, return the purchase price to the first purchaser, and jmt in his own pockets the difference between the two values. I'ut if the vendor abandon the contract and the purchaser acquiesces in the vendor's attempt to rescind, instead of demand- Greene v. Williams, 45 111. 206; Hines v. Richtcr, 51 111. 299. These were both ca*e* in which the vendor refused, without sufficient cause, to perform hit* contract. A fortiori would the rule apply where he was prevented from performing the contract hy an unimpeded defect of title. 4 3 Sedg. I>am. (th ed.) 5 1006. Baldwin v. Munn, 2 Wend. (N. Y.) 399; 80 Am. Dec. 627; Brinckerhoff v. Phelps, 24 Barb. (N T . Y.) 100; S. C., 43 Barb. (X. Y.) 469. Rowland v. Dowe, 2 Murph. (N. C.) 347; Lee v. Rutwell, 8 Irwl. Kq. 526. Mullen v. Cook, 09 W. Va. 456, 71 S. E. 566. But if the contract were not in writing, the purchaser can recover only what he ha* ili-l.iii !. He can have nothing under the contract, that being void. Welch r. Lawmin, 32 MUm. 170. Rineer v. Colling 156 Pa. St. 342. 3 Sedg. Dmm. 1*3. Dunlin v. Newcomer, 8 Ohio, 49. Wilson v. Spenser, II Leigh (Va.), 261. (lerault v. Anderson, 2 Bibb (Ky.), 643. Sweem v. Steele. 5 Iowa. 352. Case v. Wolcott, 33 Ind. 5. Phillips v. Ilcrndon, 78 Tex. 378. MEASURE OF DAMAGES ; INABILITY TO CONVEY GOOD TITLE. 225 ing a deed and standing upon the contract, lie can recover only the purchase money and interest. 6 | 91. WHERE THE VENDOR ACTS IN GOOD FAITH. Flureau v. Thornhill. Hopkins v. Lee. As a general rule a vendor of property, whether real or personal, who, from whatever cause, fails to perform his contract, is bound to place the purchaser, so far as money will do it, in the position he would have been in if the contract had been performed. Ordinarily the motives and purposes of either party in entering into the contract, or the intent of either to abandon or to perform it, are irrelevant to the question of what measure of damages shall be awarded in case of a breach. 7 An exception to this rule has been held to exist wherever the vendor of real property is unable to convey a good title, if he in good faith entered into the contract believing that his title was good. 8 The leading case upon this point in England is Flureau v. Thornhill, 9 Sir William Blackstoiie being one of the judges who 6 Fowler v. Johnson, 19 Ind. 207. 7 CocKBUBisr, L. C. J., in Engel v. Fitch, L. B.., 4 Q. B. 659. 3 Sedg. Dam. 180, 181. 8 1 Sugd. Vend. (8th Am. ed.) 537; Chitty Cont. (10th Am. ed.) 338; 2 Dart V. & P. (4th Eng. ed.) 873; 2 Sutherland Dam. 207, 208; 2 Add. Cont. (8th ed.) 401 (901). Flureau v. Thornhill, 2 W. Bl. 1078 (1776) ; Clare v. Maynard, 6 Ad. & El. 519; Buckley v. Dawson, 5 Ir. C. L. R. 211; Simons v. Patchett, 7 E. & B. 568. Pounsett v. Fuller, 17 C. B. 660; Lock v. Furze, L. R, 1 C. P. 453, obiter. Walker v. Moore, 10 Barn. & C. 416; S. C., 21 E. C. L. R. 179, was a strong case. The vendor acting bona fide delivered an abstract showing a good title, and the purchaser, before verifying the abstract, resold the property in several portions- to sub-purchasers at a large profit ( 1,500). Afterwards, on comparing the abstract with the original deeds, the title was found to be defective, in consequence of which the sub-pur- chasers refused to complete the contract. The purchaser claimed damages for the profits which he would have realized from the resale, but it was held that he could recover only the expenses incurred by him in examining the title, and nominal damages for the -breach of contract. 9 2 W. Bl. 1078. Flureau bought at auction a rent of 26, 1, 0. per annum for a term of thirty-two years. It was knocked down to him at 270 and lie paid 54 as a deposit. On looking into the title it was found to be bad, and the vendor proposed to the purchaser to take* the title, such as it was, or receive back his deposit, with interest and costs ; but the purchaser insisted on a further sum for damages in the loss of so good a bargain. The jury, contrary to the direction of the judge, gave a verdict for the deposit and 20 damages. On a motion for a new trial DEGREY, C. J., said: "I think the verdict wrong in point of law. Upon a contract for a purchase, if the 29 22(5 MAHKKTAlll.K TIT1.K To KM A I. KSTATE. delivered opinions in that case. Some dissatisfaction with this decision has been expressed in several English eases, 10 but it is now regarded there as settled law." In the American States it is believed that the weight of authority inclines to the same rule, namely, that the purchaser can have no damages for the loss of his bargain if the vendor sold in good faith, believing that his title was good, 12 but in many of the States the opposite rule pre- title proves bad, and the vendor is (without fraud) incapable of making a good one, I do not think that the purchaser can be entitled to any damages for the fancied goodness of the bargain which he supposes he lost." The new trial was granted. "Engel v. Fitch, 10 B. & S. 738; S. C., L. R., 4 Q. B. 659. "Sikw v. Wild, 1 B. & S. 587; Bain v. Fothergill, L. R., 7 H. L. 158; Row* V. School Board, 36 Ch. D. 619. * Sutherland Dam. 217. Letcher v. Woodeon, 1 Brook. (U. S.) 212, per MARSHALL, C. .1. Blackwell v. Lawrence County, 2 Bl. (Ind.) 143; Sheets v. Andrews, 2 Bl. (Ind.) 274; Adamson v. Rose, 30 Ind. 380; Junk v. Barnard, 99 Ind. 137; Puterbaugh v. Futerhaiigh, 7 Ind. App. 280, obiter; S. C., 34 X. E. Rep. 611. SVeem v. Steele, 5 Iowa, 352; Foley v. Keegan, 4 Iowa, 1: 66 Am. Dec. 107. Cornell v. Rodabaugh, 117 Iowa, 287; 90 N. W. 599. Lister v. Batson, 6 Kan*. 412. scmble. Rutledge v. Lawrence, 1 A. K. Marsh. (Ky.) 397; Allen v. Anderson, 2 Bibb (Ky.) 415; Cox v. Strode, 2 Bibb (Ky.), 275; 5 Am. Dec. 603; Herndon v. Venablc. 7 Dana (Ky.) 371; Combs v. Tarlton. 2 Dana (Ky.) 464; Goff v. Hawkes, 5 J. J. Marsh. (Ky.) 341. (But see Jenkins v. Hamilton, 153 Ky. 163, 154 S. W. 937.) Baltimore P. B. & L. Soo. v. Smith, 54 Md. IS"; 30 Am. Hep. 374, distinguishing the early cases of Cy law he might be bankrupted by his inability, from unfore- seen causes, to make title under such circumstances. 16 3. The rule prevails everywhere, except in several of the New England States, that upon a breach of the covenants of seisin and of warranty, the covenantee's damages shall be measured by the consideration money, interest and expenses, and not by the value of the premises at the time of the eviction of the covenantee. 17 . It has been held that, in this respect, an executory contract is not distin- guishable from one that has been executed, and that in either case the measure of damages is the same. It would be an anomaly if the vendor could relieve himself from liability for the increased value of the premises by simply executing a conveyance to the pur- chaser with a covenant of warranty. 18 The fact that the land has SUTHERLAND, J., in Baldwin v. Munn, 2 Wend. (X. Y.) 399; 20 Am. Dec. 627, adopting the reasoning of KENT, Ch., in Staats v. TenEyck, 3 Caines (N. Y. ), 115; 2 Am. Dec. 254, where the contract had .been executed by a con- veyance, with covenants for title. 17 Post, 164. "Peters v. McKeon, 4 Den. (N. Y.) 546. Drake v. Baker, 34 N. J. L. 358, 360. Dumars v. Miller, 34 Pa, St. 319. Allen v. Anderson, 2 Bibb (Ky.), 415. Blackwell v. Laurence County, 2 Bl. (Ind.) 143; Sheets v. Andrews, 2 Bl. (Ind.) 274. Threlkeld v. Fitzhugh, 3 Leigh (Va.), 459; 44 Am. Dec. 384; Stout v. Jackson, 2 Rand. (Va.) 132. Baker v. Corbett, 28 Iowa, 317. Hammond v. Hannin, 21 Mich. 373, 388; 4 Am. Rep. 490, COOLEY, J., saying: " One very strong reason for limiting the recovery to the consideration money and interest in cases free from bad faith is, that the measure of damages is thus made to conform to the rule where the party assumes to convey land which he does not own, and an action is brought against him on the covenants of title contained in his deed. This reason is made specially prominent in many of the cases, and it cannot be denied that it is an anomaly, if the vendee is restricted to the recovery of one sum when an ineffectual deed is given, but allowed to recover a larger compensation in case the vendor, when he discovers the dfefect in his title, has the manliness to inform the vendee of the fact, and to decline to execute worthless papers. Had H. (the vendor) executed and delivered a deed when it was called for, the present controversy could not have arisen, and his failure to do so, which worked no additional wrong to the vendee, is the only ground upon which the plaintiff can claim to retain the large damages which were awarded her in the present case. So long as the rule stands which thus limits the damages in suits upon the covenants of title, so long ought we, also, I think, to adhere to the decisions which restrict the recovery, as above stated, in actions upon contracts to convey." In Connell v. McLean, 6 Harr. & J. (Md.) 29Z, 30 1, there is an attempt to show that the rule should >be different where the contract is executory. It will be found, on examination of the American cases fixing 230 MARKETABLE TITLE TO REAL ESTATE. greatly depreciated in value before the time fixed for completing the contract will not affect the right of the purchaser to recover back the purchase money as damages. 19 The case of Hopkins v. Lee M has been frequently cited in support of the proposition that a purchaser of lands is entitled to damages for the loss of his bargain, without regard to the ability or inability of the vendor to make a title. But the facts in that case clearly distinguish it from one in which an innocent vendor sells in the belief that his title is good. The vendor refused to convey on the ground that the purchaser had not discharged an incumbrance on* certain premises which had been taken by the vendor in exchange for those which he was to convey but the evidence showed that the incumbrance had been discharged, so that the real question in the case was, what measure of damages shall be awarded against a vendor who refuses to convey, leaving untouched the question of the plaintiff's measure of damages, for a breach of the covenant of warranty, that many of them are rested on the case of Flureau v. Thornhill, 2 W. Bl. H>7>\ which, as we have seen, was an action for the breach of an executory contract to convey a good title, and on cases which follow that decision, thus assuming that whether the contract be executory or executed, the measure of damages, in case of a breach, is the same. It is a curious fact that in one State, where the damages for a breach of the covenant of warranty are measured by the value of the premises at tin- time of the breach, damages for the breach of an executory contract from want of title are fixed at the consideration money and interest (Sautters v. Victory, 35 Vt. 351), while in another State, where the consideration money and interest is the measure of damages for the breach of a covenant of warranty, the purchaser is hld entitled to damages for the loss of his bargain on failure of the title where the contract is executory. Connell v. McLean. 6 Harr. & J. (Md.) 207. In either case, a distinction is drawn IM-I wern executed ami executory contracts as respects the rule of damages, but with directly oppoftite results. Apparently, the only practical diffci lie t wwn the two species of contract with respect to the rule of damages, i* that executory contracts have usually only a short time to run, while a covenant of warranty is of indefinite duration, and the vendor might fairly be presumed to take the risk of an increase in value during a short period, where he \\oiflil perhaps le unwilling to assume the risk of a great increase in value during a |>crio70, there ia, however, a dictum that in cases of barter contracts, the value of the land (which should have been conveyed) at the time of the breach is from necessity the measure of damages. Citing Brigham v. Evans, 113 Mass. 538, a case which, it seem-. decides no more than that the plaintiff shall not lose the benefit of his bargain became the property he was -to give in even exchange was, at the time of the contract, much less in value than that which he was to receive. There had been no appreciable change in the values of the respective pieces of property at the time of the breach. "Wells v. Abernethy, 5 Conn. 222. "Devin v. Himcr, 29 Iowa, 297. Biercr v. Fretz, 32 Kana. 329. Greenwood V. Hoyt, 41 Minn. 381. n Fagen v. Davison, 2 Duer (N. Y.), 163. It is to be observed that in this case the difference in value Iwtween the two pieces of property existed at the time of tin- i-.-iitnn-t. N'o question was raised as to any increase in value at the time of the breach of the contract. MEASURE OF DAMAGES ; INABILITY TO CONVEY GOOD TITLE. 233 the consideration of a contract to convey land be the performance of a certain act by the purchaser, but before such performance the vendor give notice of his inability to convey and his intent to rescind, the purchaser cannot, upon full performance on his part thereafter, recover the value of the land as damages. He can recover only whatever actual damages he has sustained. 28 93. Expenses of examining the title. Other expenses. As a general rule the purchaser, on failure of the title, may recover as damages, in addition to such part of the purchase money as has been paid, the expenses incurred by him in examining the title. 29 If the vendor is innocently mistaken as to the goodness of his title, and the contract contains no warranty of ownership, express or implied, it has been held that the purchaser cannot recover such expenses. 30 But the mere fact that the parties were aware, at the time of the contract, that the vendor did not have the title, will not deprive the purchaser of the right to recover the expenses of examining the title, if the parties believed that the vendor 28 Rohr v. Kindt, 3 W. & S. (Pa.) 563; 39 Am. Dec. 53. Here the con- sideration of the contract of sale was that the purchaser should withdraw a caveat against the probate of a certain will in which the vendor was the principal devisee. The vendor refused to convey on the ground, among others, that she had only a life estate, and the court held that the purchaser was not entitled to the fee simple value of the land (ten acres) as damages, but only such damages as he had actually sustained. 28 Post, 243. 1 Sugd. Vend. (8th Am. ed.) 547; 2 Sutherland Dam. 22; 3 Sedg. Dam. (8th ed.) 1017. Canfield v. Gilbert, 4 Esp. 221; Kirtland v. Pounsett, 2 Taunt. 145. (But see Wilder v. Fort, 4 Taunt. 334.) Bigler v. Morgan, 77 N. Y. 312; Cockroft v. N". Y. & Hud. R. R. Co., 69 N. Y. 201. Drake v. Gaffney, 171 N. Y. Supp. 131, 183 App Div. 577. Lee v. Dean, 3 Whart. (Pa.) 316. Bitner v. Brough, 11 Pa. St. 127. Northridge v. Moore, 118 N. Y. 422; 23 N". E. Rep. 570, where BRADLEY, J., delivering the opinion of the court, said: "The vendee is not required to take anything less than a good marketable title, and the precautionary means of ascertaining about it by examination before parting with the purchase money and accepting a conveyance, are properly made available by way of protection, and* unless an understanding in some manner appear to the contrary, the examination of the title by the vendee and the reasonable expense of making it, may be regarded as in the contemplation of the parties, and treated as properly incidental to the contractual situation, and, consequently, the amount of such expense may, in the event of failure of the vendor to convey, be deemed special damages resulting from the breach, and recoverable as sudi. Day v. Nason, 100 N. Y. 166; 2 N. E. Rep. 382. 30 234 MARKETABLE TITLE TO HEAL ESTATE. would acquire title before the time stipulated for the conveyance. 81 Of course, if the purchaser agreed to take the title, such as it might be, he could not recover the expenses of an examination. Where the purchaser resold the property before he had examined the title, the court refused to include in his damages, on failure of the title, the sums in which he was liable to his vendees for expenses incurred by them in examining the title." Nor can he recover the costs of other litigation between himself and the vendor growing out of the contract, such as an unsuccessful suit by the latter for specific performance. By analogy to the rule which prevails in an action for breach of a covenant of warranty, it would seem that the purchaser could recover costs and expenses incurred by him in defending the title against an adverse claimant, provided the vendor had notice to appear and defend the suit." 04. Interest as an element of damages. In those jurisdic- tions in which Flureau v. Thornhill is followed, the purchaser will, as a general rule, be entitled to recover, as an element of his damages on failure of the title, interest on such of the purchase money as he may have paid, 86 on money kept idle by him with which to pay the purchase money, and also on money borrowed by him for that purpose. 8 * It seems, however, that the purchaser can- not recover interest if there is no liability for rents and profits on his part to the true owner. 87 If the purchaser sell stocks or bonds to raise a fund with which to pay the purchase money, and the title fails, he cannot recover compensation for loss occasioned by a rise in value of the stocks, since the sale would have pro- " Northridge v. Moore, US N. Y. 420: 23 X. E. Rep. 570. "Walker v. Moore, 10 B. A C. 416. "Hodge* v. I.it.hfM'1.1. 1 Bing. N. C. 492. **Po*t, ft| 173, 175. A bond to indemnify against all claims and incum- bramrn, etc., and to " pay all coats, charges, or expenses necessary to defend the premise* *' against adverse claims, embrace* fees paid counsel, and other necewwry expends incurred in defending ejectment for the premises. Robin- on v. Brakewell. 25 Pa. St. 424. "1 Sugd. Vend. (8th Am. ed.) 3(10; 2 Sugd. Vend. (8th Am. ed.) 329; 2 Sutherland Dam. 221. Gates v. Parmly, 03 Wi. 2fl4, 66 N. W. 253. Davis v. J. J .-):: Heiinburg v. IMIIHV. .T. X. V. Super. Ct. 35. 40. Martin v. M.-rrin. .".7 In. I. .'VI; Jti Am. I!rp. 4:, ; Puterhaugh v. Puterbaugh, 7 hid. App. 280; 8. C. 34 N. E. Rep. 611. MEASURE OF DAMAGES ; INABILITY TO CONVEY GOOD TITLE. 243 tion to collude with his wife and induce her to withhold her con- sent. In Pennsylvania it has been held that if the wife refuse to join in the conveyance, the purchaser can recover nominal damages only, for the reason that the law will not indirectly coerce specific performance on the part of the wife by awarding punitive damages against the husband. 78 If the vendor contract that a third person shall convey a title to the land, the measure of damages will be the value of the land at the time of the breach. 79 8 99 WHERE THE VEUDOR REFUSES TO CURE A DEFECT OR REMOVE INCTJMBRANCES. Where the title is defective or the estate incumbered, and the vendor has the power to cure the defect or remove the incumbrance, but neglects or refuses so to do, the purchaser may recover as damages the value of the premises at the* time of the breach. 80 Upon the same principle it has been held that if a vendor expressly agree to perfect the title, or to do some act necessary to save the purchaser harmless from the claims or demands of third persons, and fails to perform his contract in those respects, whereby the estate is lost to the purchaser, the rule limit- ing the damages to the consideration money does not apply, and the purchaser may recover full damages for whatever loss he has sus- tained. 81 If the purchaser himself lay out money in removing 7S Burk v. Serrill, 80 Pa. St. 413; 21 Am. Rep. 105. See, also, Donner v. Redenbaugh, 61 Iowa, 269; 16 N". W. Rep. 127, and post, ch. 18, 199, and notes. 19 3 Sedg. Dam. (8th ed.) 1007. Pinkston v. Huie, 9 Ala. 252; Gibbs v. Jemison, 12 Ala. 820. Dyer v. Dorsey, 1 Gill & J. (Md.) 440. In Beard v. Delaney, 35 Iowa, 16, the vendor having received $400 for the land, executed a bond in the penalty of $400, to procure title from a third person, and it was held that the purchaser might recover that sum as " liquidated damages," though he had received a conveyance of the land and had not been disturbed in the possession. In Yokum v. McBride, 56 Iowa, 139, the vendor agreed to perfect the title by procuring a patent to the purchaser from the State, and the court held that if the vendor was unable to procure the patent without fault on his part, the purchaser could recover only nominal damages. 80 1 Chitty Cont. (9th ed.) 289; 3 Sedg. Dam. 182. Williams v. Glenton, L. R., 1 Ch. App. 200; Simons v. Patchett, 7 El. & Bl. 568; Goodwin v. Francis, L. R., 5 C. P. 295; Robinson v. Hardman, 1 Exch. 850; Engel v. Fitch, 4 Q. B. 659. Kirkpatrick v. Downing, 58 Mo. 32; 17 Am. Rep. 678. 81 Taylor v. Barnes, 69 N. Y. 430. Where the premises sold were subject to a species of vendor's lien i* favor of the State, against which lien the vendor 1_'44 .MAHKKTABLK TITLE TO KK.U. KSTATE. incumbrances, or in perfecting the title, he can recover as damages only the amount expended for those purposes. 82 If he expends in perfecting the title a sum greater than the purchase money, it seems that he cannot recover the excess unless the case be one in which he would be entitled to damages for the loss of his bargain. 81 100. LIQUIDATED DAMAGES. The parties may always agree upon an amount to be paid as liquidated damages in case the ven- dor fails to make title at the specified time, and the purchaser will be entitled to recover that amount as damages, though it be equiva- lent to damages for the present value of the land. 84 But the amount agreed upon must be reasonable; otherwise it will be regarded as a jM-nalty. M in which case, it is presumed, the actual value of the agreed to protect the purchaser, the court, after observing that the rule limiting the measure of damages to the purchase money paid, with interest, docs not apply where the vendor has sold lands to which he has not a per- fect title, but which he undertakes to complete and perfect, and neglects so to d<>. continued: "In this case there is an exj>rc>-ed agreement for indemnity, and a lecovery which does not give the vendee the benefit of his lmrgaiii, and the value of his purchase does not indemnify him against loss. The true rule of damages as a measure of indemnity in such case is the value of the land at the time of the eviction or other breach of the contract, with intercut from that time. The plaintiff lost the benefit of her purchase by the omission of the defendants to perform their agreement by paying for the lands to perfect her title. The loss was occasioned by the act of the defendants, against which they covenanted to indemnify the plaintiff, not men-lv l>y restoring the consideration of the purchase, but by paying her the equivalent of the lands to which she was entitled. This alone would adequately indemnify her against loss." If the vendor contracts to convey free of all incumbrances, and the prop- erty is destroyed by fire before he is able to remove an incumbrance, the low must fall on him. Kppstein v. Kuhn, 225 111. 115, 80 N. E. 80. See also, Sut ton v. Davis, 143 X. C. 474, 55 S. E. 844. "2 Sutherland Dam. 22S. The same rule prevails in an action for breach of the covenant of warranty or against incumbrances. Post, $8 129, 164. "2 Sutherland Dam. 228. With the exception of Cox v. Henry, 32 Pa. M. 1, all the case- cited l.y this author to the proposition in the text were action* for 1. reach of covenant- for title. S, , |,,,~t, g 131. In Chartier v. M.ir-liall. ."ii; \. H. 478, where the vendor refused to convey, damages were allowed the purchaser for an excess over the consideration money paid by him to get in the outstanding title. M l Sedg. Dam. (8th ed.) g 405; Lyons v. Woman's League, 124 La. 222: 1H. "Gates v. Parmly, 93 Win. 294: 66 N. W. 253. Runnell* v. Pruitt. (Tex. W. 1017. MEASUKE OF DAMAGES; INABILITY TO CONVEY GOOD TITLE. 245 land at the time of the breach of the contract would be allowed as damages. 86 The penalty of a title bond is usually double the pur- chase money, and when that is the case, is, of course, as it purports to be, merely a penalty and not liquidated, damages. 87 But if a purchaser bring covenant on a title bond, and the case be one in which he is entitled to damages for loss of his bargain, it has been held that his recovery cannot be limited by the penalty of the bond. 88 And, generally, it may be said, that the whole agreement may be looked to for the purpose of determining whether the sum mentioned in a title bond as a " penalty " is in fact a penalty or liquidated damages. 89 If the agreement contain various stipula- tions of different degrees of importance, besides the stipulation to make a good title, and the damages for the breach of some of the 84 1 Sedg. Dam. (8th ed.) 405. where the rule was thus stated: " Wherever the damages were evidently the subject of calculation and adjust- ment between the parties, and a certain sum was agreed upon and intended as compensation, and is in fact reasonable in amount, it will be allowed by the court as liquidated damages. Holmes v. Holmes, 12 Barb. (N. Y.) 137, where it was said by the court: "When the damages to be recovered are liquidated in advance by the terms of the contract it is a mistake to assume that the party claiming is alone benefited. Such a stipulation may be as beneficial to the party who pays as to him who receives. Both enter into the contract with a full knowledge of all their rights and liabilities. The amount to be paid is not to be diminished, neither is it to be enlarged. Each may estimate the consequences of a breach with certainty and precision, and deport himself accordingly." In Leggett v. Mut. Ins. Co., 53 N". Y. 394, it was held that an agreement to pay $5,000 liquidated damages in case of the vendor's refusal or failure to execute and deliver a proper deed applied only to the agreement to execute the deed, and not to the warranty of title implied from the agreement to sell. "Burr v. Todd, 41 Pa. St. 206. Stewart v. Xoble, 1 Green (Iowa), 28. See, also, Dyer v. Dorsey, 1 Gill & J. (MkU 440. But the penalty of a title bond is not necessarily double the purchase price, and it is not evidence that one-half of it was the value of the land or the amount of the purchase price, and it is error for the court so to instruct the jury. Duncan v. Tanner, 2 J. J. Marsh. (Ky.) 399. 88 Noyes v. Phillips, 60 N. Y. 408. Sweem v. Steele, 5 Iowa, 352. But see Spruill v. Davenport, 5 Ired. L. (N. C. ) 145. If the action be debt instead of covenant the plaintiff's r3covery would of course be limited by the penalty. In Beard v. Delany, 35 Iowa, 16, where the vendor entered into a bond in the " penalty " of $500 to perfect the title, that sum having been paid to him as consideration money, it was held that the $500 should be treated as liquidated damages, and the purchaser was permitted to recover that amount. ""Genner v. Hammond, 36 Wis. 277. 246 MA1CKETA1JLE TITLE TO KEAL ESTATE. stipulations would be certain, and of others uncertain, and a large sum is expressed in the agreement as payable on the breach of any of the stipulations, such sum will be regarded as a penalty, and not as liquidated damages. 90 In a case in Illinois the following rule was announced : " Where the parties to the agreement have expressly declared the sum to be intended as a forfeiture or jx'ii- alty, and no other intent is to be collected from the instrument, it will generally be so treated, and the recovery will be limited to the damages sustained by the breach of the covenant it was to secure. On the other hand, it will be inferred that the parties intended the sum named as liquidated damages, where the damages arising from the breach are uncertain and are not capable of being ascer- tained by any satisfactory and known rule." Accordingly, a written contract in that case for the exchange of farms having provided that in case either party failed to convey at the appointed time such party would " forfeit and pay as damages " to the other the sum of $1,500, it was held, in view of the difficulty of proving the actual damages sustained by the plaintiff, that the sum named should be treated as liquidated damages. 91 "Carpenter v. Lockhart, 1 Ind. 434. Gates v. Parmly, 93 Wis. 294, 86 N. W. 253. " Gobble v. Linden, 76 111. 157. See, also, 2 Greenl. Ev. 258, 259. CHAPTER XI. ACTION AGAINST VENDOR FOR DECEIT. GENERAL PRINCIPLES. 101. WHAT CONSTITUTES FRAUD WITH RESPECT TO THE TITLE. Concealment of defeats. 102. Wilful or careless assertions. 103. Defects which appear of record. 104. Existence of fraudulent intent. 105. Statements of opinion. 106. Pleading. 107. 101. GENERAL PRINCIPLES. Fraud on the part of a vendor of real estate in misrepresenting or concealing the state of his title materially enlarges the scope of the purchaser's remedies in sev- eral particulars, the principal of which may be thus classified: (1) It gives the purchaser the right to hold the vendor liable for defects of title, though the contract has been executed by the acceptance of a conveyance without covenants for title; 1 (2) it entitles the purchaser to the rescission of an executed contract of sale; 2 (3) it entitles the purchaser, on rescission of the contract, whether executed or executory, to retain possession of the premises until he is reimbursed for any loss, injury or expense he may have incurred; 3 (4) it entitles the purchaser to recover, in an action for deceit, damages for the loss of his bargain, over and above the consideration money, and any sum expended by him for improve- ments; 4 (5) it gives the purchaser the right to recover back or detain the purchase money, whether the contract has been executed by a conveyance, whether that conveyance was with or without covenants for title, 5 and, if with covenants, whether they have 1 1 Sugd. Vend. 7, 247. 2 2 Sugd. Vend. 553. 3 Young v. Harris, 2 Ala. 108; Garner v. Leverett, 32 Ala. 413. Kiefer v. Rogers, 19 Minn. 38. ' Rawle Covt. ch. 9 ; 1 Sugd. Vend. 358. 5 2 Sugd. Vend. 553; Rawle Covt. 322. Diggs v. Kirby, 40 Ark. 420. McDonald v. Beall, 55 Ga. 288. Haight v. Hayt, 1?9 N. Y. 474. Edwards v. McLeay, Coop. 308. [247] 248 MARKETABLE TITLE TO HEAL ESTATE. or have not been broken; ' (6) it absolves the purchaser from his obligation to tender the purchase money and demand a convey- ance as a condition precedent to an action against the vendor ; 7 and (7) it deprives the vendor of the right to cure defects or remove incnmbrances, and to require the purchaser to take the perfected title.* Several of the remedies here mentioned are con- current; the right to rescind the contract in equity; the right to recover back or to detain the purchase money at law, and the right to recover damages at law for the deceit. He may, of course, elect between these several remedies ; 9 but inasmuch as he may recover damages in excess of the consideration money in an action for the deceit, that remedy is generally to be preferred to assumpsit for money had and- received to the plaintiff's use, in which he would only recover the purchase money and interest, and nothing for the loss of his bargain. The purchaser cannot be compelled to take one of those remedies instead of another; he can never be required to accept damages in lieu of rescission; 10 nor can the vendor insist upon rescinding the contract and returning the consideration where the purchaser is entitled to damages. The purchaser may, of course, waive his right of damages, and sue to recover so much of the purchase money as he may have paid. 11 If the purchaser desires to recover damages at law against the vendor guilty of fraud in respect to the title, 'his appropriate remedy at common law is an action on the case in the nature of a writ of 1 Sugd. Vend. 247, where it is aaid that if a purchaser is entitled to relief in a case of fraud in respect to the title, " it is not important that ho ha * not been evicted ; if the rightful owner is not barred by adverse posses- sion, the purchaser cannot be compelled to remain during the time to run in a Mate of uncertainty whether, on any day during that period, he may have his title impeached. A court of equity is bound to relieve a purchaser from that state of hazard into which tho misrepresentation of the seller has brought him." Whitlock v. Donlingcr, 59 III. 96. 'Thomax v. Coultafl, 76 111. 493. Green v. Chandler, 25 Tex. 148. Hut see Whitney v. Crouch, 172 N. Y. Hupp. 729. Kruinm v. Beach, 96 N. Y. 398. "1 Supl. Vend. (8th cd.) 3fT. ( orbett v. McGregor (Tex. Civ. App.) 84 S. \V. 278. v. Chapin, 44 Pa. St. 9. ACTION AGAINST VENDOR FOR DECEIT. 249 deceit. 12 He cannot, if his action be for breach of covenant, increase his damages by showing fraud on the part of the vendor. 13 It is true that the action of covenant sounds in damages, but, as has been already seen, the purchaser's recovery is limited to the consideration money and costs of eviction. 14 If the contract be under seal, the purchaser may elect between the action of covenant and the action on the case for deceit ; if he chooses the latter rem- edy, the objection cannot be made that the contract is under seal, and that covenant should have been brought. 15 The purchaser does not waive his right to recover damages, in a case of fraud, by pay- ing the purchase money. 16 He waives his right to rescind the con- tract by remaining in possession and paying the purchase money after discovering the fraud. 17 But the action to recover damages is an affirmance of the contract, and it is always his privilege to complete the contract without impairing his right to reimbursb- ment for any loss which he may have incurred through the ven- dor's fraud. 18 If the purchaser should choose to keep the premises and bring an action for damages grounded on the fraud, his pos- session- of the premises, if it .be probable that he would never be disturbed therein, would, it is apprehended, be considered in miti- gation of damages. The purchaser is not entitled to relief in a case of fraud- which cannot operate him an injury, 19 as where the vendor had previously 1J 2-B1. Com. 166; 1 Sugrt. Vend. 236; Kerr on Fraud (Bump's ed.), p. 324. Carvill v. Jacks, 43 Ark. 439. 13 Rawle Covt, 159. "Ante, 90, and post, 164. 13 Parham v. Randolph, 4 How. (Miss.) 435; 35 Am. Dec. 403; English v. Benedict, 25 Misfe. 167. Munroe v. Pritchett, 16 Ala. 785; 50 Am. Dec. 203; Foster v. Kennedy, 38 Ala. 359; 81 Am. Dec. 56. Clark v. Baird, 5 Seld. (X. Y.) 183. See, also, Rawle Covts. (5th ed.) 167; Kerr on Fraud (Am. ed.), 326. 16 White v. Sutherland,' 64 111. 181. "Strong v. Strong, 102 X. Y. 69; 5 N. E. Rep. 799; Schiffer v. Dietz, 83 X. Y. 300. 18 2 Kent Com. 480. Owens v. Rector, 44 Mo. 389. Smyth v. Merc. Tr. Co., 18 Fed. Rep. 486. "Crittenden v. Craig, 2 Bibb (Ky.), 474. Whitney v. Crouch, 172 X. Y. Supp. 729. Wuesthoff v. Seymour, 22 X. J. Eq. 66, where it was held that falsely representing an alley to be a private right of way, instead of a public alley, is not fraud entitling a purchaser to relief, the loss or injury result- 32 250 MAKKETABLK TITLE TO KI.Al. ESTATE. conveyed the premises to a stranger, and the conveyance failed to take effect as against the purchaser, for want of timely acknowledg- ment and registry. 20 Xor where the vendor fraudulently acquired the title, if it appear that the person defrauded made no objection, after reasonable opportunity and full knowledge of the facts." Nor where an incuinbraiice, not disclosed by the vendor, is released by the incumbrancer, and the purchaser suffers no actual injury. 22 Xor where an incumbrance, fraudulently, concealed, has been removed by the vendor before decree in a suit by the purchaser for rescission. Nor, generally, in any case in which the purchaser is not damnified by the alleged fraud. 24 The contract may, of course, be rescinded if the fraud, in respect to the title, was perpetrated by an agent. An agent or attorney of the vendor conducting the negotiations on his behalf, having knowledge of an incumbrance on the estate, must disclose it. 25 But it seems that the principal will not be liable to an action for damages in a case of deceit by the agent, unless the deceit was impliedly authorized by the principal. 26 An action in such case ing from the alley being in either case substantially the same. The same principle was declared in Morrison v. Ixxfe, 30 Cal. 38, but was disapproved in Kelly v. R. Co., 74 Cal. 557. "Meeks v. Garner, 93 Ala, 17; 8 So. Rep. 378. And where land has been c-onveyed and the deed recorded, a subsequent contract by the grantor to Hell the same land to a stranger, does not place a cloud on the title of the grantee, nor furnish a ground of objection to the title by the vendee. Good- kind v. Bartlett, 153 111. 410; 38 N. E. Rep. 1045. Comstock v. Ames, 1 Abb. A pp. Dec. (N. Y.) 411. "Campbell v. Whittingham, 5 J. J. Marsh. (Ky.) 40; 20 Am. Dec. 241. Whitney v. Crouch. 172 N. Y. Supp. 729. "Davidson v. Moss, 5 How. (Miss.) L. 073. But see post, as to right of vendor to remove objections where he has been guilty of fraud, s 314. "Halls v. Thompson, 1 Sm. & M. (Miss.) 489. Board of Commrs. v. Younger, 20 Cal. 172. Walsh v. Hall, 66 N. C. 233. "1 Sugil. Vend. (8th Am. ed.) 9. Evans v. Bickndl, 6 Vcs. 174, 193, trmblc; BurroweM v. Lodce, 10 Ves. 470; Bowles v. St. -wart. 1 Sch. & Lef. 227. Gill v. Corbin, 4 J. J. Marsh. (Ky.) 392. Concord Bank v. Gregg, 14 N T . H. 331. "K-rr on Fraud (Am. ed.), 326; citing New Brunswick R. Co. v. Conybeare. '.' II. I* Cs. 1; Henderson v. Lacon, L. R., 5 Eq. 262. In Law v. Grant, 37 U i-. 548, it was held that if an agent effected a sale of the priiiripal** land 1-v fiilnc representation* or other fraud, without the authority or knowledge of tin- prim-ipul, th latter is chargeable with such fraud in the same manner a* if he had known or uuthorir.ed it. The rcprrentnt inn* in this ca-^e were made with respect to the value of the land, and not with respect to the title, but there would seem to be no difference in principle between the two. The ACTION AGAINST VENDOR FOR DECEIT. 251 may be maintained against the agent himself; it is no defense that he was acting for another. 27 Where a husiband sold the lands of his wife, and fraudulently misrepresented the title, and the wife received the benefit of the sale, it was held that she was bound by his acts and liable in damages, though the contract was made in the name of the husband, and without her knowledge. 28 An agent fraudulently misrepresenting the title may, of course, be held personally liable for damages. 29 A trustee who makes false representations as to incumbrances on the property sold by him, will be personally liable to the purchaser. 30 In England, and in some of the American States, a vendor or his agent, fraudulently misrepresenting the title, or fraudulently concealing defects of title, for the purpose of making a sale, is, by statute, made liable to fine and imprisonment, in addition to a civil action for damages. 31 The grounds upon which the purchaser is entitled to damages at law, or to relief in equity, where fraud has been practiced upon him respecting the title, are in most cases the same ; 32 consequently, purchaser set up the agent's fraud, by way of counterclaim for damages, as a defense to a foreclosure proceeding. It may be doubted whether the principal could be held liable for his agent's fraud in an action for damages, unles-s the fraud was authorized by him. New Brunswick R. Co. v. Cony- bear e, 9 H. L. Cas. 1. "Riley v. Bell, 120 Iowa, 618; 95 N. W. 170. ^Krumm v. Beach, 96 N". Y. 398. But where the vendor did. not disclose the fact that the title was in his wife, and the wife's deed was tendered to the purchaser, it was held that there was no fraud, and that the purchaser must take the title. Crump v. Schneider, 246 Fed. 225, 158 C. C. A. 385. 29 Norris v. Kipp, (Iowa) 38 N. W. Rep. 152. 30 1 Sugd. Vend. (8th Am. ed.) 12. 31 24 Viet. chap. 96, 28. Pub. Stat. Mass. 1882, p. 1147. Gen. Stat. Minn. 1881, p. 539. 32 Sugd. Vend. 243, where it is said that, in case of fraud by the vendor in the sale of real estate, " a foundation is laid for maintaining an action to recover damages for the deceit so practiced ; and in a court of equity, a foundation is laid for setting aside the contract which was founded upon a fraudulent basis." While the proposition stated in the text is true in a general sense, it will perhaps admit of some qualification. A court of equity might freely decree the rescission of a contract upon evidence of fraud which a court of law would deem insufficient to warrant a judgment against the vendor for damages. And, on the other hand, in the case of an executed con- tract, the court might be influenced in refusing a rescission by the considera- tion that the purchaser still had his remedy on the covenants contained in his deed. 252 MARKETABLE TITLE TO KEAL ESTATE. it has not been deemed necessary in the following pages to dis- tinguish the cases in which damages were sought or rescission of the contract demanded by the purchaser, or to consider the subject separately with respect to the particular form of relief or redress to which he may be entitled. Where the sale is by parol and the terms of the contract between the parties are afterwards reduced to writing, fraudulent repre- sentations of the vendor at the sale will not be merged in the written contract. 88 1 02. WHAT CONSTITUTES FRAUD WITH RESPECT TO THE TITLE. Concealment of defects. The following propositions may be stated as embodying the principal features of the decisions as to what acts or conduct of the vendor amount to fraud in respect to the title which he undertakes to convey: (1) The vendor is guilty of fraud if he conceals a fact material to the validity of the title, lying peculiarly within his own knowl- edge, and which it is his duty to disclose. 84 It is as much a fraud "Shanks v. Whitney, 66 Vt. 405. "Story Eq. 207; Sugd. Vend. 271; Sugd. Law of Prop., etc., 653. Early v. Garrett, 9 Barn. & Cres. 928. Laidlaw v. Organ, 2 Wh. (U. S.) 195. Saltonstall v. Gordon, 33 Ala. 151. State v. Holloway, 3 Blackf. (Ind.) 47. F.mmons v. Moore, 85 111. 304; Strong v. Lord, 107 111. 26. CrutchfieM v. Uanilly, 16 Ga. 434. Young v. Bumpass, 1 Freem. Ch. (Miss.) 241. Rose- man v. Conovan, 43 Cal. 110. Brown v. Montgomery, 20 N. Y. 287; 75 Am. Dec. 404. Bank v. Baxter. 31 Vt. 101. Carr v. Callaghan, 3 Litt. (Ky.) 365. :<7.">. Corln'tt v. McGregor, (Tex. Civ. App.) 84. This is the auppn^io rrri of the t-xt writers, and is substantially the rule established by the leading cane of Kdward< v. Md.eay. Coop. 308, Sir WM. GRANT delivering the opinion. To this Lord Ki.nox added on appeal, that if one party make a representation which lie knows to be false, but the falsehood of which the other party has no means of discovering, he is guilty of fraud. Sugd. Vend. 246. In the case of Brown v. Manning. 3 Minn. 35; 74 Am. Dec. 736, it was held that tin- mere execution and delivery of a deed, with general warranty convex in-.' land which the grantor had previously conveyed to a third pcr-on. does not of itself niiioiint to fraud, and that there must be some false representation of fact, with intent to deceive, accompanying the act, in order to entitle the grantee to relief. It is exceedingly difficult to reconcile thi- decision with th- general rule that the vendor is guilty of fraud if he suppresses any fact material to the validity of the title. The court cite* no authority, and gives no reason for the deci-ion other than that "there may have been, and frequently dors \i-i. a condition of thing* which would make it perfect 1\ safe for the purchaser to take a deed of land under *uch circum-tance*. and ACTION AGAINST VENDOR FOR DECEIT. 253 to suppress the truth as it is to utter a falsehood. 35 The question, what facts the seller must disclose, is capable of much refinement. Obviously it cannot be determined by any precise rule. In every case that arises the question is one of fact to be solved by all the circumstances which surround the transaction, 36 among which, perhaps, the most important are the relations of trust and con- fidence which the parties bear to each other, and the inequalities in their respective business capacities, or opportunities for information respecting the title. Thus, it has been held, that if the vendor is a resident of the locality where the sale is made, and is aware that certain existing facts render the title invalid under the laws there in force, he is bound to disclose those facts to the purchaser if he is a stranger, though they might be dis- covered by an examination of the records. 37 On the other hand, it has been held that the vendor is under no obligation to disclose rely upon his covenants for his 'security against the outstanding title, and such a transaction could take place in perfect good faith." In Maxfield v. Bierbauer, 8 Minn. 413, this case was cited approvingly, but it appeared that the purchaser was aware of the prior conveyance. A contrary decision upon similar facts will be found in Banks v. Ammon, 27 Pa. St. 172. Of course, the mere conveyance with covenants of warranty, in the absence of conceal- ment or misrepresentation of the state of the title, is not of itself a sufficient fraudulent representation to vitiate the transaction. Merriman v. Norman, 9 Heisk. (Tenn.) 270, criticising Gwinther v. Gerding, 3 Head (Tenn.), 198. If the vendor suppresses the fact that his wife is living, so as to induce the purchaser to accept a conveyance without a release of her contingent right of dower, he is guilty of fraud. Sniffer v. Dietz, 83 N. Y. 300; S. C., 53 How. Pr. (N. Y.) 372. So also, where he alters the abstract of title so as to conceal an incumbrance on the land. Knowlton v. Amy, 47 Mich. 204. The fact that the seller fails to deny, in conversation with the purchaser, the charge that he has concealed an incumbrance on the property, is not sufficient evidence of fraud on his part. Halls v. Thompson, 1 Sm. & M. (Miss.) 443. The encroachment of an adjoining lot upon that sold, known to the vendor but not mentioned in the particulars of sale, is a suppression of a material fact entitling t]ie purchaser to relief. King v. Knapp, 59 N. Y. 462. It is fraud in the vendor to execute a title bond knowing that he has no title, legal or equitable. Mullins v. Jones, 1 Head (Tenn.) 517. It is fraud in an executor to sell land, belonging to the estate, if the will confers no authority for that purpose. Woods v. North, 6 Humph. (Tenn.) 308; 44 Am. Dec. 312. "Lockridge v. Foster, 4 Scam. (111.) 569. 3 Bean v. Herrick, 12 Me. 262; 28 Am. Dec. 176. 37 Babcock v. Case, 61 Pa. St. 427; 100 Am. Dec. 654. Moreland v. Atchison, 19 Tex. 303, 311. 254 MARKETABLE TITLE TO REAL ESTATE. the existence of unopened streets and such like easements affect- ing the premises sold, when the facts respecting them appear from the plats and records in the public offices, and he has reason to believe that the purchaser has equal knowledge with himself upon the subject, 38 nor to disclose the fact that his title is equit- able only, the legal title being outstanding in another, if he be in a situation to compel a conveyance of the legal title ; or if the circumstances of the case be such that he is entitled to time in which to perfect the title. 39 As a general rule it may be said that the vendor is bound to disclose all facts material to the title of which he is informed. 40 A title which upon the face of the ven- dors title deeds, or the public records, appears complete and per- fect, may in fact be utterly worthless, as where the estate is held pur aiUre vie, and, at the time of the contract between the vendor and purchaser, the cestui que vie is dead, or in any case in which the vendor's title is liable to be defeated upon the happening of a particular event. In all such cases the vendor is guilty of fraud if he conceals from the purchaser a fact which defeats or lcs.-cn> the value of his title. 41 It has been said that if the purchaser accepts the estate subject to all faults, and the vendor knows of a latent defect which the purchaser could not discover, there is a question as to whether or not he is bound to disclose the defect. This observation was made in respect to faults in the quality of the estate, but it would apply as well, it would seem, to defects in the title. 41 It seems scarcely fair to apply to a case of alleged fraud with respect to the title the rule which prevails in a case of fraudulent representations as to the quality of the estate, namely, that the vendor is not bound to disclose defects which lie open to the observation of the purchaser. It is true that all defects of title which would appear upon a thorough examination of the title may be said to be, in a certain sense, open to the ol . informed themselves, must abide the consequences of their own inattention and careless- liens." In this case fraud on the part of the vendor was alleged, both in respect to the value of the property and state of tin- title. 'Deck.-, y. Schulze, (Wash.) 39 Pac. Rep. 201. Ante, $ 102, n. Turner v. Harvey, Jac. 178. Ward v. Packard, 18 Cal. 391. Richardson v. Boright, 9 Vt. 368. The canes which hold that the vendor is not guilty of fraud in failing to disclose an incumhrancc apparent of record jn< ee Lea (Tenn.i, 547, where the vendor failed to inform the purchaser of a -nit ;> enforce a prior vendor's lien upon the land, it was said that the mere fact of a want of title known to the vendor and not communicated to the vendee, in a fraud upon him, for which he may resist the payment of the pun-lia-o money. See, also, Prout v. Roberts, 32 Ala. 427. Crutchfield v. Danilly, 16 Oa. 432. ACTION AGAINST VENDOR FOR DECEIT. 259 ing the title not apparent of record, such as the fact of inheritance or the like, will fix the vendor with fraud. 52 There is undoubtedly a conflict of authority as to the duty of the vendor to disclose defects of title which the purchaser might discover hy an examination of the records. There are cases which hold that the vendor is liable, if, knowing of a defect or incum- brance, he fails to disclose it, 53 others, that he is liable if he assert that the title is good, when he knows that the records show it to he defective ; M and lastly, cases which hold that the purchaser has "Hammers v. Hanrick, 69 Tex. 412; 7 S. W. Rep. 345. 58 Cullum v. Branch Bank, 4 Ala. 21; 37 Am. Dec. 725. Burwell v. Jackson, 5 Seld. (N. Y. ) 535. Here there was no representation whatever by the vendor as to the sufficiency of his title, unless the agreement to make " a good and sufficient conveyance " could be considered such. In Prout v. Roberts, 32 Ala. 427, the rule was thus broadly stated by STONE, J. : "A vendor who conceals from his vendee a known and material defect in or incumbrance on his title, and thereby induces him to purchase, is guilty of a fraud for which the vendee may claim a rescission of the contract," citing Cullum v. Br. Bank, supra. Harris 1 v. Carter, 3 Stew. (Ala.) 233; Greenlee v. Gaines, 13 Ala. 198; 48 Am. Dec. 49; Bonham v. Walton, 24 Ala. 513; Foster v. Gressett, 29 Ala. 393; Lanier v. Hill, 24 Ala. 554; McLemore v. Mabson, 20 Ala. 137. To the same effect see Johnson v. Pryor, 5 Hayw. (Tenn.) 243; Crawford v. Keebler, 5 Lea (Tenn.), 547; N"icol v. Nicol, 4 Baxt. (Tenn.) 145; Napier v. Elam, 6 Yerg. (Tenn.) 108. Norris v. Hay, 87 Pac. 380; 149 Cal. 695. In Cullum v. Branch Bank, supra, the court said: "It cannot be denied that the (purchaser) was in error in not making an examination of the register, and also in not ascertaining from the previous vendor whether he pretended to any lien. But this does not exculpate the vendor. * * * By offering to sell the estate, the vendor virtually repre- sents it as not incumbered by himself, or if incumbered that he will free it before the sale is executed ; and if he wishes to discharge himself from the consequences of this implied representation, it lies with him to show that the purchaser was informed, or otherwise knew of the incumbrance." Citing Harding v. Xelthorpe, Xelson, 118. Cater v. Pembroke, 2 Bro. C. C. 281. In Kennedy v. Johnson, 2 Bibb (Ky.), 12; 4 Am. Dec. 666, a case in which the vendor failed to disclose the priority of his grant to a purchaser who believed he was acquiring the elder legal title, the contract was rescinded at the suit of the purchaser, though the land records showed the defect. 51 The rule that the purchaser is chargeable with laches in failing to examine the title does not apply where the vendor, knowing the title to be defective, represents that it is good. It does not lie in the mouth of the vendor to say that his falsehoods respecting the title might have been dis- covered by the purchaser if he had used due diligence and caution in examin- ing the public records. Pryse v. McGuire, 81 Ky. 608; Young v. Hopkins, 6 Mon. (Ky.) 23; Campbell v. Whittingham, 5 J. J. Marsh. (Ky.) 96; 20 260 MARKETABLE TITLE TO HEAL ESTATE. no right to rely on the vendor's representation that the title is good, in any case, hut should satisfy himself by an examination of the records. 55 Both upon principle and authority it would seem that the second class of cases establishes the true rule. It is inconceivable that the vendor, knowing his title to be bad, should declare it to be good for any purpose other than to induce the purchaser to accept it without examination. There can l>e no doubt that in morals the vendor is guilty of fraud. And when it is sought in law to visit uj>on him the consequences of his fraud, the vendor should not IK? allowed to answer, that if due diligence had been exercised, his fraud would have been discovered and Am. Dec. 241. Kiefer v. Ropers. 19 Minn. 32. Topp v. White, 12 Heisk. (Tenn.) 165; Xapier v. Klam, 6 Yerg. (Tenn.) 108: Ingrara v. Morgan, 4 Humph. (Tenn.) 60; 40 Am. Dec. 626. Riley v. Bell, 120 Iowa, 618; 95 N'. W. 170; Muller v. Palmer, 144 Cal. 305; 77 Pac. 954. Buchanan v. Burnett, 52 Tex. Civ. App. 68, 114 S. W. 406; Clarke v. Thorpe, 117 Minn. 202, 135 N. W. 387; Kevil v. Wilford, 31 Ky. L. Rep'r. 1000; 104 S. W. 348. The vendor is estopped from asserting that the purchaser might have ascer- tained the truth ly examining the puhlic records. Wilson v. Higher, 62 Fed. Rep. 723. (Contra, Williams v. Thomas, 7 Kulp. (Pa. Com. PI.) 371.) "Griffith v. Kempshall, Clarke Ch. (X, Y.) 671. See notice of this case p. 257. It is believed that, in most of the instances in which the purchaser has been denied relief in cases of fraud on the ground that due diligence in examining the records would have shown the true state of the title, there was no attempt on the part of the vendor to fraudulently conceal the facts. To State, with knowledge to the contrary, that the record showed no defects would, of course, he such an attempt. Pry-se v. McOuire, 81 Ky. 60S. In K>rr v. Kitchen, 7 Pa. St. 486, the head note states that " fraudulent con- cealment of defects cannot lie imputed when they appear from deeds on record." The case does not support the head note. There was no evidence that any concealment of the state of the title was attempted. Tin- parties acU-d under u mistake as to the legal effect of an instrument affecting the title. In Wagner v. Perry. 47 Hun (N. Y.). 516, it was held that the purchaser is not guilty of fraud in failing to state facts affecting the title disclosed hy the records, HO long as he makes no effort to conceal those facts. The rule stated in Sugden on Vendors, 246, that if the false statement could not lie discovered from the abstract, the purchaser will he relieved, can scarcely be considered authority for denying relief to a purchaser who might have discovered the vendor's fraud (not mistake) by examining the title, there being obviously a wide difference between a case in which the vendor furnishes an obstract which shows a defect in his title, and one in which he induces the purchaser to forego an examination of the title by assuring him that is is clear and unincumbered. ACTION AGAINST VENDOR FOB DECEIT. 261 avoided. 56 If the rights of a stranger should be impaired by such want of diligence, the purchaser might be precluded in his behalf, but as between vendor and vendee, the doctrine of notice from the record can have no application in a case of positive fraud on the part of the former with respect to the title. 57 If the vendor make a false statement as to any specific fact affecting the title, for example, if he knowingly and falsely states " No man can complain that another has relied too implicitly on the truth of what he himself stated." Kerr on Fraud, 80. Brown v. Rice, 26 Grat. (Va.) 473. "When once it is established that there has been any fraudulent misrepresentations or willful concealment by which a person has been induced to enter into a contract, it is no answer to his claim to be relieved from it to tell him that he might have known the truth by proper inquiry. He has a right to retort upon his objector. ' You, at least, who have stated what is untrue, or have concealed the truth for the purpose of drawing me into a contract, cannot accuse me of want of caution, because I relied implicitly on your fairness and honesty.' " Language of Lord CIIELMSFOBD cited in Hull v. Field, 76 Va. 607. In Upshaw v. Debow, 7 Bush (Ky. ), 447, it was held that the purchaser was not bound to examine the vendor's title papers, and might rely on his statements as to the title. And in Young v. Hopkins, 6 T. & B. Mfon. (Ky.) 23 it was declared a bad defense to say that the purchaser might have discovered the vendor's false- hoods by using due diligence. Dupree v. Savage, ( Tex. Civ. App. ) 154 S. VV. 701. In Buchanan v. Burnett, 102 Tex. 492; 119 S. W. 1141; 132 Am. St. Rep. 900, it was held, in a case of false representations as to the title by the vendor, that the purchaser was entitled to rescind though he had in his possession an abstract showing the vendor's title. "Parham v. Randolph, 4 How. (Miss.) 451; 35 Am. Dec. 403. Hunt v. Moore, 2 Pa. St. 107. Campbell v. Whittingham, 5 J. J. Marsh. (Ky.) 96; 20 Am. Dec. 241. But see Richardson v. Boright, 9 Vt. 368, and the intima- tion of BREWER, J., in Clagett v. Crall, 12) Kans. 397. The reasons for this proposition were forcibly stated by the court in Burwell v. Jackson, 5 Seld. (N~. Y.) 545, as follows: "A vendee can never be bound, as between him and the vendor, to search the record, for defects of title. The protection of vendors from the consequences of agreeing to sell that which they do not own constitutes no part of the object of the recording acts; nor is it any answer to a warranty, either express or implied, that the purchaser might by inquiry have ascertained it to be false. The reason why the implied warranty ceases upon the consummation of the contract of sale by the execu- tion of a deed is not that the vendee is presumed to have investigated the title and discovered the defects, if any there be, but that it is reasonable to require the vendee in taking a deed, which is a more solemn and deliberate act than entering into a preliminary agreement for the purchase, to protect himself by an express warranty." A purchaser is not charged with notice of facts which come to the knowledge of his attorney in the examination, nor 262 MARKETABLE TITLE TO K1.A1. ESTATE. that there is no incumbrance on the property, the mere fact that the purchaser might have found the incumbrance by examining the public records, will not relieve the vendor from the conse- quences of his fraud. 58 It has been held that a purchaser is not guilty of laches in rely- ing upon innocent misrepresentations of the vendor as to the title, and that as a general rule, evidence which is sufficient to establish innocence of intentional misrepresentation on the part of the vendor will relieve the purchaser of the imputation of laches in failing to examine the title. 59 The English rule u]x>n this question has been thus stated : " If the vendor sells with knowledge of a defect in the title to part of the estate material to the enjoyment of the rest, and does not disclose the fact to the purchaser, and it cannot be collected from the aljstract, the purchaser will be entitled to have the contract rescinded. 60 The same rule would apply in America, it is apprehended, in all cases in which an abstract of the title is furnished by the vendor. 61 He would not be deemed guilty of fraud in failing to call the attention of the purchaser to a defect of title plainly disclosed by the abstract. But in the application of the English rule to American cases care should be taken to distinguish between the abstract of title and the public registry of conveyances, incumbrances, etc., generally existing in American States. It would seem scarcely just to the purchaser to give to the public registry the effect of an abstract of title, a document usually submitted to the scrutiny of counsel, and so prepared that a defect thence appearing could hardly escape the attention of the purchaser or his counsel, except in a case of gross negligence or incompetence. It is convenient to note here the differences between the English and Amrri<-;m sources of infor- mation respecting the title. In England there is no general rcgis- put upon inquiry by the contentH of a deed in his chain of title, an between liiniM-lf .mil the vendor. The doctrine of con>tnic-i ivr notice from thcp -iirci'* i- only applied for the protection of third persons against the claim* ..f .iihHequent purchaser*. Cliamplin v. Laytin, 6 Paige Ch. (X. Y.) 189; 31 Am. Dec. 382. " Illumenfeld v. Stine. 87 N. Y. Supp. 81; 42 Misc. 411. "Baptiste v. Peters, 51 Ala. 158. 'I Sugd. Vend. (8th Am. ed.) 375 (240). "Bryant v. Boothe, 30 Ala. 311; 08 Am. Dec. 117. ACTIOJST AGAINST VENDOIi FOR DECEIT. 263 try of title deeds such as exists in America; consequently, when a title is examined there, the vendor must produce all the deeds or other documents in his possession relating to the title, and sub- mit them to the inspection of the purchaser, or furnish the pur- chaser with an epitome or abstract of their essential parts. This is sometimes done in America, but the abstract, owing to the expense attending its preparation, is frequently dispensed with, especially in rural communities, and the purchaser contents him- self with an examination of the registered copies of the vendor's title deeds, either in person or by counsel. The facility with which this may be done has led to the disuse of abstracts in some sections, and given rise to a disposition on the part of the pur- chaser in many cases to rely upon lay opinions as to the title, and to accept without question the vendor's representation that his title is good. 105. Existence of fraudulent intent. Innocent misrepre- sentations. Representations by the vendor, to be fraudulent, must have been, first untrue; and, secondly, the vendor must have known them to be untrue, or have had no reason to believe them true ; and the contract must have been entered into in consequence of such fraudulent representations in order to entitle the pur- chaser to relief. 62 He must have relied upon such representa- tions, 63 and the representations themselves must have been in 62 Taylor v. Leith, 26 Ohio St. 428. Owen v. Pomona L. & W. Co., 131 Cal. 530; 63 Pac. 850; Hoffman v. Kirby, 136 Cal. 26; 68 Pac. 321. Fraud on the part of the vendor with respect to the title cannot exist, unless there be an intent to deceive. Fox v. Haughton, 85 N". C. 168. This was the rule, with the exception of the qualification of the second clause, declared by Lord BROUGHAM in the great case of Small v. Atwood, 6 Cl. & Fin. 531. It is true the alleged fraud in that case consisted of certain representations as to the value or productiveness of the estate, and not as to the sufficiency of the title, but it seems that the rules by which the presence of fraud in the transaction is to be determined are the same in either case. If the vendor state that the title is free from incumbrances " to the best of his knowledge and belief," and there are in fact incumbrances on the property, he will not be charged with fraud unless he knew of their existence. Barton v. Long, (N. J.) 14 Atl. Rep. 568. 03 Bond v. Ramsey, 89 111. 29. Luckie v. McGlasson, 22 Tex. 282. It is error for the court to exclude the purchaser's statement that he relied on the vendor's representations as to the title. Continental Coal & Co. v. Kilpatrick, 158 N. Y. Supp. 1056; 172 App. Div. 541. 264 MARKET ABLE TITLE TO REAL ESTATE. respect to some material thing unknown to him. 64 But if a state- ment be in fact false, and be uttered for a fraudulent purpose, which is in fact accomplished, it has the whole effect of a fraud in annulling the contract, although the vendor did not know the statement to be false, but believed it to be true. 65 While the vendor may in some cases be deemed guilty of fraud in making statements which he does not know to be true, the mere fact that ho does not know them to be true is not, as a general rule, sufficient to fix him with fraud. There must be something to show that the statements were fraudulently made, in order to distinguish them from mere mistake. 66 It has been held, however, that a false representation founded on a mistake resulting from gross negligence is a fraud,* 7 as where the land sold had been included in a mortgage of other lands executed by the vendor, but of which, from careless reading, he was ignorant. 68 It is to be observed that the cases which decide that a vendor is not neces- sarily guilty of fraud in failing to disclose apparent defects of title or in making representations in regard to the title not true in fact, merely relieve the vendor from the imputation of fraud, but do not deny the purchaser relief if entitled thereto upon other grounds. A false representation by the vendor, however inno- cently made, if injury follows, gives the purchaser a right to compensation or rescission. 70 106. Statement of opinion. Mere expression of opinion as to the sufficiency of the title, when the means of information are equally accessible to both parties, and when no confidential rela- Holland v. Anderson, 38 Mo. 55. Bethell v. Bethell, 92 Ind. 318; Brooks v. Riding, 46 Ind. 15; Krewuon v. Cloud, 45 Ind. 273; Booher v. Goldsborough, 44 Ind. 490; Frenrel v. Miller, 37 Ind. I ; 10 Am. Rep. 62. * Rjtwle Covt. (5th ed.) 541 n., and casea cited, few of which, however, in- volved any question of fraudulent representation* of the vendor an to his title. See ante, | 103, as to effect of utatementa hy the vendor which he did Dot know to be true. "Smith v. Richards, 13 Pet. (U. S.) 38. Kiefcr v. Rogers, 19 Minn. 32. 1 Sugd. Vend. (14th ed.) 28; Bigelow on Fraud, 416. Gunby v. Sluter, 44 Md. 237. Sbadtelford v. Hundly, 1 A. K. Marsh. (Ky.) 495; 10 Am. Dec. 753. Watnon v. Baker, 71 Tex. 73; 9 S. W. Rep. 887. Vaughn v. Smith, 34 Oreg. 54; 55 Pac. 99. AGAINST VENDOR FOB DECEIT. 265 tions exist between them, do not constitute fraud on the part of the vendor. 71 A purchaser has no right to rely on the statement of the vendor that his title is good, where all the facts are laid before him, for this is no more than the statement of an opinion. To constitute fraud the vendor must falsely state, or fraudulently conceal, some fact material to the title. 72 It has been held that statements of what is the law bearing upon the sufficiency of the title, are to be treated as statements of opinion only, and even though fraudulently made, afford the pur- chaser no grounds for relief ; all persons being presumed to know the law. 73 It is easy to see, however, that the universal application of such a rule would in many cases lead to gross injustice. If the parties stand upon equal ground, and are dealing at arm's length, the rule might be salutary; but if there be such a disparity in "Hume v. Pocock, 1 L. R., Ch. App. 379. Smith v. Richards, 13 Pet. (U. S.) 26. Maney v. Porter, 3 Humph. (Tenn.) 309. Glasscock v. Minor, 11 Mo. 655. Conwell v. Clifford, 45 Ind. 395. Bond v. Ramsey, 89 111. 29. People v. Mitchell, 129 Cal. 580; 62 Pac. 118. Melicharek v. Colkins, (Cal. App.) 183 Pac. 457. Where the purchaser declared that he would not buy a tax title, and the vendor answered that he had the best kind of title, it was held that if the vendor made such declaration knowing that he had only a tax title, he was guilty of fraud. Updike v. Abel, 60 Barb. (X. Y.) 15. In a case of conflicting claims to property in which one claimant employed counsel to investigate his title, and offered as a compromise to sell that title to the other claimant, it was held that the assertions of the latter (who purchased) as to the validity of his title could not amount to a fraud on the vendor. Saltonstall v. Gordon, 33 Ala. 149. Statement by vendor that his title was good, held not to be a mere expression of opinion on his part. Buchanan v. Burnett, 102 Tex. 492; 119 S. W. 1141; 132 1 Am. St. Rep. 900. "Conwell v. Clifford, 45 Ind. 393. Fellows v. Evans, 33 Oreg. 30; 53 Pac. 491. Morse v. Duryea, 174 Ky. 234; 192 S. W. 477. The mere expres- sion of an opinion by the vendor as to the goodness of his title, in the course of trade, when all the facts in relation to the title are fully and fairly dis- closed, and when the vendee agrees to take the title at his own risk without recourse on the vendor, is no fraud or ground of relief to the purchaser if the title should prove bad. The statement that an adverse claim against the property cannot be maintained, is, of course, a statement of opinion only. Jasper v. Hamilton, 3 Dana (Ky.), 284. But to state that there are no adverse claims against the property would obviously be a most important statement of fact, and if made with knowledge of its falsehood, would, it is apprehended, entitle the purchaser to relief. :3 Fish v. Cleland, 33 111. 243, where it was said: "A representation of what the law will or will not permit to be done is one on which the party to 34 266 MAKKETAKLK TITLE TO BEAL ESTATE. their respective positions as to give the vendor an undue advan- tage; e. g., if the vendor were a conveyancer, and the purchaser an ignorant man, the latter would seem entitled to relief. If the validity of the title depends upon a question of law, of course the statement of the vendor as to the goodness of the title would be a mere matter of opinion on his part. But a statement that there are no incumbrances on the property would be a state- ment of fact, and if falsely made would entitle the purchaser to relief. 74 So, also, if the vendor assert that the title is good when he knows of a paramount title outstanding in a third person. 70 If the vendor states material fact as of his own knowledge and not as a mere matter of opinion, but of which he has no knowledge what- ever, he is guilty of fraud. 76 It seems, however, that there must whom it is made has no right to rely; and if he does so it is his own folly. and he cannot ask the law lo relieve him from the consequences. The truth or falsehood of such a representation can be tested by ordinary vigilance and attention. It is an opinion in regard to the law and is always under- stood as such." This case was a suit by the vendor to rescind the contract on account of the purchaser's fraud, but it is apprehended that the principle declared would be fully as applicable to a case of representation affecting the title. See, also, Upton v. Tribilcock, 91 U. S. 50; approving Fish v. Cleland, supra, and citing further Star v. Bennett, 5 Hill (N. Y.), 303; Lewis v. Jones, 4 B. & C. 506; Rashall v. Ford, L. R., 2 Eq. 750, to the gen- eral proposition that a statement of what the law is by any person, is a statement of opinion only. "Glasscock v. Minor, 71 Mo. 655. Loucks v. Taylor, 23 Ind. App. 245; 55 X. E. 238. In Jasper v. Hamilton, 3 Dana (Ky.), 284, the court said: " \\V cannot admit that the expression of an opinion by the vendor as to the goodness of his title in the course of trade, when the vendee agrees to take it at his own risk without recourse or responsibility on the vendor, is such fraud as to justify a rescission of the contract, if the title should prove inferior to an adverse interfering claim. If all the facts in relation to his title are fairly and fully disclosed, the vendee is furnished with the means to form his own opinion or to obtain the opinion of others, and if he fails to do so and purchases without recourse, it is his own folly and he has no ju*t ground to complain. Whether a title is paramount and -superior to an adverse conflicting claim is a question of lav often of the most abstruse and critical import, and which, the facts being fairly developed, is placed as much within the competency of the vendee to solve, or to procure others to do o, aa within that of the vendor." n Spenc v. Durein, 3 Ala. 251. "Kerr on Fraud (Hump), 53, and cases cited; Rawle Covt. | 322. Adams v. Jarvh, 4 Bing. 68, BEHT, C. J., saying: " He who affirms, either what he does not know to be true, or knows to be false, to another's prejudice and his ACTION AGAINST VENDOR FOR DECEIT. 267 be some evidence of fraudulent intent on the part of the vendor other than the mere want of knowledge of the truth of his asser- tions. 77 If the vendor make definite statements for the purpose of pre- venting the purchaser from making inquiries which would have shown his representations to be false, he is guilty of fraud, and the contract may be rescinded, or an action for damages maintained by the purchaser, 78 as, where the vendor falsely states the amount of liens on his property. 79 This rule, carried to its furthest extent, must neutralize those decisions which hold that the purchaser is not entitled to relief where he has the "means of knowing," or " sufficient means of knowing," the falsity of the vendor's repre- sentations at the time they were made, since it is inconceivable that a vendor would make a false statement respecting the title for any purpose other than to prevent an examination of the title by the purchaser, the only "means of knowing" the fraud of the vendor. 80 There can be, of course, no fraud in an innocent mis- representation by mistake, though the vendor may be deemed guilty of constructive fraud and subjected to an action at law for damages if he declare that to be true of which in fact he has no knowledge. 81 In equity the contract may always be rescinded if there be a mutual mistake as to the title. 82 own gain, is both in morality and law guilty of falsehood and must answer in damages." See, also, Munroe v. Pritchett, 16 Ala. 787; 50 Am. Dec. 203. Shackelford v. Hundley, 1 A. K. Marsh. (Ky.) 500; 10 Am. Dec. 753. Davis V. Heard, 44 Miss. 51; Halls v. Thompson, 1 Sm. & M. (Miss.) 485; Rimer v. Dugan, 39 Miss. 477; 77 Am. Dec. 687. "Ante, 105; Rawle Covts. (5th ed.) 232; Kerr on Fraud 19, and cases cited. 78 Campbell v. Whittingham, 5 J. J. Marsh. (Ky.) 96; 20 Am. Dec. 241, where the purchaser was induced to omit an examination of the title by the assertion of the vendor that the title was good. See, also, Parham v. Randolph, 4 How. (Miss.) 451; 35 Am. Dec. 403. Burwell v. Jackson, 5 Seld. (N. Y.) 545. "Thomas v. Coultas, 76 111. 423. Kenny v. Hoffman, 31 Va. 442. Brown V. Herrick, 99 Pa. St. 220. 80 Ante, 104. 81 Munroe v. Pritchett, 16 Ala. 787; 50 Am. Dec. 203. 82 1 Story Eq. 142. Hitchcock v. Giddings, 4 Price, 135. Wood v. John- son, 3 Conn. 597. Davis v. Heard, 44 Miss. 51. Bradley v. Chase, 22 Me. 511. Armistead v. Hundley, 7 Grat. (Va.) 64. Sanford v. Justice, 9 Mo. 865. 268 MAKKETABLE TITLE TO KKAI. ESTATE. Certain acts and conduct of the vendor other than misrepre- sentation or non-disclosure of facts respecting the title may amount to fraud ; e. g., it is a fraud in the vendor knowingly to deliver a conveyance without covenants for title when the contract provides for covenants ; w or to threaten to resell the premises together with the purchaser's improvements unless the purchaser would accept a conveyance with special warranty, he being entitled to general covenants. 84 The right of action, however, in these cases does not necessarily grow out of an inability on the part of the vendor to convey a good title. 107. PLEADING AND PROOF. In every pleading by the pur- chaser, the gravamen of which is the vendor's fraud, the facts con- stituting the fraud must be expressly alleged. A general allegation of fraud is insufficient. 85 The purchaser must also aver that he relied on and was deceived by the vendor's fraudulent representa- tion. 8 * If facts showing fraud are alleged it is not necessary to allege fraud in express terms; the law implies the fraudulent intent. 87 Nor in an action on the case for fraud and deceit is it necessary to allege a scienter on the part of the vendor, for if the vendee be injured by a representation which is not >true in fact, his right of action is complete, whether the vendor was or was not aware of the falsity of his statement. The vendor is con- structively guilty of fraud if he allege a thing to be tme of which he has in fact no knowledge. 88 It has been held that the plaintiff must allege that the matters in respect to which the false represen- tations were made by the defendant, were such as lay peculiarly within his knowledge ; otherwise no cause of action would appear in consequence of the rule maintained by some cases, that the purchaser has no right to rely upon the representations of the "Bethell v. Bethell, 92 Ind. 318. "Denston v. Morris, 2 Edw. Ch. (N. Y.) 37. "Marsh v. Sheriff, (Md.) 14 Atl. Rep. 664. Luckie v. McGlasuon, 22 Tex. 282. "Pryse v. McOuire, 81 Ky. 611. Lanier v. Hill, 25 Ala, 559. Joaselyn v. Edwards, 57 Ind. 212. Saund. PI. 527. Munroe v. Pritchett, 16 Ala. 787; 50 Am. Dec. 203. Britt v. Marks, (Ore*.) 25 Pac. Rep. 630; Rolfes v. Rusell, 5 Oreg. 400; Denning v. Cretson, Oreg. 241. ACTION AGAINST VENDOR FOR DECEIT. 269 vendor in regard to matters upon which he might have obtained information from other sources, such as the public records. 89 The burden is on the vendee to prove the fraud which he alleges. 90 Fraud is never presumed, though of course a prima facie case of fraud may be established, that is, a state of facts may be shown which, unexplained, will be held to amount to fraud. 91 The mere existence of defects in the title is not sufficient, however, to raise a presumption of fraud on the part of the vendor. 92 9 Bianconi v. Smith, (Ariz) 28 Pac. Rep. 880, where it was also held that a purchaser failing to examine the title cannot complain of the vendor's false and fraudulent representations a rule that may well excite question. See ante, p. 260. 90 Story Eq. Jur. 200. Holland v. Anderson, 38 Mo. 55. Williams v. Thomas, 7 Kulp (Pa. Co. Ct. Rep.) 371. 91 Green v. Chandler, 25 Tex. 148. **Harland v. Eastland, Hard. (Ky.) 590, semble. OF AFFIRMANCE BY PROCEEDINGS AT LAW AFTER THE COX- TRACT HAS BEEN EXECfTED. ACTION FOR COVENANT BROKEN. CHAPTER XII. OF THE COVENANT FOR SEISIN. FORM AND EFFECT. 108. WHAT CONSTITUTES A BREACH. 109. ASSIQNABILITY OF THIS CONVENANT. In general. 110. Covenant of seisin does not run with the land. 111. Contrary rule. Doctrine of continuing breach. 112. Possession must have passed with covenantor's deed. 113. When Statute of Limitations begins to run. g 114. Conflict of laws. 11">. MEASURE OF DAMAGES. 116. BURDEN OF PROOF. 117. PLEADINGS. 118. 10S. FORM AND EFFECT. A covenant for seisin is usually expressed by the formula " that he, the said (vendor), is lawfully seised of the said premises," l but, as a matter of prudence in some of the States, and of necessity in others, it is customary for the grantee to require a covenant that the grantor " is seised of an absolute, perfect and indefeasible estate in fee simple." This is to avoid the rule established by those cases which hold that a covenant that the grantor is " lawfully seised " is satisfied by a mere seisin in fact, whether with or without right.* In every case in which the grantee is entitled to require a con- veyance with full covenants for title, he should, under no circum- stances, omit the insertion of a covenant for seisin. The principal 'Rawle Covt*. (5th ed.) ft 21. n. 3. Wher the grantor covenanted that he WBH " signed " of a good estate, etc., it was held that a court of law could not read " wined " for " Kigned," no a* to make the sentence operative as a covenant of neiain. It wan intimated that relief mijfht be had in equity. Hagler v. Simp-i.ii. 1 Binbee (N. Car.), 384. Pout, | 109. thU chapter. A covenant that the grantor "is seined in fee of all xaid premise* " !H Hiifflcient as a covenant of seisin. Ackley & Co. v. Hunter & Co., 154 Ala. 416; 45 So. 000. [270] OF THE COVENANT FOB SEISIN. 271 reason for inserting that covenant is to afford the grantee relief in those cases in which there has been a. failure of the title, but in which the rights of the adverse claimant have never been asserted, and in which there has been no eviction of the grantee from the premises. 3 Thus, the rule is general that a grantee who has accepted a conveyance with covenants for life, cannot detain the unpaid purchase money in case of a total failure of the title, unless he has a present right of action upon the covenants in question, and the mere failure of title gives him no right of action upon those covenants, except that of seisin, unless there has been an actual or constructive eviction from the premises. The rule generally prevailing in the United States is that a covenant that the grantor is "lawfully seised" is the same as if he had cove- nanted that he was rightfully seised of an indefeasible estate in fee simple, 4 and is to be treated as " an assurance to the purchaser that the grantor has the very estate in quantity and quality which he purports to convey." 5 Hence, it follows that there need be no eviction or disturbance of the grantee's possession to constitute a breach of the covenant of seisin. The covenant is broken as soon as made if the title be not such as the covenant describes. 6 3 Wilder v. Ireland, 8 Jones (N. C.) L. 90, Avhere the action was for breach of the covenant for quiet enjoyment, and the breach alleged was that the grantor had only a life estate instead of a fee in the premises. There was a judgment for the defendant, the court saying that it was the misfortune of the grantee that he did not have the deed drawn by a lawyer, who would have inserted a covenant of seisin. 4 Parker v. Brown, 15 N. H. 176, disapproving Willard v. Twitchell, 1 X. H. 175. Gilbert v. Bulkley, 5 Conn. 262; 13 Am. Dec. 57. Catlin v. Hurlburt, 3 Vt. 403; Richardson v. Dorr, 5 Vt. 20; Mills v. Catlin, 22 Vt. 106. Kincaid v. Brittain, 5 Sneed (Tenn.), 119. Joiner v. Trust Co., 33 Okl. 266; 124 Pac. 1073. In Fitzhugh v. Croghan, 2 J. J. Marsh. (Ky.) 429; 19 Am. Dec. 139, it was said that the covenant of seisin was broken if the vendor had not the possession, the right of possession and the legal title. This being so, the covenant would be broken if the grantor had only an equitable title, though he was in possession, had paid the purchase money in full and was entitled to call for a conveyance. A covenant that the grantor is seised in fee simple implies that he has the whole estate in the premises and not merely a good right or title to such interest or estate as he has therein. Mills v. Catlin, 22 Vt. 98. Platt Covts. 306; Howell v. Richards, 11 East, 641, language of Lord ELLENBOROUGH. Mills v. Catlin, 22 Vt. 106. Recohs v. Younglove, 8 Baxt. (Tenn.) 385. Mercantile Trust Co. v. So. Park Residence Co., 94 Ky. 271. Post, 109. 272 MARKETABLE TITLE TO BEAL ESTATE. It is a rule of property in several of the States that a covenant that the grantor is " lawfully seised " does not require that the grantor should have an indefeasible estate, and is satisfied by an actual though tortious seisin, 7 provided it be under claim of title. 8 The rule thus announced applies in but few of the States and has been distinctly repudiated in others. 9 The principal reason assigned for the rule is that the true interpretation of such a covenant according to the intent of the parties, is merely that the grantor is in jxjssession within the meaning of the champerty acts, or those which prohibit the conveyance of pretensed titles. 10 This reasoning is by no means satisfactory, in view of those cases which hold that a champertous deed is void as between the parties them- selves," and of course k has no application in those States in which the conveyance of pretensed titles is not forbidden. Nor would that reasoning seem less objectionable in those jurisdictions in which a champertous deed is held valid as between the parties; for it is hardly to be conceived that a grantee would require a 1 Marston v. Hobbs, 2 Mass. 433 ; 3 Am. Doc. 61 ; Bickford v. Page, 2 Mass. 455; Twambly v. Henley, 4 Mlass. 442; Bearce v. Jackson, 4 MBRH. 410; Slater v. Rawson, 6 Met. (Mass.) 444; Raymond v. Raymond, 10 Gush. (Mass.) 140; Follett v. Grant, 5 Allen (Mass.), 174. Griffin v. Fairbrother, 1 Fairf. (Me.) 95; Boothlpy v. Hatliaway. 20 Me. 251; Baxter v. Bradbury, 20 Me. 260; 37 Am. Dec. 49; Wilson v. Widenham, 51 Me. 567. Watt* v. Parker, 27 Ind. 228. Scott v. Twiss, 4 Neb. 133. Backus v. McCoy, 3 Ohio, 211; 17 Am. Dec. 585; Wetzel v. Richcreek, (Ohio) 40 N. E. Rep. 1004. Wheeler v. Hatch, 3 Fairf. (Me.) 389. The grantor was in possession in this case, but did not claim title, and it was held that the covenant of i'iin wax broken. See Parker v. Brown, supra, p. 254, and cases cited in same note. Also, Abbott v. Allen, 14 Johns. (N. Y.) 253; 7 Am, Dec. 554; Fowler v. Poling, 2 Barb. (N". Y.) 303; Hamilton v. Wilaon, 4 Johns. (N. Y.) 72; 4 Am. Dec. 253. FurnitM v. Williams, 11 111. 229; Brady v. Spurck, 27 111. 481; Baker v. Hunt, 40 111. 264; King v. Gilson, 32 111. 348; 83 Am. Dec. 269; Christy v. Ogle, 33 III. 295; Fraxer v. Supervisors, 74 111. 291. Kincaid v. Brittain, 5 Snml (Tenn.), 119. Downer v. Smith, 38 Vt, 464; 76 Am. Dec. 148. Brandt v. Fonter. 5 Clarke (la.), 295; Zent v. Picken, 54 Iowa, 535. Lock wood v. Sturtevant, 6 Conn. 385; Davis v. Lyman, 6 Conn. 249, and notes. Lot v. "I I, ..MM-. 1 Penn. (N. J. L.) 297; 2 Am. Dec. 354. Pollard v. Dwight, 4 Cranch (IT. 8. S. C.), 421. Dale v. Shively, 8 Kans. 276. Mercantile Trust Co. v. So. Park Residence Co., 94 Ky. 271. Clapp v. Herdmann, 25 111. App. 508, CUM* cited, not* 7 above. "William,, v. llogan, Meigs (Tenn.), 189. OF THE COVENANT FOE SEISIN. 273 covenant in effect merely that the grantor was in possession, when in most instances he could without delay or trouble inform him- self as to that fact, and that he should be satisfied with such a covenant instead of requiring one that would protect him against latent defects in the title. In those States, however, in which the rule in question has become firmly established and recognized as a rule of property, the reasons which have led thereto, and even the fact that the rule itself flows from an arbitrary con- struction of the covenant, are comparatively unimportant, so long as that rule remains stable and fixed, and with reference to which the parties may safely contract. But in those States, if any, in which the question has not been settled by judicial decision or statutory enactment, it is apprehended that the courts will be slow to give the covenant of seisin the interpretation established by that rule. It seems that the rule under consideration is limited strictly in its application to' those cases in which the grantor covenants that he is "lawfully seised." Thus it was held that a covenant that he was seised of a " perfect, absolute and indefeasible estate of inheritance " was not satisfied by an actual seisin, the grantor in fact having no title. 12 Covenants of seisin are by statute in some of the States implied from the operative words "grant, bargain and sell" in a conveyance. 13 But in other States no such implication is 12 Strong v. Smith, 14 Pick. (Mass.) 132, the court saying: " The defendant covenanted that he was seised of a perfect, absolute and indefeasible estate of inheritance in fee simple, and he clearly had no such title; so that his cove- nant was broken on the delivery of the deed. He undertook to convey, and the grantee agreed to purchase, an indefeasible estate; and the defendant had no such estate to convey. The intended purchase, therefore, has wholly failed. Indeed, it may well be doubted whether the defendant had any title sufficient to sustain a common covenant of seisin." See, also, Price v. Johnson, 4 Vt. 253. Prescott v. Trueman, 4 "Mass. 631; 3 Am. Dec. 249. Garfield v. Wil- liams, 2 Vt. 328. 13 Memmert v. McKeen, 112 Pa. St. 315; so in Missouri, Schnelle Lumber Co. v. Barlow, 34 Fed. Rep. 853. Jones v. Gallagher, 54 Okl. 611, 154 Pac. 552. Munford v. Kent, 154 Mo. 36. 55 S. W. 271. A covenant of seisin will be implied from the words " bargained, sold and granted " in the grant- ing part of a deed, under a statute giving that effect to the words "grant, 35 274 MARKKTABLK TITI.K TO HEAL ESTATE. made, 14 and none existed at common law. The question whether a deed made in another State contains a covenant of seisin must be determined by the law of that State. 15 The right of action for a breach of the covenant of seisin is per- sonal and passes to the personal representative and not to the heir. 18 But if no actual damage was sustained by the ancestor, though the breach transpired in his lifetime, the right of action goes with the land to the heir, provided the actual damage falls upon him, by loss of the land. 17 100. WHAT CONSTITUTES A BREACH OF THE COVENANT OF SEISIN. The covenant of seisin is broken by any lessening of the corpus or physical extent of the property conveyed, 18 or by any diminution of the quantity of estate therein, as if the interest conveyed turn out to be a life estate instead of a fee simple. 19 It has been held that the covenant was not broken by the conveyance bargain and sell." Foote v. Clark, 102 Mo. 394; 14 S. W. Rep. 08. The habendum clause does not qualify nor restrict the covenant of seisin implied from the use of the words " grant, bargain, and sell." Coleman v. (Mark. SO Mo. App. 339. In Alabama, the covenant of seisin implied from the words "grant" etc., is limited to the acts of the grantor and those claiming under him. Mackintosh v. Stewart, 181 Ala. 328, 61 So. 956. 14 Front v. Raymond, 2 Caines (N. Y.), 188; 2 Am. Dec. 228. Aiken v. Franklin. (Minn.) 43 X. W. 839. "Jackson v. Green, 112 Ind. 341; 14 N. E. Rep. 89. 'Com. Dig. Admr. B. 13; Butler N. P. 158. Lucy v. Levington, 1 Vent. 175; S. C., 2 Lev. 26. Hamilton v. Wilson, 4 Johns. (N. Y.) 72; 4 Am. Dec. 253. "2 Sugd. Vend. 577. Kingdon v. Nottle, 1 M. & S. 355. King v. Jones, 5 Taunt. 418; Orme v. Broughton, 10 Bing. 353. Lowrey v. Tilleny, 31 Minn. 500; 18 N. W. Rep. 452. u Wilson v. Forbes. 2 Dev. (X. C.) 30. holding that the covenant of seisin in broken if the grantor has no right to sell all the land embraced within the boundaries mentioned in his deed. So, also if the grantor of a mill-site have no right to raise the dam to the height specified in the deed. Walker v. Wilson, 13 Wis. 522. So, also, if the covenator have not all the shares of a water-right that his deed purports to convey. Seyfried v. Knobluch, 44 Colo. 86. 96 Pac. 993. "Frazer v. Supervisors, 74 111. 291. Mixon v. Burleson, (Ala.) 82 So. 98. Lorkwood v. Sturdevant, Conn. 373. A covenant that the grantor is seised of an undividrd moiety of an estate is broken if there has !>een a judicial partition of the premises, though without the knowledge of the grantor, and though he conveyed only his share of the land. Morrison v. McArthur, 43 M*. 5fl7. The covenant of seisin is broken if the grantor has neither the pOMMSion, the right of possession, nor the right to the legal title at the time OF THE COVENANT FOR SEISIN. 275 of an estate merely defeasible upon the happening or non-happen- ing of some future event, 20 such as the disaffirmance of a convey- ance executed during the minority of the grantor, 21 but the better opinion seems to be that the covenant of seisin is satisfied only by the transfer of an indefeasible title, and that it is technically broken as soon as made, if the title be from any cause defeasible ; 22 of the conveyance. Coleman v. Clark, 80 Mo. App. 339; or if the title be in a trustee instead of the grantor. Jones v. Haseltine, 124 Mo. App. 674, 102 S. W. 40. 20 Pollard v. Dwight, 4 Cranch (U. S. S. C.), 421. Van Nbstrand v. Wright, Lalor's Supp. (N. Y.) 260; Coit v. McReynolds, 2 Rob. (N. Y.) 658. Wait v. Maxwell, 5 Pick. (Mass.) 217; 16 Am. Dec. 391, where the grantor derived title under a conveyance by a person non compos mentis. The fact that the title of the grantor was acquired under forclosure proceedings in which the mortgagor, a non-resident, was served by publication, and that the title may be attacked by heirs of the mortgagor within the statutory period for showing cause against the decree is no breach of the covenant of seisin where the existence of such heirs is not certain. Zarkowski v. Schroeder, 75 N. Y. Supp. 1021; 71 App. Div. 526. 21 Bool v. Mix, 17 Wend. (1ST. Y.) 132; 31 Am. Dec. 285. 22 Shep. Touchstone, 170; 2 Sugd. Vend. (8th Am. ed.) 286 (610) ; 2 Washb. Real Prop. (4th ed.) 457 (657) ; 4 Kent Com. (llth edv) 555 (471) ; Rawle Covts. (5th ed.) 58. See, generally, also, cases cited supra this chapter and " Covenant against Incumbrances," subd. " What Constitutes Breach." Abbott v. Allen, 14 Johns. (N. Y.) 253; 7 Am. Dec. 554; Adams v. Conover, 87 N. Y. 422; 41 Am. Dec. 381. Downer v. Smith, 38 Vt. 464; 76 Am. Dec. 148; Clark v. Conroe, 38 Vt. 471; Clement v. Bank, 61 Vt. 298; 17 Atl. Rep. 717. Brandt v. Foster, 5 Cl. (Iowa) 295; Van Wagner v. Van Nostrand, 19 Iowa, 427; Zent v. Picken, 54 Iowa, 535. Bottorf v. Smith, 7 Ind. 673. Frazer v. Board of Supervisors, 74 111. 282; Brady v. Spurck, 27 111. 481; Christy v. Ogle, 33 111. 295. West v. Stewart, 7 Pa. St. 122. Hall v. Gale, 20 Wis. 293. Wilder v. Ireland, 8 Jones L. (N. C.) 90. Kincaid v. Brittain, 5 Sneed (Tenn.), 119. Lamb v. Danforth, 59 Me. 322; 8 Am, Dec. 426; Montgomery v. Reed, 69 Me. 510. Pollard v. Dwight, 4 Cranch (U. S.), 421. Lot v. Thomas, 1 Penn. (1ST. J. L.) 297. Davis v. Lyman, 6 Conn. 249. Cent. Appalachian Co. v. Buchanan, 90 Fed. 454; Bolinger v. Brake, 4 Kan. App. 180; 45 Pac. 950. Jewett v. Fisher, (Kan. App.) 58 Pac. 1023. Recent cases. Hayden v. Patterson, 39 Colo. 15, 88 Pac. 437; Seyfried v. Knoblauch, 44 Colo. 86; 96 Pac. 993; Rennie v. Gibson, (Okl.) 183 Pac. 483; Riddle v. Hudson, (Okl.) 172 Pac. 921; Faller v. Davis, 30 Okl. 56; 118 Pac. 382; Eames v. Armstrong, 142 1ST. C. 506; 55 S. E. 405; Crowell v. Jones, 167" 1ST. C. 386, 83 S. E. 551 ; Brown v. Carpenter, 99 Wash. 227? 169 Pac. 331; Hilliker v. Rueger, 228 X. Y. 11; 126 N. E. 266; Veit v. McCauslan, 142 N. Y. Supp. 281; 157 App. Div. 335; Jeffords v. Dreisbach, 168 Mo. App. 577; 153 S. W. 274. A covenant in a deed that "I hold said premises by good and perfect title " is broken as soon as made if the grantor's title is not perfect. Webb v. Wheeler, 80 Neb. 438; 114 N. W. 636. 276 MARKETABLE TITLE TO REAL ESTATE. leaving the fact that the title may never be defeated, to be con- sidered only with reference to the damages to be awarded to the grantee. It is not necessary to show an eviction, or disturbance of the possession, of the covenantee. 28 The covenant of seisin, according to the weight of authority, is broken if at the time of the conveyance the premises be in the possession of one claiming adversely to the grantor. The statutes prohibiting the sale of pretensed titles, and declaring all such con- veyances to be champertous, do not affect the validity of the con- veyance as between the grantor and grantee. 24 The covenant of seisin is broken if there be no such land in existence as the grantor undertakes to convey. 25 So also, if at the time of the conveyance "Hilliker v. Rueger, 228 X. Y. 11: 126 N. E. 266. "Harvey v. Doe, 23 Ala. 637; Abernathy v. Boazman, 24 Ala. 189; 60 Am. Dec. 459, citing Jackson v. Deraont, 9 Johns. (X. Y.) 55; 6 Am. Dec. 259; Livingston v. Iron Works, 9 Wend. (X. Y.) 510; Van Hoescn v. Benham, 15 Wend. (X. Y.) 164. Den v. Geiger, 4 Halst. (X. J.) 225. Edwards v. Roys, 18 Vt. 473. Adkins v. Tomlinson, 121 Mo. 487. Stearns v. Jewel, 27 Colo. App. 390, 140 Pac. 846. A covenant of seisin is broken by railway occupation of part of the premises as a right of way. Wadhams v. Swan, 109 111. 46. The proposition stated in the text is not without opposing authority. Thus in Thomas v. Perry, Pet. (C. C. U. S.) 39, it was held that a deed did not convey lands which were out of the possession of the grantor at the time the deed was made, and that consequently a covenant of seisin contained in the deed was not broken as to those lands. See, also, Williams v. Hogan, Meigs (Tenn.), 189. In Tennessee, under a statute providing that " no person shall agree to buy, or to bargain or sell, any pretended right or title in lands ' * where the seller, etc., has not * * been in actual posses- sion,' it was held that such a sale was void even as between the parties, the court saying that to give a contrary construction to the statute would be to permit the buyer of dormant claims securely to take a deed or covenant from the claimant, and if he failed to recover by a devise, in the name of such claimant to indemnify himself by a suit against his vendor, and that the effect would be to encourage and not to suppress the spirit and practice of champerty. Williams v. Hogan, Mcigs (Tenn.), 189. See, also, Whittaker v. Kone, 2 Johns. Cas. (N. Y.) 58, and note. A covenant for title is not broken by allowing the adverse possession of a stranger to ripen into title under the statute of limitations. Schwartz v. Jones, 57 Tex. Civ. App. 603; 122 8. W. 956. But see Mackintosh v. Stewart, 181 Ala. 328; 61 So. m, * Ha- ford v. Pearson, 9 Allen (Mass.), 389; 85 Am. Dec. 764, reversing the court below, which had held that there could be no breach of the covenant when there wan no land to which the covenant could attach. O* THE COVENANT FOB SEISIN. 277 the grantor does not own such things fixed to the freehold as would pass by a conveyance of the land if he owned them. 26 Neither a judgment nor a mortgage, 27 nor a mere incumbrance, 28 such as an outstanding term of years, 29 nor an easement in the premises, 30 nor a prior void and unenforcible conveyance of the land, 31 would amount to a breach of the covenant of seisin, since none of these operate a divestiture of the grantor's technical seisin. A right of dower, contingent 32 or consummate, 33 is an incumbrance within the foregoing rule. Nor is this covenant broken by the existence of a highway over the land granted, 34 since the freehold still remains in the owner of the soil. Neither is the covenant M Mott v. Palmer, 1 Comst. (N. Y.) 564, where the fixtures consisted of a rail fence placed there by a tenant under an agreement by which he might remove them at pleasure. The proposition stated in the text follows from the technical definition of the word " land," which includes the soil, everything within it, and all buildings, trees, fences and fixtures upon it. 27 Reasoner v. Edmundson, 5 Ind. 394. Sedgwick v. Hollenbeck, 7 Johns. (N". Y.) 376; Stanard v. Eldridge, 16 Johns. (N. Y.) 254. The reason of this rule is that the mortgagor is regarded. as the real owner, and the mortgagee as having a chattel interest only. Runyan v. Mesereau, 11 Johns. (N. Y.) 538; 6 Am. Dec. 393, and cases cited in note. The rule above stated applies, though the prior mortgage be foreclosed and the property lost to the cov- enantee. Coit v. McReynolds, 2 Rob. (N. Y.) 655. 28 Fitzhugh v. Croghan, 2 J. J. Marsh. (Ky.) 439; 19 Am. Dec. 139; Hebler v. Brown, 41 N. Y. Supp. 441. Kuntzman v. Smith, 77 N. J. Eq. 30; 75 Atl. 1009. 23 Under a statute providing that a conveyance of lands shall be effectual without the attornment of a tenant of the grantor, it was held that the con- tinued occupancy by the tenant after the grant, did not constitute a breach of the covenant of seisin. Kellum v. Insurance Co., 101 Ind. 455. See, also, Lindley v. Dakin, 13 Ind. 388; Hebler v. Brown, 41 N". Y. Supp. 441, where the incumbrance was a lease of the mines on the premises for 99 years with an option to purchase the mineral interest. 30 Blondeau v. Sheridan, 81 Mo. 545. 31 Reed v. Stevens, (Conn.) 107 Atl. 495. 32 Massie v. Craine, 1 McC. (S. C.) L. 489; Building Co. v. Fray, 96 Va. 559, 32 S. E. 58. 33 Tuite v. Miller, 10 Ohio, 382, the court saying there was no breach though the purchaser was obliged to pay a sum in commutation of the widow's right. The purchaser should have protected himself by a covenant against incum- brances. Fishel v. Browning, 145 N. C. 71; 58 S. E. 759. 34 Boone Real Prop. 311; Tiedeman Real Prop. 851; 4 Am. & Eng. Encyc. of L. 479. Whitbeck v. Cook, 15 Johns. (N. Y.) 483; 8 Am. Dec. 272. Vaughan v. Stuzaker, 16 Ind. 338. Moore v. Johnston, 87 Ala. 220; 6 So. Rep. 50. 278 MAKKETAHLE TITLE TO HEAL ESTATE. broken by condemnation proceedings, 50 nor by an unlawful intru- sion or encroachment on the laud ; " nor by the unlawful removal of fixtures by a tenant after the expiration of his term." But the right of a third person to remove fixtures from the proj>erty conveyed, is a breach of the covenant of seisin. 88 Nor is the cov- enant broken where lands which the vendor did not own were by mistake included in the deed. 39 If the grantor were lawfully seised of the estate and had the legal title at the time of the cove- nant, no subsequent event could amount to a breach thereof. 40 Whatever subsequently occurs to defeat the title cannot affect the covenant of seisin. 41 Of course there is little occasion for the application of this principle, except in the case of a tortious dis- seisin of the covenantee, or the enforcement of a prior lien or incumbrance upon the premises. The covenant of seisin secures the grantee only against any title existing in a third person. The fact that the grantee himself was seised of the premises is not a breach. 41 He would be estopped from setting up his title against the grantor. 43 The fact that the covenantee knew of a defect in "Smith v. Hughes, 50 Wis. 620; Merser v. Oestrich. 52 Wis. 693. "Smith v. Hughes, 50 Wis. 620. Fehlaber v. Fehlahcr. 140 N. Y. Supp. 973; SO Misc. Rep. 14ft: hut, held also, that the encroachment of the covenan- tor'* buikHng on the lot of an adjoining owner, is a breach of the covenant of seisin. * Loughran v. Rosa, 45 N. Y. 792. Herzog v. Marx, 202 X. Y. 1 ; 94 X. E. 1063; 35 L. R. A. (X. S.', 976. "Maxwell v. Bank, 175 X. C. ISO; 95 S. E. 147; Pinckard v. Mortgage Co., 143 Ala. 571; 39 So. 350; Prestwood v. Carlton, 162 Ala. 327; 50 So. J.M Fit/Jiugh v. C'roghan, 2 J. J. Marsh. (Ky.) 439; 1ft Am. Dec. 139, citing 2 Saund. 171 c. Morris v. Phelpe, 5 Johns. (N. Y.) 53; 4 Am. Dec. 323. Jones v. Warner, 81 111. 343. **Coit v. MeReynolds, 2 Rob. (X. Y.) 655. This wan an action for breach of a covenant of i-i-m. The covenantor derived title under a HherilF's deed executed in pursuance of a judgment of foreclosure. The judgment wan opened while the property watt in the plaint iff'* hand-*, and a prior mortgage wan forecloned, whereby the plaintiff lout the property. "Bigelow Kittoppcl, 346. Furnens v. WilliamH, 11 111. 22ft; Beebe v. Swart- wont. 3 Oil. (111.) 162. Fitch v. Baldwin, 17 Johns. (N. Y.) 161. Horrigan v. Rice, 3ft Minn. 49; 38 X. W. Rep. 765. Holt v. Ruleati, 83 Vt. 151; 74 AtL looii; Kan.,- v. v. Armstrong, 146 N. C. 1; 5ft S. E. 165, 125 Am. St. Rep. 4341. * Fitrh v. Baldwin, 17 John*. (X. Y. > 161. the court Having: "It. can never be permitted to a person to accept a deed with covenant* of -ri-in. and then OF THE COVENANT FOR SEISIN. 279 the title when he took the conveyance, is immaterial. The object of the covenant is to protect against known as well as unknown defects in the title. 44 110. ASSIGN ABILITY OF THE COVENANT OP SEISIN. In general. A covenant for title is said to run with the land when the right to recover damages for a breach thereof passes with the land to the covenantee's grantee, or to the heir of the covenantee, instead of remaining with the covenantee in the first instance, or passing to his personal representative in the second. In either case the person -thus succeeding to the rights of the covenantee is styled "assignee;" there is, in strictness, however, no assign- ment ; the rights of the so-called -assignee being cognizable by a court of law, he being permitted to sue in his own name for a breach of the covenant. His rights spring rather from a privity of estate between himself and the covenanting parties than from any formal assignment on the part of the covenantee, 40 though of course he cannot claim those rights except under an instrument sufficient to convey the land. 46 All covenants for title run with the land until they are broken. 47 They then become a species of personal property, a chose in action, which, like any other per- sonal property, passes to the personal representative of the cove- nantee. It is -sometimes said that the covenants cease to run with the land after breach because then they are turned into mere rights of action, incapable of assignment at common law. But as the running of the covenants with the land is an incident flow- ing from privity of estate between the parties, and in no wise dependent upon any assignment of rights accrued on the part of the covenantee to his grantee, the better reason would seem to be that the covenants no longer run with- the land simply because their purposes have been accomplished, and nothing remains of turn round upon his grantor and allege that his covenant is broken, for that at the time he accepted the deed he himself was seised of the premises. If there had been fraud in- the case, and the grantee could have shown that he had been induced by undue means and in ignorance of his rights to take a deed for his own land, there might be relief in a court of equity." 44 Post, 127, 135; Knapp v. Foley, 140 Minn. 423; 168 N. W. 183. 43 Rawle Covts. .(5th ed.) 232. "Beardsley v. Knight, 4 Vt, 471; 33 Am. Dec. 193. "Eawle Covts. (5th ed.) 204. 280 MARKETABLE TITLE TO REAL ESTATE. them except a right of action for the breach, which would no more pass by an alienation on the part of the owner of the land than would a right to recover damages for a trespass committed upon the property. In those States, however, in which a remote grantee is held entitled to the benefits of the covenant of seisin and the covenant against incumbrances, he is properly described as " assignee," the conveyance of the land being construed in equity to amount to an assignment of the grantor's right of action for a breach of those covenants. 48 111. Covenant of seisin does not run with land. In most of the American States the rule is established that a covenant of seisin does not run with the land. 49 The principal reasons assigned Roberta v. Levy, 3 Abb. Pr. (N. Y.) 311. *4 Kent Com. (llth ed.) 471; 2 Sugd. Vend. (8th Am. ed.) 240 (577), notes; Rawle Covts. (5th ed.) 205. Pate v. Mitchell, 23 Ark. 590; 79 Am. Dec. 114. Hen.lrieks v. Kesee, 32 Ark. 714. Salmon v. Vallejo, 41 Cal. 481. i he cases cited to the proposition that the covenant of seisin is broken as soon as made, if the covenantor have no title; ante, 109. Greenby v. Willcocks, 2 Johns. (N. Y.) 1, LIVINGSTON, J., dissenting; 3 Am. Dec. 379. Tliis was the leading case in Xew York prior to the adoption of the Code df Civil Procedure in that State, a provision of which that every action shall be prosecuted by and in the name of the real party in interest, has been con- strued to give to a remote assignee the right to maintain an action in his own name for breach of a covenant of seisin made with one through whom he claims title. See infra, 112. Other cases in that State following the derision in Grcenby v. Willcocks, supra, are as follows: Tillotson v. Boyd, I -andf. (N. Y.) 521; Blydenburgh v. Cotheal, 1 Duer (X. Y.), 176; Hamilton v. Wilson, 4 Johns. (N. Y.) 72; 4 Am. Dec. 253; McCarty v. Leg- j-ftt. 3 Hill (N. Y.), 134; Beddoe v. Wadsworth, 21 Wend. (N. Y.) 120; Mygatt v. Coe. 124 N*. Y. 212; N. E. Rep. 611. In other states; Bickford v. Page, 2 Mass. 455; Marston v. Hobbs, 2 Mass. 433; 3 Am. Dec. 61, obiter; Slater v. Rawson. 1 Met. (Mass.) 455; TufU v. Adams, 8 Pick. (Mass.) 549; Whit in > v. Din-more, 6 Cush. (Mass.) 128; Sprague v. Baker, 17 Mass. 586; i:,irtliolome\v v. ('under. 14 Pick. (Mass.) KJ7; Bynes v. Rich, 3 Gray (Muss.) 518; Ladd v. N'oyes, 1.37 Mass. 151. It is difficult to reconcile tln-e derisions with those of the same State declaring that the covenant of sei-in is .ati*fied l>y a seisin in fart though without right ; for to reach the con- i-lu-i'iii that the covenant in i|in--tinn does not run with the land, it seems ali-olutely necessary to deride that the covenant is broken as soon as made if tlic covenantor was not at that time seised of an indefeasible estate. Miti-hell v. Warner, 5 Conn. 497. This case contains an elaborate exposition of the rule that the covenant of seisin docs not run with the land, and has been frequently cited us a leading i-a-e. l.<>e claiming through him, is considered such an estate as carries the covenant along with it." In Catlin v. Hurlburt, 3 Vt. 403, it was held that a covenantee. who had subsequently conveyed the premises, could recover on a covenant of seisin, but should not have execution, until he had lodged with the clerk of the court a release from his grantee of all right of action on a covenant of tcarranty contained in the original conveyance from- the plaintiff's grantor. Recent Cases. Sturgis v. Slocum, 140 Iowa 25, 116 N. W. 128; Knapp v. Foley, 140 Minn. 423; 108 X. W. 183; Jones v. Hazeltine, 124 Mo. App. 674; 102 S. W. 40; Falk v. Organ, 160 Mo. App. 218; 141 S. W. 1; Talbert v. Grist. 198 Mo. App. 492; 201 S. \V. 906; Coleman v. Lucksinger, 224 Mo. 1; 123 S. \V. 441, 26 L. R. A. (N. S.) 934. "Kimball v. Bryant, 25 Minn. 4f>f>, the court, by GILFILLAN. C. J., saying: "The covenant is taken for the protection and assurance of the title which the grantor assumes to pass by his deed to the covenantee, and where the eovenanteo assumes to -pass that title to another, it is fair to suppose that he intends to piwH with it, for the protection of his grantee, every assurance of it that he has, whether resting in right of action or unbroken covenant, o that if before enforcing his remedy for breach of the covenant, the covenantee execute a conveyance of the land, unless there be something to show a contrary intention, it may IK*, presumed that he intends to confer on his grantee the benefit of the covenant, so far as necessary for his pro- tevtion, that i*, that he intends to pass all his right to sue for the breach, no far as the grantee sustains injury by reason of it." In Lowrey v. Tilleny, .*M Minn. 5(0, it was held that the right of action for breach of the covenant, if not assigned by a conveyance of the land, passed to the personal repre- sentative, and not the heir. OF THE COVENANT FOE SEISIN. 285 with the land for the benefit of a grantee of the covenantee would seem to establish the better rule, inasmuch as it adds to the security of purchasers, and tends to facilitate the alienation of real property. The opposite conclusion is founded upon the old rule that a chose in action is not assignable, a rule which has long since yielded to the exigencies of a commercial age, and exists no longer, it is apprehended, in any of the American States. The doctrine that a covenant of seisin does not run with the land seems to be supported chiefly by arguments of a subtle and technical character, and the rule itself seems not to subserve any just and desirable end; whereas that construction which gives to the actual sufferer the benefit of the covenant com- mends itself to the mind as both equitable and expedient. 53 Besides, the enforcement of such a rule practically destroys the usefulness of the covenant. For so long as the covenantee has suffered no actual damage from the breach, he can recover no more than nominal damages; and after the land has passed into the hands of a remote grantee who is evicted, the right of action remaining in the covenantee will, most probably, have become barred by the Statute of Limitations, usually a short period in most of the American States. And if not barred the covenantee, hav- ing received full value for the land without reference to any defect of title, would, unless he conveyed with warranty, have sustained no actual damage himself from the breach, and consequently would seem entitled to nothing more than nominal damages, In several of the States there are now statutes which provide in sub- stance that the grantee of a covenant shall have the benefit of a covenant of seisin or against incumbrances contained in the con- veyance to his grantor. 54 The same effect has been given to 53 4 Kent Com. 471, the learned author saying that it is to be regretted that the " technical scruple " that a chose in action was not assignable does necessarily prevent the assignee from availing himself of any or all of the covenants; and that he is the most interested and the most fit person to claim the indemnity secured by them, for the compensation belongs to him as the last purchaser and the first sufferer. 64 Code Civ. Proc. N. Y. 1876, 449. Rev. St. Ohio, p. 1034, 4993. Rev. St. Me. 1841, c. 115, 16. Rev. St. Colo. 1883, p. 172. Rev. St. Ga. 1882, p. 672. Semble, Code Cal. 1876, p. 473, 6462, and Code Dak. 1883, p. 917. Under a statute permitting the assignment of all choses in action, the benefit MAKKKTABLK TITLE TO REAL ESTATE. the generally prevalent statutory provision that all actions must be maintained in the name of the real party in interest. 55 The right of the remote covenantee to sue on the covenant is not affected by the fact that one of the intermediate deeds was void. 68 The inconvenience of the American rule that a covenant of seisin does not run with the land is greatly reduced in practice by the fact that in equity the assignment of a chose in action is held to be valid, and that a court of law recognizes and enforces the rights of the assignee by permitting an action to be brought for his use and benefit in the name of the assignor, the original covenantee. 57 For this purpose a conveyance of the land will be treated as an assignment of the covenantee's right of action for a breach of the covenant. 58 This remedy, however, is cumbrous and unwieldy and has been rendered obsolete in many of the States by. a pro- vision of the Code that every action shall be brought in the name of the roal party in interest. But for the foregoing reasons, and of a covenant of seisin passes to a subsequent grantee of the premises. Seho- field v. Homestead. Co., 32 Iowa, 317; 7 Am. Rep. 197. Allen v. Little, 30 Me. 175; Stowell v. Bennett, 34 Me. 422. But the statute in Maine provides that the subsequent grantee must first execute a release to his grantor before he ran sue on the covenant of the original grantor. Prescott v. Hobbs, 30 Me. 345; Rev. St. Me. 1883, p. 097. See, also, Rev. St. Colo. p. 172; 2 Lev. Rev. Code Dak. p. 917; Hitt. Codes Cal. 1876. p. 743. Code Ga. 1882, p. 672. Code Civil Proo. X. Y. 449. Andrew v. Appel, 22 Hun (N. Y.), 433, the court Baying: "The objection existing at common law that a covenant or <-li"-r in action WIIM not assignable has been obviated by modern* legis- lation." The assignee is the real party in interest. The transfer of the land, the principal thing, should be held, to imply an assignment of all remedies under 1he covenant for a breach thereof. Ernst v. Parsons, 54 How. Pr. (X. Y.) 163; Roberts v. Levy, 3 Abb. Pr. (N. S.) 339. "Talbot v. Grist, 198 Mo. App. 492; 201 S. W. 906. "Clark v. Swift, 3 Met. (Mass.) 395, the'court saying: "As to the rule in question it interposes a formal difficulty only; and it is no actual obstruc- tion to the due administration of justice. The assignment of a chose in action is valid in equity, and courts- of law will take notice of equitable assignments made Inma fide and for valuable consideration, and will allow the assignee to maintain an action in the name of the assignor." Peters v. Bowman, 98 I*. S. 59. Collier v. Gamble, 10 Mo. 467. "Rawle Covt. ft 226. "The transfer of the land, the principal thing, -In mid be held to imply in equity an assignment of all remedies under the covenant for a brearh thereof. Krnst v. Parsons, 54 How. Pr. (N". Y.) 163; Robert* v. Levy, 3 Abb. Pr. (N. S.) 339. Newman v. Sevier, 134 111. App. OF THE COVENANT FOR SEISIN. 287 the fact that a covenant of warranty is almost invariably inserted in conveyances of land, it is provable that in every State the assignee would long since have been by statute given the benefit of the covenant of seisin. 113. Possession must have passed with the covenantor's deed. In some of the States adopting the rule that a covenant of seisin runs with the land, an important qualification of that rule exists, namely, that the land must actually pass, and possession be taken under the conveyance of the covenantor in order to give a subsequent grantor the benefit of the covenant. 59 The cases which establish this position, proceed iipon the principle that the cove- nant of seisin is intended as an indemnity against loss of the land only, and that if no land passed to the assignee there is nothing to create a privity between him and the covenantor, and conse- quently that he has no right of action on the covenant. 114. When Statute of Limitations begins to run. In those States in which it is held that an assignee or subsequent grantee is* not entitled to the benefit of a covenant of seisin, the Statute of Limitations begins to run against an action for a breach of the covenant from the time the covenant was made ; that is when the deed containing the covenant was delivered. 60 This follows neces- "Bottorf v. Smith, 7 Ind. 673; Bethell v. Bethell, 54 Ind. 428; 23 Am. Rep. 650; Craig v. Donovan, 63 Ind. 513; McClure v. McClure, 65 Ind. 485. Dickson v. Desire, 23 Mo. 162,, overruling Chauvin v. Wagner, 18 Mo. 531. Shankle v. Ingram, 133 X. C. 254; 45 S. E. 578. Backus v. McCoy, 3 Ohio, 216; 17 Am. Dec. 585; Devore v. Sunderland, 17 Ohio, 60; 49 Am. Dec. 442; Foote v. Burnet, 10 Ohio, 327; 36 Am. Dec. 90. This case contains an elaborate note upon the law of covenants of title to real estate. In Chambers v. Smith, 23 Mo. 174, it was said: "If there be a total defect of title, and the possession have not gone along with the deed, the covenant is broken as soon as it is entered into, and cannoit pass to an assignee upon any sub- sequent transfer of the supposed right of the original grantee. In such case the breach is final and complete ; the covenant is broken immediately once for all, and the party recovers all the damages that can ever result from it. If, however, the possession pass, although without right if. an estate in fact though not in law, be transferred by the deed, and the grantee have the enjoyment of the -property according to the terms of the sale, the covenant runs with 'the land, and passes from party to party, until the para- mount title results in some damage to the actual possession, and then the right of action upon the covenant rests in the party upon whom the loss falls." 80 Jenkins v. Hopkins, 9 Pick. (Mass.) 542. Bratton v. Guy, 12 S. Car. 42. 288 MARKETABLE TITLE TO REAL ESTATE. sarily from the rule that the covenant is broken as soon as made if the covenantor was not at that time seised of such an estate as the covenant describes. Consequently in all of those States the life of the covenant is measured by the statute of limitations, whether the covenantoe or his grantee has or has not been evicted from the premises. But in those States in which the covenant of seisin is held to run with the land, the statute does not begin to run until actual damage from tho breach has been sustained. 61 115. Conflict of laws. At common law the covenantee might maintain an action at law against the covenantor wherever he found him, all actions dependent upon privity of contract being deemed transitory. 62 But an assignee, his right of action being dependent upon privity of estate, could maintain an action on the covenant only in the jurisdiction in which the land lay, and the construction of that covenant was governed of course by the lex rei sitce.** One consequence of these rules is that an assignee who takes a conveyance in a State in which he would be entitled to the benefit of a covenant of seisin made with his grantor, the land lying in a State in which the contrary rule prevails, would be without remedy against the remote covenantor, in case he should lose the land. But now, by force of statutes abolishing the com- mon-law distinction between local and transitory actions, it is held in several of the States that the right of an assignee to sue upon the covenants of a prior grantor, is to be determined by the law of the place where the contract was made, and not by the lex rei tritcr.* 4 "White v. Stevens, 13 Mo. App. 240. Foshay v. Shafer, 116 Iowa 302; 89 N. W. 1100. Falk v. Organ, 100 Mo. App. 218; 141 S. W. 1; Brooks v. Mohl, 104 Minn. 404; 110 N. W. 931; 124 Am. St. R. 629; 17 L. R. A. (X. S.) 1195. But if no possession nor right passed under the conveyance, the statute begins to run at once. Sturgis v. Slocum, 140 Iowa 25, 116 N. W. 128. Chit. PI. 270; Rawle Cov. (5th ed.) $ 302. Clarke v. Scudder, Gray (Mann.). 122. Worlf-y v. I lineman, (Ind.) 33 N. E. Rep, 260, overruling Fisher v. Parry, OS Ind. 405. where the subject was carefully considered and the rule announced that "whether a deed executed in Indiana, conveying land in another State, contains a covenant of seisin that runs with the land, is to be determined hy the law of Indiana." See, also to same effect. Oliver v. Love. 59 Mi--*. 320; 21 Am. Law Reg. 000. "Bethell v. Bethcll, 92 Ind. 318; S. C., 64 Ind. 428; 23 Am. Rep. 050. OF THE COVENANT FOE SEISIN. 289 116. MEASURE OF DAMAGES. Upon a breach of the cove- nant of seisin, which results in the loss of the estate to the cove- nantee, the measure of his damages is the value of the estate at the time of the conveyance as fixed by the purchase price, in money or in property, agreed upon by the parties, 65 with interest thereon for such time as the covenantee is liable to the real owner W 4 Kent Com. 475; Rawle Covt. 158; 2 Washb. Real Prop. 728. See, also, cases cited, post, 164, as to measure of damages in case of breach of covenant of warranty. Staats v. Ten Eyck, 3 Caines (N. Y.), Ill; 2 Am. Dec. 254. This is a leading case, but is confined solely to the question of damages where ithere has been an increase in value of the land from extrinsic causes. There was no claim for damages to the extent of improvements in addition to the purchase money. Pitcher v. Livington, 4 Johns. (N. Y.) 1; 4 Am. Dec. 229; Bennet v. Jenkins, 13 Johns. (N. Y.) 50. Bender v. From- berger, 4 Dall. (Pa.) 442. This is the leading case upon the proposition that improvements made by the covenantee cannot be considered in estimating his damages for a breach of the covenant of seisin resulting in eviction or loss of the estate. Marston v. Hobbs, 2 Mass. 433; 3 Am. Dec. 61; Caswell v. Wendell, 4 Mass. 108; Simmer v. Williams, 8 Mass. 162, 222; 5 Am. Dec. 83; Bynes v. Rich, 3 Gray (Mass.), 518. Stubbs v. Page, 2 Gr. (Me.) 373; Wheeler v. Hatch, 12 Me. 389 ; Blanchard v. Hoxie, 34 Me. 376 ; Montgomery v. Reed, 69 Me. 510. Ela v. Card, 2 N. H. 175; 9 Am. Dec. 46; Parker v. Brown, 15 N. H. 176; Nutting v. Herbert, 35 N. H. 120; Willson v. Willson, 25 N. H. 229; 57 Anr. Dec. 320. Mitchell v. Hazen, 4 Conn. 495; 10 Am. Dec. 169; Stirling v. Peet, 14 Conn. 245. Catlin v. Hurlburt, 3 Vt. 403. Bacchus v. McCoy, 3 Ohio, 211; 17 Am. Dec. 585. Brandt v. Foster, 5 lo. 295; Cox v. Strode, 2 Bibb (Ky.), 275; 5 Am. Dec. 603; Merc. Trust Co. v. So. Park Res. Co., (Ky.) 22 S. W. Rep. 314. Dale v. Shively, 8 Kans. 190; Scott v. Morning, 23 Kans. 253. Furman v. Elmore, 2 Nott & McC. (S. C.) 189, n.; Pearson v. Davis, McMull. L. (S. C.) 37; Henning v. Withers, 3 Brev. (S. C.) 458; 6 Am. Dec. 589. Kincaid v. Brittain, 5 Sneed (Tenn.), 119. Tapley v. Lebeaume, 1 Mo. 550; Martin v. Long, 3 Mo. 391. Egan v. Martin, 71 Mo. App. 60; 79 Mo. App. 676. Wilson v. Forbes, 2 Dev. (N. C.) 30. Overhiser v. McCollister, 10 Ind. 44. Fr-azer v. Supervisors, 74 111. 291. Daggett v. Reas, 79 Wis. 60; 48 N. W. Rep. 127. It seems, from the case of Nichols v. Walter, 8 Mass. 243, that in a case at nisi prius in New Hampshire the plaintiff was awarded the value of the land at the time of eviction as the measure of his damages for a breach of the covenant of seisin. Recent Cases. Knapp v. Foley, 1-40 -Minn. 423; 168 N. W. 183; Seyfried v. Knoblauch, 44 Colo. 6; 96 Pac. 993; Pridgen v. Long, (N. C.) 98 S. E. 451; Norfolk & W. R. Co. v. Mtmdy, 110 Va. 422; 66 S. E. 61. Jeffords v. Driesbach, 168 Mo. App. 577; 153 S. W. 274. Brown v. Carpenter, 99 Wash. 227; 169 Pac. 331. The covenantee is entitled to recover ithe full considera- tion paid without tendering a reconveyance to the covenantor. Murphy v. 37 1_'90 MAKKETABLK TITLE TO RKAL ESTATE. for mesnc profits,** together with such necessary costs and expenses as he may have incurred in defending the title, 8 ' or in recovering possession from a squatter. 68 The increased value of the land at the time of the loss of the bargain, whether resulting from a general rise in the value of lands or from improvements made by the covenantee, cannot be considered in estimating the damages. 69 U. S. Title G'ty Co., 172 X. Y. Supp. 243; 104 Misc. Rep. 607. See, also, Parker v. Brown 15 X. H. 176. * 1 Post, g 172. If the claim of the owner of the paramount title against the covenantee for mesne profits be barred by the statute uf limitations, the covenantor will be entitled to an allowance for such profits. Mather v. Stokely, 236 Fed. 124; 149 C. C. A. 334. "Post, 173. Hilliker v. Rueger, 151 X. Y. Supp. 234; 165 App. Div. 189. But he is not entitled to costs and expenses incurred by him in a proceeding to acquire an outstanding interest in the premises. Roake v. Sullivan, 125 X. Y. Supp. 835. The damages include the expense of removing an encroachment of the property conveyed on the lot of an adjoining owner. Fehlhaber v. Fehlhaber, 140 X. Y. Supp. 973; 80 Misc. Rep. 149. Lasswell L. A I. Co. v. Langdon, (Mo. App.) 204 S. W. 812. Pitcher v. Livingston, 4 Johns. (X. Y.) 7; 4 Am. Dec. 229, where it was said by VAX XESS, J. : "One, and perhaps the principal reason why the increased value of the land itself cannot be recovered, is because the covenant cannot be construed to extend to anything beyond the subject-matter of it, that is, the land, and not the increased value of it subsequently arising from causes not existing when the covenant was entered into. For the same reason the covenantor ought not to recover for the improvements, for these are no more the subject-matter of the contract between the parties than the increased value of the land." And by KENT, C. J. : "Improvements made upon the land were never the subject-matter of the contract of sale any more than the gradual increase or diminution in value. The subject of the contract was the land as it existed and what it was worth when the contract was made." In Bender v. Fromberger, 4 Dall. (Pa.) 436, the question was considered with learning and research and an elaborate opinion was delivered, settling the rule as stated in the text. Among other reasons for the rule, given by Tn.; H MAN. C. J., were thee: "The title of lands rest as much within the knowledge of the purchaser an the seller; it depends upon writings which both parties have an equal opportunity of examining. If the seller make use of fraud, concealment or artifice to mislead the purchaser in examining the title, the case is different ; he will then be answerable for all losses which may occur." These, with Slants v. Ten Eyck, supra, are the leading cases upon the measure of damages for a breach of the covenant of seisin where the rovenantee 1m* lost the etrtate, and they have been followed in every State in which the question has arisen. OF THE COVENANT FOR SEISIN. 291 If the covenantee buys in the outstanding title, he can recover on the covenant no more than was expended by him for that purpose. 70 The foregoing rules, it is believed, prevail in every State of the Union, 71 except where the covenantor was guilty of fraud in misrepresenting his title to the covenantee. 72 The true considera- tion of the conveyance may be shown by parol evidence, and the deed may be contradicted in that respect. 73 If the consideration be not stated, and cannot be ascertained, the value of the land at the time of the conveyance will be the measure of damages. 74 The covenant of seisin is broken as soon as made, and the covenantee's right of action therein complete, if the covenantor have not, at the time of the covenant, the title therein described. 75 It is obvious, however, that if the covenantee remain in the undis- turbed enjoyment and possession of the estate he has suffered no damage from the breach. Possibly he may never be disturbed in the possession, for the real owner may never assert his rights, or they may become barred by the statute of limitations. 76 Accord- 70 4 Post, 168, Eames v. Armstrong, 146 N". C. 1 ; 59 S. E. 165; 125 Am. St. Rep. 436. If he gets in the outstanding title without expense, he is entitled only to nominal damages. Werner v. Wheeler, 127 N. Y. Supp. 158; 142 App. Div. 358. 71 The author has met with but one instance in which a different rule was applied, and that is a nisi prius decision of a New Hampshire court, referred to in the case of Nichols v. Walter, 8 M'ass. 243. In the last-mentioned case, however, the rule was enforced under circumstances involving much hardship. It appeared that the plaintiff purchased the property for $18.67 and took a conveyance from the defendant with covenant of seisin. He then sold and conveyed the premises with covenants of seisin and good right to convey (not warranty, as stated in Rawle Covt. [5th ed.] p. 224, n.) for a consideration of $113.33. His grantee, being evicted, recovered against him as damages for breach of the covenant of seisin, $555.49, the value of the property at the time of eviction ; but plaintiff, in his action on the original covenant of seisin, was adjudged to be entitled only to the consideration paid by him to the defendant, $18.67, upon the ground that the case must be governed by the Massachusetts rule of damages for a breach of that covenant. "Pridgen v. Long, (N. C.) 98 S. E. 451. "Post, 167. 74 Smith v. Strong, 14 Pick. (Mass.) 128; Bynes v. Rich. 3 Gray ('Mass.) 518. "Ante, 109. "'* If the covenantee's title be perfected by the Statute of Limitations he can recover only nominal damages for a breach of the covenant of seisin. Wilson v. Forbes, 2 Dev. (N. C.) 30. 292 MARKETABLE TITLE TO REAL ESTATE. ingly, the rule has been established by numerous decisions that the eovenantee can recover no more than nominal damages for a breach of the covenant of seisin, so long as he remains in the undisturbed possession of the estate. 77 'But if the premises are in the possession of an adverse claimant at the time of the grant, the eovenantee may recover substantial damages, not exceeding the purchase money and interest. 78 Such an adverse possession amounts also to a constructive eviction and operates a breach of a covenant of warranty. 79 If, before suit is brought by the eovenantee for a breach of the covenant, the defendant gets in the outstanding title, the plaintiff can recover only nominal damages, for the title 'Baxter v. Bradbury. 20 Me. 260: 37 Am. Dec. 49. Sable v. Brockmeier, 45 Minn. 248; 47 X. W..Rep. 794; Ogden v. Ball, 38 Minn. 237; 36 N. W. Rep. 344. Garfii'ld v. Williams, 2 Vt. 328. Hartford Ore. Co. v. Miller, 41 Conn. 133. Nosier v. Hunt, 18 lo. 212; Boon v. McHenry, 55 lo. 202; 7 X. \V. Rep. 503. Collier v. Gamble, 10 Mo. 467, 472; Bircher v. Watkins, 13 Mo. 521; Cockrell v. Proctor, 65 Mo. 41; Holla. lay v. Menifee, 30 Mo. App. 207. Egan v. Martin, 71 Mo. App. 60; 79 Mo. App. 676. Metz T. McAvoy Brewing Co., 98 111. App. 584; Building Co. v. Fray, 9fi Va. 559; 32 S. E. 5*. Small v. Reeves, 14 Ind. 164; Hacker v. Blake, 17 Ind. 97; tacey v. Manna n. 37 Ind. 108; Hannah v. Shields, 34 Ind. 272; Stevens v. Evans, 30 Ind. 39; McClerkin v. Sutton, 29 Ind. 407; Van Xet v. Kellum. 15 Ind. 264; Jordan v. Bluckmore. 20 Ind. 419. O'Meara v. McDaniel, 49 Kans. 6Sf> ; 31 Pac. Rep. 303, citing Hammerslough v. Hackett, 48 Kans. 700; 29 Pac. Rep. 1079: Danforth v. Smith, 41 Kans. 146; 21 Pac. Rep. 168. (But see Bolinger v. Brake, 4 Kans. App. 180; 45 Pac. 950.) Fehlhaber v. Ffhlhaber, 140 X. Y. Supp. 973; 80 Misc. Rep. 149; Hammerstadt v. Bakeley, 182 Iowa, 1356; 1WJ X. \V. 729. Murphy v. U. S. Title & Gty. Co., 172 X. Y. Supp. 243; 104 Misc. Rep. 607. In the early case of Harris v. Xewell, 8 Mass. 622. it was held that if the eovenantee had been -threatened with eviction, and if it appear that he must inevitably lose the estate, he may recover 4he consideration money as damages for breach of the covenant of --i-iii. and that in such a case he could not be required to lie by until he was actually evicted; the covenantor might in the manwhih> become insolvent, and the remedy on the covenant le lost. See also, .Mather v. Stokely, 21 S Fed. 764; 134 C. C. A. 442; Hilliker v. Rueger, 228 N. Y. 11; 126 N. E. 266. It -m- that the purchaser is permitted, in Michigan, to recover the purchase money paid, Jn ca*e of a breach of the covenant of seisin, though he has not been .li-turU-.l in the possession of the premises. Parkinson v. Woulds, 125 Mich. 325; 84 X. W. 292. " Adkinn v. Tomlinson. 121 Mo. 487. This rule, of course, would not obtain in tli"-- Slates in which a -al. and conveyance by the vendor when out of po*M4>M>*ion in deemed champertous. 'Pout. | 146. OF THE COVENANT FOE SEISIN. 293 so acquired enures to the benefit of the plaintiff. If the para- mount title should be gotten in after suit had been commenced, a different rule would probably apply. 80 If the covenantee sues and recovers nominal damages for breach of the covenant of seisin, the judgment will be no bar to an action for breach of the covenant of warranty if he should be afterwards evicted by the person having the better title. 81 In Missouri, a purchaser, who has taken a conveyance with a covenant of seisin, is permitted, upon discovery that the title is bad, to buy in the rights of all adverse claimants, and thus to entitle himself to recover substantial damages for the breach of the covenant to the extent of the amount so paid, with interest, provided it do not exceed the consideration money and interest. 82 This rule has been criticised upon the ground that it confounds all distinctions between the covenant of seisin and the covenant of warranty. It is difficult to perceive any inconvenience or injustice that could result from the rule, provided it be restricted to cases in which the adverse title has been hostilely asserted. If the breach of the covenant of seisin consist in the want of the entire quantity of estate or interest purported to be conveyed, as if the interest turns out to be a life estate instead of a fee, the covenantee cannot practically rescind the contract by recovering the entire purchase money as damages; he must keep the life estate. In other words, the measure of his damages will be the difference between the consideration money and the value of the life estate. 83 If it appear that title to a part of the land has 80 Sayre v. Sheffield Land Co., (Ala.) 18 So. Rep. 101. As to the right of the covenantor to require the covenantee to accept such title in lieu of damages, see, post, ' 'Estoppel-/' 215. 81 Donnell v. Thompson, 10 Me. 170; 25 Am. Dec. 216. Ogden v. Ball, 40 Minn. 94; 41 1ST. W. Rep. 453. 81 Lawless v. CoHier, 19 Mo. 480; Hall v. Bray, 51 Mo. 288; Ward v. Ash- brook, 78 Mo. 517. Schnelle Lumber Co. v. Barlow, 34 Fed-. Rep. 853. So also in North Carolina. Pridgen v. Long, 98 S. E. 451 and Oregon; Cobb v. Klosterman, 5& Oreg. 211; 114 Pac. 96. The covenantee is entitled to recover the necessary expenses incurred by him in a proceeding to perfect the title, the covenantor having refused to institute such proceeding when requested to do so. Pineland Mtge. Co. v. Trust Co., 139 Mo. App. 209; 122 S. W. 1133. 83 Tanner v. Livingston, 12 Wend. (N. Y.) 83. Pinkston v. Huie, 9 Ala. 252, 259. Post, 170. 294 MAKKETA1JLK TITLK TO KEAL ESTATE. failed, the plaintiff will lx entitled to nominal damages, though there l>e no evidence as to the value of such part. 84 Where he is entitled to substantial damages for a loss of part of the premises, the measure thereof will be such part of the whole consideration paid as the value of the part at the time of purchase, to which title failed, liears to the whole of the premises, 85 unless the con- tract fixed a price per acre, in which case the measure of damages is the contract price of the number of acres lost. 8 * If, In-fore satisfaction of a judgment for damages resulting from a breach of the covenant, the title of the covenantee is per- fWtcd by the running of the statute of limitations, a suit to enjoin the enforcement of the judgment may be maintained. 87 If the alleged breach of the covenant of seisin consist in the want of title to minerals under the soil, it is competent for the covenantor to show, in mitigation of damages, that the grantee purchased with knowledge of the fact that there had been a pre- vious severance of the title in respect to the soil and the minerals, and that the consideration paid was merely for the land without the minerals. 88 The burden is on the covenantee to prove the amount of damages sustained by him from the breach. 89 117. BURDEN OF PROOF In an action on a covenant of seisin the burden of proof has generally been held to lie with the defendant, the grantor, to show that the title is such as his cove- nant requires: * but there is a conflict of authority upon the point, M LawleH v. Evan*, (Tex.) 14 S. W. Rep. 1019. In Hilliker v. RueRer, 151 X. Y. Snpp. 234; 165 App. Div. 180, it was held that he was entitled to Muhfttantial damage*, though he had not been evicted from the part to which title had failed. * McLennan v. Prentice, (Wis.) 55 N. W. Rep. 704. Roake v. Sullivan, 125 X. Y. Supp. 835; Seyfried v. Knoblauch, 44 Colo. 86; 06 Pac. 993; Campbell v. Shaw. 170 X. C. 186; 86 S. E. 1035. "Conklin v. Hancock, 07 Ohio St. 455; 66 N. E. 518. "Mather v. Stokeley, 236 Fed. 124; 149 C. C. A. 334. "Lloyd v. Sanduaky, 203 111. 621; 68 N. E. 154. "Mixon v. nurlenon, (Ala.) 82 So. 98. " Bradfhnwr'H Caw, 9 Coke R. 60. Abbott v. Allen, 14 Johns. (N. Y.) 248; 7 Am. Dec. 554. Bircher v. Watkin*. 13 Mo. 521; Coekrell v. Proctor, 65 Mo. 41. Bcrktnaiin v. Henn. 17 Wit*. 412; Eaton v. Lyman. 30 Wi. 41; McClennan v. Prentice, 77 Win. 124; 45 N. W. Rep. 043. SwafTord v. Whipplc, 3 Or. (lo.) 261; 54 Am. Dec. 498; Schoflcld v. Homestead Co., 32 OF THE COVEXAXT FOR SEISIN. 295 some cases holding that the burden is on the plaintiff to show that the covenant has been broken, since it is to be presumed that he has knowledge of the facts constituting the breach of the covenant, and that there can be no hardship in requiring him to prove them. 91 The weight of authority probably is that the burden is on the defendant, and the rule results from a strictly technical adherence to that other rule, that the plaintiff may allege a breach by merely negativing the words of the covenant. 92 When the Iowa, 317; 7 Am. Rep. 197; Blackshire v. Homestead Co., 39 Iowa, 624; Barker v. Kulm, 39 Iowa, 392. Marston v. Hobbs, 2 Mass. 433 ; 3 Am. Dec. 61. The reason given for the rule thus stated is that the grantor is presumed to have retained the evidences of his title, and, consequently, that the facts constituting a defect in his title must lie peculiarly within his knowledge. 1 Stark. Ev. 418, 423; Abbott v. Allen, 14 Johns. (N. Y.) 253; 7 Am. Dec. 554; Swafford v. Whipple, 3 Gr. (lo.) 265; 54 Am. Dec. 498; Wooley v. Newcombe, 87 N. Y. 805. This is doubtless true of the English practice where the grantor has conveyed only a portion of his estate, but in America, where a general system of registration of conveyances and incumbrances and, generally, of all documentary matter affecting the title prevails, there would seem to be no reason to presume that the grantor is better informed as to the state of the title than the grantee. "Eames v. Armstrong, 142 N. C. 506; 55 S. E. 405. Ingalls v. Eaton, 25 Mich. 32, the court by COOLEY, J., saying: "Where parties contract con- cerning lands on the assumption that one of them is the owner, it is a reasonable presumption that they have first satisfied themselves by inquiry what the title is; and if a defect conies to their knowledge afterwards, the party complaining of it should point it out." The decision was also rested largely upon a statutory provision that the general issue is a denial of the plaintiff's cause of action, and calls upon him to prove it. No question wa raised as to the sufficiency of the plaintiff's assignment of the breach, which was in general terms, negativing the words of the covenant. The court cited as sustaining their view "Brown v. Bellows, 4 Pick. (Mass.) 193; Snevilly v. Egle, 1 W. & S. (Pa.) 480; Martin v. Hammon, 8 Pa. St. 270; Espy v. Anderson, 14 Pa. St. 312; Dwight v. Cutler, 3 Miss. 566;" 64 Am. Dec. 105. See, also, Peck v. Houghtaling, 35 Mich. 132. T/andt v. Mayor, (Colo.) 31 Pac. Rep. 524. Clapp v. Herdmann, 25 111. App. 509. In Wooley v. Newcombe, 87 N. Y. 605, it was held that under the Code of Civil Procedure of that State, providing that issue might be joined by service of an answer to the complaint, dispensing with a replication, the plaintiff, in an action on a covenant of seisin, assumed the burden of proving the breach alleged by him, that is, that the defendant was not seised of an indefeasible estate in fee simple. 9a Mecklem v. Blake, 16 Wis. 102; 83 Am. Dec. 707. It has been held that if the defendant plead that he has not broken his covenant, the plaintiff by his joinder avers that he has, and therefore assumes the burden of proving that allegation. Montgomery v. Reed, 69 Me. 513; Boothbay v. Hathaway, 296 MARKETABLE TITLE TO REAL ESTATE. purchaser obtains an injunction against the collection of pur- chase money due by him, the burden is on him to show that the title is bad. 98 So, also, in an action for the purchase money in which he sets up the defense of failure of title. 94 So long as the parties are allowed to arrive at an issue by merely affirming on the one side and denying on the other the words of the covenant, it is difficult to perceive upon what principle the burden of proof can be adjusted, other than that which casts the burden on him who has the affirmative of the issue. No difficulty can arise in fix- ing the burden of proof in an action for breach of the covenant for warranty, for the plaintiff must allege that he was evicted, and it devolves on him to prove that fact ; nor in an action for breach of the covenant against incumbrances, for he must set out the incumbrance constituting the breach and prove its existence. But with respect to an action for breach of the covenant of seisin, it may be doubted whether an equitable disposition of the burden of proof can be made upon the mere allegation that the defendant was or was not seised of such an estate as his covenant describes. Defects of title consist in the existence or non-existence of par- ticular facts, and to rule arbitrarily from this form of pleading that the burden of proof was upon the one party or the other wmild be in some cases to require the defendant, and in others the plaintiff, to prove a negative;' 6 that is, the non-existence of a particular fart. A solution of the difficulty would apparently 20 Me. 251. Bacon v. Lincoln, 4 Gush. (Mass.) 212; 50 Am. Dec. 765. But aa Biich an averment is no more in effort than an allegation that the defend- ant WBH not seised as he had covenanted, these decisions would seem to fall within the ohservat inn of Mr. Oreenleaf that in disposing the burden nf proof regard must be hud to the substance and effect of the issue rather than to the form of it ; for in many cases the party, by making a slight change in his pleading, may give the issue a negative or affirmative form at his pleasure. 1 Greenl. Kv. (Redf. ed.) 74. "Grantland v. Wight. 5 Munf. (Va.) 205. Lewis v. Bibb, Port. (Ala.) 84. "Stokoly v. Trout. 3 Watts (Pa.), 163. Sawyer v. Vaughan, 25 Mo. 337. Hreithaupt v . Thurmond, 3 Rich. (S. C.) 216. Zerfing v. Seelig, 14 S. Dak. W. 586. Thus if the burden was held to le upon the defendant, grantor, lie would, if the dl.jectinn to the title was the existence of a prior n.inrv.mre, be required to prove, negatively, that in> ~u.li <-i.nve\aiire o\i-ted; and if held to l- ujKin the plaintiff, grantee, and the ssible at common law to develop by the pleadings the facts con- ceived by the plaintiff to be a breach of the covenant, and to join issue upon the existence of those facts, or, the facts themselves being admitted, to determine on demurrer whether they were sufficient for the purposes alleged. The same result, it appears, may be attained under the code system of civil procedure by requiring the plaintiff to set out the particulars of his claim more fully than they appear in his complaint. 2 out the facts constituting the breach with sufficient particularity to enable the defendant to farme his defense, seems to be scarely sustained by the cases cited. In the first, Wooley v. Newcombe, 87 N. Y. 605, it was expressly held that the complaint merely negativing the words of the covenant was sufficient. In the other cases, Ingalls v. Eaton, 25 Mich. 32, and Peck v. Houghtaling, 35 Mich. 127, the declaration was in precisely the same form, and no ques- tion was raised as to its sufficiency, the court holding that the burden of proving facts constituting a breach of the covenant devolved on the plaintiff, without adverting to any question of pleading in the cause. But whether such a rule (requiring the plaintiff to state the particulars of the breach) is or is not to be deduced from the cases cited, it will scarely be denied that it would tend greatly to a more rapid and covenient determination of the rights of the parties. As was said in Ingalls v. Eaton, supra, there can lie no hardship in requiring the plaintiff to introduce, in the first place, evidence of the defects of which he complaJns, neither, it would seem, could there be any hardship in requiring him to set out the defects in the com- plaint, as was done by the plaintiff voluntarily in Sedgewick v. Hollenbcck. 7 Johns. (N. Y.) 380, when the common law system of pleading prevailed in the State of New York, and as was assumed to be his duty in Potter v. Kitrhen, 5 B ; 10 S. W. 200. Rotan v. Hays, (Tex Civ. App.) 77 S. W. 654. Warren v. Stoddart, (Idaho) 59 Pac. Rep. 540. In Alabama the words "grunt, bargain and sell" imply only a covenant against incumbrances created by the grantor. Parker v. Parker, (Ala.) 9 So. Rep. 426; Hood v. Clark, (Ala.) 37 So. 550; Heflin v. Phillips, 96 Ala. 561, 11 So. 729. A covenant against incumbrances implied from the words "convey and warrant" is of the name force and effect as if expressed at full length in the deed. Kent v. Cunt rail. 44 Ind. 452; Dalton v. Taliaferro, 101 111. App. 502. A statute in the State of Washington provides that the words " convey and warrant " in a deed shall be construed to include a covenant ntiain-t incumbrances. But if the grantor, instead of using the words, insert the usual formal covenant of warranty, such covenant wil> not be construed to include a covenant against incumbrances. Leddy v. Enos, (Wash, i 33 Pac. Rep. 503. Xo covenant against incumbrances is implied from the use of the word rjrnnl where the deed conveys only the " right, title nnd intercut " of the grantor. So. Pac. Ry. Co. v. Dore, 34 C'al. App. 521 ; 108 Pac. 147; nor where the operative words of conveyance were "give, grunt, alien, and confirm." In re Wells' Ent., 7 Cal. App. 515; 94 Pac. 856. COVENANT AGAINST INCUMBRANCES. 301 or restrained by an express covenant of special warranty contained in the same deed. 5 A covenant that the grantor will warrant and defend the title against the claims of all persons lawfully claim- ing the same, includes a covenant against incumbrances. 6 The covenant against incumbrances must not be confounded with a covenant to discharge existing incumbrances, or to do a particular thing in exoneration of the covenantee, or to indemnify him against a particular liability. Such a covenant is broken as soon as the failure to exonerate the covenantee, or to discharge the incumbrance, or to indemnify against the liability occurs, and a right to substantial damages immediately accrues thereupon with- out alleging or proving any special damage. 7 Funk v. Voneida, 11 S. & R. (Pa.) 109; 14 Am. Dec. 617. Garner v. Garner, 117 Miss. 694; 78 So. 623. 7 Lethridge v. Mytton, 2 B. & Ad. 772. Here the covenant was to discharge incumbrances on the granted premises to the extent of 19,000, and, there having been a breach, judgment for 19,000 was entered for the plaintiff, though it was not alleged or proved that he had been damnified by the breach. The court, however, observed that the defendant might, if he thought fit, go into a court of equity for an injunction against the judgment, but did not intimate an opinion as to whether the injunction could be sustained. Terrett v. Brooklyn Imp. Co., 87 N. Y. 92. But see Aberdeen v. Blackmar, 6 Hill (X. Y.), 324, where it was held that on a covenant to indemnify and save harmless, plaintiff must show that he has been actually damnified. Gardner v. Niles, 16 Me. 280, obiter, the incumbrance having been actually enforced against the covenantee. Gennings v. Xorton, 35 Me. 309, action on bond by grantor to indemnify against a particular incumbrance. Hartley v. Gregory, 9 Neb. 279. Mr. Eawle (Covts. for Title [5th ed.], 740) cites several cases to the proposition in the text, which, upon examination, appear to have been actions upon agreements by the grantee to discharge an incumbrance out of the purchase money. Williams v. Fowle, 132 Mass. 385; Furnas v. Durgin, 119 Mass. 500; 20 Am. Rep. 341. Dorsey v. Dashiell, 1 Md. 204. Trinity Church v. Higgins, 48 N. Y. 532, and others. The equity of this 'application of the rule is plainly apparent, inasmuch as a failure to discharge the incum- brance is in substance a failure to pay part of the purchase money. Such a delinquency would appear to require a sterner rule of damages than one in which the grantor had failed to provide an indemnity against a loss which had not as yet occurred. Mr. Sedgwick has criticised the rule stated in the text. Sedg. Measure of Dam. 182. A contract of indemnity against liability is held to be broken as soon as the liability occurs, and the measure of damages is the full amount of such liability. Webb v. Pond, 19 Wend. (N. Y.) 423. Rockefeller v. Donelly, 8 Cow. (N. Y.) 623; Chace v. Hinman, 8 Wend. (N. Y.) 452; 24 Am. Dec. 39. But where the obligation is that the party indemnified shall not sustain damage or molestation by reason of 302 MARKETABLE TITLE TO REAL ESTATE. If the covenant be by several persons it will be construed to extend to several as well as joint incumbranc.es. 8 120. RESTRICTIONS AND EXCEPTIONS The covenant against incumbrances may, of course, be restricted to some particu- lar incumbrance, or to the acts of some particular person, or a particular incumbrance may be excepted from the operation of the covenant. 9 When such a restriction or exception is expressed in the conveyance in clear and unambiguous terms, no difficulty will arise in the construction of the instrument, or in determining whether there has been a breach of the covenant. But much litiga- tion has resulted from agreements of that character resting alto- gether in parol, or from the use of obscure and ambiguous terms in the conveyance with respect to a particular incumbrance adverted to by the parties. 10 121. Parol agreements. It may be stated, as a general rule, that where a conveyance containing a covenant against inciim- brances has been executed by the seller and accepted by the pur- the acts or omission* of another or by reason of any liability incurred through such acts or omissions, there is no breach until actual damage in sustained. Gilbert v. Wyman, 1 Comst. (N. Y.) 563; 49 Am. Dec. 359. A covenant to indemnify and save harmless from a particular incumbrance is broken as soon as the grantee's title is extinguished by foreclosure. Dana v. Goodfellow, (Minn.) 53 X. W. Rep. 656. Duval v. Craig, 2 Wh. (U. S.) 45. In Duroe v. Evans, 101 Iowa 358; 70 N. W. 610, the deed, after recit- ing that it was subject to two mortgages, contained a covenant in print, that the premises were free from all incumbrances, followed by the written words "except as above*' and a printed special warranty to defend against all persons, followed by the written words " in, through, or by us." It was held that the special warranty did not limit the general covenant against incum- brances, and that the grantee had a right of action upon the existence of a mortgage other than the two named in the general incumbrance clause. In a ease in which the covenant excepted a mortgage for a named sum and it appeared that there were two mortgages instead of one, the 1 two aggregating that MUM. it was held that the covenant excepted both mortgages. Baker v. Bradt, 168 Mast. 58; 46 N. E. 409. "In Smith v. Abington Sav. Bank, 165 Mass. 285; 42 X. E. 1133, it was held that the exception of "the taxes assessed for the year 1893," from the covenant against incumbrances, did not include an assessment for the con- struction of a sewer, and that the grantor \va- liable on his covenant for uch aitfteftsment. The court said the exception indicated the common annual taxes for a particular year and nothing el*e, and it was immaterial that the power to levy the ewer assessment falls under the general power of taxation. COVENANT AGAINST INCUMBRANCES. 303 chaser, evidence of any contemporaneous parol agreement that such covenant should not extend to a particular incumbrance, 11 or that the grantee should assume and pay off a particular incum- brance embraced by the covenant, will not be received in an action for the breach of such covenant. 12 Xor will such evidence be received, where the conveyance was witout covenants for title, to show that the grantor orally agreed to discharge and pay off an incumbrance upon the premises. 13 Such a case is not within the rule which permits the true consideration of a written agreement "Scott v. Tanner, (Mo. App.) 208 S. W. 264; Morriss v. Hesse, (Tex. Civ. App.) 210 S. W. 710; Newmyer v. Roush, 21 Idaho 106, Pac. 464, the particular incumbrance in this case being a private road across the premises. McPherson v. Kissee, 239 Mo. 664; 144 S. W. 410. "Buckner v. Street, 5 McCrary (C. C.), 59. Raymond v. Raymond, 10 Gush. (Mass.) 141; Howe v. Walker, 4 Gray (Mass:), 318; Button v. Gerish, 9 Gush. (Mass.) 94; 55 Am. Dec. 45; Flynn v. Bourneuf, 143 Mass. 277; 58 Am. Rep. 135; Simanovich v. Wood:, 145 Mass. 180; 13 N. E. Rep. 391. Suydam v. Jones, 10 Wend: (N. Y.) 185; 25 Am. Dec. 552. Johnson v. Wal- ton, 60 Iowa, 315; 14 1ST. W. Rep. 325. Edwards v. Clark, 83 Mich. 246; 47 N. W. Rep. 112. Bingham v. Bingham, 57 Tex. 238. McKennan v. Dough- man, 1 Pen. & W. (Pa.) 417. Grice v. Scarborough, 2 Spear L. (S. C.) 650; 42 Am. Dec. 391. Long v. Moler, 5 Ohio St. 272. McClure v. Campbell, (Neb.) 40 N. W. Rep. 595. Garner v. Garner, 117 Miss. 694; 78 So. 623; Weiss v. Clamitz, 203 111. App. 246; Pierse v. Bronnenburg, 40 Ind. App. 662, 81 N. E. 739. The grantor cannot show that the grantee knew of the adverse claim under which he was evicted, and that it was agreed between the parties that the grantor should not be charged if the grantee should be evicted. Townsend v. Weld, 8 Mass. 146. Where the grantor expressly covenanted against tax liens, parol evidence was held not admissible to show an oral agreement by the grantee, before the execution of the deed, to pay off a tax lien to which his attention was called. Reagle v. Dennis, (Kan. App.) 55 Pac. 469. Parol evidence that the grantee assumed the payment of taxes on- the land, as a part of the purchase price, is admitted in Indiana. Carver v. Louthain, 38 Ind. 530. See also, O'Connor v. Enos, 56 Wash. 448 ; 105 Pac. 1039; Clark v. Baker, 91 Conn. 651; 101 Atl. 8; Preble v. Baldwin, 6 Cush. (Mass.) 549. In Burk v. Brown, 58 Ind. App. 410; 108 N. E. 252, it was held that the vendor's oral agreement to pay off and discharge an incumbrance on the property, was not merged in the vendee's acceptance of a deed 1 to the property from a third person, and that an action against the vendor for breach of the oral agreement was maintainable by the vendee. In Reds v. Epperson, 143 Mo. App. 90; 122 S. W. 353, it was held that the burden is on the covenantor to show that the covenantee assumed the pay- ment of the incumbrance. 12 Howe v. Walker, 4 Gray (Mass.), 318. Duncan v. Blair, 5 Den. (N. Y.) 196. McLeod v. Skiles, 81 Mo. 595. 304 MARKETABLE TITLE TO REAL ESTATE. to be shown by parol. -But whore the conveyance was " subject to mortgage " parol evidence was admitted to show that the grantee assumed payment of the mortgage; in such case the evi- dence is admitted, not as supplying a new term of the contract, but as explanatory of a doubtful expression employed by the parties. 14 And parol evidence will be received to show that the grantee was, in fact, indemnified against a particular incum- branee, as where other land had been conveyed to him in satisfac- tion of an existing mortgage on the premises. 15 Modifications of the foregoing general rule have been announced in several cases, which are difficult to be reconciled with that rule. Thus it has been said that parol evidence will be received, not to con- tradict the terms of a written warranty, but to show that the projKTty was taken by the purchaser subject to incumbrances which he knew to exist at the time of the purchase, though not mentioned in the deed, and though there was a warranty against. incumbrances. 1 ' The rule excluding parol evidence to show an exception from a covenant against incumbrances does not apply to cases of fraud " or mistake. 18 But the fraud or mistake oom- "Aufricht v. Xorthrup, 20 Iowa, 81. "Johnston v. Markte Paper Co., 153 Pa. St. 189; 25 Atl. Rep. 560. 'Sidder* v. Rilry, 22 111. 110, dirt., citing Allen v. Lee, 1 Ind. 58; 48 Am. Dec. 352. Leland v. Stone, 10 Mass. 459. Pitman v. Connor, 27 Ind. 337. It in submitted, with diffidence, that such evidence docs contradict the war- ranty. Leland v. Stone was a case of mistake in omitting the exception. This ca.se of Sidders v. Riley has been criticized by Mr. Rawle (Covts. for Title [5th ed.] p. 113). Such, however, seems to be the established rule in Indiana. Maris v. lies. (Ind.) 30 N. E. Rep. 152; Hendrick v. Wisehart, 57 Ind. 120; McDill v. Ounn, 43 Ind. 315; Fitzer v. Fitzer, 29 Ind. 46S. And whether or not consistent with the doctrine of merger of parol agreements in the covenants for title, it, doubtless, in many cases, effectuates the true intent of the parties. As to the rule in Pennsylvania, see post, 209. "Burkner v. Street, 5 MeCrary (U. S.), 59. Helton v. Asher, 135 Ky. 751; 123 S. W. 285. Kyle v. Febley, (Wis.) 51 N. W. Rep. 257. In this case the grantor, an ignorant woman, had been fraudulently induced to execute a deed, without excepting an outstanding lease from her covenants. Fraud i not merged in a covenant against incumbrances. Sargent v. CJuttervMi, 13 N*. IT. 473. See pout. | 270. Taylor v. Oilman, 25 Vt. 413. Here the incum- brance romplnincd of was a right in a railroad company to take gravel and earth from the granted promises. It appeared that the parties had divided between thcmMclvcs the damages that were to I* paid by the company, and had expressly agreed that the covenant should not embrace that inciimbrance, and it wa* considered that to enforce the covenant would be to assist the COVENANT AGAINST INCUMBRANCES. 305 plained of must, of course, be such as caused the omission of the true agreement of the parties from the conveyance, such as a fraudulent representation that the insertion of the exception was unnecessary, or that the instrument, in fact, contained the excep- tion, or other fraud of a like kind. It could hardly be contended that either party was guilty of fraud in taking advantage of an inadvertent omission of a part of their agreement from the instrument. 19 121-a. Conveyance "subject to" incumbrance. It fre- quently happens in the sale of real property that the purchaser agrees to pay off and discharge known incumbrances upon the premises as a part of the consideration of the sale. When such is the case the seller should be careful to see that such an agreement is fully and unequivocally expressed in the conveyance. 20 A mere recital that the grantor conveys, or that the purchaser takes, " subject to mortgage " or " subject to incumbrances " imposes no obligation upon the grantee to pay the mortgage debt or remove the incumbrance, except for his own protection. 21 The statement that grantee in a fraud. It is not easy to draw a distinction in principle between this case and any other in Avhich, for a valuable consideration, it was agreed that the covenant should not extend to a particular incumbrance, and, in which the parties failed to insert the exception in the deed. "Haire v. Baker, 1 Seld. (N. Y.) 361. Helton v. Asher, 135 Ky. 715; 123 S. W. 285. The fraud or mistake may, of course, be shown in equity, and in equitable defenses at law, very generally permitted by statute throughout the American States. 19 See the remarks of the court in Collinwood v. Irwin, 3 Watts (Pa.), 306. 20 Jones Mortg. 748; Rawle Covts. for Title (5th ed.), 88. 21 Jones Mortg. 748. Drury v. Tremont Imp. Co., 13 Allen (Mass.), 171. Belmont v. Coman, 22 X. Y. 438. Strohauer v. Voltz, 42 Mich. 444. Johnson V. Monell, 13 Iowa, 300; Aufricht v. Nbrthrup, 20 Iowa, 61. Livingston Bank v. Sailing, 66 Neb. 180; 92 1ST. W. 318. See, also, Tweddell v. Tweddell, 2 Bro. C. 154. Waring v. Ward, 7 Ves. Jr. 337. Evidence that the purchaser was familiar with the land, and that he knew its value exceeded the pur- chase price, is not admissible for the purpose of showing that he assumed the payment of a mortgage on the premises. Morehouse v. Heath, 99 Ind. 509. It seems, however, that parol evidence will be admitted to show that the incumbrance was deducted from the purchase money. See Townsend v. Ward, 27 Conn. 610. Ferris v. Crawford, 2 Denio (N. Y.) 595. Thompson v. Thompson, 4 Ohio St. 333. McMahon v. Stewart, 23 Ind. 590. Leipold v. Epler, 198 111. App. 618. 39 30() MAKKETABLK T1TLK TO KEAL ESTATE. the deed is made " subject to " designated incumbrances is often made merely for tbe purpose of preventing a breach of the cove- nant against incumbrances, and not for the purpose of charging the grantee with the incumbrance. 22 If, however, the intention of the parties that the grantee should discharge incumbrances in part payment of the purchase money appears from the whole instrument, though not expressed in so many words, it will be enforced. 23 Parol evidence will be received to show that a grantee taking " subject to " an incumbrance was by his contract obliged to pay off and discharge the same as part of the consideration. 24 But, while a conveyance " subject to " a particular incumbrance will not oblige the grantee to pay the incumbrance, except for his own protection, it will, of course, relieve the grantor from liability as to that incumbrance upon his covenant against incum- brances. 25 That expression is sufficient as a special exception from the operation of the covenant. 2 * And where there has been such an exception the covenant will not of course be broken by the existence of the excepted incumbrance. 27 Nor will the grantee be permitted to assign as a breach of the covenant against incum- brances a mortgage which he himself, for an adequate considera- tion, had undertaken to discharge. 28 But if a particular incum- brance of a named amount be excepted from the operation of the covenant, the mention of such amount will not be treated as "Van Winkle v. Earl, 26 N. J. Eq., 242. Barnett v. Keehn, 87 Wis. 154; 30 N. W. 112. Thus it has been held that " a conveyance of land expressly subject to all incumbrances " binds the grantee to pay off an ineumbrance. Skinner v. Starner, 24 Pa. St. 123. A recital in a deed that " portion of the above- described premises was set off on execution by A. against B. * * * and thia conveyance ia made subject to the incumbrance of said execution," ex- cept* such incumbrance from the grantor's covenants. Shears v. Dusenbury, 13 Gray (Mass.), 292. "Aufricht v. Northrop, 20 Iowa, 61. Gill v. Ferrin, 71 N. H. 421: 52 Atl. M "Freeman v. Foster, 65 Me. 508. Jackson v. Hoffman, 9 Cow. (N. Y.) 271; Walther v. Briggs, 69 Minn. 98; 71 N. W. 909; Hopper v. Smyser, 90 Mel. 363; 45 Atl. 206. Van Winkle v. Earl, 26 N. J. Eq. 242. "Freeman v. Foster, 55 Me. 508. Miller v. DeGraffenreid, 43 Colo. 306, 95 Pac. 941. "Pouter v. Wood, 16 Mass. 116. Watts v. Wellman, 2 N. H. 458, Reid v. Svcks. 27 Ohio St. 285. COVENANT AGAINST INCUMBRANCES. 307 mere matter of description ; it will be held a guaranty that the sum mentioned constitutes the whole amount of the incumbrance, and th covenant will be broken if the incumbrance exceed that amount. 29 It has also been held that an agreement by the grantee to pay off incumbrances might be waived by the parties, and that the grantee might, after such waiver, maintain an action for breach of the covenant, if the vendor failed to satisfy the incum- brances, or to redeem the land if sold thereunder. 30 An agree- ment by the grantee to assume payment of an incumbrance on the premises need not be contained in the conveyance to him. Such an agreement contained in an instrument of equal dignity with the deed, such as a bond, will render inoperative a covenant of warranty contained in the deed. 31 In Massachusetts it is settled that if a conveyance contain a covenant against incum- brances, excepting a particular incumbrance and also a cove- nant of warranty, the exception applies only to the covenant against incumbrance and not to the covenant of warranty, and that the excepted incumbrance, if enforced, will constitute a breach of the covenant of warranty. 32 This rule, however, has been thus qualified in that State, namely, that if the granting part of the deed describe the premises as 1 subject to an incumbrance, a cove- nant of warranty following thereafter will be limited precisely to what purported to be conveyed that is the land, subject to the 29 Smith v. Lloyd, 29 Mich. 382. Potter v. Taylor, 6 Vt. 676. Sherwood v. Wilkins, (Minn.) 52 N. W. Rep. 394. 31 Brown v. Staples, 28 Me. 497 ; 48 Am. Dec. 504. So generally, it seems, if the grantee assume in writing, the discharge of the incumbrance. Cope- land v. Copeland, 30 Me. 446. McAbee v. Cribbs, 194 Pa. St. 94; 44 Atl. 1066. In Reid v. Sycks, 27 Ohio St. 285, it was held that an agreement by the purchaser contained in the contract of sale to pay an incumbrance, is not merged in a conveyance of the land with covenants for title. 32 Estabrook v. Smith, 6 Gray (Mass.), 572. It is to be observed that in this case there was no mention of the incumbrance in the granting part of the deed. This decision has been questioned as adopting a construction of the covenants apparently at variance with the intention of the parties. The case has been criticized by Mr. Rawle (Covts. for Title [5th ed.], 290), and disapproved in Bricker v. Bricker, 11 Ohio St. 240, where a contrary decision was rendered upon the same state of facts. It was approved, however, in King v. Kilbride, 58 Conn. 109; 19 Atl. Rep. 519. Sandwich Manfg. Co. v. Zellman, (Minn.) 51 N". W. Rep. 379, and distinguished in Toney v. Dewey, (Ala.) 78 So. 887. 308 MARKETABLE TITLE TO REAL ESTATE. iiicumbrance. 33 And further, that the exception of a particular incumbrance will not be controlled by a subsequent covenant of warranty, if the deed recite8 that the grantee assumes and agrees to pay the excepted incumbrance.* 4 In a covenant against incumbrances, a provision that the land is clear "except an incumbrance of $1,500," merely identifies the incumbrance and does not fix the amount -by payment of which the incumbrance may be discharged. Hence the grantor is not liable on his covenant for the interest accrued on.the mortgage at the time of the conveyance. 35 On the other hand, it has been held that an exception of an incumbrance, payment of which was assumed by the grantee, did not embrace interest coupons matured and in default at the date of the deed, with accrued interest thereon, and that the grantor remained liable for such coupons and interest. 36 A deed of trust to secure payment of the purchase money in which the grantor covenants to pay all tax liens on the property, operates to restrict or qualify a covenant against incumbrances in the deed -by the party secured by the trust. 37 The grantee, by accepting a deed subject to an incumbrance, is estopped to deny the validity of the incumbrance. 38 122. WHAT CONSTITUTES BREACH. A covenant against in- cumbrances, if broken at all, is broken as soon as made. The mere "Brown v. Bank, 148 Mass. 300; 19 N. E. Rep. 382; Linton v. Allen, 154 Mass. 432; 28 X. E. Rep. 780. Freeman v. Foster, 55 Me 508. But where incumbrances were described in the granting part of the deed, and all of them were excepted from the covenant against incumbrances, and the grantor further covenanted that he would " warrant the premises against all claims and demands of all persons except" (two of the incumbrances mentioned), it was held that he had covenanted against the third incumbrance, such being the consequence of lii- failure to except that incumbrance from his covenant of warranty. Schaad v. Robinson, 59 Wash. 346; 109 Pac. 1072. Ayer v. Brick Co., (Maws.) 31 N. E. Rep. 717. Lively v. Rice, 150 Mass. 171; 22 N. E. Rep. 888. Keller v. Ahford, 133 U. 8. 610*. "Bankson v. Lagerlof (Iowa), 75 N. W. 661; LaderouUs v. Chale, 9 N. Dak. 331; 83 N. W. 218. "Reagle v. Dennis, (Kan. App.) 65 Pac. 469. "Cleveland Park L. & I Co. v. Campbell, 65 Mo. App. 109. * Johnson v. Thompson, 129 Mass. 398; Fuller v. Devoid, 144 Mo. App. 93; 128 S. W. 1011. COVENANT AGAINST INCUMBKANCES. 309 existence of the incumbrance, if it be capable of enforcement, is a breach of the covenant without regard to the probability of its enforcement, though, as we shall hereafter see, the plaintiff can recover no more than nominal damages if he has suffered no incon- venience or loss on account of the incumbrance. 39 But a cove- nant to defend the grantee against a particular incumbrance is not broken by the mere existence of that incumbrance; such a covenant is broken only by an enforcement of the incumbrance. Any other construction would be plainly contrary to the manifest intention of the parties, even though the deed contained a general covenant against incumbrances. 40 The covenant is, of course, not broken by the existence of an incumbrance which the grantee has assumed- to pay. And proceedings to foreclose such an incum- brance, accompanied by a lis pendens, cannot be held a breach of the covenant since these are mere incidents of the incumbrance. 41 Nor is the covenant broken by the existence of an incumbrance when the deed contains a provision that it is made " subject to " such incumbrance. That recital is a part of the description of the estate, and the covenant has reference to that estate thus qualified. 42 It has been held that an express covenant to remove a particular incumbrance imposes a higher obligation than the ordinary cove- nant against incumbrances, and that on the breach of such cove- nant, the covenantee may recover his actual damages, though he has not himself discharged the incumbrance nor suffered eviction thereunder. 43 The covenant extends only to incumbrances existing at the time thereof; it does not extend to liens or incumbrances created by a subsequent purchaser of the premises. 44 39 See post, 129. Stamburgh v. Smith, 23 Ohio St. 584. Ladd v. 'Myers, 137 Mass. 151. Moseley v. Hunter, 15 Mo. 322. Dahl v. Stakke, 12 N". Dak. 325; 96 N. W. 353; Jewett v. Fisher, (Kan. App.) 58 Pac. 1023. Anniston Lumber Co. v. Griffith, (Ala.) 73 So. 418; Knowles v. Temple, 49 Wash. 595; 96 Pac. 1; Dudley v. Waldrop, (Mo. App.) 183 S. W. 1095; Smith v. Smith, 90 N. J. L. 282; 101 Atl. 254. f Shelton v. Pease, 10 Mo. 473. 41 Monell v. Douglas, 17 N. Y. Supp. 178, not officially reported. 42 Johnson v. Nichols, 105 Iowa 122; 74 N. W. 750; Brown v. Bank, 148 Mass. 30; 19 N. E. 382. "Bohlcke v. Buchanan, 94 Mo. App. 320; aff'd. 68 S. W. Rep. 92. "Naylor v. McNair, 91 Ark. 345; 122 S. W. 662. 310 MARKETABLE TITLE TO KEAL ESTATE. 123. Definition of incumbrance. The precise legal defini- tion of the term incuinbramce is a matter of some nicety. In a popular sense, it means, as has been said, a clog, load, hindrance, impediment, weight. Perhaps the best judicial definition of the term is that of Chief Justice PARSON : " Every right to or inter- r.-t in the land granted, to the diminution of the value of the land, but consistent with the passing of the fee." 45 Hereunder all incumbrances may be classed as: (1) Pecuniary charges on the granted premises: (2) Estates or interests less than a fee in the premises; and (3) Easements or servitudes to which the premises :ir<- subject. The definition given is satisfactory as to the first two of these classes ; for it is plain that a pecuniary charge upon the premises, or a lesser estate carved therefrom, must diminish their value. But the definition is necessarily inconclusive as respects the third class, inasmuch as there are certain easement-, technically "incumbrances" which may be beneficial rather than detrimental to the premises, such, for example, as a railway or a public highway; a fact which, coupled 1 with notice of the exist- ence of the easements at the time of the purchase, has occasioned much conflict of decision as to whether they constitute such breaches of the covenant as entitle the purchaser to damage. 46 124. Pecuniary charge or lien. Judgments. Tax liens. Notice to covenantee. A pecuniary charge or lien upon the granted premises, existing at the time of the conveyance, con- stitutes a breach of the covenant against incumbrances. It i> immaterial whether the purchaser had or had not notice of the incumbrance at the time the conveyance was executed. The right to rescind an executory contract and to recover back the purchase Prescott v. Trueman, 4 Mass. 627; 3 Am. Dec. 249. This definition ha< been approved by Mr. ftreenleaf (2 Ev. $ 242), and by Mr. Rawlc (Covts. fur Title [.1th ed.) {; 7ii. \vlni ho\\..ver pertinently adds flint the question "what doe* diminish the value of the land" must sometimes lie a matter of doubt, a- where the alleged ineiimhrance consists of a railroad or a public hijjhwav. either of which may be a benefit instead of a burden to the land. Definition tjipro\ed in Ilniiik v. Moore. 19 Mi. 313. Bronson V. Coflin. Ins Mas,. 175; II Am. Hep. :{.",:, Chapman v. Kimball. 7 Neb. 399; Frit/ v. I'usey. 31 Minn. 368; 18 N. W. Rep. 01. Clark v. Fisher, 54 Kans. 403; 38 Pac. Rep. 4'.i3 : '.e v. Mtp-. Co., KJrt Ala. 170; 51 So. Slil ; Tuske-ree Land Co. v Realty Co., (Ala.) 49 So. 378: Booth v. Wyatt, (Utah) ls: I'a,. ::-j:j. and in many other < ase. -Post, I 127. COVENANT AGAIKST INCUMBBANCES. 311 money already paid, or to detain that which remains unpaid, has been in some cases denied on the ground that the contract was made with notice of the incumbrance. But notice is of no import- ance after a conveyance with covenants for title has been executed. The purchaser takes the covenant as much for protection against known as against unknown incumbrances, 47 and he is not required to exercise any diligence in ascertaining whether there are incumbrances on the land, 48 and it is immaterial that an examina- tion of the public records by him would have disclosed the incum- brances of which he complains. 49 The existence of the incum- brance constitutes a breach of the covenant though the incumbrance has been neither actually nor constructively enforced, and though the covenant be coupled with that for quiet enjoyment, and there has been no eviction of the purchaser. 50 But, as will be hereafter seen, the purchaser can recover no more than nominal damages if the breach has occasioned him no loss or injury. 51 A judgment lien binding the granted premises constitutes, of course, a breach of the covenant against incumbrances. 52 So, also, 47 Dunn v. White, 1 Ala. 645. Worthington v. Curd, 22 Ark. 285. Snyder v. Lane, 10 Ind. 424. Whitten v. Krich, 27 Ind. App. 419; 61 N. E. 593. Townsend v. Weld, 8 Mass. 146. Smith v. Lloyd, 29 Mich. 382; Clore V. Graham, 64 Mo. 249. Long v. Moler, 5 Ohio St. 272 ; Lloyd v. Quinby, 5 Ohio St. 263, 265. Funk v. Voneida, 11 Serg. & E. (Pa.) 109; 14 Am. Dec. 617. Cathcart v. Bowman, 5 Pa. St. 317; Shaffer v. Green, 88 Pa. St. 370. Evans v. Taylor, 177 Pa. St. 286; 35 Atl. 635. Lane v. Richardson, (N. Car.) 10 S. E. Rep. 189. Yancey v. Tatlock, (Iowa) 61 N. W. Rep. 997. Doyle v. Emerson, 145 Iowa 358; 124 N. W. 176; Schimmelfenning v. Brunk, 153 Iowa 177; 132 N. W. 838. Dudley v. Waldrop, (Mo. App.) 183 S. W. 1095; O'Connor v. Enos, 56 Wash. 448; 105 Pac. 1039; Anniston Lumber Co. v. Griffith, (Ala.) 73 So. 418; Xeeley v. Lane, (Tex. Civ. App.) 205 S. W. 154; Askew v. Brunei-, (Tex. Civ. App.) 205 S. W. 152; Delco Holding Co. v. Rosenthal, 164 N. Y. Supp. 785. 48 Edwards v. Clark, 83 Mich. 246; 47 N. W. Rep. 112; Smith v. Lloyd, 29 Mich. 382. Woolums v. Hewitt, 142 La. 597; 77 So. 295. 49 Downs v. Nally, 161 Ky. 432, 170 S. W. 1193. 50 Hall v. Dean, 13 Johns. (N. Y.) 105. ' 51 Post, 129. 52 Hall v. Dean, 13 Johns. (N. Y.) 105. Wilkinson v. Olin, 136 111. App. 527. A sale of the premises under an execution issued upon a dormant judg- ment without proceedings to revive, and without leave of court, is, neverthe- less, a breach of the covenant against incumbrances. A sale of property under a merely voidable execution is valid. Jones, v. Davis, 24 Wis. 229. -"'. _ MARKETABLE TITLE TO KEAL ESTATE. an attachment, though it be in its nature uncertain and dependent upon the final judgment to be rendered in the action ; 3 the lien which it creates remains a continuing security for any judgment that the plaintiff may obtain in the suit. 14 The covenant is also broken by the existence of a mechanic's lien, 15 a vendor's lien,** or a mortgage or deed of trust upon the premises.* A mere lis ftmifms, without evidence that it is weil founded, is no incum- brance: a neither is a tax deed which, though recorded, is for any reason insufficient to pass the title. 1 * The grantee is under no obligation to the grantor to put the deed on record, and it is no defense to the grantor that an incumbrance created by him would have been defeated if the grantee had promptly had his deed recorded.** Taxes and assessments payable by the grantor and levied upon the property conveyed, are a breach of the covenant against ineum- hrances. especially under statutes which provide that they shall constitute liens on the property taxed or benefited.* 1 Where, Xortoa T. Bahtock. 2 Met. (Mass.) 510; Kefcer T. Remer. 43 Cbaa. 129; 21 Am Rep. 03& *Johaaaa v. ****+*! lit Mam 302, Dyer T. Ladoawm 2 DeL Co. (X Rep. (Pa.) 422, Redmoa T. Pheaix Fire las. Cou 51 Wm 282 ; 8 X. W. Rep. 22*. Tab was a mit oa a fire iasmraace polirr. eoatalaiag a rtatuatat that there was ao iainaJhisau oa the pmamn The right to file a awchaaks* bo at the t iaw of the deed, is also a breach of the aast. Dumr r. Sharp, 73 Mo. App. 31t. "MeKeaaaa T. Dia^ais. 1 Pea. 4 W. (Pa.) 417, Haiti. Xeefcy r. Laae. (Tex. Or. App.) 193 & W. 300. TafUT.AdaamSPirk. (Mam) 54* Bnwks v. Moodr, 20 Pkk. (Mam) 474, Beaa T. Mayo. 5 GreeaL (Me.) 94. Bord T. Bartfctt, 3t VL 1. Fuak T. Voaeida. 11 Serg. 4 R. (Pa.) 100; 14 Am Dee, t!7. Askew r. Braaer, (Tw. Or. App.) 205 S. W. 152. Klrr T. Geiger. (Wash.) 30 Pac. Rep. 727. See. abo, post. If 290, 308. TiafceU* T. LatMm 148 Mam 102; 18 X. K. Rep. 879. Gremager T. Xabor, 98 Kaa. 507; 152 Pac. 023. Carr T. Doolrr, 119 MaM. 294. la feet, the r iiil U ao bea cakas ande ao hy lUtate. Cbokj oa Taxatioa, 305. CadauM T. Fagaa. 47 X. J. L. Mil Taaea eamMUhafa Irvach of coveaaat agaiart hWMBinacam, Fuller T. JtDette. 9 Bam (C C.) 290. Loag r. Moler, 5 Ohio St. 271; Craig T. Heit, 30 Ohio SL 550. Codkraa T. Guild, 100 Mam 30; 8 Am Rep. 298; HOI 110 Mam 388; Blackie T. Hodaoa. 117 Mam 181. Mitchell r. F, 5 Wk. 407. Richard T. Beat, 59 ID. 38; 14 Am Rep. 1; Almy r. 48 10. 45. Shaffer T. Greea. 87 Pa. St. 370. Bloavoai r. Van Court, 34 Mo. 304; 97 Am Dae. 412. Reid T. Eppenoa, (Mo. App.) 122 R. W. 353; 313 however, the conveyance made was after the tax bad been ordered to be levied, or the improvement directed to be made, but before the tax or assessment had been placed in the hands of the revenue officers for eotleetion, questions have been raised as to whether the grantor or the grantee was property chargeable therewith. Independent of statutory construction, the general rule, supported by the weight of authority, seems to be that in such a ease the tax Brandt v. Hough (Mo. App.j 20* & W, 425; O'O*fl v. First Parafc, 2XM Ma**. US; 90X.E. 580-, Wcghorst v. Clark, (Colo.) 190 Pae. 742. The tax lien is a breach of the covenant even though there had hem an invalid fax sale of the land. In each ease the purchaser is subrogatod to the right of the State to enforce the lien- Seldon v, Jones Cou, S9 Ark, 294; 11* S. W. 217, An express provision in the contract, created in 1910, that the pur- chaser should pay the taxes for that year, is not to he controlled by a receipt for the earnest money and an escrow deed showing that the property was to be conveyed free of inenmbnuwes, Colby v, Keene, 94 Wash, ISf ; 14* Pae. 309, Taxes or iwimrnMiifin vpon the granted premises pajvble by the grantor are breaches' as well of a covenant against inevmbrances created by himself, as of a general covenant against inenmbrances, Devine v, Bawle, (Pa. St.* 23 AtL Bep. 1119, Ifflot v. Beed, (Mont.) 29 Pae. 343. A better- ment tax lawfully assessed, is a breach, of the covenant against ineandmnces. Folev v. City of Harerbfll, 144 Mase. 352; 11 X. E. Bep. 554; Simaaovica v. Wood, 145 Mass, 190; 13 X. E. Bep. 391. &mta v. Abngton Sav, Bank, 171 Mam. 178; 50 X. EL 545. An unpaid municipal daim for water pipe, not entered of record so as to preserve its lien, is no breach, of the covenant. Stutt v. Building Association, 12 Pa. Co. Ct. Bep. 344, In IngalOs v. Cooke, 21 Iowa, 5*O, it was held that a mortgagor is not liable for taxes assessed upon the property, after the mortgage was executed^ Ouc, JT., dimffniing. This decision is at least on&ctioaable. A mortgage is a mere security for the payment of money, and does not operate a change of title or ownership, (1 Jones Mortg. g 11; Bawle Covts. for Title [5ta ed.1, f 218; Stanard v. Eldridge, 1* Johns [X. Y.] 254), and the duty to pay the taxes would, there- f ore, seem to devolve upon the mortgagor, otherwise be might suffer tike premises to be sold for taxes, purchase them himself,, and acquire the estate discharged of toe mortgage, which would contravene the rule that the owner of lands subject to lien cannot permit them to be sold for taxes, and then obtain a lax deed for the purpose of catting off such lien. See Jones v. Davis, 24 Wis. 229; Smith v. Lewis, 20 Wis. 350; Bassett v. Welch, 22 Wi& 175. The liability of a pew in a church recently built, to be assessed for further building expenses incurred after the pew had been conveyed with covenants against inenmbrances, is not an incnmbrance for which the grantor is re- sponsible, and such an assessment is, therefore, no breach of the covenant against ineumbrances. Spring v. Tongue, 9 Mass. 28; * Am. Dee. 21. Tax liens are covered by the statutory covenant against incumbranees implied from the words "grant" or "convey." BnUitt v. Coryefl, (Tex. 40 314 MAKKETAHLE TITLE TO KEAL ESTATE. relates back and becomes a lien as of the time when the assess- ment roll was made up, or the improvement ordered to be made, and that in such a case the existence of the inchoate tax or assess- ment ojierates a breach of the grantor's covenant against iucum- brances. But where a statute provides that all taxes and assess- ments shall become liens upon a certain day of the year, a tax or assessment levied or ordered before that day, will not constitute a breach of the covenant, in a deed executed in the interval between Civ. A pp. ) 84 S. W. 482. Special assessments for street improvements are not "taxes," within the meaning of an exception from the operation of a covenant against incumbrances. Cleveland Park L. & I. Co. v. Campbell, 65 Mo. App. 109. Knight v. Clinkscalea, 51 Okl. 508; 152 Pac. 133. A covenant of " seisin " in a deed is 'not broken by the existence of a tax deed to the property, executed two months after the execution of the covenant, though the tax certificate existed, when the covenant was executed. Lerfing v. Seelig, 14 S. Dak. 303; 85 N T . W. 585. An assessment lien which, if valid, would have constituted a breach of the covenant against incumbrances, was declared unconstitutional, whereupon another assessment for the -same improvement, but under another statute, was made. Held, that the lien of the second assessment did not constitute a breach of the covenant against incumbrances. Barth v. Ward, 71 N. Y. Supp. 340; 63 App. Div. 193. "Cochran v. Guild, 100 Mass. 30; 8 Am. Rep. 296. De Peyster v. Murphy, fi6 X. Y. 622. Sanders v. Brown, 65 Ark. 498; 47 S. W. 461. Cotting v. Com- monwealth, 205 Mass. 523; 91 N. K. 900. The liability of the premises to an assessment for the expense of building a sewer, is an incumbrancc from the time of the order for the construction of the sewer, and is, therefore, a broach of a covenant against incumbrances in a deed delivered before the assess- ment was laid, but after the order was passed. Carr v. Dooley, 119 Mass. 294. In LafTerty v. Milligan. 165 Pa. St. 534; 30 Atl. Rep. 1030, certain street improvements were made under an act afterwards held unconstitu- tional. A curative art was passed validating the improvements, and it wan held that assessments therefor constituted a breach of a covenant against incumbrances in a deed executed after the passage of the curative act, though at the time of the execution of the deed the exact amount to be assessed upon the property had not been fixed. In Katon v. Chesbrough, 82 Mich. 214; 46 N. W. Rep. 365, it was held that under a city charter making taxes a Hen upon real estate, without fixing a time when such lien shall attach, Mich taxes become a Hen from the time the assessment roll passed into the hands of the tax collector, that is, on the first day of July; so that taxes for tho year 1R89 aMscsscd upon a city lot, constituted a breach of a covenant agaitiNt i iu umbrancf* in a conveyance of such lot executed and delivered in the afternoon of the 1st day of July, 1SOO, in pursuance of a contract of Mile made on the 22d day of May. 1890. The defendant (vendor) contended, among other things, that the covenant against incumbrances related back to the date of the contract (May twenty-second), and that there being no con- summated tax Hen at that time, the covenant was not broken, but this con- COVENANT AGAINST INCUMBRANCES. 315 the date of the levy and the date on which the tax became a lien. 63 In such a case, where, by the terms of the contract made three months before December 31st, the day when taxes became a lien, a deed was not to be made until after that date, the vendor mean- time remaining in possession, it was held that the covenant against incumbrances in the deed so executed, was broken by the lien for taxes which attached on December 31st. The vendor in such case was regarded as practically the owner until the deed was delivered tention was denied by the court. Under a statute providing that a ditch assessment should be a lien on the property benefited, it was held that the lien attached when the assessment was made, and constituted a breach of covenant against incumbrances in a conveyance of the premises, though the tax, because not spread upon the assessment roll, could not have been paid until after the conveyance. Lindsay v. Eastwood, 72 Mich. 336; 40 N. W. Rep. 455. In Wisconsin it is provided by statute that where land is conveyed after the assessment but before warrant for collection of the tax is issued, the grantee shall be liable for such tax. This statute has been held appli- cable only to the tax of the year in which the conveyance was made. Peters v. Meyers, 22 Wis. 602. In Missouri it is held that the mere order for a tax or assessment, though the amount which the owner is to pay be not ascer- tained, is an incumbrance which will entitle the grantee to damages if he has had the use and enjoyment of the premises. Barnhart v. Hughes, 46 Mo. App. 318. Under a statute providing that an assessment for a street improvement shall be a lien from the time of the completion of the improve- ment, a covenant against incumbrances in a deed executed after the completion of the improvement but before levy of the assessment, is broken. Hartshorn V. Cleveland, (N. J.) 19 Atl. Rep. 974. In Carey v. Gundlefinger, 12 Ind. App. 645; 40 N. E. 1112 and Kimberlin v. Templeton, 55 Ind. App. 155; 102 N. E. 160, it was held that street and sewer assessments made after the execution of the contract, were not incumbrances on the property within the intent of a covenant against incumbrances in the deed executed and delivered before the assessments became a lien. The covenant is broken if, at the time of the conveyance to the purchaser, the report of the assessment commissioners is on file. Pierse v. Bronnenburg, 40 Ind. App. 662 ; 82 N". E. 126. Special assessments declared void but subseqently relevied, do not relate back to the original levy so as to come within a covenant against incumbrances entered into between the first levy and the relevy. Armstrong v. Trust Co., 96 Kan. 722; 153 Pac. 507. 63 Bradley v. Dike, (X. J. Eq.) 32 Atl. Rep. 132. Bowers v. Real Est. Co., 28 R. I. 365; 67 Atl. 521. Thus, in Tull v. Royston, 30 Kans. 617, a statute provided that taxes and assessments should be liens from the first day of November in the year in which they were levied. Hereunder it was held that an assessment for a street improvement became a lien, not from the time the improvement was authorized, but from the time the assessment became due and payable, and that a covenant against incumbrances executed in the interim was not broken by such assessment. See, also, Overstreet v. Dobson, 310 MARKETABLE TITLE TO REAL ESTATE. and jxjssession given.' 4 In the case of a statute which provided that taxes should become a lien on the land on the first Monday of March in each year, it was held that a covenant against incum- hrances contained in a deed executed on March 25, 1897, embraced taxes assessed to the grantor for the fiscal year beginning July 1, 1897. 65 In Xew York the rule is that until the amount of a tax is ascertained and determined in the manner provided by law no lien attaches. Therefore, where an assessment had been made prior to the execution of a deed, but the amount of the tax was not calculated and fixed by the authorities until after the deed was executed, it was held that there was no breach of the covenant against incumbrances. 6 ' 28 Ind. 256. Long v. Mwler, 5 Ohio St. 272. Warfleld v. Erdman, 19 Ky. Law R. 1559; 43 S. W. Rep. 708; Everett v. Marston, 186 Mo. 587; 85 S. W. Rep. 540. In Everett v. Dilley, (Kana.) 7 Pac. Rep. 661, it was said that in the absence of special agreement the law determines which party shall pay taxes accruing while the purchase money remains unpaid, which is as much as to say that the tax follows the land, and that the person who is in equity the owner at the time of the imposition of the tax must pay it. In Nebraska a vendor selling after April first in any year is, by statute, liable for the Caxes of that year. McClure v. Campbell, (Xeb.) 40 N. W. Rep. 595. In Colorado, a grantor conveying between May 1st and the following January 1st, pays the tax assessed for the current tax year. Rambo v. Armstrong, 45 Colo. 124; 100 Pac. 5^6. Where the contract required the vendor to pay all taxes except those " not now due and payable," he was not required to pay special tax bills which, while a lien at the time of the contract, were not at that time cnforciblc. Swanson v. Spencer, 117 Mo. App. 124; 163 S. W. 286, Xungesaer v. Hart, 122 Iowa, 647 ; 08 N. W. Rep. 505. *M-Iike v. H.-at ..ii, 131 Cal. 109; 63 Pac. Rep. 179. * l.t ln-r- v. Keogh, 100 X. Y. 583, distinguishing De Peyster v. Murphy, 66 X. Y. 622, and Barlow v. St. Xicholas Bank, 63 X. Y. 399; 20 Am. Rep. 547; McLaughlin v. Miller. 124 X. Y. 510; 26 X. E. Rep. 1104; People v. Gilon, 24 Abb. X. C. (N. Y.) 125; 9 X. Y. Supp. 212, 563; S. C., 56 Hun (X. Y.), 641. An elaborate note on the successive steps in the incidence of taxation, and the time at which taxes became a lien on real estate, will be found in 24 Abb. X. C. (X. Y.) 130. Sec also, Doonan v. Killilea, 222 X. Y. 399; 118 X. E. H51. Where a statute provides that estimates for a proposed street improve- ment -hull IK- made from time to time, and the same shall constitute a lien on the adjoining premises, estimates made after execution of a conveyance constitute no breach of a covenant against incumbrances therein, though the contract for the improvement, had been let before the deed was executed. I^ngmlale v. NirkUus, 38 Ind. 289. The mere entry of land in an assess ment roll does not constitute an incumbrance thereon, and the subsequent COVENANT AGAINST INCUMBEANCES. 317 In Washington it is held, as between grantor and grantee, that a local improvement assessment does not become a lien, so as to constitute a breach of a covenant against incumbrances, until after the assessment roll is placed in the hands of the proper officer for collection. 67 Taxes assessed after the execution of a deed, which do not relate back to a time prior to the execution of the deed, are, of course, no breach of the covenant. 68 assessment or levy of a tax thereon is not a breach of a covenant against incumbrances in a deed executed after completion of the assessment roll, but before levy of the tax. Barlow v. St. Nicholas Nat Bank, 63 N. Y. 399 ; 20 Am. Rep. 547, distinguishing Rundell v. Lakey, 40 N. Y. 513. The liability to assessment for a local improvement is no lien until the amount thereof has been fixed and determined. Therefore, where, before the execution of a deed with covenant against incumbrances, the work of paving a street on which the granted premises abutted had been completed, but no proportion of the cost was assessed against such premises until after the deed was executed, it was held that there was no breach of a covenant against incumbrances in such deed. Harper v. Dowdney, 113 N. Y. 644; 21 N. E. Rep. 63. Hastings v. Land Imp. Co., 61 N. Y. Supp. 998; 46 App. Div. 609. Where an assessment for benefits has not, at the time of a conveyance, been entered and confirmed as required by statute to make it a lien on the benefited premises, it will not operate a breach of a covenant against incumbrances in such conveyance. Dowdney v. Mayer, 54 N. Y. 186. Real Est, Corp. v. Harper, 174 N. Y. 123; 66 N. E. Rep. 660. Under the New York rule the burden devolves upon the purchaser to show that the amount of the tax or assessment had been legally ascertained and determined at the time the covenant was made. McLaughlin v. Miller, 124 N. Y. 510; 26 N. E. Rep. 1104. The right of a city to demand payment for the cost of laying water pipes in a rural district from users after the district becomes urban, is not a " tax-lien, claim, or incumbrance " within the meaning of a contract of sale. Gilham v. Real Est., etc., Co., 203 Pa. St. 24 ; 32 Atl. Rep. 85. The covenant against incumbrances is not broken by an assessment levied on the property but not " wholly confirmed " and entered on t*he record of assessments until after the conveyance, though the assessment proceedings were begun prior thereto. Real Est. Corp. v. Harper, 74 N. Y. Supp. 1065; 70 App. Div. 64. Charges for installation of a water meter, being by statute a lien on the premises, are within a covenant against incumbrances, though not entered on the books of the water register until after the execution of the deed. Cuba v. Duskin, 120 N. Y. Supp. 381; 135 App. Div. 508; 95 N. E. 1126. 7 Knowles v. Temple, 49 Wash. 595; 96 Pac. 1 and Flajole v. Schulze, 80 Wash. 483; 141 Pac. 1026, disapproving Green v. Tidball, 26 Wash. 338; 67 Pac. 84; 55 L. R. A. 879. * Lathers v. Keogh, 109 N. Y. 583; 17 N. E. Rep. 131. Lindenberger v. Rowland, 158 Ky. 760; 166 S. W. 242; Taylor v. Harvey, 90 Neb. 562; 134 318 MARKETABLE TITLE TO REAL ESTATE. An agreement to pay assessment liens existing at a specified date, cannot be construed to include liens possible only under legislation subsequent to tbat date. 69 Taxes are none tbe less incumbrances in that they constitute a personal liability of the grantor, and may be collected otherwise than by a sale of the land. 70 Xor because they are invalid, if the land be liable to reassessment. 71 Such reassessment will relate back to the entry of the land on the original assessment roll. 78 The grantee, com- plaining of a tax or assessment, must show that it was a valid and subsisting lien when the deed was executed. He must show that the proceedings were regular, and that everything was done necessary to make the tax or assessment valid. 73 The same evi- dence is required of him in this respect as if he were a purchaser at a sale to enforce the tax lien, and was asserting his title in ejectment. 74 If the tax was voluntarily paid by the grantee with- out previous demand on the grantor, the latter may show that the tax was invalid. 75 X. W. 173; Cotting v. Commonwealth, 205 Mass 523; 91 N. E. 900; First Church Etc. v. Cox, 47 Ind. App. 541; 94 N. E. 1048; Blivis v. Franklin Inv. Co., 197 Mo. App. 369; 14 8. W. 1078; Patchell v. Garvin, (Okl.) 168 Pac. 423. Campbell v. Haven, 211 Mass. 121; 97 X. E. 611. "Coehran v. Guild, 106 Mass. 29; 8 Am. Rep. 296. The same ru!e has leen applied where the tax was assessed after the execution of a contract of sale, but before the execution of a conveyance of the premises. Gheen v. Harris, 170 Pa. St. 644; 32 Atl. Rep. 1094. 11 Peter* v. Meyers, 22 Wis. 602. "Colburn v. Litchfield, 134 Mass. 449. Cadmus v. Fagan, 47 N. J. L. 549. "Patterson v. Yancey, 81 Mo. 379. Robinson v. Murphy, 33 Ind. 482; Kirkpatrick v. Pearee, 107 Ind. 520. Mitchell v. Pillsbury, 5 Wis. 410. White v. Gibnon, 146 Mich. 547: 109 N. W. 1049. But see Voorhis v. Forsyth, 4 HIM. (C. C. ) 409, where it was held unnecessary to aver that the tax was valid, such being the prima fade presumption. Where A. bought land of B. in a city. B. having previously unlawfully connected a sewer on the land with a public sewer, no right so to ue the sewer paraed by implication, and A. having been compelled to pay the city a fee for connecting the sewer, could not ret-over the amount thereof on B.'s warranty against incumbrances. such fee not being a lic-n on the premise* in favor of the city. Humstead v. Cook, 189 Man*. 410; 48 N. E. Rep. 767. "Kennedy v. Xewman, 1 Kandf. (N. Y. 8. C.) 187. 'Balfour v. Whitman, 89 Mich. 202; 50 X. W. Rep. 744. COVENANT AGAINST INCU.MBUAXCES. 319 The contention that the tax lien is not a breach of the covenant until the tax has become delinquent, is untenable. 76 In England, a land tax is not deemed an incumbrance, because it is supposed to have been contemplated by the parties; and if nothing is said upon the subject, the purchaser will take the estate subject to the liability of the tax. 77 The special assessments for improvements will not be deemed a breach of the covenant if the improvement is one which adds to the value of the property. 78 Drainage assessments, it has been held, are " public charges " growing out of a benefit to the land, and do not constitute a breach of the covenant against incumbrances. 79 125. Outstanding estate or interest in the premises. An outstanding estate or interest, less than a fee, 80 in the granted premises is an incumbrance, and, therefore, operates a breach of the covenant against incumbrances ; 81 such, for example, as the right in a stranger to enter upon the premises and cut and remove timber therefrom, 82 or a prior sale of " all the iron and coal " on the granted land, with right of way and privilege of removal ; 83 or '"Lowe v. Warehouse Co., 39 Utah 395; 117 Pac. 874; Ann. Cas. 1913 E. 246. 77 1 Sugd. Vend. (8th Am. ed.) 487. "Cornelius v. Kronvminga, 179 Iowa 712; 161 N. W. 625. 79 Pate v. Banks (N. C.) 100 S. E. 251. 80 The fact that the fee is outstanding, while a breach of the covenant of seisin, is no breach of the covenant against incumbrances. Huron v. Stratton, 120 Ala. 145; 23 So. Rep. 81. Tex & Pac. Ry. Co. v. El Paso Ry. Co. (Tex. Civ. App.), 156 S. W. 561. But see Morris v. Short (Tex. Civ. App.) 151 S. W. 633 ; where it was held that a " paramount outstanding title " operates a breach of that covenant. "Jenkins v. Buttrick, 1 Met. (Mass.) 480. 82 Spurr v. Andrews, 6 Allen (Mass.), 420. Cathcart v. Bowman, 5 Pa. St. 317. Clark v. Ziegler, 79 Ala. 346; 85 Ala. 154; 4 So. Rep. 669. Gates v. Parmly, 93 Wis. 294 ; 66 N. W. Rep. 253. Kreinbring v. Mathews, 81 Oreg. 243; 159 Pac. 75. But in Southwest Va. Min. & L. Co. v. Chase, 95 Va. 50, 27 S. E. Rep. 826, it was held that purchasers who accepted a warranty deed with notice that standing timber on the land had been conveyed to a third party, thereby waived any claim to an abatement of the purchase money in the 'future. In Lumpkin v. Blewitt (Tex. Civ. App.) Ill S. W. 1072, it was held that the covenant was not broken until the grantee's possession of the timber had been affected by the prior conveyance. M Stanbaugh v. Smith, 23 Ohio St. 584. Ibbetson v. Knodle, 201 111. App. 373. ol20 .MARKETABLE TITLE TO REAL ESTATE. the right to enter on the land and take oil and asphalt therefrom ; 84 or the statutory right to redeem from a mortgage sale. 85 So also an interest in the premises in favor of a third person, who holds as a tenant in common, is an incumbrance. 88 But an adverse equitable claim to the premises is not an incumbrance; 87 nor is a prior deed to the premises, where such deed is unenforcible and void; 88 nor is an unlawful encroachment, by an adjoining owner, on the property conveyed. 89 The better opinion seems to be that a condition which may work a forfeiture of the estate granted, or a contingency upon which the estate is liable to be determined in the hands of the purchaser, amounts to a breach of the covenant against incumbrances, 90 such, for example, as a provision in the deed that only buildings of a certain kind should be erected on the premises conveyed, with reversion to the grantor in case of a breach of the condition. 91 The covenant against incumbrances is broken by the existence of an outstanding term of years in, or lease of, the granted prem- ises.' 2 But where the conveyance is taken with knowledge that "Flood v. Graham. 01 Fla. 207; 54 So. 456; Ann. Cas. 1912D, 1137. 16 Roy v. Martin (Ala.) SI So. 142. "Comings v. Lilt IP, 24 Pick. (Mass.) 266. "Marple v. Scott, 41 111. 50. Reed v. Stevens (Conn.) 107 All. 495. "Ratoewirz v. Kara, 88 X. J. Eq. 201 ; 103 Atl. 912. "((KH.KY, .!.. in Post v. Campau, 42 Mich. 90, citing Jenks v. Ward, 4 Mctc. (Mass.) 412. A possibility may be an incumhrance. Sir F. Moore's Hep. 240, pi. 3H3; Haverington's Case, Owen, 0. In Van Rensselaer v. Kearney, 11 How. (U. S.) 316, it was contended by counsel, argtirntlo, that an estate in expectancy outstanding is an incumbrance on the land, citing 14 Vin. Abr. 352, tit. Encumbrance H. Sugden Vend, (old ed.) 527, S 9. In Estahrook v. Smith, 6 Gray (Mass.), 572; 60 Am. Dec. 443, it was held that a condition in a deed that the grantee (plaintiff'* vendor) should build a hou> on the premises within a year from the date of the deed was not an incumbrance. "Locke v. Hale, 165 Mass. 20; 42 X. E. Rep. 331. "Crow* v. Noble, 67 Pa. St. 74, 77; Dech'n Appeal, 57 Pa. St. 467. Pease v. Christ. 31 X. V. 141; Giles v. Dugro, 1 Duer (X. Y.), 331. Taylor v. Heitr., 87 Mo. 660. Edwards v. Clark, 83 Mich. 246; 47 X. W. Rep. 112. Fritz v. Puwy, 31 Minn. 368; 18 X. \V. Rep. 94. Porter v. Bradley. 7 R. I. 638. Grice v. Scarborough, 2 Spear L. (S. C.) 649; 42 Am. Dec. 391. Clark v. Flutter, 54 Kim*. 403; 38 Pac. Rep. 493; Smith v. Davis, 44 Kani. 362; 24 Pac. Rep. 428. Brass v. Vandecar, (Xeb.) 96 X. W. Rep. 1035. An out- tanding lease of the premises in an incumbrance entitling the grantee to COVENANT AGAIXST INCUMBRANCES. 321 the land is in the possession of a lessee, the existence of the lease will not, under a statute transferring the constructive possession to the grantee without attornment by the tenant, operate a hreach of the covenant ; 93 nor, it is apprehended, independently of any statute, where there is an actual attornment by the tenant, or an apportionment of the rent between the parties. 94 And generally it may be said that if the purchaser knows that the premises are in the possession of a tenant, and no special contract is made, the occupant will become tenant to the purchaser, and there will be no breach of the covenant against incumbrances. 95 Nor will the covenant be broken if the purchaser accepts an assignment of the lease ; 96 nor if the lease was void as to the grantee for want of record ; ^ nor if the conveyance of the fee be made expressly sub- ject to the lease; in such a case the rent is an incident to the reversion, and passes with it. 98 An outstanding life estate in a damages, if he bought the property for speculation, and the grantor was aware of that purpose. Batchelder v. Sturgis, 3 Gush. (Mass.) 201. An agreement that in a certain event the lessee shall have a further term in the demised premises, is no incumbrance. Weld v. Traip, 14 Gray (Mass.) 330. Barker V. Denning, 91 Kan. 485; 138 Pac. 573; O'Connor v. Enos, 56 Wash. 448; 105 Pac. 1039; Estep v. Bailey, (Oreg.) 185 Pac. 227; Morriss v. Hesse (Tex. Civ. App.) 210 S. W. 710; Simonds v. Diamond Match Co., 159 Mich. 241; 123 N. W. 1132; Crawford v. McDonald, 84 Ark. 415; 106 S. W. 206. ^Kellum v. Berkshire Life Ins. Co., 101 Ind. 455. Ream v. Goslee, 21 Ind. App. 241; 52 N. E. Rep. 93. The rule stated in the text was approved in Demars v. Koehler, 60 N". J. L. 314; 38 Atl. Rep. 808. But this decision was reversed on appeal (62 N. J. L. 203; 41 Atl. Rep. 720), the court reaching the conclusion that the right to recover for the breach was not affected by notice of the existence of the lease, mainly upon the ground that in Xew Jersey parol evidence is not admissible to vary the effect of the covenant. 94 Rawle Covts. for Title (5th ed.), 78. Haldane v. Sweet, 55 Mich. 196. 95 Lindley v. Dakin, 13 Ind. 388; Page v. Lashley, 15 Ind. 152. Mann v. Montgomery, 6 Cal. App. 646; 92 Pac. 875; Richardson v. Brewer, 71 Wash. 192; 127 Pac. 1098; Musial v. Kudlik, 87 Conn. 164; 87 Atl. 551; Ann. Cas. 1914 D, 1172. In Edwards v. Clark, 83 Mich. 246; 47 N. W. Rep. 112, it was said that there would still be a breach of the covenant, notwithstanding the acceptance of rent, but that the amount so accepted must be deducted from the damages for the breach. '"Gale v. Edwards, 52 Me. 363. 91 Hampton Park Co. v. Scottile, 102 S. C. 372; 86 S. E. 1066. 98 Pease v. Christ, 31 N. Y. 141. Spaulding v. Thompson, 119 Iowa, 484; 93 X. W. Rep. 498. 41 322 MARKETABLE TITLE TO REAL ESTATE. stranger is an incumbrance." The weight of authority is that the covenant is broken by a claim for dower in the granted prem- ises, 1 whether the right be inchoate and contingent, or consum- mate by the death of the husband. 2 If the covenant be special, against any claim for dower which a certain person may set up, it will not be broken until the right to dower has been perfected by the husband's death. 3 The right of a wife to elect whether she will take dower in lieu of a jointure or settlement, is such an incumbrauce on land acquired by the husband after the settle- ment, as amounts to a breach of a covenant against iucumbrances in a subsequent conveyance of the land. 4 The rule that the covenant is broken by the existence of a contingent right of dower Christy v. Ogle, 33 111. 205. Mills v. Catlin, 22 Vt. 93, semble. See cases cited below. 'Fishel v. Browning, 145 X. C. 71; 58 S. E. 759. In Allen-West Com. Co. v. Patrick, 123 Ark. 55; 184 S. W. 436, it was held that there was no breach of the covenant if there were other lands of the decedent out of which the dower could be assigned. 'Shearer v. Ranger, 22 Pick. (Mass.) 447; Jenks v. Ward, 4 Met. (Mass.) 412: Harrington v. Murphy, 109 Mass. 299. Blanchard v. Blanchard, 48 Me. 174; Donnell v. Thompson, 1 Fairf. (Me.) 170; 25 Am, Dec. 216; Runnels v. Webber, 59 Me. 490; Smith v. Connell, 32 Me. 120; Porter v. Xoyes, 2 Greenl. (Me.) 27; 11 Am. Dec. 30. Russ v. Peiry. 4!) X. H. 549; Fitts v. Hoitt, 17 N. H. 530. Carter v. Denman, 3- Zab. (X. J. L.) 273. Jones v. Gardiner, 10 Johns. (X. Y.) 26. Durrett v. Piper, 58 Mo. 551; Henderson v. Henderson, 13 Mo. 151; Walker v. Deaver, 79 Mo. 664; Ward v. Ashbrook. 78 Mo. 515. Contra, dictum of STORY, J., in Powell v. Munson, 3 Mason (C. C.), 355. Xyce v. Obertz, 17 Ohio, 70; Johnson v. Xyce, 17 Ohio, C(i . f! Am. Dec. 444. Hutchins v. Moody, 30 Vt. 658, obiter. Bostwick v. Williams. 36 111. 65, acmble; 85 Am. Dec. 385; Humphrey v. Clement, 44 111. 299, rti<-tnni. It is now settled in Illinois that an inchoate riht of dower is embraced by a covenant against incumbrances. MeCord v. Massey, 155 111. 123; 39 N. E. Rep. wan v. Kane, 211 111. 527: 71 X. K. Rep. 1097; Raftery v. Ea*eley, 111 111. App. 413. In Blevins v. Smith, (Mo.) 10 S. W. Rep. 213, the covenantee bought in an inchoate right of dower in the premises, and it was held that he was not entitled to damages, there Wing no menu- of computing the value of the interest. THOMAS, J., dissenting. In Kreiiilierg v. Mathow*, 81 Oreg. 243; 159 Pac. 75, it is said that the outstanding dower right is a breach of the covenant of *ei>in rather than of the covenant lijjain-t incura- branri-. in Aiple & C. Real Est Co. v. Spelbrink, 211 Mo. c.71. Ill S. W. 480, it wa* held that there would he no substantial l-p-adi of Tin- ...\enant until tin- do\\er right Wiunc conHiimmate by the death of the husband. Meare, 9 R. I. 106. BigH.,\\ v. HuMmrd. !'7 Mass. 195. COVENANT AGAINST INCUMBRANCES. 323 in the land conveyed is not changed by statutes which substitute for dower a fee simple or other interest in a portion of the hus- band's lands-. 5 The grantor, having been served with notice of a proceeding to establish the dower right is, in the absence of fraud or collusion, bound by a judgment in favor of the plaintiff. 6 126. Easements or physical incumbrances. An easement or servitude to which the granted premises are subject, and which was unknown to the purchaser at the time of the conveyance, or subject to which he cannot be reasonably presumed to have taken the premises, constitutes everywhere a breach of the covenant against incumbrances. 7 Such, for example, as a private right of way over the premises, 8 a building restriction running with the land, and binding the covenantee ; 9 an obligation to maintain a "Crowley v. Lumber Co., 66 Minn. 400; 69 N. W. Rep. 321. 'Raftery v. Easeley, 111 111. App. 413. 7 See cases cited in the notes below. 8 Blake v. Everett, 1 Allen (Mass.), 248; Wetherbee v. Bennett, 2 Allen (Mass.) 428; Harlow v. Thomas, 15 Pick. (Mass.) 66. Wilson v. Cochran, 46 Pa. St. 233; 86 Am. Dec. 574. Richmond v. Ames, 164 Mass. 467; 41 1ST. E. Rep. 671. Teague v. Whaley, 20 Ind. App. 26; 50 1ST. E. Rep. 41; Young v. Gower, 88 111. App. 70. Smith v. White, 71 W. Va. 639; 78 S. E. 378. The purchaser's knowledge at the time of the covenant, that there was a passway over the land, does not affect his right to recover, where he ,did not know that such passway was an easement enforcible against the owner of the premises. Perry v. Williamson, (Tenn.) 47 S. W. Rep. 189. A private right of way over the premises is a breach of the covenant for quiet enjoy- ment, though the covenantee bought with notice of the easement. Eller v. Moore, 63 X. Y. Supp. 88; 48 App. Div. 403. Roberts v. Levy, 3 Abb. Pr. (N. S.) (1ST. Y.) 311. Greene v. Creighton, 7 R. I. 1. Bull v. Burton, 227 N. Y. 101; 124 N. E. 111. A " condition " in a conveyance that no buildings- shall be erected on a particular part of the lot, and that no buildings of less than a certain height shall be erected thereon, is a building restriction operating a breach of the covenant against incum- brances, and not a condition -which may defeat the estate in case of a breach. Ayling v. Kramer, 133 Mass. 12. A condition that during a certain number of years only one house shall be erected on the premises, which shall be used for a dwelling house only, and by but one family, constitutes a breach of a covenant against incumbrances. Foster v. Foster, 62 N. H. 46. A grantor has a right to impose building restrictions, and they are valid incumbrances. Coudert v. Sayre, (N. J. Eq.) 19 All. Rep. 190. Whitney v. Railroad Co., 11 Gray (Mass.), 359; 71 Am. Dec. 715. Building restrictions, and restric- tions as to the use of the granted premises, whether they run with the land or not, will be enforced in equity against a purchaser, with notice. Coudert v. Sayre, (1ST. J. Eq.) 19 Atl. Rep. 190. 324 MAHKKTABLK TITLE TO RKAL ESTATE. liivisiou fence; 10 the right in a stranger to maintain a drain across the warranted land ; ll the right to conduct water from a spring on the granted premises, through pipes laid beneath the surface ; 12 the right to have the eaves of a building on an adjoin- ing lot overhang the granted premises, so as to drip water thereon; 13 the right in an adjoining proprietor to dam up and use the water of a stream running through the granted premises; u the right in a stranger to divert the water from a stream on such premises ; 15 or to flow the premises with the waters of a mill dam ; 1S a restrictive covenant against the use of fire arms on the "Kellogg v . Robinson, Vt. 276; 27 Am. Dec. 550. Bronson v. Coffin. 108 Mass. 175; 11 Am. Rep. 335. Ensign v. Colt, 75 Conn. Ill; 52 Atl. Rep. 829. Sherwood v. Johnson, 28 Ind. App. 227; 62 N. E. Rep. 645. An agree- ment to maintain a certain fence upon designated premises, recorded so as to bind a subsequent purchaser, constitutes a breach of covenant against incumbrances. Burbnnk v. Pillsbury, 48 N. H. 475; 97 Am. Dec. 633. Bui see Parish v. Whitney. 3 Gray (Mass.), 516, where it was held that a covenant to perpetually maintain a division fence, contained in the deed under which tin- grantor holds, does not run with the land, is not binding on a subsequent grantee, and is, therefore, no breach of a covenant against incumbrances in a conveyance to such subsequent purchaser. Explained in Bronson v. Coffin. 108 Mass. 186; 11 Am. Rep. 335, and see cases there collected, showing that such a covenant in a deed poll does run with the land. 11 Ladd v. Noyes, 137 Ma^s. 151. Compare Williams v. Beatty, 139 Mo. App. 167; 122 S. W. 323. In Stuhr v. Butterfield, 151 Iowa 736; 130 N". W. 897; 36 L. R. A. (N. S.) 321, it was held that a public drainage ditch was a benefit to the land, and hence that an order for the excavation of such ditch was not a breach of the covenant in a conveyance of the land subsequently executed. "McMullin v. Wooley. 2 Lans. (N. Y.) 394. Melick v. Cross, 62 N. J. KM 545; 51 Atl. 16. "Carbrey v. Willis, 7 Allen (Mass.), 364; 83 Am. Dec. 688. "Morgan v. Smith, 11 111. 