THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW
 
 MARKETABLE TITLE 
 
 TO 
 
 BSTATE 
 
 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 
 
 SECOND EDITION 
 
 BY 
 
 CHAPMAN W. MAUPIN 
 
 n i 
 
 OF THK WASHINGTON, D. C., BAR 
 
 NEW YORK 
 
 BAKER, VOORHIS & COMPANY 
 1907
 
 COPYBIGHT, 1907, 
 
 BY BAKER, VOORHIS & CO.
 
 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 
 v. Inch 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 
 1o 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 mado 
 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 7 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 
 
 735263
 
 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 wa* 
 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 
 accept, 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. 
 Hence 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 been afforded him in a 
 generous manner by his publishers, Messrs. Baker, Voorhis & Co. r 
 of the city of New York ; and courtesies extended to him by 
 Messrs. B. Kennon Peter and F. S. Key Smith, in charge of the 
 law library of the Bar Association of the District of Columbia. 
 
 C. W. M. 
 
 WASHINGTON, D. C., May 1st, 1896.
 
 PREFACE TO SECOND EDITION. 
 
 The author has examined the cases relating to this branch of 
 the law of real property, decided by the courts since the publication 
 of the first edition of this work in 189G. Such of them as are no 
 more than applications of settled principles of law, he has merely 
 cited or referred to under their appropriate heads. A large num- 
 ber, valuable for purposes of illustration, have been set out as 
 paragraphs in the notes; and many have furnished material for 
 the enlargement and improvement of the text. A number of new 
 sections have been added to the body of the work. In all some- 
 thing more than seven hundred new decisions appear in the present, 
 edition, representing the application of the law governing the 
 rights of purchasers of defective titles to real property by the 
 courts of nearly every State in the Union. 
 
 C. W. M. 
 
 WASHINGTON, D. C., 1907.
 
 ANALYSIS. 
 
 BOOK I. 
 
 Of remedies in affirmance of the contract of sale. 1 
 Of affirmance by proceedings at law. 1 
 
 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. 
 Caveat Emptor. 75 
 
 Covenants which the purchaser may demand. 143 
 Abstract of title. 159 
 Waiver of objections to the title. 183 
 Tender of purchase money and demand of deed. 199 
 Measure of damages. 209 
 Action for deceit. 232 
 
 Of proceedings at law after the contract has been executed. 253 
 Action for covenant broken. 253 
 
 Covenants for seisin and for right to convey. 253 
 
 Covenant against incumbrances. 278 
 
 Covenant of warranty and for quiet enjoyment. 318 
 
 Covenant for further assurance. 416 
 
 Detention of purchase money on breach of the covenants 
 
 of warranty and against incumbrances. 420 
 Of affirmance by proceedings in equity. 456 
 
 Specific performance of executory contracts. 456 
 
 Right of the purchaser to take the title with compensation 
 
 for defects. 467. 
 
 Eight of the purchaser to perfect the title. 481 
 Specific performance of covenants for title. 489 
 Estoppel of the grantor. 493 
 Reformation of the convevance. 526
 
 Vlll ANALYSIS. 
 
 BOOK II. 
 
 Of remedies in disaffirmance or rescission of the contract of sale. 548 
 Of rescission by act of the parties. 548 
 Of virtual rescission by proceedings at law. 554 
 
 Of proceedings at law where the contract is executory. 554 
 Of the right to recover back or to detain the purchase 
 money. 554 
 
 Of the obligation of the purchaser to restore the premises 
 
 to the vendor. 583 
 
 Of proceedings at law where the contract has been executed. 599 
 Detention of the purchase money on breach of the covenant 
 
 of seisin. 599 
 
 Acceptance of conveyance without covenants for title. 61C- 
 Restitution of the purchase money where there are 
 
 covenants. 643 
 
 Fraud in respect to the title. G47 
 Of rescission by proceedings in equity. 65X5 
 
 Where the contract is executory. 656 
 
 Suit for rescission and defenses to suit for specific 
 performance. 656 
 
 The doctrine of doubtful titles. 672 
 
 Eight of the vendor to perfect the title. 741 
 
 Right to require the purchaser to take the title with 
 
 compensation. 769 
 
 Where the contract has been executed. 778 
 Injunction. 778 
 Fraud and mistake, 798
 
 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 
 EXECUTOR^. 
 
 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 {o make a ''good and sufficient doed." 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
 
 CONTEXTS. 
 
 Description of the premises. 20 
 
 Description of the 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 
 
 (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. 39 
 
 (r) Surplusage and clerical mistakes. 40 
 
 (B) Amendment of certificate. 41 
 Reservation, restrictions and conditions. 42 
 Waiver of objections to the conveyance. 43 
 
 CHAPTER V. 
 CAVEAT EMPTOB. 
 
 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. $ 40 
 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 
 
 Fraudulent 'representations. ? 59 
 
 Rights of purchaser from purchaser under execution. 5 60
 
 CONTEXTS. XL 
 
 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 and 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. 8 76 
 
 Objections appearing from the instruments under which title ia 
 
 claimed. 77 
 
 Objections which appear from the public records. 78 
 Objections which appear upon inquiries in fxtin. 8 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
 
 .xii CONTENTS. 
 
 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 TUB VENDOR FOR 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 
 
 Existence of fraudulent intent. 105 
 
 Statements of opinion. 106 
 Pleading. 107 
 
 OF AFFIRMANCE BY PROCEEDINGS AT LAW AFTER THE CONTRACT 
 HAS BEEN EXECUTED ACTION FOR COVENANT BROKEN. 
 
 CHAPTER XII. 
 
 OF THE COVENANT FOB SEISIN. 
 
 Form and effect. 108 
 
 What constitutes a breach. 109 
 
 As-signability of this covenant : 
 Tn general. 110 
 Does not run with the land. 111 
 Contrary rule. Doctrine of continuing breach. 112 
 Possession must have passed with the covenantor's deed. 113 
 When Statute of Limitations begins to run. 114 
 Conflict of laws. 115 
 
 Measure of damages. 116 
 
 Burden of proof. 117 
 
 Pleadings. 118
 
 CONTENTS. Xlll 
 
 CHAPTER XIII. 
 
 COVENANT AGAINST INCUMBBANCES. 
 
 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. 12G 
 
 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 WABBANTY AND FOB QUIET ENJOYMENT. 
 
 Form. 134 
 
 Construction and effect. 135 
 Qualifications and restrictions. 130 
 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 
 of incorporeal rights. 152
 
 XIV CONTENTS. 
 
 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 \>y immediate covenantee. 156 
 
 Quit claim passes benefit of covenant. 157 
 
 Immediate covenantee must liave been damnified. 158 
 
 Remote assignee may sue original covenantor. 159 
 
 Mortgagee entitled to benefit of covenant. 160 
 
 Original covenantor must have been actually seised. 161 
 
 Assignee not affected by equities between original parties. 162 
 
 Covenant extinguished by reconveyance to covenantor. 163 
 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. 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 request to defend. 175 
 
 Pleading and burden of proof. 176 
 
 Covenant for quiet enjoyment. 177 
 
 CHAPTER XV. 
 
 COVENANT FOB FUBTHEB ASSUBANCE, 
 In general. 178 
 Breach. Estoppel. Assignability. Damages. 179 
 
 CHAPTER XVI. 
 
 DETENTION OF THE PURCHASE MONEY WHEBE THESE HAS BEEN A BBEACH OF 
 
 THE COVENANTS FOB TITLE. 
 General rule. 180 
 
 Merger of prior agreements in covenants for title. 181 
 Purchase with knowledge of defect. 182 
 Recoupment. 183 
 
 Recoupment in foreclosure of purchase-money mortgage. 184 
 Partial failure of consideration. 185 
 Assumpsit to try title. 186 
 What constitutes eviction. 187 
 Discharge of incumb ranees. 188 
 Rule in Texas. 189 
 Rule in South Carolina. 190 
 Pleadings. 191 
 Resum6. 192
 
 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 FOR 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 FOR TITLE. 
 
 General rules. 205 
 
 Covenant against incumbrances. 206 
 
 Conveyance of after-acquired estate. 207 
 
 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. 2!3 
 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 
 Resum. 220
 
 XVI CONTENTS. 
 
 CHAPTER XXII. 
 REFORMATION OF THE CONVEYANCE. 
 
 When granted and when 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 
 
 BOOK II. 
 
 OF REMEDIES IN RESCISSION OR DISAFFIRMANCE OF THE CON- 
 TRACT OF SALE. 
 
 CHAPTER XXIII. 
 
 OF RESCISSION BY ACT OF THE PABTIES. 
 
 General principles. 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 DETAIN THE PURCHASE MONEY ON 
 FAILURE OF THE TITLE. 
 
 General principles. 237 
 
 Restitution of the purchase money. 238 
 
 What action purchaser should bring. 239 
 
 Detention of the purchase money. 240 
 
 Exceptions and qualifications. 241 
 
 What objections to title may be made. 242
 
 CONTENTS. XVI 1 
 
 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 PURCHASER 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. 2G1 
 
 Other exceptions. 262 
 
 Restoration of the premises where the contract is void. 263 
 
 OF VIETUAL RESCISSION BY PROCEEDINGS AT LAW AFTEB THE 
 CONTRACT HAS BEEN EXECUTED. 
 
 DETENTION OF THE PUECHASE 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 THE 
 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
 
 XV111 CONTENTS. 
 
 CHAPTER XXVIII. 
 
 OF RESTITUTION OF THE PURCHASE MONEY WHERE THERE ARE COVENANTS FOR 
 
 TITLE. 
 
 General rule. 272 
 Exceptions. 273. 
 
 CHAPTER XXIX. 
 
 OF DETENTION OR RESTITUTION OF THE PURCHASE MONEY IN CASES OF- FRAUD. 
 
 General rule. 274 
 Executed contracts. 275 
 Waiver of fraud. 276 
 
 OF RESCISSION BY PROCEEDINGS IN EQUITY. 
 WHERE THE CONTRACT is EXECUTORY. 
 
 CHAPTER 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. 281 
 
 Parties. 282 
 
 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 registration. 
 
 300 
 
 Construction of deeds and wills. 301 
 Competency of parties to deeds. 302 
 Title as dependent upon intestacy. Debts of decedent. 303
 
 CONTEXTS. XIX 
 
 Ineumbrances. 304 
 
 Admitted incumbrances. 305 
 
 Ineumbrances which make the title doubtful. 306 
 
 Apparently unsatisfied incumbrances. 307 
 
 CHAPTER XXXII. 
 OF THE RIGHT OF THE VENDOR TO PEBFECT 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 bo 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 injnnction. 335 
 
 Resume. 336 
 
 Where there is no present right to recover substantial damages for breach 
 of the covenants. 337
 
 XX CONTENTS. 
 
 CHAPTER XXXV. 
 OF FBAUD AND MISTAKE. 
 
 Fraud on the part of the grantor. 338 
 General principles: 
 
 Damages in equity. 339 
 Mistake of fact: 
 
 General rule. 340 
 
 Negligence of purchaser. 341 
 
 Immaterial mistakes. 342 
 
 Mistakes as to quantity. 343 
 Mistake of law: 
 
 General rule. 344 
 
 Distinction between ignorance of law and mistake of fact. 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
 
 [BEFKKE.N'CK.S ARE TO PAGES.] 
 
 Abbott v. Allen, 256, 258, 276, 278, 
 
 447, 449, 637, 848. 
 Abbott v. Hills, 381 
 Abbott v. James, 721, 770 
 Abbott v. Ronan, 368 
 Abby v. Goodrich, 380 
 Abel v. Hethcote, 731 
 Abendroth v. Greenwood, 34 
 Abercombe v. Owings, 4V 7 
 Aberdeen v. Blackman, 282 
 Abernathy v. Boazman, 259, 335 
 Abernathy v. Phillips, 214 
 Able v. Chandler, 112 
 Abner v. York, 848 
 Abraham v. Mieding, 738 
 Abrams v. Rhoner, 738, 740, 745 
 Ackerman v. Smiley, 547 
 Adair v. McDonald, 575 
 Adami v. Backer, 754, 758 
 Adams v. Baker, 337 
 Adams v. Conover, 258, 375, 409 
 Adams v. Fairbain, 596 
 Adams v. Gibney, 343 
 Adams v. Heathcote, 190, 192% 
 Adams v. Henderson, 776 
 Adams v. Kibler, 82 
 Adams v. James, 251 
 Adams v. Messenger, 492 
 Adams v. Reed, 556, 641 
 Adams v. Ross, 340, 548 
 Adams v. Smith, 141 
 Adams v. Stevens, 574 
 Adams v. Valentine, 776, 828 
 Adamson v. Rose, 213 
 Aday v. Echols, 489 
 Addleman v. Mormon, 843 
 Adkins v. Tomlinson, 259, 274 
 Agan v. Shannon, 105 
 Aiken v. Franklin, 257 
 Aiken v. McDonald, 397, 401, 412 
 Aiken v. Sanford, 33 
 Ake v. Mason, 305 
 Akerly v. Vilas, 633 
 Ala. Life Ins. Co. v. Boykin, 67 
 Albro v. Garland, 791 
 Alday v. Rock Island Co, 118 
 Alden v. Parkliill, 470 
 Alexander v. Kerr, 195 
 Alexander v. McAuley, 640 
 
 Alexander v. Merry, 63 
 
 Alexander v. Mills, 712, 713, 714,715 
 
 Alexander v. Newton, 561 
 
 Alexander v. Schreiber, 311 
 
 Alexander v. Staley, *22 
 
 Alexander v. Utley, 194, 578 
 
 Alger v. Anderson, 857 
 
 Alkus v. Goettmann, 769 
 
 Allaire v. Whitney, 687, 688 
 
 Allemong v. Gray, 339 
 
 Allen v. Allen, 264 
 
 Allen v. Anderson, 2i3, 216, 500 
 
 Allen v. Atkinson, 166, 594, 749 
 
 Allen v. Denoir, 67 
 
 Allen v. Elder, 561 
 
 Allen v. Hammond, 859 
 
 Allen v. Hazen, 148, 149 
 
 Allen v. Holton, 340, 548 
 
 Allen v. Hopson, 600, 685, 835 
 
 Allen v. Kennedy, 265, 377 
 
 Allen v. Lee, 284, 335 
 
 Allen v. Little, 267, 379, 382 
 
 Allen v. Pegram, 445, 648 
 
 Allen v. Phillips, 606, .732, 738 
 
 Allen v. Sayward, 539 
 
 Allen v. Taylor, 335 
 
 Allen v. Thornton, 836, 838 
 
 Allen v. Yeater, 149 
 
 Allis v. Nininger, 363, 364 
 
 Allison v. Allison, 337, 356 
 
 Allison v. Shilling, 496, 499 
 
 Allstead v. Nicoll, 799 
 
 Almy v. Hunt, 292 
 
 Altemus v. Nichols, 527 
 
 Altgelt v. Mernitz, 108 
 
 Alvarez v. Brannan, 13, 538. 661, 806 
 
 Alvord v. Waggoner, 357, 382 
 
 American Assoc. v. Short, 636 
 
 Ames v. Cosby, 318, 370 
 
 Amick v. Bowyer, 606 
 
 Amos v. Cosby, 318, 370 
 
 Anderson v. Ahderson, 181 
 
 Anderson v. Creston L. Co., 794 
 
 Anderson v. Foulke, 78 
 
 Anderson v. Knox, 318, 374 
 
 Anderson v. Lincoln, 195, 446, 640, 
 
 847 
 
 Anderson v. Long, 657 
 Anderson v. Snyder, 822 
 Anderson v. Strasburger, 167, 727 
 
 795, 797
 
 XX11 
 
 TABLE OF CASES. 
 
 [REFERENCES ABE TO PAGES.] 
 
 Anderson v. Washabaugh, 357, 421, 
 
 000. 
 
 Anderson v. Wilder, 528 
 Andrews v. Appel, 208, 314, 315, 321 
 Andrews v. Babcock, 701, 731, 792, 
 
 810 
 
 Andrews v. Richardson, 137, 140 
 Andrews v. Spurrs, 560 
 Andrews v. Wolcott, 381, 385 
 Andrews v. Word, 148, 777 
 Andrews v. S. & L. Smelting Co., 242, 
 
 250, 351, 416, 662 
 Ankeny v. Clark, 149, 701, 731, 821, 
 
 826 
 
 Anonymous, 440 
 
 Anthony v. Rockefeller, 335, 362 
 Appleton v. Banks, 156 
 Appovvel v. Monnoux, 382 
 Arbib, In re, 504 
 Archer v. Archer, 779 
 Argall v. Raynor, 721, 752, 760 
 Arledge v. Brooks, 207 
 Armstead v. Hundly, 252, 858, 860 
 Armstrong's App., 116 
 Armstrong v. Brown. 793 
 Armstrong v. Darby, 439, 440, 515 
 Armstrong v. Harshorn, 103 
 Arnett v. Smith, 795 
 Arnold v. Carl, 843 
 Arnold v. Chamberlain, 304 
 Arnstein v. Burroughs, 828 
 Arrison v. Harmstead, 182 
 Arthur v. Weston, 46 
 A. S. Abell Co. v. Ins. Co., 745 
 Asay v. Lieber, 668 
 Ash v. Holder, 506 
 Ashbaugh v. Murphy, 74 , 
 
 Ashburner v. Sewell, 197, 504 
 Asher Lumber Co. v. Cornett, 377 
 Ashworth v. Mounsey, 28 
 ^tor v. Miller, 379, 385 
 Athens v. Nale, 332 
 Athey v. McHenry, 559 
 Atkins v. Bahrett, 36 
 Atkinson v. Taylor, 710, 764 
 Atty.-Gen. v. Day, 493, 829 
 Atty.-Gen. v. Purmort, 339 
 Atwood v. Chapman, 664 
 Atwood v. Frost, 116 
 Aufricht v. Northrup, 284, 286, 336 
 Augsberg v. Meredeth, 803 
 Austin v. Barnum, 787 
 Austin v. Ewell, 481, 492 
 Austin v. McKinney, 370 
 Austin v. Richards, 337 
 Auwerter v. Mathiot, 118, 126 
 Aven v. Beckom, 155 
 Averett v. Lipscombe, 25, 32, 725, 812 
 Averell v. Wilson, 552 
 Avery v. Aikens, 545 
 Avery v. Dougherty, 343, 353 
 
 Axtel v. Chase, 200, 363, 365, 556, 69'8 
 Ayer v. Bric^ Co, 288 . 
 Aylett v. Ashton, 495, 830, 831 
 Ayling v. Kramer, 301 
 Ayres v. Mitchell, 194 
 
 B. 
 
 Babbitt v. Doe, 103 
 
 Babcock v. Case, 239, 24;J, 622, 680, 
 
 698, 856 
 
 Babcock v. Collins, 46 
 Babcock v. Day, 673 
 Babcock v. Trice, 469 
 Babcock v. Wilson, 38, 150 
 Bacchus v. McCoy, 256, 257, 265 
 Backhnrst v. Mayo, 127 
 Bacon v. Lincoln, 277, 278 
 Bagley v. Fletcher, 148 
 Bailey v. Hopper, 529 
 Bailey v. James, 37, 500, 093, 826 
 Bailey v. Miltenberger, 354 
 Bailey v. Murphy, 335 
 Bailey v. School, 90 
 Bailey v. Smock, 243 
 Bailey v. Snyder, 667 
 Bailey v. Timbe'rlake. 573 
 Bain'v. Fothergill, 213. 225, 490 
 Bainbridge v. Kinnaird, 495 
 Baird v. Goodrich, 635, 833, 839 
 Baird v. Laevison, 840 
 Baker v. Baker, 89 
 Baker v. Bradt, 283 
 Baker v. Corbett, 216, 404, 506 
 Baker v. Howell, 404 
 Baker v. Hunt, 256 
 Baker V. Massev. 561. 572 
 Baker v. Pyatt, 573, 576 
 Baker v. Railsback. 469, 497 
 Baker v. Savidge, 679 
 Baker v. Shy, 772, 795 
 Balch v. Arnold, 519 
 Baldridge v. Cook, 197 
 Balclry v. Parker, 826 
 Baldwin v. McGrath, 798 
 Baldwin v. Munn, 211, 213. 215, 217 
 Baldwin v. Kerlin, 560 
 Baldwin v, Salter, 797 
 Baldwin v. Trimble, 776, 787 
 Baliour v. Whitman, 297 
 Ballard v. Burroughs, 220, 335 
 Ballard v. Child, 340 
 Ballard v. Johns. 115 
 Ballard v. Way. 30 
 Ballard v. Walker, 192 
 Ballentine v. Clark, 570 
 Ballon v. Lucas, 664 
 Ballou v. Sherwood, 738 
 Balmanno v. Lumley, 495. 825. 830 
 Baltimore, etc., Society v. Smith, 213 
 Bamford v. Harris. 457 
 Bandy v. Cortright, 343
 
 TABLE OF CASES. 
 
 [REFERENCES ABE TO FACES.] 
 
 XXU1 
 
 Bangs v. Barrett, 821 
 
 Hank v. Bank, 855 
 
 Bank v. Baxter, 238 
 
 Bank v. Clements, 320, 405 
 
 Bank v, Ettinge, 697 
 
 Bank v. Loughrau, 749 
 
 Bank v. Mersereau, 483, 529, 538 
 
 Bank v. Risley, 130 
 
 Bank of Col. v. Hayner, 190 
 
 Bank of U S. v. Bank of Wash., 127 
 
 Hank of U. S. v. Cochran, 92 
 
 Bank of U. S. v. Daniel, 808 
 
 Bank of Winchester v. White, 424 
 
 Banks v. Ammon, 52, 112, 238, 668 
 
 Banks v. Walker, 460, G'48, 670, 845 
 
 Banks v. Whitehead, 360, 433 
 
 Bankson v. Lagerlof, 288 
 
 Bannister v. Higginson, 103 
 
 Bannister v. Read, 584 
 
 Baptiste v. Peters, 247, 850, 859 
 
 Barber v. Gery, 787 
 
 Barbour v. Mickey, 487, 497 
 
 Barbour v. Nichols, 215 
 
 Bardeen v. MarKstrum, 448 
 
 Bardell v. Trustees, 347 
 
 Barden & Stickney, 342 
 
 Bardsley's Appeal, 701 
 
 Barger v. Gery, 730, 787 
 
 Barickman v. Kuykendall, 628, 830 
 
 Barker v. Circle, 541 
 
 Barker v. Kuhn, 275 
 
 Barkhamstead v. Case, 650, 835 
 
 Barlow v. Delaney, 70, 335, 356, 370, 
 
 422 
 
 Barlow v. McKinley, 305, 308 
 Barlow v. St. Nicholas Bank, 295, 
 
 296 
 
 Barlow v. Scott, 150 
 Barnard v. Brown, 738 
 Barnard v. Duncan, 153, 154 
 Barnard v. Lee, 803, 812 
 Barnes' Appeal, 492 
 Barnes v. Bartlett, 560 
 Barnes v. Lightfoot, 337 
 Barnes v. U. P. R. Co., 241 
 Barnes v. Wood, 491 
 Barns v. Wilson, 303 
 Barnett v. Clark, 633, 839 
 Barnett v. Garnis, 189 
 Barnett v, Hughey, 155, 391 
 Barnett v. Keehn* 286, 341 
 Barnett v. Montgomery, 346, 419 
 Barnett v. Shackelford, 64 
 Barnhart v. Hughes, 294 
 Barnwell v. Harris, 714, 737 
 Barr v. Gratz, 529 
 Barr v. Greeley, 368, 406 
 Barr v. Flemings, 354 
 Barrere v. Bartet, 354 
 Barrett v. Churchill, 83 
 Barrett v. Gaines, 800 
 
 Barrett v. Hughey, 402 
 
 Barrett v. Porter, 359 
 
 Barron v. Easton, 13 
 
 Barron v. Mullin, 78 
 
 Barrow v. Bispham, 33 
 
 Barry v. Guild, 361, 648 
 
 Bartee v. Tompkins, 113 
 
 Earth v. Ward, 293 
 
 Bartholomew v. Candee, 263 
 
 Bartle v. Curtis, 78^ 
 
 Bartlett v. i>lanton, 765 
 
 Bartlett v. Farrington, 353 
 
 Bartlett v. London, 605 
 
 Bartlett v. Magee, 734 
 
 Bartlett v. Salmon, 777 
 
 Bartlett v. Tarbell, 446 
 
 Barton v. Bouvien, 826 
 
 Barton v. Long, 248 
 
 Barton v. Morris, 527 
 
 Barton v. Rector, 190, 589 
 
 Basford v. Pearson, 259 
 
 Bashore v. Whisler, 674 
 
 Baskin v. Houser, 821 
 
 Bass v. Gilliland, 493, 821 
 
 Bassett v. Lockwood, 118, 136, 140, 
 
 141 
 
 Bassett v. Welch, 293 
 Baston v. Clifford, 207, 584, 698 
 Batchelder v. Curtis, 320 
 Batchelder v. Macon, 706, 723 
 Batchelder v. Sturgis, 299, 323 
 Bateman v. Johnson, 36, 47 
 Bateman's Petition, 67 
 Bates v. Bates, 568 
 Bates v. Delavan, 648, 678, 693, 858, 
 
 861, 862 
 
 Bates v. Foster, 340 
 Bates v. Lyons, 797 
 Bates v. Swiger, 481, 494, 513 
 Batley v. Foederer, 777 
 Batterman v. Pierce, 447 
 Batterton v. Smith, 335 
 Battle v. Rochester City Bank, 584 
 Baugh v. Price, 188 
 Baum v. Dubois, 201 
 Baumeister v. De Muth, 798 
 Baumeister v. Silver, 742 
 Baxter v. Aubrey, 594, 749 
 Baxter v. Bradbury, 256, 273, 537, 
 
 539 
 
 Baxter v. Howell, 58 
 Baxter v. Lewis, 200 
 Baxter v. Ryerss, 382 
 Bayliss v. Stinson, 713, 718, 719.720 
 Baynes v. Bernhard, 203 
 Baze v. Arper, 69 
 Beach v. Hud. R. L. Co., 776, 823 
 Beach v. Packard. 373 
 Beach v. Miller. 305 
 Beach v. Waddell, 447, 468, 639 
 Beal v. Beal, 542
 
 XXIV 
 
 TABLE OF CASES. 
 
 [REFERENCES ARE TO PAGES.] 
 
 Beale v. Seively, 4G1, 849 
 
 Beall v. Davenport, 506, 553 
 
 Beall v. Taylor, 34(5 
 
 Beamun v. Simmons, 579 
 
 Beaman v. Whitney, 58 
 
 Beams v. Mila, 766 
 
 Bean v. Herrick, 239 
 
 Bean v. Mayo, 292, 315 
 
 Bearce v. Jackson, 25U 
 
 Beard v. Delaney, 229, 231. 451, G33 
 
 Beardslee v. Underbill, 727, 7G3 
 
 Beardsley v. Knight, 261, 380, 381 
 
 Beaseley v. Phillips, 336, 377, 404 
 
 Beauchamp v. Handley, 814 
 
 Beauchamp v. Winn, 874 
 
 Beauman v. Whitney, 46 
 
 Beaumont v. Yeatman, 60 
 
 Beaupland v. McKeen, 413, G65, 66(5, 
 
 668 
 
 Beck v. Bridgman, 492 
 Beck v. Simmons, 189, 198, 556, 637, 
 
 692 
 
 Beck v. Ulrich, 654 
 Beckman v. Henn, 275 
 Beckwith v. Kouns, 739 
 Bedell v. Christy, 356, 367 
 Bedell v. Smith, 17, 202 
 Beddoe v. Wadsworth, 262, 351, 377, 
 
 381, 387 
 Beebe v. Swartwout, 261, 356, 366, 
 
 458, 552, 630, 638, 678 
 Beech v. Steele, 35 
 Beecher v. Baldwin, 398 
 Beer v. Leonard, 711 
 Beeson v. Beeson, 137 
 Beidelman v. Foulk, 670 
 Beioley v. Carter, 712, 713 
 Belcher v. Weaver, 67, 71 
 Belden v. Seymour, 155, 156, 402 
 Bell v. Adams, 529 
 Bell v. Duncan, 174 
 Bell v, Flaherty, 120 
 Bell v. Higgins, 356 
 Bell v. Holtby, 714 
 Bell v. Kennedy, 203 
 Bell v. Sternberg, 814 
 Bell v. Thompson, 455, 502 
 Bell v. Twilight, 546, 548 
 Bell v. Vana, 192 
 Bell v. Woodward, 51 
 Bellamy v. Ragsdale, 223, 616 
 Bellefont Iron W 7 ks. v. McGuire, 445 
 Bellinger v. Society, 354 
 Bellows v. Cheek, 603 
 Bellows v. Litchfield, 382, 417, 427 
 Belmont v. Coman, 286 
 Belmont v. O'Brien, 771, 787 
 Bemis v. Bridgman, 649 
 Bemis v. Smith, 372 
 Bender v. Fromberger, 2G4, 270, 271, 
 
 277, 339, 356, 395, 414 
 
 Benedict v. Oilman, 223 
 
 Benedict v. Hunt, 682 
 
 Benedict v. Williams, 808 
 
 Benjamin v. Hobbs, G96 
 
 Bennet Col. v. Cary, 460 
 
 Bennett v. Aorains, 452, 453 
 
 Bennett v. Adams, 483 
 
 Bennett v. Bittle, 353 
 
 Bennett v. Caldwell, 139 
 
 Bennett v. Fuller, 11 
 
 Bennett v. Jenkins, 270, 320, 414, 417 
 
 Bennett v. Keehn, 286, 341 
 
 Bennett v. Latham, 337, 414 
 
 Bennett v. Pierce, 845, 851 
 
 Bennett v. Waller, 439, 540, 545 
 
 Bennett v. Womack, 145 
 
 Bennett's Case, 440 
 
 Benningfield v. Reed, 92 
 
 Bensel v. Gray, 132, 507 
 
 Bensinger v. Erhardt, 47 
 
 Benson v. Coleman, 604 
 
 Benson v. Cromwell, 193 
 
 Benson v. Markol, 562, 871 
 
 Benson v. Shotwell, 181, 625, 724, 
 
 741, 763 
 
 Benson v. Yellott, 90 
 Bentley v. Craven, 730, 733 
 Bentley v. Long, 137 
 Benton v. Sentell, 519 
 Bergen v. Eby, 566 
 Bergmann v. Klein, 789, 790 
 Bernardy v. Mortgage Co., 531, 541 
 Berrian v. Rogers, 117 
 Berry v. Armstead, 855 
 Berry v. Billings, 45 
 Berry v, Lowell, 573 
 Berry v. Van Winkle, 489 
 Berry v. Walker, 510 
 Berry v. Webb, 559 
 Berryman v. Schumaker, 777 
 Bertram v. Curtis, 303 
 Bethell v. Bethell, 145, 146, 248, 252, 
 
 269, 270, 444, 535, 650 
 Bethune v. McDonald, 476, 477 
 Betts v. Union Bank, 402 
 Bever v. North, 363, 369, 373, 424, 
 
 657 
 
 Beverly v. Lawson, 493, 816 
 Tlevins v. Vansant, 534 
 Beyer v. Braender, 595 
 Beyer v. Schulze, 371, 374 
 lUbb v. Prather, 625 
 T.ibb v. Wilson, 504 
 IHckford v. Page, 256, 266, 325, 382 
 Bickley v. Biddle, 112 
 Bicknell v. Comstock, 737 
 Bierer v. Fretz, 219 
 Bigelow v. Hubbard, 300 
 Bigelow v. Jones, 359 
 Bigham v. Bigham, 284 
 Bigler v. Morgan, 47, 73, 153, 220
 
 TABLE OF CASES. 
 
 [REFERENCES ABE TO PAGES.] 
 
 Binford's Appeal, 78, 752 
 
 Bingham v. Bingham, 803, 809, 871 
 
 Bingham v. Maxey, 109 
 
 Binghum v. Weiderwax, 402 
 
 Binzer v. Epstein, 772 
 
 Birch v. Cooper, 734 
 
 Bircher v. Watkins, 273, 275, 278 
 
 Bird v. Smith, 77 
 
 Birdsall v. Walton, 486 
 
 Birney v. Hann, 382, 390 
 
 Bishop v. O'Connor, 77, 87, 113, 140 
 
 Bitner v. Brough, 211, 213, 220, 225, 
 
 497 
 
 Bitzer v. Orban, 698, 700 
 Bixby v. Smith, 753 
 Black v. Aman, 763 
 Black v. Barton, 338 
 Black v. Coon, 315 
 Black v. Croft, 600 
 Black v. Dressel, 116 
 Black v. Grant, 52 
 l>iack v. Gregg, 58 
 Black v. Stone, 556 
 Black v. Walker, 603, 604 
 Blackburn v. Randolph, 570 
 Blackburn v. Smith, 161, 620. 
 Black Hills, N. B. v. Kellogg, 463,811 
 Blackie v. Hudson, 292 
 Blacklow v. Laws, 163 
 Blackmore v. Shelby, 537, 538, 805 
 Blackshire v. Homestead Co., 275 
 Blackwell v. Atkinson, 377 
 Blackwell v. Lawrence Co., 213, 217 
 Blair v. Claxton, 467 
 Blair v. Perry, 466 
 Blair v. Rankin, 831 
 Blake v. Everett, 301 
 Blake v. Phinn, 28, 825 
 Blake v. Tucker, 5, 19, 547 
 Blakemore v. Kimmons, 771 
 Blakeslee v. Ins. Co., 540 
 Blanchard v. Blanchard, 300, 
 
 359, 362, 410 
 
 Blanchard v. Brooks, 340, 548 
 Blanchard v. Ellis, 535 
 Blanchard v. Hazeltine, 343 
 Blanchard v. Hoxie, 271, 278, 433 
 Blanchard v. Stone, 194 
 Blanck v. Sadlier, 728, 780 
 Bland v. Bowie, 139 
 Bland v. Thomas, 435 
 Blapks v. Ripley, 472 
 Blanks v. Walker, 628 
 Blann v. Smith, 203 
 Blanton v. Ky. Dist. Co., 81 
 Blasser v. Moats, 445 
 Bledsoe v. Doe, 44 
 Bledsoe v. Little, 51 
 Bletz v. Willis, 444 
 Blevins v. Smith, 300 
 Bliss v. Negus, 656 
 
 Blodgett v. Hitt, 127, 513 
 
 Blondeau v. Sheridan, 260, 303, 311, 
 
 360 
 
 Bloom v. Welsh, 121 
 Bloom v. Wolf, 156, 396 
 blossom v. Knox, 392 
 Blossom v. Van Court, 292 
 Blydenburgh v. Cotheal, 262, 356, 377 
 Boar v. McCormick, 673 
 Boas v. Farrington, 24 
 Board of Commrs. v. Younger, 236 
 Board of Ed. v. Reilly, 768 
 Boardman v. Taylor, 573 
 Boatman v. Wood, 392 
 Bobb v. Barnuin, 48 
 Bodley v. Bodley, 681 
 Bodley v. McChord, 35, 616 
 Boehm v. Wood, 798 
 Bogan v. Baughdrill, 492 
 Bogart v. Burkhalter, 601 
 Boggess v. Robinson, 151 
 Boggs v. Bodkin, 740 
 Boggs v. Hargrave, 82, 84, 86 
 Bogy v. Shoab, 540, 545, 548 
 Bohanan v. Bohanan, 559 
 Bohlcke v. Buchanan, 289 
 Bohm v. Bohm, 547 
 Bohm v. Fay, 739 
 Boiler Co. v. Gordon, 727 
 Bolen v. Lilly, 528 
 Bolgiano v. Cook, 76, 90 
 Bollis v. Beach, 520 
 Boiling v. Jones, 109, 110 
 Boiling v. Teel, 65 
 Bolton v. Branch, 163, 594 
 Bolton v. School Board, 737 
 Bond v. Montague, 506 
 Bond v. Ramsey, 112, 248, 249, 856 
 Bonham v. Walton, 244, 628 
 Bonner v. Johnston, 486 
 Bonner v. Lessly, 133 
 Booker v. Bell, 330, 358, 391, 430 
 Booker v. Meriweather, 430, 445 
 Bool v. Mix, 258 
 Boon v. McHenry, 265, 273 
 Boone v. Armstrong, 525 
 Boone v. Chiles, 180 
 Boorum v. Tucker, 80 
 Booth v. Cook, 69 
 Booth v. Ryan, 194, 634 
 Booth v. Saffold, 202, 615 
 Booth v. Starr, 363, 383, 385 
 Boothby v. Hathaway, 256, 276 
 Boothby v. Waller, 486 
 Booth royd v. Engles, 60 
 Bordeaux v. Carr, 476 
 Borden v. Borden, 781 
 Bordewell v. Colie, 371 
 Boreel v. Lawton, 281, 357 
 Boro v. Harris, 120 
 Bostick v. Winton, 119
 
 XXVI 
 
 TABLE OF CASES. 
 
 [ REFERENCES ARE TO PAGES.] 
 
 Boston v. Binney, 4G4 
 
 Boston Steamboat Co. v. Manson, 354 
 
 Bostwick v. Beach, 492 
 
 Bostwick v. Lewis, 661, 687 
 
 Bostwick v. Williams, 300, 334, 356 
 
 Boswell v. Buchanan, 544 
 
 Boswell v. Mendheim, 681 
 
 Botsford v. McLean, 566 
 
 Botsford v. Wilson, 648 
 
 Bott v. Maloy, 748 
 
 Botto v. Berges, 41 
 
 Bottorf v. Smith, 258, 269, 450 
 
 Bourg v. Niles, 776 
 
 Bowden v. Achor, 688 
 ' Bowen v. Jackson, 203 
 
 Bowen v. Mandeville, 14, 687 
 Bowen v. Thrall, 145, 409, 471 
 Bower v. Cooper, 21 
 
 Bowery N. B. v. Mayor, 727 
 Bowersock v. Beers, 792 
 Bowie v. Brahe, 828 
 Bowers v. Chaney, 90 
 Bowles v. Stewart, 236 
 Bowley v. Holway, 462, 469 
 Bowlin v. Pollock, 860 
 Bowling v. Benzer, 345 
 Bowman v. "Wittig, 52 
 Bowne v. Potter, 552 
 Bowne v. W T olcott, 280, 332 
 Boyce v. Grundy, 689, 691, 827 
 Boyce v. McCullogh, 578, 581 
 Boyd v. Bartlett, 292, 366 
 Boyd v. Hallowell, 726 
 Boyd v. Hazeltine, 343 
 Boyd v. McCullough, 669 
 Boyd v. Schlessinger, 132 
 Boyd v. Whitfield, 321 
 Boyd v. Woodbury Co., 725 
 Boyer v. Amet, 196, 507, 678 
 Boyer v. Porter, 841 
 Boykin v. Cook, 128 
 Boykin v. Rain, 67 
 Boylan v. Townley, 721 
 Boyle v. Edwards, 431 
 Boyle v. Rowand, 819 
 Boyles v. Bee, 37 
 Boyman v. Gutch, 719 
 Brackenridge v. Dawson, 99, 153 
 Bradford v. Bradford, 560 
 Bradford v. Dawson, 71 
 Bradford v. Potts, 198, 668, 671 
 Bradley v. Chase, 252 
 Bradley v. Dibrell, 360, 676, 855 
 Bradley v. Dike, 294 
 Bradley v. Mnnton, 491 
 Bradshaw v. Atkins, 570, 576 
 Bradshaw v. Crosby, 318 
 Bradshaw's Case, 275 
 Brady v. Peck, 433 
 Brady v. Spurck, 256, 259, 263, 363, 
 430 
 
 Braman v. Bingham, 317 
 
 Brandt v. Foster, 256, 258, 271, 368 
 
 391, 392, 410, 466, 650 
 Branger v. Manciet, 351 
 Branham v, San Jose, 138 
 Brannum v. Ellison, 607, 622 
 Brantley Co. v. Johnson, 444 
 Brantley v. Kee, 53 
 Brass v. Vandecar, 299, 311, 323 
 Brassfield v. Walker, 744 
 Brashier v. Gratz, 803 
 Bratton v. Guy, 269 
 Braun v. Vollmer, 747 
 Breckenridge v. Hoke, 820 
 Breckenridge v. Waters, 650, 652 
 Bree v. Holbech, 648, 649 
 Broitliaupt v. Thurmond, 20, 276 
 Brereton v. Barry, 188 
 Brett v. Marsh, 511 
 Brewer v. Fox, 163 
 Brewer v. Herbert, 774 
 Brewer v. Parker, 444 
 Brewer v. Wall, 499 
 Brewton v. Smith, 561 
 Brick v. Coster, 634, 668 
 Bricker v. Bricker, 288, 373 
 Brickhouse v. Crosby, 581 
 Bridge v. Wellington, 50 
 Bridge v. Young, 207 
 Briegel v. Moehler, 573 
 Briegel v. Muller, 559 
 Briggs v. Gillam, 189 
 Briggs v. Morse, 315 
 Brigham v. EvAns, 214, 219 
 Bright v. Boyd, 139, 223 
 Brinckerhoff v. Phelps, 211, 227 
 Brisbane v. McCrady, 312 
 Briscoe v. Mining Co., 443 
 Bristor v. McBean, 316 
 British-Am. Mtge. Co. v. Todd, 415 
 Britt v. Marks, 253 
 Brittain v. McLain, 603, 606 
 Britton v. Ruffin, 369 
 EBrizzolara v. Mosher, 484 
 Broadbelt v. Loew, 790 
 Broadway v. Buxton, 337, 558 
 Broadwell v. Phillips, 519 
 Brobst v. Brock, 137 
 Brock v. Hidy, 205 
 Brock v. O'Dell, 561, 871 
 Brock v. Southwick, 473, 819 
 Brockenbrough v. Blythe, 819, 821 
 Brodie v. Watkins, 466 
 Brokaw v. Duffy, 769 
 Bronk v. McMahon, 765 
 Bronson v. Coffin, 154, 290, 301, 323 
 Brooke v. Clarke, 816 
 Brooklyn v. Brooklyn City R. Co, 
 
 727 
 Brooklyn Park Com. v. Armstrong, 
 
 731, 785
 
 TABLE OF CASES. 
 
 XXV 11 
 
 [RKFEBENCKS ABE TO PAGES.] 
 
 Brookmau v. Kurzraan, 764 
 
 Brooks v. Black, 401, 417, 422 
 
 Brooks v. Chaplin, 57 
 
 Brooks v. Moody, 292, 315, 318, 469, 
 
 838 
 
 Brooks v. Riding, 248, 867 
 Brown v. Allen, 358, 368 
 Brown v. Bank, 288 
 Brown v. Bellows, 41, 275, 781 
 Brown v. Brodhead, 315 
 Brown v. Brown, 137 
 Brown v. Cannon, 34, 739, 742, 743 
 Brown v. Christie, 130, 134 
 Brown v. Combs, 127 
 Brown v. Connell, 512 
 Brown v. Corson, 367 
 Brown v. Covilland, 33, 34 
 Brown v. Dickinson, 370, 372, 391 
 Brown v. Eaton, 205 
 Brown v. Farrar, 69 
 Brown v. Feagin, 436 
 Brown v. Frost, 82 
 Brown v. Gammon, 35 
 Brown v. Haff, 724, 797, 805 
 Brown v. Harrison, 588 
 Brown v. Hearon, 414, 427 
 Brown v. Herrick, 251 
 Brown v. Jackson, 548 
 Brown v. Lunt, 60 
 Brown v. Manning, 238 
 Brown v, Manter, 50, 528, 529 
 Brown v. McCormick, 531 
 Brown v. McMullen, 427 
 Brown v. Metz, 377 
 Brown v. Montgomery, 238, 634 
 Brown v. Moore, 58 
 Brown v. Morehead, 657, 660 
 Brown v. Phillips, 526 
 Brown v. Reeves, 678 
 Brown v. Rice, 246 
 Brown v. Staple, 287, 380, 381, 386, 
 
 389, 520, 523, 525, 526 
 Brown v. Starke, 35 
 Brown v. Taylor, 360, 427, 428 
 Brown v. Wetter, 77, 583, 708, 764 
 Browning v. Canal Co., 375 
 Browning v. Clymer, 200 
 Browning v. Estes, 618 
 Browning v. Still well, 413 
 Browning, In re, 78, 134 
 Browning v. Wright, 147, 151, 338 
 Broyles v. Bell, 693 
 Bruce v. Luke, 545 
 Bruington v. Barber, 373 
 Brumfield v. Palmer, 616, 695 
 Brumfit v. Morton, 30 
 Brummel v. Hunt, 124 
 Bruner v. Diamond, 73 
 Bruner v. Meigs, 691, 769 
 Bruns v. Schrciber, 305, 326 
 Brush v. Ware, 172 
 
 Bryan v. Boothe, 225 
 
 Bryan v. Johnson, 473 
 
 Bryan v. Lewis, 480 
 
 Bryan v. Osborne, 195, 737 
 
 Bryan v. Ramirez, 63 
 
 Bryan v. Read, 757, 826, 830 
 
 Bryan v. Salyard, 512 
 
 Bryan v. Swain, 451, 470 
 
 Bryan v. Booth, 247, 699, 855 
 
 Bryant v. Fairfield, 127 
 
 Bryant v. Hainbrick, 814 
 
 Bryant, In re, 741, 792, 80G 
 
 Bryant v. Wilson, 150 
 
 Bryson v. Crawford, 584 
 
 Buchanan v. Alwell, 587, 639, 817 
 
 Buchanan v. Lornian, 203, 204, 588, 
 
 698, 700 
 
 Buck v. Clements, 320, 405 
 Buck v. McCaughtry, 827 
 Buck v. Waddle, 596 
 Buckels v. Mouzon, 424 
 Buckle v. Mitchell, 715 
 Bucklen v. Hasterlik, 69, 70, 206, 738 
 Buckles v. Northern Bank of Ky., 4-14 
 Buckley v. Dawson, 212 
 Buckmaster v. Grundy, 14, 207, 214 
 Buckner v. Street, 285, 342, 649 
 Buell v. Tate, 444, 459, 4G9, 633, 8-'2 
 Buford v. Guthrie, 638, 806 
 Building Co. v. Fray, 439, 538 
 Bulkley v. Hope, 27 
 Bull v. Willard, 657 
 Bullard v. Bicknell, 734 
 Bullard v. Perry, 69 
 Uullitt v. Coryell, 293 
 BuIIitt v. E. Ky Land Co., 625 
 Bullitt v. Songster, 605 
 Bullock v. Adams, 487 
 Bullock v. Beemis, 690 
 Bullock v.. Whipp, 572, 575 
 Bulow v. Witte, 91 
 Bumberger v. Clippinger, 769 
 Bumnier v. Boston, 354 
 Bumpass v. Anderson, 340 
 Bumpass v. Platner, 447, 477, 637, 
 
 848 
 
 Bumstead v. Cook, 297 
 Bundy v. Ridenour, 315 
 Burbank v. Pillsbury, 301 
 Burbridge v. Sadler, 337 
 Bnrchard v. Hubbard, 524 
 Burk v. Clements, 320, 405 
 Burk v. Hill, 209, 305, 308 
 Burk v. Serrill , 214, 225, 229, 497 
 Burk's Appeal, 497 
 liurke v. Beveridge, 531. 537 
 Burke v. Davies. 587, 613, 808, 809 
 Burke v. Elliott, 99, 101, 102 
 iiurke v. Guinmey, 38 
 Burke v. Johnson, 512 
 Burke v. Nichols, 338
 
 XXV111 
 
 TABLE OF CASES. 
 
 [REFERENCES ARE TO PAGES.] 
 
 Burke v. Eyan, 770 
 
 Burke v. Schreiber, 587 
 
 Burkett v. Mumford, 606 
 
 Burke tt v. Twyman, 519 
 
 Burkholder v. Farmers' Bank, 411 
 
 Burley v. Shinn, 595 
 
 Burlock v. Peck, 303 
 
 Burnell v. Firth, 711 
 
 Burnett v. Hamill, 90 
 
 Burnett v. McCluey, 55 
 
 Burnett v. Wheeler, 30, 190 
 
 Burnham v. Laselle, 264 
 
 Burns v. Hamilton, 109, 110, 868 
 
 Burns v. Ledbetter, 128, 137 
 
 Burr v. Greely, 358 
 
 Burr v, Hutchinson, 571 
 
 Burr v. Lamaster, 303 
 
 Burr v. Todd, 231, 441, 814 
 
 Burrill v. Jones, 156 
 
 Burroughs v. McNeill, 516 
 
 Burroughs v. Oakley, 190, 191, 748 
 
 Burrow v. Scammel, 490, 491 
 
 Burrows v. Locke, 236, 241 
 
 Burrows v. Stryker, 445 
 
 Burrows v. Yount, 206 
 
 Burruss v. Wilkinson, 371 
 
 Burston v. Jackson, 543 
 
 Burt v. Wilson, 560 
 
 Burtners v. Reran, 519, 529 
 
 Burton v. Perry, 746 
 
 Burton v. Reed, 392, 415, 535, 537 
 
 Burwell v. Brown, 30 
 
 Burwell v. Jackson, 20, 22, 36, 242, 
 
 243, 246, 251, 718, 862 
 Burwell v. Sollock, 798, 827 
 Busby v, Treadwell, 198, 443, 838, 848 
 Bush v. Adams, 404 
 Bush v. Bush, 559, 573 
 Bush v. Cole, 227 
 Bush v. Collins, 512 
 Bush v. Cooper, 348, 483, 543 
 Bush v. Hicks, 568, 571 
 Bush v. Marshall, 798 
 Bustard v. Gates, 92 
 Butcher v. Peterson, 391, 410, 493, 
 
 867 
 
 Butcher v. Rogers, 540, 545 
 Butler v. Barnes, 377, 399, 417 
 Butler v. Gale, 306, 308 
 Butler v. Miller, 650, 864 
 Butler v. O'Hear, 785 
 Butler v. Seward, 152, 526 
 Butte v. Riffe, 304, 333, 376, 445,672 
 Butterfield v. Heath, 715, 734 
 Butterworth v. Volkenning, 352 
 Buttron v. Tibbitts, 142 
 Butts v. Andrews, 722, 767 
 Byers v. Aiken, 200, 207 
 Bynes v. Rich, 263, 271, 272 
 Bynum v. Govan, 128 
 
 C. 
 
 Cabell v. Grubbs, 63 
 
 Cabler v. Jenkins, 76'Z 
 
 Cadiz v. Majors, 545 
 
 Cadmus v. Fagan, 292, 297 
 
 Cadwalader v. Tryon, 150 
 
 Cady v. Gale, 492 
 
 Cain v. Guthrie, 695 
 
 Cain v. Woodward, 129 
 
 Cake v. Peet, 568 
 
 Calcraft v. Roebuck, 185, 189, 822 
 
 Calder v. Chapman, 531 
 
 Calder v. Jenkins, 762, 778 
 
 Caldwell v. Bower, 371 
 
 Caldwell v. Kirkpatrick, 332, 356 
 
 Calhoun v. Belden, 696, 729 
 
 Calkins v. Williams, 507 
 
 Calton v. Lewis, 864 
 
 Calumet, etc., Canal Co. v. Russell, 70 
 
 Calvert v. Ash, 95 
 
 Calvert v. Sebright, 432 
 
 Cambrelleng v. Purton, 746 
 
 Cameron v. Logan, 123 
 
 Camfield v. Gilbert, 12, 14, 220, 594, 
 
 710, 717, 719, 726 
 Camp v. Morse, 208, 595, 610, 613, 
 
 807 
 
 Camp v. Pulver, 681 
 Campbell v. Brown, 113, 115 
 Campbell v. Carter, 866 
 Campbell v. Fleming, 187, 194 
 Campbell v. Johnson, 560 
 Campbell v. McCahan, 80 
 Campbell v. McClure, 597 
 Campbell v. Lowe, 121, 137 
 Campbell v. Medbury, 448 
 Campbell v. Shields, 353 
 Campbell v. Shrum, 38, 600 
 Campbell v. Whittingliarn, 236, 245, 
 
 246, 251 
 
 Candler v. Lunsford, 543 
 Canedy v. Marcy, 561, 563, 569 
 Canton Co. v. B. & O. R. Co., 191, 19i 
 Cantrell v. Mobb, 594, 627, 851 
 Capehart v. Dowery, 78, 90 
 Capital Bank v. Huntoon, 130, 131 
 Capstick v. Crane, 494 
 Carbrey v. Willis, 302 
 Carey v. Daniels, 302 
 Carey v. Guillow, 457 
 Carey v. Gundlefinger, 597 
 Carlisle v. Carlisle, 68 
 Carnahan v. Hall, 666 
 Carne v. Mitchell, 517 
 Carneal v. Lynch, 79 
 Carnes v. Swift, 519 
 Carney v. Newberry, 578, 613 
 Carpenter v. Bailey, 35 
 Carpenter v. Brown, 164, 208, 797 
 Carpenter v. Hoi comb, 19 
 Carpenter v. Lockhart, 203, 231
 
 TABLE OF CASKS. 
 
 XXIX 
 
 [UEFKHESCES AUK TO PAGES.] 
 
 Carpenter v. Schemerhorn, 542 
 
 Carpenter v. Stihvell, 130 
 
 Carpenter v. Strother, 83 
 
 Carpenter v. Thompson, 525 
 
 ( arper v. Munger, 576 
 
 Curr v. Callaglian, 238 
 
 Carr v. Dooley, 292, 294 
 
 Carr v. Roach, 164, 661 
 
 Carrico v. Froman, 608 
 
 Carrodus v. Sharp, 819 
 
 Carroll v. Carroll, 389 
 
 Carroll v. McKahary, 708 
 
 Carson v. Carson, 525 
 
 Carson v. Kelly, 473 
 
 Carson v. Mulvany, 496 
 
 Carter v. Beck, 15, 468 
 
 Carter v. Carter, 476 
 
 Carter v. Chandron, 71 
 
 Carter v. Denman, 263, 300, 377 
 
 Carter v. Morris, 755 
 
 Carter v. Morris B. & L. Asso., 733 
 
 Cartwright v. Briggs, 444, 844 
 
 Cartwright v. Culver, 633 
 
 Carver v. Howard, 137 
 
 Carver v. Jackson, 541 
 
 Carver v. La Salette, 573 
 
 Carvill v. Jacks, 234, 395 
 
 Gary v. Gundlefinger, 597 
 
 Case v. Boughton, 682 
 
 Case v, Wolcott, 212 
 
 Casey v. Lucas, 445, 638 
 
 Cashon v. Faina, 77 
 
 Cassada v. Stabel, 353 
 
 Cass Co. v. Oldham, 575 
 
 Cassell v. Cooke, 768, 783, 803 
 
 Cassidy's Succession, 397 
 
 Castleberg v. Maynard, 771 
 
 Caswell v. Black River Mfg. Co., 189, 
 
 191, 194 
 
 Caswell v. Wendell, 272 
 Cater v. Pembroke, 244 
 Cates v. Field, 422, 430 
 Cathcart v. Bowman, 291, 298, 308 
 Cathcart v. Sugenheimer, 138 
 Catlin v. Hurlburt, 255, 266, 272 
 Cattell v. Corrall, 21, 711, 715 
 Caulkins v. Harris, 414, 415 
 Causton v. Macklew, 715, 737 
 Cavanaugh v. Casselman, 452 
 Cavanaugh v. McLaughlin, 778 
 Ceconni v. Rodden, 361 
 Ceconni v. Rhodes, 398 
 Cent. App. Co. v. Buchanan, 349 
 Chabot v. Winter Park Res. Co., 487 
 Chace v. Gregg, 524 
 Chace v. Hinman. 282 
 Chamberlain v. Amter, 596 
 Chamberlain v. Lee, 802, 807 
 Chamberlain v. McClung, 523 
 Chamberlain v. Meeder, 525, 543 
 Chamberlain v. Preble, 425, 426 
 
 Chambers v. Cochran, 123, 125 
 Chambers v. Cox, 445 
 Chambers v. Jones, 139 
 Chambers v. Pleak, 371 
 Chambers v. Smith, 269, 366 
 Chambers v. Tulane, 693, 769, 774 
 Champion v. Brown, 481 
 Champlin v. Dotson, 506, 843, 844 
 Champlin v. Layton, 247, 870, 871 
 Champlin v. Williams, 512 
 Chandler v. Brown, 362, 366 
 Chandler v. Spear, 61 
 Chapel v. Bull, 320 
 Chaplain v. Southgate, 353 
 Chaplin v. Briscoe, 449 
 Chapman v. Brooklyn, 122 
 Chapman v. Eddy, 609 
 Chapman v. Holmes, 263, 330, 431 
 Chapman v. Kimball, 263, 290 
 Chapman v. Lee, 163, 165, 207, 728. 
 
 741 
 
 Charles v. Dana, 589 
 Charleston v. Blohme, 78, 84, 87, 786 
 Charman v. Tatum, 325 
 Chartier v. Marshall, 230, 480 
 Chase v. Chase, 760 
 Chase v. Palmer, 44 
 Chase v. Peck, 626 
 Chase v. Weston, 380 * 
 Chastain v. Staley, 151 
 Chatfield v. Williams, 611 
 Chauncey v. Leominster, 773 
 Chauvin v. Wagner, 65, 265, 270, 440, 
 
 521, 540 
 
 Cheesman v. Thome, 737, 822 
 Cheever v. Minton, 90 
 Chenault v. Thomas, 357, 424, 434 
 Cheney v. Straube, 357, 368, 392,433 
 Cherry v. Davis, 615, 618, 741 
 Chesman v. Cummings, 722 
 Chester v. Rumsey, 70 
 Chew v. Tome, 746, 773 
 Chesterfield v. Jansen, 187 
 Chicago v. Rollins, 428 
 Chicago, Kans. & Neb. R. Co. v. 
 
 Cook, 116 
 
 Childs v. Alexander, 476, 477 
 Childs v. Lockett, 616 
 Childs v. McChesney, 542 
 Chinn v. Healc, 488, 492 
 Chitwood v. Russell, 339 
 Chopin v. Pol let, 773 
 Chouteau v. Allen. 63 
 Chrisman v. Partee, 807, 808 
 Christian v. Cabell, 36, 189, 805, 807 
 Christian v. Stanley, 826 
 Christman v. Colbert, 559, 576 
 Christy v. Ogle, 256, 259, 299, 324, 
 
 419 
 
 Christy v. Reynolds, 673 
 Church v. Brown, 147
 
 XXX 
 
 TABLE OF CASES. 
 [REFERENCES ARE TO PAGES.] 
 
 Church v. Shanklin, 726 
 
 Churchill v. Moore, 67 
 
 Citizens' Bank v. Freitag, 122, 124 
 
 Clagett v. Crall, 240 
 
 Clanton v. Burges, 447, 645 
 
 Clapp v. Herdmann, 256, 270, 405 
 
 Clare v. Lamb, 652 
 
 Clare v. Maynard, 212 
 
 Clark v. Baird, 14, 235 
 
 Clark v. Baker, 525, 541, 549 
 
 Clark v. Briggs, 695, 696 
 
 Clark v, Clark, 510 
 
 Clark v. Cleghorn, 839 
 
 Clark v. Conroe, 258, 3GO, 375, 378 
 
 Clark v. Croft, 589 
 
 Clark v. Drake, 572 
 
 Clark v. Fisher, 28, 290, 299, 407 
 
 Clark v. Hardgrove, 461, 493, 849 
 
 Clark v. Harper, 360 
 
 Clark v. Hutzler, 764 
 
 Clark v. Jacobs, 626 
 
 Clark v, Johnson, 380 
 
 Clark v. Lambert, 519 
 
 Clark v. Lockwood, 127 
 
 Clark v. Lyons, 148 
 
 Clark v. Mumford, 430, 474 
 
 Clark v. Parr, 392 
 
 Clark v. Perry, 315 
 
 Clark v. Post, '134, 658 
 
 Clark v. Redman, 34, 47, 145, 148, 777 
 
 Clark v. Seirer, 497 
 
 Clark v. Snelling, 444 
 
 Clark v. Swift, 268 
 
 Clark v. Weiss, 202, 604, 804 
 
 Clark v. Whitehead, 156, 366, 399, 
 
 444 
 
 Clark v. Zeigler, 298 
 Clarke v. Cleghorn, 839 
 Clarke v. Elliott, 486 
 Clarke v. Locke, 15, 209, 215, 618, 
 
 695 
 
 Clarke v. McAnulty, 356, 364, 402 
 Clarke v. Priest, 311, 440 
 Clarke v. Scudder, 270 
 Clarke v. Wilson, 133 
 Clarkson v. Skidmore, 407 
 Clason v. Bailey, 44 
 Claxton v. Gilben, 386 
 Claycomb v. Munger, 363, 370, 424 
 Claypoole v. Houston, 559 
 Clee v. Seaman, 552 
 Clegg v. Lemessurier, 55 
 Clemens v. Loggins, 74, 200, 201, 615, 
 
 792 
 
 Clement v. Bank, 258, 340, 382 
 Clement v. Burtis, 777 
 Clement v. Collins, 365, 424, 432 
 Cleveland v. Bergen B, & L. Co., 826 
 Cleveland v. Flagg, 527 
 Cleveland Park Co. v. Campbell, 288, 
 
 293 
 
 Click v. Green, 214, 347, 391 
 
 Clinch River Co. v. Kurth, 58, 66 
 
 Cline v. Catron, 91 
 
 Clinton v. Shugart, 597 
 
 Clive v. Beaumont, 22 
 
 Clopton v. Bolton, 611 
 
 Clore v. Graham, 291 
 
 Close v. Stuyvesant, 716 
 
 Close v. Zelf, 657, 659, 673 
 
 Clouse's Appeal, 767, 770 
 
 Clowes v. Higginson, 32 
 
 Clute v. Robinson, 35 
 
 Coal Creek Mining Co. v. Ross, 545 
 
 Cobb v. Hatfield, 14 
 
 Coble v. Wellborn, 373 
 
 Coburn v. Haley, 624, 731 
 
 Coburn v. Litchfield, 297, 318 
 
 Cochran v. Guild, 292, 293, 297 
 
 Cochran v. Pascault, 438, 439, 538 
 
 Cocke v. Taylor, 215 
 
 Cockey v. Cole, 90, 93 
 
 Cockrell v. Bane, 343 
 
 Cockrell v. Proctor, 273, 275 
 
 Cockroft v. Railroad Co., 213, 220 
 
 Codman v. Jenkins, 464 
 
 Codrington v. Denham, 353 
 
 Coe v. Harahan, 153 
 
 Coe v. N. J. Mid. R. Co., 557, 563 
 
 Coe v. Persons Unknown, 548 
 
 Coffee v. Newson, 623, 680, 823, 829 
 
 Coffin v. Cook, 116 
 
 Coffman v. Huck, 414 
 
 Coffman v. Scoville, 845 
 
 Cogan v. Cook, 35 
 
 Cogel v. Raph, 170, 180, 182 
 
 Cogswell v. Boehm, 187, 824 
 
 Cogwell v. Lyons, 222 
 
 Cohen v. Woolard, 458, 639 
 
 Coit v. McReynolds, 258. 260, 261 
 
 Colbert v. Moore, 109, 111 
 
 Colby v. Osgood, 350, 440 
 
 Colcord v. Leddy, 808 
 
 Colcord v. Swan, 542 
 
 Cole v. Gibbons, 187 
 
 Cole v. Hawes, 339 
 
 Cole v. Hughes, 303 
 
 Cole v. Johnson, 138 
 
 Cole v. Justice, 443, 455, 510 
 
 Cole v. Kimball, 265, 311, 318 
 
 Cole v. Lee, 332, 372 
 
 Cole v. Raymond, 540 
 
 Coleman v. Bank, 191, 603, 798 
 
 Coleman v. Clark, 422 
 
 Coleman v. Coleman, 558 
 
 Coleman v. Floyd, 62o 
 
 Coleman v. Hart, 657 
 
 Coleman v. Insurance Co., 470 
 
 Coleman v. Lyman, 265 
 
 Coleman v. Rowe, 446, 603, 611 
 
 Coleman v. Sanderlin, 605
 
 TABLE OF CASES. 
 
 [REFEBEXCES ABE TO PAGES.] 
 
 XXXi 
 
 Collier v. Cowger, 321, 359, 372, 414. 
 
 426 
 
 Collier v. Gamble, 265, 208, 273, 642 
 Collingwood v. Irwin, 285, 403, 429, 
 
 430 
 
 Collins v. Baker, 428 
 Collins v. Clayton, 848 
 Collins v. Delashmutt, 35 
 Collins v. Miller, 128 
 Collins v. Smith, 492, 716 
 Collins v. Thayer, 596, 619 
 Collis v. Cogbill, 364, 427 
 Colton v. Seavy, 62 
 Colton v. Wilson, 189, 715 
 Colver v. Clay, 495, 502 
 Colvin v. Schell, 420, 661 
 Colwell v. Hamilton, 35, 589 
 Colyer v. Thompson, 194, 695, 858 
 Combs v. Scott, 214, 218 
 Combs v. Tarlton, 213, 222 
 Comegys v. Davidson, 468 
 Comer v. Walker, 820 
 Comings v. Little, 298, 316, 318, 347 
 Commercial Bank v. Martin, 93 
 Common School D. v. Conrad, 445 
 Commonwealth v. Andre, 158, 543 
 Commonwealth v. Dickinson, 126 
 Commonwealth v. McClanachan, 650 
 Commonwealth v. Pejepscut, 158, 543 
 Compton v. Nuttle, 481 
 Comstock v. Ames, 236 
 Comstock v. Crawford, 116 
 Comstock v. Smith, 526, 544, 546 
 Comstock v. Son, 336, 861 
 Conaway v. Gore, 557, 571 
 Concord Bank v. Gregg, 152, 236, 619, 
 
 683 
 
 Condit v. Bigelow, 522 
 Conger v. Weaver, 213 
 Conger v. Mericles, 571 
 Congregation v. Miles, 616, 667, 695 
 Conklin v. Hancock, 411 
 Conley v. Doyle, 15 
 Conley v. Dibber, 788 
 Conley v. Finn, 738 
 Connell v. McLean, 213, 216, 217 
 Connelly v. Peirce, 164, 208 
 Connelly v. Phila, 129 
 Connor v. Eddy, 446, 526 
 Connor v. Huggins, 739 
 Connor v. McMurray, 528 
 Connor v. Wells, 558 
 Conrad v. Trustees, 392, 394 
 Contee v. Lyons, 95, 96, 172, 769 
 Converse v. Blumrich, 579 
 Conway v. Case, 34 
 Conwell v. Clifford, 249 
 Coogan v. Ockershausen, 771 
 Cook v. Bean, 793 
 Cook v. Curtis, 402, 430 
 Cook v. Fuson, 326 
 
 Cook v. Jackson, 472 
 
 Cook v. Mix, 462, 403 
 
 Cooke v. Husband, 571 
 
 Cooley v. Rankin, 440, 038, 645 
 
 Coombs v. Lane, 111 
 
 Coombs v. O'Neal, 773 
 
 Coons v. North, 134 
 
 Cooper v. Bloodgood, 354, 447 
 
 Cooper v. Burns, 542 
 
 Cooper v. Denne, 731, 816, 817 
 
 Cooper v. Emery, 161 
 
 Cooper v. Cranberry, 380 
 
 Cooper, In re, 429 
 
 Cooper v. Phibbs, 863, 874 
 
 Cooper v. Reynolds, 94, 95 
 
 Cooper v. Singleton, 472, 601, 723 
 
 Cooper v. Sunderland, 103 
 
 Cooper v. Watson, 426 
 
 Cope v. Williams, 615, 629 
 
 Copeland v. Copeland, i87 
 
 Copeland v. Laun, 613 
 
 Copper v. Wells, 489 
 
 Coray v. Matthewson, 190, 724 
 
 Corbally v. Hughes, 506 
 
 Corbett v. Dawkins, 109, 648 
 
 Corbett v. McGregor, 855 
 
 Corbett v. Norcross, 55 
 
 Corbett v. Nutt, 769 
 
 Corbett v. Shulte, 191 
 
 Corcoran v. White, 485, 502 
 
 Core v. Strickler, 79 
 
 Core v. Wigner, 737, 817 
 
 Corn v. Bass, 303, 779 
 
 Cornell v. Andrews, 704, 722, 767 
 
 Cornell v. Jackson, 264, 339, 410,537 
 
 Cornish v. (iapron, 339 
 
 Cornwall v. Williams, 480 
 
 Cornwell v. Clifford, 444 
 
 Corrall v. Cattell, 817 
 
 Corson v. Mulvany, 496 
 
 Corus' Case, 352 
 
 Corwin v. Benham, 77, 118 
 
 Corwith v. Griffing r 97 
 
 Coster v. Monroe Mfg. Co., 153, 331, 
 
 837, 838 
 
 Costigan v. Hastier, 481 
 Costigan v. Hawkins, 860 
 Cotes v. Raleigh, 828 
 Cotton v. Ward, 537, 766, 811 
 Cottrell v. Cottrell, 154 
 Cottrell v. Watkins, 737 
 Coudert v. Say re, 301 
 Coughenour v. Swift, 667 
 Coulson v. Wing, 116 
 Courtright v. Courtright, 563 
 Covell v. Cole, 492 
 Coverly v. Burrell, 30 
 Coves v. Hallahan, 777 
 Cowan v. Kane, 300, 492, 497, 778 
 Cowdrey v. Coit, 371 
 Cowdrey v. Cuthbert, 506
 
 XXX11 
 
 TABLE OF CA 
 
 [EEFEKZNCES ABE TO PAGES.] 
 
 Cowen v. Withrow, 130 
 
 Cowley r. Watts, 21 
 
 Cox v. Coven ton, 774 
 
 Cox v. Cox, 91, 737, 752 
 
 Cox v. Davis, 88 
 
 Cox v. Henry, 214, 230, 391, 404, 414, 
 
 415, 421* 451, 660, 673 
 Cox v. Johnson, 506 
 Cox v. Middleton, 21 
 Cox v. Strode, 213, 271, 395, 430 
 Coyne v. Souther, 119 
 Crabtree v. Levings, 47, 154 
 Craddock v. Shirley, 189, 195, 800 
 Craft v. La Tourette, 625 
 Craft v. Merrill, 130 
 Craig v. Donovan, 269 
 Craig v. Heis, 292, 447 
 Craig v. Lewis, 302, 552 
 Craig v. Martin, 804 
 Cramer v. Benton, 544 
 Cramer v, Mooney, 796 
 Crane v. Collenbaugh, 368 
 Craven v. Clay, 370 
 Crawford v. Kebler, 243, 590, 690 
 
 784 
 
 Crawford v. Murphy, 645, 668 
 Crawford v. Pendleton, 360 
 Crawley v. Timberlake, 724 
 Crayton v. Munger, 112 
 Creigh v. Boggs, 822 
 Creighton v. Pringle, 568 
 Crenshaw v. Smith. 410 
 Creps v. Baird, 118 
 Crippen v. Bauinrs. 570 
 Cripps v. Read, 152, 648 
 Crisfield v. Storr, 336, 357, 377, 401, 
 
 417, 422, 434 
 
 Critchett v. Cooper, 35, 205 
 Critchfield v. Kline, 559 
 Crittenden v. Craig, 235 
 Crittenden v. Posey, 215, 415 
 Crockett v. Crocke'tt, 576 
 Croft v. Thornton, 519 
 Cronister v. Cronister, 673 
 Cronk v. Trumble, 200 
 Crocker v. Jewell, 380, 381 
 Crop v. Norton, 480 
 Crosby v. Thedford, 754 
 ("rosier v. Acer, 865 
 Cross v. Devine, 224 
 ( 'ross v. Freeman, 39 
 Cross v. Martin, 538 
 doss v. Noble, 298, 652, 666, 667 
 Cross v. Robinson, 385, 525 
 Cross v. Zane, 140 
 Crosse v. Young, 352 
 Crotzer v. Russell, 675 
 ('router v. Crouter, 753 
 Crowder, Ex parte. 153 
 Crowe v. Ballard. 188 
 Crowley v. Lumber Co., 300 
 
 Crowell v. Packard, 649 
 
 Croxall v. Sherrard, 737 
 
 Cram v. Cotting, 382 
 
 Cram v. Loud, 561 
 
 Crutcher v. Stump, 356 
 
 Crutchfield v. Danilly. 238, 244 
 
 Crutchfield v. Hewett, 761 
 
 Culbertson v. Blanc-hard, 624, 856 
 
 Culler v. Motzer, 668 
 
 Cullum v. Br. Bank, 242, 244, 443, 
 
 685, 843 
 
 Culver v. Avery, 13, 661, 687 
 Cumming's Appeal, 121, 126 
 Cummings v. Freer, 576 
 Cummings v. Harrison, 429 
 Cummings v. .Holt, 351 
 Cummins v. Boyle, 453, 704, 839 
 Cummins v. Kennedy, 361, 381, 391, 
 
 395 
 
 Cunningham v. Anderson, 115 
 Cunningham v. Blake, 767 
 Cunningham v. Buck, 129 
 Cunningham v. Depew, 481, 489 
 Cunningham v. Fithian, 194 
 Cunningham v. Gwinn, 589 
 Cunningham v. Knight, 377 
 Cunningham v. Sharp, 35, 732, 741, 
 
 767, 827 
 
 Curd v. Davis, 458 
 Curling v. Flight, 819 
 Curling v. Shuttleworth, 708 
 Curran v. Banks, 506 
 Currie v. Cowles, 488 
 Currie v. Xind, 734 
 Curtis v. Deering, 360, 433 
 Curtis v. Gooding, 138 
 Curtis v. Hawley, 390, 727 
 Cushing v. Spalding, 768 
 Cushman v. Blanchard, 419 
 Cuthbertson v. Irving, 387 
 Cutter v. Waadingham, 552 
 Cutts v. Thodey, 187 
 Cypress Lumber Co. v. Tiller, 494 
 
 Daggett v. Reas, 272, 356 
 
 Dahl v. Pross, 505 
 
 Dahle v. Stakke, 289, 318, 463. 469 
 
 Daisy Realty Co. v. Brown, 306 
 
 Dail v. Moore, 58, 61 
 
 Daily v. Litchfield, 704 
 
 Dalby v. Pullen, 805 
 
 Dale v. Shively, 256, 272, 404, 420, 
 
 421 
 
 Dale v. Sollett, 596 
 Dallmyer v. Ferguson, 738 
 Dalton v. Bowker, 392 ? 428, 430 
 Dalton v. Taliaferro, 146, 281 
 Daly v. Bernstein. 600, 601 
 Dalzell v. Crawford, 710, 752
 
 TABLE OF CASES. 
 
 [REFERENCES ABB TO PAGES.] 
 
 Damra v. Moors, 571 
 
 Dana v. Goodfellow, 282 
 
 Dane v. Derber, 559, 506 
 
 Danforth v. Smith, 274, 397 
 
 Daniel v. Baxter, 591 
 
 Daniel v. Hollingshed, 180 
 
 Daniel v. Leitch, 78, 80, 92 
 
 Daniel v. Smythe, 782 
 
 Daniell v. Shaw, 710, 778 
 
 Daniels v. Newton, 19 
 
 Danly v. Rector, 118 
 
 Darlington v. Hamilton, 29, 777 
 
 Darrow v. Cornell, 733 
 
 Darrow v, Horton, 805 
 
 Dart v. Barbour, 573 
 
 Dart v. Dart, 545 
 
 Dart v. McQuilty, 494 
 
 Darvin v. Hillfield, 82 
 
 Daughtry v. Knolle, 337, 866 
 
 Davar v. Caldwell, 764 
 
 Davenport v. Bartlett, 363, 364, 370, 
 
 374 
 
 Davenport v. Latimer, 195, 481 
 Davenport v. Scovil, 571 
 Davenport v. Whisler, 676 
 Davidson v. Cox, 263, 386 
 Davidson v. Keep, 580 
 Davidson v. Moss, 236, 855 
 Davidson v. Van Pelt, 36 
 Davies v. Hughes, 109 
 Davis v. Agnew, 524 
 Davis v. Bean, 469 
 Davis v. Beasley, 58 
 Davis v. Evans, 194 
 Davis v. Gaines, 137 
 Davis v. Heard, 251, 252, 691, 858 
 Davis v. Henderson, 36, 148 
 Davis v. Hunt, 121 
 Davis v. Lewis, 226 
 Davis v. Logan, 359, 841 
 Davis v. Lyman, 256, 259, 263, 31 i, 
 
 338 
 
 Davis v. Murray, 126, 477 
 Davis v. Parker, 496 
 Davis v. Rogers, 573, 575 
 Davis v. Shields, 44 
 Davis v. Smith, 351, 365, 392, 427 
 Davis v. Symonds, 581 
 Davis v. Tollemache, 439, 515 
 Davis v. Watson, 616, 827 
 Davis v. Wilbourne, 424, 430 
 Davison v. De Freest, 460 
 Davison v. Perrine, 696 
 Dawes v. Betts, 30 
 Dawson v. Shirley, 145 
 Day v. Browne, 155. 
 Day v. Burnham, 149 
 Day v. Chism, 361, 433 
 Day v. Kingsland, 743, 746, 761 
 Day v. Nason, 220 
 Dayton v. Citizens' Nat. Bank, 575 
 
 Dayton v. Dusenberry, 843, 845 
 
 Dayton v. Melick, 460 
 
 Deacon v. Doyle, 307 
 
 Deal v. Dodge, 444, 461, 635, 644, 695 
 
 Dean v. Morris, 123 
 
 Dearth v. Williamson, 35 
 
 De Chaumont v. Forsyth, 381 
 
 Deck's Appeal, 298 
 
 Decker v. Schulze, 241, 854 
 
 De Courcey v. Barr, 59 
 
 Deery v. Cray, 65 
 
 De Forest v. Leete, 322, 320 
 
 De Haven's Appeal, 77 
 
 Deichman v. Deichman, 205 
 
 Lie Jarnatt v. Cooper, 506, 574 
 
 De Kay v. Bliss, 400 
 
 Delafield v. James, 726 
 
 Delavan v. Duncan, 203 
 
 Delavergne v. Norris, 315, 317, 469 
 
 De Long v. Spring Lake Co., 304, 415 
 
 Demarest v. Friedman, 746 
 
 Demarest v. Hopper, 545 
 
 Demarett v. Bennett, 472, 474, 847 
 
 Demars v. Koehler, 299 
 
 Demmy's Appeal, 116 
 
 Den v. Demarest, 542 
 
 Den v. Geiger, 67, 259 
 
 Den v. Hamilton, 71 
 
 Den v. Young, 121 
 
 Denn v. Cornell, 541 
 
 Denne v. Light, 21 
 
 Denning v. Cresson, 253 
 
 Dennis v. Heath, 365, 371, 446, 464 
 
 Dennis v. Strasburger, 200, 792, 794, 
 
 795 
 
 Dennison v. Ely, 53 
 Denny v. Wicklifl'e, 693, 723, 842 
 Denson v. Love, 370, 466 
 Denston v. Morris, 252, 846 
 Dentler v. Brown, 510, 512, 668 
 Dentler v. O'Brien, 809 
 DePeyster v. Murphy, 290, 292, 293, 
 
 295 
 
 Derr v. Wilson, 92 
 De Saussuer v. Bollman, 761 
 Des Moines, etc., R. E. Co. v. Beale, 
 
 164 
 
 Desverges v. Willis, 305, 836 
 Detroit R. Co. v, Griggs, 843 
 Deverell v. Bolton, 134, 187, 188 
 Devin v. Hendershott, 385 
 Devin v. Himer, 219 
 Devine v. Lewis, 402 
 Devine v. Rawle, 292 
 Devling v. Little, 39 
 Devore v. Sunderland, 265, 209 
 Devour v. Johnson, 430 
 Dewey v. Campau, 64, 65 
 DeWolf v. Hayden, 540 
 DeWolf v. Mallet, 123 
 Dexter v. Manly, 343, 433, 435, 437
 
 XXXIV 
 
 TABLE OF CASES. 
 
 [REFERENCES ABE TO PAGES.] 
 
 Dial v. Grain, 581 
 Dickinson v. Colgrove, 737 
 Dickerson v. Davis, 70 
 Dickins v. Shepherd, 391, 410 
 Dickinson v. Dickinson, 773 
 Dickinson v. Glenney, 555, 575, 576 
 Dickinson v. Hoomes, 146, 148, 151, 
 
 311, 339, 379, 387 
 Dickinson v. Talbot, 519, 539 
 Dickinson v. Voorhees, 337, 667 
 Dickson v. Desire, 265, 269, 401 
 Diggle v. Boulden, 796 
 Diggs v. Kirby, 233, OoO, 684 
 Dikeman v. Arnold, 778 
 Dill v. Noble, 727 
 Dill v. Wareham, 654 
 ^illahunty v. R. Co., 368, 405, 406 
 Dillingham v. Estill, 452 
 Dimmick v. Lockwood, 321, 322, 397 
 Disbrow v. Folger, 772, 758 
 Disbrow v. Harris, 452 
 Dix v. School District, 448 
 Dixon v. Astley, 189 
 Dixon v. Rice, 498 
 Dixon v. Robbins, 62 
 Doan v. Mauzy, 487 
 Doane v. Willcutt, 439, 542, 546 
 Dobbins v. Brown, 334, 354, 355, 356 
 Dobbs v. Norcross, 732 
 Doctor v. Hellberg, 494 
 Dod v. Paul, 557 
 Dodd v. Nelson, 128 
 Dodd v. Seymour, 34, 150, 155 
 Dodd v. Templeman, 106 
 Dodd v. Toner, 467 
 Dodd v. Williams, 531 
 Dodson v. Cooper, 512 
 Doe v. Anderson, 100 
 Doe v. Dowdall, 534 
 Doe v. Oliver, 531, 532 
 Doe v. Quinlan, 519 
 Doe v. Smith, 130 
 Doe v. Stanion, 20, 28 
 Doebler's Appeal, V21, 766 
 Doggett v. Emerson, 699 
 Doherty v. Dolan, 12, 214 
 Doll v. Pizer, 758 
 
 Dom. Bldg. Asso. v. Guardiano, 167 
 Dominick v. Michael, 542, 817 
 Donaldson v. Waters, 615 
 Donlon v. Evans, 20, 392 
 Donnell v. Thompson, 274, 300, 324, 
 
 334, 404 
 
 Donner v. Redenbaugh, 229 
 Donohoe v. Emery, 156, 347 
 Donovan v. Frisker, 695 
 Donovan v. Twisl, 525 
 Doody v. Hollwedel, 765 
 Doom v. Curran, 392, 422 
 Doremus v. Bond, 456 
 Dorincturt v. La Croix, 214 
 
 Dorr v. Steichen, 572 
 
 Dorsey v. Dashiell, 282 
 
 Dorsey v. Gassaway, 544 
 
 Dorsey v. Hobbs, 589 
 
 Dorsey v. JacKman, 668, 672 
 
 Dorsey v. Kendall, 100 
 
 Doswell v. Buchanan, 532, 533 
 
 Dotson v. Bailey, 580, 700 
 
 Dougald v. Dougherty, 520 
 
 Dougherty v. Duval, 379, 401 
 
 Doughty v. Cottraux, 472 
 
 Douglas v. Lewis, 342 
 
 Douglas v. Scott, 529 
 
 Doupe v. Genin, 353 
 
 Dow v. Lewis, 154, 157 
 
 Dowdney v. Mayor, 296 
 
 Dowdy v. McArthur, 172 
 
 Downer v. Fox, 512 
 
 Downer v. Smith, 256, 258, 318, 41) 
 
 Downey v. Seib, 721 
 
 Dowson v. Solomon, 188, 191, 821 
 
 Doyle v. Brundred, 391 
 
 Doyle v. Hord, 337, 357, 865 
 
 Drake v. Baker, 213, 21(i, 217, 228, 
 
 391 
 
 Drake v. Barton, 20, 145 
 Drake v. Cockroft, 353 
 Drake v. Collins, 503 
 Drake v. Shiels, 22 
 Drennere v, Boyer, 19i), 611 
 Dresbach v. Stein, 76, 78 
 Dresel v. Jordan, 73, 765, 792, 807 
 Drew v. Clark, 871, 875 
 Drew v. Corporation, 785 
 Drew v. Pedlar, 204 
 Drew v. Smith, 405 
 Drew v. Towle, 363, 391, 446, 467 
 Driggin v. Cassaday, 98, 100 
 Driggs v. Dwight, 211 
 Drinker v. Byers, 660, 670, 673 
 Driver v. Spence, 12 / 
 Droge v. Cree, 720, 769 
 Drury's Case, 127 
 Drury v. Connor, 492 
 Drury v. Imp. Co., 286 
 Drury v. Shumway, 365, 398 
 Drysdale v. Mace, 28 
 Dubay v. Kelly, 410, 418 
 Dubois v. James, 798 
 Dutchess of Kingston's Case, 525 
 Dudley v. Bryan, 605 
 Dudley v. Cadwell, 529 
 Dudley v. Folliott, 351 
 Duff v. Wilson, 366 
 Duffield v. Wilson, 587 
 Duffield v. Scott, 418, 426 
 Duffy v. Sharp, 292 
 Dufief v. Boykin, 37, 589 
 Dufour v. Cambranc, 136 
 Duke- v. Barnett, 28, 29 
 Duluth Land Co. v. Klovdahl, 794
 
 TABLE OF CASES. 
 
 [REFERENCES ARE TO PAGES.] 
 
 xxxv 
 
 Dumars v. Miller, 213, 217 
 
 Dunghee v. Geoghegan, 215 
 
 Dunbar v. Tredennick, 188 
 
 Duncan v. Blair, 284 
 
 Duncan v. Cafe, 188, 190 
 
 Duncan v. Charles, 206 
 
 Duncan v. Gainey, 138, 140 
 
 Duncan v. Jeter, 694, 696 
 
 Duncan v. Lane, 446 
 
 Duncanson v. Manson, 99 
 
 Duncan v. McCullough, 523 
 
 Duncan v. Tanner, 231 
 
 Dundas v. Hitchcock, 67 
 
 Dundy v. Chambers, 59 
 
 Dunfee v. Childs, 90 
 
 Dunham v. New Britain, 568 
 
 Dunkleberger v. Whitehill, 372 
 
 Dunklee v. Wilton R. Co., 309 
 
 Dunlap v. Dougherty, 57 
 
 Dunlap v. Hepburn, 692 
 
 Dunn v. Frazier, 122, 140 
 
 Dunn v. Huether, 778 
 
 Dunn v. Mills, 188, 191, 615 
 
 Dunn v. White, 291, 443, 455 
 
 Dunnica v. Sharp, 213, 222, 392 
 
 Dunning v. Leavitt, 447, 461 
 
 Dupre v. Thompson, 561, 575 
 
 Depuy v. Roebuck, 363 
 
 Durand v. Williams, 263 
 
 Durham v. Hadley, 20, 788, 797 
 
 Duroe v. Evans, 283 
 
 Durrett v. Piper, 300 
 
 Dussaume v. Burnett, 58 
 
 Dustin v. Newcomer, 212 
 
 Dutch v. Warren, 596 
 
 Dutch Church v. Mott, 755. 798, 804 
 
 D'Utricht v. Melchoir, 679, 864 
 
 Dutton v. Gerish, 283 
 
 Duval v. Craig, 156, 282, 326, 339, 
 
 360 
 
 Duval 1 v. Parker, 709, 740, 743 
 Dwight v. Cutler, 20, 35, 145, 148. 
 
 150, 276, 594, 704, 749 
 Dwight's Case, 126 
 Dwinel v. Veazie, 153 
 Dworsky v, Arndstein, 746, 758 
 Dye v, Montague, 207, 208 
 Dye v. Thompson, 519 
 Dyer v. Britton, 371 
 Dyer v. Dorsey, 229, 231 
 Dyer v. Ladomus, 292 
 Dyer v. Wightman, 354 
 Dyett v. Pendleton, 352 
 Dyker, M. L. & I. Co. v. Cook, 706, 
 
 781 
 
 E. 
 
 Eads v. Murphy, 455, 615 
 
 Eames v. Der Germania Turn Verein. 
 
 185, 697 
 Eames v. Savage, 15 
 
 Earl v. Campbell, 589, 732, 781 
 
 Earle v. Bickford, 654 
 
 Earle v. De Witt, 649, 657, 676, 678 
 
 Earle v. Middleton, 399, 416 
 
 Early v. Douglas, 7o6 
 
 Early v. Garrett, 238,' 685 
 
 Easter v. Sever in, 561, 563 
 
 Easton v. Montgomery, 20, 163, 160, 
 
 592, 794, 795, 800, 805 
 East Tenn. Nat. Bank v. First Nat. 
 
 Bank, 438, 515, 684 
 Eaton v. Chesbrough, 294 
 Eaton v. Eaton, 575 
 Eaton v. Lyman, 265, 276, 315, 317, 
 
 321, 427 
 
 Eaton v. Tallmadge, 448 
 Eberhardt v. Miller, 741 
 Ebling v. Dwyer, 714, 722, 756 
 Eby v. Eby, 34, 35 
 Eby v. Elder, 671, 672 
 Eccles v. Timmons, 86 
 Edde v. Cowan, 141 
 Eddleman v. Carpenter, 521 
 Eddy v. Chace, 310 
 Eden v, Blake, 32 
 Edgerton v. Page, 353 
 Edmison v. Zaborowski, 795 
 Edmonds v. Cochran, 203 
 Edington v. Nix, 318, 4*6, 639 
 Edwards v. Bodine, 447, 459, 838 
 Edwards v. Clark, 291, 298, 299 
 Edwards v. Davenport, 525, 541 
 Edwards v. McLeay, 233, 238, 239, 
 
 680, 684 
 
 Edwards v. Morris, 447, 738 
 Edwards v. Roys, 259 
 Edwards v. Strode, 607 
 Edwards v. Van Bibber, 192, 733 
 Edwards v. Varick, 544 
 Edwards v. Wickwar, 28 
 Egan v. Yeaman, 315, 316, 844 
 Eggers v. Busch, 706, 810 
 Ela v. Card, 271, 409 
 Elam v. Donald, 14 
 Elder v. Chapman, 579, 793 
 Elder v. First Nat. Bank, 460 
 Elder v. McCloskey, 737 
 Elder v. True, 398 
 Elfenheim v. Von Hafen, 14, 594 
 Eller v. Moore, 301, 360 
 Elkin v. Timlin, 661 
 Elliot v. Boaz, 624, 625, 028, 696 
 Elliot v. Fiersol, 72, 98 
 Elliot v. Santtey, 424 
 Elliott v. Blair, 806 
 Elliott v. Osborn, 61 
 Elliott v. Sackett, 567 
 Elliott v. Thompson, 391, 404, 447 
 Ellis v. Anderton, 31, 86, 595, 601 
 Ellis v. Croselsy, 367, 406, 552, 675 
 Ellis v. Ellis, 138
 
 XXXVI 
 
 TABLE OF CASES. 
 
 [REFEBENCES ABE TO PAGES.] 
 
 Ellis v. Hoskins, 612 
 
 Ellis v. Lockett, 73, 726 
 
 Ellis v. Welch, 351, 354, 355 
 
 Else v. Kennedy, 575 
 
 Ely v. Hergesell, 380, 386 
 
 Emerson v. Hfles, 826 
 
 Emerson v. Minot, 356 
 
 Emerson v. Hoof, 802 
 
 Emerson v. Samson, 520 
 
 Emerson v. Wash. Co., 648 
 
 Emery v. Grocock, 712, 714, 737 
 
 Emery v. Pickering, 818 
 
 Emmons v. Moore, 238 
 
 Engel v. Fitch, 210, 21^, 214, 229 
 
 England v. Clark, 112, 118, 122 
 
 England v. Garner, 90, 97, 107 
 
 Englander v. Rogers, 202, 795 
 
 English v. Benedict, 235, 855 
 
 English v. Thompson, 638, 848 
 
 Ennis v. Leach, 153 
 
 Ensign v. Colt, 301, 324, 362 
 
 Erdman v. Corse, 737 
 
 Erickson v. Bennett, 223, 224, 225 
 
 Ernst v. Parsons, 268, 312 
 
 Erwin v. Myers, 492, 702 
 
 Espy v. Anderson, 150, 163, 276, 748, 
 
 786, 787 
 Estabrook v. Smith, 287, 298, 370, 
 
 372, 402, 403 
 
 Estell v. Cole, 481, 619, 723, 732 
 Estep v. Estep, 444 
 Estep v. Watkins, 778 
 Evans v. Ashby, 98, 99 
 Evans v. Bicknell, 236 
 Evans v. Boiling, 795, 802, 865 
 Evans v. Gerry, 710, 749, 800 
 Evans v. Dendy, 86, 475 
 Evans v, Jones, 669 
 Evans v. Kingsberry, 492, 828 
 Evans v. McLucas, 333, 475, 477 
 Evans v. Saunders, 347 
 Evans v. Snyder, 138 
 Evans v. Taylor, 291, 725, 778, 780 
 Eveleth v. Crouch, 389 
 Everett v. Dilley, 295 
 Everett v. Marston, 295 
 Eversole v. Eversole, 827 
 Everson v. Kirtland, 36 
 Everts v. Brown, 338 
 Ewart v. Bowman, 601 
 Ewing v. Handley, 702 
 Ewing v. Thompson, 214 
 Eyre v. Woodfine, 127 
 Eyston v. Symond, 798, 799 
 Eyton v. Dicken, 712, 738 
 
 F. 
 Fagan v. Davidson, 161, 219, 726, 
 
 731, 786 
 
 Fagan v. McWhirter, 473 
 Fahy v. Cavanagh, 728 
 
 Faile v. Crawford, 765, 820 
 
 Failing v. Osborne, 447, 600 
 
 Fairbanks v. Williamson, 550 
 
 Fairbrother v. Griffin, 382 
 
 Fairchild v. Marshall, 714 
 
 Faircloth v. Isler, 148, 153 
 
 Faircloth v. Jordan, 531 
 
 Fairfax v. Lewis, 207 
 
 Falkner v. Eq. Kev. Society, 713 
 
 Falkner v. Guild, 36 
 
 Falkner v. Hackett, 460 
 
 Fant v. Wright, 738 
 
 Faries v. Smith, 432 
 
 Farley v. Bryant, 540, 568, 569, 573 
 
 Farley v. laler, 542 
 
 Farley v, Howard, 302 
 
 Farmers' & Mech. Bank v. Detroit, 
 569, 5/3 
 
 Farmers' Bank v. Galbraith, 667,673 
 
 Farmers' Bank v. Glenn, 404, 537 
 
 Farmers' Loan & Trust Co. v. Malt- 
 by, 532 
 
 Farmers' Bank v. Martin, 81 
 
 Farmers' Bank v. Peter, 81, 142 
 
 Farnham v. Hotchkiss, 447, 458, 462 
 
 Farnsworth v. Duffner, 664 
 
 Farnum v. Buffum, 69 
 
 Farnum v. Peterson, 527 
 
 Farrell v. Lloyd, 240, 684 
 
 Farrington v. Tennessee, 641 
 
 Farrington v. Tourtellot, 305 
 
 Farrow v. Mays, 475 
 
 Fash v. Blake, 50 
 
 Favill v. Roberts, 139 
 
 Feemster v. May, 35, 611, 616 
 
 Fehrle v. Turner, 445, 838 
 
 Feiner v. Reiss, 771 
 
 Felix v. Devlin, 492, 721 
 
 Fellows v. Evans, 447 
 
 Fenton v. Alsop, 854 
 
 Fenwick v. Buff, 574 
 
 Ferebee v. Hinton, 62 
 
 Ferguson v. Dent, 344 
 
 Ferguson v. Teel, 587 
 
 Fermor's Case, 105 
 
 Ferrell v. Alden, 428 
 
 Ferris v. Crawford, 286 
 
 Ferris v. Harshea, 356, 365 
 
 Ferris v. Plumber, 712 
 
 Ferry v. Sampson, 746 
 
 Person v, Sanger, 857 
 
 Fewster v. Turner, 481 
 
 Field v. Snell, 380, 389 
 
 Fields v. Clayton, 559, 854 
 
 Fields v. Hunter, 430 
 
 Fields v. Baum, 587 
 
 Fields v. Squires, 347, 379, 440, 547 
 
 Fierce v. Houghton, 305, 308, 564 
 
 Fife v. Clayton, 32 
 
 Fillingin v. Thornton, 842 
 
 Finch v. Edmondson, 115
 
 TABLE OF CASES. 
 
 [REFERENCES ARE TO PAGES.] 
 
 xxxv ; i 
 
 Final v. Backus, 69 
 
 Findlay v. Toncray, 147, 334, 356 
 
 Findley v. Horner, 198 
 
 Finley v. Steele, 342 
 
 Finn v. Sleight, 552 
 
 Finton v. Eggleston, 366 
 
 First Af. Soc. v. Brown, 707 
 
 First Af. M. E. Church v. Brown, 743 
 
 Fist Nat. Bank v. Gough, 559, 560, 
 
 573 
 First Nat. Bank v. Wentworth, 569, 
 
 575 
 
 Fish v. Cleland, 250 
 Fish v. West, 589 
 Fishback v. Williams, 608, 797 
 Fisher v. Abney, 474 
 Fisher v. Dow, 472, 474 
 Fisher v. Kay, 488 
 Fisher v. Parry, 270 
 Fisher v. Salmon, 467 
 Fisher v. Wilcox, 721 
 Fisher v. Wood, 106 
 Fitch v. Baldwin, 261, 552, 855, 863 
 Fitch v. Casey, 34 
 Fitch v. Fitch, 540 
 Fitch v. Polke, 241, 834, 837 
 Fitch v. Seymour, 302 
 Fitch v. Wollard, 25, 37, 149 
 Fitts v. Hoitt, 300, 599, 778 
 Fitzer v. Fitzer, 285 
 Fitzgerald v. Peck, 871 
 Fitzhugh v. Croghan, 255, 260, 538 
 Fitzhugh v. Land Co., 698 
 Fitzpatrick v. Featherstone, 695 
 Fitzpatrick v. Fitzpatrick, 43 
 Fitzpatrick v. Hoffman, 424, 677 
 Fitzpatrick v. Leake, 773 
 Fitzpatrick v. Sweeny, 762 
 Flagg v. Eames, 54 
 Flanary v. Kane, 54, 520. 
 Flannagan v. Oberimer, 182 
 Flannagan v. Young, 73 
 Flannigan v. Fox, 727 
 Flanniken v. Neal, 377 
 Fleming v. Burnham, 721, 769 
 Fleming v. Harrison, 148 
 Fleming v. Holt, 133, 153 
 Fletcher v. Beck, 641 
 Fletcher v. Button, 17, 36, 211, 213, 
 
 223, 617 
 
 Fletcher v. Moore, 812 
 Fletcher v. Wilson, 538, 798 
 Flight v. Booth, 194 
 Flinn v. Barber, 20, 590 
 Flint v. Steadman, 415 
 Flint v. Woodin, 193 
 Floom v. Beard, 278 
 Florence Oil Co. v. McCandless, 492, 
 
 616, 626, 822 
 Florentine v. Barton, 98 
 Fluyder v. Cocker, 820 
 
 Fly v. Brooks, 572 
 
 Flureau v. Thornhill, 212, 215, 210 
 
 Flynn v. Bourneuf, 283 
 
 Flynn v. White Breast Coal Co., 308 
 
 Fogarty v. Finlay, 63 
 
 Foley v. City of Haverhill, 293 
 
 Foley v. Crow, 822, 820 
 
 Foley v. Keegan, 213 
 
 FO!K v. Varn, 50 
 
 Folliard v. Wallace, 351, 353, 431, 
 
 434, 726, 727 
 Follett v. Grant, 256 
 Folts v. Huntley, 355 
 Foot v. West, 205, 208, 595 
 Foote v. Burnett, 265, 269, 321, 384 
 Foote v. Clarke, 156, 257, 522 
 Force v. Butcher, 587 
 Ford v. Belmont, 760 
 Ford v. Schlosser, 737 
 Ford v. Walworth, 100, 377 
 Ford v. Wright, 742 
 Ford v. Yates, 32 
 Fordyce v. Ford, 187 
 Fore v. McKenzie, 88, 112 
 Foreman v. Wolf, 737 
 Forest v. Camp, 127 
 Forster v. Abraham, 714 
 Forster v. Hoggart, 28, 29 
 Forster v. Scott, 778 
 Forsyth v. Leslie, 187, 737, 747, 787 
 Forteblow v. Shirley, 819 
 Forthman v. Deters, 509 
 Fort Jeff. Imp. Co. v. DuPeyster, 625 
 Fort Payne Coal & I. Co. v. Webstvr. 
 
 807 
 
 Fosdick v. Burr, 121 
 Fosgate v. Herkimer Mfg. Co., 798 
 Foshay v. Shafer, 357 
 Foss v. btrachn, 539 
 Foster v. Dwinel, 552 
 Foster v. Foster, 301, 308, 320, 322 
 Foster v. Gillam; 683 
 Foster v. Gressett, 194, 244, 696, 85.* 
 Foster v. Herkimer Mfg. Co., 202, 
 
 506 
 
 Foster v. Jared, 612 
 Foster v. Kennedy, 235 
 Foster v. Lyons, 848 
 Foster v. Thompson, 415 
 Foster v. Woods, 287 
 Foster v. Young, 156, 157 
 Foute v. Elder, 603 
 Fowler v. Cravens, 696, 697 
 Fowler v. Johnson, 213 
 Fowler v. Mnnheimer, 746 
 Fowler v. Poling, 256, 356, 358, 363, 
 
 436 
 
 Fowler v. Shearer, 542 
 Fowler v. Smith, 365, 443 
 Fowler v. Ward, 694 
 Fox v. Birch, 486
 
 XXXV111 
 
 TABLE OF CASES. 
 
 [REFERENCES ARE TO PAGES.] 
 
 Fox v. Haughton, 2-t6 
 
 Fox v. Kitton, 041 
 
 Fox v. McGoodwiii, 78 
 
 Fox v. Mensch, 109, 674 
 
 Fox v. Widgery, 552 
 
 Foy v. Houghton, 342 
 
 Fraker v, Brazelton, 799 
 
 Franchot v. Leach, 682 
 
 Francis v. Hazelrig, 733 
 
 Franciscua v. Reigert, 409 
 
 Frank v. Riggs, 443, 838 
 
 Franklin v. Dorland, 520 
 
 Franz v. Orton, 480 
 
 Fraser v. Prather, 49 
 
 Fratt v. Fiske, 622 
 
 Frazer v. Robinson, 641 
 
 Frazer v. Supervisors, 256, 258, 271, 
 
 414 
 
 Frazier v. Boggs, 34 
 Frazier v. Tubb, 864 
 Frederick v. Campbell, 660, 673 
 Frederick v. Cox, 90 
 Freebody v. Perry, 486 
 Freedman v. Oppenheim, 739, 762, 
 
 763, 770 
 
 Freeland v, Pearson, 731 
 Freeligh v. Platt, 462, 609 
 Freeman v. Auld, 469 
 Freeman's Bank v. Vose, 574 
 Freeman v. Foster, 286, 288 
 Freeman v. Preston, 67 
 Freer v. Hesse, 713, 747, 748 
 Freetly v. Barnhart, 711, 769 
 Freize v. Chapin, 605 
 Freme v. Wright, 28, 724 
 French v. i'olsom, 306 
 French v. Howard, 851 
 French v. Genet, 513 
 French v. Pratt, 130 
 French v. Spencer, 549 
 Frenzel v. Miller, 248 
 Frey v. Rawson, 520 
 Freymoth v. Nelson, 368 
 Friedly v. Scheetz, 118, 157, 674 
 Friedman v. Dewees, 792 
 Frink v. Bellis, 314 
 Frink v. Darst, 343, 545 
 Frisbie v. Hoffnagle, 463 
 Frisby v. Ballance, 545 
 Frische v. Kramer, 138 
 Fristoe v. Latham, 680 
 Fritz v. Pusey, 290, 298, 300, 367, 407 
 Froman v. Froman, 483, 575 
 Frost v. Angier, 306 
 Frost v. Atwood, 95, 136, 138 
 Frost v. Bunson, 817 
 Frost v. Earnest, 355 
 Frost v. Knight, 19 
 Frost v. Raymond, 257 
 Frost v. Smith, 611 
 Frost v. Yonkers Sav. Bank, 120, 130 
 
 Fruhauf v. Bendheim, 777 
 
 Fryer v. Rockefeller, 63, 77, 762, 760 
 
 Fuchs v. Treat, 571 
 
 Fuhr v. Cronin, 742, 791 
 
 Fuhrman v. London, &7 r 670, 671 
 
 Fuller v. Savings Bank, 559 
 
 Fuller v. Hubbard, 150, 208, 591,777 
 
 Fuller v. Hovey, 803 
 
 Fuller v. Jillette, 292, 311 
 
 Fuller v. Williams, 208 
 
 Fulweiler v. Baugher, 418, 423 
 
 Funk v. Creswell, 333, 363, 367, 363 
 
 Funk v. Newcomer, 519 
 
 Funk v. Voneida, 281, 291, 308, 322 
 
 Furber v. Purdy, 597 
 
 Furman v. Caldwell, 141 
 
 Furman v. Elmore, 271, 374, 391, 39<J, 
 
 475 
 
 Furnas v. Durgin, 282, 359, 365 
 Furniss v. Williams, 256, 261 
 Furnold v. Bank, 512 
 Fuson v. Lambdin, 506 
 
 G. 
 
 Gage v. Cummings, 808 
 Gager v. Edwards, 470 
 Gaines v. Jones, 738 
 Gaines v. Kennedy, 138, 139 
 Gaines v. Merchants' Bank, 122 
 Gaither v. O'Doherty, 148, 150, 480, 
 
 798. 
 
 Galbraith v. Dilday, 563 
 Galbraith v. Reeves, 625 
 Gale v. Conn, 445, 638 
 Gale v. Dean, 214 
 Gale v. Edwards, 299 
 Gale v. Gale, 717 
 Gale y. Morris, 561, 574 
 Gale v. Nixon, 616 
 Gallagher v. Withinpton, 508, 696 
 Galloway v. Barr, 487 
 Galloway v. Bradshaw, 826 
 Galloway v. Finlay, 406, 508 
 Galvin v. Collins, 764 
 Galway v. Melchow, 573 
 Gamble v. Daugherty, 557 
 Gamble v. McClure, 344 
 Games v. Bonner, 737 
 Gammon v. Blaisdell, 16, 354 
 Gano v. Green, 433 
 Gans v. Renshaw, 189, 589, 621, 692, 
 
 709, 711, 716, 822 
 Gantly v. Ewing 130 
 Ganz's Appeal, 600 
 Garber v. Armentrout, 655 
 Garber v. Sutton, 793 
 Garden City L. Co. v. Miller, 765, 772 
 Gardner v. Dembinsky, 716 
 Gardner v. Keteltas, 355, 360 
 Gardner v. Mayo, 860 
 Gardner v. Moore, 576
 
 TABLE OF CASES. 
 
 [REFERENCES ABB TO PAGES.] 
 
 XXXIX 
 
 Gardner v. Niles, 282 
 
 Garfield v. Williams, 237, 263, 273 
 
 Garlock v. Cross, 383, 385 
 
 Garner v. Leaverett, 443, 025, 694, 
 
 696 
 
 Garnett v. Garnett, 44 
 Garnett v. Macon, 108, 700, 782, 784, 
 
 804, 807 
 
 Garnett v, Yoe, 202 
 Garrard v. Lantz, 510, 512, 668 
 Garrett v. Christopher, 340 
 Garrett v. Crosson, 668 
 Garrett v. Lynch, 110, 194 
 Garrett v. McLain, 549 
 Garrett v. Stuart, 402 
 Garrison v. Moore, 409 
 Garrison v. Sandford, 263, 311 
 Gartman v. Jones, 453, 646 
 Gartrell v. Stafford, 492 
 Garvin v. Cohen, 467, 616 
 Gass v. Sanger, 411, 865 
 Gaston v. Frankum, 22 
 Gastry v. Perrin, 35 
 Gates v. McLean, 615, 618 
 Gates v. Parmly, 164, 298, 708, 773, 
 
 778 
 
 Gates v, Winslow, 648 
 Gault v. Van Zile, 146 
 Gaunt v. Wainman, 552 
 Gautreaux v. Boote, 37 
 Gay v. Hancock, 461, 847, 850, 851 
 Gayle v. Fattle, 848 
 Gazley v. Pierce, 33, 150 
 Gedye v. Duke of Montrose, 801 
 Gee v. Pharr, 343 
 Gee v. Moore, 332, 548 
 Gee v. Saunders, 609 
 Gehr v. Hegerman, 695. 696 
 Geiszzler v. DeGraaf, 311, 314 
 Gen. Finance Co. v. Liberator Society. 
 
 517, 540 
 
 Genner v. Hammond, 231 
 Gennings v. Norton, 282 
 Gentry v. Callahan, 551 
 Gentry v. Hamilton, 816 
 Geoghegan v. Conolly, 20, 184 
 Geoghegan v. Ditto, 138, 140 
 George v. Conhaim, 47, 762, 810 
 George v. Putney, 371 
 George v. Robinson, 376 
 George v. Stockton, 611, 615 
 Georgetown v. Smith, 120 
 Gerald v. Elley, 305 
 Gerault v. Anderson, 212, 490 
 Gerdes v. Moody, 563, 570 
 Gerhardt v. Spalding, 337 
 German Real Est. Co. v. Starke, 452 
 Gest v. Flock, 68 
 Getchell v. Chase, 446, 648 
 Getty v. Peters, 508, 579 
 Geyer v. Girard, 526 
 
 Gheen v. Harris, 297 
 
 Gibbs v. Champion, 489 
 
 Gibbs v. Jemison, 229 
 
 Gibbs v. Thayer, 332, 546 
 
 Gibert v. Peters, 702 
 
 Gibson v. Carreker, 214 
 
 Gibson v. Choteau, 540, 545, 548 
 
 Gibson v. Clarke, 486 
 
 Gibson v. Colt, 155 
 
 Gibson v. D Este, 855 
 
 Gibson v. Mussey, 158 
 
 Gibson v. Newman, 611, 792, 794 
 
 Gibson v. Patterson, 811 
 
 Gibson v. Richart, 444, 650 
 
 Gibson v. Spurrier, 720 
 
 Giddings v. Confield, 434 
 
 Giddings v. Holter, 336, 368 
 
 Gifford v. Ferguson, 445 
 
 Gifford v. Society, 447, 458 
 
 Gilbert v. Bulkley, 255, 263 
 
 Gilbert v. Cherry, 18 
 
 Gilbert v. Cooley, 137 
 
 Gilbert v. Hoffman, 141, 523 
 
 Gilbert v. James, 106 
 
 Gilbert v. Peteler, 223, 776 
 
 Gilbert v. Rushmer, 318, 319 
 
 Gilbert v. Wyman, 282 
 
 Gil breath v. Dilday, 571 
 
 Gilchrist v. Buie, 34, 35, 148, 149 
 
 Gilchrist v, Dilday, 70 
 
 Giles v. Dugro, 270, 298, 303, 375, 
 
 409 
 
 Giles v. Paxson, 725 
 Giles v. Peo. Nat. Bank, 597 
 Gilham v. Real Est. Co., 296 
 Gilham v. Walker, 838 
 Gill v. Corbin, 236 
 Gill v. Ferrin, 286 
 Gillam v. Briggs, 477 
 Gillespie v. Torrance, 593 
 Gillett v. Maynard, 584, 596,610,702 
 Gillette v. Hill, 137 
 Gills v. Wells, 722, 757 
 Gilpin v. Smith, 446, 684 
 Gilroy v. Alis, 858 
 Giltner v. Ruyl, 484 
 Gimell v. Adams, 49 
 Ginn v. Hancock, 302 
 Gish v. Moomaw, 725 
 Gittings v. Worth ington, 346 
 Given v. McCarroll, 102 
 Glass v. Brown, 855 
 Glass v. Richardson, 722 
 Glasscock v. Minor, 194, 249, 250 
 Glasscock v. Robinson. 693, 782 
 Glassman v. Condon, 597 
 Gleason v. Smith, 353 
 Glendenning v. Oil Co., 519 
 Glenn v. Allison, 156, 157 
 Glenn v. Clapp, 81, 82 
 Glenn v. Rossler, 203
 
 TABLE OF CASES. 
 
 [REFERENCES ABE TO PAGES.] 
 
 Glenn v. Thistle, 368, 463 467 
 
 Glover v. Shields, 52 
 
 Gobble v. Linden, 232 
 
 Oober v. Hart, 627 
 
 Gochenour v. Mowry, 534 
 
 Goddin v. Vaughn, 36, 149, 154, 185, 
 
 193, 195, 818 
 Godfrey v. Rosenthal, 788 
 Godley v. Taylor, 155 
 Godson v. Turner. 30, 196 
 Goelth v. White, 695 
 Goerlitz v. Malanistta, 767 
 Goettel v. Sage, 672, 860 
 Goetz v. Walters, 811, 814 
 Goff v. Hawkes, 213, 224, 226 
 Goff v. O'Connor, 121 
 Going v. Oakland, 722, 801 
 Golden v. Maupin, 640 
 Goldsmith v. Guild, 803 
 Gonzales v. Hukil, 541 
 Gooch v. Atkins, 140 
 Good v. Good, 225 
 Good v. Herr, 868 
 Goodbar v. Daniel, 118, 123 
 Goodbar v. Dunn, 573 
 Goode v. Smith, 67 
 Goodel v. Bennett, 389, 522 
 Goodell v. Sanford, 166 
 Goodenough v. Fellows, 541 
 Goodin v. Decker, 195, 622 
 Goodkind v. Bartlett, 236, 778 
 Goodman v. Randall, 572, 574 
 Goodman v. Rust, 69 1 
 Goodman v. Winter, 139 
 Goodwin v. Francis, 229 
 Goodwin v. Maxwell, 335 
 Goodyere v. Ince, 127 
 Gordon v. Champneys, 708 
 Gordon v. Goodman,, 864 
 Gordon v. Mahoney, 694 
 Gordon v. Phillips, 444 
 Gordon v. Sims, 78 
 Gore v. Brazier, 359, 365, 393, 393. 
 
 400 
 
 Goring v. Shreve, 137 
 Gorman v. Gorman, 740 
 Gorman v. Salisbury, 581 
 Gosbell v. Archer, 594, 596 
 Goss v. Lord Nugent, 31, 190, 581 
 Goss v. Singleton, 792 
 Gotthelf v. Stranahan, 480 
 Goucher v. Helmbold, 666 
 Goucher v. Martin, 581 
 Gough v. Bell, 519 
 Gould v. Sternberg, 89, 90 
 Gould .v. Woodward, 63 
 Gove v. Cather, 63 
 
 Governor v. West Imp. Commrs., 78 
 Gourdine v. Fludd, 477 
 Grace v. Regal, 209 
 Grady v. Ward, 739 
 
 Gragg v. Richardson, 37, 99, 420, 424, 
 
 428 
 
 Graham v. Anderson, 57 
 Graham v. Dyer, 398, 415, 424 
 Graham v. Gates, 492 
 Graham v. Graham, 214 
 Graham v. Hackwell, 483 
 Graham v. Hackwith, 483, 490 
 Graham v. Meek, 542 
 Graham v. Tankersley, 427, 430 
 Granger v. Olcott, 648, 860 
 Grannis v. Clark, 360, 434 
 Grant v. Hill, 410 
 Grant v. Law, 695 
 Grant v. Tallman, 321, 457 
 Grant v. Wasson, 738 
 Grantland v. Wight, 154, 477, 703, 
 
 841, 849, 851 
 
 Grapengether v. Ferjervary, 576 
 Crasser v. Black, 707 
 Graves v. Mattingly, 156 
 Graves v. Spier, 14 
 Graves v. Wilson, 30 
 Gray v. Briscoe, 412 
 Gray v. Handkisson, 476 
 Gray v. Hill, 735 
 Gray v. Jones, 182 
 Gray v. Mills, 18 
 Gray v. Smith, 760, 792 
 Gray v. Ward, 650 
 Grayson v. Weddle, 572 
 Great Falls Ice Co. v. Worster, 534 
 Great Western Stock Co. v. Saas, 265 
 Greaves v. Ashton, 32 
 Green v. Biddle, 223 
 Green v. Campbell, 839 
 Green v. Chandler. 20, 234, 253, 681, 
 
 805, 819 
 
 Green v. Collins, 375 
 Green v. Covilland, 33 
 Green v. Finucane. 197 
 Green v. Ditsch, 705 
 Green v. Edwards. 387 
 Green v. Green, 205, 512, 589. 612, 
 
 777 
 
 Green v. Hernz, 511, 598, 788 
 Green v. Irving, 146, 363, 367. 368, 
 
 371 
 
 Green v. McDonald, 638, 639 
 Green v. Pulsford. 715 
 Green v. Tidball, 296 
 Green v. Whipple, 838 
 Greenblatt v. Herrmann, 487. 759 
 Greenby v. Cheevers, 205, 510, 612, 
 
 804 
 
 Greenby v. Wilcocks, 262, 434 
 Greene* v. Allen. 13, 700 
 Greene v. Creighton. 301, 320, 323 
 Greene v. Tallman. 317 
 Greene v. Williams, 211, 424 
 Greenlaw v. Williams, 428, 429
 
 TADLE OF CASES. 
 
 [INFERENCES ABE TO PAGES.] 
 
 xii 
 
 Greenleaf v. Cook, 198, 453, 462, C49, 
 
 091 
 
 Greenleaf v. Queen, 443, 039, 690, 732 
 Greenlee v. Gaines, 624, 090, 855 
 Greeno v. Munson, 371 
 Greenough v. Small, 116 
 Greenvault v. Davis, 356, 363, 368, 
 
 389, 403 
 
 Greenville N. B. v. Parkinson, 586 
 Greenwood v. Hoyt, 219 
 Greenwood v. Digon, 35 
 Gregory v. Christian, 812 
 Gregory v. Peoples, 524, 543, 544 
 (ircgory v. Scott, 589 
 Greville v. Da Costa, 11, 587 
 Grey son v. Kiddle, 811 
 Greyson v. Tuson, 110 
 Grice v. Scarborough, 284, 299 
 Grider v. Land Mtgo. Co., 72 
 Gridley v. Tucker, 461 
 Griel v. Lomax, 049 
 Griffin v. Cunningham, 704, 728, 730, 
 
 748, 783 
 
 Griffin v. Fairbrother, 256, 381 
 Griffin v. Reynolds, 363, 392, 410 
 Griffin v. Sheffield, 542 
 Griffith v. Bogert, 107 
 Griffith v. Depew, 625, 698, 702 
 Griffith v. Kempshall, 242, 245, 453, 
 
 657, 662 
 
 Griffith v. Maxfield, 757, 771, 778 
 Griffith v. Townley, 859 
 Griggs v. Landis, 193 
 Griggs v. Woodruff, 193, 203, 625 
 Grignon v. Astor, 98, 99, 100, 101, 114 
 G rimes v. Redman, 525 
 Grist v. Hodges, 203, 349 
 Griswold v. Allen, 375 
 Griswold v. Block, 73 
 Griswold v. Hazard, 868, 871 
 Griswold v. Hicks, 107 
 Groesbeck v, Harris, 357, 414, 421, 
 
 472 
 
 Groesbeck v. Seeley, 58 
 Groom v. Booth, 28 
 Gross Lumber Co. v. Leitner, 117 
 Grout v. Townsend, 541 
 Grove v. Bastard, 715 
 Grove v. Zumbro, 67 
 Grubb's Appeal, 564 
 Grubbs v. Barber, 444 
 Grundy v. Jackson, 507, 697 
 Grymes v. Saunders, 866 
 Gue v. Jones, 96 
 Guerin v. Smith, 289, 311 
 Guerrant v. Anderson, 534 
 Guerard v. Rivers, 399 
 Guest v. Horn fray, 804 
 Guice v. Sellers, 446 
 Guilmartin v. Urquhart, 564 
 Guinotte v. Choteau, 402 
 
 Gulick v. Railroad Co., 551 
 Gump v. Sibley, 737 
 Gunby v. Sluter, 249, 581 
 Gunn v. Moore, 337 
 Gunn v. Thornton, 842 
 Gunnison v. Blaisdell, 354 
 Gunnis v. Erhart, 32 
 Gunter v. Williams, 363, 381 
 Guthrie v. Pugsley, 409, 415 
 Guthrie v. Russell, 318, 321 
 Guthrie v. Thompson, 201, 205 
 Guttschlick v. Bank, 192, 57, 619, 
 
 656 
 
 Guynet v. Mantel, 827 
 Gwin v. Calegaris, 595, 741 
 Gwin v. McCarroll, 113, 115 
 Gwinther v. Gerding, 238, G61, 681, 
 
 687 
 
 Gvvynn v. Hamilton, 808 
 Gwynn v. Thomas, 440 
 
 H. 
 
 Haber v. Burke, 693 
 
 Habig v. Dodge, 340, 547, 549 
 
 Hacker v. Blake, 273 
 
 Hacker v. Storer, 263, 270, 388 
 
 Racket v. Glover, 3(50 
 
 Hackett v. Huson, 208 
 
 Haddock v. Taylor, 225 
 
 Hadlock v. Williams, 091, 822 
 
 Haff v. Price, 138 
 
 Haffey v. Birchetls, 370, 393, 515 
 
 Haffey v. Lynch, 782, 819 
 
 Hagan v. Drucker, 740 
 
 Hagensick v. Castor, 544, 549 
 
 Haggart v. Scott, 798, 799 
 
 Haggin v. Olivet, 837 
 
 Hagler v. Simpson, 254, 366 
 
 Haight v. Hayt, 2:5:5, 080 
 
 Haines v. Fort, 424 
 
 Haire v. Baker, 285 
 
 Halcombe v. Lovvdermilk, 123, 140 
 
 Haldane v. Sweet, 194, 299, 305, 446, 
 
 638 
 
 Hale v. Cravener, 503, 711, 732, 735 
 Hale v. Marquette, 109, 111 
 Hale v. New Orleans, 393, 799 
 Hale v. Wilkinson, 616 
 Hall v. Betty, 20, 22, 28 
 Hall v. Bray, 363 
 Hall v. Chuffee, 548 
 Hall v. Clountz, 805 
 Hall v. Dean, 291, 317 
 Hall v. Delaplnine, 214 
 Hall v. Gale. 259, 448 
 Hall v. McArtlmr. 589 
 Hall v. Nevill, 196 
 Hall v. Plaine, 378 
 Hall v. Priest, 847 
 Hall v. Scott, 737 
 Hall v. Scott Co., 265
 
 xlii 
 
 TABLE OF CASES. 
 
 [REFERENCES ARE TO PAGES.] 
 
 Hall v. Smith, 30 
 
 Hall v. York, 214 
 
 Halley v. Oldham, 121 
 
 Halliburton v. Slagle, 519 
 
 Halliek v. Guy, 112 
 
 Halls v. Thompson, 236, 238, 251 
 
 Halsey v. Jones, 128, 137 
 
 Ham v. Ham, 550 
 
 Hamar v. Medskar, 576 
 
 Hamilton v. Cutts, 363, 3C8 
 
 Hamilton v. Hamilton, 488 
 
 Hamilton v. Hulett, 809 
 
 Hamilton v. Lusk, 363 
 
 Hamilton v. Wilson, 256, 257, 262 
 
 Hamlon v. Sullivant, 568 
 
 Hammatt v. Emerson, 835 
 
 Hammers v. Hanrick, 244, 624 
 
 Hammerschlag v, Duryea, 737 
 
 Hammerslough v. Hackett, 273, 382 
 
 Hammersmith v. Espy, 123 
 
 Hammond v. Chamberlain, 78 
 
 Hammond v. Hamlin, 213, 216 
 
 Hampton v. Pool, 382 
 
 Hampton v. Specknagle, 20(5, 770 
 
 Hampton v. Webster, 433 
 
 Hancock v. Bramlett, 824 
 
 Hancock v. Carlton, 526 
 
 Hancock v. Cloud, 628 
 
 Hancock v. Wiggins, 653 
 
 Hand v. Grant, 80, 118 
 
 Handy v. Rice, 499 
 
 Handy v. Waxter, 80 
 
 Hanks v. Pickett, 507 
 
 Hanna v. Phillip, 496 
 
 Hanna v. Shields, 273, 444, 844 
 
 Hannah v, Henderson, 371 
 
 Hannan v. McMickle, (>Tr> 
 
 Hanrick v. Patrick, 548 
 
 Hanson v. Buckner, 370. 391. 396 
 
 Haralson v. Langford, 472. 473 
 
 Haran v. Stratton, 297, 348 
 
 Hardeman v. Cowan, 506 
 
 Harden v. Collins, 545 
 
 Hardigree v. Mitchum, 511, 874 
 
 Hardin v. Clark, 130 
 
 Hardin v. Harrington, 512 
 
 Hardin v. Kirk, 57 
 
 Harding v. Comm'l Loan Co.. 838 
 
 Harding v. Larkin, 363, 415, 417, 
 
 419, 421 
 
 Harding v. Nelthorpe, 244 
 Harding v. Olsen, 704, 811 
 Hardwick v. Forbes, 803 
 Hardy v. Nelson, 398, 430, 526 
 Hare v. Burges, 155 
 Hare v. Holloman, 107, 116 
 Harkreader v. Clayton, 506 
 Harland v. Eastland, 253 
 Harle v. McCoy, 618 
 Harlow v. Thomas, 301, 322 
 Harmer v. Morris, 529 
 
 Harn v. Smith, 521 
 
 Harnett v. Yielding, 500 
 
 Harpening v. Dutch Church, 737 
 
 Harper v. Dowdney, 296 
 
 Harper v. Jeffries, 510, 512, 668 
 
 Harper v. Perry, 378, 385 
 
 Harper v. Reno, 506 
 
 Harper v. Tidholm, 165 
 
 Harr v. Shaffer, 368 
 
 Harrass v. Edwards 765, 766 
 
 Harriman v. Gray, 550 
 
 Harrington v. Higgins, 205, 207, 790, 
 797 
 
 Harrington v. Murphy, 300, 315, 372 
 
 Harris v. Bolton, 201, 693 
 
 Harris v. Carter, 244, 792, 806 
 
 Harris v. Granger, 824, 829 
 
 Harris v. Newell, 273 
 
 Harris v. Rowan, 446 
 
 Harris v. Smith, 723 
 
 Harrison v. Boring, 546, 550 
 
 Harrison v. Deramus, 198 
 
 Harrison v. Harrison, lOo, 116 
 
 Harrison v. Palo Alto Co., 349 
 
 Harrison v. Platt, 789, 790 
 
 Harrison v. Shanks, 126 
 
 Harrison v. Soles, 512 
 
 Hart v. Bleight, 192 
 
 Hart v. Gregg, 547 
 
 Hart v. Handlin, 191, 691, 775 
 
 Hart v. Hannibal & St. J. R. Co., 
 446, 630, 857 
 
 Hart v. Porter, 666, 670, 674 
 
 Hart v. Smith, 132 
 
 Hartford Co. v. Miller, 263, 273 
 
 Hartley v. Costa, 538 
 
 Hartley v. Gregory, 282 
 
 Hartley v. James, 205, 594, 610, 738 
 
 Hartley v. Smith, 715, 730 
 
 Harth v. Gibbs, 119, 141, 142 
 
 Hartshorn v. Cleveland, 294 
 
 Hartzell v. Crumb, 214 
 
 Harvey v. Doe, 259 
 
 Harvey v. Morris, 619 
 
 Harvie v. Hodge, 519 
 
 Harwood v. Benton, 309 
 
 Harwood v. Bland, 187, 188 
 
 Harwood v. Lee, 316, 319 
 i Haseltine v. Simmons, 711 
 1 Hastings v. Hastings, 317, 327 
 
 Hastings v. Land Imp. Co., 296 
 
 Hastings v. O'Donnell, 649 
 
 Hastings v. Vaughn, 69 
 
 Hatch v. Barr, 49 
 
 Hatch v. Cobb, 487, 813 
 
 Hatcher v. Andrews, 302, 838. 839 
 
 Hatcher v. Briggs, 139 
 
 Hatt v. Rich, 714, 771 
 
 Haug v. Primeau, 115 
 
 Haven v. Grand June. R. Co., 426 
 
 Havens v. Foster, 873
 
 TABLE OF CASES. 
 
 xliii 
 
 [REFERENCES ABE TO PAGES.] 
 
 Havens v. Goudy, 613 
 Haverington's Case, 298 
 Hawes v. Rucker, 129 
 Hawes v. Swanzey, 193, 682 
 Hawkins v. Brown, 414 
 Hawkins v. Burruss, 66 
 Hawkins v. Johnson, 602 
 Hawn v. Norris, 618 
 Hawpe v. Smith, 110, 111 
 Hawralty v. Warren, 497 
 Hawthorn v. City Bank, 311, 321 
 Hayden v. Westcott, 60, 72 
 Hayes v. Bickerstaff, 361, 434 
 Hayes v. Bonner, 590, 664 
 Hayes v, Ferguson, 361 
 Hayes v. Nourse, 720, 788 
 Hayes v. Skidmore, 827 
 Hayes v. Tabor, 547 
 Raymond v. Camden, 107, 138 
 Hayner v. Smith, 353 
 Haynes v. Farley, 13, 18, 815 
 Haynes v. Lucas, 11 
 Haynes v. Seachrist, 574 
 Haynes v. Stevens, 386, 421, 526 
 Haynes v. White, 33, 34, 615 
 Haynes v. Young, 37 o 
 
 Hays.v. Bonner, 683 
 
 Hays v. Dalton, 138 
 
 Hays v. Griffith, 90 
 
 Hays v. Trible, 746, 755, 805, 814 
 
 Hayward v. Lomax, 511 
 
 Hazelrig v. Hutson, 497 
 
 Hazlett v. Woodruff, 417 
 
 Headley v. Shaw, 180, 207 
 
 Head's Trustees, In re, 809 
 
 Headrick v. Wisehart, 285 
 
 Heaarick v. Yount, 78, 114 
 
 Heard v. Hall, 157 
 
 Hearne v. Tomlin, 189, 586 
 
 Hearne v. Tenant, 812 
 
 Heath v. Black, 127 
 
 Heath v. Crealock, 440, 517, 540 
 
 Heath v. Newman, 365, 446, 693 
 
 Heath v. Whidden, 311 
 
 Heavner v. Morgan, 606 
 
 Hebler v. Brown, 281, 357, 559 
 
 Heck v. Remka, 556 
 
 Hecker v. Brown, 754 
 
 Hecker v. Sexton, 759 
 
 Hedderley v. Johnson, 707, 730, 731 
 
 Hedges v. Kerr, 149, 154 
 
 Hedrick v. Smith, 419 
 
 Heflin v. Phillips, 281, 343, 363, 443, 
 838 
 
 Heidenburg v. Jones, 207 
 
 Heimburg v. Ismay, 228, 497, 775, 
 778 
 
 Heisch v. Adams, 650 
 
 Heller v. Cohen, 740, 762, 789 
 
 Hellreigel v. Manning, 731, 764 
 
 Helvenstein v. Higginson, 443, 615 
 
 Hemmer v. Hustace, 720, 753, 756 
 Hempstead v. Easton, .)41 
 Henderson v. Brown, 843 
 Henderson v. Grewell, 64 
 Henderson v. Hay, 145 
 Henderson v. Henderson, 300, 321, 
 
 402, 831 
 
 Henderson v. Lacon, 236 
 Henderson v. Overton, 119, 122, 517, 
 
 520, 551, 759 
 
 Henderson v. Perkins, 745 
 Henderson v. Rice, 6/ 
 Hendricks v. Gillespie, 189, 731, 748, 
 
 783, 785, 804 
 
 Hendricks v. Goodrich, 695 
 Hendricks v. Kesee, 262 
 Hendricks v. Stark, 303, 779 
 Hendricks v. Wisehart, 285 
 Hendrickson v. R. Co., 128 
 Henning v. Withers, 271, 391 
 Henry v. Elliott, 646, 848 
 Henry v. Liles, 148, 492 
 Henry v. McEntyre, 377 
 Henry v. McKerlie, 513 
 Hensley v. Baker, 125 
 Hepburn v. Auld, 763, 805, 822 
 Hepburn v. Dunlop, 691, 7!)8 
 Heppinstall v. O'Donnell, 779 
 Herb v. Met. Hosp. & Disp., 325 
 Herbemont v. Sharp, 477, 641 
 Herbert v. Smith, 715 
 Herbert v. Stanford, 613 
 Herington v. Clark, 368 
 Herman v. Sommers, 716, 733 
 Herndon v. Venable, 213, 222 
 Herrick v. Moore, 290, 300, 325 
 Herrick v. Moore, 290, 30G, 325 
 Herrin v. Mclntyre, 384 
 Herrod v. Blackburn, 38 
 Herron v. DeBard, 473 
 Herryford v. Turner, 148, 446, 471. 
 
 599 
 
 Hersey v. Turbett, 667 
 Hertzberg v. Irwin, 668, 718, 759 
 Hertzog v. Hertzog, 213, 223, 225 
 Hester v. Hunnicuft, 368 
 Hewitt v. Powers, 573, 576 
 Heyn v. Ohmann, 436 
 Hiatt v. Callaway, 558 
 Hibbert v. Shee, 586 
 Hicks v. Hicks, 181 
 Hicks v. Lovell, 615 
 Hickson v. Linggold, 112, 625, 80.1 
 Hickson v. Rucker, 78 
 Higgina v. Eagleton, 14, 193, 203, 507, 
 
 815 
 
 Higgins v. Johnson, 515 
 Higginson v. Clowes, 31, 32 
 Hightower v. Smith, 739 
 Higley v. Smith, 156, 649 
 Higley v. Whittaker, 613
 
 xliv 
 
 TABLE OF CASES. 
 
 [REFERENCES ABE TO PAGES.] 
 
 Hilary v. Waller, 737 
 
 Hile v. Davison, 838 
 
 Hileman v. Wright, 559 
 
 Hill v. Bacon, 292 
 
 Hill v. Billingsly, 138 
 
 Bill v. Buckley, 491 
 
 Hii. v. Butler, 447 
 
 Hill v. Fiske, 487 
 
 Hill v. Hobart, 14, 33, 207, 214 
 
 Hill v. Ressegieu, 36, 151, 152 
 
 Hill v. Samuel, 506, 616, 695 
 
 Hill v. West, 542 
 
 Hilmert v. Christian, 280 
 
 Hilton v. Duncan, 625 
 
 Hinckley v. Smith, 824 
 
 Hinds v. Allen, 424, 430 
 
 Hines v. Jenkins, 430 
 
 Hines v. Richter, 211 
 
 Hines v. Robinson, 521 
 
 II inkle v. Margerum, 241 
 
 Hipwell v. Knight, 795, 802 
 
 Hiss v. McCabe, 60 
 
 Hitchcock v. Caruthers, 138 
 
 Hitchcock v. Fortier, 526 
 
 Hitchcock v. Giddings, 252, 652, 859, 
 
 866 
 
 Hitchins v. Pettingill, 566 
 Hite v. Kier, 594 
 Hoag v. Rathbun, 458, 841 
 Hoback v. Kilgore, 148, 151 
 Hobbs v. King, 381, 541 
 Hobein v. Drewell, 467 
 Hobson v. Bell, 25 
 Hobson v. Buchanan, 799 
 Hochster v. De La Tour, 19 
 Hodges v. Fabian, 116 
 Hodges v. Latham, 358 
 Hodges v. Litchfield, 220 
 Hodges v. Saunders, 154, 381 
 Hodgson v. Farrell, 107 
 Hoe's Case, 127 
 Hoffman v, Bosch, 392 
 Hoffman v. Colyer, 726 
 Hoffman v. Kirby, 409, 459, 556 
 Hoffman v. i<ett, 41 
 Hogan v. McMurtry, 794 
 Kogan v. Weyer, 696 
 Hogg v. Odom, 45 
 Hogsett v. Ellis, 464 
 Hoke v. Jones, 843, 849 
 Holabird v. Burr, 574 
 Holbrook v. Debo, 548 
 Holden v. Curtis, 654 
 Holden v. Taylor, 361 
 Holeman v. Maupin, 848 
 Holin v. Wust, 165 
 Holladay v. Menifee, 273, 430, 435, 
 
 616 
 
 Holland v. Anderson, 248, 253, 691 
 Holland v. Holmes, 148 
 Holland v. Johnson, 95 
 
 Holland v. Moon, 576 
 Holland v, Rogers, 37 
 Hollenburgh v. Morrison, 591 
 Hollifield v. Landrum, 159, 614, 729, 
 
 741, 765 
 
 Hollingsworth v. Mexia, 401 
 Hollister v. Dillon, 141 
 Holley v. Younge, 455, (>82 
 Holloway v. Miller, 368. 400, 508 
 Holly v. Hirsh, 713, 728 
 Holman v. Creagmiles, 469 
 Holman v. Criswell, 11, 152 
 Holmes v. Holmes, 201, 220. 797, 831 
 Holmes v. Richards, 735, 744 
 Holmes v. Seaman, 402 
 Holmes v. Shaver, 80 
 Holmes v. Sinnickson, 391, 422 
 Holmes v. Wood, 756 
 Holt's Appeal, 762 
 Holtzinger v. Edwards, 118, 123 
 Holyoke v. Clarke, 156 
 Home Life Ins. Co. v. Sherman, 364 
 Homer v. Purser, 863 
 Honaker v. Shougli, 138 
 Hoock v. Bowman, 374, 810 
 Hood v. Clark, 281 
 Hood's Appeal, 418 
 Hood v. Huff, 616 
 Hooker v. Folsom, 366, 444 
 Hooper v. Armstrong, 458 
 Hooper v. Henry, 526 
 Hooper v. Jackson, 808 
 Hooper v. Sac. Co. Bank, 372 
 Hoot v. Spade, 410 
 Hoover v. Chamber, 808 
 Hope v. Blair, 97 
 Hope v. Stone, 340, 540, 548 
 Hopkins v. Delaney, 63 
 Hopkins v. Lane, 380, 383 
 Hopkins v. Lee, 14, 214, 217 
 Hopkins v. Mayzck, 871 
 Hopkins v. Yowell, 215 
 Hopper v. Hopper, 497 
 Hopper v. Smyser, 286 
 Hopp v. Lutkin, 836 
 Hoppes v. Cheek, 351, 443, 838, 840 
 Hoppin v. Hoppin, 519 
 Horbach v. Boyd, 521 
 Horbach v. Gray, 671 
 Horn v. Butler, 725 
 Hornbeck v. Building Assn., 71 
 Hornbeck v. Westorook, 45 
 Home v. Rogers. 34, 195, 197, 603, 
 
 757 
 
 Hooner Y. Lowe, 650 
 Horner v. State Bank, 9S) 
 Horrigan v. Rice, 261 
 Horrocks v. Rigby, 491 
 Horsford v. Wrfeht, 398 
 Horton v. Arnold, 448, 616 
 Hosford v. Nichols, 146
 
 TABLE OF CASKS). 
 [REFERENCES ABE TO PAGES.] 
 
 xlv 
 
 Hough v. Rawson, 604 
 
 Hough taling v. Lewis, 657 
 
 House v. Kendall, 587, 769 
 
 House v. McCormick, 520 
 
 Houslay v. Lindsay, It 
 
 Houston v. Dickinson, 400 
 
 Houston v. Henley, 194, 834, 84J 
 
 Houston v. Randolph, 65 
 
 Houx v. Bates Co., 570 
 
 Howard v. Doolittle, 353 
 
 Howard v. ]Sorth, 137 
 
 Howard v. Randolph, 43, 456, 477 
 
 Howe v. Harrington, 155, 545 
 
 Howe v. Hunt, 712 
 
 Howe v. Hutehinson, 164 
 
 Howe v. Walker, 283 
 
 Howell v. Richards, 255, 338, 351 
 
 Howes v. Barker, 657 
 
 Howland v. Bradley, 502 
 
 Hoxie v. Finney, 548 
 
 Hoy v. Smythies, 2!) 
 
 Hoy v. Taliaferro, 367, 446 
 
 Hoyt v. Dimon, 529 
 
 Hoyt v. Ketcham, 776 
 
 Hoyt v. Tuxbury, 165, 786, 802 
 
 Hubbard v. Chappel, 458, 844 
 
 Hubbard v. Norton, 306, 322, 380, 
 
 410 
 
 Hubert v. Grady, 472 
 Hudgin v. Hudgin, 107, 138, 513 
 Hudson v. Max M. L, & I. Co., 492, 
 
 804 
 
 Hudson v. Steare, 300 
 Hudson v. Swift, 200, 612 
 Hudson v. Watson, 200, 208 
 Huff v. Chamberlain, 365 
 Huff v. Cumberland Val. Land Co., 
 
 365 
 
 Huff v. Reilly, 357, 414 
 Huffman v. Gains, 131 
 Hughes v. McNider, 459, 537, 813 
 Hughes v. Parker, 20, 21 
 Huish's Charity, In re, 715 
 Hulett v. Hamilton, 650 
 Hulfish v. O'Brien, 435, 667 
 Hull v. Hull. 107, 138, 340 
 Hulse v. White, 391, 416 
 Hume v. Bentley, 29, 184, 817 
 Hume v. Dessar, 844 
 Hume v. Pocock, 29, 249, 724 
 Humphrey v. Clement, 300, 497, 409 
 Humphrey v. McClenachan, 410, 860 
 Humphrey v. Wade, 78 
 Humphreys v. Hurtt, 555 
 Humphreys v. Moses, 734 
 Humpkey v. Norris, 15 
 Hun v. Bourdon, 191 
 Hundley v. Tibbitts, 792 
 Hunt v. Amidon, 358, 381, 451, 676 
 Hunt v. Marsh, 446 
 Hunt v. Middlesworth, 383, 463 
 
 Hunt v. Moore, 243, 246 
 
 Hunt v. Orwig, 381, 389, 405 
 
 Hunt v. Rousmaniere, 868, 872, 874 
 
 Hunt v. Silk, 191, 697 
 
 Hunt v. Smith, 494 
 
 Hunt v. Stearns, 808 
 
 Hunt v. Weir, 769 
 
 Hunter, In re, 20 
 
 Hunter v. Bales, 481, 821 
 
 Hunter v. Goudy, 201 
 
 Hunter v. Graham, 475 
 
 Hunter v. Jameson, 155 
 
 Hunter v. O'Neill, 34 
 
 Hunter v. Watson, 45 
 
 Huntley v. Waddell, 337, 342 
 
 Huntsman v. Hendricks, 412 
 
 Hurd v. Hall, 858, 860 
 
 Kurd v. Smith, 444 
 
 Hurley v. Brown, 480, 807 
 
 Hurley v. Coleman, 458 
 
 Hurst v, Litligrow, 382 
 
 Hurst v. McNeil, 180 
 
 Hurst v. Means, 15, 16, 603, 616,628 
 
 Hurt v. Blackstown, 190 
 
 Hurt v. McReynolds, 190, 478, 601 
 
 Hussey v. Roqueniore, 578 
 
 Huston v. Noble, 704 
 
 Hutchins v. Brooks, 109 
 
 Hutchins v. Carleton, 50 
 
 Hutchins v. Moody, 300 
 
 Hutchins v. Rountree, 415 
 
 Hutchinsou v. A ins worth, 576 
 
 Hutchinson v. Crowley, 201 
 
 Hutchinson v. McNutt, 480, 797 
 
 Hutson v. Furnas, 557, 571 
 
 Huyck v. Andrews, 302, 304, 308 
 
 Hyatt v. Seeley, 151 
 
 Hyde v. Dallaway, 31, 737 
 
 Hyde v. Keller, 201, 692, 772 
 
 Hyde v. Kelly, 493 
 
 Hyde v. Redding, 103 
 
 Hyman v. Boston Chair Mfg. Co., 343, 
 
 364 
 
 Hymes v. Branch, 710, 720, 767 
 Hymes v. Esty, 304, 306, 310, 413 
 Hymes v. Van Cleef, 391 
 Hyne v. Campbell, 762, 766, 860 
 Hynes v. Oldham, 92 
 Hynes v. Packard, 409 
 Hyslip v. French, 695 
 
 Ice v. Ball, 657 
 
 Ikelheimer v. Chapman, 113 
 
 111. Land Co. v. Boomer, 385, 389, 525 
 
 Inderlied v. Honeywell, 356 
 
 Ingalls v. Cook, 293, 526 
 
 Ingalls v. Eaton, 275, 277, 279 
 
 Ingalls v. Hsilin. 12, 17, 719 
 
 Inge v. Lippingwell, 581 
 
 Ingraham v. Grigg, 63, 70
 
 xlvi 
 
 TABLE OF CASES. 
 
 [REFERENCES ARE TO PAGES.] 
 
 Ingraham v. Ward, 445 
 
 Ingram v. Little, 49 
 
 Ingram V. Morgan, 245, 833, 839 
 
 Inness v, Agnew, 205, 333 
 
 Innis v. Willis, 20, 587, G91 
 
 Ins. Co. v. Marshall, 650 
 
 Irbey v. Wilson, 103 
 
 Irick v. Fulton, 8G9 
 
 Irvin v. Askew, 214 
 
 Irvin v. Blackley, 201, 205, 539 
 
 Irvine v. Irvine, 5, 11, 539, 551 
 
 Irving v. Browuell, 68 
 
 Irving v. Campbell, 721, 728, 763 
 
 Isaacs v. Skrainka, 798, 829 
 
 Isele v. Arlington Sav. Bank, 302 
 
 Ishmael v. Parker, 200 
 
 Isler v. Eggers, 619 
 
 Ives v. Kimball, 62 
 
 Ives v. Niles, 336, 426, 671, 673 
 
 Ives v. Pierson, 112 
 
 Ivey v. McKennon, 106 
 
 J. 
 
 Jack v. McKee, 214 
 Jackson v. Ashtou, 692 
 Jackson v. Bradford, 534, 547 
 Jackson v. Brown, 137 
 Jackson v. Bull, 5, 16, 544 
 Jackson v. Cory, 45 
 Jackson v. Conlin, 164 
 Jackson v. Dermont, 259 
 Jackson v. Edwards, !)(), 498, 804, 830 
 Jackson v. Fosbender. 458 
 Jackson v. Green. 257. 339 
 Jackson v. Hoffman, 286, 341, 524 
 
 524 
 
 Jackson v. Hubbell, -183, 544 
 Jackson v. Knight, 607 
 Jackson v. Ligon, 187, 195, 800, 813, 
 
 817, 827 
 
 Jackson v. Littell, 52.'), 544 
 Jackson v. Marsh, 424 
 Jackson v. McCauley, 357, 371 
 Jackson v. McGinniss. 137 
 Jackson v. Mills, 524 
 Jackson v. Moncrief, 618 
 Jackson v. Murray, 544, 732, 769, 813 
 Jackson v. Norton, 635, 834, 847 
 Jackson v. Peck, 544 
 Jackson v. Rosevelt, 128, 129 
 Jackson v. Sassaman, L80 
 Jackson v. Schoonmaker, 44 
 Jackson v. Sellick, 362 
 Jackson v. Summerville, 523 
 Jackson v. Turner, 214, 391, 414 
 Jackson v. Vanderheyden, 541, 542 
 Jackson v. Waldron, 550 
 Jackson v. Walsh L. Co., 849 
 Jackson v. Whitehead, 28, 30 
 Jackson v. Winslow, 519, 544, 546 
 Jackson v. Wright, 483 
 
 Jacobs v. Locke, 494 
 
 Jacobs v. Morrison, 715 
 
 Jacocks v. Gillian, 330 
 
 Jacoway v. Gault, 64, 71 
 
 Jacques v. Vigo Co., 481 
 
 James v. Cutler, 566 
 
 James v. Hayes, 444, 657 
 
 James v. Jenkins, 307, 309 
 
 James v. Lamb, 404 
 
 James v. Lawrenceburgh Ins. Co., 463 
 
 James v. Lichfield, 491, 500 
 
 James v. McKennon, 857 
 
 James v. Myers, 91, 711, 734, 756 
 
 James v. Warehouse Co., 306, 413 
 
 James v. Shore, 826 
 
 Jandorf v. Patterson, 856 
 
 Jaques v. Esler, 453, 468, 640. 838 
 
 Jarboe v. McAtee, 744, 754, 797 
 
 Jarden v, Lafferty, 436 
 
 Jarman v. Davis, 704 
 
 Jarrett v. Jarrett, 568 
 
 Jarvis v. Aiken, 531 
 
 Jasper v. Hamilton, 249, 250 
 
 Jayne v. Boisgerard, 138 
 
 Jayne v. Brock, 608 
 
 Jefferson v. Curry, 129 
 
 Jeffery v. Underwood, 50 
 
 Jeffries v. Jeffries, 776 
 
 Jendvine v. Alcock, 819 
 
 Jenkins v. Buttrick, 298 
 
 Jenkins v. Fahig, 799, 820 
 
 Jenkins v. Hilcs, 816 
 
 Jenkins v. Hopkins, 269, 320, 351 
 
 Jenkins v. Whitehead, 798 
 
 Jenkinson v. Ewing, 478, 648 
 
 Jenks v. Quinn, 93, 381 
 
 Jenks v. Ward, 298, 300 
 
 Jenness v. Parker, 446, 455 
 
 Jenness v. Spraker, 588 
 
 Jennings v. Brizendine, 556, 560 
 
 Jennings v. Jenkins, 78 
 
 Jennings v. Jennings, 79 
 
 Jerald v, Elley, 326 
 
 Jerome v. Scudder, 483, 492, 494 
 
 Jervois v. Duke of Northumberland, 
 
 706 
 Jeter v. Glenn, 281, 312, 356, 417, 
 
 422, 475 
 
 Jett v. Farmers' Bank, 433 
 Jctt v. Locke, 626 
 Jewell v. Bannon, 451 
 Jewell v. Porter, 519 
 Jewett v. Fisher, 289, 421 
 John's Estate, 115 
 Johns v. Frick, 118 
 Johns v. Hardin, 347, 366, 424, 426 
 Johns v. Nixon, 475 
 Johnson's Appeal, 673 
 Johnson v. Branch, 519, 547 
 Johnson v. Burnside, 620, 624 
 Johnson v. Caldwell, 137
 
 TABLE OF CASES. 
 
 [REFERENCES ABE TO PAGES.] 
 
 xlvii 
 
 Johnson v. Collins, 202, 291 
 
 Johnson v. Dorough, 603 
 
 Johnson v. Farlow, 521 
 
 Johnson v. Fuller, 484 
 
 Johnson v. Gere, 453, 637, 838 
 
 Johnson v. Hathorn, 657 
 
 Johnson v. Hollensworth, 280, 332 
 
 Johnson v. Houghton, 826, 864 
 
 Johnson v. Jarrett, 198 
 
 Johnson v. Jones, 446, 835, 848 
 
 Johnson v. Johnson, 524 
 
 Johnson v. Long, 472 
 
 Johnson v. McGhee, 62 
 
 Johnson v. Monell, 286 
 
 Johnson v. Nichols, 289 
 
 Johnson v. Nyce, 300, 359 
 
 Johnson v. Oppenheim, 353 
 
 Johnson v. Pryor, 244 
 
 Johnson v. Purvis, 476 
 
 Johnson v. Robertson, 137 
 
 Johnson v. Smock, 35 
 
 Johnson v. Sandhoff, 138 
 
 Johnson v. Silsfill, 609 
 
 Johnson v. Thweatt, 174 
 
 Johnson v. Tool, 38 
 
 Johnson v. Walton, 284 
 
 Johnson v. Williamson, 646 
 
 Johnson v. Wilson, 838 
 
 Johnson v. Wygant, 206, 207 
 
 Johnston v. Beard. 200, 208, 209 
 
 Johnston v. Gallery, 776 
 
 Johnston v. Haines, 58 
 
 Johnston v. Houghton, 22 
 
 Johnston v. Johnston, 206 
 
 Johnston v. Markle Paper Co., 284 
 
 Johnston v. Mendenhall, 38, 150 
 
 Johnston v. Piper, 148, 149 
 
 Johnston v. Powell, 472 
 
 Johnston v. Scott, 52 
 
 Jones v. Bland, 436 
 
 Jones v. Blumenstein, 123 
 
 Jones v. Coffey, 106 
 
 Jones v. Cohen, 655 
 
 Jones v. Cohitsett, 265 
 
 Jones v. Davis, 291, 293 
 
 Jones v. Fulghum, 458, 639 
 
 Jones v. Gardner, 1, 35, 49, 300, 778 
 
 Jones v. Haff, 731 
 
 Jones v. Hanna, 724 
 
 Jones v. Jones, 424, 434 
 
 Jones v. Keen, 240 
 
 Jones v. King, 519 
 
 Jones v. Manley, 138 
 
 Jones v. Noe, 444 
 
 Jones v. Phillips, 36, 148 
 
 Jones v. Richmond, 356, 382 
 
 Jones v. Robbins, 812 
 
 Jones v. Shackelford, 492 
 
 Jones v. Shay, 399 
 
 Jones v. Smith, 137 
 
 Jones v. Stanton, 838 
 
 Jones v. Sweet, 576 
 Jones v. Tarver, 48 
 Jones v. Taylor, 190, 602, 731, 793, 
 
 807, 815 
 
 Jones v. Waggoner, 424, 838 
 Jones v. Warner, 260, 263, 264 
 Jones v. Warnock, 109 
 Jones v. Wood, 657 
 Jopling v. Dooley, 826 
 Jordan v. Blackniore, 273 
 Jordan v. Denton, 480 
 Jordan v. Eve, 305 
 Jordan v. Poillon, 752, 760 
 Joslyn v. Schwend, 812 
 Joslyn v. Taylor, 36 
 Josselyn v. Edwards, 252 
 Jourdain v. Jourdaiu, 330 
 Joyce v. Ryan, 648, 676 
 Judd v. nandall, 280 
 Judice v. Kerr, 122 
 Judson v. Wass, 35, 587, 601, 777 
 Julian v. Beal, 140 
 Junk v. Barnard, 213 
 Juvenal v. Jackson, 671 
 
 K. 
 
 Kahn v. Mount, 737, 744, 780 
 
 Kaiser v. Earhart, 519 
 
 Kane v. Fisher, 419 
 
 Kane v. Hood, 206 
 
 Kane v. Rippey, 594 
 
 Kane v. Sanger, 379, 382, 384 
 
 Kans. Pae. If. Co. v. Dunmyer, 358, 
 
 368, 406 
 
 Kares v. Covell, 604 
 Karker v. Haverly, 204, 774 
 Katz v. Henig, 13 
 Katz v. Kaiser, 787, 791 
 Kauffelt v. Leber, 155, 157 
 Kauffman v. Walker, 88 
 Kavanagh v. Kingston. 386 
 Kearney v. Hogan, 776 
 Keating v. Guntlier, 195, 828 
 Keating v. Korfhage, 303 
 Keating v. Price, 822, 827, 829 
 Kebler v. Cureton, 477, 6U.1 
 Keeble v. Bank, 815 
 Keeler v. Wood, 398, 417, 423 
 Keep v. Simpson, 815 
 Keepfer v. Force, 571 
 Keifer v. Roger, 242 
 Keim v. Lindley, 4S5, 487 
 Keim v. Sachs, 789 
 Keitel v. Zimmerman. 772 
 Keith v. Silberberg, 72 
 Keller v. Ashford, 288 
 Kellogg v. Chapman, 559 
 Kellogg v. Ingersoll. 306 
 Kellogg v. Malin, 305, 31S, 322 
 Kellogg v. Robinson, 301 
 Kellogg v. Wood, 389, 526
 
 xlviii 
 
 TABLE OF CASES. 
 
 [REFERENCES ARE TO PAGES.] 
 
 Kellum v. Ins. Co., 260, 299 
 
 Kelly v. Allen, 628 
 
 Kelly v. Bibb, 490 
 
 Kelly v. Bradford, 149 
 
 Kelly v. Brower, 828 
 
 Kelly v. Calhouu, Gl, 63 
 
 Kelly v. Dutch Church, 351, 356, 394, 
 
 408, 431 
 
 Kelly v. Jenness, 524 
 Kelly v. Kershaw, 616 
 Kelly v. Lowe, 318, 372, 469 
 Kelly v. Price, 410 
 Kelly v. R. Co., 235 
 Kelly v. Riley, 681 
 Kelly v. Solari, 122 
 Kelly v. Turner, 560 
 Kelly v. Wiseman, 431 
 Kelsey v. Crowther, 166, 201 
 Kelsey v. Remer, 291, 321 
 Kelso v. Lorillard, 768 
 Kemp v. Penna. R. Co., 661 
 Kemp v. Porter, 60 
 Kemper v. Walker, 802, 822 
 Kempner v. Cohn, 214 
 Kempner v. Lumber Co., 340, 392, 
 
 410 
 
 Kempshall v. Stone, 487 
 Kendall v. Crawford, 760 
 Kennedy's Appeal, 674 
 Kennedy v. Embry, 474 
 Kennedy v. Gramling, 738 
 Kennedy v. Johnson, 244 
 Kennedy v. Koopman, 770, 820 
 Kennedy v. McCartney, 527 
 Kennedy v. Newman, 279, 292 
 Kennedy v. Price 64 
 Kennedy v. Wool folk, 193 
 Kennison v. Taylor, 422, 423 
 Kenniston v. Blakie, 73, 74 
 Kenny v. Gardner, 602 
 Kenny v. Hoffman, 148, 251, 783, 
 
 787, 806 
 
 Kenny v. Norton, 263 
 Kent v. Allen, 720 
 Kent v. Cantrall, 281, 326 
 Kent v. Chalfant, 156 
 Kent v. Hareourt, 520 
 Kent v. Watson, 545 
 Kent v. Welch, 356 
 Kentucky Dist., &c., Co. v. Warwick 
 
 Co., 164 
 
 Kercheval v. Triplett, 527 
 Kern v. Kloke, 357 
 Kerney v. Gardner, 602 
 Kerr v. Kitchen, 245, 671, 677 
 Kerr v. Purdy, 204 
 Kerr v. Shaw, 365, 371 
 Kerrigan v. Backus, 775 
 Kerst v. Ginder, 203 
 Kester v. Rockel, 820 
 Ketchum v. George, 116 
 
 Ketchum v. Evertson, 150, 579 
 
 Ketchum v. Stout, 494 
 
 Key v. Hanson, 443, 462, 464 
 
 Key v. Jennings, 446, 2:$, 841 
 
 Key v. Key, 227 
 
 Keyse v. Heydon, 29 
 
 Keyse v. Powell, 21 
 
 Keyton v. Bradford, 849 
 
 Kibler v. Cureton, 836 
 
 Kidder v. Bork, 359 
 
 Kiefer v. Roger, 233, 245, 249 
 
 Kieii v. Stukely, 806 
 
 Kilgore v. Pedin, 126 
 
 Kilpatrick v. Barron, 721, 767 
 
 Kilpatrick v. Stozier, 573 
 
 Kimball v. Bell, 598, 811 
 
 Kimball v. Blaisdell, 534 
 
 Kimball v. Bryant, 266, 412 
 
 Kimball v. Grand Lodge, 351, 352 
 
 Kimball v. Johnson, 58 
 
 Kimball v. Saguin, 371, 602, 687 
 
 Kimball v. Schaff, 525 
 
 Kimball v. Semple, 59, 6:5, 332, 340, 
 
 548 
 
 Kimball v. West, 443, 538, 633, 639 
 Kimball v. Tooke, 707 
 Kimbrough v. Burton, 122 
 Kime v. Kirne, 201 
 Kimmel v. Benna, 545 
 Kimmel v. Scott, 824 
 Kincaid v. Britain, 255, 256, 259, 271 
 Kindley v. Gray, 798 
 King v. Bressie, 338, 395, 451 
 King v. Doolittle, 873 
 King v. Gilson, 211, 537, 538, 540 
 King v. Gunnison, 109, 674 
 King v. Jones, 258, 438 
 King v. Kerr, 320, 334, 370. 384, 391, 
 
 410, 414, 429, 431 
 King v. Kilbride, 288, 366 
 King v. King, 190 
 King v. Knapp, 239, 732, 828 
 King v. Pyle, 225 
 King v. Rea, 542 
 King v. Savery, 188 
 King v. Thompson, 702 
 King v. Wilson, 822 
 Kingdon v. Nottle, 258, 2G5, 382 
 Kingsbury v. Milher, 837, 845 
 Kingsbury v. Smith, 420 
 Kingsbury v. Stoltz, 127 
 Kingston Bank v. Ettinge, 122 
 Kinney v. Knoebel, 136 
 Kinney v. McCulloch, 311 
 Kinney v. Norton, 372 
 Kinney v. Watts, 391, 408 
 Kinports v. Rawson, 849, 851 
 Kinsman v. Loomis, 529, 545 
 Kintrea v. Preston, 22 
 Kip v. Hirsh, 761, 787, 788 
 Kirby v. Estill, 366, 424
 
 TABLE OF CASES. 
 
 zlix 
 
 [REFERENCES ARE TO PAGES.] 
 
 Kirk v. Zell, 558, 569 
 Kirkendall v. Mitchell, 145, 331 
 Kirkland v. Little, 206, 726, 727 
 Kirkland v. Wade, 110, 6C5 
 Kirkpatrick v. Downing, 214, 229,701 
 Kirkpatrick v. Pearce, 297, 326 
 Kirkpatrick v. Miller, 371 
 Kirkwood v. Lloyd, 737 
 Kirtland v. Pounsett, 189, 220 
 Kirtz v. Pet-K, 633 
 Kley v. Geiger, 292 
 Klopp v. Moore, 156, 157 
 Klumpki v. Baker, 519 
 Knadler v. Sharp, 265, 321 
 Knapp v. Lee, 36, 446, 461, 609 
 Knapp v. Marlboro, 431 
 Knatchbull v. Grueber, 188, 193, 692, 
 
 829 
 
 Knedler v. Lang, 741, 743 
 Knepper v. Kurtz, 365 
 Knight v. Coleman, 473 
 Knight v. Crockford, 202 
 Knight v, Maloney, 758 
 Knight v. Thayer, 531, 542 
 Knight v. Turner, 443 
 Knipe v. Palmer, 154, 156 
 Knowles v. Kennedy, 538 
 Knowlton v. Amy, 238 
 Koch v. Hustis, 341 
 Koepke v. Winterfield, 363 
 Roger v. Kane, 461, 468, 833, 849 
 Kohner v. Higgins, 39 
 Kolher v, Kolher, 82 
 Kopp v. Kopp, 734 
 Kornegay v. Everett, 562, 869 
 Kortz v. Carpenter, 361 
 Koshland v. Spring, 776 
 Kostenbader v. Spotts, 69, 731 
 Kostendader v. Pierce, 305, 323 
 Kountze v. Hellmuth, 191, 776 
 Kramer v. Carter, 370, 372, 375, 376 
 Kramer v. Ricke, 657 
 Kraemer v> Adelsberger, 720 
 Krause v. Krause, 20 
 Kreibich v. Martz, 188, 734 
 Kreitsch v. Mertz, 810 
 Krekeler v. Aulbach, 777, 782 
 Krewson v. Cloud, 248 
 Kruger v. Adams, 38 
 Krumm v. Boach. 13, 224, 234, 237 
 Kuchenbeiser v. Beckert, 107 
 Kuhn v. Freeman, 354, 824 
 Kuhner v. Parker, 447, 458 
 Kuhn's Appeal, 669 
 Kill I man v. Cox, 717 
 Kurtz v. Hollingshed, 44 
 Kutz v. McCune, 302, 304, 307 
 Kyle v. Fauntelroy, 415, 417, 420 
 Kyle v. Kavanaugh, 150, 865 
 Kyle v. Febley, 285, 868 
 
 Lacey v. Marman, 273 
 
 Lacey v. McMillan, 192 
 
 Ladd v. Blunt, 140 
 
 Ladd v. Montgomery, 312 
 
 Ladd v. Myers, 289 
 
 Ladd v. Noyes, 263, 301 
 
 Ladd v. Weiskopf, 714, 718, 722 
 
 Laderoute v. Chale, 288 
 
 Ladue v. Cooper, 310 
 
 Ladue, In re, 767 
 
 Lafarge v. Matthews, 444, 622 
 
 Lafferty v. Milligan, 294 
 
 Laidlaw v. Organ, 238 
 
 Lake v. Brutton, 241 
 
 Lake Erie, etc., R. Co. v. Whitbam, 
 
 69 
 
 Lallande v. West, 304 
 Lally v. Holland, 573 
 Lamb v. Baker, 359 
 Lamb v. Burbank, 439 
 Lamb v. Danforth, 259, 350, 375 
 Lamb v. James, 406, 609, 655 
 Lamb v. Kami, 547 
 Lamb v. Smith, 680 
 Lamb v. Wakefield, 340, 547 
 Lambden v. Sharp, 55 
 Lambert v. Kstes, 363, 368 ? 392 
 Lamerson v. Marvin, 447, 462 
 Lamkin v. Reese, 81, 114, 556, 865 
 Lammot v. Bowley, 869 
 Lamprey v. Whitehead, 736 
 Lampton v. Usher, 114, 609 
 Lancaster v. Wilson, 89, 105, 106 
 Lancoure v. Dupre, 225, 702, 703 
 Land Co. v. Hill, 633, 839 
 Land Co. v. North, 357 
 Landlord v. Dunkton, 115 
 Landsdowne v. Landsdowne, 869, 871, 
 
 874 
 
 Landt v. Mayor, 275 
 Lane v. Bommelman, 93 
 Lane v. Fury, 370, 374, 423 
 Lane v. Latimer, 695 
 Lane v. Patrick, 655 
 Lane v. Richardson, 291, 315 
 Lane v. Tidball, 461, 851 
 Lane v. Woodruff, 385 
 Lang v. Waring, 118 
 Lange v. Jones, 493, 849 
 Langford v. Pitt, 798 
 Langford v. Selmes, 21 
 Langlow v. Cox, 165 
 Langsdale v. Nicklaus, 295 
 Langton v. Marshall, 65 
 Lanier v. Foust, 474 
 Lanier v. Hill, 244, 252, 606, 855, 875 
 I Lanigan v. Kille, 407, 408 
 j Lanitz v. King, 191 
 
 Lansing v. Quackenbush, 123 
 I Lansing v. van Alstyne, 358, 369
 
 TABLE OF OASES. 
 
 [REFERENCES ABE TO PAGES.] 
 
 Lant v. Norria, 332 
 
 I>anyon v. Chesney, 495 
 
 Large v. McLain, 281 
 
 Latham v. Morgan, 841 
 
 Lathers v. Keogh, 295, 296 
 
 Latimer v. Capay Val. Co,, 192 
 
 Latimer v. Wharton, 84 
 
 Lattin v. Vail, 447 
 
 Lauer v. Lee, 578, 581 
 
 Laughnian v. Thompson, 102, 113 
 
 Laughery v. McLean, 444, 477 
 
 Laurens v. Lucas, 708 
 
 Laurenson v. Butler, 495, 502 
 
 Lavender v. Lee, 556 
 
 Laverty v. Moore, 732 
 
 Law v. Grant, 236 
 
 Law v. Hyde, 572 
 
 Lawless v. Collier, 265, 274, 404, 633, 
 
 642 
 
 Lawless v. Evans, 274 
 Lawless v. Mansfield, 506 
 Lawrence v. Beaubein, 870, 871, 872 
 Lawrence v. Chase, 214 
 Lawrence v. Dale, 14, 36, 194 
 Lawrence v. Montgomery, 311 
 Lawrence v. Parker, 47 
 Lawrence v. Simonton, 207 
 Lawrence v. Sinter, 380, 383 
 Lawrence v. Taylor, 36, 202, 595 
 Lawton v. Howe, 404, 860 
 Leach v. Forney, 497 
 Leach v. Johnson, 187 
 Leach v. Leach, 777 
 Leach v. Pxowley, 610, 726 
 Leahy v. Hair, 710 
 Leal v. Terbush, 446, 463, 464 
 Leary v. Durham, 146, 350, 366, 444 
 Learned v. Eiley, 62 
 Leather v. Poulteny, 106, 428, 431 
 Lebanon Sav. Bank v. Hollenbeck, 575 
 Leddy v. Enos, 281, 357, 373 
 Lee v. Clary, 519 
 Lee v. Dean, 220, 225, 668, 687 
 Lee v. Foard, 35 
 Lee v. Gardiner, 138 
 Lee v. Lee, 752, 767 
 Lee v. Porter. 508 
 Lee v. Russell, 211 
 Leet v. Gratz, 370, 404, 406 
 Leffingwell v. Elliott, 370, 404, 422, 
 
 423 
 
 Leffingwell v. Warren, 737 
 Leflore Co. v. Allen, 524 
 Lt'ftwich v. Xeal, 67 
 Leggett v. McCarty, 459, 639, 838 
 Lcggett v. Mut. Ins. Co., 231 
 Leiker v. Henson, 493 
 Leinhardt v. Kalcheim, 776 
 Leird v. Abernethy, 833, 839 
 Lejeune v. Barrow, 414 
 Lejeune v. Herbert, 683 
 
 Leland v. Stone, 284, 397 
 
 Lemon v. Kogge, 768 
 
 Le Moyne v. Quimby, 112 
 
 Lenehan v. College, 755 
 
 Leonard v. Austin, 450, 468 
 
 Leonard v. Bates, 145, 206 
 
 Leonard v. Cary, 367 
 
 Leonard v. Mills, 567 
 
 Leonard v. Pitney, 661, 686 
 
 Leonard v. Woodruff, 735 
 
 Lerfing v. Seelig, 293 
 
 Lerman v. Hubner, 737 
 
 Le Roy v. Beard, 154 
 
 Lesesne v. Witte, 797 
 
 Leslie v. Slusher, 43 
 
 Lesley v. Morris, 711, 777, 815 
 
 Lessenich v. Sellers, 166, 189 
 
 Lessley v. Bowie, 475, 477 
 
 Letcher v. Woodson, 213 
 
 Lethbridge v. Kirkman, 28, 724 
 
 Lethbridge v. Mytton, 282 
 
 Lett v. Brown, 615, 622 
 
 Levitzky v. Canning, 353, 422 
 
 Levy v. Bond, 353 
 
 Levy v. Iroquois Bldg. Co., 748 
 
 Levy v. Hill, 779, 790 
 
 Levy v. Newman, 757 
 
 Levy v. Riley, 113, 138 
 
 Lewis v. Baird, 517 
 
 Lewis v. Bibb, 276 
 
 Lewis v. Bond, 30 
 
 Lewis v. Boskins, 506 
 
 Lewis v, Braithwaite, 21 
 
 Lewis v. Cook, 380, 382 
 
 Lewis v. Coxe, 769, 777 
 
 Lewis v. Davis, 443 
 
 Lewis v. Day, 38 
 
 Lewis v. Gale, 487 
 
 Lewis v. Herndon, 739 
 
 Lewis v. Jones, 250 
 
 Lewis v. Lee, 214 
 
 Lewis v. Lewis, 359, 572 
 
 Lewis v. McMillen, 464, 581, 593, 609. 
 
 616, 626 
 
 Lewis v. Morton, 445, 638, 645 
 Lewis v. Ridge, 263 
 Lewis v. Ross, 401 
 Lewis v. West, 450 
 Lewis v. White, 18, 39, 580, 591, 690 
 Ley v. Huber, 807 
 Libby v. Hutchinson, 377 
 Liber v. Parson, 399 
 Liddell v, Sims, 691 
 Life Association v. Siddall, 187 
 Lighty v. Shorb, 670, 672 
 Lillard v. Ruckers, 45 
 j^inderman v. Berg, 426 
 Lindley v. Dakin, 260, 299 
 Lindley v. Lukin, 224 
 Lindsay v. Eastwood, 294 
 Linkous v. Cooper, 757
 
 TABLE OF CASES. 
 
 II 
 
 [CEFEBEXCI8 AEE TO PAGES.] 
 
 Linn v. Barkey, 145 
 
 Linn v. McLean, 732, 817 
 
 Linsey v. Ferguson, 622 
 
 Linsey v. Ramsey, 519 
 
 Linton v. Allen, 35, 288, 523, 610 
 
 Linton v. Hichborn, 781 
 
 Linton v. Porter, 112 
 
 Lister v. Batson, 213 
 
 j^ippincott v. Wikoff, 714 
 
 Little v. Allen, 331, 863 
 
 Little v. Dodge, 67 
 
 Little v. Paddleford, 595 
 
 Littlefield v. Getchell, 380 
 
 Littlefield v. Tinsley, 190, 602. 698, 
 
 703, 718. 731. 759 
 ^ively v. Rice, 288 
 Livingston Bank v. Sailing, 286 
 Livingston v. Iron Works, 259 
 Livingston v. McDonald, 59 
 Livingston v. Short, 847 
 Lloyd v. Farrell, 150, 666, 684 
 Lloyd v. Griffiths, 147 
 Lioyd v. Jewell, 36, 461 
 Lloyd v. Kirkwood, 107 
 Lloyd v. Quimby, 152, 291, 31.3, 3S5, 
 
 399, 405 
 
 Lloyd v. Sandusky, 392, 403, 409 
 Locke v. Furze, 212, 408 
 Locke v. Hale, 298 
 Locke v. White, 545, 548 
 Lockhart v. Smith, 721 
 Lockman v. Reilly, 723. 759 
 Lockridge v. Foster, 194, 239, 68G 
 Lockwood v. Gilson, 155, 157 
 Lockwood v. Hannibal & St. J. R. Co., 
 
 206, 815 
 Lockwood v. Sturtevant, 152, 25G, 257, 
 
 263, 385 
 
 Logan v. Bull, 744, 807 
 Logan v. Moore, 519, 521 
 Logan v. Neill, 519 
 Logan v. Steele, 519 
 Logansport v. Case, 132 
 Logue v. Atkinson, 525 
 Loiseau v. Threlstad, 410 
 London Bridge Acts, 154 
 Long v. Brown, 556, 865 
 Long v. Crews, 58, 62 
 Long v. Hartwell, 641 
 Long v. Howard, 424 
 Long v. Israel, 468, 639, 849 
 Long v. filler, 484 
 Long v. Moler, 284, 291. 295 
 Long v. Saunders, 615 
 Long v. Wheeler, 417, 423 
 Long v. Waring, SO 
 Long v. wellcr, 78 
 Longworth v. Taylor. 711 
 Loomis v. Bedell, 340. 363. 367, 370. 
 
 404, 422 
 Loomis v. Pingree, 546, 550 
 
 Loomis v. Wadhams, 214 
 
 Looney v. Reeves, 394, 397, 398 
 
 Loos, In re, 130 
 
 Lord v. Stephens, 726 
 
 Lot v. Thomas, 256, 259, 263, 526 
 
 Lothrop v. Snell, 356, 446 
 
 London v. Robertson, 110 
 
 Lougher v. Williams, 350 
 
 Loughran v. Ross, 260 
 
 Louisville, etc., R. Co. v. Stone Co., 
 
 692 
 Lounsbery v. Locander, 35, 14t>, 492, 
 
 495 
 
 Lounsbery v. Snyder, 353 
 Lourance v. Robertson, 392, 304, 401 
 Love v. Berry, 112 
 Love v. Camp, 482, 500 
 Love v. Cobb, 482 
 Love v. Powell, 127 
 Lovelace v. Harrington, 843 
 Loveridge v. Coles, 612 
 Lovett v. Saw Mill Assn., 61 
 Lovingston v. Snort, 638, 69(5 
 Lowdermilk v. Corpenning, 130 
 Lowe v. Allen, 574 
 Lowe v. Lush, 707, 730 
 Lowell v. Daniels, 541 
 Lowndes v. Chishohn, 870 
 Lowery v. Nicols, 811 
 Lowery v. Yawn, 363 
 Lowery v. Tilleny, 258, 263, 266 
 Lowry v. Brown, 653 
 'Lowry v. Cox, 222 
 Lowry v. Hurd, 633 
 Lowry v. Muldrow, 767 
 Lowther v. Com'th, 391 
 Loyd v. Malone, 106 
 Lucas v. Chapeze, 607 
 Lucas v. Scott, 497, 500 
 Lucas v. Wilcox, 410 
 Luchetti v. Frost, 201 
 Luckett v. Triplett, 837, 847 
 Luckett v. Williamson, 35, 492, 743, 
 
 798, 819 
 
 Luckie v. McGlusson, 248, 252 
 Lucy v. Lexington, 257, 263 
 Ludlovv v. Gilman, 458 
 Ludlow v. O'Xeil, 764 
 Ludlow v. Van Jvess, 772 
 Ludwell v. Newman, 360 
 Ludwick v. Huntzinger, 657, 668, 670 
 Lukens v. Jones. 671 
 Lukens v. Nicolson. 433 
 Lull v. Stone, 34, 36, 38 
 Lundgren v. Kerkow, 367 
 Lunsford v. Turner, 371 
 Lurman v. Hubnor, 737 
 Luse v. Dietz. 807. 808 
 Lutweller v. Linnell, 208 
 Lutz v. Compton, 814 
 Lydall v. Weston, 169, 707, 713
 
 lii 
 
 TABLE OF CASES. 
 
 [HEFEKEXCES ABE TO PAGES.] 
 
 Lyle v. Earl of Yarborough, 816 
 Lyles v. Kirkpatrick, 738, 797 
 layman v. Gedney, 747 
 Lyman v. Stroudburgh, 734 
 Lynch v. Baxter, 109, 117, 695 
 Lynch, Ex parte, 422 
 Lynch v. Livingston, 58 
 Lynch v. Merc. Trust Co., 13 
 Lyon v. Anable, 681 
 Lyon v. Day, 598 
 Lyon v. Karn, 46 
 Lyon v. McCurdy, 115 
 Lyon v. O'Kell, 598 
 Lyon v. Richmond, 868, 874 
 Lyons v. Fitzpatrick, 648 
 Lyons v. Pyatt, 578, 810 
 Lysney v. Selby, 686 
 
 M. 
 
 Mabie v. Matteson, 155 
 
 Maccaw v. Crawley, 738 
 
 Mack v. Patchin, 210, 213, 407 
 
 Mackey v. Ames, 501, 802. 812 
 
 Mackey v. Collins, 356, 475 
 
 Mackey v. Harmon, 303, 322 
 
 Madden v. Leak, 853 
 
 Madely v. Booth, 28 
 
 Maeder v. Carondelet, 343. 433 
 
 Magaw v. Lathrop, 190, 804 
 
 Magee v. Hallett, 543 
 
 Magee v. McMillan, 203, 62S. S38, 848 
 
 Maginess v. Fallon, 194, 715, 737 
 
 Maguire v. Marks, 124, 140 
 
 Maguire v. Riggin, 265 
 
 Mahoney v. Allen, 83, 786 
 
 Mahony v. Robbins, 444 
 
 Main, Sir Anthony's Case, 203 
 
 Major v. Dunnavant, 410 
 
 Majors v. Brush, 602, 648, 676 
 
 Malins v. Freeman, 31 
 
 Mallard v. Allred, 603 
 
 Maltby v. Thews, 706 
 
 Manahan v. Smith, 398 
 
 Mandigo v. Conway, 311 
 
 Maner v. Washington, 477, 639, 676 
 
 Maney v. Porter, 249 
 
 Manifee v. Morrison, 156 
 
 Manitoba Fish Co. v. Booth, 18 
 
 Mann v. Matthews, 425, 427 
 
 Mann v. Young, 519 
 
 Manser v. Buck, 28, 31 
 
 Manson v. Brimfield Manf'g Co., 831 
 
 Manf'g. Co. v. Zellner, 341 
 
 Marbury v. Thornton, 356 
 
 Marcus v, Clark, 195 
 
 Mardes v. Myers, 46 
 
 Margraf v. Muir, 228, 488 
 
 Maris v. lies, 285 
 
 Markham v. Todd, 607 
 
 Markland v. Crump, 383 
 
 Markley v. Swartzlander, 73 
 
 Marks v. Halligan, 768 
 
 Marlin v. Willink, 618 
 
 Marple v. Scott, 298 
 
 Marsh v. Fish, 281 
 
 Marsh v. Sheriff, 252, 538 
 
 Marsh v. Thompson, 444 
 
 Marsh v. Wyckoff, 799 
 
 Marshall v. Oilman, 195 
 
 Marshall v. Caldwell, 492 
 
 Marshall v. Haney, 213 
 
 Marshall v. Hopkins, 464 
 
 Marshall v. Weininger, 776 
 
 Marston v. Bradshaw, 69 
 
 Marston v. Hobbs, 256, 262. 270, 275, 
 
 279, 325 
 
 Martin v. Anderson, 702 
 Martin v. Atkinson, 224, :573, 507 
 Martin v. Baker, 265 
 Martin v. Chambers, 615 
 Martin v. Colby, 498 
 Martin v. Cotter, 713, 737 
 Martin v. Cowes, 425 
 Martin v. Dollar, 571 
 Martin v. D welly, 66, 541. 576, 655 
 Martin v. Foreman, 470 
 Martin v. Gordon, 387, 402 
 Martin v. Hamlin, 761 
 Martin v. Hammon, 275 
 Martin v. Long, 271, 392 
 Martin v. Martin, 358 
 Martin v, McCormick, 859. 860 
 Martin v. Merritt, 228, 497 
 Martin v. Nixon, 563, 573 
 Martin v. Porter, 755, 758 
 Martin v. Wharton, 455 
 Marvin v. Applegate, 633. 695 
 Marvin v. Bennett, 864 
 Maryland v. Const. Co. v. Kuper, 793, 
 
 798 
 
 Mason v. Bovet, 14 
 Mason v. Brock, 66, 69, 70 
 Mason v. Caldwell, 156 
 Mason v. Cooksey, 363, 435 
 Mason v. Ham, 157 
 Mason v. Kellogg, 367, 429 
 Mason v. Lawing, 703 
 Mason v. Moulder, 576 
 Mason v. Swan, 702 
 Mason v. Wait, 112 
 Massey, Succession of, 117 
 Massie v. Craine, 260 
 Massie v. Sebastian, 542. 847 
 Masson v. Bovet, 194, 695, 697 
 Mastin v. Halley, 74, 563 
 Matheny v. Stewart, 417. 422 
 Mather "v. Corliss, 336 
 Mather v. Leman, 755 
 Mather v. Tremty. 362 
 Matney v. Rat! iff, 773 
 Matta v. Henderson, 695
 
 TABLE OF CASES. 
 
 liii 
 
 [REFERENCES ABE TO PAGES.] 
 
 Matteson v. Vaughn, 303, 367, 387, 
 
 636 
 
 Matthews v. Crowder, 839 
 Matthews v. Lightner, 722, 724 
 Mattock v. Kinglake, 200 
 Matthison v. Wilson, 204 
 Maule v. Ashmead, 354 
 Mawson v. Fletcher, 491, 503 
 Maxfield v, Bierbauer, 238, 602 
 Maxwell v. Gregory, 587 
 Maxwell v. Wilson, 337 
 May v. Adams, 570 
 May v. Arnold, 531 
 May v. Ivie, 473 
 May v. McKeenon, 59 
 May v. Wright, 391, 395 
 Mayer v. Adrian, 196 
 Mayes v. Blanton, 587 
 Maynard v. Moseley, 649 
 Mayo v. Babcock, 326 
 Mayo v. Purcell, 195 
 Mayor v. Baggatt, 343 
 Mayor v. Bulkley, 54 
 Mayor v. Mabie, 343, 352, 375 
 Mays v. Swope, 813 
 McAbee v. Cribbs, 287 
 McAleer v. McMullen, 575 
 McAllister v. Harmon, 740, 748, 804, 
 
 811 
 
 McAllister v. Landers, 408 
 McAlpine v. Reichenecker. 164, 588 
 MAlpin v. Woodruff, 392, 400, 408, 
 
 421 
 
 McAninch v. Laughlin, 868 
 Me Arthur v. Oliver, 551 
 McBride v. Greenwood, 545 
 McCabe v. Kenny, 740 
 McCaffrey v. Little, 80, 712, 713 
 McCahill v. Hamilton, 752, 788 
 McCall v. Wilkes, 335 
 McCann v. Edwards, 73S, 753, 763, 
 
 810, 813 
 
 McCartney v. King, 80, 123 
 McCarty v. Leggett, 262, 264, 315, 
 
 537 
 
 McCasland v. Life Ins. Co., 571, 562 
 McCasky v. Graff, 141 
 McCauley v, Moore, 189 
 McUaugherty v. Bennett, 360, 377, 
 
 379, 388 
 
 McClennan v. Prentice, 276, 635, 640 
 McClerkin v. Sutton, 273 
 McClure v. Campbell, 284. 295 
 McClure v. Gamble, 379, 391 
 McClure v. McClure. 269, 392 
 McClure v. Raben, 547 
 McConaughey v. Bennett, 360, 377. 
 
 379, 388 
 
 McComb v. Wright, 746, 816. 818 
 McConihe v. Fales, 637 
 McConnell v. Downs, 370 
 
 McConnell v. Dunlop, 225, 492 
 McConnell v. Little, 443 
 McConnell v. Smith, 109 
 McCool v. Jacobus, 36, 600 
 McCord v. Massey, 300, 509 
 McCorkle v. Rhea, 115 
 McCoy v. Bayley, 564 
 McCoy v. Lord, 373 
 McCracken v. Flanagan, 95 
 McCracken v. San Francisco, 188, 62S 
 McCracken v. Wright, 544 
 McCrady v. Brisbane, 265 
 MeCrath v. Myers, 459 
 McCraven v. McGuire, 60, 69 
 McCrillis v. Thomas, 368, 369 
 McCroskey v. Ladd, 166, 741 
 McCulloch v. Gregory, 715 
 McCullogh v. Boyd, 610 
 McCullogh v. Estis, 91 
 McCullough v. Cox, 464 
 McCusker v. McEvoy, 531 
 McDaniel v. Bryan, 633 
 McDaniel v. Evans, 184 
 McDaniel v. Grace, 443, 462, 464, 407 
 McDaniels v. Flower Brook Mfg. Co., 
 
 49, 61 
 
 McDermott v. McDermott, 746, 772 
 McDill v. Gunn, 285 
 McDonald v. Bach, 789, 808 
 McDonald v. Beall, 233, 650 
 McDonald v. Green, 446, 638, 848 
 McDonald v. Hanson, 134 
 McDonald v. Morgan, 46 
 McDonald v. Vaughan, 440. 695 
 McDonnell v. Milholland, 561 
 McDonough v. Cross, 137 
 McDonough v. Martin, 342 
 McDougal v. Dixon, 770 
 McDowell v. Hunter, 365 
 McDowell v. McKesson, 194, 578 
 McDowell v. Milroy, 318, 471 
 McDunn v. Des Moines, 633, 840 
 McElya v. Hill, 815, 839, 845 
 McFadden v. Rogers, 571 
 McFerran v. Taylor, 488 
 McGary v. Hastings, 358, 363, 30S. 
 
 370, 373, 404 
 McGavock v. Bell, 79 
 McGarrahan v. Mining Co., 174 
 McGee v. Carrico, 698 
 McGee v. Wains, 138 
 McGhee v. Ellis, 126, 140 
 McGhee v. Jones, 444, 603. 638. 839 
 McGinnis v. Noble, 510, 512, 668 
 McGlynn v. Maynz, 776 
 McGoodwin v. Stephenson, 385 
 McGoon v. Scales, 90 
 McGowan v. Bailey, 061 
 McGowan v. Meyers, 302, 308 
 McGown v. Wilkins. 83, 88 
 AlcGrane v. Kennedy, 711
 
 liv 
 
 TABLE OF CASES. 
 
 [ REFERENCES ABE TO PAGES.] 
 
 .ucGrew v. Harmon, 413 
 MeGuckin v. Milbank, 315, 317 
 McGuffey v. Humes, 391, 396, 414. 
 
 417 
 
 McGuire v. Bowman, 739 
 McGuire v. Jtly, 127 
 McHany v. Schenck, 137 
 McHenry v. Yokum, 463. 466 
 Melndoe v. Morman, 625, 698, 797 
 Mclnerny v. Beck, 45 
 Mclnnis v. Lyman, 351, 363, 535, 536 
 Mclntosh v. Smith, 122 
 Mclntyre v. Long, 650 
 Mclver v. Walker, 52 
 McKay v. Carrington, 698. 798, 804 
 McKee v. Bain, 404, 417, 423 
 McKee v. Brandon, 214 
 McKeen v. Beaupland, 620, 695 
 McKennan v. Doughman, 284, 292 
 McHenry v. Settles, 50 
 McKinney v. Jones, 798 
 McKinney v. Watts, 224, 826 
 ...c-Kinzie v. Stafford, 61 
 McKleroy v. Tulare, 145 
 McKoy v. Chiles, 60S 
 McLain v. Coulter, 511 
 McLane v. Allison, 341 
 McLarin v. Irvin, 625, 699, 741 
 McLaughlin v. Daniel. 513 
 McLaughlin v. McDaniel. 140 
 McLaughlin v. Miller, 295, 296 
 McLaurin v. McLaurin, 106 
 McLaurin v. Parker, 605 
 McLean v. Connerton. 472 
 McLean v. Webster, 372 
 McLeery v. McLeery, 552 
 McLemore v. Mabson, 244, 443, 628, 
 
 843, 848 
 McLennan v. Prentice. 274, 362, 538, 
 
 856 
 
 McLeod v. Barnum, 458 
 McLeod v. Skiles, 284 
 McLeod v. Snyder, 206 
 AlcLogan v. Brown, 127 
 McLowry v. Croghan, 213, 343 
 McMahon v. Stewart, 286 
 McManus v. Blackmar, 37, 38 
 McManus v. Cook, 698 
 McManus v. Keith, 80 
 McMath v. Johnson, 611 
 McMichael v. Russell. 318, 319 
 McMillan v. Reeves, 117 
 McMullan v. Butler Co., 360, 363 
 McMullin v. Wooley, 302, 376 
 McMurray v. Fletcher. 46 
 McMurray v. Spicer, 193, 813 
 McMurray v. St. Louis Oil Co., 868 
 McNair v. Compton, 214 
 McNally v. Haynes, 116 
 McNamara v. Artnur, 19 
 McNamara v. Pengilly, 47, 201 
 
 McXeal v. Calkins. 650 
 
 McXear v. McCoinber, 340, 414 
 
 McXeill v. Fuller, 738, 799 
 
 McXew v. Walker, 448 
 
 McPherson v. Schade, 728. 789, 828 
 
 McPherson v. Smith, 716. 736 
 
 McPike v. Heaton, 295, 311 
 
 McQueen v. Choteau, 487 
 
 McQueen v. Farquhar, 715. 822 
 
 McQueen v. State Bank. 613 
 
 McRea v. Purmort, 402 
 
 McTucker v. Taggart, 5C8 
 
 McWhirter v. Swaffer, 448. 538, 640 
 
 McWilliams v. Jenkins, G25 
 
 McWilliams v. Long, 205 
 
 McWilliams v. Xisley, 519 
 
 Mead v. Altgeld, 710, 759, 764 
 
 Mead v. Fox, 35, 166, 858 
 
 Mead v. Johnson, 150, 155, 858 
 
 Mead v. Martens. 708, 779 
 
 Mead v. Stack-pole, 360 
 
 Meade v. Brown. 338, 377 
 
 Meade v. Jones, 338 
 
 Meadows v. Hopkins, 506 
 
 Meadows v. Meadows, 115 
 
 Means v. Brickell, 82, 477 
 
 Meason v. Kaine, 211, 225 
 
 Mech. Bank v. Cleland, 821 
 
 Mich. Sav. & B. L. Assn. v. O'Connor. 
 
 79 
 
 Mecklem v. Blake, 265, 277, 635 
 Medina v. Stoughton, 650 
 Medlar v. Hiatt. 302, 308, 320 
 Medlicot v. O'Donel. 191 
 Meek v. Sprachn, 856 
 Meeks v. Bowennan, 352 
 Meeks v. Garner. 235, 729, S05 
 Melick v. Cross, 302, 492, 776 
 Mellen v. Boarman. 113, 12.">, 155 
 Mellon v. Webster, 39 
 Mellon's Appeal, 510, 512, 668 
 Melton v. Coffelt, 205 
 Melton v. Smitn, 487 
 Memmert v. McKeen, 257, 307, 308 
 Menard v. Massey, 543 
 Menifee v. Marye, 96, 99. 507 
 Merc. Trust Co* v. So. Park Res. Co., 
 
 96, 255. 271, 418, 422. 42.1 
 Merchants' Bank v. Harrison, 59 
 Merchants' Bank v. Thompson, 767, 
 
 805 
 
 Merges v. Ringler, 81, 789, 790, 822 
 Merriam v. Rauen, 132 
 Merrill v. Merrill. 204 
 Merrill v. Montgomery, 01 
 Merrill v. Suing, 356," 433 
 Merriman v. Xorman, 238, 839 
 Merritt v. Byers, 523 
 Merritt v. Gonley, 633 
 Merritt v. Harris, 545 
 Merritt v. Hunt, 155, 646, 846
 
 TABLE OF CASES. 
 
 Iv 
 
 [BEFEBE.VCE8 ABE TO PAGES.] 
 
 Merritt v. Morse, 422, 426 
 
 Merritt v. Yates, 72 
 
 Mervin v. Vanlier, 87, 118 
 
 Mervin v. Smith, 107 
 
 Meservy v. Snell, 422 
 
 Meshew v. Southworth, 804 
 
 Meaaer v. Oestrich, 200, 333, 409, 
 
 414 
 
 Mesick v. Sunderland, 170, 171 
 Metcalf v. Dallam, 813 
 M. E. Church v. Robinson, 770 
 M. E. Church Home v. Thompson, 
 
 718, 720 
 
 Methvin v. Bixley, 118, llf) 
 Mette v. Dow, 401, 415, 417 . 
 Meyer v. Boyd, 737, 764 
 Meyer v. Madreperla, 74G 
 Meyers v. Markhain, 481 
 Mhoon v. Wilkinson, 208 
 Michael v. Michael, 566 
 Michael v. Mills, 633 
 Michel v. Tinsley, 563, 568 
 Mickel v. Hicks, 116 
 Middlebury College v. Cheney, ,">02, 
 
 529, 538 
 Middlokauff v. Barick, 446, 6.'5S, 050, 
 
 861 
 
 Middlemore v. Goodale, 380 
 Middleton v. Findla, 46, 764 
 Middleton v. Selby, 816, 818 
 Middleton v. Thompson, 424, 420, 
 
 430 
 
 Midgott v. Brooks, 331, 332 
 Mid Great West. R. Co. v, Johnson, 
 
 874 
 
 Miesell v. Ins. Co., 727 
 Miles v. Furnace Co., 488 
 Milkman v. Ordway, 489 
 Miller v. Argyle, 461, 851 
 Miller v. Duncan, 122 
 Miller v. Avery, 366, 447, 451, 637, 
 
 838, 848 
 
 Miller v. Bayless, 341 
 Miller v. Bentley, 337 
 Miller v. Cramer, 738, 741 
 Miller v. Ewing, 332, 551 
 Miller v. Feezor, 87 
 Miller v. Finn, 118 
 Miller v. Fraley, 653 
 Miller v. Halsey, 405 
 Miller v. Lamar, 446 
 Miller v. Long, 445, 603, 638 
 Miller v. Macomb, 731, 768 
 Miller v. Miller, 839 
 Miller v. Owens, 604, 847 
 Miller v. Parsons, 440 
 Miller v. Rhuman, 568 
 Miller v. Watson, 676 
 Miller v. Weinstein, 716 
 Milligan v. Cooke, 831 
 Millinger v. Daly, 73 
 
 Million v. Riley, 121 
 
 Mills v. Abraham, 447 
 
 Mills v. Bell, 391, 399 
 
 Mills v. Catlin, 255, 299, 324, 326, 
 
 340 
 
 Mills v. Herndon, 117 
 Mills v. Lockwood, 569, 570 
 Mills v. Rice, 433 
 Mills v. Saunders, 446, 470 
 Mills v. Seminary, 572 
 Mills v. Traylor, 473 
 Mills v. Van Voorhis, 195 
 Milmoe v. Furnace Co., 501 
 Milot v. Reed, 281, 292 
 Milward v. Earl of Thanet, 811 
 Mincey v. Foster, 793 
 Miner v. Beekman, 138 
 Miner v. Clark, 429 
 Miner v. Hilton, 47, 790 
 Minor v. Edwards, 190 
 Minor v. Natchez, 127 
 Mischke v. Baughn, 401, 413 
 Missouri Schnelle Lumber Co. v. Bar- 
 low, 257 
 Miss. R. Logging Co. v. Whelihan, 
 
 331 
 Missouri K. & T. R. Co. v. Pratt, 
 
 587, 598 
 Missouri Val. Land Co. v. Bushnell, 
 
 769 
 
 Mitchell v. Allen, 798 
 Mitchell v. Barry, 506 
 Mitchell v. Christopher, 650 
 Mitchell v. De Roche, 618 
 Mitchell v. Dibble, 470 
 Mitchell v, Hazen, 155, 271, 399, 416 
 Mitchell v. Kintzer, 105 
 Mitchell v. Mitchell, 576 
 Mitchell v. McMullen, 111, 446, 838 
 Mitchell v. Pinckney, 78, 82', 87, 157, 
 
 189 
 
 Mitchell v. Petty,' 519 
 Mitchell v. Pillsbury, 292, 297, 326 
 Mitchell v. Sherman, 608 
 Mitchell v. Stanley, 322 
 Mitchell v. Stinemitz, 706, 710 
 Mitchell v. Vaughan, 356 
 Mitchell v. Warner, 263, 302, 334, 
 
 377 
 
 Mitchell v. Woodson, 483, 545 
 Mitchell v. Zimmerman, 683 
 Mitchener v. Holmes, 758, 764 
 Mix v. Beach, 485 
 Moak v. Bryant, 73, 74 
 Moak v. Johnson, 408, 409 
 Mobile Co. v. Kimball, 488 
 Mobley v. Keys, 35, 589, 603 
 Mock v. Chalstrom, 798 
 Moggridge v. Jones, 455, 462, 609 
 Mohr v. Maniere, 117 
 Mohr v. Parmelee, 303, 320, 323, 409
 
 Ivi 
 
 TABLE OF CASES. 
 
 [DEFERENCES ARE TO PAGES.] 
 
 Mohr v. Tulip, 117 
 
 Moliter v. Sheldon, 375 
 
 Molloy v. Egan. 812 
 
 Molloy v. Sterne, 28, 724 
 
 Monagan v. Small, 708, 767 
 
 Alonarque \v. Monarque, 757 
 
 Monell v. Colden, 661, 687 
 
 Monell v. Donglan, 289 
 
 Monroe v. Skelton, 566 
 
 Monson v. Stevens, 206, 611, 792 
 
 Monte v. Allegre, The, 118 
 
 Montgomery v. North Pac. R. Co., 
 
 404, 406 
 Montgomery v. Pac. L. Co. Bureau, 
 
 710, 7il 
 Montgomery v. Reed, 259, 271, 276, 
 
 279 
 
 Moody v. Leavitt, 422 
 Moody v. Spokane R. Co., 36 
 Mooney v. Burchard, 370 
 Moore v. Allen, 125, 140 
 Moore v. Appleby, 38, 708, 720, 759 
 Moore v. Baker, 519 
 Moore v. Buckham, 73 
 Moore v. Cooke, 608, 841 
 Moore v. Ellsworth, 463, 835 
 Moore v. Frankenfield, 401 
 Moore v. Hazelwood, 866 
 Moore v. Hill, 605 
 Moore v. Hunter, 174 
 Moore v. Johnston, 260, 337 
 Moore v. Lanham, 356 
 Moore v. MeKie, 402 
 Moore v. Merrill, 263, 387 
 Moore v. Munn, 559, 567 
 Moore v. Neil, 109 
 Moore v. Rake. 519, 529 
 Moore v. Taylor, 772 
 Moore v. Vance, 59 
 Moore v. Vail, 356, 360, 362, 367 
 
 368 
 
 Moore v. Vogel, 473" 
 Moore v. Weber, 353, 437 
 Moore v. Williams, 708, 718 720 
 
 728, 736, 781 
 Moore v. Wingate, 563 
 Moot v. Bus. M. Asso., 167, 726, 752 
 
 793 
 Morange v. Morris, 15, 36, 204, 794, 
 
 812 
 More v. Smedburgh, 184, 186, 616, 
 
 695, 792, 794 
 
 Moredock v. W T illiams, 608, 841 
 Morehouse v. Heath, 286 
 Moreland v. Atchinson, 239, 683, 859, 
 
 873, 875 
 
 Moreland v. Metz, 323, 391, 414 
 Morenhout v. Barron, 402 
 Morgan's Appeal, 116 
 Morgan v. Boone, 506 
 Morgan v. Bouse, 120 
 
 Morgan v. Brast, 827 
 
 Morgan v. Famed, 115 
 
 Morgan v. Giendy, 852 
 
 Morgan v. Han. & St. J. R, Co., 36.3, 
 
 367, 373 
 Morgan v. Morgan, 492, 692, 716, 
 
 721 
 
 Morgan v. Muldoon, 424 
 Morgan v. Ramsey, 129 
 Morgan v. Scott, 787, 798 
 Morgan v. Shaw, 818 
 Morgan v. Smith, 34, 73, 302, 308, 
 
 326, 469 
 
 Morgan v. Stearns, 73 
 Morley v. Cook, 25 
 Morris v. Balkham, 129 
 Morris v. Coleman, 804 
 Morris v. Gentry, 106 
 Morris v. Goodwin, 793 
 Morris v. Ham, 443 
 Morris v. Kearsley, 28 
 Morris v, McMullen, 738, 747, 847 
 Morris v. McNull, 797 
 Morris v. Mowatt, 88, 731 
 Morris v. Phelps, 260, 410, 412, 538 
 Morris v. Rowan, 415, 417, 422, 420 
 Morris v. Terrell, 173 
 Morris v. Whitcher, 452 
 Morrison v. Arnold, 715 
 Morrison v. Beckwith, 838, 841, 847 
 Morrison v. Brand, 788 
 Morrison v. Collier, 557, 567 
 Morrison v. Caldwell, 652 
 Morrison v. Faulkner, 74 
 Morrison v. Lods, 235 
 Morrison v. McArthur, 258 
 Morrison v. Morrison, 339 
 Morrison v. Underwood, 537 
 Morrison v. Waggy, 732 
 Morrison v. Whitesides, 545 
 Morrison v. Wilson, 332. 545 
 Morrow v. Rees, 622, 680 
 Morrow v. Wessell, 83 
 Morse v. Elmendorf, 487, 492, 864 
 Morse v. Royal, 187, 191 
 Morse v. Shattuck, 402 
 Mortlock v. Butler, 491, 495. 692 
 Morton v. Ridgeway, 414. 698, 702, 
 
 703 
 
 Morton v. Willborn, 137 
 Moseley v. Hunter, 281, 289. 318 
 Moser v. Cochran, 707. 710. 749, 772 
 Moses v. McFerlan, 122, 653 
 Moses v. Wallace, 492, 494 
 Moskowitz v. Homberger, 771 
 Moss v. Davidson, 477, 703, 798 
 Moss v. Hanson. 672. 805 
 Mott v. Ackerman, 815 
 Mott v. Mott. 738, 767, 826 
 Mott v. Palmer, 259 
 Moulton v. Chaffee, 20
 
 TABLE OF CASES. 
 
 Ivii 
 
 [REFERENCES ARK TO PAGES.] 
 
 Moulton v. Edmonds, 161 
 
 Mover v. Shoemaker, 034, 070 
 
 Mudd v. Green. 633 
 
 Muir v. Berkshire, 136, 137 
 
 Muir v. Craig, 140 
 
 Muller v. Palmer, 811 
 
 Mailings v. Trinder, 712 
 
 Mullin v. Atherton, 127 
 
 Mullin v. Boggs, 60 
 
 Mullins v. Aikin, 728, 762, 765 
 
 Mullins v. Bloomer, 613 
 
 Mullins v. Jones, 239, 605 
 
 Mullins v. Porter, 755 
 
 Mullreed v. Clark, 865 
 
 Mumford v. Pearce, 506, 756, 758 
 
 Munday v. Vail, 94, 97 
 
 Munro v. Long, 476, 477 
 
 Munroe v. Pritchett, 235, 251, 252, 
 
 253 
 
 Murdock v. Gilchrist, 452 
 Murphin v. Scoville, 20, 35 
 Murphree v. Dogan, 507 
 Murphy v. Jones, 444 
 Murphy v. Lockwood, 143, 145 
 Murphy v. Price. 157, 360 
 Murphy v. Richardson, 598, 668, 671 
 Murray v. Ellis, 668, 710, 718, 735 
 Murray v. Hanvay, 718, 720, 728, 
 
 731 
 
 Murray v. Palmer, 701 
 Murray v. Sells, 565 
 Murrell v. Goodyear, 506, 798 
 Muskingum Val. T'pike v. Ward, 45 
 Myers v. De Meier, 800. 802 
 Mvers v. Broadbeck, 323 
 Myers v. Markham, 47 
 Mygatt v. Coe, 262, 311, 38S 
 
 N. 
 
 Nabours v, Cocke, 859 
 
 Naglee v. Ingersoll, 434 
 
 Napier v. Elam, 244, 245 
 
 Nash v. Ash ton, 440 
 
 Nash v. Palmer, 351, 353 
 
 Nash v. Spofford, 542 
 
 Nathan v. Morris, 776 
 
 Nathans v. Steinmayer, 460 
 
 Nat. Fire Ins. Co. v. McKay, 455 
 
 Naylor v. Winch, 869, 871 
 
 Nebe, In re, 70 
 
 Needham v. Salt Lake City. 116 
 
 Neel v. Carson, 137 
 
 Neel v. Hughes, 49 
 
 Neel v. Prickett, 602, 604 
 
 Neeson v. Bray, 341 
 
 Negley v. Lindsay, 194, 614 
 
 Neher v. Brunckman, 789 
 
 Nelms v. Prewitt, 455, 836 
 
 Nelson v. Jacobs, 738 
 
 Nelson v. Hamilton Co., 683 
 
 Nelson v. Matthews, 20, 399 
 
 Nelson v. Harwood, 514 
 
 Nelson v. Owen, 842 
 
 Nelson v. Russell, 767 
 
 Nelthorp v. Howgate, 500 
 
 Nerhooth v. Althotise, 553 
 
 Nesbit v. Brown, 387, 394 
 
 Nesbit v. Campbell, 469 
 
 Nesbit v. Nesbit, 387 
 
 Nesbit v. Miller, 203 
 
 Newark Sav. Inst. v. Jones, 20, 21, 
 
 146, 196 
 
 New Barb. Bridge Co. v. Vreeland, 20 
 Newberry v. French, 36, 626, 731 
 Newberry v. Ruftin, 4 
 Newbold v. Peabody Heights, 196, 
 
 308. 452 
 New Brunswick R. Co. v. Conybeare. 
 
 236 
 
 Newcomb v. Bracket, 15 
 Newcomb v. Presbrey, 332 
 Newcomber v. Brooks, 107 
 Newell v. Turner, 193 
 Newman v. Samuels, 64 
 Newnan v. Maclin. 625, 759, 827 
 Newsom v. Davis, 764 
 Newsom v. Graham, 464 
 Newsom v. Harris, 214 
 Newsom v. Thompson, 45 
 Newton v. Foster. 456 
 N. Y. Life Ins. Co. v. Gilhooly. 728 
 N. Y. Life Ins. Co. v. Lord, 787 
 N. Y. Sec. & Tr. Co. v. Schomberj;, 
 
 759 
 
 N. Y. Steam Co. v. Stern, 742 
 Neyland v. Neyland. 473 
 Nichol v. Nichol, 199 
 Nicholas v. Jones, 156 
 Nichols v. Alexander, 535 
 Nichols v. Corbett, 29 
 Nichols v. Dissler, 130 
 Nichols v. Freeman, 215 
 Nichols v. Walters, 271, 272, 307 
 Nicholson v. Caress, 560. 563 
 Nicholson v. Condon, 715 
 Nicholson v. Sherard, 508 
 Nicholson v. Wadsworth, 483, 615, 
 
 694 
 
 Nickles v. Hastings, 121 
 Nicol v. Nicol, 244 
 Nicoll v. Carr, 622, 695, 707, 7^0 r 
 
 783 
 
 Nicoll v. Mason, 568 
 Nieto v. Carpenter, 543 
 Niles v. Harmon, 648 
 Nind v. Marshall, 339 
 Nixon v. Carco, 550 
 Nixon v. Hyserott, 155 
 Nodine v. Greenfield. 750. S04 
 Noell v. Gill. 557 
 Noke v. Awder, 386, 388 
 Nokes v. Lord Kilmorey, 813
 
 Iviii 
 
 TABLE OF CASES. 
 
 [REFERENCES ABE TO PAGES.] 
 
 Nolan v. Felton, 404 
 
 Noojin v. Carson, 626 
 
 Noonan v. Illsley, 535, 538, 634 
 
 Noonan v. Lee, 361, 443, 637, 649 
 
 Norgren v. Edson, 130 
 
 Norman v. Norman, 121 865, 867 
 
 Norris v. Evans, 472 
 
 Norris v. Kipp, 237, 434, 435 
 
 N. Pac. R. Co. v. Montgomery, 356, 
 
 357, 417 
 
 North ridge v. Moore, 220, 224 
 Norton v. Babcook, 291, 321, 405 
 Norton v. Colgrove, 315 
 Norton v. Herron, 156 
 Norton v. Jackson, 443, 471 
 Norton v. Marten, 873 
 Norton v. Neb. L. & Tr. Co., 86, 87 
 Norton v. Young, 697 
 Nosier v. Hunt, 273, 445 
 Nott v. Ricard, 29 
 Nouaille v. Flight, 30, 724, 825 
 Nowler v. Coit, 138 
 Nowlin v. Pyne, 561, 563 
 Noyes v. Johnson, 24, 740, 741 
 Noyes v. Phillips, 231 
 Nugent v. Priebatsch, 574 
 Nungesser v. Hart, 295 
 Nunnally v. White, 377, 521 
 Nutting v. Herbert, 271, 391, 402, 
 
 403 
 Nyce v. Obertz, 300, 321 
 
 0. 
 
 Cakes v. Buckley, 17, 207 
 
 Oakey v. Drummond, 446 
 
 O'Bannon v. Paremour, 519 
 
 O'Beirne v. Buller, 488 
 
 Obernyce v. Obertz, 831 
 
 Oberthier v. Stroud, 119, 120 
 
 O'Connell v. Duke, 337, 866 
 
 O'Connor v. Hudgins, 739, 744 
 
 O'Ferrall v. Simplot, 72 
 
 Officer v. Murphy, 695, 697, 700 
 
 Ogburn v. Whitlow, 474 
 
 Ogden v. Ball, 273. 274, 363, 412 
 
 Ogden v. Yoder, 853 
 
 Ogilvie v. Hall, 353 
 
 Ohio & Miss. R. Co. \. McCarthy, 
 
 694 
 Ohling v. Luitjens, 630, 638, 678, 
 
 855 
 
 O'Kane v. Kiser, 774 
 O'Kelly v. GhoLston, 137 
 Oldfield v. Stevonson. 444, 459, 844 
 Oliver v. Bush. 334, 356 
 Oliver v. Dix, 807 
 Oliver v. Hallam, 819 
 Oliver v. Love, 270 
 Oliver Min. Co. v. Clark, 653 
 Oliver v. Piatt, 653 
 O'Meara v. McDaniel, 273 
 
 Omerod v. Hardman, 817 
 
 O'Neill v. Douthett, 598, 788 
 
 O'Neill v. Vanderberg, 542 
 
 O'Neill v. Van Tassell, 303, 779 
 
 Onions v. Tyrer, 871 
 
 Ontario Bank v. Lansing, 121. 123 
 
 O'Reilly v. King, 709, 718, 724, 757 
 
 Orendorff v. Tallman, 687, 857 
 
 Ormsby v. Terry, 79, 81 
 
 Orme v. Boughton, 14, 258 
 
 Ormsby v. Graham, 480. 482 
 
 Osbaldiston v. Askew, 730, 732, 733 
 
 Osborn v. Dodd, 615, 695 
 
 Osborne v. Atkins, 311, 313 
 
 Osborne v. Breman, 820, 826 
 
 Osborne v. Harvey, 28 
 
 Osborne v. McMillan, 157 
 
 Osborne v. Nicholson, 354 
 
 Osborne v. Rowlett, 714, 722 
 
 Osburn v. Pritchard, 335, 356 
 
 Osgood v. Franklin, 692 
 
 Osterbury v. Union Trust Co., 142 
 
 Osterhout v. Shoemaker, 552 
 
 Osterman v. Baldwin, 120 
 
 Oswald v. Sproehlne, 564 
 
 Ott v. Sprague, 545 
 
 Ottinger v. Strasburger, - 738. 739, 
 
 740, 742 
 
 Outlaw v. Morris, 698 
 Overhiser v. McCollister, 271, 642 
 Overly v. Tipton, 205 
 Overstreet v. Dobson, 295 
 Owen v. Brookport, 519 
 Owen v. Norris, 206 
 Owen v. Pomona L. W. Co., 193 
 Owen v. Thomas, 356, 363, 436 
 Owens v. Cowan, 798 
 Owens v. Rector, 235, 633 
 Owens v. Salter, 469, 509 
 Owings v. Baldwin, 731, 732 
 Owings v. Thompson, 20 
 
 P. 
 
 Pack v. Gaither, 480 
 
 Packard v. Usher, 167 
 
 Page v. Adam, 31 
 
 Page v. Brown, 153 
 
 Page v. Greeloy, 24, 191, 724. 741 
 
 Page v. Lashley, 299 
 
 Paget v. Melch'ior. 760, 767, 787 
 
 Paine v. Miller, 161 
 
 Painter v. Henderson, 172 
 
 Palmer v. Chandler, 406 
 
 Palmer v, Locke, 714 
 
 Palmer v. Morrison, 769 
 
 Palmer v. Richardson, 185, 189, 817 
 
 Palmerton v. Hoop, 117 
 
 Pangborn v. Miles, 598, 774, 786, 787 
 
 Papin v. Goodrich, 41, 164 
 
 Parham v. Parham, 558
 
 TABLE OF CASES. 
 
 [REFERENCES ABE TO PAGES.] 
 
 lix 
 
 Parham v. Randolph, 235, 246, 251, 
 
 827, 855 
 
 Paris!) v. Whitney, 301 
 Park v. Bates, 360, 366, 398, 428 
 Park v. Johnson, 693, 704, 732, 780 
 Parker v. Baker, 59 
 Parker v. Brown, 255, 256, 271 
 Parker v. Chadwick, 396 
 Parker v. Culbertson, 444 
 Parker v. Dunn, 364 
 Parker v. Goddard, 132 
 Parker v. Hart, 458 
 Parker v. Jones, 519 
 Parker v. Kane, 99 
 Parker v. McAllister, 34, 206, 
 Parker v. Parker, 281, 854 
 Parker v. Parmele, 33 
 Parker v. Porter, 725, 762 
 Parker v. Richardson, 350, 438 
 Parker v. Starr, 571 
 Parker v. Teas, 575 
 Parkins v. Williams, 847 
 Parkinson v. Sherman, 458, 462, 469, 
 
 637 
 Parks v. Brooks, 625, 690, 692, 696, 
 
 777, 789, 843 
 Parks v. Jackson, 732 
 Parlin v. Stone, 563 
 Parmly v. Head, 707, 710 
 Parr v. Lovegrove, 737 
 Parsons v. Gilbert, 801 
 Parsons v. Smith, 587 
 Partridge v. Hatch, 409 
 Partridge v. Patton, 550 
 Paslay v. Martin, 817 
 Pate v. Mitchell, 34, 261, 509 
 Pate v. McConnell, 794 
 Paterson v. Long, 30, 831 
 Paton v. Brebner, 495, 825, 830 
 Pa ton v. Rogers, 491 
 Patrick v. Leach, 392 
 Patrick v. Roach, 698, 702 
 Patten v. Fitz, 306 
 Patten v. Stewart, 194, 243, 650, 695 
 Patterson v. Arthur, 307, 309, 354 
 Patterson v. Carneal, 50 
 Patterson v. Dwinel, 552 
 Patterson v. Fisher, 553 
 Patterson v. Goodrich, 36 
 Patterson v. Long, 30, 831 
 Patterson v. Pease, 528 
 Patterson v. Stewart, 415 
 Patterson v. Sweet, 302 
 Patterson v. Taylor, 639 
 Patterson v. Yancey, 293, 327 
 Patton v. Camplin, 477 
 Patton v. England, 195, 462, 685 
 Patton v. Kennedy, 353, 430, 435 
 Patton v. McFarlane, 356, 364 
 Patton v. Schneider, 338 
 Patton v. Taylor, 443, 839, 857 
 
 Patton v. Thompson, 106 
 
 Paul v. Kenosha, 860 
 
 Paul v. Witman, 365, 379, 429 
 
 Payne v. Atterbury, 625 
 
 Payne v. Cabell, 645 
 
 Payne v. Echols, 150 
 
 Payne v. Markle, 741 
 
 Paxson v. Lefferts, 329 
 
 1'axton v. Sterne, 137 
 
 Peabody v. Brown, 45 
 
 Peabody v. Phelps, 661, 686, 687 
 
 Peak v. Gore, 784, 797 
 
 Pearsoll v. Chapin, 234, 622, 680, 683 
 
 Pearsoll v. Frazer, 208 
 
 Pearson v. Ford, 311, 318 
 
 Pearson v. Davis, 271 
 
 Pearson v. Seay, 589 
 
 Pease v. Christ, 298, 299 
 
 Feay v. Capps, 615, 715 
 
 Peay v. Wright, 686 
 
 Peck v. Hensley, 364 
 
 Peck v. Houghtaling, 275, 277, 432, 
 
 435 
 
 Peck v. Jones, 669 
 Peckham v. Stewart, 763 
 Peden v. Moore, 443, 463 
 Peebles v. Stephens, 616, 695, 699, 
 
 702, 855 
 
 Peeler v. Levy, 499, 500 
 Peers v. Barnett, 460, 606, 742, 852 
 Peers v. Lambert, 827 
 Peet v. Beers, 512 
 Pegler v. White, 711, 712 
 Pell v. Pell, 765 
 Pelletreau v. Jackson, 544 
 Pena v. Armstrong, 575 
 Pence v. Duval, 263, 353, 391, 434 
 Pence v. Gabbert, 357, 385, 415 
 Pendleton v. Button, 72 
 Penfield v. Clarke, 36 
 Penn v. Preston, 668 
 Pennington v. Clifton, 140 
 Pennsylvania v. Sims, 668 
 Penna. Min. Co. v. Thomas, 165 
 People v. Gilon, 295, 298 
 People v. Globe Ins. Co., 716 
 People v. Life Ins. Co., 767 
 People v. Open Board, etc., 716, 801, 
 
 810 
 
 People v. Sisson, 444 
 People v. Society, 543 
 People v. Stock Brokers' Building 
 
 Co., 722 
 
 People's Sav. Bank v. Alexander, 305 
 Peo. Sav. Bank v. Lewis, 525 
 Poo. Sav. Bank v. Parisette, 497, 498 
 Pepper v. Rowley, 444 
 Poqups v. Mosby, 589, 611 
 Poniful v. Hurd, 638 
 Perkins v. Bamford, 446 
 Perkins v. Dickinson, 558
 
 Ix 
 
 TABLE OF CASES. 
 
 [REFERENCES ARE TO PAGES.] 
 
 Perkins v. Ede, 827 
 
 Perkins v. Fairfield, 92 
 
 Perkins v. Hadley, 215, 379, 502, 625, 
 
 702 
 
 Perkins v. White, 78 
 Perkins v. Williams, 453 
 Perrot v. Perrot, 871 
 Perry v. Adams, 138 
 Perry v. Boyd, 695, 856 
 Perry v. William, 141 
 Perry v. Williamson, 301 
 Fershing v. Canfield, 205, 619 
 Personneau v. Blakely, 560 
 Peterman v. Laws, 132 
 Peters v. Anderson, 511 
 Peters v. Bouvien, 268, 458 
 Peters v. Delaplaine, 831 
 Peters v. Farnsworth, 155 
 Peters v. Grubbs, 339, 354, 376 
 Peters v. McKeon, 213, 216, 223, 224, 
 
 391 
 
 Peters v. Meyers, 294, 297 
 Peterson v. McCulloch, 445 
 Petrie v. Folz, 370, 371, 402 
 Pettys v. Marsh, 589 
 Pfirrman v. Wattles, 134, 446 
 Phelps v. Decker, 339 fc 
 Phelps v. Kellogg, 531 
 Phelps v. Phelps, 52 
 Phelps v. Sawyer, 361 
 Phillbrook v. Emswiler, 657 
 Phillips v. Coffee, 127 
 Phillips v. Cooper, 424 
 Phillips v. Day, 743, 749 
 Phillips v. Evans, 354 
 Phillips v. Herndon, 36, 148, 212 
 Phillips v. O'Neal, 624 
 Phillips v. People, 59 
 Phillips v. Reichert, 392, 397, 410 
 Phillips v. Ruble, 61 
 Phillips v. Scott, 673 
 Phillips v. Smith, 394, 401 
 Phillips v. Stanch, 497 
 Phillips v. W T alsh, 75, 76 
 Phillipson v. Gibbon, 819 
 Phipp v. Childs, 724 
 Pickitt v. Loggon, 147 
 Piedmont Coal Co. v. Green, 606 
 Pierce v. Johnston, 263 
 Pierce v. Milwaukee R. Co., 440, 517, 
 
 540 
 
 Pierce v. Nicol, 798, 821 
 Pierson v. Armstrong, 50 
 Pierson v. Doe, 50 
 Pike v. Galvin, 263, 550 
 Pike v. Goodnow, 526 
 Piland v. Taylor, 58 
 Pilcher v. Prewitt, 648, 650 
 Pilcher v. Smith, 625 
 Pillsbury v. Mitchell, 263, 311, 318, 
 
 322, 326 
 
 Pincke v, Curtis, 193 
 
 Pinkston v. Hine, 229, 274 
 
 Pino v. Beckwith, 587, 621 
 
 Pintard v. Martin, 649 
 
 Piper v. Elwood, 141 
 
 Pipkin v. James, 587, 807, 814 
 
 Pitcher v. Livingston, 150, 270, 271, 
 
 360 
 Pitkin v. Leavitt, 360, 421, 428, 431, 
 
 434 
 
 Pitman v. Connor, 284, 335 
 Planer v. Eq. Life Ins. Co., 501, 502 
 Platt v. Gilchrist, 449, 458, 637, 848 
 Platt v. Newman, 773 
 Platte Land Co. v. Hubbard, 588 
 Playter v. Cunningham, 351, 361 
 Plowman v. Shidler, 525 
 Plummer v. Rigdon, 214 
 Plummer v. Russell, 48 
 Point Street Iron Works v. Simmons, 
 
 151 
 
 Poke v. Kelly, 589, 667 
 Polk v. Stevenson, 167 
 Polk v. Sumter, 49, 778 
 Pollard v. Dwight, 256, 258, 259 
 Pollard v. Rogers, 194 
 Pollock v. Speidel, 519 
 Pollock v. Wilson, 704 
 Pomeroy v. Burnett, 315, 444, 469 
 Pomeroy v. Drury, 20, 36 
 Pomeroy v. Fullerton, 487 
 Pomeroy v. Partington, 417 
 Pool v. Ellis, 138, 139 
 Poole v. Hill, 200 
 Poole v. Shergold, 826 
 Pope v. Garland, 21, 30 
 Pope v. Simpson, 134 
 Pope v. Thrall, 727, 740, 791 
 Pope v. Wray, 613 
 Poor v. Boyce, 114, 117 
 Porter v. Bradley, 298, 323 
 Porter v. Cook, 652 
 Porter v. Hill, 538 
 
 Porter v. Noyes, 33, 35, 300, 362, 777 
 Porter v. Scobie, 608 
 Porter v. isullivan, 552 
 Porter v. Titcomb, 696 
 Porterfield v. Payne, 720 
 Portman v. Mill, 819 
 Post v. Bernheimer, 783 
 Post v. Campau, 298 
 Post v. Leet, 82, 121, 858 
 Post v. Weil, 776, 777 
 Potter v. Kitchers, 279 
 Potter v. Parry, 711 
 Potter v. Taylor, 287 
 Potter v. Tuttle, 151 
 Potwin v. Blasher, 370, 418, 459 
 Poulet v. Hood, 154 
 Poulson v. Ellis, 201 
 Pounsett v. Fuller, 212
 
 TABLE OF CASES. 
 [INFERENCES AKE TO PAGES.] 
 
 Ixi 
 
 Powell v. Conant, 724 
 
 Powell v. Edmonds, 32 
 
 Powell v. Lyles, 337 
 
 Powell v. Matyr, 820, 821 
 
 Powell v. Morrissey, 575 
 
 Powell v. Munson, 300 
 
 Powell v. Powell, 733 
 
 Powell v. So. Wales R. Co., 830 
 
 Power v. Standish, 516 
 
 Powers v. Bryant, 69 
 
 Poyas v. Wilkins, 476 
 
 Poyntell v. Spencer, 364, 3G5, 667, 
 
 673 
 
 Pratt v. Campbell, 488, 822 
 Pratt v. Eby. 712, 739, 742 
 Pratt v. Pratt, 539, 540 
 Preiss v. Le Poidevin, 331, 383 
 Preissinger v. Sharp, 716 
 Presbrey v. Kline, 484. 726, 798, 803, 
 
 804 
 
 Prescott v. Hayes, 60 
 Prescott v. Hobbes, 267 
 Prescott v. Trueman, 257, 21)0, 315, 
 
 318, 322, 775, 831 
 Prescott v. Williams, 302 
 Presser v. Hildebrand, 497 
 Preston v. Breedlove, 472 
 Pfeston v. Fryer, 81, 84, 87 
 Preston v. Harrison, 140 
 Veston v. Walker, 603, 615 
 Veston v. Whitcomb, 36 
 'reston v. Williams, 574 
 'restwood v. McGovern, 360, 363, 434 
 >evost v. Gratz, 443, 639 
 'rewitt v. Graves, 723, 765 
 'rewitt v. Kenton, 424 
 Price v. Ayres. 845, 852 
 Price v. BJount, 472, 473 
 Price v. Boyd, 140 
 Price v. Browning, 185 ; 607 
 Price v. Hubbard, 447 
 Price v. Johnson, 257 
 Price v. Real Estate Assn., 117 
 Price v. Strange, 711 
 Primm v. Wise, 808 
 Pringle v. Spaulding, 211 
 Prinple v. Witton. 277, 356 
 Prior v. Loeb, 541 
 Pritchard v. Atkinson, 306 
 Pritcharcl v. bmith, 370 
 Pritchett v. Redick, 357, 370, 37S 
 Prosser v. Watts, 715, 737 
 Prothro v. Smith, 813 
 Prov. Life N. Co. v. Seide, 263 
 Prov. Loan & Tr. Co. v. Mclntoh. 686 
 Prout v. Gibson. 606 
 Prout v. Roberts, 244, 687, 855 
 Pry v. Pry, 51 
 
 Pryse v. McGuire. 242, 245, 252, 445 
 Puckett v. McDonald, 115, 589, 650 
 Pugh v. Brittain, 571 
 
 Pugh v. Chasseldine, 35, 148 
 
 Pugh v. Mayo, 525 
 
 Pumpelly v. Phelps, 217, 225, 227,228 
 
 Purcell v. Heeney, 447 
 
 Purvis v. Rayer, 20, 22, 710 
 
 Pusey v. Desbourne, 871 
 
 Puterbaugh v. Puterbaugh, 20, 213, 
 
 227, 228 
 
 Putnam v. Ritchie, 139 
 Putnam v. Westcott, 587 
 Pyle v. Gross, 345 
 Pyrke v. Wadding!) am, 708, 712, 714, 
 
 721, 722 
 
 Q. 
 
 Quarles v. Campbell, 115 
 Quick v. Taylor, 308 
 Quimby v. Lyon, 205 
 Quivey v. Baker, 519, 545, 547 
 
 Rebon v. Risnikoff. 597 
 
 Radcliff v. Ship, 363, 431 
 
 Rader v. Neal, 104, 152 
 
 Radford v. Willis, 713, 714 
 
 Raftery v. Easeley, 300 
 
 Ragan v. G^ither, 731 
 
 Raines v. Callaway, 433 
 
 Raines v. Walker. 519 
 
 Rainey v. Hines, 317 
 
 Ralston v. Miller, 461, 849 
 
 Ramirez v. Barton. 855 
 
 Ramsden v. Hurst, 30 
 
 Ramsey v. Smith, 564 
 
 Ramsour v. Shuler, 506, 564 
 
 Randall v. Albertis, 353 
 
 Randall v. Lower, 525, 526 
 
 Randall v. Mallett, 315 
 
 Randolph v. Kiriney, 263, 387 
 
 Randolph v. Meeks, 358, 360 
 
 Ranelagh v. Hayes, 516 
 
 Rankin v. Maxwell, 492 
 
 Ranney v. Smith, 564 
 
 Ranson v. Shuler, 835 
 
 Rantin v. Robertson, 351 
 
 Rash v. Jenne, 396 
 
 Rashall v. Ford, 250 
 
 Rathbun v. Rathbun, 522 
 
 Raudabaugh v. Hart. 200 
 
 Ravenel v. Ingram. 378, 381 
 
 Rawley v. Beaman. 69 
 
 Rawlings v. Adams, 213 
 
 Rawlins v. Timl>erlake, 445, 838, 847 
 
 Ray v. Detchon, 137 
 
 Ray v. Pease, 50 
 
 Ray v. Virgin, 113 
 
 Raymes v. Clarkson, 44 
 
 Raymond v. Holdon. 542 
 
 Raymond v. Raymond, 256, 283 
 
 Raymond v. Squire, 264 
 
 Raynor v. Lyon, 777
 
 TABLE OF CASES, 
 
 [REFERENCES ARE TO PAGES.] 
 
 Rea v. Minkler, 335, 360, 375, 436 
 
 Read v. Fogg, 547, 550 
 
 Read v. Walker, 203, 625, 696, 855 
 
 Reading v. Gray, 315 
 
 Reagle v. Dennis, 284, 288 
 
 Real T. Hollister, 363 
 
 Real Est. Corp. v. Harper, 296 
 
 Ream v. Goslee, 299 
 
 Reardon v. Searcy, 127 
 
 Reasoner v. Edmundson. 260, 315, 
 
 363, 371 
 
 Reck v. Clapp, 182 
 Recohs v. Younglove, 255, 412 
 Rector T. Higgins. 315 
 Rector v. Price, 826 
 Redding v. Lamb, 347, 465 
 Reddington v. Henry, 595 
 Redman v. Williams, 598 
 Redmon v. Phenix Ins. Co., 292 
 Redwine v. Brown, 263, 350, 381, 383 
 Recce v. Haymaker, 759 
 Reed v. Crosthwaite, 140 
 Reed v. Hatch, 338 
 Reed v. Noe, 731, 826, 827 
 Reed v. Pierce, 318 
 Reed v. Reed, 758 
 Reed v. Root, 561 % 
 
 Reed v. Sycks, 452 
 Reed v. Tioga Mfg. Co., 45 ? 834 
 Reeder v. Craig, 519 
 Reese v. Gordon, 463, 649 
 Reese v. Kirk, 13 
 Reese v. McQuilkin, 392, 433 
 Reese v. Smith. 517, 537 
 Reeves v. Dickey, 607, 609, 800. 806 
 Reeves v. Downs, 616 
 Refeld v. Woolfolk, 651 
 Regney v. Coles, 727, 755 
 Regney v. Small, 131 
 Reid v. Sycks, 287 
 Reilly v. Burton, 137 
 Reilly v. Smith, 497 
 Reiner's Appeal, 112 
 Remillard v. Prescott, 564. 568 
 Remington v. Hornby, 148 
 Remington v. Palmer, 451, 453 
 Remy v. Olds, 205 
 Reniek v. Renick, 849 
 Renner v. Marshall, 845 
 Renshaw v. Gans, 506, 512. 667 
 Resser v. Carney, 526 
 Reswick v. Campbell, 810 
 Reuter v. Lane, 676 
 Revol v. Stroudback, 738, 771 
 Rex v. Creel, 346, 360 
 Rex v. Holland, 599 
 Reydell v. Reydell, 733 
 Reynolds v. Borel, 729 
 Reynolds v. Clark, 497 
 Reynolds v. Cleary, 730 
 Reynolds v. Harris, 127 
 
 Keynolds v. Nelson, 578 
 Reynolds v. Smith, 809 
 Reynolds v. Strong, 706, 718, 760, 
 
 810 
 
 Reynolds v. Vance, 827 
 Rhea v. Allison, 702 
 Rhea v. Swain, 416 
 Rheel v. Hicks, 122 
 Rhoads v. Selin, 105 
 Rhode v. Alley, 151, 474, 664, 683 
 Rhode v. Green, 430, 435 
 Rhodes v. Caswell, 716 
 Rhodes v. Ibbetson. 27 
 Rhodes v. Wilson, 589 
 Rhorer v. Bila, 615, 616 
 Rice v. Barrett, 768 
 Rice v. Burnett, 109, 113. 118 
 Rice v. Goddard, 446, 461 
 Rice v. Kelso, 525 
 Rice v. Poynton. 571 
 Rice v. Silverton, 855 
 Rich v. Johnson, 414 
 Richards v. Bent, 263, 292, 312 
 Richards v. Homestead Co., 370, 374, 
 
 404, 405 
 Richards v. Knight, 712. 714, 736, 
 
 768 
 
 Richards v. Mercer, 780 
 Richardson v. Bright, 242. 243, 246 
 Richardson v. Butler, 117 
 Richardson v. Dorr, 255. 315 
 Richardson v. Eyton, 30 
 Richardson v. Gosser, 66n. 67 3 
 Richardson v. Jones. 715 
 Richardson v. McDougall. 124. 141 
 Richardson v. McKinson. G!9, 701, 
 
 702 
 
 Richardson v. Tobey, 303 
 Richardson v. Williams, 8:>9 
 Richmond v. Ames, 301, 318, 322 
 Richmond v. Gray, 189, 748, 799,805 
 Richmond v. Koenig, 781 
 Richmond v. Marston, 1"0 
 Richmond v. Robinson, 496 
 Richmond v. Voorhees, Cl 
 Ricker v. Pratt, 836, 843 
 Rickert v. Snyder, 277, 323. 352. 362, 
 
 422, 433* 
 
 Ricketts v. Dickens, 330. 337, 360 
 Riddell v. Blake, 703 
 Riddle v. Bush, 128 
 Riddle v. Hill, 113 
 Riddleberger v. Mintzer. 497 
 Rider v. Powell, 566 
 Ridgeley v. Howard, 58 
 Ridgway v. Gray, 830, 831 
 Riesz's Appeal, 497 
 Rife v. Lybarger, 780, 785. 830 
 Rigg v. Cook. 529 
 Bugs v. Purse!!, 79, 81, 590, 708 
 Riley v. Kepler, 111 .
 
 TABLE OF CASES. 
 
 [REFERENCES ARE TO PAGES.] 
 