199. Huyck v. Andrews, 113 X. Y. 81. "Mitchell v. Warner. 5 Conn. 498, 527, 06. "Craig v. Lewis, 110 Mas. 377; Isele v. Arlington Sav. Bank, 135 Mass. 142. Patterson v. Sweet. 3 111. App. 550. Whether known to the purchaser at the time of the conveyance or not. Medlar v. Hiatt, 8 Ind. 171. Contra. KuU v. McCune. 22 Wi. 028; 99 Am. Dec. 85. The right of a mill owner to eater on adjoining lands, through which a raceway from the mill passes, for the purpose of cleansing such raceway, is a right necessary to the enjoy- ment of hiit easement, which he would have independently of agreement or prescription, and is, therefore, not an incumbrance of which a grantee of the premise* traversed by the raceway can complain. Prescott v. Williams, 5 Met. (Mam.) 433; 39 Am. Dec. 698. As to whether the right in u down- stream mill owner to raise the water in his dam to a height that interferes COVENANT AUAJXST IXCUMBKAXCES. 325 land; 1 ' the right to use an adjoining wall as a support for joists; 18 the right to construct an irrigation ditch across the land ; 19 or to harvest, ice from a pond on the land, and to require the maintenance of a certain depth of water in the pond ; 20 or to maintain a telephone line along a highway opposite the premises under grant from the owner; 21 or the release of a railway com- pany from liability for damages from the operation of its road in front of the premises conveyed; 22 the right to extract resin from trees on the land. 23 These, and other easements and servitudes, 24 all constitute breaches of a covenant against incumbranees, if the purchaser had no notice of them at the time of the conveyance, and, in some of the States, whether he did or did not have such notice. 2 " If the easement or servitude complained of consist of a mere license, revocable at the will of the licensor, it will not, of with an adjoining up-stream mill owner, see Carey v. Daniels, 8 Met. (Mass.) 466. An owner of land may by parol waive his right to damages against a person flowing his land with a mill dam ; but such waiver is not binding on his grantee, and, therefore, constitutes no breach of his covenant against incumbranees. Fitch v. Seymour, 9 Met. (Mass.) 466. 17 Fraser v. Bentel, 161 Cal. 390; 119 Pac. 509; Ann. Cas. 1913B, 1062. "Kalin v. Cherry, 131 Ark. 49; 198 S. W. 266. "Friendly v. Ruff, 61 Oreg. 42; 120 Pac. 745. ^Gadow v. Hunholz, 160 Wise. 293; 151 N. W. 810; Ann. Cas. 1917D, 91. "Fossume v. Requa, 218 N". Y. 339; 113 N. E. 330. ^Tuskegee Land Co. v. Realty Co., (Ala.) 49 So. 378. "Brodie v. Mortgage Co., (Ala.) 51 So. 861. 24 The right in an adjoining owner to use a stairway on the granted premises is a breach of the covenant against incumbranees. McGowen v. Myers, 60 Iowa, 256; 14 N. W. Rep. 788. So also, the right of a railroad company to take earth and gravel from the granted premises. Taylor v. Oilman, 25 Vt. 413. The right of a stranger to enter on the premises for the purpose of cleansing a drain. Smith v. Sprague, 40 Vt. 43. The right of a canal company to appropriate the water in a stream bounding or traversing the premises. Ginn v. Hancock, 31 Me. 42. A condition that no ardent spirits shall be sold on the premises; such a condition is not invalid as being in restraint of trade. Hatcher v. Andrews, 5 Bush (Ky.), 561. The owner of a lot erected a building thereon with the stoop extending by mistake on an adjoining lot, of which he was an owner in common witli another. He then sold the house and lot, and afterwards acquired title in severally to the adjoining lot encroached iipon by the stoop. Held, that such acquisition did not create an easement entitling the owner of the first lot to maintain the stoop on the second; and hence, there resulted no breach of a covenant against incumbranees in a conveyance by the original owner of the lot encroached upon. Farley v. Howard, 70 N. Y. Supp. 51; 60 App. Div. 193. *Post, 127. 326 MARKETABLE TITLE TO REAL ESTATE. course, amount to an incumbrance, and will, therefore, operate no breach of the covenant. 28 A lease of a right to an adjoining proprietor to use a wall on the granted premises as a party wall is a breach of the covenant against iiicumbranoes. 17 So, also, a wall standing wholly on one lot with a right in the adjoining proprietor to use it creates a breach. 28 But the better opinion seems to be that a wall standing equally on both lots, and held in common by the adjoining proprietors, is not an incumbrance, but a valuable appurtenant which passes with the title to the property. 29 A covenant between adjoining proprietors that one may build a party wall, and that the other shall pay half the cost if he afterwards uses the wall, runs with the land and binds a subsequent purchaser who avails himself of the wall. 30 In such a case, it is apprehended, that if the purchaser bought with- " Patterson v. Sweet, 3 111. App. 550. r Giles v. Dugro. 1 Duer (X. Y.), 331. "Mohr v. Parmelee. 43 X. Y. Super. Ct. 320. "Hendricks v. Stark. 37 X. Y. 106; 93 Am. Dec. 949 (distinguished in O'Xeill v. Van Tassell, 137 X. Y. 297; 33 N. E. Rep. 314, and Corn v. Bass. 59 X. Y. Supp. 315) ; Mohr v. Parmelee, 43 N. Y. Super. Ct. 320. Bull v. Burton. 227 X. Y. 101; 124 X. E. Ill; Cap. City Inv. Co. v. Burnham, 143 Iowa 134: 121 X. W. 70S; Percivul v. Colonial Inv. Co., 140 Iowa 275; 11.". X. W. 941; 24 L. R, A. (X. S.) 293. In Hoffman v. Dickson, 65 Wash. 556: 118 Pac. 737; 39 L. R. A. (X. S.> 67; Ann. Gas. 1913B, 869, it was held that the value of the easement right of the one party could not be set off .iL'.nii-t the lien of the other party for one half of the cost of the wall. The existence of a party wall on the granted premises is no -breach of the cove- nant against incumbrance^, under a statute authorizing the adjoining owner at any time to build such a wall without incurring any liability to the owner. Bertram v. Curtis, 31 Iowa, 46. And where by statute adjoining proprietors have the right to use division walls as party walls no breach of the covenant occurs. Barns v. Wilson, 116 Pa. St. 303; 9 Atl. Rep. 437. "Richardson v. Tobcy, 121 Mass. 457; 23 Am. Rep. 283; Savage v. Mason. 3 C'UHh. (Mass.) 500. Burlock v. Peck, 2 Duer (X. Y.), 90. Compare Cole v. Hughes, 54 N. Y. 444; 13 Am. Rep. Oil. In Mackey v. Harmon, 34 Minn. 168; 24 X. W. Rep. 702, the whole wall was built by H., tinder an agreement that he xhotild be reimbursed by X., the adjoining owner, if he should after- wards join to the wall. X. conveyed to the plaintiff, who was compelled to pay one-half the co*t of the wall in order to build to it, and this was obviously hold a bread) of the covenant against incumhranccs contained in X.'H deed. See. lo, Blondeau v. Sheridan, 81 Mo. 545; Keating v. Korfhage, 88 Mo. 624. Burr v. Lamaster, (Xeb.) 4ft X. \V. Uep. 1015. An owner agreed, by reiairdcd contract, to pay half the coM of a party wall if one should bo built MI n to IK capable of use by him. and he made the prospective half of the cost COVENANT AGAINST INCUMBKANCES. 327 out knowledge of his liability to pay such cost he would be entitled to recover as damages the amount so disbursed by him. A mere dedication to public uses without evidence of use or acceptance by the public authorities is no breach of the covenant against incumbrances. 31 127. Notice of easement. There can be no doubt that a pecuniary charge upon the granted premises such as a judgment, a mortgage, or a vendor's lien, constitutes a breach of the covenant against incumbrance, though the purchaser was fully advised of its existence when the contract was made or the conveyance taken. The covenant is taken for the protection of the purchaser in case the incumbrance should not be removed by the seller and the pur- chaser be compelled to pay it at some future day. 32 But such an incumbrance in nowise interferes with the present enjoyment and possession of the estate, and is seldom considered in fixing the purchase price of the property, unless the purchaser undertakes to remove it as a part of the consideration. 33 Therefore, the question of notice of the existence of the incumbrance is immate- rial to the right of the purchaser to recover on the covenant. But with respect to an easement visibly and notoriously affecting the physical condition of the land at the time of the purchase, such as a public highway, 34 public levee, 35 drainage ditch right of way, 3 * a lien on his land. Afterward, without having built, he conveyed with war- ranty against incumbrances. It was held that on the purchaser's building the land was charged with a lien as per the party wall contract. Arnold v. Chamberlain, 14 Tex. Civ. App. 634; 39 S. W. Eep. 201. 31 De Long v. Spring Lake Imp. Co., (N. J. L.) 59 Atl. Rep. 1034. It has been held that an easement acquired by a city in condemnation proceedings does not constitute a breach of a covenant of the grantor that the premises are free from incumbrances made by Mm. Weeks v. Grace, 194 Mass. 296; 80 N. E. 220; 9 L. R. A. (N. S.) 1092. 32 Ante, cases cited, note 47, p. 311. 33 Kutz v. McCune,.22 Wis. 628; 99 Am. Dec. 85, where it was said that a pecuniary incumbrance does not affect the physical condition of the premises. It is a mere incident, and where the purchaser takes a covenant against incumbrances, there is no reasonable ground for supposing that he intended to have his land subsequently sold to pay the vendor's debt, or else pay it himself. 3< A public highway through the granted premises, laid out, opened, in use and known to the purchaser, is no breach of the covenant against incum- brances. Whitbeck v. Cook, 15 Johns. (N. Y.) 483; 8 Am. Dec. 272, leading case, in which, however, the covenant was that of seisin, and not against 328 MARKETABLE TITLE TO REAL ESTATE. incumbrances. The principle is the same in either case. Huyck v. Amhv\\s. 113 X. Y. 81; Hymes v. Esty, 116 N. Y. 501. Smith v. Hughes, 50 \Vis. t;-jn. Scribner v. Holmes, 16 Iml. 142. Butte v. Riffe, 78 Ky. 352. \Yeller v. Trust Co. 23 Ky. Law R. 1136; 64 S. W. Rep. 843. Lallande v. West. IS Ln. Ann. 290. Harrison v. Railway Co., 91 Iowa 114; 58 N. W. 1081. A public highway is generally regarded as a .benefit to the land: and whether so or not, the purchaser is presumed to have taken it into consideration, and to have fixed the price with reference to its supposed advantages or disad- vantages. STAPLES, J., in Jordan v. Eve, 31 Grat. (Va.) 1. "To hold that a public road running through a tract of land, \vhidi was known to the pur- chaser at the time of his purchase, is such an incumbrance as would con- stitute a breach of a covenant of warranty against incuinhranccs. would produce a crop of litigation in this State that would be interminable.'' Per curtain. Desverges v. Willis, 56 Ga. 515; 21 Am. Rep. 2S9. Ake v. Mason. 101 Pa. St. 21. This was an extreme case. .The highway (a street) had been laid out, but not opened, and the grantee had no other notice of its existence than constructive notice of the proceedings under which it was laid out. A strip was taken from one end of the premises by the highway. This was held no breach, SHABSWOOD, C. J., and TURNKEY, P., dissenting. It appeared, however, that the condemnation money had not been paid, and it was intimated that the remedy of the grantee was against the pulilie authorities. Highway no breach; Smith v. Hughes, f,( \Yi>. Crl(\. Scrihner v. Holmes, 16 Ind. 142. An alley known to the purchaser is no incuinliranee. Haldane v. Sweet, 55 Mich. 196, .per COOLEY, J., who said: "The alleys were open to observation at the time (of the purchase), and the (grantee) must have known all about them and bought with them in mind." If the high- way be laid out, but not opened, and the purchaser has no actual not ire of its existence, he will be entitled to damages, llymes v. Esty, 110 N. V. .lit]. People's Sav. Bank v. Alexander, 3 Cent. Rep. 388. So, also, where the premises encroach upon a public highway, but the encroachment is not visible to the purchaser. Trice v. Kayton, 84 Va."217; 4 S. E. Rep. 377. If the highway be merely laid out and not visibly opened, and there lie nothing '" charge the purchaser with notice of its existence, the covenant will of cour-e be broken. James v. \\arehous,. c,,., (Ky.) 56 S. W. Rep. 19. HMD f, 116 N. Y. 501, the court Baying that the rule that a covenant of war- ranty is not broken by the existence of a public highway through the war- ranted premises rests upon the presumption arising from the opportunity furnished the pun ha-er by the apparent existence or ii-e of the highway to take notice of it, and in such case he is charged with knowledge and i- presumed to have purchased with reference thereto. But this rule does not apply where, at the time of the conveyance, there was no indication or notice, .:il or constructive, of the existence of a highway or public easement; in c a>e, where there i- a subsequent appropriation for a highway by tho public in the exercise of a pre-existing right (the street in this case having actually laid out and condemned but not opened) the covenant is broken. These remarks were made in respect of a covenant of warranty, but they apply with equal force to the covenant against incumbrnnces. In the f.d- lowing cases a public highway over the premises has been held a hren COVENANT AGAINST INCUMBRANCES. 329 the covenant against incumbrances, without regard to the question of notice on the part of the purchaser. Kellogg v. Ingersoll, 2 Mass. 101. Hubbard v. Norton, 10 Conn. 422. Butler v. Gale, 27 Vt. 739. Pritchard v. Atkinson, :> X. H. 335. If the public road has been located but not opened, it will be treated as an incumbrance. Herrick v. Moore, 19 Me. 313. The highway must be shown to have been legally laid out. If the record do not show all the necessary proceedings, the highway must have been in use for such a length of time that a jury would be justified in presuming that the road was legally laid out, and damages paid to the land owners. Pritchard v. Atkin- son, 3 N~. H. 336. The covenant against incumbrances will not be broken if the highway merely bounds instead of traverses the premises. Frost v. Angier, 127 Mass. 212. Austin street, formerly a private way, was laid out in July, 1882. Part of the premises taken were conveyed as bounded on Austin street, with covenant against incumbrances, in December, 1882. In 18S3 the street was opened and graded. Held, that there was no breach of the covenant against incumbrances, even though the grantor had executed a release of damages to the city, and that the grantee could' not recover damages from the grantor caused by lowering the grade of the street. Patten V. Fitz, 138 Mass. 456. A street laid out, and dedicated but not opened, constitutes a breach of a covenant against incumbrances, whether the city had or had not accepted the dedication. Daisy Realty Co. v. Brown, 18 Ky. Law R. 155; 35 S. W. 637. Under Mass. Stats. 1891, no incumbrance is created by preliminary proceedings' to lay out a street in Boston, until a plan is filedi. French v. Folsom, 181 Mass. 483; 93 K E. Rep. 938. Where the entire premises conveyed consisted of a strip of land that had been dedicated, accepted, and vised as a public highway or street, it was held that there was a breach of the covenant 'against incumbrances. Turner v. State Bank, 101 Kan. 493; 167 Pac. 1052. Recent Cases. Walquist v. Johnson, 103 Wash. 30; 173 Pac. 735; Hoyt v. Rothe, 95 Wash. 369; 1G3 Pac. 925; Crams v. Durdall, 154 Iowa 468; 134 X. W. 1086; Sandum v. Johnson, 122 Minn. 368; 142 N. W. 878; 48 L. R. A. (N. S.) 619 Killen v. Funk, 83 Neb. 622; 120 1ST. W. 189; 131 Am. St. Rep. 658. In McWhorter v. Forney, 69 Wash. 414; 125 Pac. 164, it was held that a well-defined public road across the land, if a detriment and not a benefit to the land, was a breach of the covenant against incumbrances. In Newmyer V. Roush, 21 Idaho 106; 1^0 Pac. 464; Ann. Cas. 1913D, 433; a distinction was drawn between a public highway and a private road the former being held not to be, and the latter to be, a breach of the covenant against incum- brances. An unopened highway dedicated to public tise but giving no indica- tion of its existence, is a breach of the covenant. McAndrews & C. Co. v. Bank, 87 N. J. L. 231; 94 Atl. 627; Ann. Gas. 1917C, 146. M Schurger v. Mooreman, 20 Idaho 97; 117 Pac. 122; 36 L. R. A. (N. S.) 313; Ann. Cas. 1912D, 1114. Ireton v. Thomas, 84 Kan. 70; 113 Pac. 306; 32 L. R. A. (N. S.) 737. 3G Birkett v. De Vans, 206 111. App. 187; in which case it was held, how- ever, that only nominal damages could be recovered if the construction of the ditch would be a benefit to the land. See post, 132. 42 330 MARKETABLE TITLE TO KEAL ESTATE. irrigation ditch. 57 public sewer, 88 railway, 89 or canal, a different rule as to the effect of notice upon the right to recover has been established in many of the States. In such a case the purchaser has no contingent or prospective enforcement of the incumbrance to provide against with covenants for title. There would be neither reason, utility, nor convenience in requiring the vendor to covenant against a fact that depreciates the value of the premises, but is capable of accurate and equitable adjustment l>etween the parties in fixing the purchase price. The purchaser is presumed to have taken into consideration the existence of the incumbrance. and any loss or inconvenience it might occasion him, "Schurger v. Mooreman. 20 Idaho 97; 117 Pac. 122; 36 L. R. A. (X. S.) 313; Ann. Cas. 19121). 1114. But the right of way for an unopened ditch is a breach of the covenant. Feldhut v. Bruinmitt, 96 Kan. 127 ; 150 Pac. 549. "Burke v. Tralme. 13" Ky. 5SO; 126 S. W. 125; Kahn v. Cherry, 131 Ark. 49; 198 S. W. 266; First Unitarian Soc. v. Cit, &c. Trust Co., 162 Iowa 389; 142 N. W. 87; 51 L. R. A. (X. S.) 428; Ann. Oas. 1910B, 575. Smith v. Hughes, 50 Wis. 620; 7 N. W. 653. This would probably be so held wherever it is held that a public highway known to the purchaser would not be an incumbrance. And obviously wherever it is hold that a public highway is such a breach, a railway through the premises would also be so held. Kellogg v. Malin, 50 Mo. 496; 11 Am. Rep. 426. Beach v. Miller, 51 111. 206; 2 Am. Rep. 290. Barlow v. McKinley, 24 Iowa, 70. Kostendader v. Pierce, 37 Iowa, 645. Fierce v. Houghton, (Iowa) 98 X. W. Rep. 306. Burke v. Hill, 48 Ind. 52; 17 Am. Rep. 731. Farrington v. Tourtellot, 30 Fed. Rep. 738. Van Xess v. Royal Phosphate Co., 60 Fla. 284; Ann. Cas. 1912C, 647: 30 L. R. A. (X. S.) 833; 53 So. 381; Goodman v. Heilig. 157 X. C. 6; 72 S. E. 866: 30 L. R. A. (N. S.) 1004. In McDonald v. Ward, 99 Wash. 354; 169 Pac. 851: L. R. Ann. Cas. 1918F. 662, it is said that the weight of authority is that the existence of the railway right of way is a breach of the covenant: citing Matthews v. Livingston. 86 Conn. 263; 85 All. 529; Ann. Cas. 1914A. 195. In Gerald v. Klley, 51 Iowa, 317, it was held that the mere fact that a railroad company exercises a right of way, is not of itself a breach of the covenant against incumbrances. The company my be a trespasser. It must lx> shown that the right of way has been lawfully acquired. The grantor cannot have his covenant against incum- brance* reformed on the ground that he did not know that it would extend to and embrace a railroad right of way over the land, known to the grantee when the covenant wnn made. Gerald v. Elley, 45 Iowa, 332. An unopened railroad right of way in possession of the company will constitute a breach of the covenant against incumbrances. Brims v. Schreiber, (Minn.) 51 X. W. Rep. 120; especially where the right of way has been graded. Wise. Cent. Ry. Co. v. Schug. 155 Wise. 563; 145 X. W. 177. The encroachment of the premises upon it railroad right of way. for which the covenanter WUH com- pelled to pay. i- a breach of the covenant. Pritchard v. Rcbori, 135 Tenn. 32S: IRC, S. W. 121. COVENANT AGAINST INCUMBKANCES. 331 and to have agreed upon the consideration to be paid as the value of the premises with the incumbrance. 40 It is inconceivable that the purchaser would agree to pay more for the incumbered premises than they were worth, merely because he could recover damages on the covenant to the extent of such excess. If then, having bought the premises at their depreciated value, with reference to the visible easement, he should be permitted to recover damages for the breach of the covenant against incum- brances resulting from such easement, it is plain that he would be twice compensated for any damage or depreciation in value which the premises may have sustained. In some of the States these principles are declared applicable to any purchase with notice of the easement, without regard to the nature of the ease- ment, whether public or private ; 41 in one State, at least, they 40 Patterson v. Arthur, 9 Watts (Pa.), 152. Jaques v. Tomb (Cal.) 177 Pac. 280; Sachs v. Owings, 121 Va. 162; 92 S. E. 997. 41 Deacon v. Doyle, 75 Va. 258. Memmert v. Mclveen, 112 Pa. St. 315, where the alleged incumbrance consisted of the stone steps of an adjoining house, which were so constructed as to occupy a part of the sidewalk in front of the plaintiff's house. Kutz v. McCune, 22 Wis. 628; 99 Am. Dec. 85, a mill pond of many years standing. Haldane v. Sweet, 55 Mich. 196, an alley. James v. Jenkins, 34 Md. 1 ; 6 Am. Rep. 300. Here the question Was whether the right of an adjoining proprietor to forbid the erection of a wall on the granted premises to such a height as to obstruct the light and air from his windows, constituted a breach of a covenant of special warranty in a conveyance of such premises. Mr. Justice ALVEY, answering this ques- tion, and delivering the opinion of the court, said : " This depends upon the apparent and ostensible condition of the property at the time of the sale. And as the wall had been erected, and the lights therein were plainly to be seen when the appellant purchased the property overlooked by them, it is but rational to conclude that he contracted with reference to that condition of the property, and that the price was regulated accordingly. The parties, in the absence of anything to the contrary, are presumed to have contracted with reference to the then state and condition of the property, and if an easement to which it is subject be opened and visible, and of a continuous character, the purchaser is supposed to have been willing to take the property as it was at the time, subject to such burden. That being so, the covenants in the deed must likewise be construed with reference to the condition of the prop- erty at the time of conveyance. The grantor, by his covenant, warranted the premises as they were, and by no means intended to warrant against an existing easement which was open and visible to the appellant, and over which the former had no power or control whatever. To construe the cove- nant to embrace such subject would most likely defeat the understanding and intention of the parties, certainly of the grantor." Citing Washburn on 332 MAKKKTABLE TITLE TO HEAL ESTATE. arc restricted to the single case of a purchase with notice of a public highway through the premises; 42 and in others they are rejected altogether, upon the ground that notice of an incum- brance at the time of the conveyance cannot affect the right to recover on a covenant against incumbrancee. 4 * In a recent well- considered case in Pennsylvania 44 it was observed by the court that incombrances are of two kinds, (1) Such as affect the title; and ('2} Such as affect only the physical condition of the property. A mortgage or other lien is a fair illustration of the former; a public road or right of way of the latter. Where incumbrances of the former class exist, the covenant against incumbrances is broken the instant it is made, and it is of no importance that the grantee had notice of them when he took the title. 46 Such incum- brances are usually of a temporary character and capable of re- moval ; the very object of the covenant is to protect the vendee Easements, 68, and approving Patterson v. Arthur. 9 Watts (Pa.), 154. Se, also, Xewbold v. Peabody Heights Co., 70 Md. 493; 17 All. Rep. 372. Con- structive notice of a building restriction from the record of a deed in which it is contained does not affect the right of a subsequent grantee to recover on a covenant against incumbrances, but actual notice of the restriction it was intimated would go in mitigation of the damages. Roberts v. Levy, 3 Abb. Pr. (N. S.) 311. "New York, Huyek v. Andrews, 113 N. Y. 81; 20 X. E. Rep. 581, disap- proving Kutz v. McCune and Memmert v. McKeen, supra. Helton v. Asher, 135 Ky. ".">!: 123 S. W. 283. 41 Van Wagner v. N'ostraml. 19 Iowa, 422: Barlow v. McKinley. 24 Iowa, 69; McGowan v. Myers, 60 Iowa. 256; 14 N. W. Rep. 788; Flynn v. White Breast Coal Co., 72 Iowa, 738: 32 N. W. Rep. 471. Fierce v. Houghton (Iowa), 98 X. W. Rep. 306. Morgan v. Smith. 19 111. 199. Butler v. Gate, 27 Vt. 739. Watts v. Fletcher. 107 Ind. 391; 8 X. E. Rep. Ill; Burk v. Hill, 48 Ind. 52; 17 Am. Rep. 731; Medlar v. Hiatt, 8 Ind. 171: McHargue v. Calchina, 78 Oreg. 326; 153 Par. 99; Quick v. Taylor. 113 Ind. 540; 16 N. E. Rep. 588. In this case it seems that the right of way had been condemned but not opened. Teague v. Whaley. 20 Ind. App. 26; 50 N T . E. Rep. 41; Whiteside v. Magruder. 75 Mo. App. 364, an unopened railway right of way. Scott v. Tanner. (Mo. App.) 208 S. W. 264. Foster v. Foster, 62 X. II. 532. See, also, canes cited, ante, thin section, to proposition that public highway or railway traversing the premises is breach of covenant against incumbrances. This is true enough, a* observed by Mr. Hawle (CovU. for Title 1 5th ed.1, 76. note 3), where the thing complained of is really an incumbrance, but loses its application where the question is whether -HI h thing is in fact an inciimhrance. Memmert v. McKeen, 112 Pa. St. 320. "Catheart v. Bowman. 5 Pa. St. 317; Funk v. Voneida, 11 Serg. & R. (Pa.) 109: 14 Am. Dec. 617. COVENANT AGAINST INCUMBRANCES. 333 against them; hence, knowledge, actual or constructive, of their existence is no answer to an action for the breach of such a cove- nant. Where, however, there is a servitude imposed upon the land which is visible to the eye, and which affects not the title but the physical condition of the property, 46 a different rule prevails. Thus it was held that where the owner had covenanted to convey certain lots free from all incumbrances, a public road which occupied a portion of the lots was not an incumbrance within the meaning of the covenant. 47 This is not because of any right acquired by the public, but by reason of the fact that the road, although admittedly an incumbrance, and possibly an injury to the premises, was' there when the purchaser bought, and he is presumed to have- had 1 knowl- edge of it. In such and similar cases there is the further presump- tion that if the incumbrance is really an injury, such injury was in the contemplation of the parties' and that the price was regu- lated accordingly. The rule that a purchaser, with notice of an easement affecting the premises, cannot complain thereof as a breach of the covenant against incumbrances unquestionably applies where the easement is obviously an appurtenance or incident of the estate, aSTothing which constitutes part of an estate, or which, as between- the par- ties, is to be regarded as an incident to which the estate is subject, can be considered an incumbrance. 48 And where the owner of two 40 Such, as an irrigation ditch. Sisk v. Caswell, 14 Cal. App. 377; 112 Pac. 185; Ireton v. Thomas, 84 Kan. 70; 113 Pac. 306. "Patterson v. Arthur, 9 Watts (Pa.), 152. But a telephone line in opera- tion along a highway in front of the granted 'premises and visible to the purchaser, has been held to be none the less a breach of the covenant against incumbrances. Fossume v. Requa, 218 N. Y. 339; 113 N". E. 330. The encroachment of the premises upon a street which was abandoned by the public many years after the encroachment began, has been held not to be a breach of the covenant. Deutzmann v. Kuntze, 147 Iowa 158; 125 N. W. 1007. ^Dunklee v. Wilton R. Co., 4 Fost, (N. H.) 489. In this case the plaintiff conveyed to the defendants a right of way for their railroad, which inter- sected a mill race owned by the plaintiff. The action was to recover dam- ages from the defendant for building a culvert at a point which caused a deflection and less ready discharge of the waters of the race. The right to have the water flow freely under or across the defendant's right of way was held no breach of a covenant against incumbrances in the plaintiff's deed, and, therefore, that he was not estopped by such covenant to maintain the action. 334 MARKETABLE TITLE TO REAL ESTATE. tenements sells one of them, the purchaser takes the portion sold with and subject to all the benefits and burdens which appear at the time of the sale to belong to it, as between it and the property which the owner retains. 49 Where a landowner has created a servitude upon one portion of his land for the benefit of another portion, and conveys the servient part, there is an implied reservation of the easement if necessary to the enjoyment of the land reserved ; and the existence of such an easement does not constitute a breach of a covenant against incumbrances or of general warranty, if the easement was so open and apparent that the covenantee must have been aware of its existence. 60 It is suggested, with diffidence, that it is immaterial, so far as the mere question of damages is concerned, whether a highway or other easement of which the purchaser had notice, shall be con- sidered a technical incumbrance. If he bought, knowing that the easement was there, it will be presumed that the price he agreed to pay was the value of the land after allowing for the loss, incon- venience or injury occasioned by the easement. On the other hand, if it appear that the easement is a benefit instead of a bur- den to the premises, there is no loss or injury to the grantee. 51 In either case it would seem that he could recover only nominal James v. Jenkins, 34 Md. 1; Am. Rep. 300. Seymour v. Lewis, 2 Bens. (N. J.) 439. Harwood v. Benton, 32 Vt. 724. Kutz v. McCune, 22 Wis. 628; 90 Am. Dec. 85; Bennett v. Booth, 70 \V. Va. 264; 73 S. E. 909; 39 L. R. A. (N. S.) 618. In both of these cases part of the land conveyed was covered by a mill-pond, and it was held that the implied reservation of the right to maintain the pond for the u*c of the mill, was no breach cf the covenant against incumbrances. Hymes v. Ety, 133 N. Y. 342; 31 N. E. Rep. 105. Stuhr v. Butterfleld, 151 Iowa 736; 130 N". W. 897. Mr. Rawle concludes that an easement beneficial to the premises cannot be an incumbrance, and, therefore, cannot be a breath, technical or substantial, of the covenant against incumbrances. Also, that parol evidence may be received as to the nature of the alleged incumbrance, and that the question whether the same be or be not in fact an incumbrance, is not a mere abstract question of law, but a question of fact to be determined by the jury upon consideration of all the surrounding circumstances, such a the advantages or disadvantages accruing to the premises from the easement, notice to the purchaser, the price agreed to be paid, etc. (Covenants for Title [5th ed.], *< 76, 86). But see Eddy v. Chace, 140 Mass. 471; 5 N. E. Rep. 306, where it was said that the construc- tion of a deed, and the operation and extent of the covenants therein con- COVENANT AGAINST INCUMBRANCES. 335 damages for the breach. 52 It may even be doubted whether the easement, when it is a benefit, could be regarded as a technical breach of the covenant so as to entitle the plaintiff to a judgment for costs. If the grantee elect, for a number of years, to treat the easement as a benefit, he will be estopped to set it up as a breach of the covenant, 53 128. ASSIGNABILITY OF THE COVENANT AGAINST INCTJM- BBANCES. The covenant against incumbrances, like the covenant of seisin, has been generally held in the American States to be an agreement as to the pres&nt state of the title, and to be broken as soon as made, if, at the time of tlie covenant, there be an incum- brance on the premises, and that, consequently, all rights of action for breach of contract being incapable of assignment at common law and by the statute 32 Hen. VIII, c. 24, a grantee of the cove- nantee, or one claiming under him, could bring no action at law in his own name for the breach; in other words, that the covenant against incumbrances does not run with the land. 04 This rule does tained is for the court and not for the jury, and that it cannot 'be left to the latter to say whether, upon the evidence, a covenant against certain incum- brances was intended by the deedi 52 Post, 132. ^Ladue v. Cooper, 67 X. Y. Supp. 319; 32 Misc. Rep. 544. 54 See, generally, the cases cited to the proposition that a covenant of seisin does not run with the land, ante, 111. See, also, Lawrence v. Montgomery, 37 Cal. 183. Woodward v. Brown, 119 Gal. 283; 51 Pac. Rep. 2, 542. Mc- Pike v. Heaton, 131 Cal. 109; 63 Pac. Rep. 17D. Heath v. Whidden, 24 Me. 383. Mygatt v. Coe, 124 N. Y. 212; 26 N. E. Rep. 611. Stewart v. Drake, 9 N. J. L. 139; Garrison v. Sandford, 12 N. J. L. 261. Blondeau v. Sheridan, 81 Mo. 545. Osborne v. Atkins, 6 Gray (Mass.), 423; Smith v. Richards, (Mass.) 18 N. E. Rep. 1132. Guerin v. Smith, 62 Mich. 369; 38 N. W. Rep. 906. Smith v. Jefts, 44 N. H. 482. Fuller v. Jillette, 9 Biss. (U. S.) 296, obiter. Sears v. Broady, 66 Neb. 207; 92, N. W. Rep. 214; Waters v. Bagley, (Neb.) 92 N". W. Rep. 637. Brass v. Vandecar, Wi-. 17. Hawthorne v. City Bank, 34 Minn. 382. This rule seema also to have been recognized in Virginia. Wash. City Savings Bank v. Thornton, 83 Va. 157; 2 S. E. Rep. 103, rlictum, citing Dickinson v. Hoomes, 8 Grat. (Va.) 353; Sheffey v. Gardner, 79i Va. 313. It is settled in New York that a covenant against incumbrances runs with the land, and that a remote grantee may sue on the original covenant. Geiszler v. De Graaf, 166 X. Y. 330; 59 N. E. Rep. 003: 82 Am. St. Rep. 650; Mandigo v. Con !Hi \. Y. Snpp. 324; 45 Misc. 389. In Clarke v. Priest. 17 X. Y. Supp. 489; 21 App. Div. 174, the rule was thus stated: If the covenantee has on an alienation of the property by him, either rendered himself liable to liis grantee by a covenant against im mnhranccs, or, by his conveyance, estopped himself from asserting title to the incumbrance, as against his grantee, should he afterward acquire it, then his deed should be held to operate as an assign- ment to his grantee of his right of action against his grantor. The husband of a (lei,-.icd Cramer, not being a party to the deed containing a covenant against incumbrances, nor a--ignec of such covenant, cannot maintain an action for breach thereof, though he joined his wife in a deed conveying the premi-ex with a covenant again-t incunrbrances. Ladd v. Montgomery, 83 Mo. App. 356. "Rawle Cuvts. 55 70, 212. In Brisbane v. M. -Crady, 1 Xott & McC. (S. C.) 101. it was held that a covenant that the land was free from in< mn- brances was equivalent to a covenant that the grantee should quii-My enjoy the premises free from incumbrances, and being thus prospective in its char- COVENANT AGAINST INCUMBRANCES. 337 As a general rule the cases which decide that the covenant of seisin does not run with the land, apply the same rule to the cove- nant against incumbrances, and the reader is referred to the remarks in this work on the assignability of the covenant of seisin, and to the cases there cited, as being, in the main, applicable to the covenant against incumbrances. 57 In several of the States, how- ever, in which it is held that a covenant of seisin does not run with the land, a subsequent grantee of the land has been permitted to recover for a breach of the covenant against incumbrances. 58 acter, would pass with the land to a subsequent grantee. See, also, Jeter v. Glenn, 9 Rich. L. (S. C.) 376. Tuskegee Land Co. v. Realty (Ala.) 49 So. 378. "Ante, > 112. 58 Richard v. Bent, 59 111. 38; 14 Am. Rep. 1. Newman v. Sevier, 134 111. App. 544. In Ernst v. Parsons, 54 How. Pr. (N. Y.) 163, it was held that in redeeming land, which had been conveyed with warranty against incum- brances, from a tax sale, a remote grantee did that which it was the cove- nantor's duty to do, and that so long as the tax lien remained unpaid there was a continuing breach of the covenant, for which the remote grantee had a right of action. The rule that a covenant of seisin is broken as soon as made, and, being a chose in action, cannot run with the land, is perhaps nowhere more firmly established than in the State of Massachusetts. It has been intimated there, however, that the same rule would not apply in the case of a ^breach of the covenant against incumbrances. In Sprague v. Baker, 17 Mass. 589, it was held by WILDE, J. : "There was a breach of the cove- nant (against incumbrances), it is true, before the assignment; but for this breach the covenantee could only have recovered nominal damages. The actual damages accrued after assignment. They were sustained by the assignee, and not by the covenantee, who has no interest in them, except what arises from his covenants with the assignee. But suppose there had been no such covenants, or suppose the covenantee to be insolvent; then unless the assignee can maintain the present action he is without remedy. This certainly would not be right; nor do I think that such is the law. It .seems to me that, if the present case required a decision upon that point, we might be well warranted in saying that the covenant against incum- brances, notwithstanding the breach, passed to the assignee, so as to entitle him to an action for any damages he might sustain after the assignment, because the breach continued and the ground of damages has been materially enlarged since that time, so that the assignee's title does not depend upon the assignment of a mere chose in action. He is principally interested in the covenant ; that those covenants run with the land in which the owner is solely or principally interested, and which are necessary for the maintenance of his rights. Covenant lies by an assignee on every covenant which concerns the land. Com. Dig. B. S." The foregoing remarks would seem to apply with equal force in a case in which actual damages from a breach of the covenant 43 338 MARKETABLE TITLE TO REAL ESTATE. The rule that a covenant against incumbrances does not run with the land, is comparatively unimportant where the deed con- tains also a covenant of warranty, which, of course, must always be the case in those jurisdictions in which by statute or judicial construction, a covenant of warranty includes a covenant against incumbrances. The covenantee may wait until he is actually evicted by enforcement of the incumbrance, or he may suffer a constructive eviction by discharging the incumbrance in order to prevent an actual dispossession, and in either case recover for breach of the warranty, regardless of the covenant against incum- brances. 69 No damage, as a general rule, flows from the breach of the covenant until the incumbrance has been actually or con- structively enforced, and when that occurs the covenant of war- ranty is broken and an action for damages immediately accrues in favor of the pterson then owning the premises. 60 Of course if the damage from a breach of the covenant against incumbrances accrue, that is, if the incumbrance be enforced, be- fore the land passes from the covenantee, the right to recover for the damages thence ensuing would not pass to a subsequent grantee or to the heir of the covenantee.* 1 The provisions of the Code, that every action shall be brought by the real party in interest, has been construed to give to a grantee of the covenantee -the right to maintain an action in his own name for a breach of the covenant against incumbrances. 61 of seisin have been sustained by the assignee. In Stinson v. Stunner, 9 M.i--. 143; 6 Am. Dec. 49, a remote grantee was permitted to recover on a covenant against incumbrances. The dbjection that the right of action did not pass to him was not made. Later decisions in Massachusetts have dis- regarded those cases, and the rule that the covenant against incumbrances does not run with the land may be considered to be settled in that State Osborne v. Atkins, 6 Gray (Mass.) 423; Whitney v. Dinsmore, 6 Cush (Mass.) 128. Worley v. Hineman, (Ind.) 33 N. E. Rep. 260. Mauzy v. Flint, 42 Ind. App. 386; 83 N. E. 757. Maitlen v. Maitlen, 44 Ind. App. 559; 89 N. E. 966. Tufts v. Adams, 8 Pick. (Mass.) 549; Thayer v. Clemence, 22 Pick. (Maw.) 490. Lloyd v. Quimby, 5 Ohio fit. 262. "Frink v. Belli*, 33 Ind. 135; 5 Am. Rep. 193. 2 Sugd. Vend. (8th Am. ed.) 577 (237). "Andrews v. Appel, 22 Hun (N. Y.), 429. This was an action on a cove- nant against incumbrances brought, by the last grantoe, after several mesne conveyances. The plaintiff had been compelled to redeem the land from a tax COVENANT AGAINST INCUMBRANCES. 339 In the State of New York, where it is held that the covenant against incumbrances runs with the land, it is also held that a subsequent co'nveyance " subject to " an incumbrance constituting a breach of the covenant in the original conveyance, breaks the continuity of the covenant and extinguishes its 1 benefits, so that a subsequent grantee who acquires title under a deed containing such a covenant, cannot recover upon it as against the original grantor. 63 129. MEASURE OF DAMAGES. General Rules. Incumbrances are of two kinds, namely: (1) Pecuniary, or those which the debtor, his creditors and purchasers from him, have a right to remove after maturity by payment of the debt which the incum- brance secures 1 , such as a mortgage, deed of trust, judgment or other lien. 64 (2) Permanent, or those which cannot be removed without the consent of him who has the right, such as an out- standing life estate, an unexpired lease, a. right of way, easement, building restriction or the like. If the breach of the covenant against incumbrances consist in the existence of a pecuniary incumbrance upon the estate the covenantee can recover no more than nominal damages if he has not been disturbed in the enjoy- ment of the estate or has paid nothing or sustained no loss on account of the incumbrance. 6 " But he will be entitled to nominal sale under tax liens existing at the time the original conveyance was made. The court held that the plaintiff having suffered the loss occasioned by the incumbrance, was the real party in interest and acquired the right to enforce the covenant by an assignment implied in equity from the original, and each successive conveyance. 2 Story Eq. 1040. "Geiszler v. De Graaf, 166 N. Y. 329; 59 N. E. Rep. 993. * 4 As to the right of a purchaser or creditor to pay off an incumbrance and be subrogated to the rights of the incumbrancer, see Sheldon on Subrogation, 29 et seq. 5 Sedg. Dam. p. 953; Rawle Covt. (5th ed.) 188; 3 Washb. Real Prop. (3d ed.) 495. Delavergne v. Norris, 7 Johns. (1ST. Y.) 359; 5 Am. Dec. 281, leading case; Stanard v. Eldridge, 16 Johns. (N. Y.) 254; Andrews v. Appel, 22 Hun (N. Y.), 474; Reading v. Gray, 37 N. Y. Super. Ct. 70, distinguish- ing Rector v. Higgins, 48 N. Y. 532; McGuckin v. Milbank, 83 Hun (N. Y.), 473; 31 N". Y. Supp. 1049. Prescott v. Trueman, 4 Mass. 627; 3 Am. Rep. 249; Wyman v. Ballard, 12 Mass. 304; Brooks v. Moody, 20 Pick. (Mass.) 474; Harrington v. Murphy, 109 Mass. 299. Bean v. Mayo, 5 Gr. (Me.) 94; Randell v. Mallett, 14 Me. 51; Clark v. Perry, 30 Me. 148. Richardson v. Dorr, 5 Vt. 9. Briggs v. Morse, 42 Conn. 258. Brown v. Brodhead, 3 Whart. (Pa.) 88. This was an action on a title-bond to indemnify the purchaser 340 MARKETABLE TITLE TO BEAT, ESTATE. damages though the incumbrance was paid off before his action against incumbrances. Pomeroy v. Burnett, 8 Bl. (Ind.) 142; Reasoner v Edmundson, 5 Ind. 393; Black v. Coan, 48 Ind. 385; Bundy v. Ridenour, 6J Ind. 406. Willets v. Burgess, 34 111. 494. Lane v. Richardson, (X. C.) 1( S. E. Rep. 189. Wilcox v. Musrhe, 39 MSch. 101; Norton v. Colgrove, 41 Mich 544. Egan v. Yearman, (Tenn.) 46 S. W. Rep. 1012. Eaton v. Lyman, 3( Wis. 41, Dixox. C. J., dissenting, held the co\-enant could not even recovc.j nominal damages. If the grantee, selling the premises, receive, in con sequence of the incumbrance, a less price than he would have received if th< incumbrance had not existed, he will be entitled to recover as damages th< difference between what he actually received and what he would have receive* if there had been no incumbrance. McGuckin v. Milbank, 152 X. Y. 297; 46 X. E. Rep. 490. Recent Cases. D'Amelio v. Abraham, 105 N. Y. Supp. 1019, S. C., 10J X. Y. Supp. 1128; Gen. Underwriting Co. v. Stilwell, 123 N. Y. Supp. 653; 139 App. Div. 189; King v. Union Tr. Co., 133 X. Y. Supp. 18; 148 App Div. 110; Killilea v. Douglas, 133 Wta. 140; 113 N. W. 411; 126 Am. St Rep. 938; 17 L, R. A. (X. S.) 1189. X. Y. City v. Tranp'n. Co., 172 N. Y Supp. 495; 104 Misc. Rep. 438; Woods v. Bennett, (Cal. App.) 181 Pac. 25; Internat'l Dev. Co. v. Clemans, 59 Wash. 398: 109 Pac. 1034; Seldon v. Jones Co., 89 Ark. 234; 116 S. W. 217; Ledowsky v. Rubin, 194 111. App. 442. Ir Boice v. Coffeen, 158 Iowa 705; 138 X. W. 857, it was held that the rul( stated in the text does not control in equity suits, and that a court of equity may provide in the decree for substantial damages which the covenante< must incur in paying off an incumbrance in the future. It is easy to see that a pecuniary incumbrance upon the premises may be a source of loss or injury to the covenantee in some way other than the men removal of the incumbrance, and that a breach of the covenant of seisin may result in serious loss to the covenantee, though the adverse title nevei be asserted. Thus, it frequently happens that negotiations for the sale ol the property are broken off upon the discovery of an incumbrance or a defect in the title, the purchaser preferring to abandon his bargain rather than await the removal of the objection. In such a case the incumbrance, or the defect, is the immediate and proximate cause of the loss of the sale. The injury need not consist in the loss of a bargain, or the difference between the consideration money, paid by the covenantee, and that which he was tc receive from the prospective purchaser; the right of action, if any exist would be for the lo of the opportunity to sell. This question was rained in McCarty v. Leggett, 3 Hill (X. Y.), 134, but was not decided, the judg- ment of the court below having been reversed, and the case sent back on other grounds. A practical inconvenience, however, resulting from a recovery of damages in such a cane would be that the recovery would satisfy the breach, it !s apprehended, and the judgment might be pleaded in bar of any further action in cane the incumbrance should be enforced, or the cove- nantee evicted. Rawle Covt. (5th ed.) I 189. If, however, he should remove the incumfcrance, there seems to be no reason why the covenantee should not, in addition to the amount paid for that purpose, recover damages for what- ever actual injury he may have sustained from U* existence, provided the COVENANT AGAINST INCUMBRANCES. 34*1 was commenced. 66 In Massachusetts 1 it has been held that in case of a breach of this covenant, resulting from an outstanding inter- est in the premises in favor of a tenant in common, the covenantee may recover substantial damages though the incumbrance has never been enforced by proceedings for partition. 67 The mere fact that the property has depreciated in value during the period intervening between the execution of the deed and the time when incumbrances on the property became barred by the statute of limitations, does not entitle the covenantee to damages, where he has paid nothing on account of the incumbrance, and has never been disturbed in the possession and enjoyment of the fiS premises. In a case in which the deed contained a covenant to " pay and satisfy " 011 demand, a particular judgment against the grantor, which was a lien on the premises conveyed, it was held that the covenantee was entitled to recover the amount of the judgment as damages for a breach of the covenant, though he had neither paid, nor had been called upon to pay, anything on that account. The distinction made by the court was that a covenant to " pay and satisfy " was more onerous than a mere covenant of indemnity. 69 It seems that a judgment for nominal damages for a breach of the covenant against incumbrances will operate as a bar to any future recovery upon the covenant, after actual damages shall have been sustained. 70 Practically the rule is of no great importance, total recovery do not exceed the consideration money and interest. In Har- rington v. Murphy, 109 Mass. 299, it was held that the covenantee could not recover as damages a sum paid by him to an auctioneer for selling the land to a person who refused to complete the purchase on discovering an incum- brance. " Smith v. Jefts. 44 N~. H. 482. Hasselbusch v. Mohmking, 76 N. J. L. .9-61 ; 73 Atl. 961. In Harwood v. Lee, (Iowa) 52 N". W. Rep. 521, the court refused to reverse a judgment merely for failure to give nominal damages for a breach of the covenant against incumbrances 67 Comings v. Little, 24 Pick. (Mass.) 266. "Egan v. Yeaman, (Tenn.) 46 S. W. Rep. 1012. * Bristor v. McBean, 37 N. Y. Supp. 18 ; 1 App. Div. 217. 70 Rawle Covts. for Title (5th ed.), 176, 189. Taylor v. Heitz, 87 Mo. 660. In Eaton v. Lyman, 30 Wis. 41, it was held that the plaintiff was entitled to nominal damages, though he had not removed the incumbrance, 342 MARKETABLE TITLE TO REAL ESTATE. inasmuch as an action upon the covenant will seldom be brought until the ineumbranco has been actually or constructively enforced, and the covenanter has sustained actual damages, in which case, as we have seen, the plaintiff will be entitled to substantial dam- ages. 130. Measure of damages where covenantee discharges incumbrance. The covenantee may, of course, pay off an incum- brance on the premises, and thereby become entitled to substantial damages for broach of the covenant, without waiting to be evicted, 71 provided the grantor has refused to remove the incum- brance after notification and request." But in such case he can recover as damages no more than the amount actually and fairly but the court declined to say whether a second action could be maintained and damages recovered if the incumbrance should be enforced and actual damages sustained. In Harsin v. Oman, 08 Wash. 281; 123 Pac. 1, it was held that the judgment for damages would not bar a suit after actual 'lam- .!- - had been sustained. n Hall v. Dean, 13 Johns. (X. Y.) 105. Rainey v. Hines, 121 N. C. 318; 28 S. K. Rep. 410. King v. Union Tr. Co., 133 N. Y. Stipp. 18; 148 App. Div. 110; Thompson v. Conran, (Mo. App.) 181 S. W. 505; Pee Dee Stores Co. v. Hamer, 02 S. C. 423; 75 S. E. 605. 71 Warren v. Stoddart, (Idaho) 50 Pae. Rep. 540. Greene v. Tallmnn, 20 X. Y. 101 ; 75 Am. Dec. 384. Here the incumbrance complained of was a species of quit rent due the city of Xew York. The court, by STRONG, J., said, that in order to avail himself of the discharge of the incumbrance the covenantee "would be bound to prove either that what had been paid by him was actually due, or that he had given notice to his vendor requiring that such vendor should pay off the ineumltrance within a limited time, or that, otherwise, the purchaser would pay a specified amount. Some of the authori- ties lay down the rule that the purchaser may set off or recover the amount paid, without any qualification, but it seems to us that a vendor who has been innocent of any fraud should have an opportunity to set himself right, before he should be obliged to pay, or allow more than the amount actually due. It is, I think, well settled that where the incumbrance has not been paid off by the purchaser of the land, and he has remained in quiet and peaceable possession of the premises, he cannot have relief against his con- tract to pay the purchase money, or any part of it, on the ground of defect of title. The reason is, that the incumbrance may not, if let alone, ever be asserted against the purchaser, as it may be paid off or satisfied in some other wny." The purchaser's damages include the amount expended by him in getting in an outstanding tax title; but he has the burden of showing the validity of the tax title. Dininny v. Brown, 133 X. Y. Supp. 314; 148 App. Div. 671. COVENANT AGAINST INCUMBEANCES. 343 paid to discharge the incumbrance, 73 together with compensation for his trouble and expenses incurred in that behalf. 74 He will be entitled to that amount as damages even though paid after the institution of his action on the covenant, 75 or before the incum- brance was due. 76 But, it seems, that in order to recover fees paid counsel in defending a suit to enforce the incumbrance, he must have given the covenantor notice to defend the suit. 77 The cove- 73 Washb. Real Prop. (4th ed.) 495; Sedg. Dam. 198; Rawle Covt. (5th ed.) 192; 4 Kent Com. (llth ed.) 563. Delavergne v. Norris, 7 Johns. (N. Y.) 358 ; 5 Am. Dec. 281 ; Braman v. Bingham, 26 N. Y. 483, 494. McGuckin v. Millbank, 31 N. Y. Supp. 1049; 83 Hun, 473. Hastings v. Hastings, 58 N. Y. Supp. 416; 27 Misc. 244. Seventy-third St. Bldg. Co. v. Jencks, 46 N. Y. Supp. 2; 9 App. Div. 314. Prescott v. Trueman, 4 Mass. 627; 3 Am. Dec. 249; Smith v. Carney, 127 Mass. 179; Coburn v. Litchfield, 132 Mass. 449. Richmond v. Ames, 164 Mass. 467; 41 N. E. Rep. 671. Davis v. Lyman, 6 Conn. 255, obiter. Cole v. Kimball, 52 Vt. 639; Downer v. Smith, 38 Vt. 464. Willson v. Willson, 5 Fost. (N. H.) 229; 57 Am. Dec. 320. Reed v. Pierce, 36 Me. 455; 58 Am. Dec. 761. Mayo, etc. v. Maxwell, (Ark.) 215 S. W. 678; Boice v. Coffeen, 158 Iowa 705; 138 N. W. 857; Helm v. Griffith, (Ala.) 82 So. 570. Anderson v. Knox, 20 Ala. 156. Amos v. Cosby, 74 Ga. 793. Schumann v. Knoebel, 27 111. 175 ; McDowell v. Milroy, 69 111. 498. Rinehart v. Rinehart, 91 Ind. 89. Edington v. Nix, 49 Mo. 134; Kellogg v. Malin, 62 Mo. 429; 11 Am. Rep. 426. Guthrie v. Russell, 46 Iowa, 269; 26 Am. Rep. 135. Pillsbury v. Mitchell, 5 Wis. 17. Pearson v. Ford, 1 Kan. App. 580; 42 Pac. Rep. 257. Dahle v. Stakke, 12 N. Dak. 325; 96 N. W. Rep. 353; even though the covenantor deceived him as to the existence of the incum- brance; Thomas v. Ellison, (Tex. Civ. App.) 116 S. W. 1141. Where the covenantee discharged a mortgage on the premises executed to secure a debt, and to indemnify the mortgagee against certain liabilities, but paid nothing on account of the liabilities in question, it was held that he was only entitled to recover, as damages, the amount he had actually paid out. Comings v. Little, 24 Pick. (Mass.) 266. The grantee cannot recover a sum paid by him to a mortgagor for release of his right to redeem after that right had become barred by the Statute of Limitations. McMichael v. Russell, 74 N". Y. Supp. 212; 68 App. Div. 104. "Willson v. Willson, 5 Fost. (N. H.) 229; 57 Am. Dec 320. Lost time, legal expenses and car fares incurred in removing from the record an appar- ent lien, which the covenantor had discharged, are not within a statute which provides that a grantee may recover for all damages sustained in removing an incumbrance on the premises, when there is a covenant against incum- brances. Bradshaw v. Crosby, (Mass.) 24 N". E. Rep. 47. "Brooks v. Moody, 20 Pick. (Mass.) 475. Kelly v. Lowe, 18 Me. 244. Mosely v. Hunter, 15 Mo. 322. 7 Snyder v. Lane, 10 Ind. 424. "Richmond v. Ames, 164 Mass. 467; 41 N. E. Rep. 671. 344 MARKETABLE TITLE TO REAL ESTATE. nantee is not necessarily entitled to recover as damages the whole sum paid by him to remove an incumbrance on the premises, even though such sum do not exceed the purchase price of the estate. He is entitled to recover only what he fairly and reason- ably paid for that purpose. 78 Of course, if it should appear that the incumbrance removed was the first lien on the premises, and could have been satisfied in full if enforced, and the covenantee had paid the full face value of the incumbrance, it is apprehended that such payment would be deemed fair and reasonable, for it is to be presumed that no creditor would part with a solvent security for less than its face value. But in any case in which it might appear that the incumbrance, either because a junior lien or because the premises had decreased in value, or for any other reason, was not worth the sum paid to remove it, the grantee must show that the sum so paid was the fair and reasonable value of the incumbrance. He will also have the burden of showing that the incumbrance was valid and enforcible against the premises. 80 If the covenantee buys in an incumbrance he must extinguish it by foreclosure or otherwise before he will be permitted to recover as for a breach of covenant against incumbrances. The reason is that if he were permitted to recover substantial damages with- out extinguishing the incumbrance he might be in a position to perpetrate a fraud ujxm the covenantor by transferring his notes secured by the incumbrance to innocent purchasers for value before maturity. 81 The covenantee paying to his grantee the amount of an incumbrance on the land must show, as against the covenantor, that the payment removed the incumbrance, or that his grantee took subject thereto. 82 The covenantee cannot recover a sum paid by him to extinguish n 2 Devlin on Deeds, 5 910. GiVbert v. Rushmer. 49 Kans. 632; 31 Par. Rep. 123. Anderson v. Knox, 20 Ala. 156. Guthrie v. Russell, 46 Iowa, 269: 26 Am. Rep. 125. W A in Gilbert v. Rushmer, 49 Kans. 632; 31 Pac. Rep. 123. * Robinson v. Bierce, 102 Tcnn. 428; 52 S. W. Rep. 992; 47 L. P. A. 275. Maitlen v. Maitlen, 44 Ind. App. 559; 89 X. K. 966; Globe Merc. Co. v. Perkey, (Ind. App.) 121 X. E. 844. "Ilarwood v. Lee, (Iowa) 52 X. W. Rep. 521. "Ostrow v. Lwer, 151 N. Y. Supp. 612, citing Delavergne v. Norris, 7 Johns. 358; 5 Am. Dec. 281. COVENANT AGAINST 1NCUMBEANCES. 345 an incumbrance on the premises if the right to enforce the incum- brance was barred by the statute of limitations at the time of the payment. 83 In Massachusetts, as has already been seen, if the covenantee be evicted by the enforcement of an incumbrance, but has a right to redeem the premises, the measure of his damages will be the amount he will be obliged to pay for the purpose of redemption. 84 This rule seems eminently fair and reasonable, since it prevents the covenantee from recovering the consideration money and interest from the covenantor, and then regaining the estate by redeeming it with a smaller sum. The earlier Massachusetts cases hold that in case of eviction under an incumbrance the measure of damages is the purchase money and interest, 85 and there are several decisions to the same effect in other States, 86 but it does not in them "appear that the covenantee had a* right to redeem, or that the limitation of his damages to the redemption money was demanded by the defendant. No duty, however, devolves upon the covenantee to discharge the incumbrance before it is enforced, 87 or to redeem the premises after enforcement, 88 and his failure to redeem, by reason of which the title of the purchaser under the incumbrance becomes absolute, will not affect his right to recover the consideration money and interest as damages. Nor will the measure of his damages be affected by the fact that he bought with notice of the incumbrance. 89 Evidence of the pur- poses for which the covenantee bought the premises, e. g., as a speculation, is inadmissible for the purpose of aggravating the v. Russell, 74 N. Y. Supp. 212; 68 App. Div. 104. 84 Ante, this section. The rule was so stated in an early edition of Mr. Rawle's Covenant for Title, but in the last edition of that valuable treatise (5th ed., 182) it has fallen a sacrifice to the author's theory that the cove- nantee cannot be deprived of his right to damages by the subsequent acquisi- tion of a perfected title to the estate. 85 Chapel v. Bull, 17 Mass. 213; Jenkins v. Hopkins, 8 Pick. (Mass.) 348. 89 Waldo v. Long, 7 Johns. (N". Y.) 173; Bennet v. Jenkins, 13 Johns. (N. Y.) 50. Stewart v. Drake, 4 Halst. (N. J.) 139. King v. Kerr, 5 Ohio, 155; 22 Am. Dec. 777. 87 Bank v. Clements, 16 Ind. 132. 88 Sanders v. Wagner, 32 N. J. Eq. 506. 8 Mohr v. Parmelee, 43 N. Y. S. C. 320. Snyder v. Lane, 10 Ind. 424; Med- ler v. Hiatt, 8 Ind. 171. 44 346 MARKETABLE TITLE TO REAL ESTATE. damages, 90 unless it can be shown that the intention with which the premises were bought was known to the other party and entered into the consideration of the sale.' 1 Except where the right of redemption exists, the measure of the covenantee's damages in case of eviction is the same, whether the action be for a breach of the covenant of warranty, or that against incumbrances. In neither case can the plaintiff recover for his improvements or the increased value of the estate. 92 131. Damages cannot exceed purchase money and interest. But while the covenantee is, as a general rule, entitled to recover as damages the amount paid by him to remove the incum- brance, it has been held that such recovery cannot exceed the purchase price of the land with interest. This limitation of the rule has been recognized in most of the States in which it has been considered. 93 In Missouri, however, it has been rejected. 94 "Batchelder v. Curtis, 3 Gush. (Mass.) 204; Greene v. Creighton, 7 R, I. 10. w Foster v. Foster, 62 N. H. 46. "Stewart v. Drake, 4 Halst. (N. J.) 139. *4 Kent Com. (llth ed.) 503; Rawle Covt. 193. Dimmick v. Lockwood, 10 Wend. (X. Y.) 142; Grant v. Tallman, 20 N. Y. 191; 75 Am. Dec. 384; Andrews v. Appel, 22 Hun (X. Y.). 429. Boyd v. Whitfleld, 19 Ark. 447; Collier v. Cowger, 52 Ark. 322; 12 S. W. Rep. 702. Kelsey v. Remer, 43 Conn. 129; 21 Am. Rep. 638. Foote v. Unmet, 10 Ohio, 333; 36 Am. Dec. 90; Xyce v. Obertz, 17 Ohio, 77; 49 Am. Dec. 444. Eaton v. Lyman, 30 Wis. 41. Willetts v. Burgess, 34 111. 494, obiter. He cannot recover the increased value of the land resulting from improvements made by him. King v. Union Tr. Co., 133 X. Y. Supp. 18; 148 App. Div. 110. Knadler v. Sharp, 41 Iowa, 332, has 'been supposed to depart from the rule limiting damages for breach of the covenant against incumbrances to the purchase money and interest. Rawle Covt. (5th ed.) 275. Guthrie v. Russell, 46 Iowa, 271; 26 Am. Dec. 135. It is by no means clear that such was the intention of the court. The opinion in the case, however, is somewhat obscure. On page 237 it is said that the grantees had a right to the benefit of their purchases and not simply to a return of their money and interest. And in the next sentence the apparently conflicting statement is made that any expenditure the grantee mipht be required to mnke in order to protect his title, not exceeding the purchase money and interest, he might properly mnke and demand its return from the grantor, etc. In Hawthorne v. City Bank, 34 Minn. 382; 26 X. W. 1 :. 4, it was held that a statute providing that the covenantor should, in case an incumbrance appeared of record to exist on the premises, be liable for all damage* incurred in removing the same, applied only to incumbrances appearing of record lut not exit ting in fact, ad was not intended to change the rule limiting the damage* for a breach of the covenant to the considera- tion money. Walker v. Dearer, 5 Mo. App. 139, where it was held that the covenantee COVENANT AGAINST INCUMBRANCES. 347 In Massachusetts it has been held that the recovery cannot exceed the value of the land at the time the incumbrance was removed, 95 and this, it is presumed, would be the rule in each of the New England States in which the covenantee is allowed as damages the value of the land at the time of eviction. The rule limiting the damages to the consideration money and interest, of course denies to the plaintiff any recovery for the value of improvements placed by him on the land. Incumbrances must appear of record in order to bind the property at the time of purchase, and if the plaintiff improved the estate without examining the title, the loss of the improvements is the result of his own negligence. 96 The payment of the incumbrance by the covenantee is a material, traversable fact, and in an action on the covenant should be set forth in the declaration or complaint, so that issue may be taken upon it. 97 If the consideration expressed in the deed be merely nominal, but the real consideration is some benefit to accrue to the grantor not easily susceptible of exact measurement in money, such, for example, as the increase in the value of adjoining property belonging to the grantor from the use to be made of the granted premises by the grantee, the measure of damages will be the amount actually paid by the grantee to protect himself against the incumbrance, not exceeding the then value of the premises. 98 132. Measure of damages where the incumbrance is per- manent. Where the incumbrance is permanent, or one that ihc covenantee cannot remove as a matter of right, 4 he will be entitled to a just compensation for the injury sustained, 99 the measure of is entitled to recover what he fairly and reasonably paid to remove the incumbrance, regardless of the consideration money and interest, and that the question of the fairness and reasonableness of the payment so made was for the jury. Dimmick v. Lockwood, supra, was expressly disapproved. See also, Henderson v. Henderson, 13 Mo. 151; St. Louis v. Bissell, 46 Mo. 157; Winningham v. Pennock, 36 Mo. App. 688. 95 Xorton v. Bafocock, 2 Met. (Mass.) 510. 94 Dimmick v. Lockwood, 10 Wend. (N. Y.) 142. 97 Pillsbury v. Mitchell, 5 Wis. 17, citing De Forest v. Leete, 16 Johns. (N. Y.) 122. Funk v. Voneida, 11 S. & R. (Pa.) 109; 14 Am. Dec. 617. Tufts v. Adams, 8 Pick. (Mass.) 549. 98 Utica C. & S. V. R. Co. v. Gates, 47 X. Y. Supp. 231 ; 21 Misc. 205, in which case the granted premises were to be used for railroad purposes. "3 Washb. Real Prop. (4th ed.) 495; Sedg. Dam. (6th ed.) 199; Rawle 348 MARKETABLE TITLE TO BEAL ESTATE. which will be, as a general rule, the difference between the present value of the premises and their fair market value without the in- Covt. 291. Prescott v. Trueman. 4 Mass. 630; 3 Am. Dec. 249; Harlow v. Thomas, 15 Pick. (Mass.) 69. Richmond v. Ames, 164 Mass. 467; 41 N. E. Rep. 671. Hubbard v. Norton, 10 Conn. 4oO: Mitchell v. Stanley, 44 Conn. 312. The incumbrance complained of in this case was a right to pass and repass on the premises for the purpose of cleaning a canal. The actual dam- age was found to be ten dollars, but that by reason of the easement the value of the land was diminished by $750. Judgment was rendered for $750. Mackey v. Harmon, 34 Minn. 168; 24 X. W. Rep. 702. The measure of dam- ages for a breach of the covenant against incumbrances resulting from a building restriction is the actual impairment of the value of the estate because of the incumbrance. Foster v. Foster, 62 N. H. 46. Where the incumbrance was the prior condemnation of a drainage ditch right of way through timber lands, the measure of damages was held to be the purchase price of the timber lost, with interest. Scott v. Tanner (Mo. App.) 208 S. W. 264. In Kellogg v. Malin, 62 Mo. 429; 11 Am. Rep. 426, the incum- brance complained of was a right of way through the warranted land. The court, after declaring that the grantee was entitled only to nominal dam- ages where he had not suffered any actual injury from the incumbrance, and that if he removed the incumbrance he was entitled to recover what he paid for that purpose, if reasonable, continued: "When, however, the incum- hrance has inflicted an actual injury upon the purchaser, the rule can only be generally stated to be that the damages are to be proportioned to the actual loss sustained. Thus, if the incumbrance be of a character which cannot be extinguished, such as an easement or servitude, an existing lease or the like, it is said that the damages are to be estimated by the jury according to the injury arising from its continuance. There is a good reason for the distinction. In case of an incumbrance by an ordinary lien or mortgage, the grantee may pay off the inrumbnince at any time and free the premises, or the person who made the lien or mortgage may extinsjui>h them, and the grantee may never be injured. But an easement or servitude is unextinguishable by any act of the parties, either grantor or grantee, and if its continuance is permanent the damages must be assessed accordingly." Whiteside v. Magruder, 75 Mo. App. 364. In Greene v. Creighton, 7 R. I. 10. it was held that the covenantor will not be liable for damages arising from the unfitness of the premises, by reason of the casement, for use in riiimeetinn with adjoining premises, for which use the covcnantee purchased the premises, the covenantor being ignorant of such intended use. Such damages are too remote. A party wall standing wholly on the warrnnt-'d land is an incumbrance for which the grantee is entitled to more tlmn nominal damage*. Mohr v. Parmelee, 43 X. Y. S. C. 320. In Ko^tenbader v. Pierce, 41 Iowa, 204, where the incumbrance consisted of a railroad right of way through the premises, it was held that the appreciation in value of the remainder of the land could not b* considered in estimating the damages to the < Mv.-nant.-r. A division to the contrary was m.idr in U'adhams v. Swan, 109 111. 46. An annuity charged upon the premises in favor of a widow is not a permanent incumbrance entitling the purchaser to damages for actual COVENANT AGAINST INCUMBRANCES. 349 cumbrance. 1 If the incumbrance consist of an unexpired lease of the premises, the whole purchase money cannot be recovered as damages. 2 In such a case it has been held that the annual value of the land, or the interest on the purchase money, is the proper rule of damages. 3 This, however, has been denied, and the better rule declared to be that the covenantee is entitled only to a just compensation for whatever injury he may have suffered, to be determined by the jury from all the circumstances of the case, for which purpose the annual value or annual interest on the purchase money may be taken into consideration. 4 If he has sustained no loss or injury on account of the incumbrance, he will be entitled to nominal damages only. 5 If the covenantee has been kept out of the estate by a life tenant, the measure of damages will be the value of the estate for the time that he has been deprived of its enjoyment. 6 injury to the estate. It is a pecuniary incumbrance, which will entitle him to damages only so far as he may have made payments thereon. Myers v. Brodbeck, 110 Pa. St. 198; 5 Ail. Rep. 662. *Sutton v. Baillie, 65 Law Times Rep. 528. Bronson v. Coffin, 108 Mass. 175; 11 Am. Rep. 335. Streeper v. Abelin, 59 Mo. App. 485. Smith v. White, 71 W. Va. 639; 78 S. E. 378; Helton v. Asher, 135 Ky. 751; 123 S. W. 285; Tuskegee Land Co. v. Realty Co., 5 Ala. App. 499; 59 So. 557. The real measure of damages is the amount of actual injury to the premises, and not such sum as the grantee might be required to pay to remove the easement. Smith v. Davis, (Kans.) 24 Pac. Rep. 428. 2 Rickert v. Snyder, 9 Wend. (N. Y.) 423. "Rickert v. Snyder, 9 Wend. (N. Y.) 423. Porter v. Bradley, 7 R. I. 542. Moreland v. Metz, 24 W. Va. 137; 49 Am. Rep. 246. Barker v. Denning, 91 Kan. 485; 138 Pac. 573; Malsbary v. Jacobus, 88 Neb. 751; 130 N. W. 524. In O'Connor v. Enos, 56 Wash. 448; 105 Pac. 1039, it was held that the measure of the covenantee's damages was the reasonable rental value of the premises during the time the possession was withheld. 4 Batchelder v. Sturgis, 3 Gush. (Mass.) 204, disapproving Rickert v. Snyder, supra. Brass v. Vandecar, (Nebr.) 96 N. W. Rep. 1035. The measure of damages is the rental value of the land for the unexpired term. Wragg v. Meade, 120 Iowa, 319; 94 N. W. Rep. 856. Estep v. Bailey, (Oreg.) 185 Pac. 227. In Hartman v. Stoll (Mich.) 171 N". W. 369, the damages were limited by the court to the amount paid by the covenantee to the tenant in consideration of his removal from the premises.. B Fishel v. Browning, 145 N. C. 71; 58 S. E. 759; Schwartz v. Black, 131 Tenn. 360; 174 S. W. 1146; L. R. A. Ann. 1915 D, 898; Ann. Gas. 1916 C, 1195, where the incumbrance complained of was a railway across the premises, which the court held to be a benefit, instead of injury, to the land. Christy v. Ogle, 33 III. 296. 350 MARKETABLE TITLE TO REAL ESTATE. The fair annual rent of the premises will, in the absence of evidence to the contrary, be taken to be that paid by the tenant in possession. 7 If the incunibrance consist oi a present outstanding life estate it has been held that the value of that estate, as gov- erned by the probable duration of the life of the tenant, is the measure of the plaintiff's damages, and that the jury may make use of approved tables of longevity in computing the damages. 8 It may be observed here that wherever, as in the case just men- tioned, the coverrantee is entitled to prospective as well as past damages for a breach of the covenant against incumbrances by which he is kept out of the estate, he must include, both in his recovery. He cannot take judgment for the value of the estate up to the time of verdict, and after the estate has expired main- tain another action to recover the value for the time intervening between the judgment in the first action and the expiration of the estate. There can be but one recovery for one breach of the cove- nant against incumbrances, and the judgment for the annual value of the estate accrued at that time would be a bar to any further action for the same breach. 9 Where the incunibrance complained of is an easement which has never been used, and from which the covenantee has suffered no real injury, it has been held that he can recover only nominal damages. 10 But the fact that an ease- ment or servitude was extinguished without expense to the plain- tiff before action brought, will not of necessity deprive him of the right to substantial damages. He may have been prevented from improving the estate, or may have been otherwise injured by the existence of the incunibrance. He is entitled to comjx^nsa- tion for whatever actual damage he may have suffered. 11 'Moreland v. Met*. 24 W. Va. 137; 4J> Am. Rep. 246. Mills v. Catlin. 22 Vt. 08. Rawle Covt. { ISO. Taylor v. Hertz, 87 Mo. 6flO. But a judgment foh nominal damagcK in an action for breach of the covenant against incum- brancea in no bar to an action on a covenant of warranty, contained in the Mine conveyance, brought after the incnmhrance was enforced and the plain- tiff evicted. Donnell v. Thompson, 1 Fairf. (Me.) 170; 25 Am. Dec. 210. " Ronenberger v. Keller. 33 Grat. (Va.) 403. Knign v. Colt, 75 Conn. Ill; 52 Atl. Rep. 820. Hunter v. Keightley, 184 Ky. 835; 213 S. \V. 201. an unopened railroad right of way. "Wetherbee v. Bennett, 2 Allen (Ma*.), 428. HOAR. ,T.. Having: "The incumbrnnce waff a right of way over the land, which mibuisted at the time of COVENANT AGAINST INCUMBRANCES. 351 If the easement affects the market value of the property, the covenantee is entitled to recover the difference between the value of the premises with and without the easement, though he has expended no money on account of the easement. 12 Where the incumbrance consists of a restriction of the uses to which the premises may be put, and the grantee is made defend- ant to a suit to enforce the restriction, he will be entitled to recover on the covenant against incumbrances the expenses of his defense, including fair and reasonable attorney's fees. He will be entitled to recover what his attorney's services were reasonably worth, but nothing in excess of the value of such services. 13 In a case in which the breach consisted of the existence of a restrictive covenant against the use of fire arms on the land, it was held that the covenantee was entitled to nominal damages only, in the absence of anything to show actual damages from the breach. 14 Damages to other lands of the covenantor not embraced in the deed containing the covenant, cannot be considered. 15 Notice to covenantor to defend. A judgment enforcing the incumbrance as against the covenantee is conclusive upon the the conveyance and for some time after. The defendant contended that the evidence showed that the plaintiff had never been disturbed in the enjoyment of his estate by any user of the way, and that the right of way had been extinguished without expense, and asked that the jury be instructed to return a verdict for nominal damages only, but the judge declined to give these instructions. It does not follow from these facts than no actual damage had been sustained. While the right of way lasted the plaintiff was precluded from using the part of the land covered by the way as fully as he might otherwise have done. He could not set a tree or a post or a building upon it. or sell or lease it to any person to whom such an incumbrance would be objectionable. It was an apparently permanent subtraction from the sub- stance of the estate." But see Herrick v. Moore, 19 Me. 313, where it was held that if a country road, being an incumbrance on the land, was discon- tinued without expense to the plaintiff before he brought his action, he could recover only nominal damages. "Herb v. Met. Hosp. & Disp., 80 N. Y. Supp. 552; 80 App. Div. 145. "Charman v. Tatum, 66 N. Y. Supp. 275; 54 App. Div. 61. If the incum- brance enhances the market value of the property but decreases its rental value for a particlar use, the covenantee can recover only nominal dam- ages. Tuskegee Land Co. v. Realty Co., (Ala.) 59 So. 557. 14 Fraser v. Bentel, 161 Cal. 390; 119 Pac. 509; Ann. Cas. 1913 B, 1062. "Smith v. White, 77 W. Va. 377; 87 S. E. 865. MAKKKTAHLK TIT1.K TO KKAL KSTATE. covenantor in a case in which he neglects a notice and request hy the covenantee to appear and defend the suit. 16 1^2a. Statute of Limitations. In some of the States it is held that inasmuch as the covenant against incumbrances is broken as soon as made if there is an iucumbrance upon the proj>- erty, the statute of limitations begins to run against an action ujxm the covenant from the time the deed was made. 17 I>ut in those States in which it is held that a covenant against incum- brances runs with the land, the statute of limitations does not begin to run until the covenantee has sustained actual damages from the breach. 18 133. PLEADING AND PROOF. In assigning a breach of the covenant against incumbrances, it is not sufficient merely to nega- tive the words of the covenant, alleging that the premises were not free from incumbrances, or that the defendant did not indemnify the plaintiff, and save him harmless from incumbrances; the plaintiff must go further and set forth the incumbrance which produces the breach ; 19 that is, he must describe the incumbrance, giving name, date, amount and other particulars of description, but, of course, without reciting the instrument in so many words. 20 It is necessary that the incumbrance be substantially described, in order that the court may determine whether it l)e in fact an incum- 'Post, $ 175. Ballon v. Clark, (Iowa) 171 X. W. 682, where it was held, however, that the covenantor was not concluded as to the amount of dam* ages awarded against the covenantee. "Guerin v. Smith, 62 Mich. 369; 38 N. W. 906. "Ante. I 114; Killilea v. Douglas, 133 Wis. 140; 113 X. W. 411; 126 Am. St. Rep. 938; 17 L. R. A. (X. S.) 1189; Hunt v. Marsh, 80 Mo. 390; Thompson v. Conran (Mo. App.) 181 S. W. 505; Maitlen v. Maitlen. 44 Ind. App. 559; 89 N. E. 966; Whitten v. Krick, 31 Ind. App. 577; 68 X. E. 694. "Marston v. Hobbs, 2 Mass. 433; 3 Am. Dec. 61; Bickford v. Page, 2 Mass. 455. French T. Slack, 89 Vt. 514; 96 Atl. 6. Mills v. Catlin, 22 Vt. 98. Shelton v. Pea**, 10 Mo. 473. If tho facts get out in the complaint constitute a breach of the covenant against incumb ranees as well an a breach of the covenant of warranty, the plaintiff is not, under the Code, practice, bound to elect upon which breach he will proceed. Bruna v. Schreiber, (Minn.) 61 N. W. Rep. 120. "Duval v. Craig, 2 Wh. (U. 8.) 45. Morgan v. Smith, 11 111. 200. It would be unsafe to et forth the incun&rance in turo verba, because if not accurately described, there would be a variance. In an action on a cove- nant against incumbrance* win re the breach alleged is an outstanding tax, a variance Itetwi-cn the description of the premises contained in the deed and COVENANT AGAIXST INCUMBRANCES. 353 brance. 21 It is not necessary to allege an eviction under the incum- brance. 22 If the declaration be upon a special or limited covenant, it will be fatally defective if it does not allege that the incum- brance complained of originated from, by, or under the grantor. 23 If the plaintiff has extinguished the incumbrance, he must aver that fact in the declaration ; 24 and the declaration will be bad on demurrer if he fails to allege that he has not been reimbursed by the grantor. 25 Under a statute permitting the plaintiff to amend his declaration if he does not change the form or ground of his action, he may add a. new count setting forth a new and distinct incumbrance. 26 The burden of proof will be on the plaintiff to establish the existence of the incumbrance, 27 and to show that it was a valid and subsisting lien at the time of the conveyance. 28 The plaintiff must produce in evidence the deed containing the covenant against incumbrances. If the deed be in existence, he cannot show by parol testimony that it contains such a covenant. 29 The remedy for a breach of a covenant against incumbrances is by action at law on the covenant, and not a suit in equity to com- pel the covenantor to satisfy and discharge the incumbrance. 30 that contained in the assessment roll is immaterial, provided the same land is adequately and particularly described in each, though by different words. Mitchell v. Pillsbury, 5 Wis. 410. 21 Vorhis v. Forsyth, 4 Biss. (C. C.) 409. 22 De Jarnette v. Dreyfus, 166 Ala. 138; 51 S. 932. 23 Mayo v. Babcock, 40 Me. 142. The incumbrance complained of here was taxes on the premises. The declaration did not allege that they were assessed while defendant was the owner of the property. "Ante, 131. Pillsbury v. Mitchell, 5 Wis. 22. De Forest v. Leets, 16 Johns. (N. Y.) 122. The reason of this rule is, that inasmuch as no actual damage necessarily results from a breach of the covenant against incum- brances, it must, if sustained, be specially laid to prevent surprise. 25 Kent v. Cantrell, 44 Ind. 452. 28 Spencer v. Howe, 26 Conn. 200. 27 Jerald v. Elly, 51 Iowa, 321; 1 X. W. Rep. 639. 28 Abb. Tr. Ev. 520. Kirkpatrick v. Pearce, 107 Ind. 520; 8 N. E. Rep. 573, citing Cook v. Fuson, 66 Ind. 521, and other Indiana cases; Rife v. Glass Co., 42 Ind. App. 346; 85 N". E. 726. 29 Patter son v. Yancey, 81 Mo. 379. The rule requiring the best evidence makes the production of the deed necessary. 30 Hastings v. Hastings, 58 N. Y. Supp. 671; 41 App. Div. 540. 45 CHAPTER XIV. COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. FORM. 134. CONSTRUCTION AND EFFECT. 135. QUALIFICATIONS AND RESTRICTIONS. 130. WHEN IMPLIED. 137. PARTIES BOUND AND BENEFITED. 138. Married women. 138-a. Heirs and devisees. Joint covenantors. 139. Personal representatives. 140. Municipal corporations. 140-a. Who may sue for breach of warranty. 141. WHAT CONSTITUTES BREACH. Tortious disturbances. 142. Eminent domain and acts of sovereignty. 14.'J. Actual eviction. Ueneral rule. 144. /,'ti/n/ by adverse claimant. Legal process. 145. Constructive eviction. Inability to grt possession. 146. Vacant and unoccupied lands. 147. Surrender of possession. 148. Hostile assertion of adverse claim. 149. Purchase of outstanding title. 150. Hostile assertion of adverse claim. 151. Loss of incorporeal rights. 152. COVENANT OF WARRANTY RUNS WITH THE LAND. General rule. 153. Assignee may sue in his own name. 154. Separate actions against original covenantor. 155. Release of covenant by immediate covenantee. 150. Quit claim passes benefit of covenant, jj 157. Immediate covenantee must have been damnified. 158. Remote assignee may sue original covenantor. S 159. Mortgagee entitled to benefit of covenant. $ 100. Original covenantor must have been actually seised. 101. Assignee not affected by equities between original parties. 8 102. Covenant extinguished by reconveyance to covenantor. 103. MEASURE OF DAMAOES. General rule, i 164. New England rule. $ 105. Amount to which assignee is entitled. $ 106. [354] COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 355 Consideration may be shown. 167. Where covenantee buys in paramount title. 168. Loss of term for years. 169. Eviction from part of the estate. 170. Improvements. 171. Interest on damages. 172. Costs. 173. Counsel fees and expenses. 174. NOTICE OF HOSTILE SUIT AND BEQUEST TO DEFEND. 175. PLEADING AND BURDEN OF PROOF. 176. CONVENANT FOR QUIET ENJOYMENT. 177. 134. GENERAL OBSERVATIONS. FORM OF THE COVENANT. The modern covenant of warranty is derived from the ancient common-law warranty, though it is neither in terms nor in effect the same. The latter was an agreement on the part of the feoffor or grantor to iiwest the feoffee or grantee with other lands of equal value in case he should be evicted- from the demised prem- ises. 1 It could be created only by deed 2 and by the use of the technical word warrant, the formula being, " I and my heirs will warrant." 3 It was a covenant real, that is, a covenant for the breach of which a personal action sounding in damages could not be maintained. The remedy was by "voucher to warranty," in which the feoffor was called upon to make good his covenant by rendering to the feoffee other lands equal in value to those lost ; or by writ of warrantia cliartce* in which the same relief was afforded and, it seems, a recompense in money in case the feoffor were unable to make restitution in kind. 5 With the disuse of real actions warranty fell into disuse in England, and has been there entirely superseded by personal covenants for title, for the breach of which a personal action of covenant sounding in dam- ages may be maintained. 6 And with the disuse of warranty these ancient remedies have also disappeared in that country. 'Co. Litt. 365a, Stout v. Jackson, 2 Rand. (Va.) 142. 2 Co. Litt. 386a. 3 Ego et hcrredes mei ^carrant^zabimus in perpetuum. Bac. Abr. Warranty M. Tabb v. Binford, 4 Leigh (Va.), 140 (150) ; 26 Am. Dec, 317. 4 Stout v. Jackson, 2 Rand. (Va.) 132. 5 Paxson v. Lefferts, 3 Rawle (Pa.), 68, n., citing Fitzh. Nat. Brev. 135 H.; Id. 315. 8 The covenant of warranty is not found among those enumerated by Sir Edward Sugden. See Sugd. Vend. (8th Am. ed.) ch. 14, 3. 356 MARKETABLE TITLE TO REAL ESTATE. The modern covenant of warranty is peculiar to the American States, being unemployed in England, 7 where its place is taken by the covenant for quiet enjoyment. Xo case, it is believed, can be found in the American reports in which the covenant of warranty has been treated as a covenant real and judgment entered directing the covenantor to yield other lands to the covenantee equal in value to those whereof he had been evicted ; nor any case in which a voucher to warranty or writ of warrantia cAor/rt^has been main- tained against the covenantor. These remedies have been deemed nnsnited to the character of our institutions by many decisions in the older States, which declare that the remedy of the covenantee in case of eviction is by personal action for breach of the covenant of warranty." 7 3 Washb. Real Prop. 466 (660); Rawle Covts. (5th ed.) oh. 8. Townsend v. Morris. 6 Cow. (X. Y.) 123, a leading case. Chapman v. Holmes, 5 Halst. (X. J. L,) 24. Stout v. Jackson. 2 Rand. (Va.) W2. See the erudite opinions of GKEEX and OOALTER, JJ.. in this case, in which the nature of the real actions of voucher and trarrantia chart. v. Jackson, (Tex. Civ. App.) 130 S. W. 6G2. "See Va. Code, 1887, S 2446. 17 Platt Covts. 28; Rawle Covts. (5th ed.) 8.22, notes, Johnson v. Hollens- worth, 48 Mich. 140. Cole v. Lee. 30 Me. 392; citing 4 Cruise, 447, 449. Lant v. Norris, 1 Burr, 290. Buller's X. P. 158, and Cro. James, 391. Trutt v. Spott, 87 Pa. St. 339. In Midgett v. Brooks, Ired. L. (N. C.) 145; 55 Am. Dec. 405, the following language in the habendum of a deed, "free and clear from me, my heirs, etc., and from all other persons whatsoever," was held sufficient as. a covenant for quiet enjoyment. The objection that a cove- nant of warranty is inoperative because the word "he" is omitted from the blank space in which it should have been written preceding the words " will forever defend," etc., is. frivolous and untenable. Peck v. Houghtaling, 38 Mich. 127. But we Bowne v. Wolcott, (N. Dak.) 48 N. W. Rep. 426. and Thayer v. Palmer, 86 111. 477. An agreement to make a general warranty deed is performed by a deed containing a recital that the grantor " will for- ever warrant and defend the title," etc. 4 Kent Com. 492; Athens v. Nale, 25 111. 198; Caldwoll v. Kirkpatrick, 6 Ala. 60; 41 Am. Dec. 36. Tin- fol- lowing language in a deed, "to have and to hold the said land unto tin- said grantee, his heirs and assigns forever as a good and indefeasible estate in fee nimple," does not amount to a covenant of warranty. Wheeler v. Wayne Co., (111.) 24 N. E. Rep. 625. COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 359 the covenant of non-claim. It is in substance a covenant by the grantor that neither he nor any one claiming under him will there; after lay any claim to the granted premises. It has been fre- quently held to be the same in effect as a covenant of special warranty. 18 135. CONSTRUCTION AND EFFECT. In a number of the States the covenant of warranty includes by virtue of statutory provision or judicial construction all the other covenants for title. 19 "Gee v. Moore, 14 Cal. 472; Kimball v. Semple, 25 Cal. 452; Morrison v. Wilson, 30 Cal. 348. Cole v. Lee, 30 Me. 392. Newcomib v. Presbrey, 8 Met. (Mass) 406; Miller v. Ejiving, 6 Cush. (Mass.) 34; Gibbs v. Thayer, 6 Gush. (Mass.) 33. 19 So in Iowa, Funk v. Creswell, 5 Iowa, 62 ; Van Wagner v. Van Nostrand, 19 Iowa, 422, and in South Carolina, Evans v. McLucas, 12 S. C. 56. Butte v. Riffe, 78 Ky. 353; Smith v. Jones, (Ky.) 31 -S. W. Rep. 475. Measer v. Oestrich, 52 Wis. 693, 10* X. W. Rep. 6. In Ohio a covenant of warranty is by statute made to include a covenant of seisin. But, if the deed contain a covenant of warranty and a covenant of seisin the covenantee cannot recover for a breach of the warranty without averring an eviction. Innes v. Agnew, 1 Ohio, 389. Mr. Rawle closes his discussion of what constitutes a breach of the covenant of warranty with the following observations, which will be found pertinent to the subject-matter of the text above: "In reviewing the numerous cases upon the subject of what constitutes an eviction within the covenant of warranty it seems proper to recur to the remark, which has else- where been made in the course of this treatise, that covenants for title should not and cannot be regulated in all cases by the artificial and technical rules which properly govern the law of real estate. Reference may be had, there- fore, not only to the intention of the parties as expressed in the conveyance which contains the covenants, but also to the local practice of conveyancing itself. In those parts of this country, if any such exist, where the refinements of English conveyancing prevail and the covenants for title are inserted with exactness and fulness, the omission of a covenant for seisin or against incum- brances would justify the inference that the terms of the contract did not give the purchaser the peculiar benefit which such covenant strictly confers; and the more exactly and particularly the covenants were expressed the. more rigid would be their construction. So far, however, from such being the practice of conveyancing in this country it is rarely, if ever, the case that covenants for title, which are inserted, are expressed otherwise than very briefly. So in some of the States long-settled usage has caused the omission of all the covenants for title except that of warranty, which, by common prac- tice at least, is looked upon as containing all that is necessary to assure the title to the purchaser. Where such has become the settled practice of a State it is suggested with great deference that technical rules based upon a differ- ent custom of conveyancing lose, to some extent, their application, and to say that ' the purchaser should have protected himself by other covenants ' is to apply a hard rule in States where those other covenants are never employed." Covenants for Title (5th ed.), 154. 360 MARKETABLE TITLE TO HEAL ESTATE. But in most of the States it is regarded only as a covenant against eviction by one claiming under a better title. It is not to be denied, however, that the popular notion of a covenant of war- ranty is that it is an ample protection against any imperfection in the grantor's title. But this covenant is not a warranty that the title is good. " It has been thought by country scriveners, and even by members of the profession, to contain the elements of all the rest ; but the terms of it are too specific to secure the grantee against every disturbance by those who may have a better title. It binds the grantor to defend the possession against every claim- ant of it by right, and it is consequently a covenant against eviction only." * The purchaser should require, as a matter of abundant caution, all of the six covenants for title, for there may be occa- sions when he would be entitled to relief under some one of these when he would not be entitled to relief under the covenant of warranty. 11 Indej)endently of custom or statutory provision, the covenant of warranty includes a covenant against incumbrances, in the sense that an eviction under an incumbrance is as much a breach of the covenant of warranty as if the covenantee had been evicted by one claiming under a superior title. In such a case the purchaser is as fully protected by the covenant of warranty as he would be by a covenant against incumbrances. 22 But it seems that an agreement to execute a conveyance with a covenant against incumbranccs would not be performed by executing a deed with general war- ranty. 23 A judgment for nominal damages for a breach of the cove- nant against incumbrances is no bar to a suit for breach of war- ranty after an eviction under the incumbrance. 24 The general rule, therefore, is, unless varied by statute or custom in particular local- ities, that the covenant of warranty does not include a covenant , C. J., in Dobbins v. Brown, 12 Pa. St. 79. Oliver v. Bush, 125 Ala. 534 ; 27 So. Rep. 023. "Aw in Wash. City Savings Bank v. Thornton, 83 Va. 157; 2 S. K. Ilrp. 103. "King v. Kcrr, 5 Ohio, 158; 22 Am. Dec. 777. PoHt, ft 365. "Botftwirk v. William*, 36 III. 65; 85 Am. Dec. 386. Sec, also, Findlay v. Toncray, 2 Rob. (Va.) 374, 379. "Donnell v. Thompon, 1 Kairf. (Me.) 170; 26 Am. Dec. 216; Smith v. Wahl, 88 N. J. L. 623, 97 Atl. 261. COVENANTS OF WAKBANTY AND FOB QUIET ENJOYMENT. 301 against incumbrances. 2 " The ancient common-law warranty extended only to a freehold estate, that is, an estate of an indeter- minate duration. The same rule has been recognized as applicable to the modern warranty. 26 Practically, however, it would seem unimportant, as a covenant for quiet enjoyment is always implied in a conveyance for years, the only estate less than freehold that is of any consequence. 27 The effect of a covenant of warranty as an estoppel is elsewhere considered in this work. 28 The covenant of warranty is intended as much for the protec- tion of the purchaser against known defects of title as against those which are latent and unknown. It is, therefore, no defense to an action on the covenant that the purchaser knew, at the time it was taken, that there was an adverse claim to the land, 29 or that 25 See ante, 119. "Co. Lift. 389a; Shep. Touch. 184; Mitchell v. Warner, 5 Conn. 497. "Post, "Implied Covenants," 137. 28 Post, 216. 29 Barlow v. Delaney, 40 Fed. Rep. 97. Ballard v. Burroughs, 51 Iowa, 81; 50 N. W. Rep. 74. Osburn v. Pritchard, 104 Ga. 195; 30 S. E. Rep. 656; Goodwin v. Maxwell, 106 Ga. 194; 32 S. E. Rep. 114; McCall v. Wilkes, 121 Ga. 722; 49 S. E. Rep. 722; Allen v. Taylor, 121 Ga. 841; 49 S. E. Rep. 799; Bailey v. Murphy, (Colo. App.) 74 Pac. Rep. 798; Batter ton v. Smith, 3 Kans. App. 419; 43 Pac. Rep. 275; Anthony v. Rockefeller, (Mo.) 74 S. W. Rep. 648. Rea v. Minkler, 5 Lans, (N. Y. ) 196, where the covenant was taken with knowledge that there was a .private right of way over the premises. Abernathy v. Boazman, 24 Ala. 189. In this case the grantor was himself already in possession under an adverse claimant. In Tallmadge v. Wallis, 25 Wend. (N. Y.) 115, the reason for the rule was thus explained by Chancellor WAL WORTH: "It is a well-known fact that land is frequently conveyed with general warranty, which is warranty against eviction only, when both parties to the sale perfectly understand that the title is doubtful, or that there is some outstanding contingent interest which may, perhaps, at a future period, be the means of evicting the purchaser; and to protect the purchaser, and enable him to recover against the vendor in case of eviction, the covenant of Warranty is inserted in the deed." Recent cases. Callanan v. Keenan, 224 N. Y. 303, 121 N. E. 376; New York, etc., Coal Co. v. Graham, 226 Pa. 348, 75 Atl. 657; Smith v. Ward, 66 W. Va. 190, 66 S. E. 234, 33 L. R. A. (N. S.) 1030; Joiner v. Trust Co., 33 Okl. 266, 124 Pac. 1073; Sanders v. 'Boynton, (S. C.) 98 S. E. 854 ; Mayer v. Wooten, 46 Tex. Civ. App. 327, 102 S. W. 423; Coleman v. Luetcke (Tex. Civ. App.) 164 S. W. 1117; Scott v. Tanner (Mo. App.) 208 S. W. 264. 46 362 MAKKETA11LE TITLE TO KEAL ESTATE. an easement in the land was being enjoyed by a third party. 80 But a covenant of warranty will not embrace incumbrances known to the grantor at the time of the purchase, and which he agreed to pay off as a part of the purchase money. Parol evidence will, in some of the States, be admitted to show such an agreement. 81 A mere sale and conveyance, however, with general warranty, sub- ject to a prior mortgage, will not of itself be construed as an agreement by the grantee to pay the mortgage as a part of the purchase money. 82 Want of consideration is no answer to an action for breach of the covenant of warranty. 88 A covenantee who has been evicted from the demised premises, and who has recovered damages for breach of the warranty, is not bound to reconvey the title ; if justice should require a recon- veyance, it should be enforced by making the collection of the judgment conditional upon a reconveyance. 84 It will be seen hereafter that the covenant of warranty does not amount to a covenant that the title is indefeasible, and that it is broken only by an eviction of the covenantee. Hence, it follows that the statute of limitations will not begin to run upon the covenant until an eviction has occurred, there being up to that time no cause of action on the covenant. 86 "Mahoney v. Simms, 148 X. Y. Supp. 1060, 80 Misc. Rep. 484. Tost, 181, 269; ante, $ 121. Allen v. Lee, 1 Ind. 58; 48 Am. Dee. .'r.2; Pittman v. Conner, 27 Ind. 237. In Ross v. Davis, 122 N. C. 265; 29 S. E. Rep. 338, it was held that one who took a deed with general warranty from a widow as life-tenant and her daughter as remainderman, with notice of the life-tenancy, and who was evicted after the expiration of the life-tenancy of the widow, could not recover on the warranty. In effect, the court held that her warranty extended only to her interest in the estate. In Menasha Wood- enware Co. v. Nelson, 53 Wash. 160, 101 Pac. 720, parol evidence was ad- mitted to show that the covenantee knew the condition of the title, and, as part of the consideration of the deed, undertook himself to remedy the de- fects. "Aufricht v. Xorthrup, 20 Iowa, 61. "Math.-r v. Coi-Iis*. In.-? Mass. 568, 571; Comstock v. Son, 154 Mass. 38fl; 28 X. E. Rep. 296. The covenantor is estopped to net up the defense that there was no consideration for the warranty, and that he r\<>< -nit-d the deed merely as a matter nf accommodation to others. Cornelius v. Kinnard, 157 Ky. 50, 102 S. \v. :,j. "Ives v. Nile*. 5 Watts (Pa.) 323. "Crisfleld v. Storr, 36 Md. 129; 11 Am. Rep. 480. Post, this ch., | 144. COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. As a consequence of the rule that all prior agreements of the parties respecting the title are merged in a conveyance with cove- nants for title, the grantor, when sued for a breach of the covenant of warranty, will not be permitted to show an agreement by the purchaser, prior to the conveyance, by which he was to share the expense of buying in an outstanding claim to a part of the prem- ises, if it should be asserted. 36 It is no defense to an action on the warranty that land to which the grantor had no title was, by mistake, included in the deed. 37 The United States, claiming under a defective scrip entry of public lands, is a " person," within the meaning of a warranty against all persons lawfully claiming the land. 38 Warranty does not extend to quantity. A covenant of war- ranty in a conveyance of lands by metes and bounds or within certain designated limits, and as containing a certain number of acres, is not broken if the lands described do not contain the number of acres mentioned. 39 The covenant of warranty does not 34 Post, 181; ante, 121. Beaseley v. Phillips, 10 Ind. App. 182; 50 N. E. Rep. 488. 37 Thompson v. Hill, 137 Ga. 308, 73 S. E. 640. M Giddings v. Holter, 19 Mont. 263; 48 Pac. Rep. 8. 39 Rawle Covts. (5th ed.) 297. Ricketts v. Dickens, 1 Murph. (N. C.) 343; 4 Am. Dec. 555; Powell v. Lyles, 1 Murph. (N. C.) 348, HALL, J., dis- senting; Huntley v. Waddill, 12 Ired. L. (N". C.) 32. Dickinson v. Voorhees, 7 W. & S. (Pa.) 357. Here there was a deficiency of 445 acres out of a tract of 3,235 acres conveyed with warranty. Allison v. Allison, 1 Yerg. (Tenn.) 16; Miller v. Bentley, 5 Sneed (Tenn.), 674. Daughtrey v. Knolle, 44 Tex. 455; Doyle v. Hord, 67 Tex. 621; 4 S. W. Rep. 241. Sine v. Fox, 33 W. Va. 521; 11 S. E. Rep. 218; Burbridge v. Sadler, 46 W. Va. 39; 32 S. E. Rep. 1028; Adams v. Baker, 50 W. Va. 249; 40 S. E. Rep. 356; Maxwell v. Wilson, 54 W. Va. 495; 46 S. E. Rep. 349; Gerhart v. Spalding, 1 N. Y. Supp. 486; Gunn v. Moore, 61 N. Y. Supp. 519; 46 App. Div. 358; Fitz- patrick v. Crowther, 100 Kan. 3-55, 164 Pac. 300; Mosteller v. Astin, 61 Tex. Civ. App. 455, 129 S. W. 1136; Hannis v. Scholz (Tex. Civ. App.) 120 S. W. 1056; Holland v. Ashley, (Tex. Civ. App.) 15S S. W. 1032; Brown v. Yoakum (Tex. Civ. App.) 170 S. W. 803; Nicholson v. Slaughter Co., (Tex. Civ. App.) 217 S. W. 716; Gulf Coal Co. v. Musgrove, 195 Ala. 219; 70 So. 179. A covenant that the grantor was seized of the land, described in the deed as containing fifty acres, refers to the quantity and quality of the grantor's estate in the land, and not to the quantity of the land, and therefore, is not broken if the tract contain less than fifty acres. Austin v. Richards, 7 Heisk. (Tenn.) 665. A covenant of warranty is not qualified by a phrase 364 MAKKETABLE TITLE TO HEAL ESTATE. extend to quantity. Such a case is obviously different from one in which the grantee is unable to get possession of, or is evicted from, a portion of the lands within the given bounds. 40 A deficiency in the acreage, when the sale was by the acre, is the result either of fraud by the vendor or mistake of the parties ; in either of which cases the purchaser has his remedy in equity." A breach of warranty can only be with respect to the precise lands conveyed by the deed, and parol evidence will be inad- missible to show that certain lands of which the plaintiff has been evicted were included in his purchase and should have been embraced in the deed. 42 And if a deed convey a lot with warranty such as "being the same land conveyed by A. to me;" such phrase is in- tended merely as an aid to identifying the land. Shaw v. Bisbee, 83 Me. 400; 22 Atl. Rep. 361. Where a conveyance is made by course and distance, and a covenant therein extends to the entire quantity of land, a further descrip- tion of the land in the deed as a tract which had passed to the grantor by cer- tain deeds will not restrain the warranty to the original bounds of the tract. Stcincr v. Baughman, 12 Pa. St. 106. If the purchaser gets all of the land covered by the description in his deed, it is no breach of the covenant of war- ranty that the deed does not embrace all the land within the boundaries pointed out by the grantor. Littleton v. Green, 130 Ga. 692, 61 S. E. 593. Compare the following cases: Davis v. Fair, (Tex. Civ. App.) 152 S. W. 218; Withers v. Crenshaw, (Tex. Civ. App.) 155 S. W. 1189; Moore v. Johnson, 87 Ala. 220; Henofer v. Realty Co. (N". C.) 101 S. E. 265. It seem* to have been assumed in Burton v. Cowles, 156 Ky. 435, 160 S. W. 782, that an action would lie to recover the purchase money paid, to the extent of the denVicii. v. as money paid under a mistake of fact. In Jeffords v. Driesbaeh, 168 Mo. App. f)77. 1 "'! S. W. 274, it was held that where property is conveyed as a numbered lot on a map or plat of an addition to a city, there is a breach of the covenant unless the grantee gets the full amount of land called for on the map or plat. Houston v. Cameron Co. (Tex. Civ. App.) 135 S. W. 699. 41 Broadway v. Buxton, 43 Conn. 282. Smith v. Fly, 24 Tex. 345; O'Con- iicll v. Duke, 29 Tex. 299. Bennett v. Latham, 18 Tex. Civ. App. 403; 45 S. \V. l!,-p. ?i::i: Stark v. Homuth, (Tex. Civ. App.) 45 S. W. Rep. 761; Barm-s v. J,ilitfiM.t, (Tex. Civ. App.) 62 S. W. Rep. r>f>4. "Tymason v. Bates, 14 Wend. (X. Y.) 671. K seems that this rule d...--; not apply in Texas. Where the grantor at the time of the Half, points out the boundaries of the -tract sold, as established by natural or artificial monu- ments, the warranty in hi* deed applies to the very land so pointed out by him, though the cull* in his deed to the eovenantee do not include a strip on one of the sides of the land as pointed out. Meade v. Jones, (Tex. Civ. App.) \V. Hep. .-510. Meade v. Itu..iie. ( Tex. Civ. App.) 3.'i & W. 483. King v. Bressie, (Tex. Civ. App.) 32 S. W. Rep. 729. And in Kentucky it has been COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 365 without reference to or description of the buildings thereon, the fact that a house on the lot projects over, and is situated partly on an adjoining lot, so that the grantee is obliged to buy the adjoining lot to save the house, does not amount to a breach of the covenant of warranty. 43 Nor, if the deed embraces all the land within the boundaries pointed out by the grantor to the grantee, is there a breach of the warranty if the description in the deed embraces other land in the possession of a third party to which the grantor had no title. 44 136.QUALIFICATIONS AND RESTRICTIONS OF THE COVE- NANT OF WARRANTY. The parties may, of course, so frame the covenant of warranty as to limit or restrict the liability of the covenantor. No difficulty arises where the only covenant in the conveyance is restricted and limited in express terms. But some- times, and this may well happen where printed forms of convey- ances are used and the blanks are filled by unskilled persons, a deed will be found to contain a general covenant, followed by a special covenant, or by language inconsistent with or restrictive of the general covenant. Under such circumstances the follow- ing rules have been formulated by Sir Edward Sugden for the construction of the instrument: 45 (1) An agreement in any part of a deed that the covenants shall be restrained to the acts of particular persons will be good, notwithstanding that the cove- nants themselves are general and unlimited. (2) General cove- nants will not be cut down unless the intention of the parties clearly appears. 46 (3) Where restrictive words are inserted in held that a material deficiency in the quantity of land conveyed, is a breach of the covenant of warranty. Patton v. Schneider, 23 Ky. L. Rep. 2190; 66 S. W. Rep. 1003. 48 Burke v. Nichols, 34 Barb. (N. Y.) 430; S. C., 2 Keyes (N. Y.), 670. "Morgan v. Godlbee, 146 Ga. 352, 91 S. E. 117. 43 2 Sugd. Vend. (14th ed.) 279 (605) ; Rawle Covts. (5th ed.) 289. 48 2 Sugd. Vend. (14th ed.) 605; Rawle Covts. (5th ed.) 295. Everts v. Brown, 1 D. Chip. (Vt.) 96; 1 Am. Dec. 699. Black v. Barton, 13 Tex. 82. Where a deed of bargain and sale, written on a printed blank, contained a proviso, following immediately after the covenants, that the premises should be kept for the manufacture of lumber, it was held that the proviso applied to the grant only, and not to the intervening covenants for title. Reed v. Hatch, 55 N. H. 336. 066 MARKETABLE TITLE TO REAL ESTATE. the first of several covenants having the same object, they will "be construed as extending to all the covenants, although they are distinct/ 7 (4) Where the first covenant is general, a subsequent limited covenant will not restrain the generality of the preced- ing covenant, unless an express intention to do so appear, or the covenants be inconsistent, or unless there appear something to connect the general covenant with the restrictive covenant, or unless there are words in the covenant itself amounting to a qualification. 48 As, on the one hand, a subsequent limited cove- nant does not restrain a preceding general covenant, so, on the other, a preceding covenant will not enlarge a subsequent limited covenant. (6) Where the covenants are of divers natures and concern different things, restrictive words added to one will not 41 Browning v. Wright, 2 Bos. & Pul. 13; Hoiwell v. Richards, 11 East, 633; Whallon v. Kauffman, 19 Johns. (N. Y.) 97. Davis v. Lyman, 6 Conn. 252. Duval v. Craig, 2 Wh. (U. .S.) 45. See, also, Xind v. Marshall, 1 Brod. & Bing. 319. Dickinson v. Hoomes, 8 Grat. (Va.) 353. Campbell v. Watkins, 105 Va. 824, 54 S. E. 989. A formal covenant of warranty will not be cut down by the use of doubtful expressions. Thus, where such a covenant was followed by the words " according to a mortgage this day assigned " to the grantee, the meaning of which, upon all the facts of the case, was left in doubt, the court held that they did not limit or control the preceding cove- nant. Cornish v. Capron, 136 N. Y. 232; 32 X. E. Rep. 773. Where the gran- tees covenanted that they would " warrant specially the- land hereby con- veyed," and further, in the same clause, " that they have the right to convey the said land to said grantees," it was held that the special warranty limited the operation of the covenant of right to convey. Allemong v. Gray, 92 Va. 216; 23 S. E. Rep. 298. "Sugd. Vend. (14th ed.) 606 (280); Rawle Covts. (5th ed.) 291. Rowe v. Heath, 23. Tex. 619. Sheets v. Joyner, (Ind.) 38 X. E. Rep. 830. Morri- son v. Morrison, 38 Iowa, 73. Peters v. Giubb, 21 Pa. St. 460. Atty.-Gen. v. Purmort, 5 Paige Ch. (X. Y.) 620. See, also, Cole v. Hawes, 2 Johns. Can. (N. Y.) 203. Cornell v. Jackson, 3 Cush. (Mass.) 506; Phelpe v. Derk.-r. 10 Mass. 267. Joiner v. Trust Co., 33 Okl. 266, 124 Pac. 1073; Bender v. Fromberger, 4 Dallas (Pa.), 440, where it was held that a special warnmu in a deed would not control- a preceding general warranty, if it appeared from the face of the deed that a general warranty was intended. A special cov- enant to warrant and defend the premises against the grantor's taxc*. and against the grantor's own acts, does not limit a prior general covenant impli. .1 from the words "convey and grant." Jackson v. Grun, 112 Ind. 341; 14 N. E. Rep. 89. The rule stated in the text has been held applicable to a case in which the general covenant was that implied from the operative words of conveyance "grant, bargain, and sell." Miller v. Bayles*, 194 Mo. 637, 92 S. \Y. 483; Wright v. Boram, 190 Mo. App. 336, 177 S. W. 324. COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. control the generality of the others, although they all relate to the same land. If the grantor intends to limit his liability for the title conveyed, he must either convey without warranty, or insert special cove- nants in the deed restricting his liability. He cannot defend an action for breach of warranty on the ground that he purchased from one with whose title he was unacquainted, and intended to convey to the plaintiff only such title as he thus acquired. 49 If the warranty be limited to a certain number, of acres and the covenantee remains in peaceable possession of that number, it is no breach of the warranty that a part of the tract conveyed is in the possession of an adverse claimant. 50 Where a deed conveys the grantor's right, title and interest, though it contains in general terms a covenant of general warranty, the covenant is regarded as restricted and limited to the estate conveyed, and not as warranting generally the title to the land described. The covenant of warranty is intended to defend only what is conveyed, and cannot enlarge the estate conveyed. 50a 'But if the conveyance be of the " right, title and interest " of the grantor in certain lands, and the grantor covenants specially to warrant and defend the premises against all lawful claims arising under himself, the covenant will be construed to refer to the lands described in the deed, and not to the right and title of the grantor. 51 If general covenants are entered into contrary to the 49 Chitwood v. Russell, 36 Mo. App. 245. 50 Folk v. Graham, 82 S. C. 66, 62 S. E. 1106, citing Morris v. Owens, 3 Strobh. (S. C.) Law 203 and Whalon v. Kauffman, 19 Johns. (N. Y.) 97. 6 aWashb. Real. Prop. 665; Rawle Covt. (5th ed.) 298; Wait's Act. & Def. 391. Blanchard v. Brooks, 12 Pick. (Mass.) 67; Allen v. Holton, 20 Pick. (Mass.) 463; Sweet v. Brown, 12 Met. (Mass.) 175; 45 Am. Dec. 243; Stockwell v. Couillard, 129 Mass. 231. Ballard v. Child, 46 Me. 153; Bates v. Foster, 59 Me. 158; 8 Am. Rep. 406; Blanchard v. Blanchard, 48 Me. 174; Kimball v. Semple, 25 Cal. 452; Adams v. Ross, 30 X. J. L. 510. McXear v. McComber, 18 Iowa, 14; Young v. Clippinger, 14 Kans. 148; White v. Brocaw, 14 Ohio St. 339; Lamb v. Wakefleld, 1 Sawy. (U. S.) 251; Hope v. Stone, 10 Minn. 141 (114); McDonough v. Martin, 88 Ga. 675, 16 S. E. 59, 18 L. R. A. 343; White v. Stewart & Co., 131 Ga. 460, 62 S. E. 590; Hull v. Hull, 35 W. Va. 155; 13 S. E. Rep. 49. "Loomis v. Bedel, 11 N. H. 74; Mills v. Catlin, 22 Vt. 106. Here the language of the deed was "All the land which I own by virtue of a deed dated * * * from Asa S. Mills, recorded * * * being all my right and title 368 MARKETABLE TITLE TO REAL ESTATE. intention of the parties, special, limited or restricted covenants having been agreed upon, a court of equity will correct the mis- take, and reform the instrument" The covenant of general warranty implied from the use of the words " grant, bargain, and sell," will be restricted by a recital of an express understanding that the grantors warrant only against the claims of themselves, their heirs, or those through whom they claimed. In such case the warranty will be treated as special, and not general. 53 If the deed, by the granting clause, expressly provides that the grant is subject to the rights of grantees under previous deeds, such provision applies to and limits the operation of full covenants of warranty by which it is followed. 54 136-a. Exception of incumbrance. It has been held that the exception of an incumbrance, in a covenant, against incum- brances, does not restrict the operation and effect of a subsequent covenant of warranty. 55 There is a conflict of authority upon the point, but the better opinion would seem to be that the exception extends to the covenant of warranty also, 56 in view of the rule that restrictive words inserted in the first of several covenants having the same object, will l>e construed to extend to all the covenants, though they are distinct ; " at least such would be the fair con- to the land comprising 50 acres off of the east end of lot No. 75 in said town * * * to have and to hold the above-granted and bargained premises," etc. To this were added all the covenants for title, and it was held that the thing granted was the land itself, and not merely such title to the land as the grantor had, and that he was liable for a breach of the covenants. Clement v. Bank, 61 Vt. 298; 17 All. Rep. 717. In Texas it is held that words con- veying all the grantor's " right, title, and interest" " to have and to hold the premises " followed by a general warranty, constitute a warranty deed. Garrett v. Christopher, 74 Ttx. 453: Bumpass v. Anderson, (Tex. Civ. App. ) 51 S. W. Rep. 1103; Kempner v. Lumber Co., (Tex. Civ. App.) 49 S. W. Rep. 412. M 2 fiugd. Vend. (14th ed.) 609 (285) ; Rawle Covta. (5th ed.) 296. "Miller v. Bayles, 101 Mo. App. 487; aff'd, 74 8. W. Rep. 648. "Koch v. HuHtis, 113 NVis. 604; 89 N. W. Rep. 688. * McLane v. Allison, (K;m. App.) 53 Par. Rep. 781, citing Bennett v. Keohn. 67 Wis. 154; 30 N. W. Rep. 112; Manuf'g Co. v. Zellner, 48 Minn. 408; 51 N. W. Rep. 379; Welbon v. Welbon, 109 Mich. 356, 67 N. W. Rep. 338; Smith v. Hogue (N. D.) 123 N. W. 827. "Jackson v. Hoffman, 9 Cow. (N. Y.) 271. '-'2 Sugd. Vend. (14th ed.) 279 (605). COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 369 1 struction of the exception where the purchaser expressly assumes the payment of the incumbrance. It is not reasonable to suppose that the parties having exempted the grantor from a liability by a provision to which their attention was specially directed, intended to reimpose that liability upon him by a subsequent war- ranty necessary for the protection of the grantee against other contingencies. 136-b. Merger of prior agreements in the covenant. The general rule is that all prior or contemporaneous agreements between the parties respecting the title are merged in the cove- nants for title; and parol evidence is inadmissible to show that particular claims or incumbrances were excluded by the parties from the operation of the covenant of warranty. 58 137. IMPLIED COVENANTS. At common law certain cove- nants were implied from the word " dedi" (I have given) in a feoffment, and from the word " demisi" (I have demised) in a lease, but no covenant was implied from the words of grant in conveyances operating under the statute of uses, such as a deed of bargain and sale, or a lease and release. 59 In the United States, the feoffment is no longer in use, its place being supplied by the deed of bargain and sale. Hence, much of the learning upon the subject of implied covenants for title is with us practically obsolete. The general rule, in the absence of any statutory pro- vision on the subject, is, that no warranty is implied in the con- veyance of real property, 60 and, especially, no warranty is implied from a mere recital in a deed. 61 In many of the States there are statutes which give to certain words of conveyance, such as " grant, bargain and sell," effect as covenants of warranty. 62 In others, "Post, 181, 269. 69 Rawle Covts. for Title (5th ed.), 282. 60 3 Washb. Real Prop. 447 ; Thompson v. Schenectady R. Co., 124 Fed. 274, 81 O'Sullivan v. Griffith, 153 Cal. 502, &5 Pac. 873. M So in Delaware (Rev. Stat. 1874, p. 500), Indiana (Rev. Stat. 1881, 2927), Wisconsin (Rev. Stat. 1878, 2208), and in Missouri; but the deed must purport to convey an indefeasible estate in fee simple. Wildemeyer v. Loebig, 222 Mo. 540, 121 S. W. 75. The statute does not apply where the deed contains a statement of claims against which the title is warranted. Doak v. Smith, 137 Ark. 509, 208 S. W. 795. No covenant of warranty is im- plied from the words " grant, bargain, and sell " in a quitclaim deed. Bald- 47 370 MARKETABLE TITLE TO HEAL ESTATE. implied covenants are expressly abolished, except, perhaps, in the case of leases." In others, where the common law remains unchanged by statute, it is apprehended that its rules in this regard are still law, but practically a dead letter by reason of the disuse of those conveyances from which the implication springs. 84 As to covenants implied by force of statute, it is deemed inex- pedient to enter into any discussion of their form and incidents, since they vary in the different States, and the decisions respect- ing them must be chiefly of mere local application. It is to be observed, however, that if a deed contains covenants for title in the usual form, they will supersede those implied under the statute from the words " grant, bargain and sell," or from other words of like import. 65 A covenant of general warranty will not be implied from the recitals of a deed, when the deed contains an express covenant of special warranty. 66 A covenant of war- ranty will not be implied from the word " grant," where a statute win v. Drew, (Tex. Civ. App.) 180 S. W. 614. And in the absence of a statu- tory provision, no covenants for title are implied from those words. Mackin- tosh v. Stewart, 181 Ala. 328, 61 So. 956. In a number of the other States there are statutes which give to the words "grant, bargain and sell" or the like, the effect of covenants for seisin and against incumbrances. Mich. How. Amend. Stat. 8 5656. Minn. Rev. St. 1881, p. 535. Oregon, Deady's Laws, p. 647. New York, 3 Rev. St. (5th ed.) p. 29, 160. "In North Cardlina it is held that there is no implied warranty in the sale of realty, and hence that the vendee of standing timber, without express war- ranty of title, could' not recover the purchase money on failure of the title. Zimmerman v. Lynch, 130 N. C. 61; 40 S. E. Rep. 841, citing Foy v. Hough- ton, 85 N. C. 168; Huntley v. Waddell, 34 X. C. 32. Neither is there any implied warranty of the title to mortgaged premises by the mortgagor on foreclosure sale. Barden v. Stickney, 130 N". C. 02; 40 S. E. Rep. 842. "Douglas v. Lewis, Ml U. S. 75; Weems v. McCaughan, 7 Sm. 4 M. (Miss.) 472; 45 Am. Dec. 314; Finley v. Steele, 23 111. 56; Rubens v. Hill, 213 111. 523, 72 N. E. 1127; Snider v. Van Petten, 180 111. App. 677; Cov- enanU implied by statute from operative words of conveyance are to be har- monized, if possible, with express covenants in the deed, and allowed to stand, unless it clearly appears that the express covenants were intended to limit or restrict those implied by statute. Polak v. MaUcn, 22 Idaho, 727, 118 Pac. 89. "Buckner v. Street, 15 Fed. Rep. 365. McDonough v. Martin, 88 Ga. 675; 16 S. E. Rep. 59, 18 L. R. A, 343} White v. Stewart, 131 Ga. 460, 62 S. E. 690. COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 371 gives that effect to the words "grant, bargain and sell/' 67 nor from the word " convey," when the words " grant, bargain and sell " are not employed, 68 nor from the words " warrant and defend " when the statutory form " fully warrant and defend " is not used. 69 The statutory covenants implied from the words " grant, bargain and sell," are as operative in a deed of trust to secure payment of a debt, as in an ordinary fee simple deed. 70 K"o covenant for title to realty can be implied from the opera- tive words of conveyance in a deed which purports to convey only personal property. 71 If a decree for specific performance operates, by its terms, as a conveyance, such conveyance will have the effect of a warranty deed. 72 Covenants implied in a lease. As to covenants implied at com- mon law, it is believed that but three of them are of any practical use in the States in which the common law is preserved, namely : (1) Those implied in the case of a lease. (2) Those implied in the case of an exchange. (3)- Those implied in the case of a partition. These are: (1) That the lessor has power to make the lease; and (2) That the lessee shall have quiet enjoyment of the premises. 73 The covenants will be implied wherever the rela- tion of landlord and tenant is created by the instrument in writ- ing, whether the word " demise " was or was not employed, 7 * and the covenant for quiet enjoyment will be implied, though the lease was by parol. 75 The covenant so implied will, of course, "Wheeler v. Wayne Co., 132 111. 599; 24 N. E. Rep. 625. See, also, Gee v. Phurr, 5 Ala. 586; Frink v. Darst, 14 111. 304; 58 Am. Dec. 575. Whitehill v. Gotwalt, 3 Pen. & W. (Pa.) 323. "Heflin v. Phillips, (Ala.) 11 So. Rep. 729. *Van Ness v. Royal Phosphate Co., 60 Fla. 284, 53 So. 381, 30 L. R. A. (X. S.) 833, Ann. Cas. 1912 C. 647. '"Cockrill v. Bane, 94 Mo. 444; Boyd v. Hazeltine, 110 Mo. 203; Blanchard v. Haseltine, 79 Mo. App. 248. 71 Falls City Lumber Co. v. Watkins, 53 Oreg. 212, 99 Pac. 884. 72 Paris v. Golden, 96 Kan. 668, 153 Pac. 528. "Mayor v. Ma'bie, 3 Kern, (N. Y.) 151; Avery v. Dougherty, 102 Ind. 443; 52 Am. Rep. 6SO. Hyman v. Boston Chair Mfg. Co., 58 N. Y. Super. Ct. 282 ; 11 N. Y. Supp. 52. 74 Bandy v. Cartright, 8 Exch. 913; Dexter v. Manley, 4 Cush. (Mass.) 14; Ross v. Dysart, 33 Pa. St. 453. "Bandy v. Cartright, 8 Exch. 913. 372 MARKETABLE TITLE TO KEAL ESTATE. be limited or restrained by any express covenant which the lease may contain. 76 So, also, by an express provision in the lease that nothing therein contained shall be construed to imply a covenant for quiet enjoyment. 77 If the estate out of which the lease was granted determines before the expiration of the lease, the implied covenant will be at an end. 78 A lease of the right to collect wharfage for a year is not a " conveyance of real estate," within the meaning of a statute forbidding the implication of covenants for title in such conveyances, and a covenant for quiet enjoyment will be implied in such a lease. 79 Covenants implied in an exchange. The common-law deed of exchange is rarely, if ever, used in modern times, the parties usu- ally executing separate conveyances, the one to the other. But wherever a common-law deed of exchange is executed and the word " exchange " is used as the word of conveyance, covenants for quiet enjoyment and further assurance are thereby implied, and also a condition that, in case of a failure of the title, the party injured may re-enter and be seised of his former estate in the property which he gave in exchange. 80 Covenants implied in partition. General covenants of warranty are implied in a partition between co-parceners at common law, but not in a partition between joint tenants and tenants in com- mon, the remedy in the latter case being by bill in equity against the co-tenant for contribution. 81 And though, in case of a deed of partition between co-parceners, covenants of warranty are implied wherever the common law remains unchanged, the exist- ence of such covenants is of little practical importance, owing to the more convenient remedy by bill in equity for contribution. 81 " Rawle CovtB. (5th ed.) 27$. "Maeder v. Caromlelet, 26 Mo. 114. "Adams v. Oibney, 6 Binr. ftS6; Mayor v. Baggatt, 01 Miss. 383; Me- Lowry v. Croghan, I Grant's Cns. (Pa.) 307, 311. "Mayor v. Mabie, 3 Korn. (N. Y.I 151. *Co. Litt. 51b. 384; Rawle Covts. (5th ed.) | 270; Gamble v. MoClure, 60 Pa. St. 282, obiter, the parties having executed separate deeds of bargain and sale. M Rawle Covta. (5th ed.) f| 277, 278. "Walker v. Hall, 15 Ohio St. 355; 86 Am. Dec. 482; Sawyers v. Cator, 8 Humph. (Tenn.) 256; 47 Am. Dec. 608. COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 373 Covenants implied from recitals in a deed. No covenants are implied from the mere recitals of a deed, such as that the prem- ises contain a specified number of acres, though in some instances such recitals estop the grantor from asserting an after-acquired claim, or denying the existence of the facts recited. 83 138. PARTIES BOUND AND BENEFITED. T O action can be maintained for breach of warranty of title against a person not a party to the covenant of warranty. In a case in which the vendor had' only the equitable title, and the purchaser accepted a conveyance with warranty from a third person in whom was the legal title, without requiring the vendor to join in such con- veyance, it was held that he could not maintain an action against the vendor for breach of warranty on eviction by a mortgagee. 84 It is no defense to the covenantor that he held the property merely as security for a debt. 85 ]STo action can be maintained for a breach of the warranty except by the person holding under the warranty at the time of the eviction, actual or constructive, or by the legal representative of that person. 86 This rule, however, does not prevent an action by a warrantor against his warrantors for reimbursement of what he has been compelled to pay to his warrantee by reason of the breach. 87 138-a. Married women. At common law a married woman was not bound by her covenant of warranty, except by way of rebutter or estoppel. This rule has been affirmed in some of the American States by statute, while in others, under statutes giving her the power to contract with reference to her separate estate as if she were sole, she has been held liable upon her covenants for title, and in still other States there are statutes which pro- vide in terms that she shall be so liable. Independent of statute, it is held in some of the States that the separate estate of a married woman may in equity be subjected to the satisfaction of 8S Whitehall v. Gottwalt, 3 Pen. & W. (Pa.) 327. Ferguson v. Dent, 8 Mo. 673; Rawle Covts. (5th ed.) 280, 297. "Bowling v. Benge, (Ky.) 55 S. W. Rep. 422. 85 Delco Holding Co. v. Rosenthal, 164 N. Y. Supp. 785. 89 Alvord v. Waggoner, 88 Tex. 615, 32 S. W. 872 ; Hollingsworth v. Mexia, 14 Tex. Civ. App. 363, 37 S. W. 455; Penny v. Woody (Tex. Civ. App.) 147 S. W. 872. 87 Penny v. Woody (Tex. Civ. App.) 147 S. W. 872. 374 MAKKETAULE TITLE TO Kl.AI. ESTATE. her covenants for title, while in others such relief is denied the covenantee. 88 In a State in which she is bound by her covenants, it has been held that parol evidence is not admissible to show that she joined in the deed merely for the purpose of barring her inchoate marital estate in the land conveyed. 89 It has been held that a widow who joined in a deed merely for the purpose of releasing her dower interest, was not bound by the warranty of title implied from the oj>erative words of con- veyance " grant, bargain, and sell." 90 139. Heirs and devisees. It was necessary at common "law that an heir 1x3 expressly named in the covenant of the ancestor in order that he might be held liable for the breach. 91 In America, however, by virtue of generally prevalent statutory provisions, which make the real and personal estate of a decedent assets for the payment of his debts, and charge the heir therewith to the extent of assets received by him from the estate of the ancestor, 91 "The subject of a married woman's liability upon her covenants for title is too extensive to admit of consideration in the limited space that can be devoted to it in this work. The student is referred to Mr. Rawle's excellent work on Covenants for Title (Ch. 13), and to the various treatises on tin- contract liabilities of married women for the cases and authorities upon that ubject. In Minnesota, under a statute allowing a married woman to con- tract in reference to 'her separate estate as if she were a /one sole, it has been held that she is bound by her covenants for title. Sandwich Manfg. Co. v. Zellmer, 48 Minn. 408; 51 N. W. Rep. 379; Security Bank v. Holmes, 68 Minn. 538; 71 X. W. Rep. 699. But a married woman signing a deed merely to release her inchoate dower right will not be liable upon a covenant of warranty contained in the deed. Scmple v. Wharton, 68 Wis. 626; 32 X. \V. Rep. 690. Pyle v. Gross, 92 Md. 132; 48 Atl. Rep. 713; Webb v. Holt, 113 Mich. 338; 71 X. W. Rep. 637. "Security Bank v. Holmes, 68 Minn. 538; 71 N. W. Rep. 699. " Waldemeyer v. Loebig, 222 Mo. 540, 121 S. W. 75. M Co. Litt. 209a. "See the statutes of the several States. Whit ten v. Krick, 31 Ind. App. 577; 68 X. E. Rep. 694. An heir or dcvi.-cc i* liable on the covenants of llic -tator to the extent of thr -INM-SIUM! as well as the real e>i:il<> which has come to 4iis hands. Ross v. i'erry, 49 X. H. 540. Where a breach of covenant has occurred after the death of the covenantor, and his <- ha* been fully administered, the covenantee will not be driven to a new ad- ministration and suit against the administrator . .. but may sue the In-irs direct, and have judgment against them to the extent of assets received !>y them from their ancestor. Walker v. Deaver, 70 Mo. 664. If an heir apparent convey with warranty and then dies before the ancestor, the, heirs COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 375 he is, under such circumstances, liable for the breach of his ancestor's covenants for title, whether he was or was not specially named in the covenant. In some of the States, however, he cannot be held liable until the personal estate has been exhausted. 93 At common law covenant might be maintained against the heir upon the warranty of the ancestor, and such, it is apprehended, is the law to-day in most of the American States. The enforcement of such a liability, however, is peculiarly appropriate to courts of equity which are charged with the administration of the estates of decedents and equipped with all the machinery, such as account and discovery, needed to ascertain the quantum of assets descended to the heir, the want of other assets applicable to the satisfaction of the breach of covenant, and other matters necessary for the determination of the precise sum in which the heir is liable. In some of the States there are statutes which provide that an heir shall be liable only in equity for the debt of his ancestor, and under such a statute it has been held that covenant could not be maintained against an heir on the warranty of the ancestor. 94 A judgment against the heir in a State in which there are no assets descended to him will not bar an action against him in another State where such assets are found. 95 Where a father, having an interest only by way of contingent remainder, conveyed the fee with general warranty, under the impression that his estate vested, and afterwards his estate was determined by the happening of the contingency, his children, who took the estate under a limitation over, were held not bound by his warranty, because they were in by purchase and not by descent. 96 of such heir apparent will not 'be 'bound by the warranty, since they take, not as his heirs, but as heirs of his ancestor. Habig v. Dodge, 127 Ind. 31 ; 25 N. E. Rep. 182. Where the grantor conveys with special warranty his heirs or devisees can, of course, be held liable only for his acts, and not for claims to which the covenant did not extend. Gittings v. Worthington, 67 Md. 139; 9 Atl. Rep. 22S. 93 Royce v. Burrell, 12 Mass. 399. See, also, cases cited Rawle Covts. for Title (oth ed.), p. 520, note 3. 94 Rex v. Creel, 22 W. Va. 373. ""Seall v. Taylor, 2 Grat. (Va.) 532; 44 Am. Dec. 398. "Whitesides v. Cooper, 115 N. C. 570; 20 S. E. Rep. 295. 376 MARKETABLE TITLE TO REAL ESTATE. No action can be maintained at common law against a devisee upon the covenant of his testator. This rule, having been found to encourage fraudulent devises, was altered by the statute 3 and 4 W. & M. c. 14, 3, which gives the covenantee an action on the covenant against the devisee, provided, according to judicial construction, the breach occurred in the testator's lifetime. And by subsequent statutes the action was extended so as to embrace breaches occurring after the testator's death. 97 These statutes, or others of similar import, are in force, it is apprehended, in all of the American States. Joint covenantors Bankrupts. If a covenant of warranty be executed by two or more persons jointly, it will be presumed that their liability is joint, that is, that both are fully liable for the breach," 8 and words of severance will be required to render one liable only for his own acts." A covenant by A. and B. that " they will warrant generally the land," etc., is a joint and several covenant, and both will be liable for* the full amount of the dam- ages in case of eviction. 1 The general rule is that if two or more persons join in a conveyance with warranty all are bound as joint warrantors, although some of them received no part of the consideration and joined in the deed as a matter of convenience. 2 The mere signing, however, of a deed by a party not named therein, does not make him a warrantor of the title. 1 If two per- sons convey each an undivided moiety of certain premises, and * Rawle Covts. (5th ed.) eh. 13. If it he uncertain whether a person is bound on a covenant of warranty as devisee or aa a personal representative. it is error to enter up judgment against him in both capacities. John- \. Hard in, (Tex.) 16 8. W. Rep. 623. "Platt on Covts. 117; Rawle on CovK (.>th ed.) 8 304; 1 \Vrn-. Saun.lcr-. 154, n. Donohue v. Emery, 9 Met. (Mass.) 67: Comings v. Little. 24 Pick. (Maiw.) 266. But see Redding v. Lamb, 81 Mich. 318; 45 N. \V. Kep. !>47. *As in Evans v. Saundera, 10 B. Mon. (Ky.) 291. when- the < .>m. vancr \vas I iy four heirs, and each covenanted for his separate and undivided share separately to defend. See, aho. Fields v. Squires, 1 Dcady (C. C.), 36(5; Bardell v. Trustees, 4 Bradw. (111.) 04. 'Click v. Green, 77 Va. 827; Donohue v. Emery, 9 Met. (Mass.) 67; I'latt on Covts. part 1, eh. 3. f 2. AhWiurn v. Watson, 8 fia. App. 566. 70 S. E. 19. Tilghman Lumber Co. v. Matheaon. 8H 8. C. 432. 70 S. E. 1033, a ease in \\lii.-h a mortgagee, on receiving payment of his debt, signed the deed with the mortgagor. COVENANTS OF WARRANTY AND FOB QUIET ENJOYMENT. 377 one of them enters into limited or restricted covenants, and the other covenants generally, the latter, in case of an eviction under a title not embraced by the limited covenants, can be held liable only to the extent of his interest in the premises, that is, the undivided moiety, or one-half of the damages resulting from the breach. 4 A discharge in bankruptcy will, of course, relieve the bankrupt from liability for a breach of a covenant of warranty occurring before the discharge. But the bankrupt is not relieved where the breach occurs after the discharge. 5 140. Personal representatives. Fiduciaries. Agents. Cestui que trust. We have seen that warranty was a covenant real at common law, one consequence of which was that a personal action of covenant could not be maintained, in case of a breach, either against the covenantor or his personal representative. Real actions having been long since abandoned both in England and America, covenant may be maintained against the personal representative of the covenantor, whether named in the covenant or not, and whether the breach occurred before or after the death of the testator or intestate. 6 We have also seen that if fiduciaries choose to insert general or unlimited covenants in any conveyance they may make, they will be held personally liable thereon. 7 In one of the States, at least, a trustee, empowered to convey with war- ranty, has the right to insert in his conveyance covenants binding the original grantor, and upon a breach of those covenants such grantor, the creator of the trust, will be held liable in damages. 8 A cestui que trust cannot be sued upon the covenants of the trustee. 9 A grantor who held the legal title merely for the purpose of 4 Sutton v. Bailey, 65 Law Times Rep. 528. 'Bush v. Cooper, 18 How. (U. S.) 82; Waggle v. Worthy, 74 Cal. 266; 15 Pac. Rep. 831; Wight v. Gottschalk (Term.), 48 S. W. Rep. 140; 43 L. R. A. 189. There has been some diversity of opinion upon this point. See Rawle Covts. (5th ed.) 303. Townsend v. Morris, 6 Cow. (N. Y.) 123; Tabb v. Binford, 4 Leigh (Va.), 132; 26 Am. Dec. 317; Rawle Covts. (5th ed.) ch. 13. 'Ante, 69. 8 Thurmond v. Brownson, 69 Tex. 597; 6 S. W. Rep. 778. "Haran v. Stratton, 120 Ala. 145; 23 So. Rep. 81. 48 378 MARKETABLE TITLE TO BEAL ESTATE. conveying according to the direction of other persons, and who did not receive the consideration recited in the deed, is not liable for a breach of the covenants of title therein contained. 1 * But where the vendor conveyed with warranty to a third person, at the request of and pursuant to an agreement with the vendee, it was held that he was liable on his covenant to the grantee." In a case in which real property was conveyed, to the agent of a corporation, with covenants of general warranty and of seisin, the grantor having knowledge that the purchase was made for the corporation, and that the purchase money was paid by it, the prop- erty being afterwards conveyed by the agent to the corporation, it was held that the corporation was entitled to the benefit of the covenants. 11 In a case in Texas, it appeared that an agent bought land and conveyed it with warranty in his own name to one who was ignor- ant of the agency. It also appeared that the agent was not author- ized to convey the land and warrant the title. Nevertheless it was held that the principal, by collecting the purchase-money notes, ratified the transaction, and thereby became liable on the warranty in the agent's deed. 13 140-a. Municipal corporations. It has been held in one of the States, upon principles applicable everywhere, that, in the absence of statutory authority, a municipal corporation has no j)ower to execute a deed with covenants of warranty, such power not being essential to the purposes and objects of the corporation ; and hence, that the grantee in a deed of swamp lands executed by a county with covenants of warranty, could not recover against the county on failure of the title. 14 141. Who may sue for breach of warranty. For a breach of the covenant of warranty occurring in the lifetime of the cove- nantee, his personal representative alone can sue. The right to recover damages for the broach is a chose in action, which passes, M Deaver T. Deaver, 137 N. C. 240; 49 S. E. Rep. 113. "Hunt v. Huy, 214 N. Y. 578, 108 N. E. 851. nt. Appalachian Co. v. Buchanan, 90 Fed. Rep. 454. "Rutherford v. Montgomery, 14 Tex. Civ. App. 319; 37 8. W. Rep. 625. See also, Kfta v. Swanaon, 115 Minn. 373, 132 N. W. 335. "Harrison v. Palo Alto Co., 104 Iowa, 383; 73 N. W. Rep. 872. COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 379 like other personal assets, to the executor or administrator. 15 But if the breach occur after the death of the covenantee, the right of action accrues to the heir, devisee, or assignee, according to whether the premises have passed into the hands of the one or the other. 16 An assignee of the covenantee may, of course, sue for a breach of the covenant of warranty where he himself is evicted, or where he has been held liable upon his own warranty of the same premises to a subsequent grantee. 17 The covenant of war- ranty, in form, undertakes to warrant and defend the grantee, " his heirs and assigns," against the claims of all persons, etc., but it is not necessary that either the heirs 18 or assigns 19 be mentioned in order to give them the benefit of the covenant. The right of a subsequent grantee of the premises to sue upon the covenant of a remote grantor is hereafter considered in this chap-* ter. Tenants in common, holding under the same deed as grantees, have several freeholds, and may sue separately for breach of the covenant of warranty. 20 A tenant in dower, who is evicted, cannot maintain an action on a warranty in the conveyance to her hus- band. The right of action passes to the husband's representa- tives, and her remedy is by a new assignment of dower. 21 142. WHAT CONSTITUTES BREACH. Tortious disturbance or eviction. Collusion. The covenant of warranty is broken by an eviction only, and the covenant for quiet enjoyment by an eviction, or by a substantial disturbance of the covenantee in the enjoyment of the estate, though such disturbance does not amount to an evic- tion. 22 In either case, the breach must result from the acts of on "Grist v. Hodges, 3 Dev. L. (N. C.) 201; Wilson v. Peele, 78 Ind. 384. 14 Pence v. Duval, 9 B. Mon. (Ky.) 48. "See post, 153, 160. 18 2 Sugd. Vend. 577. Lougher v. Williams, 2 Lev. 92. 19 2 Sugd. Vend. 577, and cases cited; Platt Covt. 523; 3 Law Lib. 234. Redwine v. Brown, 10 Ga. 318; Leary v. Durham, 4 Ga. 603. See Colby v. Osgood, 29 Barb. (X. Y.) 339. The contrary has been held in North Carolina, Smith v. Ingram, 130 N. C. 100: 40 S. E. Rep. 984. 20 Lamb v. Danforth, 59 Me. 322 ; 8 Am. Rep. 426. 21 St. Clair v. Williams, 7 Ohio, 396. 22 Kent Com. 558 (473), et seq.; 3 Washb. Real Prop. ch. 5, 5; Rawle Covt. for Title (5th ed.), ch. 8. Durbin v. Shenners, 133 Wis. 134, 113 N. W. 421. If the grantee with covenant for quiet enjoyment be let into possession, the covenant is not broken merely because the grantor turns out to have had 380 MARKETABLE TITLE TO REAL ESTATE. having a better title to the premises than the covenantor. An unsuccessful attack upon his title by a third person or an evic- tion or disturbance of the possession by a trespasser, a mere wrongdoer, or a person having a defeasible claim to the prem- ises, does not amount to a breach of either covenant. In other words, as has been frequently said, the covenant of warranty and the covenant for quiet enjoyment are not broken by a tortious dis- turbance or eviction. 24 Xcithor are they broken by a collusive eviction; 26 as where only a life estate instead of a fee. Wilder v. Ireland, 8 Jones L. (N. C.) 88. But if the life estate fall in and the covenantee be evicted, the covenant for quiet enjoyment is of course broken. Parker v. Richardson, 8 Jones L. (N. C.) 452. . * Burke v. Timber Co., 224 Fed. 591 ; Stearns v. Jewel, 27 Colo. App. 390, 149 Pac. 386. *2 Sugd. Vend. (8th Am. ed.) 271 (600) ; Washb. Real Prop. 427; Rawle Covts. (5th ed.) $ 127; Taylor Landlord & Tenant, g 304, et srq. Wotton v. Hele, 2 Saund. 177, leading case; Howell v. Richards, 11 East, 633, 642. dictum; Hayes v. Bickerstaff, Vaugh, 118; Andrus v. Smelting Co., 130 U. S. 643. Hoppes v. Cheek, 21 Ark. 585; Playter v. Cunningham, 21 Cal. 232; Branger v. Manciet, 30 Cal. 624: Davis v. Smith, 5 Ga. 274; 47 Am. Dec. 279; Kimball v. Grand Lodge, 131 Mass. 59; Folliard v. Wallace, 2 Johns. (X. Y.) 395; Beddoe v. Wadsworth, 21 Wend. (N". Y.) 120; Kelly v. Dutch ( hiin-h. 2 Hill (N. Y.), 105; Spear v. Allison, 20 Pa. St. 200; Schuylkill &, Dauphin R. Co. v. Schmoele, 57 Pa. St. 275. Underwood v. Birchard, 47 Vt. 305; Mackintosh v. Stewart, 181 Ala. 328, 61 So. 956; Fishel v. Browning, I .'. N". C. 71, 5* S. K. 759; Morgan v. Davis, 78 W. Va. 270, 88 S. E. 847: Smith v. Moon-. 31 Ky. L. R. 838, 104 S. W. 265; Pierce v. Coryn, 126 111. App. 244. The covenantee cannot recover in an action for breach of warranty the value of timber wrongfully taken from tin- land by one having no valid claim to the land. Mclnnis v. Lyman, 62 Wig. 191. Compare Thomas v. \\Y-t. etc.. Inc., 04 Wash. 344; 116 Pac. 1074, where held, disapproving Lamh v. Willis, 1(19 X. Y. Supp. 75; 125 App. Div. 183, that it is no defense to the covenantor that the holder of a timber right in the land was, by reason of his failure to record the conveyance of that right to him, a trespasser in taking the timber. An illegal tax sale and redemption therefrom constitutes no breach of the covenant against incumbrances, nor, it is apprehended, of the covenant of warranty. Cummings v. Holt, 56 Vt. 384. Evidence that certain persons are in possession of the warranted premises, claiming under a grantee of one who purchased at a sheriff's sale under judgment against the covenantor without showing a conveyance from such grantee is insufficient evidence of an eviction under paramount title, since, for might that appears to the contrary, those in possession may be mere trespassers. Jenkins v. II -pkins. 8 Pick. (Mass.) 346. Davis v. Smith, 5 Ga. 247 ; 48 Am. Dec. 279. COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 381 the title was outstanding in the United States for want of proper entry, and the grantee procured a third person to enter the land and take the title for his use, and thereafter suffered a pretended eviction by the patentee. 26 The cases deciding that a tortious disturbance is no breach of the covenant for quiet enjoyment have, in most instances, arisen between landlord and tenant. It is clear that in a lease a general covenant for quiet enjoyment extends only to entries and interrup- tions by those who have lawful right, for the tenant has his remedy by action against all trespassers and wrongdoers. 27 Therefore, where the leased premises had formerly been a house of ill-repute, and the lessee was so constantly disturbed by the calls of obnoxious persons that he was compelled to leave the premises, it was held that there was no breach of the covenant for quiet enjoyment, and that he could not recover damages. 28 And to constitute a breach of this covenant, the person who disturbs the tenant must have some lawful interest or right in the realty and not merely a title to some chattel that may be upon it. 29 The fact that leased premises were, at the time of the lease, in the adverse possession of a stranger, is no breach of the covenant for quiet enjoyment, if the person in possession was there without lawful right. 30 The paramount title under which the covenantee is evicted need not be a title in fee simple. The covenant of warranty applies as well to the pos- session as to the title, and if the covenantee be evicted by one having a term of years in the premises, or, in fact, any estate less than a fee simple, the covenant is broken, and a right of action ensues. 31 Upon the principle that the covenant of warranty is not 29 Frix v. Miller, 115 Ala. 476; 22 So. 146. See post 202. 27 KJmball v. Grand Lodge, 131 Mass. 59, 63, citing Ellis v. Welch, 6 Mass. 246; 4 Am. Dec. 122; Shearman v. Williams, 113 Mass. 481. Gardner v. Keteltas, 3 Hill (N. Y.), 330; 38 Am. Dec. 637. Howell v. Richards, 11 East, 633, 642. Dudley v. Folliott, 3 T. R. 584; Nash v. Palmer, 5 M. & S. 374. M Meeks v. Bowerman, 1 Daly (N. Y.), 99. 29 Kimball v. Grand Lodge, 131 Mass. 59, 63, where the breach complained of was the removal of certain fixtures from the demised premises by a prior tenant. But if a prior tenant remove a building from the premises under an agreement with the grantor or lessor, this will constitute a breach. West v. Stewart, 7 Pa. St. 123. 80 University v. Joslyn, 21 Vt. 52. "Rickert v. Snyder, 9 Wend. (N. Y.) 420. 382 MARKETABLE TITLE TO BEAL ESTATE. broken by a tortious disturbance, the covenantor, as will hereafter be seen, is not liable for expenses incurred by the covenantee in defending the title against an unfounded claim. 82 But the rule that a covenant for quiet enjoyment is not broken by a tortious disturbance does not apply where the disturbance was by the covenantor or those acting under his authority or direction, provided his acts amounted to an assumption of- right and title," and were not mere trespasses. 84 The failure of the landlord to keep the premises in repair, by reason of which the tenant is com- pelled to abandon the premises, is no breach of the covenant for quiet enjoyment. The lessee should protect himself by a covenant to repair. 85 If the covenant be against the claims of all persons "Post, 142. Butterworth v. Volkening, 4 Thomp. i C. (N. Y.) 650. "2 Sugd. Vend. (th Am. ed.) 272 (600) ; Rawle Covt. (5th ed.) $ 128. Corug Case, Cro. Eliz. 644. Crosse v. Young, 2 Show. 415. Sedgewick v. Hollenback, 7 Johns. (N. Y.) 376; Dyett v. Pendleton, 8 Cow. (X. Y.) 727; Mayor v. Mabie, 3 Kern. (N. Y.) 131. Surget v. Arighi, 11 Sm. & M. (Miss.) 87; 49 Am. Dec. 46. If the landlord permits a building to be erected on his own land so as to encroach on the enjoining demised premises, this is a breach of the covenant for quiet enjoyment. Sherman v. Williams, 113 Ma--. 481. Giving out that the covenantee has no right to premises, and bringing suits against him and his tenants, in consequencec of which the tenant quits the premises, and the covenantee is unable to rent them, amounts to an eviction on the part of the covenantor. Levitsky v. Canning, 36 Cal. 299. Held, also, in the same case, that the entry of the lessor upon the roof of the demised premises, and converting the same into a wash house or place of drying clothes, was a breach of the covenant for quiet enjoyment. If the wrongful acts of the lessor upon the demised premises are such as perma- nently to deprive the lessee of the beneficial enjoyment of them, and the lessee, in consequence thereof, abandons the premises, it is an eviction, and the intent to evict is conclusively presumed. Skally v. Shute, 132 Mass. 367. Mayor v. Mabie, 13 N. Y. 151; Loundsbery v. Snyder, 31 X. Y. 514: Edgerton v. Page, 20 X. Y. 281; Randall v. Albertis, 1 Hilt. (X. Y. ) 285; Drake v. Cockroft, 4 E. D. Smith (N. Y.) 34; Levy v. Bond, 1 K. I). Smith (X. Y.), 169; Campbell v. Shields, 11 How. I'r. (X. Y.) fH; o-rilvi.- v. Hall. .-> Hill (N. Y.), 52; Doupe v. Genin, 1 Sweeny (N. Y. S. C.), 25, 30, obiter. QMMda v. Stabel, 90 N. Y. Supp. 533; 98 A pp. Div. 600; Bennett v. I little. 4 Rawle (Pa.), 339; Avery v. Dougherty, 102 Ind. 443; 2 X. E. Rep. 123; Slayback v. Jones, 9 Ind. 470, semble. Hayncr v. Smith. fi3 111. 430; 14 Am. Rep. 124. Bartlett v. Farrington, 120 Mans. 284. "Codrington v. Denham, 35 X. Y. Super. Ct. 412. Moore v. Weber, 71 I 'a. St. 429; 10 Am. R*p. 708. A covenant for quirt enjoyment is not l>r<>ken by the refusal of the lessor to shore up the walls of the leased premises to pre- vent them from falling while an adjoining building is being removed, by COVENANTS OF WARRANTY AND FOli QUIET ENJOYMENT. whatsoever, it will, as we have seen, be restricted to the acts of persons having lawful claims, 36 but if the covenant be expressly against all pretending to claim, 37 or against the acts of designated persons, 38 it will embrace tortious disturbances by such pretenders or persons named. 143. Eminent domain and acts of sovereignty. The cove- nants of warranty and for quiet enjoyment do not embrace acts of sovereignty, 39 such, for example, as the exercise of the right of emi- nent domain. 40 The organic law of each State provides that pri- reason of which refusal the premises are rendered uninhabitable. Such refusal would be a breach only of a covenant of seisin. Howard v. Doolittle, 3 Duer (N. Y.), 464; Johnson v. Oppenheim, 34 N. Y. Super. Ct. 416. Ante, p. 336. KENT, C. J., in Folliard v. Wallace, 2 Johns. (N. Y.) 395. 31 Chaplain v. Southgate, 10 Mod. 383. M 2 Sugd. Vend. (8th Am. ed.) 271 (600); Rawle Covts. (5th ed.) 128, pi. 2. Nash v. Palmer, 5 Maule & S. 374, the court saying: " The covenantor is presumed to know the person against whose acts he is content to covenant, and may, therefore, reasonably be expected to stipulate against any disturb- ance from him, whether from lawful titfc or otherwise. If the warranty be against the claim of a ^articular person, and the covenantee be evicted by that person, it is not necessary, in an action for the breach, to aver an eviction by title paramount. Patton v. Kennedy, 1 Marsh. (Ky. ) 389; 10 Am. Dec. 744; Pence v. Duval, 9 B Mon. (Ky.) 49. But see Gleason v. Smith, 41 Vt. 293, where it was said that a covenant against the claims of persons named is a covenant against their valid claims, and not against such claims as they make without legal foundation or right. 39 Philips v. Evans, 38 Mo. 305, a case in which it was held that govern- mental emancipation of a slave, who had been sold with warranty, was no breach of the warranty. Osborn v. Nicholson, 13 Wall. (S. C. ) 655. Dyer v. Wightman (Legal Tender Cases), 12 Wall. (U. S.) 549. In Cooper v. Bloodgood, 32 N. J. Eq. 209 (1880), it was questioned whether a riparian owner, conveying premises including land between high and low-water mark, would, in the absence of an express warranty to that effect, be held by the usual covenants to have warranted against the notorious, sovereign title of the State to such lands under water. See Barre v. Flemings, 29 W. Va. 314; 1 S. E. Rep. 731, where it was held that a covenant of warranty in a convey- ance of premises extending to " low-water mark " was not broken by the fact that the public had an easement therein, and that the public authorities had enjoined the covenantee from building a wharf below high-water mark. The lessor of a market stall is not liable in damages to the lessee for an eviction under a municipal authority. Barrere v. Bartet, 23 La. Ann. 722. 40 Ellis v. Welch, 6 Mass. 246; 4 Am. Dec. 122, leading case; Bumnier v. Boston, 102 Mass. 19; Boston Steamboat Co. v. Man-son, 117 Mass. 34, semble. Weeks v. Grace, 194 Mass. 296; 80 N. E. 220. Patterson v. Arthur, 9 Watts (Pa.), 152; Bellinger v. Society, 10 Pa. St. 135; Dobbins v. Brown, 12 Pa. MARKETABLE TITLE TO KEAL ESTATE. vate property shall not be taken for public purposes without com- pensation, and the covenantee is protected by provisions for the indemnity of the owners of the appropriated lands made in pur- suance of this law. 41 When the parties enter into covenants for title it will be presumed that they had in view only existing rights under a paramount title, and the power of the State to appropriate the premises for public uses cannot be regarded as such a right/ 2 In one case it was held that the covenant of war- ranty was not broken by condemnation of the premises to public uses, though the covenantor had, before the execution of the deed, released all claim to damages. 43 The purchaser must also take St. 75, distinguished in Peters v. Grubb, 21 Pa. St. 455; Workman v. Mifflin, 30 Pa. St. 362; Bailey v. Miltenberger, 31 Pa. St. 37; Schuylkill, etc., R. Co. v. Sohmoerle, 57 Pa. St. 271. See, also, Maule v. Ashmead, 20 Pa. St. 483; Ross v. Dysart, 33 Pa. St. 452. Cooper v. Bloodgood, 32 N. J. Eq. 209. See elaborate note to this case. Kuhn v. Freeman, 15 Kans. 423; Gammon v. Blaisdell, 45 Kans. 221; 25 Pac. Rep. 580. Stevenson v. Loehr, 57 Til. 509; 11 Am. Rep. 36. Dobbins v. Brown, 12 Pa. St. 79, where it was said by GIBSOX, C. J.: "It will scarcely be thought that a covenant of warranty extends to an entry by the authority of the State in the exercise of its eminent domain. Like any other covenant, it must be restrained to what was supposed to be the matter in view; and no grantor who warrants the possession dreams that he covenants against the entry of the State to make a railroad or a canal; nor can it be a sound interpretation of the contract that would make him liable for it. An explicit covenant against all the world would bind him; but the law is not so unreasonable us to imply it. The entry of the public agents, and the occupancy of the ground, were not a breach of the. warranty." But see Scott v. Tanner (Mo. App.) 208 S. W. 24, where it was held that the covenant of warranty was broken by the existence of a drainage* ditch constructed under proceedings in eminent domain. "Frost v. Earnest, 4 Whart. (Pa.) 86. Ellis v. Welch, 6 Mass. 246; 4 Am. Dec. 122. Folta v. Huntley, 7 Wend. (N. Y.) 210. "Ellis v. Welch, 6 Mass. 24; 4 Am. Dec. 122. Frost v. Earnest, 4 Whart. (Pa.) 86. * Dobbins v. Brown, 12 Pa. St. 75. This ie a doubtful case. The release was executed in 1829. The conveyance with warranty was made in 1839. The actual appropriation of the premises to public use took place in 1840. Regarding the release as a conveyance of an interest in the estate, there was no exercise of the right of eminent domain, and the appropriation of the premises was tantamount to an eviction under a prior title derived from the grantor. Such a case obviously stands upon different ground from one in which the covenantee has recourse upon the appropriator for indemnity. In Stevenson v. Lochr, 57 111. 509; 11 Am. Rep. 36, it was held that if the condemnation transpired after the sale but In-fore the conveyance, the vendor would hold the damages in trn-t for the vendee, ami would be accountable therefor. COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 385 notice of public statutes restricting the use of the granted prem- ises ; and such restrictions constitute no breach of the covenant of warranty. 44 Upon a somewhat similar principle, it has been held that the covenant does not extend to the acts of a newly formed State in restricting the ownership of shore proprietors to the line of ordinary high tide, the warranty having been made before the formation of the State when the owner, under the territorial government, was permitted to extend his structures out to navigable depth. 45 144. Eviction. General rule. The covenant of warranty is a covenant against eviction only. It is not a covenant that the estate conveyed is indefeasible. Except in those States in which the law in express terms gives to a warranty the effect of a covenant of seisin, a general covenant of warranty in a deed does not imply a covenant of seisin, and, therefore, is not broken by the existence of a better title in a stranger. Xo rule or principle of the law of warranty has been more frequently declared than this. 46 Xor does "Xeeson v. Bray, 19 X. Y. Supp. 841. In Richardson-Kellett Co. v. Kline, 70 Fla. 23; 69 So. 203, it was held that, in a conveyance of a part of the " Everglades " swamp land, a reservation of a right in favor of the State to construct a drainage canal through the land, would not be a breach of a covenant against incumbrances; the right in question being also secured to the State by statute. 45 Feurer v. Stewart, 83 Fed. Rep. 793. 49 Kent Com. 472; 2 Lorn. Dig. 762; Rawle Covts. (5th ed.) 131. Barlow v. Delaney, 40 Fed. Rep. 97. Xorthern Pac R. Co. v. Montgomery, 86 Fed. Rep. 251. Caldwell v. Kirkpatrick, 6 Ala. 62; 41 Am. Dec. 36. Oliver v. Bush, 125 Ala. 534; 27 So. Rep. 923; Gulf Coal Co. v. Musgrove, 195 Ala. 219; 70 So. 179. Beebe v. Swartwout, 3 Gil. (111.) ISO: Moore v. Vail, 17 111. 185; Owen v. Thomas, 33 111. 320; Bostwick v. Williams, 36 111. 65; 85 Am. Dec. 385. Wilson v. Irish, 62 Iowa, 260; S. C., 57 Iowa, 184. Emerson v. Minot, 1 Mass. 464; Lothrop v. Snell, 11 Cush. (Mass.) 453. Wilty v. Hightower, 12 Sm. & M. (Miss.) 478. Troxejl v. Johnson, 52 Xeb. 46; 71 X. W. Rep. 968; Troxell v. Stevens, 57 Xeb. 329; 77 X. W. Rep. 781; Merrill v. Suing, 66 Xeb. 404; 92 X. W. Rep. 618. Kent v. Welch, 7 Johns. (X. Y.) 258; 5 Am. Dec. 266, leading case; Vanderkarr v. Vanderkarr, 11 Johns. (X. Y.) 122; Kelly v. Dutch Church, 2 Hill (X. Y.), 105; Greenvault v. Davis, 4 Hill (X. Y.), 643; Fowler v. Poling, 6 Barb. (X. Y.) 165; Blyden- burg v. Cotheal, 1 Duer (X. Y.). 195. Inderlied v. Honeywell, 84 X. Y. Supp. 333; 88 App. Div. 144. Bender v. Fromberger, 4 Dall. (Pa.) 436; Clarke v. McAnulty, 3 S. & R. (Pa.) 364; Patton v. McFarlane, 3 P. & W. (Pa.) 422; Dobbins v. Brown, 12 Pa. St. 75; Stewart v. West, 14 Pa. St. 336. Allison 49 386 MAKKETAHLK TITLK 'JO KKAL KSTATE. the covenant of warranty, independently of statute, inehide a cove- V. Alli-oii. 1 Yerg. (Tenn.) 16; Ferris v. Harshea. Mart. & Yerg. (Tenn.) 54; 17 Am. Dec. 7*2; Stuart v. Xelson, 4 Hayw. (Tenn.) 200: Crutchcr v. Stump, 5 Hayw. (Tenn.) 100-. Young \. Butler, 1 Head (Tenn.) f>4S. Contra, Talbot v. Bedford, Cooke (Tenn.) 447. Findlay v. Tom-ray, 2 Rob. (Ya.) 374, 379; Marbury v. Thornton, 82 Ya. 374; 1 S. K. Rep. 909; Jones v. Richmond, (Ya.) 13 S. K. Rep. 414. Oshurn v. Pritchard, 104 Ca. 145; 30 S. E. Rep. 056; Bedell v. Christy, 62 Kan. 7(50; 64 Pao. Rep. (529. Kunt/man v. Smith. 77 X. ,1. Eq. 30; 75 Atl. 1009. Grant v. Mr-Arthur. 153 Ky. 350: 155 S. W. 732. An encroachment of 14 indies on an adjoining lot w.is held no ground for relief where the grantee had not been disturbed in his posses- sion. Tepper v. Xiemier, 32 Ky. L. K. 407: 10.) S. \V. S()fi. In Clarke v. McAnulty, 3 Serg. & R. (Pa.) 364, it was said by GIBSON, J. : "The cove- nant of warranty protects only against an ouster from the possession, and there can, therefore, be no breach of it aligned without alleging an actual eviction. It is true that evidence of a paramount title in a stranger, and that the warrantee in consequence yielded up the possession, will support such an allegation, for the law does not require the idle and expensive ceremony of being turned out by legal process when that result would he inevitable. It is unnecessary to cite cases to this point, the difference between a covenant of warranty and of scis-in, being recognized as existing in England and our sister States." ATI apparent exception to the rule staled in the text will be found in Daggett v. Reas, 70 \Yis. 60; 48 N. \Y. Rep. 127, where it was held that a covenant of warranty was broken by an outstanding tax title in a stranger. This, however, was upon the ground that recording the tax deed constructively vested the possession in the tax purchaser. In South Carolina, the courts, following the civil law, have held in a number of cases that an eviction is not necessary to a breach of the covenant of warranty, and that the covenant is broken by n superior title outstanding in a stranger. Pringle v. Witten, 1 Bay (S. C.), 254; 1 Am. Def. 612; Bell v. Higgin, 1 Bay (S. C.), 326; Sumter v. \Velch, 2 Bay (S. C.), 558: Mackay v. Collins, 2 Xott &. McC. (S. C.) 180; 10 Am. Dec. 586; Moore v. Lanham. 3 Hill L. (S. C.) 304; Mitchell v. Yaughan. 2 Hrev. L. (S. C.I 100. But sec Jeter v. Glenn, 9 Rich. L. (S. C.) 377, and. post, S 190. The same rule existed in Texas, with this qualification, namely, that the purchaser nm-: have bought without notice of the outstanding title. Doyle v. Hmd, 07 Tex. 062; 4 S. \V. 241; Groesbeck v. Harris, 82 Tex. 411; 19 S. W. Rep. 850; since over- ruled in Land Co. v. Xorth. 92 Tex. 72: 45 S. W. 904. See. also. Huff v. Reilly, (Tex. Civ. App.) 04 S. W. 38J. In Pence v. Gahbert. 63 Mo. App. 302, it was held that the covenantce, who had not been actually evicted, could not recover substantial damages though judgment establishing a para- mount title to an undivided half of the property, and also n judgment for metne profit*, had leen recovered against him. and he had paid the latter judgment. In the State of Kentucky also the action may l>e maintained without showing an eviction if the defendant is about to remove his prop- erty from the State or i insolvent, or a non-resident. Knight v. Schroader, 14S Kv. 610; 147 S. W. 378. COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 387 nant against incumbrances/ 7 though of course it is broken as well by an eviction under an incumbrance as by the enforcement of the rights of one having the better title. 48 The statute of limitations does not run upon a covenant of warranty until there has been an eviction. 49 For the purpose of this rule, a decree of court, in a suit to which the covenantee was a party, declaring title to be in a third person was treated as an eviction. 00 For the same purpose, possession of the premises by an adverse claimant at the time of the covenant, is an eviction. 51 An action upon a covenant of warranty is an action upon a specialty, and governed by the statute of limitations applicable to specialties. 52 The cause of 4T Leddy v. Enos, (Wash.) 33 Pac. Rep. 508. Boreel v. Lawton, 90 N. Y. 293; Hebler v. Brown, 41 X. Y. Supp. 441; Lennig v. Land Co., 107 Va. 458 ; 59 S. E. 400. 48 Jackson v. McCauley, 13 Wash. 298; 43 Pac. 41. Shelton v. Johnston, (W. Va.) 95 S. E. 958. Judgment of foreclosure of a vendor's lien on the land is not a breach of the covenant of warranty in a conveyance of the land, until there has been a sale of the land under the judgment. Davis v. Teal (Tex. Civ. App.) 200 S. W. 1166. 49 Crisfield v. Storrs, 36 Md. 129; 11 Am. Rep. 480; X. Pac. R. Co. v. Mont- gomery, 86 Fed. 251; Foshay v. Shafer, 116 Iowa, 302; 89 N. W. Rep. 1106; Wiggins v. Pender, 132 X. C. 628; 44 S. E. Rep. 362; Shankle v. Ingram, 133 X. C. 254; 45 S. E. 578. Chenault v. Thomas, 26 Ky. Law R. 1029; 83 S. W. Rep. 109. Cheney v. Straube, 35 Xeb. 521; 53 X. W. Rep. 479. Brooks v. Mohl, 104 Minn. 404; 116 X. W. 931; 124 Am. St. Rep. 629; 17 L. R. A. (X. S.) 1195; Rennie v. Gibson, (Okl.) 183 Pac. 483; Whatcom v. Wright. 102 Wash. 566; 173 Pac. 724; McDonald v. Ward, 99 Wash. 354; 169 Pac. 851; L. R. Ann. 1018 F. 662. The statute begins to run, not from the time of the assertion of the paramount title, but from the time of the adjudication of the validity of that title against the covenantee. Gardiner v. McPike (Mo. App.) 184 S. W. 956. In Texas, it seems that the statute is held to run on a covenant of warranty from the time of institution of a suit by an adverse claimant to recover the land, regardless of the precise time of the eviction. Alvord v. Waggoner, (Tex. Civ. App.) 29 S. W. Rep. 797. Where a remote grantee was evicted upon disaffirmance of the con- veyance to the original grantee by a minor, the statute did not begin to run until such disaffirmance and judgment against the defendant in a suit by the sometime minor to quiet his title. Pritchett v. Redick, 62 Xeb. 296; 86 X. W. Rep. 1097. so Foshay v. Shafer, 116 Iowa, 302; 89 X. W. Rep. 1106. For the like pur- pose; the fact that the title is outstanding in the United States, has been held an eviction at the time of the covenant. Quinn v. Lee, 137 Ark. 69 ; 207 S. W. 211. ;1 Whatcom Timber Co. v. Wright, 102 Wash. 566; 173 Pac. 724. "Kern v. Kloke, 21 Xeb. 529; 33 X. W. Rep. 574. 388 MARKETABLE TITLE TO ItEAL ESTATE. action accrues at the time of the breach of the warranty, and not at the time of the contract of sale. 53 It has been held that an action may be maintained before eviction on a bond " to indemnify and make the vendee safe and secure in the title.'' : Such a bond imposes a greater obligation than a covenant of seisin, or for quiet enjoyment, and, it has been intimated, is not mergerl or extinguished by the acceptance of a deed. 55 The rule that the covenant of warranty is not broken by the existence of a superior outstanding title in another where there has been no actual eviction, has been held not to apply where the outstanding title is in the State ; M or in the United States. 57 As the covenant is broken only by an eviction, it follows that no suit can be maintained on the warranty until an eviction, actual or constructive, occurs. 58 145. Entry by adverse claimant. Legal process. Eviction of a grantee of lands, with warranty, is of two kinds, actual and con- structive. Actual eviction is an amotion or expulsion of the grantee from tho warranted estate, either by a peaceable entry and disseisin on the part of him who has the superior title, 59 or by the officers of the law in pursuance of process issued on a judg- ment or decree, establishing the title of an adverse claimant. In a few early cases it has been held that to constitute an eviction, the right of the evictor must have been established by judicial "Crawford Co. Bank v. Baker, 95 Ark. 438; 130 S. W. 556. "Anderson v. Washabauph, 43 Pa. St. 118. **Rawle Covts. (5th ei>. Tlii- exception does not apply where the grantee is in pii---i.iM under title derived through a defective railroad grant of public land-, and has taken -teps to perfect his title as a bonn fide purchaser hy procuring a patent from the government, under an act passed for the relief of such purchasers. Burr v. Greeley. 52 Fed. Rep. 920. I ..!/. v. Hohart, 112 Minn. S; 127 X. W. 494. "Dennis v. Long. 128 Ark. 420; 194 S. \\ . i_'. g {7. Alhright v. Schwahland, 98 Neb. 190; 152 N. W. 301, where held that the cancellation of the cove- nantor's entry and final receipt of the receiver, was a constructive eviction of the eovenantee. "As in Hodges v. Latham, 98 N". C. 239; 3 S. C. Rep. 495. Here the nantee left the prcmi-.- for a short time, and upon his return found them in the possession of one claiming under a paramount title. COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 389 decision, and the covenantee expelled from the premises by possess- ory process. 60 But the weight of authority establishes the rule that a lawful expulsion of the covenantee from the premises by one having a better right, operates a breach of the covenant of warranty, whether the expulsion was or was not in pursuance of judicial sanction. 61 An eviction or ouster in pais must, oi course, be established by parol evidence. 62 But if there has been an actual eviction in pursuance of a judgment in ejectment against the covenantee, the record thereof will be the only proper evidence of the fact. 63 An entry by mortgagee upon demised premises for condition broken and a threat to expel the lessee unless he will attorn to him (the mortgagee) amounts to an eviction under a statute giving the mortgagee a right to enter for condition broken. 64 And a delivery of seisin by the sheriff to a judgment creditor of the grantor in satisfaction of an execution en the judgment is an eviction and breach of the covenant of warranty. 60 Of course there will be no breach of the covenant of warranty if the grantee be evicted under an incumbrance which he assumed to 80 Stewart v. Drake, 4 Halst. (N. J. L.) 141. Lansing v. Van Alsytne, 2 Wend. (N. Y.) 563, obiter; Hunt v. Amidon, 4 Hill (N. Y.) 345; 40 Am. Dec. 283, obiter. 9 See, also, Walker v. Robinson, 163 Ky. 618; 174 S. W. 503. "Booker v. Bell, 3 Bibb (Ky.), 173; 6 Am. Dec. 641. Fowler v. Poling, 6 Barb. (N. Y.) 165. See, also, case cited post, "Constructive Eviction," 146. A decree in equity, by which the covenantee loses the land, is equiva- lent to eviction by process of law. Martin V. Martin, 1 Dev. (N. C.) L. 413. 82 Booker v. Bell, 3 Bibb (Ky.), 173; 6 Am. Dec. 641. Randolph v. Meeks, Mart. & Yerg. (Tenn.) 58. 88 Booker v. Bell, 3 Bibb (Ky.), 173; 6 Am. Dec. 641. 84 Tuft v. Adams, 8 Pick. (Mass.) 547; Smith v. Shepard, 15 Pick. (Mass.) 147; 25 Am. Dec. 432; White v. Whitney, 3 Met. (Mass.) 81. The recording of a certificate of entry by a mortgagee for condition broken shows a breach of the covenant of warranty. Furnas v. Durgin, 119 Mass. 500; 20 Am. Rep. 341. In Collier v. Cowger, 52 Ark. 322; 12 S. W. Rep. 702, it was held that a judgment foreclosing a prior mortgage on the land in the possession of the mortgagee was a constructive eviction. In Kidder v. Bork, 33 N. Y. Supp. 663, it was held that a mere allegation of a " decision " establishing a lien on the warranted premises was not sufficient as an allegation of a judgment or eviction. It seems to have been assumed in this case that a judgment estab- lishing the lien would have been equivalent to an eviction. 85 Gore v. Brazier, 3 Mass. 523; 3 Am. Dec. 182; Wyman v. Brigden, 4 Mass. 150; Bigelow v. Jones, 4 Mass. 512; Barrett v. Porter, 14 Mass. 143. 390 MARKETABLE TITLE TO REAL ESTATE. pay as part of the purchase price, even though, by reason of some defect in the title, the grantee was unable to effect a loan on the warranted premises with which to discharge the incumbrance. 66 An assignment of dower by metes and bounds in the warranted premises and the placing of the widow in possession is, of course, an eviction and breach of the covenant of warranty. 67 It has even been held that a conveyance of lands which were at the time sub- ject to dower was a breach of this covenant. 68 The eviction of a covenantee by foreclosure sale under a mortgage is a breach of a covenant of warranty though the judgment of foreclosure be after- wards reversed, since the reversal does not aifect the title or pos- session of the purchaser. 69 The term "eviction" does not mean, in all cases, an absolute expulsion of the coveiiantee from the land. The existence and exercise of a private right of way over the premises, have been held an eviction of the grantee, and, consequently, a breach of the covenant of warranty and for quiet enjoyment. 70 But the mere existence of an easement in the granted premises, which has not been asserted: so as to affect the use of the premises, is not a breach of the warranty. 71 140. Constructive eviction. Inability to get possession. A constructive' eviction of a grantee, with warranty, occurs (1) Where the premises are in the adverse possession of one holding under a superior title, and (2) Where the grantee surrenders tin- possession to one having a better title, in order to avoid an inevitable expulsion from the premises. (3) Where the covenantor refuses, whether tortiously or not, to deliver po->ession of the premises to the eovenantee. 72 Without the one or the other of these " Lamb v. Baker, (Xeb.) 52 N. W. Rep. 2S5. "Johnson v. Nyee, 17 Ohio. 66: 40 Am. Dec. 444. Davis v. Logan, 5 R. Mon. (Ky.) 341. Lewis v. Lewis, 4 Rich. L. (S. C.) 12. Compare, Combs v. Corabsl 130 Ky. 827: 114 8. W. 334. * Blanc-hard v. Blanc-hard, 48 Me. 174.. * Smith v. Dixon, 27 Ohio St. 471. "Rea v. Minkler. 5 Lans. (N. Y.) 196. Kller v. Moore, 63 X. Y. Supp. 88; 48 App. Div. 4H.1. "Diseker v. Kau Claire Land Co., 86 S. C. 281; 68 8. E. 629. The action \ill.iL'<- in laying out a street over tin- ^rantnl |nvmi-r-. i* an eviction <>i tli grantee. Baker v. Johnson. 165 X. Y. Supp. 2J."i: ITS App. Div. 230. "Dexter v. Manly, 4 Cuah. (Muns.) 14: Canada v. Strnrbel, 90 X. Y. Supp. 633; 98 App. Div. 000; Atler v. Kr-kinr. 50 Tex. Civ. App. 576; 111 S. W. 186. COVENANTS OF WARRANTY AND FOR QUIET EXJOYMENT. 391 conditions there cannot be a constructive eviction. 73 Where, at the time of a conveyance, the grantee finds the land in the possession of one claiming under a paramount title, the covenant of warranty or for quiet enjoyment will be held to be broken, without any other act on the part of either the grantee or the claimant. The claimant can do no more towards the assertion of his title than to hold possession, and as to the covenantee, the law will not compel him to commit a trespass in order to establish a lawful right in another action. 74 "Boreel v. Lawton, 90 X. Y. 293; 43 Am. Rep. 170; Mead v. Stackpole, 40 Hun (X. Y.), 473. 74 Platt Covts. 327; 2 Lorn. Dig. 269; Rawle Covts. (5th eut it did not appear that the company laid any claim to the land or that the plaintiff hud made any effort to get possession and judgment was rendered for the defendant. COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 393 he cannot recover on the warranty. 78 It is not necessary to con- stitute a breach of warranty that the person in possession shall hold under a title in fee simple. The covenant of warranty goes to the possession as well as to the title. Therefore, if a stranger be in possession of the premises, holding as tenant for life 79 or for a term of years, 80 and the grantee is unable to get possession, the covenant is broken and a right of action ensues. A decree of court permanently enjoining the covenantee from removing any part of a party-wall erected partly on the granted premises and partly on the adjoining premises, as a protection against freshets, is a constructive eviction of the covenantee from that part of the warranted premises occupied by the wall. 81 147. Vacant and unoccupied lands. There is no opportunity for an application of the doctrine of constructive eviction by ina- bility to get possession where the warranted premises consist of wild and uncultivated lands which are vacant and unoccupied. The legal title draws after it constructive possession which will continue till actual eviction, 82 and the grantee may maintain tres- "Rindskop v. Trust Co., 58 Barb. (N. Y.) 49. 79 Blanchard v. Blanchard, 48 Me. 174, a case in which a widow was entitled to part of the land as dower. Dower had not, it seems, been actually assigned in this case, and the broad proposition was- laid down that if the warranted premises be subject to d'ower at 4he time of the conveyance, the warranty is broken as soon as made. Citing Porter v. Xoyes, 2 Greenl. (Me.) 26; 11 Am. Dec. 30, and Sherman v. Ranger, 22 Pick. (Mass.) 447. In Tuite v. Miller, 10 Ohio, 382, it was held that a decree against the covenantee to pay a certain sum to a widow in lieu of dower was not a breach of the covenant of warranty. It would be a breach of a covenant against incumbrances. s Rickert v. Snyder, 9' Wend. (X. Y.) 420. Leonard v. Gary, 23 Ky. Law R. 1325; 65 S. W. Rep. 124. Anthony v. Rockefeller, 102 Mo. App. 326; aff'd 76 S. W. Rep. 491, though the grantee had' knowledge of the lease. Bass v. Starns, 108 Ark. 357; 158 S. W. 136; Fortescue v. Real' Est. Co., 75 X. J. L. 272; 67 Atl. 1024; Sheldon v. Crane, 146 Iowa 461; 125 X. W. 238. Compare Simonds v. Diamond Match Co., 159 Mich. 241; 123 X. W. 1132; Baldwin v. Smith, (Tex. Civ. App.) 119 S. W. 111. It has been held that inability to get possession of the premises from a lessee, is no breach of the warranty if the grantee purchased with notice of the outstanding lease. Hammond v. Jones, 41 Ind. App. 32; 83 X. E. 257. " 81 Ensign v. Colt, 75 Conn. Ill; 52 Atl. Rep. 829. "Moore v. Vail, 17 111. 190. Wood v. Forncrook, 3 Thomp. & C. (N. Y.) 303. Steiner v. Baughman, 12 Pa, St. 106. Chandler v. Brown, 59 X. H. 370. Smith v. Lumber Co., 131 Ark. 22; 198 S. W. 107. In McLennan v. 50 394 MAKKETAKLE TITLE TO KEAL ESTATE. pass against any one entering on the land. 83 If the title is defec- tive the grantee will have no right of action on the grantor's covenant of warranty until the true owner or some one claiming under him has actually entered upon and taken possession of the premises,"* or until his rights have been judicially established against the grantee. 8 " A mere sale of the premises to a stranger by the true owner will not amount to a constructive eviction. 86 148. Surrender uf possession. A grantee with warranty may surrender the possession of the premises to a holder of the para- mount title, and this will be a constructive eviction and breach of the covenant of warranty. He is not obliged to defend himself against a title which he is satisfied must ultimately prevail,* 1 or to Prentice, 85 Wis. 427, it appeared that the premises were vacant and there was nothing to prevent the rovenantee from taking possession, except the occupation of a part of the premises by a railroad embankment used by the company in rolling logs from its cars. It did not appear that such use was adverse or hostile to the title conveyed, nor that the company had- attempted to acquire any title to the part of the premises so used. It was held that the facts stated did not amount to a constructive eviction of the covenautee. "Jackson v. Sellick, 8 Johns. (X. Y.) 262; Van Rensselaer v. Van Rens- selaer. 9 Johns. (X. Y.) 377. Mather v. Tremty, 3 S. 4 R. (Pa.) 514: 8 Am. Dec. 6$3. M \Vood v. Forncrook, 3 Thomp. & C. (X. Y.) 303; St. John v. Palmer. .1 Hill, (X. Y.) 001. Moore v. Vail, 17 111. 190. But see Mclnnis v. Lyman, 02 Win. 191; 22 X. \V. 40.~>, where it was held that a conveyance of unoc- cupied lands to which the grantor had no title, is of itself a constructive eviction and breach of warranty. See, also, Koepke v. Winterfield, 110 Wis. 44: 92 X. W. Rep. 437. Scott v. Kirkendall, 88 111. 463; 30 Am. Rep. 562. Snider v. Van Petten, 180 111. App. 677. "Smith v. Lumlier Co., 131 Ark. 22; 108 S. W. 107. Allis v. Xininger, 2.5 Minn. 525, where it was held that a judgment in ejectment against a grantee of unoccupied lands and an abandonment of all further claim to the premises by him, constituted a breach of the covenant of warranty. In Williams v. Sliaw, X. C. Term. Rep. 197; 7 Am. Dec. 100, it was held that a recovery of damkges in trespa>s ugainst the grantee for cutting down timber on the warranted premises, wliich were unoccupied, amounted to a breach of the covenant of warranty. Hamilton v. Lugk, 88 Ga. 520; 15 S. E. Rep. 10. Green v. Irving. 54 Mi**. 450; 2S Am. Rep. 300. Matteson v. Vaughn, 38 Mich. 373. I..... mi- v. Bedel, 11 X. H. 74. "2 Waif* Art. & Def. 389; Rawle CovU. (5th ed.), S 134; 2 Greenl. Kv.. I 244; 7 Am. & Kng. Knryo. of L. 30. Dupuy v. Roebuck. 7 Ala. 484. 48S: l>avenport v. Bartlett. 9 Ala. 17!; Criflin v. Reynold*. 17 Ala. 198; Cunter V. Williams. 40 Ala. 572; Heflin v. Phillips, (Ala.) 11 So. Rep. 729. Prcst- wood v. McGowan, 128 Ala. 207; 29 So. 386. McGary v. Hastings, 39 Cal. COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 395 wait until the true owner forcibly ejects him, or until he is turned out by the shoulders under legal process. 88 " The law does not require the idle and expensive ceremony of being turned out by legal process, when that result would be inevitable." 89 There is no 360; 2 Am. Rep. 456; Booth v. Starr, 5 Day (Conn.), 282; 5 Am. Dec. 149. Lowery v. Yawn, 111 Ga. 61; 36 S. E. Rep. 294. McHullen v. Butler Co., 117 Ga. 845; 45 S. E. 258. Moore v. Vail, 17 111. 185; Brady v. Spruck, 27 111. 478; Owen v. Thomas, 33 111. 320; Harding v. Larkin, 41 111. 422; Claycomb v. Hunger, 51 111. 378. Reasoner v. Edmundson, 5 Ind. 395; Ha son v. Cook- sey, 51 Ind. 519; Axtel v. Chase, S3 Ind. 546; Bever v. North, 107 Ind. 544; 8 X. E. Rep. 576. Funk v. Creswell, 5 Clarke (Io.), 62: Thomas v. Stickle, 32 Iowa, 76. Radcliff v. Ship, Hard. (Ky.) 279. Hamilton v. Cutts, 4 Hass. 349; 3 Am. Dec. 222, leading case. Ogden v. Ball, 40 Hinn. 94; 41 X. W. Rep. 453. Wagner v. Finiiegan, 65 Minn. 115; 67 X. W. Rep. 795. Hall v. Bray, 51 Ho. 288; Morgan v. R. Co., 63 Mo. 129; Ward v. Ashbrook, 78 Mo. 515; Lambert v. Estes, 99 Mo. 604; 13 S. W. Rep. 284. Snyder v. Jennings, 15 Xeb. 372; Real v. Hollister, 17 Xeb. 661. Drew v. Towle, 10 Fost. (X. H.) 531; 64 Am. Dec. 309. Greenvault v. Davis, 4 Hill (X. Y.), 643; Fowler v. Poling, 6 Barb. (X. Y.) 165; Stone v. Hooker, 9 Cow. (X. Y.) 157; Home Life Ins. Co. v. Sherman, 46 X. Y. 373; Hyman v. Boston Chair Manfg. Co., 58 X. Y. Super. 282; 11 X. Y. Supp. 52. Parker v. Dunn, 2 Jones L. (X. C.) 204. Patton v. McFarlane, 3 Pen. & W. (Pa.) 422; Poyntell v. Spencer, 6 Pa. St. 254; Steiner v. Baughman, 12 Pa. St. 106. Collis v. Cogbill, 9 Lea (Term.), 137. Peck v. Hensley, 20 Tex. C73. Herbert v. Handy, 29 R. I. 543; 72 Atl. 1102; Eaker v. Harvey (Mo.) 179 S. W. 985. In Davenport v. Bartlett, 9 Ala. 187, the court said that: "In Roebuck v. Dupuy, 7 Ala. 487, we intimated that the plaintiff might recover in an- action upon a cove- nant of warranty, though he had voluntarily yielded to a dispossession, pro- vided the title to which he yielded was a good title and paramount to that of the warrantor; and, upon mature reilection and examination of !he authori- ties, we are satisfied that such is the law. Why should the vendee be com- pelled to involve himself in a law suit, when it is self evident he must be defeated? What conceivable public or private good is to be accomplished by such a course? Xone that we can conceive of, and we are, therefore, of opinion that the covenantee has the right to purchase in the incumbrance or outstanding title, and sue the Avarrantor upon his covenant." In Allis v. Xininger, 25 Minn. 525, the court observed: "Although the name eviction is still used to characterize the fact or facts which are allowed to constitute a breach of the covenant, an eviction in fact is no longer necessary;" and, continuing, laid down this- rule: "If, at the date of the covenant, there is a superior title in a third person, whenever that title is actually asserted against the covenantee and the premises claimed tinder it, and the covenantee is obliged to yield and does yield his claim to such superior title, the cove- nant to warrant and defend is broken. To such circumstances, we may, for the sake of convenience, apply the term eviction." 88 Stewart v. West, 14 Pa. St. 336. 80 Clark v. McAnulty, 3 S. & R. (Pa.) 372. 396 MARKETABLE TITLE TO KEAL ESTATE. reason why such a surrender without the trouble and expense of a law suit should deprive him of a remedy on the covenant. The grantor is not injured by such an amicable ouster. On the con- trary, it is a benefit to him, for he thus saves the expense incurred by the grantee in defending the title. 90 And if he may surrender the possession without a legal contest, a fortiori, may he yield to the true owner after judgment against himself in ejectment ; the law having settled the title, he need not wait for its officers to enforce the sentence; it is not for the court to discourage a ready acquiescence in its decisions. 91 A few cases may be found inclin- ing to the view that a voluntary surrender of the possession to an adverse claimant is not such an eviction as amounts to a breach of the covenant of warranty. 92 But the rule as stated above may be regarded as settled law in nearly every State of the Union. An attornment by the covenantee to the true owner, or to one having the right to sell the premises under a lien or incumbrance, is a enii.-trurtive eviction. 98 The surrender of possession must be made to the adverse claim- ant. The covenantee cannot, on failure of title, return the prem- to the covenantor and maintain an action for breach of the covenant of warranty. 94 A mere judgment in ejectment against the covenantee, unaccom- * BRO\\ XSON-. .!.. in Greenvault v. Davis, 4 Hill (N T . Y.), 643. "Sterling v. Peet, 14 Conn. 254. Meeks v. Meeks, 6 Ga. App. 304; 63 S. K. 270. "Dennis v. Heath. 11 Sm. & M. (Miss.) 206; 49 Am. Dec. 51; Heath v. Newman. 11 Sm. & M. (Miss.) 201. In Kentucky, it seems that the covenantee <-a unfit stir render the possession to an adverse claimant and recover as for a breach of the covenant of warranty, unless there has been a judicial deter- mination of the superiority of the adverse claimant's title, even though the covenantee can show that such title WHS in fact paramount. Huff v. Cumber- land Val. Land Co.. (Ky. | 30 S. W. Rep. 660 (not officially reported). '' 1'iiyntell v. Spencer. 15 Pa. St. ~2't\. An .xeciit ion levied on land under a judgment a-_'ainM the covenantor and seisin and possession delivered to the judgment creditor is nn eviction and a breach of the covenant of warranty, though there IK> no actual amotion of the covenantee from the premise- l>y n <>f his attorning to the creditor. Gore v. Brazier. 3 Mnss. ;V23; 3 Am. Dec. 182. An entry ii|M>n a mortgaged estate to foredo-e upon breach of con- dition i-, without actual ouster, an eviction for which a warrantor can recover upon hi- mvciiant. Furnaa v. Durgin, 119 Mass. 500; 20 Am. Rep. 341. "Axtel v. Chase, 83 Ind. riir,. COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 397 panied by a surrender of the possession, is not an eviction, and, therefore, not a breach of the covenant of warranty. 95 In some cases it has been said, in a general way, that a judgment in eject- ment amounts to an eviction, but upon examination it will be found that in most, if not all of the cases, the covenantee had either yielded up the possession to the plaintiff in ejectment, or had purchased his rights and remained in possession under his title. 96 Of course, a mere action of ejectment cannot amount to a breach of the covenant of warranty until it results in an action 95 Clement v. Collins, 59 Ga. 124; Davis v. Smith, 5 Ga. 274; 47 Am. Dec. 279; McDowell v. Hunter, Dudley (Ga.) 4; Burns v. Vereen, 132 Ga. 349; 64 S. E. 113. Dennis v. Heath, 11 Sm. & M. (Miss.) 206; 49 Am. Dec. 51; Heath v. Newman, 11 Sm. & M. (Miss.) 201. Ferris v. Harshea, Mart. & Yerg. (Tenn.) 48; Stipe v. Stipe, 2 Head (Tenn.), 169, semble. Kerr v. Shaw, 13 Johns. (1ST. Y.) 236. Knepper v. Kurtz, 58 Pa. St. 480; Paul v. Witman, 3 Watts & S. (Pa.) 407. Such, also, is the rule of the civil law. Fowler v. Smith, 2 Cal. 568, citing Pothier Cont. 89. 94 In Drury v. Shumway, 1 D. Chip. (Vt.) 110; 1 Am. Dec. 704, it was held that a judgment in ejectment against the covenantee was an eviction. The covenant of warranty was broken by the covenantor's failing to defend the title. See, also, Chandler v. Brown, 59 N. H. 370; Hubbard v. Stannaford, 30 Ky. L. R. 1044; 100 S. W. 232. And in Woodward v. Allen, 3 Dana (Ky. ), 164, it was broadly declared that a judgment against the covenantee in ejectment, without any other fact, was equivalent to eviction, but in all these cases it seems that the covenantee had actually attorned to the eject- ment plaintiff, or purchased his title. But see Boyd v. Bartlett, 36 Vt. 9, where the broad rule that a recovery in ejectment against the covenantee by virtue of an older and paramount title, was a breach of the covenant of warranty without actual eviction, was laid down. So, also, in King v. Kil- bride, 58 Conn. 109; 19 Atl. Rep. 519, obiter, and Clark v. Whitehead, 47 Ga. 516. Such, also, seems to be the rule in Texas, the covenantee being there permitted, when sued in ejectment, to implead the covenantor, and have judg- ment over against him, as in case of breach of warranty, if the adverse claim be established. Kirby v. Estill, 75 Tex. 485; 12 S. W. Rep. 807; Johns v. Hardin, 81 Tex. 37; 16 S. W. Rep. 623. In Finton v. Eggleston, 61 Hun (N. Y.), 246; 16 1ST. Y. Supp. 121, it was held that the Statute of Limita- tions began to run upon a covenant of warranty as soon as judgment in eject- ment against the covenantee was entered, which necessarily gives to the judgment the effect of an eviction. A judgment in ejectment against the covenantor, who was impleaded with the covenantee, is an eviction. Gibbons v.. Moore, 98 Ark. 501, 136 S. W. 937. The reversal of a decree in favor of the covenantee, in a suit by him to quiet title to the land, is a construc- tive eviction of the covenantee. Beach v. Nordman, 90 Ark. 59; 117 S. W. 785. A judgment in ejectment against the covenantee where the lands conveyed were wild and uncultivated, is a breach of the covenant for quiet enjoyment. Smith v. Lumber Co., 131 Ark. 22: 198 S. W. 107. 398 M Alt KKT ABLE TITLE TO HEAL ESTATE. or virtual eviction of the grantee. 97 A voluntary abandonment of possession by the eovenantee after judgment in ejectment will not be construed an eviction, unless possession of the premises be thereafter taken by the plaintiff in ejectment. 98 It has been held that if the covenant be to defend the right and title against the claims of all persons a judgment in ejectment against the eove- nantee will amount to a breach of the warranty, though it has not resulted in an actual ouster. 99 But a eovenantee who voluntarily paid off such a judgment, pending proceedings by the covenantor to have it set aside, is not entitled to recover on the warranty. 1 A judgment in ejectment for the alternative value of the premises, without improvements, if the plaintiff should elect to accept the same instead of possession, has been held a constructive eviction and breach of warranty. 5 A judgment in ejectment against the eovenantee where he remains in possession under the " occupying claimants act " pending assessment of the value of his improve- ments, will not amount to a constructive eviction.* Xor will such a judgment, entered by consent of parties, have that effect/ A money judgment against the eovenantee, in an action by him against a stranger to quiet title to the land, has l>een held equiva- lent to an eviction of the eovenantee. 5 "Miller v. A very, 2 Barb. Ch. (N r . Y.) 582. Hooker v. Folsom, 4 Ind. 90. Soliuylkill & Dauphin R. Co. v. Schmoele, 57 Pa. St. 271. Park v. Bates. 12 Vt. 381 ; 36 Am. Dec. 347. in so far as it holds that a suit c-ommenoed by an adverse claimant against the grantee to recover the possession, i-* a breach of the covenant of warranty, is disapproved in Beebe v. Swart wout, 3 Oilm. (Til.) IfiS. The lessee of a right to drill oil and pas \\clK \vho \va< on joined by a grantee of the coal under the land, the prant reserving to the prantor the ripht to drill oil and pas wrlN. and \\lio eoniproini^ed the injunction by payment of a sura of money, was held not entitled to recover on the lessor's eovenant for quiet enjoyment. Chambers v. Smith. 183 Pa. St. 122; 38 Atl. Rep. W2: citinp Duff v. Wilson, fit) Pa. St. 310. "Hapler v. Simpson, 1 Busbee (N". C.), 384. Leary v. Durham, 4 Oa. 593. 'Tupple v. Hamilton. 100 Oa. 292. 3 Mason v. Kellopp, 38 Mich. 12. Lnndprcn v. Kerkow. (Xeb.) 95 N. W. Rep. 501. Vincent v. Hi.-k-. :} Ky. Law R. 8r>!i . r,t s. W. 458. Sarlln v. Beckman, 55 Ind. App. 03S ; 104 N*. E. 5!)8 ; where held, also, that the ripht to recover for the breach was not afreet ed l>y the fact that the adverse claimants would not have known of their interests but for the suit to quiet the title. COVENANTS OF WAKKANTY AND FOE, QUIET ENJOYMENT. 399 The mere endorsement of the word " cancelled " on a patent for public lands by the commissioner of the general land office fifty- five years after the patent issued, is not a constructive eviction of a person claiming title under the patent. 6 149. Hostile assertion of adverse claim. The rule that a surrender of the premises to an adverse claimant operates a con- structive eviction and a breach of the covenant of warranty is to be taken with this qualification, namely, that the surrender must have been in consequence of a hostile assertion of the rights of the adverse claimant. 7 In this respect the covenant of warranty has been distinguished from the covenant of seisin or the covenant against incumbrances. These are broken as soon as made if the title be bad, or the estate encumbered, and the purchase of an adverse claim, or an incumbrance, or surrender of the possession to the claimant, adds- nothing to the breach. 8 It has been held that a sale of the premises by the adverse claimant does not amount to a hostile assertion of his title. 9 An exception to this rule has been declared to exist where the sale is by the State while holding the paramount title. In such a case persons in possession under defec- tive titles may abandon the premises and sue for a breach of the covenant of warranty as if actually evicted. 10 It has also been held that the rule that there must have been a hostile assertion of the better title to justify a voluntary surrender of the premises, or the "Ellis v. John Crossley's Sons, 119 Fed. 779. 'Morgan v. Hannibal & St. ,T. R. Co.. 63 Mo. 129. Funk v. Creswell, 5 Clarke (Io.), 62. Fritz v. Pusey, 31 Minn. 368; IS X. W. Rep. 94. Moore v. Vail. 17 111. 185. Brown v. Corson, 16 Oreg. 388; 19 Pac. Rep. 66. Joyner v. Smith, 132 Ga. 779; 65 S. E. 68; Shaw Bros. v. Guthrie, 14 Ga. App. 303; 80 S. E. 735. As the tenant cannot dispute the title of his landlord, the covenantee is not justified in surrendering the title to his tenant. Bedell v. Christy, 62 Kans. 760; 64 Pac. Rep. 629. 'Funk v. Creswell. 5 Cl. (Iowa) 62. 9 Green v. Irving, 54 Miss. 450; 28 Am. Rep. 360. Matteson v. Vaughn, 38 Mich. 373. Loomis v. Bedel, 11 X. H. 74. In Hoy v. Taliaferro, 16 Miss. 727, it was held that a sale of the granted premises under execution against the grantor was not equivalent to an actual eviction, though the grantee aban- doned the possession after the sale. "Glenn v. Thistle, 23 Miss. 42; Green v. Irving, 54 Miss. 450: 28 Am. Rej>. 360. Brown v. Allen, 57 Hun (X. Y.), 219; 10 X. Y. Supp. 714. McGary v. Hastings, 39 Cal. 368; 2 Am. Rep. 456. Dillahunty v. Little Rock & Fort S. R. Co., (Ark.) 27 S. W. Rep. 1002; Abbott v. Rowan, 33 Ark. 593. In analogy, Schulenberg v. Harriman, 21 Wall. (U. S.) 44. 400 MARKETABLE TITLE TO REAL ESTATE. purchase of such title, does not apply where the title is outstanding in the United States. 11 A sale of the premises under a prior deed of trust or mortgage, is such hostile assertion of the paramount title as will justify the grantee in surrendering the premises. 12 So, also, the cancellation of a defective entry of the premises under the public land laws. 13 The covenantee, surrendering the possession and suing for a breach of the covenant of warranty, must not only show that the title to which he yielded had been hostilely asserted against him, but that it was in fact superior to that of the covenantor. When he surrenders or suffers the possession to pass from him without a legal contest he takes upon himself the burden of showing that the person who entered had a title paramount to that of his grantor, 14 unless the surrender was made after judgment in eject- ment against himself which the grantor was requested to defend. 1 A contrary rule would subject the defendant to much hardship, and encourage fraud and collusion on the part of the purchaser and adverse claimants. The covenantee cannot recover on the war- ranty if lie surrenders the premises to one against whom lie emild have suece-sfully pleaded the statute of limitations if he had been "Ante, 144. Kans. Pac. R. Co. v. Dtinmeyer, 19 Kans. 543. Barr v. Greelcy, 52 Fed, Rep. <)26, obiter. Herington v. Clark, 56 Kans. 644; 44 Pac. Rep. ii-J-4: Holh.way v. Milder, 84 Miss. 776; 36 So. Rep. 531. Crawford Co. Hank v. Baker. 05 Ark. 438; 130 S. W. 556; Seldon v. Jones Co., 74 Ark. 348: 83 S. \V. 778; Dillahunty v. Railway Co., 59 Ark. 699; 27 S. \V. 1002; 28 S. W. 1557. 'Mlarr v. Shaffer, 52 W. Va. 207; 43 S. E. Rep. 89. "Giddingg v. Holler, 19 Mont. 263; 48 Pac. Rep. 8. "Hamilton v. Cults, 4 Mass. 349, 353; 3 Am. Dec, 222. Greenvault v. Davis, 4 Hill (N. Y.). 643. Lamln-rt v. K-II-. W Mo. 604; 13 S. W. Rep. 284. Kreymoth v. Nelson. 84 Mo. App. 293. Snyder v. Jennings, 15 Neb. 37ii; lit N. \V. Hop. 501; Cheney v. Straulie. 35 Ncl.. 521; 53 N. \V. IN-p. 479, and 1 rope v. Chambers, 51 Tex. ITS. M,..ire v. Vail, 17 111. 190. Crane v. Colleiil.aiirh, 47 hid. 256. Brandt v. Foster, 5 Clarke (Io.), Krnik v. ( n- \\cll. .", < lurke (Io.), 62; Thomas v. Slid... .TJ Iowa. 71. MrKillip v. I'.-t. v_ Vt. MI:; ; 71 All. 78; Smith v. Ki-eh-\. 1 Hi Iowa 660: 1 _'." N. \V. ii!i. lli-in v. Hunnicutt, (Ala.) 16 So. Rep. 162. In thi.- tin- covenanter liiul incited the surrenderee to et up a claim to the promi-e-;. 11 Post, I 175. A judgment a^ain-i tin* covenantor in an action against him by the ro\onantee. is mil conclusive on the original covenantor. Mc- CrilliK v. Thoma, 85 8. W. Rep. 673; 110 Mo. App. 679 alFM. COVEA'AXTS OF \VAltKAXTY AND FOii QUIET ENJOYMENT. 401 sued in ejectment. In such a case the surrender will be regarded as having been made to one who had no title to the premises. 16 We have seen that a mere judgment in ejectment or other pos- sessory action against the covenantee is not equivalent to eviction. 17 It is sufficient, however, as a hostile assertion of the title of the adverse claimant to justify the covenantee in surrendering pos- session to him, or in buying in his claim. Xo duty devolves upon the covenantee to appeal from the judgment. 18 In several early cases it has been held that a voluntary abandon- ment of the premises by the covenantee after judgment against him in ejectment is not an eviction, 19 but they have been frequently overruled or disapproved, and are no longer regarded as authority. 20 150. Purchase of outstanding title. The purchase of a supe- rior title to the premises from a stranger by the covenantee is in effect a surrender of the possession, and a surrender of the posses- sion to him who has the better right amounts, as we have seen, to a constructive eviction from the premises. The law does not require either that the covenantee shall go through the useless ceremony of removing from the premises and immediately re-entering under his newly acquired better title, or that he should submit to an actual forcible expulsion with or without legal process in order that he may have an action on the covenant of warranty. The ouster by purchase of the superior title without actually leaving the premises is as effectual as it could be by peaceably leaving them or by suffer- ing an actual expulsion. The covenantor's interests are in no way subserved by requiring evidence of an actual dispossession of the grantee. On the contrary he is benefitted by the purchase, for thereby he is saved the expense which would be incurred by the grantee in defending the title. 21 "Britton v. Ruffin, 122 X. C. 113; 28 S. E. Rep. 963. "Ante, 148. 18 Bever v. North, 107 Ind. 545; 8 N. E. Rep. 576. Wiggins v. Fender, 132 N. C. 628; 44 N". E. Rep. 362; McCrillis v. Thomas, 85 S. W. Rep. 673, 110 Mo. App. 699, aff'd. ; Meeks v. Meeks, 5 Ga. App. 394 ; 63 S. E. 270. "Webb v. Alexander, 7 Wend. (N. Y.) 286; Lansing v. Van Alstyne, 2 Wend. (N. Y.) 563, note; Waldron v. McCarthy, 3 John?. (N. Y.) 473. "Greenvault v. Davis, 4 Hill (N. Y.), 645. See, ante, p. 396. "Loomis v. Bedel, 11 N. H. 74. Lane v. Fury, 31 Ohio St. 574, 51 402 MARKETABLE TITLE TO REAL ESTATE. Therefore it has been frequently held that the covenantee in pos- session of the estate may, to avoid an inevitable eviction, buy in the paramount title or take a lease thereunder without actual change of the possession. 22 This he may do without violating any duty which he owes to the covenantor. Accordingly, where the war- ranted premises, while in the possession of the grantee, were sold under decree of court against the grantor to a stranger, the report of sale returned to and confirmed by the court and a deed ordered to be made to the purchaser, and- the grantee, without leaving the possession, bought in the title of the purchaser under the decree, it was held that nothing more could in reason or in justice be required to show an eviction. The covenantee was not bound to wait until he was forced out of possession by an order of the court. 23 While the covenantee may buy in an outstanding right or interest in order to protect his interest, there is no obligation upon him so to do, 24 and it is no defense to an action on the covenant "Rawle Covts. (5th ed.), 142; 2 Greenl. Ev., $ 244. Barlow v. Delaney, 40 Fed. Rep. 97. McGary v. Hastings, 39 Cal. 361 ; 2 Am. Rep. 456. Amos v. Cosby, 74 Ga. 793. Davenport v. Bartlett, 9 Ala. 179; Roebuck v. Dupuy, 7 Ala. 487. Sisk v. Woodruff, 15 111. 15; MeConnell v. Downs, 48 111. 271 : Claycomb v. Munger, 51 111. 378. Mooney v. Burohard, 84 Ind. 285. Richards v. Homestead Co., 44 Iowa, 304; 24 Am. Rep. 745; Royer v. Foster, 62 Iowa, 321; Thomas v. Stickle, 32 Iowa, 76. Sprague v. Baker, 17 Mass. 586, lead- ing case; Leffingwell v. Elliot, 10 Pick. (Mass.) 204: 19 Am. Dec. 343; Esta- brook v. Smith, 6 Gray (Mass.), 577; 66 Am. Dec. 445; Kramer v. Carter, 136 Mass. 504. Petrie v. Fol/, 54 N. Y. Super. Ct. 223. King v. Kerr, 5 Ohio, 158; 22 Am. Dec. 777. Brown v. Dickerson, 12 Pa. St. 372. Austin v. McKinney, 5 Lea (Tenn.), 499. Denson v. Love, 58 Tex. 468. Haffey v. Birchetts, 11 Leigh (Va.), 83, 88. Turner v. Goodrioh. 26 Vt. 708. Potwin v. Blasher, 9 Wash. 460; 37 Pac. Rep. 710. Pritohett v. RedSck, 62 Neb. 296; 86 N. W. Rep. 1091; Craven v. Clary, 8 Kan. App. 295; 55 Pac. 679. Leet v. Gratz, 92 Mo. App. 422. Hayden v. Patterson. 39 Colo. 15; 88 Pac. 437; Morgan v. Haley, 107 Va. 331; 58 vS. E. 564; 13 L. R. A. (N. S.) 732; 122 Am. St. Rep. 846; Allen v. Miller, 99 Minn. 75; 54 So. 731; Fassler v. Streit, 100 Xeb. 722; 161 N. W. 172. Hanson v. Buckner, 4 Dana iK\. . 254. But in a case in which the granted* premises had been sold as property inherited by the grantor and liable for the debts of the ancestor, in a proceeding to which the grantee was no party, it was held that such sale was not binding on him, and hence that he was not entitled to recover, as upon a breach of warranty, the amount paid by him for a quit claim from the purchaser at such sale. Pritchard v. Smith, 107 Ky. 483; 64 8. W. Rep. 717. "Cong, of Sisters v. Jane, 110 Miss. 612; 70 So. 818. COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 403 that he knew of the outstanding right at the time he took the con- veyance and might have acquired such right for a trifling sum. 25 The purchase of the outstanding paramount title amounts to a constructive eviction, whether that title has or has not been estab- lished by judgment or decree. The covenantee simply takes the risk of an ability to show that the title so acquired is in fact supe- rior to that of the covenantor. 26 The burden is on him to show that fact. 27 A few early cases in New York and elsewhere decide that the covenant of warranty is broken only by an actual eviction, and that the purchase of an outstanding superior title, or a sur- render to the holder thereof, is insufficient to establish an evic- tion; 28 but the rule as stated prevails now, it is believed, in that State ; 29 and generally throughout the entire country. If a lessee under a defective title is disturbed by a party having a paramount title, he will not be restrained by his lease from purchasing the paramount title without the consent of his lessor, though he has not been evicted or ousted from the possession. The rule that a tenant cannot deny the title of his landlord has no application to 23 Kimball v. Saguin, (Iowa) 53 1ST. W. Rep. 116. Brawley v. Copelin, 106 Ark. 256; 153 S. W. 101. 28 Rawle Covts. for Title (5th ed.), 146. Turner v. Goodrich, 5 Deane (Vt.), 709. Walker v. Deane, 79 Mo. 664. Kramer v. Carter, 136 Mass. 504. "Copwood v. McCandless, 99 Miss. 364; 54 So. 1007. 28 Waldron v. McCarty, 3 Johns. (N. Y.) 471; Kerr v. Shaw, 13 Johns. (N. Y.) 236; Kinney v. McCulloch, 1 Sandf. Ch. (N. Y.) 370; Cowdrey v. Coit, 44 N. Y. 382; 4 Am. Rep. 690. Shelton v. Pease, 10 Mo. 482; Caldwell v. Bower, 17 Mb. 564. Hannah v. Henderson, 4 Ind. 174; Reasoner v. Edmundson, 5 Ind. 393. 29 Beyer v. Shulze, 54 N". Y. Super. Ct. 212; Petrie v. Folz, 54 N. Y. Super. Ct. 223; Bordewell v. Colie, 1 Lans. (N. Y.) 146. Wright v. Phipps, 90 Fed. 556. Rawle Covts. (5th ed.), 144, note. In Mississippi a covenantee who buys in an outstanding paramount title cannot have an action for breach of the covenant of warranty; there must have been an actual dispossession, either by actual eviction or surrender of the possession. But lie can recover from the covenantee in assumpsit the money so expended in perfecting the title, or have a decree in equity against the vendor for reimbursement, either of which accomplishes precisely the same purpose as an action for breach of the covenant of warranty. Wilty v. Hightower, 12 Sm. & M. (Miss.) 478; Dennis v. Heath, 11 Sm. & M. 206; Burruss v. Wilkinson, 31 Miss. 537; Kirk- patrick v. Miller, 50 Miss. 521; Dyer v. Britton, 53 Miss. 270; Green v. Irving, 54 Miss. 450; 28 Am. Rep. 360. MARKETABLE TITLE TO HKAL ESTATE. such a ease. 30 It is not necessary for the covenantee to show that he has actually paid the price of the outstanding title. It is sufficient if an obligation to pay, and the time and manner in which payment is to he made, appear. 31 It has been held, however, that the purchase of the outstanding title must have been made in the interest of the grantee, and against the interest of the grantor, for the purpose of extinguishing the title theretofore held by the grantee, and for the purpose of asserting the new title thus acquired against the grantor. 82 The discharge of a prior incumbrance in order to prevent an inevitable eviction, is also a constructive breach of the covenant of warranty. 33 This covenant is broken by lawful eviction, whether "Oeorge v. Putney, 4 Cush. (Mass.) 355; 50 Am. Dec. 788; Greeno y. Munson, 9 Vt. 37; 31 Am. Dec. 605. Chambers v. Pleak, 6 Dana (Ky.), 429; 32 Am. Dec. 78; Lunsford v. Turner, 5 J. J. Marsh. (Ky.) 104; 20 Am. Dec. 248. Jackson v. MeAuley. 13 Wash. 298; 43 Pae. Rep. 41. "Hooper v. Sac Co. Bank, 72 Iowa, 280; 33 X. W. Rep. 081; Rover v. Foster, 62 Iowa, 322: 17 X. W. Rep. 516. "Wright v. Phipps, 90 Fed. Rep. 556, the court saying: if it appear that grantee and grantor have defended against the claim of a third person to the land; that they have, through several years, co-operated to settle such claim; that they have agreed to share in the expense thereof, and do so share; and pursuant thereto a release of the outstanding title is made to the grantee, upon the payment of a sum bearing a slight relation to the value of the land by the grantee and grantor; it must be concluded that the release was obtained and taken by amicable arrangement, for the purpose of protecting the existing interests of the grantor as well as those of the grantee. "Kstabrook v. Smith, 6 Gray (Maas.), 557; 66 Am. Dec. 443; Whitney v. Densmore, 6 Cush. (MJws.) 128 Bernis v. Smith, 10 Met. (Mann.) 194. Collier v. Cowger, 52 Ark. 322; 12 S. W. Rep. 702. Stipe v. Stipe, 2 Head (Tenn.), 171; Kinney v. Norton, 10 Heink. (Tenn.) 388. Brown v. Dicken- Hon, 12 Pa. St. 372, disapproving Waldron v. McCarty, 3 Johns. (N. Y.) 471. Stewart v. Drake, 4 HalsL (X. J. L.) 139. Cole v. Lee, 30 Me. 392; Kelly v. Lowe, 18 Me. 244. McLean v. Webster, (Kans.) 26 Pac. Rep. 10. Brown v. Thompson, 81 S. C. 380; 62 S. K. 440; Dignan v. West, 71 W. Va. 29orn, 2 Dev. L. (X. C.) 390, this rule was carried to its furthest extent. Judgment in ejectment had been recovered against the covenantee, and before the issuing of a writ of possession, or any actual disturbance of the possession, he purchased the rights of the plaint ill" in ejectment, and it was held that this constituted no breach of the covenant of warranty. "Ante, "Covenant of Seisin," 116. Anderson v. Knox, 20 Ala. 161. Rawle Covts. (5th ed.), 192. "Id. Ante, 130. * Beyer v. Schulze, 54 N. Y. Super. Ct. 212. Richards v. Iowa Homestead Co., 44 Iowa, 304; Thomas v. Stickle, 32 Iowa, 76. Turner v. Goodrich, 26 Vt. 708. Davenport v. Bartlett, 9 Ala, 187. Sprague v. Baker, 17 Mass. 586. Funnan v. Klmore, 2 Xott i McC. (S. C.) 1S9. Allen v. Miller, 09 Miss. 7.V. 54 So. 731. In Lane v. Fury. 31 Ohio St. 574. the covenantee was compelled to proceed in equity to obtain a decree correcting a defective acknowledgment of a cf warranty. The proceeding to reform the defective deed un- treated as in substance a purchase or getting in of the outstanding title. This case stands upon nawow ground*. The covenant of warranty is against lawful claima only, and judgment having been rendered both at law and COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 407 after judgment against the covenantee in ejectment, or other pos- sessory action, which the covenantor was requested to defend. 41 The measure of damages which the purchaser may recover where he buys in the outstanding title is hereafter considered. 42 152. Loss of incorporeal hereditament. Adverse easements. The covenant of warranty extends to and embraces not only the granted premises themselves, but all rights, easements and incor- poreal hereditaments incident or appurtenant thereto, so that if the covenantee be deprived of any of these by one having law- ful right, the covenant is broken, and a right of action accrues. The early case of Mitchell v. Warner 43 decided that the covenant of warranty was not broken by the loss of an easement appurte- nant to the premises, but this decision has been frequently over- ruled, expressly or substantially, and the rule just stated may be regarded as established by the weight of authority in America. 44 If, however, at the time of the grant there is an apparent easement over adjoining lands belonging to another, not necessarily attached as an appurtenance to the land conveyed, and the grantor has no right or title to such easement, an interruption of the use thereof by the adjoining owner does not make the grantor liable for dam- ages under covenants of warranty and quiet enjoyment, although equity against the heirs of the married woman seeking to take advantage of the defective acknowledgment of her deed, it is difficult to perceive an eviction, actual or constructive, by any one having a lawful claim. 41 Post, 177. 43 Post, this chapter, 168. 41 5 Conn. 497. "Rawle Covts. (5th ed.) 152, n. Wilson v. Cochran, 46 Pa. St. 233. Kramer v. Carter, 136 Mass. 507. Adams v. Con over, 87 N. Y. 422. A cove- nant for quiet enjoyment in a deed is broken where an adjoining owner raises a dam on his land by virtue of a paramount right, to a height that causes the warranted lands to be overflowed. Scriver v. Smith, 100 N. Y. 471; 53 Am. Rep. 224, distinguishing Green v. Collins, 86 N". Y. 246; 40 Am. Rep. 531. A covenant for quiet enjoyment is as much implied in the lease of an incorporeal right as in the lease of tangible property. Mayor v. Mabie, 3 Kern. (N. Y.) 151. A perpetual injunction against the use of an easement by the grantee is equivalent to an eviction. Scheible v. Slagle, 89 Ind. 323. The use and enjoyment of the full width of a street upon which the granted premises abut is within a covenant for quiet and peaceable enjoyment of the premises and their appurtenances. Moliter v. Sheldon, 37 Kans. 246; 15 Pac. Rep. 231. 408 MARKETABLE TITLE TO REAL ESTATE. the grant was " with appurtenances." And where a right to con- struct a mill race across a lot of land is granted with warranty, the warranty is not broken by action on the part of an adjoining riparian proprietor that deprives the grantee of the right to flow water through the race. 4 * The covenants of warranty and for quiet enjoyment will also be broken if a stranger establish a right to an easement in the war- ranted premises. 47 Actual expulsion of the grantee from the whole and every part of the land is not essential to a breach of these cove- nants; it is sufficient if there is a disturbance of the free and uninterrupted use of the land by one having paramount title. 48 It is true that the existence of an adverse easement in the granted premises is a breach of the covenant against incumbrances, but it is equally a breach of the covenants of warranty and for quiet enjoy- ment. 49 Notice of the existence of the easement at the time of the Green v. Collins, 96 N. Y. 246; 40 Am. Rep. 531.' * Griswold v. Allen, 22 Conn. 89. As to whether a covenant of warranty is broken by the absence of a right in the grantee of a mill dam to flow land adjacent to the dam, see Swasey v. Brooks, 30 Vt. 692. 41 Giles v. Dugro, 1 Duer (X. Y.), 234; Scriver v. Smith, 100 N. Y. 471; 53 Am. Rep. 224. Russ v. Steele, 40 Vt. 310; Clark v. Conroe, 38 Vt. 469. Haynes v. Young, 36 Me. 557; Lamb v. Danforth, 59 Me. 322; 8 Am. Rep. 426. The existence and use of a private right of way over the granted prem- ises is a breach of the covenant of warranty. Rea v. Mlnkler. 5 Lans. (N. Y.) 196. Browning v. Canal Co., 13 La. Ann. 541. Russ v. Steole, 40 Vt. 310; Clark v. Conroe, 38 Vt. 469. Butt v. Riffe, 78 Ky. 353. The cove- nant for quiet enjoyment embraces an adverse claim to (he use of the water of a stream on the warranted premises. Peters v. Grubb, 21 Pa. St. 455. The covenant of warranty is not broken by the existence of a right in an adjoining proprietor to draw water through underground pipes from a spring on the warranted premises. McMullan v. Wooley, 2 Lans. (N. Y.) 395. Rea v. Minkler, 5 Lans. (N. Y.) 196. Runs v. Steele, 40 Vt. 310. Scott v. Tanner, (Mo. App.) 20S S. \V. 264. In Kramer v. Carter, 136 Mass. 604, the breach of the covenant of warranty complained of was the existence of a building rr-triction in a deed under which tlic plaintiff's grantor hold, by which the plaintiff was deprived of the full and complete enjoyment of the premises. Thin was held a breach of the i (> \ man) i if warranty if enforced, the court saying: "But the cn-rninit was not only an inciimbrance which worked a present breach of the covenant against incumbrances: it was also a paramount right, which might work a breach of the covenant of warranty. It \\ii- an incorporeal hereditament, a j..iii <.r .UK! taken out of the warranted premises, and annexed and appurtenant to adjoining lands, and forming a part of the estate in them. The covenant COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 409 conveyance does not affect the right of the covenantee to recover for the breach. 50 The warranty does not extend to a right to take water from an irrigating ditch or canal, unless the right is appurtenant to the land. If the right is not described in the deed as appurtenant to the land, parol evidence is admissible to determine the question. It is not so appurtenant where the water rights are represented by shares in an irrigation company which may be sold and trans- ferred independently of the land, no share of stock representing any one particular part of the land. 51 153. COVENANTS OF WARRANTY AND QUIET ENJOYMENT BUN WITH THE LAND. General rule. The covenants of war- ranty and for quiet enjoyment 52 are prospective in their operation and run with the land until they are broken; that is, they enure to the benefit of the last purchaser of the land, upon his eviction, actual or constructive, by one claiming under an adverse title. 53 of warranty extends to such a right, and the right may be so exercised as to work a breach of the covenant. * * if the plaintiff had erected a build- ing upon the land which is subject to the restriction, and the owners of the adjoining tenements had lawfully demolished it, it would have been an eviction, and equally so whether done by an act in pais, or by action at law, or by a suit in equity." "Rea v. Minkler, 5 Lans. (N. Y.) 196. "George v. Robison (Utah), 63 Pac. Rep. 810. 52 The covenant for quiet enjoyment, as a covenant running with the land, is subject to the same construction as the covenant of warranty. Henry v. McEntyre, 1 Hawk. (N. C.) , 410. Hence, whenever the latter covenant is spoken of in that respect in the following pages, it is to be understood that the covenant for quiet enjoyment is also intended. C3 Co. Litt. (Thomas' ed.) 381 n.; 4 Kent Com. 459; Platt on Covts. 304; Rawle Covt. 213; 3 Washb. Real Prop. (3d ed.) 399. Beddoe v. Wadsworth, 21 Wend. (N. Y.) 120; Ford v. Walworth, 19 Wend. (N. Y.) 334; Cunning- ham v. Knight, 1 Barb. (X. Y.) 399; Blydenburgh v. Cotheal, 1 Duer (N. Y.), 1?6. Carter v. Denman, 3 Zab. (X. J. L.) 260. Blackwell v. Atkinson, 14 Cal. 470. Brown v. Metz, 33 111. 339; 85 Am. Dec. 277; Crisfield v. Storr, 36 Md. 129; 11 Am. Rep. 480. Butler v. Barnes, 21 Atl. Rep. 419. Shelton v. Codman, 3 Cash. (Mass.) 318; Whitney v. Dinsmore, 6 Cush. (Mass.) 128. Sw&sey v. Brooks, 30 Vt. 692. Saunders v. Flaniken, 77 Tex. 664; 14 S. W. Rep. 236; Flaniken v. Xeal, 67 Tex. 629; 4 S. W. Rep. 212. Rutherford v. Montgomery, 14 Tex. Civ. App. 319; 37 S. W. Rep. 625. Meade v. Boone (Tex. Civ. App.), 35 S. W. Rep. 483. Tucker v. McArthur, 103 Ga. 409; 30 S. E. Rep. 2S3. McConaughey v. Bennett, 50 W. Va. 172; 40 S. E. Rep. 540. 52 410 MARKETABLE TITLE TO KEAL ESTATE. Hence, a purchaser is not only protected by the covenants of his immediate grantor, but, in case he loses the estate, may look for his indemnity to the covenants of those tinder whom his grantor claims, 54 and this, though the covenant of the remote grantor does not in terms warrant the title to the " assigns " of the covenantee. 55 After breach the covenant can no longer run with the land, nor have any existence except for the purpose of supporting an action for damages on the part of the person having the right of action at the time of the breach. 5 * The covenants in a void deed, for example, that of a married woman who was not examined privily and apart from her husband, do not enure to the benefit of a remote grantee ; a void conveyance cannot operate as an assignment. 57 If the grantor holds under a conveyance from a minor, his cove- nant of warranty is not broken when made by reason of the fact Wesco v. Kern (Oreg.), 59 Pao. Rep. 548. Libby v. Hutchinson, 72 N. H. 190; 55 All. 547. Mitchell v. Warner, 5 Conn. 497. Scoffm v. Grandstaff, 12 Kans. 365. .Susqueliannn Coal Co. v. Quick, 61 Pa. St. 339. Williams v. Beeman, 2 Dev. (X. C.) 483. Xunnally v. White, 3 Met. (Ky.) 584. Aaher Lumber Co. v. Cornett, 23 Ky. L. Rep. 602; 63 S. W. Rep. 974. Tn a State in which conveyances by persons out of possession are held valid, such a deed has 'been held sufficient as an assignment of the grantor's right of action on a warranty in a deed under which he claimed title. Allen v. Kennedy, 91 Mo, 324; 2 S. W. Rep. 142. Recent Cases. Kuntzman v. Smith, 77 X. J. Eq. 30; 75 Atl. 1009; Tanzer v. Bankers &c. Corp. 144 X. Y. Supp. 613; 159 App. Div. 351; Jacobs v. Fowler, 119 X. Y. Supp. 647; 135 App. Div. 713; Simonds v. Diamond Mate-It Co., 159 Mich. 241; 123 X. W. 1132; Thompson v. Richmond, 102 Me. 335; 63 Atl. 649; Williams v. O'Donnell, 225 Pa. 321; 74 Atl. 205; 26 L. R. A. (X. S.) 1094; Quick v. Walker, 125 Mo. App. 257; 102 S. W. 33; Staed v. Roasier, 157 Mo. App. 300; 137 S. W. 901; Snadon v. Salmon, 135 Ky. 47; 121 S. W. 970; Arnold v. Joines, 50 Okl. 4; 150 Par. 130; Newman v. Sevier, 134 111. App. 544. In Crawford Co. Bank v. Baker, 95 Ark. 438; 130 S. W. 556, it is said that a covenant of warranty does not run .with the land. What was meant, apparently, was that a covenant of -i'i-in. implied in a warranty deed, does not run with the land. See Arkansas cases cited ante, | 111. M Co. Litt. 384a; 2 Sugd. Vend. (8th Am. ed.) 196, 237. Beaaeley r. Phil- lips, 20 Ind. App. 182; 50 X. E. 488. "Wiggins v. Pender, 132 N. C. 628; 44 X. E. Rep. 362. MoConaughey v. Bennett, 50 W. Va. 172; 40 8. E. Rep. 640. De Long v. Improvement Co., 74 N. J. I.. 250; 66 Atl. 591. "Smith v. Ingram, 132 X. C. 959; 44 S. E. Rep. 643; 61 L. R, A. 878. COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 411 that the minor may disaffirm the deed on reaching his majority. The deed being valid unless disaffirmed within the time allowed by law, the covenant of warranty is not broken until the disaffirm- ance of the deed and eviction of the covenantee, or his assignee. Hence, the covenant enures to the benefit of a remote grantee. 58 The covenant is inseparable from the land with respect to which it is made, and passes to the grantee of the covenantee as incident to the land, and not by way of assignment separate and distinct from the conveyance. 59 Hence, the benefit of the covenant cannot be assigned separate and apart from the land ; that is, to a person not a grantee or transferee of the land. 60 The rule that a covenant does not run with the land after a breach has occurred does not apply in the case of an assignee for whose benefit the land was purchased by the covenantee, and to whom it was subsequently conveyed by the latter. In such a case the covenantee is a mere trustee to receive and hold the title and the covenants for the use of the true owner. 61 As a general rule, however, it seems that a mere equitable owner of the premises, such as one who has paid the purchase money, but has not received a conveyance, is not entitled at law to the benefit of covenants that run with the land. 62 154. Assignee may sue in his own name. The rights of an assignee of covenants running with the land are cognizable in a court of law by reason of the privity of estate existing between him and the covenantor. He may, therefore, bring an action in his own name to recover damages for a breach of the covenant. 63 This, in fact, seems to be the only substantial difference between the rights of assignees of the covenant of warranty and that of seisin in those States in which it is held that the latter covenant does not run with the land ; for there seems to be no doubt of the Tritchett v. Redick, 62 Neb. 296; 86 N". W. Rep. 1091. 59 McConaughey v. Bennett, 50 W. Va. 172; 44 S. E. Rep. 540. '"Ravenel v. Ingram, 131 1ST. C. 549; 42 S. E. Rep. 967. 81 Hall v. Plaine, 14 Ohio St. 417. Harper v. Perry, 2-8 Iowa, 57. M Dart on Vendors (5th ed.), 780. As to rights of a mortgagee, see post, 160. "Suydam v. Jones, 10 Wend. (N. Y.) 181; 25 Am. Dec. 552. McConaughey v. Bennett, 50 W. Va. 172; 40 S. E. Rep. 540; where held, also, that the assignee could not sue in a court of equity. 412 MARKETABLE TITLE TO REAL ESTATE. right of one who has been evicted by paramount title to maintain an action in the name of his grantee on a covenant of seisin con- tained in a conveyance by the latter.* 4 155. Actions against original covenantor. If the estate warranted be subdivided and pass into the hands of separate grantees, any one of the latter, or his remote assignee, if evicted, may maintain an action on the original covenant in his own name. For every eviction a separate cause of action accrues and may be enforced, though the effect be to subject the warrantor to numerous suits, and possibly to a greater liability than he would have incurred if he had been sued by the original covenantee. 65 Where a covenant running with the land is divisible in its nature, if the entire interest in the land passes by assignment to separate and distinct individuals, the covenant will attach to each parcel, pro tanto.** Whether heirs or devisees may maintain separate actions on a covenant of warranty has been made a question in a case which decides that they may maintain a joint action on the cove- nant. 67 If the warranted premises be subdivided by the grantee, and the several lots conveyed to different persons, a remote grantee of one of the lots may maintain an action on the covenant of the original grantor without joining the vendees of the other lots. In such a case the rights of the plaintiff are not affected by the fact that the other grantees have failed to sue, or have suffered their rights of action to become barred by the statute. 88 15G. Release of covenant by immediate covenantee. While a legal devolution of the title, either by deed, will or descent, is necessary to give to the owner of the land the l>enefit of the cove- "Ante, 5 110. 3 Com. Dig. 262; Dart Vend. (5th ed.) 780; 2 Co. Litt. on p. 309; 2 Washl). Real Prop, fifi'2. ritiii^ 2 Supd. Vend. (Hamm. ed.) 508. Dickinson v. HoomeK. 8 Orat. (Va.t 353. Kane v. Sanp<-r, 14 Johns. (N. Y.) 94. alo, Dougherty v. Duval. !> P>. MOM. (Ky.> 57. Field v. Squire*. Dni.ly (U. S ... :ii!fi. S,-li..tieM v. Homestead" Co., M2 Iowa. :U7. Contra, 3 Prest. Al-t. ..7. P.-rkins v. Hadlcy, 4 Hayw. (Tenn.) 14S. McClure v. Gamble, 27 Pa. St. 288. "Co. Litt. 3Sr,a: Tniii-h. 109. Astor v. Miller, 2 Paige (N. Y.), 78; Van Home v. CV.iin. 1 1'afce (X. Y.). 455. Allen v. Little. 3fi Mo. 170. : Paul v. Witman. .'< W. A 8. (Pa.) 407. "Whitnnan v. Hindi. 3 Pick. (Tenn.) 513: 11 S. \V. Rep. 421. COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 413 nant of warranty, 69 it is not by virtue of any assignment of a right of action that the subsequent grantee takes the place of the original covenantee, though he is commonly called " assignee," as a convenient designation ; for until a breach of the covenant has occurred there is no right of action and nothing to be assigned. It is because he takes the same estate and stands in the place of the original covenantee, by means of which a privity of estate is cre- ated, that he is entitled to an action against the original cove- nantor. 70 Hence, it follows that the covenantee cannot separate the covenant from the land by assigning the benefit thereof with- out transferring the land ; 71 nor can he release the covenantor from liability after he has transferred the land ; 72 though it seems that such a release will be valid, even as against an assignee, if exe- cuted by the covenantee before the land is transferred. 73 When the covenantee parts with the land he loses all control of the covenants that run with it, and can maintain no action for a breach occurring thereafter, even though it be instituted and pur- sued for the benefit of the transferee. 74 unless he has made good the breach to the party evicted. 75 9 Rawle Covt. 213. In Beardsley v. Knight, 4 Vt. 471; 33 Am. Dec. 193, it was held that possession under an instrument inoperative as a deed for want of a sufficient seal, would not entitle the intended grantee to the benefit of a covenant of warranty running with the land. "Ante, 110, 152. 4 Cruise's Dig. 316; 4 Kent Com. 472, n. It is not because of the delivery of the deed that the subsequent grantee becomes entitled to the benefit of the covenant which it contains. It is bcause he takes the estate and stands in the place of his vendor. Hopkins v. Lane, 9 Yerg. (Tenn.) 84. 71 Ely v. Hergesell, 46 Mich. 325. Lewis v. Cook, 13 Lred. L. (N. C.) 193. Lawrence v. Senter, 4 Sneed (Tenn.) 52. 78 Middlemore v. Goodale, Cro. Car. 503. Suydam v. Jones, 10 Wend. (N. Y.) 183; 25 Am. Dec. 552. Field v. Snell, 4 Cush. (Mass.) 504. Crocker v. Jewell, 29 Me. 527; Littleiield v. Getchell, 32 Me. 392. Cooper v. Gran- berry, 33 Miss. 117. Abby v. Goodrich, 3 Day (Conn.), 433; but see Clark v. Johnson, 5 Day (Conn.) 273. After the covenantee has conveyed the land he cannot release the covenantor until he has paid damages to the party evicted, thereby satisfying the claims of the latter to the benefit of the covenant. Brown v. Staples, 28 Me. 497; 48 Am. Dec. 504. Thompson v. Shattuck, 2 Met. (Mass.) 615. Chase v. Weston, 12 N. H. 413. 71 Rawle Covts. for Title, 221, 223. But see post, 162. "Griffin v. Fairbrother, 1 Fairf. (Me.) 91; Crooker v. Jewell, 29 Me. 527. "Post, 158. 414 MARKETABLE TITLE TO REAL ESTATE. 157. Release or quit claim will pass benefit of covenants. The right of a subsequent grantee to recover on the warranty of a remote grantor, is, of course, unaffected by the fact that the immediate conveyance to him, or any intermediate conveyance was without warranty, since a mere quit claim or release is as effectual to pass the rights of the original covenantee as a con- veyance with unlimited covenants for title. 78 The covenant of warranty attaches to and passes with the land without regard to the nature of the conveyance by which the transfer of the land is effected. 77 An assignee by act of the law, such as one holding 'Bac, Abr. Letter X.: 1 Co. Inst. 3S4b. Spencer's Case, 5 Coke, 17. Cum- mins v. Kennedy, 3 Litt. (Ky.) 118, 122: 14 Am. Dec. 45. This case contains an able exposition of common-law reasons for the rule stated in the text. Young v. Triplett, 5 Litt. (Ky.) 248; Hobbs v. King. 2 Met. (Ky.) 139; Hunt v. Orwig, 17 B. Mon. (Ky.) 84; 66 Am. Dec. 144; Thomas v. Bland (Ky.), 14 S. W. Rep. 955. Brown v. Staples, 26 Me. 502; 48 Am. Dec. 504. Beddoe v. Wadsworth, 21 Wend. (N. Y.) 120; Andrews v. Wolcott, 16 Barb. (X. Y.) 23; Hunt v. Amidon, 4 Hill (X. Y.), 345; 40 Am. Dec. 283; Jenks v. Quinn, 137 X. Y. 223; 33 N. E. Rep. 376. De Chauraont v. Forsyth, 2 Pa. St. 514. Gunter v. Williams, 40 Ala. 572. Hopkins v. Lane, 9 Yerg. (Tenn.) 83. Redwine v. Brown, 10 Ga, 319. Hodges v. Saunders, 17 Pick. (Mass.) 470. Scoffins v. Grandstaff, 12 Kans. 365. Saunders v. Flanniken. 77 Tex. 662; 14 S. W. Rep. 236. Walton v. Campbell, 51 Xeb. 788; 71 X. W. Rep. 737. Troxell v. Stevens, 57 Xeb. 320 r 77 X. W. Rep. 781. Ravenel v. Ingram, 131 X. C. 549; 42 S. E. Rep. 967. Pence v. Rhonemus, 58 Ind. App. 268, 108 N. E. 129; Diggs v. Henson, 181 Mo. App. 34, 163 S. W. 565. But where A., B. and C. conveyed with general warranty to D., as trustee, with power to convey with covenant only against his own acts, and D. so conveys, his grantee can maintain no action as assignee on the covenant in the deed from A., B. and C. upon eviction under a paramount title derived from A., B. and C. Abbott v. Hills (Mass.), 33 N. E. Rep. 392. The proposition in the last head note (prepared by the court) to the case of Beardsley v. Knight, 4 Vt. 471, that a subsequent grantee claiming the benefit of a covenant of warranty running with the land, must show an assignment bit deed of war- ranty, seems an obiter dictum. The action was by an assignee claiming under a quit-claim deed, and the case wa.s adjudged against him on the ground that he did not show or claim that he was ever in possession under that deed. The point that he was not entitled to mover because his assignment was by deed without warranty, does not appear to have been made. "Thus, in Hobbs v. King, 2* Met. (Ky.) 139, it was held that the conveyance of a feme covert, incompetent to bind herself by covenants of warranty, was sufficient to pa*s to her grantee the benefit of covenants contained in the con- veyance to her. And in Taylor v. Lane, 18 Tex. Civ. App. 545, it wan held that a deed by a sheriff, on foreclosure of a vendor's lien, passes the right to recover for breach of a covenant of warranty or a covenant against in- cumbrance*. COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 415 under the deed of a sheriff or a commissioner is entitled to the benefit of covenants held by the person last seised. In fact any person to whom the land and the legal title thereto passes, whether by descent, devise or conveyance, succeeds to all the rights of the covenantee, 78 except perhaps, in the single instance, of a purchaser at a tax sale. 79 It has been held that a tax deed will not pass the benefit of covenants for title, and the covenantee's right of action is not barred by his having permitted the land to be sold for taxes. 80 158. Intermediate covenantee must have been damnified. If there be several successive grantees of the land, an intermediate grantee can maintain no action for breach of the covenant unless he has been damnified; that is, unless he has been compelled to satisfy a grantee subsequent to himself for loss of the land. 81 Hence, it follows that if the intermediate grantee conveyed with- out warranty, so that no liability could devolve upon him for a 78 Shep. Touch, ch. 7, p. 572. Appowel v. Mionnoux, Moore's Rep. 97. White v. Whitney, 3 1 Met. (Mass.) 81. Streaper v. Fisher, 1 Rawle (Pa.) 155; Hurst v. Lithgrow, 2 Yeates (Pa.), 24; 1 Am. Dec. 326. White v. Presly, 54 Miss. 313. Lewis v. Cook, 13 Ired. L. 193. William's v. Burg, 9 Lea (Term.), 455. 79 Rawle Covts. (5th ed.) 213. Kingdon v. Nottle, 4 Maule & S. 53. Smith v. Perry, 26 Vt. 279. 80 Bellows v. Litchfield, 83 Iowa, 36; 48 N. W. Rep. 1062; Crum v. Cotting, 22 Iowa, 411. 81 Allen v. Little, 36 Me. 170; Fairbrother v. Griffin, to Me. 96. Thompson v. Richmond, 102 Me. 335, 64 Atl. 649. Baxter v. Ryerss, 13 Barb. (N. Y.) 267. Wheeler v. Sohier, 3 Gush. (Mass.) 219, disapproving dicta in Bickford v. Page, 2 Mass. 460, and Kane v. Sanger, 14 Johns. (N. Y.) 93. Thompson v. Sanders, 5 T. B. Mon. (Ky.) 358; Birney v. Hann, 3 A. K. Marsh. (Ky.) 322; 13 Am. Dec. 167. Hampton v. Pool, 28 Ga. 514. Jones v. Richmond (Va.), 13 S. E. Rep. 414. Clement v. Bank, M. Vt. 298; 17 Atl. Rep. 717. Hammerslough v. Hackett, 48 Kans. 700; 29 Pac. Rep. 1079. A palpable reason why an intermediate covenantee who has not been damnified, cannot sue for a breach of the covenant of warranty is, that if he were permitted to do so, it would be possible for him to speculate in the misfortunes of the covenantor without himself incurring any liability. For if he conveyed with- out warranty his grantee could have no recourse against him for indemnity, though he might himself have recovered full damages from the covenantor. A grantor who subsequently reacquires the title under foreclosure of a mort- gage which it was his duty to discharge, cannot avail himself of the title so acquired when sued on his warranty by the grantee. Crosby v. Evans (Mo. App.), 195 S. W. 514. 416 MARKETABLE TITLE TO REAL ESTATE. subsequent eviction from the premises, he can maintain no action against the original covenantor for the breach. 8 * It has been held that the acceptance of a conveyance with warranty deprived the intermediate covenantee of any right of action against the original covenantor, and confined him to his remedy upon the immediate covenant of his grantor. 83 But this decision has been overruled in the State in which it was rendered, 84 and frequently disap- proved in others, 85 and the rule established that an intermediate covenantee who has been compelled to make good the loss of the premises to a subsequent grantee, may recover against the original covenantor. 86 In order to be " damnified " it is not necessary that **Hunt v. Middles-worth, 44 Mich. 448. Cai-es cited in last note, and Kane v. Sanger, 14 Johns. (N. Y.) 89. The converse of this proposition, namely. that if the covenantee him/self conveyed with warranty he would be entitled to recover against the covenantor on the giound that he (the covenantee) was liable over to his grantee, was decided in this case. It has been, how- ever, disapproved on this point. See cases cited, n. 85 below. "Kane v. Sanger, 14 Johns. (N. Y.) 89. "Withey v. Mumford, 5 Cow. (N. Y.) 137; Suydam v. Jones, It) W.'ii.l. (X. Y.) 1S4; Preiss v. Poidevin, 19 Abb. N. Cas. (N. Y.) 123. "Williams v. Wetherbee, 1 Aik. (Vt.) 233. Wheeler v. Sohier, 3 Cush. (Mass.) 219. Redwine v. Brown, 10 Ga. 319. Hopkins v. Lane, 9 Yerg. (Tenn.) 79; Lawrence v. Senter, 4 Sneed (Tenn.), 52. Cases cited supra, n. 65 p. 412, Garlock v. Cross, 5 Cow. (N. Y.) 143; Withey v. Mumford, 5 Cow. (N. Y.) 137. Markland v. Crump, 1 Dev. & Bat. (N. C.) 94; 27 Am. Dec. 230. Mayer v. Wooten, 46 Tex. Civ. App. 327, 102 S. W. 423. In Booth v. Starr, 1 Conn. 248; 6 Am. Dec. 233, a leading case on thi- point, the court said: "The last assignee can never maintain an action on the covenant of warranty till he has been evicted. Though the title may be defective, though he may be constantly liable to be evicted. though his warrantor may be in doubtful circumstances, yet he can bring no action on the covenant till he is actually evicted, for till then there has been no breach of the covenant, no damages sustained. By a parity of reason the intermediate covenantees can have no right of action against their K.venantors till something has been done equivalent to an eviction, fir till then they have sustained no damage. As the last assignee has the election to sue all or any of the covenantors, as a recovery and satisfaction by an intermediate covenantee against a previous covenantor would bar a suit by a Mihsequent assignee, such intermediate assignee iu<:ht not to lu- allowed to sustain his action till he has satisfied the subsequent assignee; for other- wine every intermediate covenantee might sue the fir.-t covenantor; one suit would be no bar to another; they might all recover judgment and obtain satisfaction, no that a man might be liable to sundry suits for the same thing, and lie compelled to pay damages to sundry different covenantees for the name breach of covenant." COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 417 a judgment shall have been recovered against the intermediate covenantee. He may voluntarily satisfy his grantee who has been evicted, and then recover on the covenant of his grantor, taking, however, the risk of having the latter establish the superiority of his title. 87 159. Remote assignee may sue original covenantor. The last grantee or assignee may maintain simultaneous actions against each prior successive grantor who conveyed with warranty and recover a several judgment against each ; 88 but satisfaction of one of the judgments will be satisfaction of all, and may be pleaded in bar of any other action on the covenant by the same plaintiff, or by any subsequent covenantee to whom the party making satisfaction may be liable, 89 even though the judgment satisfied be less in amount than one recovered against such subse- quent covenantee by the last grantee. 90 If the land came to the 87 Herrin v. Mclntyre, 1 Hawkes (X. C. ), 410. The case of Kane v. Sanger, 14 Johns. (N. Y.) 89, in so far as it decides that the intermediate covenantee is " damnified," within the meaning of the rule stated in the text, by a loss of the right to recover the unpaid purchase money from his evicted grantee, is overruled, it is apprehended, by the case cited supra, notes 84, 85, 86, p.416. ^Rawle Covt. 214. Winders v. Sutherland, 174 X. C. 235, 93 S. E. 726; Croom v. Allen, 145 Ga. 347, 89 S. E. 199: Keys &c. Realty Co. v. Trustees, 131 N. Y. Supp. 527, 146 App. Div. 796; Big Bend Land Co. v. Hutchings, 71 Wash. 345, 128 Pac. 652. 89 King v. Kerr, 5 Ohio, 155; 22 Am. Dec. 777; Foote v. Burnett, 10 Ohio, 317; 36 Am. Dec. 90; Wilson v. Taylor, 9 Ohio St. 595; 75 Am. Dec. 488. 90 Wilson v. Taylor, 9 Ohio St. 595; 75 Am. Dec. 488. This case presented a novel question. The last grantee brought separate actions and recovered a separate judgment against three successive grantors with warranty, each judgment being for a different amount. The first grantor having satisfied the judgment against himself, which was the smallest in amount, the ques- tion arose whether such satisfaction was a bar to an action over against him by his grantee and covenantee; the second grantor, who had paid the judg- ment, larger in amount, recovered against him by the last grantee. The question was presented by demurrer to a plea of the first grantor setting up this defense in an action against him by his covenantee, the second grantor. The court, by BRINKERHOFF, C. J., said: '"The question seems to be one of first impression, and our minds are not free from difficulty in regard to it; but, on the whole, we are unanimously of opinion that the plea is good. As before remarked, Weis, the last covenantee, and who suffered damage by reason of partial eviction, was entitled to his several action against all the prior covenantors. Not only was his right of action perfect again-st all, but the same rule of damages would apply as to all; and although he could 53 418 MAKKETABLE T1TLK TO KKA1. ESTATE. party evicted through several successive conveyances with war- ranty, he is not obliged to sue first his immediate covenantor, but may maintain an action against any other of the prior grantors, and a judgment against any one of these, so long as it remains unsatisfied, will be no bar to an action against the others. 91 The measure of damages recoverable by a remote covenantee is not controlled by what he paid for the land, but is governed by the consideration received by the particular covenantor to whom he elects to look for damages for breach of the warranty. 92 The remote covenantee settling with and releasing the original covenantor without the consent or participation of the inter- mediate covenantors, thereby releases them also. 98 1GO. Mortgagee entitled to benefit of covenant of warranty. The general rule is that a mortgagee is at law entitled, as assignee, to the benefit of a covenant of warranty contained in any convey- ance under which the mortgagor claims title, so far as may be necessary to preserve unimpaired the security intended by the mortgage. 94 In equity, 95 however, and at law in such of the Amer- have but one satisfaction, yet he was clearly entitled to recover the full amount of his damages against each. If he failed to make the proper showing in order to recover the full amount of his damages against each, it was hi* own fault; and having collected and received the amount recovered against the first covenantor, who occupied the position in law of a guarantor of all the subsequent grantees, it seems to us that Weis' claim under all the cove- nants must be held satisfied; nnd that, all enforcement of the judgments against the other intermediate covenantors was wrongful and in violation of the principle that he could have hut one satisfaction." The court then sug- gested that the plaintiff had mistaken his remedy, and that he should have enjoined the collection of the judgment against himself, or have sued to recover back the money paid thereon as money had and received to his uso by the last grantee. Withey v. Mumford, 5 Cow. (N. Y.) 137; Oarlock v. Cross, 5 Cow. (N. Y.) 143. King v. Kerr, 5 Ohio, 168; 22 Am. Dec. 777. Booth v. Starr, 1 Conn. 248; Am. Dec. 233. "Penney v. Woody, (Tex. Civ. App.) 147 S. W. 872. See post ft 16. "Hollingsworth v. Mexia, 14 Tex. Civ. App. 363. 37 S. W. 455; Penney v. Woody, (Tex. Civ. App.) 147 S. W. 872. "Loekwood v. Sturdevant, 6 Conn. 373; Cross v. Robinson, 21 Conn. 387. Lloyd v. Quinby, 6 Ohio St. 262. Andrews v. Woleott, 16 Barb. (N. Y.) 21; Astor v. Miller, 2 Paige Ch. (X. Y.) 68; Varick v. Briggs. 6 Paige Ch. (N. Y.) 324. 111. Land Co. v. Boomer, 91 III. 114. Lane v. Woodruff (Kans. App.), 40 Pac. Rep. 1079. Harper v. Perry, 28 Iowa. 67; Roue v. Schaffner, 60 Iowa, 486; Devin v. Hendershott, 32 Iowa, 192. This was an action by the grantee COVENANTS OF WARRANTY AND FOB QUIET ENJOYMENT. 419 lean States as maintain the rule that a mortgage is a mere security for the payment of money and that the legal title remains in the mortgagor, 96 a purchaser from the mortgagor is treated as an assignee of the covenant, subject to the satisfaction of the mort- gage. Doubtless in those States in which the mortgagee is still treated as the holder of the legal title, the rights of the mortgagor in the covenant of warranty would not be recognized in a court of law, and he would be driven to a court of equity for relief. 97 or beneficiary in a deed of trust on a covenant of warranty contained in a conveyance to his grantee. The defense was that defendant, the covenantor, had satisfied the covenantee (grantor in the deed of trust) for the breach before action brought. There was a judgment for the defendant which wag reversed on appeal, the court holding that the covenant passed with the land to the grantee in the deed of trust and that he alone could sue for the breach. In McGoodwin v. Stephenson, 11 B. Mon. (Ky. ) 21, the covenantee mortgaged the land and was afterwards evicted; whereupon he brought an action for breach of the covenant and 1 recovered a judgment for damages. This was reversed on appeal, the court holding that the legal title and with it the right to the benefit of the covenant remained in the mortgagee, and that so long as the mortgage remained in full force and unsatisfied the mortgagor could maintain no action on the covenant. A mortgagor who remains in possession by right, or by consent of the mortgagee, may main- tain an action for breach of a covenant of warranty in the deed from his grantor. Pence v. Gabbert, 70 Mo. App. 201. (Contra, Devin v. Hendershott, 32 Iowa, 192.) 85 Dart Vendors (5th ed.), 780; Rawle Covt. 219. Wesco v. Kern (Oreg.), 59 Pac. Rep. 548. '"Davidson v. Cox, 11 Neb. 250; 9 N. W. Rep. 95. White v. Whitney, 3 Met. (Mass.) 81. DowiraR, J., in Wright v. Sperry, 21 Wis. 334. Ely v. Hergesell, 46 Mich. 325; 9 N. W. Rep. 435. 97 In Kavanagh v. Kingston, 3Q Upp. Can. Q. B. 415, and Claxton v. Gilben, 24 Upp. Can. C. B. 500, it was decided that where the purchaser of land took a conveyance with warranty from the vendor and executed a mortgage to secure the purchase money, the benefit of the covenants would at law vest in the mortgagee notwithstanding the fact that he was the party bound by them. The same result would, of course, follow in those States in which the legal title is held to be in the mortgagee. There could be no doubt how- ever, that in such a case the covenants would be enforced in equity for the benefit of the mortgagor. In Brown v. Staples, 28 Me. 497; 48 Am. Dec. 504, it was held that the covenants in the mortgage would not prevent the maintenance of an action on the covenants in the original deed. One who purchases under a foreclosure of a purchase-money mortgage, is entitled to the benefit of a covenant of warranty in the original conveyance from the mortgagee to the mortgagor. In such a case the execution of the purchase- money mortgage by the covenantee does not extinguish the covenants in the mortgagee's contemporaneous conveyance to him. Town v. Needham, 3 Paige Ch. (N. Y.) 545; 24 Am. Dec. 246. 4L!0 MARKETABLE TITLE TO REAL ESTATE. If one holding under a conveyance with warranty execute a purchase-money mortgage with like warranty, he will not be thereby estopped from maintaining an action, on the original warranty. 98 ItJl. The original covenantor must have been actually seized. It has been held in America, following an early English decision," that if one unlawfully in possession of an estate convey it with warranty against the claims of the true owner and put his grantee in }>ossessioii, a subsequent grantee could not recover at law on the warranty since no estate having passed by the original covenantor's conveyance there w r as nothing with which the covenant could run. 1 Obviously such a doctrine would destroy the usefulness of the covenant of warranty as an assurance of the title to those claiming under the covenantee, for, as a general rule, it is only in case of an eviction under a paramount title that the assignee has any occasion to call upon the covenantor for indem- nity. Accordingly the decision in question has not been followed to any important extent in America. The rule generally prevail- ing here is that if possession of the land actually passed from the covenantor to the covenantee the subsequent assignee will be entitled to the benefit of the covenant whether the original cove- nantor was rightfully or wrongfully seised of the land. 2 It is a "Hubhard v. Norton, 10 Conn. 433. Haynes v. Stevens, 11 N. H. 28. Xoke v. Awiler, Cro. Eliz. 373. This was an action on a covenant for quiet enjoyment contained in a lease brought by an assignee of the lessee against the original covenantor. Judgment was about to be entered for the plaintiff, when it was objected by Sir Edward Coke, counsel for the de- fendant, that the plaintiff could not recover without showing an eviction under a paramount title, and that, if he showed such an eviction, he estab- lished the fact that the original covenantor was wrongfully in possession and that no estate passed from him except a lease by estoppel, and consequently there was nothing with which the covenant could run so as to benefit an assignee. Judgment was entered for the defendant. Mr. Rawle says that this case has not been followed by recent decisions in England, and regrets that the decision, "which was a mere professional triumph of Sir Edward Coke upon a question of pleading, should have disturbed the courts of last resort upon both side* of the Atlantic for more than a eenfury." Rawle Covt. It 232, 23fl. citing Cuthbertson v. Irving, 4 Hurl. & Norm. 755; S. C., 1 Smith's L. Cas. 136. Nesbit v. Nesbit. Conf. Rep. (N. C.) 403; Nesbit v. Brown, 1 Dev. Eq. (N. C.) 30. BRNitlxo. J., in Martin v. Gordon. 24 Oa. 533. Wilson v. Widrnhnm. 51 Me. 5fW. Dickinson v. Hoomes, 8 Orat. (Va.) COVENANTS OF WA11KANTY AND FOR QUIET ENJOYMENT. 421 rule, however, supported by the weight of American authority, that a covenant of warranty does not enure to the benefit of an assignee unless the original covenantor was actually seized and possession passed from him to his grantee. 3 Upon a somewhat similar principle it has been held that if A. convey an easement in the lands of B. with covenants for title, a grantee of the cove- nantee could not have the benefit of the covenants, for, no land hav- ing been conveyed, the covenants could not " run with the land " in favor of the assignee. 4 If a person without any title or claim of title join in a convey- ance of land with covenants of warranty, e. g., where the husband joins with the wife in a conveyance of her land, he will of course 353; Randolph v. Kinney, 3 Rand. (Va.) 397. Wallace v. Pereles, 109 Wis. 316; 85 X. W. Rep. 371. In Beddoe v. Wadsworth, 21 Wend. (N. Y.) 120, it was held that if possession was taken under the deed and transferred by a subsequent conveyance, an action might be maintained by the last grantee upon the covenants, because such possession would carry the covenants an- nexed to the land although no title was in fact in the grantor at the time of the conveyance. Without such possession there can be no eviction, which is indispensable for laying the ground of any action upon the covenant of warranty. Moore v. Merrill, 17 N. H. 75; 43 Am. Dec. 593. One cannot be evicted if he has never had either actual or constructive possession of the premises. Matteson v. Vaughn, 38 Mich. 373. The remote grantee cannot re- cover on the warranty if he knew, at the time of the conveyance to him, that the original deed was not intended to pass the title as in the case of a deed absolute in form but in fact a mortgage. Snadon v. Salmon, 135 Ky. 47, 121 S. W. 970. * Slater v. Rawson, 1 Met. (Mass.) 455. Hacker v. Storer, 8 Gr. (Me.) 228; McConaughey v. Bennett, 50 W. Va. 172; 40 S. E. Rep. 540, and cases cited in last note. The last grantee, whose grantor was in actual possession, may sue the original grantor upon a breach of the covenant, though the latter was not in possession at the time of his conveyance. Tillotson v. Prichard, 60 Vt. 94; 14 Atl. Rep. 302. The case of Wead v. Larkin, 54 111. 489; 5 Am. Rep. 149, contains a vigorous attack upon the proposition stated in the text. In that case the land conveyed was vacant and unoccupied, and it appeared that the original covenantors had never 'been in possession. Pos- session was taken by the grantee, who reconveyed the premises to the plain- tiff, who, upon eviction, brought an action on the covenant of the original grantor. Judgment was rendered for the plaintiff, the court disapproving th decision in Slater v. Rawson, supra. As to the effect of " constructive possession " by the original covenantor, see Solberg v. Robinson, 34 S. D. 55, 147 N. W. 87. 4 Wheelock v. Thayer, 16 Pick. (Mass.) 68. Disapproved in Wilson v. Cochran, 46 Pa. St. 233. See Rawle Covts. (5th ed.) 207, n. MARKETABLE TITLE TO KEAL ESTATE. be bound upon his covenants to the grantee; but it has been held that for want of privity of estate, those covenants will not run with the laud, and that he will not be liable thereon to a remote grantee of the premises; in other words, that a covenant of war- ranty entered into jointly by one assuming to be the owner of the fee, and a stranger to the title will not run with the land as against the stranger, and will not be available in favor of a sub- sequent grantee who holds no assignment of the cause of action arising from the breach. 5 162. Assignee not affected by equities between covenantor and covenantee. The assignee cannot, except in the case of a release by the covenautee, be affected by any agreement between the covenantor and the covenantee by which the liability of the former is lessened; 6 for example, an agreement at the time of the covenant that the covenantee should pay off an incumbrance on the premises, as part of the consideration ; 7 or that the considera- tion to be paid, should be less than that expressed in the convey- ance containing the covenant. 8 Then si-cms to be no very clear reason why a release by the covenantee should be sustained as against an assignee without notice; such an act appears to be clearly within the spirit of the rule that the assignee cannot be affected by equities between the original parties of which he has notice, 9 and has born held to be within a statute providing that a Mygatt v. Coe, 124 X. Y. 212; 26 N. E. Rep. 611, distinguishing Noke v. Awder, supra. In this case the defendant joined with his wife in a convey- ance of land claimed to be hers, and warranted the title. The land passed through ini'Mii> coim-vances to the plaintiff, who was evicted hy one having title paramount -to the defendant's wife, and who thereupon brought thi> action on the covenants in the original deed executed by defendant and wife. Tin* court held that defendant (husband) being a stranger to the title, his n.int of warranty did not run with the land, and that consequently there could be no recovery against him. There was a learned di-M-nting opinion I iv KKAUI.KY. J.. with wlmm rnm-urred HAIOHT and BROWX, J.T. H. T. & C. v. \Vhit.-hoiiM-. 47 I'tah .323, 154 Pac. 1)50, L. R. Ann. 1916 D. lill. Siiy.lam v. Jones, 10 Wend. (N. Y.) 181; 25 Am. Dec. 552. Brown v. Stapl.-. -JS Me. 497; 48 Am. Dec. 504. Eveleth v. Crouch, 15 Mass. 307. Snadun v. Salmon. 135 Ky. 47, 121 S. W. 970. * Suydam v. Jones, supra. Green van It v. Davi-. I liill (N. Y.I. f.ct. 111. Land Co. v. Bonner, 91 111. 114. Hunt v. Orwig. 17 B. M.m. (Ky.) 73; 56 Am. Dec. 144. Kellogg v. Wood, 4 Paige. Ch. (N. Y.) 578. COVENANTS OF WAKKANTY AND FOR QUIET ENJOYMENT. 423 deed concerning lands, tenements and hereditaments, must be recorded in order to bind a subsequent purchaser without notice. 10 163. Covenant extinguished by reconveyance to covenantor. If the covenantee reconvey to the covenantor, or if by act of the law or otherwise the premises be again vested in the covenantor, the covenant of warranty is extinguished. 11 Thus, it has been held that if A. convey to B. with warranty, and B. then reconveys to A. with warranty, the last covenant can only protect A. against a title from or under B. subsequent to A.'s conveyance to him. If A. is evicted in consequence of a defect in the title prior to that time, he cannot recover against B. on the covenant contained in the last conveyance; his own covenant would be a complete bar to the suit. 12 But in order that the reconveyance shall extin- guish the covenant, the parties must be the same. If two grant lands with warranty and the grantee reconveys to one of the grantors with warranty, the first warranty is not thereby extinguished. 13 Neither is there a release of the covenant where the reconveyance is made in a representative capacity only. 14 Nor does a reconveyance by the grantee, by way of mortgage, to the grantor, extinguish the warranty in the original deed; the bene- fit of such covenant passes to a purchaser at a sale under the mortgage. 15 Pleading. An assignee in suing on a covenant of warranty, should set out the deed containing the covenant, declared on, and then derive title to himself through the intermediate conveyances, naming them and giving their dates, but it is not necessary that the operative parts or the formalities of the execution of such conveyances should be set forth. 16 10 Susquehanna Coal Co. v. Quick, 61 Pa. St. 339. See, also, Field v. Snell, 4 Gush. (Mass.) 50. "Co. Litt. 490a; Bac. Abr. Warranty, O.. p. 413. Goodel v. Bennett, 22 Wis. 565. Silverman v. Loomis, 104 111. 137. Carroll v. Carroll, 113 Iowa, 419; 85 N". W. Rep. 639; Green v. Edwards (Tex. Civ. App.), 39 S. W. Rep. 1005. "Kellogg v. Wood. 4 Paige Ch. (N. Y.) 614. "Bac. Abr. 451, n.; 1 Co. Inst. 393a; Prest. Touch. 201. Birney v. Hann, 3 A. K. Marsh. (Ky.) 322; 13 Am. Dec. 167. 14 Curtis v. Hawley, 85 111. App. 429. "Wiggins v. Pencler, 132 X. C. 628; 44 N". E. Rep. 362; Wesco v. Kern (Oreg.), 59 Pac. Rep. 548. "Williams v. Weatherbee, 1 Aik. (Vt.) 233. 424 MARKETABLE TITLE TO REAL ESTATE. The action by the remote covenantee is local not transitory, and will lie only in the place where the land is. 17 164. MEASURE OF DAMAGES. General rules. The measure of damages in an action against the vendor for breach of a contract for the sale of personal property is the difference between the contract price and the market price. 18 A contrary rule with respect to personal property would seriously embarrass commercial transactions by holding out a strong temptation to the seller to violate his contract, pay the purchase price in damages to the buyer, and place in his own pockets the increase in value of the goods. Such also is the rule of damages for breach of an execu- tory contract for the sale of lands where the vendor wilfully and wrongfully refuses to convey to the purchaser, or sells the estate knowing that by reason of a defective title he will not be able to perform his contract. 19 But a case in which the estate was sold and conveyed by the vendor in good faith believing his title to be good, is considered to stand upon different grounds; and if the estate be afterwards lost to the purchaser through a failure of the title, the vendor will only be liable to him in damages for the value of the land at the time the contract was made, to be meas- ured by the purchase price, without regard to the increased value of the land at the time of the loss of the estate, whether caused by a general rise in the value of lands, or by improvements placed thereon by the purchaser. This is the rule in case of a breach of an executory contract for the sale of lands; of a breach of the covenant of seisin ; 20 and of the covenants of warranty and for "Keys 4c. Realty Co. v. Trustees, 131 N. Y. Supp. 627, 146 App. Div. 796. "Sedg. Dam. p. 365. Staed v. Rossier, 157 Mo. App. 300, 137 S. W. 901. "Sedg. Dam., $ 1010. Ante, | 97. "As to executory contracts see ante, 5 90, aa to the covenant of seisin, ante, ? 116, and tlie cases cited in the following note. Except in certain of the New Kngland States the rule of damages for breach of the covenant of seisin where there has been an eviction and those of warranty and for quiet enjoyment is the same. 4 Kent Cum. 462, 465. King v. Kerr, 5 Ohio, 160: 22 Am. Dec. 77. Brandt v. Foster, 5 Iowa, 297. Cox v. Strode. 2 Bibb (Ky.). 275; 5 Am. Dec. 603. It has been deemed better to separate the caaes arising under the covenants of seisin and of warranty, and to treat the rule of clam- apeti with respect to each covenant separately, but the caws cited to the one may be considered with profit in the examination of the other. COVENAATS OF WARRANTY AND FOIl QUIET ENJOYMENT. 425 quiet enjoyment, 21 except that in certain of the New England States the covenantee is allowed the value of the estate at the 21 Field Dam. 461; Rawle Covt. 164; 1 Sedgw. Dam. 238; 2 Sutherland Dam. 280; Waite's Act. & Def. 401. Cox v. Strode, 2 Bibb (Ky.), 275; 5 Am. Dec. 603; Booker v. Bell, 3 Bibb (Ky.), 176; 6 Am. Dec. 641; Cum- mings v. Kennedy, 3 Litt. (Ky.) 125; 14 Am. Dec. 45; Pence v. Duval, 9 B. Mon. (Ky.) 48; Hanson v. Buckner, 5 Dana (Ky.), 254; 29 Am. Dec. 401; Robertson v. Lemon, 2 Bush (Ky.), 301. Stout v. Jackson, 2 Rand. (Va.) 132, where the question was for the first time directly presented in Virginia. There was an able opinion by GREEX, J., announcing the rule stated in the text, and disapproving the dicta to the contrary in Mills v. Bell, 3 Call (Va.), 322, and other early cases. COALTEB, J., dissented. The rule settled in this case remains unchanged in Virginia. Thompson v. Guthrie, 9 Leigh (Va.), 101; 33 Am. Dec. 225; Threlkeld v. Fitzhugh, 2 Leigh (Va.) 451; Jackson v. Turner, 5 Leigh (Va,), 126; Lowther v. Com., 1 Hen. & Munf. (Va.) 202; Click v. Green, 77 Va. 827. Moreland v. Metz, 24 W. Va. 137; 49 Am. Rep. 246 ; Butcher v. Peterson, 26 W. Va. 447 ; 53 Am. Rep, 89. Barnett v. Hughey (Ark.), 15 S. W. Rep. 464. Brown v. Dickerson, 12 Pa. St. 372; McClure v. Gamble, 27 Pa. St. 288 ; Cox v. Henry, 32 Pa. St. 18. Doyle v. Brundred, 189 Pa. St. 113; 14 Atl. Rep. 1107. Holmes v. Sinnickson, 3 Gr. (N. J. L.) 313; Hulse v. White, 1 Cox (X. J. L.), 173; Drake v. Baker, 34 ]ST. J. L. 360. Willson v. Willson, 5 Fost. (N. H.) 229; 57 Am. Dec. 320; Drew v. Towle, 30 N. H. 531; 64 Am. Dec. 309; Nutting v. Herbert, 35 N. H. 120. Kinney v. Watts, 14 Wend. (ST. Y.) 38; Peters v. McKeon, 4 Den. (N. Y.) 550; Hymes v. Van Cleef, 15 N. Y. Supp. 341; the head note to this case is misleading. May v. Wright, 1 Overt. (Tenn.) 385, semble; Elliott v. Thompson, 4 Humph. (Tenn.) 98; 40 Am. Dec. 630; MeGuffey v. Humes, 85 Tenn.' 26; 1 S. W. Rep. 506. Dickens v. Shepherd, 3 Murph. (N. C.) 326. Henning v. Withers, 3 Brev. (S. C.) 458; 6 Am. Dec. 589; Furman v. Elmore, 2 Nott & McC. (S. C.) 189; Lourance v. Robertson, 10 S. C. 12. Davis v. Smith, 5 Ga. 274; 47 Am. Rep. 279. A very exhaustive opinion was de- livered in this case, reviewing the doctrines of the ancient common law appli- cable to the rule stated in the text. Simpson v. Balvin, 37 Tex. 685. Kemp- ner v. Lumber Co., 20 Tex. Civ. App. 307; 49 S. W. Rep. 412. Roberts v. McFadden (Tex. Civ. App.), 74 S. W. Rep. 105. (Compare Davis v. Fair, 152 S. W. 218 and Adams v. Cox, 150 S. W. 1195, Texas cases.) Clark v. Parr, 14 Ohio, 118; 45 Am. Dec. 529; McAlpin v. Woodruff, 11 Ohio St. 120. Stebbins v. Wolf, 33 Kans. 765; 7 Pac. Rep. 542; Doom v. Curran, 52 Kans. 360; 34 Pac. Rep. 118. Dalton v. Bowker, 8 Nev. 190; Hoffman v. Bosch, 18 Nev. 360. Brandt v. Foster, 5 Iowa, 297 ; Swafford v. Whipple, 3 Gr. ( lo. ) 261; 54 Am. Dec. 498. Stark v. Olney, 3 Oreg. 88. Lloyd v. Sandusky, 203 111. 621; 68 N. E. Rep. 154. Sheets v. Andrews, 2 Bl. (Ind.) 274; Reese v. McQuilkin, 7 Ind. 450; Phillips v. Reichert, 17 Ind. 120; 79 Am. Dec. 463; Burton v. Reeds, 20 Ind. 87; Wood v. Bibbins, 58 Ind. 392; McClure v. McClure, 65 Ind. 487 ; Boatman v. Wood, 50 Ind. 403, right to interest on the purchase money. Donlon v. Evans, 40 Minn. 501 ; 42 N. W. Rep. 472, semble. Martin v. Long, 3 Mo, 391; Dunnica v. Sharp, 7 Mo. 71; Tong v. Matthews, 54 426 MAKKKTAHLE TITLE TO REAL KSTATE. time of eviction, in case of a breach of the covenant of warranty or for quiet enjoyment. 22 In those States, however, the rule of damages for a breach of the covenant of seisin is the same as that which prevails in the other States. At common law upon a loss of the estate by eviction under a paramount title, the remedy of the tenant upon the warranty of the lord of the fee was by writ 23 Mo. 437; Lambert v. Kates, 99 Mo. 604; 13 S. W. Rep. 284. Blossom v. Knox, 3 Pinney (Wis.) , 262 (3 Chanel. 295) ; Conrad v. Trustees, 64 Wis. 258; 2."> X. VV. Rep. 24. Griffin v. Reynolds, 17 How. (U. S.) 609; Patrick v. Leach, 1 McCrary (U. S.), 250. Cheney v. Straube, 35 Nebr. 521 ; 53 N. W. Rep. 479. Holmes v. Sinnickson (Nebr.), 100 N. W. Rep. 417. West Coast Mfg. Co. v. West Coast Imp. Co., 31 Wash. 610; 72 Pac. Rep. 455. The following obser- vations by CABB, J., in Threlkeld v. Fitzhugh, 2 Leigh (Va.), 461, are a forcible example of the arguments employed by those who maintain that the evicted purchaser is not entitled to damages for the increased value of the estate: "When land is sold the existing state of things, the present value and situation of the land, are the subjects in the minds of the parties; it t this land as it now is that is bought and sold and warranted. It is most natural then to suppose that the parties mean that the purchase money, the standard of value to which they have both agreed in the sale, shall be the measure of compensation if the land be lost. They seldom look into futurity to speculate upon the chances of a rise or fall in value. If they did the views of buyer and seller would probably be very different; and, whatever they might be, could form no part of the contract, nor enter into its con- ^truetinn. What is it that the seller warrants? the land itself. Does thi> warranty, either by force of its terms or by the intention of the parties, ex- tend to any future value which the lands may reach when they have become the site of a populous city, are covered with expensive buildings, or mines of j:"l(l have been found in their bowels? Such a state of things was probably not dreamed of. And how can these subsequent accessions be the subject of a warranty made when they had no existence, nor \\en- even in the contempla- tion of the parties." Recent Cases: Allinder v. Bessemer Co., 164 Ala. 275, 51 So. 234; McCormick v. Marcy, 165 Cal. 386, 132 Pac. 409; Taylor v. Allen, 131 Ga. 41f,. K-> S. K. 291; Maiizy v. Flint. 42 Ind. App. 380, 83 X. K. 757; Boi> v. Toffeei.. l.'is Inwn 7.l. 1 3S X. W. s.'i7 ; Sullivan v. Hill, 33 K>. L. K. !>H2. 112 S. W. 5(54: Brooks v. Mohl, 104 Minn. 404. 116 X. W. 031. 121 Am. St. Rep. 629, 17 L. R. A. (N. S.) 1196; Allen v. Miller, 99 Mi~. 7.1 . 7U; Withers v. Bank, 104 Miss. 681, 61 So. 690; Coleman v. Luck- liBgcr, -JJ4 M... 1. lj:i S. W. Ill : 26 L. R. A. (X. S.) 934; Quick v. Walker. \lo. App. 2.~.7. lii-J S. W. 33; Mereh. Xat. Bank v. Ot.i,,. li J \. M 17.-, I';,,-. 7*1: Hunt v. Hay, 214 N. Y. 578, 108 X. K. Ml) Campbell v. Bentley, 11 : N. V "Mipp. '.'_'. !.">! App. Div. f>-_'2 : Ariml.l v. .loinc-, 50 Okl. 4, 150 Piic. 130; 1-olk N. (lialiam. S2 S. C. 66, 62 S. K. 110(! ; Fi.l. Lumber Co. v. Kuin-. ( l.\. < iv. \pp.i 2nl S. \V. 11C,:?; Wiggins v. Stephens, (Tex. Ctv. App.) 191 S. W. 777; Irwin v. Maple. 252 Fed. 10, 164 C. C. A. 122. "Post, | 165. JJI COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 427 of warrantia chartce in which he had restitution of other lands to the amount of those which he had lost. Damages were hot recov- erable, unless the warrantor were unable to make restitution in kind, and then the warrantee was allowed nothing for improve- ments or for the increased value of the land. 23 By the civil law the vendor, whether with or without fault, is bound to indemnify the purchaser to the full extent of his loss, which, of course, includes improvements and the increased value. 2 * An apparent exception to the rule that the measure of damages for a breach of the covenant of warranty is the value of the land at the time of the conveyance exists where the covenant of warranty is con- tained in a mortgage or deed of trust to secure the payment of a debt. In such a case the value of the land at the time of the eviction is the measure of the covenantee's damages, provided that value do not exceed the amount of the debt secured. 25 It is obvious, however, that in such a case the debt secured is, for this purpose, treated as the equivalent of a price paid for the land. If the transaction between the grantor and the grantee consisted of an exchange of lands, the agreed value, or if none, the market value of the lands given in exchange, is the measure of damages on evic- tion from the lands received in exchange. 26 M Gore v. Brazier, 3 Mass. 523; 3 Am. Dec. 182. 24 Hale v. New Orleans, IS La, Ann. 321. 25 Thus, in Haffey v. Birchetfcs, 11 Leigh (Va.), 89, a distinction was drawn between a breach of a covenant of warranty contained in a deed of bargain and sale and such a covenant in a deed of trust to secure a debt, the court holding that in the latter case the measure of damages was the value of the premises at the time of the eviction. " In case of a sale the measure is the value at the time of the sale, and the test of this value is the purchase money. But in the case of an incumbrance this principle can have no application, for price is not a subject of adjustment in the treaty for a security. Ade- quacy is alone inquired into. The true measure of damages, therefore, in case of eviction by superior title, is the value of the mortgaged or trust subject at the time of eviction, provided it do not exceed the amount of the debt secured, for it is obvious that the creditor can never be damaged to a greater amount than that." Thus, if the land at the time of the execution of the deed of trust was of the value of $1,000, the debt secured was $2,000, and the land had increased in value to $2,000 at the time of the eviction, the bene- ficiary would be entitled to the sum of $2,000 as damages. There is no in- justice in this result, the covenantor being liable for the whole $2,000 at all events. "Looney v. Reeves, 5 Kans. App. 279; 48 Pac. Rep. 606. 4'2S MARKETABLE TITLE TO KKAl. ESTATE. It is to be observed that the rule generally prevailing through- out the United States, denies to the covenantee upon a breach of any of the covenants for title, any recovery in damages for the increased value of the land, whether arising from extrinsic causes, or resulting from the labor and skill of the covenantee, and the improvements which he may have placed on the land. The rule is rested largely iipon the presumed intention of the parties. 27 They contract with reference to the present value of the estate, and if the covenantee has any apprehensions as to the title and the safety of his bargain, he should require special covenants to protect himself from loss. 28 The apparent hardship of the rule is lessened by several considerations. Thus, if the covenantee knew the title was bad, he took the risk of losing his improvements, 29 and if he forebore an examination and remained ignorant of the state of the title, it was his own fault and calls for an application of the maxim that where one of two innocent parties must suffer a loss, he whose negligence made the loss possible must bear it. And again, in many if not all of the States, there are statutes that give to the evicted covenantee the right to an allowance for the value of his permanent improvements as against the successful claimant of the premises. 80 "Phillips v. Smith, Car. Law Rep. (X. C.) 475; 6 Am. Dec. 542, where it was said that nothing could l>e more unreasonable than to compute the dam- ages in a manner not contemplated by the parties at the time of the contract, and which, if foreseen, would have broken off their negotiations. The cove- nantor is not compelled to pay a greater amount than the consideration paid to him, because he is held to have contracted with reference to that value, and the question is one of intention. Lourance v. Robertson, 10 S. C. 19; Ware v. Weatherell, 2 McC. (S. C.) 415. ""If the vendee does not choose to rely on the common covenants, but to l>e secured also for the increase in value of the land and any improvements be may put on it, let him insist on particular covenants expressly guaran- teeing to him such increase and improvements." CARR. J., in Threlkold- v. Kit/.hugh, 3 Leigh (Va.), 462. BHOXSON, J., in Kelly v. Dutch Church, 2 Hill (N. Y.), 116. In Xesbit v. Brown, 1 Dev. Eq. (N. C.) 30, it was held that a covenant to pay in case of eviction double the purchase money, and also all damages thence accruing, was a penalty and not stipulated damages, and that the purchase money and interest only could l>e recovered. There is nothing in the case, however, to show that the parties may not stipulate for actual damages sustained in excess of the purchase money and interest. Conrad T. Trustees, 04 Win. 258; 25 X. \V. Rep. 24. "In Cox v. Strode. 2 Bibb (Ky.), 278; 5 Am. Dec. 60.1. it was Raid by the COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 429 If the covenantor was guilty of fraud in the procurement and execution of the contract of sale, and the fraud shall not have been waived by the acceptance of a conveyance and covenants for title with knowledge thereof, the covenantee may in a special action on the case for the deceit, recover damages to the full extent of any loss he may have sustained, including the value of his improve- ments and the increased value of the land. 31 In the action of covenant, which sounds altogether in contract, the plaintiff cannot introduce evidence of fraud on the part of the vendor for the purpose of aggravating the damages. 32 The value or purchase price agreed upon by the parties is the measure of damages and not the value of the lands at the time of the conveyance. The execution of the conveyance may for many reasons be postponed or omitted until long after the contract has court on this point: "So far as the increase of value has been the effect of improvements made by the purchaser, he ought to be remunerated, but jus- tice requires that this remuneration should be made by the successful claim- ant, for nemo debet locupletari aliena jactura is a maxim of universal jus- tice adopted and' enforced by our law. If the purchaser came within the statute concerning occupying claimants, the legislature has provided such a compensation to be made by the successful claimant as they deem just. * * * If he wilfully or supinely neglects to pursue the remedy which the law has given against the successful claimant, he ought to abide the loss, and not be permitted to found upon his own negligence, a claim to an additional compensation against the seller." 31 Bender v. Fromberger, 4 Call. (Pa.) 444. The measure of damages, where the grantor pointed out incorrect boundaries, inclosing more land than lie actually owned and conveyed, is the difference between the value of the land actually conveyed, and of that inclosed by the boundaries pointed out, without regard to the contract price. King v. Bressie (Tex. Civ. App.), 32 S. W. Rep. 729. 32 2 Bl. Com. 166; Rawle Covt. 159. Carvill v. Jacks, 43 Ark. 439. But see May v. Wright, 1 Overt. (Tenn.) 390, an action on a covenant of war- ranty in which it was said that if the jury found that the covenantor when he sold knew that he had no title to the land, it was a fraud, and that the jury might give such damages as they thought would make the covenantee whole. See also, Eaton v. Hopkins, (Fla.) 71 So. 922. In Madden v. Land Co., 16 Idaho 59, 100 Pac. 358, 21 L. R. A. (N. S.) 332, it was held that the grantor was guilty of constructive fraud in executing a second conveyance of the land to an innocent purchaser, and that the first grantee was entitled to recover for the loss of his bargain, though he failed to protect himself by promptly putting his deed on record. 430 MAKKKTABLK TITLE TO 3EAL ESTATE. been completed by the purchaser, but the delay in that respect will not entitle him to a larger measure of damages. 33 In an action on the warranty, plaintiff cannot be required to prove that the land was of the value that he paid for it.* 4 Xominal damages only for a breach of the covenant of war- ranty can be recovered against one who conveyed the land without consideration, as between the original parties. 35 Thus, one to whom the land had been conveyed by direction of the purchaser, to secure the grantee for money loaned to the purchaser with which to pay the purchase price, and who, after repayment of the loan, recon- veyed to the purchaser with covenant of general warranty, was held liable for nominal damages only upon the eviction of the purchaser by an adverse claimant. 36 It has been held, however, in a case in which a money consideration was stated in the deed, the real consideration being love and affection, that the damage* for a breach of the covenant of warranty must be measured by the consideration stated. 37 And where the consideration was paid in stock of a fictitious value, the actual value of the stock on the day of sale was held to be the measure of the covenantee's damages. 38 The grantor is not relieved from liability on his covenant of war- ranty by the fact that ho received only a part of the consideration, "But see Cummins v. Kennedy, 3 Litt. (Ky.) 125; 14 Am. Dec. 45, the court saying: "The general rule settled by a current of authorities is, that as the conveyance completes the sale, the value of the land conveyed, at the date of the conveyance, with interest and costs, forms the criterion of dam- ages; and also that the price stipulated is the best evidence of that value. And where the parties have shown that price in the conveyance it would not perhaps be going too far to say that they ought to be concluded by it. Hence, if tin- consideration was paid long before the date of the deed, still if it is expressed, it would fix the criterion, though the land when conveyed had greatly risen in value." 44 Roberts v. Mk>Fadden, 32 Tex. Civ. App. 47, 74 8. W. 105; Coleman v. Luetcke (Tex. Civ. App.) 164 S. W. 1117. *\Wst v. W-st, 76 N. C. 45. One to whom a deed, absolute on its face, is executed as collateral security for a debt due to a third person, is put upon notice of the character of the transaction by the recital of the consideration, and cannot recover as a buna fide purchaser on a warranty contained in the deed. He is bound to know that he has received such consideration u it stated in the dred. Parke v. Chadwick, 8 W. & 8. (Pa.) 96. *Wet v. West, 76 N. C. 45. "Hanson v. Huckner, 4 Dana (Ky.), 254; 29 Am. Dec. 401. "McOuffey v. Humes, 85 Tenn. 26; 1 8. W. Rep. 506. COVENANTS OF WARRANTY AND FOE QUIET ENJOYMENT. 431 and that the other part went to a third person, who acted as his agent for the sale of the premises. 39 If a valuable consideration be in fact paid, the grantor will be liable upon his warranty with- out regard to the parties receiving the consideration, or the manner of its appropriation. 40 And the fact that the grantor bought the premises and, for the same consideration that he paid, conveyed them to the grantee at the request of third persons, for a particular purpose, will not relieve him from liability on his covenant. If a third person chooses to execute a covenant of warranty under such circumstances, he must abide the consequences. 41 The fact that the land was bought for a particular purpose known, to the vendor can make no difference in respect to the measure of damages for a breach of the covenant of warranty. 42 The covenantor may show in mitigation of damages that a tract of land to which he had no title was by mistake included in the conveyance by him. 43 Also, that the covenantee has received from the adverse claimant by way of refund, taxes, penalties, etc., charges upon the land paid by the covenantor, which he would have been entitled to recover from such claimant. 44 In some cases it has been held that damages for a breach of covenants for title must be assessed according to the law of the place where the granted premises lie ; 45 in others, according to the rule in force in the State in which the action is brought ; 46 and in others, accord- ing to the law of the place where the contract was made. 47 The last would seem to be the better rule, at least more just and equitable in its results, since it is a fair presumption that the 39 Rash v. Jenne (Oreg.), 37 Pac. Rep. 538. 40 Bloom v. Wolfe, 50 Iowa, 286. "Whatley v. Patten (Tex. Civ. App.), 31 S. W. Rep. 60. 41 Phillips v. Reichert, 17 Ind. 120; 79 Am. Dec. 463. Dimmick v. Lock- wood, 10 Wend. (N. Y.) 142. 43 Leland v. Stone, 10 Mass. 459. "Dah'forth v. Smith, 41 Kans. 146; 21 Pac. Rep. 168; Stebbins v. Wolf, 33 Kans. 765; 7 Pac. Rep. 542. 45 Tillotson v. Pritchard, 60 Vt. 94; 14 Atl. Rep. 302. Succession of Cas- sidy, 40 La. Ann. 827 ; 5 So. Rep. 292. ^Xichols v. Walter, 8 Mass. 243; Smith v. Strong, 14 Pick. (Mass.) 128. 47 Aiken v. McDonald, (So. Car.) 20 S. E. Rep. 796. Looney v. Reeves, 5 Kans. App. 279; 48 Pac. Rep. 606. 432 MARKETABLE TITLE TO REAL ESTATE. parties contracted with reference to the law of the place where the contract was made. In a case in which the grantor and a third person executed an instrument obliging themselves to satisfy any incumbrances ujxm the land, and the grantee was evicted under an incumbranee which they neglected to satisfy, it was held that his measure of damages was the value of the land at the time of the eviction. " This," said the court, " is not a covenant as to the state of the title, but an agreement to do certain acts for the plaintiff's benefit within a specified time. For the breach of such an executory contract, we know no reason why the plaintiff should not be allowed to recover such damages as are the necessary, natural and proximate result of the breach complained of." The failure of the grantee to take possession of the estate and I>erfeet the title by adverse possession, will not relieve the grantor from liability upon his warranty. 4 ' The grantee, of course, may show, in mitigation of damages, that before the trial he had acquired the outstanding title, and that the same, by virtue of his warranty, enured to the benefit of the grantee. 60 In the case of an exchange of lands, the measure of damages for breach of the covenant of warranty is the value of the land conveyed in exchange by the covenantee. 51 It will l>e seen in a subsequent chapter of this work that a grantee with warranty may, when sued for the purchase money, set up a breach of the warranty as a defense." So, conversely, in an action by the grantee on the warranty the covenantor may set off the unpaid purchase money against the plaintiffs demand." The plaintiff cannot have substantial damages unless he proves ^Manahan v. Smith, 10 Ohio St. 384. "Graham v. Dyer (Ky.), 29 S. W. Rep. 346 (not officially reported). "Looney v. Reeves. 5 Kan. App. 279; 48 Par, Rep. 406. "Wiggins v. Stephens, (Tex. Civ. App.) 191 S. W. 777. Sec ante,' f 92, and post, | 167. Tost, ch. 16. "Beecher v. Baldwin, 55 Conn. 419; 12 Atl. Rep. 401. The court said that the grantee, in claiming -ul.-iant ial damages, proceeded upon the theory that -In- might require the vendor to make the title good, in which event -lie would lie obligated to pay the purchase money. COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 433 the amount he paid for the land. But if he proves a breach of the warranty he is entitled, at least, to nominal damages. 64 165. Rule in New England States. In the States of Massa- chusetts, 55 Maine, 56 Vermont, 67 Connecticut, 58 and Alabama, 69 the covenantee is permitted to measure his damages upon a breach of the covenant of warranty, by the value of the land at the time of his eviction. The distinction which they make between the cove- nant of warranty and the covenant of seisin is that the latter covenant is broken as soon as made if the covenantor have no title, while the covenant of warranty is not broken until eviction under title paramount; and that the parties intend that the damages shall be measured by the value of the land at the time when the covenant is broken. 60 If the eviction is constructive, as where the M Groom v. Allen, 146 Ga. 347, 89 S. E. 199. 55 Gore v. Brazier, 3 Mass. 543; 3 Am. Dec. 182. This is the leading case in Massachusetts. White v. Whitney, 3 Met. (Mass.) 89; Cecconi v. Hodden, 147 Mass. 164; 16 N. E. Eep. 749. In this case the covenantee was allowed for improvements made by him after the suit in which he was evicted had been begun, the improvements having been made in good faith. 64 Swett v. Patrick, 12 Me. 1 ; Hardy v. Nelson, 27 Me. 525 ; Elder v. True, 32 Me. 104. "Keeler v. Wood, 30 Vt. 242; Farwell v. Bean, 82 Vt. 172, 72 Atl. 731; Drury v. Shumway, 1 D. Chip. (Vt.) 110; 1 Am. Dec. 704. In, this case it was also held that any amount the covenantee may have recovered from the successful claimant for improvements must be deducted from the damages. In Park v. Bates, 12 Vt. 387; 36 Am. Dec. 347, it was said by the court that none of the ruinous consequences attributed to the rule measuring the dam- ages by the value of the land at the time of the eviction had been experienced in that State. ^Horsford v. Wright, Kirby (Conn.), 3; 1 Am. Dec. 8. This is one of the earliest cases upon the point. It merely announces the rule without dis- cussing the reasons upon which it is founded. Mitchell v. Hazen, 4 Conn. 516; 10 Am. Dec. 169; Stirling v. Peet, 14 Conn. 245; Butler v. Barnes, 61 Conn. 399 ; 24 Atl. Rep. 328. 59 Wilder v. Tatum (Ala.), 73 So. 833. The rule measuring the damages by the value of the land at the time of the eviction was recognized in Virginia at an early date, though not expressly adopted. Mills v. Bell, 3 Call (Va.), 320, obiter, a case of executory contract. TUCKER, J., in Nelson v. Matthews, 2 Hen. & Munf. (Va.) 164; 3 Am. Dec. 620.- These dicta have all been disapproved 1 in later cases. See ante, n. 21, p. 425. Damages for the value at the time of eviction were also allowed or the rule approved in Guerard v. Rivers, 1 Bay (S. C.), 263, and Liber v. Par- sons, 1 Bay ( S. C. ) , 19, but these cases were overruled by Furman v. Elmore, 2 Nott & McC. (S. C.) 189. The consideration money with interest has since 55 434 MARKETABLE TITLE TO HEAL ESTATE. coveiiantee is unable to get possession of the land by ejectment brought for that purpose, the value of the land at the time the action of ejectment was decided against the plaintiff, is the meas- ure of his damages. 11 An exception to the Xew England rule giving damages for the value of the land at the time of eviction, is made in a case where the eviction results from the enforcement of a mortgage or other lien, and in which the covenantee has the privilege of redeeming the land by discharging the incumbrance and the costs of suit. In such a case the measure of his damages is the amount required to redeem the land. 62 Were this not so the covenantee might recover the full value of the estate as damages, and then repossess himself of the estate by redeeming it with a much smaller sum of money. The New England rule as to the measure of damages has been pronounced unsound and has been vigorously assailed both by text writers and by the courts of other States. 63 The reasons which been made by statute the rule of damages. Acts 1824, p. 24; Earle v. Middle- ton, Cheves (S. C.), 127. In Clark v. Whitehead, 47 Ga. 516, it seems that under the statutory law of that State the grantee was held entitled to dam- ages for the value of the land at the time of trial of the action for broach of covenant. In Jones v. Shay, 72 Iowa, 237; 33 N. W. Rep. 650, it was held error to award damages in excess of the purchase money, unless the plaintiff averred and proved an increase in the value of the premises. Park v. Bates, 12 Vt. 381 ; 36 Am. Dec, 347. "Tuft v. Adams, 8 Pick. (Mass.) 549; White v. Whitney, 3 Met. (Mass.) 89; Thayer v. Clemence, 22 Pick. (Mass.) 490. Compare Lloyd v. Quimby, 5 Ohio St. 262. "See the cases cited ante, note 21 p. 425. Rawle Covt. 165. The learned writer says: "A vendor when making them (the covenants) never dreams of such an enlarged liability by reason of his purchaser's improvements; and on the other hand the latter takes the title for what it i-* worth at the time; he makes, by his contract, the purchase money the measure of the value of the title, and takes security by means of covenants in that amount and no more. * * * The practical application of the rule that the damages are nn a- ured by the value at the time of eviction may, moreover, work injustice in cases where the property may have depreciated in value, and in particular where that depreciation may have been owing to the neglect or other fault of the purchaser. In case he has received a covenant for -i-i-in and a cov- enant for quiet enjoyment, he can of course sue upon either, or if he sue upon both he is allowed to have judgment entered upon either. If the property is less valuable than when he purchased it, he elects to enter judgment upon the nant for seisin and receives the consideration money, which is far more COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 435 they urge against the rule seem conclusive. The decisions sup- porting that rule appear to have been founded more upon precedent and ancient usage, than upon any presumed intention of the parties, with respect to the measure of recovery upon the covenant. 64 It is not to be denied, however, that the rule limiting the damages to the consideration money will in some cases result in hardship and injustice. That rule has been adopted, not as a complete solvent of the rights of the parties in all cases, but as the best that could be devised having regard to the difficulties of the subject, and as the least calculated to produce inequitable results. 65 166. Assignee's measure of damages. If the action on the covenant of warranty be by an assignee of the covenantee, and the consideration paid for the land by the plaintiff was less than that paid to the covenantor ; that is, the original purchase money, it has been held that the plaintiff can recover as damages only the purchase price which he paid. 66 There are cases, however, which than the property is then worth. If, however, it has increased in value, judg- ment is entered on the covenant for quiet enjoyment." In Ware v. Weatherall, 2 MlcC. ( S. C. ) 246, it was said by COLCOCK, J. : " It sounds well to say that if a man be deprived of a thousand dollars worth of improvements by a defect in his title, he who sold should be compelled to make it up. But I ask if it is not increasing the calamities of life to make men answerable for that which the most consummate wisdom and incorruptible integrity cannot guard against." 64 See the remarks of PARSONS, C. J., in Gore v. Brazier, 3 Mass. 545, 546; 3 Am. Dec. 182. * 5 Staats v. Ten Eyck, 3 Caines (N. Y.), Ill; 2 Am. Dec. 254, where it was said by KENT, C. J. : " To find a rule of damages in a case like this is a work of difficulty; none will be entirely free from objection or will not at times work injustice." McAlpin v. Woodruff, 11 Ohio St. 130. ^Mette v. Dow, 9 Lea (Tenn.), 99. In this case the court, by COOPER, J., lucidly observed: "The covenant (warranty) is a peculiar one, and not like an ordinary covenant for so much money. It is rather in the nature of a bond with a fixed sum as a penalty, the recovery on which will be satisfied by the payment of the actual damages. Each vendor subject to this rule may be treated as the principal obligor to his immediate vendee, and 1 as the surety of any subsequent vendee to hold him harmless by reason of the failure of title; and the ultimate vendee when evicted is entitled to be subrogated to the rights of his immediate vendor against a remote vendor to the extent necessary to indemnify him. Such a vendee, to use the language of the Supreme Court of North Carolina, sues a remote vendor on the covenant to redress his, the plaintiff's own injuries, not the injuries of the immediate 436 MARKETABLE TITLE TO REAL ESTATE. adopt the contrary view, holding that the value of the premises is conclusively fixed by the price paid to the original covenantor, and that the remote grantee is entitled to recover that amount. 67 But if he paid more than the original purchase money, he cannot recover the excess on the original covenantor's warranty. The measure of damages for which the covenantor is liable cannot be increased by a transfer of the land. 68 167. True consideration may be shown. The consideration stated in the conveyance is prima facie evidence of the purchase price of the land. But parol evidence is admissible to show the true consideration, whether it be greater or less than- -that recited in the deed." It has been said that the only operation of the con- vendee of Ruch remote vendor. Accordingly, that court held, in a case like the one before us, that the measure of damages was the consideration paid by the plaintiff to his immediate vendor, with interest, and not the considera- tion paid by such vendor to the defendant. In other words, the damage* recovered were limited to the actual injury sustained. Williams v. Beeman, 4 Dev. (X. C.) 483." Phillips v. Smith, 1 Car. Law Rep. 475. Whitzman v. Hirsh, 3 Pick. (Tenn.) 513; 11 fi. W. Rep. 421. Moore v. Franken field, 25 Minn. 540. In Aiken v. McDonald, (So. Car.) 20 S. E. Rep. 796, the greater part of an estate in the premises for the life of another had been enjoyed by the original covenantor, but the value of the entire life estate was, nevertheless, deducted from the assignee's damages. In Solberg v. Robinson, 34 S. D. 55, 147 N. W. 87, it was held that a -remote grantee was entitled to recover interest on his damages from the time his " constructive possession " was disturbed by notice of a superior title. * Brooks v. Black, 68 Miss. 61; 9 So. Rep. 332. Lourence v. Robertson. 10 So. Car. 8. Mischke v. Baughn, 52 Iowa, 528; 3 N. W. Rep. 543; Dougherty v. Duval, 9 B. Mon. (Ky.) 57. Hollingsworth v. Mexia. 14 Tex. Civ. App! 363; 37 S. W. Rep. 455; Lewis v. Ross, 95 Tex. 358; 67 S. W. Rep. 405. Dickson v. Desire, 23 Mo. 166. Crisfleld v. Storr, 36 Md. 150; 11 Am. Rep. 4SO. Rogers v. Golson, (Tex. Civ. App.) 31 S. W. Rep. 200. Taylor T. Wallace, (Colo.) 37 Pac. Rep. 962. Hunt v. Hay, 140 N. Y. Supp. 1070. 156 App. Div. 138. Where the purchaser resold the premises and directed the conveyance to be made to the pub-purchaser, which ws done, and the Mib-purchaser was evicted, it was held that the measure of his damages agninst the grantor was the price paid by him (plaintiff, sub-purchaser) to the original purchaser, ami not that which the latter was to pay to the grantor. Cook v. CuYtis, 68 Mich. 611; 36 N. W. Rep. 602. Bingham v. Weiderwax, 1 Comst. (N T . Y.) 509; McRoa v. Purmont, 16 Wend. (N. Y.) 460; Shepherd v. Little, 14 Johns. (N. Y.) 210: Petrie v. Folz, 54 N. Y. Super. Ct. 223, 229. Morse v. Shattuck, 4 N. H. 229; 17 Am. Dec. 419; Nutting v. Herbert, 36 N. H. 127; Estabrook v. Smith, 6 Gray (Mass.) 572; 66 Am. Dec. 443. Moore v. McKie, 5 Sm. A M. (Miss.) 238. COVENANTS OF WAEKANTY AND FOR QUIET ENJOYMENT. 437 sideration clause is to prevent a resulting trust in the grantor and to estop him to deny the deed for the uses therein mentioned. 70 Evidence of a secret understanding between the covenantor and the covenantee, by which the liability of the former upon the covenant is lessened, cannot, however, be received as against an assignee of the covenant, that is, a subsequent purchaser from the covenantee. 71 If no consideration be expressed in the deed, extrin- sic evidence may, of course, be resorted to for the purpose of showing the purchase price. 72 If the consideration cannot be ascer- tained, the value of the land at the time of the conveyance, with interest, will be the measure of damages. 73 But parol evidence Swafford v. Whipple, 3 Gr. (lo.) 261; 54 Am. Dec. 49S; Williamson v. Test, M Iowa, 138; Wachendorf v. Lancaster, 66 Iowa, 458; 23 N". W. Rep. 922. Barrett v. Hughey, (Ark.) 15 S. W. Rep. 464. Garrett v. Stuart, 1 McCord (S. C.), 514. Devine v. Lewis (Minn.), 35 N. W. Rep. 711. G.uinotte v. Choteau, 34 Mo. 154; Henderson v. Henderson, 13 Mo. 151. Wilson v. Shelton, 9 Leigh (Va.), 342. Holmes v. Seaman (Neb.), 100 N. W. Rep. 417; Lloyd v. Sandusky, 95 111. App. 553. Bass v. Starnes, 108 Ark. 357, 158 S. W. 136; Hanlon v. Glue -Co., 53 Ind. App. 504, 102; X. E. 48, Martin v. Gordon, 24 Ga. 533. In this case the real consideration was much less than that stated in the deed. In Stark v. Olney, # Oreg. 88, -the consideration expressed in the deed was $2,000, but the plaintiff recovered only $507. In Staples v. Dean, 114 Mass. 125, it appeared that Sylvester, not being the owner of a lot, sold and agreed to convey it to Staples for about $950. Sylvester then purchased the lot from the real owner, Dean, for $450, and caused him to convey it to Staples with covenant of seisin, the deed ex- pressing a consideration of $950. The title having failed, Staples brought an action on the covenant, and claimed that the consideration named in the deed was the measure of his damages. The defendant Dean was permitted to show the facts in the case, and the court held that the measure of dam- ages was the value of the land at the time of the conveyance, or, at the plaintiff's election, the amount actually received by the defendant, $450. There are a few early cases holding generally that the consideration of a deed cannot be inquired into, but they are no longer regarded as authority. Among others may be named Steele v. Adams, 1 Gr. (Me.) 1; Clarke v. McAnulfy. 3 S. & R. (Pa.) 367; Schermerhorn v. Vanderheyden, 1 Johns. (N". Y.) 139; 3 Am. Dec. 304. Of course, however, parol evidence cannot be received to show that a deed is void for want of a consideration. Parol evidence as to the consideration can only be received when it is offered for some purpose other than that of defeating the conveyance. Betts v. Union Bank, 1 Harr. & Gill (Md.), 175; 18 Am. Dec. 283. Wilt v. Franklin, 1 Binney (Pa.), 502; 2 Am. Dec. 474. 70 Belden v. Seymour, 8 Conn. 304; 21 Am. Dec. 661. 71 Greenvault v. Davis, 4 Hill (N. Y.), 647. "Smith v. Strong, 14 Pick. (Mass.) 128. "Smith v. Strong, 14 Pick. (Mass.) 128. 438 MAKKETABLE TITLE TO REAL ESTATE. cannot be received to show that at the time of the conveyance the eovenantee was aware of the objections to the title of his grantor, or of the existence of incumbrances upon- the property, and had verbally agreed that in case of an eviction there should be no liability upon the covenantor. 74 It is competent, however, for the grantor to show by parol that a part of the land, to which there was no title, had been included- in* the deed by mistake, and that no consideration was paid for it. But such evidence is ad- missible only in mitigation of damages, and not for the purpose of negativing a breach of the covenant. 76 If the consideration be paid in something other than money, the actual value of the consideration so received will be the measure of the covenantee's damages. Thus, where the consideration was paid in railroad bonds, worth less than par, the measure of dam- ages was held to be the actual market value of the bonds at the time of the payment; 76 and when the consideration- is an exchange of lands, the value of the land received by the covenantor is the measure of damages for the loss of that received by the cove- nautee. 77 "Estabrook v. Smith, 6 Gray (Mass.), 578; 46 Am. Dec. 443. Nutting v. Herbert, 35 X. H. 264. Suydara-v. Jones, 10 Wend. (X. Y.) 184; 25 Am. Dec. 5.32. In Collingwood v. Irwin. 3 Watts (Pa.), 306, it was held that the de- fendant could not show by parol that at the time he executed the deed he assigned to the grantee a judgntent against a third person-, which the grantee accepted as sole security for the title and agreed never t<( hold the grantor liable on the covenant. And in Townsend v. Weld, 8 Mas. 146, it was held that parol evidence it* inadmissible to show that the eovenantee was aware of the defect of the covenantor's title and that he had agreed that the cove- nantor should not be charged in the event of an eviction. "Rawle Covta. for Title (5th ed.l, $ 174; Lloyd v. Sandusky, 203 111. 621; 68 X. I.. 154, a ease in \\hich the grantor wa<* permitted to show that the grantee knew, at the time of the conveyance, that the coal and minerals under the surface had been previously conveyed away; that the value of such coal and minerals was excluded in fixing the purchase price, and that an excep- tion of such coal and minerals had been omitted from the conveyance by mistake. See, also, Rook v. Rook, 111 111. App. 908. 'Montgomery v. Xorthern Pac. R. Co., 67 Fed. Rep. 445. Taylor v. Allen, 131 Ga. 416, 62 8. K. 201. "Howard v. Hurst, 156 Mo. App. 205, 137 S. W. 1, where held, also, that the value of the lands a* fixed by the parties at the time of the exchange governs in an action for breach of the warranty. COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 439 168. Measure of damages where the covenantee buys in the paramount title. The law does not require the covenantee to submit to an actual eviction by legal process at the suit of the real owner, as a condition precedent to the recovery of damages for the loss of the estate. He is constructively evicted, and his right of action is complete if he yields up the possession upon the demand of the true owner. 78 Upon the same principle he is per- mitted to buy in the outstanding title and to recover as damages the amount necessarily and in good faith expended for that pur- pose. 79 " There seems to be no difference in principle between yielding up the possession to him who owns the paramount title, and fairly purchasing that title, so far as respects the right to recover damages on the warranty." 80 But he can in no case recover damages in excess of the amount paid by him to the adverse claimant, 81 or in excess of the purchase price of the "Ante, 148. 79 Mayne Dam. (Wood's ech) 286; Field Dam. 378, et seq. Rawle Covt. 192. Smith v. Compton, 3 B. & Aid. 407. Leffingwell v. Elliott, 10 Pick. (Mass.) 204. Loomis v. Bedell, 11 N. H. 74. Spring v. Chase, 22 Me. 505; 39 Am, Dec. 505. Turner v. Goodrich, 26 Vt. 709. Sanders v. Wagner, 32 N. J. Eq. 506. Dale v. Shively, 8 Kans. 190; McKee v. Bain, 11 Kans. 577. Lawton v. Howe, 14 Wis. 269. Baker v. Corbett, 28 Iowa, 318, obiter, case of executory contract. Weber v. Anderson, 73 111. 439. Beaseley v. Phillips, 20 Ind. App. 182; 50 N. E. Rep. 488. Leet v. Gratz, 92 Mo. App. 422; Withers v. Bank, 104 Miss. 681, 61 So. 690; Brooks v. Mohl, 104 Minn. 404, 116 N. W. 931, 124 -Am. St. Rep. 629, 17 L. R. A. (X. S.) 1195. In Lawless v. Collier, 19 Mo. 480, it was held that if the grantee buys in the adverse title, the price paid is the measure of his damages for breach of the covenant of seisin, but if he assigned- the covenants in his grantor's deed as part of the con- sideration for the adverse paramount title, the assignee will be entitled to the full amount of the purchase money. And in Nolan v. Feltman, 12 Bush (Kv. ) 119, it was held that if through equities derived from the grantor, such as a claim* against the true owner for improvements, the grantee subjects the premises to sale and buys them himself, he will be treated as purchasing for the grantor's benefit, and can only recover on the warranty what it cost him to perfect the* title in this way. 80 Donnell v. Thompson, 1. Fairf. (Me.) 176; 25 Am. Dec. 216. 81 Farmers' Bank v. Glenn, 68 N. C. 39 and cases cited in note 79 above. Cox v. Henry, 32 Pa. St. 18. James v. Lamb (Tex.), 21 S. W. Rep. 172. Bush v. Adams, 22. Fla. 177; Herron v. Barbour, (Okl.) 182 Pac. 243; Brown v. Thompson, 81 S. C. 380, 62 S. E. 440; Waggener v. Howsley, 104 Ky. 113, 175 S. W. 4; Allen v. Miller, 99 Miss. 75, 54 So. 731. Where the outstanding title was gotten in by the husband of the covenantee, it was held that, by reason of his privity with her, she was estopped from claiming any greater 440 MARKETABLE TITLE TO REAL ESTATE. land. 83 Prima facie the covenantee has a right to recover damages to the amount of the consideration expressed in the deed. It de- volves upon the defendant to show that the covenantee got in the outstanding title at a price less than that sum. 83 The right of the covenantee to recover is not affected by the fact that he bought up the title after the commencement of his action upon the warranty. 84 And he is not only en-titled to recover the sum paid to the holder of the better title, but he may have back other necessary expenses incurred in acquiring the right of the true owner. 85 But while the covenantee may buy in the paramount title he does so at his own risk, and the burden devolves upon him to show that the title so acquired is one to which he must have inevitably yielded, 88 and that he paid value therefor. 87 The rule in this respect is the same as that which applies in case of a voluntary surrender of the premises to the adverse claimant. The right to buy in the paramount title is the privilege and not the duty of the covenantee. Therefore, his refusal to purchase the title when offered to him on moderate terms cannot be shown in defense of his action on the warranty. 88 The rule that the covenantee can have credit only for the amount paid by him to get in the outstanding title, arid that the title so acquired, except to this extent, enures to the benefit of the grantor, has been held not to apply where the subject of the contract was public land title to which hud never boon divested from the State. The reason for this doctrine is that the public amount of damages than what he paid to get in the title. Wade v. Barlow, 99 Mis*. 33, 54 So. 662. "Elliott v. Thompson, 4 Humph. (Tenn.) 98. MrQary v. Hastings, 39 Cal. 360; 2 Am. Rep. 456. Richards v. Iowa Homestead Co.. 41 Iowa. .S()4 : 24 Am. Rep. 74.1. Clapp v. Herdman, 25 111. App. 509. Williams v. Thomas, 21 Ky. L. Rep. 1228; 54 S. W. Rep. 824. "Hunt v. Orwig, 17 B. Mon. (Ky.) 73; 66 Am. Dec. 144. LHlii.trwcll v . Klliott. 10 Pick. (Mass.) 204; 19 Am. Dec. 343. Dillahunty v. Little Rock, etc., R. Co., 51) Ark. 099; 27 S. W. Ri-p. 1002, and 2.8 8. W. Rep. 657. See, generally, the cases cited, ante, this section. " Richards v. Iowa Homestead Co., 44 Iowa. :U : 24 Am. Rep. 745. "Waggoner v. Howgley, 164 Ky. 11 .V. 17:. S. \V. 4. Norton v. Babcock, 2 Met. (Mass.) 510. Buck v. Clements, 10 Ind. 132. Lloyd v. Quimby, 5 Ohio, 265. Stewart v. Drake, 4 Halst. (N. J.) 143. Miller v. Halsey, 2 Or. (N. J. L.) 48. Sanders v. Wagner, 82 N. J. Eq. 506. COVENANTS OF WARRANTY AND FOE QUIET ENJOYMENT. 441 lands are not a lawful subject of private contract, and an attempted conveyance thereof by one private person to another passes no interest whatever, and does not create the relation of vendor and vendee, and, therefore, cannot be held to furnish a consideration for the purchase price of the premises. 89 In such a case the rule that the purchaser cannot deny the vendor's title does not apply, even though the grantee knew that the title was in the government when the deed was made, and had himself at that time taken steps to acquire the lands as a homestead. 90 There is, however, a conflict of authority upon this point. 91 In a case in which the contract was executory, the supreme court of the United States held that the purchaser, who perfected the title by making entry of the land after he discovered the invalidity of -a patent under which his vendors claimed, could recover only the amount paid by him in obtaining a patent. The court held, also, that having undertaken to defeat the title of his vendors by claiming the land as his own, he could not recover the costs of entering and surveying the land, as he might have done if he had brought an action affirming the contract, instead of attempting to rescind. 92 There would seem to be no reason why the principles of this decision should not apply equally to a case in which the contract had been executed by a conveyance, and the grantee seeks to recover on the covenants for title. The covenantee cannot recover money which he paid out to extinguish the paramount title, unless the payment had that effect ; so held in a case in which the outstanding interest was vested in minors, and the value of such interest was paid to their guardian * 9 Lamb v. James, 67 Tex. 485; 29 S. W. Rep. 647, citing Wheeler v. Strifes, 28 Tex. 240 ; Rogers v. Daily, 46 Tex. 582 : Palmer v. Chandler, 47 Tex. 333 ; Houston v. Dickinson, 16 Tex. 81. See, also, Kans. Pac. R. Co. v. Dunmeyer, 19 Knns. 543. Barr v. Greeley, 52" Fed. Rep. 926, obiter; Montgomery v. Northern Pac R. R. Co., 67 Fed. Rep. 445. Spier v. Lanman, 27 Tex. 205. (Compare, Ellis v. Crossley, 119 'Fed. Rep. 779.) 90 Dillahunty v. Littte Rotk, etc., R. Co. (Ark.), 27 S. W. Rep. 1002. 91 Post, 202, 22fo. Holloway v. Miller, 84 Miss. 776; 36 So. Rep. 531. 92 Galloway v. Finlay, 12 Pet. (U. S.) 264. Thredgill v. Pintard, 12 How. (U. S.) 24. 56 442 MAKKETABLE TITLE TO HEAL ESTATE. under an order of court to convey the interest of his wards to the covenantee, the court having no power to enter such an order. 93 109. Measure of damages for loss of term. The rule that the covenantee upon eviction is not entitled to damages for the increased value of the land, has been held in New York and else- where not to apply in case of a breach of a covenant for quiet enjoyment contained in a lease, the lessee in case of eviction by title paramount being held entitled to damages for the value of his unexpired term over and above the rent reserved." A similar Leet v. Gratz, 92 Mo. App. 422. "Clarkson v. Skidmore, 46 N. Y. 297. Clark v. Fisher, 54 Kans. 403; 38 Pac. Rep. 493. Fritz v. Puscy, 31 Minn. 368; 18 X. W. Rep. 94. Wetzel v. Richcreek (Ohio), 40 X. E. Rep. 1004. Sheets v. Joyner (Ind.), 38 N. E. Rep. 830. Damage* for the value of the unexpired term over and above the rent reserved were allowed in Mack v. Patchin, 42 X. Y. 167; 1 Am. Rep. 506 (1870). The decision, however, seems to have been rested largely upon the want of good faith in the lessor and his connivance at the eviction of the lessee* by foreclosure of a mortgage on the demised 1 premises. (See the com- ments on this decision 1 in Lannigan v. Kille, 97 Pa. St. 120; 39 Am. Rep. 979.) The case has been much cited, and justifies the following copious extract from the opinion of EARLE, C. J. : "Ordinarily in an action against the vendor of rfa\ estate for breach of the covenant of warranty the vendee can recover only the consideration paid and interest for not exceeding six years; and when the contract of sale is executory, no deed having been given, in cases where no part of the purchase money has been paid, the vendee can recover only nominal damages; and in cases where the purchase money has been* pa id, he can recover the purchase-money interest and nominal dam- ages. In an action by the lesst'e against the lessor for breach of the covenant for quiet enjoyment, the lessor can ordinarily recover only such rent as he has advanced, and such inesne profits as he is liable to pay over; and in cases where the lessor is sued for a breach of a contract to give a lease or to give |>i.--rv-ioii, ..nliiiiirily tin- Ir--.cc r;ni iivuvcr only nominal il;m>:iL'>-- :unl -nir incidental expenses, but nothing for the value of his lease. These rules, however much they may be criticised, must be regarded as settled in this State. But at an early day in England* and in this country certain cases were declaretl to be exceptions to these rules, or, more properly speaking, not to be within them; as if the vendor is guilty of fraud, or can convey, but will not, either from pervcrseness or to secure a better bargain; or if he has covenanted to convey when he knew he had no authority to contract to convey; or where it is in his power to remedy a defect in the title and he refuse* or neglects to do HO; or when he refuses to incur expen-vea which would enable him to fulfill In- contract. In all these cases the vendor or le.sHor is liifl.lr to the vendee or lessee for the loss of the bargain under rules iinalogous to those applied in the sale of personal property. In i his cane the defendant resided in Buffalo, where the real estate was located, COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 443 rule has been applied in England 95 in such cases. A different rule formerly prevailed in New York; the earlier cases hold that the rent reserved for the residue of the unexpired term is the measure of the lessee's damages. 96 The late cases would seem to establish the better doctrine. They proceed upon the ground that the rule caveat entptor does not apply as between lessor and lessee. It is not customary for the lessee to examine the title, even if he were allowed to do so. It may be observed, too, that no very serious consequences can flow from a rule that gives the lessee the benefit of the actual value of the term, for it is but seldom that the annual and he owned the real estate at the time he made the lease; and, in the absence of any proof to the contrary, he must be presumed to have known of the mortgages upon the real estate at the time he made the lease. He is, therefore, within the rule of law above alluded to, liable to the damages awarded against him, because he gave the lease knowing of the defect in his title * When he gave this lease, if he acted in good faith, he must have intended in some way to -have taken care of these mortgages; and because he did not do so, having the ability, so far as appears, to do so, he should be held liable to the damages recovered. He not only failed to do his duty to the plaintiff in any of the respects here indicated, but went actively to work to remove him from the premises, and succeeded in doing so." In McAllister v. Landers, 70 Cal. 79; 11 Pac. Rep. 105, where a lessee was evicted under judgment in favor of one having older title, it was held that his damages for breach of the covenant for quiet enjoyment could not be less than the judgment for damages and costs against himself. 95 Williams v. Burrell, 1 Com. B. 402; Lock v. Furze, 19 Com. B. (X. S.) 96; S. C. on appeal, L. R., 1 C. PI. 441; Rolph v. Crouch, L. R. 3 Exch. 44. 98 Kelly v. Dutch Church, 2 Hill (N~. Y.), 105; Kinney v. Watts, 14 Wend. (N. Y.) 38. In Moak v. Johnson, 1 Hill (N. Y.), 99, the rule established by these cases seems to have been reluctantly admitted. The same rule has been announced in other States. Lanigan v. Kille, 79 Pa. St. 120; 39 Am. Rep. 797. McAlpine v. Woodruff, 11 Ohio St. 120. Lanigan v. Kille, supra, was a case of great hardship. . A lessee had erected extensive and costly improvements for mining purposes on the demised premises under an agree- ment by which he had the right to rtemove the improvements at the end of the term. After some years' enjoyment of the estate the lessee was evicted by the true owner. After the eviction, in an action by the latter against the lessor for mesne profits, the defendant (lessor) was allowed the value of the improvements as a set-off against the plaintiff's demand. The lessee than brought an action on his implied covenant for quiet enjoyment, claiming damages for the increased value of the term by reason of the improvements. The court held that the consideration, that is, the rent reserved, was the measure ~of the lessee's damages, and that as the improvements were to be the property of the lessee at the end of the term they could not be treated as the consideration of the lease, andi the only rent reserved being a royalty, the plaintiff was entitled to no more than nominal damages. 444 MAEKETABLE TITLE TO REAL ESTATE. value of the premises is found to be in excess of the rent reserved ; and leases are for the most part, of short duration in localities where the rental value of the property is likely to increase. If the lessee is liable to the true owner for mesne profits, he may recover back the rent he has paid to the lessor, as damages for breach of the covenant for quiet enjoyment. 97 It seems that, if he has paid no rent, he can only recover nominal damages -in case of eviction, with costs incurred in defending the title. 98 A purchaser who pays an annual ground rent instead of a sum in gross will, if deprived of the premises by the eviction of the lessor, his heirs or Assigns, be absolved from the payment of the rent in toto." If he be deprived- of a part of the premises, or pay off an incumbrance of less amount than the ground rent, he will be entitled to an abatement of the rent for such time as shall be sufficient for his indemnity. 1 170. Measure of damages on eviction from part of the land. If the covenantee be evicted from part only of the warranted premises, the measure of his damages will be, not the average price paid per acre for the whole tract, but such a proportion of the whole consideration paid as the value of the part to which the title fails bore at the time of the purchase to the whole purchase price. 2 The rule is the same whether the action be for breach of "Kelly v. Dutch Church, 2 Hill (X. Y.), 105. "Moak v. Johnson, 1 Hill (X. Y.), 99. * Franciseus v. Reigart, 4 Walts (Pa.), 116. 1 Garrison v. Moore, 1 Phila. (Pa), 282. 'Sedg. Dam. (8th e it is said that " the damages are limited to a sum which bears to the whole consideration of the convo; the same ratio which the size of the part of the premises as to which there is a failure of title bears to the size of the entire tract attempted to be convoyed." This seems -to leave the relative value of tlie part lost out of consideration. Stahley v. Irvine, 8 Barr. (Pa.). 500. In Terry v. Drabenstadt, 68 Pa. St. 400, it was held that if the covenantee was evicted of onc-tliin! of the land by a widow claiming dower, the measure of his damages will IHJ the value of the willow's lift- interest, taking the pun-ha*> money as the basis of the c-tim.ite. \\Yber v. Anderson. 73 111. 43!l ; \\ailliams v. Inno*s 4 111. App. 640. Lloyd v. Sandmky, 203 111. 621; 8* X. K. Hep. l.U. Hynes v. Packard, 92 Tex. 44; 45 3. W. Rep. 562. Hoffman v. Kirby, l.'iU COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 445 the covenant of seisin or the covenant of warranty. Of course, there is no room for the application of this rule where the estate lost consists of an undivided interest. One undivided moiety can Gal. 26; 68 Pac. Rep. 321. Messer v. Oestrich, 52 Wis. 694; 10 N. W. Rep. 6. If the part lost have valuable improvements on it, the value of that part including the improvements- will be the measure of damages. Semple v. Wharton, 68 Wis. 626; 32 N. W. Rep. 690, correcting an inadvertent mis- statement of the rule in Mlesser v. Oestrich, supra. Ela v. Card, 2 X. H. 175; 9 Am. Dec. 46; Partridge v. Hatch, 18 N. H. 494. The rule as stated in the head note to this case is misleading, and is not sustained by the opinion. Winnipiseogee Paper Co. v. Eaton, 65 N. H. 13; 18 Atl. Rep. 171. Wlneeler v. Hatch, 12 Me. 389; Blanchard v. Blanchard, 48 Me. 174. Cornell v. Jackson, 3 Gush. (Mass.) 506; Lucas v. Wilcox, 135 Mass 7.7. Hubbard v. Norton, 10 Conn. 422. Humphreys v. McClenachan, 1 Munf. (Va.J 493; Crenshaw v. Smith, 5 Munf. (Va..) 415. Butcher v. Peterson, 26 W. Va. 447; 53 Am. Rep. 89. But, in Kelly v. Price, 22 W. Va. 247, it was said that the compensation should be allowed at the rate of the average price paid for the wholte tract. Phillips v. Reichert, 17 Ind. 120; 79 Am. Dec. 463; Hoot v. Spade, 20 Ind. 326. Brandt v. Foster, 5 Iowa, 287. Wallace V. Talbot, 1 McCord (S. C.), 466. Dickens v. Shepherd, 3 Mur.ph. (N. C.) 526. Grant v. Hill, (Tex. -Civ. App.), 30 S. W. Rep. 952. Griffin v. Reynolds, 17 How. (U. S.) 609. Dubay v. Kelly, (Mich.) 100 N. W. Rep. 677; Loiseau v. Threlstad, 14 S. Dak. 257; 85 N. W. Rep. 189; West Coast Mfg. Co. v. West Coast Imp. Co., 31 Wash. 610, 72 Pac. Rep. 455; Southern Wood Kfg. Co. v. Davenport, 50 La 521; 23 So. Rep. 448. Morris v. Phelps, supra, is the leading case on this point. There it was held that where there was a want of title only as to part of the land conveyed, the damages ought to b'e apportioned -to the. measure of value between the land lost and the land preserved, and not according to the number of acres lost and the number preserved. " Suppose," said Chief Justice KEXT, " a valu- able stream of water with expensive improvements upon it, with ten acres of adjoining barren land, was sold for $10,000, and it should afterwards appear that the title to the stream with' the improvements on it failed, but remained good as to the residue of the land, would it not be unjust that the grantee should be limited in damages under his covenants to an apportionment according to the number of acres lost, when the sol'e induce- ment was defeated, and the whole value of the -purchase had failed? So, on the other hand, if only the title to the nine barren acres failed, the vendor would feel the weight of extreme injustice, if he was obliged to refund nine- tenths of the consideration." In Major v. Dunnavant, 25 111. 234, the con- sideration money embraced two tracts of land, one of two hundred and the other of eighty acres. The title to the eighty-acre tract failed. "Assuming," said the court, " that the proof shows that the two hundred acres were worth $5.000, and the 80 acres were worth $100, and the price paid for the whole was $6,000, then there was the sum of $900 paid for the whole purchase more than it was worth, and this loss must be apportioned to the two tracts according to their actual values respectively. Thus, dividing the $900 into MARKETABLE TITLE TO REAL ESTATE. be of no greater value than the other. In such a case, the damages will be in such proportion to the entire consideration as the undi- vided interest hears to the entire estate in the land. 8 It has been held, however, that the rule limiting damages to the actual value .">! parts the tract worth $5,000 would lear 50 parts of it, and the tract worth $100 one part, and by this amount would the actual value of the SO-acre tract be increased for the purpose of ascertaining how much was paid in the purchase for this tract, and by adding to this sum the interest upon it the amount of the damages for the breach of the covenant would be ascer- tained." In Sear* v. Stinson, 3 Wash. St. 615, the following rule was laid down: " The jury, assuming the value of the whole tract to l>e the contract price, must find how much less than the contract price the land was worth at the time of the sale by reason of the deficiency, and that will be the plain- tiff's damages." In Wright v. Nipple, 92 Ind. 314, it was stated that the measure of damages for the loss of one-third of the. land was one-third of the purchase money, but the part to which the title failed in that case was an undivided moiety, and the case, therefore, cannot be regarded as establishing in that State a rule different from that stated in the text. The same state- ment lias been made elsewhere, but it did not appear that one part of the land was more valuable than the other, and the question of damages for the relative value was not before the court. King v. Kerr, 5 Ohio, 160; 22 Am. Dec. 777. In Kentucky it is held that the measure of damages 1 for the portion lost is the fair market value of that portion "considered with reference to the whole portion.'' Burkholder v. Farmers' Bank, 23 Ky. L. Rep. 2449; 67 S. W. Rep. 832. In Kempner v. Lumber Co., 20 Tex. Civ. Appu 307. 49 S. W. Rep. 412, the part to which the title failed was much inferior in value to the rest of the land, and would not have been purchased but that the seller refused to sell a part only of the tract, and insisted upon the same price per acre for the whole tract. It was held that the measure of damages was the purchase price, without reference to the actual value of the part lost. Krcrnt Cases. Helton v. Asher, 135 Ky. 751; 123 S. W. 285. Sullivan v. Hill, 33 Ky. L. R, 962; 112 S. W. 564; Brawley v. Copelin, 106 Ark. 256; 153 S. W. 101; Lemly v. Ellis, 146 N. C. 221; 59 S. E. 683; Campbell v. Shaw, 170 N. C. 186; 86 S, E. 1035; NorthciHt v. Hume, (Tex. Civ. App. I 174 S. W. 974; Fid, Lumber Co. v. Ewing, (Tex. Civ. App.) 201 S. W. 1163; Fanners' Etc. Hank v. Cole, (Tex. Civ. App.) 195 S. W. 949; Lumpkin v. Blewett, (Tex. Civ. App.) Ill S. W. 1072; Mayer v. Woolen, 46 Tex Civ. App. 327; 102 S. W. 423; Lnrkin v. Trammell, 47 Tex. Civ. App. 64*; 105 S. \V. 652; Smith v. Ward, 66 W. Va. 190; 66 S. E. 234; 33 L. R. A. (N. 8.) 1030. Smith v. White, 71 W. Va. 639; 78 S. E. 378. The word "value" in the rule stated in the text means actual value, and not that fixed by the partie*. Merch. Nat. Bank v. Otero, 24 N. M. 598; 175 Pae. 781. Where the grantee loaeii part of the lot conveyed, the measure of damage* for breach of the warranty in the difference in the value of the lot after the IOH. Withers v. Crennhaw, (Tex. Civ. App.) 155 S. W. lrS9. Downer v. Smith, 38 Vt. 464: Scantlin v. Allison, 12 Kans. 92. COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 447 of the part lost does not apply where the original contract between the parties shows that the sale was by the acre and not in gross. In such case the contract is not merged in the subsequent deed, and the covenantor will not be permitted to show that the portion lost consisted of bluffs and gullies and was worthless. 4 If, in addition to the general warranty, the deed shows that the sale was by the acre and that the grantor must account for any deficiency in the acreage, a, suit to recover for such deficiency is not a suit upon the covenant of warranty, but is a suit upon the special covenant to refund. 5 If there be no evidence of a difference in value between the part of the estate which has been lost and the part retained, the measure of damages will, of course, be such a proportion of the entire purchase as the part lost bears to the entire tract. 6 It is to be observed also that if the grantor warrants the title to a certain number of acres only, and the grantee remains in peaceable possession of that number of acres, it is no breach of the warranty if he be evicted from a portion of the premises embraced in the deed. 7 The words " more or less " in the deed ordinarily mean that the grantor does not warrant the precise number of acres named therein; and if there be no more than a reasonable deficiency in the acreage conveyed, there is no breach of the covenant of war- ranty in the deed. 8 If the breach of the covenant is only as to one of several lots or parcels conveyed, the covenantee recovers the consideration paid for that particular lot or parcel. 9 It will hereafter be seen that a purchaser may rescind or refuse to perform an executory contract for the sale of lands if the title to a portion of the estate prove defective, unless the portion affected or the charge upon the estate be trifling and inconsider- 4 Conklin v. Hancock, 67 Ohio St. 455; 66 N. E. Rep. 518; Kempner v. Lumber Co., 20 Tex. Civ. App. 307; 49 S. W. Rep, 412. 5 Holt v. Mynhier, 29 Ky. L. R. 819; 96 S. W. 477. Gass v. Sanger, (Tex. Civ. App.), 30 S. W. Rep. 502; Butte Cr. Etc. Dredging Co. v. Olney, 173 Cal. 697; 161 Pac. 260. 7 Folk v. Graham, 82 S. C. 66; 62 S. E. 1106. "Kitzman v. Carl, 133 Iowa, 340; 110 N. W. 587. "Hanlon v. Glue Co., 53 Ind. App. 504; 102 N. E. 48. 448 MARKETABLE TITLE TO REAL ESTATE. able. 10 He has no such option where the contract has been exe- cuted by a conveyance with full covenants for title. If he be evicted from part of the estate by paramount title, he cannot treat the contract as at an end and recover the entire purchase money as damages, even though the part to which the title failed had been the principal inducement to his purchase. If that part, however, be of greater value than the other, the part of the purchase money that he will be entitled to recover as damages, will, as we have just seen, lie proportioned to the actual value of the portion of the premises lost. The same rule applies where it appears that the covenantor had not the quantity of estate or the interest that he undertook to convey. 11 Thus, in a case in Tennessee in which the grantor had only a life estate instead of a fee, it was held in an action for breach of the covenant of seisin that the plaintiff must keep the life estate, recovering as damages the difference between the value of the life estate and the fee." Where a deed passes an estate of value, though not the precise estate covenanted, it is to be considered in measuring the damages for breach of the cove- nant. 15 If the covenantee and his grantees have enjoyed the benefit of a life estate in the premises, the value of such estate must be deducted from the damages, even though the plaintiff, who was an assignee of the covenant, enjoyed but a small portion "Post, ch. 32. 1 Sugd. Vend. (8th ed.) 477 (315). "Morris v. Phelps, 5 Johns. (X. Y.) 56; 4 Am. Dec. 323. See, also, cases cited ante p. 444, note 2. An agreement that if the title to part of the land fails, the grantee may have credit on his purchase-money notes on recon- veying such part, does not oblige him to pursue that course. He may pay the notes and sue on the warranty. Wood v. Thornton, (Tex.) 19 S. W. Rep. 1034. "Recohs v. Younglove, 8 Baxt. (Tenn.) 385. TUBNKT, J., dissented, hold- ing that the covenantee was entitled to damages to the extent of the entire purchase money. It was intimated by the court that a different conclusion might have been reached if the .plaintiff had proceeded in equity for a rescis- sion of the contract instead* of seeking damages at law. It is doubtful, however, whether equity, in the absence of fraud or mistake, would have entertained the covenantee, the contract being fully executed, and his remedy at law being adequate and plain. Morris v. Phelps, supra. Upon the prop- osition stated in the text, see further Gray v. Brisco, Noy. 142, and case* cited ante, p. 444. Tanner v. Livingston, 12 Wend. (N. Y. 83.) "Kimball v. Bryant, 25 Minn. 496; Ogden v. Ball, 38 Minn. 237; 36 N. W. Rep. 344; Huntsman v. Hendricks, 44 Minn. 432; 40 X. W. Rep, 910. COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 449 of the life estate. 14 If the title be outstanding in tenants in com- mon or joint tenants, and but one of these recovers an undivided half against the covenantee, the warranty is broken only as to one-half of the premises, and the covenantee can recover damages only on that basis. The recovery of an undivided half by a tenant in common with a third person, is not a constructive recovery of the whole estate in common. 10 It has been held that the burden will be upon the plaintiff to show the relative value of the part to which the title failed, and that in the absence of any evidence on that point, it will not be presumed that all the parts were of the same value. The burden is on the plaintiff to establish all the facts showing that he is entitled to relief, and to what extent. 16 Evidence of the advan- tages or disadvantages of the part lost, is admissible on behalf of either party. 17 Where the breach of the covenant of warranty or the covenant for quiet enjoyment, consists in the establishment of an easement in the granted premises, e. g., J he occupation of a part of the premises by a public highway, the measure of damages has been held to be the difference in value between the premises with and without the easement. In such a case the rule that the damages are to be measured by the consideration money, or a ratable part thereof, does not apply. 18 Where the breach consisted in the occupancy of a part of the premises by a tenant under a prior lease from the grantor, it was held that the measure of damages "Aiken v. McDonald (So. Car.), 20 S. E. Rep. 796. "McGrew v. Harmon, (Pa. St.) 30 Atl. Rep. 265. "Mischke v. Baughn, 52 Iowa, 528; 3 N. W. Rep. 543. "Beaupland v. McKeen, 28 Pa. St. 124; 70 Am. Dec. 115. "Byrnes v. Esty, 133 N. Y. 342; 31 N. E. Rep. 105. In a caste in which the breach of warranty consisted in the condemnation of a part of the premises for street purposes, it was held that the measure of damages was not merely the value of the part taken, but that the grantee was entitled to recover also for the resulting injury .to the balance of the property; and that in estimating the damages the peculiar value, for certain purposes, of the part taken, might be considered. James v. Warehouse Co., 23 Ky. L. Rep, 1216; 64 S. W. Rep. 966; 24 Ky. L. Rep. 1266; 70 S. W. Rep. 1046. 57 450 MARKETABLE TITLE TO REAL ESTATE. was the fair rental value of the part occupied, 19 and oxjx>nses of litigation with the tenant. 20 If, on failure of title to part of the premises, the suit be not for damages but for rescission and recovery of the purchase money paid, the rule that the damages cannot exceed the purchase money for that portion of the premises does not apply. 21 171. Improvements. The rule that the measure of damages upon a breach of the covenants of warranty and of seisin, is the consideration money and interest, precludes the purchaser from recovering the value of improvements placed by him on the prem- ises. 22 When, however, these are of a permanent and substantial character, he is generally allowed their value in any proceeding against him by the holder of the paramount title to recover the premises and damages for their detention. 23 Especially will such an allowance be made when the grantee is evicted by the grantor himself, upon the ground that he was incompetent to execute the conveyance. 24 172. Covenantee's right to interest as damages. The rule generally prevailing throughout the United States is that the cove- nantee is entitled to recover interest on the consideration money awarded as damages for breach of the covenants for title in all cases in which he is liable to the real owner of the estate for mesne profits, and that he is not entitled to interest unless he is liable for the profits, 26 and this without regard to the proportion between "Bass v. Stearrns, 108 Ark. 357; 158 S, W. 136. "Browning v. Stillwell, 86 N. Y. Supp. 707; 42 Misc. 346. "Fordtran v. Cunninpham, (Tex. Civ. App.) 177 S. W. 212. "Bender v. Fromberger, 4 Dall. (U. S.) 442, leading case. Coffman v. Huck, 19 Md. 435. But Bee Morton v. Ridgway, 3 J. J. Marsh. (Ky.) 254. Lejeune v. Barrow, 11 La. Ann. 501. "1 Story C. C. (U. S.) 478. Thompson v. Morrow, 5 Serg. & R. (Pa.) 289. The right of the defendant in ejectment to an allowance for improvement* made by him upon the estate, is affirmed by statute in many of the States. Where the grantee is, by statute, entitled to the value of his improvriiu-ni-* as against the owner of the paramount title, he cannot recover UK- value of such improvements from the covenantor. Webb v. Wheeler, 80 Neb. 438; 114 N. W. 636; 17 L. R. A. (N. S.) 1178. Hawkins v. Brown, 80 Ky. 186. **4 Kent. Com. 475. The learned author says: "The interest is to counter- vail the claim for raeane profit"} to which the grantee is liable, and is and ought to be commensurate in point of tim<- with the legal clnim to HH-.JK- profits." 2 Sutherland Dam. 300. Staats v. Ten Kyck, 3 faine* (N. Y.), Ill: 2 Am. !><. l j:>: I'iMu-r v. Livingston. 4 .Tolm*. (X. Y.) 1; 4 Am. !>.,. COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 451 the amount of the interest and the value of the mesne profits. 28 Thus, if the true owner's right to recovery of the profits is lim- ited by statute to a certain number of years next preceding his action to recover the premises, the evicted covenantee will not be entitled to interest beyond that period. 27 So, if he takes a life estate instead of a fee under the conveyance, he is not entitled to interest on the damages, because he has a right to the profits as against the remainderman. 28 The same rule applies where the evic- tion results from the enforcement of a mortgage or other incum- brance on the land, the covenantee not being liable to the incum- brancer for rents and profits. 29 In some cases, however, it has been 229; Caulkins v. Harris, 9 Johns. (N. Y.) 324; Bennet v. Jenkins, 13 Johns. (N. Y.) 50. Collier v. Cowger, 52 Ark. 322; 12 S. W. Rep. 702. Cox v. Henry, 32 Pa. St. 18. Sumner v. Williams, 8 Mass. 222; 5 Am. Dec. 83. Willson v. Willson, 25 N. H. 229; 57 Am. Dec. 320; Groesbeck v. Harris, 82 Tex. 411; 19 S. W. Rep. 850; Brown v. Hearon, 66 Tex. 63; 17 S. W. Rep. 395. Bennett v. Latham, 18 Tex. Civ. App. 403; Huff v. Riley (Tex. Civ. App.). 64 S. W. Rep. 387. Mather v. Stokely, 218 Fed. 764; 134 C. C. A. 442; Withers v. Bank, 104 Miss. 681; 61 So. 690; Davis v. Lee, 52 Wash. 330; 100 Pac. 752; 132 Am. St. Rep. 973. Thompson v. Guthrie, 9 Leigh (Va.) 101; 33 Am. Dec. 225. In the earlier cases of Threlkeld v. Fitzhugh, 3 Leigh (Va.), 451 and Jackson v. Turner, 5 Leigh (Va.), 119, it seems to have been held that the covenantee was entitled to interest only from the date of his eviction. So, also, in Moreland V. Metz, 24 W. Va. 138; 49 Am. Rep. 246. Frazer v. Supervisors, 74 111. 282. McNear v. McComber, 18 Iowa, 12. Stebbins v. Wolf, 33 Kans. 771; 7 Pac. Rep. 542. Rich v. Johnson, 1 Chand. (Wis.) 20; S. C., 2 Pinney (Wis.), 88; Messer v. Oestrich, 52 Wis. 694; 10 N. W. Rep. 6. King v. Kerr, 5 Ohio, 160; 22 Am, Dec. 777. McGuffey v. Humes, 9 Lea (Tenn.), 93. Flint v. Steadman, 36 Vt. 210. A covenantee counterclaiming for damages arising from a judgment of eviction in eject- ment cannot have interest on the damages for the time he remained in pos- session after judgment. Wacker v. Straub, 88 Pa. St. 32. The removal of timber from the premises by a vendee of the covenant cannot be set off against the covenantee's right to interest, he not having received any of the pro- ceeds of the timber. Graham v. Dyer, (Ky.), 29 S. W. Rep. 346. M British & Am. Mtge. Co. v. Todd, 84 Miss. 522; 36 So. 1040. 27 Harding v. Larkin, 41 111. 413. Morris v. Rowan, 17 N. J. L. 304. De Long v. Spring Lake Co., 65 N. J. L, 1; 47 Atl. 491. Hutchins v. Rountree, 77 Mo. 500; Lawless v. Collier, 19 Mo. 486. Kyle v. Fauntleroy, 9 B. Mon. (Ky.) 620. Caulkins v. Harris, 9 Johns. (N. Y.) 324. Cox v. Henry, 32 Pa. St. 19. Mette v. Dow, 9 Lea (Tenn.) 96; Crittenden v. Posfey, 1 Head (Tenn.), 312. Staed v. Rossier, 157 Mo. App. 300; 137 S. W. 901. 28 Guthrey v. Pugsley, 12 Johns. (N. Y.) 126. "Patterson v. Stewart, 6 Watts & S. (Pa.) 527; 40 Am. Dec. 586; Williams v. Beeman, 2 Dev. (X. C.) 486. J52 MARKETABLE TITLE TO REAL ESTATE. held that the covenantee will not be allowed interest on the dam- ages unless he shows that he has accounted to the real owner for the rents and profits. 30 In other cases his right to interest has beer declared complete without regard to the question of mesne profits, on the ground that the covenantor has no interest in the profits, and cannot recoup them from the purchase money and interest, nor compel the covenantee to account for them. 31 If the covenantee. being liable for the mesne profits, buy in the paramount title and recover as damages the amount expended for that purpose, he will Field Dam. 466; 1 Sedg. Dam. (7th ed.) 338, n. Wacker v. Straub, 88 Pa. St. 32. Burton v. Reeds, 20 Ind. 91. This rule has been established by statute in Missouri. Hutchins v. Rountree, 77 Mo. 500. Pence v. Gabbert. 70 Mo. App. 201. But see Foster v. Thompson, 41 N. H. 73, where it was held to be immaterial to the allowance of interest whether the covenantee had or had not accounted to the adverse claimant for rents and profits, it being presumed that mesne profits will be recovered by the real owner. In Whitinp v. Dewey, 15 Pick. (Mass.) 428, it was intimated that if from lapse of time the covenantee became no longer liable for the mesne profits they should be deducted from the purchase money and- interest. "Wilson v. PeeJle, 78 Ind. 384; Wright v. Nipple, 92 id. 314; Rhea v. Swain, 122 Ind. 272; 23 N. E. Rep. 776, where held, also, that failure of the true owner to get judgment for the rents and profits gave the covenantor no claim to them. But see Burton v. Reeds, 20 Ind. 87. In Mitchell v. Hazen, 4 Conn. 435; 10 Am. Dec. 169, it was said that the grantee was entitled to the consideration with interest, whether he had been in possession or not, for the reason that the money due to the owner for rents and profits constituted a distinct and separate claim. And in Hulse v. White, 1 Cox (X. J. L.), 173, the court said: "The defendant cannot avail himself of the use made by the plaintiffs of the property of another, in order to lessen the damages. We must suppose that the real owner will have satisfaction for the profits received from the land." In Earle v. Mjddleton, Chevea (S. C.), 120, it wan held that the fact that the covenantee had l>een in receipt of the profits did not affect his right to interest on the consideration money. Interest in such a case id allowed as an indemnity against any demand for mesne profits that may be made upon the covenantee in the future. The covenantor cannot demand to have the profits set off against interest because he in not concerned with them. In this connection O'XEALE, J., said: "There is no case of eviction, actual or constructive, by paramount title, where the party's right to interest would be defeated by the reception of the rents and profits. The defect reaches back to the l>eginning of hi* title, and the rents end profits which he ha* received- are not those of hia vendor, but those of a third person having the paramount title. The dam- ages recovered in a case of actual eviction, or which may be recovered by an existing paramount title outstanding, are in the place of rents and profits, and represent them in legal contemplation." COVENANTS OF WAitKANTY AND FOR QUIET ENJOYMENT. 403 be allowed interest on the recovery, it being presumed that the rnesne profits entered into the consideration paid for the para- mount title. 32 It has also been held that he will be entitled to inter- est on the amount paid to get in the outstanding title, whether he has or has not been in the pernancy of the rents and profits, and whether the latter are more or less than the interest on the purchase price of the land. 33 But where the covenantee was kept out of pos- session for a time and afterwards acquired possession, it was held that he could not recover the rental value of the premises for the time he was kept out of possession, since he might have acquired possession, to be delivered before accepting the conveyance. 34 The rule that the covenantee is not entitled to interest unless he is liable for the rents and profits, of necessity applies only to cases in which he was in possession of the estate. If he was never able to get possession, he will, of course, be entitled to interest from the time the purchase money was paid. Interest runs from the time of purchase, and not merely from the date of eviction. 35 173. Costs as elements of damages. In England and in most of the American States, in which the question has been considered, the covenantee is permitted to include in his recov- ery for a breach of the covenant of warranty or of seisin, the taxed costs incurred by him in defending the title when attacked by the adverse claimant, although he may not have notified the covenantor to appear and defend the suit. 36 The purpose of such a 33 Harding v. Larkin, 41 111. 413. "Spring v. Chase, 22 Me. 505; 39 Am. Dec. 505. 34 Andrus v. St. Louis Smelting Co., 130 U. S. 643. No authorities cited. 35 Simpson v. Belvin, 37 Tex. 675. Bellows v. Litchfield, 83 Iowa, 36: 48 N". W. Rep. 1062. ST. Pac. R. Co. v. Montgomery, 86 Fed. 251. But if he is not liable for mesne profits he can recover interest only from the date of eviction. McGuffy v. Hawes, 85 Tenn. 26; IS. W. Rep. 506; Mette v. Dow, 9 Lea (Tenn.) 93. 39 The cases cited below include, also, those in which the covenantee was allowed the costs of defending the title, but in which no objection was made to the allowance, on the ground that the covenantor had not been notified to defend. Williams v. Burrill; 1 Com. B. 402; Smith v. Compton, 3 B. & Adolph, 407; Pomeroy v. Partington, 3 Term Rep. 678, note. Bennet v. Jenkins, 13 Johns. (N. Y.) 50; Waldo v. Long, 7 Johns. (X. Y.) 173. Keeler v. Wood, 30 Vt. 242. Kyle v. Fauntleroy, 9 B. Mon. (Ky.) 622; Robertson v. Lemon, 2 Bush (Ky.), 302. Jeter v. Glenn, 9 Rich. L. (S. C.) 374. Cris- tield v. StoiT, 36 Md. 151; 11 Am. Rep. 480. Harding v. Larkin, 41 111. 421. 454 MARKETABLE TITLE TO REAL ESTATE. notice is not to make the covenantor liable for costs but to make the judgment in the adverse claimant's suit conclusive upon him when sued by the covenantee for the breach of his covenant." There has been much- conflict of opinion, however, upon the ques- tion of the liability of the covenantor for costs incurred by the covenantee in defending the title, as affected by the refusal of the former to appear and defend. There are cases which hold that if the covenantor refuse to defend when notified, he thereby confers upon the covenantee the right to proceed with the defense and to incur all legal costs necessary for that purpose. 88 On the other McKee v. Bain, 11 Kans. 578. Sumner v. Williams, 8 Mass. 162, 222. Brooks v. Black, (Miss.) 8 So. Rep. 332. Matheny v. Stewart, (Mo.) 17 S. W. Rep. 1014. Hazlett v. Woodruff, 150 Mo. 534; 51 S. W. Rep. 1048; Long v. Wheeler, 84 Mo. App. 101. Estep v. Bailey, (Oreg.) 185 Pac. 227; Rennie v. Gibson, (Okl.) 183 Pac. 483; Anderson v. Me-rrill Co., 77 N. H. 275; 90 All. 789; Scott v. Scott, 183 Ky. 604; 210 S. W. 175. The costs which the covenantee is entitled to recover do not include those of an action between himself and one to whom he had sold the property, in which action it was determined that the title was unmarketable. Hilliker v. Rueger, 228 N. Y. 11; 126 X. E. 266. Costs and counsel fees incurred by the grantee in defending the title to a piece of land, which, by mistake, was not included in his deed, cannot be recovered against the grantor, though the deed was, after judgment against the grantee, reformed so as to embrace the lot in question, with covenant of warranty. Butler v. Barnes, 61 Conn. 309; 24 Atl. Rep. 328. The taxable costs paid by the plaintiff may be inc.ludcd in the damages though the costs were not in fact taxed. Webb v. Holt, 113 Mich. 338; 71 N. W. Rep. 637. "Morris v. Rowan, 17 N. J. Li 309 (1839), FORD, J., saying: "The defendant^* counsel supposes the costs on eviction are allowed because it WMIB the warrantor's duty to defend the suit upon receiving notice of the action, and he objects to themr in this case because no notice was given t. the war- rantor or his representatives of the pendency of the action. But all the cases agree in allowing the, costs of eviction, and it is immaterial whether he had notice or not. His covenant to warrant ami defend is not a conditional one, if he haa notice, otherwise want of notice might bar the warranty itself. He covenants to defend as absolutely as he dties to warrant. The intent of notice is not to make him liable for costs; it is to make the record of eviction conclude him in respect to the title." HOBNBLOWKR, C. J.. stated that he had examined a numlicT of cases bearing on the point in dispute, and that in none of them did it appear that the. right to costs depended on notice to the covenantor to defend." Sec, also, Duflield v. Scott, 3 Term Rep. 374. "Swell v. Patrick, 12 Me. 1; Williamson v. Williamson, 71 Me. 442. Dubay v. Kelly (Mich.), 100 N. W. Rep. 677. Mercantile Trust Co. v. So. Park Residence Co., 94 Ky. 271; 22 S. W. Rep. 314. Winnepineogee Paper Co. v. Hat. .11, 65 N. H. 13; 18 Atl. Rep. 171. Walsh v. Dunn, 34 111. App. COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 455 hand there are cases which decide that if the covenantor deems the title indefensible and chooses to abandon it to the adverse claimant, the covenantee has no right to saddle him with the costs of an unprofitable litigation by defending the suit, 39 especially where it was clear that defense would be useless, and the covenantor noti- fied the covenantee not to defend. 40 It may be doubtful whether the want of notice to defend, or the refusal of the covenantor to defend when notified, is proper to be considered in determining the right of the covenantee to costs. There would seem to be no obligation upon the covenantee to relinquish the estate to the adverse claimant and lose the benefit of his improvements and the increase in value of the 'premises, merely because the covenantor is unwilling or unable to litigate the title. And it would seem that the right of the covenantee to protect his bargain, should be deemed to have been fully within the contemplation of the parties at the time the covenant was made, and the costs thence accruing to have been within the intent and purposes of the covenant. For these reasons, in addition to those first stated, it is believed that the covenantee is entitled to recover the taxed costs incurred by him in defending the title, whether the covenantor was or was not notified to defend, and whether he neglected or complied with the notice. 41 The grantee will not be entitled to costs of defending the title if the grantor instead of conveying with warranty, merely cove- nants to return the purchase money, if the grantee is evicted. 42 Neither can he recover such costs unless they were incurred in an action to which he was a party of record and in which his title 146. Teague v. Whaley, 20 Ind. App. 26; 50 N. E. 41; Jeffords v. Dreisbach, 168 Mo. App. 577; 153 S. W. 274; Helton v. Asher, 135 Ky. 751; 123 S. W. 285. Whether the notice be to prosecute or defend. Potwin v. Slasher, 9 Wash. 460; 37 Pac. Rep. 710. 39 Terry v. Drabenstadt, 68 Pa. St. 403; Fulweiler v. Baugher, 15 Serg. & R. (Pa.) 55. But see Hood's Appeal, (Pa. St.) 7 Atl. Rep. 137. 40 Matheny v. Stewart, (Mo.) 17 S. W. Rep. 1014. The suit here was against a remote grantor, and the request not to defend was by the immediate grantor. i 41 Mr. Rawle inclines to this view. Covts. for Title (5th ed.), 199, and note 2. "Barnett v. Montgomery, 6 T. B. Mon. (Ky.) 332. 453 MARKETABLE TITLE TO REAL ESTATE. was passed upon. 41 Nor can he recover costs incurred in a suit against a mere trespasser or in a suit against himself by an adverse claimant in which he is successful, for the covenant of warranty is not broken by a tortious disturbance, nor by the assertion of adverse claims. 44 If the covenantor was not seized, and the cove- iiantee nevertheless enter on the land, and the real owner recover against him in trespass, the covenantee cannot recover the costs and damages so incurred in an action on the covenant of seisin. 45 Nor will the covenantee be allowed the costs of a suit against himself by one to whom he had conveyed the land, and who was evicted. 46 Where the warrantor expressly agreed to pay any costs that might be incurred in defending the title, he was held liable for such costs, though not made a party to the adverse claimant's suit. 47 The right of the grantee to recover costs expended in defending the title is not affected by the fact that he did not take the initiative and proceed against the adverse claimant. He is not bound to follow the advice or request of the grantor to sue one who sets up an adverse claim to the premises. He may subject himself to suit by resisting or interfering with such claimant, without losing his right to recover the costs of such suit from the grantor. 48 The covenantee, it seems, is as much entitled to recover as damages, costs incurred in a suit by him to recover possession from an adverse claimant, as those incurred in defending a suit by the latter, 4 ' provided the suit was brought against the adverse claimant with the concurrence of the covenantor. 60 44 Harding v. Larkin, 41 111. 413. 44 Christy v. Ogle, 33 111. 295. Smith v. Parsons, 33 W. Va. 644 ; 11 S. E. Rep. 68. Kane v. Fisher, 2 Watts (Pa.) 246. Hoffman v. Dickson, 65 Wash. 556; 119 Pac. 737; Ann. Cas. 1913 B, 869. "Cushman v. Blanchard, 2 Or. (Me.) 266; 11 Am. Dec. 76. Stark v. Olney, 3 Oreg. 88. "Hedrick v. Smith, (Tex.) 14 S. W. Rep. 197. The case does not show whether the promise was made before or after the warranty. * Smith v. Sprague, 40 Vt. 43. Sutherland Dam. 303. La*well L. & L. Co. v. Langdon, (Mo. App.) 204 S. W. 812; Burrhfleld v. Brinkman, 92 Kan. 377; 140 Pac. 894. Kyle v. Fauntleroy, 9 B. Mon. (Ky.) 620. See, also, Dale v. Shively, 8 Kans. 276. Kingabury v. Smith. 13 N. H. 125. There the court said: "The principk? dedwible from the caws cited would seem to be that the grantee in an action upon a covenant of warranty, exprem as in a deed, or implied COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 457 As the covenant does not extend to baseless claims, it has been held that the covenantee is not entitled to recover, on the warranty, costs and expenses incurred by him in prosecuting a suit to quiet his title against the heirs of a widow of a former owner, who had forfeited her dower right to the granted premises by electing to take the homestead right in other lands of her husband, instead of dower. 61 It seems that special agreements to indemnify the vendee for all costs and damages of any kind" which he may sustain in case of eviction, are not merged in a subsequent conveyance to him with covenants for title ; 52 and if the covenantee be evicted, he may recover all costs and expenses incurred in defending the title, with- out regard to the question of notice to the covenantor to defend. 53 In order to recover costs and expenses of defending the title as a part of his damages, the covenantee is not required to show that an account of the same was presented to the defendant and pay- ment thereof demanded before suit on the covenant was begun. 54 Nor is it necessary that the covenantee shall show that he has actually paid the costs and expenses of defending the title; he is as upon the sale of personal property, is entitled to recover, as part of his damages sustained by reason of the failure of the title conveyed, the rea- sonable and necessary expenses incurred in a proper course of legal proceed- ings for the ascertainment and protection of his rights under the purchase, as well as a reasonable compensation for his trouble, and expenses to which he may have been put in extinguishing a paramount title. And it seems to us that there can be no sound distinction between the case in which the expenses are incurred in the necessary and proper prosecution of a suit for such ascertainment and protection- of the purchaser's rights, and the case of a defense made for the same purpose. In Yokum v. Thomas, 15 Iowa, 67, it was held that the covenantee could not recover costs incurred in a suit to vacate an invalid patent issued to an adverse claimant of the land. And in Gragg v. Richardson, 25 Ga. 566; 71 Am, Dec. 190, the covenantee was denied attorney's fees paid by him in a suit to recover the land. In Saccoccio v. Sprague, (R. I.) 71 Atl. 1057, the covenantee was allowed the costs and expenses of suits by him to determine the nature and extent of an incum- brance on the property, the covenantor having refused to take any steps in that direction. "Thome v. Clark, (Iowa) 84 N. W. Rep. 701. Compare Smith v. Keeley, 146 Iowa 60; 125 Mo. 669. "Colvin v. Schell, 1 Grant (Pa.), 226. "Cox v. Henry, 32 Pa. St. 21; Anderson v. Washerbaugli, 43 Pa. St. 115. "Tarbell v. Tarbell, 60 Vt. 486; 15 Atl. Rep. 104. 58 458 MARKETABLE TITLE TO REAL ESTATE. entitled to recover costs incurred though not paid. But he cannot recover interest on' unpaid costs. * 174. Counsel fees and expenses. Counsel fees and reason- able expenses incurred in asserting or defending the title, have not been as freely allowed the covenantee as the taxed costs of suit in such cases. There would seem, however, to be no difference in the principles upon which the covenantee's claim is rested in either case. lie is as much obliged to avail himself of the services of counsel, as of those of other officers of the court, in the defense or prosecution of his suit. 56 There is much conflict of authority upon the point. In some cases the covenantee has been permitted to recover the reasonable fees paid by him to his counsel, though no notice of the adverse claimant's suit was given the covenantor and no opportunity given him to assume the defense. 57 In other cases such fees have been denied the covenantee unless notice was given "Walton v. Campbell, 51 Nob. 788: 71 X. W. Rep. 737. "2 Suth. Dam. 308. Taylor v. Holter, 1 Mont. 688. Swett v. Patrick, 12 Me. 9. " Ryerson v. Chapman, 66 Me. 562. This case holds also that the burden is on the plaintiff to show that the fees were reasonable. Harding v. Larkin, 41 111. 422. Haynes v. Stevens, 11 N. H. 28. Pitken v. Leavitt, 13 Vt 379; Turner v. Goodrich, 26 Vt. 709. Dale v. Shivleyt 8 Kans. 276; McKee v. Bain, 11 Kans. 578. (Compare Jewett v. Fisher, [Kan. App.] 58 Pac. 1023.) McAlphine v. Woodruff, 11 Ohio St. 120; Brooks v. Mohl, 104 Minn. 404; 116 X. W. 931; 124 Am. St. Rep. 629, 17 L. R. A. (X. S.) 1195; Solberg v. Robinson, 34 S. D. 55, 147 X. W. 87. Among the foregoing cases are included some in which it appears that the covenantee was not vouched in to defend the adverse claimant's suit, but in which the want of notice to defend was not urged as an objection to the allowance of fees. In Robertson v. Lemon. 2 Bush (Ky.), 301, the vendor had specially covenanted to indemnify the vendee "against all loss, cost and damages growing out of or on account of any defect in the title." Under this agreement $300 counsel fees paid by the covenantee wore allowed him. In Swartz v. Ballon, 47 Iowa. 188, it WHS held that the plaintiff was entitled to "reasonable attorney's fees," but that "reasonable fees" meanl such as had been actually incurred, and that he must show that he had paid, or obligated himself to pay, the fees claimed. Johnson v. Crowley, (Mo. App.) 207 S. W. 235. But in Rickert v. Snyder. 9 Wend. (X. Y.) 419, 423, it was held that the covenantee was entitled to reasonable attorney's free, though the amount actually paid was neither ellegt-d in the declaration, nor proved at the trial. If the, covenantor himxelf disturb the covenantee in the po**emmn, the latter will, in an action for breach of the covenant for quiet enjoyment, be entitled to counsel feet* in resisting the covenantor. Levitzky v. Canning, 33 Cal. 308. COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 459 the covenantor to defend, and was neglected by him. 58 And in still other cases these fees have been refused the covenantee regardless of the question of notice to the covenantor. 59 The fees paid must have been reasonable; it is error to include them in the damages without reference to their reasonableness. 60 Reasonable personal expenses, and compensation for trouble incurred in defending the title have been allowed the covenantee though the covenantor was vouched in to defend the adverse claimant's suit. 61 Counsel fees 68 Orisfield- v. Storr, 36 Md. 150; 11 Am. Rep. 480. Aa an illustration of the widely diverging opinions of judges upon the question of the covenantor's liability for counsel fees as affected t>y the fact, or the absence of, notice to defend, it may 'be noted that the very ground upon which they were allowed in this case, namely, the refusal of the covenantor to defend, is that which is assigned in other cases for refusing the allowance; the argument being that the covenantor should not 'be subjected to expense and trouble if he deems the title incapable of defense. Terry v. Drabenstadt, infra. Barlow v. Delaney, 40 Fed. Rep. 97. Mercantile Trust Co. v. So. Park Residence Co., (Ky.) 22 S. W. Rep. 314. Meservy v. Snell, (lo.) 62 N. W. Rep. 767. Alexander v. Staley, 110 lo. 607; 81 N". W. Rep. 803; Wiggins v. Fender, 132 N". C. 628-; 44 N. E. Rep. 362. Pineland Mtge. Co. v. Trust Co., 139 Mo. App. 209; 122 &. W. 1133; Jeffords v. Dreisbach, 168 Mo. App. 577; 153 S. W. 274. 59 Will?ams v. Burg, 9 Lea (Tenn.), 455. Morris v. Rowan, 2 Harr. (X. J. L.) 309; Holmes v. Sinnickson, 3 Gr. (N. J. L.) 313. Jeter v. Glenn, 9 Rich. L. (S. C.) 374; Ex partj Lynch, 25 So. Car. 193. Brooks v. Black, 68 Miss. 161; 8: So. Rep. 332; Matheny v. Stewart, 108 Mo. 73; 17 S. W. Rep. 1014. Ooleman v. Clark, 80 Mo. App. 3.39. In Turner v. Miller, 42 Tex. 421, it Was held that counsel fees- should never be allowed the covenantee, unless stipulated for; distinguishing Rowe v. Heath, 23 Tex. 620, where the covenantor had specially promised to bear the expense of litigation. Cates v. Field, (Tex. Civ. App.) 85 S. W. Rep. 52. Adams v. Cox, (Tex. Civ. App.) 150 S. W. 1195; Morgan v. Haley, 107 Va. 331, 5S S E. 564, 13 L. R. A. (X. S.) 732, 122 Am. St. Rep, 846; Gremillion v. Roy, 125 La. 524, 51 So. 576; Brawley v. Copelin, 106 Ark. 256, 153 S. W. 101 j Beach v. Nordman, 90 Ark. 63, 117 S. W. 787. "Jones v. Balsley, 154 N. C. 61, 69 S. E. 827. "Leffingwell v. Elliott, 19 Pick. (Mass.) 204; 19 Am. Dec. 343. Among the items allowed in this case were charges for the plaintiff's time, board, livery expenses, expenses of preparation for trial, attendance at court, etc., in the adverse claimant's suit. Merrit v. Morse, 108 Mass. 270; Taylor v. Allen, 131 Ga. 416, 62 S. E. 291. AVhere one tract of land was by mistake conveyed for another, the purchaser was not allowed as part of his damages railroad fares and hotel bills incurred while attempting to make a settlement with the vendor. Doom v. Curran, 52 Kans. 360; 34 Pac. Rep. 1118. The eovenantee has been held entitled to his personal expenses, even though 4GO MARKETABLE TITLE TO REAL ESTATE. for advice and assistance in buying the outstanding title have in some cases been allowed, 62 and in others refused 63 the plaintiff. If the covenantor assume the defense when requested, it has been held that the plaintiff cannot recover attorney's fees; 64 if, how- ever, the covenantor refuse or neglect to defend when notified the right of the plaintiff to recover those items has been asserted in some cases, 65 and denied in others. 66 It has been held that the covenantee will not be entitled to recover attorney's fees and other expenses incurred by him. in getting in an outstanding title to the land. 67 175. NOTICE TO DEFEND OB, PROSECUTE EJECTMENT. If a grantee who has received a covenant of general warranty be evicted in pursuance of the judgment of a court in favor of one setting up an adverse claim to the land, he must show, in an action for breach of the covenant, that the title so established was superior to that derived by himself from the defendant, the covenantor. It would incurml after the covenantor had, upon notice, assumed the defense. Ken- nison v. Taylor, 18 X. H. 220, citing Loomis v. Bedel, 11 N. H. 74; Moody v. Leavitt, 2 X. H. 174. "McKee v. Bain, 11 Kans. 569. Lane v. Fury, 31 Ohio St. 574. " Leilingwell v. Elliott, 10 Pick. (Mass.) 204; 8 Pick. (Mass.) 457; 19 Am. Do-. 343. In these cases, however, the covenantor was allowed for costs and expenses, other than counsel fees. Long v. Wheeler, 84 Mo. App. 101. "Wimberly v. Collier, 32 Ga. 13. Kennison v. Taylor, 18 N. H. 220. "Crisfield v. Storr, 36 Md. 150; 11 Am. Rep. 480; Stark v. OIney, 3 Oreg. 88; Lane v. Fury, 31 Ohio St. 574; Keeler v. Wood, 30 Vt. 242; Swett v. Patrick, 12 Me. 1; Beach v. Xordman, 90 Ark. 59, 117 S. W. 785; Ellis v. Abbott, 69 Oreg. 234, 138 Pac. 488; Rennie v. Gibson, (Okl.) 183 Pac. 483; Jones v. Balsley, 154 X. C. 61, 69 S. E. 827; Culver v. Jennings, 157 N. C. 565, 72 S. K. 1005; Helton v. A*her, 135 Ky. 751, 123 S. W. 285. See Ryer- son v. Chapman, 66 Me. 562, where it was said that Swett v. Patrick, supra, d<>e not decide that costs and attorneys' fees are not recoverable when notice to defend in not given, but merely gives the fact of notice s an additional or conclusive reason why they should be included in the damages. "Terry v. Dral>enstadt, 68 Pa. St. 400, SIIARHWOOD, J., saying: "Without undertaking to lay down any general rule, it would seem to be most reason- able to bold that where a covenantor li.i- been notified to appear and defend, and declines or fails to do so, and the covenantee chooses to proceed and incur costs and expenses in what it may lx presumed that the covenantor considered an unnecessary and hopeless contest, he does so certainly upon his own responsibility." See, also, Fulweiler v. Baugher. 15 S. & R. (Pa,) 56. " Mercantile Trust Co. v. S. Park Residence Co., 94 Ky. 271; 22 S. W. Hep. 314. COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 461 be obviously unjust that the covenantor should be exposed to the danger of collusion between the grantee and the adverse claimant resulting in a judgment of eviction, or that he should be bound by the proceedings in a suit to which he had no opportunity to become a party. It has been held, however, almost universally in America, that if the covenantee, when sued in ejectment by an adverse claimant, notifies the covenantor of the pendency of the suit and requests him to appear and defend it, the latter thereby becomes substantially a party to the suit and bound by the judgment therein rendered, so that the covenantee will, in an action for breach of the covenant, be relieved from the burden of proving that the title established by such judgment was in fact paramount to that of the covenantor, and that in default of such notice the burden devolves upon the covenantee to show that he was evicted by one having a better title. 68 These decisions would * Abbott's Trial Ev. 519; Rawlle Covts. for Title (5th ed.), 117. Salle v. Light, 4 Ala. 700; 39 Am. Dec. 317, case of personal property. Hinds v. Allen, 34 Conn. 185, 195. Gragg v. Richardson, 25 Ga. 566; 71 Am. Dec. 190; Clements v. Collins, 59 Ga. 124; Haines v. Fort, 93 Ga. 24; 18 S. E. Rep. 994; Phillips v. Cooper, 93' Ga. 639; 20 S. E. Rep. 78; Claycomb v. Munger, 51 111. 373; Morgan v. Muldoon, 82 Ind. 347; Bever v. North, 107 Ind. 545; Jones v. Waggoner, 7 J. J. Marsh. (Ky. ) 144; Graham v. Dyer, (Ky.) 29 S. W. Rep. 346; Elliott v. Sanfly, 89 Ky. 57; 11 S. W. Rep. 200, Jones v. Jones, (Ky.) 7 S. W. Rep. 886; Chenault v. Thomas., 26 Ky. L. Rep. 1029; 83 S. W. Rep. 109; Jackson v. Marsh, 5 Wend. (N. Y.) 44, a case in which the covenantee confessed judgment in favor of the adverse claimant. Davis v. Wilbourne, 1 Hill L. (S. C.) 28, case of personal property. In Buckels v. Mouzon, 1 Strobh. L, (S. C. ) 448., it was held that a judgment by default against the covenantee would not bind the covenantor, though notified to defend. And in Middleton v. Thompson, 1 Spear L. (S. C.) 67, it was held that it must appear that the title was put in issue. Greenlaw v. Williams, 2 Lea (Tenn.), 533; Bank of Winchester v. White, 114 Tenn. 62; 84 S. W. Rep. 697.; Groesbeck v. Harris, 82 Tex. 411; 19 S. W. Rep. 850; Somers v. Schmidt, 24 Wis. 419; 1 Am. Rep. 191; Wallace v. Pereles, 109 Wis. 316; 85 N. W. Rep. 371; Long v. Howard, (Minn.) 53 N. W. Rep. 1014; Fitzpatrick v. Hoffman, (Mich.) 62 N. W. Rep. 349. It is immaterial upon what title the covenantee was evicted if the covenantor wasi notified to defend. Wendell v. North, 24 Wis. 223. Notice to defend a suit for dower binds the covenantor. Terry v. Drabenstadt, 68 Pa. St. 400. If the cove- nantee neither notifies his covenantor, nor avails himself of a valid defense which the covenantor might have made, the latter may avail himself of such defense in an action on the covenant. Walton v. Cox, 67 Ind. 164. A decision of arbitrators adverse to the covenantor's title, rendered without notice of 4()2 MARKETABLE TITLE TO REAL ESTATE. seem necessarily to assume that in the States in which they were rendered some provision of law or some practice existed by which the covenantor when notified to appear could procure himself to be admitted as a party defendant to the suit, though it is not necessary that he should be a party to the suit to be bound by the notice." In North Carolina it has been held that judgment of eviction rendered after notice and request to the covenantor to appear and defend was in no way conclusive upon him, inas- much as there was no law or rule, or practice by which he might be made a party to the suit. 70 The better opinion, however, seems the arbitration to the covenantor, is not binding upon him. Prewdtt v. Ken- ton, 3 Bibb (Ky.), 282. In Texas the covenantee, when sued by an adverse claimant, is not only allowed to implead the covenantor and bind him by the result, but he may have judgment over against the covenantor for breach of warranty in case the adverse claimant establishes his title and obtains judgment; and this to prevent multiplicity of actions. Kirby v. Estell, 75 Tex. 485; 12 S. W. Rep. 807; Johns v. Hardin, (Tex) 16 S. W. Rep. 623. Such a practice is, of course, inadmissible under common-law systems of procedure. In a case in Texas in which, after the warrantor had been vouched in to defend, his co-defendant, the warrantee, amended his answer so as to claim judgment over against the warrantor in case of an eviction, it was held that the latter, having received no notice of the amendment, was not bound by a judgment for breach of warranty rendered against him in pursuance of such amendment. The only effect of the pleadings, as they stood, wa* to make the judgment against the warrantee conclusive of the question of paramount title in the evictor. Mann v. Matthews, 82 Tex. 98; 17 S. W. Rep. 395. Recent Cages. Carpenter v. Carpenter, 88 Ark. 169, 113 S. W. 1032; Cox v. Bradford, 101 Ark. 302, 142 S. W. 170; McCormick v. Marcy, 165 Cal. 386, 132 Pac. 449; White v. Stewart & Co., 131 Ga. 460, 62 S. E. 590; Taylor v. Allen, 131 G*. 416, 62 8. E. 291; Brooks v. Winkles, 139 Ga. 732, 78 S. E. 129; Ashburn v. Watson, 8 Ga. App. 566, 70 S. E. 19; McDonnell v. Downs, 48 111. 271; Harding v. Sucher, 261 111. 284, 103 N. E. 1019; SarlU v. Beck- man, 55 Ind. App. 638, 104 N. E. 598; BolU-nbachcr v. Lee (Ind. App.) 121 X. E. 663; Richstein v. Welch, 197 Mass. 224, 83 N. E. 417; Talbert v. Grist, 198 Mo. App. 492, 201 S. W. 906; Faasler v. Streit, 100 Xeb. 722, 161 N. W. 172; Estep v. Bailey, (Oreg.) 185 Pac. 227; Brader v. Zbranek, (Tex. Civ. App.) 213 S. W. 331; Farwell v. Bean, 82 Vt. 172, 72 Atl. 731; Norfolk & W. R, Co. r. Mundy, 110 Va. 422, 66 S. E. 61; Kapiolani Est. v. Atclierly, 238 U. S. 119, 31 S. C. 832, 59 L. ed. 1229, Ann. Cas. 1916 E. 142. Wolfe v. Land Co., 265 Fed. 503, "William* v. Shaw, N. C. Term. Rep. 197; 7 Am. Dec. 706; Shober v. Robinson, 2 Murph. (N. C.) 33; Wilder v. Ireland, 8 Jones L. (N. C.) 88; Saunders v. Hamilton, 2 Hayw. (N. C.) 282; Martin v. COWPH, 2 Dcv. & Bat. COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 463 to be that it is the duty of the covenantor to appear upon notice and request and furnish all the aid and information in his power for the successful maintenance of the suit, and that having done so, he may avail himself of the judgment therein rendered, though not actually a party to the suit. 71 Judgment against the covenantee in trespass, as well as in ejectment, binds the cove- nantor if he has been notified of the suit and requested to defend. 72 So, also, in trespass to try title, 73 and in foreclosure proceedings. 74 The covenantee, by giving the proper notice and request to defend, is not only relieved from the burden of showing that the judgment under which he was evicted was founded upon a para- mount title, but the covenantor will not, in the absence of fraud or collusion, be permitted, when sued for a breach of his covenant, to dispute the title of the ejectment plaintiff, or show a better L. (N". Car.) 101, the court saying: "In our opinion the record of the judg- ment is not only not conclusive evidence, but it is not any evidence of title against the vendor. It would be repugnant to principle to bind any one by a judgment in a suit where, if an opposite judgment had been rendered, he could derive no benefit from it, to which suit he was not a party, and where he could not challenge the request nor examine witnesses, nor exercise any of the means provided by law for ascertaining the truth and asserting his right. In real actions a warrantor might be made a party by voucher; in ejectment a landlord may come in to defend the possession of his tenant, but there is no provision of law by which a vendor can be brought in to vin- dicate the possession of his vendee. To a judgment against the vendee, the vendor is a, stranger, and, therefore, that judgment is against him evidence only of the fact of the judgment and of the damages and costs recovered." 71 Chamberlain v. Preble, 11 Mlass. 375, where it is said: "If he does not assume the defense, it is at least his duty to communicate all information in his power as to the validity of the plaintiff's title. If he fails to do so, if he stands by and permits a recovery for want of evidence of which he has knowledge, he cannot be (permitted to show that the result would have been otherwise if the evidence had been produced, and so avoid the effect of a recovery in a suit against him. If he pays no attention to the notice, and turns his back upon the suit, he cannot, when called upon to respond, be permitted to prove that the defendant in the original suit would have pre- vailed if the defense had been conducted with a fuller knowledge of material facts." Under a statute permitting the landlord to be made defendant when the tenant is sued in ejectment, a vendor who warranted the title cannot insist on being substituted as defendant. Linderman v. Berg, 12 Pa. St. 301. "Merritt v. Morse, 108 Mass. 270. "Johns v. Hardin, (Tex.) 16 S. W. Rep. 623. "Collier v. Cowger, 52 Ark. 322; 12 S. W. Rep. 702. 464 MAKKETABLE TITLE TO HEAL ESTATE. title in himself. 75 The notice and request make him a privy to the action, and he is bound whether he does or does not appear and defend. 7 ' In a case in which he did not appear after notice and request, he was concluded, though the suit in which the adverse title was established was decided upon an agreed state of facts which was erroneous, and which, if it had been correctly stated, would have defeated the adverse title, the agreed statement of facts having been made in good faith and without collusion. 77 Notice to the covenantor to appear and defend the suit by the adverse claimant is not necessary where he is made a party defendant to the suit, and served with a copy of the summons. 78 Notice should be given to the covenantor himself. Notice to his agent, appointed to collect the purchase money, is insufficient. 79 Notice to the personal representative of the covenantor need not be given if the covenantor was properly notified during his life- "Merritt v. Morse, 108 Mass. 270, citing Shears v. Dusenbury, 13 Gray (Mass.) 292; Chamberlain v. Treble, 11 Allen (Mass.), 370, and Haven v. Grand June. R. Co., 12 Allen (Mass.), 337. Cooper v. Watson, 10 Wend. (N. Y.) 205; Morris v. Rowan, 17 N. J. L. 307, obiter; Ives v. Niles, 5 Watts (Pa.) 323; Middleton v. Thompson, 1 Spear L. (S. C.) 07; Wilson v. McElwee, 1 Strobh. L. (S. C.) f>5; Williams v. Burg, 9 Lea (TVnn.), 455; Williams v. Weatherbee, 2 Aik. (Vt.) 357; Wendel v. North, 24 Wis. 2X. The foregoing decisions are rested upon the familiar principle enunciated by BULLRR, J., in the leading case of Duffield v. Scott, 3 Term Rep. 374, namely: "If a demand is made which the person indemnifying is bound to pay, and notice is given to him, and he refuses to defend the action, in consequence of which f the covenant for quiet enjoyment. A lessee claiming that he has been evicted from a ground rent, must show that his tenancy has bee,u COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 475 brought by the true owner against the covenantee is a breach o the covenant for quiet enjoyment, while there is no breach of the covenant of warranty until the action has resulted in an eviction. 35 A suit in equity in which it is sought to deprive the covenantee of his estate is as much a breach of the covenant for quiet enjoyment as an action of ejectment, or other possessory proceeding. 36 So, also, a suit in which a stranger is adjudged to be a tenant in com- mon with the covenantee. 37 The principal use and employment of this covenant, therefore, is in the creation and conveyance of estates for years. It is broken only by an actual disturbance of the possession by one having a better right, 38 unless the disturbance was by the lessor himself or his agents. In the latter event the covenant is broken without regard to the question of paramount title. 39 With respect to the acts of the lessor, it is immaterial that the lease does not contain an express covenant for quiet enjoyment. Such a covenant will- always be implied from 4he lease itself in case of a tortious disturbance by the lessor. 40 The covenant for quiet enjoyment like the covenant of warranty, is not a covenant that the grantor is seised of an idefeasible estate. Therefore, it is not broken where the grantor, purporting to con- vey a fee, had only a life estate, so long as the grantee remains in the undisturbed possession of the life estate. 41 successfully interfered with. A mere suit to prevent him from using the premises for particular purposes will not amount to a breach of the covenant. Jarden v. Lafferty, (Pa. St.) 7 Atl. Rep. 743. The covenant is not broken by a proceeding which interferes only with a particular mode of enjoyment of the premises. Rawle Covts. (5th ed.), 130. Possession by a tenant under an unexpired lease operates a breach of this covenant. Morris v. Hesse, (Tex. Civ. App.) 210 S. W. 710. In Simonds v. Diamond Match Co., 159 Mich. 241; 123 N. W. 1132, it was held that such possession was: a breach of the cove- nant for quiet enjoyment, but not a breach of the covenant of warranty. 35 Stewart v. West, 14 Fa. St. 336. N. Y. Etc. Coal Co. v. Graham, 226 Pa- 348; 75 Atl. 657. M Sugd. Vend. (14th ed.) 601; Rawle Covts. (5th ed.), 130. 3 " Black v. Barto, 65 Wash. 502; 118 Pae. 623; Ann. Cas. 1913 B, 846. * Ante, 142. 19 Moore v. Weber, 71 Pa. St. 429; 10 Am. Rep. 708. 40 Dexter v. Manly, 4 Gush. (Mass.) 14. "Wilder v. Ireland, 8 Jones L. ('N. C.) 88. Of course, if the life estate has fallen in and the reversioner has entered, the covenant is broken. Parker V. Richardson, 8 Jones L. (N~. C.) 452. CHAPTER XV. COVENANT FOR FURTHER ASSURANCE. IN GENERAL. 178. BREACH. ESTOPPEL. ASSIGN ABILITY. DAMAGES. 179. 178. IN GENERAL. This covenant is usually expressed in the following words: "And that he, the said" (grantor), shall at all times hereafter, at the request and expense of ;the said (grantee), his heirs and assigns, make and execute such other assurances for the more effectual conveyance of the said premises as shall be by him reasonably required." It is one of the six covenants inserted in conveyances in those States or localities in which it is customary to employ all of the " full " or " usual " covenants for title. Actions at law for breach of the covenant for further assurance are of infrequent occurrence, and few cases of that kind are to be met with on this side of the Atlantic. The remedy upon the covenant is usually sought in equity; 2 that is, to compel the vendor to execute the further assurance, or, it seems, to remove an incumbrance from the premises.* The exe- cution of the further assurance will, of course, operate to pass any estate which the vendor may have acquired after the execution of the original conveyance. It is to be observed, however, that the terms " general " or " special " as descriptive of the other covenants for title is not applicable to the covenant for further 1 Rawle Covts. (5th eml to make title. Vick v. Percy, 7 Sm. & M. (Miss.) 256; 45 Am. Dec. 303; Walker v. Cillp.it. 7 Sm. & M. (Miss.) 456; Hoy v. Taliaferro, 8 Sin. & M. (Miss.) 7J7 . McDonald v. Green, 9 Sm. & M. (Miss.) 138, semble; Duncan v. Lane, 8 Sm. & M. (Miss.) 744; Gilpin v. Smith, 11 Sm. & M. (Miss.) 129; Heath v. N.-u- man, 11 Sm. & M. (Miss.) 201; Dennis v. Heath, 11 Sm. & M. (M 49 Am, Dec, 61; Johnson v. Jones, 13 Sm. & M. (Miss.) 580; Wailes v. Cooper, 24 Miss. 232; Harris v. Rowan, 24 Miss. 504; \Vinslead v. Davis, 40 Mi. 7v">; Wan- v. Hmighton, 41 Miss. 382; 93 Am. Dec. 2.">S, where, however. the warranty was of title to a slave; Guice v. Sellers, 43 Miss. 52; 5 Am. Rep. 476; Miller v. Lamar, 43 Miss. 382. Cooley v. Rankin, 11 M... f. !7: I'onnor v. Kihly, 25 M<>. 7'>; Wellman v. Dismukes, 42 Mo. Kl: Kddington v. Nix, 49 Mo. 134; Wheeler v. StHi.dley, 40 Mo. /in : Mit.-h.-ll v. \|. -Mullen, 50 Mo. 252; Hart v. Hailma.l Co., 65 Mo. 509; Key v. Jennings, 66 M... :Oi: Hunt v. Marsh, 80 Mo. 398; Dudley v. Waldn.p. ( M... A pp.) 183 S. W. Hi!ir,. A purrhaser \\h< accepts a conveyance from a stranger thereliy \\aivcs hi-t right to recover from the vendor numex pai.l in rrmo\ ing incumbranecs from the land. Herryford v. Turner, 67 Mo. 296. To the text: Mills v. Saunderb, DETENTION OF PURCHASE AIO.XEY BREACH OF COVENANT. 485 4 Neb. 190. Perkins v. Bamford, 3 X. H. 522; Getchell v. Chase, 37 X. H. 106; Drew v. Towle, 7 Fost. (X. H.) 412; 54 Am. Dec. 309, where the rule stated in the text was held to apply only where there has been a total failure of the consideration. To the text: Beach v. Waddell, 4 Halst. Ch. (X. J.j 299. Kuhnen v. Parker, 56 X. J. Eq. 286; 38 Atl. Rep. 641; Gihon v. Morris, 90 N". J. Eq. 230; 106 A. 807. In Cooper v. Bloodgood, 32 X. J. Eq. 209, it was held that the necessity of obtaining a lease of riparian rights from the State could not be held an eviction entitling the covenantee to detain the purchase money where he might have obtained the land itself by appro- priation. To the text: Bumpuss v. Platner, 1 Johns. Ch. (1ST. Y.) 213; Abbott v. Allen, 2 Johns. Ch. (X. Y.) 510; 7 Am. Dec. 554; Woodruff v. Bunce, 9 Paige Ch. (X. Y.) 443; 38 Am. Dec. 559; Miller v. Avery, 2 Barb. Ch. (X. Y.) 594; Woodworth v. Jones, 2 Johns. Cas. (X. Y.) 417; Lattin v. Vail, 17 Wend. (X. Y.) 183; Whitney v. Lewis, 21 Wend. (X. Y.) 131; Tallmadge v. Wallis, 25 Wend. (X. Y.) 118; Edwards v. Bodine, 26 Wend. (X. Y.) 109; Batterman v. Pierce, 3 Hill (X. Y.), 171; Lamerson v. Marvin, 8 Barb. (X. Y.) 14; Farnham v. Hotchkiss, 2 Keyes (X. Y.), 9; Ryerson v. Willis, 81 X. Y. 277; Gifford v. Society, 104 X. Y. 139; 10 X. E. Rep. 39; Dunning v. Leavitt, 85 X. Y. 30; 39 Am. Rep. 617; Clanton v. Surges, 2 Dev. Eq. (X. C.) 13; Wilkins v. Hogue, 2 Jones Eq. (X. C.) 479; Crowell v. Jones, 167 X. C. 386; 83 S. E. 551. In Mills v. Abraham, 6 Ired. (X. C.) 456, it was held that a purchaser with full knowledge of the defective title, and taking covenants for his protection, could not resist the payment of the purchase money if the covenants were broken. In Ohio the purchaser is by statute permitted to retain the possession and defend a suit for the pur- chase money by bringing in the person claiming an adverse estate or interest, so that the rights of all parties may be adjusted in the same action. Rev. Stat. Ohio, 1884, 5780. Before the enactment of that statute the rule was as stated in the text. Stone v. Buckner, 12 Ohio, 73; Edwards v. Xorris, 1 Ohio, 524; Hill v. Butler, 6 Ohio 216. Under the same statute the pur- chaser might have deducted from the purchase money by way of counter- claim the amount of an incumbrance on the premises discharged by him. Craig v. Heis, 30 Ohio St. 550. For the construction of this statute see Templeton v. Kramer, 24 Ohio St. 554. In Purcell v. Heerny, 28 Ohio St. 39, it was held that, independent of such statutory provision, the purchaser must show an eviction before he can claim, relief against payment of the purchase money. To the text: Fellow's v. Evans, 33 Oreg. 30; 53 Pac. Rep. 491; Failing v. Osborne, 3 Oreg. 498. In this case a stipulation of the vendors that " if it should be adjudged that they had no legal right to sell, and if the purchaser by reason thereof be legally compelled to give up the premises," they should refund the purchase money, was given the effect of a covenant of warranty, and the purchaser held not entitled to detain the purchase money unless there had been an actual or constructive ouster. The Penn- sylvania decisions on the point stated in the text will be found post, 271. In an action on a purchase-money mortgage the defendant may set off dam- ages arising from a breach of warranty of the title, but he will not be entitled to interest on such damages if he remain in possession, even though a judgment in ejectment had been recovered against him. Wacker v. Straub, 486 MARKETABLE TITLE TO EEAL ESTATE. "Generally speaking," says Sugden, "a purchaser, after a con- veyance, has no remedy except upon the covenants ho has obtained, although evicted for want of title; and however fatal the defect of title may be, if there is no fraudulent concealment on the part of the seller, the purchaser's only remedy is under the covenants." 4 Practically the same rule exists in many of the American States, with this qualification, that in any case in which there has been a breach of the covenants which the purchaser has received, for which he would be entitled to recover substantial damages, he may in an action against him for the purchase money recoup the amount 88 Pa. St. 32. Price v. Hubbard, 8 S. Dak. 92; 65 X. W. Rep. 436. To the text: Elliott v. Thompson, 4 Humph. (Tenn.) 90; 40 Am. Deo. 630; White v. Ewing. 69 Fed. 451: Young v. Butler, 1 Head (Tenn.), 640, the court saying: " From the facts in this record we have no doubt that it was the purpose of the purchaser from the beginning to obtain the deed and the possession of the property without paying for it until such time as it suited his convenience to do so,'' a remark applicable to a large percentage of injunctions against the collection of the purchase money. The fact that the vendor's title is merely equitable will not entitle the purchaser to detain the purchase money. The subsequently acquired legal title will enure to the benefit of the purchaser under the vendor's covenant of warranty. MeWhirter v. Swaffer. 6 Baxt. (Tenn.) 3-12. In MeXew v. Walker, 3 Humph. (Tenn.) 186, the vendor having only a life estate in the premises conveyed" the same in fee with general warranty. The court refused to enjoin the collection of the purchase money, there being no fraud and- no eviction alleged. Wcster- velt v. Menly, (Tex. Civ. App.) 216 S. W. 680. In Texas Ry. Co. v. Gentry, 69 Tex. 625; 8 S. W. Rep. 98, it was held that a purchaser of a railroad property with warranty could not resist the payment of the purchase money on the ground that certain rights of way enjoyed by the company had not been acquired, if proceedings for compensation by the true owtier were barred by the Statute of Limitations. For the Texas doctrine relating to detention of the purchase money, see post, 8 189. To the text: Dix v. School Dist., 22 Vt. 309, semble. As to the rule governing the right of the purchaser to detain the purchase money, as enforced in Virginia, where the title is found to be bad, after the acceptance of a conveyance, see post, 337. To the text: Hoyt v. Rothe, 95 Wash. 369; 163 Pac. 925; Dignan v. West. 71 W. Va. 296; 76 S. E. 661; Horton v. Arnold, 18 Wis 212; Ejiton v. Tallmadge, 22 Wis. 626; Smith v. Hughes, 60 Wia. 620; 7 N. W. Rep. 653: Bardeen v. Markstrum. 64 Wis. 613; 26 N. W. Rep. 665. CampMl v. Medbury, 5 Bins. (C. C.) 33. In Hall v. Gale, 14 \VU. 54, and Walker v. Wilson, 13 Wis. 522, the nnn-exintence of a right to raise the water in a mill dam to a specified height, the purchaser having been enjoined by the adjacent proprietors, was hold a breach of the covenant of warranty entitling him to detain tho purchase money. 4 Sugd. Vend. (8th Am. ed.) 3*3 (251); 2 id. 193 (549). DETENTION OF PURCHASE MONEY BREACH OF COVENANT. 487 of those damages from the plaintiff's demand. 5 But so long as there has been no such breach of the covenant of warranty, or for quiet enjoyment, or against incumbrances, as would entitle the covenantee to recover substantial damages against the covenantor, the former cannot, either at law or in equity, resist the payment of the purchase money. In some of the States, however, as will hereafter be seen, the rigor of this rule is relaxed where suit is threatened or prosecuted by the adverse claimant, or where from non-residence or insolvency of the covenantor, judgment against him for breach of his covenant either cannot be obtained, or, if obtained, will prove an unavailing remedy. 6 An illustration of the rule stated in the foregoing proposition is afforded by the early and leading case of Abbott v. Allen. 7 There the purchaser entered under a conveyance with covenants of seisin and general warranty, and executed a mortgage to secure the deferred payments of the purchase money. When the mortgage was about to be enforced, the purchaser prayed an injunction against the sale of the premises, but set out in his bill of facts which went no farther than to show that his title was doubtful or unmarketable. The injunction was dissolved by Chancellor JAMES KENT, who said that " it would lead to the greatest inconvenience and perhaps abuse, if a purchaser in the actual enjoyment of land, when no person asserts or takes any measures to assert a hostile claim, can be permitted on suggestion of a defect or failure of title, and on the principle of quia timet, to stop the payment of the purchase money, and of all proceedings at law to recover it." Of course if the deed contain an express provision that the purchase money may be detained or abated if adverse claims or incumbrances should be asserted against the property, the rule restricting the purchaser to his covenants in case the title fails does not apply. The purchaser is at liberty to protect himself by special 5 Ante, cases cited n. 3, p. 481. Post, chs. 26 and 34. In White v. Ewing, 69 Fed. Rep. 451, it was held that the insolvency of the grantor could not be availed of as a defence to an action for the purchase-money, if the grantor's grantor, who had conveyed with general warranty, was solvent. 7 2 Johns. Ch. (N. Y.) 519; 7 Am. Dec. 554. 488 MARKETABLE TITLE TO KEAL ESTATE. covenants or agreements; 8 and these it is apprehended will prevail over the usual and formal covenants for title contained in the deed, if inconsistent with them. An important exception to the general rule that a purchaser who has received a deed' with covenants of general warranty can- not detain the purchase money unless he has been evicted, exi-t- where the deed conveys an unknown, uncertain and undetermined interest in the land, and the grantee has never been let into posses- sion. Thus where the grantor conveyed all of his " right, title and interest in and to a certain undivided tract of land," with general warranty, and it appeared that he had no interest whatever in tin- land conveyed, that fact was held a complete defense to an action for the purchase money. 9 It has been held that the right to set up a breach of warranty as a defense to an action for the purchase money is not affected by the fact that the land was conveyed by the defendant's direction to a third party, and the warranty made to him. 10 If the purchaser agrees to take his title from a third person who has nothing to do with the bargain, and accepts Platt v. Gilchrist, 3 Samlf. (X. Y.) 118, where the court said: " The possi- bility that the title might fail and the purchaser be evicted, was in the minds of the parties. They might also have provided that in case of a claim being made by title paramount before actual payment of the consideration money. the right of the vendor to call for its payment should be suspended. But this thc-y have. not thought proper to do, and this court can with no moro propriety add such a clause to the contract and suspend the collection of the purchase money, than it can suspend the collection of rent expressly nanted to be paid, upon the destruction of the huildinps. where the panic-* have not themselves provided against it." In Walter v. Johnson, 2 Kiev. the deed contained a provision that the purchase money should be abated if the grantee had to pay for the release of any adverse claim against the property. The court, held that tlie words "ndvcr>e claim " meant a valid and paramount title, and that 1he grantee was not entitled to credit for a sum paid to a claimant without color of title. In Chaplin v. Briscoe, 11 Sm. A M. (Mi-s.) .172, where the deed contained a similar stipulation, it was held that the covenanter niijrht avail himself of the defense of failure of the till. though he had conveyed away his interest in the premises to a stranger. Ix-wi-i v. Wr-t. -2:\ Mo. Ajip. -1 !!.">. the court saying that "to such a would seem to apply the principle on which i based the rule that the nant- !' -i i-in (warranty nlso) are lirokcn a< >.on as made when the land convoyed is in the : : at the date of the deed under a paramount title, and substantial damages are recoverable by the grantee.' "Bottorf v. Smith, 7 Ind. 673. DETENTION OF PURCHASE MONEY BREACH OF COVENANT. 489 that person a conveyance with covenants for title, he must look to those covenants for redress if the title fails, and cannot on that ground defend an action by the vendor to recover the purchase money. 11 Whatever judgment is rendered on the defendant's plea setting up a breach of covenant in an action against him for the purchase money, whether against him or in his favor, will be res adjudicate of his rights with respect to the alleged breach, and will estop him from afterwards maintaining an action on the covenant to recover damages for the breach. 12 The purchase money cannot be detained in a case in which the covenantee has executed a release of warranty to his grantor. 13 The rule that a grantee with covenants of warranty cannot resist the payment of the purchase money until actual or threat- ened eviction, does not apply where the grantor pointed out, at the time of the sale, incorrect boundaries, enclosing more land than was actually conveyed. 14 The answer of the grantee setting up a breach of the grantor's covenants for title in an action to recover the purchase money, must contain an offer to reconvey the premises to the grantor. 10 181. MERGER OF PRIOR AGREEMENTS. The principle upon which these decisions largely rest is that the purchaser by demand- ing covenants for title and receiving them has provided his remedy in case the titlt, fails, and that in those covenants are merged all prior agreements of the parties respecting the title, whether oral or written, that are inconsistent with them. 16 There are excep- 11 Leonard v. Austin, 2 How. L. (Miss.) 888. "Tallmadge v. Wallis, 25 Wend. (N. Y.) 116. Tillotson v. Grapes, 4 N. H. 444, 449. "White v. Furtz\vangler, 81 Ga. 66; 6 S. E. Rep. 692. 14 King v. Bressie (Tex. Civ. App.), 32 S. W. Rep. 729. This decision might well be rested upon the ground of fraud or mistake of the grantor. 13 Herron v. Harbour, 57 Okl. 71; 155 Pac. 506. 16 Rawle Covts. (5th ed.) 320. Miller v. A very, 2 Barb. Ch. (N. Y.) 582, where it was said that the doctrine of merger applied as well in equity as at law. Hunt v. Amidon, 4 Hill (N. Y.), 345; 40 Am. Dec. 283. Bryan v. Swain, 56 Cal. 616. Little v. Thropp, 245 Pa. 539; 91 Atl. 924. A verbal agreement between the parties at the time of the execution of a deed with warranty and a purchase-money note and mortgage payable in ninety days, that if within the ninety days the title be found bad it may be rejected, has 62 490 MARKETABLE TITLE TO REAL ESTATE. tions to this doctrine of merger, however; namely, that promises made by a vendor, after the execution of a conveyance but before it has been delivered and accepted, that he will discharge incum- brances on the premises are not merged in the conveyance after- wards accepted. Xor are such promises within the Statute of Frauds or obnoxious to the rule that evidence of a contempora- neous verbal agreement will not be received to alter the terms of a written contract. 17 Collateral stipulations of which the convey- ance is not necessarily a performance, are not conclusively pre- sumed to have been merged in the conveyance. Thus, an agree- ment by the purchaser to pay off an existing mortgage on the been held to be merged" in the deed and not available as a defense to the foreclosure of the mortgage if the title be found bad. Jewell v. Bannon, 12 Pa. Co. Ct. Rep. 399. In Beard v. Dalaney, 35 Iowa, 16, the vendor conveyed the premises with general warranty, and also executed a title bond con- ditioned to perfect the title within a reasonable time. This was not done and a judgment was recovered on the bond. The point that the title bond wan merged in the conveyance was not raised. The court held that the pur- chaser could not recover on the warranty without showing an eviction, but that the same rule did not apply in the action on the title bond. A bond for title is merged in a conveyance subsequently given. Shontz v. Brown, 27 Pa. St. 123. A special covenant in a title bond to indemnify the vendee against all costs, charges and damages, if the land recovered from him under a paramount title, is not merged in a subsequent conveyance of the land with warranty. Cox v. Henry, 32 Pa. St. 18. "In Remington v. Palmer, 62 X. Y. 31, after the execution of the deed, but before it was delivered, a question arose as to which of the parties should pay an assessment on the premises. The vendor having agreed to pay it, the pur- chaser accepted a conveyance. Afterwards, in an action by the purchaser to recover the amount of the assessment from the vendor, the latter set up the defense that his agreement to pay the assessment was merged in the conveyance and that plaintiff could not recover. The defense was adjudged insufficient, the court saying: "It is said that all agreements preceding the delivery of the deed were merged in the same. This position is not a sound one, for while all prior agreements may be merged in the deed when exe- cuted it by no means follows, that, before the contract i fulfilled by a de- livery and acceptance of the deed, that conditions may not be made which are obligatory upon the parties. The deed l>eing ready for delivery, and the plaintiff ready to pay the money, they had a perfect right to exact, as ft condition of fulfilling the contract, that the defendant should pay the MMM ment when it became due. This is not contradicting a written agreement by parol, but evidence of the term* upon which the money wan paid and the conveyance delivered. As the agreement was made after the dwl was exe- cii ted and before delivery there could IK> no merger of this agreement in the Iced." Citing Munlnrk v. Gilchrint, 62 N. Y. 242. DETENTION OF PURCHASE MONEY BREACH OF COVENANT. 491 premises has been held not to have been merged in a subsequent conveyance of the premises with covenants of warranty. 18 Also, that the original provisions of the contract respecting the title, are not merged in the conveyance, unless the same be accepted in com- plete execution of the agreement. 19 A covenant to put the vendee in possession is not merged in a subsequent conveyance with war- ranty. 20 And a contract which expressly provides that its restric- tions and stipulations shall be complied with and carried out as if embodied in the deed, will not be held to have been merged therein. 21 It has been held that an 'executory contract for the exchange of lands is not merged in the deeds of conveyance executed in pur- suance thereof, and that if one of the parties thereto agreed to remove an incumbrance from the land to be conveyed by him, such promise would not be merged in the conveyance when executed. 22 And the better opinion is that fraud on the part of the vendor with respect to the title, is not merged in a subsequent conveyance of the premises with warranty, the grantee accepting the conveyance in ignorance of the fraud. 23 "Reed v. Sycks, 27 Ohio St. 285. Disbrow v. Harris, 122 1ST. Y. 365; 25 N. E. 356. Here the stipulation was that a small portion of the purchase money should be kept back until certain repairs to the premises were made by the grantor. Citing Morris v. Whitcher, 20 N". Y. 41 ; Whitbeck v. Waine, 16 N. Y. 532; Bnnett v. Abrams, 41 Barb. (X. Y.) 619; Murdock v. Gil- christ, 5-2 N. Y. 242. Dillingham v. Estill, 3 Dana (Ky.), 21. "Cavanaugh v. Casselman, 88 Cal. 543; 26 Pac. Rep. 515, where the con- veyance embraced only a part of the purchased premises. Read v. Loftua. 82 Kan. 485; 108 Pac. 850; Davis v. Lee, 52 Wash. 330; 100 Pac. 752; 132 Am. St. Rep. 973. The burden is on the covenantor to show that a particular incumbrance was excepted from the operation of the covenant. X. Y. etc. Coal Co. v. Graham, 226 Pa. 348; 75 Atl. 657. In Sessa v. Arthur, 183 Mass. 230; 66 N. E. Rep. 804, it was held that the purchaser did not waive an express provision in the contract of sale that he was to have a warranty deed free from incumbrances, by accepting a deed declaring the premises to be subject to the incumbrance of a certain passage way between the premises and an adjoining house, and retaining the deed two months without objection to the title. 20 German Am. Real Est. Co. v. Starke, 84 Hun (N. Y.), 430; 32 X. Y. Supp. 403. Williams v. Frybarger, 9 Ind. App. 558. "Xewbold v. Peabody Heights Co., 70 Md. 499; 17 Atl. Rep. 372. 22 Bennett v. Abrams, 41 Barb. (N. Y.) 619, 625. 23 Post, 270, 276. 492 MARKETABLE TITLE TO REAL ESTATE. 182. EFFECT OF PURCHASE WITH KNOWLEDGE OF DEFECT OR INCTJMBRANCE. If a man purchase land knowing that the title is bad or the land is incumbered, that fact, as has been seen, does not affect his right to recover on the covenants for title in his deeds, for it may be that he was induced to purchase because of the security and indemnity from loss afforded by his vendor's covenants. 24 But whether in such a case upon a breach of those covenants he will be suffered to detain the purchase money is a question upon which there has been a conflict of decision. The weight of authority and the better opinion seems to be that ho must pay the purchase money and look to his covenants for relief, 85 except in those cases in which the vendor, after the deed had been executed, but before it had been delivered and accepted expn agreed to remove the incumbrances. Such a promise, it will be remembered, has been held not to be merged in the subsequent conveyance. 26 There are cases which affirm the right of the pur- chaser to detain the purchase money, notwithstanding his accept- ance of a conveyance with notice of the ineumbrance, 27 and it " Ante, 124. Wadhams v. Swan, 109 111. 46. "Wailes v. Cooper, 24 Miss. 208; Gartman v. Jones, 24 Miss. 234; Stone v. Buckner, 12 Sin. & M. (Miss.) 73, obiter. Cummins v. Boyle, 1 J. J. Marsh. (Ky.) 480. Stansbury v. Taggart, 3 McLean (U. S.), 457. In Perkins v. Williams, 5 Coldw. (Tenn.) 512, it was held that the rule stated in the text would apply even though the vendor was insolvent. In Greenleaf v. Cook, 2 Wh. (U. S.) 17, the court said: '"Acquainted with the extent of the im-um- brance and its probable consequences, the defendant consents to receive the title whirh the plaintiff was able to make, and in receiving it execute his note for the purchase money. To the payment of a note given under such circumstances the existence of the ineumbrance can certainly furniwh no legal objection." Per MARSHALL, Ch. J. In Ryerson v. Willis, 8 Daly (N. Y.) 402, a grantee with warranty gave a mortgage on Ihe premises for H balanca of the purchase money, under an agreement that it should not be coll until the grantor >ln>uM procure and deliver to him a quit claim of a certain interest in the premi-e--. The quit claim not having Ix'en delivered the tee brought a suit to canc.-l tin- ni"rtgage. but. the urt held that be \\a- not entitled to that relief, and that his remedy was upon tho covenants in the deed. ThN dcci-inn was rested largely upon the ground that the grantee had purchased with notice of the defective title. "Ante. 5 1S1. Remington v. Palmer. 62 N. Y. 31. "Iii'l'M 1 X. .7. Kq. 461, eiting Tourville v. Na-h. 3 I'. WIT-. WO. Johi. :.-. 2 .Mm*. Cli. (X. Y. ) . r . \fi. Shannon v. MarselK Saxt.. (N. 120] Van W.i;';:,,;!cr v. M< K\\en. 1 Or. (2 N'. J. Eq.) 412. These author!- DETENTION OF PURCHASE MONEY BREACH OF COVENANT. 493 cannot be denied that there would be much hardship in denying him that right where the vendor had in the first instance agreed to extinguish the incumbrance, but had neglected or refused to do it. 28 There is a conflict of decision upon the question whether, as between vendor and purchaser, the latter will be deemed to have notice of defects and incumbrances which appear from the public records. The weight of authority and the better opinion seeins to be that the law of notice from the public registers has no applica- tion as between vendor and purchaser. 29 183. RECOUPMENT. At common law, a total failure of con- sideration could always be pleaded in bar to an action on a con- tract, but if the failure of the consideration was only partial, the defendant was, as a general rule, driven to his cross-action against the plaintiff. A total failure of the consideration occurred wher- ever the defendant received absolutely no benefit under the con- tract; but if he received any such benefit, no matter how small, the plea of failure of consideration could not be sustained, and the defendant was forced to his separate action. 30 If the contract was for the sale or lease of lands, there could be no total failure of the consideration if the purchaser was put in possession 31 and enjoyed the estate without liability to a stranger for the rents and profits, 32 in case the title was not such as he might demand, e. g., a life estate instead of an estate in fee. This seems to have been the rule, even though the purchaser was evicted by the real owner. But now, by virtue of statutes in many of the American States, 83 ties, however, go but little further than the general proposition that knowl- edge of the defect or incumbrance at the time of the purchase does not affect the purchaser's right to recover on the covenants. 28 In Stelzer v. La Rose, 79 Ind. 435, it was held that a purchaser under the circumstances stated in the text could not detain the purchase money so long as he had suffered no loss or injury on account of the incumbrance. "Shannon v. Marselis, Saxt. (N. J.) 413, 426. Ante, 104. *" Chitty Cont. (10th Am. ed.) 815. An exception exists in the case of a breach of warranty of chattels where the defendant returned the goods. Id. 491. 31 Moggridge v. Jones, 3 Camp. 38. M Jenness v. Parker, 24 Me. 295. 33 Thus, in Virginia (Code, 1887, 3299), it is provided that: "In any action on a contract, the defendant may file a plea alleging any such failure in the consideration of the contract, or fraud in its procurement, or any such 494 MARKETABLE TITLE TO REAL ESTATE. the defendant in any action on a contract is allowed to file a special plea, setting up as a defense any matter which would entitle him to damages at law for breach of the contract, or to relief in equity against the obligation thereof. In some of the States, however, no such statutes exist, or, at least, none that permit the defendant to set up a claim for unliquidated damages as a defense to an action on a contract. In such States, the defend- ant, in an action for the contract price of lands, if he has been evicted from the premises and has a present right to recover dam- ages on the covenants of his grantor, is allowed to set up those facts in recoupment of the plaintiff's demand, oven though he may breach of any warranty to him of the title, or the soundness of personal property for the price or value whereof he entered into the contract, or any other matter as would entitle him either to recover damages at law from the plaintiff, or the person under whom the plaintiff claims, or to relief in equity, in whole or in part, against the obligation of the contract; or, if the contract he by deed, alleging any such matter arising under the contract existing before its execution, or any such mistake therein, or in the execution thereof. or any such other matter as would entitlo him to such relief in equity." The object of this statute was to abolish the common-law rule that the defendant could not in effect have at law a rescission of a contract, the benefits of which he had partly enjoyed, and to admit of the defense of partial failure of consideration by way of set-off. A similar statutory provision, it is be- lieved, exists in most of the States. In Alabama, the early rule was that unliquidated damages could not be set off against a demand for the pun-lmse money. Dunn v. White, 1 Ala. 645. The removal of an outstanding incum- brance by a purchaser of land having a covenant against incumbrances wn* held to be within the rule. Cole v. Justice. 8 Ala. 703. A subsequent statute authorized the set off of not only mutual debts, but liquidated or unliquidated demands not sounding in damages merely. Rev. Code Aln. 2642. It was held that the amount paid by a purchaser to extinguish an outstanding vendor's lien wag within this statute, and should be allowed as a set-off. Holley v. Younge, 27 Ala. 203. So, also, a breach of warranty arising from a deficiency in the quantity of land sold. Bell v. Thompson, 34 Ala. 633; Nelms v. Prewitt, 37 Ala, 380. So. also, a cross-demand growing out of a defect in the vendor's title is available as a set-off in an action mi the note* for the purchase money, although the purchaser is in possession. Martin v. Wharton, 38 Ala. 637. In Fads v. Murphy. 52 Ala. 525, the fact that the vendors could not make a good title to the land was held a good set-off to an action for the purchase money. Under a statutory provision that a counter- claim must be one "existing in favor of a defendant nnd against a plaint iff. In'tween whom several judgment* might be had in the action.'' a sub-pur- chaser, against whom no personal judgment is asked, cannot defend, by way of counterclaim, an action to foreclose a purchase-money mortgage cm the DETENTION OF PURCHASE MONEY BREACH OF COVENANT. 495 have had possession of the premises, and consequently may have received some benefit from the contract. 34 " Recoupment differs from set-off in this respect ; that any claim or demand the defendant may have against the plaintiff may be used as a set-off, while it is not a subject for recoupment unless it grows out of the very same transaction which furnishes the plain- tiff's cause of action. 35 The defense of set-off did not exist at com- mon law, but a right to reduce or defeat the plaintiff's demand on account of some matter connected therewith was conceded to the defendant. 36 Thus, in an action for work done, the defendant might deduct from the damages the value of material supplied by him, 37 and, in an .action to recover money for dyeing goocte, the defendant was permitted to show a custom which allowed him to deduct from the price of the work the amount of damage done to the goods while being dyed. 38 The extension of this- principle, so as to allow the defendant in an action on a contract to set up as a defense unliquidated damages resulting from the plaintiff's non- performance of the contract, has produced the modern doctrine of recoupment. 39 That defense is- permitted for the purpose of avoid- ground that he had been, evicted by paramount title, when that title was acquired through a sale for taxes which were incumbrances at the time of the plaintiff's grant. In other words, the counterclaim could be availed of only by the original purchaser. Nat. Fire Ins. Co. v. McKay, 21 N. Y. 191. 34 In Doremus v. Bond, 8 Blackf. (Ind.) 368, it was said: "In just the amount, then, that the vendors have suffered the purchaser to pay by com- pulsion, to secure the benefit of their covenants of title andr possession, have those covenants failed as a consideration ; and that failure being perfected before the payment of all the purchase money, it may be recouped out of the original consideration. The defendant is not bound to plead the matter by way of set-off, springing, as it does, out of the default of the vendors in rela- tion to the original contract, and not from any new or subsequent dealing on his part." In Texas, it is provided by statute that, if " a suit be founded on a certain demand, the defendant shall not be permitted to set off unliqui- dated damages found'ed on a tort or breach of covenant on the part of the plaintiff." Rev. St. Tex. 649. Howard v. Randolph, 73 Tex. 454. It may be doubted whether this statute would- exclude the defense of recoupment. The statute seems to be directed against demands disconnected with the contract. 34 Black Law Diet. nom. Recoupment. ""Chitty Cont. (10th Am. ed.) 946, 948. 3 ' Xewton v. Foster, 12 M. & W. 772. 38 Bamford v. Harris, 1 Stark. 343. 20 In \Yaterman on Set-Off (2d ed.)', p. 575, it is said: "As a general rule, 496 MARKETABLE TITLE TO REAL ESTATE. ing circuity of action; and, after all, the true test of its availa- bility is not so much whether there has or has not been a mere partial failure of the consideration, as whether the defendant has a present right to recover substantial damages from the plaintiff for breach of covenant ; for, if he have such right, it would be not only unjust but contrary to public policy to compel him to pay over money which he could immediately recover from the payee. 40 184. RECOUPMENT IN FORECLOSURE SUIT. The defense of set-off, recoupment or counterclaim may be as freely made in an action to foreclose a purchase-money mortgage or vendor's lien, as elsewhere. 41 But if no personal decree or judgment against the defendant, in case of a deficiency, is sought, the defense of re- coupment for damages occasioned by a failure of the title will, as a general rule, be rejected, for the reason that such a proceeding is essentially in rem; that the vendor is only seeking to reach what he had sold, and that it is immaterial to the purchaser whether the title in- such a case be good or bad. 42 The defense of set-off or after the purchase has been carried into execution by the delivery of the deed, if there has been no ingredient of fraud and the purchaser is not evicted, the insufficiency of title is no ground for relief against a security given for the unpaid purchase money." This is, undoubtedly, the general rulo. It is, also, an equally well-established rule that where there has been an evic- tion to which the covenants of the grantee extend, he may recoup the damages thence sustained in an action for the purchase money. Rawle Covts. for Title (5th ed.), 326. Consequently the reason given by Mr. Waterman for the rule as stated by him is somewhat unsatisfactory. He says: "The reason is that the bond 1 and mortgage for the payment of the purchase money, and the. covenant of warranty from the grantor, are separate and independent cove- nants and the breach of one cannot be urged as a defense to an action upon the other." Citing Timms v. Shannon, 19 Md. 206, 81 Am. Dec. 632; Grant v. Tallmans, 20 X. Y. 191. Such a reason would apply as well where there was an actual eviction as where the possession of the grantee has not 1.. . n disturbed, and would be subversive of the rule which, to prevent a cimiity of action, permits the evicted purchaser to retain the unpaid purchase money instead of turning him around to his action for breach of covenant. *See further, Sawyer v. Wiswall, 9 Allen (Mass.). 30; Stacy v. Kemp, 97 Mass. 166; Carey v. Guillow, 105 Mass. 18, 7 Am. Rep. 4!M. 41 2 Jones Mort. (3d ed.) 1496, et eq. Roake v. Sullivan, 125 N. Y. Supp. 835. * Jones v. Fulghum, 3 Tenn. Oh. 103; Cohen v. Woolard, 2 Tenn. Ch. 686; Hurley v. Coleman, 3 Head (Tenn.), 265, which was a suit to enforce a vendor's lien; Curd v. Davis, 1 Heinle. (Tenn.) 574; Williams v. Sax (Tenn.), DETENTION OF PURCHASE MONEY BREACH OF COVENANT. 497 counterclaim obviously stands on different grounds. 43 But if the conveyance under which the defendant held contained covenants for title, and there had been such a breach of them as to give him a present right to recover damages against the plaintiff, he may 43 S. W. Rep. 868. See, also, post, 333. Rawle Covts. (5th ed.) 351; Hubbard v. Chappel, 14 Ind. 601 ; Rogers v. Place, 29 Ind. 577 ; Jackson v. Fosbender, 45 Ind. 305; McLeod v. Barnum, 131 Cal. 605, 63 Pac. Rep. 924. In Reed v. Tioga Manfg. Co., 66 Ind. 27, a personal judgment was sought against the defendant, but the rule stated in the text was admitted. Ludlow v. Gilman, 18 Wis. 552; Peters v. Bowman, 98 U. S. 56; Hulfish v. O'Brien, 5 C. E. Green (N. J.), 230; Kuhner v. Parker, 56 N". J. Eq. 286, 38 Atl. Rep. 641 ; Ratkewicz v. Kara, 88 N. J. Eq. 201, 103 Atl. 912. In the follow- ing New York cases, the court refused to stay the enforcement of purchase- money mortgages upon the mere ground that the title was defective: Platt v. Gilchrist, 3 Sandf. Ch. (N. Y.) 118; Griffith v. Kempshall, 1 Clarke Ch. (N. Y.) 571; Hoag v. Rathbun, 1 Clarke Ch. (X. Y.) 12; Farnham v. Hotch- kiss, 2 Keyes (N. Y.), 9; York v. Allen, 30 N. Y. 105; Parkinson v. Sherman, 74 N. Y. 88; 30 Am. Rep. 268; Ryerson v. Willis, 81 N. Y. 277; Gifford v. Society, 104 N. Y. 139, 10 N. E. Rep. 39; Soule v. Dixon, 1 N. Y. Supp. 697; Wright v. Phipps, 90 Fed. 556, 98 Fed. 1007; Beebe v. Swartwout, 3 Gilm, (111.) 177, where it was said: "It will be observed that S. (the vendor) does not seek to collect the purchase money in this case; he simply aska to have the equity of redemption foreclosed if the purchase money is not paid. He cannot obtain a judgment against B. (the purchaser) and pay himself out of the general property of B. If he obtained any money at all, it is out of the special fund, the land, upon which he holds a mortgage. In this view of the case, the failure of title in his grantor can hardly affect him. His equity of redemption is worthless ii the legal title to the premises fail." It is true that, if the mortgagor had paid a part of the purchase money, he would have an equitable 'interest in the property to that extent; but, in view of the fact that he could only obtain relief against a demand for the pur- chase money by showing a clear outstanding title in a stranger and an immi- nent danger of eviction from the premises, and that he would be liable over to the real owner for the mesne profits, there would be little to gain by resisting the foreclosure of a mortgage, if the mortgagee does not seek to hold him liable for a deficiency. If the purchaser had given a mortgage on other property to secure the purchase money, a different question would be pre- sented. So, also, if the objection to the foreclosure is that there are incum- brances on the property which the covenantor is bound to remove. 43 In Hooper v. Armstrong, 69 Ala. 343, it was held that a suit to foreclose a vendor's equitable lien for purchase money, was not a proceeding in rem, but a proceeding in personam in which the defense of set-off can be made. But see Parker v. Hart, 32 N. J. Eq. 225. 63 498 MAKKETABLE TITLE TO REAL, ESTATE. avail himself of that defense by way of recoupment, 44 even though, it would seem, no personal judgment is sought against him. 45 If there be a prior incumbrance on the premises, it seems to be gen- erally conceded that the purchase money may be detained until the covenantor removes the incumbrance, or reduces it to a sum not exceeding the unpaid purchase money. 46 ]f the incumbrance is less in amount than the balance of purchase money due, and the covenantee chooses himself to remove it, he immediately becomes entitled to substantial damages for breach of the covenant against incumbrances, and may avail himself of that defense in the suit to foreclose, or he may apply the purchase money to the discharge of incumbrances, as far as it will go, and obtain ail injunction until the residue of the lien is removed by the covenantor. 47 An- other reason why a mortgagor or vendee in possession cannot be allowed to set up an outstanding title in another in bar of a bill to foreclose a purchase-money mortgage, or to enforce a vendor's **2 Jones Mort. (3d ed.) 1500, and cases cited, ante, 180. Hoffman v. Kirby, 136 Cal. 26, 68 Pac. Rep. 321; Williams v. Baker, 100 Mo. App. 284, aff'd 73 S. W. Rep. 339; Brady v. Bank of Com., 41 Okl. 473, 138 Pac. 1020. If no such breach of the covenants for title had occurred, the defendant would have no ground for recoupment and would not be allowed to make that de- fense, though there might be a personal decree against him for a deficiency. Edwards v. Bodine, 26 Wend. (N. Y.) 109; Leggett v. MtCarty, 3 Edw. (N. Y.) 124. 41 For example, if the defendant, the mortgagor, had been compelled to buy in adverse claims to protect his title, it would be clearly inequitable to deprive him of his right to recoup the damages so incurred, merely because the plaintiff asked no personal judgment against him. Therefore, where, in a proceeding in equity to enforce a purchase-money lien, in which it appeared that the vendor had expended moneys in getting in the title of an adverse claimant of part of the land, it was held error to enter* a decree for the plaintiff, without directing a reference to a master to ascertain whether such adverse title was paramount or not, and whether the purchaser was entitled to an abatement. Smith v. Parsons, 33 W. Va. 644; 11 S. E. Rep. 68. *Pot, ii 332, 335. Buell v. Tate, 7 Bl. (Ind.) 65; Smith v. Fiting, 37 Mich. 148, semblr; Hughes v. McNider, 90 N. C. 248; McCrath v. Myers, 126 Mich. 204, 85 X. W. Rep. 712. w Jones Mort. f 1504; Whisler v. Hicks, 5 Bl. (Ind.) 100; 33 Am. Dec. 454; Smith v. Ackerman, 5 Bl. (Ind.) 541; Oldtifld v. Stevenson, 1 Ind. 153; Small v. Reeves, 14 Ind. 164; Potwin v. Blasher, 9 Wash. 460; 37 Pac. Rep. 710. DETENTION OF PURCHASE MONEY BREACH OF COVENANT. 499 lien for the purchase money, is, that he stands in the relation of a tenant to the vendor and is estopped to deny the title of the latter. 48 There are cases which declare that in a suit for the foreclosure of a mortgage given for the purchase money, the mortgagor, though personally liable for the debt, cannot set up want of title in the vendor as a defense, unless he has been evicted from the possession. These decisions are rested precisely upon the same grounds as those which deny the right of the covenantee to detain the purchase money unless he has been evicted, and would seem to admit of the same exceptions where the vendor is insolvent or a non-resident, and suit is being actually prosecuted or threatened by an adverse claimant. 49 If the purchaser has paid a part of the purchase money, or has expended money in improving the premises, so as to entitle him to an equitable lien thereon, there are cases which hold that these facts may be availed of by him in a suit to fore- close the mortgage. 50 I'f the grantee has been evicted from a part of the premises, he may set up that fact as a defense in foreclosure proceedings. But in such a suit he cannot claim an abatement of the purchase money of land actually sold and conveyed to him on account of the failure of title to other land which was not in fact sold, though it was inadvertently conveyed to him. 51 In the State of Virginia the enforcement of a security for the purchase money by a sale of the premises, is not permitted in any case in which the title is in doubt. This, however, is in the inter- est of all parties, that there may be no sacrifice of the premises, ^Bigelow on Estoppel (3d ed.), 427, citing, among other cases, Strong v. Waddell, 56 Ala. 471, and Wallison v. Watkins, 3 Peters (U. C.), 43, 52. In the last case the mortgage does not appear to have been given to secure pur- chase money. 49 Banks v. Walker, 2 Sandf. Ch. (X. Y.) 344; Davison v. De Freest, 3 Sandf. Ch. (X. Y.) 456; Falkner v. Hackett, 104 Wis. 608, 80 N. W. Rep. 940; Nathans v. Steinmeyer, 57 S. C. 386, 35 S. E. Rep. 733; Moore v. Beard, 91 S. C. 496, 74 S. E. 1062; Paine v. Kemp, (Fla.) 82 So. 53; Burke v. Timber Co., 224 Fed. 591. The same rule applies in a suit to enforce a vendor's lien. Young v. Figg, (Xeb. ) 100 X. W. Rep. 311. 5tf Rockwell v. Wells, (Mich.) 62 X. W. Rep. 165; Dayton v. Melick, 32 N. J. Eq. 570; De Kay v. Bliss, (X. Y.) 34 X. E. Rep. 300; Jones Mortg. (4th ed.) 1490. 51 Elder v. First Xat. Bank, 91 Tex. 423, 44 S. W. Rep. 62. 500 MAKKETABLE TITLE TO REAL ESTATE. and that a doubtful title may not be forced upon a purchaser at the sale." 185. PARTIAL FAILURE OF THE CONSIDERATION. The consideration which passes from the grantor to the grantee upon a conveyance of lands with unlimited covenants for title is, according to the better opinion, not the mere covenants for title which the conveyance contains, but the transfer of an indefeasible estate, so that if the purchaser be evicted from the premises by one claiming under a paramount title, there is a clear failure of the considera- tion," though, it seems according to common law, not an entire "Post, 8 337. Peers v. Barnett, 12 Grat. (Va.) 415, where it was said by the court: "A distinction seems to have been taken by some of the reported cases as to the relief a court of equity will extend to a vendee who has accepted his deed with covenants of general warranty, where he seeks to enjoin a judgment for, or the collection of, the purchase money, and the case where the vendor, instead of proceeding against the vendee personally, is attempting to sell the land under a deed of trust or by bill in equity; that although the facts may not authorize the court to enjoin the collection of the purchase money by a proceeding against the vendee at law, yet as a court of equity reprobates a sale of land when clouds are hanging over the title, it will, for the benefit of the parties and the security of the purchaser at any sale of the subject enjoin or refuse to decree a sale of the land until the title is cleared up. The case of Beale v. Seively, 8 Leigh (Va.), 658, is a case of the first class. It was there decided that where a vendee is in possession of land under a conveyance with general warranty, and the title has not been questioned by any suit prosecuted or threatened, such vendee has no claim to relief in equity against the payment of the purchase money unless he can show a defect of title respecting which the vendor was guilty of fraudulent concealment or misrepresentation, and which the vendee had at the time no means of discovering. In Pvalston v. Miller, 3 Rand. (Va.) 44; 15 Am. Dec. 704; Koger v. Kane, 5 Leigh (Va.), 600; Clarke \. Hardgrove, 7 Grat. (Va.) 399, this court has extended the relief to cases where the vendee, placing himself in the position of the superior claimant, can show clearly that the title is defective. The principle that a court will not sell or permit a sale of land with a cloud hanging over the title, is affirmed in Lane v. Tidhall, Gilm. (Va.) 130; Gay v. Hancock, 1 Rand. (Va.) 72; Miller v. Argyle, 5 Leigh (Va.), 480." "Rawle Covt. (5th ed.) | 327. Cook v. Mix, 11 Conn. 432; Knapp v. Lee, 3 Pick. (Ma*H.) 459; Rice v. Goddard, 14 Pick. (Mass.) 293; Tra*k v. Vin- son, 20 Pick. (Mass.) 110; Tilotson v. Grapes, 4 N. H. 448; Deal v. Dodge, 26 111. 46S; Tyler v. Young, 2 Scam. (111.) 445; 35 Am. Dec. 116; Thompson v. Shoemaker, 68 111. 256: Dunning v. Leavitt, 85 N. Y. 34, 39 Am. Rep. 617. A contrary view was expressed in the early cases of Lloyd v. Jewell, 1 Gr. (Me.) 352; 10 Am. Dec. 73, and Gridley v. Tucker, 1 Freem. Ch. DETENTION OF PURCHASE MONEY BREACH OF COVENANT. 501 failure, possession once had under the contract being a partial enjoyment of the consideration unless the grantee was liable for the rents and profits. The modern doctrine, however, at least, so far as it is exemplified by the American decisions, is that an eviction from the premises by an .adverse claimant produces a total failure of the consideration. One of the principal reasons for the rule that the covenantee cannot detain the purchase money so long as he is in possession of the premises is, that until he is actually or con- structively evicted there is only a partial failure of the considera- tion of his promise to pay. 54 The detention of the purchase money is in effect a species of rescission of the contract, and there can be no rescission of a contract while either party is in the enjoyment of any of its benefits. 55 Hence, it follows that there may be only a partial failure of the consideration in a case in which the title has entirely failed. 56 Partial failure of title is sometimes spoken of in the cases ; apparently in the sense of partial failure of the consider- ation ; 57 but it is an expression likely to lead to confusion of ideas, for strictly speaking there is no such thing as a partial failure of title, though, of course, there may be a failure of title to part of the subject. Accordingly there are many cases in which the right of the covenantee to resist the payment of the purchase money while he is in the undisturbed possession of the premises is denied upon the ground that there has been no more than a partial failure of the consideration, though there has been a complete and pal- pable failure of the title. 