 Ixiii 
 
 Riley v. Million, 121 
 
 Rimer v. Dugan, 243, 251, 855 
 
 Rinaldo v. Houseman, 598 
 
 Rineer v. Collins, 211, 214 
 
 Rindskopf v. Trust Co., 361 
 
 Rinehart v. Rinehart, 318 
 
 Ripley v. Kepler, 109 
 
 Rippingall v. Loyd, 31 
 
 Ritter v. Henshaw, 123, 140 
 
 Ritter v. Phillips, 469 
 
 Roach v. Rutherford, 189, 192, 603 
 
 Roake v. Kidd, 709 
 
 Robards v. Cooper, 443 
 
 Robb v. Irwin, 95 
 
 Robb v. Montgomery, 35, 47; 611,804 
 
 Robbins v. Battlehouse Co., 556 
 
 Robbins v. Mayer, 560 
 
 Roberts v. Bassett, 35, 36 
 
 Roberts v. Levy, 262, 268, 296, 301, 
 
 308 
 
 Roberts v. Lovejoy, 492 
 Roberts v. McFadden, 17, 392, 719 
 Roberts v. Stowers, 95, 128 
 Roberts v. Taliaferro, 559 
 Roberts v. Wolbright, 444, 6:57 
 Roberts v. Wyatt, 31, 165, 4S2, 503 
 Robertson v. Bradford, 115, 138 
 Robertson v. Gaines, 519 
 Robertson v. Hogsheads, 605. 681 
 Robertson v. Lemon, 391, 417, 421 
 Robinson v. Bierce, 319 
 Robinson v. Brakewell, 221, 6GO 
 Robinson v. Douthit, 519 
 Robinson v. Galbreath, 858 
 Robinson v. Hardman, 229 
 Robinson v. Heard, 214 
 Robinson v. Maudlin, 61. 
 Robinson v. Murphy, 297 
 Robinson v. Page, 581 
 Robinson v. Redman, 93 
 Robinson v. Ryan, 137, 138 
 Hobison v. Robison, 641 
 Roche v. O'Brien, 187 
 Rockfellcr v. Donelly, 282 
 Rocksell v. Allen, 123 
 Rockwell v. Wells, 460 
 Rodgers v. Olshoffsky, 620, 667, 684 
 Rodman v. Williams, 598 
 Roebuck v. Dupuy, 364, 370 
 Roehl v. Haumesser, 864 
 Roehl v. Pleasants, 112, 113 
 Rogers v. Abbott, 570 
 Rogers v. Borchard, 36 
 Rogers v. Clemmans, 116 
 Rogers v. Colt, 682 
 Rogers v. Daily, 406 
 Rogers v. Golson, 401 
 Rogers v. Horn, 86, 475 
 Rogers v. Norton, 684 
 Rogers v. Place, 458, 844 
 Rogers v. Waterhouse, 712 
 
 Rohr v. Kindt, 36, 219. 492, 503 
 
 Roland v. Miller, 667, 668 
 
 Rolfes v. Russell, 253 
 
 Roller v. Ettinger, 182, 506, 798 
 
 Rollins v. Henry, 120 
 
 Rolph v. Crouch, 408 
 
 Romig v. Romig, 35 
 
 uomilly v. James, 717, 718 
 
 Rook v. Rook, 403 
 
 Rooney v. Koenig, 523 
 
 Roots v. Dormer, 826 
 
 Rose v. Calland, 782 
 
 Rose v. Neuman, 60 
 
 Rose v. Schaffner, 385 
 
 Roseman v. Conovan, 238 
 
 Rosenberger v. Keller, 324, 851 
 
 Rosenthal v. Griffin, 63 
 
 Ross v. Boards, 495, 831 
 
 Ross v. Davis, 335, 626 
 
 Ross v. Dysart, 343, 354 
 
 Ross's Appeal, 670 
 
 Roswall v. Vaughan, 649, 686 
 
 Roszell v. Roszell, 566, 573 
 
 Rotan v. Hays, 281 
 
 Rounds v. Baxter, 589, 613 
 
 Roussel v. Lux, 776 
 
 Rowland v. Dowe, 211 
 
 Rowe v. Heath, 339, 422 
 
 Rowe v. School Board, 213 
 
 Royal v. Dennison, 47, 73 
 
 Royce v. Burrell, 346 
 
 Royer v. Foster, 370, 372 
 
 Rucker v. Lowther. 148, 155 
 
 Rudd v. Savelli, 148 
 
 Ruess v. Ewen, 740 
 
 Ruff v. Gerhart, 737 
 
 Rufncr v. McConnell, 280 
 
 Ruffner v. McLenan, 67 
 
 Ruggles v. Barton, 539 
 
 Rundell v. Lakey, 296 467 
 
 Runge v. Sabin, 65 
 
 Runkle v. Johnson, 206 
 
 Runnels v. Webber, 300 
 
 Runyan v. Alersereau, 260 
 
 Ruppert v. Haske, 573 
 
 Rush v. Truby, 43 
 
 Russ v. Alpaugh, 522, 531 
 
 Russ v. Perry, 300, 346 
 
 Russ v. Steele, 375 
 
 Russ v. Wingate, 58, 69 
 
 Russell v. Copeland, 214 
 
 Russell v. Handy, 197 
 
 Russell v. Hudson, 132 
 
 Russell v. Shively, 796 
 
 Rutherford v. Haven, 207 
 
 Rutherford v. Montgomery. 349. 377 
 
 Rutherford v. Stamper, 106 
 
 Rutledge v. Lawrence. 213. 220. 490 
 
 Rutledge v. Smith, 563, 625, 820, 821 
 
 Ryan v. Dunlap, 488 
 
 Ryan v. Wilson, 50
 
 Ixiv 
 
 TABLE OF CASES. 
 
 [BEFEBEXCES ABE TO FACES.] 
 
 Ryder v. Jenny, 150 
 
 Hverson v. Chapman, 421, 423. 430, 
 
 431 
 Ryerson v. Willis, 447, 453, 458, 462 
 
 S. 
 
 Sable v. Broekmeier, 273 
 
 Sable v. Maloney. 569 
 
 Sackett v. Twining, 109 
 
 Sage v. tiones, 311 
 
 Sage v. Rannev, 611, 612 
 
 Saint v. Taylor, 839 
 
 St. Anthony's F. W. P. Co. v. Merri- 
 
 man, 565. 568 
 St. Clair v. Williams, 350 
 St. Louis v. Bissell, 321 
 St. Louis Rei. Co. v. Langley. 543 
 St. John v. Palmer, 361. 363 
 St. Mary's Church v. Stockton, 766, 
 
 770, 783 
 
 Salisbury v. Hatcher, 806 
 Salle v. 'Light, 424 
 Salmon v. Hoffman, 443 
 Salmon v. Vallejo, 262, 264 
 Salmon v. Webb, 593 
 Salmond v. Price, 136, 141 
 Saltonstall v. Gordon, 238, 239 
 Hilton-stall v. Riley, 93 
 Sampeyrac v. U. S., 180 
 ^-.inborn v. Gunter, 861 
 Sanborn v, Nockin, 496 
 Sandeman v. McKinsie, 187 
 Sanderlin v. Willis, 211, 604 
 Sanders v. Brown, 293 
 Sanders v. Hamilton, 124, 425 
 Sanders v. Lansing, 587 
 Sanders v. Wagner, 320, 404, 405 
 Sanford v. Travers, 695, 865 
 Sands v. Lynfaam, 137, 138 
 Sandwich Mfg. Co. v. Zellman, 288, 
 
 345, 523 
 
 Sanford v. Bulkley, 60 
 Sanford v. Justice, 252 
 Sanford v. Sanford, 548 
 Sanford v. Wheeler. 35 
 Sargent v. Guiterson, 285, 661 
 Satterfield v. Spier, 492 
 Saulters v. Victory, 214. 216 
 Saunders v. Flanniken, 376, 381 
 Saunders v. Guille, 771 
 Saunders v. Hamilton, 124, 425 
 Saunders v. Pate, 119 
 Savage v. Mason. 303 
 Savings Inst. v. Burdick, 566 
 savings & Loan Assoc. v. Meeks, 576 
 Sawyer v. Hovey. 568 
 Sawyer v. Kendall, 52 
 Sawyer v. Sledge, 594, 627 
 Sawyer v. Vaughan, 277 
 Sawyer v. Wiswall, .457 
 Sawyers v. Cator, 344 
 
 Sayre v. Mohney, 604, C16 
 Sayre v. Sheffield Land Co., 273 
 Scannell v. Am. Soda !'. Co., 738, 
 
 779, 791 
 
 Scantlin v. Anderson, 411, 445 
 Scates v. Fohn, 549 
 Schaatz v. Keener, 567 
 Schaefer v. Causey, 138 
 Schaefer v. Bluinentbal, 779 
 Schaeffer v. Bond, 133 
 Schaffer v, Grutzmachen, 542 
 Schamberg v. Leslie, 684 
 Scheible v. Slagle, 375 
 Schermerhorn v. Niblo, 707, 772 
 Schermerborn v. Vanderbeyden, 402 
 Scheu v. Lehning, 757, 828 
 Schiffer v. Dietz, 14, 235, 800, 805 
 Schley v. Baltimore, 92 
 Schmidt v. Reed, 805 
 Schnelle Lumber Co. v. Barlow, 275 
 Schofield v. Iowa Homestead Co., 265, 
 
 268, 276, 379 
 
 Scholle v. Scholle, 758, 760 
 Schoonover v. Daugherty, 565 
 Schott v. McFarland, 645 
 Schreck v. Pierce, 20, 34, 482 
 Schroeder v. Witham, 718 
 Schroeppel v. Hopper, 695 
 Schug's Appeal, 78 
 Schulenberg v. Harriman, 368 
 Schultze v. Rose, 739 
 Schumann v. Knoebel, 318, 469 
 Schuylkill. etc., 11. Co. v. Schmoele, 
 
 351, 354, 366 
 
 Schwartz v. Woodruff, 734, 799 
 Schwinger v. Hickock, 123 
 Scoffins v. Grandstaff, 263, 377, 381, 
 
 545 
 
 Scott v. Battle, 625, 655, 702 
 Scott v. Beutel, 775 
 Scott v. Bilgerry, 488 
 Scott v, Davis, 188 
 Scott v. Gallagher, 58 
 Scott v. Hanson, 822 
 Scott v. Morning, 271 
 Scott v. Nixon, 737 
 Scott v. Scott, 331, 432 
 Scott v. Sharp, 818 
 Scott v. Simpson, 732, 739 
 Scott v. Slaughter. 650 
 Scott v. Thorp, 808, 819 
 Scott v. Twiss, 256 
 Scribner v. Holmes, 304, 305 
 Scripture v. Morris, 775 
 Scriver v. Smith, 375 
 Scudder v. Andrews, 462, 650 
 Scudder v. Watt, 705, 777 
 Seaburn v. Sutherland, 695 
 Seaman v. Hicks, 82, 88, 736. 785 
 Seaman v. Vawdrey, 30, 711, 713 
 Seamore v. Harlan, 699, 703
 
 TABLE OF CASES. 
 
 [REFERENCES ARE TO PAGES.] 
 
 Searcy v. Kirkpatrick, 508 
 
 Sears v. Broady, 311, 433 
 
 Sears v. Stinson, 410 
 
 Seaton v. Barry, 667 
 
 Seaton v. Booth, 826 
 
 Seaton v. Mapp, 28, 30 
 
 Sebring v. Mersereau, 752 
 
 Second Univ. Soc. v. Dugan, 770 
 
 Second Univ. Soc. v. Hardy, 70S 
 
 Security Bank v. Holmes, 345 
 
 Sedgwick v. Hargrave, 707 
 
 Sedgwick v. Hollenbeck, 260, 279, 352 
 
 Seeley v. Howard, 207 
 
 Seibel v. Purchase, 587, 801 
 
 Seiberling v. Lewis, 794 
 
 Seitzinger v. Weaver, 657 
 
 Selden v. James, 820 
 
 Seldner v. McCreery, 715. 772 
 
 Selden v. Wilhans, 657, 661 
 
 Seller v. Lingerman, 137 
 
 Semple v. Wharton, 345, 409 
 
 Senning v. Bush, 772 
 
 Sessa v. Arthur, 452 
 
 Seton v. Slade, 189, 193, 798, 800,811 
 
 Settle v. Stephens, 681 
 
 Seventy- third St. Bldg. Co. v. Jencks, 
 
 318 
 
 Seward v. Willcock, 202 
 Sewell v. Wilkins, 201 
 Seymour v. Delancy, 692, 728, 730, 
 
 743, 806 
 
 Seymour v. Dennett, 613 
 Seymour v. Lewis, 309 
 Shackelford v. Hundly, 250, 252, 619, 
 
 855 
 
 Shackleton v. Sutcliffe, 30, 775 
 Shacklett v. Ransom, 156 
 Shadbolt v. Bassett, 469 
 Shafer v. Wiseman, 435 
 Shaffer v. Bolander, 127, 130 
 Shaffer v. Green, 281, 291, 292 
 Shaffer v. McCracken, 130 
 Shaffner v. Grutzmachen, 542 
 Shakespear v. Delaney, 12!) 
 Shankle v. Ingram, 357, 360 
 Shanks v. Whitney, 237 
 Shannon v. Marselis, 453, 838 
 Share v. Anderson, 657, 606 
 Sharland v. Leifschild, 20 
 Sharp v. Adcock, 711 
 Shattuck v. Cunningham, 486 
 Shattuck v. Lamb. 360 
 Shaw v. Bisbee, 337 
 Shaw v. Lord, 45 
 Shaw v. Vincent, 825 
 Shaw v. Wilkins, 215, 221. 228 
 Shaw v. Wright, 80 
 Slieard v. Willburn, 223 
 Shearer v. Fowler, 654 
 Shearer v. Ranger. 300, 831 
 Shears v. Dusenburv. 286. 426 
 
 Sheehy v. Miles, 724 
 
 Sheets v. Andrews, 200, 213, 216,392 
 
 Sheets v. Joyner, 339, 407, 428 
 
 Sheffey v. Gardner, 311, 360, 434 
 
 Shelby v. Marshall. 605 
 
 Shelby v. Williams, 847 
 
 Sheldon v. Newton, 95 
 
 Sheldon v. Stryker, 63 
 
 Shelley's Case, 767 
 
 Shelly v. Mikkleson, 507 
 
 Shelton v. Codman, 377 
 
 Shelton v. Livins, 32 
 
 Shelton v. Peas, 289, 326, 371 
 
 Shephard v. Carriel, 63 
 
 Shepherd v. ivahle, 519 
 
 Shephard v. Keatley, 29 
 
 Shephard v. Little/ 402 
 
 Shephard v. Mclntire. 513 
 
 Sherman v. Kane, 521 
 
 Sherman v. Ranger, 362 
 
 Sherman v. Savery, 597 
 
 Sherman v. Williams, 351, 352 
 
 Sherwin v. Shakespear, 164 
 
 Sherwood v. Johnson, 301 
 
 Sherwood v. Landon, 636 
 
 Sherwood v. \ amlenburgh, 552 
 
 Sherwood v. Wilkins, 287 
 
 Sheilds v. Allen, 86, 595 
 
 Shields v. Bogliolo. 699 
 
 Shiffer v. Deitz, 193, 238 
 
 Shiflett v. Orange Humane Soc., 617 
 
 Shipp v. Wheless, 134, 595, 605, 616, 
 
 695, 836 
 
 Shirley v. Shirley, 625 
 Shively v. Jones, 82 
 Shively v. Land Co., 579 
 Shober v. Dutton, 739. 742 
 Shober v. Robinson, 425 
 Shoemaker v. Johnson, 548 
 Shontz v. Brown, 154, 451, 657 
 Short v. Conlee, 63 
 Short v. Porter, 109, .138 
 Short v. Sears, 137 
 Shorthall v. Mitchell, 487 
 Shorthill v. Ferguson, 151 
 Shotwell v. Murray, 867 
 Shouse v. Doane, 34. 44, 201 
 Shriver v. Shriver, 700. 712, 730, 
 
 740, 742, 752, 826 
 Shrove v. Webb, 595 
 Shroycr v. Xickell. 138, 655 
 Shryer v. Morgan, 217 
 Shultz v. Moore. 58 
 Shultz v. Sanders, 127 
 Shurtz v. Thomas. 15, 497 
 Sibbald v. Lowrie, 189 
 Sibley v. Bullis. 144 
 Sibley v. Spring, 35 
 Sidders v. Riley, 284 
 Sidebotham, Ex parte, 188, 189 
 Sidwell v. Birney, 02
 
 Ixvi 
 
 TABLE OF CASES. 
 
 [REFERENCES ARE TO PAGES.] 
 
 Sikes v. Wild, 214, 226 
 Silbar v. Ryder, 564, 567 
 Silliman v. Gillespie, 493 
 Silverman v. Loomis, 389 
 Simanovich v. Wood, 283, 293 
 Simis v. McElroy, 743, <37, 767 
 Simmons v. Haseltine, 717, 720 
 Simmons v. North, 574 
 Simmons v. Zimmerman, 728 
 Simons v. Patchett, 213, 229 
 Simon v. Vandeveer, 734 
 Simpson v. Atkinson, 484 
 Simpson v. Belvin, 392, 417, 429 
 Simpson v. Greeley, 545 
 Simpson v. Hart, 837 
 Simpson v. Hawkins, 445, 631, 723, 
 
 830, 838, 840, 842 
 Sims v. Boaz, 204 
 Sims v. Gray, 138 
 Sims v. Lewis, 487 
 Sinclair v. Jackson, 524 
 Sine v. Fox, 337 
 Singletary v. Carter, 105 
 Sisk v. Woodruff, 370, 427, 430 
 Sisters, etc., v. Benzinger, 761 
 Sivoly v. Scott, 015 
 Sizemore v. Pinkston, 621 
 Skaaraas v. Finnegan, 214 
 Skally v. Shute, 353 
 Skerrett v. Presbyterian Society, 559 
 Skilleen v. May, 690 
 Skinner v. Fletcher, 64 
 Skinner v. Moore, 103 
 Skinner v. Starner, 286 
 Skull v. Clenister, 21 
 Slack v. McLagan, 467 
 Slack v. Thompson, 149 
 Slater v, Rawson. 256, 262, 388 
 Slaughter v. Tindle, 488 
 Slayback v. Jones, 353 
 Sloane v. Wells, 503 
 Slocum v. Bray, 47 
 Sloper v. Fish, 762 
 Small v. Atwood, 587 
 Small v. Jones, 523 
 Small v. Proctor, 552 
 Small v. Reeves, 273, 360, 445, 459, 
 
 469 
 
 Smeich v. Herbst, 620, 626 
 Smiley v. Fries, 522 
 Smith v. Abington Sav. Bk., 283,293 
 Smith v. Acker, 469 
 Smith v. Ackerman, 444, 459, 470 
 Smith v. Arnold, 110 
 Smith v. Babcock, 194, 684 
 Smith v. Brittain, 84 
 Smith v. Brittenham, 695 
 Smith v. Busby, 207, 695 
 Smith v, Cannell, 300, 526, 831 
 Smith v. Cansler, 805 
 Smith v. Carney, 210, 318 
 
 Smith v. Chancy, 650, 670 
 
 Smith v. Chapman, 563 
 
 Smith v. Compton, 404. 417, 431 
 
 Smith v. Davis, 299, 323 
 
 Smith v. Death, 730 
 
 Smith v. De Rusey, 545 
 
 Smith v. Detroit Min. Co., 191 
 
 Smith v. Dixon, 359 
 
 Smith v. Ellis, 30 
 
 Smith v. Fitting, 459 
 
 Smith v. Fly, 337, 866 
 
 Smith v. Haynes, 41, 633 
 
 Smith v. Henry, 200 
 
 Smith v. Hudson, 444, 633 
 
 Smith v. Hughes, 260, 304, 448, 634 
 
 Smith v. Hunt, 60 
 
 Smith v. Ingram, 350, 378, 527 
 
 Smith v. Jefts, 263, 311, 316 
 
 Smith v. Jones, 333, 445 
 
 Smith v. Kelly, 127, 128, 480, 487 
 
 Smith v. Kimball, 767 
 
 Smith v. Lamb, 584, 604 
 
 Smith v. Lewis, 202, 293. 604 
 
 Smith v. Lloyd, 280, 287, 291 
 
 Smith v. Mackin, 858 
 
 Smith v. McCluskey, 592 
 
 Smith v. McCool, 828 
 
 Smith v. Montes, 521 
 
 Smith v. Moreman, 770 
 
 Smith v. Munday, 129 
 
 Smith v. Newton, 444, 636 
 
 Smith v. Nolan, 474 
 
 Smith v. Painter, 118 
 
 Smith v. Parsons, 419, 459, 509 
 
 Smith v. Perry, 382 
 
 Smith v. Pettus, 509, 589 
 
 Smith v. Richards, 249, 311 
 
 Smith v. Robertson, 202, 203, 209, 
 
 624, 682, 690, 858 
 Smith v. Rogers, 203 
 Smith v. Schiele, 23 
 Smith v. Scribner, 360 
 Smith v. Shepard, 359 
 Smith v. Sillyman, 670, 671 
 Smith v. Smith, 202 
 Smith v. Sprague, 302, 420 
 Smith v. Strong, 272, 397. 403 
 Smith v. Taylor, 24, 25, 164, 724 
 Smith v. Turner, 762 
 Smith v. Williams, 519 
 Smith v. Winn, 80, 85, 868 
 Smith v. Wood, 575 
 Smith's Appeal, 509 
 Smithers v, Steiner, 828 
 Smithson v. Inman, 702 
 Smoot v. Coffin, 444, 639 
 Smyth v. Merc. Tr. Co., 235 
 Snelgrove v. Snelgrove, 180 
 Snell V. Mitchell, 480 
 Snevilly v. Egle, 275, 614 
 Snevely v. Lowe, 95
 
 TABLE OF CASES. 
 
 [REFERENCES ABE TO PAGES. ] 
 
 bcvii 
 
 Snider v. Coleruan, 138 
 
 Snow v. Monk, 488, 789, 790 
 
 Snyder v. Jennings, 363, 368 
 
 Snyder v. Lane, 291, 318, 320 
 
 Snyder v. Spaulding, 754 
 
 Socum v. Haun, 277 
 
 Sohier v. Williams, 90, 721. 760, b20 
 
 Somerville v. Hamilton, 429 
 
 Somers v. Schmidt, 424, 427, 429 
 
 Somes v. Skinner, 528, 531 
 
 Sons of Temp. v. Brown, 203, 207, 209 
 
 Soper v, Arnold, 187, 592 
 
 Soper v. Kipp, 799 
 
 Soper v. Stevens, 648 
 
 Sorrels v. McHenry, 205, 443, 589, 
 680 
 
 Soule v. Dixon, 458 
 
 Souter v. Drake, 20, 28 
 
 Southall v. McKeand, 223 
 
 Southby v. Hutt, 163, 189 
 
 Southcomb v. Bishop, 694, 697 
 
 Southern Pac. R. Co. v. Choate, 192, 
 193 
 
 Southern Wood Mfg. Co. v. Daven- 
 port, 410 
 
 Southwest Va. Min. Co. v. Chase, 298 
 
 Sowler v. Day, 559 
 
 Sparrow v. Kingman, 544, 552 
 
 Sparrow v. Oxford R. Co., 21 
 
 Spaulding v. Fierle, 202, 805 
 
 Spaulding v. Hallenbeck, 777 
 
 Spaulding v. Thompson, 299 
 
 Speakman v. Forepaugh, 196, 711, 
 733, 747 
 
 Spear v. Allison, 351, 673 
 
 Spence v. Durein, 251 
 
 Spencer's Case, 381 
 
 Spencer v. Howe, 326 
 
 Spencer v. Sandusky, 774, 805 
 
 Spencer v. Topham, 713 
 
 Spero v. Shulz, 789 
 
 Spicer v. Jones, 798 
 
 Spier v. Laman, 406, 552 
 
 Spiller v. Westlake, 609 
 
 Spindler v. Atkinson, 137 
 
 Spitznagle v. Van Hesscli, 04, 70 
 
 Spoor v. Green, 265, 636 
 
 Spoor v. Phillips, 121 
 
 Spoor v. 'i'ilson, 681 
 
 Sprague v. Baker, 263, 312, 370, 37.1 
 
 Spratt v. Jeffrey, 29 
 
 Spray v. Rodman, 512 
 
 Spring v. Chase, 404, 416 
 
 Spring v. Sanford, 772 
 
 Spring v. Tongue, 293 
 
 Sprinkle v. Shields, 499 
 
 Springs v. Harven, 138, 563 
 
 Spruill v. Davenport, 231 
 
 Spurr v Andrews, 298 
 
 Spurr v. Benedict, 834, 865 
 
 Staata v. Ten Eyck, 214, 270, 400, 414 
 
 Stackpole v. Robbins, 137 
 
 Stacy v. Kemp, 457 
 
 Stahley v. Irvine, 409, 668 
 
 Staley v. Ivory, 622 
 
 Stambaugh v. Smith, 289, 298 
 
 Stanard v. Eldridge, 260, 293, 315 
 
 Standifer v. Davis, 200, 207 
 
 Stanley v. Goodrich, 280 
 
 Stansbury v. Taggart, 453 
 
 Stanton v. Button, 64, 71 
 
 Stanton v. Tattersall, 21 
 
 Stansbury v. Ingelhart, 95, 97 
 
 Staples v. Dean, 402 
 
 Staples v. Flint, 433 
 
 Stapylton v. Scott, 482, 706 
 
 Star v. Bennett, 250 
 
 Stark v. Hill, 462, 685 
 
 Stark v. Homuth, 337 
 
 Stark v. OIney, 392, 402, 419, 423 
 
 Stark v, Sigelow, 46 
 
 Starke v. Henderson, 606 
 
 Starkey v. Neese, 444, 477, 648 
 
 Starnes v. Allison, 767 
 
 State v. Crutchfield, 158 
 
 State v. Gaillard, 82 
 
 State v. Holloway, 238 
 
 State v. Paup, 869 
 
 State v. Salyers, 127 
 
 Stead v. Baker, 849 
 
 Steadman v. Handy, 496 
 
 Stearns v. Hendersass, 521 
 
 Stebbins v. Wolf, 392, 397, 414 
 
 Steele v. Adams, 402 
 
 Steele v. Kinkle, 199, 242 
 
 Steele v. Mitchell, 148 
 
 Stehley v. Irvin, 409, 668 
 
 Steiner v. Baughman, 337, 362, 364, 
 
 517 
 
 Steiner v. Presby. Ch., 820 
 Steiner v. Zwickey, 47 
 Steinhardt v. Baker, 758 
 Steinhauer v. Witman, 666, 672, 674 
 Stelzer v. La Rose, 454, 466 
 Step v. Alkire, 492 
 Stephen's Appeal, 669, 775 
 Stephens v. Black, 507 
 Stephens v. Ells, 77 
 Stephens v. Evans, 444 
 Stephenson v. Harrison, 225 
 Sterling v. Peet, 156, 157, 271, 364, 
 
 399 
 
 Sternberg v. McGovern, 498 
 Stevans v. Evans, 273 
 Stevens v. Austin, 717 
 Stevens v. Banta, 757 
 Stevens v. Guppy, 189 
 Stevens v. Hampton, 58 
 Stevens v. Jack, 430 
 Stevens v. Van Ness, 587 
 Stevenson v. Buxton, 488 
 Stevenson v. Fox, 790
 
 Ixviii 
 
 TABLE OF CASES. 
 
 [REFERENCES ARE TO PACKS.] 
 
 Stevenson v. Loehr, 354, 510, 749, 
 
 755, 798, 803 
 Stevenson v. Mathers, 510 
 Stewart v. Anderson, 525, 544 
 Stewart v. Conyngham. 737 
 Stewart v. Devine, 752 
 Stewart v. Drake, 311, 320, 358, 372, 
 
 405 
 
 Stewart v. Insall, 684 
 Stewart v. Noble, 231 
 Stewart v. Stewart, 861 
 Stewart v. West, 146, 204, 330, 356, 
 
 364, 436 
 
 Stiger v. Bacon, 843, 845 
 Stiles v. Winder, 571 
 Stinchfield v. Little, 156 
 Stingle v. Hawkins, 200 
 Stinson v. Sumner, 313. 538 
 Stipe v. Stipe, 365, 372 
 Stitzel v, Copp, 804 
 Stobert v. Smith, 754, 709 
 Stock v. Aylward, 514 
 Stockett v. Goodman, 53 
 Stockham v. Cheney, 620 
 Stockton v. Cook, 196, 198, 839 
 Stockton v. George, 200 
 Stockton v. Union Oil Co., 825 
 Stockwell v. Couillard, 340 
 Stoddard v. Smith, 58'.), 822, 826 
 Stokely v. Trout, 277 
 Stokes v. Acklen, 815. 845 
 Stokes v. Johnson, 828 
 Stokes v. Jones, 527 
 Stone v. Buckner, 198, 447, 453, 481 
 Stone v. Darnell, 137 
 Stone v. Gover, 615, 619 
 Stone v. Hale, 561, 509 
 Stone v. Hooker, 364 
 Stone v. Lord, 207, 480 
 Stone v. Sprague, 205 
 Stone v. Young, 11 
 Stoney v, Shultz, 125, 131 
 Storrs v. Barker, 813 
 Story v. Conger, 36 
 Story v. Kemp, 648 
 Stout v. Gully, 90 
 Stout v. Jackson, 216, 329, 391 
 Stow v. Stevens, 36 
 Slowell v. Bernett, 267 
 Stowell v. Haslett, 563 
 Stowell v. Robinson, 792 
 Strain v. Huff, 444 
 Strange v. Watson, 485 
 Stratton v. Kennard, 648 
 Strauss v. Benheim, 716, 771 
 Strawn v. Strawn, 542 
 Strayn v. Stone, 568 
 Streaper v. Fisher, 382 
 Slreeper v. Abeln, 323 
 Streeter v. Henley, 444 
 Streeter v. Illsley, 755 
 
 Strickland v. Draughan, 52 
 
 Strike's Case, 702, 703 
 
 Strodes v. Patton, 83 
 
 Strohauer v. Voltz, 286 
 
 Strong v. Downing, 241, 445, 838 
 
 Strong v. Lord, 238, 620 
 
 Strong v. Strong, 235 
 
 Strong v. Smith, 257 
 
 Strong v. Waddell, 460, 506, 553, 603, 
 
 617, 649 
 
 Stroud v. Kasey, 127 
 Strouse v. Drennan, 101 
 Stryker v. Vanderbilt, 74 
 Stuart v. Dutton, 70 
 Stuart v. Nelson, 356 
 Stubbs v. Page, 271 
 Sturtevant v. Jaques, 748, 767 
 Stutt v. Bldg. Asson., 293 
 Stuuts v. Browne, 137 
 Stuyvesant v. Weil, 754 
 Styes v. Bobbins, 576 
 Styles v. Blume, 488 
 Sugg v. Stone, 490 
 Summerall v. Graham, 615 
 Summerfield v. White, 541, 542 
 Sumner v. Barnard, 526 
 Sumner v. Rhodes, 563 
 Sumner v. Sessions, 106 
 Sumner v. Williams, 153, 155, 271, 
 
 414, 417 
 
 Sumter v. Welch, 356, 475 
 Sunderland v. Bell, 445 
 Supervisors v. Bed High School, 777 
 Surget v. Arighi, 352 
 Susquehanna Coal Co. v. Quick, 377, 
 
 389 
 
 Sutherland v. DeLeon, 95 
 Sutton v. Baillie, 323, 348 
 Sutton v. Page, 214 
 Sutton v. Schonwald, 91, 106 
 Sutton v. Sutton, 37, 132, 845, 861 
 Suydam v. Jones, 283, 379, 383, ",S9, 
 
 * 403 
 
 Swafford v. Whipple, 275, 392, 402 
 Swaggerty v. Smith, 140, 141 
 Swain v. Burnett, 492, 725 
 Swain v. Burnley, 848 
 Swain v. Fidelity Ins. Co., 756, 757 
 Swaisland v. Dearsley, 30, 32 
 Swan v. Drury, 20, 33, 35, 195, 205 
 Swartz v. Ballou, 421 
 Swasey v. Brooks, 263, 377, 375, 431 
 Swayne v. Lyon, 754 
 Sweem v. Steele, 212, 213, 224, 231 
 Sweet v. Brown, 340, 548 
 Sweetser v. Lowell, 545 
 Sweetzer v. Hummel, 206, 209 
 Swenk v. Stout, 427, 433 
 Swepson v. Johnson. 482, 498 
 Swett v. Patrick, 398, 418, 421, 423 
 Swiggart v. Harber, 88, 96
 
 TABLE OF CASES. 
 
 [REFERENCES AISE TO PAGES.) 
 
 Ixix 
 
 Swihart v. Cline, 587 
 Swindell v. Richey, GOO 
 Sykes v. Robbins, 503 
 Syme v. Johnston, 798 
 Syme v. Trice, 10G 
 Symms v. James, 28, 30 
 
 T. 
 
 Tabb v. Binford, 329, 348 
 
 Taber v. Shattuck, 570 
 
 Taft v. Kessel, 36, 620, 623, 625, 634 
 
 Taggart v. Risley, 519, 549 
 
 Taggart v. Stanbury, 154, 155 
 
 Taintor v. Hemmingway, 38 
 
 Talbot v. Bedford, 356, 431, 434 
 
 Talbot v. Hooser, 60 
 
 Talbot v. Sebree, 699 
 
 Tallmadge v. Wallis, 335, 447, 450, 
 
 462, 464, 695 
 
 Tallman v. Green, 242, 515, 516 
 Tankersly v. Graham, 443, 615 
 Tanner v. Levingston, 274, 412 
 Tapley v. Lebaume, 271 
 Tapp v. Beverley, 41 
 Tapp v. Nock, 164, 795, 805 
 Tarbell v. Tarbell, 421 
 Tarpley v. Poage, 472 
 Tarlton v. Daily, 475 
 Tarwater v, Davis, 34 
 Tate v. Anderson, 140 
 Taul v. Bradford, 478, 601 
 Tavener v. Barrett, 148, 153 
 Taylor v. Barnes, 229 
 Taylor v. Davis, 156 
 Taylor v. Debar, 439, 517 
 Tayior v. Fleet, 193 
 Taylor v. Gilman, 285, 302 
 Taylor v. Harrison, 144 
 Taylor v. Heitz, 298, 317, 324 
 Taylor v. Holter, 421 
 Taylor v. Johnston, 207, 796 
 Taylor v. Kelly, 490 
 Taylor v. Leith, 248 
 Taylor v. Lane, 311, 382 
 Taylor v. Longworth, 207, 803 
 Taylor v. Lyon, 445, 635, 838, 842 
 Taylor v. Martindale, 30, 724 
 Taylor v. Porter, 47, 222, 224, 698 
 Taylor v. Preston, 38 
 Tay!or v. Rowland, 488 
 Taylor v. Shuffold, 543 
 Taylor v. Stewart, 436 
 Taylor v. Wainman, 545 
 Taylor v. Wallace, 401 
 Taylor v. Williams, 25, 164, 192, 718, 
 
 725 
 
 Teague v. Wade, 806 
 Teague v. Whaley, 301, 308, 418 
 Teal v. Langdale* 202 
 Teal v. Wood worth. 541 
 Tcderall v. Bouknight, 103 
 
 Tefft v, Munson, 531 
 
 Templeton v. Falls Lumber Co.. 115 
 
 Templeton v. Jackson, 676 
 
 Templeton v. Kramer, 447 
 
 Ten Broeck v. Livingston, 822 
 
 Tendring v. London, 480, 809 
 
 Tennell v. Dcwilt, 698 
 
 Tennell v. Roberts, 698 
 
 Terrell v. Farrar, 827 
 
 Terrell v. Herron, 652 
 
 Terrett v. Imp. Co., 282 
 
 Territt v. Taylor, 528 
 
 Terry v. Cutter, 129, 130 
 
 Terry v. Drabenstadt, 409, 418 4*2 
 
 424 
 
 Terry v. George, 206 
 Terry v. Westing, 777 
 Terte v. Maynard, 503 
 Tevis v. Richardson, 738, 742, 7f>;} 
 Tewksbury v. Howard, 73$ 
 Texas Lumber Mfg. Co. v. Branch 
 
 181 
 
 Tex. Ry. Co. v. Gentry, 448 
 Thacker v. Booth, 737 
 Thackeray, Re, 714 
 Thackeray v. Wood, 147 
 Tharin v. Ficklin, 20 
 Thayer v. Clemence, 313. 399 
 Thayer v. Palmer, 280, 332 
 Thayer v. Sheriff, 119 
 Thayer v. Torrey, 146 
 Thayer v. Wendell, 155 
 Thayer v. White, 34, 703 
 Thielen v. Richardson, 522 
 Thomas v. Bland, 381 
 Thomas v. Bartow, 22 - 
 Thomas v. Couitas, 234, 251 
 Thomas v. Davidson, 78, 81, 818 
 Thomas v. Dering, 500 
 Thomas v. Dockins, 571 
 Thomas v. Fleming, 727 
 Thomas v. Glazener, 118. 123 
 Thomas v. Harris, 668, 669, 670 
 Thomas v. Meier, 65 
 Thomas v. Perry, 259 
 Thomas v. Phillips, 835 
 Thomas v. Powell, 648 
 Thomas v. St. Paul's Ch., 496 
 Thomas v. Schee, 160 
 Thomas v. Stickle, 363, 368, 370, 374, 
 
 550 
 
 Thomas v. Wyatt, 45 
 Thompson v. Adams, 508 
 Thompson v. Avery, 726 
 Thompson v. Bra/ile, 433 
 Thompson v. Christian, 443, 657 
 Thompson v. Dallas, 189, 616. 771. 
 
 813 
 
 Thompson v. Doe. 99 
 Thompson v. Dullis, 616 
 Thompson v. Gould, 596
 
 Ixx 
 
 TABLE OF CASKS. 
 
 [BEFEREXCF.S ARE TO PAGES.] 
 
 Thompson v. Guthrie, 214, 222, 391, 
 
 414 
 
 Thompson v. Hart, 99 
 Thompson v. Hawley, 33, 35 
 Thompson v. Jackson, 866 
 Thompson v. Kilcrease, 224 
 Thompson v. Lee, 699 
 Thompson v. Marshall, 558, 569 
 Thompson v. McCord, 475 
 Thompson v. Merrill, 541 
 Thompson v. Miles, 586 
 Thompson v. Milliken, 737 
 Thompson v. Morrow, 414 
 Thompson v. Munger, 110, 111 
 Thompson v. Noble, 597 
 Thompson v. Sanders, 382 
 Thompson v. Schenectadv, &c., Co., 
 
 342 
 
 Thompson v. Shattuck, 380 
 Thompson v. Shepherd, 443 
 Thompson v. Shoemaker, 34, 461 
 Thompson v. Thompson, 44. 280 
 Thompson v. Tolmie, 98, 99, 101 
 Thorn v. Mayer, 766 
 Thorne v. Clark, 420 
 Thorndike v. Norris, 519 
 Thornton v. Mulquinne, 103 
 Thorp v. Keokuk Coal Co., 469, 648 
 Thrasher v. Finkard, 778 
 Thredgill v. Pintard, 406, 507, 508 
 Threlkeld v. Campbell, 78. 80, 141 
 Threlkeld v. Fitzhugh, 2i(i, 391, 394, 
 
 414 
 
 Thrift v. Fritz, 128 
 Thurgood v. Spring, 470 
 Thurman v. "Cameron, 62, 63 
 Thurmond v. Brownson, 136, 348 
 Thweatt v. McLeod, 661 
 Tibbetts v. Ayers, 462, 464, 467 
 Tibbetts v. Lesson, 292 
 Tiernan v. Roland, 774, 808 
 Tilley v. Bridges, 109 
 Tilley v. Land Co., 492 
 Tilley v. Thomas, 803 
 Tillotson v. Boyd, 262 
 Tillotson v. Gesner, 716, 817 
 Tillotson v. Grapes, 450, 461, 676 
 Tillotson v. Kennedy, 545 
 Tillotson v. Pritchard, 388, 397 
 Tilton v. Emery, 520 
 Timms v. Shannon, 446, 4.~>7. 609, 617 
 Tindall v. Cobham, 615, 694 
 Tindall v. Conover, 33, 34, 35 
 Tinney v. Ashley, 33, 208 
 Tinney v. Watson, 121 
 Tirnbey v. Kinsey, 228 
 Tison v. Smith, 793, 808 
 Tobin v. Bell, 33 
 Tobin v. Larkin, 492 
 Tod v. Gallaher, 512 
 Todd v. Down, 83 
 
 Todd v. Hoggart, 592 
 
 Todd v. McLaughlin, 698 
 
 Todd v. Union Dime Sav, Bank, 707, 
 
 764 
 
 Tollensen v. Gunderson, 679 
 Tompkins v. Hyatt, 189, 192, 610, 
 
 695, 811 
 
 Tomlin v. McChord, 763 
 Tomlinson v. Savage, 739, 827 
 Tone v. Brace, 836 
 Toney v. Toney, 588 
 Tong v. Matthews, C92 
 Toops v. Snyder, 566 
 Toole v. Toole, 77, 759, 812 
 Tooley v. Chase, 559 
 Tooley v. Kane, 88 
 Toplitf v. Atl. L. & Imp. Co., 779 
 Topp v. White, 245, 492, 587, 728 
 Torrance v, Bolton, 27, 28, 30 
 Tourville v. Naish, 453, 471 
 Towles v. Turner, 126 
 Town v. Needham, 132, 386 
 Towns v. Barrett, 584 
 Townsend v. Hubbard, 55 
 Townsend v. Lewis, 798 
 Townsend v. Morris, 329, 348, 433 
 Townsend v. Smith, 140 
 Townsend v. Tufts, 202 
 Townsend v. Ward, 286 
 Townsend v. Weld, 284, 291, 403 
 Townshend v. Goodfellow, 769, 808 
 Tracy v. Gunn, 224 
 Trapier v. Waldo, 77, 91 
 Trask v. Vinson, 214, 461, 483 
 Traver v. Halstead, 35, 205 
 Treat v. Orono, 683 
 Tremaine v. Lining, 148 
 Treptow v, Buse, 118 
 Trevino v. Cantu, 504, 580, 861 
 Trevivan v. Lawrence, 531 
 Trice v. Kayton, 305 
 Trinity Church v. Higgins, 282 
 Trigg v. Reade, 865 
 Trimmer v. Gorman, 746, 831 
 Troost v. Davis, 512 
 Troutman v. Cowing, 496 
 Troxell v. Johnson, 356 
 Troxell v. Stevens, 356, 381, 544 
 Trull v. Eastman, 526, 546, 550 
 Trulock v. Peeples, 62 
 Trumbo v. Lockridge, 445, 848 
 Trust Co. v. Muse, 80 
 Trustees v. Lynch, 596, 776 
 Trustees N. Y. Pub. School, In re, 
 
 746 
 
 Truster v. Snelson, 277 
 Trutt v. Spott, 332 
 Tryce v. Dittus, 804 
 Tubbs v. Gatewood, 67 
 Tucker v. Clarke, 536 
 Tucker v. Gordon, 126, 683, 684
 
 TABLE OF CASES. 
 
 Ixxi 
 
 [HEFEBENfKS ARE TO PAGES.] 
 
 Tucker v. McArthui, 311, 377 
 
 Tucker v. Woods, 35, 777 
 
 Tudor v. Taylor, 140 
 
 Tufts v. Adams. 202. 292, 313, 322, 
 
 359, 399 
 
 Tuggle v. Hamilton, 3(>G 
 Tuite v. Miller, 260, 3C2, 515 
 Tull v. Royston, 294 
 Tully v. Davis, 63 
 Turk v. Sidles, 89, 127 
 Turnbull v. Gadsden, 685 
 Turner v. Beaurain, 30 
 Turner v. Goodrich, 370, 373, 40-1, 
 
 421 
 
 Turner v. Harvey, 242 
 Turner v. Howell, 195 
 Turner v. McDonald, 729, 741 
 Turner v. Miller, 422 
 Turner v. Nightingale, 586 
 Turner v. Reynolds, 776 
 Turner v. Turner, 869 
 Tinney v. East Warren Co., 61 
 Turney v. Hemminway, 600 
 Tustin v. Faught, 46 
 Twambly v. Henlev, 256 
 Tweddell v. Tweddell, 286 
 Tweed v. Mills, 22, 29, 38 
 Tu-ohig v. Brown, 198, 601 
 Tybee v. Webb, 648 
 Tyler v. Young, 34, 461 
 Tymason v. Bates, 337 
 Tyree v. Williams, 764 
 Tyson v. Belcher, 106 
 Tyson v. Brown, 115 
 Tyson v. Eyrick, 214, 223 
 Tyson v. Passmore, 483 
 
 U. 
 
 Uhl v. Langhran, 757 
 Uhl v. Ohio R. R. Co., 439 
 Uhler v. Hutchinson, 59 
 Underwood v. Birchard, 351 
 Underwood v. Parker, 622 
 Underwood v. West, 695 
 Union Mut. Life Ins. Co. v. Crowl, 73 
 Union Nat. Bank v. Pinner, 843, 845 
 Union Pac. R. Co. v. Barnes, 648, 855 
 Union Safe'Dep. Co. v. (Jhisholm, 1(!0 
 Union Stave Co. v. Smith. 615 
 United States v. Bank of Georgia, 648 
 United States v. Cal., etc., Land Co., 
 
 53 
 
 United States v. Duncan, 122 
 University v. Joslyn, 352, 360 
 University v. Lassiter, 106 
 Updike v. Abel, 249 
 Upham v. Hamill, 119, 121 
 Upperton v. Nicholson, 163 
 Upshaw v. Debow, 246 
 Upson v. Howe, 92, 104 
 Upton v. Maurice, 748, 793 
 
 Upton v. Trebilcock, 250 
 Urmston v. Pate, 648, 861 
 Utica, etc., R. Co. v. Gates, 322 
 
 V. 
 
 Vail v. Nelson, 37, 193 
 
 Valle v. Clemens, 548 
 
 Valle v. Fleming, 136, 138, 513 
 
 Vanada v. Hopkins, 148, 154 
 
 Van Amringe v. Morton, 183 
 
 Van Benthuysen v. Crasper, 610 
 
 Vance v. Fore, 52 
 
 Vance v. House, 631, 638, 644, 738, 
 
 838 
 
 Vance v. Schuyler, 57, 60 
 Vance v. Shroyer, 622 
 Vancouver v. Bliss, 189 
 Vandever v. Baker, 31, 88 
 Vanderkarr v. Vanderkarr, 356 
 Van Epps v. Harrison, 695 
 Van Epps v. Schenectady, 35, 150, 
 
 155, 259, 826 
 
 Van Hoesen v. Benham, 259 
 Van Home v. Crain, 379 
 Van Lew v. Parr, 472, 475, 639, 680 
 Van Ness v. Bank, 58 
 Van Nest v. Kellum, 273 
 Van Nostraud v. Wright, 258 
 Vannoy v. Martin, 120 
 Van Rensselaer v. Kearney, 298, 439, 
 
 549 
 Van Rensselaer v. Van Rensselaer, 
 
 362 
 
 Van Riper v. Williams, 838 
 Van Riswick v. Wallach, 670 
 Van Schaick v. Lese, 736, 777 
 Vanscoyoc v. Kemler, 140, 141 
 Van Waggoner v. McEwen, 454, 838 
 Van Wagner v. Van Nostrand, 2.">8, 
 
 308, 333 
 
 Van Winkle v. Earl, 286 
 Van Wyck v. Richardson, 755 
 Vardaman v. Lawson, 23, 36, 148 
 Varick v. Briggs, 385 
 Varick v. Edwards, 547 
 Vather v. Hinds, 180 
 Vather v. Lytle, 118, 141 
 Vaughn v. Smith, 686 
 Vaughn v. Stuzaker, 260 
 Veeder v. Fonda, 88 
 Verdin v. Slocum, 128 
 Vernol v. Vernol, 195, 661 
 Vest v. Weir, 118, 602 
 Vick v. Percy, 446, 848 
 Viele v. R, Co., 190 
 Vielle v. Osgood, 44 
 Vincent v. Hicks, 3G7 
 Vivian v. Stevens, 445 
 Vining v. Leeman, 444, 622, 695 
 Volz v. Steiner, 755. 790 
 Voorhees v. Bank, 88, 94
 
 Ixxii 
 
 TABLE OF CASES. 
 
 [REFERENCES ARE TO PAGES.] 
 
 Voorhees v. De Meyer, 494, 550, 732, 
 
 798 
 
 Voorhis v. Bank, 90 
 Voorhis v. Forsyth, 297, 326 
 Vose v. Bradstreet, 51 
 Vought v. Williams, 721, 724, 746 
 Vreeland v. Blauvelt, 529, 707, 712, 
 
 768 
 Vrooman v. Phelps, 682 
 
 W. 
 
 Wachendorf v. Lancaster, 83, 402 
 
 Wacker v. Straub, 415, 447 
 
 VVaddell v. VVaddell, 768 
 
 Waddell v. Wolfe, 28, 29 
 
 Wade v. Comstock, 432 
 
 Wade v. Greenwood, 738 
 
 Wade v. Killough, 207, 615 
 
 Wade v. Lindsay, 527 
 
 Wade v. Percy, 844 
 
 Wade v. Thurman, 661, 681 
 
 Wadhams v. Inness, 409 
 
 Wadhams v. Swan, 259, 453 
 
 Wadleigh v. Glines, 541, 542 
 
 Wadsworth v. Wendell, 74 
 
 Wagenblast v. Washburn, 568 
 
 Waggle v. Worthy, 348 
 
 Waggoner v. Waggoner, 731 
 
 Wagner v. Finnegan, 363 
 
 Wagner v. Hodge, 747, 760, 766 
 
 Wagner v. Perry, 199, 239, 245, 778 
 
 Wailes v. Cooper, 446, 453, 847, 848 
 
 Wait v. Maxwell, 258 
 
 Wait v. Smith, 171 
 
 Wakeman v, Dutchess of Rutland. 
 
 147, 154, 861 
 
 Walbridge v. Day, 118, 120, 683 
 Walden v. Gridley, 118, 141, 142 
 Waldo v. Long, 320, 417 
 Waldron v. McCarty, 369, 371 
 Waldron v. Zollikoffer, 37 
 Wales v. Bogne, 92 
 Walke v. Moody, 120 
 Walker v. Arnold, 519 
 Walker v. Barnes, 831 
 Walker v. Constable, 594, 629 
 Walker v. Deane, 371 
 Walker v. Deaver, 265, 300, 311, 321, 
 
 346 
 
 Walker v. France., 660, 673 
 Walker v. Gilbert, 446, 638 
 Walker v. Oilman, 754 
 Walker v. Hall, 344, 540 
 Walker v. Johnson, 626 
 Walker v. Moore, 212, 215, 220 
 Walker v, Ogden, 507, 699 
 Walker v. Quigg, 195 
 Walker v. Ruffner, 107 
 Walker v. Towns, 613 
 Walker v. Wilson, 258, 448 
 Wall v. Mason, 512 
 
 Wallace v. Harmsted, 182 
 
 Wallace v. Maxwell, 543 
 
 Wallace v. McLaughlin, 485, 492,591 
 
 Wallace v. Minor, 528 
 
 Wallace v. Pereles, 387, 424 
 
 Wallace v. Talbot, 410 
 
 Walling v. Kinnaird, 20 / 
 
 Wallison v. Watkins, 460 
 
 Walsh v. Barton, 704, 783 
 
 Walsh v. Bayard, 488 
 
 Walsh v. Dunn, 418, 428 
 
 Walsh v. Hall, 236, 684 
 
 Walmsley v. Stalnaker, 849 
 
 Walter v, De Graaf, 46, 757 
 
 Walter v. Johnston, 449 
 
 Walters v. Miller, 201 
 
 Walther v. Briggs, 286, 523 
 
 Walton v. Bonham, 700, 838 
 
 Walton v. Campbell, 381, 421 
 
 Walton v. Cox, 137, 223, 424, 430 
 
 Walton v. Meeks, 718, 720, 729, 746 
 
 Walton v. Reager, 110, 112 
 
 Walton v. Wuterhouse, 520 
 
 Waltz v. Barroway, 99 
 
 Wamsley v. Hunter, 589 
 
 W T anner v. Sisson, 563 
 
 Ward v. Ashbrook, 274, 300, 363 
 
 Ward v. Bartholomew, 155 
 
 Ward v. Mclntosh, 436 
 
 Ward v. Packard, 242 
 
 Ward v. Williams, 110, 112 
 
 Ward v. Wiman, 65, 240, 684, 687 
 
 Warde v. Dixon, 713 
 
 Wardell v. Fosdick, 13, 661, 684, 687 
 
 Ware v. Houghton, 446 
 
 Ware v. Weatherall, 394, 400 
 
 Warfield v. &rdman, 295 
 
 Waring v. Ward, 286 
 
 Wark v. Willard. 534 
 
 Warner v. Hatfield, 34, 777 
 
 Warner v. Helm, 123 
 
 Warner v. Sisson, 561. 563 
 
 Warren v. Banning, 711, 718, 720, 769 
 
 Warren v. Carey, 241 
 
 Warren v. Richardson, 184 
 
 Warren v. nichmond, 195, 200 
 
 Warren v. Stoddart, 281, 317, 373, 
 
 471 
 
 Warren v. Wheeler, 214 
 Warwick v. Norvell, 842 
 Washer v. Brown, 509 
 Wash. City Bank v. Thornton, 147, 
 
 281, 311, 334 
 Waters v. Bagley, 311 
 Waters v. Mattin-ly, 858 
 Waters v. Thorn, 188 
 Waters v. Travis, 493. 826 
 Watkins v. Holman, 769 
 Watkins v. Hopkins, 617 
 Watkins v. Warsell, 519 
 Watkins v. Wimings, 132
 
 TABLE OF CASES. 
 
 Ixxiii 
 
 [REFERENCES ARE TO PAGES.] 
 
 Watson v. Baker, 249 
 
 Watson v. Church, 755 
 
 Watson v. Hoy, 78 
 
 Watson v. Kemp, 624 
 
 Watson v. Reissig, 123 
 
 Watt v. Rogers, 192 
 
 Watts v. Fletcher, 308 
 
 Watts v. Holland, 725 
 
 Watts v. Parker, 256 
 
 Watts v. Waddle, 698, 769, 811 
 
 Watts v. Wellman, 287 
 
 Waugh v. Land, 153 
 
 Way v. Raymond, 203 
 
 Wead v. Larkin, 388 
 
 Weatherbee v. Bennett, 301,, 325 
 
 Weatherford v. James, 501 
 
 Weaver v. Wilson, 444, 636 
 
 Webb v. Alexander, 369, 434 
 
 Webb v. Chisholm, 707 
 
 Webb v. Coons, 137 
 
 Webb v. Holt, 345, 417 
 
 Webb v. Hutt, 68 
 
 Webb v. Hughes, 193, 801 
 
 Webb v. Kirby, 28 
 
 Webb v. Pond, 282 
 
 Webb v. Spicer, 593 
 
 Webb v. Stephenson, 194, 793, 807 
 
 Webber v. Cox, 127 
 
 Webber v. Webber, 264 
 
 Weber v. Anderson, 404, 409 
 
 Webster v. Conley, 154 
 
 Webster v. Hall, 65 
 
 Webster v. Haworth, 125, 682 
 
 Webster v. Kings Co. N. Co., 599, 
 
 715, 774, 790, 794, 828 
 Weddall v. Nixon, 715 
 Wedel v. Herman, 72 
 Weed Machine Co. v. Emerson, 545 
 Weeks v. Toms, 754 
 Weems v. Love Manf'g Co., 84 
 Weems v. McCaughan, 342 
 Weidler v. Bank, 118, 125, 674 
 Weightman v. Reynolds, 5.'59 
 Weightman v. Spofford, 648 
 Weil v. Radley, 716, 737, 789 
 Weinstock v. Levison, 694, 757 
 Weiss v. Binnian, 199 
 Welbon v. Welbon, 341 
 Welch v. Davis, 157 
 Welch v. Button, 25 
 Welch v. Hoyt, 112 
 Welch v. Lawson, 211 
 Welch v. Matthews, 811 
 Welch v. Sullivan, 63 
 Welch v. Watkins, 589 
 Weld v. Traip, 299 
 Wellborn v. Finley, 519 
 Wellborn v. Schist, 482 
 Weller v. Trust Co., 304 
 Welles v. Cole, 59 
 Wellman v. Dismukes, 446, 589 
 
 Wells v. Abernathy, 214, 219 
 
 Wells v. Day, 19, 202, 827 
 
 Wells v. Lewis, 807 
 
 Wells v. Ogden, 568 
 
 Wells v. Smith, 208 
 
 Wells v. Walker, 180 
 
 Wells v. Yates, 566 
 
 Welsh v. Bayard, 488 
 
 Welsh v. Dutton, 551 
 
 Walshbillig v. Drennart, 556 
 
 Wendell v. North, 424, 426 
 
 Wentworth v. Goodwin, 446 
 
 Wesco v. Kern, 377, 385, 390 
 
 Wesley v. Eels, 706, 712, 780 
 
 Wessel v. Cramer, 781 
 
 West v. Shaw, 589 
 
 West v. Spaulding, 281 
 
 West v. Stewart, 259, 352 
 
 West v. West, 396 
 
 Westall v. Austin, 798 
 
 West B'way Real Estate Co. v. Bay- 
 
 liss, 658 
 
 Westbrook v. McMillan, 476 
 West Coast Mfg. Co. v. Imp. Co., 
 
 392, 410 
 Western Mining Co. v. Coal Co., 545, 
 
 546 
 
 Westervelt v. Mattheson, 492 
 Westfall v. Washlagel, 738 
 Westhafer v. Koons, 754 
 Westheimer v. Reed, 651 
 Westrope v. Chambers, 263, 368 
 Wetherbee v. Bennett, 301, 325 
 Wetherell v, Brobst, 492 
 Wetmore v. Bruce, 587, 594, 596, 776 
 Wetzel v. Richcreek, 256, 360, 407 
 Weyand v. Tipton, 770 
 Whallon v. Kauffman, 338 
 Whatley v. Patton, 397 
 Wheat v. Dotson, 443, 464, 620, 695 
 Wheatley v. Slade, 491 
 Wheaton v. Wheaton, 868 
 Wheeler v. Hatch, 256, 271, 410 
 Wheeler v. McBain, 519 
 Wheeler v. Sohier, 382, 383 
 Wheeler v. Standley, 446, 856 
 Wheeler v. Styles, 214, 406, 552 
 Wheeler v. Tracy, 20, V75 
 Wheeler v. Wayne Co., 332, 343 
 Wheelock v. Overshiner, 431 
 Wheelock v. Thayer, 388 
 Whisler v. Hicks, 444, 459, 469, 470 
 Whitbeck v. Cook, 260, 304 
 Whitbeck v. Waine, 452 
 White v. Brocaw, 340. 548 
 White v. Dobson. 492 
 White v. Ewing, 447, 448 
 White v. Foljambe, 134, 154, 744 t 
 White v. Furtzwangler, 450 
 White v. Graves. 181 
 White v. Hardin, 695
 
 Ixxiv 
 
 TABLE OF CASES. 
 [REFEKENCES ABE TO PAGES.] 
 
 White v. Lowery, 6C8, 683 
 
 White v. Mooers, 481 
 
 White v. Park, 140 
 
 White v. Patton, 527, 531 
 
 White v. Presly, 382, 
 
 White v. Sayre, 54 
 
 White v. Seaver, 681 
 
 White v. Stevens, 269 
 
 White v. Stretch, 843 
 
 White v. Sutherland, 235 
 
 White v. Tucker, 222, 698 
 
 White v. Whitney, 359, 382, 386, 398 
 
 White v. Williams, 428 
 
 Whitehead v. Brown, 561 
 
 Whitehead v. Carr, 150 
 
 Whitehill v. Gotwalt, 343, 344 
 
 Whitehurst v. Boyd, 34, 589 
 
 Whiteman v. Castleburg, 618 
 
 Whitesides v. Cooper, 347 
 
 Whitesides v. Jennings, 214 
 
 Whitesides v. Magruder, 008, 323 
 
 Whitlock'v, Denlinger, 234, 444, 622, 
 
 635 
 
 Whitlock, Ex parte, 758 
 Whitman v. Westman, 573 
 Whitmore v. Parks, 122 
 Whitney v. Allaire, 14, 191, 661, 633, 
 
 686 
 
 Whitney v. Arnold, 70 
 Whitney v. Brooks, 141 
 Whitney v. Cochran, 619 
 Whitney v. Dewey, 156, 415 
 Whitney v. Dinsmore, 202, 313, 372, 
 
 377 
 
 Whitney v. Lewis, 447, 462 
 Whitney v. Railroad Co.. 301 
 Whitney v. Smith, 568 
 Whitson v. Grosvenor, 519, 522 
 Whittaker v. Kone, 259 
 Whittaker v. Miller, 44 
 Whittemore v. Whittemore, 491, 825 
 Whittemore v. Farrington, 560, 648, 
 
 657, 862 
 
 Whitten v. Krick, 291, 311, 346 
 Whittey v. Lide, 838 
 Whittington v. Corder, 21 
 Whitworth v. Stuckey, 477, 624, 639, 
 
 645 
 
 Whitzman v. Hirsh, 380, 401 
 Wickham v. Ernest, 615 
 Wickham v. Evered, 694 
 Wickliff v. Clay, 587, 698, 700 
 Wickliff v. Lee, 695, 742 
 Wicklow v. Lane, 521 
 Wickman v. Robinson, 625 
 Widmer v. Martin, 815 
 Wieland v. Renner, 737 
 Wiesner v. Zaun, 519 
 Wiggins v. McGimpsey, 35, 195, 199, 
 
 600, 611, 616 
 
 Wiggins v. Pender, 357, 369, 377,390, 
 
 422 
 
 Wight v. Gottschalk, 348 
 Wight v. Shaw, 548 
 Wightman v. Reside, 821 
 Wilburn v. McCalley, 115 
 Wilcox v. Latin, 187, 695 
 Wilcox v. Lucas, 571 
 Wilcox v. Musche, 315 
 Wilcoxon v. Galloway, 492 
 Wilde v. Fort, 184, 220 
 Wilder v. Ireland, 255, 259, 350, 425, 
 
 428, 437 
 
 Wilder v. Smith, 848 
 Wiley v. Fitzpatrick, 634, 841 
 Wiley v. Howard, 241, 615, 622, 79G 
 Wiley v. White, 134, 628, 650, 65(i 
 Wilgus v. Hughes, 505 
 Wilhelm v. Federgreen, 742, 743 
 Wilhelm v. Fimple, 203, 224, 599, 
 
 702 
 
 Wilkerson v. Allen, 79 
 Wilkerson v. Chadd, 444 
 Wilkins v. Hogue, 447, 848 
 Wilkins v. Irvine, 599 
 Wilkinson v. Green, 506 
 Wilkinson v. Roper, 51 
 Willan v. Willan, 853, 871 
 Willard v. Twitchell, 255 
 Wilier v. Weyand, 497 
 Willets v. Burgess, 315, 321 
 William Farrell Co. v. Deshon, 472 
 Williams v. Beeman, 377, 401, 415 
 Williams v. Baker, 459 
 Williams v. Burg, 382, 422, 426, 428 
 Williams v. Burrell, 408, 417 
 Williams v. Carter, 698, 734 
 Williams v. Cudd, 576 
 Williams v. Cummings, 127 
 Williams v. Daly, 164, 165 
 Williams v. Doolittle, 774 
 Williams v. Edwards, 492, 500, 726 
 Williams v. Fowle, 282 
 Williams v. Fryburger, 452 
 Williams v. Glenn, 78, 81, 87 
 Williams v. Glenton, 229 
 Williams v. Hathaway, 657 
 Williams v. Hogan, 256, 259 
 Williams v. Johnson, 117 
 Williams v. Lee, 837 
 Williams v. Mansell, 482 
 Williams v. Marx, 714 
 Williams v. McDonald, 109 
 Williams v. Mitchell, 700, 855 
 Williams v. Monk, 597 
 Williams v. Pendleton, 505 
 Williams v. Peters, 519 
 Williams v. Pope, 497 
 Williams v. Porter, 737, 815 
 Williams v. Potts, 35 
 Williams v. Reed, 654
 
 TABLE OF CASES. 
 
 [REFERENCES ARE TO PAGES.] 
 
 Ixxv 
 
 Williams v. Rogers, 698, 700, 703 
 Williams v. Sax, 458 
 Williams v. Schembri, 757 
 Williams v. Seawell, 759 
 Williams v. Shaw, 363, 425 
 Williams v. Thomas, 245, 253, 405, 
 
 613 
 Williams v. Wetherbee, 263, 383, 390, 
 
 426, 431, 436 
 
 Williams v. Williams, 519 
 Williams v. Wilson, 699 
 Williamson v. Banning, 763 
 Williamson v. Field, 78, 752 
 Williamson v. Johnston, 121 
 Williamson v. Neeves, 595, 795 
 Williamson v. Raney, 607, 695 
 Williamson v. Test, 402 
 Williamson v. Williamson, 418, 433 
 Willis v. Saunders, 568, 570, 573 
 Willison v. Watkins, 507 
 Wills v. Porter, 187 
 Wills v. Primm, 433, 435 
 Wills v. Slade, 737 
 Wills v. Van Dyke, 119 
 Willson v. Willson, 271, 318, 391, 414 
 Wilmot v. Wilkinson, 202 
 Wilsey v. Dennis, 145, 732, 781, 782 
 Wilson v. Breyfogle, 688 
 Wilson v. Bumfield, 497, 826 
 Wilson v. Carey, 31 
 Wilson v. Cochran, 158, 301, 375, 388, 
 
 665, 668, 671, 675 
 Wilson v. Cox, 492 
 Wilson v. Deen, 863 
 Wilson v. Forbes, 258, 265, 271, 272 
 Wilson v. Getty, 35, 36, 595 
 Wilson v. Higbee, 245, 664 
 Wilson v. Holden, 16 
 Wilson v. Holt, 136, 138 
 Wilson v. Inloes, 51 
 Wilson v. Irish, 144, 350, 676 
 Wilson v. Jeffries, 730 
 Wilson v. Johnson, 52 
 Wilson v. Jordan, 443 
 Wilson v. King, 573 
 Wilson v. Mason, 180 
 Wilson v. McElwee, 426 
 Wilson v. McNeal, 73 
 Wilson v. McVeagh, 770 
 Wilson v. Moore, 472 
 Wilson v. Parshall, 277 
 Wilson v. Peele, 349, 416 
 Wilson v. Raben, 79 
 Wilson v. Riddick, 195 
 Wilson v. Robertson, 215 
 Wilson v. Shelton, 402 
 Wilson v. Smith, 90, 105 
 Wilson v. Spencer, 212, 215 
 \Vilson v. Stewart, 576 
 Wilson v. Tappan, 732, 766, 798 
 Wilson v. Taylor, 384 
 
 Wilson v. Traer, 58 
 
 Wilson v. Wetherly, 507 
 
 Wilson v. White, 111, 114, 752 
 
 Wilson v. Widenham, 256, 387 
 
 Wilson v. Williams, 496 
 
 Wilson v. Wood, 144, 145 
 
 Wilson v. Zajicek, 830 
 
 Wilson's Appeal, 067, 671, 673 
 
 Wilson's Case, 175 
 
 Wilt v. Franklin, 402 
 
 Wiltsie v. Shaw, 768 
 
 Wilty v. Hightower, 356, 3(50, 371, 
 
 638, 676, 848 
 
 Wimberg v, Schwegeman, 622, 838 
 Wimberly v. Collier, 423, 420 
 Winans v. Huyck, 566 
 Winch v. Bolton, 445 
 Windle v. Bonebrake, 511 
 Winfrey v. Drake, 535 
 Wing v. Dodge, 109 
 Wingate v. Hamilton, 493, 497 
 Wingo v. Brown, 119, 121, J25 
 Wingo v. Parker, 519 
 Winkler v. Higgins, 62 
 Winne v. Reynolds, 602, 776, 823 
 Winningham v. Pennock, 311, 321 
 Winnipiscogee Paper Co. v. Eaton 
 
 409, 418 
 Winnipiscogee Lake Mfg. Co. v Per- 
 
 ley, 559 
 
 Winslow v. Clark, 138 
 Winslow v. Cornell, 137 
 Winslow v. McCall, 360 
 Winstead v. Davis, 446 
 Winter v. Dent, 126 
 Winter v. Elliott, 703 
 Winter v. Stock, 710 
 Wintermute v. Snyder, 874 
 Winton v. Sherman, 207 
 Wise v. Postlewait, 60 
 Wisely v. Findlay, 53 
 Wiswall v. McGowan, 487, 500 
 Witbeck v. Waine, 661 
 Withers v. Baird, 58, 150, 589, 763 
 Withers v. Morel I, 841 
 Withers v. Powers, 360 
 Witherspoon v. McCalla, 702 
 Withey v. Munford, 383, 385 
 Withouse v. Schaack, 566 
 Wittbecker v. Waiters, 572 
 Witter v. Biscoe, 148 
 Wofford v. Ashcroft, 839. 843 
 Wohlforth v. Chamberlain, 226, 716 
 Wolbert v. Lucas, 670, 67 1 
 Wolcott v. Johns, 727 
 Wold v. Newguard, 829 
 Wolf v. Fogarty, 63 
 Wolford v. Phelps, 126 
 Wollenberg v. Rose, 721, 733 
 Wolverton v. Stevenson, 761 
 Wornack v. Coleman, 771
 
 Ixxvi 
 
 TABLE OF CASES. 
 
 [REFERENCES ABE TO PAGES.] 
 
 Wood v. Bibbins, 392 
 
 Wood v. Colvin, 130 
 
 Wood v. Downes, 188 
 
 Wood 1 v. Forncrook, 362 
 
 Wood v. Griffith, 491 
 
 Wood v. Johnson, 252 
 
 Wood v. Lewis, 121 
 
 Wood v. Majoribanks, 774 
 
 Wood v. Mann, 78, 181 
 
 Wood v. Perry, 506 
 
 Wood v. Thornton, 412 
 
 Woodbury v. Luddy, 496 
 
 Woodcock v. Bennett, 21, 483, 489 
 
 Woodfolk v. Blount, 653 
 
 Woodhead v. Foulds, 737 
 
 Wooding v. Grain, 799, 805 
 
 Woodruff v. Bunce, 447, 639, 836, 
 
 838, 841 
 
 Woodruff v. Depue, 843 
 Woodward v. Brown, 311 
 Woods v. North, 239, 538, 806 
 Woodward v. Allen, 366, 426, 434 
 Woodward v. Rogers, 472, 473 
 Woodward v. Woodward, 173 
 Woodward's App., 38 
 Woodworth v. Jones, 447 
 Woolcot v. Peggie, 503 
 Wooley v. Hampton, 153 
 Wooley v. Hineman, 265. 270, 313 
 Wooley v. Newcombe, 275, 277, 279 
 Workman v. Mifflin, 354 
 Worley v. Northcott, 615, 618 
 Wortin v. Howard, 113 
 Worthington v. Curd, 198, 291, 841 
 Worthington v. Hylyer, 51 
 Worthington v. McRoberts, 81, 83, 109 
 Worthington v. Warrington, 28, 223 
 Worthy v. Johnson, 157 
 Wotton v, Hele, 351, 434 
 Wragg v. Meade, 324 
 Wray v. Furniss, 836, 838 
 Wright v. Blackley, 615, 796 
 Wright v. Carvillo, 13, 661, 662 
 Wright v. Delafield, 563, 616 
 Wright v. Dickson, 589, 696 
 Wright v. Edwards, 91 
 Wright v. Griffith, 189 
 Wright v. Lasselle, 265 
 Wright v. Mayer, 736 
 Wright v. Nipple, 265, 410, 416 
 Wright v. Phipps, 371, 372. 458 
 Wright v. Sperry, 386 
 Wright v. Swayne. 587 
 Wright v. Welis, 59 
 Wright v. Wright, 622 
 Wright v. Young, 496 
 Wnesthoff v. Seymour, 235 
 Wyant v. Tuthill, 79 
 Wyatt v. Garlington, 625 
 
 Wyatt v. Rambo, 113 
 Wyche v. Green, 561 
 Wyche v. Macklin, 682 
 Wyman v. Ballard, 315 
 Wyman v. Brigden, 359 
 Wyman v. Campbell, 116 
 Wyman v. Heald, 624 
 Wynn v. Harmon, 544, 548 
 Wynne v. Morgan, 799 
 
 Y. 
 
 Yancey v. Lewis, 849 
 
 Yancey v. Tatlock, 291 
 
 Yazel v. Palmer, 633 
 
 Yeates v. Prior, 47, 241 
 
 Yock v. Mann, 519 
 
 Yocum v. Foreman. 89, 90 
 
 Yoder v. Swearingen, 704 
 
 Yokum v. McBride, 229 
 
 Yokum v. Thomas, 420 
 
 York v. Allen, 458 
 
 York v. Gregg, 683, 826 
 
 Yost v. Devault, 496 
 
 Youmans v. Edgerton, 592 
 
 Young v. Bumpass, 238 
 
 Young v. Butler, 356, 447, 639 
 
 Young v. Clippenger, 340, 545 
 
 Young v. Collier, 798 
 
 Young v. Figg, 460 
 
 Young v. Gower, 301 
 
 Young v. Harris, 233, 621, 628, 680, 
 
 696, 700 
 
 Young v. Hervey, 782 
 Young v. Hopkins, 245, 246 
 Young v. Lillard, 732 
 Young v. Lofton, 468 
 Young v. Lorain. 101, 551 
 Young v. McCherry, 78, 195. 639 
 Young v. McCorniick, 838 
 Young v. Paul, 35, 495, 499, 830 
 Young v. Rathbone. 753 
 Young v. Sincombe, 615 
 Young v. Stevens, 695 
 Young v. Triplett, 381 
 Young v. Wright, 36 
 Youngman v. Linn, 667, 670 
 Younie v. Walrod, 195 
 
 Z. 
 
 Zent v. Picken, 256, 258 
 Zerfing v. Stelig, 644 
 Zibley v. Sears, 41)6, 497 
 Zimmerman v. Lynch, 342 
 Zimmerman v. Owen, 721 
 Zollman v. Moore, 869 
 Zorn v. McParland, 812 
 Zuenker v. Kuehn, 855, 866
 
 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," l 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- 
 stone declares that a perfect title consists in the union of the posses- 
 
 1 1 Co. Inst.845. 
 
 8 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.
 
 2 MARKETABLE 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 is incumbered. 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 lack not necessarily all, but 
 some one or more of the essentials of a good title, and, as between 
 vendor and purchaser, may be such though the paramount title be 
 
 1 1 Bl. Com. 195. 
 
 * 2 Warvelle Vend. 649. 
 
 Post, ch. 31.
 
 INTRODUCTORY. 3 
 
 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 
 incumbrance 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. 
 'Ch. 24. 
 4 Ch. 2. 
 * Ch. 11.
 
 4 MARKETABLE TITLE TO SEAL ESTATE. 
 
 awarded the plaintiffs. 1 In all these cases the purchaser elects to 
 abide by the contract and keep the estate. 
 
 Bnt 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 statu qua, 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 
 permit 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 ; * 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. v 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 filed 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 statu 
 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 co-exidtent, and his choice of the one or the other is to be con- 
 
 1 Chs. 17, 18 and 19. 
 
 * Ch. 28. 
 
 Ch. 24. 
 
 'Ch. 30. Newberry v. Ruffin, 102 Va. 73; 45 S. E. 73, citing the text.
 
 INTRODUCTORY. 5 
 
 trolled by the particular circumstances of his 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. 8 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; 8 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. 
 Ch. 10, 97. 
 'Ch. 8. 
 Ch. 32. 
 Ch. 38.
 
 6 MARKETABLE TITLE TO liEAI, 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 be impossible to place them in statu quo ; l 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 must 
 see that covenants for title by the vendor, adequate for that pur- 
 pose, are inserted in the conveyance. The maxim caveat emptor 
 
 1 Chs. 25 and 30. 
 
 * Cb. 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 he 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. 
 Ch. 27.
 
 8 MABKETABLE 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 file 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. 2 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. 3 
 
 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 
 be 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 
 
 1 Ch. 16. 
 Ch. 21. 
 Ch. 22. 
 Ch. 26. 
 Ch.16.
 
 INTRODUCTOnY. 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. 8 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. 8 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 r: 
 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, p.nd the ordei 
 in which those remedies and defenses are treated, will be perceived 
 The term " marketable " or " defective " title, as between vendoi 
 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. 85. 
 
 Ch. 34. 
 Ch.34, 837.
 
 10 MARKETABLE TITLE TO" SEAL 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 MAT 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 iaa& 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. 1 
 
 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. 
 
 8 1 Sudg. Vend. (8th Am. ed.) 357 (236). 
 Bac. Abr. Assumpsit (C). 
 
 *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 stipulations and conditions of 
 the bond, is sufficient under the Code. Holman v. Criswell, 15 Tex. 895, the 
 court saying that the common-law rule, contra, in 1 Chitty PI. 863 does not apply 
 to the system of Code pleading in Texas.
 
 12 MARKETABLE TITLE TO BEAL 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 ; and where the 
 contract is not under seal, the form of action is the same in either 
 cage trespass on the case in assumpsit. The two causes of action, 
 however, must not be confounded, as seems sometimes to have been 
 done. The action of assumpsit 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 he 
 will set out the substance of it in his declaration, and claim dam- 
 ages for the breach. 1 He 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, 8 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 
 
 'Chitty Cont. (10th Am. ed.) 339; 1 Sugd. Vend. (8th Am. ed.) 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 convey a good title. 
 In Maine the measure of damages in such a case is 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 this value, less what 
 remains due on the contract price. The necessary consequence 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 the contract price, the plaintiff 
 will not be entitled to recover as damages as much as he has paid on the hind. 
 To obviate this difficulty, the plaintiff in this case was permitted to amend his 
 declaration by adding a count for money had and received, under which he might 
 recover all that he had paid on the contract. 
 
 * Ingaus v. Hahn, 47 Hun (N. Y.), 104, 
 
 * 1 Sugd. Vend. (8th Am. ed.) 547 (362); 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 he 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.' 
 
 1 2 Warvelle Vend. 955; Lynch v. Merc. Trust Co.. 18 Fed. Rep. 486. 
 
 3 Reese v. Kirk, 29 Ala. 406; Alvarez v. Brannan, 7 Gal. 503; 68 Am. Dec. 
 274; Wright v. Carillo, 22 Cal. 604. 
 
 'Haynes v. Farley, 4 Port. (Ala.) 528; Greene v. Allen, 32 Ala. 215. 
 
 4 Sugd. Vend. (8th Am. ed.) 357. 
 
 Barron v. Easton, 3 Iowa, 76; Katz v. Henig, 66 N. Y. Supp. 530; 32 
 Misc. 672. 
 
 Lynch v. Merc. Trust Co., 18 Fed. Re.p. 486 ; Kmmm 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. (N. Y.) 335; 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 se rt - 
 ond action or resort to any other means to enforce the contract. 1 
 If he 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 he 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. 8 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 
 
 images.* 
 
 If the purchaser accept a conveyance of the premises, he cannot 
 
 v. Avery, 7 Wend. (N. Y.) 386; 22 Am. Dec. 586; Whitney v. Allaire, 1 Comst. 
 (N. Y.) 305; Clark v. Baird, 9 N. Y. 197; Graves v. Spier, 58 Barb. (N. 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.) 357 (236); Orme v. Boughton, 10 Bing. 537; 25 
 E. C. L. 254; Hopkins v. Lee, 6 Wheat. (U. 8.) 109; Buckmaster v. Grundy, 3 
 Gil. (HI-) 626, 636; Hill v. Hobart, 16 Me. 169. 
 
 Schiffer v. Dietz, 83 N. Y. 300, 308, citing Mason v. Bovet, 1 Den. (N. Y.) 
 69; 43 Am. Dec. 651 ; Cobb v. Hatfield, 46 N. Y. 533; Lawrence v. Daie, 3 
 Johns. Ch. (N. Y.) 23. Remedies in affirmance and remedies in disafflrmance or 
 rescission of the contract are non-concurrent and inconsistent with each other. 
 Bowen v. Mandeville, 95 N. Y. 240. 
 
 3 Sugd. Vend. (8th Am. ed.) 547 (362); 1 Chit. Cxmt. (10th Am. ed.) 339 ; Cam- 
 field v. Gilbert, 4 Esp. 221. 
 
 4 In the State of New York the cases do not show that this distinction has been 
 observed. An action there for damages in failing to perform the contract to 
 convey a good title seems to be regarded as in effect the same as an action to 
 recover back the purchase money eo nomine, probably because in such an action 
 the damages are, as a general rule, limited to the purchase money paid, interest, 
 costs and expenses. There can be no question, however, as to the right to 
 recover the expenses of examining the title as a part of the damages. Higgins 
 v. Eagleton, 34 N. Y. Supp. 225. See post, 93. The expenses of examining 
 the title may be recovered in an action to recover back the deposit. Effen- 
 heim v. Von Hafen, 23 N. Y. Supp. 348 (N. Y. City Court).
 
 ACTION FOR BREACH 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, 
 he 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.), 368; Carter v. Beck, 40 Ala. 599. 
 
 * Clarke v. Locke, 11 Humph. (Tenn.) 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 incumbrances 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. 
 
 1 Eames v. Savage, 14 Mass. 428; Newcomb v. Brackett, 16 Man. 166.
 
 16 MARKETABLE TITLE TO REAL ESTATE. 
 
 elsewhere under what circumstances the vendor will be allowed time 
 in which to remove objections 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 unable 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 
 reasons for the comparative disuse of the action affirming the con- 
 tract 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 has 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. 5 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 DT 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 recover 
 back the purchase money in this respect, namely, that in the former 
 action the plaintiff cannot recover unless he shows that the title is 
 
 1 Post, ch. 32. 
 
 * Post, 117, 244, 281. There are many cases which sustain this view. But 
 see Wilson v. Hoiden, 16 Abb. Pr. (N. Y.) 133, where it is intimated that if the 
 defense of defective title is made in an action by the vendor for breach of the 
 contract, the burden devolves on him to show a good title. 
 
 * Gammon v. Blaisdell, 45 Kans. 221. 
 
 4 Hurst v. Meats, 2 Swan (Tenn.), 594. * 
 
 * Post, 2.
 
 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 damages, 
 nothing beyond the purchase money and interest. But in respect 
 to the remedy and the pleadings the distinction is vitally important ; 
 for if he declares upon the contract and claims damages for the 
 breach, arid 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. 5 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 
 
 'In^nlls v. Hahn, 47 Hun (N. Y.), 104; Post, 286, "Doubtful Titles at 
 Law." Roberts v. McFadden, (Tex. Civ. App.) 74 S. W. 105, citing the text. 
 
 -Post, eh. 25. 
 
 3 Oakos v. Buckley, 49 Wis. 592. 
 
 1 Bedell v. Smith, 37 Ala. 619. The reasons for this rule were thus stated by 
 ALLEN, J., in Fletcher v. Button, 6 Barb. (N. Y.) 646, which was n 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 nou- performance of which this action is 
 3
 
 18 MARKETABLE 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, was for the title to, and not the possession of, the premises. The 
 possession of the premises could not have been in part performance of such' 
 contract; and although it may have been beneficial to the plaintiff, it did not 
 at all mitigate the damages sustained 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 willfxilly refused to 
 perform his contract, he 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 be per- 
 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 premises,, 
 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 mistake. 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 premises 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, Haynes v. Farley, 4 Port. (Ala.) 528; 
 Gray v. Mills, 83 Fed. 824. 
 
 '2 Warvelle Vend. 963; Lewis v. White, 16 Ohio St. 444. 
 
 2 Post, ch. 31. 
 
 3 Gilbert v. Cherry, 57 Ga. 129. If the purchaser rejects the title on the 
 ground that the property is incumbered, the fact that the seller had perfected 
 an arrangement to discharge the incumbrance out of the purchase-money, 
 does not support his action for damages, in the absence of anything to show 
 that the purchaser was advised of the arrangement and refused to permit 
 reasonable steps to be taken for its consummation. Manitoba Fish Co. v. 
 Booth, 109 Fed. 394 (C. C. A.). 
 
 4 Gilbert v. Cherry, 57 Ga. 129.
 
 ACTION" FOR BREACH OF CONTRACT. 19 
 
 as to the restoration of the premises to the plaintiff, or as to diffi- 
 culty in placing him in statu 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 which 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 
 
 'Daniels v. Newton, 114 Mass. 530; 19 Am. Rep. 384, disapproving Frost 
 v. Knight, L. R. 7 Excli. Ill, and Hochster v. De la Tour, 2 E. & B. 678. 
 
 2 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 Bn' i Bent. 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 " Right, Title and Interest." 12. 
 Agreement to sell subject to Liens. 13. 
 
 5. IMPLIED AGREEMENTS General Rule. The purchaser M 
 entitled to require from the vendor, in the absence of any provision 
 in the contract, a good marketable title, free from all defects or 
 incumbrances. The right to a good title does not grow out of the 
 contract between the parties, but is given by law and is implied in 
 every contract of sale.' And the rule is general that a contract for 
 
 1 Dart Vend. & Purch. (4th ed.) 104; 1 Sugd. Vend. (8th Am. ed.) 24 (16), 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. & W. 701; Hughes v. Parker, 
 8 M. & W. 244; Sharland v. Leifchild, 10 Ad. & El. 529; Flinn v. Barber, 64 Ala. 
 193; Easton v. Montgomery, 90 Cal. 314; 27 Pac. Rep. 280; Krause v. Krause, 
 58 111. App. 559; Shreck v. Pierce, 3 Clarke (Iowa), 350; Puterbaugh Y. 
 Puterbaugh, (Ind.) 34 N. E. Rep. 611; Durham v. Hadley, (Kans.) 27 Pac. 
 Eep. 105; Swan v. Drury, 22 Pick. (Mass.) 485; Dwight v. Cutler, 3 Mich. 
 566; 34 Am. Dec. 105; Murphin v. Scoville, 41 Minn. 262; Drake Y. Barton, 
 18 Minn. 414 (462) : Donlon v. Evans, 40 Minn. 501; 42 N. W. Rep. 472; New 
 Barbadoes Toll Bridge Co. v. Vreeland, 3 Green Ch. (N. J.) 157; Newark 
 Sav. Inst. v. Jones, 37 N. J. Eq. 449 ; Burwell v. Jackson, 9 'N. Y. 535, 543, a 
 much cited case; Pomeroy v. Drury, 14 Barb. (N. Y.) 418; Innesa v. Willis, 
 
 48 N. Y. Super. Ct. 192: In re Hunter, 1 Edw. (N. Y.) 1; Wheeler v. Tracy, 
 
 49 N. Y. Super. Ct. 208; Tharin v. Frickling, 2 Rich. (S. C.) 361; Breit- 
 haupt v. Thurmond. 3 Rich. (S. C.) 216; Green v. Chandler, 25 Tex. 157; Nel- 
 v. Matthews, 2 H. & M. (Va.) 164; 3 Am. Dec. 620; Moulton v. Chaffee, 22 
 Fed. Rep. 26. 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 ie the owner of the property which he assumes to sell, and that he 
 has a good title thereto. Innes v. Willis, 16 Jones & S. (N. 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
 
 IMPLIED AND EXPRESS AGREEMENTS AS TO THE TITLE. 21 
 
 the sale of lands which is silent as to the title or interest to l>e con- 
 veyed, implies an agreement to convey not only an unincumbered 
 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 
 
 An agreement to sell land which contains no restrictive expres- 
 sions is an ^agreement to sell the whole of the vendor's estate or 
 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 eujus est solum fjusest usque 
 ad coslum, 6 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 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 
 
 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 he indefeasible. 
 Aud such, the court adds, is the rule in England and in most of the Ameri- 
 can 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 l>een 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. 
 
 I Cases cited in last note. Hughes v. Parker, 8 M. & W. 244; Cattell r. Cor- 
 rall, 4 Yo. & C. 228. 
 
 * Cowley v. Watts, 17 Jur. 172; Cox v. Middleton, 2 Dru. 217. 
 
 I 1 Sudg. Vend. (8th Am. ed.) 24 (16); Bower v. Cooper, 2 Ha. 408. 
 4 Skull v. Clenister, 16 C. B. (N. S.) 81; 33 L. J. C. P. 185. 
 
 k Langford v. Selraes, 3 K. & Jo. 220; Denne v. Light, 3 Jur. (N. 8.) 627; Stan- 
 ton 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; Keyse v. Powell, 2 El. & Bl. 132; 
 Sparrow v. Oxford R. Co., 2 DeG., M. & G. 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. 
 
 7 Newark Sav. Inst. v. Jones, 37 N. J. Eq. 449. 
 Woodcock v. Bennet, 1 Cow. (N. Y.) 711; 13 Am. Dec. 568.
 
 Zli MARKETABLE TITLE TO' REAL ESTATE. 
 
 The sale of a lease implies a contract on the part of the seller 
 that he will show a good title in the landlord. 1 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 
 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. 8 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 rea- 
 sonable 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- 
 
 1 Sugd. Vend. 368; Tweed v. Mills, L. R., 1 C. P. 39; Purvis v. Rayer, 9 
 Pri. 488; Gaston v. Frankum, 2 De G. & Sm. 561; Clive v. Beaumont, 1 De G. 
 & Sm. 397; Hall v. Betty, 4 Mann. & G. 410; Souter v. Drake, 5 B. & Ad. 992; 
 Drake v. Shiels, 7 N. Y. Supp. 209; Burwell v. Jackson, 9 N. Y. 539. 
 
 1 Kintrea v. Preston, 1 H. & N. 357. 
 
 1 Thomas v. Bartow, 48 N. Y. 193. 
 
 4 Johnston v. Houghton, 19 Ind. 309. 
 
 'Keirn v. Lindley, (N. J. Eq.) 30 Atl. Rep. 1083. 
 
 Post, ch. 5, " Caveat Emptor."
 
 IMPLIED AND EXPRESS AGREEMENTS AS TO THE TITLE. 23 
 
 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 not abso- 
 lutely 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 pur- 
 chase money and a conveyance to the purchaser. 2 The contract 
 also usually specifies the kind of title the purchaser is to receive, 
 and sometimes it is in the form of a sealed obligation under pen- 
 alty on the part of the vendor to convey a good title, in which case 
 the instrument is known as a " title bond." 8 
 
 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- 
 1 ' 
 
 'Ante, 2. 
 
 l Warvelle Vend. ch. III. 
 
 3 Vardamanv. 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 
 land 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 rescission of the contract. 
 In each of these cases the rights of the purchaser are, of course, governed by 
 the express terms of the contract, and no inconvenience, 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 Warvelle Vend. 327. In Smith v. Schiele, 93 Cal. 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.
 
 24 MARKETABLE TITLE TO EEAL ESTATE. 
 
 not be compelled to accept a title resting altogether upon matters 
 in pats? such, for example, as a title by adverse possession. 8 A 
 stipulation in a contract of sale that the vendor shall furnish an 
 abstract showing title to the property has been said to be equivalent 
 to an agreement that the purchaser shall receive a good title of 
 record. 8 It has been held that an agreement to furnish a satisfac- 
 
 1 Page v. Greeley, 75 m. 400; Noyes v. Johnson, 139 Mass. 436. 
 
 Post, 292. 
 
 2 Warvelle Vend. 764. See upon this point 2 Sugd. Vend. (8th Am. ed.) 27 
 (427). In Smith v. Taylor, 82 Cal. 533, the contract contained the following pro- 
 vision: "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 con- 
 tract is that be (the vendor) was to furnish an abstract of title a paper pre- 
 pared by a skilled seacher of records, which should show an abstract of what- 
 ever appeared on the public records of the county affecting the title 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 out- 
 side the abstract, or to take the chanees of any litigation which the abstract 
 showed to be either pending or probable." In Boas v. Parrington, 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 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 prop- 
 erty 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 pur- 
 chase 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 fur- 
 nished an abstract showing it, and upon it being called to his attention, 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 asserts that it was a good one. If 
 the abstract was a good one it shows that his title was 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 posses- 
 sion. See post 292.
 
 IMPLIED AND EXPBESS AGREEMENTS AS TO THE TITLE. 25 
 
 tory abstract of title referred only to the fullness or completeness of 
 the abstract, and not to the quality of the vendor's 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, not- 
 withstanding the sufficiency of the title. 2 It has been held, how- 
 ever, that if a contract provide for an abstract showing title, and 
 the abstract furnished did not show title, it might be supplemented 
 by written evidences of title. 8 
 
 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 some- 
 times called. 4 Auction sales of real estate are, with us, usually pre- 
 ceded by a newspaper advertisement or " hand bill " containing a 
 description of the property and the terms and conditions 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.' 
 
 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 
 
 1 Fitch v. Willard. 73 111. 92. In England it is said that an agreement to fur- 
 nish a " perfect abstract " means a complete abstract, that is, the best that the 
 vendor can furnish through the title itself be defective. Dart. Vend. (5th ed.) 136, 
 citing Hobson v. Bell, 2 Beav. 17; Morley v. Cook, 2 Ha. 111. 
 
 * Smith v. Taylor, 82 Cal. 538; see extracts from this case, supra; Taylor v. 
 Williams, (Colo.) 81 Pac. Rep. 505. 
 
 Welch v. Button, 79 HI. 465. 
 
 4 Post, this chapter. 
 
 1 See King v. Knapp, 59 N. Y. 462. 
 
 Averett v. Lipscombe, 76 Va. 404, affords an illustration of this common 
 practice. 
 
 1 Averett v. Lipscombe, 76 Va. 404. 
 Post, 9.
 
 26 MAKKETABLE TITLE TO KEAL 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 intricacies 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 English 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 which the law gives a force 
 and effect different perhaps from that which was intended by the parties. Even 
 in the large cities the terms and conditions upon which real property is sold are 
 usually brief and simple. In England, however, transfers of landed property, 
 especially of the fee simple, are comparatively 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 
 called, are carefully prepared and circulated before the sale, and incorporated in 
 the contract 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 
 degree of care and precaution is exercised in the case of private sales. If the 
 vendor intends to sell only such interest as he has, be what it may, the technical 
 expression employed is, " that he shall not be required to produce a title," appar- 
 ently a figure of speech, meaning that the vendor shall not be required to fur- 
 nish an abstract, or to produce deeds, affidavits, pedigrees or other documents 
 showing a marketable title in himself. In the absence of a general registry of 
 deeds 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 are produced, and to take a title without the exhibition of such evi- 
 dences necessarily means to take just such title as the vendor has. Perhaps the 
 most important point to be considered in determining the application of English 
 decisions, in American cases, 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 the 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 AND EXPRESS AGREEMENTS AS TO THE TITLE. 27 
 
 " 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 by 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 in 
 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 \c 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. (5th ed.) 124, citing Tor- 
 ranee v. Bolton, L. R., 14 Eq. 124; 8 Ch. App. 118. 
 
 1 Rhodes v. Ibbetson, 4 De G.. M. & G. 787; Bulkley v. Hope, 1 Jur. (N. 8.) 
 864.
 
 28 MARKETABLE TITLE TO- SEAL 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 his prima 
 facie* 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 
 
 'Dart V. & P. (5th ed.) 114. In Torrance v. Bolton, L. R., 14 Eq. 130, 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 at 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, 6 Ha. 443. 
 
 Sugd. 17; Dart. V. & P. (5th ed.) 109; Rawle Cov. 32; Souter v. Drake, 5 
 B. & A. 992; Doe v. Stanion, 1 M. & W. 695; Hall v. Betty, 4 Mann. & G. 410; 
 Worthington v. Warrington, 5 C. B. 636. 
 
 4 Drysdale v. Mace, 2 Sm. & Giff. 225; Symons v. James, 1 Y. & C. (C. C.) 490; 
 Osborne v. Harvey, 7 Jur. 229; Clark v. Faux, 3 Russ. 320; Morris v. Keareley, 
 2 Y. & C. 139; Waddell v. Wolfe, L. R., 9 Q. B. 515; Blake v. Phinn, 3 C. B. 
 976; Madely 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. Whitehead, 28 Beav. 154. 
 
 8 Seaton v. Mapp, 2 Coll. 556; Forster v. Hoggart, 15 Q. B. 155; Worthington 
 v. Warrington, 5 C. B. 636; Lethbridge v. Kirkman, 2 Jur. (N. 8.) 372. 
 
 Freme v. Wright, 4 Madd. 364. 
 
 1 Groom v. Booth, 1 Dre. 548. 
 
 8 Wilmot v. Wilkinson, 6 B. & C. 506; Ashworth v. Mounsey, 9 Exch. 176. 
 
 Duke v. Barnett, 2 Coll. 337; Molloy v. Sterne, 1 Dru. & Wai. 585.
 
 IMPLIED AND EXPKESS AGREEMENTS AS TO THE TITLE. 29 
 
 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. 1 
 
 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 lias made regarding the title. 5 And 
 
 1 Keyse v. Heydon, 20 L. T. 244; Tweed v. Mills, L. R., 1 C. P. 39. 
 * Hume v. Bentley, 5 De G. & 8. 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. & S. 18. 
 
 4 In Spratt v. Jeffery, 5 Mann. & Ry. 188; 10 B. & C. 249, the agreement wai 
 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, wth- 
 out requiring the lessor's title." BAYI.EY, 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 lessor's 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 8p. 
 Perf. (3d Am. ed.) 614, where that case is said to have been overruled. In Hume v. 
 Pocock, L. R. , lEq.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 whb 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." 
 
 s Sugd. 17; Forster v. Hoggart, 15 Q. B. 155; Hume v. Bentley, 5DeG. ft 
 Sm. 520; Hoy T. Smythies, 22 Beav. 510; Nott v. Riciird, 22 Beav. 307.
 
 30 MARKETABLE TITLE TO REAL ESTATE. 
 
 if there be any reasonable doubt or misapprehension as to the mean- 
 ing of the particulars 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 
 
 Independently of any express stipulation in the particulars and 
 conditions, there may be special circumstances showing that the 
 vendor's 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, 6 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. 8 
 
 1 Dart V. & P. (5th ed.) 109; Taylor v. Martindale, 1 Y. & C. (C. C.) 661; Symons 
 v. James, Id. 490; Seaton v. Mapp, 2 Coll. C. C. 562; Nouaille v. Flight, 7 Beav. 
 521; Smith v. Ellis, 14 Jur. 682; Graves v. Wilson, 25 Beav. 290; Brumflt v. 
 Morton, 3 Jur. (N. S.) 1198; Jacksoe v. Whitehead, 28 Beav. 154; Swaisland v. 
 Dearsley, 29 Beav. 430. 
 
 'Dart V. & P. (5th ed.) 110; Dawes v.Betts, 12 Jur. 412. 
 
 *Dart V. & P. (5th ed.) 151; Richardson v. Eyton, 2 De G., M. & G. 79; 
 Godson v. Turner, 15 Beav. 46. 
 
 4 1 Sugd. Vend. 337; Burnett v. Wheeler, 7 M. & W. 364. 
 
 B 8ugd. 5, 6, 311, 312; Dart. V. & P. (5th ed.) 116, 117; Torrance v. Bolton, L. 
 R, 14 Eq. 124; 8 Ch. App. 118. See " Compensation for Defects," post, 325. 
 
 Hall v. Smith, 14 Ves. 426; Pope v. Garland, 4 Y. & C. 394; Patterson v. 
 Long, 6 Beav. 590; Lewis v. Bond, 18 Beav. 85. 
 
 1 Turner v. Beaurain, Sugd. 312; Burwell v. Brown, 1 Jac. & W. 72; Seaman 
 v. Vawdrey, 16 Ves. 390; Ramsden v. Hirst, 6 W. R.-349; Shackletonv. Sutcliffe, 
 1 DeG. &Sm. 609; Coverly v. Burrell, Sug. 27; Ballard v. Way, 1 M. & W. 
 520. 
 
 Dart V. & P. 110. Thus, when the conditions were " catching" or decep- 
 tive, and the purchaser inquired whether a good marketable title could be made, 
 and the vendor's agents refused to insert any such statement in the contract, but 
 declared that a good title could be made under the existing conditions, the
 
 IMPLIED AND EXPRESS AGREEMENTS AS TO THE TITLE. 31 
 
 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 
 
 Verbal 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; Malins 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 
 an 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. 
 
 1 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 N. & M. 28; Vandever v. Baker, 13 Pa. St. 121.
 
 32 MARKETABLE TITLE TO BEAL 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. 3 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 
 more 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. & Q. 549; Eden v. 
 Blake, 13 M. & W. 614; Greaves v. Asblin, 3 Camp. 426; Powell v. Edmunds, 12 
 East, 6. 
 
 *Sugd. 15; Dart V. & P. (5th ed.) Ill; Swaisland v. Dearsley, 29 Beav. 430. 
 The same rules apply between original purchaser and sub-purchaser. Dart, Id.; 
 Shelton v. Ldvius, 2 Cr. & J. 411. The rule stated in the text has been applied in 
 America. See Averett v. Lipscombe, 76 Va. 409. 
 
 *Higginson v. Clowes, 15 Ves. 521; Clowes v. Higgingon, 1 Ves. & B. 524; 
 Fife v. Clayton, 1 C. P. C. N. R. 352; but see Swaisland v. Dearsley, supra. 
 
 Sugd. Vend. 15. 
 
 Dart V. &P. (5th ed.) 111. 
 
 Sugd. Vend. 15; Dart V. & P. (5th ed.) 112; 15 Ves. 523; 1 Ves. & B. 524. 
 
 'Dart V. &P. (5th ed.) 120.
 
 IMPLIED AND EXPRESS AGREEMENTS AS TO THE TITLE. 33 
 
 ment tendered by the vendor, and that the contract was satis- 
 fied if the instrument was sufficient 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 
 defects of title, it would be difficult to perceive any grounds upon 
 which such decisions could be rested, since no man in his senses 
 
 1 Brown v. Covilland, 6 Cal. 566. In this case it was said that if the contract 
 had called for a good and sufficient warranty deed, instead of a good and suffi- 
 cient 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 the purchaser; 
 citing Tinny v. Ashley, infra. See, also, Green v. Covilland, 10 Cal. 332; 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. L. (N. J.) 110. In Hill v. Hobart, 16 
 Me. 164, a distinction is 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 deceptfve the title may be. See, also, Tobin T. Bell, 61 Ala. 125. 
 STKAHAN, 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 regu- 
 larly 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 construc- 
 tion 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. 
 5
 
 34 MARKETABLE TITLE TO REAL ESTATE. 
 
 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 unincumbered title, 1 especially where, as is 
 frequently the case, the contract was the work of an unskilled 
 draughtsman. 2 Accordingly the decisions mentioned have 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 open to 
 reasonable doubt. 3 Upon a like principle it has been decided that 
 
 1 Tindall v. Conover, 1 Spencer (N. J. L.), 214; 11 Am. Dec. 220, NORBIS, J., 
 saying: " Now I undertake to say that in a written contract for the sale and pur- 
 chase of lands the phrase "a good and sufficient warranty deed" will be under- 
 stood 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 sufficient 
 legal title, in reducing their contract to writing, they would not use this phrase, 
 but would define the interest bargained for." 
 
 * In our rural districts and among laymen the term "lawful deed carries no 
 other idea than an unrestricted conveyance in fee, clear of incumbrances." Eby 
 v. Eby, 5 Pa. St. 466. In the same way the term " title " is sometimes vulgarly 
 used for " deed." Thus in Gilchrist v. Buie, 1 Dev. & B. Eq. (N. C.) 857, where 
 the contract was " to make a sufficient title as far as this claim extends " the court 
 said: " The term title is evidently used for deed. * * * To make a title, there- 
 fore, did not mean to make out one, 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. 
 
 'Whitehurst v. Boyd. 8 Ala. 375; Hunter v. O'Neill, 12 Ala. 39. 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 v. White, 55 Cal. 38. (But see Brown v. Covil- 
 laud, 6 Cal. 566.) Abendroth v. Greenwood, 29 Conn. 356; Dodd v. Seymour, 
 21 Conn. 480; Shouse v. Doane, 39 Fla. 95; 21 So. 807. Frazier v. Boggs, 37 
 Fla. 307; 20 So. Rep. 245; Home v. Rodgers, 113 Ga. 224; Tyler v. 
 Young, 2 Scam. (111.) 444; 35 Am. Dec. 116; Brown v. Cannon, 5 Gilm. 
 (111.) 174; Morgan v. Smith, 11 111. 199; Conway v. Case, 22 111. 127; Lull 
 v. Stone, 37 111. 224; Thompson v. Shoemaker, 68 111. 256. Clark v. 
 Redman, 1 Bl. (Ind.) 379; Warner v. Hatfield, 4 Bl. (Ind.) 392; Parker v. 
 McAllister, 14 Ind. 12. Fitch v. Casey, 2 Green (Io.). 300; Shreck v. 
 Pierce. 3 Cl. (Io.) 360. In this case the court pertinently observed: "The 
 legal effect of contracts to make title, or to deliver a deed to land under 
 a contract of purchase, is generally that the vendor shall make a 
 good title. As a general rule it makes but little difference what the precise 
 terms of the contract are whether the vendor agrees to make title, or a
 
 IMPLIED AND EXPRESS AGREEMENTS AS TO THE TITLE. 35 
 
 a conveyance with covenants for title is not a sufficient perform- 
 ance of a contract of sale if the title be defective, the covenants 
 being no such valuable consideration for the purchase money as to 
 deprive the purchaser of the right to detain the purchase money in 
 
 good title or to make a deed, or a warranty deed if it appears that he is nego- 
 tiating to sell at a sound price, to be paid or part paid at the conveyance. In 
 such cases, usually the vendor, without a nice examination of words, is under- 
 stood to agree for a good title, and the vendee cannot be put off with merely a 
 good deed. This rule, however, does not preclude those cases where the vendee 
 appears to be purchasing the vendor's title, such as it may be." Bodley v. 
 McChord, 4 J. J. Marsh. (Ky.)475; Williams v. Potts, 1 J. J. Marsh. (Ky.) 596; 
 Brown v. Starke, 3 Dana (Ky.), 318. Porter v. Noyes, 2 Gr. (Me.) 22; 11 Am. 
 Dec. 30; Brown v. Gammen, 14 Me. 276; Sibley v. Spring, 12 Me. 460; 28 Am. 
 Dec. 191, the court saying that an agreement to sell and convey is not performed 
 by tender of a sufficient deed in form if there is an incumbrance on the land. 
 Swan v. Drury, 22 Pick. (Mass.) 488; Mead v. Fox, 6 Cush. (Mass.) 202; Rob- 
 erts v. Bassett, 105 Mass. 409; Linton v. Allen, (Mass.) 17 N. E. Rep. 523. 
 Dwight v. Cutler, 3 Mich. 575; 64 Am. Dec. 105. Cogan v. Cook, 22 Minn. 137; 
 Murphin v. Scoville, 41 Minn. 262. Wiggins v. McGimpsey, 13 Sm. & M. (Miss.) 
 532; Feemster v. May, 13 Sm. & M. (Miss.) 275; 53 Am. Dec. 83; Mobley v. Keys, 
 13 Sm. & M. (Miss.) 677; Greenwood v. Ligon. 10 Sm. & M. (Miss.) 615; 48 Am. 
 Dec. 775. Luckett v. Williamson, 31 Mo. 54 and 37 Mo. 395. Beech v. Steele, 12 
 N. H. 88, dictum; Little v. Paddleford, 13 N. H. 167; Critchett v. Cooper, 
 (N. H.) 18 Atl. Rep. 778. Tindall v. Conover, 1 Zab. (N. J. L.) 654. In Tin- 
 dall v. Conover, 1 Spencer (N. J. L.), 214; 11 Am. Dec. 220, it was said that the 
 question what was meant by an agreement to deliver a good and sufficient deed 
 with covenants of warranty was to be determined by the terms of the contract 
 and by all the surrounding circumstances. Johnson v. Smock, 1 N. J. L. 106; 
 Young v. Paul, 10 N. J. Eq. 401; 64 Am. Dec. 456; Lounsbery v. Locander, 25 
 N. J. Eq. 557. Gilchrist v. Buie, 1 Dev. & B. Eq. (N. C.) 347, dictum; Lee v. 
 Foard, 1 Jones Eq. (N. C.) 127, tumble. Pugh v. Chasseldine, 11 Ohio, 109; 37 
 Am. Dec. 414. Thompson v. Hawley, 14 Oreg. 199; Collins v. Delashmutt, 6Oreg. 
 51; Sanford v. Wheeler, 12 Oreg. 301. Dearth v. Williamson, 2 S. & R. (Pa.) 498; 
 7 Am. Dec. 652, the court saying: " A lawful deed of conveyance may be fairly 
 understood a deed conveying a lawful or good title. Romig v. Romig, 2 Rawle 
 (Pa.), 249; Colwell v. Hamilton, 10 Watts (Pa.), 413; Eby v. Eby, 5 Pa. St. 466; 
 Wilson v. Getty, 57 Pa. St. 270. Cunningham v. Sharp, 11 Humph. (Tenn.) 120. 
 Clute v. Robinson, 2 Johns. (N. Y.) 595, a leading case; Jones v. Gardner, 10 
 Johns. (N. Y.) 266; Judson v. Wass, 11 Johns. (N. Y.) 528; 6 Am. Dec. 392; 
 Tucker v. Woods, 12 Johns. (N. Y.) 190; 7 Am. Dec. 305; Van Epps v. Schenec- 
 tady, 12 Johns. (N. Y.)442; 7 Am. Dec. 330; Gastry v. Perrin, 16 Johns. (N. Y.) 
 267; Robb v. Montgomery, 20 Johns. (N. Y.) 15; Carpenter v. Bailey, 17 Wend. 
 (N. Y.) 244; Traver v. Halstead, 23 Wend. (N. Y.) 66, the court saying: " It was 
 tho title to the premises which the purchaser stipulated for, not a piece of parch-
 
 36 MARKETABLE TITLE TO KEAL ESTATE. 
 
 case of eviction by an adverse claimant. 1 An agreement to make 
 a " clear deed," when the purchaser knows that the vendor has only 
 a life estate, is fully performed by delivery of a deed conveying 
 such an estate as the vendor has. 2 
 
 11. Agreements to convey by " quit claim." It sometimes 
 happens that the purchaser proposes to buy, and the vendor pro- 
 
 ment, good in form but waste paper in effect for the purpose of transferring title." 
 Lawrence v. Taylor, 5 Hill (N. Y.), 107; Everson v. Kirtland, 4 Paige Ch. (N. Y.) 
 638; 27 Am. Dec. 91; McCool v. Jacobus, 7 Rob. (N. Y.) 115; Pomeroy v. Drury, 
 14 Barb. (N. Y.) 424; Hill v. Ressegien, 17 Barb. (N. Y.) 164; Atkins v. Bahrett, 
 19 Barb. (N. Y.)639; Morange v. Morris, 34 Barb. (N. Y.) 211; Penfield v. Clark, 
 62 Barb. (N. Y.) 584; Fletcher v. Button, 4 Comst. (N. Y.) 400; Story v. Conger, 
 36 N. Y. 673; 93 Am. Dec. 546; Burwell v. Jackson, 9 N. Y. 536. Pattersou 
 v. Goodrich, 3 Tex. 331; Vardeman v. Lawson, 17 Tex. 16; Phillips v. Hern- 
 don, 78 Tex. 378; Jones v. Phillips, 59 Tex. 610; Jones v. Huff, 36 Tex. 678. 
 Stow v. Stevens, 7 Vt. 27; 29 Am. Dec. 139, the court saying that it would be 
 trifling with the good sense of the law to hold that a good and sufficient deed 
 means only a deed to convey what title the grantor had. Lawrence v. Dole, 11 Vt. 
 549. In Joslyn v. Taylor, 33 Vt. 470, and Preston v. Whitcomb, 11 Vt. 47, it 
 was held, however, that an agreement " to give a good and sufficient warrantee 
 deed " referred only to the kind of deed to be executed, and not to the quality 
 of the title. It is difficult to perceive how such an inference can be drawn from 
 the language of the contract, unsupported by evidence aliunde of the intention of 
 the parties. In most of the States no distinction seems to have been made between 
 an agreement for a ' ' good and sufficient deed " and a ' ' good and sufficient war- 
 ranty deed." Goddin v. Vaughn, 14 Grat. (Va.) 117; Christian v. Cabell, 22 
 Grat. (Va.) 82. Newberry v. French, 98 Va. 471; 36 S. E. 519. Young v. 
 Wright, 14 Wis. 144; 65 Am. Dec. 303; Falkner v. Guild, 10 Wis. 506; 
 Bateman v. Johnson, 10 Wis. 1 ; Davidson v. Van Pelt, 15 Wis. 341 ; Taft v. 
 Kessel, 16 Wis. 273; Davis v. Henderson, 17 Wis. 106. Moody v. Spokane, 
 etc., R. Co. 5 Wash. 699. If the rule established by the foregoing casea 
 were not the correct one the vendor, after the execution of the contract, 
 might convey away the land to another, and yet, by delivering to the pur- 
 chaser a deed good and sufficient in form, escape the consequences of a breach 
 of the contract. Lull v. Stone, 37 111. 224. A contract to make a " lawful 
 deed of conveyance " means a deed conveying a lawful or good title. Wilson 
 v. Getty, 57 Pa. St. 266. A deed conveying " all the right, title and interest " 
 of the vendor is not a compliance with a contract to execute to the purchaser 
 " a good and sufficient deed of bargain and sale, free and clear of all incum- 
 brances, " if the property is incumbered. Rogers v. Borchard, 82 Cal. 347. 
 If the purchaser contract for " a deed conveying a clear title " he may reject 
 a warranty deed if there is an incumbrance on the premises. Roberts v. 
 
 Bassett, 105 Mass. 409. 
 *Knapp v. Lee, 3 Pick. (Mass.) 459, disapproving Lloyd v. Jewell, 1 Greenl. 
 
 (Me.) 352; 10 Am. Dec. 73. 
 *Rohr v. Kindt, 3 Watts & S. (Pa.) 563; 39 Am. Dec. 53.
 
 IMPLIED AND EXPRESS AGREEMENTS AS TO THE TITLE. 37 
 
 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. 1 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 expressions, 
 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. 2 It seems that the pur- 
 chaser's consent to take a defective title does not necessarily deprive 
 him of the right to require a conveyance with covenants 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 
 Tender's covenants, the agreement of the parties should be particu- 
 larly mentioned. 3 
 
 As an agreement to make a " good and sufficient deed" relates not 
 
 1 Holland v. Rogers, 38 Ark. 251. Fitch v. Willard, 73 111. 92. Vail v. Nelson, 
 4 Rand. (Va.) 124; Button v. Sutton, 7 Grat. (Va.) 204; 56 Am. Dec. 109; Bailey 
 T. James, 11 Grat. (Va.) 468; 62 Am. Dec. 659. Boyles v. Bee, 18 W. Va. 520. 
 McManus v. Blackmar, 47 Minn. 331. 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 conclusive 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. Boote, 
 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 purchaser will 
 get none, is without remedy if the title fails. Such an announcement 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 X. Car. 478. 
 
 1 Sugd. Vend. (8th Am. ed.) 510, 511 (337); Rawle Cov. (5th ed.) 32. 
 
 S 2 Sugd. Vend. (8th Am. ed.) 230 (678).
 
 38 MARKETABLE TITLE TO REAL ESTATE. 
 
 merely to the form of the deed, but to the sufficiency of the title, 1 
 so neither is an agreement to convey " by quit-claim deed," a stipu- 
 lation merely as to the form of the deed ; it is a condition which 
 requires the purchaser to take just such title as the vendor has. 2 
 
 12. Agreement to sell right, title and interest. An agree- 
 ment to sell all of the vendor's right, title and interest in the prem- 
 ises, 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. 8 
 
 It has been held, however, that a vender 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 nudum pactum, 
 and the purchaser might rescind. 4 Whether he might affirm the 
 agreement and have damages for a breach of the contract 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. 5 
 
 i i 
 
 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 incumbrance, 
 but as between himself and the vendor, he makes tho debt his own, 
 and assumes to protect the vendor. 6 It has been held, however, 
 that a mere agreement to take " subject to " an incumbrance, does 
 not bind the purchaser to discharge the incumbrance. 7 
 
 1 Ante, p. 33. 
 
 s McManus v. Blackmar. 47 Minn. 331. 
 
 'Tweed v. Mills, L. R., 1 C. P. 39; Johnston v. Mendenhall. 9 W. Va. 112; 
 Babcock v. Wilson, 17 Me. 372; 35 Am. Dec. 263; Herrod v. Blackburn, 56 Pa. 
 St. 103; 94 Am. Dec. 49. 
 
 4 Johnson v. Tool, 1 Dana (Ky.) ( 479; 25 Am. Dec. 162. 
 
 5 Lull v. Stone, 37 111. 155. 
 
 See upon this subject Sheld. Subrogation (2d ed.) 85; Taylor v. Preston, 79 
 Pa. St. 436; Burke v. Gummey, 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. Hemraingway, 18 Hun (N. Y.), 458; Kruger 
 T. Adams, 13 Neb. 100. 
 
 1 Lewis v. Day, 53 Iowa, 575, and cases cited.
 
 IMPLIED AND EXPRESS AGREEMENTS AS TO THE TITLE. 39 
 
 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. 1 
 
 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. 2 The gen- 
 eral rule, however, is that the purchaser must apply the unpaid pur- 
 chase money to the satisfaction of valid incumbrances.* 
 
 When the purchaser binds himself to pay rent if the title fails, 
 he cannot, on failure of the title, recover damages from the 
 vendor. 4 
 
 * Kohner v. Higgins, 42 N. Y. Super. Ct. 4 ; Mellon r. Webster, 5 Mo. App. 
 449. 
 
 1 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. 
 
 *See post, 245. 
 
 4 Cross v. Freeman, 22 Tex. Civ. App. 209; 54 S. W. 246.
 
 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. 
 Word* of conveyance. 19. 
 Description of the premises. 20. 
 Description of estate or interest conveyed. 21. 
 Signature and seal. 22. 
 Attestation or acknowledgment. 23. 
 
 (a) Venue of the certificate. % 24. 
 
 (ft) Name and official designation of certifying officer. 25. 
 
 (c) Name of grantor. 26. 
 
 (d) Annexation of deed. 27. 
 
 () Jurisdiction of certifying officer. 28. 
 
 (/) Personal acquaintance with grantor. 29. 
 
 (g) Fact of acknowledgment. 80. 
 
 (A) Privy examination of wife. 81. 
 
 () Explanation of content* of deed. 32. 
 
 (fc) Voluntary act of wife. 33. 
 
 (0 Wish not to retract. 34. 
 
 (m) Reference to seal. 35. 
 
 (n) Date of certificate. % 36. 
 
 (o) Signature of officer. 37. 
 
 (p} Abbreviation of official designation. % 38. 
 
 (g) Seal of officer. 39. 
 
 (r) Surplusage and clerical mistakes. % 40. 
 
 (*) Amendment of certificate. % 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 insist that there has been a breach of the contract, 
 either (1) Because the conveyance and its covenants are not such as 
 he is entitled to demand ; or, (2) 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
 
 SUFFICIENCY OF CONVEYANCE TENDERED BY THE VENDOR. 41 
 
 speaking, a defect in the vendor's title. But inasmuch as the pur- 
 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 musfy 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. 8 
 
 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. 8 
 
 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. 
 
 1 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. 
 
 Ante, 10. 
 
 4 Hoffman v. Fett, 39 Cal. 109; Smith v. Haynes, 9 Greenl. (Me.) 128; Dart 
 V. & P. (5th ed.) 130. And, e converse, an agreement to "execute and deliver a 
 deed " is an agreement to sell the land. Martin v. Colby, 42 Hun (N. Y.), 1. 
 
 Tapp v. Beverley, 1 Leigh (Va.), 80; Botto v. Berges, 47 La. Ann. 959; 17 So. 
 Rep. 428. 
 
 Post, 67, 68. 
 
 Rawle Cov. for Title (5th ed.), 320; post, chap. 27. 
 
 Papin v. Goodrich, 103 111. 86. 
 6
 
 42 MARKETABLE TITLE TO BEAL ESTATE. 
 
 15. ESSENTIAL REQUISITES 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, that 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 been 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 want of a signature to the deed under which he holds 
 would, beyond 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 be 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 trifling 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, chap. 31.
 
 SUFFICIENCY OF CONVEYANCE TENDERED BY THE VENDOE. 43 
 
 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. 
 
 16. 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. Slusher, 15 Ind. 166; Rush v. Truby, 11 Ind. 462. 
 1 Fitzpatrick v. Fitzpatrick, 6 R. I. 64; 75 Am. Dec. 681. 
 3 Washb. Real Prop. 368 (618). 
 
 4 Id. 
 
 5 In 2 Bouvier's Inst. 389, it is said that an instrument written or printed on 
 " wood, linen, bark, stone, or the like," would be invalid as a deed. 
 
 'Such a signature has been held a sufficient compliance with the Statute of 
 Frauds. Browne Stat. Frauds, 356 (4th ed.), p. 441; Devlin on Deeds, 185,
 
 44 MARKETABLE TITLE TO KEAL ESTATE. 
 
 with a lead pencil would be held valid. 1 But it may be doubted 
 whether a purchaser might not lawfully refuse to accept a deed so 
 written, and insist upon one prepared in the usual manner. 
 
 A contract to convey by good and sufficient deed obliges the 
 vendor to tender a deed so drawn and executed as to leave no 
 reasonable doubt of its legal sufficiency to convey the land. It 
 must be free from all such interlineations and erasures as are 
 reasonably calculated to throw doubt upon the paper as a valid 
 conveyance. 2 
 
 17. Date. Regularly, a deed should be dated, but the fact that 
 it has no date, or has an impossible date, will not render it void. 
 The true date may be shown. 3 A deed being an executed contract, 
 it is immaterial that it bears date on a Sunday ; the parties being 
 in pari deliclo. the courts will not interfere to declare the instru- 
 ment void, as it sometimes does where the contract is executory. 4 
 The date may be inserted either at the beginning of the deed, or at 
 the close, in the testimonium clause; that in the testimonium clause 
 is to be treated as the true date, if it be later than the one expressed 
 at the beginning of the deed. 5 Inasmuch as it is usual and cus- 
 tomary to insert a date in conveyances of real estate, and the want 
 of it may be easily supplied, the purchaser should require that the 
 instrument tendered shall be complete in this particular. 
 
 18. Parties to the conveyance. It seems unnecessary to say 
 that every deed must contain the names or description of parties 
 grantor and grantee. 6 Yet instances exist in which instruments, 
 from which the name of the grantee, through carelessness or inatten- 
 
 and cases there cited. But where a statute required the memorandum to be 
 " subscribed " by the party to be bound, it was held that a printed signature 
 was insufficient. Vielle v. Osgood, 8 Barb. (N. Y.) 130; Davis v. Shields, 2 
 Wend. (N. Y.) 351. 
 
 1 Contracts for the sale of land written in lead pencil are valid. Clason Y. 
 Bailey, 14 Johns. (N. Y.) 484. So also, a will or codicil to a will. Raymes r. 
 Clarkson, 1 Phillim. 22. 
 
 'Shouse v. Doane, 39 Fla. 95; 21 So. 807. 
 
 8 Jackson v. Schoonmaker, 2 Johns. (N. Y.) 230. The date is no part of the 
 substance of a deed, and not necessary to be inserted. The real date of a deed 
 is the time of its delivery. Thompson v. Thompson, 9 Ind. 323: 68 Am. Dec. 
 638. It is no objection to a deed that it bears date prior lo the vendor's 
 acquisition of title. Bledsoe v. Doe, 4 How. (Miss.) 13. 
 
 * See cases cited 24 Am. & Eng. Encyc. of L. 555. 
 Kurtz v. Hollingshed, 4 Cranch C. C. (U. S.) 180. 
 
 Chase v. Palmer, 29 111. 306 ; Whittaker v. Miller, 83 111. 381. In both the*e 
 cases the deed had been executed in blank, and the name of a grantee after- 
 wards inserted by a third person. Garnett v. Garnett, 7 T. B. Mon. (Ky.) 545.
 
 SUFFICIENCY OF CONVEYANCE TENDERED BY THE VENDOR. 45 
 
 tiop, has been omitted, have been tendered to and accepted by the 
 purchaser. The parties should be correctly described by their Chris- 
 tian names as well as surnames. And while an incorrect or imperfect 
 description of the grantee does not destroy the validity of a deed 
 as a muniment of title, there can scarcely be any doubt that a pur- 
 chaser would not be required to accept such a conveyance. 1 There 
 must not only be a grantee in every deed, but such grantee must 
 be a person or corporation who can take and hold the premises. 
 Deeds have sometimes been held void because of uncertainty or 
 vagueness in the description of the grantee. 3 Thus, a grant to the 
 people of a county is void for uncertainty. 3 But it is not necessary 
 that a grant to a person shall describe him by name, if he be other- 
 wise so described that he may be identified. 4 Hence, a grant to the 
 " children of A." is valid. 5 So, also, a deed " to the heirs at law of 
 a deceased person." 6 But a deed to " A. and his heirs," A. being 
 dead at the time of the grant, is void. In such a case, the words 
 " his heirs " are words of limitation and not words of purchase. 7 
 The grantee, unless such by way of remainder, must, of course, be 
 in existence at the time of the grant. 8 It has been held that a con- 
 veyance to a fictitious person is void. 9 It is not absolutely indis- 
 pensable that the name of the grantee shall be set forth in the grant- 
 ing clause of the deed ; if his name appear in the habendum, it will 
 suffice. 10 Nor will a deed be avoided by the fact that the grantor's 
 
 1 Thus, in Peabody v. Brown, 10 Gray (Mass.) , 45, a deed to "Hiram Gowing" 
 was held valid as a conveyance to "Hiram G. Gowing," though there was such 
 a person as " Hiram Gowing," he being the son of the person intended as grantee. 
 And many cases may be found in which incorrect, uncertain and doubful 
 descriptions of the grantee have been aided by parol evidence, and the descrip- 
 tion held sufficient, according to the maxim id cerium est quod reddi potest. 
 But obviously this doctrine has no application to a case in which the purchaser 
 stands insisting that the vendor shall tender a deed free from misdescription. 
 
 2 Jackson v. Cory, 8 Johns. (N. Y.) 385. So, also, a deed to the " estate " of 
 a certain person deceased. Mclnerny v. Beck, 10 Wash. 515; 39 Pac. Rep. 130. 
 
 Jackson v. Cory, 8 Johns. (N. Y.) 385; Hornbeck v. Westbrook, 9 Johns. 
 (N. Y.) 73. 
 
 4 1 Devlin on Deeds, 184. 
 
 Hogg v. Odom, Dudley, (Ga.) 185. 
 
 4 Shaw v. Loud, 12 Mass. 447. 
 
 7 Hunter v. Watson, 12 Cal. 363; 73 Am. Dec. 543. 
 
 Newsom v. Thompson, 2 Ired. (N. C.) L. 277; Lillard v. Ruckere, 6 Yerg. 
 i Trim.) 64. 
 
 Muskingum Val. Turnpike v. Ward, 13 Ohio, 120. But see Thoraaa Y. 
 Wyatt, 31 Mo. 188; 77 Am. Dec. 640. 
 
 "Berry v. Billings, 44 Me. 416; 69 Am. Dec. 107.
 
 46 MARKETABLE TITLE TO' REAL ESTATE. 
 
 name does not appear in the granting clause, if it can be supplied 
 from the rest of the instrument. 1 The full names of the parties 
 should be correctly set forth in the conveyance. But the omission 
 of a middle name will not invalidate the deed. 2 2s"or will a differ- 
 ence in the spelling of the name of the grantor, as recited in the 
 deed and as signed thereto, be material, if it can be shown that they 
 are one and the same person, 3 and it has been held that a convey- 
 ance to a person by a wrong baptismal or Christian name is not for 
 that reason void. 4 But, of course, a purchaser should reject a deed 
 containing such an irregularity. The burden of removing or explain- 
 ing apparent or seeming defects should not be imposed upon him. 
 
 Where the purchaser is a partnership, the conveyance must be 
 made to the individual partners jointly as tenants in common, and 
 the partnership may reject a deed in which the grantee is the firm 
 itself, e, g., a deed to A. B. & Co. 5 A conveyance to A. B. & Co. 
 passes the legal title to A. B. alone. 6 A deed made by "A. B., 
 Executor," without specifying the estate of the testator, and signed 
 by the executor in the same way, is sufficient as a deed executed by 
 him in a representative and not in his individual capacity. 7 
 
 The purchaser is also entitled to require a conveyance from 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 signed only by 
 one of the vendors, and the purchaser may reject such a conveyance. 
 He has a right to have the warranties of all those with whom he 
 
 1 Mards v. Meyers, (Tex.) 28 S. W. Rep. 693. 
 
 "McDonald v. Morgan, 27 Tex. 503; James v. Stiles, 14 Pet. (U. S.) 322, 
 A variance in the middle initial letter of the name of the grantor, as written 
 in the signature and in the body of the deed, will not avoid the deed. 
 Erskine v. Davis, 25 111. 251. 
 
 8 Lyon v. Karn, 36 111. 362; Tustin v. Faught, 23 Cal. 237; Middleton v. 
 Findla, 25 Cal. 76. 
 
 4 Stark v. Sigelow, 12 Wis. 234. 
 
 5 1 Washb. Real Prop. (3d ed.) 573; McMurray v. Fletcher, 24 Kans. 574. 
 
 Arthur v. Weston, 22 Mo. 378; Beauman v. Whitney, 20 Me. 413. 
 
 'Bobeock v. Collins, (Minn.) 61 N. W. Rep. 1020. 
 
 Walter v. De Graaf, 19 Abb. N. C. (N. Y.) 406. In this case the apparent 
 owner contracted to give a warranty deed with full covenants. The convey- 
 ance under which the apparent owner held was absolute in form, but in fact 
 a mortgage. He reconveyed to the mortgagor, and a warranty deed from the 
 latter was tendered to the purchaser. It was held that the purchaser was 
 entitled to the benefit of the covenants of the apparent owner, and that the 
 deed tendered was insufficient.
 
 SUFFICIENCY OF CONVEYANCE TENDEBED BY THE VENDOB. 47 
 
 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 
 Avould 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 con- 
 veyance 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 cove- 
 nants 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. 4 Such a deed, however, not being 
 within the terms of the contract of sale, the burden devolves on 
 the vendor to show that the purchaser accepted the same in full 
 performance of the agreement. 5 
 
 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 
 vice 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 
 
 'Lawrence v. Parker, 1 Mass. 191; 2 Am. Dec. 10; Clark v. Redman, 1 
 Blackf. (Ind.) 379. 
 
 2 13a.teman v. Johnson, 10 Wia. 1. 
 
 3 Steiner v. Zwickey, 41 Minn. 448; 43 N. W. Rep. 376; Crabtree v. Levinga, 
 53 111. 526; Yates 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 N. 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. 
 
 4 Bigler v. Morgan, 77 N. Y. 312; Robb v. Montgomery, 20 Johns. (N. Y.) 
 15. 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. Bonsinger r. 
 Erhardt, 77 N. Y. Supp. 577; 74 App. Div. 1(10. 
 
 Slocum v. Bray, S3 Minn. 240: '0 N. W. Rep. 826.
 
 48 MARKETABLE TITLE TO REAL ESTATE. 
 
 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 insuffi- 
 cient that the deed be signed by the party in the capacity in which 
 he acts. 1 
 
 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. 2 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 act of the principal. 
 It is deemed unnecessary to discuss this question here, or to refer 
 to the decisions either way upon the points. 3 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, pub- 
 lic 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. 4 Particular attention should be paid to conveyances of 
 
 1 Bobb v. Barnum, 59 Mo. 394. 
 
 2 Sudg. Vend. (8th Am. ed.) 214 (563). 
 
 3 The cases will be found collected in 1 Devlin on Deeds, 377, et seq. 
 
 4 A power of attorney to convey land must be under seal. Plummer v. Rus- 
 sell, 2 Bibb (Ky.), 174. A misrecital of a valid power of attorney in a deed, exe- 
 cuted 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
 
 SUFFICIENCY OF CONVEYANCE TENDERED BY THE VENDOE. 49 
 
 corporate property, and all statutory or charter provisions as to the 
 authority of the officers to convey, and as to the mode of convey- 
 ance, 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. 1 
 
 If the purchaser be entitled, under the contract, to call for a con- 
 veyance of a clear and un in cumbered title, he may reject a convey- 
 ance which doos not contain a relinquishment of any contingent 
 right of dower existing in the premises. 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 others the 
 common-law rule that the word " heirs " is necessary in the creation 
 
 respects. Qimell 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 
 roid. Ingram v. Little, 14 Ga. 173; 58 Am. Dec. 549. If the deed is made in 
 pursuance of a judicial sale, the purchaser should see that the sale has been con- 
 firmed. Fraser v. Prather, 1 McArth. (D. C.) 206; 2 Dan. Ch. Pr. 1454. A com- 
 missioner acting under a decree of court can convey no more than he is author- 
 ized by the decree to convey. Neel 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. 
 
 1 Story on Partnership, 120. 
 
 5 Polk v. Sumter, 2 Strobh. L. (S. Car.) 81; Jones v. Gardner, 10 Johna. (N. 
 T.)26. 
 
 1 Washb. Real Prop. m. p. 56 (3d ed.) 671. 
 
 7
 
 50 MAKKETABLE TITLE TO REAL ESTATE. 
 
 of an estate of inheritance still exists. Wherever thig is the case, 
 the purchaser should see that these precise 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 never operate as a deed, 1 
 and yet instruments amounting to nothing more than executory con- 
 tracts for the sale of lands have been tendered and accepted as con- 
 veyances by persons acting without competent advice. An instru- 
 ment in which the only words of grant are " sell " or " sign over," * 
 cannot take effect as a deed. No estate can pass by deed unless it 
 is plainly embraced within the words of grant. 8 But a deed with- 
 out 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. 4 
 
 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. 6 
 We need not inquire here whether parol evidence will be received 
 in aid of an unintelligible description. The purchaser may avoid 
 
 1 Brown v. Manter, 21 N. H. 528; 53 Am. Dec. 223. An instrument under 
 seal'acknowledging receipt of the consideration for the sale of real estate, but 
 containing no words of conveyance, passes no title. Pierson v. Doe, 2 Ind. 123. 
 
 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. Yarn, 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. Pierson v. Armstrong, 1 
 Iowa, 282; 63 Am. Dec. 440. 
 
 1 Ryan v. Wilson, 9 Mich. 262. 
 
 4 Bridge v. Wellington, 1 Mass. 219. 
 
 1 Devlin on Deeds, 1012. Where a purchaser takes possession of a rectangu- 
 lar 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 out- 
 standing interest in the grantor or his heirs. Ray v. Pease, (Ga.) 22 S. E. 
 Rep. 190.
 
 SUFFICIENCY OF CONVEYANCE TENDERED BY THE VENDOR. 51 
 
 trouble of that kind by insisting upon a full and accurate description 
 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, town- 
 ship, section and quarter section of which it forms a part, 1 where 
 those subdivisions 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, courses and dis- 
 tances, 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 
 can be located and identified. A description as the " S. of the 
 N. E. ^ of S. E. " of a section was held fatally bad, there being 
 no such thing as the " southeast half " of a section, though of course 
 there might be a southeast quarter. 2 A description of the land con- 
 veyed as " ten acres, more or less," of a certain other piece of land, 
 without showing how the ten acres are to be cut off, makes the deed 
 void for uncertainty. 3 Land described in a deed must be suscepti- 
 ble 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. 4 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. 5 But if the descrip- 
 tion of the estate include several particulars, all of which are neces- 
 sary 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 
 
 1 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. 
 
 Pry v. Pry, 109 111. 466. 
 
 Wilkinson v. Roper, 74 Ala. 140. 
 
 'Wilson v. Inloes, 6 Gill (Md.), 121. 
 
 Vose v. Bradstreet, 27 Me. 166; Bell v. Woodward, 46 N. H. 315. 
 
 Worthington v. Hylyer, 4 Mass. 196, per PARSONS, C. J.
 
 52 
 
 MARKETABLE TITLE TO REAL ESTATE. 
 
 grantee will be taken. 1 If there be any doubt about what property 
 a deed conveys, it must be construed most strongly against the 
 grantor. 2 A deed which contains no other description of the 
 premises than a reference to another deed containing a full descrip- 
 tion is sufficient. 3 And an uncertain description may be cured by 
 a reference in the deed to other conveyances. 4 A general descrip- 
 tion in a deed will govern where the particular description by metes 
 and bounds as given is uncertain or impossible. 5 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.' 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. 7 
 
 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 descrip- 
 tion of the premises tends to render his title unmarketable and 
 objectionable to future purchasers ; and, secondly, because a con- 
 veyance, though admitted to record, is not notice to subsequent 
 purchasers, unless the granted premises be therein so plainly and 
 clearly described that a person reading the deed may locate and 
 identify the property therefrom. 8 
 
 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 con- 
 veyance of the " assets " of a bank would not pass real property belong- 
 ing to the bank but not specifically described in the conveyance. 9 
 
 1 Vance v. Fore, 24 Cal. 435. 
 
 * Black v. Grant, 50 Me. 364. 
 
 3 Glover v. Shields, 32 Barb. (N. Y.) 374; Phelps v. Phelps, 17 Md. 120; John- 
 ston v. Scott, 11 Mich. 232. 
 
 4 Bowman v. Wettig, 39 111. 416. 
 
 * Sawyer v. Kendall, 10 Cush. (Mass.) 241. 
 
 Mclver v. Walker, 9 Cranch (U. S.), 173; Strickland v. Draughan, 88 N. C. 315. 
 ' Banks v. Ammon, 27 Pa. St. 172. 
 8 Banks v. Ammon, 27 Pa. St. 172. 
 
 * Wilson v. Johnson, (lud.) 38 N. E. Rep. 38.
 
 SUFFICIENCY OF CONVEYANCE TENDERED BY THE VENDOR. 53 
 
 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 
 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 
 rule, 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 additition 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 interest 
 which he is to receive is not therein specifically described. He 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 conveyance 
 " 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.* 
 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 alien- 
 ation of just such interest in the premises as the grantor actually 
 had. 5 Thus, a deed by a joint tenant, or tenant in common, pur-^ 
 porting to convey the whole estate, is not, for that reason, void, but 
 
 'Post, "Estoppel," 218. But a conveyance of a "right, title and interest" 
 will not be construed to be a mere quit claim, if an intent to convey an estate of 
 a particular description appear. United States v. Cal. & Oreg. Land Co., 49 Fed. 
 Rep. 496; 1 G. C. A. 330. 
 
 Dennison v. Ely, 1 Barb. (N. Y.) 810. 
 
 *1 Shep. Touch. 85, ante, 5; Stockett v. Goodman. 47 Md. 54. 
 
 *Brantley v. Kee, 5 Jones Eq. (N. C.) 332; Barton v. Morris, 15 Ohio, 408. 
 
 3 Bl. Com. 171; Wisely v. Findlay. 3 Rand. (Va.) 361.
 
 54 MARKETABLE TITLE TO REAL ESTATE. 
 
 passes the individual interest of the grantor. 1 The quantity of 
 estate or interest intended to be conveyed was expressed usually in 
 that part of the common-law deed or feoffment known as the hdben- 
 dum thus, " to have and to hold to him the said A. and his 
 heirs forever," etc., " to have and to hold for and during the term of 
 his natural life," etc. This clause is still sometimes found in modern 
 deeds, but in most of the States has fallen into disuse. 2 When 
 employed it may be looked to for the purpose of determining the 
 true construction of the deed, with this limitation, however, that if 
 it be inconsistent with or repugnant to the granting clause of the 
 deed, the latter shall prevail. 3 
 
 22. Signing and sealing. We have already seen that a deed 
 without a signature might be valid at common law, the authenticity 
 of the instrument being established by the seal of the grantor. 4 But 
 now by statute, in most of the American States, the signature of the 
 grantor is an indispensable part of a deed. And even in those States 
 in which there has been no statutory change of the common law, it 
 is apprehended that no purchaser would be compelled to accept a 
 conveyance not signed by the grantor, so strongly has use and cus- 
 tom impressed upon the masses the necessity of that act. The pur- 
 chaser is entitled to a conveyance authenticated in such a manner as 
 not to excite distrust and doubt in the minds of those to whom he 
 desires to sell. In some of the States sealing remains, as at common 
 law, an indispensable formality in the execution of a deed. Origi- 
 nally a seal consisted of an impression upon wax or some similar 
 material, adhering to the surface of the paper or parchment, or an 
 impression upon a waxen disc attached to the paper by ribbons or 
 strings. But now, in perhaps every State of the Union, a direct 
 impression upon the paper itself, or a simple scroll, is by statute 
 . made sufficient as a seal. 5 And the public have become so accus- 
 tomed to their use that the ancient mode of sealing, if resorted to 
 
 1 White v. Sayre, 2 Ohio, 110. 
 
 3 Washb. Real Prop. 466 (642). 
 
 Flagg v. Eames, 40 Vt. 23; 94 Am. Dec. 363; Mayor v. Bulkley, 51 Mo. 227; 
 4 Kent Com. 468. 
 
 4 Shep. Touchstone (Preston's ed.), 56; 3 Washb. Real Prop. 270; Jeffery T. 
 Underwood, 1 Ark. 108. 
 
 * See, generally, upon the subject of seals, 3 Washb. Real. Prop. 271; 1 Devlin 
 on Deeds, 242.
 
 SUFFICIENCY OF CONVEYANCE TENDERED BY THE VENDOR. 55 
 
 in any case, would probably be unsatisfactory to the purchaser. 
 It is to be remembered that in certain of the States a scroll, to be 
 sufficient as a seal, must be recognized as such in the body of the 
 instrument. This is usually the office of the testinwnium clause : 
 " In testimony whereof, I have hereunto set my hand and seal," or, 
 " Witness the following signatures and seal," or other similar phrase 
 immediately preceding the signature. If not so recognized, the 
 scroll will be disregarded and the paper held to be unsealed and inop- 
 erative as a deed. 1 But an exception to this rule exists in those 
 cases in which the instrument acknowledged is such as is by statute 
 required to be under seal, e. g., a deed. In such a case the acknowl- 
 edgment of the instrument as a deed supplies the failure of the 
 grantor to recognize the seal in the body of the instrument. 2 The 
 purchaser should see that there are as many scrolls or seals as there 
 are signatures to the instrument. It has been held that several 
 grantors or signers may adopt the seal of one of their number as 
 the seal of all, 8 but to remove any doubt or difficulty upon that 
 point, it is better that a scroll be attached to each of the signatures. 
 
 23. Attestation or acknowledgment. If by the law of the 
 place where the granted premises lie deeds are required to be exe- 
 cuted or acknowledged before subscribing witnesses, either as a 
 mere authentication for registry or as a necessary part of the execu- 
 tion of the instrument, the purchaser should see that the requirement 
 has been precisely fulfilled. He should also see that the witness is 
 competent, being neither the husband or wife of a party in interest, 4 
 nor a party in interest himself, nor otherwise disqualified to testify. 
 
 The ordinary mode in which deeds are authenticated for record is 
 by acknowledgment before certain designated officers, who attach a 
 certificate of acknowledgment to the deed. In a few of the States 
 this acknowledgment is an essential element in the execution of the 
 deed, but in most of the States the only object of the acknowledg- 
 ment is to furnish the recording officer with proof that the deed is 
 
 1 Clegg v. Lemessurier, 15 Grat. (Va.) 108; Jenkins v. Hunt, 2 Rand. (Va.) 446. 
 
 'Cosner v. McCrum, (W. Va.) 21 S. E. Rep. 739; Ashwell v. Ayres, 4 Grat. 
 (Va.) 283. 
 
 Townsend v. Hubbard, 4 Hill (N. Y.), 351; Burnett v. McCluey, 78 Mo. 676; 
 Lambden v. Sharp, 9 Humph. (Tenn.)224. 
 
 4 Corbett v. Norcross, 35 N. H. 99.
 
 56 MARKETABLE TITLE TO KEAL ESTATE. 
 
 genuine, while as between the parties, except where one of the 
 grantors is a married woman, the deed is valid without the acknowl- 
 edgment. The laws of nearly every State in the Union provide that 
 the deed of a married woman shall not be valid unless she acknowl- 
 edges it, and, after the deed has been explained to her privily and 
 apart from her husband, declares that she had willingly executed it 
 and wished not to retract it. But while, as a general rule, deeds 
 are valid as between the parties without acknowledgment, that 
 formality is of vital importance to the purchaser. For unless the 
 acknowledgment be duly taken and all the requirements of the law 
 in respect to the certificate be complied with, the deed, though 
 admitted to record, will not be notice to subsequent purchasers and 
 creditors of the grantor, who might, in consequence, deprive the 
 purchaser of the estate. Besides, a defective certificate of acknowl- 
 edgment is regarded as a defect in the purchaser's title, and should 
 he afterwards sell the estate, would justify the vendee in refusing 
 to accept the title. For this latter reason alone it is important that 
 the purchaser should exact a literal compliance with every provision 
 of law relating to acknowledgment and to the certificate. There 
 has been no more prolific source of objections to title than irregular 
 or informal certificates of acknowledgment. The eye of the marti- 
 net instantly detects a slight departure from statutory forms, and 
 large transactions in real property are sometimes suspended, or even 
 abandoned, on account of real or supposed difficulties thus sug- 
 gested. It, therefore, behooves the purchaser to subject the deed 
 which he receives to the closest scrutiny, in order 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. 
 
 V to-wit(d) : 
 
 STATE OF 
 County of 
 
 I, William Smith, a notary public in and for the county and State 
 aforesaid(J), do certify that A. B.(c) whose name is
 
 SUFFICIENCY OF CONVEYANCE TENDERED BY THE VENDOB. 57 
 
 signed to the foregoing writing(<2), bearing date on the day of 
 , , personally appeared before me in the county afore- 
 said^), the said A. B. being well known to me to be the person who 
 executed the said writing(y), and acknowledged the same to be his 
 act(^). And I further certify that C. B., wife of the said A. B., 
 whose names are signed to said writing bearing date as aforesaid, 
 the said C. B. being well known to me as one of the persons who 
 executed said writing, and being by me examined privily and apart 
 from her husband(A), and having the writing aforesaid fully explained 
 to her(*), she, the said C. B., acknowledged the same to be her act 
 and deed, and declared that she had willingly executed thesame(yfc), 
 and wished not to retract it(). Given under my hand and seal(m), 
 this day of(?i) - . 
 
 WILLIAM SMITH(o), N. P.(p] |>EAL](?). 
 
 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 be 
 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 before two officers instead 
 
 1 Graham v. Anderson, 42 111. 514; 92 Am. Dec. 89; Dunlap v. Dougherty, 20 
 HI. 397; Fuhrman v. Loudon, 13 Serg. & R. (Pa.) 386; 15 Am. Dec. 608; Brooks 
 T. Chaplin, 3 Vt. 281; 23 Am. Dec. 209. 
 
 Vance v. Schuyler, 1 Gilm. (111.) 160; Haidin v. Kirk, 49 111. 153; 95 Am. 
 Dec. 581. 
 
 8
 
 58 MARKETABLE TITLE TO HEAL ESTATE. 
 
 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.* 
 One who owns an interest in a tract of laud 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 law 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. 
 
 s 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 T. 
 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. 
 
 1 Withers v. Baird, 7 Watts (Pa.), 227; 32 Am. Dec. 754; Groesbeck v. Seeley, 
 13 Mich. 329; Davis v. Beazley, 75 Va. 491; Clinch River Veneer Co. v. Kurth, 
 (Va.) 19 8. E. Rep. 878; Wilson v. Traer, 20 Iowa, 231. Compare Kimball v. 
 Johnson, 14 Wis. 674. 
 
 4 Lynch v. Livingston, 6 N. Y. 422. 
 
 Dussaume v. Burnett, 5 Iowa, 95; Long v. Crews, 113 N. C. 256; 18 8. E. 
 Rep. 499, when the officer was a preferred creditor in the deed; so, also, in Baxter 
 v. Howell, (Tex. Civ. App.) 26 8. W. Rep. 453. Acknowledgment of a clerk is 
 not invalid because taken by his deputy. Piland v. Taylor, 113 N. C. 1; 18 8. 
 E. Rep. 70. 
 
 8 Johnston v. Haines, 2 Ohio, 55; 15 Am. Dec. 538. See, also, Van Ness r. 
 Bank, 13 Pet. (U. 8.) 17. 
 
 i 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.
 
 SUFFICIENCY OF CONVEYANCE TENDERED BY THE VENDOR. 59 
 
 material. 1 And a variance between the statutory description of the 
 officer and that contained in the certificate is immaterial. 2 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 officer's 
 commission. 5 It is customary also for the certifying officer to 
 append to his certificate a statement of the time when his commis- 
 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 office, 
 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 act 
 in an official capacity, and had color of title to the office in ques- 
 
 1 Merchants' Bank v. Harrison, 39 Mo. 433; 93 Am. Dec. 285, semble. 
 
 'May v. McKeenon, 6 Humph. (Tenn.) 207; Welles v. Cole, 6 Grat. (Va.)'645. 
 
 *Dundy v. Chambers, 23 111. 369 (312). Here the statute authorized an 
 acknowledgment before mayors of cities. ' It was held that an acknowledgment 
 before a mayor of a town was invalid. Kimball v. Semple, 10 Cal. 441. See, also, 
 Wright v. Wells, 12 N. J. L. 131; Uhlerv. Hutchinson, 23 Pa. St. 110. In North 
 Carolina it has been held that the authority of commissioners appointed by the State 
 government to take acknowledgments to deeds is confined to deeds made by non- 
 residents of the State. De Courcey v. Barr, 1 Busb. Eq. (N. C.) 181. A judge of the 
 United States court, authorized to take an acknowledgment, may take it anywhere 
 in his jurisdiction. Moore v. Vance, 1 Ohio, 14. A statute authorizing the 
 appointment of commissioners of deeds in the cities of the State does not extend 
 to cities incorporated after the act took effect. Parker v. Baker, 1 Clark (N. Y.), 
 223. 
 
 4 Livingston v. McDonald, 9 Ohio, 168. 
 
 ' It must appear from the certificate of the judge that the officer taking the 
 acknowledgment was qualified to act as such at the time the acknowledgment was 
 taken. Phillips v. People, 11 HI. App. 340. As to doubts about the title arising 
 from these particulars, see post, ch. 31, 300.
 
 60 
 
 MARKETABLE TITLE TO REAL ESTATE. 
 
 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.* 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,' 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. 37 Me. 423; Prescott v. Hayes, 42 N. H. 56; Crutchfield 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. 
 
 Vance v. Schuyler, 1 Gilm. (111.) 160. 
 
 Smith v. Hunt, 13 Ohio, 260; 42 Am. Dec. 201; Hiss v. McCabe, 45 Md. 84; 
 Hayden v. Westcott, 11 Conn. 129. 
 
 * 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-
 
 SUFFICIENCY OF CONVEYANCE TENDERED BY THE VENDOR. 61 
 
 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. 6 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," 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 
 
 ment of the deed by Harmon Sherman. A deed was signed "F. M. McKinzie," 
 and the certificate stated an acknowledgment by " F. M. McKezie." Held, insuf- 
 ficient. McKinzie v. Stafford, (Tex.) 27 S. W. Rep. 790. But see Chandler v. 
 Spear, 22 Vt. 388, 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 facb acknowledged by him. 
 
 1 Phillips v. Ruble, Litt. Sel. Cas. (Ky.) 221. 
 
 'Kelly v. Calhoun, 95 U. S. 710; Lovett v. Saw Mill Assn., 6 Paige (N. 
 Y.), 54. 
 
 Merrill v. Montgomery, 25 Mich. 73. 
 
 4 McDaniels v. Flower Brook Mfg. Co., 22 Vt. 274. But see Tenney v. East 
 Warren, etc., Co., 43 N. H. 343. 
 
 'Dail v. Moore, 51 Mo. 589; Robinson v. Mauldin, 11 Ala. 977. 
 
 6 Robinson v. Mauldin, 11 Ala. 977. 
 
 T Elliott v. Osborn, 1 Harr. & McH. (Md.) 146. 
 
 Richmond v. Voorhees, 10 Wash. 316; 38 Pac. Rep. 1014.
 
 62 MARKETABLE TITLE TO REAL ESTATK. 
 
 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. 8 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 that the party acknowledging the deed was well known 
 
 1 Winkler v. Higgins, 9 Ohio St. 599. 
 
 J Ives v. Kimball, 1 Mich. 308. 
 
 Long v. Crews, 118 N. C. 256; 18 S. E. Rep. 499; Dixon v. Bobbins, 114 N. 
 C. 102; Ferebee v. Hinton, 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 justice might take an acknowledgment any where 
 in the State. Learned v. Riley, 14 Allen (Mass.), 109. 
 
 4 Sidwell 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. 3. 
 
 * Johnson v. McGhee, 1 Ala. 168; Colton v. Seavey, 22 Cal. 496.
 
 SUFFICIENCY OF CONVEYANCE TENDERED BY THE VENDOR. 63 
 
 to the officer, or that his identity was proved to the officer by the 
 oaths of credible witnesses, is indispensable. 1 Equivocal phrases, 
 such as that the officer is satisfied as to the identity of the party, will 
 not suffice. 8 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. (g) Fact of acknowledgment. The recital that the grantor 
 appeared before the certifying officer and acknowledged the deed is 
 the gist of the whole certificate. The word " acknowledged " is not 
 indispensable,' but unless the fact of acknowledgment be made to 
 appear by the use of that word or its equivalents, the certificate will 
 be fatally defective. 7 A recital that the grantor made oath that 
 he signed, sealed and delivered the deed has been held equivalent to a 
 statement that he acknowledged the deed. 8 But a recital that the 
 grantor " stated " that he had executed the deed was held insuf- 
 
 1 Fogarty v. Finlay, 10 Cal. 239; 70 Am. Dec. 714; Wolf v. Fogarty, 6 Cal. 
 224; 65 Am. Dec. 509; Gove v. Gather, 23 111. 634 (585); 76 Am. Dec. 711; Fryer 
 v. Rockefeller, 63 N. Y. 268. This was a case which arose between vendor and 
 purchaser. The purchaser rejected the title because a certificate of acknowl- 
 edgment in the chain of title did not show personal acquaintance with the 
 grantor. 
 
 'Klmball v. Simple, 25 Cal. 440; Shepherd v. Carriel, 19 111. 313; Short v. 
 Conlee, 28 111. 219. 
 
 Kelly v. Calhoun, 95 U. S. 710. See, also, Sheldon v. Stryker, 42 Barb. (N. 
 Y.) 284; Thurman v. Cameron, 24 Wend. (N. Y.) 87. 
 
 4 Tully v. Davis, 30 111. 103; 83 Am. Dec. 179. Even though the omission be 
 apparently inadvertent. Wolf v. Fogarty, 6 Cal. 224; 65 Am. Dec. 509; Gould 
 T. Woodward, 4 Green (Iowa), 82. But see Rosenthal v. Griffin, 23 Iowa, 268. 
 
 Hopkins v. Delaney, 8 Cal. 85; Welch v. Sullivan, 8 Cal. 511; Alexander v. 
 Merry, 9 Mo. 514. 
 
 Chouteau v. Allen, 70 Mo. 290. Here the certificate recited that the grantor, 
 being duly sworn, "deposes and says," etc. 
 
 1 Cabell v. Grubbs, 48 Mo. 353; Short v. Conlee, 28 111. 219. In Bryan v. 
 Ramirez, 8 Cal. 461; 68 Am. Dec. 340, the certificate aecited that the grantor was 
 known to the officer to be such, but did not show, an acknowledgment. 
 
 ' Ingraham v. Grigg, 13 Sm. & M. (Miss.) 22. An acknowledgment that he 
 "signed, sealed and delivered" the deed is also equivalent to an acknowl-
 
 64 MARKETABLE TITLE TO REAL ESTATE. 
 
 ficient. 1 It seems that an inadvertent or clerical omission of the 
 word " acknowledged " from the certificate will render it invalid.* 
 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. 8 
 
 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 
 has 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."' 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. 484. 
 
 1 Dewey v. Carnpau, 4 Mich. 565. This was a great refinement. 
 
 * Stanton v. Button, 2 Conn. 527. 
 
 'Newman v. Samuels, 17 Iowa, 528; Spitznaglc T. Van Heasch, Neb. 338. 
 But see Henderson v. Gre^ell, 8 Cal. 581. 
 '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.
 
 SUFFICIENCY OF CONVEYANCE TENDERED BY THE VENDOR. 65 
 
 vately examined, apart from and out of the hearing of her husband," 
 was 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 was 
 held insufficient. 2 
 
 32. (i] Explanation of contents of deed. The recital that the 
 officer explained to the woman the contents of the deed is also abso- 
 lutely indispensable. 8 The intent of the law is 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 with the contents of the 
 deed, but did not state that they were explained to her, was deemed 
 sufficient. 4 So, also, where the certificate recited that the woman 
 " acknowledged and declared that she was well acquainted with the 
 contents of the deed, v 3 a decision open to grave doubt, since she 
 may have been falsely advised as to the said contents. But a certifi- 
 cate that the woman " declared that she fully understood the con- 
 tents of said deed," without stating that the contents were explained 
 to her, is invalid. 6 
 
 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, whetner 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 her privately, 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. & McH. (Md.) 19; 1 
 Am. Dec. 870. 
 
 Dewey v. Campau, 4 Mich. 565. But see the remarks of MILLRR, J., in 
 Deery v. Cray, 6 Wall. (U. 8.) 795, to the effect that "separate" and "apart," M 
 used in the form, are synonymous terms. 
 
 Houston v. Randolph, 12 Leigh (Va.,, 445; Boiling v. Teel, 76 Va. 498. 
 
 4 Chauvln T. Wagner, 18 Mo. 541, a doubtfu. decision. 
 
 Thomas v. Meier, 18 Mo. 578. 
 
 Langton v. Marshall, 59 Tex. 296; Runge v. Sabin, (Tex.) 30 8. W. Rep. 
 568. 
 
 'Ante, 30. 
 
 9
 
 66 MARKETABLE TITLE TO BEAL ESTATE. 
 
 is void as between the parties, unless acknowledged and certified in. 
 strict conformity with the requirements of the law. 1 
 
 33. (fc) 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 which 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 
 
 1 Mason v. Brock, 12 111. 273; 52 Am. Dec. 490; Martin v. Dwelly, 6 Wend. 
 (N. Y.) 9; 21 Am. Dec. 245. 
 
 * Clinch River Veneer Co. v. Kurth, 90 Va. 737, and cases cited below. 
 
 * Gases in which tlie 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
 
 SUFFICIENCY OF CONVEYANCE TENDERED BY THE VENDOR. 67 
 
 34. (Z) 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. Rice, 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, 
 "voluntary act and deed;" language of certificate, "of her own free will." 
 Freeman v. Preston, (Tex.) 20 8. W. Rep. 495. 
 
 Cases in which the certificate was held sufficient. Where the statute provided that 
 the certificate should show thnt 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 statute, "of her own free will 
 * * * without undue influence or compulsion of her husband;" language of 
 certificate, " without undue influence or compulsion of her husband." Tubbsv. 
 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 act 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 own accord." Dundas v. Hitchcock, 12 How. (U. 8.) 256. Language 
 of statute, " that she had freely and voluntarily executed the same;" language of 
 certificate, "without any fear, threats or compulsion." Allen v. Denoir, 53 Miss. 
 321. Language of statute, " that she had of her own free will executed the 
 deed, without compulsion or undue influence of her husband; " language of cer- 
 tificate, " freely and of her own consent, but not by the persuasion or compulsion 
 of her said husband." Little v. Dodge, 32 Ark. 453. 
 
 'Grove v. Zumbro, 14 Grat. (Va.) 501; Churchill v. Moore, 1 R. I. 209. 
 
 * Bateman's Petition, 11 R. I. 585, 588. 
 
 'Belcher v. Weaver, 46 Tex. 293; 26 Am. Rep. 267.
 
 68 MARKETABLE TITLE TO REAL ESTATE. 
 
 as variances and departures from the statutory form excite doubt 
 and distrust in the minds of timid buyers, the purchaser should insist 
 that the precise language of the statute be used. 
 
 35 (m) Reference to seal. The laws of some of the States 
 require that the certificate of acknowledgment shall be authenticated 
 by the seal as well as the signature of the certifying officer. There 
 seems to be some conflict of opinion in these States as to whether it is 
 necessary that the officer shall acknowledge or recognize the seal, 
 either in the body of the instrument or in the attestation clause. 1 
 Without pausing to consider the cases either way, it suffices to saj 
 that wherever by the lex rei sites a seal is required, the safer course 
 is for the purchaser to see that there is a recognition of the seal by 
 the officer, in the usual form, " Given under my hand and seal," etc. 
 
 36. (n) Date of certificate. It is customary, and the better 
 practice, for the officer to insert the date of the certificate in the 
 attestation clause. But a date is not indispensable to the validity of 
 the certificate, unless made so by statute. 2 And the fact that the 
 certificate bears date before the deed itself is immaterial. 3 Inas- 
 much, however, as the custom of dating the certificate universally 
 prevails, and the absence of a date might raise a doubt in the mind 
 of a timid purchaser respecting the title, 4 the grantee would prob- 
 ably be justified in rejecting a certificate which was deficient in that 
 particular. 
 
 37. (o) Signature of officer. It is absolutely essential that the 
 certificate shall be signed by the officer by whom it is made. The 
 recital of the name of the officer in the body of the certificate will 
 not suffice. 8 The certificate is often printed or prepared by a third 
 person, and presented to the officer complete, with the exception of 
 his signature, consequently the subscription of his name is an 
 important step in the authentication of the paper. But even thougk 
 the name were inserted in the form by the officer himself, or the 
 paper were wholly in his handwriting, the omission of the signature 
 
 1 The cases may be seen in Mr. Devlin's work on Deeds, 491. 
 
 Webb v. Iluff, 61 Tex. 677; Irving v. Brownell, 11 El. 402. 
 
 Gest v. Flock, 2 N. J. Eq. 108. 
 
 4 It will be seen hereafter that in some cases it has been held that a purchaser 
 may reject a title if "unsatisfactory " to him, though his objections to the title 
 are really captious and untenable. Post, 288. 
 
 Carlisle v. Carlisle, 78 Ala. 542.
 
 SUFFICIENCY OF CONVEYANCE TENDEBED BY THE VENDOR. 69 
 
 would be fatal, the actual subscription of his name being required 
 as a promulgation of the instrument. 1 If the certificate be by a 
 deputy, the name of the principal should be subscribed " by A. B., 
 deputy," etc. 2 
 
 38. (p) Abbreviation "J. P." etc. It is not absolutely neces- 
 sary that 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 have already seen that, as a general rule, his official 
 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. P." or " K. P.," will suffice. 4 
 
 39 (q) Seal of officer. Where by statute it is provided that the 
 certificate shall be under the signature and seal of the certifying 
 officer, the omission of the seal will be 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 be no 
 objection to the title in another State in which the land lies. In 
 
 'Marston v. Bradshaw, 18 Mich. 81; 100 Am. Dec. 152. 
 8 McCraven v. McGuire, 23 Miss. 100. 
 
 3 Brown v. Farrar, 3 Ohio, 140. The omission of the letters "N. P." after the 
 signature of a notary public does not affect the validity of the certificate. Lake 
 Brie & W. R. Co. v. Whitham, 155 HI. 514; 40 N. E. Rep. 1014. 
 
 4 Final v. Backus, 18 Mich. 218; Russ v. Wingate, 30 Miss. 440; Rawley v. 
 Beman, 12 111. 198. 
 
 8 Mason v. Brock, 12111. 278; 52 Am. Dec. 490; Hastings v. Vaughn, 5 Oal. 
 315; Booth v. Cook, 20 111. 129. The notary's seal must appear, when his certifi- 
 cate declares that he has affixed it; otherwise the certificate is invalid. Bullard 
 v. Perry, 28 Tex. 347. An abstract of title contained a memorandum of a cer- 
 tificate of acknowledgment as follows: "Certif. of acknt. by notary public for 
 said county is signed 'B. R. Randall, L. 8.. Notary Public."' Held, that the 
 abstract sufficiently showed a certificate under official seal. Bucklen v. Hasterlik, 
 155 111. 423; 40 N. E. Rep. 561. 
 
 Farnum v. Buffum, 4 Cush. (Mass.) 260; Baze v. Arper, 6 Minn. 220. None 
 is required in Virginia; the court takes judicial notice of the acts of domestic 
 notaries public. See, also, Powers v. Bryant, 7 Port. (Ala.) 9.
 
 70 MARKETABLE TITLE TO REAL ESTATE. 
 
 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. 1 The fact that 
 the seal precedes instead of follows the signature of the officer is 
 immaterial. 4 
 
 40. (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.* 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- 
 
 1 Bucklen v. Hasterlik, 155 111. 423; 41 N. W. Rep. 561. 
 
 * Mason v. Brock, 12 111. 273; 52 Am. Dec. 490. 
 
 Mason v. Brock, 12 111. 278; 52 Am. Dec. 490. But see In re Neb, 11 Nat. 
 Bankruptcy Reg. 289. 
 'Gilchrist v. Dilday, 152 111. 207; 38 N. E. Rep. 572. 
 
 * Chester v. Rumsey, 26 111. 97; Stuart v. Dutton, 39 111. 91; Whitney r. 
 Arnold, 10 Cal. 531. 
 
 * Ingraham v. Grigg, 13 8m. & M. (Miss.) 22. 
 
 7 Calumet & Chicago Canal Co. v. Russell, 68 111. 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 
 tbe word "act" omitted. Stuart v. Dutton, 39 111. 91. The omission of the
 
 SUFFICIENCY OF CONVEYANCE TENDERED BY THE VENDO'B. 71 
 
 tion and doubt as to what of them are and what are not material. 
 The omission of the word " acknowledged," l 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. Gault, 20 Ark. 190; 83 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 v. Button, 2 Conn. 527. 
 
 1 Hornbeck v. Building Assn., 88 Pa. St. 64. 
 
 * Belcher v. Weaver, 46 Tex. 293; 26 Am. Rep. 267. Here the statute pro- 
 vided that the wife should acknowledge that she did "freely and willingly sign," 
 etc., while the form was that "she had willingly signed," etc., omitting the word 
 " freely." The court held that the word fully might be omitted in the certificate, 
 because it was omitted in the form. 
 
 4 Bradford v. Dawson, 2 Ala. 203. 
 
 1 Bradford v. Dawson, 2 Ala. 203; Carter v. Chandron, 21 Ala. 72.
 
 72 MARKETABLE TITLE TO REAL, ESTATE. 
 
 41. () 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. It 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 
 
 'There is a dictum to this effect in Elliot v. Piersol.. 1 Pet. (U. S.) 328. 
 
 * Wedelv. Herman, 59 Cal. 507; Merritt v. Yates, 71 111. 639; 23 Am. Rep. 128. 
 Elliot v. Piersol, 1 Pet. (U. S.) 328; Bours 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. 
 
 1 This principle is recognized by statute in Kentucky. Keith v. Silberberg r 
 (Ky.) 29 S. W. Rep. 316. 
 Grider v. Land Mortgage Co., 99 Ala. 281; 12 So. Rep. 775.
 
 SUFFICIENCY OF CONVEYANCE TENDERED BY THE VENDOR. 73 
 
 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. l 
 
 42. Unauthorized reservations or restrictions. The pur- 
 chaser may reject a conveyance which contains reservations, restric- 
 tions 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 purchaser may 
 reject a deed which reserves an easement in the land to a third per- 
 son, though he knew of the existence of the easement at the time 
 the contract was made. 3 
 
 The conveyance may be rejected if it does not include any ease- 
 ment or servitude to which the purchaser maybe entitled under the 
 contract in other lands of the vendor. 4 
 
 The purchaser is not bound to accept a deed containing erasures, 5 
 or one containing a blank, left for the consideration money. 6 
 
 A purchaser entitled to the covenants implied from the use of 
 the words " grant and convey," cannot be required to accept a 
 deed in which the grantor limits the effect of those covenants by 
 a clause that he warrants the title " against the lawful claims of 
 all persons claiming by, through, or under him, but no other." 7 
 
 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 tho 
 lease from the operation of the warranty. 8 
 
 43. Waiver of objections. The purchaser should make his 
 objections to the deed, either in respect to form or substance, when 
 
 ^lannagan v. Young, 2 Harr. & McH. (Md.) 38. 
 
 'Millinger v. Daly, 5>6 Pa. St. 245. See 3 Washb. Real Prop. 431 (639). 
 
 "Morgan v. Smith, 11 111. 194. 
 
 4 Wilson v. McNeal, 10 Watts (Pa.), 422. 
 
 Markley v. Swartzlander, 8 W. & S. (Pa.) 172. 
 
 Moore v. Beckham, 4 Binn. (Pa.) 1. 
 
 'Union Mut. Life Ins. Co. v. Crowl, (Tex. Civ. App.) 67 S. W. 901. 
 
 Bruner v. Diamond, 65 111. App. 476. 
 
 10
 
 74 MARKETABLE TITLE TO BEAL, ESTATE. 
 
 tendered. If lie fail in this respect it has been held that he thereby 
 waives all objections. 1 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. 3 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. 4 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. 5 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. 6 In 
 such a case he will also be deemed to have waived any objection 
 to specific performance, based upon the existence of an incum- 
 brance on the property at the time the deed was tendered. 7 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. 8 
 
 1 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. 
 
 'Morgan v. Stearns, 40 Cal. 434. 
 
 'Grisvvold v. Brock, 43 111. App. 203. 
 
 4 Stryker v. Vanderbilt, 25 N. J. L. 68. 
 
 " Kenniston v. Blakie, 121 Mass. 552. 
 
 Moak v. Bryant, 51 Miss. 560. 
 
 T Ashbaugh 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 against 
 a purchaser for valuable consideration, if he had notice of the plaintiff's rights. 
 Mastin v. Halley, 61 Mo. 196 ; Wadsworth v. Wendell, 5 Johns. Ch. (N. Y.) 224.
 
 CHAPTER V. 
 
 CAVEAT EMPTOR. 
 
 GENERAL OBSERVATIONS. 44. 
 
 APPLICATION OF THE TvrATmvr TO JUDICIAL SALES. 
 
 Inherent defects of title. 45. 
 
 Effect of confirmation of tJie 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. 40. 
 Want of jurisdiction. 50. 
 Matters occurring after jurisdiction has attached. 51. 
 
 Fraud a# 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. 
 Fraudulent representation*. 59. 
 
 Rights of purchase?- from purchaser under execution. 80. 
 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 
 
 Co. Litt. 102a; Brown Leg. Max. 768. 
 1 Phillips v. Walsh, 66 N. C. 283.
 
 76 MARKETABLE TITLE TO REAL ESTATE. 
 
 for ascertaining the validity of the title ; l (3) To designate a class of 
 cases 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 pay the purchase money, though the title which he is to receive 
 will be 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 indefeasible will be implied from the mere relations of the par- 
 ties, contrary, as we have seen, to the general rule when the vendor 
 contracts in his own right. It is to this class of cases that our 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, 
 being 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 
 representatives under judicial license ; sales by executors and admin- 
 istrators 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 or ministerial 
 character, and from whom the purchaser has no right to require 
 general covenants for title. 
 
 45. APPLICATION OF THE MAXIM TO JUDICIAL SALES. 
 Inherent defects 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 such court, and which remains incomplete until 
 ratified or confirmed by the court. 2 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 Phillips v. Walsh, 66 N. C. 233. 
 9 Dresbach v. Stein, 41 Ohio St. 70. 
 Bolgiano v. Cook, 19 Md. 375.
 
 CAVEAT EMPTOR. 77 
 
 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 
 
 1 Rorer Jud. Sales (2d ed.), 150, 174, 476, 528, 602, 694, 923. 
 
 Corwin v. Benham, 2 Ohio St. 36. 
 
 Hously v. Lindsay, 10 Heisk. (Term.) 651. 
 
 Brown v. Wallace, 4 Gill & J. (Md.) 479. 
 
 Cashon 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 caveat 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 
 game 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." 
 
 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, II 
 So. Car. 276; Toole v. Toole, 112 N. Y. 333; Bird r. 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.
 
 78 MARKETABLE TITLE TO BEAL ESTATE. 
 
 determine whether a good title can be made. 1 But if he permits 
 the sale to be confirmed without objection, he cannot afterwards 
 refuse to pay the purchase money because of imperfections in the 
 title, 2 or irregularities in the proceedings under which he pur- 
 
 St. 612, citing Schug's Appeal, 14 W. N. C. (Pa.) 49; Binford's Appeal, 164 Pa. 
 St. 435; 30 Atl. Rep. 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 hig 
 commissioner the purchaser may have relief for defective title before the sale is 
 confirmed, but not after. Humphrey v. Wade, 84 Ky. 391; 1 8. W. Rep. 648. 
 
 A purchaser at a judicial sale cannot, in case of the existence of judgment 
 creditors not before the court, be required to complete his purchase without their 
 concurrence. Governor of Hospital v. West. Imp. Cominrs., 1 De G. & J. 531. He 
 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 caveat emptor does not apply at judicial sale as at execution sale, until 
 after confirmation. Charleston v. Blohme, 15 So. Car. 124; 40 Am. Rep. 690. 
 
 1 2 Jones Mortgages, 1648; Rorer on Jud. Sales (2d ed.), 150; Gordon v. 
 Sims, 2 McCord Ch. (S. C.) 151. In England the title is directed to be investi- 
 gated before a sale in chancery is made. 1 Sugd. Vend. (8th Am. ed.) 13. The 
 court confirms 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, 
 212. 
 
 The right of the purchaser to have a reference of the title is denied in Anderson 
 T. Foulke, 2 Harr. & G. (Md.) 346, 358. In re Browning, 2 Paige Ch. (N. Y.) 64, 
 a reference of title was directed on the application of the purchaser after con- 
 firmation of the sale. 
 
 *2 Jones on Mortgages, 1647; Freeman Void Jud. Sales, 48; Wood v. Mason, 
 3 Sumn. (U. S.) 318. 
 
 Threlkeld v. Campbell, 2 Grat. (Va.) 198; 44 Am. Dec. 384; Thomas v. David- 
 gon, 76 Va. 338; Hickson v. Rucker, 77 Va. 135; Long v. Weller, 29 Grat. (Va.) 
 347; Watson v. Hoy, 28 Grat. (Va.) 698; Young v. McClung, 9 Grat. (Va.) 336; 
 Daniel v. Leitch, 13 Grat. (Va.) 195. 
 
 Jennings v. Jenkins, 9 Ala. 285; Perkins v. White. 7 Ala. 855. 
 
 Williams v. Glenn, 87 Ky. 87; 7 S. W. Rep. 610; Fox v. McGoDdwin, 21 
 Ky. L. R. 1776; 56 S. W. 515. 
 
 Hedrick v. Yount, 22 Kans. 344. 
 
 Barron v. Mullin, 21 Minn. 374. 
 
 Dresbach v. Stein, 41 Ohio St. 70. 
 
 Capehart v. Dowery, 10 W. Va. 130. 
 
 Williamson v. Field, 2 Sandf. Ch. (N. Y.) 583; Hammond v. Chamberlain, 
 58 Neb. 445; 78 N. W. 718. 
 
 In Rorer on Judicial Sales (2d ed. 150) it is said that " although the rule 
 caveat emptor applies after the (judicial) sale is closed by payment of the pur- 
 chase money and delivery of the deed, if there be no fraud; yet the buyer, if he
 
 CAVEAT EMPTOB. 79 
 
 chased. 1 In this respect his failure to make seasonable objection to 
 the title has the same effect as would his acceptance of a conveyance 
 without covenants for title. It has also been held that if the pur- 
 chaser bid with notice of defects in the title, he cannot set up those 
 defects as a ground for resisting a confirmation of the sale. 2 We 
 shall see that the same rule prevails in cases of private sale. 8 It 
 seems to be the better opinion that confirmation of the sale is con- 
 clusive upon the purchaser, whether he had or had not notice of the 
 defective title. It is certainly so where he had notice of the defect, 4 
 or wherever, by reasonable diligence, he might have obtained notice, 
 
 discover the defect beforehand, will not be compelled to complete the sale, "citing 
 Ormsby v. Terry, 6 Bush (Ky.), 553, a case which seems to decide no more than 
 that the court will not confirm the sale and compel the purchaser to execute his 
 bonds for the deferred payments of the purchase money if the title be bad and 
 the purchaser object. It is not probable that more than this last proposition is 
 intended by the author referred to, since the rule is almost universal, as has been 
 seen, that the maxim caveat emptor applies in its fullest extent after the confirma- 
 tion of a judicial sale, whether the purchase money has or has not been paid, 
 except in certain cases where the decree or j udgment under which the sale was 
 made was void on the ground of fraud or want of jurisdiction, or where the sale 
 itself was tainted with fraud; and except, perhaps, in some of the States, where 
 the purchaser has been evicted and the fraud arising from the sale remains undis- 
 turbed in the hands of the court, or in the hands of the purchaser. 
 
 After confirmation of a judicial sale it cannot be avoided in a collateral pro- 
 ceeding by showing defects in the notice of sale (Wyant v. Tuthill, 17 Neb. 495; 
 23 N. W. Rep. 342), or that security for the payment of the purchase money 
 was not required (Wilkerson v. Allen, 67 Mo. 502); or that the officer who 
 made the sale had no authority for that purpose (Core v. Strieker, 24 W. Va. 689); 
 or that he departed from the prescribed order of sale (McGavock v. Bell, 3 Coldw. 
 [Tenn.] 512); or that the appointment, of the selling jfficer was invalid. Mech. 
 Sav. & B. L. Assn. v. O'Conner, 29 Ohio St. 651. 
 
 It cannot be denied that the rule stated in the text may produce hardship in 
 some cases, especially where by statute a confirmation of the sale is permitted to 
 be made by a judge at chambers or during vacation of the court, on motion of a 
 party, and notice to those interested, in which case the interval between the sale 
 and the confirmation is usually short. Of course, however, if the motion be 
 made by the purchaser, and the title should turn out to be defective, he has no 
 one but himself to blame, as common prudence would dictate that he satisfy 
 himself about the title before moving to confirm the sale. 
 
 1 Jennings v. Jennings, 9 Ala. 285; Wilson v. Raben, 24 Neb. 368; 38 N. W. 
 Rep. 844. 
 
 1 Riggs v. Pursell, 66 N. Y. 193; 74 N. Y. 371. In Carneal v. Lynch, 91 Va. 
 114; 20 S. E. 959, the purchaser objected to confirmation of the sale on the 
 ground that the property encroached 2% inches on a street. But as a map 
 was exhibited before the sale showing the encroachment, which map he saw 
 but did not examine closely, he was required to take the property. 
 
 Post, "Waiver of Objections," 85. 
 
 'Jennings v. Jenkins, 9 Ala. 285, 291.
 
 80 MARKETABLE TITLE TO REAL, ESTATE. 
 
 as where the defect appears 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. 2 It is to be 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 absoutely bad. 4 He cannot be required to take a title which 
 he must support by bill of injunction against a third person. 6 
 Generally, a purchaser by private contract cannot be compelled 
 to take an equitable title, 6 , 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 The 
 rule caveat emptor applies as well to incumbrances as to defects of 
 title proper. After confirmation of the sale the existence of an 
 incumbrance upon the premises is no ground for detaining the 
 purchase money, nor for recovering it back from the plaintiff in 
 
 1 Smith v. Winn, 38 S. Car. 188; 17 S. E. Rep. 717. 
 
 8 Campbell v. McCahan, 41 111. 445. It is the business of a purchaser at a 
 judicial sale to see that all the persons who are necessary to convey the title 
 are before the court, and that the sale is made according to the decree. 2 Dan. 
 Ch. Pr. 1456; Daniel v. Leitch, 13 Grat. (Va.) 195. 
 
 'Long v. Waring, 25 Ala. 625; McCartney v. King, 25 Ala. 681; Holmes T. 
 Shaver, 78 111. 578; Hand v. Grant, 10 Sm. & M. (Miss.) 514; 43 Am. Dec. 
 528. A purchaser at a judicial sale cannot enjoin the collection of the pur- 
 chase money on the ground that the title has failed. McManus v. Keith, 4 
 111. 388; Threlkeld v. Campbell, 2 Grat. (Va.) 198; 44 Am. Dec. 384. 
 
 4 See post, chapter 31, where, also, is considered what matters render a 
 title doubtful. Handy v. Waxter, (Md.) 23 Atl. Rep. 1035; McCafferj T. 
 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. 
 
 Post, ch. 30. 
 
 T 1 Sugd. Vend. (8th Am. ed.) 152. The rule that a purchaser will not b 
 compelled to take an equitable title does not extend to estates sold under the 
 decree of a court of equity, where the legal title is vested in an infant. 
 1 Sugd. Vend. 592, at p. 594, it is said that this " anomaly " is removed by 
 etatute, enabling the court to make a good title. In Bryan v. Read, 1 Dev. 
 & Bat. Eq. (N. C.) 78, 86, it was held that a purchaser at a judicial sale 
 under decree against an infant could not be compelled to complete the contract, 
 because the infant might show cause against the decree when of age. 
 
 Boorum v. Tucker, (N. J. Eq.) 26 Atl. Rep. 456.
 
 CAVEAT EMPTOB. 81 
 
 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 com- 
 pelled 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 Lid 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 es- 
 sence of the contract especially applies in cases 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. 6 
 
 The objection that there are liens on the property cannot be 
 made where the lienb.olders 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 gen- 
 eral 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 mistaken or fraudulent represen- 
 tations 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, adver- 
 tised 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 purchase money not 
 having been distributed, vacate the sale on petition of the purchaser, 
 and direct that the purchase money he refunded to him. 7 And it 
 
 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 T. 
 McRoberts, 9 Ala. 297. 
 
 8 Post, this chapter, "Subrogation," 65, 66.' 
 
 'Ormsby v. Terry, 6 Bush (Ky.), 553. 
 
 * 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. 
 
 'Riggs v. Pursell, 66 N. Y. 193; Merges v. Ringler, 54 N. Y. Supp. 280; 
 34 App. Div. 415. 
 
 Blanton v. Ky. Distilleries, etc., Co., 120 Fed. 318. 
 
 7 Preston v. Fryer, 38 Md. 221. In this case it appeared that a married woman 
 had conveyed her separate estate to her husband, and afterward died before her 
 
 11
 
 82 MARKETABLE TITLE TO KEAL ESTATE. 
 
 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 dis- 
 turbed in his possession, or exposed to disturbance by one having a 
 clear paramount title to the estate, which was unknown to the pur- 
 chaser at the time of the sale, the sale should rescinded, and the 
 purchase money restored to the purchaser. 1 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 
 eases in which the court had no jurisdiction to direct the sale at 
 which the purchaser bid, and that in such a case the purchaser 
 might have restitution of the purchase money even after confirma- 
 tion of the sale. 2 And, generally, it has been held that a purchaser 
 
 husband. On the death of the husband suit was brought for sale of the land and 
 distribution of the proceeds among his heirs. The deed to the husband was a 
 nullity, but the officer of the court advertised the title to be good, and the pur- 
 chaser bought under that impression. But for the fact that the proceeds of sale 
 remained undistributed in the cause when restitution was made, and but for the 
 unnecessary declaration by the officer that the title was good, it would be difficult 
 to reconcile this case with the rule caveat emptor, as applied to judicial sales in 
 other jurisdictions. While there is no warranty at a judicial sale, yet, if the 
 purchaser when sued for the purchase money can show that at the sale there were 
 misrepresentations as to the thing sold, whether willful or not, he may set up 
 such misrepresentations as a defense to the action. Charleston v. Blohme, 15 So. 
 Car. 124; 40 Am. Rep. 690, citing State v. Gaillard, 2 Bay (S. C.), 11; 1 Am. Dec. 
 628; Means v. Brickell, 2 Hill (S. C.), 657; Adams v. Kibler, 7 So. Car. 58; Mitch- 
 ell v. Pinckney, 13 S. Car. 203. 
 
 1 Glenn v. Clapp, 11 Gill & J. (Md.) 1. This holding is largely obiter dictum, as 
 the purchase money in the case had not been paid, and the case itself was an 
 appeal from an order confirming the sale as against the purchaser's objections ta 
 the title. The rule announced seems eminently just and equitable, but it cannot 
 be easily reconciled with the general rule that a purchaser at a judicial sale cannot 
 be relieved from his bargain after confirmation of the sale, on the ground that the 
 title has failed. 
 
 8 Boggs v. Hargrave, 16 Cal. 559; 76 Am. Dec. 561, citing Darvin v. Hillfield, 
 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 without 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 juris- 
 diction was that the defendant had no title to the property; that the title waa 
 outstanding in one who had not been made a party, and the objection was sus
 
 CAVEAT EMPTOB. 83 
 
 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. 1 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 exam- 
 ining the proceedings in the cause. 2 Nor does the rule apply where 
 there was no such land in existence as the officers of the court 
 undertook to sell. 8 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. 4 The purchaser will not be deprived of his 
 right to reject a defective title, and enjoin the collection of the pur- 
 chase money, where he has been led by the conduct of the parties 
 to postpone a motion to set aside an order confirming the sale, until 
 after the close of the term at which the order was made. 5 
 
 The rule that a purchaser at a judicial sale 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, 6 or where there 
 
 tained, and the purchaser permitted to recover back the purchase money. Such 
 a principle goes far towards destroying altogether the application of the maxim 
 caveat emptw 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. 
 
 'Freeman Void Jud. Sales, 48; Todd v. Dowd, 1 Mete. (Ky.) 281; Carpenter 
 v. Strother, 16 B. Mon. (Ky.) 389; Barrett v. Churchill, 18 B. Mon. (Ky.) 387. 
 
 * Post, this chapter, 61. 
 
 8 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 offi- 
 cers 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 pur- 
 chaser must buy at his risk. It appeared that H. had never been seized of one of 
 the tracts so conveyed, and was not entitled to anything by virtue of the con- 
 veyance thereof. The sale was treated as having been made without authority, 
 or by mistake, and the purchasers were relieved, even after confirmation. 
 
 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 give* 
 possession to the purchaser, even as against the party to the suit." 
 Morrow v. Wessell, (Ky.) 1 S. W. Rep. 439. 
 
 Worthington v. McRoberts, 9 Ala. 297. In Mahoney v. Allen, 42 N. Y, 
 Supp. 11, the purchaser was permitted to make objections of that kind after 
 the sale Avas confirmed.
 
 84 MARKETABLE TITLE TO HEAL ESTATE. 
 
 is no probability that the purchaser will ever be disturbed in his 
 possession, and the alleged imperfections have been ferreted out as 
 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. Accordingly, 
 in several such cases, not only has the purchaser been permitted to 
 detain the unpaid purchase money, but restitution thereof has been 
 made to him where the fund accruing from the sale remained undis- 
 tributed in the hands of the court. 1 In other cases, a distinction has 
 been made between sales in partition, or other voluntary sales, and 
 those in which the sale is to compel 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. 2 The proposition that a purchaser at a judicial sale, who, 
 
 Preston v. Fryer, 38 Md. 221. Boggs v. Hargrave, 16 Cal. 559; 76 Am. 
 Dec. 561. Weems v. Love Mfg. Co., 74 Miss. 831; 21 So. 915. See, also, 
 Charleston v. Blohme, 15 So. Car. 124; 40 Am. Rep. 690. The case of Glenn v. 
 Clapp, 11 Gill. & J. (Md.) 1, has been cited to this point, but an examination 
 of that case shows that the purchaser's objections to the title were made 
 before continuation of the sale. See Rorer on Jud. Sales (2d ed.), 78. 
 
 * Latimer v. Wharton, (So. Car.) 19 S. E. Rep. 855. Here the purchaser in a 
 suit for the administration of the assets of a deceased debtor's estate, sought to 
 enjoin a judgment for the purchase money on the ground that he had been 
 evicted by an adverse claimant, and it was held that the sale of the land having 
 been compulsory, he must pay the purchase money; the court observing: "It 
 is well known that the reason of the rule of caveat emptor at sheriff's sales is 
 because such sales are forced and are made under compulsory process. There is 
 not the same reason for holding that the rule should prevail where the officer 
 selling the property is regarded as the agent of the parties, such as sales for par- 
 tition and those made by executors and administrators." This case contains an 
 interesting review of the South Carolina authorities upon the right of the pur- 
 chaser at a judicia\ sale to detain the purchase money on failure of the title. As 
 to such right in this State in case of a private sale, see post, 190. In Smith 
 v. Brittain, 3 Ired. Eq. (N. C.) 347, 351; 42 Am. Dec. 175, which was a suit for 
 partition, it was said by RUFFIN, C. J.: "A sale by the master in a case 
 of this kind, is but a mode of sale by the parties themselves. It is not
 
 CAVEAT EMPTOK. 85 
 
 after confirmation of the sale, has been evicted by title paramount, 
 will not be compelled to pay the unpaid purchase money when the 
 facts avoiding the title were not such as he could have discovered 
 by the exercise of reasonable prudence, care and diligence, com- 
 mends itself to the mind as equitable and just. It is believed that 
 no serious inconvenience could result from such a rule, while a bene- 
 fit consequent thereon is obvious. Judicial sales are usually made 
 upon an extended credit, and if purchasers could be assured that 
 they would not be compelled to pay the unpaid purchase money if 
 they should be evicted by some one having a better title, it is fair to 
 assume that better prices for property thus sold would be realized. 
 We cannot refrain from expressing here a regret that the rule caveat 
 emptor, as applicable to judicial and ministerial sales, has not been 
 universally so qualified as to permit the purchaser to detain the pur- 
 chase money if, before it is paid, he discovers that the title is abso- 
 lutely bad, and not merely doubtful or suspicious. If he bids under 
 the impression that he will not be compelled to pay the purchase 
 money should he get no title and the vast number of decisions 
 enforcing the rule caveat emptor attest the fact that many such bids 
 are made the rule is to him a snare and a pitfall. If, on the other 
 hand, he bids knowing that he must pay the purchase money, though 
 he be evicted from the premises, the property is sold for a merely 
 nominal sum, thus entailing loss and sacrifice upon the owners, and 
 often upon creditors at whose instance the sale was made. 
 
 But the generally prevalent rule and the weight of authority 
 undoubtedly is that a purchaser at a judicial sale proper will not be 
 permitted to have restitution of the purchase money after it has 
 passed beyond the control of the court, without regard to the nature 
 or extent of the defect of title, 1 except, perhaps, where the judg- 
 ment or decree under which the purchase was made was void for 
 
 merely a sale by the law, in. tnvitum, of such interest as the party has or may 
 have, in which the rule is caveat emptor, but professes to be a sale of a particular 
 estate, stated in the pleadings to be vested in the parties, and to be disposed of 
 for the purpose of partition only. Thereupon, if there be no such title, the 
 purchaser has the same equity against being compelled to go on with his 
 purchase as if the contract had been made without the intervention of the 
 court, for, in truth, the title has never been passed on between persons con- 
 testing it." 
 1 Smith v. Winn, 38 So. Car. 188; 17 S. E. Rep. 717.
 
 86 MARKETABLE TITLE TO REAL ESTATE. 
 
 want of jurisdiction ; * nor, after the sale has been confirmed, to 
 detain the purchase money upon mere suggestions of doubts and dif- 
 ficulties as to title, nor even where the title has absolutely and pal- 
 pably failed, if the pleading in the case in which he purchased show 
 the true state of the title. 2 And in no case, apart from questions 
 of fraud or deceit, can a purchaser at a sale made by one in a minis- 
 terial or fiduciary capacity, maintain an action against the seller to 
 recover damages for inability to convey a clear title. Inasmuch as 
 there is no contract in such a case that the purchaser shall receive a 
 good title, there can be no cause of action against the vendor if the 
 title fails. 8 We have seen, however, that if the person making the 
 sale choose to execute a conveyance with general warranty to the 
 purchaser, he will be personally liable on the covenant. 4 
 
 It has been held, with respect to the maxim caveat emptor, as 
 applicable to judicial sales, that a distinction is to be observed 
 between cases in which the decree directs a sale of the " land " itself, 
 and those in which only an " estate " or interest in the land is 
 directed to be sold, and that in the former case, if the purchaser 
 acquires no title, he may, even after confirmation of the sale, hare 
 the contract rescinded and the purchase money returned, but that in 
 the latter case he must take the title at his risk. 5 This distinction 
 does not appear to have been generally observed. 
 
 4:8. Fraud as it affects rights of purchaser at judicial sale. 
 Fraud, as it respects the rights of a purchaser at a judicial sale or 
 
 J See Boggs v. Hargrave, 16 Cal. 559; 76 Am. Dec. 561. 
 
 1 Eccles v. Timmons, 95 N. Car. 540. Even t hough the purchaser was fraudu- 
 lently induced to bid. Norton v. Neb. Loan & Tr. Co.. 35 Neb. 466: 53 N. W. 
 Rep. 481; 58 N. W. Rep 953. 
 
 'A rigorous application of the doctrine caveat tmptor to judicinl sales is found 
 in Evans T. Dendy. 2 Spear (S. Car.), 9; 43 Am. Dec. 356, where it was held that 
 a purchaser under a decree in partition between heirs who has been evicted by 
 title paramouut, cannot recover back the purchase money, though it remains 
 undistributed in the hands of the officer making the sale. RICHARDSON. J.. dis- 
 sented upon the ground that the officer making the sale is the mere agent of the 
 heirs, and that such a sale does not stand upon the same footing as a sale under 
 execution. See, also, Rogers v. Horn, 6 Rich. L. (S. C.) 361. It is to be observed 
 that in Evans v. Dendy. supra, a conveyance without covenants for title had been 
 made to the purchaser. 
 
 4 Po*t, 69. 
 
 * Shields v. Allen, 77 N. Car. 375, criticised but not overruled in Ellis v. Ander- 
 ton, 88 N. Car. 476. This case holds that when a court decrees the sale of land it
 
 CAVEAT EMPTOT?. 87 
 
 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 
 sind 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, 82 N. C. 192, citing Shields v. Allen, supra, it was said that the maxim caveat 
 tmptor did not apply to judicial sales in North Carolina. 
 
 1 Post, this chapter, 52. 
 
 J Rorer on Jud. Sales (2d ed.), 175; Preston v. Fryer, 38 Md. 221; Merrine 
 v. Vaulier, 3 Halst. Ch. (N. J.) 34, semble ; Bishop v. O'Connor 69 HI. 431, 
 dictum. While there is no warranty at a judicial sale, the purchaser when sued 
 lor 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. 
 McManus v. Keith, 49 111. 388. 
 
 1 Williams v. Glenn, 87 Ky. 87; 7 S. W. Rep. 610. 
 
 Norton v. Neb. Loan & Tr. Co.. 35 Neb. 466; 53 N. W. Rep. 481: 58 id. 95a
 
 88 MARKETABLE TITLE TO REAL ESTATE. 
 
 Nor will the purchaser be relieved if with knowledge of the 
 fraud he permits the sale to be confirmed 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 parties, 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 be settled 
 
 1 Fore v. McKenzie, 58 Ala. 115. 
 
 * Vandever v. Baker, 13 Pa. St. 126; Slowthower v. Gordon, 23 Md. 1, where 
 it was said that there is no relation of trust and confidence between the officer 
 making a judicial sale and the purchaser. 
 
 J Veeder v. Fonda, 3 Paige (N. Y.), 94; Seaman v. Hicks, 8 Paige (N. Y.), 656; 
 McGown v. Wilkins, 1 Paige (N. Y.), 120; Morris v. Mowatt, 2 Paige (N. Y.), 
 586; 22 Am. Dec. 661; Kauffman v. Walker, 9 Md. 229. In Tooley v. Kane, 1 
 Sm. & M. Ch. (Miss.) 518, it was said that the court would set aside a sale in case 
 of fraud, even after confirmation. 
 
 4 Black on Judgments (1st ed.), 245, et seq. 
 
 'Freeman on Judgments (4th ed.), 117, et seq.; Cox v. Davis, 17 Ala. 714; 52 
 Am. Dec. 199. 
 
 * Freeman Void Jud. Sales, 20; Black on Judgments, 261, et seq.; Rorer on 
 Jud. Sales (2d ed.), 171. Swiggart v. Harber, 4 Scam. (111.) 364; 39 Am. Dec. 
 418. The opinion of the court in the leading case of Voorhees v. Bank of the U. 
 S., 10 Pet. (U. S.) 449, 475, contains a clear exposition of this doctrine: " The line 
 which separates error in judgment from the usurpation of power is very definite, 
 and is precisely that which denotes the cases where a judgment or decree is 
 reversible only by an appellate court, or may be declared a nullity collaterally, 
 when it is offered in evidence in an action concerning the matter adjudicated, or 
 purporting to have been so. In the one case it is a record importing absolute
 
 CAVEAT EMPTOR. 89 
 
 everywhere, either by statute or judicial declaration, that the 
 reversal of a judgment or decree on error or appeal cannot disturb 
 the title of a purchaser at a judicial sale under such judgment or 
 decree, 1 except in a case in which the land sold was not the prop- 
 erty of the defendant in the cause, and the alleged debt for which 
 the land was sold was found not to exist. 2 And, except, also, 
 in some of the States, that if the plaintiff in the reversed judgment 
 be himself the purchaser of the land, the defendant may recover it 
 back. 3 There may be a restitution of the proceeds of the sale to 
 
 verity; in the other mere waste paper. There can be no middle character assigned 
 to judicial proceedings which are irreversible for error. Such is their effect 
 between the parties to the suit, and such are the immunities which the law affords 
 to a plaintiff who has obtained an erroneous judgment or execution. It would 
 be a well-merited reproach to our jurisprudence if an innocent purchaser, no 
 party to the suit, who had paid his money on the faith of an order of a coiirt, 
 should not have the same protection under an erroneous proceeding as the party 
 who derived the benefit accruing from it. A purchaser under judicial process 
 pays the plaintiff his demand on the property sold; to the extent of the purchase 
 money he discharges the defendant from his adjudged obligation. Time has 
 given an inviolable sanctity to every act of the court preceding the sale, which 
 precludes the defendant from controverting the absolute right of the plaintiff to 
 the full benefit of his judgment, and it shall not be permitted that the purchaser 
 shall be answerable for defects in the record, from the consequence of which the 
 plaintiff is absolved. Such flagrant injustice is imputable neither to the common 
 nor statute law of the land." In Lancaster v. Wilson, 27 Grat. (Va.) 624, 629, the 
 court, deciding that the title of a purchaser under an invalid and irregular attach- 
 ment sale could not be collaterally drawn in question, observed: "If, after 
 the rendition of a judgment by a court of competent jurisdiction, and after 
 the period elapses when it becomes irreversible for error, another court may, 
 in another suit, inquire into the irregularities or errors in such judgments, 
 there would be no end to litigation, and no fixed established rights. A judg- 
 ment, though unre versed and irreversible, would no longer be a final adjudi- 
 cation of the rights of litigants, but the starting point from which a new litiga- 
 tion would spring up. Acts of limitation would become useless and nuga- 
 tory. Purchasers on the faith of judicial powers would find no protection. 
 Every right established by a judgment would be insecure and uncertain, and a 
 cloud would rest upon every title." 
 
 1 Rorer Jud. Sales, 130. 
 
 'Baker v. Baker, 87 Ky. 461; 9 8. W. Rep. 382. 
 
 1 Post, " Sheriff's Sales," this chapter; Gould v. Sternberg, 128 111. 510; 21 N. E. 
 Rep. 628; Turk v. Skiles, 38 W. Va. 404. This exception does not appear to 
 have been admitted in Baker v. Baker, 87 Ky. 461; 9 S. W. Rep. 382, and was 
 denied in Yocum v. Foreman, 14 Bush (Ky.), 494. 
 12
 
 90 MARKETABLE TITLE TO REAL ESTATE. 
 
 the party injured by the error, but the purchaser's title remains in- 
 tact, 1 unless, indeed, it is apprehended the judgment was reversed 
 upon grounds that would have rendered it void had no appeal been 
 taken. It would seem then to follow from these elementary prin- 
 ciples that, if a purchaser at a judicial sale resists a confirmation of 
 the sale on the ground of errors and irregularities in the proceed- 
 ings, it would only be necessary to consider whether such errors and 
 irregularities were of a kind that would render the judgment or 
 decree under which the sale was made absolutely void, or voidable 
 
 'Voorhis v. Bank of U. S., 10 Pet. (U. S.) 449. Freeman on Judgments, 
 484 (3d ed.) ; Freeman on Void Jud. Sales, p. 45 (3d ed.) : Black on Judp- 
 ments, p. 320; Rorer Jud. Sales (2d ed.), 132; Burnett v. Hamill, 2 Sell. A 
 Lef. 577. Voorhees v. Bank, 10 Pet. (U. S.) 449; McGoon v. Scales, 9 Wall. 
 (U. S.) 23, 31. Jackson v. Edwards, 22 Wend. (X. Y.) 493, 518. Cockey v. 
 Cole, 28 Md. 276; 92 Am. Dec. 684; Benson v. Yellott, (Md.) 24 Atl. Rep. 
 451. Capehart v. Dowery, 10 W. Va. 130. Frederick v. Cox, 47 W. Va. 14; 
 34 S. E. Rep. 958. Yocum v. Foreman, 14 Bush (Ky.), 494; Bailey v. Fanning 
 Orphan School, (Ky.) 14 S. W. Rep. 908. Stout v. Gully. (Colo.) 22 Par. 
 Rep. 954; Cheever v. Minton, (Colo.) 21 Pac. Rep. 710. Gould v. Sternberg, 
 128 111. 510; 21 N. E. Rep. 628. England v. Garner, 90 N. Car. 197. If juris- 
 diction of a cause has been acquired by the court the title of a purchaser at a 
 sale therein cannot be affected by the fact that the decree in pursuance of which 
 the sale was made was founded on insufficient proof. Bolgiano v. Cook, 19 
 Md. 375. A purchaser under a judgment merely erroneous acquires good title ; 
 otherwise, if the judgment be void. Bowers v. Chancy, 21 Tex. 363. Mere 
 errors and irregularities in the proceedings make no grounds for collateral 
 attack. Wilson v. Smith, 22 Grat. (Va.) 493. The remedy of the person 
 injured by the passing of title under a judgment that has been reversed for 
 error is an action for damages against those at whose instance the sale was 
 made, alleging such facts as will show that the plaintiff is entitled, by reason 
 of the reversal, to what he has been deprived of by the erroneous judgment. 
 Hays v. Griffith, 85 Ky. 375; 11 S. W. Rep. 306; 3 S. W. Rep. 431. The case 
 of Sohier v. Williams, 1 Curt. (C. C.) 479, affords an illustration of this 
 principle. The sale in that case was by a trustee under a power in a will, 
 which authorized him to sell when a majority of the testatrix's children 
 should advise a sale. The court was of opinion that the consent of the 
 major part of the children living when the power was to be exercised was 
 sufficient, 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 a decree, 
 the purchaser would not have been compelled to complete the contract. Had 
 the court pronounced an erroneous decree, having all parties in interest 
 before it, the decree would, indeed, have been subject to reversal by a higher 
 court, but the title of the purchaser would have remained undisturbed. In 
 Dunfee v. Childs, 45 W. Va. 155; 30 S. E. 102, it was said that the title of 
 the purchaser falls with the reversal of a decree, 1st, where he is a party to 
 the suit with an interest in the cause; 2nd, where the decree was reversed 
 for want of necessary parties: and 3rd, where the decree reversed is that 
 which confirmed the sale whether he was a party to the suit or not.
 
 CAVEAT EMPTOE. 91 
 
 only. In the former event it is conceived that the purchaser would 
 be excused from completing the purchase, and that in the latter 
 ovent he would be required to pay the purchase money and accept 
 a conveyance. 1 Thus, if the court decree a sale of testator's lands 
 in pursuance of an erroneous construction of his will, all parties in 
 interest being before the court, it is apprehended that the error 
 would be no objection to the title wherever the rule that the rever- 
 sal of a judgment does not affect the rights of a purchaser under 
 the judgment is observed. On the other hand, if infants, having an 
 interest under the will, have not been brought before the court in 
 the manner provided by law, the judgment of the court is absolutely 
 void as to them, and the land in the hands of the purchaser being 
 subject to their demands upon their arrival at majority, it would 
 seem clear that the purchaser would be relieved from his bid. 8 It 
 Las been frequently said that a purchaser at a judicial sale cannot 
 question the regularity of the proceedings prior to the decree under 
 which he purchased. 3 This, it is obvious, means only errors and 
 irregularities prior to the sale that would make the decree voidable ; 
 that is, reversible on appeal or in some direct proceeding, and not 
 errors or other matters, such as want of jurisdiction or fraud, that 
 would make the decree absolutely void and open to collateral attack, 
 for it is clear that the purchaser showing such want of jurisdiction 
 
 '2 Jonea on Mortgages, 1647; Freeman Void Jud. Sales, p. 45 (3d ed.) ; 
 L'orer Jud. Sales, p. 65. Trapier v. Waldo, 16 S. C. 276; Bulow v. Witte, :J 
 S. C. 323. Wright v. Edwards, 10 Oreg. 307 ; McCulloch v. Estes, 20 Oreg. 
 349; 25 Pac. 724. 
 
 In Cline v. Catron, 22 Grat. ( Va. ) 378, the curator of an idiot's estate and 
 lands brought a suit for a sale of the lands and reinvestment of the proceeds, 
 and at a sale under decree in the cause, himself purchased the lands. The 
 sale was confirmed, in violation of a statute which provided in express terms 
 that the plaintiff, the curator, should not be admitted as a purchaser. It was- 
 afterwards objected that title derived through such purchaser was, by reason 
 of the premises, insufficient; but it was held that the court, having had juris- 
 diction to make the sale, the confirmation thereof was mere error, for which 
 the decree might have been reversed, but could not be attacked in a collateral 
 proceeding. 
 
 3 Cox v. Cox, 18 D. C. 1. A more accurate expression of the rule is found in 
 Sutton v.' Schonwald, 86 N. Car. 198, 204; 41 Am. Rep. 455. whore it is said 
 tliat a purchaser who is no party to the proceeding is not bound to look 
 beyond the decree, if the facts necessary to give the court jurisdiction appear 
 on the face of the proceedings. And in James v. Meyers, 41 La. Ann. 1100. 
 it was said that while the purchaser is not, as a general rule, bound to look 
 bevond the decree, he is still bound to see that the court had jurisdiction.
 
 92 MARKETABLE TITLE TO BEAL ESTATE. 
 
 before confirmation of the sale could not be compelled to complete 
 the contract. 
 
 The cases illustrating the proposition that a judgment merely erro- 
 neous cannot be made the subject of collateral attack, are almost 
 endless. A number of instances have been given in the notes below, 
 in which the title of a purchaser, immediately or derivatively, under 
 a judicial sale, has been 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 Mass. 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 was granted upon a certificate from the judge of probate, not 
 authorized by the circumstances of the case. A purchaser at a judicial sale-can- 
 not object to the title on the ground that more of an estate was sold than was 
 necessary 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 Grat. (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. C.) 108; 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 
 of sale 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, 84 Ky. 14, it 
 was contended that a court had no power to order a sale of a homestead, subject 
 to the life interest of the debtor, and that such a judgment was void for want of 
 jurisdiction, but it was held that while the court erred in making the order, it 
 had 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 was entered for the full amount of a penal bond instead of 
 the damages for a breach of the bond, awarded by the jury, it was held error, but 
 not such as could affect the title of a purchaser under the judgment. Wales v. 
 Bogue, 31 111. 464. A decree in chancery against unknown heirs is not void 
 because no affidavit was filed that they were unknown. It is voidable only on 
 appeal. Hynes v. Oldham, 3 T. B. Mon. (Ky.) 266; Benningfield v. Reed, 9 B. 
 Mon. (Ky.) 102. If a guardian ad litem be appointed for an infant and he actually 
 answers, a decree based thereon will not be absolutely void, though there was no 
 actual judicial notice of the suit given the infant. Bustard v. Gates, 4 Dana (Ky.), 
 429; Bank U. 8. v. Cochran, 9 Dana (Ky.), 395; Benningfield v. Reed, 8 B. Mon. 
 (Ky.) 100. A statute providing that before a sale is ordered in partition the court
 
 CAVEAT EMPTOR. 93 
 
 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- 
 
 shall 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. 95. 
 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 ad litem 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 gave 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 coxirt had jurisdiction. Saltonstall v. Riley, 28 Ala. 
 164; 65 Am. Dec. 334. 
 
 1 See Black on Judgments, 261 et seq. 
 
 *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
 
 94 MARKETABLE TITLE TO REAL 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 
 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 rem, 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- 
 ants, but if jurisdiction of the res be wanting, for example, if the 
 
 present; and, third, the point decided must be, in substance and effect, within 
 the issue." Munday v. Vail, 34 N. J. Law, 422. 
 
 '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 the 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 res 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 its 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 res is obtained by a seizure 
 under process of the court, whereby it is held to abide such order as the court 
 may make concerning it. The power to render the decree or j udgment 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 the subject- 
 matter of the cause." 
 
 * Black Judgmts, 240. 
 
 1 Cooper v. Reynolds, 10 Wall. (U. S.) 308; Voorhees v. Bank of U. S., 10 Pet. 
 (TJ. S.) 449. These are leading cases, and in them it was held that defects and 
 irregularities in the affidavit and publication of notice in proceedings by attach- 
 ments against non-residents, and the fact that the record does not show compli- 
 ance with all the statutory requisites in such cases, did not go to the jurisdiction 
 of the court, and did not, therefore, render the judgment in the cause absolutely
 
 CAVEAT EMPTOB. 95 
 
 trust subject consist of lands lying in another State and consequently 
 beyond the jurisdiction of the court, a decree of the court directing 
 a sale of those lands will be absolutely void. 1 And, generally, it 
 may be laid down as a rule that if from any cause or in any respect, 
 the court have not jurisdiction to render the judgment or decree 
 under which a judicial sale is made, a purchaser at such sale will not 
 acquire a title that will be safe from the attacks of parties to such 
 judgment or of those 'claiming under them. 2 Collateral attack in the 
 sense in which it is here used means, of course, attack in a collateral 
 proceeding by some one who is bound by the judgment, either as 
 party or privy, such as the defendant himself, his heirs and assigns. 
 These cannot maintain ejectment against the purchaser or his assigns 
 unless the proceedings were absolutely void for want of jurisdic- 
 tion. 8 But the title of a purchaser at a judicial sale may always be 
 
 void, though they were errors for which the judgment might be reversed. Such 
 proceedings are essentially in rem ; the judgment or decree binds nothing but 
 the property levied upon, and the court acquires jurisdiction by an actual levy, 
 notwithstanding the defective service of process on the defendant. In Ohio 
 several cases decide that a statutory proceeding for the sale of a decedent's 
 lands for the payment of his debts is essentially in rem, and that, though the 
 heir was required to be made a party to the proceeding, the failure to serve 
 process on him did not oust the court of its jurisdiction and invalidate the title of 
 a purchaser. Sheldon v. Newton, 3 Ohio St. 494, 506, citing Robb v. Irwin, 15 
 Ohio, 689; Snevely v. Lowe, 18 Ohio, 368. An attachment against a non-resi- 
 dent is a proceeding in rem, and after the return of the officer "levied on 
 the property of the defendant" the jurisdiction has fully attached, and it 
 becomes a cause in court. Sutherland v. De Leon, 1 Tex. 250; 46 Am. Dec. 100. 
 The principle established by the case of Cooper v. Reynolds, 10 Wall. (U. S.) 
 308, and stated in the text does not seem to have been recognized in all of the 
 States. Thus in New York it has been held that a judgment founded on an affi- 
 davit for an order of publication against a non-resident which fails to state that 
 the defendant could not be found within the State "after due diligence" is void 
 for want of jurisdiction, and that a purchaser thereunder acquires no title. 
 McCracken v. Flanagan. 127 N. Y. 493; 141 N. Y. 174; 36 N. E. Rep. 10. 
 
 1 As was held in Contee v.. Lyons, 19 D. C. 207. 
 
 'See cases cited post, "Doubtful Title," ch. 31, 297, notes; Stansbury v. 
 Inglehart, 20 Dist. Col. 134; Frost v. Atwood, 51 Mich. 360; Calvert v. Ash. 
 47 W. Va. 480; 35 S. E. 887. A sheriff's deed under a judgment void on its 
 face for want of jurisdiction does not even make a cloud on the title which 
 will sustain a bill quia timet. Holland v. Johnson, 80 Mo. 34. A purchaser 
 at an execution sale under a void judgment for want of service of process 
 acquires no title. Roberts v. Stowers, 7 Bush (Ky.), 295. 
 
 " It is hardly necessary to say here that an independent action or proceeding by 
 a party to a judgement, which has for its sole object the vacation of the judgment.
 
 96 
 
 MARKETABLE TITLE TO REAL ESTATE. 
 
 overthrown by one not a party or privy to such proceedings, who 
 can show a better title in himself ; that is, a title paramount to that 
 which passed under the judgment or decree of the court. A 
 stranger to the record, however, cannot, of course, avail himself of 
 want of jurisdiction on the part of the court, or of any error or 
 irregularity in the proceedings, whether they render the judgment 
 absolutely void or voidable only. 1 
 
 Jurisdiction of the person consists in power over the person of 
 the defendant, obtained by the service of process or by the volun- 
 tary appearance of the defendant in the progress of the cause. If 
 the court have not jurisdiction of the cause upon other grounds, a 
 judgment founded upon process, insufficient of itself, or insufficiently 
 executed, to bring the defendant into court, is absolutely void. 2 
 
 upon the ground of fraud, surprise or mistake, is not a "collateral attack " in the 
 sense in which that expression is generally used. That is a direct attack, and is 
 always admissible; otherwise every defendant would be at the mercy of fraudu- 
 lent officers of the court colluding with the plaintiff to deprive him of his prop- 
 erty. Thus an officer's return of service of process may be impeached in a 
 direct proceeding after judgment. Black on Judgments, 288, and cases there 
 cited. The writer does not remember to have seen in any of the books a definition 
 of the terms "direct " and " collateral " attack as used in reference to the validity 
 of judgments, probably because they have been considered too plain to require 
 definition. " Direct attack " would seem to consist in some proceeding, either 
 by motion, petition, appeal or writ of error in the suit in which the judgment 
 was rendered, or to consist in a separate suit, usually in equity, between the 
 original parties or their privies, having for its sole object the reversal or vacation 
 of such judgment either for error, fraud, mistake or like fatality in the rendition 
 or procuration of the judgment. " Collateral attack " would seem to consist in 
 an attempt to show the invalidity of the judgment in any proceeding between 
 the parties or their privies, which does not have for its sole object the vacation of 
 the judgment, such, for example, as an action against the purchaser for the pur- 
 chase money, ejectment against the purchaser, trespass to try title and the like; 
 or an action by the purchaser to recover the possession, or to recover back the 
 purchase money or the like. This seems sufficiently clear. It has been held, 
 however, that ejectment by the execution debtor against a purchaser under the 
 execution upon the ground that the sale and proceedings thereafter are void is a 
 direct and not a collateral attack. Gue v. Jones, 25 Neb. 634; 41 N. W. Rep. 555. 
 If this decision be sound, the question what is and what is not "direct" or " col- 
 lateral " attack will be involved in much obscurity and doubt. 
 
 1 Swiggart v. Harber, 4 Scam. (111.) 364; 39 Am. Dec. 418. 
 
 'Mercantile Trust Co. v. So. Park Res. Co., (Ky.) 22 S. W. Rep. 314. An 
 invalid order of publication against a non-resident heir is a fatal objection to a 
 title obtained through proceedings in which such order was made. Menifee v.
 
 CAVEAT EMPTOR. 97 
 
 Jurisdiction of the subject-matter consists in the right to enter- 
 tain the suit, having regard to the nature of the cause of action and 
 of the relief sought. Thus, if the court should take jurisdiction of 
 a cause in plain violation of a statute which prescribes and limits its 
 jurisdiction, it is conceived that a judgment therein rendered would 
 be absolutely void, and a title dependent thereon, such as a pur- 
 chaser could not be required to take. 1 A court may be said to have 
 jurisdiction of the subject-matter of a suit when it has the right to 
 proceed to determine the controversy or question in issue between 
 the parties, or grant the relief prayed. 2 If the judgment or decree 
 be entirely aside from the issue raised in the record, it will be abso- 
 lutely void and treated as a nullity in a collateral proceeding. 3 To 
 this subdivision, namely, want of jurisdiction of the subject-matter 
 must, for want of a more precise classification, be referred those 
 cases in which a court has transcended its powers in any respect 
 other than a mere misconception of the law, or misapplication of 
 the law to the facts. Thus, where the clerk of a County Court has 
 
 Jiarye, (Va.) 4 S. E. Rep. 726. If the court take jurisdiction of a party to the 
 suit as being of age, he cannot attack the proceedings collaterally and show that 
 he was an infant. He must assert his rights in some direct proceeding to vacate 
 the judgment or decree that has been rendered against him. England v. Garner, 
 90 N. Car. 197. 
 
 1 An example of a title under a judicial sale void for want of jurisdiction of the 
 subject-matter is found in the case of Stansbury v. Inglehart, 20 D. C. 134. The 
 statute law of the District of Columbia permits a Chancery Court to sell the lands 
 of an infant held jointly or in common with another. It was held that this did 
 not extend to a case in which the interest of the adult tenant was in possession 
 and that of the infant in expectancy, and that, therefore, the court had no juris- 
 diction to decree the sale of an infant's estate in remainder, and that a purchaser 
 thereunder acquired no title. 
 
 * Language of the court in Hope v. Blair, 105 Mo. 85; 16 S. W. Rep. 595. 
 
 *This rule is illustrated by the case of Munday v. Vail, 34 N. J. Law, 418. 
 This was a suit in ejectment against a purchaser at a judicial sale, in a suit to set 
 aside a voluntary conveyance. The only relief prayed in the last-named suit was 
 that the conveyance should be declared void as to the plaintiff, but the decree- 
 went further and declared the deed to be void even as between the parties thereto. 
 This decree was declared a nullity and judgment was entered for the plaintiff in 
 ejectment. So, also, in Corwith v. Grifflng, 21 Barb. (N. Y.) 9, where a decree 
 confirming a report of commissioners in partition, who had in their allotment 
 embraced lands not embraced in the pleadings, was held null and void as to such 
 lands. 
 
 13
 
 98 MABKETABLE TITLE TO REAL ESTATE. 
 
 made a defective certificate of acknowledgment of a deed by a mar- 
 ried woman, it was held that the court had no power or jurisdiction 
 to make an order directing the clerk to execute a second certificate, 
 properly setting forth the facts, and that a title depending upon 
 such certificate could not be sustained. 1 Care must be taken, how- 
 ever, to distinguish between cases in which the court errs in assum- 
 ing jurisdiction, and those in which the error consists in a misappli- 
 cation of the law to the facts of the case. 
 
 Jurisdiction of the res consists of power over property, real or 
 personal, sought to be disposed of by judgment or decree in the 
 cause. If the proceeding is essentially in rem, jurisdiction is 
 obtained by a seizure under process of the court, whereby the prop- 
 erty is held to abide such order as the court may make concerning 
 it. 8 It is also necessary that property sought to be made the sub- 
 ject of a decree or judgment of the court shall lie within the terri- 
 torial jurisdiction of the court. A court of one State has no power 
 to decree a sale of lands lying in another State, and the title of a 
 purchaser derived through such a sale is bad. 3 In some cases it has 
 been said that upon collateral attack of a judgment, if the record 
 does not show the necessary jurisdictional facts, their existence will 
 be presumed, in the absence of evidence to the contrary.* It may 
 be doubted whether this is an accurate statement of the rule ; the 
 admission of extraneous evidence to show the non-existence of 
 
 1 Elliott v. Piersol, 1 Pet. (U. 8.) 328. The proceeding in which the court 
 directed the amended certificate to be made appears to have been altogether 
 ex parte. The order was made on the motion of the purchaser about ten years 
 after the original certificate was made. If the proceeding had been inter partet 
 and the power of the court to make the order had been disputed, it would be 
 difficult to distinguish the case from one in which the court errs in compelling a 
 married woman to execute a deed, or from any other case in which it errs in 
 decreeing that a particular thing be done. To the principle stated in the text is 
 to be referred also the case of Driggers v. Cassaday, 71 Ala. 529, where it was 
 held that a probate court had no jurisdiction to order a sale of lands for delin- 
 quent taxes. 
 
 1 Black on Judgments, 271, 273, 276; Thompson v. Tolmie, 2 Pet. (U. 8.) 
 157; Grignon v. Astor, 2 How. (U. 8.) 319; Florentine v. Barton, 2 Wall. (U. 8.) 
 308. 
 
 Rorer Jud. Sales, 58; Contee v. Lyons, 19 D. C. 207. 
 
 4 Evans v. Ashby, 22 Ind. 15. The leading case of Thompson v. Tolmie, 2 
 Pet. (U. 8.) 157, decides, as we have seen, that extraneous evidence cannot be 
 received to show want of jurisdiction.
 
 CAVEAT EMPTOK. 99 
 
 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 praemmuntur rite et 
 solenniter esse acta. 1 Especially will such a presumption be made 
 
 'Black on Judgments, 271, 273, 276. Thompson v. Tolmie, 2 Pet. (U. 8.) 
 157; Grignon v. Astor, 2 How. (U. S.) 319; Parker v. Kane, 22 How. (U. 8.) 1; 
 4 Wis. 1; 65 Am. Dec. 483. Duncanson v. Hanson, 3 App. Cas. (D. C.) 361. 
 Menefee v. Marye, (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, Homer 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. 180; 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. 23 Ind. 15. 
 But where it affirmatively appears from the record, as by the statement con-
 
 300 MARKETABLE TITLE TO REAL ESTATE. 
 
 when the record is very ancient. 1 The 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.* 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 BO 
 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. 38. 
 In Ford v. Walsworth, 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 want 
 of jurisdiction if it did not appear that an account of the personal estate and of 
 the debts of the decedent was presented to the surrogate, showing a necessity for 
 the eale, even though the presentment of the account is recited in the order of 
 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 that every- 
 thing necessary to give the court jurisdiction had transpired at the time the order, 
 judgment or decree was made. 
 
 1 Shackelford v. Miller, 9 Dana (Ky.), 273; Baker v. Coe. 20 Tex. 428. 
 
 * Black on Judgments (2d ed.), 276; Grignon v. Astor, 2 How. (U. S.) tit, 
 340, leading case. In Dorsey v. Kendall, 8 Bush (Ky.), 294. 298, it was held that 
 n judgment, upon service by publication, could not be collaterally attacked upo 
 the ground that the order of publication had been obtained upon a false affidavit 
 or a false return of the sheriff. A judgment subjecting the lands of a non-resi- 
 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 that 
 while recitals ia the record cannot be contradicted in a collateral proceeding, they 
 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 mis- 
 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 conse- 
 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 
 persons interested, vacate the judgment, orders and subsequent proceedings in 
 the cause by which he is deprived of his rights.
 
 CAVEAT EMPTOI?. 101 
 
 was bound by a decree for sale in a suit 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. 
 No 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. 8.) 157. 
 
 1 Burke v. Elliot, 4 Ired. L. (N. C.) 355, 359; 43 Am. Dec. 142. 
 
 '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 j urisdiction 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. Dreu- 
 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 void. 
 
 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
 
 102 
 
 MARKETABLE TITLE TO REAL ESTATE. 
 
 The question, " When 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 be 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 powers. In most of the States there are certain tribunals whose 
 authority is wholly derived from statutes, who are 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 
 minutes or memorials are not dignified with the character of a record. And these 
 are undoubtedly 'inferior' courts within the meaning of the rule." 
 
 1 See Given v. McCarroll, 1 Sm. & M. (Miss.) 351. Laughman v. Thompson, 6 
 Sm. & M. (Miss.) 259. Burke v. Elliott, 4 Ired. L. (N. C.) 355, 358; 42 Am. Dec. 
 142, where it was said that a judgment against one not a party is void, and that
 
 CAVEAT EMPTOR. 103 
 
 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 Skinner 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 
 y. 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 land 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. 
 
 * Thornton v. Mulquinne, 12 lo. 549; Babbitt v. Doe, 4 Ind. 355, temble. 
 
 1 Black on Judgments, 278.
 
 104 MARKETABLE TITLE TO REAL ESTATE. 
 
 rule destroys a great source of frivolous objections to title, and 
 materially lessens the labors 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. But they have not passed without dissent, and decisions 
 in conflict with the principles upon which they have been rested 
 may be 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 cases in point collected in a recent work 
 upon judgments, in which the whole subject of collateral attack is 
 philosophically and perspicuously treated. 1 
 
 The importance of these rules cannot be overestimated. If a title 
 derived through a judicial sale may be overturned by matters in 
 pais affecting the jurisdiction of the court, concerning which the 
 most cautious purchaser cannot inform himself, there would be no 
 safety in purchasing under a judgment or decree, and such titles 
 would be 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 be 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 outlay 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 be declared insufficient upon grounds other than 
 want of jurisdiction to render the judgment or decree under which 
 the sale was made. There may be proceedings in a cause which are 
 no part of the original res judicata, and which are never passed 
 upon until drawn in question in some subsequent proceeding involv- 
 ing the title of the purchaser. 2 Such, it is conceived, would be a 
 conveyance to the purchaser, the sale not having, as yet, been con- 
 
 1 1 Black Judgments, ch. 12, p. 297. 
 
 'Upson v. Howe, 3 Strobh. (8. C.) 108; 49 Am. Dec. 633.
 
 CAVEAT EMPTOR. 105 
 
 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. 8 A decree directing the distribution of 
 the purchase money arising from the sale 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. traud 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. 
 
 In Singletary v. Carter, 1 Bailey L. (8. C.) 467; 21 Am. Dec. 480, a levy made 
 by a deputy sheriff under an execution, in which he himself was plaintiff, waa 
 held void, and a sale and deed in pursuance thereof inoperative to vest title in 
 the purchaser. 
 
 Freeman Void Jud. Sales, 44; Rorer Jud. Sales, 3, 16, 107, 129. 
 
 4 Agun v. Shannon, (Mo.) 15 S. W. Rep. 757. 
 
 Harrison v. Harrison, 1 Md. Ch. 831. 
 
 Ante, 48. 
 
 T Fennors Case. Co. Rep. pt. 8. p. 77; Vandever v. Baker, 18 Pa. St. 121, Mtor; 
 Wilson v. Smith, 22 Grat. (Va.) 493; Lancaster v. Wilson, 27 Qrat. (Va.) 624. 
 
 5 Pa. St. 216; 47 Am. Dec. 408. See, also, Rhoads v. Selin, 4 Wash. C. C. (U. 
 8.) 715. 
 
 U
 
 106 MARKETABLE TITLE TO REAL ESTATE. 
 
 pute at an execution sale against the husband. The premises con- 
 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 
 prima 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 par- 
 ties in interest otherwise deprived of their rights. 3 It is a fraud 
 
 'Morris v. Gentry, 89 N. Car. 248, 252, where the point was obiter; citing, 
 however, University v. Lassiter, 83 N. Car. 38; Ivey v. McKinnon, 84 N. Car. 
 651; Sulton v. Schonnald, 86 N. Car. 198; 41 Am. Rep. 455; Gilbert v. James, 86 
 N. Car. 244. 
 
 * Freeman Void Jud. Sales, 40. In Sumner v. Sessions, 94 N. Car. 371, a 
 distinction was drawn between cases in which the officer selling purchased 
 directly at his own sale, and those in which he purchased from a purchaser at 
 his own sale, holding that in the former case the sale is a nullity and open to 
 collateral attack, and in the latter case that the sale could only be vacated by 
 some direct proceeding instituted for that purpose. See, also, Rutherford v. 
 Stamper, 60 Tex. 447; Dodd v. Templeman, 76 Tex. 57; 13 S. W. Rep. 187; 
 Fisher v. Wood, 65 Tex. 200. McLaurin v. McLaurin, 106 N. C. 331; 10 S. E. 
 Rep. 1056. 
 
 1 Freeman Void Jud. Sales, 40. Patton v. Thompson, 2 Jones (N. Car.), 285; 
 67 Am, Dec. 222. Even though the purchaser gives a fair price. Lancaster v.
 
 CAVEAT EMPTOR. 107 
 
 also if the commissioner or officer making the sale himself purchases 
 the land ; but a party to the suit, having it in his power to resist the 
 confirmation of such a sale and failing to do so, will not, after the 
 lapse of a considerable time, be permitted to file a bill attacking 
 the sale. 1 It is common to except cases of fraud, mistake and surprise 
 in laying down the rule that the title of a purchaser at a judicial 
 sale cannot be overturned by attacking in a collateral proceeding 
 the judgment under which the sale was made. It is clear that a 
 judgment founded in fraud or mistake is not conclusive upon the 
 injured party. But if land be purchased by a party to fraudulent 
 proceedings under which the sale was had, or by a party to a judg- 
 ment or decree founded upon mistake, it seems that the sale should 
 be vacated in some direct proceeding between the parties rather 
 than by way of collateral attack. 2 It has been so held in a case in 
 which certain lands were embraced in a decree for sale by mistake. 8 
 The right of a purchaser at a void judicial sale in a proceeding to 
 enforce a lien or incumbrance, or to subject property to the pay- 
 ment of a debt or charge, to be substituted or subrogated to the 
 benefit of such debt or lien that has been satisfied from the fund 
 arising from such sale has been frequently declared. 4 
 
 Wilson, 27 Grat. (Va.) 624. Merwin v. Smith, 1 Gr. Ch. (N. J.) 182; Hodgson v. 
 Farrell, 2 McCart. (N. J.) 788. If a purchaser at a judicial sale participates in a 
 fraud in making the sale that fact may, in a collateral proceeding, be shown in 
 avoidance of the sale. Griffith v. Bogert. 18 How. (U. S.) 158. 
 
 1 Walker v. Ruffner, 32 W. Va. 297; 9 S. E. Rep. 265; Newcomber v. Brooks, 
 16 W. Va. 32. 
 
 England v. Garner, 90 N. Car. 197; Hare v. Holloman, 94 N. Car. 14; Sumner 
 v. Sessions, 94 N. Car. 871; Syme v. Trice, 96 N. Car. 243; 1 S. E. Rep. 480; 
 Tyson v. Belcher, 102 N. Car. 112; 9 S. E. Rep. 634. 
 
 Jones v. Coffey, 97 N. Car. 347; 2 S. E. Rep. 165. This was an action to 
 recover lands sold by mistake under decree in a cause to which the now plaintiffs 
 were parties. The court said: "The plaintiffs contend that if the land they seek 
 to recover by this action was embraced by and sold under the decree in the action 
 mentioned, it was so by mistake and misapprehension. It appears that that 
 action is not yet determined. If so, the plaintiffs ought to seek their remedy if 
 they have any in it; if it is determined, then by an independent action." Loyd 
 v. Malone, 23 111. 43; 74 Am. Dec. 179; Keuchenbeiser v. Beckert, 41 111. 172; 
 Lloyd v. Kirkwood, 112 111. 829, 338; Griswold v. Hicka, (111.) 24 N. E. Rep. 68. 
 
 Hudgin v. Hudgin, 6 Grat. (Va.) 320; 52 Am. Dec. 124; Haymond v. Cam- 
 den, 22 W. Va. 180; Hull v. Hull, (W. Va.) 18 S. E. Rep. 49. In this case the 
 court, by BRANNON, J., after declaring the rule stated in the text, continued:
 
 108 MARKETABLE TTTT.E TO RFAL ESTATE. 
 
 53. SATYRS BY EXECUTOBS AND A DMTTTISTRATOBS. Sale 
 in pursuance of power in wilL Sales by executors and adminis- 
 trators are of two kinds : (1) Sales under a power contained 
 in a decedent's will, and (2) Sales under judicial authority for 
 the payment of the decedent's debts. Sales of the first kind, 
 that is, sales in pursuance of a power, do not require judicial 
 sanction in the first instance, nor confirmation after they have been 
 made ; the legal title is vested in the executor or administrator by 
 the will, and his authority to sell is complete as soon as the formal- 
 ities of the law in respect to probate of the will and qualification of 
 the personal representative have been complied with, and the con- 
 tingencies provided for in the will have transpired. 1 
 
 It has been broadly stated that the maxim caveat emptor applies 
 in all of its strictness to sales bv executors and administrators. 8 This 
 
 w 
 
 is true enough in respect to the validity of legal proceedings whence 
 the power is derived, and, perhaps, in respect to restrictions or limi- 
 tations upon the power in the testator's will. But no reason is per- 
 ceived why, in case the testator himself had no title to the lands, a 
 purchaser under a power contained in the will, should, while the 
 contract is executory, be compelled to pay the purchase money with 
 the certainty of eviction before him. At least, it would seem, that 
 in such a case the maxim caveat emptor should be confined to cases 
 in which the defects of title were such as the purchaser might have 
 discovered by the exercise of ordinary diligence, and that in this 
 respect a distinction may be made between cases in which the sale 
 is made under a power and those in which it is made under a judicial 
 license. This view is supported by the leading case of Garnett v. 
 Macon, 8 in which a sale of lands was made by an executor under a 
 power in the will for the payment of debts. It was held that the execu- 
 tor could not compel specific performance of the contract unless he 
 
 "Principles of jtrstice demand this, and courts of equity have raised 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 the disposition as well as the power of equity to adopt 
 means to accomplish right than this of substitution accorded purchasers under 
 void proceedings whose money has gone to satisfy liens good against the debtor." 
 
 1 Woerner Law of Administration, 464 ; Freeman Void Jud. Sales, 9. 
 
 *Woerner Law of Administration 484. 
 
 1 2 Brock. (C. C.) 213. Also the case of Altgelt v. Mernitz (Tex. Civ. App.) , 
 83 S. W. 891.
 
 CAVEAT EMI'TOR. 109 
 
 was able to convey a clear title. The opinion was by Chief Justice 
 MARSHALL, and there was no adversion 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 em/ptor 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 
 
 1 Daviea v. Hughes, (Va.) 11 8. E. Rep. 488. 
 
 'Ante, 52. 
 
 Woerner Law of Adm. 484; Rorer on Jud. Sales (2d ed.), 476; Freeman 
 Void Jud. Sales, 48; Schouler on Eire. (2d ed.) 515. Worthington v. 
 McRoberts, 9 Ala. 297; Corbett v. Dawkins, 54 Ala. 282; Burns v. Hamilton, 
 33 Ala. 210; 70 Ara. Dec. 570; Boiling v. Jones, 67 Ala. 508. Probate 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. & 8. (Pa.) 444; King v. Gunnison, 4 Pa. 
 St. 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,
 
 110 MARKETABLE TITLE TO KEAL ESTATE. 
 
 rale has been carried so far that it has 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.* 
 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, \s,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 confirmation 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 lands of his intestate for distribution on the ground that 
 it cannot be equitably divided among the heirs, is a proceeding in 
 rem, and a sale 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 
 material fact he must pay the purchase money after confirmation of 
 the sale, even though he gets no title. 5 If the purchaser from an 
 
 39 Tex. 177. A harsh application of the rule stated in the text will be found in the 
 case of Boiling v. Jones, 67 Ala. 508, where a widow, who purchased the lands 
 of her deceased husband at a sale by his administrator, was compelled to pay for 
 a part to which she was entitled as a homestead. STONE, J. , dissenting. The 
 rule applies whether the sale by the administrator be public or private. Kirk- 
 land v. Wade, 61 Ga. 478. 
 
 1 Thompson v. Hunger, 15 Tex. 523; 65 Am. Dec. 176; Hawpe v. Smith, 25 
 Tex. Supp. 448. See, also, Loudon v. Robertson, 5 Bl. (Ind.) 276. 
 
 *In Walton v. Reager, 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 
 fraud '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 
 had been a prior sale by the intestate, whether the same was known or unknown 
 to the administrator, if the purchaser had no knowledge of it, thus withholding 
 application of the maxim caveat 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 cases and those in which the title was originally defective. 
 But see Ward v. Williams, 45 Tex. 617, where this dictum is overruled. 
 
 Smith v. Arnold, 5 Mason (U. S.), 414, 420. 
 
 4 See Rorer on Jud. Sales, 362; 2 Woerner Am. Law of Admn. 1059. 
 
 Qarrettv. Lynch, 45 Ala. 204; Bums v. Hamilton, 83 Ala. 210; 70 Am. Dec. 570.
 
 CAVEAT EMPTOR. Ill 
 
 administrator or executor has received a conveyance it is immaterial, 
 with respect to his 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 agree that the 
 
 1 Hale v. Marquette, 69 Iowa, 376; Mitchell v. McMullen, 59 Mo. 252. 
 
 1 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. & 8. (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. 
 
 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.
 
 112 MARKETABLE TITLE TO HEAL ESTATE. 
 
 sale shall be free from incumbrances, 1 and if an incumbrance exist, 
 the purchaser must take subject thereto. Nor can he refuse to pay 
 the purchase money on the ground that the title was advertised to 
 be good. 2 Nor has the administrator a right to represent that the 
 title is good. He should offer for sale merely such right, title or 
 interest in the estate as 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 But 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 statu quo.* 
 
 1 Bickley v. Biddle, 33 Pa. St. 276. But see Reiner's Appeal, (Pa. St.) 12 All. 
 Rep. 850, where it was held that an executor has a right, when making a sale, to 
 declare that the purchaser shall take free of an incumbrance on the premises, and 
 that the estate must reimburse the purchaser if he be compelled to discharge the 
 lien. 
 
 'Halleck v. Guy, 9 Cal. 181; 70 Am. Dec. 643. A number of authorities will 
 be found collected in the briefs of counsel and in the opinion of the court in this 
 case. 
 
 1 Schouler on Executors (2d ed.), 212. 
 
 4 Le Moyne v. Quimby, 70 111. 399. 
 
 8 Hickson v. Linggold, 47 Ala. 449 ; Fore T. McKenzie, 58 Ala. 115, provided the 
 purchaser does not, with knowledge of the fraud, permit the sale to be confirmed. 
 Crayton v. Hunger, 9 Tex. 285; Able v. Chandler, 12 Tex. 88; 62 Am. Dec. 518, 
 where the sale 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. Ives v. 
 Pierson, 1 Freem. Ch. (Miss.) 220. As to whether a prior conveyance by the 
 administrator or the intestate entitles the purchaser to relief, see Ward v. Wil- 
 liams, 45 Tex. 617, criticising Walton v. Reager, 20 Tex. 103. Banks T. Ammon, 
 27 Pa. St. 172. Love v. Berry, 22 Tex. 371. " If the administrator makes repre- 
 sentations which be knows to be untrue for the purpose of deceiving the pur- 
 chaser, who is thereby deceived, without that degree of negligence on his 
 part 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; Linton v. Porter, 31 111. 120.) This does not dispense with the applica- 
 tion of the rule caveat emptor to such sales. I know of no case where that rule 
 has ever been 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 decided by this court, in the absence of fraud the purchaser at such sale 
 must not only look out for the title, but for the quality of the article which he 
 purchases. Nor can the administrator bind the estate by a warranty of either. 
 If he assumes to do so he would be personally responsible upon such warranty.
 
 CAVEAT EMPTOB. 113 
 
 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 was 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. 
 
 Gwin v. McCarroll, 1 Sm. & M. (Miss.) 351; Laughman v. Thompson, 6 Sm. 
 & M. (Miss.) 259; Worten v. Howard, 2 Sm. & M. (Miss.) 530; 41 Am. Dec. 607. 
 Compare Mellen v. Boarraan, 13 Sm. & M. 100. Contra, Bishop v. O'Connor, 69 
 HI. 431. 
 
 '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, 89 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. 876; 
 Riddle v. Hill, 51 Ala. 224. Campbell v. Brown, 6 How. (Miss.) 280. Bartee r. 
 Tompkins, 4 Sneed (Tenn.), 628. 
 
 15
 
 114 MARKETABLE TITLE TO REAL ESTATE. 
 
 be, in most instances, palpable upon the f^ce of the proceeding*, 
 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. 2 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 lima. 8 In the State of 
 New York a purchaser at a probate sale may refuse to complete hi 
 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 be 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 bona fide 
 purchaser from the administrator. The repose and security of such 
 purchaser in their titles is of the greatest interest to the public, for if 
 they could be evicted or disturbed in their possession because of 
 such errors and omissions, probate sales would be 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 to be placed than 
 those of the estates of decedents, made by order of those courts to 
 which the laws of the States confide 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, 46. 
 
 1 Post, this chapter, 65. 
 
 1 Lamkin v. Reese, 7 Ala. 170. See, also, Lampton v. Usher, 7 B. MOD. (Ky.)57. 
 
 4 See the case of Wilson v. White, 109 N. Y. 59, in which a purchaser from an 
 executor selling under a surrogate's order was relieved from his bid on the 
 ground that the title was defective. See, also, Headrick v. Yount, 22 Kans. 344. 
 
 4 Poor v. Boyce, 12 Tex. 140. 
 
 Grignon v. Astor, 2 How. (U. S.) 243.
 
 CAVEAT EMPTOB. 115 
 
 of jurisdiction, errors and irregularities in judicial proceedings gen- 
 erally, as affecting the title of a purchaser thereunder, applies to 
 sales by executors, administrators, or other officers under probate 
 licenses. 1 It may be useful, however, to present here several 
 instances in which the title of a purchaser at such a sale has been 
 declared sufficient or insufficient with respect to the validity of pro- 
 bate proceedings. It has been held that an order for the sale of the 
 lands of a decedent, made by the probate court before petition filed 
 by the administrator for that purpose, and before a return of a cita- 
 tion against the heirs as required by statute, is void for want of 
 jurisdiction, and may be attacked in a collateral proceeding. 2 So, 
 also, where the proceedings show upon their face that the adminis- 
 trator was not entitled to letters of administration. 8 So, where no 
 order of publication of the application for license to sell is made, as 
 required by statute. 4 So, also, where such application tails to set 
 forth the names of the heirs at law, and the citation to answer is not 
 directed to all the heirs, as required by law. 5 The jurisdiction of a 
 probate court to order a sale of the lands of a decedent is founded 
 upon the fact that there are debts due by him, and a decree founded 
 upon a petition for such sale which contains no averment that the 
 estate is indebted is not simply reversible for error, but is void and 
 open to collateral attack. 6 Payment of the purchase money in full 
 and occupancy of the premises will not give a purchaser at a pro- 
 bate sale title as against the heir, imless the sale has been confirmed 
 
 1 Ante, p. 76. Upon the general proposition that the validity of a probate sale 
 cannot be attacked in a collateral proceeding, except upon the ground of want of 
 jurisdiction to order the sale, see Rorer on Judicial Sales, 349; Freeman Void 
 Jud. Sales, chap. 2; 2 Woerner Am. Law of Admn. 488. 
 
 'Finch v. Edmondson, 9 Tex. 504; Campbell v. Brown, 6 How. (Miss.) 106, 
 230; Puckett v. McDonald, 6 How. (Miss.) 269; Gwin v. McCarroll, 1 Sm. & M. 
 (Miss.) 361. 
 
 Haugv. Primeau, 98 Mich. 91; 57 N. W. Rep. 25; Templeton v. Falla Land 
 Co., 77 Tex. 55; 13 S. W. Rep. 964, and Texas cases there cited. 
 
 4 Cunningham v. Anderson, (Mo.) 17 S. "W. Rep. 972. 
 
 6 In re John's Estate, 21 Civ. Proc. R. (N. Y.) 326; 18 N. Y. Supp. 172. 
 
 Lyons v. McCurdy, 90 Ala. 493; 8 So. Rep. 52; citing Tyson v. Brown, 64 
 Ala. 244; Wilburn v. McCalley, 63 Ala. 436; Quarles v. Campbell, 72 Ala. 64; 
 Robertson v. Bradford, 70 Ala. 385; Meadows v. Meadows, 73 Ala. 356; Land- 
 ford v. Dunkton, 71 Ala. 594; McCorkle v. llhea, 75 Ala. 213; Ballard v. John*, 
 80 Ala. 32; Morgan v. Famed. 83 Ala. 367; 8 So. Rep. 798.
 
 116 MARKETABLE TITLE TO BEAL ESTATE. 
 
 and a conveyance made. 1 A sale of more than enough land to pay 
 the debts of an estate, or a license to sell enough for that purpose 
 only, is absolutely void. 2 If the statute law provides that the lands 
 of a decedent shall not be 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 unless the petition or 
 complaint avers the insufficiency of the personalty to pay the debts. 8 
 If notice of application by the administrator for license to sell be 
 not given the heirs and other persons 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 the guardian ad litem of infant 
 heirs makes the subsequent proceeding reversible for error and not 
 absolutely void, and, therefore, does not affect 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 of 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 Pa. St. 132; 20 Atl. Rep. 553; Morgan's App., 110 
 Pa. St. 271; 4 Atl. Rep. 506; Armstrong's App., 68 Pa. St. 409; Demmy's App., 
 43 Pa. St. 169. 
 
 J Gregson v. Tuson, (Mass.) 26 N. E. Rep. 874. Contra, Comstock v. Crawford, 
 3 Wall. (U. S.) 396; Hodges v. Fabian, (So. Car.) 9 8. E. Rep. 820. 
 
 3 Needham v. Salt Lake City, (Utah) 26 Pac. Rep. 920; citing Comstock T. 
 Crawford, 3 Wall. (U. S.) 396, dictum. 
 
 'Mickel v. Hicks, 19 Kans. 578; 27 Am. Rep. 161; Chicago, Kan. & Neb. R. Co. 
 v. Cook, 43 Kans. 83; 22 Pac. Rep. 988; Harrison v.. Harrison, 106 N. Car. 282; 
 11 S. E. Rep. 356. This, however, was not a case of collateral attack. The rule 
 ic North Carolina was otherwise as to infants until by statute service of summons 
 was required to be made on the infant. Hare v. Hollomon, 94 N. Car. 14. 
 
 & Coffin v. Cook, 106 N. C. 376; 11 S. E. Rep. 371. 
 
 * Atwood v. Frost, 51 Mich. 360; 73 Mich. 67. Other instances in which judg- 
 ments or orders of probate courts have been held void for want of jurisdiction 
 and open to collateral attack will be found in Kertchem v. George, 78 Cal. 597; 
 
 21 Pac. Rep. 372; Rogers v. Clemmans. 26 Kans. 522; Coulson v. Wing, (Kans.) 
 
 22 Pac. Rep. 570; Black v. Dressell, 20 Kans. 153. In McNally v. Haynes, 59 
 Tex. 583, it was held that a purchaser at a probate sale was chargeable only with 
 notice of the application for the sale, the order of sale and the sale itself, with 
 accompanying exhibits, if any, and that beyond these he was not bound to look. 
 
 1 Wyman v. Campbell, 6 Port. (Ala.) 219; 31 Am. Dec. 677.
 
 CAVEAT EMPTOR. 117 
 
 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. 8 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. 
 
 * Williams v. Johnson, (N. 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. 
 
 Richardson v. Butler, 82 Cal. 174; 23 Pac. Rep. 9. 
 
 Ante, 50. McMillan v. Reeves, 102 N. Car. 550; 9 8. 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. 
 1 Freeman Void Jud. Sales, 40. 
 
 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
 
 118 MARKETABLE TITLE TO REAL ESTATE. 
 
 ground will not relieve the purchaser from the contract, if the fraud 
 appeared upon the face of the proceedings, and might have been 
 discovered by the exercise of due diligence. 1 
 
 j 57. 8HEK.ur.irS SALES. Want of title in execution defendant. 
 General rul<es. The title which a purchaser at an execution sale 
 will acquire may be worthless for three reasons : (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 to 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 levy and sale after the return day of the process 
 under which the officer acts. 
 
 The maxim or rule caveat emptor applies with peculiar force to 
 cases in which there is a complete want of title in the execution 
 defendant.* In most of the States there is no report or confirma- 
 tion of the sale ; no time is given for examination of the title ; the 
 
 therefor, was fraudulently procured by the purchaser in collusion with the 
 administrator, the title thereunder would be open to attack. 
 
 1 Rice T. Burnett, 39 Tex. 177. 
 
 * Freeman on Executions, | 335; Herman on Executions, p. 395; Freeman Void 
 Jud. Sales, 48; Roreron Jud. Sales, p. 603; Title "Sheriffs," Am. &Eng. Encyc. 
 of L. The Monte Allegro, 9 Wh. (U. S.) 616. Here the sale was of personal 
 property, but the case has been constantly cited in applying the same principle 
 to sales of realty under execution. Lang v. Waring, 35 Ala. 625; 60 Am. Dec. 
 533; Goodbar T. Daniel, 88 Ala. 583; 7 So. Rep. 254; Thomas v. Glazener, 90 
 Ala. 537; 8 So. Rep. 153. Danly T. Rector, 10 Ark. 211; 1 Am. Dec. 242. John* 
 T. Frick, 22 Cal. 512. Methvin v. Bexley, 18 Ga. 551. England v. Clark, 4 
 Scam. (Dl) 486; Walbridge v. Day, 31 DL 379; 83 Am. Dec. 227; Bassett T. 
 Lockard, 60 111. 164; Alday T. Rock Island Co., 45 I1L App. 62. Vest T. Weir, 
 4 Blackf. (Ind.) 135; Walden v. Gridley, 36 Ind 523. Holtzinger v. Edwards, 51 
 Iowa, 383. Treptow T. Buse, 10 Kans. 170. Hand v. Grant, 10 Smed. & M. 
 (Miss.) 514, 43 Am. Dec. 528. Miller v. Finn, 1 Neb. 254 Mervin Y. Vanlier, 7 
 N. J. Eq. 34 Vattier v. Lytle, 6 Ohio, 477; Corwin v. Benham, 2 Ohio St. 36; 
 Creps T. Baird, 3 Ohio St 277. Weidler v. Bank, 11 Serg. & R. (Pa.) 134; 
 AuwertCT v. Mathiot, 9 Serg. & R. (Pa.) 399; Friedly v. Scheetz, 9 Serg. & R, 
 (Pa.) 159; 11 Am. Dec. 691; Smith T. Painter, 5 Serg. & R. (Pa.) 223; 9 Am.
 
 CAVEAT EMPTOR. 119 
 
 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 title 
 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; Earth v. Gibbs, 3 Rich. L. (S. Car.) 316; Wingo v. Brown, 14 Rich. 
 (8. 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, the 
 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, 18 Ga. 551.
 
 120 MARKETABLE TITLE TO BEAL ESTATE. 
 
 emptor will be fonnd in cases of sales bj sheriffs or other minis- 
 terial officers under executions, attachments, or other legal process. 1 
 The rule caveat emptor applies with additional force if the pur- 
 chaser at a sale under execution was warned that the title was in 
 dispute. 2 The purchaser at a sale under execution not only takes 
 merely snch title as the execution debtor may have, but he takes 
 subject to all equities which may exist against the latter,* whether 
 he has notice of them or not. 4 A purchaser at an execution sale is 
 not entitled to the privileges of a purchaser without notice. Thus. 
 it has been held that he takes subject to the right of a third person 
 to require a conveyance of the bare legal tide from the execution 
 debtor where such person had purchased from the debtor and paid the 
 purchase money without taking a conveyance before the execution 
 sale. 5 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 lit pendent had not been 
 docketed, as the law required.' So, also, where the execution plain- 
 tiff had agreed with the defendant that the lien of his judgment 
 should be postponed and made subsequent to a junior mortgage. 7 
 But inasmuch a? a purchaser at a sale under execution succeeds to 
 all the rights of the execution plaintiff, the rule that he takes sub- 
 ject to all equities against the execution defendant must obviously 
 be taken with the qualification, namely, that if, under the Registry 
 Acts, 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, foreclosing a mortgage, is a "sheriff's sale/' within the 
 meaning of the role cateat emptor. Walbridge v. Day 31 DL 379; 83 Am. Dec. 
 227. 
 
 1 Oberthier v. Stroud, 33 Tex. 522; Boro v. Harris, 13 Lea (Tenn.), 36. 
 
 'Osterman v. Baldwin, 6 Wall (U. S.) 116; Bell T. Flaherty, 45 Miss. 694. See 
 cases cited Vol. 6, U. S. Dig. (1st series) 141, 2202. If the execution defendant 
 have only an equitable estate, and has not paid the entire purchase money, a 
 purchaser under the execution acquires only his interest, and can get a title only 
 by doing those things upon performance of which the debtor himself would hare 
 been enabled to demand a conveyance of the title. Walke v. Moody, 65 N. Oar. 
 509; Morgan v. Bouse, 53 Mo. 219. 
 
 4 Vannoy T. Martin, 6 Ired. Eq. (N. Oar.) 169; 51 Am. Dec. 41& 
 
 * Georgetown v. Smith, 4 Cranch C. C. (U. 8.) W. 
 
 Roffina v. Henry, 78 N. Oar. 342. 
 
 1 Frost v. Tonkers Sav. Bank, 70 N. T. 553; 26 Am. Rep. 627.
 
 CAVEAT EMPTOR. 121 
 
 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. 8 Nor 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 debtor's " 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.) 233; 41 Am. Dec. 262; Riley v. Million, 4 
 J. J. M. (Ky.) 395; Fosdick v. Burr, 3 Ohio St. 471. 
 
 Nickles v. Haskins, 15 Ala. 619; 50 Am. Dec. 154; Spoor v. Phillips, 27 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. 
 
 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 
 with 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. 525. 
 
 Cunimings' Appeal, 23 Pa. St. 509, citing Ontario Bank v. Lansing, 2 
 Wend. (N. Y.) 260, and Post v. Leet, 8 Paige Ch. (N. Y.) 336, which, however, 
 was a sale by a master in chancery, and not by the sheriff. But see Davis v. 
 Hunt, 2 Bailey (S. C.), 412, where an execution plaintiff, who purchased at 
 his own sale under the mistaken supposition that his lien on the property 
 was the oldest, was compelled to complete his purchase. 
 
 Wood v. Levis, 14 Pa. St. 9; Am. & Eng. Encyc. of L. " Sheriffs." 
 16
 
 122 MARKETABLE TITLE TO REAL ESTATE. 
 
 In certain of the States, a purchaser under execution, who has 
 been evicted by one having a title paramount to that of the execu- 
 tion debtor, has been permitted to recover the purchase money from 
 the execution plaintiff upon the ground that, ex cequo et bono, the 
 purchaser is better entitled to the money than the execution cred- 
 itor is to withhold it from him. 1 This doctrine, however, is plainly 
 inconsistent with the rule caveat emptor. If the purchaser cannot 
 detain the unpaid purchase money, a fortiori he cannot recover it 
 back ; and if he cannot recover it back from the execution debtor, 
 a fortiori he cannot recover it back from the execution creditor. 
 Therefore, it has been frequently held that want of title in the 
 debtor gives the purchaser no right of action against the creditor. 2 
 And these cases, it is believed, are sustainable both upon principle 
 and authority. Of course, however, the creditor may, by his con- 
 
 1 Henderson v. Overton, 2 Yerg. (Tenn.) 393; 24 Am. Dec. 492. Chapman r. 
 Brooklyn, 40 N. Y. 372. Citizens' Bank v. Freitag, 37 La. Ann. 71; Gaines T. 
 Merchants' Bank, 2 La. Ann. 479; Mclntosh v. Smith, 2 La. Ann. 756. It will 
 be remembered that the rule caveat emptor is not strictly observed in Louisiana, 
 the civil law prevailing there. In New York, the execution purchaser, if evicted 
 because of irregularity in the proceedings, or error in the judgment on which 
 the execution was issued, may recover the purchase money from " the person for 
 whose benefit the property was sold." Code C. P. N. Y. 1479, 1480; Gerrard's 
 Titles to Real Estate (3d ed.), 797. Several cases have been cited to this proposi- 
 tion which decide nothing more than that money paid under a mistake of fact 
 may be recovered back. Among others are Rheel v. Hicks, 25 N. Y. 289; Kings- 
 ton Bank v. Eltinge, 40 K Y. 391; 100 Am. Dec. 516; Kelly v. Solari, 9 M. & W. 
 54; Miller v. Duncan, 6 B. & C. 671. The case of Moses v. McPherlan, 2 Burr, 
 1012; 1 W. Bl. 219, has been relied upon in support of this doctrine, but it can 
 hardly be considered in point, for there the defendant had agreed in writing to 
 indemnify the plaintiff against his indorsement of certain notes, on which indorse- 
 ment the defendant afterwards recovered judgment, in violation of his agreement. 
 
 U. S. v. Duncan, 4 McLean (U. S.), 607. Dunn v. Frazier, 8 Blackf. (Ind.) 
 432. Whitmore v. Parks, 3 Humph. (Tenn.) 95; Kimbrough r. Burton, 3 
 Humph. (Tenn.) 110. Judice v. Kerr, 8 La. Ann. 462. England v. Clark, 4 
 Scam. (111.) 486, the cburt saying: " The plaintiff has received no more than he 
 was legally entitled to, and, although it came from the purchaser and he has lost 
 the consideration for which he paid his money, it was not the procurement or 
 agency of the plaintiff that induced the purchase or occasioned the loss. He 
 allowed the law to take its course without interposition or control, and by receiv- 
 ing from its officer the fruits of its process, he violated no legal or equitable 
 obligation, and incurred neither the one nor the other, to refund that which he 
 was entitled to receive."
 
 CAVEAT EMPTOR. 123 
 
 duct, make himself liable to the purchaser, as where, knowing the 
 title to be worthless, he induces the purchaser to bid by representing 
 it to be good. 1 
 
 58. Exceptions. The rule that a purchaser of a worthless title 
 at a sale under execution is without relief is undoubtedly sustained 
 by the weight of authority in America. 2 But exceptions to that 
 rule have been declared. Thus, it has been broadly laid down that 
 a sale of land on execution will be set aside on the motion of the 
 purchaser if it appear that the execution defendant had no interest 
 in the land when sold ; s especially if the execution plaintiff himself 
 be the purchaser. 4 In some of the States the right of the purchaser 
 to relief when there is no title is fixed by statute. 5 It the execution 
 be levied by mistake on the lands of a stranger, the levy and sale 
 will be set aside. 6 So, also, where an execution has been levied on 
 
 1 Schwinger v. Hickock, 53 N. Y. 280 
 
 s Ante, 57. 
 
 1 Rocksell v. Allen, 3 McLean (U. S.), 357. Ritter v. Henshaw, 7 Iowa, 97, an 
 early Iowa case, enforces the rule caveat emptor against the purchaser under cir- 
 cumstances of much hardship. Dean v. Morris, 4 Green (Io.), 312. 
 
 4 Freeman Void Jud. Sales, 49. Warner v. Helm, 1 Gil. (111.) 220, 234. Wat- 
 son v. Reissig, 24 111. 281; 76 Am. Dec. 746. Lansing v. Quackenbush, 5 Cow. 
 (N. Y.) 38. Ontario Bank v. Lansing, 2 Wend. (N. Y.) 260, tumble. Ritter v. 
 Henahaw, 7 Iowa, 97. In Alabama if the execution plaintiff purchase the prop- 
 erty the execution is satisfied pro tanto, whether the defendant had or had not 
 title to the property. Thomas v. Glazener, 90 Ala. 537; 8 So. Rep. 153, especially 
 if he had notice of the want of title. McCartney v. King, 25 Ala. 681; Good bar 
 v. Daniel, 88 Ala. 583. 
 
 * Hammersmith v. Espy, 19 Iowa, 444. "When any person shall purchase at 
 sheriff 's sale any real estate on which the judgment upon which the execution 
 issued was not a lien at the time of the levy, and which fact was unknown to the 
 purchaser, the district court shall set aside such sale on motion," etc. Revision, 
 3321. This has been construed to mean that if the judgment debtor has no 
 interest in the land sold the purchaser may have the sale set aside. Chambers v. 
 Cochran, 18 Iowa, 159; but see Holtzinger v. Edwards, 51 Iowa, 383, where a 
 narrower construction is given to the statute. But the* purchaser cannot under 
 this statute have relief if he buys with notice of the want of title. Cameron v. 
 Logan, 8 Iowa, 434; Jones v. Blumenstein, 77 Iowa, 361. In North Carolina and 
 California there are also statutes giving a remedy to purchasers of worthless 
 titles at execution sales. Halcombe v. Loudermilk, 3 Jones L. (N. C.) 491. 
 Code Civil Proc. Cal. 708. 
 
 De Wolf v. Mallett, 3 Dana (Ky.), 214. In this case, however, the sale WM 
 set aside at the instance of the execution plaintiff, the purchaser consenting.
 
 124 MARKETABLE TITLE TO REAL ESTATE. 
 
 personal property to which the execution defendant had no title, the 
 purchaser, having been compelled to satisfy the true owner, has 
 been 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 
 be permitted 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 emptor as applied to execution sales. The pur- 
 chaser, it is presumed, might, by examining the public records, have 
 informed himself of the existence of the prior conveyance which 
 defeated the title. 
 
 In Louisiana, where the civil law prevails, it seems that the pur- 
 chaser at an execution sale may, if the title prove worthless, recover 
 the purchase money either from the plaintiff or the defendant in the 
 execution. 3 
 
 1 Maguire v. Marks, 28 Mo. 193; 75 Am. Dec. 121. Richardson v. McDougall, 
 19 Wend. (N. Y.) 80. Sanders v. Hamilton, 3 Dana (Ky.), 550. 
 
 * Bartlett v. London, 7 J. J. Marsh. (Ky.) 641. The case is very brief, and its 
 importance justifies complete reproduction here. The report consists only of 
 an opinion by ROBERTSON, Ch. J., which was as follows: "The only question 
 we 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 was sold 
 (for which the bond was given), had no title to the land. It sufficiently appears 
 that D. 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 sufficiently 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 his 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, be reversed and the cause remanded, with instructions to 
 perpetuate the injunction." See, also, Brummel v. Hunt, 3 J. J. Marsh. (Ky.) 
 709. 
 
 3 See Citizens' Bank v. Freitag, 37 La. Ann. 71.
 
 CAVEAT EMPTOR. 125 
 
 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, 
 
 '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 far, 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 
 an 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 be and
 
 126 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 
 em/ptor? 
 
 60. Rights 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 been made with that contingency in view. 8 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 sheriff's 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. Comm'th T. 
 Dickinson, 5 B. Mon. (Ky.) 506; 43 Am. Dec. 139; McGhee v. Ellis, 4 Litt. (Ky.) 
 244; 14 Am. Dec. 124; Wolford v. Phelps, 2 J. J. Marsh. (Ky.)31. In Dwight's 
 Case, 15 Abb. Pr. (N. Y.) 259 (O. S.), a purchaser at an execution sale had been 
 induced to bid by the representations of the plaintiffs attorney that the title was 
 good, the fact being that the defendant had conveyed away the premises before 
 the 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.), 620. 
 
 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, MSS. and Towles v. Turner, 3 
 Hill (So. Car.), 178; Tucker v. Gordon, 4 Desaus. Eq. (S. C.) 53. 
 
 * Auwerter v. Mathiot, 9 Serg. & R. (Pa.) 897, 403; Cumming's Appeal, 23 Pa. 
 St. 509, 512. 
 
 Ante, 57.
 
 CAVEAT EMPTOR. 127 
 
 vendor and purchaser when the vendor derives title through a 
 sheriffs 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. 8 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. 9 
 
 1 Post, ch. 30, 297. 
 
 1 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. 
 
 1 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. Fairfield, 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. Skiles, 38 W. Va. 
 404. Hoe's Case, 5 Coke, 90 (Lond. ed. 1826, vol. 3, p. 188); Goodyere v. Ince, 
 Cro. Jac. 246; Eyre v. Woodflne, 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. 482. 
 Clark v. Lockwood, 21 Cal. 220. Phillips v. Coffee, 17 111. 154; 63 Am. Dec. 
 857. Shaffer v. Bolander, 4 Greene (Io.), 201. 
 
 Post, 62. Webber v. Cox, 6 T. B. Mon. (Ky.) 110; 17 Am. Dec. 127. 
 Minor v. Natchez, 4 Smed. & M. (Miss.) 602; 43 Am. Doc. 4S8. Hcndrickson v.
 
 128 MARKETABLE 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 be 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 bond 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. 8 But it is not to be denied that they 
 strongly encroach upon, and are, perhaps, inconsistent with the 
 doctrine caveat emptor 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 be 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. Rosevelt, 13 Johns. (N. Y.) 97. Riddle v. Bush, 27 Tex. 675. 
 
 1 Roberts v. Stowers, 7 Bush (Ky.), 295. Collins v. Miller, 64 Tex. 118. 
 
 * Freeman Void Jud. Sales, 48. Bynum v. Govan, (Tex.) 29 S. W. Rep. 1119; 
 Halsey v. Jones, (Tex.) 25 S. W. Rep. 696. The same principles have been 
 applied in respect to probate and judicial sales proper. See those titles, ante, 
 this chapter. 
 
 Boy kin v. Cook, 61 Ala. 472, the court saying: " 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, 77 111. 55. This, however, 
 was a judicial sale. Burns v. Ledbetter, 56 Tex. 282. The cases of Dodd v. Nelson, 
 90 N. Y. 243, and Verdin v. Slocum, 71 N. Y. 345, are cited to the text proposi- 
 tion in Freeman on Void Jud. Sales, 48, but it will be found on examination 
 that these were judicial or quasi judicial sales, in which the purchaser was merely 
 resisting a confirmation of the sale, on the ground that the title was defective 
 a right which is conceded to him, we believe, everywhere.
 
 CAVEAT EMPTOR. 129 
 
 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 " H. W. V. ; " * 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. 
 
 * Freeman on Executions, 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.) 12 
 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. 
 
 * Cunningham v. Buck, 45 Ark. 267. 
 
 17
 
 MARKETABLE TITLE TO REAL ESTATE. 
 
 valne ; 1 where the sheriff sold the fee simple instead of first offering 
 the rents and profits for seven years, as required by statute ; * where 
 the sheriff sold premises in the hands of a receiver without leave of 
 the court ; * 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 ; 5 
 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 
 this 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. 369, and cases there 
 cited. See Freeman Void Jud. Sales, 27. Contra, Shaffer v. Bolander, 4 
 Greene (Io.), 201. 
 
 'Gantly v. Ewing, 3 How. (U. S.) 707, disapproving Doe v. Smith, 4 Blackf. 
 (Ind.)228. 
 
 French v. 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 (N. Y.), 67; 3 N. Y. Supp. 383; Bank v. Risley, 19 N. Y. 389. 
 
 4 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. 
 
 Terry v. Cutler, 4 Tex. Civ. App. 70; 23 8. W. Rep. 539. 
 
 Shaffer v. McCracken, (Iowa) 58 N. W. Rep. 510. Norgren v. Edson, 51 Minn. 
 567; 53 N. W. Rep. 876. Hardin v. Clark, 1 Tex. Civ. App. 565; 21 S. W. Rep. 
 977. If a judgment has heen satisfied, though not canceled of record, a bonafide 
 purchaser under an execution issued on the judgment will get no title. Wood v. 
 Colvin, 2 Hill (N. Y.), 566; 38 Am. Dec. 598; Carpenter v. Stilwell, 11 N. Y. 61; 
 Craft v. Merrill, 14 N. Y. 456. He succeeds merely to the position of the judgment 
 creditor, subject to all equities in favor of the judgment debtor, without regard 
 to the question of notice. Frost v. Yonkers Sav. Bank, 70 N. Y. 553; 26 Am. 
 Rep. 627. See contra, Nichols v. Dissler, 31 N. J. L. 461; 86 Am. Dec. 219. 
 
 Cowen v. Withrow, (N. Car.) 19 8. E. Rep. 645.
 
 CAVEAT EMPTOB, 131 
 
 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 he is legally authorized to do that 
 which he assumes to do virtute qflicii" 1 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.* 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. 
 
 1 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 8. W. 
 Rep. 100. 
 
 Freeman Void Jud. Sales, 41.
 
 132 MARKETABLE TITLE TO KEAL, ESTATE. 
 
 63. TAT PAT/PS The maxim caveat emptor applies with great 
 strictness to tax sales. 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 taxes 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 
 States, however, he is by statute in a manner subrogated 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 interest. 
 In other States, in case of a sale void for errors and omissions in 
 the proceedings the purchaser is allowed to have recourse upon the 
 city or county by whose authority the sale and conveyance was 
 made. 2 . 
 
 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 caveat 
 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 back that which has been paid. 4 Such a sale 
 
 1 Blackwell on Tax Titles, 994; Black, on Tax Titles (2d ed.), 463. The 
 cases and authorities will be f6und collected in these works. The limits of this 
 treatise will not admit of their consideration here at length. 
 
 8 Black, on Tax Titles (2d ed.), 464, 477, et seq. ; Logansport v. Case, 124 Ind. 
 254; 24 K E. Rep. 88; Watkins v. Winings, 102 Ind. 330; 1 N. E. Rep. 638; 
 Parker v. Goddard, 81 Ind. 294. Russell v. Hudson, 28 Kans. 99. Merriam v. 
 flauen, 23 Neb. 217. Hart v. Smith, 44 Wis. 213. 
 
 3 Boyd v. Schlisenger, 59 N. Y. 301, distinguished in Bensel v. Gray, 80 N. Y. 
 517. 
 
 4 Rawle Covts. (5th ed.) 338 n.; 26 Am. & Eng. Encyc. of L. 934, 940; Sutton 
 v. Sutton, 5 Grat. (Va.) 234; 56 Am. Dec. 109; Peterman v. Laws, 6 Leigh (Va.),
 
 CAVEAT EMPTOB. 133 
 
 stands upon the same footing as would a sale by the trust grantor 
 himself, with express disclaimer of good title. But 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. 
 
 'This, upon the principle that any kind of a conveyance will pass the benefit 
 of covenants for title. Post, " Covenant of Warranty," 157. 
 
 'Clarke v. Wilson, 56 Miss. 753; Bonner v. Lessly, 61 Miss. 392.
 
 134 MARKETABLE TITLE TO EEAL 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. 2 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. 3 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. 6 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 v. North, 27 Mo. 73. 
 
 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. 344; Deverell 
 T. Bolton, 18 Ves. 511, overruling Pope v. Simpson, 5 Ves. 145. 
 Clark v. Post, 113 N. Y. 17; 20 N. E. Rep. 573. 
 
 In re Browning, 2 Paige Ch. (N. Y.) 64. In this case the title was referred 
 though the sale had been confirmed. See, also, Brown v. Christie, 27 Tex. 78; 
 84 Am. Dec. 607. 
 
 Shipp v. Wheless, 33 Miss. 647. Wiley v. White, 3 Stew. & P. (Ala.) 355. 
 'Pferrman v. Wattles, 86 Mich. 254; 49 N. W. Rep. 40.
 
 CAVEAT IMPTOR, 135 
 
 implied, is entitled to a conveyance of the premises free from 
 incumbrances, 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. 
 ' Sheld. Sub. 1.
 
 MARKETABLE TITLE TO REAL 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 5 emptor is subordinated to the higher 
 
 1 Dufour v. Camfranc, 11 Mart. (La.) 615; 13 Am. Dec. 360. 
 
 * Frost v. Atwood, 73 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 
 can be 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 does 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." 
 Bishop v. O'Conner, 69 111. 431, distinguishing Kinney v. Knoebel, 51 111. 112; 
 Bassett v. Lockwood, 60 111. 164. Salmond v. Price, 13 Ohio, 383; 43 Am. Dec. 
 204. 
 
 Richmond v. Marston, 15 Ind. 134. Disapproved in Muir v. Berkshire, 52 
 Ind. 149. 
 
 ^Richmond v. IVIarston, 15 Ind. 134. Disapproved in Muir v. Berkshire, 52 
 Ind. 149. 
 
 8 Valle v. Fleming, 29 Mo. 163; 77 Am. Dec. 557, the court saying that the law 
 bases " 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 
 stood chargeable by a purchase of property made under process of the law, and, 
 therefore, has the equitable right to be reimbursed out of the estate or property 
 of the debtor." In Wilson v. Holt, 83 Ala. 528; 3 So. Rep. 321, it was doubted 
 whether the rule caveat emptor would extend to defects which would not be dis- 
 closed by an examination of the claim of title or to secret equities which could 
 not have been discovered by the exercise of ordinary diligence.
 
 CAVEAT EMPTOR. 137 
 
 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. (N. Y.) 
 212. Seller v. Lingerman, 24 Ind. 264; Muir 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. 
 
 * 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, 
 6 Tex. 290; 51 Am. Dec. 769; Andrews v. Richardson, 21 Tex. 287; Morton 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 8. 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. 2S9; 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. 
 
 * 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, 
 
 18
 
 138 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. (Va.) 320; 52 Am. 
 Dec. 124; Sands v. Lynham, 27 Grat. (Va.) 291; 21 Am. Rep. 348. Springs v. 
 Harven, 3 Jones Eq. (N. Car.) 96; Perry v. Adams, 98 N. Car. 167; 3 8. E. Rep. 
 729. Robertson v. Bradford, 73 Ala. 116; Wilson v. Holt, 83 Ala. 528; 3 So. 
 Rep. 321 f Ellis v. Ellis, 84 Ala. 348; 4 So. Rep. 868. Valle v. Fleming, 29 Mo. 
 152; 77 Am. Dec. 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 
 v. 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, 53 Miss. 94; McGee v. Wallis, 57 Miss. 638; 34 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 the payment of his debts. Levy v. Riley, 4 Oreg. 392, semble. 
 Contra, Nowler v. Coit, 1 Ohio, 519; 13 Am. Dec. 640. 
 
 1 Jones on Mortgages, 874 et seq. ; 26 Am. & Eng. Encyc. of Law, 935; 24 id. 
 261; Sheldon on Subrogation, 31, 33. The majority of the illustrations below 
 were cases of invalid foreclosure sales. Robinson v. Ryan, 25 N. Y. 320; Wins- 
 low v. Clark, 47 N. Y. 261; Miner v. Beekman, 50 N. Y. 337. Johnson T. Sand- 
 hoff, 30 Minn. 197. Honaker v. Shough, 55 Mo. 472. Frische v. Kramer, 16 
 Ohio, 125; 47 Am. Dec. 368. Curtis v. Gooding, 99 Ind. 45. Hays v. Dalton, 5 
 Lea (Tenn.), 555. Haymond v. Camden, 22 W. Va. 180; Hull v. Hull, 35 W. V. 
 155; 13 S. E. Rep. 49. Contra, Branham v. San Jose, 24 Cal. 585. 
 
 1 Geohegan v. Ditto, 2 Mete. (Ky.) 433; 74 Am. Dec. 413. If the purchaser Is 
 fuHy subrogated 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 
 possession. 
 
 Rev. Code N. Car. ch. 45, 27. Code Civ. Proc. Cal. 708; Hitchcock v. 
 Caruthers, 100 Cal. 100. Rev. St. Iowa (1865), 3321. Code Civil Proc. N. Y. 
 1440. But the purchaser will not, under this statute, be entitled to relief if ha 
 be guilty of fraud at the sale. 
 
 4 Frost v. Atwood, 73 Mich. 67. In this 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. 139 
 
 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, 9 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. 
 
 * Sheld. on Subrogation, 209; Bennett v. Coldwell, 8 Baxt. (Tenn.) 483. 
 Duncan v. Gainey, 108 Ind. 579; 9 N. E. Rep. 470. 
 
 4 Gaines v. Kennedy, 53 Miss. 103. Chambers v. Jones, 72 111. 275. Bland T. 
 Bowie, 53 Ala. 152; Goodman v. Winter, 64 Ala. 410; 38 Am. Rep. 18. Favill 
 T. Roberts, 50 N. Y. 222. 
 
 1 Chancellor WAL WORTH in Putnam v. Ritchie, 6 Paige Ch. (N. Y.) 405. 
 
 Bright v. Boyd, 1 Story C. C. (U. 8.) 478. Hatcher v. Briggs, 6 Oreg. 81.
 
 MARKETABLE TITLE TO REAL ESTATE. 
 
 66. Subrogation of purchaser where sale is valid. It has 
 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 be 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 between 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 empt&r? 
 and it has also been repudiated upon less cogent grounds, namely, 
 that the liability of the execution debtor is completely extinguished 
 by the payment of the purchase money, and that the purchaser, 
 with respect to such payment, is to be regarded as a mere volunteer. 8 
 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, 3 Blackf. (Ind.) 293, following McGhee v. Ellis, 4 Litt. (Ky.) 
 244; 14 Am. Dec. 124, a case in which the sale was of a slave to whom the exe- 
 cution debtor had 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, 
 SBiackf. (Ind.) 432; Preston v. Harrison, 9 Ind. 1; Pennington v. Clifton, 10 
 Ind. 172; Julian v. Beal, 26 Ind. 220; 89 Am. Dec. 460. Reed v. Crosthwaite, 6 
 Iowa, 219; 71 Am. Dec. 406. Moore v. Allen, 4 Bibb (Ky.), 41, where, however, 
 the purchaser seems to have been induced to bid by the fraudulent conduct of 
 the execution debtors. White v. Park, 5 J. J. Marsh. (Ky.) 603; Qeoghegan v. 
 Ditto, 2 Mete. (Ky.) 433; 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; Bassett v. 
 Lockard, 60 111. 164. 
 
 Bishop v. O'Conner, 69 111. 431. 
 
 4 Freeman on Executions, 54, 301, 352. Cross v. Zane, 47 Cal. 602. Bitter 
 v. Henshaw, 7 Iowa, 98; Ladd v. Blunt, 4 Mass. 402; Tate v. Anderson, 9 Mass. 
 92; Gooch v. Atkins, 14 Mass. 378. Magwire v. Marks, 28 Mo. 193; 75 Am. Dec. 
 121. Swaggerty v. Smith, 1 Heisk. (Tenn.) 403. 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
 
 CAVTCAT EMTTOIf. 141 
 
 inconsistent with the rule caveat emptor, for there would seem to be 
 nothing in the relations of the execution plaintiff to the parties and 
 subject-matter that would place him upon higher ground than a 
 stranger in respect to the title. There are cases which do not 
 recognize the distinction, and which hold the purchaser bound in 
 either case. 1 It would seem that the ends of justice are subserved 
 by disregarding the rule caveat emptor, whether the execution 
 plaintiff or a stranger becomes the purchaser, so far as to permit 
 either to have a new execution, the one in his own right and the 
 other as equitable assignee. 
 
 The doctrine of subrogation, being cognizable in equity only, will 
 never be applied in favor of a purchaser who has been guilty of fraud 
 in the procurement of the sale in respect to which he seeks relief. 2 
 
 Whatever doubt may exist as to the true rule with respect to the 
 right of subrogation of a purchaser at a sale under execution or by 
 an administrator, when he has been evicted by the holder of a para- 
 mount title, there would seem to be none where the purchaser payj 
 off incumbrances on the property to protect his title, and, certainly, 
 none if the price paid by him for the property was less than its fair 
 market value. The purchaser in such case will be presumed to 
 have been aware of the existence of the incumbrance and to have 
 made his bid accordingly. 8 Any other rule would operate a great 
 
 stranger or a party to the execution. Code Civil Proc. Cal. 708. Rev. Code 
 N. Car. ch. 45, 27. Code Civil Proc. N. Y. 1440. Rev. St. Iowa (1865), 
 3321. In Halcombe v. Loudermilk, 3 Jones L. (N. C.) 491, it was held that the 
 purchaser, having such a remedy by action against the execution debtor, could 
 not maintain a proceeding against him in equity for subrogation eo nomine. The 
 same principle has been applied where the sale was of personal property. Whit- 
 ing v. Brooks, 2 N. H. 79. Adams v. Smith, 5 Cow. (N. Y.) 280; Richardson T. 
 McDougall, 19 Wend. (N. Y.) 80; Piper v. Elwood, 4 Den. (N. Y.) 165. The 
 principle, however, applies without distinction to levies upon realty. Edde v. 
 Cowan, 1 Sneed (Tenn.), 290; Swaggerty v. Smith, 1 Heisk. (Tenn.) 403. 
 
 1 Vattier v. Lytle, 6 Ohio. 477; Salmon v. Price, 13 Ohio, 383; 42 Am. Dec. 
 204; Hollister v. Dillon, 4 Ohio St. 205. Perry v. Williams, Dudley (S. Car.), 44 
 Vanscoyoc v. Kimler, 77 111. 151. Freeman v. Caldwell, 10 Watts (Pa.), 10. 
 Halcombe v. Loudermilk, 3 Jones L. (N. C.), 491. 
 
 1 Sheld. Subrogation, 44; Freeman Void Jud. Sales, 54; 26 Am. & Eng. 
 Encyc. of L. 268, 269. McCasky v. Graff, 23 Pa. St. 321; 62 Am. Dec. 336; Gilbert 
 v. Hoffman, 2 Watts (Pa.), 66; 26 Am. Dec. 103. Elam v. Donald, 58 Tex. 316. 
 
 4 Walden v. Gridley, 36 111. 523; Bassett v. Lockwood, 60 111. 164. Threlkeld 
 v. Campbell, 2 Grat. (Va.) 198; 44 Am. Dec. 384. Harth v. Gibbes, 3 Rich. L. 
 (8. Car.) 316.
 
 142 MARKETABLE TITLE TO BEAL ESTATE. 
 
 injustice, for the purchaser might, by recovering the amount of the 
 incumbrances from the execution debtor, acquire the estate for a 
 trifling sum. But if the purchaser should pay the fair market value 
 for the property, and an incumbrance of which all parties were 
 ignorant should afterwards be discovered, and the purchaser should 
 be compelled to remove the same in order to protect himself, no 
 reason is perceived why he would not be as much entitled to subro- 
 gation either to the benefit of the incumbrance so discharged or to 
 the lien of the judgment under which he purchased as if he had 
 been evicted by an adverse claimant. 1 If the existence of an incum- 
 brance should be seduously and fraudulently concealed from the 
 purchaser, or if false and fraudulent misrepresentations should be 
 made to him in that regard by any one interested in making the 
 sale, he would have his action to recover damages for the deceit. 
 The purchaser, of course, cannot apply any part of the unpaid pur- 
 chase money to the discharge of prior incumbrances on the premises. 
 Whatever may be his right of subrogation as against the execution 
 debtor or other person primarily bound, he has none against the 
 creditor at whose instance the sale was made. 2 
 
 1 In Walden T. Gridley, 38 HI. 523, it was said that it might be that a pur- 
 chaser under an execution who paid off a prior judgment to protect his title 
 would have his remedy over against the execution debtor for the amount so con- 
 tributed to pay his debt. Where premises are expressly sold in partition, sub- 
 ject to all incumbrances, the purchaser cannot have the purchase money applied 
 to the discharge of an incumbrance, the existence of which was unknown to all 
 parties because of error in indexing. Buttron v. Tibbitts, 10 Abb. N. Cas. (N. 
 
 *Osterbury v. Union Trust Co., 93 TJ. S. 424. Farmers' Bank v. Peter. 13 
 Bush (Ky.), 591. Harth v. Gibbes, 3 Rich. L. (So. Car.) 316.
 
 CHAPTER VI. 
 COVENANTS WHICH THE PURCHASER HAS A RIGHT TO DEMAND. 
 
 USUAL COVENANTS. 67. 
 
 FROM GRANTORS IN THEIR OWN RIGHT. 68. 
 
 FROM FIDUCIARY GRANTORS. 69. 
 
 FROM MINISTERIAL OFFICERS. 70. 
 
 67. USUAL COVENANTS. Covenants for title, as will hereafter 
 be seen, are agreements by the vendor in solemn form, inserted in 
 the conveyance to the purchaser for his protection in case his title 
 should be afterwards overthrown, or incumbrances upon the prop- 
 erty successfully asserted. As a general rule the purchaser's right 
 to relief against the vendor, in case he should suffer loss through a 
 defective title after the contract has been executed by a conveyance, 
 depends upon the covenants which that conveyance contains. If 
 there are no covenants the almost universal rule is that the purchaser 
 is, in the absence of fraud or mistake, absolutely without relief at 
 law or in equity. 1 Consequently, the right of the purchaser to 
 require that the conveyance shall contain covenants adequate for his 
 protection, is of the most vital importance to him, and should, in 
 those States where the purchaser is held entitled to a conveyance 
 with general covenants, never be deemed to have been parted with, 
 except upon clear evidence that, by the terms of the contract, the 
 vendor was bound only to execute a quit-claim conveyance, or a con- 
 veyance without any covenants whatever. 
 
 The usual covenants for title in the American practice are those : 
 (1) of seisin ; (2) of good right to convey ; (3) against incumbrances ; 
 (4) of warranty ; (5) for quiet enjoyment, and (6) for further assur- 
 ance. 3 Of these the most important are the covenants for seisin, 
 
 1 Post, ch. 27. 
 
 4 Kent Com. 471; Rawle Covts. (5th ed.) 21; Murphy v. Lockwood, 21 111. 
 618. The following is an approved form of the several covenants for title in use 
 in America. They usually constitute the last clauses of a conveyance. Such 
 expressions as are necessary to make the covenant special or United are inserted 
 below in parentheses: "Doth hereby covenant for himself his heirs executors 
 and administrators that (notwithstanding any act matter or thing by him done) 
 he the said (vendor) is now lawfully seised of the said premises And hath good 
 right to convey the same That the same are free from all incumbrances (done 
 suffered or committed by him) And that the said (purchaser) his heirs and 
 assigns shall and may at all times hereafter freely peaceably and quietly enjoy
 
 144 MARKETABLE TIT1YK TO REAL ESTATE. 
 
 against incumbrances, and of warranty. The covenant of good 
 right to convey is embraced in that for seisin, and that for quiet 
 enjoyment in the covenant of warranty. The covenant for further 
 assurance is not generally used throughout the country. 1 The same 
 necessity does not exist for it as in England, where a very artificial 
 and complicated system of conveyancing prevails. The nature and 
 incidents of each of these covenants will be hereafter explained. 
 For our present purposes it is only necessary to say that each of 
 them is either, (1) general, that is, against the acts, claims and 
 demands of any and all persons whomsoever ; or (2) special or lim- 
 ited, that is, against the acts and claims of the grantor or of any 
 person claiming by, through or under him. A conveyance with 
 special or limited covenants only is commonly called a " quit claim," 
 and is, with respect to defects of title not arising from some act of 
 the grantor or those claiming under him, no more in effect than a 
 conveyance without covenants of any kind. 2 From what has been 
 said it follows that the question, " What are the usual covenants for 
 title ? " is to be considered in two aspects, namely, (1) whether all five 
 (or six) of the covenants can be required from the vendor, and (2) 
 
 the same without molestation or eviction of him the said (vendor) or any person or 
 persons whomsoever (lawfully claiming or to claim the same by from or under 
 him them or any of them). And that he the said (vendor) shall at all times here- 
 after at the request and expense of the said (purchaser) 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 And that he the said 
 (vendor) and his heirs all and singular the messuages and tenements etc hereby 
 granted and mentioned or intended so to be with the appurtenances took the said 
 (purchaser) his heirs and assigns against him the said (vendor) and his heirs and 
 against all and every other person or persons lawfully claiming or to claim the 
 same or any part thereof (by from or under him them or any of them) shall and 
 will by these presents warrant and forever defend." See Rawle Covts. (5th ed.) 
 p. 29. 
 
 1 Wilson v. Wood, 2 C. E. Gr. (N. J. Eq.) 216. 
 
 *The term " quit claim" is generally denned or considered to be a deed with- 
 out covenants of any kind as to the title, or a deed with special or limited cove- 
 nants for title only. Rawle Covts. (oth ed.) 30. But in those States in which 
 by statute or judicial construction general covenants of warranty are implied 
 from certain words of grant, such as the words " do hereby sell and convey " a 
 deed without express covenants for title is, of course, not necessarily a quit 
 claim, even though the words "quit claim" are employed in the operative 
 words of conveyance, if language from which general covenants can be implied 
 is used. Wilson v. Irish, 62 Iowa, 266; 17 N. W. Rep. 511; Sibley v. Bullis, 40 
 Iowa, 429. See, also, Taylor v. Harrison. 47 Tex. 454, 461; 26 Am. Rep. 304.
 
 COVENANTS WHICH THE PURCHASER HAS A RIGHT TO DEMAND. 145 
 
 whether the covenants given must be general and unlimited, or lim- 
 ited and special. 
 
 In the English practice the purchaser, in the absence of express 
 contract to the contrary, undoubtedly had the right to call for all 
 of the covenants for title. 1 Such, also, is the rule in those of 
 the American States in which the covenant of warranty is not by 
 law or custom deemed to embrace the other covenants.' But in 
 some of the States this right has been held to be limited or qualified 
 by particular expressions in the contract expressions which in 
 other States have been denied that effect. Thus in New York and 
 elsewhere it has been held that an agreement by the vendor to 
 execute a " warranty deed " obliged him to insert in his deed no 
 other covenant than that of warranty. 3 On the other hand, in 
 Indiana and elsewhere it is considered that such an agreement 
 entitles the purchaser to all the principal covenants for title. 4 So, 
 also, where the vendor agreed to convey with the " usual covenants." 5 
 If the contract be silent as to the number, nature and kinds of 
 covenants for title into which the vendor must enter, the better 
 opinion seems to be that the parties will be presumed to have con- 
 tracted in that respect with reference to the known use and custom 
 of the locality in which the land is situated.' In many of the States 
 it is not customary to insert any other covenant than that of gen- 
 
 1 2 Sugd. Vend. ch. 14, 3. 
 
 1 Post, notes 4 and 5; Murphy v. Lockwood, 21 111. 618. 
 
 Kirkendall v. Mitchell, 3 McL. (U. 8.) 144. Wilsey v. Dennis, 44 Barb. 
 (N. Y.) 354. 
 
 4 Clark v. Redman, 1 Bl. (Ind.) 379; Leonard v. Bates, 1 Bl. (Ind.) 172; Daw- 
 son v. Shirley, 6 Bl. (Ind.) 531; Linn v. Barkey, 7 Ind. 69; Bethell v. Bethell, 92 
 Ind. 318, 321. Bowen v. Thrall, 28 Vt. 382. 
 
 Wilson v. Wood, 2 C. E. Gr. (N. J. Eq.) 216; 88 Am. Dec. 231. Drake v. Bar- 
 ton, 18 Minn. 462. An agreement to execute a deed containing " the usual full 
 covenants and warranty of title " will not be satisfied by the tender of a deed 
 containing a covenant of general warranty only; the deed must contain also 
 covenants of seisin and against incumbrances. McKleroy v. Tulane, 34 Ala. 88. 
 
 Dwight v. Cutler, 3 Mich. 586; 54 Am. Dec. 105. Wilson v. Wood, 2 C. B. 
 Or. (N. J. Eq.) 216; 88 Am. Dec. 231, where held also that the question what 
 are the usual covenants in deeds in a given locality may be referred to a master 
 in chancery for inquiry and report. Henderson v. Hay, 3 Bro. Ch. 632. What 
 are usual covenants for title is, it seems, a question of fact to be determined by 
 custom and usage of the locality where the land lies. Rawle Covts. (5th ed.) 
 31. Bennett v. Womack, 3 Car. & P. 96. 
 19
 
 14(5 MARKETABLE TITLE TO REAL ESTATE. 
 
 eral warranty in a fee simple conveyance. 1 When such a custom 
 prevails, it is apprehended that the vendor could be required to 
 'enter into no other covenant for title unless the contract expressly 
 provided for other covenants. In this respect the parties will be 
 deemed to have been governed by the lex rei sites and not by the 
 lex loci contractu? But where the question is whether certain lan- 
 guage in a deed creates a particular covenant for title or what 
 covenants the deed in fact contains, the law of the place of the con- 
 tract governs. 8 In some of the States it is held that a purchaser is 
 not entitled to all the covenants for title unless the contract 
 expressly requires them. 4 
 
 The student and the practitioner in those jurisdictions in which 
 the covenant of warranty is not held to embrace all the other cove- 
 nants for title should be warned against attributing to that covenant 
 too wide a scope. At the first glance, it would appear that this 
 covenant is amply sufficient for the protection of the purchaser 
 under all circumstances. 5 This is true, as a general rule, in cases 
 where the defective title results in an eviction of the purchaser. 
 But where there has been no eviction and the grantor is neither an 
 insolvent nor a non-resident, it is very generally held throughout 
 the United States that the purchaser cannot resist the payment of 
 the purchase money, even though there has been a total failure of 
 
 1 Dickinson v. Hoomes, 8 Grat. (Va.) 353. Green v. Irving, 54 Miss. 454; 28 
 Am. Rep. 360. Leary v. Durham, 4 Ga. 601, LUMPKIN, J., saying that in a 
 practice of more than twenty-five years he had never seen a deed containing all 
 five of the covenants for title. 
 
 * Gault v. Van Zile, 37 Mich. 22, per COOLET, C. J. Here it was held that the 
 purchaser was entitled to such deed as is usual by custom of the rei sit ; this 
 in analogy to the rule that the sufficiency of a deed is to be determined by the 
 lex rei sitce. 2 Pars. Cont. 571, note h ; Hosford v. Nichols, 1 Paige Ch. (N. Y.) 
 220. 
 
 "Bethell v. Bethell, 54 Ind. 428; S. C., 92 Ind. 318, and 23 Am. Rep. 650. 
 , Here the land was in Missouri, and the deed was made in Indiana. It was held 
 that the Missouri law that certain covenants should be implied from words of 
 grant in the deed would not prevail in Indiana, so as to oblige the court to con- 
 strue the deed as containing these covenants. In another State a contrary 
 view has been taken of the law in respect to covenants which run with the 
 land. Dalton v. Taliaferro, 101 111. App. 592. 
 
 'Lounsbery v. Locander, 10 C. E. Gr. (N. J.) 554; Thayer v. Torrey, 37 N. J. 
 L. 345; Newark Sav. Inst. v. Jones, 37 N. J. Eq. 449. .. 
 
 s Stewart v. West, 14 Pa. St. 330, where GIBSON, C. J., speaking of the core- 
 nnnt of general warranty, said : " In Pennsylvania, it has been retained by 
 unprofessed scriveners as a nostrum supposed to contain the virtues of thf 
 whole five, but its potency has not been recognized l:y the bcTieh."
 
 COVENANTS WHICH THE PURCHASER HAS A BIGHT TO DEMANTX 147 
 
 the title. 1 It seems, however, that if the conveyance to the pur- 
 chaser had contained a covenant for seisin, which is broken as soon 
 as made, if the title be bad, the purchaser might detain the purchase 
 money, provided he restored the premises to the vendor.' It is 
 hardly necessary to say that these observations apply only to cases 
 where the contract has been executed by a conveyance. The cove- 
 nant of warranty cannot be treated as a covenant against incum- 
 brances, except in a few of the States, where it is held to include 
 all the other covenants .for title. 8 The necessity for the covenant 
 against incumbrances will be felt where the purchaser seeks to 
 compel the vendor to remove an incumbrance from the premises 
 which exceeds in amount the consideration of the conveyance. 4 
 
 68. FROM GRANTORS IN THEIR OWN BIGHT. Assuming 
 that, by contract, express or implied, the purchaser may require all 
 the several covenants for title, 9 the next question and the more 
 important one is whether he may insist that those covenants shall 
 be general and unlimited, and not merely limited or special. 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.' If he did not acquire the estate 
 
 ' Post, ch. 16. 
 
 Post, ch. 26. 
 
 Findlay v. Toncray, 2 Rob. (Va.) 374, 379; Wash. City Sav. Bank v. Thorn- 
 ton, 83 Va. 157; 2 S. E. Rep. 193. 
 4 Post, ch. 21. 
 
 Church v. Brown, 15 Ves. 263. In this case Lord ELDON said that if a man 
 covenanted to sell a fee simple estate free from all incumbrances, and says no 
 more, it is clear that the covenant carries in gremio, and in the bosom of it, the 
 right to proper covenants. , 
 
 2 Sugd. Vend. (14th ed.) 282, 234; 3 Powell Conv. 206, 210; Wakeman v. 
 Dutchess of Rutland, 3 Ves. Jr. 233; Lloyd v. Griffiths, 3 Atk. 267; Pickett v. 
 Loggon, 14 Ves. 239; Thackeray v. Wood, 6 B. & 8. (Q. B.) 773. The following 
 extract from the opinion of Lord ELDON, 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 under- 
 stood, 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
 
 148 MARKETABLE TITLE TO REAL ESTATE. 
 
 for a valuable consideration, his covenants must extend to the acts 
 of the last purchaser. 1 But in no case could he be required to 
 extend his covenants beyond the acts of the last purchaser. In 
 America, the rule prevailing in most of the States is that the 
 vendor's covenants must be general or unlimited, 2 and that they 
 
 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 has only an estate for life might convej 
 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 him- 
 self. 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 estate 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 ia 
 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 ia 
 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 he 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 estate of inheritance 
 we are led to expect no other covenants than those which guard against the acts 
 of the vendor and his heirs. 
 
 1 2 Sugd. Vend. (8th Am. ed.) 232. 
 
 'Witter v. Biscoe, 13 Ark. 422; Bagley v. Fletcher, 44 Ark. 153; Rudd r. 
 Savelli, 44 Ark. 145. Steele v. Mitchell, Pr. Dec. (Ky.)47; Fleming v. Harrison. 
 8 Bibb (Ky.), 171; 4 Am. Dec. 691; Vanada Y. Hopkins, 1 J. J. M. (Ky.) 293; 1 
 Am. Dec. 92; Andrews v. Ward, 17 B. Mon. (Ky.) 518; Gaithor v. O'Doherty, 
 (Ky.) 12 8. W. Rep. 306. Clark v. Redman, 1 Bl. (Ind.) 379. Faircloth v. Laler, 
 75 N. C. 551; Gilchrist v. Buie, 1 Dev. & Bat. Eq. (N. C.) 358; Henry v. Idles, 
 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 
 T. 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; Dickinson v. Hoomes, 8 Grat. (Va.) 353, 394; 
 Rucker v. Lowther, 6 Leigh (Va.), 259. Of. Remington v. Hornby, 4 Munf. (Va.) 
 140. Tavenner v. Barrett, 21 W. Va. 656, 681. Clark v. Lyons, 25 111. 106. 
 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.
 
 COVENANTS WHICH THE PTTRCHASEB HAS A RIGHT TO DEMAND. 149 
 
 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, 
 titles are more insecure than in older and more densely populated 
 sections, where few transfers of real property are made, except 
 upon the advice and assistance of competent persons. 1 In several 
 
 Dec. 414 The purchaser 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 
 peaceable possession of the vendee forever without any let, hindrance, suit, 
 molestation or trouble, entitles the purchaser to a conveyance with general 
 warranty. Slack v. Thompson, 4 T. B. Mon. (Ky.) 462. A bond to make " suffi- 
 cient 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 conveyed " 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 war- 
 ranty " 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. Burnham, 89 Ky. 
 78; 11 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 agree- 
 ment " to furnish a satisfactory abstract of title and give a quit-claim deed." 
 Pitch 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 upon pay- 
 ment by the vendee of the agreed purchase money is in legal contemplation 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 undertak- 
 ing is limited only when in plain terms so expressed. In the State of Washing- 
 ton 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 war- 
 ranty. Ankeny v. Clark, (Wash. Ty.) 20 Pac. Rep. 586. 
 
 1 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 of Covenants for Titles, observes: "It is difficult to determine by general 
 and precise rule what, on this side of the Atlantic, are 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 conveyancing differs widely in the 
 two countries. It is obvious that much of the practice which prevails where the 
 state of society has long been permanent, the titles old, and to a greater or leu
 
 MARKETABLE TITLE TO KEAL ESTATE. 
 
 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. g., a title bond, without requiring the vendor to insert provisions 
 obliging him to warrant the title generally, it will be presumed that 
 it was the understanding and intention of the parties that there was 
 to be no such warranty. 2 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. 8 An agreement to execute a deed clear of all 
 incumbrances except a certain ground rent, entitles 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 precedent to his acceptance of the title. 4 If by mistake 
 
 extent carefully examined at every purchase, loses its application in a compara- 
 tively new country, and the same covenants 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 buys in comparative ignorance of the title, and relies 
 upon such covenants for his 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 States, but even between different parts of the same State." 
 Covta. for Title (5th ed.), p. 35, referring to Whitehead v. Carr, 5 Watts (Pa.), 369, 
 and Pitcher v. Livingston, 4 Johns. (N. Y.) 14; 4 Am. Dec. 229. These remarkg 
 were approved in Dwight v. Cutler, 3 Mich. 566; 64 Am. Dec. 105. 
 
 1 See Rawle Covta. (5th ed.) 289. Kyle v. Kavanaugh, 103 Mass. 356, 359; 4 
 Am. Rep. 560. Mead v. Johnson, 3 Conn. 592; Dodd v. Seymour, 21 Conn. 480. 
 Ketchum v. Evertson, 13 Johns. (N. Y.) 359; 7 Am. Rep. 384; Gazley v. Pierce, 
 16 Johns. (N. Y.)267; Fuller v. Hubbard, 16 Cow. (N. Y.) 13; 16 Am. Dec. 423; 
 Van Eps v. Schenectady, 12 Johns. (N. Y.) 436; 7 Am. Dec. 330; Ryder v. Jenny, 
 2 Robt. (N. Y.) 68. Withers v. Baird, 7 Watts (Pa.), 229; 32 Am. Dec. 754; Espy 
 v. Anderson, 14 Pa. St. 308, 312; Cadwalader v. Tryon, 37 Pa. St. 318, 322; 
 Lloyd v. FarrelL 48 Pa. St. 78; Payne v. Echols, (Pa. St.) 15 Atl. Rep. 895. In 
 Barlow v. Scott, 24 N. Y. 40, the seller having represented that he held under a 
 warranty deed, and both parties supposing such to have been the case, the pur- 
 chaser was held entitled to require a conveyance with general warranty. 
 
 * 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. 
 
 4 Bryant v. Wilson, 71 Md. 440.
 
 COVENANTS WHICH THE PURCHASER HAS A KIOHT TO DEMATTD. 151 
 
 the purchaser accepts a quit-claim instead of a deed with full cove* 
 nants, to which under the contract he is entitled, the seller may be 
 compelled to execute a deed with such covenants. 1 And a pur- 
 chaser W!K> has been fraudulently induced to accept a quit-claim deed 
 will be entitled to relief. 2 A grantee who reconveys to his grantor 
 upon rescission of the contract, can be required to covenant only 
 against the acts of himself and those who claim under him. 8 To 
 such a covenant the original grantor will, of course, be entitled. 4 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. 5 However this may be, no ground for' 
 any such presumption can be easily perceived in a case in which 
 both parties were aware that the title was defective, and the vendor 
 sold at a fair price. 6 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 upon the title the purchaser 
 cannot be required to accept a quit-claim deed. 7 It is the duty of 
 the vendor to remove the cloud or incumbrarice, or to assume the 
 responsibility thereof by executing a deed with general warranty. 
 A person who joins in a conveyance of laud 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 specifically 
 the contract of their ancestor for the sale of his lands can be required 
 to covenant only against their own acts. 9 In the English practice 
 they are required to covenant also against the acts of the ancestor, 10 
 and there seems to be no good reason why they should not be 
 
 1 Point Street Iron Works v. Simmons, 11 R. I. 496. 
 
 'Rhode v. Alley, 27 Tex. 443. See, also, Chastain v. Staley, 23 Qa. 26. 
 
 1 Concord Bank v. Gregg, 14 N. H. 331. 
 
 4 Shorthill v. Ferguson, 47 Iowa, 284. 
 
 5 Dickinson v. Hoomes, 8 Grat. (Va.) 394. 
 
 If the title of the vendor is questionable, he should covenant generally. 
 Fearne Posth. Works, 110, 118. Browning v. Wright, 2 Bos. & Pul. 13. 
 
 T Potter v. Tuttle 22 Conn. 513. 
 
 8 Hoback v. Kilgore, 26 Grat. (Va.) 442, 445; 21 Am. Rep. 817. 
 
 Hill v. Ressegieu, 17 Barb. (N. Y.) 162. Boggess v. Robinson, 5 W. Va. 402 
 Hyatt v. Seeley, 1 Kern. (N. Y.) 56. 
 
 10 2 Sugd. Vend. (8th Am. ed.) 232. Browning v. Wright, 2 Bos. & Pul. 23.
 
 152 MARKETABLE TITLE TO HEAL ESTATE. 
 
 required so to covenant in America, at least to the extent of assets 
 which they may have received from the ancestor's estate. 1 
 
 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 maj 
 bind her separate estate in equity by her covenants. In other State* 
 it is considered that the power so to bind her separate estate depends 
 upon the terms of the instrument creating 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 ie 
 expressly denied her by statute, except by way of estoppel. 3 Where 
 such power exists no reason is perceived why the same covenants as 
 might be required of one 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 hi case he loses the estate. 3 
 
 Persons executing mortgages, 4 and, presumably, deeds of trust to 
 secure debts, unless the instrument in either case be a security for 
 the purchase money of the estate, 5 must covenant against the acts of 
 all persons whomsoever. The same covenants may be required of a 
 lessor, 8 the reason being that the title is never examined upon a 
 demise for years. 
 
 1 Holman v. Criswell, 15 Tex. 395. This was denied in Hill v. Ressegieu, 17 
 Barb. (N. Y.) 162, 167. 
 
 ' See generally as to the power of a married woman to bind her estate by cove- 
 nants for title, Rawle Covts. (5th ed.) 306 et seq. 
 
 'Post, ch. 27. 
 
 Sugd. Vend. (14th ed.) 551; Wins. Real Prop. (8th Am. ed.) 447. Crippa T. 
 Reade, 6 Term, 606 ob. In Lockwood v. Sturtevant, 6 Conn. 372, 384, the singu- 
 lar objection was made that covenants of seisin and of good right to convey in & 
 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. 
 
 Williams Real Prop. (6th Am. ed.) 447, n. 4. 
 
 Wms. Real Prop. (6th Am. ed.) 447, n. 1; Bart. Conveyancing, 75; Rawle 
 Covts. (5th ed.) 26.
 
 COVENANTS WHICH THE PUKCHASEK HAS A EIGHT TO DEMAND. 153 
 
 Tenants in common and joint tenants should covenant severally, 1 
 and the covenants of each should be extended no further than the 
 undivided share of each.* The vendor cannot be required to cove- 
 nant against acts of sovereignty, or against the public rights of the 
 State, such as the riparian rights of the public in a river. The exer- 
 cise of those rights, though resulting in an eviction, would not oper- 
 ate a breach of the covenant of warranty. 8 It seems that a bankrupt 
 cannot be compelled to execute a conveyance with covenants, 
 though it is the practice for him to give covenants. 4 
 
 69. FROM FIDUCIARY GRANTORS. One who sells property in 
 which he has no beneficial interest, for example, a trustee, 5 executor ' 
 
 1 Coe v. Harahan, 8 Gray (Mass.), 198. 
 
 Rawle Covt. (5th ed.) p. 32, citing 1 Dav. Con. (3d ed.) 114 A covenant by 
 a joint owner to the extent of his interest binds him only to that extent. Cos- 
 ter v. Mfg. Co., 1 Or. Ch. (N. J.) 467. 
 
 1 See post, 143. Bigler v. Morgan, 77 N. Y. 312. Here the vendor contracted 
 to convey by warranty deed to the purchaser a tract of land having oyster beds 
 appurtenant thereto. It was held that all tb.3 contract bound the vendor to con- 
 rey was a clear title to the upland, and such interest in 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 ven- 
 dor could not be required to warrant against them, or against parties claiming 
 privileges granted by the State. 
 
 4 Sugd. Vend. (14th ed.) 575. Waugh v. Land, Coop. 133. Ex parte Crowder, 
 2 Rose, 327. 
 
 Dart V. &P. (5th ed.) 130; 2-Sugd. Vend. (14th ed.) 574(234); Lewin Trustees (1st 
 Am.ed.),441; Rawle Covts. (5th ed.) 33. Fairclothv.Isler.75N. Car. 551; Ennis 
 v. Leach, 1 Ired. Eq. (N. C.) 416. Barnard v. Duncan, 38 Mo. 170, 181; 90 Am. 
 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. Brackenridge v. Dawson, 7 Ind. 383, 387. He may be required to 
 insert a covenant against his own acts. Dw.inel v. Veazie, 36 Me. 509; 69 Am. 
 Dec. 84. A fiduciary vendor cannot be compelled to covenant for further assur- 
 ance. Bart. Conv. 70. Worley v. Frampton, 5 Hare, 560. In Page v. Brown, 3 
 Beav. 36, it was held that executorial trustees, seeking specific performance of a 
 contract made by their testator, must enter into such covenants as the testator 
 would have been obliged to give. 
 
 Sumner v. Williams, 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 trust to enter 
 into a personal covenant for the absolute perfection of the title which he under- 
 takes to convey, or for the validity of the conveyance beyond his own acts." 
 20
 
 154 MARKETABLE TITLE TO BF.AT, ESTATE. 
 
 or assignee," 1 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 cestuis que trust? and the same rule has in 
 a few instances been enforced in America, 8 The usual covenants 
 may be required from an agent in behalf of his principal, 4 unless 
 
 Hodges v. Saundere, 17 Pick. (Mass.) 476. Shontz v. Brown, 27 Pa. St. 123. 
 Grantland v. Wight, 5 Manf. (Va.) 295; Goddin v. Vaughn, 14 Grat. (Va.) 102. 
 Covenants of title implied from the words "grant, bargain and sell," in a con- 
 veyance by administrators, impose no personal liability on them. Shontz Y. 
 Brown, 27 Pa. St. 123, 134. Nor those implied from the words "grant and 
 demise " in a lease. Webster v. Conley, 46 111. 14; 92 Am. Dec. 234. And, gen- 
 erally, covenants for title will not be implied as against an executor. Dow T. 
 Lewis, 4 Gray (Mass.), 468, 473. Semble, that if a committee of a lunatic, having 
 no power at common law or by statute to make a lease of the lunatic's lands, 
 execute such a lease, the usual lessor's covenants will be implied from the word 
 demise, and the committee be held personally liable on the covenant. Knipe 
 v. Palmer, 2 Wilson, 130. 
 
 'White v. Foljambe, 11 Ves. 337, 345. See, ante, 64. 
 
 * Sugd. Vend. (14th ed.) 574, 575; Rawle Covts. (5th ed.) 34. London Bridge 
 Acts, 13 Simons, 176; Poulet v. Hood, L. R., 5Eq. 115. But see Wakeman T. 
 Duchess of Rutland, 3 Ves. 283; Cottrell v. Cottrell, L. R., 2 Eq. 330. Mr. 
 Rawle says that the correct test of the application of the rule requiring ceituit que 
 tnut to give covenants would be the extent of the purchaser's liability to see to 
 the application of the purchase money. This means, it is presumed, that the pur- 
 chaser could not require covenant* from the eetui* que trutt 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 eettuis que trut and of the 
 trustee in making the sale. RawleCov. (5th ed.) p. 46, n. This is doubtless true 
 in all jurisdictions 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 convey with general or 
 unlimited covenants. 
 
 * 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. 
 
 4 Le Roy v. Beard, 8 How. (U. S.) 451; Taggart v. Stanbury, 2 McL. (U. 8.) 
 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, 118 Mass. 156; 11 Am. Rep.
 
 COVENANTS WHICH THE PURCHASER HAS A RIGHT TO DEMAND. 155 
 
 the power under which the agent sells and conveys expressly requires 
 a conveyance without covenants. 1 A vendor having an interest, as 
 well as a power, may be compelled to covenant personally to the 
 extent of his interest. 2 But while a fiduciary grantor cannot be 
 required to convey with the usual covenants, if he should, never- 
 theless, execute such a conveyance, he will be personally bound by 
 the covenants, 8 even though specified to be " in his capacity as 
 
 335. Hunter v. Jameson, 6 Ired. (N. C.) 252, case of personal 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 war- 
 ranting 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 con- 
 vey 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 authority to bind his principal with covenants for title. Nixon 
 v. Hyserott, 5 Johns. (N. Y.) 58; Gibson v. Colt, 7 Johns. (N. Y.) 390; VanEpps 
 v. Schenectady, 12 Johns. (N. Y.) 436, 443; 7 Am. Dec. 330. Howe v. Harrington, 
 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. 
 
 1 Bart. Ccnv. 73. Hare v. Surges, 4 Kay & Johns. 57. 
 
 * Rucker v. Lowther, 6 Leigh (Va.), 259. 
 
 Hill on Trustees (3d Am. ed.), 413; Rawle Covts. (5th ed.) 36. Executort 
 *nd administrators: Mitchell v. Hazen, 4 Conn. 495; 10 Am. Dec. 169; Belden v. 
 Seymour, 8 Conn. 24; 21 Am. Dec. 661. Aven v. Beckom, 11 Ga. 1. Sumner T. 
 Williams, 8 Mass. 162; 5 Am. Dec. 83, the leading case. Mellen v. Boarman, 13 
 8m. & M. (Miss.) 100. Godley v. Taylor, 3 Dev. (N. C.) 178. Lockwood v. Gil- 
 son, 12 Ohio, 529. Kauffelt v. Leber, 9 Watts. & S. (Pa.) 93. Mabie v. Matte- 
 son, 17 Wis. 11, diet. Barnett v. Hughey, (Ark.) 15 S. W. Rep. 464. In Sum- 
 ner v. Williams, 8 Mass. 201; 5 Am. Dec. 8J5, the court said that an administrator 
 or executor may covenant generally, " if he chooses thus to excite the confidence 
 of purchasers and to enlarge the proceeds of the sale," and will, therefore, be 
 personally bound. Such a contract is neither unlawful nor inconsistent. 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.) 87. So, 
 also, a covenant by executors that they would warrant and defend " as executors 
 are bound by law to do," they not being bound by the lex rei sites to warrant at 
 all. Day v. Browne, 2 Ohio, 347. A covenant by executors "to the extent of 
 their assets " will not bind them beyond the amount of assets in their hands at
 
 156 MAKKETABLE TITLE TO BEAL ESTATE. 
 
 administrator," l 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 pro- 
 ceeds of the sale, he must take the consequences of his contract ; 
 and, further, that, if he were not liable, the grantee would have no 
 remedy upon the covenants. 2 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. 8 
 
 The rule that general covenants for title cannot be required 
 from fiduciaries and others who convey en auter 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 com- 
 pelled 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. 4 It has been held that if it 
 
 the time of eviction. Nicholas v. Jones, 3 A. K. Marsh. (Ky.) 385; Manifee v. 
 Morrison, 1 Dana (Ky.), 208. In Georgia fiduciaries are not personally bound by 
 their covenants unless the intention of personal liability be distinctly expressed. 
 Code Ga. 2563, 2622; Clark v. Whitehead, 47 Ga. 521; Shacklett v. Ransom, 54 
 Ga. 353. Trustees: Bloom v. Wolf, 50 Iowa, 286, 288. Klopp v. Moore, 6 Kans. 
 30. Graves v. Mattingly, 6 Bush (Ky.), 361. Murphy v. Price, 48 Mo. 247. 
 Duval v. Craig, 2 Wh. (U. S.) 56; Taylor v. Davis, 110 U. S. 330. But the trus- 
 tee will not be bound if it clearly appear from the face of the deed that such was 
 not the intention of the parties. Glenn v. Allison, 58 Md. 527. Agents, etc.:. 
 Stinchfield v. Little, 1 Greenl. (Me.) 231; 10 Am. Dec. 65. Duval v. Craig, 2 
 Wh. (U. S.) 56, diet. Sterling v. Peet, 14 Conn. 245. Guardian*: Mason 
 v. Caldwell, 5 Gil. (Ill.)196; 48 Am. Dec. 330. Foster v. Young, 35 la. 27. Whit- 
 ing v. Dewey, 15 Pick. (Mass.) 433. Holyoke v. Clarke, 54 N. H. 578. A guar- 
 dian using the words "grant, bargain and sell," will be personally bound by the 
 covenants implied therefrom. Foote v. Clark, 102 Mo. 394; 17 S. W. Rep. 981. 
 
 1 Higley v. Smith, 1 D. Chip. (Vt.) 409; 12 Am. Dec. 701. 
 
 'Donohoev. Emery, 9 Met. (Mass.) 66. See, also, Story on Agency, 268; 
 Appleton v. Banks, 5 East. 148; Knipe v. Palmer, 2 Wilson, 180; 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. 
 
 * Belden v. Seymour, 8 Conn. 24; 21 Am. Dec. 661. 
 
 4 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. Brownson, (W 
 Tex. 597; 6 8. W. Rep. 778.
 
 COVENANTS WHICH THE PTTBCHASER HAS A EIGHT TO DEMAND. 157 
 
 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. 1 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. 8 A 
 power to a trustee to sell real estate upon such terms as he may 
 deem expedient gives him no authority to bind the estate by cove- 
 nants. 3 And a statute giving an administrator power to convey 
 land, gives him, by implication, no power to bind the estate by 
 covenants for title. 4 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. 9 
 
 70. MINISTERIAL GRANTORS. No covenants of any kind can 
 be required from mere ministerial grantors, such as sheriffs, tax col- 
 lectors and others who are made by law the mere media for the 
 transfer of legal title. 6 Nor can any covenant be implied from the 
 language of the conveyances which they execute. 7 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 cove- 
 nants for title inserted in a conveyance by themselves in their 
 official capacity. 8 A tax collector who executes a tax deed with 
 
 1 Glenn v. Allison, 58 Md. 527. 
 
 * Osborne v. McMillan, 5 Jones L. (N. 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, 86 
 Me. 573. The same rule applies in sales of personal property. Worthy v. John* 
 son, 8 Ga. 236; 52 Am. Dec. 399. 
 
 Welch v. Davis, 3 So. Car. 110; 16 Am. Rep. 630. 
 
 * Osborne v. McMillan, 5 Jones L. (N. Car.) 109. 
 
 Foster v. Young, 35 Iowa, 27. Heard v. Hall, 16 Maw. 458. See pott, 
 " Estoppel," ch. 21. 
 
 * Friedly v. Scheetz, 9 S. & R. (Pa.) 156; 11 Am. Dec. 691. Mitchell v. Pinck- 
 ney, 13 So. Car. 203. The reason is that the rule caveat emptor strictly applies la 
 all sales by persons acting in a ministerial capacity. See ante, " Caveat 
 Emptor," ch. 5. 
 
 T Dow v. Lewis, 4 Gray ( Mass. ) , 468. 
 
 * Sterling v. Peet, 14 Conn. 245.
 
 158 MARKETABLE TITLE TO REAL ESTATE. 
 
 covenants in the form prescribed by statute cannot be held person- 
 ally liable on those covenants. 1 Covenants for title cannot be 
 required from the crown, nor from the commonwealth, nor the 
 federal government. 3 But it has been held that if the common- 
 wealth convey with covenants of warranty, she will be estopped 
 from afterwards setting up a claim to the property. 8 
 
 1 Wilson v. Cochran, 14 N. H. 397. Gibson v. Mussey, 11 Vt. 212. 
 1 2 Sugd. Vend. ch. 14, 111; Rawle Covts. (5th ed.) 37. State v. Crutchfield, 
 3 Head (Tenn.), 113. 
 3 Gomm'th v. Andre, 3 Pick. (Mass.) 224; Comm'th v. Pejepscut, 10 Maae. 166.
 
 CHAPTER VII. 
 
 ABSTRACT OF TITLE. 
 IN GENERAL. 71. 
 BOOT OF TITLE. 72. 
 DUTY TO FURNISH ABSTRACT. 78. 
 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 which appear from, the instruments under which title i 
 
 claimed. 77. 
 
 Objections which appear from the public records. 78. 
 Objections which appear upon inquiries in pais. 79. 
 
 71. IN GENERAL. In the English practice an abstract of title 
 appears to be an epitome of the various documents in the possession 
 of the vendor which evidence his title, su3h as deeds, wills, and 
 affidavits respecting births, marriages, deaths, pedigrees, 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 posses- 
 sion 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." 3 This defi- 
 nition 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 nec- 
 essary 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 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.* 
 
 J 2 Sugd. Vend. (8th ed.) ch. 11. Hollifield v Landrum (Tex. Civ. App.), 
 71 S. W. 979, citing the text. 
 
 * Union Safe Dep. Co. v. Cliisholm, 33 111. App. 647, citing Warvelle Abst. 3. 
 2 Sugd. Vend. (8th ed.) 15 (417).
 
 160 MARKETABLE TITLE TO REAL ESTATE. 
 
 In the American practice the abstract shows not only all convey- 
 ances affecting the title back to its root, 1 but all liens or incum- 
 brances 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 which the proceedings or acts in question would 
 be not voidable merely, but absolutely void. In fine, the abstract 
 is the outcome of a carciul and accurate examination of the title, 
 and should show all that such an examination of the title would dis- 
 close. It should also show the essential parts of every instrument 
 in the vendor's chain of title, such as the names of the parties, 
 description 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 upon the 
 subject. 2 According to the English practice, the vendor's 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 origi- 
 nals, 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 
 
 1 A certificate 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 incumbrancea. 
 Thomas v. Schee, 80 Iowa, 237; 45 N. W. Rep. 539. 
 
 * American: Warvelle on Abstracts, 1892; Martindale on Abstracts, 1890. 
 English : Preston on Abstracts; 2 Sugd. Vend. ch. 11. A case of want of reason- 
 able care, skill and diligence in preparing an abstract may be seen in Thomas T. 
 Schee, (Iowa) 45 N. W. Rep. 539.
 
 ABSTRACT OF TITLE. 161 
 
 inquire further, when he would have discovered the fraud which 
 had been committed." l 
 
 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 
 
 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, 
 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 thing not disclosed by these evidences of title are 
 in reality worthless, as when 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. (jr., the death of a cestui 
 que vie, when the estate which the vendor proposes to sell is held 
 for the life of another only. The rule caveat emptor 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 inpais. 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 bar, 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 
 the 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 savings in favor of persons under disabilities. 3 This 
 
 '2 Sugd. Vend. (8th Am. ed.) 8 (411). 
 
 'Fagan v. Davison, 2 Duer (N. Y.), 153. 
 
 * Williams Real Prop. 450; 1 Sugd. Vend. (8th ed.) ch. 10; Warvelle Abst. 610; 
 Martindale Abst. 18; Post " Doubtful Titles," 292. Paine v. Miller, 6 Ves. 
 349. Cooper v. Emery, 1 Phil. 838. Blackburn v. Smith, 2 Exch. 783. Moulton 
 v. Edmonds, 1 De G., F. & J. 246. 
 21
 
 162 MARKETABLE TITLE TO BEAT, ESTATE. 
 
 period was, in England, fixed at sixty years until within a compara- 
 tively recent date, when it was changed by statute to forty years. 1 
 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 beyond that period ; for example, in the case of a right 
 outstanding in a remainderman or in a person under disabilities. 5 
 
 In most of the American States west of the Alleghanies, where 
 all public grants of land to individuals are comparatively recent, it is 
 customary to carry the title back to its emanation from the govern- 
 ment, and for the purchaser, when entitled to an abstract, to insist 
 upon one commencing with that date. 3 It is apprehended, however, 
 that even in those States the purchaser can require the vendor to 
 show a title at no more remote period than one sufficient to bar all 
 adverse claimants, including those under personal disabilities and 
 remaindermen, unless there be something in the case to take it out 
 of the general rule, that a title founded on adverse possession for 
 the statutory period of limitation is marketable. 4 
 
 73. DTTTY TO FURNISH ABSTRACT. In England the duty 
 devolves upon the vendor to furnish an abstract of title to the pur- 
 chaser irrespective of any agreement upon the subject, 5 the reason 
 being that the purchaser, in the absence of any record of the ven- 
 dor's muniments of title, must be given an opportunity to inspect 
 them or their equivalents, unless the purchaser has agreed to take 
 the title, such as it is, or, as it is technically expressed, " without 
 requiring the vendor to produce his title." But it is usual in that 
 
 1 1 Sugd. Vend. (8th Am. ed.) 551 (366). 
 
 1 1 Sugd. Vend. (8th Am. ed.) 551 (366). 
 
 'Warvelle Abst. 145. This practice will probably continue long after any 
 necessity for it exists. In the city of Washington, in the District of Columbia, 
 it is customary to carry the examination back to the conveyances by the original 
 proprietors of the land on which the city stands to the government, now a period 
 of about 100 years, or five times that of the Statute of Limitations. 
 
 4 Post, ch. 31; Martindale Abst. 17. 
 
 * 2 Sugd. Vend. (8th ed.) 29 (428); Dart Vend. (5th ed.) 125.
 
 ABSTRACT OF TITLE. 163 
 
 country to insert in the contract or common conditions of sale a pro- 
 vision that the vendor shall, within a specified time, prepare at his 
 own expense and deliver to the purchaser an abstract of the title. 1 
 If there is any doubt as to the vendor's ability to deliver a sufficient 
 abstract by the specified time, it is said to be better to omit this pro- 
 vision, the reason being that if the vendor fail to deliver the 
 abstract within the time in which he would be required to furnish 
 the same independently of any agreement upon the subject, or if. 
 when delivered, it be imperfect, the purchaser will be absolved from 
 his obligation to make objections within a limited time. 2 In 
 America the rule obliging the vendor to furnish an abstract has been 
 announced in some cases, 8 though the same reasons for it do not gen- 
 erally exist. Here the purchaser may always, as a general rule, 
 ascertain the state of his vendor's title by an examination of the 
 public records, so that the question who shall furnish the abstract of 
 title is no more in ordinary cases than the question who shall bear 
 the expense of examining the title and preparing the abstract. 
 Accordingly it has been held in several cases that in the absence of 
 any agreement upon the subject, no duty devolved upon the vendor 
 to supply the purchaser with an abstract of the title. 4 It seems, 
 
 'Dart Vend. & Purch. (5th ed.) 125. 
 
 Southby v. Hutt. 2 Myl. & C. 207; Sherwin v. Shakespear, 5 De G., M. & G. 
 517; Upperton v. Nicholson, L. R., 6 Ch. App. 436 ; Blacklow v. Laws, 2 Ha. 40. 
 
 'Chapman v. Lee, 55 Ala. 616. Mart. Abst. 9, citing Connolly v. Penree. 7 
 Wend. (N. Y.) 131, and Carpenter v. Brown, 6 Barb. (N. Y.) 1-10; Brewer v. 
 Fox, 62 111. 609. 
 
 4 Easton v. Montgomery, 90 Cal. 313; 27 Pac. Rep. 280, citing Espy v. Ander- 
 son, 14 Pa. St. 312; Carr v. Roach, 2 Duer (N. Y.), 20. See, also, Bolton v. 
 Branch, 22 Ark. 435; Warvelle Abst. 10. In Easton v. Montgomery, supra, it 
 was said by HARRISON. J. : " Ordinarily parties entering into an executory agree- 
 ment for the purchase and sale of real estate make provisions therein specifying 
 the time allowed for examination of the title, for furnishing abstract, making 
 report of defects and objections, specifying the time within which the vendor 
 may thereafter make his title good, and the character of the conveyance to be 
 executed by him; but, in the haste attendant upon the excitement of a 'boom,' 
 these formal requisites are frequently omitted, and the construction of the con- 
 tract is left to implication or established rules. It is evident from the provision 
 inserted in the memorandum, ' title to prove good or no sale, and this deposit to 
 be returned,' that it was contemplated by the parties that an examination of the 
 title was to be made on behalf of the plaintiff (purchaser) and that upon such 
 examination it might be found defective. As no time was specified within which 
 such examination should be made, a reasonable time therefor was implied. The
 
 164 MABKETABLE TITLE TO KEAL ESTATE. 
 
 however, to be the opinion of several text writers that a different 
 rule applies as between mortgagor and mortgagee, and that the duty 
 devolves upon the mortgagor to bear the expenses of searching the 
 title, upon the ground that the mortgagee is entitled to the full 
 amount of his loan and interest, without discount for expenses 
 incurred in preparing the security and ascertaining its value. 1 
 
 If the vendor agrees to furnish an abstract within a specified 
 time, but fail so to do, the purchaser cannot be required to extend 
 the time; he may rescind the contract and recover his deposit. 1 
 Where the contract provides that an abstract shall be furnished 
 within a reasonable time, what is a reasonable time depends upon 
 the circumstances of each case. 3 An agreement to furnish an ab- 
 stract is sufficiently complied with by notifying the vendee where 
 it can be found, if it be accessible to the vendee, and if he raises 
 no objection at the time. 4 An objection grounded on the failure 
 to furnish an abstract within a specified time is waived by subse- 
 quent acceptance of the abstract without objection, and cannot be 
 urged by the purchaser as an excuse for his failure to tender the 
 purchase-money in proper time. 5 If the vendor agrees to furnish 
 an abstract, and furnishes one which shows a defective title, 
 the purchaser may rescind the contract and recover the money 
 
 parties did not agree that the condition of the title should be ascertained from 
 any particular abstract, or from an abstract to be furnished by the vendor, and 
 in this respect the case is distinguished from Smith v. Taylor, 82 Cal. 533 ; 23 
 Pac. Rep. 217, and from Boas v. Farrington, 85 Cal. 535 ; 24 Pac. Rep. 787. The 
 agreement being silent upon this point, it was incumbent upon the plaintiff to 
 provide the abstract and to satisfy himself as to the condition of the title. 
 * * * If, upon such examination, it appeared to him that the title was defec- 
 tive, it then became his duty to report to the vendor the particulars wherein 
 such defects were claimed to exist, and, in the absence of any time fixed by the 
 agreement within which the vendor should remove these defects or satisfy his 
 objections, a reasonable time would be allowed therefor. The burden is on the 
 vendee to point out the defects in the title." In the case of Taylor v. Williams, 
 45 Mo. 80, it was held that an agreement of sale, containing the provision " title 
 to be satisfactory and a warranty deed given," did not impose on the vendor the 
 duty of furnishing an abstract of title. So, also, an agreement to " make good 
 title and give a warranty deed." Tapp v. Nock, 89 Ky. 414 ; 12 S. W. Rep. 713. 
 
 1 Mart, on Abst. 9, citing Willard on Real Est. & Conv. 559. 
 
 'Williams v. Daly, 33 111. App. 454; Howe v. Hutchison, 105 111. 501; Dea 
 Moines, etc. Real Est. Co. v. Beale, 78 111. App. 40. 
 
 'Jackson v. Conlin, 50 111. App. 538. 
 
 4 Papin v. Goodrich, 103 111. 86. 
 
 s Ky. Distilleries, etc. Co. v. \V arwick Co. 109 Fed. 28 ; 48 C. C. A. 303.
 
 ABSTRACT OF TITLE. 165 
 
 paid, though the vendor had a good title as a matter of fact. 1 
 Where the vendor agrees to furnish an abstract within a specified 
 time, which is not done, and the purchaser thereafter treats the de- 
 fault as immaterial and continues his payments under the con- 
 tract, he will be deemed to have waived the delivery of the ab- 
 stract, and cannot recover his deposit. 2 In a case in which time 
 was not of the essence of the contract, a vendor who agreed to 
 furnish by a specified time an abstract showing a perfect title, was 
 allowed to tender the abstract at the hearing of a suit subsequently 
 brought by him for specific performance. 3 
 
 In some localities, it seems that it is common to treat an abstract 
 of title as merchantable or unmerchantable, without regard to the 
 nature of the title it discloses.* The value of the abstract depends, 
 of course, upon the skill with which it is prepared, and upon the 
 reputation and ability of the compiler. An agreement to furnish 
 an abstract would seem necessarily to imply that the document 
 should be thorough and complete, and should be made by a com- 
 petent person. 
 
 74. PROPERTY IN THE ABSTRACT. The purchaser has a 
 temporary right of property in the abstract while the sale is being 
 negotiated, and the absolute ownership if the sale be consum- 
 mated. 6 As between mortgagor and mortgagee, it has been held 
 that an abstract furnished by the mortgagor to assist the mort- 
 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. 8 
 
 75. TIME IN WHICH TO EXAMINE THE TITLE AND VERIFY 
 THE ABSTRACT. The contract of sale usually specifies a time in 
 
 1 Boas v. Farrington, 85 Cal. 535 ; 24 Pac. Rep. 787. 
 
 1 McAlpine v. Reicheneker, 56 Kan. 100 ; 42 Pac. 339. 
 
 'Gates v. Parmly, 93 Wis. 294; 66 N. W. 253; 67 N. W. 739. 
 
 *Warvelle Abstracts, ch. 1, 7. Proof by a vendor that he furnished an 
 abstract made by the recorder of deeds, together with the testimony of a num- 
 ber of real estate dealers that abstracts furnished by such recorder were 
 merchantable, establishes, prima facie, the delivery of a " merchantable " 
 abstract. Harper v. Tidholm, 155 111. 370; 40 N. E. Rep. 575. 
 
 Coppinger on Title Deeds, Lond. 1875; Mart. Abst. 11. This is the English 
 rule, and there seems to be no reason why it should not apply in this country. 
 Roberts v. Wyatt, 2 Taunt. 288; Langlow v. Cox, 1 Chit. 98. 2 Sugd. \ r end. 
 428, 429; Warvelle Abst. 11. Chapman v. Lee, 55 Ala. 610. 
 
 Holm v. Wust, 11 Abb. Pr. (N.S.) (N.Y.) 1113. In Williams v. Daly, 33
 
 166 MARKETABLE TITLE TO REAL ESTATE. 
 
 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. 1 He cannot be required 
 to pay the purchase-money before he has examined the abstract, 
 unless he has expressly stipulated so to do. 2 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. 3 
 
 The purchaser is entitled to a reasonable time within which to 
 determine by investigation the validity of apparent liens disclosed 
 by the record. 4 After the purchaser has examined the abstract, or 
 investigated the title in the time allowed for that purpose, it is his 
 duty to point out or make known his objections to the title, if any, 
 so as to give the vendor an opportunity to remove them. 5 This rule 
 
 III. 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, waa 
 not such an abstract as the purchaser was entitled to require. As to the valid- 
 ity of copies of abstracts generally, see the observations of Mr. Warvelle ia 
 his work on Vendors, vol. 1, p. 295. 
 
 * Hoyt v. Tuxbury, 70 111. 331. 
 
 'Penna. Min. Co. v. Thomas, 204 Pa. 225; 54 Atl. 101. 
 Kelsey v. Crowther, (Utah) 27 Pac. Rep. 695. 
 
 * 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 incumbered, and that the vendor should have a right to demand the im- 
 mediate 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. 
 Nor do I think thirty days was an unreasonable time to take for this purpose 
 when the mortgagee resided at a distance, and whnn 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. 
 
 Post, ch. 32. Easton v. Montgomery, 90 Cal. 307; 27 Pac. Rep. 280. 
 Goodell v. Sanford, (Mont.) 77 Pac. 522. Compare Lessenich v. Sellers, 119 
 Iowa, 314; 93 N. W. 348.
 
 ABSTRACT OF TITLE. 167 
 
 has been held not to apply where the defect is one that cannot, in 
 the nature of things, be removed before the time fixed for complet- 
 ing the contract. Thus, where the objection was that the abstract 
 showed no authority in the officers of a corporation to execute a 
 deed through which the vendor derived title, and it appeared that 
 the corporation had been dissolved since the deed was executed, it 
 was held that the purchaser was not in default in failing to raise 
 that objection before the day fixed for completing the contract. 1 
 Where the conditions of sale provide that the purchaser shall have 
 a specified time in which to examine title, he may, of course, at 
 the expiration of that time, abandon the purchase, if he finds that 
 the vendor has not such a title as the contract requires. 2 And even 
 though, at the expiration of the specified time, the purchaser makes 
 no objection to the title, the vendor can maintain no action on the 
 contract if his title is not such as the purchaser may demand. 3 But 
 the purchaser cannot, at the expiration of that time, recover back 
 his deposit unless he has notified the vendor that the title is unsatis- 
 factory, and that he intends to rescind. 4 The purchaser must make 
 all of his objections at one time, and within a reasonable time after 
 the abstract is furnished. He cannot induce the vendor to spend 
 money in removing objections, and then raise others which cannot 
 be removed. 5 If the abstract, when furnished, is not such, as to 
 form and fullness, as the purchaser is entitled by the contract to 
 require, he must promptly make his objection. He cannot accept 
 the abstract, keep it until the time allowed the vendor in which to 
 furnish an abstract has passed, and then insist upon its insuffi- 
 ciency as a breach of the contract.' 
 
 'McCroskey v. Ladd, (Cal.) 28 Pac. Rep. 216. 
 
 'Mead v. Fox, 6 Cush. (Mass.) 199. 
 
 1 Packard v. Usher, 7 Gray (Mass.) 529. 
 
 4 Anderson v. iStrasburger, 92 Cal. 38; 27 Pac. Rep. 1095, and easea cited. 
 
 Polk v. Stevenson, 71 Iowa, 278. 
 
 Moot v. Business Men's Assn., 157 N. Y. 201; 52 N. E. Rep. 1. la this 
 case the contract provided for an abstract " truly showing the condition of 
 the title." The document furnished was a mere abstract of the indexes of 
 the records in the county clerk's office, and did not show certain objection* 
 to the title, which, however, were of an unimportant kind, and which the 
 court held the vendor had the right to remove.
 
 168 MARKETABLE TITLE TO KEAL ESTATE. 
 
 Where the contract provides for time in which to examine the 
 title, the purchaser will be presumed to have investigated the 
 title, to have examined every deed or instrument forming part of 
 it, especially if recorded and to have known every fact disclosed 
 by the record or the existence of which was suggested by the 
 record. 1 
 
 A provision in the contract that the purchaser shall give written 
 notice of the acceptance of the abstract, is waived by the accept- 
 ance of verbal notice without objection. 2 
 
 76. SUMMARY OF THE PRINCIPAL SOURCES OF OBJECTIONS 
 TO TITLE. General Observations. We shall elsewhere consider in 
 this work what circumstances render a title so doubtful that it will 
 not be forced upon a purchaser. 3 It is our purpose here merely 
 to point out the several sources whence it may appear that a title 
 is absolutely bad. 
 
 An absolutely bad title to real property, as between vendor and 
 purchaser, consists in the want of any one of the elements of a good 
 title. These, as has been shown, consist in the rightful ownership 
 of the property, the rightful possession thereof, the appropriate 
 legal evidences of rightful ownership and the freedom of the estate 
 from liens or incumbrances of any kind. 4 A man may be the right- 
 ful owner of an estate, but if he is out of possession his title is bad, 
 so far as a purchaser from him is concerned ; 5 and, of course, if he 
 be not the rightful owner, his title is bad without reference to the 
 question of possession. So, also, if he be the rightful owner but is 
 wrongfully in possession, as where he commits a breach of the peace 
 in ejecting an occupant of the premises. But he may be both the 
 rightful owner and rightfully in possession under a deed sufficient 
 to pass the legal title, and yet his title may not be such as a pur- 
 chaser may require. For example, the deed under which he holds 
 may not have been admitted to record, or may have been admitted 
 to record upon an insufficient certificate of acknowledgment. The 
 title is also absolutely bad not only where it is open to attack after 
 
 1 Moot v. Business Men's Assn., 157 N. Y. 201, 52 N. E. 1. 
 
 1 Domestic Bldg. Assn. v. Guadiano, 195 111. 222, 63 N. E. 98. 
 
 1 Post, ch. 31. 
 
 4 Ante, p. 2. 
 
 1 Sugd. Vend. (8th ed.) 387, 579.
 
 ABSTRACT OF TITLE. 169 
 
 it has passed to the purchaser, but also wherever the purchaser must 
 institute any proceeding at law or in equity to secure himself in the 
 enjoyment of the estate. The purchaser will also be entitled to his 
 action if the vendor have not the quantity of estate which he has 
 agreed to sell and convey. Thus, he may have only a life estate, or 
 an estate for years, or an estate upon condition, and his title to the 
 same may be clear and unimpeachable, yet if by the contract the 
 purchaser is entitled to a conveyance of the fee simple, a breach 
 results, and an action for damages accrues. 
 
 With respect to what particular facts or circumstances constitute 
 a good legal title, or demonstrate a complete want of title, it must 
 suffice to say that the inquiry is impracticable here, since the answer 
 would involve a review of the whole body of the law of real prop- 
 erty. An infinite variety of facts and circumstances enter into the 
 composition of every title, and the existence or non-existence of any 
 one of these may be fatal to the title. Hence, 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 reasonable 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 mat- 
 ters 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 
 
 'Lord HARDWICKE in Lyddall v. Western, 2 Atk. 20. 
 22
 
 170 MARKETABLE TITLE TO REAL ESTATE. 
 
 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 executed 
 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 
 inpais, such, for example, as a title by inheritance or by adverse pos- 
 session for a great number of years. Where the defect of title appears 
 upon the face of the instrument under which title is claimed, or 
 from the public 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 instrument 
 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 consid- 
 eration 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 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 
 appear 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 dehors the 
 Public Records, and apart from any Instrument under which Title is 
 claimed. This summary, while necessarily general in its character, 
 
 1 Cogel v. Raph, 24 Minn. 194. See post, tb^ chapter, 79.
 
 ABSTRACT OF TITLE. 171 
 
 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 
 PACE 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 paries, namely : (1) Deeds, including 
 letters patent or public grants ; and (2) Wills. As to deeds, it ia 
 obvious that these, in several respects, may appear 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 be an imperfection in the 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 origi- 
 nal deed are as follows : 
 Insufficient Signing. 
 
 See ante, 9 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, omitt 
 any of the formalities prescribed by the power. 
 Insufficient Words of Conveyance. 
 See ante, 19. 
 
 Insufficient Description of the Premises. 
 
 This, as may be seen, may be so vague and indefinite as to render the im- 
 strument not only ineffectual as notice to subsequent purchasers, but roid
 
 172 MARKETABLE TITLE TO HEAL ESTATE. 
 
 as between the parties. Ante, 20. Wait v. Smith, 92 111. 385. 1 Qreenl. Ev. 
 301. Mesick 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 commissioner of 
 court which shows that the commissioner was appointed by a court in a State 
 other than that in which the premises lay, shows on its 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. 
 
 An example of incompetency of the grantee occurs where the conveyance 
 is to a corporation not authorized by law to hold real estate; or where a trus- 
 tee or fiduciary becomes a purchaser of the trust estate. Painter v. Hender- 
 son, 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 care- 
 fully 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. 
 
 Covenants 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 raceway 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.
 
 ABSTRACT OF TITLE. 173 
 
 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 discovered by the exercise of 
 reasonable diligence. Thus, where a deed is executed in pursuance of a 
 power of attorney, a subsequent purchaser is charged with notice of any 
 defect in the power. Morris v. Terrell, 2 Rand. (Va.) 6. And except in 
 those States where a vendor's lien must be expressly 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 purchaser upon inquiry, and he must 
 ascertain at his peril whether the purchase money has been paid since the 
 execution of the deed. Woodward v. Woodward, 7 B. Mon. (Ky.) 116. 
 Numerous cases illustrating the 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 pro- 
 vided by law. We have seen that, in some of the States, the acknowledg- 
 ment 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 requi- 
 sites of a valid certificate of acknowledgment are considered. 
 
 Reservation of Liens or Charges upon the Estate Conveyed. 
 
 Liens for purchase money, annuities, charges for support and maintenance 
 of the grantor, and the like, are frequently reserved on the faces of convey- 
 ances; and all deeds in the chain of 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 miud 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.
 
 174 MARKETABLE TITLE TO REAL ESTATE. 
 
 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, how- 
 ever, that the provisions of deeds purporting to be trusts for the benefit of 
 particular parties are framed so palpably in the interest 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 John- 
 son v. Thweatt, 18 Ala. 741, where property of the value of $7,000 was con- 
 veyed 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 posses- 
 sion of the premises. The deed was held void on its face, and a remote pur- 
 chaser thereunder charged with notice of the fraud. 
 
 Want of Statutory Recitals. 
 
 In some of the States 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, such as a 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; Freem. Void Jud. Sales (2d ed.), 47; 
 Blackw. Tax Titles, 790. Wherever such provisions exist they should be 
 borne in mind in the examination of a title. 
 
 PATENTS. These must, of course, conform in all their features to 
 the requirements of the laws of the State in which they were issued. 1 
 Those laws differ to such an extent in the several States that it would 
 be impracticable to indicate here every particular in which a patent 
 may be upon its face defective. It should be observed, however, 
 that every purchaser under a patent is charged with notice of any 
 defect apparent upon its face, there being no difference in that 
 respect between patents and the deeds of individuals. 2 
 
 WILLS. The most common objections to title apparent upon the 
 face of a will under which title is claimed consist of some restriction, 
 limitation or qualification of the estate of the devisee, or of some 
 charge or incumbrance thereon created by the will. As a general 
 rule questions which might arise as to the due execution of the will 
 are concluded by the sentence admitting the will to probate ; cer- 
 tainly in all cases in which the probat was resisted. And even after 
 an ex parte probat, it is hardly to be presumed that the will would 
 have been admitted with evidence upon its face that it was not legally 
 
 'See the case of McGarrahan v. Mining Co., 96 U. S. 316, where it is said by 
 Chief Justice WAITB that every part of the execution of a patent, such as the 
 signature by the proper officer, sealing and countersigning, and every other statu- 
 tory requirement, is essential to the validity of the instrument. 
 
 Bell T. Duncan, 11 Ohio, 192. Moore v. Hunter, 1 Gilm. (111.) 317.
 
 ABSTRACT OF TITLE. 175 
 
 executed, as if, e. g. it should lack the number of witnesses required 
 
 by law. . 
 
 Incompetency of the Testator. 
 
 This may sometimes appear upon the face of a will, as when its provisions 
 are so foolish and unnatural as to show that the testator was devoid of testa- 
 mentary capacity. Examples may be found in the books. 
 
 Incompetency of the Devisee. 
 
 This, of course, cannot occur when the devisee is a living person who can 
 be ascertained, and who is not a subscribing witness to the will. But in 
 some of the States testators are prevented by law from devising more than a 
 certain portion of their real estate to corporations. And in certain other States 
 devises to corporations of any real property whatever are declared void. 
 
 trwalidity of tJie Devise. 
 
 This may occur in several ways, e. g., because of some patent ambiguity 
 in respect to the persons whom it is intended shall take under the will, or in 
 respect to the subject-matter of the devise; or, because the will is too vague, 
 uncertain and indefinite in its provisions; or, because its provisions are unin- 
 telligible, or in any respect unlawful, as where they create a perpetuity. 
 
 Diminutions in the Quantity of the Estate Intended to be 
 Purchased. 
 
 In America deeds are seldom more than simple transfers of the fee from 
 seller to buyer. Contingent remainders and executory limitations are 
 rarely met with except in wills. With testators who have estates to bestow 
 there is usually a desire to impose restraints upon the alienation of those 
 estates, to provide against possible untoward events of the future, and to 
 secure to the objects of their bounty and the descendants of them, as long 
 as may be, the benefits of their gifts. The consequence is that wills are 
 often found to contain intricate and complicated dispositions of property, 
 making it necessary for all parties to invoke the aid of the courts in the 
 interpretation of the devise. The intention of the testator must sometimes 
 be extracted from a number of seemingly repugnant or inconsistent provis- 
 ions of the instrument. Hence, the question of what interest or estate the 
 devisee takes is often a matter of great nicety and difficulty, and requires 
 for its solution an intimate acquaintance with the niles of law which govern 
 in the creation and limitation of estates and in the construction of wills. 
 The purchaser should never complete the contract until he has carefully 
 perused any will that may lie in the vendor's chain of title. 
 
 Legacies Charged on Realty, Annuities, etc. 
 
 Any will which lies in the vendor's chain of title should be carefully 
 examined to see that it contains no legacy, annuity or the like that is charged 
 on the realty in the hands of the devisee. 
 
 Fraudulent Alterations and forgeries. 
 
 A will is, of course, susceptible of fraudulent alteration after it has taken 
 effect. An example will be found in Wilson's Case, 8 Wis. 171. The orig-
 
 176 MARKETABLE TITLE TO BEAL ESTATE. 
 
 inal will should always be inspected by the purchaser; there may be indica- 
 tions upon its face tliat it is a forgery. 
 Insufficient Signing and Attestation. 
 
 Probate courts often exact with great rigor proof of compliance with all 
 formalities and ceremonies prescribed by law for the execution of wills, and, 
 therefore, a sentence of such a court admitting a will to probate is a reason- 
 ably fair assurance to a purchaser that the will carries on its face no evi- 
 dence that it was not entitled to probate. It seems, however, that an ex 
 parte admission of a will to probate is not conclusive upon persons in inter- 
 est, and the will is liable to be avoided upon an issue devisavit vd non. The 
 purchaser should, therefore, satisfy himself by an inspection of the instru- 
 ment that, for anything that appears on its face, it has been properly admit- 
 ted to probate. 
 
 (II) 
 
 78. DEFECTS AND OBJECTIONS TO TITLE WHICH APPEAR 
 FROM THE PUBLIC RECORDS. The term "public records," in the 
 sense in which it is here used, means not only the books of registry in 
 which deeds, wills, judgments and the like are entered, but all records 
 of a judicial or official nature which are open to the inspection of the 
 public, such as the minutes of court proceedings, order books, origi- 
 nal papers in suits at law or in equity, tax-office records, land-office 
 records, and other records and documents of a like nature. 
 
 (1.) DEFECTS AND OBJECTIONS TO TITLE WHICH APPEAR FROM THE 
 REGISTERS OF CONVEYANCES, LIENS AND INCUMBRANCES. 
 
 The registers, commonly known as " Deed Books," " Land 
 Records," " Judgment Lien Dockets," " Mechanic's Lien Docket," 
 exist, it is apprehended, in all the States. The uses and purposes 
 for which they are intended are so well known that no remark about 
 them is deemed necessary. 
 Absence of Record Evidence of Title. 
 
 If the public records do not show title in a vendor, that fact will, in most 
 cases, be treated as a defect in his title. If he holds under a deed, that deed 
 should have been entered of record, so as to bind subsequent purchasers and 
 creditors. If he has no deed, then his title is merely equitable, unless he 
 claims by inheritance or adverse possession and is not such as a purchaser 
 can be compelled to accept. And if, by the contract, he is to receive a 
 "good title of record," it has been held that he may reject a title by adverse 
 possession. Ante, 6. But see post, 292. 
 Prior Conveyances. 
 
 The possibility of a prior conveyance of the premises by the vendor, or his 
 predecessor in title, is one of the principal reasons for examining the public 
 registers. The prime object of the registry acts is to protect purchasers
 
 ABSTRACT OF TITLE. 177 
 
 against secret liens and conveyances. The general rule is that a search for 
 prior conveyances by the vendor, or any one through whom he claims, need 
 be extended back no further than the date at which the record shows title in 
 the vendor, or the person against whom the search is made. Rawle Covt. 
 for Title (5th ed.), 259, p. 406. 
 
 Executory Contracts. 
 
 Executory contracts for the sale of lands are very generally included in 
 the registry acts of the different States, and, therefore, when duly admitted 
 to record, are binding upon subsequent purchasers from the vendor without 
 notice. See the statutes of the several States. 
 
 Homestead Estates. 
 
 These, in some of the States, are required to be described in writing by the 
 claimant, and the description entered upon the public records. See 1 Washb. 
 Real Prop. (4th ed.) 366 et seq. 
 
 Mortgages. 
 
 These, of course, must be recorded in order to bind subsequent purchas- 
 ers without notice. See the registry acts of the several States. 
 
 Deeds of Trust to Secure Debts. 
 
 This is the commonest form of incumbrance in several of the States, and 
 takes the place of mortgages and vendor's liens. It is, of course, embraced 
 in the registry acts everywhere. 
 
 Declaration of Trust. 
 
 This is a declaration in writing by one in whom the legal title to land is 
 vested, that he holds the title in trust for certain specified purposes, or for 
 the use and benefit of certain persons. It must be spread upon the records 
 in order to bind subsequent purchasers. Its nature and incidents may be 
 seen in 2 Washb. Real Prop. ch. 3, 3, p. 500 (190). 
 
 Defeasances. 
 
 A defeasance is a separate instrument, executed by and between the parties 
 to an original deed, by which such original deed is to be defeated upon the hap- 
 pening of a certain event. It is seldom met with in this country, but is some- 
 times employed where property has been conveyed by a deed absolute in 
 form, but in fact a security for the payment of money. Defeasances must 
 be recorded in order to bind subsequent purchasers. 2 Washb. Real Prop. 
 81 (495). 
 
 Judgments. 
 
 A judgment is the commonest form of incumbrance on real property. But 
 it is perhaps in no State a lien as against a purchaser for value and without 
 notice, until entered upon what is commonly called the " judgment lien 
 docket." In searching for judgments the purchaser should be careful to see 
 that the lien has not been continued in favor of a surety, who has discharged 
 the judgment and who is entitled to be subrogated to the benefit of the lien. 
 This privilege has been accorded to the surety in some of the States, even 
 as against a purchaser without notice. See Am. & Eng. Encyc. of L. art, 
 Subrogation." 
 23
 
 178 MARKETABLE TITLF. TO EEAL ESTATE. 
 
 Lit Pendens and Attachment. 
 
 The rule of the common law is that every person is presumed to 
 notice of the proceedings of the courts, and that a purchaser of property that 
 is in litigation must take subject to whatever decree or judgment may be 
 pronounced in respect to such property. But this rule has been modified by 
 statutes in most of the States, which provide that no Us pendent or attachment 
 hall be as valid against a bonafide purchaser for value without actual notice, 
 unless a memorandum thereof describing the premises, the title of the cause, 
 and the names of the parties, shall have been entered upon the register of deeds. 
 Warvelle Abstracts, 463, 465; Story Eq. 405; 2 Washb. Real Prop. 252 (598). 
 
 Mechanics' Liens. 
 
 See the statutes of the respective States. 
 
 Vendor's Liens. 
 
 These, in several of the States where there has been a conveyance to the 
 vendor, must be reserved upon the face of the conveyance in order to bind a 
 subsequent purchaser. See the laws of the respective States in this regard. 
 
 Forthcoming Bonds and Recognizances. 
 
 These, in some of the States, have the effect of j udgments as soon as they 
 become forfeited, and bind the lands of the obligor from that time. Consult 
 the laws of each State in this regard. 
 
 Official Bonds. 
 
 Are by statute in several of the States made liens upon the real property 
 of the obligor until he is discharged from his official obligations. See 
 Warvelle Abstracts, p. 456. 
 
 Debts of Decedents. 
 
 These are very generally made liens upon the estate of a decedent in the 
 hands of his heirs or devisees. Warvelle Abstracts, p. 455. But in 
 Virginia, to make the lien effective after one year from the death of the 
 decedent, suit for the administration of the assets of his estate must have 
 been begun, and a notice thereof, or Us pendens, entered in the register of 
 conveyances. Va. Code, 1887, 2667, 3566. 
 
 Miscellaneous Statutory Liens. 
 
 We have now enumerated the principal liens or incumbrances which may 
 bind an estate in the hands of a subsequent purchaser. It is probable, how- 
 ever, that special or peculiar liens exist by statute in some of the States, 
 Wherever such is the case they should be added to the foregoing summary 
 and borne in mind when examining a title. 
 
 (2.) DEFECTS AND OBJECTIONS TO TITLE WHICH APPEAR FROM PUBLIC 
 RECORDS, OTHER THAN REGISTERS OF DEEDS AND JUDGMENT LIEM 
 DOCKETS. 
 
 Taxes and Assessments. 
 
 These are everywhere made lier s upon the real estate of the taxpayer. 
 They are to be searched for at the tax offices.
 
 ABSTRACT OF TITLE. 179 
 
 Irregular, Illegal and Invalid Tax Sales. 
 
 If a tax deed is found in the vendor's chain of title, it is of vital import- 
 ance to inquire (1) whether the tax or assessment was authorized by law; 
 (2) whether the tax or assessment was laid or imposed in accordance with 
 the law, and (3) whether all the requirements of the law preliminary to the 
 sale and execution of the deed had been complied with. The first inquiry 
 is, of course, to be determined by an inspection of the law. The other two 
 inquiries may, in a great measure, be determined by an examination of the 
 records in the tax offices, it being the policy of the law that, as far as pos- 
 sible, the fulfillment of all of its requirements in regard to the imposition 
 and collection of taxes shall be evidenced by documents returned to, and 
 entries made in the records of the tax office. As to the various respects in 
 which a tax title may be defective, see Blackwell on Tax Titles; Black on 
 Tax Titles; 2 Washb. Real. Prop. 221 (541); Devlin on Deeds, ch. 38, p. 647. 
 By the common law, the burden devolved on the purchaser of a tax title to 
 show affirmatively that all the prerequisites to a valid sale for taxes had 
 been complied with, but by statute in most of the States the tax deed is 
 made presumptive evidence of a valid tax and valid sale, and the burden 
 imposed upon the adverse claimant to show an infirmity in the tax or the 
 sale. 
 
 Want of Jurisdiction in Judicial Proceedings. 
 
 The examination of a title derived through a sale under a judgment or 
 decree would be an interminable affair if the purchaser were obliged to 
 inquire whether any error or irregularity existed in the proceedings for 
 which the judgment or decree might be reversed. So far as the proceedings 
 antecedent to the sale is concerned, he is only required to see that the court 
 had jurisdiction to render the judgment or decree under which the sale was 
 had. This, in most cases, will appear from the face of the proceedings; as 
 where the pleadings state a case not within the jurisdiction of the court, or 
 where there is nothing to show service of process on the defendant, or where 
 the pleadings omit some formality required by law to give the court jurisdic- 
 tion; for example, the want of an affidavit to the bill in a suit for the sale of 
 an infant's lauds. Numerous other instances will occur to the reader. But 
 the court may have been without jurisdiction to render the judgment or 
 decree, and there may be nothing upon the face of the pleadings or the pro- 
 ceedings to apprise the purchaser of that fact. For example, if A. should 
 file his bill against his coparcener, B., for partition, fraudulently omitting C., 
 another coparcener, the decree in the cause would not bind C., who might 
 thereafter file his bill against the purchaser under the decree, and have a 
 re-partition of the premises. In such a case the purchaser could discover the 
 want of jurisdiction in the court only by inquiries made in pai*. 
 
 LM Pendens. 
 
 By the common law all persons are charged with notice of the proceedings 
 of the courts, and a purchaser of property whereof the title was in litigation 
 takes subject to whatever judgment or decree may be pronounced in respect
 
 180 MARKETABLE TITLE TO EEAL ESTATE. 
 
 thereto. In the absence of any statute to the contrary, it is apprehended that 
 the purchaser would be bound, though he had no actual notice of the litiga- 
 tion, and though no memorandum thereof had been registered, docketed or 
 indexed in the "Hgiitij offices. 
 
 Senior Patents or Grants of Public Lands. 
 
 These, of course, will appear from the records in the land offices of the 
 BTCBal States, and of the United States. 
 
 Proceedings in Eminent Domain. 
 
 Such, for example, as a municipal ordinance providing for the opening of 
 a street or alley. All persons are presumed to hare notice of such proceed- 
 ings. See Warrelle Abst. 360. 
 
 (Hi) 
 
 79. DEFECTS AND OBJECTIONS TO TITLE ARISING FROM MAT- 
 TERS IN PAIS, OR THOSE WHICH APPEAR UPON INQUIRY DEHOR8 
 THE PUBLIC RECORDS, AND APART FROM ANT INSTRUMENT 
 UNDER WHICH TITLE IS CLAIMED. If the vendor have the actual 
 legal title to the estate, the purchaser is not concerned to inquire 
 whether any equities exist in third parties by which that title may be 
 defeated, unless, of course, there are facts known to him which should 
 lead him to inquire as to the rights of third parties. If this were not 
 true, there would be little assurance of safety in the purchase of any 
 title, and there would be practically no limit to the inquiries inpais 
 which a purchaser would be compelled to make. But it is "to be 
 observed that this rule applies only where the vendor has the actual 
 legal title, in other words, as has been elsewhere said, where the legal 
 title is in A., and the equitable title is in B., and a third person buys 
 from A. without notice of B.'s equity. 1 The rules respecting pu re Lasers 
 without notice are framed for the protection of him who purchases 
 a legal estate and pays die entire purchase money without notice of 
 an outstanding equity. They do not protect a person who acquires 
 no semblance of tide. 9 In such a case die rule caveat eniptor 
 applies.* Thus, as a simple illustration, if die vendor held under a 
 forged deed, die purchaser would not be protected, while if die 
 deed was genuine, but merely voidable, as having been procured 
 by fraudulent representations, or as having been executed in fraud 
 
 1 Wells v. Walker, 29 Ga. 450. 
 
 Vattier v. Hinds, 7 Pet. (U. 8.) 907, 271; Sampeyrac T. United States, 7 Pet 
 (U. 8.) 222; Boone v. Chiles, 10 Pet. (U. 8.) 177; Wilson T. Mason, 1 Cranch 
 (U. S.), 45. Cogel v. Raph, 24 Minn. 194. Snelgrove T. Snelgrove, 4 Des. (8. C.) 
 Eq. 274. 
 
 'Hurst T. McNeil, 1 Wash. (C. C.) 70. Daniel T. Hollingshed, 18 Ga. 190.
 
 ABSTRACT OF TITLE. 181 
 
 of creditors, and the purchaser had no notice of the facts, he could 
 not be deprived of the estate. This distinction is further illustrated 
 by the case of Texas Lumber Manufacturing Company v. Branch. 1 
 Rueg, the owner of a large real property, died, leaving a wife and a 
 brother and sister. After the death of Rueg. his wife gave birth to 
 a child by him, which child died very shortly after birth, leaving its 
 mother as its heir, who thus became entitled to the Rueg estate. 
 But the brother and sister of Rueg, conceiving themselves to be his 
 heirs, conveyed his lands to a third person. Meanwhile, Rueg's 
 wife, presumably ignorant of her rights as heir of her infant child, 
 laid no claim to the estate, but married again and died, leaving chil- 
 dren, who brought an action, as her heirs, to recover the estate from 
 one claiming under the deed executed by the brother and sister of 
 Rueg. The defendant pleaded that he was a honafide purchaser of 
 the lands, without notice of the plaintiffs' rights, but the court 
 held that the doctrine of "purchaser without notice" did 
 not apply in such a case, those under whom the defendants 
 claimed having had no semblance of title to the estate. But 
 while a purchaser for value without notice cannot be affected 
 by matters in pais, which establish rights in equity in favor of third 
 persons against the vendor, he is not thereby excused from making 
 inquiries in pais which would show the absence of any legal title in 
 the vendor. The rule caveat emptor applies as well where the want 
 of title is to be established by the testimony of witnesses only, as 
 where it appears from the public records or from the instrumento 
 under which the vendor claims. Among other equities which may 
 avoid the title of the vendor, but which do not affect a purchaser 
 for value without notice, may be mentioned the following: The 
 right of a third person to impress the estate with a resulting trust ; * 
 a right to treat as a mortgage a deed that is absolute in form ; * a 
 right to vacate a deed as having been procured from the grantor by 
 force, fraud, duress or mistake ; * the right to vacate a deed executed 
 
 1 60 Fed. Rp. 201. 
 
 2 Washb. Real Prop. 484 (177). 
 
 Hicks v. Hicks, (Tex.) 26 8. W. Rep. 227. 
 
 4 Wood v. Mann, 1 Sumn. (C. C.) 500. 3 Washb. Real Prop. (4th ed.) 260 (665), 
 389. But see, as to duress, Anderson v. Anderson, 9 Kans. 116, where it was held 
 that a married woman's deed, executed under duress, was void even as againit a 
 purchaser for value without notice. Contra, White v. Graves, 107 Mass. 325.
 
 182 MARKETABLE TITLE TO REAL ESTATE. 
 
 in fraud of creditors ; * the right to fix a lien upon the premises for 
 the purchase money ; 2 the right to compel a conveyance of the legal 
 title from the vendor. The general rule is that a purchaser for 
 ealue and without notice, who has paid the purchase 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 pat. As a mat- 
 ter of fact these inquiries are seldom made in respect to remote grantors, the 
 risk in such cases being generally considered slight . 
 Ad/verse 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 maj be 
 nothing to indicate a want of title in the vendor, but the fact that the premi- 
 ses 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, 
 amd the Happening or Non-happeni/ng 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 delwr* the record, and 
 should be embodied in affidavits 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, as 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 protect the 
 purchaser. Gray v. Jones, 14 Fed. Rep. 83. Reck v. Clapp, 98 Pa. St. 581; 
 Arrison v. Harmsted, 2 Barr (Pa.), 191; Wallace v. Harmsted, 8 Wright 
 (Pa.), 494; 53 Am. Dec. 603; Van Amringe v. Morton, 4 Wharton (Pa.), 382; 
 84 Am. Dec. 517. 
 
 1 3 Washb. Real Prop. (4th ed.) 333. 
 
 * Warvelle Vend. 699. 
 
 1 Cogel v. Raph, 24 Minn. 194. Flannagan v. Oberthier, 50 Tex. 379.
 
 ABSTRACT OF TITLE. J83 
 
 Dower and Curtesy Rights. 
 
 The existence of these must be ascertained by inquiries dehort 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 aliuTule, 
 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 sustained by 
 the affidavits of those having knowledge of the fact of inheritance. 
 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 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. 
 
 Seeante, " Caveat Eraptor," 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 posses- 
 sion is always presumed to have followed the several conveyances under 
 which the vendor claims, and an inquiry into the fact of possession 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 ilie Period During 
 which such a Deed is by Statute, in some States, Allowed to 
 Relate lack and Bind Subsequent Purchasers from the Time of 
 Acknowledgment. 
 
 See the statutes of the several States. Martindale's Abst. p. 26.
 
 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. 
 
 80. 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- 
 duct 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 Ameri- 
 can practice. More v. Smedburgh, 8 Paige (N. Y .), 600. But such a definition 
 is perhaps too broad for the English practice, for there it has been 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. Port, 4 Taunt. 334; Hume v. Bent- 
 ley, 5 De G. & 8m. 520; Geoghegan v. Connolly, 8 Ir. Ch. Rep. 598. Such a 
 case, however, is not likely to arise in America, all conveyances as a general rule 
 being there spread upon the public records and open to the inspection of the pur- 
 chaser. The general doctrines relating to waiver of objections to title will be 
 found in Mr. Pry's valuable treatise on Specific Performance (3d Am. L), 
 1805.
 
 WAIVER OF OBJECTIONS TO TITLE. 185 
 
 been executed ; for example, the right to rescind the contract on the 
 ground of fraud, assuming that the conveyance was accepted without 
 knowledge of the fraud. 1 
 
 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 executory, 
 waive the right to a conveyance with covenants for title adequate 
 for his protection in a case in which the contract entitles him to such 
 ovenants. An act which amounts to a waiver of the right to reject 
 a defective title is not necessarily a waiver of the right to compen- 
 sation for the defect. 2 Neither is an agreement by the purchaser 
 
 1 Post, this chapter, 82, 84. 
 
 J 1 Dart Vend. 437; 1 Sugd. Vend. 343. Calcraft v. Roebuck, 1 Ves. Jr. 221. 
 Roach v. Rutherford, 4 Desaus. (S. C.) 126; 6 Am. Dec. 606. See, also, Palmer 
 T. 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 pro- 
 nounced good by the purchaser's attorneys. The purchaser then paid part of the 
 purchase money, took possession, made material alterations in the premises, col- 
 lected rents, and otherwise treated the contract as valid and subsisting. After- 
 wards, 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 tJie sellers were not absolved from their obligation to concey 
 to the purchaser at the proper time a good title, free from incumbrante. In Goddin 
 T. 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 
 proposition, 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 eases, 
 proceed with the bargain and look to the covenants which he is to receive for his
 
 186 MARKETABLE TITLE TO EEAL ESTATE. 
 
 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. 1 
 
 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 inter- 
 est as the vendor had, expressly taking the risk of the title, there 
 can be, in the nature of things, no opportunity for any question 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 unincumbered 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 ele- 
 ment of the contract between the parties, but rather an implica- 
 tion of law from the acts of the purchaser. 3 Where, in a contract 
 for the sale of land, a day is fixed for the conveyance of the prop- 
 erty, if the vendee wishes to object to the title he must give notice 
 of his objections a reasonable time previous to the day fixed for 
 making the conveyance to enable the vendor to remove the objec- 
 tions to the title and to make the conveyance at the time specified, 
 or a court of equity may consider a strict performance of the con- 
 tract by a conveyance on the specified day as waived. 8 But a pur- 
 chaser may in some cases be deemed to have waived his right to a 
 strict performance of the contract on a specified day without being 
 
 protection. True, a purchaser may expressly agree to take the title, such aa it 
 is, without warranty, but it seems scarcely fair to him to imply such an agree- 
 ment from the mere fact of his taking possession with knowledge of the defectire 
 title. 
 
 1 Leach v. Johnson, 114 N. C. 87. 
 
 *1 Sugd. Vend. (8th Am. ed.) 517 (343). 
 
 'More v. Smedburgh, 8 Paige (N. Y.), 800. 
 24
 
 WAIVES OF OBJECTIONS TO TITLE. 187 
 
 held to have waived his right to rescind in case the vendor be 
 unable eventually to remove the objections to the title. 1 
 
 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. 1 
 
 A purchaser may waive or lose his right to rescission by an 
 express confirmation of the contract, 8 or by dealing with the prop- 
 erty as his own after knowledge of the circumstances which entitle 
 him to rescission, 4 or by a presumed acquiescence in the title dis- 
 closed by the vendor, even though possession has not been taken. 5 
 But the purchaser must have been fully apprised of the facts 6 and 
 
 I CARR, J., in Jackson v. Ligon, 3 Leigh (Va.), 194 (179). 
 
 I 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 purchaser'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, 18 Ves. 
 505. An objection to the title on the ground of incumbrances is waived where, 
 upon an offer to procure releases, the vendee's attorney says that it is unneces- 
 sary, as he proposes to rely upon a deficiency in the area of the premises. Cogs- 
 well v. Boehm, 5 N. Y. Supp. 67. 
 
 4 Campbell v. Fleming, 1 Ad. & El. 40. 2 Sugd. Vend. (8th Am. ed.) 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 mouths' 
 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. Wilcoi v. 
 Lattin, 93 Cal. 588; 29 Pac. Rep. 226. 
 
 Pordyce 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 an-1 
 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 amounting to a waiver. 
 1 Sugd. 267. Cutts v. Thodey, 13 Sim. 206. 
 
 Life Asson. v. Siddall, 7 Jur.(N. S.) 785. See. also, cases cited 1 Sugd. Vend. 
 (8th Am. e<l.) 384. It seems that if the vendor was guilty of fraud in respect to
 
 188 MARKETABLE TITLE TO BEAL ESTATE. 
 
 of his legal rights, 1 and the effect of his acts, 2 and must have acted 
 of his own free will 3 before he will be deemed to have waived his 
 right to recission. 
 
 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. 4 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; 5 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. 6 
 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. 7 
 
 The purchaser does not waive his right to recission for defect of 
 title by reselling the premises, since it must be presumed that he 
 intends to obtain a good title himself in order to perform his con- 
 tract with his vendee. 8 An approval of the title by the purchaser's 
 counsel will not bind the purchaser as a waiver of objections. 9 Nor 
 will the purchaser's acceptance of an abstract as satisfactory 
 amount to a waiver of objections not appearing on the abstract, 
 and if he can prove the title bad aliunde, he will be entitled to 
 rescind. 10 Nor do acts of ownership, where possession has been 
 authorized, amount to a waiver. 11 The acceptance of the abstract 
 
 the title, the purchaser will be presumed not to have been appraised of his 
 rights. Baugh v. Price, 1 Wil. 320. 
 
 1 Cockerell v. Cholmeley, 1 Rus. & My. 425. 
 
 'Dunbar v. Tredennick, 2 Bal. & Beat. 317 ; Waters v. Thorn, 22 Beav. 547. 
 
 *1 Sugd. Vend. 253, citing Crowe v. Ballard, 3 Bro. C. C. 117; Scott v. 
 Davis, 4 My. & Cr. 91; Wood v. Downes, 18 Ves. 120; King v. Savery, 5 H. L. 
 Gas. 627; Brereton v. Barry, 11 Ir. Ch. 109. 
 
 1 Sugd. Vend. 343. Dunn v. Mills, (Kans.) 79 Pac. 146, a case in which 
 the purchaser made no objection to the abstract furnished by the vendor, and 
 took possession of the premises. In Kreibich v. Martz, 119 Mich. 343; 78 N. 
 W. 124, a case in which the vendor had subsequently conveyed the premises 
 to a stranger, it was held that the purchaser waived his right to rescind 
 by requiring the stranger to furnish him with an abstract of title, and nego- 
 tiating with him respecting the payments. 
 
 8 Dowson v. Solomon, 1 Drew. & Sm. 1. 
 
 Ex parte Sidebotham, 1 Mon. & Ay. 655. 
 
 7 Infra, this chapter. 
 
 * Knatchbull v. Grueber, 1 Mad. 170. McCracken v. San Francisco, 16 Cal. 591. 
 
 Deverell v. Bolton, 18 Ves. 505; Harwood v. Bland, 1 Fla. & Ke. 540. 
 
 10 1 Sugd. Vend. 347 ; 1 Yo. & Coll. 570. 
 
 "Duncan v. Cafe, 2 M. & W. 244. See post, "Waiver by Taking Pos- 
 session." 81.
 
 WAIVER OF OBJECTIONS TO TITLE. 189 
 
 as satisfactory, of course, does not deprive the purchaser of the 
 right to require that the abstract shall be supported by proper 
 evidence when necessary. 1 Nor does the purchaser waive objec- 
 tions to the title by retaining the abstract a reasonable length of 
 time to enable him to make necessary searches of the record for 
 the purpose of verifying the abstract. 2 
 
 81. WAIVER BY TAKING POSSESSION. The general rule is 
 that if the purchaser takes possession of the estate with knowledge 
 of incumbrances and defects of title, he thereby waives his right 
 t* rescind the contract, or to recover damages against the 
 vendor.* But this rule does not apply when the purchaser was 
 not aware of the objections to the title when he took possession ; 4 
 nor where the contract authorizes him to take possession before a 
 title is made ; 5 nor where under the contract he is entitled to call 
 
 1 Southby v. Hutt, 2 My. & Cra. 207. 
 
 'Lessenich v. Sellers, 119 Iowa, 314; 93 N. W. 348. 
 
 *1 Sugd. Vend. (8th Am. ed.) 11, 517. See post, "Waiver by Purchasing 
 with Notice of Defect," 85. Vancouver v. Bliss, 11 Ves. 464; Ex parteSide- 
 botham, 1 Mon. & Ayr. 655; 2 Mon. & Ayr. 146; Calcraft v. Roebuck, 1 Ves. 
 Jr. 226. Tompkins v. Hyatt, 28 N. Y. 347 ; Caswell v. Black River Mfg. Co., 
 14 Johns. (N. Y.) 453. Christian v. Cabell, 22 Grat. (Va.) 99. Barnett v. 
 Garnis, 8 Ala. 373. Mitchell v. Pinckney, 13 So. Car. 203, 213; 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. In 
 Beck v. Simmons, 7 Ala. 76, it was said by OBMOND, J. : " It would be contrary 
 to equity and good conscience to permit one who proceeds so far in a pur- 
 chase as to obtain possession with knowledge of a defect in the title to object 
 afterwards the want of a title as a reason for not complying with his con- 
 tract. If he knows that a defect can only be obviated by a judicial proceeding 
 it is impossible to suppose that the time stipulated for the completion of the 
 contract was considered by him an essential ingredient of the contract, as it 
 could not be known what length of time it might take to obtain the title. The 
 question, therefore, in such cases is not whether the party was able to make the 
 title on the day stipulated, but whether there was unreasonable delay in obtain- 
 ing it." Citing Seton v. Slade, 7 Ves. 265 ; Colton v. Wilson, 3 P. Wms. 190. 
 
 4 1 Sugd. Vend. (8th Am. ed.) 12. Stevens v. Guppy, 3 Rus. 171; Kirtland 
 v. Pounsett. 2 Taunt. 145 ; Dowson v. Solomon, 1 Drew. & Sm. 1 ; Hearne v. 
 Tomlin, Peake. Ca. 192. Gaus v. Renshaw, 2 Pa. St. 34; 44 Am. Dec. 152. 
 But see Briggs v. Gillam, cited in 1 Rich. Eq. (S. C.) 407, 408, where it wa* 
 held that a party who goes into possession without knowledge of the title, 
 and who afterwards, coming to the knowledge, continues in possession for a 
 considerable time, using the property as his own, will be compelled to accept 
 such title as the vendor can make. 
 
 1 Sugd. Vend. 343, citing Dixon v. Astley, 1 Mer. ch. 4, 4 ; Wright v. 
 Griffith, 1 Ir. Ch. 695; Sibbald v. Lourie, 18 Jur. 141; Thompson v. Dulles, 5 
 Rich Eq. (S. C.) 370; Stevens v. Guppy, 3 Rus. 171; Hendricks v. Gillespie, 25 
 Grat. (Va.) 181. This exception renders the rule comparatively of little import- 
 ance in America, for in the vast majority of cases, especially those in which the
 
 MARKETABLE TITLE TO EEAL RESTATE. 
 
 for a good title and takes possession with the concurrence of the 
 vendor ;* nor where the vendor had agreed to remove the objection 
 to the title. 2 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. 3 It is obvious that great injustice may be 
 done the purchaser by a too liberal interpretation 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. 4 The mere act 
 of taking possession of real estate and exercising acts of ownership 
 over it will not preclude the purchaser from his right to examine 
 the title, unless the court is satisfied that he intended to waive and 
 has actually waived such right. The waiver is a question of inten- 
 tion and one of fact from all the circumstances, and not an arbi- 
 trary presumption of law from the mere fact of taking possession. 5 
 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 
 
 payment of the purchase money and the execution of the conveyance are 
 deferred, the contract provides that the purchaser shall 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 Adams 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. Bur- 
 nett v. Wheeler, 7 M. & W. 364. In this case it was held that an express 
 agreement to make a good title bound the vendor at law to remove defects in 
 the title kntyvn 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 euch agreement. Goss v. Nugent, 2 Nev. & Man. 35. 
 
 1 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. 
 
 1 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. 
 
 4 In Corey v. Matheson, 7 Lans. (N. Y.) 80, it was said by MTTLLIW, P. J. : 
 "It has been repeatedly said that a purchaser who takes and retains possession of 
 lands under a contract of purchase is estopped from alleging a defect in the ven- 
 dor's title. 1 Billiard 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 neces- 
 sarily to lessen the value of the property, it will not be held waived except upon 
 the most conclusive evidence that it was his intention 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. Jones v. Taylor, 7 Tex.- 240; 56 Am. Dec. 4S. 
 
 Page v. Greeley, 75 111. 400.
 
 WAIVEB OF OBJECTIONS TO TITLE. 191 
 
 waived his objections to the title. 1 It has been held that a pur- 
 chaser 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. 2 
 
 When the purchaser becomes aware of facts respecting the title 
 which gives 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- 
 brances, until he is sued for the purchase money. 3 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. 4 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 ob- 
 jections to the title. 5 
 
 82. LACHES OF PURCHASER. The right to rescind may also 
 be lost by lapse of time, even though the time elapsed be short of 
 the Statute of Limitations. 6 Especially does, this rule apply when 
 the conditions of the parties have so changed that the vendor can- 
 not be put in statu quo. 1 The purchaser must exercise his right to 
 rescind within a reasonable time ; there is no precise rule by which 
 to determine what will constitute a reasonable time, each case being 
 left to the sound discretion of the court, having in view the nature 
 
 'Canton Co. v. Balto. & Ohio R. Co., (Md.) 29 Atl. Rep. 821. Where the 
 purchaser sold certain fixtures on the premises to the vendor's husband, but 
 when the fixtures were being taken down suggested that their removal be de- 
 ferred until the examination of the title should be completed and found satis- 
 factory, it was held that the acts of the purchaser in the premises did not 
 constitute a waiver of the right to object to the title. Kouiitze v. Hellmuth, 
 67 Hun (N. Y.), 343; 22 N. Y. Supp. 204. 
 
 Whitney v. Allaire, 1 Comst. (N. Y.) 305. 
 
 Hart v. Handlin, 43 Mo. 171. Dunn v. Mills, (Kans.) 79 Pac. 146, 502. 
 
 4 1 Sugd. Vend. (8th Am. ed.) 517 (343). Dowson v. Solomon, 1 Drew. A 
 8m. 1. Burroughs v. Oakley, 3 Swan, 159. 
 
 Hun v. Bourdon, 68 N. Y. Supp. 112; 57 App. Div. 351. 
 
 *1 Sugd. Vend. 253. Medlicot v. O'Donel, 1 Bal. & Beat. 156; Morse v. 
 Royal, 12 Ves. 374. Corbett v. Shulte, 119 Mich. 249; 77 N. W. 947. Lanitz 
 T. King, 93 Mo. 513; 6 S. W. Rep. 263, where the plaintiff delayed twenty 
 months in tendering performance and demanding a deed. Colemnn v. Bank, 
 115 Ala. 307; 22 So. 84; seven years. 
 
 T Hunt v. Silk, 5 East, 449. Caswell v. Black River Mfg. Co., 14 Johns. (N. 
 Y.) 453. Smith v. Detroit Min. Co., 17 S. Dak. 413; 97 N. W. 17.
 
 192 
 
 MARKETABLE TITLE TO HEAL ESTATE. 
 
 of the property affected, changes in its character and value, and 
 the rights of persons interested. 1 Time will begin to run from the 
 period when the right to relief was, or, with reasonable diligence, 
 might have been discovered.* The purchaser is not chargeable with 
 laches where both parties knew the title to be defective, and that 
 it would take considerable time to remove the defect. 8 Kor where 
 the delay is caused by the vendor's promises to make the title good. 4 
 But nothing can be clearer than the equity which compels him 
 to complete the contract in a case in which, with knowledge of the 
 objection to the title, he continues in the uninterrupted possession 
 and enjoyment of the premises, without having paid any part of 
 
 1 1 Sugd. Vend. ( 8th Am. ed. ) 389, n., where a large number of decisions illus- 
 trating the doctrines of equity in relation to the enforcement of stale demands 
 and laches in the assertion of rights are collected, but many of which have n 
 bearing upon the subject of rescission for defect of title other than by way of 
 analogy. It would seem that the rules respecting waiver of objections to title 
 presumed from laches apply only in cases where the purchaser had possession ; 
 otherwise, it would appear that there is as much reason to charge the vendor 
 with laches in the enforcement of his rights as to fix that responsibility upon the 
 purchaser. In Roach v. Rutherford, 4 Desaus. (S. C.) 126; 6 Am. Dec. 606, 
 long possession by the purchaser and a confession of judgment for the purchase 
 money were held a waiver of the right to rescind. In Guttschlick v. Bank of the 
 Metropolis, 5 Cr. (C. G. U. S.) 435, the purchaser having rejected an insuffi- 
 ciently executed deed, judgment was given in his favor for restitution of the 
 purchase money, though he had been in possession seven or eight years. N 
 question of waiver of the right to rescind appears to have been raised. IB 
 the following cases a waiver of that right was presumed from long-continued 
 possession and laches on the part of the purchaser: Adams v. Heathcote, ! 
 Jur. 301. Tompkins v. Hyatt, 28 N. Y. 347 ; Ballard v. Walker, 3 Johns. Cas. 
 (N. Y.) 60; Watt v. Rogers, 2 Abb. Pr. (N. Y.) 261; Taylor v. Fleet, 1 Barb. 
 (N. Y.) 471. Bell v. Vance, 6 Litt. (Ky.) 108; Hart v. Bleight, 3 T. B. Moa. 
 (Ky.) 273; Lacey v. McMillan, 9 B. Mon. (Ky.) 523. So. Pac. R. Co. T. 
 Choate, 132 Cal. 278; 64 Pac, 1; Latimer T. Capay Valley L. Co., 137 Cai. 
 286; 70 Pac. 82. Vendees who have been in possession more than thirty 
 years, making no effort to perfect their title or to rescind the contract, will, 
 if reasonably secure in fheir title, be compelled to take it and pay the pur- 
 chase money. Edwards v. Van Bibber, 1 Leigh (Va.), 183. As the vendor cam- 
 not perfect his title where time is material, so neither can the purchaser, 
 buying with knowledge that the title is defective, withhold the purchase 
 money for an unreasonable time and then demand specific performance, the 
 property having in the meanwhile greatly increased in value. Taylor T. 
 Williams, 45 Mo. 80. In Taylor v. Williams, (Colo.) 31 Pac. Rep. 504, it 
 was held that a delay of a month by the purchaser in electing to rescind the 
 contract on the ground of defects of title shown by the abstract did not de- 
 prive him of the right to recover back bis deposit and expenses. 
 
 * 1 Sugd. Vend. 254. 
 
 Vail v. Nelson, 4 Rand. (Va.) 478. 
 
 'Sniffer v. Diet*, 53 How. Pr. (N. Y.) 372.
 
 WAIVEB OF OBJECTIONS TO TITLE. 193 
 
 the purchase money, 1 and without offering to restore the premises 
 to the vendor. 2 
 
 82-a. Failure to object on " law day." It has been held 
 that a purchaser who makes specific objections to the title on the 
 u law day," that is, the day fixed for the performance of the con- 
 tract, cannot subsequently raise a new objection, even if it is valid, 
 where it is one which might have been removed by the vendor. 
 He must proceed with the contract and rely for his protection 
 upon the covenants for title which he is to receive. 3 
 
 83. WAIVER BY CONTINUING NEGOTIATIONS WITH THE 
 VENDOR. If the purchaser proceeds with his negotiations after he 
 lias 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, 4 notwithstanding the expiration of the time ap- 
 pointed for the completion of the contract, and though it will re- 
 quire a considerable further time in which to perfect the title. 6 
 But this rule does not apply if he continues in his subsequent 
 negotiations to insist upon the objections to the title. 6 As has been 
 
 'Kennedy v. Woolfolk, 3 Hayw. (Tenn.) 195. 
 
 3 So. Pac. R. Co. v. Choate, 132 Cal. 278; 64 Pac. 292. 
 
 3 Higgins v. Eagleton, 155 N. Y. 466, 50 N. E. 287, citing Benson v. Crom- 
 vvell, 6 Abb. Pr. Cases, 83, 85. 
 
 4 Griggs v. Woodruff, 14 Ala. 9. Rader v. Neale, 13 W. Va. 373. Grigg v. 
 Landis, 6 C. E. Gr. (N. J. Eq.) 494. Vail v. Nelson, 4 Rand. (Va.) 478. 
 Home v. Rogers, 110 Ga. 362; 35 8. E. 715. In Flint v. Woodin, 9 Hare, 618, 
 it was said by Sir J. WIGRAM, V. C. : "A purchaser who finds there is an ob- 
 jection, if he intends to rely upon it, must take his stand upon it at once; 
 he cannot go on treating as if he had waived the objection and then turn 
 round afterwards and attempt to avail himself of it." See, also, McMurray 
 v. Spicer, L. R., 5 Eq. 527. A purchaser at an auction sale not informed of an 
 outstanding interest in infant heirs may abandon his purchase and refuse to 
 proceed; but, if he go on with the purchase, content to take such conveyance 
 as can then be made and look to chancery for title to the infants' interests, 
 he thereby waives his right to rescind. Goddin v. Vaughn, 14 Grat. (Va.) 
 102. The offer to rescind should be made as soon as the defect is discovered. 
 Nowell v. Turner, 9 Port. (Ala.) 420. An offer made by the purchaser, after 
 examining the title, to take the land if he might pay for it in notes of third 
 persons, which offer the vendor refused, is no waiver of the right to reject the 
 title if bad. Mead v. Fox, 6 Gush. (Mass.) 199. 
 
 B 1 Sugd. Vend. 265. Seton v. Slade, 7 Ves. 265 ; Pincke v. Curtiss, 4 Bro. 
 C. C. 329; Webb v. Hughes, L. R., 10 Eq. 281. Riggs v. Pursell, 66 N. Y. 193, 
 198. Vail v. Nelson, 4 Rand. (Va.) 478; Goddin v. Vaughn, 14 Grat. (Va.) 
 125. Owen v. Pomona L. & W. Co., 131 Cal. 530; 63 Pac. 850; Hawes v. 
 Swanzey, 123 Iowa, 51 ; 98 N. W. 586. Rader v. Neal, 13 W. Va. 373, where 
 the vendor contracted to convey when he should have procured title from a 
 designated person. 
 
 Knatchbull v. Grueber, 1 Madd. 170. 
 13
 
 194 MARKET TITLE TO REAL ESTATE. 
 
 tersely said: "A treaty cannot waive that about which the pur- 
 chaser treats." 1 Payment of any part of the purchase money, 
 after notice of a defect in the title, will, as a general rule, be 
 treated as a waiver of the right to rescind. 2 
 
 84. WAIVEB IN CASES OF FRAUD. The rule that the pur- 
 chaser must promptly inform the vendor of his intention to rescind 
 the contract on discovery of a defect in the title, especially applies 
 in cases where the vendor was guilty of fraudulent representations 
 in respect to the title. 3 If the purchaser continues to deal with the 
 property, 4 or pays part of the purchase money, 5 or accepts a convey- 
 ance 6 after knowledge of the fraud, he waives his right to rescind, 
 
 'Id. 1 Sugd. Vend. (8th Am. ed.) 347. 
 
 'Caswell v. Black River Mfg. Co., 14 Johns. (N. Y.) 453. Ayres v. Mitchell, 
 3 Sm. & M. (Miss.) 683. Webb v. Stephenson, (Wash.) 39 Pac. Rep. 952. 
 
 3 Alexander v. Utley, 7 Ired. Eq.(N. C.) 242; McDowell v. McKesson, 6 Ired. 
 Eq. (N. C. ) 278. Magennis v. Fallen, 2 Mol. 591. Flight v. Booth, 1 Bing. N. C. 
 370. Houston v. Henley, 2 Del. Ch. 247, where the purchaser remained in pos- 
 session four years after discovering the fraud. Colyer v. Thompson, 2 T. B. 
 Mon. (Ky.) 16. Patten v. Stewart, 24 Ind. 332. Negley v. Lindsay, 67 Pa. St. 
 226; 5 Am. Rep. 427. Cunningham v. Fithian, 2 Gilm. (111.) 650. Laurence v. 
 Dale, 3 Johns. Ch. (N. Y.) 23; Masson v. Bovet, 1 Den. (X. Y.) 69; 43 Am. Dec. 
 651. In Booth v. Ryan, 31 Wis. 45, the purchaser, four months after discovery 
 of the fraud, paid a part of the purchase money, and seven months later paid 
 another part of the purchase money, without objecting to the fraud in respect to 
 the title, and did not ask for a rescission of the contract until a suit had been 
 commenced to foreclose the purchase money mortgage eighteen months after the 
 fraud had been discovered. It was held that these facts constituted a waiver of 
 the right to rescind. Where a purchaser died eight months after the sale 
 without discovering the vendor's fraud as to the title, and his heir, within a 
 year after discovery of the fraud, and four years after the sale, filed a bill to 
 rescind the contract, it was held that the right to rescind had not been lost or 
 waived by delay. Foster v. Gressett, 29 Ala. 393. In Smith v. Babcock, 2 
 Woodb. & M. (U. S.) 246, a delay of one year after discovery of the fraud 
 was held no waiver. 
 
 *1 Sugd. Vend. (14th ed.) 252, where it is said: "If a purchaser, instead 
 of repudiating the transaction, deal with the property as his own, he is 
 bound, although he afterwards discovers a new circumstance of fraud, for 
 that can be considered only as strengthening the evidence of the original 
 fraud, and it cannot revive the right of repudiation which has been once 
 waived." Campbell v. Fleming, 1 Ad. & El. 40. 
 
 8 Pollard v. Rogers, 4 Call. (Va.), 239. Haldane v. Sweet, 55 Mich. 196. 
 Lockridge v. Foster, 4 Scam. (111.) 569. Glasscock v. Minor, 11 Mo. 655. 
 Davis v. Evans, 62 Ala. 401 ; Garrett v. Lynch, 45 Ala. 204. A sub-purchaser 
 who assumes the payment of the original purchase money, and pays part of it 
 after discovering objections to the original vendor's title, has no remedy 
 against his immediate vendor, though the latter may have fraudulently rep- 
 resented the title to be good. Blanchard v. Stone, 15 Vt. 271. 
 
 Vernol v. Vernol, 63 N. Y. 45. In Patton v. England, 15 Ala. 71, it was
 
 WAIVER OF OBJECTIONS TO TITLE. 195 
 
 and must look to his remedy upon the covenants. The same rule 
 prevails where fraudulent misrepresentations have been made in 
 respect to the value, quality and situation of the purchased estate. 1 
 
 It has been held that declarations of the purchaser prior to the 
 tender of a conveyance by the vendor, that he would not insist on 
 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. 2 
 
 8 5. WAIVER BY PURCHASING WITH NOTICE OF DEFECT OR 
 GENERAL RULE. It has been seen that if the purchaser take pos- 
 session 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. 3 A fortiori, if he purcluise 
 knowing the title to be defective or the property incumbered, will 
 he be denied the right to rescind, 4 unless the defect or incumbrance 
 
 held that if the purchaser accepts a deed with warranty, lie cannot set up 
 fraud as a defense to an action for the purchase money. The inference, how- 
 ever, from the facts stated in the case is that the purchaser accepted the con- 
 veyance after knowledge of the fraud. 
 
 1 Marshall v. Oilman, 47 Minn. 131 ; 49 N. W. Rep. 688. 
 
 2 Swan v. Drury, 22 Pick. (Mass.) 485. 
 * Ante, 81, post, 246. 
 
 4 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.), 
 90; 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; Younie v. Walrod, 104 Iowa, 475; 73 X. W. 1021, where the ob- 
 jection 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. McClung, 9 Grat. (Va.) 336. Where 
 an auctioneer told a prospective bidder that the purchase money would be
 
 196 MARKETABLE TITLE TO REAL ESTATE. 
 
 was contemplated by both parties at the time of the purchase, and 
 the vendor's .agreement that they should be cured or removed 
 remain unperformed. 1 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. 2 And the implication of law, in the absence 
 of any express contract, that a clear title was to be conveyed to 
 the purchaser, may be rebutted by showing that he was aware of 
 the existence of incumbrances on the estate when he purchased. 8 
 No waiver of a right to object to the title will be presumed from 
 the fact that the contract of sale contains no provision that the con- 
 veyance to be executed shall contain covenants for title. 4 
 
 applied to the discharge of incumbrances on the property, but offered the prop- 
 erty for sale without an announcement to that effect, it was held that u jury was 
 warranted in finding that the property was sold free of incumbrances, and that 
 such bidder purchased 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, unless there was a stipulation in the contract 
 that the vendor would not warrant the title, or that the purchaser bought at his 
 peril. Boyer v. Amet, 47 La. Ann. 721; Hall v. Nevill, 3 La. Ann. 326. 
 
 'Ante, "Waiver by Taking Possession," 81. Jackson v. Ligon, supra, 
 was a suit by the vendor to compel specific performance, and the defense was 
 that the title was bad. The vendor replied that the defendant purchased with 
 knowledge of the defective title, and 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 defend- 
 ant on this point. The contract was executory, but the case was treated by two 
 of the judges, BROOKE, J., and TUCKER, P., as if there had been a conveyance 
 with covenants 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 incumbrances comprehends 
 known as well as unknown incumbrances, and that the vendee is not precluded 
 by his previous knowledge from claiming the fulfillment of the covenant. Were 
 it otherwise it would be impossible for him to provide for his security." In 
 Newbold v. Peabody Heights Co., 70 Md. 413; 17 Atl. Rep. 372, it was held that 
 * purchase with notice of an easement in or restriction on the use of the prem- 
 ises would not amount to a waiver if, by the express terms of the contract, the 
 purchaser was entitled to an estate clear of all restrictions and incumbrances. 
 
 9 1 Sugd. Vend. 346. Godson v. Turner, 15 Beav. 46; 3 Mer. 64. 
 
 3 Newark Sav. Inst. v. Jones, 37 N. J. Eq. 449. 
 
 4 Speakman v. Forepaugh, 44 Pa. St. 363, the court saying that the Pennsyl- 
 vania 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
 
 WAIVER OF OBJECTIONS TO TITLE. 197 
 
 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. 1 
 
 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 pur- 
 chaser was to take subject to such incumbrance. Neither does such 
 an incumbrance entitle the purchaser to compensation, nor to an 
 abatement of the purchase money, nor to a conveyance with a cove- 
 nant 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 Judi- 
 cature 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." : 
 
 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 
 
 defect, has no application " to a mere executory contract of sale, a contract which 
 is only preparatory. Articles of agreement for the sale 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 executed, 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 convey. There is, therefore, no presumption 
 that a vendee by articles has agreed to waive any right which the articles, stand- 
 ing alone, would give him." 
 
 'See post, 248. Green v. Finucane, 5 How. (Miss.) 542. Baldridge v. 
 Cook, 27 Tex. 56G. Home v. Rogers, 110 Ga. 362; 35 S. E. 715. Russell v. 
 Handy, 22 Ky. Law R. 033; 59 S. W. 320. 
 
 'Ashburn v. Sewell, L. R., 3 Cli. Div. (1891) 105. The snmo case decides 
 that the mere delineation of a road on a map of the premises M>ld will not 
 raine a presumption that the purchaser was to take snhjeet to an easement 
 in the road enjoyed by third persons, there boinjr not h inn 1o warn the pur- 
 chaser that strangers had a n.rht to use tlie road.
 
 198 MARKETABLE TITLE TO REAL ESTATE. 
 
 on the covenants in the conveyance ; that is, to set up the defense 
 of failure of title by way of recoupment in an action for the pur- 
 chase money. 1 It has been held that the purchaser waives this right 
 by purchasing with notice of the defect or incumbrance. 3 There 
 would seem to be no reasonable objection to such a rule in cases 
 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 pur- 
 chaser should not be allowed to detain the unpaid purchase money, 
 as he is permitted to do in the case of an unexecuted contract ; 8 
 especially when it is remembered that knowledge of the defect or 
 incumbrance does not affect the purchaser's right to recover on the 
 vendor's covenants, 4 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 
 
 'Post, ch. 26. 
 
 1 Greenleaf v. Cook, 2 Wh. (U. 8.) 13. Bradford v. Potts, 9 Pa. St. 37. Find- 
 ley 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 such knowledge the purchaser 
 chose to rely upon the covenants, and to their legal effect he will be remitted. 
 See also Stone v. Buckner, 20 Miss. 73. Beck v. Simmons, 7 Ala, 76. Twohig 
 v. Brown, (Tex.) 19 S. W. Rep. 768. See also post, 271. In case of a defect of 
 title as to part of the premises, the purchaser waives any right of rescission he 
 may have by accepting a conveyance of the residue. Harrison v. Deramus, 33 
 Ala. 463. If a purchaser accepts a warranty deed with full knowledge that an eject- 
 ment suit is pending for a small portion of the land, he will be deemed to have 
 waived the right to insist upon being put in possession of the disputed portion, 
 and to have taken the risk of gaining or losing the same, and, therefore, he can- 
 not detain the purchase money to the extent of the value of the land in dispute. 
 Johnson v. Jarrett, 14 W. Va. 230. It is difficult to reconcile this decision with 
 the rule that the purchaser's knowledge of the existence 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 where he 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. 
 
 3 Post, ch. 24. 
 
 4 Stockton v. Cook, 3 Munf. (Va.) 68; 5 Am. Dec. 504.
 
 WAIV1IK OF OBJECTIONS TO TITLE. 199 
 
 the defective title wherever, with common or ordinary diligence, 
 he might have informed himself of the objection, 1 as where it con- 
 sists of an incumbrance of record 2 or of a fact appearing from the 
 instruments under which the title is derived and which the pur- 
 chaser is presumed to have examined. 3 The better opinion, how- 
 ever, seems to be that the doctrine of constructive notice from the 
 public records has no application to questions which arise between 
 vendor and purchaser. 4 
 
 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 
 r.ight to insist upon the terms of his contract. 5 It is conceived, 
 however, that such an agreement should be limited to those in- 
 cumbrances 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 in- 
 sertion of a vain provision in the contract. 
 
 'Steele v. Kinkle, 3 Ala. (N. S.) 352. 
 
 *Steele v. Kinkle, supra. Wiggins v. McGimpsey, 13 Sin. & M. (Miss.) 532. 
 
 s 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 property. 
 
 Post, eh. 11, 104. Nichol v. Nichol, 4 Baxt. (Tenn.) 145. 
 
 '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 rescind, because 
 it was the intent of the parties that the incumbrance should be removed.
 
 CHAPTER IX. 
 
 TENDER OF PERFORMANCE AND DEMAND FOR DEED. 
 
 GENERAL RULE. 86. 
 
 EXCEPTIONS. 87. 
 
 DUTY OF THE VENDOR TO TENDER PERFORMANCE. 88. 
 
 PLEADINGS. 89. 
 
 86. 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 r. 
 Logging, 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. 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. 
 (Mass.) L. 172; Johnston v. Beard, 7 Sm. & M. (Miss.) 217; Stadifer v. 
 Davis, 13 Sm. & M. (Miss.) 48; Hudson v. Watson, 26 Miss. 357; Hill r. 
 Samuel, 31 Miss. 307. Hudson v. Swift, 20 Johns. (N. Y.) 23; Raudabaugh
 
 TENDER OF PERFORMANCE AND DEMAND FOR DEED. 201 
 
 opportunity to perform his contract before he can be put in de- 
 fault, and an action maintained against him for breach of the con- 
 tract, or to recover back the purchase money, or to compel specific 
 performance of the contract. The covenants being dependent the 
 purchaser must, as a general rule, tender the purchase money, 
 whether he wishes to rescind the contract, or to affirm it by action 
 to recover damages for the breach. 1 Generally these agreements 
 will be construed to be dependent, unless a contrary intention 
 appears. 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 con- 
 tain. 2 Parol evidence of the surrounding circumstances will be ad- 
 mitted 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 were to be mutual and con- 
 current acts. 3 
 
 v. Hart, 61 Ohio St. 73; 55 N. E. 214. Guthrie v. Thompson, 1 Oreg. 353. 
 Baum v. Dubois, 43 Pa. St. 260; Poulson v. Ellis, 60 Pa. St. 134; Irvin v. 
 Bleakley, 67 Pa. St. 24. Shouse v. Doane, 39 Fla. 95; 21 So. 807. A pur- 
 chaser seeking 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, is no 
 defense to an action for the purchase money. Clemens v. Loggins, 1 Ala. 622. 
 A purchaser rescinding the contract for defect of title should tender payment 
 and demand a conveyance, or take some other step showing 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 been specified in which the 
 deed is to be made, there should be 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. Kimr. 
 41 111. 397. Walters v. Miller, 10 Iowa, 427. Where the deed is to be made 
 by executors, no such action can be maintained before the executors hnvc 
 qualified. Hyde v. Heller, 10 Wash. 586; 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 tho 
 duty of making a tender of the purchase money. Kelsey v. Crowther, 102 
 U. S. 404; 16 -Sup. Ct. Rep. 808. 
 
 I Irvin v. Bleakley, 57 Pa. St. 24, 28. 
 
 I 1 Sugd. Vend. (8th Am. ed.) 362 (239) ; Dart's Vend. (Waterman's Notes) 
 449. 
 
 *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
 
 202 MARKETABLE TITLE TO BEAL ESTATE. 
 
 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 unahle to convey. The mere neglect of 
 the parties to perform the contract at the appointed time cannot, 
 without anything more, amount to a rescission. 1 If the vendor be 
 absent from his residence or usual place of abode when the pur- 
 chase 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. 2 It has also been held that the expression "tender 
 of the purchase money," as used in this connection, docs not mean 
 such a tender as is required to stop interest on a debt ; it means 
 a readiness, willingness and ability to pay, accompanied by notice 
 thereof to the other party. 3 So, also, tender of performance by the 
 vendor does not mean in every case the actual production and ten- 
 der of a deed ; if the purchaser himself does not tender perform- 
 ance, 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. 4 If the pur- 
 chaser 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 incumbrances, 
 required by the contract. 5 
 
 87. EXCEPTIONS. The rule Avhich requires a tender of the 
 purchase money and demand of a deed on the part of the purchaser 
 does not apply where the vendor's abstract shows a bad title,' or 
 
 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 completing the contract. 
 " The law," said WESTOX, 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.*' 
 
 1 Townsend v. Tufts, 95 Cal. 257 ; 30 Pac. Kep. 528. 
 
 "Smith v. Smith, 25 Wend. (X. Y.) 404. Here a tender to the son of the 
 vendor at her home, she being absent, was held sufficient. 
 
 * Smith v. Lewis, 26 Conn. 110. Clark v. Weis, 87 111. 438: 29 Am. Rep. 60. 
 Booth v. Saffold, 46 Ga. 278. Luchitti v. Frost, (Cal.) 65 Pac. 969. It seems 
 that an averment of ability and willingness to pay on tender of a good title 
 is sufficient. Smith v. Robertson, 11 Ala. 840. But see Englander v. Rogers, 
 41 Cal. 420, where it was said that the purchaser must produce and offer to 
 pay the purchase money. 
 
 4 Wells v. Day, 124 Mass. 138. Teal v. Langdale, 78 Ind. 339. 
 Huteliinson v. Coonley, 209 111. 437: 70 X. E. 686. 
 
 1 Sugd. Vend. (8th Am. ed.) 367: 2 id. 212; Dart Vend. (Gould's Am. ed.)
 
 TENDER OF PERFORMANCE AND DEMAND FOR DEED. 203 
 
 where the inability of the vendor to make a good title is so appar- 
 ent that a tender and demand would be superflous ;* as where the 
 premises have been recovered from the purchaser by one claiming 
 under a paramount title, 2 or under an incumbrance created by the 
 vendor, 3 or where the vendor has conveyed away the premises to a 
 third person ; 4 or when he has executed a declaration that he holds 
 the premises in trust ; 5 or where the sale was by agent and the prin- 
 cipal has repudiated the contract. 6 If the contract provide that the 
 vendor shall show a good title as a condition precedent to the pay- 
 ment of the purchase money, the purchaser need not tender the 
 purchase money and demand a conveyance before maintaining his 
 action, unless the good title be shown. 7 An apparent contradiction 
 
 504, 510. Seward v. Willcock, 5 East, 198; Knight v. Crockford, 1 Esp. 189; 
 Wilinot v. Wilkinson, 6 B. & C. 506. Johnson v. Collins, 17 Ala. 318; Garnett 
 v. Yoe, 17 Ala. 74; Bedell v. Smith, 37 Ala. 619. Lawrence v. Taylor, 5 Hill 
 (X. Y.) 107; Holmes v. Holmes, 12 Barb. (N. Y.) 137; Foster v. Herkimer 
 Mfg. Co., 12 Barb. (N. Y.) 352; Spaulding v. Fierle, 86 Hun (X. Y.) 17; 
 Glenn v. Rossler, 88 Hun (N. Y.) 74; 34 N. Y. Supp. 608; Higgins v. Engle- 
 ton, 155 N. Y. 466; 50 N. E. 287; Brokaw v. Duffy, 165 N. Y. 391; 59 N. E. 
 196; Washington v. Mining Co. (Tex. Civ. App.), 67 S. W. 459. 
 
 'Magee v. McMillan, 30 Ala. 421; Griggs v. Woodruff, 14 Ala. 9; Smith v. 
 Robertson, 23 Ala. 324. Holmes v. Holmes, 12 Barb. (X. 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. 
 
 '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. 
 
 4 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. 
 Xesbitt v. Miller, 125 Ind. 106 ; 25 X. E. Rep. 148. Smith v. Rogers, 42 Hun 
 (X. Y.), 110. Baum v. Dubois, 43 Pa. St. 260; Irvin v. Bleakley, 67 Pa. St. 
 24. 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, lie having notice 
 of the purchaser's rights. In California it has been held in several cases that 
 a conveyance by the vendor to a thi^d person before the day fixed for per- 
 formance 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 be 
 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. 
 
 5 Seiberling v. Lewis, 93 111. App. 549. 
 
 '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. 
 '1 Sudg. Vend. (8th Am. ed.) 363 (239).
 
 204 MARKETABLE TITLE TO KEAL ESTATE. 
 
 is involved in the two propositions that the purchaser need not ten- 
 der the purchase money and demand a deed when the vendor's ab- 
 stract shows a bad title, and that the vendor is entitled to a reason- 
 able 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. 1 If the purchaser 
 seeks to rescind the contract, or to recover damages against the ven- 
 dor for non-performance, it seems to be the better opinion that the* 
 mere existence of an incumbrance upon the property will not ex- 
 cuse him from performing or tendering performance on his part, 
 if the incumbrance can be discharged out of the purchase money. 
 The vendor should be given an opportunity to remove the incum- 
 brance. 2 But there are cases in which the contrary view has been 
 taken. 3 If, however, in a case in which the estate is incumbered, 
 the purchaser seeks not a rescission, but specific performance of 
 the contract, 4 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. 5 i^To duty devolves upon the 
 
 1 Read '. Walker, 18 Ala. 323, where it was said that if the vendor has no 
 title, and cannot procure or cause 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 to 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 be willing to execute it. 
 
 Z 2 Sugd. Vend. (8th Am. ed.) 25 (425), where it is said that an incum- 
 brance is no objection to the title if the incumbrancer can be compelled to 
 join in the conveyance. 
 
 Morange v. Morris, 34 Barb. (N. Y.) 311; affd., 32 How. Pr. (N. Y.) 178, 
 where it was said to be the duty of the vendor to remove incumbrances before 
 the time fixed for completing the contract. The purchaser was permitted to 
 recover his deposit and the costs of examining the title. Hewison v. Hoffman, 
 4 N. Y. Supp. 621. It has since been held in this State that the existence of 
 an incumbrance does not relieve the purchaser from the obligation to tender 
 the purchase money. Ziehen v. Smith, 148 N. Y. 558 ; 42 N. E. 1080 ; Higgins 
 v. Eagleton, 155 N. Y. 466; 50 N. E. 287; Campbell v. Pruyne, 39 N. Y. Supp. 
 558; 6 App. Div. 554; Keitel v. Zimmerman, 43 N. Y. Supp. 676; 19 Misc. 
 581; Marshall v. Weninger, 46 N. Y. Supp. 670; 20 Misc. 527; Minor v. 
 Hilton, 44 N. Y. Supp. 155; 15 App. Div. 55; Daly v. Bruen, 84 N. Y. Supp. 
 971; 88 App. Div. 263. 
 
 4 Kerr v. Purdy, 50 Barb. (N. Y.) 24. 
 
 Karker v. Haverley, 50 Barb. (N. Y.) 79. In this case the purchaser ten- 
 dered the cash payment, but refused to execute a bond and purchase-money 
 mortgage for the deferred payments xipon the ground that the property was 
 incumbered. The vendor then brought an action to recover $600 liquidated 
 damages. Judgment was rendered for the defendant.
 
 TENDER OF PERFORMANCE AND DEMAND FOR DEED. 205 
 
 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, 1 e. g., where the vendor has 
 expressly notified the purchaser that he will not execute a con- 
 veyance, 2 or receive the purchase money. 3 
 
 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. 4 
 
 88. DUTY OP THE VENDOR 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 
 
 'Mathison v. Wilson, 87 111. 51. Sims v. Boaz, 19 Miss. 318. Drew v. 
 Pedlar, 87 Cal. 443; 25 Pac. Rep. 749. Buchanan v. Lonnan, 3 Gill (Md.),51. 
 Thus, where the purchaser had paid part of the purchase money, and a con- 
 veyance 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. 
 
 2 Traver v. Halstead, 23 Wend. (N. Y.) 66; Fbot v. West, 1 Den. (N. Y.) 
 544. Remy v. Olds, 88 Cal. 537. Comstock v. Lager, 78 Mo. App. 390. It has 
 been said that if the vendor denies the obligation of the contract, or places 
 himself 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. 
 
 Stone v. Sprague, 20 Barb. (N. Y.) 509. 
 
 4 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 cases, and under all circumstances, dispense with a tender of 
 payment and a demand of a conveyance by 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 due before a deed is 
 to be given by the terms of the contract. Under some circumstances the court 
 will not hold a contract void by reason of the inability of the seller to make a 
 perfect title, but will put the purchaser to a tender of payment and a demand 
 of the deed, to the end that the seller may make his title good." Citing Har- 
 rington v. Higgins, 17 W. R. 376; Green v. Green, 9 Cow. (N. Y.) 46; Greenby 
 v. Cheevers, 9 Johns. (N. Y.) 126.
 
 206 MARKETABLE TITLE TO KEAL ESTATE. 
 
 purchaser may detain the purchase money until such a conveyance 
 is 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 performance on 
 his part before he can put the purchaser in default. 1 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. 2 
 The rule that the vendor must tender performance in order to put 
 the purchaser in default does not apply if the latter has given no- 
 tice 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 obligation to remove or offer to re- 
 move the objection when the purchaser declares his own inability 
 
 1 1 Sugd. Vend. (8th Am. ed.) 364 (240) ; Chitty Cont. (10th Am. ed.j 330. 
 Swan v. Drury, 22 Pick. (Mass.) 485. Critchett v. Cooper, 65 N. II. 167; 18 
 Atl. Rep. 778. McWilliams v. Long, 32 Barb. (N T . Y.) 194; 19 How. Pr. 547. 
 Guthrie v. Thompson, 1 Oregon, 353. Pershing v. Canfield, 70 Mo. 140. 
 Pursley v. Good, 94 Mo. App. 382. Overly v. Tipton, 68 Ind. 410; Soule v. 
 Holdridge, 63 Ind. 213; Melton v. Coffelt, 59 Ind. 310; Parker v. McAllister, 
 14 Ind. 12. 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 purchase 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. Doc. 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. 
 
 'Kirkland v. Little, 41 Tex. 456.
 
 TENDER OF PERFORMANCE AND DEMAND FOR DEED. 207 
 
 to complete the contract. 1 Nor where the purchaser declares that 
 he will not accept a deed. 2 If the purchase money is payable in in- 
 stallments, 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, 3 and the weight of authority seems to establish 
 the rule that the purchaser cannot decline to pay one of the inter- 
 mediate installments upon the ground that the vendor has no title, 
 for non consiat, but that he may acquire or perfect the title before 
 the last installment becomes due. 4 It may be doubted whether this 
 rule would apply in a case in which it is clear that the vendor can- 
 not get in an outstanding title because vested in a person incompe- 
 tent to convey, such as an infant or lunatic ; or in a case in which 
 the vendor is utterly insolvent. It has been held that the rule that 
 the vendor must tender a conveyance before he can enforce the pay- 
 ment of the purchase money, does not apply to a proceeding in 
 equity to collect the purchase money. The reason stated for thi.-i 
 exception is that the rights of the purchaser may be protected upon 
 final decree in the cause. 6 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 as- 
 signees of the purchaser. 6 
 
 Johnston v. Johnston, 43 Minn. 5; 44 N. W. Rep. 668. 
 
 'Sweitzer v. Hummel, 3 Serg. & 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. Rowersock v. Beers, 82 111. 396. 
 
 'Terry v. George, 37 Miss. 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 is unreasonable to presume that the purchaser intended to pay the whole 
 consideration without 'laving the equivalent in a title to the land purchased. 
 The same reason applies to the last installment." McLeod v. Snyder, (Mo.) 
 19 S. W. Rep. 494. If suit be delayed until all the installments become due, 
 then the covenants to pay and to make title become dependent. Johnson v. 
 Wygant, 11 Wend. (N. Y.) 48. 
 
 4 Post, eh. 24, 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. (N. Y.) 376. Lockwood 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. 
 
 "Rutherford v. Haven, 11 Iowa, 587; Winton v. Sherman, 20 Iowa, 205. 
 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. 
 
 Heidenberg v. Jones, 73 111. 149.
 
 208 MARKETABLE TITLE TO REAL ESTATE. 
 
 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. 1 This may be true where the 
 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 
 be 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. 2 
 
 In the American States, 3 with but few exceptions, 4 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. 5 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. 6 Of course, the parties may contract that 
 the purchaser shall prepare and tender the deed for execution. 7 
 
 1 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 repre- 
 sentative capacity. 
 
 1 Ante, 18; post, 315. 
 
 3 Taylor v. Longworth, 14 Pet. (U. S.) 175. Stone v. Lord, 80 N. Y. 60. 
 Seeley v. Howard, 13 Wis. 336; Dye v. Montague, 10 Wis. 15. Hill v. Hobart, 
 16 Me. 164. Especially if the contract provides that the vendor shall "make 
 and execute a deed." Walling v. Kinnaird, 10 Tex. 508; 60 Am. Dec. 216. 
 Fairfax v. Lewis, 2 Rand. (Va.) 20. Standifer v. Davis, 13 Sm. & M.. (Miss.) 
 48. Sons of Temp. v. Brown, 9 Minn. 157. Baston v. Clifford, 68 111. 67 ; 18 
 Am. Rep. 547. The purchaser is not obliged to prepare and tender a deed, 
 unless such an obligation can be fairly inferred from the contract. Buck- 
 master v. Grundy, 1 Scam. (111.) 310; Headley v. Shaw, 39 111. 354. It is 
 only necessary that the purchaser shall allege that he demanded a deed; he 
 need not allege that he prepared it and presented it for execution. Standifer 
 v. Davis, 13 Sm. & M. (Miss.) 548. 
 
 4 Byers v. Aiken, 5 Pike (Ark.), 419, 497. But see Arledge v. Brooks, 22 
 Ark. 427. In Alabama, the English rule that the purchaser must prepare the 
 conveyance and tender it to the vendor to be executed, has been held to pre- 
 vail. Wade v. Killough, 5 Stew. & P. (Ala.) 450; Chapman v. Lee, 55 Ala. 616. 
 
 5 1 Sugd. Vend. (8th Am. ed.) 360 (241). 
 
 8 Fuller v. Hubbard, 6 Cow. (N. Y.) 13; 16 Am. Dec. 423; Hackett v. Huson, 
 3 Wend. (N. Y.) 250. Dye v. Montague, 10 Wis. 15. I 
 
 7 Tinney v. Ashley, 14 Pick. (Mass.) 546; 26 Am. Dec. 620. As where the
 
 TENDER OF PERFORMANCE AND DEMAND FOR DEED. 209 
 
 Tt 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. 1 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 ; 2 the purchaser being at liberty, however, to obvi- 
 ate the necessity of a second demand, by himself preparing and 
 tendering the deed. 3 But the better opinion seems to be that it is 
 the duty of the vendor to prepare the deed and have it in readiness 
 for delivery at the time appointed for the completion of the con- 
 tract, and that a demand for the deed at that time is sufficient to 
 put him in default. 4 
 
 The tender must be made at the residence of the vendee, or 
 other place specially agreed upon. A tender made to the vendee's 
 attorney is insufficient. 5 
 
 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, in 
 his pleadings, aver an actual performance or "tender of perform- 
 ance on his own part, 6 or aver a present willingness and ability 
 to perform, 7 or set out facts which excuse his own non-performance, 
 
 contract provides that the vendor shall execute such conveyances as the pur- 
 chaser shall devise. Sweitzer v. Hummel, 3 Serg. & R. (Pa.) 228. 
 
 'Mhoon v. Wilkinson, 47 Miss. 633. 
 
 2 Fuller v. Hubbard, 6 Cow. (N. Y.) 13; 16 Am. Dec. 423; Fuller v. Wil- 
 liams, 7 Cow. (N. Y.) 53; 17 Am. Dec. 498; Hackett v. Huson, 3 Wend. 
 (N. Y.) 250; Connelly v. Pierce, 7 Wend. (N. Y.) 129; Lutweller v. Linnell, 
 12 Barb. (N. Y.) 512; Pearsoll v. Frazer, 14 Barb. (N. Y.) 564. Johnston 
 v. Beard, 7 Sm. & M. (Miss.) 214; Hudson v. Watson, 26 Miss. 357. 
 
 Connolly v. Pierce, 7 Wend. (N. Y.) 129, 132; Wells v. Smith, 2 Edw. (N. Y.) 
 78; Foote v. West, 1 Den. (N. Y.) 544; Camp v. Morse, 5 Den. (N. Y.) 164. 
 
 4 Carpenter v. Brown, 6 Barb. (N. Y.) 147. 
 
 'Darrow v. Cornell, 51 N. Y. Supp. 828. 
 
 Clark v. Locke, 11 Hump. (Tenn.) 300. Grace v. Regal, 11 S. & R. (Pa.) 
 351. 
 
 7 Smith v. Robertson, 11 Ala. 840. 
 
 14
 
 210 MARKETABLE TITLE TO REAL ESTATE. 
 
 such an absolute want of title in the vendor, or that the vendor 
 had notified him that he would not or could not complete the con- 
 tract. 1 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. 2 
 
 1 Sons of Temp. v. Brown, 9 Minn. 157. 
 
 2 Johnston v. Beard, 15 Miss. 214. In Goodwin v. Morey, 111 Ind. 69, it 
 was held that the vendor, seeking to enforce the contract, must aver the 
 tender of a sufficient warranty deed, and must keep the tender good by bring- 
 ing the deed into court, or by an averment of readiness and willingness to 
 xecute a deed that will vest a perfect title in the purchaser.
 
 CHAPTER X. 
 
 MEASURE OF DAMAGES FOR 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. $ 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. 
 
 90. GENERAL OBSERVATIONS. Damages for breach of a con- 
 tract for the sale of lands by the vendor are either nominal ; that 
 is, mere reimbursement for such part of the purchase money as has 
 been paid, with interest, costs, expenses of examining the title, etc., 1 
 or substantial ; that is, 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. 2 Profits which 
 
 1 It is hoped that the application of the terra " nominal damages " to a recovery 
 of the purchase money, with interest, etc., will lead to no confusion of ideas. 
 Of course, if the purchaser gets back only his purchase money, interest and 
 expenses, his recovery of damages is merely nominal. The following language of 
 EARL, J., in Mack v. Patchin, 40 N. Y. 171, clarifies the point: " Where the con- 
 tract is executory, no deed having been given, in cases where no part of the pur- 
 chase money has been paid, the vendee can recover only nominal damages; and 
 in cases where the purchase money has been paid, ho can recover the purchase 
 money, interest and nominal damages." 
 
 * The purchaser's measure of damages for the loss of his bargain will generally 
 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. Pitch, L. R, 3 Q. B. 314. Hop-
 
 212 MARKETABLE TITLE TO REAL ESTATE. 
 
 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. 1 Nor can the purchaser include in his esti- 
 mate of damages profits anticipated from the prosecution of his 
 business on the premises which should have been conveyed to him. 
 Such damages are too remote, and are, besides, speculative and 
 incapable of ascertainment. 2 
 
 The question whether the purchaser is entitled to nominal or sub- 
 stantial 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 prospect 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 power to cure the defect or remove the incumbrance, 
 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, per- 
 versely and wrongfully refuses to convey, 3 or puts it out of hia 
 power to perform the contract by conveying to a stranger without 
 
 kins v. Lee, 6 Wh. (U. 8.) 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; Pringle 
 v. Spaulding, 53 Barb. (N. Y.) 17. Bitner v. Brough, 11 Pa. St. 127; Meason v. 
 Kaine, 67 Pa. St. 132. 
 
 1 Sanderlin v. Willis, 94 Ga. 171; 21 S. E. Rep. 291. 
 
 * Greene v. Williams, 45 111. 206; Hiner v. Richter, 51 111. 299. These were 
 both cases in which the vendor refused, without sufficient cause, to perform hia 
 contract. A fortiori would the rule apply where he was prevented from per- 
 forming the contract by an unsuspected defect of title. 
 
 3 Sedg. Dam. (8th ed.) 1006. Baldwin v. Munn, 2 Wend. (N. Y.) 399; 20 
 Am. Dec. 627; Brinckerhoff v. Phelps, 24 Barb. (N. Y.) 100; S. C., 43 Barb. (N. 
 Y.) 469. Rowland v. Dowe, 2 Murph. (N. C.) 347; Lee v. Russell, 8 Ired. Eq. 
 526. But if the contract were not in writing, the purchaser can recover only what 
 he has disbursed. He can have nothing under the contract, that being void. 
 Welch v. Lawson, 32 Miss. 170. Rineer v. Collins, 156 Pa. St. 342.
 
 MEASURE OF DAMAGES FOR INABILITY TO CONVEY A GOOD TITLE. 213 
 
 notice of the purchaser's rights. 1 Were the rule otherwise, the 
 vendor might in every case in which the land had enhanced in value 
 before the time fixed for making the conveyance sell to a third per- 
 son, return the purchase price to the first purchaser, and put in his 
 own pockets the difference between the two values. But if the 
 vendor abandon the contract and the purchaser acquiesces in the 
 vendor's attempt to rescind, instead of demanding a deed and stand- 
 ing upon the contract, he can recover only the purchase money and 
 interest. 2 
 
 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. 3 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. 4 The leading case upon this point in England is Flureau v. 
 
 1 3 Sedg. Dam. 183. Dustin v. Newcomer, 8 Ohio, 49. Wilson v. Spenser, 11 
 Leigh (Va.), 261. Gerault v. Anderson, 2 Bibb (Ky.), 543. Sweem v. Steele, 5 
 Iowa, 352. Case v. Wolcott, 33 Ind. 5. Phillips v. Herndon, 78 Tex. 378. 
 
 9 Fowler v. Johnson, 19 Ind. 207. 
 
 "CocKBURN, L. C. J., in Engel v. Fitch, L. R., 4 Q. B. 659. 3 Sedg. Dam. 
 180, 181. 
 
 4 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 bonajide 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 conse- 
 quence of which the sub- purchasers refused to complete the contract. The pur- 
 chaser claimed damages for the profits which he would have realized from the
 
 214 MARKETABLE TITLE TO REAL ESTATE. 
 
 Thornhill, 1 Sir WILLIAM BLACKSTONE being one of the judges who 
 delivered opinions in that case. Some dissatisfaction with this 
 decision has been expressed in several English cases, 2 but it is now 
 regarded there as settled law. 3 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, 4 
 
 resale, bat 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. 
 
 1 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 he 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 title proves bad, and the vendor 
 is (without fraud) incapable of making a good one, I do not think that the pur- 
 chaser 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. f L. R, 4 Q. B. 659. 
 
 Sikes v. Wild, 1 B. & S. 587; Bain v. Fothergill, L. R., 7 H. L. 158; Rowe v. 
 School Board, 36 Ch. D. 619. 
 
 4 Sutherland Dam. 217. Letcher v. Woodson, 1 Brock. (U. S.) 212, per MAR- 
 SHALL, C. J. Blackwell v. Lawrence County, 2 Bl. (Ind.) 143; Sheets v. 
 Andrews, 2 Bl. (Ind.) 143; Adamson v. Rose, 30 Ind. 380; Junk v. Barnard, W 
 Ind. 137; Puterbaugh v. Puterbaugh, 7 Ind. App. 280, obiter; S. C., 34 N. E. 
 Rep. 611. Sweem 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. Bat- 
 son, 6 Kans. 412, semble. 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. Venable, 7 Dana (Ky.) 371; Combs v. Tarlton, 2 
 Dana (Ky.), 464; Goff v. Hawkes, 5 J. J. Marsh. (Ky.) 341. Baltimore P. 
 B. & L. Soc. v. Smith, 54 Md. 187 ; 39 Am. Rep. 374, distinguishing the early 
 cases of Connell v. McLean, 6 Harr. t J. 297, and Marshall v. Haney, 9 Gill, 
 251 ; 59 Am. Dec. 92. The question was left undecided in Rawlings v. Adams, 
 7 Md. 26, 51. Hammond v. Hannin, 21 Mich. 374; 4 Am. Rep. 490, per COOLEY, 
 J. Dunnica v. Sharp, 7 Mo. 71. But, see Missouri cases cited contra, post, 
 next note. Drake v. Barker, 34 X. J. L. 358. Baldwin v. Munn, 2 Wend. (N. 
 Y.) 299 ; 20 Am. Dec. 627, leading case ; Peters v. McKeon, 4 Den. (N. Y.) 546 ; 
 Fletcher v. Button, 6 Barb. (N. Y.) 646: Conger v. Weaver, 20 N. Y. 140; Cock- 
 roft v. N. Y. 4 H. R. R. Co., 69 X. Y. 204; EABL, J., in Mack v. Patchin. 40 N. 
 Y. 171, obiter; 1 Am. Rep. 506. McLowry, v. Croghan. 1 Grant (Pa.) 307: Bit- 
 ner v. Brough. 1 1 Pa. St. 139 ; Dumars v. Miller, 34 Pa. St. 319 ; Hertzog v. Hert-
 
 MEASUBE OF DAMAGES FOR INABILITY TO CONVEY TITLE. 215 
 
 but . in many of the States the opposite rule prevails, 1 and in 
 others it is said that the English rule must be strictly limited to 
 cases in which the vendor sold in entire ignorance of his inability to 
 
 zog, 34 Pa. St. 418, overruling Jack v. McKie, 9 Barr (Pa.), 235; Graham v. 
 Graham, 34 Pa. St. 475; McNair v. Compton, 35 Pa. St. 23; Ewing v. Thomp- 
 son, 66 Pa. St. 382; Burk v. Serrill, 80 Pa. St. 413; 21 Am. Rep. 105; Tyson v. 
 Eynck, 141 Pa. St. 296; 21 Atl. Rep. 635. See, also, Rineer v. Collins, 156 Pa. St. 
 342. Button v. Page, 4 Tex. 142; Wheeler v. Styles, 28 Tex. 240; Hall v. York, 
 22 Tex. 643. Jackson v. Turner, 5 Leigh (Va.), 119, obiter; Wilson v. Spencer, 
 11 Leigh (Va), 261; Thompson v. Guthrie, 9 Leigh (Va.), 101; 33 Am. Dec. 
 225; Click v. Green, 77 Va. 827, obiter; Abernathy v. Phillips, 82 Va. 769; 1 8. 
 E. Rep. 113. Saulters v. Victory, 35 Vt. 351. In this case, however, it was said 
 that upon a breach of the covenant of warranty the covenantee would be enti- 
 tled to damages for the value of the land at the time of the breach. Hall v. 
 Delaplaine, 5 Wis. 206; 68 Am. Dec. 57; Combs v. Scott, 76 Wjs. 662, 670, obiter. 
 In Cox v. Henry, 32 Pa. St. 18, the purchaser took a bond conditioned to 
 indemnify himself for all costs, charges and damages which he might sustain if 
 the land should be recovered from him under a paramount title, and afterwards 
 took a conveyance of the land with warranty. It was held that the bond was 
 not merged in the conveyance, and that under the former the purchaser was 
 entitled to recover, in addition to the purchase money and interest, court fees, 
 reasonable fees of counsel, and his own expenses and loss of time in defending a 
 a suit by an adverse claimant to recover the land. 
 
 1 Mr. Sedgwick takes this view. 3 Sedg. Dam. 196. Hopkins v. Lee, 6 Wh. 
 (U. S.) 109, semble. Whitesides v. Jennings, 19 Ala. 784, dictum. Kempner v. 
 Cohn, 47 Ark. 519; 58 Am. Rep. 775. Wells v. Abernathy, 5 Conn. 222. Bryant 
 v. Hambrick, 9 Ga. 133; Newsom v. Harris, Dudley (Ga.), 180; Gibson v. Car- 
 reker, 82 Ga. 46; Ga. Code, 2949; Irvin v. Askew, 74 Ga. 581. Buckmaster 
 v. Grundy, 1 Scam. (111.) 310; McKee v. Brandon, 2 Scam. (111.) 339; Gale v. 
 Dean, 20 111. 320; Plummer v. Rigdon, 78 111. 222; 20 Am. Rep. 261. Lewis v. 
 Lee, 15 Ind. 499. But see the Indiana cases, supra, following Flureau v. 
 Thornhill. Sutton v. Page, 13 La. Ann. 143, where, however, it was held that 
 the purchaser could recover only for such increase in value as the parties may 
 have had in contemplation at the time of the sale, and not for any enormous 
 increase produced by unforeseen or fortuitous circumstances. Dorincourt v. 
 La Croix, 29 La Ann. 286. Robinson v. Heard, 15 Me. 296; Hill v. Hobart, 1 
 Me. 164; Warren v. Wheeler, 21 Me. 484; Lawrence v. Chase, 54 Me. 196; Russell 
 v. Copeland, 30 Me. 332; Doherty v. Dolan, 65 Me. 87; 20 Am. Rep. 677. Trask 
 v. Vinson, 20 Pick. (Mass.) 110, obiter. The rule could scarcely be otherwise in 
 Massachusetts, for in that State it is settled that the measure of damages for a 
 breach of the covenant of warranty is the value of the land at the time of the 
 breach. So, also, in Maine. Post, 165. Loomis v. Wadhams, 8 Gray (Mass.), 
 557; Brigham v. Evans, 113 Mass. 538. Skaaraas v. Finnegan, 31 Minn. 48, 
 obiter, the action being against one who had falsely assumed authority to sell. 
 Kirkpatrick v. Downing, 58 Mo. 32; 17 Am. Rep. 678; Hartzell v. Crumb. 90
 
 216 MARKETABLE TITLE TO EEAL ESTATE. 
 
 perform the contract. 1 The reasons for the rule established in 
 Flureau v. Thornhill, and the cases which follow that decision, 
 are principally and briefly these: 
 
 1. A perfect title depends for its existence upon such an infinite 
 variety of circumstances, and the law of real property is, in many 
 respects, so artificial and compiex, that few vendors can be certain 
 that there is no latent and unsuspected defect in their titles, hence a 
 kind of implied contract arises that the vendor shall only refund the 
 purchase money, interest and expenses, if a defect in the title should 
 be discovered, and the vendor acting in good faith be unable to 
 complete the contract. 2 
 
 2. It frequently happens that, from unexpected causes, the value 
 of the lands sold greatly increases before the time fixed for the con- 
 veyance, sometimes doubling and sometimes quadrupling the pur- 
 chase price. In such a case it has been considered inequitable to 
 visit upon an innocent vendor the ruinous consequences of the 
 increase. No prudent man would venture to sell his property, if 
 by law he might be bankrupted by his inability, from unforeseen 
 causes, to make title under such circumstances. 3 
 
 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 
 
 Mo. 629. Nichols v. Freeman, 11 Ired. (N. C.) 99. Barbour v. Nichols, 3 R. I. 
 187. Cocke v. Taylor, 2 Temi. 50; Perkins v. Hadley. 4 Hayw. (Tenn.) 143r 
 Crittenden v. Posey, 1 Head (Tenn.), 320, obiter; Hopkins v. Yowell, 5 Yerg. 
 (Tenn.) 305; Clarke v. Locke, 11 Humph. (Tenn.) 302; Shaw v. Wilkins, 8 
 Humph. (Tenn.) 647; 49 Am. Dec. 692. An early Tennessee case held that the 
 purchaser was not entitled to damages for the loss of his bargain. Wilson v. 
 Robertson, 1 Tenn. 464. Dunghee v. Geoghegan, (Utah) 25 Pac. Rep. 731. 
 
 1 Pumpelly v. Phelps,.40 N. Y. 59; 100 Am. Dec. 468. 
 
 8 Sir WILLIAM BLACKSTONE in Flureau v. Thornhill, 2 W. Bl. 1078; COCKBURN, 
 C. J., in Sikes v. Wild, 1 B. & S. 596. " When a contract for the sale of land* 
 is made, each party cannot but know that the title may prove defective, and 
 must be taken to proceed upon that knowledge." LITTLEDALE, J., in Walker Y. 
 Moore, 10 Barn. & Ores. 422; S. C. f 21 E. C. L. 181. 
 
 * SUTHERLAND, J., in Baldwin v. Munn, 2 Wend. (N. Y.) 399; 20 Am. Dec. 
 627, adopting the reasoning of KENT, Ch., in Staats v. Ten Eyck, 3 Caines (N. 
 Y.), 115; 2 Am. Dec. 254, where the contract had been executed by a convey- 
 ance, with covenants for title.
 
 MEASURE OF DAMAGES FOE INABILITY TO CONVEY TITLE. 217 
 
 the premises at the time of the eviction of the covenantee. 1 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. 2 The fact that the land has 
 
 1 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. Black- 
 well 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, 888; 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 compen- 
 sation in case the vendor, when he discovers the defect in his title, has the man- 
 liness 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 con- 
 vey." In Connell v. McLean, 6 Harr. & J. (Md.) 297, 301, 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 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. 1078, 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 the time of 
 the breach, damages for the breach of an executory contract from want of title 
 are fixed at the consideration money and interest (Saulters 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 held
 
 MARKETABLE TITLE TO BEAL 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. 1 The case of Hopkins v. 
 Lee 2 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 his bona, fides or innocence of intent at 
 the time the contract was made, or that of his ability or inability to 
 perform the contract. 8 
 
 The principal objections to the rule that the purchaser can have 
 no damages for the loss of his bargain where the vendor, acting in 
 good faith, is unable to make title, are (1) that it is a departure 
 from the general rule that the seller of property who neglects, 
 refuses, or is unable to perform his contract, must place the pur- 
 chaser in as good a condition as if the contract had been performed, 
 and that the motives or purposes of the parties with respect to the 
 performance of the contract are irrelevant to the question of darn- 
 entitled to damages for the loss of his bargain on failure of the title where the 
 contract is executory. Council v. McLean, 6 Harr. & J. (Md.) 297. In either 
 case, a distinction is drawn between executed and executory contracts as respects 
 the rule of damages, but with directly opposite results. Apparently, the only 
 practical difference between the two species of contract with respect to the rule 
 of damages, is 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 would perhaps be unwilling to assume the risk of a great increase in 
 value during a period of twenty or thirty years or more. Pumpelly v. Phelps, 
 40 N. Y. 59, 65; 100 Am. Dec. 468. 
 
 1 Shryer v. Morgan, 77 Ind. 479. 
 
 ! 6Wh. (U. S.)109. 
 
 3 See the remarks of the court in Drake v. Baker, 34 N. J. L. 362, and Baldwin 
 v. Munn, 2 Wend. (N. Y.) 399, 407; 20 Am. Dec. 627.
 
 MEASURE OF DAMAGES FOR INABILITY TO CONVEY TITLE. 219 
 
 ages, and (2) that such a rule tempts the seller to violate his con- 
 tract and obtain, himself, the benefit of the increase in value. With 
 respect to the first objection, it must suffice to say that contracts for 
 the sale of real estate would seem distinguishable from contracts 
 for the sale of goods and merchandise or other personalty, in that 
 inability to perform the contract in respect to these latter seldom 
 arises from want of title in the vendor, but usually grows out of his 
 want of skill, diligence or means of performance, or out of some other 
 default on his part, so that no ground is presented for the implication 
 of a contract that only the purchase price shall be returned if the title 
 fails. The objection that the rule denying the purchaser damages 
 for the loss of his bargain tempts the vendor to violate his contract 
 and avail himself of the increase in value of the premises, would 
 seem to be without force for two reasons : First, because the pur- 
 chaser is not restricted to nominal damages where the vendor refuses 
 to perform, or disables himself from performing the contract, but 
 may recover damages for the full value of the property ; l and, 
 second, because, should the vendor ferret out a defect in his title as 
 an excuse for non-performance, the purchaser may always elect to 
 take the title, such as it is, and compel specific performance by the 
 vendor. 2 Against the rule it has been further urged that it is 
 inequitable, in that it holds the purchaser to a bad bargain arid 
 deprives him of the benefits of a good one. But this is true only to 
 a limited extent, for the vendor, having a good title, cannot escape 
 his obligation to perform the contract, no matter how greatly the 
 property may have increased in value. The purchaser may go into 
 a court of equity and compel the vendor to convey. 
 
 92. Barter contracts. Upon the breach of a contract to 
 exchange lands of equal value, the measure of damages would be, 
 where the vendor acts in good faith, in those jurisdictions in which 
 the rule in Flureau v. Thornhill is followed, the value of the land 
 to be given in exchange at the time the contract was made. 8 But in 
 
 'Ante, 90. 
 
 1 Post, 197. 
 
 * 3 Sedg. Dam. (8th ed.) 1020; 2 Sutherland Dam. 228. Obviously there U 
 no difference in principle between a case in which a vendor receives land and 
 one in which he receives money in consideration of the conveyance which he is 
 to make. In Combs v. Scott, 76 Wis. 670, there is, however, a dictum that in 
 cases of barter contracts, the value of the land (which should have been conveyed)
 
 220 MARKETABLE TITLE TO REAL ESTATE. 
 
 those jurisdictions in which the purchaser from an innocent vendor 
 is allowed damages for the loss of his bargain, 1 or wherever the 
 vendor has acted in bad faith, 2 the purchaser will be entitled to dam- 
 ages for the present value of the land which should have been con- 
 veyed to him in exchange. The fact that the consideration passing 
 from the purchaser consists of the conveyance of land in exchange, 
 or the performance of services, or the delivery of a commodity, 
 instead of the payment of money, does not, of course, affect the 
 rule of damages for breach of contract in either case. If the parties 
 agree to exchange one tract of land f qr another, and the tract which 
 the plaintiff agreed to convey appears to be less valuabls than that 
 which he was to receive, the measure of his damages will be the dif- 
 ference in value between the two tracts, with the expenses of exam- 
 ining the title. 3 It has been held that if the consideration of a con- 
 tract 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 can- 
 not, upon full performance on his part thereafter, recover the value 
 of the land as damages. He can recover only whatever actual dam- 
 ages he has sustained. 4 
 
 at the time of the breach is from necessity the measure of damages. Cit- 
 ing Brigham v. Evans, 113 Mass. 538, a case which, it seems, decides no more 
 than that the plaintiff shall not lose the benefit of his bargain because the prop- 
 erty 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. 
 
 1 Wells v. Abernethy, 5 Conn. 222. 
 
 9 Devin v. Himer, 29 Iowa, 297. Bierer v. Fretz, 32 Kans. 329. Greenwood v. 
 Hoyt, 41 Minn. 381. 
 
 'Fagen v. Davison, 2 Duer (N. Y.), 153. It is to be observed that in this case 
 the difference in value between the two pieces of property existed at the time of 
 the contract. No question was raised as to any increase in value at the time of 
 the breach of the contract. 
 
 4 Rohr v. Kindt, 3 W. & S. (Pa.) 563; 39 Am. Dec. 53. Here the consideration 
 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.
 
 MEASURE OP DAMAGES FOB INABILITY TO CONVEY TITLE. 221 
 
 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 ae has 
 been paid, the expenses incurred by him in examining the title. 1 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. 2 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 exam- 
 ining the title, if the parties believed that the vendor would acquire 
 title before the time stipulated for the conveyance. 3 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. 4 Nor can he recover the costs of other liti- 
 gation between himself and the vendor growing out of the contract, 
 such as an unsuccessful suit by the latter for specific performance. 5 
 By analogy to the rule which prevails in an action for breach of a 
 
 '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; Kirkland 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. 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 accept- 
 ing a conveyance, are properly made available by way of protection, and 
 unless an understanding in some manner appear to the contrary, the examin- 
 ation 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 such. 
 
 'Day v. Nason, 100 N. Y. 166; 2 N. E. Rep. 382. 
 
 Northridge v. Moore, 118 N. Y. 420; 23 N. E. Rep. 570. 
 
 * Walker v. Moore, 10 B. & C. 416. 
 
 Hodges v. Litchfield, 1 Bing. N. C. 492.
 
 222 MARKETABLE TITLE TO REAL ESTATE. 
 
 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. 1 
 
 94. 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, 2 on money kept idle by him with which 
 to pay the purchase money, and also on money borrowed by him for 
 that purpose. 3 It seems, however, that the purchaser cannot recover 
 interest if there is no liability for rents and profits on his part to the 
 true owner. 4 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 protected him from loss if the 
 value had depreciated. 5 In Tennessee, a State in which the pur- 
 chaser is allowed damages for the loss of his bargain, without regard 
 to good faith on the part of the vendor, it has been held that interest, 
 as such, cannot be allowed on the damages awarded from the time 
 of the breach, but that the jury might, in their discretion, under all 
 the circumstances of the case, allow interest by way of enhancing 
 the damages, and that it was no error in the court to direct the jury 
 to compute interest from the time of the breach. 6 
 
 95. Rents and profits. It seems that rents and profits enjoyed 
 by a purchaser in possession cannot be set off against damages in an 
 action by him against the vendor for failing to make a title. If the 
 vendor neither owned the premises nor had a right to occupy them, 
 nor to suffer the purchaser to occupy them, he cannot have the 
 
 1 Post, 173, 175. A bond to indemnify against all claims and incumbrances, 
 etc., and to " pay all costs, charges, or expenses necessary to defend the premi- 
 ses " against adverse claims, embraces fees paid counsel, and other necessary 
 expenses incurred in defending ejectment for the premises. Robinson v. Brake- 
 well, 25 Pa. St. 424. 
 
 2 1 Sugd. Vend. (8th Am. ed.) 360; 2 Sugd. Vend. (8th Am. ed.) 329: 2 
 Sutherland Dam. 221. Gates v. Parmly, 93 Wis. 294; 66 N. W. 253. See, 
 generally, the cases cited throughout this chapter. 
 
 3 1 Sugd. Vend. (8th Am. ed.) 360. 
 
 4 Post, next section, " Rents and Profits." 
 
 8 1 Sugd. Vend. (7th Am. ed.) 302 (258). 
 
 Sha\v v. Wilkins, 8 Humph. (Tenn.) 646; 49 Am. Dec. 692.
 
 MEASURE OF DAMAGES FOR INABILITY TO CONVEY TITLE. 223 
 
 benefit of possession by the purchaser. The purchaser is liable to 
 the true owner for the mesne profits. 1 The rule may be different 
 where the purchaser seeks to rescind the contract and recover back 
 the purchase money. Such an action cannot be maintained except 
 ' upon the theory that the premises have been restored to the vendor, 
 who, being in possession, would be bound to answer to the real 
 owner for the mesne profits, and who for that reason is generally 
 allowed to set off the rents and profits against interest on the pur- 
 chase money which he is called upon to restore. 2 But if the real 
 owner acquits the purchaser of all demand for mesne profits, it has 
 been held that the latter cannot recover interest on the considera- 
 tion money awarded as damages. 8 Arid as a general rule the pur- 
 chaser can only recover interest for such time as he himself is liable 
 to the real owner for the mesne profits ; 4 hence, it has been held 
 that for such time as the claims of the real owner are barred by the 
 Statute of Limitations, the enjoyment of the rents and profits will be 
 a set-off against the purchaser's demand for interest on the consid- 
 eration money. If the purchaser in possession has not been and 
 cannot be compelled to account to the true owner for the mesne 
 profits, it has been held that he cannot recover interest on the pur- 
 chase money against the vendor. 5 
 
 1 Fletcher v. Button, 6 Barb. (N. Y.) 646. Dunnica v. Sharp, 7 Mo. 71. 
 
 * Post, ch. 24. Taylor v. Porter, 1 Dana (Ky.), 585; 25 Am. Dec. 155. where a 
 head note, which is sustained by the opinion, says: " So long as the parties abide 
 by the contract the vendee in possession is not chargeable with rents nor entitled 
 tc interest on the purchase money he has paid; after disaffirmance he is charge- 
 able with rents until he surrenders possession, and is entitled to interest until his 
 money is refunded. If his payment was partial only, there should be an equi- 
 table adjustment of rent and interest." In Combs v. Tarlton, 2 Dana (Ky.), 464, 
 it was held that in an action at law by the purchaser to recover damages for the 
 vendor's failure to make title, the pernancy of the rents and profits by the 
 purchaser in possession could not go in reduction of the damages, but that the 
 vendor might go into equity and have an account of the rents and profits, and 
 have them applied to the interest on the purchase money awarded as damages. 
 Herndon v. Venable, 7 Dana (Ky.), 371 ; Lowry v. Cox, 2 Dana (Ky.), 470. 
 
 *Post, 280. White v. Tucker, 52 Miss. 147. 
 
 'Thompson v. Guthrie, 9 Leigh (Va.), 101; 33 Am. Dec. 225. 
 
 "Post, 172. Cogwell v. Lyons, 3 J. J. Marsh. (Ky.) 41, which, however, 
 was a suit in equity for specific performance and damages.
 
 224 MARKETABLE TITLE TO REAL ESTATE. 
 
 96. Improvements. If the title fail the purchaser cannot 
 recover against a vendor acting in good faith the value of improve- 
 ments placed by him on the premises. If he expends money in 
 improvements when he is uncertain about the title, he does so at 
 his own risk. 1 Besides, in most of the States there are statutory 
 provisions which entitle the purchaser to an allowance for such 
 expenditures in proceedings against him by the true owner. 2 Of 
 course the purchaser cannot recover for improvements made by 
 him after discovering the vendor's inability to convey, 3 unless, it 
 is apprehended, he was induced to lay out money on the vendor's 
 
 1 2 Sugd. Vend. (8th Am. ed.) 515 (748). But the rule is otherwise in equity. 
 Id. 514. Walton v. Meeks, 120 N. Y. 79; 23 N. E. Rep. 1115, distinguishing 
 Gilbert v. Petelder, 38 N. Y. 135, where the contract obliged the purchasers to 
 expend a certain amount in improvements before they should be entitled to a 
 deed. Peters v. McKeon, 4 Den. ( N. Y. ) 546, 550. Hertzog v. Hertzog, 34 Pa. 
 St. 418, 420, obiter. Worthington v. Warrington, 8 C. B. 134; 65 E. C. L. 134, 
 where it was said by COLEMAN, J. : "I think it would be extremely hard if it 
 were held that the plaintiff (purchaser) was at liberty at once to make altera- 
 tions and then to throw the expense of them upon the defendant in the event of 
 his not being able to make a good title. Every one who purchases land knows 
 that difficulties may exist as to the making a title, which were not anticipated 
 at the time of entering into the contract. But, if the purchaser thinks proper 
 to enter into possession and to incur expenses in alterations before the title is 
 ascertained, he does so at his own risk." In Sedgwick Damages ( 8th ed ), sec- 
 tion 1017, it is said : " Where the plaintiff was let into possession under the con- 
 tract, he may recover the reasonable value of the improvements, less the value of 
 the use of the land (Bellamy v. Ragsdale, 14 B. Mon. (Ky.) 293 ; Sheard v. Wei- 
 burn, 67 Mich. 387 ) , probably in all cases, but certainly when the defendant 
 knew ne had no title. Erickson v. Bennett, 39 Minn. 326." The case first cited 
 was one in which the vendor refused to convey ; no question of title was raised 
 The second case was one in which the parties mutually agreed to rescind on 
 grounds other than failure of title. In Tyson v. Eyrick, 141 Pa. St. 296; 21 
 Atl. Rep. 635, the purchaser was under the contract entitled to a lot fifty feet 
 wide, but it was discovered, after he had built on the lot, that the vendor had no 
 title to a strip one foot in width. It was held that he could not recover dam- 
 ages for the misplacement of his building and the expense of contracting his 
 walls. "It was his duty before expending his money on valuable improvements 
 to ascertain and know his lines and to locate his buildings accordingly." 
 
 1 It seems, also, that without the aid of positive enactment the purchaser will, 
 in equity, be entitled to an allowance against the real owner for improvements 
 made in good faith. 2 Story Eq. Jur. 1237. Bright v. Boyd, 1 Story ( C. C. ) 478 ; 
 Benedict v. Oilman, 4 Paige (N. Y.), 58. Green v. Biddle, 8 Wh. (U. S.) 1. 
 There can be no doubt of his right to the allowance if the real owner stood by 
 and saw the improvements going on without asserting his title. Southall V. 
 McKeand, 1 Wash. (Va.) 336. Green v. Biddle, 8 Wh. (U. S.) 1, 77, 88. 
 
 'Lindley v. Lukin, 1 Bl. (Ind.) 266.
 
 MEASURE OF DAMAGES FOR INABILITY TO CONVEY TITLE. 225 
 
 engagement to perfect the title. 1 If the purchaser has recovered 
 against the real owner the value of improvements put on the land 
 by the vendor before the sale, the vendor, when sued for breach of 
 contract to make title, must have credit for the amount of such 
 recovery. 2 
 
 Where the vendor fraudulently conceals or misrepresents the 
 state of his title, the purchaser may recover for improvements. 1 
 It would seem that if the purchaser, instead of affirming the con- 
 tract by action for damages, seeks to rescind, 4 which implies a 
 restoration of the premises with the improvements thereon to the 
 vendor, he would in an action to recover back the purchase money 
 be entitled also to recover the value of the improvements as money 
 expended for the use and benefit of the vendor. Inasmuch as the 
 occupant of the premises would generally be entitled to an allow- 
 ance for improvements against the true owner, it would be inequi- 
 table to relieve him from the purchaser's claim. 
 
 The purchaser will not be allowed for repairs made after he has 
 been informed of a defect in the title, except such as may be 
 necessary to keep the premises in common condition. 6 
 
 96a. Failure of title to part. The measure of damages for 
 failure of title to part only of the lands included in the contract, 
 is such proportion of the whole consideration agreed to be paid, 
 as the value, at the time of the purchase, of the part to which the 
 title is found defective bears to the value of the whole quantity 
 purchased. 6 The rule is the same in an action for breach of a 
 covenant of warranty. 7 
 
 97. WHERE THE VENDOR ACTS IN BAD FAITH. If the 
 
 vendor fraudulently misrepresent or conceal the state of his title 
 the purchaser will, as a general rule, be entitled to require the 
 vendor to place him in as good a position as if the contract had 
 been performed ; in other words, he may have damages for the loss 
 of his bargain. 8 In England, however, it is held that such fraud 
 cannot aggravate the purchaser's damages in an action for breach 
 of the contract ; he must resort to his action for deceit, in which 
 
 1 As in Martin v. Atkinson, 7 Ga. 228 ; 50 Am. Dec. 403. 
 'McKinney v. Watts, 3 A. K. Marsh. (Ky.) 268. 
 Erickson v. Burnet, 39 Minn. 326. 
 
 4 Taylor v. Porter, 1 Dana (Ky.), 421; 25 Am. Dec. 155. But see Wilhelm 
 v. Fimple, 31 Iowa, 137; 7 Am. Rep. 117. 
 
 5 1 Sugd. Vend. (8th Am. ed.) 391. Thompson v. Kilcrease, 14 La. Ann. 340. 
 
 Gates v. Parmly, 93 Wis. 294 ; 66 N. W. 253 ; 67 N. W. 739. 
 'Post, 170. 
 
 * 1 Sugd. Vend. ch. 9, 3; 3 Sedg. Dam. (8th ed.) 1010. Krumm v. Beach, 
 
 15
 
 226 MARKETABLE TITLE TO HEAL ESTATE. 
 
 he will recover damages for all that he has lost through the ven- 
 dor's non-performance of the contract. The reason given for this 
 distinction is that the good or bad faith with which a party enters 
 into a contract is immaterial to the quantum of damages resulting 
 from a non-performance. 1 The distinction does not appear to 
 have been observed in America. It seems that if the purchaser 
 proceed in equity for a rescission of the contract on the ground of 
 fraud, instead of at law for damages, he can have a decree only 
 for the purchase money paid, with interest, and the value of his 
 improvements, after deducting the mesne profits of the land while 
 in his possession. 2 In Pennsylvania it is held that if the acts of 
 the vendor in selling without title amount to a fraud, the pur- 
 chaser will be entitled to damages sufficient to compensate him for 
 all expenses accruing from the want of title, but not, it seems, to 
 damages for the loss of his bargain. 3 In Texas the rule is that the 
 purchaser cannot, in a case of fraudulent representations as to the 
 title, recover for the loss of his bargain or the increased value of 
 the land, unless such increase is the result of his labor and ex- 
 penses, that is, unless he has put improvements on the premises. 4 
 What constitutes fraud by the vendor in respect to the title will 
 be elsewhere considered in this work. 5 It will suffice to say here 
 that, as a general rule, a vendor who enters into the contract 
 knowing that his title is not good, and fails to disclose that fact 
 to the purchaser, is guilty of fraud. It has been held, however, 
 that there is no obligation upon the vendor to disclose defects of 
 title which could be discovered upon such ordinary investigation 
 as a prudent man should make.' But inasmuch as it is settled 
 
 96 N. Y. 398; Peters v. McKeon, 4 Den. (N.Y.) 546; Xorthridge v. Moore, 118 
 N. Y. 419 ; 23 X. E. Rep. 570. In a case of fraud by the vendor the measure of 
 damages :s full indemnity to the purchaser. Cross v. Devine, 46 Hun, (N. Y.), 
 421. Sweem v. Steele, 5 Iowa, 352. Tracy v. Gunn, 29 Kans. 508. Goff T. 
 Hawks, 5 J. J. Marsh. (Ky.) 342. Erickson v. Bennett, 39 Minn. 326; Lan- 
 coure v. Dupre, (Minn.) 55 N. W. Rep. 129. 
 
 '2 Add. Cont. (8th ed.) 410 (901) ; 3 Sedg. Dam. (8th ed.) $ 1010. Sikes 
 v. Wild, 1 Best & S. 587 ; Bain v. Fothergill, 7 H. L,. 158. 
 
 * Bryan v. Boothe, 30 Ala. 311. 
 
 'Good v. Good, 9 Watts (Pa.), 567; Lee v. Dean, 3 WTiart. (Pa.) 316: 
 Hertzog v. Hertzog, 34 Pa. St. 418; Mtason v. Kaine, 67 Pa. St. 126; Burk v. 
 Sen-ill, 80 Pa. 413; 21 Am. Rep. 105. But see King v. Pyle, 8 S. & R. (Pa.) 
 J66; Bitner v. Brough, 11 Pa. St. 127. 
 
 4 Haddock v. Taylor, 74 Tex. 216; 11 S. W. Rep. 1G93. 
 
 Post, ch. 11. 
 
 MeConnell v. Dunlop. Hard. (Ky.) 44; 3 Am. Dec, 723; Stephenson v- 
 Harrison, 3 Litt. (Ky.) 170.
 
 MEASURE OF DAMAGES FOR INABILITY TO CONVEY TITLE. 227 
 
 that a vendor is liable to the purchaser in substantial damages 
 when he knows that the title is not complete, even though he had 
 a reasonable expectation of completing it by the time fixed for 
 performing the contract, there would seem to be no great hardship 
 in imposing the same consequences upon a vendor who not only 
 knows that his title is defective, but fails to disclose that fact in 
 his negotiations with the purchaser. Whether the vendor has been 
 guilty of fraud in respect to the title, is a question of fact to be 
 determined by the jury. Instructions to the jury should not be so 
 drawn as to assume the existence of fraud in the vendor. 1 Accord- 
 ingly it has been held error in the court, on an inquiry of dam- 
 ages, to instruct the jury that the failure of the vendor to perform 
 his contract raises a presumption of fraud, and authorizes them 
 to award the purchaser damages for the loss of his bargain.* 
 
 It is also error in the court to assume the non-existence of fraud 
 on the part of the vendor from his inability to convey, and, upon a 
 motion for judgment by default, to assess the damages at the con- 
 sideration money and interest without directing an inquiry by a 
 jury, even though the declaration contained no express averment 
 of fraud. 3 It has been held that if the title has been made so 
 doubtful by reason of the vendor's unauthorized dealings with the 
 property that the purchaser cannot be compelled to take it, the 
 latter may have damages for the loss of his bargain. 4 
 
 The purchaser is not entitled to substantial damages where the 
 vendor's fraud is of a kind, or is perpetrated under circumstances, 
 that can operate him no injury. 6 
 
 In New York it is held, in case of fraudulent misrepresenta- 
 tions as to the title, that it is not necessary for the plaintiff to 
 allege nor prove actual damages. 6 
 
 98. WHERE THE VENDOR SELLS EXPECTING TO OBTAIN 
 THE TITLE. It may happen that a vendor, without legal or equi- 
 table title, sells lands with the bona fide intention or expectation 
 of acquiring the complete legal title by the time fixed for completing 
 the contract. And it frequently happens that, having the equitable 
 
 1 Davis v. Lewis, 4 Bibb (Ky.), 456. 
 
 'Rutledge v. Laurence, 1 A. K. Marsh. (Ky.) 396. 
 
 Goff v. Hawks, 5 J. J. Marsh. (Ky.) 342. 
 
 4 Wohlfarth v. Chamberlain, 14 Daly (N. Y.), 180. In this case, the vendor 
 derived title through a sale previously made by himself as an assijrnee for the 
 benefit of creditors, the circumstances of which strongly tended to show fraud 
 <on his part, and rendered the title doubtful. 
 
 Post, ch. 11. 
 
 Blumenfeld v. Stine, 87 N. Y. Supp. 81; 42 Misc. 411.
 
 228 MABKETABLE TITLE TO BEAL ESTATE. 
 
 title, he sells expecting to get in the legal title and to be able to 
 convey at the appointed time. In the former case, the contract 
 being a mere speculation on his part, it is apprehended that the 
 vendor would be liable to the purchaser for the loss of his bargain. 
 It has been so held in the latter case with less reason. The leading 
 case on this point is Hopkins v. Grazebrook. 1 Here the purchaser 
 of an estate put it up at auction before he himself had received a 
 conveyance, and afterwards his vendor refused to convey, and it 
 was held that the purchaser at auction was entitled to damages for 
 the loss of his bargain. This case has been criticised upon the 
 ground that equitable titles are as much the subject of valid sale as 
 other property. 2 The decision seems, however, to have proceeded 
 largely upon the idea that it was a fraud in the vendor to hold out 
 the estate as his own, when he knew he had not the legal title. Of 
 course, the sale of an equitable title, as such, is valid and enforcible. 
 But the sale of an estate without disclosing the fact that the 
 vendor's title is merely equitable presents a very different question. 
 "With stronger reason it has been held that one who falsely or wrong- 
 fully assumes authority to sell as agent or auctioneer, will be liable 
 to the purchaser for the loss of his bargain, if the owner refuse to 
 ratify and perform the contract. 8 Upon a principle similar to that 
 which makes the vendor liable for the loss of the purchaser's bar- 
 gain, where the title turns out to be equitable only, and the holder 
 of the legal title refuses to convey, it has been held that if the ven- 
 dor enter into the contract knowing that his ability to convey a perfect 
 title depends upon a contingency, and that contingency do not trans- 
 pire, the purchaser will be entitled to damages for the loss of his 
 bargain. 4 The leading American case upon this point is Pumpelly 
 v. Phelps. 5 There, a trustee having power to convey only upon the 
 
 '8B. &C. 81. 
 
 s l Sugd. (8th Am. ed.) 540. 
 
 'Bush v. Cole, 28 N. Y. 261; 84 Am. Dec. 343, where an auctioneer sold the 
 premises for less than the sum at which he was authorized to sell by his princi- 
 pal. But see Key v. Key, 3 Head (Tenn.), 448, 451, where it was said: "Where 
 a man, without authority, sells the land of another and enters into no covenants, 
 btat receives the consideration, the measure of damages would be the money 
 received, and interest. 
 
 4 Chitty Cont. (9th Eng. ed.) 289; 3 Sedg. Dam. (8th ed.) 1011. 
 
 *40 N. Y. 59; 100 Am. Dec. 468; S. C., nom. Brinkerhoff v. Phelps, 43 Barb. 
 (N. Y.) 469.
 
 MEASURE OP DAMAGES FOR INABILITY TO CONVEY TITLE. 229 
 
 written consent of the cestui que trusty sold the estate but was 
 unable to obtain such consent, and it was held that the purchaser 
 might recover as damages the difference between the contract price 
 and the value of the land at the time of the breach, though the ven- 
 dor entered into the contract in good faith, believing that the con- 
 sent of the cestui que trust would be given. But if the purchaser 
 knows at the time of the contract that the ability of the vendor to 
 convey depends upon a contingency, the better opinion seems to be 
 that he can recover only nominal damages, if the vendor be unable 
 to complete the contract, 1 unless, indeed, having in view that con- 
 tingency, the vendor nevertheless undertakes to perfect the title by 
 a specified time. 2 Of course, if the purchaser knows that the 
 title of the vendor is merely equitable, but agrees to accept 
 it, such as it is, he cannot recover either nominal or sub- 
 stantial damages, if the vendor be unable to convey.* For 
 the same reasons it has been frequently held that a vendor in 
 good faith who is unable to procure his wife to join in the convey- 
 ance, and relinquish her contingent right of dower, must answer in 
 damages to the purchaser for the loss of his bargain. 4 It cannot be 
 denied that this rule would produce a hardship in a case in which 
 the vendor had been induced by his wife to believe that she would 
 relinquish her rights in the premises. At the same time it must be 
 remembered that if the*vendor desires to escape from the contract, 
 he would, if liable for nominal damages only, have a strong tempta- 
 
 1 Margraf v. Muir, 57 N. Y. 155, where the vendor had only a dower right in 
 the premises, and the purchaser knew that an order of court authorizing a con- 
 veyance would have to be obtained, the rights of infants being involved, and, 
 also, that under the peculiar circumstances of the case, such an order could not 
 be obtained without deceiving the court as to the true value of the premises. 
 Distinguishing Pumpelly v. Phelps, 40 N. Y. 59; 100 Am. Dec. 468. 
 
 1 Thus, in Shaw v. Wilkins, 8 Humph. (Tenn.) 646, the vendor informed the 
 purchaser at the time of the contract that the title was outstanding in third par- 
 ties, and that he expected to obtain it by the time fixed for completing the con- 
 tract. The vendor being unable to get in the title, it was held that the purchaser 
 might recover damages for the value of the land at the time of the breach. 
 
 'Ante, 8 11. 2 Sutherland Dam. 221. 
 
 4 Post, ch. 19. Drake v. Baker, 34 N. J. L. 358. Tirnbey v. Kinsey. 18 Hun 
 (N. Y.), 255; Heimburg v. Ismay, 35 N. Y. Super. Ct. 35, 40. Martin v. Mer- 
 ritt, 57 Ind. 34; 26 Am. Rep. 45; Puterbaugh v. Puterbaugli, 7 Ind. App. 380; 
 8. C.. 34 N E. Rep. 611.
 
 230 MARKETABLE TITLE TO REAL ESTATE. 
 
 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. 1 
 
 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. 2 
 
 99. WHERE THE VENDOR REFUSES TO CURE A DETECT OR 
 REMOVE INCUMBRANCES. 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. 8 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 limiting the 
 damages to the consideration money does not apply, and the pur- 
 chaser may recover full damages for whatever loss he has sustained. 4 
 
 1 Burk v. Serrill, 80 Pa. St. 413; 21 Am. Rep. 105. p See, also, Dormer v. Reden- 
 baugh, 61 Iowa, 269; 16 N. W. Rep. 127, and post, ch. 18, 199, and notes. 
 
 2 3 Sedg. Dam. (8th ed.) 1007. Pinkston v. Huie, 9 Ala. 252; Gibbs v. Jemi- 
 son, 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. Mo-Bride, 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. 
 
 1 Chitty Cont. (9th Eng. ed.) 289; 3 Sedg. Dam. 182. Williams v. Glenton, I* 
 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. 
 
 4 Taylor v. Barnes. 69 N. Y. 430. Where the premises sold were subject to a 
 species of vendor's lien in favor of the State, against which lien the vendor 
 agreed to protect the purchaser, the court, after observing that the rule limiting 
 the measure of damages to the purchase money paid, with interest, does not 
 apply where the vendor has sold lands to which he has not a perfect title, but
 
 MEASURE OF DAMAGES FOR INABILITY TO CONVEY TITLE. 231 
 
 If the purchaser himself lay out money in removing incumbrances, 
 or in perfecting the title, he can recover as damages only the amount 
 expended for those purposes. 1 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.* 
 
 100. LIQUIDATED DAMAGES. The parties may always agree 
 upon an amount to be paid as liquidated damages in case the vendor 
 fails to make title at the specified time, and the purchaser will be 
 entitled to recover that amount as damages, though it be equivalent to 
 <lamages for the present value of the land. But the amount agreed 
 upon must be reasonable ; otherwise it will be regarded as a penalty, 3 
 in which case, it is presumed, the actual value of the land at the time 
 of the breach of the contract would be allowed as damages. 4 The 
 
 which he undertakes to complete and perfect, and neglects so to do, continued : 
 J In this case there is an expressed agreement for indemnity, and a recovery 
 \vhich does not give the vendee the benefit of his bargain, 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 interest 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 cove- 
 nanted to indemnify the plaintiff, not merely by 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." 
 
 1 2 Sutherland Dam. 228. The same rule prevails in an action for breach 
 of the covenant of warranty or against incumbrances. Post, 129, 164. 
 
 = 2 Sutherland Dam. 228. With the exception of Cox v. Henry, 32 Pa. St. 
 18, all the cases cited by this author to the proposition in the text were 
 actions for breach of covenants for title. 8ee post, 131. In Chartier v. 
 Marshall, 56 N. 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. 
 
 8 Gates v. Parmly, 93 Wis. 294 ; 66 N. W. 253. 
 
 4 1 Sedg. Dam. (8th ed.) 405, where the rule was thus stated : " Wherever 
 the damages were evidently the subject of calculation and adjustment 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 
 <-ourt: "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 tfce contract with a full knowledge of all
 
 232 MARKETABLE TITLE TO KEAL ESTATE. 
 
 penalty of a title bond is usually double the purchase money, and 
 when that is the case, is, of course, as it purports to be, merely a 
 penalty and not liquidated damages. 1 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. 2 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. 8 If the 
 agreement contain various stipulations of different degrees of import- 
 ance, besides the stipulation to make a good title, and the damages 
 for the breach of some of the 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. 4 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 penalty, and no other intent is to be col- 
 lected from the instrument, it will generally be so treated, and the 
 
 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 liqui- 
 dated 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. 
 
 'Burrv. Todd, 41 Pa. St. 206. Stewart v. Noble, 1 Green (Iowa), 28. See, 
 also, Dyer v. Dorsey, 1 Gill & J. (Md.)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. 
 
 'Noyesv. 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 recovery 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 con- 
 sideration money, it was held that the $500 should be treated as liquidated 
 damages, and the purchaser was permitted to recover that amount. 
 
 8 Genner v. Hammond, 36 Wis. 277. 
 
 4 Carpenter v. Lockhart, 1 Ind. 434. Gates v. Parmly, 93 Wis. 294, 66 N. 
 W. 253.
 
 MEASUBE OF DAMAGES FOR INABILITY TO CONVEY TITLE. 233 
 
 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 dam- 
 ages, where the damages arising from the breach are uncertain and 
 are not capable of being ascertained 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 dam- 
 ages" 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. 1 
 
 1 Gobble v. Linden, 76 111. 157. See, also, 2 Grcenl. Ev. 258, 259.
 
 CHAPTER XL 
 
 ACTION AGAINST VENDOR FOR DECEIT. 
 
 GENERAL PRINCIPLES. 101. 
 
 WHAT CONSTITUTES FRAUD WITH RESPECT TO THE TITLE. 
 
 Concealment of defects. 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 several 
 particulars, the principal of which may be thus classified : (1) It givea 
 the purchaser the right to hold the vendor liable for defects of title, 
 though the contract has been executed by the acceptance of a con 
 veyance without covenants for title ; * (2) it entitles the purchaser to 
 the rescission of an executed contract of sale ; 2 (3) it entitles the pur- 
 chaser, 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 improvements ; 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 convey- 
 ance was with or without covenants for title, 5 and, if with covenants, 
 whether they have or have not been broken ; 6 (6) it absolves the 
 
 1 1 Sugd. Vend. 7, 247. 
 
 28ugd. Vend. 553. 
 
 1 Young v. Harris, 2 Ala. 108; Garner v. Leverett, 32 Ala. 413. Kiefer v. 
 Rogers, 19 Minn. 38. 
 
 4 Rawle'Covt. ch. 9; 1 Sugd. Vend. 358. 
 
 * 2 Sugd. Vend. 553; Rawle Covt. 322. Diggs v. Kirby, 40 Ark. 420. McDon- 
 ald v. Beall, 55 Ga. 288. Haight v. Hayt, 19 N. Y. 474. Edwards v. McLeay, 
 Coop. 308. 
 
 ' Sugd. Vend. 247. Where it is said that if a purchaser is entitled to relief in 
 a case of fraud in respect to the title, " it is not important that he has not been 
 evicted; if the rightful owner is not barred by adverse possession, the purchaser
 
 ACTION AGAINST VENDOR FOR DECEIT. 235 
 
 purchaser from his obligation to tender the purchase money and 
 demand a conveyance as a condition precedent to an action against 
 the vendor; 1 and (7) it deprives the vendor of the right to cure 
 defects or remove incumbrances,and to require the purchaser to take 
 the perfected title. 2 Several of the remedies here mentioned are 
 concurrent ; 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 ; 8 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 plaintiffs 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 ; * 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 to damages, and sue to recover 
 so much of the purchase money as he may have paid. 5 If the 
 purchaser desires to recover damages at law against the ven- 
 dor 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 
 deceit. 6 He cannot, if his action be for breach of covenant, increase 
 his damages by showing fraud on the part of the vendor. 7 It is true 
 that the action of covenant sounds in damages, but, as has been 
 
 cannot be compelled to remain during the time to run in a state 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 intc 
 which the misrepresentation of the seller has brought him." Whitlock v. Den- 
 linger, 59 111. 96. 
 
 1 Thomas v. Coultas, 76 111. 493. 
 
 1 Green v. Chandler, 25 Tex. 148. 
 
 *Krumm v. Beach, 96 N. Y. 398. 
 
 1 Sugcl. Vend. (8th Am. ed.) :J7(J. Corbett v. McGregor (Tex. Civ. App.) 
 84 S. W. 278. 
 
 'Pearsoll v. Chapin, 44 Pa. St. 9. 
 
 2 Bl. Com. 166; 1 Sugd. Vend. 236; Kerr on Fraud (Bump's ed.), p. 324. 
 Carvill v. Jacks, 43 Ark. 439. 
 
 T Rawle Covt. 159.
 
 236 MARKETABLE TITLE TO REAL ESTATE. 
 
 already seen, the purchaser's recovery is limited to the considera- 
 tion money and costs of eviction. 1 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 remedy, the 
 objection cannot be made that the contract is under seal, and that 
 covenant should have been brought. 2 The purchaser does not waive 
 his right to recover damages, in a case of fraud, by paying the pur- 
 chase money. 3 He waives his right to rescind the contract by 
 remaining in possession and paying the purchase money after dis- 
 covering the fraud. 4 But the action to recover damages is an affirm- 
 ance of the contract, and it is always his privilege to complete 
 the contract without impairing his right to reimbursement for 
 any loss which he may have incurred through the vendor's fraud. 6 
 If the purchaser should choose to keep the premises and bring 
 an action for damages grounded on the fraud, his possession of the 
 premises, if it be probable that he would never be disturbed therein, 
 would, it is apprehended, be considered in mitigation of damages. 
 The purchaser is not entitled to relief in a case of fraud which 
 cannot operate him an injury, 6 as where the vendor had previously 
 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. 7 Nor where the vendor fraudulently acquired 
 the title, if it appear that the person defrauded made no objection, 
 
 1 Ante, 90, and post, 164. 
 
 2 Parham v. Randolph, 4 How. ( Misa. ) 435 ; 35 Am. Dec. 403 ; English v. Bene- 
 dict, 25 Miss. 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. (N.Y.) 183. 
 See, also, Rawle Covts. (5th ed.) 167; Kerr on Fraud (Am. ed.), 326. 
 