58 (Miss.) 211, but these cases are overruled by or are inconsistent with the later cases cited above. "There can never be a total failure of the consideration of a conveyance with covenant of warranty, until the covenantee has been actually or con- structively evicted. Key v. Hansom, 17 Ark. 254; McDaniel v. Grace, 15 Ark. 487. Contra, Cook v. Mix, 11 Conn. 437. "Whitney v. Lewis, 21 Wend. (N. Y.) 131. Patton v. England, 15 Ala. 69 ; Stark v. Hill, 6 Ala. 785. 58 Thus, it has been held that if the estate transferred turn out to be a life interest instead of a fee, and the covenantee be put in possession, there is no entire failure of the consideration since he derives some benefit from the conveyance. Bowley v. Holway, 124= Mass. 35; Greenleaf v. Cook, 2 Wh. (U. S.) 13. M As in Bowley v. Holway, 124 Mass. 396. 88 2 Kent Com. (12th ed.) 473, 3 Sedg. Dam. (8th ed.) 1083; Waterman 502 MARKETABLE TITLE TO REAL ESTATE. In other cases, however, the doctrine that a partial failure of the consideration cannot be availed of by the defendant in an action for the purchase money of land, has been denied, 59 and in a few cases a total failure of the title has been treated as a total failure of the consideration, without regard to the question of eviction. 60 There would seem to be no occasion to invoke the doctrine of partial failure of the consideration in behalf of the plaintiff so long as the right of the defendant to detain the purchase money may be satis- factorily denied upon another ground, namely, that until the cove- nantee has been evicted by an adverse claimant where the cove- nants are of warranty or for quiet enjoyment, or has suffered actual damages from an incumbrance on the premises, where the covenant is against incumbrances, there can be no right to recover substan- tial damages as for a breach of those covenants, and, consequently, nothing to recoup from the plaintiff's demand. AYhere there has been a partial failure of the consideration, in the sense of a loss of Set-Off (2d ed.), 560: Rawle Covts. (5th ed.) 330, et aeq. Moggridge v. Jones, 3 Camp. 38; 14 East, 486; Greenleaf v. Cook, 2 Wh. (U. S.) 13; Scudder v. Andrew's, 2 MeL. (U. S.) 464, and analogous cases there cited. Freeligh v. Platt, 5 Cow. (X. Y.) 494; Whitney v. Lewis, 21 Wend. (N. Y.) 131; Tallmadge v. Wallis, 25 Wend. (X. Y.) 113; Lamerson v. Marvin, 8 Barb. (X. Y.) 11: Farnham v. Hotchkiss, 2 Keyea (N. Y.), 9; Tibhetts v. Ayer, Lai. Supp. (X. Y.) 176: Parkinson v. Sherman, 74 N. Y. 88, 30 Am. Rep. 268; Ryerson v. Willis, 8> X. Y. 277; Bowley v. Holway, 124 Mass. 395; Glenn v. Thistle. 23 Miss. 42; Leal v. Terbush, 52 Mich. 100, 17 X. W. Rep. 713; Hunt v. Midclleworth, 44 MSch. 448; Peden v. Moore, 1 Stew. & P. (Ala.) 71, 2 r Am. Dec. 649. In Reese v. Gordon, 19 Cal. 149, it wa^ said: "In cases of fraud or war- ranty, or where the consideration is divisible or capable of apportionment, a partial failure may sometimes be given in evidence in reduction of dam- ages: but the practice in this respect proceeds upon the principle of a cross- action, and an affirmative right of action must exist in favor of a party seek- ing relief in that form." The "partial failure" here mentioned must moan a case in which the purchaser has been evicted from part of the premises: otherwi.se the two propositions contained in the remarks of the court would be, as respects the covenant of warranty, contradictory and inconsistent; for unless the purchaser had been evicted from the premises in whole or in part there could be no "affirmative right of action " against the covenantor. "Friable v. Hoffnagle, 11 John-. (N. Y.) 50; James v. Lawrenccburg Ins. Co., 6 Bl. (Ind.) 525; Cook v. Mix, 11 Conn. 438; Moon v. Ellsworth, 3 Conn. 483; Dahle v. Stakke. 12 X. Dak. 325. 96 X. W. Rep. 353; Black Hillr. Xat. Bank v. Kellogg, 45 Dak. 312; 56 X. W. Rep. 1071. " Friable v. Hoffnagle, 11 Johns. (X. Y.) 50; Cook v. Mix, 11 Conn. 438. DETENTION OF PURCHASE MONEY BKEACII OF COVENANT. 503 a part of the warranted premises, by eviction under an incum- brance or a paramount title, there can be no doubt of the covenan- tee's right, according to the rule prevailing in America, to recoup the damages thus sustained, in an action for the purchase money. 61 In New York a partial failure of the consideration of an agree- ment to pay the purchase money for lands conveyed with covenants of warranty and for quiet enjoyment cannot be pleaded in bar, but must be availed of by way of recoupment or counterclaim, with notice that such defense is intended to be made. 62 But if the con- sideration has totally failed, that is, if the covenantee has been evicted from the whole premises, that fact may be pleaded in bar to an action for the purchase money. 63 In some cases it has been held that damages resulting from a partial failure of the consideration cannot be recouped in an action for the purchase money, upon the ground that the doctrine of re- coupment or set-off is of equitable origin and cognizable only in a court of equity. 64 These decisions do not appear to have been followed in the other States. 186. ASSUMPSIT TO THY TITLE, An objection to the ad- mission of the defense of complete failure of the title in an action for the purchase money, where the defendant has not been evicted, which has been frequently made, is, that the court cannot under- take in such an action to try the title ; in other words, that title to land cannot be tried in an action of assumpsit. 65 This is un- doubtedly true where the plaintiff, a stranger, asserts a title para- mount to that of the defendant, e. g., where he seeks to recover the rents and profits of the land enjoyed by the defendant. 66 But this 61 McHenry v. Yokum, 27 111. 160; Dahle v. Stakke, 12 1ST. Dak. 325, 96 N. W. Rep. 353. 62 Lewis v. McMillen, 41 Barb. (N. Y.) 420; McCullough v. Cox, 6 Barb. (N. Y.) 386; Tibbetts v. Ayer, Lai. Supp. (N. Y.) 17*. "Tallmadge v. Wallis, 25 Wend. (N. Y.) 116. 84 Wheat v. Dotson, 12 Ark. 699; McDaniel v. Grace, 15 Ark. 487; Key v. Hanson, 17 Ark. 254. 65 Leal v. Terbush, 52 Mich. 100, 17 N. W. Rep. 713; Dennis v. Heath, 11 Sm. & M. (Miss.) 206, 49 Am. Dec. 51. 86 Marshall v. Hopkins, 15 East, 309; Newsome v. Graham, 10 B. & C. 234; Baker v. Howell, 6 S. & R. (Pa.) 481; Hogsett v. Ellis, 17 Mich. 351; Cod- nian v. Jenkins, 14 Mass. 93; Boston v. Binney, 11 Pick. (Mass.) 1. 504 MARKETABLE TITLE TO REAL ESTATE. doctrine, in its application to the defense of failure of title in an action to recover the purchase money of lands, has been criticised, in that it assumes an eviction of the defendant to be conclusive of the question of title, and of the right to detain the purchase money. 67 It is familiar law that the defendant must show, either by the judgment of a court of record, or by evidence aliunde, that the eviction was under a title paramount to that of the covenantor, Hence, in the latter case, the court must necessarily pass upon the title and the rights of strangers in determining the sufficiency of the defense; and this is constantly done. Besides the objec- tion in question would apply as well where the contract is execu- tory as where it has been executed by a conveyance with covenants for title, and if it were insuperable, would in any and every case destroy the right of the purchaser to detain the purchase money upon a clear failure of the title, or to avail himself of the doctrine of marketable title in an action at law, unless the failure of the title had been established by the judgment of a court of record. 187. WHAT CONSTITUTES EVICTION PURCHASE OF OUT- STANDING TITLE. The failure of title to real estate may be pal- pable and complete, as where the vendor, undertaking to convey a "Rawle Covts. for Title (5th ed.), 8 334, n., where the author says: "It may be observed that the objection to trying the title to land in an action for ita contract price must equally apply in every case where the paramount title had not been established by a judgment of a court of record. Yet to give to such judgment a conclusive effect would be, when the vendor had not been vouched or notified, contrary to well-established principle, and it ia appre- hended that in every such case the purchaser would be bound to make out the adverse title under which he had been evicted, or to which he had yielded, with as much particularity as if suing on the covenants; and there would aeem to be no greater objection to the question of title being brought before the court in the form of one action than in the other." See. also, further observation at p. 631, n., same volume. In Redding v. Lamb, (Mich.) 45 X. W. Rep. 907, it wiw said by LONG, J. : " The general rule ia that damages for breach of covenant of seisin in a conveyance of land are only recoverable in an action for breach of covenant, as titles to land are not properly triable in actions of a/mtimpnit ; but I can see no good reason for remitting a party to another action where the action is brought to recover the purchase price of the land sold and there is failure of title. If the title has failed absolutely, then there is no consideration for the note, and the money recovered thereon would have to be repaid when the facts were eatab- lished in an action for breach of covenant." DETENTION OF PURCHASE MONEY BREACH OF COVENANT. 505 fee with warranty, had only a term for years which had expired, yet until the grantee has been actually or constructively evicted by an adverse claimant under color of title there is no breach of the covenants of warranty or for quiet enjoyment, no right to recover damages against the covenantee, . and, consequently, no right to detain the unpaid purchase money. What constitutes a breach of those covenants has been already considered, 68 and it only remains for the sake of convenience, to consider here briefly the application of the principles there discussed to the defense of failure of title in actions to recover the purchase money. Among the most im- portant of these principles is that which allows the purchaser to deduct from the purchase money any sum that it may have been necessary for him to pay to adverse claimants in order to protect his title. If he buys in an adverse title to prevent eviction, that is held the equivalent of an eviction, as respects the right to detain the purchase money. He cannot be turned around to his action on the covenant for indemnity. 69 But unless the rights of the para- mount claimant have been fixed by judgment in a possessory action, recovered after notice to the covenantor, so as to make the judg- ment conclusive upon him, the covenantee will have the burden of establishing the superiority of the title acquired by him from the adverse claimant. 70 If there has been no eviction or disturbance of the covenantee in his possession of the estate, and it does not appear that the adverse claimant could in all probability have recovered the land, the covenantee will not be reimbursed for the amount paid by him to get in the alleged outstanding title. 71 The covenantee cannot, of course, claim the benefit of the title so ac- quired, except as a set-off against the purchase money to the amount paid by him to the adverse claimant. He cannot set up such title adversely to that of his grantor. 72 !N~or can he escape the applica- "Ante, 142. Dower recovered against the covenantee constitutes a good defense to an action for the purchase money. McHenry v. Yokum, 27 111. 160. 9 Rawle Covts. (5th ed.) 334; Dart Vend. (5th ed.) ch. 15, 7. Ante, 150; Brandt v. Foster, 5 Iowa, 287; Stelzer v. Rose, 79 Ind. 435; Denson v. Love, 59 Tex. 468. "Ante, 151. "Ante, 151. Blair v. Perry, 7 J. J. Marsh. (Ky.) 152. "1 Sugd. Vend. ( Sited.) 533 (355). Post, 202. 64 506 MARKETABLE TITLE TO REAL ESTATE. tion of this rule by procuring a third person to get in the out- standing title. 73 The covenantee may also surrender the possession to a paramount claimant, and set up that fact as a defense to an action for the purchase money. He is not bound to await an actual eviction by the real owner. But he will have the burden of show- ing that the surrender was in good faith, and that the title of the adverse claimant was one to which he must have inevitably yielded. 74 The laws of the United States forbid the sale and transfer of mere pre-emption rights of public lands, and make the land so sold liable to resale in the hands of the purchaser as public lands. Such a resale, it has been frequently held, is equivalent to an eviction for the reason that it carries with it a constructive dispossession of the original purchaser, the government having the right to regain the possession by a summary proceeding without suit. Consequently, in such a case, the covenantee, holding under a conveyance from the pre-emptor with covenant of warranty, may detain the pur- chase money though, he has not been actually evicted from the premises. 78 At one time it was held that a covenantee, seeking to detain the purchase money, must show an eviction by legal process, but that doctrine has been modified, and it is now considered that an evic- tion by an adverse claimant, under color of title, satisfies the rule. An eviction, whether actual or constructive, entitles him to detain the purchase money. 78 In Xew York taxes assessed to the vendor "Brodie v. Watkins, 31 Ark. 319, 34 Am. Rep. 49, where it was said that a covenantee who procures a third person to buy in the premises at a sale under an outstanding incumbrance, may avail himself of the amount so paid out, as a recoupment in an action for the purchase money, hut cannot set up the title so acquired to defeat the recovery of the balance of the purchase money. "Ante, | 148. Garvin v. Cohen, 13 Rich. L. (S. C.)I53 ; Drew v. Towle, 30 X. II. 531, 27 N. H. 412. n Glenn v. Thixtle, 1 Cush. (Miss.) 42. The following cases are cited to the same proposition in Rawle Covt. (5th ed.) p. 573: McDaniel v. Grace, 15 Ark. 489; Fiher v. Salmon, 1 Cal. 413, 54 Am. Dec. 297; Slack v. McLagan, 15 III. 242; Dodd v. Toner, 3 Ind. 427; Bradt v. Foster, 5 Clark (Io.), 298; Hobein v. Dreweil, 20 Mo. 450; Tibbetts v. Aver, Hill A Den. Supp. (X. Y.) 174; Blair v. Claxton, 4 N. Y. 629, but few, if any of them, will be found directly in point. 'Ante, | 145. Rawle Covts. for Title (5th ed.), | 132. DETENTION OF PURCHASE MONEY BREACH OF COVENANT. 507 but laid by the board of supervisors after the purchaser buys and receives a conveyance, must be paid by the vendor. In .other words, the person owning the property at the time fixed by law for determining who shall be taxed therefor as owner, must pay the tax. If the purchaser be compelled to pay them to prevent a tax sale, the covenant of warranty is constructively broken, and the covenantee may recover the amount so expended as damages, 77 or detain the purchase money to that extent. We have seen that a covenant of warranty is broken only by an eviction, actual or constructive. ^Nevertheless it has been held that the covenantee cannot be compelled to pay the purchase money while a suit against him by an adverse claimant to recover the premises is still pending and undetermined, 78 nor where an adverse claimant is in possession of the premises. 79 It sometimes happens that the covenantee does not get the num- ber of acres called for by his deed. It seems that if the boundaries set forth in the deed do not contain the number of acres mentioned there is no -breach of the covenant of warranty. Consequently the covenantee cannot at law detain the purchase money. 80 But if the boundaries contain the full number of acres called for, and there be "Rundell v. Lakey, 40 N. Y. 517. See ante, 150. 78 Jaques v. Esler, 3 Gr. Ch. (N. J.) 465. See, post, ch. 26. 79 Pryse v. McGuire, 81 Ky. 608; English v. Thomasson, 82 Ky. 280; Laevison v. Baird, 91 Ky. 204, 15 . W. 252. 80 2 Warvelle Vend. 839; Rawle Covts. (5th ed.) 298. Ante, 135: Young v. Lofton, (Ky.) 12 S. W. Rep. 1061; Carter v. Beck, 40 Ala. 599. Compare Beach v. Waddell, 4 Halst. Ch. (N. J.) 308. In Koger v. Kane, reported in note to Long v. Israel, 9 Leigh (Va.) 569, CABEL, J. (dissenting), held that the covenantee was entitled to detain the purchase money if any deficiency in the quantity of the land existed, whether arising from the fact that the boundaries did not contain the stipulated qtiantity or that a portion of the land so contained was embraced by the superior title of others. In Comegys v. Davidson, 154 Pa. St. 534, 26 Atl. Rep. 618, where the contract had been executed by a conveyance, and it appeared that there was a de- ficiency in the width of the lot conveyed, the court, without adverting to the presence or absence of covenants for title, held that if the deficiency in the property conveyed was so serious that it might be regarded as evidence of imposition or fraud, the rule Avas to allow such a reduction of the purchase money as will compensate the purchaser for the value of the land lost. Practically this is administering equitable relief in an action for the pur- chase money. In Pennsylvania, however, there is no separate system of equitable procedure. 508 MARKETABLE TITLE TO REAL, ESTATE. no title to part of them, and the covenantee be evicted from or unable to get possession of that part, the covenant is broken and he may detain the purchase money to that extent. If the boundaries set forth do not contain the specified number of acres, where the sale is by the acre, then the executed contract is liable to rescission in equity on the ground of fraud or mistake. It has been held, however, that if the covenants were obviously intended to secure to the purchaser a specific number of acres or quantity of land, he would be entitled to relief upon the covenants in case of a deficiency. 81 188. DISCHARGE OF INCTJMBRANCES. If the purchaser be compelled to pay off incumbrances on the premises he becomes immediately entitled to recover substantial damages for breach of the covenant against incumbrances, and may recoup the damages so incurred in an ac-tion for the purchase money. 82 If the deed con- * Leonard v. Austin, 2 How. (Miss.) 888. "Xesbit v. Campbell, 5 Neb. 429; Davis v. Bean, 114 Mass. 358. This case is said by Mr. Sedgwick to be inconsistent with Bowley v. Holway, 124 Mass. 305, where it was held that in an action for the purchase money failure of title could not be set up as a defense by way of recoupment if there had been no eviction, for then there would be only a partial failure of the considera- tion. The two cases would seem distinguishable in this, that the defense in the first case was more in the nature of set-off thton recoupment, for the sum paid to remove the inoumbrance could scarcely be termed unliquidated dam- ages. And. further, in this, that in the second case there had been no breach of the covenant of warranty, while in -the first case the covenant had been broken and actual damages incurred; and if the incumbrance had equalled the purchase money in amount there would have been a total failure of the consideration. Where the encumbrance discharged is less than the purchase money the case would stand upon much the same ground as that in which recoupment is allowed when the covenantee is evicted from a part only of the premises, namely, that to that extent there w a complete failure of the consideration. See 3 Sedg. Dam. (Sth ed.) 267, 208; Owens v. Salter, 39 Pa. St. 211; Kelly v. Low, 18 Me. 244; Brooks v. Moody, 20 Pick. (Mass.) 475; Baker v. Railsback, 4 Tnd. 633; Small v. Rieves, 14 Ind. 103; Holman v. Creagmiles, 14 Ind. 177; Bowen v. Thrall, 28 Vt. 382; Delavergne v. Norris, 7 Johns. (N. Y.) 357; 6 Am. Dec. 281. Schumann v. Knoebel. 27 III. 177, the court saying: "The pleas allege the existence of a certain incumbrance by mortgage, which the defendant had to pay and discharge, and thereby extinguish the incumhrance. To the extent then of this incumbrance there was a failure of consideration. Morgan v. Smith, 11 111. 190; Whisler v. Hicki, 6 Bl. (Ind.) 100. 33 Am. Dec. 454; Smith v. Acker, 5 Bl. (Ind.) 541; Buell v. Tat*, 7 Bl. (Ind.) 54; Pomeroy v. Burnett, 8 BL (Ind.) 142. We DETENTION OF PURCHASE MONEY BREACH OF COVENANT. 509 tains a covenant of warranty, but no covenant against incum- brances, the same rule applies if the money was paid to prevent an eviction by the incumbrancer. An eviction consequent upon the foreclosure of an incumbrance is as much a breach of the covenant of warranty as an eviction by one claiming under paramount title. 83 The mere existence of an incumbrance upon the premises, which is a breach of the covenant against incumbrances, is no ground upon which to detain the purchase money; for, if the covenantee were to sue for the breach he could recover only nominal damages so long as he had sustained no actual damage from the incumbrance. 84 And as the recoupment of -the breach, when sued for the purchase think, too, the defendant, under the pleadings, might have recouped th amount thus paid. Babcock v. Tria, 18 111. 420. There is a natural equity as to claims arising out of the same transaction, that one claim should com- pensate the other, and that the balance only should be recovered. The dam- ages claimed by the defendant grew out of the contract for the sale of the land, and present a plain case for recouping damages. * * * The defend- ant should have been allowed, either under his plea of partial failure of consideration, or on the principle of recoupment under the other pleas, the amount he paid to extinguish the mortgage set out in his plea, and the plaintiff should have had a judgment for the balance only." It has been held that a purchaser of mortgaged premises taking a deed subject to the mort- gage, and assuming to pay the mortgage, is estopped to contest the con- sideration and validity of the mortgage. Parkinson v. Sherman, 74 N. Y. 92, 30 Am. Dec. 268; Ritter v. Phillips, 53 X. Y. 586; Thorp v. Keokuk Coal Co., 48 N. Y. 253; Freeman v. Auld, 44 N. Y. 50; Shadbolt v. Bassett, 1 Lans. (N. Y.) 121; Dahle v. Stakke, 12 N. Dak. 325, 96 N. W. Rep. 353. 84 Ante, 150. Coleman v. Insurance Co., 26 Ky. Law Rep. 900, 82 S. W. 616. In Alden v. Parkhill, 18 Vt. 205, it was held that a purchaser, taking a deed with covenants of warranty, oould not. in an action for the purchase money, show under the general issue a breach of the covenant against incum- brances; but that he might set-off the amount paid by him to remove the incumbrance in order to prevent an eviction. M Jones Mortg., 500; a perspicuous statement of the rule as follows: "Where the grantee in a warranty deed, conveying premises on which there is a prior mortgage, remains in the undisturbed possession of the premises, and the mortgage debt is unpaid and no suit has been brought to collect it, or foreclose the mortgage or to evict the purchaser, it is no defense to a foreclosure suit against him, to secure the purchase money, that such prior mortgage is an outstanding incumbrance, unpaid and unsatisfied." Mills v. Saunders, 4 Neb. 190; Pomeroy v. Burnett, S Bl. (Ind.) 142; Mitchell v. Dibble, 14 Ind. 526; Martin v. Foreman, 18 Ark. 249, where it was held that an unsatisfied judgment, binding the warranted premises, constituted no defense to an action for the purchase money. Gager v. Edwards, 26 111. App. 490. ")10 MAKKKTABLK T1TLK TO KKA1. KS'fATE. money, is in substance a cross-action by the purchaser on the cove- nant, it devolves on him to show that he has discharged the incum- brance or has been evicted by the incnmbrancer. 85 Hence, it lias been held that the mere existence of a right of dower in the. prom- isee, whether inchoate or consummate, is no defense to an action for the purchase money if the purchaser holds under a conveyance with covenant against incumbrances, and has not been evicted by the dowress, nor paid her a sum in gross in commutation of her dower right. 86 An apparent exception to the rule above exists in those cases in which the incumbrance exceeds the purchase money, and the grantee is allowed a temporary injunction until the vendor pays the excess. 87 It is to be observed that the right to detain the purchase money is either to detain it permanently in case of an actual loss of the entire estate by reason of a paramount title in a stranger, or to detain it temporarily until an objection to the title is removed. The purchaser may retain so much of the purchase money as may be sufficient to secure him against pecuniary incum- brances on the land, especially when the grantor is insolvent, and no adequate remedy can be had upon his covenants. 88 If a cove- nantoe pays off an incumbrance on the land he can have credit only for the actual amount disbursed for that purpose. lie cannot buy up the lien at a discount and have the benefit of its face value against the grantor. 89 If the purchaser accept a deed from a third party instead of the vendor he cannot recover from the latter moneys paid in removing incumbrances.' The purchaser takes the risk of the validity of the incumbrance which he discharges. The vendor may always show that he was not bound to discharge the incumbrance, from some illegality in the consideration, or other cause. 91 If the purchase money be secured "Thurgood v. Sprinp, 130 Cal. 596, 73 Pur. 456; liryan v. Swain, 56 Cal. 618. Whisler v. Hick*, 5 Blarkf. (Iml.) 100; 33 Am. Doc. 454; Smith v. Afkerman, 5 Blaokf. (Ind.) 541. "Pout, 8$ 332, 335. Bowen v. Thrall, 28 Vt. 3S2, citinjr Tourville v. XaSsh, 3 P. Wms. 307; Warren v. Stoddart (Idaho), 59 Par. Rep. 540. "McDowell v. Milroy, 6ft 111. 408. Ante, ? 130. Herryford v. Turner, 67 Mo. 206. w Norton v. Jarkmm, 5 Cal. 262. DETENTION OF PURCHASE MONEY BREACH OF COVENANT. 511 by trust or mortgage which the vendor is proceeding to enforce, the purchaser can have, of course, no means of availing himself of his right to a set-off or allowance for money paid in removing incumbrances which should have been discharged by the vendor, except by way of injunction to prevent the sale. 92 The injunction would be denied, it is apprehended, unless all the purchase money had been paid, except so much as may have been applied to the incumbrance. As the duty devolves upon the covenantor to remove incum- brances, the covenantee cannot be held responsible for an increase in the cost and charges of removal, which might have been avoided by prompt action. Thus, where a tax lien might have been re- moved at a cost of $14 by the covenantee, but on account of a for- feiture to the State for non-payment in due time, he was compelled to pay $150 to redeem the forfeiture, it was held that he was en- titled to set off the amount so paid against the unpaid purchase money. 93 189. RULE IN TEXAS. In Texas a purchaser who has ac- cepted a conveyance with general warranty, may resist the payment of the purchase money in case of a failure of the title, though there has been no eviction, but he is required to show that such failure consists of an indisputable superior outstanding title under which he is liable to be evicted, 9 * and that he accepted the convey- 92 Post, 332. M William Farrel, etc., Co. v. Deshon,. 65 Ark. 103, 44 S. W. Rep. 1036. "Cooper v. Singleton, 19 Tex. 260, 70 Am. Dec. 333; Tarpley v. Poage, 2 Tex. 139; Woodward v. Rogers, 20 Tex. 176; Cook v. Jackson, 20 Tex. 209; Johnson v. Long, 27 Tex. 21; Demaret v. Bennett, 29 Tex. 263; Johnston v. Powell, 34 Tex. 528; Fisher v. Dow, 72 Tex. 432, 10 S. W. Rep. 455; Haralson v. Langford, 66 Tex. Ill, 18 S. W. Rep. 339; Groesbeck v. Harris, 82 Tex. 411 (1891); 19 S. W. Rep. 850; Hubert v. Giady, 59 Tex. 502; Blanks v. Ripley, (Tex. Civ. App.) 27 S. W. Rep. 732; Doughty v. Cottraux, (Tex. Civ. App.) 27 S. W. Rep. 914; McLean v. Connerton (Tex. Civ. App.) 78 S. W. Rep. 238; Wilson v. Moore, (Tex. Civ. App.) 85 S. W. Rep. 25; Adams v. Jordan, (Tex. Civ. App.) 136 S. W. 490. He must show a reasonable certainty of eviction. Price v. Blount, 41 Tex. 472. He may resist the payment of the purchase money without showing a liability to eviction where fraud was used to induce him to accept the title. Norris v. Evans, 60 Tex. 83. The Texas doctrine is thus stated in Cooper v. Singleton, 19 Tex. 267, 70 Am. Dec. 333, the leading case in that State: "The difference between the liabilities of the vendee under an executory and executed 512 MARKETABLE TITLE TO REAL ESTATE. ance in ignorance of the defective title. 95 He will be charged with notice of defects which lay in the vendor's chain of title unless his contract is thi: That in the former he should be relieved by showing defect of title, unless on proof by the vendor that this was known at the sale, and it was understood that such title should be taken as the vendor could give. In the latter the vendee should establish, beyond doubt, that the title was a failure in whole or in part; that there was danger of eviction, and also uch circumstances as would prima facie repel the presumption that at the time of the purchase he knew and intended to run the risk of the defect." So in Demaret v. Bennett, 29 Tex. 268, it is said: "A purchaser who has pone into possession under a deed with warranty, without any notice of a defect in the title, may resist the payment of the purchase money by showing his title to be worthless, and the existence of a superior outstand- ing title by actual ouster, or what is tantamount to the same, an indisputable superior outstanding title, and that he is liable to be evicted. He must return the possession of the premises, and the deed for cancellation. In Preston v. Breedlove, 45 Tex. 47, it was held that a party in possession claiming under complete and recorded conveyances, could not be affected by a decree of foreclosure against a remote vendor alone, and that a sale thereunder being ineffectual to cut off his defenses against the lien, he could not set up such sale as a defense to an action against him for the purchase money, citing Mulls v. Traylor, 36 Tex. 7, and other cases. It was also held in this case that the fact that suit had been brought against the maker of a note, secured by vendor's lien, to recover the land, was not sufficient evidence of failure of title to enable him to detain the purchase money. "Brock v. Southwick, 10 Tex. 65; Demaret v. Bennett, 29 Tex. 263; Bryan v. Johnson, 39 Tex. 31; Price v. Blount, 41 Tex. 472; Herron v. De Bard, 24 Tex. 181; May v. Ivie, 68 Tex. 379; 4 S. W. Rep. 641; Twohig v. Brown, 85 Tex. 51; Fagan v. McWhirter, 71 Tex. 567, 9 S. W. Rep. 677; Moore v. Vogel (Tex. Civ. App.), 54 S. W. Rep. 1061; Knight v. Coleman, (Tex. Civ. App.), 51 S. W. Rep. 258; Frantz v. Masterson, (Tex. Civ. App.) 133 S. W. 740. Upon this point the leading case is Brock v. Southwick, 10 Tex. 65. It i there said: "The proof shows a contract of purchase and a con- veyance subsequently executed with warranty of title and possession. The defendant accepted the conveyance with a knowledge of the defect of title. He was put upon inquiry and was informed that the title was defective. He nevertheless made the purchase and accepted the conveyance without objection, relying, doubtless, upon his chances to perfect the title, or upon the security afforded by the covenants in hia deed of conveyance. It is fair to conclude that he considered his purchase worth, or that he was willing to give, the stipulated price notwithstanding the defect of title; or that he chose to take the chances as to the title, and have his recourse upon the covenants in his deeds in case of eviction." The purchaser's pleadings mufft aver such want of notice. Carson v. Kelly, 57 Tex. 379. So in the recent cane of Xeyland v. Neyland, 70 Tex. 24, 7 S. W. Rep. 651. The purchaser holding under a deed from three grantors with general warranty, resisted payment on the ground that a fourth person owning an equal interest in the property had not been procured to execute the con- DETENTION OF PURCHASE MONEY BREACH OF COVENANT. 513 attention was diverted from them by the artifices of the vendor. 96 A purchaser availing himself of this defense must surrender pos- session to the grantor and give up the deed to be canceled, 97 and an answer setting up such a defense and containing no offer to recon- vey is insufficient. 98 But he may, nevertheless, surrender the pos- session to an adverse claimant, and detain the purchase money though he has thereby incapacitated himself from placing the ven- dor in stain quo, provided he can show absolutely that the vendor had no title, or that he did not have such title as he professed to sell. 99 He may also buy up the rights of an adverse claimant to prevent inevitable eviction, 1 but this, however, is held to be equiva- lent to an actual eviction. 2 It may be observed that in this State, though a conveyance has been executed to the purchaser, the con- tract is held to be executory so long as> the purchase money remains unpaid. 3 veyance us agreed. The court said: "The plea does not aver a want of knowledge of defect of title at the time of the purchase, nor does it state when the defect came to his knowledge. He alleges that the appellee is insolvent, but does not allege that the other two vendors are insolvent. The circumstances recited in the plea indicate that he was as well advised of the defect in. the title and the insolvency of the appellee at the time he purchased as he was at the time he executed the note. He admits that he is in possession of the land under a deed with warranty. He does not allege that there were fraudulent representations or even concealment on the part of his vendors at the time he purchased. He certainly should aver that he did not know of the defect at the time of his purchase, and also allege the insolvency of all of his vendors. Being in possession under a deed with covenant of warranty, appellant cannot be released from payment of the purchase money unless there was fraud on the part of his vendors at or before the sale, or in case of defect not known to him at the time he pur- chased." 96 Haralson v. Langford, 66 Tex. 113, citing Woodward v. Rogers, 20 Tex. 176, where, however, the point does not "seem to have been distinctly ruled. 97 Demaret v. Bennett, 29 Tex. 263; Haralson v. Langford, 66 Tex. Ill, 18 S. W. Eep. 339 ; Ogburn v. Whitlow, 80 Tex. 239, 15 S. W. Rep. 807, citing Smith v. Nolan, 21 Tex. 497. 98 Ogburn v. Whitlow, 80 Tex. 239, 15 S. W. Rep. 807. 09 Fisher v. Dow, 72 Tex. 432, 10 S. W. Rep. 455. 1 Clark v. Mumford, 62 Tex. 531. 2 Rawle Covts. (5th ed.) 146. 3 Kennedy v. Embry, 72 Tex. 387; 10 S. W. Rep. 88; Ogburn v. Whitlow, 80 Tex. 241; 15 S. W. Rep. 807; Lanier v. Forest, 81 Tex. 189, 16 S. W. Rep. 994. 65 514 MARKETABLE TITLE TO REAL ESTATE. If the purchaser take a conveyance without covenants for title, the rule in Texas is the same as that which generally prevails elsewhere, namely, that in the absence of fraud he is without relief in case the title fails. 4 It is not necessary that the purchaser should make the holder of an outstanding paramount title a party to the proceeding in order to avail himself of the existence of such title as a defense to an action for the purchase money. 5 But it is not a sufficient defense to show merely that at one time the title was outstanding in a stranger; he must show also that such title has never been acquired by the vendor.' It seems that in this State the existence of a valid incumbrance upon the premises, is, equally with failure of the title, a ground for detaining the purchase money, provided the conveyance with warranty was accepted without notice of the incumbrance. T 190. BTJLE IN SOUTH CAROLINA. In South Carolina a purchaser who has taken a conveyance with general warranty, which in the State embraces the five common law covenants, 8 may, for any defect of title embraced by those covenants, 9 defend an action at law for the purchase money, though there has been no eviction, if he can show that the defect consists of an outstanding paramount title to which he must inevitably yield. 1 * But he can- 4 Rhode v. Alley, 27 Tex. 445; Baldwin v. Drew, CTex. Civ. App.) 180 R. W. 614. But it has been recently there held that an ignorant man who could neither read nor write and who relied upon the vendor's representa- tions, made in good faith, that the title was good, when in fact it was bail, was entitled to a rescission of tho contract and return of the purchase money, although he had taken a conveyance with special warranty only. Fahy v. Kaies, (Tex. Civ. App.) 181 S. W. 782. Fisher v. Abney, 89 Tex. 416, 9 $. W. Rep. 321. Haralson v. Langford, 06 Tex. Ill, 18 S. W. Rep. 339. T Tnrlton v. Daily. 55 Tex. 92. Kvaiw v. MeLuca*, 12 S. C. 56; Txwly v. Dowie, 24 S. C. 197, 3 S. F. Rep. 199. Rogers v. Horn, 6 Rich. Kq. (S. C.) 302; Evans v. Dcnby, 2 Spears (S. C.), 10, 13 Am. Dec. 350. "Thompson v. McCord, 2 Buy (S. C.), 76; Taylor v. Fulmore, 1 Rich. Kq. (S. C.) 52; Sumter v. Welsh. 1 Brev. (8. C.) 539; Johns v. Xixon, 2 Brev. (8. C.) 472; Van Lew v. Parr, 2 Rich. Fq. (8. C.) 340, and Rawlo Covts. 569, n., where it is said: "Since Furman v. Kltnore (A. D. 1819, reported in a note to Mackey v. Collins, 2 Nott & McC. 189), it has been DETENTION OF PURCHASE MONEY BREACH OF COVENANT. 515 not, in such a case, go into a court of equity and obtain a rescission of the contract so long as he remains in undisturbed possession of the settled law of South Carolina that a covenant of warranty possessed also the properties of a covenant for seisin, and an eviction was not, there- fore, considered necessary to its breach. Hence, it was held that if a pur- chaser when sued for the purchase price, could establish to the satisfaction of the jury that he took nothing by his purchase, and that he would be ousted by the paramount title, they might find a verdict for the defendant, not on the ground that the failure of title was a rescission of the contract, but because the damages on the covenants were exactly equal to the purchase money andl interest, and it followed that where a portion of the land was so covered by paramount title damages could be assessed pro tanto, and such is the law at the present day," citing Farrow v. Mays, 1 Nott & McC. 312; Hunter v. Graham, 1 Hill, 370; Van Lew v. Parr, 2 Rich. Eq. 337; Jeter v. Glenn, 9 Rich. L. 378. It isi worth while to consider how far the rule thus stated by Mr. Rawle has been modified by more recent cases. In Lessly v. Bowie, 27 S. C. 193, 3 S. E. Rep. 199, which was an action to foreclose a purchase-money mortgage, a purchaser with general warranty resisted the payment of the purchase money on the ground of an outstanding paramount title in a stranger. 'Not having been evicted or disturbed in the possession it was held that he was not entitled to relief. The court after observing: " There has been much discussion in our courts as to whether a purchaser of land! who is in possession under general warranty may defeat an action for the purchase money by showing paramount outstanding title in another before he has been actually evicted," continued: "It certainly is remarkable that no case can be found in our reports in which damages to the extent of the purchase money have been recovered for a mere technical breach of the covenant of seisin alone, without actual damage sustained, or eviction. Indeed, the distinguished Chancellor JOHNSTON, in delivering the judgment of the old Court of Errors, in the case of Van Lew v. Parr, 2 Rich. Eq. (S. C.) 340 (1846), said: 'Arguments were drawn by counsel from a very extensive and critical examination of the laws and decisions of this State to show that as the law courts in certain cases allow damages upon breach of the covenants of deeds conveying lands, where there has been no previous eviction, equity should rescind the contract where the remedy at law is incomplete. The law courts seem to have been struggling for years to get clear of the early decisions allowing recoveries on the ground of failure of title without eviction, and they appear to have settled, at least in this result, that in actions brought for the purchase money, the purchaser may make a clearly subsisting outstanding title the ground of abatement for the contract value of such part of the premises as it may cover. It has been proposed as a just inference from this that where, from the remoteness or contingency of the outstanding title, law cannot give damages, equity should 1 interfere and rescind the contract. But apart from the incompetency of a court of equity to try the validity of the outstanding title, is it not obvious that the remoteness and contingency which renders it inapplicable at law, must necessarily make it equally uncertain what degree of importance should be 516 MARKETABLE TITLE TO KKAL ESTATE. the premises, in the absence of fraud or insolvency on the part of the vendor. 11 Judgment liens binding the warranted premises attached to it as a ground for rescission in equity? If the defect of title be such as authorizes a court of law to interfere, be it so. That is one of the advantages of his covenant to which equity leaves the purchaser. But if it be of such a nature that law declares him entitled to no relief in virtue of the security he has himself selected, as was the case in this instance, it seems a strained inference that the declaration entitles him to relief else- where. But without reopening the argument, we think the question has been finally settled by the more recent and well-considered cases, which concur in holding that, while a purchaser of land remains in quiet possession thereof he cannot sustain a bill for a rescission or abatement of price on the ground of an outstanding title, unless on the score of fraud.'" See, also, Childa v. Alexander, 22 S. C. 169 (1884); Bethune v. McDonald, 35 S. C. 88 (1891) ; 14 S. E. Rep. 674; Munro v. Long, 35 S. C. 354 (1891) ; 15 S. E. Rep. 553, each of which was an action to foreclose a purchase-money mort- gage. In Munro v. Long, supra, it was said: "It will be observed that this is not a case for the enforcement of an executory contract of sale, but it is an action for the purchase money of the property sold, of which the party is in the undisturbed, and, so far as the testimony shows, the unchallenged possession." In Gray v. Handkisson, 1 Bay (S. C. ), 278, it was held that the. purchaser was entitled to a rescission of an executed contract in case of an outstanding paramount title, though he had been evicted, but this case and those which follow it were subsequently disapproved in Johnson v. Purvis, 1 Hill (S. C. ), 32 repudiated the rescission, could not compel ppecific performance of the contraet until they should pay or tender th residue of the purchase money. Strange v. Watson, 11 Ala. 324. * Wallace v. Mclaughlin, 57 Ind. 53. SPECIFIC PERFORMANCE OF EXECUTORY CONTRACTS. 527 been put in possession, will foe required to pay the purchase money into court pending his suit for specific performance. 41 The excep- tions to this rule have been thus summarized; where the vendor has thought proper to put the purchaser into possession, upon an understanding between them that the latter shall not pay the purchase money until he has a title, the purchaser cannot be called upon to pay the money into court; and the reason is that the understanding becomes a matter of contract which the vendor must abide by, and he cannot call upon the court to interfere and com- pel the purchaser to part with his money before he has a title. 42 Nor will the purchaser be compelled to pay the purchase money into court before the completion of the title, where the vendor has voluntarily permitted him to take possession without any stipulation or agreement about paying the purchase money. 43 And, as a general rule, the court will not order purchase money to be paid before a title is given, unless under special circumstances such as taking possession contrary to the intention or against the will of the vendor, or where the purchaser makes frivolous objections to the title, or throws unreasonable obstacles in the way of completing the purchase, or is exercising improper acts of ownership, by which the property is lessened in value. 44 If the purchaser be in possession under a title anterior to the contract, or if possession were given independently of the contract, and there is laches on the part of the vendor in completing the title, the court will not order the purchase money to be paid in. 45 The purchaser, of course, will not lose his right to a specific performance of the contract by failing to make a formal tender of the purchase money if he has notice that the vendor cannot or will not carry out the agreement. 46 "Birdsall v. Walton, 2 Eclw. Ch. (N. Y.) 315. a Gibson, v. Clarke, 1 Ves. & B. 500. 48 Clarke v. Elliott, 1 Mad. C. R. 606. "I Sugd. Vend. (8th Am. ed.) 229, 345. Bonner v. Johnston, 1 Meriv. 366; Boothby v. Waller, 1 Mad. C. R. 197. 45 Freebody v. Perry, Coop. 91 ; Fox v. Birch, 1 Meriv. 105. "Ante, 87. Shattuck v. Cunningham, 166 Pa. St. 368, 31 Atl. Rep. 136; Wheeling Cr. Gas Co. v. Elder, 54 W. Va. 335, 46 S. E. 357; Lathrop v. Collieries Co., 70 W. Va. 58, 73 S. E. 299. Thus, where, at the time fixed for performance, the vendor repudiated the contract and refused to perform, 328 MARKETABLE TITLE TO REAL ESTATE. 195. LACHES OF PURCHASER. The purchaser's application for specific performance must be seasonably made, lie cannot delay the payment of the purchase money after the time rixed for completing: the contract and then, when the circumstances of the parties, and perhaps the value of the land, have changed, call upon the vendor for a conveyance. 47 This rule applies with peculiar force where the vendor notifies the purchaser to complete the con- tract within a specified time under penalty of rescission.* 8 But the purchaser will not be chargeable with laches where he has delayed paying the purchase money on account of doubts as to the title; the title itself being in litigation or dispute.* 9 196. DAMAGES IN EQUITY. As a general rule a court of equity will not entertain a suit by the purchaser of a defective title, if no other relief is asked than damages for breach of the contract. 50 Therefore, it has been frequently held that if he files a bill seeking specific performance or damages in lieu thereof, when he knows specific performance is impossible by reason of the fact that the defendant had conveyed the premises to an innocent third party, he will be denied relief, because such a proceeding is he could not afterwards put the purchaser in default by tendering a deed and demanding the purchase money which then the purchaser was unable to produce. Bateman v. Hopkins. 157 X. C. 252, 73 S. E. 133. <7 Shorthall v. Mitchell, 57 111. 161; Melton v. Smith, 65 Mo. 355, a case in which the vendor failed to show laches. Pomeroy v. Fullerton, 131 Mo. 581; 33 S. W. Rep. 173. 41 Chabot v. Winter Park Res. Co., 34 Fla. 258. 15 So. Rep. 756. Galloway v. Barr, 12 Ohio, 354; Keim v. Lindley, (X. J. Eq.) 30 Atl. Rep. 1003, where the subject was considered at length. Oreenblatt v. Her- mann. 144 X. Y. 13, 39 N. E. Rep. 966. Of. Barbour v. Hickey, 2 App. Cas. (D. C.) 207. M l Sugd. Vend. (8th Am. eel.) 350 (233); Rawle Covta. (5th ed.) ? 354. Courts of equity in England are empowered by " Lord Cairns' Act" (21, 22 Viet, c. 27, 185S) to give damages, but the jurisdiction is limited to cases in which specific performance is also prayed. Fry Sp. Perf. (3d Am. ed.) p. 607, notes: Hatch v. Cobb. 4 Johns. Ch. (X. Y.) 559: Kempslmll v. Stone. 5 Johns. Ch. (X. Y.) 193; Morse v. Elmendorf. 11 Paige Ch. (X. Y.) 270; Wiswall v. MeOowan, 2 Barb. (X. Y.) 270; Hill v. Fiske, 38 Me. 520; Smith v. Kelly, 56 Me. 64; Doan v. Maurr, 33 111. 227; McQueen v. Choteau, 20 Mo. 222: 64 Am. Dec. 178. Though the bill prays compensation in damages in case a marketable title cannot be given, it cannot be entertained as a hill to recover damages, the remedy of the plaintiff being at law. Van Keuren v. Siedler. 73 X. J. Eq. 239, 66 Atl. 920. SPECIFIC PERFORMANCE OF EXECUTORY CONTRACTS. 529 practically a suit for damages only. 51 The same rule will apply, it is apprehended, if the purchaser knows, or is bound to know, that the vendor from any other cause, will be unable to perform the decree of the court. But damages may -always be recovered in equity as an alternative or incident to some other relief which is in good faith the object of the suit. 52 If the vendor in his answer, himself asks for specific performance and a decree for the purchase money, he waives the objection that the purchaser's rem- edy is at law ; and the court may retain the action for the purpose of awarding damages. 53 If the vendor fail to complete his con- tract at the appointed time, the purchaser may have specific performance in equity; or, if the title be defective and perform- ance be impossible, he may have damages in lieu thereof, 54 unless 51 Sims v. Lewis), 5 Munf. (Va.) 29; Bullock v. Adams, 5 C. E. Gr. (N. J.) 367; Lewis v. Gale, 4 Fla. 437; Levy v. Knepper, 102 1ST. Y. Supp. 313, 117 App. Div. 163; Pub. Service Corp'n v. Meadows Co., *72 1ST. J. Eq. 285, 64 All. 976. "Cases cited in notes above. 2 Story Eq. Juris, 794, 799; 3 Pom, Eq. Jur. (2d ed.) 1410, note 1. Slaughter v. Tindle, 1 Litt. (Ky.) 358; Fisher v. Kay, 2 Bibb (Ky.), 434; Scott v. Bilgerry, 40 Miss. 119; Chinn v. Heale, 1 Munf. (Va.) 63; Taylor v. Rowland, 26 Tex. 293; O'Beirne v. Bullis, SO Hun (N. Y.), 570; 30 N. Y. Supp. 588; Margraf v. Muir, 57 N. Y. 155; Miles v. Furnace Co., 125 N. Y. 294, 26 N. E. Rep. 261. If a vendor is unable from want of title at the time of making the contract to carry it out, a court of equity in a suit by the purchaser for specific performance, will award him damages, provided he commenced the suit in good faith, without knowledge of the disability. Ryan v. Dunlap, (Mo.) 20 S. W. Rep. 29; McQueen v. Chou- teau, 20 Mo. 222, 54 Am. Dec. 178; Hamilton v. Hamilton, 59 Mo. 232. In Xew York in a suit for specific performance, if the defendant be unable to perform, the purchaser may have an order or judgment for the return of his purchase money, the defendant not having demurred on the ground that the action was improperly brought, or that the plaintiff had an adequate remedy at law. Styles v. Blume, 30 N. Y. Supp. 409. In Currie v. Cowles, 6 Bosw. (If. Y.) 452, it was said by ROBERTSON, J., that if the complainant in a suit for specific performance does not allege that good title cannot be made, and 1 merely seeks a conveyance, he cannot in the .absence of fraud on the part of the vendor waive the relief asked for., show defendant's want of title, and charge him with the value of the land. The authority of 'this dictum may be doubted. 6 Snow v. Monk, 80 N. Y. Supp. 719; 81 App. Div. 206. 54 Fry Sp. Perf. (3d Am. ed.) 1227. McFerran v..Tayk>r, 3 Cranch (U. S. S. C.) 270; Pratt v. Campbell, 9 Cranch. (U. S. S. C.) 456, 494. County of Mobile v. Kimball, 102 U. S. 691, 706. Stevenson v. Buxtoa, 37 Baxb. 67 530 MARKETABLE TITLE TO REAL ESTATE. the plaintiff knew when he brought his suit that there could be no performance. 55 If the purchaser is first informed of the de- fective title by the vendors answer or other pleading, the juris- diction to award damages will be clear. 56 And- if the vendor convey the premises to an innocent party pending the suit for specific performance, the purchaser will be entitled to damages. 57 In a few cases damages have Jbeen awarded the plaintiff though he knew when he brought his suit that the defendant had rendered specific performance impossible by conveying the premises to a purchaser without notice; 58 but in most of them the objection that the court had no jurisdiction does not appear to have been made, and the great weight of authority without doubt supports the rule heretofore stated. It has been held that if the complainant fail to make out a case entitling him to specific performance, the bill may, nevertheless, be retained for the purpose of allowing him compensation if ho has not a full and adequate remedy at law. 59 The converse of this proposition, also, has been decided, namely, that the court will (X. Y.) 13. Taylor v. Rowland, 26 Tex. 203. In Fisher v. Kay, 2 Bibb (Ky.), 436, it was said that there vas no principle better settled than that the obligee of a title bond might resort to a Court of Chancery in order to enforce specific performance, and that in the event of the obligorjs being unable to convey, to pray for a compensation in damages, which, the court being in possession of the whole case, would allow. In Welsh v. Bayard. C> C. E. Gr. (N. J. Eq.) 186, specific performance -was denied the purchaser, (1) because the contract was not in writing; and (2) because the title to the premises was in the defendant's wife. The purchaser asked 1 a decree for repayment of the purchase money, but this was refused on the ground that his remedy was at law. It does not appear that he was advised of the true state of the title when he brought his suit. If he was not so advised, the case is at variance with the current of authority. M 2 Story Eq. Jur. 794, ct aeq. M 3 Pom. Eq. Jur. $ 1410. Milkman v. Ordway, 106 Mass. 23:2. "This, however, in England seems to be only by force of a statute (1858) 21 A 22 Viet. c. 27 ("Lord Cairns" Act"), enlarging the jurisdiction of the Chancery Courta 1 Sugd. Vend'. (-Sth Am. ed.) 352t. "Woodcock v. Bennet, 1 Cow. (X. Y.) 711; 13 Am. Dec. 568. Gibbs v. Champion, 3 Ohio, 337. Cunningham v. D(|><-\\. Morn* (Iowa). 4(52. "Aday v. Echols, 18 Ala. 355; 52 Am. Dec. 225. Specific performance was denied in this case because it did not appear that all the purchase money had been paid. SPECIFIC PERFORMANCE OF EXECUTORY CONTRACTS. 531 entertain a bill solely for compensation and damages provided specific performance can be decreed. 60 The court, instead of giving compensation in damages for a por- ion of the land to which title cannot be made, has no power to decree that the vendor shall make up the deficiency out of other adjoining lands to which he has title, but which were not embraced in the contract. 61 The measure of damages for which a vendor, acting in good faith, is liable if he be unable to convey a good title, is the same in equity as at law ; namely, the purchase money with interest and costs. 62 But if the vendor be guilty of fraud, 63 or if he disabled himself from performing the contract by conveying the premises to an innocent purchaser, the complainant will be entitled to a decree for the loss of his bargain, that is, the increased value of the property. If the vendor received a profit at the second sale, it will be decreed to the complainant. 64 Berry v. Van Winkle, 1 Gr. Ch. (X. J.) 209; Copper v. Wells, Saxt. X. J. Eq.) 10. "Kelly v. Bibb, 3 Bibb (Ky.), 317. 63 Bain v. Fothergill, L. R., 7 H. L. 158; Burrow v. Scammell, 19 Ch. Dec. 175, 181, 223. "Ante, 97. 84 Sugg v. Stone, 5 Jones Eq. (X. C.) 126; Taylor v. Kelly, 2 Jones Eq. (X. C.) 240. Graham v. Hackwith, 1 A. K. Marsh. (Ky.) 424; Rutledge v. Lawrence, 1 A. K. Marsh. (Ky.) 390; Gerault v. Anderson, 2 Bibb (Ky.), 543. CHAPTER XVII. OF THE RIGHT OF THE PURCHASER TO TAKE TITLE WITH COM- PENSATION FOR DEFECTS. GENERAL RULE. 197. INDEMNITY AGAINST FUTURE LOSS. 198. INDEMNITY AGAINST DO WEB. 199. EXCEPTIONS TO GENERAL RULE. 200. RIGHT OF VENDOR TO RESCIND ON FAILURE OF TITLE. 201. 197. GENERAL RULE. We shall see that if the title to a sub- stantial part of the subject fails or if an incumbrance other than a trifling or inconsiderable charge on the premises is discovered after the purchase money has been paid, the purchaser may rescind the contract, if executory, and cannot be required to take the title with compensation for defects. 1 Yet there is no obligation upon him to rescind ; as a general rule he may compel the vendor to convey to him that part to which the title is good, with compensa- tion, or abatement of the purchase money for the portion to which the title failed, or he may take such estate as the vendor may have in the entire premises, though less than that which was sold, and have an abatement of the purchase money according to the differ- ence in value of the two estates. 2 The same rule has been applied Post, 326. 1 1 Sugd. Vend. (8lh Am. cd.) 479. 46ft. 4SO; 2 Story Eq. 779; 2 Beach Eq. Jur. 627; Pomeroy Sp. Perf. $ 438: Bisp. Eq. (3d ed.) 390; Dart's Vend. (5th ed.) p. 1006; Waterman on Sp. Perf. 5 499. Wood v. Griffith, 1 Swanst. 54, per Lord EI.DOX, who said: " Xo one will dispute this proposition that if a man offers to sell an estate in fee simple, and it appears that he is unable to make a title to the fee simple, he cannot refuse to make a title to nil that he has. The purchaser may insist on having the estate, such as it is. The vendor cannot say that he will give nothing because lie is unable to give all that he has contracted to give. If a person posAPHsed of a term for 100 years contracts to sell the fee, he cannot compel the purchaser to take, but the purchaser can compel hint to convey the term, and tbis court will arrange the equities Wtween the parties." Whoatley v. Slandon, etr., Ry. Co., L. R. 7 Ex. 26. "Wingate v. Hamilton, 7 Ind. 73. BUM v. Gilliland, 5 Ala. 761. 'Water* v. Travis, 9 Johns. (N. Y.) 450. EIGHT OF PURCHASER TO TAKE TITLE WITH COMPENSATION. 535 ground that he holds a bare legal title in trust for another, if the purchaser be willing to accept such title. 8 Nor can he object that the title is outstanding in a third person. 9 The purchaser may take the equitable title if he chooses, though, as will be seen here- after, he cannot be compelled to accept such a title. 10 The pur- chaser may compel a surviving tenant in common to convey, though the heir of the deceased tenant in common cannot be com- pelled to complete the contract. 11 If the parties are mutually mistaken as to the vendor's title to a part of the land, the pur- chaser, having improved the premises, may compel the vendor to convey the other part, and have a ratable abatement of the purchase money for the deficiency. 12 The vendor cannot refuse to convey on the ground that the property is incumbered. The purchaser has a right to insist upon the application of the unpaid purchase money to the incumbrance. 18 A charge upon the premises for the maintenance of a third person is no reason why the contract should not be specifically performed, if the purchaser be willing to take the title with warranty. 14 The basis upon which compensation or abatement for the part to which a title cannot be made will be decreed, is the actual value of the part lost, and not merely the average price per acre agreed to be paid for the whole tract. 15 The rule in this respect is the same as in actions at law for breach of the covenants for title. 16 If the title to the entire premises is good, but there is a deficiency in the acreage or quantity purchased, the question whether the Hyde v. Kelly, 10 Ohio, 215. Lathrop v. Collieries Co., 70 W. Va. 58; 73 S. E. 299. 1 Sugd. Vend. (8th Am. ed.) 525, 532 (349, 355). 10 Post, ch. 31, 290. "Atty.-Gen. v. Day, 1 Ves. 218. M Voorhees v. De Meyer, 3 Sandf. Ch. (N. Y.) 614. "Jerome v. Scudder, 2 Rob. (N. Y.) 169. Hunt v. Smith, 139 111. 296; 28 N. E. Rep. 809. "Bates v. Swiger, (W. Va.) 21 S. E. Rep. 874. "Jacobs v. Locke, 2 Ired. Eq. (N. C.) 286. Moses v. Wallace, 7 Lea (Tenn.), 413. Cypress Lumber Co. v. Tiller, 73 Ark. 354; 84 S. W. Rep. 490. Ante, 170." Doctor v. Hellberg, 65 Wis. 415; 27 N. W. Rep. 176. In determining the compensation, the peculiar value of the tract, if unincum- bered, to the complainant in connection with his other land, cannot be con- sidered. Capstick v. Crane, 66 N. J. Eq. 341 ; 57 Atl. Rep. 1045. 536 .MARKETABLE TITLE TO HEAL ESTATE. purchaser will be entitled to an abatement of the purchase money depends upon whether the contract was one of hazard as to the quantity, or whether the purchaser is entitled under the contract to demand a specific number of acres or other measure of quantity. The question is somewhat foreign to the plan and scope of this work. The cases, in great numbers, will be found collected in tin- standard text books. 17 If the purchaser when sued for the purchase money by the vendor or his assignee, elect to keep the premises though the title be defective, he cannot afterwards, when a bill is filed to subject his equitable interest in the premises to the payment of the judg- ment for the purchase money, avail himself of want of title in the vendor as a defense. 18 A decree for specific performance should not direct that the vendor procure releases from parties over whom he has no con- trol; but it should direct an inquiry by a master as to defects and incumbrances, and order that the purchase money be abated or paid to a referee or other officer of the court, or be brought into court, to be applied, as far as necessary, to the discharge of incum- brances, and the balance, if any, be paid over to the vendor. 19 The purchaser in possession and insisting upon specific per- formance of the contract with abatement of the purchase nmney as to that part of the land to which the title had failed, niu-t surrender that part to the vendor. He cannot refuse to pay the purchase money and at the same time retain possession. 20 The purchaser cannot maintain a suit to have the depreciation in value of the premises, by reason of defects in the title, deducted from the price, and to compel a conveyance on payment of the residue. 21 The fact that the purchaser agrees to take the title subject to an incumbrance and does not insist upon an abatement of the "Fry Sp. Perf. (3d eel.) p. 57R. <-l w/. ; 1 Siigd. Vend. (9th Am. ed.) 101 (324) ; 2 Story Eq .Tur. <-h. 10. Sop Ketch urn v. Stout. 20 Ohio. 453. where the- mihjert is elaborately dicu-iMwed, and many authorities collected. "Dart v. McQuilty, C Ind. 391. "Jerome v. Soudder, 2 Rob. (X. Y.) 169. "Lanyon v. Cbesney, 186 Mo. 540. "Leerburger v. Watoon, 134 N. Y. Supp. 818; 76 Misc. Rep. 3. EIGHT OF PURCHASER TO TAKE TITLE WITH COMPENSATION. 537 purchase price, does not justify the inference that he intended to stand the loss resulting from the incumbrance. 22 The purchaser must, within a reasonable time, elect whether he will take the title with abatement of the purchase money or compensation for defects; and in default of such election the vendor may treat the contract as abandoned and otherwise dispose of the property. 2 * 198. INDEMNITY AGAINST FUTURE LOSS. The purchaser cannot demand an indemnity other than that afforded by the cove- nants for title, against a possible loss from a defect in the title to the estate, 24 or an incumbrance on the property, except in the case of an inchoate right of dower in the premises, 25 if indeed the deten- tion of the purchase money to the extent of the present value of that right be regarded as indemnity and not compensation. Per- haps the most important case that has arisen in the United States illustrating this principle, is that of Refeld v. Woodfolk, 22 How. (TJ. S.) 318. There the purchaser of a large estate paid the pur- chase money in full, knowing that there was an incumbrance on the property amounting to $60,000. Afterwards he filed a bill for specific performance, and that the vendor be compelled to remove the incumbrance from the property or to indemnify him against it when it should mature and become enforceable. The court decreed that the vendor convey the property with general warranty ; that he remove the incumbrance when it should mature, and that in the meanwhile he deposit State bonds, to the amount of the incumbrance, with the clerk of the court as an indemnity against the possible enforcement of the incumbrance. This decree was reversed on appeal, the court holding that the purchaser had "Paris v. Golden, 96 Kan. 668; 153 Pac. 528. "Neill v. McClung, 71 W. Va. 458; 76 S. E. 878. 24 Sugd. Vend. (SthiAm. ed.) 467 (306) 574 (383) ; Fry Sp. Perf. (3d Am. ed.) 1245; Batten Sp. Perf. Law Lib. 171. Balmanno v. Lumley, 1 Ves. & Bea. 225, per Lord ELDON; Paton v. Brebner, 1 Bligh, 66; Aylett v. Ashton, 1 Myl. & Cr. 105; Bainbridge v. Kinniard, 32 Beav. 346; Ross v. Boards, 3 Xev. & Per. 382; Lawrenson v. Butler, 1 Sch. & Lef. 13>; Mortlock v. Butler, 10 Ves. 2&2; Golver v. Clay, 7 Beav. 188. Lounsbery v. Locander, 25 N". J. Eq. 554. 25 Young v. Paul, 10 N. J. Eq. 415; 64 Am. Dec. 456. Post, this chapter. 68 538 MARKETABLE TITLE TO REAL ESTATE. no right to any other or greater indemnity than that afforded by the covenant of warranty which his contract entitled him to demand. A different rule has been held to prevail, where the contract has been executed by the delivery of a conveyance with a covenant against incunibrances. The reason given for the dis- tinction is that in an executory contract for the sale of lands there can be no implication of an agreement to provide an indemnity against an immature or doubtful incumbrance upon the estate. 26 199. INDEMNITY AGAINST INCHOATE BIGHT OF DOWER. If the wife refuse to join with her husband in the conveyance, she cannot be compelled so to do. 27 The purchaser may of course elect to accept the conveyance of the husband alone. 28 Whether, in such a case, he may demand an abatement of the purchase money, as an indemnity against a possible claim for dower in the future, is a question upon which there is a conflict of decision ; but the weight of authority and the better view seems to be that the purchase money may be abated. 29 If the written contract between "In Thomas v. St. Paul's M. E. Church, 86 Ala, 138; 5 So. Rep. 508, the vendor was required to provide the purchaser with an indemnity against an incumbrance on the premises. The case was distinguished from Refeld v. Wool folk, supra, hy the fact that the contract had been executed by convey- ance with covenant against inoumbrances, while in the latter caw the eon- tract was merely executory. The former case may, therefore, be regarded as establishing the proposition that in case of a contract executed with a cove- nant against incumbrances, the grantee may in equity require the vendor either to remove the incumbrance, or provide an indemnity against it. There is also an intimation in this case that if the contract had provided that if the purchaser had received * whrre the purchaser might in equity avail himself of a paramount title acquired from a rtranger, an against hi* vendor. In Shelly v. MUckehon, (N. Dak.) 63 N. W. Rep. 210, the vendor aban- doned the contract and old and conveyed the premises to a stranger, and the original vendee then bought in the stranger's title so acquired, and it was held that he might set up the same against the vendor when sued upon the original purchase-money notes. OF THE RIGHT OF THE PURCHASER TO PERFECT THE TITLE. 551 money, if any. 3 A familiar illustration of these principles is afforded by the rule that a purchaser from one who holds under a void patent cannot enter and locate the land for himself, and then seek to rescind his contract and avoid the payment of the pur- chase money. 6 Of course the legal title acquired by the purchase from the adverse claimant is not affected by the relations existing between the vendor and vendee. Equity may compel the pur- chaser to pay the vendor the balance justly coming to him under the contract, but cannot divest the purchaser of the title fairly acquired. 7 ]^or does the purchase of an outstanding title amount to an election on the part of the purchaser to rescind the contract, nor deprive him of his rights thereunder against the vendor. 8 In practice the application for specific performance where the purchaser has acquired the adverse title, is usually accompanied by a prayer for an injunction against proceedings to collect the purchase money. Indeed, the acquisition of the adverse title is more frequently availed of as a defense to an action for the pur- chase money than in any other way; but of course there may be cases in which it may be to the purchaser's interest to seek affirma- tive relief in equity. In either case the principle upon which relief is afforded the purchaser is the same. The purchaser will not be entitled to an abatement of the pur- chase money on account of an outstanding title which he buys in, unless he shows that such title was necessary to protect his own, and was one to which he must have yielded ; 9 in other words, the 5 An exception to this rule exists where the outstanding title acquired is that of the State. Ante, 168. "Searcy v. Kirkpatrick, 1 Overt. (Teim.) 421. Galloway v. Finley, 12 Pet. (U. S.) 264, where held also that he could not be allowed for expenses of the entry and survey, the same having been made for the purpose of defeating his vendor's title. Thredgill v. Pintard, 12 How. (U. S.) 24. Gallagher v. Wither- ington, 29 Ala. 420. Frix v. Miller, 115 Ala. 476; 22 So. Rep. 146. Hollo- way v. Miller, 84 Miss. 776; 36 So. Rep. 531. See post, "Estoppel," 219, and ante, 168. 'Language of AGNEW, J., in Thompson v. Adams, 55 Pa. St. 479. 8 Getty v. Peters, 82 Mich. 661 : 46 X. W. Rep. 1036, where it was held that one Who buys in land at a tax sale to protect himself as purchaser is not, when sued in ejectment by the vendor, forced to rely on the tax title, and estopped from claiming under the contract of sale. 9 Nicholson v. Sherard, 10 La. Ann. 533. In Lee v. Porter, 5 Johns. Ch. ,~Ml2 MAKKETABLE TITLE TO REAL ESTATE. transaction must have been such as would amount to a constructive eviction. 10 In a cast- in which the purchaser bought in an adverse claim, and it did not appear whether the title so acquired was paramount or not, it was held that the court erred in decreeing uirainst the purchaser without referring- the case to a commissioner to inquire into the validity of the adverse claim." The price paid by the purchaser, however, to obtain the outstanding title is not conclusive of the value of that title, and it devolves upon him to show that such price was not in excess of the value of the out- standing interest. 11? will receive credit on the purchase money only for the actual value of the adverse title 80 acquired. 12 Where the purchaser buys in an inchoate right of dower, he will not be allowed the sum so expended, unless he shows that such sum was the fair value of the right. 13 In America it is a common practice among conveyancers to procure him whose outstanding interest has been gotten in to join in the conveyance, which, as to such party, is usually a quit claim or release, few persons under such circumstances being willing to convey with general warranty. This, perhaps, is all that is needed where the interest is present and subsisting. If, however, the purchaser desires to guard against a future, anticipated or pros- j>ective interest in the party, he should require either a conveyance with general warranty, or one in which the intent to convey an estate of a particular description is clearly manifested, otherwise he may lose the estate, under the general rule that a quit claim or release is insufficient to pass an after-acquired estate. 14 203. BY THE DISCHARGE OF LIENS AND INCUMBBANCES. The purchaser may at all times apply the unpaid purchase money to the discharge of valid incumbrances binding the land in his (K. Y.) 268. the chancellor doubted whether relief should be given the pur- rhaw in oonHequence of an outstanding claim which he for greater caution ehooH** to buy in l*>fore it hns received judicial sanction, in a. suit to which all prntonH in intercut were partic*. or were called upon to acrt their title. "Ante. | 150. "Smith r. l'arwm. 33 W. Va. 644: 11 S. E. Rep. 68. "I'tr v. Mitchell. 23 Ark. 590; 70 Am. Dec. 114. "McTord v. Ma*y. 155 111. 123: 30 X. E. Rep. 592. M Pwt, " frtoppel." | 218. OF THE RIGHT OF THE PURCHASER TO PERFECT THE TITLE. 553 hands, and which his vendor is bound to remove. 10 The existence of an incumbrance on the premises is no ground for rescission so long as it may be discharged with the unpaid purchase money. 16 Having paid off the incumbrance, the purchaser may, of course, demand a specific performance of the contract. 17 Such applica- tions, however, are infrequent except in connection with suits to stay the collection of the purchase money. Or in a suit by him- self for specific performance, the purchaser may have the pur- chase money in his hands applied to the discharge of incum- brances. 18 In Alabama it has been held that the amount so dis- bursed by the purchaser cannot avail him as a set-off in an action for the purchase money, nor as a defense under the plea of failure of consideration, and that his remedy is exclusively in equity. 19 But the rule is doubtless otherwise in the States in which equitable defenses may be made at law. The purchaser may not only apply the unpaid purchase money to the discharge of valid incumbrances of which he has notice, but he is required so to do ; and he cannot defeat an action for the pur- chase money on the ground of a sale and eviction under an incum- brance, which he might have paid off Avith the purchase money. 20 15 2 Sugd. Vend. (8th Am. ed.) 201 (555). Smith v. Pettus, 1 Stew & R (Ala.) 107. Owens v. Salter, 38 Pa. St. 211, where the purchaser paid off certain tax liens. Smith's Appeal, 177 Pa. St. 437; 35 Atl. 680; Forthman v. Deters, 206 111. 159; 69 ST. E. Rep. 97. Washer v. Brown, 5 N. J. Eq. 81. Hrdlicka v. Evans, 165 Iowa 207; 145 N. W. 84. In the English practice the purchaser at a judicial sale may apply to the court for leave to pay off incumbrances on the premises, appearing from a report in the cause, and pay the residue of the purchase money into the bank. Where the incumbrance does not appear on the report the leave will not be granted if any of the parties object or are incompetent to consent. 1 Sugd. Vend. (8th Am. ed.) 148. 19 Greenby v. Cheevers, 9 Johns. (N. Y.) 126. Irvin v. Bleakly, 67 Pa. St. 24. 17 A purchaser may buy in the land at a foreclosure sale under proceedings against his vendor, and having thus extinguished the incumbrance, require specific perf'ormande by the vendor. Berry v. Walker, 9 B. Mon. (Ky. ) 464. "As in Washer v. Brown, 1 Halst. (X. J. Eq.) 81. 19 Cole v. Justice, 8 Ala. 793. 20 Mellon's Appeal, 32 Pa. St. 121; Clark v. Clark, 1 Grant (Pa.), 33; Harper v. Jeffries, 5 Whart. (Pa.) 26; McGinnis v. Noble, 7 W. & S. (Pa.) 454; Garrard v. Lautz, 2 Jones (Pa.) 186. YO 554 MAKKETABLE TITLE TO REAL ESTATE. This nile, however, does not apply where the purchase money had not become due at the time of sale under the incumbrance, 21 nor AY here the vendor has expressly agreed to pay off the incum- brance. a In a case in which the vendor refused to remove the incumbrance and told the purchaser if he \vanted his rights to sue for them, it was held that there was no obligation on the part of the purchaser to apply a part of the unpaid purchase money to the discharge of the incumbrance, and that he was entitled to recover his deposit and expenses. 23 If the purchaser pays money ircnerally to one having an incumbrance on the premises, and also an unsecured debt against the vendor, the money Avill be held to have been paid in discharge of the incumbrance. 24 The purchaser takes the risk of the validity of the incumbrance which he removes and of the liability of the vendor therefor. 25 In a case, however, in Avhich the vendor had received an indemnity from Jits vendor against a supposed incumbrance, and upon a resale of the property agreed Avith his A^endee to remove the incuin- brance, it was held that he was estopped from denying the validity of the incumbrance as against such vendee who had rernoA'ed it. 2 * The purchaser must exercise great caution in paying off ineum- brances constituting securities for the purchase money and Avhich pass Avith a transfer of instruments evidencing the purchase-money debt, for example, the transfer of negotiable notes secured by purchase-money mortgage or deed of trust. In such a case, a sub- purchaser taking the property charged with a purchase-money mortgage would probably deem himself safe in discharging the mortgage and holding it against his vendor. If, hoAvcA*er, the mortgage was made to secure negotiable notes for the purchase money, and these haA*e been before maturity transferred to a pur- chaser for value, the mortgage might still be enforced in f.iA'or "IVentler v. Brown, 1 Jonw (Pa.). 205; \CoG5nnis v. NoMe, 7 W. & S. (PH.) 454. "Stevenson v. Mntlirrx. fl7 Town, 12.1. "Own v. Hernz, 37 N. Y. Supp. RS7: 2 App. Div. 255. M 2 Supd. Vend, (fith Am. ed.) 201 (555), citinp Brett v. Marsh, 1 Vern. 488; Ilayward v. Ixrniax, 1 Vern. 24; Peters v. Anderson, 5 Taunt. 500. Ante. || 183. 150. * Hardier* v. Mitrhum, 51 Ala. 151. OF THE RIGHT OF THE PURCHASER TO PERFECT THE TITLE. 555 of the transferee, notwithstanding payment in full by the sub- purchaser to the original vendor, that is, the mortgagee and payee of the notes. 27 It has been held that a purchaser of lands with notice of a claim against the land, will, if he pays the purchase money to the vendor, be liable to the holder of the claim, to the extent of the purchase money remaining unpaid when he received notice. 28 The purchaser can have credit on the purchase money for no more than the amount he actually pays out to remove the incumbrance. 29 204. SUBROGATION OF PURCHASER. The purchaser will not only be entitled to credit on the purchase money for incum- brances or liens which he discharges, but he will be subrogated to all the rights, remedies and priorities of the incumbrancer against third persons. 30 As against the vendor, however, as before observed, he can only claim reimbursement to the extent of the amount actually paid out by him in discharge of the incum- brance. 31 But to that extent he will be subrogated to the benefit "Windle v. Bonebrake, 23 Fed. Rep. 165. McLain v. Coulter, 5 Ark. 13. 28 Green v. Green, 41 Kans. 472; 21 Pac. Rep. 586, citing 2 Story Eq. (llth ed.) p. 829; Bush. v. Collins, 35 Kans. 535; 11 Pac. Rep. 425, personal prop- erty. Dodson v. Cooper, 37 Kans. 346: 15 Pac. Rep. 200; Burke v. Josnson, 37 Kans. 337; 15 Pac. Rep. 204. Hardin v. Harrington, 11 Bush (Ky.), 367. 29 2 Sugd. Vend. (8th Am. ed.) 202 (555), a,nd cases there cited. In Bryan v. Salyard, 3 Grat. (Va.) 188, a purchaser who was directed by decree to pay a sum of money to a third person out of the purchase money, and who obtained a compromise of the decree, was allowed only the sum actually paid by him, as a credit on the purchase money. 30 Sheld. Subrogation, 28, et seq. See cases collected, 24 Am. & Eng. Encyc. L. 253, et seq. Downer v. Fox, 20 Vt. 388. Champlin v. Williams, 9 Pa. St. 341. Furnold v. Bank, 44 Mo. 336. Wall v. Mason, 102 Mass. 313. Peet v. Beers, 4 Ind. 46; Troost v. Davis, 31 Ind. 34; Spray v. Rodman, 43 Ind. 225. The purchaser cannot, by virtue of the doctrine of subrogation, enforce against the real owner an incumbrance, which for any reason, the incumbrancer himself could not have so enforced. Brown v. Connell, (Ky.) 12 S. W. Rep. 267. 31 A vendee purchasing his vendor's title at a sheriff's sale cannot withhold the unpaid purchase money from his vendor, except what he expended in buy- ing in the title. Tod v. Gallaher, 16 Serg. & R. (Pa.) 261; 16 Am. Dec. 571; Harper v. Jeffries, 5 Whart. (Pa.) 26; McGinniss v. Noble, 7 W. & S. (Pa.) 454; Harrison v. Soles, 1 Pa. St. 393; Renshaw v. Gans. 2 Pa. St. 117; Dentler v. Brown, 11 Pa. St. 295; Garrard v. Lantz, 12 Pa. St. 186; Mel- Ion's Appeal, 32 Pa. St. 121. 556 .MARKETABLE TITLE TO REAL ESTATE. of the lien or iiieuiubrancc as against the vendor as well as third persons. And inasmuch as the doctrine of subrogation is the creature of equity and in nowise dependent upon or arising from contract between the parties, and is enforced in favor of any person who is compelled to discharge a lien or incumbrance for his protection, no reason is perceived why the purchaser would not be entitled to the benefit of a lien which he discharges, though he had accepted a conveyance without covenants for title. 32 The purchase money paid by one who purchases at a sale made to enforce a judgment or other lien on security upon land, goes to the discharge of the judgment or security. If, therefore, the sale be void by reason of any error, imperfection or irregularity in the proceedings in which such judgment is obtained, or sale made, the purchaser will be subrogated to the benefit of such judgment or other lien, and by proper proceedings for that purpose, may en- force the same, for his reimbursement. 88 The doctrine of subrogation is enforced only in courts of equity ; hence, he who seeks this form of relief must himself do equity. Therefore, it has been held that a subsequent purchaser, with notice of the prior purchase, who pays off a lien on the land, will not be substituted to its benefit, so as to deprive the first purchaser of his bargain." If, however, ho receives notice after he has paid the purchase money, no reason is perceived why he should not be permitted to protect himself by acquiring the rights of outstanding incumbrancers. "Pout, ch. 27, 5 2(17. "Freeman Void Jud. Rales. 5 50. Valle v. Fleminp. 20 M<* 152: 77 Am. Dec. 557; Henry v. MoKerlie. 73 Mo. 41. Tlmlpin v. Hiidpin. 6 Orat. (Va.) 320; 52 Am. Dec. 124. Blodjjett v. Hitt, 2 Wi. 184. Shepherd v. MeTntiro, 5 Dana (Ky.). 574; McLanphlin v. Daniel, 8 Dana (Kv.), 183. French v. On-net. 56 Tex. 273. Bat T. Swiger, (W. Va.) 21 S. E. Rep. 874, CHAPTER XX. OF SPECIFIC PERFORMANCE OF COVENANTS FOR TITLE. GENERAL RULES. 205. COVENANT AGAINST INCUMBRANCES. 206. CONVEYANCE OF AFTER-ACQUIRED ESTATE. 207. 205 GENERAL RULES. Specific performance of an execu- tory contract for the sale of lands consists, on the part of the vendor, in the delivery of possession to the purchaser and in the execution of a proper deed, conveying such an estate as the contract requires; and on the part of the vendee, in the payment of the purchase money and the acceptance of such conveyance. Applica- tions to equity for specific performance are principally confined to cases in which the contract remains executory, but the jurisdiction is also exercised to compel the grantor to perform certain of his covenants for title. 1 The covenant for further assurance is, in substance, that the grantor, his heirs, etc., will at any time and upon any reasonable request, at the charge of the grantee, his heirs, etc., do, execute, or cause to be done or executed, all such further acts, deeds and things, for the better, more perfectly, and absolutely conveying and assuring the said lands and premises, etc., as by the grantee, his heirs, etc., his or their counsel in the law, shall be reasonably devised, advised or required. 2 This language clearly embraces the removal of incumbrances upon the premises which may be discov- ered after the purchase money has been fully paid; and it has frequently been held that the covenantor may, thereunder, be compelled to pay off and discharge all such charges on the land. 3 It has been said, however, that if the other covenants in the deed are special or limited, the grantor can be compelled to remove only 1 Werner v. Wheeler, 127 N". Y. Supp. 158 1 ; 142 App. Div. 358. J Va. Code, 1887, 2451. *Sugd. Vend. (8th Am. ed.) 285; Rawle Covts. (5th ed.) 104, 362. Stock v. Ayhvard, 8 Ir. Cli. 429. Nejson v. Harwood, 3 Call (Va.), 342, McClaugherty v. Croft, 43 W. Va. 270; 27 S. E. Rep. 246. [557] 558 MARKETABLE TITLE TO REAL ESTATE. such iucumbrances as may have been created by himself or those claiming: under him. 4 The nature and extent of the " further assurance " will of course be governed by that of the estate originally conveyed. The cove- nantor cannot be compelled to assure to the covenantee a greater estate than that concerning which the covenant was made. 6 It has been said that the jurisdiction of equity in the specific performance of covenants for title has been exercised in marshalling the assets of a bankrupt's or decedent's estate. 6 This, however, seems to in- volve no principle of specific performance, unless specific per- formance consist in the payment of damages for a breach of covenant, but rather to consist in the enforcement in equity of a legal liability of the heirs or estate of the covenantee upon his covenants. 7 The doctrine of specific performance has, of course, no applica- tion to the covenants of warranty, of seisin, of good right to con- vey, and for quiet enjoyment. There is nothing for the covenantor to do in lieu of payment of damages for the breach of these covenants. 8 By analogy to the rule that a covenantee paying off incum- brance* upon the premises cannot recover damages against the covenantor in excess of the purchase money and interest, it would probably be held that the latter could not be compelled to remove an incumbrance which exceeded the purchase money and interest.' *Rawle Covts. S$ 105, 363, citing Armstrong v. Darby, 26 Mo. 517, which, however, was not a suit for specific performance, but an action in which the plaintiff nought to recover for an incumbrance on the premises which ho had paid off, after requesting the covenantor so to do, which request was refused. Rawle Covts. (5th ed.) ($ 104, 363. Davis v. Tollemache, 2 Jur. (N\ S.) 1181, where it wan wid: "The utmost extent to which the court has gone, with reference to covenants for further assurance, has been to extend their operation to that very estate and interest which are conveyed by the deed." Rawle Covts. (5th ed.) f 364. 'A* in Higgin* v. Johnson, 14 Ark. 301); 60 Am. Dec. 544. Haffoy v. Birchcttn. 11 Leigh (Va.),83. Tallman v. Green. 3 Sandf. (X. Y.) 437. Tuite v. Miller, 10 Ohio, 382. 'Ante. | 131. The remedy for a breach of warranty i limited to an action to recover damages for the breach; a suit for specific performance of the covenant cannot I* maintained. Tropico Land Co. v. Lambourn, 170 Cal. 33; 14S Pac. 200. OF SPECIFIC PEBFORMANCE OF COVENANTS FOR TITLE. 559 It has been so held where the conveyance contained a covenant of warranty, but no covenant against incumbrances. 10 206. COVENANT AGAINST INCTJMBRANCES. Whether under a covenant against incumbrances alone, the grantor can in equity be compelled to remove an incumbrance OH the premises, seems to be a doubtful question. Mr. Rawle expresses his opinion in the negative, conceiving that in equity, as at law, a covenantee who has suffered no actual damages from the presence of the incumbrance, is entitled to no relief. 11 There are cases, however, which hold the affirmative of this question, and, to our mind, establish the better doctrine. 12 There seems to be little reason or justice in a rule which, after the purchaser has exhausted all his resources in pay- ing for the property, requires him to submit to an eviction under an incumbrance which he cannot satisfy, and turns him round to his action upon the covenant, which, for many obvious reasons, may prove unavailing, or, at least, inadequate for his relief. 13 "East Tenn. Nat. Bank v. First Nat. Bank, 7 Lea (Tenn.), 420. In this case the purchaser took a conveyance with warranty, and afterward dis- covered that the vendor had fraudulently concealed the existence of a prior vendor's lien on the premises; much exceeding the consideration money. It was held that he was entitled to a rescission of the contract on the ground of fraud, but that there being no covenant against incumbrances the grantor could not be required to remove the vendor's lien. "Rawle Covts. for Title (5th ed.), 361. "Story's Eq. Jur. 717a, where it is said: "There is no pretense for the complaints somejtimes made by the oommon-law lawyers, that such relief (specific performance) in equity would wholly subvert the remedies by actions on the case and actions of covenant; for it is against conscience that a party should have a right of election whether he would perform his covenant, or only pay damages for the breach of it. But, on the other hand, there is no reasonable objection to allowing the other party, who is injured by the breach, to have an election either to take damages at law or to have a specific per- formance in equity, the remedies being concurrent but not coextensive with each other." See, also, Ranelagh v. Hayes, 1 Vern. 189; 2 Gas. in Ch. 146; Power v. Standish, 8 Ir. Eq. 526. Burroughs v. McNeill, 2 Dev. & Bat. Eq. (N. C.) 297. See, also, other cases cited Rawle Covts. for Title (5th ed.), p. 610, n. Contra, Tallman v. Greene, 3 Sandf. (N. Y.) 437. " It may be thought that these observations would apply as well to the removal of adverse claims to the premises where there is a covenant of war- ranty instead of a covenant against incumbrances. The cases, however, are not parallel; the difference is, that the incumbrancer is bound to receive payment of his incumbrance from the covenantor, or indeed from any one not a volunteer; while an adverse claimant cannot be compelled to part with his rights for a pecuniary consideration. 560 MAKKETABLE TITLE TO REAL ESTATE. 207. CONVEYANCE OF AFTER-ACQUIRED ESTATE. \Ve shall see that, as a general rule, the effect of a conveyance with covenants for title, and in some cases without covenants, if an intent to pass an estate of a particular description appear, is to estop the grantor from afterwards asserting an after-acquired title to the estate, and that it has been sometimes held that the estoppel itself operates as a conveyance to the covenantee. 14 Nevertheless, under a covenant for further assurance, the grantee may in equity compel the grantor to convey to him the after acquired title, if he should deem such a conveyance necessary or expedient. 15 And even in the absence of a covenant for further assurance, it is appre- hended that a court of equity would compel a conveyance of tin- after-acquired title to the grantee. 18 14 Post, " Estoppel." Ch. 21. **2 Sugd. Vend. (8th Am. ed.) 294 (613); 3 Washb. R. Prop. (4th 479 (667) ; Rawle Covts. (5th ed.) 362. Taylor v. Debar, 1 Ch. CHS. -J74. Heath v. Crealock, L. R., 18 Eq. 215, 242: 10 Ch. App. 30. Gen. Finance Co. T. Liberator Society, L. R., 10 Ch. Div. 15. Lewis v. Baird, 3 McL. (U. fi 56, SO, oft. diet. Reese v. Smith, 12 Mo. 315, oft. diet. Henderson v. (hvrton. 2 Yerg. (Tenn.) 307; 24 Am. Dec. 492, oft. diet. Pierce v. Milwaukee R. Co.. 24 Wis, 554; 1 Am. Rep. 203. *Steiner v. Bauphman, 12 P. St. 107, 108, where it was said by GIBSOX, C. J., that if the vendor had subsequently purchased a part of the promi~i'-. equity would compel him to convey it over again in order to make pocxi hi- former deed; and this, for the reason that he had received value for it. In 1 Sngd. Vend. (8th Am. ed.) 533, it is said that if a man sell nn estate to which he had no title, and after the conveyance acquire th<> title, ho will be compelled to convey it to the purchaser. The proposition is not restricted to case* in which there are covenants for title. See, also, Came v. Mitchell. 10 Jur. 909. CHAPTER XXI. ESTOPPEL OF THE GRANTOR. GENERAL RULES. 208. AFTER ACQUIRED ESTATE MUST BE HELD IN SAME RIGHT. 209. MUTUAL ESTOPPELS. 210. ESTOPPEL OF MORTGAGOR. 211. EFFECT OF VOID CONVEYANCE AS AN ESTOPPEL. 212. EFFECT OF ESTOPPEL AS AN ACTUAL TRANSFER OF THE AFTER-ACQUIRED ESTATE. 213. RIGHTS OF PURCHASER OF THE AFTER-ACQUIRED ESTATE FROM THE COVENANTOR. 214. COMPULSORY ACCEPTANCE OF THE AFTER-ACQUIRED ESTATE IN LIEU OF DAMAGES. 215. WHAT COVENANTS WILL PASS THE AFTER- ACQUIRED ESTATE. 216. ESTOPPEL NOT DEPENDENT ON AVOIDANCE OF CIRCUITY OF ACTION. 217. EFFECT OF QUIT-CLAIM BY WAY OF ESTOPPEL. 218. ESTOPPEL OF GRANTEE. 219. RESUME. 220. 208. GENERAL RULES. Estoppels are of two kinds : 1st. Estoppel in pais, or that which arises from the acts and conduct of the party ; thus, if I induce another to purchase property by repre- senting that the right of the vendor to sell is clear and undisputed, having myself at that time a claim to that property, I will be es- topped or precluded from afterwards asserting that claim as against the vendor or his assigns. 1 2d. Estoppel by deed, or that which arises from the covenants or recitals in a deed, by which the grantor makes it appear that he is the rightful owner of the estate therein described ; in such case if the grantor have no title at the time of the conveyance, but afterwards acquire it, by descent or purchase, the law will not permit him to assert the same against his grantee, he being estopped to deny that he had, at the time when he executed the deed, the title or the estate described therein. 8 J 2 Sugd. Vend. (8th Am. ed.) 507 (743). 2 Washb. Real Prop. 69: Bigelow Estoppel, p. 453; Rawle Covt. 250; Gr. Cruise Dig. ch. 26, 51; Judge HARE'S note, 2 Sm. L. Cas. (ed. 1866) 723. 71 [561] 562 MARKETABLE TITLE TO REAL ESTATE. The reason of this rule in large measure is that cimiity of action. is thereby avoided, or rather the subsequent acquisition of the estate by the grantor satisfies his covenants and prevents an action by the covenant ee where he has sustained no actual damage from a breach Watkins v. Wasscll. 15 Ark. 73. Doe v. Quinlnn, 51 Ala. 539. Croft v. Thornton, 125 Ala. 301; 28 So. Rep. 84. Klumpki v. Baker, 68 Cal. 559; 10 Pae. Rep. 197. U'Bannon v. Paremour, 24 Ga. 489: Linsey v. Ramsey, 22 Ga. 027; Parker v. Jones, 57 Ga. 204. Hoppin v. Hoppin, 96 111. 265; Jones v. Kinp, 25 HI. 3S4. Whitson v. Grosvenor, 170 111. 271; 48 N. E. Rep. 1018; Owen v. Brookport, 208 111. 35; 69 X. E. Rep. 952. Glendinning v, Oil Co., 162 Iml. 642; 70 X. E. Rep. 976. Logan v. Steele, 4 T. B. Mon. (Ky.) 430; Dickinson v. Tallxit, 14 B. Mon. (Ky.) 49 (65); Logan v. Moore, 7 Dana (Ky.), 74. Benton v. Sentell, 50 La. Ann. 89; 24 So. Rep. 297. Williams v. Williams, 31 Me. 392. Funk v. Newcomer, 10 Md. 301; Williams v. Peters. (Md.) 20 Atl. Rep. 175. Lee v. Clary, 38 Mich. 223; Smith v. Williams, 44 Mich. 240; 6 X. W. Rep. 602. Dye v. Thompson, 126 Mich. 597; 85 X. W. Rep. 1113 Kaiser v. Earhart, G4 Mjss. 492; 1 So. Rep. 635. Jewell v. Porter, 11 Post (X. H.) 39; Thorndike v. Xorris, 4 Post. (N. II.) 454. Gough v. Bell, 21 X. J. L. 150; Moore v. Rake, 26 X. J. L. 587. Jackson v. Winslow, 9 Cow. (X. Y.) 18. Wellborn v. Finley, 7 Jones L. (X. C.) 228. Hallyburton v. Slagle, 130 X. C. 482; 41 S. E. Rep. 77. Pollock v. Speidel, 27 Ohio St. 86; Broadwell v. Phillips, 30 Ohio St. 255. Taggart v. Rislev, 3 Oreg. 306. Harvie v. Hodge, Dudley fS. C.), 23-; Reeder v. Craig, 3 McCord (S. C.) t 411; Wingo v. Parker, 19 S. C. 9. Johnson v. Branch, 9 S. Dak. 116; 69 X. W. Rep. 173. Robertson v. Gaines, 2 Humph. (Tenn.) 367, where an executor's deed with warranty, was held to estop a devisee, who had .shared in the proceeds of the executor's sale, from setting up an after-acquired title to the land. Walker v. Arnold, 71 Vt. 263; 44 Atl. 351. Mann v. You::?, 1 Wash. (T'y.) 454. Mitchell v. Petty, 2 W. Va. 470; 98 Am. Dec. 777. Clark v. Lambert, 55 W. Va. 512; 47 S. E. Rep. 312. Yock v. Mann (W. Va.). 49 S. E. Rep. 1019. Balch v. Arnold (Wyo.), 59 Pac. Rep. 434. Wicsner v. Zaun, 39 Win. 188. Shepherd v. Kahle, (Wis.), 97 X. W. Rep. 500. Mo- WilliamH v. Xisley, 2 S. JL R. (Pa.) 507; 7 Am. Dee. 654; Logan v. Xcill. 128 Pa. St. 457; 18 Atl. Rep. 343. Burtners v. Keran, 24 Grant (Va.), 42; Raines v. Walker, 77 Va. 92. Burkitt v. Twyman, (Tex. Civ. App.) 35 S. W. Rep. 421. The shallow device of taking the after-acquired title in the name of a stranger will not prevent the estate from po.-wiiig to the original grantee. Quivey v. Baker, 37 Cal. 470. Equity would compel *uch grantee to convey to the covenantee. Wheeler v. McHain, 43 I^a. Ann. 859; 9 So. Rep. 495. A son conveyed his undivided half interest in his deceased father's property, and afterward purchased his mother's life interest in the property. Held, that such life interest in the half previously conveyed vested in the Hon's grantee. Carnex v. Swift (Tex. Oiv. App.), 56 S. W. Rep. *. r >. Robinson v. Doutliit. 04 Tex. 101. The rule stated in the text was applied in a case in which the party estopped acknowledged, but did not sign, the dwd. Hiirsky v. Powy, (!>e|. Ch.l 9S Atl. 298. ESTOPPEL OF THE GRANTOR. 563 of the covenant. 3 The history of the doctrine of estoppel by deed as derived from common-law sources, is somewhat without the plan and scope of this work. The reader desirous of pursuing his in- vestigations in that direction is referred to the special treatises upon that subject. 4 It has been held that the covenantee cannot have the benefit of the subsequently acquired title unless he has been evicted from the premises. 5 The decision seems questionable. The authorities cited in support of the ruling are merely to the effect that the covenantee cannot recover on the warranty unless he has been actually or constructively evicted from the premises, and no ques- tion of the enurement of a subsequently acquired title to the benefit of the covenantee appears to have been involved. Recent Cases. Veve v. Sanchez, 226 U. S. 234; 33 S. Ct. 36; Roper Lumber Co. v. Hinton, 260 Fed. 996; Swift v. Doe, 162 Ala. 147; 50 So. 123; Cobb v. Naval Stores Co., (Ala.) 80 S. E. 415; Fox v. Lumber Co., 85 Ark. 497; 108 S. W. 1137; Colonial etc., Mtge. Co. v. Lee, 95 Ark. 253; 129 S. W. 84; Moral'is v. Matheson, 75 Fla. 589 ; 79 So. 201 ; Cowart v. Singletary, 140 Ga. 435; 79 S. E. 196; Ann. Cas. 1915 A, 1116; 47 L. R. A. (N. S.) 621; Oliver v. Holt, 141 Ga. 126; 80 S. E. 630; McAdams v. Bailey, 169 Ind. 518; 82 N. E. 1057; 13 L. R. A. (X. S.) 1003; 124 Am. St. Rep. 240; Whitley v. Johnson, 135 Iowa 620; 113 N". W. 550; Stephens v. Boyd, 157 Iowa 570; 138 N. W. 389; Irish v. Steeves, 154 Iowa 286; 134 N". W. 634; Hintz v. Hintz, 176 Iowa 392; 157 K W. 878; Creekmore v. Bryant, 153 Ky. 166; 164 S. W. 337; Hays v. Lackey, 185 Ky. 17; 213 S. W. 205; Wells v." Black- man, 121 La. 394; 46 So. 437; Wade v. Barlow, 99 Miss. 33; 54 So. 662; Miss. Saw-Mill Co. v. Douglas, 107 Miss. 678; 65 So. 885; Harris v. Byers, 112 Mies. 651; 73 So. 614; Patton v. Forgey, 171 Mo. App.. 1; 153 S. W. 575; Collins v. Buffalo etc. Ry Co., 129 N. Y. Supp. 139; 145 App. Div. 148; Cooley v. Lee, 170 N. C. 18; 86 S. E. 720; Ford v. McBrayer, 171 N. C. 420; 88 S. E. 736; James v. Hooker, 172 N". C. 780; 90 S. E. 925; Richardson v. Lumber Corp'n., 93 S. C. 254; 75 S. E. 371; L. R. Ann., 1918 C, 788; Britton v. Hemingway, 104 S. C. 209; 88 S. E. 462; Bird v. Cross, 123 Tenn. 519; 131 S. W. 974; Ferguson v. Prince, 130 Tenn. 543; 190 S. W. 548; Vann V. Denson, 56 Tex. Civ. App. 220. 120 S. W. 1020 ; Tennison v. Palmer, (Tex. Civ. App.) 142 S. W. 949; Morris v. Short, (Tex. Civ. App.) 151 S. W. 633'; Hurley v. Charles, 112 Va. 706; 72 S. E. 689; Blake v. O'Neal, 63 W. Va. 483; 61 S. E. 410; 16 L. R. A. (N. S.) 1147; Irvin v. Stover, 67 W. Va. 356; 67 S. E. 1119; Arnold v. Nichols, 25 Wyo. 45S; 172 Pac. 335. 3 Cases cited in last note. See, also, post, 217. 'Bigelow on Estoppel, p. 329; Rawle Covts. for Title (5th ed.), ch. 11, p. 351. Donohue v. Vosper, 189 Mich. 78; 155 N. W. 407; citing Matteson v. Vaughn, 38 Mich. 373, and Rawle Covt's for Title, 131, 140. .")64 MAKKKTABLE TITLE TO REAL ESTATE. The estoppel operates to deprive the covenantor of the after- acquired estate as well where he had a present right or interest which passed at the time of the grant as where nothing whatever passed.' The rule is otherwise in case of a lease ; if the lessor h;;s, at the time of making the lease, any interest in the demised prem- ises, that interest only will pass, and the lease will have no effect by wav of estoppel as to any after-acquired interest. 7 There is no warranty in execution sales; consequently, neither the judgment creditor nor the judgment debtor is estopped to set up an after-acquired title against a purchaser at a sale under exe- cution on the judgment to which they were parties. 8 If the covenantor discharge an incumbrance on the land, pay- ment of which had been assumed by the grantee, he will not be estopped by his warranty from enforcing such incumbrance by way of subrogation to the rights of the incumbraneer. 9 But if he acquires an incumbrance existing upon the land at the time of the conveyance, the payment of which was not assumed by the grantee, he will be estopped to enforce such incumbrance, even though he conveyed without warranty. 10 The general rule is that the grantor in a warranty deed cannot, as against the grantor, acquire title to the land under foreclosure of a mortgage which was a lien on the land at the date of the deed. 11 If the covenantor disseise the covenantee and hold the estate until the right of the disseisee to recover the possession is barred by the Statute of Limitations, the title so perfected cannot enure Howe v. MrCormick, 57 X. Y. 319. '4 Kent Com. 98. House v. McCorraick, 57 X. Y. 319. Walton v. Water- house. 2 Saund. 415. Pont, I 218. Bigclow Estoppel (3d U , 333. Henderson v. Overtoil, 2 Yerg. (Ti-nn.) 304; 24 Am. Dec. 492. Enuneraon v. Sansome, 41 Cal. 552. Frey v. Haw-ion, 06 X. C. 466. Dougald v. Dougherty, 11 Ga. 578. Brown v. Staple*, 21 Me. 497; 48 Am. Dec. 504. Holies v. Beach, 2 Zah. (X. J.) 60; 53 Am. Deo. 263. Flanary v. Kane. 102 Ya. 547: 4(1 S. E. Rep. 6S1. A tenant in common of separate tract* of land, who ronveyg his undivided share to hi- co-tenant with warranty, i* estopped to set up againat his grantee title to the land acquired l>y him under a *uhiMH|iuiit foreclosure sale. Garner v. Garner, 117 Mi-. 094; 78 So. 623. "George v. Brandon, 214 Pa. 623; 64 All. 371; Waslee v. Rodman, 231 P. 219; 80 All. 43. ESTOPPEL OF THE GHANTOR. 565 to the benefit of the covenantee. 12 It has been held that this rule does not apply where the covenantor, instead of disseising the cove- nantee, merely remains in possession, without color of title, for the statutory period. 13 In a case in which the grantor conveyed vacant and uninclosed lands, and afterwards entered upon and inclosed them and erected buildings upon them, claiming them as his own for the statutory period, it was held that his possession could not be held permissive or subordinate to that of his grantee, and that he was not estopped from setting up the title thus acquired under the Statute of Limi- tations against his grantee. 14 The estoppel binds not only the grantor but his heir 15 or devisee and his assigns. 16 The heir or devisee, it seems, is bound only to the extent of assets received from the grantor. 17 Such assets, it is apprehended, will include personal estate, in those States in "Franklin v. Dor land, 28 Cal. 175; 87 Am. Dec. 111. Tilt on v. Emery, 17 N". H. 536, the court saying that the covenantor may disseise his covenantee with the same effect as any other. Kent v. Harcourt, 33 Barb. (N. Y.) 491. Cf. Wicklow v. Lane, 37 Barb. (N. Y.) 244. Stearns v. Hendersass, 9 Gush. (Mass.) 497; 57 Am. Dee. 6-5. Smith v, Montes, 11 'Tex. 24; Harn v. Smith, 79 Tex. 310. Hines v. Robinson, 57 Me. 330; 99 Am. Dec. 772. Eddleman v. Carpenter, 7 Jones L. (N. C.) 616. Dillard v. Cochimni, (Tex. Civ. App.) 153 S. W. 662. "Johnson v. Farlow, 13 Tred. L. (N. C.) 85. Chatham v. Lonsford, 149 N. C. 363; 63 S. E. 81; 25 L. R. A. (N. S.) 129. But see Sherman v. Kane, 46 1*4. Y. Super. Ct. 310, where it was held the rule applied as -weM where possession had not been given as where it -had been given and had been followed -by an actual disseisin. In Reynolds v. Cathens, 5 Jones L. (1ST. C.) 438, it was held- that a grantee of*a covenantee, who had not given possession, would be in under color of title, and that the title, when perfected by the Statute of Limitations, would not enure to the covenantee. "Horbach v. Boyd, 64 Neb. 129; 89 N. W. Rep. 644. 15 Du Bose v. Kell, 90 S. C. 196; 71 S. E. 371; Buford v. Adair, 43 W. Va. 211; 27 S. E. 260; 64 Am. St. Rep. 854. The heir is not estopped by his ancesk>r's deed' if the estate -comes, to him otherwise than through the ancestor. Golladay v. Knock, 235 111. 412; 85 N. 'E. 649; 12,6 Am. St. Rep. 224. See, also, 209. A husband joining with his wife in a deed of her property with warranty, void for want of proper execution by the wife, is estopped to claim title to the property as her heir. Custer v. Hall, 71 W. Va. 119; 76 S. E. 183. See, also, post, 218. 16 Tolliver v. Railway Company, 187 Fed. 795; 109 C. C. A. 643. "2 Tucker Bl. Com. 303, n. 8. Chauvin v. Wagner, IS Mo. 531, 553. Nun- ally v. White, 3 Met. (Ky.) 592. In Logan v. Moore, 1 Dana (Ky.), 57, it was held that the heir was barred to the extent of the value of the land 566 MARKETABLE TITLE TO KEAL ESTATE. which the entire estate of a decedent, real as well as personal, is made assets for the payment of his debts. The estoppel does not bind those who are not in privity, in blood or estate, with the grantor. 18 Lineal and collateral warranties having been very generally abolished by statute in the American States, a deed with full cove- nants of warranty will not estop the 1 heirs of the grantor, even to the extent of assets descended, from asserting against the grantee a title derived by them through some source jother than him, the grantor; 19 though, of course, if they had received assets from the grantor, by descent, they will be liable to that extent for the breach of his covenant. It has been held that a grantor with -warranty will be estopped from setting up a resulting trust in the premises for his own benefit. Thus, he cannot show that after the deed was delivered it was agreed that the grantee should hold the property merely as trustee for sale and payment of the grantor's debts. lie cannot by parol do away with his covenant of warranty. 20 Conversely, a grantor by warranty deed of land irnpn-M d with a resulting tru-t in the grantee's hands, is not estopped by his warranty from- ac- quiring the interests of the cestui que truxl.- 1 Xo estoppel arises where the grantor's cnvenants have liern- ex- tinguished; as where he conveyed the land to one through whom by nie^iie conveyances he acquire the title." Thus, if A. oonvey B. with warranty, and B. convoy to tin- extent of the value at the date of the warranty of the land claimed. The heir had brought ejectment for the land, setting up an after-acquired title. "Newton v. Kastorwood. CIVx. Civ. App.) lf>4 S. W. 646. **Rii8 v. Alpaujfh, 118 Mass. 3(19; 19 Am. Rep. 464. Foote v. Clark. 102 M... 394; 10 S. W. Rep. 981: Whit son v. Grosvcnor, 170 111. 271; 48 X. K. Rep. Kilfi. Rathhun v. Rathbun, 6 Barb. (N. Y.) 107. "Condit v. Biffalow, 64 X. .1. Eq. 504; 54 Atl. 160. "Goodel v. K.-Mintt, -J2 Wi<. f,r,:,. 1,, Smili-\ v. Fries. 104 111. llti. wlu-iv A., owning th rot- fourth* f an estate, convex ed the whole with warranty to B.. who owned the other fourth, and who. at the sjune time, with like war- ranty, conveyed that fourth < A., it \va.- held that tin- warranty of th. fourth from A. to B. wan i-xt in-uMu-il 1>\ IJ.'s n>. ..nvevance to A., so that A.'H fter-a- ijuin-.I title im,l] i, ; mure to the benefit of B. ESTOPPEL OF THE GRANTOR. 567 A., the original grantor, A.'s covenants to B. are extinguished, and the title acquired by him from C. cannot enure to the benefit of B. If this were not so, no man could safely purchase property which he had once conveyed away with warranty. In order that a cove- nant of warranty shall estop the grantor from setting up an after- acquired estate, it must appear that the title to such estate is ad- verse and not subordinate to the title conveyed by the grantor. 23 To this principle is to be referred the decision that the title acquired by the grantor as purchaser at a sale under a mortgage or trust deed to secure the payment of money, does not enure to the benefit of the grantee. 24 A covenant of general warranty in a deed will not estop the grantor from claiming a breach of explicit conditions in the granting part of the deed restricting the future use of the property. 20 Neither the grantor nor his heirs or his representatives will be estopped to show that the deed was obtained through fraud of the vendee, even as against a subsequent purchaser without notice, and though the purchase money was received after notice of the fraud. 26 A fraudulent purchaser gets no title to the land, though the vendor gains a good title to the purchase money. The policy of the law is to punish a fraudulent purchaser. 27 ,No lapse of time nor any act of confirmation by the party defrauded, even with a full knowledge of the facts can restore and make vital a contract dead on account of fraud. A new contract for additional consideration may be made, but the old is forever gone; once a cheat, the thing so remains. 28 23 Thielen v. Richardson, 35 Minn. 500, 29 N. W. Rep. 677. In this case it appeared that in 1851 C. executed to R. a warranty deed to certain lots. In 1857 B. owned these lots, but how, when, or from whom he got title did not appear, nor whether his title was adverse or subordinate to that of C. In 1857 B. conveyed to C. On these facts it was held that C. was not estopped by his warranty to assert against R. the title so acquired from B. --Goode v. Bryant, 118 Va. 314. 87 S. E. 588. 25 Linton v. Allen, 154 Mass. 432, 28 N\ E. Rep. 780. = 6 Jackson v. Summerville, 13 Pa. St. 359. "Id. Gilbert v. Hoffman, 2 Watts (Pa.), 66, 26 Am. Dec. 103; Small v. Jones, 1 W. & S. (Pa.) 138. 28 Language of COULTER, J., in Jackson v. Summerville, supra, Duncan v. McCullough, 4 S. & R. (Pa.) 485; Chamberlain v. McClurg, 8 W. & S. (Pa.) 36. Co. Litt. 214b. 568 MARKETABLE TITLE TO REAL ESTATE. If land be conveyed by warranty deed subject to a mortgage, or the grantee assumes and agrees to pay the mortgage as a part of the purchase price, the grantor may purchase and enforce the mortgage against the laud; he is not estopped by his warranty to set up the title so acquired. 29 But if the only reference in the deed to the mortgage is to except it from the covenant against incumbrances, it has been held that such exception does not extend to or modify the covenant of warranty, and that any title acquired by the grantor on foreclosure of the mortgage would enure to the benetit of the grantee. 30 The covenantor is estopped to set up the after-acquired estate as well against a remote grantee as against his own grantor in every case in which the remote grantee is entitled to the benetit of the covenants of the original grantor. 31 The fact that one of the in- tervening deeds in such case was a quit claim conveying on-ly the grantor's right, title and interest in the land, will not prevent the passage of the after-acquired estate of the original grantor and covenantor to the remote grantee. 32 A covenant of warranty in a deed cannot operate by way of estoppel to confer upon the grantee greater title than the deed itself would have conferred, if effective. 23 Thus, in a ease in which joint owners executed a deed with warranty making parti- tion of the land between themselves, and it afterwards developed that one of the grantors had no valid interest in the land, it was held that neither the other grantor, nor his heirs, were estopped b his warrant to assert title to the whole of the land. 34 ~Merritt v. lUrr*. 4fi Minn. 74. 4S X. W. Rep. 417: Wither v. 00 Minn. 98, 71 X. XV. R-p. OO9: Rrmvn v. Staple*. 28 Me. 497, 48 Am. Dec. . r >04; Crtwby v. Evans. (Mo. App.) 105 S. XV. 514. "Sandwich Mfp. Co. v. Zollncr. 4S Minn. 508. 50 X. W. Rep. 370: Rooney v. Koenijr. 80 Minn. 483. 83 X. XV. Rep. 309. MohnHon v. John-urn, 170 Mo. 34. 70 R. XV. Rpp. 241. 59 L. R. A. 74S. M .Tohn*on v. Johnson. 17ft Mo. 34. 70 S. XV. Rep. 241, 59 L. R, A. 748: Knrada-Hhio R. K. Co. v. Kelchor. (Mo.) 214 S. W. 9151. "PHtohard v. Fox. (1V\. Civ. App.) 154 S. XX r . 1058: Xewton v. Kter- \vood, (Tex. Civ. App.) 154 S. XX'. OM. The grantor U not eatopped to wt up an iifter-noqtrtn-d title to tin- timber on the land, if the grantee knew. at the time of the deed, that the grantor did not own the timber. Cillm v. Powe. 2 10 Fed. 553. 135 C. ('. A. 321. "Dim* v. .\Rne\\. 07 Tev. 200, 2 S. XV. Rep. 43, 37fl; Chnce v. Crep. SS Tex. 552. .T2 S. XX*. Hi-p. 520. ESTOPPEL OP THE GRANTOR. 569 If the covenantor reacquire the property in consequence of de- fault of the covenantee in the payment of a purchase-money mort- gage, he will not be estopped, to set up a title thereafter acquired by him under foreclosure of a mortgage on the land existing at the time of the covenant. 35 A provision in a statute that an after-acquired title of the grantor shall enure to the .benefit of the grantee, refers to acquisi- tion by descent as well as by other methods. 36 The estoppel of the grantor to set up the after-acquired title enures only to the -benefit of the grantee and of those in privity with him ; the principle cannot be invoked in favor of one who was not a party, nor privy, to the deed. 37 The fact that the conveyance and covenant were not made upon a valuable consideration does not affect the operation of the rule that the covenantor is estopped to set up the after-acquired title. 38 If the estate be acquired through a conveyance under which the grantee is merely momentarily seized for the purposes of a trans- fer, the title so acquired does not enure to the benefit of one to whom such grantee had previously conveyed the premises. 39 209. AFTER-ACQUIRED ESTATE MUST BE HELD IN SAME RIGHT. The after-acquired estate must be held by the grantor in the same right as that in which the conveyance was made. Thus if he convey in his individual capacity, and reacquire the estate in a fiduciary capacity, 40 e. g., as trustee express or implied, 41 the 85 Crosby v. Evans, (Mo. App.) 195 S. W. 514. ^Leflore County v. Allen, 80 Miss. 298, 31 So. Rep. 815. 87 Jordan v. Chambers, 226 Pa. 573, 75 Atl. 956. The secretary and general manager of a corporation, who induced a purchaser to buy land as 'belonging to the corporation and who executed a deed to the purchaser on behalf of the corporation, was held estopped to set up, in himself, an after-acquired title to the land. Mountain Home L. Co. v. Swartwout, 30 Idaho 559, 166 Pae. 271. 33 Robinson v. Douthit, 64 Tex. 101; Morris v. Short, (Tex. Civ. App.) 151 S. W. 633. 39 Haslam v. Jordan, 106 Me. 49, 70 Atl. 1066. 40 Jackson v. Hoffman, 9 Cow. (X. Y.) 271; Sinclair v. Jackson, 8 Cow. ,(N. Y.) 587, semble. 41 Kelly v. Jenness, 50 Me. 455; Gregory v. Peoples, 80 Va. 355. See, also, Cleveland v. Smith (Tex. Civ. App.) 113 S. W. 547; Newton v. Easterwood (Tex. Civ. App.) 154 S. W. 646. 72 570 MARKETABLE TITLE TO REAL ESTATE. after-acquired title will not enure to the benefit of the covenantor. Accordingly, where a person took a conveyance in his own name, the consideration for which was advanced by another, and then conveyed to that other, it was held that he was not estopped from afterwards acquiring the title and setting it up against the grantee. 42 So, where several coparceners exchanged deeds in partition, and one of them afterwards died, it was held that the survivors were not estopped to claim an interest as heirs in the share conveyed to the decedent." So, also, where a corporation, by its president, conveyed its property with warranty, and the president after- wards acquired title to the property under a foreclosure sale by a third party. 44 210. MUTUAL ESTOPPELS. If, for any reason, the cove- nantee is estopped to pursue his remedy against the covenantor, in other words, if there are mutual estoppels, the after-acquired title will not pass. The estoppel is thereby, in the language of the ancient common-law authorities, "set at large."' The simplest illustration of this principle is furnished by an exchange of lands in which the parties stipulate that in case either is evicted he may re-enter upon the land of the other. In such a case, the evicted party is not estopped by his warranty, to recover his original land from the other. 4 * 211. ESTOPPEL OF MORTGAGOR. A mortgage containing covenants of warranty is as effectual to pass an after-acquired Jackson v. Mill-. 13 Johns. (N. Y.) 463. The name rule applies to the converse of this state of facts, as where a person without title conveys, anil afterwards acquires the title as trustee. Burchard v. Hubbard, 11 Ohio, 310. Carson v. Carson, 122 N. C. 645, 30 S. E. Rep. 4. "Venneule v. Hover, 113 Me. 74, 93 Atl. 37. Com. Dig. Estoppel E.; Co. Litt. 352!b; Rawle Covt. $ 252; Kiml>all v. SchofT, 40 N. H. 100; Carpenter v. Thompson, 3 N. H. 204, 14 Am. Dec. 348; III. Land Co. v. Bonner, 91 111. 114, lift, a case in which tenants in common made partition by conveying each to the other with covenants of warrant v. Brown v. Staple*. 28 Me. 503, 58 Am. Dec. 504, where the covenanters had bjr an instrument of as high a nature a* the covenant, undertaken to remove an incumhrance on the premises, the existence of which was rnmplained of an a breach of covenant. Grime* v. Redmon. 14 B. Mon. (Ky.) 234 (2d ed.) 189; Pugh v. Mayo, 60 Tex. 191. ESTOPPEL OF THE GRANTOR. 571 title as a conveyance in fee. 47 And a mortgage without warranty has been held sufficient for that purpose; 48 but there is a conflict of authority upon this point. 49 A covenant of warranty contained in a purchase-money mortgage will not estop the mortgagor to set up a subsequently acquired title against the mortgagee, 30 nor to 47 Jones on Mortgages, 561, 682, 825. Judge HARE'S note to Duchess of Kingston's Case, 2 Sm. Lead. Gas. (8th Am. ed.) S38; Edwards v. Davenport, 4 McCr. (U. S.) 36; Rice v. Kelso, 57 Iowa> 115, 10 N. W. Rep. 235; Clark V. Baker, 14 Cal. 612, 76 Am. Dec. 449; Chamberlain v. Meeder, 16 N. H. 381; Cross V. Robinson, 21 Conn. 387; Plowman v. Sh idler, 36 Ind. 484; Boone v. Armstrong, 87 Indi 169; Randall v. Lower, 98 Ind. 256; People's Sav. Bank v. Lewis (Wash.), 79 Pac. 932; Logue v. Atkinson (Tex. Civ. App.), 80 S. W. Rep. 137; West Miich. Park Asso. v. Ry. Co., 172 Mich. 179, 137 N. W. 799; Broadway v. Sid way, 84 Ark. 527, 107 S. W. 163; Steverson v. Agee Co., 9 Ala. App. 380, 63 So. 794; Hill v. O'Brien, 104 Ga. 137, 30 S. E. 996; Gallagher v. Stern, 250 Pa. 292, 95 Atl. 518. The estoppel operates not only against the mortgagor, but against one who, with knowledge of the facts, takes from the mortgagor a warranty deed, free from incumbrances on the property. Northrup v. Ackerman, 84 N. J. Eq. 117, 92 Atl. 909. Where a mortgage conveyed an " undivided one-eighth interest " in land, and the mortgagor subsequently acquired, under a will, another one-eighth interest in the land, the additional one-eighth interest did not enure to the benefit of the mortgagee. Newell v. Banking Co. (Ky.) 118 S. W. 267. 48 Stewart v. Anderson, 10 Ala. 504 ; American Sav. Bank v. Helgesen, 64 Wash. 54, 116 Pac, 837, Ann. Cas. 1913 A. 390. 40 Donovan v. Twist, S3 N. Y. Supp. 76, 85 Aipp. Div. 130; Jackson v. Littell, 56 N". Y. 108. 50 Bigelow Estoppel (4th ed.), 403; Rawle Covt. 267; Co. Litt. 390; Haynes v. Stevens, 11 X. H. 32; Randall v. Lower, 98 Ind. 256; Ingalls v. Cook, 21 Iowa 560; Bro\vn v. Staples, 28 Me. 497, 58 Am. Dec. 504; Hardy T. Nelson, 27 Me. 528; Smith v. Cannell, 32 Me. 125; Geyer v. Girard, 22 Mo. 160; Connor v. Eddy, 25 Mo. 72; Kellogg v. Wood, 4 Paige (N. Y.), 77; Lot V. Thomas, Penn. (X. J.) 300, 2 Am, Dec. 354; Sumner v. Barnard, 12 Met. (Mass.) 461; Hancock v\. Carlton, 6 Gray (Mass.), 61; Pike v. Goodnow, 12 Allen (Mass.) 474. A contrary decision appears to have been made in Hitchcock v. Fortier, 65 111. 239. Here the land was conveyed with- out warranty, and immediately reconveyed in mortgage, with warranty, to secure the purchase money. This was undoubtedly a case of great hardship. The original grantor had no title, yet as mortgagee he reaped the full benefit of a title afterwards acquired by the mortgagor. Such a decision could not have been rendered if the original grantor had conveyed with warranty. It may be doubted whether the fact that the grantor took a mortgage on the premises to secure the purchase money did not show an intent to convey an estate of a particular description, and not merely such interest as the grantor might have. This case has been severely criticised. Rawle Covt. (5th ed.) p. 425; Bigelow Estoppel (4th ed.), 404. One who gives a purchase-money 572 MARKETABLE TITLE TO REAL ESTATE. recover on the covenants in the original conveyance by the mort- gagee/ 1 the deed and purchase-money mortgage being regarded as parts of one and the same transaction. *' Equity does not require that a grantee should mortgage back a greater estate than that which his grantor professed to vest in him; nor can it be implied that a grantee, in mortgaging back the land for the pur- chase money, intended to grant an estate which the deed assumed to grant, but which it did not vest in him. 52 If the owner of land execute a second mortgage on it with cove- nants of warranty and against incumbrances, and afterwards pay oif the first mortgage, the payment enures to the benefit of the second mortgagee, and the grantor is estopped from claiming to be subrogated to the benefit of the first mortgage. 53 A mortgage on government lands given by the entryman is valid, and the title subsequently perfected by issue of the patent enures to the benefit of the mortgagee. 54 212. EFFECT OF VOID CONVEYANCE AS AN ESTOPPEL. The rule that an after-acquired title passes to the grantee by virtue of the grantor's covenant of warranty has been held not to apply where the conveyance is prohibited by law, e. g., a conveyance of premises in the possession of an adverse claimant. 34 * In t! States, however, in which a champertous deed is held to be valid as between the parties though void as to strangers, it is apjtr-- hended that the after-acquired title would pass to the grant mortgage that includes other lands not granted him by the mortgagee, will not be estopped M against the mortgagee to set up an after-acquired title to thofte lands. Brown v. Phillips, 40 Mich. 264. "Rwwer v. Carney (Minn.), 54 N. W. Rep. 89. Randall v. Lower, 98 I ml. 256. "Butler v. Reward, 10 Allen (Mass.), 4(56; Corns tock v. Smith, 13 Pick. (Ham.) 119, 23 Am. Dec. 070; Trull v. EaMman, 3 M.-t. (Maw.) 124, 37 Am. Dec. !:>; Hooper v. Henry, 31 Minn. -ji.i. 17 X. \V. Ilop. 476. M Adam v. M. < lintook, 21 N. D. 483, 131 N. W. 304. ** Kennedy T. McCartney, 4 Port. (Ala.) HI, 158. (he court savin? the covenantor in not extopped where ho is inhibited from selling by th Ictt.-r. npirit or policy of a legislative act. Kercheval v. Triplet t. 1 A. K. M tr>!i. (Ky.) 403; Altemun v. Nichols, 24 Ky. Law R, 2401, 74 S. \\ . Ki-p. il. * Farnum v. Peterson, 111 Mans. 148, the court say in i r : "\Vhcn it i- thnt the dned of one who is dJMdstd is void, it is intended only that , inoperative to convey legal title and seisin, or a right of entry upon which th 'i may maintain an action in his own name again -t one \\li<> has actual ESTOPPEL OF THE GRANTOR. 573 Upon the same principle it has been held that no estoppel arises out of a fraudulent conveyance with covenant of warranty; the subsequently-acquired title cannot be thus made to enure to the benefit of the fraudulent grantee, and the grantor be permitted to accomplish by indirection what the law forbids to be directly done. 56 But where the rights of creditors are not concerned, the fact that a deed is fraudulent, and the fraud known to both parties, will not prevent an after-acquired title from enuring to the grantee. In such a case the law will not assist the grantor to avoid a consequence of his own fraud. 57 It has been held that a conveyance of the homestead by the husband, with warranty, where void under the laws of the State because not executed by the wife also, does not estop the grantor from setting up title in himself after the death of the wife. 58 If a deed, by reason of imperfect execution, be insufficient to pass the estate, and the grantor having no title, afterwards acquire title, it will not enure to the benefit of the grantee. 59 If this were not so, land might be made to pass, otherwise than by deed, will or descent. It would be absurd to hold that an instrument, which the law declares to be wholly invalid, should, nevertheless, by reason of the covenants of the grantor, operate effectually as a seisin. It is not void as a contract between the parties to it. The grantee may avail himself of it against the grantor by way of estoppel, or by suit upon the covenants ; or he may recover the land by an .action in the name of the grantor. Although he has no right of entry, yet if by lawful means he comes into possession, he may then avail himself of the title of his disseised grantor, and, by uniting that to his own present possession, defeat recovery by the intennediate disseisor. Wade v. Lindsay, 6 Met. (Mass.) 407, 413; Cleveland v. Flagg, 4 Cush. (Mass.) 76. And his title will also be made good against any one attempting to set up a deed from his grantor subseqmnt to his own. White v. Patten, 24 Pick. (Mass.) 324." 59 Stokes v. Jones, 18 Ala. 734; S. C., 21 Ala. 738, the court saying, in the latter case, that the grantor cannot avoid the claims of creditors or bona fide purchasers, by conveying with warranty to defraud them, and afterwards ac- quiring the title. Gilliland v. Fenn, 90 Ala. 230, 8 So. 15, 9 L. LI. A. 413: Donehoo v. King, (W. Va.) 98 S. E. 520; Troxell v. Stevens, 57 Xeb. 329, 77 N. W. 781i "Barton v. Morris, 15 Ohio, 408; Smith v. Ingram, 132 N. C. 959, 44= S. E. Rep. 643, 61 L. R. A. 878. "Bolen v. Lilly, 85 Miss. 344, 37 So. Rep. 811. "Wallace v. Miner, 6 Ohio, 367, 371. 574 MARKETABLE TITLE TO REAL ESTATE. grant and transfer of the estate. 60 Accordingly a deed insufficient for want of attestation as required by law, was held not to estop the grantor, even though it contained a general warranty. 61 Nor is a married woman estopped by a deed which, by statute, she was incompetent to execute. 63 A distinction appears to have been made between deeds, void for want of due execution, and such as are insufficient for want of proper words of conveyance, as respects their operation by way of estoppel. Thus it has been held that an instrument, void as a deed for want of words of grant, but containing a general warranty, was sufficient to estop the grantor from setting up an after-acquired title to the land; 63 and that a deed inoperative to convey a fee by way of grant, for want of words of inheritance, will, if it contain a general warranty, have that effect by way of estoppel. 64 A conveyance of a part of the public lands by one who has made an entry thereon, but whose title has not been perfected by fulfillment of all the requirements of the land laws, is void as between the grantor and the United States, but has been held valid as between the grantor and grantee; so that upon the issuing of a patent after final proof by the entryman, the title so acquired enures immediately to the benefit of the grantee. 65 The validity of the deed and its effect by way of estoppel, are to be determined by the law of the place where the land is located, and not by the law of the place where the deed was made. 66 Connor v. McNhirray. 2 Allen (Maw. i, 204. "Patterson v. Pease, 5 Ohio, 101. "Kemery v. Taylor, 176 Ind. 6f0, Ofi X. E. 050. Brown v. Mantcr, 1 Fcwt. (X. H.) 528, 53 Am. Dec. 223. *Terrett v. Taylor, 9 Cranch (U. S.), 53; Somes v. Skinner, 3 Pick. (Mnn.) 60. "Anderson v. Wilder, 3 Miss. 606, 35 So. Rep. 875; Gouph v. Cutter, 57 WmOi. 276. 100 Pac. 774; Orpan v. Runnell, (Mo.) 184 S. W. 102; Case v. Stipe*. (Mo,) 217 S. W. 30fl: Ke-tchiim Coal Co. v. Coal Co., 50 Utah 305, 168 Pac. 86; Ki'Miutn v. Coal Co., 257 Fed. 274, 168 C. C. A. 358. Where the grantee of an entryman assumed his obligation to the State for the piirrhuHe-nmney and made default therein, and the land 1 was rcttold by the State and re-pun linncd liy iho entryman, the latter wa not entopped from fM'ttintf up the title > acquired aptinttt hi* grantee. Houston Oil Co. v. Lumber Co.. (Tex. Civ. App.i HI S. W. 745. "Smith v. Infrram, 132 X. C. 050, 44 S. E. Rep. 043, 61 L. R. A. 878. ESTOPPEL OF THE GRANTOR. 575 213. EFFECT OF ESTOPPEL AS AN ACTUAL TRANSFER OF THE AFTER- ACQUIRED ESTATE. It seems to be established in America that the effect of an estoppel arising from the covenants or recitals by the grantor in his deed, is to actually transfer the after-acquired estate to the grantee, so as to obviate the necessity of a second conveyance of the premises, 67 or of resort to the courts to compel the transfer. 68 The learned commentators upon this w This, while deprecated, is admitted by Mr. Rawle to be the rule in most of the States. Covts. for Title (5th ed.), 248. The actual transfer of the after-acquired estate to the grantor by force of the estoppel is recognized in the following cases, though it was unnecessary in few, if any of them, to decide anything more than that the grantor could not set up the after- acquired title as against the grantee: Hoyt v. Dimon, 5 Day (Conn.), 479; Dudley v. Cadwell, 119 Conn. 226; Rigg v. Cook, 4 Gil. (111.) 336, 46 Am. Dec. 462; Bank v. Mersereau, 6 Barb. Ch. (1ST. Y.) 528; Middlebury College v. Cheney, 1 Vt. 349; Moore v. Rake, 2 Dutch. (N. J.) 574; Vreeland v. Blau- velt, 23 N. J. Eq. 483; Bell v. Adams, 81 N. C. 118; Olds v. Richmond Cedar Works, 173 N. C. 161, 9-1 S. E. 846; Gallagher v. Stern, 250 Pa. 292, 95 Atl. 518; Douglas v. Scott, 5 Ohio, 199; Bailey v. Hoppin, 12 R. I. 560; Barr v. Gratz, 4 Wh. (U. S.) 222; Harmer v, Morris, 1 McL. (U. S.) 44. In Kinsman v. Loomis, 11 Ohio, 479, it was said that the grantee might not only avail himself of the estoppel defensively, but that it would sustain ejectment by him, citing Hill Abr. 401. In Brown v. Manter, 1 Fost. (N. H, ) 528, 53 Am. Deo. 223, it was held that the operation of an estoppel was to prevent circuity of action and not to transfer the estate. In Burtners v. Keran, 24 Grat. (Va.) 42, it was held that a deed of bargain and sale with warranty, while it estopped the grantor from setting up title to the after- acquired estate, did not operate as an actual transfer of that estate. Such an effect could be given only to a fine, feoffment, common recovery, or other conveyance of like dignity, at common law. Inasmuch as a deed of bargain and sale has, in America, completely superseded these ancient common-law modes of conveyance, and accomplishes all of their purposes, it is difficult to perceive why it should not be given the same effect by way of estoppel. Mr. Rawle cites a large number of American cases to the proposition that the effect of a conveyance with covenants of warranty is to actually transfer to the covenantee any title which the covenantor may afterwards acquire. Examination of these cases will show, as observed by Mr. Bigelow (Estoppel [4th ed.], 420), that in few, if any of them, was it necessary to decide that the estate was actually transferred by the estoppel, there being no question raised as to the rights of a purchaser of the after-acquired title, nor as to the right of the covenantee to compel the covenantor to accept such title in Tieu of damages for a breach of covenant. Those cases may be seen on pp. 367, 380, Rawle Covt. (5th ed.). Most of them are mere reiterations of the well-established rule that the grantor cannot set up the after-acquired title against his grantee. ^Donohue v. Vosper, 189 Mich. 78, 155 N, W. 407. 576 MARKETABLE TITLE TO REAL ESTATE. somewhat abstnise branch of the law of real property have devoted much space to the consideration of the question whether the effect of the estoppel is to actually transfer the estate, or merely to rebut any claim, which the grantor might make, to the estate by virtue of the after-acquired title. Inasmuch as the grantee would, in either case, be in the actual possession and enjoyment of the estate, the question would seem to have little or no practical value, but for the bearing which it has upon two other questions, namely: (1) Whether one who purchases the after-acquired ritle from the grantor, without notice of the rights of the prior purchaser, who bought when the grantor had no title, will be preferred to such purchaser. (2) Whether the covenantee can be compelled to accept the after-acquired title in lieu of damages for the breach of the covenant; in other words, whether, after the contract has been executed by a conveyance with covenants of warranty, the grantor will be permitted to perfect the title by getting in the rights of an adverse claimant, so that the same may enure to the benefit of his grantee, and prevent an action, at law for the breach of his covenant. With respect to the first question, the doctrine of an actual transfer of the after-acquired title has been considered to furnish some ground for those cases which hold that a purchaser of that title, without notice, takes subject to the rights of the original purchaser, the covenantee ; and as to the second question, that the effect of that doctrine is to deprive the covenantee of his election to recover damages for a breach of the covenant, or to take the after-acquired title. It remains now briefly to consider both of these questions. 214. BIGHTS OF PURCHASER OP AFTER- ACQUIRED TITLE. It seems to be a generally accepted rule throughout the United States that a purchaser in searching the records for any prior conveyance which the vendor may have made, need not extend his March back beyond the time at which the instrument evidencing the vendor's title* was admitted to record. If the rule wereother- 2 Pom. Eq. Jur. (13th ed.) 5 761, and rimes there cited. Rubric Covt. (5th ed. i | 250, where the author HHJTH that a purchaser who aearrhe* the reprint ry for prcvtnu* dwd made l>v 1m grantor, is not obliped to gn beyond what it called " the line of tHle," and thai it would be affectation to cite authority for cm-h familiar knowledge. ESTOPPEL, OF THE GRANTOR. 577 wise the labors of the purchaser would be multiplied indefinitely, for not only would he be compelled to cover in his search a period of time in which the grantor might have conveyed the premises when he was without title, but a similar search would be necessary at each successive step backward in the chain of title. In a few of the States, however, it has been held that not only is the grantor estopped from denying that he had title at the time of his con- veyance as against his grantee, but that the estoppel extends to a purchaser of the after-acquired title from the grantor, even though he had no notice of the prior conveyance, and prevents him from setting up such title against the original grantee ; and this upon the ground that the effect of the estoppel is to actually transfer to the grantee the after-acquired title and to override any subsequent alienation of the premises by the grantor. 70 But this extension of the doctrine of estoppel has been denied by the courts of other States, and vigorously combated by able and discriminating text- writers. 71 They argue that the original purchaser having bought without examining the title, or with knowledge that the title was 70 3 Washb. Real Prop. (4th ed.) p. 118; Trevivan v. Lawrence, 1 Salk. 276; S. C., 6 Mod. 258; Ld. Raym. 1051; Somes v. Skinner, 3 Pick. (Mass.) 52; White v. Patten, 24 Pick. (Mass.) 324; Russ v. Alpaugh, 118 Mass. 369, 376, 19 Am. Rep. 464; Knight v. Thayer, 125 Mass. 27, where it was said by the court: "We are aware that this rule, especially as applied to subsequent grantees, while followed in some States, has been criticised in others. * * * B u t it has been too long established and acted on in Massa- chusetts to be changed, except by legislation." Jarvis v. Aiken, 25 Vt. 635; Tefft v. Munson, 57 N. Y. 97. Compare Bernardy v. Mortgage Co. (S. Dak.), 98 N. W. Rep. 167. In McCusker v. McEvoy, 9 R. I. 528, 11 Am. Rep. 295, it was said that the rule should be altered by statute in order to give full effect to the registry laws, and prevent them from operating as a snare rather than a protection to purchasers. In Phelps v. Kellogg, 15 111. 131, a purchaser of the after-acquired title was charged with notice of a prior deed by his grantor which was recorded before the latter acquired title. Mr. Rawle comments upon the foregoing decisions as follows : " These cases- are wholly indefensible, and are opposed not only to the registry acts at law, but also to elementary principles of equity. Nor can such cases be sustained upon the ground that the doctrine has become a rule of property, for there is no rule of property involved in protecting a negligent purchaser who buys what his vendor has not got to sell." Covts. (5th ed.) p. 424. n Judge HAKE'S note, Doe v. Oliver, 2 Sm. L. Cas. 700; Calder v. Chapman, 52 Pa. St. 359, 91 Am. Dec. 163, overruling in effect Brown v. McCormick, 73 578 MARKETABLE TITLE TO REAL ESTATE. bad if he made such examination, is in no position to demand favors. It is true that the question is, where there was a war- ranty of the title in each case, but little more than which of the grantees shall be forced to an action on the covenant, but to this it is replied that the first purchaser has no right by his negligence to deprive the second purchaser of the estate and to force him to an action on the covenant, which, from the insolvency of the cove- nantor or from many other causes, may prove an unavailing remedy. Where one of two innocent persons must suffer a loss, it should be imposed upon him whose negligence made the loss possible. Besides, to extend the estoppel to a purchaser of the after-acquired estate, would virtually repeal the registry laws in nearly every State of the Union, or rather give them an effect which they were not intended to have, that is, to charge a pur- 6 Watts (Pa.) 60, 21 Am. Dec. 450; Dodd v. Williams, 3 Mo. App. 278; Burke v. Bevt?ridge, 15 Minn. 131; May v. Arnold, 18 Ga. 181; Faircloth v. Jordan, 18 Ga. 352. A purchaser, is not required to search for incumbrances upon the premises executed by his grantor prior to the time when he obtained title. Farmers' Loan & Tr. Co. v. Maltby, 8 Paipe (X. Y.), 361; Doswll v. Buchanan, 3 Leigh (Va.), 365. 23 Am. Dec. 280. where the same rule was applied, though the grantor had the equitable title. See Judge HARE'S note. Doe v. Oliver, 2 Smith's L. C. TOO. where it is said: "The strongest argument agaiiirit permitting the covenants or recitals in a deed to extend beyond the person of the grantor to an estate which he does not hold at the time, is thut it necessarily tends to give a vendee who has been careless enough to buy what the vendor has not got to sell a preference over subsequent pur- chasers who have expended their money in good faith and without being guilty of negligence. Such a result seems to be at variance with the re- cording acts of the country, which are generally held not to require an examination of the record prior to the period at which the title conveyed vented in the vendor. To allow a title to pass by a conveyance executed and recorded before it is acquired may, therefore, be a surprise on subsequent purchasers against which it is not in their power to guard; and is contrary to the equity which is the chief aim of the doctrine of estoppel, as moulded by the liberality of modern time*. It is, therefore, more consistent with reason, as well a* with principle, to treat deeds made by a grantor without title an creating an equity which, though binding an between the original particn, cannot be enforced apainst purchasers without notice. The unman- ageable character of estoppc-lK, founded solely on common law and technical grounds, is a reason for not invoking their assistance in any case where it is not absolutely needed, and for confining the operation of deeds on an After-acquired interest in lands, to the creation of an equity which will bind ubcqucnt grantee* with notice without endangering the title of a bona firlr purrhaMT.'* ESTOPPEL OF THE GRANTOR. 579 chaser with notice of a conveyance executed between parties who were strangers to the title. In many of the States there are statutes which provide in sub- stance that an after-acquired title shall pass to the grantee. 72 It does not appear, however, from their terms or from judicial con- struction, that they amount to anything more than affirmation of the existing rule as it respects the covenantor, or that it was thereby intended to enlarge the rights of the original grantee, as against a purchaser of the after-acquired title without notice. 73 It frequently happens that the equitable owner of lands, e. g., one who has paid the purchase money in full but has not received a conveyance, sells and conveys, or mortgages his interest in the premises, and afterwards receives a conveyance of the legal title, whether in such a case, a subsequent grantee without notice of the rights of the purchaser of the equitable title, would be estopped to set up the after-acquired legal title seems to have been nowhere clearly decided. 74 It has been intimated in Georgia that in such a "Arizona Comp. L. 1877, p. 384, 33; Ark. Mansf. Dig. 1884, 642; Cal. Hitts Code, 1876, 6106; Colo. Gen. Stats. 1883, 201; Dak. Lev. Rev. Code, 1883), vol. 2, p. 883, subd. 4; Ga. Rev. Code, 1882, 2690; 111. Rev. St. p. 279, 7; Iowa Rev. Code, 1884, 1931; Kans. Comp. Laws, 1879, p. 21,1, 5; Miss. Code 1880, 1195; Mo. Rev. St. 1879, 3940; Mont. Rev. St. 1879, p. 443, 209; Neb. Comp. St. 1885, p. 482., 51; Nev. Comp. L. 1873, p. 84, 261 ; Wash. Ty. Code, 1881, App. 25. 73 Mr. Rawle is of the opinion that the effect of these statutes is to over- ride any equities that might otherwise avail the second purchaser. Covts. for Title (5th ed.), p. 3?0n. The Kansas statute (Comp. L. 1879, p. 211, 5) is, perhaps, as unfavorable to the second purchaser as ftny. It provides that " where a grantor, by the terms of the deed, undertakes to convey to the grantee- an indefeasible estate in fee simple absolute, and shall not at the time of such conveyance have the legal title to the estate sought to be conveyed, but shall afterwards acquire it, the legal estate subsequently acquired by him shall immediately pass to the grantee, and such conveyance shall be as* effective as though such legal estate had been in the grantor at the time of the conveyance." It is to be observed thai this statute does not in terms provide that the original conveyance shall be effective against a purchaser of the after-acquired title without notice, and it may well be doubted whether the statute was so intended. "Unless in Doswell v. Buchanan, 3 Leigh (Va.), 365, 23 Am. Dec. 280, where H,, having only an equitable estate in lands, conveyed the same in trust to secure a debt which deed was duly recorded, and after acquiring the legal title, conveyed to D. with warranty. It was held that the recording 580 MAUKETABLE TITLK TO REAL ESTATE. case, the first grantee had a right to establish an equitable title as against the second grantee. 75 It is difficult to distinguish such a case from one in which the grantor had no title, legal or equitable, at the time of the tirst conveyance, and it would seem that in either case the second purchaser being without notice from the registry of the rights of the first purchaser, would not be estopped to set up the after-acquired legal title. Of course if the second grantee has actual notice of the rights of the first purchaser, 76 as where he sees him in the possession of the estate, 77 he cannot hold the sub- sequently-acquired title as against such purchaser, for he can no longer claim to be a purchaser of that title without notice. If the purchaser of the after-acquired title be not a privy to the conveyance under which the estoppel is claimed to arise, he will of course hold the estate as against the grantee. Thus, where an heir, before the death of his ancestor, conveyed all of his interest in the ancestor's estate, a purchaser at a sale made after descent of the property, under a judgment against the heir entered before the conveyance, being neither a party nor privy to that conveyance, was held not to be estopped thereby, and to be entitled to the land. In other words, an estoppel cannot affect a purchaser under a judgment against the grantor, entered prior to the con- veyance creating the estoppel. 78 Creditors of the grantor are not purchasers, and, of course, can- not subject the after-acquired estate to the payment of their debts of th." dvod conveying the rr/uHnbJp estate was not constructive notice of tluit deed to I)., on the ground that the statute requiring deeds to he recorded, makes them void na to sttbaequent purchase without notice if not recorded, hut Divert them no additional validity (as notice) if recorded. The principle of thi decision wws afterwards affirmed in Virginia by a statute which provides: " A purchaser nhnll not he affected bj the record of a deed or contract mndo by a person under whom hi* title is not derived, nor by the record of a deed or contract made by any person before the date of a deed or contract made to or with Biich person, which is duly admitted to record, and from whom the title of Htich person is derived." Va. Code, 1887, 8 2473. w BT5iw v. Vanrant. 15 Oa. 521. "Gnrhrnnur v. Mowry, 33 III. 331: Great Falls Ice Co. v. Worster, 15 N*. H. 412: Wark v. Willard, 13 N. H. 380. rt l)oe v. Dowdall, 3 Houst (Del.) 309. JarJuon v. Bradford, 4 Wend. (N. Y.) 619. ESTOPPEL OF THE GRANTOR. 581 as against the grantee. 79 A different rule may prevail in those States in which lien creditors are given priority over an unre- corded deed, assuming that the deed to the grantee, recorded at a time when his grantor had no title, is to be treated, to all intents and purposes of the registry acts, as an unrecorded deed. 80 215. COMPULSORY ACCEPTANCE OF AFTER-ACQUIRED TITLE IN LIEU OF DAMAGES. So long as a contract for the sale of lands remains executory, there is no doubt as to the right of the vendor, in most cases in which time is not of the essence of the contract, to perfect the title to the estate by purchasing the rights of an adverse claimant, and to compel the vendee to accept the title when so perfected. 81 But if the contract has been executed by a conveyance with a covenant of warranty, or a covenant of seisin, the grantor cannot, after a right to recover substantial damages for a breach of those covenants has accrued to the grantee, as where he has been evicted from the premises, buy in the rights of the adverse claimant and require the grantee to take the title so acquired in lieu of his damages. 82 Of course, as will 79 Kimball v.'Blaisdell, 5 N. H. 533, 22 Am, Dec. 476; Watkins v. Warsell, 15 Ark, 73; Brown v. Blake, 35 Okl. 4981, 130 Pac. 155; Lamprey v. Pike, 28 Fed. 30; Trudeau v. Fischer, 96 Neb. 275, 147 N. W. 698. 80 As in Virginia, Guerrant v. Anderson, 4 Rand. (Va.) 208. 81 Ante, 202. M Washb. Real Prop. 673; Rawle Covt, (2d ed. 244) ; Bigelow on Estoppel, p. 400; Burton v. Reeds, 20 Ind. 92; Bethell v. Bethell, 92 Ind. 318, 328; Jones v. Gallagher, 54 Okl. 611, 154 Pac. 552; So. Plantation Co. v. Kennedy, 104 Miss. 131, 61 So. 166; Nichols v. Alexander, 28 Wis. 118; Mtelnnis v. Lyman, 62 Wis. 191, 22 N. W. Rep. 405. In both of these cases the eviction was constructive, -fclie covenantees never having gotten possession of the property conveyed. Cf. Nbonan v. Illsey, 21 Wis, 139, 84 Am. Dec. 742; Blanchard v. Ellis, 1 Gray (Mass.), 199; 61 Am. Dec. 417, where the court said: "Supposing it to be well settled that if a new title come to the grantor before the eviction of his grantee, it would enure to the grantee, and not deciding, because the case does not require it, whether the grantee even after eviction might elect to take such new title and the grantor be estopped to deny it, we place the decision of this case upon this precise ground, that where a deed of land has been made with covenants of warranty, and the grantee has been wholly evicted from the premises by a title paramount, the grantor cannot after such entire eviction of the grantee purchase the title paramount and compel the grantee to take the same against his will, either in satisfaction of the covenant * * * or in mitigation of damages for the breach of it." In Winfrey 582 MARKETABLE TITLE TO REAL ESTATE. be readily perceived, the covenantee could have no object in reject- ing the after-acquired title and demanding his damages, unless the property had depreciated in value, in which case the damages, being measured by the consideration money, might be greater in amount than the value of the after-acquired title. 83 As respects the covenant of warranty, which is only broken by an eviction from the premises, there would seem to be no doubt that the acquisition of title from the real owner by the covenantor before an eviction had occurred would necessarily deprive the covenantee of any right to reject that title, because in such a case there would not be, and could never be, a right to damages against the cove- nantor. The covenant of seisin, however, is broken as soon- as made if the covenantor has no title, and a right of action imme- diately accmes thereupon to the covenantee. 84 In that action, unless the covenantee had been evicted, he could recover no more than nominal damages; consequently, it would seem immaterial to him whether he were left to his action or forced to take the after-acquired title. There can be no right to recover the con- sideration money as damages so long as the covenantee remains in the undisturbed possession of the* estate. It has been laid down by a learned writer upon this branch of the law of e&toppel that the effect of a conveyance with a covenant of warranty or of seMn is not to actually transfer to the covenantee the after-acquired estate, so as to deprive him of the election to take that estate, or recover damage* for the breach of covenant, but merely to rebut any claim of the covenantor to the estate, leaving to the covenant -e the option of proceeding in equity to compel a conveyance to him. of the after-acquired estate, or of recovering damages on the cove- nant. And, in order to give this position effect, the same writer declares that, upon a breach of the covenant of seisin resulting from a total failure of the title, the covenantee would have the option to retain the land, or to offer to reconvey it and recover its consideration." The objection to this view of the doctrine of the r. Drake, 4 Le (Tenn.), 293. it SMMMS to have been conwdpd that the grantor might perfect the title in a -suit for rescission on the ground of mistake. "Ante, | 164. Ante, | 116. -rUwle Covt. || 18C, 258. Mr. Rawle rites Tucker v. Clarke, 2 Samlf. Ch. ESTOPPEL OF THE GRANTOR. 583 after-acquired estate is that it would, in every case of breach of the covenant of seisin in which the covenantee had suffered no actual damage, give to him the right to rescind an executed contract of sale and have back his purchase money, though the outstanding title had not been, and might never be, asserted against him. It is true that, in actions to recover the unpaid purchase money, there are in a number of cases dicta or intimations that the purchaser may set up by way of recoupment the breach of the plaintiff's covenant of seisin, as a defense to the action, upon condition that he reconvey the premises to the grantor, 86 but the writer is not aware of any case -in which this has been permitted after the out- standing title had been acquired by the covenantor. There would (N. Y.) 96, in support of his views* on this point. In that case, however, the covenantee had been constructively evicted from the premises, having never gotten possession, and. it is very clear that in a case of constructive as well as an actual eviction the oovenantee cannot be compelled to take the after- acquired title. Mclnnis v k Lyman, 62 Wis. 191. If it is intended thereby to decide that a covenantee in the undisputed possession of the premises may practically rescind the contract by delivering up the possession and recover- ing back the purchase money paid, regardless of the after-acquired title, the decision is obiter dictum. The case was a suit, in equity to enjoin an action by the covenantee for breach of the covenant of seisin, and to compel the defendant to accept inr lieu of damages a title -subsequently acquired by the covenantor. The court said: "The executed contract was that the com- plainants were seised of these 4 lots, and if they were not they should repay the consideration money. This is sought to be reconsidered and turned' into a contract by which, if it should ever turn out that they were not seised, they might either, repay the consideration or procure a good title to be con- veyed. It would? have been a little 1 more plausible if there had been a semblance of mutuality about it, so that the defendant might have coerced them to procure a good title on- discovering the defect. But there is no pre- tense that the defendant had any such equity. The complainants' ground amounts to this: If the lots had been- worth two or three times the price which the defendant paid for them, then they could set up the outstanding title, deprive the defendant of his speculation, and throw him upon the cov- enants in his- deed, which would' restore to him the consideration paid. If, on the other hand, the lots should depreciate very much, the complainants would procure the outstanding title for 'him, and retain the price which he paid. There is no. equity or fairness in this, and the court cannot grant the relief prayed by the bill without first making such a contract for the parties ; a contract which they never did make, and, I presume, never would have made if any failure of title had been supposed probable when the conveyance was executed." "Post, 264. 584 MARKETABLE TITLE TO REAL ESTATE. seem to be no equity in allowing the covenantee to rescind his executed contract, when he is in the possession and enjoyment of everything that he could demand under that contract. Accord- ingly, it has been decided that, upon a breach of the covenant of seisin, from which the covenantee has suffered no actual damage, there can be a recovery of no more than nominal damages if the covenantor has gotten in the outstanding title. 87 But the defendant cannot show title acquired by himself after action brought. The rights of the parties must be determined according to their existence at the time when the action was com- menced. 88 If the covenantee recover a judgment for damages for a breach of the covenants of warranty or of seisin, he cannot afterwards 1 claim the benefit of a title acquired by the covenanter after the covenant was made. 89 If the vendor was guilty of fraud in respect to the title, the grantee cannot be reqiiired to take an after-acquired title, and this upon the same principle that a vendor "3 Sedg. Dam. (8th ed.) 978; Baxter v. Bradbury, 20 Me. 260, 37 Am. Dec. 4: Reese v. Smith, 12 Mo. 344; Cotton v. Ward, 3 T. B. Mon. (Ky. i 312; Burke v. Beveridge, 15 Minn. 208; Blackmore v. Shelby, 8 Humph. (Tenn.) 439; Burton v. Reeds, 20 Ind. 92; Farmers' Bank v. Glenn. 68 X. C. 39; Hughes v. McNider, 90 N. C. 248. In this case the> vendor was allowid. alter conveying the property, to perfect the title by paying off inc.imibranceB. Cornell v. Jackson, 3 Cush. (Mans.) 506; McCarthy v. Leggett, :! H'll (N. Y.), 134; King v. Gilson, 32 111. 349, 83 Am. Dec. 269; Morrison v. Underwood, 20 N. H. 360; Fletcher v. Wilson, 1 Sm. & Mu Ch, (Miss., 376: Hartley v. Costa, 40 Rons. 552, 20 Pac, Rep. 208, semble. Building Co. v. Fray, 96 Va. 559-, 32 S. P.. Rep. 58; Middlebury College v. Cheney. 1 Vt. 336. In Cross v. Martin, 46 Vt. 14, it was said that the after-arquin-il titlo enured to the prantee in discharge of the grantor's covenants, hut tho que>t inn whether the grantor must take such title in lieu of damages was not lx>fore the court. Knmvles v. Kennedy, 8*2 Pa. St. 445; Mclx>nnan v. Prentice, 85 Wi. 427; Marsh v. Sheriff. (Md.) 14 Ml. Rep. 664; Kimlmll v. \\Vst. 15 Wall (U. 8.) 377. Note, that in Cochran v. Paseault, 54 Md. 1, it was li. 1 i that under a covenant for further assurance the grantor had the right to get in an outstanding title and tender a new deed to tho grant re removing the objection to the title, and that the grantee would he compelled to accept such deed. "Morris v. Phelpn, 5 Johns. (N. Y.) 49, 4 Am. Dec. 323; Fitehuph v. t'roghan. 2 J. J. Manh. (Ky.) 430, 19 Am. Dec. 139, But see Noonan v. IINley. 21 Win. 147, where the point was questioned, and King v. Gilnon, 32 ia 348, 8* Am Dec. 60. "Bank v. Meroereau, 7 Barb. Ch. (N. Y.) 528, 572; Porter v. Hill, 9 Mas*. 94, 6 Am. Dec, 22; Stinson v. Sunnier, 9 Mass. 143. ESTOPPEL, OF THE GEANTOK. 585 guilty of fraud will not, even where the contract is executory, be permitted to perfect the title. 90 The acceptance of a conveyance is not, as a general rule, a merger of the right to rescind the con- tract on the ground of fraud. 91 216. WHAT COVENANTS WILL PASS THE AFTER- ACQUIRED TITLE. A covenant of warranty will, in every case in which the grantor undertakes to convey an indefeasible estate, and not merely such interest as he may have, estop him from afterwards holding an after-acquired estate in the premises, as against his grantee. The reason is to avoid circuity of action; 92 the passing 90 McWhirter v. Swaffer, 6 Baxt. (Tenn.) 42; Woods v. North, 6 Humph. (Tenn.) 310, 44 Am. Dec. 312; Blackmore v. Shelby, 8 Humph. (Tenn.) 439. The reasons for this rule are clearly stated as follows in Alvarez v. Brannan, 7 Cal. 509, 68 Am. Del. 274: " Where there is no fraud, and the vendor binds himself to convey a certain title and afterwards discovers a defect which he can cure, and thus convey to the purchaser all the latter bargained for, it is obviously just that the vendor should be allowed to do so. But when a party misrepresents material facts, which he knows to be untrue, the law will not permit him to derive any benefit from the transaction. The injured party has a right to elect to rescind the contract and recover the purchase money, or he may proceed upon the covenants in his deed. In case he elect to rescind, he must place the vendor in the same position he occupied at th& date of the transaction. If the rule were otherwise, it would offer a reward for injustice. A party knowing lie had no title could sell, and, if the property declined in price, he could purchase the outstanding title for less than he received and tender it to the purchaser; and, if the property advanced, all he would be required to do would be to refund the purchase money with legal interest. All the wrongs would be on his side, and yet he would enjoy all the advantage of the market. The risk of loss would be entirely thrown upon the innocent, while all the chance of gain would be on the side of the guilty party. If such be the legitimate result of the rule, there must be something radically wrong in the rule itself. A rule of law that rewards the guilty and punishes the innocent would defeat the noble ends aimed at by the gov- ernment. But, as the rule of law is different, the innocent party had his election either to take the title, if it can be had of the vendor, or to recover the purchase money with the interest." 81 Post, 270, 276. 02 Baxter v. Bradbury, 20 Me. 260, 37 Am. Dec. 49; Ruggles v. Barton, lit Gray (Mass.), 506; Dickinson v. Talbot, 14 B. Mon. (Ky.) 65, and cases cited, p. 493, note 2; Breen v. Morehead, (Tex. Civ. App.) 126 S. W. 650. A deed executed by an attorney in fact with warranty passes an after- acquired title, though the power of attorney did not authorize the execution of a warranty deed. Lindsay v. Freediman, 83 Tex. 263, 18 S. W. 727; Guffey Petroleum Co. v. Hooks, 47 Tex. Civ. App. 560, 106 S. W. 690. 74 586 MARKETABLE TITLE TO REAL ESTATE. of the after-acquired estate to the grantee satisfies the grantor's covenant and takes away the covenantee's right of action, unless he has been evicted from the premises. 93 A covenant of seisin will also estop the grantor from setting up the after-acquired title; 94 except in certain of the !New England States, in which it is held that this covenant is a mere admission that the covenantor is seised de facto, and that there is no estoppel because there is no right of action if the grantor was actually, though wrongfully seised.* 5 The covenants for good right to convey and for quiet enjoyment will transmit the after-acquired title. 96 The covenant of further assurance is also as effectual for that purpose as the covenant of warranty, since the covenantor thereby engages to convey the after-acquired title, and may be in equity compelled so to do. 97 The covenants of seisin, against immmbrances, and for quiet enjoyment implied from the words " grant, bargain and sell," have been held to act as an estoppel ; 98 so, also, a covenant of war- ranty implied from those words. 99 But in Missouri, the cove- nants of seisin, against incumbrances, and for further assurance implied by statute from like words, have been held insufficient to estop the grantor, upon the ground that they amount to nothing more than a quit claim. 1 It seems that the warranty implied from a partition will not pass an after-acquired estate. 2 In Kuirlaiul covenants for title are not sufficient to create an estoppel against Rawle Covta for Title (. r >lh e\V..lf v. Haydn, 24 111. 525; King v. Gibson, 32 111. 352, 83 Am. I 269; Pratt v. Pratt, 96 111. 184, 197; Porter v. Henderson, (Ala.) 82 S... 668. "Blakealee v. Insurance Co., 57 Ala. 205. 'Bogy v. Shoab, 13 Mo. 305; Chauvin v. Wagner, 18 Mo. 53; Gibson v. Chouteau, 39 Mo. 666; Butcher v. Rogers, 60 Mo. 138. Rawle CovU. (5Ui ed.) pp. 381, 450; Walker v. Hall, 15 Ohio, 355, 86 Am. Dec. 482. ESTOPPEL OF THE GRANTOR. 587 the grantor. There must be a precise averment in the deed that he is seised of the estate purported to be conveyed. 3 A consent decree having the effect of a conveyance but expressly providing that the title is not warranted, was held not to estop the grantor from setting up an after-acquired title to the property. 4 If the grantor undertakes to convey an estate of a particular description, he will 'be estopped from setting up against his grantee an after-acquired title, though his conveyance contained no covenants for title.* 217. ESTOPPEL NOT DEPENDENT ON AVOIDANCE OF CIB- CUITY OF ACTION. The following instances in which the doc- trine of estoppel has been applied when there was no right of action on the grantor's covenants clearly show that the doctrine of estoppel and transfer of the after-acquired estate does not depend altogether on avoidance of circuity of action. Those instances are the estoppel of married women, of the sovereign power, of bankrupts, and of covenantors against whom no action can be maintained on the covenant by reason of the Statute of Limita- tions, 6 to which may be added those cases in which the grantor, undertaking to convey an estate of a particular quality or descrip- tion, is held to be estopped from setting up an after-acquired title, even though the conveyance contained no. covenants for title. The grantor is as much bound by the recitals in his deed as by formal covenants. 7 In some of the States it is provided that a fee-simple 8 Heath v. Creelock, L. R., 10 Ch. 30; Gen. Finance Co. v. Liberator, etc., Society, L. R,, 10 Ch. Div. 15. 4 Barren v. Cooperage Co., 185 Mo. App. 625, 171 S. W. 683. "Post, 217. Cole V. Raymond, 9 Gray (Mass.), 217, the court saying that while the covenant is a personal contract to be enforced by personal action, in which the usual incidents to a personal action will be applied, the, covenant is not thereby affected in its broader application and effect as a covenant real. Care must be taken to distinguish this decision from those which hold that the title of a dissejsor, which has been perfected by the statute limiting the time within which lands may be recovered, will not enure to the benefit of the dis- seisee-coVenantee. Ante, 208. JPost, 218. Denn v. Cornell, 3 Johns. Gas. (N. Y.) 174; Carver v. Jack- son, 4 Pet. (U. S.) 87; Flanary v. Kane, 102 Va. 547, 46 S. E. Rep. 681; Summerfield v. White, 54 W. Va. 311, 46i S. E. Rep. 154; Breen v. Morehead, (Tex. Civ. App.) 126 S. W. 650. ~)SS MARKETABLE TITLE TO KEAL ESTATE. conveyance shall operate to pass a subsequently acquired estate of tlir grantor. 8 Upon the question whether a married woman is estopped by her covenants or conveyance from setting up against her grantee an after-acquired title to the estate there is a conflict of authority. The rule which seems to prevail in most of the States is that she is not estopped ; 9 principally for the reason that she cannot bind herself bv her covenants, and that, consequently, there is no room for application of the doctrine of estoppel in order to prevent a circnity of action. 10 There are decisions, however, that it is immaterial whether the deed was with or without warranty, there Ante. 214. Chirk v. Baker. H Cal. G12, 76 Am. Dec. 449; Bernardy v. Mortgage Co., US. Dak.) !KS X. \Y. Rep. 107. Bishop Married Women, 603: Hempstead v. Kaston, 33 Mo. 142; Hobbs V. King, 2 Met. (Ky.) 142; Prior v. Loeb, 119 Ala, 450, 24 So, Rep. 714: Gonzales v. Hukil, 49 Ala, 260, 20 Am. Rep. 282; Wadleigh v. Glines, 6 X. H. 17, 23 Am. Dec. 705; Goodenough v. Fellows, 53 VU 102; French v. MeMillion, 79 W. Va, 639, 91 S. K. 538, L. R. A. 1917 D. 22& In Lowell v. Daniels, 2 Gray (Mass. ) 161, Gl Am. Rep. 448, it was held that a married woman could not be estopped by her acts in pais, even though fraudulent, from setting up an after-acquired title to the land. A party who is incapable of conveying by deed cannot l>e barred by an estoppel in pais. But where a married woman, while she had only an equitable estate in certain lands, exe- cuted a deed of trust upon it jointly with her husband, and, after the deed of trust had l*een foreclosed, obtained a deed from her vendor conveying the legal title, it was held that she could not set up Ruch title against the pur- i lia-M-r under the deed of trust. She would not lie estopped to set up against him iin after-acquired title paramount to the riyht conveyed by tier in trust, l>ut the legal title received by her from her vendor was in equity subordinate to the right ^o conveyed, and could not avail her as an after-acquired title. Barker r. Circle, 60 Mo. 258. "Jackson v. Yanricrhcyden. 17 Johns. (X. Y.) 167, 8 Am. Deo. 37S. a lead- ing rai; Carpenter v. Schermerhorn, 2 Barb. Ch. (X. Y.) 314; Martin v. Dwelly, 6 Wend. (X. Y.) 14. 21 Am. Deo. 245; Orout v. TowTioend, 2 Hill (X. Y., 5o4; Edwards v. Davenport, 4 McCr. (U. S.) 34; Teal v. Wood- worth. 3 Paige (X. Y). 470. In Thompson v. Merrill, 58 Iowa, 419, it was held that a statute providing that a married woman should not lie liable on her co%-enants in a conveyance of the husband's lands relieved her a* well of liability on her covenants by way of estopjx?! iu* for damages. When, by utatute, the hul>aiul in not bound by covenants for title in the wife's deed in which he joined, he is not estopped by such deed from claiming an interest in the land subsequently acquired by him. Iritth v. Steeves, 134 Iowa 286, 134 X. W. 634. ESTOPPEL OF THE GEANTOE. being no estoppel in either case. 11 The mere fact that she joined in a conveyance for the purpose of relinquishing her dower will not estop her from setting up the after-acquired title. 12 Nor will a statute authorizing her to convey have that effect. 13 In several of the States it has been held that a married woman cannot set up a subsequently-acquired title against her grantee, even though she is not answerable in damages for a breach of her covenants. 14 Such decisions necessarily proceed upon the prin- ciple that a grantor shall not, in equity, be permitted to repudiate . his own deed. Upon the same principle it has been held that a married woman is as effectually estopped by a deed without cove- nants as if the deed contained them. 15 She is estopped from setting np her own title existing at the time of the conveyance; otherwise, the statutes permitting her to convey would be rendered nugatory. 16 In those States in which a married woman is per- mitted to bind her separate estate by her contracts to the same extent and in the same manner that a married man might, her property is bound by her covenant of warranty, and by such cove- nant she is estopped from setting up an after-acquired title to the 11 Den v. Demarest, 1 Zab. (N. J.) 541. See, also, the remarks of McCRARY, J., in Edwards v. Davenport, 4 McCr. (U. S.) 34; Jackson v. Vanderheyden, 17 Johns. (N. Y.) 167, 8 Am. Dec. 378; Raymond v. Holden, 2 Gush. (Mass.) 264, 270; Griffin v. Sheffield, 38 Miss. 3.59, 393, 77 Am. Dec. 646; Strawn v. Strawn, 50 111. 33; State v Kemmerer, 15 S. Dak. 504, 90 N. W. Rep. 150. 11 O'Neill v. Vanderberg, 25 Iowa, 107. Whether she would be estopped if the conveyance were of her own land, 431. In Schaffner v. Grutzmachen, 6 Iowa, 137, it was suggested that to avoid any question as to estoppel the wife should not join in the body of the deed, but should appear only in the " in testimonium " clause. "Dominick v. Michael, 4 Sandf. (N. Y. S. UM Refrigerator Co. v. Ijingley, 66 Ark. 48, 51 S. W. Rep. 08, it wa* hrld that an art providing that nti after-acquired title should pass, under the prior conveyance, immediately to the grantee, did not apply to conveyance* !>y the Stnte. rhe State not l-*-5ng expressly mentioned in the act. "Chamberlain v. Me*dr. 16 X. H. 381; Gregory v. Peoples, 80 Va. 355. In Bii*h v. Cooper. 2ft M5*s. 599, 59 Am. Dec. 270, 18 How. (U. S.) 82, it ESTOPPEL OF THE GRANTOR. 591 without covenants, 24 notwithstanding his discharge. If the deed contain covenants it is apprehended that the same rule applies, whether there had been, or had not been, a breach of the covenants at the time of the discharge, since the estoppel does not depend upon the personal liability of the covenantor for damages. 25 218. MERE QUIT CLAIM DOES NOT OPERATE AN ESTOPPEL. As a general rule a mere quit claim of all the grantor's interest in the premises, without covenants for title, will not estop him from setting up an after-acquired title as against the grantee. 26 And if appeared that the covenants in the bankrupt's deed were not broken until after the discharge in bankruptcy, and there being no right of action on the covenant at the time of the discharge, and no claim for liability on the covenant provable in bankruptcy, it was held that the bankrupt was estopped to set up the after-acquired title. "Stewart v. Anderson, 10 Ala. 504; Dorsey v. Gassaway, 2 Harr. & J. (Md.) 402; 3 Am. Dec. 557, where, however, the question arose, in a contro- versy as to the title of personal property. 25 Gregory v. P'eoples, 80 Va. 356, where it was said by LEWIS, P.: "It was claimed that by his discharge in bankruptcy H. was released from the obligation of his covenant to warrant the title to the land conveyed by him, and that, consequently, the subsequent conveyance of the legal title to him did not enure to the benefit of his grantee. This contention would be well founded if the case of thei appellant rested solely on the personal liability of H. growing out of his covenant. But it does not. Such a covenant is not only one running with the land, for the breach of which the covenantor is liable in an action for damages, but as something more. By its operation a paramount title, subsequently acquired by him, enures to the benefit of the covenantee, and in equity he is estopped from asserting that any outstanding title existed inconsistent with what he undertook to convey. It has, there- fore,, been held that a discharge in bankruptcy, while effectual to release the covenantor from liability in an action for a breach of the covenant, does not at all affect the estoppel. This is on the ground that, as the release is by force of the statute, and not by the act of the covenantee,, or those claiming under him, no greater effect will be given to it than is Warranted by the term of the statute; and for the further reason that existing personal liability is not necessary to work an estoppel, and, consequently, there is no necessary connection between the personal liability of the debtor on his covenant and the estoppel which arises therefrom." The case does not show whether the breach of warranty took place before or after the discharge in bankruptcy, and it may be that the foregoing observations are, to some extent, obiter dicta. 28 Co. Litt. 446, p. 265, a. b.; Bigelow Estoppel, ch. 11, 4; Rawle Covt. 247, 2 Washb. Real Prop. 665; McCracken v. Wright, 14 Johns. (N. Y.) 194; Jackson v. Hubble, 1 Cow. (N. Y.) 613; Jackson v. Winslow, 9 Cow. (N. Y.) 18; Jackson v. Peek, 4 Wend. (N. Y.) 302; Pelletreau v. Jackson, 11 Wend. (N. Y.) 119, distinguishing Jackson v. Bull, 1 Johns. Cas. (X. Y.) 81, and 592 MAKKKTABLE TITLE TO REAL ESTATE. the grantor warrant the title specially, the subsequently-acquired estate will not pa: Brw* v. Luke, 9 Kans. 201, 12: Am. Rep. 491; Scoffing v. Grand- BtafT, 12 Kr.nn. 470; Young v. Clippinper, 14 Kans. 148, where the grantor not only quit-claimed his present interest but any that he might have in the future, and undertook to defend the property a-.-jiin.-t all claims if any should ntterward be asserted against it. Ott v. Sprague, 27 Kans. 624; Harden v. Collins, 8 Xev. 49; Demarest v. Hooper. 2 Zab. (X. J. L.) 620; Howe v. Harrington, 18 X. J. Eq. 496; Smith v. De Russy, 29 X. J. Eq. 407; Dart v. Dart, 7 Conn. 250; Tillotson v. Kennedy, 5 Ala, 413, 39 Am. Dec. 330; Morrison v. Wilson, 30 Cal. 344; Cadiz v. Majors, 33 Cal. 288; Quivey v. J'.aker, 37 CaL 465; Gibson v. Chouteau, 39 Mo. 536; Bogy v. Shoab, 13 Mo. 3tf~>; Butcher v. Rogers, 60 Mo. 138; Kimmel v. Benna, 70 Mo. 52, 68; Kinsman v. Loom is, 11 Ohio, 475; Frink v. Darst, 14 111. 304, 58 Am. Dec. 55. overruling FrUby v. Ballance, 2 Gil. (111.) 141, both cases being ejectment founded on the same quit-claim deed. In Bennett v. Waller, 23 111. 97 ( 1st ed. 182), it was held that the rule stated in the text did not apply if the quit claim contained a covenant for further a~surance. It is now declared by utatnte in that State that a quit claim shall not pass an after-acquiretl title. R. S. 1S8.1. cth. 30, $ 10, p. 280; Awry v. Aikins, 74 Ind. 283; Locke v. White. 89 Ind. 492: Sweet SIT v. Lowell, 33 Me. 452. In Coal Creek Mining Co. v. RIMK, 12 Lea (Tenn.). 5. it was aaid that if the prcial war- ranty was of the title to the land, and not merely of an existing or limited interest therein, the grantor would be estopped. In Mississippi it is pro- vided by statute that a deed of quit claim and release shall oxtop the grantor ami hi* heir* from averting a subsequently-acquired title. Code. 1S89. I 1195. Before this statute the rule was as stated in the text. Mitchell v. Woodaon, 37 Mift*. 578. The reasons for the rule were thus explained in Western Min. & Mfg. Co. v. Peytona Coal Co., 8 W. Va. 449: " If thon, at the time the grantor executes the covenant of special warranty, the title in the land in in a third person, not because of any act or default of the CO?enan< or, arul nuch person aflerwurds asaerts and enforces the title a^minst the onvenantee, Uie covenant it* not Uierehy broken, ami the covenantor is not in mny way responsible. The coveuatrtee pays nothing for the actual ESTOPPEL OF THE GRANTOR. O9o a defect of title not embraced by his covenant. 27 Thus, the grantor may buy in a title paramount to that under which he held, and the title so acquired will not enure to his grantee, but he cannot acquire the very title which he warranted, and hold it against his grantee. 28 The reason why no estoppel arises under a mere quit claim, pure and simple, is partly because there is no right of action against the grantor, if the estate be lost to one having a paramount title, and consequently no occasion for the application of the doctrine of estoppel to prevent circuity of action. 29 There is no injustice in preventing the passage of the after-acquired estate to the grantee, where the grantor merely title, but pays only for the claim of the covenantor together with the covenant. No duty rests on the covenantor to procure the title for the benefit of the covemantee,, or at all to protect him against, or indemnify him for, the assertion and enforcement of the title, and his consequent eviction. The title in the third person may, without the agency of the covenantor, descend or otherwise come f the grantee. 85 But a conveyance of a contingent interest witlumt m Western Min. & Mfg. Oo. v. Peytona Coal Co., 8 W. Va. 440. 11 Post, this flection. "Harrison v. Boring, 44 Tex. 256. In Keith Lumber Co. v. Oil Co., % j:.7 Fed. 1, holding the grantor extopped, stress was laid upon the fact that the word* of the conveyance were " grant, bargain, and sell," instead of " quitclaim." "Lamb v. Wakefield, 1 Sawy. (U. S.) 251. Here the covenant was ajrainst all person* except the government of the United States and thoM> di-rivin^ title from that government. The covenantor afterwards acquimi title from a donee of the government, and it was held that wich title did not >nuiv to tho covenantee. See, also, Lamb v. Kann, 1 Sawy. (I'. S.) 33ft; Quivt-y v. Hakrr. 37 Cal. 471; Fields v. Squires, Dflhdy (U. S.), 3*>0; B4ake v. Tucker, 12 Vt. 44. "Varick v. Edwmrdu, 1 Hoff. Ch. (N. Y.) 382: Krn-t v. KnM. ITS Mi,-h. 100, 144 N\ W. 513, ftl L. K. A. (N. S.) 317. "4 Kent Com. 201; Read v. Fopg. no M<>. 7' : H;..M- r. TaU.r. U V IF. 521; Fulton v. Teager, 183 Ky. 381, 209 S. \V. r,:tf> : Kn-li-h v. M ( j 157 Ala. 487, 4S So. 113; Cherry v. Cherry, I X. 0.) 1"! S. K. 504. ESTOPPEL OF THE GRANTOR. 595 covenants of title will not operate an estoppel. 36 So, also, if an heir convey his estate in expectancy by quit claim, he will not, after the death of his ancestor, be estopped to hold the estate flescended to him as against his deed. 37 If the heir conveys not merely his interest in expectancy, but the land, itself with cove- nants of general warranty, he will be estopped. 38 Even though- a deed contains general covenants for title, if it appear that the grantor does not intend to convey an indefeasible estate, but merely such present right, title or interest as he may have in the premises, that is, no greater estate than he was really 18 Jackson v. Bradford, 4 Wend. (N. Y.) 619. 37 3 Washb. Real Prop. 94, 95; Jackson v. W hi slow, 9 Cow. (N. Y.) 1,3. Hart v. Gregg, 32 Ohio St. 502; Spacey v. Close, 184 Ky. 523, 212, S. W. 127; Blackwell v. Harelson, 99 S. C. 264? 84: S'. E. 233. Contra, Bohon v. Bohon, 78 Ky, 408. If a warranty deed purport to convey only such interest as the grantor may have in the future as an heir or grantee, it is void as the conveyance of a mere expectancy or naked possibility of an interest, and will not estop the grantor, from setting up a title subsequently acquired a^ such heir or grantee. Dailey v. Springfield, 144 Ga. 395, 87 S. E. 479, Ann. Cas. 1917 D. 943. In Steepler v. Silberberg, 220 Mo. 2SS; 119 S. W. 418, it was held that a conveyance with warranty of the grantor's "right, title, and' interest " in a 1'ot, not being a conveyance of the lot itself, did not estop him from setting up title to the lot thereafter acquired by him as heir to his mother. In McClure v. Raben, (Ind.) 2"> N. E. Rep. 179, it was held that a conveyance of air expectancy by an heir apparent without war- ranty, the ancestor being still alive but not informed of the transaction, would not estop the heir from holding the interest after the death of the ancestor, though the purchase was in good, faith, and full value 'was paid for the expectant estate. But if the deed be with warranty, the heir will be estoppejd. Habig v. Dodlge, (Ind.) 25 N". E. Rep. 182. Johnson v. Branch, 9 S. Dak. 116; GS K W. Rep. 173. ^Ackermann v. Smiley, 37 Tex. 211. Holmes v. Carr, 163 N. C. 122; 79 S. E. 413; Baker v. Austin, 174 N. C. 433; 93 S. E. 949; Molina v. Ramirez, 15 Ariz. 249; 138> Pac. 17. An heir conveying by quitclaim is estopped to set up title to the property on the death of the ancestor, if an intention to convey an estate of & particular description appears. Pring v. Swarm, 176 Iowa 153, 157 N. W. 734. A prospective heir may law-fully sell and convey kis interest in the esitate. Blackwell v. Harelson, 99 S. C. 264 ; 84 S. E. 232, disapproving McCall v. Hampton, 99 Ky. 166; 32 S. W. 406; 33 L. R. A. 266; 56 Am. St. Rep. 336. If one attempts to convey, with warranty, land which he does not own, his subsequent acquisition of title to the property as heir enures to the benefit of his grantee. Zarate v. Villareal (Tex. Civ. App.) 155 S. W. 328. One conveying his interest as executory devieee, is estopped to claim such interest on the happening of the event on which the interest was to vest. Smith v. Carroll, 286 111. 137; 121 N. E. 254. 59G MARKETABLE TITLE TO REAL ESTATE. possessed of, the after-acquired title will not pass. 39 Of course, the grantor cannot acquire by estoppel a greater estate than the instrument creating the estoppel purports to convey. A warranty cannot enlarge the estate ; it attaches only to the estate granted or purported to be granted. If it be a life estate the covenantor warrants nothing more. He cannot be estopped- by the deed, or the covenants contained in it, from alleging that the fee did not pass, when the deed shows precisely what estate did pass, and that it was less than the fee. 40 The foregoing rules show the necessity of great care and pru- dence in taking conveyances of expectant or contingent interests in real property. At the first glance any one who had not given the subject attention, would, very likely, conclude that a convey- ance of all the grantor's " right, title and interest," with general covenants for title, would be an ample assurance of the title to the property upon the happening of the event vesting the title in the grantor. Apparently the only safe course is to take an ordinary, unqualified conveyance of the property in fee simple, with general "Hannick v. Patrick, 1*19 U. S. 156; Brown v. .lack.M.n. 3 \Vh. (U. S.) 4:. Sanford v. Senford, 135 Mans. 314; Hoxie v. Finney, 16 Gray (Ma Sweet v. Brown, 12 Met, (Mass.) 175; 45 Am. Dec. Jt:: : Wight v. Shaw. ."> Cush. (Mam.) 56; Allen v. Holton, 20 Pick. (Mass.) J , IVix.n- Unknown, 43 Me. 436; Shoemaker v. Johnson, 35 Ind. 33: Locke v. White, 89 Ind. 492; Adanw v. Ross, 1 Vr. (N. J. L.) 509; 82 Am. Dec. 2:;7 : \\ I, Brocaw, 44 Ohio St. 33; Wyim v. Barman, 5 Grat. (Va.) Hi:!: Bell v. Twilight, 6 Fost. (N. H.) 411; 45 Aw. Dtc. 367: Gee v. Moore. 1'4 ( al. 471: Kimball v. Semple, 25 Cal. 441.452; HOJH> v. Stone. ID Minn. 141. 14!>: (Jil.M.n v. Chouteau, 3 Mb. 536, 567; 100 Am. Doc. ."(ill. Valle v. Clemen-. Is M 486; Bogy v. Shoab, 13 Mo. 365; Holbrook v. Debo, 99 III. :57 The rt.le toted in the text has been extended so far as to defeat tin- pa --in;,' of a vested interest to the covenantee which, at the time of the conve\ain e. was ( out indent. Thus, in Blanrhard v. Brook*, 12 Pick. (Mass.) 47. a person l>einjr tlie d. of a contingent, and also of u vested remainder, executed a dri-d with general warranty purporting to convey all lri "undivided j-hnro or jMirtion, riL'lr title and interest of, in and to" the lands etc. Th<- court said the ran; of all the frrantor.'a "right, title ami intcn-t." and not of tin- land it -elf, or Cany particular eatate in the land, " Tlie grant in le^iil effect ojH-rated only to pum UH> vmted interest, and not the contingent interest, and tin- warranty being co-extenive with the grant, did not extend to the contingent interest, and of it>urM', did not operate upon it by way of ettopj>e *2 Co. LitU 385, b. Adam* v. Rosq, 1 Vr. (X. J.) 605; 82 Am. Dec. -J37. ESTOPPEL OF THE GKANTOR. 597 covenants for title, or to require the vendor, conveying without covenants, to insert recitals showing that he intends to part with all prospective as well as present interests in the estate. But while a mere quit claim of the grantor's present interest will not estop him from claiming the after-acquired interest, it does not follow that there will be no estoppel wherever there are no covenants for title. If the deed bears on its face evidence that the grantor intended to convey, and the grantee expected to acquire, an estate of a particular description or quality, as dis- tinguished from a quit claim or release, the after-acquired title will pass to the grantee, though the deed contains no formal cove- nants for title. 41 It has been held that the fact that an instru- 41 Ante, 217. Bigelow Estoppel (3d ed.), 333; Rawle Oovt. (5th. ed.) 247. Van Rensselaer v. Kearney, 11 How. (U. S.) 298; French v. Spencer, 21 How. (U. S.) 228, 240; Clark v. Baker, 14 Cal. 612, 629; Taggart v. Risley, 4 Oreg. 235; Habig v. Dodge, (Ind) 25 X. E. Rep. 182; Hagensick v Castor, 53 Neb. 495 ; 73 N. W. Rep. 932 ; Lindsey v. Freeman, 83 Tex. 259 ; 18 S. W. Rep. 727; Scales v. Fohn, (Tex. Civ. App.) 59 S. W. Rep. S37; G-arrett v. McLain, 18 Tex. Civ. App. 245; 44 S. W. Rep. 47; Anderson v. Casey Co., (Tex. Civ. App.) 120 S. W. 918; Van Rensselaer v. Kearney, supra, is a leading case upon this point. It distinguishes between a quite claim or release, and a deed without covenant for title, yet which shows on its face that the grantor intended to convey an estate of a particular description or quality and not merely whatever interest or estate the grantor might happen to have. The court, by NELSON, J., after discussing certain analogous authorities, continued : " The principle deducible from these au- thorities seems to bte that whatever may be the form or nature of the convey- ance used to pass real property, if the grantor sets forth on the face of the instrument, by way of recital or averment, that he is seized or possessed of a particular estate in the premises and which estate the deed purports- to con- voy; or, what is the same thing, if the seizure or possession of a particular estate is affirmed in the deed, either in express terms or by necessary implica- tion, the grantor and all persons in privity with him shall be estopped from ever afterwards denying that he was so seized and possessed at the time he made the conveyance. The estoppel works upon tihe estate and binds* an after-acquired title as between parties and privies. The reason is, that the estate thus affirmed to be in the party at the time of the conveyance must necessarily have influenced the grantee in making the purchase, and hence the grantor and those in privity with, him, in good faith and fair dealing, should be forever thereafter precluded from gainsaying it. The doctrine is founded, when properly applied, upon the highest principles of morality and recommends itself to the common sense and justice of every one. And although it debars the truth in the particular case, and, therefore, is not 598 MARKETABLE TITLE TO REAL ESTATE. ment is a quit-claim deed in form will not preclude the grantee from showing that something more than the grantor's interest, such as it might be, was intended to be conveyed. 41 The principle involved in these cases is, that the grantor having by his conveyance represented himself to be the true owner of the particular estate therein dscribed, should be estopped to allege the contrary, if he should afterwards acquire title to the estate, upon the same ground that a party to an instrument is estopped by the recitals which it contains. If the grantor in the quit claim allege himself to be the owner of the premises, both he and those claim- ing under him will be estopped to deny that fact and to hold the after-acquired title. 45 In Maine it has been held that the covenant of "non-claim" will not operate an estoppel, for the reason that unfrequently characterized as odious and not to be favored, still it should be remembered that it debars it only in the case where its utterance would con- vict the party of a previous falsehood: would be the denial of a previous affir- mation, upon the faith of which persons had dealt and pledged their credit or expended their money." In Nixon v. Caroo, 28 Miss. 414, 426, ithe following instrument was held sufficient to estop the heirs of the grantor from setting up the after -acquired title: "PASS CHRISTIAN, October 7, 1815. " I, the undersigned, decVare that I, John Baptiste Careo. have sold to Messrs. Francis Bouquie and Anthony Martin my plantation and two cabins situate theneon, together with the enclosure and all the rails. (Here follows a description of the property and recital of the consideration.) " (Signed) JEROME BAPTISTE CARGO." In Thomas v. Stickle, 32 Iowa, 72, it was heJd that a quit claim of all th> grantor's interest would include a tax certificate held by the grantor at the time of the conveyance, but not disclosed by him, by means of which he after- wards obtains a tax deed of the land; and that the title so acquired enured to the benefit of the grantee. The recital "being part of the land purchased by me of the town of Fox- croft" is not a covenant for title operating a transfer of an after-acquired estate in the fond. Manson v. Peaks, 103 Me. 430, 69 All. 690, 125 Am, St. Rep. 311. 'Harrison v. Boring, 44 Tex. 255. If the consideration of thte quit claim did not appear upon its face, parol evidence would seem admissible to show that the grantor received the full value of the estate, end that, therefore, an estate of a particular description was intended to be conveyed; this upon the ground that parol evidence is, aa a general rule, admissible to show the con- Bide rat ion of an in<*trumcnt as between the parties. - Jackson v. Waldron, 13 Wend. (N. Y.) 178. ESTOPPEL OF THE GRANTOR. 599 such, a covenant amounts to no more than a mere quit claim. 44 A contrary view has been taken in Massachusetts. 45 An exception to the rule that a quit-claim deed will not pass an after-acquired title has been held to exist where one who, after purchasing lands from the State and paying for them, quit claimed his interest to a third person before a patent issued. In such a case the title when perfected by the patent passes to the grantee, on the ground that the inception of the title by the pur- chase and its consummation by patent are parts of the same title, the patent relating back to the inception; and upon the further ground that the grantor intended to convey and the grantee expected to receive, not merely such inchoate title as the grantor then had, but the perfected title accruing upon compliance with all the requirements of the laws regulating public grants. 46 Upon the same principle it would seem that a quit claim executed by one who had paid the purchase money in full for the premises, but had not received a conveyance, would operate to pass the legal title to his grantee when afterwards consummated by a conveyance from the original grantor. 47 Another exception to the rule that a quit claim does not create an estoppel, exists in those cases in which the quit claim expressly provides that neither the grantor, nor his assigns, will hereafter claim any right, title or interest in the premises conveyed. In such cases the grantor and his assigns are estopped to assert an after-acquired title to the estate. 48 It seems that covenants for title executed by a fiduciary will not estop the beneficiary from claiming an after-acquired estate. Thus, if a ward acquires title after a sale and conveyance by his 44 Pike v. Galvin, 29 Me. 183, overruling Fairbanks v. Williamson, 7 Gr. (Me.) 97; Ham v. Ham, 14 Me. 355; Partridge v. Patten, 33 Me. 483, 54 Am. Dec. 633; Loomia v. Pingree, 43 Me. 314; Harriman v. Gray, 49 Me. 538; Read v. Fogg, 60 Me. 479. 45 Trull v. Eastman, 3 Met. (Maes.) 121, 37 Am. Dec. 126, distinguishing between a quit claim and a covenant of non-claim on the ground that a quit claim, being a mere conveyance of such right as the grantor then has, does not include future interests, while a covenant of non-claim, i. e., that neither the grantor nor his heirs will thereafter claim the premises, expressly con- templates the after-acquired estate. Miller v. Ewing, 6 Gush. (Mass.) 34. 48 Welsh v. Dutton, 79 111. 465; Irvine v. Irvin'e, 9 Wall. (U. S.) 618. Johnson v. Johnson, 173 Ky. 701, 191 S. W. 672. a Garlick v. Railway Co., 67 Ohio St. 223, 6<5 N. E. Rep. 896. 600 MARKETABLE TITLE TO REAL ESTATE. guardian, it has boon held that such title will not enure to the benefit of the purchaser. 49 Xor will a title acquired by an execu- tion debtor after sale by the plaintiff enure to the benefit of the purchaser at such sale." 219. ESTOPPEL OF GRANTEE. By the common law of Eng- land a grantee who had accepted and taken possession of an estate was estopped to deny the title of his grantor or of any one claim- ing under him. 51 Thus, if a widow brought an action to recover dower against the grantee of her husband, the defendant was estopped to show that the husband had had no title to the land. This rule was followed in Xew York in several early decisions, 51 but they were afterwards overruled, 53 and it is settled now in that State, as well as in other States, 'that the grantee is not estopped to deny the title of his grantor, or of any one claiming under him. 54 If, however, the real title be already in the grantee, he will be estopped from suing on the covenants of his grantor by his accept- ance of the grant. 55 But while the grantee is not estopped to deny the title of the grantor by way of defense to an action for the pur- chase money, he is estopped in another sense, namely, that he cannot acquire the adverse title and set it up adversely to the * Young v. Lorain, 11 111. 624, 52 Am. Dec. 463. "Henderson v. Overton, 2 Yerg. (Tenn.) 393, 24 Am. Deo. 492; MVArtlmr v. Oliver, 60 Mich. 605; Gentry v. Callahan, 98 N. C. 448; Westheimer v. Reed, 15 Xeb. 662. Co. Utt. 352. a. "Bowne v. Potter, 17 Wend. (X. Y.) 164; Sherwood v. Yendenlmrgh, 2 Hill (X. Y.I, 307; Ostrhout v. Shoemaker, 3 Hill (N. Y.), 513. "AVerill v. Wilson, 4 Barb. (X. Y.) 180; Sparrow v. Kinsman,, 12 Barb. (X. Y.) 208, 1 Oomst. (X. Y.) 245; Finn v. Sleight, 8 .Barb. (X. Y.) 406. "Gaunt v. Wainman, 3 Ring. X. Cas. 69; Small v. Proctor, 15 Mas*. 405; Porter v. Sullivan, 7 Gray (Mass.), 441; Craig v. Lewis, 110 Mnss. 377; Fox v. Widgery, 4 Or. (Me.) 218; Foster v. Dwinel, 49 Me. 44; McLoery v. Mx-Ixwry, (55 Me. 173; Cutter v. Waddinpham, 33 Mb. 282; Patterson v. Dwinel. 113 111. 570; dec v. Seanmn, 21 Mich. 287. The holder under a tax title that has been perfected by the wtaitute of limitations is not eatnj.pi-d to *rt up that title again*t one from whom lie subsequently took a convey- ance of thfj premises, wince such conveyance wa without consideration and of no effect. Stewart v. William*, (Tex. Civ. App.) 167 S. W. 761. "Fitch v. Baldwin, 17 Johns. (X. Y.) 166; Beebe v. Swartwout, 3 Gil. (III.) 179; FumesH v. Williams. 11 111. 229; Smiley v. Fri*, 104 111. 416; Davenport v. Roberts, 171 111. App. 196. ESTOPPEL OF THE GRANTOR. 601 grantor, so as to prevent the latter from recovering the balance of the purchase money over and above that paid by the grantee to get in the title. 06 The rule that the purchaser is estopped to deny his vendor's title has been held not to apply where the vendor under- took to sell a part of the public domain to which he had no title. In such a case the purchaser, on ascertaining the vendor's want of title, may himself preempt the land and claim adversely there- under to his vendor. 57 Neither does the rule apply where the vendee was induced to purchase by reason of the fraudulent repre- sentation of the vendor. 58 Nor where the purchaser has been actually or constructively evicted. 09 The spirit and intent of the rule is that the purchaser shall not repudiate the contract while he remains in possession and retains its benefits. 60 And if the pur- chaser rejects title and possession from the vendor, and takes pos- session under what he supposes is the better title, he may set up such title in defense of an action of ejectment by the vendor. 61 220. RESUME OF PRINCIPLES. Mr. Rawle, in summing up the results of the American decisions as to the transfer of the after-acquired estate, observes that the doctrine rests upon a prin- ciple which is or at times may be salutary, being intended to carry out the real intention of the parties that a certain particular estate was to be conveyed and received, and where that intention appears the law will not suffer the grantor to defeat it. Such an intention 56 Ante, 168. Ellis v. Crossley, 119 Fed. 779. As to estoppel of the pur- chaser where the contract is still .executory, see ante, 202, and post, 279. Brown v. Thompson, 81 S. C. 3'SO, 62 S. E. 440; Eames v. Armstrong, 146 X. C. 1, 59 S. E. 165, 125 Am. St. Rep. 436. 57 Spier V. Laman, 27 Tex. 205 ; Wheeler v. Styles, 28 Tex. 240. For quali- fications of this doctrine see ante, 168, 202, post, 279; Butterfield v. Copper Co., 12 Ariz. 55, 95 Pac. 182. 58 Patterson v. Fisher, 8 Blackf. (Ind.) 237; Phenix v. Bijejich, 30 Xev. 257, 95 Pac. 351. 59 Thus, in Beall v. Davenport, 48 Ga. 165, 15 Am. Rep. 606, it was held that the purchaser, in ejectment by the vendor, might show that the land had been sold to a third person under execution against the vendor, and that he (itke purchaser) had attorned to isuch third person as tenant. This, it is apprehended, would amount to a constructive eviction. Strong v. Waddell, 56 Ala. 471; Bigelow Estoppel (5th ed.)', p. 545. <"> Finch v. Nobfe, 49 Wash. 578, 96 Pac. 3, 126 Am. St. Rep. 880. Nerhooth v. Altkouse, S Watts (Pa.), 427-, 34 Am. Dec. 480. 76 602 MARKETABLE TITLE TO REAL ESTATE. may be deduced either from averments, recitals, or the like, or from the presence of covenants for title; and it is immaterial what particular covenants there may be, so that they show the intention. But the intention is not necessarily deduced from the covenants, and may appear by other parts of the deed. In many cases, to prevent circuity of action, it may be held that the estate actually passes; but this should not be suffered to work injustice by depriv- ing the first grantee of his legal right of action, i. e., his option to sue for breach of covenant. And the doctrine may often apply when there is no right of action, but should never be applied against a purchaser without notice." These conclusions appear to be sound in principle and to be warranted by the decisions, except in so far as they would permit the covenantee, upon a breach of the covenant of seisin unaccompanied by disturbance of the pos- session, to practically rescind the executed contract and recover the purchase money as damages, though he had not suffered and could never, by reason of the after-acquired title, suffer actual damage from the breach of the covenant. In such a case an attempt has been made to show that upon reason and authority the covenantee must take the after-acquired title, not in lieu of damages, for there, can be no substantial damages when the cove- nantee has suffered no actual injury, but in satisfaction of the grantor's covenant, and as denial of the demand for rescission when the grantee is in the enjoyment and possession of everything that the covenant was intended to secure to him. 63 Covenants for Title (5th ed.), 264. "Ante, $ 215. CHAPTER XXII. REFORMATION OF THE CONVEYANCE. WHEN GRANTED AND WHEJT DENIED. General principles. 221. Mistake of fact. 222. Mistake of law. 223. Mutuality of mistake. Fraud. 224. Mistakes resulting from negligence. 225. Nature and degree of evidence required. 226. Laches in application for relief. 227. Defective execution of statutory power. 228. IN FAVOR OF AND AGAINST WHOM RELIEF MAY BE. HAD. In general. 229. In favor of grantor. 230. Purchasers and creditors. 231. Volunteers. 232. Married women. 233. 221. WHEN GRANTED AND WHEN DENIED. General prin- ciples. The reformation or correction of written contracts or con- veyances which, for some reason, fair to express the true intention of the parties, is one of the most familiar grounds of equitable jurisdiction. 1 We shall see, hereafter, that in certain cases of mistake when the contract has been executed* by the delivery and acceptance of a conveyance, the grantee is entitled to a rescission or abrogation of the contract, and to have back from the grantor whatever may have been paid or delivered to him in furtherance of the agreement. 2 But in such cases the remedy of the grantee in equity is not limited to a rescission of the contract. As a general rule he may elect to affirm the contract, and insist that a new con- veyance shall be executed, either by the defendant, or by an officer of the court acting on behalf of the defendant by decree of the court, which shall operate as a reformation or correction of the original deed, and effectuate the true intent of the original par- *1 Story Eq. Jur. p. 108, et seq.; 2 Pomeroy's Eq. Jur. 845; 2 Beach Mod. Eq. Jur. p. 609. An instructive summary of the conditions under which equity will reform a written contract, will be found in Humphreys v. Hurtt, 20 Hun (N, Y.), 398. 3 Post, ch. 35, Fraud and Mistake. [603] 60i MARKETABLE TITLE TO KEAL ESTATE. ties. 3 This, after all, is no more than specific performance of the contract ; the court goes back of the conveyance and ascertain- ing the real terms and subject-matter of the executory agreement between the vendor and the vendee, directs that a new deed be executed in conformity therewith. 4 The reformation is not to make a new agreement between the parties, but to establish and perpetuate the old one. 5 The deed may, of course, be reformed *by the original parties thereto or by their privies if sui juris and in no way incompetent to execute a new conveyance. 6 And it has been laid down as a general rule that a bill will not lie-to reform a deed unless a new deed, correcting the error or mistake complained of, has been pre- pared and tendered by the grantee to the grantor or other person who should execute the same and execution thereof has been refused, and that the bill should aver such tender and refusal. 7 But these cases have been disapproved and the better rule declared to be that the court shall retain the bill until the correction is made, taxing the costs against the complainant, if the bill was filed unnecessarily and without previoiis request in pais to correct the error. 8 Xo tender of an amended or corrected deed is necessary where the party from whom reformation is sought has refused to execute a new deed or denies the plaintiff's equity, or is incom- petent to execute the deed, nor, generally, wherever a tender of a corrected deed would be vain and useless. 9 Xeither does the rule apply in a suit to foreclose a mortage in which the reformation of the mortgage was merely incidental to the main object of the suit, that is, to compel the payment of the purchase money l>y foreclosure. 10 If, upon request, a party or privy to the deed 'See, generally, the cases and authorities cited throughout this chapter. 4 Dickinson v. Gfcnnoj? 27 Conn. 104; Adams v. Reed, (Utah) 40 Pac. Rep, 720, diet. Hoffman v. Kiri>y, 196 Cal. 26, 68 Pac. Rep. .T_M. \Vel*hbillig v. Drenhurt, 65 Ind. 94. Lavender v. Lee, 14 Ahu 688. v. Brown, 4 Ala. 622; Beck v. Simmons, 7 Ala. 71 -. Lamkin v. Reeae, 7 Ala. 170; Blade r. Stone, 33 Ala. 327; Heck v. Remka, 47 Md. 68; Jennings v. Krixtndine, 44 Mo ' Kuhhin* v. Battle I!..!!-* Co., 74 Ala. 499. R.l>hin v. Battl,- H,.,,-* Co., 74 Ala. 499. "AxtW v. Ch^ 83 Ind. 546. 605 refuses to correct a mistake therein by the execution of a new deed or release or quit claim, costs should be awarded against him. 11 So, also, if he pertinaciously and contrary to good faith resists an application to equity for reformation of the deed. 12 The court, it seems, will not reform a deed unless the pleadings contain a prayer for such relief. 13 It has been held, however, that the general prayer for " other and further relief " is sufficient for this purpose. 11 The reformation of a conveyance, so as to conform to the terms of a parol agreement for the sale of the premises conveyed, is not within the Statute of Frauds, and the reason is that a contrary rule would, in such a case, prevent any relief whatever. 15 Nor is it necessary to show such part performance of the parol contract as would take the case out of the Statute of Frauds. 16 The court will not reform a deed in favor of one party, without enforcing equities arising out of the transaction in favor of the other party. Therefore, where the grantee sought to reform a deed, for error in the description of the premises, and it appeared that the grantor had verbally reserved the right to occupy the 11 Hutson v. Furnas, 31 Iowa, 154. 12 Dod v. Paul, 43 K J. Eq. 302. "Gamble v. Daugherty, 71 Mo. 599. 14 Coe v. N. J. Mid. R. Co., 31 X. J. Eq. 105. 15 Adams Eq. (5th Am. ed.) 345 (171); Pom. Eq. Jur. 867; Noell v. Gill, 84 Ky. 241, 1 S. W. Rep. 423; Conaway v. Gore, 24 Kana. 389, the court, by BREWER, J., saying: " The 'argument is that the contract for the sale of the land was in parol ; that there is no allegation or proof of the de- livery of possession, the making of improvements, or any other matters which take a parol contract out of the Statute of Frauds; that the deed which was executed was a conveyance of other land, and, therefore, neither a conveyance nor a contract for the land in question. The argument is elaborated by counsel, and many authorities are cited. But thes'e authori- ties xun along the line of the doctrine, of specific performance, while the case at bar comes under the head of reformation of contracts. The difference between the two is marked and 'substantial. One aims to enforce a parol contract as though it were in writing, the other seeks simply to conform the written to the real contract. One would avoid the necessity of any writing, the 'other would simply correct the writing. The principles which control the one are essentially different from those which control the) other. * * It (reformation) is not the substitution of acts in pais for the written con- tract, but it is the making of the writing the expression of the real contract." "Morrison v. Collier, 79 Ind. 417. GOG MAKKKTABLE TITLE TO REAL ESTATE. premises, anil to be supported from the rents and profits thereof during the remainder of his life, the court, as a condition upon which the deed should be reformed, required the grantee to convey the premises to a tnistee for the use and benefit of the grantor for life. 17 The fact that the premises were, at the time of the execu tion of the deed, in the adverse possession of a stranger, does not affect the grantee's right to reformation. 18 If, by mistake, a deed do not convey the whole of the premises purchased, the remedy of the purchaser is by suit for reformation of the deed, and not an action on the grantor's covenant of warranty. 19 In Indiana it has been held that where, by reason of a misdescription of lands in a deed, a grantee does not obtain the legal title, and before dis- covery of the mistake, the lands are sold under execution against the grantee, the purchaser in possession acquires no title, either at law or in equity, and cannot maintain a suit to reform the deed. The reason given for this decision was that the grantee under the defective deed had only an equitable title or interest, and that such an interest being incapable of sale under execution, the pur- chaser acquired no title of any kind. 20 Mistakes which occur in the registration of deeds are to be corrected, not by changing the record, but by compelling the execution of a quit claim or release on the part of him who might take advantage of the mistake. 21 222. Mistakes of fact. The greater number of suits for the reformation of deeds are founded upon some mistake of fact, either in respect to the contents or to the consideration of the instrument to be reformed. A mistake of fact in an executed contract occurs: (1) Where the conveyance contains or omits some matter or thing which it was intended by the parties should not be so contained therein or omitted therefrom;* 2 as where the 11 Coil-man v. Colenmn, IMiil. Kq. (X. C.) 43. " Thompson v. Marital], 3fi Ala. 504, 76 Am. Deo. 328. "Connor T. Wells, 91 Ind. 107. "Hiatt v. Callaway, 7 B. Mn. (Ky.) 178. "Broadway v. Buxtnn, 43 C<>nn. 2S2. "I'arham v. Parham. (J Humph. (Tenn.) 2^7: Perkins v. Dickinson. 3 CSrnt. (Vti.t 33f>. In Kirk v. Xrtl. 1 M<-Arth. (I). C.) 116, a mistake of the ilr.ii: -m:iii in tirtiveying the whole rotate to the prairtee instead of one moiety, and tlio other moiety to another, wan corrected. So, wliere the draftsman REFORMATION OF THE CONVEYANCE. 607 scrivener omits from the deed some provision upon which the parties have agreed, 23 or employs language insufficient to effectuate the intent of the parties, 24 and they have executed the deed in ignorance of the omission. (2) Where the contents of the deed are as they were intended by the parties, but those contents them- selves are founded in ignorance and mistake of fact ; as where the parties, upon misinformation, insert a wrong description of the premises to be conveyed; or where a part of the premises was already the property of the grantee, both parties being ignorant of his title thereto. In all such cases the equity of the grantee to have the deed reformed so that it may speak the true intention of the parties is clear and undeniable. 25 In this respect convey- inserted the name of the wrong person as grantee. Bolianan v. Bohana-n, 3 111. App. 502. This class of cases will include those in which there are mere clerical errors in the description of the premises, such as the insertion of one number instead of another, as where a deed read " seven degrees and thirty- nine minutes " instead of " seventy degrees and thirty-nine minutes." Clay- pcole v. Houston, 12 Kans. 324. 23 Athey v. McHenry, 6 B. Mon. (Ky.) 50; Bouldin v. Wood, 96 Md. 332, 53 Atl. Rep. 911; Hebler v. Brown, 41 N. Y. Supp. 441. 24 Adams Eq. (5th Am. ed.) 343 (169). 25 Adams Eq. (5th Am. ed.) 339 (168); Moore v. Munn, 69 111. 591; Briegel v. Mull'er, 82 111. 257; Fullen v. Savings Bank, 14 R. I. 363; Fields v. Clayton, 117 Ala. 538, 23 So. Rep. 530; Winnipisseogee Lake Cotton Mfg. Co. v. Perley, 46 N". H. S3. Here a deed founded upon the erroneous com- putations of a surveyor was reformed. In First Nat. Bank v. Grough, 61 Ind. 147, it was isaid that the neglect of the parties to insert a proper de- scription of the premises in a mortgage was a mistake of law a statement deserving much consideration. Whether the want of a sufficient description is a mistake of law or a mistake of fact can be determined only, it would Seem, by the circumstances of each case and the nature of the mistake. If they are mutually mistaken in inserting wrong boundaries, that is clearly a mistake of fact. Tooley v. Chase,, (Oreg.) 37 Pac. Rep. 9'08. If they ad- visedly insert an insufficient description believing it to be sufficient, that would be a mistake of fact. And it is apprehended that if the deed were prepared by a third person and the parties executed it without adverting to the erroneous or insufficient description, so that the deed does not effectuate their purposes, that would lie a mistake of fact, and equity would reform the instrument. Instances in which equity has reformed a deed containing an erroneous description of the premises will be found in Dane v. Derber, 38 Wis. 216; Berry v. Wejbb, 77 Ala. 507; Bush v. Bush, 33 Kans. 556, 6 Pac. Rep. 794; Critchfield v. Kline, 39 Kans. 721, 18 Pac. Rep. 898; Skerrett v. Presbyterian Society, 41 Ohio St. 606; Christman v. Colbert, 33 Minn. 509, 24 N. W. Rep. 301 ; Kellogg v. Chapman, 30 Fed. Rep. 882 ; Sowler v. Day, 608 MAKKKTABLE TITLE TO REAL ESTATE. ances stand upon different grounds from wills, for while a latent ambiguity in a will is open to explanation by parol proof, nothing can be supplied to a will or expunged therefrom on the ground of mistake; for, as has been said, there can be no will without the statutory forms, and the disappointed intention of the testator has not these forms. 2 * But a patent ambiguity in a deed may be cor- rected or removed by a suit to reform the deed ; 27 and the author- ities to the effect that mistakes or ambiguities in a will cannot be corrected or explained, have no application whatever to the reformation of deeds. 28 The grantor cannot maintain a bill to reform his deed by insert- ing a reservation of certain rights in the premises, if it appears that such reservation was not omitted from the deed through fraud, accident or mistake, but merely in consequence of his reliance upon the agreement of the purchaser to carry out the original contract," as where there was an easement in the granted premises unknown to the parties, and the grantor had covenanted against the incumbrances created by himself only. 30 If by mis- take covenants of warranty to which a purchaser is entitled, be omitted from his deed, equity will cause them to be insert eil. Hut the mere fact that the title turns out to be bad will not justify a court of equity in reforming a conveyance without warranty, so as to include a covenant of general warranty, when the pur- chaser was fully aware of the character of the instrument he accepted, and there was no mistake on the part of any one as to its contents. If the instrument perfectly represents the under- standing of the parties, it will not be reformed merely becausr one of the parties might have exacted a different instrument, if he had known of facts making it desirable for him t-> do so. sl 58 Iowa, 252. 12 X. \V. Rep. 27; Roberts v. Taliaferrn, 7 Iowa, 110; Hileman v. NYrivht. !> Tnd. 126. "Adam- K.|. (.'.tli Am. e. 247; Jennings v. Urm-mlinc. 11 >!< Rid.l.in r, 76 Ind. 3S1. "Andrew v. Spurr, 8 Allen (Minus.), 412. In this (*o tin- original <-<>ii- trarl. which wa oral, reserved to the jrrantor the rijrht i<> nit and n > iin>v certain timlxr from the prrminrti. After the deed was executed tin- repudiated this reservation. "Lewenberf; v. Johnson. 224 Mans. 207. 112 N. E. 870. "Whittemore v. Farrinvton, 76 X. Y. ">_'. REFORMATION OF THE CONVEYANCE. 609 223. Mistake of law. A mistake of law occurs where the contents of the deed are such as they were intended to be, but through misconstruction or ignorance of the law those contents do not embody the real intention of the parties, nor amount to such a conveyance as the grantee might have insisted upon in the first instance, 32 for example, where the purchaser ignorantly accepts a deed executed by an attorney in fact in his own name instead of that of the principal. 33 An erroneous opinion as to the legal effect and operation of a conveyance, developed by events subsequent to its execution, is a mistake of law, and, it has been held, furnishes no ground for reformation of the deed. 34 A number of cases may be found in which it is declared that a mistake of law is no ground upon which a deed may be reformed in equity. 35 They hold that no equity arises when the court is not asked to make the deed what the parties intended, but to make it that which they did not intend, but would have intended if they had been better advised. This, however, is a disputed question, and many cases, perhaps a preponderance of authority, adopt the contrary view. 36 Where it M Burt v. Wilson, 28 Cal. 632, 87 Am. Dec. 142; Bradford v. Bradford, 54 N. H. 463. M Personneau v. Blakely, 14 111. 