 White v. Sutherland, 64 111. 181. 
 
 'Strong v. Strong, 102 N. Y. 69; 5 N. E. Rep. 799; Schiffer v. Dietz, 83 N. 
 Y. 300. 
 
 5 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. Wuesthoff v. Seymour, 22 N. 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 resulting from the alley being in either case sub- 
 stantially the same. The same principle was declared in Morrison v. Lods, 
 39 Cal. 38, but was disapproved in Kelly v. R. Co., 74 Cal. 557. 
 
 7 Meeks v. Garner, 93 Ala. 17; 8 So. Rep. 378. And where land has been con- 
 veyed and the deed recorded, a subsequent contract by the grantor to sell the 
 eame land to a stranger, dots not place a cloud on the title of the grantee, nor 
 furnish a ground of objection to thp title by the vendee. Goodkind v. Bart- 
 ktt, 153 111. 419; 38 N. E. Rep. 1045.
 
 ACTION AGAINST VENDOR FOR DECEIT. 237 
 
 after reasonable opportunity and full knowledge of the facts. 1 Nor 
 where an incumbrance, not disclosed by the vendor, is released by 
 the incumbrancer, and the purchaser suffers no actual injury. 2 Nor 
 where an incumbrance, fraudulently concealed, has been removed 
 by the vendor before decree in a suit by the purchaser for rescis- 
 sion. 3 Nor, generally, in any case in which the purchaser is not 
 damnified by the alleged fraud. 4 
 
 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. 6 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. 6 An action in such case 
 may be maintained against the agent himself; it is no defense 
 that he was acting for another. 7 Where a husband 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 con- 
 tract was made in the name of the husband, and without her 
 
 'Comstock v. Ames, 1 Abb. App. Dec. (N. Y.) 411. 
 
 'Campbell v. Whittingham, 5 J. J. Marsh. (Ky.) 46; 20 Am. Dec. 241. 
 
 * Davidson v. Moss, 5 How. (Miss.) L. 673. But see post, as to right of 
 vendor to remove objections where he has been guilty of fraud, 314. 
 
 Halls v. Thompson, 1 Sm. & M. (Miss.) 489. Board of Commrs. v. 
 Younger, 29 Cal. 172. Walsh v. Hall, 66 N. C. 233. 
 
 5 1 Sugd. Vend. (8th Am. ed.) 9. Evans v. Bicknell, 6 Ves. 174, 193, semble; 
 Burrowes v. Locke, 10 Ves. 470; Bowles v. Stewart, 1 Sch. & Lef. 227. Gill 
 v. Corbin, 4 J. J. Marsh. (Ky.) 392. Concord Bank v. Gregg, 14 N. H. 331. 
 
 Kerr on Fraud (Am. ed.), 326; citing New Brunswick R. Co. v. Conybeare, 
 9 H. L. Cas. 1 ; Henderson v. Lacon, L. R., 5 Eq. 262. In Law v. Grant, 37 Wis. 
 f>48, it was held that if an agent effected a sale of the principal's land by false 
 representations or other fraud, without the authority or knowledge of the prin- 
 cipal, the latter is chargeable with such fraud in the same manner as if he had 
 known or authorized it. The representations in this case 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 purchaser sot 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, unless the fraud was authorized 
 by him. New Brunswick R. Co. v. Conybeare, 9 H. L. Cas. 1. 
 
 7 Riley v. Bell, 120 Iowa, 618 ; 95 N. W. 170.
 
 238 MARKETABLE TITLE TO BEAL ESTATE. 
 
 knowledge. 1 An agent fraudulently misrepresenting the title may, 
 of course, be held personally liable for damages. 2 A trustee who 
 makes false representations as to incumbrances on the property sold 
 by him, will be personally liable to the purchaser. 8 In England, 
 and in some of the American States, a vendor or his agent, fraudu- 
 lently 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. 4 
 
 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 ; 5 consequently, it 
 has not been deemed necessary in the following pages to distinguish 
 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 representa- 
 tions of the vendor at the sale will not be merged in the written 
 contract.' 
 
 102. WHAT CONSTITUTES FRAUD WITH RESPECT TO THE 
 TITLE Concealment of defects. The following propositions may be 
 stated aa embodying the principal features of the decisions as to what 
 
 1 Krumm v. Beach, 96 N. Y. 398. 
 
 'Norris v. Kipp, (Iowa) 38 N. W. Rep. 152. 
 
 1 Sugd. Vend. (8th Am. ed.) 12. 
 
 4 24 Viet. chap. 96, 28. Pub. Stat. Mass. 1882, p. 1147. Gen. Stat. Minn. 
 1881, p. 539. 
 
 * Sugd. Vend. 243, where it is said that, in a 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 insuffi- 
 cient to warrant a judgment against the vendor for damages. And, on the other 
 hand, in the case of an executed contract, the court might be influenced in refus- 
 ing a rescission by the consideration that the purchaser still had his remedy on 
 the covenants contained in his deed. 
 
 Shanks v. Whitney, 66 Vt. 405.
 
 ACTION AGAINST VENDOR FOR DECEIT. 239 
 
 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. 1 It is as much a fraud to 
 
 1 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. 8.) 195. Saltonstall 
 v. Gordon, 33 Ala. 151. State v. Holloway, 3 Blackf. (Ind.) 47. Emmons v. 
 Moore, 85 111. 304; Strong v. Lord, 107 111. 26. Crutchfield v. Danilly, 16 Ga. 
 434. Young v. Bumpass, 1 Freem. Ch. (Miss.) 241. Rosemau v. Conovan, 43 
 Cal. 110. Brown v. Montgomery, 20 N. Y. 287; 75 Am. Dec. 404. Bank v. Bax- 
 ter, 31 Vt. 101. Carr v. Callaghan, 3 Litt. (Ky.) 365, 875. Corbett v. 
 McGregor, (Tex. Civ. App.) 84. This is the suppressio veri of the text 
 writers, and is substantially the rule established by the leading case of 
 Edwards v. McLeay, Coop. 308, Sir WM. GRANT delivering the opinion. To 
 this Lord ELDON added on appeal, that if one party make a representation 
 which he knows to be false, but the falsehood of which the other party has no mean- 
 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 the mere execution 
 and delivery of a deed, with general warranty conveying land which the grantor 
 had previously conveyed to a third person, does not of itself amount 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 this decision with the general rule that the vendor is guilty 
 of fraud if he suppresses any fact material to the validity of the title. The 
 court cites no authority, and gives no reason for the decision other than that 
 "there may have been, and frequently does exist, a condition of things which 
 would make it perfectly safe for the purchaser to take a deed of land under such 
 circumstances, and rely upon his covenants for his security against the outstand- 
 ing title, and such a transaction could take place in perfect good faith." In Alax- 
 field 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 concealment 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 sup- 
 presses 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. Shiffer v. Dietz, 83 N. Y. 300; S. C., 53 How. Pr. (N. Y.) 872. 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 conver- 
 sation 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 suppres-
 
 240 MARKETABLE TITLE TO REAL ESTATE. 
 
 suppress the truth as it is to utter a falsehood. 1 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, 2 among which, per- 
 haps, the most important are the relations of trust and confidence 
 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 discovered by an exam- 
 ination of the records. 3 On the other hand, it has been held that 
 the vendor is under no obligation to disclose the existence of un- 
 opened streets and such like easements affecting 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 pur- 
 chaser has equal knowledge with himself upon the subject, 4 nor to 
 \ disclose the fact that his title is equitable only, the legal title 
 ' being outstanding in another, |heT)ein 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. 6 
 As a general rule it may be said that the vendor is bound to dis- 
 close all facts material to the title of which he is informed. A 
 title which upon the face of the vendor's title deeds, or the public 
 records, appears complete and perfect, may in fact be utterly 
 worthless, as where the estate is held pur outre 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 pur- 
 
 sion of a material fact entitling the 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 
 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. 
 
 'Bean v. Herrick, 12 Me. 262; 28 Am. Dec. 176. 
 
 3 Babcock v. Case, 61 Pa. St. 427 ; 100 Am. Dec. 654. Moreland v. Atchison, 
 19 Tex. 303., 311. 
 
 Wagner v. Perry, 47 Hun (N. Y.) 516. 
 
 Provident L. & Tr. Co. v. Mclntosh, (Kans.) 75 Pac. 498.
 
 ACTION AGAINST VENDOR FOR DECEIT. 241 
 
 chaser a fact which defeats or lessens the value of his title. 1 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 pur- 
 chaser could not discover, there is a question as to whether or not 
 he is hound 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. 2 It seems scarcely fair 
 to apply to a case of alleged fraud with respect to the title the 
 nile 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 He 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 
 sonse, open to the observation of the purchaser. But it is well 
 known that an examination of the title is a serious matter, involv- 
 ing much labor and delay, and is frequently dispensed with upon 
 the assurances of the vendor that his title is perfect. Whether 
 the estate consists of fertile lands or sterile lands, uplands or 
 meadows, productive or non-productive mines, can be determined 
 by any man of ordinary capacity; but whether the record shows a 
 clear title, is a fact that few purchasers can ascertain without pro- 
 fessional assistance and much expense. Whether the vendor is 
 bound to disclose that his title has been questioned or doubted 
 does not appear. But it, has been held that if the validity of the 
 title depends upon a particular fact, and the vendor knows that 
 such fact exists, no duty devolves upon him to disclose to the 
 purchaser that the existence of such fact had ever been questioned. 
 Thus, where a son placed money in the hands of his father with 
 which to buy lands for him (the son), and the father died before 
 a conveyance was executed, and the vendor required indemnity 
 against any future claim by the heirs of the father before he 
 would convey the land to the son, it was held that the son was not 
 obliged to disclose to his vendee the fact that such indemnity had 
 been required and given. 3 This case, however, scarcely goes the 
 length of deciding that the vendor is under no obligation to dis- 
 close facts which render the title merely doubtful, and not 
 absolutely bad. 
 
 'Sugcl. Vend. (8th Am. ed.) 9. Edwards v. McLeay, Coop. 312. 
 
 - 1 Sugd. Vend. (8th Am. ed.) 2, 9. Jones v. Keen, 2 Moo. <t R. 348. Ward 
 v. Wiman, 17 Wend. (N. Y.) 193, a case in which the land supposed to have 
 been sold did not exist. 
 
 'Farrell v. Lloyd, 69 Pa. St. 239, 248. 
 16
 
 242 MABKETABLE TITLE TO REAL ESTATE. 
 
 103. Wilful or careless assertions. The vendor is guilty of 
 fraud if he makes an assertion of fact in regard to the title which 
 he knows to be false, or which he has no reason to believe to be 
 true, and which is in fact untrue. 1 It is a sufficient proof of fraud, 
 as a general rule, to show that the vendor's representations are 
 false, and that he had knowledge of facts contrary to his representa- 
 tions. 3 There are cases which hold that the representations of the 
 vendor as to title may not be fraudulent in law, though exception- 
 able in point of morals, as where he makes untrue statements 
 in regard to a fact concerning which the purchaser has the same 
 opportunity and means of information as he. 8 It must be admitted 
 that these decisions stand upon very debatable ground, and that the 
 courts should be slow to condone fraud on the part of the vendor 
 under any circumstances, especially where it consists of a positive 
 averment, and not a mere suppression of the truth. A mere cove- 
 nant that the grantor is seized in fee is not of itself a fraudulent 
 representation if he has no title. 4 
 
 104. Defects which appear of record. The vendor is not 
 necessarily guilty of fraud in failing to call the attention of the pur- 
 
 1 Hinkle v. Margerum, 50 Ind. 242 ; Strong v. Downing, 34 Ind. 300 ; Wiley 
 v. Howard, 15 Ind. 169; Warren v. Carey, 5 Ind. 319; Fitch v. Polke, 7 
 Blackf. (Ind.) 564. Herman v. Hall, 140 Mo. 270; 41 S. W. 733. If the ven- 
 dor positively affirm, as of his own knowledge, that the title is good, without 
 knowing whether it is in fact good, he will be deemed guilty of fraud if the 
 title is in fact bad. Barnes v. Union Pac. R. Co., 54 Fed. Rep. 87 ; 12 U. S. App. 1. 
 
 2 1 Sugd. Vend. (8th Am. ed.) 5. Burrowes v. Locke, 10 Ves. 470; Lake v. 
 Brutton, 8 De G., M. & G. 449. 
 
 'Yeates v. Pryor, 11 Ark. 66, the court, by WALKEB, J., saying: "It is not 
 every representation of the vendor in regard to the property sold which will 
 amount to fraud, be it ever so exceptionable in point of morals. The misrepre- 
 sentation, in order to affect the validity of the contract, must relate to some mat- 
 ter of inducement to the making of the contract in which, from the relative posi- 
 tion of the parties and their means of information, the one must necessarily be 
 presumed to contract upon the faith and trust which he reposes in the represen- 
 tations of the other on account of his superior information and knowledge in 
 regard to the subject of the contract; for if the means of information are alike 
 accessible to both, so that with ordinary prudence or vigilance the parties 
 might respectively rely upon their own judgment, they must have been pre- 
 sumed to have done so; or, if they have not so informed themselves, must 
 abide the consequences of their own inattention and carelessness." In this 
 case fraud on the part of the vendor was alleged, both in respect to the value 
 of the property and state of the title. 
 
 'Decker v. Schulze, (Wash.) 39 Pac. Rep. 261. Ante, 102, n.
 
 ACTION AGAINST VENDOR FOR DECEIT. 243 
 
 chaser to a defect of title or an incumbrance which appears of 
 record, or which appears on the face of the instruments evidencing 
 the vendor's title. 1 This is analogous to the rule that the vendor 
 need not call the attention of the purchaser to defects in the qualitv 
 of the estate which are fully open to his observation. But the 
 vendor will be guilty of fraud if he induce the purchaser to forego 
 an examination of the title in order that his attention may not be 
 
 1 Turner v. Harvey, Jac. 178. Ward v. Packard, 18 Cal. 391. Richardson v. 
 Boright, 9 Vt . 368. The cases which hold that the vendor is not guilty of fraud 
 in failing to disclose an incumbrance apparent of record proceed largely upon the 
 hypothesis that the purchaser has himself examined the record, l aware of the 
 incumbrance, and tacitly purchases subject thereto, and that he has taken the 
 incumbrance into consideration in determining the price he will pay for the 
 property. Ward v. Packard, supra, citing Story Eq. 208. It is hardly to be 
 supposed that a business man, knowing of an incumbrance, would purchase with- 
 out mentioning the fact for the purpose of obtaining the property at the lowest 
 figure. The other principal ground of such decisions, namely, that the pur- 
 chaser is guilty of laches in failing to examine the title and must suffer the con- 
 sequences wou/d seem better founded in reason, though it has not passed with- 
 out attack. Cullum v. Branch Bank, 4 Ala. Burwell v. Jackson, oSeld. (N. Y.) 
 545. Keifer v. Rogers, 19 Minn. 32. Pryse v. McGuire, 81 Ky. 608. " It 
 would be the grossest injustice to infer fraud upon the mere silence of a vendor 
 as to the existence of an incumbrance where the abstract of title Is sufficient to 
 put the purchaser on inquiry." Steele v. Einkle, 3 Ala. 352. The cage of 
 Griffith v. Kempshall, Clarke Ch. (N. Y.) 571, has gone as far, perhaps, as any 
 other in support of the proposition that in a case of fraud by the vendor the pur- 
 chaser is chargeable with laches in failing to examine the records, where such 
 examination would have disclosed the fraud. The sale was at auction, the 
 vendor declaring with knowledge to the contrary that there were no incum- 
 brances on the property. A most important element of this decision, however, 
 was that after time given for examining the title the purchaser had accepted a con- 
 veyance with general warranty, and that the vendor's fraud had been merged in 
 the conveyance. It is not easy to reconcile this decision with the rule that the 
 contract will be vitiated if the vendor make definite statements for the purpose of 
 preventing inquiries by the purchaser which would disclose the fraud. In Tallman 
 v. Green, 3 Sandf. (N. Y.) 487, it was held that false representations as to the title 
 are no ground for rescission when the record shows the true state of the title, since 
 the facts falsely represented must be such as the grantee could not know to be 
 untrue. It does not appear that the vendor in this case knew that his representa- 
 tions were false. The purchaser was left to his remedy at law on the vendor's 
 covenants. In Andrus v. St. Louis, 130 U. 8. 643, it was held that a purchaser 
 was guilty of laches in failing to inspect the premises, by which he would have 
 discovered an adverse claimant in possession.
 
 244 MARKETABLE TITLE TO REAL ESTATE. 
 
 brought to such defects ; l or if he occupies such a confidential rela- 
 tion to the purchaser that by reason of such relation the latter is 
 induced to forego an examination of the title. 2 In either case the 
 same principle is applied as that upon which the vendor is held 
 guilty of fraud in actively concealing latent defects in the quality of 
 the estate. In every sale of lands there is an implied contract that 
 the vendor has an indefeasible title, unless the contrary is expressed; 3 
 hence, in every case in which the purchaser enters into the contract 
 without making an examination or requiring an abstract of the title, 
 it would seem fair to. assume that he did so relying upon the obliga- 
 tion of the vendor to disclose any defect in his title. Where the 
 vendor knows there is a defect in the title, and knows also that the 
 purchaser intends to dispense with an abstract or examination of the 
 
 '2 Warvelle Vend. 844. Richardson v. Boright, 9 Vt. 368. Corbett v. 
 McGregor, (Tex. Civ. App. ) 84 S. W. 278. If the purchaser refrains from 
 examining the title by reason of the vendor's representation that the title is 
 good, he will be relieved if the title is bad. Bailey v. Smock, 61 Mo. 213. But 
 if he is not influenced by the vendor in failing to examine the title, he will not 
 be relieved on the ground of fraud. Patten v. Stewart, 24 Ind. 332, 342, semble. 
 
 Babcock v. Case, 61 Pa. St. 430; 100 Am. Dec. 454. Hunt v. Moore, 2 Pa. 
 St. 107, where the vendor was an executor and man of affairs, and the vendee a 
 devisee of the vendor's testator, and a woman of weak intellect much under the 
 executor's influence. Rimer v. Dugan, 39 Miss. 477; 77 Am. Dec. 687. In Bab- 
 cock v. Case, 61 Pa. St. 427; 100 Am. Dec. 454, it appeared that the vendor held 
 a tax deed, and represented to the purchaser that he had examined the title and 
 found it good. The purchaser, saying that he would take the vendor's word for 
 it, bought the land without examining the title. It did not affirmatively appear 
 that the vendor was aware of the facts vitiating the title, but the court held that 
 there was a relation of trust and confidence between the parties, and that, having 
 undertaken to state the facts truly, his ignorance of them would not redeem a 
 falsehood in regard to them, in any material respect, from being a fraud which 
 would avoid the contract. If the vendor prevents the vendee from examining 
 the records by assurances that the title is perfect and the property free from 
 incumbrances, a case of special confidence is established and the vendee is not 
 chargeable with neglect in failing to examine the title. Bailey v. Smock, 61 Mo. 
 217. That a vendor is not bound to inform the purchaser of the existence of a 
 judgment lien or other incuiubrance on the premises which may be easily dis- 
 covered by an examination of the public records, is doubtless true if the 
 parties are dealing at arm's length, but it is believed that a court of equity would 
 lay hold on slight circumstances to establish a relation of trust and confidence 
 between the buyer and seller, and to charge the latter with an abuse of that 
 confidence. 
 
 1 Bui-well v. Jackson, 5 Seld. (N. Y.) 535. In Crawford v. Keebler, 5 Lea 
 (Tenn.), 547, where the vendor failed to inform the purchaser of a suit to enforce
 
 ACTION AGAINST VENDOR FOR DECEIT. 245 
 
 title, it is no more than fair to give to the silence of the vendor 
 under such circumstances the effect of an express representation 
 that the title is unimpeachable. Of course a misrepresentation as 
 to a fact affecting the title not apparent of record, such as the fact 
 of inheritance or the like, will fix the vendor with fraud. 1 
 
 There is undoubtedly a conflict of authority as to the duty of the 
 vendor to disclose defects of title which the purchaser might dis- 
 cover by an examination of the records. There are cases which hold 
 that the vendor is liable, if, knowing of a defect or iucurabrance, he 
 fails to disclose it, 2 others, that he is liable if he assert that the title 
 is good, when he knows that the records show it to be defective ; * 
 
 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, is a fraud upon 
 him, for which he may resist the payment of the purchase money. See, also, 
 Prout v. Roberts, 32 Ala. 427. Crutchfield v. Danilly, 16 Ga. 432. 
 
 1 Hammers v. Hanrick. 69 Tex. 412 ; 7 S. W. Rep. 345. 
 
 1 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 con- 
 veyance " could be considered such. In Prout v. Roberts, 32 Ala. 427, the rule was 
 :nus 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 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, 2o Ala. 554 ; McLe- 
 more v. Mabson, 20 Ala. 137. To the same effect see Johnson v. Pryor, 5 
 Hayw. (Tenn.) 243; Crawford v. Keebler, 5 Lea (Tenn.), 547; Nicol v. Nicol, 4 
 Baxt. (Tenn.) 145; Napier v. Elam, 6 Yerg. (Tenn.) 108. 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 virtu- 
 ally represents 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 Har- 
 ding v. Nelthorpe, Nelson. 118. Cater v. Pembroke, 2 Bro. C. C. 281. In Ken- 
 nedy 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 pur- 
 chaser, though the land records showed the defect. 
 
 The rule that the purchaser is chargeable with laches in failing to examine.
 
 246 MARKETABLE TITLE TO BEAL ESTATE. 
 
 and lastly, eases which hold that the purchaser has no right to rely 
 on the vendor's representation that the title is good, in any case, 
 but should satisfy himself by an examination of the records. 1 
 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 be no doubt that in morals 
 the vendor is guilty of fraud. And when it is sought in law to 
 visit upon him the consequences of his fraud, the vendor should 
 not be allowed to answer, that if due diligence had been exercised, 
 his fraud would have been discovered and avoided. 2 If the rights 
 
 the title does not apply where the vendor, knowing the title to be defective, rep- 
 resents 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 discovered by the purchaser if 
 lie had used due diligence and caution in examining 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 Am. Dec. 241. Kiefer v. Rogers, 
 19 Minn. 32. Topp v. White, 12 Heisk. (Tenn.) 165; Napier v. Elam, 6 Yerg. 
 (Tenn.) 108; Ingram v. Morgan, 4 Humph. (Tenn.) 66; 40 Am. Dec. 626. 
 Riley v. Bell, 120 Iowa, 618; 95 N. W. 170; Muller v. Palmer, 144 Cal. 305; 77 
 Pac. 954. The vendor is estopped from asserting that the purchaser might have 
 ascertained the truth by examining the public records. Wilson v. Higbee, 62 
 Fed. Rep. 723. (Contra, Williams v. Thomas, 7 Kulp. (Pa. Com. PI.) 371.) 
 
 1 Griffith v. Kempshall, Clarke Ch. ( N. Y. ) 571. See notice of this case, p. 241. 
 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, be such an at- 
 tempt. Pryse v. McGuire, 81 Ky. 608. In Kerr v. Kitchen, 7 Pa. St. 486, the head 
 note states that " fraudulent concealment of defects cannot be 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 at- 
 tempted. The parties acted under a mistake as to the legal effect of an instru- 
 ment affecting the title. In Wagner v. Perry, 47 Hun (N. Y.), 516, it was 
 lield that the purchaser is not guilty of fraud in failing to state facts affect- 
 ing the title disclosed by the records, so 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 be discovered from the abstract, the purchaser will be 
 relieved, can scarcely be considered authority for denying relief to a pur- 
 chaser who might have discovered the vendor's fraud (not mistake) by exam- 
 ining the title, there being obviously a wide difference between a case in which 
 the vendor furnishes an abstract 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 it is clear and unincumbered. 
 
 1 " No man can complain that another has relied too implicitly on the truth
 
 ACTION AGAINST VENDOR FOR DECEIT. 247 
 
 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. 1 
 
 If the vendor make a false statement as to any specific fact 
 affecting the title, for example, if he knowingly and falsely states 
 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. 2 
 
 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 misrep- 
 resentations 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, can- 
 not accuse me of want of caution, because I relied implicitly on your fairness 
 nnd honesty.' " Language of Lord CHELMSFORD 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. M. Mon. (Ky.) 23, 
 it was declared a bad defense to say that the purchaser might have discovered 
 the vendor's falsehoods by using due diligence. 
 
 1 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 intimation 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 execution 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 put upon inquiry 
 by the contents of a deed in his chain of title, as between himself and the vendor. 
 The doctrine of constructive notice from these sources is only applied for the 
 protection of third persons against the claims of subsequent purchasers. 
 Champlin v. Laytin, 6 Paige Ch. (N. Y.) 189; .31 Am. Dec. 382. 
 
 'Blumenfeld v. Stine, 87 N. Y. Supp. 81; 42 Misc. 411.
 
 248 MARKETABLE TITLE TO REAL ESTATE. 
 
 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. 1 The English rule upon 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 abstract, the purchaser will be entitled 
 to have the contract rescinded. 2 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.* 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 American sources of infor- 
 mation respecting the title. In England there is no general regis- 
 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 
 
 1 Baptiste v. Peters, 51 Ala. 158. 
 ! 1 Sugd. Vend. (8th Am. ed.) 375 (246). 
 . Bryant T. Boothe, 30 Ala. 311; 68 Am. Dec. 117.
 
 ACTION AGAINST VENDOR FOR DECEIT. 249 
 
 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. 1 He must have relied upon such representations. 2 
 and the representations themselves must have been in respect to 
 some material thing unknown to him. 3 But if a statement 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. 4 
 
 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 he 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. 5 It has been held, however, 
 that a false representation founded on a mistake resulting from 
 
 1 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 Lonl 
 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. 
 
 1 Bond v. Ramsey, 89 111. 29. Luckie v. McGlasson, 22 Tex. 282. 
 
 s Holland v. Anderson, 38 Mo. 55. 
 
 4 Bethell v. Bethell, 92 Ind. 318; Brooks v. Riding, 46 Ind. 15; Krewson v. 
 Cloud, 45 Ind. 273; Booher v. Goldsborough, 44 Ind. 490; Frenzel v. Miller, 
 37 Ind. 1 ; 10 Am. Rep. 62. 
 
 "RaAvle Covt. (5th ed.) 541 n., and cases cited, few of wKich, however, in- 
 volved any question of fraudulent representations of the vendor as to his title. 
 See ante, 103, as to effect of statements by the vendor which he did not 
 know to be true.
 
 250 MARKETABLE TITLE TO REAL ESTATE. 
 
 gross negligence is a fraud, 1 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. 2 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 3 or rescission. 4 
 
 106. Statement of opinion. Mere expressions 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- 
 tions exist between them, do not constitute fraud on the part of 
 the vendor. 5 A purchaser has no right to rely on the statement of 
 the vendor that his title is good, \vhere 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. 6 
 
 I Smith v. Richards, 13 Pet. (U. S.) 38. 
 J Kiefer v. Rogers, 19 Minn. 32. 
 
 I 1 Sugd. Vend. (14th ed.) 28; Bigelow on Fraud, 415. Gunby v. Sluter, 44 
 Md. 237. Shackelford v. Hundly, 1 A. K. Marsh. (Ky.) 495; 10 Am. Dec. 
 753. Watson v. Baker, 71 Tex. 739; 9 S. W. Rep. 867. 
 
 4 Vaughn v. Smith, 34 Oreg. 54; 55 Pac. 99. 
 
 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. 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. (N. Y.) 
 15. In a case of conflicting claims to property in which one claimant em- 
 ployed 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. 
 
 ? Conwell v. Clifford, 45 Ind. 393. Fellows v. Evans, 33 Oreg. 30; 53 Pac. 
 491. The mere expression 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 disclosed, 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 ad- 
 verse claim against the property cannot be maintained, is, of course, a state- 
 ment of opinion only. Jasper v. Hamilton, 3 Dana ( Ky. ) , 284. But To state
 
 ACTION AGAINST VENDOR FOR DECEIT. 251 
 
 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. 1 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 
 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. 2 So, also, if the vendor assert that the title is good when he 
 
 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 false- 
 hood, would, it is apprehended, entitle the purchaser to relief. 
 
 1 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 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 to relieve him from the consequences. The truth or false- 
 hood of such a representation can be tested by ordinary vigilance and attention. 
 It is an opinion in regard to the law and is always understood as such." This 
 case was a suit by the vendor to rescind the contract on account of the pur- 
 chaser'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 general proposition that a statement 
 of what the law is by any person, is a statement of opinion only. 
 
 "Glasscock v. Minor, 71 Mo. 655. Ixmcks v. Taylor, 23 Ind. App. 245; 55 
 N. E. 238. In Jasper v. Hamilton, 3 Dana (Ky.), 284, the court said: "We 
 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 full}' disclosed, the vendee is furnished with the menns 
 to form his own opinion or to obtain the opinion of others, and if he
 
 252 MARKETABLE TITLE TO REAL ESTATE. 
 
 knows of a paramount title outstanding in a third person. 1 If the 
 vendor states material facts as of his own knowledge and not 
 as a mere matter of opinion, but of which he has no knowledge 
 whatever, he is guilty of fraud. 2 It seems, however, that there 
 must be some evidence of fraudulent intent on the part of the 
 vendor other than the mere want of knowledge of the truth of his 
 assertions. 3 
 
 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, 4 as, where the vendor falsely states the amount of 
 liens on his property. 5 This rulq, 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 " suf- 
 ficient means of knowing," the falsity of the vendor's representa- 
 tions 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 
 
 fails to do so and purchases without recourse, it is his own folly and he has no 
 just ground to complain. Whether a title is paramount and superior to an 
 adverse conflicting claim is a question of law 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 so, 
 as within that of the vendor." 
 
 1 Spence v. Durein, 3 Ala. 251. 
 
 * Kerr on Fraud (Bump), 53, and cases cited; Rawle Covt. 322. Adams v. 
 Jarvis, 4 Bing. 66, BEST, C. J., saying: " He who affirms either what he doea 
 not know to be true, or knows to be false, to another's prejudice and his own 
 gain, is both in morality and law guilty of falsehood and must answer in dam- 
 ages." See, also, Munroe v. Pritchett, 16 Ala. 787: 50 Am. Dec. 203. Shackel- 
 ford v. Hundley, 1 A. K. Marsh. (Ky.)500; 10 Am. Dec. 753. Davis v. Heard, 44 
 Miss. 51; Halls v. Thompson, 1 Srn. & M. (Miss.) 485; Rimer v. Dugan, 39 Miss. 
 477; 77 Am. Dec. 687. 
 
 3 Ante, 105 ; Rawle Covts. (5th ed.) 232; Kerr on Fraud 19, and cases cited. 
 
 4 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. 
 
 5 Thomas v. Coultas, 76 111. 423. Kenny v. Hoffman, 31 Va. 442. Brown v. 
 Herrick, 99 Pa. St. 220.
 
 ACTION AGAINST VENDOR FOR DECEIT. 253 
 
 purchaser, the only "means of knowing" the fraud of the vendor. 1 
 There can be, of course, no fraud in an innocent misrepresentation 
 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. 2 In equity 
 the contract may always be rescinded if there be a mutual mistake 
 as to the title. 3 
 
 Certain acts and conduct of the vendor other than misrepresenta- 
 tion 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 con- 
 veyance without covenants for title when the contract provides for 
 covenants ; * or to threaten to resell the premises together with the 
 purchaser's improvements unless the purchaser would accept a con- 
 veyance with special warranty, he being entitled to general cove- 
 nants. 5 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. 6 The purchaser must also aver that he relied 
 on and was deceived by the vendor's fraudulent representation. 7 If 
 facts showing fraud are alleged it is not necessary to allege fraud in 
 express terms ; the law implies the fraudulent intent. 8 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 com- 
 plete, whether the vendor was or was not aware of the falsity of his 
 
 1 Ante, 104. 
 
 'Munroe v. Pritchett, 16 Ala. 787; 50 Am. Dec. 203. 
 
 J 1 Story Eq. 142. Hitchcock v. Giddings, 4 Price. 135. Wood v. Johnson, 
 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. 
 
 4 Bethell v. Bethell, 92 Ind. 318. 
 
 1 Denston v. Morris, 2 Edw. Ch. (N. Y.) 37. 
 
 Marsh v. Sheriff, (Md.) 14 Atl. Rep. 664. 
 
 1 Luckie T. McGlasson, 22 Tex. 282. 
 
 Prysev. McGuire, 81 Ky. 611. Lanier v. Hill, 25 Ala. 559. Jo&selyn T. 
 Edwards, 57 Ind. 212.
 
 254 MARKETABLE TITLE TO REAL ESTATE. 
 
 statement. The vendor is constructively guilty of fraud if he allege 
 a thing to be true of which he has in fact no knowledge. 1 It has 
 been held that the plaintiff must allege that the matters in respect 
 to which the false representations 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 vendor in regard to matters upon which he 
 might have obtained information from other sources, such as the 
 public records. 2 
 
 The burden is on the vendee to prove the fraud which he alleges. 8 
 Fraud is never presumed, though of course aprima 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. 4 The mere 
 existence of defects in the title is not sufficient, however, to raise a 
 presumption of fraud on the part of the vendor. 5 
 
 1 Saund. PI. 527. Munroe v. Pritchett, 16 Ala. 787; 50 Am. Dec. 203. Britt v. 
 Marl-, (Oreg.) 25 Pac. Rep. 636; Rolfes v. Russell, 5 Oreg. 400; Denning v. 
 Cresson, 6 Oreg. 241. 
 
 'Bianconi v. Smith, (Ariz.) 28 Pac. Rep. 880, where it was also held that a pur- 
 chaser 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. 244. 
 
 * Story Eq. Jur. 200. Holland v. Anderson, 38 Mo. 55. Williams v. Thomas, 
 7 Kulp. (Pa. Co. Ct. Rp.) 371. 
 
 4 Green v. Chandler, 25 Tex. 148. 
 
 'Harland v. Eastland, Hard. (Ky.) 590, semble.
 
 OF AFFIRMANCE BY PROCEEDINGS AT LAW AFTER THE CON- 
 TRACT HAS BEEN EXECUTED. 
 
 ACTION FOR COVENANT BROKEN. 
 
 CHAPTER XII. 
 
 OF THE COVENANT FOR SEISIN. 
 
 FORM AND EFFECT. 108. 
 
 WHAT CONSTITUTES A BREACH. 109. 
 
 ASSIONABILITY OF THIS COVENANT. 
 
 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. 114. 
 
 Conflict of laws. 115. 
 MEASURE OF DAMAGES. 116. 
 BURDEN OF PROOF. 117. 
 PLEADINGS. 118. 
 
 108. 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," * 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. 2 
 
 In every ease 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 
 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 
 
 1 Rawle Covts. (5th ed.) 21. n. 3. Where the grantor covenanted that he was 
 "signed" of a good estate, etc., it was held that a court of law could not read 
 "seised" for "signed, "so as to make the sentence operative as a covenant of 
 seisin. It was intimated that relief might be had inequity. Hagler v. Simpson, 
 1 Busbee (N. Car.), 384. 
 
 * Post. 109, this chapter.
 
 256 MARKETABLE TITLE TO KEAL ESTATE. 
 
 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. 1 Thus, the rule is general that a grantee who has accepted 
 a conveyance with covenants for title, 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 cove- 
 nants, except that of seisin, unless there has been an actual or con- 
 structive 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 covenanted that he was rightfully 
 seised of an indefeasible estate in fee simple, 2 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." 8 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. 4 
 
 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 
 
 1 Wilder v. Ireland, 8 Jones (N. C.) L. 90, where 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. 
 
 * Parker v. Brown, 15 N. H. 176, disapproving Willard v. Twitchell, 1 N. 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. 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 enti- 
 tled 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. 
 
 1 Platt Covts. 306; Howell v. Richards, 11 East, 641, language of Lord ELLEN- 
 BOROUGH. 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.
 
 OF THE COVENANT FOR SEISIN. 257 
 
 actual though tortious seisin, 1 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.* 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 possession within the meaning of the champerty acts, or those 
 which prohibit the conveyance of pretensed titles. 4 This reasoning 
 is by no means satisfactory, in view of those cases which hold that 
 a champertous deed is void as between the parties themselves, 5 and of 
 course it 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 champer- 
 tous deed is held valid as between the parties ; for it is hardly to 
 be conceived that a grantee would require a covenant in effect 
 merely that the grantor was in possession, when in most instances 
 lie could without delay or trouble inform himself 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 
 
 "Marston v. Hobbs, 2 Mass. 433; 3 Am. Dec. 61; Bickford v. Page, 2 Mass. 
 455; Twambly v. Henley, 4 Mass. 442; Bearce v. Jackson, 4 Mass. 410; Slater v. 
 Rawson, 6 Met. (Mass.) 444 ; Raymond v. Raymond, 10 Gush. (Mass.) 140; Fol- 
 lett v. Grant, 5 Allen (Mass.), 174. Griffin v. Fail-brother, 1 Fairf. (Me) 95; 
 Boothley v. Hathaway, 20 Me. 251 ; Baxter v. Bradbury, 20 Me. 260 ; 37 Am. 
 Dec. 49; Wilson v. Widenham, 51 Me. 567. Watts 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 
 ise, but did not claim title, and it was held that the covenant of seisin was 
 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.) 
 803; Hamilton v. Wilson, 4 Johns. (N.Y.) 72; 4 Am. Dec. 253. Furniss 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. 33 111. 295; Frazer 
 v. Supervisors, 74 111. 291. Kincaid v. Brittain, 5 Sneed (Tenu.), 119. Downer 
 v. Smith, 38 Vt. 464; 76 Am. Dec. 148. Brandt v. Foster, 5 Clarke (Io.), 295; 
 Zent v. Picken, 54 Iowa, 535. Lockwood v. Sturtevunt, 6 Conn. 385; Davis v. 
 Lyman, 6 Conn. 249, and notes. Lot v. Thomas, 1 Penn. (N. J. L.) 297; 2 Am. 
 Dec. 354. Pollard v. Dwight, 4 Cranch (U. S. 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. 509. 
 
 4 Cases cited, note 1 above. 
 
 Williams v. Hogan, Meigs (Tenn.), 189. 
 
 17
 
 258 . MARKETABLE TITLE TO REAL ESTATE. 
 
 title. In those States, however, in which the rule in question ha& 
 become firmly established and recognized as a rule of property, the 
 reasons which have led thereto, and even the fact that the rule it- 
 self flows from an arbitrary construction of the covenant, are com- 
 paratively unimportant, so longasthat 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 to the covenant of seisin the in- 
 terpretation 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 
 inheritence" was not satisfied by an actual seisin, the grantor in 
 fact having no title. 1 
 
 Covenants of seisin are by statute in some of the States implied 
 from the operative words "grant, bargain and sell" in a convey- 
 ance. 2 But in other States no such implication is made, 3 and none 
 existed at common law. The question whether a deed made in an- 
 other State contains a covenant of seisin must be determined by 
 the law of that State. 4 
 
 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. 6 
 
 1 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 covenant 
 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. Williams, 2 Vt. 328. 
 
 *Memmert v. McKeen, 112 Pa. St. 315; so in Missouri Schnelle Lumber Co. 
 v. Barlow, 34 Fed. Rep. 853. 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 granting part of a deed, under a statute giving that effect to 
 the words "grant, bargain and sell." Foote v. Clark, 102 Mo. 394; 14 S. W. 
 Rep. 98. The habendum clause does not qualify nor restrict the covenant of 
 seisin implied from the use of the words " grant, bargain, and sell." Cole- 
 man v. Clark, 80 Mo. App. 339. 
 
 'Frost v. Raymond, 2 Caines (N. Y.), 188; 2 Am. Dec. 228. Aiken v. 
 Franklin, (Minn.) 43 N. W. Rep. 839. 
 
 4 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: R. C., 2Lev. 26. Hamilton v. Wilson, 4 Johns. (N.Y.) 72; 4 Am. Dec. 253.
 
 OF THE COVENANT FOR SEISIN. 259 
 
 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. 1 
 
 109. 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, 2 or by any 
 diminution of the quantity of estate therein, as if the interest con- 
 veyed turn out to be a life estate instead of a fee simple. 3 It has 
 been held that the covenant was not broken by the conveyance of 
 an estate merely defeasible upon the happening or non-happening 
 of some future event, 4 such as the disaffirmance of a conveyance 
 executed during the minority of the grantor ; 5 but the better opin- 
 ion 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 ;' leaving the 
 
 1 2 Sugd. Vend. 577. Kingdon v. Nottle, 1 M. & S. 355. King v. Jones, 5 
 Taunt. 418; Orme v. Broughton, 10 Bing. 353. Lovvrey v. Tilleny, 31 Minn. 
 500; 18 N. W. Rep. 452. 
 
 'Wilson v. Forbes, 2 Dev. (N. C. ) 30, holding that the covenant of seisin is 
 broken if the grantor has no right to sell all the land embraced within the boun- 
 daries 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. 
 
 * Frazer v. Supervisors, 74 111. 291. Lockwood v. Sturdevant, 6 Conn. 373. 
 A covenant that the grantor is seised of an undivided moiety of an estate is 
 broken if there has been 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 Me. 567. The covenant of seisin is broken if 
 the grantor has neither the possession, the right of possession, nor the right 
 to the legal title at the time of the conveyance. Coleman v. Clark, 80 Mo. 
 App. 339. 
 
 'Pollard v. Dwight, 4 Cranch (U. S. S. C.),421. Van Nostrand 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 foreclosure proceedings in which the mort- 
 gagor, 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. 
 
 Bool v. Mix, 17 Wend. (N. Y.) 132; 31 Am. Dec. 285. 
 
 Shep. Touchstone, 170: 2 Sngd. Vend. (8th Am. ed.) 286 (610) : 2 \Vashb. 
 Real Prop. ( 4th ed.) 457 (657) ; 4 Kent Com. (llth ed.) 555 (471) : RawIeCovts. 
 (5thed.) 58. See, generally, also, cases cited supra this chapter nd " Cove- 
 nant against Tncumbrances." subd. "What Constitutes Breach." Abbott v. Allen, 
 
 14 Johns. (N. Y.) 253; 7 Am. Dec. 554; Adams v. Conovcr. 87 X. Y. 452: 41 
 Am. Dec. 381. Downer v. Smith, 38 Vt. 464: 76 Am. Dec. 148; Clark v. Con-
 
 260 MARKETABLE TITLE TO REAL ESTATE 
 
 fact that the title may never be defeated, to be considered only 
 with reference to the damages to be awarded to the grantee. 
 
 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 prctensed 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. 1 The covenant of 
 seisin is broken if there be no such land in existence as the grantor 
 undertakes to convey. 2 So also, if at the time of the conveyance 
 the grantor does not own such things fixed to the freehold as would 
 pass by a conveyance of the land if he owned them. 3 
 
 roe, 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. (N. 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. 
 
 1 Harvey v. Doe, 23 Ala. 637; Abernathy v. Boazman, 24 Ala. 189; 60 Am. 
 Dec. 459, citing Jackson v. Demont, 9 Johns. (N. Y.) 55; 6 Am. Dec. 259; Liv- 
 ingston v. Iron Works, 9 Wend. (N. Y.) 510; Van Hoesen v. Benham, 15 Wend. 
 (N.Y.) 164. Den v. Geiger, 4 Halst. (N. J.) 225. Edwards v. Roys, 18 Vt. 473. 
 Ailkins v. Tomlinson, 121 Mo. 487. 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, Meigs (Tenn.), 189. See, also, Whittaker 
 v. Kone, 2 Johns. Cas. (N. Y.) 58, and note. 
 
 Basford 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 was no land to which the covenant could attach. 
 
 *Mott v. Palmer, 1 Const. (N. Y.) 564, where the fixtures consisted of a 
 rail fence placed there by a tenant under an agreement by which he might
 
 OF THE COVENANT FOR SEISIN. 261 
 
 Neither a judgment nor a mortgage, 1 nor a mere incumbrance, 2 
 such as an outstanding term of years 3 nor an easement in the prem< 
 ises, 4 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 5 or consummate, 6 is an incumbrance 
 within the foregoing rule. Nor is this covenant broken by the 
 existence of a highway over the land granted, 7 since the freehold 
 still remains in the owner of the soil. Neither is the covenant 
 broken by condemnation proceedings, 8 nor by an unlawful intru- 
 sion on the land ; 9 nor by the unlawful removal of fixtures by a ten- 
 ant after the expiration of his term. 10 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. 11 
 
 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. 
 
 1 Reasoner v. Edmundson, 5 Ind. 394. Sedgwick v. Hollenbeck, 7 Johns. ( X. 
 Y.) 376; Stanard v. Eldridge, 16 Johns. (X. 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. (X. Y.) 655. 
 
 "Fitzhugh v. Croghan, 2 J. J. Marsh, (Ky.) 439; 19 Am. Dec. 139; Hebler 
 v. Brown, 41 X. Y. Supp. 441. 
 
 ' 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 X. 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. 
 
 4 Blondeau v. Sheridan, 81 Mo. 545. 
 
 'Massie v. Craine, 1 McC. (S. C.) L. 489; Building Co. v. Fray, 96 Va. 
 559, 32 S. E. 58. 
 
 ' 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. 
 
 7 Boone Real Prop. 311 ; Tiedeman Real Prop. 851 ; 4 Am. & Eng. Encyc. 
 of L. 479. Whitbeck v. Cook, 15 Johns. (X. Y.) 483; 8 Am. Dec. 272. 
 Vaughn v. Stuzaker, 16 Ind. 338. Moore v. Johnston, 87 Ala. 220: 6 So. 
 Rep. 50. 
 
 'Smith v. Hughes, 50 Wis. 620; Merser v. Oestrich, 52 Wis. 693. 
 
 Smith v. Hughes, 50 Wis. 620. 
 
 10 Loughran v. Ross, 45 X. Y. 792. 
 
 "Fitzhugh v. Croghan, 2 J. J. Marsh. (Ky.) 439; 19 Am. Dec. 139, citing 
 2 Saund. 171 c. Morris v. Phelps, 5 Johns. (X. Y.) 53; 4 Am. Dec. 323. 
 Jones v. Warner, 81 111. 343.
 
 262 MARKETABLE TITLE TO REAL ESTATE. 
 
 Whatever subsequently occurs to defeat the title cannot affect the 
 covenant of seisin. 1 Of course there is little occasion for the appli- 
 cation of this principle, except in the case of a tortious disseisin 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. 8 He 
 would be estopped from setting up his title against the grantor.* 
 
 110. ASSIGNABILITY OF THE COVENANT OF 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 " assig- 
 nee;" there is, in strictness, however, no assignment; the rights of 
 the so-called assig-nee 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, 4 though of course he cannot claim those 
 rights except under an instrument sufficient to convey the land. 5 
 All covenants for title run with the land until they are broken. 6 
 They then become a species of personal property, a chose in action, 
 
 1 Coit v. McReynolds, 2 Rob. (N. Y.) 655. This was an action for breach of a 
 covenant of seisin. The covenantor derived title under a sheriff's deed executed 
 in pursuance of a judgment of foreclosure. The judgment was opened while 
 the property was in the plaintiff's hands, and a prior mortgage was foreclosed, 
 whereby the plaintiff lost the property. 
 
 'Bigelow Estoppel, 346. Furness v. Williams, 11 111. 229; Beebe v. Swart 
 wout, 8 Gil. (111.) 162. Fitch v. Baldwin, 17 Johns. (N. Y.) 161. Horrigan v. 
 Rice, 39 Minn. 49; 38 N. W. Rep. 765. 
 
 Fitch v. Baldwin, 17 Johns. (N. Y.) 161, the court saying: " It can never be 
 permitted to a person to accept a deed with covenants of seisin, and then 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." 
 
 4 Rawle Covts. (5th ed.) 232. 
 
 Beardsley v. Knight, 4 Vt. 471; 33 Am. Dec. 193. 
 
 Rawle Covts. (5th ed.) 204.
 
 OF THE COVENANT FOR SEISIN. 263 
 
 which, like any other personal property, passes to the personal rep- 
 resentative of the covenantee. It is sometimes said that the cove- 
 nants cease to run witli the laud after breach because then they are 
 turned into mere rights of action, incapable of assignment at com- 
 mon law. But as the running of the covenants with the land is an 
 incident flowing 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 
 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 cove- 
 nant 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. 1 
 
 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. 2 The principal reasons assigned 
 
 1 Roberts v. Levy, 3 Abb. Pr. (N. Y.) 811. 
 
 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. Deo. 114: 
 Hendricks v. Kesee, 32 Ark. 714. Salmon v. Vallejo, 41 Cal. 481. See the 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. 879. This was the leading case in New- 
 York prior to the adoption of the Code of Civil Procedure in that State, a pro- 
 vision of which that every action shall be prosecuted by and in the name of the 
 real party in interest, has been construed 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 decision in Qreenby v. Willcocks, supra, are as follows: 
 Tillotson v. Boyd, 4 Sandf. (N. Y.) 521; Blydenburgh v. Cotheal, 1 Duer (N.Y.), 
 176; Hamilton v. Wilson, 4 Johns. (N. Y.) 72; 4 Am. Dec. 253; McCarty v. Leg- 
 gett, 3 Hill (N. Y.), 134; Beddoe v. Wadsworth, 21 Wend. (N. Y.) 120; Mygatt v. 
 Coe, 124 N. Y. 212; 26 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; Tufts v. Adams, 8 Pick. (Mass.) 549; Whitney v. Dinsmore, 6
 
 264 MARKETABLE TITLE TO REAL ESTATE. 
 
 for this position are : (1) That the covenant in question is broken 
 as soon as made if the covenantor have no title, and that a present 
 right of action immediately accrues thereupon to the covenantee, 
 which, being a mere chose in action, is both at common law and by 
 virtue of the statute 32 Hen. VIII, c. 24, incapable of assignment ; 
 
 Cush. (Mass.) 128; Sprague v. Baker, 17 Mass. 586; Bartholomew v. Candee, 14 
 Pick. (Mass.) 167; Bynes v. Rich, 3 Gray (Mass.), 518; Ladd v. Noyes, 137 Mass. 151. 
 It is difficult to reconcile these decisions with those of the same State declaring 
 that the covenant of seisin is satisfied by a seisin in fact though without right; 
 for to reach the conclusion that the covenant in question does not run with the 
 land, it seems absolutely necessary to decide that the covenant is broken as soon 
 as made if the covenantor was not at that time seised of an indefeasible estate. 
 Mitchell v. Warner, 5 Conn. 497. This case contains an elaborate exposition of 
 the rule that the covenant of seisin does not run with the land, and has been 
 frequently cited as a leading case. Lockwood v. Sturdevaut, 6 Conn. 373; 
 Davis v. Lyman, 6 Conn. 256; Hartford Co. v. Miller, 41 Conn. 112; Gilbert v. 
 Bulkley, 5 Conn. 262; 13 Am. Dec. 57. Prov. Life & Tr. Co. v. Seidel, (Pa. St.> 
 23 Atl. Rep. 561. Kenny v. Norton, 10 Heisk. (Tenn.) 384. Scoffins v. Grandstaff , 
 12 Kans. 467. Pence v. Duval. 9 B. Mon. (Ky.) 48. Smith v. Jefts, 44 N. H. 482. 
 Chapman v. Kimball, 7 Neb. 399; S. C., 11 Neb. 250; Davidson v. Cox, 10 Neb. 
 150; 4 N. W. Rep. 1035. Chapman v. Holmes, 5 Halst. (N. J.) 20; Carter v. 
 Denman, 3 Zab. (N. J. L.) 260; Lot v. Thomas, 2 N. J. L. 297; 2 Am. Dec. 54; 
 Garrison v. Sandford, 12 N. J. L. 261. Durand v. Williams, 53 Ga. 76, obiter ; 
 but, see Redwine v. Brown, 10 Ga. 318, where a doubt was suggested as to the 
 rule stated in the text in view of the general policy of the laws of that State iu 
 favor of the assignability of choses in action. By statute in Georgia since the 
 above decision an assignee is given the benefit of the covenant against incum- 
 brances. Rev. St. 1882, p. 672. Randolph v. Kinney, 3 Rand. (Va.) 397. 
 Grist v. Hodges, 3 Dev. (N. C.) L. 200. Revenel v. Ingram, 131 N. C. 549; 
 42 S. E. 967. Brady v. Spurck, 27 111. 482; Jones v. Warner, 81 HI. 343; 
 Richard v. Bent, 59 111. 38; 14 Am. Rep. 1. This case distinguishes between 
 a covenant of seisin and that against incumbrances, holding that an assignee i 
 entitled to the benefit of the latter. Moore v. Merrill, 17 N. H. 75; 43 Am. 
 Dec. 593. Lowery v. Tilleny, 31 Minn. 500; 18 N. W. Rep. 452. Williams v. 
 Wetherbee, 1 Aik. (Vt.) 253; Garfield v. Williams, 2 Vt. 327; Pierce T. 
 Johnson, 4 Vt. 255; Swasey v. Brooks, 30 Vt. 692. Westrope v. Chambers, 
 51 Tex. 178. Pillsbury v. Mitchell, 5 Wis. 21. The rule stated in the text 
 prevailed in Maine prior to the statute in that State providing in ex- 
 press terms that an assignee should have the benefit of the covenant of seisin. 
 Hacker v. Storer, 8 Gr. (Me.) 228; Pike v. Galvin, 29 Me. 188. Lewis 
 v. Ridge, Cro. Eliz. 863, and Lucy v. Livington, 2 Lev. 26; 1 Vent. 175; 
 2 Keble, 831, have been very generally cited by the American courts in 
 support of the proposition contained in the text. Mr. Rawle, however, in 
 his erudite treatise on the Law of Covenants for Title, says that they 
 decide nothing more tha^n that a covenant for quiet enjoyment ceases 
 to run with the land after it is broken. Covts. for Title, 205. In Gar- 
 rison v. Sanford, 12 N. J. L. 261, the court held that a breach of the cove-
 
 OF THE COVENANT FOR SEISIN. 263 
 
 and (2) that the grantor and covenantor having no title no estate 
 could pass by his conveyance to the covenantee, and that conse- 
 quently there was nothing with which the covenant could run so as 
 to enure to the benefit of a remote grantee. 1 
 
 nants of seisin or against incumbrances did not enure to the benefit of a subse- 
 quent grantee of the land. " If," said the court, "a man breaks the leg of my 
 horse, whom I afterwards sell, the purchaser cannot sue for the injury, as it is 
 not done to him; and the injury to me is not diminished nor my right to redress 
 destroyed because I have parted with the animal." The case supposed by the 
 court is by no means parallel to that of a subsequent grantee claiming the benefit 
 of the original grantor's covenant of seisin. In the case imagined the actual loss, 
 whatever it may be, is sustained by the vendor, while in the case of a breach of 
 the covenant of seisin the actual loss or injury must, if the land has been trans- 
 ferred, fall upon the grantee, and it would seem as inequitable to deny to him the 
 right of action on the covenant as it would be to give to the seller of the horse 
 the right to recover for an injury to the horse inflicted after the property in it 
 had passed to the vendee. In Raymond v. Squire, 11 Johns. (N. Y.) 47, the cove- 
 nantee was allowed to recover in an action on a covenant of seisin after the land 
 had been transferred by him. A covenantee does not lose his right to recover for 
 breach of the covenant for seisin by conveying his right and title to the land to a 
 third person. Cornell v. Jackson, 3 Gush. (Mass.) 506. A covenant that the 
 land conveyed contains a certain number of acres is equivalent to a covenant of 
 seisin, is broken as soon as made if there be a deficiency in the acreage, and the 
 right of action does not pass to an assignee. Salmon v. Vallejo, 41 Cal. 481. 
 
 It is worthy of note that while the early New York decisions declare that the 
 benefit of a covenant of seisin does not pass to a subsequent grantee or assignee 
 by virtue of the covenantee's conveyance, they sustain a separate formal assign- 
 ment of the benefit of that covenant, executed by the covenantee to secure his 
 grantee against loss from an apprehended failure of the title. See Raymond v. 
 Squire, 11 Johns. (N. Y.) 47. It is not easy to understand why the express and 
 formal assignment should be upheld, and the incidental or implied assignment 
 declared invalid, since in either case it is a chose in action that is assigned, and 
 the one is as much within the rule prohibiting the assignment of rights in action 
 as the other. In Kenny v. Norton, 10 Heisk. (Tenn.) 385, the court declined to 
 depart from the rule that the covenant of seisin does not run with the land, 
 which it conceives to be established by the weight of American authority, and 
 assigns, as a reason, that the covenant of warranty, amply sufficient under all 
 circumstances for the protection of the assignee, is invariably inserted in all con- 
 veyances in that State, except those in which the grantor merely quit claims 
 such right or interest as he may have in the land, and the further reason that the 
 assignee is protected by a short Statute of Limitations (seven years) against the 
 demands of the adverse claimant. 
 
 1 See the cases cited in the last note. See, also, Bender v. Fromberger, 4 Dall. 
 (Pa.) 438; Stewart v. West, 14 Pa. 836. Webber v. Webber, 6 Or. (Me.) 127. 
 Jones v. Warner, 81 111. 343. McCarty v. Leggett, 3 Hill (N. Y.). 134. Wilson
 
 266 MARKETABLE TITLE TO REAL ESTATE. 
 
 112. Contrary rule. Doctrine of "continuing breach." 
 But while the rule that the covenant of seisin does not run with the 
 land, obtains, perhaps, in most of the States, a contrary position has 
 been taken in others, and maintained with much force. 1 They hold 
 
 v. Forbes, 2 Dev. (N. C.) 32. Innes v. Agnew, 1 Ohio, 389. Allen v. Allen, 
 (Minn.) 51 N. W. Rep. 473. 
 
 1 Kingdon v. Nottle, 1 Maule & 8. 355; S. C., 4 Maule & S. 53. This case was 
 decided in the early part of the present century, and has been cited and followed 
 in many of the American cases holding that the covenant of seisin runs with the 
 land. The case establishes the proposition that want of title in the covenantor is 
 a continuing breach, not completed until actual damage has been suffered by the 
 covenantee or his grantee. The decision has been criticized by Chancellor KENT 
 as " too refined to be sound" (4 Kent. Com. 472), and questioned in Spoor v. 
 Green, L. R., 9 Exch. 99. See Rawle Covts. 208. See cases cited to proposition 
 that covenant against incumbrances runs with land, post, 128. Mecklem v. 
 Blake, 22 Wis. 495; Eaton v. Lyman, 33 Wis. 34; S. C., dissenting opinion of 
 DIXON, C. J., 30 Wis. 41, 46. Collier v. Gamble, 10 Mo. 467; Dickson v. Desire, 
 23 Mo. 162, overruling Chauvin v. Wagner, 18 Mo. 531 ; Lawless v. Collier, 19 
 Mo. 480; Magwire v. Riggin, 44 Mo. 512; 75 Am. Dec. 121; Walker v. Dearer, 5 
 Mo. App. 139; Hall v. Scott Co., 2 McCrary (U. S.), 356; Jones v. Cohitsett, 79 
 Mo. 188; Allen v. Kennedy, 91 Mo. 324; 2 S. W. Rep. 142. Langenburg v. 
 Dry Goods Co., 74 Mo. App. 12. Bacchus v. McCoy, 3 Ohio, 211; 17 Am. Dec. 
 585; Foote v. Burnet, 10 Ohio, 331; 36 Am. Dec. 90; Devore v. Sunderland, 
 17 Ohio, 52; 49 Am. Dec. 442; Great Western Stock Co. v. Saas, 24 Ohio St. 
 542. Scofield v. Iowa Homstead Co. 32 Iowa, 317; 7 Am. Rep. 197. This is 
 the leading Iowa case. It contains an able review of authorities bearing upon 
 the question of the assignability of the covenant of seisin, and has been fre- 
 quently cited by the courts in other States. Knadler v. Sharp, 36 lo. 232; 
 Boon v. McHenry, 55 lo. 202; 7 N. W. Rep. 503. Martin v. Baker, 5 Ind. 
 393, leading case; Coleman v. Lyman, 42 Ind. 289, distinguishing Burnham 
 v. Lasselle, 35 Ind. 425; Wright v. Nipple, 92 Ind. 313; Worley v. Hineman, 
 (Ind.) 33 N. E. Rep. 261. The remark in Rawle Covt. (5th ed.) p. 264, 
 n., that in Indiana the court has repudiated the contract of a " continuing 
 breach " of the covenant of seisin, must be limited in its application to cases 
 in which no possession passed to the covenantee. Beyond that the cases there 
 cited do not go. See, also, p. 314 of the same work, where it is said that the 
 cases in that State maintain the doctrine of a continuing breach down to the 
 present day. Cole v. Kimball, 52 Vt. 639. McCrady v. Brisbane, 1 Nott & 
 McC. (S. Car.) 104; 9 Am. Dec. 676. Mecklem v. Blake, 22 Wis. 495; 82 
 Am. Dec. 707. The doctrine of the English courts, and its American ad- 
 herents, in respect to the assignability of the covenant of seisin, was suc- 
 cinctly stated in this case as follows:. "These courts hold that where 
 the covenantor is in possession claiming title, and delivers the possession to 
 the covenantee, the covenant of seisin is not a mere present engage- 
 ment made for the sole benefit of a covenantee, but that it is a covenant of 
 indemnity entered into in respect of the land conveyed, and intended for the
 
 OF THE COVENANT FOB SEISIN. 267 
 
 that the covenant is not completely broken, until the want of title 
 in the covenantor has resulted in a loss of the premises, or actual 
 damage suffered by the covenantee, or those deriving title from him ; 
 that the covenant is prospective in its nature, and intended as a 
 security for the title, or an indemnity against loss, attaching to and 
 running with the land for the benefit of such person as shall be the 
 owner thereof at the time the loss is sustained. 1 The cases which 
 decide that a covenant of seisin is in the nature of a security for the 
 title attaching to and running 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 facil- 
 itate the alienation of real property. The opposite conclusion is 
 founded upon the old rule that a chose in action is not assignable, a 
 
 security of all subsequent grantees, until the covenant is finally and completely 
 broken, and they consequently hold that no such right of action accrues to the 
 covenantee on the mere nominal breach, which always happens the moment the 
 covenant is executed, as is sufficient to merge or arrest the covenant in the hands 
 of the covenantee, or to deprive it of the capacity of running with the land for 
 the benefit of the person holding under the deed, when an eviction takes place or 
 other real injury is actually sustained. The possession of the land or seisin in 
 fact under the deed, by the covenantee or those claiming through him, is consid- 
 ered such an estate as carries the covenant along with it." In Catlin v. Hurl- 
 burt, 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 execu- 
 tion, until he had lodged with the clerk of the court a release from his grantee of 
 all right of action on a covenant of warranty contained in the original conveyance 
 from the plaintiff's grantor. 
 
 1 Kimball v. Bryant, 25 Minn. 496, 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 covenantee 
 assumes to pass that title to another, it is fair to suppose that he intends to pass 
 with it, for the protection of his grantee, every assurance of it that he has, 
 whether resting in right of action or unbroken covenant, so that if before enforc- 
 ing 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 be 
 presumed that he intends to confer on his grantee the benefit of the covenant, so 
 far as necessary for his protection, that is, that he intends to pass all his right to 
 sue for the breach, so far as the grantee sustains injury by reason of it." In 
 Lowrey v. Tilleny, 31 Minn, 500, 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 per- 
 sonal representative, and not the heir.
 
 268 MARKETABLE TITLE TO REAL ESTATE. 
 
 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 commends itself to the 
 mind as both equitable and expedient. 1 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, having 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 pro- 
 vide in substance that the grantee of a covenant shall have the 
 benefit of a covenant of seisin or against incumbrances contained in 
 the conveyance to his grantor. 2 The same effect has been given to 
 
 1 4 Kent Com. 471, the learned author saying that it is to be regretted that 
 the "technical acruple" that a chose inaction was not assignable does necessa- 
 rily 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. 
 
 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 of a cove- 
 nant of seisin passes to a subsequent grantee of the premises. Schofield v. 
 Homestead Co.. 32 Iowa, 317; 7 Am. Rep. 197. Allen v. Little, 36 Me. 175; 
 Stowell v. Bennett, 34 Me. 422. But the statute in Maine provides that the sub- 
 sequent grantee must first execute a release to his grantor before he can sue on 
 the covenant of the original grantor. Prescott v. Hobbs, 30 Me. 345; Rev. St. 
 Me. 1883, p. 697. See, also, Rev. St. Colo. p. 172; 2 Lev. Rev. Code Dak. p. 
 917; Hitt. Codes Cal. 1876, p. 74a Code Ga. 1882, p. 672.
 
 OF THE COVENANT FOR SEISIN. 269 
 
 the generally prevalent statutory provision that all actions mast be 
 maintained in the name of the real party in interest. 1 
 
 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. 2 For 
 this purpose a conveyance of the land will be treated as an assign- 
 ment of the co venan tee's right of action for a breach of the covenant 8 
 This remedy, however, is cumbrous and unwieldy and has been 
 rendered obsolete in many of the States by a provision of the Code 
 that every action shall be brought in the name of the real party in 
 interest. But for the foregoing reasons, and the fact that a cove- 
 nant of warranty is almost invariably inserted in conveyances of 
 land, it is probable 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 
 
 1 Code Civil Proc. N. Y. 449. Andrew v. Appel. 22 Hun (N. Y.), 483, the 
 court saying: " The objection existing at common law that a covenant or chose 
 in action was not assignable has been obviated by modern legislation." 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 the covenant 
 for a breach thereof. Ernst v. Parsons, 54 How. Pr. (1S T . Y.) 163; Roberts v. 
 Levy, 3 Abb. Pr. (N. S.) 339. 
 
 9 Clark v. Swift, 3 Met. (Mass.) 395, the court saying : " As to the rule in ques- 
 tion it interposes a formal difficulty only; and it is no actual obstruction 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 bona 
 fide and for valuable consideration, and will allow the assignee to maintain nn 
 action in the name of the assignor." Peters v. Bowman, 98 U. S. 59. Collier v. 
 Gamble, 10 Mo. 467. 
 
 "Rawle Covt. 226. "The transfer of the land, the principal thing, should 
 b< held to imply in equity an assignment of all remedies under the covenant for 
 a breach thereof. Ernst v. Parsons, 54 How. Pr. (N. Y.) 163; Roberts v. Levy, 
 3 Abb. Pr. (N. S.)
 
 270 MARKETABLE TITLE TO REAL ESTATE. 
 
 subsequent grantor the benefit of the covenant. 1 The cases which 
 establish this position, proceed upon the principle that the covenant 
 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 consequently 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 cove- 
 nant from the time the covenant was made ; that is when the deed 
 containing the covenant was delivered. 2 This follows necessarily 
 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 
 covenantee or liis 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 the breach has been sustained.* 
 
 115. Conflict of laws. At common law the covenantee might 
 
 1 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. Dickflon 
 v. Desire, 23 Mo. 162, overruling Chauvin v. Wagner, 18 Mo. 531. Shankle 
 v. Ingram, 133 N. 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. 1 74, 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 cannot pass to an assignee upon any subsequent 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 pos- 
 session 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 prop- 
 erty according to the terms of the sale, the covenant runs with the land, and 
 passes from party to party, until the paramount title resultsln some damage 
 to the actual possession, and then the right of action upon the covenant rests 
 in the party upon whom the loss falls." 
 
 'Jenkins v. Hopkins, 9 Pick. (Mass.) 542. Bratton v. Guy, 12 S. Car. 42. 
 
 White T. Stevens, 13 Mo. App. 240. Foshay v. Shafer, 116 Iowa 302; 89 
 N. W. 1106.
 
 OF THE COVENANT FOR SEISIN. 271 
 
 maintain an action at law against the covenantor wherever he found 
 him, all actions dependent upon privity of contract being deemed 
 transitory. 1 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 convey- 
 ance 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 common-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 sita? 
 
 116. MEASURE OF DAMAGES. Upon a breach of the cove- 
 nant of seisin, which results in the loss of the estate to the cove- 
 nan tee, the measure of his damages is the value of the estate at the 
 time of the conveyance as fixed by the purchase price agreed 
 upon by the parties, 4 with interest thereon for such time as 
 
 1 Chit. PI. 270; Rawle Cov. (5th ed.) 302. Clarke v. Scudder, 6 Gray (Mass.), 
 122. 
 
 * Worley v. Hineman, (Ind.) 33 N. E. Rep. 260, overruling Fisher v. Parry, C8 
 Ind. 465, where the subject was carefully considered and the rule announced 
 that " whether a deed executed in Indiana, conveying land in another State, con- 
 tains a covenant of seisin that runs with the land, is to be determined by the law 
 of Indiana." See, also to same effect. Oliver v. Loye. 59 Miss. 320; 21 Am. Law 
 Reg. 600. 
 
 Bethell v. Bethell, 92 Ind. 318; S. C., 54 Ind. 428; 23 Am. Rep. 650. 
 
 4 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 cove- 
 nant of warranty. Staats v. Ten Eyck, 3 Caines (N. Y.), Ill; 3 Am. Dec. 254. 
 This is a leading case, but is confined solely to the question of damages where 
 there 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. Fromberger, 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;
 
 272 MARKETABLE TITLE TO REAL ESTATE. 
 
 the covenantee is liable to the real owner for meane profits, 1 
 together with snch necessary costs and expenses as he may have 
 incurred in defending the title. 2 The increased value of the land 
 at the time of the loss of the estate, 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.* 
 
 3 Am. Dec. 81; Caswell v. Wendell, 4 Mass. 108; Sumner 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. batch, 12 Me. 389; Blanchard T. Hoxie, 34 Me. 37; 
 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 Am. 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. T. So. Park 
 Res. Co., (Ky.) 22 S. W. Rep. 314. Dale T. Shively, 8 Kans. 190; Scott T. Morn- 
 ing. 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. MeCol- 
 lister, 10 Ind. 44. Frazer 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 
 bis damages for a breach of the covenant of seisin. 
 
 1 Post, 172. 
 
 * Poat, 173. 
 
 Pitcher v. Livingston, 4 Johns. (N. Y.) 7; 4 Am. Dec. 229, where it was aid 
 by VAX NESS, 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-mat- 
 ter 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 TTLGHMAN, C. J.. were these: " The title of land 
 rests as much within the knowledge of the purchaser as the seller; it depends 
 upon writings which both parties have an equal opportunity of examining. If
 
 OF THE COVENANT FOB SEISIN. 273 
 
 The foregoing rules, it is believed, prevail in every State of the 
 Union. 1 The true consideration of the conveyance may be shown 
 by parol evidence, and the deed may be contradicted in that respect. 8 
 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. 8 
 
 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.* 
 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. 5 Accord- 
 ingly, the rule has been established by numerous decisions that the 
 
 ibe 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. 1 ' These, with Staats v. Ten Eyck, supra, are the leading cases 
 upon the measure of damages for a breach of the covenant of seisin where the 
 covenantee has lost the estate, and they have been followed in every State in 
 which the question has arisen. 
 
 1 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 Mass. 243. In the last-mentioned case, how- 
 ever, the rule was enforced under circumstances involving much hardship. It 
 appeared that the plaintiff purchased the property for $18.67 and took a convey- 
 ance 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, at 
 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 cove- 
 nant 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. 
 
 1 Post, 167. 
 
 'Smith v. Strong, 14 Pick. (Mass.) 128; Byrnes v. Rich, 3 Gray (Mass.), 
 518. 
 
 4 Ante, 5 109. 
 
 * 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. 
 18
 
 274 MARKETABLE TITLE TO REAL ESTATE. 
 
 covenantee 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. 1 But if the premises are in the possession 
 of an adverse claimant at the time of the grant, the covenantee 
 may recover substantial damages, not exceeding the purchase money 
 and interest. 2 Such an adverse possession amounts also to a con- 
 structive eviction and operates a breach of a covenant of warranty. 5 
 If, before suit is brought by the covenantee for a breach of the 
 covenant, the defendant gets in the outstanding title, the plaintiff 
 can recover only nominal damages, for the title so acquired enures 
 to the benefit of the plaintiff. If the paramount title should be 
 gotten in after suit had been commenced, a different rule would 
 probably apply. 4 
 
 If the covenantee sues and recovers nominal damages for breach 
 of the covenant of seisin, the judgment will be no bar to an action 
 
 1 Baxter v. Bradbury, 20 Me. 260 ; 37 Am. Dec. 49. Sable v. Brockmeier, 45 
 Minn. 248; 47 N. W. Rep. 794; Ogden v. Ball, 38 Minn. 237; 36 N. W. Rep. 
 344. Garfield 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 N. W. Rep. 
 503. Collier v. Gamble, 10 Mo. 467, 472 ; Bircher v. Watkins, 13 Mo. 521 ; Cock- 
 i-cll v. Proctor, 65 Mo. 41; Holladay v. Menifee, 30 Mo. App. 207. Egan y. 
 Martin, 71 Mo. App. 60; 79 Mo. App. 676. Metz v. McAvoy Brewing Co., 98 
 111. App. 584; Building Co. v. Fray, 96 Va. 559; 32 S. E. 58. 'Small v. Reeves, 
 14 Ind. 164; Hacker v. Blake, 17 Ind. 97; Lacey v. Marman, 37 Ind. 168; 
 Hannah v. Shields, 34 Ind. 272; Stevens v. Evans, 30 Ind. 39; McClerkin v. 
 Sutton, 29 Ind. 407; Van Nest v. Kellum, 15 Ind. 264; Jordan v. Blackmore, 
 20 Ind. 419. O'Meara v. McDaniel, 49 Kans. 685; 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 Kan*. 
 App. 180; 45 Pac. 950.) In the early case of Harris v. Newell, 8 Mass. 622, 
 it was held that if the covenantee had been threatened with eviction, and if 
 it appear that he must inevitably lose the estate, he may recover the con- 
 sideration money as damages for breach of the covenant of seisin, and tha,t 
 in such a case he could not be required to lie by until he was actually evicted; 
 the covenantor might in the meanwhile become insolvent, and the remedy on 
 the covenant be lost. This decision does not appear to have been followed, 
 though, as we shall see, there is a class of cases which decide that, under 
 such circumstances, the covenantee may detain the unpaid purchase money, 
 if any. Post, 331. It seems that the purchaser is permitted, in Michigan, 
 to recover the purchase-money paid, in case of a breach of the covenant of 
 seisin, though he has not been disturbed in the possession of the premises. 
 Parkinson v. Woulds, 125 Mich. 325; 84 N. W. 292. 
 
 2 Adkins v. Tomlinson, 121 Mo. 487. This rule, of course, would not obtain 
 in those States in which a sale and conveyance by the vendor when out of 
 possession is deemed champertous. 
 
 Post, 146. 
 
 'Sayre v. Sheffield Land Co., (Ala.) 18 So. Rep. 101. As to the right of
 
 OF THE COVENANT FOR SEISIN. 275 
 
 for breach of the covenant of warranty if he should be afterwards 
 evicted by the person having the better title. 1 
 
 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 en- 
 title himself to recover substantial damages for the breach of the 
 covenant to the extent of the amount so paid, with interest, pro- 
 vided it do not exceed the consideration money and interest. 2 This 
 rule has been criticised upon the ground that it confounds all dis- 
 tinctions between the covenant of seisin and the covenant of war- 
 ranty. 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 cove- 
 nantee 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. 3 
 If it appear that title to a part of the land has failed, the plaintiff 
 will be entitled to nominal damages, though there be no evidence as 
 to the value of such part. 4 Where he is entitled to substantial dam- 
 ages 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, bears to the whole of 
 the premises, 6 unless the contract fixed a price per acre, in which 
 case the measure of damages is the contract price of the number 
 of acres lost. 6 
 
 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, 
 
 the covenantor to require the covenantee to accept such title in lieu of dam- 
 ages, see, post, "Estoppel," 215. 
 
 'Donnell v. Thompson, 10 Me. 170; 25 Am. Dec. 216. Ogden v. Ball, 40 
 Minn. 94: 41 N. W. Rep. 453. 
 
 'Lawless v. Collier, 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. 
 
 'Tanner v. Livingston, 12 Wend. (N. Y.) 83. Pinkston v. Huie, 9 Ala. 
 252, 259. Post, 170. 
 
 Lawless v. Evans, (Tex.) 14 S. W. Rep. 1019. 
 
 McLennan v. Prentice, (Wis.) 55 N. W. Rep. 764. 
 
 Conklin v. Hancock, 67 Ohio St. 455; 66 N. E. 518.
 
 276 MARKETABLE TITLE TO REAL ESTATE. 
 
 and that the consideration paid was merely for the land without 
 the minerals. 1 
 
 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 covenant 
 requires ; 2 but there is a conflict of authority upon the point, 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.* 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 
 
 1 Lloyd v. Sandusky, 203 111. 621; 68 N. E. 154. 
 
 1 Bradshaw's Case, 9 Coke R. 60. Abbott v. Allen, 14 Johns. (N. Y.) 248; 
 7 Am. Dec. 554. Bircher v. Watkins, 13 Mo. 521; Cockrell v. Proctor, 65 Mo. 
 41. Beckmann v. Hcnn, 17 Wis. 412; Eaton v. Lyman, 30 Wis. 41; McClennan 
 v. Prentice, 77 Wis. 124; 45 N. W. Rep. 943. Swafford v. Whipple, 3 Gr. 
 (lo.) 261; 54 Am. Dec. 498; Schofield v. Homestead Co., 32 Iowa, 317; 7 
 Am. Rep. 197; Blackshire v. Homestead Co., 39 Iowa, 624; Barker v. Kuhn, 
 38 lo-wa, 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 re- 
 tained the evidences of his title, and, consequently, that the facts constitut- 
 ing 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. New- 
 combe, 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, gen- 
 erally, 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. 
 
 'Ingalls v. Eaton, 25 Mich. 32, the court, by COOLEY, J., saying: "Where 
 parties contract concerning lands on the assumption that one of them is the 
 owner, it is a reasonable presumption that they have first satisfied them- 
 selves by inquiry what the title is; and if a defect comes to their knowledge 
 afterwards, the party complaining of it should point it out." The decision 
 was also rested larprely 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 was 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. Landt 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
 
 OF THE COVENANT FOE SEISIN. 277 
 
 words of the covenant. 1 When the purchaser obtains an injunction 
 against the collection of purchase money due by him, the burden is 
 on him to show that the title is bad. 2 So, also, in an action for the 
 purchase money in which he sets up the defense of failure of title. 8 
 So long as the parties are allowed to arrive at an issue by merely af- 
 firming 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 incum- 
 brance constituting the breach and prove its existence. But with 
 respect to an action for breach of the covenant of seisin, it may bo 
 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 particular facts, 
 and to rule arbitrarily from this form of pleading that the burden 
 of proof was upon the one party or the other would be in some cases 
 to require the defendant, and in others the plaintiff, to prove a ne- 
 gative ; 4 that is, the non-existence of a particular fact. A solution of 
 
 Civil Procedure of that State, providing that issue might be joined by service 
 of an answer to the complaint, dispensing witli 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. 
 
 '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, 
 20 Me. 251. Bacon v. Lincoln, 4 Cush. (Mass.) 212; 50 Am. Dec. 765. But 
 as such an averment is no more in effect than an allegation that the de- 
 fendant was not seised as he had covenanted, these decisions would seem to 
 fall within the observation of Mr. Greenleaf that in disposing the burden of 
 proof regard must be had to the substance and effect of the issue rather than 
 to the form of u; 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. Ev. (Redf. ed.) 74. 
 
 'Grantland v. Wight, 5 Munf. (Va.) 295. Lewis v. Bibb, Port. (Ala.) 84. 
 
 Stokely v. Trout, 3 Watts (Pa.), 163. Sawyer v. Vaughan. 25 Me. 337. 
 Breithaupt v. Thurmond, 3 Rich. (S. C.) 216. Zerfing v. Seelig. 14 S. Dak. 
 203; 85 N. W. 585. 
 
 4 Tkus, if the burden was held to be upon the defendant, grantor, he would, 
 if the objection to the title was the existence of a prior conveyance, be required 
 to prove, negatively, that no such conveyance existed ; and if held to be upon the 
 plaintiff, grantee, and the objection was that the defendant's claim of title by
 
 278 MARKETABLE TITLE TO REAL ESTATE. 
 
 the difficulty would apparently be reached by requiring the plaintift 
 to set out in his pleadings the facts constituting the breach of the 
 covenant, so that the parties might arrive at a specific and well- 
 defined issue of fact, in respect to which the court could have no 
 difficulty in adjusting the burden of proof. 1 
 
 118. PLEADING. At common law, the plaintiff, in alleging a 
 breach of the covenant of seisin, merely negatives the words of the 
 covenant ; it is not necessary that he shall set out in his declaration 
 the facts constituting the breach. 2 The same form of pleading has 
 been held a sufficient compliance with a statutory provision that the 
 plaintiff's complaint shall contain a statement of his cause of action. 3 
 
 descent could not be sustained, the burden would be upon him to show that the 
 defendant, or his predecessor in title, was not the heir; all of which would seem 
 to be in direct contravention of the rule that the burden of proof is upon him 
 who has substantially the affirmative of an issue. These observations are borne 
 out by the case of Wilson v. Parshall, 129 N. Y. 223; 29 K E. Rep. 297. There 
 the plaintiff claimed that the deed under which the defendant (grantor) held was 
 in fact a mortgage and not a conveyance of an indefeasible estate in fee simple, 
 and it was held that the burden devolved on the plaintiff to show not only that 
 the deed was in fact a mortgage, but that it was actually intended as such. 
 
 1 This seems to have been feasible under the common-law system of pro- 
 cedure, by means of the replication and other successive pleadings tending to the 
 production of an issue; but in those States in which the defendant is allowed to 
 join issue by service of an answer to the complaint would be impracticable, unless 
 the plaintiff were required to set out in his complaint the facts constituting the 
 breach of covenant, or to furnish the defendant with such a statement of the 
 particulars of his claim as would enable him to frame his defence. 
 
 1 Abbott v. Allen, 14 Johns. (N. Y.) 252; 7 Am. Dec. 554; Rickert v. Snyder, 9 
 Wend. (N. Y.) 421. Bacon v. Lincoln. 4 Gush. (Mass.) 212; 50 Am. Dec. 765. 
 Floom v. Beard, 8 Blackf. (Ind.) 76; Truster v. Snelson, 29 Ind. 96. Montgomery 
 v. Reid, 69 Me. 513; Blanchard v. Hoxie, 34 Me. 376. Bender v. Fromberger, 
 4 Dall. (Pa.) 438. Pringle v. Witten, 1 Bay (S. C.), 254; 1 Am. Dec. 612. 
 Bircher v. Watkins, 13 Mo. 523. Socum v. Haun, 36 Iowa, 138. Koepke v. 
 Winterfield, 116 Wis. 44; 92 N. W. 437. 
 
 Wooley v. Newcombe, 87 N. Y. 605. The intimation contained in Rawle on 
 Covenants for Title (5th ed.), 64, that in New York and Michigan it is necessary 
 for the plaintiff in an action for breach of covenant of seisin to set out the facts 
 constituting the breach with sufficient particularity to enable the defendant to 
 frame his defense, seems to be scarcely 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 decla- 
 ration was in .precisely the same form, and no question was raised as to its suffi- 
 ciency , the court holding that the burden of proving facts constituting a breach
 
 OF THE COVENANT FOB SEISIN. 279 
 
 The defendant, at common law, having filed a plea of seisin to the 
 declaration, might,, it seems, require the plaintiff to set forth in hig 
 replication the particulars of the breach. 1 Thus, it seems to have 
 been possible at common law to develop by the pleadings the facts 
 conceived 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 suffi- 
 cient 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 
 
 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 scarcely be denied that it would tend greatly to a more rapid and convenient 
 determination of the rights of the parties. As was said in Ingalls v. Eaton, 
 supra, there can be no hardship in requiring the plaintiff to introduce, in the first 
 place, evidence of the defects of which he complains, 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. Hollenbeck, 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. Kitchen, 5 
 Bosw. (N. Y.) 571, under a provision of the Code that the complaint must con- 
 tain a statement of the plaintiff's cause of action. 
 
 1 Marston v. Hobbs, 2 Mass. 433; 3 Am. Dec. 61. "Wooley v. Newcombe, 87 N. 
 if. 605, 612, where it is said that if the common-law system of pleading still pre- 
 vailed in the State of New York, the plaintiff, in replying to the plea of seisin, 
 would doubtless be required to state, as in other actions on covenants, the par- 
 ticulars of the breach, and thus assume the affirmative. For instances in which 
 the plaintiff set out the facts constituting the breach, see Sedgewick v. Hollen- 
 beck, 7 Johns. (N. Y.) 380; Kennedy v. Newman, 1 Sandf. (N. Y. S. C.) 187, and 
 the comments on that casein Potter v. Kitchen, 5 Bosw. (N. Y. S. C.) 566. 
 
 * Wooley v. Newcombe, 87 N. Y. 605, 612, the court saying: " The allegations 
 that the defendant was not the true owner, and was not seised of the premises in 
 fee, were allegations of matters of fact. It was not necessary to the sufficiency 
 of the complaint that the title should be set out in detail. If the particulars of 
 the defects complained of are required to enable the defendant to defend, they 
 must be obtained in some of the modes provided by the Code."
 
 CHAPTER XIII. 
 
 COVENANT AGAINST INCUMBRANCES. 
 
 FORM. 119. 
 
 RESTRICTIONS AND EXCEPTIONS. 120. 
 
 Parol agreements. 121. 
 
 Conveyance " sudject to " incumbrance. 121-a. 
 WHAT CONSTITUTES BBEACH. 122. 
 
 Definition of incumbrance. 123. 
 
 Pecuniary charges and liens. Effect of notice. 124. 
 
 Outstanding interest less than a fee. 125. 
 
 Easements or physical iucumbrances. 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 PBOOF. 133. 
 
 119. FORM AND EFFECT. The covenant against incum- 
 brances as used in America is either general, namely, "that the 
 premises are free from incumbrances," 1 or special, " that the prem- 
 ises are free from incumbrances done, suffered or committed by " 
 the grantor. 2 In England this covenant is usually expressed as a 
 part of the covenant for quiet enjoyment, namely, that the grantor 
 
 'Rawle Covts. for Title (5th ed.), p. 29, n. The court will supply mere 
 clerical omissions in the covenant, such as the word " himself " in the clause 
 "for himself, his heirs," etc. Judd v. Randall, 36 Minn. 12; 29 N. W. Rep. 
 589. Stanley v. Goodrich, 18 Wis. 505; Hilmert v. Christian, 29 Wis. 104. 
 Smith v. Lloyd, 29 Mich. 382. Contra, Bowne v. Wolcott, (N. Dak.) 48 N. W, 
 Rep. 426, citing Rufner v. McConnell, 14 111. 168; Thayer v. Palmer, 86 111. 
 477, and saying that the remedy of the grantee is in equity if the omission was 
 by mistake. A covenant to warrant and defend " against all persons whomso- 
 ever, and all claims whatsoever," is a covenant against incumbrances as well 
 as a covenant of warranty. Incumbrances are claims, and a covenant against 
 all " claims " will include incumbrances. Johnson v. Hollensworth, 48 
 Mich. 140. 
 
 2 Where the covenant against incumbrances is special, the grantor cannot, of 
 course, be held liable for incumbrances not created by himself, e. g., taxes 
 assessed upon the property before he became owner. Jackson v. Sassaman, 29 
 Pa. St. 106. But taxes paid by the grantor constitutes a breach of the cov-
 
 COVENANT AGAINST INCUMBRANCES. 281 
 
 shall quietly enjoy the premises, " and that free from inourn- 
 brances." JEn some of the States the covenant of general warranty 
 is construed to include a covenant against incumbrances, 3 and in 
 other States the latter covenant is by statute implied from the use 
 of the words " grant, bargain and sell " 4 in the granting part of a 
 conveyance. Such a covenant so implied is not limited or re- 
 strained by an express covenant of special warranty contained in 
 the same deed. 5 
 
 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 
 
 enant against incumbrances created by himself. Milot v. Reed, (Mont.) 29 
 Pac. Rep. 343. The covenant against incumbrances implied from the words 
 " grant, bargain and sell," covers taxes due by the covenantor's grantor, as 
 well as those due by the covenantor himself. Shaffer v. Greer, 87 Pa. St. 370; 
 Large v. McLain, (Pa. St.) 7 Atl. Rep. 101. Taxes assessed upon the premises 
 after a conveyance by a prior owner constitute no breach of a covenant against 
 any claim or demand of any person claiming by, through or under such prior 
 owner. West v. Spaulding, 11 Met. (Mass.) 556. Where a widow and sole 
 heir of an intestate quit claimed their interest in a part of his realty, coven- 
 anting that if any claim against the estate should not be paid and should 
 become a lien on the premises, they would pay it, it was held that a right of 
 way across the premises was not within the meaning of this covenant. Marsh 
 v. Fish, 66 Vt. 213. 
 
 Jeter v. Glenn, 9 Rich. L. (S. C.) 374. Contra in Virginia, Wash City Sav. 
 Bank v. Thornton, 83 Va. 157; 2 S. E. Rep. 193; and in New York; Boveel 
 v. Lawton, 90 N. Y. 293 ; Hebler v. Brown, 40 N. Y. Supp. 441. 
 
 4 Moseley v. Hunter, 15 Mo. 322. Rotan v. Hays, (Tex. Civ. App.) 77 S. W. 
 654. Warren v. Stoddart, (Idaho) 59 Pac. Rep. 540. In Alabama the 
 words " grant, bargan and sell " imply only a covenant against incum- 
 brances 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 same force and effect as if expressed at full 
 length in the deed. Kent v. Cantrall, 44 Ind. 452; Dalton v. Taliaferro, 101 
 111. App. 592. A statute in the State of Washington provides that the 
 words " convey and warrant " in a deed shall be construed to include a cov- 
 enant against incumbrances. But if the grantor, instead of using the word?, 
 insert the usual formal covenant of warranty, such covenant will not be 
 construed to include a covenant against incumbrances. Leddy v. Enos. 
 (Wash.) 33 Pac. Rep. 508. 
 
 "Funk v. Voneida, 1 1 S. & R. (Pa.) 109; 14 Am. Dec. 617.
 
 282 MARKETABLE TITLE TO BEAL ESTATE. 
 
 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.* 
 
 If the covenant be by several persons it will be construed to 
 extend to several as well as joint incumbrances. 7 
 
 120. RESTRICTIONS AND EXCEPTIONS. The covenant 
 against incumbrances may, of course, be restricted to some particu- 
 lar incumbrance, or to the acts of some particluar person, or a 
 particular incumbrance may be excepted from the operation of the 
 
 Lethridge v. Mytton, 2 B. & Ad. 772. Here the covenant was to discharge 
 incumbrances on the granted premises tg 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, 
 hov/ever, 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 X. Y. 92. But see Aberdeen v. Blackmar, 6 Hill (N. 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. Xiles, 16 Me. 
 280, obiter, the incumbrance having been actually enforced against the cov- 
 cnantee. Gennings v. Norton, 35 Me. 309, action on bond by grantor to 
 indemnify against a particular incumbrance. Hartley v. Gregory, 9 Neb. 279. 
 Mr. Rawle (Covts. for Title [5th ed], 74) cites several cases to the propo- 
 sition in the text, which, upon examination, appear to have been actions 
 upon agreements by the grantee to discharge an incumbrance out of the pur- 
 chase 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 incumbrance 
 is in substance a failure to pay part of the purchase money. Such a delin- 
 quency would appear to require a sterner rule of damages than one in which 
 the grantor had failed to provide an indeminty against a loss which had not 
 as yet occurred. Mr. Sedgwiek 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 ia 
 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. 
 (X. Y.) 452: 24 Am. Dec. 39. But where the obligation is that the party 
 indemnified shall not sustain damage or molestation by reason of the acts or 
 omissions of another or by reason of any liability incurred through such acts 
 or omissions, there is no breach until actual damage is sustained. Gilbert v. 
 Wyman, 1 Comst. (X. 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 N. W. Rep. 656. 
 T Duval v. Craig, 2 Wh. (U. S.) 45.
 
 COVENANT AGAINST INCUMBKAXCES. 283 
 
 covenant. 8 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. 9 
 
 121. Parol agreements. It may be stated, as a general rule, 
 that where a conveyance containing a covenant against iucum- 
 brances has been executed by the seller and accepted by the pur- 
 chaser, evidence of any contemporaneous parol agreement that 
 such covenant should not extend to a particular incumbrance, or 
 that the grantee should assume and pa^ off a particular incum- 
 brance embraced by the covenant, will not be received in an action 
 for the breach of such covenant. 10 IsTor will such evidence be re- 
 ceived, where the conveyance was without covenants for title, to 
 show that the grantor orally agreed to discharge and pay off an in- 
 
 'In Duroe v. Evans, 101 (Iowa) 358; 70 N. W. 610, the deed, after reciting 
 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 per- 
 sons, followed by the written words " in, through, or by us." It was held that 
 the special warranty did not limit the general covenant against incumbrances, 
 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 case in 
 which the covenant excepted a mortgage for a named sum, and it appeared 
 that there were two mortgages instead of one, the two aggregating that sum, 
 it was held that the covenant excepted both mortgages. Baker v. Bradt, 168 
 Mass. 58 ; 46 N. E. 409. 
 
 In Smith v. Abington Sav. Bank, 165 Mass. 285; 42 N. 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 was liable on his covenant for 
 such assessment. The court said the exception indicated the common annual 
 taxes for a particular year and nothing else, and it was immaterial that the 
 power to levy the sewer assessment falls under the general power of taxation. 
 
 10 Buckner v. Street, 5 McCrary (C. C.) , 59. Raymond v. Raymond, 10 Cush. 
 (Mass.) 141; Howe v. Walker, 4 Gray (Mass.), 318; Button v. Gerish, 9 Cush. 
 (Mass.) 94; 55 Am. Dec. 45; Flynn v. Bourneuf, 143 Mass. 277; 58 Am. Rep. 
 1S5; Simanovich v. Wood, 145 Mass. 180; 13 N. E. Rep. 391. Suydam v.
 
 284 MARKETABLE TITLE TO KEAL ESTATE. 
 
 cumbrance upon the premises. 11 Such a case is not within tiie rule 
 which permits the true consideration of a written agreement to be 
 shown by parol. But where the conveyance was " subject to mort- 
 gage " parol evidence was admitted to show that the grantee as- 
 sumed payment of the mortgage ; in such case the evidence is ad- 
 mitted, not as supplying a new term of the contract, but as ex- 
 planatory of a doubtful expression employed by the parties. 12 And 
 parol evidence will be received to show that the grantee was, in 
 fact, indemnified against a particular incumbrance, as where other 
 land had been conveyed to him in satisfaction of an existing mort- 
 gage on the premises. 18 Modifications of the foregoing general rule 
 have been announced in several cases, which are difficult to be rec- 
 onciled with that rule. Thus it has been said that parol evidence 
 will be received, not to contradict the terms of a written warranty, 
 but to show that the propery 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. 14 The rule excluding parol evidence to show 
 an exception from a covenant against incumbrances does not apply 
 
 .Tones, 10 Wend. (N. Y.) 185; 25 Am. Dec. 552. Johnson v. Walton, 60 Iowa, 
 315; 14 N. W. Rep. 325. Edwards v. Clark, 83 Mich. 246; 47 X. W. Rep. 112. 
 Bingham v. Bingham, 57 Tex. 238. McKennan v. Doughman. 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. 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. 
 
 "Howe v. Walker, 4 Gray (Mass.), 318. Duncan v. Blair, 5 Den. (N. Y.) 
 196. McLeod v. Skiles, 81 Mo. 595. 
 
 "Aufricht v. Northrup, 20 Iowa, 61. 
 
 "Johnston v. Markle Paper Co., 153 Pa. St. 189; 25 All. Rep. 560. 
 
 "Sidders v. Riley, 22 111. 110, diet., citing Allen v. Lee, 1 Ind. 58: 48. Am. 
 Dec. 352. Leland v. Stone, 10 Mass. 459. Pitman v. Connor. 27 Ind. 337. It is 
 submitted, with diffidence, that such evidence does contradict the warranty. 
 Leland v. Stone was a case of mistake in omitting the exception. This case
 
 COVENANT AGAINST INCUMBEANCES. 285 
 
 to cases of fraud 15 or mistake. 16 But the fraud or mistake com- 
 plained of must, of course, be such as caused the omission of the 
 true agreement of the parties from the conveyance, such as a fraud- 
 ulent representation that the insertion of the exception was un- 
 necessary, or that the instrument, in fact, contained the exception, 
 or other fraud of a like kind. It could hardly be contended that 
 either party was guilty of fraud in taking advantage of an inad- 
 vertent omission of a part of their agreement from the instrument." 
 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. 18 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 
 
 of Sidders v. Riley has been criticized by Mr. Rawle (Covts. for Title [Sthed.l, 
 p. 113). Such, however, seems to be the established rule in Indiana. Maria 
 v. lies, (Ind.) 30 N. E. Rep. 152; Hendrick v. Wisehart, 57 Ind. 129; McDill 
 v. Gunn, 43 Ind. 315; Fitzer v. Fitzer, 29 Ind. 468. 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, 269. 
 
 " Buckner v. Street, 5 McCrary (U. S.), 59. 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 is not merged in a covenant against incumbrances. Sargent 
 v. Gutterson, 13 N. H. 473. See post, 270. Taylor v. Gilman, 25 Vt, 413. 
 Here the incumbrance complained of was a right in a railroad company to 
 lake gravel and earth from the granted premises. It appeared that the parties 
 had divided between themselves the damages that were to be paid by the com- 
 pany, and had expressly agreed that the covenant should not embrace that 
 incumbrance, and it was considered that to enforce the covenant would be to 
 nsist the grantee in a fraud. It is not easy to draw a distinction in principle 
 between this case and any other in which, for a valuable consideration, it was 
 nsrre^d that the covenant should not extend to a particular incurabrance, and 
 in which the parties failed to insert the exception in the deed. 
 
 "Haire v. Baker, 1 Seld. (N. Y.) 361. The fraud or mistake may, of course, 
 ln> shown in equity, and in equitable defenses at law, very generally permitted 
 ly statute throughout the American States. 
 
 "See the remarks of the court in Collingwood v. Irwin, 3 Watts (Pa.), 306. 
 
 "Jones Mortg. 748; Rawle Covts. for Title (5th ed.), 88.
 
 286 MARKETABLE TITLE TO REAL ESTATE. 
 
 incumbrance, except for his own protection. 19 The statement that 
 the deed is made " subject to " designated incumbrances is often 
 made merely for the purpose of preventing a breach of the covenant 
 against incumbrances, and not for the purpose of charging the 
 grantee with the incumbrance. 20 If, however, the intention of the 
 parties that the grantee should discharge incumbrances in part pay- 
 ment of the purchase money appears from the whole instrument, 
 though not expressed in so many words, it will be enforced. 21 Parol 
 evidence will be received to show that a grantee taking " subject 
 to " an incumbrance was by his contract obliged to pay off and dis- 
 charge the same as part of the consideration. 22 But, while a con- 
 veyance " 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 incum- 
 brance upon his covenant against incumbrances. 23 That expression 
 is sufficient as a special exception from the operation of the cove- 
 nant. 24 And where there has been such an exception the covenant 
 
 "Jones Mortg. 748. Drury v. Tremont Imp. Co., 13 Allen (Mass.), 171. 
 Belmont v. Coman, 22 N. Y. 438. Strohauer v. Voltz, 42 Mich. 444. Johnson 
 v. Monell, 13 Iowa, 300; Aufricht v. Northrup, 20 Iowa, 61. Livingston Bank 
 v. Sailing, 66 Neb. 180; 92 N. 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 purchase 
 price, is not admissible for the purpose of showing that he assumed the pay- 
 ment 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 in- 
 cumbrance 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. 
 
 24 Van Winkle v. Earl, 26 N. J. Eq., 242. Barnett v. Keehn, 67 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 incumbrance. Skinner v. 
 Starner, 24 Pa. St. 123. A recital in a deed that " a portion of the above- 
 described premises was set off on execution by A. against B. and 
 this conveyance is made subject to the incumbrance of said execution," ex- 
 cepts such incumbrance from the grantor's covenants. Shears v. Dusenbury, 
 13 Gray. (Mass.), 292. 
 
 * Aufricht v. Northrup, 20 Iowa, 61. Gill v. Ferrin, 71 N. H. 421; 52 Atl. 
 558. 
 
 * Freeman v. Foster, 55 Me. 508. Jackson v. Hoffman, 9 Cow. (N. Y.) 
 271; Walther v. Briggs, 69 Minn. 98; 71 N. W. 909: Hopper v. Smyser, 90 
 Md. 363 ; 45 Atl. 206. Van Winkle v. Earl, 26 N. J. Eq. 242. 
 
 " Freeman v. Foster, 55 Me. 508.
 
 COVENANT AGAINST INCUMBKANCES. 287 
 
 will not of course be broken by the existence of the excepted in- 
 cumbrance. 25 Xor will the grantee be permitted to assign as a 
 breach of the covenant against incumbrances a mortgage which he 
 himself, for an adequate consideration, had undertaken to dis- 
 charge. 26 But if a particular incumbrance of a named amount be 
 excepted from the operation of the covenant, the mention of such 
 amount will not be treated as mere matter of description ; it will be 
 held a guaranty that the sum mentioned constitutes the whole 
 amount of the incumbrance, and the covenant will be broken if the 
 incumbrance exceed that amount. 27 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, main- 
 tain an action for breach of the covenant, if the vendor failed to 
 satisfy the incumbrances, or to redeem the land if sold there- 
 under. 28 An agreement by the grantee to assume payment of an in- 
 cumbrance 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. 29 In Massachusetts 
 it is settled that if a conveyance contain a covenant against in- 
 cumbrances, 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 ex- 
 cepted incumbrance, if enforced, will Constitute a breach of the 
 covenant of warranty. 30 This rule, however, has been thus qualified 
 in that State, namely, that if the granting part of the deed describe 
 
 "Foster v. Woods, 16 Mass. 116. 
 
 Watts v. Wellman, 2 N. H. 458. Reid v. Sycks, 27 Ohio St. 285. 
 
 " Smith v. Lloyd, 29 Mich. 382. Potter v. Taylor, 6 Vt. 676. 
 
 "Sherwood v. Wilkins, (Minn.) 52 N. W. Rep. 394. 
 
 " 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. Copeland 
 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 pur- 
 chaser contained in the contract of sale to pay an incumbrance, is not merged 
 in a conveyance of the land with covenants for title. 
 
 "Estabrook v. Smith, 6 Gray (Mass.), 572. Tt 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
 
 288 MARKETABLE -TITLE TO REAL ESTATE. 
 
 the premises as subject to an incumbrance, a covenant of war- 
 ranty following thereafter will be limited precisely to what pur- 
 ported to be conveyed that is the land, subject to the iucum- 
 brance. 31 And further, that the exception of a particular incurn- 
 brance will not be controlled by a subsequent covenant of warranty, 
 if the deed recites that the grantee assumes and agrees to pay the 
 excepted incumbrance. 32 
 
 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 mav be discharged. Hence the grantor is not 
 
 / CJ O 
 
 liable on his covenant for the interest accrued on the mortgage at 
 the time of the conveyance. 33 On the other' hand, it has been held 
 that an exception of an incumbrance, payment of which was as- 
 sumed 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. 34 
 
 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. 35 
 
 criticized by Mr. Rawle (Covt*. 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. Eep. 519. Sandwich Manfg. Co. v. Zellman, (Minn.) 
 51 N. W. Kep. 379. 
 
 "Brown v. Bank, 148 Mass. 300; 10 X. E. Rep. 382; Linton v. Allen, 154 
 Mass. 432; 28 N. 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 his failure to except that incumbrance from his covenant 
 of warranty. Aver v. Brick Co.. (Mass.) 31 N. E. Rep. 717. 
 
 "Lively v. Rice, 150 Mass. 171: 22 N. E. Rep. 888. Keller v. Ashford, 133 
 IT. S. 610. 
 
 ** Bankson v. Lagerlof (Iowa). 75 N. W. 661 ; Laderoute v. Chale, 9 N. Dak. 
 331 ; 83 N. W. 218. 
 
 "Reagle v. Dennis, (Kan. App.) 55 Pac. 469. 
 
 Cleveland Park L. & I Co. v. Campbell, 65 Mo. App. 109.
 
 COVENANT AGAINST INCUMBEANCES. 289 
 
 122. WHAT CONSTITUTES BREACH. A covenant against in- 
 cumbrances, if broken at all, is broken as soon as made. The mere 
 existence of the incumbrance, if it be capable of enforcement, is a 
 breach of the covenant without regard to the probability of its en- 
 forcement, though, as we shall hereafter see, the plaintiff can re- 
 cover no more than nominal damages if he has suffered no incon- 
 venience or loss on account of the incumbrance. 36 The Statute of 
 Limitations runs upon a covenant against incumbrances from the 
 time the deed was made. 37 But a covenant to defend the grantee 
 against a particular incumbrance is not broken by the mere exist- 
 ence 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 incum- 
 brances. 38 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 incumbrance, accompanied by a Us 
 pendens, cannot be held a breach of the covenant since these are 
 mere incidents of the incumbrance. 39 
 
 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. 40 
 
 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. 41 
 
 * 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. 
 
 " Guerin v. Smith, 62 Mich. 369 ; 38 N. W. Rep. 906. 
 
 M Shelton v. Pease, 10 Mo. 473. 
 
 M Monell v. Douglas, 17 N. Y. Supp. 178, not officially reported. 
 40 Johnson v. Nichols, 105 Iowa 122; 74 N. W. 750; Brown v. Bank, 148 
 Mass. 30; 19 N. E. 382. 
 
 41 Bohlcke v. Buchanan, 94 Mo. App. 320 ; aff'd. 68 S. W. Rep. 92. 
 
 19
 
 290 MARKETABLE TITLE TO REAL ESTATE. 
 
 123. Definition of incumbrance. The precise legal defini- 
 tion of the term incumbrance 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 PARSONS : " Every 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." 42 Hereunder all incum- 
 brances 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 are subject. 
 The definition given is satisfactory as to the first two of these 
 classes ; for it it 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 easements, technically " incum- 
 brances " which may be beneficial rather than detrimental to the 
 premises, such, for example, as a railway or a public highway; a 
 fact which, coupled with notice of the existence 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 en- 
 title the purchaser to damage. 43 
 
 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, constitutes 
 a breach of the covenant against incumbrances. It is immaterial 
 whether the purchaser had or had not notice of the incumbrance 
 at the time the conveyance was executed. The right to rescind an 
 
 Prescott v. Trueman, 4 Mass. 627 ; 3 Am. Dec. 249. This definition has been 
 approved by Mr. Greenleaf (2 Ev. 242), and by Mr. Rawle (Covts. for Tittle 
 [5th ed.] 76), who however pertinently adds that the question "what does 
 diminish the value of the land " must sometimes be a matter of doubt, as 
 where the alleged incumbrance consists of a railroad or a public highway, 
 either of which may be a benefit instead of a burden to the land. Definition 
 approved in Herrick v. Moore, 19 Me. 313. Bronson v. Coffin, 108 Mass. 175; 
 11 Am. Rep. 335. Chapman v. Kimball, 7 Neb. 399; Fritz v. Pusey, 31 Minn. 
 368 ; 18 N. W. Rep. 94. Clark v Fisher, 54 Kans. 403 ; 38 Pac. Rep. 493, arid 
 in many other cases. 
 
 "Post, 127.
 
 COVENANT AGAINST INCUMBRANCES. 291 
 
 executory contract and to recover back the purchase 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 importance after a con- 
 veyance with covenants for title has been executed. The purchaser 
 takes the covenant as much for protection against known as 
 against unknown incumbrances, 44 and he is not required to exercise 
 any diligence in ascertaining whether there are incumbrances on 
 the land. 45 The existence of the incumbrance 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. 46 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. 47 
 
 A judgment lien binding the granted premises constitutes, of 
 course, a breach of the covenant against incumbrances. 48 So, also, 
 an attachment, though it be in its nature uncertain and dependent 
 upon the final judgment to be rendered in the action; 49 the lien 
 which it creates remains a continuing security for any judgment 
 that the plaintiff may obtain in the suit. 50 The covenant is also 
 
 ** Dunn v. White, 1 Ala. 645. Worthington v. Curd, 22 Ark. 285. Snyder v. 
 Lane, 10 Ind. 424. Whitten v. Krick, 27 Ind. App. 419; 61 N. E. 593. Town- 
 send 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. Quimby, 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. 
 
 "Edwards v. Clark, 83 Mich. 246; 47 N. W. Rep. 112; Smith v. Lloyd, 29 
 Mich 382. 
 
 "Hall v. Dean, 13 Johns. (N. Y.) 105. 
 
 "Post, 129. 
 
 a Hall v. Dean, 13 Johns. (N. Y. ) 105. A sale of the premises under an execu- 
 tion issued upon a dormant judgment without proceedings to revive, and with- 
 out leave of court, is, nevertheless, a breach of the covenant against incum- 
 brances. A sale of property under a merely voidable execution is valid. Jones 
 V. Davis, 24 Wis. 229. 
 
 Norton v. Babcock, 2 Met. (Mass.) 510; Kelsey v. Remer, 43 Conn. 129; 
 21 Am. Rep. 638. 
 
 80 Johnson v. Collins, 116 Mass. 392.
 
 292 MARKETABLE TITLE TO REAL ESTATE. 
 
 broken by the existence of a mechanic's lien, 51 a vendor's Hen," or a 
 mortgage or deed of trust upon the premises. 63 A mere Us pendens, 
 without evidence that it is well founded, is no incumbrance ; M 
 neither is a tax deed which, though recorded, is for any reason in- 
 sufficient to pass the title. 55 
 
 Taxes and assessments payable by the grantor and levied upon 
 the property conveyed, are a breach of the covenant against incum- 
 brances, especially under statutes which provide that they shall 
 constitute liens on the property taxed or benefited. 56 Where, how- 
 ever, the conveyance made was after the tax had 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 collection, questions have been raised as to whether the grantor 
 or the grantee was properly chargeable therewith. Independent of 
 statutory construction, the general rule, supported by the weight of 
 authority, seems to be that in such a case the tax relates back and 
 becomes a lien as of the time when the assessment roll was made up, 
 or the improvement ordered to be made, and that in such a case the 
 existence of the inchoate tax or assessment operates a breach of the 
 
 "Dyer v. Ladomus, 2 Del. Co. Ct. Rep. (Pa.) 422. Redmon v. Phenix Fire 
 Ins. Co., 51 Wis. 292; 8 N. W. Rep. 226. This was a suit on a fire insurance 
 policy, containing a statement that there was no incumbrance on the premises. 
 The right to file a mechanics' lien at the time of the deed, is also a breach 
 of the covenant. Duffy v. Sharp, 73 Mo. App. 316. 
 
 "McKennan v. Doughman, 1 Pen. & W. (Pa.) 417, semble. 
 
 58 Tufts v. Adams, 8 Pick. (Mass.) 549; Brooks v. Moody, 20 Pick. (Mass.) 
 474. Bean v. Mayo, 5 Greenl. (Me.) 94. Boyd v. Bartlett, 36 Vt. 1. Funk 
 v. Voneida, 11 Serg. & R. (Pa.) 109; 14 Am. Dec. 617. 
 
 "Kley v. Geiger, (Wash.) 30 Pac. Rep. 727. See, also, post, 290, 306. 
 
 *Tibbetts v. Leeson, 148 Mass. 102; 18 N. E. Rep. 679. 
 
 ** Carr v. Dooley, 119 Mass. 294. In fact, the assessment is no lien unless 
 made so by statute. Cooley on Taxation, 305. Cadmus v. Fagan, 47 N. J.L. 549. 
 Taxes constitute breach of covenant against incumbrances. Fuller v. Jillette, 
 9 Biss. (C. C.) 296. Long v. Moler, 5 Ohio St. 271; Craig v. Heis, 30 Ohio 
 St. 550. Cochran v. Guild, 106 Mass. 30; 8 Am. Rep. 296; Hill v. Bacon, 110 
 Mass. 388; Blackie v. Hudson, 117 Mass. 181. Mitchell v. Pillsbury, 5 Wis. 
 407. Richard v. Bent, 59 111. 38 ; 14 Am. Rep. 1 ; Almy v Hunt, 48 111. 45. 
 Shaffer v. Green, 87 Pa. St. 370. Blossom v. Van Court, 34 Mo. 394 ; 97 Am. 
 Dec. 412. Taxes or assessments upon the granted premises payable by the 
 grantor are breaches as well of a covenant against incumbrances created by 
 himself, as of a general covenant against incumbrances. Devine v. Rawle, 
 (Pa. St.) 23 Atl. Rep. 1119. Milot v. Reed, (Mont.) 29 Pac. 343. A better-
 
 COVENANT AGAINST INCUMBEANCES. 293 
 
 grantor's covenant against incumbrances. 57 But where a statute 
 provides that all taxes and assessments shall become liens upon a 
 certain day of the year, a tax or assessment levied or ordered be- 
 fore that day, will not constitute a breach of the covenant, in a 
 deed executed in the interval between the date of the levy and the 
 
 ment tax lawfully assessed, is a breach of the covenant against incumbrances. 
 Foley v. City of Haverhill, 144 Mass. 352; 11 N. E. Rep. 554; Simanovich v. 
 Wood, 145 Mass. 180; 13 N. E. Rep. 391. Smith v. Abington Sav. Bank, 171 
 Mass. 178; 50 N. E. 545. , An unpaid municipal claim 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. Rep. 344. In Ingalls v. Cooke, 
 21 Iowa, 560, it was held that a mortgagor is not Hale for taxes assessed upon 
 the property, after the mortgage was executed, COLE, J., dissenting. This 
 decision is at least, questionale. A mortgage is a mere security for the 
 payment of money, and does not operate a change of title or ownership, 
 (1 Jones Mortg. 11; Rawle Covts. for Title [5th ed.], 218; Stanard v. 
 Eldridge, 16 Johns. [N. Y.] 254), and the duty to pay the taxes would, there- 
 fore, seem to devolve upon the mortgagor, otherwise he might suffer the 
 premises to be sold for taxes, purchase them himself, and acquire the estate 
 discharged of the 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 tax deed for the purpose of cutting off such lien. See Jones v. Davis, 
 24 Wis. 229; Smith v. Lewis, 20 Wis. 350; Bassett v. Welch, 22 Wis. 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 incumbrances, is not an incumbrance for which the grantor is re- 
 sponsible, and such an assessment is, therefore, no breach of the covenant 
 against incumbrances. Spring v. Tongue, 9 Mass. 28; 6 Am. Dec. 21. 
 
 Tax liens are covered by the statutory covenant against incumbrances 
 implied from the words "grant" or "convey." Bullitt v. Coryell, (Tex. 
 Civ. App.) 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. A covenant of "seisin" in a deed is not broken by the exist- 
 ence 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. 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, 106 Mass. 30; 8 Am. Rep. 296. De Peyster v. Murphy, 
 66 N. Y. 622. Sanders v. Brown, 65 Ark. 498; 47 S. W. 461. The liability of 
 the premises to an assessment for the expense of building a sewer, is an in- 
 cumbrance from the time of the order for the construction of the sewer, and 
 is, therefore, a breach of a covenant against incumbrances in a deed delivered
 
 MARKETABLE TITLE TO REAL ESTATE. 
 
 date on which the tax hecame a lien. 58 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 meantime remaining in possession, 
 it was held that the covenant against incumbrances in the deed so 
 
 before the assessment was laid, but after the order was passed. Carr v. 
 Dooley, 119 Mass. 294. In Lafferty v . Milligan, 165 Pa. St. 534; 30 Atl. 
 Rep. 1030, certain street improvements were made under an act afterwards 
 held unconstitutional. A curative act was passed validating the improve- 
 ments, and it was 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 Eaton v. Chesebrough, 
 82 Mich. 214; 46 N. W. Rep. 365, it was held that under a city charter 
 making taxes a lien upon real estate, without fixing a time when such lien 
 shall attach, such taxes become a lien 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 the year 1889 assessed upon a city lot, constituted a breach 
 of a covenant against incumbrances in a conveyance of such lot executed and 
 delivered in the afternoon of the 1st day of July, 1890, in pursuance of a 
 contract of sale 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 consummated tax lien at that time, the covenant was not broken, but this 
 contention 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 ascertained, 
 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 improvement, a cove- 
 nant 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. 
 
 58 Bradley v. Dike, (N. J. Eq.) 32 Atl. Rep. 132. 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. Here- 
 under it was held that an assessment for a street improvement became a lien,
 
 COVENANT AGAINST INCUMBBANCES. 295 
 
 executed, was broken by the lien for taxes which attached on 
 December 31st. The vendor in such case was regarded as practi- 
 cally the owner until the deed was delivered and possession given. 69 
 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 incumbrances contained in a deed 
 executed on March 25, 1897, embraced taxes assessed to the 
 grantor for the fiscal year beginning July 1, 1897. 60 In New 
 York the rule is that until the amount of a tax is acertained and 
 determined in the manner provided by law no lien attaches. 
 Therefore, where an assessment had been made prior to the execu- 
 tion 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 incum- 
 brances. 61 If the vendors pay an assessment made before the sale 
 
 not from the time the improvement was authorized, but from the time the 
 assessment became due and payable, and that a covenant against incum- 
 brances executed in the interim was not broken by such assessment. See, 
 also, Overstreet v. Dobson, 28 Ind. 256. Long v. Moler, 5 Ohio Sa. 272. War- 
 field v. Erdman, 19 Ky. Law R. 1550; 43 S. W. Rep. 708; Everett v. Marston, 
 186 Mo. 587; 85 S. W. Rep. 540. In Everett v. Dilley, (Kans.) 7 Pac. Rep. 
 61, it was said that in the absence of special agreement the law determines 
 which party shall pay taxes accruing while the purchase money remains un- 
 paid, 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 taxes of that year. McClure v. Campbell, (Neb.) 
 40 N. W. Rep. 595. 
 
 "Nungesser v. Hart, 122 Iowa, 647; 98 N. W. Rep. 505. 
 
 "McPike v. Heaton, 131 Cal. 109; 63 Pac. Rep. 179. 
 
 n Lathers v. Keogh, 109 N. Y. 583, distinguishing De Peyster v. Murphy, 66 
 N. Y. 622, and Barlow v. St. Nicholas Bank, 63 N. Y. 399; 20 Am. Rep. 547; 
 McLaughlin v. Miller, 124 N. Y. 510; 26 N. E. Rep. 1104; People v. Gilon, 24 
 Abb. N. C. (N. Y.) 125; 9 N. Y. Supp. 212, 563; S. C., 56 Hun (N. 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. 
 N. C. (N. Y.) 136. Where a statute provides that estimates for a proposed 
 street improvement shall be made from time to time, and the same shall con- 
 stitute 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. Langsdale v. Nicklaus, 38 Ind. 289. The mere entry of land in an
 
 296 MABKETABLE TITLE TO REAL. ESTATE. 
 
 of the property, and such assessment is afterwards set aside as 
 illegal and a new assessment is thereupon made, such reassessment 
 is a breach of the covenant against incumbrances in a deed exe- 
 cuted after the original assessment and before the reassessment. 
 In such case a provision of the city charter that an assessment 
 becomes a lien from the time the assessment roll is placed in the 
 hands of the collector of taxes, fixed the time when payment was 
 due, but not the time when the assessment became an incumbrance 
 as between grantor and grantee. 62 Taxes assessed after the execu- 
 tion 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. 63 
 Taxes are none the less incumbrances in that they constitute a 
 personal liability of the grantor, and may be collected otherwise 
 
 assessment roll does not constitute an incumbrance thereon, and the subse- 
 quent 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 " 
 Avithin 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 the 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. 
 
 "Green v. Tidball, 26 Wash. 338; 67 Pac. Rep. 84. 
 
 "Lathers v. Keogh, T09 N. Y* 583; 17 N. E. Rep. 131.
 
 COVENANT AGAINST INCUMBEANCES. 297 
 
 than by a sale of the land. 64 Nor because they are invalid, if the 
 land be liable to reassessment. 66 Such reassessment will relate 
 back to the entry of the land on the original assessment roll. 66 The 
 grantee, complaining 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. 67 The 
 same evidence 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. 68 If the tax was voluntarily paid by the grantee 
 without previous demand on the grantor, the latter may show that 
 the tax was invalid. 69 
 
 In England, a land tax is not deemed an incumbrance, because it 
 is supposed to have been contemplated by the parties ; and if noth- 
 ing is said upon the subject, the purchaser will take the estate sub- 
 ject to the liability of the tax-. 70 
 
 125. Outstanding estate or interest in the premises. An 
 outstanding estate or interest, less than a fee, 71 in the granted prem- 
 ises is an incumbrance, and, therefore, operates a breach of the 
 
 "Cochran v. Guild, 106 Mass. 29; 8 Am. Rep. 296. The same rule has 
 been 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. 
 
 "Peters v. Meyers, 22 Wis. 602. 
 
 " Coburn v. Litchfield, 134 Mass. 449. Cadmus v. Fagan, 47 N. J. L. 540. 
 
 "Patterson v. Yancey, 81 Mo. 379. Robinson v. Murphy, 33 Ind. 482; 
 Kirkpatrick v. Pearce, 107 Ind. 520. Mitchell v. Pillsbury, 5 Wis. 410. 
 But see Voorhis v. Forsyth, 4 Biss. (C. C.) 409, where it was held unneces- 
 sary to aver that the tax was valid, such being the prima facie presunption. 
 Where A. bought land of B. in a city, B. having previously unlawfully con- 
 nected a sewer on the land with a public sewer, no right so to use the sewer 
 passed by implication, and A. having been compelled to pay the city a fee for 
 connecting the sewer, could not recover the amount thereof on B's. warranty 
 against incumbrances, such fee not being a lien on the premises in favor of 
 the city.* Bumstead v. Cook, 169 Mass. 410; 48 N. E. Rep. 767. 
 
 "Kennedy v. Newman, 1 Sandf. (N. Y. S. C.) 187. 
 
 "Balfour v. Whitman, 89 Mich. 202; 50 N. W. Rep. 744. 
 
 1 Sugd. Vend. (8th Am. ed.) 487. 
 
 n 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.
 
 298 MARKETABLE TITLE TO BEAL ESTATE. 
 
 covenant against incumbrances ; 72 such, for example, as the right in 
 a stranger to enter upon the premises and cut and remove timber 
 therefrom ; 73 or a prior sale of " all the iron and coal " on the 
 granted land, with right of way and privilege of removal. 74 So 
 also an interest in the premises in favor of a third person, who 
 holds as a tenant in common, is an incumbrance. 75 But an adverse 
 equitable claim to the premises is not an incumbrance. 76 The 
 better opinion seems to be that a condition which may work a for- 
 feiture 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, 77 such, for ex- 
 ample, as a provision in the deed that only buildings of a certain 
 kind should be created on the premises conveyed, with reversion 
 to the grantor in case of a breach of the condition. 78 
 
 The covenant against incumbrances is broken by the existence of 
 an outstanding term of years in, or lease of, the granted prem- 
 ises. 79 But where the conveyance is taken with knowledge that the 
 
 "Jenkins v. Buttrick, 1 Met. (Mass.) 480. 
 
 * Spurr v. Andrews, 6 Allen (Mass.), 420. Cathcart v. Bowen, 5 Pa. St. 
 317. Clark v. Ziegler, 79 Ala. 346; 85 Ala. 154; 4 So. Rep. 669. Gates T. 
 Parmly, 93 Wis. 294; 66 N. W. Rep. 253. But in Southwest Va. Min. & L. 
 Go. 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. 
 
 T Stanbaugh v. Smith, 23 Ohio St. 584. 
 
 "Comings v. Little, 24 Pick. (Mass.) 266. 
 
 "Marple v. Scott, 41 111. 50. 
 
 " COOLEY, J., in Post v. Campau, 42 Mich. 90, citing Jenks v. Ward, 4 Mete. 
 (Mass.) 412. A possibility may be an incumbrance. Sir F. Moore's Rep. 249, 
 pi. 393; Haverington's Case, Owen, 6. In Van Rensselaer v. Kearney, 11 
 How. (U. S.) 316, it was contended by counsel, arguendo, 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, 9. In Estabrook v. 
 Smith, 6 Gray (Mass.), 572; 66 Am. Dec. 443, it was held that a condition in 
 a deed that the grantee (plaintiff's vendor) should build a house on the 
 premises within a year from the date of the deed was not an incumbrance. 
 
 "Locke v. Hale, 165 Mass. 20; 42 N. E. Rep. 331. 
 
 T Cross v. Noble, 67 Pa. St. 74, 77 ; Dech's Appeal, 57 Pa. St. 467. Pease v. 
 Christ, 31 N. Y. 141; Giles v. Dugro, 1 Duer (N. Y.), 331. Taylor v. Heitz, 
 87 Mo. 660. Edwards v. Clark, 83 Mich. 246; 47 N. W. Rep. 112. Fritz v. 
 Pusey, 31 Minn. 368; 18 N. W. Rep. 94. Porter v. Bradley, 7 R. I. 538.
 
 COVENANT AGAINST INCUMBRANCES. 299 
 
 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 breach of the 
 covenant; 80 nor, it is apprehended, independently of any statute, 
 where there is an actual attornment by the tenant, or an apportion- 
 ment of the rent between the parties. 81 And generally it may be 
 said that if the purchaser knows that the premises are in the pos- 
 session 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. 82 Nor will the covenant be 
 broken if the purchaser accepts an assignment of the lease ; M nor 
 if the conveyance of the fee be made expressly subject to the lease ; 
 in such a case the rent is an incident to the reversion, and passes 
 with it. 84 An outstanding life estate in a stranger is an iucum- 
 brance. 86 The weight of authority is that the covenant is broken by 
 a claim for dower in the granted premises, whether the right be 
 inchoate and contingent, or consummate by the death of the hus- 
 
 Grice v. Scarborough, 2 Spear L. (S. C.) 649; 42 Am. Dec. 391. Clark v. 
 Fisher, 54 Kans. 403; 38 Pac. Rep. 493; Smith v. Davis, 44 Kans. 362; 24 
 Pac. Rep. 428. Brass v. Vandecar, (Neb.) 96 N. W. Rep. 1035. An outstand- 
 ing lease of the premises is an incumbrance entitling the grantee to damages, 
 if he bought the property for speculation, and the grantor was aware of that 
 purpose. Batchelder v. Sturgis, 3 Cush. (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. 
 
 "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 New 
 Jersey parol evidence is not admissible to vary the effect of the covenant. 
 
 "Rawle Covts. for Title (5th ed.), 78. Haldane v. Sweet, 55 Mich. 196. 
 
 81 Lindley v. Dakin, 13 Ind. 388; Page v. Lashley, 15 Ind. 152. 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. 
 
 "Pease v. Christ, 31 N. Y. 141. Spaulding v. Thompson, 119 Iowa, 484; 
 93 N. W. Rep. 498. 
 
 M Christy v. Ogle, 33 111. 295. Mills v. Catlin, 22 Vt. 98, aemble. See cases 
 cited below.
 
 300 MARKETABLE TITLE TO REAL ESTATE. 
 
 band. 8 * 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. 87 The 
 right of a wife to elect whether she will take dower in lieu of a 
 jointure or settlement, is such an incumbrance on land acquired 
 by the husband after the settlement, as amounts to a breach of a 
 covenant against incumbrances in a subsequent conveyance of the 
 land. 88 The rule that the covenant is broken by the existence of 
 a contingent right of dower in the land conveyed is not changed 
 by statutes which substitute for dower a fee simple or other inter- 
 est in a portion of the husband's lands. 89 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. 90 
 
 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 
 
 "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. 126; Porter v. Noyes, 2 Greenl. 
 (Me.) 27; 11 Am. Dec. 30. Russ v. Perry, 49 N. H. 549; Fitts v. Hoitt, 17 
 N. H. 530. Carter v. Denman, 3 Zab. (N. J. L.) 273. Jones v. Gardiner, 10 
 Johns. (N. Y.) 266. Durrett v. Piper, 58 Mo. 551; Henderson v. Henderson, 
 13 Mo. 151; Walker v. Dearer, 79 Mo. 664; Ward v. Ashbrook, 78 Mo. 515. 
 Contra, dictum of STORY, J. in Powell v. Munson, 3 Mason (C. C.), 355. 
 Nyce v. Obertz, 17 Ohio, 70; Johnson v. Nyce, 17 Ohio, 66; 49 Am. Dec. 444. 
 Hutchins v. Moody, 30 Vt. 658, obiter. Bostwick v. Williams, 36 111. 65, 
 semble; 85 Am. Dec. 385; Humphrey v. Clement, 44 111. 299, dictum. It is 
 now settled in Illinois that an inchoate right of dower is embraced by a 
 covenant against incumbrances. McCord v. Massey, 156 111. 123; 39 N. E. Rep. 
 592; Cowan v. Kane, 211 111. 527; 71 N. E. Rep. 1097; Raftery v. Easelc-y, 
 111 HI. App. 413. In Blevins v. Smith, (Mo.) 16 S. W. Rep. 213, the covo- 
 nantee bought in an inchoate right of dower in the premises, and it was held 
 that he was not entitled to damages, there being no means of computing the 
 value of the interest. THOMAS, J., dissenting. 
 
 " Hudson v. Steare, 9 R. I. 106. 
 
 "Bigelow v. Hubbard, 97 Mass. 195. 
 
 "Crowley v. Lumber Co., 66 Minn. 400; 69 N. W. Rep. 321. 
 
 Raftery v. Easeley, 111 111. App. 413.
 
 COVENANT AGAINST INCUMBRANCES. 301 
 
 against incumbrances. 91 Such, for example, as a private right of 
 uay over the premises; 92 a building restriction running with the 
 land, and binding the covenantee ; 93 an obligation to maintain a di- 
 vision fence; 04 the right in a stranger to maitnain a drain across 
 the warranted land ; 95 the right to conduct water from a spring on 
 
 " See cases cited in the notes below. 
 
 "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 N. 
 E. Rep. 671. Teague v. Whaley, 20 Ind. App. 26; 50 N. E. Rep. 41; Young 
 v. Gower, 88 111. App. 70. 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 en- 
 forcible 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 enjoyment, though the covenantee bought with notice 
 of the easement. Eller v. Moore, 63 N. Y. Supp. 88; 48 App. Div. 403. 
 
 "Roberts v. Levy, 3 Abb. Pr. (N. S.) (N. Y.) 311. Greene v. Creighton, 
 7 R. I. 1. 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 incumbrances, 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 Atl. Rep. 190. 
 Whitney v. Railroad Co., 11 Gray (Mass.), 359; 71 Am. Dec. 715. Building 
 restrictions, and restrictions 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, (N. J. Eq.) 19 Atl. Rep. 190. 
 
 M Kellogg v. Robinson, 6 Vt. 270 ; 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. 277, 62 N. E. Rep. 645. An agreement to 
 maintain a certain fence upon designated premises, recorded so as to bind a 
 subsequent purchaser, constitutes a breach of covenant against incumbrances. 
 Burbank v. Pillsbury, 48 N. H. 475; 97 Am. Dec. 633. But see Parish v. 
 Whitney, 3 Gray (Mass.), 516, where it was held that a covenant to per- 
 petually maintain a division fence, contained in the deed under which the 
 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. 
 
 * Ladd v. Noyes, 137 Mass. 151.
 
 302 MARKETABLE TITLE TO REAL ESTATE. 
 
 the granted premises, through pipes laid beneath the surface; 9 * 
 the right to have the eaves of a building on an adjoining lot over- 
 hang the granted premises, so as to drip water thereon ; 9T the right 
 in an adjoining proprietor to dam up and use the water of a stream 
 running through the granted premises ; 98 the right in a stranger to 
 divert the water from a stream on such premises ;" the right in a 
 stranger to flow the premises with the waters of a mill dam. 1 
 These, and other easements and servitudes, 2 all constitute breaches 
 
 "McMullin v. Wooley, 2 Lans. (N. Y.) 394. Melick v. Cross, 62 N. J. 
 Eq. 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 N. Y. 81. 
 
 "Mitchell v. Warner, 5 Conn. 498, 527, 06. 
 
 1 Craig v. Lewis, 110 Mass. 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, 
 Kutz v. McCune, 22 Wis. 628; 99 Am. Dec. 85. The right of a mill owner to 
 enter on adjoining lands, through which a raceway from the mill passes, for 
 the purpose of cleansing such raceway, is a right necessary to the enjoyment 
 of his easement, which he would have independently of agreement or pre- 
 scription, and is, therefore, not an incumbrance of which a grantee of the 
 premises traversed by the raceway can complain. Prescott v. Williams, 5 
 Met. (Mass.) 433; 39 Am. Dec. 688. As to whether the right in a down- 
 stream mill owner to raise the water in his dam to a height that interferes 
 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 incum- 
 brances. Fitch v. Seymour, 9 Met. (Mass.) 466. 
 
 * The right in an adjoining owner to use a stairway on the granted premises 
 is a breach of the covenant against incumbrances. 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. Gilman, 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 com- 
 pany to appropriate the water in a stream bounding or traversing the prem- 
 ises. 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 adjoin- 
 ing lot, of which he was an owner in common with another. He then sold 
 the house and lot, and afterwards acquired title in severalty to the adjoining 
 lot encroached upon 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 incum- 
 brances in a conveyance by the original owner of the lot encroached upon. 
 Farley v. Howard, 70 N. Y. Supp. 51; 60 App. Div. 193.
 
 COVENANT AGAINST INCUMBRANCES. 303 
 
 of a covenant against incumbrances, 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. 3 If the easement or 
 servitude complained of consist of a mere license, revocable at the 
 will of the licensor, it will not, of course, amount to an. incum- 
 brance, and will, therefore, operate no breach of the covenant. 4 
 
 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 
 incumbrances. 6 So, also, a wall standing wholly on one lot with a 
 right in the adjoining proprietor to use it creates a breach. 6 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. 7 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. 8 In 
 such a case, it is apprehended, that if the purchaser bought with- 
 
 Post, 127. 
 
 4 Patterson v. Sweet, 3 111. App. 550. 
 
 "Giles v. Dugro, 1 Duer (N. Y.), 331. 
 
 Mohr v. Parmelee, 43 N. Y. Super. Ct. 320. 
 
 'Hendricks v. Stark, 37 N. Y. 106; 93 Am. Dec. 949 (distinguished in 
 O'Neill v. Van Tassell, 137 N. Y. 297; 33 N. E. Rep. 314, and Corn v. Bass, 
 59 N. Y. Supp. 315) ; Mohr v. Parmelee, 43 N. Y. Super. Ct. 320. The exist- 
 ence of a party wall on the granted premises is no breach of the covenant 
 against incumbrances, 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. Tobey, 121 Mass. 457; 23 Am. Rep. 283; Savage v. Mason, 3 
 Cush. (Mass.) 500. Burlock v. Peck, 2 Duer (N. Y.), 90. Compare Cole v. 
 Hughes, 54 N. Y. 444; 13 Am. Rep. 611. In Mackey v. Harmon, 34 Minn. 168; 
 24 N. W. Rep. 702, the whole wall was built by H., under an agreement that 
 he should be reimbursed by X., the adjoining owner, if he should afterwards 
 join to the wall. X. conveyed to the plaintiff, who was compelled to pay one- 
 half the cost of the wall in order to build to it, and this was obviously held 
 a breach of the covenant against incumbrances contained in X.'s deed. See, 
 also, Blondeau v. Sheridan, 81 Mo. 545; Keating v. Korfhage, 8? Mo. 524. 
 Burr v. Lamaster, (Neb.) 46 N. W. Rep. 1015. An owner agreed, oy recorded 
 contract, to pay half the cost of a party wall if one should be built so as to 
 be capable of use by him, and he made the prospective half of the cost a
 
 304 MARKETABLE TITLE TO REAL ESTATE. 
 
 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. 9 
 
 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 W 7 as 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. 10 But such an 
 incumbrance in nowise interferes with the present enjoyment and 
 possession of the estate, and is seldom if ever considered in fixing 
 the purchase price of the property, unless the purchaser under- 
 takes to remove it as a part of the consideration. 11 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, 12 a railway, 13 or a canal, a different rule as to the 
 
 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. Rep. 201. 
 
 De Long v. Spring Lake Imp. Co., (N. J. L.) 59 Atl. Rep. 1034. 
 
 10 Ante, cases cited, note 44, p. 291. 
 
 11 Kutz v. McCune, 22 Wis. 628 ; 99 Am. Dec. 85, where it was said that a 
 pecuniaiy incumbrance does not affect the physical condition of the premises. 
 It is a mere incident, and where the purchaser takes a covenant against in- 
 cumbrances, 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. 
 
 12 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 in- 
 cumbrances. The principle is the same in either case. Huyck v. Andrews, 
 113 N. Y. 81; Hymes v. Esty, 116 K Y. 501. Smith v. Hughes, 50 Wis. 620. 
 Scribner v. Holmes, 16 Ind. 142. Butte v. Riffe, 78 Ky. 352. Weller v. Trust 
 Co., 23 Ky. Law R. 1136; 64 S. W. Rep. 843. Lallande v. West, 18 La. Ann.
 
 COVENANT AGAINST INCTJMBEANCES. 305 
 
 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 
 
 290. 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 considera- 
 tion, and to have fixed the price with reference to its supposed advantages or 
 disadvantages. STAPLES, J., in Jordan v. Eve, 31 Grat. (Va.) 1. "To hold 
 that a public road running through a tract of land, which was known to the 
 purchaser at the time of his purchase, is such an incumbrance as would con- 
 stitute a breach of a covenant of warranty against incumbrances, would 
 produce a crop of litigation in this State that would be interminable." Per 
 curiam. Desverges v. Willis, 56 Ga. 515; 21 Am. Rep. 289. 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, SHARSWOOD, C. J., and TURNKEY, J., dissenting. It appeared, how- 
 ever, that the condemnation money had not been paid, and it was intimated 
 that the remedy of the grantee vas against the public authorities. High- 
 way no breach; Smith v. Hughes, 50 Wis. 620. Scribner v. Holmes, 16 
 Ind. 142. An alley known to the purchaser is no incumbrnace. 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 highway be laid 
 out, but not opened, and the purchaser has no actual notice of its existence, he 
 will be entitled to damages. Hymes v. Esty, 116 N. Y. 501. 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 be nothing to charge the purchaser 
 
 13 Smith v. Hughes, 50 Wis. 620. 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 held 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 N. W. Rep. 306. Burke v. Hill, 48 
 Ind. 52; 17 Am. Rep. 731. Farrington v. Tourtellot, 39 Fed. Rep. 738. 
 In Gerald v. Elley, 51 Iowa, 317, it was held that the mere fact that a rail- 
 road company exercises a right of way, is not of itself a breach of the cove- 
 nant against incumbrances. The company may be a trespasser. It must be 
 shown that the right of way has been lawfully acquired. The grantor connot 
 have his covenant against incumbrances 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 was made. Gerald v. Elley, 
 45 Iowa, 322. Of course an unopened railroad right of way will constitute a 
 breach of the covenant against incumbrances. Bruns v. Schreiber, (Minn.) 
 51 N. W. Rep. 120. 
 
 20
 
 306 MABKETABLE TITLE TO REAL ESTATE. 
 
 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 accu- 
 rate and equitable adjustment between 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 
 
 with notice of its existence, the covenant will of course be broken. James v. 
 Warehouse Co., (Ky.) 56 S. W. Rep. 19. Hymes v. Esty, 116 N. Y. 501, the 
 court saying that the rule that a covenant of warranty is not broken by the 
 existence of a public highway through the warranted premises rests upon 
 the presumption arising from the opportunity furnished the purchaser by the 
 apparent existence or use of the highway to take notice of it, and in such 
 case he is charged with knowledge and is 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, actual or constructive, of the 
 existence of a highway or public easement; in such case, where there is a 
 subsequent appropriation for a highway by the public in the exercise of a pre- 
 existing right (the street in this case having been actually laid out and con- 
 demned 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 incumbrances. In the following cases a public highway over 
 the premises has been held a breach of 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, 3 N. H. 335. Of course if the public road 
 ha s been located but not opened, it will be treated as 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 presum- 
 ing that the road was legally laid out, and damages paid to the land owners. 
 Pritchard v. Atkinson, 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 
 1883 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 pre- 
 liminary proceedings to lay out a street in Boston, until a plan is filed. 
 French v. Folsom, 181 Mass. 483; 93 N. E. Rep. 938.
 
 COVENANT AGAINST INCUMBEANCES. 307 
 
 inconvenience it might occasion him, and to have agreed upon the 
 consideration to be paid as the value of the premises with the 
 incumbrance. 14 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 incumbrances 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 
 easement, whether public or private ; 15 in one State, at least, they 
 
 "Patterson v. Arthur, 9 Watts (Pa.), 152. 
 
 "Deacon v. Doyle, 75 Va. 258. Memmert v. McKeen, 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 pro- 
 prietor 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 question, 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 con- 
 trary, 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 open 
 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 bur- 
 den. That being so, the covenants in the deed must likewise be construed with 
 reference to the condition of the property 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 hnd no power or control 
 whatever. To construe the covenant to embrace such subject would most 
 likely defeat the understanding and intention of the parties, certainly of the 
 grantor." Citing Washburn on Easements, 68, and approving Patterson v.
 
 308 MARKETABLE TITLE TO REAL ESTATE. 
 
 are restricted to the single case of a purchase with notice of a 
 public highway through the premises; 16 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 incumbrances. 17 In a recent well- 
 considered case in Pennsylvania 18 it was observed by the court that 
 incumbrances 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. 19 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 
 against them; hence, knowledge, actual or constructive, of their 
 existence is no answer to an action for the breach of such a cove- 
 Arthur, 9 Watts (Pa.), 154. See, also, Newbold v. Peabody Heights Co., 70 
 Md. 493; 17 Atl. Rep. 372. Constructive notice of a building restriction from 
 the record of a deed in which it is contained does not effect the right of a sub- 
 sequent 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, Huyck v. Andrews, 113 N. Y. 81; 20 N. E. Rep. 581, disap- 
 proving Kutz v. McCune and Memmert v. McKeen, supra. 
 
 17 Van Wagner v. Nostrand, 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 
 N. W. Rep. 306. Morgan v. Smith, 19 111. 199. Butler v. Gale, 27 Vt. 739. 
 Watts v. Fletcher, 107 Ind. 391; 8 N. E. Rep. Ill; Burk v. Hill, 48 Ind. 52; 
 17 Am. Rep. 731; Medlar v. Hiatt, 8 Ind. 171; Quick v. Taylor, 113 Ind. 540; 
 16 N. E. Rep. 588. In this case it seems that the right of way had been con- 
 demned but not opened. Teague v. Whaley, 20 Ind. App. 26; 50 N. E. Rep. 
 41; Whiteside v. Magruder, 75 Mo, App. 364, an unopened railway right of 
 way. Foster v. Foster, 62 N. H. 532. See, also, cases cited, ante, this section, 
 to proposition that public highway or railway traversing the premises is 
 breach of covenant against incumbrances. This is true enough, as observed 
 by Mr. Rawle (Covts. for Title [th ed.l, 76, note 3), where the thing com- 
 plained of is really an incumbrance, but loses its application where the ques- 
 tion is whether such thing is in fact an incumbrance. 
 
 "Memmert v. McKeen, 112 Pa. St. 320. 
 
 19 Cathcart v. Bowman, 5 Pa. St. 317; Funk v. Voneida, 11 Serg. & R. (Pa.) 
 109; 14 Am. Dec. 617.
 
 COVENANT AGAINST INCUMBRANCES. 309 
 
 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, 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. 20 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 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 regulated 
 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. Nothing 
 which constitutes part of an estate, or which, as between the parties, 
 is to be regarded as an incident to which the estate is subject, can 
 be considered an incumbrance. 21 And where the owner of two 
 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. 22 
 
 It is suggested, with diffidence, that it is immaterial, so far as the 
 mere question of damages is concerned, whether a highway or other 
 
 * Patterson v. Arthur, 9 Watts (Pa.), 152. 
 
 "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. 
 
 ** Janes v. Jenkins, 34 Md. 1 ; 6 Am. Rep. 300. Seymour v. Lewis. 2 Beas. 
 (N. J.) 439. Harwood v. Benton, 32 Vt. 724.
 
 310 MARKETABLE TITLE TO BEAL ESTATE. 
 
 easement of which the purchaser had notice, shall be considered 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, inconvenience or 
 injury occasioned by the easement. On the other hand, if it ap- 
 pear that the easement is a benefit instead of a burden to the prem- 
 ises, there is no loss or injury to the grantee. 23 In either case it 
 would seem that he could recover only nominal damages for the 
 breach. 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." 
 
 128. ASSIGNABIUTY OF THE COVENANT AGAINST ENCUM- 
 BRANCES. The covenant against incumbrances, like the covenant 
 of seisin, has been generally held in the American States to be an 
 agreement as to the present state of the title, and to be broken ai 
 soon as made, if, at the time of the covenant, there be an incum- 
 brance on the premises, and that, consequently, all rights of actiom 
 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 
 
 , B Hymes v. Esty, 133 N. Y. 342; 31 N. E. Rep. 105. Mr. Rawle concludes 
 that an easement beneficial to the premises cannot be an incumbrance, and, 
 
 , therefore, cannot be a breach, technical or substantial, of the covenant against 
 incumbrances. Also, that parol evidence may be received as to the nature of 
 
 i 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 ques- 
 
 i tion of fact to be determined by the jury upon consideration of all the sur- 
 rounding circumstances, such as 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, 85). But see Eddy T. 
 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- 
 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 deed. 
 
 "Ladue v. Cooper, 67 N. Y. Supp. 319; 32 Misc. Rep. 544.
 
 COVENANT AGAINST INCUMBRANCES. 311 
 
 against incumbrances does not run with the land. 25 This rule does 
 not prevail, however, in many of the States, their courts holding 
 that if the loss resulting from a breach of the covenant fall upon 
 the subsequent grantee, he will have a right of action against the 
 covenantor, upon the ground that the covenant is prospective in its 
 operation, and intended for the security of the title and the in- 
 demnity of him into whose hands the land may pass. 26 A distinc- 
 
 18 See, generally, the cases cited to the proposition that a covenant of seisin 
 <loes not run with the land, , ante, 111. See, also, Lawrence v. Montgomery, 
 37 Cal. 183. Woodward v. Brown, 119 Cal. 283; 51 Pac. Rep. 2, 542. Mc- 
 Pike v. Heaton, 131 Cal. 109; 63 Pac. Rep. 179. Heath v. Whidden, 24 Me. 
 383. Mygatt v. Coe, 124 N. Y. 212; 26 N. E. Rep. 611. Stewart v. Drake, 
 N. J. L. 139; Garrison v. Sandford, 12 N. J. L. 2G1'. Blondeau v. Sheridan, 
 81 Mo. 545. Osborne v. Atkins, 6 Grey (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, (Neb.) 96 N. W. Rep. 1035. 
 In Pearson v. Ford, 1 Kan. App. 580; 42 Pac. 257, the court declined to pass 
 upon the question whether a covenant against incumbrances ran with the 
 land, but held that a general warranty deed executed pending proceedings to 
 foreclose a mortgage on the land, did not give the grantee the right to main- 
 tain an action on an agreement in a deed by his grantee to a third party, con- 
 veying other land by which such third party undertook to discharge the 
 mortgage in question as a part of the consideration for his deed. 
 
 "See cases cited ante, 112, to proposition that covenant of seisin runs 
 with the land. See, also, Cole v. Kimball, 52 Vt. 639. Walker v. Deaver, 5 
 Mo. App. 139; Alexander v. Schreiber, 13 Mo. 271; Winningham v. Pennock, 
 36 Mo. App. 688. Sage v. Jones, 47 Ind. 122. This case holds also that the 
 grantor cannot at the time of conveyance reserve, by parol, the right to re- 
 cover for a breach of the incumbrance. Whitten v. Krick, 31 Ind. App. 577; 
 68 N. E. Rep. 694. Tucker v. McArthur, 103 Ga. 409; 30 S. E. Rep. 283. 
 Taylor v. Lane, 18 Tex. Civ. App. 545; 45 S. W. Rep. 317. Pillsbury v. 
 Mitchell, 5 Wis. 17. Hawthorne v. City Bank, 34 Minn. 382. This rule seems 
 also to have been recognized in Virginia. Wash. City Savings Bank v. 
 Thornton, 83 Va. 157 ; 2 S. E. Rep. 193, dictum, citing Dickinson v. Hoomes, 
 8 Grat. (Va.) 353; Sheffey v. Gardner, 79 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 N. Y. 
 339; 59 N. E. Rep. 993; 82 Am. St. Rep. 659; .Mandigo v. Conway, 90 N. Y. 
 Supp. 324; 45 Misc. 389. In Clarke v. Priest, 47 N. Y. Supp. 489; 21 
 App. Div. 174, the rule was thus stated: If the covenantee has on an alien- 
 ation of the property by him, either rendered himself liable to his grantee by 
 a covenant against incumbrances, 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-
 
 312 MARKETABLE TITLE TO BEAL ESTATE. 
 
 tion has also been made between a covenant " that the land is free 
 from incumbrances," and one that the covenantee " shall quietly 
 enjoy the same, free from incumbrances" it being considered that 
 in this form the covenant is prospective and runs with the land. 27 
 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 re- 
 marks 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. 28 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. 29 
 
 The rule that a covenant against incumbrances does not run with, 
 the land, is comparatively unimportant where the deed contains 
 
 ment to his grantee of his right of action against his grantor. The husband 
 of a deceased grantee, not being a party to the deed containing a covenant 
 against incumbrances, nor assignee of such covenant, cannot maintain an 
 action for breach* thereof, though he joined his wife in a deed conveying the 
 premises with a covenant against incumbrances. Ladd v. Montgomery, 83 
 Mo. App. 355. 
 
 "Rawle Covts. 70, 212. In Brisbane v. McCrady, 1 Nott. & McC. (S. 
 C.) 104, it was held that a covenant that the land was free from incum- 
 brances was equivalent to a covenant that the grantee should quietly enjoy 
 the premises free from incumbrances, and being thus prospective in its char- 
 acter, would pass with the land to a subsequent grantee. See, also, Jeter v. 
 Glenn, 9 Rich. L. (S. C.) 376. 
 
 "Ante, 112. 
 
 "Richard v. Bent, 59 111. 38; 14 Am. Rep. 1. In Ernst v. Parsons, 54 How. 
 Pr. (N. Y. ) 163, it was said that in redeeming land, which had been conveyed 
 with warranty against incumbrances, from a tax sale, a remote grantee did 
 that which it was the covenantor'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 Massa- 
 chusetts. 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 said by WILDE, J. : " There was a 
 breach of the covenant (against incumbrances), it is true, before the assign- 
 ment; but for this breach the covenantee could only have recovered nominal 
 damages. The actual damages accrued after assignment. They were sus- 
 tained by the assignee, and not by the covenantee, who has no interest in
 
 COVENANT AGAINST INCUMBEANCES. 313 
 
 also a covenant of warranty, which, of course, must always be the 
 case in those jurisdictions in which by statute or judicial construc- 
 tion, a covenant of warranty includes a covenant against incuni- 
 brances. 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 dipossession, and in either case recover for breach of the 
 warranty, regardless of the covenant against incumbrances. 30 No 
 damage, as a general rule, flows from the breach of the covenant 
 until the incumbrance has been actually or constructively enforced, 
 and when that occurs the covenant of warranty is broken and an 
 action for damages immediately accrues in favor of the person 
 then owning the premises. 81 
 
 Of course if the damage from a breach of the covenant against 
 incumbrances accrue, that is, if the incumbrance be enforced, be- 
 
 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 rem- 
 edy. 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 
 of seisin have been sustained by the assignee. In Stinson v. Sumner, 9 
 Mass. 143; 6 Am. Dec. 49, a remote grantee was permitted to recover on a 
 covenant against incumbrances. The objection 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. 
 
 "Tufts v. Adams, 8 Pick. (Mass.) 549; Thayer v. Clemence, 22 Pick. 
 (Mass.) 490. Lloyd v. Quimby, 5 Ohio St. 262.
 
 314 MARKETABLE TITLE TO REAL ESTATE. 
 
 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. 12 
 
 The provision 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. 33 
 
 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 conveyance " subject to " an incumbrance constituting 
 a breach of the covenant in the original conveyance, breaks the 
 continuity of the covenant and extinguishes its 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. 14 
 
 129. MEAST7BE OF DAMAGES. General Boles. Incumbrances 
 are of two kinds, namely: (1) Pecuniary, or those which the 
 debtor, his creditors and purchasers from him, have a right to re- 
 move after maturity by payment of the debt which the incumbrance 
 secures, such as a mortgage, deed of trust, judgment or other lien. 15 
 (2) Permanent, or those which cannot be removed without the 
 consent of him who has the right, such as an outstanding 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 
 
 "Frink v. Bellis, 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 grantee, after several meane 
 conveyances. The plaintiff had been compelled to redeem the land from a tax 
 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. 
 
 "Geiazler v. De Graaf, 166 X. Y. 329; 59 N. E. Rep. 993. 
 
 * 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, 
 i 29 et *eq.
 
 COVENANT AGAINST INCUMBEANCES. 315 
 
 damages if he has not been disturbed in the enjoyment of the 
 estate or has paid nothing or sustained no loss on account of the 
 incumbrance. 36 But he will be entitled to nominal damages though 
 
 "Sedg. Dam. p. 953; Rawle Covt. (5th ed.) 188; 3 Washb. Real Prop. 
 (3d ed.) 495. Delavergne v. Norris, 7 Johns. (N. 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. 79, 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 
 against incumbrances. Pomeroy v. Burnett, 8 Bl. (Ind.) 142; Reasoner v. 
 Edmundson, 5 Ind. 393; Black v. Coan, 48 Ind. 385; Bundy v. Ridenour, 63 
 Ind. 406. Willets v. Burgess, 34 111. 494. Lane v. Richardson, (N. C.) 10 S. E. 
 Rep. 189. Wilcox v.. Musche, 39 Mich 101; Norton v. Colgrove, 41 Mich. 544. 
 Egan v. Yearman, (Tenn.) 46 S. W. Rep. 1012. Eaton v. Lyman, 30 
 Wis. 41, DIXON, C. J., dissenting, held the covenantee could not even 
 recover nominal damages. If the grantee, selling the premises, receive, in 
 consequence of the incumbrance, a less price than he would have received if 
 the incumbrance had not existed, he will be entitled to recover as damages 
 the difference between what he actually received and what he would have 
 received if there had been no incumbrance. McGuckin v. Mill bank, 152 N. Y. 
 297 ; 46 N. E. Rep. 490. 
 
 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 mere 
 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 never 
 be asserted. Thus, it frequently happens that negotiations for the sale of 
 the property are broken off upon the discovery of an incumbrance or a de- 
 fect 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 to 
 receive from the prospective purchaser; the right of action, if any exist, 
 would be for the loss of the opportunity to sell. This question was raised 
 in McCarty v. Leggett, 3 Hill '(N. 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 re- 
 covery of damages in such a case would be that the recovery would satisfy 
 the breach, it is apprehended, and the judgment might be pleaded in bar of 
 nny further action in case the incumbrance should be enforced, or the cove- 
 nantee evicted. Rawle Covt. (5th ed.) 189. If, however, he should remove 
 the incumbrance, there soeirs to be no reason why the covenantee should not,
 
 316 MARKETABLE TITLE TO REAL, ESTATE. 
 
 the incumbrance was paid off before his action was commenced. 37 
 In Massachusetts it has been held that in case of a breach of this 
 covenant, resulting from an outstanding interest in the premises in 
 favor of a tenant in common, the covenantee may recover substan- 
 tial damages though the incumbrance has never been enforced by 
 proceedings for partition. 38 
 
 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 
 premises. 89 
 
 In a case in which the deed contained a covenant to " pay and 
 satisfy " on 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. 40 
 
 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 
 
 in addition to the amount paid for that purpose, recover damages for what- 
 ever actual injury he may have sustained from its existence, provided the 
 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. In Harwood v. Lee, (Iowa) 52 N. W. Rep. 
 521, the court refused to reverse a judgment merely for failure to give nom- 
 inal damages for a breach of the covenant against incumbrances. 
 
 u 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.
 
 COVENANT AGAINST INCUMBEANCES. 317 
 
 been sustained. 41 Practically the rule is of no great importance, 
 inasmuch as an action upon the covenant will seldom be brought 
 until the incumbrance has been actually or constructively enforced, 
 and the covenantee has sustained actual damages, in which case, 
 as we have seen, the plaintiff will be entitled to substantial damages. 
 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 breach of the covenant, without waiting to be evicted, 4 * 
 provided the grantor has refused to remove the incumbrance after 
 notification and request. 43 But in such case he can recover as dam- 
 ages no more than the amount actually and fairly paid to discharge 
 the incumbrance, 44 together with compensation for his trouble and 
 
 "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 en- 
 titled to nominal damages, though he had not removed the incumbrance, 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. 
 
 "Hall v. Dean, 13 Johns. (N. Y.) 105. Rainey v. Hines, 121 N. C. 318; 
 28 S. E. Rep. 410. 
 
 "Warren v. Stoddart, (Idaho) 59 Pac. Rep. 540. Greene v. Tallman, 20 
 N. Y. 191; 75 Am. Dec. 384. Here the incumbrance ?omplained of was a 
 species of quit rent due the city of New York. The court, by STBONG, 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 incumbrance 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 -way." 
 
 "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.
 
 318 MARKETABLE TITLE TO REAL ESTATE. 
 
 expenses incurred in that behalf. 45 He will be entitled to that 
 amount as damages even though paid after the institution of his 
 action on the covenant, 46 or before the incumbrance was due. 47 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. 48 The covenantee 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 reasonably paid for that purpose. 49 
 Of course, if it should appear that the incumbrance removed was 
 
 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. 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, 4(5 
 Iowa, 269; 26 Am. Rep. 135. Pillsbury v. Mitchell, 5 Wis. 17. Pearsons v. 
 Ford, 1 Kan. App. 580 ; 42 Pac. Rep. 257. Dahle v. Stakke, 12 N. Dak. 325 ; 
 96 N. W. Rep. 353. 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. 
 
 47 Snyder v. Lane, 10 Ind. 424. 
 
 * Richmond v. Ames, 164 Mass. 467 ; 41 N. E. Rep. 671. 
 
 4 *2 Devlin on Deeds, 919. Gilbert v. Rushmer, 49 Kans. 632; 31 Pac. 
 Rep. 123. Anderson v. Knox, 20 Ala. 156. Guthrie v. Russell, 46 Iowa, 269; 
 26 Am. Rep. 125.
 
 COVENANT AGAINST INCUMBBANCES. 319 
 
 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 cred- 
 itor would part with a solvent security for less than its face value. 
 But in any case in which it might appear that the incumbrance, 
 cither because a junior lien 50 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 en- 
 forcible against the premises. 61 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 without extinguishing the incum- 
 brance he might be in a position to perpetrate a fraud upon the 
 covenantor by transferring his notes secured by the incumbrance 
 to innocent purchasers for value before maturity. 52 
 
 The covenantee cannot recover a sum paid by him to extinguish 
 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. 53 
 
 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. 6 * 
 This rule seems eminently fair and reasonable, since it prevents 
 the covenantee from recovering the consideration money and in- 
 terest from the covenantor, and then regaining the estate by 
 
 10 As in Gilbert v. Rushmer, 49 Kans. 632; 31 Pac. Rep. 123. 
 
 "Robinson v. Bierce, 102 Tenn. 428; 52 S. W. Rep. 992; 47 L. R. A. 275. 
 
 "Harwood v. Lee, (Iowa) 52 N. W. Rep. 521. 
 
 "McMichael v. Russell, 74 N. Y. Supp. 212; 68 App. Div. 104. 
 
 " 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.
 
 320 MARKETABLE TITLE TO REAL ESTATE. 
 
 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, 55 and there are 
 several decisions to the same effect in other States, 56 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 de- 
 manded by the defendant. No duty, however, devolves upon the 
 covenantee to discharge the incumbrance before it is enforced, 57 
 or to redeem the premises after enforcement, 58 and his fail- 
 ure 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. 59 Evidence of the pur- 
 poses for which the covenantee bought the premises, e. g, f as a 
 speculation, is inadmissible for the purpose of aggravating the 
 damages, 60 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. 61 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. 62 
 
 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 
 
 "Chapel v. Bull, 17 Mass. 213; Jenkins v. Hopkins, 8 Pick. (Mass.) 346. 
 
 "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. 
 
 "Bank v. Clements, 16 Ind. 132. 
 
 " Sanders v. Wagner, 32 N. J. Eq. 506. 
 
 M Mohr v. Parmelee, 43 N. Y. S. C. 320. Snyder v. Xane, 10 Ind. 424; Med- 
 ler v. Hiatt, 8 Ind. 171. 
 
 90 Batchelder v. Curtis, 3 Cush. (Mass.) 204. Greene v. Creighton, 7 R. 1. 10. 
 
 " Foster v. Foster, 62 N. H. 46. 
 
 "Stewart v. Drake, 4 Halst. (N. J.) 139.
 
 COVENANT AGAINST INCUMBBANCES. 321 
 
 the rule has been recognized in most of the States in which it has 
 been considered. 63 In Missouri, however, it has been rejected. 64 
 In Massachusetts it has been held that the recovery cannot exceed 
 the value of the land at the time the incumbrance was removed, 68 
 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 
 
 "4 Kent. Com. (llth ed.) 563; Rawle Covt. 193. Dimmick v. Iiockwood, 
 10 Wend. (N. Y.) 142; Grant v. Tallman, 20 N. Y. 191; 75 Am. Dec. 384; 
 Andrews v. Appel, 22 Hun (N. Y.), 429. Boyd v. Whitfield, 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. Burnet, 10 Ohio, 333; 36 Am. Dec. 90; 
 Nyce v. Obertz, 17 Ohio, 77; 49 Am. Dec. 444. Eaton v. Lyman, 30 Wis. 41. 
 Willetts v. Burgess, 34 111. 494, obiter. Kandler v. Sharp, 41 Iowa, 232, 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 might be 
 required to make in order to protect his title, not exceeding the purchase 
 money and interest, he might properly make and demand its return from the 
 grantor, etc. In Hawthorne v. City Bank, 34 Minn. 382; 26 N. W. Rep. 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 
 damages incurred in removing the same, applied only to incumbrances ap- 
 pearing of record but not existing in fact, and was not intended to change 
 the rule limiting the damages for a breach of the covenant to the consider- 
 ation money. 
 
 "Walker v. Deaver, 5 Mo. App. 139, where it was held that the covenaniee 
 is entitled to recover what he fairly and reasonably paid to remove the in- 
 cumbrance, 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. 
 "Norton v. Babcock, 2 Met. (Mass.) 510. 
 
 21
 
 322 MARKETABLE TITLE TO REAL ESTATE. 
 
 improvements is the result of his own negligence. 66 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. 67 
 
 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 be- 
 longing 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. 88 
 
 132. Measure of damages where the incumbrance is per- 
 manent. Where the incumbrance is permanent, or one that the 
 covenantee cannot remove as a matter of right, he will be entitled 
 to a just compensation for the injury sustained, 69 the measure of 
 
 "Dimmick v. Lockwood, 10 Wend. (N. Y.) 142. 
 
 67 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. 
 
 "Utica C. & S. V. R. Co. v. Gates, 47 N. Y. Supp. 231; 21 Misc, 205, in 
 which case the granted premises were to be used for railroad purposes. 
 
 M 3 Washb. Real Prop. (4th ed.) 495; Sedg. Dam. (6th ed.) 199; Rawle 
 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. 450; 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 N. 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 be- 
 cause of the incumbrance. Foster v. Foster, 62 N. H. 46. In Kellogg v. 
 Malin, 62 Mo. 429; 11 Am. Rep. 426, the incumbrance complained of was a 
 right of way through the warranted land. The court, after declaring that 
 the grantee was entitled only to nominal damages where he had not suffered 
 any actual injury from the incumbrance, and that if he removed the incum- 
 brance he was entitled to recover what he paid for that purpose, if reason- 
 able, continued: "When, however, the incumbrance 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 ease- 
 ment 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 con-
 
 COVENANT AGAINST INCUMBEANCES. 323 
 
 which will be, as a general rule, the difference between the present 
 value of the premises and their fair market value without the in- 
 cumbrance. 70 If the incumbrance consist of an unexpired lease of 
 the premises, the whole purchase money cannot be recovered as 
 damages. 71 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. 72 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. 73 If the covenantee has 
 
 tinuance. There is a good reason for the distinction. In case of an incum- 
 brance by an ordinary lien or mortgage, the grantee may pay off the 
 incumbrance at any time and free the premises, or the person who made the 
 lien or mortgage may extinguish 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 easement, for use in connection with adjoining premises, for which use 
 the covenantee purchased the premises, the covenantor being ignorant of such 
 intended use. Such damages are too remote. A party wall standing wholly 
 on the warranted land is an incumbrance for which the grantee is entitled 
 to more than nominal damages. Mohr v. Parmelee, 43 N. Y. S. C. 320. In 
 Kostenbader v. Price, 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 be considered in estimating 
 the damages to the covenantee. A decision to the contrary was made in 
 Wadhams 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 injury to the estate. It is a pecuniary incumbrance, 
 which will entitle him to damages only so far as he may have made pay- 
 ments thereon. Myers v. Brodbeck, 110 Pa. St. 198; 5 Atl. Rep. 662. 
 
 70 Sutton v. Baillie, 65 Law Times Rep. 528. Bronson v. Coffin, 108 Mass. 
 175; 11 Am. Rep. 335. Streeper v. Abeln, 59 Mo. App. 485. 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. 
 
 "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. 
 
 " Batchelder v. Sturgis, 3 Cush. (Mass.) 204, disapproving Rickert v. 
 Snyder, supra. Brass v. Vandecar, (Nebr.) 96 N. W. Rep. 1035. The
 
 324 MARKETABLE TITLE TO SEAL ESTATE. 
 
 been kept out of the estate by a life tenant, the measure of dam- 
 ages will be the value of the estate for the time that he has been 
 deprived of its enjoyment. 74 
 
 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. 75 If the incumbrance consist of 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 plaintiffs damages, and that the jury may make 
 use of approved tables of longevity in computing the damages. 7 ' 
 It may be observed here that wherever, as in the case just men- 
 tioned, the covenantee 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. 77 Where the incumbrance 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. 78 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 
 
 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. 
 
 Christy v. Ogle, 33 111. 296. 
 
 "Moreland v. Metz, 24 W. Va. 137; 49 Am. Rep. 246. 
 
 w Mills v. Catlin, 22 Vt. 98. 
 
 "Rawle Cork 189. Taylor v. Hertz, 87 Mo. 660. But a judgment for 
 nominal damages in an action for breach of the covenant against incum- 
 brances is no bar to an action on a covenant of warranty, contained in the 
 same conveyance, brought after the incumbrance was enforced and the plain- 
 tiff evicted. Donnell v. Thompson, 1 Fairf. (Me.) 170; 25 Am. Dec. 216. 
 
 n Rosenberger v. Keller, 33 Grat. (Va.) 493. Ensign v. Colt, 75 Conn. 
 Ill; 52 Atl. Rep. 829. 

 
 COVENANT AGAINST INCUMBBANCES. 325 
 
 from improving the estate, or may have been otherwise injured 
 by the existence of the incumbrance. He is entitled to compensa- 
 tion for whatever actual damage he may have suffered. 79 
 
 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. 80 
 
 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 defence, 
 including fair and reasonable attorney's fees. He will be en- 
 titled to recover what his attorney's services were reasonably 
 worth, but nothing in excess of the value of such services. 81 
 
 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 ; 82 that is, he must describe the incumbrance, 
 
 "Wetherbee v. Bennett, 2 Allen (Mass.), 428, HOAB, J., saying: "The in- 
 etunbrance was a right of way over the land, which subsisted at the time of 
 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 that 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 ob- 
 jectionable. It was an apparently permanent subtraction from the substance 
 of the estate." But see Ilcrrick v. Moore, 19 Me. 313, where it was held that 
 if a country road, being an incumbrance on the land, was discontinued with- 
 out expense to the plaintiff before he brought his action, he could recover only 
 nominal damages. 
 
 80 Herb v. Met. Hosp. & Disp., 80 N. Y. Supp. 552; 80 App. Div. 145. 
 
 M Charman v. Tatum, 66 N. Y. Supp. 275; 54 App. Div. 61. 
 
 "Marston v. Hobbs, 2 Mnss. 433; 3 Am. Dec. 61; Bickford v. Page, 2
 
 326 MARKETABLE TITLE TO REAL ESTATE. 
 
 giving name, date, amount and other particulars of description, 
 but, of course, without reciting the instrument in so many words, 81 
 It is necessary that the incumbrance be substantially described, in 
 order that the court may determine whether it be in fact an incum- 
 brance. 84 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. 85 
 If the plaintiff has extinguished the incumbrance, he must aver 
 that fact in the declaration ; 86 and the declaration will be had on 
 demurrer if he fails to allege that he has not been reimbursed by 
 the grantor. 87 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. 88 
 
 The burden of proof will be on the plaintiff to establish the 
 existence of the incumbrance, 89 and to show that it was a valid 
 and subsisting lien at the time of the conveyance. 90 
 
 Mass. 455. Mills v. Catlin, 22 Vt. 98. Shelton v. Pease, 10 Mo. 473. If the 
 facts set out in the complaint constitute a breach of the covenant against 
 incumbrances as well as a breach of the covenant of warranty, the plaintiff 
 is not, under the Code practice, bound to elect upon which breach he will 
 proceed. Brans v. Schreiber, (Minn.) 51 N. W. Rep. 120. 
 
 "Duval v. Craig, 2 Wh. (U. S.) 45. Morgan v. Smith, 11 III. 200. It 
 would be unsafe to set forth the incumbrance t'n hcec verba, because if not 
 accurately described, there would be a variance. In an action on a cove- 
 nant against incumbrances where the breach alleged is an outstanding tar, 
 rariance between the description of the premises contained in the deed and 
 that contained in the assessment roll is immaterial, provided the same land 
 is adequately and particularly described in each, though by different worda. 
 Mitchell v. Pillsbury, 5 Wis. 410. 
 
 "Vorhis v. Forsyth, 4 Biss. (C. C.) 409. 
 
 "Mayo v. Babcoek, 40 Me. 142. The incumbrance complained of here waa 
 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. 
 
 " Kent v. Cantrell, 44 Ind. 452. 
 
 M Spencer v. Howe, 26 Conn. 200. 
 
 "Jerald v. Elly, 51 Iowa, 321; 1 N. W. Rep. 639. 
 
 80 Abb. Tr. Ev. 520. Kirkpatrick v. Pearce, 107 Ind. 520; 8 N. E. Rep. 573, 
 citing Cook v. Fuson, C6 Ind. 521, and other Indiana cases.
 
 COVENANT AGAINST INCUMBEANCES. 327 
 
 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. 91 
 
 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. 92 
 
 M Patterson v. Yancey, 81 Mo. 379. The rule requiring the best evidence 
 makes the production of the deed necessary. 
 
 "Hastings v. Hastings, 58, N. Y. Supp. 671; 41 App. Div. 540.
 
 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. 138. 
 
 Married women. 138a. 
 
 Heirs and devisees. Joint covenantors. 139. 
 
 Personal representatives. 140. 
 
 Municipal corporations. 140a. 
 
 Who may sue for breach of warranty. 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. 
 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. 160. 
 
 Original covenantor must have been actually seised. 161. 
 
 Assignee not affected by equities between original parties. 102. 
 
 Covenant extinguished by reconveyance to covenantor. 163. 
 HEASURE 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. 168. 
 
 Loss of term for years. 169. 
 
 Eviction from part of the estate. 170.
 
 COVENANTS OF WABRANTY AND FOE QUIET ENJOYMENT. 329 
 
 Improvements. 171. 
 
 Interest on damages. 172. 
 
 Costs. 173. 
 
 Counsel fees and expenses. 174. 
 
 NOTICE OF HOSTILE SUIT AND REQUEST TO DEFEND. 175. 
 PLEADING AND BURDEN OF PROOF. 176. 
 COVENANT 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 invest 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." 8 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 chartce* 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. 6 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. 
 
 The modern covenant of warranty is peculiar to the American 
 States, being unemployed in England, 7 where its place is taken by 
 
 'Co. Litt. 365a. Stout v. Jackson, 2 Rand. (Va.) 142. 
 
 * Co. Litt. 386a. 
 
 * Ego et hwredes mei warrantizabimus in perpetuum. Bac. Abr. Warranty 
 M. Tabb v. Binford, 4 Leigh (Va.), 140 (150) ; 26 Am. Dec. 317. 
 
 'Stout v. Jackson, 2 Rand. (Va.) 132. 
 
 "Paxson v. Lefferts, 3 Rawle (Pa.), 68, n., citing Fitzh. Nat. Brev. 135 H.; 
 Id. 315. 
 
 The covenant of warranty is not found among those enumerated by Sir 
 Edward Sugden. See Sugd. Vend. (8th Am. ed.) ch. 14, 3. 
 
 '3 Washb. Real Prop. 466 (660) ; Rawle Covts. (5th ed.) ch. 8.
 
 330 MARKETABLE TITLE TO KEAL ESTATE. 
 
 the covenant for quiet enjoyment. !N"o 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 chartce has been main- 
 tained against the covenantor. These remedies have been deemed 
 unsuited 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. 8 
 
 The modern covenant of warranty can, like the ancient warranty, 
 be created only by deed. 9 A covenant in an instrument, in form 
 a deed, but in fact a will, cannot be treated as a covenant of war- 
 ranty, and, therefore, is not broken by a subsequent conveyance 
 
 8 Townsend v. Morris, 6 Cow. (N. Y.) 123, a leading case. Chapman T. 
 Holmes, 5 Halst. (N. J. L.) 24. Stout v. Jackson, 2 Rand. (Va.) 132. See 
 the erudite opinions of GREEN and COALTER, JJ., in this case, in which the 
 nature of the real actions of voucher and warratntia chartce, and the practice 
 therein, are set forth. Ricketts v. Dickens, 1 Murph. L. (N. C.) 343; 4 Am. 
 Dec. 555; Jacocks v. Gilliam, 3 Murph. L. (N. C.) 47. Booker T. Bell, 3 
 Bibb (Ky.), 173; 6 Am. Dec. 641. Jourdain v. Jourdain, 9 Serg. & R. (Pa.) 
 276; 11 Am. Dec. 24. Stewart v. West, 14 Pa. St. 336. The American doc- 
 trine and practice upon this point is fairly represented by the following ex- 
 tract from the case of Booker v. Bell, 3 Bibb (Ky.), 173; 6 Am. Dec. 641: 
 " Where the conveyance was by feoffment with warranty, the ancient and 
 usual remedy in case the feoffee was evicted was by voucher or warrantia 
 chartce. Whether in such a case an action of covenant would not also lie 
 is not very clearly settled in the English books, so far as we have had an 
 opportunity of examining them. It is, however, said to be the better opinion 
 that it would not. But be that as it may, it does not necessarily follow that 
 the same doctrine will hold good with rega'rd to a warranty contained in a 
 deed of bargain and sale, or other deed operating under the statute of uses. 
 It is evident that prior to that statute, if any action would lie for a breach 
 of the covenant of warranty contained in such a deed, it must have been an 
 action of covenant. It could then have been but a personal covenant, and 
 ought, we apprehend, to be still so considered. But there are other consider- 
 ations which we think are entitled to greater weight upon this point. The 
 covenant of warranty has ever since, and long before the establishment of this 
 commonwealth, been uniformly treated as a personal covenant, upon which 
 the action of covenant would lie. The invariable practice for so many years 
 in a case where the balance hangs so nearly in equilibris, ought to turn the 
 scale in favor of the action; more especially as the remedy by voucher is 
 taken away by statute, and the writ of warrantia chartce has become ob- 
 solete." 
 
 Scott v. Scott. 70 Pa. St. 244.
 
 COVENANTS OF WARRANTY AND FOB QUIET ENJOYMENT. 331 
 
 on the part of the maker of the instrument. 10 It is not necessary, 
 however, that the covenant should appear in any particular part 
 of the deed. 11 The four corners of the instrument are to be looked 
 to in order to ascertain the intention of the parties. And it has 
 been held that a covenant of warranty indorsed upon a deed is 
 valid. 12 If a person, under a fictitious or assumed name, execute 
 a conveyance, he will, under his real name, be bound by the cove- 
 nants for title therein contained. 13 
 
 The covenant of warranty as employed in America is either gen- 
 eral, that is, against the claims of all persons whatsoever, or 
 special, that is, against any claim by, through or under the 
 grantor, or against the claims of a designated person or persons. 14 
 The covenant of general warranty is usually thus expressed : " The 
 said (grantor) covenants that he, his heirs and personal represent- 
 atives, will forever warrant and defend the said property unto 
 the grantee, his heirs, personal representatives and assigns, against 
 the claims and demands of all persons whomsoever." The cove- 
 nant of special warranty is expressed in the same way, except the 
 last clause, which is written " against the claims and demands of 
 the (grantor), and all persons claiming or to claim by, through 
 
 " Scoff v. Scoft, 70 Pa. St. 244. 
 
 "Midgett v. Brooks, 12 Ired. L. (N. C.) 145, 148; 55 Am. Dec. 405. 
 
 "Platt Covts. 136. Coster v. Monroe Mfg. Co., 1 Gr. Ch. (N. J.) 478. 
 
 "Preiss v. Le Poidevin, 19 Abb. N. Cas. (N. Y.) 123. 
 
 "See 67 note, for form of general and special covenants of warrant/. A 
 covenant to defend the title against any person claiming under the original 
 grantee or patentee of the land is equivalent to a covenant of general war- 
 ranty. Little v. Allen, 56 Tex. 133. The word " warrant " is not indispens- 
 able in a covenant of warranty. A covenant to " defend " the title against 
 the claims of all persona, etc., is sufficient. Kirkendall v. Mitchell, 3 McL. 
 (U. S.) 144. An interesting case arose in Wisconsin in which the question 
 was whether the covenant was to be treated as general or special. A printed 
 form for a special warranty deed was used, containing the usual clause that 
 the grantor the peaceable possession of the premises " against every person 
 
 claiming any part thereof by, through, or under >-, and no other , 
 
 will forever warrant and defend." The deed was executed without filling 
 these blanks. It was held that the court had no power either to fill the 
 blanks, so as to make a special warranty, nor to disregard them and treat 
 the language as a general warranty; and hence, that the clause was mean- 
 ingless, and that the grantee, who had been evicted by the holder of a better 
 title, was without relief. Miss. River Logging Co. v. Wheelihan, 94 Wis. 96 ; 
 68 N. W. Rep. 878.
 
 332 MAEKETABLE TITLE TO REAL ESTATE. 
 
 or under him." In some of the States, these forms may, by 
 statute, be greatly abbreviated, a covenant that the grantor " will 
 warrant generally the property hereby conveyed," or a mere con- 
 veyance " with general warranty," being given the force and effect 
 of a full covenant of warranty. In the same way, the grantor 
 may " warrant specially " the property conveyed, or convey " with 
 special warranty," and these forms will be given the same effect 
 as a covenant of special warranty expressed at full length. 15 We 
 have seen that at common law a warranty could not be created 
 except by the use of the word warrant. But no such strictness 
 prevails at the present day. While the foregoing forms are those 
 usually employed, the law has not appropriated any particular 
 form of words to the creation of a covenant; any words sufficient 
 to show the intention of the parties will suffice as a covenant. 18 
 In some of the American States, there is employed what is called 
 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. 17 
 
 " See Va. Code, 1887, 2446. 
 
 "Platt Covts. 28; Rawle Covts. (5th ed.) 22, notes. Johnson r. Hollens- 
 worth, 48 Mich. 140. Cole v. Lee, 30 Me. 392; citing 4 Cruise, 447, 449. 
 Lant v. Norris, 1 Burr, 290. Buller's N. P. 156, and Cro. James, 391. Trutt 
 v. Spott, 87 Pa. St. 339. In Midgett v. Brooks, 12 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 see 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. Caldwell v. Kirkpatrick, 6 Ala. 60; 41 Am. Dec. 36. The fol- 
 lowing language in a deed, "to have and to hold the said land unto the said 
 grantee, his heirs and assigns forever as a good and indefeasible estate in fee 
 simple," does not amount to a covenant of warranty. Wheeler v. Wayne Co., 
 (111.) 24 N. E. Rep. 625. 
 
 "Gee v. Moore, 14 Cal. 472; Kimball v. Semple, 25 Cal. 452; Morrison v. 
 Wilson, 30 Cal. 348. Cole v. Lee, 30 Me. 392. Newcomb v. Presbrey, 8 Met. 
 (Mass.) 406; Miller v. Ewing, 6 Gush. (Mass.) 34; Gibbs v. Thayer, 6 Gush. 
 (Mass.) 33.
 
 COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 333 
 
 135. CONSTRUCTION AND EFFECT. In a number of the 
 States the covenant of warranty includes by virtue of statutory 
 provision or judical construction all the other covenants for title. 1 * 
 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 de- 
 nied, however, that the popular notion of a covenant of warranty 
 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 
 
 M So in Iowa, Funk v. Creswell, 5 Iowa, 62 ; Van Wagner v. Van Nostrand, 
 19 Iowa, 422, and in South Carolina, Evans v. McLucaa 12 S. C. 56. Butte 
 v. Riffe, 78 Ky. 352; Smith v. Jones, (Ky.) 31 S. W. Rep. 475. Messer v. 
 Orstrich, 52 Wis. 693; 10 N. 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.
 
 334 MARKETABLE TITLE TO REAL ESTATE. 
 
 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 claimant 
 of it by right, and it is consequently a covenant against eviction 
 only." 19 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. 20 
 
 Independently 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. 21 But it seems that an agreement 
 to execute a conveyance with a covenant against incumbrances 
 would not be performed by executing a deed with general war- 
 ranty. 22 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. 23 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 
 against incumbrances. 24 The ancient common-law warranty ex- 
 tended 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. 25 Practically, however, it would seem un- 
 important, as a covenant for quiet enjoyment is always implied in 
 
 "GIBSON, C. J., in Dobbins v. Brown, 12 Pa. St. 79. Oliver v. Bush, 125 
 Ala. 534; 27 So. Rep. 923. 
 
 20 As in Wash. City Savings Bank v. Thornton, 83 Va. 157; 2 S. E. Rep. 
 193. 
 
 21 King v. Kerr, 5 Ohio, 158 ; 22 Am. Dec. 777. Post, 355. 
 22 Bostwick v. Williams, 36 111. 65; 85 Am. Dec. 385. See, also, Findlay v. 
 
 Toncray, 2 Rob. (Va.) 374, 379. 
 
 ""Donnell v. Thompson, 1 Fairf. (Me.) 170; 25 Am. Dec. 216. 
 
 "See ante, 119. 
 
 "Co. Litt. 389a; Shep. Touch. 184. Mitchell v. Warner, 5 Conn. 497.
 
 COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 335 
 
 a conveyance for years, the only estate less than freehold that is of 
 
 M 
 
 any consequence. 
 
 The effect of a covenant of warranty as an estoppel is elsewhere 
 considered in this work. 27 
 
 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. 28 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. 29 A 
 mere sale and conveyance, however, with general warranty, sub- 
 ject to a prior mortgage, will not of itself be construed as an 
 
 " Post, " Implied Covenants," 137. 
 
 "Post, 216. 
 
 "Barlow v. Delaney, 40 Fed. Rep. 97. Ballard v. BurrougKs, 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; Batterton 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 
 WALWORTH : " 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." 
 
 "Allen v. Lee, 1 Ind. 58; 48 Am. Dec. 352; Pitman v. Conner, 27 Ind. 237. 
 This doctrine is perhaps confined to the States of Pennsylvania and Indiana. 
 See post, 269 and ante, 269 and ante, 121. 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 tne 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.
 
 336 MAEKETABLE TITLE TO REAL ESTATE. 
 
 agreement by the grantee to pay the mortgage as a part of the 
 purchase money. 30 
 
 Want of consideration is no answer to an action for breach of the 
 covenant of warranty. 81 
 
 A covenantee who has been evicted from the demised premises, 
 and who has recovered damages for breach of the warranty, ia 
 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. 32 
 
 It will be seen hereafter that the covenant of warranty docs 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. 33 
 
 As a consequence of the rule that all prior agreements of the 
 parties respecting the title are merged in a conveyance with .v ve- 
 naut for title, the grantor, when sued for a breach of the ccvotnnt 
 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 premises, 
 if it should be asserted. 34 
 
 The United States, claiming under a defective scrip entry of 
 public lands, is a " person," within the meaning of a warrant/ 
 against all persons lawfully claiming the land. 35 
 
 Warranty does not extend to quantity. A covenant of war- 
 j 
 
 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 
 
 "Aufricht v. Northrup, 20 Iowa, 61. 
 
 "Mather v. Corliss, 103 Mass. 568, 571; Comstock v. Son, 154 Mass. 389; 
 28 N. E. Rep. 296. 
 
 S! Ives v. Niles, 5 Watts (Pa.), 323. 
 
 "Crisfield v. Storr, 36 Md. 129; 11 Am. Rep. 480. Post, this ch., 144. 
 
 "Post, 181; ante, 121. Beaseley v. Phillips, 10 Ind. App. 182; 50 N. E. 
 Rep. 488. 
 
 16 Giddings v. Holter, 19 Mont. 263 ; 48 Pac. Rep. 8.
 
 COVENANTS OF WARRANTY AND FOB QUIET ENJOYMENT. 337, 
 
 of acres mentioned. 36 The covenant of warranty does not 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 por- 
 tion of the lands within the given bounds. A deficiency in the acre- 
 age, 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. 37 A breach of warranty can 
 only be with respect to the precise lands conveyed by the deed, and 
 parol evidence will be , inadmissible 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. 38 And if a deed con- 
 
 "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. But see 
 Moore v. Johnson, 87 Ala. 220, where it was said that the covenant of seisin 
 is broken by a material deficiency in the quantity of the land conveyed. 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 
 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. 
 Steiner v. Baughman, 12 Pa. St. 106. 
 
 37 Broadway v. Buxton, 43 Conn. 282. Smith v. Fly, 24 Tex. 345 ; O'Con- 
 nell v. Duke, 29 Tex. 299. Bennett v. Latham, 18 Tex. Civ. App. 403; 45 
 S. W. Rep. 934; Stark v. Homuth, (Tex. Civ. App.) 45 S. W. Rep. 761; 
 Barnes v. Lightfoot, (Tex. Civ. App.) 62 S. W. Rep. 564. 
 
 S8 Tymason v. Bates, 14 Wend. (N. Y.) 671. It seems that this rule does 
 not apply in Texas. Where the grantor at the time of the sale, points out 
 the boundaries of the tract sold, as established by natural or artificial monu- 
 ments, the warranty in his dee'd applies to the very 'land so pointed out by 
 him, though the calls in his deed to the covenantee do not include a strip on 
 
 22
 
 338 MAEKETABLE TITLE TO REAL ESTATE. 
 
 vej a lot with warranty 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. 29 
 
 13G. QUALIFICATIONS AND EESTBICTIONS OF THE COVE- 
 NANT OF WABBANTY. 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 gen- 
 eral covenant. Under such circumstances the following rules have 
 been formulated by Sir Edward Sugden for the construction of the 
 instrument : 40 (1) An agreement in any part of a deed that the cove- 
 nants shall be restrained to the acts of particular persons will be 
 good, notwithstanding that the covenants themselves are general 
 and unlimited. (2) General covenants will not be cut down unless 
 the intention of the parties clearly appears. 41 (3) Where restrictive 
 words are inserted in the first of several covenants having the same 
 object, they will be construed as extending to all the covenants, 
 although they are distinct. 42 (4) Where the first covenant is gen- 
 one of the sides of the land as pointed out. Meade v. Jones, (Tex. Civ. App.) 
 35 S. W. Rep. 310. Meade v. Boone, (Tex. Civ. App.) 35 S. W. 483. King 
 v. Bressie, (Tex. Civ. App.) 32 S. W. Rep. 729. And in Kentucky it has been 
 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. 
 
 w Burke v. Nichols, 34 Barb. (N. Y.) 430; S. C., 2 Keyes (N. Y.), 670. 
 
 40 2 Sugd. Vend. (14th ed.) 279 (605) ; Rawle Covts. (5th ed.) 289. 
 
 "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. 
 
 "Browning v. Wright, 2 Bos. & Pul. 13; Howell v. Richards, 11 East, 633. 
 Whallon v. Kauffman, 19 Johns. (N. Y.) 97. Davis v. Lyman, 6 Conn. 252.
 
 COVENANTS OF WARRANTY AND FOE QUIET ENJOYMENT. 339 
 
 eral, a subsequent limited covenant will not restrain the generality 
 of the preceding 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 cove- 
 nant, or unless there are words in the covenant itself amounting to 
 a qualification. 43 As, on the one hand, a subsequent limited cove- 
 nant does not restrain a preceding general covenant, so, on the 
 other, a preceding general 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 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 covenants 
 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. 44 
 
 Duval v. Craig, 2 Wh. (U. S.) 45. See, also, Nind v. Marshall, 1 Brod. & 
 Bing. 319. Dickinson v. Hoomes, 8 Grat. (Va.) 353. 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 con- 
 trol the preceding covenant. Cornish v. Capron, 136 N. Y. 232; 32 N. E. 
 Rep. "73. Where the grantees covenanted that they would " warrant specially 
 the land hereby conveyed," 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 N. E. Rep. 830. Morri- 
 son v. Morrison, 38 Iowa, 73. Peters v. Grubb, 21 Pa. St. 460. Atty.-Gen. 
 v. Purmort, 5 Paige Ch. (N. Y.) 620. See, also, Cole v. Hawes, 2 Johns. Cas. 
 (N. Y.) 203. Cornell v. Jackson, 3 Cush. (Mass.) 506; Phelps v. Decker, 
 10 Mass. 267. Bender v. Fromberger, 4 Dallas (Pa.), 440, where it was held 
 that a special warranty in a deed would not control a preceding general war- 
 ranty, if it appeared from the face of the deed that a general warranty wns 
 intended. A special covenant to warrant and defend the premises against 
 the grantor's taxes, and against the grantor's own acts, docs not limit a prior 
 general covenant implied from the words " convey and grant.'' Jackson v. 
 Grun, 112 Ind. 341; 14 N. E. Rep. 89. 
 
 44 Chitwood v. Russell, 36 Mo. App. 245.
 
 340 MARKETABLE TITLE TO REAL ESTATE. 
 
 "\Yhere 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. 45 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. 48 
 If general covenants are entered into contrary to the intention of 
 the parties, special, limited or restricted covenants having been 
 agreed upon, a court of equity will correct the mistake, and reform 
 the instrument. 47 
 
 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 
 
 ^Washb. Real Prop. 665; Rowle 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 N. J. L. 510. McNear v. 
 McComber, 18 Iowa, 14. Young v. Clippinger, 14 Kans. 148. White Y. 
 Brocaw, 14 Ohio St. 339. Lamb v. Wakefield, 1 Sawy. (U. S.) 251. Hope 
 v. Stone, 10 Minn. 141 (114). 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 lan- 
 guage of the deed was " All the land which I own by virtue of a deed dated 
 
 * * * from Asa S. Mills, recorded * * * being all my light and title 
 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 Atl. 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 Tex. 453; Bumpass v. Anderson, (Tex. Civ. App.) 
 51 S. W. Rep. 1103; Kempner v. Lumber Co., (Tex. Civ. App.) 49 S. W. Rep. 
 412. 
 
 4T 2 Sugd. Vend. (14th ed.) 609 (285) ; Rawle Covts. (5th ed.) 296.
 
 COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 341 
 
 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. 48 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. 49 
 
 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. 50 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, 51 in view of the rule that 
 restrictive words inserted in the first of several covenants having 
 the same object, will be construed to extend to all the covenants, 
 though they are distinct; 52 at least such would be the fair con- 
 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, in- 
 tended to reimpose that liability upon him by a subsequent war- 
 ranty necessary for the protection of the grantee against other con- 
 tingencies. 
 
 137. IMPLIED COVENANTS. At common law certain cove- 
 nants were implied from the word " dedi " (I have given) in a 
 feoff ment, and from the word " dcmisi " (I have demised) in a 
 lease, but no covenant was implied from the words of grant in con- 
 veyances operating under the statute of uses, such as a deed of 
 bargain and sale, or a lease and release. 53 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 
 
 48 Miller v. Bayless, 101 Mo. App. 487; aff'd, 74 S. VV. Rep. 648. 
 
 49 Koch v. Hustis, 113 Wis. 604; 89 N. VV. Rep. 838. 
 
 "McLane v. Allison, (Knns. App.) 53 Pac. Rep. 781, citing Bennett v. 
 Keehn, 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. 
 
 "Jackson v. Hoffman, 9 Cow. (N. Y.) 271. 
 
 W 2 Sugd. Vend. (14th ed.) 279 (605). 
 
 M Rawle Covts. for Title (5th ed.), 282.
 
 342 MARKETABLE TITLE TO HEAL ESTATE. 
 
 subject of implied covenants for title is with us practically obsolete. 
 The general rule, in the absence of any statutory provision on the 
 subject, is, that no warranty is implied in the conveyance of real 
 property. 6 * 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. 55 In others, implied covenants are 
 expressly abolished, except, perhaps, in the case of leases. 66 In 
 others, where the common law remains unchanged by statute, it is 
 apprehended that its rules in this regard are still law, but practi- 
 cally a dead letter by reason of the disuse of those conveyances from 
 which the implication springs. 57 
 
 As to covenants implied by force of statute, it is deemed in- 
 expedient to enter into any discussion of their form and incidents, 
 since they vary in the different States, and the decisions respecting 
 them must be chiefly of mere local application. It is to be ob- 
 served, 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. 58 A covenant of general warranty will not be implied 
 from the recitals of a deed, when the deed contains an express cove- 
 nant of special warranty. 59 A covenant of warranty will not be 
 implied from the word " grant," where a statute gives that effect to 
 
 64 3 Washb. Real Prop. 447 ; Thompson v. Schenectady R. Co., 124 Fed. 274. 
 
 65 So in Delaware (Rev. Stat. 1874, p. 500), Indiana (Rev. Stat. 1881, 
 2927), Wisconsin (Rev. Stat. 1878, 2208). 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. 5656. Minn. Rev. St. 1881, p. 535. Oregon, 
 Doady's Laws, p. 647. New York, 3 Rev. St. (5th ed.) p. 29, 160. 
 
 57 In North Carolina it is held that there is no implied warranty in the sale 
 cf 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. 
 Houghton, 85 N. C. 168 ; Huntley v. Waddell, 34 N. 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. 62; 40 S. E. Rep. 842. 
 
 58 Douglas v. Lewis, 131 U. S. 75. Weems v. McCaughan, 7 Sm. & M. 
 (Miss.) 472; 45 Am. Dec. 314. Finley v. Steele, 23 111. 56. 
 
 "Buckner v. Street, 15 Fed. Rep. 365. McDonough v. Martin, 88 Ga. 675; 
 16 S. E. Rep. 59.
 
 COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 343 
 
 the words " grant, bargain and sell," 60 nor from the word " con- 
 vey," when the words " grant, bargain and sell " are not em- 
 ployed. 61 The statutory covenants implied from the words " grant, 
 bargain and sell," are as operative in a deed of trust to secure pay- 
 ment of a debt, as in an ordinary fee simple deed. 62 
 
 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. 83 
 The covenants will be implied wherever the relation of landlord 
 and tenant is created by the, instrument in writing, whether the 
 word " demise " was or was not employed, 64 and the covenant for 
 quiet enjoyment will be implied, though the lease was by parol. 6 * 
 The covenant so implied will, of course, be limited or restrained 
 by any express covenant which the lease may contain. 66 So, also, 
 by an express provision in the lease that nothing therein contained 
 shall be construed to imply a covenant for quiet enjoyment. 67 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. 68 A 
 lease of the right to collect wharfage for a year is not a " con- 
 veyance of real estate," within the meaning of a statute forbidding 
 
 " 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. 
 
 "Hettm v. Phillips, (Ala.) 11 So. Rep. 729. 
 
 "Cockrill v. Bane, 94 Mo. 444. Boyd v. Hazeltine, 110 Mo. 203; Blanchard 
 v. Haseltine, 79 Mo. App. 248. 
 
 "Mayor v. Mabie, 3 Kern. (N. Y.) 151. Avery v. Dougherty, 102 Ind. 443; 
 52 Am. Rep. 680. Hyman v. Boston Chair Mfg. Co., 58 N. Y. Super. Ct. 282 ; 
 11 N. Y. Supp. 52. 
 
 "Bandy v. Cartright, 8 Exch. 913. Dexter v. Manley, 4 Cush. (Mass.) 14. 
 Ross. v. Dysart, 33 Pa. St. 453. 
 
 65 Bandy v. Cartright, 8 Exch. 913. 
 
 "Rawle Covts. (5th ed.) 275. 
 
 "Maeder v. Carondelet, 26 Mo. 114. 
 
 88 Adams v. Gibney, 6 Bing. 656. Mayor v. Baggatt, 61 Miss. 383. Mc- 
 Xiowry v. Croghan, 1 Grant's Cas. (Pa.) 307, 311.
 
 344 MARKETABLE TITLE TO BEAL ESTATE. 
 
 the implication of covenants for title in such conveyances, and a 
 covenant for quiet enjoyment will be implied in such a lease. 69 
 
 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. 70 
 
 Covenants implied in partition. General covenants of war- 
 ranty are implied in a partition between co-parceners at common 
 law, but not in a partition between joint tenants and tenants in 
 common, the remedy in the latter case being by bill in equity 
 against the co-tenant for contribution. 71 And though, in case of 
 a deed of partition between co-parceners, covenants of Avarranty are 
 implied wherever the common law remains unchanged, the ex- 
 istence of such covenants is of little practical importance, owing to 
 the more convenient remedy by bill in equity for contribution. 72 
 
 Covenants implied from recitals in a deed. No covenants are 
 implied from the mere recitals of a deed, such as that the premises 
 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. 73 
 
 138. PARTIES BOUND AND BENEFITED. ]So 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 
 
 "Mayor v. Mabie, 3 Kern. (N. Y.) 151. 
 
 70 Co. Litt. 51b. 384; Rawle Covts. (5th ed.) 270. Gamble v. McClure,. 
 69 Pa. St. 282, obiter, the parties having executed separate deeds of bargain 
 and sale. 
 
 "Rawle Covts. (5th ed.) 277, 278. 
 
 "Walker v. Hall, 15 Ohio St. 355; 86 Am. Dec. 482. Sawyers v. Cator, a 
 Humph. (Tenn.) 256; 47 Am. Dec. 608. 
 
 "Whitehill v. Gottwalt, 3 Pen. & W. (Pa.) 327. Ferguson v. Dent, 8 Mo. 
 673. Rawle Covts. (5th ed.) 280, 297.
 
 COVENANTS OF WARRANTY AND FOE QUIET ENJOYMENT. 345 
 
 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. 74 
 
 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 ehe were sole, she has been held liable upon her cove- 
 nants for title, and in still other States there are statutes which 
 provide 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 
 her covenants for title, while in others such relief is denied the 
 covenantee. 75 In a State in which she is bound by her covenants, 
 it has been held that parol evidence is not admissible to shoAv that 
 she joined in the deed merely for the purpose of barring her in- 
 choate marital estate in the land conveyed. 76 
 
 139. Heirs and devisees. It was necessary at common law 
 that an heir be expressly named in the covenant of the ancestor in 
 order that he might he held liable for the breach. 77 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 
 
 'Bowling v. Benge, (Ky.) 55 S. W. Rep. 422. 
 
 "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 the 
 contract liabilities of married women for the cases and authorities upon that 
 subject. In Minnesota, under a statute allowing a married woman to con- 
 tract in reference to her separate estate as if she were a feme 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 N. 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. Semple v. Wharton, 68 Wis. 626 ; 32 N. W. 
 Rep. 690. Pyle v. Gross, 92 Md. 132; 48 Atl. Rep. 713; Webb v. Holt, 113 
 Mich. 338; 71 N. W. Rep. 637. 
 
 78 Security Bank v. Holmes, 68 Minn. 538; 71 N. W. Rep. 699. 
 
 " Co. Litt. 209a.
 
 346 MARKETABLE TITLE TO BEAL ESTATE. 
 
 of assets received by him from the estate of the ancestor, 78 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 he held 
 liable until the personal estate has been exhausted." At common 
 law covenant might be maintained against the heir upon the war- 
 ranty 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 de- 
 cedents and armed 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 deter- 
 mination 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. 80 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.* 1 
 
 "See the statutes of the several States. Whitten v. Krick, 31 Ind. App. 
 577; 68 N. E. Rep. 694. An heir or devisee is liable on the covenants of the 
 ancestor or testator to the extent of the personal as well as the real estate 
 which has come to his hands. Ross v. Perry. 49 N. H. 549. Where a breach 
 of covenant has occurred after the death of the covenantor, and his estate 
 nas been fully administered, the covenantee will not be driven to a new ad- 
 ministration and suit against the administrator d. 6. n.. but may sue the 
 heirs direct, and have judgment against them to the extent of assets received 
 by them from their ancestor. Walker v. Deaver, 79 Mo. 664. If an heir 
 apparent convey with warranty and then dies before the ancestor, the heirs 
 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 
 nr devisees can, of course, be held liable only for his acts, and not for claim? 
 to which the covenant did not extend. Gittings v. Worthington, 67 Md. 139; 
 9 Atl. Rep. 228. 
 
 "Royce v. Burrell, 12 Mass. 399. See, also, caces cited Rawle Covts. for 
 Title (5th ed.), p. 520, note 3. 
 
 " Rex v. Creel, 22 W. Va. 373. 
 
 "Beall v. Taylor, 2 Grat. (Va.) 532: 44 Am. Dec. 398.
 
 COVENANTS OF WARRANTY AND FOE QUIET ENJOYMEWT. 347 
 
 Where a father, being possessed of a contingent remainder, con- 
 veyed the fee with general warranty, under the impression that his 
 estate vested, and afterwards his estate was determined by the hap- 
 pening 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. 82 
 
 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 con- 
 struction, the breach occurred in the testator's lifetime. And by 
 subsequent statutes the action was exended so as to embrace 
 breaches occurring after the testator's death. 83 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, 84 and words of severance will be required to render one 
 liable only for his own acts. 85 A covenant by A. and B. that " they 
 will warrant generally the land," etc., is a joint and several cove- 
 nant, and both will be liable for the full amount of the damages in 
 case of eviction. 86 If two persons convey each an undivided moiety 
 of certain premises, and one of them enters into limited or re- 
 stricted covenants, and the other covenants generally, the latter, in 
 
 w Whitesides v. Cooper, 115 N. C. 570; 20 S. E. Rep. 295. 
 
 83 Rawle Covts. (5th ed.) ch. 13. If it be uncertain whether a person is 
 bound on a covenant of warranty as devisee or as a personal representative, 
 it is error to enter up judgment against him in both capacities. Johns v. 
 Hardin, (Tex.) 16 S. W. Rep. 623. 
 
 S4 Platt on Covts. 117; Rawle on Covts. (5th ed.) 304; 1 Wms. Saunders, 
 154, n. Donohue v. Emery, 9 Met. (Mass.) 67; Comings v. Little, 24 Pick. 
 (Mass.) 266. But see Redding v. Lamb, 81 Mich. 318; 45 N. W. Rep. 947. 
 
 "As in Evans v. Saunders, 10 B. Mon. (Ky.) 291, where the conveyance 
 was by four heirs, and each covenanted for his separate and undivided share 
 separately to defend. See, also. Fields v. Squires, 1 Deady (C. C.), 366. 
 Bardell v. Trustees, 4 Bradw. (111.) 94. 
 
 "'Click v. Green, 77 Va. 827. Donohue v. Emery, 9 Met. (Mass.) 67. 
 Platt on Covts. part 1, ch. 3, 2.
 
 348 MABKETABLE TITLE TO REAL ESTATE. 
 
 case of an eviction under a title not embraced by the limited cove- 
 nants, 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. 87 
 
 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. 88 
 
 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 in- 
 testate. 89 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. 90 In one of the States, 
 at least, a trustee, empowered to convey with warranty, 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. 91 A crstui que 
 trust cannot be sued upon the covenants of the trustee. 92 
 
 A grantor who held the legal title merely for the purpose of 
 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. 93 
 
 87 Sutton v. Bailey, 65 Law Times Rep. 528. 
 
 88 Bush v. Cooper, 18 How. (U. S.) 82. Waggle v. Worthy, 74 Cal. 266; 15 
 Pae. Rep. 831. Wight v. Gottschalk (Tenn.), 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. 
 
 91 Thurmond v. Brownson, 69 Tex. 597 ; 6 S. W. Rep. 778. 
 "Haran v. Stratton, 120 Ala. 145; 23 So. Rep. 81. 
 M Deaver v. Deaver, 137 N. C. 240; 49 S. E. Rep. 113.
 
 COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 349 
 
 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 cove- 
 nants. 94 
 
 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. 95 
 
 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 
 power 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. 96 
 
 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 breach is a chose in action, which passes, 
 like other personal assets, to the executor or administrator. 37 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. 98 
 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 
 
 "Cent. Appalachian Co. v. Buchanan, 90 Fed. Rep. 454. 
 95 Rutherford v. Montgomery, 14 Tex. Civ. App. 319; 37 S. W. Rep. 625. 
 88 Harrison v. Palo Alto Co., 104 Iowa, 383; 73 N. W. Rep. 872. 
 ""Grist v. Hodges, 3 Dev. L. (N". C.) 201. Wilson v. Peete, 78 Ind. 384. 
 "Pence v. Duval, 9 B. Mon. (Ky.) 48.
 
 350 MARKETABLE TITLE TO KEAL ESTATE. 
 
 has been held liable upon his own warranty of the same premises 
 to a subsequent grantee." The covenant of warranty, in form, 
 undertakes to warrant and defend the grantee, " his heirs and 
 assigns," against the claims of all persons, etc., but it is not neces- 
 sary that either the heirs 1 or assigns 2 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 chapter. Tenants in common, holding 
 under the same deed as grantees, have several freeholds, and may 
 sue separately for breach of the covenant of warranty. 3 A tenant 
 dower, who is evicted, cannot maintain an action on a warranty 
 in the conveyance to her husband. The right of action passes to 
 the husband's representatives, and her remedy is by a new assign- 
 ment of dower. 4 
 
 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. 6 In either case, the breach must result from the acts of one 
 having a better title to the premises than the covenantor. An evic- 
 tion or disturbance of the possession by a trespasser, a mere wrong- 
 doer, or a person having a defeasible claim to the premises, does 
 not amount to a breach of either covenant. In other words, as has 
 been frequently said, the covenant of warranty and the covenant 
 
 "See post, 153, 160. 
 
 *2 Sugd. Vend. 577. Lougher v. Williams, 2 Lev. 92. 
 
 2 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. (N. Y.) 339. The contrary has been held in North Carolina, 
 Smith v. Ingram, 130 N. C. 100; 40 S. E. Rep. 984. 
 
 'Lamb v. Danforth, 59 Me. 322; 8 Am. Rep. 426. 
 
 4 St. Clair v. Williams, 7 Ohio, 396. 
 
 Kent Com. 558 (473), <$ aeq.; 3 Washb. Real Prop. ch. 5, 5; Rawle 
 Covt. for Title (5th ed.), ch. 8. If the grantee with covenant for quiet enjoy- 
 ment be let into possession, the covenant is not broken merely because the 
 grantor turns out to have had 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 coven- 
 antee be evicted, the covenant for quiet enjoyment is of course broken. 
 Parker v. Richardson, 8 Jones L. (N. C.) 452.
 
 COVENANTS OF WARRANTY AND FOE QUIET ENJOYMENT. 351 
 
 for quiet enjoyment are not broken by a tortious disturbance or 
 eviction. 6 
 
 Neither are they broken by a collusive eviction; 7 as where 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. 8 
 
 The cases deciding that a tortious disturbance is no breach of the 
 covenant for quiet enjoyment have, in most instances, arisen be- 
 tween 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. 9 Therefore, 
 where the leased premises had formerly been a house of ill-repute, 
 
 2 Sugd. Vend. (8th Am., ed.) 271 (600); Washb. Real Prop. 427; Rawle 
 Covts. (5th ed.) 127; Taylor Landlord & Tenant, 304, et seq. Wotton v. 
 Hele, 2 Saund. 177, leading case; Howell v. Richards, 11 East, 833, 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. 
 (N. Y.) 395; Beddoe v. Wadsworth, 21 Wend. "(N. Y.) 120; Kelly v. Dutch 
 Church, 2 Hill (N. Y.), 105. Spear v. Allison, 20 Pa. St. 200; Schuylkill & 
 Dauphin R, Co. v. Schmoele, 57 Pa. St. 275. Rantin v. Robertson, 2 Strobh. 
 L. (S. C. ) 366, case of personal property. Underwood v. Birchard, 47 Vt. 
 305. The covenantee cannot recover in an action for breach of warranty the 
 value of timber wrongfully taken from the lanH by one having no valid claim 
 to the land. Mclnnis v. Lyman, 62 Wis. 191. An illegal tax sale and re- 
 demption therefrom constitutes no breach of the covenant against incum- 
 brances, nor, it is apprehended, of the covenant of warranty. Cummings v. 
 Holt, 56 Vt. 384. Evidence that certain persona 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 con- 
 veyance from such grantee, is insufficient evidence of an eviction under 
 paramount title, since, for aught that appears to the contrary, those in 
 possession may be mere trespassers. Jenkins v. Hopkins, 8 Pick. (Mass.) 
 346. 
 
 7 Davis v. Smith, 5 Ga. 247 ; 48 Am. Dec. 279. 
 
 Frix v. Miller, 115 Ala. 476; 22 So. 146. See post 202. 
 
 Kimball v. Grand Lodge, 131 Mass. 59, 63, citing Ellis v. Welch, 6 Mass. 
 246; 4 Am. Dec. 122; Shearman v. Williams, 113 Mass. 4S1. Gardner v. 
 KetelUs, 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.
 
 352 MARKETABLE TITLE TO REAL ESTATE. 
 
 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. 10 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, 11 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. 12 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 for years in the premises, or, in fact, any estate less 
 than a fee simple, the covenant is broken, and a right of action 
 ensues. 13 Upon the principle that the covenant of warranty is not 
 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. 14 
 
 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," 
 
 10 Meeks v. Bowerman, 1 Daly (N. Y.), 99. 
 
 "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 aa 
 agreement with the grantor or lessor, this will constitute a breach. West 
 v. Stewart, 7 Pa. St. 123. 
 
 13 University v. Joslyn, 21 Vt. 52. 
 
 "Rickert v. Snyder, 9 Wend. (N. Y.) 420. 
 
 "Post, 142. Butterworth v. Volkening, 4 Thomp. & C. (N. Y.) 650. 
 
 15 2 Sugd. Vend. (8th Am. ed.) 272 (600); Rawle Covt. (5th ed.) 128. 
 Corus Case, Cro. Eliz. 544. Crosse v. Young, 2 Show. 415. Sedgewick Y. 
 Hollenback, 7 Johns. (N. Y.) 376; Dyett v. Pendleton, 8 Cow. (N. 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 hi6 
 own land so as to encroach on the adjoining demised premsies, this is a 
 breach of the covenant for quiet enjoyment. Sherman v. Williams, 113 Mass. 
 481. Giving out that the covenantee has no right to premises, and bringing 
 suits against him and his tenants, in consequence of which the tenants quit 
 the premises, and the covenantee is unable to rent them, amounts to an
 
 COVENANTS OF WARRANTY AND FOE QUIET ENJOYMENT. 353 
 
 and were not mere trespassers. 16 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. 17 If the covenant be against the claims of all persons 
 whatsoever, it will, as we have seen, be restricted to the acts of 
 persons having lawful claims, j8 but if the covenant be expressly 
 against all pretending to claim, 19 or against the acts of designated 
 persons, 20 it will embrace tortious disturbances by such pretenders 
 or persons named. 
 
 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 therof, 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 N. Y. 514; 
 Kdgerton v. Page, 20 N. Y. 281; Randall v. Albertis, 1 Hilt. (N. Y.) 285; 
 Drake v. Cockroft, 4 E. D. Smith (N. Y.) 34; Levy v. Bond, 1 E. D. Smith 
 (N. Y.), 169; Campbell v. Shields, 11 How. Pr. (N. Y.) 564; Ogilvie v. Hall, 
 5 Hill (N. Y.), 52; Doupe v.'Genin, 1 Sweeny (N. Y. S. C.), 25, 30, obiter. 
 'Cassada v. Stabel, 90 N. Y. Supp. 533; 98 App. Div. 600; Bennett v. Bittle, 
 4 Rawle (Pa.), 339; A very v. Dougherty, 102 Ind. 443; 2 N. E. Rep. 123; 
 Slayback v. Jones, 9 Ind. 470, semble. Hayner v. Smith, 03 111. 430; 14 Am. 
 Rep. 124. IJurtlett v. Farrington, 120 Mass. 284. 
 
 "Codrington v. Denham, 35 N". Y. Super. Ct. 412. Moore v. Weber, 71 Pa. 
 St. 429; 10 Am. Rep. 708. A covenant for quiet enjoyment is not broken by 
 Ihe refusal of the lessor to shore up the walls of the leased premises to pre- 
 A-ent them from falling while an adjoining building is being removed, by 
 reason of which refusal the premises are rendered uninhabitable. Such re- 
 fusal 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. 
 
 "Chaplain v. Southgate, 10 Mod. 383. 
 
 10 2 Sugd. Vend. (8th Am. ed.) 271 (600) ; Rawle Covts. f5th 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 distur- 
 bance from him, whether from Inwful title or otherwise. If the warranty be 
 against the claim of a particular 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. 
 
 23
 
 354 MARKETABLE TITLE TO KEAL ESTATE. 
 
 143. Eminent domain and acts of sovereignty. The cove- 
 nants of warranty and for quiet enjoyment do not embrace acts of 
 sovereignty, 21 such, for example, as the exercise of the right of emi- 
 nent domain. 22 The organic law of each State provides that pri- 
 vate property shall not be taken for public purposes without com- 
 pensation, and the covenantee is protected by provisions for the in- 
 demnity of the owners of the appropriated lands made in pursuance 
 
 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 aucli 
 claims as they make without legal foundation or right. 
 
 " 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. 
 
 " Ellis v. W 7 elch, 6 Mass. 246 ; 4 Am. Dec. 122, leading case ; Bumnier v. 
 Boston, 102 Mass. 19; Boston Steamboat Co. v. Manson, 117 Mass. 34, semble* 
 Patterson v. Arthur, 9 Watts (Pa.), 152; Bellinger v. Society, 10 Pa. St. 
 135; Dobbins v. Brown, 12 Pa. 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. Schmoerle, 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. Knhn v 
 Freeman, 15 Kans. 423; Gummon v. Blaisdell, 45 Kans. 221; 25 Pac. Rep. 
 580. Stevenson v. Loehr, 57 111. 509; 11 Am. Rep. 36. Dobbins v. Brown, 
 12 Pa. St. 79, where it was said by GIBSON, 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 entiy 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 un- 
 reasonable as to imply it. The entry of the public agents, and the occupancy 
 of the ground, were not a breach of the warranty."
 
 COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 355 
 
 of this law. 23 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. 24 In 
 one case it was held that the covenant of warranty was not broken 
 by condemnation of the premises to public uses, though the cove- 
 nantor had, before the execution of the deed, released all claim to 
 damages. 25 The purchaser must also take notice of public statutes 
 restricting the use of the granted premises ; and such restrictions 
 constitute no breach of the covenant of warranty. 26 Upon a some- 
 what similar principle, it has been held that the covenant does not 
 extend to the acts of a newly formed State in restricting the owner- 
 ship 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. 27 
 
 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. No rule or principle of the law of 
 
 "Frost v. Earnest, 4 Whart. (Pa.) 86. Ellis v. Welch, 6 Mass. 246; 4 
 Am. Dec. 122. Folts v. Huntley, 7 Wend. (N. Y.) 210. 
 
 14 Ellis v. Welch, 6 Mass. 246 ; 4 Am. Dec. 122. Frost v. Earnest, 4 Whart. 
 (Pa.) 86. 
 
 "Dobbins v. Brown, 12 Pa. St. 75. This is 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. Loehr, 57 111. 509; 11 Am. Rep. 36, it was held that if the 
 condemnation transpired after the sale but before the conveyance, the vendor 
 would hold the damages in trust for the vendee, and would be accountable 
 therefor. 
 
 M Neeson v. Bray, 19 N. Y. Supp. 841. 
 
 "Feurer v. Stewart, 83 Fed. Rep. 793.
 
 356 MARKETABLE TITLE TO REAL ESTATE. 
 
 warranty has been more frequently declared than this. 28 Xor does 
 the covenant of warranty, independently of statute, include a cove- 
 
 - 8 Kent Cora/472; 2 Lorn. Dig. 762; Rawle Covts. (5th ed.) 131. Barlow 
 v. Delaney, 40 Fed. Rep. 97, Northern Pac. R. Co. v. Montgomery, 86 Fed. 
 Rep. 251. Caldwell v. Kirkpatrick, 6 Ala. 62; 41 Am. Dec. 36. Oliver T. 
 Bush, 125 Ala. 534; 27 So. Rep. 923. Beebe v. Swartwout, 3 Gil. (111.) 180; 
 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 Cuah. 
 (Mass.) 453. Wilty v. Hightower, 12 Sm. & M. (Miss.) 478. Troxell T. 
 Johnson, 52 Neb. 46; 71 N. W. Rep. 968; Troxell v. Stevens, 57 Neb. 329; 
 77 N. W. Rep. 781; Merrill v. Suing, 66 Neb. 404; 92 N. W. Rep. 618. Kent 
 v. Welch, 7 Johns. (N. Y.) 258; 5 Am. Dec. 266, leading case; Vanderkarr 
 v. Vanderkarr, 11 Johns. (N. Y.) 122; Kelly v. Dutch Church, 2 Hill 
 (N. Y.), 105; Greenvault v. Davis, 4 Hill (N. Y.), 643; Fowler v. Poling, C 
 Barb. (N. Y.) 165; Blydenburg v. Cotheal, 1 Duer (N. Y.), 195. Inderlied T. 
 Honeywell, 84 N. Y. Supp. 333; 88 App. Div. 14'4. Bender v. Fromberger, 
 4 Dall. (Pa.) 436; Clarke v. McAnulty, 3 S. <fe R. (Pa.) 364; Patton T. 
 jlcParlane, 3 P. & W. (Pa.) 422; Dobbins v. Brown, 12 Pa. St. 75; Stewart 
 v. West, 14 Pa. St. 336. Allison v. Allison, 1 Yerg. (Tenn.) 16; Ferris r. 
 Harshea, Mart. & Yerg. (Tenn.) 54; 17 Am. Dec. 782; Stuart v. Nelson, 4 
 Hayw. (Tenn.) 200; Crutcher v. Stunjp, 5 Hayw. (Tenn.) 100; Young T. 
 Butler, 1 Head (Tenn.) 648. Contra, Talbot v. Bedford, Cooke (Tenn.) 447. 
 Findlay T. Toncray, 2 Rob. (Va.) 374, 379; Marbury v. Thornton, 82 Va. 
 374; 1 8. E. Rep. 909; Jones v. Richmond, (Va.) 13 S. E. Rep. 414. Osburm 
 v. Pritehard, 104 Ga. 145; 30 S. E. Rep. 656; Bedell v. Christy, 62 Kan. 760; 
 64 Pa6. Rep. 629. In Clarke v. McAnulty, 3 Serg. & R. (Pa.) 364, it was 
 said fcy GIBSON, J. : " The covenant of warranty protects only against a* 
 ouster from the possession, and there can, therefore, be no breach of it 
 assigned 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 be inevitable. It is unnecessary to cite cases to 
 this point, the difference between a covenant of warranty and of seisin being 
 recognized as existing in England and our sister States." An apparent 
 exception to the rule stated in the text will be found in Daggett v. Reas, 70 
 Wis. 60; 48 X. W. Rep. 127, where it was held that a covenant of warranty 
 was broken by an oustanding tax title in a stranger. This, however, was 
 upon the ground that recording the tax deed constructively vested the pos- 
 session 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 a 
 superior title outstanding in a stranger. Pringle v. Witten, 1 Bay (S. C.), 
 254; 1 Am. Dec. 612; Bell v. Higgin, 1 Bay (S. C.), 326; Sumter v. Welch, 
 2 Bay (S. C.), 558; Mackay v. Collins, 2 Nott & McC. (S. C.) 186; 10 Am. 
 Dec. 586; Moore v. Lanham, 3 Hill L. (S. C.) 304; Mitchell v. Vaughan, 2 
 Brev. L. (S. C.) 100. But see Jeter v. Glenn, 9 Rich. L. (S. C.) 377, and,
 
 COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 357 
 
 nant against incumbrances, 29 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. 30 The statute of limitations 
 does not run upon a covenant of warranty until there has been an 
 eviction. 31 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. 32 An action upon a cove- 
 nant of warranty is an action upon a specialty, and governed by 
 the statute of limitations applicable to specialties. 33 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." 3 
 Such a bond imposes a greater obligation than a covenant of seisin, 
 or for quite enjoyment, and, it has been intimated, is not merged 
 or extinguished by the acceptance of a deed. 35 
 
 post, 190. The same rule existed in Texas, with this qualification, namely, 
 that the purchaser must have bought without notice of the outstanding title. 
 Doyle v. Hord, 67 Tex. 662 ; 4 S. W. Rep. 241 ; Groesbeck v. Harris, 82 Tex. 
 411; 19 S. W. Rep. 850; since overruled in Land Co. v. North, 92 Tex. 72; 45 
 S. W. 904. See, also, Huff v. Reilly, (Tex. Civ. App.) 64 S. W. 387. In 
 Pence v. Gabbert, 63 Mo. App. 302, it was held that the covenantee, who had 
 not been actually evicted, could not recover substantial damages though judg- 
 mene establishing a paramount title to an undivided half of the property, 
 and also a judgment for mesne profits, had been recovered against him, and 
 he had paid the latter judgment. 
 
 M Leddy v. Enos, (Wash.) 33 Pao. Rep. 508. Boreel v. Lawton, 90 N. Y. 
 293; Hebler v. Brown, 41 N. Y. Supp. 441. 
 
 Jackson v. McCauley, 13 Wash. 298; 43 Pac. 41. 
 
 "Crisfield v. Storrs, 36 Md. 129; 11 Am. Rep. 480; N. Pac. R. Co. v. Mont- 
 gomery, 86 Fed. 251; Foshay v. Shafer, 116 Iowa, 302; 89 N. W. Rep. 1106; 
 Wiggins v. Pender, 132 N. C. 628; 44 S. E. Rep. 362; Shankle v. Ingram, 133 
 N. C. 254 ; 45 S. E. 578. Chenault v. Thomas, 26 Ky. Law R. 1029 ; 83 S. W. 
 Rep. 109. Cheney v. Straube, 35 Neb. 521 ; 53 N. W. Rep. 479. 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 conveyance 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 Neb. 296; 86 N. W. Rep. 1097. 
 
 "Foshay T. Shafer, 116 Iowa, 302; 89 N. W. Rep. 1106. 
 
 "Kern T. Kloke, 21 Neb. 529; 32 N. W. Rep. 574. 
 
 "Anderson v. Washabaugh, 43 Pa. St. 118. 
 
 "Rawle Covts. (5th ed.) 289, note 2. See post, 269.
 
 358 MABKETABLE TITLE TO REAL ESTATE. 
 
 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. 36 
 
 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 the warranted estate, either by a peaceable entry and dis- 
 seisin on the part of him who has the superior title, 37 of by the of- 
 ficers of the law in pursuance of process issued on a judgment 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 decision, and the 
 covenantee expelled from the premises by possessory process. 38 
 But the weight of authority establishes the rule that a lawful ex- 
 pulsion 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. 39 An 
 eviction or ouster in pais must, of course, be established by parol 
 evidence. 40 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. 41 
 
 **Kans. Pac. R. Co. v. Dunmeyer, 19 Kan. 543; Brown v. Allen, 10 N. Y. 
 Supp. 714; McGary v. Hastings, 39 Cal. 360; 2 Am. Rep. 456. This exception 
 does not apply where the grantee is in possession under title derived through 
 a defective railroad grant of public lands, and has taken steps to perfect his 
 title as a bona fide purchaser by procuring a patent from the government, 
 under an act passed for the relief of such purchasers. Burr v. Greeley, 52 
 Fed. Rep. 926. 
 
 "As in Hodges v. Latham, 98 N. C. 239; 3 S. C. Rep. 495. Here the 
 covenantee left the premises for a short time, and upon his return found 
 them in the possession of one claiming under a paramount title. 
 
 38 Stewart v. Drake, 4 Halst. (N. J. L.) 141. Lansing v. Van Alsytne, 2 
 Wend. (N. Y.) 563, obiter; Hunt v. Amidon, 4 Hill (X. Y.) 345; 40 Am. 
 Dec. 283, obiter. 
 
 "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. 
 
 "Booker v. Bell, 3 Bibb (Ky.), 173} 6 Am. Dec. 641. Randolph v. Meeks, 
 Mart. & Yerg. (Tenn.) 58. 
 
 "Booker v. Bell, 3 Bibb (Ky.), 173; 6 Am. Dec. 641.
 
 359 
 
 An entry by a 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. 42 And a delivery 
 of seisin by the sheriff to a judgment creditor of the grantor in 
 satisfaction of an execution on the judgment is an eviction and 
 breach of the covenant of warranty. 43 
 
 Of course there will be no breach of the covenant of warranty if 
 the grantee be evicted under an incumbrance which he assumed to 
 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. 44 An 
 assignment of dower by metes and bounds in the warranted prem- 
 ises and the placing of the widow in possession is, of coarse, an 
 eviction and breach of the covenant of warranty. 45 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. 46 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 affect the title or pos- 
 session of the purchaser. 47 
 
 The term " eviction " does not mean, in all cases an absolute 
 expulsion of the covenantee from the land. The existence and 
 
 "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. 
 
 4 *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. 
 
 "Lamb v. Baker, (Neb.) 52 N. W. Rep. 285. 
 
 45 Johnson v. Nyce, 17 Ohio, 66; 49 Am. Dec. 444. Davis v. Logan, 5 B. 
 Mon. (Ky.) 341. Lewis v. Lewis, 4 Rich. L. (S. C.) 12. 
 
 "Blanchard v. Blanchard, 48 Me. 174. 
 
 47 Smith v. Dixon, 27 Ohio St. 471.
 
 360 MARKETABLE TITLE TO KEAL ESTATE. 
 
 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. 48 
 
 146. 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 the possession 
 to one having a better title, in order to avoid an inevitable expul- 
 sion from the premises. Without the* one or the other of these 
 conditions there cannot be a constructive eviction. 49 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 01 the claimant. The claimant 
 can do no more towards the assertion of his title than to hold pos- 
 session, 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. 60 
 
 "Rea v. Minkler, 5 Lans. (N. Y.) 196; Eller v. Moore, 63 N. Y. Supp. 88; 
 48 App. Div. 403. 
 
 "Boreel v. Lawton, 90 N. Y. 293; 43 Am. Rep. 170; Mead v. Stackpole, 4O 
 Hun (N. Y.), 473. 
 
 "Platt Covts. 327; 2 Lorn. Dig. 269; Rawle Covts. (5th ed.) 138. Clark 
 v. Harper, 6 Vin. 427; Hacket v. Glover, 10 Mod. 143; Ludwell v. Newman, 
 
 6 Term Rep. 453. Duval v. Craig, 2 Wh. (U. S.) 45. Banks v. Whitehead, 
 
 7 Ala. 83; Crawford v. Pendleton, cited 7 Ala. 84. Prestwood v. McGowan, 
 128 Ala. 267; 29 So. Rep. 386; McMullan v. Butler, 117 Ga. 845; 45 S. E. 
 Rep. 258. Moore v. Vail, 17 111. 185. Small v. Rives, 14 Ind. 164. Barnett 
 v. Montgomery, 6 T. B. Mon. (Ky.) 328. Curtis v. Deering, 12 Me. 499. 
 Fritz v. Pusey, 31 Minn. 368. Wilty v. Hightower, 12 Smed. & M. (Miss.) 
 478. Murphy v. Price, 48 Mo. 247; Blondeau v. Sheridan, 81 Mo. 545. 
 Rickets v. Dickens, 1 Murph. (N. C.) 343. Shankle v. Ingram, 133 N. C. 254; 
 45 S. E. Rep. 578. Wetzel v. Richcreek, (Ohio) 40 N. E. Rep. 1004. Ran- 
 dolph v. Meek, Mart. & Yerg. (Tenn.) 524; Bradley v. Dibrell, 3 Heisk. 
 
 (Tenn.) 524. Park v. Bates, 12 Vt. 381; 36 Am. Dec. 347; Pitkin T. 
 Leavitt, 13 Vt. 379; Brown v. Taylor, 13 Vt. 631; 37 Am. Dec. 618; Clark T. 
 Conroe, 38 Vt. 469; University v. Joslyn, 21 Vt. 52; Smith v. Scribner, 59 
 Vt. 96; 7 Atl. Rep. 711. Sheffey v. Gardener, 79 Va. 313. Rex v. Creel, 22 W. 
 Va. 373. McConaughay v. Bennett, 50 W. Va. 172; 40 S. E. Rep. 540. Shat- 
 tuck v. Lamb, 65 N. Y. 499; 22 Am. Rep. 656, citing dicta from Withers 
 v. Powers, 2 Sandf. Ch. (N. Y.) 350, and Winslow v. McCall, 32 Barb. 
 (N. Y.) 241. See, also, Gardner v. Keteltas, 3 Hill (N. Y.), 332; 38 Am. 
 Dec. 637; Grannis v. Clark, 8 Cow. (N. Y.) 36. At one time a contrary
 
 COVENANTS OF WAEBANTY AND FOB QUIET ENJOYMENT. 361 
 
 But an adverse possession in a stranger will not amount to a 
 breach of warranty unless he holds under a title superior to that of 
 the covenantee. 51 An inchoate possessory title, which may ripen 
 into a perfect title under the statute of limitations, will not amount 
 to a constructive eviction. The covenant of warranty is, as we 
 have seen, against the claims only of those who have lawful right. 
 The covenantee must show that he was in fact unable to get pos- 
 session from one holding under color of title. The mere occu- 
 pancy of the premises by a stranger without showing under whom 
 he claims, nor what efforts had been hade to obtain possession from 
 him, is insufficient. 52 And if the covenantee, by his own laches, 
 suffer an imperfect and inferior title in one occupying the land 
 adversely to ripen into a perfect title under the statute, he cannot 
 recover on the warranty. 53 It is not necessary to constitute 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 
 
 doctrine prevailed in the State of New York. Kortz v. Carpenter, 5 Johns. 
 (N. Y.) 120; St. John v. Palmer, 5 Hill (N. Y.), 601. But the rule there now 
 is that stated in the text. Shattuck v. Lamb, supra. Where land conveyed 
 wag described as bounded " by land of M., by a line through the center of the 
 wall," and the wall was wholly on M.'s land, it was held that the covenant or 
 warranty was broken. Cecconi v. Rodden, 147 Mass. 164; 16 N. E. Rep. 749. 
 As to whether party wall is a breach of covenant against incumb'ranccs, see 
 ante, p. 296. Ejectment brought by the covenantee against the adverse claim- 
 ant, and a successful defense by the latter, will give the covenantee the same 
 right to an action on the warranty that an eviction would. Cummins v. 
 Kennedy, 3 Litt. (Ky.) 118; 14 Am. Dec. 45. But the fact that a suit to 
 establish title to leased premises, in which the lessor is plaintiff, is decided 
 adversely to him, is no breach of a covenant for quiet enjoyment, there being 
 no disturbance of the lessee's possession. Hayes v. Ferguson, 15 Lea {Tenn.), 
 1 ; 54 Am. Dec. 398. For dicta or intimations contrary to the rule stated in 
 the text, see Holder v. Taylor, Hob. 12, and Day v. Chism, 10 Wh. (U. S.) 
 452, and the early New York cases, cited supra, this section. 
 
 "Noonan v. Lee, 2 Bl. (U. S.) 499, 507. Phelps v. Sawyer, 1 Aik. (Vt.) 
 157. Playter v. Cunningham, 21 Cal. 232, a case in which a lessee of the prop- 
 erty refused to give up the possession at the expiration of his term. It 
 devolved upon the covenantee to eject him. 
 
 "Barry v. Guild, 126 111. 439; 18 N. E. Rep. 759. In this case there was a 
 derrick and tool house on the premises which were occupied by a stone com- 
 pany, but it did not appear that the company laid any claim to the land or 
 that the plaintiff had made any effort to get possession and judgment was 
 rendered for the defendant. 
 
 "Rindskop v. Trust Co., 58 Barb. (N. Y.) 49.
 
 362 MARKETABLE TITLE TO REAL ESTATE. 
 
 well as to the title. Therefore, if a stranger be in possession of the 
 premises, holding as tenant for life 54 or for a term of years, 55 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. 56 
 
 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, 57 and the grantee may maintain trespass against 
 any one entering on the land. 58 If the title is defective the grantee 
 will have no right of action on the grantor's covenant of warranty 
 
 64 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 dower at the time of the conveyance, the warranty is 
 broken as soon as made. Citing Porter v. Noyes, 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. 
 
 "Reckert v. Snyder, 9 Wend. (N. 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. 
 
 M 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 N. H. 
 370. In McLennan v. Prentice, 85 Wis. 427, it appeared that the premises 
 were vacant and there was nothing to prevent the covenanter from taking 
 possession, except the occupation of a part of the premises by a railroad em- 
 bankment 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 covenantee. 
 
 58 Jackson v. Sellick, 8 Johns. (N. Y.) 262; Van Rensselaer v. Van Rens- 
 selaer, 9 Johns. (N. Y.) 377. Mather v. Tremty, 3 S. & R. (Pa.) 514; 8 Am. 
 Dec. 663.
 
 COVENANTS OF WARRANTY AND FOE QUIET ENJOYMENT. 363 
 
 until the true owner or some one claiming under him has actually 
 entered upon and taken possession of the premises, 59 or until his 
 rights have been judicially established against the grantee. 60 A 
 mere sale of the premises to a stranger by the true owner will not 
 amount to a constructive eviction. 61 
 
 148. Surrender of 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, 62 or to 
 
 89 Wood v. Forncrook, 3 Thomp. & C. (N. Y.) 303; St. John v. Palmer, 5 
 Hill, (N. Y.) 601. Moore v. Vail, 17 111. 190. But see Mclnnis v. Lyman, 62 
 Wis. 191 ; 22 N. W. Rep. 405, 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, 116 Wis. 
 44; 92 N. W. Rep. 437. 
 
 "Allis v. Nininger, 25 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. Shaw, N. C. Term Rep. 197; 7 Am. Dec. 106, it 
 was held that a recovery of damages in trespass against the grantee for cut- 
 ting down timber on the warranted premises, which were unoccupied, amounted 
 to a breach of the covenant of warranty. 
 
 "Hamilton v. Lusk, 88 Ga. 520; 15 S. E. Rep. 10. Green v. Irving, 54 
 Miss. 450; 28 Am. Rep. 360. Matteson v. Vaughn, 38 Mich. 373. Loomis v. 
 Bedel, 11 N. H. 74. 
 
 "2 Wait's Act. & Def. 389; Rawle Covts. (5th ed.), 134; 2 Greenl. Ev., 
 244; 7 Am. & Eng. Encyc. of L. 36. Dupuy v. Roebuck, 7 Ala. 484, 488; 
 Davenport v. Bartlett, 9 Ala. 179; Griffin v. Reynolds, 17 Ala. 198; Gunter 
 v. Williams, 40 Ala. 572; Heflin v. Phillips, (Ala.) 11 So. Rep. 729. Prest- 
 wood v. McGowan, 128 Ala. 267; 29 So. 386. McGary v. Hastings, 39 Cal. 
 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. McMullen v. Butler Co., 117 
 Ga. 845; 45 S. E. 258. Moore v. Vail, 17 111. 185; Brady v. Spruck, 27 HI. 
 478; Owen v. Thomas, 33 111. 320; Harding v. Larkin, 41 111. 422; Claycomb 
 v. Munger, 51 111. 378. Reasoner v. Edmundson, 5 Ind. 395; Mason v. Cook- 
 sey, 51 Ind. 519; Axtel v. Chase, 83 Ind. 546; Bever v. North, 107 Ind. 544; 
 8 N. 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 Mass. 
 349; 3 Am. Dec. 222, leading case. Ogden v. Ball, 40 Minn. 94; 41 N. W. Rep. 
 453. Wagner v. Finnegan, 65 Minn. 115; 67 N. W. Rep. 795. Hall v. Bray, 
 51 Mo. 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 
 Neb. 372; Real v. Hollister, 17 Neb. 661. Drew v. Towle, 10 Post. (N. H.) 
 531; 64 Am. Dec. 309. Greenvault v. Davis, 4 Hill (N. Y.), 643; Fowler v.
 
 364 MABKETABJLE TITLE TO BEAL, ESTATE. 
 
 wait until the true owner forcibly ejects him, or until he is turned 
 out by the shoulders under legal process. 63 " The law does not 
 require the idle and expensive ceremony of being turned out by 
 legal process, when that result would be inevitable." 64 There is no 
 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. 65 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. 66 A few cases may be found inclining 
 to the view that a voluntary surrender of the possession to an 
 
 Poling, 6 Barb. (N. Y.) 165; Stone v. Hooker, 9 Cow. (N. Y.) 157; Home 
 Life Ins. Co. v. Sherman, 46 N. Y. 373; Hyman v. Boston Chair Manfg. Co., 
 58 N. Y. Super. 282; 11 N. Y. Supp. 52. Parker v. Dunn, 2 Jones L. (N. 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 
 (Tenn.), 137. Peck v. Hensley, 20 Tex. 673. 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 covenant of warranty, 
 though he had voluntarily yielded to a dispossession, provided the title to 
 which he yielded was a good title and paramount to that of the warrantor; 
 and, upon mature reflection and examination of the authorities, we are satis- 
 fied that such is the law. Why should the vendee be compelled 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? 
 None that we can conceive of, and we are, therefore, of opinion that the cove- 
 nantee has the right to purchase in the incumbrance or outstanding title, and 
 sue the warrantor upon his covenant." In Allis v, Nininger, 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 under it, and the covenantee is obliged to yield and 
 does yield his claim to such superior title, the covenant to warrant and 
 defend is broken. To such circumstances, we may, for the sake of convenience, 
 apply the term eviction." 
 
 Stewart v. West, 14 Pa. St. 336. 
 
 'Clark v. McAnulty, 3 S. & R. (Pa.) 372. 
 
 ^BBOWNSON, J., in Greenvault v. Davis, 4 Hill (N. Y.), 643. 
 
 Sterling v. Peet, 14 Conn. 254.
 
 COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 365 
 
 adverse claimant is not such an eviction as amounts to a breach of 
 the covenant of warranty. 67 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 
 constructive eviction. 68 
 
 The surrender of possession must be made to the adverse claim- 
 ant. The covenantee cannot, on failure of title, return the prem- 
 ises to the covenantor and -maintain an action for breach of the 
 covenant of warranty. 69 
 
 A mere judgment in ejectment against the covenantee, unaccom- 
 panied by a surrender of the possession, is not an eviction, and, 
 therefore, not a breach of the covenant of warranty. 70 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 pur- 
 chased his rights and remained in possession under his title. 71 Of 
 
 "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 
 cannot surrender the possession \o 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 was in fact paramount. Huff v. Cumber- 
 land Val. Land Co., (Ky.) 30 S. W. Rep. 660 (not officially reported). 
 
 ** Poyntell v. Spencer, 6 Pa. St. 254. An execution levied on land under a 
 judgment against the covenantor and seisin and possession delivered to the 
 judgment creditor is an eviction and a breach of the covenant of warranty, 
 though there be no actual amotion of the covenantee from the premises by 
 reason of his attorning to the creditor. Gore v. Brazier, 3 Mass. 523 ; 3 Am. 
 Dec. 182. An entry upon a mortgaged estate to foreclose upon breach of con- 
 dition is, without actual ouster, an eviction for which a warrantor can 
 recover upon his covenant. Furnas v. Durgin, 119 Mass. 500; 20 Am. Rep. 341. 
 
 "Axtel v. Chase, 83 Ind. 546. 
 
 'Clement v. Collins, 59 Ga. 124; Davis v. Smith, 5 Ga. 274; 47 Am. Dec. 
 279; McDowell v. Hunter, Dudley (Ga.), 4. 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. (N. 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. 
 
 71 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 brok"eh by the covenantor's failing to defend the
 
 366 MARKETABLE TITLE TO HEAL ESTATE. 
 
 course, a mere action of ejectment cannot amount to a breach of 
 the covenant of warranty until it results in an action or virtual 
 eviction of the grantee. 72 A voluntary abandonment of possession 
 by the covenantee after judgment in ejectment will not be con- 
 strued an eviction, unless possession of the premises be thereafter 
 taken by the plaintiff in ejectment. 75 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 covenantee will amount 
 to a breach of the warranty, though it has not resulted in an actual 
 ouster. 74 But a covenantee who voluntarily paid off such a judg- 
 ment, pending proceedings by the covenantor to have it set aside, 
 is not entitled to recover on the warranty. 75 A judgment in eject- 
 title. See, also, Chandler v. Brown, 59 N. H. 370. And in Woodward v. Allen, 
 3 Dana (Ky. ), 164, it was broadly declared that a judgment against the cove- 
 nantee 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 
 ejectment plaintiff, or purchased his title. But see Boyd v. Bartlett, 36 Vt. 
 9, where the broad rule that a recovery in ejectment againsi 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 Eep. 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 N. Y. Supp. 121, it was held that the Statute of Limitations 
 began to run upon a covenant of warranty as soon as judgment in ejectment 
 against the covenantee was entered, which necessarily gives to the judgment 
 the effect of an eviction. 
 
 "Miller v. Avery, 2 Barb. Ch. (N. Y.) 582. Hooker v. Folsom, 4 Ind. 90. 
 Schuylkill Jt Dauphin R, Co. v. Sehmoele, 57 Pa. St. 271. Park v. Bates, 12 
 Vt. 381 ; 36 Am. Dec. 347, in so far as it holds that a suit commenced by an 
 adverse claimant against the grantee to recover the possession, is a breach oi 
 the covenant of warranty, is disapproved in Beebe v. Swartwout, 3 Gilm. 
 (111.) 168. The lessee of a right to drill oil and gas wells, who was enjoined 
 by a grantee of the coal under the land, the grant reserving to the grantor 
 the right to drill oil and gas wells, and who compromised the injunction by 
 payment of a sum of money, was held not entitled to recover on the lessor's 
 covenant for quiet enjoyment. Chambers v. Smith, 183 Pa. St. 122; 38 Atl. 
 Rep. 522; citing Duff- Wilson, 69 Pa. St. 316. 
 
 "Hagler v. Simpson. 1 Busbee (N. C.). 384. 
 
 "Leary v. Durham, 4 Ga. 593. 
 
 Tuggle v. Hamilton, 100 Ga. 292.
 
 COVENANTS OF WAREANTY AND FOE QUIET ENJOYMENT. 367 
 
 ment for the alternative value of the premises, without improve- 
 ments, if the plaintiff should elect to accept the same instead of 
 possession, has been held a constructive eviction and breach of 
 warranty. 76 A judgment in ejectment against the covenantee 
 where he remains in possession under the " occupying claimants 
 act " pending assessment of the value of his improvements, will 
 not amount to a constructive eviction. 77 Nor will such a judgment, 
 entered by consent of parties, have that effect. 78 
 
 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. 79 
 
 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 ad- 
 verse claimant. 80 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. 81 It has been held that a 
 sale of the premises by the adverse claimant does not amount to a 
 hostile assertion of his title. 82 An exception to this rule has been 
 
 "Mason v. Kellogg, 38 Mich. 132. 
 
 "Lundgren v. Kerkow, (Neb.) 95 N. W. Rep. 501. 
 
 "Vincent v. Hicks, 23 Ky. Law R. 859; 64 S. W. 456. 
 
 "Ellis v. John Crossley's Sons, 119 Fed. 779. 
 
 * Morgan v. Hannibal & St. J. R. Co., 63 Mo. 129. Funk v. Creswell, 5 
 Clarke (Io.), 62. Fritz v. Pusey, 31 Minn. 368; 18 N. W. Rep. 94. Moore 
 v. Vail, 17 111. 185. Brown v. Corson, 16 Oreg. 388; 19 Pac. Rep. 66. 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. 
 
 M Green v. Irving, 54 Miss. 450 ; 28 Am. Rep. 360. Matteson v. Vaughn, 38 
 Mich. 373. Loomis v. Bedel, 11 N. 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.
 
 OOO MARKETABLE TITLE TO REAL ESTATE. 
 
 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. 83 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 
 purchase of such title, does not apply where the title is outstanding 
 in the United States. 84 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. 85 
 So, also, the cancellation of a defective entry of the premises under 
 the public land laws. 86 
 
 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, 87 unless the surrender was made after judgment in eject- 
 ment against himself w r hich the grantor was requested to defend. 8 * 
 
 * Glenn v. Thistle, 23 Miss. 42 ; Green v. Irving, 54 Miss. 450 ; 28 Am. Rep. 
 360. Brown v. Allen, 57 Hun (N. Y.), 219; 10 N. Y. Supp. 714. McGary T. 
 Hastings, 39 Cal. 368; 2 Am. Rep. 445G. 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. 
 
 "Kans. Pac. R. Co. v. Dunmeyer, 19 Kans. 543. Barr v. Greeley, 52 Fed. 
 Rep. 926, obiter. Herington v. Clark, 56 Kans. 644; 44 Pac. Rep 624; Hollo- 
 way v. Milder, 84 Miss. 776; 36 So. Rep. 531. 
 
 "Harr v. Shaffer, 52 W. Va. 207 ; 43 S. E. Rep. 89. 
 
 "Giddings v. Holter, 19 Mont. 263; 48 Pac. Rep. 8. 
 
 " Hamilton v. Cutts, 4 Mass. 349, 353; 3 Am. Dec. 222. Greenvault v. 
 Davis, 4 Hill (N. Y.), 643. Lambert v. Estes, 99 Mo. 604; 13 S. W. Rep. 284. 
 Freymoth v. Nelson, 84 Mo. App. 293. Snyder v. Jennings, 15 Neb. 372; 
 19 N. W. Rep. 501 ; Cheney v. Straube, 35 Neb. 521 ; 53 N. W. Rep. 479, and 
 62 N. W. Rep. 234. Westrope v. Chambers, 51 Tex. 178. Moore v. Vail, 17 
 111. 190. Crane v. Collenbaugh, 47 Ind. 256. Brandt v. Foster, 5 Clarke ( lo. ) , 
 287; Funk v. Creswell, 5 Clarke (lo.), 62; Thomas v. Sticle, 32 Iowa, 71. 
 Hester v. Hunnicutt, (Ala.) 16 So. Rep. 162. In this case the covenantee 
 had incited the surrenderee to set up a claim to the premises. 
 
 "* Post, 175. A judgment against the covenantor in an action against 
 him bv the covenantee, is not conclusive on the original covenantor. Mc- 
 Crillis v. Thomas, 85 S. W. Rep. 673; 110 Mo. App. 679 aff'd.
 
 COVENANTS OF WARRANTY AND FOE QUIET ENJOYMENT. 369 
 
 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 he surrenders the premises to one against whom he could 
 have successfully pleaded the statute of limitations if he had been 
 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. 89 
 
 We have seen that a mere judgment in ejectment or other pos- 
 sessory action against the covenantee is not equivalent to eviction. 90 
 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. ~No duty devolves upon 
 the covenantee to appeal from the judgment. 91 
 
 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, 92 but they have been frequently 
 overruled or disapproved, and are no longer regarded as authority. 98 
 
 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 
 
 "Britten v. Ruffin, 122 N. C. 113; 28 S. E. Rep. 963. 
 
 "Ante, 148. 
 
 91 Sever 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. 
 
 M Webb v Alexander, 7 Wend. (N. Y.) 286; Lansing v. Van Alstyne, 2 
 Wend. (N. Y.) 563, note; Waldron v. McCarty, 3 Johns. (N. Y.) 473. 
 
 93 Greenvault v. Davis, 4 Hill ( N. Y. ) , 645, and cases cited, supra, p. 343, n. 
 24
 
 370 MARKETABLE TITLE TO REAL ESTATE. 
 
 subserved by requiring evidence of an actual dispossession of the 
 grantee. On the contrary he is benefited by the purchase, for 
 thereby he is saved the expense which would be incurred by the 
 grantee in defending the title. 94 
 
 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. 95 This he may do without violating any duty which 
 he owes to the covenantor. Accordingly, where the warranted 
 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 pos- 
 session, 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. 96 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, and it 
 is no defense to an action on the covenant that he knew of the out- 
 
 "Loornis v. Bedel, 11 N. H. 74. Lane v. Fury, 31 Ohio St. 574. 
 
 "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; McConnell v. Downs, 48 111. 271; 
 Cluycomb v. Hunger, 51 111. 378. Mooney v. Burchard, 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. Folz, 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. Mc- 
 Kinney, 5 Lea (Tenn.), 499. Denson v. Love, 58 Tex. 4G8. Haffcy v. 
 Birchetts, 11 Leigh (Va.), 83, 88. Turner v. Goodrich, 26 Vt. 708. Potwin 
 v. Blasher, 9 Wash. 460; 37 Pac. Rep. 710. Pritchett v. Redick, 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. 
 
 "Hanson v. Buckner, 4 Dana (Ky.), 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; 54 S. W. Rep. 717.
 
 COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 371 
 
 standing right at the time he took the conveyance and might have 
 acquired such right for a trifling sum. 97 
 
 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. 98 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 surrender to the holder thereof, is insufficient to 
 establish an eviction ;" but the rule as stated prevails now, it is be- 
 lieved, in that State, 1 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 pur- 
 chasing 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 ap- 
 plication to such a case. 2 It is not necessary for the covenantee to 
 show that he has actually paid the price of the outstanding title. 
 
 "Kimball v. Saguin, (Iowa) 53 N. W. Rep. 116. 
 
 "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. 
 
 "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 Mo. 564. Hannah v. Henderson, 4 Ind. 174; Reasoner v. 
 Edmundson, 5 Ind. 393. 
 
 1 Beyer v. Schulze, 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 he 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. 
 
 * George v. Putney, 4 Cush. (Mass.) 355; 50 Am. Dec. 788; Greeno v. 
 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. McAuley, 13 Wash. 298; 43 Pac. Rep. 41.
 
 372 MARKETABLE TITLE TO REAL ESTATE. 
 
 It is sufficient if an obligation to pay, and the time and manner in 
 which payment is to be made, appear. 3 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. 4 
 
 The discharge of a prior incumbrance in order to prevent an 
 inevitable eviction, is also a constructive breach of the covenant of 
 warranty. 5 This covenant is broken by lawful eviction, whether 
 under an incumbrance or a paramount title, and the discharge of 
 the incumbrance to prevent eviction, is as much a constructive 
 eviction as a purchase of the outstanding title for the same pur- 
 
 3 Hooper v. Sac Co. Bank, 72 Iowa, 280; 33 X. W. Rep. 681; Royer r. 
 Foster, 62 Iowa, 322; 17 X. W. Rep. 516. 
 
 4 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 exist- 
 ing interests of the grantor as well as those of the grantee. 
 
 "Estabrook v. Smith, 6 Gray (Mass.), 557; 66 Am. Dec. 443; Whitney Y. 
 Densmore, 6 Cush. (Mass.), 128; Bemis v. Smith, 10 Met. (Mass.), 194. 
 Collier v. Cowger, 52 Ark. 322; 12 S. W. Rep. 702. Stipe v. Stipe, 2 Head 
 (Tenn.), 171; Kinney v. Norton, 10 Heisk. (Tenn.), 388. Brown v. Dicken- 
 son, 12 Pa. St. 372, disapproving Waldron v. McCarty, 3 Johns. (N. Y.) 471. 
 Stewart v. Drake, 4 Halst. (X. J. L.), 139. Cole v. Lee, 30 Me. 392; Kellj 
 v. Lowe, 18 Me. 244. McLean v. Webster, (Kans.) 26 Pac. Rep. 10. Where 
 an incumbrance has ripened into an eviction and worked a breach of th 
 covenant of warranty, the liability upon that covenant and the covenant 
 against incumbrances, is substantially identical; the damages recovered under 
 either are for the eviction. Kramer v. Carter, 136 Mass. 504; Harringtoa 
 v. Murphy, 109 Mass. 299. In Kelly v.' Lowe, 18 Me. 244, it wa\? held that 
 the covenantee might recover the amount paid by him to remove an incum- 
 brance, under which he was liable to be evicted, though the payment was not 
 made until after his suit on the warranty was begun. The covenantee may 
 pay off a judgment binding the land, and hold the same as a set-off against 
 the purchase money, though, at the time of such payment, an execution had 
 been issued on the judgment, and levied on other lands subject to the lien. 
 Dunkleburger v. Whitehall, 70 Ind. 214.
 
 COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 373 
 
 pose. 6 The covenantor will not, in an action on the warranty, be 
 permitted to show that the purchaser agreed, by parol, to take sub- 
 ject to the incumbrance. The rule permitting the true considera- 
 tion of a deed to be shown does not extend thus far. 7 
 
 The purchase of an outstanding tax-title will not entitle the 
 grantee to recover on a covenant of warranty or a covenant of 
 seisin, if the tax-title be incapable of enforcement against the land. 
 The mere fact that the tax-title creates a cloud upon the title of 
 the covenantee affecting the market or loan value of the land, is no 
 ground on which he can recover. 8 
 
 151. Hostile assertion of adverse claim. We have seen that 
 a surrender of the premises to an adverse claimant will not amount 
 to a constructive eviction unless the adverse claim has been hostilely 
 asserted. The same rule applies to a purchase of the outstanding 
 title. The covenantee cannot search out adverse claims to the land 
 and buy them up in order to acquire a right of action against the 
 covenantor. Some particular act by which the covenantee is inter- 
 rupted must be shown. If he voluntarily buys in an adverse claim 
 or discharges an incumbrance, without previous demand upon him 
 having been made, he cannot recover as for a breach of warranty. 9 
 
 Bricker T. Bricker, 11 Ohio St. 240. Martin v. Atkinson, 7 Ga. 228; 50 
 Am. Dec. 403. Warren Stoddart (Idaho), 59 Pac. Rep. 540. The proposition 
 in the text seems clearly supported by the weight of authority in the United 
 States. But in New York it has been held that the redemption of land by the 
 covenantee from a tax sale, in order to prevent consummation of title in the 
 purchaser at the tax sale, did not amount to an eviction, and that the cove- 
 nantee could ot recover back the money so paid, either in covenant or in 
 assumpsit for money paid to the grantor's use. McCoy v. Lord, 19 Barb. 
 (N. Y.) 18. 
 
 'Bever v. North, 107 Ind. 545; 8 N. E. Rep. 576. Beach v. Packard, 10 Vt. 
 96; 33 Am. Dec. 185. 
 
 'Bruington v. Barber, (Kan.) 64 Pac. Rep. 963, where the tax-title bought 
 in by the grantee, having been on record for two years, could not be enforced 
 against the land (Gen. Stats. Kans., 1899, ch. 80). 
 
 Rawle Covts. (5th ed.), 55, 150. Sprague v. Baker, 17 Mass. 586, 590. 
 The voluntary payment of taxes by the covenantee assessed upon the war- 
 ranted land at the time of the conveyance, before any attempt is made to 
 collect the same, does not operate a breach of the covenant of warranty. 
 Leddy v. Enos, (Wash.) 33 Pac. Rep. 508. McGary v. Hastings, 39 Cal. 360; 
 2 Am. Rep. 456. Morgan v. Hannibal & St. ,T. R. Co.. 63 Mo. 129. Turner v. 
 Goodrich, 26 Vt. 708. In Coble v. Willborn. 2 Dev. L. (N. C.} HOO. 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 rijrht* of the plaintiff
 
 374 MARKETABLE TITLE TO REAL ESTATE. 
 
 But practically this rule is of little importance if the deed contains 
 also a covenant of seisin, for this covenant is absolutely broken as 
 soon as made if the title be outstanding; and in an action for the 
 breach the purchaser is entitled to recover as substantial damages, 
 the amount paid by him to get in the outstanding title. 10 So also 
 where the deed contains a covenant against incumbrances, and the 
 covenantee discharges or buys in an incumbrance on the estate. 11 
 
 The burden, of course, devolves upon the covenantee to show, in 
 an action on the warranty that the title thus purchased in, was par- 
 amount to that of the covenantor, 12 unless the purchase was made 
 after judgment against the covenantee in ejectment, or other pos- 
 sessory action, "which the covenantor was requested to defend. 18 
 
 The measure of damages which the purchaser may recover where 
 he buys in the outstanding title is hereafter considered. 14 
 
 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 in- 
 corporeal hereditaments incident or appurtenants thereto, so that 
 if the covenantee be deprived of any of these by one having law- 
 
 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. 
 
 u ld. Ante, 130. 
 
 12 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. 
 Furman v. Elmore, 2 Nott & McC. (S. C.) 189. In Lane v. Fury, 31 Ohio St. 
 574, the covenantee was compelled to proceed in equity to obtain a decree cor- 
 recting a defective acknowledgment of a conveyance by a married woman 
 under whom the covenantor held. Such a decree was rendered, and judgment 
 was also rendered in favor of the covenantee in ejectment against her by the 
 heirs of the woman who had executed the defective deed. These facts were 
 held sufficient to show a breach of the covenant of warranty. The proceed- 
 ing to reform the defective deed was treated as in substance a purchase or 
 getting in of the outstanding title. This case stands upon narrow grounds. 
 The covenant of warranty is against lawful claims only, and judgment having 
 been rendered both at law and in 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. 
 
 "Post, 177. 
 
 " Post, this chapter, 168.
 
 COVENANTS OF WARRANTY AND FOB QUIET ENJOYMENT. 375 
 
 ful right, the covenant is broken, and a right of action accrues. 
 The early case of Mitchell v. Warner 15 decided that the covenant 
 of warranty was not broken by the loss of an easement appurten- 
 ant to the premises, but this decision has been frequently overruled, 
 expressly or substantially, and the rule just stated may be regarded 
 as established by the weight of authority in America. 16 If, how- 
 ever, 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 damages 
 under covenants of warranty and quiet enjoyment, although the 
 grant was " with appurtenances." 17 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. 18 
 
 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. 19 Actual expulsion of the grantee from the whole 
 and every part of the land is not essential to a breach of these cove- 
 
 15 5 Conn. 497. 
 
 10 Rawle Covts. (5th ed.) J52, n. Wilson v. Cochran, 46 Pa. St. 233. 
 Kramer v. Carter, 136 Mass. 507. Adams v. Condver, 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. 
 
 "Green v. Collins, 86 N. Y. 246; 40 Am. Rep. 531. 
 
 18 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,. 
 
 "Giles v. Dugro, 1 Duer (N. 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.
 
 376 MAEKETABLE TITLE TO EEAL ESTATE. 
 
 nants; it is sufficient if there is a disturbance of the free and 
 uninterrupted use of the land by one having paramount title. 2 " 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. 21 Notice of the existence of the easement at the time of the 
 conveyance does not affect the right of the covenantee to recover 
 for the breach. 12 
 
 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. 23 
 
 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. Minkler, 5 Laos. 
 (N. Y.) 196. Browning v. Canal Co., 13 La. Ann. Ml. RUBS v. Steele, 40 Vt. 
 310; Clark v. Conroe, 38 Vt. 469. Butt v. Riffe, 78 Ky. 353. The covenant 
 for quiet enjoyment embraces an adverse claim to the 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. T.) 395. 
 
 "Rea T. Minkler, 5 Lans. (N. Y.) 196. 
 
 "Ross v. Steele, 40 Vt. 310. In Kramer v. Carter, 136 Mass. 504, the 
 breach of the covenant of warranty complained of was tlie existence of a 
 building restriction in a deed under which the plaintiff's grantor held, br 
 which the plaintiff was deprived of the full and complete enjoyment of the 
 premises. This was held a breach of the covenant of warranty if enforced, 
 the court saying : " But the easement was not only an incumbrance 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 was an incorporeal hereditament, a part of and taken out of the war- 
 ranted premises, and annexed and appurtenant to adjoining lauds, and form- 
 ing a part of the estate in them. The covenant of warranty extends to such 
 a right, and the right may be so exercised as to work a breach of the cove- 
 nant. * * * if the plaintiff had erected a building upon the land which i* 
 subject to the restriction, and the owners of the adjoining tenements had law- 
 fully demolished it. it would have been an eviction, and equally so whether 
 done by an act in pats, or by action at law, or by a suit in equity." 
 
 a Rea v. Minkler, 5 Lans. (X. Y.) 196. 
 
 "George v. Robison (Utah), 63 Pac. Rep. 819.
 
 COVENANTS OF WARRANTY AXD FOR QUIET ENJOYMENT. 377 
 
 153. COVENANTS OF WARRANTY AND QUIET ENJOYMENT 
 RUN WITH THE LAND. General rule. The covenants of war- 
 ranty and for quiet enjoyment 24 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. 25 
 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 under whom his grantor 
 claims, 29 and this, though the covenant of the remote grantor does 
 not in terms warrant the title to the " assigns " of the covenantee. 27 
 
 After breach the covenant can no longer run with the land, 
 nor have any existence except for the purpose of supporting an 
 
 "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. 
 
 25 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 T. Knight, 1 Barb. (N. Y.) 399; Blydenburgh v. Cotheal, 1 Duer (N. Y.). 
 176. Carter v. Denman, 3 Zab. (tf. J. L.) 260. Blackwell v. Atkinson, 14 
 Cal. 470. Brown v. Metz, 33 111. 339; 85 Am. Dec. 277; Crisfield v. Storr, 
 38 Md. 129; 11 Am. Rep. 480. Butler v. Barnes, 21 Atl. Rep. 419. Shelton 
 T. Codman, 3 Cush. (Mass.) 318; Whitney v. Dinsmore, 6 Cush. (Mass.) 128. 
 Swasey v. Brooks, 30 Vt. 692. Saunders v. Flaniken, 77 Tex. 664; 14 S. W. 
 Rep. 236'; Flaniken v. Neal, 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. 283. McConaughey v. Bennett, 50 W. Va. 172; 40 S. E. Rep. 540. 
 Wesco v. Kern (Oreg.), 59 Pac. Rep. 548. Libby v. Hutchinson, 72 N. H 
 190; 55 Atl. 547. Mitchell v. Warner, 5 Conn. 497. Scoffin v. Grandstaff, 
 12 Kans. 365. Susquehanna Coal Co. v. Quick, 61 Pa. St. 33ft. Williams 
 T. Beeman, 2 Dev. (N. C.) 483. Nunnally v. White, 3 Met. (Ky.)584. Aslier 
 Lumber Co. v. Cornett, 23 Ky. L. Rep. 602 ; 63 S. W. Rep. 974. In 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. 
 
 "Co. Litt. 384a; 2 Sugd. Vend. (8th Am. ed.) 196, 237. Beaseley v. Phil- 
 lips, 20 Ind. App. 182; 50 N. E. 488. 
 
 "Wiggins v. Pender, 132 N. C. 628; 44 N. E. Rep. 362.
 
 378 MARKETABLE TITLE TO REAL ESTATE. 
 
 action for damages on the part of the person having the right of 
 action at the time of the breach. 28 
 
 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. 29 
 
 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 
 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 disaffirmance 
 of the deed and eviction of the covenantee, or his assignee. Hence, 
 the covenant enures to the benefit of a remote grantee. 30 
 
 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. 31 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. 32 
 
 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. 33 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. 34 
 
 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 
 
 28 McConaughey v. Bennett, 50 W. Va. 172 ; 40 S. E. Rep. 540. 
 Smith v. Ingram, 132 N. C. 959; 44 S. E. Rep. 643; 61 L. R. A. 878. : , 
 "Pritchett v. Redick, 62 Neb, 296; 86 N. W. Rep. 1091. 
 31 McConaughey v. Bennett, 50 W. Va. 172; 44 S. E. Rep. 540. 
 M Ravenel v. Ingram, 131 N. C. 549; 42 S. E. Rep. 967. 
 "Hall v. Plaine, 14 Ohio St. 417. Harper v. Perry, 28 Iowa, 57. 
 "Dart on Vendors (5th ed.), 780. As to rights of a mortgagee, see post, 
 160.
 
 COVENANTS OF WARRANTY AND FOE QUIET ENJOYMENT. 379 
 
 him and the covenantor. He may, therefore, bring an action in 
 his own name to recover damages for a breach of the covenant. 15 
 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 
 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. 36 
 
 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 in- 
 curred if he had been sued by the original covenantee. 37 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. 3 * 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. 39 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 
 
 "Suydam v. Jones, 10 Wend. (N. Y.) 181; 25 Am. Dec. 552. McConaughey 
 v. Bennett, 50 W. Va. 172; 40 & E. Rep. 540; where held, also, that the 
 assignee could not sue in a court of equity. 
 
 "Ante, 110. 
 
 "3 Com. Dig. 262; Dart Vend. (5th ed.) 780; 2 Co. Litt. on p. 309; 2 
 Washb. Reap Prop. 662, citing 2 Sugd. Vend. (Hamm. ed.) 508. Dickinson 
 v. Hoomes, 8 Grat. (Va.) 353. Kane v. Sanger, 14 Johns. (N. Y.) 94. See, 
 also, Dougherty v. Duval, 9 B. Mon. (Ky.) 57. Field v. Squires, Deady 
 (U. S.), 366. Schofield v. Homestead Co., 32 Iowa, 317. Contra, 3 Prest. 
 Abst. 57. Perkins v. Hadley, 4 Hayw. (Tenn.) 148. McClure v. Gumble, 27 
 Pa. St. 288. 
 
 "Co. Litt. 385a; Touch. 199. Astor v. Miller, 2 Paige (N. Y.), 78; Van 
 Home v. Crain, 1 Paige (N. Y.), 455. Allen v. Little, 36 Me. 170. 
 
 "Paul v. Witman, 3 W. & S. (Pa.) 407.
 
 380 MARKETABLE TITLE TO REAL ESTATE. 
 
 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. 40 
 
 156. 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 benefit of the cove- 
 nant of warranty," 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. 42 Hence, it follows that the covenantee cannot separate 
 the covenant from the land by assigning the benefit thereof with- 
 out transferring the land ; 43 nor can he release the covenantor from 
 liability after he has transferred the land; 44 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. 40 When 
 the covenantee parts with the land he loses all control of the 
 
 "Whitzman v. Hirsh, 3 Pick. (Tenn.) 513; 11 S. W. Rep. 421. 
 
 "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. 
 
 42 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 en- 
 titled to the benefit of the covenant which it contains. It is because he takes 
 the estate and stands 4n the place of his vendor. Hopkins v. Lane, 9 Yerg. 
 (Tenn.) 84. 
 
 "Ely v. Hergesell, 46 Mich. 325. Lewis v. Cook, 13 Ired. L. (N. C.) 193. 
 Lawrence v. Senter, 4 Sneed (Tenn.), 52. 
 
 44 Middlemore v. Goodale, Cro. Car. 503. Suydam v. Jones, 10 Wend. 
 (N. Y.) 183; 25 Am. Dec. 552. Field v. Snell, 4 Gush. (Mass.) 504. Crocker 
 v. Jewell, 29 Me. 527; Littlefield 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 vrstaples, 28 Me. 497; 48 Am. Dec. 504. Thompson v. 
 Shattuck, 2 Met. (Mass.) 615. Chase v. Weston, 12 N. H. 413. 
 
 Rawle Covts. for Title, 221, 223. But see post. 162.
 
 COVENANTS OF WARRANTY AND FOE QUIET ENJOYMENT. 381 
 
 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, 46 unless he has made good 
 the breach to the party evicted. 47 
 
 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 im- 
 mediate conveyance to him, or any intermediate conveyance was 
 without warranty, since a mere quit claim or release is as effec- 
 tual to pass the rights of the original covenantee as a conveyance 
 with unlimited covenants for title. 48 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. 49 
 
 "Griffin v. Fairbrother, 1 Fairf. (Me.) 91; Crocker v. Jewell, 29 Me. 527. 
 
 "Post, 158. 
 
 "Bac. Abr. Letter N.; 1 Co. Inst. 384b. 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, 28 Me. 502; 48 Am. Dec. 504. 
 Beddoe v. Wadsworth, 21 Wend. (N. Y.) 120; Andrews v. Wolcott, 10 Barb. 
 (N. Y.) 23; Hunt v. Amidon, 4 Hill (N. Y.), 345; 40 Am. Dec. 283; Jenks 
 v. Quinn, 137 N. Y. 223; 33 N. E. Rep. 376. De Chaumont 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 Neb. 788; 71 N. W. 
 Rep. 737. Troxell v. Stevens, 57 Neb. 329; 77 N. W. Rep. 781. Ravenel v. 
 Ingram, 131 N. C. 549; 42 S. E. Rep. 967. But where A. B. and C. con- 
 veyed 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 main- 
 tain 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 by deed of warranty, seems an obiter 
 dictum. The action was by an assignee claiming under a quit-claim deed, 
 and the case was 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 recover because his assignment was by deed without war- 
 ranty, 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
 
 382 MARKETABLE TITLE TO REAL ESTATE. 
 
 An assignee by act of the law, such as one holding under the deed 
 of a sheriff or a commissioner is entitled to the benefit of cove- 
 nants 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, 50 
 except perhaps, in the single instance, of a purchaser at a tax 
 sale. 51 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. 52 
 
 158. Intermediate covenantee must have been damnified. 
 If there be several successive grantees of the land, an intermediate 
 grantee can maintain no action for a 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. 53 
 Hence, it follows that if the intermediate grantee conveyed wrth- 
 out warranty, so that no liability could devolve upon him for a 
 
 sufficient to pass 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 was 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- 
 cumbrances. 
 
 60 Shep. Touch, ch. 7, p. 572. Appowel v. Monnoux, Moore's Rep. 97. White 
 v. Whitney, 3 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. Williams v. Burg, 9 Lea 
 (Tenn.), 455. 
 
 "Rawle Covts. (5th ed.) 213. Kingdon v. Nottle, 4 Maule & S. 53. Smith 
 v. Perry, 26 Vt. 279. 
 
 "Bellows v. Litchfield, 83 Iowa, 36; 48 N. W. Rep. 1062; Crum v. Getting, 
 22 Iowa, 411. 
 
 "Alien v. Little, 36 Me. 170; Fairbrother v. Griffin, 10 Me. 96. Baxter v. 
 Ryerss, 13 Barb. (N. Y.) 267. Wheeler v. Sohier, 3 Cush. (Mass.) 219, dis- 
 approving 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, 
 61 Vt. 298; 17 Atl. Rep. 717. Hammerslough v. Hackett, 48 Kans. 700; 29 
 Pac. Rep. 1079. Contra in Texas, Alvord v. Waggoner (Tex. Civ. App.), 29 
 S. W. Rep. 797. 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 without warranty his grantee could have no recourse 
 against him for indemnity, though he might himself have recovered full 
 damages from the covenantor.
 
 COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 383 
 
 subsequent eviction from the premises, he can maintain no action 
 against the original covenantor for the breach. 54 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. 55 But this decision has been overruled 
 in the State in which it was rendered, 56 and frequently disap- 
 proved in others, 57 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. 58 In order to be " damnified " it is not necessary that 
 a judgment shall have been recovered against the intermediate 
 covenantee. He may voluntarily satisfy his grantee who has been 
 
 84 Hunt v. Middlesworth, 44 Mich. 448. Cases cited in last note, and Kane 
 v. Sanger, 14 Johns. (N. Y.) 89. The converse of this proposition, namely, 
 that if the covenantee himself conveyed with warranty he would be entitled 
 to recover against the covenantor on the ground 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. 57 below. 
 
 65 Kane v. Sanger, 14 Johns. (N. Y.) 89. 
 
 58 Withey v. Mumford, 5 Cow. (N. Y.) 137; Suydam v. Jones, 10 Wend. 
 (N. Y.) 184; 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. Bro\vn, 10 Ga. 319. Hopkins v. Lane, 9 Yerg. 
 (Tenn.) 79; Lawrence v. Senter, 4 Sneed (Tenn.), 52. 
 
 58 Cases cited supra, n. 37, p. 361. 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. In Booth v. Starr, 1 Conn. 248; 6 Am. Dec. 
 233, a leading case on this 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 
 covenantors till something has been done equivalent to an eviction, for 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 
 subsequent assignee, such intermediate assignee ought not to be allowed to 
 sustain his action till he has satisfied the subsequent assignee ; for other- 
 wise every intermediate covenantee might sue. the first covenantor ; one suit 
 would be no bar to another; they might all recover judgment and obtain 
 satisfaction, so that a man might be liable to sundry suits for the same thing, 
 and be compelled to pay damages to sundary different covenantees for the 
 same breach of covenant."
 
 384 MARKETABLE TITLE TO REAL ESTATE. 
 
 evicted, and then recover on the covenant of his grantor, taking, 
 however, the risk of having the latter establish the superiority of 
 his title. 59 
 
 159. Remote assignee may sue original covenantor. Th& 
 last grantee or assignee may maintain simultaneous actions against 
 each prior successive grantor who conveyed with warranty and 
 recover a several judgment against each; 60 but satisfaction of one 
 of the judgments will be satisfaction of all, and may be pleaded 
 in bar of any other other action on the covenant by the same 
 plaintiff, or by any subsequent covenantee to whom the party 
 making satisfaction may be liable, 61 even though the judgment 
 satisfied be less in amount than one recovered against such subse- 
 quent covenantee by the last grantee. 62 If the land came to the 
 party evicted through several successive conveyances with war- 
 ranty, he is not obliged to sue first his immediate covenantor, but 
 
 89 Herrin v. Mclntyre, 1 Hawkes (N. 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 los 
 of the right to recover the unpaid purchase money from his evicted grantee, 
 is overruled, it is apprehended, by the case cited supra, notes 3, 4, 5, p. 365. 
 
 80 Rawle Covt. 214. 
 
 61 King v. Kerr, 5 Ohio, 155 ; 22 Am. Dec. 777 ; Foots v. Burnett, 10 Ohio, 
 317; 36 Am. Dec. 90; Wilson v. Taylor, 9 Ohio St. &95; 75 Am. Dec. 488. 
 
 62 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 BBINKEBHOFF, 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 against all, but 
 the same rule of damages would apply as to all ; and although he could 
 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 his 
 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
 
 COVENANTS OF WARRANTY AND FOE QUIET ENJOYMENT., 385 
 
 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. 63 
 
 100. 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. 64 In equity, 60 however, and at law in such of the Amer- 
 
 tlie subsequent grantees, it seems to us that Weis' claim under all the cove- 
 nants must be held satisfied; and that all enforcement of the judgments 
 a gainst the other intermediate covenantors was wrongful and in violation of 
 the principle that he could have but 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 use 
 by the last grantee. 
 
 "Withey v. Mumford, 5 Cow. (N. Y.) 137; Garlock v. Cross, 5 Cow. 
 (N. Y.) 143. King v. Kerr, 5 Ohio, 158; 22 Am. Dec. 777. Booth v. Starr, 
 1 Conn. 248; 6 Am. Dec. 233. 
 
 "Lockwood v. Sturdevant, 6 Conn. 373; Cross v. Robinson, 21 Conn. 387. 
 Lloyd v. Quinby, 5 Ohio St. 262. Andrews v. Wolcott, 16 Barb. (X. Y.) 21; 
 Astor v. Miller, 2 Paige Ch. (N. Y.) 68; Varick v. Briggs, 6 Paige Ch. (N. Y.) 
 324. 111. Land Co. v. Boomer, 91 111. 114. Lane v. Woodruff (Kans. App.), 40 
 Pac. Rep. 1079. Harper v. Perry, 28 Iowa, 57 ; Rose v. Schaffner, 50 Iowa, 
 486; Devin v. Hendershott, 32 Iowa, 192. This was an action by the grantee 
 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 was 
 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 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 fall 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.) 
 
 45 Dart Vendors (5th ed.), 780; Rawle Covt. 219. Wesco v. Kern (Oreg.), 
 59 Pac. Rep. 548. 
 
 25
 
 MABKETABLE TITLE TO REAL ESTATE. 
 
 loan 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," 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.* 7 
 
 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.** 
 
 161. The original covenantor must have been actually seized. 
 It has been held in America, following an early English decision, 
 
 "Davidson v. Cox, 11 Xeb. 250; 9 X. W. Rep. 95. White v. Whitney, 3 Met. 
 (Mass.) 81. DOWXEB, J., in Wright v. Speny, 21 Wis. 334. Ely v. Hergeaell, 
 46 Mich. 325; 9 N. W. Rep. 435. 
 
 47 In Kavanagh v. Kingston, 39 Upp. Can. Q. B. 415, and Claxton T. Gilbert, 
 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 
 -ecure 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. 
 
 Hubbard v. Norton, 10 Conn. 433. Haynes v. Stevens, 11 X. H. 28. 
 
 "Xoke v. Awder, 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 be 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
 
 COVENANTS OF WARRANTY AND FOE QUIET ENJOYMENT. 387 
 
 ihat if one unlawfully in posession of an estate convey it with 
 warranty against the claims of the true owner and put his grantee 
 in possession, a subsequent grantee could not recover at law on 
 the warranty on the ground that no estate having passed by the 
 original covenantor's conveyance there was nothing with which the 
 covenant could run. 70 Obviously such a docrtine would destroy 
 ihe .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 en- 
 titled to the benefit of the covenant whether the original covenantor 
 was rightfully or wrongfully seised of the land. 71 It is a rule, 
 however, supported by the weight of American authority, that a 
 covenant of warranty does not enure to the benefit of an assignor 1 
 unless the original covenantor was actually seised and possession 
 
 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 ha 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 sides of the Atlantic for more than a century." Rawle Covt. 
 232, 236, citing Cuthbertson v. Irving, 4 Hurl. & Norm. 755; S. C., 1 
 Smith's L. Cas. 136. 
 
 70 Nesbit v. Nesbit, Conf. Rep. (N. C.) 403; Nesbit v. Brown, 1 Dev. Eq. 
 (N. C.) 30. BENNING, J., in Martin v. Gordon, 24 Ga. 533. 
 
 "Wilson v. Widenham, 51 Me. 566. Dickinson v. Hoomes, 8 Grat. (Va.) 
 353; Randolph v. Kinney, 3 Rand. (Va.) 397. Wallace V. Pereles, 109 Wis. 
 316; 85 N. 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, whicli 
 is indispensable for laying the ground of any action upon the. covenant of 
 warranty. Moore v. Merrill, 17 N. H. 75; 43 Am. Dec. 503. One cannot 
 be evicted if he has never had either actual or constructive possession of the 
 premises. Matteson v. Vaughn, 38 Mich. 373.
 
 388 MARKETABLE TITLE TO SEAL ESTATE. 
 
 passed from him to his grantee. 72 Upon a somewhat similar prin- 
 ciple it has been held that if A. convey an easement in the lands 
 of B. with covenants for title, a grantee of the covenantee could 
 not have the benefit of the covenants, for, no land having been 
 conveyed, the covenants could not " run with the land " in favor 
 of the assignee. 73 
 
 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 
 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 land, 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. 74 
 
 "Slater v. Rawson, 1 Met. (Mass.) 455. Hacker v. Storer, 8 Gr. (Me.) 
 228; McConaughey v. Bennett, 50 VV. 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 Avas 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 
 the decision in Slater v. Rawson, supra. 
 
 "Wheelgck v. Thayer, 16 Pick. (Mass.) 68. Disapproved in Wilson v. 
 Cochran, 46 Pa. St. 233. See Rawle Covts. (5th ed.) 207, n. 
 
 74 Mygatt v. Coe, 124 N. 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 mesne conveyances to the plaintiff, who was evicted by one having 
 title paramount to the defendant's wife, and who thereupon brought this 
 action on the covenants in the original deed executed by defendant and wife. 
 The court held that defendant (husband) being a stranger to the title, his 
 covenant of warranty did not run with the land, and that consequently there 
 could be no recovery against him. There was a learned dissenting opinion 
 by BRADLEY, J., with whom concurred HAIGIIT and BBOWN, JJ.
 
 COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 389 
 
 162. Assignee not affected by equities between covenantor 
 and covenantee. The assignee cannot, except in the case of a 
 release by the covenantee, be affected by any agreement between 
 the covenantor and the covenantee by which the liability of tho 
 former is lessened ; 75 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 ; 76 or that the consider 
 tion to be paid, should be less than that expressed in the convey- 
 ance containing the covenant. 77 There seems 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, 78 and has been held to be within a statute providing that a 
 deed concerning lands, tenements and hereditaments, must be 
 recorded in order to bind a subsequent purchaser without notice. 79 
 
 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. 80 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. 81 But in order that the reconveyance shall extin- 
 
 "Suydam v. Jones, 10 Wend. (N. Y.) 181; 25 Am. Dec. 552. Brown v. 
 Staples, 28 Me. 497 ; 48 Am. Dec. 504. Eveleth v. Crouch, 15 Mass. 307. 
 
 n Suydam v. Jones, supra. 
 
 "Greenvault v. Davis, 4 Hill (N. Y.), 643. 111. Land Co. v. Bonner, 91 
 111. 114. Hunt v. Orwig, 17 B. Mon. (Ky.) 73; 66 Am Dec. 144. 
 
 "Kellogg v. Wood, 4 Paige Ch. (N. Y.) 578. 
 
 n Susquehanna Coal Co. v. Quick, 61 Pa. St. 339. See, also, Field v. Snell, 
 4 Cush. (Mass.) 50. 
 
 88 Co. Litt. 490a; Bac. Abr. Warranty, O., p. 413. Goodel v. Bennett. 22 
 Wis. 565. Silvernian 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.
 
 390 MARKETABLE TITLE TO REAL ESTATE. 
 
 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. 82 Xeither is there a release of the covenant where 
 the reconveyance is made in a representative capacity only. 83 J^or 
 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. 84 
 
 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. 85 
 
 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. 86 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. 87 But a case in which the estate was sold 
 ;ind 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 
 
 "Bac. Abr. 451, n.; 1 Co. Inst. 393a; Prest. Touch. 201. Birney v. Hann, 
 3 A. K. Marsh. (Ky.) 322; 13 Am. Dec. 167. 
 
 "Curtis v. Hawley, 85 111. App. 429. 
 
 "Wiggins v. Fender, 132 X. C. 628; 44 N. E. Eep. 362; Wesco v. Kern 
 (Oreg.), 59 Pac. Rep. 548. 
 
 86 Williams v. Weatherbee, 1 Aik. (Vt.) 233. 
 
 "Sedg. Dam., p. 365. 
 
 17 Sedg. Dam., 1010. Ante, 97.
 
 COVENANTS OF WARRANTY AND FOE QUIET ENJOYMENT. 391 
 
 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; 88 and of the covenants of warranty and for 
 quiet enjoyment, 89 except that in certain of the New England 
 
 M As to executory contracts see ante, 90, as to the covenant of seisin, 
 ante, 116, and the cases cited in the following note. Except in certain of 
 the New England 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 Com. 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 cases arising 
 under the covenants of seisin and of warranty, and to treat the rule of dam- 
 ages with respect to each covenant separately, but the cases cited to the one 
 may be considered with profit in the examination of* the other. 
 
 " 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 GREEN, 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. 
 24<5; 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 (N. J. L.), 173; Drake v. Baker, 34 
 N. 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. (N. 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; McGuffey 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. El-
 
 392 MABKETABLE TITLE TO BEAL ESTATE. 
 
 States the covenantee is allowed the value of the estate at tin* 
 time of eviction, in case of a breach of the covenant of warranty 
 or for quiet enjoyment. 90 In those States, however, the rule of 
 damages for a breach of the covenant of seisin is the same as that 
 
 more, 2 Nott & McC. (S. C.) 189; Lourance v. Robertson, 10 S. C. 12. Davi* 
 v. Smih, 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. Clark v. Parr, 14 Ohio, 118; 
 45 Am. Dec. 529; McAlpin v. Woodruff, 11 Ohio St. 120. Stebbins v. Wolf, 
 33 Kans. 7C5; 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. McClurc, 05 Ind. 487; 
 Boatman v. Wood, 50 Ind. 403, right to interest on the purchase money. 
 Donlon v. P/vans, 40 Minn. 501; 42 N. W. Rep. 472, semble. Martin v. Long, 
 3 Mo. 391; Dunnica v. Sharp, 7 Mo. 71; Tong v. Matthews, 23 Mo. 437; 
 Lambert v. Estes, 99 Mb. 604; 13 S. W, Rep. 284. Blossom v. Knox, 3 
 Pinney (Wis.), 262 (3 Chand. 295) ; Conrad v. Trustees, 64 Wis. 258; 25 N. 
 W. 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 CAIJR, 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 a* 
 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- 
 struction. What is it that the seller warrants? the land itself. Does this 
 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 
 gold 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 were even in the contempla- 
 tion of the parties" 
 90 Post, 165.
 
 COVENANTS OF WARBANTY AND FOE QUIET ENJOYMENT. 393 
 
 Avhich. 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 
 of warrantia chartce in which he had restitution of other lands to 
 the amount of those which he had lost. Damages were not 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. 91 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. 92 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. 93 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 
 
 "Gore v. Brazier, 3 Mass. 523; 3 Am. Dec. 182. 
 
 M Hale v. New Orleans, 18 La. Ann. 321. 
 
 "Thus, in Haffey v. Birchetts, 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.
 
 MARKETABLE TITLE TO REAL ESTATE, 
 
 of the lands given in exchange, is the measure of damages on evic- 
 tion from the lands received in exchange." 
 
 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 upon the presumed intention of the parties.* 5 
 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.** 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,* 7 
 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 
 
 * Looney v. Reeves, 5 Kans. App. 279 ; 48 Pac. Rep. 606. 
 
 "Phillips v. Smith, Car. Law Rep. (N. C.) 475; 6 Am. Dec. 542, where it 
 was said that nothing could be 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 
 be secured also for the increase in value of the land and any improvements 
 he may put on it, let him insist on particular covenants expressly guaran- 
 teeing to him such increase and improvements." CARB, J., in Threlkeld v. 
 Fitzhugh, 3 Leigh (Va.), 462. BROXSOX, J., in Kelly v. Dutch Church, 2 
 Hill (N. Y.), 116. In Nesbit 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 be 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 v. Trustees, 64 Wis. 258 ; 25 N. W. Rep. 24.
 
 COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 395 
 
 the value of his permanent improvements as against the successful 
 claimant of the premises. 98 
 
 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." 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. 1 
 
 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 
 been completed by the purchaser, but the delay in that respect will 
 not entitle him to a larger measure of damages. 2 
 
 * In Cox v. Strode, 2 Bibb (Ky.), 278; 5 Am. Dec. 603, it was said by the 
 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." 
 
 Bender v. Fromberger, 4 Dall. (Pa.) 444. The measure of damages, where 
 the grantor pointed out incorrect boundaries, inclosing more land than he 
 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. 
 
 1 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 fovind 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. 
 
 * 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
 
 396 MARKETABLE TITLE TO REAL ESTATE. 
 
 Nominal 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. 3 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. 4 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 damages 
 for a breach of the covenant of warranty must be measured by the 
 consideration stated. 5 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. 6 
 The grantor is not relieved from liability on his covenant of war- 
 ranty by the fact that he received only a part of the consideration, 
 and that the other part went to a third person, who acted as his 
 agent for the sale of the premises. 7 If a valuable consideration 
 be in fact paid, the grantor wall be liable upon his warranty with- 
 out regard to the parties receiving the consideration, or the manner 
 of its appropriation. 8 And the fact that the grantor bought the 
 premises and, for the same consideration that he paid, conveyed 
 
 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 the 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." 
 
 3 West v. West, 76 N. C. 45. One to whom a deed, absolute on its face, is 
 xecuted 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 bona fide purchaser on a warranty contained in the 
 deed. He is bound to know that he has received such consideration as is 
 stated in the deed. Parke v. Chadwick, 8 W. & S. (Pa.) 96. 
 
 4 West v. West, 76 N. C. 45. 
 
 'Hanson v. Buckner, 4 Dana (Ky.), 254; 29 Am. Dec. 401. 
 McGuffey v. Humes, 85 Tenn. 26; 1 S. W. Rep. 506. 
 'Rash v. Jenne (Oreg.), 37 Pac. Rep. 538. 
 Bloom v. Wolfe, 50 Iowa, 286.
 
 COVENANTS OF WARRANTY AND FOE QUIET ENJOYMENT. 397 
 
 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. 9 
 
 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. 10 
 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. 11 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. 12 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; 13 in others, according to the rule in force 
 in the State in which the action is brought; 14 and in others, ac- 
 cording to the law of the place where the contract was made. 1 ' 
 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 
 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 upon 
 the land, and the grantee was evicted under an incumbrance 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 
 
 "Whatley v. Patten (Tex. Civ. App.), 31 S. W. Rep. 60. 
 
 10 Phillips v. Reichert, 17 Ind. 120; 79 Am. Dec. 463. Dimmick v. Lock- 
 wood, 10 Wend. (N. Y.) 142. 
 
 11 Leland v. Stone, 10 Mass. 459. 
 
 "Danforth v. Smith, 41 Kans. 146; 21 Pac. Rep. 168; Stebbins v. Wolf, 33 
 Kans. 765; 7 Pac. Rep. 542. 
 
 "Tillotson v. Pritchard, 60 Vt. 94; 14 Atl. Rep. 302. Succession of Cas- 
 sidy, 40 La. Ann. 827; 5 So. Rep. 292. 
 
 "Nichols v. Walter, 8 Mass. 243; Smith v. Strong, 14 Pick. (Mass.) 128. 
 
 "Aiken v. McDonald, (So. Car.) 20 S. E. Rep. 796. Looney v. Reeves, 
 5 Kans. App. 279; 48 Pac. Rep. 606.
 
 398 MARKETABLE TITLE TO REAL ESTATE. 
 
 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." 1 
 
 The failure of the grantee to take possession of the estate and 
 perfect the title by adverse possession, will not relieve the grantor 
 from liability upon his warranty. 17 
 
 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. 18 
 
 It will be 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 tue warranty as a defense. 19 So, conversely, 
 in an action by the grantee on the warranty the covenantor may 
 set off the unpaid purchase inonoy against the plaintiff's demand. 20 
 
 165. Rule in New England States. In the States of Massa- 
 chusetts, 21 Maine, 22 Vermont 23 and Connecticut, 24 the covenantee is 
 permitted to measure his damages upon a breach of the covenant 
 
 "Manahan v. Smith, 19 Ohio St. 384. 
 
 ^Graham v. Dyer (Ky.), 29 S. W. Rep. 346 (not officially reported). 
 
 "Looney v. Reeves, 5 Kan. App. 279; 48 Pac. Rep. 406. 
 
 "Post, ch. 16. 
 
 70 Beecher v. Baldwin, 55 Conn. 419 ; 12 All. Rep. 401. The court said that 
 the grantee, in claiming substantial damages, proceeded upon the theory that 
 she might require the vendor to make the title good, in which event she would 
 be obligated to pay the purchase money. 
 
 51 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. Rodden. 
 147 Mass. 164; 16 N. E. Rep. 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. 
 
 22 Sweet v. Patrick, 12 Me. 1; Hardy v. Nelson, 27 Me. 525; Elder v. True, 
 32 Me. 104. 
 
 = 3 Keeler v. Wood, 30 Vt. 242; 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 damages 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 die-
 
 COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 390 
 
 of warranty, by the value of the land at the time of his eviction. 
 The distinction which they make between the covenant of war- 
 ranty 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 para- 
 mount; 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. 25 If the eviction is constructive, as where the cove- 
 nan tee 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 measure of his 
 damages. 2 ' 
 
 An exception to the New 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. 
 Tn such a case the measure of his damages is the amount required 
 to redeem the land. 27 Were this not so the covenantee might 
 recover the full value of the estate as damages, and then repossess 
 
 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, 01 
 Conn. 399; 24 Atl. Rep. 328. 
 
 -'" 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. 
 i>20. These dicta have all been disapproved in later -cases. See ante, n. 80. 
 p. 391. Damages Tor the value at the time of eviction were also allowed or tin- 
 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. Elmorc. 
 2 Nott & McC. (S. C. ) 189. The consideration money with interest has since 
 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 breach <>i 
 covenant. In Jones v. Shay, 72 Iowa, 237; 33 N. W. Rep. 650, it was heM 
 error to award damages in excess of the purchase money, unless the plaint ill' 
 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, t 
 89; Thayer v. Clemence, 22 Pick. (Mass.) 490. Compare Lloyd v. Quimby, 
 "> Ohio St. 2H2.
 
 400 MARKETABLE TITLE TO REAL ESTATE. 
 
 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. 28 The reasons which 
 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. 29 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. 30 
 
 28 See the cases cited ante, note 89, p. 391. 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 is 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 meas- 
 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 seisin and a covenant 
 for quiet enjoyment, he can of course sue upon either, or if he sue upon both 
 lie 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 
 covenant for seisin and receives the consideration money, which is far more 
 than the property is then worth. If, however, it has increased in value, 
 judgment is entered on the covenant for quiet enjoyment." In Ware v. 
 Weatherall, 2 McC. (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 im- 
 provements 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." 
 
 2 * See the remarks of PARSONS, C. J., in Gore v. Brazier, 3 Mass. 545, 546 ; 
 3 Am. Dec. 182. 
 
 M 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.
 
 COVENANTS OF WARRANTY AND FOB QUIET ENJOYMENT. 401 
 
 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. 31 There are cases, however, which 
 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. 32 
 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. 33 
 
 "Alette 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 ia 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 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 
 vendee of such 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 con- 
 sideration paid by such vendor to the defendant. In other words, the 
 damages recovered were limited to the actual injury sustained. Williams 
 v. Beeman, 4 Dev. (N. C.) 483." Phillips v. Smith, 1 Car. Law Rep. 475. 
 Whitzman v. Hirsh, 3 Pick. (Tenn.) 513; 11 S. W. Rep. 421. Moore v. 
 Frankenfield, 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. 
 
 33 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. 
 
 :3 Dickson v. Desire, 23 Mo. 16G. Crisfield v. Storr, 36 Mel. 150; 11 Am. 
 Rep. 480. Rogers v. Golson, (Tex. Civ. App.) 31 S. W. Rep. 200. Taylor v. 
 Wallace, (Colo.) 37 Pac. Rep. 962. Where the purchaser resold the premises 
 
 26
 
 402 
 
 MARKETABLE TITLE TO HEAL ESTATE. 
 
 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. 34 It has been said that the only operation of the con- 
 sideration clause is to prevent a resulting trust in the grantor and 
 to estop him to deny the deed for the uses therein mentioned. 35 
 
 and directed the conveyance to be made to the sub-purchaser, which was done, 
 and the sub-purchaser was evicted, it was held that the measure of his 
 damages against the grantor was the price paid by him (plaintiff, sub- 
 purchaser) to the original purchaser, and not that which the latter was to 
 pay to the grantor. Cook v. Curtis, 68 Mich. 611; 36 N. W. Rep. 692. 
 
 "Bingham v. Weiderwax, 1 Const. (N. Y.) 509; McRea 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, 35' N. H. 127; Estabrook v. Smith, 6 Gray 
 (Mass.) 572; 66 Am. Dec. 443. Moore v. McKie, 5 Sm. & M. (Miss.) 238. 
 Swafford v. Whipple, 3 Gr. (lo.) 261; 54 Am. Dec. 498; Williamson v. Test, 
 24 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. Guinotte 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. 593. 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, 3 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 purchesed the 
 lot from the real owner, Dean, for $450, and caused him to convey it to 
 Staples with covenant of seisin, the deed expressing 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, 
 :ind the court held that the measure of damages 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 gener- 
 ally 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. McAnulty, 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 con- 
 veyance. Betts v. t-nion Bank, 1 Harr. & Gill (Md.), 175; 18 Am. Dec. 283.. 
 Wilt v. Franklin, 1 Binney (Pa.), 502; 2 Am. Dec. 474. 
 
 **Belden v. Seymour, 8 Conn. 304; 21 Am. Dec. 661.
 
 COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 403 
 
 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. 36 If no consideration be expressed in the deed, ex- 
 trinsic evidence may, of course, be resorted to for the purpose of 
 showing the purchase price. 37 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. 38 But parol evidence 
 cannot be received to show that at the time of the conveyance the 
 covenantee 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. 39 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. 40 
 
 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 
 
 "Greenvault v. Davis, 4 Hill (N. Y.), 647. 
 
 "Smith v. Strong, 14 Pick. (Mass.) 128. 
 
 Smith v. Strong, 14 Pick. (Mass.) 128. 
 
 "Estabrook v. Smith, 6 Gray (Mass.), 578; 46 Am. Dec. 443. Nutting v. 
 Herbert, 35 N. H. 264. Suydam v. Jones, 10 Wend. (N. Y.) 184; 25 Am. Dec. 
 552. 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 judgment against a third person, which the grantee 
 accepted as sole security for the title and agreed never to hold the grantor 
 liable on the covenant. And in Townsend y. Weld, 8 Mass. 146, it was held 
 that parol evidence is inadmissible to show that the conevantee was aware of 
 the defect of the covenantor's title and that he had ngreed that the cove- 
 nantor should not be charged in the event of an eviction. 
 
 "Rawle Covts. for Title (5th ed.), 174; Lloyd v. Sandusky, 203 111. 621 : 
 68 N. E. 154, a case in which the grantor was 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 nn excep- 
 tion of such coal and minerals had been omitted from the conveyance by 
 mistake. See, also, Rook v. Rook, 111 111. App. H08.
 
 MARKETABLE TITLE TO REAL ESTATE. 
 
 i 
 
 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. 41 
 
 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. 42 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. 43 " 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." 4 But he can in no case recover 
 damages in excess of the amount paid by him to the adverse claim- 
 ant, 45 or in excess of the purchase price of the land. 48 Prima 
 
 "Montgomery v. Northern Pac. R. Co., 67 Fe'd. Rep. 445. 
 
 42 Ante, 148. 
 
 "Mayne Dam. (Wood's ed.) 286; Field Dam. 378, et seq. Rawle Cort. 
 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. In Law- 
 less 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 consideration 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. (Ky.) 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. 
 
 "Donnell v. Thompson, 1 Fairf. (Me.) 176; 25 Am. Dec. 216. 
 
 45 Farmers' Bank v. Glenn, 68 N. C. 39 and cases cited in note 43 above. 
 Cox v. Henry, 32 Pa. St. 18. James v. Lamb (Tex.), 21 S. W. Rep. 172. 
 Bush v. Adams, 22 Fla. 177. 
 
 "Elliott v. Thompson, 4 Humph. (Tenn.) 98. McGary v. Hastings, 39 
 Cal. 360; 2 Am. Rep. 456. Richards v. Iowa Homestead Co., 44 Iowa, 304;
 
 COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 405 
 
 facie the covenantee has a right to recover damages to the amount 
 of the consideration expressed in the deed. It devolves upon the 
 defendant to show that the covenantee got in the outstanding title 
 at a price less than that sum. 47 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. 48 And he is 
 not only entitled to recover the sum paid to the holder of the 
 better title, but he may have back other necessary expenses in- 
 curred in acquiring the right of the true owner. 49 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. 59 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. 51 
 
 The rule that the covenantee can have credit only for the 
 amount paid by him to get in the outstanding title, and 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 ^vas public land title to which had never been divested 
 from the State. The reason for this doctrine is that the public 
 lands are not a lawful subject of private contract, and an at- 
 tempted 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 
 
 24 Am. Rep. 745. Clapp v. Herdman, 25 111. App. 509. Williams v. Thomas, 
 21 Ky. L. Rep. 1228; 54 S. W. Rep. 824. 
 
 47 Hunt v. Orwig, 17 B. Mon. (Ky.) 73; 66 Am. Dec. 144. 
 
 "Leffingwell v. Elliott, 10 Pick. (Mass.) 204; 19 Am. Dec. 343. 
 
 "Dillahunty v. Little Rock, etc., R. Co., 59 Ark. 699; 27 S. W. Rep. 1002, 
 and 28 S. W. Rep. 657. See, generally, the cases cited, ante, this section. 
 
 80 Richards v. Iowa Homestead Co., 44 Iowa, 304 ; 24 Am. Rep. 745. 
 
 "Norton v. Babcock, 2 Met. (Mass.) 510. Buck v. Clements, 16 Ind. 132. 
 Lloyd v. Quimby, 5 Ohio, 265. Stewart v. Drake, 4 Halst. (N. J.) 143. 
 Miller v. Halsey, 2 Gr. (N. J. L.) 48. Sanders v. Wagner, 32 N. J. Eq. 506.
 
 406 MARKETABLE TITLE TO BEAL ESTATE. 
 
 consideration for the purchase price of the premises. 52 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. 53 There 
 is, however, a conflict of authority upon this point. 54 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. 55 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, 
 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. 56 
 
 169. 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 l^ew York and else- 
 where not to apply in case of a breach of a covenant for quiet 
 
 51 Lamb v. James, 87 Tex. 485 ; 29 S. W. Rep. 647, citing Wheeler v. Styles, 
 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 Kans. 543. Barr v. Greeley, 52 Fed. Rep. 926, obiter; Montgomery T. 
 Northern Pac. R. Co., 67 Fed. Rep. 445. Spier v. Lanman, 27 Tex. 205. 
 (Compare, Ellis v. Crossley, 119 Fed. Rep. 779.) 
 
 " Dillahunty v. Little Rock, etc., R. Co. (Ark.), 27 S. W. Rep. 1002. 
 
 "Post, 202, 220. Holloway v. Miller, 84 Miss. 776; 36 So Rep: 531. 
 
 "Galloway v. Finlay, 12 Pet. (U. S.) 264. Thedgill v. Pintard, 12 How. 
 (U. S.) 24. 
 
 "Leet v. Gratz, 92 Mo. App. 422.
 
 COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 407 
 
 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 
 
 "Clarkson v. Skidmore, 46 N. Y. 297. Clark v. Fisher, 54 Kans. 403; 38 
 Pac. Rep. 493. Fritz v. Pusey, 31 Minn. 368; 18 N. W. Rep. 94. Wetzel v. 
 Richcreek (Ohio), 40 N. E. Rep. 1004. Sheets v. Joyner (Ind.), 38 N. E. 
 Rep. 830. Damages for the value of the unexpired term over and above the 
 rent reserved were allowed in Mack v. Patchin, 42 N. 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 premises. (See the com- 
 ments on this decision in Lannigan v. Kille, 97 Pa. St. 120; 39 Am. Rep. 
 797.) The case has been much cited, and justifies the following copious 
 extract from the opinion of EABLE, C. J. : " Ordinarily in an action against 
 the vendor of real 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 paid, he can recover the purchase-money interest and nominal dam- 
 ages. In an action by the lessee 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 mesne 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 
 possession, ordinarily the lessee can recover only nominal damages and some 
 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 de- 
 clared 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 perverseness or to secure a better bargain; or if he has cove- 
 nanted 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 refuses or 
 neglects to do so; or when he refuses to incur expenses which would enable 
 him to fulfill his contract. In all these cases the vendor or lessor is liable 
 to the vendee or lessee for the loss of the bargain under rules analogous to 
 those applied in the sale of personal property. * * * In this case the 
 defendant resided in Buffalo, where the real estate was located, 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 mort- 
 gages 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 in- 
 tended 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
 
 MARKETABLE TITLE TO KEAL ESTATE. 
 
 rule has been applied in England 58 in such cases. A different rule 
 formerly prevailed in Xew York; the earlier cases hold that the 
 rent reserved for the residue of the unexpired term is the measure 
 of the lessee's damages. 59 The late cases would seem to establish 
 the better doctrine. They proceed upon the ground that the rule 
 caveat emptor 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 
 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. 60 It seems that, 
 
 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 judg- 
 ment 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 judg- 
 ment for damages and costs against himself. 
 
 "Williams v. Burrell, 1 Com. B. 402; Lock v. Furze, 19 Com. B. (N. S.) 
 96 ; S. C. on appeal, L. R., 1 C. PI. 441 ; Rolph v. Crouch, L. R. 3 Exch. 44. 
 
 "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 im- 
 provements for mining purposes on the demised premises under an agreement 
 by which he had the right to remove 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 then 
 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, and the only rent reserved being a royalty,, 
 the plaintiff was entitled to no more than nominal damages. 
 
 * Kelly v. Dutch Church, 2 Hill (N. Y.), 105.
 
 COVENANTS OF WARRANTY AND FOE QUIET ENJOYMENT. 409 
 
 if he has paid no rent, he can only recover nominal damages in 
 case of eviction, with costs incurred in defending the title. 81 
 
 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. 62 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. 63 
 
 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 damges 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. 64 The rule is the same whether the action be for breach of 
 
 "Moak v. Johnson, 1 Hill (N. Y.), 99. 
 
 Tranciscus v. Reigart, 4 Wattes (Pa.), 116. 
 
 "Garrison v. Moore, 1 Phila. (Pa.), 282. 
 
 "Sedg. Dam. (8th ed.) 112; Rawle Covt. (5th ed.) 187. Morris v. 
 Phelps, 5 Johns. (N. Y.), 49, 56; 4 Am. Dec. 323; Guthrie v. Pugsley, 12 
 Johns (N. Y.), 126; Giles v. Dugro, 1 Duer (N. Y.), 331; Adams v. Conover, 
 22 Hun (N. Y.), 424; affd., 87 N. Y. 422; 41 Am. Rep. 381. Compare Mohr 
 v. Parmelee, 43 N. Y. Super. Ct. 320, where it is said that " the damages are 
 limited to a sum which bears to the whole consideration of the conveyance 
 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 
 conveyed." This seems to leave the relative value of the 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 one-third 
 of the land by a widow claiming dower, the measure of his damages will be 
 the value of the widow's life interest, taking the purchase money as the 
 basis of the estimate. Weber v. Anderson, 73 111. 439; Wadhams v. Inness, 
 4 111. App. 646. Lloyd v. Sandusky, 203 111. 621; 68 N. E. Rep. 154. 
 Hynes v. Packard, 92 Tex. 44; 45 S. W. Rep. 562. Hoffman v. Kirby, 136 
 Cal. 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 Messer v. Oestrich, supra. Ela v. Card, 2 N. 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.
 
 410 MARKETABLE TITLE TO REAL ESTATE. 
 
 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 
 be of no greater value than the other. In such a case, the damages 
 
 Wheeler v. Hatch, 12 Me. 389; Blanchard v. Blanchard, 48 Me. 174. Cornell 
 v. Jackson, 3 Gush. (Mass.) 506; Lucas v. Wilcox, 135 Mass. 77. Hubbard 
 v. Norton, 10 Conn. 422. Hunphreys v. McClenachan, 1 Munf. (Va.) 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 whole 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 Murph. (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 Mfg. Co. v. Davenport, 50 La. 521; 23 So. Rep. 448. Morris T. 
 Phelps, supra, is the leading case on this point. There it was held that 
 where there was a want of title only a to part of the land conveyed, the 
 damages ought to be 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 KENT, " 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 tlie 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 aa 
 apportionment according to the number of acres lost, when the sole 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 tract* 
 according to their actual values respectively. Thus, dividing the $900 into 
 51 parts, the tract worth $5,000 would bear 50 parts of it, and the tract 
 worth $100 one part, and by this amount would the actual value of the 80-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 Sears v. Stinson, 3 Wash. St. 615, the following rule was laid 
 down: "The jury, 1 assuming the value of the whole tract to be the contract
 
 COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 411 
 
 will be in such proportion to the entire consideration as the undi- 
 vided interest bears to the entire estate in the land. 65 It has been 
 held, however, that the rule limiting damages to the actual value 
 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. 66 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 pur- 
 chase as the part lost bears to the entire tract. 67 
 
 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 af- 
 fected or the charge upon the estate be trifling and inconsiderable. 68 
 He has no such option where the contract has been executed by a 
 conveyance with full covenants for title. If he be evicted from 
 
 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 has 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 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. App. 307, 49 
 8. 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. 
 
 "Downer v. Smith, 38 Vt. 464; Scantlin v. Allison, 12 Kans. 92. 
 
 "Conklin T. Hancock, 67 Ohio St. 455; 66 N. E. Rep. 518; Kempner v. 
 Lumber Co. 20 Tex. Civ. App. 307; 49 S. W. Rep. 412. 
 
 "Gass v. Sanger, (Tex. Civ. App.), 30 S. W. Rep. 502. 
 
 "Post, ch. 32. 1 Sugd. Vend. (8th Am. ed.) 477 (315).
 
 412 MARKETABLE TITLE TO REAL ESTATE. 
 
 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 prin- 
 cipal 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, be 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. 69 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 th,e life estate and the fee. 70 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. 71 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 
 of the life estate. 72 If the title be outstanding in tenants in com- 
 mon or joint tenants, and but one of these recovers an undivided 
 
 "Morris v. Phelps, 5 Johns. (N. Y.) 56; 4 Am. Dec. 323. See, also, cases 
 cited ante, p. 409, note 64. An agreement that if the title to part of the 
 land fails, the grantee may have credit on his purchase-money notes on re- 
 conveying 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. 
 
 "Recolis v. Younglove, 8 Baxt. (Tenn.), 385. TUBNEY, 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. Briscoe. Noy- 142, and cases 
 cited ante, p. 409. Tanner v. Livingston, 12 Wend. (M. Y. ) 83. 
 
 "Kimball v. Bryant, 25 Minn. 496; Ogden v. Ball, 38 Minn. 237; 36 N. W 
 Rep. 344; Huntsman v. Hendricks, 44 Minn. 423; 46 N. W. Rep. 91ft 
 
 "Aiken v. McDonald (So. Car.), 20 S. E. Rep. 796.
 
 COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 413 
 
 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. 73 
 
 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. 74 Evidence of the advan- 
 tages or disadvantages of the part lost, is admissible on behalf 
 of either party. 75 
 
 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. (j., the 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. 76 Where the breach consisted in the 
 occupancy of a part of the premises by a tenant tinder a prior 
 lease from the grantor, it was held that the measure of damages 
 was the fair rental value of the part occupied, and expenses of 
 litigation with the tenant. 77 
 
 171. Improvements. The rule that the measure of damages 
 upon a breach of the covenants of warranty and of seisin, is the 
 
 7S 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. 
 
 7 Hymes v. Esty, 133 N. Y. 342; 31 N. E. Rep. 105. 
 
 In a case 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. 
 
 "Browning v. Stillwell, 86 N. Y. Supp. 707; 42 Misc. 346.
 
 414 MARKETABLE TITLE TO REAL ESTATE. 
 
 consideration money and interest, precludes the purchaser from 
 recovering the value of improvements placed by him on the prem- 
 ises. 78 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. 79 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 
 
 ftA 
 
 conveyance. 
 
 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, 81 and this without regard to the proportion between 
 
 ** Bender v. Fromberger, 4 Ball. ( U. S. ) 442, leading case. Coffman v. 
 Huck, 19 Mo. 435. But see 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 improvements 
 made by him u^on the estate, is affirmed by statute in many of the States. 
 
 80 Hawkins v. Brown, 80 Ky. 186. 
 
 n 4 Kent Com. 475. The learned author says : " The interest is to counter- 
 Tail the claim for mesne profits to which the grantee is liable, and is and 
 ought to be commensurate in point of time with the legal claim to mesne 
 profits." 2 Sutherland Dam. 300. Staats v. Ten Eyck, 3 Caines (N. Y.), 
 Ill; 2 Am. Dec. 254; Pitcher v. Livingston, 4 Johns. (N. Y.) l;-4 Am. Dec. 
 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. 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.), ir9, 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; Meseer v. Oestrich, 52 Wis. 694; 10 
 N. W. Rep. 6. King v. Kerr, 5 Ohio, 160: 22 Am. Dec. 777. McGuffey v.
 
 COVENANTS OF WARRANTY AND FOB QUIET ENJOYMENT. 415 
 
 the amount of the interest and the value of the mesne profits. 82 
 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. 83 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. 84 The same rule applies where the evic- 
 tion results from the enforcement of a mortgage or other incurn- 
 brance on the land, the covenantee not being liable to the incum- 
 brancer for rents and profits. 85 In some cases, however, it has been 
 held that the covenantee will not be allowed interest on the damages 
 unless he shows that he has accounted to the real owner for the 
 rents and profits. 86 In other cases his right to interest has been de- 
 clared complete without regard to the question of mesne profits, on 
 the ground that the covenantor has no interest in the profits, and 
 
 Hawes, 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 poa 
 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- 
 eeds of the timber. Graham v. Dyer, (Ky.), 29 S. W. Rep. 346. 
 
 British & Am. Mtge Co. v. Todd, 84 Miss. 522 ; 36 So. 1040. 
 
 "Harding v. Larkin, 41 111. 413. Morris v. Rowan, 17 N. J. L. 304. De 
 Long T. Spring Lake Co., 65 N. J. L. 1; 47 Aal. 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. Posey, 1 Head 
 (Tenn.), 312. 
 
 *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. (N. C.) 486. 
 
 V Field Dam. 466; 1 Sedg. Dam. (7th ed.) 338, n. Wacker v. Straub, 88 
 Pa. St. 32. Benton 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 beinjj 
 presumed that mesne profits will be recovered by the real owner. In 
 Whiting 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.
 
 416 MARKETABLE TITLE TO REAL ESTATE. 
 
 cannot recoup them from the purchase money and interest, nor 
 compel the covenantee to account for them. 87 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 
 be allowed interest on the recovery, it being presumed that the 
 mesne profits entered into the consideration paid for the para- 
 mount title. 88 It has also been held that he will be entitled to in- 
 terest 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. 89 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 required 
 possession to be delivered before accepting the conveyance. 90 The 
 
 "Wilson v. Peelle, 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 
 thfe 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 Y. 
 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 
 (N. 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. Middleton, Cheves ( S. C. ) , 
 129, it was held that the fact that the covenantee had been in receipt of the 
 profits did not affect his right to interest on the consideration money. 
 Interest in such a case is 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 is not concerned with them. In this connection O'NEALE, 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 recep- 
 tion of the rents and profits. The defect reaches back to the beginning of 
 his title, and the rents and profits which he has received are not those of 
 his vendor, but those of a third person having the paramount title. The 
 damages 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." 
 
 88 Harding v. Larkin, 41 111. 413. 
 
 89 Spring v. Chase, 22 Me. 505 ; 39 Am. Dec. 505. 
 
 "Andrus v. St. Louis Smelting Co., 130 U. S. 643. No authorities cited
 
 COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 417 
 
 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. 91 
 
 173. Costs and attorney's fees 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 
 recovery 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. 62 The purpose of such a 
 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. 98 
 
 81 Simpson v. Belvin, 37 Tex. 675. Bellows v. Litchfield, 83 Iowa, 36 ; 48 N. 
 W. Rep. 1062. N. 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; 1 S. W. Rep. 506; Mette v. Dow, 9 Lea 
 (Tenn.), 93. 
 
 82 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. (N. 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- 
 f.eld v. Storr, 36 Md. 151; 11 Am. Rep. 480. Harding v. LarWn, 41 111. 421. 
 MoKee 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 r. 
 Wheeler, 84 Mo. App. 101. 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. 399; 24 
 Atl. Rep. 328. The taxable costs paid by the plaintiff may be included 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. L. 309 (1839), FORD, J., saying: "The de- 
 fendant's counsel supposes the costs on eviction are allowed because it was 
 
 ' 27
 
 418 MARKETABLE TITLE TO REAL ESTATE. 
 
 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. 94 On the other 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 unprofit- 
 able litigation by defending the suit, 95 especially where it was clear 
 that defense would be useless, and the covenantor notified the cove- 
 nantee not to defend. 96 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 
 
 the warrantor's duty to defend the suit upon receiving notice of the action, 
 and he objects to them in this ease because no notice was given to 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 and defend is not a conditional one, 
 if he has notice, otherwise want of notice might bar the warranty itself. He 
 covenants to defend as absolutely as he does 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." HOEXBLOWER, C. J., stated that he had 
 examined a number 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." See, also, Duffield v. Scott, 3 Term Rep. 374. 
 
 "Swett 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. Winnepiseogee Paper 
 Co. T. Eaton, 65 N. H. 13; 18 Atl. Rep. 171. Walsh, v. Dunn, 34 111. App. 
 146. Teague v. Whaley, 20 Ind. App. 26; 50 N. E. 41. Whether the notice 
 be to prosecute or defend, Potwin v. Blasher, 9 Wash. 460; 37 Pac. Rep. 710. 
 
 "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. 
 
 "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.
 
 COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 419 
 
 to litigate the title. And it would seem that the right of the cove- 
 nantee 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. 97 
 
 The grantee will not be entitled to costs of defending the title if 
 the grantor instead of conveying with warranty, merely covenants 
 to return the purchase money, if the grantee is evicted. 98 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 was passed 
 upon. 99 Xor 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. 1 
 If the covenantor was not seized, and the covenantee nevertheless 
 enter on the land, and the real owner recover against him in tres- 
 pass, the covenantee cannot recover the costs and damages so in- 
 curred in an action on the covenant of seisin. 2 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. 3 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. 4 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 
 
 97 Mr. Rawle inclines to this view. Covts. for Title (5th ed.), 199, and 
 note 2. 
 
 Barnett v. Montgomery, 6 T. B. Mon. (Ky.) 332. 
 
 "Harding v. Larkin, 41 111. 413. 
 
 '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. 
 
 'Cushman v. Blanchard, 2 Gr. (Me.) 266; 11 Am. Dec. 76. 
 
 * Stark v. Olney, 3 Oreg. 88. 
 
 4 Hedrick v. Smith, (Tex.) 14 S. W. Rep. 197. The case does not show 
 whether the promise was made before or after the warranty.
 
 420 MARKETABLE TITLE TO REAL ESTATE. 
 
 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 inter- 
 fering with such claimant, without losing his right to recover the 
 costs of such suit from the grantor. 5 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 in- 
 curred in defending a suit by the latter, 6 provided the suit was 
 brought against the adverse claimant with the concurrence of the 
 covenantor. 7 
 
 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. 8 
 
 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; 9 and if the covenantee be evicted, he may 
 
 Smith v. Sprague, 40 Vt. 43. 
 
 2 Sutherland Dam. 303. 
 
 7 Kyle v. Fauntleroy, 9 B. Mon. (Ky.) 620. See, also, Dale v. Shively, 8 
 Kans. 276. Kingsbury v. Smith, 13 N. H. 125. There the court said: "The 
 principle deducible from the cases cited would seem to be that the grantee 
 in an action upon a covenant of warranty, express as in a deed, or implied 
 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 proceedings 
 for the ascertainment and protection of his rights under the purchase, aa 
 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 wa 
 denied attorney's fees paid by him in a suit to recover the land. 
 
 Thome v. Clark, (Iowa) 84 N. W. Rep. 701. 
 
 Colvin v. Schell, 1 Grant (Pa.), 226.
 
 COVENANTS OF WARRANTY AND FOB QUIET ENJOYMENT. 421 
 
 recover all costs and expenses incurred in defending the title, with- 
 out regard to the question of notice to the covenantor to defend. 10 
 
 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 payment 
 thereof demanded before suit on the covenant was begun. 11 
 
 Nor is it necessary that the covenantee shall show that he has 
 actually paid the costs and expenses of defending the title ; he is 
 entitled to recover costs incurred though not paid. But he cannot 
 recover interest on unpaid costs. 12 
 
 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. He 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. 13 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. 14 In other cases 
 
 J *Cox v. Henry, 32 Pa. St. 21; Anderson v. Washerbaugh, 43 Pa. St. 115. 
 
 "Tarbell v. Tarbell, 60 Vt. 486; 15 Atl. Rep. 104. 
 
 "Walton r. Campbell, 51 Neb. 788; 71 N. W. Rep. 737. 
 
 " 2 Suth. Dam. 308. Taylor v. Holter, 1 Mont. 688. Swett v. Patrick, 12 
 If* 9. 
 
 14 Ryerson v. Chapman, 66 Me. 5-62. 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. Shivley, 8 Kans. 276; McKee v. 
 Bain, 11 Kans. 578. (Compare Jewett v. Fisher, [Kan. App.l 58 Pac. 
 1023.) McAlphine v. Woodruff, 11 Ohio St. 120. 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 Robert- 
 son 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 were allowed him. In Swartz v. Ballon, 47 Iowa, 
 188, it was held that the plaintiff was entitled to " reasonable attorney's 
 fees," but that " reasonable fees " meant such as had been actually incurred,
 
 422 MARKETABLE TITLE TO REAL ESTATE. 
 
 such fees have been denied the covenantee unless notice was given 
 the covenantor to defend, and was neglected by him. 15 And in still 
 other cases these fees have been refused the covenantee regardless 
 of the question of notice to the covenantor. 16 Reasonable personal 
 expenses, and compensation for trouble incurred in defending the 
 title have been allowed the covenantee though the covenantor was 
 vouched hi to defend the adverse claimant's suit. 17 Counsel fees 
 
 and that lie must show .that he had paid, or obligated himself to pay, the 
 fees claimed. But in Rickert v. Snyder, 9 Wend. (N. Y.) 419, 423, it was 
 held that the covenantee was entitled to reasonable attorney's fees, though 
 the amount actually paid was neither alleged in the declaration, nor proved 
 at the trial. If the covenantor himself disturb the covenantee in the pos- 
 session, the latter will, in an action for breach of the covenant for quiet 
 enjoyment, be entitled to counsel fees paid in resisting the covenantor. 
 Levitzky v. Canning, 33 Cal. 308. 
 
 "Crisfield v. Storr, 36 Md. 150; 11 Am. Rep. 480. As an illustration of 
 the widely diverging opinions of judges upon the question of fhe covenantor's 
 liability for counsel fees as affected by 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. Tender, 
 132 N. C. 628; 44 N. E. Rep. 362. 
 
 "Williams v. Burg, 9 Lea (Tenn.), 455. Morris v. Rowan, 2 Harr. 
 (N. J. L.) 309; Holmes v. Sinnickson, 3 Gr. (N. J. L.) 313. Jeter v. Glenn, 
 9 Rich. L. (S. C.) 374; Ex parte Lynch, 25 So. Car. 193. Brooks v. Black, 
 68 Mies. 161; 8 So. Rep. 332. Matheny v. Stewart, 108 (Mo.) 73; 17 S. W. 
 Rep. 1014. Coleman v. Clark, 80 Mo. App. 339. 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. Gates 
 v. Field, (Tex. Civ. App.) 85 S. W. Rep. 52. 
 
 "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. Where 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 covenantee has been held entitled to his personal ex- 
 penses, even though incurred after the covenantor had, upon notice, assumed 
 the defense. Kennison v. Taylor, 18 N. H. 220, citing Loomis v. Bedel, 11 
 N. H. 74; Moody v. Leavitt, 2 N. H. 174.
 
 COVENANTS OF WARRANTY AND FOE QUIET ENJOYMENT. 423 
 
 ior advice and assistance in buying in the outstanding title have in 
 some cases been allowed, 18 and in others refused 19 the plaintiff. If 
 the covenantor assume the defense when requested, it has been held 
 that the plaintiff cannot recover attorney's fees ; 20 if, however, the 
 covenantor refuse or neglect to defend when notified the right of 
 the plaintiff to recover those items has been asserted in some cases, 21 
 and denied in others. 22 It has been held that the covenantee will 
 not be entitled to recover attorney's fees and other expenses in- 
 curred by him in getting in an outstanding title to the land. 23 
 
 175. NOTICE TO DEFEND OH 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 of warranty, that the title so established was 
 superior to that derived by himself from the defendant, the cove- 
 nantor. It would be obviously unjust that the covenantor should be 
 exposed to the danger of collusion between the grantee and the ad- 
 verse 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 eject- 
 
 "McKee v. Bain, 11 Kans. 569. Lane v. Fury, 31 Ohio St. 574. 
 
 "Leffingwell v. Elliott, 10 Pick. (Mass.) 204; 8 Pick. (Mass.) 457; 19 
 Am. Dec. 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. Olney, 3 Oreg. 
 88. Lane v. Fury, 31 Ohio St. 574. Keeler v. Wood, 30 Vt. 242. Swett T. 
 Patrick, 12 Me. 1. See Ryerson v. Chapman, 66 Me. 562, where it was said 
 that Swett v. Patrick, supra, does not decide that costs and attorneys' fees 
 are not recoverable when notice to defend is not given, but merely gives the 
 fact of notice as an additional or conclusive reason why they should be in- 
 cluded in the damages. 
 
 "Terry v. Drabenstadt, 68 Pa. St. 400, SHABSWOOD, J., saying: "Without 
 undertaking to lay down any general rule, it would seem to be most reasonable 
 to hold that where a covenantor has 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 be 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.) 55. 
 
 "Mercantile Trust Co. v. S. Park Residence Co., 94 Ky. 271; 22 S. W. Rep. 
 314.
 
 424 MARKETABLE TITLE TO REAL ESTATE. 
 
 ment by an adverse claimant, notifies the covenantor of the pend- 
 ency of the suit and requests him to appear and defend it, the latter 
 thereby becomes subtsantially 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. 24 These decisions would seem necessarily 
 
 "Abbott's Trial Ev. 519; Rawle Covts. for Title (5th ed.), 117. Salle T. 
 Light, 4 Ala. 700; 39 Am. Dec. 317, case of personal property. Hinds T. 
 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. 
 Hunger, 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. Sanfley, 89 Ky. 57; L. 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 was 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 
 the arbitration to the covenantor, is not binding upon him. Prewitt v. Kenton, 
 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.
 
 COVENANTS OF WARRANTY AND FOB QUIET ENJOYMENT. 425 
 
 to assume that in the States in which they were rendered some pro- 
 vision 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 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, inasmuch as there was no law or rule, or practice by which he 
 might be made a party to the suit. 25 The better opinion, however, 
 seems 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. 26 Judgment against the 
 
 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, 
 was 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. 
 
 "Williams 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. Cowes, 2 Dev. & Bat. 
 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 \ 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." 
 
 * Chamberlain v. Preble, 11 Mass. 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 ha* 
 knowledge, he cannot be permitted to sho\? 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
 
 426 MARKETABLE TITLE TO EEAL ESTATE. 
 
 covenantee in trespass, as well as in ejectment, binds the cove- 
 nantor if he has been notin?d of the suit and requested to defend. 27 
 So. also, in trespass to try title, 28 and in foreclosure proceedings. 29 
 The covenantee, by giving the proper notice, is not only relieved 
 from the burden of showing that the judgment under which he was 
 evicted was founded upon a paramount 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 eject- 
 ment plaintiff, or show a better title in himself. 30 The notice makes 
 him a privy to the action, and he is bound whether he does or does 
 not appear and defend. 31 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. 32 
 
 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 whem 
 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. 
 
 ""Merritt v. Morse, 108 Mass. 270, citing Shears v. Dusenbury, 13 Gray 
 (Mass.) 292; Chamberlain v. Preble, 11 Allen (Mass.), 370, and Haven T. 
 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, S 
 Watts (Pa.)~323. Middleton v. Thompson, 1 Spear L. (S. C.) 67; Wilson 
 T. McElwee, 1 Strobh. L. (S. C.) 65. Williams v. Burg, 9 Lea (Tenn.), 
 455. Williams v. Weatherbee, 2 Aik. (Vt.) 357. Wendel v. North, 24 Wis. 
 223. The foregoing decisions are rested upon the familiar principle enun- 
 ciated by BULLER, 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 the person to be indemnified is obliged to pay the 
 demand, that is equivalent to a judgment and estops the other party from 
 saying that the defendant in the first action was not bound to pay the 
 money." 
 
 "Rawle Covts. (5th ed.) 117. Wimberly v. Collier, 32 Ga. 13. McConnell 
 v. Downs, 48 111. 271. Woodward' v. Allen, 3 Dana (Ky.), 164. 
 
 " Chamberlain v. Preble, 11 Allen (Mass.), 370. The warrantor, if made a 
 party, is bound by judgment in a suit by an adverse claimant, though ren-
 
 COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 427 
 
 Notice should be given to the covenantor himself. Notice to his 
 agent, appointed to collect the purchase money, is insufficient." 
 Notice to the personal representatives of the covenantor need not 
 be given if the covenantor was properly notified during his life- 
 time. 34 If the covenantee be evicted under a title derived from 
 himself, the covenantor will not, of course, be estopped from show- 
 ing that fact though he may have disregarded a notice to appear 
 and defend the suit. 35 The notice to appear and defend relieves the 
 covenantee and the adverse claimant of any imputation of col- 
 lusion. 36 But if there be actual collusion, or judgment be rendered 
 against the covenantee through his negligence, the covenantor will 
 not be bound, notwithstanding the notice. 37 If the covenantor ap- 
 pears and defends the suit in pursuance of the notice and request, 
 a fortiori will he be bound by the judgment, being actually and 
 not merely constructively a party to the suit and will not be per- 
 mitted afterwards to show that his title was good. 88 In Wisconsin 
 it has been held that the covenantor, though notified to defend the 
 action, and failing so to do, will not be bound by a judgment 
 against his grantee if not allowed to pay the costs and take a new 
 trial." 
 
 The notice must be unequivocal, certain and explicit. Mere 
 knowledge of the action and notice to attend the trial will not suf- 
 fice unless attended with an express notice that he will be required 
 
 dered upon a stipulation between the plaintiff and the co-defendant, to which 
 he was not a party. Brown v. Hearon, 66 Tex. 63; 17 S. VV. Rep. 395; Mann 
 r. Matthews, 82 Tex. 98; 17 S. W. Rep. 927. 
 
 ** Graham v. Tankersley, 15 Ala. 634. But in a case in which an agent, upon 
 being notified, appeared and practically took charge of the suit, the principal 
 was held bound by the result. Bellows v. Litchfield, 83 Iowa, 36; 48 N. W. 
 Rep. 1062. 
 
 M Brown v. Taylor, 13 Vt. 631 ; 37 Am. Dec. 18. This decision was criti- 
 cised in Somers v. Schmidt, 24 Wis. 420; 1 Am. Dec. 191. See, also, Rawle 
 Covts. (5th ed.) 119. 
 
 "Rowle Covts. (5th ed.) 117, note. 
 
 "Swenk v. Stout, 2 Yeates (Pa.), 470, 472. 
 
 " Sisk v. Woodruff, 15 111. 15, obiter. Davis v. Smith, 5 Ga. 274. 
 
 "Brown v. McMullen, 1 Hill L. (S. C.) 29. Collis v. Cogbill, 9 Lea 
 (Tenn.), 137. 
 
 " Eaton v. Lyman, 26 Wis. 62. It seems that in this State the covenantor, 
 though not a party to the suit, is by statute entitled to a new trial as a 
 matter of right.
 
 428 MARKETABLE TITLE TO REAL ESTATE. 
 
 to defend the title. 40 The covenantor must be requested to take 
 upon himself the defense of the title. Knowledge of the adverse 
 suit, incidentally acquired through third parties, will not conclude 
 him. 41 
 
 The better opinion seems to be that the covenantor is as much 
 bound by notice to appear and prosecute a suit against an adverse 
 claimant of the estate begun by the covenantee as he is to defend 
 one instituted against him. 42 This, however, has been denied upon 
 the ground that there is no principle upon which the covenantor 
 can be substituted as plaintiff in the action. 43 The covenantee, after 
 beginning a suit against the adverse claimant and notifying the 
 covenantor to appear and prosecute, may dismiss the suit without 
 affecting his right to recover on the warranty. 44 
 
 No particular form of notice is necessary ; it will be sufficient if 
 it explicitly notifies the covenantor of the suit and requests him to 
 defend it. 45 
 
 "Paul v. Witman, 3 Watts & S. (Pa.) 409. Collins v. Baker, 6 Mo. App. 
 588. Dalton v. Bowker, 8 Nev. 190. Greenlaw v. Williams, 2 Lea (Tenn.), 
 533. Sheets v. Joyner, (Ind.) 38 N. E. Rep. 830. The rule stated in the 
 text, drawn from the cases cited, has not been aplied in all cases in which 
 it has been sought to bind one person by the result of a suit against an- 
 other. Thus, in Chicago City v. Rollins, 2 Bl. \U. S.) 418, it was held that 
 an individual would be concluded by a judgment recovered against a cor- 
 poration for his act or negligence if he knew that the suit was pending and 
 could have defended it. An express notice to such individual is not necessary 
 to create a liability on his part. Where the covenantor, pending an action 
 of ejectment against the covenantee, wrote to him as follows : " I must 
 defend the action. I have consulted a lawyer here, and have given him a 
 fee. He recommends removing it to the Supreme Court. The costs I ex- 
 pect to pay. You did right to employ a lawyer. If another is wanted you 
 must employ one. I cannot attend myself," it was held that the covenantor 
 was bound by a judgment against the defendant. Leather v. Poultney, 4 
 Binn. (Pa.) 356, per TILGHMAN, J. 
 
 "Somers v. Schmidt, 24 Wis. 419; 1 Am. Rep. 191. 
 
 Park v. Bates, 12 Vt. 381 ; 36 Am. Dec. 347 ; Pitkin v. Leavitt, 13 Vt. 379 ; 
 Brown v. Taylor, 13 Vt. 637; 37 Am. Dec. 618. Gragg v. Richardson, 25 Ga. 
 570; 71 Am. Dec. 190. Walsh v. Dunn, 34 111. App. 146. 
 
 'Terrell v. Alder, 8 Humph. (Tenn.) 43. And in North Carolina it has 
 been held that if the covenantee sues an intruder, the fact that the covenantor 
 will not produce his title deeds in aid of the prosecution gives the plaintiff 
 no rights against him. Wilder v. Ireland, 8 Jones L. (N. C.) 88. 
 
 44 White v. Wilhams, 13 Tex. 258. 
 
 "Williams v. Burg, 9 Lea (Tenn.), 455.
 
 COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 429 
 
 It has been held that the notice must be in writing, 46 but the 
 weight of authority establishes the sufficiency of a verbal notice. 47 
 
 A judgment of eviction rendered against the covenantee without 
 notice to the covenantor, has, in some instances, been held prima 
 facie evidence of paramount title in the evictor on behalf on the 
 covenantee when suing for a breach of the covenant of warranty. 4 * 
 But the better opinion appears to be that in such a case the judg- 
 ment is evidence tending to show an eviction only, the burden still 
 l>eing upon the covenantee to show that the eviction was under a 
 
 "Mason v. Kellogg, 38 Mich. 132. BBONSON, J., in Miner v. Clark, 15 
 Wend. (N. Y.) 425. Verbal notice of an application for the appointment of 
 commissioners to assign dower is not conclusive upon those interested. In re 
 Cooper, 15 Johns. (N. Y.) 533. In Mason v. Kellogg, supra, the court said: 
 " Upon full consideration we think the dictates of policy, the force of analogy, 
 and weight of reason require the notice to be in writing. Our policy has 
 always favored written memorials of title to rea 1 ""tate, and in view of the 
 effect which the law attributes to this proceeding, 2t is sufficiently near being 
 a fact of title to be within the policy. It bears a striking analogy to the 
 ancient process of voucher and summons and similar proceedings in some 
 of our States, and of course such proceedings could not be verbal. It con- 
 templates the introduction of the covenantor and the entire prosecution of 
 the defense in complete accordance with his views and under his direction. 
 It is essentially a legal proceeding, and it is a well-recognized general rule 
 that every notice of that character must be in writing." 
 
 "Miner v. Clark, 15 Wend. (N. Y.) 425, BBONSON, J., dissenting. Somer? 
 v. Schmidt, 24 Wis. 419; 1 Am. Rep. 191. The sufficiency of a verbal notice 
 seems to have been assumed in Collingwood v. Irwin, 3 Watts (Pa.), 306, 
 and in Greenlaw v. Williams, 2 Lea (Tenn.), 533. In Cummings v. Harrison, 
 57 Miss, 275 (1879), it was said: "In order to bind the warrantor by the 
 result of an action of ejectment against the party holding under him, and 
 to conclude him from showing title when he is sued on his warranty, it is 
 not necessary for the notice to him by the defendant in the action of eject- 
 ment to be in writing or in any particular form, or that a demand should 
 be made of him to defend the action. If the warrantor has reasonable notice 
 of the action against his warrantee, and an opportunity to defend it, he will 
 be bound by the result, and when sued on his warranty, cannot be heard 
 to show that the action of ejectment might have been successfully defended. 
 He should have interposed such defense then, or ever afterwards be silent." 
 
 "Leathers v. Poultney, 4 Binn. (Pa.) 352; Paul v. Witman, 3 Watts & S. 
 (Pa.) 407; Collingwood v. Irwin, 3 Watts (Pa.), 506, 310. Pitkin v. Leavitt, 
 13 Vt. 385. King v. Kerr, 5 Hamm. (Ohio) 154; 22 Am. Dec. 777. Simpson 
 v. Belvin, 37 Tex. 675. In Somerville v. Hamilton, 4 Wheat. (U. S.) 230, 
 the court was divided upon this point.
 
 430 MARKETABLE TITLE TO REAL ESTATE. 
 
 paramount title. 49 If he neglects to give the notice, he must come 
 prepared to prove that the evictor had the better title. This, as has 
 been well said imposes no hardship upon him, and subjects him 
 to but little inconvenience. It by no means follows that a judg- 
 ment in ejectment against a grantee is founded upon the invalidity 
 of the grantor's title. The judgment may be obtained by collusion ; 
 by a failure of the defendant to make proof of the title under which 
 he entered; or under a conveyance from the covenantee himself; 
 or under a tax title originating in his own default. 60 
 
 The notice must be given in reasonable time. 51 It will suffice if 
 time enough is allowed to prepare the case for trial. If ejectment 
 has been actually begun against the covenantee, it is immaterial 
 that his notice to defend was given before the complaint or declara- 
 tion in ejectment was filed. 52 Whether notice has or has not been 
 given to the covenantor to appear and assist in the defense of a suit 
 attacking the title conveyed by him is a question for the jury. 63 The 
 sufficiency of the notice, when given, is to be determined by the 
 court. 64 Notice to the covenantor to appear and defend a suit by 
 the adverse claimant is not indispensable, nor a condition prec- 
 edent, to the right of the covenantee to recover on the warranty if 
 the suit result in an eviction. It is prudent, however, to give the 
 notice in order to dispense with proof that the eviction was under 
 
 49 Graham v. Tankersley, 15 Ala. 634. Hinds v. Allen, 34 Conn. 195. Rhode 
 v. Green, 26 Ind. 83; Walton v. Cox, 67 Ind. 164. Patton v. Kennedy, 1 A. K. 
 Marsh. (Ky.) 288; 10 Am. Dec. 744; Devour v. Johnson, 3 Bibb (Ky.), 410; 
 Booker v. Bell, 3 Bibb (Ky.), 175; 6 Am. Dec. 641; Booker v. Meriweather, 
 4 Litt. (Ky.) 212; Cox v. Strode, 4 Bibb (Ky.), 4; 5 Am. Dec. 603. Ryerson 
 v. Chapman, 66 Me. 557 ; Hardy v. Nelson, 27 Me. 525. Hines v. Jenkins, 
 64 Mich. 469; 31 N. W. Rep. 432. Fields v. Hunter, 8 Mo. 128; Holladay 
 v. Menifee, 30 Mo. App. 207. Dalton v. Bowker, 8 Nev. 190. Middleton v. 
 Thompson, 1 Spear L. (S. C.) 67. Stevens v. Jack, 3 Yerg. (Term.), 403, 
 case of personal property. Clark v. Munford, 62 Tex. 531. Gates v. Field 
 (Tex. Civ. App.) 85 S. W. Rep. 52. 
 
 "Sisk v. Woodruff, 15 111. 15; Brady v. Spurck, 27 111. 479. 
 
 "Middleton v. Thompson, 1 Spear L. (S. C.) 67; Davis v. Wilbourne, 1 
 Hiii L. (8. C.) 28; 26 Am. Dec. 154. 
 
 " Cook v. Curtis, 68 Mich. 611 ; 36 N. W. Rep. 692. 
 
 M Collingwood v. Irwin, 3 Watts (Pa.), 310. 
 
 "Rowle Covts. (5th ed.) 120.
 
 COVENANTS OF WARBANTY AND FOB QUIET ENJOYMENT. 431 
 
 a paramount title. 65 But in Louisiana it has been held that if the 
 covenantor loses a good defense that he might have made if he had 
 been seasonably called upon to defend the title, the covenantee can- 
 not recover on the warranty. 56 A record of a judgment of eviction 
 which appears to be a complete transcript will be received in 
 evidence in an action for breach of warranty, though not certified 
 to be full and complete. 57 It has been held that if judgment in 
 ejectment be recovered against the covenantee, not on the ground 
 that the plaintiff's title was superior to that of the covenantor, but 
 on the ground that the defendant in ejectment was precluded by 
 the acts and declarations of his immediate grantor from taking 
 refuge under the good title, the latter will not be bound by the 
 judgment, though he was notified to appear and defend the suit. 58 
 Notwithstanding notice to the covenantor to appear and defend a 
 suit attacking the title, the covenantee must, if evicted, show, in an 
 action for breach of the covenant, that the eviction took place under 
 a title older than his own ; that is, a title not derived from himself, 
 unless the record of the suit in which he was evicted shows that 
 fact. 59 Therefore, where the breach of warranty complained of was 
 that an adverse decree had been rendered against the covenantee in 
 a suit against him to quiet title, and that possession had been taken 
 by the adverse claimant under that decree, but it did not appear 
 
 63 Chapman v. Holmes, 5 Halst. ( 10 N. J. L. ) 24. King v. Kerr, 5 Ohio, 158 ; 
 22 Am. Dec. 777. Pitkin v. Leavitt, 13 Vt. 379. Ryerson v. Chapman, 66 Me. 
 557. Talbot v. Bedford, Cooke (Tenn.), 447. Boyle v. Edwards, 114 Mass. 
 373. Wheelock v. Overshiner, (Mo.) 19 S. W. Rep. 640. The foregoing cases 
 are largely founded on Smith v. Compton, 3 Barn. & Ad. 407, a case in which 
 the covenantor compromised a suit against himself by the adverse claimant 
 at 500, and was afterwards permitted to recover the amount so paid from 
 the covenantor, though the latter was not notified of the adverse claimant's 
 suit. TENTEBDEN, C. J., said : " The only effect of want of notice in a case 
 such as this is to let in the party who is called upon for an indemnity to show 
 that the plaintiff has no claim in respect of the alleged loss." 
 
 "Kelly v. Wiseman, 14 La. Ann. 661. 
 
 "Radcliff v. Ship, Hard. (Ky.) 299. 
 
 "Kelly v. Dutch Church, 2 Hill (N. Y.), 105. 
 
 "Folliard v. Wallce, 2 Johns. (N. Y.) 395. Williams v. Wetherbee, 2 Aik. 
 (Vt.) 337; Knapp v. Marlboro, 34 Vt. 235; Pitkin v. Leavitt, 13 Vt. 379, 384; 
 Swazey v. Brooks, 34 Vt. 451. See cases cited, post, 176. Parol evidence of 
 testimony given on the trial of ejectment agains't the covenantee is admissible 
 to show that recovery was under a title derived from the covenantor. Leather 
 v. Poultney, 4 Binn. (Pa.) 356.
 
 432 MARKETABLE TITLE TO REAL ESTATE. 
 
 that the title on which such decree was based was older than or 
 prior to that under which the covenantor conveyed, it was held that 
 the plaintiff, the covenantee, was not entitled to recover, since there 
 was nothing to show but that the title under which he was evicted 
 was derived from himself. 60 
 
 If the grantee is evicted by one who claims under a prior deed 
 from the grantor such eviction is a breach of a covenant against the 
 acts of the grantor himself. The covenant of special warranty 
 embraces past as well as future acts of the grantor. 61 An eviction 
 by one holding under a prior appointment by the grantor is equiva- 
 lent to an eviction by the grantor himself. 62 It has been held that if 
 the grantor conveys a clear title with general warranty, and the 
 grantee fails to record his deed in due time, by reason of which he 
 loses the estate to a subsequent grantee of the covenantor who first 
 records his deed, there is no breach of the covenant of warranty, 
 and that the remedy of the covenantee, if any, is by action on the 
 case for the damages actually sustained, or for money received to 
 his use by the covenantor. 63 Other cases, however, hold, and appar- 
 ently with greater reason, that the grantor cannot claim that the 
 grantee should have recorded his deed in order to guard against a 
 
 Pack v. Houghtaling, 38 Mich. 127. Clements v. Collins, 59 Ga. 124, the 
 court saying : " The great and insurmountable defect in the evidence, how- 
 ever, is that it fails to show that the recovery in ejectment was had upon title 
 outstanding at the date of the warranty. Nothing appears which is the least 
 inconsistent with the covenant. Ten years had elapsed when ejectment suit 
 was brought, and no date in the pleadings or the evidence has any relation 
 whatever to so remote a period in the past. What the judgment in eject- 
 ment adjudicates is that the plaintiff (in the ejectment) had title at the 
 commencement of that action, in 1869. But that fact is perfectly consistent 
 with title in the warrantor in 1859. There is nothing to show that the very 
 deed containing the warranty now sued on was not a part of the chain of 
 title upon which the premises were recovered in the action of ejectment." 
 
 Faries v. Smith, 11 Rich. L. (S. C.) 82. 
 
 Calvert v. Sebright, 15 Beav. 156. 
 
 ** Wade v. Comstock, 11 Ohio St. 71, upon the ground that the covenant of 
 warranty relates solely to the title as it was at the time the conveyance was 
 made, and merely binds the covenantor to protect the grantee and his assigns 
 against a lawful and better title existing before or at the time of the grant. 
 Mr. Rawle seems to approve this rule, at least in cases in which an interest 
 remains in the grantor, e. g., an equity of redemption, the conveyance con- 
 taining the covenant having been a mortgage. Covenants for Title (5th ed.), 
 128, n. 5. See, also, Scott v. Scott, 70 Pa. St. 244.
 
 COVENANTS OF WABRANTY AND FOB QUIET ENJOYMENT. 433 
 
 subsequent wrongful transfer of the same title to another by the 
 grantor himself. The covenant of warranty includes a covenant 
 against all persons claiming by, through, or under the grantor, and 
 the case mentioned comes literally within these terms. The doctrine 
 of estoppel applies. 64 
 
 176. PLEADING AND BURDEN OF PROOF. In an action on 
 a covenant of warranty the plaintiff must set out the covenant or 
 its substance in his declaration or complaint and then aver an evic- 
 tion by one having lawful right. 66 It is not sufficient merely to 
 negative the words of the covenant ; the eviction must be alleged.* 8 
 But it is not necessary that the facts constituting the eviction CT nor 
 
 "Curtis v. Deering, 12 Me. 499; Williamson v. Williamson, 71 Me. 442. 
 Lukcns v. Licolson, 4 Phila. R. 22. See, also, Maeder v. Carondelet, 26 Mo. 
 114. Staples v. Flint, 28 Vt. 794, semble. 
 
 See form, 2 Chit. PL 546. Brady v. Peck, 99 Ky. 42 ; 34 S. W. Rep. 206. 
 Gano v. Green, 116 Ga. 22; 42 S. E. Rep. 371. Hampton v. Webster, 56 Neb. 
 628; 77 N. W. Rep. 50; Merrill v. Suing, 66 Neb. 404; 92 N. W. Rep. 618; 
 Sears v. Broady, 66 Neb. 207; 92 N. W. Rep. 214. Dexter v. Manly, 4 Gush. 
 (Mass.) 14. A covenant of warranty should not be pleaded as a covenant for 
 quiet enjoyment. It should be pleaded according to its form, leaving the 
 effect to be determined in the action. Peck v. Houghtaling, 38 Mich. 127. 
 
 "Blanchard v. Hoxie, 34 Me. 378. Wills v. Primm, 21 Tex. 380; Raines v. 
 Callaway, 27 Tex. 678. Thompson v. Brazile, 65 Ark. 495 ; 47 S. W. Rep. 299. 
 A pleading by the covenantee, alleging inability to get possession of the 
 premises because held by a third person, claiming under a superior title, is 
 fatally bad, unless it alleges that the premises were so held at the time of 
 the warranty, or that the person in possession had been adjudged to have the 
 paramount title. Jett v. Farmers' Bank, 25 Ky. L. Rep. 817 ; 76 S. W. Rep. 
 385. 
 
 "Rickert v. Snyder, 9 Wend. (N. Y.) 420; Townsend v. Morris, 6 Cow. 
 (N. Y.) 123. Cheney v. Straube, 35 Neb. 521; 53 N. W. Rep. 479. A declara- 
 tion in covenant on a general warranty of lands, which states that the defend- 
 ant had no title at the time of the sale, that ejectment had been brought 
 against the plaintiff by a stranger, of which he gave the defendant notice, 
 and that plaintiff had afterwards been evicted in due course of law is suffi- 
 cient. Swenk v. Stout, 2 Yeates (Pa.), 470. An averment that the cove- 
 mantor had not a good and sufficient title to the land, and that by reason 
 thereof the plaintiff was ousted and dispossessed of the premises by due course 
 of law is sufficient as an averment of an eviction by title paramount. Banks 
 v. Whitehead, 7 Ala. 83. Reese v. McQuillikin, 7 Ind. 451. Mills v. Rice, 3 
 Neb. 76. In Day v. Chism, 10 Wh. (U. S.) 449, the following language in 
 the declaration " that the said O. had not a good and sufficient title to the 
 said tract of land, and by reason thereof the said plaintiffs were ousted and 
 dispossessed of the said premises by due course of law,", was held sufficient 
 as a substantial averment of an eviction by title paramount. 
 
 28
 
 434 MARKETABLE TITLE TO REAL ESTATE. 
 
 the nature of the eviction, that is, whether actual or constructive, 
 be alleged; 68 nor is it necessary that the paramount title under 
 which the eviction transpired nor the nature thereof be set forth 
 particularly. 6 ? Nor need the plaintiff allege that he relied on the 
 defendant's warranty, for that were to allege what the law pre- 
 sumes. 70 But he must aver that he was evicted by one having a law- 
 ful title 71 and that such title was older and better than that pro- 
 tected by the covenant, otherwise it would not appear but that the 
 plaintiff was evicted under a title derived from himself. 72 Of 
 course, however, if the warranty was against the claims of a par- 
 ticular person, it would be sufficient to allege that the plaintiff was 
 evicted by that person without averring that his title was older or 
 better than that of the defendant or that it existed at the time of 
 the covenant. 73 It is not necessary to aver that the title to the land 
 
 "Reese v. McQuillikin, 7 Ind. 451. Sheffey v. Gardner, 79 Va. 313. 
 
 "Talbot v. Bedford, Cooke (Term.), 447. But see Prestwood v. McGowan, 
 128 Ala. 267; 29 So. Rep. 386, where it was held that the paramount title 
 must be substantially set forth. 
 
 TO Norris v. Kipp, 74 Iowa, 444; 38 N. W. Rep. 152. 
 
 "Greenby v. Wilcox, 2 Johns. (N. Y.) 1; Webb v. Alexander, 7 Wend. 
 (N. Y.) 286. 
 
 " Wotton v. Hele, 2 Saund. 177 and n. 10; Hayes v. Bickerstaff, Vaugh. 
 118. Folliard v. Wallace, 2 Johns. (N. Y.) 395; Greenby v. Wilcox, 2 Johns. 
 (N. Y.) 1; Grannis v. Clark, 8 Cow. (N. Y.) 36. Crisfield v. Storr, 36 Md. 
 148; 11 Am. Rep. 480, and analogous cases there cite3. Pitkin v. Leavitt, 13 
 Vt. 384. Giddings v. Canfield, 4 Conn. 482. Jones v. Jones, 87 Ky. 82; 7 
 S. W. Rep. 886; Chenault v. Thomas, 26 Ky. L. Rep. 1029; 83 S. W. Rep. 109. 
 So, also, in an action for rent a plea of eviction by title paramount must aver 
 that such title existed before the demise. Naglee v. Ingersoll, 7 Pa. St. 185, 
 205. An averment that the plaintiff was evicted by the holder of " a superior 
 and better title than the one sold by the defendant," is sufficient as an aver- 
 ment that the plaintiff was not evicted under a title derived from himself. 
 Woodward v. Allen, 3 Dana (Ky.), 164. 
 
 "Patton v. Kennedy, 1 A. K. Marsh. (Ky.) 389; 10 Am. Dec. 744; Pence 
 v. Duval, 9 B. Mon. (Ky. ) 49. The necessity for such an averment is even 
 greater where there have been several intermediate conveyances, as in the 
 latter case it would be intended, if the declaration did not aver that the 
 title of the party evicting was older and better and existing at the date of 
 the covenant, that he had derived it from one of the intermediate grantees. 
 In such a case the title of the party evicting might well be older and better 
 than that of the defendant in the ejectment, and yet not older and better than 
 that of the covenantor, and if it was not older and better than the latter there 
 would be no breach of the covenant. Language of GBASON, J., in Crisfield v. 
 Storr, 36 Md. 148; 11 Am. Rep. 480. An averment that a stranger had
 
 COVENANTS OF WABRANTY AND FOR QUIET ENJOYMENT. 435 
 
 has been tried; it is sufficient to aver an eviction by paramount 
 title, and the superiority of that title will be determined at the 
 trial; 74 nor is it necessary, where the plaintiff was evicted by judg- 
 ment and process in a possessory action, to aver that the de- 
 fendant had notice of the action and was requested to defend it. 76 
 Nor is it necessary to allege that the grantor did not, after execut- 
 ing the covenant, acquire a title which would enure to the benefit 
 of the grantee by estoppel ; 76 nor that the covenantee relied on the 
 warranty, since that is a presumption of law. 77 The covenant must, 
 of course, be truly described, and the breach averred not to be 
 within any of the restrictions, limitations or qualifications of the 
 covenant if any, contained in the deed. Thus, where the declara- 
 tion set forth a conveyance and warranty of the entire estate in 
 fee, and a conveyance with warranty, subject to a mortgage, ap- 
 peared in evidence, the variance was held fatal. 78 The plaintiff 
 must also allege that the title or claim under which he was evicted, 
 came within the defendant's covenants. 79 It will be sufficient, how- 
 ever, if the covenant be stated according to its legal effect and not 
 in the precise language of the deed. 80 
 
 Burden of proof. The plaintiff in an action for breach of the 
 covenant of warranty alleging an eviction, as he must, has the 
 affirmative of the issue, and the burden of proof lies on him to 
 show the eviction under a lawful title older than that under which 
 he held. 81 But the burden shifts if the defendant so pleads as to 
 have the affirmative himself. Thus, where the breach alleged was 
 that the title was outstanding in another by reason of which the 
 plaintiff could not get possession, and the defendant pleaded -that 
 
 brought suit and recovered the land, without alleging against whom he 
 recovered, or that the plaintiffs (grantee's) title had been called in question, 
 or that the title of such .claimant was superior to that of the plaintiff, does 
 not sufficiently allege a breach of the covenant of warranty. Wills v. Primm, 
 21 Tex. 380. 
 
 "Fatten v. Kennedy, 1 A. K. Marsh. (Ky.) 288; 10 Am. Dec. 744. 
 
 "Rhode v. Green, 26 Ind. 83. 
 
 "Mason v. Cooksey, 51 Ind. 519. 
 
 "Norris v. Kipp, 74 Iowa, 444; 38 N. W. Rep. 152. 
 
 "Shafer v. Wiseman, 47 Mich. 63; 10 N. W. Rep. 104. 
 
 "Dexter v. Manly, 4 Cush. (Mass.) 14. 
 
 "Bland v. Thomas (Ky.), 3 S. W. Rep. 595. 
 
 n Peck v. Houghtaling, 88 Mich. 127. Holladay v. Menifee, 30 Mo. App. 216.
 
 436 
 
 MARKETABLE TITLE TO BEAL ESTATE. 
 
 the better title was not so outstanding but had been by himself con- 
 veyed to the plaintiff, it was held that the burden was upon him to 
 show that the title so conveyed was paramount. 82 And if the cove- 
 nantee shows that he has been evicted or kept out of possession by 
 one claiming title the burden lies upon the covenantor to show that 
 his title was paramount to that of the evictor. The reason for this 
 rule is that a party in possession of lands is always presumed to 
 have a valid title. 83 
 
 The deed containing the covenant if properly executed and 
 recorded, will be received in evidence to show the warranty, with- 
 out proof of its execution. 84 
 
 177. COVENANT FOB QUIET ENJOYMENT. The covenant 
 for quiet enjoyment and the covenant for warranty are in effect 
 the same, 85 the only difference being, it seems, that the former is 
 broken by an actual disturbance of the possession of the covenantee 
 by one having a superior right, while the latter is not broken until 
 the disturbance has culminated in an eviction. 86 Thus, ejectment 
 brought by the true owner against the covenantee is a breach of 
 the covenant for quiet enjoyment, while there is no breach of the 
 covenant of warranty until the action has resulted in an eviction. 87 
 
 "Owen v. Thomas, 33 111. 320. In Georgia it has been held that if the 
 covenantee shows that since his purchase the land has been sold under execu- 
 tion against a stranger, and that he surrendered the possession of such pur- 
 chase (the defendant in the execution having had possession after judgment 
 entered against him), the burden will be cast on the covenantor to show that 
 the person to whom the surrender was made did not have the better title. 
 Taylor v. Stewart, 54 Ga. 81. 
 
 M Heyn v. Ohman, (Neb.) 60 N. W. Rep. 952, citing Ward v. Mclntosh, 12 
 Ohio St. 231. Jones v. Bland, 112 Pa. St. 176; 2 Atl. Rep. 541. Brown v. 
 Feagin, 37 Neb. 256; 55 N. W. Rep. 1048. 
 
 "Williams v. Weatherbee, 2 Aik. (Vt.) 337. 
 
 3 Washb. Real Prop. 467 (660) ; Rawle Covts. for Title (5th ed.), 96. 
 Fowler v. Poling, 2 Barb. (N. Y.) 300; Rea v. Minkler, 5 Lans. (N. Y.) 196. 
 
 See 2 Sugd. Vend. 273 (601) and Rawle Covts. for Title (5th ed.), 130, 
 where it is said that a suit in equity against the purchaser threatening the 
 title is a breach of the covenant for quiet enjoyment. A lessee claiming that 
 he has been evicted from a ground rent, must show that his tenancy has been 
 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. 
 
 17 Stewart v. West, 14 Pa. St. 336.
 
 COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 437 
 
 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. 88 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,* 9 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. 90 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 the lease itself in case of a tortious disturbance by 
 the lessor. 11 
 
 The covenant for quiet enjoyment like the covenant of warranty, 
 is not a covenant that the grantor is seised of an indefeasible estate. 
 Therefore, it is not broken where the grantor, purporting to convey 
 a fee, had only a life estate, so long as the grantee remains in the 
 undisturbed possession of the life estate. 92 
 
 "Sudg. Vend. (14th ed.) 601; Rawle Covts. (5th ed.), 130. 
 
 "Ante, 142. 
 
 "Moore v. Weber, 71 Pa. St. 429; 10 Am. Rep. 708. 
 
 "Dexter v. Manly, 4 Cush. (Mass.) 14. 
 
 "Wilder v. Ireland, 8 Jones L. (N. C.) 88. Of course, if the life estate has
 
 CHAPTEK XV. 
 
 COVENANT FOR FURTHER ASSURANCE. 
 
 IN GENERAL. 178. 
 
 BREACH. ESTOPPEL. ASSIGNABILITY. 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." 1 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 in- 
 frequent 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. 8 The execution of the further assurance will, of 
 course, operate to pass any estate which the vendor may have ac- 
 quired 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 
 
 fallen in and the reversioner has entered, the covenant is broken. Parker v. 
 Hichardson, 8 Jones L. (N. C.) 452. 
 
 *Rawle Covts. (5th ed.) p. 29. This language does not in terms require the 
 vendor to remove an incumbrance from the premises. It seems, however, that 
 the agreement " to make and execute such other assurances " is construed to 
 have that effect. 2 Sudg. Vend. 294 (613) ; Platt Covts. 344. King v. Jones, 
 5 Taunt. 427. 
 
 'Post, 207. 2 Sugd. Vend. 294 (613); Rawle Covts. (5th ed.), 98. 
 Cochran v. Pascault, 54 Md. 16. 
 
 S 2 Sugd. Vend. (14th Eng. ed.) 613. King v. Jones, 5 Taunt. 427. This 
 covenant will be found of great practical importance where the purchaser 
 desires to compel the grantor to remove an incumbrance from the estate which 
 exceeds the purchase price of the premises. This cannot be done under a 
 covenant of warranty. East Tenn. Nat. Bank v. First Nat. Bank, 7 Lea 
 (Tenn.), 420, and it may be doubtful whether it can be done under a cove- 
 nant against incumbrances under the rule which limits the liability of the 
 covenantor to the consideration money and interest. Ante, 131.
 
 COVENANT FOE FURTHER ASSURANCE. 439 
 
 covenant for further assurance as it is usually written. In this 
 respect, it is dependent upon the other covenants for title, so that 
 if those covenants are of a kind that will not entitle the purchaser 
 to a conveyance of the after-acquired estate, or to have au iiicum- 
 brance removed by the vendor, he cannot call for such relief in 
 equity merely because his deed contains a covenant for further 
 assurance. In other words, such a covenant in a mere quit claim 
 or release would not entitle the purchaser to require the conveyance 
 of any estate which the grantor may thereafter have acquired. 4 
 Nor can the purchaser demand, under the covenant for further 
 assurance, the conveyance of a greater estate or interest than that 
 to which he is entitled under the original conveyance. 5 But an 
 express covenant in a quit-claim deed to convey the after-acquired 
 estate will, of course, entitle the grantee to such a conveyance- 8 
 
 A covenant for further assurance operates in one respect as well 
 for the protection of the grantor as for the benefit of the grantee. 
 Thus, it has been held that the grantor has a right to acquire an 
 outstanding paramount title to the estate by reason of this 
 covenant, and to tender the title so acquired in satisfaction of a 
 breach of the other covenants for title. 7 
 
 179. WHAT CONSTITUTES BREACH. ESTOPPEL. ASSIGN- 
 ABILITY. DAMAGES. The covenant for further assurance is not 
 broken until the grantor refuses to execute such further conveyance, 
 
 This is Mr. Rawle's opinion (Covts. for Title [5thed.l, 105), citing Davis 
 v. Tollemache, 2 Jur. (N. S.), 1181, and it seems clearly sustainable, both 
 upon reason and authority. But a contrary view seems to have been taken, 
 in the case of Bennett v. Waller, 23 111. 106, where it was said that under a 
 covenant for further assurance contained in a quit-claim deed " a subsequent 
 title enures as well as under a covenant of warranty." This case can probably 
 be explained upon the ground that the quit claim under consideration was not 
 a mere relase of all the grantor's right or interest, but a conveyance of an 
 estate of a particular description, which operates to estop the grantor as well 
 as a conveyance with general warranty. Van Rensselaer v. Kearney, 11 How. 
 (U. S.) 297. In Armstrong v. Darby, 26 Mo. 517, it was held that a covenant 
 for further assurance in a conveyance with covenant against incumbrances 
 created by the grantor only, did not oblige the grantor to remove an incum- 
 brance not created by himself. 
 
 5 Taylor v. Dabar, 1 Ch. Cas. 274. Uhl v. Ohio River R. Co., 51 W. Va. 106; 
 41 S. E. Rep. 340. 
 
 Lamb v. Burbank, 1 Sawy. (C. C.) 227. 
 
 T Cochran v. Pascault, 54 Md. 1. Building Co. v. Fray, 96 Va. 559; 32 
 S. E. Rep. 58.
 
 devised and tendered by the purchaser, as he may reasonably re- 
 quire, or to do some act or thing necessary to perfect the title, 
 such as may be reasonably insisted upon by the purchaser. 8 The 
 vendor cannot be required to execute useless and unnecessary con- 
 veyances, 9 nor to do acts in themselves impracticable ; 10 such as to 
 procure a conveyance from a person non compos mentis, 11 or to pro- 
 cure a certain thing to be done by one physically incapable of per- 
 formance. 12 The thing to be done must also be lawful," and the 
 request therefor must be made within a reasonable time." 
 
 The covenant for further assurance will estop tho grantor from 
 setting up an after-acquired title to the estate. 18 The better opinion 
 seems to be that this covenant operates an actual transfer of the 
 after-acquired estate; 16 it has been held, however, that the cove- 
 nant for further assurance gives the grantee merely a right to call 
 for a conveyance of the after-acquired estate, and to compel a 
 specific performance of the covenant in equity." 
 
 The covenant for further assurance is necessarily prospective in 
 its operation, and passes with the land to subsequent grantees. 1 * 
 The breach, when it occurs, is a continuing one, and may be availed 
 
 Rawle Covts. (5th ed.), 99. Bennet's Case, Cro. Eliz. 9. Miller v. 
 Parsons, 9 Johns. (N. Y.) 336. Fields v. Squires, Deady (U. S.), 388. The 
 covenant for further assurance is broken if the grantor refuses to procure a 
 release of an incumbrance upon the premises which he is bound to discharge. 
 Colby v. Osgood, 29 Barb. (N. Y.) 349. 
 
 Gwynn v. Thomas, 2 G. & J. (Md.) 420. 
 
 "2 Sugd. Vend. 295 (613). In Armstrong v. Darby, 26 Md. 517, it was 
 held that the statutory covenant for further assurance implied in the words 
 " grant, bargain and sell " embraces only such incumbrances as the vendor 
 has control of; and that if a defect cannot be supplied by the grantor, as 
 where there is an outstanding mortgage created by a prior grantor, the 
 vendor cannot be made liable on his covenant for further assurance. 
 
 11 Anon., Moore, 124. 
 
 "Anon., Moore, 124, a case in which it was sought to compel a woman in 
 travail to execute the assurance. 
 
 "Heath v. Crealock, L. R., 10 Ch. App. 31. 
 
 "Nash v. Ashton, T. Jones, 195. 
 
 " Pierce v. Milwaukee R. Co., 24 Wis. 563. Bennett v. Waller, 23 111. 183. 
 
 "Bennett v. Waller, 23 111. 183. 
 
 "Chauvin v. Wagner, 18 Mo. 531. 
 
 1$ Bennett v. Waller, 23 111. 97. Colby v. Osgood, 29 Barb. (Ky.) 339. 
 Clarke v. Priest, 47 N. Y. Supp. 489; 21 App. Div. 174.
 
 COVENANT FOE FURTHER ASSURANCE. 441 
 
 of by him who suffers the ultimate damage, though he be not the 
 one who made the demand for further assurance. 19 
 
 The plaintiff can recover nominal damages only for a breach of 
 the covenant for further assurance, unless he can show that he has 
 sustained actual damages. The mere refusal of the vendor to exe- 
 cute the further assurance would not entitle the grantee to actual 
 damages unless he could show that he had sustained the ultimate 
 damage that would result from the refusal. 20 If the grantor should 
 refuse to satisfy an incumbrance on the premises, and the grantee 
 should be compelled to discharge it to protect his title, he would 
 doubtless be permitted to recover as damages the amount so paid 
 by him, provided, it is apprehended, such amount do not exceed the 
 consideration money and interest. 11 
 
 "Rawle Covts. (5th ed.), 230. 
 
 "Rawle Covts. for Title (5th ed.), 195. Burr v. Todd, 41 Pa. St. 213, 
 rtiter. Questions as to the measure of damages for a breach of the cove- 
 nant for further assurance are not likely to arise. First, because the remedy 
 upon this covenant is usually sought in equity; and, secondly, because such 
 facts as would entitle the purchaser to substantial damages for a breach of 
 this covenant would nearly, if not always, amount to a breach of the covenant 
 against incumbrances or that of warranty, and the purchaser in most cases 
 ontents himself with an action on those covenants. 
 
 M This in analogy to the rule that the damages for a breach of the covenant 
 f warranty, seisin or against incumbrances, is to be measured by the con- 
 sideration money. No reason why he should be allowed a greater measure of 
 damages for the breach of the one covenant than for the breach of the other 
 can be perceived.
 
 CHAPTER XVI. 
 
 DETENTION OF THE PURCHASE MONEY WHEN THERE HAS BEEN 
 A BREACH OF THE COVENANTS FOR TITLE. 
 
 GENERAL RULE. 180. 
 
 MERGER OF PRIOR AGREEMENTS. 181. 
 PURCHASE WITH KNOWLEDGE OF DEFECT. 182. 
 RECOUPMENT. 183. 
 
 RECOUPMENT IN FORECLOSURE OF PURCHASE-MONEY MORT- 
 GAGE. 184. 
 
 PARTIAL FAILURE OF CONSIDERATION. 185. 
 ASSUMPSIT TO TRY TITLE. 186. 
 WHAT CONSTITUTES EVICTION. 187. 
 DISCHARGE OF INCUMBRANCES. 188. 
 RULE IN TEXAS. 189. 
 RULE IN SOUTH CAROLINA. 190. 
 PLEADINGS. 191. 
 RESUME. 192. 
 
 180. GENERAL RULE. In most cases the detention of the 
 purchase money by the purchaser of lands on failure of the title, 
 amounts to an election on his part to rescind the contract. In a 
 subsequent portion of this work 1 under the head of " Remedies in 
 Disaffirmance or Rescission of the Contract of Sale," the several 
 rules which determine the rights of the purchaser in this respect, 
 will be found stated at large, except the rules which apply where 
 the contract has been executed by a conveyance with certain cove- 
 nants for title, and the purchaser, when sued for the purchase 
 money, sets up as a defense, by way of counterclaim or recoup- 
 ment, his eviction from the premises by one holding under a prior 
 incumbrance or a better title. This is equivalent to an independent 
 action by the purchaser to recover for a breach of the covenants for 
 title, and is, therefore, an affirmance of the contract on his part. 
 Hence, it has been deemed proper to separate this branch of the 
 law of detention of the purchase money from the general treatment 
 of that subject, and to discuss the same in this place as one of the 
 remedies of the purchaser in affirmance of the contract after the 
 acceptance of a conveyance with covenants for title. We, there- 
 fore, proceed to lay down the following rule, which should be read 
 
 'Post, ch. 24, et seq.
 
 DETENTION OF PURCHASE MONEY BREACH OP COVENANT. 443 
 
 as one of the series of propositions of law governing the right of 
 the purchaser to recover back or to detain the purchase money, as 
 set forth in another part of this work. 2 
 
 // the contract has been executed by the delivery and acceptance 
 of a conveyance containing a covenant of warranty, or for quiet 
 enjoyment, or against incumbrances, and there has been such a 
 breach of those covenants as would give the grantee a present right 
 to recover substantial damages against the grantor, the former will, 
 in an action against him for the purchase money, be allowed to set 
 up such breach as a defense by way of recoupment of the plaintiff's 
 demand. If there has been no such breach the grantee cannot 
 detain the purchase money. 3 
 
 * These propositions are to be found, post, 237. 
 
 'Rawle Covt. (5th ed.) 326; 2 Warvelle Vend. 919; 2 Sugd. Vend. (8th 
 Am. ed.) 193 (549) note g. (As to what constitutes a breach of the several 
 covenants for title, see ante, the chapters treating of them respectively.) 
 Greenleaf v. Queen, 1 Pet. (U. S.) 138; Noonan v. Lee, 2 Bl. (U. S.) 499; 
 Kimball v. West, 15 Wall. (U. S.) 377. Prevost v. Gratz, 3 Wash. (C. C.) 
 439. Brisco v. Mining Co., 82 Fed. 952. In the case of Patton v. Taylor, 7 
 How. (U. S.) 132, it was held that the covenantee could not detain the pur- 
 chase money, in the absence of a breach of the covenant of warranty, though 
 the covenant was insolvent. To the text; Peden v. Moore, 1 Stew. & P. 
 (Ala.) 81; 21 Am. Dec. 649, 06. diet.; Wilson v. Jordan, 3 Stew. & P. (Ala.) 
 92; Dunn v. White, 1 Ala. 645; Cullum v. Bank, 4 Ala. 21; 37 Am. Dec. 725; 
 Cole v. Justice, 8 Ala. 793; Tankersly v. Graham, 8 Ala. 247; Knight v. 
 Turner, 11 Ala. 639; McLemore v. Mabson, 20 Ala. 139; Thompson v. Chrisian, 
 28 Ala. 399; Helvenstein v. Higgason, 35 Ala. 262; Garner v. Leaverett, 32 
 Ala. 410; Thompson v. Sheppard, 85 Ala. 611; 5 So. Rep. 334; Frank v. 
 Riggs, 93 Ala. 252; 9 So. Rep. 359; Heflin v. Phillip, (Ala.) 11 So. Rep. 729. 
 Wheat v. Dotson, 12 Ark. 699; McDaniel v. Grace, 15 Ark. 135; Robarda v. 
 Cooper, 16 Ark. 288; Key v. Henson, 17 Ark. 254; Hoppes v. Cheek, 21 Ark. 
 585; Lewis v. Davis, 21 Ark. 239; Busby v. Treadwell, 24 Ark. 457; Sorrella 
 v. McHenry, 38 Ark. 127. But in a suit to foreclose a vendor's lien the cove- 
 nantee may have credit for all sums necessarily paid by him to protect the 
 title. Morris v. Ham, 47 Ark. 293. Possession of a part of the premises by a 
 mere intruder without color of title, through a mistake as to boundaries, is 
 not such a breach of the covenant for quiet enjoyment as will entitle the 
 purchaser to detain the purchase money. Hoppes v. Cheek, 21 Ark. 585. 
 Where the vendor agreed to convey the property before payment of the pur- 
 chase money, and the purchaser accepted a deed which conveyed none of the 
 property purchased, and afterwards discovered the error, it was held that he 
 might refuse to pay the purchase money until the vendor should execute a 
 proper conveyance of the premises. McConnell v. Little, 51 Ark. 333; US. 
 W. Rep. 371. To the text: Salmon v. Hoffman, 2 Cal. 138; 56 Am. Dec. 322; 
 Fowler v. Smith, 2 Cal. 39. In Norton v. Jackson, 5 Cal. 262, it was held
 
 444 MARKETABLE TITLE TO REAL ESTATE. 
 
 " Generally speaking," says Sugden, " a purchaser, after a con- 
 veyance, has no remedy except upon the covenants he has obtained, 
 
 that eviction by process of law was necessary to enable the covenantee to 
 set up breach of warranty as a defense in an action for the purchase money. 
 To the text: Kurd v. Smith, 5 Colo. 233. Smoot v. Coffin, 4 Mackey (D. C.), 
 407; Bletz v. Willis, 19 D. C. 449. McGhee v. Jones, 10 Ga. 135; Roberts v. 
 Woolbright, 1 Ga. Dec. 98. Brantley Co. v. Johnson, 102 Ga. 850; 29 S. E. 
 Rep. 486. But in Smith v. Hudson, 45 Ga. 208, it was held that the purchaser 
 might detain the purchase money if he could show that his remedey upon the 
 warranty would not protect him. It would seem, also, that he might detain 
 the purchase money in that State if there had been a judgment against him 
 in ejectment, though there had been no actual eviction, since such a judgment, 
 without eviction, amounts to a breach of warranty in Georgia. Clark v. 
 Whitehead, 47 Ga. 516, overruling Leary v. Durham, 4 Ga. 593. Where a 
 purchaser caused the conveyance with warranty to be made to a sub-purchaser, 
 himself remaining liable for the purchase money, it was held that he could 
 not, in an action against him for the purchase money, avail himself of the 
 breach of warranty in the conveyance to the sub-purchaser, even though he 
 held the sub-purchaser's notes as collateral. Gordon v. Phillips, 54 Ga. 240. 
 To the text: Deal v. Dodge, 26 111. 458; Vining v. Leeman, 45 111. 246; 
 Whitlock v. Denlinger, 59 111. 96; Lafarge v. Matthews, 68 111. 328; People 
 v. Sisson, 98 111. 335. The same rule applies in case of the eviction of a lessee 
 by paramount title. Pepper v. Rowley, 73 111. 262. In Buckles v. Northern 
 Bank of Ky., 63 111. 268, 271, the rule is qualified by the statement that such 
 a defense cannot be made so long as the possession of the vendee remains 
 undisturbed and the paramount title unasserted. The qualification is obscure, 
 in that it does not appear what is meant by the assertion of the paramount 
 title, whether a suit prosecuted or threatened, or a suit which has resulted 
 in a judgment of eviction. The rule that failure of title cannot be set up as 
 a defense where there has been no breach of the vendor's covenants does not 
 apply where the purchase-money notes and mortgage expressly provide that 
 they shall not be paid until the title has been perfected. Smith v. Newton, 
 38 111. 230; Weaver v. Wilson, 48 111. 128. Whisler v. Hicks, 5 Bl. (Ind.) 
 100; 33 Am. Dec. 454; Smith v. Ackerman, Id. 541. In both of these cases 
 the objection made to the payment of the purchase money was an outstanding 
 contingent right of dower in the wife of the vendor. To the text: Buell v. 
 Tate, 7 Bl. (Ind.) 55; Pomeroy v. Burnett, 8 Bl. (Ind.) 142; Oldfield v. 
 Stevenson, 1 Ind. 153; Streeter v. Henley, 1 Ind. 401; Clark v. Snelling, 
 1 Ind.. 382; Hooker v. Folson, 4 Ind. 90; Wilkerson v. Chadd, 14 Ind. 448; 
 Laughery v. McLean, 14 Ind. 106; Estep v. Estep, 23 Ind. 114; Starkey v. 
 Neese, 30 Ind. 222 ; Stephens v. Evans, 30 Ind. 39 ; Hanna v. Shields, 34 Ind. 
 84; James v. Hayes, 34 Ind. 272, distinguishing Murphy v. Jones, 7 Ind. 529; 
 Brewer v. Parker, 34 Ind. 172; Cartwright v. Briggs, 41 Ind. 184; Strain v. 
 Huff, 45 Ind. 222 ; Cornwell v. Clifford, 45 Ind. 392 ; Mahoney v. Robbins, 49 
 Ind. 146; Jones v. Noe, 74 Ind. 368; Gibson v. Richart, 83 Ind. 313; Bethell 
 v. Bethell, 92 Ind. 318; Marsh v. Thompson, 102 Ind. 272; 1 N. E. Rep. 630; 
 Parker v. Culbertson, (Ind.) 27 N. E. Rep. 619. Grubbs v. Barber, 102 Ind. 
 131; 1 N. E. Rep. 636; Pearson v. Wood, 27 Ind. App. 419; 61 N. E. Rep.
 
 DETENTION OF PURCHASE MONEY BREACH OF COVENANT. 445 
 
 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 
 
 593. In Small v. Reeves, 14 Ind. 163, a leading case in that State, the rule 
 was thus stated: "Where a deed (with covenants) is made and accepted, 
 and possession taken under it, want of title will not enable the purchaser to 
 resist the payment of the purchase money or recover more than nominal 
 damages on his covenants while he retains the deed and possession, and has 
 been subjected to no inconvenience or expense on account of the defect of 
 title." In Fehrle v. Turner, 77 Ind. 530, a purchaser was permitted to show 
 that a suit to recover part of the land was being prosecuted against him, and 
 to enjoin proceedings to collect the purchase money, until the adverse claim- 
 ant's suit should be determined. Overruling Strong v. Downing, 34 Ind. 300. 
 In Peterson v. McCullough, 50 Ind. 35, the purchaser claimed an abatement of 
 the purchase money by reason of an incumbrance resulting from the right of 
 a canal company to overflow part of the land. Relief was denied on the 
 ground that the evidence did not show an easement in the company by pre- 
 scription. To the text: Allen v. Pegram, 16 Iowa, 163; Nosier v. Hunt, 18 
 Iowa, 212; Gifford v. Ferguson, 47 Iowa, 451; Burrows v. Stryker, 47 Iowa, 
 477. Of course, it is no defense to an action for the purchase money that 
 incumbrances on the land were not removed by the grantor, until a few days 
 before the commencement of such suit. Winch v. Bolton, (Iowa) 63 N. W. 
 Rep. 330. In Blasser v. Moats, (Iowa) 46 N. W. Rep. 1076, a purchaser who 
 had taken a conveyance with general warranty and a verbal agreement that 
 the vendor would procure his wife to sign the deed, was permitted to resist 
 the payment of the purchase money on the ground that the wife had not 
 signed the deed. To the text : Scantlin v. Anderson, 12 Kans. 85 ; Chambers 
 v. Cox, 23 Kans. 393; Sunderland v. Bell, 39 Kans. 21, 663. Ingraham v. 
 Ward, 56 Kans. 550; 44 Pac. Rep. 14. Lewis v. Norton, 5 T. B. Mon. (Ky.) 
 1; Rawlins v. Timberlake, 6 T. B. Mon. (Ky.) 225; Miller v. Long, 2 A. K. 
 Marsh. (Ky.) 334; Gale v. Conn, 3 J. J. Marsh. (Ky.) 538; Simpson v. 
 Hawkins, 1 Dana (Ky.), 303; Taylor v. Lyon, 2 Dana (Ky.), 276; Casey r. 
 Lucas, 2 Bush (Ky.), 55; Trumbo v. Lockridge, 4 Bush (Ky.), 416; Butte 
 v. Riffe, 78 Ky. 353; Bellfont Iron Wks. v. McGuire, (Ky.) 11 S. W. Rep. 
 203. Com. School Dist. v. Conrad, 19 Ky. Law R. 199; 39 S. W. Rep. 497; 
 Vivian v. Stevens, (Ky.) 56 S. W. Rep. 520. In Pryse v. McGuire, 81 Ky. 608, 
 it was heid that if the purchaser had never been put in possession, he might 
 defend an action for the purchase money on the ground of failure of the title, 
 though there had been no eviction. It will be remembered, however, that 
 inability of the grantee to get possession is a constructive eviction for the 
 premises. Ante, 146. If the purchaser take a deed with general warranty 
 from the husband, he will be deemed to have relied on the warranty, and can- 
 not enjoin the collection of the purchase money unless he be evicted by the 
 doweress. Booker v. Meri weather, 4 Litt. (Ky.) 212. A restriction in a prior 
 deed by which a subsequent grantee is preventable from selling liquor on the 
 premises, will not entitle such grantee to detain the purchase money, the 
 covenantor being alive and solvent. Smith v. Jones, (Ky. ) 31 S. W. Rep. 
 475. In Louisiana, owing to the prevalence of the civil law, which disregards 
 the rule caveat emptor, the distinction between executed and executory con-
 
 446 MARKETABLE TITLE TO EEAL ESTATE. 
 
 the seller, the purchaser's only remedy is under the covenants."* 
 Practically the same rule exists in many of the American States, 
 
 tracts with respect to the detention of the purchase money on failure of the 
 tifle, is not observed. A perfect outstanding title in a stranger ia held 
 equivalent to eviction in that State, and entitles the grantee to rescind the 
 contract. McDonald v. Vaughan, 14 La. Ann. 716. One who buys land at a 
 sale under execution against himself, and sells the land again, cannot refuse 
 to pay the original price on the ground that the property is incumbered 
 no claim on that account having been made against him. Oakey v. Drum- 
 mond, 7 La. Ann. 205. To the text: Wentworth v. Goodwin, 21 Me. 150, 
 semble; Jenness v. Parker, 24 Me. 289, semble. Timins v. Shannon, 19 Md. 
 296, 316; 81 Am. Dec. 632. In Middlekauff v. Barrick, 4 Gill (Md.), 290, 
 it was broadly stated that if there was no fraud the purchaser had no remedy 
 except upon his covenants, although he had been evicted by an adverse 
 claimant. It does not appear, however, that this language was intended to 
 restrict the covenantee's right to avail himself of a breach of covenant by way 
 of recoupment. To the text: Lothrop v. Snell, 11 Cush. (Mass.) 453; Bart- 
 lett v. Tarbell, 12 Allen (Mass.), 125; Knapp v. Lee, 3 Pick. (Mass.) 459; 
 Rice v. Goddard, 14 Pick. (Mass.) 293. Haldane v. Sweet, 55 Mich. 196; 20 
 N. W. Rep. 902; Pfirrman v. Wattles, (Mich.) 49 N. W. Rep. 40; Leal v. 
 Terbush, 52 Mich. 100; 17 N. W. Rep. 713, semMe. This was an action to 
 recover back purchase money paid by a covenantee. The court does not advert 
 to the rule remitting the purchaser to his action on the covenants, but rests 
 its decision refusing the purchaser relief, on the ground that the entire con- 
 sideration had not failed. To the text: Anderson v. Lincoln, 5 How. (Miss.) 
 279; Coleman v. Rowe, 5 How. (Miss.) 460; 37 Am. Dec. 164. The contract 
 was executory in this case, but the vendor had executed a bond to make title. 
 Vick v. Percy, 7 Sm. & M. (Miss.) 256; 45 Am. Dec. 303; Walker v. Gilgert, 7 
 Sm. & M. (Miss.) 456; Hoy v. Taliaferro, 8 Sm. & M. (Miss.) 727; McDonald 
 v. Green, 9 Sm. & M. (Miss.) 138, semlle; Duncan v. Lane, 8 Sm. & M. 
 (Miss.) 744; Gilpin v. Smith, 11 Sm. & M. (Miss.) 129; Heath v. Newman, 
 11 Sm. & M. (Miss.) 201; Dennis v. Heath, 11 Sm. & M. (Miss.) 206; 49 
 Am. Dec. 51; Johnson v. Jones, 13 Sm. & M. (Miss.) 580; Wailes v. Cooper, 
 24 Miss. 232; Harris v. Rowan, 24 Miss. 504; Winstead v. Davis, 40 Miss. 
 785; Ware v. Houghton, 41 Miss. 382; 93 Am. Dec. 258, 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 Mo. 647; Connor v. 
 Eddy, 25 Mo. 75; Wellman v. Dismukes, 42 Mo. 101; Eddington v. Nix, 49 
 Mo. 134; Wheeler v. Standley, 40 Mo. 509; Mitchell v. McMullen, 59 Mo. 
 252 ; Hart v. Railroad Co., 65 Mo. 509 ; Key v. Jennings, 66 Mo. 356 ; Hunt 
 v. Marsh, 80 Mo. 398. A purchaser who accepts a conveyance from a stranger 
 thereby waives his right to recover from the vendor money paid in removing 
 incumbrances from the land. Herryford v. Turner, 67 Mo. 296. To the text: 
 Mills v. Saunders, 4 Neb. 190. Perkins v. Bamford, 3 N. H. 522; Getchell v. 
 Chase, 37 N. H. 106; Drew v. Towle, 7 Fost. (N. H.) 412; 54 Am. Dec. 309, 
 where the rule stated in the text was held to apply only where there has been 
 
 4 Sudg. Vend. (8th Am. ed.) 383 (251); 2 id. 193 (549).
 
 DETENTION OF PURCHASE MONEY BREACH OF COVENANT. 447 
 
 with this qualification, that in any case in which there has been a 
 breach of the covenants which the purchaser has received, for 
 
 a total failure of the consideration. To the text: Beach v. Waddell, 4 Halst. 
 Ch. (N. J.) 299. Kuhnen v. Parker, 56 N. J. Eq. 286; 38 Atl. Rep. 641. 
 In Copper v. Bloodgood, 32 N. 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 appropriation. To the text: Bumpuss v. 
 Plainer, 1 Johns. Ch. (N. Y.) 213; Abbott v. Allen, 2 Johns. Ch. (N. Y.) 
 519; 7 Am. Dec. 554; Woodruff v. Bunce, 9 Paige Ch. (N. Y.) 443; 38 Am. 
 Dec. 559; Miller v. Avery, 2 Barb. Ch. (N. Y.) 594; Woodworth v. Jones, 2 
 Johns. Cas. (N. Y.) 417; Lattin v. Vail, 17 Wend. (N. Y.) 188; Whitney v. 
 Lewis, 21 Wend. (N. Y.) 131; Tallmadge v. Wallis, 25 Wend. (N. Y.) 118; 
 Edwards v. Bodine, 26 Wend. (N. Y.) 109; Batterman v. Pierce, 3 Hill (N. 
 Y.), 171; Lamerson v. Marvin, 8 Barb. (N. Y.) 14; Farnham v. Hotchkiss, 
 2 Keyes (N. Y.), 9; Ryerson v. Willis, 81 N. Y. 277; Gifford v. Society, 104 
 N. Y. 139; 10 N. E. Rep. 39; Dunning v. Leavitt, 85 N. Y. 30; 39 Am. Rep. 
 617; Clanton v. Surges, 2 Dev. Eq. (N. C.) 13; Wilkins v. Hogue, 2 Jones 
 Eq. (N. C.) 479. In Mills v. Abraham, 6 Ired. (N. 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 purchase 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. Norris, 1 Ohio, 524; Hill v. Butler, 
 6 Ohio, 216. Under the same statute the purchaser might have deducted 
 from the purchase money by way of counterclaim the amount of an incum- 
 brance 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: Fellows 
 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 Pennsylvania 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 damages 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, 88 Pa. St. 32. Price v. Hubbard, 
 8 S. Dak. 92; 65 N. W. Hep. 436. To the text: Elliott v. Thompson, 4 Humph. 
 (Tenn.) 09; 40 Am. Dec. 630; White v. Ewing, 69 Fed. 451; Young Y. Butler,
 
 448 MARKETABLE TITLE TO REAL ESTATE. 
 
 which he would be entitled to recover substantial damages, he may 
 in an action against him for the purchase money recoup the amount 
 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 here- 
 after 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 
 
 1 Head (Term.), 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. McWhirter v. Swaffer, 6 Baxt. (Tenn.) 342. In McNew T. 
 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. 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 owner were barred by the Statute of Limitations. 
 For the Texas doctrine relating to detention of the purchase money, see 
 post, 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 accept- 
 ance of a conveyance, see post, 337. To the text: Horton v. Arnold, 18 
 Wis. 212; Eaton v. Tallmadge, 2& Wis. 526; Smith v. Hughes, 50 Wis. 620; 
 7 N. W. Rep. 653; Bardeen v. Markstrvrm, 64 Wis. 613; 25 N. W. Rep. 565. 
 Campbell v. Medbury, 5 Biss. (C. C.) 33. In Hall v. Gale, 14 Wis. 54, and 
 Walker v. Wilson, 13 Wis. 522, the non-existence 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 held a breach of the covenant of warrant/ 
 entitling him to detain the purchase money. 
 
 5 Ante, cases cited n. 3, p. 443. 
 
 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
 
 DETENTION OF PURCHASE MONEY BREACH OF COVENANT. 449 
 
 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 de- 
 ferred 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 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 en suggestion of a defect or failure of title, and on the 
 principle of quja 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 pur- 
 chase money may be detained or abated if adverse claims or ih- 
 cumbrances should be asserted against the property, the rule re- 
 stricting the purchaser to his covenants in case the title fails does 
 not apply. The purchaser is at liberty to protect himself by special 
 covenants or agreements ; 8 and these it is apprehended will prevail 
 
 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. 
 
 *Platt v. Gilchrist, 3 Sandf. (N. 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 they have not thought proper to do, and this court can with no more 
 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 cove- 
 nanted to be paid, upon the destruction of the buildings, where the parties 
 have not themselves provided against it." In Walter v. Johnson, 2 Nev. 354, 
 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 the words " adverse claim " meant a valid and 
 paramount title, and that the grantee was not entitled to credit for a sum 
 paid to a claimant without color of title. In Chaplin v. Briscoe, 11 Sm. & 
 M. (Miss.) 372, where the deed contained a similar stipulation, it was held 
 that the covenantee might avail himself to the defense of failure of the title, 
 though he had conveyed away his interest in the premises to a stranger, 
 
 29
 
 450 MARKETABLE TITLE TO REAL ESTATE. 
 
 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 cannot 
 detain the purchase money unless he has been evicted, exists where 
 the deed conveys an unknown, uncertain and undetermined in- 
 terest 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 the 
 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 from 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 adjudicata 
 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 the warranty t j his grantor. 1 * 
 
 The rule that a grantee with covenants of warranty cannot resist 
 the payment of the purchase money until actual or threatened 
 
 Lewis v. West, 23 Mo. App. 495, the court saying that " to such a case 
 would seem to apply the principle on which is based the rule that the cove- 
 nants of seisin (warranty also) are broken as soon as made when the land 
 conveyed is in the possession of a stranger at the date of the deed under a 
 paramount title, and substantial damages are recoverable by the grantee." 
 
 "Bottorf v. Smith, 7 Ind. 673. 
 
 "Leonard v. Austin, 2 How. L. (Miss.) 888. 
 
 "Tallmadge v. Wallis, 25 Wend. (N. Y.) 116. Tillotaon v. Grapes, 4 N. EL 
 444, 449. 
 
 '"'White v. Furtzwangler, 81 Ga. 66; 6 S. E. Rep. 692.
 
 DETENTION OF PURCHASE MONEY BEEACH OF COVENANT. 451 
 
 eviction, does not apply where the grantor pointed out, at the time 
 of the sale, incorrect boundaries, enclosing more land than was 
 actually conveyed." 
 
 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 title 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. 15 There are exceptions 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 incumbrances 
 on the premises are not merged in the conveyance afterwards ac- 
 cepted. Nor are such promises within the Statute of Frauds or 
 obnoxious to the rule that evidence of a contemporaneous verbal 
 agreement will not be received to alter the terms of a written con- 
 tract. 18 Collateral stipulations of which the conveyance is not neces- 
 
 "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. 
 
 "Rawle Covts. (5th ed.) 320. Miller v. Avery, 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. A verbal agreement between the parties at the time of 
 the execution of a deed with warranty and a purchase-money note and mort- 
 gage payable in ninety days, that if within the ninety days the title be found 
 bad it may be rejected, has 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 coneveyd the premises with general warranty, and also 
 executed a title bond conditioned 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 was merged in the conveyance was not raised. The court 
 held that the purchaser could not recover on the warranty without howinj; 
 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 N. 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
 
 452 MARKETABLE TITLE TO REAL ESTATE. 
 
 sarily a performance, are not conclusively presumed to have been 
 merged in the conveyance. Thus, an agreement by the purchaser 
 to pay off an existing mortgage on the premises has been held not 
 to have been merged in a subsequent conveyance of the premises 
 with covenants of warranty. 17 Also, that the original provisions of 
 the contract respecting the title, are not merged in the conveyance, 
 unless the same be accepted in complete execution of the agree- 
 ment. 18 A covenant to put the vendee in possession is not merged 
 in a subsequent conveyance with warranty. 19 And a contract which 
 expressly provides that its restrictions and stipulations shall be 
 complied with and carried out as if embodied in the deed, will not 
 be held to have been merged therein. 20 
 
 to recover the amount of the assessment from the vendor, the latter set up 
 the defense that his agreement to pay the assessmnt was merged in the 
 conveyance and that plaintiff could not recover. The defense was adjudg-ed 
 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 is fulfilled by a de- 
 livery and acceptance of the deed, that conditions may not be made which 
 are obligatory upon the parties. The deed being ready for delivery, and the 
 plaintiff ready to pay the money, they had a perfect right to exact, as a 
 condition of fulfilling the contract, that the defendant should pay the assess- 
 ment when it became due. This is not contradicting a written agreement by 
 parol, but evidence of the terms upon which the money was paid and the 
 conveyance delivered. As the agreement was made after the deed was exe- 
 cuted and before delivery there could be no merger of this agreement in the 
 deed." Citing Murdock v. Gilchrist, 52 N. Y. 242. 
 
 " Reed v. Sycks, 27 Ohio St. 285. Disbrow v. Harris, 122 N. Y. 365 ; 25 N. 
 E. Rep. 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; Bennett v. Abrams, 41 Barb. (N. Y.) 619; Murdock v. Gil- 
 christ, 52 N. Y. 242. Dillingham v. Estill, 3 Dana (Ky.), 21. 
 
 13 Cavanaugh v. Casselman, 88 Cal. 543; 26 Pac. Rep. 515, where the con- 
 veyance embraced only a part of the purchased premises. 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. 
 
 "German Am. Real Est. Co. v. Starke, 84 Hun (N. Y.), 430; 32 N. Y. 
 Supp. 403. Williams v. Frybarger, 9 Ind. App. 558. 
 
 "Newbold v. Peabody Heights Co., 70 Md. 499; 17 Atl. Rep. 372.
 
 DETENTION OF PUBCHASE MONEY BREACH OF COVENANT. 453 
 
 It has been held that an executory contract for the exchange of 
 lands is not merged in the deeds of conveyance executed in pursu- 
 ance 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. 21 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 prem- 
 ises with warranty, the grantee accepting the conveyance in igno- 
 rance of the fraud. 22 
 
 18 2. EFFECT OF PTTRCHASE WITH KNOWLEDGE OF DEFECT 
 OB INCUMBRANCE. If a man purchase land knowing that the 
 title is bad or the land is incurnbered, 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 cove- 
 nants. 23 But whether in such a case upon a breach of those cove- 
 nants 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 he must pay the 
 purchase money and look to his covenants for relief, 24 except in 
 
 "Bennett v. Abrams, 41 Barb. (N. Y.) 619, 625. 
 
 "Post, 270, 276. 
 
 * 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 incum- 
 brance and its probable consequences, the defendant consents to receive the 
 title which the plaintiff was able to make, and in receiving it executes his 
 note for the purchase money. To the payment of a note given under such 
 circumstances the existence of the incumbrance can certainly furnish no legal 
 objection." Per MARSHALL, Ch. J. In Ryerson v. Willis, 8 Daly (N. Y.), 
 462, a grantee with warranty gave a mortgage on the premises for a balance 
 of the purchase money, under an agreement that it should not be collected 
 until the grantor should procure and deliver to him a quit claim of a certain 
 interest in the premises. The quit claim not having been delivered the 
 grantee brought a suit to cancel the mortgage, but the court held that he was 
 not entitled to that relief, and that his remedy was upon the covenants in 
 the deed. This decision was rested largely upon the ground that the grantee 
 had purchased with notice of the defective title.
 
 454 MARKETABLE TITLE TO HEAL ESTATE. 
 
 those cases in which the vendor, after the deed had been executed, 
 but before it had been delivered and accepted expressly agreed to 
 remove the incumbrances. Such a promise, it will be remembered, 
 has been held not to be merged in the subsequent conveyance. 18 
 There are case which affirm the right of the purchaser to detain 
 the purchase money, notwithstanding his acceptance of a con- 
 veyance with notice of the incumbrance, 26 and it 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. 27 
 
 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 seems to 
 be that the law of notice from the public registers has no applica- 
 tion as between vendor and purchaser. 28 
 
 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 
 wherever the defendant received absolutely no benefit under the 
 contract ; but if he recived 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. 29 If the contract was 
 for the sale or lease of lands, there could be no total failure of the 
 
 "Remington v. Palmer, 62 N.-Y. 31. Ante, 181. 
 
 * Jaques v. Esler, 4 N. J. Eq. 461, citing Tourville v. Nash, 3 P. Wms. 306. 
 Johnson v. Gere, 2 Johns. Ch. (N. Y.) 546. Shannon v. Marselis, Saxt. (N. 
 J.) 425; Van Waggoner v. McEwen, 1 Gr. (2 N. J. Eq.) 412. These authori- 
 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. 
 
 27 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. 
 
 M 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.
 
 DETENTION OF PURCHASE MONEY BKEACH OF COVENANT. 455 
 
 consideration if the purchaser was put in possession 30 and enjoyed 
 the estate without liability to a stranger for the rents and profits, 31 
 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, 32 the defendant 
 
 80 Moggridge v. Jones, 3 Camp. 38. 
 
 M Jenness v. Parker, 24 Me. 295. 
 
 "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 
 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 
 be 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 entitle him to such relief in equiyt." The 
 object of this statute was to abelish 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 purchase 
 money. Dunn v. White, 1 Ala. 645. The removal of an outstanding incum- 
 brance by a purchaser of land having a covenant against incumbrances was 
 held to be within the rule. Cole v. Justice, 8 Ala. 793. A subsequent statute 
 authorized the set off of not only mutual debts, but liquidated or unliquidated 
 demands not sounding in damages merely. Rev. Code Ala. 2642. It was 
 held that the amount paid by a purchaser to extinguish an outstanding 
 vendor's lien was within this statute, and should be allowed as a set-off. 
 Ilolley 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 /la. 389. So, also, a cross-demand growing out of a 
 defect in the vendor's title is available as a set-off in an action on the notes 
 for the purchase money, although the purchaser is in possession. Martin v. 
 Wlmrton, 38 Ala. 637. In Eads 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 and against a plaintiff, be- 
 tween whom several judgments might be had in the action," a sub-purchaser, 
 against whom no personal judgment is asked, cannot defend, by way of coun- 
 terclaim, an action to foreclose a purchase-money mortgage on the 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 plain- 
 tiff'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.
 
 456 MARKETABLE TITLE TO REAL ESTATE. 
 
 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 defendant, in an action for the contract price 
 of lands, if he has been evicted from the premises and has a pres- 
 ent right to recover damages on the covenants of his grantor, is 
 allowed to set up those facts in recoupment of the plaintiff's de- 
 mand, even though he may have had possession of the premises, and 
 consequently may have received some benefit from the contract. 33 
 " 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." 34 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. 35 Thus, in an action for work done, the defendant 
 might deduct from the damages the value of material supplied by 
 him f 6 and, in an action to recover money for dyeing goods, the de- 
 fendant was permitted to show a custom which allowed him to de- 
 
 33 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 and 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 founded 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 against demands disconnected with the 
 contract. 
 
 ** Black Law Diet. nom. Recoupment. 
 
 "Chitty Cont. (10th Am. ed.) 946, 948. 
 
 "Newton v. Foster, 12 M. & W. 772.
 
 DETENTION OF PUECHASE MONEY BREACH OF COVENANT. 457 
 
 duct from the price of the work the amount of damage done to the 
 goods while being dyed. 37 The extension of this principle, so as to 
 allow the defendant in an action on a contract to set up as a de- 
 fense unliquidated damages resulting from the plaintiff's non-per- 
 formance of the contract, has produced the modern doctrine of re- 
 coupment. 38 That defense is permitted for the purpose of avoiding 
 circuitj of action ; and, after all, the true test of its availability is 
 not so much whether there has or has not been a mere partial fail- 
 ure 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. 39 
 
 184. BECOTTPMENT TN FOBECLOSTJBE 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. 40 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 
 
 87 Bamford v. Harris, 1 Stark. 343. 
 
 * In Waterman on Set-Off (2d ed. ), p. 575, it is said: "As a general rule, 
 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 rule. 
 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 staged by him is somewhat unsatisfactory. He says : " The reason is that 
 the bond and mortgage for the payment of the purchase money, and the cove- 
 nant of warranty from the grantor, are separate and independent covenants 
 and the breach of one cannot be urged as a defense to an action upon the 
 other." Citing Timms v. Shannon, 19 Md. 296; 81 Am. Dec. 632; Grant v. 
 Tallmans, 20 N. Y. 191. Such a reason would apply as well where there was 
 an actual eviction as where the possession of the grantee has not been dis- 
 turbed, and would be subversive of the rule which, to prevent a circuity 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.), 39; Stacy v. Kemp, 97 
 Mass. 166; Carey v. Guillow, 105 Mass. 18; 7 Am. Rep. 494. 
 
 40 2 Jones Mort. (3d ed.) 1496, et seq.
 
 458 MARKETABLE TITLE TO REAL ESTATE. 
 
 a general rule, be rejected, for the reason that such a proceeeding 
 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. 41 The defense of set-off or 
 counterclaim obviously stands on different grounds. 42 But if the 
 
 41 Jones v. Fulghum, 3 Tenn. Ch. 19*3 ; Cohen v. Woolard, 2 Tenn. Ch. 686 ; 
 Hurley v. Coleman, 3 Head (Tenn.), 265, which was a suit to enforce a ven- 
 dor's lien; Curd v. Davis, 1 Heisk. (Tenn.) 574. Williams v. Sax (Tenn.), 
 43 S. W. Rep. 868. See, also, post, 333. Howie 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. Oilman, 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. In the following New York cases, the court refused to stay the en- 
 forcement of purchase-money mortgages upon the mere ground that the title 
 was defective; Platt v. Gilchrist, 3 Sandf. Ch. (N. Y.) 118; Griffith v. Kemp- 
 shall, 1 Clarke Ch. (N. Y.) 571; Hoag v. Rathbun, 1 Clarke Ch. (N. Y.) 12; 
 Farnham v. Hotchkiss, 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 ob- 
 served that S. (the vendor) does not seek to collect the purchase money in 
 this case; he simply asks 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 if 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 purchase money by showing a clear outstanding title in a 
 stranger and an imminent 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 the 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 presented. So, also, if the objection to the foreclosure is 
 that there are incumbrances 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.
 
 DETENTION OF PUECHASE MONEY BREACH OF COVENANT. 459 
 
 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 damage? against the plaintiff, he may 
 avail himself of that defense by way of recoupment, 43 even though, 
 it would seem, no personal judgment is sought against him." 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. 45 If 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 an injunction 
 until the residue of the lien is removed by the covenantor. 46 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. 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 defense, though there might be a personal decree 
 against him for a deficiency. Edwards v. Bodine, 26 Wend. (N. Y.) 109; Leg- 
 gett v. McCarty, 3 Edw. (N. Y.) 124. 
 
 44 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 
 tb,at, 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. 
 
 "Post, 332, 335. Buell v. Tate, 7 Bl. (Ind.) 55. Smith v. Fiting, 37 
 Mich. 148, semble. Hughes v. McNider, 90 N. C. 248. McCrath v. Myers, 
 126 Mich. 204; 85 N. W. Rep. 712. 
 
 "Jones Mort. 1504. Whisler v. Hicks, 5 Bl. (Ind.) 100; 33 Am. Dec. 
 454; Smith v. Ackerman, 5 Bl. (Ind.) 541; Oldfield v. Stevenson, 1 Ind. 153; 
 Smal 1 v. Reeves, 14 Ind. 164. Potwin v. Blasher, 9 Wash. 460; 37 Pac. Rep. 
 710.
 
 460 MARKETABLE TITLE TO BEAT. ESTATE. 
 
 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.* 7 
 
 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 claim- 
 ant. 4 * 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 foreclose the mortgage.** 
 If 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 in- 
 advertently conveyed to him. 50 
 
 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, 
 and that a doubtful title may not be forced upon a purchaser at the 
 sale, 51 
 
 "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. 
 
 "Banks v. Walker, 2 Sandf. Ch, (X. Y.) 344; Davison v. De Freest, 3 
 Sandf. Ch. (N. 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. The same rule 
 applies in a suit to enforce a vendor's lien. Young v. Figg, (Neb.) 100 N. 
 W. Rep. 311. 
 
 Rockwell v. Wells, (Mich.) 62 N. W. Rep. 165. Dayton v. Melick, 32 N. 
 J. Eq. 570. De Kay v. Bliss, (X. Y.) 34 N. E. Rep. 300. Jones Mortg. (4th 
 ed.) 1490. 
 
 Elder v. First Nat. Bank, 91 Tex. 423 ; 44 S. W. Rep. 62. 
 
 "Post, $ 337. Peers v. Barnett, 12 Grat. (Ya.) 415, where it was said by 
 the court : " A distinction seems to have been taken by some of the reported
 
 DETENTION OF PURCHASE MONEY BREACH OF COVENANT. 461 
 
 185. PAETIAL 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, 52 though, it seems according to common law, not an entire 
 failure, possession once had under the contract being a partial en- 
 joyment 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 
 
 cases as to the relief a court of equity will extend to a vendee who has ac- 
 cepted 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 attempt- 
 ing 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 conceal- 
 ment or misrepresentation, and which the vendee had at the time no means 
 of discovering. In Ralston v. Miller, 3 Rand. (Va.) 44; 15 Am. Dec. 704; 
 Roger v. Kane, 5 Leigh (Va.), 606; Clarke v. 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. Tidball, Gilm. 
 (Va.) 130; Gay v. Hancock, 1 Rand. (Va.) 72; Miller v. Argyle, 5 Leigh 
 (Va.), 460." 
 
 "Rawle Covt. (5th ed.) 327. Cook v. Mix, 11 Conn. 432. Knapp v. Lee, 
 3 Pick. (Mass.) 459; Rice v. Goddard, 14 Pick. (Mass.) 293; Trask v. Vin- 
 son, 20 Pick. (Mass.) 110. Tilotson v. Grapes, 4 N. H. 448. Deal v. Dodge, 
 26 111. 458; Tyler v. Young, 2 Scam. (111.) 445; 35 Am. Dec. 116; Thomp- 
 son 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. 
 (Miss.) 211, but these cases are overruled by or are inconsistent with the 
 later cases cited above.
 
 462 MABKETABLE TITLE TO REAL ESTATE. 
 
 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. 68 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. 64 Hence, it follows that there may be only a 
 partial failure of the consideration in a case in which the title has 
 entirely failed. 55 Partial failure of title is sometimes spoken of in 
 the cases ; apparently in the sense of partial failure of the consider- 
 ation; 5 * 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 the/e has been a complete and palpable 
 failure of the title. 67 
 
 " 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. 
 
 M 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. 395. Greenleaf v. Cook, 2 Wh. 
 (U. S.) 13. 
 
 M As in Bowley v. Holway, 124 Mass. 396. 
 
 "2 Kent. Com. (12th ed/) 473; 3 Sedg. Dam. (8th ed.) 1083; Waterman 
 Set-Off (2d ed.), 560; Eawle Covts. (5th ed.) 330, et seq. Moggridge v. 
 Jones, 3 Camp. 38; 14 East, 486. Greenleaf v. Cook, 2 Wh. (U. S.) 13; 
 Ecudder v. Andrews, 2 McL. (U. S.) 464, and analogous cases there cited. 
 Freeligh v. Platt, 5 Cow. (N. Y.) 494; Whitney v. Lewis, 21 Wend. (N. Y.) 
 131; Tallmadge v. Wallis, 25 Wend. (N. Y.) 113; Lamerson v. Marvin, 8 
 Barb. (N. Y.) 11; Farnham v. Hotchkiss,.2 Keyes (N. Y.), 9; Tibbetts v. 
 Ayer, Lai. Supp. (N. Y.) 176; Parkinson v. Sherman, 74 N. Y. 88; 30 Am. 
 Rep. 268; Ryerson v. Willis, 81 N. Y. 277. Bowley v. Holway, 124 Mass.
 
 DETENTION OF PURCHASE MONEY BREACH OF COVENANT. 463 
 
 In other case, 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, 58 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. 69 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 of 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. Where there has 
 been a partial failure of the consideration, in the sense of a loss of 
 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. 80 
 
 395. Glenn v. Thistle, 23 Miss. 42. Leal v. Terbush, 52 Mich. 100; 17 N. W. 
 Rep. 713; Hunt v. Middleworth, 44 Mich. 448. Peden v. Moore, 1 Stew. & 
 P. (Ala.) 71; 21 Am. Dec. 649. 
 
 In Reese v. Gordon, 19 Cal. 149, it was 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 mean 
 a case in which the purchaser has been evicted from part of the premises; 
 otherwise the two propositions contained in the remarks of the court would 
 be, as respects the covenant of warranty, contradictory and inc insistent; 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. 
 
 " Frisbie v. Hoff nagle, 1 1 Johns. ( N. Y. ) 50. James v. Lawrenceburg Ins. 
 Co., 6 Bl. (Ind.) 525. Cook v. Mix, 11 Conn. 438; Moon v. Ellsworth, 3 
 Conn. 483. Dahle v. Stakke, 12 N. Dak. 325; 96 N. W. Rep. 353. Black 
 Hills Nat. Bank v. Kellogg, 45 Dak. 312; 56 N. W. Rep. 1071. 
 
 Frisbie v. Hoff nagle, 11 Johns. (N. Y.) 50. Cook v. Mix. 11 Conn. 438. 
 
 *McHenry v. Yokum, 27 111. 160. Dahle v. Stakke, 12 N. Dak. 325; 96 
 N. W. Rep. 353.
 
 464 MARKETABLE TITLE TO EEAL ESTATE. 
 
 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. 61 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 io 
 an action for the purchase money. 62 
 
 In some cases it has been held that damages resulting from a par- 
 tial failure of the consideration cannot be recouped in an action for 
 the purchase money, upon the ground that the doctrine of recoup- 
 ment or set-off is of equitable origin and cognizable only in a court 
 of equity. 63 These decisions do not appear to have been followed 
 in the other States. 
 
 186. ASSUMPSIT TO TRY 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 undertake 
 in such an action to try the title ; in other words, that title to land 
 cannot be tried in an action of assumpsit. 64 This is undoubtedly 
 true where the plaintiff asserts a title paramount to that of the 
 defendant, e. g., where he seeks to recover the rents and profits of 
 the land enjoyed by the defendant. 65 But this doctrine, in its 
 application to the defense of failure of title in an action to recover 
 the purchase money of lands, has been critised, 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. 66 It is familiar law 
 
 "Lewis v. McMillen, 41 Barb. (N. Y.) 420; McCullough v. Cox, 6 Barb. 
 (N. Y.) 386; Tibbetts v. Ayer, Lai. Supp. (N. Y.) 176. 
 
 "Tallmadge v. Wallis, 25 Wend. (N. Y.) 116. 
 
 "Wheat v. Dotson, 12 Ark. 699; McDaniel v. Grace, 15 Ark. 487; Key v. 
 Hanson, 17 Ark. 254. 
 
 "Leal v. Terbush, 52 Mich. 100; 17 N. W. Rep. 713. Dennis v. Heath, 11 
 Sm. & M. (Miss.) 206; 49 Am. Dec. 51. 
 
 "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- 
 man v. Jenkins, 14 Mass. 93; Boston v. Binney, 11 Pick. (Mass.) 1. 
 
 'Rawle Covts. for Title (5th ed.), 334, n., where the author says: "It 
 may be observed that the objection to trying the title to land in an action for 
 its contract price must equally apply in every case where the paramount title
 
 DETENTION OF PURCHASE MONEY BREACH OF COVENANT. 465 
 
 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 objection in question would apply 
 as well where the contract is executory as where it has been exe- 
 cuted by a conveyance with covenants for title, and if it were in- 
 superable, 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 CONSTITTJTES EVICTION PTJBCHASB OF OUT- 
 STANDING TITUS. The failure of title to real estate may be pal- 
 pable and complete, as where the vendor, undertaking to convey a 
 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 
 
 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 seem 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 N. W. Rep. 997, it was said by LONG, J. : "The general rule is 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 assumpsit ; 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 estab- 
 lished in an action for breach of covenant." 
 
 30
 
 466 MABKETABLE TITLE TO BEAL ESTATE. 
 
 those covenants has been already considered, 67 and it only remains 
 for the sake of convenience, to consider here briefly the application, 
 of the principles there disucssed to the defense of failure of title 
 in actions to recover the purchase money. Among the most im- 
 portant of those 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. 68 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- 
 ments conclusive upon him, the covenantee will have the burden of 
 establishing the superiority of the title acquired by him from the 
 adverse claimant. 69 If there has been no eviction or disturbance 
 of the covenantee in his possession of the estate, and it does not ap- 
 pear that the adverse claimant could in all probability have re- 
 covered the land, the covenantee will not be reimbursed for the 
 amount paid by him to get in the alleged outstanding title. 70 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. 71 Nor can he escape the applica- 
 tion of this rule by procuring a third person to get in the out- 
 standing title. 72 The covenantee may also surrender the possession 
 
 "Ante, 142. Dower recovered against the covenantee constitutes a good 
 defense to an action for the purchase money. McHenry v. Yokum, 27 111. 
 160. 
 
 "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. Benson 
 v. Love, 58 Tex. 468. 
 
 "Ante, 151. 
 
 79 Ante, 151. Blair v. Perry, 7 J. J. Marsh. (Ky.) 152. 
 
 "1 Sugd. Vend. (8th ed.) 533 (355). Post, 202. 
 
 "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, but cannot set 
 up the title BO acquired to defeat the recovery of the balance of the purchase 
 money.
 
 DETENTION OF PURCHASE MONEY BKEACH OF COVENANT. 467 
 
 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. 78 
 
 The laws of the United States forbid the sale and transfer of 
 mere pre-emption rights to 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 purchase 
 money though he has not been actually evicted from the premises. 74 
 
 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. 75 In New York taxes assessed to the vendor 
 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 deter- 
 mining 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, 76 or detain the 
 purchase money to that extent. 
 
 n Ante, 148. Garvin v. Cohen, 13 Rich. L. S. (S. S.) 153. Drew v. Towle, 
 30 N. H. 531; 27 N. H. 412. 
 
 M Glenn v. Thistle, 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. Fisher v. Salmon, 1 Cal. 413 ; 54 Am. Dec. 297. Slack v. McLagan, 
 15 111. 242. Dodd v. Toner, 3 Ind. 427. Bradt v. Foster, 5 Clark (Io.), 298. 
 Hobein v. Drewell, 20 Mo. 450. Tibbetts v. Ayer, Hill & Den. Supp. (N. Y.) 
 174; Blair v. Claxton, 4 N. Y. 529, but few, if any of them, will be found 
 directly in point. 
 
 "Ante, 145. Rawle Covts. for Title (5th ed.), 132. 
 
 "Rundell v. Lakey, 40 N. Y. 517. See ante, 150.
 
 468 MARKETABLE TITLE TO REAL ESTATE. 
 
 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. 77 
 
 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. 78 But if the 
 boundaries contain the full number of acres called for, and there be 
 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 de- 
 ficiency." 
 
 "Jaques r. Esler, 3 Gr. Ch. (N. J.) 465. See, post, ch. 28. 
 
 "2 Warvelle Vend. 839; Rawle Covts. (5th ed.) 298. Ante, 135. 
 Young y. Lofton, (Ky.) 12 S. W. Rep. 1061. Carter v. Beck, 40 Ala. 599. 
 Compare Beach v. Waddell, 4 Halst. Ch. (N. J.) 308. In Roger 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 quantity or that a portion 
 bf 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 th< 
 property conveyed was so serious that it might be regarded as evidence ol 
 imposition or fraud, the rule was 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. 
 
 "Leonard v. Austin, 2 How. (Miss.) 888.
 
 DETENTION OF PURCHASE MONEY BREACH OF COVENANT. 469 
 
 188. DISCHARGE OF INCUMBRANCES. 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 action for the purchase money. 80 If the deed con- 
 
 "Nesbit 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. 
 395, 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 consid- 
 eration. The two cases would seem distinguishable in this, that the defense 
 in the first case was more in the nature of set-off than recoupment, for 
 the sum paid to remove the incumbrance could scarcely be termed un- 
 liquidated damages. 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 incumbrance 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 
 is a complete failure of the consideration. See 3 Sedg. Dam. (8th ed.) 267, 
 268. Owens v. Salter, 38 Pa. St. 211. Kelly v. Low, 18 Me. 244. Brooks v. 
 Moody, 20 Pick. (Mass.) 475. Baker v. Railsback, 4 Ind. 533; Small v. 
 Rieves, 14 Ind. 163; Holman v. Creagmiles, 14 Ind. 177. Bowen v. Thrall, 
 28 Vt. 382. Delavergne v. Norris, 7 Johns. (N. Y.) 357; 5 Am. Dec. 281. 
 Schumann v. Knoebel, 27 111. 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 incumbrance. To the extent 
 then of this incumbrance there was a failure of consideration. Morgan v. 
 Smith, 11 111. 199. Whisler v. Hicks, 5 Bl. (Ind.) 100; 33 Am. Dec. 454; 
 Smith v. Acker, 5 Bl. (Ind.) 541; Buell v. Tate, 7 Bl. (Ind.) 54; Pomeroy 
 v. Burnett, 8 Bl. (Ind.) 142. We think, too, the defendant, under the plead- 
 ings, might have recouped the amount thus paid. Babcock v. Tria, 18 111. 
 420. There is a natural equity as to claims arising out of the same trans- 
 action, that one claim should compensate tjje other, and that the balance 
 only should be recovered. The damages claimed by the defendant grew out 
 of the contract for the sale of the land, and present a plain case for recouping 
 damages. * * * The defendant 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 mortgage, and assuming to pay the mortgage, is estopped 
 to contest the consideration and validity of the mortgage. Parkinson v. 
 Sherman, 74 N. Y. 92; 30 Am. Dec. 268; Ritter v. Phillips, 53 N. 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.
 
 470 MARKETABLE TITLE TO SEAL ESTATE. 
 
 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. 81 
 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. 8 * 
 And as the recoupment of the breach, when sued for the purchase 
 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 incumbrancer. 83 Hence, it has 
 been held that the mere existence of a right of dowor in the prem- 
 ises, 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. 84 An apparent exception to the rule above exists in 
 
 "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, could not, in an action for the purchase 
 money, show under the general issue a breach of the covenant against in- 
 brances; but that he might set-off the amount paid by him to remove the 
 incumbrance in order to prevent an eviction. 
 
 "Jones Mortg. 500; a perspicuous statement of the rule as follows: 
 " Where the grantee in a warranty deed, conveying premises OB 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 Xeb. 190. Pomeroy v. Burnett, 8 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 
 HI. App. 490. 
 
 "Thurgood v. Spring, 139 Cal. 596; 73 Pac. 456. Bryan v. Swain, 56 
 Cal. 618. 
 
 "Whisler v. Hicks, 5 Blackf. (Ind.) 100; 33 Am. Dec. 454; Smith v. Ack- 
 erman, 5 Blackf. (Ind.) 541.
 
 DETENTION OF PUBCHASE MONEY BREACH OF COVENANT. 471 
 
 those cases in which the incumbrance exceeds the purchase money, 
 and the grantee is allowed a temporary injunction until the vendor 
 pays the excess. 85 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. 86 If a cove- 
 nantee pays off an incumbrance on the land he can have credit only 
 for the actual amount disbursed for that purpose. He cannot buy 
 up the lien at a discount and have the benefit of its face value 
 against the grantor. 87 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. 88 
 
 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. 89 If the purchase money be secured 
 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. 90 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- 
 
 "Post, 332, 335. 
 
 M Bowen v. Thrall, 28 Vt. 382, citing Tourville v. Naish, 3 P. Wms. 307. 
 Warren v. Stoddart (Idaho), 59 Pac. Rep. 540. 
 "McDowell v. Milroy, 69 111. 498. Ante, 130. 
 "Herryford v. Turner, 67 Mo. 296. 
 "Norton v. Jackson, 5 Cal. 262. 
 "Post, 332.
 
 472 MABKETABLE TITLE TO REAL ESTATE. 
 
 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. 91 
 
 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, 92 and that he accepted the convey- 
 
 n William Farrel etc., Co. v. Deshon, 65 Ark. 103; 44 S. W. Rep. 1036. 
 
 m 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. Grady, 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. 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 us*d 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 contract is this: That in the former he should be relieved by show- 
 ing 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 such 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 gone 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, as 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
 
 DETENTION OF PURCHASE MONEY BREACH OF COVENANT. 473 
 
 ance in ignorance of the defective title. 93 He will be charged with 
 notice of defects which lay in the vendor's chain of title unless his 
 attention was diverted from them by the artifices of the vendor. 94 
 
 up such sale as a defense to an action against him for the' purchase money, 
 citing Mills 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. 
 
 w 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. Upon this point the leading case is Brock v. 
 Southwick, 10 Tex. 65. It is there said : " The proof shows a contract of 
 purchase and a conveyance 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 convey- 
 ance without objection, relying, doubtless, upon his chances to perfect the 
 title, or upon the security afforded by the covenants in his deed of convey- 
 ance. 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 pur- 
 chaser's pleadings must aver such want of notice. Carson v. Kelly, 57 Tex. 
 379. So in the recent case of Neyland 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- 
 veyance as 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 
 curcumstances recited in the plea indicate that he was aa 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 thai 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." 
 
 M 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.
 
 474 MARKETABLE TITLE TO HEAL ESTATE. 
 
 A purchaser availing himself of this defense must surrender pos- 
 session to the grantor and give up the deed to be cancelled, 96 and an 
 answer setting up such a defense and containing no offer to recon- 
 vey is insufficient. 96 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 statu 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. 97 He" may also buy up the rights of an adverse claimant to 
 prevent inevitable eviction, 98 but this, however, is held to be equiva- 
 lent to an actual eviction. 99 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. 1 
 
 If the purchaser take a conveyance without covenants for title 
 or with special warranty only, 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. 2 
 
 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. 3 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. 4 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 
 
 "Demaret v. Bennett, 29 Tex. 263; Haralson v. Langford, 66 Tex. Ill; 18 
 S. W. Rep. 339; Ogburn v. Whitlow, 80 Tex. 239; 15 S. W. Rep. 807, citing 
 Smith v. Nolan, 21 Tex. 497. 
 
 96 Ogburn v. Whitlow, 80 Tex. 239; 15 S. W. Rep. 807. 
 
 97 Fisher v. Dow, 72 Tex. 432; 10 S. W. Rep. 455. 
 "Clark v. Mumford, 62 Tex. 531. 
 
 "Rawle Covts. (5th ed.) 146. 
 
 '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. 
 
 a Rhode v. Alley, 27 Tex. 445. 
 
 Fisher v. Abney, 69 Tex. 416; 9 S. W. Rep. 321. 
 
 4 Haralson v. Langford, 66 Tex. Ill; 18 S. W. Rep. 339.
 
 DETENTION OF PURCHASE MONEY BREACH OF COVENANT. 475 
 
 conveyance with warranty was accepted without notice of the 
 incumbrance. 5 
 
 190. BTTLE IN SOUTH CAROLINA. In South Carolina a 
 purchaser who has taken a conveyance with general warranty, 
 which in that State embraces the five common law covenants, 8 may, 
 for any defect of title embraced by those covenants, 7 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. 8 But he can- 
 
 Tarlton v. Daily, 55 Tex. 92. 
 
 Evans v. McLucas, 12 S. C. 56; Lessly v. Bowie, 24 S. C. 197; 3 S. E. 
 Rep. 199. 
 
 T Rogers v. Horn, 6 Rich. Eq. (S. C.) 362; Evans v. Denby, 2 Spears 
 (S. C.), 10; 13 Am. Dec. 356. 
 
 Thompson v. McCord, 2 Bay (S. C.), 76; Taylor v. Fulmore, 1 Rich. 
 Eq. (S. C.) 52; Sumter v. Welsh, 1 Brev. (S. C.) 539; Johns v. Nixon, 2 
 Brev. (S. C.) 472; Van Lew v. Parr, 2 Rich. Eq. (S. C.) 340, and Rawle 
 Covts. 569, n., where it is said: "Since Furman v. Elmore (A. D. 1819, 
 reported in a note to Mackey v. Collins, 2 Nott & McC. 189), it has been 
 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 and interest, and it followed that where a portion of the land was 
 so covered by paramount title damages could be assessed pro tcmto, 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 is 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.
 
 476 MARKETABLE TITLE TO REAL ESTATE. 
 
 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 premises, in the absence of fraud or insolvency on the part of 
 
 (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 interefere 
 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 
 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, Childs 
 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 forclose a pur- 
 chase-money mortgage. In Munro v. Long, supra, it was said : " It will 
 be observed that this is not a case for the enforcement of an executory con- 
 tract 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.), 326, and the rule established that the 
 purchaser was entitled to an abatement of the purchase money to the extent 
 of the outstanding title, but not to a rescission of the contract. See, also, 
 Van Lew v. Parr, 2 Rich. Eq. (S. C.) 337; Westbrook v. McMillan, 1 Bailey 
 (S. C.), 259; Bordeaux v. Carr, 1 Bailey (S. C.), 250; Carter v. Carter, 1 
 Bailey (S. C.), 217. In Poyas v. Wilkins, 12 Rich. (S. C.) 420, it appeared 
 that part of the premises purchased was, at the time of purchase, in poa-
 
 DETENTION OF PUECHASE MONEY BREACH OF COVENANT. 477 
 
 the vendor. 9 Judgment liens binding the warranted premises con- 
 stitute no ground for detaining the purchase money, unless the 
 purchaser removed them. 10 
 
 The law courts in this State adopt the civil law rule of implied 
 warranty in the sale and conveyance of lands. Where, however, 
 the sale is by a sheriff, the common-law maxim caveat emptor 
 applies, and the purchaser must pay the purchase money, though 
 the title completely fails. The same exception will extend, it is 
 apprehended, to all sales made in a representative or ministerial 
 capacity. 11 
 
 191. PLEADINGS. The defendant in an action for the pur- 
 chase money of lands, settting up a breach of the covenants in his 
 deed as a defense, must file with his pleadings the original or a 
 copy of that deed, 12 or set out the same, or the essential parts 
 thereof, in the pleadings. 13 When the purchaser seeks to detain 
 the purchase money, he must not only allege a failure of the title, 
 but he must show a breach of covenant or fraud on the part of the 
 vendor. A mere averment that the title has failed is insufficient" 
 If the purchaser intends to rely on a breach of the covenants for 
 title as a defense to an action for the purchase money, his pleadings 
 must aver the existence of the covenants. Thus, in an action to 
 
 session of a third person claiming under a prior conveyance, which convey- 
 ance did not in fact include the premises in dispute, and that such third 
 person had acquired title thereto by adverse possession, without fault on 
 the part of the vendor. It was held that these facts constituted no defense 
 to an action for the purchase money. 
 
 Whitworth v. Stuckey, 1 Rich. Eq. (S. C.), 408, the leading case, citing 
 and approving Bumpus v. Platner, 1 Johns. Ch. (N. Y.) 213. Van Lew v. 
 Parr, 2 Rich. Eq. (S. C.) 337; Maner v. Washington, 3 Strobh. Eq. (S. C.) 
 171; Kebler v. Cureton, Rich. Eq. Cas. (S. C.) 143; Gillam v. Briggs, Rich. 
 Eq. CM. (S. C.) 143; Evans v. McLucas, 12 S. C. 56; Lessly v. Bowie, 27 S. C. 
 193 (1887); 3 S. E. Rep. 199; Childs v. Alexander, 22 S. C. 169 (1884); 
 Bethune v. McDonald, 35 S. C. 88 (1891); 14 S. E. Rep. 674; Munro T. 
 Long, 35 S. C. 354 (1891) ; 15 S. E. Rep. 553; Means v. Bricknell, 2 Hill 
 (S. C.), 143; Abercrombie v. Owings, 2 Rich. L. 127. 
 
 'Gourdine v. Fludd, Harp. L. (S. C.) 232. 
 
 "Davis v. Murray, 2 Const. Rep. (S. C.) 143; 12 Am. Dec. 661; Herbe- 
 mont v. Sharp, 2 McCord L. (S. C.) 265. 
 
 11 Starkey v. Neese, 30 Ind. 222 ; Patton v. Camplin, 63 Ind. 512. 
 
 u ln Howard v. Randolph, 73 Tex. 454; 11 S. W. Rep. 495, failure to de- 
 scribe the instrument containing the warranty was held fatal. 
 
 "Grantland v. Wight, 5 Munf. (Va.) 295. Moss v. Davidson, 1 Sm. 4 M, 
 '(Miss.) 112. Laughery v. McLean, 14 Ind. 106.
 
 478 MABKETABLE TITLE TO REAL ESTATE. 
 
 foreclose a purchase money mortgage, an answer that the defend- 
 ant had been compelled to pay off liens on the premises, without 
 showing that the conveyance to him contained a covenant against 
 incumbrances, was held bad. Inasmuch as his plea is virtually a 
 cross-action upon the warranty, it should contain the same aver- 
 ments as would a declaration upon the covenant. 15 The purchaser 
 may avail himself of a defective title as a defense to an action for 
 the purchase money, without averring that he was ignorant of the 
 defects at the time of the sale. It is for the plaintiff to reply and 
 prove knowledge of the condition of the title by the defendant. 16 
 
 192. RESUME. From the principles discussed in the fore- 
 going pages it would seem to follow, that if the covenantee was 
 never able to get possession of the land, the possession and para- 
 mount title being in another, there would be a total failure of the 
 consideration, which he might plead, even at common law, as an 
 absolute bar to an action for the purchase money. If, on the other 
 hand, he got possession and was afterwards evicted by the real 
 owner, he would, at common law be compelled to pay the purchase 
 money and look to his covenants for redress ; while in the Ameri- 
 can States he would be permitted to recoup, in an action for the 
 purchase money, the damages sustained from the plaintiff's breach 
 of covenant; or, by statute, to avail himself of that defense by 
 special plea in the nature of a plea of set-off. And, lastly, if the 
 defendant was in possession under a conveyance with covenants of 
 warranty, for quiet enjoyment, or against incumbrances, and there 
 had been no such breach of those covenants as to give him a present 
 right to recover substantial damages against the plaintiff, the ab- 
 solute failure of the title, or the existence of an incumbrance on 
 the premises, could not be availed of as a defense to an action for 
 the purchase money, whether by way of recoupment, statutory 
 set-off, counterclaim or otherwise. 
 
 The question whether a grantee may detain the unpaid purchase 
 money upon a breach of the covenant of seisin, on condition that he 
 surrender the premises to the grantor, is discussed in a subsequent 
 part of this work. 17 
 
 "Jenkinson v. Ewing, 17 Ind. 505. Ante, 176. 
 
 "Taul v. Bradford, 20 Tex. 264; Hurt v. McReynolds, 20 Tex. 595. 
 
 "Poet, ch. 26.
 
 OF AFFIRMANCE OF THE CONTRACT BY PROCEEDINGS IN EQUITY. 
 
 CHAPTER XVII. 
 
 SPECIFIC PERFORMANCE OF EXECUTOR* CONTRACTS AT THE SUIT 
 OF THE PURCHASER. 
 
 IN GENERAL. 193. 
 
 PAYMENT OF THE PURCHASE MONEY AS CONDITION PRECE- 
 
 DENT. 194. 
 
 LACHES OF PURCHASER. 195. 
 DAMAGES IN EQUITY. 196. 
 
 193. N.I GENIAL. We have thus far considered the rem- 
 edies of the purchaser of lands in affirmance of the contract by 
 action at law where the title has failed, both where the contract is 
 executory and where it has been executed by the delivery and 
 acceptance of a conveyance. We proceed now to consider the rem- 
 edies of the purchaser in affirmance of the contract by proceedings 
 in equity, and such rights of the vendor as are incidental to those 
 remedies. We shall consider the subject under the general head, 
 " Specific performance of executory contracts at the suit of the 
 purchaser ;" and then under the subdivisons, " The right of the 
 purchaser to take the title with compensation for defects;" 1 and 
 " The right of the purchaser to perfect the title, and to require 
 ft conveyance from the vendor." 2 
 
 A purchaser of a defective title may, where the contract has 
 been executed by a conveyance with covenants for title, invoke the 
 aid of a court of equity to compel the specific performance of a 
 covenant for further assurance, or to require the grantor to remove 
 an incumbrance from the premises. 8 If the contract is executory 
 he has his election either to proceed at law to recover damages 
 for a breach of the contract, or to recover back the purchase money, 
 or to proceed in equity for a specific performance of the contract, 
 with compensation for defects. 4 But the greater number of suits 
 
 1 Post, ch. 18. 
 Post, ch. 19. 
 
 Rawle Covts. (5th ed.) 104, 362; Sugd. Vend. (14th ed.) 613. 
 4 2 Story Eq. Jur. 779; Bispham's Eq. (3d ed.) 380; Fry Sp. Perf. 
 (3d Am. ed.) 1174.
 
 480 
 
 by the purchaser for the specific performance of the contract are 
 instances in which the vendor, having a perfect title, wrongfully 
 and wilfully refuses to convey. If the vendor has no title or a 
 bad title, the court will not, as we shall presently see, compel him 
 to execute a conveyance. Hence, it will be found that the pro- 
 ceedings of the purchaser in equity in affirmance of the contract, 
 where the title is defective, consist chiefly of cases in which he 
 insists upon the right to apply the purchase money to the dis- 
 charge of incumbrances upon the estate, or to the removal of objec- 
 tions to the title, or where he himself has so applied the purchase 
 money and seeks the- sanction of a court of equity ; or where he 
 asks that the vendor be compelled to discharge an incumbrance 
 on the premises, or to procure a release from some one claiming 
 an interest therein. 5 
 
 A court of equity will not compel the vendor to execute a con- 
 veyance of the premises if he have no title, and cannot obtain it 
 by ordinary process of law or equity, for that would be a vain and 
 useless act. 6 Neither will specific performance be decreed if the 
 equitable title is in a stranger, of whose rights the complainant 
 had notice when he entered into the contract. 7 He cannot be 
 
 'In Gotthelf v. Stranahan, 138 N. Y. 345; 24 N. E. Rep. 286, it was held 
 that an agreement to convey free from all incumbrances by warranty deed, 
 did not require the vendor to satisfy assessments for " contemplated improve- 
 ments," which the city might abandon, but that he must remove an assess- 
 ment made between the date of the contract and the time fixed for the 
 conveyance, for a local improvement made before the contract was entered 
 into. If the vendor agree to pay all taxes accruing before completion of. 
 the contract, and fail so to do, the purchaser may maintain an action for 
 specific performance, and is not confined to an action at law on the agree- 
 ment. Stone v. Lord, 80 N. Y. 60. 
 
 1 Sugd. Vend. (8th Am. ed.) 329 (217) ; Adams Eq. m. p. 81. Crop v. 
 Noston, 2 Atk. 74; Cornwall v. Williams, Col. P. C. 390; Bennet Col. v. 
 Cary, 3 Bro. C. C. 390; Te'ndring v. London, 2 Eq. Cas. Abr. 680; Bryan v. 
 Lewis, 1 Moo. & Ray, 386. Snell v. Mitchell, 65 Me. 48 ; Smith v. Kelly, 56 
 Me. 64. Hurley v. Brown, 98 Mass. 547. Pack v. Gaither, 73 N. C. 95. 
 Chartier v. Marshall, 51 N. H. 400. Jordan v Deaton, 23 Ark. 704. Gaither 
 v. O'Doherty, (Ky.) 12 S. W. Rep. 306. Ormsby v. Graham, 123 Iowa 202; 
 98 N. W. Rep. 724. 
 
 7 Franz v. Orton, 75 111. 100. A purchaser who has agreed to be ''at one- 
 half the expense of procuring a title" cannot demand specific performance 
 until he has paid his part of the expense of procuring title. Hutchinson 
 v. McNutt, 1 Ohio, 14.
 
 SPECIFIC PERFORMANCE OF EXECUTOBY CONTBACTS. 481 
 
 placed in a better position than his vendor. On the contrary, if 
 he took a conveyance with actual notice that the equitable title 
 was in a stranger, he would himself be compelled to convey to him, 
 for in such a case he would be regarded as a mere trustee of the 
 legal title. 8 
 
 The general rule is that specific performance cannot be decreed 
 against the vendor if he has parted with the legal title. 9 But 
 if the vendor disable himself from performing the contract by 
 conveying the premises to a third person, who has notice of the 
 purchaser's equities, the latter may maintain a bill for specific 
 performance against his vendor and the subsequent purchaser. A 
 second purchaser, with notice, takes subject to the first purchaser's 
 rights, and may be compelled to perform the original contract." 
 The vendor cannot defend a suit for specific performance on the 
 ground that he has only the equitable title; it is his business to 
 obtain the concurrence of the person having the legal title. 11 But 
 it is error for the court to decree that the defendant convey within 
 a. certain time when the bill shows that he has not the legal title. 12 
 
 If the title of the vendor be equitable only, the purchaser will 
 stand in the vendor's shoes and be entitled to all of his remedies 
 
 1 Sugd. Vend. (8th Am. cd.) 352; 2 Story Eq. Jur. (13th ed.) 783. 
 Fewster r. Turner, 6 Jur. 144. Champion v. Brown, 6 Johns. Ch. (N. Y.) 
 402; 10 Am. Dec. 343. Stone v. Buckner, 12 Sm. & M. (Miss.) 73. Hunter 
 r. Bales, 24 Ind. 299. See, also, Jacques v. Vigo County, 2 Blackf. (Ind.) 
 4M. Of course one who acquires the legal title without notice of the equi 
 table rights of a prior purchaser cannot be required to convey to such pur- 
 chaser. Cunningham v. Depew, Morris ( Iowa ) , 463. 
 
 Davenport v. Latimer, 53 S. C. 563; 31 S. E. 630. 
 
 "Story Eq. Jur. 395, 396. Estell v. Cole, 52 Tex. 170; Austin T. Ewell, 
 S Tex. Supp. 407. White v. Mooers, 86 Me. 62; 29 Atl. Rep. 936. Bates r. 
 Swiger, (W. Va.) 21 S. E. Rep. 874. Meyers v. Markham, 90 Minn. 230; 
 96 N. W. Rep. 787. 
 
 But in a case in which the purchaser had rejected the title as unmarket- 
 able by reason of liens on the property, it was held that he could not, after 
 waiting a year or more, and after a number of the liens had been satisfied, 
 maintain a bill for specific performance against the vendor and one to whom 
 the vendor had sold the property in good faith, though the second purchaser 
 had notice of the prior contract. Oliver Mining Co. v. Clark, 65 Minn. 277; 
 68 N. W. Rep. 23. 
 
 11 1 Sugd. Vend. (8th Am. ed.) 332, 525, citing Crop v. Norton, 2 Atk. 74; 
 Costigan v. Hastier, 2 Sch. & Lef. 160. 
 
 M Compton v. Nuttle, 2 Ind. 416. 
 31
 
 482 MARKETABLE TITLE TO EZAL ESTATE. 
 
 and may maintain a suit for specific performance against his 
 vendor and the original vendor." 
 
 If the purchaser sues the vendor for specific performance, it is 
 a good defense by the latter that he has not and cannot procure 
 the title. 14 If it be practicable, however, for him to procure the 
 title 1 * upon fair terms," it seems that he will be required so to 
 do, unless, it is presumed, the amount necessary to be expended 
 for that purpose should exceed the purchase money. " In equity " 
 an answer by the vendor that he cannot make title " will not 
 suffice, otherwise a seller who had altered his mind might very 
 easily get rid of the contract; but the courts of equity say he 
 shall answer on oath, first to a bill filed against him, then on 
 examination before a master whether a title cannot be made. The 
 courts often make a way to obviate apparent difficulties and com- 
 pel the seller to procure conveyances in order to complete his title, 
 and the seller's declaration that he rescinds the contract will not 
 at all defeat the purchaser's right." 17 A provision in the contract 
 that if the vendor cannot deduce a good title, or the purchaser 
 shall not pay the money on the appointed day, will not entitle 
 the vendor to rescind if the purchaser makes objections to the 
 title." It has been held that if the vendor have not title the pur- 
 chaser is, nevertheless, in his suit for specific performance, en- 
 titled to a decree that the vendor make a reasonable effort to 
 acquire the title and perform his contract. 15 It was not indicated 
 in this case how such a decree could be enforced. 
 
 The fact that the purchaser files a bill for specific performance 
 when he knows that a good title cannot be made, is no ground 
 upon which to compel him to take such title as can be made. 10 He 
 
 "1 Sugd. Vend. (8th Am. ed.) 571 (381). Schreck v. Pierce, 3 Iowa, 350. 
 
 "Swepson v. Johnson, 84 N. C. 449. Williams v. Mansell, 19 Fla. 546. 
 Ormsby v. Graham, 123 Iowa 202; 98 N. W. Rep. 724. 
 
 "Love v. Camp, 6 Ired. Eq. (N. C.) 209; 51 Am. Dee. 419. 
 
 " Love v. Cobb, 63 N. C. 324. 
 
 " Roberts v. Wyatt, 2 Taunt. 268. 
 
 ** Language of MAXSFTELD. C. J., in Roberts v. Wyatt, supra. 
 
 Wellborn v. Sechrist, 88 N. C. 287. In this case the vendor had disabled 
 kimself from performing the contract by conveying to a stranger. 
 
 1 Sugd. Vend. (8th Am. ed.) 528. Stapylton v. Scott, 16 Vea. 272.
 
 SPECIFIC PERFORMANCE OF EXECUTORY CONTRACTS. 483 
 
 must, however, submit to the alternative of taking that title or 
 having his bill dismissed. 21 
 
 But while specific performance cannot be decreed against a 
 vendor who has no title, it is no objection that he had no title 
 when the contract was made, if he has since acquired it. The 
 purchaser's equity is complete if the vendor have title at the time 
 of the decree. 22 It has been held, however, that if the vendor 
 agree to convey by quit claim, the agreement has reference only 
 to such title as he may then have, and not to a title thereafter 
 acquired, and that he cannot be compelled to convey such after- 
 acquired title to the purchaser. 23 
 
 The purchaser may, of course, file his bill requiring the vendor 
 to remove an incumbrance from the premises, unless the purchase 
 was made subject to incumbrances. 24 But the court cannot enter 
 a decree requiring the vendor to remove an incumbrance which he 
 has not a legal right to discharge. 25 Nor can the vendor be re- 
 quired to remove incumbrances or cure defects in the title where 
 the sale was not made upon a consideration deemed valuable in 
 law. 26 
 
 "1 Sugd. Vend. (8th Am. ed.) 528. Nicholson v. Wadsworth, 2 Swanst. 
 365. 
 
 "Graham v. Hackwell, 1 A. K. Marsh. (Ky.) 423. Tysen v. Passmore, 2 
 Barr (Pa.), 122; 44 Am. Dec. 181. Trask v. Vinson, 20 Pick. (Mass.) 109, 
 the court saying: "We know of no rule of law or principle of sound policy 
 which prohibits a person from agreeging or covenanting to convey an estate 
 not his own. He might have authority from the owner to sell, or he might 
 have the refusal of the estate, or he might rely upon his ability to purchase 
 it in season to execute his contract. If he fairly performs the terms of the 
 stipulation it matters nothing to the purchaser that the title was acquired 
 after the contract." 
 
 "Woodcock v. Bennet, 1 Cow. (N. Y.) 711; 13 Am. Dec. 568. This is 
 closely analogous to the rule that a quit-claim conveyance will not estop the 
 grantor from setting up an after-acquired title to the estate. Post, 218. 
 In Mitchell v. Woodson, 37 Miss. 567, it was held that an agreement to quit 
 claim would not prevent the vendor from acquiring and holding another 
 title before the time for making the quit claim. Citing Bush v. Cooper, 20 
 Miss. 599; 59 Am. Dec. 270. Jackson v. Wright, 14 J.ohns. (N. Y.) 193; 
 Bank v. Mersereau, 3 Barb. Ch. (N. Y.) 5<58; Jackson v. Hubbell, 1 Cow. 
 (N. Y.) 613. 
 
 "2 Sugd. Vend. (8th Am. ed.) 191, 192 (548). Bennett v. A"am8, 41 
 Barb. (N. Y.) 625. 
 
 "Jerome v. Scudder, 2 Bob. (N. Y.) 169. 
 
 *2 Story Eq. 793b. Froman v. Froman, 13 Ind. 317.
 
 484 MARKETABLE TITLE TO HEAL ESTATE. 
 
 If the contract provides only that the vendor shall make a good 
 and sufficient deed, and that the earnest money shall be refunded 
 if the title proves to be not good, the purchaser cannot, if he is 
 dissatisfied with the title, refuse to accept a conveyance with gen- 
 eral warranty, reject an offer to return the purchase money, and 
 require the vendor to remove objections to the title. The vendor, 
 under such circumstances, has a right to treat the contract as 
 rescinded, and to seek another purchaser. 27 Where a contract for 
 the sale of land provided that if the title should not be good and 
 should be refused by the purchaser, the contract should be void 
 and the purchase money returned, it was held that the vendor was 
 not thereby obligated to cure defects in the title, and that if the 
 title were rejected he might terminate the contract and repay the 
 purchase money. The purchaser refused to proceed with the pur- 
 chase because there was an incumbrance on the premises. 28 And 
 if the purchaser by his acts or conduct manifestly abandons the 
 contract, as by submitting to a forfeiture of the earnest monej, 
 he cannot afterwards elect to affirm the agreement and have a 
 specific performance in equity. This species of relief is a matter 
 of sound judicial discretion, and where the court perceives that the 
 purchaser has virtually rescinded the contract it will not interfere 
 in his favor, especially if in the meanwhile the property has 
 materially increased in value. He cannot keep the agreement 
 open indefinitely so as to avail himself of a rise in value, or t 
 escape loss in case of a depreciation. 29 On the other hand, a rapid, 
 unexpected and unprecedented increase in the value of the prop- 
 erty while the title is being perfected will not justify the vendor 
 
 " Brizzolara v. Mosher, 71 111. 41. 
 
 In a case in which the contract provided that the vendor should return 
 the deposit and should not be liable for damages in case the purchaser should 
 be warranted in rejecting the title as unmarketable, it was held that the 
 purchaser, on finding the title unmarketable, might complete the contract, 
 take a conveyance, and rely on the grantor's covenants for title, or that he 
 might rescind and receive back his deposit; but having elected to rescind he 
 could not afterward refuse to receive back his deposit and insist upon 
 specific performance by the vendor. Johnson v. Fuller, 55 Minn. 269 ; 56 
 N. W. 813. 
 
 58 Long v. Miller, 46 Minn. 13; 48 N. W. Rep. 409. 
 
 "Presbrey v. Kline, 20 D. C. 513. Giltner v. Rayl, (Iowa) 61 N. W. Rep. 
 225. Simpson v. Atkinson (Minn.), 39 N. W. Rep. 323.
 
 SPECIFIC PERFORMANCE OF EXECUTORY CONTRACTS. 485 
 
 in refusing to complete the contract, where the purchaser has 
 waived none of his rights, and has been guilty of no laches or 
 unjustifiable delay in seeking specific performance. 80 
 
 There must, of course, be an unconditional acceptance of an 
 offer to sell before the purchaser can maintain a bill for specific 
 performance. Therefore, where the acceptance by the purchaser 
 was qualified by the addition " provided the title is perfect," it 
 was held that a suit for specific performance could not be main- 
 tained by the purchaser. 31 
 
 194. PAYMENT OF THE PURCHASE MONEY AS CONDITION 
 PRECEDENT TO SPECIFIC PERFORMANCE. If the payment of 
 the purchase money and the conveyance of title by the vendor are 
 to be simultaneous and concurrent acts, neither party can demand 
 a specific performance by the other unless he is ready and willing 
 to perform on his part. If the vendor has executed a bond to 
 convey or make title at a specified time after payment of the 
 purchase money, the* retention of the title is his security for pay- 
 ment, and he cannot be compelled to convey unless the purchaser 
 has paid or offered to pay the purchase money. 32 A recovery of 
 the premises from the purchaser in ejectment, for failure to pay 
 the purchase money, does not necessarily deprive him of the right 
 to compel a specific performance of the contract. Thus, where the 
 purchaser declined to pay the purchase money on the ground that 
 the property was incumbered, and the vendor declared a forfeiture 
 and recovered the premises in ejectment, it was held that the pur- 
 chaser might waive his right to insist upon a perfect title, pay 
 the balance of the purchase money, less the amount of the incum- 
 brance, and compel a conveyance from the vendor with covenants 
 stipulated for in the contract. 33 
 
 "Keim v. Lindley, (N. J. Eq.) 30 Atl. Rep. 1063. In this case the 
 premises in controversy consisted of a narrow strip of water front that 
 became very valuable as a seaside resort. 
 
 n Corcoran v. White, 117 111. 118; 57 Am. Rep. 858. 
 
 "Mix v. Beach, 46 111. 316. Where a contract for the sale of land had 
 been rescinded by agreement between the vendor and the administrator of the 
 vendee after part of the purchase money had been paid, it was held that 
 the heirs of the vendee, who repudiated the rescission, could not compel 
 specific performance of the contract until they should pay or tender the 
 residue of the purchase money. Strange v. Watson, 11 Ala. 324. 
 
 "Wallace v. McLaughlin, 57 Ind. 53.
 
 486 MARKETABLE TITLE TO BEAT. ESTATE. 
 
 As a general rule, in the English practice, a purchaser who has 
 been put in possession, will be required to pay the purchase money 
 into court pending his suit for specific performance. 34 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. 35 
 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. 36 
 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. 37 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. 38 
 
 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. 39 
 
 "Birdsall v. Walton, 2 Edw. Ch. (N. Y.) 315. 
 
 "Gibson v. Clarke, 1 Ves. & B. 500. 
 
 * Clarke v. Elliott, 1 Mad. C. R. 606. 
 
 w l Sugd. Vend. (8th Am. ed.) 229, 345. Bonner v. Johnston, 1 Meriv. 
 366; Boothby v. Waller, 1 Mad. C. R. 197. 
 
 **Freebody v. Perry, Coop. 91; Fox v. Birch, 1 Meriv. 105. 
 
 "Ante, p. 201. Shattuck v. Cunningham, 166 Pa. St. 368; 31 Atl. 
 Rep. 136.
 
 SPECIFIC PERFORMANCE OP EXECUTORY CONTRACTS. 487 
 
 195. LACHES OF PURCHASER. The purchaser's application 
 for specific performance must be seasonably made. He cannot 
 delay the payment of the purchase money after the time fixed 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. 40 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. 41 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. 42 
 
 196. DAMAGES IN EQTJITY. 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. 43 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 
 practically a suit for damages only. 44 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 
 
 "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. 
 
 "Chabot v. Winter Park Res. Co., 34 Fla. 258; 15 So. Rep. 756. 
 
 "Galloway v. Barr, 12 Ohio, 354. Keim v. Lindley, (N. J. Eq.) 30 Atl. 
 Rep. 1063, where the subject was considered at length. Greenblatt v. Her- 
 mann, 144 N. Y. 13; 38 N. E. Rep. 966. Cf. Barbour v. Hickey, 2 App. Gas. 
 (D. C.) 207. 
 
 "1 Sugd. Vend. (8th Am. ed.) 350 (233); Rawle Covts. (5th ed.) 354. 
 Courts of equity in England are empowered by "Lord Cairns' Act" (21, 22 
 Viet. c. 27, 1858) 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. (N. Y.) 559; Kempshall v. Stone, 
 5 Johns. Ch. (N. Y.) 193; Morse v. Elmendorff, 11 Paige Ch. (N. Y.) 279; 
 Wiswall v. McGowan, 2 Barb. (N. Y.) 270. Hill v. Flske, 38 Me. 520; Smith 
 v. Kelly, 56 Me. 64. Doan v. Mauzy, 33 111. 227. McQueen v. Choteau, 20 Mo. 
 222; 64 Am. Dec. 178. 
 
 "Sims v. Lewis, 5 Munf. (Va.) 29. Bullock v. Adams, 5 C. E. Gr. (N. J.) 
 367. Lewis v. Gale, 4 Fla. 437.
 
 488 MARKETABLE TITLE TO EEAL ESTATE. 
 
 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. 45 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. 46 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, 47 unless 
 
 46 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 T. 
 
 Kay, 2 Bibb (Ky.), 434. Scott v. Bilgerry, 40 Miss. 119. Chinn v. Heale, 1 
 Munf. (Va.) C3. Taylor v. Rowland, 26 Tex. 293. O'Beirne v. Bullis, 80 
 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. IB 
 New 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. (N. 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 b 
 made, and merely seeks a conveyance, he cannot in the absence of fraud OB 
 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. 
 
 44 Snow v. Monk, 80 N. Y. Supp. 719; 81 App. Div. 206. 
 
 47 Fry Sp. Perf. (3d Am. ed.) 1227. McFerran v. Taylor, 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. Buxton, 37 Barb. 
 
 (N. Y.) 13. Taylor v. Rowland, 26 Tex. 293. In Fisher v. Kay, 2 Bibb 
 (Ky.), 436, it was said that there was 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 obligor's 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, 6 
 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 a decree for
 
 SPECIFIC PERFORMANCE OF EXECUTORY CONTRACTS. 489 
 
 the plaintiff knew when he brought his suit that there could be 
 no performance. 48 If the purchaser is first informed of the de- 
 fective title by the vendor's answer or other pleading, the juris- 
 diction to award damages will be clear. 49 And if the vendor 
 convey the premises to an innocent party pending the suit for 
 specific performance, the purchaser will be entitled to damages. 6 * 
 In a few cases damages have been 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; 51 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 he 
 has not a full and adequate remedy at law. 52 The converse of this 
 proposition, also, has been decided, namely, that the court will 
 entertain a bill solely for compensation and damages provided 
 specific performance can be decreed. 53 
 
 The court, instead of giving compensation in damages for a por- 
 tion 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 
 
 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 off the title when he brought his suit. If he was not so advised, the 
 case is at variance with the current of authority. 
 
 ** 2 Story Eq. Jur. 794, et seq. 
 
 49 3 Pom. Eq. Jur. 1410. Milkman v. Ordway, 106 Mass. 232. 
 
 "This, however, in England seems to be only by force of a statute (1858) 
 21 & 22 Viet. c. 27 ("Lord Cairns' Act")' enlarging the jurisdiction of the 
 Chancery Courts. 1 Sudg. Vend. (8th Am. ed.) 352. 
 
 "Woodcock v. Bennet, 1 Cow. (N. Y.) 711; 13 Am. Dec. 568. Gibbs v. 
 Champion, 3 Ohio, 337. Cunningham v. Depew, Morris (Iowa), 462. 
 
 "Aday v. Echols, 18 Ala. 353; 52 Am. Dec. 225. Specific performance was 
 denied in this case because it did not appear that all the purchase money 
 had been paid. 
 
 "Berry v. Vim Winkle, 1 Gr. Ch. (N. J.) 269; Copper v. Wells, Saxt. 
 (N. J. Eq.) 10.
 
 490 MARKETABLE TITLE TO REAL ESTATE. 
 
 adjoining lands to which he has title, but which were not embraced 
 in the contract. 54 
 
 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. 55 But if the vendor be guilty of fraud, 56 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. 57 
 
 "Kelly v. Bibb, 3 Bibb (Ky.), 317. 
 
 65 Bain v. Fothergill, L. R., 7 H. L. 158; Burrow v. Scammell, 19 Ch. Dec. 
 175, 181, 223. 
 
 "Ante, 97. 
 
 "Sugg v. Stone, 5 Jones Eq. (N. C.) 126; Taylor v. Kelly, 2 Jones Eq. 
 (N. 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 XVIII. 
 
 OF THE RIGHT OF THE PURCHASER TO TAKE TITLE WITH COM- 
 PENSATION FOR DEFECTS. 
 
 GENERAL RULE. 197. 
 
 INDEMNITY AGAINST FUTTTRE LOSS. 198. 
 
 INDEMNITY AGAINST DOWER. 199. 
 
 EXCEPTIONS TO GENERAL RULE. 200. 
 
 RIGHT OF VENDOR TO RESCIND ON FAILURE OF TITLE. 201. 
 
 197. GENERAL RULE. We shall see that ii 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 Sudg. Vend. (8th Am. ed.) 479, 466, 480; 2 Story Eq. 779; 2 Beach Eq. 
 Jur. 627; Pomeroy Sp. Perf. 438; Bish. Eq. (3d ed.) 390; Dart's Vend. 
 (5th ed.) p. 1066; Waterman on Sp. Perf. 499. Wood v. Griffith, 1 Swanst. 
 54, per Lord ELDON, who said : " No 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 all that 
 he has. The purchaser may insist on having the estate, such as it ,18. The 
 vendor cannot say that he will give nothing because he is unable to give all 
 that he has contracted to give. If a person possessed of a term for 100 years 
 contracts to sell the fee, he cannot compel the purchaser to take, but the 
 purchaser can compel him to convey the term, and this court will arrange the 
 equities between the parties." Wheatley v. Slade, 4 Sim. 126; Hill v. 
 Buckley, 17 Ves. 394, semble; Bradley v. Munton, 15 Beav. 460; Mortlock v. 
 Buller, 10 Ves. Jr. 316; Mawson v. Fletcher, L. R., 6 Ch. App. 91; Paton v. 
 Rogers, 1 Ves. & Ben. 352; James v. Lichfield, L. R., 9 Eq. 51; Barnes v. 
 Wood, L. R., 8 Eq. 424; Whittemore v. Whittemore, L. R., 8 Eq. 603; Hor- 
 rocks v. Rigby, L. R., 9 Ch. D. 180; Burrow v. Scammell, L. R., 19 Ch. D. 175.
 
 492 MARXETABLE TITLE TO REAL ESTATE. 
 
 in a case where the contract had been executed with covenants for 
 title in which the parties were mutually mistaken in respect to 
 the title of a part of the land. It was considered that the grantee 
 might hold the part to which the title w r as good and recover on 
 
 In Williams v. Edwards, 2 Sim. 98, where there was a stipulation that errors 
 in the description should not vitiate the agreement, but that, if the pur- 
 chaser's counsel should be of opinion that the title was not marketable, the 
 agreement should be void, and the counsel was of opinion that title could be 
 made to two-thirds of the property only, the purchaser was refused specific 
 performance with an abatement. To the text: Morgan v. Morgan, 2 Wh. 
 (U. S.) 302, n. Morss v. Elmendorf, 11 Paige (N. Y.), 277; Westervelt v. 
 Mattheson, 1 Hoff. Ch. (N. Y.) 37; Jerome v. Scudder, 2 Rob. (N. Y.) 169; 
 Bostwick v. Beach, 103 N. Y. 414. Felix v. Devlin, 86 N. Y. Supp. 12; 90 
 App. Div. 103. Jones v. Shackleford, 2 Bibb (Ky.), 411 ; McConnell v. Dunlap, 
 Hard. (Ky.) 41; 3 Am. Dec. 723; Step v. Alkire, 2 A. K. Marsh. (Ky.) 259; 
 Rankin v. Maxwell, 2 A. K. Marsh. (Ky.) 494; 12 Am. Dec. 431. Graham v. 
 Gates, 6 Harr. & J. (Md.) 229; Drury v. Connor, 6 Harr. & J. (Md.) 288. 
 Evans v. Kingsberry, 2 Rand. (Va.) 120; Chinn v. Heale, 1 Munf. (Va.) 63; 
 White v. Dobson, 17 Grat. (Va.) 262. Hudson v. Max Meadows L. & I. Co., 
 97 Va. 341; 33 S. E. Rep. 586. Satterfield v. Spier, 114 Ga. 127; 39 S. E. 
 Rep. 930. Henry v. Liles, 2 Ired. Eq. (N. C.) 407; Wilcoton v. Galloway, 67 
 N. C. 463. Tilley v. Land Co., 136 N. C. 437 ; 48 S. E. Rep. 824. Austin v. 
 Ewell, 25 Tex. Supp 403, where there was a mistake as to boundaries ; Roberts 
 v. Lovejoy, 60 Tex. 253. Collins v. Smith, 1 Head (Tenn.), 251; Topp v. 
 White, 12 Heisk. (Tenn.) 165; Moses v. Wallace, 7 Lea (Tenn.), 413. Weth- 
 erell v. Brobst, 23 Iowa, 586. Luckett v. Williamson, 31 Mo. 54. Adams v. 
 Messenger, 147 Mass. 185; 17 N. E. Rep. 491; 9 Am. St. Rep. 679. Tobin v. 
 Larkin, 183 Mass. 389; 67 N. E. Rep. 340. See, also, Massachusetts cases 
 cited, infra. " Indemnity against contingent right of dower." To the text : 
 Swain v. Burnett, 76 Cal. 299; 18 Pac. Rep. 394; Marshall v. Caldwell, 41 
 Cal. 614; Morehhout v. Barren, 42 Cal. 591. Florence Oil, etc., Co. v. Mc- 
 Candless, 26 Colo. 534; 58 Pac. 1084. Rohr v. Kindt, 3 W. & S. (Pa.) 563; 
 39 Am. Dec. 53 ; Barnes' Appeal, 46 Pa. St. 350 ; Erwin v. Myers, 46 Pa. St. 
 96. Wallace v. McLaughlin, 57 111. 53. Cowan v. Kane, 211 111. 572: 71 
 N. E. Rep. 1097. Lounsbery v. Locander, 25 N. J. Eq. 555; Meleck v. Cross, 62 
 N. J. Eq. 545; 51 Atl. 16. Wilson v. Cox, 50 Miss. 133. Moses v. Wallace, 7 
 Lea (Tenn.), 413. Gartrell v. Stafford, 12 Neb. 545; 11 N. W. Rep. 732. Beck 
 v. Bridgman, 40 Ark. 382. Vagueness and uncertainty in the pleadings and 
 proof, or a variance between them as to whether the vendor covenanted to 
 convey the entire interest in lands, or only his undivided interest, is no objec- 
 tion to a decree for specific performance, since the court can only compel him 
 to convey such interest as he may have. Bogan v. Baughdrill, 51 Ala. 312, 
 citing 3 Pars. Cont. 354. The purchaser has a right to accept an undivided 
 interest, with compensation, in lieu of the entirety. Covell v. Cole, 16 Mich. 
 223. In Cady v. Gale, 5 W. Va. 547, one who has sold his wife's separate 
 estate as his own was compelled to convey his life estate by the curtesy, the 
 purchaser electing to take such estate. The purchaser cannot maintain a
 
 BIGHT OF PUECHASER TO TAKE TITLE WITH COMPENSATION, 
 
 493 
 
 the warranty as to the residue. 8 The purchaser may insist upon 
 specific performance with an abatement of the purchase money, 
 if he be unable to obtain the benefit of an easement appurtenant 
 to the premises. Thus, where the owner of land sold it as building 
 lots, bounding the lots on streets of a specified width, as laid down 
 on a map but not actually opened, and the vendor did not own all 
 the streets designated on the map, and hence could not be com- 
 pelled to open them, the purchaser was held entitled to an abate- 
 ment of the price to the extent of the loss sustained on that 
 account. 4 
 
 A subsequent conveyance by the vendor is no ground for re- 
 fusing specific performance if the purchaser be willing to accept 
 what remains of the land, with an abatement of the purchase 
 money; 6 and this, though the subsequent conveyance were made 
 with his consent. 6 The vendor cannot object to specific perform- 
 ance on the ground that he holds a bare legal title in trust for 
 another, if the purchaser be willing to accept such title. 7 Nor 
 can he object that the title is outstanding in a third person. 8 The 
 purchaser may take the equitable title if he chooses, though, as 
 will be seen hereafter, he cannot be compelled to accept such a 
 title.' The purchaser may compel a surviving tenant in common 
 to convey, though the heir of the deceased tenant in common can- 
 not be compelled to complete the contract. 10 If the parties are 
 mutually mistaken as to the vendor's title to a part of the land, 
 the purchaser, having improved the premises, may compel the 
 render to convey the other part, and have a ratable abatement of 
 
 guit for specific performance against the vendor and a third person in adverse 
 possession of part of the land under a title adverse to that of the vendor, and, 
 in case the adverse claim is sustained, to have an abatement of the purchase 
 money. His remedy is in ejectment. Lang v. Jones, 5 Leigh (Va.), 192. 
 
 1 Butcher v. Peterson, 26 W. Va. 447 ; 53 Am. Rep. 89, citing Atty.-Gen. T. 
 Day, 1 Ves. 218. Beverly v. Lawson, 3 Munf. (Va.) 317. Compare, Silliman 
 v. Gillespie, 48 W. Va. 374; 37 S. E. Rep. 669. See, also, Clark v. Hardgrove, 
 7 Grat. (Va.) 399. But see post, this chapter, "Exceptions," as to mistake. 
 
 4 Leiker v. Henson, (.Tenn.) 41 S. W. Rep. 862. 
 
 * Wingate v. Hamilton, 7 Ind. 73. Bass v. Gilliland, 5 Ala. 761. 
 Waters v. Travis, 9 Johns. (N. Y.) 450. 
 
 T Hyde v. Kelly, 10 Ohio, 215. 
 
 *1 Sugd. Vend. (8th Am. ed.) 525, 532 (349, 355). 
 
 Post, ch. 31, 290. 
 "Atty.-Gen. v. Day, 1 Ves. 218.
 
 494 MARKETABLE TITLE TO REAL ESTATE. 
 
 the purchase money for the deficiency. 11 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. 12 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." 
 
 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 14 The rule in this respect is the 
 same as in actions at law for breach of the covenants for title. 15 
 If the title to the entire premises is good, but there is a deficiency 
 in the acreage or quantity purchased, the question whether the 
 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 the 
 standard text books. 16 
 
 If the purchaser when sued for the purchase money by the ven- 
 dor or his assignee, elect to keep the premises though the title be 
 defective, he cannot afterwards, when a bill is filed to subject hie 
 equitable interest in the premises to the payment of the judgment 
 for the purchase money, avail himself of want of title in the 
 vendor as a defense." 
 
 "Voorhees v. De Meyer, 3 Sandf. Ch. (N. Y.) 614. 
 
 11 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. Hep. 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 tr:.ct, if unimcum- 
 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. 
 
 "Fry Sp. Perf. (3d ed.) p. 578, et seq.; 1 Sugd. Vend. (8th Am. ed.) 491 
 (324) : 2 Story Eq. Jur. ch. 19. See Ketchum v. Stout, 20 Ohio, 453, whe^e 
 the subject is elaborately discussed, and many authorities collected. 
 
 "Dart v. McQuilty, 6 Ind. 391.
 
 RIGHT OF PURCHASER TO TAKE TITLE WITH COMPENSATION. 495 
 
 A decree for specific performance should not direct that the 
 vendor procure releases from parties over whom he has no control ; 
 but it should direct an inquiry by a master as to defects and in- 
 cumbrances, 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. 18 
 
 The purchaser in possession and insisting upon specific per- 
 formance of the contract with abatement of the purchase money 
 as to that part of the land to which the title had failed, must 
 surrender that part to the vendor. He cannot refuse to pay the 
 purchase money and at the same time retain possession. 19 
 
 198. INDEMNITY AGAINST FTTTT7BE 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, 20 or an incumbrance on the property, except in the case 
 of an inchoate right of dower in the premises, 21 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. 
 (U. 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 
 
 "Jerome v. Scudder, 2 Rob. (N. Y.) 169. 
 
 'Lanyon v. Chesney, 186 Mo. 540. 
 
 "Sugd. Vend. (8th Am. ed.) 467 (306) 574 (383) ; Fry Sp. Perf. (3d Am. 
 ed.) 1245; Batten Sp. Perf. Law Lib. 171. Balmanno v. Lumley, 1 Vis. 
 & 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 Nev. 
 & Per. 382; Lawrenson v. Butler, 1 Sch. & Lef. 13; Mortlock v. Butler, 10 
 Ves. 292 ; Colver Clay, 7 Beav. 189. Lounsbery v. Locander, 25 N. J. Eq. 554. 
 
 M Young v. Paul, 10 X. J. Eq. 415; 64 Am. Dec. 456. Post, this chapter.
 
 496 MARKETABLE TITLE TO REAL ESTATE. 
 
 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 
 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 incumbrances. The reason given for the distinc- 
 tion 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. 22 
 
 199. INDEMNITY AGAINST INCHOATE EIGHT OF DOWER. 
 If the wife refuse to join with her husband in the conveyance, 
 she cannot be compelled so to do. 23 The purchaser may of course 
 elect to accept the conveyance of the husband alone. 24 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. 26 If the written contract 
 
 K 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. 
 Woolfolk, supra, by the fact that the contract had been executed by convey- 
 ance with covenant against incumbrances, while in the latter case the con- 
 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 a conveyance with a covenant against incum- 
 brances, the vendor might have been compelled to provide an indemnity 
 against an existing incumbrance, though the contract was still executory. 
 
 23 2 Story Eq. Jur. 731. Troutman v. Gowing, 16 Iowa, 415. Hanna v. 
 Phillips, 1 Grant (Pa.), 253. Allison v. Shilling, 27 Tex. 450; 86 Am. Dec. 
 622. Yost v. Devault, 9 Iowa, 60. Richmond v. Robinson, 12 Mich. 193. 
 
 24 Zebley v. Sears, 38 Iowa, 507. Corson v. Mulvany, 49 Pa. St. 88 ; 88 Am. 
 Dec. 485. Steadman v. Handy (Va.), 46 S. E. Rep. 380. 
 