15. ** Kelly v. Turner, 74 Ala. 513>. This was a case in which a married woman sought to have a conveyance >to herself reformed so as 1 to show that the con- sideration thereof was her separate statutory estate, consisting of money inherited from her fatlher, and tihereby protect the property conveyed from the creditors of her husband. The application was refused. "Allen v. Anderson, 44 Ind. 395; Baldwin v. Kerlin, 46 Ind. 42:6; Barnes v. Bartlett, 47 Indl 98; Nicholson v. Caress, 59 Ind. 39; Easter v. Severin, 78 Ind. 540. "Gale v. Morris, 29 N. J. Eq. 222; Warner v. Siseon, 29 N. J. Eq. 141; Dupre v. Thompson, 4 Barb. (N. Y.) 279; Alexander v. Newton, 2 Grat. (Va.) 266; Allen v. Elder, 76 Ga. 674; Wyhe v. Greene, 16 Ga. 49; Brew- ton v. Smith, 28 Ga. 442; Brock v. O'Dell, (S. C.) 21 S. E. Rep. 976; Canedy v. Marcy, 131 Gray (Mass.), 373; Crum v. Loud, 23 Iowa, 219'; Nowlin v. Pyne, 47 Iowa, 293; Baker v. Massey, 50 Iowa, 399; Reed v. Root, 59 Iowa, 359; Stone v. Hale, 17 Ala. 557, 52 Am. Dec. 185. In McDonnell v. Milholland, 48 Md. 540, it seems to have 'been admitted that upon satisfactory evidence of mistake in- conveying premises to the grantees as joint tenants instead of tenants in common, the error would be relieved against. Such a mistake would appear to be necessarily a mistake of law, as it must be pre- sumed that the parties were aware of the way in which the deed was drawn, but misconstrued its effect. In Whitehead v. Brown, 18 Ala. 682, a deed was 77 610 MARKETABLE TITLE TO REAL ESTATE. is admitted that an instrument executed in pursuance of a prior agreement by which both parties meant to abide, is inconsistent with the purpose for which it was designed, or that by reason of some mistake of both parties, it fails to express their intention, a court of equity will correct it, although the mistake be one of law. 87 These cases, it is believed, establish the better doctrine. Most of the decisions which declare that a deed may not be re- formed where the mistake is one of law, are founded upon author- ities which maintain that such a mistake is no ground upon which to rescind an executed contract. It may be doubted whether these authorities are in point. Rescission is the annulment or abro- gation of the contract, involving the risk of inability to place the parties in statu quo, in itself a most serious consequence, while reformation of the conveyance does not touch the contract nor displace either party, but simply makes effectual that which their ignorance or mistake rendered abortive. If a purchaser buys a fee simple, a fact easily shown by the purchase price and other surrounding circumstances, and accepts a conveyance which the parties deem sufficient to convey the fee, but which is in fact insufficient for that purpose, an unconscionable wrong would be inflicted upon the purchaser by refusing to reform the deed and by permitting the vendor to reap the benefits of the mistake. The court merely enforces the original agreement between the parties when it reforms a deed, and it would seem inequitable to deprive either party of that right, merely because their own efforts to com- plete the contract had, from mistake or ignorance of law in the selection and preparation of the means, proven ineffectual. It is not always easy to determine whether the insufficiency of the conveyance complained of is due to a mistake of fact or to a mistake of law. If the parties agree upon the contents and instruct a draftsman to draw a conveyance in accordance with such agreement, that is, give specific directions as to the contents of the deed, and the draftsman should omit any matter upon reformed on the ffroimd of a mistake of I ho partie8 in tuipposinp that it was auftVient lo create in the jjranUv Mich an i .-talc an would he free from lia- bility for the debt* of her husband. "Kornetfay v. Everett. 99 K. C. 30, 5 S. E. Rep. 418; Beiuon v. Markol. (Minn.) 36 Alb. L. J. 44. REFORMATION OF THE CONVEYANCE. 611 which they had agreed or insert any matter upon which they had not agreed, and they should execute the deed in ignorance of such omission on insertion, that, it is clear, would be a mistake of fact. 38 On the other hand, if the parties should debate as to whether certain matter should be inserted in or omitted from the deed, and should err in their conclusions, that would plainly be a mis- take of law. 39 Lastly, if the parties should neither give directions as to the contents of the deed nor discuss its provisions before execution and acceptance, and the deed should be not such as the purchaser had a right to require as if it should lack a seal, or proper words of conveyance, or should omit the name of the grantee this, too, it seems, would be treated as a mistake of fact, that is, the omission of these requisites would be attributed to accident and oversight and not to an impression of the parties that the deed was sufficient without them. 40 There is, therefore, "Adams Eq. (5th Am. ed.) 342 (169). A mistake in the description of land intended to be conveyed ia a mistake of fact and not of law. McOasland v. Life Ins. Co., 108 Ind. 130, 9 N. E. Rep. 119. 39 Adams Eq. (5th Am. ed.) 344 (170). In other words, if it appear that the instrument contained the precise language the parties intended it should contain, the mistake, if any, is a mistake of law. Easter v. Severirr, 78 Ind. 540. 49 See Canedy v. Marcy, 13 Gray (Mass.), 373, where it was said that if a deed has been imperfectly drawn, and the parties have been misled by a mis- placed confidence in the skill of the draftsman, it can hardly be said to be a mistake of law, but is rather a mistake of fact. To this class may be re- ferred those cases which hold that a deed may be reformed by inserting the word " heirs " omitted from the granting clause. Springs v. Harven, 3 Jones Eq. (N". C.) 96; Rutledge v. Smitih, 1 Busb. Eq. (X. C.) 283; Wright v. Delafield, 23> Barb. (N. Y.) 498; Wanner v. Sisson, 29 N. J. Eq. 141; Coe v. X. J. Midland R. Co., 31 N. J. Eq. 28. But stee Nicholson v. Caress, 59 Ind. 39, where it was said that if the parties execute a deed in ignorance that it does not contain the word "heirs" that is a mistake of fact; ver v. Dougherty, 65 Ind. 463; Ramsey v. Smith, 32 N. J. Eq. 28. 49 Murray v. Sells, 53 Ga. 257. In this case Sells sold his homestead and purchased a property from Rondeau, who had only an equitable title, the legal title being in Orme. Sells agreed with Rondeau that he (Rondeau) 614 MARKETABLE TITLE TO REAL ESTATE. Xor docs the rule apply where the party against whom relief is sought fraudulently permitted the other party to act in ignorance of the mistake. 50 If it appear that the mistake was known to one of the parties, who, with knowledge of the ignorance of the other, nevertheless kept silent when he should have spoken, the party having knowledge will be estopped to defeat a reformation by alleging that he knew that the instrument was different from the agreement and that the mistake was not mutual. 51 Xor in such case will the rights of the complainant be affected by the fact that the fraud of the other party might have been discovered by the exercise of ordinary care. 02 Therefore, where the grantor inserts in his deed a provision by which the purchaser is made to assume the payment of an incumbrance on the premises, and then induces the purchaser to accept the deed without disclosing to him the existence of such provision, equity will reform the deed. 53 But mere ignorance of the contents of a deed from failure to read it, there being no pretense of mutual mistake, is no ground upon which to reform the deed, unless it appear that fraud was practiced upon the complainant by one occupying a relation of confidence toward him. 54 225. Mistakes resulting from negligence. It has been held that a court of equity will not reform a description in a deed, if the misdescription was the result, not of mistake of the parties, procure a conveyance of the property to Sells' wife and child, hut i. through ignorance, inadvertence or mistake, procured a conveyance from Orme to Sells' wife alone omitting the child. Here there was no mi*- take on the part of the grantor, Orme, for the d<>ed was executed by him in Htrict punnianee of the directions* he had received; but there being a mistake an Wtween Rondeau and the otht-r parties in interest, the deed was reformed m> a* to express their true intent. "Dane v. Derber, 28 Wis. 216; James v. Cutler, 54 W. 172, 10 N'. W. Rpp. 147: I)e Jarnatt v. Cooper, 59 CaK 703; Without* v. Schaack. 57 How. Pr. (N. Y.) 310; Winana v. Huyck, 71 Iowa, 459, 32 N. W. Rep. 422; B*r- g-n v. Kbey. 8fl III. 269. Here, after instructions had been given the drafts- man by the parties, the grantor went to him and gave him other instructions. M R/ell v. Row.ell, 109 Ind. 354, 10 X. E. Rep. 114. "HitchiiiH v. Pettingill, 58 N. H. 3; Monroe v. Skelton. 3.-*t ii ut inp the word " hereinbefore " for " hereafter," the context showing that the former word was intended. w Michael v. Tinsley, 89 Mo. 442. "Story Eq. Jur. ft 152; Adams Eq. (5th Am, ed.) 345 (171). Sawyer v. Hovcy, 3 Alh-n (Mass.), 331, 81 Am. Dec. 59; Nicoll v. Mason, 49 111. 358; Hamlnn v. Sullivant, 11 HI. A pp. 423: Wells v. Ogden, 30 Win. 637; Bates v. Bate*, 56 Mich. 405, 23 X. W. Rep. 63; Jarrett v. Jonrett, 27 W. Va. 743; Strayn v. Stone. 47 Iowa, 333. The evidence of mistake rmmt be mich M will oven-nine the Mnmg preimmption in favor of written instruments. Rpnrillard r. Prencott, 8 Orrg. 37. Miller v. Rhuman, 62 Ga. 332; Willis v. Sanders, 51 N. Y. Super. Ct. 384; McTuckcr v. Taggart, 2f) Iowa, 478; St. Anthony's Falls Water Power Co. v. Merriman, 35 Minn. 42, 27 N. W. Rep. 199. REFORMATION OF THE CONVEYANCE. 617 than that provided for in the contract, does not, of course, neces- sarily establish a case for reformation of the deed, for in such a case the deed is looked upon as the last expression of the intent of the parties, and the presumption is that the change was made by mutual agreement. There must be clear and positive evidence to show that the change was the result of fraud and mistake, to justify a reformation of the deed. 64 227. Laches in application for relief. The general rule is that a party seeking relief in equity on the ground of mistake must act promptly. 65 The reason is that delay in such cases increases the difficulty of placing the parties in statu quo, or may affect the rights of third parties. There has been a disposition in some cases to extend this rule to suits for the reformation of deeds, 66 but the better opinion seems to be that mere lapse of time is no bar to such a suit where possession has all the while been held according to the real intention of the parties, and the condition of the defend- ant has not been made worse by the delay, and the rights of no third party have intervened. 67 Nor in any event will laches be im- puted to the complainant until after discovery of the mistake. 68 Nor where it appears that the complainant has made repeated efforts to have the mistake corrected without a law suit. 69 A mis- take occurred in a deed in 1816. The grantee took possession and remained in possession until 1848, when one who had suc- ceeded to the rights of the grantor in some way obtained pos- session. The grantee filed a bill in 1851 to correct the mistake, 64 Whitney v. Smith, 33 Minn. 124, 22 N. W. Rep. 181; Dunham v. New Britain, 55 Conn. 378. 65 Willard Eq. Jur. 69 ; Story Eq. Jur. 152(X 66 Sable v. Maloney, 48 Wis. 331, 4 N. W. Rep. 479. Here fifteen years had elapsed after discovery of the mistake before an application for reformation was made. Farley v. Bryant, 32 Me. 474, where it was said that lapse of time tended to show either that there was no mistake, or that the mistake, if any, had been waived. 67 Canedy v. Marcy, 13 Gray (Mlass.), 373; Mills v. Lockwood, 42 111. Ill; First Nat. Bank v. Wentworth, 28 Kans. 183; Kirk v. Zell, 1 McArthur (D. C.), 116. In Farley v. Bryant, 32i Me. 474,, it was said that lapse of time would be immaterial to the right of reformation, if the premises were unimproved lands. 48 Stone v. Hale, 17 Ala. 557, 52 Am. Dec. 185. 80 Thompson v. Marshall, 30 Ala. 504, 76 Am. Dec. 328. 78 618 MARKETABLE TITLE TO REAL ESTATE. and it was held that he was not precluded from relief by the delav. 70 The case tends to establish the principle that laches is not imputable to the grantee until after some adverse claim to the premises has been made. 228. Defective execution of statutory power. It seems that equity will not, as a general rule, aid a defective execution of a power, that is, will not supply any matter for the want of which the legislature declares a deed void, since the effect would be to make nugatory the legislative enactment. 71 But this rule has no application where an officer, selling and conveying under a statute, complies with all the provisions of the statute, and merely misde- scribes the land in the conveyance which he executes in pursuance of the sale. In such a case equity has jurisdiction to decree the execution of a new deed correcting the mistake. 7 * 2 2 9. IN FAVOR OF AND AGAINST WHOM BELIEF MAY BE HAD. IN GENERAL. The right to reformation of a deed on the ground of mistake is not confined to the immediate parties to the instrument, but extends to all persons who stand in the place of such parties and who are injured by the mistake. 73 To maintain the action the complainant must be either a party or a privy to the deed. 7 * Suits for the reformation of conveyances on the ground of mistake have been frequently brought by remote assignees of the "Farmers & Mech. Bank v. Detroit, 12 Mich. 445. "1 Story Eq. Jur. 117. See infra, this chapter, 5 233, "Married Women." "Houx v. Bates County, 81 Mo, 391. "See, generally, cases cited below. Pomeroy Eq. Juris. 5 845, 870, 1376; Mills v. Lockwood, 42 III 112. "Story Eq. Jur. 8 165. Willis v. Sanders, 51 X. Y. Sup. CU 380, where it was also held that the mere fact that a person is a grantee of one to whom a d-ed was made does not necessarily fo connect him with the contract as to entitle him to maintain a suit to reform the deed. The complainant should not neglect to aver and prove that he holds under the doel which he seeks to rvform. In Ballentine v. Clark, 38 Mich. 305, the court said: "The testimony entirely fails to trace title into complainant; and, an thin in e*wntinl to hie recovery, he must fail on this record. Xone of the drill, in iin- chain of title appear. It seems to have been taken for granted that the only proof required was the identification of the premises dwcrilxvl in the Mil. Hut unleH complainant shows that he holds under the deed sought to be reformed lie makes no showing of equities." REFORMATION OF THE CONVEYANCE. 619 original grantee. 73 But where a judicial sale intervened between the original grantee and the remote grantee it was held that the deed in which there was an erroneous description could not be reformed, since the effect would 1 be to give to the plaintiff land which the court had not directed to be sold. 76 Nor can a grantee, immediate or remote, compel a reformation of the deed so long as he is in default in the payment of any part of the purchase money. 77 He who asks equity must do equity. Reformation of the conveyance is a species of specific performance, and specific performance by the grantor could not be compelled so long as any part of the purchase money remained unpaid. 230. Reformation in favor of grantor. Reformation of deeds 75 Instances may be found in Taber v. Shattuck, 55 Mich. 370, 21 N. W. Rep. 371; Bradshaw v. Atkins., 110 111. 323; Crippen v. Baumes, 15 Hun (N. Y.), 136; Gerdes v. Moody, 41 Oal. 335; Blackburn v. Randolph, 33 Ark. 119. In May v. Adams, 58 Vt. 74, 3 Atl. Rep. 187, the suit was be- tween grantees of the original grantor and 1 grantee respectively. "Rogers v. Abbott, 37 Ind. 138. No authorities were cited to this propo- sition, and the grounds upon which it rests are by no means clear. Land had been erroneously described by Conley in his deed to Abbott as the S. E. instead of the X. E. quarter. This error was perpetrated through several mesne conveyances, including a sheriff's deed, until the land came to the plaintiff, possession of the N. E. quarter passing with all the deeds. Mean- while Abbott, discovering the error, procured Conley to execute a deed of the N. E. quarter to his (Abbott's) son, who thereupon claimed the land in plaintiff's possession. Plaintiff then brought an action to reform the orig- inal deed from Conley, and the court held as stated in the text, intimating, however, that the plaintiff was not without a remedy of some kind. See, also, Rice V. Poynton, 15 Kans. 263, and Keepfer v. Force, 86 Ind. 81, Where a mistake in the description of mortgaged 1 lands is carried into the decree of foreclosure it may be corrected by reforming 'and reforeclosing the mortgage. McCasland v. Life Ins. Co., 108 Ind. 130. In Thomas v. Dockins, 75 Ga. 347, a mistake in a sheriff's deed was corrected in favor of a subsequent grantee as against the execution defendant. And in Parker v. Starr, 21 Neb. 680; 33' N. W. R!ep. 424, a deed under a judicial sale was reformed at the instance of a remote grantee. In Mlartin v. Dollar, 32 Ala, 422, it was hold that a sheriff's deed will not be reformed for error in the description of the premises, if the sale itself is a nullity, as having been made under a void judgment. A mistake^ in the description of mortgaged premises may be re- formed, even after foreclosure of the mortgage. Congers v. Mericles, 75 Ind. 443. Davenport v. Scovil, ft Ohio St. 459. A court of equity has power to correct errors in a sheriff 's deed. Bradshaw v. Atkins, 110 111. 323; Gil- breath v. Dilday, 152 111. 207; 38 N. E, Rep. 572. T7 McFadden v. Rogers, 70 Mo. 421; Conaway v. Gore, 21 Kans. 725. G20 MARKETABLE TITLE TO REAL ESTATE. on the ground of mistake will of course be decreed in favor of the grantor as well as the grantee if the mistake be clearly estab- lished, as where the deed includes lands not purchased by the grantee and not intended to be conveyed. 78 But if the existence of the mistake is denied, the position of the grantor becomes different in view of the maxim verba chartarum fortius accipiuntur contra proferentem; the words of a deed shall be taken most stroiurly against him who employs them. It has also been held that the grantor will not be entitled to relief if a wrong description inserted in his deed was the result of his own gross negligence. 79 Nor will the court reform a deed, absolute on its face, by inserting a con- dition therein, at the suit of the grantor. 80 Xor can a mistake as to the quantity of land conveyed be corrected, on his behalf, if, after discovery of the mistake, he receives payment of the purchase money for the whole land and surrenders possession to the grantee. 81 Nor where he insists upon the payment of the purchase money while seeking relief on the ground of the mistake. 82 And it has been intimated that a grantor conveying all of his interest is not entitled to relief on the ground that such interest was greater than both parties supposed it to be. 88 Against whom reformation will be decreed. A deed will be re- formed in a case of mistake, not only as against the original irnuitee, but as against all who claim under, or are in privity with him, such ns heirs, devisees, voluntary grantees, judgment crrd- "Bush v. Hicks. 60 X. Y. 208; Furfis v. Treat, 41 Wig. 404; Damm v. Moors. 4 Mich. 510; Wiloox v. Lucae, 121 Mass. 21; Hutson v. Pumas, 31 Iowa, l. r >4: Burr v. HnMiinson. fil Mr. . r 14; Pugh v. Brittain, 2 Dev. Eq. (N. C.) 34; Cooke V. Hushnnd, 11 M<1. 402. When- lands not sold under a decree are l reformwl, as against the grantor or his heirs. Stile- v. Winder. 35 Ohio St. 555. w lx'\\i- v. Ixwifl, 5 Orejj. 160. -dark v. Drake. ,7 Pinn.-y (Win.), 22; Law v. Hydo, .Ifl Wi-. M*j MilN r. Seminary. 47 Wi*. 35-1 ; i N. \V. Ry inserting in it a provision that the dvd should lie void if the prejnine* ohould ceaae to he u*ed as a site for a seminary. "Witll-i-ker v. Watt>r-<. ! T.-\ 470; (i S. W. Hep. 788. " U rr v. St-.i^u-n. IS Minn. -><\. "Fly v. nrookH. (54 Ind. ."(). Hut ^M- Baker v. Ma**ey. 30 Iowa. 31>!. win n- it WR- hpH tluit if the dii-d cinlrai' an inti-ivst of which llu 1 grantor was ignorant, he will be entith-d' t.. reformation. REFORMATION OF THE CONVEYANCE. 621 itors and purchasers with notice of the mistake. 84 The person or persons whose duty it is to reform the deed, or who will be affected by the reformation, should always be made parties defendant to the suit. 85 But it does not follow that it is necessary in all cases to make the grantor a defendant; it frequently happens that he stands indifferent, for example, where the deed is made in pur- suance of directions given by one who had the equitable title only, and who sold his bargain to the person who became the grantee. In such a case it is not necessary to make the grantor a party, for his interests are in no way affected, and the court may appoint a commissioner to execute the reformed deed. 86 A remote grantee who holds under a deed without warranty, need not make his immediate grantor a party to his suit for reformation. 87 If, how- ever, the plaintiff holds under mesne conveyances with warranty, it has been held that he must make the grantees parties. 88 Where the grantor conveys to two purchasers, but makes a mistake as to the interest which each is to receive, he is not a necessary party to a bill to correct the mistake. 89 231. Purchasers and creditors. If the vendor should sell lot A, but by mistake should convey to the purchaser lot B, and after- wards a third person should purchase lot A from the vendor and take a conveyance thereof without notice of the mistake, the deed to the first purchaser could not be reformed as against the second purchaser. 90 Neither could such a deed be reformed as against 84 Adams Eq. (5th Am. ed.) 340 (169), n. Grayson v. Weddle, 80 Mo. 39. 65 Goodman v. Randall, 44 Conn. 321; Bullock v. Whipp, 15 R. I. 195; 2 Atl. Rep. 309, obiter. 88 Baker v. Pyatt, 108 Ind. 61; 9 N". E. Rep. 112, a case in which a father, desiring to convey his whole estate to his sons, executed a deed to each, but one of the deeds failed to take effect because of a mistake in the description. The grantee in this deed was held entitled to maintain an action to reform his deed against one of the other sons who was in possession of the land in- tended to be conveyed to the plaintiff. See, also, Roszell v. Roszell, 105 Ind. 77; 4 N. E. Rep. 423. 87 Farmers & Mech. Bank v. Detroit, 12 Mich. 445. 6S Davis v. Rogers, 33 Me. 222. -""Briegel v. MIoehler, 82 111. 257. 90 Story Eq. Jur. 165; Adams Eq. (5th Am. ed.) 340 (169), n. Berry v. Lowell. 72 Ala. 14; Ruppert v. Haske, 5 Mackey (D. C.), 262; Boardman v. Taylor, 66 Ga. 638; Kilpatrick v. Stozier, 67 Ga. 247; First Nat. Bank v. Gough, 61 Ind. 147; Hewitt v. Powers, 84 Ind. 295; Farley v. Bryant, 32 622 MARKETABLE TITLE TO REAL ESTATE. judgment creditors of the vendor, in those States in which judgment creditors are protected by the registry acts. 91 But as against a subsequent purchaser, and, it is apprehended, a creditor of the grantor, with notice of the mistake, such deed might always be reformed in equity, upon the same principle that one pur- chasing with notice of an equitable estate in the premises in favor of a third person, may, himself, be compelled to perform the con- tract of the vendor. 92 Possession of the premisjes in respect to Me. 474; Whitman v. Westman, 30 Me. 285; Dart v. Barbbur. 32 Mich. 267; Wilson v. King, 27 N. J. Eq. 374; Willis v. Saunders, 51 X. Y. Super. Ct. 38-1; Lally v. Holland, 1 Swan (Tenn.), 396. Whether an execution creditor who buys in 4he realty of the debtor at a sale under the execution is a pur- chaser for value without notice, and entitled to object to the reformation of a prior deed, which, when reformed, will embrace the purchased premises, qiKrref Bailey v. Timberlnke, 74 lAlo. 221. In Carver v. Lasahrtte, 57 Wi. 232; 15 X. W. Rep. 162, a deed was reformed as against a purchaser under an execution against the grantor. "Freeman on Judgments, 357, 3-90. Goodbar v. Dunn, 61 Miss. 618; Martin v. Nixon, 92 Ma 26; 4 S. W. Rep. 503; Galway v. M. 50. "Dayton v. Citizens' Nat. Bank, 11 111. App. 501. 9S Davis v. Rogers, 33 Me, 522. 99 First Nat. Bank v. Wentworth, 28 Kans. 183. 624 MARKETABLE TITLE TO REAL ESTATE. 232. Volunteers. A court of equity will not decree specific performance of a voluntary contract to convey lands. For the same reasxm, it will not interfere to correct a mistake in a volun- tary conveyance of lands. Where such a deed fails to take effect, the title remains in the grantor, and he may make what disposi- tion, of the premises he chooses. 97 Therefore, the court has refused to insert in a voluntary deed the word " heirs," necessary to create an estate of inheritance, and omitted by mistake of the drafts* man. 98 But this rule does not apply where the controversy is between those claiming under the deed, the grantor standing in- different. 99 Nor where the grantee has taken possession-, made valuable improvements and executed a mortgage on* the premises, and the application for correction of the deed is made by the mortgagee. 1 Deeds made in consideration of " services rendered and love and affection " 8 and " in consideration of one dollar and natural love and affection " s have been held not voluntary within the rule denying the reformation of voluntary conveyances. A voluntary deed may, of course, be reformed at the suit of the grantor in a case of mistake. 4 233. Married women. A court of equity will not reform the deed- of a married woman when the mistake complained of con- sists in the omission of some statutory requisite, 5 for that were in effect to decree specific performance against a married woman, and to make valid that which the statute declares shall be invalid. This is one of the principal applications of the rule that equity " 2 Story Eq. Jur. ft 793; Adams Eq. (5th Am. ed.) 342 (169-), note. Preston v. Williams, 81" 111. 176; Else v. Kennedy, 67 Iowa, 376; 25 N. W. Rep. 290; Dickinson v. Glenney, 27 Conn. 104; Froman v. Froman, 13 Ind. 317; Eaton v. Eaton, 15 Win. 259; Smith v. Wood, 12 Wia. 382; Dupre v. Thompson, 4 Barb. (N 1 . Y.) 279. Powell v. Morrissey, 98 N. C. 420; 4 S. E. Rep. 185. " Adah- v. McDonald, 42 Ga. 506. Cumminga v. Freer, 26 Mich. 12ft. Baker v. Pyatt, 108 Ind. 61; 9 N. E. Rep. 112. Mason v. Moulder, 58 Ind. 1. But see Powell v. Morrisuey, 96 N. C. 426; 4 S. E. Rep. 185, Mit.-hpii v . Mitchell, 40 Ga. 11; Crockett v. Crockett, 73 Ga. 647. Martin v. Dwelly, 6 Wend. (N. Y.) ; 21 Am. Dec. 245; Dickinson v. Glenney, 27 Conn. 104; Holland v. Moon, 39 Ark. 120; Grapengether v. Ferjerwy, 9 Iowa, 163; 74 Am. Dec. 336; Hamar v. Madskar, 60 Ind. 413. REFORMATION OF THE CONVEYANCE. 625 will not aid the defective execution of a statutory power. 6 But a mistake in a mere matter of description in a married woman's deed may always be reformed, 7 and confessed clerical errors therein will be corrected. 8 And mistakes of every kind in her deed will be corrected in those States in which statutes exist, placing the contracts of married women- upon the same footing as contracts of femmes sole. 9 In California, under a statute allowing the amendment of defective certificates of acknowledgment, the court permitted a defective certificate of acknowledgment by a married woman to be reformed. 10 Williams v. Cudd, 26 So. Car. 213; 2 S. E. Rep. 14. 7 Gardner v. Moore, 75 Ala. 394; 51 Am. Rep. 454; Carper v. Munger, 62 Ind. 481; Wilson v. Stewart, 63 Ind. 294; Styles v. Robbing, 76 Ind. 547; Jones v. Sweet, 77 Ind. 187; Hewitt v. Powers, 84 Ind. 295. 8 Savings & Loan Assn. v. Meeks:, 66 Gal. 371; 5 Pac. Rep. 624. 9 Bradshaw v. Atkins, 110 111. 323; Christman v. Colbert, 33 Minn. 509; 24 N. W. Rep. 301. 10 Hutchinson v. Ainsworth, 631 Cal. 286. Without the aid of a statute, defects in a certificate of acknowledgment, whether of a married woman or any other person, cannot be supplied. Ante, 41. 79 BOOK II. OF~ REMEDIES IN IHSAFFIRMANCE OR RESCISSION OF THE CON- TRACT OF SALE. CHAPTER XXIII. OF RESCISSION BY ACT OF THE PARTIES. GENERAL PRINCIPLES. 234. RESCISSION BY ONE PARTY ONLY. 235. STATUTE OF FRAUDS. 236. 234. GENERAL PRINCIPLES. We have already seen that upon the discovery of a defect in the title to real estate the steps to be taken by the purchaser depend upon the stage that the transac- tion has reached, upon the express agreements, if any, which the parties have entered into respecting the property, upon those which the law implies from their acts and conduct, and from the transac- tion itself, and upon the nature of the defect in respect of which relief is claimed. In some instances the purchaser, because of the defect, may rescind and abandon the contract, or affirm it and demand to be compensated in damages for the breach ; in some he may seek his remedy in a court of law, or in a court of equity, at his election, while in others no such right of election exists, and he must proceed in the one court or the other, according to the nature of his case. But whatever course he may take amounts of neces- sity either to a rescission or an affirmance of the contract ; and, as these diametrically opposite attitudes of the purchaser in respect to the contract constitute the most natural and convenient sub- division under which the rights of purchasers of defective titles to real estate may be considered, they have been adopted as main features in the analysis and classification of this work. The t going pages having been devoted to the examination of remedies in affirmance of the contract, and their incidents, we pass now to tin consideration of those in which the purchaser elects to disaffirm, abandon or rescind the contract. OF RESCISSION BY ACT OF THE PARTIES. 627 Rescission is the abrogation or annulment of a contract. 1 The most common legal use of the term is to designate the jurisdiction which equity assumes in the cancellation of contracts; but rescis- sion may, of course, be accomplished by act of the parties without resort to judicial proceedings. The parties may, at any time before conveyance, rescind the contract by consent, 2 which consent may be express or implied from the acquiescence of the one party in the acts of the other. 3 But, in order to bind the one party by his presumed acquiescence in the acts of the other, it must clearly appear that he had notice of the intent of the other to rescind, 4 or knowledge of such acts on the part of the latter as constituted in themselves a rescission. 5 The proper course to be 1 The several ways jn which the rescission of an executory contract may occur have been thus summarized by Mr. Fry in (his treatise on Specific Per- formance, 998: "(1) A simple agreement between the parties to rescind the contract. (2) An agreement between the parties to new terms, which put an end to the terms of the old contract. (3) An agreement between the original parties and a third person by which the third person takes the place of one of the original contractors. (4) An exercise of a power to rescind reserved by the contract to one or both of the contractors. (5) An exerci.se of the right to rescind which results to the injured party from fraud or mistake in relation to the contract. (6) An exercise of the right to rescind which results to one party from the other party's absolute refusal to perform the contract or unreasonable delay in its performance. (7) An exercise of the right to rescind which results to one party from the other party's having made performance impossible." Surrender of possession by the purchaser and acceptance thereof by the vendor do not necessarily amount to a rescission of the contract by the parties, so as to preclude the vendor from asserting rights under the contract against the purchaser. Pioneer Min. Co. v. Price, 189 Mo. App. 30; 176 S. W. 474. 2 Fry Specific Perf. 998; 2 Warvelle Vend. 834, 947; Boyce v. McCul- lough, 3 Watts & S. (Pa.) 420; Lauer v. Lee, 42 Pa. St. 165. "Carter v. Fox, 11 Cal. App. 67; 103 Pac. 910; Tague v. McColm, 145 Iowa, 179; 123 N. W. 960. Demand of possession by the vendor and sur- render of possession by the vendee, when the latter refuses to pay the pur- chase-money because of want of title in the vendor, amount to a mutual rescission of the contract. Prentice v. Erskine, 164 Cal. 446; 129 Pac. 585. 4 A parol agreement discharging the vendee from his contract as to part of the land on account of defective title is a good defense to an action for the purchase money, pro tanto. Hussey v. Roquemore, 27 Ala. 281 ; Caxney v. Newberry, 24 111. 203; Alexander v. Utley, 7 Ired. Eq. (N". C.) 242. 5 2 Warvelle Vend. 83. 628 MARKETABLE TITLE TO REAL ESTATE. pursued by the party intending to rescind is to notify the other party of that intent. 6 This form of relief is one to which the parties, acting in good faith, not infrequently resort, the pur- chaser agreeing to give up the premises and the vendor returning the purchase money. If, upon a rescission of the contract by consent, the vendor fail to return the purchase money, the vendee may recover it back ; the law implies an agreement on the part of the vendor to repay. 7 And where the contract is rescinded by the acts of both parties, the purchaser may recover back what he has paid, though the contract provides that upon default in the pay- ment of the purchase money the purchaser shall forfeit such payments as he may have made. 8 He is not in default in failing to pay on the day named if he then points out a reasonable objec- tion to the title.' The contract of sale frequently provides that the purchaser shall pay the purchase money within a certain time, and receive a clear title, and in default of payment in full at that time, shall forfeit so much of the purchase money as may have been paid. Where stich a provision exists, the forfeiture cannot occur so long as the vendor has not a good title. 10 If the purchaser be entitled to rescind because of the inability of the vendor to give a marketable title, the court cannot inquire into his motive for rescission. It is, therefore, immaterial that the value of the property had greatly declined at the time fixed for performance of the contract." 2:5.".. RESCISSION BY THE ACT OF ONE PARTY ONLY. Any act by which either party clearly manifests that he has abandoned 1 Supd. Vend. (14th Am. ed.) 370 (243). Reynolds v. Nelson, 6 Madd. 18; Alexander v. Utley, 7 Ired. Eq. (N. C.) 242: MoDmvi-11 v. M. but that he cannot by so doing deprive the other party of his rijrlit to enforce the contract. Thus, if the vendor attempt to rescind by conveying the premises to a stranger, he cannot thereby affect tin- right of the other party to affirm the contract by action for dam- ages, and though the vendee may elect to rescind by abandoning the possession and refusing to pay the purchase money, the right of the vendor to affirm the contract by demanding specific perform- ance in equity, or damages at law, remains unimpaired. If the purchaser elect to treat the contract as rescinded, his election must be evidenced by acts as well as words, that is to say, that he must give up whatever he has received under the contract, and cannot avoid its obligation by merely declaring that he will proceed no further in the business." L'.'Ji;. STATUTE OF FRAUDS. It has been decided that a rescission of a contract of sale of lands by mutual agreement, being a contract relating to real estate, is within the Statute of Frauds, 1 ' and must be in writing, but the weight of authority is that a rescission by parol is valid. 20 The rescission, however, must be "Davidson v. Keep, 61 Iowa, 218; 16 N. W. Rep. 101. Compare Dotaon v. Bailey, 76 Ind. 434. Li-win v Mi-Milieu, 41 Barb. (X. Y.) 420; Boyce v. McCulloch, 3 Watte & FWjr. (Pa.) 429. "Dial v. Grain, 10 Tex. 444. W 2 Warvelle Vend. 834; Fry Specific Perf. 8 1000. Boyce v. McCulloch. Watt* A Serg. (Pa,) 420; Goucher v. Martin, 9 Watta (Pa.), 106. In Gimby r. Sluter, 44 Md. 237, the question whether a parol agreement to rescind a contract for the aale of land* in within the Statute of Frauds, was rained but not . 12 * This chapter. ' Post, oh. 25. 10 Post, ch. 27. 11 Ante, oh. 16. 12 Post, ch. 26. 636 MARKETABLE TITLE TO REAL ESTATE. VI. After a contract for the sale of lands has been executed by a conveyance with covenants for title, the purchaser cannot, though he has been evicted by one claiming under a paramount title, or though he has discharged an incumbrance upon the estate, recover back the purchase money eo nomine, either by suit in equity, or by action against the vendor for money had and received to the plaintiff's use. His remedy is upon the covenants for title. 13 VII. If the vendor fraudulently induced the purchaser to accept a bad title the latter may at law recover back or detain the purchase money as damages, whether the contract is executory, or has been executed; and if executed, whether the conveyance was with or without covenants for title; and if with covenants for title, whether those covenants have or have not been broken. 14 PROPOSITION I. A purchaser of lands may, so long as the contract remains unexecuted by a conveyance, as a general rule, recover back or detain the purchase money, if the title of the vendor be not such as the purchaser is, under the contract, entitled to require. 238. BIGHT TO RECOVER BACK THE PURCHASE MONEY. As to the right to recover back the purchase money, the rule is thus stated by an eminent authority: "When a person sells an interest and it appears that the interest which he pretends to sell was not the true one, as, for example, if it was for a less number of years than he had contracted to sell, the purchaser may con- sider the contract at an end and bring an action for money had and received to recover any sum of money which he may have paid in part performance of the agreement for sale." The rule thus stated has been frequently recognized in America. 15 The pur- w Pot, ch. 28. 14 Po*t, oh. 20. Tn a case in which the purchaser deposited the cash pay- ment with a Htakejjolder, to !M forfeited on failure to comply with the con- tract, and the vendor made no effort to cure defeets pointed out 1>y the pur- chaser'* counsel on examination of the title, the vendor could not claim a forfeiture of the deposit. Greenville Nat. Bank v. Parkinson, (Tex. Civ. App.) 52 R. W. Rep. 648. " 1 Sujfd. Vend. (14th ed.) 2fl^. Wherever the purchaser has a right to reiwind the contract, he may bring an action for money had and received to In-, u*e. Id. 2 ll. Turner v. Nightingale, 2 Knp. 63ft; Hearn v. Tomlin, RECOVER OR DETAIN PURCHASE MONEY ON FAILURE OF TITLE 637 cha&er may, of course, rescind the contract and recover back or detain the purchase money at law, in any case in which the vendor fraudulently misrepresented or concealed the state of his title. 16 If while the contract is executory the purchaser is forced to buy in an outstanding adverse claim to the property in order to protect his title, he may recover back from the vendor or his estate the amount expended for that purpose." Where the contract provided for the forfeiture of cash pay- ments made by the purchaser in case of his failure to pay the deferred payments promptly, it was held competent for the pur- chaser to show an oral agreement that such payments were to be further postponed until the right of the vendor to receive and convey title to the land should be determined. Such agreement estops the vendor from claiming a forfeiture of the purchaser's deposit while the question of his title is unsettled. 18 Peake Cas. 192; Thompson v. Miles, 1 Esp. 184; Hibbert v. Shee, 1 Camp. Cas. 113; Duffell v. Wilson, 1 Camp. Cas. 401; Greville v. Da Costa, Peake Add. Gas. 113; Guttschlick v. Bank, 5 Cranch (U. S. C. C.), 435; Seibel v. Purchase, 134 Fed. Rep. 484; Sanders v. Lansing, 70 Cal. 429; 11 Pac. Rep. 702; Burks v. Da vies, 85 Cal. 110; 24 Pac. Rep. 613, where the purchaser had only an " option " to take the property at a certain price. Swihart v. Cline, 19 Ind. 264; Wickliff v. Clay, 1 Dana (Ky.), 585; Fields v. Baum, 35 Mo. App. 511; Pino v. Beckwith, 1 New Mex. 19; Force v. Dutcher, 18 N. J. Eq. 401; Judson v. Wass>, 11 Johns. (K Y.) 525; 6 Am. Dec. 392; Putnam v. Westcott, 19 Johns. (N. Y.) 73; Stevens v. Van Ness, 19 N. Y. 'Supp. 950; Wetmore v. Bruce, 118 N. Y. 319; 23 N. E. Rep. 303; Smith v. Browning, 225 N. Y. 3S8; 1(22 N. E. 217; Pipkin v. James, 1 Humph. (Term.) 325; 34 Am. Dec, 652; Buchanan v. Alwell, 8 Humph. (Tenn.) 516; Topp v. White, 12 Heisk. (Tenn.) 165; Mayes v. Blanton, 67 Tex. 246; House v. Kendall, 55 Tex. 40; Hall v. Huffhines, 47 Tex. Civ. App. 276; 105 S. W. 522; Parsons v. Smith, 46 W. Va. 728; 34 S. E. Rep. 922; Burke v. Schreiber, 183 Mass. 35; 66 N. E. Rep. 411; Maxwell v. Gregory, 53 Neb. 5; 73 N. W. Rep. 220; Talbot v. Land Co., 143 La. 263; 78 So. 533; Schlemmer v. Nelson, 123 Minn. 66; 142 N. W. 1041; Maya v. Blair, 120 Ark. 69; 179 S. W. 331; Indiana etc., Mfg. Co. v. Pharr, 82 Ark. 573; 102 S. W. 686; Rochells v. Brookman, 152 111. App. 253. In Kerr v. Read, (Cal. App.), 179 Pac. 399, it was held that the purchaser was entitled to recover his deposit where the vendor, without his consent, conveyed the property to a stranger. As to the right of a subscriber to the stock of a land company to recover back his subscription on failure of title to the lands- forming part of the capital stock of the company, see Wright v. Swayne, 5 B. Mon. (Ky.) 441. 19 Post, chs. 29 and 35. Inness v. Willis, 16 Jones & S. (N, Y.) 188. 17 Ante, ch. 19. Ferguson v. Teel, 82 Va. 690. 18 Missouri, K & T. R. Co. v. Pratt, (Kans.) 67 Pac. Rep. 464. 638 MARKETABLE TITLE TO REAL ESTATE. It has been held that the purchaser, in a case in which the vendor has been guilty of fraud, may, where the purchase money paid has been invested by the vendor in the funds or other prop- erty so that it may be traced, follow it and impress it with a trust. 19 The decision has been criticised by Sir Edward Sugden, who con- siders that such a rule, if established, would lead to much incon- venience. 20 The better opinion seems to be that the purchaser cannot follow the purchase money and obtain a lien upon it to the exclusion of creditors of the vendor, or others having equal equities with himself. The purchaser may maintain an action to recover back the pur- chase money without having made a previous demand therefor, if the vendor is insisting upon a specific performance of the contract. The general rule is that no formal demand is necessary where the defendant disputes his liability to refund. 21 The right of the purchaser to rescind and recover his deposit is not affected by the fact that he had notice of the defects in the title when the contract was made. He has a right to expect the removal of the defects by the vendor before the time fixed for performance.* 1 An action at law to recover the deposit cannot be defeated on the ground that no time was allowed the vendor in which to perfect the title. At law, time is of the essence of the contract. 23 The purchaser, having elected to rescind and having recovered back the purchase money, cannot thereafter maintain an action against the vendor to recover damages for the loss of his bargain. 24 238-a. FORFEITURE OF DEPOSIT. It is frequently pro- vided in contracts of sale that the purchaser shall forfeit his deposit if he fails to comply with his contract within a specified time. The vendor cannot insist upon this forfeiture if he be unable to perform the contract, on his part, for want of title. In "Small v. Atwood, Yo. 407. In this cae, however, the alleged fraudulent representations were aa to the quality of the eatato. 1 Sugd. Vend. (9th Am. ed.) 393 (256). " Jennem v. Spraker, (Ind. App.) 27 N. E. Rep. 117; Toney v. Toney, 73 Ind. 34; Brown v. Harrison. 93 Ind. 142. Bell v. Stadler, 31 Idaho, 568; 174 Par. 129. Oroden v. Jacobean, 114 N. Y. Supp. 183; 12ft App. Div. 508. Ant, | 1. Whrte v. Harvey, 175 Iowa. 213; 157 N. W. 162. RECOVER OR DETAIN PURCHASE MONEY ON FAILURE OF TITLE 639 such a case, there is a complete failure of the consideration, and the vendor has no more right to keep the purchaser's money than he would have to compel specific performance of the contract. 25 But wan*t of title in the vendor will not prevent a forfeiture of the deposit when the purchaser well knew that legal proceedings would be necessary to en-able the vendor to perform his contract, as where the interest sold* consisted of an option on the property of a widow and- minor children, which could be made effective only by proceedings in the probate court to authorize the sale. 26 239. WHAT ACTION THE PURCHASES SHOULD BRING. In those States in which the common-law system of procedure is retained, if the purchaser elects to disaffirm or rescind the contract by proceeding at law while the contract is yet executory, the proper action is trespass on the case in assumpsit, counting for money had and received- to the plaintiff's use and' benefit. 27 In this ac/ion, he will recover merely what he has paid, with interest, including the deposit made at the time of the s"ale, which is con- sidered a part of the purchase money, and cannot recover for expenses incurred in examining the title, nor for special damages caused by the vendor's inability to perform the contract, all of which must be sought in an action on the case for breach of con- tract or for deceit, as the case may be. 28 If, however, he took from the vendor a bond conditioned to make title, his remedy is by action of covenant on the bond. 29 The remedy at law to recover back the purchase money on failure of the title, where the contract is executory, is concurrent with the remedy in equity for rescission. In the action at law, it cannot be objected that the plaintiff's remedy is in equity. 30 26 Ante, 88. Platte Land Co. v. Hubbard, 12 Colo. App. 465; 56 Pac. Rep. 64. 28 McAlpine v. Reichenecker, 56 Kans. 100; 42 Pac. Rep. 339; Carter v. Fox, 11 Cal. App. 07; 103 Pac. 910. See, also, Vanity Fair Co. v. Hayes, 31 R. I. 77; 76 Atl. 771. "1 Sugd. Vend. (8th. Am. ed.) 35'7 (236). In the States where the common law procedure does' not obtain, he may sue for money had and received to his use. MeDermott v. Chatfield, 18 Cal. App. 499; 123 Pac, 539. 84 Sugd. Vend. (8th Am. ed.) 357 (236). 29 Post, 242. Rounds v. Baxter, 4 Me. 454; Green v. Green, 9 Cow. (N. Y.) 46; Char,les v. Dana, 14 Me. 383. 30 Wright v. Dickinson, 67 Mich. 580. This was an action to recover back 640 MARKETABLE TITLE TO REAL ESTATE. 240. DETENTION OF THE PURCHASE MONEY. The pur- chaser may, also, while- the contract is executory, resist the pay- ment of purchase money, if the title has failed. 31 This right purchase money paid on an executory contract for the sale of lands. It was objected by the defendant that, as the purchaser sought a rescission of the contract, his remedy was in equity. The court, however, said that there was no occasion to call for the interposition of a court of equity. There were no deeds to be surrendered up and canceled, and nothing which was required to be perpetuated by a decree. All there was to be ascertained could be ascer- tained by a jury, ami that was, how much in equity and good conscience ought the vendors to repay of the purchase money they had received. All benefits which the purcha-ser had received would have to be deducted, and those could be ascertained and allowed for in a common-law proceeding. The value of the timber cut and removed, and all other benefits which the pur- chaser derived from the contracts, could be adjusted in the action. " Smith v. Pettus, 1 Stew. & Port. (Ala.) 107; Whitehurst v. Boyd, 8 Ala. 375; Pearson- v. Seay, 35 Ala. 612; Sorrella v. McHenry, 38 Ark. 127. Clark v. Croft, 51 Ga, 36S; Hall v. Mi-Arthur, 82 Ga, 572; 9 S. E. Rep. 534. Greg- ory v. Scott, 4 Scam. (111.) 392; Cunningham v. GwSnn, 4 Bh (Ind.) 341; Fish v. West, 18 K,y. Law R. 144; 35 S. W. Rep. 624; Dufief v. Boykin, 9 La. Ann. 295; Wamsley v. Hunter, 29 La. Ann. 628; iBuchanan v. Lorman, 3 Gill (Md.), 51; Dorsey v. Hobbs, 10- Mkl. 412; Pequea v. Mosby, 7 Sm. & M. (Miss.) 340: Mobley v. Keyes, 13 Sm. & M. (Mass.) 677; Barton v. Rec- tor, 2 Mo. 524; Wellman.v. Dismukes, 42 Mo. 101; Earl v. Campbell, 14 How. Pr. (Jf. Y.) 330. This, however, was a suit to compel the purchaser to accept a deed and pay the purchase money. Welch v. Watkins, 1 Hayw. (N. C.) 369; Stf the vendor to convey, presented a legal, and not an equitable defense. It would scorn that this olmervation of the court rmist !< taken with the qualification that the plea in n -^ show a clear failure of title, and not merely a doubtful title, in order to have that effect. If the plea avers facts rendering the title merely doubt- ful, the authorit if* conclusively Know that the defense is equitable and not legal. In an action to recover the purchase money of land, a plea that the deed tendered by the vendor was insufficient for lack of a proper description of the premises, but which fails to show wherein the description is defective or uncertain, is bad. Pettys v. Marsh. (Fl.) 3 So. Rep. 577. The cases in the Knglj*h report* involving the right of the purchaser to set up the defense of failure of title in an action for the purchase money, are few compared with those in which the purchaser *eeks to recover Iwck the purchase money on the name ground, and these latter consist chiefly of actions to recover back the earnest monay, or deposit made with the auctioneer. The causes BECOVEE OB DETAIL PUBCHASE MONEY OX FAILUEE OF TITLE 641 depends upon the same principles upon which he is allowed to recover back the purchase money in a like case, and is subject to the same exceptions. Accordingly it seems that wherever the pur- chaser might recover back the purchase money for defect of title, he may detain the same in an action against him by the vendor, 32 and this to prevent circuity of action, for there would be no reason in requiring the defendant to pay over that which he could imme- diately recover back from the plaintiff. An action for the pur- chase money of land is, in legal effect, a petition or bill for specific performance of the contract of purchase, and is governed by the same equitable principles. 33 The purchaser cannot be compelled to pay the purchase money if, by reason of the fraudulent repre- sentation of the vendor with respect to the title, he was induced to agree to accept a quit-claim conyeyance of the land. 34 The fact that a note for the purchase money of land was executed to the vendor, 30 or to a third party at the request of the vendor, does not affect the right of the purchaser to detain the purchase money on failure of the title. 38 Neither is that right affected by the purpose for which he bought the premises, though such purposes may have been dishonest or improper. 37 Contracts for the sale of real estate frequently provide that the deposit or cash payment made by the purchaser shall be forfeited unless he makes prompt payment of the deferred installments of the purchase money. But under such a provision a forfeiture cannot be declared where the purchaser declines to pay the purchase money until the vendor removes an incumbrance from the premises, or cures a defect in the title. 38 A provision in the agreement that the purchaser shall pay dam- of this disparity probably are that owing to the English practice of carefully examining the title few contracts proceeded further than the payment of the earnest money, if the title was bad, and that if the purchaser took possession and paid the purchase money, without examining the title, he would there be deemed to have waived his objections to the title. 32 Billiard on Vend. 71. 83 Black v. Am. International Corp., 264 Pa, 260; 107 Atl. 737. 31 Hayes v. Bonner, 14 Tex. 629. 33 Piatt v. Trimby, 155 111. App. 29'. 38 Crawford v. Keebler, 5 Lea (Tenn.), 547. 27 Hollenburgh v. Morrison, 9 Watts (Pa.), 408. 38 Wallace v. McLaughlin, 57 111. 53. 81 642 MARKETABLE TITLE TO HEAL ESTATE. ages in case of a breach of the contract by him, does not take away the right of the vendor to sue for the unpaid purchase money. 19 As between vendor and purchaser there is no obligation upon the latter to record the contract of sale under which he holds. Therefore, where, for want of such record, the premises are sub- jected in the hands of the purchaser to the payment of claims against the vendor, the purchaser, having lost the estate, is none the less entitled to detain the unpaid purchase money. 40 In such a suit, the court may provide for the application of the' purchase money to the payment of liens upon the land. 41 241. EXCEPTIONS AND QUALIFICATIONS. The principal qualifications of the rule that the purchaser may recover back or detain the purchase money on failure of the title hereinbefore stated, are, that the right does not exist where the purchaser has waived his objections to the title, 41 * where the vendor has a right to perfect the title, 42 or to require the purchaser to take the title with compensation, or abatement of the purchase money, in case of trifling deficiencies and incumbrances, 43 and where the purchaser refuses or neglects to restore the possession to the vendor and to place him substantially in the same condition in which he was before the contract was made. 44 It has been held that an agree- ment to convey to the purchaser in fee simple does not entitle him to rescind the contract and recover back the purchase money on the ground that there are incumbrances on the property. 4 " This is a narrow interpretation of such an agreement and is not sup- ported, it is believed, ly the weight of authority, 46 except in those "Boyd v. Hoffman, 341 Par. 421; 88 Atl. 675. Daniel v. Baxter, 1 Lea (Tonn.), 630. "Burnett v. Sulflmv, 134 Minn. 407; 159 N. W. 951. *Ante. oh. 8. "Post, 8 325. The purchaser cannot rex-over his deposit where the vendor promptly removes the ol)j<-i (inns to the title pointed out hy the purchaser, v. !.<*. :,; Wa-h. 2.V!: 105 Pac. 460. -Post, i 308. 44 Pc*t, { 256, et scq. !!.-r r. llubk.r.l. r, Cr, (N*. V.) 13; 16 Am. Dec. 423. - In Lewi* v. White. It; (>lii<> Eft, HI. it \vn- held that under an agreement by which he wan t. i JUT feet title," the purchaser mipht rescind the contract if the premises \\. re im-umWed. RECOVER OR DETAIN PURCHASE MOXEY OX FAILURE OF TITLE 64:3 cases in which the purchase money can be applied to the discharge of the incumbrance. In the English practice it has been held that a purchaser cannot, at the trial of an action to recover his deposit, insist upon an objection to the title which he did not raise at the time he refused to complete the contract; provided the objection be of such a nature that if then stated it could have been removed. 47 This decision has been cited approvingly in a recent American case, in which it was held that it was incumbent on a purchaser, assuming to examine the title, to make a complete, examination, and that in an action to recover the deposit he would be limited to the defects pointed out when he rejected the title. 48 It has been held that a purchaser assenting to an assignment of the contract by the vendor cannot, on failure of the title, in the absence of fraud by the assignee, recover back payments of the purchase money made to him, though all parties at the time of the assignment were ignorant that the title was bad. The assignee is in no way responsible for the validity of the title, and the purchaser takes the risk incurred by making payments to one from whom they cannot be recovered back. 49 * 7 Todd v. Hoggart, Moo. & M. 123. Chitty. Cont. (10th Am. ed.) 337. ^Easton v. Montgomery, 90 Cal, 313; 27 Pac. Rep. 280. There are dicta in this decision from which it might be inferred that a vendor negligently omitting an examination of the title, would thereby lose his -right to rescind the contract and recover back the purchase money, if the title failed' from causes that an examination would have disclosed. In Soper v. Arnold, L. R., 14 App. Cas. 429, it was held that a purchaser having accepted the title shown by the abstract and forfeited his deposit by failing to comply with the contract, cannot, on a decision in favor of the second purchaser that the title was bad by reason of a defect appearing on the face of the same abstract, recover his deposit on the ground of mutual mistake and failure of considera- tion. 49 Youma.ns v. Edgerton, 91 N". Y. 403, disapproving Smith v. MteCluskey, 45 Barb. (N. Y.) 610. The court observed that the assignment did not, nor did it purport to, transfer any right in the land, or impose upon him any obligation. It was a mere authority to receive the moneys called for by its terms and apply them to his own use. With notice of this limitation, the party paying the money is chargeable. The purchaser's case is, therefore, not different from what it would have been if, as each payment became due, the vendor had given an order for value on the vendee to pay the same to the assignee, or an assignment in form of each separate installment. In G44 MARKETABLE TITLE TO HEAL, ESTATE. The right to resist the payment of the purchase money for defect of title is personal to the vendee. Therefore, if the vendee execute a note for the purchase money with sureties, the latter cannot, in an action on the note, set up the plaintiff's want of title as a defense. 50 This is a mere application of the principle that a surety cannot, as a general rule, avail himself of his principal's right of set-off, recoupment or counterclaim. 01 242. WHAT OBJECTIONS TO THE TITLE MAY BE MADE IN ACTIONS FOB THE PURCHASE MONEY. As a general rule the purchaser may show in the defense of an action for the purchase money, while the contract is executory, any matter of law or fact which invalidates or renders unmarketable the title of his vendor. These may be classified as defects which appear on the face of the instruments under which the vendor claims title, such as the absence of words of conveyance; defects which appear from the public records, such as prior conveyances by the vendor, mort- gages, judgments, etc., and defects in pais, or those to be estab- lished by the testimony of witnesses, such as want of hcirship, personal disability of a grantor in the chain of title, etc. A fur- ther classification of the principal sources or grounds of objection to the titlo may be seen in a preceding part of this work. 52 At one time it was held that the objection that the title was doubtful or unmarketable could not be availed of at law, all titles at law being regarded either as good or absolutely bad, and the doctrine of unmarketable titles being cognizable only in a court of equity, lint now the objection that the title is not such as the purchaser could be requirqd to take upon a bill for specific performance, may be made at law as freely as in equity. 53 neither case eouloV the debtor, if he accepted the order or assented to the a-sipnment, et up in defense of payment nny equity between himself and the a*ipnor, nor after payment recover back the money upon allowing even such equity ;i- would have been a defense n between himself and the assignor. ~2 Fantons B. & X. 538, C37. Lewis v. MrMillen, 41 Barb. (X. Y.) 431, filing ftilkwpie v. Torranee, 25 X. Y. 30ft; 82 Am. Dec. 355; Webb v. Spieer, 13 Q. B. 8S6; Salmon v. Webb. 1ft Eng. L. & Eq. 37. "' There in. however, a conflict of authority on thiH point. Brandt on Suretyship, I 208; 24 Am. & Knp. Kncyc. of Law, 790, "Ante. I 77, el *eq. "Pout. | 286. Sachs v. Owing.-. 121 Va. 102; 92 8. E. 997. BECOVEE OR DETAIN PUECHASE MONEY ON FAILURE OF TITLE 643 243. EXPENSES OF EXAMINING THE TITLE. In those States in which the distinction between trespass on the case and trespass on the case in assumpsit is still observed, the purchaser cannot, on the count for money had and received to his use, recover expenses incurred by him in examining the title, or in fact any items of expense or damage growing out of the failure of the title, because the right to recover any such items depends upon contract, and the count for money had and received disaffirms the contract. 54 In a State in which a system of " Code procedure " has been adopted, the purchaser was allowed the expenses of examining the title in an action to recover back the purchase money. 55 243-a. INTEREST ON DEPOSIT. As a general rule, the purchaser is entitled to recover interest on his deposit from the time that he rejected the title and demanded the return of the deposit. 56 But, under the particular circumstances of the case, he has been allowed interest only from the commencement of his suit to recover the deposit. 57 244. BURDEN OF PROOF LIES ON PURCHASER. MISCEL- LANEOUS RULES. If the purchaser seeks to detain or to recover back the purchase money on the ground of want of title in the 64 Ante, 93." 1 Sugd. Vend. (8th Am. ed.) 547 (362) ; Chitty Cont. (10th Am. ed.) 339; Canfieltf v. Gilbert, 4 Esp. 221; Go&bell v. Archer, 4 Xev. & Man. 485; Walker v. Constable, 1 Bos. & Pul. 306- ; Mangonaro v. Karl, 84 X. J. L. 408; 87 AtL 94. 65 Wetmore v. Bmce, 118 X. Y. 320; 23 X. E. Rep. 303; Elfenheim v. Von Hafen, 23 X. Y. Supp. 348;. Lowe v. Molter, (R. I.) 71 Atl. 592; Rose v. Adler, 147 X. Y. Supp. 307; Maupai v. Jacobs, 124 X. Y. Supp. 220; 139 App. Div. 524, where held, also, that he was entitled to recover the expense of employing an attorney, in addition to a title company, to examine the title. If the title be found to be good- 'but specific performance by the vendor impracticable, the purchaser will not be allowed the expenses of examining the title. Brody & Co. v. Hochstadter, 144 X. Y. Supp. 631 ; 160 App. Div. 3'10. He is not entitled to recover for expenditures on the property while uncertain about the title. Prentice v. Townsend, 127 X. Y. Supp. 1066; 143 App. Div. 151. 56 Turner v. Reynolds, 81 Cal. 214; 22 Pac. 546; Hayt r. Bental, 164 CaL 680; 130 Pac. 432; Anderson v. Ohnoutka, 84 Xeb. 517; 121 X. W. 577; 39 Cyc. 2074; 48 Cent. Dig. Vend. & Purch. 1017. The vendor has his counter- claim for the use and 1 occupation if the purchaser was put in possession. Post, 257. "Donovan v. Hoenig, 157 Wis. 250; 146 X. W. 1125. (>46 MARKETABLE TITLE TO REAL ESTATE. vendor, the burden will be on him to show defects in the title. 6 * An agreement by the vendor to execute to the purchaser " a good and sufficient warranty deed" does not impose on the vendor the burden of showing a clear title in such an action. 09 But if the purchaser produces an original abstract of title showing a defect of title in the vendor a prima facie case is established against the latter, putting him to proof of a better title. 60 Miscellaneous rules. Of course, if the vendor disable himself from performing his contract by conveying the land to a third party, the purchaser may bring an action to recover back the pur- chase money paid instead of seeking damages for the violation of the contract. 61 But if the purchaser rejects a good and market- able title when tendered, and the vendor has waived none of his rights and left no part of the contract open, the purchaser cannot recover back his deposit on the ground that the vendor after the rejection of the title had conveyed the land to a third person. 62 "Poet, & 281. Dwight v. Cutler, 3 M'ich. 666; 64 Am. Dec. 106; Allen v. Atkinson, 21 Mich. 361 ; Sawyer v. Sledge, 55 Ga, 152: Cantrell v. Mobb, 43 Ga. 193; Bolfcon v. Branch, 22 Ark. 435; Reynolds v. White, 118 X. Y. Supp. 979; 134 App. Div. 248; S. C. 129 X. Y. Supp. 52; 143 App. Div. )05; Barde* v. Herman, 125) X. Y. Supp. 723; 144 App. Div. 772; Talifer Co. v. Falk, 173 X. Y. Supp. 251 ; 105 Misc. Rep. 6. Purchaser refusing to take the title, must point out and: prove the defects. Baecht v. Hevesy, 101 X. Y. Supp. 413; 115 App. Div. 509. "Baxter v. Aubrey, 41 Mich. 13, COOLEY, J., saying: "The contract obli- gated the vendor when the purchase price was paid to ' execute and deliver ' t<> the vendeo 'a good and sufficient warranty deed.' Baxter (the purchaser) claimed that this means a warranty deed conveying title to the land, and that it was not enough for the vendor to tender a deed sufficient in form, luit she must go further and show that she had at the time a title which the deed would convey. We think, however, if the vendee accept* a contract in which the ownership of the vendor is assumed, and agrees to pay for the land without requiring the vendor to produce evidence of his title, the burden will l*> upon him to show defects. The presumption will be, in the absence of any showing, that he satisfied himscH respecting the title when he made his bargain." "Hurt ley v. James, 50 X. Y. 41; Kane v. Rippy, 22 Oreg. 296, 23 Pac. Rep. 1*0. In an action of covenant to recover the purchase money a plea of covenants performed, abaquc hoc, etc., does not put the plaintiff's title in itwuo and impose on him the burden of showing that his title is good. Hite v. Kier, 38 Pa. St. 72. "Burley v. Shinn, 1 Xeb. 433; Gwin v. Calegaris, 139 Cal. 384, 73 Pac. 851. Beyer v. Braender, 67 X. Y. Super. Ct. 429. EECOVEK OK DETAIN PURCHASE MONEY ON FAILURE OF TITLE 647 If the purchaser demands such a deed as the contract entitles him to receive, and the vendor refuses to give it, but insists on the acceptance of a different and inferior title, the contract may be regarded as broken, and the purchaser may sue at once and recover back whatever purchase money he has paid. 63 The purchaser cannot recover back the purchase money nor detain that which is unpaid on failure of the title, in any case in which the rule caveat emptor applies; e. g., sales by adminis- trators, sheriffs, officers of a court, and other judicial and quasi- judicial sales. 64 This rule of course does not apply where the question is only as to the validity or legality of the sale. 86 The purchaser may not only recover back his deposit where there is a palpable failure of the title, but he is entitled to that privilege if the vendor fail to produce a marketable title, or one that is free from reasonable doubt. What is sufficient to render a title unmarketable will be elsewhere considered. 66 If the vendor's abstract shows a bad title, the purchaser can maintain an action to recover back his deposit without offering to complete the con- tract and demanding a conveyance. 67 If the vendor be unable to perform his contract for want of title, the purchase money may be recovered back though the con- tract was void, as where it was within the Statute of Frauds. The defendant holds the money without consideration and is bound to return it. 68 63 Shrove v. Webb, 1 Term, 732; Reddington v. Henry, 48 N". H. 279; Little v. Paddleford, 13 N. H. 167; Foote v. West, 1 Den. (N. Y.) 544; Camp v. Morse, 5 Den. (N". Y.) 161; Laurence v. Taylor, 5 Hill (N. Y.), 107. In Wilson v. Getty, 57 Pa. St. 266, the purchase money had been deposited in bank " to be paid over as soon as counsel for the parties pronounced the deed to be complete and perfect." Counsel having pronounced the deed tendered to be insufficient (the title not being good) it was held that the purchaser might immediately recover the deposit. This, however, was a suit in equity instead of an action at law, but the principle is the same in either case. 64 Rorer on Jud. Sales, 458. Ellis v. Anderton, 88 N. C. 472, distinguish- ing Shields v. Allen, 77 N. C. 375. "" See Shipp v. Wheless, 33: Miss. 646. "Post, oh. 31. 87 1 Sugd. Vend. (8th Am. ed.) 368 (241). "Gosibell v. Archer, 4 Nev. & Mann. 485; Adams v. Fairbain, 2 Stark. 277; Gillett v. Maynard, 5 Johns. (N. Y.) 815, 4 Am. Dec. 329. Here, however, the 648 MARKETABLE TITLE TO REAL ESTATE. The purchase money may, on failure of title, be recovered by the purchaser virtually in other forms of proceeding: than- the action for money had and received. Thus, in an action for breach of the contract or for breach of covenant, the damages are, as a general rule, measured by the consideration money and interest. And in equity upon a rescission of the contract, the court decrees a return of the purchase money to the purchaser. In the action for money had and received to his use, disaffirming the contract on failure of the title, the purchaser cannot recover more than the money paid, though the estate has risen in value.* 9 The rule is the same, however, in an action- for damages unless the vendor was guilty of fraud. 70 245. BIGHT TO RESCIND WHEN THE ESTATE IS INCUM- BEBED. In many cases the purchaser may rescind the contract and recover back or detain the purchase money, if the estate is incumbered. 71 Where an incumbrance is discovered previously to the execution of the conveyance and payment of the purchase vendor merely refused to convey. Buck v. Waddle, 1 Ohio, 357; Thompson v. Gould, 20 Pick. (Maas.) 134, semble. Flinn v. Barber, 64 Ala. 193; Collins v. Thayer, 74 111. 138. 1 Sugd. Vend-. 358; Dutch v. Warren, 2 Burr. 1010; Dale v. SoUett, 4 Burr. 2133. "Ante, 85 91, 101. n See ck 31, 5 804, et scq. Parsons v. Kelso, 141 Mo. 'A pp. 369, 125 S. W. 227. The existence of a recorded mortgage on the property makes the title unmarketable and entitles the purchaser to a return of hia deposit, though Huch mortgage he voidable because not recorded until after the recording of a subsequent conveyance by the mortgagor. Rose v. Adler, 147 N. Y. Supp. 907. Where the contract was that the purchaser should have a fee-simple title free and clear of all taxes, mortgages, or other liens, the purchiuer could not be required to take the property tiubject to the right of a stranger to eirtiMtruct an irrigation ditch through it. Wingard v. Copeland, (>4 Wash. 214, 11G I'm-. 670. A restriction which prevents the purchaser from using a portion of the frontage of the premises otherwise than for a court yard fa an incumbrance entitling him to rescind t'.u- contract and recover baok his deposit, Wetmore v. Bruce. 54 N". Y. Super. Ct. 149; affd., M8 N. Y. 319, 23 N. E. Rep. 303, citing Trustees v. Lynch, 70 N. Y. 440, 26 Am. Rep. 615. nnd di*tingu Miring Riggs v. Pitrsell, 66 N. Y. 199. In Colorado it has been held that an irrigation contract is not appurtenant to the lands irri- guted, and that if a vendee of -m-h lands pays a Imlance due on such a con- tract under which the land was to be irrigated for a term of years, he cannot look ti riie vendor to reimburse him. Chamberlain v. Amtur, (Colo.) 7 Pac. Rep, 87. RECOVER OR DETAIN PURCHASE MONEY ON FAILURE OF TITLE 649 money, the vendor must discharge it whether he has or has not agreed to covenant against incumbrances, before he can compel ' payment of the purchase money. 72 The mere existence of an incumbrance on the* premises on the day fixed for completing the contract, is no breach by the vendor if he be then prepared to remove the incumbrance, 73 and if the holder of the incumbrance will accept payment of the same before maturity. 74 But if the purchaser then makes a tender and demands performance, and the vendor fails to remove the incumbrance, or provide for its removal to the satisfaction ofthe purchaser, the latter may rescind and recover his deposit. 75 The question, what is an incumbrance, and under what circum- stances the purchaser may. because of its existence, refuse to pro- ceed with the contract, is considered elsewhere in this work. 76 Little difficulty is experienced in determining what is a pecuniary incumbrance, except in the case of undetermined- and inchoate liabilities affecting the premises at the time of the contract, such as taxes and essessments. We have seen under what circumstances taxes and assessments upon the warranted premises will be deemed a breach of the covenant against incumbrances. 77 Where the con- tract is executory, the purchaser is in equity regarded as the owner of the estate, and must pay the taxes accruing between the making of the contract and the execution, of the conveyance, unless the parties have entered into some special agreement respecting the taxes. 78 In a case in which the contract provided that the 72 2 Sugd. Vend. (8th Am. ed.) 192; Glassman v. Condon, 27 Utah 463, 76 Pac. 343l "Higgins v. Eagleton, 155 X. Y. 466, 50 N. E. Rep. 287; Lamb" v. De Vault, 139 111. App. 398. 74 Pioneer Min. Co. v. Price, 189 Mo. App. 30, 176 S. W. 474. 75 Raben v. Risnikoff, 88 N". Y. Supp. 470, 95 App. Div. 6-8; Ross v. Haynes, (Tex. Civ. App.) 196 S. W. 364. 79 Post, 304, et seq., ch. 31. See, also, ante, 123. " Ante, 124. " Taxes " include special assessments. Giles v. Peo. Nat. Bank, 198 111. 307, 65 N. E. Rep. 1060; Williams v. Monk, 179 Mass. 22, 60 N. E. Rep. 394. T8 Furber v. Purdy, 69 Mo. 601; Sherman v. Savery, 2 Fed. Fep. 505; Gary v. Gundlefinger, (Ind.) 40 N. E. Rep. 1112; Williamson v. Neeves, 94 Wis. 656, 69 N". W. Rep. 806; Glinton v. S'lvugart, 126 Iowa, 179, 101 1ST. W. Rep. 7-85; Swanston v. Clark, 153 Cal. 300, 95 Pac. 1117. The liability of 82 650 MARKETABLE TITLE TO REAL ESTATE. purchaser should pay the taxes accruing between the making of the contract and the execution of a conveyance, the purchaser was held entitled to recover the taxes so paid by him, upon the inability of the vendor to convey for want of title. 79 Where the contract is made after the completion of a public improvement, but before the. imposition of an assessment therefor, the purchaser must pro- tect himself by provision in the contract. 80 Where the contract requires the vendor to pay existing taxes, he must pay a special assessment which was a lien on the land at the time of the contract though not then payable. 81 A tax sale of the premises made prior to the contract of sale, is an incumbrance which the purchaser must remove. 82 As a general rule the purchaser cannot rescind the contract on the ground that the title is incumbered if he can apply the pur- chase money to the removal of the incumbrance. 83 If he pays the purchase money in ignorance of the incumbrance, he may recover it back, and in an action for that purpose it is not necessary for him to go behind the record and show that the incumbrance has the parties for taxes is fixed by statute in a niuulwr e divided equally lietween the purchaser and the seller. Thompson v. Noble, 108 Mich. 26, 65 N. W. Rep. 746. "Missouri K. & T. R. Co. v. Pratt (Kans.). 67 Pae. Rep. 464. People v. Gilon, 9 N. Y. Supp. 212, Ante, 124. So, also, where the improvement was put upon the property after the price was agreed upon by the pactiesv. Charbonier v. Arbona, 68 Fla, 194, 67 So. 4i. "Otto v. Young, 227 Mo. 193, 127 S. W. 9. "Green v. Hernz, 37 N. Y. Supp-. 987, 2 App. Div. 255. "Pout. | 304. Pangborn v. Miles, 10 Abb. N. Cas. (N. Y.) 42: Rinaldo y. HotiAeman, 1 Abb. (N. Caa) (N. Y.) 312; Sachs v. Owing*. 131 Va. 162. 92 S. E. 097. In Lyon v. O'Kell, 14 Iowa, 238, and" Lyon v. Day, 15 Iowa. 409. the court below rejecteH evidence offered by the defendant that the property wa so inrumbered that the plaintiff could not perform his contract to convey a good titfe. This was reversed on appeal. The grounds of the ruling Iwlow do not appear. Similar evidence was excluded in Murphy v. Richardson, 2S Pa. St. 288, on the ground that the purchaser had bought subject to the incumbrance, but this decision was reversed on appeal, the court holding that whether in fact the purchase had been BO made was a question to be deter- mined by the jury. EECOVER OE DETAIN PURCHASE' MONEY OX FAILUEE OF TITLE 65i v,' not been paid ; he has a right to recover if the incumbrance appears unsatisfied of record. 8 * If the vendor produces an abstract show- ing that the incumbrance has been satisfied, he must further show that the person making such entry had authority for that purpose. 85 In a case in which the purchaser paid off an incumbrance which had been fraudulently concealed from him, and the amount so paid, together with what he had already paid to the vendor, amounted to the purchase price of the land, the court stayed the collection of the purchase-money notes and directed, that a deed be executed to the purchaser. 86 If the contract expressly require that the premises shall be conveyed to the purchaser free and clear of incumbrances, he cannot be required to accept a conveyance so long as the estate remains incumbered, though he be permitted to deduct the amount of the incumbrances from the unpaid purchase money. Under such a contract the vendor cannot impose upon the purchaser the burden of applying the purchase money to the incumbrances and procuring their satisfaction. 87 The same rule applies in respect to taxes which it is the vendor's duty to pay. 88 If the purchaser accept a conveyance from a third person who contracted* to convey to his vendor, he will be held to have waived' his right to have recourse against his vendor to recover back money paid to remove an incumbrance upon the premises. 89 Where the contract obliges the vendor to remove incumbrances from the estate there must be a demand accompanied by a notice of the removal of the incumbrance before he can? maintain an action to recover the purchase money. 90 It has been held that if the vendee is protected "Kimball v. Bell, 47 Kans. 757, 28 Pac. Rep. 1015. 85 O'Neill v. Douthett, 40 Kans. 690, 20 Pac. Rep. 493. 85 Rodman v. Williams, 4 Bl. (Tnd.) 72. 87 Webster v. Kings Co. Trust Co., 145 1ST. Y. 275, 39 1ST. E. Rep. 964, obiter, the purchaser in that case having in fact waived his objections. 88 Zorn v. McParland, 32 N". Y. Supp. 770, 155 N. Y. 684, 50 N. E. 1123; Berger v. Crist, 106 X. Y. Supp. 107, 121 App. Div. 483; Mandel v. Hess, 107 X. Y. Supp. 766. 89 Herryford v. Turner, 67 Mo. 296. " 90 Fitts v. Hoitt, 17 N. H. 530, the court saying: "The plaintiff had his own time for performing the acts which would by the agreement have entitled him to the payment of the money collected by the defendant, and he alone oould know at what time he became entitled. It would be an extreme hard- ship to permit him, immediately upon the consummation of the act, which 652 MARKETABLE TITLE TO HEAL ESTATE. as an innocent purchaser of the estate without actual or construc- tive notice of an incumbrance thereon, he cannot elect to waive such protection, rescind the contract and recover back the pur- chase money merely because such incumbrance exists. As to him, the estate is unincumbered and he must complete the contract. 91 The purchaser cannot, of course, be compelled to pay the pur- chase money and rest on the promise of the vendor to remove the incumbrance and execute a conveyance afterward. He has a right to see that the purchase money is actually applied to the discharge of the incumbrance. 92 If the incumbrance be one which the vendor can remove, the objection to the title on account of the incumbrance will be waived by the purchaser unless he makes it before the time fixed for the performance. 93 246. BUYING WITH KNOWLEDGE OF DEFECT OR INCUM- BRANCE. If the purchaser enter into the contract knowing that the title is imperfect or that there are incumbrances on the land, he will, as a general rule, be deemed to have waived his objections to the title, though not necessarily his right to require a conveyance with general covenants for title. 94 But if the vendor expressly agreed to remove defects or clear off incumbrances contemplated by the parties at the time the contract was made, he cannot enforce the payment of the purchase money until he has performed his contract in that regard. 95 Where an objection to the title was did not require the knowledge or concurrence of the defendant for its due performance, without notice to him, to maintain an action tor the money. Hence, the general rule that where the fact upon which the defendant'* . liability arises lies peculiarly within the knowledge and privity of the plaintiff, notice thereof must be stated to have been piven to the defendant l*fore the commencement of the action." Citing Saund. PI. & Ev. 132; Rex v. Holland, 5 T. R. 021. 2 Saund. 62a- "Wilkin* v. Irvine, 33 Ohio St. 138. "Milliard Vend. (2d ed.) 277; Wilhelm v. Fimple, 31 Iowa, 131, 7 Am. Rep. 117. "Biggins T. Kagleton, 155 N. Y. 466, 60 N. E. 2S7; Rosenberg v. Jacob- Bon, 107 X. Y. Spp. 505. Ante, | 85, "Waiver of Objections." Alien v. Hoparm. 1 Freem. Ch. (Minn.) 276; WigginH v. McCJiiupwy, 13 Sin. & M. (Miss.) 532; liaag v. Dirk in... n. 151 Ky. 768, 152 K. W. 930; Paris V. Golden. 1)6 Kan. 668. 153 Pac. 528. Contra, Daly v. Bernstein, (New Mex.) 28 Pac. Rep. 764, and Wallach v. Riveraide Bank, 200 X. Y. 434, 100 N. E. 50. "Black v. Croft, 51 Ga. 368; McCool v. Jacobus, 7 Rob. (N. Y.) 115: RECOVER OR DETAIN PURCHASE MOXEY OX FAILURE OF TITLE 653 raised by the purchaser and the vendor agreed to refund the pur- chase money " if it should be adjudged that he had no legal right to sell, and by reason thereof the purchaser should be compelled to give up the premises," it was held that the purchaser could not detain the purchase money unless he had been actually or con- structively evicted. 96 If the purchaser assumes, as a part of the consideration, the payment of an incumbrance upon the property, the existence of such incumbrance is, obviously, no objection to the title. 97 He is, in such case, chargeable with notice of the contents' of the instrument constituting the incumbrance, and cannot avoid his T*urney v. Hemmenway, 53 111. 97. In Swindell v. Richey, 41 Incl. 281, it appeared that the' owners of land, at a sale thereof by a commissioner, had agreed to pay off a ditch assessment and save the purchaser harmless there- from, and it was held that the purchaser might set off the assessment against the purchase money in a stiit therefor by the commissioner. In Ganz's Appeal, (Pa. St.) 15 Atl. Rep. 883, it was held that a purchaser might set bff against the purchase money the amount paid by him to remove outstanding interests, but that he must pay the balance of the purchase money to the vendor. The fact that the vendor contracted to remove the outstanding interests but failed to remove a part of them, does not affect his right to recover subject to the purchaser's right of set-off. Where a sub-purchaser assumes the payment of a balance of purchase money due by his vendor to the original vendor, he cannot object to the title on the ground that it is incumbered by a mortgage in favor of such original vendor. Campbell v. Shrum, 3 Watts (Pa.), 60. 96 Failing v. Osborne, 3 Oreg. 498. 97 Feist v. Block, 100 X. Y, Supp. 843, 116 App. Div. 211. For circumr stances under which evidence is admissible to show that the purchaser agreed to assume certain intumbranceg on the property, see Riggins v. Post, (Tex. Civ. App.) 172 S. W. 210. A purchaser, subject to a mortgage in a specified amount, cannot refuse to perform on the ground that the specified 1 amount is secured by two mortgages instead of one. Greenfield v. Mills, 107 N". Y. Supp. 705, 123 App. Div. 43. Nor because of the failure of the mortgage subject to which he pitrchased, to show the datp of its maturity and the rate of interest on the debt secured. Hal pern v. Fisch, 101 N. Y. Supp. 1019, 116 App. Div. 479. Nor because of unusiial covenants in the mortgage. Baucher v. Stewart, 122 X. Y. Supp. 202, 136 App. Div. 844. If the pur- chaser fails to disclose, before the closing day, his intention not to assume an incumbrance on the property, the vendor is entitled to a reasonable time in which to removie the incumbrance. Schuler v. Dooley, 134 X. Y. Supp. 9-9, 149 App. Div. 814. A purchaser subject to a mortgage is entitled to rescind ?f foreclosure proceedings had been begun at the time of his purchase. Wacht v. Hart, 105 X. Y. Supp. 78, 120 App. Div. 189. 654 MARKETABLE TITLE TO REAL ESTATE. purchase, in the absence of deception or fraud, because he did not acquaint himself with the particular terms of the instrument and finds them to be different from what he had supposed. 98 If the purchaser buys knowing that the vendor has only an equitable title, he cannot detain the purchase money or recover back such of it as may have been paid. It may be that the vendor will have the legal title by the time the purchase money is paid." It may be doubted whether the purchaser would be permitted to detain the purchase money even if he bought believing that the vendor has the legal title, unless time were of the essence of the contract, or it should appear that the purchaser would be injured by delay in getting in the legal title. The fact that the incum- brance of which the purchaser complains is a matter of public record, does not affect the right to rescind. 1 The purchaser seeking to be relieved from his bargain on the ground that the title is defective, need not aver that he was igno- rant of the defect at the time of the sale. It is for the seller to allege and prove that the purchaser was aware of the condition of the title. 1 247. CHANCING BARGAINS. The right of the purchaser to rescind an executory contract for the sale of lands by recovering back the purchase money, or detaining that which remains unpaid, depends of course upon the nature of his contract with the vendor. The right of the purchaser in general to an indefeasible title has been elsewhere considered. 8 It is only necessary to say here that the purchaser is bound to complete his contract if both parties were fully advised of objections to the vendor's title, and the purchaser made a chancing bargain, taking the risk of the assertion of ad- verse claims. 1 In uch a case ho has neither the right to rescind * Frltcnstein v. Ernst, 07 X. Y. Supp. 37ft. 113 App. Div. 903, distinguished in Oppenheim v. McOovern, 100 X. Y. Supp. 712, 115 App. Div. 135. Smith v. Hayne*. 9 Me. 128. 1 Judon v. Wn*. 11 Johns. (X. Y. i 526, 6 Am. Dec. 392; Daly v. Bern- stein (New Mex.) 28 Pac. Rep. 764. Taul v. Bradford, 20 Tex. 264; Hurt v. McReynold*, 20 Tex. 595. Ante, I 5 and post. I 2S3. Ewart v. Bowman. 70 S. C. Rep. 357. 49 S. E. Rep. 867: KUis v. Anderton, 88 N. C. 472. It in true the Hirle was by an administrator in this case tinder an order of court, 00 that the rule caveat cmptor applied; but no distinction RECOVER OR DETAIN PURCHASE MONEY ON FAILURE OF TITLE 655 the contract nor to require a conveyance with covenants for title, because it is the intention of the parties that the vendor shall be relieved from all responsibility or liability of any kind in respect to the title. Many titles are publicly known to be doubtful and are bought and sold with that understanding. There have been in- stances in which the purchaser has bought such a title, taken a quit-claim deed, and afterwards sold and conveyed at a profit to a person seeking a like opportunity of gain and taking the risk of losing the premises. Consequently nothing is better settled than that in such a case the purchaser cannot refuse to complete the contract on the ground that the title is bad. 5 But the burden will be upon the vendor to show that the purchaser took the risk of the title. 6 The purchaser, however, will not be deprived of his right to require a conveyance with covenants for title by the mere fact that he buys with knowledge that the title is doubtful, for it may be that the covenants he is to receive induce him to enter into the contract. 7 The burden will be upon the vendor to show that the purchaser, seeking to detain the purchase money, took the risk of the title. 8 I'f the vendor informs the purchaser that he has no title, and sells merely his possession, the purchaser cannot recover back the pur- chase money on the ground that the title has failed ; first, because is perceived between a case in which the purchaser expressly agrees to take such title as he can get, and one in which he buys, knowing that if the title is bad he will be compelled to take it. See, further, Twohig v. Brown, 85 Tex. 55, 19 S. W. Rep. 7fi8; Cooper v. Singleton, 10 Tex. 267, 70 Am. Dec. 333; Stewart v. Kreuzer, 127 Md. 1, 05 Atl. 1052; Bushong v. Scrimshire, (Tex. Civ. App.) 172 S. W. 155. There would seem to be no more doubt about the proposition that the purchaser cannot recover back or detain the purchase money when the contract is executory, if he took the risk of the title, than in a case in which he accepts a quit-claim conveyance of the premises, knowing that the title is bad or doubtful. The only practical difference between the two cases would seem to be that the acceptance of the quit- claim with notice, conclusively shows that he took the risk of the title, while in the case of an executory contract the burden devolves on the vendor to show an acceptance of the risk. , 5 Ante, 11. Jones v. Taylor, 7 Tex. 240, 56 Am. Dec. 48; Neel v. Prickett, 12 Tex. 137; Winne v. Reynolds, 6 Paige (X. Y.), 407, diet. Kerney v. Gardner, 27 111. 162; Maxfield v. Bierbauer, 8 Minn. 413 (367). Littlefield v. Tinsley, 26 Tex. 353. 7 Ante, 80. 8 Twohig v. Brown, 85 Tex. 55, 19 S. W. Rep. 768. 656 MARKETABLE TITLE TO REAL ESTATE. he gets all to which he is entitled under the contract, and again, because the money is voluntarily paid, with full knowledge of the facts, and there can be no imputation of fraud or mistake. 9 248. EFFECT OF ACCEPTING TITLE BOND. The fact that the purchaser took from the vendor a bond conditioned to make title to the premises, commonly called a "title bond," does not, when the condition of the bond has been broken, deprive him of the right to recover back the purchase money, co nomine, nor will he be driven to an action on the bond for damages, merely because he did not abandon the contract within a reasonable time after discovery of the vendor's want of title, for it may be that he had reason to believe that the vendor would perfect the title. 10 The right of the purchaser to resist the payment of the purchase money on failure of the title, where the contract is executory, has been denied in a case in which the purchaser took a bond condi- tioned to make title with covenants of warranty, and had not hern evicted by the adverse claimant. Practically, the acceptance of the title bond by the purchaser was given the same effect, as respects the detention of the purchase money, as the acceptance of a conveyance with covenants of warranty. 11 There are, how- *Vest v. Weir, 4 Bl. (Ind.) 135. Here the vendor was n mere trespasser on the land. He sold his possession to the plaintiff fr .*:!~>o, tellinjr him, at the time, that he had no title, and that the land helonjred to the I'nited States. The decision in this case was approved in Major* v. IJrush. 7 Ind. 235, and there di*f uifruished from Hawkins v. Johnson. 4 Bl. (Tnd.) 21. 'Hurst v. Means, 2 Sneed (Tenn.), 546; Bellows v. (In ok, 2') Ark. 424. "Coleman v. Rowe, 5 How. (Miss.) 460, 37 Am. Dec. H54, the court say- injr: "If, then, there has IMTII no fraud, 7ior any eviction, and the agreement is executed, tlio vcndc> can have no claim to relief on the mere ground of a failure of title. 1 Johns. Cli. (X. Y.) 213. Hut as in the present case the deed has not been delivered, the eontraot remains executory, and a different rule, it is Raid, must prevail. This* distinction is laid down and supported liy the court in the case of Miller v. I.onjr. 3 A. K. Marsh. (Ky.) 335. In that rase the ripht of the vendee to be relieved, where the deed ha* l>een delivered, in denied, hut it is said (ob. diet.) to be otherwise where the -"ii- tract is e\e.-ut,,ry. to execute the deed in future. In the first case the court recognize* the general rule laid d.\\n. that the vendee must resort to his remedy at law upon his covenants. P.ut in cases like the present, where the vendee take* the precaution to secure himself l>y a penal hond covenanting to convey a title with full covenant*, and that appears to he the oonsid.-ra tion of his promise to pay the money, though we may consider the covenant to convey as an executory contract, yet it is difficult to OMMti* how that 657 ever, several oases in which the opposite view has been taken. 12 If the purchaser be evicted from part of the premises covered by the title bond, he will be entitled to detain a proportionate part of the purchase money. 13 If the vendor execute a title bond, it would seem that the pur- chaser should not be allowed to surrender the possession, rescind the contract and recover back the purchase money, on the ground that the title is bad or unmarketable, until the condition of the bond has been actually broken. If, however, that condition be broken, if the vendor be unable to make title on the day specified, and the purchaser be ready, able and willing to complete the con- tract, he may rescind and recover back the purchase money already paid. 14 circumstance can vary the rule as to relief. In the latter case the vendee has his remedy at law upon the covenants in the bond, and he would seem to be equally subject to the general rule to resort to that remedy, if there is no fraud nor eviction." See, also, McGhee v. Jones, 10 Ga. 127 ; Black v. Walker, 98 Ga. 31, 26 S. E. Rep. 477; Johnson v. Dorough, 99 Ga. 644, 27 S. E. Rep. 187; Preston v. Walker, 109 Ga. 290, 34 S. E. Rep. 571; Foute v. Elder, 109 Ga. 713, 35 S. E. Rep. 118; Mallard v. Allred, 106 Ga. 503, 32 S. E. Rep. 588; Home v. Rogers, 110 Ga. 362, 35 S. E. Rep. 715; Strong v. Waddell, 56 Ala, 471, 473, dictum. Coleman v. Bank, 115 Ala. 307, 22 So. Rep. 84; Roach v. Rutherford, 4 Des. (S. C.) 126, 6 Am. Dec. 606. "Hurst v. Means, 2 Sneed (Tenn.), 546. Bellows v. Cheek, 20 Ark. 424; Dunnivan v. Hughes, 86 Ark. 443, 111 S. W. 271; Henderson v. Fields, 143 Ga, 547, 85 S. E. 741; Kennedy v. Smith, 10 Ga. App. 644, 82 S. E. 155; Mobley v. Keys, 13) Sm. & M. (Miss.) 677; Brittain v. McLain, 6 Ired. Eq. (N\ C.) 165; Benson v. Coleman, 8 Rich. L. (S. C.) 45; Neel v. Prickett, 12 Tex. 137. (Compare Sayre v. Mohney, 30 Oreg. 238, 47 Pac. Rep. 197.) In Georgia it has been held that the obligee in the bond could not rescind nor detain the purchase money, unless he could show clearly a paramount outstanding title against the obligor, and also show fraud on his part, or that he is insolvent, or a non-resident, or show other facts which would authorize interference with the contract by a court of equity. Black v. Walker, 98 Ga. 31, 26 S. E. Rep. 477; Newton v. Bower, 146 Ga. 524, 91 S. E. 684. 13 Freeman v. Bow, 33 Ky. L. R. 254, 1O9 S. W. 877. "Smith v. Lewis, 26 Conn. 110; Clark v. Weis, 87 111. 43, 29 Am. Rep. 60; Hough v. Rawson, 17 HI. 588; Smith v. Lamb, 26 111. 396, 79 Am. Dec. 381; Sanderlin v. Willis, 98 Ga. 278, 25 S. E. Rep. 437; Kares v. Oovell, ISO Mass. 206, 62 X. E. Rep. 244. In Miller v. Owens, Walk. (Miss.) 245 (1826), the vendor and his wife sold to the purchaser certain interests in real property, among others that of an infant child of the wife by a former 83 MARKETABLE TITLE TO KEAL ESTATE. A condition in the bond that the obligor shall convey a good and clear title free from all incumbrances, refers to the title which is to pass by the deed and not to the state of things existing at the time of the execution of the bond. Hence, the condition is broken by the condemnation of a part of the premises for the purpose of widening a highway after the execution of the bond, and the obligee is entitled to recover back payments made by him on the land. 15 240. INQUIRY INTO CONSIDERATION OF SEALED INSTRU- MENT. At common law the consideration of a sealed instrument could not be inquired into; consequently, in an action on a bond given for the purchase money of land, the defendant could not show that the consideration had failed for want of title in the vendor. 16 This rule, however, has been very generally changed throughout the United States by statutes abolishing all distinctions between sealed and unsealed instruments, 17 or allowing failure of consideration to be set up as a defense to an action on an instru- ment under seal. 18 250. RIGHT TO ENJOIN THE COLLECTION OF THE PUR- CHASE MONEY WHILE THE CONTRACT IS EXECUTORY. If the purchaser has had no opportunity to set up the defense of want of title in the vendor in an action for the purchase money, he may have relief in equity by way of injunction. But he will not, in some of the States, be entitled to that remedy, where there is a judgment for the purchase money, unless he had no opportunity husband, and executed a bond to make title or indemnify the purchaser :i-_';iiii-t any claim of the infant. While the contract was yet executory, the purchaser refused to pay the purchase money on the ground of the defective title, and judgment was rendered in his favor by the court hclow. Thin wa* reversed on appeal, the court saying that though the vendor " could not sell the right of another person to a tract of land to the prejudice of the real owner, yet having possession and an undivided interest in the premises, and having sold each interest separately, Uut given possession of the whole to the purchaser, and, a it appears, the purchaser Bought the contract and took the security he required, and he and his heirs remaining in the quiet and peaceable poNseswion of the premises, we can see no reason why he should not pay the purchase money." "Kares v. Owell, 10 Mans. 206, ft2 N. E. Rep. 244. "Colonial! v. Sanderlin, 5 Humph. (Tenn.) 661. " Mullimi v. Jones. 1 Head (Tenn.h 510. "Rawle Oovtu. (5th ed.) 32. 1 ). RECOVER OR DETAIN PURCHASE MONEY ON FAILURE OF TITLE 659 to make his defense at law. 19 In this respect the rule appears to he the same whether the contract is executed or executory. The vendor, having the legal title, may, of course, maintain ejectment at any time against the purchaser if he fail to pay the purchase money. Failure of the title, it is apprehended, would be no de- fense to such an action. It would seem, however, that if the pur- chaser were entitled to detain the premises in order to enforce his lien for the purchase money paid, or if, under the contract, he had a right to compel the vendor to remove incumbrances or ob- jections to the title, an injunction would lie to stay proceedings in the action of ejectment. The fact that the purchaser had a remedy over by action at law on a title bond executed by the vendor has been held no ground for refusing an injunction against the collection of the purchase money. 20 The injunction will not be granted if the difficulty in 19 (As to the Tight to an injunction where the contract has been executed by a conveyance with covenants for title, see post, ch. 34.) High on Injunc- tions (3d ed.), 410; Shipp v. Wheless, 38 Miss. 646; MtLaurin v. Parker, 24 Miss. 509; Kebler v. Cureton, Rich. Eq. Cas. (S. C.) 143; Bartlett v. Loudon, 7 J. J. Marsh. (Ky.) 641; Dudley v. Bryan, 6 J. J. Marsh. (Ky.) 231; Moore v. Hill, 59 Ga.-760; Bullitt v. Songster, 3 Munf. (Va.) 54. In this case the vendor had agreed in writing that if the purchaser should be evicted from any part of the land the purchase money should be cor- respondingly abated. A purchaser paying off incumbrances after the judg- ment against himself for the purchase money, may have an injunction against the judgment if the vendor is insolvent. Shelby v. Marshall, 1 Blackf. (Ind.) 384. An injunction against proceedings to collect the purchase money will not be granted for the purpose of allowing the purchaser to avail himself of counterclaim, offset or unliquidated demands, which might be availed of in a defense to the action at law. Freize v. Cliapin, 2 R. I. 429. Xor if the plaintiff merely seeks damages in equity. Robertson v. Hogshead, 3 Leigh (Va.), 667. High on Injunctions (3d. ed.), 411. If the purchaser's obliga- tion for the purchase money provide that it shall not be payable until certain disputes respecting the title are ended, the pendency of those disputes con- stitutes no ground for an injunction against an action on the obligation, because the fact that the disputes are not ended is a complete defense at law. Hence, it has -been said that in a contract to pay money on a con- tingency, it .being necessary to allege and prove the happering of the con- tingency before a judgment at law can be obtained, an injunction against the judgment, if suffered by the payor, cannot be sustained on the ground that the contingency has not occurred. Allen v. Phillips, 2 Litt. (Ky.) 1. "Brittain v. McLain, 6 Ired. Eq. (N. C.) 165; Heavner v. Morgan, 41 W. Va. 428, 23 S. E. Rep. 874. 660 MARKETABLE TITLE TO REAL ESTATE. obtaining title was brought about by the neglect of the purchaser himself; as where he failed to pay the purchase money in the life- time of the vendor so that proceedings in chancery to obtain the title from infant heirs at law became necessary. 21 Xor will the injunction be granted on the ground that the title has failed, if it appear that the rights of all adverse claimants have become barred by the Statute of Limitations. 22 If the vendor fraudulently concealed or misrepresented the state of his title an injunction will lie to restrain the collection of the purchase money ; B and that too, it is apprehended, without regard to the fact that the fraud may be or might have been set up as a defense of law. 54 The remedy in equity in such cases is concur- rent with that at law. Tn Pennsylvania the vendor is entitled to a judgment for the whole of the purchase money, but a stay of execution will be awarded to the purchaser until the vendor removes any lien or incumbrance upon the premises for which he is liable. 25 The remedy by injunction against proceedings to collect the pur- chase money is not necessarily in disaftirmance or rescission of the contract; for it may be that the object of the injunction is to com- pel the vendor to remove defects in the title, or to apply the pur- chase money to the discharge of incumbnmees, or to enforce some equity in behalf of the purchaser which does not require a rescis- sion of the contract. 2 * In such case it is customary to grant a temporary injunction, and of course there need- be no surrender of "Prout v. Gibson, 1 Crunch (C. C.), 389. "Amick v. Bmvyer, 3 W. Va. 7; Piedmont Coal Co. v. Green, 3 W. Va. 54; Peers v. Harriett, 12 Grat. (Va.) 410, where the injunction unit had linpered on the docket until defects in the title were cured 1 hy the statute. "Starke v. ITcnderHon, 30 Ala. 438: Lanier v. Hill. 25 Ala. 554. In hoth these en sen the vendor, an administrator c. t. a., had falsely represented that he had authority under the will to Bell. "Pmt. eh**. 29, 34. I 329. Jackson v. Knipht, 4 Watts & Serj?. (Pa.) 412, "Thus in Price v. Hrowninp, 4 Orat. (Va.) 72. an injunction was pranted until the extent of the purchaser'* lotwet* from incumbranceH on the premises could he awrrtained. And in Reeves v. Dickey, 10 drat. (Va.) 138, the cause wan remanded to the lower court with i net ructions to prant a temporary injunction until it eould he nscectained whether the title could be perfected, and to perpetuate the injunction if it appeared that a pood title could never be made. RECOVER OK DETA1X PURCHASE MOA T EY OX FAILURE OF TITLE the premises by the purchaser. But if he seeks a perpetual in- junction, which is in effect a rescission of the contract, he must restore the premises to the vendor. He cannot have both the in- junction and the benefit of his purchase. 27 But while a perpetual injunction substantially rescinds the contract, the complainant must pray a rescission in terms ; otherwise it will be presumed that he intends to keep both the premises and the purchase money, and the bill will be dismissed. 28 If the purchaser buys with knowledge that the title is defective, he cannot have a perpetual injunction unless it appear that the title cannot be perfected. 29 This seems a reasonable rule, for it may be that the purchase was made with the understanding that the title should be perfected before payment of the purchase money might be compelled. But if the contract was one of pure hazard, the purchaser to get merely such title as the vendor had, there can be no doubt that the injunction should be denied. 30 If by the terms of the contract payment of the purchase money is a condition precedent to the purchaser's right to demand a deed, it has been held that a bill to enjoin the collection of the purchase money on the ground that the title has failed should be dismissed, unless the complainant alleges that he offered to pay the purchase money and demanded a deed. If, however, he had made such tender and demand, and the defendant had refused, or was unable to convey a good title, the collection of the purchase money would "Edwards v. Strode, 2 J. J. Marsh. (Ky.) 506; Markham v. Todd, 2 J. J. Marsh. (Ky.) 364, where it was held that the court might at the time of perpetuating the injunction, decree that the premises be restored to the vendor. Brannum v. Ellison, 5 Jones Eq. (N. C.) 435. 28 Williamson v. Raney, Freem. Ch. (Miss.) 112. 29 As to right to injunction under similar circumstances where the con- tract has been executed by a conveyance with covenant for title, soe post, ch. 34. Reeves v. Dickey, 10 Grat. (Va.) 138. In Lucas v. Chapeze, 2 Litt. (Ky.) 31, the complainants had purchased an equitable title with knowledge that a suit by the vendee to obtain the legal title was pending. It was held that an injunction to restrain the collection of the purchase money was properly dismissed in the absence of evidence that the suit to obtain the legal title was not being pursued with reasonable diligence. Williamson v. Raney, Freem. Ch. (Miss.) 112. 30 Carrico v. Froman, 2 Litt. (Ky.) 178, where the purchaser agreed in writing that the purchase money should! not be detained if adverse claims were asserted. 662 MARKETABLE TITLE TO REAL ESTATE. be enjoined until the sufficiency of the title could be determined. 31 If the vendor refuse to convey the land by good and sufficient deed, or refuse or neglect to procure the signature of all necessary parties to the conveyance in order that the title may be perfected, the col- lection of the purchase* money may be enjoined. 33 If the vendor seeks a dissolution of the injunction the burden will be upon him to show that he can convey to the purchaser such a title as the con- tract requires." If an injunction against the collection of the pur- chase money be dissolved on the ground that the title has been or may be perfected by the vendor, neither costs nor damages should bo awarded against the purchaser, the vendor having incurred these by reason of his own default." 251. BIGHTS AGAINST TRANSFEREE OF PURCHASE-MONEY NOTE. The purchaser of a negotiable purchase-money note after maturity takes subject to the vendee's right of defense for want of title to the land. 35 So, also, one who purchases before maturity with notice of the vendee's equities. 38 But a purchaser of the note before maturity for value and without notice, will not be affected by failure of the vendor's title. 37 If the no-te was not negotiable, the purchaser, whether before or after maturity, takes subject to equities between the vendor and the vendee. 38 2 5 2. REFUSAL OF VENDOR TO CONVEY FOR WANT OF TITLE. It has been held in- England that if the purchaser execute a note to "Mitchell v. Sherman, Freem. Cb. (Miss.) 120, where the vendor gave Ix.rul to convoy " a good 1 anil sufficient title, as soon as the entire and full amount of the purchase money should be paid." "Jaync v. Bnick, 10 Grat. (Va.) 211; M<-Koy v. Chiles, 5 T. B. Mon. (Ky.) 2- r )f>, where the vendor failed to procure a relinquishment of his wife's contingent right of dower. Fishhrfck v. Williams, 3 Bibb (Ky.), 342. "Moredock v. WiHinms, 1 Overt. (Tenn.) 325 (257); Moore v. Cooke, 4 Haw. (Tenn.) ft5 (981). "Fishbadc v. Williams, 3 Bibb (Ky.), 342, Each party was decreed to pay his own oosrt*. Porter v. Scobie, 5 B. Mon. (Ky.) 387, reversing the court Mow; I.;ini|>t..n v. t'sher, 7 B. Mon. (Ky.) 67. In Reeves v. Dickey, 10 Grat. (\'.) 13.H. cwts were refused the vendor even though the purchaser knew when he )>ought that the title was defective, VlohnKon v. Si Midi. 6 BaxU (Tenn.) 41. "Knapp v. Lee, 3 Pick. (Mase.) 452; Lamb v. James, 87 Tex. 4S5, 29 S. W. Rep. C7. " Gee v. S.i under.*, 00 Tex. 333. "Timms v. ijliannon, ID Md. 200, 81 Am. Dec. 032. RECOVER OR DETAIN PURCHASE MONEY ON FAILURE OF TITLE 663 secure deferred payments of the purchase money he cannot, if the vendor refuses to convey, rescind the contract by detaining the pur- chase money. He must pay the note and look to his action to recover damages for -breach of the contract. The reason is that the purchaser, by executing a distinct instrument promising to pay a part of the purchase money on a particular day, undertakes to pay on that day at all events. 39 This rule was recognized in a case in ^ew York in which the failure of the vendor to convey was occasioned by his* want of title. 40 It was unnecessary, however, to decide the point in that case, and it may be doubted whether the rule established by the English case would be followed in America, in a case in which the purchaser had a clear right to rescind the contract on the ground that the title had failed. 41 There would seem to be no reason in requiring the purchaser to pay over money to the vendor which he might immediately recover back from him as damages for breach of the contract. 253. BIGHT TO RESCIND AS DEPENDENT ON TENDER OF PURCHASE MONEY AND DEMAND OF DEED. The duty of the purchaser to tender the purchase money and demand a conveyance as a condition precedent to the right to rescind the contract on failure of the title, and to detain or recover back the purchase money, as the case may be, has been elsewhere considered. 42 It may be added here, however, that when the vendor's title is de- fective and the vendee, upon ascertaining it, refuses to take such '"Spiller v. Westlake, 2 B. & Ad. 155, 22 E. C. L. 74; Moggridge v. Jones, 14 East, 486, 3 Camp. 38; Freeligh v. Platt, 5 Oow. (N. Y.) 494; Chapman V. Eddy, 13 Vt. 205. 40 Lewis v. McMillen, 41 Barb. (N. Y.) 430. 41 It was intimated by PARKE, J., in Spiller v. Westlake, supra, that the defendant might have resisted the payment of the note in that case if the circumstances had been such that the money in dispute might have been recovered back if the defendant had paid it as a deposit, which is as much as to say that the defendant might have resisted the payment of the note if he had been entitled to rescind the contract. 43 Ante, 86. Leach v. Rowley, 138> Cal. 709, 72 Pac. Rep. 403L The mere existence of a mortgage on the property sold does not relieve the purchaser from his obligation to tender the purchase money. Whitney v. Crouch, 172 N". Y. Supp. 72,9. See the case of Noyes v. Brown (Minn.) 171 1ST. W. 803, for an instructive review of cases upon the question when the covenants, in the respect stated in the text, are to be considered non-concurrent and independent. 664 MARKETABLE TITLE TO BEAL ESTATE. title and the vendor, instead of taking measures to cure the defects, simply holds himself ready to convey such title as he has and requests the vendee to accept it, giving him notice that he will be held for any loss, the vendee is not called upon to make any other or further tender or offer of payment in order to rescind the contract by detaining the purchase money or recovering back the payments made. 43 If the vendor fails to take steps to cure defects in the title, pointed out by the purchaser, until the time for curing such defects expires, the purchaser is not bound to tender full performance before suing to recover his deposit. 44 In a case in which there was evidence that the purchaser had paid part of the purchase money and was willing and ready to pay the balance and to accept a deed, which deed, however, was not tendered by the vendor, and could not be given because the title was bad, it was held that the failure of the purchaser to tender the purchase* money and demand a deed did not affect his right, to rescind, though there had been no absolute refusal by the vendor to make a deed. 45 If, after tender of the purchase money and demand of a conveyance, the vendor do not perform the contract on his part, the purchaser is not bound to demand the return of lii- purchase money or notify the vendor of his intent to rescind the contract before he can maintain an action to recover back what he had paid. 4 ' It has been held that if payment of the purchase money and the conveyance of a good title to the purchaser are by the contract to he >imultaneou8 or concurrent acts, the purchaser may resist the Hartley v. James, 50 N. Y. 41. See, also, Hanson v. Fox, 155 Cal. 100, 1K Par. 4 Vi. l::j Am. St. Kep. 72. 20 L. R. A. (X. S.) 338; Joyce v. ShanYr. !i7 nil. .'5.76, 32 Par. 320. In MrCullmifrh v. Boyd. 120 Pa. St. 552. 14 Atl. K.-p. 438, it wa held that the purchaser must aver payment or tender of tin- pimhase money in full, or set forth a reason f .Johns. (N. Y.) 86, 4 Am. l)cv. 320; Camp V. Morse, .-. Dt-itio IX. Y.), 104; Van Benthuysen v. Cni>pcr. S Johns. (X. Y.) 259; Frost v. Smith, 7 BOHW. (N T . Y.) 108; Chalfield v. Williams, 85 Cal. 518, 24 Pac. Rep. 830. RECOVER OK DETAIN PURCHASE MONEY ON FAILURE OF TITLE 665 payment of the purchase money though he has not been evicted from the premises, unless the vendor shows that he has tendered to the purchaser such a conveyance and title as the contract re- quires. 47 If, however, under the contract, the purchaser is obliged to pay the purchase money before the making of the conveyance he cannot refuse so to do on the ground that the title is bad, with- out surrendering or offering to surrender the premises. 48 If under the contract the purchaser is bound to tender the purchase money before he can rescind, the mere abandonment of the pos- session without such tender, demand- of title and refusal, will constitute no defense to an action for the purchase money. 49 If the contract provide that the purchase money shall not be paid until a good title is tendered, or if the vendor permits the pur- chaser to take possession without any agreement as to when the purchase money shall be paid, the purchaser cannot be required to tender performance or bring the money into court, as a condi- tion precedent to his right to rescind the contract on failure of the title. 50 There are cases which hold that if the purchaser executes his notes for the purchase money, payable in installments, and takes a bond from the vendor conditioned to make title when the last in- stallment is paid, the covenants are independent, and the purchaser cannot detain any of the installments on the ground that the title is defective. 51 the reasons being, among others, that the vendor may "Feemster v. May, 13 Sm. & M. (Miss.) 275, 53 Am-. Dec. 83"; Wiggins v. McGimpsey Id. 532, citing Robb v. Montgomery, 20 Johns. (N. Y. ) 1*5; Sage v. Ranney, 2 Wend. (N. Y.) 534; Peques- v. Moshy, 7 Sm. & M. (Miss.) 340. But see McMath v. Johnson, 41 Miss. 439, and cases cited* infra. If, by the contract, the purchase money is to be paid on a day fixed, and the deed is to be executed at a later day, the covenants are independent, and it is no defense to an action for the purchase money that the conveyance had not been executed and tendered to the purchaser. Vandiver v. Reynolds, 174 Ala. 582, 57 So. 462. 48 Cases cited in last note. George v. Stockton, 1 Ala. 136. 49 Clemens v. Loggins, 1 Ala. 622. 5 -2 Warvelle Vend. 915, 916. 51 Ante, 8'8. Post, ch. 3*2. 2 Warvelle Vend. 843. Gibson v. Newman, 1 How. (Miss.) 341; Coleman v. Rowe, 5 How. (Miss.) 460, 37 Am. Dec. 164; Clopton v. Bolton, 23> Miss. 78; McMath v. Johnson, 41 Miss. 43<9, disapprov- ing Peques v. Mbsby, 7 S. & M. (Miss.) 540, and Feemster v. May, 13 S. & M. 84 GGG MAKKETABl.i: TITLE TO KEAL ESTATE. perfect the title before all of the purchase money is paid, ji and that it may be that he looks to the purchase money itself as a fund for the removal of objections to the title. CJ If, however, the vendor were insolvent or for any other reason the purchaser's rights would be greatly endangered by a rigid observance of the foregoing rule, it is apprehended that the purchase money might be paid into court to be there applied to the clearing up of the title or returned to the purchaser if it should be found that no title could be had. It has also been held that if the vendor execute a title bond con- ditioned to convey on payment of purchase money, such payment constitutes a condition precedent to the conveyance of the title; so that if, after default in the payment of the purchase money, the vendor conveys the premises to a stranger, thereby incapacitat- ing himself from conveying to the purchaser, that fact constitutes no defense to an action for the purchase money. The purchaser must pay the purchase money and look to his remedy on the title bond. 5 * And if in such case instead of being merely in default in the payment of the purchase money the purchaser, after paying part thereof, abandons the contract, the vendor is free to sell (Miss.) 273, 53 Am. Dec. 83; Drenner v. Boyer, 5 -Ark. 497; Monsen v. Stevenson, 56 111. 335; Hudson v. Swift, 20 Johns. (X. Y.) 25. This, hmv- ever. was an action to recover hack the purchase money; but the principle appears to be the same in either case. Ellis v. Hoskins, 14 Johns. (N. Y.) 3(53; Ixfvrridge v. Coles, 72 Minn. 57, 74 X. W. Rep. 1109. "Greenby v. Checvi-rs, 9 Johns. (X. Y.) 127. "Green v. Green, 9 Cow. (N. Y.) 46; Ellis v. Hoskins, 14 Johns. (N. Y.) 363. ** Foster v. .Jared. 12 111. 454. the court saying: "The conveyance of the land ami the payment of the note in question are not concurrent acts. The payment of the note is to precede the conveyance. The vendor is not bound to execute a conveyance until all the note* are paid. The doctrine that in the CMe of dependent covenants neither party can rex-over miles* lie has fully per- formed nr offered to perform on his part has, therefore, r.u application to this case. The defendant cannot put the vendor in default until he has paid or offered to jHiy the entire purchase money. He undertook to pay the first, two installment* before he wan to receive a conveyance. He cho e. as re.-|K?i-ts thin portion of the consideration, to rely on the covenants of the vendor (in the title bond) to compel the execution of a deed. It is no excuse that the latter has now no existing capacity to make a {food title. It will lie enough if he I-..- the title when the defendant, has the right to demand a conveyance. He may require a |>Tfet title In-fore he can be called on to convey." Citing Sage V. Kanney, '2 Wend. ( N*. Y.) 532. KECOVElt OU DETAiA' PUKC11ASE MONEY ON FAlLUitE OF TITLE 6G7 and convey the premises to whom he chooses, and the purchaser cannot, upon such conveyance, recover back any of the payments made. The purchaser by his conduct forfeits what has been paid. 55 Where the purchase money is payable in installments, and the vendor accepts a payment after all the installments are due, he thereby waives his right to put the purchaser in default and to declare a forfeiture. In such case payment of the purchase money becomes a dependent and concurrent condition, and the vendor must tender a deed before he can declare a forfeiture. 56 The purchaser cannot be put in default until the vendor has complied with his agreement to furnish an abstract of title; and the burden devolves on the vendor to show waiver of such agree- ment by the purchaser. 57 We have seen that in cases in which the payment of the purchase money is not by the express terms of the contract made a condition precedent to the right of the purchaser to demand a conveyance of an indefeasible title, no such payment? or tender of payment need be made as a condition precedent to the right to rescind upon an absolute and undisputed failure of the title. 08 This rule applies as well where the purchaser has only an "option" to purchase as where the purchase has been actually made. 59 254. OFFER TO RESCIND. As a general rule the action to recover back the purchase money on failure of the title, or a de- fense of an action to recover the purchase money on the same grounds, cannot be maintained by the purchaser unless he has given notice to the vendor of his intention to rescind, and has offered to surrender whatever he has received under the contract. 60 53 Rounds v. Baxter, 4 Me. 454; Seymour v. Dennett, 14 Mass. 266. "Boone v. Templeman, 158 Cal. 290, 110 Pac. 947, 139 Am. St. Rep. 12G. Hayt v. Bentel, 164 Cal. 680, 130 Pac. 432. "Liebling v. Renfer, 211 111. App. 370. M Ante, this section. 69 Burke v. Davies, 85 Cal. 110. .1 Sugd. Vend. (14th ed.) 243; 2 Warvelle Vend. 883; Herbert v. Stan- ford, 12 Ind. 503, citing Pope v. Wray, 4 M. & W. 451; McQueen v. Statt Bank, 2 I ml. 413, which were all cases of sales of personal property. Havens v. Goudy, 1 Ohio, 449; Williams v. Thomas, 7 Kulp (Pa. Com. PL), 371; Higley v. Whittaker, 8 1 Ohio, 201; Mkillins v. Bloomer, 11 Iowa, 360; Carney v. Newberry, 24 111. 203, case of personal property. 668 MARKETABLE TITLE TO HEAL ESTATE. The reason of the rule is that the vendor must be given an oppor- tunity to remove objections to the title and to perform the contract on his part. It has been held, however, that if the purchaser did not take possession and has received nothing under the con- tract, he may recover back or detain the purchase money without an offer to rescind.' 1 255. PLEADING AND PROOF. It has been held that the purchaser seeking to recover back or detain the purchase money must set forth in his pleadings facts showing want of title in his vendor, and that a general averment that the title is bad is insuffi- cient. 62 But if the contract be executory and the objection to tin- title is that it is doubtful or unmarketable, the better opinion seems to be that the burden of proof is on the vendor to show prima facie that the title is good. 63 But, obviously, the vendor cannot be compelled to show the non-existence of any and every fact which might invalidate his title, for there would be prac- tically no end to such an inquiry. He could hardly be compelled to offer proof of the competency of every grantor in his chain of title. Having shown a record title free from objection on its face, the burden shifts to the purchaser, who should then point out the defect of which he complains. 64 The purchaser cannot, on appeal from a judgment against him for the purchase money, object that the title to the estate was defective or incumbered, unless he made that defense in the court below. 65 "Herbert v. Stanford, 12 Ind. 503, and cases cited mipra. "Walker v. Towns, 23 Ark. 147; Copeland v. Lawn, 10 Mo. 206. Tn an action to recover purchase money, a plea that the vendor had no title when IIP \va required to convey, and that the premises were incumbered by a niortjrape, is bad for duplicity. Camp v. Morse, 5 Den. (N. Y.) 161. "Nefrley v. Lindsey. 67 Pa. St. 217, 5 Am. Rep. 427, SHARSWOOD, J., saying: " HIIW can a defendant (purchaser) show defects in the plaintiff's title mile-* it i- produced to him. It is not enough to say that he may resort to the records. He must have some clue to trace it there. Besides, there are many -*ary facts as to which the records will give him no information, MK-II .,- dew-cut.-' iindtff tli.' int.-~t.it.- la\\~. the death of truants for life, and .th.-r- of a uimilnr kind." Ante, | 117. Hollifteld v. Landnim, (Tex. Civ. App.) 71 S. W. Rep. 970, iiiii^ tlie text. -vih v i: K le. 1 Watte 4 S. (Pa.) 40. RECOVER OR DETAIL PURCHASE MOSEY ON FAILURE OF TITLE 669 The purchaser seeking to recover his deposit must allege in his complaint that he is ready, willing, and able to pay, and has offered to pay the purchase money, and that he has demanded a deed from the vendor. 66 But such allegations are not neces- sary when it appears that there are defects in the title which were not, on objection by the purchaser, removed by the vendor and which could not be removed by him within a reasonable time. 67 255-a. STATUTE OF LIMITATIONS. The right of the pur- chaser to recover the paid purchase money accrues when the vendor tenders a deed and the purchaser rejects the deed because of defects in the title ; and the Statute of Limitations begins to run at that time. 68 Snowden v. Derrick, 14 Cal. App. 309, 111 Pac. 757; Kister v. Pollak, 109 N. Y. Supp. 204, 125 App. Div. 226. ^Snowden v. Derrick, 14 Cal. App. 309, 111 Pac. 757. "Reed v. Sefton, 11 Cal. App. 88, 103 Pac. 1005. CHAPTER XXV. OF THE OBLIGATION OF THE PURCHASER TO RESTORE THE PREM- ISES TO THE VENDOR, GENERAL PRINCIPLES. $ 2f>6. VENDOR MUST BE PLACED IN STATU QUO. 257. RESTORATION OF PREMISES A CONDITION PRECEDENT TO RESCISSION. 258. RULE IN PENNSYLVANIA. 259. ESTOPPEL OF PURCHASER TO DENY VENDOR'S TITLE. 259-a. RESTORATION OF THE PREMISES IN CASES OF FRAUD. 8 260. WHEN PURCHASER NEED NOT RESTORE THE PREMISES. PUR- CHASER'S LIEN. 261. OTHER EXCEPTIONS. 262. RESTORATION OF THE PREMISES WHERE THE CONTRACT IS VOID. 263. 25G. GENERAL PRINCIPLES. The next cardinal rule which we shall consider as controlling the rights of the parties, when the purchaser seeks to avoid the contract on failure of the title, is as follows: PROPOSITION II. A purchaser of lands in undisturbed posses- sion cannot, as a general rule, while the contract is executory, recover bad' the purchase money on failure of the title, or resist the payment thereof, without restoring, or offering to restore, the premises h> flic vendor, and placing him in statu quo. 1 1 1 Stijjd. Vend. in. p. 407, 472 (6th Am. ed.) ; Nicnlsnn v. Wadsworth, 2 Swaiift. 365; \Vickham v. Ernest, 4 Mndd. 34: Young v. Sincomns, 1 Younpe, 275; Tindal v. Cbbham. 2 Myl. & K. 385; Cope v. William*. 4 Ala. 362; Donaldson v. Waters. 30 Ala. 175: Lett v. Brown, 56 Ala. 550; Wade v. Killoiu/h, 3 Stew. & P. (Ala.) 431; Georpe v. Stockton, 1 Ala. 136; Clemens v. I ...--in-. 1 Ala. 622; Stone v. Cover, 1 Ala. 287; Tankcrsly v. Graham. 8 Ala. 247; HelvenMtein v. Hijrpanon. 35 Ala. 251); Ead v. Murphy. 52 Ala. 520; Svoly v. Scott. 56 Ala. 555; Union Stave Co. v. Smith. 116 Ala. 416, 22 So. Rep. 275; Pray v. Capps. 27 Ark. 160; Haynes v. White. 55 Cal. 30; Hi-k* v. Lovell. 64 Cal. 29, 41) Am. Rep. 679, 27 Par. Rep. 942: Gate* v. M.Uan, 70 Cal. 42. 11 Pac. Rep. 480; Hannan v. McNickle. 82 Cal. 122, 23 Pac. Rep. 271 ; Rhorer v. Bila, 83 Cal. 54, 23 Pac. Rep. 274; Worley v. North- cot t, 91 Oil. 512. 27 Pac. Rep. 767; Booth v. SaflV>ld, 46 Ga. 278; Cherry v. DaviH, 59 Ga. 454; Stimmerall v. Craham, 62 Ga. 720; Preston v. Walker. 109 Ga. 290, 34 S. E. Rep. 571: Mnrtin v. Chamber^ 84 III. 570; Long v. Saunderx, S8 111. 187; (>Hborn v. Dudd. 8 Bl. (Ind.) 467; Wright v. Blackley, [670] OBLIGATION OF PURCHASER TO RESTORE PREMISES TO VENDOR. 671 This proposition is founded upon the plainest principles of equity. The purchaser cannot say to the vendor " our contract is at an end, but I shall continue to occupy the premises until I have no further use for them." : If the rule were otherwise the pur- chaser might retain the possession until the Statute of Limitations should bar the rights of the adverse claimant, and thus acquire the estate without paying any of the purchase money. 3 SoJeng as the purchaser retains possession of the premises, with notice of ob- jection to the title, he is looked upon as waiving the right to re- scind. 4 Another reason why the purchaser cannot sue to recover 3 Ind. 101; Wiley v. Howard, 15 Ind. 169; Dunn v. Mills (Kan.), 79 Pao. Rep. 146, 502i; Reeve v. Downs, 22 Kan. 330; Bodley v. McCord, 4 J. J. Marsh. (Ky.) 483; Peebles v. Stephens, 3 Bibb (Ky.), 324, 6 Am. Dec. 660; Childs v. Lockett, 107 La. 270, 31 So. Rep. 751; Hill v. Samuel, 31 Miss. 307; Shipp v. Wheless, 33 Miss. 647 ; Holladay v. Menefee, 30 Mo. App. 307 ; Davis v. Watson, 89 Mb. App. 15; More v. Smedburg, 8 Paige Ch. (N. Y.) 600; Gale v. Nixon, 6 Cow. (N. Y.) 445; Lewis v. McMillan, 41 Barb. (X. Y.) 420; Wright v. Delafield, 23 Barb. (N. Y.) 498; Tom.pkins v. Hyatt, 28 N. Y. 347; Sayre v. Mohney, 30 Oreg. 238, 47 Pac. Rep. 197; Garvin v. Cohen, 13 Rich. L. (S. C.) 153; Kelly v. Kershaw (Utah), 16 Pao. Rep. 488; Florence Oil Co v. McC'andless, 26 Colo. 534, 58 Pac. Rep. 1084; Horton v. Arnold, 18 Wis. 212, where buildings on the premises had been destroyed by fire, In a few cases, in which the contract had not been executed by a con- veyance, it seems to have been held that the purchaser might detain the pur- chase money on failure of the title, though he had not been evicted from the premises nor had surrendered the possession to the vendor. Lewis v. McMillan, 31 Barb. ('N". Y.) 395; reversed on motion for new trial, 41 Barb. (N. Y.) 420; In Hood v. Huff, 2 Tread. (S. C.) 159 the contract had been executed. In Feemster v. May, 13 Sm. & M. (Miss.) 275, 53 Am. Dec. 83. and Wiggins v. McGimpsey, 13 Sm. & M. (Miss.) 532, the purchaser was held entitled to detain the purchase money, though he was undisturbed in the possession, on the ground that the contract required the vendor to tender a deed conveying a good title before the purchaser could be compelled to pay the purchase money. See ante, 253. Recent cases: Francis v. Shrader, (Cal. App.) 177 Pac. 168; Russell v. Hawxhurst, (Cal. App.) 187 Pac. 146, citing Worley v. Nethercott, 91 Cal. 512, 27 Pac. 767, 25 Am. St. Rep. 209; Halle v. Smith, 128 Cal. 415, 60 Pac. 1032; Powell v. Hunter, 257 Mo, 440, 165 S. W. 1009; Allen v. Adams, 162 Iowa 300, 143 N. W. 1092; Gregory v. Keenan, 256 Fed. 949. 2 More v. Smedfourgh, 8 Paige (N. Y.), 600, 606. 3 Congregation v. Miles, 4 Watts (Pa.), 146. 4 Bellamy v. Ragsdale, 1 B. Mon. (Ky.) 293'; Thompson v. Dulles, 5 Rich. Eq. (S. C.) 370; Hale v. Wilkinson, 21 Grat. (Va.) 75; Rhorer v. Bila, 83 Cal. 51; Brumfield v. Palmer, 7 Bl. (Ind.) 227. 072 MARKETABLE TITLE TO REAL ESTATE. back the purchase money while he is in possession of the land is, that such a suit is a disaffirmance of the contract, and he cannot disaffirm the contract and at the same time have its benefit by retaining possession. 5 And when the vendee is sued for the pur- chase money at law, and the title has failed, he cannot, even under a statute allowing the interposition of equitable defenses in actions at law, disaffirm the contract in part by detaining a part of the purchase money, and at the same time insist upon a conveyance of the lands. lie must make his election between his right to have a specific performance of the contract, and his right to have damages for a breach thereof, or his right to surrender the possession and to recover back so much of the purchase money as he may have paid.' This rule is also an excellent practical test of the bona fi<1rs e money without restoring the premises to the vendor, it has been held, as we have seen, that he may elect to affirm the contract, keep the ]ivmi-i | f ; md recover the Hurst v. Mean*, 2 Swan (Tenn.), 604. Watkins v. Hopkins, 13 Grat. (Va.) 743; Shillrtt v. Orange Humane ty. 7 Grat. (Va.) 297. '2 Siigd. Vend. (7th Am. ed.) 126, not. Timm* v. Shannon, 19 Md. 296. 81 Am. Dec. 662. OBLIGATION OF PURCHASER TO RESTORE PREMISES TO VENDOR. 673 purchase price as damages, if the title has completely failed. 8 If this decision be sound, the rule that the purchaser seeking to recover back the purchase money must restore the premises to the vendor is of slight importance, as it might be evaded by a mere change in the purchaser's pleadings. Of course these observations do not apply where the purchaser seeks to detain the purchase money on failure of the title, for as a general rule the purchaser can maintain no action for inability to convey a good title unless he has paid the purchase money in full. 9 If the purchaser refuse to pay the purchase money on the ground that the title is bad, and at the same time refuse to restore the premises, he is liable to an action of ejectment by the vendor, and may be evicted. 10 And the fact that he has made expensive im- provements on the premises will not justify him in refusing to give up the possession. He should not be encouraged to make 8 Ante, 3. Fletcher v. Button, 6 Barb. (N. Y.) 646. Ante, 1. Clarke v. Locke, 11 Humph. (Tenn.) 300. 10 1 Sugd. Vend. m. p. (14th Eng. ed.) 347; Gates v. McLean, 70 Cal. 42; Garvey v. La Shells, 151 Cal. 52, 91 Pac. 498; Gervaise v. Brooking, 156 Cal. 103, 103 Pac. 329, distinguishing Haile v. Smith, 128 Cal. 415, 60 Pac. 1032. See generally, as to the right of the vendor to maintain ejectment against a purchaser who refuses to pay the purchase money, Jackson v. Mon- crief, 5 Wend. (N. Y.) 26; Hawn v. Norris, 4 Binn. (Pa.) 77; Mitchell v. De Roche, 1 Yeatesi (Pa.), 12; Marlin v. Willink, 7 S. & R. (Pa.) 297; Brown- ing v. Estes, 3 Tex. 462, 49 Am. Dec. 760; Whiteman v. Castleburg, 8 Tex. 441. In Harle v. McCoy, 7 J. J. Marsh. (Ky.) 318, 23 Am. Dec. 407, it was said that mere non-payment of the purchase money without previous notice of an intent to rescind, would not justify ejectment against the purchaser. The rule in this respect has been nowhere more clearly or succicntly stated than in the head note to the case of Worley v. Nethercott, 91 Cal. 512, 27 Pac. Rep. 767, which is as follows: "A purchaser of land in possession thereof under a contract of sale, by the terms of which the vendor is to give a warranty deed of the property, conveying a good and perfect title thereto, cannot, upon the vendor's failure and inability to convey a good and perfect title, retain both the land and the purchase money until a perfect title shall be offered him ; but he must pay the purchase price according to the contract and receive such title as the vendor is able to give, if he chooses to retain the possession 1 of the land, or he may rescind the contract, restore the pos- session to the vendor and recover the purchase money paid, together with the value of his improvements, after deducting therefrom the fair rental value of the premises; and if he fails and refuses to adopt either coupse, he is liable to an action of ejectment by the vendor. 85 674 MAUKETABL.K TITLE TO KEAL ESTATE. improvements while the purchase money is unpaid. 11 But it has been held that if the purchaser in possession refuse to pay the purchase money on the ground that the title is defective, and the vendor, without notifying the purchaser of his intention to rescind the contract, resell the premises to a third party, the original pur- chaser, if sued in ejectment by the subsequent purchaser, may set up the failure of the vendor's title as a defense, if the case be one in which the vendor is not entitled to claim the purchase money already paid as aforesaid, or in which, by reason of moneys ex- pended in improvements, or from other causes, it would be in- equitable to deprive the purchaser of the possession." We have already seen that the purchaser cannot, while the contract is executory, get in an outstanding title and set up the same against the vendor when sued for the purchase money or the possession. lie must surrender the possession before he will be permitted to litigate or dispute the vendor's title. 14 The mere failure of the vendor to convey, for want of title, at the time stipulated by the contract, is not such a rescission of the contract as will justify the purchaser in* detaining the purchase money without giving up the possession of the premises. An agreement to convey within a reasonable time after the sale is not a condition precedent to the right of the vendor to maintain an action on a bond for the purchase money payable at a day certain. 14 257. VENDOR MUST BE PLACED IN STATU QUO. The pur- chaser must not only restore the premises to the vendor as a con- dition precedent to rescission, tout he must return them in as good condition as they were when: received. The vendor has a right to demand that he be placed in the same condition in which he was, with respect to the premises, before the contract was made. 18 But " Cherry v. Davin, 59> Ga. 454 ; Gate* v. Mol^ean, 70 Cal. 42. " F.rtell v. Cole, 52 Tex. 170. M Ant, M 202, 219. laler v. E^er*, 17 Mo. 332; Harvey v. Mon-fa, 63 Mo. 475; Perehinfr v. Canfi.-M. 70 M... 140. 14 Stone v. Oover, 1 Ala. 287. u Po*t. oh. 30, I 279. Guttuchlick v. Bank, 5 Crunch (C. C. U. 8.), 435. In Concord Bank v. Gregg. 14 X. H. Ml. a mill on the purchased premise* wan destroyed after it had lu-cn conveyed to the purchaser, hut the lorn* hav ing occurred without fault on hi* pnrt, and there lieing nothing to nhow that OBLIGATION OF PURCHASER TO RESTORE PREMISES TO VENDOR. 675 it has been held that if a state of affairs making it impossible to place the vendor in statu quo has been produced by his sole act without the concurrence, in deed or will, of the purchaser, the rule does not apply. 16 As a consequence of this rule the purchaser can- not recover back or detain the purchase money without accounting for the use and occupation of the land, 17 unless he is liable to account to the true owner for the rents and profits. 18 In a case of an executed contract, as has been seen, 19 the rents and profits, unless recoverable by the true owner, are set off against the covenantee's demand for interest on the purchase money. In England it has been held that if possession of the land was de- livered to the purchaser the vendor could not be put in statu quo by restoring the premises to him, 20 but this doctrine seems to have gained no foothold in America, where the right to rescind has generally been allowed on failure of the title, notwithstanding delivery of possession to the vendee. 21 If, instead of seeking to rescind the contract by recovering back the purchase money, the purchaser affirm it by maintaining an action to recover damages for the vendor's fraud in imposing a worthless title upon him, the purchaser may recover without surrendering or offer to sur- render the premises. 22 If, in such case, he had paid the purchase money, the measure of his damages would be the difference between the value of the premises with a good title and their value as the title actually was. the loss would not have occurred if the vendor himself had been in possession, it was held that he must accept a reconveyance of the premises. The contract had been rescinded because of fraudulent representations by the vendor. 19 Shackelford v. Handly, 1 A. K. Marsh. (Ky.) 500, 10 Am. Dec. 753. 17 Goodloe v. Woods, (W. Va.) 80 S. F. 113; Burrows v. Barter, 165 Gal. 45, 130 Pac. 1050. The rule that the vendor's claim for rent is balanced by the purchaser's claim for interest on the paid purchase money, does not apply \vhere the paid purchase money is not in proportion to the value of the use of the property. Kilborn v. Johnson, (Tex. Civ. App.) 1-64 S. W. 1108. "Collins v. Thayer, 74 111. 138; Whitney v. Cochran, 1 Scam. (111.) 209; Anderson v. Ohnoutke, 84 Neb. 517, 121 K". W. 577; Weitzel v. Leyson, 23 S. D. 367, 121 N. W. 868. "Ante, 172. 20 Hunt v. Silk, 5 East, 449; Blackburn v. Smith, 2 Exch. 783. 21 Taft v. Kessel, 16 Wis. 278. 23 Stockham v. Cheney, 62 Mich. 10. 67G MARKETABLE TITLE TO REAL ESTATE. The purchaser, of course, cannot recover back or detain the pur- chase money if he has disabled himself from placing his vendor in statu quo by conveying the premises to a stranger. 23 258. RESTORATION OF PREMISES A CONDITION PRECE- DENT TO RESCISSION. It has been held that a purchaser of lands seeking rescission of the contract at law by recovering back the purchase money, must restore or offer to restore whatever he has received on account of the contract as a condition precedent to the maintenance of the action. 2 * " In equity," the court observed in the same case, " a different rule prevails, as the action at law proceeds upon a rescission of the contract, while in equity the action proceeds for a rescission of the contract." Elsewhere, under statutes allowing courts of law to administer equitable relief, it was held that the judgment, where the purchaser seeks to detain the purchase money, could be so framed as to require the purchaser to surrender the land before he can have the benefit of the verdict. 25 Where, however, courts of law have no jurisdic- tion to direct a surrender of the premises before the judgment or verdict shall become operative, it is apprehended that the pur- chaser's action or defense, as the case may be, must fail, unless he shows that he has surrendered or offered to surrender the premises to the vendor. 26 "Rodgers v. Olshoffsky. 110 Pa. St. 147, 2 Atl. Rep. 44; McKeen v. Beaup- land, 33 Pa. St. 488; Strong v. Lord, 107 111. 20. Where the purchaser's note contained an indorsement that it was not to lie paid unless the title proved to he pood, and the purehaser resisted payment on the ground that the title to a part of the land had failed, hut did not seek to rewind the contract, it wa* held thnt he could not he compelled to pay the note until the title should he made pood, though he had conveyed away a prt of the land. Smeich v. Herbst, 135 Pa. St. 530. 19 Atl. Rep. 1>50. * Johnson v. tturnside. (S. D.) 52 N. W. Rep. 1057. "Sizemore v. Pinkston, 51 Oa. 3JW. In Taft v. Kessel, 16 Wis. 207, it was said : " There seems to he no ohjection to a rule allowing a purchaser, brought into court a* a defendant, to claim a rescission and a recovery of the pur- chase money paid, without a previous surrender of the possession, leaving the matter to he disposed of by the judgment, which ran be so framed ns to adjust the rights of both parties upon equitable terms." This wan an "action" to enforce a contract for the sale of lands (practically a suit in equity), but it is believed that the above observations of the court apply with equal force In an action at law by or against the purchaser in which he seeks rescission of the contract. "Young v. Harris 2 Ala. (\. S.) 10ft. In an action to recover back the OBLIGATION OF PURCHASER TO RESTORE PREMISES TO VENDOR. 677 259. EULE IN PENNSYLVANIA. In Pennsylvania the rule that the purchaser cannot keep both the estate and the price of it is declared, but instead of requiring the purchaser to surrender the estate as a condition precedent to the maintenance of an action to recover back the purchase money, it is there held that the vendor must take the initiative, and return the purchase money if he finds that he cannot make title, and then, if the purchaser refuses to give up the possession, turn him out by action of ejectment. 27 The ap- plication of this doctrine in an action in which the purchaser seeks either to recover back the purchase money or to obtain that which is unpaid, would seem to be fraught with injustice to the vendor, for he would be thereby forced to the expense and annoyance of another and independent action to do that which might be accom- plished in one. It has been held in the same State, in several purchase money on failure of the title, if the evidence does not show who is in possession, the court, on appeal, will presume that the purchaser sur- rendered the possession before bringing the action. Pino v. Beckwith, 1 N. Mex. 19. 27 In Gans v. Renshaw, 2 Pa. St. 34, 44 Am. Dec. 152, it was held that a purchaser, by articles of agreement, was not bound to restore the possession to the vendor and give up the contract before he could make objections: to the title in an action brought for the purchase money. A tender of a conveyance with warranty against incumbrances had been rejected by the purchaser on the ground that the premises were incumbered by certain liens, and the vendor brought an action for the purchase money. The opinion of the court was delivered by GIBSON, C. J., who said: "It is said it was his (the pur- chaser's) duty, if the title was not such as he bargained for, to give back the possession and declare his determination to abandon the contract. And for not having done sio he is to pay a sound price for an unsound title! * * * But whose business was it to move towards a rescission of the con- tract? !Nbt the defendant's He was at liberty to fold his arms and await the movements of the plaintiff, whose cue it was to take the next step towards an abandonment or a completion of the purchase. It was not for the defend- ant to know what title the plaintiff should be able to make when he should come to tender the conveyance. The plaintiff's power to perform his part \vas best known to himself, and if he found the defect in his title to be irreparable what was he to do? Certainly, not to bring an action for the purchase money in order to force a rotten title on the purchaser for a good one, and this on the basis of his own default. It would be his duty to apprise the vendee of his inability, restore whatever had been paid, and demand the possession. In that case equity would not enjoin him from proceeding on his legal title to get back the property, but not to compel the vendee to pay for what he did not get." See, also, Nicoll v. Carr, 35 Pa. St. 381. 678 MARKETABLE TITLE TO REAL ESTATE. cases, that the purchaser cannot, on failure of the title, recover back the purchase money without offering to return the premises to the vendor. 28 2,")0a. Estoppel of Purchaser to Deny Vendor's Title. The general rule is that a vendee, in possession of the premises under the contract, is estopped to deny the title of his vendor; that is to say, he cannot buy in an outstanding title to the property and set up such title as against the vendor without offering to pay the contract price less the cost of the outstanding title. 29 But this rule does not apply where, at the time of the contract, he was already in possession as owner claiming title, and his entry was not under the vendor. He must have been put in possession on the faith of the contract. 30 Nor does the rule apply in a case in which the sale was induced by the fraudulent representations of the vendor. 81 200. RESTORATION OF THE PREMISES IN CASES OF FRAUD. The mere fact that the vendor was guilty of fraud in respect to the title would not, it seems, justify the purchaser in retaining both the land and the purchase money. 32 There are cases which, at the "Morrow v. Rees, 69 ?a. St. 368; Pearnoll v. Chapin, 8 Wright (Pa.), 9: Babt-oc-k v. Case, 61 Pa. St. 427, 100 Am. Rep. 654; Wright v. Wright. 12 Pa. Co. Ct. Rep. 238. "Post, notes 32, 33, 308; 29 Am. Si Kng. Kncyc. of L. 706; Tyler on Ejectment, 559; Chavez v. Bergere, 231 U. S. 482, 34 S. C. 144, 58 L. K.I. 326; Galloway v. Finley, 12 Pet. 293, 9 L. Ed. 107W; Roller v. Effinger, 88 Va. 641 ; Harrison v. Boyer, 72 W. Va. 632, 78 S. E. 787, 46 L. R. A. (N. S.) 209; Lightrfoot v. Brower. 133 Ga. 766, 66 S. E. 1094: Francis v. Shrader, (Cal. App.) 177 Pao. 168; Bennett v. U. S. Land, etc., Co., 16 Ariz. 44, 141 Pac. 717; Nance v. Rourke, 161 N. C. 646, 78 S. E. 757; Groves v. Whittenberg, (Tex. Civ. App.) 165 S. W. 889. "Green v. Couse, 127 N. Y. 386, 28 N. K. l.l. 13 L. R, A. 206, 24 Am. St. Rep. 458; Buffalo Coal Co. v. Vam-e, 71 W. Va. 148, 76 S. E. 177; Nash- ville, etc., Ry. Co. v. Proctor, 160 Ala. 450, 49 So. 377; Groves v. \\liitt. n brg, (Tex. Civ. App.) 165 S. W. 861. "Post, | 260. "Wimberg v. Schwegeman. 97 Ind. 528; Vance v. Shmvcr, 7!> Ind. .'ISO: Wiley v. Howard, 15 Ind. 169; Vining v. Leeman, 45 111. 246; Whitlock v. Dfiilinger, 59 111. 96; Laforgo v. Matthews, 08 III. 328; Fratt v. Fiske, 7 Cal. 380; Lett v. Brown, f>6 Ala. 55O; Bramnim v. Klli-on, f> .Junes Kq. ( N". C.) 435; Staley v. Ivory, 65 Mo. 74; LIIIM > \ I -i^u-mi, ."I I.un*. (N. Y.) 196; Underwood v. Parker, (Ky.) 7 S. W. Rep. 626; Goodin v. Decker. (Colo.) 32 Pac. Rep. 832; Groves v. Stouder, 58 Okl. 744, 161 Pac. 239; '.-3UOATIOX OF PUKCHASElt TO KESTOKE PREMISES TO VENDOR. G79 first glance, might appear to countenance such a doctrine, but upon closer examination it will be found that they establish noth- ing beyond the proposition that the purchaser is not obliged to surrender the possession, where the title fails, as a condition precedent to the rescission of the contract. At law it seems that he would be compelled to give up, or to offer to give up, the pos- session before trial, even where the vendor has been guilty of fraud, except in those States in which courts of law have the power to enter judgment for the purchaser, conditioned upon his delivery of the premises to the vendor. 33 Buckingham v. Thompson, (Tex. Civ. App.) 135 S. W. 652; 2 Warvelle Vend. 919. In Pearsall v. Chapin, 44 Pa. St. 9, the court below instructed the jury that in a case of fraudulent representations the vendor had a right to recover back the price without first tendering a reconveyance. This was reversed on appeal, the court saying: "If the court has stated this point correctly a defrauded vendee may recover back the price without rescinding the contract, and while retaining the price acquired by it, and, perhaps, without liability to return it, since the vendor cannot allege his own fraud 1 in order to reclaim it; he may rescind for what he gave and affirm for what he got, and thus is allowed by law to return injustice by fraud, and invited to learn the art of being duped as a mode of profitable speculation. We do not so understand the law." In an action to recover back the purchase money on the ground of fraud, the purchaser must show an actual rescission by him, notice thereof to the vendor, and, as a general rule, an offer to put the vendor in statu quo by returning the property, unless it is utterly worthless. Morrow v. Rees, 09 Pa. St. 372'. 33 Coffee v. Newson, 2 Kelly (Ga.), 442; Phenix v. Bijelich, 30 Nev. 257, 95 Pac. 361; Taft v. Kessel, 16 Wis. 297; Young v. Harris, 2 -Ala. (N. S.) 108, where it was said: "The decisions of this court are uniform, when the question has arisen at law, that the vendee, while he retains the possession, cannot refuse to pay the purchase money; otherwise, it might happen that he would get the land without paying for it, as a court of law could exact no condition from him as the price of affording its aid. But in a court of chancery, where the rights of the parties can be accurately adjusted, no reason is perceived why the vendee, who has been induced by the fraudulent repre- sentations of the vendor, to invest his money in the purchase of land, should be required, as a prerequisite to relief in equity, to relinquish possession of the land, and with it, it may be, his only hope of reimbursing himself. This point has not before been presented to this court, but we hesitate not to say that when one, by the fraudulent silence or fraudulent representations of another in relation to material facts concerning the title of land, the false- hood of which he had not the means of ascertaining and could not have ascertained' by reasonable diligence, is induced to invest his money in the purchase of land, or has made on the faith of such purchase, valuable and 680 MARKETABLE TITLE TO REAL ESTATE. But the rule that the purchaser electing to rescind the contract must restore the jxxssession to the vendor, even in a case of fraud, does not apply where the purchaser is already in possession under a prior purchase, and is induced to take a quit claim from a third person who fraudulently represents that he has title to the premises. In such a case the purchaser may refuse to pay a note pven in consideration of the quit claim without surrendering the premises to the payee. 34 The rule that the purchaser cannot deny the vendor's title has no application where the purchaser is already in possession when the contract is made, and the vendor has fraudu- lently misrepresented or concealed the state of the title. 85 If the vendor fraudulently misrepresent the state of his title, it is not necessary that the purchaser shall return a title bond exe- cuted by the vendor before he can be permitted to rescind. He may rely upon such misrepresentations as a defense to an action for the purchase money without returning the bond. 36 261. WHEN PURCHASER NEED NOT RESTORE THE PREM- Es - PURCHASER'S LIEN. The purchaser is not obliged to re- turn the premises before suing to recover back the purchase money if the vendor refuse to receive them. 37 Nor does any such obliga- tion rest upon him if, through mistake or fraud on the part of the vendor, he purchased his own property. 38 The most important lusting improvements, lie can have relief in chancery before, an eviction and irithout an abandonment of the poa.tcsmon ." See, also, Whitwurth v. Stuckey, 1 Rich. Kq. (S. C.) 40S. 1 Sugd. Vend. m. p. 247. In Greenlee v. GaintM, 13 Ala, 108, 48 Am. Dec. 49, it wa held thai the purchaser need not surrender the |ii>--i---inM if the fraudulent vendor were, insolvent, and the detention of the premises wag necessary for hia (the purchaser's) indemnity. "Watson v. Kemp, 41 Ga. 586. "Hammers v. Hannirk, 99 Tex. 412, 7 S. W. Rep. 345, citing Taylor land- lord & Tenant, 4 Iff, 514. "Coburn v. Haley, 57 Me. 347; Wyman v. Heald, 17 Me. 321). " Johnwm v. Burnside, (S. D.) 52 X. W. Hep. 1057: Elliott v. Boaz, 9 Ala. 772; Smith v. Rnhertwon, 23 Ala. 324; Culbertson v. Blanchard, 79 Tex. 486; 15 S. W. Rep. 700. -Phillips v. O'Neal, 87 Ga. 727, 13 S. K. Rep. 819. "This," ay MV. \Va*hlurn, " is hut lit IP more than carrying out the old idea of a use raised in favor of a vendee who has paid the purchase money of an estate. And when the contract i- executory as fat an the purchase money is paid in, it i* a part performance of nucli contract, and to that extent the payment of the money, in equity, transfers to the purchaser the ownership of a eorre- OBLIGATION OF PURCHASER TO RESTORE PREMISES TO VENDOR. 681 exception to the rule, however, and one which has been recognized in several of the States, is that the purchaser need not restore the premises if it is necessary for him to retain them for his indemnity, where the vendor is insolvent or cannot be compelled to respond in damages for his breach of the contract. 39 In such case, however, the burden devolves on the purchaser to show that the vendor is insolvent or unable to answer in damages. 40 The purchaser will not be allowed to keep the premises where the vendor, although a non-resident and unable to make title, is fully solvent, and was a non-resident at the time the contract was made, and has remained so ever since. 41 As against the vendor and those claiming under him with notice, the law gives the purchaser a lien on the purchased premises to secure to him the reimbursement of whatever purchase money he may have paid, in case the title fails. 42 spending portion of the estate. * * * The mode of enforcing such liens is by a bill in equity to have satisfaction of the debt made, and to that end the court may order enough, of the land to be sold to satisfy the lien. But it can be enforced only in a suit or proceeding brotight for the purpose. It can- not be reached 1 by a collateral proceeding. 2 Washb. Real Prop. 93 ( 509 ) . 30 Duncan v. Jeter, 5 Ala. 004, 39 Am. Dec. 342; Read v. Walker, 18 Ala. 323; darner v. Leaverett, 32 Ala. 410; Hickson v. Linggold, 47 Ala. 449; Griggs v. Woodruff, 14 Ala. 9; Elliott v. Boaz, 6 Ala. 777; McLaren v. Irvin, 63 Ga. 275; Taft v. Kessel, 16 Wis. 273; Mclndoe v. Morman, 26 Wis. 588, 7 Am. Rep. 96; Payne v. Atterbury, 1 Harr. Ch. (Mich.) 414; Wickman v. Robinson, 14 Wis. 493, 80 Am. Dec. 789; Davis v. Heard, 44 Miss. 50; Bibb v. Prather, 1 Bibb (Ky.), 313, 2 Am. Dec. 711; Shirley v. Shirley, 7 Bl. (Ind.) 452. COLOOCK, J., in Ruttledge v. Smith, 1 McCord Ch. (S. C.) 402. 40 Wyatt v. Garlington, 56 Ala. 576. 41 Parks v. Brooks, 16 Ala. 52.9. 42 2 Sugd. Vend. (14th ed.) 672; 2 Warvelle Vend. 884; 2 Story Eq. Jur. 1218, n. See, also, cases cited, supra, this chapter. Taft v. Kessel, 16 Wis. 273'; Newman v. Maclin, 5 Hayw. (Tenn.) 241; Perkins v. Hadley, 4 Ilayvv. (Tenn.) 148; Pileher v. Smith, 2 Head (Tenn.), 208; Hilton v. Duncan, 1 Cold. (Tenn.) 316, 320; Benson v. Shotwell, 87 Cal. 49, 25 Pac. Rep. 249; Galbraith v. Reeves, 82 Tex. 357, 18 S. W. Rep. 696; Coleman v. Floyd, (Ind.) 31 N. E. Rep. 75; Griffith v. Depew, 3 A. K. Marsh. (Ky.) 177; 13 Am. Dec. 141; Bullitt v. Eastern Ky. L. Co., 99 Ky. 324, 36 S. W. Rep. 16; Fort Jefferson Imp. Co. v. Dupeyster, (Ky.) 66 S. W. Rep. 1048; Craft v. La Tourette, 62 N. J. Eq. 206, 49 Atl. Rep. 711; Everett v. Mansfield, 148 Fed. 374, 7'S C. C. A. 188; Groves v. Stouder, 5& Okl. 744, 161 Pac. 239; Hough v. Fink, (Tex. Civ. App.) 141 S. W. 147; Stockwell v. Melbern, (Tex. 86 682 MARKETABLE TITLE TO REAL ESTATE. Of course, such a lien could not prevail against the true owner," and it is obvious that if the purchaser were liable to the latter for rents and profits, he could derive no benefit from the retention of the premises. There may be cases, however, in which no such liability exists, as where the vendor, selling a fee, had only a life estate. In such a case, the purchaser would be permitted to enjoy the life estate until he is fully reimbursed the purchase money paid and sums expended in permanent improvements. The pur- chaser will not be entitled to a lien, as against a subsequent bona fide purchaser, without notice of his rights. 44 But, as against a subsequent purchaser with notice, his lien will be enforced. 45 Civ. App.) 185 S. W. 30i>: Elterman v. Hyman. 192 N. Y. 113, 84 X E. 87, 127 Am. St. Rep. 862; Delano v. Savior (Ky.) 113 S. W. 888; Selkir v. Klein, 100 X. Y. Supp. 449. In Xew York it is held that the purchaser ia not entitled to the lien when he sues at law to recover his deposit, such suit being an election to rewind the contract, and that the lien can he enforced only in an equitable pro- ceeding. Davis v. Rosenzweig, 192 X. Y. 135. 84 X. E. 945; Garrett v. Cohen, 117 X. Y. Supp. 129, 63 Misc. Rep. 450; Goodman v. Schwab, 121 X. Y. .Supp. in, 136 App. Div. 492; Elterman v. Hyman. 126 X. Y. Supp. 6, 141 App. Div. 20S: Feldblura v. Land Co., 135 X. Y. Supp. 349, 151 App. Div. 24. It is there held, also, that in equity the lien does not cover the costs of examin- ing the title, though such costs be recoverable in an action at law. Occi- dental Realty Co. v. Palmer, 102 X. Y. Supp. 648, 117 App. Div. 505; t'ngrich v. Snuff, 105 X. Y. Supp. 1013, 119 App. Div. 843. Contra, Gerstell v. Shirk, 210 Fed. 223, 127 C. C. A. 41, where held, also, that the purchaser's lien in equity is not defeated by the fact that he might recover, at la\v, the amount due him, nor by want of marketable title in the vendor. A >uit by the purchaser to enforce his lien in equity, is not a rescission of the con- tract on his part. Elterman v. Hyman, 192 X. Y. 113. 84 X. E. 937, 127 Am. St. Rep. 862. Xor docs the purchaser, by suing at law to recover the payments made, waive his right 5, it was held that if a sale was void for want of authority in the seller, the purchase money might be recovered back by the purchaser without surrendering the possession. The contract, however, had been executed in this case by a conveyance, but whether with or without covenants for title, does not appear. The case of Walker v. Constable, 1 Bos. & Pul. 406, was cited by the court in Hurst v. Means, supra, in support of this proposition. It seems, however, that in that case, the contract being within the Statute of Frauds and void, the purchaser was merely denied a recovery of the expenses of examining the title, and was allowed to recover the purchase money on a count for money had and re- ceived. The case does not show whether the plaintiff had or had not restored the possession. 686 MARKETABLE TITLE TO REAL ESTATE. a reason is eminently unsatisfactory. It is difficult to perceive how the purchaser can have any greater rights under an illegal 'on tract than he could have under one that is lawful and valid, or why the non-existence of a contract should entitle him to hold both the land and the purchase money. Neither does it seem that there is any right or justice in forcing the vendor to the expniM and vexation of an action of ejectment or unlawful detainer to regain possession of the premises, when circuity of action miirht be avoided in the first instance by requiring the purchaser to deliver up the land as a condition precedent to restitution of the purchase money. Accordingly it has been held that the invalidity of the contract of sale should occasion no exception to the rule that the purchaser cannot recover back the purchase money so long as he retains possession of the premises. 09 "Cope v. Williams, 4 Ala. 3f>2, where it was said by COOLIER, C. J. : " Morality forbids the idea that one man should take possession of another's property under a contract which at most is merely void, and notwithstand- ing its continuous enjoyment, refuse to make for it any remuneration. Here the seller docs not seek to recover of the purchaser upon his contract for pay- ment, but the action is by the buyer, and assumes the utter invalidity of tin- contract, and asserts a right to be refunded what has been paid under it. although the purchaser's possession has never been molested, and the vendor had not refused to execute the contract. Such a demand is against equity and good conscience, and 'cannot be entertained." See, also, the dissenting opinion of COPE, J.. in McCracken v._ San Francisco, 16 Cal. 638. In Rey- nolds v. Harris, 9 Cal. 338, it was held that no eviction was necessary t.i enable the purchaser to recover back the purchase money where the title had failed and the contract was void under the Statute of Frauds. But in thi> case the purchaser had given up the possession, and it was not decided tli.it the mere invalidity of the contract would justify tin- purchaser in detaining the possession. OF VIRTUAL RESCISSION BY PROCEEDINGS AT LAW AFTER THE CONTRACT HAS BEEN EXECUTED. DETENTION OF THE PURCHASE MONEY. CHAPTER XXVI. OF DETENTION OF THE PURCHASE MONEY WHERE THERE HAS BEEN A BREACH OF THE COVENANT OF SEISIN. 1 GENEBAL BULK 264. QUALIFICATIONS OF THIS BULE. 265. BBEACH OF COVENANT AS TO PABT OF THE PBEMISES. 266. 264. GENEBAL BULE. It has been frequently declared that an executed contract for the sale of lands cannot be rescinded upon the sole ground of want of title in the vendor, unattended by any circumstances of fraud or mistake in the execution of the contract. 2 Few cases can be found in which, after delivery of possession and execution of a conveyance on the part of the vendor, and payment of the purchase money and acceptance of a conveyance on the part of the purchaser, the vendor has been ordered to restore the pur- chase money to the purchaser, and the purchaser directed to recon- vey the premises to the vendor, upon the ground that the title has failed. 3 And in many of the 'States the rule is established that if 1 It was the desire of the author to present in unbroken sequence in this part of his work each of the cardinal rules which govern the right of the purchaser upon failure of the title, to detain or to recover back the purchase money, since the exercise of this right in most instances amounts in sub- stance to an election to rescind the contract. But inasmuch as the averment of an eviction under title paramount as a defense to an action for the pur- chase money, is substantially a cross-action by the purchaser on the covenant of warranty, and is, therefore, an affirmance of the contract, it has been deemed proper to consider that subject in a chapter under the subdivisions "Affirmance by Proceedings at Law after the Contract has been Executed," and "Action for Covenant Broken," ante, 108, 180. 2 Beebe v. Swartwout, 3 Gil. (111.) 168; Ohling v. Luitjens, 32 111. 23. 3 See the case of Hart v. Hannibal & St. J. R. R. Co., 65 Mo. 509. The pur- chaser filed his petition (declaration) alleging that he bought the land in 1863, paid the purchase money in full and took a conveyance, with covenants of seisin, etc., that his vendor had no title to the land; that the title was outstanding in a person named, and that he had offered to rescind the con- [687] MARKETABLE TITLE TO SEAL ESTATE. the purchaser has accepted a conveyance with covenants for title, and has not been actually or constructively evicted from the prem- ises by one having a better right, nor compelled to satisfy an incumbrance on the estate, he cannot detain the unpaid purchase money in his hands, though a clear failure of the vendor's title should appear. We have seen that if he is evicted from the prem- ises or forced to discharge an incumbrance thereon, lie may set up that fact as a defense by way of counterclaim or recoupment tract, and tendered a reconveyance to the vendor. The plaintiff had not in- closed or cultivated the land, but there was nothing to prevent him from taking possession and occupying the premises. There was a judgment for the plaintiff, which was reversed on appeal, the court saying: "The parties tried the cause as if the plaintiff had sued the defendant for a breach of the cove- nant of seisin, and judgment was rendered for the amount of the purchase money and interest. Had it been such a suit, the plaintiff would only have been entitled to nominal damages, as no actual or constructive eviction was shown. But the suit was distinctry brought for a rescission of the executed contract of sale. The petition contained no allegation of fraud or misrepre- sentation of facts in relation to the title, and without such allegations n court of equity has no authority to grant the relief prayed. The vendee in such case mtist rely on the covenants contained in his deed." In the case of Simpson v. Hawkins, 1 Dana (Ky.), 306, the court said: "Where contracts are executed by conveyances we are of opinion that there can be no rescission of a contract in any case unless it has 'been tainted by actual fraund. If the warranty of title has been broken so as to entitle the vendee to damages, or if the vendee be entitled to damages upon a covenant of seisin, he may apply to the chancellor, where the vendor is insolvent, to set off those damages against the unpaid portion of the purchase money. The ground upon which the chancellor interferes in such cases is the prevention of the irreparable mischief which otherwise might result from the insolvency. He ought not to act upon the principle of rescinding the contract. On the contrary, he should affirm the contract, and secure to the party such damages as he might be entitled to for a partial or total violation thereof by the obligor. If a deed of conveyance be executed for any quantity of land, and the vendee is put into possession thereafter, in case he loses half or three-fourths of the land, the law only authorizes a recovery, upon the warranty, of damages com- mensurate with the loss. The chancellor must follow the law and not lay hold of such a partial loss, and require the vendor to take back the portion f the land saved and return the purchase money for that, under the idea of rescinding contracts" In Vance v. House, 5 B. Mon. (Ky.) 540, it was said ly the court: "This is the case of an executed contract, where the convey- ance has been made and accepted with warranty of title, and ponswsion de- livered ami uninterruptedly enjoyed, without eviction or molestation. In cueh a cae a bill for the dissolution of the contract and the payment of the enjoined cannot be sustained except in the case of fraud, in- DETENTION OF PURCHASE MONEY. 689 in an action for the purchase money. 4 No particular hardship is involved in requiring a grantee, who has paid the whole purchase money, to await an eviction or disturbance of his possession before he can recover back the purchase money, or rather its equivalent in the shape of damages, from the grantor. But that he should be compelled to pay over the purchase money when there is a moral certainty of his eviction by an adverse claimant, and a possibility that his judgment against the grantor for damages may be worthless when recovered, does violence to common prin- ciples of equity and right. Such, however, is the consequence of a rigid application of the maxim caveat emptor. But in some of the States the restraints of this maxim or rule have been thrown off in a large degree. We shall see that in the State of Pennsylvania the purchaser is permitted to detain the purchase money, though he took a conveyance without covenants for title, if he purchased without notice of the defect in the title. 5 And, with the same qualification, in the States of Texas and South Carolina, the existence of a paramount title to the premises in .a stranger, is a good defense to an action for the purchase money, though the purchaser holds under a deed with general warranty, and has not been disturbed in the possession of the premises. 6 In a number of other States he is permitted to enjoin the collection of the pur- chase money if he can show that by reason of the non-residence or insolvency of the grantor his remedy by action for breach of the covenant of warranty will prove unavailing when the right to maintain the action shall have accrued. 7 The decisions in these States, together with those in other States, directly or incidentally affirming the right of the purchaser to detain the purchase money solvency or non-residency of the vendor, and a palpable and threatening danger of immediate or ultimate loss, without legal remedy by reason of the defects in the title conveyed and the inability of the vendee to protect him- self against eviction under it. And to sustain such a bill after the vendee has accepted the conveyance, the onus lies on him to establish to the satisfac- tion of the chancellor that the defect of title and imminent danger of eviction exists." 'Ante, ISO; Prop. IV. "Post, 271. Ante, 189, 190. 'Post, 331. 87 G9C MARKETABLE TITLE TO REAL ESTATE. where there has been a total failure of the title, upon reconvening or offering to reconvey the premises to the grantor, justify us, it is believed, in laying down the following proposition: PROPOSITION III. // the contract has been executed by a con- veyance with a covenant of seisin or of good right to convey, and it clearly appears that the covenantor had no title, tlie covenantee, though he has not been disturbed in the possession, will, it seems, in some of the American States, be permitted to set up the breach of the covenant of seisin as a defense to an action for the purchase money, upon condition that he reconvey the premises to the cove- nantor, and do all that may be necessary to put him infstatu quo. 9 Owens v. Rector, 44 Mo. 390, 392; Powell v. Hunter, 257 Mo. 440; 165 S. W. 1009; Herron v. Barbour, 57 Okl. 71; 155 Pac. 506; S. C. 182 Pac, 243; Mercer Co. Bank v. Hayes, 34 X. D. 601; 159 S. W. 74; McDaniel v. Bryan, 8 111. 273; Mhidd v. Green, (Ky.) 14 S. W. Rep. 347; Cartwright v. Culver. 74 Mo. 179; Kirtz v. Peck, 113 N. Y. 222, 231; 21 N. E. Rep. 130; Lowry v. Hurd, 7 Minn. 356 (282) ; Buell v. Tate, 7 BL (Ind.) 56; Marvin v. Applegate, IS Ind. 425; McDunn v. DCS Mbines, 34 Iowa, 467; Beard v. Dulaney, 36 Iowa, 16; Barnett v. Clark, 5 Sneed (Tenn.) 436; Land Co. v. Hill, 3 Pick. (Tenn.) 589, 598; 11 S. W. Rep. 797; Kimball v. West, 15 Wall. (U. S.) 377; Michael v. Mills, 17 Ohio, 601; Smith v. Hudson, 45 Ga. 208. See, also, the cases cited, post, 271, " Rule in Pennsylvania," and, ante, (| 189, 190, "Rule in South Carolina and Texas," and, post, S 331, "Insolvency and Non-residence of the Covenantor." Sir Edward Sugden says that, where the title is defective the covenantee would not be bound to wait until eviction, but might bring his action of covenant, and, if necessary, offer to reconvey the interest or title actually vested in him. 2 Sugd. Vend. (14th ed.) 611. No authority is cited for the proposition, and it has been doubt ed by Mr. Dart. Dart Vend. (5th ed.) 792. In Lawless v. Collier, 19 Mo. 480, it wan held that the rule which limits the recovery in an action on a covenant of seisin, to a nominal sum, until there has been an eviction, has no application where the title conveyed li.is been defeated, and* the grantee or his assign* hold by a title adverse to that acquired from their grantor, and that in such cane there can be no necessity for submitting to the form of an eviction in order to be entitled to a recovery of full damages for a breach of the cove- nant of seisin; neither is there any necessity for a reconveyance to the grantor, in order to sustain urh recovery. It is true these principles were declared in an action for breach of the covenant of seisin, but they are fully a applicable where micti breach in sought to be availed of as a defense to an action for the purchase money. In Akerly v. Vilas, 21 Wis. 88; 99 Am. Dec. 165, which wan an action to foreclose a purchase-money mortgage, it was held that the defendant might, under a statutory provision allowing a coun- terclaim to be act up in foreclosure proceedings, counterclaim for a breach of the covenant of seisin, though he was in the undisturbed possession of the DETENTION OF PURCHASE MONEY. 691 In one of those cases the court said : " We fully recognize the principle that the true consideration of the notes given for the purchase money, was the land, and not the covenants in the deed ; and as the title to the land had been defeated by an incumbrance premises. See, also, Merritt v. Gouley, 58 Hun (N. Y.), 372, 12 N. Y. Supp. 132. The proposition stated in the text was admitted, though the point was not expressly decided, in Yazel v. Palmer, 81 111. 82. There had been a con- veyance in that case, but whether with or without covenants for title does not a-ppear. The grantee had resold and conveyed the premises, and when sued for the purchase money, set up want of title as a defense. The court said: "He (the original grantee) cannot withhold the purchase money, and still retain the plaintiff's title, whatever it was, which he obtained 1 by the conveyance. Before he can recoup the value of the land to which he says the title failed, he must cause his grantee to reconvey it, or offer to do so, back to plaintiff. Xo defense can be interposed until the parties have been placed in statu quo by a reconveyance, or an offer to reconvey to plaintiff whatever title defendant received from plaintiff, no matter what its title may 'be." In Moyer v. Shoemaker, 5 Barb. (N. Y'.) 319, it was held that the covenantee could not maintain assoimpsit to recover back the purchase money on failure of the title, without reconveying the premises. The right to rescind, pro- vided the covenantee would make the adverse claimant a party, so that the rights of all parties might be adjusted in the suit, wia3 admitted in Wiley v. Fitzpatrick, 3 J. J. Marsh. (Ky.) 583, 586. In Brick v. Coster, 4 Watts & S. (Pa.) 499, it was said that an affidavit of defense by a grantee, with warranty, in a suit for the purchase money, would be insufficient unless it alleged adverse claims to be good, or that affiant believed them to be good. If the objection to the title be an outstanding incumbrance, the grantee will be entitled to detain the purchase money until the grantor removes the in- cumbrance. Brown v. Montgomery, (Tex. Civ. App.) 31 S. W. Rep. 1079. In Wisconsin there are dicta in several early cases which support the proposi- tion stated in the text. Taft v. Kessel, 16 Wis. 273; Nbonan v. Illsley, 21 Wis. 138; 84 Am. Dec. 742; Mecklem v. Blake, 22 Wis. 495; 99 Am. Dec. 68. But they are inconsistent with later decisions in that State. In Smith v. Hughes, 50 Wis. 625, it was said : " The counterclaims of the defendant, for a rescission of the bargain and for damages, are predicated upon the breach of the covenant of seisin in the deed of the respondents, executed and delivered in July, 1872. It is too well settled that only executory contracts can be rescinded, to require discussion. This method of relief is the converse of specific performance, and in its very nature can have application only to executory contracts, and this court has settled the question beyond contro- versy by repeated decisions. In direct application to this case, it is held in Booth v. Ryan, 31 Wis. 45, that, especially, a rescission cannot be made after a deed with full covenants, together with possession, have been delivered in full execution of the contract of sale. * * * The remark in the opinion of Chief Justice DIXON, in Mecklem v. Blake, 22 Wis. 405; 99 Am. Dec. 68, intimating that a recission might be made in such a case, was clearly obiter, G92 MARKETABLE TITLE TO BEAL ESTATE. prior to the deed to the defendant, the title at the time of the maturity of the notes had failed; and so the consideration of the notes failed if the defendant so chose to treat it, and the defend- ant then had the right to repudiate the contract of sale and the notes, for the reason that the consideration of the notes had failed. But the mere declaration that he repudiated the contract was not sufficient to effectuate that purpose. He should have put the other parties in statu quo by a reconveyance of the land, or, at least, a release of the covenants of the deed, so that any subsequent title acquired by the grantor, would not enure to his benefit, and vest in him." ' These views, undoubtedly at variance with the current and without due consideration." In McClennan v. Prentice, 77 Wis. 124; 45 N. W. Rep. 943, it was held, in an action for breach of a covenant of seisin in which it appeared that the plaintiff had never been in possession of the premises, that the burden of proof was on the grantor to show that he was seized of an estate in fee at the time of the execution of the deed, and that in the absence of such proof the grantee might, on tendering a, recon- r- i/nnce, rescind the contract and recover back the purchase price paid, with interest, etc. This case came again before the court, and is reported in 85 Wis. 427. Without disapproving the decision at the former hearinp, the court announces a rule inconsistent therewith, namely, that an executed contract cannot be rescinded, except upon the ground of mistake. Apparently, the court draws a distinction between a recission by a decree of a court of equity and a virtual rescission accomplished at law, by permitting the purchaser to recover back or detain the purchase money in the shape of damages for a breach of the covenant of seisin. In Taylor v. Lyon, 2 Dana (Ky. ), 279, it was said: "If he (the purchaser) took no covenant of seisin, which iroi//efore or after eviction, buy in the outstanding title and require the covenantee to take it in satisfaction of the broken covenant. The reason which he gives for that view is, that the covenantee cannot be required to elect between the acceptance of the after- acquired title and the recovery of damages for breach of the covenant of seisin or of warranty, or to give up hit right to rescind the contract 6;/ rrconveying the premic to the grantor. R*wle Covts. (5th ed.) || 376, 378. DETENTION OF PURCHASE MONEY. 701 the covenantor, or to set up those facts as a defense to an action against him for the purchase money. 21 In principle and in prac- tical results there is little difference between the exercise of these rights, and the detention of the purchase money upon a reconvey- ance of the estate to the grantor after an adverse title has been hostilely asserted against the covenantee. The law is chiefly solicitous that the covenantee shall not enjoy the benefit of the contract while evading its obligations, and this object is accom- plished by compelling him either to give up the premises to the paramount claimant, or to surrender them to the covenantor, or to apply the purchase money to the removal of adverse claims. The virtual rescission of an executed contract for the sale of lands by detention of the purchase money in an action at law would seem to be attended with no serious difficulty where none, or a small portion, of the purchase money, has been paid, and the courts have power to enter judgment for the defendant, with con- dition that it shall be inoperative unless he reconvey the premises to the grantor. But much practical difficulty arises where a con- siderable part of the purchase money has been paid, for in most instances purchasers are unwilling, by reconveying the premises, to .sacrifice what they have already paid in pursuance of the con- tract. If, however, the purchaser should prefer to lose what he may have paid rather than pay out more money for a bad title, no reason is perceived why he should not be permitted to do so. He must either submit to his loss or suffer a constructive eviction by compounding with the adverse claimant, except in a few of the States, where he may have an injunction tjo stay the collection of the purchase money, without, it seems, being required to convey tfhe premises to the grantor, in view of the imminency or extreme probability of his eviction. 22 265. QUALIFICATIONS OF THE FOREGOING RULE. A pur- chaser who has not been evicted by a paramount claimant should not, upon a breach of the covenant for seisin, be permitted to detain the purchase money, unless he offers to reconvey the prem- ises to the grantor, and to make good to the latter any loss or "Ante, 150, 187. 22 Post, 337. 702 MARKETABLE TITLE TO REAL ESTATE. damage he may have sustained by reason of the purchaser's occu- pation and possession of the premises. 23 Neither should that right be accorded the purchaser unless it appears that there is a moral certainty of his eviction by one whose better title is clear and undisputed, and who is hostilely asserting that title. In each and every case in which this defense is set up, the burden will be upon the defendant to show, by clear and satisfactory evidence, the absolute want of title in the grantor. 24 The mere objection that the title is doubtful or unmarketable should be no ground for detaining the purchase money, after a conveyance with covenants for title has been accepted. As was said by the court in a case frequently cited : " The vendee has accepted the deed, he has received possession, he has enjoyed it without disturbance; he alone has stirred up adversary claims, and, when so stirred, neither himself nor the alleged claimants have been able to make good their claims. After such acceptance of the possession and deed and covenant of warranty, a vendee, before eviction or disturbance, cannot receive the aid of a court of equity to assist him to with- hold the purchase money or rescind the contract, but by taking on himself the burden of showing a defect in the title of the ven- dor of a latent character, and of proving superior outstanding subsisting adversary rights and interests." 26 Xor should the de- "Deal v. Dodge, 26 111. 458; Melicharek v. Calkins, (Cal. App.) 183 Pac. 457. Cases may easily be supposed in which the better legal title is in a stranger, with no probability that it will ever be asserted against the purchaser. Thus, in some of the States, neither a married woman nor her heirs are estopped by her covenant of warranty from recovering her separate estate from a purchaser who holds under a conveyance by her not executed in the manner required by statute to pass her title, though the other heirs may be in the full enjoyment of the consideration of such conveyance. I n -t anirs have occurred in which parties who might have had the benefit of such a defect have freely and voluntarily relinquished all their rights in the premises. "Ante, 117. Vance v. House, 5 B. MOD. (Ky.) 540; Zerfing v. Seelig, 14 S. Dak. 303, 85 N. W. Rep. 585. Cooley v. Rankin, 11 Mo. 642; Lewis v. Morton, 5 T. B. Mon. (Ky.) 1. In an action on a bond for purchase money of land, the defense that the title was doubtful h insufficient; the title must be proven to be absolutely bad. Crawford v. Murphy, 22 I'a. St. 84; Schott v. McFarland, 1 Phil. (Pa.) 63. In Cliintoii v. Burges, 2 Dev. Eq. (N. C.) 13, a much cited case, the court, by Rum.N, J., after describing the objection to the title on which the DETENTION OF PURCHASE MONEY. 703 fense of want of title be admitted in any case in which the pur- chaser accepted a conveyance with notice of the defect ; for while notice of a defect of title does not affect the right of the purchaser to recover on the covenants for title, it will, as a general rule, deprive him of the right to rescind the contract on the ground that the title has failed. 26 The grantee seeking to rescind for want of title in the grantor, must have acted promptly on discovery of the failure of title, and must be able to place the grantor in statu quo. In a case in which he had been guilty of great delay after discovery of the want of title, and had also placed an incumbrance on the property, he was denied relief. 27 With these qualifications it is believed that little inconvenience application for an injunction was founded, as a minute outstanding interest, dependent upon a contingency, observed that it could never form grounds for rescinding a contract " at the instance of a purchaser who is in possession under a conveyance executed with full covenants for quiet possession, from a vendor not alleged to be in failing circumstances, who made on the treaty, a full communication of his title. To grant the prayer of the bill would be to proclaim encouragement to dishonest dealing, and an invitation to pur- chasers to expose latent defects in> their vendor's title, instead of curing them by enjoyment." 29 Payne v. Cabell, 7 T. B. Mon. (Ky.) 198. See, also, Whitworth v. Stuckey, 1 Rich. Eq. ( S. C. ) 40S, where it was said : " In the frequent fluctuations of the commercial prosperity of the country fluctuations to which our country seems more liable than any other there is a correspond- ing fluctuation in the value of property. He who purchases land at a high price will be tempted 1 , when there follows a great fall of value, to discover and bring forward some claim which may have the effect of ridding him of his bargain. But this is a betrayal of his vendor's title and against good faith. The case has occurred of a vendee who, upon such a fall of property, has been at great expense of time, labor and money, in seeking informa- tion from individuals and searching public offices in order to ferret out a paramount title, which there was not the remotest probability would ever fee prosecuted, which did not appear to be known to the person in whom it was vested, and which there was hardly a probability that he would prosecute successfully even if he knew it. This was scarcely less than a fraud; yet, according to the doctrine contended for, relief ought to have been granted in such a case, for there was clearly an outstanding title in some one." An- derson v. Lincoln, 5 How. (Miss.) 279; Gartman v. Jones, 24 Miss. 234; Merritt v. Hunt, 4 Ired. Eq. (N. C.) 406; Henry v. Elliott, 6 Jones Eq. (N. C.) 175. Contra, Herron v. Barbour, (Okl.) 182 Pac. 243. *' Johnson v. Williamson, 145 Ind. 645, 43 N. E. Rep. 1054. 704 MARKETABLE TITLE TO REAL ESTATE. would result from a rule which would permit the grantee to detain the unpaid purchase money upon a clear breach of the covenant of seisin. Without them, such a rule would invite purchasers to find, loopholes by which to escape from their improvident bargains, and result in injury to the entire commonwealth by lessening the stability of transactions in real property. 266. BREACH OF THE COVENANT OF SEISIN AS TO PART OF THE PREMISES. It has been said that upon a " partial " breach of the covenant of seisin, the rule limiting the covenantee's recov- ery to nominal damages before eviction does not apply, as where a tenant for life conveys with covenant for seisin in fee, and that in such a case the covenantee can only be required to pay the value of the life estate, and may recoup the difference between the value of the life estate and the fee. The same authority ex- tends this principle to cases in which the title to a specific part of the subject fails. 28 Treating this as a proposition that the cove- nantee may detain the purchase money pro tanto, though he has not been disturbed in the possession of the part to which title has failed, it is difficult to perceive upon what grounds rests the dis- tinction between such a case and one in which there has been a complete failure of title to the entire estate. "Rawle Covts. (5th ed.) 186, 187. CHAPTER XXVII. OF THE DETENTION OR RESTITUTION OF THE PURCHASE MONEY WHERE THE DEED CONTAINS NO COVENANTS FOR TITLE. GENERAL PRINCIPLES. 267. EXCEPTION. VOID CONVEYANCES. 268. MERGER OF PRIOR AGREEMENTS. 269. MERGER IN CASES OF FRAUD. 270. RULE IN PENNSYLVANIA AS TO DETENTION OF THE PUR- CHASE MONEY. 271. 267. GENERAL PRINCIPLES. The next rule which we shall state in respect to the detention or recovery back of the purchase money, after the contract has been executed by the delivery and acceptance of a conveyance, is as follows: PROPOSITION V. 1 // the contract has been executed by a con- veyance of the land to the purchaser without general covenants for title, he can, if the title fails, neither recover back 2 the purchase 1 For Proposition. IV, see ante, 180. 2 Co. Litt. 384, a, note; Sugd. Vend. (14th Eng. ed.) 251, 549. 2 Kent Com. (llth ed.) 622 (473); Rawle Covts. (5th ed.) 321; Maynard v. Mosely, 3 Swanst. 651; Bree v. Holbech, Doug. 654; Urmston v. Pate, 4 Cruise Dig. 90; Typee v. Webb, 14 Beav. 14; Cripps v. Reade, 6 T. R. 606; Thomas v. Powell, 2 Cox Ch. 394; United) States v. Bank of Ga., 10 Wh. (U. S.) 433; Union Pac. R. Co. v. Barnes, 64 Fed. Rep. 80; Corbett v. Dawkins, 54 Ala. 282; Story v. Kemp, 51 Ga. 399; Botsford v. Wilson, 75 111. 132; Xiles v. Harmon, 80 111. 396; Barry v. Guild, 126 111. 439, 18 N. E. Rep. 759; Major v. Brush, 7 Ind. 232; Jenkinson v. Evving, 17 Ind. 505 ; Starkey v. Neese, 30 Ind. 224 ; Stratton v. Kennard, 74 Ind. 303 ; Allen v. Pegram, 16 Iowa, 172; Weight-man v. Spofford, 56 Iowa, 172. In Louis- inaa, where the cavil law prevails and the rule caveat emjttor has but little foothold, it has nevertheless been held that a purchaser taking a conveyance with special warranty, and warranty of only such title as the vendor had under a particular grant, was not entitled to compensation on failure of the title through a defect not covered by the warranty. Pilcher v. Prewitt, 10 La. Ann. 568; Lyons v. Fitzpatrick, 52 La. Ann. 697, 27 So. Rep. 110. To the text: Getchell v. Chase, 37 N. H. 106; Bates v. Delavan, 5 Paige Ch. (X. Y.) 306; Banks v. Walker, 2 Sandf. Ch. (X. Y.) 348; Whittemore v. Farrington, 7 Hun (N. Y.), 392; Granger v. Olcott, 1 Lans. (N. Y.) 169; Thorp v. Keokuk Coal Co., 48 N. Y. 253; Wheeler v. State, 190 N. Y. 406, 83 N. E. 54, 123 Am. St. Rep. 555; Drott v. Stevens, 163 Wise. 571, 158 N. W. 329; St. Francis Levee Dist. v. Lumber Co., 86 Ark. 221, 110 S. W. 89 [705] 706 MARKETABLE TITLE TO REAL ESTATE. money, nor detain* that which remains -unpaid, either at Jaw or in equity; unless the vendor was guilty of fraud, or the contract was founded in mistake of the parties as to some fad upon which the title depended. 805; Goodman v. Hadley, (Tex. Civ. App.) 122 S. W. 282; Joyce v. Ryan, 4 Gr. (Me.) 101: Emerson v. Wash. Co., 9 Gr. (Me.) 94; Soper v. Stevens, 2 Shep. (Me.) 133: Gates v. Winslow, 1 Mass. 65. In this case it was said that the condition of the purchaser was the same as that of one who gives away voluntarily a sum of money. Earle v. De Witt. 6 Allen (Mass.), 520; Bemia v. Bridgman, 42 Minn. 496, 44 N. W. Rep. 793; Pintard v. Martin. 1 Sm. 4 M. Ch. (Miss.) 126; Higley v. Smith, 1 Chip. (Vt.) 409: Maynard v. Moseley, 3 Swanst. 655 (reported from Lord NOTTINGHAM'S MSS.), where it was said by that eminent jurist that although the purchaser had been evicted, " yet he that purchases lands without any covenants or warranties against prior titles, as here, where the defendants sold only their own title, if the land be afterward evicted by an older title, can never exhibit a bill in equity to have his purchase money again upon that account; possibly there may be equity to stop the payment of such purchase money as is behind, but never to recover what is paid, for the chancery mends no man's bargain, though it sometimes mends his assurance; and it cannot be truly said that the defendants keep the money for nothing, since they have done all which was agreed to be done for it, but if the plaintiff had bought that which falls out to lie worth nothing, he can complain of none but himself." In Bree v. Ilolbcch, Doug. 654, a leading English case, a personal representative found among the papers of his testator a mortgage deed, and assigned it for the mortgage money, affirming and reciting in the deed of assignment that it was a mortgage deed made or mentioned to be made, between the mortgagor and mortgagee for that sum. It was decided that the assignee could not recover back the mortgage money, though the mortgage was a forgery, unless the assignor knew it to be a forgery. The question was whether there was any fraud. If the personal representative had discovered the forgery and then assigned the mortgage as a true security it would have been different. He did not covenant for the goodness of the title, but only that neither he nor the testator had inrumbered the estate. It was incumbent on the assignee to look to the goodness of it. 1 Sugd. Vend. (14th Eng. ed.) 251; 2d. id. 549, 552; Rawle Covts. (5th ed.) 8 3*21: Rowall v. Vaughan, 2 Cro. 196; Greenleaf v. Cook, 2 Wh. (U. 8.) 13; Noonan v. Leo, 2 Black (U. S.) 499: Buckner v. Street. 15 Fed. Rep. 365; Griel v. Lomax. 9ft Ala. 135, 5 So. Rep. 325, 06. diet.; Strong v. Waddell, 56 Ala. 471; Crowell v. Packard, 35 Ark. 348: Alexander v. McCauley, 22 Ark. 553; Reese v. Gordon. 19 Cal. 147; Hastings v. O'Donnell. 40 Cal. 198; O'Sullivan v. Griffith, 153 Cal. 602, 95 Pac. 873: Barkhamstead v. Case, 5 Conn. 528, 13 Am. Dec. 92; McDonald v. Beall. 55 Ga. 2SS; Patten v. Stewart, 24 Ind. 332; Bethell v. Bcthell, 92 Ind. 318; Gibson v. Richart, 83 Ind. 313: Homer v. Lowe, 150 Ind. 406, 04 N. E. Rep. 218: Bramlt v. FoHter, 5 Cl. (lo.) 287; Butler v. MJller, 16 B. Mon. (Ky.) 627; Middles- DETECTION OR RESTITUTION OF THE PURCHASE MONEY. 707 This proposition forms, so to speak, the most conspicuous land- mark in the outlines of the law denning and limiting the right of the purchaser of lands to relief at law or in equity in case the title fails. The rule therein formulated has been acknowledged from an early period, and has been followed, with few exceptions, both in England and America down to the present time. The reasons for the rule are clear and satisfactory. They are, in the first place, that a purchaser who has failed to protect himself by de- manding appropriate covenants, is not entitled to relief; and, in the second place, that if covenants were demanded and refused, the vendor should not be held liable for defects, the risk of which he expressly declined to assume. The purchaser is still less en- titled to relief if he makes a catching bargain, that is, agrees to assume the risk of the title, and to accept a conveyance without covenants. 4 "'Such deeds," it has been said, " are made because kauff v. Barrick, 4 Gill (Md.), 290; Smith v. Chaney, 4 Md. Ch. 246; Mitchell v. Christopher, (Minn.) 58 X. W. Rep. 873; Hulett v. Hamilton, (Minn.) 61 X. W. Rep. 672; Insurance Co. v. Marshall, (Minn.) 57 X. W. Rep. 658; Pritchard v. Steamboat Co., 169 X. C. 457, 86 S. E. 171, L. R. Ann. 1916 A. 961. Xorton v. Stroud Bank, 17 Okl. 295, 87 Pac. 848. A rule varying from that stated in the text exists in the State of Pennsylvania. See post, this chapter, 632; Mclntyre v. Long, 71 Tex. 86, 8 S. W. Rep. 622; Heisch v. Adams, (Tex.) 16 S. W. Rep. 790; Scott v. Slaughter (Tex. Civ. App.), 80 S. W. Rep. 643; Baldwin v. Drew, (Tex. Civ. App.) 180 S. W. 614; Commth. v McClanachan, 4 Rand (Va.) 482. In Scudder v. Andrews, 2 McL. (U. S.) 464, n, and Wiley v. White, 3 Stew. & P. (Ala.) 355; Gray v. Ward (Tenn. Ch. App.), 52 S. W. Rep. 1028, and perhaps in a few other cases, besides the Pennsylvania and South Carolina decisions hereafter noticed, there are dicta to the effect that the purchase money may be detained on failure of the title, notwithstanding the absence of covenants in the conveyance. There are no authorities cited in support of these intimations. In Louisiana where the civil law prevails, it has been held that a purchaser with special warranty and notice of a government suit affecting the title, who has never been evicted and prob- ably never will be, and who has not impugned his vendor's title, cannot insist on security against hostile claims. Pilcher v. Prewitt, 10 La. Ann. 568; Medina v. Stoughton, 1 Salk. 211, per Lord HOLT: "If the seller of goods have not the possession, it behooves the purchaser to take care, caveat emptor, to have an express warranty, or a good title; and so it is in tlie case of land, whether the seller be in or out of possession, for the seller cannot have them without a title, and the buyer is at his peril to see to it." 4 Breckenridge v. Waters, 5 T. B. Mon. (Ky.) 150, 17 Am. Dec. 46; Butter v. Miller, 15 B. Mon. (Ky.) 617. 708 MARKETABLE TITLE TO REAL ESTATE. the vendor is unwilling to warrant the title; they are accepted because the grantee is willing to take the hazard of the title and believes it worth the price he pays for it, or agrees to pay.'' ; These observations undoubtedly apply with full force in a locality in which it is customary to give general covenants of warranty, but lose much of their application wherever it is the custom to give only a quit claim, or a conveyance with limited or special cove- nants for title. In the former case it is a fair presumption that the attention of the parties was drawn to the state of the title, and that the purchaser expressly bought merely such title as the ven- dor had. In the latter case, that is, where it is customary to give only limited covenants, no presumption that the defective title was considered in the bargain necessarily arises. The purchase price agreed to be paid will generally be a fair test of the real understanding of the parties in this respect. If the purchaser pays the full fee simple market value of the premises, it could hardly be presumed that he knew the title was questionable, but was nevertheless willing to pay as much for a clouded title as for one undoubtedly clear. These considerations have, in one of the States at least, led to a great relaxation of the rule stated at the beginning of this chapter, with respect to the right of the grantee to detain the unpaid purchase money where the title has failed. 6 But the rule of the common law and that which prevails in most of the American States is, without question, that " a vendor selling in good faith is not responsible for the goodness of his title, beyond the extent of the covenants in his deed. This rule, experience has shown, reconciles the claims of convenience with the duties of good faith. The purchaser is stimulated to employ vigilance and care in reference to the things as to which they will secure him from injustice, while it affords no shelter for bad faith on either part." 7 The rule is thus laid down by Sugden: "If one sells another's estate, without covenant or warranty for the enjoyment, it is at the peril of him who buys, because, the thing being in the realty, M.-Ni-al v. Cnlkin, 50 111. App. 17. Pout, | 271. T Language of the court in Krfeld v. Woolfolk, 22 How. (U. S.) 328. DETENTION OR RESTITUTION OF THE PURCHASE MONEY. 709 he might have looked into the title, and there is no reason he should have an action by the law where he did not provide for himself." This is one of the plainest applications of the maxim caveat emptor* For the purposes of this rule a quit-claim con- veyance, or a conveyance, with " special warranty," or limited covenants for title, is the same as a conveyance without covenants for title, unless the defect of which the grantee complains, was caused by the act of the grantor or some one claiming under him. 9 So, if the warranty be against a particular specified claim, the covenantee cannot complain of the loss of the land through other claims. 10 If the purchaser accept a deed without covenants for title, that is, a mere quit-claim, the fact that he did so under protest, claim- ing the right under his contract to require a deed with a covenant against the grantor's acts, has been held not to entitle him to detain the purchase money on failure of the title and loss of part of the premises ; even though the defect in the title consisted of a prior conveyance by the vendor himself. 11 In some cases it has been strongly contended that a sale of lands in which it does not appear that the vendor was aware of the infirmity of his title, establishes a case of mistake as to the title, and affords ground for relief if the vendor conveyed with special or limited covenants. Such a doctrine would provide an escape for the purchaser from nearly every improvident bargain, if the title should be faulty, and the better opinion seems to be that the vendee taking a quit-claim deed, is entitled to no relief on the ground of mistake, unless the mistake is as to the existence or non-existence of some particular fact upon which the validity of the vendor's title depends. The vendor may feel assured of 8 1 Sugd. Vend. (8th Am. ed.) 534 (356). 9 Cross V. Xoble,, 67 Pa. St. 78. The grantee may, by his conduct, estop himself from claiming that there has been a breach of warranty; as where, knowing the objections to the title, he took a deed with special warranty, and agreed to a compromise judgment in favor of adverse claimants of the land. Sour Lake Co. v. Jackson, (Tex. Civ. App.) 130 S. W. 662. 10 Terrell v. Herron, 4 J. J. Marsh. (Ky.) 519; Breckenridge v. Waters, 5 T. B. Mon. (Ky.) 154, 17 Am. Dec. 46; Morrison v. Caldwell, 5 T. B. Mon. (Ky.) 439, 17 Am. Dec. 84. 11 Porter v. Cook, 114= Wis. 60, 80 X. W. Rep. 823. 710 MARKETABLE TITLE TO BEAL ESTATE. the sufficiency of his title, yet be unwilling to insure the purchaser against recondite claims, which the most searching investigation might fail to disclose. 12 If the deed contain special or limited covenants only, and it was executed in a locality or section where the practice is to insert general covenants, it will be presumed that the parties knew or suspected that the title was defective, and that the purchaser agreed to take merely such title as the vendor could make. 13 It has also been contended that the grantee should be permitted to recover back the purchase money when he loses the estate, without regard to the question of covenants for title, upon the principle of the common law enounced in the case of Moses v. McFerlan, that assumpsit will lie in any case to re- cover money which the defendant, ex cequo et bono, ought not to retain in his hands. 14 But it is generally considered that this rule must be subordinated to that other principle of the common law, caveat emptor. The rule that a purchaser who has taken no covenants for title can have no relief if evicted from the premises by one having a better right, is satisfactory in all cases in which it appears that the purchaser intended to accept the risks of a defective title, pro- vided that rule be limited to cases in which the estate is ln-i through a defect in the title proper, that is, through the assertion of an outstanding paramount title in a stranger. But it is not easy to perceive any sound reason why a purchaser who pays off a prior incumbrance on the land, or who redeems from a pur- chaser under such incumbrance, should not be surrogated to tin- rights of the incumbrancer without regard to the existence or non- 11 Clare v. Lamb, 10 L. R, C. P. 334. In Hitchcock v. Giddinjrs, 4 Price, 136. where relief was pranted on the ground of mistake, a remainder man had -"M his interest in ignorance of the fact that the remainder had been barred by a common recovery Buffered by a tenant in tail. This was upon the principle that if A. sell property to B., under the impression that it is still in existence, when, in fart, it has been destroyed, there it a mistake of fact which entitles B. to detain or recover back the purchase money. See post, ch. 35, "Mistake." "Oliver v. Piatt, 3 How. (U. 8.) 41O; Miller v. Kml.-y. 23 Ark. 743: Wood folk v. lilount. 3 Hayw. (Tenn.) 147, 9 Am. Dec. 736; Lowry v. Brown, 1 Coldw. (Tenn.) 459. "2 Burr. 1012. DETENTION OR RESTITUTION OF THE PURCHASE MONEY. 711 existence of covenants for title in the conveyance under which he holds, and allowed to set off the incumbrances against the unpaid purchase money. The doctrine of subrogation is the creature of equity, and is in no wise dependent upon any contract or covenant between the parties. 15 The incumbrancer might subject the estate in the hands of the vendor to the payment of his debt, and his assignee would have the same right. Inasmuch, then, as any per- son buying the incumbrance, or paying it off, other than a mere volunteer, would be accorded that right, justice would- seem to require that a purchaser, paying off the incumbrance to protect his estate, should be treated- as an equitable assignee of the rights, powers and privileges of the incumbrancer, though he took a con- veyance without covenants for title; unless, indeed, it should appear that the existence of the incumbrance was known to him and influenced the consideration of the conveyance. It is suggested that in those localities in which it is the custom to convey with special warranty only, the purchaser should insist upon a provision in the conveyance by which he would have the right to detain the purchase money and surrender the estate to the vendor, if a paramount title thereto should be asserted in the future. But if such an agreement should be made, care should be taken to see that it is actually inserted in the conveyance. We shall see that similar agreements, forming part of the executory contract of sale, have been held to be merged in a conveyance of the premises without warranty, and were, therefore, unavailable to the purchaser where evicted by an adverse claimant. 16 268. EXCEPTION. VOID CONVEYANCE. An exception to the rule that the purchaser cannot recover back or detain the pur- chase money in a case where he has taken a conveyance without covenants for title has been held to exist in those cases where, for want of authority in the vendor to convey, the deed is absolutely void, 17 as where the sale and conveyance was made by an assignee 15 Sheldon Subrogation, ch. 1. Compare, Hancock v. Wiggins, 2S Ind. App. 449, 63 N. E. Rep. 242. " M Post, 269. "Shearer v. Fowler, 7 Mass. 31; Williams v. Reed, 5 Pick. (Mass.) 480, where the question rose upon a garnishment of the vendor by a creditor of the vendee, the creditor claiming that the vendee was entitled to a return of 712 MARKETABLE TITLE TO REAL ESTATE. in bankruptcy who had no authority for want of jurisdiction in the court to appoint him. 18 So, also, where the grantor, an ad- ministrator, had acquired title by purchasing the premises at his own sale and had paid the purchase money out of the funds of the estate. 19 So, where a married woman, who had not been privily examined when she joined her husband in executing a deed; ejected the purchaser, the representatives of the husband were restrained from collecting the purchase money. 20 It has been held that if the grantor be a married woman, and her deed be void for non-joinder of her husband or other reason, the purchaser can- not recover back the purchase money from her, unless the same remains undisposed of in her hands, or has been converted into other property so that it can be traced. 21 The rule that the grantee is entitled to no redress where the deed does not contain covenants of title, does not apply where the conveyance was of lands forming a part of the public domain to which the grantor had no title. The reason for this exception is that public lands cannot be made the subject-matter of private contract, and such a conveyance, being utterly void, the grantee therein is entitled the purchase money, and seeking to subject it to his claim. Dill v. Ware- ham, 7 Mtet. (Mass.) 438; Holden v. Curtis. 2 X. H. 61. "Earle v. Beckford 1 , 6 Allen (Mass.), 549: 83 Am. Dec. 651. "Beck v. Ulrieh, 19 Pa. St. 636, 53 Am. Dec. 507. "Lane v. Patrick, 3 Murph. (N. C.) 473. "Scott v. Battle, 85 N. C. 184, 191, 30 Am. Rep. 694, whore it was said: " If in a case like the present a feme covert should retain and have actually in hand the money paJd her as the consideration for her imperfect and dis- affirmed contract, her vendee would be permitted to recover the same at law, or if she had converted it into other property so as to lie traceable, he might pursue it in its new shape by a proceeding in rem, and subject it to the satis- faction of his demand. But if nhe has consumed it, as it is admitted thin plaintiff has done, the party paying it is without remedy, and this because of the policy of the law which forbid* all dealings with feme* covert, unless conducted in the manner prescribed by the statute, and which throws the risk in every such case upon the party that knowingly deals with her." See, also, Martin v. Dwelly, 6 Wend. (N. Y.) 9, 21 Am. Dec. 2*5; Jones v. Cohen, 82 N". C. 75, 81. A contrary view to the above was taken in Shroyer v. Nickel!, 55 Mo. 264. where it was held that a feme covert grantor, suing to recover the premises, her deed l*ing void for want of proper acknowledg- ment, moat refund the purchase money, and judgment in her favor wa made conditional upon such repayment. This seems the more equitable view. DETENTION OR RESTITUTION OF THE PURCHASE MONEY. 713 to have the purchase money restored, and he may recover it back in assumpsit. 22 These principles have been extended to a case in which the void conveyance contained covenants for title, and the grantee had not been disturbed in the possession. In that case, the conveyance was by an officer of a court under an order which was void for want of jurisdiction. It was held that the grantee might detain the pur- chase money, though the conveyance contained covenants for title, and the grantee had not been evicted or disturbed by adverse claimants. 23 The rule that the purchaser cannot recover back the purchase money when the contract has been performed on the part of the vendor by the execution of a conveyance, does not apply where the "Lamb v. James, 8 Tex. 485, citing Garber v. Armentrout, 32 Grat. (Va.) 235; Lawson's Rights & Rein. 3691. 23 Puckett v. McDonald, 6 How. (Miss.) 269. The court said in this case: " We freely admit the doctrine that where the vendee of land is let into possession under a deed with full covenants, and there has been no eviction nor any fraud, that he cannot resist the payment of the purchase money on the alleged ground of a defect of title. In such case, he is driven to his remedy upon the covenants in his deed. This case, however, is widely differ- ent from those where this doctrine is applied. Here the vendors were only acting as trustees in carrying into execution an order of the probate court. That order is void, and consequently nothing passes or can pass by their subsequent act. The sale is virtually made by the court, and the admin- istrators act only as commissioners to execute the order of sale. Their covenants in such circumstances cannot furnish a foundation upon which an action can be maintained against them personally, nor any protection to the vendee; nor can the vendee be supposed to place any reliance upon such assurances, since the contract itself, from its nature, is intended to convey only the title of the deceased (the sale of the decedent's lands had been ordered on an ex parte application of his administrators without notice to the heirs). The purchaser must necessarily in such case rely upon the title of the deceased, and the validity of the order of sale by the court. This view of the subject appears to be fully sustained by the authorities. See 2 Stew. (Ala.) 335 (Wiley v. White) ; S Mass. 46 (Bliss v. Xegus). It is absolutely void, and so shown to be by the record of the court. No eviction is*, therefore, necessary, since the paramount title of the heirs is as effectually established by the evidence as it could be by the record of eviction." See, as to the necessity of surrender of the premises in the case of a void executory con- tract, ante, 263. 90 714 MAKKKTABLE TITLE TO REAL ESTATE. conveyance is rejected by the vendee as being insufficient and not such as he is entitled to receive under the contract. 24 2G9. MERGER IN THE CONVEYANCE OF ALL AGREEMENTS RESPECTING THE TITLE. All agreements between the parties respecting the title, whether verbal or in writing, are, as a general rule, merged in the conveyance of the premises; so that, notwith- .-tanding an agreement by the vendor that the purchase money hould be applied to the removal of adverse claims, or should be withheld if the title failed, the purchaser, accepting a conveyance without covenants for title, will, in the absence of fraud or mis- take, be compelled to pay the purchase money. 25 And promises, express or implied, to give a good title are merged in a conveyance * Guttsohliek v. Bank of the Metropolis, 5 Cranch (C. C.), 435. In this case, it seems that the purchaser rejected the deed on the ground of in- sufficient execution liy the vendor, a bank, the deed being from the president of the bank, under his private seal, and not under the seal of the corporation. The court said that the purchaser might offer the deed in evidence with other facts showing the title to be defective. "Rawle Covts. (5th ed.) 320; Howes v. Barker, 3 Johns. (N. Y.) 506, 3 Am. Dec. 520, where it was held that this rule prevented the purchaser from showing that there was a mistake in the quantity of land conveyed, and from maintaining an action of assumpsit to recover the deficiency. Fol- lowed in Houghtaling v. Lewis, 10 Johns. (X. Y.) 297, and Bull v. Willard, Barb. (N. Y.) 641, upon similar facts. The presumption of law is, that the acceptance of a deed in pursuance of articles is satisfaction of all pre- viiMis covenants, and where the conveyance <-2 Ind. ftjiii; I..- v. Hill. 102 I nil. 42, 1 N. K. Hep. fxl; Thompson v. Christian, 28 Ala. S.-it/inger v. Weaver, 1 Rawle (Pa.). 377; Jones v. Wood. Hi Pa. St. 'J.~i. l'm:i ^eldni v. William-. !> Watts (Pa.), 12; I'.rown v. Morehead. s B (Pa.) 500; Anderson v. Ixjng, 10 S. & R. (Pa.) 55. and Penn.-ylvania cases 1 ited infra, this section. In Jolm.son v. llailmrn. 3 Keyes (N. Y.), 12r. it \\;i- held that an t-xccni ment. whether written or oral, is Tiot merged in DETENTION OK RESTITUTION OF THE PURCHASE MONEY. 715 without covenants. 26 This doctrine has also been applied in exon- eration of the purchaser. Thus, it has been held that an agree- ment of the purchaser to erect a building of a certain value on the granted premises, was merged in a conveyance of the premises subsequently made, in which such agreement was not mentioned. 27 The case of Smith v. Chaney 28 affords a good illustration of this rule. There the vendor had agreed in writing at the time of the sale to abate the purchase money in proportion to the quantity of the land sold of which peaceable possession could not be given. Afterwards the purchaser accepted a conveyance of the premises without covenant-s, and having lost a part of the land through a subsequent writing by way of partial execution, unless the latter is ac- cepted in substitution or in full performance of the contract. In Coleman v. Hart, 25 Ind. 256, it was said that if the agreement was verbal it would be merged in the covenants of the deed 1 ; and this upon the familiar principle that a written contract is conclusively presumed to include all contempo- raneous agreements between the parties. The rule under consideration, how- ever, obviously depends upon a different principle of wider application, which is that the conveyance is a second contract of a solemn character, superseding all former contracts relating to the title, whether verbal or in writing. In Kramer v. Ricke, 70 Iowa, 535, 2i5 N. W. Rep. 278, there was a conveyance with warranty to the purchaser, and a contemporaneous agreement in writing by the vendor to remove all adverse claims at his own expense. In an action for the purchase money the purchasr defended on the ground that the plaintiff had not perfected the title as agreed, and the agreement in question was admitted in evidence. The question of merger of the agreement in the conveyance was not raised; the court and the parties seem to have assumed that the agreement was properly admitted in evidence. In a case in which the purchaser took a quit-claim deed of the premises, knowing that there was a defect in the title, and the vendor by a separate writing agreed to perfect the title, but without specifying any time therefor, and the purchaser, at the request of the vendor, executed his note to a third person for the pur- chase money, it was held that the giving of the note to a third party and the taking of the obligation of the vendor was a waiver of any defense to the note on account of the defective title, and that if the purchaser had any remedy it was upon the obligation of the vendor. The question of merger of this obligation in the quit claim was not raised. James v. Hays, 34 Ind. 272. 26 Clark v. Post, 113 N. Y. 17, 20 N. E. Rep. 573. "West Broadway Real Est. Co. v. Bayliss, (Md.) 31 Atl. Rep. 442. The question how far this decision is in conflict with the rule that collateral stipulations of which the deed is not necessarily a performance are not merged therein, deserves consideration. Post, this chapter. * 4 Md. Dec. 246. 