 25 1 Sugd. Vend. (8th Am. ed.) 465, semble, citing Wilson v. Williams, 3 
 Jur. N. S. 810. Davis v. Parker, 14 Allen (Mass.), 94; Woodbury v. Luddy, 
 14 Allen (Mass.), 1; 92 Am. Dec. 731. Wright v. Young, 6 Wis. 127; 70 Am. 
 Dec. 453. Sanborn v. Nockin, 20 Minn. 178. Troutman v. Gowing, 16 Iowa,
 
 1UGIIT OF PUBCHASEB TO TAKE TITLE WITH COMPENSATION. 497 
 
 between the parties contain no stipulation for a deed with a cove- 
 nant against incumbrances, and there is no provision in the con- 
 tract as to the contingent right of dower of the vendor's wife, the 
 purchaser, knowing of the existence of such right, cannot insist 
 upon a conveyance with abatement of the purchase money as in- 
 
 415; Leach v. Forney, 21 Iowa, 271; 89 Am. Dec. 574; Presser v. Hildebrand, 
 23 Iowa, 484; Zebley v. Sears, 38 Iowa, 507. Wingate v. Hamilton, 7 Ind. 
 73. See, also, Wilson v. Brumfield, 8 Bl. (Ind.) 146; Baker v. Railsback; 4 
 Ind. 553; Hazelrig v. Hutson, 18 Ind. 481; Martin v. Merritt, 57 Ind. 34; 
 26 Am. Rep. 45. An ingenious view of this question has been taken in a note 
 to the case of Humphrey v. Clement, 44 111. (2d ed.) 300. The annotator 
 concludes that a case in which the release of the contingent right of dower 
 cannot be procured, is one for decreeing damages against the vendor rather 
 than compensation or indemnity to the purchaser; and for this purpose he 
 considers it unnecessary that the value of the contingent right of dower shall 
 be capable of computation. " The damages would be the injury to the vendee 
 by virtue of being obliged to take the estate subject to the inchoate right, 
 not the value of the dower to the wife. If a jury in an action at law could 
 estimate the injury to the vendee at $250, why could not a chancellor esti- 
 mate the deduction which should be made from the purchase money at the 
 use of the $250 so long as the wife should live ? " It has been since held in 
 this State, that the purchaser cannot insist upon a conveyance with abate- 
 ment of the purchase money to the extent of the present value of the inchoate 
 right of dower. Cowan v. Kane, 211 111. 572; 71 N. E. Rep. 1097. In Heim- 
 Imrg v. Ismay, 35 N. Y. Super. Ct. 35, it was held that an inchoate right of 
 dower in the wife of the vendor was an incumbrance constituting a breach 
 of a contract to convey free from incumbrances; and that the purchaser was 
 ontitled to more than nominal damages, the vendor having entered into the 
 contract with full knowledge that his power to convey was contingent. See, 
 also, Williams v. Pope, Wright (Ohio), 406; Reynolds v. Clark, Wright 
 (Ohio), 656. 
 
 The cases in which the right of the purchaser to specific performance with 
 abatement of the purchase money, or decree for damages on account of an 
 inchoate right of dower, is denied, have been in some instances rested upon the 
 supposed want of means for ascertaining the amount which the purchaser may 
 detain; and in others, upon the idea that the wife is in effect morally coerced 
 to join in the deed, by a decree directing that her husband shall pay damages 
 in the event of her refusal. Bitner v. Brough, 1 Jones (Pa.), 138; Riddle- 
 berger v. Mintzer, 7 Watts (Pa.), 143; Wilier v. Weyand, 2 Grant (Pa.), 103; 
 Shurtz v. Thomas, 8 Barr (Pa.), 363; Clark v. Seirer, 7 Watts (Pa.), 107; 
 32 Am. Dec. 745; Riesz's Appeal, 73 Pa. St. 485; Burk's Appeal. 75 Pa. St. 
 141; 15 Am. Rep. 587; Burk v. Serrill, 80 Pa. St. 413; 21 Am. Rep. 105. 
 Lucas v. Scott, 41 Ohio St. 636. People's Sav. Bank v. Parisette, 68 Ohio St. 
 450 ; 67 N. E. Rep. 896 ; Phillips v. Stanch, 20 Mich. 369. Hopper v. Hopper, 
 16 N. J. Eq. 147. Hawralty v. Warren, 18 N. J. Eq. 124; Reilly v. Smith, 25 N. 
 J. Eq. 158. Humphrey v. Clement, 44 111. 299; Cowan v. Kane, 211 111. 572; 
 71 N. E. Rep. 1097. Barbour v. Hickey, 2 App. Cas. (Dist. of Col.), 207; 
 32
 
 498 MARKETABLE TITLE TO HEAL ESTATE. 
 
 demnity. 2 * The sum which the purchaser may detain is the money 
 value of the contingent interest of the wife, calculated according 
 to some one of the standard tables of longevity. 27 It is to be 
 observed that the abatement of the purchase money does not affect 
 th/e rights of the wife. She is no party to the proceeding, and r 
 if she were, she could not be compelled to accept a sum of money 
 in lieu of her contingent right of dower ; for that in effect would 
 be to compel her to perform specifically the contract of her hus- 
 band.* 8 As to the rights of the vendor; it is true that he may 
 survive his wife, by which the necessity for any indemnity would 
 be removed ; but the decree might provide for that contingency by 
 directing that the purchaser shall give bond with security to pay 
 the abated sum with interest upon the death of the wife living the 
 
 eternberg v. McGovern, 56 N. Y. 12; Dixon v. Rice, 16 Hun (N. Y.), 422. 
 Swepson v. Johnston, 84 N. C. 449. In Sternberger v. McGovern, 56 N. Y. 12, 
 which was a suit to enforce specific performance of a contract for the exchange 
 of lands, it was held that the plaintiff could not have a decree against the 
 defendant, whose wife refused to join in a conveyance by him, for the differ- 
 ence between the value of the property with a release of the inchoate right of 
 dower, and the value without such release. In Dixon v. Rice, 16 Hun (N. Y.), 
 422, and Martin v. Colby, 42 Hun (N. Y.), 1, it was held that if the wife 
 refused to join in the conveyance, the purchaser could not take a conveyance 
 from the husband alone with damages or compensation for the wife's contin- 
 gent right of dower, but must abandon his claim for specific performance 
 and sue at law for damages alone. It may be doubted whether a court in such 
 a case, as against a vendor acting in good faith, would give damages beyond 
 the present value of the wife's inchoate right of dower. And if the plaintiff 
 could recover such damages at law, no reason is perceived why the same should 
 not be allowed by way of compensation or abatement in his suit for specific 
 performance, as a matter of ancillary relief. 
 
 " People's Sav. Bank v. Parisette, 68 Ohio St. 450 ; 67 N. E. Rep. 896. 
 
 91 The rule for calculating the present value of the wife's contingent right 
 of dower was thus stated in Jackson v. Edwards, 7 Paige Ch. (N. Y.) 408. 
 " Ascertain the present value of an annuity for her life equal to the interest 
 in the third of the proceeds of the estate to which her contingent right of 
 dower attaches, and then deduct from the present value of the annuity for her 
 life, the value of a similar annuity depending upon the joint lives of herself 
 and her husband ; and the difference between those two sums will be the 
 present value of her contingent right of dower (McKean's Pr. L. Tables, 23, 
 4; Hendry's Ann. Tables, 87, Prob. 4.)" Of course in a suit for specific 
 performance against the husband, the object in ascertaining the present value 
 of the wife's interest, is not to compel her to take it, but to arrive at the 
 sum which the purchaser may detain as an indemnity against a possible claim 
 of dower. 
 
 a Cases cited, ante, note 3.
 
 BIGHT OF PURCHASER TO TAKE TITLE WITH COMPENSATION. 499 
 
 husband. 29 As to the rights of the purchaser; it is true that the 
 right of dower may become consummate by the death of the hus- 
 band immediately after the deed has been accepted, so that the 
 amount abated from the purchase money might prove an inade- 
 quate indemnity; but that is the purchaser's concern, and if he 
 chooses to accept a conveyance upon those terms there is nothing 
 of which he can complain. The sum abated from the purchase 
 money, as an indemnity against the wife's inchoate right of dower, 
 remains, of course, in the hands of the purchaser, and is not paid 
 over to the wife in satisfaction of her interest unless, indeed, she 
 should choose to accept it. The courts cannot compel her to part 
 with her contingent interest. 30 If the vendor's wife refuses to join 
 in the deed through his fraudulent procurement, specific perform- 
 ance will be granted the vendee with indemnity against the wife's 
 interest. 81 
 
 In some of the States it has been held that the husband cannot 
 be compelled to specifically perform a contract for the sale of the 
 " homestead " estate of himself and wife. This, however, is not 
 upon the ground that there is no means of ascertaining the value 
 of the interest; but for the reason that her interest is vested and 
 certain, and cannot be taken or sold without her consent." Where 
 the right of dower has become consummate by the death of the 
 husband, there can be, of course, no doubt of the right of the pur- 
 chaser to a decree against the heirs for a specific performance, 
 with compensation. 33 While the better opinion seems to be that 
 the purchaser may elect to take the title with an abatement of the 
 purchase money as an indemnity against a possible claim for 
 in the future, he cannot be compelled so to do. It is well 
 
 "Humphrey v. Clement, 44 111. 299. 
 
 "In Maine, however, she is compelled by statute to accept a certain pro- 
 portion of the purchase money in satisfaction of her contingent interest, 
 provided the sale be approved by one of the Justices of the Supreme Court. 
 Handy v. Rice, 98 Me. 504; 57 Atl. Rep. 847. 
 
 "Young v. Paul, 10 N. J. Eq. 401; 54 Am. Dec. 456, where the wife assented 
 to the sale in the first instance, and afterwards, at the instigation of her 
 husband, refused to relinquish her right. Peeler v. Levy, 26 N. J. Eq. 330. 
 
 82 Brewer v. Wall, 23 Tex. 585; 76 Am. Dec. 76; Allison v. Shilling, 27 
 Tex. 450; 86 Am. Dec. 622. 
 
 ** Springle v. Shields, 17 Ala. 295. In this case it was held that the pur- 
 chaser could not demand a gross sum as the present value of the dower right, 
 but should be relieved from payment of one-third of the value of the land at 
 the time of the contract, until the death of the dowress.
 
 500 MARKETABLE TITLE TO REAL ESTATE. 
 
 settled that a purchaser cannot be compelled to take the property 
 with indemnity against any loss that may accrue from a defective 
 title. 34 
 
 200. EXCEPTIONS TO GENTTRAT. RULE. The exceptions to 
 the rule that the purchaser may elect to take such title as the ven- 
 dor can make, with compensation for defects, are, where the ven- 
 dor's title being good only to a small portion of the estate, e. g., the 
 mansion house and curtilage, the effect of enforcing the rule would 
 be to leave the large appurtenant estate, sold with the mansion, on 
 the hands of the vendor with a proclaimed doubtful title. In such 
 a case, according to Sir Edward Sugden, the rule does not apply.* 6 
 Neither does it apply where the conditions of sale provide that 
 the vendor may rescind if the title be found defective.** It has 
 also been held that the purchaser cannot have specific performance 
 with compensation if he knew at the time the contract was made 
 that the interest of the vendor was partial, or that his title wag 
 defective. 37 This exception, however, seems not to have been recog- 
 
 14 Post, 327. 
 
 "1 Sugd. Vend. (8th Am. ed.) 480. In Bailey r. James, 11 Grat. (VO 
 468; 62 Am. Dec. 659, it was held that if a contract for the sale of land is 
 entire, for a specific sum of money, and the title to a part of it fails from a 
 eause of which both parties were ignorant, it is ground for rescinding the 
 whole contract; and the vendee cannot elect to take the part to which th 
 title is good, and rescind as to the other part. 
 
 "Williams v. Edwards, 2 Sim. 78. 
 
 * Pomeroy Sp. Perf. % 442. Lucas v. Scott, 41 Ohio St. 635. Lore T. Camp, 
 6 Ired. Eq. (N. C.) 209. James v. Lichfield, L. R., 9 Eq. 51. Peeler v. Lerj, 
 6 N. J. Eq. 332, where it was said : " Generally compensation will be denied 
 where the party asking it had notice at the time the contract was made, that 
 the vendor was agreeing for more than he could give or convey, and it appears 
 the vendee has not, in consequence of the contract, placed himself in a situa- 
 tion from which he connot extricate himself without loss. 2 Chitty Cont. 
 (llth Am. ed.) 1490; Fry on Spec. Perf. 795, n. 2. Nelthrop v. Howgate, 
 1 Coll. 223. Harnett v. Yielding, 2 Sch. &. Lef. 559. Wiswall v. McGowan, 
 1 Hoff. Ch. (X. Y.) 131. Thomas v. Dering, 1 Keen, 747. This rule has the 
 support of the clearest dictates of justice. It is unconscionable for one man 
 to take the promise of another to do a particular thing, which the promisee 
 knows at the time the promise was made, the promisor cannot perform except 
 by the consent or concurrence of a third person, and then, when consent or 
 concurrence is refused by the third person in good faith, to demand a strict 
 and literal fulfillment of the promise. He contracts with full notice of the 
 uncertainty or hazard attending the promisor's ability to perform, and has 
 no right, therefore, to ask the extraordinary aid of a court of conscience in 
 repairing the loss he has sustained by non-fulfillment of the contract."
 
 KIOHT OF PUBCHASER TO TAKE TITLE WITH COMPENSATION. 501 
 
 nized in those cases in which specific performance in favor of the 
 purchaser with indemnity against an inchoate right of dower has 
 been decreed. 38 Nor does the rule apply where, by reason of the 
 purchaser's delay in seeking specific performance the vendor has 
 been placed in a worse situation than if he had been called upon 
 to perform his contract, at the time stipulated. 39 Nor where the 
 contract is to convey the fee upon a contingency which has not 
 happened; in such case the purchaser cannot insist on the con- 
 veyance of a less estate, with abatement of the purchase money. 4 * 
 Nor where the defect in the title is such that the resulting differ- 
 ence in value between the interest contracted for and that to be 
 conveyed is not susceptible of computation. 41 Where the contract 
 provides that if the title be not good and cannot be made good 
 within a specified time the agreement shall be at an end when 
 that time expires, the vendor cannot if the title be incapable of 
 being perfected within the time agreed, elect to take such title 
 as the vendor can make; for the contract in that event is abso- 
 lutely at an end. 42 So, also, where the agreement provides that if 
 counsel shall be of the opinion that the title is not marketable 
 the contract shall be void, and counsel reports the title unmarket- 
 able as to part of the property, the purchaser cannot elect to take 
 the rest with compensation for defects. 43 
 
 The right of the purchaser to take such title as the vendor can 
 make is of course dependent upon the existence of a valid contract 
 between the parties. The contract consists in an offer to sell on 
 the one part and an unconditional acceptance on the other, and 
 
 "Ante, "Indemnity against Dower," 199. And see Fry Sp. Perf. (3d Am. 
 ed.) 1231, where it is said that the fact that the purchaser was from the 
 first aware of objections to the title, will not, as a general rule, affect his 
 right to require a conveyance with compensation for defects. 
 
 "Voorhees v. De Meyer, 2 Barb. (N. Y. S. C.) 37. Planer v. Eq. Life 
 Assur. Soc. (N. J. Eq.), 37 Atl. Rep. 668. 
 
 40 Weatherford v. James, 2 Ala. 170. Here the vendor agreed to sell the 
 interest of his wife, an Indian woman, provided he could obtain authority 
 from congress. He failed in this, and the purchaser asked that he be com- 
 pelled to convey his life estate as tenant by the curtesy. Specific perform- 
 ance was refused. 
 
 41 Milmoe v. Murphy, 56 Atl. Rep. 292 ; 65 N. J. Eq. 767. 
 "Post, this chapter; Mackey v. Ames, 31 Minn. 103. 
 
 a Williams v. Edwards, 2 Sim. 78.
 
 502 MARKETABLE TITLE TO REAL ESTATE. 
 
 will not be deemed complete if the acceptance be conditioned upon 
 the state of the title, to be afterwards ascertained. Thus, where 
 the offer to sell was accepted " provided the title is perfect," the 
 court refused to compel the vendor to accept the purchase monej 
 and convey the property to the purchaser, holding the contract to 
 be incomplete. 44 But it has been held that a condition in the offer 
 stands upon a different ground from a condition in the acceptance. 
 Thus, where the vendor proposed that the purchaser should forfeit 
 $500 on failure to perform the contract in thirty-five days, pro- 
 vided a certain lawyer pronounced the title good, and the pur- 
 chaser agreed to such proposition it was held that the contract was 
 complete, and that the vendor could not insist that there was no 
 unconditional acceptance of his offer. 45 
 
 It has been said that if, at the time of the contract, the pur- 
 chaser is fully aware that the vendor cannot execute the agree- 
 ment, it will be presumed that the agreement is founded in mis- 
 take; and the purchaser cannot insist upon a performance as to 
 the interest to which the vendor may be actually entitled. 46 The 
 purchaser seeking specific performance with compensation for 
 defects, must show not only that he has performed or offered to 
 perform all that is to be done on his part, but that before the 
 filing of his bill, he had by notice and demand given the vendor 
 an opportunity to perform the contract and make the appropriate 
 abatement or compensation. He should not needlessly involve the 
 vendor in the expense of a chancery suit. 47 If the purchaser elect 
 to take title to part of the premises with compensation for part 
 to which title cannot be had, he must take the whole of that part 
 to which the title is good. He cannot require a conveyance of 
 choice portions, and reject a deed which conveys all that part to 
 which the vendor has title. 48 
 
 "Corcoran v. White, 117 111. 118; 7 N. E. Rep. 525; 57 Am. Rep. 858. 
 
 Howland v. Bradley, 38 N. J. Eq. 288. 
 
 ** 1 Sugd. Vend. (8th Am. ed.) 467, citing Lawrenson v. Butler, 1 Sch. 4 
 Lef. 13; Mortlock v. Butler, 10 Ves. 292; Colyer v. Clay, 7 Beav. 189. Planer 
 v. Eq. Life Assur. Soc. (N. J. Eq.) 37 Atl. Rep. 668. But see Fry Sp. Perf. 
 (3d Am. ed.) 1231. 
 
 " Bell v. Thompson, 34 Ala. 633; Long v. Brown, 4 Ala. 626. 
 
 44 Perkins v. Hadley, 4 Hayw. (Tenn.) 148.
 
 BIGHT OF PUBCHASE TO TAKE TITLE WITH COMPENSATION. 503 
 
 201. BIGHT OF VENDOR TO RESCIND WHERE THE TITLB 
 IS DEFECTIVE. The purchaser cannot, of course, elect to take 
 the title such as it is, if the vendor has reserved the right to rescind 
 the contract in case it should appear that the title is defective. 4 ' 
 But if the contract provide that the purchase money shall be re- 
 funded if the title prove defective, 60 or that in such event the pur- 
 chaser shall not be required to pay the purchase money, 51 the 
 vendor cannot avail himself thereof to rescind the contract without 
 the consent of the purchaser. Inasmuch as the purchaser has, 
 generally, the right to take such title as the vendor can make, or to 
 take title to a part with compensation for a deficiency, it would 
 seem that the vendor could in no case elect to rescind the contract 
 on the ground that the title had failed, 62 unless he could show a 
 mutual mistake of fact or fraud 53 on the part of the purchaser 
 Avith respect to the title, or unless he had reserved the right to 
 rescind if the title should prove defective. Even though he reserve 
 
 'Mawson v. Fletcher, L. R., 10 Eq. 212; Woolcot v. Peggie, L. R., 15 App. 
 Cas. 42. Where the parties stipulated for the removal of liens within a 
 specified time, and in case of the inability of the vendor to remove them in 
 that time, the sale to be rescinded, it was held that the vendor was not en- 
 titled to rescind by showing that he had brought a suit to vacate the liens, 
 when he knew that the suit could not be determined within the specified 
 time, and when he might have removed the liens by paying them off. Sykes 
 v. Robbins, 125 Fed. Rep. 433. 
 
 Hale v. Cravener, 128 111. 408; 21 N. E. Rep. 534. See, also, Sloane T. 
 Wells, (111.) 30 N. E. Rep. 1042. Hale v. Cravener, supra, was distinguished 
 in Terte v. Maynard, 48 Mo. App. 463, where the following proposition was in 
 substance laid down: I"f the contract contains no distinct and independent 
 agreement to convey, and such agreement as it does contain is conditioned 
 on there being a good title, and the contract contains a further provision 
 that the agreement shall be null and void if the title turns out to be defective 
 and cannot be perfected within a specified time, the vendor cannot be held 
 liable in damages if the title be defective and cannot be cured within such 
 time. 
 
 "Roberts v. Wyatt, 2 Taunt. 268. 
 
 "Rohr v. Kiendt, 3 W. & S. (Pa.) 563; 39 Am. Dec. 53. 
 
 M If the parties during their negotiations assume the existence of an incum- 
 brance on the estate or of a defect in the title, whereby the vendor is induced 
 to sell at a lower price, and the purchaser knows that neither the incumbrance 
 nor thedefect exists, it is presumed that he would be deemed guilty of a fraud 
 upon the vendor if he did not disclose his information. But in such a case, 
 it has been held that the court would not rescind the contract, if the seller 
 might easily have ascertained the facts as to the incumbrance. Drake v. 
 Collins, 5 How. L. (Miss.) 253.
 
 504 MARKETABLE TITLE TO REAL ESTATE. 
 
 that right, it has been held that he must make reasonable efforts 
 to perfect the title before he will be permitted to rescind. 54 
 
 In England it is customary to insert in the common conditions 
 of sale a provision to the following effect : " If the purchaser shall 
 insist on any objection or requisition in respect of the title which 
 the vendor shall be unable or unwilling to remove or comply with, 
 the vendor shall be at liberty, by notice in writing, to rescind this 
 agreement." In a case in which there was a private right of way 
 over the premises, of which both parties were ignorant, it was held 
 that such a condition entitled the vendor to rescind, though another 
 clause of the contract provided that if any error in the description 
 of the property be found, the same should not annul the sale, but 
 compensation should be allowed in respect thereof. 55 If the con- 
 tract has been executed by a conveyance with covenants of war- 
 ranty, the vendor cannot, in the absence of fraud or mistake, 
 rescind on the ground that the title has failed. The purchaser has 
 a right to retain the possession and defeat the adverse claim if he 
 can, or if evicted, to recover on the warranty of the grantor. 56 But 
 
 84 Bibb v. Wilson, 31 Miss. 624. 
 
 M Ashburner v. Sewell, L. R., 3 Ch. Div. 405 (1891). We have seen that i 
 America the purchaser cannot insist on specific performance where the con- 
 tract provides that the agreement shall be at an end if the title be found to 
 be not good. Ante, 201. In a case in which the contract provided that if 
 the vendor should be unable or unwilling to remove the objections to the title, 
 he might annul the sale and return the purchaser's deposit without interest 
 or costs, notwithstanding any previous negotiation or litigation, it was held 
 that the vendor could not, for the purpose of avoiding costs, exercise this 
 power after judgment had been rendered against him for the deposit at the 
 suit of the purchaser. In re Arbib, L. K, 1 Ch. Div. 601 (1891). 
 
 "Trevino v. Cantu, 61 Tex. 88, the court saying: "No allegation of fraud 
 on the part of the purchaser is made, nor is it charged that there was any 
 mistake of fact occurring at the time of the conveyance made between the 
 parties. It is averred that the vendor was mistaken in supposing that the 
 original grantee, under whom he claimed, had a good title from the State. 
 Whether this was a mistake of fact or of law does not appear. And even if 
 the former, it is against just such mistakes that purchasers protect them- 
 selves by requiring covenants of warranty from their vendors. It would be 
 the height of injustice to allow a warrantor to be relieved from an obligation 
 on account of the happening of a contingency against which the obligation was 
 specially intended to provide. In this case it would relieve the vendor from 
 the payment of a sum which he virtually admits in his pleadings he justly 
 owed the purchaser under the express terms of the contract, the contingency 
 upon which it was to be paid having occurred. It is not the province of
 
 BIGHT OF PURCHASER TO TAKE TITLE WITH COMPENSATION. 505 
 
 if judgment in ejectment be recovered against the grantee, and the 
 grantor satisfies his warranty by returning the purchase money, 
 with interest, to the grantee, he will be entitled to a reconveyance 
 of the premises. 57 
 
 The vendor electing to rescind the contract where he has re- 
 served that privilege, must, of course, return the purchase money 
 if any has been paid. 58 He cannot maintain an action to remove 
 the cloud on his title arising from his contract with the purchaser 
 until he has returned the purchase money, or any obligations which 
 he may hold for the same. 59 On rescission of a contract, each party 
 must, as far as possible, be placed in statu quo. 
 
 equity to change the contract of a party and relieve him from an obligation 
 fairly undertaken, especially after he has received the consideration which 
 induced him to accept it. It can compel execution of agreements, but not 
 substitute one agreement for another. Wilgus v. Hughes, 2 A. K. Marsh. 
 (Ky.) 328. 
 
 'Williams v. Pendleton, 1 T. B. Mon. (Ky.) 188. 
 
 "Benson v. Shotwell, 87 Cal. 49; 25 Pac. Rep. 249. Drew r. Smith, 7 
 Minn. 301 (231). 
 
 "Dahl v. Press, 6 Minn. 89 (38).
 
 506 MARKETABLE TITLE TO BEAL ESTATE. 
 
 CHAPTER XIX. 
 
 OF THE RIGHT OF THE PURCHASER TO PERFECT THE TITLE. 
 
 BY THE PTJBCHASE OF ADVERSE CLAIMS. 202. 
 
 BY THE DISCHARGE OF LIENS OR INCUMBRANCES. 203. 
 
 SUBROGATION OF PURCHASER. 204. 
 
 202. BY THE PURCHASE OF ADVERSE CLAIMS. The pur- 
 chaser may always apply the unpaid purchase money to the acquisi- 
 tion of a valid, outstanding, paramount title to the land. 1 But he 
 cannot use the title so acquired to defeat the vendor's claim to so 
 much of the purchase money as may remain unexpended in his 
 hands, 2 unless he has been legally evicted, and has repurchased 
 
 'Corbally v. Hughes, 59 Ga. 493. Hill v. Samuel, 31 Miss. 306. Ash T. 
 Holder, 36 Mo. 163. It is said in this case that the rule is different where a 
 conveyance has been made " because then the vendee owes the vendor no faith 
 or allegiance, but holds adversely to him and all the world." 
 
 *1 Warv. Vend. 13, 14; 1 Sugd. Vend. (8th Am. ed.) 533 (355), where 
 it is said : " If a right be outstanding in a third person, which the purchaser 
 relies on as an objection to the title, and then purchases the interest for his 
 own benefit, the court will not permit him to avail himself of the purchase 
 against the vendor, but, allowing him the price paid for it, will compel him 
 to perfonr his original contract." Citing Murrell v. Goodyear, 21 Giff. 51 ; 
 affd., 1 DeG., F. & J. 432 ; Lawless v. Mansfield, 1 Dru. & War. 557. Harper 
 v. Reno, 1 Freem. Ch. (Miss.) 323; Hill v. Samuel, 31 Miss 305; Hardeman 
 v Cowan, 10 Sm. & M. (Miss.) 487; Champlin v. Dotson, 13 Sm. & M. (Miss.) 
 554; 53 Am. Dec. 102; Harkreader v. Clayton, 56 Miss. 383. Mitchell v. 
 Barry, 4 Hayw. (Tenn.) 136; Meadows v. Hopkins, 19 Tenn. (Meigs) 181; 
 33 Am. Dec. 140, and Tennessee cases there cited. Bond v. Montague (Tenn. 
 Ch. App.), 54 S. W. Rep. 65. Lewis v. Boskins, 27 Ark. 61. Strong v. Waddell, 
 56 Ala. 471; Mumford v. Pearce, 70 Ala. 452. Beall v. Davenport, 48 Ga. 
 165; 15 Am. Rep. 656. Wilkinson v. Green, 34 Mich. 221. Curran v. Banks, 
 123 Mich. 594; 82 N. W. Rep. 247. Cowdry v. Cuthbert, 71 Iowa, 733; 29 N. 
 W. Rep. 798, where the purchaser bought in a tax title under a tax sale 
 made prior to his purchase. Roller v. Effinger, (Va.) 14 S. E. Rep. 337. 
 Morgan v. Boone, 4 Mon. (Ky.) 291, 298; 16 Am. Dec. 153. Cox v. Johnson, 
 18 Ky. Law Rep. 516; 37 S. W. Rep. 154; Fuson v. Lambdin, 23 Ky. Law 
 Rep. 2245; 66 S. W. Rep. 1004. Wood v. Perry, 1 Barb. (N. Y.) 115, 134; 
 Foster v. Herkimer Mfg. Co., 12 Barb. (N. Y.) 352. Renshaw v. Gans, 7 Pa. 
 St. 117. Ramsour v. Shuler, 2 Jones Eq. (N. C.) 487, a case in which the 
 purchaser got in the outstanding title for a trifling sum, and which well il- 
 lustrates the justice of the rule. There was a conveyance in this case. The 
 rule stated in the text is the same, whether the contract be executory or exe- 
 cuted. See cases cited, ante, 168, and Rawle Covts. (5th ed. ) 192. Baker 
 v. Corbett, 28 Iowa, 317. The purchaser cannot resist the payment of the pur-
 
 OF THE EIGHT OF THE PURCHASER TO PERFECT THE TITLE. 507 
 
 the property under a new and distinct title. 3 Of course he may 
 rescind the contract, surrender the possession, and then acquire the 
 adverse title and set it up against the vendor. 4 But for obvious 
 reasons he cannot do this where he elects to affirm the contract. 
 The money paid by him to the adverse claimant will be treated, for 
 the purpose of this question, as money paid to the use and benefit 
 of the vendor. Hence, it follows that the purchaser cannot claim 
 the benefit of the title so acquired, except to the extent of the 
 amount disbursed by him to the adverse claimant, such amount to 
 be availed of as a set-off pro tanto to the unpaid purchase money, if 
 any. 5 A familiar illustration of these principles is afforded by the 
 
 chase money on the ground that the vendor failed to procure a conveyance 
 from a third person having an interest in the land, when he himself (the pur- 
 chaser) has procured a conveyance from such person. Calkins v. Williams, 
 36 111. App. 500. A purchaser at a judicial sale, who is permitted to retain 
 a part of the purchase money with which to pay off liens on the land, cannot 
 become an assignee of the liens, or subrogated to the benefit thereof further 
 than is necessary for his indemnity. Menifee v. Marye, (Va.) 4 S. E. Rep. 
 726. In Louisiana, the fact that the purchaser buys in the premises at a sale 
 under an incumbrance, does not affect his right to recover back the purchase 
 money paid his vendor. Boyer v. Amet, 4 La. Ann. 721. 
 
 8 Martin v. Atkinson, 7 Ga. 228 ; 50 Am. Dec. 403. Post, 219. 
 
 'Hill v. Samuel, 31 Miss. 305; Murphree v. Dogan, (Miss.) 17 So. Rep. 
 231. Grundy v. Jackson, 1 Litt. (Ky.) 13. Wilson v. Wetherby, 1 Nott & 
 McC. (S. C.) 373. Thredgill v. Pintard, 12 How. (U. S.) 24, 31, dictum; 
 WiJHson v. Watkins, 7 Wh. (U. S.) 53. If the title fail and the purchaser 
 repurchases from the real owner and enters under the title so acquired, which 
 is hostile to that of the vendor, the latter cannot compel specific performance 
 of the contract. Bensel v. Gray, 80 N. Y. 517. Stephens v. Black, 77 Pa. St. 
 138. In Hanks v. Pickett, 27 Tex. 97, it was held that a purchaser who de- 
 clines to do an act necessary to perfect his vendor's title, and which it is his 
 duty to do, cannot recover damages against his vendor for failure to make 
 title. In this case there was an implied undertaking that the purchaser 
 should appear before the county clerk and furnish evidence that he had occu- 
 pied the land as a pre-emption claim for a certain number of years. See 
 Walker v. Ogden, 1 Dana (Ky.), 247, where it was said that there might be 
 cases where the purchaser might in equity avail himself of a paramount title 
 ncquired from a stranger, as against his vendor. 
 
 In Shelly v. Mikkelson, (N. Dak.) 63 N. W. Rep. 210, the vendor aban- 
 doned the contract and sold 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. 
 
 * An exception to this rule exists where the outstanding title acquired is 
 that of the State. Ante, 168.
 
 508 MARKETABLE TITLE TO REAL ESTATE. 
 
 rule that a purchaser from one who holds under a void patent can- 
 not enter and locate the land for himself, and then seek to rescind 
 his contract and avoid the payment of the purchase 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 purchaser to pay the vendor 
 the balance justly coming to him under the contract, but cannot 
 divest the purchaser of the title fairly acquired. 7 Nor does the pur- 
 chase 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 pur- 
 chase money. Indeed, the acquisition of the adverse title is more 
 frequently availed of as a defense to an action for the purchase 
 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 affirmative 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 trans- 
 
 Searcy v. Kirkpatrick, 1 Overt. (Tenn.) 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 
 Tender'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. 
 
 7 Language of AGNEW, J., in Thompson v. Adams, 55 Pa. St. 479. 
 
 8 Getty v. Peters, 82 Mich. 661 ; 46 N. 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. 
 
 Nicholson v. Sherard, 10 La. Ann. 533. In Lee v. Porter, 5 Johns. Ch. (N. 
 Y.) 268, the chancellor doubted whether relief should be given the purchaser 
 in consequence of an outstanding claim which he for greater caution chooses 
 to buy in before it has received judicial sanction, in a suit to which all per- 
 sons in interest were parties, or were called upon to assert their title.
 
 OF THE RIGHT OF THE PURCHASER TO PERFECT THE TITLE. 509 
 
 action must have been such as would amount to a constructive evic- 
 tion. ]C In a case in which the purchaser bought in an adverse 
 claim, and it did not appear whether the title so acquired wa? para- 
 mour t or not, it was held that the court erred in decreeing against 
 the purchaser without referring the case to a commissioner to in- 
 quire into the validity of the adverse claim. 11 The price paid by 
 the purchaser, however, to obtain the outstanding title is not con- 
 clusive 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 outstanding 
 interest. He will receive credit on the purchase money only for 
 the actual value of the adverse title so acquired. 12 Where the pur- 
 chaser 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 pro- 
 cure 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 con- 
 vey with general warranty. This, perhaps, is all that is needed 
 where the interest is present and subsisting. If, however, the pur- 
 chaser desires to guard against a future, anticipated or prospective 
 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 INCTJMBBANCES. 
 The purchaser may at all times apply the unpaid purchase money 
 to the discharge of valid incumbrances binding the land in his 
 hands, and which his vendor is bound to remove. 15 The existence 
 
 'Ante, 150. 
 
 "Smith v. Parsons, 33 W. Va. 644; 11 S. E. Rep. 68. 
 
 "Pate v. Mitchell, 23 Ark. 590; 79 Am. Dec. 114. 
 
 "McCord v. Massey, 155 111. 123; 39 N. E. Rep. 592. 
 
 "Post, "Estoppel," 218. 
 
 15 2 Sugd. Vend. (8th Am. ed.) 201 (555). Smith v. Pettus, 1 Stew. & P. 
 (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 N. E. Rep. 97. Washer v. Brown, 5 N. J. Eq. 81.
 
 510 MARKETABLE TITLE TO KEAL ESTATE. 
 
 of an incumbrance on the premises is no ground for rescission so 
 long as it may be discharged with the unpaid purchase money. 18 
 Having paid off the incumbrance, the purchaser may, of course, 
 demand a specific performance of the contract." Such applica- 
 tions, however, are infrequent except in connectkm 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 purchase 
 money in his hands applied to the discharge of incumbrances. 18 In 
 Alabama it has been held that the amount so disbursed by the pur- 
 chaser 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 with the purchase money. 20 
 This rule, however, does not apply where the purchase money had 
 not become due at the time of sale under the incumbrance, 21 nor 
 where the vendor has expressly agreed to pay off the incumbrance. 22 
 In a case in which the vendor refused to remove the incumbrance 
 
 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. 
 
 "Greenby v. Cheevers, 9 Johns. (N. Y.) 126. Irvin v. Bleakly, 67 Pa. St. 24. 
 
 "A purchaser may buy in the land at a foreclosure sale under proceedings 
 against hia vendor, and having thus extinguished the incumbrance, require 
 specific performance by the vendor. Berry v. Walker, 9 B. Mon. (Ky.) 464. 
 
 "As in Washer v. Brown, 1 Halst. (N. J. Eq.) 81. 
 
 19 Cole v. Justice, 8 Ala. 793. 
 
 M 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. 
 
 "Dentler v. Brown, 1 Jones (Pa.), 295; McGinniss v. Noble, 7 W. & S. 
 (Pa.) 454. 
 
 ** Stevenson v. Mathers, 67 Iowa, 123.
 
 OF THE BIGHT OF THE PUECHASEB TO PEBFECT THE TITLE. 511 
 
 and told the purchaser if he wanted his rights to sue for them, 
 it was held that there was no obligation on the part of the pur- 
 chaser 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 generally 
 to one having an incumbrance on the premises, and also an un- 
 secured debt against the vendor, the money will 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. 26 In 
 a case, however, in which the vendor had received an indemnity 
 from his vendor against a supposed incumbrance, and upon a resale 
 of the property agreed with his vendee to remove the incumbrance, 
 it was held that he was estopped from denying the validity of the 
 incumbrance as against such vendee who had removed it. 26 
 
 The purchaser must exercise great caution in paying off incum- 
 brances constituting securities for the purchase money and which 
 pass with 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, however, the 
 mortgage was made to secure negotiable notes for the purchase 
 money, and these have been before maturity transferred to a pur- 
 chaser for value, the mortgage might still be enforced in favor of 
 the transferee, notwithstanding payment in full by the sub-pur- 
 chaser 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, 
 
 M Green v. Hernz, 37 N. Y. Supp. 887 ; 2 App. Div. 255. 
 24 2 Sugd. Vend. (8th Am. ed.) 201 (555), citing Brett v. Marsh, 1 Vern. 
 468; Hayward v. Lomax, 1 Vern. 24; Peters v. Anderson, 5 Taunt. 596. 
 "Ante, 133, 150. 
 "Hardigree v. Mitchum, 51 Ala. 151. 
 27 Windle v. Bonebrake, 23 Fed. Rep. 165. McLain v. Coulter, 5 Ark. 13.
 
 512 MABXETABLE TITLE TO BEAL ESTATE. 
 
 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 in- 
 cumbrance. 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 ob- 
 served, he can only claim reimbursement to the extent of the 
 amount actually paid out by him in discharge of the incumbrance. 31 
 But to that extent he will be subrogated to the benefit of the lien 
 or incumbrance as against the vendor as well as third persons. And 
 inasmuch as the doctrine of subrogation is the creature of equity 
 and in no wise dependent upon or arising from contract between 
 the parties, and is enforced in favor of any person wh.o 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 
 
 * 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. Johnson, 
 37 Kans. 337; 15 Pac. Rep. 204. Hardin v. Harrington, 11 Bush (Ky.), 367. 
 
 29 2 Sugd. Vend. (8th Am. ed.) 202 (555), and cases there cited. In Bryan 
 r. 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 ob- 
 tained a compromise of the decree, was allowed only the sum actually paid 
 by him, as a credit on the purchase money. 
 
 * 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. 
 
 81 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.
 
 OF THE EIGHT OF THE PUBCHASEE TO PEEFECT THE TITLE. 513 
 
 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 or 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 enforce 
 the same, for his own reimbursement. 33 
 
 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. 34 If, however, he receives notice after he has paid the 
 purchase money, no reason is perceived why he should not be per- 
 mitted to protect himself by acquiring the rights of outstanding 
 incumbrancers. 
 
 ** Post, ch. 27, 267. 
 
 "Freeman Void Jud. Sales, 50. Valle v. Fleming, 29 Mo. 152; 77 Am. 
 Dec. 557; Henry v. McKerlie, 78 Mo. 416. Hudgin v. Hudgin, 6 Grat. (Va.) 
 320; 52 Am. Dec. 124. Blodgett v. Hitt, 29 Wis. 184. Shepherd v. Mclntire, 
 5 Dana (Ky.), 574; McLaughlin v. Daniel, 8 Dana (Ky.), 1&3. French T. 
 Orenet, 56 Tex. 273. 
 
 "Bates v. Swiger, (W. Va.) 21 S. E. Rep. 874. 
 
 33
 
 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 inHhe 
 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. 
 
 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. 1 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. 2 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 
 
 *Va. Code, 1887, 2451. 
 
 *Sugd. Vend. (8th Am. ed.) 285; Rawle Covts. (5th ed.) 104, 362. 
 Stock v. Aylward, 8 Ir. Ch. 429. Nelson v. Harwood, 3 Call (Va.), 342. 
 McClaugherty v. Croft, 43 W. Va. 270; 27 S. E. Rep. 246.
 
 OF SPECIFIC PERFORMANCE OF COVENANTS FOR TITLE. 515 
 
 such incumbrances as may have been created by himself or those 
 claiming under him. 3 
 
 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. 4 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. 5 This, however, seems to involve 
 no principle of specific performance, unless specific performance 
 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 
 r the heirs or estate of the covenantee upon his covenants. 6 
 
 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. 7 
 
 By analogy to the rule that a covenantee paying off incum- 
 brances upon the premises cannot recover damages against the cove- 
 nantor 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. 8 
 It has been so held where the conveyance contained a covenant of 
 warranty, but no covenant against incumbrances. 9 
 
 'Rawle Covts. 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 sought to recover for an incumbrance on the premises which he had 
 paid off, after requesting the covenantor so to do, which request was refused. 
 
 4 Rawle Covts. (5th ed.) 104, 363. Davis v. Tollemache, 2 Jur. (N. S.) 
 1181, where it was said: "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.) 364. 
 
 As in Higgins v. Johnson, 14 Ark. 309; 60 Am. Dec. 544. Haffey v. 
 Birchetts, 11 Leigh (Va.), 83. 
 
 T Tallman v. Green, 3 Sandf. (N. Y.) 437. Tuite v. Miller, 10 Ohio, 382. 
 
 Ante, 131. 
 
 East Tenn. Nat. Bank v. First Nat. Bank, 7 Lea (Tenn.), 420. In this case 
 the purchaser took a conveyance with warranty, and afterward discovered 
 that the vendor had fraudulently concealed the existence of a prior vendor's
 
 516 MARKETABLE TITLE TO REAL ESTATE. 
 
 206. COVENANT AGAINST INCUMBRANCES. Whether under 
 a covenant against incumbrances alone, the grantor can in equity be 
 compelled to remove an incumbrance on 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. 10 There are cases, however, which hold the 
 affirmative of this question, and, to our mind, establish the better 
 doctrine. 11 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." 
 
 207. CONVEYANCE OF AFTER-ACQUIRED ESTATE. We 
 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 
 
 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. 
 
 11 Story's Eq. Jur. 717a, where it is said: " There is no pretense for the com- 
 plaints sometimes made by the common-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 performance 
 in equity, the remedies being concurrent but not coextensive with each other." 
 See, also, Ranelagh v. Hayes, 1 Vern. 189; 2 Cas. 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 ic 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.
 
 OF SPECIFIC PERFORMANCE OF COVENANTS FOR TITLE. 517 
 
 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 covenantce. 13 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. 14 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 the 
 after-acquired title to the grantee. 15 
 
 " Post, "Estoppel," Ch. 21. 
 
 U 2 Sugd. Vend. (8th Am. ed.) 294 (613); 3 Washb. R. Prop. (4th ed.) 
 479 (667) ; Rawle Covts. (5th ed.) 362. Taylor v. Debar, 1 Ch. Cas. 274. 
 Heath v. Crealock, L. R., 18 Eq. 215, 242 ; 10 Ch. App. 30. Gen. Finance Co. 
 v. Liberator Society, L. R., 10 Ch. Div. 15. Lewis v. Baird, 3 McL. (U. S.) 
 56, 80, 06. diet. Reese v. Smith, 12 Mo. 351, 06. diet. Henderson v. Overton, 
 2 Yerg. (Tenn.) 397; 24 Am. Dec. 492, 06. diet. Pierce v. Milwaukee R. Co., 
 24 Wis. 554; 1 Am. Rep. 203. 
 
 " Steiner v. Baughman, 12 Pa. St. 107, 108, where it was said by GIBSON, 
 C. J., that if the vendor had subsequently purchased a part of the premises, 
 equity would compel him to convey it over again in order to make good his 
 former deed; and this, for the reason that he had received value for it. In 
 1 Sugd. Vend. (8th Am. ed.) 533, it is said that if a man sell an estate to 
 which he had no title, and after the conveyance acquire the title, he will 
 be compelled to convey it to the purchaser. The proposition is not restricted 
 to cases in which there are covenants for title. See, also, Carne v. Mitchell, 
 10 Jur. 909.
 
 CHAPTER XXL 
 
 ESTOPPEL OF THE GRANTOR. 
 
 GENERAL RULES. 208. 
 
 AFTER ACQUIRED ESTATE MUST BE HELD IN SAME RIGHT. 
 
 I 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: let. 
 Estoppel in pcds f 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. 2 
 
 '2 Sugd. Vend. (8th Am. ed.) 507 (743). 
 
 7 Washb. Real Prop. 69 ; Bijrelow Estoppel, p. 453 ; Rawle Covt. 250 ; Gr. 
 Cruise Dig. ch. 26, 51; Judge HARE'S note, 2 Sm. L. Cas. (ed. 1866) 723.
 
 ESTOPPEL. OF THE GKANTOE. 519 
 
 The reason of this rule in large measure is that circuity 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 
 eovenantee where he has sustained no actual damage from a breach 
 of the covenant. 3 The history of the doctrine of estoppel by deed 
 as derived from common-law sources, is somewhat without the plan 
 
 Watkins v. Wassell, 15 Ark. 73. Doe v. Quinlan, 51 Ala. 539. Croft v. 
 Thornton, 125 Ala. 391: 28 So. Rep. 84. Klumpki v. Baker, 68 Cal. 559; 10 
 Pac. Rep. 197. O'Bunnon v. Paremour, 24 Ga. 489; Linsey v. Ramsey, 22 Ga. 
 627; Parker v. Jones, 57 Ga. 204. Hoppin v. Hoppin, 96 111. 265; Jones v. 
 King, 25 111. 384. Whitson v. Grosvenor, 170 111. 271; 48 N. E. Rep. 1018; 
 Owen v. Brookport. 208 111. 35; 69 N. E. Rep. 952. Glendinnihg v. Oil Co., 
 162 Ind. 642; 70 N. E. Rep. 976. Logan v. Steele, 4 T. B. Mon. (Ky.) 430; 
 Dickinson v. Talbot, 14 B. Mon. (Ky.) 49 (65); Logan v. Moore, 7 Dana 
 (Ky.), 74. Benton v. Sentell, 50 La. Ann. 869; 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 N. W. Rep. 662. Dye v. Thompson, 126 Mich. 597; 85 N. W. 
 Rep. 1113. Kaiser v. Earhart, 64 Miss. 492; 1 So. Rep. 635. Jewell v. Porter, 
 11 Fost. (N. H.) 39; Thorndike v. Norris, 4 Post. (N. H.) 454. Gough r. 
 Bell, 21 N. J. L. 156; Moore v. Rake, 26 N. J. L. 587. Jackson v. Winslow, 
 9 Cow. (N. Y.) 18. Wellborn v. Finley, 7 Jones L. (N. C.) 228. Hallyburton 
 v. Stagle, 130 N. C. 482; 41 S. E. Rep. 877. Pollock v. Speidel, 27 Ohio St. 
 86; Broadwell Phillips, 30 Ohio St. 255. Taggart v. Risley, 3 Oreg. 306. 
 Harvie v. Hodge, Dudley (S. C.), 23; Reeder v. Craig, 3 McCord (S. C.), 
 411; Wingo v. Parker, 19 S. C. 9. Johnson v. Branch, 9 S. Dak. 116; 68 
 N. 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. Young, 
 1 Wash. (T'y.) 454. Mitchell v. Petty, 2 W. Va. 470; 98 Am. Dec. 777. 
 Clark v. Lumbert, 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. Wiesner v. 
 Zaun, 39 Wis. 188. Shepherd v. Kahle (Wis.), 97 N. W. Rep. 506. Mc- 
 Williams v. Nisley, 2 S. & R. (Pa.) 507; 7 Am. Dec. 654; Logan v. Neill. 
 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 
 iisime of a stranger will not prevent the estate from passing to the original 
 grantee. Quivey v. Baker, 37 Cal. 470. Equity would compel such grantee 
 to convey to the covenantee. Wheeler v. McBain, 43 La. Ann. 859; 9 So. 
 R-ep. 495. 
 
 1 Cases cited in last note. See, also, post, 217. A son conveyed his 
 undivided half interest in his deceased father's property, and afterward pur- 
 chased his mother's life interest in the property. Held, that such life interest 
 in the half previously conveyed vested in the son's grantee. Carnes v. Swift 
 <Tex. Civ. App.), 56 S. W. Rep. 85. Robinson v. Douthit, 64 Tex. 101.
 
 520 MARKETABLE TITLE TO EEAL ESTATE. 
 
 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 
 
 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. 5 The rule is otherwise in case of a lease ; if the lessor has, 
 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 way of estoppel as to any after-acquired interest. 6 
 
 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. 7 
 
 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 incumbrancer. 8 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. 88 
 
 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 
 to the benefit of the covenantee. 9 It has been held that this rule 
 
 4 Bigelow on Estoppel, p. 329; Rawle Covts. for Title (5th ed.), ch. 11, 
 p. 351. 
 
 House v. McCormick, 57 N. Y. 319. 
 
 4 Kent Com. 98. House v. McCormick, 57 N. Y. 319. Walton v. Water- 
 house, 2 Saund. 415. 
 
 T Post, 218. Bigelow Estoppel (3d. ed.), 333. Henderson v. Overton, 2 
 Yerg. (Tenn.) 394; 24 Am. Dec. 492. Emmerson v. Sansome, 41 Cal. 552. 
 Frey v. Rawson, 66 N. C. 466. Dougald v. Dougherty, 11 Ga. 578. 
 
 Brown v. Staples, 28 Me. 497 ; 48 Am. Dec. 504. Bolles v. Beach, 2 Zab. 
 (N. J.) 680; 53 Am. Dec. 263. 
 
 aFlanary v. Kane, 102 Va. 547; 46 S. E. Rep. 681. 
 
 Franklin v. Dorland, 28 Cal. 175; 87 Am. Dec. 111. Tilton 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.
 
 ESTOPPEL OF THE GKANTOE. 521 
 
 does not apply where the covenantor, instead of disseising the cove- 
 nantee, merely remains in possession, without color of title, for the 
 statutory period. 10 
 
 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. 11 
 
 The estoppel binds not only the grantor but his heir or devisee 
 and his assigns, if they have notice of the rights of the grantee. 
 The heir or devisee, it seems, is bound only to the extent of assets 
 received from the grantor. 12 Such assets, it is apprehended, will 
 include personal estate, in those States in which the entire estate 
 of a decedent, real as well as personal, is made assets for the pay- 
 ment of his debts. 
 
 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 heirs of the grantor, even to 
 the extent of assets descended, from asserting against the grantee 
 a title derived by them through some source other than him, 
 
 Cf. Wicklow v. Lane, 37 Barb. (N. Y.) 244. Stearns v. Hendersass, 9 Cush. 
 (Mass.) 497; 57 Am. Dec. 65. Smith v. Monies, 11 Tex. 24; Ham v. Smith, 
 79 Tex. 310. Hines v. Robinson, 57 Me. 330; 99 Am. Dec. 772. Eddleman 
 v. Carpenter, 7 Jones L. (N. C.) 616. 
 
 10 Johnson v. Farlow, 13 Ired. L. (N. C.) 85. But see Sherman v. Kane, 46 
 N. Y. Super. Ct. 310, where it was held the rule" applied as well where pos- 
 session 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. (N. 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. 
 
 " 2 Tucker Bl. Com. 303, n. 8. Chauvin v. Wagner, 18 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 
 at the time he received it from the ancestor, and not merely to the 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.
 
 522 MARKETABLE TITLE TO REAL ESTATE. 
 
 the grantor ; 13 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. He cannot 
 by parol do away with his covenant of warranty." Conversely, a 
 grantor by warranty deed of land impressed with a resulting trust 
 in the grantee's hands, is not estopped by his warranty from ac- 
 quiring the interests of the cestui que trust. 15 
 
 No estoppel arises where the grantor's covenants have been ex- 
 tinguished ; as where he conveyed the land to one through whom 
 by mesne conveyances he acquires the title. 16 Thus, if A. convey 
 to B. with warranty, and B. convey to C., and then C. conveys to 
 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. 17 A 
 
 "Russ v. Alpaugh, 118 Mass. 369; 19 Am. Rep. 464. Foote v. Clark, 102 
 Mo. 394; 19 S. W. Rep. 981. Whitson v. Grosvenor, 170 111. 271; 48 N. E. 
 Rep. 1018. 
 
 "Rathbun v. Rathbun, 6 Barb. (N. Y.) 107. 
 
 "Condit v. Bigalow, 64 N. J. Eq. 504; 54 Atl. 160. 
 
 "Goodel v. Bennett, 22 Wis. 565. In Smiley v. Fires, 104 111. 416, where 
 A., owning three-fourths of an estate, conveyed the whole with warranty to 
 B., who owned the other fourth, and who, at the same time, with like war- 
 ranty, conveyed that fourth to A., it was held that the warranty of the one- 
 fourth from A. to B. was extinguished by B.'s reconveyance to A., so that 
 A.'s after-acquired title could not enure to the benefit of B. 
 
 "Thielen v. Richardson, 35 Minn. 509; 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.
 
 ESTOPPEL OF THE GKANTOK. 523 
 
 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. 18 
 
 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. 1 ' 
 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. 20 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 things so 
 remains. 21 
 
 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 land; he is not estopped by his warranty to 
 set up the title so acquired. 22 But if the only reference in the deed 
 to the mortgage is to except it from the covenant against incum- 
 brances, 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 
 benefit of the grantee. 23 
 
 The covenantor is estopped to set up the after-acquired estate as 
 well against a remote grantee as against his own grantor in every 
 
 "Linton v. Allen, 154 Mass. 432; 28 N. E. Rep. 780. 
 
 "Jackson v. Summerville, 13 Pa. St. 359. 
 
 20 Id. Gilbert v. Hoffman, 2 Watts (Pa.), 66; 26 Am. Dec. 103; SmuU 
 v. Jones, 1 W. & S. (Fa.) 138. 
 
 11 Language of COULTER, J., in Jackson v. Summerville, supra. Duncan v. 
 McCullough, 4 S. & R. (Pa.) 485; Chamberlain v. McClurg, 8 W. & S. (Pa.) 
 3(5. Co. Litt. 214b. 
 
 "Merritt v. Byers, 46 Minn. 74; 48 N. W. Rep. 417. Walther v. Briggs, 
 69 Minn. 98; 71 N. W. Rep. 909. Brown v. Staples, 28 Me. 497; 48 Am. 
 Doc. 504. 
 
 13 Sandwich v. Mfg. Co. v. Zellner, 48 Minn. 508; 50 N. W. Rep. 379. 
 Rooney v. Koenig, 80 Minn. 483; 83 N. W. Rep. 399.
 
 524 MARKETABLE TITLE TO REAL ESTATE. 
 
 case in which the remote grantee is entitled to the benefit of the 
 covenants of the original grantor. 24 The fact that one of the in- 
 tervening deeds in such case was a quit claim conveying only 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. 25 
 
 A covenant of warranty in a deed cannot operate by way of es- 
 toppel to confer upon the grantee greater title than the deed itself 
 would have conferred, if effective. Thus, in a case in which joint 
 owners executed a deed with warranty making partition 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 by his 
 warranty to assert title to the whole of the land. 26 
 
 A provision in a statute that an after-acquired title of the grantor 
 shall enure to the benefit of the grantee, refers to acquisition by 
 descent as well as by other methods. 27 
 
 209. AFTER-ACQUIRED ESTATE MUST BE HELD IN SAME 
 BIGHT. The after-acquired estate must be held by the grantor in 
 the same right as that in which the coveyance was made. Thus if 
 he convey in his individual capacity, and reacquire the estate in a 
 fiduciary capacity, 28 e. g., as trustee express or implied, 29 the 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." 
 
 "Johnson v. Johnson, 170 Mo. 34; 70 S. W. Rep. 241; 59 L. R. A. 748. 
 
 "Johnson v. Johnson, 170 Mo. 34; 70 S. W. Rep. 241; 59 L. R. A. 748. 
 
 29 Davis v. Agnew, 67 Tex. 206; 2 S. W. Rep. 43, 376. Chace v. Gregg, 
 88 Tex. 552; 32 S. W. Rep. 520. 
 
 "Leflore County v. Allen, 80 Miss. 298; 31 So. Rep. 815. 
 
 28 Jackson v. Hoffman, 9 Cow. (N. Y.) 271; Sinclair v. Jackson, 8 Cow. 
 (N. Y.) 587, semble. 
 
 21 Kelly v. Jenness, 50 Me. 455. Gregory v. Peoples, 80 Va. 355. 
 
 90 Jackson v. Mills, 13 Johns. (N. Y.) 463. The same rule applies to the 
 converse of this state of facts, as where a person without title conveys, and 
 afterwards acquires the title as trustee. Burchard v. Hubbard, 11 Ohio, 316.
 
 ESTOPPEL OF THE GRANTOR. 525 
 
 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. 31 
 
 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." 32 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. 33 
 
 211. ESTOPPEL OF MORTGAGOR. A mortgage containing 
 covenants of warranty is as effectual to pass an after-acquired title 
 as a conveyance in fee. 34 And a mortgage without warranty has been 
 held sufficient for that purpose ; 35 but there is a conflict of authority 
 upon this point. 36 A covenant of warranty contained in a purchase- 
 money mortgage will not estop the mortgagor to set up a sub- 
 i 
 
 "Carson v. Carson, 122 N. C. 645; 30 S. E. Rep. 4. 
 
 "Com. Dig. Estoppel E.; Co. Litt. 352b; Rawle Covt. 252. Kimball v. 
 Schoff, 40 N. H. 190; Carpenter v. Thompson, 3 N. H. 204; 14 Am. Dec. 348. 
 111. Land Co. v. Bonner, 91 111. 114, 119, a case in which tenants in common 
 made partition by conveying each to the other with covenants of warranty. 
 Brown v. Staples, 28 Me. 503; 58 Am. Dec. 504, where the covenantees had 
 by an instrument of as high a nature as the covenant, undertaken to remove 
 an incumbrance on the premises, the existence of which was complained of as 
 a breach of covenant. 
 
 "Grimes v. Redmon, 14 B. Mon. (Ky.) 234 (2d ed.) 189. Pugh v. Mayo, 
 60 Tex. 191. 
 
 "Jones v. Mortgages, 561, 682, 825. Judge HABE'S note to Duchess of 
 Kingston's Case, 2 Sm. Lead. Cas. (8th Am. ed.) 838. 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. 
 Crosg v. Robinson, 21 Conn. 387. Plowman v. Shidler, 36 Ind. 484; Boone v. 
 Armstrong, 87 Ind. 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. 
 
 S5 Stewart v. Anderson, 10 Ala. 504. 
 
 "Donovan v. Twist, 83 N. Y. Supp. 76; 85 App. Div. 130; Jackson V. 
 Littell, 56 N. Y. 108.
 
 526 MARKETABLE TITLE TO REAL ESTATE. 
 
 sequently acquired title against the mortgagee, 37 nor to recover on 
 the covenants in the original conveyance by the mortgagee, 38 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 purchase money, intended to 
 grant an estate which the deed assumed to grant, but which it did 
 not vest in him." 39 
 
 If the owner of land execute a second mortgage on it with cove- 
 nants of warranty and against incumbrances, and afterwards pay 
 off 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. 40 
 
 212. EFFECT OF VOID CONVEYANCE AS AN ESTOPPEL. 
 The rule that an after-acquired title passes to the grantee by virtue 
 
 "Bigelow Estoppel (4th ed.), 403; Rawle Covt. 267; Co. Litt. 390. 
 Haynes v. Stevens, 11 N. H. 32. Randall v. Lower, 98 Ind. 256. Ingalls v. 
 Cook, 21 Iowa 560. Brown v. Staples, 28 Me. 497; 58 Am. Dec. 504; Hardy 
 v. 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. (N. J.) 300; 2 Am. Dec. 354. Sumner v. Bar- 
 nard, 12 Met. (Mass.) 461; Hancock v. Carl ton, 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 
 mortgage that includes other lands not granted him by the mortgagee, will 
 not bt~ estopped as against the mortgagee to set up an after-acquired title to 
 those lands. Brown v. Phillips, 40 Mich. 264. 
 
 "Resser v. Carney (Minn.), 54 N. W. Rep. 89. 
 
 "Randall v. Lower, 98 Ind. 256. 
 
 40 Butler v. Seward, 10 Allen (Mass.), 466; Comstock v. Smith, 13 Pick. 
 (Mass.) 119; 23 Am. Dec. 670; Trull v. Eastman, 3 Met. (Mass.) 124; 37 
 Am. Dec. 126. Hooper v. Henry, 31 Minn. 264; 17 N. W. Rep. 476.
 
 ESTOPPEL OF THE OBANTOB. 527 
 
 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. 41 In those States, 
 however, in which a champertous deed is held to be valid as be- 
 tween the parties though void as to strangers, it is apprehended that 
 the after-acquired title would pass to the grantee. 42 Upon the 
 same principle it has been held that no estoppel arises out of a 
 fraudulent conveyance with covenant of warranty; the sub- 
 sequently-acquired title cannot be thus made to enure to the bene- 
 fit of the fraudulent grantee, and the grantor be permitted to ac- 
 complish by indirection what the law forbids to be directly done. 45 
 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 conse- 
 quence of his own fraud. 44 
 
 It has been held that a conveyance of the homestead by the 
 husband, with warranty, where void under the laws of the State 
 
 41 Kennedy v. McCartney, 4 Port. (Ala.) 141, 158, the court saying that 
 the covenantor is not estopped where he is inhibited from selling by the letter, 
 spirit or policy of a legislative act. Kercheval v. Triplett, 1 A. K. Marsh. 
 (Ky.) 493. Altemus v. Nichols, 24 Ky. Law R. 2401; 74 S. W. Rep. 221. 
 
 42 Farnum v. Peterson, 111 "Mass. 148, the court saying: "When it is said 
 that the deed of one who is disseised is void, it is intended only that it is 
 inoperative to convey legal title and seisin, or a right of entry upon which the 
 grantee may maintain an action in his own name against one who has actual 
 seisin. It is not void as a contract between the parties to it. The grantee 
 may ~vail 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 
 grantcA 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 unitirg that to his own present possession, defeat recovery by the 
 intermediate desseisor. Wade v. Lindsay, 6 Met. (Mass.) 407, 413; Cleve- 
 land 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 subsequent 
 to his own. W T hite v. Patten, 24 Pick. (Mass.) 324." 
 
 43 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. 
 
 "Barton v. Morris, 15 Ohio, 408. Smith v. Ingram, 132 N. C., 959; 44 
 S. E. Rep. 643; 61 L. R. A. 878.
 
 528 MARKETABLE TITLE TO REAL ESTATE. 
 
 because not executed by the wife also, does not estop the grantor 
 from setting up title in himself after the death of the wife.* 5 
 
 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. 4 * 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 
 grant and transfer of the estate. 47 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. 48 A dis- 
 tinction 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 lor 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 j 49 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 war- 
 ranty, have that effect by way of estoppel. 50 
 
 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 fulfill- 
 ment of all the requirements of the land laws, is void as between 
 the grantor and the United States, but has been held valid as be- 
 tween the grantor and grantee; so that upon the issuing of ft 
 patent after final proof by the entryman, the title so acquired 
 enures immediately to the benefit of the grantee. 51 
 
 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. 6 * 
 
 ^Bolen v. Lilly, 85 Miss. 344; 37 So. Rep. 811. 
 -Wallace v. Miner, 6 Ohio, 367, 371. 
 
 * Connor v. McMurray, 2 Allen (Mass.), 204. 
 
 * Patterson v. Pease, 5 Ohio, 191. 
 
 Brown v. Manter, 1 Fost. (N. H.) 528; 53 Am. Dec. 223. 
 "Terrett v. Taylor, 9 Cranch (U. S.), 53. Somes v. Skinner, 3 Pick. 
 (Mass.) 60. 
 
 "Anderson v. Wilder, 83 Miss. 606; 35 So. Rep. 875. 
 "Smith v. Ingram, 132 N. C., 959; 44 S. E. Rep. 643; 61 L. R. A. 878.
 
 ESTOPPEL OF THE GKANTOK. 529 
 
 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. 53 The learned com- 
 mentators upon this somewhat abstruse 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 
 
 M 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. (N. Y.) 528. Middlebury College v. Cheney, 
 1 Vt. 349. Moore v. Rake, 2 Dutch, (N. J.) 574; Vreeland v. Blauvelt, 23 
 N. J. Eq. 483. Bell v. Adams, 81 N. C. 118. 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 Post, (N. H.) 528; 53 Am. Dec. 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, feoff- 
 ment, common recovery, or other conveyance of like dignity, at common law. 
 Inasmuch as a deed of bargain and sale has, in America, completely super- 
 seded these ancient common-law modes of conveyance, and accomplishes all 
 of their purposes, it is difficult to perceive why it should r.ot be given the 
 same effect by way of estoppel. Mr. Rawle cites a large number of American 
 oases to the proposition that the effect of a conveyance with covenants of 
 warranty is to actually transfer to the covenantee any title which the cov- 
 enantor may afterwards acquire. Examination of these cases will show, as 
 observed by Mr. Bigelow (Estoppel [4th ed.l, 420), that in few, if any of 
 thorn, 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 lieu of damages for a breach of cov- 
 enant. 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. 
 
 34
 
 530 MARKETABLE TITLE TO EEAL ESTATE. 
 
 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-ac- 
 quired title 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 trans- 
 fer 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 PUBCHASEB OF AFTEB- ACQUIRED TITLE. 
 It seems to be a generally accepted rule throughout the United 
 States that a purchaser in searching the records for any prior con- 
 veyance which the vendor may have made, need not extend his 
 search back beyond the time at which the instrument evidencing 
 the vendor's title 54 was admitted to record. If the rule were other- 
 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 
 
 "2 Pom. Eq. Jur. (13th ed.) 761, and cases there cited. Rawle Covt. 
 (5th ed.) 259, where the author says that a purchaser who searches the 
 registry for previous deeds made by his grantor, is not obliged to go beyond 
 what is called " the line of title," and that it would be affectation to cite 
 authority for such familiar knowledge.
 
 ESTOPPEL OF THE GRANTOR. 531 
 
 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. 55 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. 56 They argue that the original purchaser having bought 
 without examining the title, or with knowledge that the title was 
 bad if he made such examination, is in no position to demand 
 favors. It is true that the question is, where there was a warranty 
 
 "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. * * * But 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. 
 
 M Judge HARE'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. MoCormick, 
 6 Watts (Pa.) 60; 21 Am. Dec. 450. Dodd v. Williams. 3 Mo. App. 278. 
 Burke v. Beveridge, 15 Minn. 181. May v. Arnold. 18 Ga. 181 : Fairrloth 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
 
 532 MARKETABLE TITLE TO REAL ESTATE. 
 
 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 covenantor 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 purchaser with notice of a conveyance 
 executed between parties w T ho 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. 57 It 
 does not appear, however, from their terms or from judicial con- 
 title. Farmers' Loan & Tr. Co. v. Maltby, 8 Paige (N. Y.), 361. Doswell 
 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. 700, where it is said : " The strongest argument 
 against 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 
 that 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 
 vested 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 times. It is, therefore, more consistent with 
 reason, as well as with principle, to treat deeds made by a grantor without 
 title as creating an equity which, though binding as between the original 
 parties, cannot be enforced against purchasers without notice. The unman- 
 ageable character of estoppels, 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 subsequent grantees with notice without endangering the title of a 
 bona fide purchaser." 
 
 "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,
 
 ESTOPPEL OF THE GRANTOB. 533 
 
 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. 58 It frequently 
 happens that the equitable owner of lands, e. #., one who has paid 
 the purchase money in full but has not received a conveyance, 
 sells and conveys, or mortgages his interests in the premises, and 
 afterwards receives a conveyance of the legal title, whether in such 
 a case, a subseqiient 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 de- 
 cided. 69 It has been intimated in Georgia that in such a case, the 
 
 1883, vol. 2, p. 883, subd. 4; Ga. Rev. Code, 1882, 2699; 111. Rev. St. p. 279, 
 J 7; Iowa Rev. Code, 1884, 1931; Kans. Comp. Laws, 1879, p. 211, 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. 
 
 "* 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. 370n. The Kansas statute (Comp. L. 1879, p. 211, 5) is, 
 perhaps, as unfavorable to the second purchaser as any. 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 that 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 
 of the deed conveying the equitable estate was not constructive notice of 
 that deed to D., on the ground that the statute requiring deeds to be recorded, 
 makes them void as to subsequent purchasers without notice if not recorded, 
 but gives them no additional validity (as notice) if recorded. The principle 
 of this decision was afterwards affirmed in Virginia by a statute which 
 provides : " A purchaser shall not be affected by the record of a deed or 
 contract made by a person under whom his 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 such person, which is duly admitted to record, 
 and frem whom the title of such person is derived." Va. Code, 1887, 2473.
 
 534 MARKETABLE TITLE TO REAL ESTATE. 
 
 first grantee had a right to establish an equitable title as against 
 the second grantee. 60 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 first 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, 61 as where he sees 
 him in the possession of the estate, 62 he cannot hold the subse- 
 quently-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 con- 
 veyance, being neither a party nor privy to that conveyance, waa 
 held not to be estopped thereby, and to be entitled to the land. In 
 other words, an estoppel cannot affect a purchaser under a judg- 
 ment against the grantor, entered prior to the conveyance creating 
 the estoppel.* 3 
 
 Creditors of the grantor are not purchasers, and, of course, can- 
 not subject the after-acquired estate to the payment of their debts 
 as against the grantee. 64 A different rule may prevail in those 
 States in which lien creditors are given priority over an unrecorded 
 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. 65 
 
 215. COMPULSORY ACCEPTANCE OF AFTER-ACQUIRED 
 TITLE IH 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 
 
 "Bevins v. Vanzant, 15 Ga. 521. 
 
 "Gochenour v. Mowry, 33 111. 331. Great Falls Ice Co. v. Worater, If 
 N. H. 412; Wark v. Willard, 13 N. H. 389. 
 "Doe v. Dowdall, 3 Houst. (Del.) 369. 
 "Jackson v. Bradford, 4 Wend. (N. Y.) 619. 
 M Kimball v. Blaisdell, 5 N. H. 533 ; 22 Am. Dec. 476. 
 "As in Virginia, Guerrant v. Anderson. 4 Rand. (Va.) 208.
 
 ESTOPPEL OF THE GBANTOE. 535 
 
 vendor, in most cases in which time is not of the essence of the con- 
 tract, 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. 66 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 ad- 
 verse claimant and require the grantee to take the title so acquired 
 in lieu of his damages. 67 Of course, as will be readily perceived, 
 the covenantee could have no object in rejecting the after-acquired 
 title and demanding his damages, unless the property had depre- 
 ciated 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. 68 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 neces- 
 sarily deprive the covenantee of any right to reject that title, be- 
 cause in such a case there would not be, and could never be, a right 
 
 "Ante, 202. 
 
 " 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. 
 Nichols v. Alexander, 28 Wis. 118; Mclnnis v. Lyman, 62 Wis. 191; 22 
 N. W. Rep. 405. In both of these cases the eviction was constructive, 
 the covenantees never having gotten possession of the property conveyed. 
 Cf. Noonan 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 can- 
 not after such entire eviction of the grantee purchase the title paramount 
 and compel the grantee to take the same against his will, either in satis- 
 faction of the covenant * * * or in mitigation of damages for the breach 
 of it." In Winfrey v. Drake, 4 Lea (Tenn.), 293, it seems to have been con- 
 ceded that the grantor might perfect the title in a suit for rescission on the 
 ground of mistake. 
 
 "Ante, 164.
 
 536 MARKETABLE TITLE TO REAL ESTATE. 
 
 to damages against the covenantor. The covenant of seisin, how- 
 ever, is broken as soon as made if the covenantor has no title, and 
 a right of action immediately accrues thereupon to the covenantee. 8 * 
 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 consideration money as damages so long as the cove- 
 nantee remains in the undisturbed possession of the estate. It 
 has been laid down by a learned writer upon this branch of the 
 law of estoppel that the effect of a conveyance with a covenant 
 of warranty or of .seisin is not to actually transfer to the cove- 
 nantee the after-acquired estate, so as to deprive him of the 
 election to take that estate, or recover damages for the breach 
 of covenant, but merely to rebut any claim of the covenantor 
 to the estate, leaving to the , covenantee the option of proceeding 
 in equity to compel a conveyance to him of the after-acquired 
 estate, or of recovering damages on the covenant. 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 con- 
 sideration. 70 The objection to this view of the doctrine of the af ter- 
 
 "Ante, 116. 
 
 "Rawle Covt. 182, 258. Mr. Rawle cites Tucker v. Clarke. 2 Sandf. Ch. 
 (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 covenantee cannot be compelled to take the after- 
 acquired title. Mclnnis v. 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 recovering 
 back the purchase money paid, regardless of the after-acquired title, the de- 
 cision 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 in 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 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-
 
 ESTOPPEL, OF THE GEANTOR. 537 
 
 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 recon- 
 vey the premises to the grantor, 71 but the writer is not aware of 
 any case in which this has been permitted after the outstanding 
 title had been acquired by the covenantor. There would seem 
 to be no equity in allowing the covenantee to rescind his executed 
 contract, when he is in the possession and enjoyment of every- 
 thing that he could demand under that contract. Accordingly, 
 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 cove- 
 nantor has gotten in the outstanding title. 72 
 
 yeyed. It would have been a little more plausible if there had been a 
 semblance of mutuality about it, BO 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. 
 
 W 3 Sedg. Dam. (8th ed.) $ 978. Baxter v. Bradbury, 20 Me. 260; 37 Am. 
 Dec. 49. Reese v. Smith, 12 Mo. 344. Cotton v. Ward, 3 T. B. Mon. (Ky.) 
 312; Burke v. Beveridge, 15 Minn. 208. Blackmore v. Shelby, 8 Humph. 
 (Tenn.) 439. Burton v. Reeds, 20 Ind. 02. Farmers' Bank v. Glenn, 68 N. C. 
 39; Hughes v. McNider, 90 N. C. 248. In this case the vendor was allowed, 
 after conveying the property, to perfect the title by paying off incumbrances. 
 Cornell v. Jackson, 3 Cush. (Mass.) 506. McCarthy v. Leggett, 3 Hill 
 (N. Y.), 134. King v. Gilson, 32 111. 349; 83 Am. Dec. 269. Morrison v.
 
 538 MARKETABLE TITLE TO REAL ESTATE. 
 
 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. 73 If the covenantee recover a judgment for damages for a 
 breach of the covenants of warranty or of seisin, he cannot after- 
 wards claim the benefit of a title acquired by the covenantee after 
 the covenant was made. 74 If the vendor was guilty of fraud in 
 respect to the title, the grantee cannot be required to take an after- 
 acquired title, and this upon the same principle that a vendor guilty 
 of fraud will not, even where the contract is executory, be permit- 
 ted to perfect the title. 75 The acceptance of a conveyance is not, as 
 
 Underwood, 20 N. H. 369; Fletcher v. Wilson, 1 Sm. & M. Ch. (Miss.) 376. 
 Hartley v. Costa, 40 Kans: 552; 20 Pac. Rep. 208, semble. Building Co. 
 v. Fray, 96 Va. 559; 32 S. E. Rep. 58. Middlebury College v. Cheney, 1 Vt. 
 336. In Cross v. Martin, 46 Vt. 14, it was said that the after-acquired title 
 enured to the grantee in discharge of the grantor's covenants, but the question 
 whether the grantor must take such title in lieu of damages was not before 
 the court. Knowles v. Kennedy, 82 Pa. St. 445. McLennan v. Prentice, 85 
 Wis. 427. Marsh v. Sheriff, (Md.) 14 Atl. Rep. 664. Kimball v. West, 
 15 Wall. (U. S.) 377. Vote, that in Cochran v. Pascault, 54 Md. 1, it was 
 held that under a covenant for further assurance the grantor had the right 
 to get in an outstanding title and tender a new deed to the grantee removing 
 the objection to the title, and that the grantee would be compelled to accept 
 such deed. 
 
 "Morris v. Phelps, 5 Johns. (N. Y.) 49; 4 Am. Dec. 323. Fitzhugh v. 
 Croghan, 2 J. J. Marsh. (Ky.) 439; 19 Am. Dec. 139. But see Noonan T. 
 Illsley, 21 Wis. 147, where the point was questioned, and King v. Gilson, 32 
 111. 348; 83 Am. Dec. 269. 
 
 "Bank v. Mersereau, 7 Barb. Ch. (N. Y.) 528, 572. Porter v. Hill, 9 Mass. 
 34; 6 Am. Dec. 22; Stinson v. Sumner, 9 Mass. 143. 
 
 "McWhirter v. Swaffer, 6 Baxt. (Tenn.) 42; Woods v. North, 6 Humph. 
 (Tenn.) 310; 44 Am. Dec. 312; Blackman 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. Dec. 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 Taw 
 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 the 
 date of the transaction. If the rule were otherwise, it would offer a reward 
 for injustice. A party knowing he had no title could sell, and, if the property
 
 ESTOPPEL OF THE GRANTOB. 539 
 
 a general rule, a merger of the right to rescind the contract on the 
 ground of fraud. 76 
 
 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; 77 the passing 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. 78 A covenant of seisin will also estop 
 the grantor from setting up the after-acquired title; 79 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. 80 The cove- 
 nants for good right to convey and for quiet enjoyment will trans- 
 mit the after-acquired title. 81 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 
 
 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 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 
 an<l 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." 
 
 "Post, 270, 276. 
 
 "Baxter v. Bradbury, 20 Me. 260; 37 Am. Dec. 49. Ruggles v. Barton, 13 
 Gray (Mass.), 506. Dickinson v. Talbot, 14 B. Mon. (Ky.) 65, and cases 
 cited, p. 493, note 2. 
 
 "Rawle Covts. for Title (5th ed.), 250. 
 
 "Pratt v. Pratt, 96 111. 184. Irvine v. Irvine, 9 Wall. (U. S.) 618. 
 
 "Allen v. Say ward, 5 Greenl. (Me.) 227. Doane v. Willcutt, 5 Gray 
 (Mass.), 328; 66 Am. Dec. 369. 
 
 Foss v. Strachn, 42 N. H. 40. Weightman v. Reynolds, 24 Miss. 675, 680.
 
 540 MARKETABLE TITLE TO REAL ESTATE. 
 
 title, and may be in equity compelled so to do. K The covenants 
 of seisin, against incumbrances. and for quiet enjoyment implied 
 from the words " grant, bargain and sell," have been held to act 
 as an estoppel j 83 so, also, a covenant of warranty implied from those 
 words. 84 But in Missouri, the covenants of seisin, against incum- 
 brances, and for futher 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. 85 It 
 seems that the warranty implied from a partition will not pass an 
 after-acquired estate. 86 . In England covenants for title are not 
 sufficient to create an estoppel against the grantor. There must be 
 a precise averment in the deed that he is seised of the estate pur- 
 ported to be conveyed. 87 
 
 217. ESTOPPEL NOT DEPENDENT ON AVOIDANCE OF CTE- 
 CU1TY OF ACTION. The following instances in which the doctrine 
 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 altogther 
 on avoidance of circuity of action. Those instances are the estop- 
 pel 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 Limitations, 88 to which may 
 be added those cases in which the grantor, undertaking to convey 
 an estate of a particular quality or description, is held to be estop- 
 
 "2 Sugd. Vend. (8th Am. ed.) 294; 3 Washb. Real Prop. 667 (4th ed. 479.) 
 Fitch v. Fitch, 8 Pick. (Mass.) 482. Bennett v. Waller, 23 111. 183 (97). 
 Pierce v. Milwaukee R. Co., 24 Wis. 551, 553; 1 Am. Rep. 203. Hope v. 
 Stone, 10 Minn. 141 (114). 
 
 De Wolf v. Haydn, 24 111. 525; King v. Gibson, 32 HI. 352; 83 Am. Dec. 
 269; Pratt v. Pratt, 96 111. 184, 197. 
 
 * Blakeslee v. Insurance Co., 57 Ala. 205. 
 
 "Bogy v. Shoab, 13 Mo. 365; Chauvin v. Wagner, 18 Mo. 53; Gilson v. 
 Chouteau, 39 Mo. 566; Butcher v. Rogers, 60 Mo. 138. 
 
 Rawle Covte. (5th ed.) pp. 381, 450. Walker v. Hall, 15 Ohio, 355; 36 
 Am. Dec. 482. 
 
 * Heath v. Creelock, L. R., 10 Ch. 30. Gen. Finance Co. v. Liberator, etc., 
 Society, L. R., 10 Ch. Div. 15. 
 
 "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
 
 ESTOPPEL OF THE GRANTOR. 541 
 
 ped from setting up an after-acquired title, even though the con- 
 veyance contained no covenants for title. The grantor is as much 
 bound by the recitals in his deed as by formal covenants. 89 In some 
 of the States it is provided that a fee-simple conveyance shall 
 operate to pass a subsequently acquired estate of the grantor. 90 
 
 Upon the question whether a married women 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 ; 91 principally for the reason that she cannot bind her- 
 self by her covenants, and that, consequently, there is no room for 
 application of the doctrine of estoppel in order to prevent a cir- 
 cuity of action. 92 There are decisions, however, that it is imrna- 
 
 title of a disseisor, 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. 
 
 "Post, 218. Denn v. Cornell, 3 Johns. Cas. (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; 46 S. E. Rep. 154. 
 
 "Ante, 214. Clark v. Baker, 14 Cal. 612; 76 Am. Dec. 449. Bernardy 
 v. Mortgage Co., (S. Dak.) 98 N. W. Rep. 167. 
 
 " Bishop Married Women, 603. Hempstead v. Easton, 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 
 N. H. 17; 23 Am. Dec. 705. Goodenough v. Fellows, 53 Vt. 102. In Lowell 
 v. Daniels, 2 Gray (Mass.) 161; 61 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 be 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 trusl upon it jointly with her husband, and, after the deed of 
 trust had been foreclosed, obtained a deed from her vendor conveying the 
 legal title, it was held that she could not set up such title against the pur- 
 chaser under the deed of trust. She would not be estopped to set up against 
 him an after-acquired title paramount to the right conveyed by her in trust, 
 but the legal title received by her from her vendor was in equity subordinate 
 to the right so conveyed, and could not avail her as an after-acquired title; 
 Barker v. Circle, 60 Mo. 258. 
 
 "Jackson v. Vanderheyden, 17 Johns. (N. Y.) 167; 8 Am. Dec. 378, a lead- 
 ing case; Carpenter v. Schermerhom, 2 Barb. Ch. (N. Y.) 314; Martin v. 
 Dwelly, 6 Wend. (N. Y.) 14; 21 Am. Dec. 245; Grout v. Townsend, 2 Hill 
 (N. Y.), 554. Edwards v. Davenport, 4 McCr. (U. S.) 34. Teal v. Woodworth, 
 3 Paige (N. Y.), 470. In Thompson v. Merrill, 58 Iowa, 419, it was held that 
 a statute providing that a married woman should not be liable on her cove- 
 nants in a conveyance of the husband's lands relieved her as well of liability 
 on her covenants by way of estoppel as for damages.
 
 542 MARKETABLE TITLE TO REAL ESTATE. 
 
 terial whether the deed was with or without warranty, there being 
 no estoppel in either case. 93 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. 94 Nor will a 
 statute authorizing her to convey have that effect. 93 . 
 
 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. 96 Such decisions necessarily proceed upon the principle 
 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 covenants as if 
 the deed contained them. 97 She is estopped from setting up her 
 own title existing at the time of the conveyance; otherwise, the 
 statutes permitting her to convey would be rendered nugatory. 98 
 In those States in which a married woman is permitted 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 covenant she is estopped 
 from setting up an after-acquired title to the property. 99 If the 
 
 "Den v. Demarest, 1 Zab. (N. J.) 541. See, also, the remarks of McCRABY, 
 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 Cush. (Mass.) 
 264, 270. Griffin v. Sheffield, 38 Miss. 359, 393; 77 Am. Dec. 646. Strawn v. 
 Strawn, 50 111. 33. State v. Kemmerer, 15 S. Dak. 504; 90 N. W. Rep. 150. 
 
 M O'Neill v. Vanderberg, 25 Iowa, 107. Whether she would be estopped if 
 the conveyance were of her own land, quaere. Childs v. McChesney, 20 Iowa, 
 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. C.) 423. 
 
 "Fowler v. Shearer, 7 Mass. 14; Colcord v. SAvan, 7 Mass. 291; Nash v. 
 Spofford, 10 Met. (Mass.) 192; 43 Am. Dec. 425; Doane v. Willcutt, 5 Gray 
 (Mass.), 328, 332; 66 Am. Dec. 364; Knight v. Thayer, 125 Mass. 25. Massie 
 v. Sebastian, 4 Bibb (Ky.), 436. But see Hobbs v. King, supra. Hill v. West, 
 8 Ohio, 222; 21 Am. Dec. 442; Farley v. Eller, 29 Ind. 322; Beal v. Beal, 79 
 Ind. 280, obiter. 
 
 " Graham v. Meek, 1 Oreg. 328. 
 
 "King v. Rea, 56 Ind. 1. Wadleigh v. Glines, 61 N. H. 17; 23 Am. Dec. 
 705. Summerfield v. White, 54 W. Va. 311; 46 S. E. Rep. 154. 
 
 "Cooper v. Burns, 133 Fed. Rep. 398.
 
 ESTOPPEL OF THE G KAN TOE. 543 
 
 deed does not show on its face her ownership of the land conveyed, 
 the fact may be shown by parol. 1 
 
 A release of a contingent right of dower by a married woman 
 cannot operate as a conveyance of an existing or after-acquired 
 estate in the premises by estoppel or otherwise. Such a deed, 
 being insufficient to pass an existing estate, cannot have that oper- 
 ation by way of estoppel. 2 
 
 While covenants for title cannot be required from the State or 
 sovereign power, and while, if made, there can be no action for the 
 breach of them, yet, according to the weight of authority in the 
 United States, such covenants, if contained in a grant by the State, 
 will estop her 'from claiming the land afterwards as against the 
 grantee and his assigns. Therefore, where the State granted lands 
 to an alien with warranty, it was held that upon the death of the 
 grantee she was estopped to set up the alienage of the grantee 
 or of his heirs, as ground of escheat." The same effect has been 
 given to recitals by the government in public grants, and other sol- 
 emn instruments. 4 In several cases, however, it has been held 
 that the doctrine of estoppel has no application to acts of the 
 sovereign power. 5 A bankrupt is estopped to set up an after- 
 acquired title as against his covenants,* or as against his deed with- 
 
 1 Cooper v. Burns, 133 Fed. Rep. 398. 
 
 1 Burston v. Jackson, 9 Oreg. 275. 
 
 'Commth. v. Andre, 3 Pick. (Mass.) 224. 
 
 'People v. Society, 2 Paine (U. S.), 557; Menard v. Massey, 8 How. (U. S.) 
 293, 313. Magee v. Hallett, 22 Ala. 718. Nieto v. Carpenter, 7 Cal. 527. 
 Commth. v. Pejepscut, 10 Mass. 155. 
 
 Taylor v. Shufford, 4 Hawks (N. C.), 116; 15 Am. Dec. 512; Candler v. 
 Lunsford, 4 Dev. & Bat. (N. C.) 407; Wallace v. Maxwell, 10 Ired. (N. C.) 
 112; 51 Am. Dec. 380. There were no covenants in any of these cases. In St. 
 Louis Refrigerator Co. v. Langley, 66 Ark. 48; 51 S. W. Rep. 68, it was 
 held that an act providing that an after-acquired title should pass, under the 
 prior conveyance, immediately to the grantee, did not apply to conveyances 
 by the State, the State not being expressly mentioned in the act. 
 
 Chamberlain v. Meeder, 16 N. H. 381. Gregory v. Peoples, 80 Va. 355. In 
 Bush v. Cooper, 26 Miss. 599; 59 Am. Dec. 270; 18 How. (U. S.) 82, it ap- 
 peared 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 cove- 
 nant 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.
 
 544 MARKETABLE TITLE TO SEAL ESTATE. 
 
 out covenants, 7 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. 8 
 
 218. MERE QUIT CLAIM DOES NOT OPERATE AN ESTOPPEX. 
 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. 9 And if 
 
 7 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 controversy as to 
 the title of personal property. 
 
 8 Gregory v. Peoples, 80 Va. 356, where it was said by LEWIS, P. : " It was 
 claimed that by his discharge in bankruptcy H. was relased from the obliga- 
 tion 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 the 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 is 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 incon- 
 sistent with what he undertook to convey. It has, therefore, been held that a 
 discharge in bankruptcy, while effectual to release the covenantor from lia- 
 bility 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 ol 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. 
 
 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. (N. Y.) 81, and 
 Jackson v. Murray, 12 Johns. (N. Y.) 201, in which it did not appear that 
 the deeds were without warranty. Edwards v. Varick, 5 Den. (N. Y.) 664, 
 702; Sparrow v. Kingman, 1 Const. (N. Y.) 242, 247; Jackson v. Littell, 56 
 N. Y. 108; Cramer v. Benton, 64 Barb. (N. Y.) 524. Boswell v. Buchanan, 3 
 Leigh. (Va.) 365; 23 Am. Dec. 280; Wynn v. Harman, 5 Grat. (Va.) 157. 
 Comstock v. Smith, 13 Pick. (Mass.) 116; 23 Am. Dec. 670. Hagensick v. 
 Castor, 53 Neb. 495; 73 N. W. Rep. 932; Troxell v. Stevens, 57 Neb. 329; 77
 
 ESTOPPEL OF THE GRANTOR. 545 
 
 the grantor warrant the title specially, the subsequently-acquired 
 estate will not pass to the grantee if it came to the grantor through 
 
 N. W. Rep. 781. The assignment of a mortgage by deed without covenants of 
 warranty, does not estop the grantor to set up an after-acquired title to the 
 mortgaged premises. Merritt v. Harris, 102 Mass. 326; Weed Machine Co. v. 
 Emerson, 115 Mass. 554. McBride v. Greenwood, 11 Ga. 379; Morrison v. 
 Whitesides, 116 Ga. 459; 42 S. E. Rep. 729; Taylor v. Wainman, 116 Ga. 495; 
 43 S. E. Rep. 58. Kent v. Watson, 22 W. Va. 568. Simpson v. Greeley, 8 
 Kans. 586; Bruce v. Luke, 9 Kans. 201; 12 Am. Rep. 491; Scoffins v. Grand- 
 staff, 12 Kans. 470; Young v. Clippinger, 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 against all claims if any should after- 
 wards be asserted against it. Ott v. Sprague, 27 Kans. 624. Harden v. Collins, 
 8 Nev. 49. Demarest v. Hooper, 2 Zab. (N. J. L.) 620; Howe v. Harrington, 
 18 N. J. Eq. 496; Smith v. De Russy, 29 N. 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. Baker, 37 Cal. 465. Gib- 
 son v. Chouteau, 39 Mo. 536; Bogy v. Shoab, 13 Mo. 365; Butcher v. Rogers, 
 60 Mo. 138; Kimmer v. Benna, 70 Mo. 52, 68. Kinsman v. Loomis, 11 Ohio, 
 475. Frink v. Darst, 14 111. 304; 58 Am. Dec. 55, overruling Frisby 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 assurance. It is now declared by statute in that State 
 that a quit claim shall not pass an after-acquired title. R. S. 1883, ch. 30, 
 S 10, p. 280. Avery v. Aikins, 74 Ind. 283; Locke v. White, 89 Ind. 492. 
 Sweetser v. Lowell, 33 Me. 452. In Coal Creek Mining Co. v. Ross, 12 Lea 
 (Tenn.), 5, ft was said that if the special warranty 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 provided by statute that a deed of 
 quit claim an'd release shall estop the grantor and his heirs from asserting a 
 subsequently-acquired title. Code, 1889, 1195. Before this statute the rule 
 was as stated in the text. Mitchell v. Woodson, 37 Miss. 578. The reasons 
 for the rule were thus explained in Western Min. & Mfg. Co. v. Peytona Coal 
 Co., 8 W. Va. 449 : " If then, at the time the grantor executes the covenant 
 of special warranty, the title to the land is in a third person, not because 
 of any act of default of the covenantor, and such person afterwards asserts 
 and enforces the title against the covenantee, the covenant is not thereby 
 broken, and the covenantor is not in any way responsible. The covenantee 
 pays nothing for the actual title, but pays only for the claim of the cove- 
 nantor together with the covenant. No duty rests on the covenantor to pro- 
 cure the title for the benefit of the covenantee, 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 to him. Or it may be 
 important to the interest of himself or others, that he should purchase the 
 land, and accordingly he may purchase it. Such a purchase cannot damage 
 
 35
 
 546 MARKETABLE TITLE TO EEAL ESTATE. 
 
 a defect of title not embraced by his covenant. 10 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 ac- 
 quire the very title which he warranted, and hold it against his 
 grantee. 11 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 doc- 
 trine of estoppel to prevent circuity of action. 12 There is no in- 
 justice in preventing the passage of the after-acquired estate to the 
 grantee, where the grantor merely releases whatever present claim 
 or interest he may have, for, presumably, the consideration of the 
 conveyance was commensurate only with that interest. 13 If it 
 should appear that the consideration paid by the grantee was the 
 full value of the estate, that fact might be important in determin- 
 ing whether the intent of the grantor was to convey, not merely 
 such present interest as he may have in the premises, but an estate 
 of a particular description, which would, notwithstanding the ab- 
 sence of covenants for title, estop him from claiming the after- 
 acquired estate. 14 A deed with special or limited covenants for 
 title, will be regarded in the same light as a quit claim, or deed 
 without covenants, so far as its effect, by way of estoppel, is con- 
 cerned. 16 
 
 the covenantee. And there is no reason whatever at all sufficient, why the 
 covenantor should not purchase the land from the owner, and assert his title 
 thereto, or dispose of the land as any other person may do." Another reason 
 is that a quit claim is regarded as a mere release, and " by a release no right 
 passeth but the right which the releasor hath." Co. Litt. p. 265. Jackson v. 
 Winslow, 9 Cow. (N. Y.) 18. 
 
 "Comstock v. Smith, 13 Pick. (Mass.) 116; 23 Am. Dec. 670; Trull v. East- 
 man, 3 Met. (Mass.) 121; 37 Am. Dec. 126. Loomis v. Pingree, 43 Me. 314. 
 Bell v. Twilight, 6 Fost. (N. H.) 401 ;.45 Am. Dec. 357. Tillotson v. Kennedy, 
 5 Ala. 407; 39 Am. Dec. 330. 
 
 " So held in Gibbs v. Thayer, 6 Cush. (Mass.) 30, where the grantor executed 
 a fraudulent conveyance, with special warranty, and afterwards went into 
 insolvency, and purchased back his own title at the assignee's sale. Such a 
 case, the court said, is clearly distinguishable from one in which the grantor 
 purchases in the title of a stranger, as in Comstock v. Smith, supra. 
 
 "Doane v. Willcutt, 5 Gray (Mass.), 334; 66 Am. Dec. 369. 
 
 ' Western Min. & Mfg. Co. v. Peytona Coal Co., 8 W. Va. 449. 
 
 14 Post, this section. 
 
 M Harrison v. Boring, 44 Tex. 255.
 
 ESTOPPEL OF THE OKANTOB. 547 
 
 If the grantor covenant against certain designated claims only, 
 and afterwards acquire the title from a source independent of those 
 having such claims, the estate so acquired will not pass to the 
 grantee. 16 
 
 A release or quit claim passes only such interest as the grantor 
 then has, and does not embrace a bare possibility of a future inter- 
 est. 17 If a contingent remainderman convey the estate by deed with 
 general warranty, the estate which vests upon the happening of the 
 contingency will, of course, enure to the benefit of the grantee. 18 
 But a conveyance of a contingent interest without covenants of 
 title will not operate an estoppel. 19 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 descended to him as 
 against his deed. 20 If the heir conveys not merely his interest in 
 expectancy, but the land itself with covenants of general warranty, 
 he will be estopped. 21 
 
 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 
 
 "Lamb v. Wakefield, 1 Sawy. (U. S.) 251. Here the covenant was against 
 all persons except the government of the United States and those deriving 
 title from that government. The covenantor afterwards acquired title from a 
 donee of the government, and it was held that such title did not enure to the 
 eovenantee. See, also, Lamb v. Kann, 1 Sawy. (U. S.) 338. Quivey v. Baker, 
 37 Cal. 471. Fields v. Squires, Deady (U. S.), 380. Blake v. Tucker, 12 
 Vt. 44. 
 
 "Varick v. Edwards, 1 Hoff. Ch. (N. Y.) 382. 
 
 "4 Kent Com. 261. Read v. Fogg, 60 Me. 479. Hayes v. Tabor, 41 N. H. 
 521. 
 
 "Jackson v. Bradford, 4 Wend. (N. Y.) 619. 
 
 *3 Washb. Real Prop. 94, 95. Jackson v. Winslow, 9 Cow. (N. Y.) 13. 
 Hart v. Gregg, 32 Ohio St. 502. Contra, Bohon v. Bohon, 78 Ky. 408. In Mc- 
 Clure v. Raben, (Ind.) 25 N. E. Rep. 179, it was held that a conveyance of an 
 expectancy by an heir apparent without warranty, the ancestor being still 
 alive but not informed of the transaction, would not estop the heir from hold- 
 ing 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 estopped. Habig v. Dodge, ( Ind. ) 25 N. E. 
 Rep. 182. Johnson v. Branch, 9 S. Dak. 116; 68 N. W. Rep. 173. 
 
 "Ackennan v. Smiley, 37 Tex. 211.
 
 548 MABKETABLE TITLE TO REAL ESTATE. 
 
 possessed of, the after-acquired title will not pass. 22 Of course, the 
 grantor, cannot acquire by estoppel a greater estate than the instru- 
 ment creating the estoppel purports to convey. A warranty cannot 
 enlarge the estate; it attaches only to the estate granted or pur- 
 ported to be granted. If it be a life estate the covenantor warrants 
 nothing more. He cannot be estopped by the deed, or the cove- 
 nants 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. 23 
 
 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 conveyance 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 covenants 
 
 "Hannick v. Patrick, 119 U. S. 156; Brown v. Jackson, 3 Wh. (U. S.) 452. 
 Sanford v. Sanford, 135 Mass. 314; Hoxie v. Finney, 16 Gray (Mass.), 332; 
 Sweet v. Brown, 12 Met. (Mass.) 175; 45 Am. Dec. 243; Wight v. Shaw, 5 
 Cush. (Mass.) 56; Allen v. Holton, 20 Pick. (Mass.) 458. Coe v. Persona 
 Unknown, 43 Me. 436. Shoemaker v. Johnson, 35 Ind. 33 ; Locke v. White, 89 
 Ind. 492; Adams v. Ross, 1 Vr. (N. J. L.) 509; 82 Am. Dec. 237; White v. 
 Brocaw, 14 Ohio St. 339. Wynn v. Harman, 5 Grat. (Va.) 162. Bell v. 
 Twilight, 6 Fost. (N. H.) 411; 45 Am. Dec. 367. Gee v. Moore, 14 Cal. 474; 
 Kimball v. Semple, 25 Cal. 441, 452. Hope v. Stone, 10 Minn. 141, 149. Gibson 
 v. Chonteau, 39 Mo. 536, 567; 100 Am. Dec. 366; Valle v. Clemens, 18 Mo. 
 486; Bogy v. Shoab, 13 Mo. 365. Holbrook v. Debo, 99 111. 372. The rule 
 stated in the text has been extended so far as to defeat the passing of a vested 
 interest to the covenantee which, at the time of the conveyance, was contingent. 
 Thus, in Blanchard v. Brooks, 12 Pick. (Mass.) 47, a person being the devisee 
 of a contingent, and also of a vested remainder, executed a deed with general 
 warranty purporting to convey all his " undivided share or portion, right, 
 title and interest of, in and to " the lands, etc. The court said the grant was 
 of all the grantor's " right, title and interest," and not of the land itself, or 
 of any particular estate in the land. " The grant in legal effect operated only 
 to pass the vested interest, and not the contingent interest, and the warranty 
 being co-extensive with the grant, did not extend to the contingent interest, 
 and of course, did not operate upon it by way of estoppel." A lik decision 
 upon a similar state of facts was made in Hall v. Chaffee, 14 N. H. 215, 225. 
 
 23 2 Co. Litt. 385, b. Adams v. Ross, 1 Vr. (N. J.) 505; 82 Am. Dec. 237.
 
 ESTOPPEL OF THE GRANTOR. 549 
 
 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 cove- 
 nants 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 distinguished from a 
 quit claim or release, the after-acquired title will pass to the 
 grantee, though the deed contains no formal covenants for title. 24 
 
 24 Ante, 217. Bigelow Estoppel (3d ed.), 333; Rawle Cojvt. (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 N. 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; Scates v. Fohn, (Tex. Civ. App.) 59 S. W. Rep. 837; 
 Garrett v. McLain, 18 Tex. Civ. App. 245; 44 S. W. Rep. 47. Van Rensselaer 
 v. Kearney, supra, is a leading case upon this point. It distinguishes between 
 a quite claim or release, and a deed without covenants 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 be 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- 
 vey; 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 the 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 al- 
 though it debars the truth in the particular case, and, therefore, is not 
 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
 
 550 MARKETABLE TITLE TO REAL ESTATE. 
 
 r lt has been held that the fact that an instrument 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. 25 
 
 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 described, 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 claiming 
 under him will be estopped to deny that fact and to hold the after- 
 acquired title. 26 In Maine it has been held that the covenant of 
 " non-claim " will not operate an estoppel, for the reason that such 
 a covenant amounts to no more than a mere quit claim. 27 A con- 
 trary view has been taken in Massachusetts. 28 
 
 expended their money." In Nixon v. Carco, 28 Miss. 414, 426, the 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, declare that I, John Baptiste Carco, have sold to 
 Messrs. Francis Bouquie and Anthony Martin my plantation and two cabina 
 situate thereon, together with the enclosure and all the rails. (Here follows 
 a description of the property and recital of the consideration.) 
 
 " (Signed.) JEROME BAPTISTE CARCO." 
 
 In Thomas v. Stickle, 32 Iowa, 72, it was held that a quit claim of all the 
 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. 
 
 * Harrison v. Boring, 44 Tex. 255. If the consideration of the 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, and that, therefore, an estate 
 of a particular description was intended to be conveyed ; this upon the ground 
 that parol evidence is, as a general rule, admissible to show the consideration 
 of an instrument as between the parties. 
 
 "Jackson v. Waldron, 13 Wend. (N. Y.) 178. 
 
 "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; Loomis v. Pingree, 43 Me. 314; Harriman v. Gray, 49 Me. 538; 
 Read v. Fogg, 60 Me. 479. 
 
 "Trull v. Eastman, 3 Met. (Mass.) 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
 
 ESTOPPEL OF THE GRANTOR. 551 
 
 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 pur- 
 chasing 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 purchase and its con- 
 summation 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. 29 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 con- 
 summated by a conveyance from the original grantor. 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. 30 
 
 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 guardian, 
 it has been held that such title will not enure to the benefit of the 
 purchaser. 31 Nor will a title acquired by an execution debtor after 
 sale by the plaintiff enure to the benefit of the purchaser at such 
 sale. 32 
 
 include future interests, while a covenant of non-claim, i. e., that neither the 
 grantor nor his heirs will thereafter claim the premises, expressly contem- 
 plates the after-acquired estate. Miller v. Ewing, 6 Cush. (Mass.) 34. 
 
 58 Welsh v. Button, 79 111. 465. Irvine v. Irvine, 9 Wall. (U. S.) 618. 
 
 Garlick v. Railway Co., 67 Ohio St. 223 ; 65 N. E. Rep. 896. 
 
 "Young v. Lorain, 11 111. 624; 52 Am. Dec. 463. 
 
 "Henderson v. Overton, 9. Yerg. (Tenn.) 393; 24 Am. Dec. 492. McArthur 
 v. Oliver, 60 Mich. 605. Gentry v. Callahan, 98 N. C. 448. Westheimer v. 
 Reed, 15 Neb. 662.
 
 552 MARKETABLE TITLE TO REAL, ESTATE. 
 
 219. ESTOPPEL OF GBAJTTZE. 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 claiming 
 under him. 33 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 New York by several early decisions, 34 but they were 
 afterwards overruled, 35 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. 36 If, however, the 
 real title be already in the grantee, he will be estopped from suing 
 on the covenants of his grantor by his acceptance of the grant 37 
 But while the grantee is not estopped to deny the title of the 
 grantor by way of defense to an action for the purchase money, he 
 is estopped in another sense, namely, that he cannot acquire the 
 adverse title and set it up adversely to the 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. 38 The rule 
 that the purchaser is estoppped to deny his vendor's title has been 
 held not to apply where the vendor undertook to sell a part of the 
 public domain to which he had no title. In such a case the pur- 
 chaser, on ascertaining 4he vendor's want of title, may himself 
 preempt the land and claim adversely thereunder to his vendor. 39 
 Neither does the rule apply where the vendee was induced to pur- 
 
 " Co. Litt. 352, a. 
 
 Bowne v. Potter, 17 Wend. (N. Y.) 164; Sherwood v. Vendenburgh, 2 
 Hill (N. Y.), 307; Osterhout v. Shoemaker, 3 Hill (N. Y.), 518. 
 
 *Averill v. Wilson, 4 Barb. (N. Y.) 180; Sparrow v. Kingman, 12 Barb. 
 (N. Y.) 208; 1 Const. (N. Y.) 245; Finn v. Sleight, 8 Barb. (N. Y.) 406. 
 
 "Gaunt T. Wainman, 3 Bing. N. Cas. 69. Small v. Proctor, 15 Mass. 495; 
 Porter v. Sullivan, 7 Gray (Mass.), 441; Craig v. Lewis, 110 Mass. 377. 
 Fox v. Widgery, 4 Gr. (Me.) 218; Foster v. Dwinel, 49 Me. 44; McLeery T. 
 McLeery, 65" Me. 173. Cutter v. Waddingham, 33 Mo. 282. Patterson T. 
 Dwinel, 113 HI. 570. Clee v. Seaman, 21 Mich. 287. 
 
 w Fitch v. Baldwin, 17 Johns. (N. Y.) 166. Beebe v. Swartwout, 3 Gil. 
 (HL) 179. 
 
 "Ante, f 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, f 279. 
 
 Spier v. Laman, 27 Tex. 205 ; Wheeler v. Styles, 28 Tex. 240. For quali- 
 fications of this doctrine see ante, | 168, 202.
 
 ESTOPPEL OF THE OBANTOE. 553 
 
 chase by reason of the fraudulent representation of the vendor. 40 
 Nor where the purchaser has been actually or constructively 
 evicted. 41 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. And if the purchaser rejects title and pos- 
 session from the vendor, and takes possession under what he sup- 
 poses is the better title, he may set up such title in defense of an 
 action of ejectment by the vendor. 42 
 
 220. RESUME OF PBINCIPLES. 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 principle 
 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 
 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. 43 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 
 
 44 Patterson v. Fisher, 8 Blackf. (Ind.) 237. 
 
 "Thus, in Beall v. Davenport, 48 Ga. 165; 15 Am. Rep. 656, it was held 
 f 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 (the purchaser) had attorned to such 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. 
 
 "Nerhooth v. Althouse, 8 Watts (Pa.), 427; 34 Am. Dec. 480. 
 
 41 Covenants for Title (5th ed.), 2(54.
 
 554 
 
 MARKETABLE TITLE TO REAL ESTATE. 
 
 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 at- 
 tempt has been made to show that upon reason and authority the 
 covenantee must take the after-acquired title, not in lieu of dam- 
 ages, for there can be no substantial damages when the covenantee 
 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. 44 
 
 " Ante, 215.
 
 CHAPTER XXII. 
 
 REFORMATION OF THE CONVEYANCE. 
 
 WHEN GRANTED AND WHEN 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, fail 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 
 
 *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. 
 
 'Post, ch. 35, Fraud and Mistake.
 
 556 MARKETABLE TITLE TO REAL ESTATE. 
 
 original deed, and effectuate the true intent of the original parties. 3 
 This, after all, is no more than specific performance of the con- 
 tract; the court goes back of the conveyance and ascertaining 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 gen- 
 eral rule that a bill will not lie to reform a deed unless a new deed, 
 correcting the error or mistake complained of, has been prepared 
 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 previous request in pais to correct the error. 8 No 
 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 incompetent to exe- 
 cute the deed, nor, generally, wherever a tender of a corrected deed 
 would be vain and useless. 9 Neither does the rule apply in a suit 
 to foreclose a mortgage 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 by foreclosure. 10 If, 
 upon request, a party or privy to the deed refuses to correct a mis- 
 
 ' See, generally, the cases and authorities cited throughout this chapter. 
 
 'Dickinson v. Glenneg, 27 Conn. 104. Adams v. Reed, (Utah) 40 Pac. Rep. 
 720, diet. Hoffman v. Kirby, 136 Cal. 26; 68 Pac. Rep. 321. 
 
 Welshbillig v. Drenhart, 65 Ind. 94. 
 Lavender v. Lee, 14 Ala. 688. 
 
 7 Long v. Brown, 4 Ala. 622; Beck v. Simmons, 7 Ala. 71; Lamkin v. Reese, 
 7 Ala. 170; Black v. Stone, 33 Ala. 327. Heck v. Remka, 47 Md. 68. Jen- 
 nings v. Brizendine, 44 Mo. 332. 
 
 1 Robbins v. Battle House Co., 74 Ala. 499. 
 
 Robbins v. Battle House Co., 74 Ala. 499. 
 
 10 Axtel v. Chase, 83 Ind. 546.
 
 REFOBMATION OF THE CONVEYANCE. 557 
 
 take therein by the execution of a new deed or release or quit 
 claim, costs should be awarded against him. 11 So, also, if he per- 
 tinaciously 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. 14 
 
 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. 
 
 u Dod v. Paul, 43 N. J. Eq. 302. 
 
 "Gamble v. Daugherty, 71 Mo. 599. 
 
 u Coe v. N. J. Mid. R. Co., 31 N. J. Eq. 105. 
 
 "Adams Eq. (5th Am. ed.) 345 (171); Pom. Eq. Jur. { 867. Noell v. 
 Gill, 84 Ky. 241; 1 S. W. Rep. 428. Conaway v. Gore, 24 Kans. 389, the 
 court, by BBEWEB, 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 these authori- 
 ties run along the line of the doctrine of specific performance, while the case 
 at bar comes under the head of reformation of contracts. The difference be- 
 tween the two is marked and substantial. One aims to enforce a parol con- 
 tract 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 contract, 
 but it is the making of the writing the expression of the real contract." 
 
 "Morrison v. Collier, 79 Ind. 417.
 
 558 MARKETABLE TITLE TO REAL ESTATE. 
 
 premises, and 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 trustee 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 cor- 
 rected, 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 con- 
 tract 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; 22 as where the 
 
 "Coleman v. Coleman, Phil. Eq. (N. C.) 43. 
 
 "Thompson v. Marshall, 36 Ala. 504; 76 Am. Dec. 328. 
 
 "Broadway v. Buxton, 43 Conn. 282. 
 
 * Connor v. Wells, 91 Ind. 197. 
 
 "Hiatt v. Callaway, 7 B. Mon. (Ky.) 178. 
 
 "Parham v. Parham, 6 Humph. (Tenn.) 287. Perkins v. Dickinson, 3 
 Grat. (Va.) 335. In Kirk v. Zell, 1 McArth. (D. C.) 116, a mistake of the 
 draftsman in conveying the whole estate to the grantee instead of one moiety, 
 and the other moiety to another, was corrected. I So, where the draftsman 
 
 "v
 
 REFORMATION OF THE CONVEYANCE. 559 
 
 scrivener omits from the deed some provision upon which the 
 parties have agreed, 23 or employs language insufficient to effectu- 
 ate 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. 26 In this respect convey- 
 
 inserted the name of the wrong person as grantee. Bohanan v. Bohanan, 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- 
 poole v. Houston, 12 Kans. 324. 
 
 M Athey v. McHenry, 6 B. Mon. (Ky.) 50. Bouldin v. Wood, 96 Md. 332; 
 63 Atl. Rep. 911; Hebler v. Brown, 41 N. Y. Supp. 441. 
 
 "Adams Eq. (5th Am. ed.) 343 (169). 
 
 "Adams Eq. (5th Am. ed.) 339 (168). Moore v. Munn, 69 111. 591; 
 Briegel v. Muller, 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. 83. Here a deed founded upon the erroneous com- 
 putations of a surveyor was reformed. In First Nat. Bank v. Gough, 61 
 Ind. 147, it was said 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. 908. 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 be 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. Webb, 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. 500; 
 24 N. W. Rep. 301. Kellogg v. Chapman, 30 Fed. Rep. 882. Sowler v. Day, 
 58 Iowa, 252; 12 N. W. Rep. 297; Roberts v. Taliaferro, 7 Iowa, 110. Hile- 
 man v. Wright, 9 Ind. 126.
 
 560 
 
 MARKETABLE TITLE TO BEAL 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. 26 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. 29 If by mistake covenants of warranty to which a pur- 
 chaser is entitled, be omitted from his deed, equity will cause 
 them to be inserted. But the mere fact that the title turns out 
 to be bad will not justify a court of equity in reforming a con- 
 veyance without warranty, so as to include a covenant of general 
 warranty, when the purchaser 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 repre- 
 sents the understanding of the parties, it will not be reformed 
 merely because one of the parties might have exacted a different 
 instrument, if he had known of facts making it desirable for him 
 to do so. 30 
 
 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 
 
 "Adams Eq. (5th Am. ed.) 345 (172). 
 
 27 Campbell v. Johnson, 44 Mo. 247 ; Jennings v. Brizendine, 44 Mo. 332. 
 
 M Robbins v. Mayer, 76 Ind. 381. 
 
 19 Andrew v. Spurr, 8 Allen (Mass.), 412. In this case the original con- 
 tract, which was oral, reserved to the grantor the rights to cut and remove 
 certain timber from the premises. After the deed was executed the purchaser 
 repudiated this reservation. 
 
 "Whittemore v. Farrington, 76 N. Y. 452.
 
 REFORMATION OF THE CONVEYANCE. 561 
 
 a conveyance as the grantee might have insisted upon in the first 
 instance; 31 for example, where the purchaser ignorantly accepts a 
 deed executed by an attorney in fact in his own name instead of 
 lliat of the principal. 32 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. 33 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. 34 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. 35 Where it 
 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 
 
 11 Burt v. Wilson, 28 Cal. 632 ; 87 Am. Dec. 142. Bradford v. Bradford, 54 
 N. H. 463. 
 
 "Personneau v. Blakely, 14 111. 15. 
 
 88 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 to show that the con- 
 sideration thereof was her separate statutory estate, consisting of money 
 inherited from her father, and thereby 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. 426; Barnes 
 v. Bartlett, 47 Ind. 98; Nicholson v. Caress, 59 Ind. 39; Easter v. Severin, 
 78 Ind. 540. 
 
 "Gale v. Morris, 29 N. J. Eq. 222; Warner v. Sisson, 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; Wyche 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, 13 Gray (Mass.), 373. Crum v. Loud, 23 Iowa, 219; Now- 
 lin 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 Mel. 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 
 reformed on the ground of a mistake of the parties in supposing that it was 
 sufficient to create in the grantee such an estate as would be free from lia- 
 bility for the debts of her husband. 
 
 36
 
 562 MARKETABLE TITLE TO REAL ESTATE. 
 
 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. 36 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 
 complete the contract had, from mistake or ignorance of law in the 
 selection and prepartion 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 
 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 or insertion that, it is clear, would be a mistake of fact. 37 
 
 "Kornegay v. Everett, 99 N. C. 30; 5 S. E. Rep. 418. Benson v. Markol, 
 (Minn.) 36 Alb. L. J. 44. 
 
 " Adams Eq. (oth Am. ed.) 342 (169). A mistake in the description of 
 land intended to be conveyed is a rristake of fact and not of law. McCasland 
 v. Life Ins. Co., 108 Ind. 130; 9 W. E. Rep. 119.
 
 BEFOBMATION OF THE CONVEYANCE. 563 
 
 On the other hand, if the parties should debate as to whether 
 certain matters should be inserted in or omitted from the deed, 
 and should err in their conclusions, that would plainly be a mis- 
 take of law. 38 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. 39 There is, therefore, 
 it would appear, a disposition to bring within the rule prohibiting 
 
 "Adams Eq. (5th Am. ed.) 344 (170). In other words, if it appear that 
 the instrument contained the precise language the parties intended to should 
 contain, the mistake, if any, is a mistake of law. Easter v. Severin, 78 Ind. 
 540. 
 
 89 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. Smith, 1 Busb. Eq. (N. C.) 283. Wright v. 
 Dclafield, 23 Barb. (N. Y.) 498. Wanner v. Sisson, 29 N. J. Eq. 141; Coe v. 
 N. J. Midland R. Co., 31 N. J. Eq. 28. But see 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; but if they 
 are not ignorant of the omission, and look upon the deed as sufficient to carry 
 an estate of inheritance, that is a mistake of law. In such a case, if the 
 pleadings do not aver the ignorance of the parties of the omission from the 
 deed, the complainant will not be entitled to relief. If a deed be imperfectly 
 executed, it will be reformed at the suit of the grantee. Sumner v. Rhodes, 
 14 Conn. 135; Smith v. Chapman, 4 Conn. 344. As where it lacks a seal: 
 Michel v. Tinsley, 69 Mo. 442; Mastin v. Holley, 61 Mo. 196. Galbraith v. 
 Dilday, 152 111. 207; 38 N. E. Rep. 572. Or omits the name of the grantee: 
 Parlin v. Stone, 1 McCrary (C. C.), 443. Courtright v. Courtright, 63 Iowa, 
 356; 19 N. W. Rep. 255; Nowlin v. Pyne, 47 Iowa, 293. Stowell v. Haslett, 
 5 Lans. (N. Y.) 380. So, also, where the signature of the grantor is lacking. 
 Martin v. Nixon, 92 Mo. 26. Mere clerical errors, such as inconsistent 
 dates, may always be corrected. Moore v. Wingate, 53 Mo. 398. If a con- 
 veyance be defectively executed by one acting under a power, as where it 
 purports to be the act of the attorney and not of the principal, it will be 
 reformed so as to operate as the deed of the principal. Willard Eq. Jur. 83. 
 Gerdes v. Moody, 41 Cal. 335.
 
 564 MARKETABLE TITLE TO REAL ESTATE. 
 
 the reformation of deeds in cases of mistake of law only cases in 
 which the error is of an affirmative kind, that is, those in which 
 the attention of the parties must necessarily have been drawn to 
 the question of the sufficiency of the instrument or some of its 
 provisions, and they have erred in their conclusions. 40 
 
 224. Mutuality of mistake. Fraud. As a general rule, there 
 can be no reformation of a deed on the ground of mistake unless 
 the complainant shows that the mistake was mutual. 41 And one 
 who seeks to rectify an instrument on the ground of mistake must 
 be able to prove not only that there has been a mistake, but must 
 be able to show exactly the form to which the deed ought to be 
 brought in order that it can be set right according to what was 
 really intended by the parties; 42 and must be able to establish in 
 the most clear and satisfactory manner, that the alleged intention 
 of the parties to which he desires to make the instrument con- 
 formable continued concurrently in the minds of all parties down 
 to the time of its execution. 43 Of course a court of equity has no 
 jurisdiction to reform a deed simply on the ground that one of the 
 parties thereto has erred in its construction ; there being no aver- 
 ment or proof of fraud, accident or mistake. 44 " The proposition 
 which lies at the foundation of all suits to reform is, that the court 
 cannot make such a contract as it thinks the parties ought to have 
 
 * An illustration of this class of cases may be found in the case of Oswald 
 v. Sproehule, 16 111. App. 368. The difficulty here was that a clause, by 
 which the purchaser was exempted from liability from certain immature taxes 
 and assessments on the granted premises, was not broad enough to include 
 a certain other assessment.. This was held a mistake in the purchaser's con- 
 struction of the deed, and one against which the court could not relieve. 
 
 "Adams Eq. (5th Am. ed.) 344 (171). Grubb's Appeal, 90 Pa. St. 228. 
 Remillard v. Prescott, 8 Oreg. 37; McCoy v. Bayley, 8 Oreg. 196. Long 
 delay of a party in taking advantage of the mistake *is a strong circumstance 
 to establish the mutuality of the mistake; as where the grantee delayed 
 action for ten years to recover for a breach of the covenant against incum- 
 brances, the defense being that it was mutually understood between the 
 parties that the existence of a railroad right of way across the premises 
 should be excluded from the operation of the covenant. Fierce v. Houghton, 
 (Iowa) 98 N. W. Eep. 306. 
 
 **Kerr Fraud & Mistake (Am. ed.), 421. Guilmartin v. Urquehart, 82 
 Ala. 570; 1 So. Rep. 897. Silbar v. Ryder, 63 Wis. 106; 23 N. W. Rep. 106. 
 
 "Language of the court in Ranney v. Smith, 32 N. J. Eq. 28, citing Kerr 
 F. & M. (Am. ed.) 421. 
 
 "Grubb's Appeal. 90 Pa. St. 228.
 
 REFORMATION OF THE CONVEYANCE. 565 
 
 made, or would have made if better informed, but merely makes 
 it what the parties intended it should be. Every reformation of 
 a contract by the court necessarily presupposes that there has been 
 a meeting of the minds of the parties an agreement actually 
 entered into but for some cause they have failed fully or accu- 
 rately to express it in the writing." 45 A mistake of one party only 
 may be ground for rescinding or refusing specific performance of 
 the contract, but cannot justify an alteration of the terms of the 
 agreement, which, in such a case, would necessarily result from 
 a reformation of the conveyance. 46 The mistake must not only 
 have been mutual, but the pleadings must allege it to have been 
 so. Therefore, if neither the bill nor the accompanying affidavits 
 contain such an allegation, the complainant will not be entitled to 
 relief. 47 
 
 The rule that a mistake must be mutual to entitle the grantee 
 to relief does not mean that the mistake must be mutual in all 
 cases between the grantor and the grantee; it suffices if the mis- 
 take is mutual between the grantee and other persons having in- 
 terests under the deed, the grantor being a mere nominal party. 48 
 Nor does the rule apply where the party against whom relief is 
 sought fraudulently permitted the other party to act in ignorance 
 
 f 
 
 45 St. Anthony's Falls W. P. Co. v. Merriman, 35 Minn. 42 ; 27 N. W. Rep. 
 199. Here the deed conveyed a water power of " fifty cubic feet per second," 
 and the plaintiff contended that both parties being mistaken in the belief 
 that the amount specified was sufficient to operate the machinery of a cer- 
 tain mill, he was entitled to have the deed reformed so as to convey a water 
 power adequate for that purpose. This contention was denied upon the 
 grounds stated in the text. 
 
 "Adams Eq. (5th Am. ed.) 344 (171). 
 
 47 Schoonover v. Dougherty, 65 Ind. 463. Ramsey v. Smith, 32 N. J. Eq. 28. 
 
 48 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) 
 should procure a conveyance of the property to Sells' wife and child, but 
 Rondeau, through ignorance, inadvertence or mistake, procured a conveyance 
 from Orme to Sells' wife alone, omitting the child. Here there was no mis- 
 take on the part of the grantor, Orme, for the deed was executed by him in 
 strict pursuance of the directions he had received ; but there being a mistake 
 as between Rondeau and the other parties in interest, the deed was reformed 
 so as to express their true intent.
 
 566 MARKETABLE TITLE TO REAL ESTATE. 
 
 of the mistake. 49 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. 50 Nor 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. 51 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. 52 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 it, unless it appear that fraud was practiced upon 
 the complainant by one occupying a relation of confidence toward 
 him. 53 
 
 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, 
 but of their carelessness and negligence in not procuring a correct 
 description before executing the deed, the policy of the law being 
 to administer relief to the vigilant, and to put all the parties upon 
 the exercise of a reasonable degree of diligence. 54 But the same 
 
 "Dane v. Berber, 28 Wis. 216; James v. Cutler, 54 Wis. 172; 10 N. W. 
 Hep. 147. De Jarnatt v. Cooper, 59 Cal. 703. Withouse v. Schaack, 57 How. 
 Pr. (N. Y.) 310. Winans v. Huyck, 71 Iowa, 459; 32 N. W. Rep. 422. Ber- 
 gen v. Ebey, 88 111. 269. Here, after instructions had been given the drafts- 
 men by the parties, the grantor went to him and gave him other instructions. 
 
 M Roszell v. Roszell, 109 Ind. 354; 10 N. E. Rep. 114. 
 
 81 Hitchins v. Pettingill, 58 N. H. 3. Monroe v. Skelton, 36 Ind. 302. 
 
 52 Savings Inst. v. Burdick, 20 Hun (N. Y.), 104. See, also, Wells v. Yates, 
 44 N. Y. 525; Botsford v. McLean, 45 Barb. (N. Y.) 478; Rider v. Powell, 28 
 N. Y. 310. 
 
 "Michael v. Michael, 4 Ired. Eq. (N. C.) 349. 
 
 "1 Story Eq. Jur. 146. First Nat. Bank v. Gough, 61 Ind. 147; Toops 
 v. Snyder, 70 Ind. 534. Unless confidence is reposed, a party, before signing 
 a deed, is put upon inquiry, and must exercise proper and reasonable dili- 
 gence. Withouse v. Schaack, 57 How. Pr. (N. Y.) 310. Where the parties 
 failed to insert the number of the square in which the premises were sit-
 
 EJSJFOBMATION OF THE CONVEYANCE. 567 
 
 court has held that this rule does not apply in its fullest sense to 
 the correction of mistakes merely in the description of the prem- 
 ises. 85 It is plain that a rigid enforcement of such a rule would 
 result in a denial of relief in a great many cases of mistake, for 
 most mistakes in deeds are traceable to the negligence of the 
 parties, certainly those that are visible upon the face of the instru- 
 ment, such as the omission of the name of the grantee and the like. 
 A court might well hesitate to rescind an executed contract where 
 the mistake complained of was the consequence of the complain- 
 ant's negligence, but there seems to be no very strong reason why 
 reformation of a deed should be denied under those circumstances, 
 since that is doing only what the parties themselves intended to 
 do. Therefore, it has been held that a person who accepts a deed, 
 ignorant that it contains a provision which obliges him to assume 
 the payment of a mortgage on the premises, is not guilty of sucb 
 negligence as will preclude him from relief. 56 
 
 226. Nature and degree of evidence required. In many in- 
 stances mistakes in conveyances will be admitted by the parties, 
 or will appear upon the face of the instrument itself. No diffi- 
 culty arises in such cases. 57 But if the defendant deny the 
 existence of any mistake, and the alleged mistake does not appear 
 upon the face of the conveyance itself or of the documents coii- 
 nected therewith, much difficulty may arise in the proof, in view 
 of the presumption of law that the conveyance is the last expres- 
 sion of the intention of the parties, and of the rule which forbids 
 the introduction of parol testimony of any contemporaneous agree- 
 ment or understanding inconsistent with the conveyance. Parol 
 
 uated, not from accident or mistake, but from mere want of recollection, 
 it was held that the deed could not be reformed, though the grantee might 
 compel specific performance. Leonard v. Mills, 24 Kans. 231. But inasmuch 
 as the result would be the same in either case, it is not easy to perceive why 
 the deed should not have been reformed to prevent circuity of action. 
 
 "Elliott v. Sackett, 108 U. S. 132. Morrison v. Collier, 79 Ind. 417. 
 
 "Schaatz v. Keener, 87 Ind. 258. Silbar v. Ryder, 63 Wis. 106; 23 N. W. 
 Rep. 106. 
 
 "If the truth of the bill be admitted by demurrer, and the allegations 
 showing a mistake be clear and positive, the complainant will be entitled to 
 a decree. Moore v. Munn, 69 111. 591.
 
 568 MARKETABLE TITLE TO EEAL ESTATE. 
 
 testimony, however, is always admissible to show a mistake; 58 the 
 difficulty lies in distinguishing between mistake proper and such 
 matters as are the result of mistake or afterthought on one side 
 only. If the mistake appear on the face of the deed it may, of 
 course, be corrected without the aid of extrinsic evidence. 59 Thus, 
 in one case, the court went so far as to insert a granting clause 
 in an instrument alleged to have been intended as a deed, but 
 which, except for the presence of words of warranty, would have 
 been clearly no more than an executory contract for the sale of 
 lands. 60 But if evidence aliunde is relied upon to show a mistake 
 it must be in the highest degree clear, positive and satisfactory. 61 
 The burden devolves upon the complainant to show, beyond a 
 reasonable doubt, the existence of a mistake. 62 
 
 The mere fact that a deed made in pursuance of an executory 
 contract for the sale of lands, conveys a lesser or a greater estate 
 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. 63 
 
 "Bush v. Hicks, 2 Thomp. & C. (N. Y.) 356. Farley v. Bryant, 32 Me. 
 474. Wagenblast v. Washburn, 12 Cal. 208. In a suit to reform a deed, evi- 
 dence of declarations of the grantor contemporaneous with the execution of 
 the deed, is admissible to show what he intended to convey. Cake v. Peet, 
 49 Conn. 501. 
 
 89 Wagenblast v. Washburn, 12 Cal. 208. Creighton v. Pringle, 3 S. C. 77. 
 Here the deed was reformed by substituting the word " hereinbefore " for 
 " hereafter," the context showing that the former word was intended. 
 
 "Michael v. Tinsley, 69 Mo. 442. 
 
 "Story Eq. Jur. 152; Adams Eq. (5th Am. ed.) 345 (171). Sawyer v. 
 Hovey, 3 Allen (Mass.), 331; 81 Awi. Dec. 659. Nicoll v. Mason, 49 111. 358; 
 Hamlon v. Sullivant, 11 111. App. 423. Wells v. Ogden, 30 Wis. 637. Bates 
 v. Bates, 56 Mich. 405; 23 N. W. Rep. 63. Jarrett v. Jarrett, 27 W. Va. 
 743. Strayn v. Stone, 47 Iowa, 333. The evidence of mistake must be 
 such as will overcome the strong presumption in favor of written instru- 
 ments. Remillard v. Prescott, 8 Oreg. 37. 
 
 82 Miller v. Rhuman, 62 Ga. 332. Willis v. Sanders, 51 N. Y. Super. Ct. 
 384. McTucker v. Taggart, 29 Iowa, 478. St. Anthony's Falls Water Power 
 Co. v. Merriman, 35 Minn. 42; 27 N. W. Rep. 199. 
 
 "Whitney v. Smith, 33 Minn. 124; 22 N. W. Rep. 181. Dunham v. New 
 Britain, 55 Conn. 378.
 
 REFORMATION OF THE CONVEYANCE. 569 
 
 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. 64 The reason is that delay in such cases increases 
 the difficulty of placing the parties in statu quo, or may a...*ect the 
 rights of third parties. There has been a disposition in some cases 
 to extend this rule to suits for the reformation of deeds, 65 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. 66 Nor in any event will laches be im- 
 puted to the complainant until after discovery of the mistake. 67 
 Nor where it appears that the complainant has made repeated 
 efforts to have the mistake corrected without a law suit. 68 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, 
 and it was held that he was not precluded from relief by the 
 delay. 69 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 
 
 "Willard Eq. Jur. 69; Story Eq. Jur. 1520. 
 
 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. 
 
 "Canedy v. Marcy, 13 Gray (Mass.), 373. Mills v. Lockwood, 42 111. 111. 
 First Nat. Bank v. Wentworth, 28 Kans. 183. Kirk v. Zell, 1 McArthur (D. 
 C.), 116. In Farley v. Bryant, 32 Me. 474, it was said that lapse of time 
 would be immaterial to the right of reformation, if the premises were unim- 
 proved lands. 
 
 " Stone v. Hale, 17 Ala. 557; 52 Am. Dec. 185. 
 
 "Thompson v. Marshall, 36 Ala. 504; 76 Am. Dec. 328. 
 
 * Farmers & Mech. Bank v. Detroit, 12 Mich. 445.
 
 570 MARKETABLE TITLE TO EEAL ESTATE. 
 
 make nugatory the legislative enactment. 70 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. 71 
 
 229. IN FAVOR OF AND AGAINST WHOM BELIEF MAY BE 
 HAT). 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. 72 To maintain 
 the action the complainant must be either a party or a privy to the 
 deed. 73 Suits for the reformation of conveyances on the ground of 
 mistake have been frequently brought by remote assignees of the 
 original grantee. 74 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 be to give to the plaintiff land 
 which the court had not Directed to be sold. 75 !N"or can a grantee, 
 
 70 1 Story Eq. Jur. 117. See infra, this chapter, 233, "Married 
 Women." 
 
 71 Houx v. Bates County, 61 Mo. 391. 
 
 71 See, generally, cases cited below. Pomeroy Eq. Juris. 845, 870, 1376. 
 Mills v. Lock-wood, 42 111. 112. 
 
 "Story Eq. Jur. 165. Willis v. Sanders, 51 N. Y. Sup. Ct. 380, where 
 it was also held that the mere fact that a person is a grantee of one to 
 whom a deed was made does not necessarily so connect him with the contract 
 as tb entitle him to maintain F suit to reform the deed. 
 
 The complainant should not r.eglect to aver and prove that he holds under 
 the deed which he seeks to reform. In Ballentine v. Clark, 38 Mich. 395, the 
 court said: "The testimony entirely fails to trace title into complainant; 
 nml. as this is essential to his recovery, he must fail on this record. None 
 of the deeds in the chain of title appear. It sterns to have been taken for 
 granted that the only proof required was the identification of the premises 
 described in the bill. But unless complainant shows that he holds under the 
 deed sought to be reformed he makes no showing of equities." 
 
 74 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 Cal. 335. Blackburn v. Randolph, 33 
 Ark. 119. In May v. Adams, 58 Vt. 74; 3 At). Rep. J87. the suit was be- 
 tween grantees of the original grantor and grantee respectively 
 
 "Rogers v. Abbott, 37 Ind. 138. No authorities were cited to this propfr 
 sition, and the grounds upon which it rests are by no means clear. Land h%*
 
 REFORMATION OF THE CONVEYANCE. 571 
 
 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. 76 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 
 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. 77 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 
 
 been erroneously described by Conley in his deed to Abbott as the S. E. 
 instead of the N. 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 lands is carried into the decree of 
 foreclosure it may be corrected by reforming and reforeclosing the mortgage. 
 McCashland 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. Rep. 424, a deed under a judicial sale was reformed at the 
 instance of a remote grantee. In Martin v. Dollar, 32 Ala. 422, it was held 
 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, 6 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. 
 
 "McFadden v. Rogers, 70 Mo. 421. Conaway v. Gore, 21 Kans. 725. 
 
 "Bush v. Hicks, 60 N. Y. 298. Fuchs v. Treat, 41 Wis. 404. Damm v. 
 Moors, 48 Mich. 510. Wilcox v. Lucas, 121 Mass. 21. Hutson v. Fumas, 31 
 Iowa, 154. Burr v. Hutchinson, 61 Me. 514. Pugh v. Brittain, 2 Dev. Eq. 
 (N. C.) 34. Cooke v. Husband, 11 Md. 492. Where lands not sold under a 
 decree are by mistake reported as sold, and a deed of the same is made by 
 the court, such deed will be reformed, as against the grantor or his heirs. 
 Stiles v. Winder, 35 Ohio St. 555.
 
 572 MARKETABLE TITLE TO REAL ESTATE. 
 
 proferentem; the words of a deed shall be taken most strongly 
 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. 78 Nor will 
 the court reform a deed, absolute on its face, by inserting a con- 
 dition therein, at the suit of the grantor. 79 Nor 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. 80 Nor where he insists upon the payment of the purchase 
 money while seeking relief on the ground of the mistake. 81 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. 82 
 
 Against whom reformation will be decreed. A deed will be re- 
 formed in a case of mistake, not only as against the original 
 grantee, but as against all who claim under, or are in privity with 
 him, such as heirs, devisees, voluntary grantees, judgment cred- 
 itors and purchasers with notice of the mistake. 83 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. 84 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 
 
 w Lewis v. Lewis, 5 Oreg. 169. 
 
 79 Clark v. Drake, 3 Pinney (Wis.), 228; Law v. Hyde, 39 Wis. 345; Mills 
 v. Seminary, 47 Wis. 354; 2 N. W. Rep. 550. Here the grantor desired to 
 reform the deed by inserting in it a provision that the deed should be void 
 if the premises should cease to be used as a site for a seminary. 
 
 80 Wittbecker v. Watters, 69 Tex. 470; 6 S. W. Rep. 788. 
 
 81 Dorr v. Steichen, 18 Minn. 26. 
 
 ** Fly v. Brooks, 64 Ind. 50. But see Baker v. Massey, 50 Iowa, 399, where 
 it was held that if the deed embrace an interest of which the grantor was 
 ignorant, he will be entitled to reformation. 
 
 83 Adams Eq. (5th Am. ed.) 340 (169), n. Grayson v. Weddle, 80 Mo. 39. 
 
 84 Goodman v. Randall, 44 Conn. 321. Bullock v. Whipp, 15 R, I. 195; 2 
 Atl. Rep. 309, obiter.
 
 BEFOKMATION OF THE CONVEYANCE. 573 
 
 his interests are in no way affected, and the court may appoint 
 a commissioner to execute the reformed deed. 85 A remote grantee 
 who holds under a deed without warranty, need not make his 
 immediate grantor a party to his suit for reformation. 86 If, how- 
 ever, the plaintiff holds under mesne conveyances with warranty, 
 it has been held that he must make the grantees parties. 87 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. 88 
 
 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. 89 Neither could such a deed be reformed as against 
 judgment creditors of the vendor, in those States in which 
 judgment creditors are protected by the registry acts. 90 But as 
 against a subsequent purchaser, and, it is apprehended, a creditor 
 
 85 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. 
 
 "Farmers & Mech. Bank v. Detroit, 12 Mich. 445. 
 
 "Davis v. Rogers, 33 Me. 222. 
 
 " Briegel v. Moehler, 82 111. 257. 
 
 "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 
 Me. 474; Whitman v. Westman, 30 Me. 285. Dart v. Barbour, 32 Mich. 267. 
 Wilson v. King, 27 N. J. Eq. 374. Willis v. Saunders, 51 N. Y. Super. Ct. 
 384. I/ally v. Holland, 1 Swan (Tenn. ), 396. Whether an execution creditor 
 who buys in the 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, 
 quceret Bailey v. Timberlake, 74 Ala. 221. In Carver v. Lasalette, 57 Wis. 
 232; 15 N. W. Rep. 162, a deed was reformed as against a purchaser under 
 an execution against the grantor. 
 
 Freeman on Judgments, 357, 359. Goodbar v. Dunn, 61 Miss. 618. 
 Martin v. Nixon, 92 Mo. 26 ; 4 S. W. Rep. 503. Galway v. Melchow, 7 Neb. 
 286. Bush v. Bush, 33 Kans. 556. Ruppert v. Haske, 5 Mackey (D. C.),
 
 574 MARKETABLE TITLE TO REAL ESTATE. 
 
 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. 91 Possession of the premises in respect to 
 which the mistake was made will, of course, be deemed sufficient 
 to put the purchaser on inquiry and charge him with constructive 
 notice of the mistake. As respects notice from the deed itself, it 
 is equally clear that the record of a deed which, by mistake, con- 
 tains a totally erroneous description of the land intended to be 
 conveyed, would not be sufficient to put a subsequent purchaser 
 
 262. In Alabama a judgment is not a lien on equitable estate, and, therefore, 
 a judgment creditor of one who mortgages an equity of redemption cannot 
 object to the reformation of the mortgage. Bailey v. Timberlake, 74 Ala. 
 221. In Mississippi, under a statute declaring unrecorded deeds void as to 
 subsequent creditors as well as purchasers, it has been held that a court of 
 equity will not correct a mistake in the description of land in a deed against 
 one who, having actual notice of the mistake at the time of the purchase, 
 bought the land at execution sale under a judgment rendered in favor of a 
 party who had no notice of the mistake at the time he recovered Judgment. 
 Nugent v. Priebatsch, 61 Miss. 402, disapproving Simmons v. North, 3 Sm. 
 & M. (Miss.) 67. A judgment creditor whose debt was made before the exe- 
 cution of a deed to certain premises, but whose judgment was obtained after- 
 wards, does not stand on the footing of a bona fide purchaser without notice, 
 within the rule protecting such purchasers against the reformation of deeds 
 on the ground of mistake. Lowe v. Allen, 68 Ga. 225. 
 
 * Adams v. Stevens, 49 Me. 362 ; Freeman's Bank v. Vose, 23 Me. 98. Gale 
 v. Morris, 29 N. J. Eq. 222. Preston v. Williams, 81 111. 176. De Jarnatt v. 
 Cooper, 59 Cal. 703. Holabird v. Burr, 17 Conn. 556. Haynes v. Seachrist, 
 13 Iowa, 445. In Fenwick v. Buff, 1 McArth. (D. C.) 107, an erroneous 
 description in a deed was corrected, not only as against the grantor, but as 
 against one holding under a prior deed, who had failed to record such deed 
 before the record of the deed containing the erroneous description.. Such a 
 person does not stand on the footing of a subsequent purchaser with- 
 out notice. It has been held that a court of equity will not, as against a 
 subsequent purchaser, set up or reform a deed absolutely void for want of due 
 execution by the grantor, even though such purchaser took with notice of the 
 void conveyance. Goodman v. Randall, 44 Conn. 321. This was a case of 
 much hardship. Hubbard executed to Allen a paper purporting to be a mort- 
 gage, but invalid as such because not signed by the grantor. At the same 
 time Hubbard conveyed the premises to Parker, subject to this mortgage, the 
 deed reciting that Parker assumed the payment of the mortgage. The court 
 refused to reform the mortgage and enforce it against Parker and his as- 
 signees, who had also accepted conveyances containing an assumption of the 
 mortgage. It was intimated, however, that Allen had his remedy on the 
 promise to pay contained in the several conveyances. It is believed that this
 
 REFORMATION OF THE CONVEYANCE. 575 
 
 on inquiry. 92 But if the mistake be of a kind that appears upon 
 the face of the deed, or if the deed contain enough to show what 
 land was really intended to be conveyed, no reason is perceived 
 why such a deed would not be sufficient to charge the purchaser 
 with notice by putting him on inquiry. 93 A bill to reform a deed 
 as against a subsequent purchaser will be demurable unless it 
 avers that the defendant purchased with notice of the mistake. 94 
 And such a purchaser will not be protected unless he paid a valu- 
 able consideration ; a deed will be reformed against one who took 
 a mortgage on the premises to secure a past due and antecedent 
 debt, without regard to the question of notice. 95 
 
 232. Volunteers. A court of equity will not decree specific 
 performance of a voluntary contract to convey lands. For the 
 same reason, 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. 96 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. 97 But this rule does not apply where the controversy is 
 between those claiming under the deed, the grantor standing in- 
 different. 98 Nor where the grantee has taken possession, made 
 
 decision is open to much doubt. In Bullock v. Whipp, 15 R. I. 195 ; 2 Atl. 
 Rep. 309, a mortgage, void for want of a seal was reformed as against a 
 subsequent attaching creditor of the mortgagor. See, also, Lebanon Sav. 
 Bank v. Hollenbeck, 29 Minn. 322; 13 N. W. Rep. 145. 
 
 ** Pena v. Armstrong, 95 Ind. 191, the court saying: " If this mortgage con- 
 tained no description of these premises it could not be reformed and fore- 
 closed against an innocent purchaser; but it does contain a description, and 
 this description, though defective, was sufficient to put the purchaser on 
 inquiry, and thus to charge him with notice of the extent of the premises 
 intended to be embraced in the mortgage," citing Wade Notice, 319. Mc- 
 Aleer v. McMullen, 2 Pa. St. 32. Parker v. Teas, 72 Ind. 235. See, also, 
 Cass County v. Oldham, 75 Mo. 50. 
 
 "Dayton v. Citizens' Nat. Bank, 11 III. App. 501. 
 
 * Davis v. Rogers, 33 Me. 522. 
 
 * First Nat. Bank v. Wentworth, 28 Kans. 183. 
 
 H 2 Story Eq. Jur. 793; Adams Eq. (5th Am. ed.) 342 (169), note. Pros- 
 ton 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 Wis. 259; Smith v. Wood, 12 Wis. 382. Dupre v. Thomp- 
 son, 4 Barb. (N. Y.') 279. 
 
 'Powell v. Morrispey, 98 N. C. 426; 4 S. E. Rfp. 185. 
 
 M Adair v. McDonald, 42 Ga. 506.
 
 576 MARKETABLE TITLE TO BEAL ESTATE. 
 
 valuable improvements and executed a mortgage on the premises, 
 and the application for correction of the deed is made by the 
 mortgagee." Deeds made in consideration of " services rendered 
 and love and affection m and " in consideration ,of one dollar and 
 natural love and affection" 2 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. 3 
 
 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, 4 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 
 will not aid the defective execution of a statutory power. 5 But a 
 mistake in a mere matter of description in a married woman's 
 deed may always be reformed, 6 and confessed clerical errors 
 therein will be corrected. 7 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. 8 In California, under a statute allowing the 
 amendment of defective certificates of acknowledgment, the court 
 permitted a defective certificate cf acknowledgment by a married 
 woman to be reformed. 9 
 
 "Cummings v. Freer, 26 Mich. 128. 
 
 'Baker v. Pyatt, 108 Ind. 61; 9 N. E. Rep. 112. 
 
 * Mason v. Moulder, 58 Ind. 1. But see Powell v. Morrissey, 98 N. C. 426; 
 4 S. E. Rep. 185. 
 
 8 Mitchell v. Mitchell, 40 Ga. 11; Crockett v. Crockett, 73 Ga. 647. 
 
 4 Martin v. Dwelly, 6 Wend. (N. Y.) 9; 21 Am. Dec. 245. Dickinson v. 
 Glenney, 27 Conn. 104. Holland v. Moon, 39 Ark. 120. Grapengether v. 
 Ferjervary, 9 Iowa, 163; 74 Am. Dec. 336. Hamar v. Medskar, 60 Ind. 413. 
 
 "Williams v. Cudd, 26 So. Car. 213; 2 S. E. Rep. 14. 
 
 'Gardner v. Moore, 75 Ala. 394; 51 Am. Rep. 454. Carper v. Munger, 62 
 Ind. 481; Wilson v. Stewart, 63 Ind. 294; Styes v. Robbins, 76 Ind. 547; 
 Jones v. Sweet, 77 Ind. 187; Hewitt v. Powers, 84 Ind. 295. 
 
 T Savings & Loan Assn. v. Meeks, 66 Cal. 371; 5 Pac. Rep. 624. 
 
 Bradshaw v. Atkins, 110 111. 323. Christman v. Colbert, 33 Minn. 509; 24 
 N. W. Rep. 301. 
 
 Hutchinson v. Ainsworth, 63 Cal. 286. Without the aid of a statute, de- 
 fects in a certificate of acknowledgment, whether of a married woman or any 
 other person, cannot be supplied. Ante, 41.
 
 BOOK H. 
 
 OF REMEDIES IN DISAFFIRMANCE 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 necessity 
 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 subdivision 
 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 foregoing 
 pages having been devoted to the examination of remedies in af- 
 firmance of the contract, and their incidents, we pass now to the 
 consideration of those in which the purchaser elects to disaffirm, 
 abandon or rescind the contract. 
 
 sr
 
 578 MARKETABLE TITLE TO REAL ESTATE. 
 
 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 rescission 
 may, of course, be accomplished by act of the parties without resort 
 to judicial proceedings. The parties may, at any time before con- 
 veyance, rescind the contract by consent, 2 which consent may be ex- 
 press or implied from the acquiescence of the one party in the acts 
 of the other. 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, 3 or knowledge of 
 such acts on the part of the latter as constituted in themselves a 
 rescission. 4 The proper course to be pursued by the party intend- 
 ing to rescind is to notify the other party of that intent. 5 This 
 form of relief is one to which the parties, acting in good faith, not 
 infrequently resort, the purchaser agreeing to give up the premises 
 and the vendor returning the purchase money. If, upon a rescis- 
 sion of the contract by consent, the vendor fail to return the pur- 
 
 1 The several ways in 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 exercise 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." 
 
 'Fry Specific Perf. 998; 2 Warvelle Vend. 834, 947. Boyce v. McCul- 
 lough, 3 Watts & S. (Pa.) 429; Lauer v. Lee, 42 Pa. St. 165. 
 
 1 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. Carney v. 
 Newbeary, 24 111. 203. Alexander v. Utley, 7 Ired. Eq. (N. C.) 242. 
 
 4 2 Warvelle Vend. 883. 
 
 1 Sugd. Vend. (14th Am. ed.) 370 (243). Reynolds v. Nelson, 6 Madd. 
 18. Alexander v. Utley, 7 Ired. Eq. (N. C.) 242; McDowell v. McKesson, 6 
 Ired. Eq. (N. C.) 278. Where vendor and vendee are both endeavoring to 
 clear up a defect in the title, neither has a right to rescind or consider his 
 obligation to the other determined without reasonable notice. Lyons v. 
 Pyatt, (N. J. Eq.) 26 Atl. Rep. 33.
 
 OF RESCISSION BY ACT OF THE PARTIES. 579 
 
 chase money, the vendee may recover it back ; the law implies an 
 agreement on the part of the vendor to repay. 6 And where the con- 
 tract is rescinded by the acts of both parties, the purchaser may re- 
 cover back what he has paid, though the contract provides that upon 
 default in the payment of the purchase money the purchaser shall 
 forfeit such payments as he may have made. 7 
 
 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 
 such a provision exists, the forfeiture cannot occur so long as the 
 vendor has not a good title. 8 
 
 235. RESCISSION BY THE ACT OF ONE PABTY ONLY. Any 
 act by which either party clearly manifests that he has abandoned 
 the contract, is as to him a rescission; as where the purchaser 
 seeks, by judicial proceedings, to recover back the purchase money 
 which he has paid, 9 or where the vendor, in default of payment of 
 the purchase money, resells the premises to a stranger, 10 or where 
 he declares the contract rescinded on account of his inability to 
 furnish a good title, or a good merchantable abstract. 11 Of course 
 one party to a contract cannot, of his own motion, deprive the other 
 of his right to enforce the contract by declaring that he will pro- 
 ceed no further in the matter. But if the act of one party be such 
 as must of necessity prevent the other party from fulfilling the 
 contract, as where the vendor disables himself from performance 
 on his part by conveying away the premises, the other party may 
 treat the contract as rescinded. 12 
 
 A contract can be rescinded in pais of course only by consent of 
 all the contracting parties. But such consent need not be expressed 
 
 Beaman v. Simmons, 76 N. Y. 43. 
 
 'Shively v. Land Co., (Cal.) 33 Pac. Rep. 848, citing several California 
 decisions. 
 
 Getty v. Peters, 82 Mich. 661; 46 N. W. Rep. 1036; Converse v. Blumrich, 
 14 Mich. 109; 90 Am. Dec. 230. 
 
 1 Sugd. Vend. (8th Am. ed.) 537 (358). Refusal to execute a conveyance 
 is a rescission by the vendor. 2 Sugd. Vend. (8th Am. ed.) 212 (562). 
 
 'Ketchum v. Everson, 13 Johns. (N. Y.) 359; 7 Am. Dec. 384. 
 
 "Elder v. Chapman, 176 111. 143; 52 N. E. Rep. 10. 
 
 "Chitty Cont. (10th Am. ed.) 812; et seq.
 
 580 MARKETABLE TITLE TO BEAL ESTATE. 
 
 in words ; it may be implied from the acts and conduct of the other 
 party. If one party announces his intention to rescind and the 
 other does not object ; or if one party fails to perform or disables 
 himself from performing on his part, the other party may treat the 
 contract as rescinded. 13 A subsequent conveyance of the premises 
 by the vendor, after the purchaser has defaulted in the payment of 
 the purchase money, is not necessarily a rescission of the contract. 
 The vendor may assign his contract to a third person, and the con- 
 veyance to the assignee may be made for the purpose of enabling 
 him to tender performance to the purchaser. 14 A rescission of the 
 contract by act of the parties, must be concurred in by both parties, 
 and must affect all parties previously bound. 
 
 When it is said that one party cannot rescind the contract, with- 
 out the consent of the other, it is not meant that he cannot himself 
 abandon the contract if he conceives that he has a right so to do, 
 hut that he cannot by so doing deprive the other party of his right 
 to enforce the contract. Thus, if the vendor attempt to rescind by 
 conveying the premises to a stranger, he cannot thereby affect the 
 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 performance 
 in equity, or damages at law, remains unimpaired. If the pur- 
 
 M Parsons Cont. 677. Lewis v. White, 16 Ohio St. 444. In Trevino r. 
 Cantu, 61 Tex. 88, it appeared that upon the execution of a deed with general 
 warranty, the parties executed at the same time another instrument providing 
 that if the title should fail, the purchaser, who had taken possession under 
 the deed, should not recover more than $2,000 which was the price paid. It 
 was held that the vendor could not by afterwards confessing that the title 
 was defective compel the purchaser in a suit for rescission to accept the 
 $2,000; that the purchaser had a right to retain possession and resist an 
 adverse claim; and in case of eviction, recover according to the terms of his 
 contract; and that he had a right to buy out the adverse claimant if he de- 
 sired to do so, and to every other advantage resulting from possession, the 
 court saying that to allow a rescission in opposition to the wishes of the 
 vendee on a mere confession of the invalidity of the title would be to place 
 the purchaser at the mercy of the seller, since in all instances in which the 
 land had appreciated in value, the seller could confess invalidity of the title, 
 recover the land and speculate upon the advance in the value of the property. 
 
 "Davidson v. Keep, 61 Iowa, 218; 16 N. W. Rep. 101. Compare Dotson v. 
 Bailey, 76 Ind. 434.
 
 OF RESCISSION BY ACT OF THE PARTIES. 581 
 
 chaser 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. 15 
 
 236. STATUTE OF FBATJDS. It has been decided that a remis- 
 sion <^f 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. 17 The rescission, however, must be 
 accompanied by acts leaving no doubt of the intent. Such as can- 
 celling the agreement or removing from the premises. 18 A 
 learned writer observes in this connection : " It has been urged that 
 the Statute of Frauds precludes parol evidence of rescission of 
 contracts relating to land; for a contract to waive a purchase of 
 land as much relates to land as the original contract. But it is 
 replied that the rescinded contract is not the contract on which the 
 action is brought, and that while the statute provides that no action 
 shall be brought on any contract of the description there specified, 
 except it be in writing, it does not provide that every such written 
 contract shall support an action. In the result it is perfectly well 
 ascertained that a contract in writing, and by law required to be 
 in writing, may in equity be rescinded by parol, and waiver by 
 mutual parol agreement, therefore, furnishes a sufficient defense 
 to an action for specific performance." 19 
 
 "Lewis v. McMillen, 41 Barb. (N. Y.) 420. Bryce v. McCulloch, 3 Watts 
 & Serg. (Pa.) 429. 
 
 "Dial v. Grain, 10 Tex. 444. 
 
 "2 Warvelle Vend. 834; Fry Specific Perf. 1000. Boyce v. McCulloch, 3 
 Watts & Serg. (Pa.) 429; Goucher v. Martin, 9 Watts (Pa.), 106. In Gunby 
 v. Sluter, 44 Md. 237, the question whether a parol agreement to rescind a 
 contract for the sale of lands is within the Statute of Frauds, was raised 
 but not decided. The court referred to Buckhouse v. Crossby, 2 Eq. Cas. Ab. 
 34, pi. 44; Goss v. Ld. Nisgent, 5 B. & Ad. 58; Sugden V. & P. 167, 168; 
 Addison Cont. 97; 2 Taylor Ev. 1905; Benjamin Sales, 159; Browne Stat. 
 Frauds, 429-436. 
 
 "Lauer v. Lee, 42 Pa. St. 165. See, also, Fry Spec. Perf. (3d Am. ed.) 
 1004, and note 1, p. 604. 
 
 "Fry Spec. Perf. (3d Am. ed.) 1002; citing Gonian v. Salisbury, 1 Vern. 
 240; Inge v. Lippingwell, 2 Dick. 469; Davis v. Symonds, 1 Cox, 402; Bobin- 
 Bon v. Page, 3 RUBS. 114.
 
 OF VIRTUAL RESCISSION OF THE CONTRACT BY PROCEEDINGS AT 
 LAW. 
 
 OF PROCEEDINGS AT LAW WHERE THE CONTRACT is EXECUTORY. 
 CHAPTEK XXIV. 
 
 OF THE RIGHT TO RECOVER BACK OR DETAIN THE PURCHASE 
 MONEY ON FAILURE OF THE TITLE. 
 
 GENERAL PRINCIPLES. 237. 
 
 RESTITUTION OF THE PURCHASE MONEY. 238. 
 
 WHAT ACTION PURCHASER SHOULD BRING. 239. 
 
 DETENTION OF THE PURCHASE MONEY. 240. 
 
 EXCEPTIONS AND QUALIFICATIONS. 241. 
 
 WHAT OBJECTIONS TO TITLE MAY BE MADE. 242. 
 
 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 BARGAIN'S. 247. 
 EFECT 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. 
 
 237. GENERAL PRINCIPLES. Strictly speaking there is at 
 law no such thing as a technical rescission of a contract for the sale 
 of lands, for a court of law has no power to decree the surrender 
 and cancellation of the contract, and the restitution of whatever 
 either party has received in partial performance thereof. These 
 are matters particularly within the province of a court of equity. 
 But a virtual rescission of the contract is accomplished at law by
 
 BECOVEB OE DETAIN PUECHASE MONEY ON FAILUEE OF TITLE. 583 
 
 allowing the purchaser, in case the title fails, to recover back so 
 much of the purchase money as he may have paid, 1 or to detain 
 that which remains unpaid, upon condition in either case that he 
 restore the premises to the vendor, and place him substantially in 
 the same condition in which he was before the contract was made. 
 
 The right to rescind an executory contract for the sale of land is 
 perhaps more frequently exercised by proceedings of this kind, 
 than in any other mode. Of this nature is the common action to 
 recover back the deposit made at the time of the purchase, subject 
 to the right of the purchaser to examine the title. It is to be 
 borne in mind, however, that the right of the purchaser to recover 
 back or to detain the purchase money where the title is found to be 
 defective, is subject to the vendor's right to perfect the title in all 
 cases in which time is not material. 2 
 
 The right of the purchaser to detain or to recover back the pur- 
 chase money depends mainly upon the following considerations, 
 namely : Whether the contract has been executed by a conveyance 
 to the purchaser ; whether that conveyance contains covenants for 
 title; and whether the purchaser or grantee is in the undisturbed 
 possession and enjoyment of the premises. The right to relief in 
 case of fraud by the vendor in respect to the title is usually en- 
 forced in equity, though an action at law may be maintained to 
 recover damages for the deceit. There have been few more fruit- 
 ful sources of litigation in the United States than disputes between 
 vendors and purchasers of lands in respect to the sufficiency of title. 
 The vast number of cases to be found in this field are to be at- 
 
 1 Brown v. Witter, 10 Ohio, 144. No argument is needed to show that an 
 executory contract for the sale of lands is practically rescinded by proceed- 
 ings at law wfien the purchaser recovers back his purchase money. " A court 
 of equity," says a learned writer, " entertains a suit for the express purpose 
 of procuring a contract or a conveyance to be canceled, and renders a decree 
 conferring in terms that exact relief. A court of law entertains an action for 
 the recovery of the possession of chattels, or under some circumstances for 
 the recovery of land, or for the recovery of damages, and although nothing 
 is said concerning it, either in the pleadings or in the judgment, a contract 
 or a conveyance, as the case may be, is virtually rescinded; the recovery is 
 based upon the fact of such rescission, and could not have been granted unless 
 the rescission had taken place. The remedy of cancellation is not expressly 
 asked for, nor granted by the court of law, but all its effects are indirectly ob- 
 tained in the legal action." 1 Pomeroy Eq. Jur. 110. 
 
 'Post, ch. 32.
 
 584 MARKETABLE TITLE TO REAL ESTATE. 
 
 tributed principally to the carelessness and indifference of pur- 
 chasers in omitting an examination of the title before completing 
 the contract; to their desire to escape from injudicious and un- 
 profitable bargains ; and to the fraud of the vendor in palming off 
 a bad title upon a credulous, inexperienced or ignorant purchaser. 
 The circumstances under which the purchaser may maintain an 
 action to recover back his purchase money while the contract is 
 executory have been thus classified in an American case: 3 (1) 
 Where the recission is voluntary, and with mutual consent of the 
 parties, and without default on either side; (2) Where the vendor 
 cannot or will not perform the contract on his part ; (3) Where the 
 vendor has been guilty of fraud in making the contract ; 4 (4) 
 Where by the terms of the contract, it is left in the purchaser's 
 power to rescind it by any act on his part, and he does it; 5 (5) 
 Where neither party is ready to complete the contract at the stipu- 
 lated time, but each is in default. 6 Of these cases the last two 
 appear to be included in the first three ; of those three rescission 
 by consent of both parties, and rescission in cases of fraud, are else- 
 where considered in this work. 7 We have, therefore, to do now 
 only with cases in which the vendor cannot, for want of title, per- 
 form the contract on his part. The state of American law respect- 
 ing the right of the purchaser to detain or to recover back the 
 purchase money on failure of the title, can best be presented, it is 
 believed, in a series of general propositions. Some of these are 
 necessarily qualifications or restrictions of the others ; consequently 
 the reader, before quitting the subject, should glance over the 
 entire series. Those propositions may be thus stated : 
 
 I. A purchaser of land may, so long as the contract remains 
 unexecuted by a conveyance, as a general rule, recover back or 
 
 8 Baston v. Clifford, 68 HI. 67; 18 Am. Rep. 547; Bryson v. Crawford, 68 
 111. 362. 
 
 4 Baston v. Clifford, 69- 111. 67. Citing Smith v. Lamb, 26 111. 396; 79 Am. 
 Dec. 381; Bannister v. Read, 1 Gilm. (111.) 99; Battle v. Rochester City 
 Bank, 5 Barb. (N. Y.) 414. 1 Chit. PI. 355. 
 
 'Baston v. Clifford, 68 111. 67. Citing Towns v. Barrett, 1 Term R. 133. 
 Gillett v. Maynard, 5 Johns. (N. Y.) 85; 4 Am. Dec. 329; 1 Chit. PI. 356. 
 
 Baston v. Clifford, 68 111. 67. Citing 1 Chit. PI. 355; Chit, on Contract 
 (5th Am. ed.), 632. 
 
 7 Ante, ch. 23 ; post, chs. 29 and 35.
 
 RECOVER OK DETAIN PURCHASE MONEY ON FAILURE OF TITLE. 585 
 
 detain the purchase money, if the title of the vendor be not such as 
 the purchaser is, under the contract, entitled to require. 8 
 
 II. A purchaser of lands in undisturbed possession cannot, as a 
 general rule, while the contract is executory, recover back the pur- 
 chase money on failure of the title, or resist the payment thereof, 
 without restoring the premises to the vendor and placing him in 
 statu quo. 9 
 
 III. If the contract has been executed by a conveyance of the 
 land to the purchaser without general covenants for title, he can, 
 if the title fails, neither recover back the purchase money nor 
 detain that which remains unpaid, either at law or in equity, unless 
 the vendor was guilty of fraud, or the contract was founded in 
 mistake of the parties as to some fact upon which the title 
 depended. 10 
 
 IV. If the contract has been executed by the delivery and accept- 
 ance of a conveyance containing a covenant of warranty, or for 
 quiet enjoyment, or against incumbrances, and there has been such 
 a breach of those covenants as would give the grantee a present 
 right to recover substantial damages against the grantor, the former 
 will, in an action against him for the purchase money, be allowed 
 to set up such a breach as a defense by way of recoupment of the 
 plaintiff's demand. If there has been no such breach the grantee 
 cannot detain the purchase money. 11 
 
 V. If the contract has been executed by a conveyance with a 
 covenant of seisin or of good right to convey, and it clearly appears 
 that the covenantor had no title, the 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 convey the premises to the covenantor, and do all 
 that may be necessary to put him in statu quo. 
 
 VI. After a contract for the sale of lands has been executed by 
 a conveyance with covenants for title, the purchaser cannot, though 
 
 * This chapter. 
 
 Post, ch. 25. 
 M Post, ch. 27. 
 11 Ante, ch. 16. 
 1J Post, ch. 26.
 
 586 MARKETABLE TITLE TO REAL ESTATE. 
 
 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 pur- 
 chase 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 
 
 PBOPOSITION I. 
 
 A purchaser of lands may, so long as the contract remains un- 
 executed by a conveyance, as a general rule, recover back or 'detain 
 the purpose money, if the title of the vendor be not such as the 
 purchaser is, under the contract, entitled to require. 
 
 238. BIGHT TO BECOVEB BACK THE PTTBCHASE 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 in- 
 terest 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 consider 
 the contract at an end and bring an action for money had and re- 
 ceived 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 purchaser may, 
 
 13 Post, ch. 28. 
 
 M Post, ch. 29. In a case in which the purchaser deposited the cash pay- 
 ment with a stakeholder, to be forfeited on failure to comply with the con- 
 tract, and the vendor made no effort to cure defects pointed out by the pur- 
 chaser's 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 S. W. Rep. 648. k 
 
 15 1 Sugd. Vend. ( 14th ed. ) 298. Wherever the purchaser has a right to 
 rescind the contract, he may bring an action for money had and received to 
 his use. Id. 249. Turner v. Nightingale, 2 Esp. 639; Hearn v. Tomlin, 
 Peake Cas. 192; Thompson v. Miles, I Esp. 184; Hibbert v. Shee, 1 Camp.
 
 BECOVEB OE DETAIN PUECHASE MONEY ON FAILUBE OF TITLE. 587 
 
 of course, rescind the contract and recover back or detain the 
 purchase money at law, in any case in which the vendor fraud- 
 ulently misrepresented or concealed the state of his title. 16 If while 
 the contract is executory the purchaser is forced to buy in an out- 
 standing adverse claim to the property in order to protect his title, 
 he may recover back from the vendor or his estate the amount ex- 
 pended for that purpose. 17 
 
 Where the contract provided for the forfeiture of cash payments 
 made by the purchaser in case of his failure to pay the deferred 
 payments promptly, it was held competent for the purchaser 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 contract for non-pay- 
 ment while the question of his title is unsettled. 18 
 
 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 property 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 considers 
 
 Ca. 113; Duffell v. Wilson, 1 Camp. Ca. 401; Greville v. Da Costa, Peake 
 Add. Cas. 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. Davies, 85 Cal. 110; 24 Pac. Rep. 613, where the purchaser had 
 only on " 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. Judsori v. Wass, 11 Johns. (N. 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. Pipkin v. James, 1 
 'Humph. (Tenn.) 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. 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. 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. 
 
 "Post, chs. 29 and 35. Inness v. Willis, 16 Jones & S. (N. Y.) 188. 
 
 "Ante, ch. 19. Ferguson v. Teel, 82 Va. 690. 
 
 "Missouri, K. & T. R. Co. v. Pratt, (Kans.) 67 Pac. Rep. 464. 
 
 "Small v. Atwood, Yo. 407. In this case, however, the alleged fraudulent 
 representations were as to the quality of the estate.
 
 588 MARKETABLE TITLE TO REAL ESTATE. 
 
 that such a rule, if established, would lead to much inconvenience. 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 
 
 238-a. FORFEITURE OF DEPOSIT. It is frequently provided 
 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 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. 22 
 
 But want 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 enable 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. 23 
 
 239. WHAT ACTION THE PURCHASER SHOULD BRING. In 
 those States in which the common-law system of procedure is re- 
 tained, 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. 24 In this action, he 
 will recover merely what he has paid, with interest, including the 
 deposit made at the time of the sale, which is considered a part 
 of the purchase money, and cannot recover for expenses incurred 
 
 M l Sugd. Vend. (8th Am. ed.) 393 (256). 
 
 * Jenness v. Spraker, (Ind. App.) 27 N. E. Rep. 117; Toney v. Toney, 73 
 Ind. 34; Brown v. Harrison, 93 Ind. 142. 
 
 * Platte Land Co. v. Hubbard, 12 Colo. App. 465 ; 56 Pac. Rep. 64. 
 "McAlpine v. Reichenecker, 56 Kans. 100; 42 Pac. Rep. 339. 
 
 "1 Sugd. Vend. (8th Am. ed.) 357 (236).
 
 RECOVER OR DETAIN PURCHASE MONEY ON FAILURE OF TITLE. 589 
 
 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 contract or for deceit, 
 as the case may be. 26 If, however, he took from the vendor a bond 
 conditioned to make title, his remedy is by action of covenant on 
 the bond. 76 
 
 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. 27 
 
 240. DETENTION OF THE PURCHASE MONET. The pur- 
 chaser, may, also, while the contract is executory, resist the pay- 
 ment of purchase money, if the title has failed. 28 This right de- 
 
 ! *Sugd. Vend. (8th Am. ed.) 357 (236). 
 
 "Post, 242. Rounds v. Baxter, 4 Me. 454. Green v. Green, 9 Cow. (N. 
 Y.) 46. Charles v. Dana, 14 Me. 383. 
 
 "Wright v. Dickinson, 67 Mich. 580. This was an action to recover back 
 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, and 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 purchaser had received would have to bo 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 ATa. 
 375; Pearson v. Seay, 35 Ala. 612. Sorrells v. McHenry, 38 Ark. 127. Clark 
 v. Croft, 51 Ga. 368; Hall v. McArthur, 82 Ga. 572; 9 S. E. Rep. 534. Greg- 
 ory v. Scott, 4 Scam. (111.) 392. Cunningham v. Gwinn, 4 Bl. (Ind.) 341. 
 Fish v. West, 18 Ky. Law R. 144; 35 S. W. Rep. 624. Dufief v. Boykin, 9 
 La. Ann. 295; Wamsley v. Hunter, 29 La. Ann. 628. Buchanan v. Lorman, 
 3 Gill (Md.), 51; Dorsey v. Hobbs, 10 Md. 412. Peques v. Mosby, 7 Sm. & 
 M. (Miss.) 340; Mobley v. Keyes, 13 Sm. & M. (Miss.) 677. Barton v. Rec- 
 tor, 2 Mo. 524; Wellman v. Dismukes, 42 Mo. 101. Earl v. Campbell, 14 
 How. Pr. (N. 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. Stoddart v. Smith, 5 Binney (Pa.), 365; Poke v. Kelly, 13 S. & R. 
 (Pa.) 260; Withers v. Baird, 7 Watts (Pa.), 227; 32 Am. Dec. 754; Col- 
 well v. Hamilton, 10 Watts (Pa.), 413; Cans v. Renshaw, 2 Pa. St. 34; 44 
 Am. Dec. 152. Puckett v. McDonald, 58 Tenn. 395. West v. Shaw, 32 W. 
 Va. 195; 9 S. E. Rep. 81. In Rhodes v. Wilson, 12 Colo. 65; 20 Pac. Rep. 746,
 
 590 MARKETABLE TITLE TO BEAL ESTATE. 
 
 pends upon the same principles upon which he is allowed to re^ 
 cover 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, 29 and 
 this to prevent circuity of action, for there would be no reason in 
 requiring the defendant to pay over that which he could im- 
 mediately recover back from the plaintiff. The purchaser cannot 
 be compelled to pay the purchase money if, by reason of the fraud- 
 ulent representation of the vendor with respect to the title, he was 
 induced to agree to accept a quit-claim conveyance of the land. 30 
 The fact that a note for the purchase money of land was exe- 
 cuted 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. 31 Neither is that right affected by the purpose for 
 which he bought the premises, though such purposes may have 
 been dishonest or improper. 32 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 
 
 it was held that in an action on a note for the purchase money of land, an 
 answer setting up failure of title and inability of the vendor to convey, pre- 
 sented a legal, and not an equitable defense. It would seem that this obser- 
 vation of the court must be taken with the qualification that the plea must 
 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 doubtful, 
 the authorities conclusively show 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, (Fla.) 3 So. Rep. 577. The cases in 
 the English reports involving the right of the purchaser to set up the de- 
 fense of failure of title in an action for the purchase money, are few com- 
 pared with those in which the purchaser seeks to recover back the purchase 
 money on the same ground, and these latter consist chiefly of actions to 
 recover back the earnest money, or deposit made with the auctioneer. The 
 causes of this disparity probably are that owing to the English practice of 
 carefully examining the title few contracts proceeded further than the pay- 
 ment 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. 
 
 "Billiard on Vend. 71. 
 
 "Hayes v. Bonner, 14 Tex. 629. 
 
 "Crawford v. Keebler, 5 Lea (Tenn.), 547.
 
 BECOVEB OE DETAIN PUECHASE MONEY ON FAILUEE OF TITLE. 591 
 
 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. 33 
 
 As between vendor and purchaser there is no obligation upon the 
 latter to record the contract of sale under which he holds. There- 
 fore, where, for want of such record, the premises are subjected in 
 the hands of the purchaser to the payment of claims against the 
 vendor, the purchaser, having lost the estate, is none the less en- 
 titled to detain the unpaid purchase money. 34 
 
 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, 35 where the vendor has a right to 
 perfect the title, 36 or to require the purchaser to take the title with 
 compensation, or abatement of the purchase money, in case of 
 trifling deficiencies and incumbrances, 37 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. 88 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. 39 This is 
 a narrow interpretation of such an agreement and is not supported, 
 it is believed, by the weight of authority, 40 except in those cases in 
 which the purchase money can be applied to the discharge of the 
 incumbrance. 
 
 "Hollenburgh v. Morrison, 9 Watts (Pa.), 408. 
 
 "Wallace v. McLaughlin, 57 111. 53. 
 
 "Daniel v. Baxter, 1 Lea (Tenn.), 630. 
 
 "Ante, ch. 8. 
 
 "Post, 325. 
 
 "Post, 308. 
 
 " Post, 256, et geq. 
 
 M Fuller v. Hubbard, 6 Cow. (N. Y.) 13; 16 Am. Dec. 423. 
 
 "In Lewis v. White, 16 Ohio St. 441, it was held that under an agreement 
 by which he was to receive a " perfect title," the purchaser might rescind 
 the contract if the premises .were incumbered.
 
 592 
 
 MARKETABLE TITLE TO REAL ESTATE. 
 
 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. 41 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 
 Avhen he rejected the title. 42 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. 43 
 
 The right to resist the payment of the purchase money for defect 
 of title is personal to the vendee. Therefore, if the vendee execute 
 
 "Todd v. Hoggart, Moo. & M. 128. Chitty Covt. (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 exemination 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 consider- 
 ation. 
 
 ^Youmans v. Edgerton, 91 N. Y. 403, disapproving Smith v.,McC\uakey, 
 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 neither 
 case could the debtor, if he accepted the order or assented to the assignment, 
 set up in defense of payment any equity between himself and the assignor, 
 nor after payment recover back the money upon showing even such equity as 
 would have been a defense as between himself and the assignor.
 
 EECOVEB OE DETAIN PUECHASE MONEY ON FAILUEE OF TITLE. 593 
 
 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. 44 This is a mere application of the principle that a surety 
 oannot, as a general rule, avail himself of his principal's right of 
 set-off, recoupment or counterclaim. 45 
 
 242. WHAT OBJECTION'S 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 ab- 
 sence of words of conveyance; defects which appear from the 
 public records, such as prior conveyances by the vendor, mortgages, 
 judgments, etc., and defects in pais, or those to be established by 
 the testimony of witnesses, such as want of heirship, personal dis- 
 ability of a grantor in the chain of title, etc. A further classifica- 
 tion of the principal sources or grounds of objection to the title may 
 be seen in a preceding part of this work. 46 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. But now the objection 
 that the title is not such as the purchaser could be required to take 
 upon a bill for specific performance, may be made at law as freely 
 as in equity. 47 
 
 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 
 
 "2 Parsons B. & N. 536, 537. Lewis v. McMillen, 41 Barb. (N. Y.) 431, 
 citing Gillespie v. Torrance, 25 N. Y. 306; 82 Am. Dec. 355. Webb v. 
 Spicer, 13 Q. B. 886; Salmon v. Webb, 16 Eng. L. & Eq. 37. 
 
 45 There is, however, a conflict of authority on this point. Brandt on 
 Suretyship, 203; 24 Am. & Eng. Encyc. of Law, 798. 
 
 48 Ante, 77, et seq. 
 
 4t Post, 286. 
 
 38
 
 594 MARKETABLE TITLE TO REAL ESTATE. 
 
 the right to recover any such items depends upon contract, and the 
 count for money had and received disaffirms the contract. 48 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. 49 
 
 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 
 vendor, the burden will be on him to show defects in the title. 50 
 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. 51 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. 52 
 
 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 
 
 48 Ante, 93. 1 Sugd. Vend. (8th Am. ed.) 547 (362) ; Chitty Cont. (10th 
 Am. ed.) 339. Canfield v. Gilbert, 4 Esp. 221; Gosbell v. Archer, 4 Nev. & 
 Man. 485; Walker v. Constable, 1 Bos. & Pul. 306. 
 
 49 Wetmore v. Bruce, 118 N. Y. 320; 23 N. E. Rep. 303; Elfenheim v. Von 
 Hafen, 23 N. Y. Supp. 348. 
 
 "Post, 281. Dwight v. Cutler, 3 Mich. 566; 64 Am. Dec. 105; Allen 
 v. Atkinson, 21 Mich. 361. Sawyer v. Sledge, 55 Ga. 152; Cantrell v. Mobb, 
 43 Ga. 193. Bolton v. Branch, 22 Ark. 435. 
 
 "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 ' 
 to the vendee '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, 
 but 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 accepts 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 be upon him to show defects. The presumption will be, in the 
 absence of any showing, that he satisfied himself respecting the title when 
 he made his bargain." 
 
 "Hartley v. James, 50 N. Y. 41. Kane v. Rippy, 22 Oreg. 296; 23 Pac. 
 Rep. 180. In an action of covenant to recover the purchase money a plea 
 of covenants performed, absque hoc, etc., does not put the plaintiff's title 
 in issue and impose on him the burden of showing that his title is good. 
 Hite v. Kier, 38 Pa. St. 72.
 
 EECOVEE OK DETAIN PUECHASE MONEY ON FAILUBE OF TITLE. 595 
 
 the contract. 53 But if the purchaser rejects a good and marketable 
 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. 54 
 
 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 re- 
 cover back whatever purchase money he has paid. 55 
 
 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 administrators, 
 sheriffs, officers of a court, and other judicial and quasi-judicial 
 sales. 66 This rule of course does not apply where the question is 
 only as to the validity or legality of the sale. 67 
 
 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 un- 
 marketable will be elsewhere considered. 68 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 contract and 
 demanding a conveyance. 59 
 
 "Burley v. Shinn, 1 Neb. 433. Gwin v. Calegaris, 139 Cal. 384; 73 
 Pac. 851. 
 
 M Beyer v. Braender, 57 N. Y. Super. Ct. 429. 
 
 "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. 
 
 "Rorer on Jud. Sales, 458. Ellis v. Anderton, 88 N. C. 472, distinguish- 
 ing Shields v. Allen, 77 N. C. 375. 
 
 87 See Shipp v. Wheless, 33 Miss. 646. 
 
 "Post, ch. 31. 
 
 1 Sugd. Vend. (8th Am. ed.) 368 (241).
 
 596 MARKETABLE TITLE TO REAL ESTATE. 
 
 If the vendor be unable to perform his contract for want of title, 
 the purchase money may be recovered back though the contract 
 was void, as where it was within the Statute of Frauds. The 
 defendant holds the money without consideration and is bound to 
 return it. 60 
 
 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 
 epuity 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. 61 
 The rule is the same, however, in an action for damages unless the 
 vendor was guilty of fraud. 62 
 
 245. BIGHT TO RESCIND WHEN THE ESTATE IS INCTJM- 
 BEEED. In many cases the purchaser may rescind the contract 
 and recover back or detain the purchase money, if the estate is in- 
 cumbered. 63 Where an incumbrance is discovered previously to the 
 execution of the conveyance and payment of the purchase money, 
 
 80 Gosbell v. Archer, 4 Nev. & Mann. 485 ; Adams v. Fairbain, 2 Stark. 277. 
 Gillett v. Maynard, 5 Johns. (N. Y.) 85; 4 Am. Dec. 329. Here, however, the 
 vendor merely refused to convey. Buck v. Waddle, 1 Ohio, 357. Thompson 
 v. Gould, 20 Pick. (Mass.) 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. Sollett, 4 
 Burr. 2133. 
 
 "Ante, 91, 101. 
 
 * See ch. 31, 304, et seq. A restriction which prevents the purchaser 
 from using a portion of the frontage of the premises otherwise than for 
 a court yard is an incumbrance entitling him to rescind the contract and 
 recover back his deposit. Wetmore v. Bruce, 54 N. Y. Super. Ct. 149; affd., 
 118 N. Y. 319; 23 N. E. Rep. 303, citing Trustees v. Lynch, 70 N. Y. 440; 
 26 Am. Rep. 615, and distinguishing Riggs v. Pursell, 66 N. Y. 199. In 
 Colorado it has been held that an irrigation contract is not appurtenant to 
 the lands irrigated, and that if a vendee of such lands pays a balance due 
 on such a contract under which the land was to be irrigated for a term of 
 years, he cannot look to the vendor to reimburse him. Chamberlain v. Amter, 
 (Colo.) 27 Pac, Rep. 87.
 
 RECOVEE OE DETAIN PUECHASE MONEY ON FAILUBE OF TITLE. 597 
 
 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. 64 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 incum- 
 brance. 86 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 of the purchaser, the 
 latter may rescind and recover his deposit. 66 
 
 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. 67 
 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 assessments. We have seen under what circumstances 
 taxes and assessments upon the warranted premises will be deemed 
 a breach of the covenant against incumbrances. 68 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. 69 In a case in which the contract provided that the purchaser 
 
 **2 Sugd. Vend. (8th Am. ed.) 192. Classman v. Condon, 27 Utah 433; 
 7 Pac. 343. 
 
 "Higgins v. Eagleton, 155 N. Y. 466; 50 N. E. Rep. 287. 
 
 Raben v. Risnikoff, 88 N. Y. Supp. 470 ; 95 App. Div. 68. 
 
 "Post, 304, et seq., ch. 31. See, also, ante, 123. 
 
 * Ante, 124. " Taxes " include special assessments. Giles v. Peo. Nat. 
 Bank, 198 111. 307; 64 N. E. Rep. 1060; Williams v. Monk, 179 Mass. 22; 60 
 N. E. Rep. 394. 
 
 "Furber v. Purdy, 69 Mo. 601. Sherman v. Savery, 2 Fed. Rep. 50o. 
 Gary v. Gundlefinger, (Ind.) 40 N. E. Rep. 1112. Williamson v. Neeves, 94 
 Wis. 656; 69 N. W. Rep. 806; Clinton v. Shugart, 126 Iowa, 179; 101 N. W. 
 Rep. 785. The liability of the parties for taxes is fixed by statute in a number 
 of the States. Thus, in Nebraska a vendor who sells after April first is 
 liable for the taxes of that year. Campbell v. McClure, (Neb.) 63 N. W. 
 Rep. 926. In a case in Michigan in which the lands sold were wild and 
 uncultivated, and the purchaser did not take actual possession, it was held 
 that the taxes for the current year should be divided equally between the 
 purchaser and the seller. Thompson v. Noble, 108 Mich. 26; 65 N. W. 
 Rep. 746.
 
 598 MARKETABLE TITUS TO MAT. ESTATE. 
 
 should pay the taxes accruing between the making o f 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. 70 Where the contract is made 
 after the completion of a public improvement, but before the im- 
 position of an assessment therefor, the purchaser must protect him- 
 self by provision in the contract. 71 A tax sale of the premises 
 made prior to the contract of sale, is an incumbrance which the pur- 
 chaser must remove. 72 
 
 As a general rule the purchaser cannot rescind the contract on 
 the ground that the title is incumbered if he can apply the purchase 
 money to the removal of the incumbrance. 73 If he pays the pur- 
 chase 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 not been 
 paid; he has a right to recover if the incumbrance appears un- 
 satisfied of record. 74 If the vendor produces an abstract showing 
 that the incumbrance has been satisfied, he must further show 
 that the person making such entry had authority for that purpose. 75 
 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. 71 If the contract expressly require that the premises 
 shall be conveyed to the purchaser free and clear of incumbrances, 
 
 'Missouri K. & T. R. Co. v. Pratt (Kans.), 67 Pac. Rep. 464. 
 
 w People v. Gilon, 9 X. Y. Supp. 212. Ante, 124. 
 
 "Green v. Hernz, 37 N. Y. Supp. 887; 2 App. Diy. 255. 
 
 "Post, 304. Pangborn v. Miles, 10 Abb. N. Cas. (N. Y.) 42; Rinaldo T. 
 Houseman, 1 Abb. (N. Cas.) (N. Y.) 312. In Lyon v. O'Kell, 14 Iowa, 233, 
 and Lyon v. Day, 15 Iowa, 469, the court below rejected evidence offered by 
 the defendant that the property was so incumbered that the plaintiff could 
 not perform his contract to convey a good title. This was reversed on appeal. 
 The grounds of the ruling below do not appear. Similar evidence was ex- 
 cluded in Murphy v. Richardson, 28 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 purchaser had 
 been so made was a question to be determined by the jury. 
 
 "Kimball v. Bell. 47 Kans. 757; 28 Pac. Rep. 1015. 
 
 "O'Neill v. Douthett. 40 Kans. 690; 20 Pac. Rep. 493. 
 
 "Rodman v. Williams, 4 Bl. (Ind.) 72.
 
 KECOVER OE DETAIN PURCHASE MONEY ON FAILUEE OF TITLE. 599 
 
 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. 77 
 
 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. 78 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. 79 It has been held that if the vendee is protected 
 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 purchase 
 money merely because such incumbrance exists. As to him, the 
 estate is unincumbered and he must complete the contract. 80 The 
 purchaser cannot, of course, be compelled to pay the purchase 
 money and rest on the promise of the vendor to remove the incum- 
 brance and execute a conveyance afterward. He has a right to see 
 that the purchase money is actually applied to the discharge of the 
 incumbrance.* 1 
 
 "Webster v. Kings Co. Trust Co., 145 N. Y. 275; 39 N. E. Rep. 964, 
 obiter, the purchaser in that case having in fact waived his objections. 
 
 "Herryford v. Turner, 67 Mo. 296. 
 
 '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 
 could 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 
 did not require the knowledge or concurrence of the defendant for its due 
 performance, without notice to him, to maintain an action for the money. 
 Hence, the general rule that where the fact upon which the defendant's 
 liability arises lies peculiarly within the knowledge and privity of the 
 plaintiff, notice thereof must be stated to have been given to the defendant 
 before the commencment of the action." Citing Saund. PI. & Ev. 132; Rex 
 v. Holland, 5 T. R. 621; 2 Saund. 62a. 
 
 80 Wilkins v. Irvine, 33 Ohio St. 138. 
 
 "Billiard Vend. (2d ed.) 277. Wilhelm v. Fimple, 31 Iowa, 131; 7 Am. 
 Rep. 117.
 
 600 MARKETABLE TITLE TO REAL ESTATE. 
 
 246. BUYING WITH KNOWLEDGE OF DEFECT OR INCTJM- 
 BBANCE. 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. 82 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. 83 Where an objection to the title was raised 
 by the purchaser and the vendor agreed to refund the purchase 
 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 constructively 
 evicted. 84 
 
 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. 85 It 
 
 83 Ante, 85, "Waiver of Objections." Allen v. Hopson, 1 Freem. Ch. 
 (Miss.) 276; Wiggins v. McGimpsey, 13 Sm. & M. (Miss.) 532. Where 
 held, also, that the purchaser would be charged with notice of defects from 
 the record. Contra, Daly v. Bernstein, (New Hex.) 28 Pac. Rep. 7G4. 
 
 "Black v. Croft, 51 Ga. 368. McCool v. Jacobus, 7 Rob. (N. Y.) 115. 
 Turney v. Hemmenway, 53 111. 97. In Swindell v. Richey, 41 Ind. 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 suit therefor by the commissioner. In 
 Ganz's Appeal, (Pa. St.) 15 Atl. Rep. 883, it was held that a purchaser 
 might set off 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. 
 
 "Failing v. Osborne, 3 Oreg. 498. 
 
 * Smith v. Haynes, 9 Me. 128.
 
 BECOVEK OB DETAIN PUKCHASE MONEY ON FAILUEE OF TITLE. 601 
 
 may be doubted whether the purchaser would be permitted to 
 detain the purchase money even if he bought, believing that the 
 vendor had 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. 88 
 
 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." 
 
 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. 88 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. 89 In such a case he has neither the right to rescind 
 
 Judson v. Wass, 11 Johns. (N. Y.) 525; 6 Am. Dec. 392. Daly v. 
 Bernstein (New Mex.)' 28 Pac. Rep. 764. 
 
 "Taul v. Bradford, 20 Tex. 264; Hurt v. McReynolds, 20 Tex. 595. 
 
 "Ante, 57. 
 
 "Ewart v. Bowman, 70 S. C. Rep. 357; 49 S. E. Rep. 867. Ellis v. 
 Anderton, 88 N. C. 472. It is true the sale was by an administrator in 
 this case under an order of court, so that the rule caveat emptor applied; 
 but no distinction is perceived between a case in which the purchaser ex- 
 pressly 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. 768; Cooper v. Singleton, 19 
 Tex. 267; 70 Am. Dec. 333. There would seem to be no more doubt about 
 the proposition that the purchaser cannot recover back or detain the pur- 
 chase 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.
 
 602 MARKETABLE TITLE TO EEAL ESTATE. 
 
 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 ca?e the purchaser cannot refuse to complete the 
 contract on the ground that the title is bad.'* But IV; burden Avill 
 be upon the ve'ndor to show that the purchaser took the risk of the 
 title 91 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. 92 The burden will be upon the vendor to show that the 
 purchaser, seeking to detain the purchase money, took the risk of 
 the title. 93 
 
 If 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 
 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. 94 
 
 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, 
 where the condition of the bond has been broken, deprive him of 
 
 90 Ante, 11. Jones v. Taylor, 7 Tex. 240; 56 Am. Dec. 48; Neel Y. 
 Prickett, 12 Tex. 137. Winne v. Reynolds, 6 Paige (N. Y.), 407, dint. 
 Kerney v. Gardner, 27 111. 162. Maxfield v. Bierbauer, 8 Minn. 413 (367). 
 
 91 Littlefield v. Tinsley, 26 Tex. 353. 
 "Ante, 80. 
 
 M Twohig v. Brown, 85 Tex. 55 ; 19 S. W. Rep. 768. 
 
 "Vest v. Weir, 4 Bl. (Ind.) 135. Here the vendor was a mere trespasser 
 on the land. He sold his possession to the plaintiff for $350, telling him, at 
 the time, that he had no title, and that the land belonged to the United 
 States. The decision in this case was approved in Mayors v. Brush, 7 Ind. 
 235, and there distinguished from Hawkins v. Johnson, 4 Bl. (Ind.) 21.
 
 EECOVEE OE DETAIN PUECHASE MONEY ON FAILURE OF TITLE. 603 
 
 the right to recover back the purchase money, eo 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. 95 
 
 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 been 
 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 con- 
 veyance with covenants of warranty. 96 There are, however, several 
 cases in which the opposite view has been taken. 97 
 
 "Hurst v. Means, 2 Sneed (Tenn.), 546. Bellows v. Cheek, 20 Ark. 424. 
 
 "Coleman v. Howe, 5 How. (Miss.) 469; 37 Am. Dec. 164, the court say- 
 ing: "If, then, there has been no fraud, nor any eviction, and the agreement 
 is executed, the vendee can have no claim to relief on the mere ground of a 
 failure of title. 1 Johns. Ch. (N. Y.) 213. But as in the present case the 
 deed has not been delivered, the contract remains executory, and a different 
 rule, it is said, must prevail. This distinction is laid down and supported 
 by the court in the case of Miller v. Long, 3 A. K. Marsh. (Ky.) 335. In 
 that case the right of the vendee to be relieved, where the deed has been 
 delivered, is denied, but it is said (ob. diet.) to be otherwise where the con- 
 tract is executory, to execute the deed in future. In the first case the court 
 recognizes the general rule laid down, that the vendee must resort to his 
 remedy at law upon his covenants. But in cases like the present, where the 
 vendee takes the precaution to secure himself by a penal bond covenanting 
 to convey a title with full covenants, and that appears to be the consideration 
 of his promise to pay the money, though we may consider the covenant to 
 convey as an executory contract, yet it is difficult to conceive how that 
 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. Horne 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. 
 
 47 Hurst v. Means, 2 Sneed (Tenn.), 546. Bellows v. Cheek, 20 Ark. 424. 
 Mobley v. Keys, 13 Sm. & M. (Miss.) 677. Brittain v. McLain, 6 Ired. Eq.
 
 604 MAEKETABLE TITLE TO HEAL ESTATE. 
 
 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 al- 
 ready paid. 98 
 
 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." 
 
 (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. 
 
 "Smith v. Lewis, 26 Conn. 110. Clark v. Weis, 87 111. 438; 29 Am. Rep. 
 60; Hough v. Rawson, 17 111. 588; Smith v. Lamb, 26 111. 396; 79 Am. Dec. 
 381. Sanderlin v. Willis, 98 Ga. 278; 25 S. E. Rep. 437. Kares v. Covell, 
 180 Mass. 206; 62 N. 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 husband, and executed a bond to make title or indemnify the pur- 
 chaser against any claim of the infant. While the contract was yet execu- 
 tory, 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 
 below. This was 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, but given 
 possession of the whole to the purchaser, and, as it appears; the purchaser 
 sought the contract and took the security he required, and he and his heirs 
 remaining in the quiet and peaceable possession of the premises, we can 
 see no reason why he should not pay the purchase money." 
 
 " Kares v. Covell, 180 Mass. 206; 62 N. E. Rep. 244.
 
 EECOVEB OK DETAIN PUBCHASE MONEY ON FAILUEE OF TITLE. 605 
 
 249. INQTJIBY INTO CONSIDERATION OF SEALED INSTBT7- 
 
 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 ven- 
 dor. 1 This rule, however, has been very generally changed through- 
 out the United States by statutes abolishing all distinctions be- 
 tween sealed and unsealed instruments, 2 or allowing failure of 
 consideration to be set up as a defense to an action on an instru- 
 ment under seal. 3 
 
 250. BIGHT TO ENJOIN THE COLLECTION OF THE PTJR- 
 CHASE MONEY WHILE THE CONTBACT 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 
 to make his defense at law. 4 In this respect the rule appears to 
 be 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- 
 
 'Coleman v. Sanderlin, 5 Humph. (Term.) 561. 
 
 *Mullins v. Jones, 1 Head (Term.), 519. 
 
 'Rawle Covts. (5th ed.) 325. 
 
 4 (As to the right 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, 33 Miss. 646; McLaurin v. Parker, 
 24 Miss. 509. Kebler v. Cureton, Rich. Eq. Gas. (S. C.) 143. Bartlett v. 
 Loudon, 7 J. J. Marsh. (Ky.) 641; Dudley v. Byran, 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 corres- 
 pondingly abated. A purchaser paying off incumbrances after the judgment 
 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. Chapin, 2 R. I. 429. Nor if the 
 plaintiff merely seeks damages in equity. Robertson v. Hogshedas, 3 Leigh
 
 606 MABKETABLE TITLE TO REAL ESTATE. 
 
 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. 5 The injunction will not be granted if the difficulty in ob- 
 taining 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. 6 Nor will the in- 
 junction 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. 7 
 
 If the vendor fraudulently concealed or misrepresented the state 
 of his title an injunction will lie to restrain the collection of the 
 purchase money; 8 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 at law. 9 The remedy in equity in such cases is concurrent 
 with that at law. 
 
 (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 happening 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. 
 
 Prout v. Gibson, 1 Cranch (C. C.), 389. 
 
 T Amick v. Bowyer, 3 W. Va. 7 ; Piedmont Coal Co. v. Green, 3 W. Va. 54. 
 Peers v. Barnett, 12 Grat. (Va.) 410, where the injunction suit had lingered 
 on the docket until defects in the title were cured by the statute. 
 
 ' Starke v. Henderson, 30 Ala. 438 ; Lanier v. Hill,. 25 Ala. 554. In both 
 these cases the vendor, an administrator c. *. a., had falsely represented that 
 he had authority under the will to sell. 
 , Post, chs. 29, 34, 329.
 
 EECOVEE OB DETAIN PUECHASE MONEY ON FAILUBE OF TITLE. 607 
 
 In 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 nurchaser until the vendor removes any lien or 
 incumbrance upon the premises for which he is liable. 10 
 
 The remedy by injunction against proceedings to collect the pur- 
 chase money is not necessarily in disaffirmance 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 incumbrances, or to enforce some 
 equity in behalf of the purchaser which does not require a rescis- 
 sion of the contract. 11 In such cases it is customary to grant a 
 temporary injunction, and of course there need be no surrender of 
 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. 12 But while a perpetual 
 injunction substantially rescinds the contract, the complainant 
 must pray a rescission in terms ; othewise it will be presumed that 
 he intends to keep both the premises and the purchase money, and 
 the bill will be dismissed. 13 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." 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 
 
 10 Jackson v. Knight, 4 Watts & Serg. (Pa.) 412. 
 
 "Thus, in Price v. Browning, 4 Grat. (Va.) 72, an injunction was granted 
 until the extent of the purchaser's losses from incumbrances on the premises 
 could be ascertained. And in Reeves v. DicKey, 10 Grat. (Va.) 138, the cause 
 was remanded to the lower court with instructions to grant a temporary 
 injunction until it could be ascertained whether the title could be perfected, 
 and to perpetuate the injunction if it appeared that a good title could never 
 be made. 
 
 "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. 
 
 "Williamson v. Raney, Freem. Ch. (Miss.) 112. 
 
 14 As to right to injunction under similar circumstances where the con- 
 tract has been executed by a conveyance with covenant for title, see post, 
 ch. 34. Reeves v. Dickey, 10 Grat. (Va.) 138. In Lucas v. Chapeze. 2 Litt.
 
 608 MARKETABLE TITLE TO BEAL ESTATE. 
 
 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. 16 * 
 
 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 
 be enjoined until the sufficiency of the title could be determined. 1 ' 
 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. 17 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. 18 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 
 be awarded against the purchaser, the vendor having incurred these 
 by reason of his own default. 19 
 
 (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. 
 
 "Carrico v. Froman, 2 Litt. (Ky.) 178, where the purchaser agreed ia 
 writing that the purchase money should not be detained if adverse claims 
 were asserted. 
 
 "Mitchell v. Sherman, Freem. Ch. (Miss.) 120, where the vendor gave 
 bond to convey " a good and sufficient title, as soon as the entire and full 
 amount of the purchase money should be paid." 
 
 "Jayne v. Brock, 10 Grat. (Va.) 211. McKoy v. Chiles, 5 T. B. Mon. 
 (Ky.) 259, where the vendor failed to procure a relinquishment of his wife's 
 contingent right of dower. Fishback v. Williams, 3 Bibb (Ky.), 342. 
 
 "Moredock v. Williams, 1 Overt. (Tenn.) 325 (257); Moore v. Cooke, 4 
 Hayw. (Tenn.) 85 (281). 
 
 18 Fishback v. Williams, 3 Bibb (Ky.), 342. Each party was decreed to 
 pay his own costs. Porter v. Scobie, 5 B. Mon. ( Ky. ) 387, reversing the court
 
 KECOVEE OE DETAIN PUECHASE MONEY ON FAILUEE OF TITLE. 609 
 251. RIGHTS AGAINST TRANSFEREE OF PURCHASE-MONEY 
 
 NOTE. The purchaser of a negotiable purchase-money note after 
 maturity of course takes subject to the vendee's right of defense for 
 want of title to the land. 20 So, also, one who purchases before 
 maturity with notice of the vendee's equities. 21 But a purchaser 
 for value without notice will not be affected by failure of the ven- 
 dor's title. 22 If the note was not negotiable, the purchaser, whether 
 befere or after maturity, takes subject to equities between the 
 vendor and the vendee. 28 
 
 252. REFUSAL OF VENDOR TO CONVEY FOR WANT OF TITLE. 
 It has been held in England that if the purchaser execute a note to 
 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 take his action to recover 
 damages for breach of the contract. The reason is that the pur- 
 chaser, 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. 24 This rule was recognized in a case in Ne\f 
 York in which the failure of the vendor to convey was occasioned 
 by his want of title. 25 It was unnecessary, however, to decide the 
 point in that case, and it may be doubted whether the rule estab- 
 lished 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. 26 There would seem to be no 
 
 below; Lampton v. Usher, 7 B. Mon. (Ky.) 57. In Reeves v. Dickey, 10 Grat. 
 (Va.) 138, costs were refused the vendor even though the purchaser knew 
 when he bought that the title was defective. 
 
 'Johnson v. Silsfiell, 6 Baxt. (Tenn.) 41. 
 
 =1 Knapp v. Lee, 3 Pick. (Mass.) 452. Lamb v. James, 87 Tex. 485; 29 S. 
 W. Rep. 647. 
 
 M Gee v. Saunders, 66 Tex. 333. 
 
 "Timms v. Shannon, 19 Md. 296; 81 Am. Dec. 632. 
 
 "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 Cow. (N. Y.) 494. Chapmaa. 
 v. Eddy, 13 Vt. 205. 
 
 25 Lewis v. McMillen, 41 Barb. (N. Y.) 430. 
 
 28 It was intimated by PARKE, J., in Spiller v. Westlake, supra, that the de- 
 fendant might have resisted the payment of the note in that case if the cir- 
 cumstances 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. 
 
 39
 
 610 MABKETABLE TITLE TO HEAL ESTATE. 
 
 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. 27 It may 
 be added here, however, that when the vendors title is defective 
 and the vendee, upon ascertaining it, refuses to take such title-and 
 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. 28 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. 29 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 his purchase money or notify 
 the vendor of his intent to rescind the contract before he can main- 
 tain an action to recover back what he had paid. 30 
 
 "Ante, 86. Leach v. Rowley, 138 Cal. 709; 72 Pac. Rep. 403. 
 
 " Hartley v. James, 50 N. Y. 41. In MeCullough v. Boyd, 120 Pa. St. 552 : 
 14 Atl. Rep. 438, it was held that the purchaser must aver payment or tender 
 of the purchase money in full, or set forth a reason for non-payment, before 
 he can recover back such of the purchase money as he may have paid, where 
 by the terms of his contract, he is not entitled to a conveyance until the 
 purchase money has been fully paid. 
 
 ^Linton v. Allen, 154 Mass. 432; 28 N. E. Rep. 780. 
 
 "Gillett v. Maynard, 5 Johns. (N. Y.) 85; 4 Am. Dec. 329; Camp v. Morse. 
 5 Denio (N. Y.), 164; Van Benthuysen v. Crasper, 8 Johns. (N. Y.) 259;
 
 RECOVER OK DETAIN PURCHASE MONEY ON FAILURE OF TITLE. 611 
 
 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 be 
 simultaneous or concurrent acts, the purchaser may resist the pay- 
 ment 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 requires. 81 
 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, without surrend- 
 ering or offering to surrender the premises. 32 If under the contract 
 the purchaser is bound to tender the purchase money before he can 
 rescind, the mere abandonment of the possession without such 
 tender, demand of title and refusal, will constitute no defense to an 
 action for the purchase money. 33 If the contract provide that the 
 purchase money shall not be paid until a good title is tendered, or 
 if the vendor permits the purchaser to take possession without any 
 agreement as to when the purchase money shall be paid, the pur- 
 chaser cannot be required to tender performance or bring the 
 money into court, as a condition precedent to his right to rescind 
 the contract on failure of the title. 34 
 
 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; 35 the. reasons being, among others, that the vendor may 
 
 Frost v. Smith, 7 Bosw. (N. Y.)' 108. Chatfield v. Williams, 85 Cal. 518; 
 24 Pac. Rep. 839. 
 
 "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.) 15; 
 Sage v. Ranney, 2 Wend. (N. Y.) 534. Peques v. Mosby, 7 Sm. & M. (Miss.) 
 340. But see McMath v. Johnson, 41 Miss. 439, and cases cited infra. 
 
 "Cases cited in last note. George v. Stockton, 1 Ala. 136. 
 
 * Clemens v. Loggins, 1 Ala. 622. 
 
 "2 Warvelle Vend. 915, 916. 
 
 "Ante, 88. Post, ch. 32. 2 Warvelle Vend. 843. Gibson v. Newman, 1 
 How. (Miss.) 341; Coleman v. Rowe, 5 How. (Miss.) 4GO: 37 Am. Dec. 164; 
 Clopton v. Bolton, 23 Miss. 78; McMath v. Johnson, 41 Miss. 439, disapprov- 
 ing Peques v. Mosby, 7 S. & M. (Miss.) 540, and Feemster v. May, 13 S. & M. 
 (Miss.) 275; 53 Am. Dec. 83. Drenner v. Boyer, 5 Ark. 497. Monsen v.
 
 612 MARKETABLE TITLE TO BEAL ESTATE. 
 
 perfect the title before all of the purchase money is paid j 36 and that 
 it may be that he looks to the purchase money itself as a fund for 
 the removal of objections to the title. 37 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 conditioned 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 incapacitating himself from 
 conveying to the purchaser, that fact constitutes no defense to an 
 action for the purchase money. The purchaser must pay the pur- 
 chase money and look to his remedy on the title bond. 38 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 and convey the premises to 
 whom he chooses, and the purchaser cannot, upon such conveyance, 
 
 Stevenson, 56 111. 335. Hudson v. Swift, 20 Johns. (N. Y.) 25. This, how- 
 ever, was an action to recover back the purchase money; but the principle 
 appears to be the same in either case. Ellis v. Hoskins, 14 Johns. (N. Y.) 
 363. Loveridge v. Coles, 72 Minn. 57; 74 N. W. Rep. 1109. 
 
 "Greenby v. Cheevers, 9 Johns. (N. Y.) 127. 
 
 "Green v. Green, 9 Cow. (N. Y.) 46; Ellis v. Hoskins, 14 Johns. (N. Y.) 
 363. 
 
 58 Foster v. Jared, 12 111. 454, the court saying: "The conveyance of the 
 land and 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 accept a conveyance until all the notes are paid. The doctrine that in the 
 case of dependent covenants neither party can recover unless he has fully per- 
 formed or offered to perform on his part has, therefore, no application to this 
 case. The defendant cannot put the vendor in default until he has paid or 
 offered to pay the entire purchase money. He undertook to pay the first two 
 installments before he was to receive a conveyance. He chose, as respects 
 this 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 good title. It will be enough 
 if he has the title when the defendant has the right to demand a conveyance. 
 He may require a perfect title before he can be called on to convey." Citing 
 Sage v. Eanney, 2 Wend. (N. Y.) 532.
 
 RECOVER OR DETAIN PURCHASE MONEY ON FAILURE OF TITLE. 613 
 
 recover back any of the payments made. The vendor by his con- 
 duct forfeits what has been paid. 39 
 
 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 bo 
 made as a condition precedent to the right to rescind upon an abso- 
 lute and undisputed failure of the title. 40 This rule applies as well 
 where the purchaser has only an " option " to purchase as where 
 the purchase has been actually made. 41 
 
 254. OFFER TO RESCIND. As a general rule the action to 
 recover back the purchase money on failure of the title, or a defense 
 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 sur- 
 render whatever he has received under the contract. 42 The reason 
 of the rule is that the vendor must be given an opportunity to re- 
 move objections to the title and to perform the contract on his part. 
 It has been held, however, that if the purchaser did not take pos- 
 session and has received nothing under the contract, he may recover 
 back or detain the purchase money without an offer to rescind. 43 
 
 255. PLEADING AND PROOF. It has been held that the pur- 
 chaser 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 insufficient. 44 
 But if the contract be executory and the objection to the title is 
 that it is doubtful or unmarketable, the better opinion seems to be 
 
 39 Rounds v. Baxter, 4 Me. 454. Seymour v. Dennett, 14 Mass. 266. 
 
 " Ante, this section. 
 
 41 Burke v. Davies, 85 Cal. 110. 
 
 12 1 Sugd. Vend. (14 th ed.) 243; 2 Warvelle Vend. 883. Herbert v. Stan- 
 ford, 12 Ind. 503, citing Pope v. Wray, 4 M. & W. 451. McQueen v. State 
 Bank, 2 Ind. 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 Ohio, 201. Mullins v. Bloomer, 11 Iowa, 360. Carney 
 v. Newberry, 24 III. 203, case of personal property. 
 
 "Herbert v. Stanford, 12 Ind. 503, and cases cited supra. 
 
 "Walker v. Towns, 23 Ark. 147. Copeland v. Lawn, 10 Mo. 266. In an 
 action to recover purchase money, a plea that the vendor had no title when 
 he was required to convey, and that the premises were incumbered by a 
 mortgage, is bad for duplicity. Camp v. Morse, 5 Den. (N. Y. ) 161.
 
 614 MABKETABLE TITLE TO BEAL ESTATE. 
 
 that the burden of proof is on the vendor to show prima facie that 
 the title is good. 45 But, obviously, the vendor cannot be compelled 
 to show the non-existence of any and every fact which might in- 
 validate his title, for there would be practically no end to such an 
 inquiry. He could hardly be compelled to offer proof of the com- 
 petency 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 com- 
 plains/ 6 
 
 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. 47 
 
 "Negley v. Lindsey, 67 Pa. St. 217; 5 Am. Rep. 427, SHABSWOOD, J., saying: 
 " How can a defendant (purchaser) show defects in the plaintiff's title unlesa 
 it is 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 
 necessary facts as to which the records will give him no information, such 
 as descents under the intestate laws, the death of tenants for life, and others 
 of a similar kind." 
 
 "Ante, 117. Hollifield v. Landrum, (Tex. Civ. App.) 71 S. W. Rep. 979, 
 citing the text. 
 
 "Snevily v. Egle, 1 Watts & S. (Pa.) 480.
 
 CHAPTER XXV. 
 
 OF THE OBLIGATION OF THE PURCHASER TO RESTORE THE PREM- 
 ISES 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. PUR- 
 CHASER'S LIEN. 261. 
 
 OTHER EXCEPTIONS. 262. 
 
 RESTORATION OF THE PREMISES WHERE THE CONTRACT IS 
 VOID. 263. 
 
 256. GENERAL PRINCIPLES. The next cardinal rule which 
 \ve 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 back the purchase money on failure of the title, or resist 
 the payment thereof, without restoring, or offering to restore the 
 premises to the venddr, and placing him in statu quo. 1 
 
 M Sugd. Vend. m. p. 407, 472 (6th Am. ed.), Nicolson v. Wadsworth, 2 
 Swanst. 365 ; Wickham v. Ernest, 4 Madd. 34 ; Young v. Sincombs, 1 Younge, 
 275; Tindal v. Cobham, 2 Myl. & K. 385. Cope v. Williams, 4 Ala. 362; 
 Donaldson v. Waters, 30 Ala. 175; Lett v. Brown, 56 Ala. 550; Wade v. 
 Killough, 3 Stew. & P. (Ala.) 431; George v. Stockton, 1 Ala. 136; Clemens 
 v. Loggins, 1 Ala. 622; Stone v. Gover, 1 Ala. 287; Tankersly v. Graham, 8 
 Ala. 247; Helvenstein v. Higgason, 35 Ala. 259; Eads v. Murphy, 52 Ala. 520; 
 Svoly v. Scott, 56 Ala. 555; Union Stave Co. v. Smith, 116 Ala. 416; 22 
 So. Rep. 275. Peay v. Capps, 27 Ark. 160. Haynes v. White, 55 Cal. 39; 
 Hicks v. Lovell, 64 Cal. 29; 49 Am. Rep. 679; 27 Pnc. Rep. 042; Gates v. 
 McLean, 70 Cal. 42; 11 Pac. Rep. 489; Hannan v. McNickle, 82 Cal. 122; 23 
 Pac. Rep. 271; Rhorer v. Bila, 83 Cal. 54; 23 Pac. Rep. 274; Worley v. North 
 <>ott, 91 Cal. 512; 27 Pac. Rep. 767. Booth v. Saffold, 46 Ga. 278; Cherry 
 v. Davis, 59 Ga. 454; Summerall v. Graham, 62 Ga. 729; Preston v. Walker, 
 109 Ga. 290; ?4 S. E. Rep. 571. Martin v. Chambers, 84 111. 579; Long v. 
 Saunders, 88 111. 187. Osborn v. Dodd, 8 Bl. (Ind.) 467; Vright v. Biackley,
 
 616 MARKETABLE TITLE TO EEAL ESTATE. 
 
 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." 2 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 So long 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 
 back purchase money while he is in possession of the land is, that 
 such a suit is a disaffirmance of the contract, and he cannot dis- 
 affirm the contract and at the same time have its benefit by retain- 
 ing the possession. 5 And when the vendee is sued for the purchase 
 
 3 Ind. 101; Wiley v. Howard, 15 Ind. 169. Dunn v. Mills (Kan.), 79 Pac. 
 Rep. 146, 502; 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 T. Lockett, 107 La. 270; 31 So. Rep. 751. Hill v. Samuel, 31 Miss. 307; 
 Shipp y. Whelers, 33 Miss. 647. Holladay v. Menefee, 30 Mo. App. 207; 
 Davis v. Watson, 89 Mo. App. 15. More v. Smedburg, 8 Paige Ch. (N. Y.) 
 600; Gale v. Nixon, 6 Cow. (N. Y.) 445; Lewis v. McMillan, 41 Barb. (N. Y.) 
 420; Wright v. Delafield, 23 Barb. (N. Y.) 498. Tompkins 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 Pac. Rep. 488. 
 Florence Oil Co. v. McCandless, 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. Mc- 
 Millan, 31 Barb. (N. Y.) 395; reversed on motion for new trial, 41 Barb. 
 (N. Y.) 420. In Hood v. Huff, 2 Tread. (S. C.) the contract had been exe- 
 cuted. 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. 
 
 * More v. Smedburgh, 8 Paige ( N. Y. ) , 600, 606. 
 
 3 Congregation v. Miles, 4 Watts (Pa.), 146. 
 
 4 Bellamy v. Ragsdale, 14 B. Mon. (Ky.) 293. Thompson v. Drellis, 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. 
 
 Hurst v. Means, 2 Swan (Tenn.), 594.
 
 OBLIGATION OF PUKCHASEB TO RESTORE PREMISES TO VENDOR. 617 
 
 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 pur- 
 chase money, and at the same time insist upon a conveyance of the 
 lands. He 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. 6 
 
 This rule is also an excellent practical test of the bona fides of 
 the purchaser in raising objections to the title when no adverse 
 claimant is threatening his possession. If, under such circum- 
 stances, he does not offer to restore the premises to the vendor, it 
 will, in most cases, be found that his objections are nice and cap- 
 tious and have been searched out for the purpose of gaining time, 
 when sued for the purchase money. 
 
 But while the purchaser cannot recover back the purchase money 
 so long as he retains the possession of the premises, it is not neces- 
 sary that he be evicted by an adverse claimant before he can assert 
 that right. He may, at any time, unless he has waived his objec- 
 tions to the title or unless the vendor has a right to perfect the 
 title, deliver up the possession to the vendor and demand a return 
 of the purchase money paid, or defend an action for that which 
 remains unpaid. 7 
 
 While the purchaser cannot, where he has elected to rescind the 
 contract, recover back the purchase 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 premises, and recover the 
 purchase price as damages, if the title has completely failed. 8 If 
 this decision be sound, the rule that the purchaser seeking to re- 
 cover 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 
 
 Watkins v. Hopkins, 13 Grat. (Va.) 743; Shiflett v. Orange Humane 
 Society, 7 Grat. (Va.) 297. 
 
 7 2 Sugd. Vend. (7th Am. ed.) 126, note. Timms v. Shannon, 19 Md. 296; 
 81 Am. Dec. 632. 
 
 Ante. 3. Fletcher v. Button, 6 Barb. (N. Y.) G4f.
 
 618 MAEKETABLE TITLE TO SEAL ESTATE. 
 
 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 im- 
 provements 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 purchaser, 
 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 forfeited, or in which, by reason of moneys expended in improve- 
 
 Ante, 1. Clarke v. Locke, 11 Humph. (Tenn.) 300. 
 
 '1 Sugd. 'Vend. m. p. (14th Eng. ed.) 347. Gates v. McLean, 70 Cal. 
 42. See generally, as to the right of the vendor to maintain ejectment againat 
 a purchaser who refuses to pay the purchase money, Jackson v. Moncrief, 5 
 Wend. (N. Y.) 26. Hawn v. Norris, 4 Binn. (Pa.) 77; Mitchell v. De Roche, 
 1 Yeates (Pa.), 12. Marlin v. Willink, 7 S. & R. (Pa.) 297. Browning 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 succinctly 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 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 course, he is 
 liable to an action of ejectment by the vendor. 
 
 11 Cherry v. Davis, 59 Ga. 454. Gates v. McLean, 70 Cal. 42.
 
 OBLIGATION OF PURCHASER TO RESTORE PREMISES TO VENDOR. 619 
 
 ments, or from other causes, it would be inequitable to deprive the 
 purchaser of the possession. 12 We have already seen that the pur- 
 chaser 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. He must surrender the posses- 
 sion before he will be permitted to litigate or dispute the vendor's 
 title. 13 
 
 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 agree- 
 ment to convey within a reasonable time after the sale is not a con- 
 dition 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, but 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. 15 But 
 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, unless he is liable to account 
 to the true owner for the rents and profits. 1 * In a case of an exe- 
 
 13 Estell v. Cole, 52 Tex. 170. 
 
 13 Ante, 202, 219. Isler v. Eggers, 17 Mo. 332; Harvey v. Morris, 63 Mo. 
 475; Pershing v. Canfield, 70 Mo. 140. 
 
 14 Stone v. Cover, 1 Ala. 287. 
 
 "Post, eh. 30, 279. Guttschlick v. Bank, 5 Cranch (C. C. U. S.), 435. 
 In Concord Bank v. Gregg, 14 N. H. 331, a mill on the purchased premises 
 wag destroyed after it had been conveyed to the purchaser, but the loss hav- 
 ing occurred without fault on his part, and there being nothing to show that 
 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. 
 
 18 Shackelford v. Handly, 1 A. K. Marsh. (Ky.) 500; 10 Am. Dec. 753. 
 
 17 Collins v. Thayer, 74 111. 138; Whitney v. Cochran, 1 Scam. (111.) 209.
 
 620 MARKETABLE TITLE TO REAL ESTATE. 
 
 euted contract, as lias been seen, 18 the rents and profits, unless re- 
 coverable 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 delivered to the pur- 
 chaser the vendor could not be put in statu quo by restoring the 
 premises to him, 19 but this doctrine seems to have gained no foot- 
 hold in America, where th,e right to rescind has generally been 
 allowed on failure of the title, notwithstanding delivery of pos- 
 session to the vendee. 20 If, instead of seeking to rescind the con- 
 tract 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 surrender the premises. 21 
 If, in such case, he had paid the purchase money, the measure of 
 his damages would be the difference between the value of the prem- 
 ises with a good title and their value as the title actually was. 
 
 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 away the premises to a stranger. 22 
 
 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. 23 " 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 
 
 "Ante, 172. 
 
 "Hunt v. Silk, 5 East, 449. Blackburn v. Smith, 2 Exch. 783. 
 
 ^Taft v. Kessel, 16 Wis. 278. 
 
 21 Stockham v. Cheney, 62 Mich. 10. 
 
 2J Rodgers v. Olshoffsky, 110 Pa. St. 147; 2 Atl. Rep. 44; McKeen v. Beaup- 
 land, 33 Pa. St. 488. Strong v. Lord, 107 111. 26. Where the purchaser's note 
 contained an indorsement that it was not to be paid unless the title proved to 
 be good, and the purchaser resisted payment on the ground that the title to a 
 part of the land had failed, but did not seek to rescind the contract, it was 
 held that he could not be compelled to pay the note until the title should be 
 made good, though he had conveyed away a part of the land. Smeich v. 
 Herbst, 135 Pa. St. 539; 19 Atl. Rep. 950. 
 
 33 Johnson v. Burnside, (S. D.) 52 N. W. Rep. 1057.
 
 OBLIGATION OF PURCHASES TO RESTORE PREMISES TO VENDOR. 621 
 
 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 ver- 
 dict. 24 Where, however, courts of law have no jurisdiction to 
 direct a surrender of the premises before the judgment or verdict 
 shall become operative, it is apprehended that the purchaser'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. 25 
 
 259. RULE 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. 26 The ap- 
 
 "Sizemore v. Pinkston, 51 Ga. 398. In Taft v. Kessel, 16 Wis. 297, it was 
 said : " There seems to be no objection to a rule allowing a purchaser, brought 
 into court as 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 be disposed of by the judgment, which can be so framed as to 
 adjust the rights of both parties upon equitable terms." This was 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. 
 
 K Young v. Harris, 2 Ala. (N. S.) 108. In an action to recover back the 
 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. 
 
 =*In Cans 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 ven- 
 dor 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
 
 622 MARKETABLE TITLE TO EEAL ESTATE. 
 
 plication of this doctrine in an action in which the purchaser seeks 
 either to recover back the purchase money or to detain 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 an- 
 other and independent action to do that which might be accom- 
 plished in one. It has been held in the same State, in several case?, 
 that the purchaser cannot, on failure of the title, recover back the 
 purchase money without offering to return the premises to the 
 vendor. 27 
 
 260. 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. 28 There are cases which, at the first 
 
 the possession and declare his determination to abandon the contract. And 
 for not having done so 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? Not 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 
 was best known to himself, and if he found the defect in his title to be irre- 
 parable what was he to do? Certainly, not to bring an action for the pur- 
 chase 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, Xicoll v. Carr, 35 Pa. St. 381. 
 
 17 Morrow v. Rees, 69 Pa. St. 368; Pearsoll v. Chapin, 8 Wright (Pa.), 9; 
 Babcock v. Case, 61 Pa. St. 427; 100 Am. Rep. 654; Wright v. Wright, 12 
 Pa. Co. Ct. Rep. 238. 
 
 "Wimberg v. Schwegeman, 97 Ind. 528; Vance v. Shroyer, 79 Ind. 380; 
 Wiley v. Howard, 15 Ind. 169. Vining v. Leeman, 45 111. 246; Whitlock v. 
 Denlinger, 59 111. 96: Laforge v. Matthews, 68 111. 328. Fratt v. Fiske, 7 
 Cal. 380. Lett v. Brown, 56 Ala. 550. Brannum v. Ellison. 5 Jones Eq. (N. 
 C.) 435. Staley v. Ivory, 65 Mo. 74. Linsey v. Ferguson, 3 Lans. (N. Y.) 
 196. Underwood v. Parker, (Ky.) 7 S. W. Rep. 626. Goodin v. Decker, 
 (Colo.) 32 Pac. Rep. 832. 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
 
 OBLIGATION OF PUBCHASEE TO EESTOBE PBEMISES TO VENDOB. 623 
 
 glance, might appear to countenance such a doctrine, but upon 
 closer examination it will be found that they establish nothing be- 
 yond 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 com- 
 pelled to give up, or to offer to give up, the possession 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. 29 
 
 But the rule that the purchaser electing to rescind the contract 
 must restore the possession 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 given in con- 
 sideration of the quit claim without surrendering the premises to 
 
 cannot allege his own fraud 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 
 profitale 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 prop- 
 erty, unless it is utterly worthless. Morrow v. Rees, 69 Pa. St. 372. 
 
 M Coffee v. Xewson, 2 Kelly (Ga.), 442. 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 afford- 
 ing 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 representations 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 falsehood of which he had not the means of 
 ascertaining and could not have ascertained by reasonable diligence, is in- 
 duced to invest his money in the purchase of land, or has made on the faith 
 of such purchase, valuable and lasting improvements, he can have relief in
 
 624 MARKETABLE TITLE TO EEAL ESTATE. 
 
 the payee. 30 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 fraudulently mis- 
 represented or concealed the state of the title. 31 
 
 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. 32 
 
 | 261. WHEN PURCHASES, NEED NOT RESTORE THE PREM- 
 ISES. 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. 33 Kor does any such obliga- 
 tion rest upon him if, through mistake or fraud on the part of the 
 vendor, he purchased his own property. 34 The most important 
 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 
 
 chancery before an eviction and without an abandonment of the possession." 
 See, also, Whitworth v. Stuckey, 1 Rich. Eq. (S. C.) 408. 1 Sugd. Vend. m. 
 p. 247. In Greenlee v. Gaines, 13 Ala. 198; 48 Am. Dec. 49, it was held that 
 the purchaser need not surrender the possession if the fraudulent vendor were 
 insolvent, and the detention of the premises was necssary for his (the pur- 
 chaser's) indemnity. 
 
 Watson v. Kemp, 41 Ga. 586. 
 
 "Hammers v. Hannick, 99 Tex. 412; 7 S. W. Rep. 345, citing Taylor Land- 
 lord & Tenant, 416, 514. 
 
 Coburn v. Haley, 57 Me. 347 ; Wyman v. Heald, 17 Me. 329. 
 
 31 Johnson v. Burnside, (S. D.) 52 N. W. Rep. 1057. Elliott v. Boaz, 9 Ala. 
 772; Smith v. Robertson, 23 Ala. 324. Culbertson v. Blanchard, 79 Tex. 486; 
 15 S. W. Rep. 700. 
 
 14 Phillips v. O'Neal, 87 Ga. 727; 13 S. E. Rep. 819. "This," says Mr. 
 Washburn, " is but little 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 is executory as fast as the purchase money is paid in, it 
 is a part performance of such contract, and to that extent the payment 
 of the money, in equity, transfers to the purchaser the ownership of a corre- 
 sponding 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 brought for the purpose. It cannot 
 be reached by a collateral proceeding. 2 Washb. Real Prop. 93 (509).
 
 OBLIGATION OF PURCHASER TO RESTORE PREMISES TO VENDOR. 625 
 
 damages for his breach of the contract. 85 In such case, however, the 
 burden devolves on the purchaser to show that the vendor is insol- 
 vent or unable to answer in damages. 36 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. 87 
 
 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. 38 Of course, such a lien 
 could not prevail against the true owner, 39 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 
 
 * Duncan v. Jeter, 5 Ala. 604; 39 Am. Dec. 342; Read v. Walker, 18 Ala. 
 323; Garner 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 r. 
 Shirley, 7 Bl. (Ind.) 452. COLCOCK, J., in Rutledge v. Smith, 1 McCord Ch. 
 (S. C.) 402. 
 
 M Wyatt v. Garlington, 56 Ala. 576. 
 
 "Parks v. Brooks, 16 Ala. 529. 
 
 W 2 Sugd. Vend. (14th ed.) 672; 2 Warvelle Vend. 884; 2 Story Eq. Jur. 
 5 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 Hayw. 
 (Tenn.) 148; Pilcher 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. W7Rep. 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. 
 
 "Thus, in McWilliams v. Jenkins, 72 Ala. 480, it was held that the pur- 
 chaser's lien could only extend to such lands, or portions thereof, as the ven- 
 dor had the legal right to convey, and that, having no right to convey his 
 homestead lands, the purchaser could have no lien thereon, as against the 
 claim of the vendor's children, for the rents while the purchaser was in pos- 
 session. And in Scott v. Battle, 84 N. C. 184, a purchaser, whose deed was 
 void because executed by a married woman alone and without privy examina- 
 tion, was denied a lien upon the land for the purchase money paid. 
 
 40
 
 626 MAEKETABLE TITLE TO REAL ESTATE. 
 
 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 purchaser will not be entitled- to a 
 lien, as against a subsequent bona fide purchaser, without notice of 
 his rights. 40 But, as against a subsequent purchaser with notice, 
 his lien will be enforced. 41 The purchaser's lien will, after a time 
 given the vendor for repayment has expired, be enforced by sale 
 of the land. 42 If the purchaser be able to follow and identify the 
 purchase money paid by him, he may impress it with a trust. 43 
 But it seems, that the purchaser has no lien on the purchase money 
 after it has been appropriated by the vendor, even though the 
 latter fraudulently concealed the state of the title. 44 Nor, will he 
 be allowed a lien on the land as against subsequent judgment 
 creditors of the vendor; his contract not having been recorded, as 
 required by statute to charge subsequent purchasers and creditors 
 with notice. 45 
 
 The purchaser is also entitled to the value of any improvements 
 placed by him on the premises, less the fair rental of the property 
 while in his possession. 46 
 
 262. OTHER EXCEPTIONS. The rule that the purchaser can- 
 not detain the purchase money without restoring the possession, of 
 course does not apply where the title fails to part of the premises 
 only, and the purchaser does not seek a rescission but elects to take 
 suck title as the vendor can make, with abatement of the purchase 
 money as to that part to which the title has failed. 47 
 
 44 Chase v. Peck, 21 N. Y. 581, 585, dictum. 
 
 "Clark v. Jacobs, 56 How. Pr. (N. Y.) 519. 
 
 * Jett v. Locke, 5 J. J. Marsh. (Ky.) 591. 
 
 43 Ross v. Davis, 122 N. C. 265; 29 S. E. Rep. 338. 
 
 "2 Sugd. Vend. (8th Am. ed.) 200. 
 
 48 Newberry v. French, 98 Va. 479-; 36 S. E. Rep. 519. 
 
 "Florence Oil Co. v. McCandless, 26 Colo. 534; 58 Pac. Rep. 1084. 
 
 "Walker v. Johnson, 13 Ark. 522; Wheat v. Dotson, 7 Eng. (Ark.) 699. 
 Smeech v. Herbert, 135 Pa. St. 539; 19 Atl. Rep. 950. Compare Lewis v. 
 McMillan, 31 Barb. (N. Y.) 395; 41 Barb. (N. Y.) 420. A representation 
 by the vendor that the purchaser would have the privilege of building to a 
 brick wall on the adjoining lot of a third person, is not one which affects the 
 title to the lot sold; hence the purchaser may, without restoring the lot to 
 the vendor, set up the non-existence of the easement as a defense, pro tanto, 
 to an action for the purchase money. Noojin v. Carson, 124 Ala. 458; 27 
 So. Rep. 490.
 
 OBLIGATION OF PUBCHASEB TO BESTOEE PREMISES TO VENDOE. 627 
 
 It sometimes happens that the purchaser in good faith seeks to 
 detain the purchase money without intending or desiring to rescind 
 or abandon the contract, and with no intent to avail himself of 
 the want of title as a mere excuse for detaining both the purchase 
 money and the possession of the premises, as where suit against 
 the purchaser has been begun or threatened by an adverse claim- 
 ant: In such case it seems that the purchaser, anxious to preserve 
 his bargain, may detain both the premises and the unpaid pur- 
 chase money, the contract being executory, until the rights of the 
 adverse claimant can be determined. Thus, where the purchaser, 
 a woman, was sued for a balance of the purchase money and she 
 filed an answer alleging that she had been sued in trespass by an 
 adverse claimant of the land, whose title she was informed and 
 believed was paramount to that of her vendor, and prayed that 
 the vendor's suit against her might be stayed until the trespass 
 suit was determined, it was held that the answer presented a good 
 defense, though there was no offer to restore the premises to the 
 vendor. 48 
 
 It has been held that a purchaser in possession of the premises 
 resisting the payment of the purchase money on the ground that 
 the title is bad, must show affirmatively the existence of a para- 
 mount title in a third person in order to sustain that defense. 49 
 It might, perhaps, be inferred from these cases that if the pur- 
 chaser were able to establish the existence of the paramount title, 
 he might detain the purchase money without surrendering the 
 possession of the premises. If such be the effect of these decisions, 
 they are opposed to the current of authority in England and 
 America. It is true that it has been held that a purchaser in 
 possession under an executory contract cannot enjoin the collection 
 
 "Gober v. Hart, 36 Tex. 139, the court saying: " In this case the appellant 
 purchased the land and paid a large proportion of the purchase money, and 
 went into possession of the purchased premises; and she had a right to retain 
 the same as against her vendors until a tender of a good and valid title ; and 
 in order to make her defense a good one she was not bound to make an offer 
 to restore possession, as she did not seek to rescind the contract of sale, but 
 sought to have it perfected in good faith, according to the contract of sale 
 and purchase. She does not resist the payment of the note, but only asks that 
 the enforcement of the payment be stayed until appellees can make her a good 
 title; and this she had a right to ask, and it should have been granted her." 
 
 "Cantrell v. Mobb, 43 Ga. 193; Sawyer v. Sledge, 55 Ga. 152. In both 
 cases the contract was executory.
 
 628 MAEKETABLE TITLE TO EEAL ESTATE. 
 
 of the purchase money merely because the vendor has no title, or 
 a defective title, 50 unless the vendor has been guilty of fraud, 51 or 
 is insolvent and unable to respond in damages for breach of the 
 contract. 52 But these cases, it is to be observed, do not militate 
 against the right of the purchaser to rescind the contract and re- 
 cover back the purchase money, as a general rule, if the title is bad 
 or unmarketable. They merely deny his right to do either so long 
 as he remains in the undisturbed possession and enjoyment of the 
 premises. There are cases, however, which deny the right of the 
 purchaser to deliver up the possession and recover back or detain 
 the purchase money where the title is bad or doubtful, unless the 
 vendor is insolvent. 53 It seems impossible to reconcile such de- 
 cisions with the rule that a purchaser cannot be required to take 
 a doubtful title, or one that will probably involve him in litigation. 
 263. RESTORATION OF THE PREMISES WHERE THE CON- 
 TRACT IS VOID. In some cases it has been held that if the con- 
 tract for the sale of the land was void, e. g. f within the Statute 
 of Frauds, the purchaser might recover back his purchase money 
 without surrendering the possession of the land to the vendor, the 
 reason assigned being that there is no contract to rescind. 54 Such 
 
 " Blanks v. Walker, 54 Ala. 117. 
 
 "Id. Young v. Harris, 2 Ala. 108; Elliott v. Boaz, 9 Ala. 772; Bonham T. 
 Walton, 24 Ala. 514. 
 
 "Kelly v. Allen, 34 Ala. 663; Magee v. McMillan, 30 Ala. 420; McLemore 
 v. Mabson, 20 Ala. 137. 
 
 ** Hancock v. Cloud, 65 Ga. 208. This was an action to recover the pur- 
 chase money of land, the contract being still executory. The purchaser had 
 bought from one who had purchased at his own sale as administrator, and 
 finding the title doubtful for that reason, had offered to pay the purchase 
 money if the heirs would ratify the sale, and, in default of such ratification, 
 to rescind and give up the possession; and his plea showed these facts. The 
 plea was stricken out, and the purchaser was required to perform the contract 
 on the ground that it did not appear that the sureties on the administrator's 
 bond were insolvent or that the purchaser had been or ever would be dis- 
 turbed in the possession of the land. Plainly the effect of such a decision 
 might be to compel the purchaser to buy a lawsuit. 
 
 64 Barickman v. Kuykendall, 6 Bl. (Ind.) 21. McCracken v. San Francisco, 
 16 Cal. 591, 628. COPE, J., dissenting. Hurst v. Means, 2 Swan (Tenn.), 
 594. In Wiley v. White, 3 Stew. & Port. (Ala.) 355, 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
 
 OBLIGATION OF PUBCHASEE TO EESTOEE PEEMISES TO VENDOB. 629 
 
 a reason is eminently unsatisfactory. It is difficult to perceive 
 how the purchaser can have any greater rights under an illegal 
 contract .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 expense 
 and vexation of an action of ejectment or unlawful detainer to 
 regain possession of the premises, when circuity of action might 
 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. 55 
 
 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. 
 
 55 Cope v. Williams, 4 Ala. 362, where it was said by COOLIEB, 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 does 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 the 
 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 to 
 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 this 
 case the purchaser had given up the possession, and it was not decided that 
 the mere invalidity of the contract would justify the 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, (a) 
 
 GENERAL RULE. 264. 
 
 QUALIFICATIONS OF THIS RULE. 265. 
 
 BREACH OF COVENANT AS TO PART OF THE PREMISES. 266. 
 
 264. GENERAL RULE. 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. 1 
 ^o case 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. 2 And in many of the States the rule ft established that if 
 
 (a) 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. 
 