716 MARKETABLE: TITLE TO REAL ESTATE. defect of title, sought to restrain the collection of the purchase money by injunction, but the court said : " This deed must be understood as taking the place of all previous agreements upon the subject, and as containing the full and entire contract of the parties; and yet we do not find in it any covenant in regard to the title of the vendor. It seems to me that if the purchaser had designed to guard himself against an apprehended deficiency in the number of acres, or any other defect in the title,- to the whole or any part of the land, he should have taken care to have had proper covenants inserted in the deed." The foregoing rule has been greatly modified in the State of Pennsylvania. It will be seen hereafter that a peculiar doctrine obtains in that State by which a purchaser who has taken a convey- ance without covenants for title in ignorance of any objections to the title is permitted to detain the purchase money upon failure of the title. 29 Another class of decisions there, having no necessary connection with this doctrine, establish the rule that an agreement by the vendor to remove incumbrances on the premises, or to re- fund the purchase money if the title should fail, and to reimburse the vendee for all costs and expenses incurred, will not be merged in a deed containing a covenant of special warranty, but no cove- nant which would embrace such agreement ; and that if the title should fail or incumbrances should appear the purchaser may not only detain, but may recover back the purchase money. Such an agreement is there considered to be independent of and collateral to the deed, whether made before or after the execution of the deed, and though not in writing has been held not to be obnoxious to the rule that a written instrument cannot be added to. modified 0 Iowa, 24, 12 N. \V. Rep. 745; Atwood v. Chapman, 68 Me. 38, 28 Am. Kep. 5. "Kirkland v. Wade, 61 Oa. 478. DETENTION OR RESTITUTION OF THE PURCHASE MONEY. 723 though he has not been evicted or disturbed in the possession. 39 The results of those decisions may be conveniently stated in the following propositions : "In Beaupland v. McKeen, 28 Pa. St. 130, 70 Am. Dec. 115, the court eaid, WOODWARD, J., delivering the opinion : " We have gone further in Penn- sylvania in relieving purchasers of real estate from payment of purchase money on the ground of defects and incumbrances than courts of justice have gone in any other State or country where the common law obtains. All ad- minister not only equitable relief while the contract remains executory, but after it has been executed by deed made and delivered, we give the purchaser, besides the full benefit of any covenants his deed may contain, the right to defend himself from payment of the purchase money, however solemn the instrument by which it is secured, if he can show a clear outstanding defect or incumbrance, unless he expressly assumes the risk of it. In England and in most of the States around us the equitable right of the purchaser to detain unpaid purchase money depends on the covenants in his deed. He is not compelled to pay what he could recover back in damages by action at law, but, as his equity springs from breach of a legal covenant, he has no title to relief where there is no covenant, or a covenant but no breach." It must not be supposed from this language that the presence or absence of covenants in the conveyance to the purchaser is of no importance in- this State. Under certain circumstances either is of the utmost importance, as will be seen hereafter. An exellent summary of the Pennsylvania doctrine is contained in the case of Wilson v. Cochran, 46 Pa. St. 230, 86 Am. Dec. 574. It is there said: " The detention of purchase money on account of breaches of the vendor's covenant is a mode of defense that is peculiar to our Pennsylvania juris- prudence, but the principle is well settled with us that where a vendor has conveyed with covenants on which he would be liable to the vendee in dam- ages for a defect of title, the vendee may detain purchase money to the extent which he would be entitled to recover damages upon the contract, and he is not obliged to restore possession to his vendor before or at the time of avail- ing himself of such a defense. Where there is a known defect, but no cove- nant or fraud, the vendee can avail himself of nothing, being presumed to have been compensated for the risk in the collateral advantages of the bar- gain. But where there is a covenant against a known defect, he shall not detain purchase money unless the covenant has been broken. If the covenant be for seisin or against incumbrances, it is broken as soon as made if a defect of title or incumbrance exist, but if it be a covenant of warranty it binds the grantor to defend the possession against every claimant of it by right, and is consequently a covenant against rightful eviction. To maintain an action for breach of it, an eviction must be laid and proved, not necessarily by judicial process or the application of physical force, but by the legal force of an irresistible title. There must be proof at the least of an involuntary loss of the possession. And as the right to detain purchase money is in the nature of an action on the covenant, and is allowed to prevent circuity, the vendee who seeks to detain by virtue of a covenant of warranty is as much , '24 MAKKETABLE TITLE TO REAL ESTATE. (1) A purciiaser who has received a conveyance of the purchased premises may defend himself against the payment of the purchase money whether the conveyance be with or without 40 covenants for title, wherever there is a clear failure of title on the part of the vendor, and whether there has been an eviction or not, unless h i expressly assumed the risk of the title, or unless the defect of title was known to him and he expressly took a covenant against it for his protection. 41 If the defect of title consist of an incumbrauce it is not necessary that he shall have discharged it in order to avail himself of the right to detain the purchase money. 42 Xor i> ir necessary that he shall have restored the possession of the premises to the vendor before making such a defense, if the retention of the premises be necessary to indemnify him for what he has already paid, 43 unless the vendor is merely seeking to foreclose a security for the purchase money, such as a vendor'- lien, in which no judg- bound to prove an eviction as if he were plaintiff in an action of covenant. Until eviction the covenant i.-i part of the consideration of the purchase money he agreed to pay, and holding the covenant he may not withhold the pun-ha-t* money. But after eviction he has a right to have his damages deducted from the purchase money. "The expression "without covenants," as used here and in the following pages, means without covenants embracing the defect of which tin- pun-ha-cr complains. If the defect he one not created by the grantor or hi- conveyance with special or limited warranty mily is the same as a cmve\ with no covenants at all, as respects the right to detain the purchase nnmcy. v. Noble, 67 Pa. St. IS. " Steinhatier v. Witman. 1 S. A U. (Pa.) 4&S, the lending cast-; Hart v. Porter. 5 S. & M. (Pa.i 2H1 : Shaiv v. Anderson. 7 S. & K. (Pa.) (51, 10 Am. Her. 421; Carnahan v. Hall. Add. (Pa.) 127 ; Ooucher v. Helmhold. I Miles (Pa.) 407; Beaupland v. McKeen, 28 Pa. St. 130. 70 Am. !>". IM; I.Iovd v. K.m-ell. IS Pa. St. 73; Youngman v. Linn. 52 Pa. St. 413: Cross v. N.il.le. <17 l St 74: Wil>..n's ApjM'al. M! Pa. St. inf.. In Seaton v. Harry. 4 W. & S. (Pa. 1M. a p;i r it ioner \\lio hid taken the whole premise* at a valuation .1 lli-wed to detain the valuation nn-ney to the extent of an incumbraii' on the prcmNi*) created by the ancestor. It will he remembered that a war- ranty of title is implied in cases of partition and exchange. Ante. 137. Unbind v. Miller. 3 w. A- s. (Pa.i :;!w : P,.ke v. Kelh. i:: 8. A i:. 165. In this rase, however, the i-i-ntraet wa-. executory. "WiNun v. CiH-hran, 46 Pa. St. I P.-yntell v. Spenser. 6 Pa. St. 256. The >aine rule exists where the cm, tract i- UMCatOTJ. Hen- haw v. (;.m>, 7 Pa. St. 117. Hut. <.f MUTM, the pur.hu-er mu.>t ultimately K've uj) the pu-.sessiiin. He rannot keep the land and the purchase money too. Congregation v. Mil i i-,. DETENTION OR RESTITUTION OF THE PURCHASE MONEY. 725 ment or decree over against the purchaser in case of a deficiency is asked. In such a case, if none of the purchase money has been paid and there has been no breach of any covenant by the vendor, it is no concern of the purchaser whether the title be good or bad and he must restore the possession. 44 An exception to the rule that the purchaser may detain the pur- chase money, though he has accepted a conveyance without cove- nants for title, exists in those cases where there is a deficiency in the quantity of land conveyed, unless the deficiency is so great that it is evidence of deceit. 40 Where the contract has been executed by deed, it will not be opened to allow for a deficiency in quantity even though there was a mistake as to the true quantity. 46 (2) The adverse title or incumbrance which will justify the pur- chaser in rescinding the contract and detaining the purchase money after a deed has been executed and where there has been no evic- tion, must not be merely such as creates a doubt as to the title ; it must amount to a clear failure of the title, 47 and if an incumbrance, 44 Hersey v. Turbett, 27 Pa. St. 424. See, also, Hulfish v. O'Brien, 5 C. E. Green (N. J.), 230, and. ante, 184. 45 Bailey v. Snyder, 13 S. & R. (Pa.) 160; Dickinson v. Voorhees, 7 W. & S. (Pa.) 353; Coughenour v. Stauft, 2(7 Pa. St. 191; Rodger* v. Olshoffsky, 110 Pa. St. 147, 2 Atl. Rep. 44. 48 Farmers' Bank v. Galbraith, 10 Pa. St. 490. 47 Ludwick v. Huntzinger, 5 W. & S. (Pa.) 58; Brick v. Coster, 4 W. & S. (Pa.) 494; Culler v. Motzer, 13 S. & R. (Pa.) 356, 15 Am. Dec. 604; Penn. v. Preston, 2 Rawle (Pa.), 19; Bradford v. Potts, 9- Pa. St. 37; Crawford v. Murphy, 22 Pa. St. 87; Asay v. Lieber, 92 Pa. St. 377; Little v. Thropp, 245 Pa. 539, 91 Atl. 924. A different rule prevails where the contract is still executory. A suit to recover purchase money on articles of agreement is in the nature of a bill for specific performance; hence, where the title to the land is doubtful or not marketable, the plaintiff cannot recover. Murray v. Ellis, 112 Pa. St. 492, 3 Atl. Rep. 845; Hertzberg v. Irwin, 11 Xorris (Pa.), 48. In Ludwick v. Huntzinger, 5 W. & S. (Pa.) 58, the court, after stating the rule as- above when the contract has been executed, continued : " It is proper to observe that a different principle governs where the contract for the purchase of land remains in fieri, and the action is brought on the con- tract itself with a view to enforce the payment of the purchase money according to its terms. There, if it should appear that the title of the vendor to the land is anywise doubtful, the vendee will not be held bound to pay the purchase money for it (5 Binn. 365), unless it should also appear that he had expressly agreed to do so. Dorsey v. Jackman, 1 S. & R. (Pa.) 42, 7 Am. Dec. 611; Pennsylvania v. Sims, Add. (Pa.) 9." 726 MARKETABLE TITLE TO BEAL ESTATE. it must equal in amount the whole of the unpaid purchase money. 48 If the Encumbrance goes only to a part of the purchase money, or if the title fails as to part of the premises only, the contract will not be rescinded, but the purchase money will be abated to the extent of the loss or injury suffered. 49 (3) Mere constructive notice of the existence of an ineumbrance or defect of title, as where these are disclosed by the record or lie in the chain of the vendor's title, is not sufficient to charge the pur- chaser with notice of the defective title and raise the presumption, where there are no covenants, that he assumed the risk of the title. 50 *McGinnis v. Xoble, 7 W. & S. (Pa.) 454; Dentler v. Brown, 11 Pa. St. 298. In these two cases it was also hold that the purchaser was not bound to pay off an ineumbrance maturing at a time when no installment of the purchase money was due. Harper v. Jeffries, 5 Whart. (Pa.) 26; Mellon 's Appeal, 32 Pa. St. 127. The rule stated in the text is also applicable where the contract is still executory. Garrard v. Lautz, 12 Pa. St. 192; Garrett v. Crosson, 32 Pa. St. 375; Renshaw v. Gaus, 7 Pa. St. 117. *Lee v. Dean, 3 Whart. (Pa.) 331; Stehley v. Irwin, 8 Pa. St. 500; White v. Lowery, 27 Pa. St. 255; Beaupland v. McKeen, 28 Pa. St. 134, 70 Am. Dec. 115. "Thomas v. Harris, 43 Pa. St. 231; Murphy v. Richardson, 28 Pa. St. 293; Roland v. Miller, 3 W. & S. (Pa.) 390, semble; Banks v. Ammon, 27 Pa. St. 172, semble; Wilson v. Cochran, 46 Pa. St. 232, semble; 86 Am. Dec. 574. In Thomas v. Harris. 43 Pa. St. 241, it was said upon this point: "In the case now before us, the only ground for a presumption that the purchaser agreed to run the risk of any claim of the widow to dower is that he took a deed from her under a decree of the court for the estate of the deceased husband, and also for her own interest, when, it is said, he knew or should have known that she wa entitled to dmver in the land if she conveyed only her husband'* interest. No evidence of actual knowledge is in the case. * He is chargeable, therefore, only with constructive notice of any defect in the title. In such a case there is no reason that a purchaser binds himself to pay the purchase money, no matter what may prove the defects of title. It is only when he has actual knowledge of the defect that he is presumed to waive compliance with the covenant of his vendor. Were it not so, a vendor's deed on record to a third person would not excuse a subsequent pur- chaser from him from paying all the agreed purchase money after he has accepted a deed, an injustice too revolting to find any place in the law. But where the question is whether the vendor has fraudulently withheld from the purchaser knowledge of the existence of an ineumbrance on the premises, and whether the purchaser had waived the right to rewind by per- forming the contract with notice of the ineumbrance, a different rule from that stated in the text has been applied in Pennsylvania. In such a case, Stephens' Appeal, 87 Pa. St. 202, it was held that the record of the im um- DETENTION OR RESTITUTION OF THE PURCHASE MONEY. 727 If the purchaser has taken covenants with knowledge of the existence of a defect or incumbrance, his right to recover on the covenants will not be affected thereby, for it will be presumed that he took the covenants expressly for his protection. 51 But if he took no covenants, then it becomes important to inquire whether he intended to risk the title, and upon this question his knowledge of the existence of the defect or incumbrance is of the utmost importance. 52 (4) The fact that the purchaser, with knowledge of the de- fective title, accepts a deed without covenants against the defect, raises a presumption that he assumed the risk' of the title, 63 and was compensated for the risk in the collateral advantages of the bargain ; 4 but such presumption is not conclusive, and may be rebutted by the purchaser in an action against him for the pur- brance " was constructive notice to the purchaser equally as effective as actual notice," citing Evans v. Jones, 1 Yeates (Pa.), 172; Kuhn's Appeal, 2 Barr (Pa.), 264. Both of these, however, were cases arising between the purchaser and a prior purchaser or creditor, and not between purchaser and vendor upon the question of notice as affecting the right to rescind. In Peck v. Jones, 70 Pa. St. 84, where the record disclosed the defect and there was nothing to show that the vendor had actual knowledge thereof, the court said that the purchaser was as much chargeable with notice of the defect from the record as the vendor. Xor is the rule that constructive notice of defects from their appearance of record will not affect the purchaser's rights against the vendor held to apply in Pennsylvania, where the purchaser seeks to rescind an executoiy contract and recover back payments made in ignorance of the existence of an incumbrance on the property. In such a case it is said that the constructive notice which the record of a judgment lien, standing in the line of the vendor's title, gives to the vendee, is as effectual as actual notice. Boyd v. McCullough, 137 Pa. St. 7, 20 Atl. Rep. 630. "Thomas v. Harris, 43 Pa. St. 241. 52 Cases cited supra, n. 41, p. 724. "Ludwick v. Huntzinger, 5 W. & S. (Pa.) 58; Lighty v. Shorb, 3 Pa. 447, 23 Am. Dec. 334; Smith v. Sillyman, 3 Whart. (Pa.) 589; Hart v. Porter, 5 S. & R. (Pa.) 201; Fuhrman v. Loudon, 13 S. & R. (Pa.) 386, 15 Am. Dec. 60S; Beidelman v. Foulk, 5 Watts (Pa.), 308; Ross' Appeal, 9 Pa. St. 491. He is chargeable with constructive notice of the incumbrance if the fact of its existence could have been discovered by inquiry of a party in possession of the property. Lazarus v. Coal Co., 246 Pa. 178, 92 Atl. 121. 54 Lighty v. Shorb, 3> Pa. St. 452, 34 Am. Dec. 334; Youngman v. Linn, 52 Pa. St. 413; Lazarus v. Coal Co., 246 Pa. 178, 92 Atl. 121. 728 MARKETABLE TITLE TO REAL ESTATE. chase money. " This rule is materially moditied by that which follows next. (.")) The acceptance of a deed without covenants, when the pur- chaser has notice of a pecuniary incumbrance on the property, which can be discharged out of the purchase money, does not raise a presumption that the purchaser assumed the risk of the title; that is, the payment of the incumbrance in addition to the purchase money. 6 ' On the contrary, the presumption is that the purchaser intended to apply the purchase money to the satisfaction of the incumbrance. It has been held, however, that this rule does not apply where the purchaser secures the purchase money by the execution of a written obligation to pay the same after he receives notice of the incumbrance. 07 The exception would seem prac- tically to destroy the rule, for it is but seldom that the vendor delivers a conveyance of the property until he has received a writ- ten obligation of some kind to pay the purchase money. If the purchaser has notice of an incumbrance or defect, and takes a deed with a covenant which embraces it, the presumption "Rawle Covts. 344. Thomas v. Harris, 43 Pa. St. 231; Drinker v. Byara, 2 Pa. St. 528. The rule stated in the text is the inevitable conclusion from the decision rendered upon the facts in this case, though it is not therein announced in so many words. Doubts having arise n about the title, the pur- chaser took from the vendor an agreement to save him harmless in case any adverse title should be successfully maintained, and then accepted a deed without covenants against the anticipated claims. The purchaser lost a part of the property by the successful assertion of these claims, and he was allowed to set up that fact as a defense to an action on the purchase-money mort- gage. " Such a decision," Mr. Rawle observes, " could not have been mnde if the purchaser's notice and the absence of a covenant were deemed conclusive evidence that he was to run the risk of the title," and Mr. Rawle 's observa- tion is fully sustained by the case of Smith v. Chancy, 4 Md. Ch. 24(5, where, under precisely similar circumstances, the purchaser was denied relief, the court saying that the agreement for indemnity was merged in the conveyance without covenant*. *Wol1ert v. Lucas, 10 Pa. St. 73, 49 Am. Dec. 578. " Lukens v. Jones, 4 Phila. (Pa.) 18, distinguishing Wolbert v. Lucas, 10 Pa. St. 73, 49 Am. Dec. 578. This was not a decision of a court of last resort, and possibly may not be recognized in Pennsylvania as of binding authority. The report does not show whether there was a conveyance to the purchaser or not. Presumably there was, for otherwise the case would have been more clearly distinguishable from Wolbrrt v. Lucas, supra, where there was conveyance without a covenant embracing the incumbrance. DETENTION OR RESTITUTION OF THE PURCHASE MONEY. 729 is that the covenant was taken by the purchaser for his protection, and he cannot detain the purchase money unless the covenant has been broken. 68 5S Lighty v. Shorb, 3 Pa. St. 447, 34 Am. Dec. 334; Fuhrman v. Lundon, 13 S. & R. (Pa.) 386, 15 Am. Dec. 608; Horbach v. Gray, 8 Watts (Pa.), 497; Ives v. Niles, 5 Watts (Pa.), 323; Smith v. Sillyman, 3 Whart. (Pa.) 539; Bradford v. Potts, 9 Pa. St. 37; Juvenal v. Jackson, 14 Pa. St. 410; Kerr v. Kitchen, 17 Pa. St. 433; Murphy v. Richardson, 27 Pa. St. 293; Wilson v. Cochran, 46 Pa. St. 230, 86 Am. Dec. 574; Youngman v. Linn, 52 Pa. St. 413; Wilson's Appeal, 109 Pa. St. 106. In the case of Eby v. Elder, 122 Pa. St. 342, 15 Atl. Rep. 423, the purchaser, under a conveyance with a covenant against incumbrances, resisted the payment of the purchase money on the ground that the premises were traversed by a private right of way which impaired their value. The court charged the juxy that if they found from the evidence that at the time of the purchase the land was openly and plainly subjected to the easement; that the physical condition of the ground was openly and plainly affected thereby, then, since there was no express agreement or covenant relating thereto, the continuance of the easement would not be a breach of the covenant against incumbrances, and the plaintiff would be entitled to recover the purchase money. This decision was affirmed on appeal. The same decision had been previously made in the case of Wilson v. Cochran, 48 Pa. St. 108, 816 Am. Dec. 574. The ground of these decisions was that the purchaser could not detain the purchase money unless there had been an eviction, and that there could be no eviction where he purchased with actual notice of the incumbrance. Mr. Rawle comments upon the latter case as follows : " While the court say expressly that the existence and user of a paramount right of way was a breach of the covenant of war- ranty, when the purchaser had notice of it, yet, that, nevertheless, this would not constitute an eviction when the purchaser had such notice; but this is hardly the correct manner of stating the proposition, for in both cases he is equally evicted, and none the less so by reason of his knowledge; but in the latter instance he is not allowed to detain the purchase money for the reason that the possible assertion of the paramount right constituted one of the elements of the contract, and was within the intention of both parties when the deed was made." The result of this reasoning is that in some cases the purchaser cannot detain the purchase money even though there has been an eviction. It is to be observed that both of the foregoing cases were those in which relief was claimed on account of a physical incumbrance. There would seem to be no doubt as to the right of the purchaser to protect himself against a known pecuniary incumbrance, and to detain the purchase money in case of an eviction. Rawle Covts. 347, et seq. A purchaser with general warranty is chargeable with notice of an incum- brance caused by a public highway through the purchased premises, and it will be conclusively presumed that he estimated the disadvantages to the premises thence ensuing in adjusting the purchase price. But if the incum- brance consist of a private right of way the rule is different, and he will be 92 730 MARKETABLE TITLE TO REAL ESTATE. In respect to the right to recover back the purchase money the rule in Pennsylvania is the same as that which generally exists elsewhere, namely, that if the purchaser has failed to protect him- self by taking covenants for title embracing the defect of which he complains he cannot recover back the purchase money by way of damages for breach of the contract. 59 If he has taken such cove- nants and they have been broken, he cannot recover back the pur- entitled to detain the pun-base money to the extent of the damages caused him by the road, if he purchased without actual knowledge of the easement. Wilson v. Cochran, 48 Pa. St. 107, 89 Am. Dec. 574; Eby v. Elder, 122 Pa. St. 342. 15 Atl. Rep. 423. The same rule has been observed elsewhere. Butt v. RifTe, 7& Ky. 352. The grounds upon which these decisions rest, so far as they apply to the public highway, is the open, notorious and visible char- acter of the incumhrance. It is not easy to perceive why the same reasoning would not apply in the case of a private right of way sufficiently marked by travel to attract the attention of a purchaser. "Moss v. Hanson, 17 Pa, St. 379: Dorsey v. Jackman, 1 S. & R, (Pa.) 42. 7 Am. Dec. (HI; Light y v. Shorb, 3 Pa. 447, 34 Am. Dec. 334; Kerr v. Kitchen. 7 Pa. St. 486. In Steinhauer v. Witman, 1 S. & R. (Pa.) 4.38, Judge YEATES admitted that money paid, where there was a conveyance but no covenant, could not be recovered back, and observed that it was a hardship but that such was the law. " To adopt a cant expression, ' the funeral has pa^ed by, the dead cannot be resuscitated.' Hut in my sense of the Penn- sylvania system of law, there is a locus pirnitentiir until the money is paid. Something remains in fieri, and the plain dictates of common sense and common honesty point out the correct path to l>e pursued." It was prohablv thi- vigorous language that led to the distinction of Judge VKATKS as the early champion and advocate of what is known as " the Pennsylvania equitable doctrine " as to detention of the purchase money. In a note to the case of Goettel v. Sage, 27 Am. Law Reg. (N. S.) 250, 1888, S. C., 117 Pa. St. 208, 10 Atl. Rep. 8S9, it is said that the distinction between detention and recovery back of the purchase money seems to have disappeared. The writer cites no authority for this proposition, unless the cases Johnson's Appeal, 114 Pa. St. 132, 6 Atl. Rep. 500; Wilson's Appeal, 10U Pa. St. 000, and Babcock v. Day, 104 Pa. St. 4, referred to in a general way by him, are intended a.s such. In each of these the contract was re- scinded on the ground of mutual mistake of the parties respecting the title, a form of relief to the purchaser referable to entirely different principle* from those upon which he is permitted to detain the purchase money in Pennsylvania. See Rawle's Covts. (5th ed.. 1887), 88 335, 351, where the right of the purchaser in that State to recover back the purchane money (aa damages where he has failed to take covenants, i- denied. Also, Farmers' Bank v. Galbraith, 1<> I'a. St. 490; Phillip* v. Scott, 2 Watts (Pa.), 318; Croninter v. Cr on inter, I W. &. S. (Pa.) 442; Frederick v. Campbell, 13 S. & R. (Pa.) 130; Boar v. McCormick, 1 S. & R. (Pa.) 106. DETENTION OE RESTITUTION OF THE PURCHASE MONEY. 731 chase money eo nomine, by action of assumpsit, but must resort to his covenants. 60 If the purchase money remains unpaid and the covenants have been actually broken and a present right to recover damages has accrued to the purchaser, he may, to prevent a circuity of action, detain the purchase money to the extent of such dam- ages. 61 It has been held, however, in Pennsylvania, that a stipula- tion by the vendor, verbal or written, to refund the purchase money and reimburse the purchaser for expenses incurred in case the title should fail, will not be merged in a deed subsequently accepted by the vendee which Contains only a covenant of special warranty. 62 The Pennsylvania equitable doctrine will not justify the purchaser in detaining the purchase money where he is disturbed in the pos- session by a mere wrongdoer. 63 Xor does it apply in a case in Tia/wle Covts. (5th eel.) pp. 554, 576, n. "Christy v. Reynolds, 16 S. & R. (Pa.) 258; Ives v. N'les, 5 Watts (Pa.), 323; Poyntell v. Spencer, 6 Pa. St. 257; Wilson's Appeal, 109 Pa. St. 606. 02 Close v. Zell, 141 Pa. St. 390, 21 Atl. Rep. 770, citing Drinker v. Byers, 2 Pen. & W. (Pa.) 528; Richardson v. Gosser, 26 Pa. St. 335; Cox v. Henry, 32 Pa. St. 18. The purchaser having been induced to accept the conveyance in consideration of such agreement, the rule against the admission of parol evidence to alter a written contract does not apply in such case. Walker v. France, 112 Pa. St. 203, 5 Atl. Rep. 208. 63 Spear v. Allison, 20 Pa. St. 200. M Fox v. Mensch, 3 AVatts (Pa.), 493; King v. Gunnison, 4 Pa. St. 171. The purchaser may, it seems, object to the title before confirmation of the sule. Kennedy's Appeal, 4 Pa. St. 149. This is unimportant, however, as rospects the practical application of the rule stated in the text, since there can be no valid conveyance until the sale has been confirmed. Bashore v. Whisler, 3 Watts (Pa.), 493, where it was said: "It cannot now be ques- tioned that a defendant may allege defect of title in the whole or in part, as a defense in a suit brought by a vendor against a vendee to recover unpaid purchase money. This principle, which was first ruled in Steinhauer v. Witman, 1 S. & R. (Pa.) 438, has been since affirmed in Hart v. Porter, 5 S. & R. (Pa.) 200, and in other cases to which it is unnecessary particularly to refer. Although this principle as applied to private contracts is un- doubted, yet it has never been understood, either by the profession or the public, to be applicable to judicial sales. In Friedly v. Scheetz, 9 S. & R. (Pa.) 156, 11 Am. Dec. 691, it was ruled that a sheriff's sale cannot be objected to by the purchaser, merely on the ground of defect of title, but that in all such cases it is binding except where there be fraud or misdescription of the property in some material respect. It was also ruled in the same case, that a purchaser cannot object to a sheriff's sale because of a defect of title of which he had notice. That, therefore, when he has bought after 732 MARKETABLE TITLE TO HEAL ESTATE. which the purchase was made at a sale under a decree of court," or a sale by a sheriff or other officer. 65 Rules in respect to the detention of the purchase money, in manv respects similar to those which prevail in the State of Pennsylvania, exist in the States of Texas and South Carolina, being publicly notified at the sale of such defect, he cannot give evidence of want of title in a suit brought against him for the purchase money. The doctrine of Steinhauer v. Witman does not extend to judicial sales, nor has it been contended by any one that the usage asserted and maintained by Justice YEATES extended to them. At a judicial Rale the interest of the debtor and no more is sold. The purchaser acquires the title puch as he held it. There is no warranty of title; and if the vendee of the sheriff purchases without a sufficient examination it is his fault, and is a matter with which the debtor has 1 no concern. He agrees to run the risk of the title. The rule is careat emptor." Friedly v. Scheetz, 9 S. & R. (Pa.) 181; 11 Am. Dec. 691; Weidler v. Bank, 11 S. & R. (Pa.) 134. The Pennsylvania equitable doctrine has resulted in several peculiarities, if not incongruities. For example: (1) t'nder some circumstances the purchaser has greater rights- as- a plaintiff than as a defendant; thus, the fact that he was aware of the defect of title at the time he took a conveyance with covenants embracing the defect will not affect his right to recover on the covenant. This is the rule everywhere. But if with knowledge of the defect he took no covenant he cannot, as a general rule, detain the purchase money. (2) Under other circumstances he has greater rights as a defendant than as plaintiff; thus, as we have here- tofore seen, if he takes a deed without covenants he may, as defendant, detain the purchase money if he was ignorant of the defect of title when the deed was made, while under the same circumstances he could have no relief what- ever as plaintiff. And again, he may in such case exercise his right to detain the purchase money though he has never been evicted, while if he had taken a conveyance with covenants of warranty he could neither detain the pur- chase money, nor recover it back as damages, unless he had been actually or constructively evicted. (3) In Wilson v. Cochran, 46 Pa. St. 230, it is said that the vendee may detain the purchase money to the extent which he would be entitled to recover damages upon his covenants, and that he is not obliged to restore possession to his vendor before or at the time of availing himself of such defense, from which it is to -be inferred that he may make such defense thouph he has not been evicted ; and yet in the same opinion it is Baid that the right to detain the purchase money is in the nature of an action on the covenant, and that the vendee who seeks to detain by virtue of a covenant of warranty is as much bound 1 to prove an eviction as if he were plaintiff in an action of covenant. It will be remembered that there are several derisions supporting both of these propositions. It is difficult to per- ceive of what benefit to the purchaser in the permission to make a certain defense without restoring the- possession, when his right to make such a defense is altogether predicated upon the fact that he has been turned- out of DETENTION OR RESTITUTION OF THE PURCHASE MONEY. 733 and may be seen in a foregoing part of this work. 66 Some apology is due the student for considering at such length rules relating to the detention of the purchase money applicable only in particular localities. The rules in question mark the greatest innovations and inroads upon the doctrines of the common law in that regard that have been made in America, and it has been deemed expedient to set them forth with considerable particularity. the possession, or has never been able to get possession. But these incon- sistencies or incongruities are perhaps no more illogical than the universal rule which permits the purchaser to detain the purchase money where he is entitled to recover damages for breach of a covenant, and denies him the right to recover back that which has been already paid. The foregoing observations have been made merely to illustrate the difficulties and per- plexities into which a partial departure from the rules of the common law controlling the rights of the grantee has led. The remedy would seem to be either to maintain a strict adherence to those rules, or to cut them up root and branch and supply their place with others framed in the spirit of the civil law which rejects the maxim caveat emptor, and decrees the reim- bursement of the purchaser wherever he loses the estate through defective title, the risks of which he did not accept, without regard to the existence or non-existence of covenants for title on the part of the vendor. '"Ante, 18&, 190. In Louisiana it is provided by statute that the grantee, if evicted under a superior title, is entitled to a return of the pur- chase money, though there was no warranty of the title, unless he knew of the defects in his grantor's title, and purchased at his peril. Ellis v. Cross- ley, 119 Fed. Rep, 779. CHAPTER XXVIII. OF RESTITUTION" OF THK PURCHASE MONEY WHERE THERE ARE COVENANTS FOR TITLE. GENERAL RULE. 272. EXCEPTIONS. 273. 272. GENERAL RULE. We have seen that after a contract for the sale of lands has been executed by a conveyance to the purchaser, he may, for the avoidance of circuity of action, detain the purchase money in all cases where there has been such a breach of the covenants for title, as would entitle him to recover sub- stantial damages against the grantor. This, however, is solely for the avoidance of circuity of action, and he can in no case, after the contract has been executed, recover back the purchase money as such. We. therefore, state the following proposition: PROPOSITION VI. After a contract for the sale of lands has been executed by a conveyance, ivith covenants for title, the purchaser cannot ; though he has been evicted by one claiming under a para- mount title, or has discharged an incumbrance on the estate, recover ba-ck the purchase money eo nomine, either by suit in equity, or by action against the vendor for money had and received to the plain- tiff's use. His remedy is upon the covenants for title. 1 '1 Supl. Vend. (8th Am. ed. i ; Rawle Covt. (5th ed.) 320. Tillotson v. Grapes, 4 N. H. 448; Banks v. Walker, 2 Sandf. Ch. (N. Y.) 348; Hunt v. Arindon, 4 Hill (N'. Y.), 345; 40 Am. Dec. 283; Miller v. Watson, 5 Cow. (N. Y.) 105; 4 Wend. (X. Y.) 267; Meyer v. Shoemaker, 5 Barb. (N. Y. S. C.) 319; Willy v. Hiphtmver. Sm. & M. (Mi*s.) 345; Maner v. Washing- ton, 3 Strobh. Eq. (S. C.) 171; Major v. Brunh, 7 Ind. 232; Davenport v. WhMer. 46 Iowa, 2*7; Wilson v. Irish, 62 Iowa. 260; 17 N. W. Rep. 511: TempMon v. JackKon, 13 Mo. 7ft; Smyth v. Boron", 156 Mo. App. 18; 135 S. W D73; Renter v. La we, 86 Wi. 106; Earlc v. De Witt, 6 Allen (Mans.). 526; Joyce v. Ryan. 4 C.reenl. (Me.) 101; Van Riswick v. Wallarh, 3 McArth. (I). C.) 3SH. In Bradley v. Dibrell. 3 Heink. (Tenn.) 522, where the covenantor included in bin conveyance about twenty acres to which he had no title and poMsetwion of which was not delivered to the covenantee, com- pensation for the deficiency wan decreed to the covenantee. There wan a constructive eviction here and the plaintiff might have recovered at law on 1734 J RESTITUTION OF PURCHASE-MONEY. 735 This rule is comparatively of little importance to the purchaser where an actual breach of the covenants has occurred, for, in an action on the covenant, the damages are measured by the purchase money, so that, practically, the purchase money is recovered back in this form. 2 If the purchaser cannot recover back the purchase money, eo nomine, after a breach of the covenant has occurred, a, fortiori he cannot recover it back before the happening of the breach. As respects the covenants of seisin, which is broken as soon as made if the covenantor have no title, we have seen that a purchaser will, in some of the States, be allowed to detain the purchase money, if it clearly appears that the title is worthless, and he tenders a reconveyance to the grantor. 3 But there seems to be no case in which the covenantee has been suffered to recover back the purchase his covenants, but relief in equity seems to have been granted on the ground of fraud 'by the vendor. In Fitzpatrick v. Hoffman, (Mich.) 62 N. W. Rep. 349, it was held that a grantee with warranty who had been compelled to satisfy to an adverse claimant the value of timber cut from the warranted lands, might recover the amount so expended in assumpsit against the grantor. In the case of Oliver v. Kneedler, 141 Iowa, 158; 119 N". W. 525, a grantee of vacant lots with warranty was permitted to recover the con- sideration money on failure of the title, though there had been no breach of the warranty. The court said that the action was for recovery of the consideration, and not for damages for breach of warranty. In Mengel Box Co. v. Ferguson, 124 Tenn. 433; 137 S. W. 101, it was held that a suit in equity might be maintained to recover damages for breach of covenants of seisin and of warranty. In Mississippi, it is held that the covenantee may sue either in equity or in assumpsit to recover the purchase money, even though he has not been actually or constructively evicted from, the premises. Copwood v. McCandless, 99 Miss. 364; 54 So. 1007. In Oklahoma, the cove- nantee, when sued for the balance of the purchase money, may by way of counterclaim, recover such of the purchase money as he has already paid. Joiner v. Trust Co., 33 Okl. 266; 124 Pac. 1073. *It is frequently said, as in Kerr v. Kitchen, 7 Pa. St. 486, that a pur- chaser cannot recover back the consideration money after acceptance of a conveyance, unless there be fraud or warranty. This is an expression likely to mislead unless it is borne in mind that the damages for a breach of war- ranty are measured by the consideration money. Strictly speaking he re- covers damages for the fraud or breach of warranty and not the consideration money eo nomine. 3 Ante, Ch. 26. 736 MAKKETABLE TITLL. TO BEAL. ESTATE. money, in an action at law, 4 upon like conditions.* A different rule prevails at the civil law. If the purchaser does not get such a title as his contract requires, he can, irrespective of the existence of covenants for title, recover back the purchase money, 6 upon coii- 4 In Elliott v. Garvin, 166 Fed. 278; 92 C. C. A. 190, a claim against the estate of a deceased covenantor for the amount of the purchase, the title having failed, was allowed. *Mr. Fawlc says in this connection: "It would at first sight seem imma- terial whether the position, of the purchaser were that of a defendant resist- ing payment of the purchase money, or that of a plaint ill seeking to recover it bac-k in an action for money had and received, as there would seem to be no reason on principle why, if the purchaser have a right permanently to detain unpaid purchase money on the ground of a defect of title, he should be prevented from, recovering back that for which he has received no value. But the position of a purchaser of real estate as a plaintiff, must at law necessarily be confined to a -suit upon the covenants in his deed, which suit (though the same end be obtained by means of it) depends to some extent upon different principles and machinery from an action which seeks to rescind the contract and recover back its consideration. Hence, it may be safely said that, at law, a purchaser has no right, after the execution of his deed, to recover back his consideration money on the ground of a defect or failure of title. His remedy in such case is by an action of covenant, and not by an action of assumpsit. But when the position of the purchaser is tliat of. a defendant, although 'the technical rule remits him back to his covenants in his deed,' yet, as has been said, it is now considered that he should not IHJ compelled to pay over purchase money which he might the next day recover in the shape of damngea for a breach of hi-3 covenants, and hence, to prevent circuity of action, the defense at law of a failure of title lias been in some cases allowed." Bates v. Delavan, 5 Paige Ch. (X. Y.) 306, where it waa said by WAL- WOKTII, Ch.: "By the civil law an action of redhibition, to rescind a sale and to compel the vendor to take back the property and restore the purchase money, could be brought by the vendee, wherever there wan error in the essentials of the agreement, although both parties were ignorant of the defect which rendered the property sold unavailable to the purchaser for the purposes for which it was intended. * * * I agree, however, with the learned commentator on American Law (2 Kent Com. [2d ed.] 473), that the weight of authority both in this State and in Kngland is against this principle, so far as a mere failure of title is concerned, and that the vendee who has consummated his agreement by taking a conveyance of the property, must be limited to the rights which he has derived under the covenants therein, if he has taken the precaution to secure himself by covenants." In Louisiana where legislation is cast in the moulds of the civil law, the pur- chaser may upon a complete failure of the title, recover back the purchase money to nomine, though he has taken a conveyance with warranty. Boyer v. Amt, 41 Ka. Ann. 725. RESTITUTION OF PURCHASE-MONEY. 737 dition only that he restore the premises to the vendor. 7 Nor in such a case can he recover upon a contemporaneous agreement by the vendor to refund the purchase money if the title should fail. All such agreements are merged in the conveyance, and the pur- chaser must seek his remedy on the covenants therein contained, if any. 8 Neither can the covenantee, upon breach of the covenants for title, maintain a bill in equity to compel the vendor to restore the purchase money paid. His remedy at law upon the covenants is complete. 9 If the purchaser accept a conveyance of the premises from a third person instead of the seller, and is afterwards evicted by one holding a better title, he is, in the absence of fraud, without remedy against the seller. His remedy is upon the covenants in the deed which he accepted. 19 273. EXCEPTION'S. The rule that the purchaser cannot re- cover back the purchase money after the contract has been exe- cuted by a conveyance with covenants for title does not apply where by mistake there is no such land as the deed purports to convey, 11 nor where the deed is so defective that it is absolutely inoperative as a conveyance. 12 In one of the States, at least, and possibly in others, if, after payment of the purchase money and delivery of a deed, it is found that the title conveyed is worthless, a suit in equity for rescission of the contract and return of the purchase money can 7 Brown v. Reeves, 19 Mart. (La.) 235. 2 Kent Com. (llth ed.) 621 (472). 8 Earle v. De Witt, 6 Allen ( M'ass. ) , 533. The conveyance in this case con- tained no covenant embracing the defect of title of which the plaintiff com- plained. The decision is, therefore, with stronger reason, an authority for the proposition stated above. "Ohling v. Luitjens, 32 111. 23 1 ; Beebe v. Swartwout, 3 Gil. (111.) 16&. 10 Baker v. Savidge, 53 Neb. 146; 73 N. W. Rep. 543. "D'Utricht v. Melchor, 1 Dall. (Pa.) 428. In this case it was objected that the covenantee's remedy was 7. The general rule is that the vendee of land who has not been evicted, must rely upon his covenants in the deed, but a fraudulent sale is always an exception to that rule. Gilpin v. Smith, II S:n. M. (Miss.) 100. M l Sugd. Vend. (8th Am. ed.) 375 (246). "1 Sugd. Vend. (8th Am. ed.) 375 (246). "Cnllum v. Branch Bank, 4 Ala. 35; 37 Am. Dec. 726; SUrk v. Hill, 6 Ala. 785; Pat ton v. England, 15 Ala. 71. "Allen v. Hopson, 1 Freem. Ch. I Mi-.) 276. DETENTION OK RESTITUTION OF PURCHASE-MONEY. 745 A statement made in good faith, false but not fraudulent, will not entitle the purchaser to recover back the purchase money in a case to which the covenants do not extend. The scienter or fraud is the gist of the action where there are no covenants. 28 What con- duct or representations on the part of the vendor amount to fraud will be found elsewhere considered in this work. 29 The purchaser has a remedy not only against the grantor in a case of fraud, but against third persons having an interest in the transaction who aid in practicing the deceit. Thus, a note broker was compelled to refund to a mortgagee money loaned on the security of the mort- gage, he having falsely represented that there were no prior in- cumb ranees on the property. 30 276. WAIVER IN CASES OF FRAUD. Of course, if the pur- chaser accept a conveyance with knowledge of the fraud, he waives all right to rescind the contract because of the fraud, and must look to his covenants for redress. 31 And when the fraud comes to his knowledge after the acceptance of a conveyance, he must promptly exercise his right to rescind the contract. 32 It has been held in 28 2 Sugd. Vend 1 . (8th Am. ed.) 553. Early v. Garrett, 4 Man. & Ry. 687. 29 Ante, 101. 30 Turnbull v. G-adsden, 2 Strobh. Eq. (S. C.) 14. 31 2 Warvelle Vend. 919. Ante, 270. 32 Provident L. & Tr. Co. v. Mclntosh, (Kan?) 75 Pac. Rep. 498,; Vaughn v. Smith, 34 Oreg. 54; 55 Pac. Rep. 99; Duetzmann v. Kountze, 147 Iowa, 158; 125 N. W. 1007. The case Lockrodge v. Foster, 4 Scam. (111.) 570, affords a good illustration of this rule. There the covenantee had taken possession of the premises with knowledge of the fraud, and the court, in denying him relief, said : " Under the circumstances, if the complainant had resorted to equity in proper time, and it had appeared that the vendor or his legal representatives were not in a situation to perfect the title, a rescission of the contract might have been obtained. But on discovering the fraud, he was at liberty to consider the contract at an end, and take the necessary steps to procure its rescission or to confirm it, end- rely en his covenants of warranty to make good the failure of title. This was a privi- lege on his part. The election rested solely with him, but he was bound 1 to make it within a reasonable time. The whole case, in our opinion, shows most conclusively that he elected to confirm the contract. From his own showing, he discovered the fraud in the fall of 1837, at the time he took possession of the land, before he made any improvements on it, and while a great portion of the purchase money was unpaid. After the discovery he proceeded to erect a dwelling house and make valuable improvements on the 94 746 MARKETABLE TITLE TO KEAL ESTATE. several cases and there are dicta in others, that if the purchaser accept a conveyance of the premises, he cannot afterwards maintain an action to recover damages for deceit of the vendor in respect to the title; all that passed between the parties in the course of the negotiation being regarded as merged in the deed, and that the purchaser's remedy is upon the covenants, if any. 83 The better opinion, however, seems to be that only matters as to which the purchaser was informed can be regarded as merged in the deed, and that if he were ignorant of the fraud which would have avoided the contract, he loses none of his rights by accepting the deed." premises. More than four years afterwards, when sued for the balance of the purchase money, lie makes no complaint and interposes no defense, but per- mits judgment to go against him, and not until a partial payment of the judgment does he manifest any disposition towards a rescission of the con- tract. * * * After all these acts of continuation and acquiescence, and five years subsequent to the discovery of the fraud, he comes into a court of equity, and asks that the contract may be annulled. We have no hesitation in saying that he is effectually concluded by his own positive acts from at- taining this object." "Peabody v. Phelps, 9 Cal. 214; Leonard v. Pitney, 5 Wend. (X. Y.) 30. See, also, Peay v. Wright, 22 Ark. 198. The old English cases of Roswell v. Vaughn, 1 Cro. James, 196, and Lyaney v. Selby, 2 Ld. Raym. 1119, have also been cited in support of this view. In the first case, however, there does not appear to hare been a conveyance. Relief was denied the purchaser prin- cipally upon the ground that the vendor was not in possession, and that he should have looked more carefully to the title. In Whitney v. Allaire, 1 Comst. (X. Y. ) 314, the right of a covenantee to maintain an action to re- cover damages for deceit respecting the title was questioned by BKONSON, J., dissenting, who said, " In the usual course of business men insert covenants in their conveyances of real estate where it is intended that the vendor ahal! answer for the goodness of the title; and it is easy to see that bad conse- quences may follow if the vendee shall be allowed to lay aside his deed, and have an action founded upon conversations about the title pending the bar- gain. * * I do not intend to express a definite opinion on the point, and have only said enough to show that it is a grave question, which, as it is not necessarily before UH, should not be regarded as settled by our decision. 1 ' It may IT doubted whether this query would be made in a case in which the covenantor had studiously concealed an incumbrance or defect in the title, as in Prout r. Roberts, 32 Ala. 427. "Ante, | 209. 2 Warvelle Vend. 957. That author attributes the cases holding the opposite view, to the fact that the grantee has his remedy over for breach of the covenants for title. Those cases, however, set-in rather to proceed upon the idea that the fraud is merged in the conveyance, whether with or without covenants for title. As to cases in which there ha* been DETENTION OK RESTITUTION OF PURCHASE-MONEY. 747 Indeed, it may be doubted whether in such a case the purchaser would be held to have waived his right to recover damages for the fraud. The acceptance of a conveyance is an election to affirm the contract, but it has been held that the purchaser does not waive his right to damages by affirming the contract after discovering the fraud. 30 True, in such a case, the purchaser could not rescind fraud as to the title and also a breach of the covenants. Mr. Warvelle per- tinently observes, " The liability of the offending party is totally distinct in either case. In the one it arises ex contractu, in the other ex delicto; and the rule upon which damages are awarded is different in each instance. Xor is there any inconsistency in the prosecution of the two remedies, as they both proceed upon the theory of an affirmance of the contract, and although differing in form, one does not allege what the other denies. A recovery in one, therefore, will not preclude a prosecution of, or recovery in, the other, although, of course, there can be but one satisfaction for the damages sus- tained." Citing Bowen v. Mandeville, 95 N. Y. 237; Allaire v. Whitney, 1 Hill (N. Y.), 484; Kimball v. Saguin, (Iowa) 53 N. W. Rep. 116, criticising Peabody v. Phelps, supra. Lee v. Dean. 3 Whart. (Pa.) 315; Orendorff v. Tallman, (Ala.) 7 So. Rep. 821; Gwinther v. Gerding, 3 Head (Tenn.), 197; Bostwick v. Lewis, 1 Day (Conn.), 250, 2 Am. Dec. 73; Whitney v. Allaire, 1 Comst. (N. Y.) 314, semble, BHONSON, J., dissenting; Monell v. Golden, 13 Johns. (N. Y.) 396, 7 Am. Dec. 390; Culver v. Avery, 7 Wend. (N. Y.) 380, 22 Am. Dec. 586, where the false representation was made by a public officer. The court said : " Whatever is said or done in good faith in a treaty for a sale and (purchase is merged in the purchase itself when consummated (by conveyance), and you cannot overhaul it whether the representations were true or false; but if they were known to J>e false when made, and have pro- duced damage to the opposite party, the subsequent consummation of the agreement cannot shield the defendant." Wardell v. Fosdick, 13 Johns. (N. Y.) 325, 7 Am. Dec. 383, where the vendor sold land which had no existence. That fact, however, was considered immaterial in Ward v. Wiman. 17 Wend. (N. Y.) 192, 196, where it was said that in a case of fraud the purchaser might treat the deed as a nullity. In Wilson v. Breyfogle, 63 Fed. Rep. 329 ( Cir. Ct. App. ) , it was held that a grantee with warranty who had been defrauded by fraudulent representations as to the title, might sue in as- sumpsit to recover back the purchase monsy, but must first reconvey, or offer to reconvey, the premises. See, also, Bowden v. Achor (Ga.), 22 S. E. Rep. 254. * 5 Allaire v. Whitney, 1 Hill (N. Y.), 484. Allaire had leased certain premises of Whitney, the term to begin at a future day. Before that day he discovered that the lessor had fraudulently represented that he owned a part of the premises, nevertheless he took possession and obtained a lease from the real owner of the part to which there was no title. The court, deciding that Allaire had not waived his right to damages, observed, " It is not neces- sary to deny that where a vendee or a lessee takes or holds possession after he has discovered the fraud of his vendor or lessor, he shall not be allowed 748 MAKKETABLE TITLE TO REAL ESTATE. the contract, but obviously, the right to rescind, and the right to recover damages for a fraud stand upon different grounds, and the waiver of one is not necessarily a waiver of the other. If the con- veyance contained covenants, the practical difference between an action on the covenants, and an action for deceit is, that in the former action he could recover the purchase money only and nothing for the loss of his bargain, and no more than nominal damages unless he had been evicted, while in the latter action his recovery would be measured by the actual damages sustained. to rescind the contract, in other words, to say, as he may always do in the first instance, that the whole i void. Certainly the jury might well have been instructed in the present case, that Allaire had made the lease good by election; that he had waived the right to consider it a nullity. That, how- ever, is a very different matter from a waiver of the cause of action or recoupment. When a man is drawn into a contract of sale or demise by fraud, a right of action attaches immediately, as much so as if trespass had been committed against him; and though he may affirm the transfer of interest and take the property, yet waiver is no more predicable of the cause of action, than where a man receives a delivery of goods that have been tortiously taken from him. The vendor or lessor was a wrongdoer when he committed the fraud, and no act of the injured party short of a release or satisfaction will bar the remedy, though it may mitigate the amount of damages." See, also, 1 Sugd. Vend. (14th ed.) 251, where it is said: " Although in equity a party may be entitled to get rid of a contract founded on fraudulent representations, still cases might occur where a purchaser might recover damages at law for a false representation, and yet be pre- vented by his own conduct from rescinding the contract in equity, and the relief in equity run only be to rescind the contract. Damages or compensa- tion must be sought at law." OF RECISSION BY PROCEEDINGS IN EQUITY. WHERE THE CONTRACT is EXECUTORY. CHAPTEE XXX. OF THE SUIT FOR RESCISSION PROPER. GENERAL PRINCIPLES. 277. DEFENSES TO SUITS FOR SPECIFIC PERFORMANCE. 278. PLACING THE VENDOR IN STATU QUO. 279. INTEREST, RENTS AND PROFITS. IMPROVEMENTS. 280. PLEADING. 291. PARTIES. 282. 277. GENERAL PRINCIPLES. On- failure of the title the purchaser, instead of taking such steps at law as amount to a recis- sion of the contract, such as bringing an action to recover back the- purchase money, or resisting proceedings by the vendor to collect the same, may, while the contract is executory, resort to a court of equity in the first instance and ask that the contract be formally rescinded. In such case the court, having before it all parties in interest, may, if it appear that the complainant is entitled to relief, enter a decree rescinding the contract and adjusting the rights of the parties. We have already seen under what circumstances he may have an injunction against the collection of the purchase money where the contract is executory. 1 And the purchaser may, in any proceeding by the vendor to enforce specific performance of the contract, show that the title has failed or is not such as the law will require him to accept. The fact that the vendor honestly believed his title to be good is no ground for refusing rescission. 2 The jurisdiction of equity for the rescission of executed contracts is limited, as will be seen, chiefly to cases where the contract was procured through fraud or mistake; but where the contract is executory, a complete want of title in the vendor, irrespective of the question of his good faith, seems to be always a ground in 1 Ante, 250. "Boyce v. Grundy, 3 Pet. (U. S.) 210. [749] 750 MARKETABLE TITLE TO REAL ESTATE. equity for rescinding the contract, 8 unless the purchaser has waived or lost his right to require a clear title; or unless he is bound by the terms of his contract to take such title as the vendor can make; or unless he be no longer able to place the vendor in statu quo. It has also been held that equity will not rescind the contract at the suit of the purchaser, if the defect of which he com- plains might with reasonable diligence have been discovered by him before the contract was made. Thus it has been held that a purchaser who fails to make reasonable inquiries as to possible dower rights in the premises, must seek his remedy against the vendor at law and not in equity, if disturbed by the widow. 4 This decision seems not to have been generally followed in America, though there are many cases which decide that the purchaser can- not fix fraud upon the vendor in failing to disclose defects in the title which might have been discovered by the exercise of ordinary diligence.* It has been held that the right of the purchaser to rescind an executory contract on failure of the title is not dependent on his right to maintain an action for breach of the contract, and that he may rescind where he cannot maintain that action. Thus, where the purchaser, knowing that the vendor could not convey a clear title, made a sham offer of performance and tender of the balance of the purchase money, it was hold that he could not recover dam- ages for a breach of the contract, but that he was entitled to rescind the contract and recover back what he had already paid.' In an Musselwhite v. Oleson, 60 Fla. 342, 53 So. 944; Smith v. Robertson, 23 Ala. 317, where it was said that though there may be no actual fraud in making a contract, a total inability in one party to fulfill it discharges tin- other, and a court of equity will annul a contract which the defendant has failed to perform or cannot perform. Citing Bullock v. IVcmi-s. 1 A. K. Marsh. (Ky.) 434; Skilleen v. May, 4 Cranch (U. S.), 137. But see Porks v. Brooks, 16 Ala. 529, where rescission was refused a purchaser who h:id taken a bond for titles and could not show that the obligor was insolvent. AH a matter of fact suits in equity by the purchaser for rescission where the contract is executory are comparatively infrequent. Usually the only relief he <-l;iim- is the return of the purchase money, and- this may be obtained. as a general rule, more quickly and with less expense in the action for money had and received to the purchaser's use. See ante. ch. 24. 4 Greenleaf v. Queen, 1 Pet. (U. S.) 138. Ante, ch. 11. Contra, Crawford v. KeeWer, 6 Lea (Tenn.), 547. Lewis v. White, 16 Ohio St. 441. OF THE SUIT FOR RESCISSION PROPER. 751 early American case it seems to have been held that want of title in the vendor was no ground for rescinding an executory contract for the sale of lands, the purchaser having an adequate remedy at law to recover back the purchase money or to recover damages for breach of the contract. 7 This case does not appear to have been followed in America, and its authority may well be doubted. Courts of law have, under the common-law system of procedure, no power to adjirst equities between the parties, e. g., to decree a restitution of the premises, to settle claims for interest on the purchase money paid and for improvements on the one side, and for rents and profits on the other. On these grounds, irrespective of any question of fraud or mistake, the jurisdiction of a court of equity in such cases seems clear. Fraud of the vendor and mistake of the parties in respect to the title are, of course, grounds for rescinding an executory contract for the sale of lands. In such cases the remedy in equity is con- current with that at law. 8 What constitutes fraud in the vendor has been elsewhere considered. 9 The fact that the agreement has been reduced to writing will not prevent the purchaser from show- ing that the vendor, at the time the contract was closed, made fraudulent representations as to the state of the title. The rule in this respect is the same, whether the contract be executory or has been executed by a conveyance with or without covenants for title. 10 If the objection to the title be that the vendor has no power to sell and convey the premises, it has been held that a suit for a rescission of the contract cannot be maintained by the purchaser. 11 'Hepburn v. Dimlop, 1 Wh. (U. S.) ; Id. 3 Wh. (U. S.) 231. The failure of the consideration is always a ground for the rescission of a contract for the sale of lands. Hadlock v. Williams, 10 Vt, 570; Greenleaf v. Cook, 2 Wh. (U. S.) 13, 16; Hart v. Handlin, 43 Mo. 171. 8 Innes v. Willis, 16 Jones & S. (N. Y.) 188; Goodman v. Rust, 4 T. B. Mon. (Ky.) 421; Smith v. Robertson, 23 Ala. 312; Liddell v. Sims, 9 Sm. & M. (Miss.) 596; Davis v. Heard, 44 Miss. 50; Holland v. Anderson, 38 Mo. 55. "Ante, ch. 11. 10 Sugd. Vend, (llth Eng. ed.) 53, 586; Boyce v. Grundy, 3 Pet. (U. S.) 210. 11 Bruner v. Meigs, 64 N. Y. 506, per ALLEN, J. The authority of this case may be doubted. The reason given for the decision would apply in most cases 752 MABKETABLE TITLE TO HEAL ESTATE. The reason assigned for this decision was that the purchaser had a perfect defense at law and in equity to any proceeding by the vendor to enforce the agreement, and that an action by him would be necessary. We have already seen under what circumstances the purchaser will be deemed to have waived his right to rescind a con- tract or to resist a suit for specific performance on the ground that the title is defective. 12 Where the purchaser in a suit by him for rescission, offers to complete the contract if the court shall be of opinion that the title is marketable, and the court so decides, he is estopped from urging further any right to rescind. 13 278. DEFENSES -TO SUIT FOB SPECIFIC PERFORMANCE. The purchaser, when the vendor seeks to compel specific per- formance of the contract, may of course show that the title is bad," or doubtful, and such as he cannot be required' to accept. 15 It is an elementary rule that the vendor, seeking specific performance of the contract, must show that he is ready, able, and willing to perform all the obligations iliat rest on him in respect to the exhibition and conveyance of a good title to the premises. 18 As a general rule wherever he has a right to rescind the contract on the ground that the title has failed, he may avail himself of the same facts as a defense to a suit by the vendor for specific performance. The position of the purchaser in such a case is perhaps stronger than if he were plaintiff, for it has been often held that under some circumstances a court of equity may refuse to rescind a con- in which the purchaser goes into equity for a rescission of an executory con- tract. Should the purchaser l>c compelled to await the motions of the vendor? If the JMIK li.i-i- money was paid to the latter he would probably concern hiin.-cli" no further about the agreement. "Ante, "Waiver of Objections," 80. "Hyde v. Heller, 10 Wash. 580, 39 Pac. Rep. 240. "Ranck v. Wick wire, 255 Mo. 42, 104 S. W. 400. Even though the contract states that the purchaser is satisfied with the title, he will not be required to take the title if it is, in fact, bad. Clark v. Rosario Min. Co., 170 Fed. 180, 99 C. C. A. 534. "What matters are sufficient to render a title doubtful or unmarketable will be hereafter considered. Post, ch. 31. M Cable v. Hoffman, 273 111. 272, 112 N E. 670; Smith v. Johnson, 35 8. D. 603, 153 N. W. 370, a case in which the vendor lost his right to a desert land filing by failure to do the required amount of work on the lurid. OF THE SUIT FOE RESCISSIOX PROPER. 753 tract for the sale of lands which, it would not specifically enforce, 17 leaving the parties to their remedy at law. 18 If the vendor, in consequence of disputes about the title, turns the purchaser out of possession, he cannot afterwards insist upon a specific performance of the contract. 19 Nor will he be entitled to this relief if, subse- quent to the contract, he places a mortgage on the premises. 20 The purchaser cannot of course set up want of title in the vendor as a defense to a suit by the latter for specific performance, where by the terms of the contract, the purchaser was to take. merely such title or interest as the vendor had. 21 But specific performance will not be decreed at the instance of the vendor, if he cannot con- vey a clear title, though no provision was made in the contract for a covenant of warranty to be inserted in the deed, unless the pur- chaser expressly assumed the risk as to title. 22 If the purchaser defends a suit for specific performance, the mere allegation that the vendor's title is defective, will not suffice. He must set forth and prove the specific defects of which he complains. 23 But, it is ap- prehended, that the vendor must show in the first instance a record title that is prima facie clear and unobjectionable, for by insisting upon specific performance he avers that his title is such as the purchaser can be required to take. In the nature of things, how- ever, he cannot show that there can be no possible objection to his title. Reason and convenience both require that having shown a "2 Kent Com. (llth ed.) 487; Mortlock v. Buller, 10 Ves. 292; Jackson v. Ashton, 11 Pet. (U. S.) 248; Dunlap v. Hepburn, 1 Wheat. (U. S.) 197; Morgan v. Morgan, 2 Wheat, (U. S.) 290; Beck v. Simmons, 7 Ala. 71; Park v. Brooks, 16 Ala. 529; Seymour v. Delancy, 3 Cow. (N. Y.) 530, 15 Am. Dec. 270; Osgood v. Franklin, 2 Johns. Ch. (X. Y.) 23, 7 Am. Dec. 513; Cans v. Renshaw, 2 Pa. St. 34, 44 Am. Dec. 152; Louisville, etc., R. Co. v. Stone Co., (Ind. Sup.) 39 X. E. Rep. 703. 18 Jackson v Ashton, 11 Pet. (U. S.) 229. 19 Knatchbull v. Grueber, 3 Mer. 124. 20 Ha rule thus declared would apply in a caw in which the change of position by the vendor did not operate, and could not have operated to the injury of the purchaser. OF THE SUIT FOE RESCISSION PROPER. 755 quiet the title, admits that his title is not such as the purchaser can be required to take. 29 279. PLACING THE PARTIES IN STATU QUO. It is a cardi- nal rule that in every proceeding in which an abrogation or rescis- sion of a contract for the sale of lands is effected, whether it be the act of the parties or the act of the law, whether it be the result of an action to recover back the purchase money paid, or of an injunction to restrain the collection of the purchase money, or of a direct suit in equity for rescission, either party must be placed in the same position in which he was before he entered into the con- tract. Unless this can be substantially clone, there can be no rescis- sion, and the parties will be left to their remedies at law upon the contract. Xo rule of law is better settled than that a purchaser of a chattel which proves to be unsound, cannot keep .the chattel and refuse to pay the purchase money, and that he cannot detain the purchase money, if he has consumed or destroyed the chattel so that he cannot restore it to the vendor. He may, of course, keep the chattel and recover damages for the breach of the express or implied warranty of its soundness, but that is an election to affirm and not to rescind the contract. There is no difference in the ap- plication of these principles to executory contracts for the sale of lands. Hence, it follows that a purchaser seeking a rescission of the contract in equity on the ground that the title has failed, must restore the premises to the vendor before he will be absolved from his obligation to pay the purchase money. 30 29 Munyon v. Hartman, 262 Mo. 449, 171 S. W. 61. J0 1 Sugd. Vend, 347. Ante, 256. Wickham v. Evered, 4 Madd. 53; Tindal v. Cobham, 2 Myl. & K. 385; Fowler v. Ward, 6 Jur. 547; Nicholson v. Wordsworth, 2 Swan. 365; Southcomb v. Bishop, 6 Hare, 213; Gordan v. Mahoney, 13 Ir. Eq. 383; Garner v. Leverett, 32 Ala. 410; Duncan v. Jeter, 5 Ala. 604, 39 Am. Dec. 342; Fitzpatrick v. Featherstone, 3 Ala. 40; Sea- burn v. Sutherland, 17 Ark. 603; Wheat v. Dotson, 12 Ark. 698; Lane v. Latimer, 41 Ga. 171; Underwood v. West, 52 111. 597; Smith v. Brittenham, 98 111. 188; Deal v. Dodge, 26 111. 459; Gehr v. Hogerman, 26 111. 438; Vining v. Leeman, 45 111. 246; Marvin v. Applegate, 18 Ind. 425; Osborn v. Dodd, 8 Blackf. (Ind.) 467; Cain v. Guthrie, 8 Blackf. (Ind.) 409; Brumfield v. Palmer, 7 Blackf. (Ind.) 227; White v. Hardin, 5 Dana (Ky.), 141; Peebles v. Stephens, 3 Bibb (Ky.), 324, 6 Am. Dec. 660; Wickliff v. Lee, 4 Dana (Ky. ), 30; Matta v. Henderson, 14 La. Ann. 473; Clark v. Briggs, 5 La. Ann. 624; McDonald v. Vaughan, 14 La. Ann. 716; Shipp v. Wheles, 33 Misa. 646; Williamson v. Ramey, 1 Freem. Ch. (Miss.) 112; Hill v. Samuel, 31 756 MARKETABLE TITLE TO REAL ESTATE. The purchaser will not be permitted to rescind the contract if he has made material alterations in the property, such as to change its nature and character, if they are of a kind which do not admit of a restoration of the property to its former condition, or if he decline or be unable to restore it to thai condition. 31 Xor where he has disabled himself from restoring the possession to the vendor by conveying the premises to a stranger. 33 Xor where a portion of the premises have been sold under execution against him. 33 Xor where he has materially impaired the value of the land by cutting down the timber. 34 But in cases in which the purchaser acted in good faith and the injury to the premises is capable of ascertain- ment and deduction from the purchase money he is seeking to recover back, he may have a rescission of the contract though the Miss. 307: Smith v. Busby, 15 Mo. 387, 57 Am. Deo. 207; Young v. Stevens, 4S X. H. 133, 2 Am. Rep. 202; Sandford v. Travers. 7 Bosw. (X. Y.) 498; More v. Stnedhurgh, 8 Paige Ch. (X. Y.I 600; Tompkins v. Hyatt. 28 X. Y. 347: Goelth v. White, 35 Barb. (X. Y.) 76: Schroeppel v. Hopper, 40 Barb. (X. Y.) 425: Ynn F.pps v. Harrison, 5 Hill (X. Y.), 63. 40 Am. Dee. 314; Tallmad-re v. Wallis, 25 Wend. (X. Y.) 107; Masson v. Bovet. 1 Den. (X. Y.) 73, 43 Am. Dee. 6.11; Xicoll v. Carr, 35 Pa. St. 381; Congregation v. Miles, 4 Watts (Pa.), 14(5: Clarke v. Locke, 11 Humph. (Tenn.) 300; Officer v. Murphy, 8 Yerg. (Tenn.) 502; Lynch v. Baxter, 4 Tex. 431, 51 Am. Dec. 735: Hyslip v. French. 52 Wis. 513; Grant v. Law, 29 Wis. 99; Hendricks v. Godrich, 15 Wis. G79. In Perry v. Boyd, 126 Ala. 162, 28 So. Rep. 711, it was held that the grantee may maintain his bilK for rescission without having restored or having offered to restore, the premises to the grantor. It seems, however, that the property to which the title failed in that case consisted principally <>f itn easc-im-nt the right to excavate a tunnel through lands of the grantor. The bill averred a willingness to reconvey. "Dart V. i P. (5th ed.) 440; Donovan v. Frisker, Jac. 165. In this case the purchaser was required to reinstate a private dwelling which he had con- verted into a shop. Where the purchaser retained possession for a number of years, received the rents, changed the condition of the estate, and mail. lading improvements, it was held that he could not put the vendor in statn quo, and. therefore, could not rescind the contract. Patten v. Stewart, 24 Ind. 332. McKcen v. Benupland, "~> Pa. St. 4S8; Rogers v. Olshoffsky, 110 Pa. St. 147. 2 Atl. Rep. 44: Colyer v. Thompson, 2 T. B. Mon. (Ky.) 16. Where the render by agreement with the vendee, conveys portions of the premises in lot* to third persons, as they are Mild (iff by the vendee, he (the vendor) cannot in an action for rescission, the title being bad, object that the entire premises cannot be restored to him. Wilcox v. Lattin, 93 Cal. 588, 29 Pac. Rep. 226. "Clark v. Brings, 5 La. Ann. 24. Gehr v. Hagerman, 2ti III. 459. OF THE SUIT FOE RESCISSION PEOPEE. 757 property cannot be restored in specie. 35 If the purchaser be un- able to put the vendor in statu quo, he has his remedy over' by action on the case if the vendor was guilty of fraud. 36 It has frequently been held that a contract for the sale of lands cannot be partially rescinded, that it must be rescinded in toio, if at all, 37 by which appears to be meant that upon rescission neither party will be permitted to retain anything which he has received- by virtue of the contract. If the purchaser refuse to complete the contract on the ground that the title to a portion of the premises has failed, and insist upon retaining possession of the other part, the vendor may maintain a bill to compel him to elect whether he will accept the title, or abandon the contract and restore the possession. 38 If on rescission the purchaser refuse to restore the premises the vendor may recover them in ejectment. 39 In such an action the purchaser cannot set up paramount title in the third person as a defense. 40 The purchaser is estopped to deny the title of his vendor. 41 Even where he buys in an adverse claim to the premises, he must surrender possession before he can claim rescission against his vendor. He must take his chances of recovering the land on 33 Wright v. Dickinson, 67 Mich. 580; Calhoun v. Belden, 3 Bush (Ky.), 674, where the residence on the purchased premises had been destroyed by fire. In Alabama the rule that the purchaser must restore the premises be- fore he can have a rescission of the contract, has been held not to apply where retention of the property is necessary for the indemnity or reimbursement of the purchaser, as where the vendor is insolvent and cannot return the pur- chase money. Garner v. Leveritt, 32i Ala. 413; Young v. Harris, 2 Ala. 108; Elliott v. Boaz, & Ala. 772; Greenlee v. Gaines, 13 Ala. 198, 47 Am. Dec 49; Parks v. Brooks, 16 Ala. 529; Read v. Walker, 18 Ala. 323; Foster v. Gres- sett, 29 Ala. 393; Gallagher v. Witherington, 29 Ala. 420; Duncan v. Jeter, 5 Ala. 604, 39 Am. Dec. 342. 39 Hogan v. Weyer, 5 Hill (N. Y.), 3S9. 37 2 Kent Com. 408; 2 Warvelle Vend. 878, Cases cited supra, this sec- tion. Benjamin v. Hobbs, 31 Ark. 151; Lovingston v. Short, 77 111. 587; Porter v. Titcomb, 22 Me. 300; Hogan v. Weyer, 5 Hill (N". Y.), 389. ' 3S Davison v. Perrine, 22 N. J. Eq. 87. " 1 Sugd. Vend. (8th Am. ed.) 276 (179). Nicoll v. Carr, 31 Pa, St. 381; Fowler v. Cravens, 3 J. J. M. (Ky.) 3; 20 Am. Dec. 153, 40 Fowler v. Cravens, 3 J. J. M. (Ky.) 3, 20 Am. Dec. 153. "Ante, 259a; Wolter v. Dixon, 29 Idaho, 26, 157 Pac. 250. 738 MARKETABLE TITLE TO KEAL ESTATE. the title thus acquired. If, however, he purchases in ignorance of the fact that the paramount title already exists in himself ho cannot be required to surrender the possession before asserting his better title. 43 The rule which requires the restoration of the parties to their former condition is satisfied by substantial compliance therewith, since it is obviously impossible for the parties to be placed in the precise condition in which they were before the contract was entered into. Accordingly, it is generally considered that the rule is satisfied by restoring the premises unimpaired, together with the n-iits and profits, to the vendor, and the purchase money, with in- terest, costs and expenses for improvement, to the purchaser. 44 In some cases it has been held that the restoration of the premises to the vendor on failure of the title is a condition precedent to the right to maintain a suit for rescission. 45 It may be doubted whether such a rule would apply where the court has power to enter a judgment or decree conditioned to be inoperative unless the premises be restored to the vendor. 48 The cases in which the purchaser may have a rescission of the contract without restoring the premises to the vendor have been "Grundy v. Jackson, 1 Lilt. (Ky.) 11; Officer v. Murphy, 8 Yerg. (Tenn.) 502. Ante, ft 259a. *Southeomb v. Bishop, Hare, 213. "Masson v. Bovet. 1 Den. (X. Y.) 74, 43 Am. Dec. 651; Bank v. Ettinge, 4O X. Y. 301. In this case it was held that the vendor could not require the purchaser to indemnify him for expenditures which he had made upon the expectation of receiving money under the contract. As to the contention that each party must be restored to the precise condition in which he was before the contract was made, the court said: "The application of this principle to the present case would substantially destroy the rule that money paid tinder a mistake of fact may IH recovered back. If the facts could be so arranged that there should be no loss to either party there would be nothing to contend bout, and o no auch actions would be brought. * * * It is an ordinary result of the transaction that the party receiving has incurred liabilities or paid money which ho would not have done except for the receipt of the money." Ante, | 2/5S. Eames v. Der Germania Turn Verein, 8 111. App. 063, citing Hunt v. Silk, 5 East, 449, and Norton v. Young, 3 Greenl. (Me.) 30. **In Pennsylvania a condition requiring the purchaser to reconvey the premises to the vendor may be inserted in the verdict. Babcock v. Case, 61 Pa. St. 427. OF THE SUIT FOE RESCISSION PROPER. 759 elsewhere considered in this work. 47 The court, in decreeing a rescission of the contract on the ground of failure of title, will direct outstanding purchase-money notes to be delivered up and canceled, and will also direct that any bond for title or other obligation to convey executed by the vendor, be surrendered by the purchaser and canceled. 48 280. INTEREST. BENTS AND PROFITS. IMPROVEMENTS. On rescission of an executory contract for the sale of lands for want of title in the vendor, whether by suit in equity or action at law to recover back the purchase money, the purchaser, if he has never been in possession, will be entitled to interest on the pur- chase money he has paid. 49 If he has been in possession the general rule is that the vendor may set off the rents and profits against interest on the purchase money, 50 taking into consideration, of course, any material inequality between the two items. 51 Even 47 Ante, 261. "McKay v. Carrington, 1 McLean (U. S.), 50; Colpe v. Lindblom, 57 Wash. 106, 106 Pac. 634. In Williams v. Carter, 3 Dana (Ky.), 198, the purchase-money notes could not be delivered up because they had been destroyed by the vendor, and a decree was entered rescinding the contract. McGee v. Carrico, 6 Litt. (Ky.) 393. 48 2i Warvelle Vend. 885. 50 2, Warvelle Vend. 885; Watts v. Waddle, 6 Pet. (U. S.) 389; Mclndoe v. Morman, 26 Wis. 588, 7 Am. Rep. 96; White v. Tucker, 52 Miss. 145; Axtel v. Chase, 77 Ind. 74; Baston v. Clifford, 68 111. 67; Bitzer v. Orban, 88 111. 130; McManus v. Cook, 59 Ga. 485; Todd v. McLaughlin, 125 Mich. 268, 84 N. W. Rep. 146; Griffith v. Depevv, 3 A. K. Marsh. (Ky.) 177, 13 Am. Dec. 141, where held that interest should run only from date of suit for rescission, and that rents and profits should be charged against the purchaser from the same period. Morton v. Ridgway, 3 J. J. Marsh. (Ky.) 258; Wick- liff v. Clay, 1 Dana (Ky.), 535; Taylor v. Porter, 1 Dana (Ky.), 421, 25 Am. Dec. 155; Williams v. Rogers, 2 Dana (Ky.), 374; Buchanan v. Lorman, 3 Gill (Md.), 51; Outlaw v. Morris, 7 Humph. (Tenn.) 262; Patrick v. Roach, 21 Tex. 261, 27 Tex. 579; Littlefield v. Tinsley, 26 Tex. 353, 359; Ten- nell v. Dewitt, 20 Tex. 256; Fitzhugh v. Land Company, 81 Tex. 306, 16 S. W. Rep. 1078. In Tennell v. Roberts, 2 J. J. Marsh. (Ky.) 577, a court of equity on rescinding a contract for the sale of lands refused to decree in fayor of the vendor for rents and profits on the ground that he had been guilty of fraud respecting the title, and further, that the real owner was proceeding in ejectment against the purchaser. As to the right of the vendor to set off the rents and profits against the purchaser's claim for damages, see ante, 95. "2 Warv. Vend. 885. Doggett v. Emerson, 1 Woodb. & M. (U. S.) 195, 760 MARKETABLE TITLE TO REAL ESTATE. where the vendor fraudulently concealed a defect in his title he has been allowed the value of the rents and profits enjoyed by the purchaser. 53 But it has been held that he will not be entitled to an account of the rents and profits where by his fraudulent eon- duct the purchaser has been induced to remain in possession a long; time in expectation that a good title will be made. 53 Xor where the purchaser, not yet having surrendered possession of the prem- ises, will probably be compelled to account to the true owner for the mesne profits, or is entitled to retain them as a security for the return of the purchase money paid by him. 54 In England it is said to be tisual and proper to specify in every case the day on which the purchase is to be completed, when the purchaser is to have possession, and when he is to receive the rents and profits and pay interest on the purchase money. 55 The purchaser cannot, however, in equity avail himself of a breach of these conditions unless time be of the essence of the contract, 66 It is not necessary that a purchaser, seeking a decree rescind- 204. Shields v. Bogliolo, 7 Mo. 134, where it was said that if the land were wild and wholly unproductive the rule that the use of the money and the use of th land are equivalent would not apply. A head note to the ease of Williams v. Wilson. 4 Dana (Ky.), 507. fairly digests the opinion of the roiirt as follow*: "There never has been any universal rule for adjusting and etting ofT rents against interest upon the reseission of a sale of land. As eases vary, the equity of allowing rents and interest on the purchase monev nrutft vary the object, being in every ease to plaee the parties as nearly as possible m slatti I/MO." In the absence of evidenee to the contrary, the use of the premises and interest on the purchase money will be held to balance each other. Talbot v. Srbree, 1 Dana (Ky.), 56. Bryant v. Booth, 30 Ala, 311, 68 Am. Dec. 117, which, however, was a ca*e in which the contract had l>cen executed. Richardson v. McKinson. Litt. Sel. las. (Ky.) 320, 12 Am. Dee. 308; Peebles v. Stephens, 3 Bibb. (Ky.). 324. 6 Am. Dec. (MM). The same rule has been applied where the contract wa* rescinded on the ground that the vendor had fraudulently represented the quality of the land. Thompson v. Lee, 31 Ala. 202. In Walker v. Ogden, 1 Dana (Ky.), 247, the purchaser had bouglit in a paramount title to the premise*, and a bill by the vendors for an account of the rents and profit 1 * wa d Utilised on the ground that the question of title being undetermined the remedy of the plaint iff was at law by action of ejectment. "Seanmre v. Marian. 3 Dnna (Ky.), 410. "McLaren v. Irvin. (13 Oa. 275. "Dart V. & P. (5th ed.) 127. "Il. 417. OF THE SUIT FOR RESCISSION PROPER. 761 ing the contract when the title has failed, shall have previously tendered the reasonable value of the use and occupation of the premises ; the vendor's demand in that respect can be adjusted in the action. 57 If the contract be rescinded at the suit of the pur- chaser, for want of title in the vendor, and no provision be made for redelivery of the land to the vendor, he, or his heirs, may main- tain a bill against the purchaser for an account of the rents and profits. 58 If the purchaser committed waste while in the occupa- tion of the premises, the damages, thence accruing may be set off against his claim for purchase money, interest and improvements. 59 But he cannot be charged with ordinary deterioration or wear and tear of the premises. 60 We have seen that if the purchaser elect to keep the premises notwithstanding the defective title, and to maintain an action to recover damages for breach of the contract to make a good title, thereby affirming the contract, he will not be accountable to the vendor for the mesne profits. 61 It has been held that the purchaser can only be charged with the profits actually received, and that the question how much the "Dotson v. Bailey, 76 Ind. 434. 58 Officer v. Murphy, 8 Yerg. (Tenn.) 502. In this case the purchaser, after obtaining a decree rescinding the .contract, and' enjoining the collection of the purchase money, remained in possession a number of years. 59 Wickliffe v. Clay, 1 Dana (Ky. ), 585, where the purchaser removed a building from the premises. This building was an improvement made by the vendor, for which he would have been entitled to recover against the real owner. Buchanan v. Lorman, 3 Gill (Md.), 51; Bitzer v. Orban, 88 111. 130. 60 Williams v. Rogers, 2 Dana (Ky.), 374; Buchanan v. Lorman, 3 Gill (Md.), 51. 01 Ante, 95. Greene v. Allen, 32 Ala. 221, where it was said: "We have some decisions which hold that where a purchaser proceeds in equity for a rescission of a contract for a sale of land on account of defective title, he must account for rents and profits if any have accrued to him. See Walton v. Bonham, 24 Ala. 513; Young v. Harris, 2 Ala. 108, 114; Williams v. Mitchell, 30 Ala. 299. But we know of no case in which this doctrine has been applied to a suit at law on a bond for title where the breach alleged is the failure of the vendor's title. If a vendor in such a case could recoup, his vendee might be liable to a double recovery; first, to his vendor, and, secondly, to the true owner of the land. Moreover, such recoupment might operate direct pecuniary benefit to a fraudulent vendor, who would thus speculate on his own tortious acts." 96 762 MARKETABLE TITLE TO REAL ESTATE. premises would have been worth to a man of ordinary industry and diligence is irrelevant and immaterial. 62 But this rule, it is npprehended, will not relieve the purchaser from his liability to pay a fair rent for the premises where he has derived benefits from the possession." And in some cases the right of the vendor to an allowance for rents and profits on rescission of the contract has been denied altogether on the ground that the liability, if any, is for use and occupation; that an action for iise and occupation cannot be supported, unless there was an implied contract to pay rent, and that no such contract on the part of the purchaser can bo implied from his mere occupancy of the premises. 64 The vendor may always provide in the contract that in case of an inability to make title the purchaser shall pay a rent for the property. 65 We have seen that at law a purchaser makes improvements on the premises at his own risk. 66 But in equity, as a general rule, wherever the vendor would receive the benefit of permanent im- provements made by the purchaser he must account for them either by paying the value of them to the purchaser, or by allowing them as a set-off against any demands which he may have against the "Richardson v. McKinson, Litt. Sel. Cao. (Ky.) 320, 12 Am. Dec. SOS, reversing the judgment below. The court said: "An estate may be made mure or loss productive, according to the skill and care with which it miy be managed; but the possessor cannot be said to be enriched in any case beyond the actual profits he has received; and a purchaser, in a case of tliis ort, ought not to be responsible for more. It has accordingly l>een held, where a purchaser has been let into possession and the purchase cannot be completed on account of defects in the title, that he is not bound to pay rents beyond the actual profits he has made. Sugden, 10." " In Murray v. Palmer, 2 Sch. & Lef. 474, 4SO, on rescission of an executory contract on the ground of fraud in the purchaser in procuring a convey- ance from a woman who was ignorant of her rights, the purchaser was held liable for rent which, but for his willful default, he might have received from the premises. Ankeny v. Clark, 148 U. S. 345. No question as to interest seems to have been rained in this case. Bardsley's Appeal, 10 Atl. Rep. 39. In Kirkpatrick v. Downing, 58 Mo. 32. 17 Am. Rep. 078, it was held that the purchaser could not be held liable as a tenant for rent, eo nomine, but that he was chargeable to the extent of the benefit actually derived from the use of the land. An w done in Andrews v. Babcock (Conn.), 26 Atl. Rep. 715 Ante, | 96. OF THE SUIT FOK RESCISSION PliOPEK. 763 purchaser. 67 But even iu equity the purchaser will not be entitled to an allowance for his improvements if they were made when he knew there was a defect in the title. 68 Xor where he participates 67 2 Sugd. (8th Am. ed.) 514 (747); 2 Story Eq. Jur. 1234; King v. Thompson, 9 Pet. (U. S.) 204; Kirkpatrick v. Downing, 58. Mo. 32, 17 Am. Rep. 678; Martin v. Anderson, 7 Ga. 228; Peebles v. Stephens, 3 Bibb (Ky.), 324; 6 Am, Dec. 660; Ewing v. Handley, 4 Litt. (Ky.) 346, 371, 14 Am. Dec. 140; Richardson v. McKinson, Litt. Sel. Cas. (Ky.) 320, 12 Am. Dec. 308; Griffith v. Depew, 3 A. K. Marsh. (Ky.) 177, 13 Am. Dec. 141; Morton v. Ridgway, 3 J. J. Marsh. (Ky.) 258; Strike's Case, 1 Bland Ch. (Md.) 57, 77; Lancoure v. Dupre (Minn.), 55 N". W. Rep. 129, which was a case in which the purchaser rescinded the contract and abandoned the premises. Gilbert v. Peteler, 38 N. Y. 165, 92 Am. Dec. 785, where held, also, that the purchaser's claim for improvements will be a lien on the premises until paid. Perkins v. Hadley, 4 Hayw. (Tenn.) 148; Smithson v. Inman, 2 Baxt. (Tenn.) 818; Patrick v. Roach, 21 Tex. 251, 27 Tex. 579; Erwin v. Myers, 46 Pa. St. 96. See, contra, Wilhelm v. Fimple, 31 Iowa, 131, 7 Am. Rep. 117. The extraordinary statement is made in this case that a purchaser is not entitled to an allowance for his improvements where he sues to rescind the contract, but that he would be if he sued to recover damages for breach of the contract. If this be true, the purchaser electing to affirm the contract, may recover damages for the breach, including the value of his improvements, retain possession of the land, and by getting in the rights of the adverse claimant, practically receive compensation for his improvements without hav- ing incurred a loss on their account. On the other hand, if he elected to rescind the contract, he could have nothing for his improvements; their entire benefit would pass to the vendor upon a return of the premises to him; or he (the vendor) would be allowed their value when sued in ejectment by the adverse claimant. These results necessarily follow from the rule that upon rescission of the contract the premises must be restored to the vendor, and that tipon affirmance of the contract by action for damages the purchaser is not obliged to surrender the possession. The only case cited to sustain the foregoing decision was that of Gillett v. Maynard, 5 Johns. (N. Y.) 85, 4 Am. Dec. 329, which was a suit to recover back the purchase money and value of im- provements, the contract being void because not in writing, and the vendor having refused to perform. See, contra, the latter case Mason v. Swan, 6 Heisk. (Tenn.) 450; Rhea v. Allison, 3 Head (Tenn.), 176. 48 2 Sugd. Vend. (8th Am. ed.) 515; Scott v. Battle, 85 N. C. 184, SO Am. Re> 694. But see Ewing v. Handley, 4 Litt. (Ky.) 371, 14 Am. Dec. 140, where the purchaser was permitted to set off improvements against rent, though made when he knew the title was defective. But he was denied an allowance for improvements made after he had recovered judgment against the vendor in an action for breach of the contract. In Witherspoon v. McCalla, 3 Des. (S. C.) 245, the rule stated in the text seems to have been restricted to cases in which the defect was notorious, and the purchaser, buy- ing on a speculation, had been, on account of the defect, able to get the property much below its real value. 7G4 MARKETABLE TITLE TO KEAL ESTATE. in a fraudulent intent of the vendor in selling the property. 6 * The vendor will of course be entitled to set off against the improve- ments, the fair rental value of the land, 70 without the improve- ments. 71 If the purchaser has had the use and benefit of the im- provements which he has made, he will be entitled only to their present value, and not their value at the time they were made. 72 It has been held that if the purchaser recover the value of his improvements against ail adverse claimant, he must refund the amount so recovered if the vendor afterwards establishes his title.' 3 The right of the purchaser to n decree for interest on the pur- chase money paid by him and for the value of his improvements, and the right of the vendor to an account of the rents and profits, and an allowance for waste beyond ordinary wear and tear, ob- viously depend in a great measure upon the circumstances of each particular case, and cannot be made the subjects of unbending rules. A court of equity will be chiefly concerned to see that each party i> placed as nearly as possible in statu quo, without regard to arbitrarv restrictions. 74 v 2S1. PLEADING. In some cases it has been held that it is incumbent on the purchaser seeking to rescind an executory con- tract for the sale of lands, to aver and prove facts showing that the title is bad, and that he cannot require the vendor to show title. 75 It is tme that the vendor may be in possession of many facts respecting the title which it would be exceedingly difficult for the purchaser to ascertain, such as the happening of contingencies, on which the validity of the title depends, e. g. f the death of life tenants, or the births of persons in remainder, and other facts of Strike's Case, 1 Bland (MdJ, 57. Taso* c-ited nupru throughout this section. Winters v. Elliott, 1 Lea (Tenn.), 070; "Mason v. Lawinp. 10 Lea (Tonn.), 204. 11 1 41 mourn* v. Dupre (Minn.), f). r > X. W. Hop. 120. William* v. Rogers, 2 Dana (Ky. ), 374; Sea in ore v. Harlan, :\ Dan:i (Ky.), 411. 'Morton v. Ridjjvny, 3 .1. .1. Marsh. (Ky.) 258. " Little-field v. Tinaley, 20 Tex. 333. 358. '* Sec ante, | 117, as to burden of proof in act inns for breach of covenant of wlnin. 2 ttoh. Pr. 100; Riddpll v. Ulakr. 4 Cal. 264; Thayer v. White. 3 Cnl. 228; Mo* v. Davidson, 1 Sin. & M. (Minn.) 112; <; rant land v. Wight, ft Munf. (Va.) 295. In both these cae the contract had been executed. OF THE SUIT FOE RESCISSION PKOPEK. 765 like kind which cannot be discovered by examining the public records; and cases might occur in which the purchaser would be involved in great hardship, if required to prove facts lying peculiarly within the knowledge of the vendor. At the same time it is clear that it would be inequitable to permit the purchaser, when tired of his bargain, to come into a court of equity, and upon the bare allegation that the title i.i bad, put the vendor to the vexa- tion and expense of proving it to be sufficient. He should, at least, be required to point out the defect of which he complains, and to prove it as alleged. 76 But there are cases which decide that if the vendor sues for specific performance, as a general rule the burden will be upon him to show that he has such a title as the purchaser can be required to take. 77 If the vendor sue for specific performance, it is not necessary that the purchaser's objections to the title be taken in his answer ; they may be made at any time before the hearing. 78 282. PARTIES. All parties in interest must, of course, be made parties to the suit for rescission. 79 An assignee of one of the purchase-money notes has been held a necessary party. 80 So, also, 79 Ante, 244. "Griffin v. Cunningham, 19 Grat. (Va.) 571; Grantland v. Wight, 5 Munf. (Va.) 295; Walsh v. Barton, 24 Ohio St. 28; Jarman v. Davis, 4 T. B. Mon. (Ky.) 115; Daily v. Litchfield, 10 Mich. 38; Dwight v. Cutler, 3 Mich. 566, 64 Am. Dec. 105; Cornell v. Andrus, 36 X. J. Eq. 321; Allen v. Adams, 162 Iowa 300, 143 N. W. 1092. See ante, 244. It is suggested with diffidence, that the sufficiency of the title of the vendor often depends upon one or more questions of fact alleged upon the one side and denied upon the other, and that whenever the pleadings have reached this stage in any suit or pro- ceeding in which the sufficiency of the title is involved, it would seem that the hurden of proof should he devolved upon him who has the affirmative of the issue, whether vendor or purchaser, unless the fact is of a kind lying peculiarly within the knowledge of the party having the negative. The parties should so plead that it may be determined whether the title depends upon a question of law or a question of fact; so that, in the latter event, they may arrive at an issue, and the burden of proof be intelligently and not arbitrarily disposed. 78 Park v. Johnson, 7 Allen (Mass.), 378. In Harding v. Olsen, 177 111. 298, 52 N". E. Rep. 482, it was said that the only necessary party to the bill is the party against whom the decree for repayment will operate. "Cummins v. Boyle, 1 J. J. Marsh. (Ky.) 480. 60 Pollock v. Wilson, 3 Dana (Ky.) 25. 766 MARKETABLE TITLE TO REAL ESTATE. one who had purchased from the complainant. 81 If the purchaser should die ponding the suit, his heirs must be made parties. By a rescission their interests would be directly affected, and to author- ize a decree it is indispensable that they should be before the court. 81 "Yoder v. Swearinpen. J. .1. Marsh. (Ky.) 518. "Huston v. Noble, 4 J. J. Marsh. (Ky.) 130. CHAPTER XXXI. OF DOUBTFUL TITLES. GENERAL RULES. 283. CLASSIFICATION OF CASES OF DOUBTFUL TITLES. 284. CASES IN WHICH THE TITLE WILL BE HELD FREE FROM DOUBT. 285. DOUBTFUL TITLES AT LAW. 286. INCONCLUSIVENESS OF JUDGMENT OR DECREE. 287. SPECIAL AGREEMENTS AS TO THE TITLE. 288. PAROL EVIDENCE TO REMOVE DOUBTS. 289. EQUITABLE TITLE. ADVERSE CLAIMS. 290. DEFEASIBLE ESTATES. 291. TITLE AS DEPENDENT UPON ADVERSE POSSESSION. 292. PRESUMPTIONS FROM LAPSE OF TIME. 293. TITLE AS AFFECTED BY NOTICE. 294. BURDEN OF PROOF. 295. ILLUSTRATIONS OF THE FOREGOING PRINCIPLES. 296. Errors and irregularities in judicial proceedings. 297. Sale of the estates of persons under disabilities. 298. Want of parties to suits. 299. Defective conveyances and acknowledgments. Imperfect registra- tion. 300. Construction of deeds and wills. 301. Competency of parties to deeds. 302. Title as dependent upon intestacy. Debts of decedent. 303. INCUMBRANCES. 304. Admitted incumbrances. 305. Incumbrances which make the title doubtful. 306. Apparently unsatisfied incumbrances. 307- ENCROACHMENTS AND DEFICIENCIES. 307-a, 307-b. 283. GENERAL RULES. Unless the contract contains a stipu- lation to the contrary, there is always an implied agreement that the title offered by the vendor shall be marketable, 1 and that it , * Scudder v. Watt, 90 N. Y. Supp. 605 ; 98 App. Div. 40 ; Brady v. Bank of Com., 41 Okl. 473, 138 Pac. 1020. Obviously, a marketable or merchantable title is one to which no objection of a kind that would interfere with a sale of the property can be raised; for this is implied in the term itself. But there is no implied agreement that the title shall be satisfactory to the pur- chaser or his attorney. Green v. Ditsch, 143 'Mo. 1; 44 S. W. Rep. 749. [767] 768 MARKETABLE TITLE TO REAL ESTATE. shall be fairly deducible of record. 4 A purchaser of lands can never be required to accept a doubtful or unmarketable title,* even though the fullest indemnity be offered by way of a general warranty from a solvent vendor. 4 Specific performance is a matter of grace and not of right, and will never be decreed when the title is open to reasonable doubt. 6 All titles absolutely bad are, of course, unmarketable, but the expression "marketable title" as originally employed by courts of equity, was not the equivalent of " good title " or " perfect title/' nor the opposite of " bad title " or " defective title," but was technical in its character, and meant a title concerning which there were no fair and reasonable doubts; such a title as a court of equity would compel a purchaser to ac- cept on a bill by the vendor for specific performance. 6 It is pos- sible that a perfect title may be unmarketable ; 7 for example, suppose the validity of A's title depends upon the question whether or not he is the next of kin to B. If he is indeed the next of kin his title is perfect. But if it cannot appear to the court beyond Ante, 6. Dart. Vend. 734; Sugd. Vend. (8th Am. ed.) 577 (386) ; 2 Warvelle Vend. 843: Adams Eq., m. p. 84; Story's Eq. Jur. 693; Pomeroy's Eq. Jur. 1405. Beach M*l. Eq. Jur., 607; Bispham Eq. Jur., 378; Atkinson Marketable Title, ch. 1 ; Diamond State Iron Co. v. Husbands, 8 Del. Ch. 205, 68 All. 240. Batchelder v. Macon, 67 N. C. 181. Mitchell v. Stinemetz, 97 Pa. St. 253; Maltby v. Thewg, 171 111. 264; 49 N. E. Rep. 486; Wesley v. Eells, 177 U. S. 370; Dyker M. L. & I. Co. v. Cook, 159 N. Y. 6; 53 N. E. Rep. 690; Sherman v. Beam, 27 S. D. 218; 130 N. W. 442. Adams Eq., m. p. 84; Beach Mod. Eq. Jur. 606. Stapylton v. Scott, 16 Ve*. 272; Jervoise v. Duke of Northumberland, 1 J. & W. 539. If. after the vendor has produced all the proof he cnn, a reasonable doubt still remains, the title is not marketable, and the purchaser is not obliged to take it. Shrit'er v. Shriver, 86 X. Y. 575. The rule in New Jersey has been declared to be that the purchaser will not be required to tke a title which is reason- ably doubtful even though at law the title might be declared to be good. Van Riper v. Wickersham, 76 N. J. Eq. 232; 76 Atl. 1020, Ann. Cas. 1912 A. 319. 'Reynold* v. Strong, 82 Hun (N. Y.), 202; 91 N. Y. 8pp. 329, where it was said that a title may bo valid, and yet not marketable. A material defect in the title to land is such a defect as will cause a reasonable doubt and just apprehension in the mind of a reasonable, prudent and intelligent person, acting upon competent legal advice, and prompt him to refuse to take the land at a fair value. Eggers v. Busch, 154 111. 604; 39 N. E. Rep. 619. OF DOUBTFUL TITLES. 769 a reasonable doubt that he is such, then the title, though really good if all the facts could be known, will be deemed unmarketable. 8 This doctrine of "marketable titles" was originally cognizable only in the courts of equity, but in several of the American States in which the distinction between legal and equitable procedure has been abolished, the same doctrine has been applied in courts of law, e. g., in actions to recover back the purchase money. To this fact is probably due the tendency of the courts in those States to apply the term "unmarketable" to such titles as are absolutely bad, as well as those which are merely doubtful. It is impossible in the nature of things that there should be a mathematical certainty of a good title. 9 Such a thing as absolute security in the purchase of real estate is unknown. 10 But a bare possibility that a title may be affected from certain causes, when the highest possible evidence of which the nature of the case admits, amounting to a moral certainty, is given that no such cause exists, does not render the title doubtful. 11 The purchaser cannot demand a title absolutely free from all suspicion or possible de- fect ; 12 nor that he be guaranteed against any trouble on account of the title. 13 He can simply require a title such as prudent men, well advised as to the facts and their legal bearings, would be willing to accept. The doubts must be such as will affect the 'Post, this ch. 289. It is possible that facts not appearing upon the records may overthrow a title apparently good, but in such a case it devolves on the purchaser to point out the defect. Hillyard v. Banchor, 85 Kan. 516; 118 Pac. 65. 9 Language of Lord HABDWICKE in Lyddall v. Weston, 2 Atk. 20. First African Soc. v. Brown, 147 Mass. 196, 298; 17 N. E. Rep. 549. 10 Rawle Covts. for Title (5th ed.), 259. "Moser v. Cochran, 107 N. Y. 35; 13 N. E. Rep. 442; Schermerhorn v. Niblo, 2 Bosw. (N. Y.) 161; Hedderley v. Johnson, 42 Minn. 443; 44 N. W. Rep. 527; Webb v. Chisolm, 24 S. C. 487; Grasser v. Blank, 110 La. 493; 34 So. Rep. 648 ; Tripp v. Sieler, 38, S. D. 3211 ; 161 N. W. 337 ; Keneflck v. Shumaker, 64 Ind. App. 552; 116 N. E. 319. 12 Todd v. Union Dime Sav. Inst., 128 N. Y. 636; 28 N. E. Rep. 504; Jackson v. Creek, 47 Ind. App. 541; 94 N. E. 416; Milton v. Crawford, 65 Wash. 145; 118 Pac. 32. "Close v. Martin, 208 Mass. 236 j 94 N. E. 388. 97 770 MARKETABLE TITLE TO REAL ESTATE. market value of the estate. 14 They must not be made up for the occasion, based on captious, frivolous and astute niceties; they must be such as would induce a prudent man to hesitate in accept- ing a title affected by them. 15 What matters of law or what mat- ters of fact are sufficient to make a title so doubtful as to be un- marketable, cannot be indicated by positive rules. Facts or ques- tions which present no difficulties to one judicial mind may, in the opinion of another, raise insuperable objections to the title. 16 It is obvious that the existence of a " fair and reasonable doubt " as to the title must depend upon the capacities of the judge to whom the question is addressed. " Practically the judge acts upon his own doubts." 17 It has been said that the title which a purchaser will be required to take should be, like Caesar's wife, free from suspicion, but that the purchaser will not be relieved on account of possibilities of defects, or mere suspicions of faults ending only in suspicion. 18 The doubt must be " grave and reason- "Vreeland v. Blauvelt, 23 N. J. Eq. 485. A marketable title is one that will bring as high a price in the market with the purchaser's objection to its sufficiency as without. Pannly v. Head, 33 111. App. 134. "Nicol v. Carr, 35 Pa. St. 38; Kimball v. Tooke, 70 111. 553; Summy v. Ramsey, 53 Wash. 93; 101 Pac. 506. l *Atk. Marketable Title (Law Lib.), ch. 1 ; 1 Sugd. Vend. (8th Am. ed.) 579 (387). " Sedgwick v. Hargrave, 2 Ves. 59. "Gordon v. Champneys, Turn. & Russ. 88; Laurens v. Lucas, 6 Rich. (8. C.) Eq. 217; Monagan v. Small, 6 Rich. N. S. (S. C.) 177; Carroll v. McKahary, 55 X. Y. Supp. 113; 35 App. Div. 528. While the court will give the purchaser reasonable assurance of security, it will not countenance the idle scruples of one interested in withholding the purchase money. Brown v. Witter. 10 Ohio, 143. The doubts about the title mut be such as would probably interfere with a resale of the premises by the purchaser. Billick v. Davenport, 164 Irnva, 10f>; 145 K. W. 470; Horowitz v. Mendel R. E. Co., 145 Ga. 8; Sharp v. Adrock, 4 RUBS. 374; I I.i -el tine v. Simmons, 6 W. R. 368; Pegler v. White, 33 Beav. 403. See, also, Potter v. Parry, 7 W. R. 182, Hurnell v. Firth, 15 W. R. 54fi; Barnett v. T-li-ph..iie C.... 2IM Mam. 41; 87 N. K. ->;_-. William* v. Brick.-r. s:j Kan. .-:; 10!) Pa,-. 998; Bodcaw Lumber Co. v. \\1iite. 121 La. 715; 46 So. 782. A purchaser will not bo compelled to accept a conveyance from a trustee under a will when a suit is pending to tent the validity of the will. Hale v ( ravcner, 128 111. 408; 21 N. K. Ili-p. .VII. A title dependent on questions to the ritfht of an executor to Hell under the will, and as to whether certain I. %!-, hail n,,t elected to take under the will, both of which <|u.-- ti'-iiH are in litigation, is not marketable. Warren v. Banning, 21 N. V. Supp. 883. A title Hiiggcntive of future litigation is unmarketable. Beer v. Leonard, OF DOUBTFUL, TITLES. 775 there be any reasonable chance that some third person may raise a question against the owner of the estate after the completion of the contract, the title will be deemed unmarketable. 45 (II) Where there has been a decision by a court of co-ordinate jurisdiction adverse to the title, or to the principle on which the title rests, though the court thinks that decision wrong.* 6 (III) Where there has been a decision in favor of the title, which the court thinks wrong.* 1 (IV) Where the title depends on the construction and legal operation of some ill-expressed and inartificial instrument, and the court holds the conclusion it arrives at to be open to reasonable doubt in some other court. 49 Generally, it may be said that the opinion of the court upon any question of law on which the title depends, will not render the title marketable if the court thinks that another judge 49 or other competent person ^ might entertain a different opinion upon the same question. The test as to whether a title is doubtful or not upon a question of law, has been held to 40 La. Ann. 845; 5 So. Rep. 257; James v. Meyer, 41 La. Ann. 1100; 7 So. Rep. 618. Qucere, whether a purchaser can be compelled to accept a tax title? The court intimated that such a title might be as free from objec- tion as any other. Lesley v. Miorris, 9 Phila. (Pa.) 110; 30 Leg. Int. 108. 45 Seaman v. Vawdrey, 16 Ves. 390; McXutt v. Nellans, 82 Kan. 424; 108 Pac. 834. A title is doubtful if it exposes the purchaser to litigation. Freetly v. Barnhart, 51 Pa. St. 279; Speakman v. Forepaugh, 44 Pa. St. 363. "If the purchaser would be exposed to a lawsuit with the least chance of losing it, he ought not to be held to the bargain." GIBSON, C. J., in Gans v. Renshaw, 2 Pa. St. 34; 44 Am. Dec. 152. A title dependent upon the ques- tion whether certain acts, conduct or admissions amount to an estoppel in pais is unmarketable. McGrane v. Kennedy, 10 N. Y. Supp. 119. 44 Per ROMILLY, M. R., in Mullings v. Trinder, L. R., 10 Eq. 454; Ferris v. Plummer, 42 Hun (N. Y.), 440; Wesley v. Eells, 177 U. S. 370. 47 Per ROMILLY, M. R., in Mullings v. Trinder, L. R., 10 Eq. 454. 48 Alexander v. Mills, L. R., 6 Ch. 132; Pyrke v. Waddingham, 10 Hare, 1; 17 Eng. L. & Eq. 534; Richards v. Knight, 64 N. J. Eq. 1%; 53 Atl. 452; McCaffery v. Little, 20 App. D. C. 116. A doubtful title cannot be made marketable by an opinion of a court upon a case stated between the vendor and purchaser. Pratt v. Eby, 67 Pa. St. 396. "Vreeland v. Blauvelt, 23 N. J. Eq. 483. The fact that a court is divided in opinion as to the construction of a statute affecting the validity of a title is of itself sufficient ground for refusing to compel the purchaser to complete the contract. Pratt v. Eby, 67 Pa. St. 396. 50 2 Beach Mbd. Eq. Jur. 606. 776 MARKETABLE TITLE TO REAL ESTATE. be the certain conviction of the court, in deciding the point, that no other judge would take a different view." (V) Where ihe title rests upon a presumption of fact of such a kind thai if the question of fact were before a jury it would be the duty of the judge not to give a clear direction in favor of the fact, but to leave the jury to draw their own conclusions from the evidence. M (VI) Where the circumstances amount to presumptive (though not necessarily conclusive) evidence of a fact fatal to the title, as, e. g., that the exercise of a power under which the vendor claimed was a fraud upon the power. 63 285. CLASSIFICATION OF CASES IN WHICH THE TITLE WILL NOT BE HELD DOTJBTFTTL. The same author makes the following classification of cases in which the court would not, as he conceives, consider the title to be doubtful. 54 (I) Where the probability of litigation ensuing against the purchaser in respect of the doubt is not great; the court, to use Lord Harflwicke's language in one case, " must govern itself by a moral certainty, for it is impossible in the nature of things there should be a mathematical certainty of a good title. 66 "2 Dart Vend. 1102. Rogers v. Waterhouse, 4 Drew, 32; Pegler v. White, 33 Beav. 403; Howe v. Hunt, 31 Beav. 420. But set Beioley v. Carter, L. R. 4 Hi. App. 230, and cases cited. 2 Dart Vend. 1103, n. "Emery v. Grocock, 6 Madd. 54; Shriver v. Shriver, 86 N. Y. 575; Doutney v. Lamhie, 78 N. J. Eq. 277, 78 Atl. 746. To this class, Mr. Fry says, may be referred many of those cases where a doubt as to a fact has prevailed -. as where the title depended upon proof that there was no creditor who could take advantage of an act of bankruptcy committed by the vendor (Lower v. Lush, 14 Veil. 547), or where the title depended upon the absence of notice of n incumbrance, of which absence the vendor produced some evidence ( Freer r. Hesse, 4 De G., (M. A G. 405), or upon the presumption arising from mere possession. Kyton v. Dieken, 4 Pri. 303. "Warde v. Dixon, 28 L. ,!. Ch. 315, S. C., 7 W. R. 148. Fry 8p. Perf. (3d Am. ed.) | 871. Lyddall v. Weston, 2 Atk. 1ft. In this case specific performance by the purchaser wa* enforced, though there was a reservation of mines by the crown, the court being -ati-fi.-.l that there was no subject-matter for the reservation to act upon or that all legal right to exercise it had ceased. See, also, Seamen v. Vawdrey, 16 Ves. 303; Martin v. Cotter, 3 Jon. & L. 406; Reed v. Sefton. 11 Cal. App. 88, 103 Pac. 1005. In Spencer v. Topham, 22 Beav. 573. an unwilling purchaser was compelled to take a title depending OF DOUBTFUL TITLES. 777 (II) Where there has been a decision adverse to the title by an inferior court, which decision the superior court holds to be clearly wrong. 56 (III) Where the question depends on the general law of the land; "as a general and almost universal rule the court is bound as much between vendor and purchaser, as in every other case, to ascertain and so determine as best it may, what the law is, and to take that to be the law which it has so ascertained and deter- mined." '' An illustration of this rule, as applied in America, will be found in the case of Fairchild v. Marshall. 58 In that case the on the validity of a purchase by a solicitor from his client, on proof of the validity of the transaction, though given in the absence of the client, who, it was urged, might possess other evidence and ultimately set aside the sale. See, also, Falkner v. Equitable Reversionary Society, 4 Drew. 352. The mere fact that the purchaser is to take under an assignment for the benefit of creditors, which may be attacked as invalid, does not render the title doubt- ful or unmarketable in the absence of anything to show that the title will probably be attacked. Bayliss v. Stinson, 110 N. Y. 621, 17 N. E. Rep. 144. The bare possibility that minor heirs may attack the probate of their an- cestor's will within the time allowed them by statute after attaining their majority, with nothing to show even a suspicion of the existence of probable grounds for such an attack, does not render a title under the will unmarketable. McCaffrey v. Little, 20 App. D. C. 116. ^Beioley v. Carter, L. R., 4 Ch. 230; Alexander v. Mills, L. R., 6 Ch. 124; Radford v. Willis, L. R., 7 Ch. 7 ; Holly v. Hirsh, 135 N. Y. 590, 32 N. E. Rep. 709. 57 Per JAMES, L. J., in Alexander v. Mills L. R., 6 Ch. 131, 132; Forster v. Abraham, L. R. 17 Eq. 351; Osborne v. Rowlett, 13 Ch. D. 774; Pyrke v. Waddingham, 10 Hare, 1; Palmer v. Locke, 18 Ch. Div. 381; In re Thackeray, 40 Ch. Div. 34; Barrette v. Whitney, 36 Utah 574, 106 Pac. 522, 37 L. R. A. (N. S. ) 368. Where there is a doubt about the validity of a title arising from a construction of an act of parliament, or the language of an instrument or will, it is the duty of the court to remove the doubt by deciding it. The decision removes the doubt, and specific performance will be adjudged. Bell v. Holtby, L. R., 15 Eq. 178. See Fairchild v. Marshall, 42 Minn. 14, 43 X. W. Rep. 563; Ebling v. Dwyer, 149 N. Y. 460, 44 N. E. 155; Williams v. Marx, 124 Cal. 22, 56 Pac. Rep. 603; Ladd v. Weiskopf, 62 Minn. 29, 64 X. W. Rep. 99; Lippincott v. Wikoff, 54 N. J. Eq. 107, 33 Atl. 305; Hatt v. Rich, 59 N. J. Eq. 492, 45 Atl. 969. A doubt precluding specific performance exists if the seller's title depends on a legal question not settled by previous de- cisions, or concerning which there are dicta of weight indicating that courts might differ as to its determination. Richards v. Knight, 64 N". J. Eq. 196, 53 Atl. 452. 58 42 Minn. 14, 43 N. W. Rep. 563. 98 778 MARKETABLE TITLE TO KEAL ESTATE. purchaser objected to the title on the ground that the land was sub- ject to a claim of dower in favor of the widow of a former owner, but the vendor showed that the widow had elected to take a pro- vision in her husband's will in lieu of dower, and the Supreme Court in that State having decided that such election constituted a bar to dower, it was held that the question of law whether such election barred the widow's claim to dower could no longer be considered doubtful, and that the purchaser must complete the contract. (IV) Where tlie question, though one of construction, turns on a general rule of construction, unaffected by any special context in the instrument and the court is in favor of the title. 59 (V) Where the title depends on a presumption, provided it be such that if the question were before a jury, it would be the duti/ of the judge to give a clear direction in favor of the fact, and not to leave the evidence generally to the consideration of the jury. 60 (VI) Where the doubt rests not on proof or presumption bid on a suspicion of mala fides. 91 But a purchaser cannot be com- "RadTord v. Willis, L. R., 7 Ch. 7. Emory v. Grocock, 6 Madd. 54; Barnwell v. Harris, 1 Taunt. 430. Thus, where the recital of deeds raised the presumption that they contained nothing adverse to the title, the mere loss of the deed, where the title was fortified by sixty years' undisputed possession, was held not to create a reasonable doubt. Prosser v. NVatts, 6 Madd. 59; Maginn^s v. Fallon, 2 Moll. 561. So, where the validity of a title depended on no execution having been taken out between certain specified times, and nothing was shown to have been done which could be referred to Hiich an execution, the title was held pood. Canst on v. Macklew. 2 Sim. 242. So, where the question was whether a deed from executors tmiKt be presumed in a case in which the proceeds of sale were received by them and distributed among those entitled. Wills v. Fisher, 257 Pa. 487, 101 All. 818. So, also, a prior voluntary conveyance by the purchaser's grantor is no sufficient objection to the title, the court acting upon the presumption that the voluntary conveyance had not been validated by subsequent dealings. Rtitterfield v. Heath. 15 Beav. 403; Buckle v. Mitchell, 18 Ves. 100. "This point, the author says, has given rise to some diversity of opinion. In Hartley v. Smith, 6 Buck Bunkr. C. 3<58, the title depended on a grant of chattel*. |M)-sc--.iin of which was conditionally reserved by the grantor in fraud, it was alleged, of creditors. The purchaser wan rolievitl from the bar- gain on the ground that he hud no adequate means of ascertaining the bona fidft of the transaction. See, also, Boswdl v. Mendham, 8 Mad. 373. But the mere posihility of fraud in extrinsic fact* cannot always be held a ufflcient objection to the title. Cattell v. Corrall, 4 Y. & C. Ex. 22* ; Oreen OF DOUBTFUL, TITLES. 779 polled to take a title which is open to attack on the ground of fraud, bad faith, or breach of trust on the part of one through whom the title is derived. 62 Thus, where a conveyance of land v. Pulsford, 2 Beav. 71; McQueen v. Farquhar, 11 Ves. 467; Alexander v. Mills, L. R., 6 Ch. 124. See, also, Grove v. Bastard, 1 De G., M. & G. 69; Re Huish's Charity, L. R., 10 Eq. 5; Colton v. Wilson, 3 P. Wms. 190; Mor- rison v. Arnold, 19 Ves. 670; Weddall v. Nixon, 17 Beav. 160; McCulloch v. Gregory, 3 K. & J. 12; Jacobs v. Morrison, 136 N. Y. 101, 32 N. E. Rep. 552. Whether a title derived through one who purchased in his own right forty years before at a sale made by himself as trustee, was valid, there being noth- ing to show that the trustee did not properly account to the cestui que trust, and the property having been frequently transferred in the meanwhile. Held, marketable. Herbert v. Smith, 6 Lans. (N. Y.) 493. Where, by order of court, trustees were permitted to purchase the trust subject, the beneficiaries being parties to the suit, it was held that such a purchase formed no ground of objection to the title. Webster v. Kings Co. Trust Co., 145 N". Y. 275, 39 N. E. Rep. 964. If the trustee purchase the trust subject himself he cannot rescind the contract on the ground that the sale was invalid. Peay v. Capps, 27 Ark. 160; Richardson v. Jones, 3 Gill & J. (Md.) 163, 22 Am. Dec. 293. There is no presumption of law that property acquired by a married woman by conveyance from a third person, was paid for out of the husband's means, nor that the conveyance was made to the wife for the purpose of defeating the husband's creditors. Hence, the mere fact that a title is derived through such a conveyance will not render it unmarketable. Nicholson v. Condon, 71 Md. 620, 18 Atl. Rep. 812. As to the effect of payment by the husband for property conveyed to the wife, see iSeldner v. McCreery, T5 Md. 287, 23 Atl. Rep. 641. * 2 Preissenger v. Sharp, 39 St. Rep. (N. Y.) 2fiO, 14 N. Y. Supp. 372, where the question was whether a certain sale was no more than a purchase of the trust subject by the trustee himself. Gardner v. Dembinsky, 65 N. Y. Supp. 183, 52 App. Div. 473, in which case the trustee purchased the premises at a sale made by himself. See, also, People v. Globe Ins. Co., 3$ Hun (N. Y.), 393; Close v. Stuyvesant, 132 111. 607, 23 N. E. Rep. 868. Where the question was whether a certain entry of public lands would probably be canceled as fraudulent: McPherson v. Smith, 49 Hun (N. Y.), 254, 2 N. Y. Supp. 60. Titles dependent upon the following questions involving mala fides, have been held unmarketable: Whether a purchase of the premises in partition by one suing as next friend to an infant was valid: Collins v. Smith, 1 Head (Tenn.), 251. Whether a conveyance voluntary on its face could be sustained against a subsequent judgment creditor of the grantor : Tillotson v. Gesner, 6 Stew. Eq. (N. J.) 313. Whether a purchaser of an estate from trustees under a will had acted in collusion with the trustees to defeat the purposes of the testator by the sale: McPherson v. Smith, 49 Hun (N. Y.), 254, 2 N. Y. Supp. 60. Whether a sale and conveyance by an executor to A., and a reconveyance within four days by A. to the executor, was in fact no more than a sale by the executor to himself: People v. Open Board, etc., 92 N. Y. 98. Whether a purchase by a wife at a sale made by her husband as assignee 780 MARKETABLE TITLE TO REAL ESTATE. was made by the defendant in a suit just before judgment for a large sum was rendered against him, which judgment would have bound the land if the conveyance had not been made, and the evidence failed to show that the purchase was made in good faith, without notice and for valuable consideration, it was held that a purchaser could not be compelled to accept a title dependent upon such conveyance. 63 2S 1 Sugd. Vend. (8th Am. ed.) 602, citing Gibson v. Spurrier, Peake Ad. Cat. 49. "1 Sugd. Vend. (8th Am. ed.) 597 (400). Simmons v. Haseltine, 5 C. B. 654. OF DOUBTFUL, TITLES. 785 of the title which the purchaser was compelled to take. 74 The same observations apply with equal force where the doubt hinges upon a question of fact. It would be unjust to compel a purchaser to take a title dependent upon a doubtful question of fact, when the facts presented might be changed upon a new inquiry. 75 It has been said that it is only necessary, in determining whether a title is marketable, to ascertain whether or not there is some practical and serious question affecting the title, upon which persons not parties to the suit, and who cannot be estopped by the judgment, have a right to be heard in some future litigation. 76 On questions of title depending on the possibility of future rights 74 Post, 290. Pyrke v. Waddingham, 10 Hare, 1; Morgan v. Morgan, 2 Wh. (U. S.) 290; Irving v. Campbell, 121 N. Y. 353, 24 N. E. Rep. 821; Abbott v. James, 111 N. Y. 673, 19 N. E. Rep. 434; Kilpatrick v. Barton, 125 N. Y. 751, 26 N. E. Rep. 925; Fisher v. Wilcox, 77 Hun. (N. Y.), 208; Felix v. Devlin, 86 N". Y. Supp. 12, 90 App. Div. 103; Downey v. Seib, 92 N. Y. Supp. 43-1, 102 App. Div. 317; Boylan v. Townley, 62 N. J. Eq. 591, 51 Atl. 116; Wollenberg v. Rose, (Oreg.) 78 Pac. Rep. 751; Zimmerman v. Owen, (Tex. Civ. App.) 77 S. W. Rep. 971; Lockhart v. Smith, 47 La. Ann. 121, Itf So. Rep. 660; William* v. Bricker, 83 Kan. 53, 109 Pac. 948; N. Highlands Co. v. Holt, 144 Ga. 43, 85 S. E. 1039 ; Kohlrep v. Ram, 79 N. J. Eq. 386, 81 Atl. 1103; Barrette v. Whitney, 36 Utah 574, 106 Pac. 522, 37 L. R. A. (N. S.) 368. In Doebler's Appeal, 14 P. F. Smith (Pa.), 9, the vendor contended that he took a fee under the will; the purchaser insisted that the vendor took a life estate; the court at nisi prius was of the opinion that he took an estate tail, while the appellate court decided that he took a fee. But this last court refused to compel the purchaser to accept the title, since its decision was in no way binding upon those who might set up a claim in tail or in remainder. In Sohier v. Williams, 1 Curt. C. C. (U. S.) 479, a testatrix empowered a trustee to sell lands devised " when the major part of my children shall recommend and advise the same." The court was of the opinion that the consent of the major part of the children living when the power was to be exercised was sufficient to authorize a sale, but considered the question so doubtful, that, but for the fact that all parties in interest were before the court and would be bound by its decree, the purchaser would have been excused the performance of the contract. 75 Flemming v. Burnham, 100 N. Y. 10, 2 N. E. Rep. 905; Vought v. Williams, 120 N. Y. 253, 24 N. E. Rep. 195, 8 L. R. A. 59, 17 Am. St. Rep. 634; Robinson v. Steele, 95 Wash. 154, 163 Pac. 486; Deseumuer v. Rondel, 76 N". J. Eq. 394, 74 Atl. 703. Where no fact is in dispute and no doubtful question of law is presented, the purchaser must take the title. Mygatt v. Maslen, 126 N. Y. Supp. 405, 141 App. Div. 468. 'Argall v. Raynor, 20 Hun (N. Y.), 267. 99 786 MARKETABLE TITLE TO REAL ESTATE. arising, the court must consider the course which should bo taken if those rights had actually arisen, and were in course of litiirn- tion. 77 But if all parties in interest are before the court the objection that the title is doubtful, if dependent upon a question of law, cannot be made, because the court is bound to decide th<- question, and its decision when made will be conclusive upon the parties. 78 It is to be observed in this connection, that the rule which forbids the adjudication of a question of title, where all the parties in interest are not before the court, does not apply as between vendor and purchaser, when the objection is made that "Pyrke v. Waddingham, 10 Hare. 1. Sohier v. Williams, 1 dirt. C. C. (U. S.) 479; Ebling v. Ihvyer, 149 N. Y. 460, 44 N. E. Rep. 155. Mr. Fry in his learned treatise on Specific Performance (8 802), speaking of the doctrine of marketable titles in suits for specific performance, and defending it, says: "It must be remembered that the judgment of the court in such an action is in personam and not in rem; that it hinds only those who are parties to the action and those claiming through them, and in no way decides the question in issue as against the rest of the world (Oshorne v. Rowlett. 13 Ch. D. 781), and that doubts on the title of an estate are often questions liable to be discussed between the owner of the estate and some third person not before the court, and, therefore, not hound by its decision. Olass v. Richardson, 9 Ha. 701. If, therefore, there be any reasonable chance that some third person may raise a question against the owner of tlie estate after the completion of the contract, the court may consider this to be a circum- stance which renders the bargain a hard one for the purchaser, and one which in the exercise of its discretion, it will not compel him to execute. Though every title must in itself lie either good or had, there must be many titles which the courts cannot pronounce with certainty to belong to either of these categories in the absence of the parties interested in supporting both alter- natives, and without having heard the evidence they might have to produce. and the arguments they might be able to urge; and it is in the absence of these parties that the question is generally agitated in proceedings for specific performance. The court when fully informed Tiinst know whether a title he good or bad; when partially informed, it often may and ought to doulM." The reasoning of the learned author is satisfactory so far as it applies to a case where the doubt as to the title turns upon facts as to which the court Is not informed, l>ut does not appear to reach cases where the doubt turns upon a mere quest inn of law, the court being at all times presumed to know the law. "Chesman v. dimming*. 142 Mass. 65, 7 N. E. Rep. 13, citing Sohier v. Williams, 1 Curt. (C. C.) 479; Butts v. Andrews. 136 Mass. -2-1 \ . Cornell v. Andrews, 8 Stew. (N. J. Eq.) 7, 9 id. 321 ; f;ills v. Well-. :! Md. 492; People v. Stock Brokers' Building Co., 92 N Y IB] fining v. Oakland, etc., 8oc., 17 Mich. 230, 75 N. W. Rep. 42: l.ndd v. \\Yi-knpf. IW Minn. 29, 64 N. W. Rep. 99; Matthews v. Lightner, 85 Minn. 333, 88 N. W. l!,-p. 992. OF DOUBTFUL TITLES. 787 the title is defective, 79 though, of course, the rights of persons not before the court cannot be concluded by such an adjudication. The uncertainty as to what judgment another court may render upon the same state of facts or question of law is that which makes the title doubtful. In some of the American States, under modern systems of civil procedure in which legal and equitable relief are administered in one and the same form of action, the purchaser, when sued for the purchase money, or the vendor, when the purchaser objects that the title is doubtful, is permitted to bring in, as parties, all persons who could, if such objection be well founded, assert an adverse interest in the premises, so that the court may pronounce a judg- ment or decree in respect to the matter in controversy, which will be final and conclusive upon all parties in interest, 80 except, of course, such as are not sui juris. In those States in which the separate equitable jurisdiction is maintained, no reason is per- ceived why the vendor should not be permitted to adopt such a course in any case in which he might maintain a bill to quiet his title as against an adverse claimant. In a case in which the vendor, claiming under a tax deed, had obtained a judgment quieting his title against certain persons having vested interests under a deed by which contingent interests in others were created, it was held that such judgment was binding not only upon the defendants, having vested interests in the estate, but upon persons not then in being who might afterwards become entitled in remainder; and, hence, that the existence of 79 Lockman v. Reilly, 10 Abb. N. Cas. (N. Y.) 351. 80 Cooper v. Singleton, 19 Tex. 267, 70 Am. Dec. 333, diet.; Estell v. Cole, 52 Tex. 170. See the case of Batchelder v. Macon, 67 N. C. 181, where, in an action for the purchase money, the court, \mder a provision of the Code of Civil Procedure authorizing it to direct new parties to be brought in when necessary to a complete determination of any question in controversy, ordered that persons out of whose alleged interest in the premises the doubts as to the title arose, be made parties to the suit. Simpson v. Hawkins, 1 Dana X. Y. 16. 43 X. E. Rep. 527; Holly v. Hirsch. l."5 X. Y. 590, 32 X. E. Rep. 709; Blanek v. Sadlier, 153 X. Y. 556. 47 X. E. Rep. 921: Watson v. Boyle. 55 Wash. 141, 104 Par. 147; Becker v. Erickson, 142 111. App. 133; Wilson v. Korte. 91 Wash. 30, 157 Pac. 47: Tausk v. Siry, 180 X. Y. Supp. 439, 11O Misc. Rep. 514. A purchaser cannot he compelled to accept a title dependent upon an estoppel I'M pais. Mullitis v. Aiken. 2 Heisk. (Tenn.) 535; Topp v. White, 12 Heisk. (Tenn.) 165. Where the question was whether certain testimony sufficiently established the execution of a deed which would supply a missinp link in the chain of title, the title was held unmarketable, Griffin v. Cunninpham, 19 Grat. (Va.) 571. So, also, where parol proof of a waiver of a covenant not to assipn a lease was necessary. Murray v. Harway, 56 X. Y. 3.17. A tide that is imperfect of record and can be completed only by judicial decree founded upon parol evidence of extrinsic facts which may or may not lx> disputed, is not a clear title and a vendee, who is entitled by his contract to a marketable record title, is not bound to accept the same. Geray v. Mah- nomen I^aml Co. (Minn.) 173 X. W. 871. "2 Beach Mod. Eq. Jur. 5 60R. Campbell v. Harsh, 31 Okla. 436, 122 Pac. 127; Deseumeur v. Rondel, 76 X. J. Eq. 394, 74 Atl. 703. In the case of Fahy v. Cavanaph, 59 X. J. Eq. 278, 44 Atl. Rep. 154, the question was whether a will had ln-en properly executed a fact which could be proven only by the tentimony of the two HiihMcrihinp witnesses. The title depended entirely and exclusively upon what their testimony mipht be, and this wan held to render the title unmarketable. "Ante, ft 288; Lake Erie L. Co. v. Chilinski, 197 Mich. 214. 163 X. W. 929; fpton v. Smith, 183 Town 588. 166 X. W. 208; Klinjf v. Realty Co., 166 Mo. App. 190. 14R S. W. 203; Knox v. Desplain, 156 111. App. 134: XichoNon v. Lieher, (Tex. Civ. App.) 153 S. W. 641. In Campbell v. Harsh. 31 Okl. 436, 122 Pac. 127, it was held that the vendor could not supplement OF DOUBTFUL TITLES. 795 observed, however, that a title is not necessarily doubtful simply because it requires to be supported by parol testimony. As a general rule, for example, title by inheritance depends principally upon matters in pods, or facts resting in the knowledge of wit- nesses. 13 If those facts be clearly sufficient to establish the right of the vendor as heir, it is apprehended that the purchaser could not object to the title simply because it could not be established by record evidence. 14 Therefore, if the contract does not call for a title perfect upon the record, the title may be shown by oral the abstract with affidavits showing who were the heirs of a party through whom he claimed. A provision for a "good title free from incumbrances as shown by a complete abstract of title," requires a title disclosed by the records and not based on ex parte affidavits. Colpe v. Lindblom, (Wash.) 106 Pac. 634; Crosby v. Wynkoop, 56 Wash. 475, 106 Pac. 175. Where the abstract is to show a merchantable title, it cannot be supplemented with affidavits, oral proof, or writings not recordable. Moser v. Tucker, (Tex. Civ. App.) 195 S. W. 259. The vendor cannot supplement the abstract with ex parte affidavits showing the facts necessary to support title by adverse possession. Adkins v. Gillespie, (Tex. Civ. App.) 189 S. W. 275. The ab- stract cannot be supplemented with an affidavit that " Krups," a grantee in the chain of title, was the same person as " Krepps," by whom the next grant was executed. Harris v. Van Vranken, 32 N. D. 238, 155 N". W. 65. Affidavits are not admissible to supplement the abstract, though admitted to record under a statute which made them prima facie evidence of facts stated therein. Bradway v. Miller, 200 Mich. 648, 167 N. W. 15. "Barrette v. Whitney, 36 Utah 574, 106 Pac. 522, 37 L. R. A. (N. S.) 368. "See 2 Sugd. Vend. (8th Am. ed.) 24 (425), where it is said: "If, on the face of the abstract, the vendor has shown a sixty years' title, and if, for the purpose of supporting that title, it is necessary to show that such a person died intestate, or any other fact, if the facts are alleged with sufficient specification on the abstract then that abstract shows a good title, although the proof of the matters shown may be the subject of ulterior investigation." While it may not appear that a vendor claiming as sole heir is not in fact such, yet, if it cannot be made to appear beyond a reasonable doubt that there is in fact no other heir to the property, the title will be held unmar- ketable. Walton v. Meeks, 120 N. Y. 79, 82, 23 N". E. Rep. 115; Vognild v. Voltz, 141 111. App. 45. In Van Gundy v. Shewey, 90 Kan. 253, 133 Pac. 7~20, 47 L. R. A. (N. S.) 645, it was held that the abstract might be supple- mented with the affidavits of credible persons, showing such facts as heirship, intestacy, and capacity to convey. This case was distinguished in Beeler v. Sims, 91 Kan. 757, 139 Pac. 371, where held that the objection of an out- standing title in fee could not be removed by affidavits. 796 MARKETABLE TITLE TO REAL ESTATE. or other evidence outside the record to be marketable beyond any reasonable doubt. 15 It has been frequently held that a sale of lands implies a contract on the part of the vendor that the title shall be fairly deducible of record. 16 It has also been held that a purchaser cannot be required to accept a title which he cannot, by the record, show to be valid if attacked. 17 Both of these statements are to be qualified, it is apprehended, to this extent, namely, that, in those States in which the registration of deeds is necessary to their validity, the vendor need only show a prima facie valid record title." The record title may be apparently perfect, though in fact worthless, for some conveyance in the vendor's chain of title may have been inoperative to pass the title by reason of the infancy, coverture or lunacy of the grantor, or for some other reason which the record would not disclose; yet it would hardly be contended that the vendor must show affirmatively the com- petency of every grantor in his chain of title, or the non-existence of any other matter in pais which would invalidate the title. Of course, an unexplained break in the record chain of title would render the title doubtful and such as the purchaser could not bo required to accept. 19 But it is obvious that such a break may be satisfactorily explained so as to leave no imputation upon the title, as where the estate passed by descent, instead of purchase, from one of the vendor's predecessors in title to another; and that the title will not be rendered unmarketable by the fact that parol evidence must be resorted to for that purpose. If the fact or "Lamotte v. Steidinger, 266 111. 600, 107 X. E. 850; Attebury v. Blair, 244 111. 363, 01 X. E. 475, 135 Am. St. Rep. 342; Morse v. Stober (Mass.) 123 N. E. 780; Bachman v. Knnis R, E. Co., 190 Mo. App. 674, 204 S. W. 1115; Barrette v. Whitney, 36 Utah 574, 106 Pac. 522, 37 L. R. A. (N. S.) 368. 'Ante, | 5. Turner v. McDonald, 76 Cal. 180, 18 Pac. Rep. 202; Reynolds v. Borel, 86 Cal. 538. 25 Par. Rep. 67; Meekg v. Garner, 83 Ala, 17, 8 So. Rep. 378; Allen v. Globe Milling Co., 156 Cal. 286, 104 Pac. 305. " Calhoun v. Belden, 3 Bush iKy. i. 674, a case in which all the vendor's record evidences of title had been destroyed in a fire which consumed the register 'H office. Hollifield T. Landrum, (Tex. Civ. App.) 71 8. W. Rep. 979, citing the text. "Wilson v. Jeffries, 4 J. J. Me (Ky.) 494. OF DOUBTFUL TITLES. 797 facts upon which the title depends be of a nature not susceptible of proof, the title will be deemed unmarketable. 20 This rule was applied in a case where the purchaser, to sustain his title, would be required to prove a negative, namely, that the vendor had not committed an act of bankruptcy, 21 or that a certain deed was not fraudulent. 22 A title dependent on a fact must be regarded as marketable where the fact is so conclusively proved in a suit by the vendor for specific performance, that a verdict against the existence of the fact would not be allowed to stand in a court of law, and where there is no reasonable ground for apprehending that the same fact cannot be in like manner proved, if necessary, at any time thereafter for the protection of the purchaser. 23 When the purchaser objects to specific performance on the ground that the title is doubtful, the court may of course inquire into the facts upon which the objection is rested, for the purpose of determining whether the title is so doubtful that the purchaser will not be required to take it. 24 If satisfactory means are at hand for investigating and removing the doubt, the court will decree specific performance. 25 Defects in the record or paper title may be cured or removed by parol evidence, and the pur- chaser compelled to take the title. 26 The vendor's bill for specific M l Sugd. Vend. (8th Am. ed.) 594. Smith v. Death, 5 Madd. 371, where the question was whether a certain devisee had been brought up as a member of the Church of England and had been a constant frequenter thereof. Shriver v. Shriver, 86 N. Y. 575. 21 Lowe v. Lush, 14 Ves. 547. M Hartly v. Smith, Buck Bank. Gas. 360. 23 Barger v. Gery, 64 N. J. Eq. 263, 53 Atl. Rep. 483. 24 1 Sugd. Vend. (8th Am. ed.) 589. Osbaldiston v. Askew, 1 Russ. 160; Bentley v. Craven, 17 Beav. 204; Seymour v. Delancey, 1 Hopk. (N. Y.) 436, 14 Am. Dec. 552, where the court directed an issue at law to ascertain cer- tain facts from which it might be determined whether or not the title was marketable. Hedderley v. Johnson, 42 Minn. 443, 44 N. W. Rep. 527. 25 Kostenbader v. Spotts, 80 Pa. St. 430; Hedderley v. Johnson, 42 Minn. 443, 44 N. W. 527 ; Vognild v. Voltz, 141 111. App. 45. 2 *Hellreigel v. Manning, 97 N. Y. 56, citing Seymour v. Delancey, Hopk. (N. Y.) 436, 14 Am. Dec. 552; Miller v. Macomb, 26 Wend. (N. Y.) 229; Fagen v. Davison. 2 Duer (N. Y. ), 153; Brooklyn Park Com. v. Armstrong, 45 N". Y. 234; Murray v. Harway, 56 N. Y. 337; Shriver v. Shriver, 86 N. Y. 575; Talifer v. Falk, 173 N. Y. Supp. 251, 105 Misc. Rep. 6. Parol 798 MARKETABLE TITLE TO HEAL ESTATE. performance will bo retained until the doubts about the title are either removed or confirmed. 27 But it is conceived that such evi- dence must convince the court that there is no probability that the title of the purchaser will ever be attacked by a stranger having color of title, or that, if attacked, the purchaser must, of necessity, have at hand the means of showing that the attack cannot be sustained. 200. EQUITABLE TITLE. ADVERSE CLAIMS. To the prin- ciple that a purchaser cannot be required to complete the contract when there are doubts about the title which can only be removed by parol proof, has Jbeen referred those decisions which establish the rule that a purchaser cannot be compelled to take an equitable title, 28 or a title which is controverted in good faith by an adverse evidence is admissible, on behalf of the vendor, to correct a mistake in the name of a grantee in the chain of title. Lynch v. Ropers, 134 N. Y. Supp. 1071, 150 App. Div. 311. Under a statute providing that affidavits explain- ing defects in a chain of title may he recorded, the purchaser may be re- quired to take a title the objections to which are satisfactorily removed by affidavits put on record by the vendor. Hantz v. May, 137 Iowa 267, 114 X. W. 1042. "Seymour v. Delancey, Hopk. Ch. (N. Y.) 436 (495) ; 14 Am. Dec. 552. 1 Sugd. Vend. (8th Am. ed.) 579. Abel v. Hethcote, 2 Ves. Jr. 100; Cooper v. Denne, 1 Ves. Jr. 565; Freeland v. Pearson, L. R., 7 Eq. 246; Morris v. Mowatt. 2 Paige Ch. (N. Y.) 586, 22 Am. Dec. 661; Waggoner v. Waggoner, 3 T. B. Mon. (Ky.l 556; Jones v. Taylor, 7 Tex. 240, 56 Am. Dec. 48; Littlefield v. Tinsley, 26 Tex. 353; Ragan v. Gaither, 11 Gill & J. (Md.i 472; Hendricks v. Gillespie, 31 Grat. (Va.) 181. 194; Newberry v. French. 98 Va. 479, 57 N. K. Rep. 381; Reed v. Noe, 9 Yerg. (Tenn.) 282, especially where the equity is controverted. Ankeny v. Clark, 14S I". S. 345, a case in which the vendor, a railroad company, had not received a convey- ance from the government by reason of its failure to pay the costs of sur- veying the land. Coburn v. TIaley, 57 Me. 347. A purchaser cannot be required to take an equitable title when the facts constituting the equity rest only in parol and are liable to be shortly incapable of proof. Owings v. Bald- win. S Gill (Md.), 337. While the purchaser cannot l>e compelled to take an equitable title, it is to be remembered- that the vendor will, if time is not material, be allowed time in which to get in the legal title. Post, eh. 32. Andrew v. Bahcock. (Conn.) 26 Atl. Rep. 715. In Jones v. Haff, 36 Tex. 678, it would seem at the first glance that the court held that the purchaser could be compelled to take an equitable title, but a careful examination of the case shows that the vendor's title was really legal. The title of a remote predecessor of the vendor had been equitable only, consisting of a " bond for title," but there had been mesne conveyances down to the vendor, and he was in possession under a conveyance. Nothing more seems to have been decided OF DOUBTFUL TITLES. 799 claimant. 29 It would seem, however, that such titles are not merely " doubtful " in the technical sense of that term, but abso- lutely defective. It is obvious that a title cannot be rendered unmarketable by a mere naked adverse claim to the premises without color of title; otherwise a purchaser might always avoid performance of his contract by procuring a stranger to set up such a claim. 30 But if there be color of outstanding title which may in the case than that a legal title could not be rejected on the ground that it had been equitable only in its inception, assuming that the original equit- able title was such as a court of equity would enforce. "1 Sugd. Vend. (7th Am. ed.) 592 (520); Osbaldiston . v. Askew, 1 Russ. 160; Scott v. Simpson, 11 Heisk. (Tenn.) 310; Owings v. Baldwin, 8 Gill (Md.), 337; Linn v. McLean, 80 Ala. 360; Estell v. Cole, 62 Tex. 695; Morrison v. Waggy, 43 W. Va. 405, 27 S. E. Rep. 214; Boyd v. Boley, 25 Idaho, 584, 139 Pac. 139. A Us pendens renders the title of the vendor unmar- ketable. Earl v. Campbell, 14 How. Pr. (N. Y.) 330. But see Wilsey v. Dennis, 44 Barb. (N. Y.) 354, and cases cited post, 306. But the mere acceptance of a conveyance pendente lite will not affect the title of the grantee if the contract of sale was made before the suit was commenced. Parks v. Jackson, 11 Wend. (N. Y.) 442, 25 Am. Dec. $56. A sale of land for delinquent taxes puts a cloud on the title and renders it unmarketable. Wilson v. Tappan, 6 Ohio, 172. So, also, a suit attacking the validity of a will under which the vendor holds. Hale v. Cravener, 128 111. 408, affirming 27 111. App. 275. But if the person in whom is the alleged adverse title acquiesces in the vendor's claim to the title, the purchaser cannot refuse to perform the contract. Laverty v. Moore, 33 N. Y. 6*58. In Greenleaf v. Queen, 1 Pet. (U. S.) 138, it was held that a prior sale of the premises under a deed of trust, the purchaser never having complied with the terms of the sale, nor during twelve years laid any claim to the property, constituted no such objection to the title as would justify a rescission at the suit of the second purchaser. If any person has an interest in or claim to the estate which he may enforce, the purchaser cannot be compelled to take the estate, no matter how improbable it is that the claim will be enforced. Cunningham v. Sharp, 11 Humph. (Tenn.) 116; Dobbs v. Xorcross, 24 N. J. Eq. 327; King v. Knapp, 59 N. Y. 462. The purchaser cannot be compelled to com- plete the contract if the boundaries of the premises be involved in doubt or dispute. Voorhees v. De Myer, 3 Sandf. Ch. (N. Y.) 614. 30 Young v. Lillard, 1 A. K. Marsh. (Ky.) 482. But see Hall v. McKee, 147 Ky. 841, 145 S. W. 1129, where it was held that the suit of an adverse claimant, whether maintainable or not, made the title unmarketable. An alleged adverse claim unsustained by record evidence does not make a title doubtful. Allen v. Phillip, 2 Litt. (Ky.) 1. A purchaser may be compelled to take the title if it appears that the adverse claim has been decided, barred or released. Jackson v. Murray, 5 T. B. Mon. (Ky.) 184, 17 Am. Dec. 53. It is not a conclusive objection to the title that a third party has filed a bill 800 MARKETABLE TITLE TO HEAL ESTATE. prove substantial, though there are not sufficient facts in evidence to enable the court to say that the title is in .another, a purchaser will not be held to take it and encounter the hazard of litigation. 31 Of course the title will be held unmarketable where there are two conflicting record titles to the property, 88 or where a record title to the property is outstanding in another. 33 An exception to the rule that a purchaser will not be compelled to take an equitable title has been held to exist when the purchase was under a decree, the purchaser in such a case being compelled to take just such title as the court can give. 84 But such purchaser cannot require against the seller, claiming a right to the estate, but the nature of the adverse claim will be looked into. 1 Sugd. Vend. (8th Am. ed.) 589, citing Osbaldis- ton v. Askew, 1 Russ. 160. Bentley v. Craven, 17 Beav. 204, where the pur- chase money was detained in court until the rights of an adverse claimant could be determined in a suit which was pending. See also Whitaker v. Willis, (Tex. Civ. App.) 146 S. W. 1004. In Francis v. Hazelrig, 1 A. K. Miarsh. ( K y. ) 93, the contract provided that the vendor should convey " a clear and indisputable title." The purchaser contended that the interference of a junior patent with a senior patent rendered the title under the senior patent disputable and cloudy, but the court said: "An indisputable title is one which, according to the literal import of the term, cannot be disputed. It may. perhaps, be said, without a violation of propriety in language, that a title may be disputed wrongfully as well as rightfully, but,the latter is, with- out doubt, the true sense of the contract. A different construction would render it impossible to perform the contract, for there can be no title which may not be wrongfully disputed. It follows, therefore, as the junior title confers no legal right to dispute the title derived under an elder patent, that the latter, notwithstanding the interference, will be, in the true sense of the term, indisputable." The contract had been executed by a conveyance with warranty in this case, but the foregoing observations would apply with equal force where the contract is executory. In Edwards v. Van Bibber, 1 Lri^li (Va.), 183, a vendor was permitted to show that an escheat of the estate in controversy to the Commonwealth for default of heirs of a former owner who had sold the estate but died before conveying it, was unsustained by the farts, and not enforcible by the Commonwealth; and the purchaser was com- pelled to take the title. 11 Speakman v. Fnrepaugh, 44 Pa. St. 373; Herman v. Somers, 158 Pa. St. 424. The mere fact that a third person held titlo to the premises under a -h.-rifTs deed, fair on its face, rendered the title unmarketable. Stack v. Hi.Uy. ].-,! \ViM-. :H7, 138 N. W. 1011. "Reydell v. Reydell, 31 N. Y. Supp. 1. * Darrow v. Cornell, 61 N. Y. Supp. 828. l Sugd. Vend. (8th Am. ed.) 593 (338). Carter v. Morris B. A L. Aaso., 108 La. 143, 32 So. Rep. 473; Wollenberg v. Rose, (Orcg.) 78 Pac. Rep. 751. OF DOUBTFUL TITLES. 801 his vendee to take from him the same title; the reason being that in the latter case the rule caveat emptor, as enforced in judicial sales, does not apply. 35 The purchaser cannot be compelled to take a title which is already in litigation or which will probably involve him in litiga- tion ; he cannot be required to purchase a law suit, 36 It has been held that a pending action, and Us pendens filed, justify the rejec- tion of the title by the purchaser, where the complaint states a good cause of action affecting the land. The purchaser is not required to go outside the complaint and look up the evidence to determine whether the action is maintainable. 37 Upon the same principle, the purchaser cannot be compelled to accept the title, if the premises are in the possession of an adverse claimant. 38 Nor can he be required to accept the title where the vendor has made a second sale of the premises before default on the part of the first purchaser, even though the purchaser at the second sale had notice of the first sale and took subject to the rights of the. first M Powell v. Powell, 6 Madd. 63. 38 Ante, 284. James v. Mayer, 41 La. Ann. 1110, 7 So. Rep. 618; Lyman v. Stroudbaugh, 47 La. Ann. 71, 16 So. Rep. 662; Schwartz v. Woodruff, 132 Mich. 513, 93 N". W. Rep. 1067; Bartlett v. Magee, (Cal.) 45 Pac. Rep. 1029; Bullard v. Bicknell, 49 N. Y. Supp. 666, 26 App. Div. 319; Kopp v. Kopp, 1 N. Y. Supp. 261, 48 Hun, 532. Jamilewyez v. Quagliano, 88 Conn. 60, 89 Atl. 897; Sorge v. Dickie, 199 Mich. 251, 165 N. W. 781, where there was a suit for specific performance pending against the vendor. The purchaser will not be required to take a title dependent upon the question whether a State was estopped from asserting title to the premises. Bodcaw Lumber Co. v. White, 121 La. 715, 46 So. 782. 87 Post, 306. Simon v. Vendeveer, 155 N. Y. 377, 49 N. E. Rep. 1043; Murphy v. Fox, 112 N. Y. Supp. 819, 128 App. Div. 534; Whalen v. Stewart, 108 N. Y. Supp. 355, 123 App. Div. 446. But the complaint must show a good cause of action. Weissbee v. Wallace, 108 N. Y. Supp. 887, 124 App. Div. 382. The Us pendens is no objection to the title if the cause has been settled, or disposed of adversely to the plaintiff. Alpern v. Farrell, 117 N". Y. Supp. 706, 133 App. Div. 278. M Williams v. Carter, 3 Dana (Ky.), 198; Eisler v. Halperin, 89 N. J. L. 278, 981 Atl. 245; Cords v. Goodwin, 173 Cal. 61, 159 Pac. 138; Wilson v. Seybold, 216 Fed. 975; Black v. International Corpn., 264 Pa. 260, 107 Atl. 737. Inability to enter the premises except over the land of another, makes the title unmarketable. Thomas v. Larz, (Iowa) 166 N. W. 287. The pur- chaser cannot be put in default for refusing to close before a tenant in pos- session removes. Engel v. Tate, 203' Mich. 67, 170 N. W. 105. 101 802 MARKETABLE TITLE To REAL ESTATE. purchaser." It has been said that the probability of a law suit is no objection to the title if the suit must inevitably terminate in the purchaser's favor. Thus it has been held that a purchaser may be compelled to accept a conveyance from one who had executed a prior voluntary conveyance of the premises, even though the purchase was made with notice of such prior convey- ance. 40 If there be a reasonable doubt, however, as to whether the prior conveyance was in fact without valuable consideration, it is apprehended that the subsequent purchaser could not be compelled to take the title. Besides the vexation and expense of the suit, the purchaser would nm the risk of being unable to show that the conveyance was voluntary. The probability or possibility of a law suit is of course no objection to the title where the purchaser is or may be let into the possession, and the suit must inevitably terminate in his favor; for there is no title however good that may not be attacked by ill-advised claimants. But it may be doubted whether in any case the purchaser could be compelled to complete the contract if the premises were held by an adverse claimant and a suit by the purchaser to get possession should be necessary. In ejectment the plaintiff must show title in himself, a proceeding which often involves much expense and delay, and there seems to be no reason why this burden should be imposed upon the purchaser. Besides possession is one of the principal elements of a good title, and a vendor who is unable to give it, is unable to perform his contract. The rule that the purchaser cannot be compelled to take an equitable title has been extended to a case in which the legal title was outstanding in a trustee, though the trustee might be com- pelled to convey at any time. 41 We have seen that if the purchaser enter into the contract knowing that the title is in litigation, he cannot make that fact a "Birch v. Cooper, 136 Cal. 63fl, 61) Par. Rep. 420. Bnt see Hoook v. Bow- man, 42 Neb. 87, and Kreihich v. Martz, 110 Mich. 343, where the contrary appears to have been held. -1 Surd. Vend. (8th Am. ed.) 586; Id. ch. 22. Butterfleld v. Heath, 15 Beav. 40*; Humphrey* v. Moses, 2 W. Bl. 1019; Currie v. Nind, 1 Myl. ft Cr. 17. "Murray v. KIHa, 112 Pa. St. 486, 3 All. Rep. 845. OF DOUBTFUL TITLES. 803 ground for rescission. 42 A fortiori he cannot rescind where he has agreed to postpone the execution of the contract until a suit involv- ing the title is determined. 43 Nor can he object that the vendor has only an equitable title, if he buys with knowledge of that fact and the contract does not provide that he shall have the legal title before the time to convey arrives. 44 Where the contract contains no provision as to the kind of title which the purchaser is to receive, and he buys with knowledge of the fact that a squatter is in possession of a part of the premises, it has been held that there is no implied contract to furnish a good marketable title, and that the vendor may compel specific per- formance. In such case parol evidence is admissible to show notice of the squatter's possession at the time of the contract. 45 An objection to the title that an interest in the property is outstanding in others disappears if such others be estopped by their deed from claiming the interest. 46 . The purchaser cannot refuse to complete if the owner of an outstanding interest will join in the deed to him. 47 291. DEFEASIBLE ESTATES. CONTINGENCIES. A purchaser who, under his contract, is entitled to demand a conveyance of an indefeasible estate in fee simple, cannot be required to take an estate defeasible upon the happening of a certain event or upon a certain contingency ; 48 for example, a devise to a woman providing 43 Ante, 85. 43 Hale v. Cravener, 128 111. 408, 21 ST. E. Rep. 534; Holmes v. Richards, 67 Ala. 577. 44 Gray v. Hill, (Mich.) 63 N. W. Rep. 77. 45 Leonard v. Woodruff, (Utah) 65 Pac. Rep. 199. 44 Jacobs v. Fowler, 119 N. Y. Supp. 647, 135 App. Div. 713. 4T Ochs v. Kramer, 32 Ky. L. R. 762, 107 S. W. 260; Furst v. Bohl, 118 N. Y. Supp. 125, 133 App. Div. 627. 48 Van Schaick v. Lese, 66 N. Y. Supp. 64, 31 Misc. 610; Lamprey v. Whitehead, 64 N. J. Eq. 408, 54 Atl. Rep. 803; Richards v. Knight, 64 N. J. Eq. 106, 53 Atl. Rep. 452; Hess v. Bowen, 241 Fed. 659, 154 C. C. A. 217; Lovitt v. Wilson, 114 Me. 143, 95 Atl. 778; Weymouth v. Howe, 167 Wise. 218, 167 N. W. 270; Fullenlove v. Vaughn, 151 Ky. 513, 152 S. W. 570. See Mr. Austin Abbot's note to Moore v. Williams, 23 App. N". Cas. (N. Y.) 416. The liability of an estate to defeat by the birth of issue capable of taking in remainder renders the title doubtful. McPherson v. Smith, 49 Hun (N. Y.), 254, 2 N. Y. Supp. 60; Dole v. Shaw, 282 111. 642, 118 N. E. 1044. The fol- 804 MARKETABLE TITLE TO REAL ESTATE. that title should remain in her only so long as she should live separate from her husband. 49 This is not so much upon the ground that it is doubtful whether the estate will ever become absolute, as for the reason that the purchaser cannot be compelled to take an estate less in value and extent than that for which he bargained. If, however, it be alleged that it is physically impossible that the event defeating the estate should ever transpire, and it is doubtful whether such allegation can be sustained, the title becomes doubt- ful or unmarketable in the technical sense of the term. If it can be shown beyond a doubt that the happening of the event which will defeat the estate is a physical impossibility, no reason is per- ceived why the purchaser should not be compelled to take the title. 50 lowing illustration of this principle is from the opinion of Chancellor WAL- WOBTH in Seaman v. Hicks, ft Paige (N. Y.), 655: "In the ordinary case a base fee, determinable only upon the contingency of a single gentleman, far- advanced in life, afterwards marrying and having issue, most persons might consider the happening of the event which was to divest the estate so im- probable as to render such determinable fee substantially the same as an absolute indefeasible estate of inheritance in fee simple. For it might In- considered as wholly improbable that a bachelor of seventy, who in the prime of life had so far disregarded the teachings of wisdom as well as of nature as to continue in a state of celibacy, would at that advanced age not only be guilty of the extreme folly of contracting matrimony for the first time, but would also procreate heirs to divest the estate determinable upon that event. But certainly no lawyer could for a moment suppose that a vein In-. who had contracted for a good title, was bound to accept an estate which depended upon a contingency of that nature; unless the fact was satisfactorily established that it was physically impossible that the event which was to determine the estate should ever happen." Wright v. Mayer, 62 N. Y. Supp. 410; 47 App. Div. 604. Seaman v. Hicks, ft Paige (N. Y.), 655, 658, dictum. A title derived through a sale in proceedings for a partition, is not rendered unmarketable by the fact that persons not in esae at the time of the sale may come into existence and be entitled to share in the property; as whore lands are devised to the testator's grandchildren, and at the time of a partition of the prop- erty, there is a possibility that grandchildren may be born thereafter who would be entitled to <-OIIH into partition. Wills v. Slade, 6 Ves. 498. The powlbility that a woman 70 years old would have issue is too remote to make the title unmarketable. Bacot v. Fessenden, 115 N. Y. Supp. 698; 130 App. Div. 819; Whitney v. Groo, 40 App. D. C. 496. Especially is this true under statutes which provide that those entitled to a reversion, remainder nr iiilu-ritanre. shall be bond by a judgment in partition. Cheesman v. Thome, 1 Edw. Ch. (N". Y.) 629. OF DOUBTFUL TITLES. 805 If the estate of the vendor could only have arisen upon the hap- pening of a contingency provided for in a deed or will, such as the death of a particular person without lawful issue, the pur- chaser cannot be required to take the title in the absence of evi- dence which satisfactorily establishes the happening of the contingency. 51 The purchaser cannot reject the title if the vendor tenders a deed, or if he claims under a deed, in which are joined as grantors all persons who would take in the event of the happening of the contingency by which the estate would be defeated. 52 292. TITLE DEPENDENT UPON ADVERSE POSSESSION. A purchaser may be compelled to take a title resting upon a hostile, adverse and uninterrupted possession, under color of title which has continued for a length of time sufficient to bar the rights of any possible adverse claimant. 53 There are cases which apparently 51 Chew v. Tome, 93 Md. 244 ; 48 Atl. 701. 52 Williams v. Briggs, 176 N. C. 48; 96 S. E. 643; Heisey v. Hartman, 253 Pa. 359; 98 Atl. 606; Elkins v. Thompson, 155 Ky. 91; 159 S. W. 617. 53 1 Sugd. Vend. (8th Am. ed.) 41, 584; 2 id. 101; Atk. Marketable Titles, 396, 403. See, generally, the cases cited throughout this subdivision. Games v. Bonner, 54 L. J. (N. S.) Ch. 517; Prosser v. Watts, 6 Madd. 59; Cottrell v. Watkins, 1 Beav. 361; Parr v. Lovegrove, 4 Drew. 170; Scott v. Nixon, 3 Dru. & War. 388; Kirkwood v. Lloyd, 12 Ir. Eq. 5S5; Stewart v. Conyngham, 1 Ir. Ch. C. 534; Hyde v. Dallaway, 6 Jur. 119. See, also, Emery v. Gro- cock, 6 Madd. 54; Barnwall v. Harris, 1 Taunt. 430; Causton v. Macklew, 2 Sim. 242; Martin v. Cotter, 3 Jon. & La. T. 496; Maginnis v. Fa'lon, 2 Moll. 566; Bolton v. School Board, L. R., 7 Ch. Div. 766; Hilary v. Waller, 12 Ves. 239; Thompson v. Milliken, 9 Grant Ch. (Can.) 359; Wieland v. Renner, 65 How. Pr. (N. Y.) 245; Meyer v. Boyd, 51 Hun (N. Y.). 291; 4 N. Y. Supp. 328; Ford v. Schlosser, 34 N. Y. Supp. 12; Weil v. Radley, 52 N. Y. Supp. 398; Simis v. M'cElroy, 160 N. Y. 156; 54 1ST. E. Rep. 674; Kahn v. Mount, 61 N". Y. Supp. 358; 46 App. Div. 84; Hammerschlag v. Duryea, 66 N. Y. Supp. 87; 31 Misc. Rep. 678; Ruff v. Gerhartt, 76 N. Y. Supp. 743; 73 App. Div. 245; Forsyth v. Leslie, 77 N. Y. Supp. 826; 74 App. Div. 517; Core V. Wigner, 32 W. Va. 277; 9 S. E. Rep. 36; Hall v. Scott, 90 Ky. 340; 13 S. W. Rep. 249; Woodhead v. Foulds, (Ky.) 12 S. W. Rep. 129; Thacker v. Booth, (Ky.) 6 S. W. Rep. 460; Williams v. Porter, (Ky.) 21 S. W. Rep. 643; Bryan v. Osborne, 61 Ga. 51, dictum. Lurman v. Hubner, 75 Md. 269; 23 Atl. Rep. 646; Foreman v. Wolf, (Md.) 29 Atl. Rep. 837; Erdman v. Corse, 87 Md. 506; 40 Atl. Rep. 107; Gump v. Sibley, 79 Md. 165; 28 Atl. Rep. 977. Upon the general proposition that the Statute of Limitations vests a perfect title in the occupant, see Bicknell v. Comstock, 113 U. S. 149; Leffingwell v. Warren, 2 Black (U. S.), 599.; Croxall v. Sherrard, 5 Wall. (U. S.) 289; 806 MARKETABLE TITLE TO REAL, ESTATE. Dickerson v. Colgrove, 100 U. S. 578; Harpening v. Dutch Church, 16 Pet. (U. S.) 455; Elder v. McCloskey, 70 Fed. Rep. 529; Cox v. Cox, 18 D. C. 1; Conley v. Finn, 171 Mass. 20; 50 N. E. Rep. 460; McNeill v. Fuller, 121 N. C. 209; 28 S. E. Rep. 299. Barnard v. Brown, 112 Mich. 452; 70 N. W. Rep. 1038; Tewksbury v. Howard, 138 Ind. 103; 37 N. E. Rep. 355. Nelson v. Jacobs, 99 Wis. 547; 75 X. W. Rep. 406; Ballon v. Sherwood, 32 Neb. 666; 49 X. W. Rep. 790; Scannell v. Am. Soda F. Co., 161 Mo. 606; 61 S. W. Rep. 889; Fant v. Wright, (Tex. Civ. App.) 61 S. W. Rep. 514; Dallmeyer v. Ferguson, 198 Pa. St. 288; 47 Atl. Rep. 962; Westfall v. Washlagel, 200 Pa. St. 181; 49 Atl. Rep. 941; Miller v. Cramer, 48 S. C. 282; 26 S. E. Rep. 657; Maccaw v. Crawley, 59 S. C. 342; 37 S. E. Rep. 934; Revol v. Stroud- back, 107 La. 295; 31 So. Rep. 665; Abraham v. Mieding, 108 La. 510; 32 So. Rep. 329. In Edwards v. Morris, 1 Ohio, 524, it appeared that a deed in the vendor's chain of title had not been acknowledged or proven, but the court held that possession under the deed having been had for twenty-nine years, the contract should not be rescinded. A defect in the acknowledgment of a deed which has been recorded for forty years, and no title hostile to that derived thereunder has been asserted, does not render the title unmarketable. Bucklen v. Hasterlik. 155 111. 423; 40 N. E. Rep. 561; Kennedy v. Gramling, 33 So. Car. 367; 11 S. E. Rep. 1081. In Gaines v. Jones, 86 Ky. 527; 7 S. W. Rep. 25, the premises had been bought and paid for by a prior purchaser, but by mistake had been omitted from a deed to him. Possession had been held by and under such purchaser for more than the statutory period, and the title was held such as a subsequent purchaser must accept Titles market- able. In the following cases the vendor's title by adverse possession was held free from doubt, and such as the purchaser was bound to accept: Grant v. \\ .-i--i.il. 6 J. J. Marsh. (Ky.) 618, where the vendor had had thirty years' uninterrupted possession. Abrams v. Rhoner, 44 Hun (X. Y.), 507, ninety years. Lyles v. Kirkpatrick, 9 S. C. 265, where it was held that possession under a deed for more than ten years, the statutory period of limitation, cured the objection that a deed, under which the vendor held, was invalid for want of a subscribing witness. Edwtards v. MIorris, 1 Ohio, 524, forty years. Vance v. House, 5 B. Mon. (Ky.) 537, thirty years. An adverse, uninterrupted possession for more than twenty years, without evidence that the case was within any of the exceptions of the Statute of Limitations, makes the title marketable. Allen v. Phillips, 2 Litt. (Ky.) 1; McCann v. Edwards, 6 B. Mon. (Ky.) 208, thirty years. A minute on the books of town trustees, showing a prior sale of a lot, is no objection, after the lapse of many years, to the title, in the absence of anything to show that the trustees had ever conveyed the lot to their vendee. Morris v. McMillen, 3 A. K. Marsh. (Ky.) !'. -.--, i: for BMBJ \..i T - M- i. r a cj,-> .!. M. < M.-iit.ilh c!.--t r<'\>"). i T. a:.-- such a title as a purchaser will be required to take. Wade v. Greenwood, 2 Rob. (Vn.) 474; 40 Am. Dec. 759. Per cwriam. "It has been objected that a purchaser should not be required to take a title which has been made good by the statute. We can nee no force in the objection. So that the title be good, it matters not how it ban been made HO." Tomlinson v. Savage, 6 Ireil. Kq. (N. C.) 430, 435. In Bohm v. Fay, 17 Abb. N. Cu. (N. Y.) 175, there was a missing deed in the chain of title, but there had been an adverse, unin- OF DOUBTFUL TITLES. 807 terrupted possession for fifty-five years, and no claim to the land had ever been made by any person. The court presumed that the missing deed had been actually executed and delivered, but had been lost, and the title was held marketable. In 1821 the record title of certain premises was in the executors of B., with power of sale. T. entered into possession of the premises that year, and he and his assigns held possession for more than fifty years. In a suit for par- tition of B.'s estate among his heirs, in 1831, no notice was taken of these premises. Held, that a sale and conveyance by the executors of B. to T. must be presumed, 'and that the title of one claiming through T. was market- able. Ottinger v. Strasburger, 33 Hun (N. Y.), 466. See, also, Shober v. Dutton, 6 Phila. (Pa.) 185; Grady v. Ward, 20 Barb. (1ST. Y.) 543; O'Connor v. Huggins, 1 N. Y. Supp. 377. Recent Cases. Jackson v. Creek, 47 Ind. App. 541; 94 N. E. 416; Wester- field v. Cohen, 130 La. 533; 58 So. 175; Dickerson v. Trustees, 105 MA. 638; 66 Atl. 494; Bleman v. Wagner, 74 Md. 478; 22 Atl. 72; Herbold v. Bld'g. Asso., 113 Md. 156; 77 Atl. 122; Safe Dep. & Tr. Co. v. Marburg, 110 Md. 410; 72 Atl. 839; Potomac Lodge v. Miller, 118 Md. 405; 84 Atl. 554; Novak v. Orphans' Home, 123 Md. 161; 90 Atl. 997; Stewart v. Kreuzer, 127 Md. 1; 95 Atl. 1052; Goldman v. Miles, 129 M'd. 180; 98 Atl. 531; Arey v. Baer, 112 Md. 541; 76 Atl. 843; Aroian v. Fairbanks, 216 Mass. 215; 103 N. E. 629; Shanahan v. Chandler, 218 Mass. 441; 105 N. E. 1002; Long v. Coal & Iron Co., 233 Mo. 713; 136 S. W. 673; Ocean City Asso. v. Creswell, 71 1ST. J. Eq. 292; 65 Atl. 454; Freedman v. Oppenheim, 187 N. Y. 101; 79 N. E. 841; 116 Am. St. Eep. 595; Wormser v. Gehri, 106 N. Y. Supp. 295; Taub v. Spector, 108 N. Y. Supp. 723; 124 App. Div. 158; Clark v. Woolport, 112 N". Y. Supp. 547; 128 App. Div. 203; D. W. Alderman Co. v. M'cKnight, 95 S. C. 245; 78 S. E. 982; Clark v. Asbury, (Tex. Civ. App.) 134 S. W. 286; Summers v. Hively, 78 W. Va. 53; 88 S. E. 608. Title dependent upon adverse possession of part of an abandoned road for more than 50 years, is marketable. Pooler v. Sammet, 115 N. Y. Supp. 578; 130 App. Div. 650. Technical objections to the title shown by the abstract are cured by long adverse possession of the vendor. Cunningham v. Friendly, 70 Oreg. 222 ; 39 Pac. 928. Titles not marketable. In the following cases, the evidence was held in- sufficient to show that the title by adverse possession was free from doubt: Scott v. Simpson, 11 Heisk. 310; Beckwith v. Kouns, 6 B. Mon. (Ky.) 222; Lewis v. Herndom, 3 Litt. (Ky.) 358; 14 Am. Dec. 68; Hightower v. Smith, 5 J. J. Marsh. (Ky.) 542; Shriver v. Shriver, 86 N. Y. 575; Schultze v. Rose, 65 How. Pr. (N.Y.) 75; Griffin v. Cunningham, 19 1 Grat. (Va.) 571. A trustee cannot acquire title to the trust subject under the Statute of Limita- tions, because his possession cannot be adverse to that of the cestui que trust. 2 Sugd. Vend. (8th Am. ed.) 106, n. and cases cited. Possession for the statutory period under a deed which is insufficiently acknowledged and re- corded, to bar a contingent right of dower, will not perfect the title of the grantee. McGuire v. Bowman, 6 Bush (Ky. ), 550. In Brown v. Cannon, 5 Gil. (111.) 182, the court, while admitting that a purchaser might be com- pelled to take a title by adverse possession in a case free from doubt, observed : 808 MARKETABLE TITLE TO HEAL ESTATE. deny this proposition, 64 but in most of them it will be found that the facts tending to establish the adverse possession for the re- quired length of time were considered by the court too doubtful to support a decree against tTie purchaser. If the facts upon which such a title rests be clear and undisputed, the title stands upon the same ground as any other title founded upon matters in pais.** But if the facts alleged be disputed and doubtful, specific performance will be denied under the rule that relieves the purchaser wherever he may, in the future, be compelled to resort to parol testimony to remove doubts about the title. 6 * If, however, the proof of adverse possession for the statutory period is so clear that a court would be bound to direct a jury to find for "Of all known titles to land beyond a mere naked possession, which are pritna facie good, there are, perhaps, none recognized by law more doubtful and uncertain than those depending for their validity upon an adverse posses- sion under a statute of limitations." And in the following cases of doubtful questions of law applicable to title by adverse possession, the title was held unmarketable: Whether the words "other charges," in a statute providing that ground rents, annuities and "other charges" should be presumed to be satisfied after a certain length of time, included mortgages. Pratt v. Eby, 67 Pa. St. 390. Whether a statute providing that a trust for the benefit of creditors shall be deemed discharged after the lapse of twenty-five years, operated retrospectively. McCahill v. Hamilton, 20 Hun (X. Y.), 388. M Eyton v. Dickcn, 4 Price Ex. 303; Tevis v. Richardson, 7 B. Mon. (Ky.) 654; Mott v. Mott, 08 N. V. 246, scmblc; Hartley v. James, 50 N. Y. 38, criticised in Ottingpr v. Strasburger, 33 Hun (X. Y.), 466, 469; Chapman v. Lee, 55 Ala. 616; McLaughlin v. Brown, (Tex. Civ. App.) 126 S. W. 292. Thus, in Duvall v. Parker, 2 Duv. (Ky.) 182, it was held that the pur- chaser muxt take a title dependent on thirty years' adverse possession, there being, according to the evidence in that case, not the remotest probability that he would ever be disturbed by an adverse claimant. "2 Beach Mod. Eq. Jur. $ 60*. "The only reason, if any, why a title by adverse poxsewiion itt not marketable would be because its validity is a ques- tion of evidence rather than of law." Rawle Covt. (5th ed.) 8 56. Xoyes T. Johnson, 139 Maaa. 436; 31 X. E. Rep. 767: McCabe v. Kenny, 52 Hun (X. Y.), 514; 5 X. Y. Supp. 678; Bogga v. Bodkin, 32 W. Va. 566; 9 S. E. Rep. 891; Heller v. Cohen, 154 X. Y. 299; 48 X. E. Rep. 527; McAllister v. Harmon, 101 Va. 17; 42 S. E. Rep. 920; A. I kin- v. Gillespie, (Tex. Civ. App.) 180 S. W. 275; Sulk v. Tumulty, 77 X. J. Eq. 97; 75 Atl. 757. Titles by advertw pottHeiwion are in dixfavor except in the closest and moat indis- putable case*. Lincoln Sav. Bank v. Schneider, 174 X. Y. Supp. 529; 105 Misc. Rep. 530; Crocker Pt. Asso. v. Gouraud, 224 X. Y. 343; 102 X. E. 737. OF DOUBTFUL TITLES. 809 the purchaser if sued in ejectment, the title must be held to be marketable. 57 In titles founded on the Statute of Limitations the burden is on the vendor to show, (1) that the possession has been open, hostile, adverse, notorious, and uninterrupted for the statutory period; (2) that there is no saving to any person on account of personal disabilities; and (3) it must appear that in all human probability the purchaser will have the means at hand to estab- lish his title by adverse possession if it should be attacked by a third person in the future. 58 True, as has been seen, it is a rule that a purchaser cannot be compelled to take a title which, if attacked in the remote future, he can only sustain by the testi- mony of witnesses, since these may, in the meanwhile, have be- come unavailable to him by death or disqualification. But this rule must be given a reasonable construction, else it would render unmarketable some titles of the most satisfactory kind. Thus, title by descent is, as a general rule, to be established only by the testimony of witnesses, 59 and not by documentary or record evi- dence, yet no one for this reason ever objects that the title is unmarketable if the means of establishing the fact of inheritance exists. The same reasoning applies with equal force to titles under the 'Statute of Limitations. There must be some present ground to apprehend that the title will be disputed, and the means of sustaining it unavailable to the purchaser. 60 "Ottinger v. Strasburger, 33 Hun (N". Y.), 466; Shriver v. Shriver, 86 N. Y. 575; Adams v. Rhoner, 44 Hun (N. Y.), 507; Hagan v. Drucker, 85 N. Y. Supp. 601; 90 App. Div. 28; Smith v. Riordan, (Mo. App.) 213 S. W. 61. 56 Heller v. Cohen, 154 N. Y. 299; 48 N". E. Rep. 527; Ruess v. Ewen, 54 N. Y. Supp. 357; 34 App. Div. 484; Gorman v. Gorman, 57 N". Y. Supp. 1069; 40 App. Div. 225; Roos v. Thigpen, (Tex. Civ. App.) 140 S. W. 1180; Cline v. Booty, (Tex. Civ. App.) 175 S. W. 1081. The purchaser's contention that there can be no adverse possession by a tenant in common against his co-tenant, cannot be sustained. Pope v. Thrall, 68 N. Y. Supp. 137; 33 Misc. Rep. 44. 09 Affidavits of witnesses as to the fact of inheritance are sometimes taken and spread upon the public records; but these, it is obvious, are mere hear- say and inadmissible as evidence in the courts, and are not, strictly speaking " record " evidence of title. See Warvelle Abstracts, 369. "Eberhardt v. Mller, 71 111. App. 215; Hollifield v. Landrum (Tex. Civ. App.), 71 S. W. Rep. 979, citing the text. 102 810 MARKETABLE TITLE TO HEAL ESTATE. The purchaser should not be put in default until he has had a reasonable time to examine the evidence relied on in support of the title by adverse possession. 61 The possession of the purchaser is the prolongation or continua- tion of that of the vendor, and if both together amount to a good prescriptive right, the purchaser may be compelled to complete the contract.* 2 It seems that if, by the express terms of the con- tract, the purchaser is entitled to demand a "good title of record," 63 or that the vendor must furnish an abstract showing a good record title, 64 the purchaser cannot be compelled to accept a title dependent upon adverse possession. And it has been de- cided that adverse possession can never ripen into a marketable title, unless held under some assurance purporting to convey a "Crocker Pt. Asso'n. v. Gouraud, 224 N. Y. 662; 120 N. E. 737. "McLaren v. Irvin, 63 Ga. 275; Miller v. Cramer, 48 S. C. 282; 26 S. E. Rep. 657. Ante, 6. Page v. Greely, 75 111. 400; Noyes v. Johnson, 139 Mass. 436; 31 N. E. Rep. 767; Cherry v. Davis, 59 Ga. 454, acmb'lc; Payne v. Markle, 89 III. 66, where the contract called for a " perfect chain of title." In California it seems that the purchaser cannot be compelled to take a title dependent upon the Statute of Limitations, though the contract does not expressly pro- vide for a "good title of record." It has been held in that State that the purchaser is entitled to a title "fairly deducible of record" (Turner v. MrDonald, 76 Cal. ISO; 18 Pac. Rep. 262), and that, therefore, a title under the statute ia not sufficient. McCroskey v. Ladd, (Cal.) 28 Pac. Rep. 216; Benson v. Shotwell, 87 Cal. 56; 25 Pac. Rep. 249; Gwin v. Calegaris, 130 Cal. 384; 73 Pac. 851, where the agreement was that the title should be "satisfactory" to the purchaser. An agreement by the vendor to furnish a " good deed " to the property does not require him to furnish an abstract showing a record title thereto. Title by adverse possession will be sufficient. Clark v. Asbury, (Tex. Civ. App.) 134 S. W. 286. "Hennig v. Smith, 151 N. Y. Supp. 444; Friend v. Mahin, 202 111. App. 40; Mays v. Blair, 120 Ark. 69; 179 S. W. 331; Bradway v. Miller, 200 Mich. 648: 167 N. W. 15; Danzer v. Moerschel, (Mo.) 214 S. W. 849; St. Hair v. Hpllwtp, 173 Mo. App. 600; 159 S. W. 17; Ives v. Bank, (Mo. App.) ]H S. \V. 23; Bruce v. Wolfe, 102 Mo. App. 389; 76 S. W. 724; McLane v. Petty, (Tex. Civ. App.) 150 S. W. 891; Nicholson v. Lieber, (Tex. Civ. App.') 1.'>.1 S. W. 641; Wright v. Glass, (Tex. Civ. App.) 174 S. W. 717; Cline v. Booty. (Tex. Civ. App.) 175 S. W. 1081; Adkins v. Gillespie, (Tex. Civ. App.) 180 8. W. 275. Where the vendor is to furnish an abstract showing a merchantable till,-, an abstract -ln>\vin^ by affidavits only that the otitMtanilin;r title to tin- premise* is barred by adverse possession is in-utli- cu-nt. H-.l,r v. Sims, PI Kan. 757: 139 Pac. 371; 93 Kan. 213; 144 Pac, 237, citing Linscott v. Mozeman, 84 Kan. 541; 114 Pac. 1088; Van Gundy v. OF DOUBTFUL TITLES. 811 fee simple, or other estate equal in quantity to that which the vendor undertakes to sell. 65 This depends upon the familiar rule that the mere naked possession of a trespasser without color of title, no matter how long continued, will not bar the entry of the true owner. If the title of the party in possession has ripened under the Statute of Limitations, it will not be rendered doubtful or un- marketable by a subsequent statute extending the period of limi- tation. 66 A title dependent upon adverse possession against a remainderman is of course unmarketable, since his right of action does not accrue until the precedent estate determines. 67 If the vendor's title be perfected by lapse of time pending a suit for rescission or specific performance, the purchaser must accept it, 68 unless time was material to the purchaser or was of the essence of the contract. 69 A title founded upon adverse possession will not be marketable unless sufficient time has elapsed to bar the rights of any person Shewey, 90 Kan. 253; 133 Pac. 720; 47 L. R. A. (N. S.) 645. If the con- tract requires the vendor to convey a perfect record title shown by abstract, the purchaser cannot be compelled to take a title resting upon adverse possession. But if the agreement be only to execute a " good deed," or a " warranty deed," the purchaser may be required to take such a title. Atte- bury v. Blair, 244 111. 363; 91 N. E. 475; 135 Am. St. Rep. 342; Bear v. Fletcher, 252 111. 206; 96 N. E. 997; Clark v. Asbury, (Tex. Civ. App.) 134 S. W. 286. Unless the contract calls for a record title, or an abstract show- ing title, a good title by adverse possession under the statute of limitations is sufficient. Wiemann v. Steffen, 186 Mo. App. 584; 172 S. W. 472. In the case of Jamison v. Van Auken, (Mo.) 210 S. W. 404, it is argued with much force that a title by adverse possession, free from doubt as to the facts on which it depends, satisfies the requirement that the abstract shall show a " good merchantable title." As was there pointed out, an abstract may show perfect title in one who really has no interest in the property; and one may have a perfect title that is not disclosed by documentary evidence of any kind. 85 Cunningham v. Sharp, 11 Humph. (Tenn.) 116; Chapman v. Lee. 55 Ala. 616; Knedler v. Lang, 63 Hun (N. Y.), 48; affd'd., 137 N. Y. 589. * Shriver v. Shriver, 86 N. Y. 575. 87 2 Sugd. Vend. (8th Am. ed.) 104; Wms. Real Prop. (Am. ed. 1886) 450 (355). ^Wickliffe v. Lee, 6 B. Mon. (Ky.) 543; Peers v. Barnett, 12 Grat. (Va.) 410. 09 Post, ch. 32. Costs will be decreed against the vendor in such case. Peers v. Barnett, 12 Gratt. (Va.) 410. 812 MAKKETABLE TITLE TO REAL, ESTATE. who was under disabilities, such as infancy or coverture, when the cause of action accrued. 70 Generally the Statutes of Limita- tions in the several States specify a time within which a person whose disabilities have been removed, must assert his rights, and in some of the States it is provided that in no case, including such additional period, shall the period of limitation exceed a specified number of years. Under such a statute it has been held that the possibility of a claim by a person under disabilities could not render the title doubtful where the extreme period of limitation had elapsed. 71 If it may be fairly inferred from the abstract that a defect arising before the period at which the abstract commences, exists, the purchaser may require that the title before that time shall be shown ; but if that be not within the vendor's power the title will not be held bad upon mere suspicions." If the vendor set up title under the Statute of Limitations, the burden will be upon him to show that the title is good. 73 It will be sufficient, it is apprehended, for him to show an exclusive, adverse, notorious, uninterrupted and hostile possession under color of title for the statutory period, including any saving in "Brown v. Cannon, 5 Gil. (111.) 174; Tevis v. Richardson, 7 B. Men. (Ky.) 654; Simis v. McElroy, 160 N. Y. 156; 54 N. E. Rep. 674; Ford v. Wright, 114 Mich. 122; 72 N. W. Rep. 197; Baumeiater v. Silver, 98 Md. 418; 56 Atl. 825; Wilhelm v. Federgreen, 38 X. Y. Supp. 8; 2 App. Div. 483; Fulir v. Cronin, 81 N. Y. Supp. 536; 82 App. Div. 210; Bess-Alar Realty Co. v. Capell, 164 N. Y. Supp. 803; Hummer v. Buerk, 90 N. J. Kq. 97; 106 Atl. 141; Lalor v. Tucker, 114 X. Y. Supp. 403; 130 App. Div. 688; Alpha Ccm. Co. v. Shirk, 227 Fed. 966; 142 C. C. A. 424. The running of tlio statute ift not interrupted by the death of the possible claimant and the infancy of his heirs. Lewine v. Gerardo, 112 X. Y. Supp. 192. "Pratt v. Eby, 67 Pa. St. 396; Shober v. Dutton, 6 Phila. (Pa.) 18.6; Ot- tinger v. Strasburger, 33 Hun (X. Y.), 466; N. Y. Steam Co. v. Stern, 46 Hun (N. Y.), 206; Messinger v. Foster, 101 X. Y. Supp. 387; 115 App. Div. 689. rt l Sugd. Vend. (8th Am. ed.) 552; Seymour v. Delancey, Hopk. Hi. I V. V.) 436; 14 Am. Dec. 552. " Luckett v. Williamson, 31 Mo. 54, the court saying: "A party making out a title under the Statute of Limitations must show it to be good, that the court may determine whether it shall be received. It is not for the purchaser to contest the validity of such a title with the vendor, as he may be wholly ignorant of the state of it." Knedler v. Lang. (>.'{ Hun (N. Y.), 48; 17 N. Y. Supp. 443; Wilhelm v. Federgreen, 38 N. Y. Supp. 8; 2 App. Div. 483. OF DOUBTFUL TITLES. 813 favor of persons under disabilities. If it be doubtful whether there are any such persons, and he be unable to show that there are none such, the title will be deemed unmarketable. 74 He must be able to show, also, that there are no persons in remainder who might claim the estate, since the Statute of Limitations does not begin to run, as to them, until the determination of the precedent particular estate. 75 It has been held, however, that if the vendor shows a title prima facie good under the Statute of Limitations, the burden will devolve upon the purchaser to show facts which would prevent the running of the statute. 76 In some jurisdictions a vendor, relying on a title under the Statute of Limitations, will be permitted to join the persons hold- ing the apparent legal title as parties defendant in his suit against the purchaser for specific performance, and have their claims de- termined. 77 If this practice be founded upon sound principles, no reason is perceived why the vendor should not be allowed to bring in such persons and adjudicate their rights in any case in which it is objected that the title is doubtful, at least, in any case in which he would have a right to maintain a bill against such per- sons to quiet his title. As a general rule any objection to the title which is cured by the Statute of Limitations other than that applicable to possessory actions, or by lapse of time, constitutes no ground upon which the purchaser can refuse to complete the contract, if the case admit of no reasonable doubt as to the application of the bar. Thus the existence of a prior executory contract for the sale of the premises, the benefit of which had passed to an assignee in bankruptcy, was 74 Brown v. Cannon, 5 Gil. (111.) 174. But see Day v. Kingsland, 57 N". J. Eq. 134; 41 Atl. 99, where the facts were held sufficient to throw the burden of proof in that respect upon the purchaser. In Seymour v. Delancey, Hopk. Ch. (X. Y.) 436 (495) ; 14 Am. Dec. 552, it was held that if a title derived under a person alleged to have died without heirs, be clearly adverse for a period of twenty-five years, it will not be rendered unmarketable by the possi- bility of an escheat of said person's estate or of his having left heirs who are under disabilities. "Simis v. McElroy, 160 N. Y. 156; 54 N. E. Rep. 674. 78 Phillips v. Day, 82 Cal. 24; 22 Pac. Rep. 976, citing Shriver v. Shriver, 86 N. Y. 575; e. g., persons under disabilities. Warne v. Greenbaum, (N. J. Eq.) 101 Ail. 568. "Duvall v. Parker, 2 Duv. (Ky.) 182. Ante, p. 787. 814 MARKETABLE TITLE TO REAL ESTATE. held no valid objection to the title, the right of the assignee to enforce the contract having become barred by lapse of time. 78 The purchaser may be required to take a title dependent upon the Statute of Limitations, though the vendor did not inform him, at the time of the contract, of the character of the title, and fur- nish him with proof of its sufficiency. 79 293. PRESUMPTIONS FROM LAPSE OF TIME. Independently of the Statute of Limitations, possession by the vendor and his predecessors in title, for a great length of time has, in some cases, been held to raise a conclusive presumption of a grant or convey- ance, and to remove any doubt or uncertainty as to the title which might arise from the inability of the vendor to show such a grant, or to supply a missing link in the record chain of title. 80 There n Holmes v. Richards, 67 Ala. 577. "Kahn v. -Mount, 61 N. Y. Supp. 358; 46 App. Div. 84. "English cases cited, ante, p. 805, note 53. 1 Sugd. Vend. (8th Am. ed.) 41, 584; 2 id. 101; Atk. Mark. Titles, 396, 403. O'Connor v, Hudgins, 113 N. Y. 511, 521; 21 N. E. Rep. 184. Brassfield v. Walker, 7 B. Mon. (Ky.) 06; Logan v. Bull, 78 Ky. 607, 614. To make good a title to the residue of an old term, mesne assignments which cannot be produced will be presumed to exist. White v. Foljambe, 11 Ves. 344. A title may be good though there are no deeds, but there must have been such a long uninterrupted pos- session, enjoyment and dealing with the property as to afford a reasonable presumption that there is an absolute title in fee simple. 1 Sugd. Vend. (8th Am. ed.) 41; 2 id. 101. The court will presume that the wives of grantors in ancient deeds those more than thirty years old are dead, and the property is free from their claims. Jarboe v. MrAtt-e. 7 11. M parties other than those through whom the vendor claimed title, and there was no evidence that the title acquired under B.'s conveyance in 1771 had ever passed back to him, or vested in any other of the vendor's predecessors in title But those under whom the vendor claimed had been in possession since 1797, and none of the grantees named in the deed of 1771 had ever been in possession of, or made any claim to, the premises, and no conveyance by them to any person had I-VIT IMM-H found. Held, that the title of the vendor was marketable, it being conclusively presumed that the grantees in the deed of 1771 had roconveyed to B. before he conveyed in 1797, or that the conveyance of 1771 had, for some reason, never taken effect. OF DOUBTFUL TITLES. 815 have been cases, also, in which the courts have held that rights of third persons which, if asserted in due season, might have raised insuperable objections to the sufficiency of the title, but which have been lost by lapse of time, furnish no ground on which to hold the title unmarketable. 81 And a purchaser has in some cases been compelled to take a title dependent for its validity upon a presumption of the death of a person interested in the estate, arising from such person's absence for many years without having been heard from in the meanwhile. But such absence must have continued for a length of time sufficient to remove any doubt that the absentee is dead. 82 And it is apprehended that the circum- 81 A. S. Abell Co. v. Firemen's Insurance Co., 93 Md. 596 ; 49 Atl. 334. In this case it appeared that a leasehold interest, under a lease for 99 years expiring in 1870 but renewable during the term, was sold under decree in a suit for partition in 1852, but the sale was void as to the one-fourth interest of a person who had not been made a party to the proceeding. In 1887, after the expiration of the lease, the purchaser at the partition sale pro- cured a renewal from the owner of the fee and in 1897 he purchased the fee. Afterwards he contracted to sell the 'property, but it was objected against his title that, by the law of the State, the lessor who forfeits his right to renew by failure to renew during the term is entitled to relief in equity against the forfeiture and hence that the owner of the one-fourth interest in the lease, which had been illegally sold at the partition sale in 1852, not being bound by that sale, was entitled in equity to relief against the for- feiture, and to demand a renewal of the lase. But it appearing that such owner had left the state long before the sale; that he had never made a claim to any interest in the lease; that he died in 1853, the year after the sale; that hia heirs never recognized their liability to pay rent to the owner of the fee; and that more than thirty years had elapsed since their right to relief in equity against the forfeiture of the privilege of renewing the lease had accrued, without any assertion of that right on their part, the court held that if they were now to claim that right they would not be entitled to a hearing, and hence that the purchaser's objection to the title could not be sustained. 82 PBESUMPTIONS OF DEATH, ETC. Titles not marketable. Whether a cer- tain person having an interest in the premises, who had disappeared and had not been heard from for twenty-four years, was dead, unmarried, without issue and intestate. Vought v. Williams, 120 N. Y. 253; 24 1ST. E. Rep. 195; 8 L. R. A. 591; 17 Am. St. Rep. 634. Seven years, 'McDermott v. McDermott, 3 Abb. Pr. (N. S.) (N. Y.) 451; Trimmer v. Gorman, 129 N. C. 161; 39 S. E. Rep. 804. Thirty years, Dworsky v. Arndtstein, 51 N. Y. Supp. 597; 29 App. Div. 274. Fourteen years, Fowler v. Manheimer, 75 N. Y. 17; 70 App. Div. 56. About twenty years, Cerf v. Diener, 210 N. Y. 156; 104 N". E. 126. Thirty-five years, Chew v. Tome, 93' 'Mid. 244; 48 Atl. 701. Whether certain 816 MARKETABLE TITLE TO REAL ESTATE. stances must be such as to show, beyond a reasonable doubt, that he died unmarried, intestate and without issue. Generally it may be said that wherever a sufficient length of time has elapsed to raise a conclusive presiimption of the existence of any fact, a title dependent upon that fact will be deemed marketable. 83 Thus, under the rule that ancient deeds coming from the proper custody persons were the only heirs of a decedent. Walton v. Meeks, 41 Hun (X. Y.), 311. A title founded upon a decree in a suit for specific performance against the heirs of a vendor, is unmarketable when it appears that one of the heirs, a married woman, not a party to the suit, was dead when the decree was made. The court will not presume that she died intestate and without issue, and that her interest vested in the other heir. Hays v. Tribble, 3 B. Alun. (Ky.) 106. Titles held marketable. Whether a certain person having an interest in the premises, who had disappeared and had not been heard from for more than forty years, had died, unmarried, without issue and intestate. Ferry v. Sampson, 112 N. Y. 415; 20 X. E. Rep. 387; McComb v. Wright, 5 Johns. Ch. (X. Y.) 263; Demarest v. Friedman, 70 N. Y. Supp. 816; 61 App. Div. 576; Day v. Kingsland, 57 N. J. Eq. 134; 41 Atl. 99. See, also, Burton v. Perry, (111.) 34 X. E. Rep. 60; Hitt v. Campbell, (Ky.) 114 S. W. 7$5. Whether the facts in a certain case were sufficient to sustain a title by escheat for want of heirs. In re Trustees X. Y. P. E. Pub. School, 31 X. Y. 574, 587. In Meyer v. Madreperla, (N. J. L.), 53 Atl. 477, the pur- chaser rejected the title offered and sued to recover his deposit. The objection to the title was an outstanding interest in a sailor who left his home in 1879 and had not been heard from for twenty years. It was held, under a N'ew Jersey statute providing that a person absenting himself and not heard from for seven years, must be presumed to be dead, that the objection to the title was untenable. The statute was held to raise a conclusive pre- sumption of the death of the absentee. The court said that this presump- tion was accompanied by another, namely, that he died without lawful issue. The questions of marriage and intestacy were not considered. In Cambrelleng v. Purton, 125 X. Y. 610, 26 X. E. Rep. 907, the purchaser did not dispute the presumption of the death of the absentee, but contended that there was no presumption that he died unmarried and without issue before the death of his father, whose estate, embracing the premises sold, was partitioned after publication of notice against the absentee. The evidence was thought sufficient to justify both presumptions. Forsyth v. Leslie, 77 X. Y. Supp. 826; 74 App. Div. 517. In Lyman v. Gedney, 114 111. 388; 20 X. E. Rep. 282, the grantors, in a conveyance of property which belonged to a partnership, were, after the lapse of forty yearn, presumed to have been the persons composing the firm, the conveyance itelf being silent upon that point. Port Jefferson Realty Co. v. Woodhull, 112 X. Y. Supp. 678; 128 App. Div. 188, in which case the fact that nothing had been done in a widow's suit for dower during twenty years raised the presumption that she waa dead, or had been settled with. OF DOUBTFUL TITLES. 817 require no proof, a title thence derived could not, it is appre- hended, be disputed upon the ground that the deeds are not shown to have been duly executed. To a certain extent, every title depends upon rebuttable pre- sumptions. It has already been observed that when the vendor shows a record of documentary title in himself, the existence of all matters in pais necessary to the validity of that title, such as the competency of grantors through whom, and the bona fides of conveyances through which, the title is derived, will be presumed, until the purchaser shows that there is ground for reasonable doubt in respect to any such matter. 8 * If this were not true, and a vendor could be required to show that everything which could possibly invalidate his title, has no existence in fact, there would, practically be no such thing as specific performance at the suit of the vendor; he would be required to prove an infinite number of negatives, a thing as impracticable as it would be unreasonable. 294. TITLE AS AFFECTED BY NOTICE. As a general rule a purchaser cannot be compelled to perform the contract when the vendor's title depends upon a question of notice of the rights of third parties. 85 Thus, though a purchaser with notice, it has been held, may safely buy from a purchaser without notice, he will not be compelled to take the title, as he would incur the risk of notice to his vendor being proved. 86 But the mere liability of a deed 84 Ante, 289. Braun v. Vollmer, 85 N". Y. Supp. 319. 85 Questions of Notice. In the following cases titles dependent upon the existence of notice of the rights of third persons were held unmarketable. Whether a certain person through whom the vendor claimed, was a purchaser without notice of the equitable rights of a stranger in the premises, under a- contract of sale: Morris v. McMiillen, 3 A. K. Marsh. (Ky. ) 565. Whether a grantee of lands took with notice of certain liens upon the premisesi: Freer v. Hesse, 4 DeG., M. & G. 495. Whether a purchaser without notice under a foreclosure sale, was affected by notice to the plaintiff in the fore- closure suit: Wagner v. Hodge, 34 Hun (N. Y.), 524. Whether a subsequent purchaser had notice of a prior unrecorded deed of the premises: Speakman v. Forepaugh, 44 Pa. St. 363. 88 1 Sugd. Vend. (8th Am. ed.) 590, 601. Freer v. Hesse, 4 De G., M. & G. 495. In Bott v. Malloy, 151 Mass. 477; 25 1ST. E. Rep. 17, suggestions of a latent trust affecting the premises in the hands of the vendor were held in- sufficient to render the title doubtful, in view of a statute declaring trusts invalid as against a purchaser without notice. 103 818 .MARKETABLE TITLE TO REAL ESTATE. in the vendor's chain of title to be attacked as having been executed under circumstances that would render it invalid, does not render the title doubtful, if the purchaser be such in good faith, for value, and without notice of the invalidity of the deed. 87 We have al- ready seen that a doubt as to the title resting not on proof or pre- sumption, but on a mere suspicion of mala fides, will not condemn the title as unmarketable. 88 295. BURDEN OF PROOF. Inasmuch as the purchaser may suffer a heavy loss if compelled to take a doubtful title, and the vendor can suffer only the temporary inconvenience of delay if his title be good and the purchaser be relieved, the inclination of the court is in favor of the purchaser, and the burden devolves upon the vendor to show a title free from all reasonable doubt. 89 This means, it is apprehended, no more than that the vendor must show in the first instance a title free from doubt so far as dis- closed by the public records, or the instruments which evidence the title. The competency of the maker of every deed or will in the chain of title is necessary to the validity of that title, but it is plain that the vendor cannot be required to establish such com- petency affirmatively before it is questioned by the purchaser. The same observation applies to other matters in pai$ affecting the validity of the title, except, it is presumed, that wherever a break occurs in the record chain of title, such as would be caused by descent, or by a parol partition at common law, the vendor must show facts sufficient to supply the breach. The abstract should "Levy v. Iroquois Building Co., (Md.) 30 Atl. Rep. 707. The fact that a prior grantee of the premises claims that a deed thereof had been obtained from him by fraud, he having waited more than six years without making any effort to recover the land, does not render the title unmarketable. First Af. M. E. Church v. Brown, 147 Mass. 296; 17 N. E. Rep. 549. Ante, 5 285. Prop. VI. "Burroughs v. Oakley, 3 Swanst. 159; Hendricks v. Gillespie, 25 Grat. (Va.) 181, 197, citing Sturtevant v. Jaques, 14 Allen (Mass.), 523; Rich- mond v. Gray, 3 Allen (Mass.), 25 and Griffin v. Cunningham. 10 Grat. (Va.) 571; McAllister v. Harmon, 101 Va. 17; 42 8. E. Rep. 920; Upton v. Maurice (Tex. Civ. App.), 34 S. W. Rep. 642. In Espy v. Anderson, 14 Pa, St. 308, it was held that it was the purchaser's business to show that the title was doubtful. He should at least be required to point out in what respect or particulars the title i* doubtful, leaving to the vendor the burden of remov- ing the doubt. OF DOUBTFUL TITLES. 819 contain affidavits showing the essential facts. But after the ven- dor has shown a title presumptively good, the burden devolves on the purchaser to show wherein it is bad or doubtful, 90 and to prove the facts whereon the doubtfulness of the title depends. 91 And there are cases which go farther and hold that when the purchaser enters into a contract for the sale of lands in which the ownership of the vendor is assumed, and agrees to pay the purchase money, but does not require the vendor to show a good title, the general rule is that the burden is on the purchaser to show defects in the title if he seeks to avoid the contract. The prima facie presump- tion is that he satisfied himself as to the sufficiency of the title before entering into the contract. 92 295-a. TESTIMONY OF EXPERTS INADMISSIBLE. The question whether the title is one which the purchaser should be compelled to take, is one of law, to be determined by the court from the contract ; and it is error to admit the testimony of attor- neys and examiners of title upon that point. 93 But it has been held that the refusal of a title insurance company to guarantee, and of its general counsel to approve, the title, was sufficient to warrant a finding that the title was unmarketable. 94 296. ILLUSTRATIONS OF THE FOREGOING PRINCIPLES. The English and American law reports abound with cases illustrating the principles discussed in this chapter. A large number of the English cases have been collected and referred to very briefly and concisely by Lord St. Leonards, in his work on Vendors and Pur- chasers. 95 Many of these are comparatively of little value to the 80 Ante, 244. Stevenson v. Polk, 71 Iowa, 278; 32 N. W. Rep. 340; Phillips V. Day, 82 Cal. 24; 22 Pac. Rep. 976; Bank v. Ixmghran, 122 N. C. 668; 30 fe. E. Rep. 17; Van Gundy v. Shewey, 90 Kan. 253; 133 Pac. 720; 47 L. R. A. (N. S.) 645. The burden of proving the title to be unmarketable rests upon the objector. Ante, 281. Greenblatt v. Hermann, 144 K Y. 13; 38 N. E. 966; Rosenblum v. Eisenberg, 108 N". Y. Supp. 350; 123 App. Div. 896. w Witte v. Koerner, 108 N. Y. Supp. 560; 123 App. Div. 824. 82 Baxter v. Aubrey, 41 Mich. 16; IN. W. Rep. 897, citing Dwight v. Cutter, 3 Mich. 566; 64 Am. Dec. 105; Allen v. Atkinson, 21 Mich. 361. 93 Ante, 283. Evans v. Gerry, 174 111. 595; 51 N. E. Rep. 615; Moser v. Cochrane, 107 N. Y. 35; 13 1 N". E. Rep. 442. 94 Flood v. von Marcard, 102 Wash. 140, 172 Pac. 804. 95 1 Sugd. Vend. (8th Am. ed.) 583 (389). 820 MARKETABLE TITLE TO EEAL ESTATE. American lawyer, depending, as they do, upon questions of law peculiar to the English system of conveyancing and settlement of estates, and laws of real property, and it is, therefore, deemed unnecessary to reproduce them here. But it is believed that a col- lection of American cases, stated in the same concise manner, will be found useful to the profession. No attempt has been made to separate the cases in which the doubt turned upon a question of law from those turning upon doubtful questions of fact ; the effort has been rather to arrange the cases in groups, having reference to the sources from which objections to title most frequently spring. It will probably be found that in many of the cases cited the title was not only unmarketable or doubtful but absolutely bad. Thus, it is sometimes said that a title derived through a conveyance exe- cuted by a married woman without the precise forms and solemni- ties required by statute in such cases is not " marketable." It is plain, however, that such a title is not only doubtful or unmarket- able, but is absolutely .bad, for such an instrument is utterly invalid and inoperative to convey the woman's right. If, however, a grave doubt should arise as to whether there had been, in fact, a suffi- cient compliance with those requisites, and the court should be of opinion that another judge, or competent person, might well differ with him upon the point, then the title would be, in a technical sense, not "marketable," that is, doubtful. But inasmuch as all bad titles are necessarily not marketable in the sense that pur- chasers cannot be compelled to accept them, it is apprehended that no inconvenience will result from the want of technical precision in the use of the term "marketable," if any instance thereof should be perceived. Defects of title, with respect to the manner in which they are disclosed, are obviously of throe kinds, namely: (1) Those which appear upon the face of some instrument under which title is claimed, such, for example, as the want of proper words of con- veyance, or other essential requisites of a deed, such as a grantor, or a grantee, or a seal, or a sufficient certificate of acknowledg- ment, and other matters of Jiko kind. (2) Those which appear from the public records; such as a prior conveyance to a stranger; or the absence of any record title whatever; or the want of juris- OF DOUBTFUL TITLES. 821 diction of the subject-matter in judicial proceedings. (3) Those which rest in parol; that is, to be established by the testimony of witnesses, such as the happening of events upon which title depends, for example, births, deaths, marriages, adverse possession, the performance or happening of conditions antecedent or subse- quent, the vesting of contingent remainders, and the like. Cases arising from each of these sources will be found in the preceding pages, and in the notes which follow here. 297. Errors and irregularities in judicial proceedings. Errors, defects and irregularities in judicial proceedings, directly or incidentally, for the sale of lands, are the occasion, perhaps, of more objections to title than any other ground; certainly, in cases in which confirmation of the sale is resisted by the purchaser. In the consideration of such objections an important rule should be constantly borne in mind, namely, that no error, defect or irregu- larity in the proceedings, short of absolute want of jurisdiction on the part of the court, or fraud or mistake, to an extent that would vitiate the proceedings, can affect the title of the purchaser. The reasons for this rule are chiefly two: first, because upon reversal of a judgment for error, a purchaser under the judgment cannot be disturbed in his title and possession, there being only restitution of the proceeds of the sale to the person aggrieved; and, second, because the judgment under which the sale or conveyance to the purchaser was made, cannot be attacked in any collateral proceed- ing, by a party or privy to the judgment, except for want of jurisdiction to render, or fraud or mistake in the procuration or rendition of the judgment. 96 It may be doubted whether in every instance, cited in the notes below, in which the purchaser has been relieved from his bid or his bargain, on the ground of errors and defects in judicial proceedings rendering the title unmarketable, the decision will stand the test of the foregoing rule, inasmuch as there is no broad line of demarcation between facts which are, and those which are not, sufficient to show jurisdiction in the premises. It is true that most of the cases in which the rule that a title under a judicial sale is not subject to collateral attack, have been those which arose in ejectment by parties to the judgment 89 Ante, 49. 822 MARKETABLE TITLE To KEAL ESTATE. or their privies, against the purchaser or his privies, and not between vendor and purchaser ; -but it is apprehended that the rule would be the same in either case, and that a title would not be deemed unmarketable simply because of some error or irregularity in the proceedings, unless there was a reasonable doubt as to whether such error was not based on facts showing an absolute want of jurisdiction in the court. Of course if there should be a reasonable doubt whether the court had jurisdiction, the title would be unmarketable. Purchasers at judicial sales may always before confirmation of the sale object that the title is doubtful or unmarketable, as well as absolutely bad.' 7 As a general rule no such objection will be permitted after the sale has been con- firmed. 98 The defects of which the purchaser complains must be serious and real. Mere irregularities in judicial proceedings, through which the title passed, capable of amendment or cor- rection, will be no ground upon which to release him from his contract. 99 Nor will the purchaser be relieved if he made his bid with knowledge that the title was open to doubt, even though his objection be made before confirmation of the sale. 1 And it has been held that a purchaser at a sale in partition cannot object that the title is doubtful. The reason given was that if actual partition had been made the several partitioners could not have objected to the title, each partitioner taking his allotment cum onere? If the proceedings in a suit in which a 'Wilson v. White, 109 N. Y. 69; 15 N. E. Rep. 749; ShrSver v. Shriver. M, \. y. .-,7.-,; .Ionian v. I'oillon. 77 N. Y. 518; Williamson v. Field, 2 Sandf. Ch. (X. Y.) 533; Lee v. Lee, 27 Hun (N~. Y.), 1; McCahill v. Hamilton, 20 Hun (N. Y.), 388; Argall v. Raynor, 20 Hun (N. Y.), 567; Cox v. Cor, 18 Dit. Col. 1. * Ante, 45. * Dal/ell v. Crawford, 1 Pars. Sel. Cas. (Pa.) 37; Moot v. Business Men's Aso., 157 N. Y. 201; 52 N. E. 1. An order directing a purchaser at a ju- dicial sale to complete the purchase, he having filed specific objections to flic title, does not conclude the purchaser as to questions of title not submitted to the court. Williamson v. Field, 2 Sandf. Ch. (N. Y.) :.:w. 1 Ante, | 45. Stewart v. Devries, (Md.) 32 Atl. Rep. 285; Binford's Ap- peal, 164 Pa. St. 435: 30 Atl. Rep. 298. *8ebring v. Mersereau, 9 Cow. (N". Y.) 344, the court saying: "Upon a I. ill for specific performance of a contract for the sale of real estate there is no doubt that a court of equity will avoid compelling a purchaser to take a OF DOUBTFUL, TITLES. 823 judicial sale is had, are defective, thereby rendering the title of the purchaser doubtful or unmarketable, the burden of causing the necessary steps to be taken in the suit by which the error or irregularity in the proceedings will be cured, devolves on the plaintiff in the suit. He is bound to see that the action has been brought and prosecuted in accordance with the provisions of law regulating the procedure in such cases, and if a step has been omitted or unreasonably taken, thereby invalidating the judgment as to any of the parties in interest, it is his duty to apply for the necessary relief by way of amendment of the proceedings, before he can insist upon the purchaser's completing the purchase. 3 doubtful title. So, also, of a purchase under the foreclosure of a mortgage, and analogous cases. But in partition generally, and in this case particu- larly, there is no dispute as between the parties about the title. Their rights are determined when the order for partition is made. Suppose actual par- tition might have been made in this case; no notice could have been taken of incumbrances. Each takes the share allotted to him, and subject to such liens as 1 exist upon it. The business of the court in this simple suit, is not to draw into discussion various and conflicting rights and equities of incum- brancers. The property is divided cum onere." This decision is, doubtless, sound, where the objection is that the estate is incumbered, assuming that the court will see to the application of the purchase money to the incum- brance. But it is difficult to perceive any reason why a purchaser at a partition sale should be compelled to take a title rendered doubtful by the existence of adverse claims to the premises. The rule caveat emptor applies to such a sale, and if he should be evicted he would have no remedy over against the partitioners. Ante, 44. 