 ^eebe v. Swartwout, 3 Gil. (111.) 168; Ohling v. Luitjens, 32 111. 23. 
 
 2 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- 
 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
 
 DETENTION OF PUECHASE MONET. 631 
 
 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- 
 
 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 distinctly 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 a 
 court of equity has no authority to grant the relief prayed. The vendee in 
 such case must rely on the covenants contained in his deed." In the case of 
 Simpson v. Hawkins, 1 Dana ( Ky. ) , 305, 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 fraud. 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 conv 
 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 
 of 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 
 by the court: "This is the case of an executed contract, where the convey- 
 ance has keen made and accepted with warranty of title, and possession de- 
 livered and uninterruptedly enjoyed, without eviction or molestation. In such 
 a case a bill for the dissolution of the contract and the payment of the 
 consideration enjoined cannot be sustained except in the case of fraud, in- 
 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."
 
 632 MARKETABLE TITLE TO EEAL ESTATE. 
 
 ises or forced to discharge an incumbrance thereon, he may set up 
 that fact as a defense by way of counterclaim or recoupment in 
 an action for the purchase money. 3 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 principles 
 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. 4 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. 5 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. 6 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 
 where there has been a total failure of the title, upon reconveying 
 or offering to reconvey the premises to the grantor, justify us, it 
 is believed, in laying down the following proposition: 
 
 PEOPOSITION III. If the contract has been executed by a con- 
 veyance with a covenant of seisin or of good right to convey, and 
 
 Ante, 180. 
 4 Post, S 271. 
 Ante, p. 189, 190. 
 Post, 331.
 
 DETENTION OF PUECHASE MONEY. 633 
 
 it clearly appears that the covenantor had no title, the 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 in statu quo. 1 
 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 
 
 T Owens v. Rector, 44 Mo. 390, 392. McDaniel v. Bryan, 8 111. Rep. 273. 
 Mudd 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. Kurd, 7 
 Minn. 356 (282). Buell v. Tate, 7 Bl. (Ind.) 55; Marvin v. Applegate, 18 
 Ind. 425. McDunn v. DCS Moines, 34 Iowa, 467; Beard v. Dulaney, 35 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, 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 doubted by Mr. 
 Dart. Dart Vend. (5th ed.) 792. In Lawless v. Collier, 19 Mo. 480, it was 
 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 has been defeated, and the grantee or his assigns 
 hold by a tifle adverse to that acquired from their grantor, and that in such 
 case 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 such recovery. It is true these principles were 
 declared in an action for breach of the covenant of seisin, but they are fully 
 as applicable where such breach is 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 was 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 set up in foreclosure proceedings, counterclaim for a breach 
 of the covenant of seisin, though he was in the undisturbed possession of the 
 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
 
 634 MABKETABLE 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 bj 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 
 
 not appear. The grantee had resold and conveyed the premises, arid when 
 sued for the purchase money, set up want of title as a defense. The court 
 said: "He (the original grantee) cannot withold the purchase money, and 
 still retain the plaintiff's title, whatever it was, which he obtained 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 
 Mover v. Shoemaker, 5 Barb. (N. Y.) 319, it was held that the covenantec 
 could not maintain assumpsit 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, was 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; Noonan 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
 
 DETENTION OF PURCHASE MONEY. 635 
 
 in him." 8 These views, undoubtedly at variance with the current 
 of American authority, find support in a number of adjudicated 
 cases.' 
 
 The equity of this rule is undeniable. That a purchaser with a 
 confessedly bad title must pay the purchase money and await an 
 eviction from the premises before he can have the benefit of a 
 covenant of seisin by his grantor, may easily be productive of great 
 hardship; for when that eviction occurs the covenantor may be 
 insolvent or a non-resident; or the remedy against him may be 
 barred by the Statute of Limitations, for the statute begins to run, 
 not from the time of the eviction, but from the delivery of the 
 
 full execution of the contract of sale. * * * The remark in the opinion of 
 Chief Justice DIXON, in Mecklem v. Blake, 22 Wis. 495; 99 Am Dec. 68, 
 intimating that a rescission might be made in such a case, was clearly obiter, 
 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 reconveyance, 
 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 hearing, the court an- 
 nounces a rule inconsistent therewith, namely, that an executed contract can- 
 not be rescinded, except upon the ground of mistake. Apparently, the court 
 draws a distinction between a rescission by a decree of a court of equity, and a 
 virtual rescission accomplished at law, by permitting the purchaser to re- 
 cover 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 would have enabled 
 him, without an eviction, to put the title to a legal and decisive test at any 
 time, he cannot call on the chancellor to supply such an omission in the con- 
 tract, and, by anticipating an eviction, to decree a rescission." In Jackson 
 v. Norton, 6 Cal. 187, the right of the covenantee to a perpetual injunction 
 against the collection of the purchase money, provided he reconveyed the 
 premises to the grantor, was conceded. In Baird v. Goodrich, 5 Heisk. 
 (Tenn. ) 20, the covenantee, on failure of the title and suit against him to 
 recover the land, filed a bill against the covenantor's representative to attach 
 the estate of the covenantor in his hands, and hold it so that it might be 
 forthcoming to answer the covenantor's liability in case the plaintiff should 
 lose the property. There was a demurrer on the ground that the plaintiff's 
 remedy was on his covenants, but the demurrer was overruled. 
 
 1 Deal v. Dodge, 26 111. 458. See, also, W T hitlock v. Denlinger, 59 111. 96. 
 
 ' See the cases cited above.
 
 636 MARKETABLE TITLE TO SEAL ESTATE. 
 
 deed containing the covenant. 10 Therefore, it might be that the 
 covenantee could be compelled to pay money with the certainty of 
 a right accruing sometime in the future to recover it back, but 
 with no prespect of enforcing that right. The answer to this has 
 been that the hardship so produced is the result of the purchaser's 
 own negligence in failing to examine the title. This answer is 
 unsatisfactory: First, because there are many defects of title not 
 apparent from the public records nor upon the face of the instru- 
 ments under which the vendor claims, and which the most skillful 
 examination of the title would not disclose ; and, secondly, because 
 the very purpose for which a covenant of seisin is taken is to pro- 
 tect the purchaser against defects of title which may have been 
 overlooked or undiscovered. Another reason assigned for refusing 
 to permit the purchaser to detain the purchase money upon a 
 breach of the covenant of seisin, is the temptation which that 
 defense offers to purchasers to search out defects in the title when 
 pressed for the purchase money. 11 This objection loses its force 
 if the right of the purchaser to detain the purchase money be con- 
 fined to cases in which there is a clear and undoubted failure of 
 the title, a hostile assertion of the adverse title, and a moral cer- 
 tainty of the eviction of the grantee. It has also been urged that 
 the purchaser may protect himself by insisting upon an express 
 provision in the conveyance that the purchase money may be 
 detained and the premises be restored to the grantor if the title 
 should be found to be bad, 12 and that if he neglects a precaution 
 of this kind, he should not complain when required to pay the 
 purchase money and await an eviction by one having the better 
 title. Such a provision however, is so much out of the usual 
 
 10 Rawle Covts. ( 5th ed. ) 229. Matteson v. Vaughn, 38 Mich. 373. Spoor 
 v. Green, L. R., 9 Exch. 99. In Sherwood v. Landon, 57 Mich. 219, the evic- 
 tion did not occur until ten years after the covenant of seisin was made, while 
 an action on the covenant was held to be barred after six years. 
 
 "Rawle Covts. (5th ed.) 329. See also Id. 178, 183, 184. 
 
 "In Weaver v. Wilson, 48 111. 125, and Smith v. Newton, 38 111. 230, it 
 was provided in a purchase-money note and mortgage, that they should not be 
 payable if the title was not perfected. Where a deed with general warranty 
 provided that deferred payments of purchase money should not be made until 
 " acreage of clear title should be determined," it was held that the purchaser 
 might detain the purchasemoney though there had been no eviction. Amer- 
 ican Asson. v. Short, (Ky.) 30 S. W. Rep. 978.
 
 DETENTION OF PUECHASE MONEY. 637 
 
 course, that its absence would scarcely warrant a presumption of 
 laches against the purchaser. 
 
 A number of cases may be found in which it is decided 
 that a mere breach of the covenant of seisin, unattended by an 
 eviction from the premises, is no defense to an action for the 
 purchase money. 13 In most of these cases, however, it will be seen 
 either that the covenantee was seeking to recover back the purchase 
 money; or that he had purchased with notice of the want of title; 
 
 13 Ante, p. 443, cases cited in n. 3. McConihe v. Fales, 107 N. Y. 404 ; 14 
 N. E. Rep. 285 ; Parkinson v. Sherman, 74 N. Y. 92 ; 30 Am. Rep. 268. 
 
 Abbott v. Allen, 2 Johns. Ch. (N. Y.) 519; 7 Am. Dec. 554, and Bumpus v. 
 Plainer, 1 Johns. Ch. (N. Y.) 213, are the leading cases cited to sustain the 
 doctrine that a purchaser cannot, on breach of the covenant of seisin, detain 
 the purchase money unless he has been evicted. The objections to the title 
 in those cases amounted to no more than that it was doubtful or unmarket- 
 able. In neither case was there any one asserting or prosecuting an adverse 
 title, nor was any offer made to reconvey the premises. Such objections as 
 were made appear to have been ferreted out merely for the purpose of delay- 
 ing the collection of the purchase money. Chancellor KENT rendered the 
 decision in both these cases, and afterwards, in Johnson v. Gere (2 Johns. 
 Ch. 546 ) , granted an injunction staying the collection of the purchase money, 
 upon an allegation that there was an outstanding paramount title in 9 
 stranger, which was being prosecuted by suit in ejectment against the cove- 
 nantee. Johnson v. Gere, however, has been disapproved in many subsequent 
 New York decisions. See Miller v. Avery, 2 Barb. Ch. (N. Y.) 595; Platt v. 
 Gilchrist, 3 Sandf. (N. Y. S. C.) 118. The cases cited by Mr. Rawle (Covta. 
 for Title [5th ed.l, 637) to the proposition that the purchase money cannot 
 be detained upon a mere breach of the covenant of seisin, may be seen below, 
 with others in parentheses. Some pains have been taken to indicate briefly 
 the grounds of the decision in most of these cases, for in nearly all of them 
 there were circumstances to bring the case within the exceptions to the rule 
 stated at the head of this chapter; such, for example, that the purchaser 
 made no offer to reconvey the premises to the grantor, or that the objections 
 to the title were of a misty or doubtful character. 
 
 Noonan v. Lee, 2 Bl. (U. S.) 499. In this case, it is true that the cove- 
 nantee offered to restore the property, but, for all that appeared to the 
 contrary, he was advised of the state of the title when he bought. It also 
 appeared that he took the property with a particular purpose in view, after 
 the accomplishment of which he attempted to throw the purchase back on 
 the hands of the vendor without having paid any of the purchase money. 
 Beck v. Simmons, 7 Ala. 76. Here the covenantee purchased knowing that 
 the title was defective. Burkett v. Munford, 70 Ala. 423. The contract was 
 executory in this case, and the court merely decided that a rescission should 
 be denied in such a case if the purchaser had not restored the premises to 
 the grantor, unless, indeed, it was necessary for him to detain the property 
 until he should be indemnified for what he had already paid. Roberts v.
 
 638 MARKETABLE TITLE TO REAL ESTATE. 
 
 or that he was seeking to keep both the land and the purchase 
 money; or that he could show no more than that the title was 
 doubtful and not absolutely bad. Consequently, they cannot be 
 deemed conclusive against the alleged right of the covenantee to 
 resist the payment of the purchase money, where he reconveys or 
 offers to reconvey the premises to the grantor, upon a complete 
 and palpable failure of the title. In a State in which the rule 
 that a breach of the covenant of seisin is no ground for detaining 
 the purchase money unless the covenantee has been evicted, ap- 
 pears to be firmly rooted, it is, nevertheless, admitted that a judg- 
 ment in ejectment against the covenantee in favor of an adverse 
 
 Woolbright, 1 Ga. Dec. 98; McGhee v. Jones, 10 Ga. 127, 133. Here, also, 
 the contract was executory, the vendor having executed a bond to make title, 
 and to that bond the court seems to have given the effect of a conveyance 
 with general warranty, so far as the right to detain the purchase money ia 
 concerned. Miller v. Long, 3 A. K. Marsh. (Ky.) 334; Perciful v. Kurd, 5 J. 
 J. Marsh. (Ky.) 670; Lewis v. Morton, 5 T. B. Mon. (Ky.) 1. Here the 
 objections to the title were more than thirty years old. So, also, in Vance 
 v. House, 5 B. Mou. (Ky.) 537; Casey v. Lucas, 2 Bush. (Ky.), 55. Here it 
 was said that, no danger of eviction being alleged, the covenantee could not 
 have a rescission of the contract without an effort to procure the title, or 
 without showing that a good one could not be made. English v. Thomason, 
 82 Ky. 281. (In Buford v. Guthrie, 14 Bush. [Ky.], 690, the rule that an 
 executed contract for the sale of lands cannot be rescinded except upon the 
 ground of fraud or mistake, seems to have been asserted without any qualifi- 
 cation whatever. See, also, Gale v. Conn, 3 J. J. Marsh. [Ky.l 38.) Beebe 
 v. Swartwout, 3 Gil. (111.) 162. In this case there had been a constructive 
 eviction, the covenantee not having been able to get possession of part of the 
 land, and the court considered that the remedy at law on the bond was suffi- 
 cient. Ohling v. Luitjens, 32 111. 23; Lovingston v. Short, 77 111. 587. Here 
 the covenantee not only bought with notice that the title to part of the land 
 was doubtful, and asked for a rescission as to that part, but failed to show 
 that any one was claiming or asserting a paramount title to that portion. 
 Middlekauff v. Barick, 4 Gill (Md. ), 290. In this case the purchaser took a 
 conveyance with covenants which did not embrace the defect of which he 
 complained. Haldane v. Sweet, 55 Mich. 196. Rescission was denied here 
 (1) because the covenantee bought with notice of certain physical incum- 
 brances of which he complained, and (2) that the objections made to the 
 title consisted of doubtful outstanding claims. Wilty v. Hightower, 6 Sm. 
 & M. (Miss.) 345. In this case the covenantee was seeking to recover back 
 and not to detain the purchase money, and it was, of course, held that his 
 remedy was on the covenants. McDonald v. Green, 9 Sm. & M. (Miss.) 138. 
 The contract was executory in this case. So, also, in Green v. McDonald, 13 
 Sm. & M. (Miss.) 445. (See Walker v. Gilbert, 7 Sm. & M. [MissJ 456.) 
 Cooley v. Rankin, 11 Mo. 647. The objections to the title in this case were
 
 DETENTION OF PUECHASE MONEY. 
 
 claimant will justify an injunction against the collection of the 
 purchase money, though it is clear that such a judgment does not 
 amount to an eviction, unless the covenantee chooses to surrender 
 the possession to the adverse claimant. 14 In such a case, it would 
 be against conscience to compel the covenantee to pay over the 
 
 such as showed it to be merely doubtful and not absolutely bad. Edington v. 
 Nix, 49 Mo. 135. Rescission was refused because the covenantee made no 
 offer to restore the premises, and was seeking to recover back and not to 
 detain the consideration. Beach v. Waddell, 4 Halst. (N. J. Eq.) 299. It 
 was not shown here that the title had failed. Leggett v. McCarty, 3 Edw. 
 Ch. (N. Y. ) 124. There was no offer to return the premises here, and the 
 court said that while the covenantee held possession it would be unreasonable 
 to say that he might not be compelled to pay the purchase money. Woodruff 
 v. Bunce, 9 Paige Ch. (N. Y.) 443; 38 Am. Dec. 559. Whitworth v. Stuckey, 
 1 Rich. Eq. (S. C.) 404; Van Lew v. Parr, 2 Rich. Eq. (S. C.) 321; Maner v. 
 Washington, 3 Strobh. Eq. (S. C.) 171. The entire purchase money had been 
 paid in this case, and the object of the camplainant was to recover it back. 
 Buchanan v. Alwell, 8 Humph. (Tenn.) 516. The contract was executory in 
 this case. Young v. Butler, 1 Head (Tenn.) 639. In this case the covenantee 
 expressly declined to restore the possession because he had gone on the land 
 to live and had made valuable improvements. Cohen v. Woolard, 2 Tenn. 
 Ch. 686; Jones v. Fulgham, 3 Tenn. Ch. 193. Long v. Israel, 9 Leigh (Va.), 
 564. Here the covenantee sought to recover back and not to detain the pur- 
 chase money, and the court said (per TUCKER, P.) that they had never gone 
 so far as to relieve a covenantee complaining of failure of title except where 
 the application was to restrain the recovery of the purchase money. In 
 Young v. McClung, 9 Grat. (Va.) 336, 358, the purchaser bought at a 
 judicial sale, and, with full knowledge of the defective title, allowed the sale 
 to be confirmed without objection. In Prevost v. Gratz, 3 Wash. (C. C. ) 434, 
 439, the land was in the possession of adverse claimants, and there was no 
 obstacle to complete and immediate relief on the covenants for title. The 
 court went so far as to deny the right of the covenantee to detain the pur- 
 chase money, though the covenant of warranty had been broken by a 
 constructive eviction. In that respect the case would hardly be deemed an 
 authority at the present day. Ante, 180. Greenleaf v. Queen, 1 Pet. 
 (U. S.) 138. The contract was executory in this case. Patterson v. Taylor, 
 7 How. (U. S.) 132. The title in this case was not absolutely bad; it was 
 merely doubtful or unmarketable at most, the covenantor having been in pos- 
 session under color of title for more than twenty years. Kimball v. West, 
 15 Wall. (U. S.) 377, 379. This was a suit to rescind the contract and 
 recover the whole consideration, $22,000, and it appeared at the hearing that 
 the covenantor had at his own cost removed all objections to the title. 
 Smoot v. Coffin, 4 Mackey, (D. C.), 407. It did not appear in this case that 
 there was a clear outstanding title in a stranger. 
 
 "Green v. McDonald, 13 Sm. & Marsh. (Miss.) 445, where it was said by 
 the court : " It seems that the objection to granting relief before eviction in 
 cases of the failure of consideration arising from defects in the title is placed
 
 640 MAKKETABLE TITLE TO EEAL ESTATE. 
 
 purchase money to the covenantor, and take the risk of an inability 
 to get it back in the form of damages, after he shall have been 
 evicted by legal process upon the judgment. 
 
 The permanent detention of the unpaid purchase money upon a 
 breach of the covenant of seisin is in effect a rescission of the con- 
 tract ; 15 and, therefore, this alleged right of the purchaser has been 
 denied in some cases upon the ground that an executed contract 
 cannot be rescinded unless the agreement was founded in fraud 
 or mistake. 16 The wisdom and expediency of this rule is obvious 
 where the contract has been in fact fully executed, that is, where 
 the whole purchase money has been paid and the purchaser is in 
 possession of the premises. The vendor may have invested the 
 purchase money in other property, or the purchaser may have 
 dealt with the estate in such a manner that it may be impossible 
 to put the vendor in as good a position as he was in before the 
 contract was executed. But it may be seriously doubted whether 
 
 chiefly on the ground of incompetency of a court of chancery as not possess- 
 ing any direct jurisdiction over legal titles. It is conceded that it may try 
 titles to land when the question arises incidentally, but it is understood not 
 to be within its province when the case depends on a simple legal title and is 
 presented directly by the bill. If this be the true reason why a previous 
 eviction is necessary to authorize the interposition of the court, a judgment 
 at law establishing a failure of title would be held sufficient for that purpose 
 without eviction." If this be true it may be added that it is difficult to per- 
 ceive why the same reasoning would not apply in a court of law when the 
 purchaser sets up a judgment in ejectment as a defense to an action for the 
 purchase money. In Jaques v. Esler, 4 N. J. Eq. 461, it was said: "It is 
 well settled that the purchaser of real estate by deed of warranty has a right 
 to relief in equity against the vendor who seeks to enforce the payment of a 
 bond and mortgage given for the purchase money until a suit actually brought 
 to recover the premises by a person claiming them by paramount title shall 
 have been determined. He is not obliged to look merely to the covenants in 
 the deed. He is not to be driven to such circuity of action, nor to rely upon 
 that as his sole security. The fund in his hands is a security of which it 
 would be inequitable to deprive him." It is true that these objections were 
 made with respect to the right of the covenantee to enjoin the collection of 
 the purchase money before eviction, but the principle of the decision is ap- 
 plicable in any case in which the purchaser seeks to detain the purchase 
 money so long as the title is actually threatened. 
 
 15 A perpetual injunction against proceedings to collect the purchase money 
 practically amounts to rescission of an executed contract. McWhirter v. 
 Swaffer, 6 Baxt. (Tenn.) 342, 347. Golden v. Maupin, 2 J. J. Marsh. (Ky.). 
 237, 241. 
 "McClennan v. Prentice, 85 Wis. 427.
 
 DETENTION OF PUBCHASE MONEY. 641 
 
 a contract for the sale of lands can be said to be " executed " so 
 long as any part of the purchase money remains unpaid," espe- 
 cially in America, where it is a common practice to execute a con- 
 veyance to the purchaser as soon as the contract of sale is made, 
 and to take a mortgage or trust upon the property to secure the 
 unpaid purchase money. In England, where transfers of real 
 property are comparatively infrequent, it seems that conveyances 
 are seldom made to purchasers until all the purchase money has 
 been paid, and, therefore, in that country there are few, if any, 
 occasions to modify the rule against the rescission of executed 
 contracts, so as to permit the detention of unpaid purchase money 
 upon a clear failure of the title. 
 
 An able and discriminating text writer admits the right of the 
 purchaser to recover the consideration money as damages for a 
 breach of the covenant of seisin, where the failure of title is clear 
 and undoubted and the breach affects the whole title, and declares 
 that the effect of such a recovery is to revest the title, such as it is, 
 in the covenantor. 18 But elsewhere the same author lays down that 
 
 " A contract is said to be executed when nothing remains to be done by 
 either party. A contract is said to be executory when some future act remains 
 to be done. Story on Cont. (5th ed.) 92. Farrington v. Tennessee, 5 Otto 
 (U. S.), 683. Fox v. Kitton, 19 111. 519, 533. Fletcher v. Beck, 6 Cranch 
 (U. S.), 137. A contract for the sale of lands is "executed" when the pur- 
 chase money is paid, possession given, and a deed delivered to the purchaser. 
 Frazer v. Robinson, 42 Miss. 121. In no case can a contract for the sale of 
 lands be said to be " executed " until the purchase money has been paid and 
 a conveyance made to the purchaser. Herbemont v. Sharp, 2 McCord L. 
 (S. C.) 265. Robison v. Robison, 44 Am. 227, 235. Of course a contract 
 for the sale of lands is fully executed by the acceptance of a conveyance, in 
 the sense of the rule that excludes evidence of any antecedent agreement re- 
 pugnant to or inconsistent with the conveyance. Long v. Hartwell, 34 N. J. 
 L. 116. In Adams v. Reed, (Utah) 40 Pac. Rep. 720, it was held that the 
 contract would not be regarded as " executed," notwithstanding a quit-claim 
 conveyance had been executed by the vendor and accepted by the vendee, if 
 the deed conveyed land other than that called for by the contract. 
 
 18 Rawle Covts. (5th ed.) 264. Mr. Rawle's text contains no positive state- 
 ment to this effect, but such a statement is found in a note on the page cited. 
 The author observes : " In the first edition of this treatise it was said : " If 
 nothing had been paid and no pecuniary loss had been suffered, and the pos- 
 session had not been disturbed, and the purchaser did not offer to convey, it 
 is believed that nominal damages only would in general be allowed. The 
 technical rule, therefore, that the covenant for seisin is broken, if at all, at 
 once and completely, is as respects the damages little more than a technical 
 
 41
 
 642: MARKETABLE TITLE TO EEAL ESTATE. 
 
 equity will not enjoin the collection of the purchase money and 
 rescind an executed contract for the sale of lands merely because 
 the title has failed; in other words, that the covenantee cannot 
 detain the purchase money merely because the covenantor has no 
 title. 19 If the purchaser may recover back the purchase money as 
 damages upon a breach of the covenant of seisin, it would seem 
 
 one.' Covenants for Title (1st ed.), 83 (citing the case of Collier v. Gamble, 
 10 Mo. 472, where it had been held that ' the reasonable rule was to recover 
 nominal damages only until the estate conveyed was defeated or the right to 
 defeat it had been extinguished ' ) , and this passage was cited in the more 
 recent case of Overhiser v. McCollister, 10 Ind. 44, and held to be ' obviously- 
 just.' The treatise then went on to say : ' Cases may, of course, occur in 
 which, although the purchaser may have paid nothing to buy in the para- 
 mount title, and may still be in possession, yet where the failure of the title 
 is so complete and the loss so morally certain to happen, that a court might 
 feel authorized in directing the jury to assess the damages by the consid- 
 eration money.' Upon subsequent consideration the opinion was formed that 
 the first passage above quoted did not correctly express the law, and it was 
 omitted in the second edition. Since then the case in Missouri came up again 
 (Lawless v. Collier, 19 Mo. 480), where the second of the passages above 
 quoted was referred to and the case decided accordingly. It is believed that 
 the text as now offered contains the true statement of the law, and that if 
 the breach of the covenant has occurred, affecting the whole of the title, 
 * * * the plaintiff has a right to recover damages measured by the con- 
 sideration money, the effect of whose receipt will be, subject to the exceptions 
 hereafter to be noticed, to revest the title, such as it is, in the covenantor." If 
 this be sound law and the same author's further proposition, that the cove- 
 nantee may for the avoidance of circuity of action detain the purchase money, 
 whenever he has a present right to recover damages (Covt. [5th ed.l 333), 
 be sound, the conclusion is irresistible that a clear and indisputable want of 
 title in the covenantor will justify the covenantee in detaining the purchase 
 money, provided he reconveys the premises to the grantor. Mr. Rawle prac- 
 tically admits this conclusion, but adds that the temptation offered to 
 purchasers to ferret out defects in the title when pressed for the purchase 
 price is such as to induce a leaning in favor of the rule that unless there has 
 been a bona fide eviction, actual or constructive, the grantee is without relief. 
 (Covts. for Title, 329.) See, also, Rawle Covts. (5th ed.) 179, 185, 258, 
 where the author assumes the right of the purchaser on breach of the cove- 
 nant of seisin to recover substantial damages before eviction. This assump- 
 tion is in aid of the author's view that the covenantee cannot, before or after 
 eviction, buy in the outstanding title and require the covenantee to take it in 
 satisf acton 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 his right to rescind the con- 
 tract by reconveying the premises to the grantor. 
 "Rawle Covts. (5th ed.) 376, 378.
 
 DETENTION OF PURCHASE MONEY. 643 
 
 that upon the same evidence and for the avoidance of circuity of 
 action he should be permitted to detain the purchase money by 
 way of recoupment of the covenantor's demand, just as he may 
 do upon a breach of the covenant of warranty ; and it is difficult 
 to discover any reason for admitting that defense in the one case 
 which would not apply with equal force in the other. If he paid 
 the money over to the covenantor he might immediately recover 
 it back as damages for breach of the covenant. As this recovery 
 is permitted only upon condition that the covenantee reconvey the 
 premises to the covenantor, or upon the assumption that the effect 
 of a judgment for the covenantee operates of itself to reinvest the 
 covenantor with such title as he conveyed, it is plain that a rescis- 
 sion of the contract is thereby practically accomplished. The 
 covenantee gets back his purchase money and the premises are 
 restored to the covenantor. We have seen that the covenantee 
 may voluntarily surrender the possession to an adverse claimant, 
 or buy in his rights, if the adverse title has been hostilely asserted ; 
 and that such action on his part amounts to a constructive eviction 
 from the premises and constitutes a breach of the covenant of 
 warranty, entitling him to recover damages against the covenantor, 
 or to set up those facts as a defense to an action against him for 
 the purchase money. 20 In principle and in practical results there 
 is little difference between the exercise of these rights, and the 
 detention of the purchase money upon a reconveyance of the estate 
 to the grantor after an adverse title has been hostilely asserted 
 against the covenantee. The law is chiefly solicitous that the cove- 
 nantee shall not enjoy the benefit of the contract while evading 
 its obligations, and this object is accomplished 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- 
 
 Ante, 150, 187.
 
 644 MARKETABLE TITLE TO HEAL ESTATE. 
 
 dition that it shall be inoperative unless he reconvev 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 this loss or suffer a constructive eviction bj 
 compounding with the adverse claimant, except in a few of the 
 States, where he may have an injunction to stay the collection of 
 the purchase money, without, it seems, being required to convey 
 the premises to the grantor, in view of the imminency or extreme 
 probability of his eviction. 21 
 
 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 
 damage he may have sustained by reason of the purchaser's occu- 
 pation and possession of the premises. 22 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. 23 The mere objection that 
 
 "Post, 337. 
 
 "Deal v. Dodge, 26 111. 458. 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 mar- 
 ried woman nor her heirs are estopped by her covenant of warranty front 
 recovering her separate estate from a purchaser who holds under a convey- 
 ance 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. Instances 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. 
 
 3 Ante, 117. Vance v. House, 5 B. Mon. (Ky.) 540; Zerfing v. Seelig, 
 14 S. Dak. 303; 85 N. W. Rep. 585. 

 
 DETENTION OF PUBCHASE MONEY. 645 
 
 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. 24 Nor should the de- 
 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 
 
 "Cooley r. Rankin, 11 Mo. 642. Lewis v. Morton, 5 T. B. Mon. (Ky.) 1. 
 ! an action on a bond for purchase money o*f land, the defense that the 
 title was doubtful is insufficient; the title must be proven to be absolutely 
 bad. Crawford v. Murphy, 22 Pa. St. 84; Schott v. McFarland, 1 Phil. (Pa.) 
 53. In Clanton v. Surges, 2 Dev. Eq. (N. C.) 13, a much cited case, the 
 oourt, by RUFFIN, J., after describing the objection to the title on which the 
 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." 
 
 "Payne v. Cabell, 7 T. B. Mon. (Ky.) 198. See, also, Whitworth Y. 
 Stuckey, 1 Rich. Eq. (S. C.) 408, where it was said: "In the frequent fluc- 
 tuations of the commercial prosperity of the country fluctuations to which 
 our country seems more liable than any other there is a corresponding 
 fluctuation in the value of property. He who purchases land at a high price 
 will be tempted, 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
 
 646 MARKETABLE TITLE TO BEAL ESTATE. 
 
 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. 26 
 
 With these qualifications it is believed that little inconvenience 
 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. BBEACH OF THE COVENANT OF SEISIN AS TO PAST 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 extends 
 this principle to cases in which the title to a specific part of the 
 subject fails. 27 Treating this as a proposition that the covenantee 
 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 distinction between 
 
 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 information from 
 individuals and searching public offices in order to ferret out a paramount 
 title, which there was not the remotest probability would ever be 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." Anderson 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. 
 
 M Johnson v. Williamson. 145 Ind. 645; 43 N. E. Rep. 1054. 
 
 "Rawle Covts. (5th ed.) 186, 187.
 
 DETENTION OF PURCHASE MONEY. 647 
 
 such a case and one in which there has been a complete failure 
 <f title to the entire estate. The distinction might well be made 
 where the breach of the covenant consists in a diminutipn of the 
 quantity of the estate or interest conveyed, as in the case first 
 mentioned, in which the covenantee got only a life estate instead 
 -of a fee. But that case would appear to stand upon different 
 grounds from one in which no interest whatever in a part of the 
 subject passed. Where there is a mere diminution in the quantity 
 of estate conveyed, the covenantee might consistently retain pos- 
 session of the premises, while in the case last mentioned he would 
 not be permitted to detain the purchase money pro tanto, so long 
 as he remained in possession of the entire estate. If, however, 
 the failure of the title to a part of the premises were such as to 
 bring the case within the rule stated at the beginning of this chap- 
 ter, no reason is perceived why the purchaser should not be allowed 
 to detain the purchase money in the same proportion which the 
 value of the part of the premises to which the title has failed 
 bears to the value of the whole.
 
 CHAPTEK 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 PUB- 
 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: 
 
 PBOPOSITION V. 1 // the contract has been executed by a convey- 
 ance of the land to the purchaser without general covenants for 
 title, he can, if the title fails, neither recover back* the purchase 
 
 1 For Proposition IV, see ante, 180. 
 
 a Co. Litt. 384, a, note; Sugd. Vend. (14th Eng. ed.) 251, 549; 2 Kent. 
 Com. (llth ed.) 622 (473); Rawle Covta. (5th ed.) 321. Maynard v. 
 Mosely, 3 Swanst. 651; Bree v. Holbech, Doug. 654; Urmston v. Pate, 4 
 Cruise Dig. 90; Tylee v. Webb, 14 Beav. 14; Crippa v. Reade, 6 T. R. 60C; 
 Thomaa v. Powell, 2 Cox Ch. 394. United Statea v. Bank of Ga. 10 Wh. 
 (U. S.) 433; Union Pac. R. Co. v. Barnes, 64 Fed. Rep. 80. Corbett T. 
 Dawkins, 54 Ala. 282. Story v. Kemp, 51 Ga. 399. Botsford v. Wilson, 75 
 111. 132; Niles v. Harmon, 80 111. 396; Barry v. Guild, 126 111. 439; 18 N. 
 E. Rep. 759. Major v. Brush, 7 Ind. 232; Jenkinson v. Ewing, 17 Ind. 
 505 ; Starkey v. Neese, 30 Ind. 224 ; Stratton v. Kennard, 74 Ind. 303. Allen 
 v. Pegram, 16 Iowa, 172; Weightman v. Spofford, 56 Iowa, 172. In Louis- 
 iana, where the civil law prevails and the rule caveat emptor 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. 
 (N. Y.) 306; Banks v. Walker, 2 Sandf. Ch. (N. Y.) 348; Whittemore v. 
 Farrington, T Hun (N. Y.), 392; Granger v. Olcott, 1 Lans. (N. Y.) 169; 
 Thorp v. Keokuk Coal Co., 48 N. Y. 253. 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
 
 DETENTION OK RESTITUTION OF THE PUECHASE MONEY. 649 
 
 money, nor detain 9 that which remains unpaid, either at law or 
 in equity; unless the vendor was guilty of fraud, or the contract 
 was founded in mistake of the parties as to some fact upon which 
 ihe title depended. 
 
 This proposition forms, so to speak, the most conspicuous land- 
 mark in the outlines of the law defining 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 
 
 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. Bemis v. Bridgman, 42 
 Minn. 496; 44 N. W. Rep. 793. Pintard v. Martin, 1 Sm. & M. Ch. (Miss.) 
 126. Higley v. Smith, 1 Chip. (Vt.) 409. Maynard v. Moseley, 3 Swanst. 
 855 (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 b 
 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 de- 
 fendants 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 be worth nothing, he can complain of none but himself." In Bree v. Hol- 
 bech, 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 tlie 
 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 incumbered the estate. It was incumbent on the assignee to 
 look to the goodness of it. 
 
 8 1 Sugd. Vend. (14th Eng. ed.) 251; (2d id.) 549, 552; Rawle Covt*. 
 (5th ed.) 321. Roswall v. Vaughan, 2 Cro. 196. Greenleaf v. Cook, 2 \Vh. 
 (U. S.) 13; Noonan v. Lee, 2 Black (U. S.) 499; Buckner v. Street, 15 Fed. 
 Rep. 365. Griel v. Lomax, 86 Ala. 135; 5 So. Rep. 325, ob. 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,
 
 650 MAKKETABLE TITLE TO EEAL ESTATE. 
 
 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 
 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." 5 These 
 observations undoubtedly apply with full force in a locality in 
 which it is customary to give general covenants of warranty, but 
 
 40 C'al. 198. Barkhamstead v. Case, 5 Conn. 528; 13 Am. Dec. 92. McDonald 
 v. Beall, 55 Ga. 288. Patten v. Stewart, 24 Ind. 332; Bethell v. Bethell 92 
 Ind. 318; Gibson v. Richart, 83 Ind. 313. Homer v. Lowe, 159 Ind. 406; 
 64 N. E. Rep. 218. Brandt v. Foster, 5 Cl. (lo.) 287. Butler v. Miller, 15 
 B. Mon. (Ky.) 627. Middleskauff v. Barrick, 4 Gill (Md.), 290; Smith T. 
 Chancy, 4 Md. Ch. 246. Mitchell v. Christopher, (Minn.) 58 N. W. Rep. 873; 
 Hulett y. Hamilton, (Minn.) 61 N. W. Rep. 672; Insurance Co. v. Marshall, 
 (Minn.) 57 N. W. Rep. 658. A rule varying from that stated in the text 
 exists in the State of Pennsylvania. See post, this chapter, 632. Mclntyrt 
 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. Commth. 
 v. McClanachan, 4 Rand. (Va.) 482. In Scudder v. Andrews, 2 McL. (U. S.) 
 464, n, nrd 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 art 
 dicta to the effect that the purchase money may be detained on failure of the 
 title, notwithstanding the absence of covenants in the coveyance. There ar 
 no authorities cited in support of these intimations. In Louisiana where the 
 rule caveat emptor, owing to the prevalence of the civil law in that State, 
 has but little foothold, it has nevertheless been held that a purchaser with 
 special warranty and notice of a government suit affecting the title, who has 
 never been evicted and probably never will be, and who has not impugned his 
 vendor's title, cannot insist on security against hostile claims. Pilcher T. 
 Prewitt, 10 La. Ann. 568. Medina v. Soughton, 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 the 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; Butler 
 v. Miller, 15 B. Mon. (Ky.) 617. 
 
 1 McNeal v. Calkins, 50 111. App. 17.
 
 DETENTION OK BESTITUTION OF THE PURCHASE MONEY. 651 
 
 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.' 
 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, 
 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 
 
 Post, 271. 
 
 'Language of the court in Refeld v. Woolfolk, 22 How. (U. S.) 328. 
 
 1 Sugd. Vend. (8th Am. ed.) 534 (356).
 
 652 MARKETABLE TITLE TO REAL ESTATE. 
 
 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 
 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 
 
 * Cross v. Noble, 67 Pa. St. 78. 
 
 "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. 
 
 "Porter v. Cook, 114 Wis. 60; 89 N. W. Rep. 823. 
 
 "Clare v. Lamb, 10 L. R., C. P. 334. In Hitchcock v. Giddings, 4 Price, 
 135, where relief was granted on the ground of mistake, a remainder man had 
 sold his interest in ignorance of the fact that the remainder had been barred 
 by a common recovery suffered 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 fact, it has been destroyed, there is a mistake of fact 
 which entitles B. to detain or recover back the purchase money. See post, 
 ch. 35, "Mistake."
 
 DETENTION OE KESTITUTION OF THE PUECHASE MONET. 653 
 
 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. 18 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 asquo 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 lost 
 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 the 
 rights of the incumbrancer without regard to the existence or non- 
 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 parlies. 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 
 
 11 Oliver v. Piatt,, 3 How. (U. S.) 410. Miller v. Fraley, 23 Ark. 743. Wood- 
 folk v. Blount, 3 Hayw. (Tenn.) 147; 9 Am. Dec. 736; Lowry v. Brown, 1 
 Coldw. (Tenn.) 459. 
 
 "2 Burr. 1012. 
 
 tt Sheldon Subrogation, ch. 1. Compare, Hancock v. Wiggins, 28 Ind. App. 
 449; 63 N. E. Rep. 242.
 
 654 MAEKETABLE TITLE TO EEAL ESTATE. 
 
 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 incr.mbrance 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. Many vendors, who are unwilling to convey with general 
 warranty, would doubtless consent to such a provision. 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 with- 
 out 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 purchase 
 money in a case where he has taken a conveyance without cove- 
 nants 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 in 
 bankruptcy who had no authority for want of jurisdiction in the 
 court to appoint him. 18 So, also, where the grantor, an adminis- 
 trator, 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, 
 
 "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 
 the purchase money, and seeking to subject it to his claim. Dill v. Ware- 
 ham, 7 Met. (Mass.) 438. Holden v. Curtis, 2 N. H. 61. 
 
 "Earle v. Beckford, 6 Allen (Mass), 549; 83 Am. Dec. 651. 
 
 "Beck v. Ulrich, 13 Pa. St. 636; 53 Am. Dec. 507.
 
 DETENTION OK RESTITUTION OF THE PURCHASE MONEY. 655 
 
 ejected the purchaser, the representatives of the husband were re- 
 strained 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 
 cannot 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 for 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 
 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, 
 
 20 Lane v. Patrick, 3 Murph. (N. C.) 473. 
 
 "Scott v. Battle, 85 N. C. 184, 191; 39 Am. Rep. 694, where it was said: 
 " If in a case like the present a feme covert should retain and have actually 
 in hand the money paid 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 be 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 she has consumed it, as it is admitted this 
 plaintiff has done, the party paying it is without remedy; and this because 
 of the policy of the law which forbids all dealings with femes 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. 245. Jones v. 
 Cohen, 82 N. C. 75, 81. A contrary view to the above was taken in Shroyer 
 v. Nickell, 55 Mo. 264, where it was held that a feme covert grantor, suing 
 to recover the premises, her deed being void for want of proper acknowledg- 
 ment, must refund the purchase money, and judgment in her favor was made 
 conditional upon such repayment. This seems the more equitable view. 
 
 a Lamb v. James, 8 Tex. 485, citing Garber v. Armentrout, 32 Grat. (Va.) 
 235. Lawson's Rights & Rem. 3691.
 
 656 MABKETABLE TITLE TO EEAL ESTATE. 
 
 and the grantee had not been evicted or disturbed by adverse 
 claimants. 28 
 
 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 
 conveyance is rejected by the vendee as being insufficient and not 
 such as he is entitled to receive under the contract. 24 
 
 269. 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- 
 standing an agreement by the vendor that the purchase money 
 should be applied to the removal of adverse claims, or should be 
 
 2S 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 beca 
 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) ; 8 Mass. 46 'Bliss v. Negus). It ia absolutely 
 roid, 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. 
 
 "Guttschlick 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 by 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.
 
 DETENTION OR RESTITUTION OF THE PURCHASE MONET. 657 
 
 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 
 
 15 Rawle Covts. (5th ed.) 320. Howes v. Barker, 3 Jonhs. (N. Y.) 506; 
 3 Am. Dec. 526, 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. (N. Y.) 297, and Bull v. Willard, 
 9 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- 
 vious covenants, and where the conveyance contains none of the usual cove- 
 nants, the law supposes that the grantee agreed to take the title at his 
 risk, or else that he would have rejected it altogether. Share v. Anderson, 
 7 Serg. & Rawle (Pa.), 43; 10 Am. Dec. 421, where the promise was to in- 
 demnify the purchaser against incumbrances. Crdtzer v. Russell, 9 Serg. & 
 R. (Pa.) 78; Ludwick v. Huntzinger, 5 W. & D. (Pa.) 51; Shontz v. Brown, 
 27 Pa. St. 131, where it was held that a bond to convey an indefeasible title 
 was merged in a conveyance with special warranty. These cases seem incon- 
 sistent with later Pennsylvania decisions. See Close v. Zell, 141 Pa. St. 390; 
 21 Atl. Rep. 770; Whitemore v. Farrington, 7 Hun (N. Y.), 592; Griffith v. 
 Kempshall, 1 Clark Ch. (N. Y.) 571. Earle v. De Witt, 6 Allen (Mass.), 
 f>20; Willfems v. Hathaway, 19 Pick. (Mass.) 387. Bever v. North, 107 Ind. 
 545; 8 N. E. Rep. 576; Philbrook v. Emswiler, 92 Ind. 590; Ice v. Ball, 102 
 Ind. 42; IN. E. Rep. 66. Thompson v. Christian, 28 Ala. 399. Seitzinger 
 v. Weaver, 1 Rawle (Pa.), 377; Jones v. Wood, 16 Pa. St. 25. Compare 
 S.-lden v. Williams, 9 Watts (Pa.), 12; Brown v. Morehead, 8 S. & R. (Pa.) 
 5G9; Anderson v. Long, 10 S. & R. (Pa.) 55, and Pennsylvania cases cited 
 infra, this section. In Johnson v. Hathorn, 3 Keyes (N. Y.), 126, it was 
 held that an executory agreement, whether written or oral, is not merged in 
 a subsequent writing by way of partial execution, unless the lattter 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; 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 
 i.il former contracts relating to the title, whether verbal or in writing. In 
 Kramer v. Ricke, 70 Iowa, 535; 25 N. W. Rep. 278, there was a conveyance 
 \\ith 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 purchaser 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 
 
 42
 
 658 MARKETABLE TITLE TO REAL ESTATE. 
 
 without covenants. 2 * 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 covenants, and having lost a part of the land through 
 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- 
 
 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. 
 
 "Clark v. Post, 113 N. Y. 17; 20 N. E. Rep. 573. 
 
 47 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.
 
 DETENTION OR RESTITUTION OF THE PURCHASE MONEY. 659 
 
 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 or ex- 
 plained by a contemporaneous parol agreement. 30 These decisions 
 
 "Post, 271. 
 
 "Close v. Zell, 141 Pa. St. 390; 21 Atl. Rep. 770. This case contains a 
 full exposition of the Pennsylvania doctrine stated in the text. Mr. Justice 
 GREEN, delivering the opinion of the court, said: " In the second count of the 
 plaintiffs' statement their cause of action is substantially sot out as a parol 
 contract of indemnity against a defective title to certain real estate conveyed 
 to the palintiffs by the defendant's testator, which was the operative induce- 
 ment to the plaintiffs to purchase th title from their vendor. The deed 
 contained the usual covenant of special warranty, but no covenant of title, 
 and as there is no breach of any of the covenants of the deed, no cause of 
 action arises under it. This proceeding is, therefore, not in any sense a pro- 
 ceeding to change, alter, modify or reform the deed in question in any respect. 
 It is not alleged or claimed that any covenant or stipulation was omitted 
 from the deed by fraud, mistake or accident, but the deed just as it is set 
 forth in the statement in substance, together with an allegation that the 
 grantor agreed with the plaintiffs at the time of the sale and delivery of the 
 deed that he would refund to them the whole of the consideration money 
 paid by the grantees to the grantor, and all interest and all costs and ex- 
 penses incurred in the event that the grantees sh6uld not acquire under the 
 deed a good title to the premises sold. The question arises whether such 
 a contract is merged in the deed subsequently executed or whether it survives 
 the deed and confers a cause of action which may be enforced upon a failure 
 of the title. It will be observed that the contract, which in this case was 
 verbal, precedes and is independent of the deed. It stipulates for indemnity 
 against the consequences of the taking of the title conveyed by the deed. If, 
 notwithstanding the deed and the title thereby sought to be conveyed, the 
 grantees subsequently sustained loss by reason of the fact that they acquired- 
 no title by the deed, is there any legal reason why they cannot recover from
 
 660 MARKETABLE TITLE TO EEAL ESTATE. 
 
 seem plainly in conflict with Smith v. Chaney, supra, and 
 with the weight of American authority upon the point. At the 
 same time it cannot be denied that they establish a rule which in 
 many cases will prevent hardship and effectuate the intent of the 
 parties. It is not always that they can have the advice and as- 
 sistance of skilled conveyancers in the execution of their contracts. 
 The popular idea of a conveyance is that its principal office is 
 merely to pass the title of the grantor, and few purchasers having 
 a title bond or written contract to indemnify them against loss in 
 ease the title failed, would dream it necessary to have the same as- 
 surance repeated in the conveyance. In the eyes of the parties the 
 one instrument is as binding as the other, and the merger of the 
 indemnity in the conveyance is, it is believed, in most cases, to 
 make for them a contract that they never intended. 
 
 the grantor the money which he had received from them and which he prom- 
 ised he would refund to them in ease the title failed? This is a question 
 which has been several times adjudged by this court." The learned judge 
 then cited and reviewed the cases of Drinker v. Byers, 2 Pen. & W. (Pa.) 
 528; Brown v. Moorhead, 8 S. & R. (Pa.) 569; Frederick v. Campbell, 13 S. 
 & R. (Pa.) 136; Richardson v. Gosser, 26 Pa. St. 335; Cox v. Henry, 32 Pa. 
 St. 18, and Anderson v. Washerbaugh, 43 Pa. St. 115, and continuing said: 
 " It thus appears from the cases now cited that, whether the agreement for 
 indemnity was made before or at the time of the sale or afterwards, the 
 right to recover indemnity in an action on the special agreement is sustained, 
 and that whether the agreement was by writing or spoken words is a matter 
 of indifference. Such an agreement is not merged in the deed if made before 
 or at the time of the deed, and is not destroyed by a covenant of general 
 warranty in the deed if made thereafter. The same doctrine was applied in 
 the case of Robinson v. Bakewell, 25 Pa. St. 424, in an action upon a similar 
 bond, given one day after the deed, and although the deed contained a cove- 
 nant of general warranty, and a recovery was had for all costs, charges and 
 expenses, including counsel fees incurred in defending the title. We again 
 enforced the same doctrine in Walker v. France, 112 Pa. St. 203; 5 Atl. Rep. 
 208, where the warranty set up was entirely in parol, and preceded the exe- 
 cution of the written agreement for the sale of the land from which this part 
 of the contract was omitted. GORDON, J., said : ' That a written agreement 
 may be modified, explained, reformed, or altogether set aside by parol 
 evidence of an oral promise or undertaking material to the subject-matter 
 of the contract made by one of the parties at the time of the execution of the 
 writing, and which induced the other "party to put his name to it, must now 
 be regarded as a principle of law so well settled as to preclude discussion.' It 
 is not at all necessary to invoke the support of this principle to sustain the 
 present proceeding. There is no question here of altering the deed for the 
 lots in question by inserting a clause left out of it by mistake, fraud or acci-
 
 DETENTION OE RESTITUTION OF THE PURCHASE MONEY. 661 
 
 270. MERGER IN CASES OF FRAUD, where the vendor has 
 made fraudulent representations respecting the title, the acceptance 
 of a conveyance will not merge either the purchaser's right to 
 recover back the purchase money, or to recover damages for the loss 
 of his bargain in an action for the deceit, 31 unless he had notice of 
 the fraud when the conveyance was made. 32 A contrary view of the 
 law has been taken in one case, 33 but that decision was afterwards 
 questioned by the court in which it was rendered, and would appar- 
 ently have been overruled if so to do had been necessary to the 
 
 dent. The case is only cited to show that where the parol stipulation is the 
 inducing cause to the execution of the written instrument the law is 
 sufficiently flexible to give relief in this manner, if the evidence is of a per- 
 fectly clear and satisfactory character. But the case is of authority on the 
 point that a contract in the nature of guaranty as to the quality of the laml 
 conveyed is not merged in the conveyance and may be enforced independently 
 of it." This case has been approvingly cited in McGowan v. Bailey, 146 Pa. 
 St. 572; 23 Atl. Rep. 372, 387; Kemp v. Pennsylvania R. Co., 156 Pa. St. 
 430; Elkin v. Timlin, 151 Pa. St. 491; 25 Atl. Rep. 139. See, also, Witbeck 
 v. Waine, 16 N. Y. 535; Bogart v. Burkalter, 1 Den. (N. Y.) 125; Carr v. 
 Roach, 2 Duer (N. Y.), 25 Colvin v. Schell, 1 Grant's Cas. (Pa.) 226; Seldeu 
 v. Williams, 9 Watts (Pa.), 9. 
 
 "Chitty Cont. (10th Am. ed.) 339. Alvarez v. Brennan, 7 Cal. 503; 7* 
 Am. Dec. 274; Wright v. Carillo, 22 Cal. 604. Gwinther v. Gerding, 3 Head 
 (Tenn.), 198. Sargent v. Gutterson, 13 N. H. 473. 
 
 32 Vernol v. Vernol, 63 N. Y. 45. Thweatt v. McLeod, 56 Ala. 375. 
 
 " Peabody v. Phelps, 9 Cal. 213, where it was hold that an action for false 
 and fraudulent representations as to the naked fact of title in the vendor of 
 real property cannot be maintained by the purchaser under a conveyance witli 
 express covenants for title, his remedy in such case being upon the covenants. 
 The court, by FIELD, J., after observing that they had been unable to find any 
 case in which the exact point had been decided, and after considering several 
 analogous cases (Wardell v. Fosdick, 13 Johns. fKy.l 325; 7 Am. Dec. 38.'] : 
 Monell v. Colden, 13 Johns. [N. Y.l 396; 7 Am. Dec. 390; Leonard v. Pitney, 
 5 Wend. [N. Y.] 31; Culver v. Avery, 7 Wend. [N. Y.l 380; 22 Am. Dec. 
 586; Whitney v. Allaire, 1 Com. St. [N. Y.l 313. Bostwick v. Lewis, 1 
 Day [Conn.], 250; 2 Am. Dec. 73. Wade v. Thurman, 2 Bibb (Ky.l, 583), 
 continued: "In the execution of a conveyance, all previous representations 
 pending the negotiation for the purchase are merged. The instrument con- 
 tains the final agreement of the parties and by it, in the absence of fraud.* 
 their rights and liabilities are to be determined." This case, if intended to 
 establish the proposition that the acceptance of a conveyance where the 
 vendor was guilty of fraud as to the title, waives all rights consequent upon 
 the fraud and confines the purchaser to his remedy upon the covenants, 
 
 * That is, fraud by which the purchaser is induced to accept the conveyance, as disting- 
 uished from fraudulent representations as to the title when the contract was made; else 
 the observations of the court would appear to be contradictory.
 
 662 MAEKETABLE TITLE TO SEAL ESTATE. 
 
 decision of the case. 34 But if the purchaser, with every opportunity 
 of discovering the fraud of the vendor by examining the records 
 after the making of the contract, and before its completion by a 
 conveyance with covenants of general warranty, accept such a con- 
 veyance without examining the title, he will be compelled to pay 
 the purchase money and look to his covenants for redress in case he 
 should be thereafter evicted. 35 If the matters alleged, by the grantee 
 
 whether he had or had not notice of the fraud at the time the deed was 
 accepted, would seem not to be in harmony with other authorities. In 2 
 Sugd. Vend. 533, it is said : " Although the purchase money has been paid, 
 and the conveyance is executed by all the parties, yet if the defect do not 
 appear on the face of the title deeds, and the vendor was aware of the defect 
 and concealed it from the purchaser, or suppressed the instrument by which 
 the incumbrance was created, or on the face of which it appeared, he is in 
 every such case guilty of a fraud and the purchaser may either bring his 
 action on the case, or file his bill in equity for relief." See, also, 1 Sugd. 
 Vend. 56. The practical consequence of forcing the purchaser to his action 
 on the covenants, is to deprive him of the right to recover damages for the 
 loss of his bargain, the measure of damages in that action being limited to 
 the consideration money and costs in defending against the adverse claimant. 
 Rawle Covt. 159. In Andrus v. St. Louis Smelting Co., 130 U. S. 643; 9 
 Sup. Ct. Rep. C45, FIELD, J., who delivered the opinion in Peabody v. Phelps, 
 supra, when one of the justices of the Supreme Court of the State of Cali- 
 fornia, stated the rule thus : " Where the vendor holding in good faith under 
 an instrument purporting to transfer the premises to him, or under a judicial 
 determination of a claim to them in his favor, executes a conveyance to the 
 purchaser with a warranty of title and a covenant of peaceable possession, his 
 previous representations as to the validity of his title, or the right of pos- 
 session which it gave, are regarded, however highly colored, as mere ex- 
 pressions of confidence in his titl", and are merged in the warranty and 
 covenant, which determines the extent of his liability." In such a case, it 
 may be observed, the vendor could scarcely be deemed guilty of fraud, and 
 the rule thus laid down in no wise conflicts with the proposition that actual 
 fraud by the vendor is not merged in the acceptance of a conveyance without 
 notice of the fraud. 
 
 " Wright v. Carillo, 22 Cal. 604. The case is also disapproved in Kimball 
 v. Saguin (Iowa), 53 N. W. Rep. 116. 
 
 "Ante, 104. Griffith v. Kempshall, Clarke Ch. (N. Y.) 576, the court 
 saying: "In this case the sale was at public auction, pursuant to previous 
 notice. It may perhaps be fairly presumed that the company casually col- 
 lected at such auction were ignorant of the state of the title to the lands 
 offered for sale. They could hardly be expected, preliminary to bidding, to 
 have made searches for themselves as to the title. To obviate any hesitation 
 on this ground on the part of the bidders, the defendants, the sellers, 
 by one of their number and by the auctioneer employed by them, declared 
 according to (the complaint) that a clear and unincumbered title to the lots
 
 DETENTION OR RESTITUTION OF THE PURCHASE MONEY. 663 
 
 to have been falsely represented to him by the vendor, are equally 
 open to both parties, and the grantee examines the title, and relies 
 
 sold would be given to those who might become purchasers. Upon the faith 
 of this title the bids were made. What is the amount of this declaration of 
 the sellers? Unquestionably that the person so bidding should have a clear 
 and unincumbered title; and this assurance could be enforced by any of the 
 purchasers at such sale before taking their deeds. The deeds were not of 
 course ready at the day of sale. The purchaser, under this assurance, would 
 have or could claim time to examine into the state of the title. They could 
 not be compelled to complete the purchase until such time was given them. 
 If upon such examination, they ascertained that the title was incumbered 
 or invalid, they might abandon their purchases, because the assurance held 
 out at the sale was not sustained by the fact. Or the purchasers might, if 
 they chose, instead of examining into the title, take their deeds, protecting 
 themselves by proper covenants as to title and against incumbrances. They 
 have chosen to take the latter course. By so doing, I apprehend, the assurance 
 made at the sale is merged in the covenants contained in the deeds. The 
 execution and acceptance of the deeds is the completion of the executory 
 contracts made by the bidding at the auction, and the terms of that executory 
 contract cannot now be inquired into, unless there was fraud in the repre- 
 sentations so made. It seems to me that the representations made at the 
 sale were nothing more than this, that the title was clear and unincumbered; 
 and if it did not prove so, the bidding at the sale should not amount to a 
 contract. It was for the purchasers, after the sale and before taking their 
 deeds, to ascertain whether this was so, whether the title was such as would 
 be satisfactory to them ; or, in other words, whether they were willing to take 
 the deeds and consider the contract complete and perfect. They have chosen 
 to consider the contract complete and perfect, by the acceptance of deeds 
 without inquiry or investigation, guarding themselves by covenants from 
 the grantors. They have thought it proper so to do, and execute their mort- 
 gages for the purchase money, and further, to make valuable erections upon 
 the premises so purchased. It is true the bill charges that they did all this, 
 relying upon the truth of the representations made by the sellers. I cannot 
 think this allegation will aid the complainants. They had abundant means 
 and opportunities to ascertain for themselves the truth of the representa- 
 tions ; and, in my opinion, these assurances were given for the purpose of 
 enabling the purchasers so to do. They did not chose to avail themselves 
 of such means. They have been negligent, and this court will hardly feel 
 itself called upon to repair, by its decree, their want of diligence and care 
 of their own interests and rights." The main points of difference between 
 Griffith v. Kempshall, supra, and Peabody v. Phelps, supra, are : ( 1 ) That 
 the first case was a suit to restrain the collection of the purchase money on 
 the ground of the vendor's fraud until he should remove certian incum- 
 rances; while the second was an action at law to recover damages for the 
 deceit, and the effect of the decision was to drtae the plaintiff to his action 
 on the covenant, in which he could recover no damages for the loss of his 
 bargain. (2) That in the first case there was a covenant of general warranty, 
 while in the second the covenant was limited to the acts of the grantor and
 
 664 MARKETABLE TITLE TO REAL ESTATE. 
 
 upon the evidences furnished by the public records, and not upon 
 the representation of the vendor, the contract will not be rescinded, 
 but the grantee will be left to his remedy upon the covenants, if 
 any. 36 
 
 If the purchaser expressly contracted for a good title and was 
 afterwards induced to accept a quit-claim conveyance through the 
 fraudulent representations of the vendor respecting the title, the 
 contract is not merged in the conveyance, and the purchaser is 
 entitled to a rescission of the contract and to recover back or 
 detain the purchase money. 37 
 
 In a case in which the sale was without fraud in the first 
 instance, false representations respecting the title, made by th& 
 
 his heir; so that while the first case merely drives the purchaser to a dif- 
 ferent form of redress, the second case not only deprives him of damages for 
 the loss of his bargain (i. e., the value of the premises in excess of the pur- 
 chase money), but the premises having been lost through paramount title 
 and not through any one claiming under the grantor, denies him any relief 
 whatever. (3) In the first case a considerable period elapsed between the 
 making of the contract and the acceptance of the conveyance in which the 
 purchaser might have examined the title. In the second case it seems that 
 the sale was immediately tonsummated by a conveyance, so that the pur- 
 chaser could not have examined the title without deferring the conveyance. 
 
 Farnsworth v. Duffner, 142 U. S. 43. 
 
 w Rhode v. Alley, 27 Tex. 445, where it was said: " It cannot be questioned 
 that it is competent for a purchaser of land who has received a deed with 
 special warranty to show that a fraud has been practiced upon him in respect 
 to the title. If a vendor of land has a perfect title in himself, his vendee may 
 well be content to accept from him a deed with special warranty because such 
 a deed would, in that case, vest an unimpeachable title in the vendee. Ordi- 
 narily, when a vendor accepts a quit-claim deed or a deed with special war- 
 ranty, the presumption of law is that he acts upon his own judgment and 
 knowledge of the title, and he will not be heard to complain that he has not 
 acquired a perfect title. But where, in the negotiations preliminary to the 
 execution of the contract, the purchaser stipulates for a perfect title and is 
 afterwards induced, by the false or fraudulent representations of the vendor, 
 to accept a quit-claim deed with special warranty, in the belief that he is 
 acquiring a perfect title, and one free from litigation at the time, he will 
 be permitted to show that he was deceived in respect to the title, and may 
 be relieved against such contract.'' Citing, among other cases, Hayes v. 
 Bonner, 14 Tex. 629, in which, however, the contract had not been executed 
 by a conveyance, but the purchaser had, by reason of the vendor's fraurt, 
 agreed to accept a quit-claim conveyance. See, also, Wilson v. Higbee, 62 Fed. 
 Rep. 723. Ballou v. Lucas, 59 Iowa, 24; 12 N. W. Rep. 745. Atwood v. 
 Chapman, 68 Me. 38; 28 Am. Rep. 5.
 
 DETENTION OR RESTITUTION OF THE PURCHASE MONEY. 665 
 
 vendor some time afterwards when a deed is accepted and a security 
 for the purchase money given, have been held no ground for re- 
 scinding the contract or detaining the purchase money. 38 It may 
 he doubted whether this decision can be reconciled with those which 
 hold that fraud of which the purchaser is ignorant is not merged 
 in a conveyance with covenants for title. 
 
 271. RULE IN PENNSYLVANIA. The decisions in Pennsyl- 
 vania upon the right of a purchaser to detain the purchase money 
 must be carefully distinguished from those rendered elsewhere, for 
 they establish a doctrine which does not, in its entirety, exist in the 
 other States. The principal features of that doctrine are that 
 wherever the title of the vendor fails the purchaser may detain the 
 purchase money whether the contract be executed or executory, and, 
 if executed, whether the deed contains covenants for title or not, 
 unless he expressly assumed the risk of the title, and that the pur- 
 chaser may defeat the recovery of the purchase money in every 
 such case by showing a clear outstanding title in another, or a valid 
 incumbrance on the property equal to the purchase money, though 
 he has not been evicted or disturbed in the possession. 39 The re- 
 
 "Kirkland v. Wade, 61 Ga. 478. 
 
 "In Beaupland v. McKeen, 28 Pa. St. 130; 70 Am. Dec. 115, the court 
 said, 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 tlie purchaser is of no importance in this State. Under 
 certain circumstances either is of the utmost importance, as will be seen 
 hereafter. 
 
 An excelloat 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
 
 666 MAEKETABLE TITLE TO EEAL ESTATE. 
 
 suits of those decisions may be conveniently stated in the following 
 propositions : 
 
 (1) A purchaser 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 he 
 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 incumbrance it 
 
 covenant is a mode of defense that is peculiar to our Pennsylvania jurispru- 
 dence, but the principle is well settled with us that where a vendor has con- 
 veyed with covenants on which he would be liable to the vendee in damages 
 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 bargain. 
 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 
 bound to prove an eviction as if he were plaintiff in an action of covenant. 
 Until eviction the covenant is part of the consideration of the purchase money 
 he agreed to pay, and holding the covenant he may not withhold the purchase 
 money. But after eviction he has a right to have his damages deducted from 
 the purchase money. 
 
 40 The expression " without covenants," as used here and in the following 
 pages, means without covenants embracing the defect of which the purchaser 
 complains. If the defect be one not created by the grantor or his assigns, a 
 conveyance with special or limited warranty only is the same as a conveyance 
 with no covenants at all, as respects the right to detain the purchase money. 
 Cross v. Noble, 67 Pa. St. 78. 
 
 "Steinhauer v. Witman, 1 S. & R. (Pa.) 438, the leading case; Hart v. 
 Porter, 5 S. & R. (Pa.) 201; Share v. Anderson, 7 S. & R. (Pa.) 61; 10 Am. 
 Dec. 421; Carnahan v. Hall, Add. (Pa.) 127; Goucher v. Helmbold, 1 Miles 
 (Pa.) 407; Beaupland v. McKeen, 28 Pa. St. 130; 70 Am. Dec. 115; Lloyd v. 

 
 DETENTION OE BESTITUTION OF THE PURCHASE MONEY. 667 
 
 is not necessary that he shall have discharged it in order to avail 
 himself of the right to detain the purchase money. 42 Nor is it 
 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's lien, in which no judg- 
 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. 45 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 
 
 Farrell, 48 Pa. St. 73; Youngman v. Linn, 52 Pa. St. 413; Cross v. Noble, 67 
 Pa. St. 74; Wilson's Appeal, 109 Pa. St. 106. In Seaton v. Barry, 4 W. & S. 
 (Pa.) 184, a partitioner who had taken the whole premises at a valuation 
 was allowed to detain the valuation money to the extent of an incumbrance 
 on the premises created by the ancestor. It will be remembered that a war- 
 ranty of title is implied in cases of partition and exchange. Ante, 137. 
 
 "Roland v. Miller, 3 W. & S. (Pa.) 390; Poke v. Kelly, 13 S. & R. 165. 
 In this case, however, the contract was executory. 
 
 " Wilson v. Cochran, 46 Pa. St. 257 ; 86 Am. Dec. 574 ; Poyntell v. Spenser, 
 f> Pa. St. 256. The same rule exists where the contract is executory. Ren- 
 shaw v. Gaus, 7 Pa. St. 117. But, of course, the purchaser must ultimately 
 give up the possession. He cannot keep the land and the purchase money too. 
 Congregation v. Miles, 4 Watts (Pa.) 146. 
 
 44 Hersey v. Turbett, 27 Pa. St. 424. See, also, Hulfish v. O'Brien, 5 C. E. 
 Green (N. J.), 230 and ante, 184. 
 
 "Bailey v. Snyder, 13 S. & R. (Pa.) 160; Dickinson v. Voorhees, 7 W. & S. 
 (Pa.) 353; Coughenour v. Stauft, 27 Pa. St. 191; Rodgers v. Olshoffsky, 110 
 Pa. St. 147; 2 Atl. Rep. 44. 
 
 46 Farmers' Bank v. Galbraith, 10 Pa. St. 490.
 
 668 MARKETABLE TITLE TO REAL ESTATE. 
 
 must amount to a clear failure of the title, 47 and if an incumbrance, 
 it must equal in amount the whole of the unpaid purchase money. 4 * 
 If the incumbrance goes only to a party 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 ex- 
 tent of the loss or injury suffered. 49 
 
 (3) Mere constructive notice of the existence of an incumbrance 
 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 
 
 "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; Perm, 
 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. A different rule pre- 
 vails where the contract is still executory. A suit to recover purchase money 
 on articles of agreements 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 contract 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. Jack- 
 man, 1 S. & R. (Pa.) 42; 7 Am. Dec. 611; Pennsylvania v. Sims, Add. 
 (Pa.) 9." 
 
 "McGinnis v. Noble, 7 W. & S. (Pa.) 454; Dentler v. Brown. 11 Pa. St. 298. 
 In these two cases it was also held that the purchaser was not bound to pay 
 off an incumbrance 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. 
 
 M 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
 
 DETENTION OB RESTITUTION OF THE PUECHASE MONEY. 669 
 
 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 in- 
 tended to risk the title, and upon this question his knowledge of 
 the existence of the defect or incumbrance is of the utmost im- 
 portance. 52 
 
 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 was entitled to dower in the land if she conveyed only her husband's 
 interest. No evidence of actual knowledge is in the case. He ia 
 
 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 com- 
 pliance 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 purchaser 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 incumbrance on the 
 premises, and whether the purchaser had waived the right to rescind by per- 
 forming the contract with notice of the incumbrance, 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 incum- 
 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 defeat 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. 
 
 Nor 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 executory con- 
 tract and recover back payments made in ignorance of the existence of an in- 
 cumbrance 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. 
 
 "Cases cited supra, n. 41, p. 666.
 
 670 MARKETABLE TITLE TO KEAL ESTATE. 
 
 (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, 53 and 
 was compensated for the risk in the collateral advantages of the 
 bargain ; M but such presumption is not conclusive, and may be re- 
 butted bj the purchaser in an action against him for the purchase 
 money. 55 This rule is materially modified by that which follows 
 next. 
 
 (5) 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 (he purchaser assumed the risk of the title; 
 that is, the payment of the incumbrance in addition to the purchase 
 money. 06 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 exe- 
 cution of a written obligation to pay the same after he receives 
 
 "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. 
 608; Beidelman v. Foulk, 5 Watts (Pa.), 308; Ross' Appeal, 9 Pa. St. 491. 
 
 64 Lighty v. Shorb, 3 Pa. St. 452 ; 34 Am. Dec. 334 ; Youngman v. Linn, 52 
 Pa. St. 413. 
 
 55 Rawle Covts. 344. Thomas v. Harris, 43 Pa. St. 231 ; Drinker v. Byars, 
 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 arisen about the title, the pur- 
 chaser took from th* 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 mortgage. 
 " Such a decision," Mr. fcawie observes " >uld not have been made if the pur- 
 chaser's notice and the absence of a covenant were deemed conclusive evidence 
 that he was to run the risk of the title," and Mr. Ra,wle's observation is 
 fully sustained by the case of Smith v. Chaney, 4 Md. Ch. 246, where, under 
 precisely similar circumstances, the purchaser was denied relief, the court say- 
 ing that the agreement for indemnity was merged in the conveyance without 
 covenants. 
 
 M Wolbert v. Lucas, 10 Pa. St. 73 ; 49 Am. Dec. 578.
 
 DETENTION OK BESTITUTION OF THE PURCHASE MONEY. 671 
 
 notice of the incumbrance. 57 The exception would seem practically 
 to destroy the rule, for it is but seldom that the vendor delivers a 
 conveyance of the property until he has received a written obliga- 
 tion 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 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 
 
 " 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 Wolbert v. Lucas, supra, where there 
 was a conveyance without a covenant embracing the incumbrance. 
 
 M 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.) 
 589; Bradford v. Potts, 9 Pa. St. 37; Juvenal v. Jackson, 14 Pa. St. 419; 
 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 jury 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; 86 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 warranty, when 
 the purchaser had notice of it, yet, that, nevertheless, this would not con- 
 stitute 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 loss so by reason of hw knowledge; but in the latter 
 instance he is not allowed to detain the purchase money for the reason that
 
 672 MAEKETABLE 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- 
 
 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. 
 Tt 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 
 entitled to detain the purchase 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. 
 Riffe, 78 Ky. 352. The grounds upon which these decisions rest, so far as 
 they apply to the public highway, is the open, notorious and visible character 
 of the incumbrance. 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. 611; Lighty v. Shorb, 3 Pa. 447; 34 Am. Dec. 334; Kerr v. 
 Kitchen, 7 Pa. St. 486. In Steinhauer v. Witman, 1 S. & R. (Pa.) 438, 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 
 passed by, the dead cannot be resuscitated.' But in my sense of the Pennsyl- 
 vania system of law, there is a locus pcenitentm until the money is paid. 
 Something remains in fieri, and the plain dictates of common sense and com- 
 mon honesty point out the correct path to be pursued." It was probably this 
 vigorous language that led to the distinction of Judge YEATES 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. ) 256, 
 1888, S. C., 117 Pa. St. 298; 10 Atl. Rep. 889, it is said that the distinction 
 between detention and recovery back of the purchase money seems to have dis-
 
 DETENTION OR RESTITUTION OF THE PURCHASE MONEY. 673 
 
 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 Nor does it apply in a case in which 
 
 appeared. The writer cites no authority for this proposition, unless the cases 
 Johnson's Appeal, 114 Pa. St. 132; 6 Atl. Rep. 566; Wilson's Appeal, 109 
 Pa. St. 606, and Babcock v. Day, 104 Pa. St. 4, referred to in a general way 
 by him, are intended as such. In each of these the contract was rescinded on 
 the ground of mutual mistake of the parties respecting the title, a form of 
 relief to the purchaser referable to entirely different principles from those 
 upon which he is permitted to detain the purchase money in Pennsylvania. 
 See Rawle's Covts. (5th ed., 1887), 335, 351, where the right of the pur- 
 chaser in that State to recover back the purchase money (as damages) where 
 he has failed to take covenants, is denied. Also, Farmers' Bank v. Galbraith, 
 10 Pa. St. 490; Phillips v. Scott, 2 Watts (Pa.), 318; Cronister v. Cronister, 
 
 1 W. & S. (Pa.) 442; Frederick v. Campbell, 13 S. & R. (Pa.) 136; Boar 
 v. McCormick, 1 S. & R. (Pa.) 166. 
 
 "Rawle Covts. (5th ed.) pp. 554, 576, n. 
 
 "Christy v. Reynolds, 16 S. & R. (Pa.) 258; Ives v. Niles, 5 Watts (Pa.), 
 323; Poyntell v. Spencer, 6 Pa. St. 257; Wilson's Appeal, 109 Pa. St. 606. 
 42 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 evi- 
 dence to alter a written contract does not apply in such case. Walker v. 
 France, 112 Pa. St. 203; 5 Atl. Rep. 208. 
 
 "Spear v. Allison, 20 Pa. St. 200. 
 
 43
 
 674 MARKETABLE TITLE TO BEAL ESTATE. 
 
 the purchase was made at a sale under a decree of court,* 4 or a sale 
 by a sheriff or other officer. 65 
 
 Rules in respect to the detention of the purchase money, in many 
 respects similar to those which prevail in the State of Pennsyl- 
 vania, exist in the States of Texas and South Carolina, and may be 
 
 " Fox v. Mensch, 3 Watts (Pa.), 493; King v. Gunnison, 4 Pa. St. 171. The 
 purchaser may, it seems, object to the title before confirmation of the sale. 
 Kennedy's Appeal, 4 Pa. St. 149. This is unimportant, however, as respects 
 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 questioned 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 Str- : nhauer 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 undoubted, yet it 
 has never beer, understood, either by the profession or the public to be appli- 
 cable 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 pur- 
 chaser, 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 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 sale the interest of the debtor and no more is sold. The purchaser 
 acquires the title such 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 no concern. He agrees to 
 run the risk of the title. The rule is caveat cmptor." 
 
 "Friedly v. Scheetz, 9 S. & R. (Pa.) 161; 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 ) Under 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 cove- 
 nants 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 heretofore 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
 
 DETENTION OE RESTITUTION OF THE PCECHASE MONEY. 675 
 
 seen in a foregoing part of this work. 66 Some apology is due the 
 student for considering at such length rules relating to the deten- 
 tion 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. 
 
 have no relief whatever 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 purchase 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 though he has not been evicted ; and yet in the same opinion 
 it is said 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 to prove an eviction as if he were 
 plaintiff in an action of covenant. It will be remembered that there are 
 several decisions supporting both of these propositions. It is difficult to per- 
 ceive of what benefit to the purchaser is the permission to make a certain 
 defense without restoring the possession, when his right to make such a de- 
 fense is altogether predicated upon the fact that he has been turned out of the 
 possession, or has never been able to get possession. But these inconsistencies 
 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 perplexities into which a partial 
 departure from the rules of the common law controlling the rights of the 
 grantee have 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 reimbursement of the purchaser wher- 
 ever 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, pp. 449, 451. 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 THE 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, with 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 
 back 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 
 
 All the authorities agree upon this proposition. No case can bo 
 found in which, after a breach of any of the covenants for title, 
 
 '1 Sugd. Vend. (8th Am. ed.) ; Rawle Covt. (5th ed.) 326. Tillotson v. 
 Grapes, 4 N. H. 448. Banks v. Walker, 2 Sandf. Ch. (N. Y.) 348; Hunt v. 
 Arindon, 4 Hill (X. Y.), 345; 40 Am. Dec. 283; Miller v. Watson, 5 Cow. 
 (N. Y.) 195: 4 Wend. (N. Y.) 267; Moyer v. Shoemaker, 5 Barb. (N. Y. S. 
 C.) 319. Wilty v. Hightower, 6 Sm. & M. (Miss.) 345. Maner v. Washing- 
 ton, 3 Strobh. Eq. (S. C.) 171. Major v. Brush, 7 Ind. 232. Davenport v. 
 \Vhisler, 46 Iowa, 287: Wilson v. Irish, 62 Iowa, 260; 17 N. W. Rep. 511. 
 Templeton v. Jackson, 13 Mo. 78. Reuter v. Lawe, 86 Wis. 106. Earle v. 
 De Witt, 6 Allen (Mass.), 526. Joyce v. Ryan, 4 Greenl. (Me.) 101. Van 
 Riswick v. Wallach, 3 McArth. (D. C.) 388. In Bradley v. Dibrell, 3 Heisk. 
 (Tenn.) 522, where the covenantor included in his conveyance about twenty 
 acres to which he had no title and possession of which was not delivered to 
 the covenantee, compensation for the deficiency was dec/eed to the covenantee. 
 There was a constructive eviction here and the plaintiff might have recovered 
 at law on his covenants, but relief in equity seems to have been granted on
 
 BESTBICTION OF PUBCHASE-MONEY. 677 
 
 the covenantee has been permitted to recover back the purchase 
 money, eo nomine, in an action for money had and received to the 
 plaintiff's use. But this rule is comparatively of little importance 
 to the purchaser where an actual breach of the covenants has oc- 
 curred, 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 covenant 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 
 money upon like conditions. 4 A different rule prevails at the civil 
 law. If the purchaser does not get such a title as his contract 
 
 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 com- 
 pelled 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. 
 
 1 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- 
 oovers damages for the fraud or breach of warranty and not the consideration 
 money eo nomine. 
 
 'Ante, Ch. 26. 
 
 4 Mr. Rawle 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 plaintiff seeking to recover 
 it back 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 
 bp 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. Henoe, it may be safely said
 
 678 MARKETABLE TITLE TO BEAL ESTATE. 
 
 requires, he can, irrespective of the existence of covenants for title, 
 recover back the purchase money, 5 upon condition only that he 
 restore the premises to the vendor. 6 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 purchaser must seek his 
 remedy on the covenants therein contained, if any. 7 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. 8 
 
 If the purchaser accept a conveyance of the premises from a 
 third person instead of the seller, and is afterwards evicted by one 
 
 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 that of a 
 defendant, although ' the technical rule remits him back to hia covenants in 
 his deed,' yet, as has beeji said, it is now considered that he should not be 
 compelled to pay over purchase money which he might the next day recover 
 in the shape of damages for a breach of his covenants, and hence, to prevent 
 circuity of action, the defense at law of a failure of title has been in some 
 cases allowed." 
 
 s Bates v. Delavan, 5 Paige Ch. (N. Y.) 306, where it was said by WAL- 
 WOBTH, 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 was error in the es- 
 sentials of the agreement, although both parties were ignorant of the defect 
 which rendered the property sold unavailable to the purchaser for the pur- 
 poses for which it was intended. * * * I agree, however, with the learned 
 commentator on American Law (2 Kent Com. C2d ed.l 473), that the weight 
 of authority both in this State and in England is against this principle, so 
 far as a mere failure of title is concerned, and that the vendee who has con- 
 summated 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 purchaser may 
 upon a complete failure of the title, recover back the purchase money eo 
 nomine, though he has taken a conveyance with warranty. Boyer v. Amet, 
 41 La. Ann. 725. 
 
 Brown v. Reeves, 19 Mart. (La.) 235. 2 Kent Com. (llth ed.) 621 (472). 
 
 T Earle v. De Witt, 6 Allen (Mass.), 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; Beebe v. Swartwout, 3 Gil. (111.) 168. 

 
 RESTRICTION OF PURCHASE-MONEY. 679 
 
 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. 9 
 
 273. EXCEPTIONS. 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, 10 nor where the deed is so defective that it is absolutely 
 inoperative as a conveyance. 11 
 
 Baker v. Savidge, 53 Neb. 146; 73 N. W. Rep. 543. 
 
 10 D'Utricht v. Melchor, 1 Dall. (Pa.) 428. In this case it was objected that 
 the covenantee's remedy was by action on the covenant, or by action of deceit, 
 and that judgment against the defendant in the action brought could not be 
 y>leaded in bar, if covenant should afterwards be brought. But the court 
 held that assumpsit would lie. 
 
 "Tollensen v. Gunderson, 1 Wis. 104 (115). There was no lack of proper 
 words of conveyance in the deed in this case; the trouble lay in the descrip- 
 tion of the -premises, which was "the northeast quarter of the west half, con- 
 taining twenty-acres," without identifying the " west half."
 
 CHAPTER XXIX. 
 
 OF DETENTION OR RESTITUTION OF THE PURCHASE-MONEY IK 
 
 CASES OF FRAUD. 
 
 GENERAL BULE. { 274. 
 EXECUTED CONTRACT. 275. 
 WAIVER OF FRAUD. 276. 
 
 274. GENERAL RULE. Fraud by the vendor in misrepresent- 
 ing or concealing facts material to the validity of his title, sweeps 
 away, as a general rule, all distinctions between executory and 
 executed contracts, with respect to the right of the purchaser to 
 recover back or detain the purchase money on failure of the title. 
 What acts and conduct of the vendor constitute such fraud has 
 already been considered. 1 
 
 PROPOSITION VII. // the vendor fraudulently induced the pur- 
 chaser 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 con- 
 veyance was with or without covenants for title; and, if with cove- 
 nants for title, whether those covenants have or have not been 
 broken. 2 
 
 As a general rule, the purchaser cannot maintain an action to 
 recover back the purchase money on the ground that the vendor has 
 been guilty of fraud in respect to the title, unless he shows that he 
 has actually rescinded the contract, notified the vendor of his in- 
 tent to rescind, and has offered to restore the premises to the 
 vendor. 3 The purchaser, however, is not bound to rescind in order 
 
 'Ante, ch. 11. See, also, post, ch. 34. 
 
 J 2 Sugd. Tend. (8tb Am. ed.) chs. 13 and 15; 2 Warvelle Vend. 917; Rawle 
 Corts. (5th ed.) 55 167, 322. Post, ch. 35. Ante, ch. 11. Edwards v. Me- 
 Leay, Coop. 308. Young v. Harris, 2 Ala. 111. Diggs v. Kirby, 40 Ark. 420; 
 Sorrells v. McHenry, 38 Ark. 127. Coffee v. Newsom, 2 Kelly (Ga.), 460. 
 Haight v. Hayt, 19 N. Y. 474. Van Lew v. Parr, 2 Rich. Eq. (S. C.) 338. 
 Lamb v. Smith, 6 Rand. (Ya.) 552. Fristoe v. Latham, 18 Ky. Law R. 157: 
 36 S. W. Rep. 920. 
 
 1 Pearsoll v. Chapin, 44 Pa. St. 9; Babcock v. Case, 61 Pa. St 427; 10 Am. 
 Dec. 654 : Morrow v. Rees. 69 Pa. St. 368.
 
 DETENTION OR RESTITUTION OF PURCHASE-MONEY. 681 
 
 to obtain relief in a case of fraud. He may affirm the contract, 
 keep the premises, and maintain an action of deceit to recover 
 damages from the vendor. 4 In most cases, this is the better course 
 for him to pursue, where the purchase money has been fully paid, 
 because in such an action his recovery is not limited to the con- 
 sideration money; he may recover damages for the loss of his 
 bargain, though they be greatly in excess of the consideration 
 money and interest, while, it is apprehended, he could not recover 
 less than the purchase money and interest. These observations 
 apply as well where the contract has been executed by a conveyance 
 with covenants for title, as where it is executory, 5 for the measure 
 of damages upon a substantial breach of the covenants for title is 
 the purchase money, with interest. If the purchaser seeks relief 
 in equity, he can have a return of his purchase money, but no dam- 
 ages, because the remedy at law in that respect is complete. 6 There 
 can be no question of the right of the purchaser to recover back 7 or 
 to detain 8 the purchase money where the contract is executory and 
 the vendor has been guilty of fraud respecting the title, for he has 
 that privilege, though there has been no fraud and the title has 
 merely failed, except, of course, in cases where he has waived his 
 
 4 Ante, 101. Gwinther v. Gerding, 3 Head (Tenn.), 198. White v. Seaver, 
 25 Barb. (N. Y.) 235, where, however, the purchaser elected to rescind. The 
 converse of this proposition is also true. The purchaser is not bound to re- 
 sort to his remedy at law for damages, but may proceed in equity to rescind 
 the contract. Bodley v. Bosley, 1 Barb. Ch. (N. Y.) 125. "Courts of equity 
 have generally concurrent jurisdiction with common-law courts in those cases 
 where common-law courts have jurisdiction because of fraud; and though, 
 where the vendor has fraudulently misrepresented the quantity of land, and 
 thus induced the vendee to purchase, a common-law suit for deceit would lie, 
 yet this is concurrent with the right of the vendee to stay the collection in a 
 court of equity till abatement has been made." Kelly v. Riley, 22 W. Va. 250. 
 
 Ante, "Merger," ch. 27, 270. 
 
 2 Warvelle Vend. 955. Robertson v. Hogshead, 3 Leigh (Va.), 723 (667). 
 Bodley v. Bodley, 1 Sandf. Ch. (N. Y.) 125. 
 
 T Rawle Covts. (5th cd.) 319, et seq.; Dart's V. & P. 612; 2 Warvelle 
 Vend. 834, 851, 952. Wade v. Thurman, 2 Bibb (Ky.), 583, citing Co. Litt. 
 384a, Butler's note, and Com. Dig. 236. Lyon v. Anable, 4 Conn. 350. Spoor 
 v. Tilson, 97 Va. 279; 33 S. E. Rep. 609. 
 
 'Authorities cited, supra. Kerr on Fraud (Am. ed. ), 330. Green v. 
 Chandler, 25 Tex. 148. Settle v. Stephens, lg Tex. Civ. App. 695: 45 S. W. 
 Rep. 969. In such a case, the purchaser must show that the vendor inten- 
 tionally misrepresented or concealed some fact materially affecting the title. 
 Camp v. Pulver. 5 Barb. (N. Y.) 91.
 
 682 MAEKETABLE TITLE TO EEAL ESTATE. 
 
 objections to the title, or where the vendor has the right to remove 
 them. 9 
 
 If he gives notice of rescission based solely on the failure of the 
 abstract to show a good title, he cannot afterwards claim a right to 
 rescind on the ground of false representations as to the title. 10 
 
 The remedy by action to recover back the purchase money due 
 upon an executory contract for the sale of lands where the vendor 
 was guilty of fraud respecting the title, is concurrent with his 
 remedy at law for damages in an action of deceit, 11 and in equity, 
 for a rescission of the contract and return of the purchase money. 12 
 At common law neither failure of the consideration, 13 nor fraud, 14 
 in the procurement of a contract to pay money, evidenced by a 
 sealed instrument, could be set up at law in defense of an action on 
 that instrument, the defendant being remitted to equity for relief. 
 But now, by statute in most of our States equitable defenses are 
 fully allowed in actions on contracts, so that if the purchase money 
 of land be secured by bond or other sealed instrument, the defense 
 that the promise to pay was induced by the vendor's fraudulent 
 representations as to the title, may be made at law, as well as in 
 equity. 15 
 
 Ante, 184. Post, 329. Webster v. Haworth, 8 Cal. 21; 78 Am. Dec. 
 287. Here the purchaser had bought at a sale under execution, the execution 
 creditor falsely stating that his judgment was the first lien on the land. The 
 court said that the fact that the purchaser might have discovered the falsity 
 of the statement by examining the public records did not affect his right to 
 relief. Before such an examination could have been had, the sale would have 
 been over and the opportunity to purchase would have been lost. Benedict 
 v. Hunt, 32 Iowa, 27, was a suit by a mortgagee against one who had pur- 
 chased from the mortgagor and assumed the payment of the mortgage. It 
 was held that the fraudulent representations of the mortgagor respecting the 
 title were no reason for denying a foreclosure of the mortgage, but was a de- 
 fense against the plaintiff's claim for a personal judgment against the pur- 
 chaser. 
 
 "Hawes v. Swenzey, 123 Iowa, 51; 98 N. W. Rep. 586. 
 
 11 Ante, ch. 2. 
 
 "As in Smith v. Robertson, 23 Ala. 312. 
 
 "Vrooman v. Phelps, 2 Johns. (N. Y.) 178. 1 Waite's Actions & Defenses, 
 701. 
 
 "Wyche v. Macklin, 2 Rand. (Va.) 426. Franchot v. Leach, 3 Cow. (N. 
 Y.) 506. Rogers v. Colt, 1 Zab. (N. J. L.) 704. Holly v. Younge, 27 Ala. 
 203. 
 
 18 1 Waite's Actions & Defenses, 701, 3. Case v. Boughton, 11 Wend. (N. 
 Y.) 106. Mr. Warvelle, in his work on Vendors, page 853, says that as a rule
 
 DETENTION OR RESTITUTION OF PURCHASE-MONEY. 683 
 
 275. EXECUTED CONTRACTS. If the purchaser accepts a con- 
 veyance in ignorance of the fraud of his vendor in relation to the 
 title, he may, in an action for money had and received to his use, 
 recover back the purchase money paid, whether the conveyance 
 was with 18 or without covenants" for title. And in a like case he 
 may detain the purchase money, if unpaid, 13 though there were no 
 
 the only fraud which can be shown at law to avoid a deed, or the effect of 
 its covenants, is fraud in the execution, as where it was untruly read, or 
 where there has been a substitution of one instrument for another, and mat- 
 ters of that kind, but that misappropriation of collateral facts, fraud in the 
 consideration, etc., form no defense at law. This was true at common law in 
 an action on a sealed instrument, and the authorities cited by Mr. Warvelle 
 consist chiefly of early American decisions in which that rule was applied. 
 But that rule has, as we have seen (ante, p. 432), been very generally relaxed 
 by statute in the American States, so that in an action on a bond or other 
 sealed instrument the defendant is free to plead fraud in the procurement or 
 failure of the consideration, of the contract, and is no longer driven to equity 
 for relief. See, also, Rawle Covts. (5th ed.) 325, 332, n. 4; 1 Waite's 
 Actions & Defenses, 701. 
 
 16 Moreland v. Atchison, 19 Tex. 303. The cases illustrating this rule are 
 comparatively few, because resort is nearly always had to equity to rescind 
 the contract, cancel the conveyance and decree a restitution of the purchase 
 money where the grantor has been guilty of fraud. The same may be said of 
 cases where the consideration remains unpaid. A bill is generally' filed to 
 rescind the contract and restrain the grantor from proceeding to collect. 
 
 "Dart. V. & P. 612, 614; Rawle Covts. (5th ed.) 322; 2 Warvelle Vend. 
 917; Kerr on Fraud (Am. ed.), 327. Pearsoll v. Chapin, 44 Pa. St. 9. More- 
 land v. Atchinson, 19 Tex. 303. Tucker v. Gordon, 4 Des. (S. C.) 53. Nelson 
 v. Hamilton Co., 102 Iowa, 229; 71 N. W. Rep. 206. A purchaser who stipu- 
 lates for a perfect title, but is induced by the fraudulent representations of 
 the vendor to accept a quit-claim deed, may recover back the purchase money 
 or detain that which remains unpaid. Rhode v. Alley, 27 Tex. 443, citing 
 Mitchell v. Zimmerman, 4 Tex. 75; 51 Am. Dec. 717; York v. Gregg, 9 Tex. 
 85; Hays v. Bonner, 14 Tex. 629. The contract, however, was executory in 
 each of these three cases. Foster v. Gillam, 13 Pa. St. 340. In Treat v. 
 Orono, 26 Me. 217, it was held that the purchase money could only be re- 
 covered back from a party to the fraud. There the alleged fraudulent repre- 
 sentations and the conveyance had been made by a municipal officer, but the 
 purchase money had been paid to the municipality. In Walbridge v. Day, 31 
 111. 379; 83 Am. Dec. 237, it was held that one purchasing from the grantee 
 did not acquire his right to recover back the purchase money from the orig- 
 inal grantor who had fraudulently represented the title to be good. See, also, 
 Lejeune v. Herbert, 4 La. Ann. 59. 
 
 18 See authorities cited, supra. Whitney v. Allaire, 1 Comst. (N. Y.) 305. 
 White v. Lowry, 27 Pa. St. 254. Concord Bank v. Gregg, 14 N. H. 331. It 
 is a novel doctrine that a written warranty is a bar to a suit or defense
 
 684 MAKKETABLE TITLE TO HEAL ESTATE. 
 
 covenants. 19 The law does not require a purchaser to take cove- 
 nants as a protection against fraud. 20 If facts affecting the title 
 have been concealed from the purchaser, he will be entitled to 
 relief, even though he agreed to take the title such as it is. 21 
 
 Fraud by the grantor vitiates the contract so far as lie is con- 
 cerned, and he can claim no rights under it. Hence, it follows that 
 the purchaser may, where the conveyance contains covenants for 
 title, in case of fraud, detain the purchase money, whether the 
 covenants have or have not been broken. 22 He cannot be compelled 
 to remain, during the time in which the rights of an adverse 
 claimant may be asserted, in a state of uncertainty whether, on any 
 day during that period, he may not have his title impeached. 23 
 Where the contract is rescinded for defect of title concealed by the 
 
 founded on fraud in the same transaction, and the cases are numerous, not 
 only that fraud vitiates all contracts tainted by it, but that it may be set up 
 in contests as to the consideration of the sales, whether a warranty existed 
 or not. Smith v. Babcock, 2 Woodb. & M. (U. S.) 256. A vendor selling 
 land subject to a lien for unpaid purchase money, which he does not disclose 
 to the purchaser, is guilty of fraud, and the purchaser may rescind the con- 
 tract, though he holds under a conveyance with warranty. East Tenn. Nat. 
 Bank v, First Nat. Bank, 7 Lea (Tenn.), 420. Case may be maintained 
 against a vendor who falsely states that there are no incumbrances on the 
 estate, though the purchaser holds under a covenant against incumbrances. 
 Ward v. Wiman, 17 Wend. (N. Y.) 193; Wardell v. Fosdick, 13 Johns. (N. 
 Y.) 325; 7 Am. Dec. 383. Where the grantor fraudulently concealed the fact 
 that certain persons were in adverse possession of a part of the land, the 
 purchaser was allowed to detain the unpaid purchase money, though the per- 
 sons in possession disclaimed any interest in the land. Schamberg v. Leslie, 
 19 Ky. Law R. 599; 41 S. W. Rep. 265. 
 
 18 See authorities cited, supra. 1 Bigelow on Fraud, 415; Rawle Covts. 
 ( 5th ed. ) 322. Diggs v. Kirby, 40 Ark. 420. Tucker v. Gordon, 4 Des. ( S. 
 C.) 53. Rogers v. Norton, 101 Ky. 650; 42 S. W. Rep. 97. 
 
 20 Walsh v. Hall, 66 N. C. 233. 
 
 21 Farrell v. Lloyd, 69 Pa. St. 239, 248 ; Lloyd v. Farrell, 48 Pa. St. 73. 
 
 22 See authorities cited, supra. This proposition (in the form of an excep- 
 tion to the general rule that a purchaser holding under a deed with covenants 
 cannot detain the purchase money, unless the covenants have been broken) 
 has been reiterated so frequently in the decisions, that a citation of cases to 
 support it seems almost an affectation. Edwards v. McLeay, Coop. 308; 2 
 Swanst. 287. Stewart v. Insall, 9 Tex. 397. 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. Oilpin v. 
 Smith, 11 Sm. & M. (Miss.) 109. 
 
 23 1 Sudg. Vend. (8th Am. ed.) 375 (246).
 
 DETENTION OK RESTITUTION OF PURCHASE-MONEY. 685 
 
 vendor, the purchaser will be entitled to a decree for the repayment 
 of the purchase money, with costs, ana all expenses to which he 
 had been put relative to the sale, and for repairs during the time 
 he had possession. 24 
 
 In some cases it has been held that the covenantee cannot set up 
 fraud as a defense to an action for the purchase money ; not, in- 
 deed, because there is a remedy over on the covenants if the title 
 fail, but because a court of law cannot do complete justice between 
 the parties by placing them in statu quo, and that the remedy of 
 the covenantee in such case is in equity. 25 It may be doubted 
 whether this doctrine exists to any great extent in the United 
 States, in view of generally prevalent legislation admitting equit- 
 able defenses in actions founded on contracts. As a general rule 
 there is no doubt that fraud is equally cognizable at law as in 
 equity. The principal reason for going into a court of equity in 
 such cases is to obtain a discovery. 28 
 
 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. 27 What con- 
 duct or representations on the part of the vendor amount to fraud 
 will be found elsewhere considered in this work. 28 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- 
 cumbrances on the property. 29 
 
 27G. 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. 30 And when the fraud comes to his 
 
 :< 1 Sugd. Vend. (8tli Am. ed.) 375 (246). 
 
 'Cullum v. Branch Bank, 4 Ala. 35; 37 Am. Dec. 725; Stark v. Hill, 6 
 Ala. 785; Patton v. England, 15 Ala. 71. 
 
 =* Allen v. Hopson, 1 Freem. Ch. (Miss.) 276. 
 
 ^2 Sugd. Vend. (8th Am. ed.) 553. Early v. Garrett, 4 Man. & Ry. 687. 
 
 28 Ante, 101. 
 
 "Turnbull v. Gadsden, 2 Strobh. Eq. (S. C.) 14. 
 
 "2 Warvelle Vend. 919. Ante, 270.
 
 686 MARKETABLE TITLE TO REAL ESTATE. 
 
 knowledge after the acceptance of- a conveyance, he must promptly 
 exercise his right to rescind the contract. 31 It has been held in 
 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. 32 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 
 
 "Provident L. & Tr. Co. v. Mclntosh, (Kan.) 75 Pac. Rep. 498; Vaughn 
 v. Smith, 34 Oreg. 54; 55 Pac. Rep. 99. The case Lockridge v. Foster, 4 
 Scam. (111.) 570, affords a good illustration of this rule. There the cove- 
 nantee had taken possession of the premises with knowledge of the iraud, 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 discover- 
 ing 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, and rely on 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 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 pos- 
 session 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 premises. 
 More than four years afterwards, when sued for the balance of the purchase 
 money, he makes no complaint and interposes no defense, but permits judg- 
 ment to go against him, and not until a partial payment of the judgment 
 does he manifest any disposition towards a rescission of the contract. * * 
 After all these acts of confirmation and acquiescence, and five years subse- 
 quent to the discovery of the fraud, he conies 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 attaining this object.'' 
 
 "Peabody v. Phelps, 9 Cal. 214. Leonard v. Pitney, 5 Wend. (N. Y.) 30. 
 See, also, Peay v. Wright. 22 Ark. 198. The old English cases of Roswell v. 
 Vaughn, 1 Cro. James, 19G, and Lysney 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 have been a conveyance. Relief was denied the purchaser princi- 
 pally 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. (N. Y.) 314, the right of a covenantee to maintain an action to re-
 
 DETENTION OR RESTITUTION OF PURCHASE-MONEY. 687 
 
 the contract, lie loses none of his rights by accepting the deed. 33 In- 
 deed, 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 
 
 cover damages for deceit respecting the title was questioned by BRONSON, 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 shall 
 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 us, should not be regarded as settled by our decision." 
 It may be 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 v. Roberts, 32 Ala. 427. 
 
 "Ante, 269. 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, seem 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 has been 
 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 dclicto; and 
 the rule upon which damages are awarded is different in each instance. Nor 
 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, BRONSON, 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 ~be 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.
 
 688 MARKETABLE TITLE TO BEAL ESTATE. 
 
 damages by affirming the contract after discovering the fraud. 84 
 True, in such a case, the purchaser could not rescind 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 conveyance 
 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. 
 
 (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 (Civ. 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 money, but must first reconvey, or 
 offer to recovery, the premises. See, also, Bowden v. Achor (Ga.), 22 S. E. 
 Rep. 254. 
 
 "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 
 to rescind the contract, in other words, to say, as he may always do in the 
 first instance, that the whole is void. Certainly the jury might well have 
 been instructe'd 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: "Al- 
 though 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 prevented by 
 his own conduct from rescinding the contract in equity, and the relief in 
 equity can only be to rescind the contract. Damages or compensation must 
 be soiight at law."
 
 OF RESCISSION BY PROCEEDINGS IN EQUITY. 
 WHERE THE CONTRACT is EXECUTORY. 
 
 CHAPTER 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. 281. 
 
 PARTIES. 282. 
 
 277. GENERAL PRINCIPLES. On failure of the title the pur- 
 chaser, instead of taking such steps at law as amount to a rescission 
 of the contract, such as bringing an action to recover back the pur- 
 chase 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 re- 
 scinded. In such case the court, having before it all parties in in- 
 terest, 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 con- 
 tract, show that the title has failed or is not such as the law will re- 
 quire him to accept. The fact that the vendor honestly believed his 
 title to be good is no ground for refusing rescission. 2 The jurisdic- 
 tion 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 equity for rescinding the con- 
 
 1 Ante, 250. 
 
 'Boyce v. Grundy, 3 Pet. (U. S.) 210. 
 
 44
 
 690 MARKETABLE TITLE TO REAL ESTATE. 
 
 tract, 3 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 complains 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 cannot fix fraud upon the vendor in failing to disclose 
 defects in the title which might have been discovered by the 
 exercise of ordinary diligence. 5 
 
 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 held 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. 6 In an 
 early American case it seems to have been held that want of title 
 
 '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 
 fulfil it discharges the other, and a court of equity will annul a contract 
 which the defendant has failed to perform or cannot perform. Citing Bul- 
 lock v. Beemiss, 1 A. K. Marsh. (Ky.) 434; SKillern v. May, 4 Cranch 
 (U. S.), 137. But see Parks v. Brooks, 16 Ala. 529, where rescission was 
 refused a purchaser who had taken a bond for titles and could not show that 
 the obligor was insolvent. As a matter of fact suits in equity by the pur- 
 chaser for rescission where the contract is executory are comparatively infre- 
 quent. Usually the only relief he claims is the return of the purchase money, 
 and this may be obtained, as a general rule, more quickly and with less ex- 
 pense 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. Keebler, 5 Lea (Tenn.), 547. 
 
 Lewis v. White, 16 Ohio St. 441.
 
 OF THE SUIT FOB BESCISSION PBOPEB. 691 
 
 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 adjust 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 
 
 1 Hepburn v. Dunlop, 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. 
 
 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. 
 
 n Bruner v. Meigs, 64 N. Y. 506, per ALUIN, J. The authority of this case 
 may be doubted. The reason given for the decision would apply in most cases 
 in which the purchaser goes into equity for a rescission of an executory con-
 
 692 
 
 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. 14 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- 
 tract for the sale of lands which it would not specifically enforce, 15 
 leaving the parties to their remedy at law. 16 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, 17 Nor will he be entitled to this relief if, subse- 
 
 tract. Should the purchaser be compelled to await the motions of the vendor? 
 If the purchase money was paid to the latter he would probably concern 
 himself no further about the agreement. . 
 
 "Ante, "Waiver of Objections," 80. 
 
 "Hyde v. Heller, 10 Wash. 586; 39 Pac. Rep. 249. 
 
 "What matters are sufficient to render a title doubtful or unmarketable 
 will be hereafter considered. Post, ch. 31. 
 
 "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. (N. 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 N. E. Rep. 703. 
 
 "Jackson v. Ashton, 11 Pet. (U. S.) 229. 
 
 " Knatchbull v. Grueber, 3 Mer. 124.
 
 OF THE SUIT FOB RESCISSION PROPER. 693 
 
 quent to the contract, he places a mortgage on the premises. 18 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. 19 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. 20 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. 21 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 
 title apparently good, the burden shifts to the purchaser, and com- 
 pels him to show in what respect the title is defective or objection- 
 able. If the plaintiff cannot convey the title mentioned in the 
 agreement, his bill will be dismissed, though such objection be not 
 made in the answer, nor taken until a hearing before a master upon 
 a reference. 22 But it has been held that a purchaser who by the 
 exercise of due diligence might have discovered an objection to the 
 title and set up the same as a defense in a suit for specific per- 
 formance before decree, could not, after decree, avail himself of 
 such defect by additional pleadings, though he might, if the vendor 
 be insolvent, suspend payment of the purchase money until the 
 defect could be investigated. 23 
 
 "Haber v. Burke, 11 S. & R. (Pa.) 238. 
 
 "Broyles v. Bell, 18 W. Va. 514. Bailey v. James, 11 Grat. (Va.) 468; 
 62 Am. Dec. 659. 
 
 w Bates v. Delavan, 5 Paige Ch. (N. Y.) 299. Chambers v. Tulane, 9 N. J. 
 Eq. 146. 
 
 "Glasscock v. Robinson, 21 Miss. 85; Heath v. Newman, 11 Sm. & M. 
 (Miss.) 201; Harris v. Bolton, 7 How. (Miss.) 167. 
 
 "Park v. Johnson, 7 Allen (Mass.) 378. 
 
 "Denny v. Wickliffe, 1 Mete. (Ky.) 216.
 
 694 MABZETABLE TITLE TO EEAL ESTATE. 
 
 It has been held that a vendor claiming specific performance of 
 the contract, and resting the validity of his title upon a particular 
 ground, cannot, after litigation has begun, shift his ground and 
 allege a valid title from other sources, and this upon the principle 
 that a party giving a reason for his conduct and decision touching 
 anything involved in a controversy, cannot, after litigation has 
 begun, change his ground and put his conduct upon another and 
 different * construction. 24 
 
 279. PLACING THE PARTIES IN STATTT 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 in- 
 junction 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 done, there can be no rescis- 
 sion, and the parties will be left to their remedies at law upon the 
 contract. No 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. 25 
 
 "Weinstock v. Levison, 26 Abb. N. Cas. (N. Y.) 244, citing Ohio & Miss. 
 R. Co. v. McCarthy, 96 U. S. 258, a case, however, which did not arise be- 
 tween vendor and purchaser. It may be doubted whether the rule thus de- 
 clared would apply in a case in which the change of position by the vendor did 
 not operate, and could not have operated to the injury of the purchaser. 
 
 25 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,
 
 OF THE SUIT FOB RESCISSION PROPER. 695 
 
 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 that condition. 26 Nor where he has 
 disabled himself from restoring the possession to the vendor by 
 conveying the premises to a stranger. 27 NOT where a portion of the 
 
 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 r. 
 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. Whelen, 33 Miss. 
 646; Williamson v. Ramey, 1 Freem. Ch. (Miss.) 112; Hill v. Samuel, 31 
 Miss. 307. Smith v. Busby, 15 Mo. 387 ; 57 Am. Dec. 207. Young v. Stevens, 
 48 N. H. 133; 2 Am. Rep. 202. Sandford v. Travers, 7 Bosw. (N. Y.) 498; 
 More v. Smedburgh, 8 Paige Ch. (N. Y.) 600; Tompkins v. Hyatt, 28 N. Y. 
 347; Goelth v. White, 35 Barb. (N. Y.) 76; Schroeppel v. Hopper, 40 Barb. 
 (N. Y.) 425; Van Epps v. Harrison, 5 Hill (N. Y.), 63; 40 Am. Dec. 314; 
 Tallmadge v. Wallis, 25 Wend. (N. Y.) 107; Masson v. Bovet, 1 Den. (N. Y.) 
 73; 43 Am. Dec. 651. Nicoll v. Carr, 35 Pa. St. 381; Congregation v. Miles, 
 4 Watts (Pa.), 146. 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. 
 Goodrich, 15 Wis. 679. In Perry v. Boyd, 126 Ala. 162; 28 So. Rep. 711, it 
 was held that the grantee may maintain his bill 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 of an easement the right to excavate a tunnel through lands of the 
 grantor. The bill averred a willingness to reconvey. 
 
 "Dart V. & 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 made 
 lasting improvements, it was held that he could not put the vendor in statu 
 quo, and, therefore, could not rescind the contract. Patten v. Stewart, 24 
 Ind. 332. 
 
 "McKeen v. Beaupland, 35 Pa. St. 488; Rogers v. Olshoffsky, 110 Pa. St. 
 147; 2 Atl. Rep. 44. Colyer v. Thompson, 2 T. B. Mon. (Ky.) 16. Where the 
 vendor by agreement with the vendee, conveys portions of the premises in lots 
 to third persons, as they are sold off 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.
 
 696 MARKETABLE TITLE TO REAL ESTATE. 
 
 premises have been sold under execution against him. 28 Nor where 
 he has materially impaired the value of the land by cutting down 
 the timber. 29 But in cases in which the purchaser acted in good 
 faith and the injury to the premises is capable of ascertainment 
 and deduction from the purchase money he is seeking to recover 
 back, he may have a rescission of the contract though the property 
 cannot be restored in specie. 30 If the purchaser be unable to put 
 the vendor in statu quo, he has his remedy over by action on the 
 case if the vendor was guilty of fraud. 31 
 
 It has frequently been held that a contract for the sale of lands 
 cannot be partially rescinded, that it must be rescinded in toto, 
 if at all, 32 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. 34 In such an action the 
 
 28 Clark v. Briggs, 5 La. Ann. 624. 
 
 * Gehr v. Hagerman, 26 111. 459. 
 
 so 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, 32 Ala. 413; Young v. Harris, 2 Ala. 108; 
 Elliott v. Boaz, 9 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. 
 
 "Htfgan v. Weyer, 5 Hill (N. Y.), 389. 
 
 "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. 
 
 3$ Davison v. Perrine, 22 N. J. Eq. 87. 
 
 "I Sugd. Vend. (8th Am. ed.) 276 (179). Nicoll v. Carr, 31 Pa. St. 381. 
 Fbwler v. Cravens, 3 J. J. M. (Ky.) 3; 20 Am. Dec. 153.
 
 OF THE SUIT FOE RESCISSION PROPER. 69? 
 
 purchaser cannot set up paramount title in the third person as a 
 defense. 36 The purchaser is estopped to deny the title of his vendor. 
 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 
 the title thus acquired. 36 If, however, he purchases in ignorance 
 of the fact that the paramount title already exists in himself he 
 cannot be required to surrender the possession before asserting his 
 better title. 37 
 
 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 
 rents and profits, to the vendor, and the purchase money, with in- 
 terest, costs and expenses for improvement, to the purchaser. 38 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. 39 It may be doubted whether 
 such a rule would apply where the court has power to enter a judg- 
 
 " Fowler v. Cravens, 3 J. J. M. (Ky.) 3; 20 Am. Dec. 153. 
 
 'Grundy v. Jackson, 1 Litt. (Ky.) 11. Officer v. Murphy, 8 Yerg. (Tenn.) 
 502. Ante, p. 482. 
 
 n Southcomb v. Bishop, 6 Hare, 213. 
 
 "Masson v. Bovet, 1 Den. (N. Y.) 74; 43 Am. Dec. 651. Bank v. Ettinge, 
 40 N. Y. 391. 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 under 
 a mistake of fact may be recovered back. If the facts could be so arranged 
 that there should be no loss to either party there would be nothing to contend 
 about, and so no such actions would be brought. * * * It is an ordinary 
 result of the transaction that the party receiving has incurred liabilities or 
 paid money which he would not have done except for the receipt of the 
 money." 
 
 * Ante, 258. Eames v. Der Germania Turn Verein, 8 111. App. 663, citing 
 Hunt v. Silk, 5 East, 449, and Norton v. Young, 3 Greenl. (Me.) 30.
 
 698 MARKETABLE TITLE TO EEAL ESTATE. 
 
 ment or decree conditioned to be inoperative unless the premises be 
 restored to the vendor. 40 
 
 The cases in which the purchaser may have a rescission of the 
 contract without restoring the premises to the vendor have been 
 elsewhere considered in this work/ 1 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 ob- 
 ligation to convey executed by the vendor, be surrendered by the 
 purchaser and canceled. 42 
 
 280. INTEREST. BENTS AND PROFITS. IMPROVEMENTS. 
 On recission 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 purchase 
 money he has paid. 43 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, 44 taking into consideration, of course, any 
 
 * 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. 
 
 "Ante, 261. 
 
 4J McKay v. Carrington, 1 McLean (U. S.), 50. 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. 
 
 "2 Warvelle Vend. 885. 
 
 44 2 Warvelle Vend. 885. Watts v. Waddle, 6 Pet. (U. S.) 389. Mclndoe 
 v. Monnan, 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. Depew, 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; F?tzhugh 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 favor of the 
 vendor for rents and profits on the ground that he had been guilty of fraud
 
 OF THE SUIT FOE RESCISSION PEOPEB. 699 
 
 material inequality between the two items. 43 Even where the 
 vendor fraudulently concealed a defect in his title he has been al- 
 lowed the value of the rents and profits enjoyed by the purchaser. 46 
 But it has been held that he will not be entitled to an account of the 
 rents and profits where by his fraudulent conduct the purchaser 
 has been induced to remain in possession a long time in expectation 
 that a good title will be made. 47 Nor where the purchaser, not yet 
 having surrendered possession of the premises, 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. 48 In England it is said to be usual and proper 
 to specify in every case the day on which the purchase is to com- 
 pleted, when the purchaser is to have possession, and when he is to 
 receive the rents and profits and pay interest on the purchase 
 money. 49 The purchaser cannot, however, in equity avail himself 
 
 respecting the title, and further, that the real owner was proceeding in eject- 
 ment 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. 
 
 48 2 Warv. Vend. 885. Doggett v. Emerson, 1 Woodb. & M. (U. S.) 195, 
 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 the land are equivalent would not apply. A head note to the case of 
 Williams v. Wilson, 4 Dana (Ky.), 507, fairly digests the opinion of the 
 court as follows : " There never has been any universal rule for adjusting and 
 setting off rents against interest upon the rescission of a sale of land. As 
 cases vary, the equity of allowing rents and interest on the purchase money 
 must vary the object being in every case to place the parties as nearly as 
 possible in statu quo." In the absence of evidence to the contrary, the use of 
 the premises and interest on the purchase money will be held to balance each 
 other. Talbot v. Sebree, 1 Dana (Ky.), 56. 
 
 "Bryant v. Booth, 30 Ala. 311; 68 Am. Dec. 117, which, however, was a 
 case in which the contract had been executed. Richardson v. McKinson, Litt. 
 Sel. Cas. (Ky.) 320; 12 Am. Dec. 308; Peebles v. Stephens, 3 Bibb. (Ky.), 
 324 ; 6 Am. Dec. 660. The same rule has been applied where the contract 
 was rescinded on the ground that the vendor had fraudulently represented the 
 quality of the land. Thompson v. Lee, 31 Ala. 292. In Walker v. Ogden, 1 
 Dana (Ky. ), 247, the purchaser had bought in a paramount title to the 
 premises, and a bill by the vendors for an account of the rents and profits 
 was dismissed on the ground that the question of title being undetermined 
 the remedy of the plaintiff was at law by action of ejectment. 
 
 4T Seamore v. Harlan, 3 Dana (Ky.), 410. 
 
 "McLaren v. Irvin, 63 Ga. 275. 
 
 "Dart V. & P. (5th ed.) 127.
 
 700 MARKETABLE TITLE TO REAL ESTATE. 
 
 of a breach of these conditions unless time be of the essence of the 
 contract. 60 
 
 It is not necessary that a purchaser, seeking a decree rescind- 
 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. 61 If the contract be rescinded at the suit of the pur- 
 chaser, for want of title in the vendor, and no provison be made for 
 redelivery of the land to the vendor, he, or his heirs, may maintain 
 a bill against the purchaser for an account of the rents and profits. 62 
 If the purchaser committed waste while in the occupation of the 
 premises, the damages thence accruing may be set off against his 
 claim for purchase money, interest and improvements. 53 But he 
 cannot be charged with ordinary deterioration or wear and tear of 
 the premises. 54 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. 65 
 
 "Id. 417. 
 
 "Dotson v. Bailey, 76 Ind. 434. 
 
 "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. 
 
 M 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. 
 
 "Williams v. Rogers, 2 Dana (Ky.), 374. Buchanan v. Lorman, 3 Gill 
 (Md.), 51. 
 
 "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."
 
 OF THE SUIT FOR RESCISSION PROPER. 701 
 
 It lias been held that the purchaser can only be charged with the 
 profits actually received, and that the question how much the 
 premises would have been worth to a man of ordinary industry 
 and diligence is irrelevant and immaterial. 66 But this rule, it is 
 apprehended, will not relieve the purchaser from his liability to 
 pay a fair rent for the premises where he has derived benefits from 
 the possession. 67 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 use 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 be 
 implied from his mere occupancy of the premises. 58 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. 59 
 
 We have seen that at law a purchaser makes improvements on 
 the premises at his own risk. 60 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 
 
 M Richardson v. McKinson, Litt. Sel. Cas. (Ky.) 320; 12 Am. Dec. 308, 
 reversing the judgment below. The court said: "An estate may be made 
 more or less productive, according to the skill and care with which it may 
 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 this 
 sort, ought not to be responsible for more. It has accordingly been 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, 489, 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. 
 
 M Ankeny v. Clark, 148 U. S. 345. No question as to interest seems to have 
 been raised in this case. Bardsley's Appeal, 10 Atl. Rep. 39. In Kirkpatrick 
 v. Downing, 58 Mo. 32; 17 Am. Rep. 678, 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. 
 
 M Aa was done in Andrews v. Babcock (Conn.), 26 Atl. Rep. 715. 
 
 Ante, 96.
 
 702 MAEKETABLE TITLE TO REAL ESTATE. 
 
 as a set-off against any demands which he may have against the 
 purchaser. 61 But even in 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. 62 Nor where he participates 
 
 W 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. 
 Gibert v. Peter, 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.) 88. 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 
 entiteld 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 elected torescind 
 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 upon 
 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. (Jf. 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. 
 
 2 Sugd. Vend. (8th Am. ed.) 515. Scott v. Battle, 85 N. C. 184; 39 Am. 
 Rep. 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.
 
 OF THE SUIT FOK EESCISSION PROPER. 703 
 
 in a fraudulent intent of the vendor in selling the property.' 8 The 
 vendor will of course be entitled to set off against the improve- 
 ments, the fair rental value of the land, 64 without the improve- 
 ments. 65 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.** It 
 has been held that if the purchaser recover the value of his improve- 
 ments against an adverse claimant, he must refund the amount 
 so recovered if the vendor afterwards establishes his title.* 7 
 
 The right of the purchaser to a 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 is placed as nearly as possible in statu quo, without regard 
 to arbitrary restrictions.* 8 
 
 281. 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. 69 It 
 is true that the vendor may be in possession of many facts respect- 
 ing the title which it would be exceedingly difficult for the pur- 
 chaser to ascertain, such as the happening of contigencies, on which 
 the validity of the title depends, e. g., the death of life tenants, or 
 the births of persons in remainder, and other facts of like kind 
 which cannot be discovered by examining the public records ; and 
 cases might occur in which the purchaser would be involved in 
 
 "Strike's Case, 1 Bland (Md.), 57. 
 
 M Cases cited supra throughout this section. Winters v. Elliott, 1 Lea 
 (Tenn.), 676; Mason v. Lawing, 10 Lea (Tenn.), 264. 
 
 "Lancoure v. Dupre (Minn.), 55 N. W. Rep. 129. 
 
 "Williams v. Rogers, 2 Dana (Ky.), 374; Seamore v. Earlan, 3 Dana ( 
 (Ky.), 411. 
 
 "Morton v. Ridgway, 3 J. J. Marsh. (Ky.) 258. 
 
 * Littlefield v. Tinsley, 26 Tex. 353, 358. 
 
 "See ante, 117, as to burden of proof in actions for breach of covenant 
 of seisin. 2 Rob. Pr. 190. Riddell v. Blake, 4 Cal. 264; Thayer v. White, 3 
 Cal. 228. Moss v. Davidson, 1 Sm. & M. (Miss.) 112. Grantland v. Wight, 
 5 Munf. (Va.) 295. In both these cases the contract had been executed.
 
 704 MARKETABLE TITLE TO RF-AT. ESTATE. 
 
 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 allega- 
 tion that the title is bad, put the vendor to the vexation and ex- 
 pense- 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. 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 re- 
 quired to take. 70 
 
 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. 71 
 
 282. PABTLES. All parties in interest must, of course, be 
 made parties to the suit for rescission. 72 An assignee of one of the 
 purchase-money notes has been held a necessary party. 78 So, also, 
 one who had purchased from the complainant. 74 If the purchaser 
 should die pending 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. 75 
 
 "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 T. Andrus, 36 N. J. Eq. 321. 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 proceeding in which the sufficiency of the title ia involved, 
 it would seem that the burden of proof should be 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 knowlegde of the party having the nega- 
 tive. 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 intelli- 
 , gently and not arbitrarily disposed. 
 
 "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. 
 
 "Pollock v. Wilson, 3 Dana (Ky.). 25. 
 
 "Yoder T. Swearingen, 6 J. J. 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 307a, 307b. 
 
 283. GENERAL RULES. Unless the contract contains a stip- 
 ulation to the contrary, there is always an implied agreement that 
 the title offered by the vendor shall be marketable. 1 A purchaser 
 of lands can never be required to accept a doubtful or unmarketable 
 title, 2 even though the fullest indemnity be offered by way of a 
 
 1 Scudder v. Watt, 90 N. Y. Supp. 605 ; 98 App. Div. 40. But there is no 
 implied agreement that the title shall be satisfactory to the purchaser or 
 his attorney. Green v. Ditsch, 143 Mo. 1 ; 44 S. W. Rep. 749. 
 
 '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 Mod. Eq. Jur., 607; Bispham Eq. Jur., 378; Atkinson Marketable 
 Title, ch. 1. 
 
 45
 
 706 MARKETABLE TITLE TO REAL ESTATE. 
 
 general warranty from a solvent vendor. 3 Specific performance is 
 a matter of grace and not of right, and will never be decreed when 
 the title is open to reasonable doubt. 4 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. 5 It is pos- 
 sible that a perfect title may be unmarketable; 6 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 
 a reasonable doubt that he is such, then the title, though really 
 good if all the facts could be known, will be deemed unmarketable. 7 
 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. 
 
 Batchelder v. Macon, 67 N. C. 181. 
 
 4 Mitchell v. Stinemetz, 97 Pa. St. 253. Maltby v. Thews, 171 HI. 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. 
 
 8 Adams Eq., m. p. 84; Beach Mod. Eq. Jur. 606. Stapylton v. Scott, 16 
 Ves. 272 ; Jervoise v. Duke of Northumberland, 1 J. & W. 539. If, after the 
 vendor has produced all the proof he can, a reasonable doubt still remains, 
 the title is not marketable, and the purchaser is not obliged to take it. 
 Shriver v. Shriver, 86 N. Y. 575. 
 
 Reynolds v. Strong, 82 Hun (N. Y.), 202; 31 N. Y. Supp. 329, where it 
 was said that a title may be 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. 
 
 ' Post, this ch. 289.
 
 OF DOUBTFUL TITLES. 707 
 
 It is impossible in the nature of things that there should be a 
 mathematical certainty of a good title. 8 Such a thing as absolute 
 security in the purchase of real estate is unknown. 9 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. 10 The purchaser cannot demand 
 a title absolutely free from all suspicion or possible defect. 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. 11 The 
 doubts must be such as will affect the market value of the estate." 
 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 accepting a title affected by them. 13 
 What matters of law or Avhat matters of fact are sufficient to make 
 a title so doubtful as to be unmarketable, cannot be indicated by 
 positive rules. Facts or questions which present no difficulties to 
 one judicial mind may, in the opinion of an another, raise in- 
 superable objections to the title. 14 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." 1 It has been 
 said that the title which a purchaser will be required to take should 
 be, like Cesar's wife, free from suspicion, but that the purchaser 
 will not be relieved on account of possibilities of defects, or mere 
 
 'Language of Lord HARDWICKE in Lyddall v. Weston, 2 Atk. 20. First 
 African Soc. v. Brown, 147 Mass. 196, 298; 17 N. E. Rep. 549. 
 
 Rawle Covts. for Title (5th ed.), 259. 
 
 10 Moser v. Cochran, 107 N. Y. 35; 13 N. E. Rep. 442; Scherraerhorn r. 
 Niblo, 2 Bosw. (N. Y.) 161. Hedderley v. Johnson, 42 Minn. 443; 44 N. W. 
 Rep. 527. Webb v. Chisolm, 24 S. C. 487. Crasser v. Blank, 110 La. 493; 
 34 So. Rep. 648. 
 
 "Todd v. Union Dime Sav. Inst., 128 N. Y. 636; 2*8 N. E. Rep. 504. 
 
 "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. Paimly v. Head, 33 111. App. 134. 
 
 "Nicol v. Carr, 35 Pa. St. 38. Kimball v. Tooke, 70 111. 553. 
 
 "Atk. Marketable Title (Law Lib.), ch. 1; 1 Sugd. Vend. (8th Am. ed.) 
 579 (387). 
 
 "Sedgwick v. Hargrave, 2 Ves. 59.
 
 708 MARKETABLE TITLE TO REAL ESTATE. 
 
 suspicions of faults ending only in suspicion." The doubt must be 
 " grave and reasonable." 1 If there is such doubt as to make it 
 probable that the purchaser's right may become a matter of investi- 
 gation, he will not be compelled to complete the purchase." If the 
 doubt arise upon a question of fact of such nature as not to admit 
 of proof, such as a statement that a certain act, which would make 
 void the vendor's title, had not been committed;" or, if a defect 
 appear and the title depends upon facts removing it, which facts 
 the purchaser can only establish by parol testimony should his 
 title be afterwards attacked, 20 the purchaser will be relieved. An 
 often-cited English case establishes the rule that a title is doubtful 
 when it is such as other persons may question, though the court 
 regards it favorably, and that if the doubt arise upon a question 
 connected with the general law, the court is to judge whether the 
 law is settled ; if not settled, or if extrinsic circumstances affecting 
 the title appear, which neither the court nor the purchaser can 
 satisfactorily investigate, the purchaser will be relieved. 21 
 
 The defect of title of which the purchaser complains must be 
 of a substantial character; one from which he may suffer injury. 
 Mere immaterial defects which do not diminish in quantity, qual- 
 ity, or value the property contracted for, constitute no ground upon 
 which he may reject the title. 22 Facts must be known at the time 
 which fairly raise a reasonable doubt as to the title; a mere pos- 
 sibility or conjecture that such a state of facts may be developed 
 at some future time is not sufficient. 28 
 
 "Gordon v. Champneys, Turn. & Russ. 88. Laurens v. Lucas, 6 Rich. 
 (S. C.) Eq. 217; Monagan v. Small, 6 Rich. N. S. (S. C.) 177. Carroll v. 
 McKahary, 55 X. Y. Supp. 113; 35 App. DiT. 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. 
 
 " Moore v. Appleby, 108 X. Y. 237 ; 15 N. E. Rep. 377 ; 1 Coll. 102. 
 
 M Per TIXDAL, C. J-, in Curling v. Shuttleworth, 6 Taunt. 121. 
 
 " 1 Sugd. Vend, (8th Am. ed.) 609. Lowe v. Lush, 14 Ves. Jr. 547. 
 
 "Moore v. Williams, 115 N. Y. 586; 22 N. E. Rep. 233. 
 
 a Pyrke v. Waddingham, 17 Eng. L. i Eq. 534; 10 Hare, 1. 
 
 "Riggs v. Pursell, 66 N. Y. 193; Mead v. Martens, 47 N. Y. Supp. 299; 
 21 App. Div. 134. 
 
 3 Gates v. Parmly, 93 Wis. 294; 66 N. W. Rep. 253; 67 N. W. Rep. 739.
 
 OF DOUBTFUL TITLES. 709 
 
 The purchaser is entitled to rescind the contract where the title 
 is doubtful, as well as where it is absolutely bad, but it has been 
 frequently said that equity will, in many cases, deny the vendor's 
 application for specific performance, when it would not entertain a 
 bill by the purchaser to rescind, in other words, that it requires a 
 stronger case to induce a chancellor to rescind a contract, than to 
 withhold his assistance in causing it to be executed. 24 This is doubt- 
 less true as to contracts which have been partly executed, as by pay- 
 ment of the purchase money on the one part, and delivery of pos- 
 session on the other, because in such cases more or less difficult v 
 will always be encountered in placing the parties in statu quo. But 
 where neither party has taken any step towards performance, no 
 reason is perceived why the same want of doubtfulness of title in 
 the vendor which takes away his right to specific performance, 
 would not sustain the purchaser's bill for rescission. 25 
 
 The doubt whether a title is or is not such as a purchaser can be 
 required to take, depends, sometimes, upon a question of law, some- 
 times upon a question of fact, and sometimes upon both. 2 ' In 
 theory the court must know whether the title is good or bad, if all 
 the facts respecting it are known and undisputed, for the court is 
 presumed to know the law applicable to those facts. 27 But no court 
 can be certain that, upon a doubtful question of law, e. g., whether 
 a certain limitation, after a life estate, was. a contingent remainder 
 or an executory devise, 28 another court of co-ordinate jurisdiction 
 in which the purchaser's title may be attacked, will pronounce the 
 
 "Dart Vend. (5th ed.) 734; Story Eq. Jur. 20% 693. Cans v. Renshaw, 
 2 Pa. St. 34; 44 Am. Dec. 152. Doubts as to the title may be sufficient to 
 justify the court in refusing to compel specific performance by the purchaser, 
 yet insufficient to sustain an application by the purchaser for rescission, 
 especially if he is in undisturbed possession of the premises. Duvall v. 
 Parker, 2 Duv. (Ky.) 182. 
 
 **The question, if any, is of little practical moment, except in cases where 
 the contract has been partly performed, for the purchaser accomplishes, as a 
 general rule, all that he desires by abandoning the contract and resisting the 
 vendor's demand for specific performance. 
 
 26 1 Sugd. Vend. (8th Am. ed.) 580; 2 Beach Mod. Eq. Jur. C 608. 
 
 "It the court is fully informed of the facts, it must know whether the 
 title is good or bad. If the facts are not fully disclosed, it may with pro- 
 priety doubt. O'Reilly v. King, 28 How. Pr. (N. Y.) 408. 
 
 "Roake v. Kidd, 5 Ves. 647.
 
 710 MARKETABLE TITLE TO REAL ESTATE. 
 
 same judgment. If it be necessary to declare a particular statute 
 unconstitutional before the vendor's title can be held good, the pur- 
 chaser cannot be required to take the title." 
 
 It is not customary to examine the title of a lessor, and no other 
 covenant for title from him can be required than that the lessee 
 shall quietly enjoy the estate. 30 Hence, it is not customary to raise 
 the objection that the title of the lessor is merely doubtful or 
 unmarketable, though it has been held that the title to a ground 
 rent may be rejected, if the title to the land out of which the rent 
 issued is unmarketable. 31 But a purchaser of a leasehold estate may 
 compel the seller to produce the lessor's title, and may reject it if 
 it proves to be bad, unless he purchased with notice of the defect.* 2 
 
 Whether or not a title is marketable is a question of law for the 
 court and not for the jury. The jury must find the facts, and the 
 court determine their effect. 33 The opinions of conveyancing coun- 
 sel, or lawyers in general, will not be received upon the question 
 whether a certain title is or is not marketable. 34 But a judgment 
 will not be reversed because of the admission of such testimony 
 when it appears that the entire title upon which such witness' 
 opinion was founded, was before the court. 35 If a purchaser sues 
 to recover damages against his vendor for breach of the contract, 
 it is not enough to show that the title has been deemed insufficient 
 by conveyancers; he must prove the title to be bad. 3 * He is not 
 exonerated, in refusing to perform the contract, by the advice of com- 
 petent counsel that the title is doubtful, if it be in fact good. He 
 
 "Daniell v. Shaw, 116 Mass. 582; 44 N. E. Rep. 791. 
 *Rawle Covts. for Title (5th ed.), 20, par: 5. 
 
 * Mitchell v. Stinemetz, 97 Pa. St. 251. 
 
 **1 Sugd. Vend. (8th Am. ed.) 554 (368). Purvis v. Rayer, 9 Pri. 488. 
 Parmly v. Head, 33 111. App. 134; 17 Wash. Law Rep. 332. 
 
 * Evans v. Gerry, 174 111. 595; 51 X. E. Rep. 615. Moser v. Cochrane, 107 
 N. Y. 35; 13 N. E. Rep. 442. Montgomery v. Pac. L. Co. Bureau, 94 Cal. 
 284; 29 Pac. Rep. 640; Winter v. Stock, 29 Cal 413; 89 Am. Dec. 57. Mead 
 v. Atgeld, 33 HI. App. 373; S. C. on app., 26 N. E. Rep. 388; Leahy v. Hair, 
 33 111. App. 461. Atkinson v. Taylor, 34 Mo. App., 442. Murray v. Ellis, 
 112 Pa. St. 485; 3 Atl. Rep. 845; Dalzell v. Crawford, 1 Pars. Sel. Caa. (Pa.) 
 37. But see Adams Eq. 198, and Hymers v. Branch, 6 Mo. App. 511, where 
 it was held that if the opinion of the court regarding a title might be fairly 
 questioned hy competent persons, the title must be considered doubtful. 
 
 " Mead V- Atgeld, supra. 
 
 "1 Sugd. Vend. (8th Am. ed.) 537. Canfield v. GUbert, 4 Esp. 221.
 
 OF DOUBTFUL TITLES. 
 
 takes the risk of the soundness, of the advice given," As a general 
 rule the vendor may remove doubts about the title at any time 
 before decree, unless time is of the essence of the contract." 
 
 284. CLASSIFICATION OP CASES IN WHICH THE TITLE 
 WILL BE HELD DOUBTFUL. The following classification of cases 
 in which the title will be considered doubtful, has been made by an 
 able text writer, 39 and is perhaps as logical and accurate as the 
 nature of the subject will admit : 
 
 (I) Where the probability of litigation ensuing against the pur- 
 chaser in respect of the matter in doubt is considerable; or, as it 
 ivas put by Alderson, B., where there is a "reasonable decent 
 probability of litigation." The court, to use a favorite expression, 
 will not compel the purchaser to buy a law suit.* 1 If 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. 43 
 
 (II) Where there has been a decision by a court of co-ordinate 
 
 "Montgomery v. Pacific L. Co. Bureau, 94 Cal. 284; 29 Pac. Rep. 640. 
 
 Post. ch. 32. Longworth v. Taylor, 1 McLean, (U. S.), 395. 
 
 Fry Spec. Perf. 870. 
 
 "Cattell v. Corrall, 4 Y. & C. Ex. 237. 
 
 "Post, this chapter, 200. Price v. Strange, 6 Madd. 159, 165; Sharp T. 
 Adcock, 4 Russ. 374; Haseltine v. Simmons, 6 W. R. 268; Pegler v. White, 
 33 Beav. 403. See, also, Potter v. Parry, 7 W. R. 182; Burnell v. Firth, 15 
 W. R. 546. A purchaser will not be compelled to accept a conveyance from 
 a trustee under a will when a suit is pending to test the validity of the will. 
 Hale v. Cravener, 128 111. 408; 21 N. E. Rep. 534. A 'title dependent on 
 questions as to the right of an executor to sell under the will, and as to 
 whether certain devisees had not elected to take under the will, both of which 
 questions are in litigation, is not marketable. Warren v. Banning, 21 N. Y. 
 Supp. 883. A title suggestive of future litigation is unmarketable. Beer v. 
 Leonard, 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 migfit be as free from ob- 
 jection as any other. Lesley v. Morris, 9 Phila. (Pa.) 110; 30 Leg. Int. 108. 
 
 a Seaman v. Vawdrey, 16 Ves. 390. A title is doubtful if it exposes the 
 purchaser to litigation. Freetly v. Barnhart, 51 Pa. St. 279; Speakman v. 
 Forepaugh, 44 Pa. St. 3G3. " 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 Cans v. Renshaw, 2 Pa. St. 34; 44 Am. Dec. 152. A title 
 dependent upon the question wheth'er certain acts, conduct or admissions 
 amount to an estoppel in pat's is unmarketable. McGrane v. Kennedy, 10 N. 
 Y. Supp. 119.
 
 712 MARKETABLE TITLE TO REAL ESTATE. 
 
 jurisdiction adverse to the title, or to the principle on which the 
 title rests, though the court thinks that decision wrong. 49 
 
 (III) Where there has been a decision in favor of the title, 
 which the court thinks wrong" 
 
 (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 lie open to reasonable 
 doubt in some other court.** 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 46 or other competent person 47 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 be 
 the certain conviction of the court, in deciding the point, that no 
 other judge would take a different view. 48 
 
 (V) Where the title rests on a presumption of fact of such a 
 kind that 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.* 9 
 
 43 Per ROMIIXY, 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. 
 
 ** Per ROMILLY, M. R., in Mullings v. Trinder, L. R., 10 Eq. 454. 
 
 46 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. 196; 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. 
 
 a 2 Beach Mod. Eq. Jur. 606. 
 
 48 2 Dart Vend. 1102. Rogers v. Waterhouse, 4 Drew, 32; Pegler v. White, 
 33 Beav. 403; Howe v. Hunt, 31 Beav. 420. But see Beioley v. Carter, L. R. 
 4 Ch. App. 230, and cases cited. 2 Dart Vend. 1103, n. 
 
 "Emery v. Grocock, 6 Madd. 54. Shriver v. Shriver, 86 N. Y. 575. To 
 this class, the author 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 Ves. 547), or where the title 
 depended upon the absence of notice of an incumbrance, of which absence the
 
 OF DOUBTFUL TITLES. 713 
 
 (VI) Where the circumstances amount to presumptive (though 
 net 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. 50 
 
 285. CLASSIFICATION OF CASES IN WHICH THE TITLE 
 WILL NOT BE HELD DOUBTFUL. The same author makes the 
 following classification of cases in which the court would not, as 
 he conceives, consider the title to be doubtful :" 
 
 (I) Where the probability of litigation ensuing against the 
 purchaser in respect of the doubt is not great; the court, to use 
 Lord Hardwicke'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." 
 
 (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. 63 
 
 (III) Where the question depends on the general law of the 
 
 render produced some evidence (Freer v. Hesse, 4 De G., M. & G. 495), or 
 upon the presumption arising from mere possession. Eyton v. Dieken, 4 Pri. 
 303. 
 
 "Warde v. Dixon, 28 L. J. Ch. 315; S. C., 7 W. R. 148. 
 
 "Fry Sp. Perf. (3d Am. ed.) 871. 
 
 "Lyddall v. Weston, 2 Atk. 19. In this case specific performance by the 
 purchaser was enforced, though there was a reservation of mines by the 
 crown, the court being satisfied that there was no subject-matter for the 
 reservation to act upon or that all legal right to exercise it had ceased. See, 
 also, Seaman v. Vawdrey, 16 Ves. 393; Martin v. Cotter, 3 Jon. & L. 496. In 
 Spencer v. Topham, 22 Beav. 573, an unwilling purchaser was compelled to 
 take a title depending 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. Sec, 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 doubtful or unmarketable in the absence of anything to show that the 
 title will probably be attacked. Bayliss v. Sinson, 110 N. Y. 621; 17 N. E. 
 Rep. 144. The bare possibility that minor heirs may attack the probate of 
 their ancestor'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. McCaffery 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.
 
 714 MARKETABLE TITLE TO EEAL ESTATE. 
 
 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." 54 An illustration of this rule, as applied in America, will 
 be found in the case of Fairchild v. Marshall. 55 In that case the 
 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 the 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. 56 
 
 (V) Where the title depends on a presumption, provided it be 
 such that if the question were before a jury, it would be the duty 
 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." 
 
 "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. 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 N. 
 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 N. 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. 
 
 55 42 Minn. 14 ; 43 N. W. Rep. 563. 
 
 M Radford v. Willis, L. R., 7 Ch. 7. 
 
 57 Emery v. Grocock, 6 Madd. 54 ; Barnwell v. Harris, 1 Taunt. 430. Thua, 
 where the recital of deeds raised the presumption that they contained nothing
 
 OF DOUBTFUL TITLES. 715 
 
 (VI) Where the doubt rests not on proof or presumption but on 
 a suspicion of mala fides. But a purchaser cannot be compelled 
 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 
 
 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. Watts, 6 Madd. 59; Magennis 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 such an execution, the title was held good. Causton v. Macklew, 
 2 Sim. 242. 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. 
 Butterfield v. Heath, 15 Beav. 408; Buckle v. Mitchell, 18 Ves. 100. 
 
 M This point, the author says, has given rise to some diversity of opinion. 
 In Hartley v. Smith, 6 Buck Bankr. C. 368, the title depended on a grant of 
 chattels, possession of which was conditionally reserved by the grantor in 
 fraud, it was alleged, of creditors. The purchaser was relieved from the bar- 
 gain on the ground that he had no adequate means of ascertaining the bona 
 fides of the transaction. See, also, Boswell v. Mendham, 6 Mad. 373. But 
 the mere possibility of fraud in extrinsic facts cannot always be held a 
 sufficient objection to the title. Cattell v. Corrall, 4 Y. & C. Ex. 228; Green 
 r. 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; Morri- 
 son 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 trutt, 
 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 Seldner v. McCreery, 75 Md. 287 ; 2S 
 Atl. Rep. 641.
 
 716 MARKETABLE TITLE TO EEAL ESTATE. 
 
 title is derived. 59 Thus, where a conveyance of land 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 
 
 " Preissenger v. Sharp, 39 St. Rep. (N. Y.) 260; 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., 33 Hun (N. Y.), 
 393. Close v. Stuyvesant, 132 111. 607; 24 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 
 for the benefit of creditors, was in substance a purchase by the assignee him- 
 self: W T ohlfarth v. Chamberlain, 6 N. Y. St. Rep. 207. Whether a sale under 
 an execution, creating an apparent cloud on the vendor's title, was fraudulent, 
 irregular and void: Morgan v. Morgan, 2 Wh. (U. S.) 290. Whether a pur- 
 chase of part of the estate of a decedent by his executor, in good faith, was 
 valid. Weil v. Radley, 52 N. Y. Supp. 398. In Gans v. Renshaw, 2 Pa. St. 34 ; 
 44 Am. Dec. 152, it being questionable whether the conveyance under which 
 the vendor held, was fraudulent and void, the purchaser was relieved. Where 
 the vendor claimed title through a sheriff's deed, and affidavits had been filed 
 in the proceedings in which such sale had been made, showing that the sale 
 had been procured to defeat the rights of third persons who had recovered 
 judgment in ejectment for the land, the title was held unmarketable. Herman 
 v. Sommers, 158 Pa. St. 424. Titles held marketable. Whether title dependent 
 on a sale, under decree, to the wife of a special guardian, was questionable, 
 the sale having been confirmed and 26 years having elapsed without attack 
 by parties interested. Strauss v. Benheim, 59 N. Y. Supp. 1054; 28 Misc. 
 Rep. 660. Whether the court may ratify a sale by executors to the wife of 
 one of the executors, none of the parties in interest having elected to exercise 
 their right to have the sale declared void. Rhodes v. Caswell, 58 N. Y. Supp. 
 470; 41 App. Div. 229. Whether a purchase by the wife of an executor and 
 daughter of the testator, at the executor's sale, after extensive advertising 
 and spirited bidding, and for full value, was valid. Miller v. Weinstein, 65
 
 OF DOUBTFUL TITLES. 717 
 
 for valuable consideration, it was held that a purchaser could not 
 be compelled to accept a title dependent upon such conveyance. 10 
 286. DOCTBINE OF DOUBTFUL TITLES AT LAW. Relief to 
 a purchaser in respect to a title absolutely bad and not merely 
 doubtful, may be administered in several ways. Thus, at law he 
 may maintain an action for breach of the contract, express or 
 implied, to convey a good title ; or he may rescind the contract and 
 maintain assumpsit to recover back so much of the purchase money 
 as may have been paid ; or to an action against him for damages in 
 failing to perform the contract on his part, or to recover the pur- 
 chase money, he may set up the vendor's want of title as a de- 
 fense. 61 In equity in case of a defective title he may file his bill 
 demanding a rescission of the contract, or specific performance of 
 the agreement to convey good title, or damages in lieu thereof, if 
 it appear that the vendor cannot perform the contract ; or to a bill 
 against him for specific performance he may show as a defense the 
 claimant's want of title. 62 But in respect to a merely doubtful title, 
 one which might upon protracted and expensive litigation with 
 third parties, prove valid, the purchaser had under the common- 
 law procedure no relief; all titles being considered at law either 
 good or bad. 63 Thus, if in an action at law against the purchaser 
 for breach of the contract, he was not able to demonstrate that the 
 plaintiff's title was absolutely bad, and could only suggest doubts 
 
 N. Y. Supp. 387; 52 App. Div. 533. Where a guardian failed to pay the 
 interest on a mortgage of the lands of his wards, who were his children, and 
 the lands were sold on foreclosure to one who afterwards conveyed them to the 
 guardian at the foreclosure price, it was held, in the absence of evidence of 
 bad faith or of injury to the wards, that the purchase was valid and the title 
 of the guardian marketable. Kullman v. Cox, 167 N. Y. 411; 60 N. E. Rep. 744. 
 
 "Tillotson v. Gesner, 33 N. J. Eq. 313. 
 
 "Ante, p. 3, Dart Vend. 975. Stevens v. Austin, 7 Jur. (N. S.) 873. 
 
 a Ante, p. 3, Dart Vend. 982. 
 
 * 1 Sugd. Vend. 596. Romilly v. James, 6 Taunt. 263 ; Camfield v. Gilbert, 
 4 Esp. 221. But see Simmons v. Haseltine, 5 C. B. (N. S.) 554. "There can 
 be no such thing as a doubtful title in a court of justice; it must be either 
 right or wrong, and the thickness of the medium through which the point 
 is to be seen, makes no difference in the end." Baron EYRE in Gale v. Gale, 
 2 Coxe, 145. But a purchaser has been permitted at law to show that the 
 vendor's title, apparently good, is liable to be defeated; as where a right to 
 re-enter upon a grantee or lessee for covenants or conditions broken exista. 
 1 Sugd. Vend. (8th Am. ed.) 597.
 
 718 MARKETABLE TITLE TO EEAL ESTATE. 
 
 arising upon points of law or upon facts affecting the title, judg- 
 ment for the plaintiff followed, and the purchaser was left to his 
 remedy, if any, in equity. 64 Such was formerly the state of the 
 law in England, and it is perhaps the same in some of the Ameri- 
 can States to-day. But now, by virtue of express statutory pro- 
 vision in England, 65 and in consequence of statutes in many of the 
 States abolishing all distinctions between legal and equitable pro- 
 cedure, the purchaser may have the full benefit of the doctrine 
 of doubtful titles in any action at law by or against him to enforce 
 any right founded on the contract of sale. 66 In some of the States 
 which retain the separate legal and equitable jurisdiction, a stat- 
 utory provision exists allowing the defendant in an action on the 
 contract to avail himself of any matter which would enable him 
 to relief in equity as a defense to the action. 67 Under such pro- 
 visions it is presumed that the purchaser, when sued for the price 
 
 "Moore v. Williams, 115 N. Y. 586; 22 N. E. Rep. 233. 
 
 1 Sugd. Vend. (8th ed.) 597; 17 & 18 Viet. c. 125, 83. 
 
 M 2 Beach Mod. Eq. Jur. 607. M. E. Church Home v. Thompson, 108 
 N. Y. 618; 15 N. E. Rep. 193; Moore v. Williams, 115 N. Y. 586; 22 N. E. 
 Rep. 233, disapproving Romilly v. James, 6 Taunt. 263. O'Reilly v. King, 
 2 Rob. (N. Y.) 587; M. E. Church Home v. Thompson, 52 N. Y. Super. Ct. 
 321, and Bayliss v. Stimson, 53 N. Y. Super. Ct. 225. Other New York cases 
 which follow O'Reilly v. King, supra, or maintain the same doctrine, and 
 which must be regarded as overruled or disapproved by Moore v. Williams, 
 supra, so far as the right to recover back the purchase money where the 
 title is merely doubtful is concerned, are Walton v. Meeks, 41 Hun (N. Y.), 
 311, and Murray v. Harway, 56 N. Y. 337. The equitable rules applicable 
 to a suit to compel a vendee to perform his contract, are applicable to an 
 action at law by him to recover back the purchase money on the ground that 
 the title is insufficient. Moore v. Williams, 115 N. Y. 586; 22 N. E. Rep. 233; 
 Methodist E. C. Home v. Thompson, 108 N. Y. 618; 15 N. E. Rep. 193; 
 Burwell v. Jackson, 9 N. Y. 335; Warren v. Banning, 21 N. Y. Supp. 883. 
 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 be allowed to recover. Murray v. 
 Ellis, 112 Pa. St. 492; 3 Atl. Rep. 845; Hertzberg v. Irwin, 11 Norris (Pa.), 
 48. The defense of doubtful title is as available in an action by the vendor to 
 recover the purchase money, as it would be in a suit by him for specific per- 
 formance. Reynolds v. Strong, 82 Hun (N. Y.), 202; 31 N. Y. Supp. 329. 
 Ladd v. Weiskopf, 62 Minn. 29; 64 N. W. Rep. 99. Whatever absolves a 
 purchaser in equity from his obligation to complete the contract, will dis- 
 charge him at law. Taylor v. Williams, (Colo.) 31 Pac. Rep. 505. Schroeder 
 v. Witham, 66 Cal. 636; 6 Pac. Rep. 737. 
 
 w It is so provided in Virginia, Code, 1887, 3299.
 
 OF DOUBTFUL TITLES. 719 
 
 of the property or for breach of contract in refusing to accept the 
 title, may set up as a defense, the fact that the title is so doubtful 
 that a court of equity would not compel him to accept it upon a bill 
 for specific performance. In such of the States as have no statute 
 admitting equitable defenses at law, it is presumed that the com- 
 mon law is in full force, and that a purchaser must seek his relief 
 in equity by suit for rescission, or injunction against the vendor's 
 action at law, in a case where the title is doubtful. 
 
 While, as we have seen, under modern systems of procedure, the 
 purchaser may avail himself at law of the objection or defense that 
 the title is doubtful or unmarketable though not absolutely bad, the 
 better opinion seems to be that he cannot, in an action for breach of 
 the contract, recover damages for the loss of his bargain, that is, 
 damages beyond the consideration money, interest, costs and ex- 
 penses, unless he can show that the title is absolutely bad. 88 Prac- 
 tically the distinction is of little value, except in cases in which the 
 contract fixes a sum as liquidated damages, and except in those 
 jurisdictions in which the purchaser is allowed damages for the loss 
 of his bargain ; for the generally prevailing rule is that in an action 
 for breach of the contract upon a failure of the title, the purchaser 
 cannot, in the absence of fraud, recover damages for the loss of his 
 bargain. 
 
 "Ingalls v. Hahn, 47 Hun (N. Y.), 104, which was an action to recover 
 back purchase money paid, and also to recover a certain sum as liquidated 
 damages provided for in the contract. The court said : " The nature of this 
 action should be kept in mind lest the principles governing it be confounded 
 with those relating to actions of a different character. This is not an action 
 to require the vendee to specifically perform his contract by accepting the 
 title offered. Nor is it an action by the vendee asking that a court of equity 
 relieve him from his contract upon the ground that the title offered is not 
 free from reasonable doubt. This is an action at law to recover damages 
 for a breach of the covenants set forth. In such an action the party bring- 
 ing it must satisfy the court that the title offered is absolutely bad. It will 
 not be sufficient to show that it is doubtful. Romilly v. James, 6 Taunt. 
 263; Boyman v. Gutch, 7 Bing. 379; Camfield v. Gilbert, 4 Esp. 221. O'Reilly 
 v. King, 2 Rob. (N. Y.) 587; M. E. Church Home v. Thompson, 20 J. t 8. 
 (N. Y.) 321; Bayliss v. Stinson, 21 J. A S. (N. Y.) 225. Roberts v. Mc- 
 Fadden, (Tex. Civ. App.) 74 S. W. Rep. 105, citing the text. To enable the 
 plaintiff to maintain this action the law requires that the defendant should 
 be proved to have been in default in the performance of his agreement. That 
 could only be done by proof that the defendant did not own the property; 
 that there were liens or incumbrances upon it, or that he had refused or
 
 720 MABKETABLE TITLE TO REAL ESTATE. 
 
 Where the title depends upon a fact which is left in doubt, 
 it has been said that a court of law will act upon the doubt as 
 well as a court of equity. 6 * Such a title, however, it seems would 
 be regarded at law as absolutely bad and not merely doubtful. 7 * 
 
 neglected to convey after a tender of the purchase price and request by the 
 plaintiff. Proof of one or the other of these facts was necessary to entitle the 
 plaintiff to recover the damages awarded. Walton v. Meeks, 41 Hun (N. Y.), 
 311, 314, and cases cited; Murray v. Harway, 56 N. Y. 337, 344. The cases 
 cited by the respondent (purchaser) are not in conflict with this doctrine. 
 In an action in equity to compel a specific performance, or for relief from a 
 contract on the ground of the uncertainty of the title offered, another and 
 different rule applies." Of the cases cited in the foregoing opinion, in but 
 two, it seems, Bayliss v. Stinson, 21 J. A S. (N. Y.) 225, and Walton v. 
 Weeks, 41 Hun (N. Y.), 311, did the plaintiff seek to recover anything more 
 than the purchase money, interest and expenses. In so far as they tend to 
 establish the proposition that the purchaser cannot recover back his deposit 
 unless the title is shown to be absolutely bad, and not merely doubtful, they 
 are disapproved in the more recent cases of M. E. Church v. Thompson, 108 
 N. Y. 618; 15 N. E. Rep. 193, and Moore v. Williams, 115 N. Y. 586; 22 
 N. E. Eep. 233. It is to be observed, however, that these two last-mentioned 
 cases do not in terms disapprove the proposition that a purchaser cannot re- 
 cover liquidated damages, or damages for the loss of his bargain, when the title 
 is merely doubtful and not absolutely bad, which is the main point decided in 
 Ingalls v. Hahn, supra. And in this case, the right of the purchaser to recover 
 back his deposit, where the title is doubtful only, seems to be recognized. 
 In Kralmer v. Adelsberger, 55 N. Y. Super. Ct. 245, which was an action to 
 recover back purchase money paid, the title was held absolutely bad and not 
 merely doubtful. Relief at law on the ground that the title was doubtful or 
 unmarketable, has been administered in the following cases : Hayes v. Nourse, 
 8 N. Y. State Rep. 397; Droge v. Cree, 39 N. Y. State Rep. 324; 14 N. Y. 
 Supp. 241; Hemmer v. Hustace, 51 Hun (N. Y.), 457; 3 N. Y. Supp. 850, 
 which was an action by the purchaser to recover damages for a breach of 
 contract. Moore v. Appleby, 108 N. Y. 237; 15 N. E. Rep. 377; Porterfield Y. 
 Payne, 11 N. Y. Supp. 31; Warren v. Banning, 21 N. Y. Supp. 883. In Penn- 
 sylvania, the question whether the doctrine of marketable title can be enforced 
 at law, cannot arise, because in that State there is no distinction between 
 legal and equitable relief, and an action to recover the purchase money is 
 treated as a suit for specific performance. See Nicoll v. Carr, 35 Pa. St. 381. 
 The common-law rule that the doctrine of doubtful titles cannot be enforced 
 at law, was approved in Kent v. Allen, 24 Mo. 98. But in Hymers v. Branch, 
 6 Mo. App. 511, a purchaser was allowed to recover back the purchase money 
 in an action at law, upon the ground that the title was doubtful. The deci- 
 sion in Kent v. Allen, supra, was not adverted to. 
 
 * 1 Sugd. Vend. ( 8th Am. ed. ) 602, citing Gibson v. Spurrier, Peake Ad. 
 Cas. 49. 
 
 w l Sugd. Vend. (8th Am. ed.) 597 (400). Simmons v. Haseltine, 5 C. B. 
 554.
 
 OF DOUBTFUL TITLES. 721 
 
 287. INCONCLUSIVENESS OF JUDGMENT OB DECREE. One 
 
 of the principal reasons for the rule that a purchaser cannot be 
 compelled to take a doubtful title, is that the decree of the court is 
 not binding upon those whose rights in the premises give rise to the 
 doubts of which the purchaser complains, they not being parties 
 to the suit for specific performance. They might raise the same 
 question in a new proceeding, and a different court with different 
 lights upon the subject might pronounce a judgment subversive 
 of the title which the purchaser was compelled to take. 71 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. 72 
 
 It has been said that it is only necessary, in determining whether 
 a title is marketable, to ascertain whether or not there is some prac- 
 tical 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. 73 On questions 
 
 / 
 
 "Post, 299. 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. Barren, 
 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. 431; 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; 16 So. Rep. 660. 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 irhrn 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. 
 
 "Flemming v. Burnham, 100 N. Y. 10: 2 N. E. Rep. 905; Vought v. 
 Williams, 120 N. Y. 253; 24 N. E. Rep. 195. 
 
 n Argall v. Raynor, 20 Hun (N. Y.), 267. 
 46
 
 722 MARKETABLE TITLE TO BEAL ESTATE. 
 
 of title depending on the possibility of future rights arising, the 
 court must consider the course which should be taken if those rights 
 had actually arisen, and were in course of litigation. 74 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 the question, and its decision 
 when made will be conclusive upon the parties. 76 It is to be ob- 
 served in this connection, that the rule which forbids the adjudica- 
 tion of a question of title, where all the parties in interest are not 
 
 74 Pyrke v. Waddingham, 10 Hare, 1. Sohier v. Williams, 1 Curt. C. C. 
 (U. S.) 479. Ebling v. Dwyer, 149 N. Y. 460; 44 N. E. Rep. 155. Mr. Frj 
 in his learned treatise on Specific Performance ( 862), 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 binds 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 (Osborne 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 bound by its decision. Glass T. 
 Richardson, 9 Ha. 701. If, therefore, 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 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 be either good or bad, 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 must know whether a title 
 be good or bad; when partially informed, it often may and ought to doubt.'' 
 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, but does not appear to reach cases where the doubt 
 turns upon a mere question of law, the court being at all times presumed to 
 know the law. 
 
 "Chesman v. Cummings, 142 Mass. 65; 7 N. E. Rep. 13, citing Sohier v. 
 Williams, 1 Curt. (C. C.) 479. Butts v. Andrews, 136 Mass. 221. Cornell 
 v. Andrews, 8 Stew. (N. J. Eq.) 7 ; 9 id. 321. Gills v. Wells, 59 Md. 492. 
 People v. Stock Brokers' Building Co., 92 N. Y. 98. Going v. Oakland, etc., 
 Soc., 17 Mich. 230; 75 N. W. Re> 462; Ladd v. Weiskopf, 62 Minn. 29; 64 
 N. W. Rep. 99; Matthews v. Lightner, 85 Minn. 333; 88 N. W. Rep. 992.
 
 OP DOUBTFUL TITLES. 723 
 
 before the court, does not apply as between vendor and purchaser, 
 when the objection is made that the title is defective, 76 though, of 
 course, the rights of persons not before the court cannot be con- 
 cluded by such an adjudication. The uncertainty as to what judg- 
 ment 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, 77 except, of 
 course, such as are not sui juris. In those States in which the sep- 
 arate equitable jurisdiction is maintained, no reason is "perceived 
 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 interest* 
 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 such con- 
 
 'Lockman v. Eeilly, 10 Abb. N. Cas. (N. Y.) 351. 
 
 "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, under 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 
 (Ky.), 303; Harris v. Smith, 2 Dana (Ky.), 11, 12; Denny v. Wickliff. 1 Met. 
 (Ky.) 216. See, also, Story Eq. Pi. 72, for general principles applicable 
 to this point. The purchaser, it seems, may bring in third parties in order 
 to clear up the title, but it is not incumbent on him to do BO; that is the 
 vendor's duty. Prewitt v. Graves, 5 J. J. Marsh. (Ky.) 114, 126.
 
 724 MAEKETABLE TITLE TO EEAL ESTATE. 
 
 tingent interests did not render the title of the vendor unmarket- 
 able. 78 
 
 288. SPECIAL AGREEMENTS RESPECTING THE TITLE. The 
 right of a purchaser to reject a doubtful title depends, of course, 
 upon the terms of his contract. 79 He will have no such right if he 
 has agreed to accept the title such as it is. 80 On the other hand, the 
 vendor cannot resort to parol evidence to remove doubts about the 
 title, if, by the contract, he is to furnish a " good title of record," 81 
 nor if he obliges himself to deliver an abstract showing a good 
 title, 82 nor if he contracts in express terms that the title shall be free 
 
 78 Matthews v. Lightner, 85 Minn. 333 ; 88 N. W. Rep. 992. 
 
 79 Ante, 6. A stipulation that the title shall be " first class," means simply 
 that it shall be marketable. Vought v. Williams, 120 N. Y. 253; 24 N. E. Rep. 
 195. " If title on examination be found insufficient," in a contract of sale, 
 means if title be found unsatisfactory, and not absolutely bad. Per ROBINSON, 
 C. J. O'Reilly v. King, 28 How. Pr. (N. Y.) 408, 415. 
 
 80 Ante, 11. Hume v. Pocock, L. R., 1 Eq. 423, 662. Brown v. Haff, 5 
 Paige CN.-Y.), 234, 241. Crawley v. Timberlake, 2 Ired. Eq. (N. C.) 460, 
 dictum. Powell v. Conant, 33 Mich. 396. An agreement by assignees in 
 bankruptcy, who had a defective title, that the purchaser should have an 
 assignment of the bankrupt's interest under such title as he lately held the 
 ame, was held to be sale of only such title as the assignees had. Freme T. 
 Wright, 4 Madd. 364; Molloy v. Sterne, 1 Dru. & Wai. 585; Lethbridgc T. 
 Kirkman, 25 L. J. (N. S.) 89; Phipps v. Child, 9 Drew. 709; Taylor v. Martin- 
 dale, 1 Y. & Coll. C. C. 658; Nouaille v. Flight, 7 Beav. 521. An agreement 
 to sell two leases and the trade, as the seller held the same, for the term, 
 and that the purchaser should accept the assignment without requiring the 
 lessor's title, held to prevent the purchaser from objecting to the lessor'i 
 title. 
 
 "Coray v. Matthewson, 7 Lans. (N. Y.) 80. Page v. Greely, 75 111. 400. 
 Sheehy v. Miles, 93 Cal. 288; 28 Pac. Rep. 1046; Benson v. Shotwell, 87 Cal. 
 49; 25 Pac. Rep. 249. In Jones v. Hanna, (Tex. Civ. App.) 60 S. W. Rep. 
 279, it was held that a purchaser, who had merely contracted for a good 
 title " of record," could not object to the title on the ground of facts dis- 
 qualifying a notary to take an acknowledgment of a deed in the vendor's 
 chain of title, inasmuch as the record itself showed a good title, and the 
 objection was founded on matter dehors the record. The decision seems 
 questionable; the same reasoning would prevent an objection to a deed in the 
 chain of title on the ground of lunacy, infancy, or other disqualification of 
 the grantor. 
 
 s: In Smith v. Taylor, 82 Cal. 534; 23 Pac. Rep. 217, it was held that the 
 only fair interpretation of a contract providing that an abstract of title should 
 be delivered by the vendor, the title to prove good, or no sale, and purchase 
 money paid to be refunded, was, that a full abstract should be furnished 
 showing a good title on its face, and that if such abstract did not show a good
 
 OF DOUBTFUL TITLES. 725 
 
 from incumbrances." If the contract provides that the abstract 
 shall show a marketable title, the vendor will not be permitted to 
 show by evidence aliunde that the title is good, M nor will the pur- 
 chaser be required to go outside of the abstract in examining the 
 title. 85 
 
 If the conditions of sale provide that the purchaser shall have 
 time to examine the title, and that if he be not satisfied with it, he 
 shall not be required to complete the purchase, the purchaser may 
 abandon the contract if he be in good faith dissatisfied with the 
 title, and specific performance will not be decreed against him, 
 though the court be of the opinion that the title was good. 86 An 
 agreement that the title shall be satisfactory to the purchaser'^ 
 
 record title, the purchaser should not be bound to make any investigation 
 outside of the abstract or to take the chances of any litigation which the 
 abstract showed to be either pending or probable, and that evidence aliunde 
 was not admissible, in an action to recover back the purchase money paid, 
 to show that the claims of persons who appeared, by the abstract of title, 
 to be asserting adverse title to the land, and who had suits pending in 
 respect thereto, were groundless. Taylor v. Williams, 2 Colo. App. 559: 31 
 Pac. Rep. 504. 
 
 "Evans v. Taylor, 177 Pa. St. 286; 35 Atl. Rep. 635. 
 
 "Parker v. Porter, 11 111. App. 602. 
 
 "Horn v. Butler, 39 Minn. 515; 40 N. W. Rep. 833, dictum. 
 
 86 Swain v. Burnette, 89 Cal. 564; 26 Pac. Rep. 1093. Averett v. Lips- 
 combe, 76 Va. 404. In this case the auctioneer had announced at the sale 
 that any purchaser should have the right to examine the title, and if he was 
 not satisfied with it he should not be required to comply with the terms of 
 the sale. BURKS, J., delivering the opinion of the court, said: " It is imma- 
 terial that this court now considers that the vendors were and are able to 
 make good title. That is not the question. The contract left it to the 
 purchaser to determine for himrelf the matter of title. If, on examination, 
 he was not in good faith satisfied with the title he was not to be bound. The 
 bargain was at an end." Citing Williams v. Edwards, 2 Sim. 78. See, also. 
 Watts v. Holland, 86 Va. 909; 11 S. E. Rep. 1015; Gish v. Moomaw, (Va.) 
 17 S. E. Rep. 324. Giles v. Paxson, 40 Fed. Rep. 283, where the subject is 
 considered at length. Where the contract provides " title on investigation to 
 be satisfactory" the purchaser must investigate for himself, and in due time 
 declare his determination. Taylor v. Williams, 45 Mo. 80. When the vendor 
 refuses to perfect the title, insisting that he sold only such title as he had, 
 but the contract provided that the title should be satisfactory to the pur- 
 chaser, the court will not undertake to determine whether his objection to the 
 title were well-founded; he may declare the title unsatisfactory and refuse 
 to complete the contract. Boyd v. Woodbury Co., 122 Iowa, 455; 98 N. W. 
 Rep. 274.
 
 726 MARKETABLE TITLE TO REAL ESTATE. 
 
 attorney will justify the purchaser in rescinding the contract if the 
 attorney in good faith, and not capriciously, declare himself dis- 
 satisfied with the' title. 87 If the parties agree that the contract 
 shall be void and the purchase money returned if the purchaser's 
 counsel shall be of opinion that the title is bad, and the counsel pro- 
 nounce against the title, the purchaser may reject it, even though 
 the vendor be able to remove the objections. 88 But such an opinion 
 will not sustain an action against the purchaser for breach of the 
 contract ; he must show the title to be bad. 89 
 
 On the other hand, an agreement that the title shall be satisfac- 
 tory to the purchaser has been construed, in effect, to mean that the 
 title shall be such as he should be satisfied with, and that such an 
 agreement does not authorize him to make capricious or unreason- 
 able objections, 90 nor constitute him the sole judge of the sufficiency 
 
 w Church v. Shanklin, 95 Cal. 626; 30 Pac. Rep. 789. Leach v. Rowley, 138 
 Cal. 709 ; 72 Pac. Rep. 403. A contract provided that the vendor's title should 
 he satisfactory to the purchaser's attorneys. After the abstract was furnished 
 the attorneys made certain requisitions which were promptly honored at a 
 considerable expense to the vendor, and the attorneys, by implication, ex- 
 pressed themselves as satisfied with the title. HeFd, that the attorneys could 
 not thereafter arbitrarily and abruptly declare the title unsatisfactory and 
 the contract at an end. Boyd v. Hallowell, (Minn.) 62 N. W. Rep. 125. 
 Where the agreement was that the title should be satisfactory to a certain 
 title insurance company it was said that if the title insurance company 
 reported the title imperfect the purchaser could recover his deposit. Pres- 
 brey v. Kline, 20 D. C. 513, 529. But, contra, in a case in which the report 
 of the title company was founded on a mistake of fact. Hoffman v. Colgan, 
 25 Ky. Law R. 98; 74 S. W. Rep. 724. It is competent for the parties to 
 contract that the title shall be such as would be pronounced good and mer- 
 chantable by any reputable attorney in a named city. Ellis v. Lockett, 100 
 Ga. 719; 28 S. E. Rep. 452. 
 
 "Delafield v. James, 18 Abb. Pr. (N. Y.) 221; 27 How. Pr. 357, citing 
 Williams v. Edwards, 3 Sim. 78; 2 Eng. Ch. Rep. 79. See Thompson T. 
 Avery, (Utah) 39 Pac. Rep. 829. 
 
 1 Sugd. Vend. (8th Am. ed.) 537. Canfield v. Gilbert, 4 Esp. 221. 
 
 80 Dart's Vend. (5th ed.) 158, where it is said that such an agreement means 
 that the title shall be marketable. Lord v. Stevens, 1 Yo. & Coll. Ex. 222. 
 Folliard v. Wallace, 2 Johns. (N. Y.) 395; Moot v. Business Men's Asso., 157 
 N. Y. 201; 52 N. E. Rep. 1. Fagan v. Davison, 2 Duer (N. Y.), 153. Kirk- 
 land v. Little, 41 Tex. 456. Taylor v. Williams, 45 Mo. 80. Where the con- 
 tract provides that the vendor shall give and the purchaser accept such title 
 as a certain title company should approve, and the company disapproves the 
 title offered, the vendor will not be permitted to show that the title is mar- 
 ketable unless approval by the company was prevented by the vendee. Flan-
 
 OF DOUBTFUL TITLES. 727 
 
 of the title, 91 nor deprive the vendor of the right to perfect the title 
 where time is not of the essence of the contract, 92 nor justify the 
 purchaser in rejecting the title by a simple expression of dissatis- 
 faction. 93 The dissatisfaction of the purchaser must be founded 
 upon a valid and legal objection. 94 Of course the parties may con- 
 tract if they choose, that the purchaser may abandon the sale ar- 
 bitrarily and without assigning reasons therefor, but such a con- 
 struction will not be given to the agreement that the title shall be 
 satisfactory to the purchaser, agreeably to the maxim ut res mngis 
 valeat quam pereat. 
 
 An agreement to furnish a correct and satisfactory abstract 
 does not mean merely an abstract which correctly and satisfactorily 
 shows the state of the record title. Hence, the abstract is insuffi- 
 cient if it shows the title to be outstanding in a stranger. 95 In a 
 case in which the parties placed the vendor's deed and the pur- 
 chaser's notes in the hands of a custodian to be delivered when the 
 vendor furnished evidence of title satisfactory to the custodian, 
 and the vendor failed to inform the custodian of the existence of 
 an attachment lien on the property, it was held that the vendor 
 could not compel specific performance on the ground that the cus- 
 todian had expressed himself as satisfied with the title. 96 Where 
 the vendor agreed to give, and the vendee to accept, such a title 
 as would be satisfactory to a certain title insurance company, and 
 the company expressed a willingness to insure the title, it was held 
 
 nigan v. Fox, 26 N. Y. Supp. 48; 6 Misc. Rep. 132. See, generally, upon the 
 proposition that a contract to do a thing to the satisfaction of another must 
 be given a reasonable construction, and that such person cannot arbitrarily 
 declare himself dissatisfied with the performance. Thomas v. Fleming, 26 
 N. Y. 33 ; Brooklyn City v. Brooklyn City R. Co., 47 N. Y. 475 ; 7 Am. Rep. 
 469 ; Bowery Nat. Bank v. Mayor, 63 N. Y. 336 ; Miesell v. Ins. Co., 76 N. Y. 
 115; Boiler Co. v. Gorden, 101 N. Y. 387; 4 N. E. Rep. 749; Dill v. Noble, 
 116 N. Y. 230; 22 N. E. Rep. 406. 
 
 "Folliard v. Wallace, 2 Johns. (N. Y.) 395, per KENT, Ch.; Regney T. 
 Coles, 6 Bosw. (N. Y.) 479. 
 
 94 Anderson v. Strasberger, 92 Cal. 38; 27 Pac. Rep. 1095. 
 
 M Beardslee v. Underbill, 37 N. J. L. 309. Curtis v. Hawley, 85 111. App, 
 429. 
 
 "Kirkland v. Little, 41 Tex. 456. 
 
 95 Curtis v. Hawley, 85 111. App. 429. 
 
 "Wolcott v. Johns., 7 Colo. App. 360; 44 Pac. 675.
 
 728 MARKETABLE TITLE TO KEAL ESTATE. 
 
 that the vendee could not thereafter insist on an objection to the 
 title. 97 
 
 Where the contract provided that the purchaser should be the 
 exclusive judge of the sufficiency of the title, it was held the right 
 thereunder to pass upon and reject the title, in good faith, passed 
 to an assignee of the purchaser. 98 
 
 Stipulations which exclude the right of the vendee to call for a 
 perfect title, must be clear and explicit. Where no title whatever 
 can be given, a court of equity will not compel specific performance 
 by the vendee merely because of a stipulation by him that there 
 should be no objection to the title. 99 
 
 289. PAROL EVIDENCE TO REMOVE DOUBTS. It has been 
 frequently held that if parol evidence should be necessary to remove 
 any doubt as to the validity and sufficiency of the vendor's title, the 
 purchaser cannot be compelled to complete the contract. 1 He can- 
 not be required to take a doubtful title which he must fortify, if 
 impugned, by resorting to evidence perishable in its nature, and 
 possibly unavailable to him when the necessity for it occurs. 2 It 
 must be 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 pais, or facts resting in the knowledge of witnesses. 
 
 97 Pope v. Thrall, 68 N. Y. Supp. 137 ; 33 Misc. Rep. 44. 
 
 M N. Y. Life Ins. Co. v. Gilhooly, 61 N. J. Eq. 118; 47 Atl. 494. 
 
 99 Simmons v. Zimmerman, 144 Cal. 256; 79 Pac. Rep. 451. 
 
 *2 Beach Mod. Eq. Jur. 608. Seymour v. Delancey, 1 Hopk. (N. Y.) 436; 
 14 Am. Dec. 552; Moore v. Williams, 115 N. Y. 586; 22 N. E. Rep. 233; 
 Irving v. Campbell, 121 N. Y. 353; 24 N. E. Rep. 821. McPherson v. Schade, 
 149 N. Y. 16; 43 N". E. Rep. 527; Holly v. Hirsch, 135 N. Y. 590; 32 N. E. 
 Rep. 709. Blanck v. Sadlier, 153 N. Y. 556; 47 N. E. Rep. 921. A purchaser 
 cannot be compelled to accept a title dependent upon an estoppel in pais. 
 Mullins v. Aiken, 2 Heisk. (Tenn.) 535; Topp v. White, 12 Heisk. (Tenn.) 
 165. Where the question was whether certain testimony sufficient!} estab- 
 lished the execution of a deed which would supply a missing link in the chain 
 of title, the title was held unmarketable. Griffin v. Cunningham, 19 Grat. 
 (Va. ) 571. So, also, where parol proof of a waiver of a covenant not to 
 assign a lease was necessary. Murray v. Harway, 56 N. Y. 337. 
 
 2 2 Beach Mod. Eq. Jur. 608. In the case of Fahy v. Cavanagh, 59 N. J. 
 Eq. 278 ; 44 Atl. Rep. 154, the question was whether a will had been properly 
 executed a fact which could be proven only by the testimony of the two 
 subscribing witnesses. The title depended entirely and exclusively upon what 
 their testimony might be, and this was held to render the tftle unmarketable.
 
 OF DOUBTFUL TITLES. 729 
 
 If those facts be clearly sufficient to establish the right of the ven- 
 dor as heir, it is apprehended that the purchaser could not object 
 to the title simply because it could not be established by record 
 evidence. 3 But a different case is presented where the fact of in- 
 heritance itself is in doubt. There may be circumstances to show 
 that the ancestor is not dead, or that he has left a will, or that the 
 vendor is not sole heir. Then it is that the title becomes unmar- 
 ketable from the necessity of parol proof to remove the doubts 
 which surround it. The court must determine in each case whether 
 the circumstances alleged are sufficient to create a reasonable doubt 
 as to the existence of the fact or facts upon which the validity 
 of the title depends. 
 
 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. 4 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. 5 Both of these statements are to be qualified, it is appre- 
 hended, to this extent, namely, that, in those States in which tho 
 registration of deeds is necessary to their validity, the vendor need 
 only show a prima facie valid record title. 6 The record title may 
 be apparently perfect, though in fact worthless, for some con- 
 veyance in the vendor's claim 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 
 
 '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 pood 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. 
 
 4 Turner v. McDonald, 76 Cal. 180; 18 Pac. Rep. 262; Reynolds v. Borel, 86 
 Cal. 538; 25 Pac. Rep. 67. Meeks v. Garner, 93 Ala. 17; 8 So. Rep. 378. 
 
 Calhoun v. Belden, 3 Bush (Ky.), 674, a case in which all the vendor's 
 record evidences of title had been destroyed in a fire which consumed the 
 register's office. 
 
 Hollifield v. Landrum, (Tex. Civ. App.) 71 S. W. Rep. 979, citing the text.
 
 730 MABKETABLE TITLE TO BEAL ESTATE. 
 
 show affirmatively the competency 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 be required to accept. 7 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 predeces- 
 sors 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 facts upon which the title de- 
 pends be of a nature not susceptible of proof, the title will be 
 deemed unmarketable. 8 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, 9 or that a certain deed was not fraudulent. 10 
 
 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 fa~t 
 cannot be in like manner proved, if necessary, at any time there- 
 after for the protection of the purchaser. 11 
 
 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. 12 If satisfactory means are at 
 
 1 Wilson v. Jeffries, 4 J. J. M. (Ky.) 494. 
 
 "1 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. 
 
 ' Lowe v. Lush, 14 Ves. 547. 
 
 "Hartly v. Smith, Buck Bank. Cas..360. 
 
 "Barger v. Gery, 64 N. J. Eq. 263; 53 Atl. Rep. 483. 
 
 1J 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 waa 
 marketable. Hedderley v. Johnson, 42 Minn. 443; 44 N. W. Rep. 527.
 
 OF DOUBTFUL TITLES. 731 
 
 hand for investigating and removing the doubt, the court will 
 decree specific performance. 13 Defects in the record or paper title 
 may be cured or removed by parol evidence, and the purchaser 
 compelled to take the title. 14 The vendor's bill for specific per- 
 formance will be retained until the doubts about the title are 
 either removed or confirmed. 15 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 hav- 
 ing color of title, or that, if attacked, the purchaser must, of neces- 
 sity, have at hand the means of showing that the attack cannot be 
 sustained. 
 
 290. 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 been referred those decisions which establish 
 the rule that a purchaser cannot be compelled to take an equitable 
 title, 16 or a title which is controverted in good faith by an adverse 
 
 13 Kostenbader v. Spotts, 80 Pa. St. 430. Hedderley v. Johnson, 42 Minn. 
 443; 44 N. W. Rep. 527. 
 
 14 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. Shrlver, 86 N. 
 Y. 575. 
 
 "Seymour v. Delancey, Hopk. Ch. (N. Y.) 436 (495) ; 14 Am. Dec. 552. 
 
 w l 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. Mor- 
 ris v. Mowatt, 2 Paige Ch. (N. Y.) 586; 22 Am. Dec. 661. Waggoner r. 
 Waggoner, 3 T. B. Mon. (Ky.) 556. Jones v. Taylor, 7 Tax. 240; 66 Am. 
 Dec. 48; Littlefield v. Tinsley, 26 Tex. 353. Ragan v. Gaither, 11 Gill A J. 
 (Md.) 472. Hendricks v. Gillespie, 31 Grat. (Va.) 181, 194. Newberry r. 
 French, 98 Va. 479; 57 N. E. Rep. 381. Reed v. Noe, 9 Yerg. (Tenn.) 282, 
 especially where the equity is controverted. Ankeny v. Clark, 148 U. 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. Haley, 57 Me. 347. A purchaser cannot be re- 
 quired 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, 8 Gill (Md.), 337. While the purchaser cannot be 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, ch. 32. 
 Andrew v. Babcock, (Conn.) 26 Atl. Rep. 715. In Jones v. Haff, 36 Tex. 
 678, it would seen at the first glance that the court held that the purchaser
 
 732 MARKETABLE TITLE TO REAL ESTATE. 
 
 claimant. 17 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 un- 
 marketable by a mere naked adverse claim to the premises without 
 color of title; otherwise a purchaser might always avoid perform- 
 ance of his contract by procuring a stranger to set up such a 
 claim. 18 But if there be color of outstanding title which may 
 
 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 wa* 
 in possession under a conveyance. Nothing more seems to have been decided 
 in the case than that a legal title could not be rejected on the ground that 
 ft 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. Mor- 
 rison v. Waggy, 43 W. Va. 405; 27 S. E. Rep. 214. A lis pendens renders 
 the title of the vendor unmarketable. 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. 656. 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 for 
 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 can- 
 not refuse to perform the contract. Laverty v. Moore, 33 N. Y. 658. 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 o'f 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. Norcross, 24 N. 
 J. Eq. 327. King v. Knapp, 59 N. Y. 462. The purchaser cannot be com- 
 pelled to complete the contract if the boundaries of the premises be involved 
 in doubt or dispute. Voorhees v. De Myer. 3 Sandf. Ch. (N. Y.) 614. 
 
 "Young v. Lillard, 1 A. K. Marsh. (Ky. ) 4S2. 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. Jack- 
 son v. Murray, 5 T. B. Mon. (Ky.) 184; 17 Am. Dec. 53. It is not a con- 
 clusive objection to the title that a third party has filed a bill against the
 
 OF DOUBTFUL TITLES. 733 
 
 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. 1 ' 
 Of course the title will be held unmarketable where there arc two 
 conflicting record titles to the property, 20 or where a record title 
 to the property is outstanding in another. 21 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. 22 But such purchaser cannot require 
 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. 23 
 
 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 Osbaldiston v. 
 Askew, 1 Russ. 160. Bentley v. Craven, 17 Beav. 204, where the purchase 
 money was detained in court until the rights of an adverse claimant could be 
 determined in a suit which was pending. In Francis v. Hazelrig, 1 A. K. 
 Marsh. (Ky.) 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 ia 
 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 war- 
 ranty in this case, but the foregoing observations would apply with equal force 
 where the contract is executory. In Edwards v. Van Bibber, 1 Leigh ( Va. ) , 
 183, a vendor was permitted to show that an escheat of the estate in contro- 
 versy 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 facts, 
 and not enforcible by the Commonwealth; and the purchaser was compelled 
 to take the title. 
 
 " Speak'man v. Forepaugh, 44 Pa. St. 373 ; Herman v. Somers, 158 Pa. St. 
 424. 
 
 "Reydell v. Reydell, 31 N. Y. Supp. 1. 
 
 "Darrow v. Cornell, 51 N. Y. Supp. 828. 
 
 K 1 Sugd. Vend. (8th Am. ed.) 593 (338). Carter v. Morris B. A L. Asso., 
 108 La. 143; 32 So. Rep. 473. Wollenberg v. Rose, (Oreg.) 78 Pac. Rep. 751. 
 
 ** Powell v. Powell, 6 Madd. 63.
 
 734 MABZETABLE TITLE TO EEAL ESTATE. 
 
 The purchaser cannot be compelled to take a title which is al- 
 ready in litigation or which will probably involve him in litiga- 
 tion ; he cannot be required to purchase a law suit. 24 It has been 
 held that a pending action, and lis 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. 25 Upon the same 
 principle, the purchaser cannot be compelled to accept the title, 
 if the premises are in the possession of an adverse claimant. 26 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 
 purchaser. 27 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 exe- 
 cuted a prior voluntary conveyance of the premises, even though 
 the purchase was made with notice of such prior conveyance. 2 * 
 If there be a reasonable doubt, however, as to whether the prior 
 conveyance was in fact without valuable consideration, it is appre- 
 hended that the subsequent purchaser could not be compelled to 
 take the title. Besides the vexation and expense of the suit, the 
 purchaser would run the risk of being unable to show that the 
 conveyance was voluntary. The probability or possibility of a 
 lawsuit is of course no objection to the title where the purchaser 
 
 "Ante, 284. James v. Mayer, 41 La. Ann. 1100; 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 T. 
 Kopp, 1 N. Y. Supp. 261; 48 Hun, 532. 
 
 25 Simon v. Vendeveer, 155 N. Y. 377 ; 49 N. E. Rep. 1043. Post, 306. 
 
 M l Sugd. Vend. (8th Am. ed.) 586; Id. ch. 22. Butterfield v. Heath, 15 
 Beav. 408; Humphreys v. Moses, 2 W. Bl. 1019; Currie v. Nind, 1 Myl. & 
 Cr. 17. 
 
 "Birch v. Cooper, 136 Cal. 636; 69 Pac. Rep. 420. But see Hoock v. Bow- 
 man, 42 Neb. 87, and Kreibich v. Martz, 119 Mich. 343, where the contrary 
 appears to have been held. 
 
 * Williams v. Carter, 3 Dana (Ky.), 198.
 
 OF DOUBTFUL TITLES. 735 
 
 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. 2 ' 
 
 We have seen that if the purchaser enter into the contract know- 
 ing that the title is in litigation, he cannot make that fact a ground 
 for rescission. 30 A fortiori he cannot rescind where he has agreed 
 to postpone the execution of the contract until a suit involving 
 the title is determined. 31 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." 
 
 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 premisop, 
 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. 83 
 
 291. DEFEASIBLE ESTATES. CONTINGENCIES. A purchaser 
 who, under his contract, is entitled to demand a conveyance of an 
 
 "Murray v. Ellis, 112 Pa. St. 485; 3 All. Rep. 845. 
 "Ante, 85. 
 
 "Hale v. Cravener, 128 111. 408; 21 N. E. Rep. 534. Holmes v. Richards, 
 67 Ala. 577. 
 
 "Gray v. Hill, (Mich.) 63 N. W. Rep. 77. 
 "Leonard v. Woodruff, (Utah) 65 Pac. Rep. 199.
 
 736 MARKETABLE TITLE TO BEAL ESTATE. 
 
 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 ; 34 for example, a devise to a woman providing 
 that title should remain in her only so long as she should live 
 separate from her husband. 35 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. 36 
 
 "Van Schaick v. Lese, 66 N. Y. Supp. 64; 31 Misc. 610; Lamprey v. 
 Whitehead, 64 N. J. Eq. 408 ; 54 All. Rep. 803 ; Richards v. Knight, 64 N. J. 
 Eq. 196; 53 Atl. Rep. 452. See Mr. Austin Abbot's note to Moore v. Wil- 
 liams, 23 App. N. Cas. (N. Y.) 416. The liability of an estate to defeat br 
 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. The following 
 illustration of this principle is from the opinion of Chancellor WALWORTH 
 in Seaman v. Hicks, 8 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 improbable as to 
 render such determinable fee substantially the same as an absolute inde- 
 feasible estate of inheritance in fee simple. For it might be 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 con- 
 tinue 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, hut would 
 also procreate heirs to divest the estate determinable upon that event. But 
 certainly no lawyer could for a moment suppose that a vendee, who had con- 
 tracted for a good title, was boun'*. 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, 8 Paige (N. Y.), 655, 658, dictum. A title derived 
 through a sale in proceedings for a partition, is not rendered unmarketable 
 fcy the fact that persons not in esse at the time of the sale may come into 
 existence and be entitled to share in the property; as where lands are devised
 
 OF DOUBTFUL TITLES. 737 
 
 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 ihe con- 
 tingency. 37 
 
 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. 38 There are cases which apparently 
 
 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 come into partition. Wills v. Slade, 6 Ves. 498. Espe- 
 cially is this true under statutes which provide that those entitled to a 
 reversion, remainder or inheritance, shall be bound by a judgment in parti- 
 tion. Cheesman v. Thome, 1 Edw. Ch. (N. Y.) 629. 
 
 w Chew v. Tome, 93 Md. 244; 48 Atl. 701. 
 
 "1 Sugd. Vend. (8th Am. ed.) 41, 584; 2 id. 101; Atk. Marketable Title, 
 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. 585 ; Stewart v. Conyngham, 
 1 Ir. Ch. C. 534; Hyde v. Dallaway, 6 Jur. 11D. See, also, Emery v. Gro- 
 cock, 6 Madd. 54; Barmvall v. Harris, 1 Taunt. 430; Causton v. Macklew, 2 
 Sim. 242 ; Martin v. Cotter, 3 Jon. & La. T. 496 ; Maginnis v. Fallon, 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. McElroy, 160 N. Y. 156; 54 N. 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. Poulds, (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. 2G&; 2 
 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 thnt 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.) 2 
 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. 
 
 47
 
 738 MARKETABLE TITLE TO REAL ESTATE. 
 
 deny this proposition, 39 but in most of them it will be found that 
 the facts tending to establish the adverse possession for the re- 
 
 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 N. W. Rep. 406. Ballou v. Sherwood, 32 Neb. 666; 
 49 N. 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. 2%; 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 marketable. 
 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. Was- 
 son, 6 J. J. Marsh. (Ky.) 618, where the vendor had had thirty years' unin- 
 terrupted possession. Abrams v. Rhoner, 44 Hun (N. 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. Edwards v. Morris, 1 Ohio, 524, forty years. Vance 
 v. House, 5 B. Mon. (Ky.) 537, thirty years. An adverse, uninterrupted pos- 
 session for more than twenty years, without evidence that the case was within 
 any of the exceptions of the Statute of Limitations, makes the title market- 
 able. 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.) 565. Possession 
 for many years under a deed, accidentally destroyed, creates such a title as a 
 purchaser will be required to take. Wade v. Greenwood, 2 Rob. (Va.) 474; 
 40 Am. Dec. 759. Per curiam. " It has been objected that a purchaser 
 
 s 'Eyton v. Dicken, 4 Price Ex. 303. Tevis v. Richardson, 7 B. Mon. (Ky.) 
 654. Mott v. Mott, 68 N. Y. 246, semble; Hartley v. James, 50 N. Y. 38, 
 criticised in Ottinger v. Strasburger, 33 Hun (N. Y.), 466, 469. Chapman 
 v. Lee, 55 Ala. 616.
 
 OF DOUBTFUL TITLES. 739 
 
 quired length of time were considered by the court too doubtful 
 to support a decree against the 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 
 
 should not be required to take a title which has been made good by the stat- 
 ute. We can see no force in the objection. So that the title be good, it 
 matters not how it has been made so." Tomlinson v. Savage, 6 Ired. Eq. 
 (N. C.) 430, 435. In Bohm v. Fay, 17 Abb. N. Cas. (N. Y.) 175, there was 
 a missing deed in the chain of title, but there had been an adverse, uninter- 
 rupted 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. (N. Y.) 543; O'Connor 
 v. Huggins, 1 N. Y. Supp. 377. 
 
 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. Herndon, 3 Litt. (Ky.) 358; 14 Am. Dec. 68; Hightower r. Smith, 
 5 J. J. Marsh. (Ky.) 542. Shriver v. Shriver, 86 N. Y. 575; Schultze v. 
 Rose, 65 How. Pr. (N. Y.) 75. Freedman v. Oppenheim, 81 N. Y. Supp. 
 110; 80 App. Div. 487. Griffin v. Cunningham, 19 Grat. (Va.) 571. A trustee 
 cannot acquire title to the trust subject under the Statute of Limitations, 
 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 statu- 
 tory period under a deed which is insufficiently acknowledged and recorded, 
 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 compelled to take 
 a title by adverse possession in a case free from doubt, observed : " Of all 
 known titles to land beyond a mere naked possession, which are prima facie 
 good, there are, perhaps, none recognized by law more doubtful and uncertain 
 than those depending for their validity upon an adverse possession 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 unmarket- 
 able : 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. 300. 
 Whether a statute providing that a trust for the benefit of creditors ahull 
 be deemed discharged after the lapse of twenty-five years, operated retrospec- 
 tively. McCahill v. ITnn-ilton, 20 Hun (N. Y.), 388.
 
 740 MARKETABLE TITLE TO HEAL ESTATE. 
 
 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. 41 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 
 the purchaser if sued in ejectment, the title must be held to be 
 marketable. 42 
 
 In titles founded on the Statute of Limitations there must be 
 evidence 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 establish his title 
 by adverse possession if it should be attacked by a third person 
 in the future. 43 True, as has been seen, it is a rule that a pur- 
 chaser cannot be compelled to take a title which, if attacked in 
 the remote future, he can only sustain by the testimony of wit- 
 nesses, since these may, in the meanwhile, have become unavail- 
 able 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 
 
 *Thus, in Duvall v. Parker, 2 Duv. (Ky.) 182, it was held that the pur- 
 chaser must take a title dependent on thirty years' adverse possession, ther 
 being, according to the evidence in that case, not the remotest probability 
 that he would ever be disturbed by an adverse claimant. 
 
 a 2 Beach Mod. Eq. Jur. 608. " The only reason, if any, why a title by 
 adverse possession is not marketable would be because its validity is a ques- 
 tion of evidence rather than of law." Rawle Covt. (5th ed.) 56. Noyes 
 v. Johnson, 139 Mass. 436; 31 N. E. Rep. 767. McCabe v. Kenny, 52 Hun 
 (N. Y.), 514; 5 N. Y. Supp. 678. Boggs v. Bodkin, 32 W. Va. 566; 9 S. E. 
 Rep. 891. Heller v. Cohen, 154 N. Y. 299; 48 N. E. Rep. 527. McAllister T. 
 Harmon, 101 Va. 17; 42 S. E. Rep. 920. 
 
 "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. 
 
 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. 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, G8 X. Y. Supp. 137; 33 Misc. Rep. 44.
 
 OF DOUBTFUL TITLES. 741 
 
 is, as a general rule, to be established only by the testimony of 
 witnesses, 44 and not by documentary or record evidence, yet no 
 one for this reason every 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. 46 
 
 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. 46 It seems that if, by the express terms of the con- 
 tract, the purchaser is entitled to demand a " good title of record," 
 he cannot be compelled to accept a title dependent upon adverse 
 possession. 47 And it has been decided that adverse possession can 
 never ripen into a marketable title, unless held under some assur- 
 ance purporting to convey a fee simple, or other estate equal in 
 quantity to that w r hich the vendor undertakes to sell. 48 This de- 
 pends upon the familiar rule that the mere naked possession of a 
 
 ** 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, 309. 
 
 "Eberhardt v. Miller, 71 111. App. 215; Hollifield v. Landrum (Tex. Civ. 
 App.), 71 S. W. Rep. 979, citing the text. 
 
 "McLaren v. Irvin, 63 Ga. 275. Miller v. Cramer, 48 S. C. 282; 26 S. E. 
 Rep. 657. 
 
 "Page Y. Greely, 75 111. 400. Xoyes v. Johnson, 139 Mass. 436; 31 N. E. 
 Rep. 767. Cherry v. Davis, 59 Ga. 454, semble. Payne v. Markle, 8!> 111. 
 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. Mc- 
 Donald, 76 Cal. 180; 18 Pac. Rep. 262), and that, therefore, a title under the 
 statute is not sufficient. McCroskey v. Ladd, (Cal.) 28 Pac. Rep. 215; 
 Benson r. Shotwell, 87 Cal. 56; 25 Pac. Rep. 249. Gwin v. Calegnri*. 130 
 Cal. 384; 73 Pac. 8ol. Where the agreement was that the title should be 
 " satisfactory " to the purchaser. 
 
 48 Cunningham v. Sharp, 11 Humph. (Tenn.) IK). Chapman v. l>*e, 55 
 Ala, 616. Kneller v. Lang, 63 Hun (N. Y.), 48; affd., 137 N. Y. 589.
 
 742 MARKETABLE TITLE TO KEAL ESTATE. 
 
 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. 49 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. 50 
 
 If the vendor's title be perfected by lapse of time pending a suit 
 for rescission or specific performance, the purchaser must accept 
 it, 61 unless time was material to the purchaser or was of the 
 essence of the contract. 62 
 
 A title founded upon adverse possession will not be marketable 
 unless sufficient time has elapsed to bar the rights of any person 
 who was under disabilities, such as infancy or coverture, when 
 the cause of action accrued. 53 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. 54 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 
 
 Shriver v. Shriver, 86 N. Y. 575. 
 
 18 2 Sugd. Vend. (8th Am. ed.) 104; Wms. Real Prop. (Am. ed. 1886) 45i 
 (355). 
 
 "Wickliffe v. Lee, 6 B. Mon. (Ky.) 543. Peers v. Barnett, 12 Grat. (Va.) 
 410. 
 
 51 Post, ch. 32. Costs will be decreed against the vendor in such case. Peers 
 v. Barnett, 12 Gratt. (Va.) 410. 
 
 "Brown v. Cannon, 5 Gil. (111.) 174. Tevis v. Richardson, 7 B. Mon. (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. Baumeister v. Silver, 98 Md. 418; 56 
 Atl. 825. Wilhelm v. Federgreen, 38 N. Y. Supp. 8; 2 App. Div. 483. Fuhr 
 v. Cronin, 81 N. Y. Supp. 536; 82 App. Div. 210. 
 
 "Pratt v. Eby, 67 Pa. St. 396; Shober v. Button, 6 Phila. (Pa.) 186. Ot- 
 tinger v. Strasburger, 33 Hun (N. Y.), 466; N. Y. Steam Co. v. Stern, 4i 
 Hun (N. Y.), 206.
 
 OF DOUBTFUL TITLES. 743 
 
 shall be shown ; but if that be not within the vendor's power the 
 title will not be held bad upon mere suspicions. 65 
 
 If the vendor set up title under the Statute of Limitations, the 
 burden will be upon him to show that the title is good. 6 * 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 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. 67 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. 68 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. 69 
 
 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. 60 If this practice be founded upon sound principles, no 
 
 "1 Sugd. Vend. (8th Am. ed.) 552. Seymour v. Delancey, Hopk. Ch. 
 (N. Y.) 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, 63 Hun (N. Y.), 48; 17 N. 
 Y. Supp. 443. Wilhelm v. Federgreen, 38 N. Y. Supp. 8 ; 2 App. Div. 483. 
 
 "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. (N. 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. 
 
 "Phillips v. Day, 82 Cal. 24; 22 Pac. Rep. 976, citing Shriver v. Shriver, 
 SQ N. Y. 575. 
 
 "Duvall v. Parker, 2 Duv. (Ky.) 182. Ante, p. 723.
 
 744 MARKETABLE TITLE TO REAL ESTATE. 
 
 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 
 held no valid objection to the title, the right of the assignee to 
 enforce the contract having become barred by lapse of time.* 1 
 
 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. 62 
 
 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. 63 There 
 
 Holmes v. Richards, 67 Ala. 577. 
 
 "Kahn v. Mount, 61 N. Y. Supp. 358; 46 App. Div. 84. 
 
 43 English cases cited, ante, p. 737, note 1. 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.) 
 96; 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. McAtee, 7 B. Mon. (Ky.) 
 279. In the same case it was held that an agent's authority to convey would 
 be presumed after fifty years. A grant from the Commonwealth will be
 
 OF DOUBTFUL TITLES. 745 
 
 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. 64 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 
 
 presumed after forty years' adverse possession. Henderson v. Perkins, 94 
 Ky. 207; Jarboe v. McAtee, 7 B. Mon. (Ky.) 279. 3 Starkie Ev. 1221; 1 
 Greenl. Ev. 50. In Abrams v. Rhoner, 44 Hun (N. Y.), 507, it appeared that 
 B., through whom the vendor claimed, under a deed executed in 179", had 
 made a prior conveyance of the same premises, in 1771, to 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 thorn to any person had 
 ever been found. Held, that the title of the vendor was marketable, it being 
 conclusively presumed that the grantees in the deed of 1771 had reconveyed 
 to B. before he conveyed in 1797, or that the conveyance of 1771 had, for some 
 reason, never taken effect. 
 
 "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 lease. 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 his 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.
 
 746 MARKETABLE TITLE TO EEAL ESTATE. 
 
 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. 65 And it is apprehended that the circum- 
 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 presumption of the existence of any fact, a title 
 
 w PRESUMPTIONS 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 N. E. Rep. 195. 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. Arndt- 
 stein, 51 N. Y. Supp. 597; 29 App. Div. 274. Fourteen years, Fowler v. 
 Manheimer, 75 N. Y. 17; 70 App. Div. 56. Thirty-five years, Chew v. Tome, 
 93 Md. 244; 48 Atl. 701. Whetlfer certain persons were the only heirs of a 
 decedent. Walton v. Meeks, 41 Hun (N. 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. Mon. (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 N. E. Rep. 387; McComb v. Wright, 5 Johns. Ch. (N. Y.) 263. 
 Demarest v. Friedman, 70 N. Y. Supp. 816; 61 App. Div. 576. Day v. Kings- 
 land, 57 N. J. Eq. 134; 41 Atl. 99. See, also, Burton v. Perry, (111.) 34 N. 
 E. Rep. 60. Whether the facts in a certain case were sufficient to sustain 
 a title by escheat for want of heirs. In re Trustees N. Y. P. E. Pub. School, 
 31 N. Y. 574, 587. In Meyer v. Madreperla, (N. J. L.), 53 Atl. 477, the 
 purchaser 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 New Jersey statute providing that a person absenting himself and 
 not heard from for seven years, must be presumed to be dead, that the objec- 
 tion to the title was untenable. The statute was held to raise a conclusive 
 presumption 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 N. Y. 610, 26 N. 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 pub- 
 lication of notice against the absentee. The evidence was thought sufficient 
 to justify both presumptions.
 
 OF DOUBTFUL TITLES. 747 
 
 dependent upon that fact will be deemed marketable." Thus, 
 under the rule that ancient deeds coming from the proper custody 
 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 or 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. 67 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. TTTLE AS AFECTED 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. cs 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 
 
 Torsyth v. Leslie, 77 N. Y. Supp. 826; 74 App. Div. 517. In Lyman v. 
 Gedney, 114 111. 388; 20 N. E. Rep. 282, the grantors, in a conveyance of 
 property which belonged to a partnership, were, after the lapse of forty years, 
 presumed to have been the persons composing the firm, the conveyanc itself 
 being silent upon that point. 
 
 " Ante, 289. Braun v. Vollmer, 85 N. Y. Supp. 319. 
 
 * 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. McMillen, 3 A. K. Marsh. (Ky.) 565. Whether 
 a grantee of lands took with notice of certain liens upon the premises: 
 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.
 
 748 MABKETABLE TITLE TO JBEAL ESTATE. 
 
 to his vendor being proved. 69 But the mere liability of a deed 
 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. 70 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. 70 * 
 
 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. 71 
 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 pais affecting 
 
 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 N. 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. 
 
 '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. 
 
 "a Ante, 285. Prop. VI. 
 
 71 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, 19 Grat. (Va.) 
 571. McAllister v. Harmon, 101 Va. 17; 42 S. 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 is doubtful, leaving to the vendor the burden of remov- 
 ing the doubt.
 
 OF DOUBTFUL TITLES. 749 
 
 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 
 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." 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 
 floes 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 presumption 
 is that he satisfied himself as to the sufficiency of the title before 
 entering into the contract. 73 
 
 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 con- 
 tract; and it is error to admit the testimony of attorneys and 
 examiners of title upon that point. 74 
 
 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 ^ r endo^9 and Pur- 
 chasers. 76 Many of these are comparatively of little value to tho 
 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 
 
 "Stevenson v. Polk, 71 Iowa, 278; 32 N. W. Rep. 340. Phillips v. Day. 
 82 Cal. 24; 22 Pac. Rep. 976. Bank v. Loujrl'ran. 122 N T . C. 668; 30 S. E. 
 Rep. 17. 
 
 73 Baxter v. Aubrey, 41 Mich. 16; 1 N. W. Rop. 897. citing Dwight v. Cutter, 
 3 Mich. 566; 64 Am. Dec. 105; Allen v. Atkinson, 21 Mich. 361. 
 
 74 Ante, 283. Evans v. Gerry, 174 111. 595; 51 N. E. Rep. 615; Moaer T. 
 Cochrane, 107 N. Y. 35; 13 N. E. Rep. 442. 
 
 "1 Sugd. Vend. (8th Am. ed.) 583 (389).
 
 750 MARKETABLE TITLE TO REAL ESTATE, 
 
 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 three 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 like 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- 
 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 de- 
 pends, 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
 
 OF DOUBTFUL TITLES. 751 
 
 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. Er- 
 rors, 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 restitu- 
 tion 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 
 proceeding, 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. 76 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 un- 
 marketable, 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 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 irreg- 
 ularity 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 
 
 "Ante, 4.
 
 <OJ MARKETABLE TITLE TO KEAL ESTATE. 
 
 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. 77 As a general rule no 
 such objection will be permitted after the sale has been con- 
 firmed. 78 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 correc- 
 tion, will be no ground upon which to release him from his con- 
 tract. 79 Nor will the purchaser be relieved if he made his bid with 
 knowledge that the title was open to doubt, even though his objec- 
 tion be made before confirmation of the sale. 80 
 
 And it has been held that a purchaser at a sale in partition can- 
 not 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* 1 If the proceedings in a suit in which a judicial sale 
 
 "Wilson v. White, 109 N. Y. 59; 15 N. E. Rep. 749; Shriver T. Shriyer, 
 86 N. Y. 575; Jordan v. Poillon, 77 N. Y. 518; Williamson v. Field, 2 Sandf. 
 Cli. (N. 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 T. Cox, 18 
 Dist. Col. 1. 
 
 "Ante, 45. 
 
 "Dalzell v. Crawford, 1 Pars. Sel. Cas. (Pa.) 37. Moot v. Business Men'i 
 Asso., 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 the 
 title, does not conclude the purchaser as to questions of title not submitted to 
 the court. Williamson v. Field, 2 Sandf. Ch. (N. Y.) 533. 
 
 "Ante, 45. Stewart v. Devries, (Md.) 32 Atl. Rep. 285. Binford's Ap- 
 peal, 164 Pa. St. 435; 30 Atl. Rep. 298. 
 
 11 Sebring v. Mersereau, 9 Cow. (N. Y. ) 344, the court saying: "Upon a 
 bill 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 
 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 
 5 ncumb ranees. Each takes the share allotted to him, and subject to such 
 liens as 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
 
 OF DOUBTFUL TITLES. 753 
 
 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 unseasonably 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 ho can insist upon the pur- 
 chaser's completing the purchase. 82 
 
 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, p. 77. 
 
 "Crouter v. Crouter, 133 N. 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- 
 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 f arias: 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. Hustace, 51 Hun (N. Y.), 457; 3 N. Y. Supp. 850. Whether a married 
 
 48
 
 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. 83 
 
 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 suit 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 ser- 
 vice 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 suit 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, 39 N. Y. Supp. 737 ; 6 App. Div. 
 38. Whether a probate court in Connecticut had power to sell real property 
 for payinent 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. 23*2. Wliether a foreclosure sale might, under the 
 laws of Michigan be made more than ten years after a decree directing the 
 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 
 
 Adami v. Backer, 60 N. Y. Supp. 683 ; 29 Misc. 93.
 
 OF DOUBTFUL TITLES. 755 
 
 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 pur- 
 pose, or by special act of the legislature, and the statutes in most 
 
 convey dotal property free of the rights of the husband: Carter v. Morris 
 B. & L. Asso., 108 La. 143; 32 So. Rep. 473. 
 
 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. Whether the failure of the 
 court to appoint an attorney to represent absent heirs in a suit for partition 
 invalidated the title of a purchaser at a sale in such suit: Mather v. Lehman, 
 (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 mort- 
 gaged 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 Misc. 404. Wheth 
 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. Doug- 
 las, 23 Ky. Law R. 298; 62 S. W. Rep. 860. The fact that an order tor 
 publication of summons in a suit for partition was signed only with t 
 initials of the judge, is no sufficient objection to the title. Volz v. Steiner, 
 73 N. Y. Supp. 1006; 67 App. Div. 504. Verification of a petition for ap- 
 pointment 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 i 
 the petition appear in a subsequent affidavit in the cause. Baumeister A 
 Demuth, 82 N. Y. Supp. 831 ; 84 App. Div. 394. The possibility that a d 
 cree, under which the vendor holds, may be opened in behalf of non-resider 
 defendants, is no objection to the vendor's title if the proceedings in t 
 cause appear to have been regular. Hays v. Tribble, 3 T. B. Mon. (Ky.) 
 As to what irregularities in proceedings before a surrogate fnr the 9 
 decedent's real estate for the payment of his debts, will not render the t 
 doubtful, see Regney v. Coles, 6 Bos. (N. Y.) 479. In Stevenson v 
 71 Iowa, 278; 32 N. W. Rep. 340, the possibility that defendant* 
 process ha'd been served by publication, would appear and take advantage of 
 an irregularity in the proceedings, was held insufficient to make the 1 
 unmarketable.
 
 756 MARKETABLE TITLE TO REAL ESTATE. 
 
 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 alle- 
 gations of the necessity therefor be sustained by testimony 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 ftrder 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 rep- 
 resentative of their interests before the court. 81 * 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 judg- 
 ment or decree in proceedings for the sale of lands in which they 
 are interested.** 
 
 It has been held, in Xew 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. 85 In a 
 case in Alabama the purchaser denied the power of the legislature 
 to authorize, by private act, the sale of infants' 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 * 
 
 % Holmes v. Wood, (Pa.) 32 AtL Rep. 54- One of the interests sold in thi* 
 ease was liable to open to admit after-born children, and there being no 
 representative of such prospective interests before the court, the title of * 
 purchaser at a sale in the cause was held doubtful. 
 
 James v. Meyer, 41 La. Ann, 1100; 7 So. Rep. 618. 
 
 " Ebling v. Dwyer, 149 X. Y. 460; 44 N. E. 155. 
 
 "Munford v. Pearee, 70 Ala. 452. 
 
 SALE or ESTAXT'S ESTATE. ETC. Titles held 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 (X. Y.),457; 3 X. Y. Supp. 
 850. Whether want of personal service upon certain infant defendants in parti- 
 tion invalidated a judgment therein rendered: Swain v. Fidelity Ins. Co., 54 Pa. 
 St. 455. Whether in a ease in which there was no jurisdiction for partition 
 except by consent, jurisdiction could be given by consent where the rights
 
 OF DOUBTFUL TITLES. 757 
 
 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 
 to the proceeding in which such judgment or decree was pro- 
 of infants were involved: Scheu v. Lehning, 31 Hun (X. Y.), 183. Whether 
 certain irregularities in proceedings for the sale of an infant's estate vitiated 
 the title of the purchaser: Gill v. Wells, 59 Md. 492. Whether notice of a tax 
 sale served on infant owners in person without the appointment of a guardian 
 ad litem was sufficient to conclude them: Levy v. Newman, 50 Hun (N. Y.), 
 438; 3 N. 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 nol providing for their protection: Monarque v. Monarque, 
 80 N. 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. 07. 
 Whether an appearance by an infant in partition by next friend instead of a 
 guardian ad litem, was irregular and invalid: Swain v. Fidelity Ins. Co., 
 54 Pa. St. 455. Whether the appointment of a guardian ad Utcm for an 
 infant defendant in a certain case was valid: Uhl v. Laughran, 4 N. Y. 
 Supp. 827 ; 22 N. 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 (N. 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 : Wienstock v. 
 Levison, 26 Abb. N. Cas. (N. Y.) 244; 14 N. 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 tune, 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. N. Cas. (N. 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. (N. 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; otherwise 
 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, tin- 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. 
 
 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. Klnjr. 28 How. 
 Pr. (N. Y.) 408. Whether the appointment of a guardian ad litrm in a suit 
 is valid when it does not appear by affidavit that the infant defendants have
 
 758 MARKETABLE TITLE TO EEAL ESTATE. 
 
 nounced. 87 Hence a title so derived, being always open to col- 
 lateral attack, is not only doubtful, but absolutely bad. But ques- 
 tions 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 question 
 whether their presence was properly dispensed with, admits of 
 reasonable doubt, either upon the law or the facts, a title depend- 
 ing upon such question becomes, in a technical sense, doubtful or 
 unmarketable, and such as a purchaser cannot be compelled to 
 take. 88 Illustrations will be found in the notes below. The mere 
 non- joinder of persons who would have been proper parties to the 
 
 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 
 sale 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 personality, 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 w T ere 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. 
 
 "Ante, 287. 
 
 ""Dworsky v. Arndtstein, 51 N. Y. Supp. 597; 29 App. Div. 274.
 
 OF DOUBTFUL TITLES. 759 
 
 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 decedent as defend- 
 ants 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. 89 The bare possibility that there 
 may have been persons who, if they existed, would have been 
 necessary parties to the suit, presents no objection 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 have been other heirs than 
 those stated did not make the title doubtful, there being nothing 
 to show that such other heirs had probably existed. 90 Where the 
 
 M Reece v. Haymaker (Pa.), 30 Atl. Rep. 404. 
 
 "Greenblatt v. Hermann, 144 N. Y. 13;' 38 N. E. Rep. 906. 
 
 WANT OF PARTIES Title held not marketable. Whether a sale of lands 
 for payment of a decedent's debts was valid without notice of the proceed- 
 ing to the heijs: Littlefield v. Tinsley, 26 Tex. 353. 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 curtesy of an undivided interest 
 in mortgaged premises, should have been made a party to a proceeding to 
 foreclose the mortgage : Hecker v. Sexton, 6 N. Y. State Rep. 680. Whether 
 certain children having an interest in remainder in mortgaged premises 
 should have be"en made parties to a suit to foreclose the mortgage: Lockman 
 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 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. 3f>2. A title resting on a sale under execution 
 against heirs upon a judgment founded on a set. 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
 
 760 MARKETABLE TITLE TO REAL ESTATE. 
 
 title depended on a like proceeding, and the 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 pur- 
 chaser to show that some necessary party was omitted whereby 
 
 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 N. 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. 
 
 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 
 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 alloted 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 ot 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-
 
 OF DOUBTFUL TITLES. 761 
 
 the title was rendered unmarketable. 91 The bare possibility 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. 92 
 
 299-a. Irregularities in foreclosure sales. A great number 
 of titles depend upon sales under deeds 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 
 intervention of the courts, after advertisement and the ob- 
 servance of other 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 adver- 
 tisement 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 depend- 
 ent upon such sale will be deemed unmarketable, and not such as 
 a purchaser may be required to take. 93 
 
 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 
 
 and the same corporation, so that one of them was properly not made a partj 
 defendant to a proceeding for the sale of the property devised: Sisters of 
 Mercy v. Benzinger, 95 Md. 684; 53 Atl. 548. The fact that an assignee for 
 the benefit of creditors of property 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 year's, no objection to the title under Laws of New 
 York, 1875, providing that deeds for the benefit of creditors shall be deemed 
 discharged aftery twenty-five years from their date. Kip v. Hirsh, 103 N. Y. 
 565; 9 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- 
 quires by subrogation all the rights of the prior incumbrancer. De Saussure 
 v. Bollman, 7 Rich. (N. S.) (S. C.) 329. 
 
 "Day v. Kingsland, 57 N. J. Eq. 134; 41 Atl. Rep. 99. 
 
 "Wolverton v. Stevenson, 52 La. Ann. 1147; 27 So. Rep. 674. 
 
 "Martin v. Hamlin, 176 Mass. 180; 57 N. 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.
 
 762 MARKETABLE TITLE TO REAL ESTATE. 
 
 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 sug- 
 gested by clerical mistakes and inadvertent omissions on the part 
 of those concerned in the execution and authentication of convey- 
 ances, such, for example, as the sufficiency of an informal and ir- 
 regular 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 em- 
 ployed 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 
 bo forced upon the purchaser. The want of regular registration 
 of deeds under which the vendor deduces title, there being no 
 other proof of execution, is an insuperable objection to specific per- 
 formance by the purchaser. 94 
 
 M Hyne v. Campbell, 6 T. B. Mon. (Ky.) 286. George v. Conhaim, 38 Minn. 
 338; 37 N. W. Rep. 391. The mere non-record of a deed executed by a referee 
 in forclosure 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 N. Y. Supp. 797. 
 
 EBBORS AND IRREGULARITIES IN THE DRAFTING, EXECUTION AND ACKNOWLEDG- 
 MENT OF INSTRUMENTS Titles held not marketable. Whether a certain con- 
 veyance had been executed as an escrow or not: Sloper v. Fish, 2 Ves. & 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: Fitzpatrick 
 v. Sweeny, 56 Hun (N. Y.), 159; 121 N. Y. 707. Where 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. 
 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, 
 OS Pa. St. 258. Whether a certificate of acknowledgment which failed to 
 state that the grantors were known to the certifying officer to be such, etc., 
 was sufficient : Fryer v. Rockefeller, 63 N. Y. 268 ; Paolillo v. Faber, 67 N. Y. 
 Supp. 638; 56 App. Div. 241; Freedman v. Oppenheim, 81 N. Y. Supp. 110; 
 SO App. Div. 487. Where certificate of acknowledgment failed to show that 
 the certifying officer was personally acquainted with the grantor: Mullina v.
 
 OF DOUBTFUL TITLES. 763 
 
 The general rule is that in so far as the title depends upon 
 the execution, attestation, acknowledgment, and effect of convey- 
 
 Aiken, 2 Heisk, (Tenn.) 535. When 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. Oppenheimer, 81 N. Y. Supp. 110; 80 App. 
 Div. 487. Where the wife's acknowledgment of a deed under which the vendor 
 claimed, was wanting: McCann v. Edwards, 6 B. Mon. (Ky.) 208. Where 
 the certificate did not show prior examination of the wife : Hepburn v. Auld, 
 5 Cranch (U. S.) , 267, 275. Whether parol evidence of the certifying officer 
 could be received to show that the wife's acknowledgment was duly taken: 
 Tomlin v. McChord, 5 J. J. Marsh. (Ky.) 135. 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 she had willingly signed, sealed 
 and delivered the same: Black v. Aman, 6 Mackey (D. C.), 131. A title 
 dependent on an acknowledgment of a married woman, taken before a party 
 to the deed acknowledged, is not marketable. Withers v. Baird, 7 Watts 
 (Pa.), 227; 32 Am. Dec. 754. And a title derived through a conveyance 
 defectively acknowledged by a married woman, is unmarketable. Beardslee v. 
 Underbill, 37 N. J. L. 309. Where a deed was recorded 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; (33 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 unmarket- 
 able, 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 husband 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 Hop- 
 kins was in fact from Hepburn, but refused to submit his proofs for examina- 
 tion of the purchaser, it was held that the latter might reject the title and re- 
 cover his deposit, though the vendor might be able to show that the title was 
 good. Benson v. Shotwell, 87 Cal. 40-; 25 Pac. Rep. 249. So, also, where the rec- 
 ord 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 aame 
 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
 
 764 MARKETABLE TITLE TO REAL ESTATE. 
 
 ances, as they appear upon the record, they must be free from 
 reasonable doubt upon their faces, and must have been properly 
 
 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. 
 
 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. 
 56. 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. In the de- 
 scriptive clause of a deed, a course was given as " southeasterly," but the 
 deed itself furnished evidence that " southwesterly " was intended, and it 
 was held that the misdescription of the course did not render the title un- 
 marketable. Brookman v. Kurzman, 94 N. Y. 272; Clark v. Hutzler, 96 
 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 testimonium 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 is not affected by the failure of the notary 
 to recognize his official seal in the testimonium clause of his certificate of 
 acknowledgment. Mitchener 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, 20 Ohio St. 182. Whether the language, 
 " Personally came A. B., the executor of the annexed deed, and acknowledged 
 it," was equivalent to "acknowledged the execution of- the annexed deed:" 
 Davar v. Caldwell, 27 Ind. 478. A purchaser cannot reject the title on the 
 ground that the probate of a deed unfler which the vendor claims does not
 
 OF DOUBTFUL TITLES. 765 
 
 and legally recorded, or be such as are legally entitled to be 
 recorded. 96 
 
 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 in 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 will 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 
 subsequent to the acknowledgment, and even after registration. 9 * 
 
 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. Prewitt 
 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. 
 
 "Han-ass v. Edwards, 94 Wis. 459, 69 N. W. Rep. 69. 
 
 Dresel v. Jordan, 104 Mass. 407. 
 
 REGISTRATION OF DEEDS, ETC. Titles held doubtful. Whether an attach- 
 ment levied upon land took priority over an unrecorded conveyance of the 
 land: Mullins v. Aiken, 2 Heisk. (Tenn.) 535. Want of regular registration 
 of deeds by which the vendor deduces title, there being no other proof of
 
 766 MARKETABLE TITLE TO EEAL ESTATE. 
 
 301. Construction of deeds, wills, etc. Perhaps the most dif- 
 ficult 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 
 subtleties, 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 inartifi- 
 cially and unskillfully drawn, is often a question upon which dif- 
 ferent judges entertain different opinions. And oftentimes, with 
 the aid of parol evidence to explain patent ambiguities in a will, 
 it is impossible to determine, beyond a reasonable doubt, to what 
 persons or things the testator refers. 97 
 
 their existence, is a fatal objection to the title. Bartlett v. Blanton. 4 J. J. 
 Marsh. (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 perfected and marketable until such record is made. Wilson v. 
 Tappan, 6 Ohio, 172. A purchaser will not be compelled to take a title under 
 a deed which is not recorded nor shown to have been executed as the law 
 requires. Hyne v. Campbell, 6 T. B. Hon. (Ky.) 286. Harrass v. Edwards, 
 94 Wis. 459; 69 N. W. Rep. 69. 
 
 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 doubt- 
 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 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. 
 
 " 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 N. Y. Supp. 429; 58 Hun (N. Y.), 588. Whether in a 
 certain case the purchaser was required to see to the application of th
 
 OF DOUBTFUL TITLES. 767 
 
 302. Competency of parties to deeds. The competency, 
 power or authority of those who undertake to execute conveyances 
 of lands, constitutes a most fruitful source of objections to title. 
 
 purchase money: Garnett v. Ma con, 6 Call (Va.), 308. St. Mary's Church 
 v. Stockton, 8 N. 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, 6 Rich (N. 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 use: 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. \Vhether 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. (N. 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 N. J. Eq. 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 N. Y. Supp. 832. Certain doubts arising upon the true construction of a 
 will, held sufficient to make the title doubtful : Sims v. McElroy, 39 X. Y. 
 St. Rep. 324; 14 N. Y. Supp. 241. Whether a certain assignment of a mort- 
 gage to the mortgagor as " trustee " amounted to an absolute release of the 
 mortgage: Sturtevant v. Jaques, 14 Allen (Mass.), 523. Whether certain 
 posthumous children of a testator were entitled to take under his will : 
 Kilpatrick v. Barren, 125 N. Y. 751; 26 N. E. Rep. 925. Whether a certain 
 remainder created by will was vested or contingent: Nelson v. Russell, 61 
 Hun (N. Y.), 528; 16 N. Y. Supp. 395. 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 was held to be not such as 
 a purchaser could be compelled to take.' Smith v. Kimball, (111.) 38 N. E. 
 Rep. 1029. Whether a certain trust authorized a sale of the trust subject after 
 the beneficiaries reached the age of twenty-one: Paget v. Melchior, 58 X. 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
 
 768 MARKETABLE TITLE TO BEAL ESTATE. 
 
 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 ex- 
 ceeded his authority. A title dependent upon a conveyance exe- 
 cuted by one admitted to be an infant or a person non compos 
 mentis is absolutely bad, for such a deed a void. But if the fact 
 of infancy or the want of contractual capacity be in dispute, 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 Ken- 
 tucky, the court held that a title should not be declared doubtful 
 
 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. 
 
 Titles 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 Y. 
 Blauvelt, 23 N. J. Eq. 483. Whether a certain limitation over upon the 
 death of the first taker without issue was void for remoteness: Miller T. 
 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. OPa.) 268; 11 Am. Dec. 610. Whether a legacy in a certain case 
 was an equitable charge on lands embraced in a residuary devise of th 
 estate: Wiltsie 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 S. C. 335 ; 47 S. E. Rep. 375.
 
 OF DOUBTFUL TITLES. 769 
 
 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 pro- 
 ceedings already instituted for that purpose. 98 It is not easy to 
 reconcile this decision with the rule that a purchaser cannot be 
 compelled to take a title which will probably expose him to litiga- 
 tion. The same observation will apply to a decision that the in- 
 capacity of a corporation to take and hold real estate, does not affect 
 the validity of a title derived through the corporation, 69 unless 
 
 Hunt v. Weir, 4 Dana (Ky.), 347. 
 
 "Mo. Valley Land Co. v. Buslmell, 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 \vas 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, 105 N. 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. 4 
 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 atl 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. 53. 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. 500. 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 
 N. 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. 
 
 49
 
 770 MARKETABLE TITLE TO REAL ESTATE. 
 
 it was thereby intended to decide that the State could not insist 
 upon a forfeiture of the estate in the hands of the grantee of the 
 corporation. 
 
 Goodfellow, 40 Minn. 312; 41 N. W. Rep. 1056. Whether a will 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. 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 prop- 
 erty 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 and their successors in office forever," 
 and there was no conveyance from the trustees to the church : M. E. Church 
 v. Roberson, (N. J. Eq.) 58 Atl. Rep. 1056. Whether, upon a true construc- 
 tion of testator's will, his executors were authorized to sell and convey his 
 realty before his son reached the age of twenty-one. Clouse's App., 192 Pa. 
 St. 108; 43 Atl. Rep. 413. Whether a married woman was competent, under the 
 laws of Missouri, to execute a conveyance 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 
 y. Dixon, 46 N. Y. Supp. 280; 19 App. Div. 420. A power of attorney de- 
 fectively 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 acknowl- 
 edgment; 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 powers of a religious corporation to convey land, and 
 the purchase money was to be reinvested in other lands in trust for the cor- 
 poration, the purchaser was relieved. St. Mary's Church v. Stockton, 8 N. J. 
 Eq. 520. A sheriff's 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 perform- 
 ance, 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 charitable societies, with power to the executor 
 to sell the real estate and divide the proceeds among the societies. Under the 
 laws of New York the devise was invalid, except as to one-half of the tes- 
 tator's estate. After the precedent estate determined, the executor sold the 
 real estate under the power, but the title was held unmarketable : ( 1 ) Upon
 
 OF DOUBTFUL TITLES. 771 
 
 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 
 
 a question of fact, namely, the ability of the heirs to show that there was per- 
 sonal 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 dependent on a conveyance of a homestead estate 
 to which the grantor's wife was not a party. Castleberg v. Maynard, 95 X. 
 C. 281. 
 
 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 New 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 ben 
 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 describe! 
 therein as " Mrs." when she did not sign as " Mrs." did not not render the title 
 unmarketable, there being testimony that she was unmarried. Kcvol v. 
 Stroudback, 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
 
 772 MARKETABLE TITLE TO BEAL ESTATE. 
 
 unmarketable. 1 Nor, it is apprehended, would the possibility 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. 2 
 
 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 
 
 the devise to the daughter made absolute and unqualified, the power of the 
 (laughter to convey cannot be disputed, and a purchaser must take the title. 
 Senning 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 authoribed personal representatives to specifi- 
 cally 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 unremarkable 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 pro- 
 bate 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 pro- 
 bate will probably be revoked. Nor 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 ren- 
 der 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. 
 
 'Moser v. Cochrane, 107 N. Y. 35; 13 N. E. Rep. 442; Schermerhorn v. 
 Niblo, 2 Bosw. (N. Y.) 161; Disbrow v. Folger, 5 Abb. Pr. (N. Y.) 53; Mc- 
 Dermott v. MeDermott, 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. In Disbrow v. Folger, 5 Abb. Pr. 
 (X. Y. ) 53, the title was referred to a master for the purpose of ascertaining 
 whether any such debts existed.
 
 OF DOUBTFUL TITLES. 773 
 
 adjudicated by a competent tribunal. 3 And in a case in which there 
 had been no administration of the estate of a decedent through 
 whom the title had 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. 4 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. 5 
 
 303-a. 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, 6 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 
 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. 7 
 
 'Chew v. Tome, 93 Md. 244; 48 Atl. Rep. 701. 
 
 * Chauncey v. Leominster, 172 Mass. 340; 52 N. E. Rep. 719. 
 . ' 1 Sugd. Vend. (8th Am.) ed.) 572. Dickinson v. Dickinson, 3 Bro. C. C. 1. 
 See, also, Platt v. Newman, 71 Mich. 112; 38 N. \V. Rep. 720. 
 
 Coombs v. O'Neal, 1 MacArth. (D. C.) 405. 
 
 '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. In Matney v. Ratliff, 
 96 Va. 231, 31 S. E. Rep. 512, it appeared that a grantee of the Common- 
 wealth 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 objection 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 Fltzpatrick v. Leake. 47 
 La. 1643; 18 So. Rep. 649, it was held that the purchaser could not l>e com- 
 pelled to take the title unless the tax deed was produced and its prima facie 
 effect was unimpaired by tfstimony. ^liere the vendor hold under a tnx sale, 
 with a right in minors and others not sul juris to redeem from the sale 
 within a year after removal of disabilities, it was held that an agreement
 
 774 MARKETABLE TITLE TO BEAL ESTATE. 
 
 304. INCUMBBANCBS. As a general rule an incumbranee 
 upon the premises, so long as it may be removed by application of 
 the purchase money, or where the vendor being solvent, offers 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. 8 But if both parties enter into the 
 contract w r ith the express understanding that the premises are free 
 and clear of incumbrances, it may be doubted whether the pur- 
 chaser would be compelled to take subject to an incumbranee, even 
 though it could be discharged out of deferred payments of the pur- 
 chase money. 9 If, however, the purchase money be presently due 
 and the vendor can produce some one who is competent to receive 
 payment of the incumbranee and execute a release or satisfaction 
 piece, no reason is perceived why the purchaser should not be 
 compelled to complete the contract. 10 The cases in which the exist- 
 ence of an incumbranee upon the premises will justify the pur- 
 chaser in refusing to go on with the purchase, until the objection 
 be removed, may be thus classified: (1) Those in which the exist- 
 ence of the incumbranee is admitted, or free from doubt; and (2) 
 those in which the fact or existence of the incumbranee is a matter 
 of doubt or dispute. 
 
 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. 
 
 8 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. Cox v. Coventon, 31 Beav. 378; Wood 
 v. Majoribanks, 3 De G. & J. 329'; 7 H. L. Cas. 806. Tiernan v. Roland, 15 
 Pa. St. 441. Pangborn v. Miles, 10 Abb. N. Cas. (N. Y.) 42. Brewer v. 
 Herbert, 30 Md. 301; 96 Am. Dec. 582, a case in which the decree provided 
 that the incumbranee, a judgment against the vendor, be paid out of the pur- 
 chase money. The vendor had also appealed from the judgment and executed 
 an appeal bond covering the judgment and costs. 
 
 Karker v. Haverly, 50 Barb. (N. Y.) 79; Chambers v. Tulane, 9 N. J. Eq. 
 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 incumbranee might pre- 
 vent an advantageous resale by the purchaser. Besides if the purchaser, for 
 reasons satisfactory to himself, chooses to insist upon a provision that the 
 premises shall be free of incumbrances, who shall gainsay him, when he insists 
 upon a literal performance of the agreement? 
 
 10 Webster v. Kings Co. Trust Co., 80 Hun (N. Y.), 420; 30 N. Y. Supp. 
 357.
 
 OF DOUBTFUL TITLES. 775 
 
 305. (i) Admitted incumbrances. We have seen that an ad- 
 mitted 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, in- 
 convenience or expense. 11 The vendor has a right to perfect the 
 title by removing incumbrances. 12 
 
 Strictly speaking, an incumbrance is not a defect in the title to- 
 an estate, 13 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. 14 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 without 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 t 
 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." 
 Of this kind are easements, servitudes, rights of way, 1 ' reserva- 
 
 11 Ante, 245. 
 
 11 Post, ch. 32; ante, ch. 19. 
 
 " Heimburg v. Ismay, 35 N. Y. Super. Ct. 35. Stephen's Appeal, 87 Pa. St. 
 207; Tiernan v. Roland, 3 Harris (Pa.), 441. 
 
 14 Prescott v. Trueman, 6 Mass. 627 ; 3 Am. Dec. 249. 
 
 18 1 Sugd. Vend. (8th Am. ed.) 473 (312). 
 
 18 Shackelton v. Sutcliff, 1 De G. A Sm. 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 Gratt. (Va.) 873. Hart v. Handlin, 43 Mo. 
 171, where, however, the purchaser was deemed to have waived the objection. 
 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
 
 776 MARKETABLE TITLE TO BEAL ESTATE. 
 
 tions of minerals, 17 building restrictions, 18 restrictions as to 
 
 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 
 incumbrance, and entitles the purchaser to rescind. Kearney v. Hogan, 154 
 Pa. St. 112; 25 Atl. Rep. 1076. A space to be left for roads and levees by 
 riparian owners is a legal servitude and does not constitute an inmumbrance. 
 Bourg v. Niles, 6 La. Ann. 77. A dedication of a part of the premises as a 
 street is a fatal objection to the title. Turner v. Reynolds, 81 Cal. 214; 23 
 Pac. Rep. 546. Koshland v. Spring, 116 Cal. 689; 48 Pac. Rep. 58. A right 
 in third persons to pipe away water from a spring on the premises, entitles 
 the purchaser to relief. Melick v. Cross, 62 N. J. Eq. 545; 51 Atl. 16. The 
 existence of a highway on the land, at best, only entitles 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 X. J. Eq. 426; 56 
 Atl. Rep. 157. Mere non-user of the right of way, though for a period of 
 more than twenty years, 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. 558. 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 incumbrance as justifies the purchaser in rejecting the title, though the 
 vendor has not been completely divested of his title to the " right of way " 
 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 aban- 
 doned 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. 
 
 " 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 the evidence shows that there is no reason to believe that there 
 are minerals in the land. Winne v. Reynolds, 6 Paige (N. Y. ), 407. 
 
 "Wetmore v. Bruce, 54 N. Y. Super. Ct. 149; 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. Rep. 508. Jeffries v. Jeffries, 117 Mass. 184; 
 McGlynn v. Maynz, 104 Mass. 263. A restriction against building wifhin a 
 certain distance of a street line is an incumbrance not susceptible of pecuniary 
 compensation. Adams v. Valentine, 33 Fed. Rep. 1 (N. Y.). As to whether 
 building restrictions run with the land and bind subsequent purchaser 1 *, see 
 Trustees v. Lynch, 70 N. Y. 440; 26 Am. Rep. 615; Post v. Weil, 115 N. Y. 
 361; 22 N. 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 interest which
 
 OF DOUBTFUL TITLES. 777 
 
 uses, 19 unexpired leases, 20 charges upon the property for the support 
 of particular persons, 21 inchoate rights of dower, 22 outstanding life 
 
 the grantor or his executor, with power to convey, might release by quit- 
 claim deed to the holder of the title, and that such release removed an objec- 
 tion 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 unmar- 
 ketable. Batley v. Foerderer, 162 Pa. St. 400; 29 Atl. Rep. 8G8. A building 
 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, 64 N. Y. Supp. 908; 51 App. Div. 591. 
 
 19 Dart V. & P. (5th ed.) 119, where it is said that a covenant against cer- 
 tain 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. (N. S.) 278; 6 De G., M. & G. 33. Supervisors v. 
 Bedford High School, 92 Va. 292 ; 23 S. E. Rep. 299. Premises not to be used 
 as a slaugMer-house, Raynor v. Lyon, 46 Hun (X. Y. ), 227; tavern, Post v. 
 Weil, 8 Hun (N. Y.), 418; reversed in 115 N. Y. 361 ; 22 N. E. Rep. 145, on 
 ground that subsequent purchaser was not bound by the restriction ; for any 
 dangerous or offensive occupation, Terry v. Westing, 5 N. Y. Supp. 99. Any 
 restriction of the right to use the land for any and all reasonable purposes is 
 an incumbrance. Terry v. Westing, 5 N. Y. Supp. !>9. Van Schaick v. Lese, 
 66 N. Y. Supp. 64; Si Misc. Rep. 610. A covenant by a prior grantee not to 
 create a nuisance on the premises is not an incumbrance to which a purchaser 
 may object as a defect in the title, since the covenant is no more than what 
 the law would oblige the grantee to refrain from doing independently of con- 
 tract. Clement v. Burtis, 121 N. Y. 708; 24 N. E. Rep. 1013. A covenant 
 binding the land that no intoxicating liquors should ever be manufactured or 
 sold on the premises, renders the title unmarketable. Scudder v. Watt, 90 
 N. Y. Supp. COS; 98 App. Div. 40. 
 