3 Crouter v. Crouter, 133 X. Y. 55; 30 N". E. Rep. 726. This was a suit for partition to which non-resident infants were made parties defendant. The court appointed a guardian ad litem for them before jurisdiction of their persons had been acquired by the lapse of a prescribed period after service had been had upon them by order of publication. This was held an error that made the judgment rendered in the suit voidable by the infants. The defect, however, was curable by proper proceedings to be taken for that pur- pose (presumably in the same suit), and this, it was held, the plaintiff was bound to do before he could compel the purchaser to proceed with the con- tract. ERRORS AND IRREGULARITIES IN JUDICIAL PROCEEDINGS. Titles held doubt- ful. A purchaser cannot be compelled to accept a title depending upon a judicial sale under an erroneous judgment liable to be reversed. Young v. Rathbone, 1 C. E. Green (N. J.), 224; 84 Am. Dec. 151. Want of affidavit in proceedings against unknown heirs renders the title doubtful. Tevis v. Rich- ardson, 7 B. Mon. (Ky.) 654. An insufficient printer's certificate of publi- 824 MARKETABLE TITLE TO REAL ESTATE. cation of an order against unknown heirs, makes title of purchaser at judicial sale doubtful. Tevis v. Richardson, 7 B. Mon. (Ky.) 654. Whether a pur- chaser can be compelled to accept a title under a decree against unknown heirs. Tevis v. Richardson, 7 B. Mon. (Ky.) 654. Where an affidavit for publication of summons against a non-resident failed to state that defendants could not be found after due diligence title of purchaser at a sale under decree against such defendants, held unmarketable. Bixby v. Smith, 3 Hun (N. Y.), 60. Whether a decree setting aside a fraudulent conveyance, and directing a sale of the land, could be enforced by fieri facias: >McCann v. Edwards, 6 B. Mon. (Ky.) 208, 211. Whether more property had been sold under a mortgage than was necessary to satisfy the debts secured: Hemmer v. Eustace, 51 Hun (N. Y.), 457; 3 N. Y. Supp. 850. Whether a married woman, sued with her husband, was competent to confess a judgment bind- ing her separate estate: Swayne v. Lyon, 67 Pa. St. 436. Whether the declaration in a euit against husband and wife for materials furnished for the improvement of the wife's separate estate, was so drawn that a judgment for the plaintiff by confession absolutely concluded the wife from afterwards showing that the materials were not furnished for the improvement of such estate: Swayne v. Lyon, 67 Pa. St. 436. Whether a judgment creditor, suing to set aside a conveyance from husband to wife, was bound by an order giving leave to file a complaint nunc pro tune in a proceeding to which such creditor was not a party, so as to antedate the filing of his complaint. Weeks v. Tomes, 16 Hun (N". Y.), 349. Whether the Special Term of the Supreme Court of New York had power to make an order providing for serv- ice of summons by publication: Crosby v. Thedford, 13 Daly (N. Y.), 150. A sale of the land of a non-resident under an order or decree of court is void, if publication of process be made for less time than that required by law. Jarboe v. McAtee, 7 B. Mon. (Ky.) 279. Whether a lien on the real estate of a county treasurer's surety attached from the date of process in a euit on the treasurer's bond, or whether it attached only at the time of service of the process: Snyder v. Spaulding, 57 111. 480. Where a petition for the sale of real estate, the object of which is to defeat a contingent remainder, fails to set forth such purpose as required by the statute under which the proceeding is had, the title of a purchaser under a decree in such cause will be un- marketable: Westhafer v. Koons, 144 Pa. St. 26; 22 Atl. Rep. 885. Whether a title dependent upon the action of the court in amending, ex parte, a summons against a mortgagor, who had been summoned under the wrong Christian name, was marketable: Stuyvesant v. Weil, 58 N. Y. Supp. 697; 41 App. Div. 551. Where the record in a suit by an executor for leave to sell the decedent's lands, failed to show that the executor had executed a bond, as required by law. Taylor v. Chamberlain, 30 N. Y. Supp. 737; 6 App. Div. 38. Whether a probate court in Connecticut had power to sell real property for payment of debts of decedent as well as for partition : Taylor v. Chamber- lain, 39 N. Y. Supp. 737; 6 App. Div. 38. Whether the failure of the judge to sign an interlocutory order authorizing sale and partition was such an irregularity as affected the title held under such order: Hecker v. Brown, 104 La. 524; 29 So. Rep. 232. Whether a foreclosure sale might, under the Uws of*Michigan, be made more than ten years after a decree directing the OF DOUBTFUL TITLES. 825 sale: Walker v. Oilman, 127 Mich. 269; 86 N. W. Rep. 830. Whether a bill by a grantor to set aside his deed on the ground of fraud and undue influence, was lawfully discontinued by his committee upon his death, he having been adjudged a lunatic before his death: Stobert v. Smith, 184 Pa. 34; 38 Atl. 1019. Whether a decree of separation between parties neither of whom was a resident of the State, was valid, so as to authorize the wife to convey dotal property free of the rights of the husband: Carter v. Morri-3 B. & L. Asso., 108 La. 143; 32 So. Rep. 473. Whether the court had juris- diction to order a sale of decedent's realty by the administrator. Koch v. Streuter, 232 111. 594; 83 N. E. 1072. Whether the surrogate had juris- diction to authorize a guardian ad litem to compromise a suit by him to establish a devise of realty to the infant. Dixon v. Cozine, 114 N. Y. Supp. 615. Whether an affidavit for publication of process, failing to show what effort had been made to find defendant, was sufficient. Reid v. Johnson, 121 N". Y. Supp. 750. Whether the court had jurisdiction to enter judgment by default in an action to quiet title in which the complaint did not allege that plaintiff had ever been in possession. Lese v. M'etzinger, 105 N. Y. Supp. 888. Whether sufficient notice of an order to show cause against a probate sale had been given. Weaver v. Esary, 78 Wash. 640; 139 Pac. 607. Where the title depended upon a decree based on service by publication of process, such decree being liable to be vacated at any time within three years. Mc- Nutt v. Nellans, 82 Kan. 424; 108 Pac. 834. Whether a title claimed under a will was affected iby the failure of the executor to file an inventory of the estate. Atwood v. Fagan, 63 Tex. Civ. App. 659; 134 S. W. 765. Titles held marketable. Whether a deputy clerk has power to administer oaths in a suit pending before the court: Mullins v. Porter, 4 Heisk. (Tenn.) 407. Whether a failure to serve a summons on the wife in a suit to foreclose a purchase-money mortgage executed by the husband, affected the title of the husband as purchaser at the foreclosure sale: Watson v. Church, 3 Hun ( N". Y. ) , 80. Whether the sanction by a court of chancery of a sale of property belonging to a religious corporation validated the sale, where the law required the sanction of that court before the sale: Dutch Church v. Mott, 7 Paige (N. Y.), 77. Whether a petition for partition of lands need be sworn to: Martin v. Porter, 4 Heisk. (Tenn.) 407. Whether a certain advertisement of a sale under a mortgage was sufficient: Streeter v. Illsley, 151 Mass. 291; 23 N. E. Rep. 837; White v. Bates, 234 111. 276; 84 N". E. 906. Whether the failure of the court to appoint an attorney to represent aibsent heirs in a suit for partition invalidated the title of a pur- chaser at a sale in such suit: Mather v. I/ehman, (La. Ann) 10 So. Rep. 939. Whether the improper designation of unknown parties in a summons, rendered the title doubtful: Lenehan v. College, etc., 63 N". Y. Supp. 1033; 30 Misc. 378. Whether the heirs of one who had mortgaged his interest in a trust estate, which mortgage was foreclosed, were entitled to notice of an application for the appointment of a trustee of the estate: Van Wyck v. Richman, 68 N. Y. Supp. 473, 33 Mfisc. 404. Whether an infant, who appeared by guardian below, was bound by a decree rendered on appeal in a suit by the vendor for specific performance: Early v. Douglas, 23 Ky. Law R. 298, 104 826 MARKETABLE TITLE To REAL ESTATE. The mere fact that the right of appeal from a judgment, on which the title depends, has not expired, does not render the title doubtful. 4 298. Sales of the estates of persons under disabilities. The courts exact a rigid compliance with all the provisions of law by which sales of the estates of infants, or other persons who are not sui juris, are governed. Such sales are to be made only upon authority obtained in judicial proceedings instituted for that purpose, or by special act of the legislature, and the statutes in most of the States provide that the pleadings shall show the necessity of the sale ; that they shall be verified by the oath of the guardian, or other person, and that no sale shall be directed unless the allegations of the necessity therefor be sustained by testimony 62 S. W. Rep. 860. The fact that an order for publication of summons in a suit for partition was signed only with the initials of the judge, is no suffi- cient objection to the title. Volz v. Steiner, 73 X. Y. Supp. 1006, 67 App. Div. 504. Verification of a petition for appointment of a guardian ad litem before a notary, who was attorney in the suit, is no ground of objection to the title when the essential facts stated in the petition appear in a subsequent affidavit in the cause. Baumeister v. Deinuth, 82 N. Y. Supp. 831, 84 App. Div. .'J04. The possibility that a decree, under which the vendor holds, may In 1 opened in In-half of non-resident defendants, is no objection to the vendor's title if the proceedings in the cause appear to have been regular. Hays v. Tribble, 3 T. B. 'Mon. (Ky.) 106. As to What irregularities in proceedings before a surrogate for the sale of a decedent's real estate for the payment of his debts, will not render the title doubtful, see Regney v. Coles, 6 Bos. (X. Y.) 479. In Stevenson v. Polk, 71 Iowa, 278, 32 X. W. Rep. 340, the possibility that defendants, on whom process had been served by publication, would appear and take advantage of an irregularity in the proceedings, was held insufficient to make the title unmarketable. Whether the sufficiency of an affidavit for publication of process could be attacked in a collateral pro- ceeding. Carman v. Bedell, 144 X. Y. Supp. 328, 82 Misc. Rep. 652. Whether the deed of a referee in a foreclosure proceeding was sufficient, the record failing to show proof of pliintifTs case and examination of plaintiff as to payments. Brody & Co. v. HK-hstadter, 144 N. Y. Supp. 831, 160 App. Div. 310. Whether a final decree for distribution in a probate proceeding, entered by consent of all parties in interest, was conclusive upon them. Barette v. Whitney, 30 Utah 574, 106 Pac. 522, 37 L. R, A. (N. S.) 368. Whether serv- ice by publication on " Bothwick " wan good as service on Borthwick. Harrel v. N*ef, 80 Kan. 348, 102 Pac. 838. Whether validity of sale by trustee in bankruptcy was affected by his failure to file copy of adjudication with the recorder of deeds. Kennedy v. Holl, 103 N. Y. Supp. 231. 4 Adami v. Backer, 60 X. Y. Supp. 683, 29 Mic. 93. OF DOUBTFUL TITLES. 827 taken in the presence of a guardian ad litem. These provisions and others of like character go to the jurisdiction of the court, and if they be not complied with, the court has no power to order a sale. One of the most important points to which the attention of the purchaser must be directed in this connection is that the person under disabilities shall have been represented by guardian ad litem, or other appropriate person, in the proceeding to sell. Even the rights of unborn children must be protected by having a representative of their interests before the court. 5 The rule that a purchaser will not 'be compelled to take a doubtful title applies with special force where infants are not concluded by the judgment or decree in proceedings for the sale of lands in which they are interested. 6 It has been held, in ISTew York, that the legislature has power to order the sale of separate pieces of land belonging to separate families of infants severally interested, and to direct the proceeds to be brought into a common fund for partition, and that a title dependent upon a sale under such an act was marketable. 7 In a case in Alabama the purchaser denied the power of the legislature to authorize, by private act, the sale of infant's lands by their mother, who was not their guardian, but the court held that the power existed, and required the purchaser to take the title. 8 5 Holmes v. Wood, (Pa.) 32 Atl. Eep. 54. One of the interests sold in this case was liable to open to admit after-born children, and there being no representative of such prospective interests before the court, the title of a purchaser at a sale in the cause was held doubtful. James v. Meyer, 41 La. Ann. 1100, 7 So. Rep. 618. 7 Ebling v. Dwyer, 149 1ST. Y. 460, 44 1ST. E. 155. 8 Munford v. Pearce, 70 Ala. 452. SALE OF INFANT'S ESTATE, ETC. Titles field not marketable. Whether the rights of an infant heir of a mortgagor were concluded by an illegal sale under the mortgage: Hemmer v. Hustace, 51 Hun (N. Y.), 457, 3 N". Y. Supp. 850. Whether want of personal service upon certain infant defendants in partition invalidated a judgment therein rendered: Swain v. Fidelity Ins. Co., 54 Pa. St. 455. Whether in a case in which there was no jurisdiction for partition except by consent, jurisdiction could be given by consent where the rights of infants were involved: Scheu v. Lehning, 31 Hun (N. Y.), 183. Whether certain irregularities in proceedings for the sale of an infant's estate vitiated the title of the purchaser : Gills v. Wells, 59 Md. 492. Whether notice of a tax sale served on infant owners in person without the appoint- ment of a guardian ad litem was sufficient to conclude them: Levy v. New- 828 MARKETABLE TITLE TO REAL ESTATE. 299. Want of parties to suits. A judgment or decree is in no way conclusive upon a person in interest who was not a party man, 50 Hun (X. Y.), 438, 3 X. Y. Supp. 324. Whether a judgment in a suit for partition of an estate among devisees barred the rights of unborn children in remainder, the judgment not providing for their protection: Monarque v. Monarque, 80 X. Y. 320. Whether a court of chancery had power to confirm an illegal sale of an infant's land made 'by the father: Linkous v. Cooper. 2 W. Va. 67. Whether an appearance by an infant in partition by next friend instead of a guardian ad litcm, was irregular and invalid: Swain v. Fidelity Ins. Co., 54 Pa. St. 455. Whether the appointment of a guardian ad litrm for an infant defendant in a certain case was valid : Uhl v. Laughran, 4 X. Y. Supp. 827, 22 X. Y. St. Rep. 459. Whether a certain conveyance by executors was in fraud of the rights of infants claiming under the will : Stevens v. Banta, 47 Hun (X. Y.), 329. Whether a guardian's sale of the lands of his ward without authority was validated by a license to sell afterwards ob- tained : Williams v. Schembri, 44 'Minn. 250, 46 N. W. Rep. 403. Whether a sale of an infant's estate ostensibly for the benefit of the infant 'but really to assist another to get possession of the property was valid, a fair price having been realized for the property and no fraud intended: Weinstock v. Levison, 26 Abb. X. Cas. (X. Y.) 244, 14 X. Y. Supp. 64. The failure of a guardian ad litem to file a bond with the clerk in proceedings for sale of an infant's lands cannot be cured by an order nunc pro tunc t made without notice to the infant or other parties; and the purchaser cannot be required to take a title dependent upon the validity of such proceedings. Walter v. De Graaf, 19 Abb. X. Cas. (X. Y.) 406. A title founded on a decree against an infant is invalid, since the infant may show cause against the decree after arriving at majority. Bryan v. Read, 1 Dev. & Bat. Eq. (X. C.) 86. This proposition, it is believed, should be limited to cases in which there is reason- able ground to apprehend that the infant will be able to show cause; other- wise there can be no stability of titles under decrees in suits to which there were infant defendants. Whether a probate judge could lawfully grant leave to sell "on the premises" lands of minors not situated in a city: Home v. Rogers, 113 Ga. 224, 38 S. E. Rep. 768. The fact that lands of an intestate were purchased at an administrator's sale, partly for the administrator's benefit, the rights of minor heirs of the intestate being involved, renders a title held under such sale unmarketable. Griffith v. Maxfield, 63 Ark. 548, 39 S. W. Rep. 852. Whether widow, guardian in socage of her infant child, could take title to the infant's realty under a sale by special guardian. Feller v. Mitchell, 103 X. Y. Supp. 269. Whether sale by guardian was affected by his failure to file the sale bond required by statute. Hubachek v. Bank. 117 Minn. 163, 134 X. W. 640, Ann. Cas. 1913 D. 187. Whether the bringing of the proceeds of the sale into court cured the illegality of the sale. Scheuermann v. De Latour, 130 La. 549, 58 So. 223. Whether a irnardian was competent, after the death of tke ward, to carry out a license to her and to the ward to sell and convey the ward's property. Costello v. Tasker, 227 Mass. 220, 116 X. E. 573. Whether a certain transaction, in which a guardian ad litem became the purchaser of the property, was void cr merely voidable. McKean v. Hill. 151 X. Y. Supp. 689, 166 App. Div. 18. OF DOUBTFUL TITLES. 829 to the proceeding in which such judgment or decree was pro- nounced. 9 Hence a title so derived, 'being always open to col- Titles held marketable. Whether a creditor of an infant was competent to act as his next friend in a suit for partition: O'Reilly v. King, 28 How. Pr. (N. Y.) 408. Whether the appointment of a guardian ad litem in a suit is valid when it does not appear by affidavit that the infant defendants have no regular guardian: Martin v. Porter, 4 Heisk. (Tenn.) 407. Whether a guardian ad litem for an infant defendant can be appointed by a judge at chambers: Disbrow v. Folger, 5 Abb. Pr. (N. Y.) 53. Whether a petition for the sale of an infant's estate may be presented by the parent as natural guardian instead of by next friend: Ex parte Whitlock, 32 Barb. (N. Y.) 48. Whether a clerical error in the date of an affidavit by a guardian ad litem in a suit for partition vitiated the proceedings: Martin v. Porter, 4 Heisk. (Tenn.) 407. Whether a judgment confirming a sale in partition was conclusive upon infant defendants: Reed v. Reed, 46 Hun (N. Y.), 212. See, also, Scholle v. Scholle, 55 N. Y. Super. Ct. 468. Whether the legis- lature could pass a special act authorizing the sale of certain property be- longing to minors, the sale being for their benefit: Munford v. Pearce, 70 Ala. 452. Whether an act providing for substituted service was binding on unknown infant heirs: Steinhardt v. Baker, 49 N. Y. Supp. 357, 25 App. Div. 197. Whether unknown infants would be bound by a decree for sale by a referee in a case in which the executors were empowered by the will to sell, the proceeding not being the ordinary statutory application for the safe of infants' lands, but a proceeding for other relief to which the sale was a mere incident. Adami v. Backer, 60 N". Y. Supp. 683, 29 Misc. 93. Failure of the records to show title out of an executor, and the possible existence of persons under disabilities are not sufficient objections to the title, where there is evidence that the whole of the testator's realty was converted into personalty, and that the only persons who could lay claim to the prem- ises, received their shares of the personalty. Doll v. Pizer, 89 N. Y. Supp. 277, 96 App. Div. 194. Where husband and wife were parties to a suit to foreclose a mortgage, and the husband purchased the premises, he could not object that the appearance of his wife, an infant, by attorney instead of guardian ad litem was such an error as made the title unmarketable, since her dower rights were unimpaired, the husband being the purchaser. Knight v. Maloney, 4 Hun (N. Y. ), 34. Description of curatrix as "guardian" in a proceeding for the sale of an infant's lands does not impair the title. Mitchener v. Holmes, (Mo.) 22 S. W. Rep. 1070. Where the infants were by their guardian ad litem, parties to the suit to compel specific performance by the vendor. Guy v. Hansow, 86 Kan. 933, 122 Pac. 879. Whether the heirs of an Indian allottee of land were concluded by their conveyance of the land in fee (approved by the Secretary of the Interior) and by the decree of a State court quieting the title of the grantee. Egan v. McDonald, 36 S. D. 92, 153 N. W. 915. Whether a decree of partial distribution would have the effect of precluding objections by minors distributees to the validity of the sale. French v. Phelps, 20 Cal. App. 101, 128 Pac. 772. 9 Ante, 287. 830 MARKETABLE TITLE To REAL ESTATE. lateral attack, is not only doubtful, but absolutely bad. But questions frequently arise as to whether certain persons were necessary parties to proceedings resulting in the sale of lands. Wherever such persons have not been made parties, and the ques- tion whether their presence was properly dispensed with, admits of reasonable doubt, either upon the law or the facts, a title depending upon such question becomes, in a technical sense, doubtful or unmarketable, and such as a purchaser cannot be com- pelled to take. 10 Illustrations will be found in the notes below. The mere non-joinder of persons who would have been proper parties to the suit, but were not absolutely necessary parties, does not, in every instance, create a sufficient doubt as to the title. Thus, it has been held that the non-joinder of the heirs of a dece- dent as defendants in a suit to enforce a mechanic's lien against his estate did not raise a tenable doubt as to the validity of a title derived under a sale in such suit, in the absence of anything to show that there was a good defense to the suit. 11 The bare pos- sibility that there may have been persons who, if they existed, would have been necessary parties to the suit, presents no objec- tion to the title. Therefore, in a proceeding for partition in which the pleadings set forth certain persons as heirs entitled to partition, it was held that the mere fact that there might haw been other heirs than those stated did not make the title doubtful, there being nothing to show that such other heirs had probably existed. 11 Where the title depended on a like proceeding, and the "Dworsky v. Arndtstein. 31 N. Y. Supp. 597, 29 App. Div. 274. "Reece v. Haymaker (Pa.). 20 Atl. Rep. 404. "Greenblatt v. Hermann. 144 N. Y. 13, 38 X. E. Rep. 966. WAXT OF PARTIES Titl held not marketable. Whether a Bale of lands for payment of a deredent's debts was valid without notice of the proceed- ing to the heirs: Littlefield v. Tinsley, 26 Tex. 35H. Whether the heirs of A. should have been made parties to a suit in which it was decided that a deed was made to A. by mistake: Mead v. Altgeld, 33 111. App. 373, 26 N. E. Rep. 388. Whether a tenant, by the eurtesy of an undivided interest in mortgaged premise*, i-hould have been made a party to a proceeding to foreclose a mortgage: liecker v. Sexton, 6 N. Y. State Rep. 680. Whether it-Main children having an interest in remainder in mortgaged premises should have been made parties to a Miit to foreclose the mortgage: Lockmnn v. Reilly, 29 Hun (N. Y.), 434. See, also, Moore v. Appleby, 108 N. Y. 237. 15 N. E. Rep. 377. Whether certain contingent remaindermen should have OF DOUBTFUL TITLES. 831 record therein showed that all parties apparently in interest had been made parties to the suit, it was held that the burden was on the purchaser to show that some necessary party was omitted been made parties defendant to a foreclosure suit: Nodine v. Greenfield, 7 Paige (N. Y.) 544; N. Y. Sect. & Tr. Co. v. Schomberg, 84 N. Y. Supp. 359, 87 App. Div. 262. B., tenant in common with A., devised his interest to his wife during widowhood, and in the event of her marriage, then to his children. B/s widow and A. made partition of the estate among them- selves, but B.'s children not having been made parties to the partition, A.'s title was held unmarketable. Herzberg v. Irwin, 92 Pa. St. 48. The fact that a record in partition, under which title is derived, fails to show that certain persons not joined as parties, who would be necessary parties if capable of taking, were incapable for any reason (alien enemies, for example), and, therefore, properly omitted, renders the title doubtful. Toole v. Toole, 112 N". Y. 333, 22 Abb. N. C. 392. A title resting on a sale under execution against heirs upon a judgment founded on a sci. fa. in which the heirs were not specially named is unmarketable. Newman v. 'Maclin, 5 Hayw. (Tenn.) 241; Williams v. Seawell, 1 Yerg. {Tenn.) 83; Henderson v. Overton, 2 Yerg. (Tenn.) 394, 24 Am. Dec. 492. B., tenant in common with C., devised his estate to his wife subject to legacies. The widow conveyed her moiety to the other co-tenant, C., and on his death his heirs brought suit for partition among themselves. B.'s estate was insufficient to pay the legacies. B.'s lega- tees not having been made parties to the suit, the title thence derived was held doubtful. Jordan v. Poillon, 77 N. Y. 518, a leading case. See, also, Argall v. Raynor, 20 Hun (N. Y.), 267; Scholle v. Scholle, 55 X. Y. Super. Ct. 474. Where a third person, not a party to a suit for partition, had a right to enforce a power of sale against the land in the hands of the partitioner and those claiming under them, the title was held unmarketable. Ford v. Belmont, 7 Rob. (N. Y.) 97, 111. A purchaser will not be required to take a title under a decree in a suit for the construction of a will to which all persons in interest were not parties. Sohier v. Williams, 1 Curt. (C. C.) 479. Where the question was whether certain acts of a widow amounted to an election to accept a provision made for her in her husband's will, and the question was decided in the affirmative, she not being a party to the proceeding in which the question was raised, a title depending thereon was held unmarketable: Reynolds v. Strong, 82 Hun (N. Y.), 202, 31 N. Y. Supp. 329. Where it appeared that a third person might claim an interest in the land by reason of his not having been made a party to the suit. Smith v. Hunter, 241 111. 514, 89 N. E. 685, 132 Am. St. Rep. 231. Titles held marketable. Whether a judgment in a suit by one proprietor declaring an assessment void for certain defects in the statute under which it was laid was conclusive in favor of other proprietors not parties to the proceeding: Chase v. Chase, 95 N". Y. 373. Whether an assignee for the benefit of creditors should have been made a party to a suit to foreclose a mortgage executed before the assignment: Wagner v. Hodge, 34 Hun (N. Y.), 524. Whether, in a certain case in which remaindermen had not been made 832 MARKETABLE TITLE TO EEAL ESTATE. whereby the title was rendered unmarketable. 13 The bare possi- bility that one of the defendants, who was proceeded against as a non-resident, might appear at some future period and make objections to the decree, is no ground on which title under such decree can be held doubtful. 14 299-a. Irregularities in foreclosure sales. A great number of titles depend upon sales under deeda of trust and "power of sale " mortgages executed to secure the payment of debts. These sales are made by the trustee or mortgagee, without the interven- tion of the courts, after advertisement and the observance of other parties to a suit for partition, they were concluded by a judgment in a subsequent suit to which they were parties, by which it was determined that they had no interest in premises allotted to a party to such partition suit under whom the vendor claims: Paget v. Melchior, 58 N. Y. Supp. 913, 42 App. Div. 76. Whether the possible heirs of a married woman were bound by a decree in a suit by her to reform a deed drawn by mistake to convey land to her use for life with remainder to her heirs, instead of conveying to her an absolute fee simple: Kendall v. Crawford, 25 Ky. Law R. 1224, 77 S. W. Rep. 364. Testator devised certain property to his wife for life, with remainder to their married daughter for life, and remainder over to her children. The widow disclaimed under the will, and claimed the property as her separate estate, and brought a suit against the married daughter and the living children of such daughter, to quiet her title to the property. There was a decree in her favor. Held, that title under such decree was not ren- dered unmarketable by the fact that other children were born to the daughter after the decree. They were virtually represented in the suit by their mother. Gray v. Smith, 76 Fed. 525. Whether, in a certain case, two charities, to each of which testator devised a share of his estate, were one and the same corporation, so that one of them was properly not made a party defendant to a proceeding for the sale of the property devised: Sisters of Mercy v. Benzinger. 95 Md. (584, 53 Atl. 548. The fact that an assignee for the benefit of creditors of properly which had been previously mortgaged was not made a party to a suit to foreclose the mortgage, was held, after the lapse of more than twenty-five years, no objection to the title under Laws of New York, 1875, providing that deeds for the benefit of creditors shall be deemed discharged after twenty-five years from their date. Kip v. Hirsh, 103 N. Y. 565, N. E. Rep. 317. Failure to make an incumbrancer a party to a suit to foreclose a prior incumbrance, though error, does not render the title of the purchaser at the foreclosure sale unmarketable, since the purchaser ac- quire* by subrogation all the rights of the prior incumbrancer. De Saussure v. Bollman, 7 Rich. (N. S.) (8. C.) 329. "Day v. KingHland, 57 N. J. Kq. 134, 41 Atl. Rep. 90. "Wolverton v. Stevennon, 52 La. Ann. 1147, 27 So. Rep. 874. OF DOUBTFUL TITLES. formalities provided for in the instruments under which they act. If there should be any serious doubt as to the validity of the sale for any cause, such as want of due advertisement of the sale, misconduct of the trustee, collusion between the purchaser and the mortgagee or trustee, gross inadequacy of the price, and the like, and the rights of the parties affected by the sale have not become barred by the lapse of time, title dependent upon such sale will be deemed unmarketable, and not such as a purchaser may be required to take. 15 300. Defective conveyances and acknowledgments. Imper- fect registration. A vast number of objections to title are founded upon errors or irregularities in the drafting, acknowledgment, and registration of deeds under which title is claimed. These, of course, may be absolutely fatal to the title, or, at least, render it doubtful; but many of them are merely captious or frivolous, being ferreted out by counsel to aid the purchaser in his escape from a losing bargain. They are principally questions of law suggested by clerical mistakes and inadvertent omissions on the part of those concerned in the execution and authentication of conveyances, such, for example, as the sufficiency of an informal and irregular certificate of acknowledgment; or the sufficiency of a deed in which the spelling of the name of the grantor in the body of the deed, differs from his signature to the deed. Of course, however, graver questions frequently arise; e. g., whether the language employed by the grantor in the granting clause, is sufficient to create a certain interest, and the like. In either case, if the question admit of a reasonable doubt, the title depending thereon will not be forced upon the purchaser. The want of regular registration of deeds under which the vendor deduces 15 Martin v. Hamlin, 176 Mass. 180, 57 K E. Rep. 381. In Crutchfield v. Hewett, 2 App. D. C. 373, such a sale was set aside by the lower court after seventeen years' delay, for want of due advertisement and for other irregulari- ties. The decree was reversed on the ground that the complainants had slept too long upon their rights. Failure of the abstract to show that the mortgage contained a power of sale, was not cured by a recital of such power in the sheriff's deed. Bradway v. Miller, 200 iMich. 648, 167 N. W. 15. Want of due notice of foreclosure made the title unmarketable. Foster & Co. v. Sayles, 213 Mass. 319, 100 N. E. 644. 105 834 MARKETABLE TITLE TO REAL ESTATE. title, there being no other proof of execution, is an insuperable objection to specific performance by the purchaser. 18 M Hyne v. Campbell, 6 T. B. Mon. (Ky.) 286. George v. Conhaim, 38 Minn. 338, 37 X. \V. Rep. 391. The mere non-record of a deed executed by a referee in foreclosure proceedings does not render doubtful a title held thereunder, the court having confirmed the sale and directed the deed to be made. Calder v. Jenkins, 16 X. Y. Supp. 797. ERRORS AND IRREGULARITIES IN THE DRAFTING, EXECUTION' AND ACKNOWLEDG- MENT OK INSTRUMENTS Titles held not marketable. Whether a certain con- veyance had been executed as an escrow or not: Sloper v. Fish, 2 Yes. &. Bea. 145. Whether by a conveyance of lot "fifteen " in a certain block, lot fifteen in a subdivision of original lot fifteen was intended: Parker v. Porter, 11 111. App. 602. Where the description of the property in the deed to the vendor varied materially from that in a prior deed in the chain of title: Fitxpatriek v. Sweeny, 56 Hun (N. Y.), 159, 121 N. Y. 707. W T here there is a mistake in the description of the premises in a deed under which the vendor holds: Smith v. Turner, 50 Ind. 367; Heller v. Cohen, 154 N. Y. 299, 48 N. E. 527; such, for example, as the insertion of the word " east " instead of " west " in the description of the premises. Brown v. Reichling, 86 Kan. 640, 121 Pac. 1127. Where a tract of land was originally surveyed in a block with other lands, and from fixed monuments and other circumstances, it appears probable that there was a serious interference 'between the various tracts: Holt's Appeal, 98 Pa. St. 258. Whether a certificate of acknowledgment which failed to state that the grantors were known to the certifying oflicer to be such, etc., was sufficient: Fryer v. Rockefeller, 63 N. Y. 268; Paolillo v. Feber, 67 N. Y. Supp. 638, 56 App. Div. 241 ; Freedman v. Oppenheim, 81 N. Y. Supp. 110, 80 App. Div. 4S7. Where certificate of acknowledgment failed to show that the certifying officer was personally acquainted with the grantor: .Mull in-, v. Aiken, 2 Heisk. (Tenn.) 535. Where the certificate of the clerk of court failed to state that he was acquainted with the officer's handwriting and believed his signature genuine: Freedman v. Oppenheim, 81 N. Y. Supp. 110, 80 App. Div. 487. Where the wife's acknowledgment of a deed under which the vendor claimed, was wanting: MeCann v. Edwards, 6 B. Mon. (Ky.) 208. Where the certificate did not show prior examination of the wife: Hepburn v. Auld, 5 Cranch (U. 8.), 267, 275. Whether parol evidence of the certifying officer could be received to show that the wife's acknowledgment was duly taken: Tomlin v. .MoChord, 5 J. J. Marsh. (Ky. ) 13f>. Whether a certain informal certificate of acknowledgment of a deed by a married woman sufficiently showed that the grantor was known to the certifying officer, that the deed had been explained to the grantor, that she had been privily examined apart from her husband, and that she had declared that -In- had willingly signed, sealed and delivered the same: Black v. Aman. Mac-key (D. < . . 131. A title dependent on an acknowledgment of a married woman, taken before a party to (he deed acknowledged, is not marketable. Withers v. Kaird, 7 Watts (Pa.), 227, 32 Am. Dec. 754. And a title derived through :i conveyance defectively acknowledged by a married woman, is un- OF DOUBTFUL TITLES. 835 The general rule is that in so far as the title depends upon the marketable. Beardslee v. Underbill, 37 N. J. L. 309. Where a deed was re- corded upon a certificate of acknowledgment before a commissioner of deeds for the State of New York, and was not accompanied by a certificate from the Secretary of State of the State of New York, showing authority on the part of said commissioner, and there was no extraneous evidence to show that the deed had been in fact acknowledged by the grantor, a title thence derived was held unmarketable. Williamson v. Banning, 86 Hun (N. Y.), 203 (S3 N. Y. Supp.). In Irving v. Campbell, 121 N. Y. 353, 24 N. E. Rep. 821, 8 L. R. A. 620, the fact that a certificate of acknowledgment of a conveyance did not state the place of residence of the subscribing witness, was held to render the title unmarketable, though it appeared that the person and place of residence of such witness was well known. A title founded upon a decree against husband and wife to enforce specific performance of a contract by the hus- band to sell the wife's lands, is unmarketable, where it appears that there are no equities binding the wife in a suit, or that she had not released her rights in the manner provided by law. Hays v. Tribble, 3 T. B. Mon. (Ky.) 106. Where an abstract of title showed record title in " H. P. Hepburn " and no title out of him, but title out of " H. P. Hopkins," and the vendor claimed that the deed from Hopkins was in fact from Hepburn, but refused to submit his proofs for examination of the purchaser, it was held that the latter might reject the title and recover his deposit, though the vendor might be able to show that the title was good. Benson v. Shotwell, 87 Cal. 49, 25 Pac. Rep. 249. So, also, where the record title was in " K. F. Redmond " and the next conveyance was from " K. F. Redman," it was held that the two names were not idem sonans, and that the title was unmarketable, and that the defect was not cured by a second deed from K. F. Redman to the plaintiff's vendor, reciting that he was the same person as " K. F. Redmond " in the first- mentioned deed. Peckham v. Stewart, 97 Cal. 147, 81 Pac. Rep. 928. So, also, where a conveyance was by error made to " James M." instead of " Joseph M.," though the error was afterwards recited in a suit in which the premises were partitioned between the heirs of Joseph M. and one who had been his co-tenant, such recital and finding not being conclusive upon any one who should claim as " James M." Mead v. Altgeld, 136 111. 298, 26 N. E. Rep. 388. Whether a deed had been executed in the proper manner by an attorney in fact. Kohlrep v. Ramm, 79 N. J. Eq. 386, 81 Atl. 1103. Failure of trustee's deed to show a substantial consideration therefor. Slade v. Crum, (Tex. Civ. App.) 193 S. W. 723. Whether the date of an unrecorded deed determined its priority over a judgment. Tausk v. Siry, 180 N. Y. Supp. 439, 110 Misc. Rep. 514. Whether an unrecorded deed had been delivered. Johnston v. Garvey, 124 N. Y. Supp. 278, 139 App. Div. 659. Failure of the certificate to state that grantor was known to the certifying officer. Moran v. Stader, 103 N. Y. Supp. 175. Whether "Gerhard F. Terschuren, grantee in the chain of title, was the same person as " George F. Terschuren." Wal- ters v. Mitchell, 6 Cal. App. 410, 92 Pac. 315. Where the recorder struck out " Robbins " and inserted " Robben " as grantee in a deed made 38 years before. Robben v. Benson, (Cal. App.) 173 Pac. 766, but see S. C. 185 Pac. 836 MARKETABLE TITLE TO REAL ESTATE. execution, attestation, acknowledgment, and effect of conveyances, 200. Whether a conveyance by " Noah C. Amden " was to be treated as a conveyance by "Noah C. Anderson." Geithman v. Eichhler, 265 111. 579, 107 N. E. 180. Describing the land as being in a township other than that in which it lies. Bradway v. Miller, 200 Mich. 648, 167 N. W. 15. Describ- ing the property as appearing on the " Whitman " instead of the " Pittman " plat. Boylan v. Wilson (Ala.) 70 So. 364. Titles held marketable. Whether a conveyance under which the vendor claimed was a sealed instrument: Todd v. Union Dime Sav. Bank, 118 N. Y. 337, 23 N. E. Rep. 299, reversing 20 Abb. N. C. 270, and 44 Hun (N. Y.), 623. Whether the husband must join in a conveyance by an execu- trix: Tyree v. Williams, 3 Bibb (Ky.), 366; 6 Am. Dec. 663. Whether " Electa Wilder," under whom the vendor claimed, was one and the same person with " Electa Wilds," in whom appeared the record title up to the time of the conveyance by " Electa Wilder ": Hellreigel v. Manning, 97 N. Y. 66; Lynch v. Rogers, 134 N. Y. Supp. 1071, 150 App. Div. 311. Whether signing a deed by a wrong name invalidates it, when the true name is recited in the body of the deed, and the grantor also acknowledges the deed by his true name: Middleton v. Findla, 25 Cal. 76. Whether " southeasterly" could be read " southwesterly " where the deed showed that southwesterly was intended. Brookman v. Kurzman, 94 N. Y. 272; Karsel v. Cooper, 149 N. Y. Supp. 977; Barsky v. Poeey, (Del. Ch.) 9S All. 298; Clark v. Hutzler, 9 Va, 73, 30 S. E. Rep. 469; Maryland Const. Co. v. Kuper, 90 Md. 529, 45 Atl. 197. A misdescription of the boundary lines of the premises does not make the title doubtful, if the land may be clearly identified from the monu- ments and objects mentioned in the deed. Galvin v. Collins, 128 'Mass. 525. See, also, Meyer v. Boyd, 51 Hun (N. Y.), 291, 295, 4 N. Y. Supp. 328. Where a deed under which the vendor claims describes the land as being on the south side of a river, but refers to a patent which places it on the west side, and the identity of the land appears, the misdescription does not render the title unmarketable. Newsom v. Davis, 20 Tex. 419. In the deed of a married man, his name alone appeared as grantor, but the wife's name was included in the tcstimonium clause, and she signed and acknowledged the deed. Held, that the omission of the wife's name in the body of the deed did not render the title unmarketable. Atkinson v. Taylor, 34 Mo. App. 442. The validity of a recorded deed ia not affected by the failure of the notary to recognize his official seal in the tcstimonium clause of his certificate of acknowledgment. MiU-hener v. Holmes, (Mo.) 22 S. W. Rep. 1070. Whether a certificate of acknowledgment before a mayor of a town, without a seal or other evidence of authority, is sufficient, forty years' possession having been had thereunder: Brown v. Witter, 10 Ohio, 143. Whether an acknowl- edgment by a married woman before a different officer and at a different time from her husband was valid, under a statute which merely required that, "in addition" to the husband's acknowledgment, the wife should declare, etc.: Ludlow v. O'Neil, 29 Ohio St. 182. Whether the language. " Personally came A. B., the executor of the annexed deed, and acknowledged It," wa equivalent to "acknowledged the execution of the annexed deed:" OF DOUBTFUL TITLES. 837 as they appear upon the record, they must be free from reasonable Davar v. Caldwell, 27 Ind. 478. A purchaser cannot reject the title on the ground that the probate of a deed under which the vendor claims does not contain the official title of the person taking the proof, when it can be shown that he was an officer authorized to take such proof at the time. Bronk v. McMahon, 37 S. Car. 309. The fact that the clerk made a short memoran- dum of an acknowledgment by a married woman, and afterwards wrote out the certificate in full and recorded it, the death of the married woman hav- ing supervened, does not affect a title derived under such certificate. Frewitt v. Graves, 5 J. J. Marsh. (Ky.) 114. Whether a certain deed of an executor sufficiently showed authority on his part to convey, there being no recital of a power to convey therein: Doody v. Hollwedel, 48 N. Y. Supp. 93, 22 App. Div. 456. Whether a certain deed executed by the owner of a lot divided by a public highway operated to convey the grantor's interest in one of the parts to the center of the highway, without words to that effect: Pell v. Pell, 73 N. Y. Supp. 81, 65 App. Div. 388 (aff'd). In Garden City Land Co. v. Miller, 157 111. 225, 41 N. E. Rep. 753, it was held that the failure of a deed in the vendor's chain of title to mention a meridian, or the county or State in which the land conveyed was situated, did not render the title unmarketable, there being evidence to show beyond dispute what land was intended to be conveyed. Where a decree of court required the vendor to execute a deed to the purchaser, which was done, and the deed was delivered to the court to be disposed of by its future order, the fact that the grantor died before the delivery of the deed to the grantee did not affect the validity of the deed, nor justify the purchaser in refusing to accept it. Faile v. Crawford, 54 N". Y. Supp. 264, 34 App. Div. 278. The vendor was permitted to show that O. L. Hildebrandt, named as a grantor in the abstract of title, was the same person as Levi Hildebrandt, previously named in the abstract as a grantee. Hollifield v. Landrum, (Tex. Civ. App.) 71 S. W. 979. See, also, Woodward v. McCollum, 16 N. D. 42, 111 N. W. 623. Whether " B. W. Rdbbins " grantee in the chain of title, was same per- son as B. W. Robben. Evidence to show that no person of the name of B. W. Bobbins had ever claimed the land, held admissible. Robben v. Benson, (Cal. App.) 185 Pac. 200. The purchaser's objection "Hannah" in the chain of title is spelled with one " n " in the deed to her, and with two in the deed from her, is frivolous. Kane v. Borthwick, 50 Wash. 8, 96 Pac. 516, L. R. A. 18 (N. S.) 486. Whether affidavits were admissible to show that " Felkel " was intended by " Falker " in the chain of title. Atteberry v. Blair, 244 111. 363, 91 N. E. 475, 135 Am. St. Rep. 342. Whether "Jennie L. Shafer," in a transfer of title to, was the same person as " Jennie Shafer " is a transfer of title from, a party in the chain of title. Cummings v. Dolan, 52 Wash. 496, 100 Pac. 989, 132 Am. St. Rep. 989. Whether " Schultz," in a certificate of acknowledgment, could be read "Schutz." Vett v. Schwob, 111 N. Y. Supp. 286, 127 App. Div. 171. Error of the certifying officer in spell- ing the name of the party is cured by his statement in the certificate that the party is known to him to be the one who executed the deed. Vett v. Schwob, 111 N". Y. Supp. 286, 127 App. Div. 171. Whether affidavits more than 50 years old, accompanying vendor's title papers were admissible to 838 MARKETABLE TITLE TO EEAL ESTATE. doubt upon their faces, and must have been properly and legally recorded, or be such as are legally entitled to be recorded. 17 It sometimes happens that the date of a deed in the vendor's chain of title is subsequent to the date of the acknowledgment of the deed. Such a discrepancy will not of itself justify the pur- chaser hi refusing to take a conveyance of the premises on the ground that the title is not clear. The certificate of acknowledg- ment is presumed to be correct, and wiU not be controlled by the date inserted in the deed. Even if the date of the deed were inserted subsequently the discrepancy would be immaterial, because the real date of a deed is the time of its delivery, which may be sub- sequent to the acknowledgment, and even after registration. 18 show correction of spoiling of name of grantee in chain of title. Coleman v. Bruch, 117 X. Y. Supp. 582, 132 App. Div. 716. Whether error in descrip- tion of land was cured hy reference in one deed to another for further de- scription. Nelson v. Butler, (Tex. Civ. App.) 190 S. W. 811. Where the point of beginning was described as being at the intersection of the northerly, instead of the southerly side of the street. Dougherty v. Carberry, 7 Pen. (Del.) 56, 75 All. 780. Whether a description giving three sides of a rect- angular piece of land, but omitting the closing call, was sufficient. Barnum v. Lock hart, 75 Oreg. 528, 146 Pac. 975. Omission of the name of the grantee in a deed was cured by a purchase-money mortgage executed by such grantee and recorded at the same time with the deed. Heiberger v. Karfiol, 202 X. Y. 419, 95 X. E. 755. Failure of the abstract to show that grantor's wife joined in the deed with him, no valid objection where there was nothing to show that grantor had a wife when the deed was executed. Russell v. Wales, 104 N. Y. Supp. 143, 119 App. Div. 536. The title of a deceased vendor was not unmarketable from the fact that he held under a deed to himself " and his wife," not naming her she tendering a deed as executrix and also in her own right. McArthur v. Weaver, 113 X. Y. Supp. 1095, 120 App. Div. 743. " Harrass v. Kdwards, 94 Wis. 459, 69 X. W. Rep. 69. "Dresel v. Jordan, 104 Mans. 407. REGISTRATION OF DEEDS, ETC. Titles held doubtful. Whether an attach- ment levied upon land took priority over nn unrecorded conveyance of the land: Mull ins v. Aiken, 2 Heisk. (Tenn.) 535. Want of regular registration of deeds by which the vendor deduce* title, there being no other proof of their existence, is a fatal objection to the title. Bartlett v. Blanton, 4 J. J. M.ir-h. (Ky. ) 427. Where the law requires a will of lands, admitted to probate without the State, to be recorded within the State, the title will not be perfwted and marketable until such record in made. Wilson v. Tappan, tt Ohio, 172. A purchaser will not be compelled to take a title under a deed which in not recorded nor shown to have been executed a* the law require*. Hyne v. Campbell, 6 T. B. Mon. (Ky.) 286. Uarraas v. Edwards, 94 Wis. 459, 69 X. W. Rep. 09. Nor where the question is whether a recorded OF DOUBTFUL TITLES. 839 301. Construction of deeds, wills, etc. Perhaps the most difficult questions on which title to real estate depends, as between vendor and purchaser, are those which involve the true construc- tion of some instrument, such as a deed or will, which forms a part of the vendor's muniments of title. In the law of contingent remainders, executory devises, restraints upon alienation, the crea- tion of perpetuities, and the like, there are many niceties and su'btleties, concerning which, as related to the peculiar circum- stances of each case, the most learned in the law may well doubt. So, too, the true intent of a testator, whose will has been inarti- ficially and unskillfully drawn, is often a question upon which different judges may entertain different opinions. 19 And often- times, with the aid of parol evidence to explain ambiguities in a deed had been in fact delivered. Johnston v. Garvey, 124 N. Y. Supp. 278, 130 App. Div. 659. Titles held marketable. Whether an assignment of a mortgage was neces- sary to be recorded: Fryer v. Rockefeller, 63 N. Y. 268. Whether a certain conveyance recorded in the county clerk's office of New York county, but not recorded in the office of the register of deeds, was notice to a subsequent purchaser: Wagner v. Hodge, 34 Hun (N. Y.), 524. The fact that a deed under which the vendor claims is unregistered does not make the title doiibt- ful when the grantor in such deed is dead, without creditors, .and no subse- quent sale is shown, and the grantee is in possession. Cotton v. Ward, 3 T. B. Mon. (Ky.) 304. The omission of a county clerk's certificate to state the name and 1 official character of the officer taking the acknowledg- ment, may be supplied from the certificate of acknowledgment. And the absence of a date to such certificate is immaterial where not required by statute. So, also, the want of a seal to a county clerk's certificate of the official character of the certifying officer. Thorn v. Mayer, 33 N. Y. Supp. 664. The failure of a recorder of deeds to note the time when a deed was recorded will not affect the title, where the rights of no third person are concerned. Thorn v. Mayer, 33 N. Y. Supp. 664. The fact that a court commissioner's deed in the chain of title had been lost or mislaid, was no objection to the title the commissioner standing ready to execute another deed. Sutton v. Davis, 143 N. C. 474, 55 S. E. 844. It is no objection to a title under a patent that the patent had not been recorded in the county where the land lies. Doppelt v. Geliebter, 173 111. App. 634. The fact that a deed in the vendor's chain of title was not attested in such manner as to entitle it to record, did not justify the purchaser in rejecting the title, in the absence of anything to show that the title had been prejudiced by the registration of the deed on an insufficient attestation. 'Cowdrey v. Greenlee, 126 Ga. 386, 55 S. E. 918. "Wilson v. Vogel, 87 N. J. Eq. 584, 101 Atl. 173. 840 MARKETABLE TITLE TO REAL ESTATE. will, it is impossible to determine, beyond a reasonable doubt, to what persons or things the testator refers. 10 * CONSTRUCTION OF INSTRUMENTS Titles held doubtful. Whether in a certain case there was an unlawful suspension of the power of alienation: Beams v. Mela, 10 X. Y. Supp. 429, 58 Hun (N. Y.), 588. Whether in a certain case the purchaser was required to see to the application of the purchase money: Garnett v. Macon, 6 Call (Va,), 308. St. Mary's Church v. Stockton, 8 X. J. Eq. 520. Whether a certain devise was governed by the rule in Shelley's case: Doebler's Appeal, 14 P. F. Smith (Pa.), 9. Mon- aghan v. Small, Rich (X. S.) (S. C.) 177. Whether a certain deed abso- lute in form was in fact a mortgage: Cunningham v. Sharp, 11 Humph. (Tenn.) 116. Whether the designation of certain premises on a map of lots as a " wharf," and certain acts in connection therewith, amounted to a dedication of such premises to the uses of the prospective buyers of adjoin- ing lots: Hymers v. Branch, 6 Mo. App. 511. Whether certain language in a deed was sufficient to show that the grantor intended thereby to convey his interest in a highway subject to the public me: Lee v. Lee, 27 Hun (N. Y.), 1. See, also, Mott v. Mott, 68 N. Y. 246; In re Ladue, 54 N. Y. Super. Ct. 528. Whether a quit claim or release by a married woman to a stranger will operate to divest her inchoate right of dower: Merchants' Bank v. Thomson, 55 N. Y. 7. Whether an inchoate right of dower is merged in a conveyance by the husband to the wife: People v. Life Ins. Co., 66 How. Pr. (X. Y. ) 115. Whether a husband took a life estate or a fee under his wife's will: Butts v. Andrews, 136 Mass. 221. Whether a limitation over after the determination of a life estate was, in a certain case, void for remoteness: Lowry v. Muldrow, 8 Rich. Eq. (S. C.) 241. Whether a cor- poration under a conveyance to its president, " his successors and assigns," but without words of inheritance, took an estate in fee: Cornell v. Andrews, 37 X. J. Kq. 7. Whether a devisee took the estate with absolute power of alienation: Cunningham v. Blake, 121 Mass. 333; Starnes v. Allison, 2 Head (Tenn.), 221. Whether certain language in a will created an abso- lute or a conditional fee: Goerlitz v. Malawista, 56 Hun (N". Y.), 120; 8 X. V*. Supp. 832. Certain doubts arising upon the true construction of a wilt held sufficient to make the title doubtful: Sims v. McKlroy, 39 N. Y. St. Rep. 324, 14 X. Y. Supp. 241. Whether a certain assignment of a mort- gage to the mortgagor as "trustee" amounted to an absolute release of the mortgage: Sturtcvant v. Jaques, 14 Allen (Mass.), 523. Whether certain posthumous children of a testator were entitled to take under his will: Kilpatrick v. Barron, 125 N. Y. 751, 26 N. E. Rep. 925. Whether a certain remainder created by will was vested or contingent: Xelson v. Russell, 61 Hun (X. Y.). 528, 16 X. Y. Supp. 395; Ranhofer v. Realty Co., 126 N. Y. Supp. 230, 143 App. Div. 237. Whether a limitation of a fee upon a fee by way of executory devise was valid. The devise, was held valid, and the title of one claiming under the first devise wan held to he not such as a purchaser could lie compelled to take. Smith v. Ki mini 11, (111.) 38 N". E. Rep. 1029. Whether a certain trust authorized a sale of the tnnt subject Op DOUBTFUL TITLES. 841 302. Competency and authority of parties to deeds. The competency, power or authority of those who undertake to execute conveyances of lands, constitutes a most fruitful source of objec- tions to title. The question -may be one of fact, as whether the grantor was a minor, a lunatic or a married woman, or it may be a question of law, as whether the courts of one State have power and authority to appoint a commissioner to sell and convey lands in a sister State, or whether one conveying in pursuance of a power has exceeded his authority. A title dependent upon a con- veyance executed by one admitted to be an infant or a person non compos mentis is absolutely bad, for such a deed is void. But if the fact of infancy or the want of contractual capacity 'be in dis- pute, and there be a reasonable doubt as to the existence of either, then the title is technically doubtful or unmarketable, and the purchaser will not be required to complete the contract. In a case in Kentucky, the court held that a title should not be declared doubtful because of the alleged insanity of a remote grantor, if the fact of insanity was left in doubt at the final hearing, nor, if insanity be fully established, unless it appear that the deed of such grantor had been in fact set aside, or probably would be in after the beneficiaries reached the age of twenty-one: Paget v. Melchoir, 58 N". Y. Supp. 913, 42 App. Div. 76. Whether, upon a true construction of the testator's will, his executors were authorized to sell his realty before his son arrived at the age of 21: Clouse's App., 192 Pa. 108, 43 Atl. 413. Whether a devise to A. " for his use, benefit, and behoof, in trust for his children " vested an estate in fee in A. on the theory that the language used was insufficient to create a trust estate: Marks v. Halligan, 70 N". Y. Supp. 444, 61 App. Div. 179. Whether a devise to testator's wife for life, the property " or what remains thereof " to go to a son in remainder, gave the widow an absolute power to sell and dispose of the property: Richards v. Knight, 64 N. J. Eq. 196, 53 Atl. 452. Whether, in a case of a limitation over upon the death of another, death in the lifetime of the testatrix was in- tended. Fisher v. Eggert, (N. J. Eq.) 64 Atl. 957. Whether a certain con- dition in a deed by heirs, requiring the payment of their ancestor's debts, was a condition subsequent. Koch v. Streuter, 232 111. 594, 83 N. E. 1072. To what period the happening of a contingency, prescribed in a will, referred. Brant v. Clifford, (N. J. Eq.) 84 Atl. 206. Whether, in a devise, the words " lawful heirs " were to be construed the equivalent of " children." Harris V. Weed, 89 Conn. 214, 93 Atl. 232. Whether a devise of testator's realty to his wife was affected by the birth of a child to him after the execution of the 106 842 MARKETABLE TITLE TO EEAL ESTATE. proceedings already instituted for that purpose. 21 It is not easy to reconcile this decision with the rule that a purchaser cannot be compelled to take a title which will proba'bly expose him to litigation. The same observation will apply to a decision that the incapacity of a corporation to take and hold real estate, does not will. Moore v. Elliott, 76 Wash. 520. 136 Pac. 849. Whether, under the true construction of a will, a fee vested in the children of testator living at the time of his death. Williams v. Bricker, 83 Kan. 53, 109 Pac. 998. Titlfs held marketable. Whether in a certain case there was an unlawful suspension of the power of alienation: Kelso v. Lorillard, 85 N. Y. 177; Rice v. Barrett, 102 N. Y. 161, 6 N. E. Rep. 898. Cushing v. Spalding, 164 Mass. 287, 41 N. E. Rep. 297. Whether a conveyance by one of two devisees in remainder to the other with general warranty passed the interest of the grantor in remainder by estoppel to the other remainderman: Vreeland v. Blauvelt, 23 X. J. Eq. 483. Whether a certain limitation over upon the death of the first taker without issue was void for remoteness: 'Miller v. Macomb, 26 Wend. (N. Y.) 229. A testator devised his estate to his "wife for life, but made no disposition of the remainder. Testator died without children or descendants, and the property having passed to the wife as heir at law, a purchaser from her was compelled to take the title. Lemon v. Rogge, (Miss.) 11 So. Rep. 470. Whether certain language in a deed or will created a life estate or a fee in the grantee or devisee: Cassel v. Cook, 8 S. & R, (Pa.) 268, 11 Am. Dec. 610. Whether a legacy in a certain case was an equitable charge on lands embraced in a residuary devise of the estate: Wilteie v. Shaw, 29 Hun (N. Y.), 195. Whether a recital in a conveyance to school trustees " for the uses and purposes of the school dis- trict upon which to erect a schoolhouse" created a condition on which the property was to be held: Board of Education v. Reilly, 75 N. Y. Supp. 876, 71 App. Div. 468. Whether, in a certain case, a trustee should have been appointed to hold the legal title of property devised in trust, and make conveyances of the same: Cushing v. Spalding, 164 Mass. 287, 41 N. E. Rep. 297. Whether a sale of land charged with legacies operated to discharge the legacies: Waddell v. Waddell, 68 8. C. 335, 47 S. E. Rep. 375. Whether a conveyance in pursuance of a power was insufficient in that it did not refer to the power. Marden v. Leimbach, 115 Md. 206, 80 Atl. 958. Whether a power to testator's wife to dispose of his property as she saw fit, authorized a sale of his property by her. Welsh v. Davis, 125 Md. 37, 93 Atl. 221. Whether certain words in a will created a power to appoint testator's lands in fee. Mabry v. Brown, 16? N. C. 217, 78 E. E. 76. Whether the birth of a child to a devisee extinguished a condition subsequent that the devisee should have issue. Louisville CJas Co. v. Starin, 170 Ky. 819, 186 S. W. 660. Estates tail having been converted into fees simple by statute, it is no objection to the title that a deed, in the chain if title, was to the grantee " and her bodily heirs." Harrington v. Grimes, 163 N. C. 76, 79 S. E. 301. "Hunt v. Weir, 4 Dana (Ky.), 347. OF DOUBTFUL TITLES. 843 affect the validity of a title derived through the corporation, 22 unless it was thereby intended to decide that the State could not 22 Mo. Valley Land Co. v. Bushnell, 11 Neb. 192, 8 N". W. Rep. 389. COMPETENCY, POWER OR AUTHORITY OF PARTIES Titles held doubtful. In the following cases questions of law or of fact as to the authority or com- petency of parties to convey were held to render the title unmarketable: Whether a conveyance was executed by a person non compos mentis: Freetly v. Barnhart, 51 Pa. St. 279; Stobert v. Smith, 184 Pa. St. 34, 38 Atl. Rep. 1019; Brokaw v. Duffy, 165 1ST. Y. 391, 59 N. E. Rep. 196. Whether a power of sale conferred upon an executor can be exercised* by his executor: Chambers v. Tulane, 9 N. J. Eq. 146. Whether a private act of the legis- lature empowering a life tenant to sell the remainder and convey a title in fee, was binding upon the remainderman: Bumberger v. Clippinger, 5 W. & S. (Pa.) 311. Whether a personal representative had power to assign a bid made by his intestate at a public sale: Palmer v. -Morrison, 104 N". Y. 132, 10 N. E. Rep. 144. Whether a conveyance of lands lying in one juris- diction, by an officer acting under the orders or decree of a court of another jurisdiction, is valid: Contee v. Lyons, 19 D. C. 207; Watts v. Waddle, 1 McLean. (U. S.), 200. See Corbett v. Nutt, 10 Wall. (U. S.) 464, and Watkins v. Holman, 16 Pet. (U. S.) 57. Whether a deed executed in pursu- ance of a parol power of attorney was sufficient to pass title: Jackson v. Murray, 5 T. B. Mon. (Ky.) 184,, 17 Am. Dec. 5.3. Whether the deed of a married woman executed by power of attorney as to which she was privily examined, was sufficient to pass her inchoate right of dower: Lewis v. Coxe, 5 Harr. (Del.) 401. Whether .power of sale to executors, extended to lands of the testator which he had devised, but as to which the devise failed to take effect: Chambers v. Tulane, 9 N. J. Eq. 146. Whether a power of sale to executors had terminated : Bruner v. -Meigs, 64 N. Y. 506. Whether an executor in a certain case had power under the will to sell realty: Alkus v. Goettmann, 39 N. Y. St. Rep. 324; S. C., 14 N. Y. Supp. 241; Droge v. Cree, 39 N. Y. St. Rep. 264; S. C., 14 N. Y. Supp. 300; Warren v. Banning, 21 X. Y. Supp. 883. Whether one of several joint executors had renounced his trust, the validity of a sale by the other executors under a power, being dependent upon such renunciation: Fleming v. Burnham, 100 N. Y. 1; 2 N. E. Rep. 905. Whether executors acting under a power had sold more land than was necessary for the purposes of the testator: Townshend v. Goodfellow, 40 Minn. 312, 41 N. W. Rep. 1056. Whether a deed executed by one of two joint executors was sufficient the will requiring the execu- tors to act jointly in the settlement of the estate: House v. Kendall, 55 Tex. 40; Hilton v. Sowenfeld, 104 N". Y. Supp. 942-. Whether a sale by an assignee in bankruptcy without an order of court was valid: Palmer v. Morrison, 104 N. Y. 132, 10 N. E. Rep. 144. Whether certain trustees of a religious society were competent to convey a good title, under a private act authorizing them to sell and convey, the property being liable to revert to the grantor if diverted from the purposes of the grant: Second Universalist Soc. v. Dugan, 65 Md. 460, 5 Atl. Rep. 415. Whether a church organization was competent to convey a fee where the title was vested in the church's " trustees 844 MARKETABLE TITLE To REAL ESTATE. insist upon a forfeiture of the estate in the hands of the grantee and their successors in office forever," and there was no conveyance from the trustees to the church: -M. E. Church v. Roberson, (N T . J. Eq.) 58 Atl. Rep. 1056. Whether, upon a true construction of testator's will, his executors were authorized to sell and convey his realty before his son reached the age of twenty-one. House's App., 192 Pa. St. 108, 43 Atl. Rep. 413. Whether a married woman was competent, under the laws of Missouri, to execute a con- veyance of her separate estate without her husband joining therein: Kennedy v. Koopman. 166 Mo. 87, 65 S. W. Rep. 1020. Whether, in a case in which testatrix created a trust in favor of a son, with power in him to dispose of the property at his death by will, but did not name a trustee, the son was competent to convey the legal title. McDougall v. Dixon, 46 N. Y. Supp. 280, 19 App. Div. 420. A power of attorney defectively acknowledged will not be held good as between the parties, if there be no other evidence of the execution of the power than the defective acknowledgment; and a title dependent on such power is not marketable. Freedman v. Oppenheim, 81 N. Y. Supp. 110, 80 App. Div. 487. In a case in which the title depended on the power of a religious corporation to convey land, and the purchase money was to be reinvested in other lands in trust for the corporation, the purchaser was re- lieved. St. Mfery's Church v. Stockton, 9 N. J. Eq. 520. A sheriffs deed is insufficient to support a title thereunder, unless a record of the judgment and execution under which the sheriff acted, can be produced. Hampton v. Specknagle, 9 S. & R. (Pa.) 212, 11 Am. Dec. 704; Weyand v. Tipton, 5 S. & R. (Pa.) 332; Wilson v. McVeagh, 2 Yeates (Pa.), 86. Distinguish Burke v. Ryan, 1 Dall. (U. S.) 94, where possession had gone with the deed for more than thirty years. In Smith v. Moreman, 1 T. B. Mon. (Ky.) 155, the vendor, complainant in a suit for specific performance, alleged that he held title under an execution sale, .but failed to produce a judgment on which the execution issued, and his bill was dismissed. In Abbott v. James, 111 N. Y. 673. 19 N". E. Rep. 434, -there was a devise of an entire estate in remainder to char- itable societies, with power to the executor *to sell the real estate and divide the proceeds among the societies. I'nder the laws of New York the devise was invalid, except as to one-half of the testator's estate. After the precedent estate determined, the executor sold the real estate under the power, but the title was held unmarketable: (1) Upon a question of fact, namely, the ability of the heirs to show that there was personal property enough to satisfy the devise to the societies; and (2) upon a question of law, namely, whether 'the power of sale failed as to so -much -of the real estate as could not pass to the charitable societies. A purchaser cannot be compelled to take a title de- pendent on a conveyance of a homestead estate to which the grantor's wife was not a party. Castleberg v. Maynard. 95 N. C. 281. Whether an executor had power to exchange instead of selling property. Turco *v. Trimboli, 137 N. Y. Supp. 343, 152 App. Div. 431. Whether a sale and conveyance by executors, and, on the same day, a reconveyance by their grantee to one of them, was a valid transaction. Weintraub v. Seigel. 109 N. Y. Supp. 215, reversed on the evidence, 118 N. Y. Supp. 201, 133 App. Div. 677. See, also, Prentice v. Townsend, 127 N. Y. Supp. 1060, 143 App. Div. 151. Whether OF DOUBTFUL TITLES. 845 of the corporation. The purchaser will not be required to take a deed in the chain of title executed by a husband, was liable to be over- turned in a divorce proceeding by the wife. Singleton v. Close, 130 Ga. 716, 61 S. E. 722. Where the record failed to -show connection between two sets of trustees in the chain of title the one set being grantees in one deed, and the other set grantors in a later deed. Reffon Realty Co. v. Adams L. Co., 128 Md. 656, 98 Atl. 199. Whether insanity of the wife of the vendor of community property rendered the vendor's title unmarketable. Colpe v. Lindblom, 57 Wash. 106, 106 Pac. 634. Whether certain Indians, through whom title was claimed, were of mixed blood. Geray v. Mahnomen Land Co., (Minn.) 173 N. W. 870. Whether an executor had power to accept stock in payment for land. Montrose Realty Co. v. Zimmerman, (N. J. Eq. ) 73 Atl. 846. Whether a sale by the trustee of a charity, without the authority and approval of a court, was valid. Seif v. Krebs, 239 Pa. 423, 86 Atl. 872. Titles held marketable. Whether an act authorizing administrators c. t. a., to execute powers of sale, validated a sale under a will which- was probated before the passage of the act: Blakemore v. Kimmons, 8 Baxt. (Tenn.) 470. Whether a certain will charged the testator's realty with the payment of his debts, and whether a power of sale was conferred on the executor: Coogan v. Ockershausen, 55 N. Y. Super. Ct. 286. Whether a power of -sale in a convey- ance to trustees for the benefit of a married woman was repugnant to the trust: Belmont v. O'Brien, 2 Kern. (N. Y.) 394. Whether a conveyance by an infant trustee under decree of court is valid : Thompson v. Dulles, 5 Rich. Eq. (S. C.) 370. Whether a power of sale had been properly executed: Saunders v. Guille, (Tenn. Ch.) 37 -S. W. Rep. 999. Whether the deed of a corporation must show authority of officers to convey: Womack v. Coleman, 89 Minn. 17, 93 N. W. Rep. 663. Whether a certain devise to a religious corporation in 1882, in Xew York, was within the statutory limit, no question as to the validity of the devise having been raised by the heirs for more than fifteen years: Moskowitz v. Hornberger, 46 N. Y. Supp. 462, 20 Misc. Rep. 558. Whether a conveyance by trustees of the " Society of Shakers " verbally approved, was valid without formal action by the ministry and elders: Feiner v. Reiss, 90 N. Y. Supp. 568, 98 App. Div. 40. % Whether, in a case in which the grantor, who had declared a trust reserving to himself the right to sell and convey the premises could convey an -absolute estate, the beneficiary not joining in the deed: Griffith v. Maxfield, 66 Ark. 513, 51 S. W. Rep. 832. Whether a power of sale in the executors continued after all debts and lega- cies were paid: Hatt v. Rich, 59 N. J. Eq. 492, 45 Atl. 969. Whether a power of sale to executors embraced not only -the territorial extent of the testator's lands -but -also all his interest in such lands: Hatt v. Rich, 59 N. J. Eq. 492, 45 Atl. Rep. 969. Whether, in a case in which land had been sold by a referee under a decree of court to carry out the provisions of the will, the referee 'was competent to convey the title, and a deed from the executor 'was unnecessary: Straus v. Benheim, 59 N. Y. Supp. 1054, 28 Misc. Rep. 660. Whether the declaration in a will that testatrix has only one child living is sufficient proof of that fact: Revol v. Stroudback, 107 La. 225, 31 So. Rep. 665. The fact that the maker of a power of attorney was described 846 MARKETABLE TITLE TO HEAL ESTATE. a title dependent upon a conveyance by a trustee, indirectly, to therein as "Mrs." when she did not sign as "Mrs." did not render the title unmarketable, there being testimony that she was unmarried. Revol v. Stroudbaek, 107 La. 295, 31 So. Rep. 665. Where property was devised in trust for the benefit of a daughter, but by codicil the trust was revoked and the devise to the daughter made absolute and unqualified, the power of the daughter to convey cannot be disputed, and a purchaser must take the title. Scnning v. Bush, 23 Ky. Law R. 65, 62 S. W. Rep. 489. Defective execution of a power of sale under a will, held no objection to the title thereunder, where no one, -for more than forty years, has attempted to take advantage of the defect, Binzen v. Epstein, 69 N. Y. Supp. 789, 58 App. Div. 304 (aff'd). Where a statute authorized personal representatives to specifically perform contracts for the sale of lands made by the testator or intestate during his lifetime, the fact that a testator devised all of his lands to his children, does not make doubtful or unmarketable the title which a purchaser of a part of such lands from the testator in his lifetime, will receive from the executor. The statute practically avoids the devise. Hyde v. Heller. 10 Wash. 586, 39 Pac. Rep. 249. The possibility that probate of a will may be revoked, will not affect the title of a purchaser from the executors under a power of sale, when no facts appear showing that probate will probably be revoked. Xor is the title invalidated by a failure of the executors to distribute the proceeds of the sale among those entitled. Seldner v. McCreery, 75 >Md. 287, 23 Atl. Rep. 641. In Baker v. Shy, 9 Heisk. (Tenn.) 89, the alienage of the vendor's grantor was held not to render the title unmarketable. A title derived through a grantor who held for an alien, will not be held doubtful or unmarketable because the grantor had conveyed without a previous request from the alien, though he had covenanted with the alien to convey only upon such request. Ludlow v. Van Ness, 8 Bosw. (N. Y.) 178. Whether, where one of two executors qualified, the one so qualifying could exercise a power of sale given them by the will. Heiferman v. Scholder, 119 X. Y. Supp. 520, 134 N. Y. Supp. 579. Whether the purchase and foreclosure of a mortgage on the estate by the executor was valid the beneficiaries of the estate hav- ing received the full benefit ^of the transaction. Weidenhold v. Koehler, 100 N. Y. Supp. 927, 174 App. Div. 139. Whether the invalidity of a sale by executors to one of themselves, was discounted, as an objection to the title, by the passage, of the title through intervening innocent purchasers for value. Weintraub v. Seigel, 118 N. Y. Supp. 261, 133 App. Div. 677. Whether acquiescence by executors in a partition sale was sufficient in the place of a nale by them under a power in the will. Tolosi v. Lese, 104 N. Y. Supp. 1095, 120 App. Div. 53. Whether a power of sale could be executed by surviving executors. Danaher v. Hildebrand, 131 N. Y. Supp. 127, 72 Misc. Rep. 240. Whether executors could, umler a power of sale, reconvey mortgaged prop- erty to the mortgagee in satisfaction of the mortgage. Clody v. SouthnH, 109 N. Y. Supp. 411. Whether an executor had power under the will to sell realty. Odell v. ClauMCti, 104 N. Y. Supp. 1104, 120 App. Div. 635; Con- nelly v. Putnam, 51 Tex. Civ. App. 233, 111 8. W. 164. Whether an oral declaration of trust, being invalid under the statute of frauds, rendered the vendor's title unmarketable. Eisler v. Halpern, 85 N. J. L. 139. 88 Atl. 831. OF DOUBTFUL TITLES. 847 himself; as where the trustee conveyed to a stranger, and the stranger reconveyed to him. 23 303. Title as dependent upon testacy or intestacy. Debts of decedent. The bare possibility that a will may be discovered after the death of a decedent, does not render title by descent from him unmarketable. 24 Nor, it is apprehended, would the possi- bility of the discovery of a later will, where he dies testate, have that effect, unless there were circumstances sufficient to raise a reasonable doubt as to the existence of such a will. And a bare possibility that a decedent may have left debts for which his property would be liable, does not render the title of the heir doubtful, in the absence of anything to show the probable existence of such debts. 25 Whether a release signed by one of two mortgagees, who were partners, was sufficient. Bachman v. Ennis R. E. & Inv. Co., 199 Mo. App. 674, 204 S. W. 1115. Where will directed property to be sold after death of life tenant and proceeds paid to remainderman, joinder of life tenant and remainderman in the deed made the title good. Sprowl v. Blankenbaker, (Ky. ) 127 S. W. 496. Whether the affidavit of a grantee in the chain of title was admissible to supply the failure of the abstract to show whether such grantee was married or single when she acquired title. Singer v. Investment Co., 60 Wash. 674, 111 Pac. 886. Whether a party was estopped by his conduct to enforce a building regulation. Zelman v. Kaupherr, 76 N. J. Eq. 52, 73 Atl. 1048. Whether a certain act revoking the charter of the vendor, a corporation, was constitutional. Diamond State Iron Co. v. Husbands, 8 Del. Ch. 205, 68 Atl. 240. M Gosman v. Pfistner, 80 N. J. Eq. 432, 83 Atl. 781. 24 Moser v. Cochrane, 107 N. Y. 35, 13 N. E. Rep. 442; Schermerhorn v. Niblo, 2 Bosw. (N. Y.) 161; Dis-brow v. Folger, 5 Abb. Pr. (N. Y.) 53; Mc- Dermott v. McDermott, 3 Abb. Pr. (N. S.) (N. Y.) 451, dictum. ^Moser v. Cochrane, 107 N. Y. 35, 13 N. E. Rep. 442; Spring v. Sandford, 7 Paige (N. Y.), 550; Keitel v. Zimmerman, 43 N. Y. Supp. 676, 19 Misc. Rep. 581; Garden City L. Co. v. Miller, 157 111. 225, 41 N. E. Rep. 753; Moore v. Taylor, (Md.) 32 Atl. Rep. 320; Wynkoop v. Shoemaker, 37 App. D. C. 258. The bare possibility of the existence of debts, or of omitted or posthumous children, does not make unmarketable a title founded on a sale by executors. Spencer v. Lyman, 27 S. D. 471; 131 N. W. 802. The fact that there was no probate settlement of the estate of one of the grantors in the chain of title, did not make the title unmarketable. Van Gundy v. Shewey, 90 Kan. 253; 123 Pac. 720; 47 L. R. A. (N. S.) 645. In Kling v. Realty Co., 166 Mo. App. 190, it was held that it was incumbent upon the vendor to show that there were no such debts. In Disbrow v. Folger, 5 Abb. Pr. (N. Y.) 53, the title was referred to a master for the purpose of ascer- taining whether any such debts existed. 848 MARKETABLE TITLE To REAL ESTATE. In a case in which title was claimed- under a will executed in 1861, but not found until 1892, and not offered for probate until 1899, after objections to the title had been raised by a purchaser at a mortgage sale, it was held that the purchaser could not be compelled to take the title until the validity of the will had been adjudicated by a competent tribunal. 26 And in a case in which there had been no administration of the estate of a decedent through whom the title hadr descended, and a sufficient time had not elapsed to raise a presumption that administration would not yet be granted, the mere failure of the purchaser to show that there were debts due *by the estate, was held no ground on which to compel him to take the title. 27 But if an estate be ultimately liable to the payment of legacies, in case the personalty prove insufficient, the purchaser cannot be compelled to take the title." It is presumed that no person died without heirs; consequently a vendor, claiming under an escheat to the State for want of heirs, must show that decedent left no heirs competent to take the land by descent. 29 303o, Title under tax laws. As tax titles depend upon a strict compliance with all the provisions of law under which tax sales are made, and as such sales have been held invalid for the most trifling matters, e. g., the omission of the dollar mark from the head of a column of figures showing the amount of delinquent taxes in the advertisement of sale, 80 such titles have come to be looked upon with distrust and suspicion. But the mere fact that the vendor holds under a tax title will not justify the purchaser in rejecting the title as unmarketable in those States in which tax Chew v. Tome, 93 Md. 244; 48 AtL Rep. 701. "Chauncey v. Leominster, 172 Mam. 340; 52 X. E. Rep. 719. See, also, Ogooshevitz v. Arnold, 197 Mich. 203; 163 N. W. 946. The interest of a deceased purchaser who made partial payments on the land is realty, and his widow, who completed the purchase and took a deed, could not convey a marketable title. Abate v. Bianco, 128 N. Y. Supp. 271; 143 App. Div. 511. As to validity of title dependent upon purchase from an heir where no will has been probated, see Werner v. Wheeler, 127 N. Y. Supp. 158; 142 App. Div. 358. " 1 Sugd. Vend. (8th Am. ed.) 572. Dickinson v. Dickinson, 3 Bro. C. C. 19. See, aUo, Platt v. Newman, 71 Mich. 112; 38 N. W. Rep. 720. "In re Clark, 116 -N. Y. Supp. 101; 131 App. Div. 688. "Coombs v. O'Neal, 1 MacArth. (D. C.) 405. OF DOUBTFUL, TITLES. 849 sales are by statute declared to be prima facie valid. He must be able to point out some particular fact, or show the reasonable probability of the existence of some fact, which would raise a fair question as to the validity of such sale. 31 An outstanding tax title does not render the title to the land unmarketable if entry thereunder be barred by lapse of time. 32 There is, at least, one advantage in a tax title. The tax deed, being a grant from the State and evidencing a new and inde- pendent title, cuts off all such objections to the title as failure of the abstract to show competency of parties in the chain of title ; the existence of apparently unsatisfied incumbrances ; and many other objections too numerous to mention. 33 304. INCTJMBRANCES. As a general rule an incumbrance upon the premises, so long as it may be removed by application of the purchase money, or where the vendor being solvent, offers 31 Gates v. Parmly, 93 Wis. 294; 66 N. W. Rep. 253; 67 N. W. Rep. 739. Chopin v. Pollet, 48 La. Ann. 1186; 20 So. Rep. 721. Mere possibility that notice of the tax sale was not given the owner, does not make the title there- under doubtful. Rosenblum v. Eisenberg, 108 N. Y. Supp. 350; 123 App. Div. 896. The fact that the tax payer remains in possession of the premises, makes the title under the tax sale unmarketable. In re Safe Dep. & Tr. Co., 125 Md. 519; 94 Atl. 93. Where the abstract failed to show any judgment, precept, or affidavit on which' a tax deed in the chain of title was based, and there was no proof of possession and payment of taxes under the deed, the title was held unmarketable. Koch v. Streuter, 232 111. 594; 83 N. E. 1072. In Matney v. Ratliff, 96 Va. 231; 3d S. E. Rep. 512, it appeared that a grantee of the Commonwealth had failed to enter the granted lands on the tax books and to pay taxes thereon for a number of years, in consequence of which the lands were forfeited to the Commonwealth. It was held no objec- tion to the title of a subsequent grantee of the Commonwealth that there was no judgment, decree, inquest, or other matter of record showing the forfeiture of the lands to the Commonwealth by default of the first grantee. In Fitz- patrick v. Leake, 47 La. 1643; 18 :So. Rep. 649, it was held that the pur- chaser could not be compelled to take the title unless the tax deed was produced and' its prima facie effect was unimpaired by testimony. Where the vendor held under a tax sale, with a right in minors and others not sui juris to redeem from the sale within a year after removal of disabilities, it was held that an agreement by him to perfect the title was not performed by obtaining a decree quieting his title against unknown claimants. Williams v. Doolittle, (Iowa) 88 N. W. Rep. 350. ^Gosman v. Pfistner, 80 1ST. J. Eq. 432; 83 Atl. 781. 33 Wilson v. Korte. 91 Wash. 30; 157 Pac. 47. 107 850 MARKETABLE TITLE TO REAL ESTATE. to remove it or may be compelled to do so, furnishes no ground upon which the purchaser may refuse to complete the contract, or recover damages against the vendor. 34 But if both parties enter into the contract with the express understanding that the prem- ises are free and clear of incumbrances, it may be doubted whether the purchaser would be compelled to take subject to an incum- brance, even though it could be discharged out of deferred pay- ments of the purchase money. 35 If, however, the purchase money be presently due and the vendor can produce some one who is competent to receive payment of the incumbrance and execute a release or satisfaction piece, no reason is perceived why the pur- chaser should not be compelled to complete the contract. 38 The cases in which the existence of an incumbrance upon the premises will justify the purchaser in refusing to go on with the purchase, until the objection be removed, may be thus classified : (1) Those in which the existence of the incumbrance is admitted, or free "Ante, 245. Post, 308. 2 Sugd. Vend. (8th Am. ed.) 25 (425). The general rule is that a pecuniary charge upon the estate presents no objection to the title if the purchaser can be protected against it. fox v. Cmonton, 31 Beav. 378; Wood v. Mnjoribanks, 3 De G. & J. 329; 7 H. L. Cas. 808. Tiernan v. Roland, 15 Pa. St. 441; Pangborn v. Miles, 10 AM.. X. Cas. (X. Y.) 42; Ditchey v. Lee, 167 Ind. 267; 78 N. E. 972; Krtp.rs v. Yocum, 84 Kan. 554; 114 Pac. 1063; Boyd v. Hoffman, 241 Pa. 421; 88 Atl. 675; Foor v. Bank A Tr. Co., 144 Ky. 682; 139 S. W. 840. Wren v. Cooksey, 147 Ky. 825; 146 S. W. 1116; Brewer v. Herbert, 30 M<1. 301 ; 96 Am. Dec. 582, a case in which the decree provided that the incumbrance, a judgment against the vendor, be paid out of the purchase money. The vendor had also appealed from the judgment and executed an appeal bond covering the judgment and coats. Karker v. Haverly, 50 Barb. (N. Y.) 79; Chambers v. Tulane, 9 N. J. Kq. 146; Spencer v. Sandusky, 46 W. Va. 582; 33 S. E. Rep. 221. An obvious reason for this position is, that the existence of the incumbrance might pre- vent an advantageous resale by the purchaser. Besides if the purchaser. fr reasons satisfactory to himself, chooses to in-Ut ii|> upon a literal performance of the agreement? Armstrong v. Coal Co., 67 W. Va. 580; 69 8. E. 195; Cooper v. Rutland, 99 S. C. S3. s_- s. K. IM. In Rothwell v. Schmidt, 248 111. 586; 94 X. K. S2, it was held that the court erred in entering a decree which required the purchaser to pay the purchase money and take the title, and required the vendor to pay off two mortgage* out of the purchase money. "Webster v. Kings Co. Trust Co., 80 Hun (N. Y.), 420; 30 N. Y. Supp. 357. OF DOUBTFUL TITLES. 851 from doubt; and (2) those in which the fact or existence of the incumbrance is a matter of doubt or dispute. 305. (i) Admitted incumbrances. We have seen that an admitted pecuniary charge or lien upon the premises will excuse the purchaser from completing the contract unless the purchase money can be applied to its removal without subjecting him to loss, inconvenience or expense. 37 The vendor has a right to per- fect the title by removing incumbrances. 38 Strictly speaking, an incumbrance is not a defect in the title to an estate, 39 though such a defect may amount to an incumbrance. The technical legal definition of the word "incumbrance," as it relates to real property, is, any right to or interest in the land granted, to the diminution of the value of the land, but consistent with the passing of the fee by a conveyance of the land. 40 Hence, technically the legal title may be perfect, though the estate be incumbered to its full value, for the incumbrances may be paid off and the incumbrancer compelled to execute a release. But, if the title be imperfect, if the better right be outstanding in a stranger, there is no way in which his claim can be quieted with- out his consent. The courts, however, speak indifferently of incumbrances as well as adverse claims as constituting defects of title, and for all practical purposes they may be so regarded, especially if they be of the irremovable kind, such as easements, rights of way and other incorporeal rights. A purchaser cannot be compelled to complete his purchase or accept the title if there is an incumbrance on the property which the vendor cannot or will not remove, and which the purchaser cannot himself remove by an application of the purchase money. 41 Of this kind are easements, servitudes, rights of way, 42 reser- 37 Ante, 245. "Post, ch. 32; ante, ch. 19. 19 Heimburg v. Ismay, 35 N. Y. Super. Ct. 35. Stephen's Appeal, 87 Pa. St. 207; Tiernan v. Roland, 3 Harris (Pa.), 441. "Prescott v. Trueman, 6 Mass. 627; 3 Am. Dec. 249. 41 1 Sugd. Vend. (8th Am. ed.) 473 (312). 42 Shackelton v. Sutcliff, 1 De G. & Sni. 609; Scripture v. Morris, 56 N. Y. Supp. 476; 38 App. Div. 377; Kerrigan v. Backus, 74 N. Y. Supp. 906; 69 App. Div. 329; Scott v. Beutel, 23 Grat. (Va.) 873; Hart v. pandlin, 43 Mo. 171, where, however, the purchaser was deemed to have waived the 852 MARKETABLE TITLE TO REAL ESTATE. objection. Pryor v. Buffalo, 112 N. Y. Supp. 437; White v. Savings Bank, 171 N". Y. Supp. 426; Prentice v. Erskine, 164 Cal. 446; 129 Pac. 585 (irriga- tion ditch, and dedication of right of way across the premises) ; Tandy v. \Vai-sch, 154 Cal. 108; 97 Pac. 69; Wingard v. Copeland, 64 Wash. 214: 116 Pac. 670; De Voney v. Chiappi, 192 111. App. 437. Right of way reserved by railway company justifies rejection of title by purchaser. Dorsch v. Andrus, 111 >Min. 287; 126 N. W. 1071; S. C. 133 N. W. 480. A right of way disused and fenced across for more than twenty-one years, is no objec- tion to the title. Clody v. Southard, 109 N. Y. Supp. 411. Proceedings by a railway company and Us pendens to condemn a right of way through the premises, justify the purchaser in rejecting the title, though he might be entitled to receive the condemnation money. Miller v. Calvin Philips & Co., 44 Wash. 226; 87 Pac. 264. Telephone line, visibly in operation on the premises and enhancing the value of the property, did not make the title unmarketable. Sachs v. Owings, 121 Va. 162; 92 S. E. 997. Public high- ways and other incumbrances affecting the physical condition of the prop- erty, open to the observation of the purchaser, and presumably allowed for in the purchase money are no objection to the title. Ferguson v. Edgar, (Cal.) 171 Pac. 1061. The purchaser of a tanyard cannot be compelled to take the premises subject to an easement in the stream supplying the yard. Wheeler v. Tracy, 49 N. Y. Super. Ct. 208. A right on the part of a third person to have a drain pipe and water pipe across the premises sold, to the maintenance of which the purchaser must contribute, is a servitude upon the property amounting to an inrumbrance, and entitles the purchaser to rescind. Kearney v. Hogan, 154 Pa. St. 112; 25 Atl. Rep. 1076; Hixson v. Hovey, 18 Cal. App. 230; 122 Pac. 1097. A space to be left for roads and levees by riparian owners is a legal* servitude and does not constitute an incumbrance. Bourg v. Niles, 6 La. Ann. 77. A dedication of a part of the premises as a street is a fatal objection to the ti-tle. Turner v. Reynolds, 81 Cal. 214; 23 Pac. Rep. 546. Koshland v. Spring, 116 Cal. 680; 48 Pac. Rep. 58; Agens v. Koch, 74 N. J. Eq. 528; 70 Atl. 348. Dedication of un- opened street, though not accepted and though purchaser saw map with street marked on it, made the title unmarketable. Simpson v. Klipstein, 00 X. J. Eq. 197; 105 Atl. 218. A right in third persons to pipe away water from a spring on the premises entitles the purchaser to relief. Melirk v. Cross, 62 N. J. Eq. 545; 52 Atl. 16. So, also, a right to pipe oil across the land. Kroljter v. Clark (Cal.) 174 Pac. 657. The existence of a highway on the land, at bent, only entitles the purchaser to a reduction of the pur- chase money by the amount that such highway reduces the value of the tract. Beach v. Hudson R. Land Co., 65 N. J. Eq. 426; 56 Atl. Rep. K.7. Mere non-user of the right of way, though for a period of more than twenty- yean, is not sufficient to extinguish the right, in the absence of evidence of acts and possession hostile to the exercise of the right. Marshall v. Wenninger, 46 N. Y. Supp. 462; 20 Misc. Rep. 658. The selection and adoption of a railroad right of way across the premises, evidenced by a plan or map of the route returned by the company's engineers to its office, is such an inrumbrance as justifies the purchaser in rejecting the title, though the vendor has not been completely divested of his title to the "right of way* OF DOUBTFUL TITLES. 853 vations of minerals, 43 building restrictions, 44 restrictions as to land by payment of the damages. Johnston v. Gallery, 184 Pa. St. 146; 39 Atl. Rep. 73. A covenant running with the land, limiting the depth to which foundations might be sunk on a dividing line, and providing for the protec- tion of existing foundations in case of building, is an incumbrance justifying rejection of the title. Leinhardt v. Kalcheim, 79 N. Y. Supp. 500; 39 Misc. Rep. 308. Where the evidence showed that the road or street had been abandoned by the municipal authorities and the public for more than twenty- five years, houses having in the meanwhile been built across it, the purchaser was compelled to complete the contract. Baldwin v. Trimble, 85 Md. 396; 37 Atl. Rep. 176; 36 L. R, A. 489. 43 1 Sugd. Vend. (8th Am. ed.) 473 (312). Adams v. Henderson, 168 U. S. 573; 18 Sup. Ct. Rep. 179. A reservation of mineral rights is no objection to the title if th evidence shows that there is no reason to believe that there are minerals in the land. Winne v. Reynolds, 6 Paige (X. Y.), 407. "Wetmore v. Bruce, 118 N. Y. 319; 23 N. E. 303; Gilbert v. Peteler, 38 N. Y. 165; 97 Am. Dec. 785; Reynolds v. Cleary, 61 Hun (N. Y.), 590; 16 N. Y. Supp. 421; Nathan v. Morris, 62 Hun (N. Y.), 452; 17 N. Y. Supp. 13; Kountze v. Hellmuth, 67 Hun, 344; 22 N. Y. Supp. 204; Roussel v. Lux, 80 X. Y. Supp. 341; 39 Misc. JRep. 508; Jeffries v. Jeffries, 117 Mass. 184; McGlynw v. Maynz, 104 Mass. 263. Rayman v. Klare, 242 Pa. 448; 89 Atl. 591; Carlton v. Smith, 33 Ky. L. R. 647; 110 S. W. 673; Bull v. Burton, 227 N. Y. 101; 124 N. E. 227; Bacot v. Fessenden, 115 X. Y. Supp. 698; 130 App. Div. 819; McDougall v. Schneider, 118 X. Y. Supp. 861; 134 App. Div. 208; Altman v. McMillin, 101 X. Y. Supp. 970; 115 App. Div. 234; Levin v. Hill, 102 X. Y. Supp. 690; 1-17 App. Div. 472; Xeagle v. Hudson, 144 X. Y. Supp. 221; Shea v. Evens, 109 Md. 229; 72 Atl. 600; Tandy v. Waesch, 154 Cal. 108; 97- Pac. 69; Evans v. Marsh, 38 App. D. C. 341; Krah v. Wassermer, 75 X. J. Eq. 109; 71 Atl. 404. A restriction against building within a certain distance of a street line is an incumbrance not susceptible of pecuniary compensation. Adams v. Valentine, 33 Fed. Rep. 1 (X. Y.). As to whether building restrictions run with the land and bind subsequent pur- chasers, see Trustees v. Lynch, 70 X. Y. 440; 26 Am. Rep. 615; Post v. Weil, 115 X. Y. 361; 22 X. E. Rep. 145. In Hoyt v. Ketcham. 54 Conn. 60; 5 Atl. Rep. 606, it was held that a restriction against cheap buildings was an inter- est which the grantor or his executor, with power to convey, might release by quitclaim deed to the holder of the title, and that such release removed an objection to the title founded on the restriction. A condition that no mill, factory, brewery or distillery shall be erected on the premises makes the title unmarketable. Batley v. Foerderer, 162 Pa. St. 460; 29 Atl. Rep. 868. A build- ing restriction created by a former owner is not removed by a subsequent sale of the premises for taxes, and, therefore, remains a substantial objection to the title. Lesley v. 'Morris, 9 Phila. (Pa.) 110; 30 Leg. Int. 108. Building restrictions are no ground on which the title may be rejected, where they amount to a mere personal covenant not running with the land, and the covenant has been discharged by a conveyance of the land. Krekeler v. Aul- bach, 65 X. Y. Supp. 908; 51 App. Div. 591. The purchaser is not required to 854 MARKETABLE TITLE TO EEAL ESTATE. uses, 45 unexpired leases/ 8 charges upon the property for the sup- search the records for building restrictions. Liebman v. Hall, 180 X. Y. Supp. 514; 110 Misc. Rep. 365. Garage held not within a certain building restriction. Goldstein v. Hirsh, 178 N. Y. Supp. 325; 108 Misc. Rep. 294. The court will not inquire whether the building restriction is beneficial or otherwise. Dethloff v. Viot, 158 N. Y. Supp. 522; 172 App. Div. 201, citing Wetmore v. Bruce, 118 N. Y. 319; 23 N. E. 303. The purchaser is not chargeable with notice of a building restriction created by the New York City board of estimate and apportionment. Lincoln Tr. Co. v. Williams Bldg. Corp'n., 169 X. Y. Supp. 1045; 183 App. Div. 225. That the restrictions do not affect the market value of the property is immaterial. Bull v. Burton, 164 N". Y. Supp. 997; 177 App. Div. 824. The purchaser is not obliged to take the property subject to restrictions contained in the deed under which the vendor holds. Bolognino v. Shetland, 147 N. Y. Supp. 981; 162 App. Div. 679. The building restrictions do not make the title unmarketable if they be inoperative under statute or other law. Bull v. Burton, 2-27 X. Y. 101 ; 124 X. E. 227. Where the contract was to convey by warranty deed, parol evidence was not admissible to show that building restrictions wore to be inserted in the deed. Xeff v. Rubin, 161 Wise. 511; 154 N. W. 976. *Dart. V. & P. (5th ed.) 119, where it is said that a covenant against certain trades being carried on on the premises is a serious defect in the title and should be stated in the particulars. Darlington v. Hamilton, Kay, 550; Bartlett v. Salmon, 1 Jur. (X. S.) 278; 6 De G., M. & G. 33. Super- visors v. Bedford High School, 92 Va. 292; 23 S. E. Rep. 299; Evans v. Marsh, 38 App. D. C. 341; Ingersoll Eng. Co. v. Crocker. 228 Fed. 844; 14:{ C. C. A. 242; Propper v. Colson, 8 X. J. Eq. 399; 99 Atl. 385; Krah v. Wassmer, 78 N. J. Eq. 305; 8il Atl. 1133; Bacot v. Fessemlen, 115 X. Y. Supp. 698; 130 App. Div. 819; Eckel v. Spitzer, 111 X. Y. Supp. 459; Xeff v. Rubin, 161 Wise. 511; 154 X. W. 976. The court cannot decide to be imma- terial a restriction as to u.ses which the parties agreed wa a defect to be cured by release or allowed for in the purchase price. Carroll v. Trust Co., 115 X. Y. Supp. 660; 131 App. Div. 221; Flannagan v. Fox, 144 X. Y. 706: 39 X. E. 857. Premises not to be used as a slaughter-house, Raynor v. L\n. 46 Hun (X. Y.). 227; tavtrn, Post v. Weil, 8 Hun (X. Y.), 418; reversed in 115 X. Y. 361; 22 X. E. Rep. 145, on ground that subsequent purchaser VH not bound by the restriction; for any dangerous or offensive occupation. Terry v. Westing, 5 X. Y. Supp. 99. Any restriction of the right to use tin- land for any and all reasonable purposes is an ineumbrance. Terry v. \\Y-t- ing. 5 N. Y. Supp. 90; Van Schaick v. Lese, 66 X. Y. Supp. 64; 31 Mi- Rep. 610. A covenant by a prior grantee not to create a nuisance on the premises in not an ineumbrance to which a purchaser may object as a defci-t in the title, since the covenant is no more than what the law would oblige the grantee to refrain from doing independently of contract. Clement v. Burtis, 121 X. Y. 708; 24 X. E. Rep. 1013. A covenant binding the land that no intoxicating liquors should ever be manufactured or sold on the preni i-c- rendem the title unmarketable. Scudder v. Watt, !)> N. Y. Supp. 605; 98 App. Div. 40. * Judaon v. Wans, 11 Johns. (N. Y.) 525; 6 Am. Dec. 392; Tucker v. Wood, OF DOUBTFUL TITLES. 855 port of particular persons/ 7 inchoate rights of dower, 48 outstand- ing life interests, 49 outstanding contract interests, 50 proceedings in 12 Johns. (X. Y.) 190; 7 Am. Dec. 305; Fuller v. Hubbard, 6 Cow. (X. Y.) 13; 16 Am. Dec. 423; Green v. Green, 9 Cow. (N. Y.) 46; Warner v. Hat- field, 4 Bl. (Ind.) 392; Coves v. Hallahan, 209 Pa. St. 224; 58 Atl. Rep. 158; Neagle v. Hudson, 144 N. Y. Supp. 221; Foland v. Italian Sav. Bank, 108 1ST. Y. Supp. 57; 123 App. Div. 59&; Colpe v. Lindblem, 57 Wash. 106; 106 Pac. 634. A covenant for renewal of a lease, of which neither party is advised, relieves a purchaser from his agreement to take subject to the unexpired lease. Fruhauf v. Bendheim, 6 N. Y. Supp. 264; affd., 127 N. Y. 587; 28 N. E. Rep. 417. 47 As to effect and validity of condition to support grantor, see Spaulding v. Hollenbeck, 35 N. Y. 204; Leach v. Leach, 4 Ind. 628; Berryman v. Schumaker, 67 Tex. 312, If the purchaser buys with notice that vendor's title is conditioned upon payment of an annuity charged upon the land, he must complete the contract. Ditchey v. Lee, 167 Ind. 267; 78 N". E. 972. Sugd. Vend. 572, 575 (382, 384). Parks v. Brooks, 16 Ala. 529; Lewis v. Coxe, 5 Harr. (Del.) 401; Andrews v. Word, 17 B. Mon. (Ky.) 518; Por- ter v. Xoyes, 2 Greenl. (Me.) 22; 11 Am. Dec. 30; Clarke v. Redman, 1 Bl. (Ind.) 379. Contract for "good and lawful title," or conveyance "free from incumbrance," obliges vendor to furnish a deed with relinquishment of con- tingent right of dower. Thrasher v. Pinkard, 23 Ala. 616; Estep v. Watkins, 1 Bland (Md.), 486; Polk v. Sunnier, 2 Strobh. (S. C.) 81; Jones v. Gard- ner, 10 Johns. (X. Y.) 266; Heimburg v. Ismay, 35 N". Y. Super. Ct. 35; Fitts v. Hoitt, 17 N. H. 530; Goodkind v. Barttett, 153 111. 419; 38 N. E. Rep. 1045; Cowan v. Kane, 211 111. 572; 71 N. E. Rep. 1097; Vaughn v. Butterfield, '85 Ark. 289, 107 S. W. 903, 122 Am. St. Rep. 31; Eisler v. Halperin, 89 N. J. L. 278, 98 Atl. 245; Long v. Chandler, 10 Del. Ch. 339, 92 Atl. 256; Lazzell v. Keenan, 77 W. Va. 180, 87 S. E. 80. A statute merely authorizing the sale of the property of lunatics does not authorize the court or its officers to execute a deed which will bar a lunatic wife of her inchoate right of dower, and a purchaser from the husband and committee of a lunatic is not bound to accept such a deed. Dun v. Huether, 64 Hun (N. Y. ), 18, 18 N. Y. Supp. 723. Where a wife was a party to a junior mortgage, but was not a party to the senior mortgage and the junior mortgage was fore- closed, and the purchaser thereunder made a party to a suit to foreclose the senior mortgage, it was held that the sale under the junior mortgage extinguished the wife's inchoate dower right, and that a title under a fore- closure of the senior mortgage was free from any claim on the part of the wife. Calder v. Jenkins, 16 N. Y. Supp. 797. "Griffith v. Maxfield, 63 Ark. 548; 39 S. W. 852; Dikeman v. Arnold, 71 Mich. 656; 40 N". W. Rep. 42. In this case vendor was seised in fee of a part of the estate and entitled to a vested remainder in fee as to the other part. It was held that the purchaser could not be compelled to accept a conveyance of the \vhole and rely on his grantor's covenants of warranty in case he should be disturbed by the owner of the precedent particular estate. 50 Gates v. Parmly, 93 Wis. 294; 66 N. W. Rep. 253; 67 X. W. Rep. 739. 856 MARKETABLE TITLE TO REAL ESTATE. eminent domain 51 dedication, or condemnation, or ordinance for appropriation of part of the land for street purposes ; 52 unopened highways;" reservation of right of way for government ditch;" reservation for schoolhouse ; 55 public servitudes 58 and the like. Wherever these materially lessen the value of the premises and cannot be compensated for by way of damages or abatement of the purchase money, specific performance at the suit of the vendor will be denied." And the fact that the vendor is solvent and able to respond in damages for a breach of the contract is no ground upon which the purchaser can be compelled to accept the incumbered title. 58 We have already considered the question as to when easements affecting the physical condition of the property constitute a breach of the covenant against incumbrances. 59 The cases there cited are equally applicable to the question whether the existence of such easements entitle the purchaser to a rescis- sion of the contract. "Cavanaugh v. McLaughlin, 38 Minn. 83; 35 N. W. Rep. 578; Evans v. Taylor, 177 Pa. 280; 35 Atl. 635. Contra, Nixon v. Moore, 190 Fed. 913; 111 C, C. A. 503; 36 L. R, A. (N. S.) 1067; but see the dissenting opinion of Sanborn, J., in that case. In Wagner v. Perry, 47 Hun (N. Y.), 516, it was held that the mere filing of a map by street commissioners, con- taining a plan for widening a street, the effect of which would be to cut off a part of a lot sold, would not entitle the purchaser to rescind the contract; the title not being affected until actual proceedings had been taken to widen the street and they might never be taken. See, however, Forster v. Scott. 136 N. Y. 577; 32 N. E. Rep. 976, and Daniel v. Shaw, 166 Mass. 582; 44 N. E. Rep. 991. where a different view seems to have been entertained. "Grow v. Taylor, 23 N. D. 49; 137 N. W. 451; Evans v. Taylor, 177 Pa. 286; 35 Atl. 636; 69" L. R. A. 790: Atlantic Refining Co. v. Sylvester, 231. Pa. 491 ; 80 Atl. 1091 ; Shoub v. Dunbar, 256 Pa. 311 ; 100 Atl. 829; even though the ordinance was invalid and was afterwards set aside, Graybill v. Ruhl, 225 Pa. 417: 74 Atl. 239. "Lombard v. Kies, 79 Oreg. 355: 154 Pac. 757. Cosby v. Danzinger. (Cal. App.) 175 Pac. 809. "Reuthler v. Ramsin, 91 N. J. L. 262; 102 Atl. 351. "Morgan v. Dibble (Cal. App.) 184 Pac. 704. "O'Kane v. Riser, 25 Ind. 168. Special assessments for improvements which add to the value of the property do not make the title unmarketable. Ootthelf v. Stranahan, 138 N. Y. 345; 34 N. E. 286; 20 L. R. A. 455; Blivia v. Franklin Inv. Co., 197 Mn. App. 369; 194 8. W. 1073; Cornelius v. Kromminga, 179 Iowa, 712; 161 N. W. 624. "Ante, || 85, 246. "Ante, II 126, 127. OF DOUBTFUL TITLES. 857 The owner of a lot subject to a local building restriction has no such equitable easement in the other lots subject to that restric- tion as will entitle him to require the observance of the restriction, hence the violation? of such restriction by other owners in the vicinity constitutes no incumbrance or defect in his title to which a purchaser may object. 60 The rights of proprietors in a stream within the limits of their own respective properties are not easements with respect to other persons through whose premises the stream flows; hence, the fact that a stream flows through the purchased land can be no objection to the title. The purchaser is bound to take notice of the physical condition of the property, and his contract is conclusively pre- sumed to have been made subject to such condition. 61 A contract, to give a " good and sufficient title," will not oblige the vendor to extinguish a perpetual rent charge on the premises, where the con- tract expressly provides that the purchaser shall take subject to such charge. 66 Where the contract refers to the land sold as the same described in a certain deed, and provides for a conveyance of the same free from incumbrances, and a deed is tendered describing the land precisely as described in the deed referred to, the purchaser cannot reject such deed on the ground that there is a private right of way over the premises. 63 A party wall standing equally upon the land of both parties, is not, it seems, such an incumbrance as will justify the purchaser in rejecting the title; 64 especially if he buys with knowledge of the existence of the party wall. 65 But it was held that he was entitled to rescind in a case in which the wall stood wholly upon the premises sold, and there was a perpetual covenant running 80 Mead v. Martens. 47 X. Y. Supp. 299; 21 App. Div. 134. "Archer v. Archer, 84 Hun (X. Y.), 297; 32 X. Y. Supp. 410. ^Topliff v. Atlanta Land & Imp. Co., 66 Fed. Rep. 853; 13 U. S. App. 733. Heppenstall v. O'Donnell, 165 Pa. St. 438; 30 Atl. Rep. 1003. "Hendricks v. Stark, 37 X. Y. 106. (Compare Corn v. Bass, 59 X. Y. Supp. 315; 43 App. Div. 53.) Levy v. Hill, 75 X. Y. Supp. 19; 70 App. Div. 95; Scannel v. Soda Fountain Co., 161 Mo. 606; 61 S. W. Rep. 889; unless it depreciates the value of the property. Cushman v. Bean, 226 Mass. 198; 115 X. E. 574. ^Driscoll v. Carroll, 111 X. Y. Supp. 246; 127 App. Div. 265. 108 838 MAKKETA1JLE TITLE To KEAL ESTATE. with the land which bound the owner to share equally with the adjoining owner the expense of repairing or rebuilding the wall, and required that when rebuilt the wall should be of the same size and like materials. 66 The existence of a party wall covenant is, of course, no objec- tion to the title if the covenant be so drawn as not to run with the land ; as where it was specifically provided that the covenant should remain in force so long as the parties, or their legal repre- sentatives, should hold the title. 67 We have seen that the purchaser cannot refuse to complete the contract if he was informed of the existence of the incumbrance when he purchased. 68 But if the vendor represent that there are incumbrances to a certain extent only on the property, and other incumbrances appear, the purchaser cannot be compelled to go on with the contract. 69 Or if the purchaser protects himself by a positive provision in the contract that there shall be no incum- brance on the title, the fact that he knew of an incumbrance, such as an unopened street across the property at the time of the contract, is immaterial and he cannot be compelled to pay the purchase money. 70 Incumbrances affecting the physical condition of the property, such as a public highway, open to the observation of the purchaser v. Van Tassel, 137 X. Y. 297; 33 X. E. Rep. 314, distinguishing v. Stark, supra. (Compare Schaefer v. Bliinu'iithitl. 101) X. Y. 221: 62 X. E. Rep. 175.) The purchaser may insist that a mortpapee of the contiguous lot shall consent to a proposed cancellation of a party- wall agreement. Maupai v. Jacobs. 12.4 X. Y. Supp. 220; 130 App. Div. 524. "Kahn v. Mount. 61 X. Y. Supp. 358; 46 App. Div. 84; Hayden v. I'inchot, 158 X. Y. Supp. 219; 172 App. Div. 102. Ante, | 85. Park v. Johnson. 7 Allen (MaKs.), 378. In Blanck v. Sadlier, 153 N. Y. 551 ; 47 X. E. Rep. 520. it was hrliJ that one who purchased at an auction sale in H94, subject to a mortpape, was not entitled to rescind and recover his deposit on the ground that the condition* of sale failed to state that the mortpapp was payable in pold iiiHtead of currency, there brinp no proba- bility that the United States would durinp the life of the mortpape (three yearn) refuse to redeem it* obligations in gold. See, also, Frank v. Frank, 108 X. Y. Supp. 549; 1*23 App. Div. 802. w Evans v. Taylor, 177 Pa. 2*6; 35 All. 635; Bacot v. Fessendra. 119 X, Y. Supp. 404; 64 Misc. Rc-p. 422; Erikscn v. Whitiwcarvpr. 57 Colo. 409; 342 Pac. 413; right of way for irrigation ditch across the premises. OF DOUBTFUL TITLES. 859 and presumably considered by him in estimating the value of the property, constitute no valid objection to the title. 71 306. (2) Incumbrances which make the title doubtful. If there be serious doubts as to whether an incumbrance upon the premises, apparent from the records, has not been satisfied, or if there be an issue or dispute between the vendor and the incum- brancer as to that fact, the purchaser will not be required to take a title so burdened. 72 He will not be compelled to buy a law suit. Especially does this rule apply where the doubts about the dis- charge of the incumbrance must be removed by parol testimony, and the lapse of time is constantly decreasing the means for that purpose. 73 Neither will the purchaser be compelled to complete the contract when the existence of the incumbrance, or its exten- sion to the purchased premises, is a doubtful question of law or fact. 74 Nor where the incumbrance is inchoate and undetermined "Ante, p. 852. Hornbeck v. Smith, 87 Oreg. 78; 168 Pac. 633. "Rife v. Lybarger, 49 Ohio St. 429; 31 N. E. Rep. 768; Foster etc. Co. v. Sayles, 213 Mass. 3-19 ; 100 N. E. 644. In Richards v. Mercer, 1 Leigh (Va.), 125, a purchaser was compelled to complete the contract, though there was a mortgage on the premises, and nothing but " strong grounds " for believing that it had been satisfied. In Wesley v. Eels, 177 U. S. 370; Sup. Ct. Rep. the vendor claimed that a purchase-money mortgage on the premises in favor of the State of South Carolina had been discharged, under the laws of that state by a tender of certain " revenue bond-scrip " issued by the state. The state courts having decided that the issue of such paper by the state was unlawful the Supreme Court held that the purchaser could not be com- pelled to take the title with the burden of showing the error of that decision in future litigation. "Moore v. Williams, 115 N. Y. 586; 22 N. E. Rep. 233. 74 Dyker Meadow L. & I. Co. v. Cook, 159 N. Y. 6; 53 N. E. Rep. 690; Wil- son v. Bolen, 152 111. iApp. 210; Ailing v. Vanderstucken, (Tex. Civ. App.) 19*4 S*. W. 443. An excellent illustration of this proposition is afforded by the well-considered case of Moore v. Williams, 115 N. Y. 586; 22 N". E. Rep. 233; 23 Abb. N". Cas. 404. There the vendor, in answer to the objection that certain judgment against a prior owner was a lien upon the land, attempted to show that the land, at the time of the judgment, was the property of a firm of which the judgment debtor was a member, and, consequently, was not bound by the judgment. But the court held that the purchaser could not be compelled to take the title so incurabered, since he might not have the means of showing the facts respecting the judgment, if his title should after- wards be questioned or attacked. In Richmond v. Koenig, 43 Minn. 480; 45 N. W. Rep. 1093, the objection to the title was that there were unsatisfied judgments against a former owner of the land. The vendor replied that the 860 MARKETABLE TITLE TO REAL ESTATE. in its character, e. g., an attachment levied upon the estate of the vendor in the land. 75 Nor where the incumbrance, a mortgage, contains unusual covenants or restrictions burdensome on the pur- chaser. 7 ' But it has been held that a Us pendens without evidence to show that it is founded upon a just claim, is no such incum- brance as will justify a purchaser in refusing to perform thi- contract. 77 And a mortgage duly executed, acknowledged and recorded, but not accepted by the mortgagee, and, therefore, of no force and effect, though apparently a lien upon the premises, is no ground upon which a purchaser can rescind the contract. 78 So, also, a mortgage invalid because executed by one having no authority, creates no objection to the title. 79 After a judgment for the defendant, on the issue of payment, in a suit to recover the amount of the incumbrance from him as a personal liability, to which suit all persons in interest were parties, the incumbrance no longer presents an objection to the title. 80 judgments were not liens because the land was the homestead of the former owner. There were facts in evidence which made it doubtful whether -Midi owner had lost his right of homestead by leaving the State, and it was held that the purchaser could not be compelled to complete the contract. A judg- ment appearing on the record against a joint defendant, who was not served with process, is no lien on his land, and therefore no ground of objection to his title. Wessel v. Cramer, 67 N T . Y. Supp. 425; 56 App. Div. 30. A judg- ment is also no ground of objection to his title if the time during which, by statute, it i- a charge or lien on lands, has expired. Wessel v. Cramer, 67 X. Y. Supp. 425; 56 App. Div. 30. "Linton v. Hichborn, 126 "Mass. 32; Grames v. Timber Co., 215 Fed. 785. Attachment will not avoid the sale if the vendor is willing to permit the purchaser to retain enough of the purchase money to indemnify him against a possible judgment against the former. Borden v. Borden, 5 Mass. 67; 4 Am. Dec. 32. w Elterman v. Hytnan, 102 N. Y. 113; 84 N. E. 937; 127 Am. St. Rep. 862. "Ante, f 124, 290. Wilsey v. Dennis, 44 Barb. (N. Y.) 354. Compare Earl v. Campbell. 14 How. Pr. (N. Y.) 330. Of course, an attachment pro- cured by collusion of the purchaser is no ground of objection to the title. Mrnwn v. Hollows, 4 Pick. (Mass.) 179. And if the attachment and Us pendent be discharged before decree, the vendor will be entitled to sporifi.- performance. Daniel v. Smythe, 5 B. Mon. (Ky.) 347. Haffey v. Lynch, 143 N'. V. 241; 38 N. E. Rep. 298. "Wilsi-y v. Donni*. 44 Barb. (N T . Y.) 354. "Glaswook v. Robinson, 21 Miss. 85. "Young v. Hi-rvt-y, 207 Pa. 396; 56 All. 946. OF DOUBTFUL TITLES. 861 In a case in which the grantee reconveyed the premises by way of mortgage to the grantor, and afterwards reconveyed them by absolute deed to the grantor, it was held that the latter conveyance extinguished the mortgage, the legal and equitable estate having become united in one and the same person ; the lesser, the equitable estate, having become merged in the greater, the legal estate. Hence, a subsequent purchaser of the legal estate could not reject the title on the ground that the mortgage was an outstanding lien on the property. 81 The rule that a purchaser cannot be compelled to take a doubt- ful title applies as well where the doubt is as to the existence and enforceability of an incumbrance upon the premises as where the doubt is as to existence of some fact, or the construction of some instrument upon which the title is founded. 82 Thus, where the purchaser objected that the premises were subject to a railroad mortgage, and the vendor insisted that the railroad company had no power to execute the mortgage, and that the mortgage was further invalid in that it contained no particular description of the property which it was intended to cover, the court held the purchaser's objection good, without deciding whether the mortgage was or was not valid. 83 So, also, where the question was whether 81 Krekeler v. Aulbach, 64 N. Y. Supp. 908; 51 App. D5v. 591. 82 In Garnett v. Macon, 6 Call (Va.), 308, 369, it was claimed that the rule that a purchaser could not be compelled to take a doubtful title did not apply where the objection was that the estate was incumbered. But MARSHALL, Ch. J., said: "This allegation is not, I think, entirely correct. The objection is not entirely confined to cases of doubtful title. It applies to incurfibrancesi of every description which may in any manner embarrass the purchaser in the full and quiet enjoyment of his purchase. In Rose v. Calland, 5 Ves. 189, the property was stated to be free of hay tithe, and there was much reason to believe that the statement was correct. But the point being doubtful, the bill of the vendor praying a specific performance was dismissed. There is certainly a difference between a defined and ad- mitted charge, to which the purchase money may by consent be applied when it becomes due, and a contested charge which will involve the purchaser in an intricate and tedious law suit of uncertain duration." See, also, Christian v. Cabell, 22 Gratt. (Va.) 82; Hendricks v. Gillespie, 25 Gratt. (Va.) 181; Kenny v. Hoffman, 31 Gratt. (Va.) 442; Griffin v. Cunningham, 19 Gratt. (Va.) 571. S3 Xicol v. Carr, 35 Pa. St. 381. Titles held not marketable. Whether certain building restrictions were intended as a condition defeating the 862 MARKETABLE TITLE TO KEAL ESTATE. the reservation of a railroad right of way across the premises was valid. 84 The obligation of the purchaser to see to the application of the purchase money in certain cases of deh'ned and limited trusts, is, strictly speaking, perhaps not an incumbrance upon the estate, but it is a burden upon the purchaser which, it seems, will excuse him from performing; the contract. The estate is obviously of less value to him if he must incur the expense and responsibility of seeing that the purchase money is reinvested upon the same trusts as those under which he purchased. It has even been held that he may refuse to complete the contract if the case be one in which the duty of the purchaser to see to the application of the purchase money is a doubtful question dependent upon the con- struction of the instrument creating the trust. 85 In theory a pecuniary incumbrance which is less in amount than the purchase money is, as a general rule, no objection to the estate, or merely as a proviso for the benefit of adjacent lots: Jeffries v. Jeffries, 117 Mass. 1S4. Whether a certain $4,000.000 railroad mortgage was a valid lien on the purchased premises. Xieol v. ("arr, 35 Pa. St. 381. Titles Itrlil innrkrtnble. Whether certain lots, in a subdivision of a lot originally charged with the maintenance of a fence along a railroad, were burdened with such charge: Walsh v. Barton, 24 Ohio St. 2S. Whether a release of a certain building restriction had ever been executed: Post v. Brenheimer, 31 Hun (X. Y.), 247. Whether a vendor is bound to produce a release of legacies charged on the purchased premises, the legacies having been in fact paid: Cassell v. Cooke, 8 S. & R. (Pa.) 268, 2J2; 11 Am. Dec. 610. "Bruegger v. Carter, 29 X. D. 575; 151 N. W. 34. "St. Mary's Church v. Stockton, 8 X. J. Eq. 520, 531. A charter under which the vendors (certain church officials) held in this case, contained a proviso that in case of a sale of the premises granted, lands of the full value of those sold should with the proceeds of the sale he purchased and settled for the uses declared in the charter. The court observed: "Without examining particularly the doctrine as to the duty of purchasers to see to the application of the purchase money, and the distinctions which prevail on this subject, it i- sufficient to say that this proviso might be a serious embarrassment to a purchaser. He would be subjected to the issue of the c|iicMtinn whether the purpose to which the money arising from the sale is required to be applied be of a definite and limited or of a general and unlimited nature. If the first, he would, an it seems from the authorities, l-i- bound to nee that the purchase money was applied to the purpose mentioned in the proviso. Story'a Eq. Jur. f 1127." Oarnett v. Macon, 6 Call (Va.l, MS, OF DOUBTFUL TITLES. 863 title, because the purchase money may be applied to the discharge of the incumbrance and the incumlbrancer be compelled to join in the conveyance or to execute a release. 86 But it is obvious that circumstances might exist which would make the incumbrance a serious objection to specific performance by the purchaser. The property may have been purchased with a view to speedy resale as a speculation, and difficulty may be encountered in finding a per- son competent to release the incumbrance, particularly if created by a remote owner of the property, or if passed by assignment to a third party. In such a case it is apprehended that time would be deemed of the essence of the contract and the purchaser be relieved from the bargain. We have seen that in a case in which the facts entitle the purchaser to a rescission of the contract on the ground that the estate is incumbered, the fact that the incum- brance is less in amount than the unpaid purchase money will not affect the right to rescind if the purchase money be not yet due, especially if the vendor be insolvent, and there be danger that the incumbrance will be enforced, and that the purchaser will lose the property. 87 The fact that the unpaid purchase money may be applied to the discharge of an incumbrance does not affect the purchaser's right to rescind, if the vendor fraudulently concealed the existence of the incumbrance. 88 The extreme improbability that a valid and subsisting incum- brance upon the premises will ever be enforced renders the title none the less liable to objection. When once it is ascertained that the incumbrance exists, specific performance by the purchaser will not be enforced on the ground that it is doubtful whether the incumbrance will ever be foreclosed. 89 84 Ante, 245, 305. 87 Ante, ch. 24, 246. Peak v. Gore, 94 Ky. 533. 88 Crawford v. Keebler, 5 Lea (Tenn.), 547. Peak v. Gore, 94 Ky. 533. 89 Seaman v. Hicks, 8 Paige (N. Y.), 665; Hendricks v. Gillespie, 25 Grat. (Va.) 181, 200; Butler v. O'Hear, 1 Des. Eq. (S. C.) 382; 1 Am. Dec. 671. If any person has an interest in or claim upon the estate which he may enforce, a purchaser cannot be compelled to take the estate, however im- probable it may be that the right will be exercised. 1 Sugd. Vend. (8th Am. ed.) 590; Drew v. Corporation, etc., 9 Ves. 368, where the vendor wa<3 entitled to an absolute term of 4,000 years in the estate, and also to a mortgage of the reversion, which had been forfeited but not foreclosed. In 864 MARKETABLE TITLE TO REAL ESTATE. 307. Apparently unsatisfied incumbrances. It seems that incumbrances upon the purchased premises which do not appear Brooklyn Park Com. v. Armstrong, 45 N. Y. 234; 6 Am. Rep. 70, the de- fendant purchased certain lands which the plaintiffs, a park commission, held for public purposes; but were authorized to sell by act of the legislature, the fund BO realized to be applied to the redemption of bonds issued to obtain funds wherewith to acquire such lands, which bonds were made a lien on the lands in question. One of the objections to the title was the existence of these bonds as a lien on the land. The objection was deemed sufficient, the court saying: " It is true that the danger to the purchaser, to all seem- ing, is very slight and very remote, that the premises for which he has con- tracted will ever be called upon to contribute to the payment of these bonds. The probabilities are, that with the wealth concentrated within the corporate bounds of the city of Brooklyn, and with the means at its command, it will always find the ordinary means of raising money by taxation sufficient for the purpose of payment of interest, and the method of a new loan at any time available to pay the principal. But yet there is the possibility. The debt is an incumbrance upon the land, and does affect that for which the appel- lant bargained. This is a legal certainty. However strong the probability that the debt will never be exacted from the land, it cannot be asserted to be more than a probability. While it exists there is, as matter of law, and matter of fact, the possibility that the creditor may enforce his lien. And this hampers the estate. It may be conceded that a title free from reason- able doubt may be forced upon an unwilling purchaser. Thus, in a case in which it appeared that there was in a prior deed, a reservation of mines, specific performance was decreed, not because there being mines it was not probable that the right reserved would ever be exercised, but because: First. The court saw upon examination the probability was great that there were no mines for the right reserved to act upon. Second. That all legal right to exercise it had ceased. But this is a doubt whether there exists in law or in fact, any defect in the title. When it is ascertained that there is an existing defect in the title, the purchaser will not be compelled to perform on the allegation that it is doubtful whether the defect will ever incommode him." In Rife v. Lybarger, 49 Ohio St. 429; 31 N. E. Rep. 768, the only cloud upon the title was an uncanoeled mortgage made to secure certain notes which had become barred* by statute. The mortgagee was dead, his estate solvent, and his widow and heirs had quitclaimed any interest which they might have to the vendor. The purchaser was compelled to take the title. The court by BBADBUBT, J., lucidly said: "If the title is such that it ought to satisfy a man of ordinary prudence it is sufficient. In the case under consideration, the title was perfect, but was subject to a mere possibility that a claim might be asserted on an old unranoeled mortgage against which full indemnity was tendered. Under such circumstances the objection presents all the features of an excuse for the non-performance of a contract no longer desirable. It is said that the vendees bought the land with a view to its subdivision into town lots and its immediate resale, which purpooe was well known to the vendor, and that by reason of this incumbrance, they lost a sale at a con- OF DOUBTFUL TITLES. 865 by the record to have been satisfied will render the title doubtful or unmarketable, 90 even though the vendor be able to show by parol testimony that they have been satisfied. 91 They constitute a cloud upon the title, which the vendor should remove before calling upon the purchaser to complete the contract. The means of show- ing the satisfaction of the incumbrance may not be within the purchaser's reach, if an attempt to enforce the incumbrance should be made, or if the existence thereof should be urged as an objec- tion to his title. In certain of the States there are statutory- provisions for summary proceedings by which the owner of an estate may compel an incumbrancer to enter the fact of satis- faction of the incum'brance on the record. 92 Where the vendor is in possession of evidence which would entitle him to such an entry he should procure it to be made. If he have not such evi- dence, the purchaser should be relieved from the contract. If, however, the purchase money remains unpaid so that it can be applied to any incumbrance upon the premises, or if the vendor can show that he is able to satisfy the incumbrance, it has been held that the fact that the incumbrance appears unsatisfied of record will not entitle the purchaser to rescind. 93 It seems that if siderable advance on the price they were to pay. This may be true, but the vendor is no more to be affected by the captious objections of possible pur- chasers of the vendees, than by similar objections on the part of the vendees themselves. Whether the sale should be of the entire purchase as a whole or in parcels upon its subdivision into building lots, a perfect title free from any reasonable apprehension of danger from this possible lien, could be made to contemplating purchasers. ""Mahoney v. 'Allen, 42 N". Y. Supp. 11; 18 Misc. 134; Agens v. Koch, 74 ST. J. Eq. 528 ; 70 Atl. 348. 91 Sachs v. Owings, 121 Va. 162; 92 S. E. 997; Hoyt v. Tuxbury, 70 111. 331, provided the objection be made 'by the purchaser in good faith. Hendricks v. Gillespie, 25 Gratt. (Va.) 181, semble. A purchaser at a judicial sale was relieved from his bid where an entry of satisfaction of a prior lien on the premises was found to be a forgery. Charleston v. Blohme, 15 S. C. 124 ; 40 Am. Rep. 690. In the following cases there are decisions or dicta that the purchaser can be compelled to complete the contract, if the vendor can show that apparent incumbrances on the premises have been satisfied. Fagan v. Davidson, 2 Duer (N. Y.), 153; Pangborn v. Miles, 10 Abb. N. C. (N. Y.) 42; Espy v. Anderson, 14 Pa. St. 308. M As in Virginia, Code 1887, 3564. w Espy v. Anderson, 14 Pa. St. 308. 109 86C MARKETABLE TITLE TO REAL ESTATE. a suit in equity by the vendor be necessary to remove a cloud upon the title caused by an apparent incumbrance of record, the pur- chaser cannot be compelled to await the issue of the suit, 94 and may refuse to complete the contract. But if the vendor can, within a reasonable time, remove the objection by procuring releases, or appropriate entries upon the records, showing satis- faction of the incumbrance, no reason is perceived why he should not be permitted to do so, upon the general principle that the vendor may perfect the title wherever time is not material. In New York it has been held that the existence of a mortgage on the premises, although more than thirty years old, renders the title doubtful, as the mortgagee may have in his possession a promise to pay, or other facts may exist which would prolong the life of the mortgage. 95 In Maryland, in a case in which the right to foreclose had been barred for fifteen years over the statutory period of twenty years, and in which there had been no recog- nition of the mortgage as a subsisting lien during that time, it was held that the purchaser could not refuse to take the title. 96 The fact that an incumbrance upon the premises appears unsatis- fied of record, will not justify the purchaser in his refusal to complete the contract, when the incumbrance is of such long stand- ing as to raise a presumption that it has been paid, 97 or if the Kenny v. Hoffman, 31 Vn. 442; Bartle v. Curtis, 68 Iowa, 202, 20 X. W. Rep. 73. "Pangborn v. Miles, 10 Abb. N. Ca. (N. Y.) 42; Austin v. Barnura, 52 Minn. 136, 53 X. W. Rep. 1132. Baldwin v. Trimble, 85 Md. 396, 36 L. R. A. 489, 37 Atl. 176; Goldman v. Miles. 129 Md. 180, 98 Atl. 531. Compare Justice v. Button, 89 Neb. 307. 131 X. W. 736, 38 L. R. A. (X. S.) 1, where it was held that an unreleased and apparently unsatisfied trust deed on the property, though seemingly barred by the statute of limitations for several years, made the title un- marketable. "Katx v. Kaiser, 154 N. Y. 296, 48 N. E. Rep. 532; Paget v. Melchoir, 5S X. Y. Supp. 913. 42 App. Div. 76; X. Y. Life Ins. Co. v. Lord, 40 C. C. A. 585, 100 Fed. Rep. 17; Belmont v. O'Brien, 2 Kern. (X. Y.) 394, where there were two mortgages on the premise*, one sixty-six and the other eighty- four years old; Kip v. Hirsh, 103 X. Y. 565, 9 X. E. Rep. 317; Pangborn v. Miles, 10 Abb. N. C. (N. Y.) 42; Forsyth v. Leslie, 77 X. Y. Supp. 828, 74 App. Div. 517; Barber v. Oery, 64 X. J. Eq. 263, 53 Atl. 483; Morgan v. Roott, 26 Pa. St. 51, where the mortgage was fifty years old and was made to secure a life annuity to a person many years dead at the time of the sale. OF DOUBTFUL TITLES. 867 circumstances of the case show that the incumbrance is no longer enforceable, as in the case of a mortgage to secure the support of a person who had been many years dead when the contract of sale was made. 98 Where a statute provided that a trust for. the benefit of creditors should be deemed discharged after the expiration' of twenty-five years from the time of its creation, it was held that the existence of the trust constituted no Objection to the title after the lapse of that time." But where it is an open question whether under the law of the place, a mortgage is embraced by the Statute of Limitations, the purchaser cannot be required to take the title. 1 In- regard to releases, or marginal entries upon the public records, showing the satisfaction of incumbrances, it is to be observed that an authority to make such entry, or to execute such release, must appear from the records, and if the abstract fails to show such authority, the title will be held unmarketable. 2 Thus, In- Hayes v. Nburse, 8 N". Y. State Rep. 397, a Us pendens fifty years old was held to be sufficient objection to the title; satisfaction of a claim to the premises cannot be presumed, so long as a suit asserting the claim is pending. Abbott v. Fellows, 116 Me. 173$ 100 Atl. 657; Greenfield v. Mills, 107 N. Y. Supp. 705, 123 App. Div. 43; Barsky v. Posey, (Del. Ch.) 98 Atl. 298; Strickland v. Duffie, (Tex. Civ. App.) 191 S. W. 622. The appearance of the property on a delinquent tax list forty years before the contract of sale, furnished no ground for rejecting the title the property not having been forfeited to the State, and the subsequent taxes having been, in the meanwhile, continuously assessed to and paid by the vendor. Henrjs v. Barker, 130 La. 431, 58 So. 138. "Shanahan v. Chandler, 218 Mass. 441, 105 1ST. E. 1002. "Green v. Hernz, 35 N. Y. Supp. 943; Kip v. Hirsh, 103 N. Y. 565, 9 N. E. Rep. 317, where held also that such statute was retrospective in its operation, and applied to trusts in existence before the passage of the act. Disapproving 'MfcCahill v. Hamilton, 20 Hun (N. Y.), 388. Where a vendor had been for fifteen years in possession under an assignment which was on its face void as to creditors, but no creditors had ever sought to impeach it, and thirty-three years had elapsed since the assignment was made, the title of the vendor was held marketable. Morrison v. Brand, 5 Daly (N. Y.), 40. 1 Godfrey v. Rosenthal, 17 S. Dak. 452, 97 N. W. 365. 2 Warvelle Abst. 344. Ethington v. Rigg, 173 Ky. 355, 191 S. W. 98. If the mortgage be merged in a subsequent acquisition of the title by the vendor or his predecessors in title, it is no objection to the title that a release of the mortgage, which had been recorded, does not appear of record. Summy v. Ramsey, 53 Wash. 93, 101 Pac. 506. 868 MARKETABLE TITLE To REAL ESTATE. if the release is by an attorney in fact, assignee or personal repre- sentative, and the power of attorney, assignment or qualification of the personal representative has been or may be made a matter of public record, the abstract of title must show such power assignment or qualification as the case may be, or the purchaser will be justified in rejecting the title, if the contract provides that the abstract shall show a good title of record. 3 In a case in which a county auditor released a mortgage upon school lands, and there was nothing to show actual satisfaction of the mortgage, it was held- that the purchaser might reject a conveyance, the release being prima facie unauthorized and void. 4 307-a. Encroachments and deficiencies. Encroachments. A fmitful source of objections to the title to city property is that the buildings or structures on the property encroach upon the lands of adjoining proprietors. As a general rule in such cases the purchaser ig entitled to a rescission of the contract and a return of his deposit, on the ground that the title is unmarketable. 5 Thus, he cannot be compelled to accept title to a city lot and build- ing thereon if an exterior wall of the building rests entirely on the lot of an adjoining proprietor, and belongs exclusively to such proprietor, by whose permission, or with whose acquiescence, the beams of the adjoining building are inserted in such wall, no legal v. Douthett, 40 Kana. 689, 20 Pao. Rep. 493, reversing 39 Kans. 316; Durham v. Hadley, 47 Kans. 73, 27 Par. Rep. 105. Want of satisfaction of a mortgage on the record is no objection to the title, where the property had been reoonveyed to the mortgagee in payment of the mortgage debt. Clody v. Southard, 109 N. Y. Supp. 411. 4 Conley v. Dibber, 91 Ind. 413. McPherson v. Schade, 149 N. Y. 16, 43 N. E. 527; Heller v. Cohen, 154 N. Y. 299, 48 N. E. 527; Snow v. Monk, 80 N. Y. Supp. 719, 81 App. Div. 206; Keim v. Sax-hs, 92 N. Y. Supp. 107, 102 App. Div. 44; Bergmann v. Klein, 89 X. Y. Supp. 624, 97 App. Div. 15. Reynolds v. Wynne. 105 N. Y. Supp. 849. 121 App. Div. 272; Kaplan v. Bergmann, 107 N. Y. Supp. 423, 122 App. Div. 876; Heyman v. Steich. 114 N. Y. Supp. 603; Meadows v. Michel. 120 N. Y. Supp. 319. 135 App. Div. 213, S. C. 130 X. Y. Supp. 57. 144 App. Div. 927; Walter v. Mitchell, 6 Cal. App. 410, 92 Pac. 315. The extent of the injury to the adjoining premises is immaterial. Snow v. Monk. 80 X. Y. Supp. 719, 81 App. Div. 206. In Kppig v. C.ruhn. 159 X. Y. Supp. 549. 176 App. Div. 787, it wax held that, in equity, the vendor would be entitled to a reasonable time in which to remove the objection to the title. OF DOUBTFUL TITLES. 869 right to the use of the wall being shown. 6 But insignificant and immaterial encroachments upon adjoining property will not entitle the purchaser to rescind. 7 No rule can be laid down that one or two inches of encroachment will justify a rescission of the contract. Each case must be determined upon its peculiar facts. The evidence must establish a reasonable certainty that injury to the purchaser will follow; that he will be prevented from using the buildings in the condition which they were in at the time of the purchase. 8 The encroachment will not entitle the purchaser to relief where it has existed for such length of time and under such circum- stances as to bar any claim by the owner of the premises encroached upon. 9 But the burden will be upon the vendor to show that his title has been ripened by adverse possession against all possible claimants, including persons under disabilities, if any. 10 In New York it is provided by statute that suit to recover land encroached upon by the wall of a buiHing must be brought within a year after the erection of the building. 11 In cases to which that act applies, 'Spero v. Shulz, 43 N. Y. gupp. 1016, 14 App. Div. 423; Neher v. Brunck- man, 55 N. Y. Supp. 107, 36 App. Div. 625; Hennig v. Smith, 151 N. Y. Supp. 444. 7 Merges v. Ringler, 54 N". Y. 8upp. 280, 34 App. Div. 415; McDonald v. Buch, 60 N. Y. Supp. 557, 29 Misc. 96. The encroachment is immaterial if the building purchased is old, dilapidated, and practically worthless. Weil v. Radley, 52 N. Y. Supp. 39S. The encroachment of show windows seventeen inches on the street is no objection to the title. Keim v. Sachs, 92 N. Y. Supp. 107, 102 App. Div. 44; Griffin v. Schneider, 105 N. Y. Supp. 1035; Ungrich v. Shuff, 105 N. Y. Supp. 1013, 119 App. Div. 843; Weintraub v. Seigel, 118 N. Y. Supp. 261, 133 App. Div. 677. Slight projections of cornices, sills, lintels, etc., over the street line, do not make the title unmarketable. Leerburger v. Watson, 134 N. Y. Supp. 818, 75 Misc. Rep. 3. Compare Acme Realty Co. v. Schinasi, (N. Y.) 109 N. E. 577. Merges v. Ringler, 54 N. Y. Supp. 280, 34 App. Div. 415. Weil v. Radley, 52 N. Y. Supp. 398; Harrison v. Platt, 54 N. Y. Supp. 842, 35 App. Div. 533; Van Horn v. Stuyvesant, 100 N. Y. Supp. 547. Where a house on the lot had stood for thirty years without objection to an encroachment of two or three inches on an adjoining lot, it was held that the purchaser could not refuse the title. Katz v. Kaiser, 41 N". Y. Supp. 776, 10 App. Div. 137. The mere fact that an encroachment has continued for twenty years does not establish a right by adverse, possession to the space encroached upon. Miner v. Hilton, 44 N. Y. Supp. 165, 15 App. Div. 55. 10 Stevenson v. Fox, 57 N". Y. Supp. 1094, 49 App. Div. 354. u Code Civ. Proc. N. Y. 1499. 870 MARKETABLE TITLE TO REAL ESTATE. the purchaser cannot object to the title where ne such suit has been brought within the year prescribed. 18 There is also a statute in the same State which requires a city to begin proceedings within a specified time for the removal or abatement of structures encroaching upon a street. Slight encroachments upon a street are no objection to the title, where the city has brought no such suit within the specified time." That a building on the property does not conform to municipal regulations or ordinances, does not make the title unmarketable. 14 307-b. Deficiencies in quantity. The objection is frequently made that the vendor is not able to convey as much land as the purchaser is entitled to under the contract. The deficiency may result either from an incorrect estimate of the quantity of land within certain bounds, or it may result from the want of title of the vendor to some portion- of the land included within those bounds, or from the want of such an easement in adjoining prop- erty as the vendor represented himself to have. If the deficiency be so great or so important, that the purchaser cannot be required "Volz v. Steiner, 73 N. Y. Supp. 1006, 87 App. Div. 504. This provision applies only where the wall abuts a wall on the adjoining lot; it does not apply where the encroachment is upon a lot on which there is no abutting wall. Bergmann v. Klein, 89* N. Y. Supp. 624. 97 App. Div. 15. The limita- tion does not begin to run against those having a remainder in the lot encroached upon until they have entered. Hence the statute does not cure the objection where the premises encroached upon are occupied by a life- tenant with remainder over. Snow v. Monk, 80 N. Y. Supp. 710, 81 App. Div. 206. "Merges v. Ringler, 54 N. Y. Supp. 280, 34 App. Div. 415; Harrison v. Platt, 54 N. Y. Supp. 842, 35 App. Div. 533; Van Horn v. Stuyvesant, 100 N". Y. Supp. 547; Huber v. Groo, 168 N. Y. Supp. 834, 181 App. Div. 369, a rase in which an abandoned strip of a town road through the premises had been conveyed by the town to the abutting owner. In Schaefer v. Hilliker, 124 X. Y. Supp. 1014, the fact that the premise!* included a part of an abandoned road, title to which was in the city, made the title unmarketable. 14 Leerburger v. Watson, 134 N. Y. Supp. 818, 75 Misc. Rep. 3. Compare Acme Realty Co. v. Schinasi, (N. Y.) 1O0 N. E. 577. The fact that the stoop of a building projects several feet beyond the lot lino into the street is no objection to the title. Broadbelt v. Loew, 162 N. Y. 642, 57 N. K. Rep. 1105; Ixjvy v. Hill, 75 N. Y. Supp. 19, 70 App. Div. 95. Slight encroachment-! lieyond the street line are no objection to the title where they have existed for a number of years without objection on the part of the city authorities. Webster v. Kings Co. Tr. Co., 145 N. Y. 275, 39 N. E. Rep. 964. OF DOUBTFUL, TITLES. 871 to complete the contract with compensation, or abatement of the purchase money, for the defect, the title is said to be not market- able, 15 though in a technical sense, that term is properly applicable only to those cases in which a doubt arises as to the sufficiency of the vendor's title to some portion of the premises embraced in the contract, and not to cases in which there is a clear want of title to such portion. Trifling deficiencies are no ground on which to reject the title. 16 A title will not be rendered unmarketable by a deficiency in area when the contract was made with reference to fixed monu- ments 'bounding the land. 17 But the rule that monuments control metes and bounds, courses and distances, does not apply when there is no certain boundary in the description which can make the courses and distances yield to fixed monuments. 18 307-c. Physical defects, dilapidation, want of repairs, or want of facilities required by law, do not make the title unmarketable. 1 * 15 Post, ch. 33. Albro v. Gowland, 90 N. Y. Supp. 796, 98 App. Div. 474. If the vendor sells the property as bounded by a street but fails to mention the liability of a strip of the land to condemnation for widening the street, the purchaser cannot be required to complete the contract. Celestial Realty Co. v. Childs, 169 N. Y. Supp. 597, 182 App. Div. 85. 14 Garibaldi Realty Co. v. Santangelo, 149 N. Y. Supp. 669, 164 App. Div. 513. "Pope v. Thrall, 68 N. Y. Supp. 137, 33 'Misc. 44; Scannel v. Amer. Soda Fountain Co., 161 Mo. 606, 61 S. W. Rep. 889. The purchaser of a city lot cannot object that the house on the lot encroaches several inches on an adjoining lot, where both lots were formerly owned by the same person, and the vendor holds under a conveyance from that person. In such case the loca- tion of the house is conclusive on subsequent grantees of the lot encroached upon as to the extent of the lot, under the rule that natural or artificial boundaries plainly referred to, must control measurements and distances with which they do not agree. Katz v. Kaiser, 41 N". Y. Supp. 776, 10 App. Div. 137. Where the contract described city lots as bounded by a street, the vendor having no fee nor rights in the street, there was no implied covenant that the street had been legally opened, or would remain open. Interborough R. T. Co. v. Littlefield, 149 N. Y. Supp. 741. M Fuhr v. Cronin, 81 N. Y. Supp. 536, 82 App. Div. 210. "Woodenbury v. Spier, 106 N. Y. Supp. 817, 122 App. Div. 396. CHAPTER XXXII. OF THE RIGHT OF THE VENDOR TO PERFECT THE TITLE. BEFORE THE TIME FIXED FOB COMPLETING THE CONTRACT. { 308. AFTER THE TIME FIXED FOR COMPLETING THE CONTRACT. { 309. Exceptions: (1) Where time is material. 310. (2) Where the covenants are mutual and dependent. 311. (3) Waiver of the right. 312. (4) Loss and injury to the purchaser. 313. (5) Fraud of the vendor. 314. (6) Want of colorable title. 315. (7) Laches of the vendor. 316. (8) Effect of special agreements. 317. (9) Effect of notice and request to perfect the title. 318. IN WHAT PROCEEDINGS THE RIGHT MAY BE ASSERTED. f S19. REFERENCE OF THE TITLE TO MASTER IN CHANCERY. When directed. 320. When refused. 321. At what stage of the proceedings reference may be made. 322. Procedure. Costs. 323. INTEREST ON THE PURCHASE MONEY WHILE TITLE IS BEING PERFECTED. 324. 308. BEFORE THE TIME FIXED FOR COMPLETING THE CONTRACT. The vendor may of right perfect his title at any time before the period fixed for the completion of the contract, and the fact that his title was incomplete at the time the contract was made, is immaterial, provided the matters necessary to make the title pood can be accomplished before the time specified for making the conveyance. 1 The vendor is not necessarily guilty of '1 Sugd. Vend. (8th Am. ed.) 306; 1 Chitty Cont. (llth ed.) 431; Will. Kq. .Fur. 290; Stowell v. RobinHon, 3 Ding. (N. C.) 9*28; In re Bryant, 44 Ch. Div. 218; dray v. Smith, 76 Fed. 525; Harris v. Carter. 3 Stew. (Ala.) 236; OemenH v. Ixiggins, 2 Ala. 518; Dreael v. Jordan, 104 Mass. 407; Gibtton v. New-man, 1 How. ('Mian.) 341; GOSH v. Singleton, 2 Head (Tenn.), 67; An- drew v. Babcork, (Conn.) 26 Atl. Rep. 715; Dennis v. Stranburgir. 89 Cal. 583, 25 Pac. Rep. 1070; Lemle v. Barry, (Cal.) 183 Pac. 148; Hundley v. TibbettB, (Ky.) 16 8. W. Rep. 131; More v. Smedburgh, 8 Paige Ch. (JT. Y.) [872] OF THE EIGHT OF THE VENDOR TO PERFECT THE TITLE. 873 fraud in representing that his title is good and indefeasible, if he be able to make it o before the time fixed for completing the contract. 2 Generally speaking the vendor will not be permitted to perfect the title where, at the time of the contract, he has no colorable title to the premises and seeks to compel the vendee to await his efforts to get in the title after the time when the contract should have been performed. The law does not encourage specu- lation in the property of strangers ; the vendor must have been a bona fide contractor. 3 But the purchaser cannot object to specific 600; Friedman v. Dewees, 33 1ST. Y. Super. Ct. 450; Whitney v. Crouch, 172 N. Y. Supp. 729; Monsen v. Stevens, 56 111. 335; Bowersock v. Beers, 82 111. App. 396; Elder v. Chapman, 70 111. App. 288; Armstrong v. Breen, 101 Iowa, ft, 69 N. W. Rep. 1125; Maryland Const. Co. v. Kuper, 90 Md. 529, 45 Atl. 197 ; Moot v. Business Men's Asso., 157 N. Y. 201, 52 N. E. Rep. 1 ; Mincey v. Foster, 125 N. C. 541, 34 S. E. Rep. 644; Garber v. -Button, 96 Va. 469, 31 S. E. Rep. 894; Mundy v. Garland, 116 Va. 922, 83 S. E. 491; Jones v. Taylor, 7 Tex. 240, 56 Am. Dec. 48; Runnels v. Pruitt, (Tex. Civ. App.) 204 S. W. 1017; Tison v. Smith, 8 Tex. 147. Here the vendor had no title to a part of the land sold, and had to buy it from a third party in order to fulfill the contract on his part, but the purchaser was aware of all the facts when he bought. Elliott v. Hogue, 113 Ark. 599, 168 S. W. 1097; Silfver v. Daenzer, 167 Mich. 362, 133 N. W. 16; McNally v. Palmer, (N. J. Eq.) 100 Atl. 335; Agens v. Koch, 74 N. J. Eq. 528, 70 Atl. 348; Martinson V. Requa, 18 N". D. 467, 123 N. W. 285; Ward v. James, 84 Oreg. 375, 164 Pac. 370; Morris v. Canal Co., T5 Wash. 483, 135 Pac. 238; Zizich v. Invest- ment Co., 77 Wash. 392, 137 Pac. 1028; Armstrong v. Coal Co., 67 W. Va. 589, 69 S. E. 195. Conveyance to a third party for the purpose of facilitating performance of the contract, is no ground for rescission, vendor having until the " law day " in which to perform. Tanzer v. Banker's Corp. 144 X. Y. Supp. 613, 150 App. Div. 351. In Cook v. Bean, 17 Ind. 504, it was held that the vendor's right to time in which to perfect the title, obtains only in cases where some secret defect is discovered in the title, and does not operate to excuse the vendor from doing all in his power to fulfill the contract at the appointed time. This case must not be given too broad an interpretation, else it will conflict with the rule that one" purchasing with knowledge that time will be required to perfect the title, is held to have waived his right to demand a strict performance at the time fixed for completing the contract. In Upton v. Maurice, (Tex. Civ. App.) 34 S. W. Rep. 642, it was held that where time was not of the essence of the contract, and the vendee has made no tender of performance on his part and no demand of performance on the part of the vendor, the right of the latter to perfect the title remains until a right of action on the contract is barred by the statute of limitations. 2 Cases cited in last note. 1 Armstrong v. Palmer, (Tex. Civ. App.) .218 S. W. 627. 110 874 MARKETABLE TITLE TO REAL ESTATE. performance on the ground that the vendor had no semblance of title at the time of the contract if he has acquired or can acquire it before the time fixed for the completion of the contract. In such a case the purchaser is put to no delay or inconvenience, and there is nothing of which he can complain. 4 Especially if he entered into the contract knowing that the vendor would have to obtain the title from another. 5 The vendor has, of course, until the time fixed for completing the contract in which to remove incumbrances.' The delivery of the deed and the payment of the purchase money are simultaneous acts. The vendor is not bound to raise money and pay the incumbrances in advance. If he produces the holder of the lien ready to satisfy it on payment he can rely on the purchase money as the fund for such payment. 7 Therefore, the foreclosure of a mortgage upon the premises before a final payment of the purchase money becomes due, is no ground upon which to rescind the contract, unless the agreement expressly required the vendor to remove incumbrances before all the pur- chase money should be paid, or unless there should be circum- stances in the case that would make inequitable a compulsory per- formance by the vendee. 8 If by the contract it is expressly pro- vided that the purchaser shall receive a title clear of all incum- brances, the vendor must discharge these before the time fixcl for completing the contract, and the purchaser will not be in Post, this chapter, 315. Webb v. Stephens, (Wash.) 39 Pac. 052. The fact that a guardian had no authority to sell at the time of sale, does not invalidate the contract, if he acquires authority before the time fixed for completing the contract. 'Morris v. Goodwin, (Ind. App.) 27 X. E. Rep. 985. Weitzel v. Leyson, 23 S. D. 367, 121 N. W. 868; Walken v. Nbkken, 38 S. D. 289, 161 X. W. 194. Smith v. MrMahon. 107 Mass. 16, 83 N. E. 9. T Ante, $ 87. Webster v. Kings Co. Trust Co., 80 Hun (X. Y.). 420, 30 N. Y. Supp. 357; Gibson v. Newman, 1 How. (Miss.) 34fi: Duluth Land Co. v. Klovdahl. :>.~> Minn. 341. "><; \. \V. Hep. 1110; Anderson v. Creston Land Co., 96 Va. 257, 31 S. K. Rep. 82; Griesemar v. Hammond. 18 Cal. App. 535, 123 Pac. 818; Mobley v. Quattlebaum, 101 S. C. 221, 85 S. E. Ward v. JamB, 84 Oreg. 375, 164 Pac. 370: l'o-e\ v. Rem-ey. 146 Ky. -'0:.. 142 S. W. 7o:i : Buchanan v. Yudi-lson. 27 111. 138. 122 X. K. 100; Thos. J. Haird Co. v. Harris, 209 Fed. 291, 126 C. C. A. 217; I'nion l?atf Corp. v. ..IT. J.'i.'i !'<\ Wash. 30. lf,7 1'ac. 47. Pato v. M.Connell, (Ala.) 1H So. Rep. 98. Post, this chapter, f 317. OF THE EIGHT OF THE VENDOR TO PERFECT THE TITLE. 875 default in failing to tender the purchase money if the vendor does not remove the incumbrance before that time. 9 The purchaser should make his objections to the title in time to enable the vendor to remove them. 10 And in any suit in which he seeks to rescind the contract he should specify the defect of title of which he com- plains in order to give the vendor an opportunity to remove it, and time should be allowed the vendor to bring proper parties before the court, where the title can be perfected by having them present. 11 If a time be specified in which the vendor may perfect the title if defective, the purchaser can maintain no action to recover back the deposit before that time has expired. 12 But where the vendor refused to accept a tender of the balance of the purchase money on the ground that he had no title and could not perform the contract, it was held that he could not, when sued for the deposit, be heard to say that the time fixed for the completion of the contract has not yet expired. 13 Generally, in the purchase of an estate and the appointment of a particular day for the completion of the title, the principal object is the sale of the estate for a given sum, and the naming of the day is either merely formal, or for the convenience of the parties in the payment of the purchase money on the one side or the execution of a conveyance on the other. " The stipulation means in truth that the purchase shall be completed within a reasonable time, regard being had to all the circumstances of the case and the nature of the title to be made." 14 In a case in which the contract provided that ten days should be allowed for examina- tion of the title, and that if the title proved unsatisfactory the deposit should be returned, it was held that the purchaser should state his objections to the title, if not approved, and that the vendor would be entitled to a reasonable time thereafter in which to perfect the title, and that the purchaser could not rescind the "Morange v. Morris, 34 Barb. (N. Y.) 311; Roos v. Thigpen, (Tex. Civ. App.) 140 S. W. 1180. "More v. Smedburg, 8 Paige (N. Y.), 600; Easton v. Montgomery, 90 Cal. 307, 27 Pac. Rep. 280. "Hogan v. McMurtry, 5 T. B. Mon. (Ky.) 181. 12 Dennis v. Strasburger, 89 Cal. 583, 26 Pac. Rep. 1070. "Seiberling v. Lewis, 93 111. App. 549. 14 Language of ALDEBSON, B., in Hipwell v. Knight, 1 Yo. & Coll. 415. 876 MARKETABLE TITLE TO KEAL ESTATE. contract until he had given such notice of his objections and fur- nished the vendor an opportunity to remove them. 15 If no time for the completion of the contract be fixed, the vendor may perfect the title at any time before it is demanded by the purchaser. 16 And after demand, he must be allowed a reasonable time in which to make out the title. 17 Where the contract is silent as to the time when the vendor is to convey, the legal implication is that the conveyance is to be made and delivered within a reasonable time for that purpose, after the vendee has tendered performance on his part ; and if the vendor perfects his title within such time, he may enforce specific performance of the contract. 18 In a suit by the purchaser for specific performance, in which a rescission of the contract is not asked as alternative relief, it is error in the court to rescind the contract without giving the vendor a reason- able time in which to perfect the title. 19 If the parties arrange for the removal of an incumbrance prior to performance, without naming a specific day, the removal within a reasonable time is a sufficient performance. 20 We have already seen under what cir- cumstances the purchaser will be deemed to have waived his right to require a strict performance by the vendor at the time fixed for completing the contract. 21 In actions by the vendor to recover the purchase money before the time when he is required by the contract to pass the title, the "Anderson v. Strasburger, 92 Cal. 3S, 27 Pao. Rep. 1095, (citing Knglandcr v. Rogers, 41 Cal. 420; Dennis v. Strasburger, 89 Cal. 583, and East on v. Montgomery, supra). Arnett v. Smith, 11 N. Dak. 55, 88 N. W. Rep. 1037; EdmiHon v. Zaborowski, 9 S. Dak. 40, 68 N. W. Rep. 288; Nicholson v. lieber, (Tex. Civ. App.) 153 S. W. 641. "Evans v. Boiling. 5 Ala. 550; Morgan v. Scott, 2<5 Pa. Si. 51; Gibson v. Brown, 214 111. 330, 73 N. E. Rep. 578. "Sugd. Vend. (8th Am. ed.) 397. Baker v. Shy, 9 Heisk. (Tenn.) 85; Tapp v. Nock, 89 Ky. 414. In this case the sale was made 'March twenty- eighth and the title was perfected and a deed tendered on the following May twenty-eighth. The purchaser was required to accept the de*d, though the property had been bought for speculative purposes during a time of inflated prices and had declined in value before the title wan perfected. "Williamson v. Neeves, 94 Wis. 656, 69 N. W. 806; Goctzmann v. Caldwell, 152 N. Y. Supp. 491. "Russell v. Rhively, 3 Bush (Ky.), 162.. "Cramer v. Mooney, 59 N. J. Kq. 164, 44 Atl. 026. "Ante, oh. 8. OF THE EIGHT OF THE VENDOR TO PERFECT THE TITLE. 877 purchaser cannot defend on the ground that the title is defective, since the vendor may acquire the title before the specified time. It is sufficient if he have a good title at the time when the convey- ance is to be made, and the objection that he had none at the time the contract was made will be unavailing. 22 It is true that equity will not decree specific performance by the purchaser when it appears that the vendor, having no title nor color of title, under- takes to sell the property of a third person, speculating in his chances of acquiring the title from that person. 23 But equity will not always rescind a contract which it refuses to enforce, the parties being left to their remedies at law. 24 And, at law, in the case under consideration, the purchaser, having agreed to pay the purchase money before the time when he is entitled to a convey- ance, must abide the consequences of his contract. Therefore, it has been held that if, by the contract, the purchase money is to be paid in installments, and the conveyance is not to be made until the last installment is paid, the purchaser cannot refuse to pay the purchase money on the ground that the title is defective, 25 unless it appears that, because of the vendor's insolvency, or for some other reason, the purchaser's remedy by action for breach of the contract will prove unavailing. 26 It is scarcely necessary to say that, if the covenants to pay the purchase money and to convey an indefeasible title are mutual and dependent, the vendor will not be allowed time in which to perfect the title, if time be of the essence of the contract. 27 Neither will he be allowed that 2J Ante, 308. Harrington v. Higgins, 17 Wend. (N. Y.) 376; Wright v. Blackley, 3 Ind. 101; Wiley v. Howard, 15 Ind. 169; Taylor v. Johnson, 19 Tex. 351. "Post, 315. "Ante, 283. 25 Ante, 8-8, and Harrington v. Higgins and other cases cited, supra. Diggle v. Boulden, 48 Wis. 477; True v. N". Pac. Ry. Co., 126 Minn. 72, 147 N, W. 948. 2 McIndoe v. Morman, 26 Wis. 588, 7 Am. Rep. 96; Durham v. Hadley, (Kans.) 27 Pac. Rep. 105; Peak v. Gore, 94 Ky. 533. "Post, 311. Harrington v. Higgins, 17 Wend. (N. Y.) 376; Carpenter v. Brown, 6 Barb. (N. Y.) 147, semble; Holmes v. Holmes, 12 Barb. (N. Y.) 137. After a purchaser has exercised his right to rescind for failure of title, under Civil Code of California, section 1689, subdivision 4, which provides that a party to a contract may rescind the same if the consideration, before 878 MARKETABLE TITLE TO KEAL ESTATE. privilege if the case be such that the vendee cannot compel specific performance after the title has been perfected. There must be mutuality of obligation between the parties." Wherever the privilege of perfecting the title is accorded to the vendor he must, as a general rule, pay the costs of the suit; the suit being made necessary by his default. 29 While the vendor, as a general rule, will be allowed time in which to perfect the title, extraordinary relief by way of injunc- tion or the writ of ne exeat will not be granted at the same time. 80 The vendor must show a present ability to perform the contract on his part. Thus, where the contract was for an exchange of lauds, and the complainant prayed an injunction to restrain the defend- ant from receiving the rents and profits of his own property pend- ing the complainant's efforts to remove an incumbrance from the premises he was to give in exchange, the court reversed an order of the court below granting the injunction. 31 The purchaser will not be allowed to forestall the vendor by acquiring an outstanding right and setting it up adversely to the latter." Specific performance will be decreed against the pur- chaser, allowing him the amount paid for the interest. The same rule is enforced at law." The vendor may perfect his title if he chooses, but in the absence of any agreement or covenant to that effect, there is no obligation upon him so to do, and the purchaser cannot recover it is tendered to him, fails in a material respect from any cause, the vendor cannot revive the contract by tendering a conveyance of a pood and sufficient title. Anderson v. Strasburger, 92 Cal. 38. 27 Pac. Rep. 10fl5. White v. Needham, 21 Ky. Law R. 1051, 54 S. W. Rep. 9. "Fishbaek v. Williams, 3 Bibb (Ky.), 342; Jarboe v. McAtee, 7 B. Mon. (Ky.) 279; Lesesne v. Witte, 5 8. C. 402; Bates v. Lyons, 7 S. C. 85; Lyles v. Kirkpatrick, 9 S. C. 2ft5. Where the purchaser has agreed to share the expenses of perfecting the title he must pay his portion of such expenses as they occur, or he cannot enforce the contract. Hutcheson v. McXutt, 1 Ohio. 16. "Brown v. Huff, 5 Paige (N. Y.), 241; Morris v. McNeill, 2 RUM. 604. See, also, 2 Dicken's R. 497, note. "Baldwin v. Baiter, 8 Paige (N. Y.), 472. "Murrell v. Ooodyear, 1 De O., F. & J. 432; Westall v. Austin, 5 Ired. Eq. (N. C.) 1; Kindley v. Gray, 6 Ired. Eq. (N. C.) 445; Bush v. Marshall. How. (U. 8.) 691: Roller v. Effinger, (Va.) 14 S. E. Rep. 337. "Ante. | 202. Fongate v. Herkimer Mfg. Co.. 12 Barb. (X. Y.) 352. OF THE BIGHT OF THE VENDOR TO PERFECT THE TITLE. 879 damages against him for refusing to perfect the title. 34 Nor can the purchaser recover damages from the vendor for loss of the use of the premises while the title is being perfected, in the absence of anything to show that he could not have taken im- mediate possession of the premises. 35 The purchaser waives performance within the time limit by returning the abstract with his objections after the expiration of the specified time for performance. 36 309. AFTER THE TIME FIXED FOR COMPLETING THE CON- TRACT. If the time for completing the contract has elapsed, the vendor may nevertheless insist upon his right to perfect the title, except in certain cases hereafter to be mentioned. 37 As a general rule it is sufficient if he be able to convey a good title at any time before decree in any proceeding in which it is sought to rescind or to enforce the contract. 38 He may perfect the title at any time "Fresbrey v. Kline, 20 D. C. 513. 35 Reed-Allen Co. v. Spencer, (Tex. Civ. App.) 138 S. W. 806. "Carroll v. Mundy, (Iowa) 170 N. W. 790. "Post, 310. 38 Fry Sp. Perf. (3d Am. ed.) 1349; 2 Dan. Ch. Pr. 1195, n.; Adams Eq. (5th Am. ed.) 199, 200; Langford v. Pitt, 2 P. Wms. 631; Boehm v. Wood, 1 Jac. & Walk. 419; Haggart v. Scott, 1 Russ. & Myl. 293; Seton v. Slade, 7 Ves. 270; Eyston v. Seymond, 1 Yo. & Coll. E. C. 608; Hepburn v. Dunlop, 1 Wh. (U. S.) 196; McKay v. Carrington, 1 McLean (U. S.), 64; Greogory v. Keenan, 256 Fed. 949; Owens v. Cowan, 7 B. Mon. (Ky.) 152; Gaither v. O'Doherty, (Ky.) 12 a W. Rep. 306; Spicer v. Jones, (Ky.) 1 S. W. Rep. 810; Holmes v. Holmes, 107 Ky. 163, 53 S. W. Rep. 29; Pierce v. Nichol, 1 Paige (N. Y.), 244; Dutch Church v. Mott, 7 Paige (N. Y.), 77; Voorhees v. De Meyer, 2 Barb. (N. Y.) 37; Baumeister v. Demuth, 82 N. Y. Supp. 831, 84 App. Div. 394; Baldwin v. McGrath, 83 N". Y. Supp. 582, 41 Misc. Rep. 39; Weinheimer v. Ross, 205 N. Y. 518, 99 N". E. 145; Pakas v. Clarke, 121 1ST. Y. Supp. 192, 136 App. Div. 492; Jenkins v. Whitehead, 15 Miss. 577; Moss v. Davidson, 9 Miss. 112; Fletcher v. Wilson, 1 Smed. & M. Ch. (Miss.) 376; Luckett v. Williamson, 37 Mo. 388; Isaacs v. Skrainka, 95 Mo. 517, 8 S. W. Rep. 427; Hobson v. Lenox, (Mo. App.) 201 S. W. 964; Wilson v. Tappan, 6 Ohio, 172; Dubose v. James, McMull. Eq. (S. C.) 55; Morgan v. Scott, 26 Pa. St. 51; Townsend v. Lewis, 35 Pa. St. 125; Hunter v. Lewis, 234 Pa. 134, 82 Atl. 1100; Syne v. Johnston, 3 Call (Va.), 558; Second Univ., etc., Soc. v. Hardy, 31 N. J. Eq. 442; Young v. Collier, 31 N. J. Eq. 444; Mc- Kinney v. Jones, 55 Wis. 39; Mitchell v. Allen, 69 Tex. 70; Burwell v. Sollock, (Tex. Civ. App.) 32 S. W. Rep. 844; Coleman v. Bank, 115 Ala. 307, 22 So. Rep. 84; Stevenson v. Polk, 71 Iowa, 288, 32 N. W. Rep. 340; Mock v. Chalstrom, 121 Iowa, 411, 96 N. W. Rep. 909; Perrin v. Chidester, 159 Iowa MARKETABLE TITLE TO REAL ESTATE. before decree by obtaining a release of incumbrances ** or of ad- verse claims/ Therefore, where the contract required the convey- ance of a fee and the vendor had only a life estate, but pending a suit by him for specific performance the life estate fell in, the purchaser was compelled to complete the contract. 41 So, also, where the vendor became divested of the title, but reacquired it 31, 139 N. W. 930; Allen v. Adams, 162 Iowa 300, 143 N. W. 1092; 'Maryland Const. Co. v. Kuper, 90 Md. 529, 45 Atl. 197; MeXeill v. Fuller, 121 N. C. 209, 28 S. E. Rep. 299; Hobson v. Buchanan, 96 N. C. 444; Allstead v. Nicol, 123 Cal. 594, 56 Pac. Rep. 452; Schwartz v. Woodruff, 132 Mich. 513, 93 N. W. Rep. 1067 ; Seaver v. Hall, 50 Neb. 878, 70 N. W. Rep. 373, 72 N. W. Rep. 217; Wetternach v. Investment Co., 77 Wash. 144, 137 Pac. 442; Milton v. Crawford, 65 Wash. 145, 118 Pac. 32; Rollyson v. Bourn, (W. Va.) 100 S. E. 682; Monarch, etc., Co. v. Washburn, 89 Kan. 874, 133 Pac. 156; Dore v. So. Pac. R. Co., 163 Cal. 182, 124 Pac. 817; Wynne v. Morgan, 7 Ves. 202. This is a much cited case. The suit was by the vendor for specific per- formance. The defendant, in his answer, did not object that time was ma- terial, and time was accordingly allowed in which to procure an act of parliament removing an objection to the title; and the act was procured in three months thereafter. The rule was thus stated : " Where the time at which the contract was to be executed is not material, and there is no unreasonable delay, the vendor, though not having a good title at the time the contract was to be executed, nor when the bill was filed, but being able to make a good title at the hearing, is entitled to a specific performance." Approved in Richmond v. Gray, 3 Allen (Mass.), 25. If the purchaser acquiesce in steps by the vendor to procure the title, he must accept the same if made out at the hearing. Haggart v. Scott, 1 RUBS. & Myl. 293. In Hale v. New Orleans, 18 La. Ann. 321, it seems to have been held that the vendor had no right in that case to perfect the title after the purchaser had begun a suit for rescission. The vendor may perfect the title and tender a deed at any time before final decree for rescission is actually enrolled and signed. Fraker v. Brazelton, 12 Lea (Tenn.), 278; Clifton v. Charles, 53 Tex. Civ. App. 448, 116 S. W. 120, seems to hold that the vendor must have had title at the time h commenced his suit for specific performance. In Van Riper v. Wickersham, 76 N. J. Eq. 232, 76 Atl. 1020; Ann. Cas. 1912 A. 319, it waa held that time would be allowed the vendor, even after decree, in which .to perfect the title, he having been prevented by the conduct of the purchaser from sooner perfecting the title. "Soper v. Kipp, 5 N. J. Eq. 383; Young v. Collier, 31 N. J. Eq. 444. *Eyston v. Symond, 1 Yo. & Col. Ch. 608; McKay v. Carrington, 1 Me- Lean (U. 8.), 64; Voorhees v. De Meyer, 2 Barb. (N. Y.) 37. The vendee cannot refuse to perform the contract on the pround that the vendor has per- mitted the premises to be sold for delinquent taxes, if the time in which the premise* may be redeemed has not expired. Marsh v. Wyckoff, 10 BMW. (N. Y.) 202. * Jenkins v. Fahig, 73 N. Y. 358. OF THE EIGHT OF THE VEKDOB TO PERFECT THE TITLE. 881 pending suit by the purchaser for rescission. 42 And where the vendor, pending a suit by him for specific performance had, by mistake, conveyed the subject-matter of the suit with other parcels to a stranger, but procured a conveyance before the hearing, the purchaser was required to complete the contract. 43 Where the con- tract does not provide a time within which the vendor is to remove defects shown by the abstract, a reasonable time should be allowed therefor. 44 If the purchaser call upon the vendor to perfect the title by a proceeding in court, he thereby consents that the vendor shall have a reasonable time in which to take such proceeding. 45 The general statement frequently met with in the reports and text books, that the vendor may perfect the title at any time before decree in the cause in which the right is claimed, is rather vague and indefinite. Time may not have been material at the day fixed for completing the contract, nor at the time when suit for specific performance was begun, but may become so before a hearing and decree be had; these may not transpire for many months, and sometimes years, after the institution of the suit. The rule then, it is conceived, should be taken with this qualification, namely, that if at the hearing, the value of the property, the situations of the parties, and the general circumstances of the transaction have so changed as to render it inequitable to compel the purchaser to receive the perfected title, specific performance on his part will be denied. 42 Jenkins v. Whitehead, 7 Sm. & M. (Miss.) 577. a Wooding v. Grain, 10 Wash. 35, 38 Pac. Rep. 756. As to the right to rescind where the vendor has conveyed the premises to a stranger, see post, 315. "1 Sugd. Vend. (8th Am. ed.) 397. Easton v. Montgomery, 90 Cal. 307, 27 Pac. Rep. 280. Thirteen months are more than a reasonable time in which to procure releases of mortgages not appearing upon the record to have been satisfied. Ailing v. Vanderstucken, (Tex. Civ. App.) 194 S. W. 443. A provision that the seller should furnish a merchantable abstract of title within ten days from the date of the contract, and a deed to the property within three days after the title was found to be good, does not require that the title shall be perfected within the three days after delivery of the abstract. The seller is entitled to a reasonable time in which to correct irregularities. Evana v. Gerry, 174 111. 595, 51 N. E. Rep. 615. * 5 Colpe v. Lindblom, (Wash.) 106 Pac. 634. Ill 882 MARKETABLE TITLE TO REAL ESTATE. Of course if the purchaser knows at the time of the contract that the title is defective, and that some time will be required to remove the objections, he cannot insist upon a rescission withoiit affording the vendor an opportunity to perfect the title. 46 Where neither the terms of the contract nor the circumstances of the parties make per- formance at the specified time material, the purchaser cannot, on finding the title defective, rescind the contract without notifying the vendor to remove the defects 1 within a reasonable time. 47 The question whether the vendor, after he has conveyed the premises to the purchaser with covenants for title, will be allowed to perfect the title by purchasing the rights of an adverse claimant, and re- quiring the purchaser to take the after-acquired title in lieu of damages for breach of the covenants, has already been considered. 48 The vendor cannot have an indefinite time in which to perfect the title. 49 In a case in Xew York, the trial judge directed that the vendor should, by proceedings to be instituted by him within sixty days against certain parties having adverse interests, estab- lish a particular fact necessary to the validity of his title. On appeal this was held error, the court saying: "The effect of this order was to change utterly the purchaser's contract, and bind him to an agreement which he never made. It left the period of performance entirely uncertain and indefinite. The seller could begin his proceeding within sixty days, and after that was free to pursue the litigation at his pleasure, while the purchaser re- *Ante, 85. 1 Sugd. Vend. (8th Am. cd.) 407; Fry Sp. Perf. $ 1307; Seton v. Slade, 7 Vea. 265, a leading case. Barrett v. Gaines, 8 Ala. 373? Craddock v. Shirley, 3 A. K. Marsh. (Ky.) 288; Jackson v. Ligon, 3 Leigh (Va.), 161; Reeves v. Dickey, 10 Orat. (Va.) 138. "Schiffer v. Dietz, 83 N. Y. 300; Myers v. DeMeier, 52 N. Y. 647. "Ante, 8 215. Eller v. Newell, 159 Iowa, 711, 141 N. W. 62; Carroll v. Mundy, 185 Iowa 527, 170 S. W. 790; Raymond, etc., Co. v. Sharp, (Tex. Civ. App.) 175 S. W. 490; Maupai v. Jackson, 118 N. Y. Supp. 513. Where the vendor reserves the right to perfect his title by proceedings in- court, he must promptly institute such proceeding as is found to be necessary. Brya v. Thomas, 186 111. App. 281. Reasonable delay of the vendor in removing liens on the property is no ground for refusing specific performance where time was not of the essence of the contract. Rollyson v. Bourn, (VV. Va.) 100 S. E. 682. OF THE EIGHT OF THE VENDOR TO PERFECT THE TITLE. 883 mained bound for an unknown period, with no guaranty of getting a title in the end. 50 The vendor cannot take advantage of the purchaser's failure to promptly rescind when the delay was caused by the vendor's promise to cure a defect in the title. 51 While the vendor may, as a general rule, perfect the title at any time before decree, he cannot, by perfecting his title, provide grounds on which to recover damages from the purchaser in reject- ing the title at the time fixed for performance of the contract by the parties. 52 The question whether the vendor exercised sufficient diligence in perfecting the title is for the court. 53 310. Exceptions to the rule: (i) Where time is of the es- sence of the contract. The rule which allows the vendor to remove objections to the title after the time fixed for completing the con- tract does not apply where time is of the essence of the contract. 54 Thus, if a man buy a house, to be used by him as a residence, 55 or if he buy property for speculative purposes, or for the purposes of trade or manufacture, or for any other purpose which would be defeated by compelling him to await the vendor's efforts to perfect the title, specific performance by him will not be enforced if the vendor be unable at the appointed time to convey such a title as the 50 People v. Open Board, etc., 92 1ST. Y. 98. In Emerson v. Roof, 66 How. Pr. (N. Y.) 125, the purchaser was allowed twenty days in which to perfect the title. "Scott v. Desire, 175 111. App. 215; Lancaster v. Roberts, 144 111. 213, 33 N. E. 27. "Ethington v. Rigg, 173 Ky. 355, 191 S. W. 98. "Lewis v. Woodbine Sav. Bank, (Iowa) 174 N. W. 19; Downing v. Anders, (Mo. App.) 202 S. W. 297. 64 1 Sugd. Vend. (8th Am. ed.) 404; Fry Sp. Perf. (3d Am. ed.) 1041, et seq. Seibel v. Purchase, 134 Fed. Rep. 484; Rugg v. Realty Co., 261 Pa. 453, 104 Atl. 685; Janulewycz v. Quagliano, 88 Conn. 60, 89 Atl. 897, Ky. Distilleries Go. v. Blanton, 149 Fed. 31; Butterfield v. Harris, 20 Cal. App. 471, 129 Pac. 614; Minto v. Moore, 1 Ala. App. 556, 55 So. 542; Smith v. Browning., 157 N. Y. Supp. 71, 171 App. Div. 278. 55 Gedye v. Duke of Montrose, 26 Beav. 45; Tilley v. Thomas, L. R., 3 Ch. 61. Distinguish these cases from Webb v. Hughes, L. R., 10 Eq. 281, where the conditions of sale provided that if from any cause whatever the purchase should not be completed on a specified day, interest should be paid on the purchase money. Time was allowed in which to perfect the title, though the premises were bought for immediate occupation as a residence. 884: MARKETABLE TITLE To REAL ESTATE. contract requires. 5 * Time will not be deemed to have been of the essence of the contract where the purchaser knew that there were defects in the title which could only be removed by legal proceed- ings for that purpose." Time may be made material by express stipulation in the contract, by the surrounding circumstances of the parties, and by notice that the party giving it will exercise his right to rescind unless the contract be completed within a certain time. 58 If the thing sold be of greater or less value, according to the efflux of time, then time is of the essence of the contract. 59 It should be observed here that the right to perfect the title after the time fixed for completing the contract is a concession to the vendor- by the courts of equity. At law time is always deemed of the essence of the contract ; and, if the vendor cannot produce a clear title at the appointed time, the purchaser will be entitled to his action for damages. 6 * As a general rule the objection that time is material cannot be made if the title to a small part, only, of the premises has failed. The vendor may perfect his title to that part, and specific perform- 54 Fry Sp. Perf, (3d Am. ed.) 1044, et seq. Going v. Oakland, etc., Soe., 117 Mich. 230, 75 N. W. Rep. 462. Where property was purchased for im- mediate use as a lumber yard, a delay of four months in perfecting the title was held material. Parsons v. Gilbert, 45 Iowa, 33. "Kemper v. Walker, 17 Ky. Law R. 1100, 32 S. W. Rep. 1093. "Post, "Exceptions," 4, 8 and 9. Fry Sp. Perf. (3d Am. ed.) 1044, et seq. Express stipulation in the contract, Mackey v. Ames, 31 Minn. 103, 16 N. W. Rep. 541 ; by notice, Myers v. De Meier, 4 Daly (N. Y.), 343; affd., 52 X. Y. 647; Emerson v. Roof, 66 How. Pr. (N. Y.) 125; Carrabine v. Cox, 136 -Mo. App. 370, 117 S. W. 616; Mansfield v. Wiles, 221 Mass. 75, 108 N". E. 901, where the delay was caused by the inability of the purchaser to raise the purchase money. Where the parties agreed that the contract should be rescinded unless the title was perfected by a certain day and the title was perfected by a decree entered on that day, the purchaser was required to perform. Peterson v. Hultz, 96 Neb. 406, 147 N. W. 1126. Time will not he considered of the essence of the contract unless it so expressly appears, or IH to lie implied from the surrounding circumstances. King v. Connors. 222 Mass. 261. 110 X. E. 289. "Hepwell v. Knight, 1 Yo. 4 Coll. 419; Hoyt v. Tuxbury, 70 111. 331. 1 Sugd. Vend. (8th Am. ed.) 397 (26). Frnzier v. Boggs, 37 Fla. 307, 20 So. Rep. 245; Sachs v. Owings, 121 Va. 162, 92 S. E. 997. This operates no very great hardship upon the vendor, as, according to the generally prevalent rule, the purchaser could recover damages only to the extent of the purchase money paid. Ante, f 91. OF THE EIGHT OF THE VENDOR TO PERFECT THE TITLE. 885 ance will not be denied. 61 It is apprehended that this rule would not apply if the part to which the title had failed, though small, was the principal inducement to the contract. If the purchaser intends to insist upon time as a material ele- ment of the contract, he should demand a title and offer to rescind at the time fixed for completing the contract if the vendor be un- able to perform. If he continues in possession and proceeds with the payment of the purchase money after that time, he cannot, as a general rule, deny the right of the vendor to perfect the title. 62 If he gives time after the day fixed for the performance of the con- tract, or encourages the vendor in his efforts to perfect the title, he will, in most cases, be deemed to have waived the objection that time was material. 63 The vendor as well as the purchaser may avail himself of the objection that time was of the essence of the contract. He cannot be compelled to hold property, fluctuating in value, until the purchaser can pay for it. 64 But if time were w 1 Sugd. Vend. (8th Am. ed.) 331 (218). Chamberlain v. Lee, 10 Sim. 444. "Evans v. Boiling, 5 Ala. 550. He waives the objection that time was material by retaining the abstract until after the expiration of the time in which he was to point out objections to the title. St. Clair v. Hellweg, 173 Mo. App. 660, 159 S. W. 17. M Stevenson v. Polk, 71 Iowa, 278, 32 N. W. Rep. 340; Garrison v. Newton, 96 Wash. 284, 165 Pac. 90. The purchaser does not, by a few days' indulgence of the vendor to enable him to complete the title, lose his right to insist upon time being of the essence of the contract. Garrett v. Cohen, 117 N. Y. Supp. 129, 63 Misc. Rep. 450. The purchaser cannot take advantage of a failure to furnish a satisfactory abstract within the time required by the contract, where he acquiesced in the efforts of the vendor to perfect the title after the expiration of that time. Plummer v. Kennington, 149 Iowa 419, 128 N. W. 552. What is meant by the maxim that time is not of the essence of the contract in equity, has been nowhere more clearly stated than in Mr. Bispham's Principles of Equity (3d ed.), 391: "A court of equity will relieve against, and enforce specific performance, notwithstanding a failure to keep the dates assigned by the contract, either for the completion, or the steps towards completion, if it can do justice between the parties, and if there is nothing in the express stipulations between the parties, the nature of the property, or the surrounding circumstances which would make it inequitable to interfere with and modify the legal right. This is what is meant and all that is meant when it is said that in equity time is not of the essence of the contract." Language of Lord? CAIBNS in Tilley v. Thomas, L. R., 3 Ch. App. 67. 64 Fuller v. Hovey, 2 Allen (Mass.), 325; Goldsmith v. Guild, 10 Allen (Mass.), 239. Here the contract was dated March nineteenth, and was to be 886 MARKETABLE TITLE To REAL ESTATE. not material lie cannot refuse to convey because the purchase money was not paid on the day fixed. 65 It is obvious that the pur- chaser cannot object that time is material when he is in possession, and the failure to convey is brought about by his default in the payment of the purchase money ; M nor in a case in which he waived a provision that time should be of the essence of the contract. 67 And it has been held, even in a case in which time was made of the essence of the contract, that the purchaser could not resist the payment of the purchase money on the ground that the vendor had not the title on the day fixed for the performance of the contract, if he, the purchaser, failed to tender the purchase money on that day, and the vendor afterwards acquired the title and tendered a deed before bringing his action for the purchase money. 68 If time be material, the purchaser may rescind if there be in- cumbrances on the property which the vendor cannot remove at the time fixed for performance. 69 The rule that the vendor may rely on the purchase-money as a means of discharging the incum- brances does not apply in such a case. 311. (2) Mutual and dependent covenants. Nor does the rule which permits the vendor to perfect the title apply where the covenants for payment of the purchase money and delivery of the deed are mutual and dependent, and the vendor, at the time fixed by the contract, has not euch title as he covenanted to convey, 70 and completed in ton days. The purchaser offered to perform March thirty-first, hut the vendor refused. Specific performance was denied, there being evidence that the value of the property had changed. But in Barnard v. Lee, 97 Mass. 92, where the purchase money was to have been paid on April first, hut was not tendered till the twenty-fifth of the: following May, specific performance hy the vendor was decreed, the purchaser having in the meanwhile entered upon and improved the land, with bin knowledge and consent. Brashier v. Oratr, 6 Wh. (U. S.) 533. See, also, Preabrey v. Kline, 20 D. C. 513. Taylor v. Longworth, 14 Pet. 174. "CasHell v. Cooke, 8 8. & R. (Pa.) 2tf8, 11 Am. Dec. 610. *Opejon v. Engere, 73 Wash. 324, 131 Pac. 1146. Augsberg v. Meredith, 101 111. App. 020. Johnson v. Herbat. 140 Minn. 147, 167 N. W. 356. "Stitxel v. Copp, 9 W. 4 S. (Pa.) 20; Magaw v. Lothrop, 4 W. A S. (Pa.) 321; Clark v. Wei*, 87 111. 43S, 29 Am. Rep. 60; Tryce v. Dittus, 199 111. 189, 65 N. E. Rep. 220; Hudson v. Max Meadows I* 4. I. Cto., 99 Va. 537, OF THE EIGHT OF THE VENDOR TO PERFECT THE TITLE. 887 this though no demand for the deed was ever made, the time for delivering the deed having been specified in the contract. 71 But if the covenants to make title on the one part, and to pay the pur- chase money on the other, are independent, and the passing of the title is subject to the payment of the purchase money as a condi- tion precedent, the vendor may, at any time, perfect his title before the purchase money is paid, and it is no defense to an. action for the purchase money that the title is incomplete. 72 312. (3) Waiver of right. If the purchaser objects to the title and declares that he will not complete the contract, and the seller acquiesces, in the declaration, he cannot afterwards remove the objections to the title and require the purchaser to accept a con- veyance. 73 So, e converse, as we have seen, a purchaser who re- fuses to complete the contract on account of a defect in" the title, cannot afterwards demand specific performance by the vendor. 74 313. (4) Loss and injury to purchaser. The rule that the vendor may perfect the title 1 after the time fixed for completing the contract, does not apply where to enforce it would entail loss and injury upon the purchaser, 70 as where the land has greatly depreci- ated in value pending the removal of objections to the title. 76 39 S. E. Rep. 215; Meshew v. Southworth, 133 Mich. 335, 94 1ST. W. Eep. 1047; Williams v. Gilbert, 120 Minn. 299, 139* N. W. 502; Whitney Co. v. Smith, 63 Oreg. 187, 126 Pac. 1000; Reid v. Johnson, 121 N. Y. Supp. 750. If the vendor is not required by the contract to tender a deed until the pur- chase money has been tendered to him, he has until that time in which to perfect his title. Winkler v. Jerrue, 129 Pac. 804. 71 Craig v. Martin, 3 J. J. Marsh. (Ky.) 50, 19 Am. Dec. 157. "Ante, 86, 253. Robb v. Montgomery, 20 Johns, (N. Y.) 15; Greenby v. Cheevers, 9 Johns. (N. Y.) 126. 73 1 Sugd. Vend. (Sth Am. ed.) 408. Guest v. Homfray, 5 Ves. 818. 74 Ante, 193. Presbrey v. Kline, 20 D. C. 513. 75 Maupai v. Jackson, 124 N. Y. Supp. 220, 139 App. Div. 524. If the lapse of time in perfecting the title caused' no material change in the subject matter or in the relations of the" parties, the vendor is entitled to specific performance. Begen v. Pettus, 140 N. Y. Supp. 765, 80 Misc. Rep. 120. 79 Bisph. Eq. (3d ed.) 394 ; 2 Beach Mod. Eq. Jur. 495; McKay v. Car- rington, 1 McLean (U. S.), 50; Jackson v. Edwards, 22 Wend. (N. Y.) 518; Dutch Church v. Mott, 7 Paige Ch. (N. Y.) 77; Nodine v. Greenfield, 7 Paige Ch. (N". Y.) 544, 34 Am. Dec. 363; Garnett v. Macon, 6 Call (Va.), 308, 370; Morriss v. Coleman, 1 Rob. (Va.) 478; McAllister v. Harmon, 101 Va. 17; 42 S. E. Rep. 920; Hendricks v; Gillespie, 25 Gratt. (Va.) 181, in which case 888 MARKETABLE TITLE To BEAL ESTATE. Therefore, where the improvements on the premises were destroyed by fire after the time fixed for completing the contract, and the vendor furnished no sufficient excuse for not tendering a suffi- cient deed at the appointed time, it was held that he could not thereafter claim the right to perfect the title. 77 Injury from mere delay in making title will not be presumed; the burden devolves on the purchaser to show that he has been or will be injured by the delay. 78 If the object of the purchaser be to resell, and by reason of a defect in the title he loses an opportunity to sell, time will be deemed of the essence of the contract. 7 " 314. (5) Fraud of the vendor. The vendor cannot enforce the rule in any case in which he has been guilty of fraud or has the war of 1861-1865 intervened between the purchase of the land and the vendor's suit for specific performance, so that the value of the land had greatly depreciated. In Hephurn v. Auld, 5 Cranch (U. S.), 270, LIVINGSTON, J., observed: "It is said by the English authorities that lapse- of time may be disregarded in equity in decreeing a specific performance of a contract for the sale of land. But there is a vast difference between contracts for land in that country and this. There the lands have a known, fixed and staple value. Here the price is continually fluctuating and uncertain. A single day often makes a great difference, and in almost every case time is a very material circumstance." These remarks were approved in Richmond v. Gray, 3 Allen (Mass.), 25, the court adding: "At the present day business is done with such comparative speed, and changes of property and in places of business are BO frequent, that it would in most cases be inequitable to compel a party to accept property after any considerable delay, or to compel him to keep his funds unemployed through fear that the court may order him to accept it, on terms of delay that he has never assented to." In Darrow v. Horton, 6 N". Y. State Rep. 718, an objection to the title not having been removed until after the usual renting period, whereby an opportunity to rent the premises was probably lost, specific performance at the suit of the vendor was denied. Where time was not originally of the essence of the contract, a delay of two months in making title was held immaterial, even though the premises had somewhat decreased in value. Tapp v. Nock, (Ky.) 12 S. W. Rep. 713. Delay of three months and twenty days after last installment of purchase money became due, held not material, no injury to the purchaser being -Imxvn. Wooding v. Crain, 10 Wash. 35, 38 Pac. Rep. 756. "Smith v. Cansler, 83 Ky. 367. w Merchants' Bank v. Thompson, 55 N. Y. 7. "Spaulding v. Fierle, 86 Hun, 17, citing Merchants' Bank v. Thompson, 55 N. Y. 7, and Schmidt v. Reed, 132 N. Y. 116, 30 N. E. Rep. 373, in neither of which cases, however, does it appear that an opportunity to resell had been loet. OF THE RIGHT OF THE VENDOR TO PERFECT THE TITLE. 889 acted in bad faith in respect to the title. 80 This exception, of course, cannot apply if the purchaser -bought with knowledge that the title was defective. 81 The exception will toe enforced as well where the contract has been fully executed as where it is executory. Thus, a covenantor who fraudulently conceals the state of the title cannot compel the covenantee to accept an after-acquired title in satisfaction of the covenants. 82 But a mere innocent misrepre- sentation of the title will not deprive the vendor of his right to per- fect the title. 83 And if the vendee waives the fraud ach Mod. Eq. Jur. 592. Prothro v. Smith, 6 Rich. Eq. (S. C.) 324; Mansfield v. Wiles, 221 Mass. 75; 108 N. E. 901; Keater v. Ferguson, 20 S. D. 473; 107 N". W. 678; 129 Am. St. Rep. 947. 25 Ante, Exception 7. Hatch v. Cobb, 4 Johns. (N. Y.) 559. Jackson v. Ligon 3 Leigh (Va.), 161. 29 Fry Sp. Perf. (3d Am. ed.) 1064, and cases there cited. Spencer v. Lyman, 27 8* D. 471 j 131 N. W, 802. 113 898 MARKETABLE TITLE TO KEAL ESTATE. shown within five weeks, was held unreasonable and ineffectual." It is not necessary, for the purposes of this exception, that the notice should be in writing. 28 319. rN WHAT PROCEEDINGS THE VENDOR MAY CLAIM THE RIGHT TO PERFECT THE TITLE. Obviously the right of the vendor to perfect the title while the contract is executory, may be asserted in any proceeding in equity in which specific perform- ance is claimed by him, or rescission is sought by the purchaser. 29 But in an action at law to recover back the purchase money, or for breach of the contract, except in those States in which the dis- tinction between legal and equitable procedure is abolished, or in which equitable defenses may be interposed in actions at law, it is presumed that unless the vendor had perfected his title at the time of trial, 30 he would be forced to seek his relief in equity by suit for McMurray v. Spicer, L. R., 5 Eq. 527. Notice on Dec. 23d that title must be made by next following Jany. 1st, held insufficient in Thompson v. Dulles, 5 Rich. Eq. (S. C.) 370. "Nokes v. Lord Kilmorey, 1 DeG. & Sm. 444. "Hughes v. McNider, 90 N. C. 248. On bill by the purchaser for rescission, the vendor should be allowed a reasonable time in which to clear up the title. Metcalf v. Dalian, 4 J. J. Marsh. (Ky.) 196; Jackson v. Murray, 5 T. B. Mon. (Ky.) 184; 17 Am. Dec. 53. The vendor may remove a technical objection to the title in a suit by the purchaser to enjoin the collection of the purchase money. Mays v. Swope, 8 Gratt. (Va.) 46. See, also, McCann v. Edwards, 6 B. Mon. (Ky.) 2O8. In Hell v. Sternberg, 53 Kans. 571, the vendor, after being sued by the purchaser to recover back the purchase money, was allowed to perfect the title. But see Pipkin v. James, 1 Humph. (Tenn.) 325, 34 Am. Dec. 652, where it seems to have been held that the vendor can- not perfect the title after a suit to recover back the purchase money has been begun. See, also, Lutz v. Comptom, 77 Wis. 584; 46 N. W. Rep. 889; Goetz v. Waters, 34 Minn. 241; 25 X. W. Rep. 404. This may be doubted; the purchaser would always have it in his power to defeat the vendor's right to perfect the title by bringing an action to recover back what had been paid. In Beauchamp v. Handley, 1 B. Mon. (Ky.) 136, it was said that a vendor when sued for damages for breach of contract in failing to make title at the specified time, is not obliged to avail himself of the defense that he has perfected the title, but may set up that fact as a defense in a MI it to enjoin him from collectiong the purchase money; and that, though the judgment for damages in favor of the purchaser was a virtual rescission of the contract. *Lutz v. Compton, 77 Wis. 684; 46 N. W. Rep. 889. In an action by the vendor to recover damages against the vendee for breach of hia contract to exchange lands with the plaintiff, the latter may offer in evidence a deed OF THE RIGHT OF THE VENDOR TO PERFECT THE TITLE. 899 specific performance, or by injunction against the purchaser's pro- ceedings at law. In either case, it is apprehended that a judg- ment at law against the vendor would not be a bar to the proceed- ing in equity by him, claiming the right to perfect the title, unless the ground of his application to equity would constitute a defense or claim of which he might have availed himself at law. But if the vendor goes to trial at law insisting upon the sufficiency of the title, and judgment is rendered against him, it may be doubted whether he would afterwards be allowed time in which to remove objections to the title. 31 But wherever the distinction between legal and equitable procedure has been swept away, it is appre- hended that in any case in which the right to perfect the title exists, and in any action by the vendor to recover the purchase money, 32 or by the purchaser to recover back what has been paid, 33 or to recover damages for a breach of the contract, 34 except in cases of fraud, the vendor may show that he has perfected the title, and thereby removed all ground for the purchaser's claim or defense. In New York, however, it has been held that if neither party, in an action for damages for breach of contract to convey curing a defect in his title, which wag executed before the action was brought. Burr v. Todd, 41 Pa. St. 206. 31 In Hayes v. Tribble, 3 B. Mon. (Ky.) 106, the purchaser obtained an injunction against a judgment for the purchase money on the ground that the title was unmarketable. The defendant, instead of asking time to remove the objections to the title, claimed that they were untenable, and tendered a conveyance which the court below decreed that the complainant should ac- cept. This was reversed on appeal, and the vendor, defendant having gone to trial below on the sufficiency of the objections to the title, time in which to remove them was refused. 12 As in Williams v. Porter (Ky.), 21 S. W. Rep. 643 (not officially re- ported) ; Widmer v. Martin, 87 Cal. 88; 25 Pac. Rep. 264; Keep v. Simpson, 38 Tex. 203; Lessly v. Morris, 9 Phila. (Pa.) 110; 30 Leg. Int. 108, where held that incumbrances might be removed up to the time of trial. In an action for the purchase money of land, the purchaser cannot defend on the ground that the conveyance to him is defective in that it fails to contain in the body thereof the name of a party who signed it, if at the trial the vendor tenders a deed in which the objection is removed. Keeble V. Bank, (Ala.) 9 So. Rep. 583. * Lockwood v. Hannibal & St. J. R. Co., 65 Mo. 233. 34 In Haynes v. Farley, 4 Port. (Ala.) 528, it seems to have been con- sidered that the vendor cannot perfect the title after the purchaser has begun an action to recover damages for breach of the contract. 900 MARKETABLE TITLE TO REAL ESTATE. free of incumbrances, asks equitable relief, it will not avail the defendant that incumbrances were removed by him before the trial. 35 The collection of the purchase money will, of course, be sus- pended while the title is being perfected. 3 * The vendor gets in- terest on the purchase money, and the purchaser receives the rents and profits. 37 In some of the States a grantee with covenants for title is allowed an injunction against the collection of the purchase money on failure of the title, where the grantor is insolvent or a non-resident. 38 This relief has been refused where the grantor perfected the title before decree in a suit by the grantee to enforce a lien for the purchase money paid, or to rescind the contract. 39 320. REFERENCE OF TITLE TO MASTER IN CHANCERY. When directed. In suits for the specific performance of contracts for the sale of lands, whether by the vendor or the purchaser, if any question is made as to the ability of the vendor to make title, the court may, at the instance of either party, refer the cause to a master in chancery, or other officer having like duties, with direc- tions to inquire and report to the court whether such a title as the contract requires can be made. 40 It is said that the purchaser is entitled to a reference, even though he knows of no objection to the title. 41 But if it appear that the vendor, at the proper time, dis- closed a good title, the purchaser must pay the costs of the in- quiry. 42 The reference is a matter of right and may be directed without the consent of the other party. 43 And it has been held "Mott v. Aekennan, 02 N. Y. 539; Higgins v. Eagleton, 34 N. Y. Supp. 325. "Jones v. Taylor, 7 Tex. 240; 56 Am. Dec. 48. " 2 Bisph. Eq. | 392. Post, 8 324. "Post, | 331. "Stokes v. Acklen, (Tenn.) : 4 S. W. Rep. 316; McElya v. Hill. 105 Tenn. 31ft; 59 S. W. Rep. 1025. M Sugd. Vend. (8th Am. ed.) 526; Fry Sp. Perf. (3d Am. ed.) 85 1280. et aeq. Jenkins v. Hiles, 6 Ves. 653; Cooper v. Deane, 1 VPS. Jr. 5rtf>. MoComb v. Wright, 4 Johns. Ch. (N. Y.) 659; Beverly v. Lawson, 3 Munf. (Va.) 317. 41 Jenkins v. Hiles, 6 Ves. 646; Middleton v. Selby, 19 W. Va. 167. Lyle v. Earl of Yarborough, John. 70. "Atkinson on Marketable Titles, 226. Brooke v. Clarke, 1 Swanst. 551; Gentry v. Hamilton, 3 Ired. Eq. 376; Beverly v. Lawson, 3 Munf. (Va.) 317. OF THE BIGHT OF THE VENDOR TO PERFECT THE TITLE. 901 error in the court to refuse a reference when asked by either party. 44 As a consequence of the rule that the vendor may perfect the title at any time before a decree upon the merits, the inquiry by the master is not whether a title could be made at the date of the contract, or when the suit for specific performance was begun, but whether the vendor can make out a title at any time before the master makes his report. 45 But if, from any cause, such as a mate- rial change in the value of the property, it would be inequitable to compel a specific performance by the purchaser upon the coming in of the master's report showing that the title has been or may be perfected, it is apprehended that the vendor could irot have a decree. 321. When refused. The court will not direct a reference where the sale was of such title only as the vendor might have. 48 where the purchaser has waived all objections to the title. 47 where the conditions of sale provide that the vendor shall not be required to show a title. 48 The inquiry, if directed, will not be extended to matters expressly excluded by the terms of sale, as where they provide that the production of title shall begin with a particular instrument, or shall not -be extended back beyond a cer- tain period. 49 If a defect in- the title is alleged, and has been prominently put forward in the pleadings, the court may decree or deny specific performance without a reference to the master, 50 as where the bill 44 Middleton v. Selby, 19 W. Va. 167. 45 Fry Sp. Perf. (3* Am. ed.) 1339. 44 Fry Sp. Perf. (3d Am. ed.) 858, 1287. 4r Palmer v. Richardson, 3 Strobh. Eq. (S. C.) 16; Fry Sp. Perf. (3d Am. ed.) 1300, 1305. As- to what amounts to waiver of objections, see ante, Ch. 8. 48 Hume v. Bentley, 5 De G. & Sm. 520. 49 Corrall v. Cattell, 4 M. & W. 734. 50 Fry Sp. Perf. (3d Am. ed.) 1280. Tillotson v. Gesner, 33 N. J. Eq. 313. See Linn v. McLean, 80 Ala. 360. In a suit for specific performance in which want of title is alleged, if the court is satisfied* that the objections to the title exist and* are well founded, it will not direct a reference to the master. Dominick v. Michael, 4 Sandf. (N. Y.) 374. It is not bound to direct a reference in such a case. Paslay v. Martin, 5 Rich. Eq. (S. C.) 351 j Omerod v. Hardman, 5 Ves. 722; Cooper v. Denne, 1 Ves. 565. 902 MARKETABLE TITLE TO REAL ESTATE. and answer discloses that a title cannot be made. 51 Where the validity of the title depends upon a question of law and neither party asks a reference, none should be made; the court itself should decide the question. 52 But if it do not appear from the pleadings that a title cannot be made, it is error to decree a rescis- sion of the contract without directing a reference. 53 In a suit by the vendor for specific performance in which the purchaser answered that the title was defective, but did not ask a reference, and the proof did not show that the title was doubtful, it was held that the court did not err in decreeing specific performance without referring the title. 54 Generally it may be stated that the pur- chaser will not be entitled to a reference where the court is in possession of all the facts affecting the title. 55 322. At what stage of the proceedings reference directed. The inquiry as to title in a suit for specific performance may be made, (1) on motion before answer; (2) on motion after the answer, but before hearing, and (3) at the hearing. 56 In all these cases it seems that the reference will be denied if any question involving the merits other than the sufficiency of the title is to be determined, otherwise the court would fall into the absurdity of having the master's report on the title, and a subsequent decision that there is no subsisting agreement. 57 It further seems, how- ever, that the defendant, after a reference has been made, may tile his answer setting up any defense he pleases. 58 323. Procedure. Costs. Testimony as to all matters of fact material to the title may be taken before the master. 8 * In "2 Dan. Ch. Pr. 1215; Frost v. Brunson, 6 Yerg. (Tenn.) 36. "Jackson v. Ligon, 3 Leigh (Va.), 161. "Frost v. Brunson, 6 Yerg. (Tenn.) 36. See, also, Middleton v. Selhy. 10 W. Va. 1(57. Reference of the title is unnecessary on bill by the purchaser to rescind if the defendant does not allege title in his answer. Buchanan v. Alwell, 8 Humph. (Tenn.) 516. * Core v. Wigner. 32 W. Va. 277 ; 9 S. E. Rep. 36. "Goddin v. Vaughn, 14 Orat. (Va.) 102, 128; Thomas v. Davidson, 76 Va. 338. Fry Sp. Perf. (3 Am. ed.) Sft 1B23, 1324, tt *eq. Middleton v. Selby, 19 W. Va, 175. " Language of Lord KLDON in Morgan v. Shaw, 2 Mer. 138. "Emery v. Pickering, 13 Sim. 583. "The American practice, where the title is referred, is indicated in the OF THE EIGHT OF THE VENDOR TO PERFECT THE TITLE. 903 England it seems that the master takes the advice of conveyancing counsel before passing on the title. The report of the master should state in terms whether the title can or cannot be made out, and, it seems, in what way it can jbe perfected. 60 It has been held, however, that a report merely stating that a good title could be made, was sufficient. 61 If the report be in favor of the title, and no exceptions thereto be filed, specific performance will, as a gen- eral rule, be decreed at the hearing. If the report be against the title, and exception thereto be overruled, the suit will be dis- missed. 62 It seems, however, that even after an exception to the report by the vendor has been overruled, he will be allowed further time in which to remove an objection to the title. 63 If after con- firmation of the master's report a new fact appear by which the title is affected, the report will be recommitted to the master for further inquiry. 64 As a general rule costs are given against the vendor up to the time at which he first shows a good title, since the inquiry results from his default. 65 But if the purchaser be unable to sustain ob- jections to the title upon which the reference was made, costs will be decreed against him. 66 Of course a party excepting to the master's report must pay the costs of the exceptions if they be overruled. 67 following language of Chancellor KENT in McComb v. Wright, 4 Johns. Ch. (N. Y.) 659, 670: " I shall direct the usual reference to a master, to examine whether a good title can be given by the plaintiffs for the house and lot sold to the defendants, and that he give to the defendants' solicitor due notice of the examination, and that the evidence taken in chief in this case on the point of title be submitted to the master, together with such other competent proof as the parties, or either of them, may think proper to furnish, and that he report an abstract of such title, together with his opinion thereon, with all convenient speed." 60 Fry Sp. Perf. (3d Am. ed.) 1346, 1348. "Scott v. Thorp, 4 Edw. Ch. (N. Y.) 1. 82 Dart Vend. (5th ed.) 1111; Fry Sp. Perf. (3d Am. ed.) 1354. 83 Curling v. Flight, 2 Ph. 616; Portman v. Mill, 1 Russ. & Myl. 696. 64 1 Sugd. Vend. (8th Am. ed.) 526; 2 Dan. Ch. Pr. 1218; Fry Sp. Perf. (3d Am. ed.) 1351. Jendvine v. Alcock, 1 Mad. 597. 85 Green v. Chandler, 25 Tex. 148. 88 Phillipson v. Gibbon, L. R., 6 Ch. 434. 67 Scott v. Thorp, 4 Edw. Ch. (N. Y.) 1. 904 MABKETABLE TITLE TO EEAL ESTATE. 324. INTEREST ON THE PURCHASE MONEY WHILE THE TITLE IS BEING PERFECTED. In equity the purchaser of an es- tate is regarded as the owner from the time of the contract, and, being entitled to the rents and profits, is required to pay interest on the purchase money from that time, 68 especially if he be in the actual possession and enjoyment of the estate. 69 But if he be justified in declining to take possession on the ground that there are material objections to the title, he cannot be compelled to pay interest. 70 Nor to incur the expense of " carrying " the property pending the adjustment of a dispute as to his obligation to take the title. 71 And, where a purchaser, finding that the title was de- fective, offered to rescind the contract and return the premises *2 Sugd. Vend. (8th Am. ed.) 314 (627) ; 1 Warvelle Vend. 188. Interest should be allowed on the purchase money only from the date of the decree declaring the title to be marketable. Newman v. Gleason, 132 La. 561 ; 61 So. 620. In Haffy v. Lynch, 77 N. Y. Supp. 587; 38 Misc. 256, a case in which the title was not perfected until thirteen years or more after the sale, the vendor, remaining in possession, was charged with the annual rental value of the property and interest thereon, and penalties, in excess of legal interest, on unpaid taxes and assessments; and the purchaser was charged with the unpaid purchase money and interest thereon from the day of sale, together with taxes and assessments levied since the day of sale. Oliver v. Kalian, 1 Grat. (Va.) 298. "If this rule be not universal, the party who claims an exemption from its operation must bring himself within some established exception." Broc-kenbrough v. Blyth, 3 Leigh (Va.), 619, 647. A purchaser must pay interest on a sum reserved in his hands as an indemnity against an alleged claim of dower, he having had possession of the land, and the right to dower not having been asserted within the statutory period of limitation. Boyle v. Rowand, 3 Des. (S. C.) 553. W 2 Sugd. Vend. (8th Am. ed.) 318 (630), citing Forteblow v. Shirley, 2 Swan 223; Carrodus v. Sharp, 20 Beav. 56; Luckett v. Williamson, 37 Mo. 388, 395, obiter. Kennedy v. Koopman, 166 Mo. 87; 65 8. W. Rep. 1020$ Faile v. Crawford, 52 N. Y. Supp. 353; 30 App. Div. 536; Lowther etc. Co. v. Gunnell, 1S4 Ky. 587; 212 S. W. 593. It has been held that if the objec- tion is that the title is doubtful only and not absolutely bad. the purdia-cr cannot refuse to pay interest on the purchase money. Rohier v. Williams, 2 Curt. (C. C.) 195, 199. But see Hester v. Rockel, 2 Watts 4 S, (Pa.) 365, 371. In Selden v. James, fl Rand. (Va.) 465, it was held that the prosecution of an adverse but groundless claim to the land against the purchaser, by reason of which he detained the purchase money in his hands, would not excuse him from the payment of interest, he being in possession of the estate. This was a case in which the contract had been executed by a conveyance. See, also, Breckenri'!-"- v. Hi.ke, 4 Bibb (Ky.), 272. n Steiner v. Presb. Ch., 45 N. Y. Supp. 624, 7 App. Div. 500. OF THE EIGHT OF THE VENDOR TO PERFECT THE TITLE. 905 to the vendor, and the offer was refused, it was held that he could not thereafter be required to pay interest, even though he was in possession of the estate. 72 But, as a general rule, the act of taking possession is an implied agreement to pay interest, 73 and " it must be a strong case and clearly made out " that relieves the purchaser from that obligation, where he has received the rents and profits. 74 It has been said, however, by the most eminent authority that it cannot be laid down as an absolute rule that a purchaser by private contract shall pay interest from the time of taking possession. 75 It seems that if there be material and valid objections to the title, and the purchaser be obliged to keep his money idle and unpro- ductive in daily expectation of a perfected title, he will be relieved from the payment of interest, even though in possession, 76 provided the vendor was notified that the purchase money was lying dead. 77 "Rutledge v. Smith, 1 McCord Ch. (S. C.) 402. 73 Fludyer v. Cocker, 12 Ves. 25; Kutzinger v. Enering, (Iowa) 174 N. W. 1038. 74 Powell v. 'Matyr, 8 Ves. 146. "2 Sugd. Vend. (8th Am. ed.) 317 (629). Comer v. Walker, Key. lib. A, 1784, fol. 625, where the purchaser had heen in possession twenty-two years. He was required to pay only a low rate of interest, such as he might have realized from securities readily convertible into money. Where the purchaser has been harassed or disturbed in the possession, where there has been willful and vexatious delay or gross or criminal laches in the vendor, where there are any well-founded doubts of the title, or where from neglect, or other cause, for a long time no person is appointed to whom payment can be made, it should be referred to a jury to say whether the purchaser should be required to pay interest. 75 2 Sugd. Vend. (8th Am. ed.) 315 (628). Jenkins v. Fahig, 73 N. Y. 355, obiter. Osborne v. Bremer, 1 Des. (S. C.) 486; Hunter v. Bales, 24 Ind. 303. The presumption is that the money is unproductive in the vendee's hands, and he is not chargeable with interest, unless he used it, which use it devolves on the vendor to prove. Hunter v. Bales, 24 Ind. 294, 304; Bass v. Gilliland, 5 Ala. 761. A purchaser who is prevented from improving the land by a suit against his vendor for recovery of the land, cannot be required to pay interest pending the suit, though it was agreed that improvements should be at the risk of the purchaser if the title should be attacked. Wightman v. Reside, 2 Des. (S. C.) 578. A purchaser from one holding under color of title only, must pay interest only from the time his vendor's title was perfected by adverse possession. Baskin v. Houser, 3 Pa. St. 430. 77 Powell v. Matyr, 8 Ves. 146, where it was said by the master of the rolls after laying down the general rule that the purchaser must pay interest from the time of the contract : " It does not follow that the mere circum- 114 1HH) MARKETABLE TITLE TO REAL ESTATE. Ill such a case the purchaser takes the rents and profits in satisfac- tion of the interest he might have realized from the investment of his money. To charge him with the rents and profits would be in effect to make him pay interest when losing the interest on his own money. Hence, he cannot be compelled to pay rent pending the vendor's efforts to perfect the title. 78 In accordance with the fore- going principles, it has been held that if the vendor be unable to convey a good title when demanded by the purchaser on payment of the purchase money, and the latter be afterwards required to take a perfected title, the vendor must pay to him interest on the purchase money received. 79 But this principle has, of course, no application to cases in which the payment of the purchase money and the execution of a conveyance is deferred until some future day, unless, upon the maturity of the purchaser's obligations for the purchase money, the vendor be unable to convey and the pur- chaser be obliged to keep the money idle awaiting the tender of a perfected title. 80 stance that the vendor was not ready to complete the title at the day will vary the rule. The purchaser must state something more than mere delay, viz., that he has not had the benefit of his money, and I think it reasonable to add the other term that has been mentioned, that in some way it shall be intimated to the vendor that the purchaser has placed himself in that situation, his money unproductive and to wait the event, otherwise there is no equality. The one knows that tlu 1 estate produces rent, the other does not know that the money doen not produce interest. Wherever, therefor?, the purchaser is delayed as to the- title and means to insist upon this, he ought to apprise the other party that he is making no interest." See, alao, Rut- ledge v. Smith, 1 McCord Ch. (S. C.) 403; Brockenbrough v. Blythe, 3 Leigh (Va.), 610. * 1 Sugd. Vend. (8th Am. ed.) 12 (8). Dowson v. Solomon, 1 Drew. A S. 1; Aukeny v. Clark, 148 U. S. 345; Bangs v. Barrett, (R. I.) 18 All. Rep. 250. "Pierce v. Nichols, 1 Paige (N. Y.), 244. " Hunter v. Bales, 24 Ind. 303. CHAPTER XXXIII. OF THE RIGHT OF THE VENDOR TO REQUIRE THE PURCHASER TO TAKE THE TITLE WITH COMPENSATION FOR DEFECTS. GENERAL RULE. 325. EXCEPTIONS. 326. INDEMNITY AGAINST FUTURE LOSS. 327. 325. GENERAL RULE. The vendor, under some circum- stances, may require the purchaser to take the property, with com- pensation for failure of the title as to a portion of the premises not material to the due enjoyment of the remainder, or with com- pensation for inconsiderable liens, charges or incumbrances. 1 This M Sugd. Vend. (8th Am. ed.) 572 (312) ; Adams Eq. 210; Bisph. Eq. (3d ed.) 445; Fry Sp. Perf. (3d Am. ed.) 1178, et seq.; 2 Kent Com. (llth ed.) 475; 1 Story Eq. 779; Hepburn v. Auld, 5 Cranch (U. S.), 262; Pratt v. Campbell, 9 Cranch (U. S.), 494; Cheesman v. Thorn, 1 Ed\v. Ch. (N. Y.) 629; Meyers v. Ringler, 54 N. Y. Supp. 280, 34 App. Div. 415; Ten Broeck v. Livingston, 1 Johns. Ch. (N. Y. ) 357, where the incumbrance was a quit rent of fifty-four cents a year, of which the purchaser had notice. Hadlock v. Williams, 10 Vt. 57-0; Foley v. Crow, 37 Md. 51; Keating v. Price, 58 Md. 52; Stoddart v. Smith, 5 Binney (Pa.), 355; Anderson v. Snyder, 21 W. Va. 632; Creigh v. Boggs, 19 W. Va. 240; Mech. Bank v. Cleland (Ky.) 67 S. W. 386; Kemper v. Walker, 17 Ky. Law R. 1100, 32 S. W. 1093; Florence Oil Co. v. McCandless, 26 Colo. 534, 58 Pac. 1084; Rollyson v. Bourn, (W. Va.) 100 S. E. 682; Phinizy v. Guernsey, 111 Ga. 346, 36 S. E. 7-96, 50 L. R. A. 680, 78 Am. St. Rep. 207. The following instances in which specific performance with compensation for defects was decreed in favor of the vendor, have been mentioned by Mr. Fry (Sp. Perf. [3d Am. ed.] 1194) : "Where an estate of about 186 acres was described as freehold, and, in fact, about two acres, part of a park, were held only from year to year. Calcraft v. Roebuck, 1 Ves. Jr. 221. Where there was an objection to the title of six acres out of a large estate, and those acres do not appear to have been material to the enjoyment of the rest. McQueen v. Farquhar, 11 Ve^. 467." The same rule applies, of course, where the title to the entire premises is good, but there is a small deficiency in the number of acres called for by the contract. King v. Wilson, 6 Beav. 124. Or where a small portion of the property is not of the kind or quality specified in the agreement of sale. Scott v. Hanson, 1 Russ. & Myl. 128. Or where a term for years is slightly shorter than that which the vendor pur- ported to sell. 1 Sugd. Vend. (8th Am. ed.) 457 (299). The purchaser cannot be required to take the premises if they are subject to a ground rent, though compensation be offered, the ground rent being an incum- brance incapable or removal without the consent of the incumbrancer. [907] 908 MARKETABLE TITLE TO REAL ESTATE. rule has been carried so far that a fraudulent misrepresentation as to the title of a small portion of the land, not constituting: a prin- cipal inducement to the purchaser, and not indispensable to the intended purposes of the whole, has been held no ground for re- scinding the contract. 2 This rule has also been applied where the purchaser sought to rescind an executed contract. Thus, where by mistake the grantor included in a conveyance of 1,269 acres, 80 acres to which he had no title, it was held that the grantee was en- titled to compensation for the deficiency, but not to a rescission of the contract, the eighty acres not being indispensable to the due enjoyment of the rest, and not having formed a special inducement to the purchaser. 3 A condition of sale that if any mistake or omission should be discovered in the description of the property compensation must be accepted, does not apply to a defect of title to a part material to the enjoyment of the rest. 4 " If that part to which the seller has a title was the purchaser's principal object, or equally his object with the part to which a title cannot be made, and is itself an independent subject and not likely to be injured by the other part, equity will compel the purchaser to take it at a proportionate price," and an inquiry will be directed as to whether the part to which a title cannot be made is material to the possession and enjoyment of the rest of the estate. 5 Where the purchaser entered into the contract with knowledge that there was a trifling incumbrance on the property, namely, a reservation of a yearly rental of one pound of wheat, specific performance by the purchaser was decreed without compensation.' As a general rule, an acknowledged and undisputed charge or Cans v. Ronshaw. 2 Barr (Pa.), 34, 44 Am. Dec. 152. The existence of a highway on the land at best only entitled the purchaser to a reduction of the purchase money by the amount that such highway reduces the value of the tract. Beach v. Hudson R. Land Co., 65 N. J. Eq. 426. 50 Atl. 157. 'Coffee v. Newson, 2 G. 442. But see, post, this chapter, Exception 6, I 326. * Key v. Jennings, 66 Mo. 356. 4 1 Hugd. Vend. 478. * 1 Sugd. Vend. (8th Am. ed.) 477. Winne v. Reynolds, 8 Paige (N. Y.), 407. RIGHT OF THE VENDOR COMPENSATION FOR DEFECTS. 909 incumbrance of a pecuniary nature upon the premises is no valid objection to specific performance, since the purchase money may be applied to the discharge of the incumbrance, either under the direc- tion of the court or by the purchaser himself, who thereupon is sub- rogated to the right of the incumbrancer. 7 But specific perform- ance by the purchaser cannot be compelled if the incumbrance exceed the unpaid purchase money, 8 unless, of course, the pur- chaser assumed the payment of the incumbrance as part of the consideration of the contract. Of course if the contract stipulates that there shall be a deduc- tion from the purchase money if the title to a part of the premises should fail, the purchaser cannot, in the absence of fraud, imposi- tion or gross mistake, upon failure of title to part of the premises, demand a rescission of the contract as to the other part. 9 The pur- chaser cannot refuse to complete the contract because, before the execution of a conveyance, a part of the premises had been taken in condemnation proceedings. He becomes in equity the owner of the land as soon as the contract of sale is made, and entitled to compensation from those at whose instance the land was con- demned. 10 A partial restriction upon the purchaser's power of alienation, such as a pre-emption right of purchase in the original owner for a specified time, or a fine in case of alienation, does not justify the purchaser in refusing specific performance, but dimin- ishes the value of the property, and entitles him to a compensa- tion. 11 If the purchaser has waived his right to rescind the con- tract where the title is defective, he cannot refuse to pay the pur- chase money, with compensation or abatement as to that portion of the premises to which the vendor has no title. 12 He will be deemed to have waived that right if he purchased with knowledge that the title to a portion of the premises was defective. 13 T Ante, 245, 305. The existence of a water tax on the premises is no ground for rescission. The purchaser must take the title with an abatement of the purchase money. Cogswell v. Boehm, 5 N. Y. Supp. 67. 8 Hinckley v. Smith, 51 N. Y. 21. "Harris v. Granger, 4 B. Mon. (Ky.) 369. 10 Kuhn v. Freeman, 15 Kans. 423. "Winne v. Reynolds, 6 Paige (N. Y.), 407. M Hancock v. Bramlett, 85 N. C. 393. >c Kimmel v. Scott, (Neb.) 52 N. W. Rep. 371. 910 MARKETABLE TITLE To HEAL ESTATE. In the English practice the conditions of sale usually provide that any description, mistake or error in the particulars, shall not avoid the sale, but shall be the subject of compensation ; and the conditions usually fix the mode in which the amount of compensa- tion shall be determined. A condition that no compensation shall be allowed the purchaser for defects, applies only to trivial errors. 14 We have seen that when a purchaser elects to complete the con- tract with compensation for a part to which title cannot be ob- tained, compensation is to be decreed according to the relative and not the average value of the part lost. 15 .No reason is perceived why the same rule should not apply when he is required to com- plete the contract with compensation. Where, however, the vendor sold 2,000 acres and included in his conveyance 39 acres to which he hud no title and which was not included within the boundaries of the premises sold, it was held that the purchase money must be abated according to the contract price per acre, and not according to the relative value of the thirty-nine acres. 16 Where the right of the vendor to require the purchaser to take the title with compensation for defects, exists, it cannot be enforced in an action to recover the purchase money, or for a breach of the contract, or in any other proceeding at law. At law the contract is an entirety and can only be enforced as such. The remedy of the vendor is exclusively in equity. 17 Objections to the title which, if well founded, could result only "Dart Vend. A P. (5th ed.) 134. Whittemore v. Whittemore, L. R., 8 Eq. 003. The cases in which the common condition of sale requiring the pur- chaser to take the property with compensation for defects do not apply have been thus classified by Mr. Dart (V. & P. f 5th ed.] 138) : 1. Where the prop- erty is not of the same description as it appears to he in the particulars of sale. 2. Where the property, as described, is not identical with that intended to be sold. 3. Where a material part of the property described has no exist- ence, or cannot be found; or where no title can be shown to it. 4. Where the misdescription is upon a point material to the due enjoyment of the property. 5. Where the misdescription an to quantity is so serious that il is no longer a fit subject for compensation. 6. Where the mindescription in of such a nature that the amount of the compensation cannot be estimated. "Ante. I 170. " Stockton v. Union Oil Co., 4 W. Va. 73. n l Sugd. Vend. (8th Am. ed.) 417 (314). Shaw v. Vincent, 64 N. C. 000. EIGHT OF THE VENDOR COMPENSATION FOE DEFECTS. 911 in a trifling loss to the purchaser will be disregarded on the prin- ciple de minimis lex non curat. 18 326. EXCEPTIONS TO THE RULE. (1) The rule that the purchaser may be compelled to accept the title with compensation, applies only where the title is good as to part, and bad as to part. If the objection go to the whole title, he can in -no case be required to accept the property with indemnity against eviction. 19 (2) The contract cannot be specifically enforced in part and rescinded in part. It must either be rescinded in whole, or specific performance decreed with compensation for an inconsiderable part to which the title fails. 20 This exception does not apply where the purchase is of several lots at auction, and the titles to some are bad. 21 The purchaser must take a conveyance of those to which 18 Huber v. Johnson, 174 Ky. 697, 192 S. W. 821, in which case the loss would have been about $25. 19 1 Sugd. Vend. ( 8th Am. ed. ) 573. Balmanno v. Lumley, 1 Ves. & Bea. 224 ; Paton v. Brebner, 1 Bligh, 42 ; Nouaille v. Flight, 7 Beav. 521 ; Blake V. Phinn, 3 C. B. 976. 20 Bailey v. James, 11 Grat. (Va.) 468, 62 Am. Dec. 659; Jopling v. Dooley, 1 Yerg. (Tenn.) 289, 24 Am. Dec. 450; Reed v. Noe, 9 Yerg. (Tenn.) 283; Galloway v. Bradshaw, 5 Sneed (Tenn.), 70; McKinney v. Watts, 3 A. K. Marsh. (Ky.) 268; Bryan v. Read, 1 Dev. & B. Eq. (N. C.) 78; Wilson V. Brumfield, 8 Bl. ( Ind. ) 146 ; Johnson v. Houghton, 19 Ind. 359 ; Rector v. Price, 1 Mo. 373; Christian v. Stanley, 23 Ga. 26; York v. Gregg, 9 Tex. 85; Ankeny v. Clark, 138 U. S. 345. 11 Van Epps v. Schenectady, 12 Johns. (N. Y.) 436; Poole v. Shergold, 2 Bro. C. C. 118; Stoddard v. Smith, 5 Binney (Pa.), 355; Foley v. Crow, 37 Md. 51; Waters v. Travis, 9 Johns. (1ST. Y.) 450. If the title fail to one of two purchased lots, both of which were necessary to the purchaser's uses, he cannot be compelled to take the other lot. Shriver v. Shriver, 86 N. Y. 575. In Osborne v. Breman, 1 Des. (S. C.) 485, several lots adjoining each other were sold separately at auction. Title to one of the principal lots failed, but there being no evidence that this lot was the principal inducement to the purchase, the purchaser was compelled to complete the contract. If two distinct portions of land are sold as one tract, a good title to both must be shown in order to sustain an action against the purchaser for refusing to complete the contract. Barton v. Bouvien, 1 Phila. (Pa.) 523. When a tract of land, divided into city lots, is sold in separate parcels, a defect in the title to one lot or parcel does not affect the sale of the other parcels, but a defect in the title to any one of several lots sold as one parcel, avoids the sale of the entire parcel. Mott v. Mott, 68 N. Y. 246. A clause in a contract for the sale of lots abutting on a street shown on a map of a subdivision, provided that if title failed to any of the lots the contract should be deemed 912 MARKETABLE TITLE TO REAL ESTATE. the title is good, unless the lots to which the title is bad are neces- sary to the enjoyment of the rest. 22 If a person purchases at an auction several distinct though adjacent parcels of land, separately described in the advertisement of sale and separately sold, signing a separate memorandum of the purchase of each which contains the terms of the sale, the purchase of each parcel constitutes a dis- tinct contract, and the inability of the vendor to make title or per- form the contract as to one of the parcels will not relieve the pur- chaser from his obligation to pay the purchase price and accept a conveyance of the other parcels. 28 (3) The purchaser cannot be required to complete the contract with compensation or abatement of the purchase money if the title has failed to a considerable portion of the property, 24 or to a part which is indispensable to the due enjoyment and intended purposes of the residua 25 But a failure of title to an inconsiderable or dis- severable, and the compensation should abate pro tanto. Held, not applicable to a defect consisting in the want of dedication of the street to public uses. Cleveland v. Bergen B. 4 I. Co., (N. J. Eq.) 55 Atl. 117. "1 Sugd. Vend. (8th Am. ed.) 484. Emerson v. Hiles, 2 Taunt. 38; James v. Shore, 1 Star. 426; Baldry v. Parker, 2 B. & C. 37; Roots v. Dormer, 4 B. A Ad. 77; Seaton v. Booth, 4 Ad. & El. 528. Compare Gosman v. Pfistner, 80 N. J. Eq. 432, 83 Atl. 781. n Wells v. Day, 124 Mass. 38. So held where the sale was private and the contract provided that failure of the title to one of the parcels should not work a forfeiture as to the other parcels. Sage L. & I. Co. v. McGowan, 30 Cal. App. 120, 157 Pac. 244. 14 1 Sugd. Vend. (8th Am. ed.) 479; Fry Sp. Perf. (3d Am. ed.) 1182; 2 Kent Com. 475; Boyce v. Grundy, 3 Pet. (U. S.) 210; Hayes v. Skidmore, 27 Ohio St. 331; Groves v. Stouder, 58 Okl. 744, 161 Pac. 239; Burwell v. Sollock, (Tex. Civ. App.) 32 S. W. Rep. 844; Newman v. Maclin, 5 Hayw. (Tenn.) 241; Reed v. Noe, 9 Yerg. (Tenn.) 282, where the title to twenty- five acres out of fifty was defective. Cunningham v. Sharp, 11 Humph. (Tenn.) 116; Terrell v. Farrar, 1 Miss. 417, where title to only half of the property purchased could be had. In Morgan v. Brnst, 34 W. Va. 332, 12 S. E. Rep. 710, the purchaser was compelled to accept title with compensa- tion for a deficiency of 20 acrea out of 254, average value. The purchaser cannot be required to take the title where the vendor had previously sold the mineral rights in the land to another. Eversolc v. Everaole, 27 Ky. Law Rep. 385, 85 S. W. Rep. 186; Davis v. Watson, 89 Mo. App. 15. "Authorities cited. Ante, f 325, n. 1. Parham v. Randolph, 5 Miss. 435, 35 Am. Dec. 403; Jackson v. Ligon, 3 Leigh (Va.), 161. where the part to which title failed was separated from the re*t by a public road. A familiar illustration of thin exception in the caw in which a wharfinger bought a EIGHT OF THE VENDOR COMPENSATION FOR DEFECTS. 913 pensable portion of the property, 26 or the existence of a trifling charge or incumbrance upon the premises, 27 or a trifling deficiency in the quantity of the land to be conveyed, 28 is no ground for refus- ing specific performance with compensation. Compensation can- not be decreed if there be no accurate and certain means of deter- mining the amount of compensation to be allowed, 29 such for ex- wharf and a jetty protecting it, and it afterwards appeared that the jetty was liable to be removed by the municipal authorities. It was held that he could not be compelled to take the wharf with compensation for the loss of the jetty. Peers v. Lambert, 7 Beav. 546. So, also, in Keating v. Price, 58 51d. 532, where a purchase of twenty acres was made in order to get pos- session of an acre and a half at a particular point as a factory site. Title to the acre and a' half having failed, the purchaser was not required to accept the remainder with compensation. Where the vendor of a house and lot was unable to make title to a small strip of land between the house and the highway, from which passers-by could look in at the window, it was held that the purchaser could not be compelled to accept the residue with com- pensation. 1 Sugd. Vend. 478. Perkins v. Ede, 16 Beav. 193. 2 'Tomlinson v. Savage, 6 Ired. Eq. (N. C.) 430, where a deficiency of 17% out of 350 acres was deemed immaterial. Reynolds v. Vance, 4 Bibb (Ky. ), 213; Buck v. McCaughtry, 5 T. B. Mon. (Ky.) 216, deficiency of 50 acres out of 800 deemed immaterial. 27 Fry Sp. Perf. (3d Am. ed.) & 1188, 1196. In Guynet v. Mantel, 4 Duer (X. Y. ), 86, the purchase price of the property was $50,000, and the purchaser took possession with notice that there was an outstanding incumbrance on the property of $1,000. Specific performance by the vendor, with compensation or allowance for the incumbrance, was decreed. A deficiency of twenty-one acres of land in a tract of 400 acres, not material to the enjoyment of the rest, may be compensated, and affords no ground for rescission. Cotes v. Raleigh, 1 T. B. Mon. (Ky.) 164. A small and trifling charge on the land for the main- tenance of a division fence, being the subject of compensation, is no ground for resisting specific performance. Keating v. Gunther, 10 N. Y. Supp. (1ST. Y.) 734. 28 Keepers v. Yocum, 84 Kan. 554, 114 Pac. 1063. 29 In Evans v. Kingsberry, 2 Rand. (Va.) 120, 14 Am. Dec. 779, a husband sold an estate in which the wife had a life interest in case she survived him, but in which he had the entire interest in case he survived. The purchaser refused to take the property, and specific performance with compensation was denied, the court saying that the contingency of the wife surviving the hus- band, and in that event becoming entitled to a moiety of the land for her life, was such a defect of title as could not be compensated, since there was no rule by which the compensation could be estimated. But see ante, 199. There is no means of ascertaining the present value of an estate devised to a widow for life but defeasible, except as to dower, upon her re-marriage. Scheu v. Lehning, 31 Hun (N. Y.), 183. 115 914 MARKETABLE TITLE TO REAL ESTATE. ample as in the case of a building restriction binding the purchaser, or a restriction as to {he uses to which the premises shall be put. 30 The encroachment of the walls of a building a couple of inches on the building line of a street has been held no case for compensa- tion, and the purchaser was excused from performing the contract. 31 On the other hand, a deficiency of fourteen inches in a frontage of seventy-five feet was held a case for compensation and not for rescission, the fourteen inches not being indispensable to the due enjoyment and intended use of the premises. 32 Obviously, the question whether the purchaser must take the title with compen- sation, or may rescind the contract, depends upon the circum- stances of each particular case. Specific performance is a matter of grace, and will neither be enforced in one case nor denied in another unless equity and good conscience so require. It is in- cumbent upon the purchaser to show that the part to which title has failed was material to the proper use and enjoyment of the rest, or formed a special inducement to the purchase. 33 (4) The purchaser cannot be compelled to accept an estate of a different tenure from that which he purchased; thus, if he pur- chases a freehold, he cannot be compelled to accept a lesser estate as a copyhold or a leasehold. 34 Where the contract provided that the vendors should begin and prosecute to final judgment a suit to recover possession of a part of the premises, the purchase money to be abated in case of inabil- ity to recover in such suit, and the vendor failed to bring the suit, specific performance with abatement of the purchase money, at the suit of the vendors, was refused. 11 "Adams v. Valentine, 63 Fed. Rep. 1 (X. Y.). n Smithers v. Steiner, 34 N. Y. Supp. 678. See, also, the following encroachment cases, in which the purchaser was excused: McPherson v. Srhade, 28 X. Y. Supp. 659, S Misc. Rep. 424, one and one-half inches; Smith v. McCool, 22 Hun (X. Y.), 505, five inches; Arnstein v. Burroughs. 27 X. Y. Supp. 958, two inches; Bowie v. lirahe. 4 Duer (X. Y.), 676, one and seven-eighths inches. Sec. also. King v. Knapp. 59 X. Y. 462; Stokes v. Johnson, 57 X. Y. 673; \Vehster v. Trust Co., 145 X. Y. 275, 39 X. E. Rep. 904. "Kelly v. Brower, 7 X. Y. Supp. 752. "Keating v. Pri.-e. 58 Mil. 532. 1 Sugd. Y*-nd. (Sth Am. ed.t 41. "\Yold v. Xewgaard, 123 I own, 233, 98 X. \V. Rep. 640. RIGHT OF THE VENDOR COMPENSATION FOR DEFECTS. 915 (5) Where the vendor has only a joint interest or interests in the estate, he cannot compel the purchaser to accept the shares he actually has with a deduction for those he does not own. 36 In some cases, however, the purchaser has been compelled to take a different interest from that which the vendor undertook to sell. 37 If the purchase be from tenants in common and one of them die, the survivors cannot compel the purchaser to accept their shares unless he can procure the share of the deceased tenant. 38 (6) The purchaser cannot be required to take the title with compensation for defects in a case where the vendor has been guilty of fraud in the sale. 39 (7) If the vendor turns the purchaser out of possession, he thereby rescinds the contract and cannot afterwards require a specific performance with compensation for defects. 40 327. INDEMNITY AGAINST FUTURE LOSS. As a general rule a purchaser can neither require nor be compelled to accept a conveyance with indemnity against possible loss in the future from a defect in the title to the estate. 41 An apparent exception to the 38 1 Sugd. Vend. (8th Am. ed.) 4SO (31G). 37 Id. 457 (299). 38 1 Sugd. Vend. (8th Am. ed.) 480; 1 Story Eq. Jur. 7TS. Atty.-Gen. v. Day, 1 Ves. 218. 39 Fry Sp. Perf. (3d Am. ed.) 1192; Harris v. Granger, 4 B. Mon. (Ky.) 369; Isaacs v. Skrainka, 95 Mo. 517, 8 S. W. Rep. 427. But see Coffee v. Xewsom, 2 Ga. 442, a case apparently at variance with the foregoing authorities. 40 1 Sugd. Vend. (8th Am. ed.) 523; Fry Sp. Perf. (3d Am. ed.) 1193; Knatchbull v. Grueber, 1 Ves. Jr. 224. 41 1 Sugd. Vend. (8th Am. ed.) 467, 475; Fry Sp. Perf. (3d Am. ed.) 1190, 1245; Batten Sp. Perf. 67, Law Lib. 171; Balmano v. Lumley, 1 Ves. & Bea. 224; Aylett V. Ashton, 1 Myl. & Cr. 105; Paton v. Brabner, 1 Bligh 42, 66; Ridgway v. Gray, 1 Mac. & G. 109; Powell v. So. Wales R. Co., 1 Jur. (X. S.) 773; Bryan v. Read, 1 Dev. & Bat. Eq. (X. C.) 78, 86; Wilson v. Zajicek, (Tex. Civ. App.) 36 S. W. Rep. 1080; Weaver v. Esary, 78 Wash. 640, 139 Pac. 607; Barickman v. Kuykendall, 6 Bl. (Ind.) 21, where the guardian of a minor, one of several heirs selling an estate, offered the purchaser a bond with security, conditioned that the minor should convey when he came of age. In Rife v. Lybarger, 49 Ohio St. 422, 31 X. E. Rep. 768, in a decree for specific performance against a purchaser, provision was made for his indemnity against an old, uncanceled mortgage. This is an interesting case. The purchaser bought during the fever and excite- ment of a " boom " in city property, but finding a mortgage on the prem- 916 MARKETABLE TITLE TO REAL ESTATE. rule that he cannot demand an indemnity exists in those cases in which he is permitted to detain a part of the purchase money as an indemnity against the possible consummation of an inchoate right of dower in the premises. 42 But it is believed that there is no well- considered case in which the purchaser has been forced to take a defective title with indemnity against possible loss from the defect. Hence, it has been frequently held that a purchaser cannot be com- pelled to accept title with indemnity against an inchoate right of dower in the premises," or against the enforcement of an incum- brance on the property. 44 Of course, if the contract provide for indemnity it may be required. 45 ises refused to complete the purchase. The "boom" subsided, and within four weeks after the contract should have been completed the value of the property shrank nearly one-half. Releases from the personal representatives and heirs of the mortgagee were procured and filed by the vendor, but the purchaser still objected to the title on the ground that the right to enforce the mortgage might be outstanding in an assignee. Specific performance by him was decreed, with indemnity against this possibility. The case seems at variance with the general rule established by the authorities above. In Simpson v. Hawkins, 1 Dana (Ky.), 303, a case in which the contract had been executed by a conveyance with covenants for title, it was held that the grantor might be required to provide an indemnity against the possible re- opening of a decree against a non-resident adverse claimant. "Ante, 199. Young v. Paul, 10 N. J. Eq. 415, 64 Am. Dec. 456. In Jackson v. Edwards, 7 Paige Ch. (N. Y.) 386, a purchaser at a partition sale declined to complete the contract on the ground that the wife of one of the parceners had a contingent right of dower in the premises. But the court held that under the laws of ^"ew York the value of that interest might be ascertained by means of the life tables and commuted at a certain sum to be abated from the purchase money, and invested under the direction of the court for the benefit of the wife. But, obviously, thh is a case in which the purchaser is compelled to take the title with an abatement of the pur- i h:i-r money, and not a mere indemnity. 41 Ante, $ 109. Peters v. Delaplaine, 49 N. Y. 362; Trimmer v. Gorman, 129 N. C. 161, 3 8. E. Rep. 804. See, also, Prescott v. Trueman, 4 Mass. 029, 3 Am. Dec. 249; Shearer v. Ranger, 22 Pick. (Mass.) 447; Smith v. Cornell, 32 Me. 126; Holmes v. Holmes. 12 Barb. (X. Y.) 137; Henderson v. Henderson, 13 Mo. 152. Contra, Obernyce v. Obertz, 17 Ohio, 71; Manson v. Brimfield Mfg. Co., 3 Mason (C. C.), 855; Blair v. Rankin, 11 Miss. 440. 44 Smith v. Browning, 157 N. Y. Supp. 71; 171 App. Div. 278. Aylett v. Ashton, 1 Myl. & Cr. 105; Rulgway v. Gray, 1 Mac. & G. 109; Milligan v. Cooke, 16 Yes. 1; Walker v. Barnes, 3 Mad. 247 (132) ; I'aterson T. Long, 6 Beav. 568} Rosa v. Boards, 8 Ad. & El. 290. RESCISSION BY PROCEEDINGS IN EQUITY WHERE ME CONTRACT HAS BEEN EXECUTED. CHAPTER XXXIV. OF THE REMEDY BY INJUNCTION AGAINST THE COLLECTION OF THE PURCHASE MONEY. GENERAL OBSERVATIONS. 328. FRAUD ON THE PART OF THE GRANTOR. 329. WANT OF OPPORTUNITY TO DEFEND AT LAW. 330. INSOLVENCY OR NON-RESIDENCE OF GRANTOR. 331. WHERE THE ESTATE IS INCUMBERED. 332. FORECLOSURE OF PURCHASE-MONEY MORTGAGE. 333. WHERE THERE ARE NO COVENANTS. 334. TEMPORARY AND PERPETUAL INJUNCTIONS. 335. RESUME. 336. WHERE THERE IS NO PRESENT RIGHT TO RECOVER SUBSTAN- TIAL DAMAGES FOR BREACH OF THE COVENANTS. 337. 328. GENERAL OBSERVATIONS. The jurisdiction of equity to restrain the collection of the purchase money where the title has failed is frequently revoked, either upon the ground that there is no adequate remedy at law, or that the plaintiff has not had or cannot have an opportunity to avail himself of that remedy. The pur- chaser may have been deprived of his defense at law by fraud, accident or mistake ; or the facts constituting his defense may not have transpired until after judgment was recovered against him; as where he was evicted after judgment for the purchase money. Or he may have had, for other reasons, no opportunity of making a defense at law ; as where the vendor seeks to foreclose a deed of trust or other security for the purchase money, in the enforcement of which no legal proceedings are required. 1 So far as the cove- nants of warranty, or for quiet enjoyment are concerned, there can be no doubt of the adequacy of the remedy at law as soon as a right of action upon them occurs. In contemplation of law no wrong- arises out of a mere failure of the title without an eviction or dis- turbance of the possession where these are the only covenants 1 As to the remedy by injunction, where the contract is executory, see ante, 520. [917] 918 MARKETABLE TITLE TO BEAL ESTATE. taken; consequently there being no wrong there is no remedy. After a breach of these covenants has occurred, the remedy is ample and complete. But with respect to the covenants of seisin and against incunibranees a different view may prevail; for while the right of action upon them is complete as soon as they are made, if the title be outstanding in a stranger or the estate be encum- bered, unless he has been evicted in the one case or has discharged the incumbrance in the other, he has, according to the rule gener- ally prevailing in the United States, no right to recover substantial damages for the breach, and, consequently, nothing to offer in defense of an action for the purchase money. In that respect, therefore, the remedy at law upon those covenants, while existing, would seem inadequate; 2 and the covenantee has in some cases been permitted to enjoin the collection of the purchase money until There are dicta in several cases which would tend to establish a different principle from that stated here, namely, that the remedy at law upon the covenant of seisin is complete and adequate immediately upon the execution of the conveyance and covenant if the vendor have no title, because there is then a breach of that covenant for which the covenantee may recover dam- ages; and that the remedy at law upon the covenant of warranty is incom- plete and inadequate because there can be no recovery of damages until an eviction occurs. Ingram v. Morgan, 4 Humph. (Tenn.) 66, 40 Am. Dec. 626: Baird v. Goodrich, 5 Heisk. (Tenn.) 20; Leird v. Abernethy, 10 Ileiak. (Tenn.) 636; Koger v. Kane. 5 Leigh (Va.), 606, 608. It is submitted with diffidence that these cases are open to criticism in two particulars: First, in assuming that substantial damages for a breach of the covenant of seisin may be recovered where there has been no eviction or disturbance of the possession. This is directly opposed to the weight of American authority. Rawle Covts. for Title (5th ed.), ch. 9. And, second, in declaring that the remedy at law on the covenant of warranty is incomplete because no damages can be recovered until eviction. In contemplation of law, ao far as this covenant is concerned, want of title in the grantor constitutes no injury to the covenantee unless it results in an eviction; and until eviction, there being no wrong at law, there is no remedy. To say then that the remedy at law before eviction is inadequate is to produce the illogical result, that the remedy at law is inadequate in a case in which there is neither wrong nor vetuedy. It is true that in such a case there may be room for the " quia ti\ct" jurisdiction of equity, but this is founded upon the possibility of an injury to the complainant in the future and not upon a present wrong which requires compensation or redress. 2 Story Eq. (13th ed.) fi 826. The fore- going observations, so far as they relate to the covenant of seisin, appear to be in accord with the opinion of Air. iUiwle (Lovta. for Title [5th ed.], | 378). KEMEDY BY INJUNCTION COLLECTION OF PURCHASE MONEY. 919 the defendant should remove an incumbrance from the land ; 3 and, in others, upon a complete and undoubted failure of the title and insolvency of the vendor, has been held entitled to a perpetual injunction, upon condition that he reconvey the premises to the grantor. 4 The right of the covenantor to an injunction against proceed- ings to collect the purchase money may be conveniently considered with respect to the following circumstances: 1. Where the covenantor made fraudulent representations re- specting the title. 2. Where there is a present right to recover substantial damages for breach of the covenants for title, and there has been no oppor- tunity to defend at law. 3. Where there has been no such breach of the covenants for title as to give a present right to recover substantial damages at law, but suit is being actually prosecuted or threatened by an adverse claimant or incumbrancer, and the covenantor is either insolvent or a non-resident. 4. Where there is no present right to recover substantial dam- ages on the covenants, but there is a clear outstanding title in a stranger. 329. FRAUD ON THE PART OF THE GRANTOR. 1. Where the covenantor was guilty of fraud with, respect to the title. Actual fraud by the vendor in a contract for the sale of lands, unless waived by the vendee, seems to be at all times ground for enjoining the collection of the purchase money, whether there has or has not been a breach of the covenants for title. 5 Indeed, where there is such fraud an injunction will be granted, though there are no covenants for title. 6 The same rule applies in a case of mistake Post, 332. 4 Jackson v. Norton, 6 Cal. 187, 5 Ca*. 262. This is the rule in Virginia, except that no reconveyance of the premises is required and no importance seems to have been given to the solvency of the covenantor as respects the right to the injunction. Post, 337. 6 High on Injunctions (3d ed.), 289; Rawle Covts. (5th ed.) 372; Fitch v. Polke, 7 Bl. (Ind.) 565; Eeed v. Tioga Mfg. Co., 66 Ind. 21. * In Houston v. Henley, 2 Del. Ch. 248, the purchaser, through the fraudu- lent representations of the vendor, had accepted a conveyance without cove- nants for title, and was permitted to enjoin proceedings to collect the pur- chase money, until the vendor should perfect the title. 920 MARKETABLE TITLE TO REAL ESTATE. as to the premises sold and conveyed. 7 And inasmuch &$ a court of equity is always open for the abrogation and rescission of a contract procured by fraud, it would seem that the collection of the purchase money in such case might be enjoined, whether the facts alleged would or would not avail, or have availed, the cove- nantee at law, as a defense to an action for the purchase money. It has been held, however, that fraud is no ground for an injunc- tion to stay an action on an obligation for the purchase money not under seal, since the fraud may be set up in defense of an action, and the remedy at law in that respect is complete. 8 If this be true no reason is perceived why the same rule would not apply in those States in which the defendant is permitted to set up equitable defenses in an action on a sealed instrument. But these decisions do not appear to have been generally followed in the American States. The fact that the purchaser has a remedy at law by action to recover damages caused by the vendor's deceit, has been held no ground for refusing an injunction to stay the collection of the purchase money. 9 If the purchaser sets up fraud as a defense in an action for the purchase money and fails, he cannot afterwards avail himself of the same matter in equity by way of injunction against the judgment so obtained. 10 T Spurr v. Benedict, 99 Mass. 463, where the conveyance (quit claim) did not include lands which were pointed out to the buyer as belonging to the vendor, but to which he had no title, and which were not included in the conveyance. * Barkham-stead v. Case, 5 Conn. 528, 13 Am. Dec. 92; Moore v. Ellsworth, 3 Conn. 403. Ransom v. Shuler, 8 Ired. Eq. (X. C.) 307, the court saying: "Admitting that he might recover damages in an action at law for the deceit, yet that would not impair his right to equitable relief, since that and the legal remedy are not of the same nature, but the latter may be, and generally ia, that the vendor cannot, with a good conscience, coerce the payment of the whole pur- chase money, and leave the vendee to pursue a personal action at law for the uncertain damages which a jury might assess for the fraud in selling what did not belong to the vendor: but, on the contrary, the vendee has the right of withholding so much of the purchase money (because to that extent the consideration ha* failed) as a security in his own hands against the loss impending over him." Compare dictum in Hammatt v. Emerson, 27 Me. 300. "Johnson v. Jones, 13 Sin. & M. (Mm.) 580; Thomas v. Phillips, 4 8m. L M. (Miss.) 368. Cf. Allen v. Hopson, 1 Freeni. Ch. (Miss.) 276. KEHEDY BY INJUNCTION COLLECTION OF PURCHASE MONEY. 921 330. WANT OF OPPORTUNITY TO DEFEND AT LAW. 2. Where there is a present right to recover substantial damages for breach of the covenants for title, and there has been no oppor- tunity to defend at law. If the application for an injunction be made before judgment and the bill shows facts which may be availed of as a defense to the action by way of recoupment, coun- terclaim or set-off, there is no ground for the interposition oi" equity, and the injunction should be denied. 11 So, also, if the application be made after judgment, and the facts presented would have been a complete defense at law. 12 But if by fraud, accident or mistake the covenantee has been deprived of his opportunity to defend at law, or if no such opportunity existed or exists, as where the right to damages arose after the judgment had been recovered, "Hopper v. Lutkin, 3 Gr. Ch. (N. J.) 149. In Tone v. Brace, Clarke Ch. (N". Y. ) 291, the action was to recover rent for the year 1839 on a lease ter- minating in 1842. The lessee prayed an injunction on the ground that he had been evicted in January, 1840, and asking to have his damages set off against the rent. The injunction was dissolved on the ground that the remedy on the covenants in the lease was complete. "Xelms v. Prewitt, 37 Ala. 389; Wray v. Furniss, 27 AUu 471; Shipp v. Wheless, 33 Miss. 647. The contract was executory in this case, but the prin- ciple remains the same. Ricker v. Pratt, 48 Ind. 73. Allen v. Thornton, 51 Ga. 594; Desvergers v. Willis, 58 Ga. 388, 21 Am. Rep. 289; Kibler v. Cure- ton, Rich. Eq. Cas. (S. C.) 143. In Woodruff v. Bunce, 9 Paige Ch. (N. Y.) 443, 38 A in. Dec. 559, it seems to have been assumed that if the covenantee had been evicted and the covenantor is insolvent, the former will at any time be awarded an injunction to stay the collection of the purchase money. This is true if the eviction occurred after judgment, and that, too, whether the vendor was or was not insolvent. If, however, the eviction occurred before judgment, and the covenantee might have set up that defense by way of re- coupment or counterclaim, but neglected to do so, there might be a grave doubt as to his right to involve the covenantor in the expense of a chancery suit, notwithstanding the insolvency of the latter. And especially would the right to an injunction against an assignee of the covenantor seem doubtful under these circumstances. Indeed, the insolvency of the covenantor seems immaterial to the question of the right to an injunction to stay the collection of the purchase money, except in those cases in which no present right of action on the covenant of warranty exists, and- the complainant is invoking the " quia timet " jurisdiction of equity. If the covenantee should be evicted from the premises after the recovery of a judgment against himself for the purchase money, he may enjoin the judgment if the covenantor or his estate is insolvent and the defense of failure of title could not have been made in the action for the purchase money. Wray v. Furniss, 27 Ala. 471. 116 922 MAItKETABLE TITLE To KKAL ESTATE. or where the covenantor seeks to enforce a security for the pur- chase money, without legal proceedings, then, and in all such cases, the covenantee may be enjoined from any further proceeding, either to collect his judgment or to enforce such security." So, also, where at the time of the judgment the covenantee was ig- norant of the facts which would have constituted a defense to the action." It may be observed generally, however, that an injunc- tion to stay the collection of the purchase money, whether before or after judgment, will not be granted unless the complainant shows that for some reason his legal remedy on the covenants for title will be unavailing. 15 331. INSOLVENCY OR NON-RESIDENCE OF THE GRANTOR. 3. ]Yhere there has been no such breach of the covenants for title as to give a present right to recover substantial damages at law, but suit is being actually prosecuted or threatened by an adverse claimant or incumbrancer, and the covenantor is either insolvent or a non-resident. Strictly speaking, it cannot be said that there is no remedy at law on the covenants for title in these cases, for in contemplation of law nothing has occurred of which the covenantee can complain as respects the covenants of warranty and for quiet enjoyment; nor can there be any ground for complaint at law until an eviction occurs. 16 But the covenantor being insolvent or a non-resident, judgment for the covenantee will be worthless when the right of action at law shall have accrued. Hence arises the jurisdiction in equity for a bill of injunction " quia timet," that is, "because he fears some future probable injury to his rights or interests, and not because an injury has already occurred which "Kingsbury v. Milner, 69 Ala. 502: Luokett v. Triplett, 2 B. Mon. (Ky.) 39; Coster v. Monroe Mfg. Co., 1 Or. Ch. (N. J.) 476. "Fitch v. Polke, 7 Bl. (Ind.) 665, the court saying: "We are satisfied that this is a proper case for the interference of a court of equity. It ap- pear* that the complainant \vns deceived by the false representations of the vendor as to his title, and that he remained ignorant of the fact that the vendor had not a good tit'< until after the rendition of the judgment nt law. This excuse for not defending at law was sufficient to authorize the inter- ference of a court of equity." Citing Williams v. Lee, 3 Atk. 223; Simpson v. Hart, 1 Johns. Ch. (N. V.) 98. "Haggin v. Oliver, 5 J. J. M. (Ky.) 237. 'Ante, | 144. REMEDY BY INJUNCTION COLLECTION OF PURCHASE MONEY. 923 requires any compensation or other relief." 17 Accordingly in many cases, injunctions .against proceedings to collect the pur- chase money have been granted upon allegations of the actual pendency 18 or threatened prosecution 19 of a suit by an adverse claimant against the covenantee, and that the covenantor, because of insolvency 20 or non-residence, 21 cannot be compelled to respond 17 2 Story Eq. (13th ed.) 826. 18 High on Injunctions (3d ed.), 400; Eawle Covts. (5th ed.) 372, 375. The earliest case in which this doctrine, or at least a part of it, was applied was that of Johnson v. Gere, 2 Johns. Ch. (N. Y.) 546, decided by Chancellor KENT in 1817. The authority of this case has been denied in N"ew York and elsewhere, but it is to be observed that it was neither alleged in the bill nor shown that the covenantor was a non-resident or insolvent, nor that for any other reason, the complainant's remedy upon the covenants, when it should accrue, would be insufficient for his protection. There are many cases which decide that an injunction against proceedings to collect the purchase money will not be granted where the covenantee has not been dis- turbed in his possession by an adverse claimant, but few which refuse the injunction where it was shown that the covenantor was a non-resident or insolvent, and that suit by the adverse claimant was being prosecuted or threatened. Legett v. McCarty, 3 Edw. Ch. (X. Y.)'l26, obiter; Edwards v. Bodine, 26 Wend. (X. Y.) 114, obiter; Shannon v. Marselis, Saxt. (N. J.) 413, 425; Van Riper v. Williams, 1 Green Ch. (N. J.) 407; Van Waggoner v. McEwen, 1 Green Ch. (N. J.) 412; Green v. Whipple, 1 Beas. Ch. (N. J.) 50; Coster v. Monroe Mfg. Co., 1 Green Ch. (X. J.) 467; Jaques v. Esler, 3 Gr. Ch. (N. J.) 462; Hile v. Davison, 5 C. E. Gr. (N. J.) 228; Fehre v. Turner, 77 Ind. 530, overruling Strong v. Downing, 34 Ind. 300. Ia Harding v. Commercial Loan Co., 84 111. 251, 260, obiter. 20 Warvelle on Vendors, 937; Rawle Covts. (5th ed.) 380; Walton v. Bonham, 24 Ala. 513; Wray v. Furniss, 27 Ala. 471. In Magee v. McMillan, 30 Ala. 420, relief was denied on the ground that insolvency of the vendor was not alleged. Heflin v. Phillips, (Ala.) 11 So. Rep. 729; Frank v. Riggs, 93 Ala. 252, 9 So. Rep. 359; Gilham v. Walker, 135 Ala. 459, 33. So. Rep. 537; Whittey v. Lide, 139 Ala. 177, 35 So. Rep. 705; Hoppes v. Cheek, 21 Ark. 585; Busby v. Treadwell, 24 Ark. 458; Brooks v. Moody, 25 Ark. 452; Young v. McCormick, 6 Fla. 368; Allen v. Thornton, 51 Ga. 594; Mathis v. Crowley, 146 Ga. 749, 92 S. E. 213; Fehrle v. Turner, 77 Ind. 530; Wimberg v. Schwegeman, 97 Ind. 530, where it was also held that the insolvency must be averred in the bill. Morrison v. Beckwith, 4 T. B. Mon. (Ky. ) 73, 16 Am. Dec. 136; Vance v. House, 5 B. Mon. (Ky.) 540; Taylor v. Lyons. 2 Dana (Ky.), 276; Rawlins v. Timberlake, 6 T. B. Mon. (Ky.) 225; Simpson v. Hawkins, 3 Dana (Ky.), 303; Vaughn v. Wells, 180 Ky. 484, 203 S. W. 191; Atkinson v. Hager, (Ky.) 121 S. W. 955. It was held that insolvency was no ground for the injunction unless the covenantee filed his bill quia timet, requiring all persons having adverse interests to assert or relinquish the same. Jones v. Waggoner, 7 J. J. Mardi, (Ky) 144; Hatcher v. 924 MAKKETABLE TITLE TO HEAL ESTATE. in damages for a broach of his covenant when it shall have oc- curred. It has been held, however, that the insolvency of the covenantor must be alleged in the bill as ground for the injunc- Andrews, 5 Bush (Ky. ), 6(52; Johnson v. Wilson, 77 Mo. 639. In Jones v. Stanton, 11 Mo. 433, the injunction was granted though the insolvency of the covenantor was doubtful, and though no suit against the covenantee had been prosecuted or threatened. But the injunction was to be dissolved if the vendor -should give a bond with security to indemnify the complainant if he should sustain any loss from the defective title. Mitchell v. McMullen, 59 Mo. 252; Miller v. A very, 2 Barb. Ch. (X. Y.) 582; Woodruff v. Bunce, 9 Paige Ch. (X. Y.) 443, 38 Am. Dec. 659; Young v. Butler, 1 Head (Tenn.), 640; Ingram v. Morgan, 4 Humph. (Tenn.) 66, 40 Am. Dec. 626; Barnett v. Clark, 5 Snced (Tenn.), 436; Baird v. Goodrich, 5 Heisk. (Tenn.) 24; Merri- man v. Xorman, 9 Hei?k. (Tenn.) 270; Leird v. Abernethy. 10 Heisk. (Tenn.) 626; Saint v. Taylor, 12 Heisk. (Tenn.) 488; Land Company v. Hill, 3. Pick. (Tenn.) 589, 11 S. W. Rep. 797; McElya v. Hill, 105 Tenn. 319, 59 S. W. Rep. 1025; Land Co. v. Hill, 87 Tenn. 593, 11 S. W. Rep. 797; Matthews v. Crowder, (Tenn.) 69 S. W. Rep. 779; Stockton v. Cook, 3 Munf. (Va.) 68, 5 Am. Dec. 504. The Virginia practice is, however, much more favorable to the covenantee than the rule stated in the text. See post, 337. In Patton v. Taylor, 7 How. (U. S.) 132, the insolvency of the covenantee was held no ground for an injuncf ion against the collection of the purchase money. Little consideration appears to have been given the question, and the authori- ties cited merely decide that a covenantee who has been disturbed in his possession, cannot resist the payment of the purchase money on the ground that the title is defective. 'Hie grounds upon which the injunction is granted where the vendor is insolvent, were forcibly stated by Judge NICHOLAS in his dissenting opinion in the case of Simpson v. Hawkins, 1 Dana (Ky.), 318, M follows: " It is too late now in this court to question the doctrine, that where a vendee has received a conveyance with warranty, and been let into posses- sion he may nevertheless enjoin the collection of the purchase money, when the vendor becomes insolvent, and it turns out that he has no title, or that his title is defective. That doctrine has been incidentally and directly recognized in too many cases to be now shaken, even if it were originally wrong. But it is right in itself, and clearly deducible from the general principle that sustains every injunction '/'/ tlmct. ... It is said (quoting from the opinion of Judge VXDKBWOOD), 'no judge can repose with confidence and rest his opinion upon the events of futurity. Events that have transpired and not those to come, are, in general, the sole and exclusive subjects for the judiciary to act upon.' Admitting all this, still its direct application is not perceived. In granting the purchaser relief the chancellor arts upon no undivulged or untranspired event. He restrains the collection of the purchase money Itecause of the peril in which the purchaser would otherwise be placed from the want or imperfection of title in the vendor. The want of title and insolvency of the vendor are ascertained facts; the peril to the purchaser thence ensuing is an existing evil which the vendor is bound to remove before he can equitably and conscientiously proceed to the REMEDY BY INJUNCTION COLLECTION OF PURCHASE MONEY. 925 tion. 22 Upon a principle similar to that on which a court of equity enjoins the collection of the purchase money by an insolvent cove- collection of the purchase money. This is not acting upon a state of the case that may arise, but upon one that already exists. It is not a remedy for breach of warranty, or anything equivalent or similar thereto; but an act of " preventive justice " on the part of the court, the full effectuation of which, under a due attention to the interest of both parties, requires a rescission of the contract. It is a mere exception to the general rule that after taking a conveyance the purchaser will not be allowed to rescind for want or defect of title. As to the uncollected purchase money, it places the purchaser in nearly the same attitude as if the conveyance had not been executed. A perpetual injunction, or at least for so long as the pur- chaser is in danger, is what his case requires, and all that it requires. But as it would be unjust for him to withhold the purchase money and continue the enjoyment of the land, in which there is a chance be may never be disturbed, the interest of the vendor requires the court to go a step further, rescind the contract, and make the purchaser restore the title and possession." The majority of the court in this case were of opinion that mere insolvency of the grantor, when no suit against the grantee was being prose- cuted or threatened by the real owner, did not warrant a perpetual injunction to stay the collection of the purchase money. "Clarke v. Cleghorn, 6 Ga. 225; McGhee v. Jones, 10 Ga. 127. In this case there had been no conveyance, but the vendor had executed a bond for title. Vance v. House, 5 B. Mon. (Ky. ) 540; Wiley v. Fitzpatrick, 3 J. J. Marsh. (Ky.) 583; Hatcher v. Andrews, 5 Bush (Ky.), 561. In Cummins v. Boyle, 1 J. J. Marsh. (Ky.) 480, it was held that the removal of one of several covenantors from the State was no ground for an injunction unless it should appear that the remedy against the others would be unavailing. Wofford v. Ashcraft, 47 Miss. 641; Green v. Campbell, 2 Jones Eq. (N. C.) 447. The covenantee will not be driven to seek redress in the courts of another State, when a less circuitous and a better remedy can be given in the courts of his own State. Richardson v. Williams, 3 Jones Eq. (X. C. ) 119. It seems that the injunction will not be granted if the sole ground of the application is the non-residency of the covenantor if he have sufficient property within the State to answer his liability on the covenants. The rule was so qualified in Green v. Campbell, 2 Jones Eq. (N. C.) 446. In Falls v. Dickey, 6 Jones Eq. (X. C.) 253, the bill was adjudged fatally defective in not averring that the non-resident had no property within the State. It must be admitted that the ownership of property within the State constitutes a very doubtful security for damages, the right to recover which may not accrue for many years after the payment of the purchase money has been enforced, or not until the vendor has disposed of that property. In Minne- sota the mere non-residence of the covenantor has keen held insufficient to take a case out of the rule that the covenantee cannot on failure of the title rescind the contract and recover lack the purchase money. Miller v. Miller, 47 Minn. 546, 50 N. W. Rep. 612. ^Hoppes v. Cheek, 21 Ark. 585. If the grantee be constructively evicted by 926 MARKETABLE TITLE TO REAL ESTATE. nantor when the title has failed, it will in a like case restrain him from transferring negotiable securities for the purchase money to an innocent party. 23 It seems that if the title to a portion of the land fail, and that portion be not material or essential to the en- joyment of the rest, there is no ground for an injunction and a rescission of the contract in toto f but the covenantee is entitled to an abatement of the purchase money pro tanto, 2 * or to compensa- tion for the portion lost. 25 The bill must also allege facts showing a clear outstanding title in a stranger, and that suit is being prosecuted or threatened, or that there is imminent danger from the adverse title. Facts which merely show that the title is doubtful, or is not such as the pur- chaser could be required to take upon a bill for specific perform- ance, constitute no ground for an injunction to stay the collection of the purchase money after the purchaser has accepted a convey- ance with covenants of title. 26 It has also been said that mere threats of suit by an adverse claimant will not justify an injunc- tion, and that it must appear that the suit is being actually prose- cuted before relief will be granted, 27 except in cases where the being unable to get possession from an adverse claimant, he may detain the purchase money without alleging non-residence, fraud or insolvency on the part of the grantor. Baird v. Laevison, (Ky.) 15 S. W. Rep. 252. "McDunn v. Des Moines, 34 Iowa, 487. "Simpson v. Hawkins, 1 Dana (Ky.), 303. "Key v. Jennings. 66 Mo. 356. In Withers v. Morell, 3 Edw. Ch. (X. Y.) 500, it was held that in a proceeding to foreclose a purchase-money mortgage, the purchaser could not avail himself of failure of the title to a portion of the land, as a defense, hut must file his bill in equity to enjoin proceedings at law on his bond, if the vendor should seek to hold him for a deficiency. "Latham v. Morgan, 1 Sin. & M. Ch. (Miss.) 611: Simpson v. Hawkins, 3 Dana (Ky. ). 30;?; Woodruff v. Bunce, 9 Paige Ch. (X. Y.) 443; 38 Am. Dec. 55!); I long v. Rathhun, Clarke Ch. (X. Y. ) 12, where it was said that insol- vency was ground for the injunction if the danger of eviction was certain or even imminent. It has been held, ho.vever, that in a suit to enjoin a judgment on the ground of defective title, an answer which merely alleges that the defendant's title is good, without setting out facts showing a good title, Is in-ii!l. i i. -nt. Hover v. Porter, 1 Overt. (Tenn. ) 258; Moredock v. William*. 1 Overt. (Tenn.) 325; ^loore v. Cook, 4 Hayw. (Tenn.) 84. It is not easy to reconcile these cases with those which hold that the burden is on the com- plainant to allege and prove a bad title in the vendor, (irantland v. Wight, 6 Munf. (Va.) 295. "Rawle Covte. (6th ed.) $ 381, citing Worthing on v. Curd, 22 Ark. 284; REMEDY BY INJUNCTION COLLECTION OF PURCHASE MONEY. 927 adverse claimants as well as the vendor and purchaser are before the court, thereby making possible the adjustment of the rights of all parties in the same suit. 28 If the application for injunction be made to restrain proceed- ings at law before judgment, it is usually granted only upon con- dition that the claimant shall confess judgment at law. The ob- ject of this rule is to prevent suits for injunction having no other purpose than to delay proceedings at law. 29 Where the circum- stances of the case are such as to entitle the purchaser to an injunc- tion against proceedings to collect the purchase money, it may be maintained against all who claim under the vendor as well as against the vendor himself, 30 except, of course, the purchaser of a negotiable security before maturity, for value, and without notice of equities between the original parties. The rule that a grantee in undisturbed possession of the prem- ises may enjoin the collection of the purchase money upon a com- plete failure of the title, where the grantor is insolvent, is equi- Wiley v. Fitzpatrick, 3 J. J. Marsh. (Ky.) 583. In the last case it appears, however, that the injunction was granted, the covenantor being practically insolvent and a non-resident, though no suit was being prosecuted by the adverse claimant. 28 Id. (5th ed.) 382. Morrison v. Beckwith, 4 T. B. Mon. (Ky.) 73; 10 Am. Dec. 136; Davis v. Logan, 5 B. Mon. (Ky.) 341. Here the covenantee had been sued in dower by the widow of the covenantor, and he had filed a cross-bill against the heirs and executor of the covenantor asking compensa- tion for breach of warranty. No question as to the right to an injunction, or to detain purchase money was involved. In Denny v. Wickliffe, 1 Met. (Ky.) 216, 226, the contract was executory, but specific performance by conveying to the purchaser having been decreed, he was considered to occupy the posi- tion of a grantee, and it was held that he could only have relief from the defective title, by bringing the adverse claimants before the court. Citing Simpson v. Hawkins, 1 Dana (Ky. ), 303; Taylor v. Lyons, 2 Dana (Ky. ), 279. 28 Anon., 1 Vern. 129; 1 Madd. Ch. 132. Warwick v. Norvell, 1 Leigh (Va.), 96; Nelson v. Owen, 3 Ired. Eq. (N. C. ) 175, which was an injunction against proceedings to collect a land bond, and where it was said that the granting of injunctions was liable to much abuse, as they are usually obtained upon the ex parte statements of the applicant, and often employed to delay the admin- istration of justice; and that to remedy this evil, the complainant must, as a general rule, agree that judgment at law may be entered for the plaintiff. 30 Gunn v. Thornton, 49 Ga. 380, where a judgment creditor of the vendor was seeking to garnishee the purchase money. Fillingin v. Thornton, 49 Ga. 384. 928 MABKETABLE TITLE TO REAL ESTATE. table and just provided the grantee be required to reconvey the premises to the grantor. But it would be obviously inequitable to permit the grantee to keep both the purchase money and the estate, unless the injunction were merely temporary, and it ap- ]>eared that the objection to the title could probably be removed by the grantor. A perpetual injunction against the collection of the purchase money would be in substance a rescission of the con- tract, and it is a cardinal doctrine of equity that a contract will not be rescinded without returning to each party the consideration which passed from him to the other. 332. Where the estate is encumbered. In many cases, injunctions against proceedings to collect the purchase money have been granted where an incumbrance on the premises exists, apparently without regard to the imminency of proceedings to enforce the incumbrance, or the non-residency or insolvency of the covenantor. 31 As to actual or threatened proceedings against the covenantee, there would seem to be grounds for a distinction between defects of title and incumbrances. The former may never be asserted, while the enforcement of securities for the pay- ment of money is almost inevitable. As to non-residence and insolvency of the covenantor, even though the covenantee's case be not strengthened by these conditions, it would unquestionably be a great hardship if he might be compelled to pay money, which in Buel! v. Tate, 7 Bl. (Incl.) 55: Addlrmnn v. Mormon, 7 Bl. (Tnd.1 32, where it was held that a suit to enjoin collection of the purchase money until the covenantee should remove the incumbraiice on the premises vrna in aflirmance of the contract, and that consequently the suit could he maintained without tendering a reconveyance of the land, or offering to account for rents and profits. Arnold v. Carl, IS Ind. 339; Ricker v. Pratt, 4S Ind. 73; Huke v. Jones, 33 W. Ya. 501. obiter. Dayton v. Dusenbury. 25 X. J. Eq. 110, where there were un-.it i-linl judgments binding the premises; I'nion Nat Hank v. Pinner, 25 X. J. Kq. 40.5, tax liens; Stiger v. Bacon, 29 X. J. Eq. 442, prior mortgage; White v. Stretch, 7 C. E. Or. 7fi, sewer assessment; \Yoodruir v. Depue, 14 X. J. Eq. 108, prior mortgage. Henderson v. Brown, 18 Grant Ch. (Can.) 79; Lovelace v. Harrington, 27 Grant Ch. (Can.) 178. In Alabama, the right to enjoin the collection of the purchase money where there has heen a Itreach of the covenant against incumhrances is restricted to eases in which it appears that the covenantee is insolvent. McLemore v. M.il .n. 20 Ala. 127, citing Parks v. Brooks, 16 Ala. 529; Cullum v. Branch Bunk, 4 Ala. 21; 37 Am. Dec. 725. So, also, in Mississippi: Wofford v. Ashcraft, 47 Mi--. 641. BEMEDY BY INJUNCTION COLLECTION OF PURCHASE MONEY. 929 all probability he would in a short time 'be entitled to recover back as damages. If the covenantee pay money to remove incumbrances on the land, he may enjoin the collection of the purchase money to that extent, 32 provided he has had no opportunity to set up that defense at law, but he will be allowed only the amount actually paid by him to remove the incumbrance. He cannot buy in incumbrances and set up an adverse title under them against his vendor. 33 But while an outstanding mortgage or other incumbrance is ground for an injunction against the collection of the purchase money where the purchaser holds under a conveyance with a covenant against incumbrances, it is no ground for a rescission of the contract. The injunction will be dissolved if the vendor removes the incumbrance, or reduces it to a sum not exceeding the unpaid purchase money. The purchaser cannot tender a recon- veyance and deprive the vendor of the right to perfect the title. 31 Neither is delay in removing the incumbrance ground for rescind- ing the contract, where the grantee has never been "disturbed in his possession, and the enforcement of the incumbrance is barred by the Statute of Limitations. 35 333. Foreclosure of purchase-money mortgage. We have already seen that want of title in the vendor is no ground for resisting the enforcement of a purchase-money mortgage or other security, when no personal judgment against the purchaser for a deficiency is sought. In such a case an injunction, as a general rule, will not be granted to restrain a foreclosure of the mortgage. 36 ^Champlin v. Dotson, 13 Sm. & M. (Miss.) 553; 53 Am. Dec. 102. Detroit R. Co. v. Griggs, 12 Mich. 51. In Rawle Covts. (5th ed.) 642. mention is made of a class of cases which refuse the injunction unless the covenantee has paid off the incumbrance, referring to section 378 of that work. Reference to that section, however, shows that the rule is limited to cases in which the purchaser bought with notice of the incumbrance. ^Champlin v. Dotson, 13 Sm. & M. (Miss.) 553; 53 Am. Dec. 102; Paine v. Kemp, (Fla.) 82 So. 53. 24 Oldfield v. Stevenson, 1 Ind. 153. 33 Egan v. Teaman, (Tenn.) 46 S. W. Rep. 1012. 36 Ante, 184, and cases there cited. Cartwright v. Briggs, 41 Ind. 184, citing Hubbard v. Chappel, 14 Ind. 601; Hume v. Dessar, 29 Ind. 112; Rogers V. Place, 29 Ind. 577; Hanna v. Shield, 34 Ind. 84. In Wade v. Percy, 24 La. 117 1)30 MARKETABLE TITLE TO BEAL ESTATE. The fact that the purchaser has paid a considerable portion of the purchase money, seems to place him on no better ground, with respect to his right to an injunction. Where, however, the con- tract is executory, it will be remembered that the purchaser, on failure of the title, is, in some of the States, permitted to detain the premises, if necessary, to reimburse him for what he has already paid. 37 If the covenantee should be actually evicted by paramount title, there would, of course, be little probability of proceedings by the covenantor to enforce a vendor's lien or purchase-money mortgage, unless he should seek to recover a per- sonal judgment against the covenantee, or should make the adverse claimants parties. In either event the suit would be perpetually enjoined as to the covenantee. 38 But while a defect in the title is, in general, no ground for resisting the enforcement of a purchase- money mortgage where no personal judgment against the mort- gagor is sought, a different rule has been held to apply if the vendor conveyed to the mortgagor with a covenant against incum- brances, and an incumbrance on the premises exists. In such a case the enforcement of the mortgage will be enjoined until the vendor removes the incumbrance or reduces it to a sum not exceed- ing the unpaid purchase money. 39 The existence of a defect in the title is no defence to a suit by the grantor to enforce a vendor's lien, nor to a suit by the grantee to rescind, where the grantor removes the defect before decree in such suit. 40 In a case in which the title of the grantor was bad Ann. 173, it was held that (he vendor might be enjoined from enforcing a purchase-money mortgage until he hud complied with his agreement to fur- nish a perfect title. The civil law leans greatly to the side of the pur- chaHer on failure of title, and does not earry, perhaps, to its full extent, the rule that special agreements respecting the title are merged in the con- veyance. "Ante, ! 261. * Kingtilmry v. Milner, 60 Ala. 502. "Ante. 8 1R4. Coffman v. Scoville, 86 111. 335; Dayton v. Dusenbury, 25 X. J. Kj. 110; Union Xat. Hank v. Pinner, 25 X. J. Kq. 49.V, Stiger v. Bacon, 29 X. J. Eq. 442; Bennett v. Pierce, 50 W. Va. 604; 40 S. E. 395. ^Stokes v. Acklen, (Tenn.) 46 S. W. Rep. 310; McElya v. Hill, 105 Tenn. 319; 59 S. W. Rep. 1025; Rentier v. Marshall, (Tenn. Ch. App.) 58 S. W. Kep. 863. REMEDY BY INJUNCTION COLLECTION OF PURCHASE MONEY. 931 at the time the vendor's lien was reserved, but had been perfected by the Statute of Limitations at the time of suit to enforce the lien, it was held that the original want of title in the grantor was no bar to the suit. 41 334. Where there are no covenants. If the purchaser ac- cept a conveyance without covenants for title, there is of course no ground for an injunction if the title fails, unless the vendor falsely and fraudulently represented the state of the title. 42 The very fact that the conveyance was without covenants should raise, it would seem, a strong presumption that the purchaser was ad- vised as to the weakness of the title, 43 and that the contract was one of hazard. And if he purchases with knowledge that the title is doubtful, relying for his indemnity on the covenants he is to receive, and afterwards accepts a conveyance with covenants for title, he cannot afterwards enjoin the collection of the purchase money on the ground that the title is bad, but will be left to his remedy on the covenants, 44 unless, it would seem, he has been evicted and has had no opportunity to set up that defense at law. "Bennett v. Pierce, 50 W. Va. 604; 40 S. E. Rep. 395. "Ante, 267. Banks v. Walker, 2 Sandf. Ch. (N. Y.) 344; Sutton v. Sutton, 7 Grat. (Va.) 234; 56 Am. Dec. 109; Price v. Ayres, 10 Grat. (Va.) 575. 43 Of course no such presumption can arise if the purchaser be induced, through fraudulent representations, to accept a conveyance without covenants, as in Denston v. Morris, 2 Edw. Ch. (N. Y.) 37. "Merritt v. Hunt, 4 Ired. Eq. (N. C.) 409. The facts in this case are con- tained in the opinion delivered by RUFFIX, C. J., and being such as frequently occur in the sale of real property, justify the following copious extract: " The crier at the sale and several of the bidders prove, that the defendant (vendor) gave distinct notice that doubts rested upon the title, as he was unable to trace it or find any evidence of it upon the register's books, and that the defendant, in order to induce persons to bid a fair price for the land, said that he would warrant the title. The witnesses all understood that the purchaser was to take a conveyance for the land at all events, whether the defendant could show a good title or not in his testatrix or himself, provided he would bind himself by a general warranty in the deed. They state that the defendant was known to be a man of substantial and independent prop- erty, and that the bidders considered the title good to them by his agreement to make it good in case of an eviction. It is evident that the plaintiff, also, had the same impression and understanding. For, after he was declared the purchaser, he made no inquiry as to the title, nor asked any delay for the purpose of looking into it, but was satisfied to give his bond for the price 932 MAKKETABLE TITLE TO REAL ESTATE. 335. Temporary and perpetual injunctions. Injunctions to restrain the collection of the purchase money are not necessarily in rescission of the contract for the sale of lands. A perpetual injunction would of course have that effect and should not be granted unless the covenantee offers to reconvey the premises. 45 Temporary injunctions are frequently granted on allegations of the insolvency of the covenantor, until the rights of hostile claim- ants of the land can he decided, 46 or until the covenantor removes incuiubrances from the premises, in the latter case, it seems, whether the covenantor is solvent or insolvent. 47 immediately, and take a deed purporting, as was then thought, to convey a fee, and containing a general warranty binding the defendant and his heirs. He also sold a part to another person, and conveyed it in fee. If there be a defect in the title, therefore, it cannot affect the contract these persons made, for the contract, in terms, provided for such a possible or probable defect, and for the consequences of it. If a person chooses to buy a doubtful or bad title with his eyes open, and at his own risk, he is as much bound by that, as by any other contract fairly made. So, if he buys such a title with a guaranty of the seller against eviction or disturbance, he must take the title, and look to the vendor's covenants for his security or indemnity. He cannot complain of any injury, for he gets precisely what he bargained for, namely, a conveyance with the warranty of the vendor. In such a case the court will not look, into the title at all. because the bargain was, that it was immaterial whether it was geen brought upon them, would not Kiipport the injunction. The court must be able to see that there in some fourdition for the claim. Bennett v. Pierce, 50 W. Va. 604, 40 S. E. Rep. 305; French v. Howard, 3 Bibb (Ky.l, 301. The complainant must allege such farts in his bill as will affirmatively show such an incumhrancc or outstanding title as will defeat the vendor's title under which the com- plainant holds. Cantrell v. Mobb, 43 Ga. 103. In Rosenberger v. Keller. 33 Grat. (Va.) 494, it waa said by STAPLES, J.: "The numerous adjudged cases xhuw that this court has gone very far in staying the collection of the pur- chase money for land upon proof of a defect of the title where no unit is REMEDY BY INJUNCTION COLLECTION OF PURCHASE MONEY. 937 the owner of the outstanding title are barred by the Statute of Limitations. 56 Care must be taken, however, to distinguish from these cases a class in which injunctions to prevent a sale under a deed of trust, whether executed to secure deferred payments of the purchase money for land, or to secure general indebtedness, have been freely granted in Virginia and West Virginia upon an allegation that there is a cloud upon the title to the land about to be sold. In such a case the injunction is granted until the cloud on the title is removed. This is done in the interest of all parties that there may be no sacrifice of the property and that the title of the purchaser may be assured. 57 If the purchaser accept a conveyance from his vendor's vendor, with the agreement be- tween all parties that he shall pay the purchase money to his im- mediate vendor, he cannot, on failure of the title, enjoin the col- lection of the purchase money. He will be forced to his action on the covenants of his grantor. 58 The Statute of Limitations does not run against the right of the covenantee to detain the purchase money where the covenantor had no title. 59 pending or even threatened. But even here a distinction has always been made between an injunction to a judgment for the purchase money and an injunction to a sale under a deed of trust. In the latter case the court inter- feres the more readily upon the ground of removing a cloud upon the title in order to prevent a sacrifice of the property, whereas, in a like case, the court will not interfere with the vendor in enforcing his judgment since the doubt about the title may eventually .turn out to be frivolous and ground- less." 58 Bennett v. Pierce, 50 W. Va. 604, 40 S. E. 395. "Miller v. Argyle, 5 Leigh (Va.), 460 (508); Gay v. Hancock, 1 Rand. (Va. ) 72. See, also, the cases cited, ante, 337, n. 50. Lane v. Tidball, Gilm. (Va.) 130; Peers v. Barnett, 12 Grat. (Va.) 416; Morgan v. Glendy, 92 Va. 86, 22 S. E. Rep. 854. But in this case the fact that the vendor held under a deed of trust sale, which the trustee had improperly made, he being one of the creditors secured by the trust, was held no such defect in the title as would justify an injunction against a sale under a trust to secure the purchase money, where the evidence satisfactorily showed that the pro- ceeds of sale under the first mentioned trust had all been properly accounted for, except a trifling amount. 68 Price v. Ayres, 10 Grat. (Va.) 575. 69 Smith v. Ward, 66 W. Va. 190, 66 S. E. 234, 33 L. R. A. (N. S.) 1030. 118 CHAPTER XXXV. RESCISSION* IX CASES OF FRAUD AND MISTAKE. FRAUD ON THE PART OF THE GRANTOR. 338. General principles. Damages in equity. 339. MISTAKE OF FACT. 340. General rule. Negligence of purchaser. 341. Immaterial mistakes. 342. Mistakes as to quantity. 343. MISTAKE OF LAW. 344. General rule. Distinction between ignorance of law and mistake of law. 345. Erroneous construction of devise or grant. 346. Where the construction of the law is doubtful. 347. Misrepresentation of the law by the vendor. 348. 338. FRAUD ON THE PART OF THE GRANTOR. General principles. Equity accomplishes the rescission of an executed con- tract by cancelling the written evidence thereof, and decreeing that either party shall restore to the other whatever he has received in performance of the contract. Few cases, it has been said, turn on greater niceties than those which involve the question whether a contract ought to be delivered up to be canceled, or whether the parties should be left to their legal remedy. 1 The jurisdiction of equity in such cases has been reduced to very narrow limits; and, where it has been invoked by the purchaser on failure of the title, has been, with certain seeming exceptions, invariably denied, un- less the purchaser was induced to accept the conveyance by a fraudulent misrepresentation or concealment of facts on the part of the vendor, or unless the parties were mutually mistaken as to the existence of some fact or facts upon which tho validity of the title depended. 1 The exceptions to this rule arc those cases in which tho purchaser is permitted to enjoin tho collection of the *1 Sugd. Vend. 243. 'Ante, 5 267. Willan v. Willan, 16 Ve*. 83; Madden v. Leak, 5 J. J. Marsh. (Ky.) 05; Ogden v. Voder, 5 J. J. Marsh. (Ky.) 424. [938] RESCISSION IN CASES OF FRAUD AND MISTAKE, 939 purchase money where the grantor is insolvent or a non-resident so that recovery against him will be either impossible or unavail- ing when an eviction shall have occurred. 3 Other exceptions, indi- cated rather than positively declared, by a line of authorities already referred to, are those cases in which the grantee upon a clear and acknowledged failure of the title accompanied by a moral certainty of eviction will be permitted to detain the pur- chase money provided he reconveys the premises to the grantor. 4 In one of the States, and possibly in others, having paid the pur- chase money in full and received a conveyance with covenants for title, thie grantee will, on a clear failure of the title, be allowed to file his bill in equity for a rescission of the contract and return of the purchase money if the grantor is insolvent or a non-resident. 5 A decree for the rescission of an executed contract must provide that within a reasonable time the grantee shall execute a recon- veyance duly probated for registration in the State in which the land lies. 6 But a mere delivery of a deed to the purchaser without acceptance thereof by him, will not oblige him to execute a recon- veyance before he can recover the purchase money, the deed hav- ing misdescribed the property. 7 Of course a covenantee who has been evicted from the premises, cannot maintain a suit in equity to rescind the contract and recover back the purchase money. His remedy at law is adequate and complete. He has a present right to recover substantial damages for breach of the covenant. 8 8 Ante, ch. 34. Where the grantor is insolvent, and a recovery on his cove- nants for title would prove unavailing, equity will decree a rescission of the contract. Parker v. Parker, 93 Ala. 80, 9 So. Rep. 426. Aliter, where there was no fraud and no insolvency. Fields v. Clayton, 117 Ala. 538, 23 So. Rep. 530. 4 Ante, ch. 26. 5 Brannen v. Curtis, (Tenn. Ch. App.) 53 S..W. Rep. 234. In this case the purchaser was held entitled to the return of the purchase money and interest, taxes paid by him, and the value of his improvements, and was charged with the annual rental value of the land. 6 Winfrey v. Drake, 4 Lea (Tenn.), 290. T Fenton v. Alsop, 79 Cal. 402, 21 Pac. Rep. 839. 8 0hling v. Luitjens, 32 111. 23. See, also, Bradley v. Dibrell, 3 Heisk. (Tenn.) 522, where the complainant setting out facts showing a breach of warranty only, amended his bill charging fraud and misrepresentation by the vendor. 940 MARKETABLE TITLE TO HEAL ESTATE. The jurisdiction of a court of equity to rescind a contract for the sale of lands which has been executed by a conveyance, on the ground of fraudulent misrepresentation or concealment of facts respecting the title, is clear and undoubted. 9 We have already seen what acts, conduct and declarations of the vendor in relation to the title during the negotiations of the parties, are to be deemed fraudulent; also, when the purchaser will 'be deemed to have waived his right to rescind because of the fraud, and that fraud, of which he was ignorant, cannot be regarded as merged in the conveyance which he accepts ; also when the purchase money may be detained or recovered back, or damages recovered at law, or the collection of the purchase money stayed by injunction, in cases of fraud. 10 We have seen that one who has been induced 1 Sugd. Vend. (Sth Am. ed.) 375 (24G) ; Dart V. & P. 377; Bigplow on Fraud, 415. Berry v. Armistead, 2 Keen, 221 ; Gibson v. D'Este, 2 Y. & C. 542; Greenlee v. Gaines, 13 Ala. 198, 48 Am. Dec. 49; Read v. Walker, 18 Ala. 323; Lanier v. Hill, 25 Ala. 554, where an administrator, o. t. a., fraudu- lently represented that he had authority under the will to sell. Foster v. Cresset, 29 Ala. 393; Bryant v. Boothe, 30 Ala. 311, 68 Am. Dec. 117; Williams v. Mitchell, 30 Ala. 299; Prout v. Roberts, 32 Ala. 427; Parham v. Randolph, 4 How. (Miss.) 451, 35 Am. Dec. 403; Davidson v. Moss, 5 How. (Miss.) 673; English v. Benedict, 25 Miss. 167; Rimer v. Dugan, 39 Miss. 477, 77 Am. Dec. 637; Fitch v. Baldwin, 17 Johns. (X. Y.) 161; Shackel- ford v. Handly, 1 A. K. Marsh. (Ky.) 495; 10 Am. Dec. 753; Peebles T. Stephens, 3 Bibb (Ky.), 324, 6 Am. Dec. 6CO; Glass v. Brown, 6 T. B. Mon. (Ky.) 356; Bank v. Bank, 7 Lea (Tenn.), 420; Rice v. Silverton, 170 111. 342, 48 N". E. Rep. 969; Zuenker v. Kuehn, 113 Wis. 421, 88 N. W. Rep. 005; Ramirez v. Barton, (Tex. Civ. App.) 41 S. W. Rep. 508; Corbett v. McGregor. (Tex. Civ. App.) 84 S. W. Rep. 278: Buchanan v. Burnett, 102 Tex. 492, 119 S. W. 1141, 132 Am. St. Rep. 900; Brador v. Zbranek, (Tex. Civ. App.), 213 S. W. 331; Ison v. Saunders, 163 Ky. 005, 174 S. W. 505; Fisher v. Hurley, (N. J. Eq.) 100 All. 506, a case of knowingly false repre- -ntation by the grantor that she had a right of way over adjoining premiMM. "Ante, 1$ 102, 270, 329. The fact that a railway company, as grantor in a quit-claim deed, refers to a certain public land grant as the source of its title, which grant turns out to be invalid, is not sufficient to fix fraud upon the company. Union Pac. R. Co. v. Barnes, 64 Fed. Rep. 80. The grantee is entitled to rescind whether the grantor did, or did not, know that 1m representations were false. Buchanan v. Burnett, 52 Tex. Civ. App. <;. 114 S. W. 406. The representation of the grantor that he had a fee simple title, when his only interest was under a contract of sale to him subject to overdue mortgages, entitled the grantee to rescission of the executed con- tract. Allen v. Tallmt, 170 Mich. 664, 137 N. W. 97. RESCISSION IN CASES OF FRAUD AND MISTAKE. 941 to accept a conveyance of lands through the fraudulent representa- tions of the grantor respecting the title, is not limited to his action on the covenants contained in the deed. Equity has concurrent jurisdiction with courts of law in cases of fraud, and the objection that a grantee, seeking rescission of the contract, should sue at law on his warranty, or in trespass for deceit, will not be entertained. 11 The general rule is that on application for the rescission of an executed contract in case of fraud, the purchaser must reconvey or offer to reconvey the estate to the grantor, just as he must restore the premises to the vendor and place him in statu quo on rescission of an executory contract. But this rule has been held not to apply where the purchaser has never been in possession and the vendor had absolutely no title. In such a case the title is considered worthless, and the rule is the same whether the subject of the con- tract be real or personal property; if the thing, the consideration of which is sought to be recovered back, is entirely worthless, thera is no duty to return it. 12 Neither does the rule apply if it be clear that the seller will not receive back the premises. 13 It has been held in a case in which the conveyance was a forgery, and the alleged owner of the property a fictitious person, that the grantee was under no obligation to execute a reconveyance of the prem- ises. 1 * The purchaser will be entitled to a decree for the value of his improvements, upon rescission of an executed contract for the sale of lands on the ground of fraud or mistake respecting the "Ante, 270. 1 Story Eq. Jur. 193; Adams Eq. 177; 3 Pars. Cont. 177; Meek v. Spfacher, 87 Va. 162, 12 S. E. Rep. 397; Perry v. Boyd, 126 Ala. 162, 28 So. Rep. 711. But even in those jurisdictions in which the distinc- tions between legal and equitable procedure have been abolished, an action to rescind for fraud cannot be joined with an action on the covenants for title, since the former disaffirms, while the latter affirms, the contract. McLennan v. Prentice, (Wis.) 55 N". W. Rep. 764. 12 Bond v. Ramsey, 89 111. 29; Babcock v. Case, 61 Pa. St. 427, 100 Am. Dec. C5i. Here tha venlor conveyed land which he held under a tax deed, but it appeared that the land had been sold for taxes when none were due thereon. Jandorf v. Patterson, 90 Mich. 40, 51 N. W. Rep. 352. "Ante, 261. Culbertson v. Blanchard, 79 Tex. 486, 15 S. W. Rep. 700. "Wheeler v. Standley, 50 Mo. 509. See also Mills v. Morris, 156 Wise. 38, 145 N. W. 369, where the title to the property was in a step-son of the grantor, who was fraudulently represented by her to be dead. 942 MARKETABLE TITLE TO REAL ESTATE. title ; also for taxes paid by him, with interest thereon, and on the sums expended in good faith by him for permanent improve- ments. 15 But he must account for the rents and profits. 1 ' He is also entitled to a lien on such interest as the grantor has in the land, to secure the return of the purchase money paid by him. 17 If the grantee intends to rely upon the grantor's fraud as ground for rescinding the contract, he must distinctly allege the fraud in his pleadings, so that issue may be taken thereon. 18 But it will suffice to allege the specific fraudulent representation that was made, without setting out facts showing a want of title. 1 * We have seen that a purchaser electing to rescind the contract on the ground of fraudulent representations as to the title, must act promptly on discovery of the fraud. 20 Whether he has or has not waived his right to rescind must of course be determined by the circumstances of each particular case. 339. Damages in equity. According to the English equity practice, until within a comparatively recent period, no damages could be awarded to a purchaser, upon the rescission of a contract induced by the fraud of the defendant. But now by statute in England equity may give damages in such a case. 21 In America, the rule seems to be that equity will not take jurisdiction of a suit for damages, when that is the sole object of the bill, and when no other relief can be given; but if other relief is sought by the bill which a court of equity is alone competent to grant, and damages are claimed as incidental to that relief, the court, being properly "Perry v. Boyd, 126 Ala. 162, 28 So. Rep. 711. "Baptiste v. Peters, 51 Ala. 158; Allen v. Talbot, 170 Mich. 664, 137 N. W. 97. "Ramirez v. Barton, (Tex. Civ. App.), 41 S. W. Rep. 508. "Hart v. Hannibal A St. Jo. R. Co., 65 Mo. 509; James v. McKernon, 6 Johns. (X. Y.) 543; Patton v. Taylor, 7 How. (U. S.) 159. "Orendorff v. Tollman, 00 Ala. 041, 7 So. Rep. 821. "Ante, 8 276. Where it appeared that the purchasers were non-residents, and that the prevalence of yellow fever in the vendor's locality prevented an earlier offer, it waa held that an offer to rescind made six months after discovery of the fraud, was made within a reasonable time. Orendorff v. Tullman, 90 Ala. 641, 7 So. Rep. 821. See Allen v. Talbot, 170 Mich. 664, 137 N. W. 97, for circumstances excusing the failure of the grantee to act promptly. "1 Sugd. Vend. (14th ed.) 55, 233, 25J, 21 & 22 Viet. c. 27. RESCISSION IN CASES OF FRAUD AND MISTAKE. 943 in possession of the cause, will, to prevent multiplicity of suits, proceed to determine the whole cause. 22 This rule, doubtless, pre- vails at the present time in those States in which the distinction between legal and equitable procedure is still maintained. In other States, where that distinction has been swept away or has never existed, it is presumed that the courts in rescinding a con- tract, voidable on the ground of fraud, have power to give judg- ment for whatever damages the party defrauded may have sus- tained. In Kentucky it has been held that equity will not enter- tain a bill seeking damages for fraudulent representations by the vendor as to his title. In such a case equity relieves by setting aside the contract entirely, and not by awarding compensation in damages, except, perhaps, where the complainant has, for some reason, an inadequate remedy at law. 23 340. MISTAKE OF FACT. General rules. Mistake of fact, and in some cases mistake of law, has been held clear ground for rescinding an executed contract for the sale of lands, and for re- fusing specific performance of those which are executory. 24 The question of mistake, as it affects the right to rescind an executory contract, is lowered in importance by the general rule which per- mits the rescission of such a contract on a clear failure of the title irrespective of other considerations, unless that right has been waived, or the vendor is allowed to perfect the title. 25 But exe- 22 Ferson v. Sanger, Davies (U. S.), 252, 261. In Alger v. Anderson, 92 Fed. Rep. 696, it was held that the grantee, holding under a deed with a covenant of warranty, who had, by his laches, waived his right to a rescission of the executed contract on the ground of fraudulent misrepresentations as to the title, could not maintain a bill in equity to recover damages for fail- ure of title to part of the property, he not having been disturbed in the possession of the property. 23 Colyer v. Thompson, 2 T. B. Mon. (Ky.) 16, citing Hardwick v. Forbes, 1 Bibb (Ky.), 212; Waters v. Mattingly, 1 Bibb (Ky.), 244. 4 Am. Dec. 631; Robinson v. Galbreath, 4 Bibb (Ky. ), 183, which were all cases in which the contract was for the sale of personal property. 34 By the civil law an action of redhibition to rescind a sale and to compel the vendor to take back the property and restore the purchase money, could be brought by the vendee wherever there was error in the essentials of the agreement, although both parties were ignorant of the defect which rendered the property unavailable to the purchaser for the purposes for which it was intended. Bates v. Delavan, 5 Paige Ch. (N. Y.) 307. 26 As to the right to rescind an executory contract on the ground of mistake 944 IARKETABLE TITLE TO BE-AL ESTATE. cuied contracts can, as a general rule, be rescinded only upon the ground of fraud or mistake. A distinction then is to be observed between the cases which have arisen under these two heads. 26 The cases in which rescission of an executed contract for the sale of laud on the ground of mistake as to the title has been sought, may be divided into two classes: (1) Those in which there was a mutual mistake of the parties as to the existence or non-existence of some particular fact or facts upon which the validity of the title depends, and which the parties must be presumed to have had in contemplation at the time the conveyance was made. 27 (2) Those in which the parties were correctly informed as to all the facts, but were mistaken in their application of the law thereto. Of the former class are cases in which the purchase is of an interest or estate liable to be divested upon the happening of a particular event, and that event has already transpired without the knowl- edge of the parties, 28 as where the purchaser of an estate, pur autre as to the title, see Mead v. Johnson, 3 Conn. 507; Smith v. Robertson, 23 Ala. 312; Smith v. Mac-kin, 4 Lans. (X. Y.) 41; Post v. Leet. 8 Paige Ch. (N. Y.) 336; Davis v. Heard, 44 Miss. 51; Armistead v. Hundley, 7 Grat. (Va.) 64; Gilroy v. Alis, 22 Iowa, 174. "Hunt v. Hall. 12 Wis. 125. ^Kabours v. Cocke, 24 Miss. 44, where the validity of the title acquired under a sheriff's deed depended upon the fact that a forthcoming bond had been given by the execution defendant, and the parties acted under the mis- taken belief that the bond had been given. Martin v. McCormiek. 8 X. Y. 3^.1. In this case, the plaintiff purchased a tax title from the defendant, both bring ignorant that the premises had been redeemed by a party entitled. It was held that the plaintiff might recover back the purchase money. A mis- take in the In-lief that a tract of land claimed under the preemption law is within a district in which the lands may be preempted, is a mistake of fact and not a mistake of law. More-land v. Atchison. 19 Tex. 303. In Baptists v. Peters, 51 Ala. 1">8, land conveyed was supposed to be the separate estate of a married woman, when in fact it belonged to her deceased husband's estate, and adjoined the separate property of the wife. The contract was rescinded on the ground that there was a mistake of fact. Where an ad- ministrator sold an estate supposing his title to In- in fee, and the purchaser supposed he was buying a fee, and nothing passed but an equity of redemp- tion, it was held " a case of mixed and mutual mistake of law and fact," and that the purchaser was entitled to relief. Griffith v. Townley, flfl Mo. 13, 33 Am. Hep. 470. M l Story Kq. Jur. (13th ed.) ft 143; Hitchcock v. Giddings, 4 Price, 135. This is the leading English case on the point. The purchaser l>ought an interest in a remainder in fee expectant on an estate tail. At the time of RESCISSION IN CASES OF FRAUD AND MISTAKE. 945 vie, takes a conveyance in ignorance of the fact that the person on whose life the estate depends is dead. 26 Of the same class is a case in which, at the time of the sale, the parties were ignorant that the land had previously been sold and conveyed by one acting- tinder a power of attorney from the vendor, 30 or that the deed under which the grantor held was a forgery. 31 In all such cases, the subject-matter of the contract has no existence; there is no estate nor title, de facto or de jure, in the grantor, and the grantee is as much entitled to rescission as the buyer of a chattel which, at the time of the sale, had been destroyed without the knowledge of either party. 32 But care must be taken to distinguish between the purchase, the tenant in tail had barred the remainder by suffering a com- mon recovery, of which fact the parties were ignorant until after a con- veyance had been executed. The court rescinded the contract on the ground of mistake, resting the decision on the fact that the vendor had no interest in the subject-matter at the time of the sale. Lord ST. LEONARDS has expressed himself in guarded terms about this case, and Lord ELDO^ doubted its authority.' 1 Sugd. Vend. (8th Am. ed.) 376 (247). 29 Allen v. Hammond, 11 Pet. (U. S.) 63, ob. diet. 30 Armstead v. Hudley, 7 Grat. (Va.) 52. 31 Home v. Hughes, 19 Cal. App. 6, 124 Pac. 736. Case in which the purchaser was granted relief though vendor had conveyed to him by quit- claim only. Holden v. Reed, 45 Tex. Civ. App. 465, 101 S. W. 288. Where two persons erroneously believed themselves to be the heirs of A. by adoption, and one conveyed to the other his supposed interest in the lands of A., it was held that the mistake was one of fact, and that the grantee was entitled to a cancellation of the deed. Lewis v. Mote, 140 Iowa 698, 119 N. Y. 152. 32 It will be found that in nearly all of the cases cited below no possession was ever given to, or taken by, the purchaser, and in some that the supposed subject-matter of the contract had not even a physical existence. The rule stated in the text has been applied in the following cases, among others: Gardner v. Mayo, 26 Barb. (N. Y.) 423, where a municipal corporation sold a lot to enforce an assessment, and owing to a defect in the assessment pro- ceedings, the title was bad. Martin v. McCormick, 4 Seld. (N. Y.) 331, where a tax title had been purchased under the mistaken belief that the time for redemption had expired. In Granger v. Olcott, 1 Lans. (N. Y.) 169, the principle stated in the text was recognized, but relief was refused the purchaser of a defective tax title on the ground that the parties con- sidered the title to be doubtful when the contract and conveyance were made. In Goettel v. Sage, 117 Pa. St. 298, 10 Atl. Rep. 889, through a blunder on the part of a tax assessor, land had been sold for taxes on which none were in fact due. The holder of the tax deed sold and conveyed the premises to a third person, the parties acting upon the advice of an attorney, who had 119 MARKETABLE TITLE TO REAL ESTATE. mistake as to the existence of an estate of any kind in the grantor, de facto or de jure, and mere ignorance of the existence of a paramount title to the estate in a stranger, e. g., mere ignorance of the fact that a deed in the grantor's chain of title is. for any reason, inoperative to pass the title. In such a case, the ignorance of the defect is no ground for rescinding the contract, for one of the chief purposes of taking a conveyance with general warranty is to pro- vide against defects of title of which the parties are ignorant. 33 examined the title and pronounced it good. It was held that the subject- matter of the contract having no existence, there was a mistake of fact which entitled the purchaser to relief. In Hyne v. Campbell, 6 T. B. Mon. (Ky.) 286, the grantor held under a conveyance from William May, whom he believed, and innocently represented to the grantee, to have been the patentee of the land, whereas the patent had been issued to George May, and William May had no title whatever. The conveyance was canceled on the ground of mistake. So, also, in Bowlin v. Pollock, 7 T. B. Mon. (Ky. ) 26, where a testator devised certain public lands which he claimed, but had not entered upon or entitled himself to a patent when he died, and his devisee sold and conveyed the land, all parties believing the title to be good. In Hurd v. Hall, 12 Wis. 112, A. purchased certain school-land certificates, in ignorance of the fact that they were void because the school commissioners had not complied with certain provisions of the law relating to such sales, and it was held that, there being a mistake of fact, the purchaser \va- entitled to a rescission of the contract. Cited and approved in Lawton v. Howe, 14 Wis. 241; Costigan v. Hawkins, 22 Wis. 74, 94 Am. Dec. 583; Paul v. Kenosha, 22 Wis. 266, 94 Am. Dec. 598. "Middlekauff v. Barrick, 4 Gill (Md.), 290, 299; Bates v. Delavan, 5 Paige (N. Y.), 299; Sutton v. Button, 7 Grat. (Va.) 234, 56 Am. Dec. 109. See the remarks of the court in Hurd v. Hall, 12 Wis. 125. 133; Trevino v. Canlu, 61 Tex. 88, where it is said that covenants are intended to cover such cases. A purchaser, who is evicted because his legal adviser overlooks a defect in the title, cannot rescind the contract on the ground of mistake and recover back the purchase money. Urmston v. Pate, cited in Wakeman v. Duchess of Rutland, 3 Ves. 235, n. The reasoning of the text is satisfactory where the paramount title ia found to In- in a stranger. But suppose that the title is in the purchaser himself, as where the vendor held under a conveyance from a married woman insufficiently executed and acknowledged to pass her estate, and upon her death her heir, in ignorance of the facts, purchased the estate from her grantee, and took a conveyance without warranty. In such a case, according to the authorities, there i no doubt that equity would rescind the contract at the suit of he purchaser; yet it would be difficult to distinguish such a case from one in which the title, for a like reason, in found to be outstand- ing in a Ht ranger. See, in this connection, the observation of Lord COTTEN- HAM. in Stevviirt v. Stewart, O. & Fin. 008, that " it might not be easy to RESCISSION IN CASES OF FRAUD AXD MISTAKE. 947 The words "mistake of fact/' used in this connection, would seem to imply some particular fact or facts to which the attention of the parties was specially drawn, and which must be supposed to have been necessarily contemplated by them at the time the conveyance was made. 34 If this were not true, any conveyance would be liable to rescission on the ground of mistake, if, after it had been exe- cuted, the title should be first discovered to be bad. 35 distinguish a case where the purchaser buys his own estate by mistake from any other purchaser in which the vendor turns out to have no title. In both there is a mistake, and the effect of it on both is that the vendor receive? and the purchaser pays money without the intended equivalent." Without attempting to discover a principle upon which the two cases may be dis- tinguished, we content ourselves with stating the rule as we find it, namely, that if a man part with or purchase property in ignorance of facts showing the title to such property to be in himself, equity will rescind the contract and restore the property to him, or relieve him from any liability or loss incurred in the premises. Where there has been a breach of the covenant of warranty, there generally has been a mistake as to the title of the grantor, but it is hardly a ground on which the grantor can expect to be relieved of his covenant. Language of the court in Comstock v. Son, 154 Mass. 389, 28 N". E. Rep. 596. The fact that the grantor believed he had a good title cannot relieve him from liability on his covenants. Sanborn v. Gunter, (Tex.) 17 S. W. Rep. 117. 81 It is scarcely necessary to say that if the fact rendering void the title is known to the vendor and unknown to the purchaser, the right of the latter to relief is grounded not so much upon mistake or ignorance of facts upon his part as upon a fraudulent concealment of the facts by the vendor. 1 Story's Eq. Jur. (13th ed.) 147. 35 In Whittemore v. Farrington, 76 N. Y. 452, the court stated the facts and the law thus : " The question is then reduced to this : A party who, under a verbal agreement for the conveyance to him of lands is entitled to insist upon a good title and a deed with covenants, pays the consideration and is then tendered a deed without covenants. He demands a deed with covenants, and this is refused. He then accepts the deed without covenants, and, believing the title to be clear, records it and continues to occupy and improve the property. An incumbrance unknown at the time to both parties is afterwards discovered. Both parties are innocent of any fraud. It is conceded that no legal liability rests upon the grantor in such a case. Bates v. Delavan, 5 Paige (X. Y.), 300; Burwell v. Jackson, 9 N. Y. 535. In the absence of fraud or covenants a purchaser takes the title at his own risk. Then do the facts stated entitle the plaintiff to any equitable relief? We think not. The theory of the judgment is that the acceptance of the quit- claim deed in performance of the contract of exchange may be set aside on the ground of mistake, and the contract treated as still executory, and a new performance in a different manner decreed. The theory is ingenious, but is not founded upon any legal precedent or principle. In the first place 948 MARKETABLE TITLE TO REAL ESTATE. If a man purchase his own estate in ignorance of facts which would show his right, he will be relieved in equity. 30 Thus, if an heir were to take a conveyance of his own inheritance, ignorant of the fact that he was heir, there is no doubt that equity would rescind the contract. there was no mistake as to the character of the deed which was tendered and accepted. The grantee knew that by accepting it he took the risk of any defect in the title which might be discovered. He was not led into accepting it by any deception or suppression on the part of the grantor. Secondly, the delivery and acceptance of the deed constituted a full execution of the prior parol contract. The title to the land passed under the deed, and the original contract was merged in it. After a contract has been thus fully performed, there can be no jurisdiction in equity to decree a second per- formance. In a proper case equity has jurisdiction, on the ground of mistake. to reform the instrument or deed by which a prior contract has been executed or performed, but to authorize the exercise of this jurisdiction there must have been a mutual mistake as to the contents of the instrument sought to be reformed, or else mistake on one part and fraud upon the other. Win re both parties are innocent of fraud, and 1 both know the character and contents of the instrument, it cannot be reformed in equity merely on the ground that one of the parties would have exacted and would have been entitled to exact a different instrument had he been acquainted with facts rendering it to hi- interest to do so, or which, if he had known them, would have caused him to reject the instrument which he accepted. It is beyond the power even of a court of equity to make contracts for parties. The jurisdiction to re form written instruments in cases free from fraud is exercised only where the instrument -actually executed differs from what both parties intended to execute and supposed they were executing or accepting, and this mistake will be corrected in equity only on the clearest proof, and then only by making the instrument conform to what both parties intended. But an instrument or covenant, the nature and contents of which are fully compre- hended by both parties at the time of its execution, cannot be altered iu its terms by the court. See Wilson v. Deen, 74 X. Y. 531, and authorities there cited. If the decision of the trial court in this case can be sustained, any purchaser of lands who accepts a deed without covenants may have recourse against his grantor for a subsequently-discovered incumbrance or defect in the title, provided he can show that under his contract of purchase he might have in-i-ted on a deed with rmcnants, and that he liclieved the title to be clear when he accepted one without covenants. If the grantor and grantee had both intended that this deed should contain covenants, and supposed r the time of it* delivery that it did contain them, but through a mistake ot the scrivener they had been omitted, the court might insert them." M l S'upl. Vend. (14th Kng. ed.) 245. Binpham v. Bingham, 1 Ves. Sen. 1J<; ; CI...|MT v. I'liil.li-, L. II., 2 H. L. 170. The.-e. however, were tan- m which the mistake was rather as to the law applicable to known facts than mi-take as to the facts themselves. The rule is thus broadly stated by Lord BESCISSION IN CASES OF FRAUD AND MISTAKE. 949 It has been held that the purchaser cannot recover back the pur- chase money in a court of law where there is a mutual mistake as to title, and that his remedy is in equity by suit for rescission, the reason being that the grantor cannot recover back the purchase money and at the same time retain the legal title. 37 Of course, such an action may be maintained in those States in which the distinction between legal and equitable jurisdiction no longer exists, or where the courts have power to enter judgment with a condition that it shall not operate until the plaintiff reconveys the premises to the grantor. And, also, where no such land is in existence as that which the deed purports to convey. 38 The fact that lands which are no part of the premises actually purchased, and to which the vendor has no title, are by mistake irfcluded in the conveyance, is no ground for a rescission of the contract on the application of the grantee. 39 If by mistake 'there be no such land as the deed purports to convey, the grantee may ST. LEONARDS (1 Sugd-. Vend. [8th Am. ed.] 53'3) : " If a .person having a right to an estate purchase it of another person, being ignorant of his own title, equity will compel the vendor to refun'd the purchase money with interest, though no fraud appears/' It is obvious 1 that such. " ignorance of title " may consist in. ignorance not of the fact of title, but of a fact or facts on which the title depends, or of ignorance of the law applicable to known facts respecting the title. Little distinction- seems to have been *nade between ignorance of fact and ignorance of law in cases in which the party has acted upon the mistaken, belief that he had no interest in the premises. Newk Cont. in Eq. ch. 28, 43*2. See, also, Fitch v. Baldwin, 17 Johns. (X. Y.) 16>. Where A. set up an adverse claim to certain land and afterwards compromised it, and a deed was made to him upon- valuable consideration to be paid by him, the fact that at the time of the compromise his claim had ripened into a perfect title under the Statute of Limitations, was held not to entitle A. to rescind the contract and detain the consideration. Little v. Allen, 56 Tex. 133. 37 Homer v. Purser, 20 Ala. 573. The reason assigned in this case was that the legal title to the land was still in the plaintiff, and that he could not recover back the purchase money and retain the legal title. The fact was that the vendor, intending to convey a lot belonging to himself, conveyed one by mistake belonging to a stranger, who was in possession, and the grantee never had possession. Under such circumstances, at the first glance a recon- veyance would seem unnecessary. If, however, the grantor had conveyed with general warranty and had afterwards acquired title to the premises, it would inure to the benefit of the grantee; hence the necessity of a reconveyance. ^D'L'tricht v. Melchior, 1 Ball. (Pa.) 428. 19 Butler v. Miller, 15 B. Mon. (Ky.) 617. 950 MARKETABLE TITLE TO REAL ESTATE. rescind the contract and recover back the purchase money, whether the deed was with or without covenants for title. 40 The accept- ance of a deed which, by mistake, does not convey the lands pur- chased does not preclude the grantee from detaining the purchase money nor from recovering it back. But if the deed conveyed lands not intended to be included therein, the grantee would, of course, be required to reconvey the same. 41 And it may be stated, as a general rule, that the grantee cannot maintain an action to recover back the purchase money on the ground of mistake in a deed which may be reformed, unless he has first applied to the grantor for a correction of the error. 42 Of course, if the land con- veyed be not that which was purchased, the grantee will be relieved in equity ; and it is immaterial in such cases whether the convey- ance was with or without covenants of title. 48 On the other hand, if the vendee gets the land he actually purchased, the fact that it is misdescribed in the contract will not entitle him to rescind until he has given the vendor an opportunity to correct the mistake, and the latter refuses so to do. 44 If, by mistake, the deed includes land to which the grantor has no title, the grantee may elect to retain the portion to which the title is good; the grantor is not entitled to rescission as to the entire property on the ground of mistake. 45 "D'Utricht v. Melchior, 1 Dall. (Pa.) 429; Marvin v. Bennett, 8 Paige Ch. (X. Y.) 311. In Morse v. Elmendorff, 11 Paige Ch. (N. Y.) 277, it appeared that the parties contracted for the sale and conveyance of a sup- posed gore of land which had in fact no existence, there being a mistake by both parties as to that fact. It was held that the vendor could not compel specific performance by the purchaser, and neither could the latter require the vendor to convey an adjoining lot of land to which he had title. 41 Frazier v. Tubb, 2 Heisk. (Tenn.) 662. The fact that a deed, by mistake, does not convey the land intended to be conveyed, does not avoid the deed; and the grantee may recover on a covenant of seisin therein contained without first having the deed reformed. Calton v. Lewis, 119 Ind. 181, 21 N. E. Rep. 475; Roehl v. Haumesser, 114 Ind. 311, 15 N. E. Rep. 345; Gordon v. Good- man, 98 Ind. 269. u , Johnson v. Houghton, 19 Ind. 359. See ante, ch. 12, "Reformation of Deeds." Kyle v. Kavanaugh, 103 Mass. 356, 4 Am. Rep. 560; Spurr v. Benedict, 99 Mass. 463. **Lamkin v. Reese, 7 Ala. 170, citing Long v. Brown, 4 Ala. 622; Kvana v. Boiling, 5 Ala. 550. *Dorr v. Middleburg, 65 \V. Va. 778, 65 8. E. 97, 23 L. R. A. (N. S.) 9S7. RESCISSION IN CASES OF FEAUD AND MISTAKE. 951 The rule that the grantee on rescission of the contract must reconvey and restore the premises to the grantor and place him substantially in statu quo, applies as well where the contract is rescinded on the ground of mistake as for other reasons. On dis- covery of the mistake the purchaser has the right to elect to rescind and reconvey, or to affirm the contract, pay the purchase money, and look to his covenants for relief. 46 But it has been held that if by mutual mistake a part of the warranted premises is embraced within the limits of an older and superior grant, the purchaser is entitled to detain the purchase money or to recover it back pro tanto without offering to restore the premises to the grantor. 47 341. Negligence of purchaser. If by reasonable diligence the party seeking relief on the ground of mistake of fact could have been correctly informed as to such fact he will not be entitled to relief. The mistake must not have arisen from negligence, the means of knowledge being easily accessible. 48 Thus it is apprehended that the purchaser could not complain that there was a mutual mistake of the parties as to the sufficiency of the title, if it could be discovered from the public records that the para- mount title was outstanding in a stranger; for example, if there was a conveyance of the premises by the vendor's grantor on record prior to that under which the vendor held. 49 "Sandford v. Travis, 7 Bosw. (N. Y.) 498; Crosier v. Acer, 7 Paige (N. Y.), 137. In a case in which it appeared that the situation of the parties had so materially changed in consequence of the lapse of time, that the defendant could not be placed in statu quo, rescission was denied. Mull- reed v. Clark, 119 Mich. 578, 78 N. W. Eep. 658. 4T Doyle v. Hord, 67 Tex. 621, 4 S. W. Rep. 241; Gass v. Sanger, (Tex. Civ. App.) 30 S. W. Rep. 502. ^Bispham's Eq. (3d ed.) 191; Story Eq. Jur. (13th ed.) p. 153; Kerr F. &.M. 407; Trigg v. Reade, 5 Humph. (Tenn.) 541, 42 Am. Dec. 447; Nor- man v. Norman, 26 S. C. 41, 11 S. E. Rep. 1096. 43 The case of Hitchcock v. Giddings, 4 Price, 135, where the purchaser took a conveyance from a remainderman in ignorance that the remainder had been barred, has been doubted by Sir EDWABD SUGDEN on this ground. The purchaser might have ascertained the fact by a search. 1 Sugd. Vend. (8th Am. ed.) 376 (247). It is not easy to distinguish such a case from any other in which the title of the grantor turns out to have been entirely worthless at the time of the contract. There would, however, seem to be no room for the application of the doctrine of mistake in a case in which the vendor was in possession and prima facie owner of the estate. If there were, a covenant 952 MARKETABLE TITLE TO REAL ESTATE. 342. Immaterial mistakes. The mistake as to a matter of fact which will entitle the purchaser to relief must be material. The fact must have been essential, and not merely incidental, to the validity of the contract, and the mistake must have been such that but for it the purchaser would not have accepted the title, or the vendor have parted with his rights. 50 343. Mistakes as to quantity. Mistakes in the quantity of land conveyed have frequently been, made the ground of applica- tion by the purchaser for relief, either in the rescission of the entire contract or in the ratable abatement of the purchase money. Ordinarily no question of title is involved when the grantee merely complains that the boundaries set forth in the deed do not contain the number of acres therein purported to be conveyed, or which the purchaser, under the contract, is entitled to* require." If, however, there be a mutual mistake as to the location of adjoining surveys, by which the land is encroached upon, the title to the full tract bargained for does not pass, and the purchaser is entitled to relief, though the conveyance was without warranty. 52 of warranty would be a useless formality. In Campbell v. Carter, 14 111. 286, a creditor who had a lien on the land of his debtor took the land in satis- faction of the debt, and entered satisfaction of his lien on the record, in ignorance of a junior incumbrance on the premises. It was held that he was not entitled to relief on the ground of mistake, as against the junior inrumbrancer, nor to reinstate the lien which he had released. M Kerr F. & M. 408; Bispham's Eq. (3d ed.) 191 ; 1 Story Erd CIIKLMSFORD saying that ignorance of the law arising upon the doubtful construction of a grant is very different from the ignorance of a well-known rule of law. and that there are many cases to be found in which equity, upon a mere mistake of the law, without the admixture of other circumstances, has given relief to a party who has dealt with his property under the influence of such mistake. But see the apparently conflicting language of the same judge in Midland Great West., ete., R. Co. v. Johnson, 6 H. L. C. 810, 811, and Story's Eq. Jur. (13th ed.) f 127. * Per Lord WESTBUBY in Cooper v. Phibbs, 2 H. L. 149, 17 Ir. Ch. 73. This interpretation of the maxim was criticized in Hunt v. Rousmaniere, 1 Pet. (U. R.) 15, and Winlermute v. Snyder, 3 X. J. Eq. 41)9. It is also obscure, when we remember that private rights are governed by the general law. "Bispham's Kq. (3d ed.) 187. "Per Lord KINO in Landsdowne v. Landsdowne, Mos. 364; criticized, 1 Story Eq. Jur. (13th ed.) fi 116. * language of Chancellor KKNT in Lyon v. Richmond, 2 Johns. Ch. (N. Y.) 59. Hardigrce v. Mitchum, f.l Ala. 151. In this case the vendor had agreed to pay off a judgment lien on the premises at a time when the lien was be- lieved, by the parties, to be valid. Afterwards the law creating the lien was RESCISSION IN CASES OF FRAUD AND MISTAKE. 961 348. Misrepresentation of law by vendor. It is a general rule that if a party is induced to execute a contract bj representa- tions which are untrue, but innocently made, he will be entitled to a rescission. 63 Such a state of facts frequently appears in suits for rescission by grantees alleging false and fraudulent repre- sentations in respect to the title. If the vendor knew the repre- sentation was false, the purchaser would be entitled to rescind on the ground of fraud. If the representation was innocently made, then the purchaser would be relieved on the ground of mistake. 66 The question whether the mistake in such cases was one of law or of fact seems not to have been considered important, it being apparently conceded that' the falsity of the representation alone entitled the purchaser to relief. And, generally, it may be said that if, in a case of mistake or ignorance of law affecting the title on the part of the purchaser, there are circumstances indicating- fraud, imposition, deceit or unconscionable advantage on the part of the vendor, a court of equity will gladly lay hold of them as an escape from the arbitrary maxim, ignorantia, legis neminem exciisat. 61 The mistake, to be a ground for relief, must, of course, be the mistake of both parties. The importance of this rule is chiefly decided to be unconstitutional, and the vendor refused to indemnify the vendee who had bought the premises at a sale under the judgment to protect himself. The court said : " No diligence on the part of the purchaser could have im- parted to him any knowledge of the legal invalidity of the supposed incum- brance. No notice to him of that invalidity, or that it was so regarded by the purchaser, was given. On the contrary, the vendor shared in his ignorance or mistake of the law, and had promised performance of the duty primary upon him in legal contemplation the removal of the incumbrance. It would be a reproach to the law if the vendor could resist the claim of the purchaser." 65 See cases cited, ante, 105. Bigelow on Fraud, 4SS; Lanier v. Hill, 25 Ala. 554, where the vendor and administrator c. t. a. falsely but innocently represented that he had authority under the will to sell. In Drew v. Clarke, Cooke (Tenn.), 374, 5 Am. Dec. 698, it was laid down that if a man is clearly under a mistake in point of law, which mistake is produced by the repre- sentation of the other party, he can be relieved as well as if the mistake were as to a matter of fact. See, also, Moreland v. Atchison, 19 Tex. 303; 2 War- velle Vend. 812. "Fane v. Fane, L. E, 20 Eq. Gas. 698. 87 1 Beach Mod. Eq. Jur. 36; 1 Story Eq. Jur. (13th ed.) 133; Bispham Eq. trine. (3d ed.) 185. 121 962 MARKETABLE TITLE TO REAL ESTATE. felt in those cases in which the purchaser seeks to have the con- tract reformed. Its importance, where the rescission of an exe- cuted contract is sought, is lessened by the consideration that if the vendor, knowing of matters of law or fact rendering the title worthless, allowed the vendee to proceed without communicating such knowledge, he would, as a general rule, be deemed guilty of fraud, and upon that ground alone the vendee would be relieved. INDEX [REFERENCES ARE TO PAGES] Abatement of purchase money. (See PURCHASE MONEY, COMPENSATION FOB DEJECTS, SPECIFIC PERFORM- ANCE. ) Absence. title as dependent on long-con- tinued, of party in interest, 814 Abstract of title. may be supplemented by written evidences of title, 26 what it should show, 163 root of title, 165 duty to furnish, 167 property in, 170 time in which, should be furnished, 169 time in which to examine title and verify, 171 summary of principal sources of objections to title, 173 objections apparent on face of title papers, 176 objections apparent from the public records, 182 objections arising from matters in pais, 180 Acceptance of grant. purchaser is not estopped by, 600 Acceptance of title. ( See WAIVER OF OBJECTIONS.) Accident. (See MISTAKE.) Acknowledgment. of deeds. acknowledgment, necessity for, 58 defective certificate makes title doubtful, 59, 834 examples, 835 statutory form should be literally followed, 59 venue of certificate, necessity for, 60 name of certifying officer should appear, 60 purchaser cannot take acknowledg- ment, 61 interested party cannot take ac- knowledgment, 61 official designation of certifying of- ficer, 61 Acknowledgment of deeds Cont'd. certificate by de facto officer is valid, 62 name of grantor should appear in certificate, 63 acknowledgment by officers and fiduciaries, 63, 64 acknowledgment by attorney in fact, 64 annexation of deed and reference thereto, 64 jurisdiction of certifying officer, 65 personal acquaintance with grantor, 65 fact of acknowledgment must ap- pear, 66 privy examination of wife must appear, 67 must recite explanation of contents of deed, 68 must recite declaration that act was voluntary, 69 wish not to retract, 70 certificate should contain recog- nition of seal, 71 certificate should be dated, 71 certificate must be signed, 71 abbreviation " J. P.," " N. P.," etc., after signature, 72 certificate should be under officer's seal, 72 surplusage will not avoid certifi- cate, 73 clerical mistakes, when immaterial, 73 certificate cannot be amended after delivery, 75 acknowledgment cannot be proved by parol, 75 certificate cannot be amended or cured by evidence aliunde, 75 title as dependent on sufficiency of, 834, n. Acreage. warranty does not extend to, 363 Action. against vendor for breach of con- tract, 11, 18 for deceit, 3, 247 on covenants for title, 270 to recover back purchase money, 632, 639 [963] 904 INDEX [REFERENCES ABE TO PAGES] Action Continued. to compel specific performance, 519 to restind contract, 749 circuity of, avoided by estoppel, 562, 582 and by recoupment, 493 Acts of ownership. (See WAIVER OF OBJECTIONS.) not necessarily a waiver of objec- tion to title, 197 Acts of sovereignty. vendor cannot be required to cov- enant against, 157 constitute no breach of warranty, 383 Actual eviction. (See EVICTION.) Actual seisin. though wrongful, supports cove- nant of seisin in certain States, 272 dissent from this doctrine, 273 Administrators. (See EXECUTORS.) Adverse claimant. (See EVICTION, WARRANTY.) entry of, constitutes breach of warranty, when, 388 surrender of possession to, 394 hostile assertion of title by, neces- sary to constructive eviction, 399, 405 existence of, makes title unmarket- able, 799 Adverse possession. constitutes breach of covenant of warranty, 390 title by, marketable, 805. (See DOUBTFUL TITLE.) not marketable where prem- ises' hold adversely, 799 Adverse suit. (See COVENANT OF WARRANTY.) covenantor muat be notified of, 400 Affidavits. in Mipport of abstract, 25, n, 795, n. admitted to record, 164 Affirmance. of contract, remedies in, 3 by action at law, 11 by proceedings in equity, 519 After-acquired title. ( See ESTOPPEL . ) enures to benefit of grantee, 561 grantee may be required to take, 581 Agent. may insert in agreement provisions as to the title, 23 usual covenants may be required from, 159 fraud of, binds principal, 250 but principal not liable to action of damages, 250 agent is personally liable in damages, 251 and criminally, in some juris- dictions, 251 Agreements respecting the title, implied agreements, 20 good title implied in every sale, 20 effect of contract silent as to quantity of interest, 20 contract to sell means that fee simple is sold, 21 effect of unrestricted agreement to Bell, 21 implication of good title rebutted by notice of defect. _'_ no implication of good title in ministerial sales, 23 except in salt- by assignee in bankruptcy. 13S sale of lease implies good title in landlord. '2-2 agreement to quitclaim will not embrace after-acquired inter- est, 22 no implication of title in assign- ment of contract to sell. 2'.'- nor in assignment of land office certificate. -J:i express agreements, 24 written contract usually entered into. :M tins often specifics kind of 4itlc to be conveyed. 24 contract for title deducible of record. 2"> stipulation that abstract shall show title, 25 agreement to furnish satisfac- tory abstract, "2~t agreement tint title shall be or\." T'.M terms and condition of sale. 24 verbal declarations of auctioneer, 27 agreement to make " good and sufficient deed," 34 INDEX 965 [REFERENCES ABE TO PAGES] Agreements respecting the title Continued. means that deed must convey indefeasible estate, 36 agreement to convey by quit . claim, 39 but such agreement must be clear and unambiguous, 39 obliges purchaser to take the title such as it is, 40 agreement to take defective title no waiver of right to covenants, 40 agreement to sell " right, title and interest," 40 obliges purchaser to take the title such as it is, 40 but vendor must have some kind of title or right, 40 agreement to purchase "subject to" liens, 40 adds amount of lien to the purchase price, 41 but does not make purchaser personally liable to lienor, 41 agreement that lien shall be de- ducted from purchase money, 41 English rules respecting the con- tract, 28 provisions dispensing with mar- ketable title, must be clear, 30 purchaser bound by agreement to take doubtful title, 30 common conditions of sale, 27, 29 can purchaser show aliunde, that title is bad? 31 how conditions construed, 32 doubtful conditions construed in favor of purchaser, 32 defects should be stated in the particulars, 32 bidding without objection to conditions, 32 stipulation that sale shall be void if title defective, 33 declarations of auctioneer, when admissible, 33 discrepancy between particulars and deed referred to, 34 executory agreements merged in deed and covenants. (See MERGER.) mutual agreements to rescind. (See RESCISSION.) not within Statute of Frauds, 630 Agreements respecting the title Continued, specific -performance of agreements 519 special agreements as to the title, 788 Alien. conveyance on behalf of, without his request, title held market- able, 846, n. Amendment, of certificate of acknowledgment, 75 Annexation. of certificate of acknowledgment to deed, 64 Application of purchase money. duty to see to, makes title unmar- ketable, 862 duty to see to, to be noted in ex- amining title, 179 Apportionment. of damages on breach of covenant as to part, 444 Assets. heir without, not bound by an- cestor's warranty, 374 Assignee. in bankruptcy, covenants by, 158 caveat emptor applies to sales by, 138 exception in New York, 138 of covenants for title. (See the several covenants.) not bound by equities of which he had no notice, 422 may sue in his own name, when, 411 of purchase-money note caution with respect to rights of, 554 Assumpsit. when may be brought by pur- chaser on failure of title, 12, 14, 639 attacking vendor's title in action of, 503 to try title, 503 objection that question of title cannot be determined in, con- troverted, 504 proper action to recover back pur- chase money, 639 but cannot be maintained after contract has been executed, 734 INDEX [REFERENCES ARE TO PAGES] Assurance. (See FTBTHER Assra- Attachment. should be noted in examining title, 183 must be docketed to bind pur- chaser, 1S3 is breach of covenant against in- cumbrances, when, 310 is an objection to title, when, 860 Attestation of deed. necessity for, in some States, 58 subscribing witness should be competent, 58 Attorney in fact. how deed should be executed by, 50 how deed should be acknowledged by, 64 usual covenants may be required from, 159 title as dependent on entry of satisfaction by, 86S Auctioneer. verbal declarations of, as to title admissible, when, 27, 33 Bankruptcy. caveat emptor applies to sale by assignee, when, 138 covenants for title by bankrupt, 158 estoppel of bankrupt, 590 title as dependent on act of, 776, n, 797 effect of discharge, 377 Bargain, Loas of. (See DAMAGES, M HAM-RE OF.) Benefit. of covenants, who entitled to. (See WARRANTY.) Bond for title. (See TITLE BOXD.) Breach. of covenant for seisin, 274 against incunrbrances, 308 for further assurance, 477 for quiet enjoyment and of war- ranty, 379 how assigned in pleading, 471 of contract, as ground for dam- ages, 11 for rescission, 626 Building restrictions. constitute breach of covenant against incumbrances, 323 render title unmarketable, 853 Burden of proof. in action for breach of contract, 16 covenant of seisin, 294 covenant against incumbrances, 353 covenant of warranty, 473 by vendor for specific perform- ance, 753 by purchaser to recover back purchase money, 645, 765 to rescind contract, 765 to show marketable title, 645, 818 Caveat emptor. meaning and application of this maxim, 6, 79 does not apply between lessor and lessee, 443 application to judicial sales, 60 what is a judicial sale, 80 when objections to title must be made, 81 effect of confirmation of the sale, 81 effect of bid with notice of de- fect, 83 when maxim does not apply to judicial sale, S7 distinction between sale of " land " and sale of " estate," 90 comments upon the maxim, 88 does not apply in cases of fraud, 90 several kinds of fraud affecting judicial sale, 91 fraud will not excuse negligent purchaser, 91 errors and irregularities in the proceedings, 92 no objection to title thereunder, 92 unless the error goes to tho ju- risdiction, 97 what is "collateral attack." 00 respects in which jurisdiction may be 'wanting. 1OO. ln-j existence of jurisdictional facts presumed, 103 extraneous evidence inadmissi- ble. 104 record cannot be contradicted, 104 presumption of jurisdiction does not apply to inferior courts, 105 INDEX 967 [REFERENCES ABB TO PAGES] Caveat emptor Continued. when does want of jurisdiction appear from record? 106 title as affected by matters oc- curring afcter jurisdiction -has attached, 108 fraud as ground for collateral attack, 109 fraud in procuration of judg- ment, 109 fraud in making judicial sale, 110 purchase by officer invalid, 111 application to sales by executors and administrators, 112 distinction between sales under a will and those under court orders, 113 purchase by personal representa- tive is void, 113 sales in pursuance of. judicial license, 113 regarded as judicial sales, 114 effect of fraud by representative, 115 when 1 purchaser excused from performance, 117 want of jurisdiction, errors' and irregularities, 118 application to sales by sheriffs, tax officers, etc., 122 maxim strictly applies to sher- iffs' sales, 1'22 purchaser cannot recover from execution plaintiff, 126 when purchaser relieved, 12-7 effect of fraud by sheriff atfd execution -plaintiff, 129 title under void judgment, 130 title under void execution sale, 133 maxim strictly applies to tax sales, 136 and to sales by trustees, as- signees, etc., 136 subrogation of purchaser at ju- dicial sale, 138 where sale is void, 138 where sale is valid, 144 fraud of purchaser destroys right of, 145 Certificate of acknowledgment, requi- sites. (See ACKNOWLEDGMENT.) Cestui que trust. covenants for title may be re- quired from, 158 Champerty. as connected with doctrine of actual seisin, 272 Champerty Continued. does not invalidate covenants for title, 276 does not prevent enuring of after- acquired title, when, 572 Chose in action, right to damages for breach of covenant is, 279 not assignable at common law, 281 but assignment enforced in. equity, 286 Circuity of action. avoided by doctrine of estoppel and after-acquired estate, 575, 58.7 by detention of purchase money on breach of covenant, 493, 700 Collateral attack. (See CAVEAT EMP- TOB.) on judgment, as affecting question of title, 99 definition of this term, 99 Common conditions, of sale, what are, -27, 29. Compensation for defects of title. (See PURCHASE MONEY, DAM- AGES.) purchaser may accept title with. (See SPECIFIC PERFORMANCE. ) vendor may require purchaser to take title with, when, 907 but only where part lost is not material, 907 and only where lien is inconsid- erable, 907 equity will direct an inquiry on these points, 908 purchase with notice of defect, 908, 909 contract provision for abate- ment, 909 compensation decreed according to relative value, 810 remedy of vendor is exclusively in equity, 910 rule does not apply where ob- jection- goes to title to whole, 911 contract cannot be rescinded in part, 911 rule where title to one of several lots is bad, 911 rule does not apply where title fails to considerable portion, 912 or to part indispensable to en- joyment of residue, 912 968 INDEX [REFEKKJiCES ABE TO PAGES] Compensation for defects of title Continued. or where no means for estimat- ing compensation accurately, 913 purchaser cannot be compelled to accepjt a lesser estate, 914 nor to accept an undivided moiety, 915 relief denied vendor if guilty of fraud, 9J5 and where he has evicted pur- chaser, 915 purchaser cannot be compelled to accept indemnity, 915 Concealment. (See FRAUD.) of defects of title fraudulent, when, 252 Concurrent remedies. various, on failure of title, sum- marized, 3 Condemnation of lands, in eminent domain, no breach of warranty, 384 Conditions, of sale, 2-7, 29 performance of, as affecting title, 803 Confirmation of sale. (See CAVEAT K.M1TOR.) purchaser cannot object to title after, 81 exceptions to this rule, 85 comments upon the rule, 88 Conflict of laws. as to effect of covenants for title, 288 a to validity of deed. 574 as to measure of damages, 331 Consideration. of deed may be shown, 436 expressed, not conclusive, 436 partial failure of, as defense to action for purchase money, 500 \vailt of. no defense to action on warranty. 362 of sealed instrument may be in- quired into, 658 Consideration money. (See DAM- AGES, MKASCRK OK.) usually measure of damages on brciidi of contract. 226 and on breach of covenants, 424 that exprebbvi may be contra- dicted, 436 Consideration money Continued, if none expressed, may be shown, 436 (See INTEREST AND PURCHASE MONEY.) Construction. title as dependent on, of deed or will, 775, S39 Constructive eviction. (See WAE- RAXTY, COVENANT OF.) inability to get possession of prem- ises, 390 compulsory surrender of premises, 394 purchase of outstanding title, 401, 439 Constructive notice, of defective title from possession of stranger, 188 from the public records, 207, 253, to2, 728 Contingent remainder, title dependent on, not market- able, 8U3 will not pass by quit claim, when, 59-i Continuing breach, Doctrine of. of covenant for seisin, 2SS Contract. (See AGREEMENT.) executory, and executed, 3 executed, cannot -be rescinded, when, 6, 8, 687, 938 afDrmance of, 3. (See ANALYSIS, p. VII.) action for breach of, 11 implied and express, as to title 20, 24 usual provisions, 24 to make " good and sufficient deed," 34 measure of damages for breach of, 225 specific performance of, 519 merger of executory, in deed, 489, 714 rescission of, 626. (See ANALYSIS, p. VII.) Conveyance. (See DEED.) tendered by vendor, sufficiency of, 42 Coparceners. .inls implied in partition be- tween, 372 INDEX 9G9 [REFERENCES ARE TO PAGES] Corporation, how deed of, should be executed, 51 how acknowledged, 64 title as dependent on devise to, 844, n. Costs. of examining title may be recov- ered, 14, 233, 645 recoverable as damages, when, 233, 453, 645 of perfecting the title, 878 of reference to master in chancery, 902 Counsel. fees of, as element of damages, 233, 453 opinion of, not admissible on ques- tion of good title, 773 title to be satisfactory to pur- chaser's, 790, 819 Covenant, Action of. when must be brought, 11 Covenantor. may except incumbrance or par- ticular claims from covenant, 302 tortious acts of, are breach of warranty, 382 notice to, of suit of adverse claim- ant, 460 Covenants, mutual and dependent, when, 209, 886 Covenants for title. necessity for, 147 may be required notwithstanding consent to take defective title, 40 what are the usual covenants for title, 147 form of the usual covenants, 147, n right to full or general covenants, 150 from grantors in their own right, 151 from nominal party to deed, 156 from mortgagors, 157 from fiduciary grantors, 158 from ministerial grantors, 162 specific performance of, 557 operation by way of estoppel. ( See ESTOPPEL.) Covenants for title Continued, detention of purchase money on breach of, 480 (See PURCHASE MONEY, DETEN- TION OF.) where no covenants for title, 705 see the several covenants for title for assignability what constitutes breach measure of damages when implied persons bound and benefited qualifications and restrictions Creditors, reformation of deed as against, 621 Damages. when action, for, on failure of title improper, 15 when recoverable in equity, 528 may be recovered at law for breach of contract to convey good title, 11, 223 but not when title is merely doubtful, 16 fraud and deceit in respect to the title, 238 breach of covenants for title, 289, 339, 424 recoupment, 493 Damages, Measure of. when too remote, 223 where vendor acts in good faith, 225 none for loss of bargain, 225 Flureau v. Thornhill, Hopkina v. Lee, 225 barter contracts, 232 expenses of examining title, etc., 233 interest as element of damages, 234 rents and profits as set-off, 235 no allowance for improvements, 236 where vendor acts in bad faith, 238 where vendor expects to obtain the title, 238 where vendor refuses to remove ob- jections, 243 liquidated damages, 244 for breach of covenants for title. (See the several covenants.) Date. not necessary to validity of deed, 46 of certificate of acknowledgment, 71 970 INDEX [BEKCBEXCKS ARE TO PAGES] Death. title as dependent on presumption of, 815 Decedent. title as dependent on insolvency of, 847 intestacy of, 847 Deceit. (See FRAUD.) action of, when it lies, 247 is concurrent with action for breach of contract, 13 Declaration. ( See PLEADING, DECEIT. ) of auctioneer as to title, 27, 33 what should be set forth, in action on covenant for seisin, 297 covenant against incum- brances, 352 covenant of warranty, 471 for breach of contract, 14, 16 for deceit, 268 to recover back purchase money, 608 Deed. tendered by vendor, sufficiency of, 42 vendor must prepare and tender, 43 must be acknowledged and ready for record, 43 must contain covenants to which purchaser entitled, 43 essential requisites of the convey- ance, 44 informal or irregular, may be re- jected, 44 may be corrected and reacknowl- edged, 45 purchaser must accept, correcting errors, 44 consideration should be recited in some States, 45 should be written or printed on paper or parchment, 45 should be dated, 46 dated on Sunday is valid, 46 must contain parties grantor and grantee, 46 should set forth their Christian names, 47 but name need not appear in grant- ing clause, 47 void if grantee uncertain, 47 to fictitious person is void, 47 to partners should be to them as individual*, 48 name* of parties should be cor- rect ly stated, 48 Deed Continued. owner of record must join in deed, 48 purchaser may reject deed of stranger, 48 from third person, when sufficient, 49 all parties in interest should join in, 50 executed by attorney, may be re- jected, when, 50 how executed by attorney or cor- poration, 50 grantor should have power to con- vey, 51 and be legally competent, 51 how partnership conveys, 51 should contain relinquishment of dower right, 50, 52 must contain proper words of con- veyance, 52 but not necessarily in granting clause, 53 must contain proper description of premises, 53 sufficient if land can be identi- fied, 54 examples in which, held void, 54 inadequate description no notice to purchaser, 55 of "assets" will not pass lands, 55 interest conveyed should be cor- rectly described, 56 of "right, title or interest," is a mere release, 56 of greater interest than vendor has, not void, 56 should be signed and sealed by grantor, 57 seal should be recognized in body of, 58 attestation of, by subscribing wit- ness, 58. (See ACKNOWLEDG- MENT.) should not contain unauthorized restrictions or reservations, 76 containing blanks or erasures may be rejected, 76 objections to, must be made when tendered, 77 otherwise held to be waived, 77 objections to title apparent from face of, 176 subsequent, is breach of warranty in prior, 470 when passes after-acquired title, 561 when reformed in equity, 603 where void, purchase money may be detained. 713. 7.17 INDEX 971 [REFERENCES ARE TO PAGES] Deed Continued, title as dependent on construction of, 839 as dependent on defective, 833 when rescinded, 938 tender of purchase money and de- mand for, 209 Defeasance, what is a, 183 records should be searched for, 183 Defective conveyance. (See REFOR- MATION. ) purchaser may reject, 42. (See DEED.) title as dependent on, 833. Defective title. (See DOUBTFUL TITLE.) classification of various sources of, 176 effect of purchase with notice of, 203 rescission of contract in cases of, 626, 632, 749 detention of purchase money where. (See PURCHASE MONEY.) notice of, no bar to recovery on warranty, 361 concealment of, a fraud, 252 at judicial and ministerial sales. (See CAVEAT EMPTOB.) Defenses of purchaser, to action for damages, 18 suit for specific performance, 752 action to recover purchase money, 480, 632 Delay. in suit for specific performance, 528 of vendor in performing contract, 894 in objecting to title, 199 in objecting to vendor's fraud, 201 Demand for deed. (See TENDER OF PERFORMANCE.) as condition precedent to action for damages, 209 when need not be made, 212 Deposit. may be recovered if title is de- fective, 636 Descent. title as dependent on question of, 795 Description. of premises in deed, 53. DEED, SUFFICENCY OF.) title as dependent on, 834, n. (See Detention of purchase money. (See PURCHASE MONEY, DETENTION OF.) Devisee. liability for damages on warranty of devisor, 374 of covenantee entitled to benefit of covenant, 379 title as dependent on devise, 839, 840 Disturbance. tortious, no breach of warranty, 379 unless by covenantor himself, 382 Doubtful title. question of, may be made in a court of law, 16 purchaser never required to ac- cept, 767 meaning of the expression, 768 and of the expression '' marketable title," 768 mathematical certainty of perfect title impossible, 769 doubts must not be captious or frivolous, 770 may depend on question of law or of fact, 772 this objection not usually made by lessees, 773 question is for the court and not for the jury, 773 opinions of counsel not admissible on question of, 773, 819 cases in which title will be held doubtful, 774 probability of litigation against purchaser, 774 decision adverse to title which court thinks wrong, 775 decision in favor of title which court thinks wrong, 775 doubtful construction of instru- ment, 775 where court would instruct jury to find in favor of fact invali- dating the title, 776 where the circumstances raise a presumption of a fact fatal to the title, 776 cases in which title will be held not doubtful, 776 972 INDEX [REFERENCES ARE TO PAGES] Doubtful title Continued. whore there is no probability of litigation against the pur- chaser, 776 where there has been a decision against the title which the court holds wrong, 777 where the doubt depends on the general law of the land, 777 or on a rule of construction un- affected by context of instru- ment, 778 or on a conclusive presumption of fact, 778 or on mere suspicion of mala fides, 778 question of doubtful title may be made at law as well as in equity, 780 judgment on question of title does not bind strangers, 784 this fact a strong ground of ob- jection to title, 784 in some States vendor permitted to bring in parties in interest, 787 special agreements respecting the title, 788 effect of agreement for " good title of record," 789 effect of agreement for "market- able" title, 7S9 that titlo shall be satisfactory to purchaser. 790 that title shall be satisfactory to counsel. 790 mere expression of dissatisfaction insufficient, 792 necessity of pnrol evidence to re- move doubts renders title un- marketable, 794 but title not necessarily doubtful because dependent on facts resting in parol, 795 sale implies a contract that title shall be deducible of record, 796 court may inquire into facts on which objection is rested, 797 purchaser cannot be compelled to take equitable title, 795 nor title controverted in good faith by adverse claimant, 7U8 mere claim without color of title, no valid objection to title, 799 title in litigation is unmarketable, 801 but probability of litigation not always a valid objection, 802 (lefensihility of estate a sufficient objection, 808 Doubtful title Continued. title perfected by Statute of Limi- tations is marketable, 805 unless facts constituting the bar are in dispute, 808 possession must have been ad- verse, notorious, hostile and xminterrupted, 809 with means of establishing that fact if disputed in the future, 809 possession of purchaser is pro- longation of that of vendor, 810 purchaser may reject, when con- tract provides for " good title of record," 810 adverse possession of mere tres- passer insufficient, 811 time sufficient to bar disabilities must have elapsed, 811 burden on vendor to show prima- facie bar, 812 and on purchaser to show facts removing the bar, 813 conclusive presumption from lapse of time, 814 title as affected by other pre- sumptions, 816 title dependent on question of no- tice is unmarketable, 817 burden is on vendor to show title prima facie free from doubt, 818 after which burden shifts to pur- chaser to show doubts, 819 illustrations of foregoing principles, 819 general observations, 820 error and irregularities in ju- dicial proceedings, 821 sales of the estates of persons under disabilities, 826 want of parties to suits, 828 defective conveyances and ac- knowledgments, 833 imperfect registration, 833 construction of deeds, wills, etc., 839 competency of parties to deeds, 841 title as dependent on intestacy, 847 and on insolvency of intestate, 847, n. incumhrances which make title un- marketable, 849 admitted incumbrances, 851 casements, rights of way, building restrictions, etc., 851 INDEX 973 [REFERBNCES ABE TO PAGES] Doubtful title Continued. disputed incumbrances, 859 where doubts must be removed by parol evidence, 859 Us pendens, 860 existence and enforcibility of incumbrance, 861 duty to see to application of purchase money, 862 improbability that incum- brance will be enforced, 863 apparently unsatisfied incum- brances, 864 authority to enter satisfaction, 867 encroachments and deficiencies, 868 Dower. right of, no breach of covenant for seizin, 277 inchoate right of, is breach of cove- nant against incumbrances, 322 renders title unmarketable, 855 purchaser may have indemnity against, semble, 538 purchaser should inquire as to ex- istence of, 189 assignment of, is breach of war- ranty, 390 Easements. should be inquired for by pur- chaser's counsel, 189 no breach of covenant for seizin, 277 constitute breach of covenant against incumbrances, 319, 323 unless notorious and visible to purchaser, 327 conflict of authority on this point, 331, 332 in granted premises a breach of warranty, 407 measure of damages, 449 render title unmarketable, 851 Ejectment. notice of, to covenantor and re- quest to defend, 460 request to prosecute, 466 by vendor against vendee, when, 673 Election of remedies, by purchaser, 3, 13, 247 is conclusive, when made, 14 Eminent domain. exercise of, no breach of warranty, 383 Eminent domain Continued. purchaser charged with notice of proceedings, 186 as breach of covenant against in- cumbrances, 325, note 24 Encroachments. render title unmarketable, 868 Equitable estate. owner of, not entitled to benefit of covenants, 411 purchaser cannot be required to ac- cept, 798 Equities. doctrine of purchaser without no- tice applies only to, 186 no application where legal title is outstanding, 186 assignee of covenant not bound by, between original parties, 422 Equity. (See SPECIFIC PERFORMANCE, RESCISSION, REFORMATION, IN- JUNCTION.) equitable remedies in affirmance of contract, 519 in rescission of contract, 749 will not compel purchaser to take doubtful title, 767 equitable defenses allowed at law, 494 measure of damages in, 531 quid timet, jurisdiction of, 922 Error of law. title under judicial sale not af- fected by, 92 renders title doubtful when, 775, 821 Estate, to be considered in examination of title, 178, 181 after-acquired, enures to grantee, 561 (See ESTOPPEL.) purchaser not required to take equitable, 798 nor defeasible, 803 covenant of seizin is broken if, is defeasible, 275 Estate for life. measure of damages where grantee gets only an, 293, 448 outstanding, is breach of covenant against incumbrances, 319 1)74 INDEX [HEFIBINCES ARE TO PAGES] Estate for years. outstanding, is breach of covenant against incumbrances, 319 but not of covenant for seizin. 277 measure of damages on eviction from, 442 Estoppel. grantor estopped to assert after- acquired title, 561 as between lessor and lessee, 564 as between execution debtor and purchaser under execution, 564 whore grantor pays off lien as- sumed by grantee. 564 where title of grantor disseizing grantee, is cured by time, 564 estoppel binds heirs and devisees, 565 bufe only to the extent of assets received, 565 heirs not estopped by lineal or col- lateral warranties, 566 warrantor estopped from setting up resulting trust, 566 no estoppel where covenants have been extinguished, 566 no estoppel in cases of fraud by grantee, 567 after-acquired estate must be held in same right, 569 estoppels must be mutual, 570 mortgagor estopped by his war- ranty, 570 except in case of purchase-money mortgage, 571 mortgagor estopped as against a subsequent mortgagee, 572 void conveyance operates no estop- pel. 572 as where the deed i champer- toiiB. 572 or executed in fraud of creditors, 573 or imperfectly executed, 573 exceptions. 574 conveyances of public lands, 574 effect as actual transfer of after- acquired estate, 575 subsequent purchaser from grantor not affected, 576 contrarv rule in some of the States. 577 subsequent purchaser with notice is hound, 530 grantee mu*t accept after-acquired estate in lieu of damages, 581 Mr. Kawle'x dixnentlng view, f>82 but title must havo been acquired before action brought, 584 Estoppel Continued. what covenants will pass after- acquired estate, 5S5 any of the covenants unless special or limited, 586 circuity of action not avoided by estoppel, when, 587 mere quit claim or release will not operate an, 591 heir or remainderman conveying by quit claim not estopped, 594 general covenants will not oper- ate an estoppel, when, 595 when quit-claim will operate an estoppel, 597 Van Rensselaer v. Kearney, 597 effect of covenant of nonclaim by way of estoppel, 598 quit-claim estops grantor of pub- lic lands, when, 509 fiduciary and ministerial grant- ors not estopped, 599 execution debtor not estopped by sheriff's deed. 600 grantee not estopped to deny title of grantor, 600 but cannot set up adverse title against him, 600, 757 except where vendor attempts to convey public lands, 441, 601 or has been guilty of fraud re- specting the title. 601 or where the grantee has been evicted, 601 or where the contract has been rescinded, 601 resumC> of principles, 601 of married women, 588 of purchaser to deny vendor's title, 678 Eviction. ( See WABBANTT, COVENANT OF.) not indispensable to purchaser's action for damages, 17 not necessary to breach of covenant for seizin, 271 actual and constructive, 388, 390 no compulsory acceptance, of after- acquired title in case of, 581 detention of purchase money as de- pendent on, 657 where contract is executory. 657 executed, 480, 687, 022, 934 Evidence. parol. admissible to show true con- nideration, 436 INDEX 975 [REFERENCES ABE TO PAGES] Evidence Continued. of value of warranted premises consideration money is, 436 of paramount title in evictor, no- tice dispenses with, 461 parol, to show mistake in deed, 616 must be clear and positive, 616 to remove doubts as to title, 79*4 Examination of title. should not be left to incompetent person, 165 time allowed for, 171 classification of inquiries to 'be made, 176 expenses of, 233, 645 consequences of omission of, 254, 428 Exchange. covenants implied in, 372 measure of damages for breach of contract to, 232 Executed and executory contracts. what are, 3 as regards detention of purchase money, 480, -632. (See CON- TRACT. ) Execution. of deed by corporation or agent, -51 caveat emptor applies to sale un- der, 122. (See CAVEAT EMPTOB.) Executors and administrators. caveat emptor applies to sales by, 112. (See CAVEAT EMPTOB.) purchase of trust subject .by, is void, 110 should enter into special covenants only, 158 personally liable on general cove- nants, 16.0 liable on testator's covenant of warranty, 377 entitled to benefit of, when, 318 Expenses. of examining title may be re- covered, 233, 645 of perfecting the title, 439, 459 of defending the title, 234, 453, 459 Experts. opinion of, as to title not -admis- sible, 773, 819 Express contract. (See AGREEMENT, CONTRACT.) Extinguishment of covenants. by reconveyance to covenantor, 423 Fact. title as dependent on question of, 772, 776, 778 mistake of, as ground for reforma- tion of deed, 606 for rescission of executed con- tract, .943 Failure of title. (See DEFECTIVE TITLE and ANALYSIS, p. VII.) right to recover back or detain purchase money on. (See PUB- CHASE MONEY, DETENTION OF.) False statements. (See FRAUD, DE- CEIT.) Fees. of counsel for examining title, lia- bility of vendor for, 234, 645 in defending title, 234, 453, 459 Fee simple. estate sold presumed- to be a, 21 Fence. duty to maintain, is an incum- brance, 324 Fiduciary vendors. caveat emptor applies to sales by, 112. (See CAVEAT EMPTOR.) covenants for title by, 158 Forged instrument. lying in chain of title, 188 registration does not protect purchaser, 188 Fraud. as ground for collateral attack, 109 of vendor, effect on- purchaser's rights, 247 purchaser may elect to rescind or affirm, 248 fraud without injury gives no ac- tion, 249 fraud of agent binds principal, 250. (See AGENT.) what constitutes fraud respecting the title, 252 concealment of defects, 252 defects apparent of record, 254 willful or careless assertions, 255 existence of fraudulent intent, 263 statement of opinion, 264 facts showing fraud must be al- leged, 268 burden of proof is on purchaser, 269 fraud not merged in conveyance, 718 97G INDEX [REFERENCES ABE TO PAGES] Fraud Continued. of vendor bars right to perfect the title, 888 as affecting title under judicial or ministerial sale. (See CAVEAT EMPTOR. ) as ground for detaining or recov- ering back purchase money, 739, 919 right to rescind, waived when, 746 Fraudulent conveyance. title derived under sufficiency of, 780, 818 remote purchaser under, charged with notice, when, 179 will sustain transfer of after ac- quired title by estoppel, when, 572 Furthur assurance, Covenant of. form and effect, 476, 477 what constitutes breach, 477 effect by way of estoppel, 478 runs with the land, 478 measure of damages for -breach, 479 " Good and sufficient deed." effect of agreement to make, 34 Good right to convey. (See SEISIN.) " Grant, bargain and sell." covenants implied from these words', 273, 300, 370 Guardian. caveat emptor applies to sales by, 138 title as affected by acts or powers of, 826, 827, notes in judicial proceedings, 827, notes Heirs. liable on covenants of ancestor, 374 entitled to benefit of, when, 374 word, omitted from deed may be supplied, M 1, n. title as dependent on fact of in- heritance, 768, 795 conveyance of expectancy by, 595 Highway. no breach of covenant of seisin, 277 is breach of covenant against in- cumbrance, when, 327 conflict of authority on this point, 328, n. notice of, as affecting right to re- scind, 205 Husband and wife. (See MARRIED WOMEN.) Idem son'ans. cases of, as affecting title, 835, 836 Implied covenants. from words " grant, bargain and sell," 273, 300, 370 in a lease, 37-2 in an exchange, 372 in partition, 372 none from mere recitals in deed, 373 Improvements. purchaser not allowed damages for loss of, 230, 290, 428, 450 except) in cases of fraud, 429 and sometimes in equity, 763 and except in certain States, 433 Incapacity. of parties, title as dependent on, 177, 188, &41 Incumbrance. ( See INCUMBRANCE, COVENANT AGAINST, PURCHASE MONEY, DETENTION OF.) operates no change in title, 2 definition, 310 what constitutes, 308, 852 to be searched for in examining title, 182 concealment of, is fraud", 252, 254" as ground for detention of purchase money, 648 where contract is executory, 648 where contract is executed, 480, 508 cannot be verbally except ed from covenants, 302 renders title unmarketable, 651 may be discharged out of purchase money, 552 when subject to compensation or indemnity, 532, 538, 909, 913 vendor may be compelled to re- move, 524, 659 right of vendor to remove, 524 subrogation of pucha*er to benefit of, 555 conveyance "subject to," 305 assumption of by purchaser, 653 Incumbrance, Covenant against, form and effect, 299 implied from certain words, 300 distinguished from covenant to dis- charge incumbrance, 301 INDEX 977 [REFERENCES ABE TO PAGES] Incumbrance, Covenant against Continued. restrictions and exceptions, 302 must be expressed in conveyance, 303 cannot be shown by parol, 303 contrary rule in Indiana, 304, n. assumption of mortgage by grantee, 305 effect of conveyance " subject to " mortgage, 305 what constitutes breach of, 30S mere existence of incumbrance operates breach, 309 definition of term " incumbrance," 310 pecuniary charges or liens, 310 notice of same immaterial, 311 when taxes constitute breach, 312 outstanding estate in the prem- ises, 319 easements or physical incum- brances, 323 building restrictions, 323 party walls, 326 notice of easement as affecting breach, 327 conflict of decision on this point, 330 runs with land for benefit of as- signee, 335 contrary rule in some States, 336 measure of damages for breach of, 339 nominal, where no actual loss, 339 judgment a bar to future re- covery, 341, 350 where grantee discharges incum- brance, 342 amount paid must have been reasonable, 344 covenantee not bound to redeem, 345 damages- cannot exceed purchase money and interest, 346 damages where incumbrance is permanent, 350 of lessee against lessor, 349 pleadings must describe incum- brance, 352 discharge of same must be al- leged, 353 burden of proof on plaintiff, 353 detention of purchase money on breach of covenant, 508 Indemnity. as general rule purchaser cannot demand, 537 Indemnity Continued, nor be required to accept, 915 against inchoate right of dower, 538 Infant. title as dependent on rights of, 825, 826, notes, infancy of grantor in chain of title, 188 Inheritance. words of, in deed, supplied, 611, n. title, as dependent on question of, 189, 795 Injunction against collection of "pur- chase money, where the contract is executorv. 658 when the contract has been exe- cuted, 917 general observations, 917 where the grantor was guilty of fraud, 919 injunction granted though no breach of covenants has oc- curred, 919 so, also, in case of mistake, 919 grantor cannot be forced to action for damages, 920 grantee setting up fraud as de- fense to action for purchase money cannot have injunc- tion, 920 want of opportunity to defend at law, 921 injunction denied, when de- fense may be made at law, 921 or might have been so made, 921 but granted if defense pre- vented by fraud, accident or mistake, 921 and where no opportunity for defense, 921 as in case of enforcement of deed of trust, 922 or in strict foreclosure of mortgage, 922 and in case of after-discov- ered facts, 922, n. remedy on covenants must be unavailing, 922 where grantor is insolvent or a non-resident, granted, 922 though there has been no breach of covenants, 922 this upon the principle of quid timet, 922 978 INHKX [REFERENCES ARE TO PAGES] Injunction against collection of pur- chase money Continued, but suit must have been prosecuted or threatened by adverse claimant, 923 except in certain of the States, 934 insolvency must be alleged in the bill, 924 transfer of negotiable securi- ties, will be enjoined, 926 no perpetual injunction where purchaser must accept com- pensation, 926 bill must allege clear, out- standing title, 926 and that claimant is prosecut- ing or threatening suit, 926 mere doubts as to the title in- sufficient, 926 complainant must confess judgment at law. when, 927 injunction granted against transferee of note, 927 unless puri-ha.-er for value, without notice, etc., 927 if injunction perpetual, plain- tiff should reconvey. 928 where estate is incumbered. 92S unimportance of non-residence or insolvency of grantor, 928 grante,p cannot pay off lien and set it up against grantor, 929 incumbrance no ground for re- scission, !':2!> injunction against foreclosure of purchase-money mortgage denied. !'L H except in case of prior incum- branec. f30 denied where no covenants for title, 931 presumptions against grantee in such oaso*. fl3I temporary and perpetual injunc- tion,' 932 effect of perpetual injunction, damages on dissolution of in- junction. resume-, 933 where no present right to re- cover substantial damages. 034 absolnt.- want of title as ground of injunction. i'.'H without di'iiry <.r iii-.h i-n.-v of grantor, Injunction against collection of pur- chase money Continued. or to threats or prosecution of suit bv adverse claim- ant, 934 or to reconveyance by gran- tee, 934 this doctrine enforced in Va. and W. Va., not recognized elsewhere, 935 rested upon ground of in- adequacy of reined v at law, 935 and as protection to pur- casher under a trust, !'.':7 but complaint must show a clear outstanding title, 936 mere doubts as to title in- sufficient, 936 Insolvency. of covenantor as ground for de- taining purchase money, 9^2 Installments. tender of deed where purchase money payable in, 218 Interest. as element of damages, 234, 450, 531 set off against rents and profits, when, 234 on purchase money while title is being perfected, 900 on purchaser's deposit, 645 Interlineations. to be noted in examining title, 179 Joint tenants. should covenant severally, l.">7 Judgment where void, title under. 130 subrogation to benefit of, 13S. r>"> should be noted in examining title. 183 no breach of covenant for pcisin. 277 is breach of covenant against in- cumbrances, 310 of eviction without di-p"--- --ion no breach of warranty, 390 several separate, may be nit- on warranty, when. 412 when conclusive evidence o f para- mount title. 4fil apparently un-ati-licd render title unmarketable, 864 INDEX 979 [REFERENCES ARE TO PAGES] Judgment Continued. must be confessed on application for injunction, 927 Judicial sales. ( See CAVEAT EMPTOR.) caveat emptor applies to, 80 title as dependent on validity of, 92, 821, 823, n., 825, n. not affected by reversal of de- cree, 94 purchaser at, entitled to benefit of covenants, 415 Jurisdiction. of officer taking certificate of ac- knowledgment, 60 want of, exposes judgment to col- lateral attack, 97 Jury. fact of notice to defend ejectment, question for, 468 Laches. in objecting to title is waiver of objection, 199 exceptions to this rule, 200 in suing for reformation of deed, 617 mistakes resulting from, not re- lievable, 614, 751 of vendor in perfecting title, bars his right, 891, 894 Land. will not pass under word " assets," 55 warranty does not extend to quan- tity of, 363 value of, at time of sale is meas- ure of damages, 225, 424 Landlord and tenant. (See LEASE.) Lease. lessor must covenant generally, 157 to be noted in examination of title, 182 outstanding, is no breach of cove- nant of seisin, 277 but is breach of covenant against incumbrances, 319 covenant implied in lease, 371 tortious disturbances by lessor, 381 title of lessor not usually exam- ined, 157, 443, 773 damages on eviction of lessee, 442 lessee may recover back rent, when, 444 Legal estate. vendor need not have, but must obtain, 523, 874, 890 Legal process. not necessary to eviction of cove- nantee, 388 Lien, should be noted in examination of title, 183, 184 is breach of covenant against in- cumbrance, 310 of purchaser on failure of title, 680 does not exist if vendor is solv- ent, 681 nor as against purchaser with- out notice, 682 Life estate. (See ESTATE FOB LIFE.) Limitations, Statute of. begins to run on covenant of seisin, when, 287 on covenant of warranty, when, 387 title under, is marketable, 805. (See DOUBTFUL TITLE.) Liquidated damages. in excess of purchase money may be recovered, 244 but amount must be reasonable, 244 and not a penalty or forfeiture, 244 Lis pendens. should be noted in examining title, 183, 184 not an incumbrance, when, 309 renders title unmarketable, when, 860 Loss of bargain. (See DAMAGES, MEASURE OF.) Lots. failure of title to part of several, 911 Marketable title. (See DOUBTFUL TITLE.) original technical meaning of this expression, 768 modern use of this expression, 768 doctrine of, no longer restricted to equity, 780 purchaser may demand, 767 question of, is for the court, 773, 819 opinions of counsel on question, not admissible, 773 classification of cases of unmarket- able. 774, 819 title by adverse possession, 805 .)SO INDEX [RKFBRENCES ABE TO PAGES] Married women. (Sw DOWER.) right to require covenants from, 156 bound by covenants, 373 estopped by their covenants in some States, 589 acknowledgment of deed. (See ACKNOWLEDGMENT. ) when deeds of, will be reformed, 624 coverture to be noted in examin- ing title, 183 Mechanic's lien. to be noted in examination of title, 183 Merger. of executory contract in deed, 489, 714 of verbal stipulations as to title in deed, 489. 714 cases in which merger does not occur collateral stipulations of which deed not necessarily a performance, 489 where deed is void, 711 rule in Pennsylvania, 716 rule in Indiana, 304, n. fraud not merged in deed, 718 Mesne profits. (See INTEREST.) as set off against purchaser's de- mand for interest, 234, 4f>0 purchaser not liable to vendor for, when, 234, 759 Metes and bounds. not indispensable to description in deed, 54 where uncertain or impossible, 55 warranty does not extend to, 363 Ministerial vendors. tut nit I'm p tor applies to sales by, 79, 121, 122, 136 general covenants not required from, 162 Misnomer. aa objection to sufficiency of deed, 47 M objection to sufficiency of cer- tificate of acknowledgment, 63 title as dependent on, 835, n. Misrepresentations. (See FRAUD, DE- CEIT.) Mistake. as ground for reformation of deed. (See REFORMATION.) Mistake Continued, rescission of executed contract, 938, 943 mistake of fact, 943 mistake as to fact on -which title depends. 944 as where estate has been di- vested by happening of some event of which the parties are ignorant, 944 and where subject-matter of contract has no existence, 945 but mere ignorance of out- standing title in a stranger no ground for relief, 946 except when grantee has pur- chased his own estate, igno- rant of his title, 948 mistake cannot be availed of at law, 949 mistake as to existence of the premises, 949 where deed does not convey the lands purchased, 949 grantee must reconvey the premises, 950 mistake must not have arisen from negligence, 951 mistake must have been ma- terial, 952 mistakes as to quantity, 952 mistake of law, 953 in many cases no ground for relief* 953 but relief granted in some cases, 954 distinction between ignorance of, and mistake of law, 956 " ignorance of law does not excuse " applies only to tin* general public laws, 959 erroneous construction of de- vise or grant, 960 where true construction of the law is doubtful, 960 misrepresentation of law by vendor. 061 mistake must be mutual, 961 Money had and received. action for, where title has failed, 639 expenses of examining title not recoverable in, 645 Mortgage. (Sec INCUMBRAXCE. PfR- CHA.HK MONEY.) general covenants must be inserted in. 157 to be noted in examining title, 183 INDEX 981 [REFERENCES ARE TO PAGES] Mortgage Continued, in form an absolute deed, pur- chaser without notice of, 187 .operates no breach of covenant of seisin, 277 is breach of covenant against in- eumbrances, 310 excepted by parol from cove- nants, 303 effect of purchase " subject to," 305 eviction under, is breach of cove- nant of warranty, 404 mortgagees entitled to benefit of covenant of warranty, 419 for purchase money, foreclosure of, where title has failed, 496, 929 mortgagor estopped by covenants in, 570 unless given for purchase money, 420, 571 detention of purchase money where, exists, 508, 648 renders title unmarketable, when, 849, 859 Municipal corporation, cannot warrant title, 378 Negligence. (See LACHES.) mistake resulting from, no ground for reformation, 614 nor for rescission, 951 Nominal damages. (See DAMAGES, MEASURE OF.) on breach of covenant for seisin, when, 292, 293 against incumbrance, 339 judgment for, bars second action on same covenant, 341 but not on other covenants, 292 Non-claim, Covenant of. equivalent to covenant of special warranty, 359 will operate an estoppel in some States, 598 Non-residence. as ground for purchaser's lien on the premises, 681 as ground for enjoining collection of purchase money, 922 title as dependent on proceedings against non-resident, 824, n. Notice. of incumbrance, when immaterial to action for breach of cove- nant, 311 when material in case of phys- ical incumbrance, 327 Notice Continued, of defect does not affect liability on warranty, 361 as affecting right to rescind con- tract, 203, 492, 652 rule in Texas and Pennsylvania, 512, 724, 726 to covenantor of ejectment and re- quest to defend, 460. (See WARRANTY.) not indispensable to recovery on warranty, 468 necessary to affect assignee with equities, 422 purchaser of after acquired estate from covenantor without, pro- tected, 576. (See ESTOPPEL.) deed recorded prior to inception of grantor's title, not, 577 of intent to rescind, 627 time made material by, 897 record as notice to purchaser, 254, 726 Objections, to title, waiver of, (See WAIVER OF OBJECTIONS.) summary of different sources of, 173 to deed, should be seasonably made, 77 and to abstract of title, 172 Officer, of corporation, should execute deed, how, 51 how acknowledge, 64 caveat emptor applies to sales by, 122, 136 covenants' cannot be required from, 162 taking certificate of acknowledg- ment. ( See ACKNOWLEDG- MENT.) title as dependent on powers of, 834, n. Omissions. (See MISTAKE.) from deed as ground for reforma- tion, 607 Opinion. mere expression of, as to title, no evidence of fraud, 264 of conveyancing counsel inadmis- sible on question of title, 733, 819 Orphan's court sales. (See CAVEAT EMPTOR.) 982 INDEX [REFEUEXCKS ABE TO PAGES] Paramount title. in a stranger, no breach of war- ranty, 385 must be hostilely asserted to con- stitute breach of warranty, 394, 405 notice to defend ejectment dis- penses with proof of, in evictor, 460 need not be set forth with par- ticularity in pleading, 472 but eviction under must be averred, 472 outstanding, as ground for detain- ing purchase money, 658, 687, 917. (See PURCHASE MONEY OF LANDS.) purchaser may buy in, 549 but cannot use to defeat vendor's title. 600 exception, 601 Parol agreements. (See MERGER.) as to removal or assumption of in- cumbrance, 302 as to title, merged in deed, when, 4S9, 714 Partial failure of consideration, as ground for detaining purchase money, 500 Particulars of sale. usually prepared and circulated before day of sale, 29 should state defects of title, 3*2 Parties. names of, must be inserted in deed, 46 competency of, to be noted in ex- amining title, 177, 181, 18S bound and benefited by covenant of warranty, 373 to suit for rescission, 765 title as dependent on want of, to suit, 828 competency of, to deed, 841 Partition. covenants implied in, when, 372 title as dependent on proceedings in, S22, 824, n. Partners. ( See Jorxr TEXANTS, TEN- ANTS IN COMMON how should execute deed, 51 how deed executed to, 48 Party wall. is a breach of covenant against in- cumbrances, when, 326 when not. 326 renders title unmarketable, when, 857 Patent defects. vendor not bound to call attention to, 256 Patents of land. lying in chain of vendor's title. 180 purchaser charged with notice of defect in, when, ISO Payment. (See PURCHASE DETENTION OF.) of purchase money is waiver of ob- jection to title, when, 201 as condition precedent to action for damages, 15 suit for specific performance, 526 Perpetuities. to be noted in examining title, 1S1 Personal expenses. when allowed as damages on breach of warranty, 459 Personal representatives. (See Ex- ECUTOBS AND ADMINISTRATORS.) Pew assessments. when no breach of covenant against incumbrances, 313, n. Pleadings. (See the several coven- ants.) Possession. taking, when waiver of objection to title, 196 inability to get, is a constructive evicti'on, 390 of stranger is notice to purchaser, 188 must be restored to vendor, when, 671 vendor may recover, when. 673 title by adverse, is marketable, 805 detention of purchase money where, undisturbed, 687 Possibility. bare, when no objection to title, 770, 819, n., 826, n. Powers. of parties to be noted in examin- ing title, 51, 177, 181. 1S8 defective execution of statutory. not aided in equity, 618 title as dependent on. and compe- tency of parties, 841, 843, n. Power of attorney. validity of deed executed under, 50 INDEX [REFERENCES ARE TO PAGES] Power of attorney Continued. to execute gives power to acknowl- edge deed, 64 title, as dependent upon exercise of, 84-4, n. entry of satisfaction under, 867 Presumptions. every title dependent to some ex- tent on, 817 from lapse of time, title as de- pendent upon, 814 of death, title as dependent upon, 815 of satisfaction of incumbrance, 866 Principal. (See AGENT, ATTORNEY.) is affected by agent's fraud, 250 but not liable in damages, 250 Privity of estate. essential to doctrine of estoppel, 580 Privy examination of married women. (See ACKNOWLEDGMENT.) Public lands. estoppel of grantor, 574, 599 entry by vendee of, 440 Public road. (See HIGHWAY.) Purchase. of paramount title is constructive eviction, when, 401 Purchase-money mortgage. failure of title no ground for en- joining foreclosure of, 929 Purchase money of lands. detention of, on failure of title, 632 general principles, 632 where the contract is executory, 634, 636 general rule that purchase money may be detained, 636 forfeiture of deposit by pur- chaser, 638 exceptions to and qualifica- tions of general rule, 642 what objections may be made to title, 644, 767 expenses of examining the title, 645 burden of proof lies on pur- chaser, 645 right to detain, where estate is incumbered, 648 taxes and assessments, 650 application 'of purchase money to incumbrances, 650 Purchase money of lands Cont'd. buying with knowledge of de- fect or incumbrance, 652 chancing bargains, 654 burden on vendor to show as- sumption of risk, 855 effect of accepting title bond, 656 consideration of sealed instru- ment may be inquired into, 658 injunction against collection of purchase money, 658 in cases of fraud, 660 not necessarily a disaffirm- ance of contract, 660 bill must aver tender of pur- chase money, 661 effect of transfer of purchase- money note, 662 refusal of vendor to convey for want of title, 662 purchaser must show tender of purchase money, 210, 663 , where purchase money is pay- able in installments, 665 payment of purchase money not a condition precedent, when, 667 purchaser must show offer to rescind, 667 pleadings and burden of proof, 668 purchaser must restore prem- ises to vendor, 670 fact that he has made improvements immaterial, 673 vendor must be placed in statu quo, 674 restoration a condition pre- cedent to rescission, 676 rule in Pennsylvania, 677 restoration in cases of fraud, 678 when purchaser need not re- store premises, 680 where vendor refuses to receive them, 680 where detention necessary for purchaser's indem- nity, 681 purchaser's lien for pur- chase money, 681 where title fails to part only, 683 where the contract is void, 685 where covenants for title have been broken, 480 general rule, 481 INDEX [REFERENCES ABE TO PAGES] Purchase money of lands Cont'd. cannot detain, where no breach of covenants, 487 exception to this rule, 488 merger of prior agreements, 489 purchase with knowledge of defect, 492 recoupment. 493 recoupment in foreclosure suit, 496 partial failure of considera- tion, 500 assumpsit to try title, 503 what constitutes eviction, 504 purchase of outstanding title, 504 discharge of incumbrances, 508 rule in Texas, 511 rule in South Carolina, 514 pleadings. 517 resume, 518 where covenant of seisin has been brefken, 687 semblc that purchaser may de- tain in some of the States, 687 though he ha^s not been evicted, 689 provided there is a moral cer- tainty of eviction, 702 and provided he reconveys the premises. 701 breach of this covenant as to part of the premises, 704 where covenants for title have not boon broken. 481 general rule is that purchase money cannot be detained, 481 ' except in cases of fraud. 799 and whore equity exercises a quia timct jurisdiction, 922 where there are no covenants for title. 705 general rule is that purchaser cannot dvtain, 705 reasons for this rule, 707 want of title is not of itself a mistake. 709 purchaser should be subro- gated to benefit of incum- brance, 710 exceptions to general rule above. 711 where the deed w absolutely void, 711 merger of all prior agree- ments respecting the title, 714 what agreements not merged in conveyance, 716 Purchase money of lands Cont'd. fraud not merged in convey- ance, 718 rule in Pennsylvania as to de- tention of purchase money, 722 absence of covenants for title immaterial. 722 unless purchaser had notice of defective title, 722, 724 constructive notice insuf- ficient, 726 adverse title must be clear and undoubted. 725 incumbrunce must equal un- paid purchase money. 7'26 purchaser's risk of the title, when presumed, 727 no presumption from notice of pecuniary incumbrance, when, 728 presumption where deed con- tains covenants for title, 728 no relief unless covenants have been broken, 729 no relief by way of recover- ing back the purchase money, 730 Pennsylvania rule does not apply to sheriff's sales, 732 ' nor to judicial or ministerial sales, 732 detention or restitution in cases pf fraud, 739 purchaser may always recover back or detain, in cases' of fraud, 739 whether contract is executory or has been executed, 739 whether there are or are not covenants for title, 739, 742 whether covenants have or have not been broken. 739, 742 purchaser electing to rescind must notify vendor, 739 purchaser may affirm instead of rescind contract, 740 concurrent remedies 4n caM of fraud, 7.41 may be availed of. aa defense at law, 742 what amounts- to fraud by ven- dor, 745 waiver in cases of fraud, 745 by acceptance of conveyance with knowledge of fraud, 746 by laches and delay, 745 INDEX 985 [REFERENCES ARE TO PAGES] Purchase money of lands Cont'd. purchaser does not -waive dam- ages by affirming contract, 747 may be recovered back on failure of title, when, 632 where contract is executory, 632. (See above, DETENTION OF PURCHASE MONEY, and 632.) general rule is that purchase money may be recovered back, 63'2 where vendor wrongfully con- veys away the premises, 646 where vendor tenders insuf- ficient deed, 647 purchaser at judicial sale can- not recover back, 647 where title is unmarketable, 647, 767. (See DOUBTFUL TITLE.) fact that contract was within Statute of frauds immate- rial, 647 cannot recover more than pur- chase money, interest and expenses, 648 where contract has been exe- cuted cannot be recovered back eo nomine, 734 purchaser's remedy is on the covenants, 734 cannot recover on contempo- raneous- parol agreement to refund, 737 nor maintain bill in equity against vendor, 702, 737 rule does not apply in case of mistake, 73.7 nor where deed is absolutely inoperative, 737 title as dependent on duty to see to application of, 662 Purchaser. remedies of, on failure of title, 8 right of purchaser to action for breach of contract, 11 must have paid purchase money in full, 15 in possession may sue for dam- ages, 17 right to require a title free from defects, -20, 767 may reject conveyance tendered, when, 42. entitled to what covenants for title, 150, 151 bound by maxim caveat emptor, when, 80 may require abstract of title, 163 Purchaser Continued, entitled to time for examination of title, 171 should make what inquiries in pais, 186 what acts of, amount to waiver of objections to title, 191 must tender purchase money and demand deed, when, 210 may maintain action on the case for deceit, 247 may surrender possession to owner of better title, 394 may detain purchase money on failure "of title where the 'contract is executory 626, 632-, 74*9 where covenant of warranty ha* been broken, 481 on breach of covenant of seisin, semble, 687. in cases of fraud, 739/938 cannot detain purchase money on failure of title where no covenants for title, 705 except in certain States, 722, 732 where objections 1 to title have been waived, 190 may recover back purchase money on failure of title where the contract is executory, 632 but not after contract has been executed, 734 his remedy is on the covenants if any, 734 entitled to specific performance of the contract, when, 519 and to damag.es in equity, when, 528 may elect to take the title though defective, 532 or with compensation for defects, 532 has a right to perfect the title, 549 estopped to deny title of vendor, when, 600, 6,78 subrogated to benefit of lien, 555 may compel removal of incum- fcrances, when, 559 may compel transfer of after-ac- quired title, 560 entitled to reformation of convey- ance, when, 603 may rescind contract on failure of title, when-, 626, 749 by notice -without suit, 626 by proceedings at law or in equity, 632, 749 I'M; INDEX IOEFERENCKS AKK TO PAGES] Purchaser Continued, must restore premises to vendor on rescission, 670 but has lien for purchase money, when, 6SO cannot be required to accept doubt- ful title, 767 may require record title, when, 788, 810 cannot be compelled to buy a law-suit, SOI compelled to take title by ad- verse possession, when, 805 must take title with compensation for defects, when, 907 may enjoin collection of purchase money, when, 658, 917 relieved where subject of contract does not exist, 944 and where lie buys his own es- tate, 948 and in other cases of mistake, 943, 954 and wherever the vendor is guilty of fraud, 919, 938 duty to see to application of pur- chase money, 862 estopped to 'deny vendor's title, 600, 678 must account for rents and profits, 675 Purchaser's defenses. (See PCBCHASE MONEY OF LANDS.) to action for breach of contract, 18 to suit for specific performance, 752 Purchaser without notice. not protected where vendor had no actual legal title, 186 is protected against equities in third persons. 186 of equities between covenantor and covenantee, 422 of after -acquired estate protected, 576 record as notice to, 255, 726 Qualified covenants. express agreement will restrict covenant of warranty, 365 general covenants not restrained unless intent clearly appears, 365 subsequent limited covenant will not restrain prior covenant, when, 365 restrictive words in first covenant extend to all, when, 365 Qualified covenants Continued. general covenant does not enlarge subsequent limited covenant, 366 restrictive words in one will not control other covenants, when, 366 equity will reform deed by insert- ing restriction or qualification, 368 Quantity. covenant of warranty does not ex- tend to, 363 purchaser must accept title with compensation for loss of small, of estate, when, 907 Quia timet. equity will exercise this jurisdic- tion on failure of title, when, 922 Quiet enjoyment, Covenant for. (See WARRANTY, COVENANT OF.) same in effect as covenant of war- ranty, 474 what constitutes breach, 475 implied in leases, 371 tortious disturbance by landlord is breach of, 382 Quit claim. (See COVENANTS FOR TITLE.) what is, 148 agreement to convey by, 39 purchaser accepting cannot detain purchase money, 707 except in case of fraud, 739 passes benefit of covenants for title, 414 but will not transfer after-ac- quired title, when, 591, 597 Railway. when existence of, is breach of covenant against incumbrances, 330 Rebutter. operation of covenants for title by way of, 582 Recitals. in deed put purchaser upon no- tice, 178 no covenants implied from mere, 373 sometimes operate as an estoppel, 373 Recognizance. to DO noted in examining title. 1K4 INDEX 987 [REFERENCES ARE TO PAGES] Reconveyance. on detention of purchase money where 'breach of covenant of seisin, 692, 701 on rescission of executed contract, 939 Record. defects of title apparent from pub- lic, 182 purchaser charged with notice from public, when, 254, 726 when purchaser may require good title of, 24, 788, '810 cannot be collaterally attacked on question of title, when, 92 title as dependent on sufficiency of, 833, 834, n. in ejectment made evidence against vendor by notice, 460 Recording acts. notice, as between vendor and pur- chaser, by virtue of, 255 record of deed prior to inception of grantor's title, 576 Recoupment. distinguished from set-off, 495 detention of purchase money by way of, 493 on foreclosure of purchase-money mortgage, 496 Reference of title to master in chan- cery. title will be referred, when, 900 when, is matter of right, 901 denied where purchase was a chancing ibargain, 901 and where the court is satisfied about the title, 902 at what stage of proceedings refer- ence is directed, 902 procedure on, 902 costs of, how decreed, 903 Reformation of the conveyance. by insertion of covenants for title, 368 is a familiar ground of equitable jurisdiction, 603 is a species of specific perform- ance, 604 plaintiff should first have ten- dered corrected deed, 604 unless defendant has refused or was incompetent to execute same, 604 and except in suit to reform and foreclose mortgage, 604 defendant refusing to correct must pay costs, 605 Reformation of the conveyance Continued. bill must contain prayer for refor- mation, 605 but held that prayer for " other and further relief " sufficient, 605 reformation of deed does not con- travene Statute of Frauds, 605 equities of both parties will be en- forced, 605 adverse possession by stranger no objection to, 606 purchaser under void sheriff's sale cannot sue for reformation, 606 how mistakes in recording deed corrected, 606 mistake of fact in insertion or omission relievable, 606 contents as intended but founded in mistake of fact, 606 mistake in wills cannot foe cor- rected, 608 patent ambiguity in a deed may be corrected, 608 reservations will not be inserted unless omitted through fraud or mistake, 608 equity will insert omitted cove- nants for title, 608 unless purchaser knew character of the deed, 608 ignorance of defective title no ground for inserting warranty, 608 mistake of law no ground for ref- ormation, 609 contrary view in some cases, 610 where deed fails to express in- tention of parties, 610 distinction between reformation and rescission, 610 court merely enforces original contract, '610 what is mistake of fact, and what mistake of law, 610 mistake must have been mutual, 612 unless defendant was guilty of fraud, 614 though the fraud might have been discovered, 614 mere ignorance of contents of deed no ground for reforma- tion, 614 pleadings must allege mutuality of mistake, 613 mistake must not have resulted from negligence, 614 exceptions to this rule, 615 nature and degree of evidence re- quired, 615 988 INDEX [REFERENCES ARE TO PAGES] Reformation of the conveyance Continued. no difficulty in case of patent mistake, 615 parol evidence admissible to show mistake, 616 but must be clear and positive, 616 burden of proof is on complain- ant, 616 inconsistence of deed with prior contract not necessarily a mis- take, 616 laches in application for relief, 617 not imputable until discovery of mistake, 617 nor where grantor has refused to correct, 617 defective execution of statutory power will not be aided, 618 except in mere matters of de- scription, 618 right not confined to immediate parties, 618 but complainant must be party or privy to the deed, 618 remote grantee entitled, 618 denied purchaser at sheriff's sale, 619 denied grantee owing part of purchase money, 01'.' grantor entitled to reformation, 619 but deed is always construed strongly against -him, tii'o and denied in case of his neg- ligence, 620 and where he insists upon payment of the purchase money. may be decreed again-t heirs, de- vi-ees, gnMii << and others, 120 persons in interest must be made partic*. ii_'l when grantor not a necessary party, 621 may be decree 1 iii favor of and against .-ul>-c<|iient pur- chasers and creditors, ti.'l but not as ii without notice possession sufficient as notice, tat mistake on face of deed ia lint: bill miiHt aver notice to de- fendant, 623 piirrlniHcr must have paid value, 623 Reformation of the conveyance Continued. volunteer not entitled to refor- mation as against grantor, 624 but is entitled as against other persons, 624 granted in favor of mortgagee of volunteer, i;-J4 examples of sufficient consid- eration, (>- 1 married- woman's deed will not be reformed, 624 except in matters of descrip- tion, 625 and except where disabilities fcave been removed, 023 Registration of deeds. (See RECORD AND KECORDIXO ACTS.) (See RECORDING Registry acts. ACTS.) Release. (See QUIT CLAIM.) does not affect subsequent assignee of covenants, 414 will pass benefit of covenants for title, 414 will not operate estoppel or rebut- ter, 591 Remedies. of the parties on failure of title. (See Analysis, p. VII.) Rents and profits. (See PROMTS.) purchaser must account for, 675 Rescission. of executory contract, 4, 740 by proceedings at law. by net of the parties t'-JiJ rescission is abrogation of the contra. !. trjil ways in \\liich resci.-Mon may iir. ti'J!> may :iK ur by con- nl of parties. C29 consent may be implied from acquiescence. (ij! party rescinding should give notice of intent. 629 each party must re-tore \\h;it he has received. HO forfeiture of puicha (lepo-ii in -inh eases, 628 though contract proviiN siii-h forfeiture, i liv act of one party only, 628 INDEX 989 [REFERENCES ABE TO PAGES] Rescission Continued. but one party cannot deprive the other of right to per- form, 630 may sometimes treat the contract as rescinded 630 rescission by consent not with- in Statute of Frauds, 630 by proceedings in equity, 749 suit for rescission proper, 749 may be maintained where title has failed, 749 not dependent on right to maintain action for dam- ages, 750 grounds of equitable juris- diction, 751 fraud always ground for, 751 reduction of agreement to writing, immaterial, 75 ! rescission where vendor had no power to sell, 751 when purchaser estopped to rescind, 751 defenses to vendor's suit for specific performance, 752 doubtful or unmarketable title, 753 unless sale was of such title or interest as vendor had, 753 vendor must show title prima facie, 753 purchaser must then show defects, 754 objection to title may be made after answer, 754 vendor resting his title on particular [ground can- not shift after suit be- gun, 754 vendor on rescission must be placed in statu quo, 755 purchaser must restore premises to vendor, 755 denied, where premises cannot be restored in same condition as re- ceived, 756 unless injury can be abated from purchase money, 756 substantial compliance with rule sufficient, 758 vendor's remedy when purchaser refuses to re- store, 757 contract must be rescinded in toto or not at all, 757 Rescission Continued. vendor may recover prem- ises in ejectment, 757 purchaser estopped to deny his title, 757 restoration as condition precedent to rescission. 758 cases in which purchaser may refuse to restore the premises, 758 purchaser entitled to inter- est on purchase money, when, 759 rents and profits usually set off against interest, 759 unless purchaser liable to true owner for mesne profits, 760 when not liable to vendor for mesne profits, 759, 760 in equity purchaser al- lowed for improvements, 762 unless made with notice of defect, 763 purchaser's pleadings must show how title is defec- tive, 764 who necessary parties to suit for rescission, 765 of executed contract, 938 generally denied except in cases of fraud and mistake, 938 (See MISTAKE, and 943.) (See PURCHASE MOITEY, and 687.) fraud always a ground for re- scission, 940 fraud not merged in warranty, 940 decree must provide for recon- veyance, 939 purchaser must reconvey or offer to reconvey, 941 except where vendor has no color of title, 941 or has refused to accept a recon- veyance, 941 purchaser must act promptly on discovery of fraud, 942 damages allowed purchaser on rescission when, 5*28, 942 Reservation. unauthorized, in deed, 76 of vendor's lien to be noted in ex- amining title, 179 990 INDEX [REFERENCES ARE TO PAGES] Reservation Continued. of minerals is an incumbrance, 853 other reservations, 853 by parol, inadmissible in evidence, 808 Restoration of premises to vendor, necessary on rescission of contract, 670, 755 though purchaser has made im- provements, 673 vendor must be placed in statu quo, 674, 755 as condition precedent to rescis- sion, 676 rule in Pennsylvania, 677 in cases of fraud, 678 when rule does not apply, 680 where vendor refuses to receive them, 680 where detention necessary for purchaser's indemnity, 681 purchaser's lien for purchase money paid, 681 where title fails to part only, 683 where the contract is void, 685 Restrictive covenants, as objection to deed, 76 as incumbrances, 323 make title unmarketable, 853 Resulting trust. purchaser without notice not af- fected by, 187 Right of way. to be inquired for by purchaser, 1 Otr when a breach of covenant against incumbrances, 323 notice of, to purchaser at time of covenant, 327 is not breach of covenant of seisin, 277 renders title unmarketable, 851 loss of or eviction from, a breach of warrant}', 407 through warranted promises, a breach of warranty, 408 "Right, Title and Interest." (See QUIT CLAIM.) effect of agreement to sell, 40 conveyance of, passes after-ac- quired estate when, 597 Right to convey, Covenant for. (See COVENANT OF SEISIN ) Roads. (See HIGHWAYS.) Root of title. (See ABSTRACT OF TITLE.) what is, 165 Running with the land. (See the several covenants for title.) Sale. (See JUDICIAL SALE, CAVEAT EMPTOB.) implies indefeasible title in vendor, 20 of fee simple implied, 21 by personal representatives, 112 sheriffs and others, 122, 136 Satisfaction of lien. by surety should be noted in ex- amining title, 183 of incumbrance, when presumed, 866 Scroll. in place of a seal sufficient, 57 Seal. necessity for, 57 scroll sufficient, 57 must 'be recognized as seal, when, 58 to be noted in examining title, 157 does not exclude inquiry into con- sideration, 658 Seisin, Covenant for. form and effect of, 270 importance of, 271 requires an indefeasible estate, 275 in some States satisfied by bare possession, 272 implied from certain words of grant. 273 right of action for breach is per- sonal, 274 what constitutes breach, 274 mere incumhranre docs not. -J77 not affected by champertous deed, 276 does not run with land after breach, 270. 280 contrary rule in some States, 283 possession must have passed with deed, 287 when Statute of Limitations begin to run, 287 whore action munt be brought, 288 measure of dnmngc for breach. 2S9 nominal, if no eviction, 292 loss of part of estate only, J burden of proof in action for breach, 294 pleadings in action for breach, 297 INDEX 991 [REFERENCES ARK TO PAGES] Seisin, Covenant for Continued, detention of purchase money in case of breach, 6S7. (See PUB- CHASE MONEY OF LANDS.) Set-off. (See COUNTERCLAIM, RE- COUPMENT.) Sheriff's sale. (See CAVEAT EMPTOB.) caveat emptor applies to, 122 exceptions, 127 title under void judgment, 130 title under void execution, 133 purchaser cannot require cove- nants, 162 covenants enure to benefit of pur- chaser at, 415 Pennsylvania, equitable doctrine of detention of purchase money does not apply to, 732 Signature. of grantor to deed not essential, 57 but should be required by pur- chaser, 57 of certifying officer to certificate of acknowledgment, 71 to be noted in examination of title, 177 Sovereignty. (See ACTS OF SOVER- EIGNTY, EMINENT DOMAIN.) Specific performance. (See TITLE, RIGHT TO PERFECT, COMPENSA- TION FOB DEFECTS, PURCHASES, DOUBTFUL TITLE.) of executory contracts at suit of purchaser, 519 denied where vendor has no title, 520 and where equitable title is in a stranger, 521 granted as against second pur- chaser with notice, 521 vendor must make reasonable ef- fort to get in title, 523 want of title at time of contract, no objection, 523 when vendor may be required to remove incumbrance, 524 when he cannot be required to remove defect, 524 abandonment of contract waives right to specific performance, 525 acceptance of offer to sell must be unqualified, 525 effect of acceptance of purchaser " provided the title is perfect," 525 Specific performance Continued, purchaser must have paid or ten- dered purchase money, 526 unless he has notice that vendor will not perform, 527 laches takes away purchaser's right to relief, 528 damages in lieu of specific per- formance denied, 528 unless other relief was in good faith the object of the suit, 529 measure of damages in such cases, 531 at suit of purchaser, with com- pensation for defects, 532 may take such estate as vendor has, 532 or apply purchase money to in- cumbrances, 536 or have abatement of purchase money, 534 basis upon which compensation will be decreed, 535 purchaser bound by election to keep the estate, 536 decree for abatement, how framed, 536 purchaser cannot require indem- nity against future loss, 537 except, it seems, against inchoate right of dower, 538 and this by abatement of pur- chase money, 540 where specific performance with abatement denied, 542 where there is title to small portion only. 542 where conditions of sale pro- vide for rescission. 542 whore purchaser bought with 'knowledge of defect, 543, 544 where purchaser has been guilty of laches, 543 where contract was to convey upon a contingency, 543 where inconsistent with the contract, 544 purchaser must have given ven- dor opportunity to abate. 545 must take the whole of part to which title i? pood. 545 right of vendor to rescind where title fails. 545 denied, unless reserved in the contract, 545 or except in case of fraud or mistake. 546 vendor rescinding must return purchase money, 548 specific performance of covenants for title, 557 992 INDEX [REFERENCES ARE TO PAGES] Specific performance Continued, of covenant for further assur- ance. 557 removal of incumbrance, 558, 559 conveyance of after-acquired es- tate, 560 at suit of vendor, 767, 872, 907 State. (See EMINENT DOMAIN.) covenants cannot be required from, 162 but if given operate an estoppel, 162 appropriatien of lands by, no breach of warranty, 383 Statute. (See LIMITATIONS, STATUTE OF.) of Frauds, agreement to rescind is not within, 630 does not affect right to recover back purchase money, 647 title as dependent on private, 827, 829, 11., 843, n. Street. (See HIGHWAY.) Subrogation. of surety, to be noted in examining title. 183 of purchaser at judicial and min- isterial sales, 138, 144 of purchaser to benefit of lien, 555 where no covenants for title, 710 Subsequent purchaser. (See PUR- CHASER.) entitled to benefit of covenants for title, 335, 409 Sufficiency of conveyance tendered. (See DEED.) Sufficiency of vendor's title. (See DorHTKri. TITLE, TITLE, ABSTRACT or TITLE.) Suit. (See ACTION.) effect of notice to covenantor of, and request to defend. 460 in equity, when a breach of cove- nant for quiet enjoyment, 475 Sunday. deed executed on, is valid, 46 Surplusage. doea not vitiate certificate of acknowledgment, 73 Surrender. of premise*, when a constructive eviction, 394 Surrender Continued. adverse title must have been bos- tilely asserted, 399 and must be shown to have been paramount, 400 Suspension of power of alienation, title as dependent on, cases cited, 840, n., 842, 11. Taxes. to be noted in examining title, 184 when breach of covenant against incumbrances, 312 covenants for title cannot be re- quired from tax officer, 162 when to be paid by purchaser, 649 Tax sale. will not pass benefit of covenants for title, 415 caveat emptor applies to, 136 Tax title. validity of tax sale to be noted in examining title, 184 burden is on adverse claimant to show invalidity of, 184 caveat emptor applies to purchase at tax sale, 136 and has been applied to transfer of tax title, 136 not marketable, when, 848 Tenants in common. should covenant severally, 157 may sue severally for breach of warranty, 379 Tender of performance. by purchaser, necessity for, 209 distinction between mutual and de- pendent covenants, 210 what is sufficient tender, 212 when no tender need be made, 212 duty of vendor to tender perform- ance, 216 vendor must prepare conveyance, 220 tender must be averred, 222 Term of years. (See LEASE.) Timber. privilege, breach of covenant against incumbrances, 319 Time. (See LACHES, LIMITATIONS, STATUTE or.) of completing contract, when mate- rial. SS3 in which to perfect the title al- lowed, 872, 879 INDEX 993 [REFERENCES ARE TO PAGES] Time Continued. in which to examine title allowed, 171 in which abstract should be fur- nished, 169 title as dependent on presumptions from lapse of, 814, 866 Title. ( See TITLE, EIGHT TO PERFECT THE.) absolutely 'bad, what is, 2 purchaser may demand what, 20, 767 covenants for, which purchaser may demand, 147 abstract of, 163 should be examined by purchaser, 164, 2.54, 259, 428 of lessor not usually examined, 157, 443, 773 waiver of objection to, 190 paramount, may be gotten in by covenantee, 401, 549 may be perfected by purchaser, 401 acceptance of, with compensation for defects, 532, 907 subsequently acquired, enures to grantee, 561 root of, what is, 165 doubtful, what is, 768 as dependent on adverse possession, 805 presumptions from lapse of time, 814 notice, 817 errors in judicial proceedings, 821 sale of estates of infants and others, 826 want of parties to suits, 828 defective conveyances, 833 construction of deeds and wills, 839 competency of parties to instru- ments, 841 intestacy and insolvency, 847 satisfaction of incumbrances, 864 vendor may perfect, 872 may be referred to master in chan- cery, 900 Title bond. is a sealed obligation to make title under penalty, 2*4 acceptance of, has been held a waiver of rigiLt to rescind, 205 contrary view in other cases, 656 Title, Right to perfect the. right of purchaser to perfect the title, 549 .Title, Right to perfect the Cont'd. by the purchase of adverse claim, 549 but only as set-off to purchase money, 550 unless he has been evicted or sur- rendered the premises, 549 purchase must have been neces- sary for his protection, 551 price paid not conclusive of value of adverse claim, 552- caution in purchasing prospec- tive interests, 552 discharge of liens and incum- brances, 552 purchaser may always apply pur- chase money to liens, 553 duty so to Apply purchase money, 553 takes the risk of validity of ihe incumbrance, 554* caution in paying off mortgage lien, 554 rights of transferee of mort- gage note, 554 can have credit only for amount actually paid, 555 subrogation to benefit of lien- dis- charged, 555 and to all of lienor's remedies, 555 but only to extent of amount paid out, 555 in case of void sale, 556. ( See CAVEAT EMPTOR.) right of vendor to perfect the title before time fixed for comple- tion of the contract, 872 vendor may of right remove objections, 872 unless he has no colorable title, 873 existence of incumbrances im- material. 8.74 unless contract provides that they shall be discharged be- fore time for completion, S>74 purchaser should make objec- tions to title in time, 875 day fixed for performance usu- ally a formality, 875 rule where no time is fixed, 876 where purchase money is pay- able in installments, 877 vendor must pay costs of suit, 878 injunction or ne exeat will not be granted vendor, 878 vendor not obliged to perfect the title, 878 994 INDEX [REFERENCES AHE TO PAGES] Title, Right to perfect the Cont'd. after lime fixed fur completion of the contract. -87!) may perfect the title at any time before decree, 870 especially if purchaser knew title was defective, 882 but cannot have indefinite time, 882 exceptions to the general rule, 883 (1) where time is material, 883 (2) where the covenants are mutual and dependent 8S6 (3) where the vendor has ac- quiesced in purchaser's ob- jections, 887 (4) where much loss and in- jury would result to pur- chaser, 887 (5) where vendor has been guilty of fraud, 888 (6) where vendor had no colorahlo title, 888 (T) where vendor has been guilty of laches, 894 (8) where contract stipu- lates for rescission, 895 (9) where time is made .ma- terial by notice, 897 in what proceedings vendor may exercise the right, 898 in suit for specific perform- ance by either party, 898 in suit to enjoin collection of purchase money, 899 in certain suits at law, 899 reference of title to master in chancery, 900 when title will be referred, 900 reference is a matter of right when title i- doubtful, 900 denied, where mere interest, MH h as it might be, was sold, 901 and whero the court is satis- fied about the title, 902 at what stage of the proceed- ing reference directed, 902 procedure on reference, 902 coats of reference, how de- creed, 903 interest on purchase money while title i being perfected, 904 purchaser in most onsen ex- cused from paying intercut, 905 Tortious acts. no breach of covenant of warranty, 379 except those of grantor or his agents, 382 Trust, Deed of. sale under, when enjoined for de- fect of title, 935 Trustee. caveat emptor applies to sale by, 136 general covenants cannot be re- quired from, 158 title as dependent on power of, 843-840, notes. Uncultivated and waste lands. (See VACANT LANDS.) Usual covenants. (See COVENANTS FOB TITLE.) Vacant and unoccupied land. what is constructive eviction from, 393 Value. (See IMPROVEMENTS, DAM- AGES.) Vendor. (See PURCHASER.) entitled to reasonable time in which to prepare and tender deed, 15 when restrained from suing for purchase money, 15, 917 what covenants may be required from, 147 must furnish abstract of title, 167 competency of, to be noted in examining title, 177, 188 duty to tender performance of con- tract, 216 must disclose latent defects in the title, 2o2 not bound to call attention to patent defects, 254 may rescind on failure of title, when. 545, 626 must convey subsequently acquired title, 476, 518 may maintain ejectment against purchaser, when, 673 has a right to perfect the title, when, 872 may require purchaser to take title with compensation, when. !>"7 defense of, to purchjuer's applica- tion for relief, 5, 9 Vendor's lien. to be noted in examining title, 179 IXDEX 995 [REFERENCES ABE TO PAGES] Venue. of certificate of acknowledgment, importance of, 6JO Voluntary conveyance. (See VOLUN- TEERS.) title as dependent on notice of, 817 Volunteers. deed will not be reformed in favor of, 624 Waiver. of objections to deed, 77 Waiver of objections to title. not necessarily a waiver of right to compensation, 191 irf an implication of law in most cases, 192 resale does not amount to waiver, 195 waiver by taking possession, 196 implied from laches of purchaser, 199 waiver by continuing negotiations with vendor, 200 waiver in cases of fraud, 201 implied from purchase with notice of defect, 203 none implied from want of agree- ment for covenants, 205 Want of title. (See DOUBTFUL TITLE, TITLE, PURCHASER, VENDOR.) Warrantia chartae. writ of, no longer in use, 356 Warranty, Covenant of. origin and form, 355 can be created only by deed, 357 is either general or special, 357 construction and effect, 359 includes the other covenants in some States, 359 when does not include covenant against incumbrances, 360 effect by way of estoppel or re- buttal. (See ESTOPPEL.) not affected by notice of adverse claim, 361 want of consideration no defense to action on, 362 Statute of Limitations begins to run, when, 362, 3S7 does not extend to quantity, 363 qualification and restrictions of, 365 express intention to restrict must appear, 366 conveyance of " right, title and interest" with warranty, 367 Warranty, Covenant of Continued. when implied, 3G9 in a lease, 37 1 in an exchange, 372 in partition, 372- none from recitals in a deed, 373 parties bound and benefited, 373. married- women, 373 heirs and devisees-, 374 joint covenantors, 376 bankrupts; 376 personal representatives and fiduciaries, .377 municipal corporations, 37S who may sue for breach, 378 what constitutes breach not broken by tortious disturb- ance, 379 except by covenantor himself, 382 nor by exercise of eminent do- main, 383 broken by eviction only, 385 entry by paramount claimant, 3SS under legal process, 388 under foreclosure of incum- brance, 389 constructive eviction, 390 inability to get possession, 390 vacant and unoccupied land, 393 surrender of possession, 394 judgment in ejectment not an eviction, 396 hostile assertion of adverse claim, 399, 405 must show paramount title in surrenderee, 400 purchase of outstanding title, 401 covenantee must show that title was paramount, 403 discharge of incumbrance to prevent eviction, 404 loss of incorporeal hereditament, 407 existence of adverse easement, 407 runs with land till eviction, 409 assignee after eviction, entitled, when, 410 equitable owner not entitled, 411 assignee may sue in his own name, 411 several actions against original covenantor, 412 release of covenant by immediate covenantee, 412 quit claim passes benefit of, 414 996 INDEX [REFERENCES ARE TO PAGES] Warranty, Covenant of Continued, intermediate covenanted _must have been damnified. 415 remote assignee may sue original covenantor, 417 mortgagee entitled to benefit of, 419 original covenantor must have been actually seized, 420 nominal grantor joining for con- formity not liable to assignee, 421, 430 assignee not affected by equities of covenantor, 422 covenant extinguished by recon- veyance to grantor, 423 pleadings in suit by assignee, 423 measure of damages, 424 in most States is consideration money, 424 value a*t time of eviction is, in New England States, 425, 433 exception to general rule in case of mortgage, 427 no allowance for improvements, 428, 450 not aggravated by grantor's fraud, but actual damages may be given in action for deceit, 429 is value at time of contract and not time of conveyance, 429 nominal only against nominal grantor, 430 and against mere voluntary grantor, 430 purpose of purchase immaterial on question of, 431 governed by lea loci contracts, 431 on collateral contract to remove incumbrance, 432 failure of grantee to take pos- session does not affect, 432 where purchase money ia unpaid, 432 in favor of assignee, 436 true consideration may be shown, 436 stated in deed prima facie evi- dence only, 430 where none stated, 437 where not paid in money, 43S agreement for non-liability in- admissible, 438 where covenantee buys in para- mount title. 439 can recover only amount so. paid, 439 except where premises were public luiuN, 440 Warranty, Covenant of Continued, and necessary expenses there- with incurred, 440 must show that title was para- mount, 440 refusal to buy in immaterial on question of, 440 on eviction from leased premises, 442 actual value of residue of term, 442 where lessee liable for mesne profits, 444 on eviction from part of prem- ises, 444 relative and not average value of part lost, 444 loss of part no ground for re- scission, 44S where grantor had only a life estate, 448 burden on plaintiff to show relative value, 449 where premises are subject to easement, 449 interest as element of damages, 450 as governed by liability for mesne profits, 453 runs from time of purchase, 453 costs in suits by adverse claim- ant as element of damage, 453 where notice of suit has been given, 453 conflict of authority on this question, 454 refused, unless plaintiff has been evicted, 455 other cases in which, refused, 456 special agreement to indem- nify not merged in deed, 457 grantee need not show pre- vious demand for reimburse- ment, 457 counsel fees and expenses as ele- ments of damage, 45S conflict of authority on this point, 458 as dependent on notice and re- quest to defend. 459 notice to defend or prosecute eject- ment, 460 if given relieves covenantee from showing recovery under para- mount title, 461 denied in North Carolina. 462 concludes covenantor from dis- puting title of evii-tor. 463 INDEX 997 [REFERENCES ARE TO PAGES] Warranty, Covenant of Continued, unless derived from covenantee himself, 465 should be given to covenantee himself, 464 to agent for collection of pur- chase money insufficient, 464 is nugatory in case of actual col- lusion, 465 right of covenantor to new trial, 465 must be unequivocal, certain and explicit, 465 mere knowledge of action insuffi- cient, 465 effect of notice to prosecute ejectment, 466 no particular form of, necessary, 466 need not be in writing, 466 if not given, judgment not even prima facie evidence of title, 467 must be given in reasonable time, 468 fact of, is question for jury, 468 sufficiency of, is question for court, 468 not indispensable to recovery on warranty, 468 merely dispenses with proof of title in evictor, 46S but covenantee must always show that such title was not derived from himself, 469 pleadings in action for breach of warranty, 471 covenant must be set out in sub- stance, 471 Warranty, Covenant of Continued, eviction by one having lawful right must be averred, 472 not sufficient merely to negative words of covenant, 471 but nature of eviction need not be alleged, 471 title of evictor need not be set forth, 472 reliance on warranty need not be alleged, 472 must aver that title of evictor was older than that con- veyed, 472 unless warranty was limited to claims of a particular per- son, 472 notice and request to defend need not be averred, 473 must aver that title of evictor was within the covenant, 473 burden of proof lies on plaintilT but shifts under certain circum- stances, 473 warranty is proven by the deed, without proof of execution, 474 detention of purchase money on breach of, 480. (See PURCHASE MOIHET.) Will. objections to title apparent on face of, 180 mistake in, cannot be corrected, 608 questions of title arising on con- struction of, 839 Words of conveyance. indispensable in deed. (See DEED.) LAW UBRARY OF CAUFORMA LOS ANGELES ^ J?Si. TH I RN REGIONAL LIBRARY FACIUTY A 000711 762 5