 20 Judson v. Wass, 11 Johns. (N. Y.) 525; 6 Am. Dec. 392; Tucker v. Wood, 
 12 Johns. (N. Y.) 190; 7 Am. Dec. 305; Fuller v. Hubbard, 6 Cow. (N. 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. 
 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. Fru- 
 hauf v. Bendheim, 6 N. Y. Supp. 264; affd., 127 N. Y. 587; 28 N. E. Rep. 
 417. 
 
 "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. 
 
 "Sugd. Vend. 572, 575 (382. 384). Parks v. Brooks. 16 Ala. 520. Lewis 
 v. Coxe, 5 Harr. (Del.) 401. Andrews v. Word. 17 B. Mon. (Ky.) TilS. Por- 
 ter v. Noyes, 2 Greenl. (Me.) 22 : 1 1 Am. Dor. .0. Clarke v. Redman. 1 Bl. 
 (Ind.) 379. Contract for "good and lawful title," or conveyance "free from
 
 778 MARKETABLE TITLE TO REAL ESTATE. 
 
 interests, 1 * outstanding contract interests, 24 proceedings in eminent 
 domain 25 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. 2 * 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. 27 
 
 The owner of a lot subject to a local building restriction has no 
 such equitable easement in the other lots subject to that restric- 
 
 incunibranee," 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 \. Sumter, 2 Strobh. (S. C.) 81. Jones v. Gard- 
 ner, 10 Johns. (N. Y.) 266. Heimburg v. Ismay, 35 N. Y. Super. Ct. 35. 
 Fitts v. Hoitt, 17 N. H. 530. Goodkind T. Bartlett, 153 111. 419; 38 N. E. 
 Eep. 1045. Cowan v. Kane, 211 I1L 572; 71 N. E. Rep. 1097. A statute 
 mereh 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. Dunn T. Huether, 64 Hun 
 (N. Y.), 18; 18 N. Y. ^npp. 723. Where a wife was a party to a junior 
 mortgage, but was not a party to the senior mortgage and the junior mort- 
 gage was foreclosed, 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 the foreclosure of the senior mortgage was free from any claim on the 
 part of the wife. Calder v. Jenkins, 16 N. Y. Supp. 797. 
 
 a Griffith v. Maxfield, 63 Ark. 548; 39 S. W. 852; Dikeman *. 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 whole and rely on his grantor's 
 covenants of warranty in case he should be disturbed by the owner of the 
 precedent particular estate. 
 
 51 Gates v. Parmly, 93 Wis. 294; 66 X. W. Rep. 253; 67 N. W. Rep. 739. , 
 
 s Cavanaugh v. McLaughlin, 38 Minn. 83: 35 N. W. Rep. 576. Evans T. 
 Taylor, 177 Pa. 286; 35 Atl. 635. But in Wagner v. Perry, 47 Hun (X. 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 cnt 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 X. Y. 577; 32 N. E. Rep. 976,. and Darnell v. Shaw, 166 Mass. 582; 44 
 X. E. Rep. 991, where a different view seems to have been entertained. 
 
 *O"Kane T. Riser, 25 Ind. 168. 
 
 ^Ante, 85, 246.
 
 OF DOUBTFUL TITLES. 779 
 
 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 incuinbrance or defect in his title to which 
 a purchaser may object. 28 
 
 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 presumed 
 to have been made subject to such condition. 29 A contract, to give 
 a " good and sufficient title," will not oblige the vendor to ex- 
 tinguish a perpetual rent charge on the premises, where the con- 
 tract expressly provides that the purchaser shall take subject to such 
 charge. 30 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 pur- 
 chaser cannot reject such deed on the ground that there is a private 
 right of way over the premises. 81 
 
 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. 32 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 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 tV-e wall should be of the same size and like materials.** 
 
 The existence of a party wall covenant, is, of course, no ob- 
 
 "Mead v. Martens, 47 N. Y. Supp. 299; 21 App. Div. 134. 
 
 "Archer v. Archer, 84 Hun (N. Y.), 297; 32 N. 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 N. Y. 106. (Compare Corn v. Bass, 59 N. Y. 
 Supp. 315; 43 App. Div. 53.) Levy v. Hill, 75 N. Y. Supp. 19; 70 App. 
 Div. 95; Scannel v. Soda Fountain Co., 161 161 Mo. 600; 61 S. W. Rep. 889. 
 
 "O'Neil v. Van Tassel, 137 N. Y. 297; 33 N. E. Rep. 314, distinguishing 
 Hendricks v. Stark, supra. (Compare Schaefer v. Bluinenthal, 169 N. Y. 
 169 N. Y. 221; 62 N. E. Rep. 175.)
 
 MARKETABLE TITLE TO REAL ESTATE. 
 
 jection 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. 34 
 
 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. 35 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. 36 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 con- 
 tract, is immaterial and he cannot be compelled to pay the pur- 
 chase money. 27 
 
 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. 38 He will not be compelled to buy a law suit. 
 
 M Kahn v. Mount, 61 N. Y. Supp. 358; 46 App. Div. 84. 
 
 "Ante, 85. 
 
 36 Park v. Johnson, 7 Allen (Mass.-), 378. In Blanck v. Sadlier, 153 N. Y. 
 551; 47 N. E. Rep. 520, it was held that one who purchased at an auction 
 sale in 1894, subject to a mortgage, was not entitled to rescind and recover 
 his deposit on the ground that the conditions of sale failed to state that 
 the mortgage was payable in gold instead of currency, there being no proba- 
 bility that the United States would, during the life of the mortgage (three 
 years) refuse to redeem its obligations in gold. 
 
 "Evans v. Taylor, 177 Pa. 286; 35 Atl. 635. 
 
 38 Rife v. Lybarger, 49 Ohio St. 429; 31 N. E. Rep. 768. In Richards v. 
 Mercer, 1 Leigh (Va.), 125, a purchaser was compelled to complete the con- 
 tract, 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 compelled to take the title with the burden of 
 showing the error of that decision in future litigation.
 
 OF DOUBTFUL TITLES. 781 
 
 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. 39 Neither will the purchaser be compelled to complete the 
 contract when the existence of the incumbrance, or its extension 
 to the purchased premises, is a doubtful question of law or fact. 40 
 Xor where the incumbrance is inchoate and undetermined in its 
 Character, e. g., an attachment levied upon the estate of the vendor 
 in the land. 41 But it has been held that a lis pendcns without 
 evidence to show that it is founded upon a just claim, is no such 
 incumbrance as will justify a purchaser in refusing to perform the 
 contract. 42 And a mortgage duly executed, acknowledged and re- 
 
 " Moore v. Williams, 115 N. Y. 586; 22 N. E. Rep. 233. 
 
 40 Dyker Meadow L. & I Co. v. Cook, 159 N. Y. 6 ; 53 N. E. Rep. 690. 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 a certain judg- 
 ment 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 incumbered, since he might not have the means of showing 
 the facts respecting the judgment, if his title should afterwards 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 judgments were 
 not liens because the land was the homestead of the former owner. There 
 were facts in evidence which made it doubtful whether such 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 judgment 
 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. Y. Supp. 425; 56 App. Div. 30. A judgment 
 is also no ground of objection to his fitle if the time during which by 
 statute, it is a charge or lien on lands, has expired. Wessel v. Cramer, 67 
 N. Y. Supp. 425; 56 App. Div. 30. 
 
 41 Linton v. Hichborn, 126 Mass. 32. 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. 
 
 "Ante, 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- 
 oured by collusion of the purchaser is no ground of objection to the title. 
 Brown v. Bellows, 4 Pick. (Mass.) 179. And if the attachment and W 
 pendens be discharged before decree, the vendor will be entitled to specific
 
 782 MARKETABLE TITLE TO HEAL ESTATE. 
 
 corded, 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. 43 So, 
 also, a mortgage invalid because executed by one having no au- 
 thority, creates no objection to the title. 44 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. 45 
 
 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. 46 
 
 The rule that a purchaser cannot be compelled to take a doubtful 
 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. 47 Thus, where the pur- 
 performance. Daniel v. Smythe, 5 Bi Mon. (Ky.) 347. Haffey v. Lynch, 143 
 N. Y. 241 ; 38 N. E. Rep. 298. 
 
 ^Wilsey v. Dennis, 44 Barb. (N. Y.) 354. 
 
 ** Glasscock v. Robinson, 21 Miss. 85. 
 
 "Young v. Hervey, 207 Pa. 396; 56 Atl. 946. 
 
 "Krekeler v. Aulbach, 64 N. Y. Supp. 908; 51 App. Div. 591. 
 
 17 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 
 MABSHAIX, Ch. J., said : " This allegation is not, I think, entirely correct. 
 The objection is not entirely confined to cases of doubtful title. Tt applies 
 to incumbrances 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 ard ad- 
 mitted charge, to which the purchase money may by consent be applied when
 
 OF DOUBTFUL TITLES. 783 
 
 chaser objected that the premises were subject to a railroad mort- 
 gage, 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 prop- 
 erty which it was intended to cover, the court held the purchaser's 
 objection good, without deciding whether the mortgage was or was 
 not valid. 48 
 
 The obligation of the purchaser to see to the application of the 
 purchase money in certain cases of defined 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 see- 
 ing 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 construction of 
 the instrument creating the trust. 49 
 
 it become? 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. 
 
 "Nicol v. Carr, 35 Pa. St. 381. Titles held not marketable. Whether 
 certain building restrictions were intended as a condition defeating the 
 estate, or merely as a proviso for the benefit of adjacent lots: Jeffries v. 
 Jeffries, 117 Mass. 184. Whether a certain $4,000,000 railroad mortgage was 
 a valid lien on the purchased premises. Nicol v. Carr, 35 Pa. St. 381. Title* 
 held marketable. 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. 28. Whether a release of a 
 certain building restriction had ever been executed: Post v. Bernheimer, 31 
 Run (N. 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, 292; 11 Am. Dee. 610. 
 
 49 St. Mary's Church v. Stockton, 8 N. J. Eq. 520, 531. A charter under 
 which the vendors (certain church officials) held in this ease, contained a 
 proviso that in case of a sale of the premise* granted, lands of the full 
 value of those sold should with the proceeds of the sale be purchased nnl 
 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
 
 784 MABKETABLE TITLE TO EEAL ESTATE. 
 
 In theory a pecuniary incumbrance which is less in amount 
 than the purchase money is, as a general rule, no objection to the 
 title, because the purchase money may be applied to the discharge 
 of the incumbrance and the incumbrancer be compelled to join in 
 the conveyance or to execute a release. 50 But it is obvious that cir- 
 cumstances might exist which would make the incumbrance a seri- 
 ous objection to specific performance by the purchaser. The prop- 
 erty may have been purchased with a view to speedy resale as a 
 speculation, and difficulty may be encountered in finding a person 
 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 incumbrance 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. 51 The 
 fact that the unpaid purchase money may be applied to the dis- 
 charge of an incumbrance does not affect the purchaser's right to 
 rescind, if the vendor fraudulently concealed the existence of the 
 incumbrance. 62 
 
 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 
 
 the application of the purchase money, and the distinctions which prevail 
 on this subject, it is sufficient to say that this proviso might be a serious, 
 embarrassment to a purchaser. He would be subjected to the issue of the 
 question 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, as it seems from the authorities, be 
 bound to see that the purchase money was applied to the purpose mentioned 
 in the proviso. Story's Eq. Jur. 1127." Garnett v. Macon, 6 Call (Va.), 
 308. 
 
 "Ante, 245, 305. 
 
 81 Ante, ch. 24, 246. Peak v. Gore, 94 Ky. 533. 
 
 "Crawford v. Keebler, 5 Lea (Tenn.), 547. Peak v. Gore, 94 Ky. 533.
 
 OF DOUBTFUL TITLES. 785 
 
 not be enforced on the ground that it is doubtful whether the in- 
 cumbrance will ever be foreclosed. 53 
 
 "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 was 
 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 
 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 so 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 uncanceled 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 
 BRADBURY, 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, 
 
 50
 
 786 MARKETABLE TITLE TO REAL ESTATE. 
 
 307. Apparently unsatisfied incumbrances. It seems that in- 
 cumbrances upon the purchased premises which do not appear by 
 the record to have been satisfied will render the title doubtful or 
 unmarketable, 54 even though the vendor be able to show by parol 
 testimony that they have been satisfied. 55 They constitute a cloud 
 upon the title, which the vendor should remove before calling upon 
 the purchaser to complete the contract. The means of showing 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 objection 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 satisfaction of the incum- 
 brance on the record. 56 Where the vendor is in possession of evi- 
 dence which would entitle him to such an entry he should procure 
 it to be made. If he have not such evidence, the purchaser should 
 be relieved from the contract. If, however, the purchase money 
 
 the title was perfect, but was subject to a mere possibility that a claim might 
 be asserted on an old uncanceled 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 purpose was well known to the 
 vendor, and that by reason of this incumbrance, they lost a sale at a com 
 aiderable 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. 
 
 65 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. 
 
 As in Virginia, Code 1887, 3564.
 
 OF DOUBTFUL TITLES. 787 
 
 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 incum- 
 brance appears unsatisfied of record will not entitle the purchaser 
 to rescind. 67 It seems that if a suit in equity by the vendor be 
 necessary to remove a cloud upon the title caused by an apparent 
 incumbrance of record, the purchaser cannot be compelled to await 
 the issue of the suit, 58 and may refuse to complete the contract. 
 But if the vendor can, within a reasonable time, remove the objec- 
 tion by procuring releases, or appropriate entries upon the records, 
 showing satisfaction of the incumbrance, no reason is perceived 
 why he should not be permitted to do so, upon the general prin- 
 ciple 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. 69 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 recogni- 
 tion of the mortgage as a subsisting lien during that time, it was 
 held that the purchaser could not refuse to take the title. 80 The 
 fact that an incumbrance upon the premises appears unsatisfied of 
 record, will not justify the purchaser in his refusal to complete the 
 contract, when the incumbrance is of such long standing as to 
 raise a presumption that it has been paid. 61 Where a statute pro- 
 
 "Espy V. Anderson, 14 Pa. St. 308. 
 
 "Kenny v. Hoffman, 31 Va. 442. Bartle v. Curtis, 68 Iowa, 202; 20 N. W. 
 Rep. 73. 
 
 "Pangborn v. Miles, 10 Abb. N. Cas. (N. Y.) 42. Austin v. Barnum, 52 
 Minn. 136; 53 N. W. Rep. 1132. 
 
 "Baldwin v. Trimble, 85 Md. 396; 36 L. R. A. 489; 37 Atl. 176. 
 
 "Katz v. Kaiser, 154 N. Y. 296; 48 N. E. Rep. 532. Paget v. Melehior, 
 58 N. Y. Supp. 913; 42 App. Div. 76. N. Y. Life Ins. Co. v. Lord, 40 C. C. A.. 
 585; 100 Fed. Rep. 17. Belmont v. O'Brien, 2 Kern. (N. Y.) 304. where 
 there were two mortgages on the premises, one sixty-six and the other eighty- 
 four years old. Kip v. Hirsh, 103 N. Y. 50.'): 9 N. E. Rep. 317; Pnmrhorn v. 
 Miles, 10 Abb. N. C. (N. Y.) 42. Forsyth v. Leslie, 77 N. Y. Supp. 826; 74 
 App. Div. 517; Barber v. Gery, 64 N. J. Eq. 263; 53 Atl. 483. Morgan v.
 
 788 MARKETABLE TITLE TO BEAT. ESTATE. 
 
 vided 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 con- 
 stituted no objection to the title after the lapse of that time.* 1 
 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. 68 
 
 In regard to releases, or marginal entries upon the public rec- 
 ords, 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. 64 Thus, if the release 
 is by an attorney in fact, assignee or personal representative, 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 qualifica- 
 tion as the case may be, or the purchaser will be justified in reject- 
 ing the title, if the contract provides that the abstract shall show a 
 good title of record. 65 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 unauthor- 
 ized and void. 6 * 
 
 Scott, 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. 
 In Hayes v. Nourse, 8 N. Y. State Rep. 397, a lis 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. 
 
 Green v. Hernz, 33 N. Y. Supp. 843. Kip v. Hirsh, 103 N. Y. 565; 9 N. 
 E. Rep. 317, where held also that such statute was retrospective in its op- 
 eration, and applied to trusts in existence before the passage of the act. 
 Disapproving McCahill v. Hamilton, 20 Hun (X. 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. 
 
 Godfrey v. Rosenthal, 17 S. Dak. 452; 97 N. W. 365. 
 
 Warvelle Abst. 344. 
 
 " O'Neill v. Douthett, 40 Kans. 689 ; 20 Pac. Rep. 493, reversing 3 Kana. 
 316; Durham v. Hadley, 47 Kans. 73; 27 Pac. Rep. 105. 
 
 "fonley v. Dibber, 91 Ind. 413.
 
 OF DOUBTFUL TITLES. 789 
 
 307-a. Encroachments and deficiencies. Encroachments. A 
 fruitful 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 is entitled to a rescission of the contract and a 
 return of his deposit;, on the ground that the title is unmarketable.' 7 
 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 acquiesence, the 
 beams of the adjoining building are inserted in such wall, no legal 
 right to the use of the wall being shown. 68 But insignificant and 
 immaterial encroachments upon adjoining property will not en- 
 title the purchaser to rescind. 69 No rule can be laid down that one 
 or two inches of encroachment w r ill 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 folloNy ; that he will be prevented from using 
 the buildings in the condition which they were in at the time of 
 the purchase. 70 
 
 The encroachment will not entitle the purchaser to relief where 
 it has existed for such length of time and under such circumstances 
 as to bar any claim by the owner of the premises encroached upon. 71 
 
 "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. Sachs, 92 N. Y. Supp. 107 ; 102 App. Div. 44. Bergmann 
 v. Klein, 89 N. Y. Supp. 624; 97 App. Div. 15. The extent of the injury 
 to the adjoining premises is immaterial. Snow v. Monk, 80 N. Y. Supp. 719; 
 81 App. Div. 206. 
 
 "Spero v. Shulz, 43 N. Y. Supp. 1016; 14 App. Div. 423. Neher v. Brunck- 
 man, 55 N. Y. Supp. 107; 36 App. Div. 625. 
 
 * Merges v. Ringler, 54 N. Y. Supp. 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. 398. The encroachment of show windows nevcntwn 
 inches on the street is no objection to the title. Keim v. Sachs. 92 N. Y. 
 Supp. 107: 102 App. Div. 44. 
 
 "Merges v. Ringler, 54 N. Y. Supp. 280; 34 App. Div. 415. 
 
 71 Weil v. Radley, 52 X. Y. Supp. 398. Harrison v. Platt, :>4 X. Y. Stip;. 
 842; 35 App. Div. 533. Where a house on the lot had stood f c r thirty years 
 without objection to an encroachment of two or throo inches on nn n-ljoining 
 lot, it was held that the purchaser could not iefu*> tl:c title. Katz v.
 
 790 MARKETABLE TITLE TO EEAL ESTATE. 
 
 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. 72 In Xew York it is 
 provided by statute that suit to recover land encroached upon by 
 the wall of a building must be brought within a year after the 
 erection of the building. 73 In cases to which that act applies, the 
 purchaser cannot object to the title where no such suit has been 
 brought within the year prescribed. 74 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 en- 
 croaching 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. 75 
 
 307-b. Deficiencies in Quantity. The objection is fre- 
 quently 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 
 
 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 ad- 
 verse possession to the space encroached upon. Miner v. Hilton, 44 N. Y. 
 Supp. 155; 15 App. Div. 55. 
 
 71 Stevenson v. Fox, 57 N. Y. Supp. 1094 ; 49 App. Div. 354. 
 
 w Code Civ. Proc. N. Y. 1499. 
 
 74 Volz v. Steiner, 73 N. Y. Supp. 1006 ; 67 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 limi- 
 tation 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. 719; 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. The fact that the stoop of a 
 building projects several feet beyond the lot line into" the street, is no ob- 
 jection to the title. Broadbelt v. Loew, 162 N. Y. 642; 57 N. E. Rep. 1105. 
 Levy v. Hill, 75 N. Y. Supp. 19; 70 App. Div. 95. Slight encroachments 
 beyond 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. 791 
 
 bounds. If the deficiency be so great or so important, that the 
 purchaser cannot be required to complete the contract with com- 
 pensation, or abatement of the purchase money, for the defect, the 
 title is said to be not marketable, 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. 76 
 
 A title will not be rendered unmarketable by a deficiency in area 
 when the contract was made with reference to fixed monuments 
 bounding the land. 77 But the rule that monuments control metes 
 arid 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. 78 
 
 "Post, Ch. 33. Albro v. Gowland, 90 N. Y. Supp. 796; 98 App. Div. 474. 
 
 "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 citj 
 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 bound- 
 aries 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. 
 
 "Fuhr v. Cronin, 81 N. Y. Supp. 536; 82 App. Div. 210
 
 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. 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. 
 
 308. BEFORE THE TIME FIXED FOR COMPLETING THE CON- 
 TRACT. 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 necesary to make the title good 
 can be accomplished before the time specified for making the con- 
 veyance. 1 The vendor is not necessarily guilty of fraud in repre- 
 
 J l Sugd. Vend. (8th Am. ed.) 396; 1 Chitty Cont. (llth ed.) 431; Will. 
 Eq. Jur. 290. Stowell v. Robinson, 3 Bing. (N. C.) 928; In re Bryant, 44 Ch. 
 Div. 218. Gray v. Smith, 76 Fed. 525. Harris v. Carter, 3 Stew. (Ala.) 236; 
 Clemens v. Loggins, 2 Ala. 518. Dresel v. Jordan, 104 Mass. 407. Gibson v. 
 Newman, 1 How. (Miss.) 341. Goss v. Singleton, 2 Head (Tenn.), 67. An- 
 drew v. Babcock, (Conn.) 26 Atl. Rep. 715. Dennis v. Strasburger, 89 Cal. 
 583; 25 Pac. Rep. 1070. Hundley v. Tibbetts, (Ky.) 16 S. W. Rep. 131. 
 More v. Smedburgh, 8 Paige Ch. (N. Y.) 600; Friedman v. Dewees, 33 N. Y. 
 Super. Ct. 450. Monsen v. Stevens, 56 111. 335. Rowersock v. Beers, 82 111.
 
 OF THE RIGHT OF THE VENDOR TO PERFECT THE TITLE. 793 
 
 senting that his title is good and indefeasible, if he be able to make 
 it so 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 speculation in the property of stran- 
 gers. But the purchaser cannot object to specific 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 pur- 
 chaser is put to no delay or inconvenience, and there is nothing of 
 which he can complain. 8 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 
 
 App. 396. Elder v. Chapman, 70 111. App. 288; Armstrong v. Breen, 101 
 Iowa, 9; 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. Sutton, 96 
 Va. 469; 31 S. E. Rep. 894. Jones v. Taylor, 7 Tex. 240; 56 Am. Dec. 48; 
 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. 
 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 per- 
 formance 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 per- 
 formance 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. 
 
 * Cases cited in last note. 
 
 Pot, this chapter, 315. Webb v. Stephens, (Wash.) 39 Pac. Rep. 952. 
 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 N. E. Rep. 985.
 
 794 MARKETABLE TITLE TO KEAL ESTATE. 
 
 the lien ready to satisfy it on payment he can rely on the purchase 
 money as the fund for such payment. 4 Therefore, the foreclosure 
 of a mortgage upon the premises before a final payment of the pur- 
 chase 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 purchase money should be paid, 
 or unless there should be circumstances in the case that would make 
 inequitable a compulsory performance by the vendee. 5 If by the 
 contract it is expressly provided that the purchaser shall receive a 
 title clear of all incumbrances, the vendor must discharge these 
 before the time fixed for completing the contract, and the purchaser 
 will not be in default in failing to tender the purchase money if the 
 vendor does not remove the incumbrance before that time. 6 The 
 purchaser should make his objections to the title in time to enable 
 the vendor to remove them. 7 And in any suit in which he seeks to 
 rescind the contract he should specify the defect of title of which 
 he complains 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. 8 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. 9 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 
 the deposit, be heard to say that the time fixed for the completion 
 of the contract has not yet expired. 10 
 
 Generally, in the purchase of an estate and the appointment of a 
 particular day for the completion of the title, the principal object 
 
 4 Webster v. Kings Co. Trust Co., 80 Hun (N. Y.), 420; 30 N. Y. Supp. 357. 
 Gibson v. Newman, 1 How. ( Miss.) 346. Duluth Land Co. v. Klovdahl, 55 
 Minn. 341; 56 N. W. Rep. 1119. Anderson v. Creston Land Co., 96 Va. 257; 
 31 S. E. Rep. 82. 
 
 B Pate v. McConnell, (Ala.) 18 So. Rep. 98. Post, this chapter, 317. 
 
 Morange v. Morris, 34 Barb. (N. Y.) 311. 
 
 'More v. Smedburg, 8 Paige (N. Y.), 600. Easton v. Montgomery, 90 Cal. 
 307; 27 Pac. Rep. 280. 
 
 8 Hogan v. MeMurtry, 5 T. B. Mon. (Ky.) 181. 
 
 "Dennis v. Strasburger, 89 Cal. 583; 26 Pac. Rep. 1070. 
 
 " Seiberling v. Lewis, 93 111. App. 549.
 
 OP THE BIGHT OF THE VENDOR TO PERFECT THE TITLE. 795 
 
 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, re- 
 gard being had to all the circumstances of the case and the nature 
 of the title to be made." u In a case in which the contract provided 
 than ten days should be allowed for examination of the title, and 
 that if the title proved unsatisfactory the deposit should be re- 
 turned, 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 contract until he had given such 
 notice of his objections and furnished the vendor an opportunity 
 to remove them. 12 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. 13 And after demand, he must be al- 
 lowed a reasonable time in which to make out the title. 14 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 de- 
 livered within a reasonable time for that purpose, after the vendee 
 has performed on his part; and if the vendor perfects his title 
 within such time, he may enforce specific performance of the 
 contract. 16 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 
 
 11 Language of ALDEBSON, B., in Hipwell v. Knight, 1 Yo. & Coll. 415. 
 
 "Anderson v. Strasburger, 92 Cal. 38; 27 Pac. Rep. 1095, (citing Englander 
 v. Rogers, 41 Cal. 420; Dennis v. Strasburger, 89 Cal. 583, and Easton T. 
 Montgomery, supra). Arnett v. Smith, 11 N. Dak. 55; 88 N. W. Rep. 1037. 
 Edmison v. Zaborowski, 9 S. Dak. 40; 68 N. VV. Rep. 288. 
 
 "Evans v. Boiling, 5 Ala. 550. Morgan v. Scott, 26 Pa. St. 51. Gibson Y. 
 Brown, 214 111. 330; 73 N. E. Rep. 578. 
 
 14 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 deed, though the 
 property had been bought for speculative purposes during a time of inflated 
 prices and had declined in value before the title was perfected. 
 
 "Williamson v. Neeves, 94 VVis. 656; 69 N. W. 806.
 
 796 MARKETABLE TITLE TO REAL ESTATE. 
 
 the vendor a reasonable time in which to perfect the title. 16 If the 
 parties arrange for the removal of an incumbrance prior to per- 
 formance, without naming a specific day, the removal within a 
 reasonable time is a sufficient performance. 17 We have already 
 seen under what circumstances 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. 18 
 ' 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 
 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 conveyance 
 is to be made, and the objection that he had none at the time the 
 contract was made will be unavailing. 19 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, undertakes to sell 
 the property of a third person, speculating in his chances of ac- 
 quiring the title from that person. 20 But equity will not always 
 rescind a contract which it refuses to enforce, the parties being left 
 to their remedies at law. 21 And, at law, in the case under con- 
 sideration, the purchaser, having agreed to pay the purchase money 
 before the time when he is entitled to a conveyance, 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, 22 unless it appears that, be- 
 cause of the vendor's insolvency, or for some other reason, the pur- 
 chaser's remedy by action for breach of the contract will prove un- 
 
 " Russell v. Shively, 3 Bush (Ky.), 162. 
 
 "Cramer v. Mooney, 59 N. J. Eq. 164; 44 All. 625. 
 
 "Ante, ch. 8. 
 
 "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. 
 
 28 Ante Harrington v. Higgins and other cases cited, supra. Diggle T. 
 Boulden, 48 Wis. 477.
 
 OF THE EIGHT OF THE VENDOR TO PERFECT THE TITLE. 797 
 
 availing. 23 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.* 4 
 Neither will he be allowed that 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. 25 
 
 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. 26 
 
 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." 
 The vendor must show a present ability to perform the contract on 
 his part. Thus, where the contract was for an exchange of lands, 
 and the complainant prayed an injunction to restrain the defendant 
 from receiving the rents and profits of his own property pending 
 the complainant's efforts to remove an incumbrance from the prem- 
 ises he was to give in exchange, the court reversed an order of the 
 court below granting the injunction. 28 
 
 "Mclndoe 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. Homles, 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 
 
 it is rendered to him, fails in a material respect from any cause, the vendor 
 
 cannot revive the contract by tendering a conveyance of a good and sufficient 
 
 title. Anderson v. Strasburger, 92 Cal. 38; 27 Pac. Rep. 1095. 
 
 "White v. Needham, 21 Ky. Law R. 1051; 54 S. W. Rep. 9. 
 
 "Fishback v. Williams, 3 Bibb (Ky.), 342; Jarboe v. McAtee, 7 B. Mon. 
 (Ky.) 279. Lesesne v. Witte, 5 S. C. 462; Bates v. Lyons, 7 S. C. 85; Lyles 
 v. Kirkpatrick, 9 S. C. 265. 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. McNutt, 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. Salter, 8 Paige (N. Y.), 472.
 
 798 MARKETABLE TITLE TO BEAL ESTATE. 
 
 The purchaser will not be allowed to forestall the vendor by 
 acquiring an outstanding right and setting it up adversely to the 
 latter. 29 Specific performance will be decreed against the pur- 
 chaser, allowing him the amount paid for the interest. The same 
 rule is enforced at law. 30 
 
 The vendor may perfect his title if he chooses, but in the ab- 
 sence of any agreement or covenant to that effect, there is no obliga- 
 tion upon him so to do, and the purchaser cannot recover damages 
 against him for refusing to perfect the title. 31 
 
 309. AFTER THE TIME FIXED FOB 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. 32 As a general 
 rule it is sufficient if he be able to convoy a good title at any time 
 before decree in any proceeding in which it is sought to rescind or 
 to enforce the contract. 113 He may perfect the title at any time 
 
 2 Murrell v. Goodyear, 1 De G., F. & J. 432. Westall v. Austin, 5 Ired. Eq. 
 (N. C.) 1; Kindley v. Gray, 6 Ired. Eq. (N. C.) 445. Bush v. Marshall, 6 
 How. (U. S.) 691. Roller v. Effinger, (Va.) 14 S. E. Rep. 337. 
 
 "Ante, 202. Fosgate v. Herkimer Mfg. Co., 12 Barb. (N. Y.)-352. 
 
 " Presbrey v. Kline, 20 D. C. 513. 
 
 "Post, 310. 
 
 s8 Fry Sp. Pref. (3d Am. ed.) 1349; 2 Dan. Ch. Pr. 1195,n.; Adams Eq. 
 (5th Am. ed.) 199, 209. 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. Owens 
 v. Cowan, 7 B. Mon. (Ky.) 152; Gaither v. O'Doherty, (Ky.) 12 S. 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. 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. 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. Syne v. Johnston, 3 Call (Va.), 558. Second Union, 
 etc., Soc. v. Hardy, 31 N. J. Eq. 442; Young v. Collier, 31 N. J. Eq. 444. 
 McKinney v. Jones, 55 Wis. 39. Mitchell v. Allen, 69 Tex. 70; Burwell v. 
 Sollock, (Tex. Civ. App.) 32 S. W. Rep. 844. Coleman v. Burk, 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. Maryland Const.
 
 OF THE EIGHT OF THE VENDOR TO PERFECT THE TITLE. 799 
 
 before decree by obtaining a release of incumbrances* 4 or of adverse 
 claims. 35 Therefore, where the contract required the conveyance of 
 a fee and the vendor had only a life estate, but pending a suit bv 
 him for specific performance the life estate fell in, the purchaser 
 was compelled to complete the contract. 36 So, also, where the ven- 
 dor became divested of the title, but reacquired it pending suit by 
 the purchaser for rescission. 37 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 pro- 
 cured a conveyance before the hearing, the purchaser was required 
 TO complete the contract. 38 Where the contract does not provide a 
 
 Co. v. Kuper, 90 Md. 529; 45 Atl. 197. McNeill 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 Pae. 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. Wynne v. Morgan, 7 Ves. 202. This is a much cited case. The suit 
 was by the vendor for specific performance. The defendant, in his answer, 
 did not object that time was material, 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 Russ. & 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 pur- 
 chaser 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 en- 
 rolled and signed. Fraker v. Brazelton, 12 Lea (Tenn.), 278. 
 
 "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 Mc- 
 Lean (U. S.), 64. Voorhees v. De Meyer, 2 Barb. (N. Y.) 37. The vendee 
 cannot refuse to perform the contract on the ground that the vendor has per- 
 mitted the premises to be sold for delinquent taxes, if the time in which the 
 premises may be redeemed has not expired. Marsh v. Wyckoff, 10 Boaw. 
 (N. Y.) 202. 
 
 "Jenkins v. Fahig, 73 N. Y. 358. 
 
 "Jenkins v. Whitehcad, 7 Sm. & M. (Miss.) 577. 
 
 81 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.
 
 800 MARKETABLE TITLE TO REAL ESTATE. 
 
 time within which the vendor is to remove defects shown by the 
 abstract, a reasonable time should be allowed therefor." 
 
 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 
 go changed as to render it inequitable to compel the purchaser to 
 receive the perfected title, specific performance on his part will be 
 denied. 
 
 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 without affording 
 the vendor an opportunity to perfect the title. 40 Where neither the 
 terms of the contract nor the circumstances of the parties make per- 
 formances at the specified time material, the purchaser cannot, on 
 finding the title defective, rescind the contract without notifying 
 the vendor to remove the defects within a reasonable time. 41 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 
 
 a 1 Sugd. Tend. (8th Am. ed.) 397. Easton v. Montgomery, 90 Cal. 307; 27 
 Pac. Rep. 280. A provision that the seller should furnish a merchantable 
 nbetract 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. Evans v. Gerry, 174 111. 595; 51 N. E. Rep. 615. 
 
 "Ante, 85. 1 Sugd. Vend. (8th Am. ed.) 407; Fry Sp. Perf. 1307. 
 Set on v. Slade, 7 Ves. 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 Grat. (Va.) 138. 
 
 " Schiffer v. Dietz, 83 N. Y. 300; Myers v. DeMeier, 52 X. Y. 647.
 
 OF THE EIGHT OF THE VENDOR TO PEEFECT THE TITLE. 801 
 
 damages for breach of the covenants, has already been considered. 41 
 The vendor cannot have an indefinite time in which to perfect 
 the title. In a case in New 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, establish 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 pro- 
 ceeding within sixty days, and after that was free to pursue the 
 litigation at his pleasure, while the purchaser remained bound 
 for an unknown period, with no guaranty of getting a title in the 
 end. 43 
 
 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 o the contract. 44 
 Thus, if a man buy a house, to be used by him as a residence, 45 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 
 contract requires. 46 Time will not be deemed to have been of the 
 
 "Ante, 215. 
 
 43 People v. Open Board, etc., 92 N. Y. 98. In Emerson v. Roof, CO How. Pr. 
 (N. Y.) 125, the purchaser was allowed twenty days in which to perfect the 
 title. 
 
 44 1 Sugd. Vend. (8th Am. ed.) 404; Fry Sp. Perf. (3d Am. ed.) I 1041, 
 et seq. Seibel v. Purchase, 134 Fed. Rep. 484. 
 
 44 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. 
 
 "Fry Sp. Perf. (3d Am. ed.) S 1044, et seq. Going v. Oakland, etc., Soc., 
 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. 
 51
 
 802 MARKETABLE TITLE TO REAL ESTATE. 
 
 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. 47 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. 4 * 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. 4 * 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 es- 
 sence 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. 50 
 
 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- 
 ance will not be denied. 51 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. 5 * 
 If he gives time after the day fixed for the performance of the con- 
 
 "Kemper v. Walker, 17 Ky. Law R. 1100; 32 S. W. Rep. 1093. 
 
 Post, " Exceptions," 4, 8 and 9. Pry Sp. Perf. (3d Am. ed.) f 1044, et *eq. 
 Express stipulation in the contract, Mackey v. Ames, 31 Minn. 103; 16 N. W. 
 Rep. 541 : by notice. Myers \. De Meier, 4 Daly (N. Y.), 343; affd., 52 N. Y. 
 647; Emerson v. Roof, 66 How. Pr. (X. Y.) 125. 
 
 * Hepwell v. Knight, 1 Yo. * Coll. 419. Hoyt v. Tuxbury, 70 Dl. 331. 
 
 1 Sugd. Vend. (8th Am. ed.) 397 (258). Frazier v. Boggs, 37 Fla. 307; 
 20 So. Rep. 245. 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, 91. 
 
 * 1 Sugd. Vend. (8th Am. ed.) 331 (218). Chamberlain v. Lee, 10 Sim. 444. 
 Evans v. Boiling, 5 Ala. 550.
 
 OF THE EIGHT OF THE VENDOR TO PERFECT THE TITLE. 803 
 
 tract, he will, in most cases, be deemed to have waived the objec- 
 tion that time was material. 13 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, M But if time were not 
 material he cannot refuse to convey because the purchase money 
 was not paid on the day fixed. 55 It is obvious that the purchaser 
 cannot object that time is material when he i? in possession, and 
 the failure to convey is brought about by his default in the pay- 
 ment of the purchase money. 5 * 
 
 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. 57 
 
 "Stevenson v. Polk. 71 Iowa, 278; 32 N. W. Rep. 340. What is meant by 
 the maxim that time Ms not of the essence of the contract in equity, has been 
 nowhere more clearly stated than in Mr. Bispham's Principles of Equity (3d 
 cd.), 5 391: "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 stipula- 
 tions 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 CAIRNS in Tilley v. Thomas, L. R., 3 Ch. App. 67. 
 
 "Fuller v. Hovey, 2 Allen (Mass.), 325; Goldsmith v. Guild, 10 Allen 
 (Mass.), 239. Here the contract was dated March nineteenth, and was to bo 
 completed in ten days. The purchaser offered to perform March thirty-first, 
 but 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, but was 
 not tendered till the twenty-fifth of the following May. specific performance 
 by the vendor was decreed, the purchaser having in the meanwhile entered 
 upon and improved the land, with his knowledge and consent. Bra*hier v. 
 Gratz, 6 Wh. (U. S.) 533. See, also. Presbrey v. Kline, 20 D. C. 513. 
 
 Taylor v. Longworth, 14 Pet. 174. 
 
 "Cassell v. Cooke, 8 S. & R. (Pa.) 288; 11 Am. Dec. 610. 
 
 "Augsberg v. Meredith, 101 111. App. 629.
 
 804 MARKETABLE TITLE TO EEAL ESTATE. 
 
 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 such title as he covenanted to convey, 05 and 
 this though no demand for the deed was ever made, the time for 
 delivering the deed having been specified in the contract. 59 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. 60 
 
 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. 61 So, e converse, as we have seen, a purchaser who refuses 
 to complete the contract on account of a defect in the title, cannot 
 afterwards demand specific performance by the vendor. 62 
 
 313. (4) Loss and injury to purchaser. The rule that the 
 vendor may perfect the title after the time fixed for completing the 
 contract, does not apply where to enforce it would entail loss and 
 injury upon the purchaser, as where the land has greatly depreci- 
 ated in value pending the removal of objections to the title. 63 
 
 "Stitzel v. Copp, 9 W. & S. (Pa.) 29; Magaw v. Lothrop, 4 W. & S. (Pa.) 
 321. Clark v. Weis, 87 111. 438; 29 Am. Rep. 60; Tryce v. Dittus, 199 111. 
 189; 65 N. E. Rep. 220. Hudson v. Max Meadows L. & J. Co., 99 Va. 537; 
 39 S. E. Rep. 215. Meshew v. Southworth, 133 Mich. 335; 94 N. W. Rep. 1047. 
 
 "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. 
 
 81 1 Sugd. Vend. (8th Am. ed.) 408. Guest v. Homfray, 5 Ves. 818. 
 
 * Ante, 193. Presbrey v. Kline, 20 D. C. 513. 
 
 ** 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 
 the war of 1861-18G5 intervened between the purchase of the land and the
 
 OF THE EIGHT OF THE VENDOR TO PERFECT THE TITLE. 805 
 
 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. 64 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. 85 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. 66 
 
 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 
 acted in bad faith in respect to the title. 87 This exception, of 
 
 vendor's suit for specific performance, so that the value of the land had 
 greatly depreciated. In Hepburn v. Auld, 5 Cranch (U. S.), 279, 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 suoli 
 comparative speed, and changes of property and in places of business are s 
 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 hi* 
 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. V. 
 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 ha. I 
 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, hold not material, no injury to the purchaser being shown. 
 Wooding v. Grain, 10 Wash. 35; 38 Pac. Rep. 756. 
 
 "Smith v. Cansler, 83 Ky. 367. 
 
 "Merchants' Bank v. Thompson, 55 N. Y. 7. 
 
 Spaulding v. Fierle, SO Hun. 17, citing Merchants' Bank v. Thompson, .">." 
 N. Y. 7, and Schmidt v. Reed, 132 N. Y. 116; 30 N. E. Rep. 373, in neither of 
 which cases, however, docs it appear that an opportunity to resell had been 
 lost. 
 
 "Fry Sp. Perf. (3d Am. ed.) 5 1342. Dalby v. Pullen. 1 Kuss. 4 Myl. 296. 
 Meeks v. Garner, 93 Ala. 17; 8 So. Rep. 378: Hickson v. Linggold, 47 Ala.
 
 806 MARKETABLE TITLE TO REAL ESTATE. 
 
 course, cannot apply if the purchaser bought with knowledge that 
 the title was defective. 68 The exception will be 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. 69 But a mere innocent misrepresen- 
 tation of the title will not deprive the vendor of his right to perfect 
 the title. 70 And if the vendee waives the fraud by continuing in 
 possession and negotiating with the vendor, the latter may insist 
 upon perfecting the title. 71 It has been said that if there is great 
 inadequacy of consideration, the vendor will be strictly held to the 
 performance of the contract at the appointed time. 72 
 
 315. (6) Want of colorable title. The rule does not apply 
 \\here the vendor had no power whatever to sell. The vendor can- 
 not undertake to substitute the contract of a third person for his 
 own. 73 This exception will not, of course, apply where the vendor 
 
 449. Christian v. Cabell, 22 Gratt. (Va.) 82. Brown v. Haff, 5 Paige (N. Y.) , 
 241. Easton v. Montgomery, 90 Cal. 307; 27 Pac. Rep. 280. Moss v. Hanson, 
 17 Pa. St. 379. Blackmore v. Shelby, 8 Humph. (Tenn.) 439-; Woods v. 
 North, 6 Humph. (Tenn.) 309; 44 Am. Dec. 312. Green v. Chandler, 25 
 Tex. 160; Hall v. Clountz (Tex. Civ. App.), 63 S. VV. Rep. 941. Spencer v. 
 Sandusky, 46 W. Va. 582; 33 S. E. Rep. 221. Hays v. Tribble, 3 B. Mon. (Ky.) 
 106. But see Schiffer v. Dietz, 83 N. Y. 300, where a different view seems 
 to have been taken. 
 
 * Harris v. Carter, 3 Stew. (Ala.) 233; Teague v. Wade, 59 Ala. 369. 
 Reeves v. Dickey, 10 Gratt. (Va.) 138. The right to perfect the title will not 
 be conceded where the defect was known to the vendor and by him concealed 
 from the purchaser. Kenny v. Hoffman, 31 Gratt. (Va.) 442. 
 
 "Ante, 215. Alvarez v. Brannan, 7 Cal. 503; 68 Am. Dec. 275. Elliott v. 
 Blair, 6 Coldw. (Teun.) 185; Blackmore v Shelby, 8 Humph. (Tenn.) 438. 
 
 '"Buford v. Guthrie, 14 Bush (Ky.), 690. 
 
 T1 Schiffer v. Dietz, 83 N. Y. 300. 
 
 75 Seymour v. Delancey, 7 Paige (N. Y.), 445, 520, citing Kien v. Stukely, 2 
 Bro. P. C. 396. 
 
 73 2 Beach Mod. Eq. Jur. 612; Fry Sp. Perf. (3d Am. ed.) 1343. In re 
 Bryant, L. R., 44 Ch. Div. 218. "The vendor cannot say, ' I will substitute a 
 contract with somebody else,' " per KAY, J. In this case trustees under a will, 
 who had no power to sell until the death of a life tenant, offered to perfect 
 the title by procuring a contract to sell from the life tenant. The offer was 
 refused and a return of the deposit directed. This case must be distinguished 
 from Salisbury v. Hatcher, 2 Yo. & C. Ch. 54. where a tenant for life who 
 lu'.d sold the fee was permitted to perfect the title by getting the consent 
 of the parties in remainder. See, also, the remarks of Chief Justice MAR-
 
 OF THE EIGHT OF THE VENDOB TO PEBFECT THE TITLE. 807 
 
 is apparently the owner, or has a colorable title. 74 Nor where, at the 
 time of the sale, he had the equitable title, though he did not dis- 
 close to the purchaser the fact that the legal title was outstanding. 78 
 ^or where the title fails to a portion of the estate only. 7 ' Nor 
 where the vendor gets in the legal title, or procures the holder 
 thereof to join in a conveyance of the estate by the time fixed for 
 completing the contract. 77 It has been held that if the vendor 
 have only an equitable title he will not be entitled to time in which 
 to get in the legal title. The purchaser cannot be compelled to 
 await the termination of proceedings instituted for that purpose. 7 * 
 But of course, he may get in the legal title if he can at any time 
 
 SHALL in Garnett v. Macon, 6 Call (Va.), 308, 370. Pipkin v. James, 1 
 Humph. (Tenn.) 325; 34 Am. Dec. 652. Oliver v. Dix, 1 Dev. & Bat. Eq. 
 (N. C. ) 158. Where a husband contracted to sell in his own right property 
 belonging to his wife, specific pen'ormance at his suit was denied, even though 
 lie tendered a conveyance in which his wife joined. Luse v. Dietz, 46 Iowa, 
 205. Contra, Chrissman v. Partee, 38 Ark. 31. The fact -that the premises 
 have been sold for taxes is no objection to specific performance at the suit 
 of the vendor, if the right to redeem has not expired and the vendor offers 
 to redeem; such a case is not a speculation by the vendor in a third person's 
 title. Ley v. Huber, 3 Watts (Pa.), 367. In Wells v. Lewis, 4 Mete. (Ky.) 
 269, it was held that a title under a deed from a joint executor, invalid 
 because of failure of the other executor to join in the deed, could not be per- 
 fected without the purchaer's consent, by tendering to him a deed from one 
 entitled under the will to the proceeds of the sale of the land. 
 
 "Chamberlain v. Lee, 10 Sim. 444. 
 
 TS Prov. Loan & Tr. Co. v. Mclntosh, (Kans.) 75 Pac. Rep. 498. 
 
 7 * As in Dresel v. Jordan, 104 Mass. 407. 
 
 "Dresel v. Jordan, 104 Mass. 414, criticising Hurley v. Brown, 98 Mass. 
 547; 96 Am. Dec. 671. Logan v. Ball, 78 Ky. 607, in which case the legal 
 title was in the wife of the vendor, and a conveyance executed by both hus- 
 band and wife was tendered to the purchaser. But see Luse v. Deitz, 46 
 Towa, 205, supra, and Ft. Payne Coal & I. Co. v. Webster, (Mass.) 39 N. E. 
 Rep. 786, where held that if the vendor disable himself from performing the 
 contract by conveying the premises to a stranger, the purchase may, of course, 
 detain the purchase money. In Webber v. Stephenson, (Wash.) 39 I'ac. Rep. 
 052, it was held that a contract for the sale of land would not be rescinded 
 merely because, before the time fixed for its completion, the vendor had 
 conveyed the premises to a stranger, since he might still be able to perform 
 the contract by procuring the stranger to convey to the purchaser. If such 
 a conveyance were made after the time fixed for completing the contract. 
 there would seem to be no question as to the right of the purchaser to rescind. 
 
 "Dart. Vend. 70. Camp v. Morse, 5 Den. (N. Y.) 165. Jones v. Taylor, 
 7 Tex. 240; 56 Am. Dec. 48. Christian v. Cabell, 22 Grat. (Va.) 104.
 
 808 MARKETABLE TITLE TO REAL ESTATE. 
 
 / 
 
 before that fixed for completing the contract. 79 And if the pur- 
 chaser knew, at the time he purchased, that the legal title was 
 outstanding, and the contract provides that the vendor will cause 
 a good and sufficient deed to be made to him, the purchaser cannot 
 resist specific performance on the ground that the vendor has only 
 the equitable title. Such a case is not one in which the vendor, 
 acting mala fide, speculates in the property of a stranger. 80 The 
 rule that the vendor may perfect the title at any time before that 
 fixed for performance of the contract, does not apply where the 
 husband sells the community estate of himself and wife, because 
 the husband is, in those States in which such estate exists, pro- 
 hibited by statute from selling or disposing of the same. 81 But if 
 the purchaser buys in ignorance of the nature of the estate he will 
 not be permitted to rescind if the wife offers to join in the con- 
 veyance. 82 
 
 A provision in a contract of sale that the vendor shall be allowed 
 time in which to perfect the title, supposes that he has a colorable 
 title to the premises, and does not mean a reasonable time in \vhich 
 to purchase the estate when he has no pretensions to the title. 83 If 
 the vendor takes upon himself to contract for the sale of an estate, 
 and is not the absolute owner of it, and has not the power, by the 
 ordinary course of law or equity, to make himself so, a court of 
 equity will not compel specific performance by the purchaser, 
 though the actual owner offer to make the seller a title ; " for any 
 
 79 Beach Mod. Eq. Jur. 812; Tiernan v. Roland, 15 Pa. St. 429. Townshend 
 v. Goodfellow, 40 Minn. 312. 
 
 10 Scott v. Thorp, 4 Ed\v. Ch. (N. .Y.) 1. Burks v. Davies, 85 Cal. 110; 
 24 Pac. Rep. 613. Tison v. Smith, 8 Tex. 147. Hunt v. Stearns, 5 Wash. St. 
 167; 31 Pac. Rep. 468. 
 
 "Hooper v. Jackson, 3 Wash. Ty. 235: 3 Pac. Rep. 841; Hoover v. 
 Chambers, 3 Wash. Ty. 26; 13 Pac. Rep. 547. 
 
 * 2 Colcord v. Lddy, 4 Wash. St. 791 ; 31 Pac. Rep. 320. If the husband sells 
 the wife's land the purchaser cannot rescind if the wife ratifies the contract 
 and joins in a conveyance. Chrisman v. Partee, 38 Ark. 31 (Contra, Luse v. 
 Deitz, 46 Iowa, 205. Gage v. Cummings, 209 111. 120; 70 N. E. Rep. 679). 
 In a case in which the vendor, who was to convey with full covenants, acted 
 as agent for his mother without disclosing the fact, it was held that the 
 purchaser must accept a deed from the mother, with full covenants of title. 
 McDonald v. Bach, 60 N. Y. Supp. 557 ; 29 Misc. Rep. 96. 
 
 83 Benedict v. Williams, 39 Minn. 77 ; 38 N. W. Rep. 707. Primm v. Wise,. 
 126 Iowa, 528; 102 N. W. Rep. 427.
 
 OF THE BIGHT OF THE VENDOR TO PERFECT THE TITLE. 809 
 
 seller ought to be a bona fide contractor," and it would tend to 
 infinite mischief if an owner were permitted to speculate upon the 
 sale of another man's estate. 84 The rule that the vendor may, with 
 certain exceptions, perfect his title at any time before decree, can- 
 not be so construed as to compel the purchaser to accept a convey- 
 ance from a stranger. The purchaser has a right to the securities 
 afforded by the covenants of his vendor. 85 But if 'the purchaser 
 actually accept such conveyance, he cannot afterwards refuse to pay 
 the purchase money on the ground that the conveyance was not exe- 
 cuted by his vendor. 86 
 
 Inasmuch as it is clear that want of title in the vendor at the 
 time of the sale is no objection to specific performance if he be able 
 to procure the title by the time fixed for completing the contract, 
 no reason is perceived why the purchaser should not be compelled 
 to accept the conveyance of a stranger if the vendor joined therein 
 with such covenants for title as the purchaser could require, for this 
 is in substance the same as if the vendor had taken a conveyance to 
 himself, and thereupon immediately conveyed to the purchaser. It 
 has been held, however, in a case in which the vendor delivered his 
 own warranty deed and the warranty deed of a third person, who 
 held the legal title, to the purchaser, but it did not appear that there 
 had been a conveyance from such third person to the vendor, that 
 the purchaser was justified in rejecting the deed, and this upon the 
 
 "Tendring v. London, 2 Eq. Cas. Abr. 680. Burks v. Davis, 85 Cal. 110: 
 24 Pac. Rep. 613. 
 
 "Ante, 18. Reynolds v. Smith, 6 Bl. (Ind.) 200, the court saying: 
 " Such a title as the purchaser contracted for he had a right to demand, 
 secured by the covenants of the vendor, and free from blemish. The terms 
 of the contract would be essentially varied if a third person, without consent, 
 were substituted to do that which one of the contracting parties had bound 
 himself to perform." In re Head's Trustees, L. R., 45 Ch. Div. 310, the objec- 
 tion was made that an executorial trustee in that case had no authority under 
 the will to sell the testator's real estate for the payment of debts, and it was 
 held that the objection could not be removed by procuring the beneficiaries 
 of the estate to join in a conveyance by the executor after the time fixed 
 for completing the contract. 
 
 "Hamilton v. Hulett, (Minn.) 53 N. W. Rep. 364. Where the title was in 
 a minor, and the vendor procured and tendered a deed from him, and the pur- 
 chaser accepted such deed, it was held that the contract would not be 
 rescinded thereafter, upon the ground that the minor might dinffirm the 
 deed after coming of age, there being no claim of fraud or mistake in the case. 
 Dentler v. O'Brien, (Ark.) 19 S. W. Rep. 111.
 
 810 MARKETABLE TITLE TO REAL ESTATE. 
 
 ground that the record must show title in the grantor. 87 The rea- 
 sons for this decision are not clear. It is true that the purchaser 
 is entitled to insist that the title which he gets shall be evidenced as 
 the law requires, and, generally, in America, that the title shall 
 appear of record. But if he actually gets the record title, it would 
 seem immaterial from what source it comes, provided he has the 
 benefit of his Vendor's covenant of warranty. 
 
 Generally, it may be stated, that if a suit by the vendor at law or 
 in equity, other than to compel a conveyance of the legal title, 88 is 
 necessary to perfect his title, the purchaser cannot be compelled to 
 complete the contract. 89 It has been held that a subsequent sale and 
 conveyance of the premises by the vendor to a stranger is no ground 
 for rescission, where such second purchaser took with notice of 
 the prior purchaser's rights: 90 This decision deserves much con- 
 sideration. Should the first purchaser be put to the trouble and 
 expense of compelling specific performance at the hands of the 
 purchaser with notice ? 
 
 Specific performance of a contract by two to convey lands may 
 be decreed where the two are able to convey a complete title accord- 
 ing to contract, though neither could alone do so. 91 
 
 316. (7) Laches of vendor. The vendor cannot insist upon 
 his right to perfect the title after the time fixed for the completion 
 of the contract in a case in which he has shown great laches and 
 want of diligence in performing the terms of the contract on his 
 
 "George v. Conhaim, 38 Minn. 338; 37 X. W. Rep. 791. This decision was 
 really obiter, the court having overlooked the fact that there had been a con- 
 veyance of the legal title to the vendor. 
 
 "Andrew v. Babcock, (Conn.) 20 Atl. Rep. 715. 
 
 88 People v. Open Board, etc., 92 X. Y. 98. Eggers v. Busch, 154 111. 604; 
 39 N. E. Rep. 619. Reynolds v. Strong, 82 Hun (X. Y.), 202; 31 N. Y. Supp. 
 329. 
 
 "Hoock v. Bowman, 42 Neb. 87; 60 X. W. Rep. 391. Kreitsch v. Mertz, 119 
 Mich. 343; 78 X. W. Rep. 124. But see McCann v. Edwards, 6 B. Mon. (Ky.) 
 208, which was a suit to enjoin the collection of the purchase money, and in 
 which time was allowed a vendor to file a cross-bill, bringing before the court 
 certain persons, who, it was alleged, had an adverse interest in the premises. 
 And in Lyons v. Piatt, (X. J. Eq.) 26 Atl. Rep. 334, a vendor was allowed 
 forty-five days in which to perfect the title by suit to compel reformation of 
 a deed which was intended to convey a fee, but which, from want of words of 
 inheritance, conveyed only a life estate. 
 
 "Resnick v. Campbell, (X. J. Eq.) 59 Atl. 452.
 
 OP THE RIGHT OF THE VENDOR TO PERFECT THE TITLE. 811 
 
 part, or in bringing his suit for specific performance, or in prose- 
 cuting the suit after it has been instituted. 91 A party cannot call 
 upon a court of equity for this extraordinary relief " unless he has 
 shown himself ready, desirous, prompt and eager." 9 * But less dili- 
 gence is required .of the vendor in perfecting the title when the 
 purchaser is in possession than when he is not. The purchaser will 
 as a general rule be deemed to have waived his right to require a 
 strict performance on the part of the vendor at the time fixed for 
 completing the contract, if he take and retain possession of the 
 premises knowing that the title is imperfect. 94 
 
 317. (8) Effect of special agreement. The rule does not 
 apply, of course, in a case in which the contract expressly stipulates 
 that either party may rescind in case of non-performance at the 
 specified time ; or if such an intention can be fairly inferred from 
 the contract. In such a case the parties themselves have chosen to 
 make the time of performance material, and a court of equity has 
 no power to make a new contract for them. 93 Thus, where the 
 vendor agreed to make a good title " on demand," time in which to 
 perfect the title after demand was refused. 98 If the contract ex- 
 
 K Fry Sp. Perf. (3d Am. ed.) 1071. Watts v. Waddle, 6 Pet. (U. S.) 389. 
 Cotton v. Ward, 3 T. B. Mon. (Ky.) 304, 313. Welch v. Matthews, 98 Mass. 
 131. McAllister v. Harmon, 101 Va. 17 ; 42 S. E. Rep. 920. Muller v. Palmer, 
 144 Cal. 305; 77 Pac. Rep. 954. Harding v. Olsen, 177 111. 298; 52 N. E. Rep. 
 482. Black Hills Nat. Bank v. Kellogg, 4 S. Dak. 312; 56 N. W. Rep. 458. 
 In Kimball v. Bell, 49 Kans. 173; 30 Pac. Rep. 240, a delay of seven months 
 by the vendor in removing an incumbrance from the premises, after the pur- 
 chase money had been paid in full, was held unreasonable; and the purchaser 
 was permitted to recover back' the purchase money. Lyles v. Kirkpatrick, 9 
 S. C. 265, the delay in this case held not unreasonable. 
 
 "Per Lord ALVANLEY, M. R., in Milward v. Earl of Thanet, 5 Ves. 720, 
 note. 
 
 "Tompkins v. Hyatt, 28 N. Y. 347. 
 
 * 2 Beach Mod. Eq. Jur. 592. At one time it seems to have been the doc- 
 trine of the equity courts that time would not be deemed of the essence of 
 the contract no matter how clearly such an intention appeared from the con- 
 tract. Per Lord THURLOW in Gregson v. Riddle, cited in Seton v. Slade, 7 
 Yes. 268, by Sir SAMUEL ROMILI.Y arguendo. Gibson v. Patterson, 1 Atk. 12. 
 But the rule as stated in the text has been long established. 2 Story Eq. Jur. 
 780; Fry Sp. Perf. (3d Am. ed.) 1046: Bishp. Eq. (3d ed.) S 396. 
 Lowery v. Niccolls, 11 111. App. 450. 
 
 "'Goetz v. Walter, 34 Minn. 241; 25 N. W. Rep. 404. Where the vendor 
 agreed to convey a good title on demand after payment of a part of the pur-
 
 812 MARKETABLE TITLE TO REAL ESTATE. 
 
 pressly provides that the title shall be made good within a speci- 
 fied time, if it proves defective the vendor cannot claim the right to 
 perfect the title after the expiration of that time. 97 As a general 
 rule until the time fixed for completing the contract the purchaser 
 has a right to rely upon the unpaid purchase money as a fund with 
 which to remove incumbrances. But where the contract requires 
 the vendor to convey free of incumbrances, he must discharge 
 incumbrances before the time fixed for completing the contract. 
 He cannot impose upon the purchaser the burden of procuring 
 releases. 98 Of course the specification in the contract of a time at 
 which it is to be performed will not of itself make time material ;" 
 it must appear that the parties really intended to make such time 
 an essential element of their agreement; 1 "a material object to 
 which they looked in the first conception of it." 2 
 
 It has been held that the vendor cannot claim the right to cure 
 defects in the title if the contract provides that the purchase money 
 shall be refunded in case the title, upon examination, should prove 
 unsatisfactory to the purchaser. 3 Such an agreement, however, is 
 
 chase money and execution of securities for the balance, it was held that he 
 was entitled to a reasonable time in which to execute the deed after demand, 
 but not to time in which to perfect the title. In such case time was made 
 material by the contract, and it devolved upon the vendor to have a perfect 
 title when demand was made. Gregory v. Christian, 42 Minn. 304; 44 N. W. 
 Rep. 202. 
 
 97 Mackey v. Ames, 31 Minn. 103; 16 N. W. Rep. 541. The contract in this 
 case contained the following provision : " And it is agreed that if the title of 
 said premises is not good, and cannot be made good within sixty days from 
 date hereof, this agreement shall be void." Joslyn v. Schwend, 85 Minn. 130 ; 
 88 N. W. Rep. 410. 
 
 "Morange v. Morris, 42 N. Y. 48; Zorn v. McParland, 32 N. Y. Supp. 770. 
 
 M 2 Beach Mod. Eq. Jur. 592. 
 
 1 Language of GRAY, J., in Barnard v. Lee, 97 Mass. 94, citing Molloy v. 
 Egan, 7 Ir. Eq. 592. Jones v. Robbins, 29 Me. 351 ; 50 Am. Dec. 593. 
 
 2 Language of Lord ERSKINE in Hearne v. Tenant, 13 Ves. 289. In Toole v. 
 Toole, 22 Abb. N. Cas. (N. Y.) 392, specific performance at the suit of the 
 vendor was refused apparently upon no other ground than that he had not 
 perfected the title by the time fixed for the completion of the contract. There 
 is nothing in the case to show that time was material. 
 
 s Averett v. Lipscomb, 76 Va. 404; Watts v. Holland, 86 Va. 999; 11 S. E. 
 Rep. 1015. In a case in which a deed was deposited in escrow, with a 
 written agreement that the purchaser might abandon the sale if the title 
 should not be found by the depositary to be indefeasible, it was held that the 
 vendor had no right to perfect the title by procuring a release from a prior 
 purchaser of the premises. Fletcher v. Moore, 42 Mich. 577.
 
 OF THE EIGHT OF THE VENDOR TO PERFECT THE TITLE. 813 
 
 implied in every case in which time is of the essence of the contract, 
 and no good reason is perceived why the vendor should be denied 
 the right to perfect his title where time is not material, by a mere 
 expression of what is implied in the contract. If the purchaser 
 wishes to deprive the vendor of the right to perfect the title, he 
 may do so by providing that time shall be material. 4 
 
 318. (9) Effect of notice and request to perfect the title. 
 If the vendor has been guilty of gross, vexatious, unreasonable or 
 unnecessary delay in performing the contract on his part the pur- 
 chaser may by notice of a purpose to rescind in the alternative, 
 restrict him to a reasonable time within which to perfect the title. 5 
 And the vendor has the same right with respect to the payment 
 of the purchase money. 6 -But neither party can arbitrarily ter- 
 minate the rights of the other in this respect ; the notice must fix 
 a reasonable limit. 7 Thus, a notice by the purchaser, after negotia- 
 tions respecting the title had been going on for more than three 
 years, that he would rescind unless a marketable title were shown 
 within five weeks, was held unreasonable and ineffectual. 8 It is 
 not necessary, for the purposes of this exception, that the notice 
 should be in writing. 9 
 
 319. IN 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. 10 
 
 Mackey v. Ames, 31 Minn. 103; 16 N. W. Rep. 541. 
 
 Fry. Sp. Perf. (3d Am. ed.) 1062; 2 Ue.ich Mod. Eq. Jur. 592. 
 Prothro v. Smith, 6 Rich. Eq. (S. C.) 324. 
 
 Ante, exception 7. Hatch v. Cobb, 4 Johns. (N. Y.) 559. Jackson v. 
 Ligon, 3 Leigh (Va.), 161. 
 
 'Fry Sp. Perf. (3d. Am. od.) 1064, and cases there cited. 
 
 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. 
 
 10 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
 
 814 MAKKETABLE TITLE TO REAL ESTATE. 
 
 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 imless the vendor had perfected his title at the time 
 of trial, 11 he would be forced to seek his relief in equity by suit for 
 specific performance, or by injunction against the purchaser's pro- 
 ceedings at law. In either case, it is apprehended that a judgment 
 at law against the vendor would not be a bar to the proceeding 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. 12 But wherever the distinction between legal and equi- 
 table procedure has been swept away, it is apprehended 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. 13 or by the purchaser 
 
 T. Edwards, 6 B. Mon. (Ky.) 208. In Bell 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. Compton, 77 Wis. 584; 46 N. W. Rep. 889. 
 Goetz v. Waters, 34 Minn. 241; 25 N. 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.) 135, 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 suit to enjoin him from collecting 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. 584; 46 N. W 7 . Rep. 889. In an action by the 
 vendor to recover damages against the vendee for breach of his contract to 
 exchange lands with the plaintiff, the latter may offer in evidence a deed 
 curing a defect in his title, which was executed before the action was brought. 
 Burr v. Todd, 41 Pa. St. 206. 
 
 "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
 
 OF THE EIGHT OF THE VENDOR TO PERFECT THE TITLE. 813 
 
 to recover back what has been paid," or to recover damages for a 
 breach of the contract, 15 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, how- 
 ever, it has been held that if neither party, in an action for dam- 
 ages for breach of contract to convey free of incumbrances, asks 
 equitable relief, it will not avail the defendant that incumbranoes 
 were removed by him before the trial." 
 
 The collection of the purchase money will, of course, be sus- 
 pended while the title is being perfected." The vendor srets inter- 
 est on the purchase money, and the purchaser receives the rents 
 and profits. 18 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. 19 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. 20 
 
 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 fhe title, time in which 
 to remove them was refused. 
 
 "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 nrtion 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. 
 
 "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. 
 
 " Mott v. Ackerman, 92 N. Y. 539 ; Higgins v. Eagleton, 34 N. Y. Supp. 325. 
 
 "Jones v. Taylor, 7 Tex. 240; 50 Am. Dec. 48. 
 
 "2 Bisph. Eq. 392. Post, { 324. 
 
 "Post, 331. 
 
 "Stokes v. Acklen, (Tenn.) ; 46 S. W. Rep. 316. McElya v. Hill, 105 
 Tenn. 319; 59 S. W. Rep. 1025.
 
 816 MARKETABLE TITLE TO REAL ESTATE. 
 
 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. 21 It is said that the purchaser is 
 entitled to a reference, even though he knows of no objection to the 
 title. 22 But if it appear that the vendor, at the proper time, dis- 
 closed a good title, the purchaser must pay the costs of the inquiry. 23 
 The reference is a matter of right and may be directed without the 
 consent of the other party. 24 And it has been held error in the 
 court to refuse a reference when asked by either party. 28 
 
 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. 26 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 not 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. 27 
 
 "1 Sugd. Vend. (8th Am. ed.) 526; Fry Sp. Perf. (3d Am. ed.) 1280, 
 et seq. Jenkins v. Hiles, 6 Ves. 653; Cooper v. Deane, 1 Ves. Jr. 565. 
 McComb v. Wright, 4 Johns. Ch. (N. Y.) 659. Beverly v. Lawson, 3 Munf. 
 (Va.) 317. 
 
 * Jenkins v. Hiles, 6 Ves. 646. Middleton v. Selby, 19 W. Va. 167. 
 3 Lyle v. Earl of Yarborough, John. 701 
 
 * 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. 
 
 "Middleton v. Selby, 19 W. Va. 167. 
 
 * Fry Sp. Perf. (3d Am. ed.) 1339. 
 "Fry Sp. Perf. (3d Am. ed.) 858, 1287.
 
 OF THE RIGHT OF THE VENDOR TO PERFECT THE TITLE. 817 
 
 where the purchaser has waived all objections to the title." 
 Xor where the conditions of sale provide that the vendor shall not 
 be required to show a title. 29 The inquiry, if directed, will not be 
 extended to matters expressly excluded by the terras 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. 30 
 
 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, 81 as where the bill 
 and answer discloses that a title cannot be made. 32 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. 33 But if it do not appear from the pleadings 
 that a title cannot be made, it is error to decree a rescission of the 
 contract without directing a reference. 34 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 iu decreeing specific performance without referring the 
 title. 35 Generally it may be stated that the purchaser will not be 
 
 * Palmer v. Richardson, 3 Strobh. Eq. (S. C.) 10. Fry Sp. Perf. (3d 
 Am. ed.) 1300, 1305. As to what amounts to waiver of objections, see 
 ante, Ch. 8. 
 
 29 Hume v. Bentley, 5 De G. & Sm. 520. 
 
 "Corrall v. Cattell, 4 M. & W. 734. 
 
 "Fry Sp. Perf. (3d Am. ed.) 1280. Tillotson v. Gesner, 33 X. 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. Doniinick v. Michael, 4 Sandf. (X. Y.) 374. It "is not bound to 
 direct a reference in such a case. Psislay v. Martin, 5 Rich. Eq. (S. C.) 351. 
 Omerod v.-tlardmnn. 5 Ves. 722; Cooper v. Donne, 1 Ves. 565. 
 
 "2 Dan. Ch. Pr. 1215; Frost v. Brunson, Yerg. (Tenn.) 36. 
 
 "Jackson v. Ligon. 3 Leigh (Va.), 1(51. 
 
 M Frost v. Brunson, 6 Yerg. (Tenn.) 36. See, also, Middleton v. Selby, 
 19 W. Va. 167. 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. 
 
 52
 
 MARKETABLE TITLE TO REAL ESTATE. 
 
 entitled to a reference where the court is in possession of all the 
 facts affecting the title. 36 
 
 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 an- 
 swer, but before hearing, and (3) at the hearing. 37 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. 38 It further seems, however, 
 that the defendant, after a reference has been made, may file his 
 answer setting up any defense he pleases. 39 
 
 323. Procedure. Costs. Testimony as to all matters of fact 
 material to the title may be taken before the master. 40 In 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 be perfected. 41 It has been held, however,, 
 that a report merely stating that a good title could be made, was 
 sufficient. 42 If the report be in favor of the title, and no exceptions 
 thereto be filed, specific performance will, as a general rule, be 
 decreed at the hearing. If the report be against tho title, and 
 exception thereto be overruled, the suit will be dismissed. 43 It 
 
 "Goddin v. Vaughn, 14 Grat. (Va.) 102, 128; Thomas v. Davidson, 76 Va. 
 338. 
 
 "Fry Sp. Perf. (3d Am. ed.) 1323, 1324, et seq. Middleton v. Shelby, 
 19 W. Va. 175. 
 
 "Language of Lord ELDON in Morgan v. Shaw, 2 Mer. 138. 
 
 *** Emery v. Pickering, 1 3 Sim. 583. 
 
 * The American practice, where the title is referred, is indicated in the 
 following language of Chancellor KENT in McComb v. Wright, 4 Johns. Ch. 
 (N. Y.) GoO, 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." 
 
 "Fry Sp. Perf. (3d Am. ed.) 1346, 1348. 
 
 "Scott v. Sharp, 4 Edw. Ch. (N. Y.) 1. 
 
 "Dart Vend. (5th ed.) 1111; Fry Sp. Perf. (3d Am. ed.) 1354.
 
 OF THE EIGHT OF THE VENDOR TO PERFECT THE TITLE. 819 
 
 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. 44 If after confirmation 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. 45 
 
 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. 46 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. 47 Of course a party excepting to the mas- 
 ter's report must pay the costs of the exceptions if they be over- 
 ruled. 48 
 
 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, 49 especially if he be in the 
 actual possession and enjoyment of the estate. 50 But if he be justi- 
 fied in declining to take possession on the ground that there are 
 material objections to the title, he cannot be compelled to pay inter- 
 est. 51 Xor to incur the expense of " carrying " the property pend- 
 
 44 Curling v. Flight, 2 Ph. 616; Portman v. Mill, 1 Russ. & Myl. 696. 
 
 1 Sugd. Vend. (8th Am. ed.) 526; 2 Dan. Ch. Pr. 1218; Fry Sp. Pcrf. 
 (3d Am. ed.) 1351. Jendvine v. Alcoek, 1 Mad. 597. 
 
 "Green v. Chandler, 25 Tex. 148. 
 
 "Phillipson v. Gibbon, L. R., 6 Ch. 434. 
 
 "Scott v. Thorp, 4 Edw. Ch. (N. Y.) 1. 
 
 "2 Sugd. Vend. (8th Am. ed.) 314 (627); 1 Warvelle Vend. 188. Tn 
 Haffey 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 un- 
 paid purchase money and interest thereon from the day of sale, together with 
 taxes and assessments levied since the day of sale. 
 
 '"Oliver v. Hallan, 1 Grat. (Va.) 298. "If this rule be not universal, the 
 party who claims an exemption from its operation must bring himself witliin 
 some established exception." Brockenbrough v. Blyth, 3 Leigh (Va.). 010, 
 (47. A purchaser must pay interest on a sum reserved in his hands a* 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. 
 
 *'2 Sugd. Vend. (8th Am. ed.) 318 (G30K citing Forteblow v. Shirley. 2 
 Swan 223; Carrodus v. Sharp. 20 Beav. 5fi. Luckett v. Williamson, 37 Mo.
 
 820 MARKETABLE TITLE TO REAL ESTATE. 
 
 ing the adjustment of a dispute as to his obligation to take the ti- 
 tle. 52 And, where a purchaser, finding that the title was defective, 
 offered to rescind the contract and return the premises to the ven- 
 dor, and the offer was refused, it was held that he could not there- 
 after be required to pay interest, even though he was in possession 
 of the estate. 53 But, as a general rule, the act of taking possession 
 is an implied agreement to pay interest, 54 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. 55 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 con- 
 tract shall pay interest from the time of taking possession. 56 It 
 seems that if there be material and valid objections to the title, and 
 the purchaser be obliged to keep his money idle and unproductive 
 in daily expectation of a perfected title, he will be relieved from 
 the payment of interest, even though in possession, 57 provided the 
 
 388, 395, obiter. Kennedy v. Koopman, 166 Mo. 87; 65 S. W. Rep. 1020; 
 Faile v. Crawford, 52 N. Y. Supp. 353; 30 App. Div. 536. It has been held 
 that if the objection is that the title is doubtful only and not absolutely bad, 
 the purchaser cannot refuse to pay interest on the purchase money. Sohier 
 v. Williams, 2 Cur. (C. C.) 195, 199. But see Kester v. Rockel, 2 Watta 
 & S. (Pa.) 365, 371. In Selden v. James, 6 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 pos- 
 session of the estate. This was a case in which the contract had been exe- 
 cuted by a conveyance. See, also, Breckenridge v. Hoke, 4 Bibb (Ky.), 272. 
 
 "Steiner v. Presb. Ch., 45 N. Y. Supp. 524; 17 App. Div. 500. 
 
 "Rutledge v. Smith, 1 McCord Ch. (S. C.) 402. 
 
 "Fludyer v. Cocker, 12 Ves. 25. 
 
 "Powell v. Matyr, 8 Ves. 146. 
 
 M 2 Sugd. Vend. (8th Am. ed.) 317 (629). Comer v. Walker, Rey. lib. A, 
 1784, fol. 625, where the purchaser had been in possesison 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. 
 
 "2 Sugd. Vend. (8th Am. ed.) 315 (628). Jenkins v. Fahey, 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
 
 OF THE EIGHT OF THE VENDOR TO PERFECT THE TITLE. 821 
 
 vendor were notified that the purchase money was Iving dead. 5 * In 
 such a case the purchaser takes the rents and profits in satisfaction 
 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. 59 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. 60 But this principle has, of course, no 
 appplication 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. 61 
 
 the vendor to prove. Hunter v. Bales, 24 Ind. 204, 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 he required to pay interest 
 pending the suit, though it was agreed lhat improvements should be at the risk 
 of the purchaser if the title should be attacked. \Yightman 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. Ilouser, 3 Pa. St. 430. 
 
 "Powell v. Matyr, 8 Yes. 140, where it \vas said by the master of the roll-* 
 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 circumstance that 
 the vendor was not ready to complete the title at the day will van" the rule. 
 The purchaser must state something more than mere delay, viz.. that he hn< 
 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 th" 
 vendor that the purchaser has placed himself in that situation, his money un- 
 productive and to wait the event, otherwise there is no equality. The one 
 knows that the estate produces rent, the other does not know that the money 
 does not produce interest. Wherever, therefore, 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. also. Rutledge v. Smith, 1 Mi-Tord Ch. 
 (S. C.) 403. Brockenbrough v. Blythe. 3 Leigh (Ya.). f.in. 
 
 54 1 Sugd. Ven. (8th Am. ed.) 12 (S). Dow son 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 
 
 1 1 Sugd. Vend. (8th Am. ed.) 572 (312) ; Adams Eq. 210; Bish. 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 Edw. 
 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. 570. 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. 
 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 Ves. 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 purported 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 incumbrance incapable of 
 removal without the consent of the incumbrancer. Gans v. Renshaw, 2 Barr 
 (Pa.), 34; 44 Am. Dec. 152. The existence of a highway on the land at best 
 only entitles the purchaser to a reduction of the purchase money by the
 
 EIGHT OF THE VENDOE COMPENSATION FOR DEFECTS. 823 
 
 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 indepensable to the 
 intended purposes of the wholf 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 en- 
 joyment 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 L title cannot be made is material to 
 the possession and enjoyment of the rest of the estate. 6 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. 6 
 
 As a general rule, an acknowledged and undisputed charge or 
 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- 
 
 a mount that such highway reduces the value of the tract. Beach v. Hudson 
 R. Land Co., 65 N. J. Eq. 426 ; 56 Atl. 157. 
 
 "Coffee v. Newson, 2 Ga. 442. But see, post, this chapter, exception 6, 
 15 326. 
 
 'Key v. Jennings, 66 Mo. 356. 
 
 ' 1 Rugd. Vend. 478. 
 
 1 Sugd. Vend. (8th Am. ed.) 477. 
 
 Winne v. Reynolds, 6 Paige (N. Y.), 407.
 
 824 MABKETABLE TITLE TO REAL ESTATE. 
 
 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 purchaser 
 assumed the payment of the incumbrance as part of the considera- 
 tion 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, impo- 
 sition 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 , 
 
 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- 
 
 7 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. 
 
 'Hinckley v. Smith, 51 N. Y. 21. 
 
 Harris v. Granger, 4 B. Mon. (Ky.) 369. 
 
 14 Kuhn v. Freeman, 15 Kans. 423. 
 
 "Winne v. Reynolds, 6 Paige (N. Y.), 407. 
 
 "Hancock v. Bramlett, 85 N. C. 393. 
 
 "Kimmel v. Scott, (Neb.) 52 N. W. Rep. 371.
 
 BIGHT OF THE VENDOR COMPENSATION FOR DEFECTS. 825 
 
 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 complete 
 the contract with compensation. Where, however, the vendor sold 
 2,000 acres and included in his conveyance 39 acres to which he 
 had 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." 
 
 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." 
 
 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 bo required 
 to accept the property with indemnity against eviction. 18 (2) The 
 
 "Dart Vend. & P. (5th ed.) 134. Whitemore v. Whitemore, L. R., 8 Eq. 
 603. The eases in which the common condition of sale requiring the pur- 
 chaser to tako the property with compensation for defects do not apply have 
 been thus classified by Mr. Dart (V. & P. [5th ed.] 138) : 1. Where the prop- 
 erty is not of the same description as it appears to be 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 prop- 
 erty. 5. Where the misdescription as to quantity is so serious that it is no 
 longer a fit subject for compensation. 0. Where the misdescription is of such 
 a nature that the amount of the compensation cannot be estimated. 
 
 "Ante, 170. 
 
 'Stockton v. Union Oil Co., 4 W. Va. 73. 
 
 " 1 Sugd. Vend. (8th Am. ed.) 417 (314). Shaw v. Vincent, 64 X. C. 690. 
 
 u l 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. K. 070.
 
 826 MAEKETABLE TITLE TO REAL ESTATE. 
 
 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. 19 This exception does not apply where the purchase 
 is of several lots at auction, and the titles to some are bad. 20 The 
 purchaser must take a conveyance of those to which the title is 
 good, unless the lots to which the title is bad are necessary to the 
 enjoyment of the rest. 21 If a person purchases at an auction sev- 
 eral 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 distinct contract, 
 and the inability of the vendor to make title or perform the con- 
 
 19 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:f 
 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. (Itid.) 146; Johnson v. Houghton, 19 Ind. 359. Rector v. 
 Price, 1 Mo. 373. Christian v. Stanley, 23 Ga. 26. Yoke v. Gregg, 9 Tex. 85. 
 Ankeny v. Clark, 138 U. S. 345. 
 
 20 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. (N. 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 dis- 
 tinct 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 com- 
 plete 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 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. & I. Co.. (N. J. Eq.) 55 Atl. 117. 
 
 Z1 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. & Ad. 77; Seaton v. Booth, 4 Ad. & El. 528.
 
 BIGHT OF THE VENDOB COMPENSATION FOB DEFECTS. 827 
 
 tract as to one of the parcels will not relieve the purchaser from 
 his obligation to pay the purchase price and accept a conveyance 
 of the other parcels. 22 (3) The purchaser cannot be required to 
 complete the contract with compensation or abatement of the pur- 
 chase money if the title has failed to a considerable portion of the 
 property, 23 or to a part which is indispensable to the due enjoyment 
 and intended purposes of the residue. 24 But a failure of title to 
 an inconsiderable or dispensable portion of the property, 28 or the 
 existence of a trifling charge or incumbrance upon the premises,** 
 
 a Wells*v. Day, 124 Mass. 38. 
 
 a 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. Burwell v. Sollock, (Tex. Civ. App.) 32 S. W. Rop. 844. 
 Newman v. Maclin, 5 Hayw. (Tenn.) 241: Roed 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. Brast, 34 
 W. Va. 332; 12 S. E. Rep. 710, the purchaser was compelled to accept title 
 with compensation for a deficiency of 20 acres 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. Eversole v. Eversole, 27 Ky. 
 Law Rep. 385; 85 S. W. Rep. 186; Davis v. Watson, 89 Mo. App. 15. 
 
 24 Authorities cited. Ante, p. 822, 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 rest by a public road. A familiar illustration 
 of this exception is the case in which a wharfinger bought a 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 Md. 532, where a purchase of 
 twenty acres was made in order to get possession 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 compensation. 1 Sugd. Vend. 478. Perkins v. Ede, 
 16 Beav. 193. 
 
 *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. 
 
 24 Fry Sp. Perf. (3d Am. ed.) 1188, 1196. In Guynet v. Mantel, 4 Duer 
 (N. 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
 
 828 MARKETABLE TITLE TO REAL ESTATE. 
 
 is no ground for refusing specific performance with compensation. 
 Compensation cannot be decreed if there be no accurate and certain 
 means of determining the amount of compensation to be allowed,* 7 
 such for example as in the case of a building restriction binding 
 the purchaser, or a restriction as to the uses to which the premises 
 shall be put. 18 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 compensation, and the purchaser was excused from perform- 
 ing the contract. On the other hand, a deficiency of fourteen 
 inches in a frontage of seventy-five feet was held a case for com- 
 pensation and not for rescission, the fourteen inches not being 
 indispensable to the due enjoyment and intended use of the prem- 
 ises." Obviously, the question whether the purchaser must take 
 the title with compensation, or may rescind the contract, depends 
 upon the circumstances of each particular case. Specific perform- 
 ance is a matter of grace, and will neither be enforced in one case 
 
 allowance for the incumbrance, was decreed. A deficiency of twenty-one acres 
 of land in a tract cf 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 T. Gunther, 10 X. Y. Supp. (X. 
 Y.) 734, 
 
 "In Evans T. 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, f 190. 
 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. 
 
 * Adams v. Valentine. 33 Fed. Rep. 1 (X. Y.). 
 
 "Smitbers v. Steiner, 34 X. Y. Supp. 678. See, also, the following en- 
 croachment cases, in which the purchaser was excused: McPherson v. Schade. 
 28 X. Y. Supp. 659; 8 Misc. Rep. 424, one and one-half inches: Smith v. 
 McCool, 22 Hun (X. Y.), 595, five inches; Arnstein v. Burroughs, 27 X. Y. 
 Supp. 958, two inches: Bowie v. Brahe, 4 Duer (X. Y.). 676. one and seven- 
 eighths inches. See, also. King v. Knapp. 59 X. Y. 462; Stokes v. Johnson. 
 57 X. Y. 673; Webster v. Trust Co.. 145 X. Y. 275; 39 X. E. Rep. 964. 
 
 "Kelly v. Brower, 7 X. Y. Snpp. 752.
 
 EIGHT OF THE VENDOB COMPENSATION FOR DEFECTS. 829 
 
 nor denied in another unless equity and good conscience so re- 
 quires. It is incumbent upon the purchaser to show that Ihe part 
 to which title has failed was material to the proper use and enjoy- 
 ment of the rest, or formed a special inducement to the purchase. 31 
 (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 bo compelled to accept a lesser estate 
 as a copyhold or a leasehold. 32 
 
 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. 33 (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. 34 In some cases, however, the purchaser 
 has been compelled to take a different interest from that which 
 the vendor undertook to sell. 35 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. 36 (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. 37 (7) If the vendor 
 turns the purchaser out of possession, he thereby rescinds the con- 
 tract and cannot afterwards require a specific performance with 
 compensation for defects. 38 
 
 "Keating v. Price, 58 Md. 532. 
 
 18 1 Sugd. Vend. (8th Am. ed.) 461. 
 
 M Wold v. Newgaard, 123 Iowa, 233; 98 N. W. Rep. 640. 
 
 M l Sugd. Vend. (8th Am. ed.) 480 (316). 
 
 "Id. 457 (299). 
 
 S M Sugd. Vend. (8th Am. ed.) 480; 1 Story Eq. Jur. 778. Atty.-Gn. v. 
 Day, 1 Ves. 218. 
 
 "Fry Sp. Perf. (3d Am. ed.) 1192. Harris v. Granger, 4 B. Mon. (Ky.) 
 3(59. Isaacs v. Skrainka, 95 Mo. 517; 8 S. W. Rep. 427. But see Coffee T. 
 Xewsom, 2 Oa. 442, a case apparently at variance with the foregoing authori- 
 ties. 
 
 38 1 Sugd. Vend. (8th Am. ed.) 523; Fry Sp. Perf. (3d Am. ed.) 1193. 
 Knntchbull v. Orueber, 1 Ves. Jr. 224.
 
 830 MARKETABLE TITLE TO REAL ESTATE. 
 
 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. 39 An apparent exception to the 
 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. 40 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. 
 
 39 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; Patten v. Brabner, 1 Bligh. 42, 
 C6; Ridgway v. Gray, 1 Mac. & G. 109; Powell v. So. Wales R. Co., 1 Jur. 
 (N. S.) 773. Bryan v. Read, 1 Dev. & Bat. Eq. (N. C.) 78, 86. Wilson v. 
 Zajicek, (Tex. Civ. App.) 36 S. W. Rep. 1080. Barickman v. Kuykendall. t 
 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 N. 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 ex- 
 citement of a " boom " in city property, but finding a mortgage on the prem- 
 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 
 <he 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. 
 
 40 Ante, 199-. Young v. Paul, 10 N. J. Eq. 415; 64 Am. Dec. 456. In Jack- 
 son 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 New 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, this is a case in which the pur- 
 chaser is compelled to take the title with an abatement of the purchase money, 
 and not a mere indemnity.
 
 BIGHT OF THE VENDOR COMPENSATION FOR DEFECTS. 831 
 
 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. 41 Of course, if the contract provide for 
 indemnity it may be required. 42 
 
 41 Ante, 199. Peters v. Delaplaine, 49 N. Y. 362. Trimmer v. Gorman, 129 
 N. C. 161 ; 39 S. E. Rep. 804. See, also, Prescott v. Trueman, 4 Mass. 629; 3 Am. 
 Dec. 249; Shearer v. Ranger, 22 Pick. (Mass.) 447. Smith v. Cornell, 32 Me. 126. 
 Holmes v. Holmes, 12 Barb. (N. 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. 
 
 "Aylett v. Ashton, 1 Myl. A Cr. 105; Ridgway v. Gray, 1 Mac. A G. 109; 
 Milligan v. Cooke, 16 Ves. 1; Walker v. Barnes, 3 Mad. 247 (13?) ; Pateruon 
 v. Long, 6 Beav. 598 ; Ross v. Boards, 8 Ad. & El. 290.
 
 RESCISSION BY PROCEEDINGS IN EQUITY WHERE THE 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 invoked, 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, of 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.
 
 EEMEDT BY INJUNCTION COLLECTION OF PUBCHASE MONET. 833 
 
 taken; consequently there being no wrong there is no remedy. 
 After a breach of these covenants has occurred, the remedy is am- 
 ple and complete. But with respect to the covenants of seisin and 
 against incumbrances 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 
 the defendant should remove an incumbrance from the land ; 3 and, 
 
 1 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 cove- 
 nant 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 damages; and 
 that the remedy at law upon the covenant of warranty is incomplete 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 T. 
 Goodrich, 5 Heisk. (Tenn.) 20; Leird v. Abernethy, 10 Heisk. (Tenn.) 636. 
 Roger 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, so 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 remedy. It is true that in such a case 
 there may be room for the " quia timet " 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.) 826. The foregoing observations, ao far as they relate 
 to the covenant of seisin, appear to be in accord with the opinion of Mr. Rawle 
 
 (Covts. for Title [5th ed.], 378). 
 Post, 332. 
 
 53
 
 834 MARKETABLE TITLE TO SEAL ESTATE. 
 
 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 proceedings 
 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. W T here there is no present right to recover substantial damages 
 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 po 
 covenants for title. 6 The same rule applies in a case of mistake 
 as to the premises sold and conveyed. 7 And inasmuch as a court 
 
 * Jackson v. Norton, 6 Cal. 187; 5 Cal. 262. This is the rule in Virginia, 
 e v cept that no reconveyance of the premises is required and no importance 
 seems to h?ve been given to the solvency of the covenantor as respects the 
 right to the injunction. Post, 337. 
 
 "High on Injunctions (3d ed.) : 289; Rawle Covts. (5th ed.) 372. Fitch 
 v. Polke, 7 Bl. (Ind.) 565; Heed v. Tioga Mfg. Co., 66 Ind. 21. 
 
 In Houston v. Hurley, 2 Del. Cn. 2*8. the purchaser, through the fraudu- 
 lent representations of the vendor, had accepted a conveyance without cove- 
 nants for title, and was permitted to enjoin proceeding; to collect the purchase 
 money, until the vendor should perfect the title. 
 
 '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 *h/
 
 BEMEDY BY INJUNCTION COLLECTION OF PTJBCHASE MONEY. 835 
 
 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 
 
 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- 
 
 vendor, but to which he had no title, and which were not included in the con- 
 veyance. 
 
 ' Barkhamstead v. Case, 5 Conn. 528; 13 Am. Dec. 92; Moore v. Ellsworth, 
 3 Conn. 403. 
 
 Ransom v. Shuler, 8 Ired. Eq. (N. 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 is, 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 has failed) as a security in his own hands against the loss im- 
 pending over him." Compare dictum in Hammatt v. Emerson, 27 Me. 309. 
 
 10 Johnson v. Jones, IS Sm. & M. (Miss.) 580; Thomas v. Phillips, 4 Sm. & 
 M. (Mies.) 358. Cf. Allen v. Hopson, 1 Freem. Ch. (Miss.) 276.
 
 836 MARKETABLE TITLE TO EEAL ESTATE. 
 
 tunity to defend at law. If the application for an injunction' be 
 made before judgment and the bill show 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 of 
 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, 
 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, 
 
 "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. 
 
 "Nelms v. Prewitt, 37 Ala. 389; Wray v. Furniss, 27 Ala. 471. Shipp Y. 
 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 Am. 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 imma- 
 terial 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 in- 
 solvent 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.
 
 EEMEDY BY INJUNCTION COLLECTION OP PUECHASE MONEY. 837 
 
 either to collect his judgment or to enforce such security. 11 So, 
 also, where at the time of the judgment the covenantee was ig- 
 norant of the facts which would have constitued 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 
 ahows that for some reason his legal remedy on the covenants for 
 title will be unavailing. 15 
 
 331. INSOLVENCY OB NON-RESIDENCE OF THE GRANTOR. 
 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. 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, j udgment 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 
 requires any compensation or other relief." 1 Accordingly, in 
 many cases, injunctions against proceedings to collect the pur- 
 chase money have been granted upon allegations of the actual 
 
 " Kingsbury v. Milner, 69 Ala. 502. Luckett v. Triplett, 2 B. Mon. ( Ky. ) 
 39. Coster v. Monroe Mfg. Co., 1 Gr. Ch. (N. J.) 476. 
 
 "Fitch v. Polke, 7 Bl. (Ind.) 565, the court saying: "We are satisfied that 
 this is a proper case for the interference of a court of equity. It appears 
 that the complainant was 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 title until after the rendition of the judgment at law. This excuse 
 for not defending at law was sufficient to authorize the interference of a court 
 of equity." Citing Williams v. Lee, 3 Atk. 223. Simpson v. Hart, 1 Johns. 
 Ch. (N. Y.) 98. 
 
 "Haggin v. Oliver, 5 J. J. M. (Ky.) 237. 
 
 "Ante, 144. 
 
 "2 Story Eq. (13th ed.) 826.
 
 838 MARKETABLE TITLE TO REAL ESTATE. 
 
 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 
 
 18 High on Injunctions (3d ed.), 400; Rawle 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 New 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 [ranted where the covenantee has not been disturbed in his pos- 
 session 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. Mc- 
 Carty, 3 Edw. Ch. (N. Y.) 126, obiter; Edwards v. Bodine, 26 Wend. (N. 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. (N. J.) 467; Jaques v. Esler, 3 Gr. Ch. (N. J.) 462; 
 Hile v. Davison, 5 C. E. Gr. (N. J.) 228. Fehrle v. Turner, 77 Ind. 530, over- 
 ruling Strong v. Downing, 34 Ind. 300. 
 
 19 Harding v. Commercial Loan Co., 84 111. 251, 260, obiter. 
 
 "Warvelle on Vendors, 937; Rawle Covts. (5th ed.) 380. Waltou v. Bon- 
 ham, 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 waa 
 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. Ldde, 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. 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; Sin-pson v. Hawkins, 3 Dana (Ky.), 303. It was held that insol- 
 vency wag no ground for the injunction unless the covenantee filed his bill 
 quid timet, requiring all persons having adverse interests to assert or re- 
 linquish the same. Jones v. Waggoner, 7 J. J. Marsh. (Ky.) 144; Hatcher 
 v. Andrews, 5 Bush (Ky.), 662. Johnson v. Wilson, 77 Mo. 639 1 . 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. Avery, 2 Barb. Ch. (N. Y.) 582; Woodruff v. Bunce, 9 Paige
 
 KEMEDY BY INJUNCTION COLLECTION OF PURCHASE MONEY. 839 
 
 in damages for a breach 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- 
 
 (N. Y.) Ch. 443; 38 Am. Dec. 559. Young v. Butler, 1 Head (Tenn.), 640; 
 Ingram v. Morgan, 4 Humph. (Tenn.-) 66; 40 Am. Dec. 626; Barnett v. Clark, 
 5 Sneed (Tenn.), 436; Baird v. Goodrich, 5 Heisk. (Tenn.) 24; Merriman v. 
 Norman, 9 Heisk. (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.) 598; 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, C37. In Patton 
 v. Taylor, 7 How. (U. S.) 132, the insolvency of the covenantee was held no 
 ground for an injunction against the collection of the purchase money. Little 
 consideration appears to have been given the question, and the authorities 
 cited merely decide that a covenantee who has not been disturbed in his pos- 
 session, cannot resist the payment of the purchase money on the ground that 
 the title is defective. The 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, a* 
 follows : " It is too late now in this court to question the doctrine, that where 
 
 "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. Hense, 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 
 oovenantee 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. (N. 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. (N. C.) 258, 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 se- 
 curity 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 Minnesota the mere non- 
 residence of the covenantor has been held insufficient to take a case out of the 
 rule that the covenantee cannot on failure of the title rescind the contract and 
 recover back the purchase money. Miller v. Miller, 47 Minn. 546; 50 N. W. 
 Rep. 612.
 
 840 MARKETABLE TITLE TO BEAL ESTATE. 
 
 tion. 12 Upon a principle similar to that on which a court of equity 
 enjoins the collection of the purchase money by an insolvent cove- 
 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 parity. 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- 
 
 a vendee has received a conveyance with warranty, and been let into posses- 
 sior, lit 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 hi 
 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 sus- 
 tains every injunction quia timet. . . . It is said (quoting from th 
 opinion of Judge UNDEBWOOD), '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 acts upon no undivulged or 
 imtranspired event. He restrains the collection of the purchase money because 
 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 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 convey- 
 ance had not been executed. A perpetual injunction, or at least for so long 
 as the purchaser is in danger, is what his case requires, and all that it re- 
 quires. 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. 
 
 M Hoppes v. Cheek, 21 Ark. 585. If the grantee be constructively evicted by 
 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. 
 
 a McDunn v. Des Moines, 34 Iowa, 467.
 
 XEMEDY BY INJUNCTION COLLECTION OF PURCHASE MONEY. 841 
 
 joyment of the rest, there is no ground for an injunction and a 
 rescission of the contract in toto, but the covenantee is entitled to 
 an abatement of the purchase money pro tanto,** or to compensa- 
 tion for the portion lost. 26 
 
 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 for 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 
 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 
 
 24 Simpson v. Hawkins, 1 Dana (Ky.), 303. 
 
 "Key v. Jennings, 66 Mo. 356. In Withers v. Morell, 3 Edw. Ch. (N. Y.) 
 560, 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, but 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.), 303. Woodruff v. Bunce, 9 Paige Ch. (N. Y.) 443; 38 Am. Dec. 
 559; Hoag v. Rathbun, Clarke Ch. (N. 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, however, 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- 
 sufficient. Boyer v. Porter, 1 Overt. (Tenn.) 258; Moredock v. Williams, 1 
 Overt. (Tenn.) 325; Moore 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. Grantland v. Wight. 
 5 Munf. (Va.) 295. 
 
 "Rawle Covts. (5th ed.) 381, citing Worthington v. Curd, 22 Ark. 284; 
 Wiley v. Fitzpatrick, 3 J. J. Marsh. (Ky.) 583. In the last case it appears, 
 however, that the injunction was granted, the covenatnor being practically 
 insolvent and a non-resident, though no suit was being prosecuted by the ad- 
 verse claimant. 
 
 M 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
 
 842 MARKETABLE TITLE TO EEAL ESTATE. 
 
 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- 
 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- 
 peared 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 
 
 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 compensation 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 pur- 
 chaser having been decreed, he was considered to occupy the position 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. 
 
 "Anon., 1 Vern. 120; 1 Madd. Ch. 132. Warwick v. Nowell, 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. 
 
 * 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.
 
 REMEDY BY INJUNCTION COLLECTION OF PUBCHASE MONEY. 843 
 
 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, in- 
 junctions against proceedings to collect the purchase money have 
 been granted where an incumbrance on the premises exists, ap- 
 parently 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 be- 
 tween defects of title and incumbrances. The former may never 
 be asserted, while the enforcement of securities for the payment 
 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 
 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 
 
 "Buell v. Tate, 7 Bl. (Ind.) 55; Addleman v. Mormon, 7 Bl. (Ind.) 32, 
 where it was held that a suit to enjoin collection of the purchase money until 
 the covenantee should remove the incumbrance on the premises was in affirm- 
 ance of the contract, and that consequently the suit could be maintained with- 
 out tendering a reconveyance of the land, or offering to account for rents and 
 profits. Arnold v. Carl, 18 Ind. 339; Ricker v. Pratt, 48 Ind. 73. Hoke v. Jones, 
 33 W. Va. 501, obiter. Dayton v. Dusenbury, 25 N. J. Eq. 110, where there 
 were unsatisfied judgments binding the premises; Union Nat. Bank v. Pinner, 
 25 N. J. Eq. 495, tax liens; Stiger v. Bacon, 29 N. J. Eq. 442, prior mortgage; 
 White v. Stretch, 7 C. E. Gr. 76, sewer assessment; Woodruff v. Depue, 14 
 N. J. Eq. 168, 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 been a breach 
 of the covenant against incumbrances is restricted to cases in which it appears 
 that the covenantee is insolvent. McLemore v. Mabson, 20 Ala. 127. citing 
 Parks v. Brooks, 16 Ala. 529; Cullum v. Branch Bank, 4 Ala. 21; 37 Am. Dec. 
 725. So, also, in Mississippi: Wofford v. Ashcrnft, 47 Miss. 641. 
 
 "Champlin v. Dotson, 13 Sin. & 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. Refer- 
 ence to that section, however, shows that the rule is limited to cases in which 
 the purchaser bought with notice of the incumbrance.
 
 844 MARKETABLE TITLE TO REAL ESTATE. 
 
 defense at law, but he will be allowed only the amount actually 
 paid by him to remove the incumbrance. He cannot buy in in- 
 cumbrances 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 cove- 
 nant 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 reconveyance and 
 deprive the vendor of the right to perfect the title. 34 Neither is 
 delay in removing the incumbrance ground for rescinding the con- 
 tract, 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 re- 
 sisting 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/ 6 
 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 al- 
 
 "Champlin v. Dotson, 13 Sm. & M. (Miss.) 553 1 53 Am. Dec. 102. 
 
 84 Oldfield v. Stevenson, 1 Ind. 153. 
 
 ^Egan v. Yeaman, (Tenn.) 46 S. W. Rep. 1012. 
 
 ** 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. 
 Ann. 173, it was held that the vendor might be enjoined from enforcing a 
 purchase-money mortgage until he had complied with his agreement to fur- 
 nish a perfect title. The civil law leans greatly to the side of the purchaser 
 on failure of title, and does not carry, perhaps, to its full extent, the rule that 
 special agreements respecting the title are merged in the conveyance.
 
 EEMEDY BY INJUNCTION COLLECTION OF PUBCHASE MONEY. 845 
 
 ready paid." 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. 88 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 
 incumbrances, 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 
 exceeding 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 
 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. 48 The 
 very fact that the conveyance was without covenants should raise, 
 
 "Ante, 261. 
 
 " Kingsbury v. Milner, 69 Ala. 502. 
 
 "Ante, 184. Coffman v. Scoville, 86 111. 335. Dayton v. Dusenbury, 25 
 N. J. Eq. 110; Union Bank v. Pinner, 25 N. J. Eq. 495; Stiger v. Bacon, 29 
 N. J. Eq. 442. Bennett v. Pierce, 50 W. Va. 604 ; 40 S. E. 395. 
 
 40 Stokes v. Acklen, (Tenn.) 46 S. W. Rep. 316; McElya v. Hill, 105 Tenn. 
 319; 59 S. W. Rep. 1025; Renner v. Marshall, (Tenn. Ch. App.) 58 S. W. 
 Rep. 863. 
 
 41 Bennett v. Pierce, 50 W. Va. 604 ; 40 S. E. Rep. 395. 
 
 "Ante, 267. Banks v. Walker, 2 Sandf. Ch. (N. Y.) 344. Sutton T. 
 Sutton, 7 Grat. (Va.) 234; 56 Am. Dec. 109; Price r. Ayres, 10 Grat. (Va.) 
 575. 
 
 44
 
 MARKETABLE TITLE TO EEAL ESTATE. 
 
 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. 
 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 
 
 **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 RUFFIN, 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 property, 
 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 pur- 
 chaser, he made no inquiry as to the title, nor asked any delay for the pur- 
 pose of looking into it, but was satisfied to give his bond for the price 
 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 tide 
 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 convey- 
 ance 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
 
 EEMEDY BY INJUNCTION COLLECTION OF PURCHASE MONET. 847 
 
 injunction would of course have that effect and should not be 
 granted unless the covenantee offers to reconvey the premises. 41 
 Temporary injunctions are frequently granted on allegations of 
 the insolvency of the covenantor, until the rights of hostile claim- 
 ants of the land can be decided, 46 or until the covenantor removes 
 incumbrances from the premises, in the latter case, it seems, 
 whether the covenantor is solvent or insolvent 47 
 
 On dissolving an injunction against proceedings to collect the 
 purchase money, if it appear that the injunction was sought in 
 good faith and not merely for purposes of delay, as where a third 
 person was asserting a hostile claim to the land, the court should 
 not give damages, against the purchaser. 48 
 
 336. Resume. While there are cases which apparently con- 
 cede the right of the covenantee, upon a complete failure of the 
 title and before eviction, to rescind the contract and reconvey the 
 premises to the grantor, and to have a perpetual injunction against 
 the collection of the purchase money, the weight of authority in 
 America undoubtedly establishes the rule, that where there has 
 
 it was good or bad, provided the vendee had a covenant of indemnity." Liv- 
 ingston v. Short, 77 111. 587. Rawlins v. Timberlake, 6 T. B. Mon. (Ky.) 225; 
 Hall v. Priest, 6 Bush (Ky.), 14. Miller v. Owens, Walker Ch. (Miss.) 244; 
 Anderson v. Lincoln, 5 How. (Miss.) 279. In Wailes v. Cooper, 24 Miss. 232, 
 it was held that the right to a perpetual injunction against the collection of 
 the purchase money was not affected by the fact that the purchaser bought 
 with notice of defects and took a conveyance with warranty, if the vendor 
 was insolvent. It was further held, however, that the purchaser was not 
 entitled to an injunction under these circumstances, though actually evicted, 
 unless the vendor was insolvent. Parkins v. Williams, 5 Cold. (Tenn.) 512. 
 Demarett v. Bennett, 29 Tex. 267. Rawle Covts. for Title (5th ed.), 378, 
 where it is said that while knowledge of an incumbrance or defect in the title, 
 is no bar to a recovery on the covenants themselves in a court of law, it 
 should operate strongly, if not conclusively, against his right to equitable relief 
 where they are not yet so broken as to give a present right to actual damages. 
 
 "Jackson v. Norton, 6 Cal. 137. Of course if the covenantee has been 
 actually evicted from the entire premises, the injunction will be perpetual. 
 Shelby v. Williams, 1 Bl. (Ind.) 384. Luckett v. Triplett, 2 B. Mon. (Ky.) 39. 
 
 "Gay v. Hancock, 1 Rand. (Va.) 72. Morrison v. Beckwith, 4 T. B. Mon. 
 (Ky.) 73; 16 Am. Dec. 136. Houston v. Hurley, 2 Del. Ch. 247. 
 
 47 Ante, 184. 
 
 "Massie v. Sebastian, 4 Bibb (Ky.), 436; Morris v. McMillan, 3 A. K. 
 Marsh. (Ky.) 565.
 
 848 MARKETABLE TITLE TO EEAL ESTATE. 
 
 been no such breach of the grantor's covenants for title as to give 
 a present right to recover substantial damages at law, and no suit 
 is being actually prosecuted or threatened by an adverse claimant, 
 and the covenantor is neither insolvent nor a non-resident, a per- 
 petual injunction to stay the collection of the purchase money will 
 not be granted. 49 
 
 Rawle Covts. for Title (5th ed.), 375; High on Injunctions (3d ed.) 
 f 384. The books contain many cases, cited to this proposition, in which the 
 question of insolvency and non-residence of the vendor, and of the inconven- 
 iency of proceedings by the adverse claimant, was not raised; and in which no 
 more was decided than that the mere want of title is no ground for detaining 
 the purchase money where the purchaser holds under a conveyance with cove- 
 nants for title, and has not been disturbed in the possession. The author has 
 collected many such cases. Ante, chap. 16. Magee v. McMillan, 30 Ala. 420; 
 McLemore v. Mabson, 20 Ala. 137. Busby v. Treadwell, 24 Ark. 457. Trumbo 
 v. Lockridge, 4 Bush (Ky.), 416; English v. Thomasson, 82 Ky. 281. The 
 Kentucky decisions on this and kindred points, are collected in this case. See, 
 also, Abner v. York, 19 Ky. Law R. 643; 41 S. W. Rep. 309; Foster v. Lyons, 
 19 Ky. Law R. 1906; 44 S. W. Rep. 625. A judgment for the purchase money 
 cannot be enjoined on the ground that the vendor's lien on the property has 
 not been released, since payment of the judgment extinguishes the lien. 
 Wilder v. Smith, 12 B. Mon. (Ky.) 94. Gayle v. Fattle, 14 Md. 69. Here a 
 suit by an adverse claimant against the covenantor was being actually prose- 
 cuted, but there was no allegation or proof of non-residency or -insolvency of 
 the covenantor. Vick v. Percy, 7 Sm. & M. (Miss.) 256; 45 Am. Dec. 303. Im 
 McDonald v. Green, 9 Sm. & M. (Miss.) 138, the point was queried, but was 
 admitted in Johnson v. Jones, 13 Sm. & M. (Miss.) 582, citing Wilty v. High- 
 tower, 6 Sm. & M. (Miss.) 350; Wailes v. Cooper, 24 Miss. 232. Henry T. 
 Elliott, 6 Jones Eq. (N. C.) 175, where the conveyance with warranty pur- 
 ported to carry a fee, but the purchaser got only a life estate. Bumpua T. 
 Plainer, 1 Johns. Ch. (N. Y.) 213; Abbott v. Allen, 2 Johns. Ch. (N. Y.) 519; 
 7 Am. Dec. 554; Miller v. Avery, 2 Barb. Ch. (N. Y.) 118; Platt v. Gilchrist, 
 3 Sandf. (N. Y. S. C.) 118. One who takes a conveyance from a person other 
 than the vendor, cannot enjoin the collection of the purchase money on the 
 ground of defective title. He must look to the covenants of his grantor. Hole- 
 man v. Maupin, 3 T. B. Mon. (Ky.) 380. Abner v. York, 19 Ky. Law R. 643; 
 41 S. W. Rep. 309. Remote possibilities that the covenantee will at some time 
 in the future be disturbed in his possession, constitute no ground for an in- 
 junction. Collins v. Clayton, 53 Ga. 649. In many cases relief by injunction 
 has been denied upon the ground that the remedy at law by action upon the 
 covenants for title is adequate and complete, though no right to recover sub- 
 stantial damages on those covenants exists, the covenantee being still in the 
 possession of the premises. Wilkins v. Hogue, 2 Jones Eq. (N. C.) 479. In 
 Swain v. Burnley, 1 Mo. 404, it was said that the purchaser was entitled to an 
 injunction against a judgment for the purchase money until he could prosecute 
 a suit at law on the vendor's covenants.
 
 BEMEDY BY INJUNCTION COLLECTION OF PURCHASE MONEY. 849 
 
 337. WHERE THERE IS NO PRESENT RIGHT TO RECOVER 
 SUBSTANTIAL DAMAGES ON THE COVENANTS. 4. W here there 
 is no present right to recover substantial damages on the covenants 
 for title, but there is a clear outstanding title in a stranger. In 
 a few of the States injunctions against proceedings to collect the 
 purchase money have been granted upon a complete failure of the 
 title though the covenantee is in the undisturbed possession of the 
 premises, and the covenantor is neither insolvent nor non-resident, 
 and though no suit by the real owner against the covenantee has 
 been prosecuted or threatened. 50 In a case of this kind, as we have 
 already seen, it would not seem inequitable to permit the cove- 
 nantee to resist the payment of the purchase money, provided he 
 reconveyed the premises to the grantor, and placed him substan- 
 tially in the same condition in which he was before the contract 
 was made. 61 But the equity of the cases which sustain the first- 
 mentioned position is open to serious doubt, in that they impose 
 no terms nor conditions upon the covenantee under which he may 
 resist the payment of the purchase money on failure of the title, 
 nor, as a general rule, limit the time during which the injunction 
 
 *Yancey v. Lewis, 4 H. & M. (Va.) 390; Ralston v. Miller, 3 Rand. (Va.) 
 44; 15 Am. Dec. 704; Grantland v. Wight, 5 Munf. (Va.) 295; Keyton r. 
 Brawford, 5 Leigh (Va.), 39; Koger v. Kane, 5 Leigh (Va.), 606; Beale T. 
 Seiveley, 8 Leigh (Va.), 675; Long v. Israel, 9 Leigh (Va.), 556, obiter; 
 Clark v. Hardgrove, 7 Grat. (Va.) 399. Renick v. Renick, 5 W. Va. 291; 
 Walmsley v. Stalnaker, 24 W. Va. 214; Hoke v. Jones, 33 W. Va. 501; 10 S. 
 E. Rep. 775 ; Kinports v. Rawson, 29 W. Va. 487 ; 2 S. E. Rep. 85 ; Jacksom 
 v. Walsh Land Co., 51 W. Va. 482; 41 S. E. Rep. 920. In Stead v. Baker, 13 
 Grat. (Va.) 380, and Lange v. Jones, 5 Leigh (Va.), 192, it was held that 
 equity would not enjoin the collection of the purchase money if a part of the 
 premises was in the hands of an adverse claimant whose title the covenanter 
 denied. In such case his remedy is by ejectment against the claimant. Where 
 the purchaser is mistaken as to the sufficiency of a deed, under which he holds, 
 to convey title (c. g., a deed defectively acknowledged by a married woman), 
 and the defect is clear and admitted, he should not be compelled to rely on the 
 covenant of warranty and take the risk of tie solvency of the vendor's estate 
 after his death. Renick v. Renick, 5 W. Va. 285. 
 
 "Ante, chap. 26. In Clark v. Hardgrove, 7 Grat. (Va.) 407, it was held 
 that the covenantee, on failure of the title, might enjoin the collection of the 
 purchase morey though the covenantor was seeking to collect the same from 
 one whose obligation the covenantee had assigned to the covenantor as col- 
 lateral security for the purchase money. 
 54
 
 850 MABKETABLE TITLE TO BEAL ESTATE. 
 
 shall be operative. 62 It is obviously unjust that the covenantee 
 should detain both the purchase money and the premises 
 indefinitely. 
 
 The doctrine that the covenantee may detain the purchase money 
 on a clear failure of the title, without suit prosecuted or threat- 
 ened by the real owner, and with a solvent covenantor to make 
 good the damages when a substantial breach of the covenants has 
 occurred, has received little, if any, recognition without the States 
 of Virginia and West Virginia, where it prevails. It is there 
 rested upon the ground that the covenantee has no adequate rem- 
 edy at law, there being no right of action on the covenant affirma- 
 tively or negatively by way of recoupment or equitable set-off 
 until an eviction occurs. 53 Hence it appears that in those States 
 
 * Examination of the Virginia decisions cited, supra, will show that in few, 
 if any, of them is there any attempt to fix the length of time during which 
 the injunction shall be operative. Obviously it would be impracticable to fix 
 any such time where the covenantee is allowed to avail himself of dor- 
 mant rights as well as those that are being actively asserted. In Gay v. Han- 
 cock, 1 Rand. (Va.) 72, where the adverse claimant had actually brought suit 
 to enforce his rights, it was of course held that the collection of the pur- 
 chase money should be stayed until that suit should be decided. In Grantland 
 v. Wight, 2 Mnnf. (Va.) 179, it was held that the injunction should not be 
 dissolved until a good and sufficient deed had been tendered to the purchaser. 
 
 "Roger v. Kane, 5 Leigh (Va.), 608, where it was said by TUCKER, P., in 
 respect to the practice in Virginia of enjoining the collection of the purchase 
 money on failure of the title: "The jurisdiction thus confessedly exercised by 
 the courts of equity with us results from what may be called the preventive 
 justice of those tribunals. It arrests the compulsory payment of the purchase 
 money when the purchaser can show that there is a certainty or a strong 
 probability that he must lose that for which he is paying his money. It gives 
 him relief too, though his demand may be in the nature of unliquidated dam- 
 ages, because he has no other means of ascertaining them. Thus, if the pur- 
 chaser can show that he has received a deed with general warranty, and that 
 the title is bad, yet if he has not been evicted he cannot maintain covenant at 
 law and ascertain his damages before that tribunal in order then to set them 
 off against the demand. If, indeed, there are covenants for good title, etc., it 
 may be otherwise; and so it may often happen that an action may be brought 
 where there are such covenants of good title, etc., upon which the validity of 
 the title may be tested and damages of the party ascertained. Whether in 
 these cases relief could be given in equity it is not necessary here to say. But, 
 where there is only a covenant this cannot be done; and, hence, I conceive, the 
 party would be entitled to the assistance of a court of equity where he is full- 
 handed with proof that his title is defective, although he has not yet been 
 evicted."
 
 EEMEDY BY INJUNCTION COLLECTION OF PURCHASE MONEY. 851 
 
 there may be a condition of the title which would justify an in- 
 junction against the collection of the purchase money, and yet 
 would not support the defense of recoupment or set-off at law. 
 
 The injunction will not be granted unless the complainant al- 
 leges facts showing a clear outstanding title in a stranger, and 
 the burden will be on him to prove the existence of that title. 64 
 Allegations that the title is defective, without showing in what 
 respect, or facts which establish nothing more than that the title 
 is doubful or unmarketable, will not support the application for 
 an injunction ; 65 nor will he be entitled to relief if the claims of 
 the owner of the outstanding title are barred by the Statute of 
 Limitations. 66 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 freety 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." If the purchaser accept 
 
 "Grantland v. Wight, 5 Munf. (Va.) 29-5. 
 
 58 Kinports v. Rawson, 29 W. Va. 487, whore it was also held that idle ami 
 groundless claims to the land, though suit had been brought upon them, would 
 not support the injunction. The court must be able to see that there is some 
 foundation for the claim. Bennett v. Pierce, 50 W. Va. 604; 40 S. E. Rep. 
 395; French v. Howard, 3 Bibb (Ky.), 301. The complainant must allege 
 such facts in his bill as will affirmatively show such an incumbrance or out- 
 standing title as will defeat the vendor's title under which the complainant 
 holds. Cantrell v. Mobb, 43 Ga. 193. In Rosenberger v. Keller, 33 Grat. (Va.) 
 494, it was said by STAPLES, J. : " The numerous adjudged cases show that this 
 court has gone very far in staying the collection of the purchase money for 
 land upon proof of a defect of the title where no suit is 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 interferes 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 interf.-re 
 with the vendor in enforcing his judgment since the doubt about the title nr\y 
 eventually turn out to be frivolous and groundless." 
 
 Bennett v. Pierce, 50 W. Va. 604; 40 S. E. 395. 
 
 "Miller v. Argyle, 5 Leigh (Va.), 460 (508); Oay v. Hancock. 
 (Va.) 72. See, also, the cases cited, ante p. 849, n. 50. Lauo v. Tidtall. Gilm.
 
 852 MAEKETABLE TITLE TO KEAL, ESTATE. 
 
 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 
 
 (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 pur- 
 chase money, where the evidence satisfactorily showed that the proceeds of 
 sale under the first mentioned trust had all been properly accounted for, except 
 a trifling amount. 
 
 * Price v. Avres, 10 Grat. (Va.) 575.
 
 CHAPTER XXXV. 
 
 IN CASES OF FRAUD AND MISTAKE. 
 
 FRAUD ON THE PAJEIT 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. 245. 
 
 Erroneous construction of devise or grant. 346. 
 
 Where the construction of the law is doubtful. 347. 
 
 Misrepresentation of the law by the vendor. 348. 
 
 308. 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 tho 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 the validity of the 
 title depended. 2 The exceptions to this rule are those cases in 
 which the purchaser is permitted to enjoin the collection of the 
 
 1 1 Sugd. Vend. 243. 
 
 'Ante, 267. Willan v. Willan, 16 Yes. 83. Madden v. Leak, 5 J. J. 
 Marsh. (Ky.) 95; Ogden v. Yoder, 5 J. J. Marsh. (Ky.) 424.
 
 854 MAEKETABLE TITLE TO REAL ESTATE. 
 
 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 
 But it is believed that no case can be found in the English or 
 American reports, in which a bill in equity has been entertained 
 and a decree rescinding an executed contract for the sale of lands 
 upon no other ground than want of title in the vendor, has been 
 pronounced, 5 he being neither a non-resident nor insolvent. In 
 one of the States, and possibly in others, having paid the purchase 
 money in full and received a conveyance with covenants for title, 
 the 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. 6 
 
 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. 7 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. 8 Of course a covenantee who has 
 been evicted from the premises, cannot maintain a suit in equity 
 
 * 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. 
 
 'See the cases cited, ante, p. . Decker v. Schulze, (Utah) 39 Pac. Rep. 
 261. 
 
 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. 
 
 7 Winfrey v. Drake, 4 Lea (Tenn.), 290. 
 
 Fenton v. Alsop, 79 Cal. 402; 21 Pac. Rep. 839.
 
 IN CASES OF FRAUD AND MISTAKE. 855 
 
 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.' 
 
 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 facta 
 respecting the title, is clear and undoubted. 10 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. 11 We have seen that one who has been induced 
 to accept a conveyance of lands through the fraudulent representa- 
 tions of the grantor respecting the title, is not limited to his action 
 
 Ohling 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. 
 
 10 1 Sugd. Vend. (8th Am. ed.) 375 (246) ; Dart V. & P. 377; Bigelow on 
 Fraud, 415. Berry v. Arimstead, 2 Keen, 221; Gibson v. D'Este, 2 Y. A 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, c. t. a., fraudu- 
 lently represented that he had authority under the will to sell. Foster v. 
 Gresset, 29 Ala. 393.; Bryant v. Boothe, 30 Ala. 311; 68 Am. Dec. 117; Will- 
 iams v. Mitchell, 30 Ala. 299 ; Prout v. Roberts, 32 Ala. 427. Parham v. Ran- 
 dolph, 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. 687. Fitch v. Baldwin, 17 Johns. (N. Y.) 161. Shackelford 
 v. Handly, 1 A. K. Marsh. (Ky.) 495; 10 Am. Dec. 753; Peebles v. Stephens, 
 3 Bibb (Ky.), 324; 6 Am. Dec. 660; 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. 605; Ramirez v. 
 Barton, (Tex. Civ. App.) 41 S. W. Rep. 508; Corbett v. McGregor, (Tex. Civ. 
 App.) 84 S. W. Rep. 278. 
 
 11 Ante, 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.
 
 856 MARKETABLE TITLE TO BEAL ESTATE. 
 
 on the covenants contained in the deed. Equity has concurrent jur- 
 isdiction 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. 12 
 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 worth- 
 less, and the rule is the same whether the subject of the contract 
 be real or personal property; if the thing, the consideration of 
 which is sought to be recovered back, is entirely worthless, there is 
 no duty to return it. 13 Neither does the rule apply if it be clear 
 that the seller will not receive back tlje premises. 14 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 premises. 15 The 
 purchaser will be entitled to a decree for the value of his improve- 
 ments, upon rescission of an executed contract for the sale of lands 
 on the ground of fraud or mistake respecting the title; also for 
 taxes paid by him, with interest thereon, and on the sums expended 
 in good faith by him for permanent improvements. 16 But he must 
 account for the rents and profits. 17 He is also entitled to a lien on 
 
 "Ante, 270. 1 Story Eq. Jur. 193; Adams Eq. 177; 3 Pars. Cont. 177. 
 Meek v. Spracher, 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 distinctions be- 
 tween 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 iisaffirms, while the latter affirms, the contract. McLennan v. Pren- 
 tice, (Wis.) 55 N. W. Rep. 764. 
 
 "Bond v. Ramsey, 89 111. 29. Babcock v. Case, 61 Pa. St. 427; 100 Am. 
 Dec. 654. Here the vendor 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. 
 
 15 Wheeler v. Standley, 50 Mo. 509. 
 
 18 Perry v. Boyd, 126 Ala. 162 ; 28 So. Rep. 711. 
 
 "Baptiste v. Peters, 51 Ala. 158.
 
 IN CASES OF FBAUD AND MISTAKE. 857 
 
 such interest as the grantor has in the land, to secure the return 
 of the purchase money paid by him. 18 
 
 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. 19 But it will 
 suffice to allege the specific fraudulent representation that was 
 made, without setting out facts showing a want of title. 10 
 
 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. 21 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. 22 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 i'f 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 
 in possession of the cause, will, to prevent multiplicity of suits, 
 proceed to determine the whole cause. 23 This rule, doubtless, pre- 
 
 " Ramirez v. Barton (Tex. Civ. App.), 41 S. W. Rep. 508. 
 
 "Hart v. Hannibal & St. Jo. R. Co., 65 Mo. 509. James v. McKernon, 6 
 Johns. (N. Y.) 543. Patton v. Taylor, 7 How. (U. S. 15SK 
 
 20 Orendorff v. Tallman, 90 Ala. 641 ; 7 So. Rep. 821. 
 
 "Ante, 276. Where it appeared that the purchasers were non-residenta, 
 and that the prevalence of yellow fever in the vendor's locality prevented an 
 earlier offer, it was held that an offer to rescind made six months after dis- 
 covery of the fraud, was made within a reasonable time. Orendorff v. Tall- 
 man, 90 Ala. 641; 7 So. Rep. 821. 
 
 * 1 Sugd. Vend. (14th ed.) 55, 233, 251 ; 21 & 22 Viet. c. 27. 
 
 Person 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, wiived 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 failure of 
 title to part of the property, he not having been disturbed in the possession of 
 the property.
 
 858 MARKETABLE TITLE TO REAL ESTATE. 
 
 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 contract, 
 voidable on the ground of fraud, have power to give judgment for 
 whatever damages the party defrauded may have sustained. 'In 
 Kentucky it has been held that equity will not entertain a bill 
 seeking damages for fraudulent representations by the vendor as 
 to his title. In such a case equity relieves by setting aside the con- 
 tract entirely, and not by awarding compensation in damages, ex- 
 cept, perhaps, where the complainant has, for some reason, an in- 
 adequate remedy at law. 24 
 
 340. MISTAKE OF TACT. 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. 25 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. 26 But exe- 
 cuted 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. 27 The 
 cases in which rescission of an executed contract for the sale of land 
 
 54 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. 
 
 25 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. 
 
 20 As to the right to rescind an executory contract on the ground of mistake 
 as to the title, see Mead v. Johnson, 3 Conn. 597. Smith v. Robertson, 23 Ala. 
 312. Smith v. Mackin, 4 Lans. (N. 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. 
 
 27 Hurd v. Hall, 12 Wis. 125.
 
 IN CASES OF FRAUD AND MISTAKE. 859 
 
 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 narties as to the existence or non-existence of some 
 particular fact or lacts upon which the validity of the title de- 
 pends, and which the parties must be presumed to have had in 
 contemplation at the time the conveyance was made. 28 (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, 29 as where the purchaser of an estate, pur autre 
 vie, takes a conveyance in ignorance of the fact that the person 
 on whose life the estate depends is dead. 30 Of the same class is a 
 case in which, at the time of the sale, the parties were ignorant 
 
 28 Nabours 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. McCormick, 8 N. Y. 331. 
 In this case, the plaintiff purchased a tax title from the defendant, both being 
 ignorant that the premises had been redeemed by a party entitled. It was 
 held that the plaintiff might recover back the purchase money. A mistake in 
 the belief 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. Moreland v. Atchison, 19 Tex. 303. In Baptiste v. Peters, 51 
 Ala. 158, 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 ad- 
 joined the separate property of the wife. The contract was rescinded on the 
 ground that there was a mistake of fact. Where an administrator sold an 
 estate supposing his title to be in fee, and the purchaser supposed he was 
 buying a fee, and nothing passed but an equity of redemption, 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, 69 Mo. 13; 33 Am. Rep. 476. 
 
 "1 Story Eq. Jur. (I3th ed.) 143. Hitchcock v. Giddings, 4 Price, 135. 
 This is the leading English case on the point. The purchaser bought an in- 
 terest in a remainder in fee expectant on an estate tail. At the time of the 
 purchase, the tenant in tail had barred the remainder by suffering a common 
 recovery, of which fact the parties were ignorant until after a conveyance 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. LEONABDS has expressed himself in 
 guarded terms about this case, and Lord ELDON doubted its authority. 1 
 Sugd. Vend. (8th Am. ed.) 376 (247). 
 
 "Allen v. Hammond, 11 Pet. (U. S.) 63, 06. diet.
 
 860 MARKETABLE TITLE TO REAL ESTATE. 
 
 that the land had previously been sold and conveyed by one acting 
 under a power of attorney from the vendor. 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 
 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 
 
 81 Armistead v. Hundley, 7 Grat. (Va.) 52; Humphrey v. McClenachan, 1 
 Munf. (Va.) 493. 
 
 M It will be found that, in nearly all the cases cited below, no posssesion 
 was ever taken or received 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 proceed- 
 ings, 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 re- 
 demption had expired. In Granger v. Olcott, 1 Lans. (N. Y.) 169, the prin- 
 ciple stated in the text was rcognized, but relief was refused the purchaser 
 of a defective tax title on the ground that the parties considered 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 examined the title and 
 pronounced it good. It was held that the subject-matter of the contract hav- 
 ing 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 con- 
 veyance was canceled on the ground of mistake. So, also, in Bowlin v. Pol- 
 lock, 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-laud 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 was 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.
 
 IN CASES OF FBAUD AND MISTAKE. 861 
 
 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." 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 
 
 * Middlekauff v. Barrick, 4 Gill (Md.), 290, 299. Bates v. Delevan, 5 Paige 
 (N. Y.), 299. Sutton v. Sutton, 7 Grat. (Va.) 234; 56 Am. Dec. 109. See 
 the remarks of the court in Kurd v. Hall, 12 Wis. 125, 133. Trevino v. Cantu, 
 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 Rut- 
 land, 3 Ves. 235, n. 
 
 The reasoning of the text is satisfactory where the paramount title is found 
 to be 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 insuffi- 
 ciently 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 is no doubt that equity would rescind the contract at the suit of the 
 purchaser; yet it would be difficult to distinguish such a case from one ia 
 which the title, for a like reason, is found to be outstanding in a stranger. 
 See, in this connection, the observation of Lord COTTENHAM, in Stewart T. 
 Stewart, 6 Cl. & Fin. 968, that " it might not be easy to 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 receives and the purchaser pays money 
 without the intended equivalent." Without attempting to discover a principle 
 upon which the two cases may be distinguished, we content ourselves with stat- 
 ing 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 T. 
 Gunter, (Tex.) 17 S. W. Rep. 117. 
 
 " 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
 
 862 MARKETABLE TITLE TO REAL ESTATE. 
 
 to rescission on the ground of mistake, if, after it had been exe- 
 cuted, the title should be first discovered to be bad. 35 
 
 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. 
 
 85 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 ten- 
 dered 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 ( N. 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 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. Sec- 
 ondly, 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 per- 
 pormed, there can be no jurisdiction in equity to decree a second performance. 
 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 per- 
 formed, 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. Where both parties are 
 innocent of fraud, and 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 instru- 
 ment had he been acquainted with facts rendering it to his interest to do so, 
 or which, if he had known them, would have caused him to reject the instru- 
 ment which he accepted. It is beyond the power even of a court of equity to 
 make contracts for parties. The jurisdiction to reform 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 con- 
 tents of which are fully comprehended by both parties at the time of its exe-
 
 IN CASES OF FBAUD AND MISTAKE. 863 
 
 If a man purchase his own estate in ignorance of facts which 
 would show his right, he will be relieved in equity." 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. 
 
 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. 87 Of course, 
 
 cution, cannot be altered in its terms By the court. See Wilson v. Deen, 74 N. 
 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 con- 
 tract of purchase he might have insisted on a deed with covenants, and that he 
 believed the title to be clear when he accepted one without covenants. If the 
 grantor and grantee had both intended that this deed should contain cove- 
 nants, and supposed at the time of its delivery that it did contain them, but 
 through a mistake of the scrivener they had been omitted, the court might 
 insert them." 
 
 M 1 Sugd. Vend. (14th Eng. ed.) 245. Bingham v. Bingham, 1 Ves. Sen. 126; 
 Cooper v. Phibbs, L. R., 2 H. L. 170. These, however, were cases in which the 
 mistake was rather as to the law applicable to known facts than mistake as to 
 the facts themselves. The rule is thus broadly stated by Lord ST. LEONARDS 
 (1 Sugd. Vend. [8th Am. ed.] 533) : " 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 refund the purchase money with interest, though no 
 fraud appears." It is obvious 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 made between igno'rance 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. Newl. Cont. in Eq. ch. 28, 432. 
 See, also, Fitch v. Baldwin, 17 Johns. (N. Y.) 161. ^"here 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-
 
 864 MARKETABLE TITLE TO REAL ESTATE. 
 
 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 
 included 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 
 rescind the contract and recover back' the purchase money, whether 
 the deed was with or without covenants for title. 40 The acceptance 
 of a deed which, by mistake, does not convey the lands purchased 
 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 cor- 
 rection of the error. 42 Of course, if the land conveyed be not that 
 
 veyance would seem unnecessary. If, however, the grantor had conveyed with 
 general waranty and had afterwards acquired title to the premises, it would 
 inure to the benefit of the grantee; hence the necessity of a reconveyance. 
 
 DTJtricht v. Melchior, 1 Dall. (Pa.) 428. 
 
 "Butler v. Miller. 15 B. Mon. (Ky.) 617. 
 
 40DTJtricht v. Melchior, 1 Dall. (Pa.) 429. Marwin v. Bennett, 8 Paige 
 Ch. (N. Y.) 311. In Morse v. Elmendorff, 11 Paige Ch. (N. Y.) 277, it ap- 
 peared that the parties contracted for the sale and conveyance of a supposed 
 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 spe- 
 cific 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: 
 Poehl v. Haumesser, 114 Ind. 311; 15 N. E. Rep. 345; Gordon v. Goodman, 98 
 Ind. 269. 
 
 41 Johnson v. Houghton, 19 Ind. 359. See ante, ch. 12, "Reformation of 
 Deeds."
 
 IN CASES OF FEAUD AND MISTAKE. 865 
 
 -which was purchased, the grantee will be relieved in equity ; and it 
 is immaterial in such cases whether the conveyance was with or 
 without covenants of title. 43 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 
 
 The rule that the grantee on rescission of the contract must re- 
 convey and restore the premises to the grantor and place him sub- 
 stantially in statu quo, applies as well where the contract is re- 
 scinded 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 
 lanlo without offering to restore the premises to the grantor. 4 * 
 
 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 negli- 
 gence, the means of knowledge being easily accessible. 47 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 paramount 
 
 4 '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; Evans v. 
 Boiling, 5 Ala. 550. 
 
 45 Sandford v. Travis, 7 Bosw. (N. Y.) 498; Crosier v. AWT. 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. Mullreed v. Clarft, 119 
 Mich. 578 ; 78 N. W. Rep. 658. 
 
 46 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.) 5 191; Story Eq. Jur. (13th ed.) p. 153; Kerr F 
 & M. 407. Trigg v. Reade, 5 Humph. (Tenn.) 541 ; 42 Am. Dec. 447. Norman 
 v. Norman, 26 S. C. 41 ; 11 S. E. Rep. 1096. 
 55
 
 866 MARKETABLE TITLE TO REAL ESTATE. 
 
 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. 48 
 
 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 ihe title, or 
 rh.e vendor have parted with his rights. 49 
 
 343. Mistakes as to quantity. Mistakes in the quantity cf 
 land conveyed have frequently been made the ground of applica- 
 tion by the purchaser for relief, either in the rescission of the en- 
 tire 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. 50 If, how- 
 ever, 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. 51 
 
 48 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 EDWARD SUGDEN on this ground. The pur- 
 chaser 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 appli- 
 cation of the doctrine of mistake in a case in which the vendor was in pos- 
 session and prima facie owner of the estate. If there were, a covenant 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 satisfaction 
 of the debt, and entered satisfaction of his lien on the record, in ignorance ot 
 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 incumbrancer, nor 
 to reinstate the lien which he had released. 
 
 "Kerr F. & M. 408; Bishop's Eq. (3d ed.) 191; 1 Story Eq. Jur. (13th 
 ed.) 141. Trigg v. Reade, 5 Humph. (Tenn.) 529; 42 Am. Dec. 447; Grymcs 
 v. Saunders, 93 U. S. 55. 
 
 50 Thompson v. Jackson, 3 Rand. (Va.) 504, 509; 15 Am. Dec. 721. See 
 Zuenker v. Kuehn, 113 Wis. 421; 88 N. W. Rep. 605. 
 
 51 Moore v. Hazelwood, 67 Tex. 624, citing Daughtry v. Knolle, 44 Tex. 450 ; 
 O'Connell v. Duke, 29 Tex. 300; 94 Am. Dec. 282; Smith v. Fly, 24 Tex. 345;.
 
 IN CASES OF FRAUD AND MISTAKE. 867 
 
 344. MISTAKE OF LAW. General principles. ( 2 ) The second 
 class of cases in which relief on the ground of mistake as to the 
 title has been sought by the purchaser, consists of those in which 
 the parties were correctly informed of all the facts material to the 
 validity of the title, but were mistaken in their application of the 
 law to those facts ; in other words, cases in which relief is asked on 
 the ground of a mistake of the law. This is a much vexed question. 
 It is a legal maxim that ignorance of the law excuses no one, and 
 again, that every one is presumed to know the law. It would be 
 extremely inconvenient to permit a party to set up a defense of 
 ignorance or mistake of the law, because such a rule would en- 
 courage the parties to be careless in ascertaining their legal rights 
 at the time of entering upon the contract ; and further, because it 
 would be a great inducement to fraud and perjury, if an un- 
 scrupulous party knew that he might at any time escape the obliga- 
 tion of his contract by declaring his ignorance of the law in the 
 premises. Consequently it has been decided in many cases that 
 ignorance or mistake of the law affecting the validity of the title 
 to real estate is no ground for relieving the purchaser from his 
 bargain. 52 
 
 76 Am. Dec. 109. In Brooks v. Riding, 46 Ind. 15, it appeared that both the 
 grantor and grantee were ignorant of the faet that five feet of the width of the 
 property sold was a part of an adjacent street. The purchase money was 
 abated to the extent of the value of the five feet lost. See, also, 2 Warvelle 
 Vend. 840. In Butcher v. Peterson, 26 W. Va. 447, the covenantee was evicted 
 from a portion of the premises, and the covenantor claimed that as there was 
 a mutual mistake of the parties as to the title to that part the entire contract 
 must be rescinded, but the court held that the covenantee might keep that 
 part to which the title was good, and have an abatement of the purchase money 
 as to the other part. 
 
 ! Fonbl. Eq. ch. 2, 7. 1 Story Eq. Jur. (13th ed.) 137, where it is 
 said that whatever exceptions there may be to the rule are not only few in 
 number, but will be found to have something peculiar in their character, and 
 to involve other elements of decision. Shotwell v. Murray, 1 Johns. Ch. (N. 
 Y.) 512, one of Chancellor KENT'S decisions, is a leading case on this point. 
 A. purchased at an execution sale to enforce a judgment lien. There wa* a 
 prior judgment binding the land, but the judgment creditor was the same in 
 both cases, and of that fact the purchaser was informed. After the first wil 
 an execution was issued under the senior judgment, and agninst this the pnr 
 chaser sought an injunction, claiming that he was mistaken in believing tl 
 one judgment to be merged in the other. Relief was denied on the ground that 
 the mistake was merely one of law. So, in Norman v. Norman, 26 S
 
 868 MARKETABLE TITLE TO EEAL ESTATE. 
 
 On the other hand, there have been many cases in which parties 
 have been permitted to avail themselves of a mistake of the law 
 relating to their private rights. Most of these cases, so far as they 
 have arisen between vendor and purchaser, have been those in 
 
 11 S. E. Rep. 1096, it was held that a purchaser at a sale under a judgment 
 bidding in the mistaken belief that the lien of the judgment was superior to 
 that of a mortgage lien of record, could not be relieved from his bid. In 
 McMurray v. St. Louis Oil Co., 33 Mo. 377, the purchaser bought at a sale 
 under a judgment which was void because confessed by the president of a cor- 
 poration, no process having been served upon him. The purchaser Avas aware 
 of the facts, but ignorant that the judgment was void. Relief was denied. In 
 McAninch v. Laughlin, 13 Pa. St. 370, the purchaser was aware of all the facts, 
 but mistaken as to the right of a widow to claim dower in the land, and relief 
 on the ground of mistake was refused. The fact that a purchaser at a judicial 
 sale was ignorant of the want of jurisdiction in the court to decree the sale, 
 will not excuse him from payment of the purchase money, after confirmation 
 of the sale. Burns v. Hamilton, 33 Ala. 210; 50 Am. Dec. 570. This seems a 
 great hardship. We have seen, however, that in cases in which the proceeds 
 of the sale went to the discharge of liens or charges upon the land, the pur- 
 chaser, as a general rule, is subrogated to the benefit of the lien. Ante, 204. 
 In Smith v. Winn, (So. Car.) 17 S. E. Rep. 717, it was held that a purchaser's 
 mistake in supposing that a contingent remainderman 'Vas not a necessary 
 party to a suit for the sale of an estate, did not entitle him to relief. Upon 
 the general proposition that mistake of the law, whether relating to title or to 
 other matters, furnishes no ground for relief, see Hunt v. Rousmaniere, 1 Pet. 
 (U. S.) 1 (this case has been cited both ways). Lyon v. Richmond, 2 Johns. 
 Ch. (N. Y.) 51 ; Storrs v. Barker, 6 Johns. Ch. (N. Y.) 169; 10 Am. Dec. 316, 
 per KENT, Ch.; Wheaton v. Wheaton, 9 Cow. (N. Y.) 96. Gwynn v. Hamilton, 
 29 Ala. 233. Good v. Herr, 7 W. & S. (Pa.) 253; 42 Am. Dec. 236. In Bank 
 of U. S. v. Daniel, 12 Pet. (U. S.) 55, it was said: "Vexed as the question 
 formerly was, and delicate as it now is, from the confusion in which numerous 
 nnd conflicting decisions have involved it, no discussion of cases can be gone 
 into, without hazarding the introduction of exceptions which will be likely to 
 sap the direct principle we intend to apply; indeed, the remedial power 
 claimed by courts of chancery to relieve against mistakes of law, is a doctrine 
 rather grounded upon exceptions, than upon established rules. To this course 
 of adjudication we are unwilling to yield. That mere mistakes of law are not 
 remedial is well established, as was declared by this court in Hunt v. Rous- 
 mainiere, 1 Pet. (U. S. ) 15, and we can only repeat what was there said: 
 ' That whatever exceptions there may be to the rule will be found few in num- 
 ber, and to have something peculiar in their character,' and to involve other 
 elements of decision." Story Eq. Jur. (13th ed.) 137. For a contrary and 
 recent expression of opinion on this point by the Supreme Court of the United 
 States, see Griswold v. Hazard, 141 U. S. 260. See Kyle v. Febley. 81 Wis. 
 67. 61 N. W. Rep. 257. Judge STOBY closes his review of the cases upon this 
 point with the following observations : " We have thus gone over the prin- 
 cipal cases supposed to contain contradictions of. or exceptions to, the generaf
 
 IN CASES OF FRAUD AND MISTAKE. 869 
 
 which relief was sought by the vendor or grantor on the ground 
 that he had parted with his estate or interest in the premises under 
 a mistake of law as to the quantity and extent, or even the exist- 
 ence, of that interest. 63 And in some cases the purchaser has been 
 relieved from the obligation of his contract on the ground of a 
 mutual mistake of the law in respect to some fact upon which the 
 validity of the title he was to receive depended. 64 The principle 
 upon which relief was granted was the same in either case. 
 
 rule, that ignorance of the law, with a full knowledge of the facts, furnishes 
 no ground to rescind agreements or to set aside solemn acts of the parties. 
 Without undertaking to assert that there are none of these cases which are 
 inconsistent with the rule, it may be affirmed that the real exceptions to it 
 are very few, and generally stand upon some very urgent pressure of circum- 
 stances." Eq. Jur. (13th ed.) 137. 
 
 13 1 Story Eq. Jur. 121. Landsdowne v. Landsdowne, Mos. 3(54; 2 Jac. 4 
 W. 205; Naylor v. Winch, 1 Sim. & Stu. 555; Turner v. Turner, 2 Ch. Rep. 81. 
 Kornegay v. Everett, 99 N. C. 30, 34; 5 S. E. Rep. 418. This rule was applied 
 in Lammot v. Bowly, 6 Harr. & J. (Md.) 500, where one parted with property 
 upon a misconstruction of the legal effect of a devise. So, also, in Irick v. Ful- 
 ton, 3 Grat. (Va.) 193, which was a suit by the vendor to rescind, she having 
 conveyed her entire interest in the premises, supposing it to be an undivided 
 moiety, when, in fact, she owned the whole as surviving joint tenant, /oilman 
 v. Moore, 21 Grat. (Va.) 313, 324, apparently conflicts with this case, but is 
 distinguished from it by STAPLES, J., who points out that, in the first case, the 
 purchaser bought only one-half of the estate and got the whole, while in the 
 case at bar the purchaser believed he was buying, and actually paid for, the 
 whole. This fact, of course, would make a difference fti the vendor's measure 
 of relief, but it is not clearly perceived how any change in the principle upon 
 which r-elief should be afforded, is thereby produced. In the latter case the 
 vendor would not be permitted to rescind, without refunding the purchase 
 money for that part of the estate which the purchaser loses. 
 
 64 Fry Sp. Perf. (3d Am. ed.) 768; 15 Am. A Eng. Encyc. of L. 034. State 
 V. Paup, 13 Ark. 129; 56 Am. Dec. 303. The leading English case upon the 
 point is Bingham v. Bingham, 1 Ves. Sen. 126; Betts' Supp. 79. The plaintiff 
 held under a devise from A., and having been persuaded by the defendant and 
 a scrivener that A. had no power to devise, and that the title was in defendant, 
 purchased his alleged interest for eighty pounds. Afterwards he brought his 
 bill in equity to rescind the contract, alleging that all parties were mistaken in 
 their belief that the devise was invalid. The contract was rescinded and the 
 restoration of the purchase money decreed. Mr. Pomeroy (2 Eq. Jur. $ 849) 
 concedes that relief should be afforded in such a case, but treats the mistake 
 as one of fact. He formulates this rule: " Wherever a person is ijniornnt or 
 mistaken with respect to his own antecedent and existing private logal rights, 
 interests, estates, duties, liabilities, or other relations, either of projwrty, or 
 of contract, or of personal status, and enters into some transaction the legal 
 scope and operation of which he correctly apprehends and understands, for the
 
 870 MABKETABLE TITLE TO REAL ESTATE. 
 
 345. Distinction between ignorance of law and mistakes 
 of law. In some cases a distinction has been drawn between mere 
 ignorance of the law and mistakes of the law, relief being refused 
 
 purpose of affecting such assumed rights, interests, or relations, or of carrying 
 out such assumed duties or liabilities, equity will grant its relief, defensive or 
 affirmative, healing the mistake as analogous to, if not identical with, a mis- 
 take of fact." All of this seems capable of reduction to the simple observation 
 by Judge STORY (1 Eq. Jur. [13th ed.] 122), that where the party acts upon 
 the misapprehension that he has no title at all in the property, it seems to 
 involve in some measure a mistake of fact, that is, of the fact of ownership 
 arising from a mistake of law." But the learned judge does not commit him- 
 self to this view, for he asks in a note, " Is ignorance of the title when all the 
 facts on which it legally depends are known, ignorance of a fact or of law?" 
 There is some plausibility in the idea that ignorance of title resulting from 
 ignorance of a particular law on which the title depends, is a mistake of fact ; 
 in one sense it undoubtedly is, but that is in the same sense in which it might 
 be said that ignorance of a particular law is ignorance of the fact that such 
 a law exists, and that, of course, is a palpable sophism when applied to the 
 question under consideration. If a stranger comes to our shores, parts with 
 his inheritance or incurs a liability upon the assumption that the law of 
 primogeniture exists among us, can any one doubt that this is a mistake of 
 law pure and simple? Judge STORY says: "A party can hardly be said to 
 intend to part with a right or title of whose existence he is wholly ignorant " 
 (Eq. Jur. [13th ed.] p. 131), and if to that should be added "whether such 
 ignorance arise from mistake of a particular fact or from mistake of a particu- 
 lar law," we would have what is believed to be a true expression of the rule 
 to be deduced from many decisions. See Prof. Bigelow's note, Story's Eq. Jur. 
 (13th ed.) p. 112. In Lowndes v. Chisholm, 2 McCord Ch. (S. C.) 455; 16 
 Am. Dec. 667. a mortgagee obtained a judgment against the mortgagor and sold 
 the premises under a fi. fa. without foreclosing the mortgage. The purchaser 
 was aware of the facts, but was mistaken as to the law, by which he acquired 
 only the mortgagor's equity of redemption instead of the fee. It was held 
 that he was entitled to rescind. In Champlin v. Laytin, 6 Paige Ch. (N. Y.) 
 197 ; 31 Am. Dec. 382, the grantor conveyed a lot embraced within the bounds 
 of a public street which had been laid out on a map but not opened. The 
 parties were aware of the facts, but mistaken as to the legal right of the owner 
 of the land so conveyed, to receive compensation for it when the street should 
 be opened. There was in fact no such right of compensation, and the contract 
 was rescinded on the ground of mistake of law. In Lawrence v. Beaubien, 
 2 Bailey L. (S. C.) 623; 23 Am. Dec. 155, real property had been devised 
 to an alien, and the devisee, apprehensive that the devise was void and that 
 the property would pass to the heir, executed a bond to the latter in consid- 
 eration of a release of all his rights in the premises. The devise, however, 
 was valid, and the devisee was permitted to show that he was mistaken as to 
 the law in that respect, and relieved from his liability on the bond. On the 
 general proposition that equity will relieve against a plain mistake of the 
 law, see 1 Beach Mod. Eq. Jur. 35; Kerr F. & M. (Bump's ed.) 398; 2 War- 
 velle Vend. 756; Fry on Sp. Perf. (3d Am. ed.) 768; Bispham's Eq. (3d ed.)
 
 IN CASES OF FRAUD AND MISTAKE. 871 
 
 in the former case and granted in the latter. 55 One of the principal 
 reasons why a party will not be heard to allege his ignorance of the 
 law in support of his demand or defense, is that there is in most 
 
 187; Prof. Bigelow's note, Story's Eq. Jur. (13th ed.) p. 112, and the same 
 writer's monograph " Mistake of Law as a Ground of Equitable Relief," 1 L, 
 Quart. Rev. 298. Drew v. Clarke, Cook (Tenn.), 374. Fitzgerald v. Peck, 
 4 Litt. (Ky.) 125. Benson v. Markoe, 37 Minn. 30; 33 N. W. Rep. 38. In 
 Griswold v. Hazard, 141 U. S. 260, 284, a surety on a bail bond in a civil suit 
 was permitted to show that it was understood by him at the time the bond 
 was given that he was to be liable only in case the defendant did not appear 
 before the court at the time specified in the bond, and that he was not to be a 
 surety for the payment of any judgment or decree for money which might be 
 pronounced against the defendant, though the undertaking of the surety was 
 " to abide arid perform the decrees and orders of the court." The penalty 
 of the bond was $53,000, and the surety, a stranger to the defendant, had exe- 
 cuted it at the request of a mutual friend, and as a matter of courtesy and 
 good will. This was a case of much difficulty. BROWN, J., rendered a dissent- 
 ing opinion. 
 
 "Lawrence v. Beaubien, 2 Bailey L. (S. C.) 623; 23 Am. Dec. 155; Lowndea 
 v. Chisholm, 2 McCord Ch. (S. C.) 455; 16 Am. Dec. 667; reaffirmed in Brock 
 v. O'Dell, (S. C.) 21 S. E. Rep. 976. The concurring opinion of PAIGE, Senator, 
 in Champlin v. Laytin, 18 Wend. (N. Y.) 422; 31 Am. Deo. 382, contains an 
 instructive review of the authorities upon this point, and for that reason is 
 here quoted at considerable length : " I am prepared to assent to the propo- 
 sition of the vice-chancellor, that a contract entered into under an actual 
 mistake of the law on the part of both contracting parties, by which the 
 object and end of their contract, according to its intent and meaning, cannot 
 be accomplished, is as liable to be set aside as a contract founded in mistake 
 of matters of fact. The proper distinction, in my judgment, is taken in the 
 rase of Lawrence v. Beaubien, 2 Bailey Eq. (S. C.) 623; 23 Am. Dec. 155; and 
 Lowndes v. Chisholm, 2 McCord Eq. (S. C.) 455; 16 Am. Dec. 667, and Hop- 
 kins V. Mazyek, 1 Hill Eq. (S. C.) 250, between a mistake of the law and a 
 mere ignorance of the law. The question, it seems to me, was in these cases 
 correctly decided. Several of the cases from the English reports cited on the 
 argument were cases where relief was granted against mere mistake of law. 
 Such were the cases of Willan v. Willan, 16 Ves. 72 ; Bingham v. Bingham, 1 
 Ves. 126; Pusey v. Desbourne, 3 P. Wms. 320; Landsdowne v. Landsdowne, 
 Mos. 364. The cases of Onions v. Tyrer, 1 P. Wms. 345, and Perrot v. Perrot, 
 14 East, 439, also recognize the principle that relief may be afforded in cases 
 of mere mistakes of law. The case of Naylor v. Wench, 1 Sim. A Stu. 561, 
 is to the same effect. So is the case of of Fitzgerald v. Peck, 4 Litt. (Ky.) 
 127. I cannot see any good sense in the distinction of granting relief against 
 mistakes of fact and refusing it in cases of acknowledged mistakes of law. 
 Both, in my judgment, ought to be placed on the same footing. If the prin- 
 ciples of justice require relief in the one case, they equally do in the other. 
 The vice-chancellor, Sir JOHN LEACH, in Naylor v. Wench. 1 Sim. A Stu. 555, 
 says: '14 a party acting in ignorance of a plain and settled principle of law 
 is induced to give up a portion of his indisputable property to another under
 
 872 MARKETABLE TITLE TO EEAL ESTATE. 
 
 cases no way of determining the truth or falsehood of the allega- 
 tion. But if it appear that the law applicable to the case was 
 adverted to by the parties and an erroneous conclusion reached, 
 
 the name of a compromise, a court of equity will relieve him from the effect of 
 his mistake.' Although the case of Hunt v. Rousmaniere, 1 Pet. (U. S.) 13, 
 ultimately turned on another question, yet the opinion of Chief Judge MAR- 
 SHALL in that case, as reported in 8 Wheat. (U. S.) 205, clearly shows which 
 way was the inclination of his mind. He says, speaking of the case of Lands- 
 downe v. Landsdowne, Mos. 364, ' that, as a case in which relief has been 
 granted on a mistake of law, cannot be entirely disregarded.' And he further 
 says : ' Although we do not find the naked principle that relief may be granted 
 on account of ignorance of law asserted in the books, we find no case in which 
 it has been decided that a plain acknowledged mistake of law is beyond the 
 reach of equity.' And again, page 216, he says: 'We are unwilling, where the 
 effect of the instrument is acknowledged to have been entirely misunderstood 
 by both parties, to say a court of equity is incapable of affording relief.' And 
 WASHINGTON, J., in the same case (1 Pet. 15), in the conclusion of his opinion, 
 says : ' It is not the intention of the court to lay down that there may not he 
 cases in which a court of equity will relieve against a plain mistake arising 
 from ignorance of law.' JOHNSON, J.. in Lawrence v. Beaubien, 2 Bailey Eq. 
 (S. C.) 623; 23 Am. Dec. 155, says: 'All the difficulty and confusion which 
 have grown out of the application of the maxim, ignorantia juris neminem 
 excusat, appears to me to have originated in confounding the terms ignorance 
 and mistake. The former is passive and does not presume to reason, but the 
 latter presumes to know when it does not, and supplies palpable evidence of its 
 existence.' He further says, in Hopkins v. Mayzek, 1 Hill Eq. ( S. C. ) 250, that 
 a mere ignorance of the law is not susceptible of proof, and, therefore, cannot 
 be relieved; but that a mistake of law may be proven, and when proved relief 
 may be afforded. If relief was to be granted upon every allegation of a mere 
 ignorance of law, great embarrassment would arise in discriminating between 
 the cases of actual ignorance and those of feigned ignorance. So, where the 
 ignorance or mistake of the law is only in one of the contracting parties, and 
 the other party has not taken any advantage of the circumstances in making 
 the contract, it would not be proper to grant relief against such ignorance or 
 mistake. But where a contract is entered into under an actual and reciprocal 
 mistake of law in both the contracting parties, by which the manifest intention 
 of the parties cannot be accomplished, and which ex cequo et bono ought not to 
 be binding, and where such mistake is either acknowledged or undoubted evi- 
 dence of it is produced, I cannot see any good reason why relief should not be 
 granted in equity to the same extent as is done in cases of mistakes in matter 
 of fact. The principles of natural justice require that the like relief should be 
 granted in both cases. I would qualify the rule, however, as was done by 
 JOHNSON, J.. in Lawrence v. Beaubien, and deny relief if it appeared the 
 contract was tae compromise of doubtful right, or was entered into as a specu- 
 lating bargain. By adopting the rule with these qualifications, in my judg- 
 ment no mischievous consequences would follow, but, on the contrary, the 
 interests of justice would be advanced."
 
 IN CASES OF FRAUD AND MISTAKE. 873 
 
 there is little or no ground to impute bad faith to either of them in 
 afterwards averring that he was mistaken as to the law when he 
 entered into the contract. 6 * Those observations .vould apply, of 
 course, to all cases where the parties had been erroneously or falselv 
 advised as to the law by third persons. If a man, upon erroneous 
 advice as to the law applicable to known facts, or upon the erro- 
 neous conclusion of himself and another as to what that law is, 
 part with property under the impression or belief that the title 
 thereto is not in himself, equity will relieve him from the obliga- 
 tion or loss incurred by that act. This being so, no reason is per- 
 ceived why one who purchases property upon a mistaken represen- 
 tation or conclusion as to what is the law applicable to some fact 
 or facts upon which the validity of the title depends, should not be 
 afforded a like relief. If a clear, bona fide, mistake of the law be 
 established by aviderice other than the uncorroborated testimony 
 of the purchaser himself, there would seem to be no reasons of 
 public policy, convenience or expedience upon which relief should 
 be denied to him, unless it should be intended to punish him for 
 his mistake of the law. 
 
 The maxim that ignorance of the law excuses no one applies only 
 to the general public laws. It has no application to private or 
 special acts of the legislature, nor to foreign laws, nor to the laws 
 of the other States of the Union. 67 
 
 346. Erroneous construction of devise of grant. If the ig- 
 norance of the law applicable to some fact upon which the title 
 depends, consist in the erroneous construction of a devise or grant 
 
 M As an illustration, let it be supposed that the deed of a married woman, 
 not executed as the law requires, is void, and I, having the deed before my 
 eyes, accept a title derived through it without having the invalidity of the 
 title occur to my mind. Here there is a plain case of ignorance of the law. 
 But it is obviously not the same case as wnere the invalidity of the title 
 if suggested to me, and I declare my belief, or should be advised, that the 
 law does not invalidate the deed, and that the title is sufficient. In the first 
 case I am ignorant of any law affecting the title; in the second case I know 
 the letter of the law, but am mistaken in its application to my case. Whether 
 the legal consequences are to be the same in either case is another question. 
 See Prof. Bigelow's note, Story's Eq. Jur. (13th ed.) 113. 
 
 T 1 Story Eq. Jur. 140. King v. Doolittle. 1 Head (Tenn.), 77. Moreland 
 v. Atchison, 19 Tex. 303, 311. Havens v. Foster, 9 Pick. (Mass.) 112, 130; 
 19 Am. Dec. 353. Norton v. Marten. 3 Shep. (Me.) 45.
 
 874 MARKETABLE TITLE TO EEAL ESTATE. 
 
 through which title is claimed, it seems according to several Eng- 
 lish decisions, that the purchaser will be relieved. 58 It has been 
 held that the maxim " Ignorantia juris liaud excusat " has no ap- 
 plication when the word " jus " denotes private rights, 69 that is, 
 that a mistake as to the general law cannot be remedied in equity, 
 but that a mistake as to individual rights may be a ground of re- 
 lief. 60 It has also been said that the rule " ignorance of the law 
 is no excuse," applies only in criminal cases, 61 but that dictum is 
 not regarded as authority. 
 
 347. Where the true construction of the law is doubtful. 
 " Ignorance of the law," as used in the foregoing connection, means 
 ignorance of the law as settled by the decisions of the courts, 
 though such decisions be themselves erroneous, and be afterwards 
 reversed. A subsequent decision of a higher court in a different 
 case, giving a different exposition of a point of law from the one 
 declared and known when a settlement between parties takes place, 
 cannot have a retrospective effect, and overturn such settlement.' 2 
 
 58 Beauchamp v. Winn. L. R., 6 H. L. 234, Lord CHELMSFORD 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., 
 etc., R. Co. v. Johnson, 6 H. L. C. 810, 811, and Story's Eq. Jur. (13th ed.) 
 127. 
 
 "Per Lord WESTBURY in Cooper v. Phibbs, 2 H. L. 149; 17 Ir. Ch. 73. This 
 interpretation of the maxim was criticised in Hunt v. Rousmaniere, 1 Pet. 
 (U. S.) 15, and Wintermute v. Snyder, 3 N. J. Eq. 499. It is also obscure, 
 when we remember that private rights are governed by the general law. 
 
 "Bispham's Eq. (3d ed.) 187. 
 
 "Per Lord KING in Landsdowne v. Landsdowne, Mos. 364; criticised, 1 
 Story Eq. Jur. (13th ed.) 116. 
 
 82 Language of Chancellor KENT in Lyon v. Richmond, 2 Johns. Ch. (N. Y.) 
 59. Hardigree v. Mitchum, 51 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 
 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 tn"e 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."
 
 IN CASES OF FRAUD AND MISTAKE. 875 
 
 348. Misrepresentation of law by vendor. It is a general 
 rule that if a party is induced to execute a contract by representa- 
 tions which are untrue, but innocently made, he will bo entitled to 
 a rescission.* 3 Such a state of facts frequently appears in suits for 
 rescission by grantees alleging false and fraudulent representations 
 in respect to the title. If the vendor knew the representation was 
 false, the purchaser would be entitled to rescind on the ground of 
 fraud. If the representation was innocently made, then the pur- 
 chaser would be relieved on the ground of mistake.' 4 The ques- 
 tion 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, imposi- 
 tion, 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 leyis ncminem excusat. 65 
 
 The mistake, to be a ground for relief, must, of course, be the 
 mistake of both parties. The importance of this rule is chiefly felt 
 in those cases in which the p'urchaser seeks to have the contract 
 reformed. Its importance, where the rescission of an executed 
 contract is sought, is lessened by the consideration that if the 
 vendor, knowing of matters of law or fact rendering the title worth- 
 less, allowed the vendee to proceed without communicating such 
 knowledge, he would, as a general rule, be deemed guilty of fraud, 
 ajid upon that ground alone the vendee would be relieved. 
 
 See cases cited, ante, 105. Bigelow on Fraud, 488. 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 representa- 
 tion 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 Warvelle 
 Vend. 812. 
 
 M Fane v. Fane, L. R. 20 Eq. Cas. 698. 
 
 " 1 Beach Mod. Eq. Jur. 36; 1 Story Eq. Jur. (13th ed.) 133; Bispham 
 Eq. Princ. (3d ed.) 185.
 
 INDEX. 
 
 [REFERENCES ARE TO PACKS.] 
 
 Abatement of purchase money. (See 
 PURCHASE MONEY, COMPENSATION 
 FOB DEFECTS, SPECIFIC PERFORM- 
 ANCE. ) 
 
 Absence. 
 
 title as dependent on long-con- 
 tinued, of party in interest, 745 
 
 Abstract of title. 
 
 may be supplemented by written 
 
 evidences of title, 25 
 what it should show, 159 
 root of title, 161 
 duty to furnish, 162 
 property in, 165 
 time in which, should be furnished, 
 
 164 
 time in which to examine title and 
 
 verify, 165 
 
 summary of principal sources of ob- 
 jections to title, 167 
 objections apparent on face of 
 
 title papers, 171 
 objections apparent from the 
 
 public records, 176 
 objections arising from matters 
 in pat's, 180 
 
 Acceptance of grant. 
 
 purchaser is not estopped by, 552 
 
 Acceptance of title. (See WAIVER OF 
 OBJECTIONS. ) 
 
 Accident. (See MISTAKE.) 
 
 Acknowledgment of deeds. 
 
 acknowledgment, necessity for, 55 
 
 defective certificate makes title 
 
 doubtful, 56, 761 
 examples, 762 
 
 statutory form should be literally 
 followed, 56 
 
 venue of certificate, necessity for, 
 57 
 
 name of certifying officer should 
 appear, 57 
 
 purchaser cannot take acknowledg- 
 ment, 58 
 
 Acknowledgment of deeds Contin- 
 ued. 
 
 interested party cannot take ac- 
 knowledgment, 58 
 
 official designation of certifying ol- 
 ficer, 58, 59 
 
 certificate by de facto officer is 
 valid, 59 
 
 name of grantor should appear in 
 certificate, 60 
 
 acknowledgment by officers and 
 fiduciaries, 61 
 
 acknowledgment by attorney in 
 fact, 61 
 
 annexation of deed and reference 
 thereto. 61 
 
 jurisdiction of certifying officer, 62 
 
 personal acquaintance with grantor, 
 63 
 
 fact of acknowledgment must ap- 
 pear, 63 
 
 privy examination of wife nu-t 
 appear, 64 
 
 must recite explanation of content.* 
 of deed, 65 
 
 must recite declaration that act 
 was voluntary, 66 
 
 wish not to retract, 67 
 
 certificate should contain recog- 
 nition of seal, 68 
 
 certificate should be dated, 68 
 
 certificate must be signed, 68 
 
 abbreviation " J. P.," " N. P.," etc., 
 after signature, 69 
 
 certificate should be under officer ' 
 seal, 69 
 
 surplusage will not avoid certifi- 
 cate, 70 
 
 clerical mistakes, when immaterial, 
 70 
 
 certificate cannot be amended after 
 delivery, 72 
 
 acknowledgment cannot be proved 
 by parol, 72 
 
 certificate cannot be amended or 
 cured by evidence aliunde, 72 
 
 title as dependent on sufficiency of, 
 720, n. 
 
 Acreage. 
 
 warranty does not extend to, 33*5
 
 878 
 
 INDEX. 
 
 [REFERENCES ABE TO PAGES.] 
 
 Action. 
 
 against vendor for breach of con- 
 tract, 11, 18 
 for deceit, 3, 233 
 on covenants for title, 254 
 to recover back purchase nionev, 
 
 582, 588 
 to compel specific performance, 
 
 4/9 
 
 to rescind contract, 689 
 circuity of, avoided by estoppel, 
 
 529, 540 
 and by recoupment, 454 
 
 Acts of ownership. (See WAIVER OF 
 
 OBJECTIONS.) 
 
 not necessarily a waiver of object- 
 ion to title, 190 
 
 Acts of sovereignty. 
 
 vendor cannot be required to cov- 
 enant against, 153 
 
 constitute no breach of warranty, 
 354 
 
 Actual eviction. (See EVICTION.) 
 
 Actual seisin. 
 
 though wrongful, supports covenant 
 
 of seisin in certain States, 255 
 dissent from this doctrine, 256 
 
 Administrators. (See EXECUTOBS.) 
 
 Adverse claimant. (See EVICTION, 
 WARRANTY. ) 
 
 entry of, constitutes breach of war- 
 ranty, when, 358 
 
 surrender of possession to, 363 
 
 hostile assertion of title by, neces- 
 sary to constructive eviction, 
 367, 373 
 
 existence of, makes title unmarket- 
 able, 731 
 
 Adverse possession. 
 
 constitutes breach of covenant of 
 
 warranty, 360 
 title by, marketable, 737. (See 
 
 DOUBTFUL TITLE.) 
 title not marketable where premises 
 
 held adversely, 731 
 
 Adverse suit. (See COVENANT OF WAB I 
 
 BANTY. ) 
 covenantor must be notified of, 423 
 
 Affirmance. 
 
 of contract, remedies in, 3 
 
 by action at law, 11 
 
 by proceedings in equity, 479 
 
 After-acquired title. (See ESTOPPEL.) 
 enures to benefit of grantee, 518 
 grantee may be required to take, 
 534 
 
 Agent. 
 
 may insert in agreement provisions 
 
 as to the title, 22 
 usual covenants may be required 
 
 from, 154 
 
 fraud of, binds principal, 230 
 but principal not liable to action 
 
 of damages, 236 
 
 agent is personally liable in dam- 
 ages, 237 
 
 and criminally, in some juris- 
 dictions, 237 
 
 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 sell, 21 
 implication of good title rebutted 
 
 by notice of defect, 21 
 no implication of good title in 
 
 ministerial sales, 22 
 except in sale by assignee in 
 
 bankruptcy, 134 
 sale of lease implies good title in 
 
 landlord, 22 
 
 agreement to quitclaim will not 
 embrace after-acquired in- 
 terest, 21 
 
 no implication of title in assign- 
 ment of contract to sell, 22 
 nor in assignment of land office 
 
 certificate, 22 
 express agreements, 23 
 
 written contract usually entered 
 
 into, 23 
 this often specifies kind of title 
 
 to be conveyed, 23 
 contract for title deducible of 
 
 record, 24 
 stipulation that abstract shall 
 
 show title. 24 
 agreement to furnish satisfactory 
 
 abstract, 24 
 agreement that title shall be 
 
 " satisfactory," 724 
 terms and condition of sale, 25 
 verbal declarations of auctioneer, 
 
 25 
 
 agreement to make " good and 
 sufficient deed," 32
 
 INDEX. 
 
 [REFERENCES AEE TO PAGES. J 
 
 870 
 
 Agreement respecting the title Cou- 
 tinued. 
 
 means that deed must coffvey 
 
 indefeasible estate, 34 
 agreement to convey by quit 
 
 claim, 36 
 but such agreement must be 
 
 clear and unambiguous, 37 
 obliges purchaser to take the 
 . title such as it is, 38 
 
 agreement to take defective 
 title no waiver of right to 
 covenants, 37 
 agreement to sell " right, title 
 
 and interest," 38 
 obliges purchaser to take tl-.c 
 
 title such as it is, 38 
 but vendor must have ome 
 
 kind of title or right, 38 
 agreement to purchase " subject 
 
 to" liens, 38 
 
 adds amount of lien to the pur- 
 chase price, 38 
 
 but does not make purchaser 
 personally liable to lienor, 
 38 
 
 agreement that lien shall be do- 
 ducted from purchase money. 
 39 
 
 English rules respecting the con- 
 tract, 26 
 
 provisions dispensing with mar- 
 ketable title, must be clear, 
 28 
 purchaser bound by agreement to 
 
 take doubtful title, 28 
 common conditions of sale, 25, 
 
 27 
 can purchaser show aliunde, that 
 
 title is bad? 29 
 how conditions construed, 28 
 doubtful conditions construed in 
 
 favor of purchaser, 30 
 defects should be stated in the 
 
 particulars, 30 
 
 bidding without objection to con- 
 ditions, 30 
 stipulation that sale shall be 
 
 void if title defective, 31 
 declarations of auctioneer, when 
 
 admissible, 31 
 discrepancy between particulars 
 
 and deed referred to, 32 
 executory agreements merged n 
 deed and covenants. (See 
 MERGER. ) 
 mutual agreements to rescind, 377 
 
 (See RESCISSION.) 
 not within Statute of Frauds, 
 581 
 
 Agreement respecting the title Con- 
 tinued, 
 specific performance of agreements. 
 
 456 
 
 special agreements as to the title. 
 724 
 
 Ahen. 
 
 conveyance on behalf of, without 
 his request, title held market- 
 able, 772, n 
 
 Amendment, 
 of certificate of acknowledgment, 72 
 
 Annexation. 
 
 of certificate of acknowledgment lo 
 deed, 61 
 
 Application of purchase money. 
 
 duty to see to, makes title unmar- 
 ketable, 783 
 
 duty to see to, to be noted in ex- 
 amining title, 173 
 
 Apportionment. 
 
 of damages on breach of covenant 
 as to part, 409 
 
 Assets. 
 
 heir without, not bound by an- 
 cestor's warranty, 345 
 
 Assignee. 
 
 in bankruptcy, covenants by, 154 
 caveat emptor applies -to sale* 
 by, 134 
 
 exception in New York, 131 
 of covenants for title. (See tlie 
 
 several covenants.) 
 not bound by equities of which 
 
 he had no notice, 389 
 may sue in his own name, when. 
 
 378 
 
 of purchase-money note caution 
 with respect to rights of, 511 
 
 Assumpsit. 
 
 when may be brought by purchaser 
 
 on failure of title, 11, 12, 588 
 attacking vendor's title in action 
 
 of, 464 
 to try title, 464 
 
 objection that question of title 
 cannot be determined in, con- 
 troverted, 464 
 
 proper action to recover back pur- 
 chase money, 588 
 but cannot be maintained after 
 contract has been executed, 676 
 
 Assurance. (See FUBTHEB ASSURANCE.)
 
 880 
 
 INDEX. 
 
 [REFERENCES ABE TO PAGES.] 
 
 Attachment. 
 
 should be noted in examining title, 
 
 178 
 
 must be docketed to bind pur- 
 chaser, 178 
 is breach of covenant against in- 
 
 cumbrances, when, 291 
 is an objection to title, when, 781 
 
 Attestation of deed. 
 
 necessity for, in some States, 55 
 subscribing witness should be com- 
 petent, 55 
 
 Attorney in fact. 
 
 how deed should be executed by, 48 
 
 how deed should be acknowledged 
 by, 61 
 
 usual covenants may be required 
 from, 154 
 
 title as dependent on entry of satis- 
 faction by, 788 
 
 Auctioneer. 
 
 verbal declarations as to title ad- 
 missible, when, 25, 31 
 
 Bankruptcy. 
 
 caveat emptor applies to sale by 
 
 assignee, when, 134 
 covenants for title by bankrupt, 
 
 153 
 
 estoppel of bankrupt, 543 
 title as dependent on act of, 712, n, 
 
 730 
 effect of discharge, 348 
 
 Bargain, Loss of. (See DAMAGES, 
 MEASURE OF,) 
 
 Benefit. 
 
 of covenants, who entitled to (See 
 WARRANTY. ) 
 
 Bond for title. (See TITLE BOND.) 
 
 Breach. 
 
 of covenant for seisin, 259 
 against incumbrances, 289 
 for further assurance, 439 
 for quiet enjoyment aad of war- 
 ranty, 350 
 
 how assigned in pleading, 433 
 of contract, as ground for damages, 
 
 11 
 for rescission, 577 
 
 Building restrictions. 
 
 constitute breach of covenant 
 
 against incumbrances, 301 
 render title unmarketable, 776 
 
 Burden of proof. 
 
 in action for breach of contract, 16 
 
 covenant of seisin, 275 
 
 covenant against incumbrances, 
 326 
 
 covenant of warranty, 435 
 
 by vendor for specific perform- 
 ance, 693 
 
 by purchaser to recover back 
 purchase money, 594, 704 
 
 to rescind contract, 704 
 
 Caveat emptor. 
 
 meaning and application of this 
 
 maxim, 6, 75 
 does not apply between lessor and 
 
 lessee, 408 
 application to judicial sales, 76 
 
 what is a judicial sale, 76 
 
 when objections to title must be 
 made, 77 
 
 effect of confirmation of the sale, 
 77 
 
 effect of bid with notice of de- 
 fect, 79 
 
 when maxim does not apply to 
 judicial sale, 81 
 
 distinction between sale of 
 " land " and sale of " estate,*' 
 86 
 
 comments upon the maxim, 85 
 
 does not apply in cases of fraud, 
 86 
 
 several kinds of fraud affecting 
 judicial sale, 87 
 
 fraud will not excuse negligent 
 purchaser, 87 
 
 errors and irregularities in the 
 proceedings, 88 
 
 no objection to title thereunder, 
 88 
 
 unless the error goes to the ju- 
 risdiction, 90 
 
 what is " collateral attack," 95 
 
 respects in which jurisdiction 
 may be wanting, 96, 98 
 
 existence of jurisdictional facts 
 presumed, 99 
 
 extraneous evidence inadmissi- 
 ble, 99 
 
 record cannot be contradicted, 
 100 
 
 presumption of jurisdiction does 
 not apply to inferior courts, 
 101 
 
 when does want of jurisdiction 
 appear from record? 102 
 
 title as affected by matters oc- 
 curring after jurisdiction has 
 attached, 104
 
 INDEX. 
 
 881 
 
 [REFERENCES 
 
 Caveat emptor Continued. 
 
 fraud as ground for collateral 
 attack, 105 
 
 fraud in procuration of judg- 
 ment, 105 
 
 fraud in making judicial sale, 
 106 
 
 purchase by officer invalid, 107 
 application to sales by executors 
 and administrators, 108 
 
 distinction between sales under 
 a will and those under court 
 orders, 108 
 
 purchase by personal representa- 
 tive is void, 108 
 
 sales in pursuance of judicial 
 
 license, 109 
 regarded as judicial sales, 110 
 
 effect of fraud by representative, 
 111 
 
 when purchaser excused from 
 performance, 113 
 
 want of jurisdiction, errors and 
 
 irregularities, 114 
 application to sales by sheriffs, 
 tax officers, etc., 118 
 
 maxim strictly applies to sher- 
 iffs' sales, 118 
 
 purchaser cannot recover from 
 execution plaintiff, 122 
 
 when purchaser relieved, 123 
 
 effect of fraud by sheriff and 
 execution plaintiff, 125 
 
 title under void judgment, 126 
 
 title under void execution sale, 
 129 
 
 maxim strictly applies to tax 
 sales, 132 
 
 and to sales by trustees, asssig- 
 
 nees, etc., 132 
 
 subrogation of purchaser at ju- 
 dicial sale. 
 
 where sale is void, 134 
 
 where sale is valid, 140 
 
 fraud of purchaser destroys right 
 of, 141 
 
 Certificate of acknowledgment, requi- 
 sites. (See ACKNOWLEDGMENT.) 
 
 Cestui que trust. 
 
 covenants for title may be required 
 from, 154 
 
 Champerty. 
 
 as connected with doctrine of 
 actual seisin, 256 
 
 does not invalidate covenants for 
 title, 259 
 
 does not prevent enuring of after- 
 acquired title, when, 527 
 
 56 
 
 ABE TO PAGES.] 
 
 Chose in action. 
 
 right to damages for breach of 
 
 covenant is, 261 
 
 not assignable at common law, 263 
 but assignment enforced in equity, 
 -268 
 
 Circuity of action. 
 
 avoided by doctrine of estoppel and 
 
 after-acquired estate, 529, 540 
 
 by detention of purchase money 
 
 on breach of covenants, 454, 
 
 643 
 
 Collateral attack. (See CAVEAT EMP- 
 
 TOB.) 
 on judgment, as affecting question 
 
 of title, 95 
 definition of this term, 96 
 
 Common conditions. 
 
 of sale, what are, 25, 27 
 
 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, 822 
 
 but only where part lost is not 
 material, 822 
 
 and only where lien is inconsid- 
 erable, 822 
 
 equity will direct an inquiry on 
 these points, 823 
 
 purchase with notice of defect, 
 824 
 
 contract should provide for 
 abatement, 824 
 
 compensation decreed according 
 to relative value, 825 
 
 remedy of vendor is exclusively 
 in equity, 825 
 
 rule does not apply where objec- 
 tion goes to title to whole, l>2o 
 
 contract cannot be rescinded ir. 
 part, 825 
 
 rule where title to one of several 
 lots is bad, 826 
 
 rule does not apply where title 
 fails to considerable portion, 
 826 
 
 or to part indispensable to en- 
 joyment of residue, 828 
 
 or where no means for estimat- 
 ing compensation accurately, 
 828 
 
 purchaser cannot be compflVd to 
 accept a lesser estat", 829
 
 882 
 
 Compensation for defects of title 
 
 Continued. 
 
 iior to accept an undivided moie- 
 ty, 829 
 
 itlief denied vendor if guilt f of 
 fraud, 829 
 
 and where he has cvio<cl pur- 
 chaser, 829 
 
 purchaser cannot be compelled to 
 accept indemnity, 830 
 
 Concealment. (See FRAUD.) 
 
 of defects of title fraudulent, 
 when, 233 
 
 Concurrent remedies. 
 
 various, on failure of title, sum- 
 marized, 3 
 
 Condemnation of lands. 
 
 in eminent domain, no breach of 
 warranty, 355 
 
 Conditions, 
 of sale, 25, 27 
 
 performance of, as affecting title, 
 736 
 
 Confirmation of sale. (See CAVEAT 
 
 EMPTOB. ) 
 purchaser cannot object to title 
 
 after, 77 
 
 exceptions to this rule, 81 
 comments upon the rule, 83 
 
 Conflict of laws. 
 
 as to effect of covenants for title, 
 
 272 
 
 as to validity of deed, 528 
 as to measure of damages, 397 
 
 Consideration. 
 
 of deed may be shown, 402 
 expressed, not conclusive, 403 
 partial failure of, as defense to 
 
 action for purchase money, 461 
 want of, no defense to action on 
 
 warranty, 336 
 
 of sealed instrument may be in- 
 quired into, 605 
 
 Consideration money. (See DAMAGES, 
 
 MEASURE OF.) 
 usually measure of damages on 
 
 breach of contract, 212 
 and on breach of covenants, 395 
 that expressed may be contra- 
 dicted, 403 
 if none expressed, may be shown, 
 
 403 
 
 (See INTEREST AND PURCHASE 
 MONEY. ) 
 
 INDEX. 
 
 [REFERENCES ABE TO PAGES.] 
 Construction. 
 
 title as dependent on, of deed or 
 will, 712, 766 
 
 Constructive eviction. (See WAR- 
 RANTY, COVENANT OF.) 
 
 inability to get possession of prem- 
 ises, 360 
 
 compulsory surrender of premises, 
 363 
 
 purchase of outstanding title, 353, 
 369 
 
 Constructive notice. 
 
 of defective title from possession of 
 
 stranger, 182 
 
 from the public records, 199,241, 
 600, 668 
 
 Contingent remainder. 
 
 title dependent on, not marketable, 
 
 736 
 will not pass by quit claim, when, 
 
 547 
 
 Continuing breach, Doctrine of. 
 of covenant for seisin, 267 
 
 Contract. (See AGREEMENT.) 
 executory and executed, 3 
 executed, cannot be rescinded. 
 
 when, 6, 8, 630, 853 
 affirmance of, 3 (See ANALYSIS, 
 
 p. VII.) 
 
 action for breach of, 11 
 implied and express, as to title, 20, 
 
 23 
 
 usual provisions of, 23 
 to make " good and sufficient 
 
 deed," 32 
 measure of damages for breach of. 
 
 210 
 
 specific performance of, 479 
 merger of executory, in deed, 451, 
 
 656 
 rescission of, 577. (See ANALYSIS, 
 
 p. VII.) 
 
 Conveyance. (See DEED.) 
 
 tendered by vendor, sufficiency of, 
 40 
 
 Coparceners. 
 
 covenants implied in partition be- 
 tween, 344 
 
 Corporation. 
 
 how deed of, should be executed, 
 
 48, 49, n 
 how acknowledged, 61
 
 INDEX. 
 
 [REFERENCES ARE TO PAGES.] 
 
 883 
 
 Corporation Continued. 
 
 title as dependent on devise to 
 770, n 
 
 Costs. 
 
 of examining title may be recov- 
 ered, 14, 220, 593 
 
 recoverable as damages, when, 220 
 417, 421, 59.3 
 
 of perfecting the title, 797 
 
 of reference to master in chancery, 
 817 
 
 Counsel. 
 
 fees of, an element of damages, 
 220, 421 
 
 opinion of, not admissible on ques- 
 tion of good title, 710, 749 
 
 title to be satisfactory to pur- 
 chaser's, 726 
 
 Covenant, Action of. 
 
 when must be brought, 11 
 
 Covenantor. 
 
 may except incumbrance or par- 
 ticular claims from covenant, 
 282 
 
 tortious acts of, are breach of war- 
 ranty, 352 
 
 notice to, of suit of adverse claim- 
 ant, 423 
 
 Covenants. 
 
 mutual and dependent, when, 200, 
 485, 804 
 
 Covenants for title, 
 necessity for, 143 
 may be required notwithstanding 
 
 consent to take defective title, 37 
 what are the usual covenants for 
 
 title, 143 
 
 form of the usual covenants, 143, n 
 right to full or general covenants, 
 
 145, 147 
 from grantors in their own right, 
 
 147 
 
 from nominal party to deed, 151 
 from mortgagors, 152 
 from fiduciary grantors, 153 
 from ministerial grantors, 157 
 specific performance of, 514 
 operation by way of estoppel. (See 
 
 ESTOPPEL.) 
 
 detention of purchase money on 
 breach of, 442 
 
 (See PURCHASE MONEY, DETEN- 
 TION OF.) 
 
 where no covenants for title, 648 
 see the several covenants for title 
 for 
 
 Covenants for title Continued. 
 uHtdguability 
 what constitutes breach 
 measure of damages 
 when implied 
 
 persons bound nd benefited 
 qualifications and restriction!* 
 
 Creditors. 
 
 reformation of deed as against, 573 
 
 Damages. 
 
 when action for, on failure of title 
 
 improper, 15 
 
 when recoverable in equity, 187 
 may be recovered at law lor 
 
 breach of contract to convey 
 
 good title. 11, 210 
 but not when title N mirvlv 
 
 doubtful, 16 
 fraud and deceit in respect to 
 
 the title, 233 
 
 broach of covenants for title, 
 271, 314. 390 
 recoupment, 45* 
 
 Damages, Measure of. 
 
 what are nominal damages. 210 
 
 when too remote, 211 
 
 where vendor acts in good faith, 
 
 212 
 none for loss of bargain, 212 
 
 Flureau v. Thornhill, Hopkins v. 
 
 Lee, 212 
 
 barter contracts, 218 
 expenses of examining title, etc., 
 
 220 
 interest as element of damage*, 
 
 221 
 
 rents and profits as set-off, 221 
 no allowance for improvement*, 
 
 223 
 
 where vendor acts in bad faith, 224 
 where vendor expects lo obtain tne 
 
 title, 226 
 
 where vendor refuses to remove ob- 
 jections, 229 
 liquidated damages, 230 
 for breach of covenants for title. 
 (See the several covenants.) 
 
 Date. 
 
 not necessary to validity of deed, 44 
 of certificate of acknowledgment, 68 
 
 Death. 
 
 title as dependent on presumption 
 
 of, 745 
 Decedent. 
 
 title as dependent on insolvency of, 
 
 772 
 intestacy of, 771
 
 884 
 
 [DEFERENCES ABE TO PAGES.] 
 
 Deceit. (See FBAUD.) 
 
 action of, when it lies, 234 
 is concurrent with action 
 breach of contract, 13 
 
 for 
 
 Declaration. (See PLEADING, DECEIT.) 
 of auctioneer as to title, 25, 31 
 what should set forth, 
 
 in action on covenant for seisin, 
 
 279 
 covenant against incumbrances, 
 
 325 
 
 covenant of warranty, 433 
 for breach of contract, 14, 1C 
 for deceit, 252 
 
 to recover back purchase money, 
 257 
 
 Deed. 
 
 tendered bv vendor, sufficiency of, 
 40 
 
 vendor must prepare and tender, 41 
 
 must be acknowledged and ready 
 for record, 41 
 
 must contain covenants to which 
 purchaser entitled, 41 
 
 essential requisites of the convey- 
 ance, 42 
 
 informal or irregular, may be re- 
 jected, 42 
 
 may be corrected and reacknowl- 
 edged, 44 
 
 purchaser must accept, correcting 
 errors, 42 
 
 consideration should be recited in 
 some States, 43 
 
 should be written or printed on 
 paper or parchment, 43 
 
 should be dated, 44 
 
 dated on Sunday is valid, 44 
 
 must contain parties grantor and 
 grantee, 44 
 
 should set forth their Christian 
 names, 44 
 
 but name need not appear in grant- 
 ing clause, 45 
 
 void if grantee uncertain, 45 
 
 to fictitious person is void, 45 
 
 to partners should be to them as 
 individuals, 45 
 
 names of parties should be cor- 
 rectly stated, 46 
 
 owner of record must join in deed, 
 46 
 
 purchaser may reject deed of 
 stranger, 46 
 
 from third person, when sufficient, 
 47 
 
 all parties in interest should join 
 in, 47 
 
 Deed Continued. 
 
 executed by attorney, may be re- 
 jected, when, 48 
 
 bow executed by attorney or cor- 
 poration, 48 
 
 grantor should have power to con- 
 vey, 48 
 and be legally competent, 49 
 
 how partnership conveys, 49 
 
 should contain relinquishment of 
 dower right, 49 
 
 must contain proper words of con- 
 veyance, 49 
 
 but not necessarily in granting 
 clause, 50 
 
 must contain proper description of 
 
 premises, 50 
 
 sufficient if land can be identi- 
 fied, 51 
 
 examples in which, held void. 52 
 inadequate description no notice 
 
 to purchaser, 52 
 
 of " assets " will not pass lands, 
 52 
 
 interest conveyed should be cor- 
 rectly described, 53 
 
 of " right, title or interest," is a 
 mere release, 53 
 
 of greater interest than vendor has, 
 not void, 53 
 
 should be signed and sealed by 
 grantor, 54 
 
 seal should be recognized in body 
 of, 55 
 
 attestation of, by subscribing wit- 
 ness, 55. (See ACKNOWLEDG- 
 MENT. ) 
 
 should not contain unauthorized 
 restrictions or reservations, 73 
 
 containing blanks or erasures may 
 be rejected, 73 
 
 objections to, must be made when 
 
 tendered, 74 
 otherwise held to be waived, 74 
 
 objections to title apparent front 
 face of, 171 
 
 subsequent, is breach of warranty 
 in prior, 432 
 
 when passes after-acquired title, 
 518 
 
 when reformed in equity, 555 
 
 where void, purchase money may 
 be detained, 656, 679 
 
 title as dependent on construction 
 
 of, 766 
 as dependent on defective, 761 
 
 when rescinded, 853 
 
 tender of purchase money and de- 
 mand for, 200
 
 INDEX. 
 
 s*;, 
 
 Defeasance. 
 what is a, 177 
 records should be searched for, 177 
 
 Defective conveyance. (See REFORMA- 
 TION. ) 
 purchaser may reject, 40. (See 
 
 DEED.) 
 title as dependent on, 761 
 
 Defective title. (See DOUBTFUL TITLE.) 
 classification of various sources of, 
 
 171 
 effect of purchase with notice of, 
 
 195 
 rescission of contract in cases of, 
 
 577, 582, 689 
 detention of purchase money where. 
 
 (See PURCHASE MONEY.) 
 notice of, no bar to recovery on 
 
 warranty, 335 
 
 concealment of, a fraud, 237 
 at judicial and ministerial sales. 
 
 (See CAVEAT EMPTOR.) 
 
 Defenses of purchaser. 
 
 to action for damages, 18 
 
 suit for specific performance, 692 
 action to recover purchase money, 
 
 442, 582 
 
 Delay. 
 
 in suit for specific performance, 
 
 487 
 of vendor in performing contract, 
 
 810 
 
 in objecting to title, 191 
 in objecting to vendor's fraud, 194 
 
 Demand for deed. (See TENDER OF 
 
 PERFORMANCE. ) 
 as condition precedent to action for 
 
 damages, 200 
 when need not be made, 202 
 
 Deposit. 
 
 may be recovered if title is de- 
 fective, 586 
 Descent. 
 
 title as dependent on question of, 
 728, 730 
 
 Description. 
 
 of premises in deed, 50. (See 
 
 DEED, SUFFICIENCY OF.) 
 title as dependent on, 702, n. 
 
 Detention of purchase money. (See 
 PURCHASE MONEY, DETENTION OF.) 
 Devisee. 
 
 liability for damages on warranty 
 
 of devisor, 345 
 of covenantee entitled to benefit of 
 
 covenant, 349 
 
 title as dependent on devise, 766, n., 
 768, n. 
 
 [REFERENCES ARE TO PAOBS.] 
 
 Disturbance. 
 
 tortious, no breach of warranty, 
 
 350 
 unless by covenantor hiniHelf, :\')2 
 
 Doubtful title, 
 question of, may be made in a court 
 
 of law, 16 
 purchaser never required to accept, 
 
 705 
 
 meaning of the expression, 707 
 and of the expression " marketable 
 
 title," 706 
 mathematical certainty of perfect 
 
 title impossible, 707 
 doubts must not be captious or 
 
 frivolous, 707 
 may depend on question of law or 
 
 of fact, 709 
 this objection not usually made by 
 
 lessees, 710 
 question is for the court and not 
 
 for the jury, 710 
 opinions of counsel not admissible 
 
 on question of, 710, 749 
 cases in which title will be held 
 
 doubtful, 711 
 probability of litigation against 
 
 purchaser, 711 
 decision adverse to title which 
 
 court thinks wrong, 711 
 decision in favor of title which 
 
 court thinks wrong, 712 
 doubtful construction of instru- 
 ment, 712 
 
 where court would instruct jury 
 to find in favor of fact invali- 
 dating the title, 712 
 where the circumstances raise a 
 presumption of a fact fatal to 
 the title, 713 
 cases in which title will be held 
 
 not doubtful. 713 
 where there is no probability of 
 litigation against the pur- 
 chaser, 713 
 
 where there has been a decision 
 against the title which the 
 court holds wrong, 713 
 where the doubt depends on the 
 
 general law of the land, 713 
 or on a rule of construction un- 
 affected by context of instru- 
 ment, 714 
 or on a conclusive presumption 
 
 of fact, 714 
 or on mere suspicion of mala 
 
 fides, 715 
 
 question of doubtful title may be 
 made at law as well as in equity, 
 717
 
 886 
 
 INDEX. 
 
 [REFERENCES ARE TO PAGES.] 
 
 Doubtful title Continued. 
 
 judgment on question ol title does 
 
 not bind strangers, 721 
 this fact a strong ground of ob- 
 jection to title, 721 
 in some States vendor permitted to 
 
 bring in parties in interest, 723 
 special agreements respecting the 
 
 title, 724 
 effect of agreement for " good title 
 
 of record," 724 
 
 effect of agreement for " market- 
 able " title, 725 
 that title shall be satisfactory to 
 
 purchaser, 725 
 that title shall be satisfactory to 
 
 counsel, 725 
 mere expression of dissatisfaction 
 
 insufficient, 727 
 
 necessity of parol evidence to re- 
 move doubts renders title un- 
 marketable, 728 
 
 but title not necessarily doubtful 
 because dependent on facts 
 resting in parol, 728 
 sale implies a contract that title 
 shall be deducible of record, 
 729 
 
 court may inquire into facts on 
 
 which objection is rested, 730 
 
 purchaser cannot be compelled to 
 
 take equitable title, 731 
 nor title controverted in good faith 
 
 by adverse claimant, 731 
 mere claim without color of title, 
 
 no valid objection to title, 732 
 title in litigation is unmarketable, 
 
 734 
 but probability of litigation not 
 
 always a valid objection, 734 
 defeasibility of estate a sufficient 
 
 objection, 735 
 
 title perfected by Statute of Limi- 
 tations is marketable, 737 
 unless facts constituting the bar 
 
 are in dispute, 740 
 possession must have been ad- 
 verse, notorious, hostile and 
 uninterrupted, 740 
 with means of establishing that 
 fact if disputed in the future, 
 741 
 
 possession of purchaser is pro- 
 longation of that of vendor, 
 742 
 
 purchaser may reject, when con- 
 tract provides for " good title 
 of record," 741 
 
 adverse possession of mere tres- 
 passer insufficient, 741 
 
 Doubtful title Continued. 
 
 time sufficient to bar disabilities 
 
 must have elapsed, 742 
 burden on vendor to show prima 
 
 facie bar, 743 
 and on purchaser to show facts 
 
 removing the bar, 743 
 conclusive presumption from lapse 
 
 of time, 744 
 
 title as affected by other pre- 
 sumptions, 746 
 
 title dependent on question of no- 
 tice is unmarketable, 747 
 burden is on vendor to show title 
 prima facie free from doubt, 
 748 
 
 after which burden shifts to pur- 
 chaser to show doubts, 749 
 illustrations of foregoing principles, 
 
 749 
 
 general observations, 750 
 error and irregularities in ju- 
 dicial proceedings, 751 
 sales of the estates of persons 
 
 under disabilities, 755 
 want of parties to suits, 757 
 defective conveyances and ac- 
 knowledgments, 761 
 imperfect registration, 761 
 construction of deeds, wills, etc., 
 
 766 
 competency of parties to deeds, 
 
 767 
 title as dependent on intestacy, 
 
 771 
 and on insolvency of intestate, 
 
 772 
 
 incumbrances which make title un- 
 marketable, 774 
 admitted incumbrances, 775 
 easements, rights of way, 
 building restrictions, etc., 
 775 
 
 disputed incumbrances, 780 
 where doubts must be removed 
 
 by parol evidence, 780 
 Us pendens, 781 
 existence and enforcibility of 
 
 incumbrance, 782 
 duty to see to application of 
 
 purchase money, 783 
 improbability that incumbrance 
 
 will be enforced, 784 
 apparently unsatisfied incum- 
 brances, 786 
 authority to enter satisfaction, 
 
 788 
 
 encroachments and deficiencies, 
 789
 
 INDKX. 
 
 [BEFEBEXCES ARE TO PAf;i:S ] 
 
 887 
 
 Dower. 
 
 right of, no breach of covenant for 
 
 seizin, 261 
 
 inchoate right of, is breach of cove- 
 nant against incumbrances, 300 
 renders title unmarketable, 777 
 purchaser may have indemnity 
 
 against, semble, 496 
 purchaser should inquire as to ex- 
 istence of, 183 
 
 assignment of, is breach of war- 
 ranty, 359 
 
 Easements. 
 
 should be inquired for by pur- 
 chaser's counsel, 183 
 no breach of covenant for seizin, 
 
 261 
 
 constitute breach of covenant 
 
 against incumbrances, 297, 300 
 
 unless notorious and visible to 
 
 purchaser, 304 
 conflict of authority on this 
 
 point, 307, 308 
 in granted premises a breach of 
 
 warranty, 375 
 measure of damages, 413 
 render title unmarketable, 775 
 
 Ejtctment. 
 
 notice of, to covenantor and re- 
 quest to defend. 423 
 
 request to prosecute, 427 
 
 by vendor against vendee, when, 
 618 
 
 Election of remedies. 
 
 by purchaser, 3, 13, 234 
 is conclusive, when made, 14 
 
 Eminent domain. 
 
 exercise of, no breach of warranty, 
 354 
 
 purchaser charged with notice of 
 proceedings, 180 
 
 as breach of covenant against in- 
 cumbrances, 302, note 2. 
 
 Encroachments. 
 
 render title unmarketable, 789 
 
 Equitable estate. 
 
 owner of, not entitled to benefit of 
 covenants, 378 
 
 purchaser cannot be required to ac- 
 cept, 731 
 
 Equities. 
 
 doctrine of purchaser without no- 
 tice applies only to, 180 
 no application where legal title 
 
 is outstanding. 180 
 assignee of covenant not bound by, 
 between original parties, 389 
 
 Equity. <See SPECIFIC PERFORMANCE, 
 
 RESCISSION, KEKOBMATIOPT, Is 
 
 JUNCTION.) 
 
 equitable remedies in affirmance of 
 contract, 479 
 
 in rescission of contract, 089 
 will not compel purchaser to take 
 
 doubtful title, 705 
 equitable defenses allowed at law, 
 
 455 
 
 measure of damages in, 490 
 qitia tiinct, jurisdiction of, 837 
 
 Eiror of law. 
 
 title under judicial sale not af- 
 
 fected by, 88 
 renders title doubtful when, 712, 
 
 751 
 
 Estate. 
 
 to be considered in examination of 
 
 title, 172, 175 
 after-acquired, enures to grantee, 
 
 518 
 
 (See ESTOPPEL.) 
 purchaser not required to take 
 
 equitable, 731 
 nor defeasible, 735 
 covenant of seizin is broken if, it 
 defeasible, 259 
 
 Estate for life. 
 
 measure of damages where grantee 
 
 gets only an, 275, 412 
 outstanding, is breach of covenant 
 
 against incumbrances, 297 
 
 Estate for years. 
 
 outstanding, is breach of covenant 
 
 against incumbrances, 297 
 but not of covenant for seizin, 
 
 261 
 
 measure of damages on eviction 
 from, 406 
 
 Estoppel. 
 
 grantor estopped to assert after- 
 acquired title, 518 
 
 as between lessor and lessee, 520 
 
 as between execution debtor ami 
 purchaser under execution, 520 
 
 where grantor pays off lien as- 
 sumed by grantee, 520 
 
 where title of grantor disseizing 
 grantee, is cured by time, 520 
 
 estoppel binds heirs and devisees. 
 
 521 
 
 but only to the extent of asset* 
 received, 521 
 
 heirs not estopped by lineal or col- 
 lateral warranties, 521
 
 888 
 
 INDEX. 
 
 [REFERENCES ABE TO PAGES.] 
 
 Estoppel Continued. 
 
 warrantor estopped from setting up 
 
 resulting trust, 522 
 no estoppel where covenants have 
 
 been extinguished, 522 
 no estoppel in cases of fraud by 
 
 grantee, 523 
 after-acquired estate must be held 
 
 in same right, 524 
 estoppels must be mutual, 525 
 mortgagor estopped by his war- 
 ranty, 525 
 except in case of purcnase-money 
 
 mortgage, 525 
 mortgagor estopped as against a 
 
 subsequent mortgagee, 525 
 void conveyance operates no estop- 
 pel, 526 
 as where the deed is champert- 
 
 ous, 527 
 or executed in fraud of creditors, 
 
 527 
 
 or imperfectly executed, 528 
 exceptions, 528 
 conveyance of public lands, 528, 
 
 551 
 
 effect as actual transfer of after- 
 acquired estate, 529 
 subsequent purchaser from grantor 
 
 not affected, 530, 534 
 contrary rule in some of the 
 
 States, 531 
 subsequent purchaser with notice 
 
 is bound, 534 
 
 grantee must accept after-acquired 
 estate in lieu of damages, 534 
 unless he has been actually dis- 
 turbed in his possession, *535 
 Mr. Rawle's dissenting view, 536 
 but title must have been acquired 
 
 before action brought, 538 
 what covenants will pass after- 
 acquired estate, 539 
 any of the covenants unless 
 
 special or limited, 539 
 eircuity of action not avoided by 
 
 estoppel, when, 540 
 mere quit claim or release will 
 
 not operate an, 544 
 heir or remainderman conveying 
 by quit claim not estopped, 547 
 general covenants will not operate 
 
 an estoppel, when, 547 
 when quit-claim will operate an 
 
 estoppel, 549 
 
 Van Rensselaer v. Kearney, 549 
 effect of covenant of nonclaim by 
 
 way of estoppel, 550 
 quit-claim estops grantor of pub- 
 lic lands, when, 551 
 
 Estoppel Continued. 
 
 liduciary and ministerial grantors 
 
 not estopped, 551 
 execution debtor not estopped by 
 
 sheriff's deed, 551 
 grantee not estopped to deny title 
 
 of grantor, 552 
 but cannot set up adverse title 
 
 against him, 552, 697 
 except where vendor attempts to 
 
 convey public lands, 406, 552 
 or has been guilty of fraud re- 
 specting the title, 552 
 or where the grantee has been 
 
 evicted, 553 
 or where the contract has been 
 
 rescinded, 553 
 resume 1 of principles, 553 
 
 Eviction. (See WARRANTY, COVENANT 
 
 OF.) 
 
 not indispensable to purchaser's 
 action for damages, 17 
 
 not necessary to breach of covenant 
 for seizin, 256 
 
 actual and constructive, 355, 360 
 
 no compulsory acceptance of after- 
 acquired title in case of, 534 
 
 detention of purchase money as de- 
 pendent on, 602 
 
 where contract is executory. 602 
 executed, 442, 630, 837 
 
 Evidence. 
 
 parol, admissible to show true Con- 
 sideration, 402 
 
 of value of warranted premises 
 consideration money is, 402 
 
 of paramount title in evictor, no- 
 tice dispenses with, 423 
 
 parol, to show mistake in deed, 567 
 must be clear and positive, 568 
 to remove doubts as to title, 728 
 
 Examination of title. 
 
 should not be left to incompetent 
 
 person, 160 
 time allowed for, 165 
 classification of inquiries to be 
 
 made, 171 
 
 expenses of, 220, 593 
 consequences of omission of, 223, 
 
 241, 394 
 
 Exchange. 
 
 covenants implied in, 344 
 measure of damages for breach of 
 contract to, 218 
 
 Executed and executory contracts, 
 what are, 3 
 
 as regards detention of purchase 
 money, 442, 583. (See Cow- 
 TBACT.)
 
 INDEX. 
 
 [REFERENCES ABE TO PAGES.] 
 
 Execution. 
 
 of deed by corporation or agent, 4S 
 caveat emptor applies to sale un- 
 der, 57. (See CAVEAT EMPTOH. ) 
 
 Executors and administrators. 
 
 caveat emptor applies to sales b\, 
 
 108. (See CAVEAT EMPTOR.) 
 purchase of trust subject by, is 
 
 void, 106 
 should enter into special covenants 
 
 only, 153 
 
 personally liable on general cove- 
 nants, 155 
 
 liable on testator's covenant of war- 
 ranty, 348 
 entitled to benefit of, when, 348 
 
 Expenses. 
 
 of examining title may be re- 
 covered, 220, 59:5 
 of perfecting the title, 405, 422 
 of defending the title, 221, 417, 421 
 
 Experts. 
 
 opinion of, as to title not admis- 
 sible, 749 
 
 Express contract, i Sec AGREEMENT, 
 CONTRACT. ) 
 
 Extinguishment of covenants. 
 
 by reconveyance to covenantor, 389 
 
 Fact. 
 
 title as dependent on question of, 
 
 710, 713. 714 
 
 mistake of, as ground for reforma- 
 tion of deed, 5.')S 
 for rescission of executed con- 
 tract, 858 
 
 Failure of title. (See DEFECTIVE 
 
 TITLE and ANALYSIS, p. VII.) 
 right to recover back or detain pur- 
 chase money on. (See PURCHASE 
 MONEY, DETENTION OF.) 
 
 False statements. (See FRAUD, DE- 
 CEIT.) 
 
 Fees. 
 
 of counsel for examining title, lia- 
 bility of vendor for, 220, 593 
 in defending title, 221, 417, 421 
 
 Fee simple. 
 
 estate sold presumed to be a, 21 
 
 Fence. 
 
 duty to maintain, is an incum- 
 brance, 301 
 
 Fiduciary vendors. 
 
 caveat emptor applies to sales by, 
 
 108. (See CAVEAT EMPTOR.) 
 covenants for title by, 153 
 
 Forged instrument. 
 
 lying in chain of title, 173, 175, 1X2 
 registration does not protect pur- 
 chaser, 182 
 
 Fraud. 
 
 as ground for collateral attack, 105 
 
 of vendor, effect on purchaser'* 
 rights, 233 
 
 purchaser may elect to rescind or 
 affirm, 234 
 
 fraud without injury gives no ac- 
 tion, 235 
 
 fraud of agent binds principal, 236. 
 (See AGENT.) 
 
 what constitutes fraud respecting 
 
 the title, 237 
 
 concealment of defects, 238 
 defects apparent of record, 241 
 willful or careless assertions, 24! 
 existence of fraudulent intent. 
 
 248 
 statement of opinion, 249 
 
 facts showing fraud must be al- 
 leged, 252 
 
 burden of proof is on purchaser, 2.V5 
 
 fraud not merged in conveyance, 
 661 
 
 of vendor bars right to perfect the 
 title, 805 
 
 as affecting title under judicial or 
 ministerial sale. (See CAVEAT 
 EMPTOH. ) 
 
 as ground for detaining or recov- 
 ering back purchase money, 680. 
 834 
 
 right to rescind, waived when, 685 
 
 Fraudulent conveyance. 
 
 title derived under, not marketable. 
 716, n., 748 
 
 remote purchaser under, chargcu 
 with notice, when, 174 
 
 will sustain transfer of after ac- 
 quired title by estoppel, when, 
 527 
 
 Further assurance, Covenant of. 
 form and effect, 438, 439 
 what constitutes breach, 439 
 effect by way of estoppel, 439 
 runs with the land. 440 
 measure of damages for breach, 441 
 
 " Good and sufficient deed." 
 
 effect of agreement to make, 3~2 
 
 Good right to convey. (See SEISIN.) 
 
 " Grant, bargain and sell." 
 covenants implied from these words. 
 257, 281, 341
 
 890 
 
 IXDEX. 
 
 [REFERENCES ARE TO PAGES.] 
 
 Guardian. 
 
 caveat emptor applies to sales by, 
 
 134 
 title as affected by acts or powers 
 
 of, 755, 756, n. 
 in judicial proceedings, 756, n. 
 
 B eirs. 
 
 liable on covenants of ancestor, 
 
 345 
 entitled to benefit of, when, 257, 
 
 345 
 word, omitted from deed may be 
 
 supplied, 563, n. 
 
 title as dependent on fact of in- 
 heritance, 706, 728 
 
 Highway. 
 
 no breach of covenant of seisin, 
 
 260 
 is breach of covenant against in- 
 
 cumbrance, when, 301 
 conflict of authority on this 
 
 point, 304 
 
 notice of, as affecting right to re- 
 scind, 197 
 
 Husband and wife. (See MARRIED 
 WOMEN. ) 
 
 Idem sonans. 
 
 cases of, as affecting title, 763 
 
 Implied covenants. 
 
 from words " grant, bargain and 
 
 sell," 257, 281, 341 
 in a lease, 343 
 in an exchange, 344 
 in partition, 344 
 none from mere recitals in deed, 
 
 344 
 
 Improvements. 
 
 purchaser not allowed damages for 
 
 loss of, 223, 272, 394, 413 
 except in cases of fraud, 395 
 and sometimes in equity, 701 
 and except in certain States, 398 
 
 Incapacity. 
 
 of parties, title as dependent on, 
 172, 182, 767 
 
 Incumbrance. ( See INCUMBBANCE, 
 COVENANT AGAINST, PURCHASE 
 MONEY, DETENTION OF.) 
 operates no change in title, 2 
 definition, 289 
 what constitutes, 290, 776 
 to be searched for in examining 
 
 title, 178 
 
 concealment of, is fraud, 237, 241 
 as ground for detention of purchase 
 money 596 
 
 Incumbrance Continued. 
 
 where contract is executory, 59(5 
 where contract is executed, 442, 
 469 
 
 cannot be verbally excepted from 
 covenants, 283 
 
 renders title unmarketable, 776 
 
 may be discharged out of purchase 
 money, 509 
 
 when subject to compensation or 
 indemnity, 491, 496, 823, 827 
 
 vendor may be compelled to re- 
 move, 483, 516 
 
 right of vendor to remove, 792 
 
 subrogation of purchaser to bene- 
 fit of, 512 
 
 Incumbrance, Covenant against, 
 form and effect of, 280 
 implied from certain words, 281 
 distinguished from covenant to dis- 
 charge incumbrance, 281 
 restrictions and exceptions, 282 
 must be expressed in conveyance, 
 
 283 
 
 cannot be shown by parol, 283 
 contrary rule in Indiana, 285, n. 
 assumption of mortgage by grantee, 
 
 285 
 effect of conveyance " subject to " 
 
 mortgage, 285 
 
 what constitutes breach of, 289 
 mere existence of incumbrance 
 
 operates breach, 289 
 definition of term " incumbrance," 
 
 290 
 
 pecuniary charges or liens, 290 
 notice of same immaterial, 290 
 when taxes constitute breach, 
 
 292 
 
 outstanding estate in the prem- 
 ises, 297 
 easements or physical incum- 
 
 brances, 300 
 
 building restrictions, 301 
 party walls, 303 
 notice of easement as affecting 
 
 breach, 304 
 conflict of decision on this point, 
 
 307 
 
 runs with land for benefit of as- 
 signee, 310 
 
 contrary rule in some States, 312 
 measure of damages for breach of, 
 
 314 
 
 nominal, where no actual loss, 314 
 judgment a bar to future re- 
 covery, 316, 324 
 
 where grantee discharges incum- 
 brance, 317 
 
 amount paid must have been rea- 
 sonable, 318
 
 INDEX. 
 
 [REFERENCES ARE TO PAGES.] 
 
 SIM 
 
 Incumbrance, covenant against Con- 
 tinued, 
 covenantee not bound to redeem, 
 
 320 
 damages cannot exceed purchase 
 
 money and interest, 320 
 damages where incuinbrance is 
 
 permanent, 322 
 of lessee against lessor, 323 
 pleadings must describe incum- 
 
 brance, 325 
 
 discharge of same must be al- 
 leged, 326 
 
 burden of proof on plaintiff, 326 
 detention of purchase money on 
 breach of covenant, 469 
 
 Indemnity. 
 
 as general rule purchaser cannot 
 
 demand, 495 
 
 nor be required to accept, 830 
 against inchoate right of dower, 
 
 496 
 
 Infant. 
 
 title as dependent on rights of, 
 
 755, 756, n. 
 infancy of grantor in chain of 
 
 title, 182 
 
 Inheritance. 
 
 words of, in deed, supplied, 563, n. 
 title, as dependent on question of, 
 183, 728 
 
 Injunction against collection of pur- 
 chase money, 
 where the contract is executory, 
 
 605 
 
 when the contract has been exe- 
 cuted, 832 
 
 general observations, 832 
 where the grantor was guilty of 
 
 fraud, 834 
 
 injunction granted though no 
 breach of covenants has oc- 
 curred, 834 
 so, also, in case of mistake, 
 
 834 
 grantor cannot be forced to 
 
 action for damages, 835 
 grantee setting up fraud as de- 
 .fense to action for purchase 
 money cannot have injunc- 
 tion, '835 
 want of opportunity to defend 
 
 at law, 835 
 
 injunction denied, when de- 
 fense may be made at 
 law. 836 
 
 or might have been so made, 
 836 
 
 Injunction against collection of pur- 
 chase money Continued. 
 
 but granted if defense pre- 
 vented by fraud, accident or 
 mistake, 836 
 
 and where no opportunity for 
 
 defense, 836 
 as in case of enforcement of 
 
 deed or trust, 836 
 or in strict foreclosure of 
 
 mortgage, 836 
 
 and in case of after-discov- 
 ered facts, 837 
 
 remedy on covenants must lx> 
 
 unavailing, 837 
 
 where grantor is insolvent or a 
 non-resident, granted, 837 
 
 though there lias been no 
 breach of covenants. 837 
 
 this upon the principlt of quia 
 timet, 837 
 
 but suit must hnvo been prose- 
 cuted or threatened by ad- 
 verse claimant, 837 
 
 except in certain of the States, 
 849 
 
 insolvency must be alleged in 
 the bill, 839 
 
 transfer of negotiable securi- 
 ties, will be enjoined, 840 
 
 no perpetual injunction where 
 purchaser must accept com- 
 pensation, 841 
 
 bill must allege clear, out- 
 standing title, 841 
 
 and that claimant is prosecut- 
 ing or threatening suit, 841 
 
 mere doubts as to the title in- 
 sufficient, 841 
 
 complainant must confess judg- 
 ment at law, when, 842 
 
 injunction granted against 
 
 transferee of note, 842 
 
 unless purchaser for value. 
 
 without notice, etc, 842 
 
 if injunction perpetual, plain- 
 tiff should reconvey, 842 
 where estate is incumbered. S4:'. 
 
 unimportance of non-residence 
 or insolvency of grantor, 
 843 
 
 grantee cannot pay off lien ami 
 net it up against grantor. 
 844 
 
 incumbrance no ground for re- 
 scission. 844 
 
 injunction against foreclosure 
 of purchase-money mortu'.';- 
 denied, 844 
 
 except in case of prior incum- 
 brance, 84. ">
 
 892 
 
 INDEX. 
 
 [REFERENCES ARE TO PAGES.] 
 
 Judgments. 
 
 Injunction against collection of puv- 
 chase money Continued, 
 denied where no covenants for 
 
 title, 845 
 presumptions against grantee in 
 
 such cases, 846 
 
 temporary and perpetual injunc- 
 tion, 846 
 effect of perpetual injunction, 
 
 847 
 
 damages on dissolution of in- 
 junction, 847 
 resumS, 847 
 
 where no present right to re- 
 cover substantial damages, 
 849 
 
 absolute want of title as 
 ground of injunction, 849 
 \\ithout regard to non-resi- 
 dency or insolvency of 
 grantor, 849 
 
 or to threats or prosecution 
 of suit by adverse claim- 
 ant, 849 
 
 or to reconveyance by gran- 
 tee, 849 
 this doctrine enforced in 
 
 Va. and W. Va., 850 
 not recognized elsewhere, 
 
 850 
 
 rested upon ground of inade- 
 quacy of remedy at law, 
 850 
 
 and as protection to pur- 
 chaser under a trust, 851 
 but complaint must show a 
 clear outstanding title, 
 851 
 
 mere doubts as to title in- 
 sufficient, 851 
 
 Insolvency. 
 
 of covenantor as ground for de- 
 taining purchase money, 837 
 
 Installments. 
 
 tender of deed where purchase 
 money payable in, 206 
 
 Interest. 
 
 as element of damages, 221, 414, 
 
 490 
 set off against rents and profits, 
 
 when, 221 
 on purchase money while title is 
 
 being perfected, 819 
 
 Interlineations. 
 
 to be noted in examining title, 173 
 
 Joint tenants. 
 
 should covenant severally, 153 
 
 where void, title under, 126 
 subrogation to benefit of, 135, 512 
 should be noted in examining title, 
 
 177 
 no breach of covenant for seisin, 
 
 261 
 are breach of covenant against in- 
 
 cumbrances, 290 
 of eviction without dispossession 
 
 no breach of warranty, 365 
 several separate, may be entered 
 
 on warranty, when, 379 
 when conclusive evidence of para- 
 mount title, 423 
 apparently unsatisfied render title 
 
 unmarketable, 786 
 must be confessed on application 
 
 for injunction, 842 
 
 Judicial sales. (See CAVEAT EMPTOR. ) 
 caveat emptor applies to, 76 
 title as dependent on validity of, 
 
 88, 751, 753, 755 
 not affected by reversal of de- 
 cree, 89 
 
 purchaser at, entitled to benefit of 
 covenants, 382 
 
 Jurisdiction. 
 
 of officer taking certificate of ac- 
 knowledgment, 57 
 
 want of. exposes judgment to col- 
 lateral attack, 93 
 
 Jury. 
 
 fact of notice to defend ejectment, 
 question for, 430 
 
 Laches. 
 
 in objecting to title is waiver of ob- 
 jection, 191 
 
 exceptions to this rule, 192 
 in suing for reformation of deed, 
 
 569 
 mistakes resulting from, not re- 
 
 lievable, 566, 865 
 of vendor in perfecting title, bars 
 
 his right, 807 
 
 Land. 
 
 will not pass under word " assets," 
 52 
 
 warranty does not extend to quan- 
 tity o'f, 336 
 
 value of, at time of sale is meas- 
 ure of damages, 212, 389 
 
 Landlord and tenant. (See LEASE.) 
 
 Lease. 
 
 lessor must covenant generally, 152 
 to be noted in examination of 
 title, 176
 
 INDEX. 
 
 (REFERENCES ARE TO PAGES.] 
 
 89:! 
 
 Lease Continued, 
 outstanding, is no breach of cove- 
 nant of seisin, 262 
 but is breach of covenant uguin>t 
 
 incumbrances, 297 
 covenant implied in lease, 343 
 tortious disturbances by lessor, 351 
 title of lessor not usually exam- 
 ined, 152, 408, 710 
 damages on eviction of lessee, 406 
 lessee may recover back rent, when, 
 408 
 
 Legal estate. 
 
 vendor need not have, but must 
 obtain, 483, 795, 806 
 
 Legal process. 
 
 not necessary to eviction of cove- 
 nantee, 358 
 
 Lien. 
 
 should be noted in examination of 
 
 title, 177, 178 
 is breach of covenant against in- 
 
 cumbrance, 290 
 of purchaser on failure of title, 
 
 624 
 
 does not exist if vendor is solv- 
 ent, 625 
 
 nor as against purchaser with- 
 out notice, 625 
 
 Life estate. (See ESTATE FOB LIFE.) 
 
 Limitations, Statute of. 
 
 begins to run on covenant of seisin, 
 
 when, 269 
 on covenant of warranty, when, 
 
 357 
 
 title under, is marketable, 737. 
 (See DOUBTFUL TITLE.) 
 
 liquidated damages. 
 
 in excess of purchase money may 
 
 be recovered, 230 
 but amount must be reasonable* 
 
 230 
 
 and not a penalty or forfeiture, 
 231 
 
 Lis pendens. 
 
 should be noted in examining title, 
 
 178, 179 
 
 not an incumbrance, when, 289 
 renders title unmarketable, when, 
 
 781 
 
 Loss of bargain. (See DAMAGES, 
 
 MEASURE OF.) 
 Lots. 
 
 failure of title to part of several, 
 826 
 
 Marketable title. (See DOUBTFUL 
 
 TITLE. ) 
 original technical meaning of thi* 
 
 expression, 706 
 modern use of this expression. 9, 
 
 706 
 doctrine of, no longer restricted to 
 
 equity, 717 
 
 purchaser may demand, 705 
 question of, is for the court, 710, 
 
 749 
 opinions of counsel on question. 
 
 not admissible, 710 
 classification of cases of, 711, 749 
 classification of cases of unmarket- 
 able, 713, 749 
 title by adverse possession, 737 
 
 Married women. (See DOWER.) 
 
 right to require covenants from, 1.V2 
 
 bound by covenants, 344 
 
 estopped by their covenants in 
 some States, 542 
 
 acknowledgment of deed. (See 
 ACKNOWLEDGMENT. ) 
 
 when deeds of, will be reformed, 
 576 
 
 coverture to be noted in examin- 
 ing title, 182 
 
 Mechanic's lien. 
 
 to be noted in examination of title. 
 178 
 
 Meiger. 
 
 of executory contract in deed, 451. 
 
 656 
 of verbal stipulations as to title 
 
 in deed, 451, 656 
 cases in which merger does not 
 occur collateral stipulations of 
 which deed not necessarily 
 performance, 451 
 where deed is void, 654 
 rule in Pennsylvania, 658 
 rule in Indiana. 285, n. 
 fraud not merged in deed, 661 
 
 Mesne profits. (See INTEREST.) 
 
 as set off against purchaser's de- 
 Tim ml for interest, 221, 414 
 purchaser not liable to vendor for, 
 when, 221, 698 
 
 Metes and bounds. 
 
 not indispensable to description in 
 
 deed, 51 
 
 where uncertain or impossible, 5 
 warranty does not extend to, 336 
 
 Ministerial vendors. 
 
 car eat em p tor applies to sales by, 
 76, 108, 118, 132
 
 894 
 
 INDEX. 
 
 [EEFEBENCES ABE TO PAGES.] 
 
 Ministerial vendors Continued, 
 general covenants not required 
 from, 157 
 
 Misnomer. 
 
 as objection to sufficiency of deed, 
 45 
 
 as objection to sufficiency of cer- 
 tificate of acknowledgment, 60 
 
 title as dependent on, 761, n. 
 
 Misrepresentations. (See FBAUD, DE- 
 CEIT.) 
 
 Mistake. 
 
 as ground for reformation of deed. 
 
 (See REFORMATION.) 
 rescission of executed contract, 853, 
 
 858 
 
 mistake of fact, 858 
 . mistake as to fact on which 
 title depends, 859 
 
 as where estate has been di- 
 vested by happening of some 
 event of which the parties 
 are ignorant, 859 
 
 and where subject-matter or 
 contract has no existence, 
 859 
 
 but mere ignorance of out- 
 standing title in a stranger 
 no ground for relief, 860 
 
 except when grantee lias pur- 
 chased his own estate, igno- 
 rant of his title, 863 
 
 mistake cannot be availed of 
 at law, 863 
 
 mistake as to existence of the 
 premises, 864 
 
 where deed does not convey 
 the lands purchased, 864 
 
 grantee must reconvey the 
 premises, 865 
 
 mistake must not have arisen 
 from negligence, 865 
 
 mistake must have been ma- 
 terial, 866 
 
 mistakes as to quantity, 866 
 mistake of law, 867 
 
 in many cases no ground for 
 relief, 867 
 
 but relief granted in some 
 cases, 868 
 
 distinction between ignorance 
 of, and mistake of law, 870 
 
 " ignorance of law does not 
 excuse " applies only to the 
 general public laws, 873 
 
 erroneous construction of de- 
 vise or grant, 873 
 
 where true construction of the 
 law is doubtful, 874 
 
 Mistake Continued. 
 
 misrepresentation of law by 
 
 vendor, 875 
 mistake must be mutual, 875 
 
 Money had and received. 
 
 action for, where title has failed, 
 
 588 
 expenses of examining title not 
 
 recoverable in, 593 
 
 Mortgage. (See INCUMBBANCE, PUB- 
 CHASE MONEY.) 
 general covenants must be inserted 
 
 in, 152 
 
 to be noted in examining title, 177 
 in form an absolute deed, pur- 
 chaser without notice of, 181 
 operates no breach of covenant of 
 
 seisin, 260 
 is breach of covenant against in- 
 
 cumbrances, 290 
 
 excepted by parol from cove- 
 nants, 283 
 effect of purchase " subject to," 
 
 284 
 
 eviction under, is breach of cove- 
 nant of warranty, 372 
 for purchase money, foreclosure of, 
 where title has failed, 457, 844 
 mortgagor estopped by covenants 
 
 in, 525 
 unless given for purchase monev, 
 
 386, 525 
 detention of purchase money where, 
 
 exists, 469, 596 
 
 renders title unmarketable, when, 
 780, 786 
 
 Municipal corporation. 
 
 cannot warrant title, 349 
 
 Negligence. (See LACHES.) 
 
 mistake resulting from, no ground 
 
 for reformation, 566 
 nor for rescission, 865 
 
 Nominal damages. (See DAMAGES, 
 
 MEASUBE OF. ) 
 what are, 210 
 for inability to convey good title, 
 
 212 
 on breach of covenant for seisin, 
 
 when, 274 
 
 against incumbrances, 314 
 judgment for, bars second action 
 
 on same covenant, 316 
 but not on other covenants, 274 
 
 Non-claim, Covenant of. 
 
 equivalent to covenant of special 
 warranty, 332
 
 INDEX. 
 
 895 
 
 [REFERENCES ABE TO PAGES.] 
 
 Non-claim, Covenants Of Continued, 
 will operate an estoppel in some 
 States, 550 
 
 Non-residence. 
 
 as ground for purchaser's lien on 
 
 the premises, 625 
 as ground for enjoining collection 
 
 of purchase money, 837 
 title as dependent on proceedings 
 
 in case of, 753, n. 
 
 Notice. 
 
 of incumbrance, wnen immaterial 
 to action for breach of cove- 
 nant, 290 
 
 when material in case of phys- 
 ical incumbrance, 304 
 of defect does not affect liability 
 
 on warranty, 335 
 as affecting right to rescind con- 
 tract, 195, 453, 600 
 rule in Texas and Pennsylvania, 
 
 472, 666, 668 
 
 to covenantor of ejectment and re- 
 quest to defend, 423. (See 
 WARRANTY.) 
 not indispensable to recovery on 
 
 warranty, 430 
 necessary to affect assignee with 
 
 equities, 389 
 
 purchaser of after-required estate 
 from covenantor without pro- 
 tected, 530. (See ESTOPPEL.) 
 deed recorded prior to inception of 
 
 grantor's title, not, 530 
 of intent to rescind, 578 
 time made material by, 813 
 record as notice to purchaser, 241, 
 668 
 
 Objections. 
 
 to title, waiver of. (See WAIVER 
 
 OF OBJECTIONS.) 
 summary of different sources of, 
 
 176 
 to deed, should be seasonably made, 
 
 73 
 and to abstract of title, 167 
 
 Officer. 
 
 of corporation, should execute deed, 
 
 how, 48 
 
 how acknowledge, 61 
 caveat emptor applies to sales by, 
 
 118, 132 
 covenants cannot be required from 
 
 157 
 
 taking certificate of acknowledg 
 ment. (See ACKNOWLEDGMENT.) 
 title as dependent on powers of 
 762, n. 
 
 Omissions. (See MISTAKE.) 
 
 from deed as ground for reforma- 
 tion, 558 
 
 Opinion. 
 
 mere expression of, as to title, no 
 evidence of fraud, 249 
 
 of conveyancing counsel inadmis- 
 sible on question of title, 710, 
 749 
 
 Orphan's court sales. (See CAVEAT 
 EMPTOB. ) 
 
 Paramount title. 
 
 in a stranger, no breach of war- 
 ranty, 355 
 
 must be hoatilely asserted to con- 
 stitute breach of warranty, 367, 
 373 
 
 notice to defend ejectment dis- 
 penses with proof of, in evictor, 
 423 
 
 need not be set forth with par- 
 ticularity in pleading, 434 
 but eviction under must be 
 averred, 434 
 
 outstanding, as ground for detain- 
 ing purchase money, 451, 605, 630. 
 832. (See PURCHASE MONET or 
 LANDS. ) 
 
 purchaser may buy in, 506 
 
 but cannot use to defeat vendor's 
 
 title, 552 
 exception, 552 
 
 Farol agreements. (See MERGER.) 
 as to removal or assumption of in- 
 cumbrance, 283 
 
 as to title, merged in deed, when. 
 451, 656 
 
 Partial failure of consideration, 
 as ground for detaining purchase 
 money, 461 
 
 Particulars of sale. 
 
 usually prepared and circulated 
 
 before day of sale, 27 
 should state defects of title, 30 
 
 Parties. 
 
 names of, must be inserted in 
 deed, 44 
 
 competency of, to be noted in ex- 
 amining title, 172, 175, 182 
 
 bound and benefited by covenant 
 of warranty, 344 
 
 to suit for rescission, 704 
 
 title as dependent on want of, to 
 
 suit, 757 
 competency of, to deed, 767
 
 896 
 
 INDEX. 
 
 [REFERENCES ABE TO PAGES.] 
 
 Partition. 
 
 covenants implied in, when, 344 
 title as dependent on proceedings 
 in, 752, 754, n. 
 
 Partners. (See JOINT TENANTS, TEN- 
 ANTS IN COMMON.) 
 how should execute deed, 49 
 how deed executed to, 46 
 
 Party wall. 
 
 is a breach of covenant against in- 
 
 cumbrances, when, 303 
 when not, 303 
 
 renders title unmarketable, when, 
 779 
 
 Patent defects. 
 
 vendor not bound to call attention 
 to, 240 
 
 Patents of land. 
 
 lying in chain of vendor's title, 
 * 174 
 
 purchaser charged with notice of 
 defect in, when, 174 
 
 Payment. (See PUBCHASE MONEY, 
 
 DETENTION OF.) 
 
 of purchase money is waiver of ob- 
 jection to title, when, 193 
 as condition precedent to action 
 
 for damages, 15 
 suit for specific performance, 
 485 
 
 Perpetuities. 
 
 to be noted in examining title, 175 
 
 Personal expenses. 
 
 when allowed as damages on 
 breach of warranty, 422 
 
 Personal representatives. (See EX- 
 ECUTORS AND ADMINISTBATOBS.) 
 
 Few assessments. 
 
 when no breach of covenant against 
 incumbrances, 293, n. 
 
 Pleadings. (See the several covemants.) 
 
 Possession. 
 
 taking, when waiver of objection 
 
 to title, 189 
 inability to get, is a constructive 
 
 eviction, 360 
 of stranger is notice to purchaser, 
 
 182 
 must be restored to vendor, when, 
 
 615 
 
 vendor may recover, when, 618 
 title by adverse, is marketable, 737 
 detention of purchase money where, 
 
 undisturbed, 630 
 
 Possibility. 
 
 bare, when no objection to title, 
 707, 743, n., 755, n. 
 
 Power. 
 
 of parties to be noted in examin- 
 ing title, 48, 172, 175, 182 
 
 defective execution of statutory, 
 not aided in equity, 569 
 
 title as dependent on, and compe- 
 tency of parties, 767, 769, n. 
 
 Power of attorney. 
 
 validity of deed executed under, 48 
 
 to execute gives power to acknowl- 
 edge deed, 61 
 
 title, as dependent upon exercise 
 of, 771, n. 
 
 entry of satisfaction under. 788 
 
 Presumptions. 
 
 every title dependent to some ex- 
 tent on, 747 
 
 from lapse of time, title as de- 
 pendent upon, 744 
 
 of death, title as dependent upon, 
 745 
 
 of satisfaction of incumbrance, 787 
 
 Principal. (See AGENT, ATTORNEY.) 
 is affected by agent's fraud, 236 
 but not liable in damages, 236 
 
 Privity of estate. 
 
 essential to doctrine of estoppel, 
 534 
 
 Privy examination ot married women. 
 (See ACKNOWLEDGMENT.) 
 
 Public lands. 
 
 estoppel of grantor, 528, 551 
 entry by vendee of, 405 
 
 Public road. (See HIGHWAY.) 
 
 Purchase. 
 
 of paramount title is constructive 
 eviction, when, 369 
 
 Purchase-money mortgage. 
 
 failure of title no ground for en- 
 joining foreclosure of, 457 
 
 Purchase money of lands, 
 detention of, on failure of title, 582 
 general principles, 582 
 where the contract is executorv, 
 
 586 
 
 general rule that purchase 
 money may be detained, 586, 
 589
 
 IXDEX. 
 
 [REFERENCES ARE TO PAGES.] 
 
 81)7 
 
 Purchase money of lands Continued. 
 
 forfeiture of deposit by pur- 
 chaser, 590 
 
 exceptions to and qualifica- 
 tions of general rule, 591 
 
 what objections may be made 
 to title, 593, 705 
 
 expenses of examining the 
 title, 593 
 
 burden of proof lies on pur- 
 chaser, 594 
 
 right to detain, where estate 
 is incumbered, 596 
 
 taxes and assessments, 597 
 
 application of purchase money 
 to incumbrances, 598 
 
 buying with knowledge of de- 
 fect or incumbrance, GOO 
 
 chancing bargains, 601 
 
 burden on vendor to show as- 
 sumption of risk, 602 
 
 effect of accepting title bond, 
 602 
 
 consideration of sealed instru- 
 ment may be inquired into, 
 605 
 
 injunction against collection of 
 
 purchase money, '605 
 in cases of fraud, 606 
 not necessarily a disaffirm- 
 
 ance of contract, 607 
 bill must aver tender of pur- 
 chase money, 608 
 
 effect of transfer of purchase- 
 money note, 609 
 
 refusal of vendor to convey 
 for want of title, 609 
 
 purchaser must show tender of 
 purchase money, 188, 610 
 
 where purchase money is pay- 
 able in installments, 611 
 
 payment of purchase money 
 not a condition precedent, 
 when, 613 
 
 purchaser must show offer to 
 rescind, 613 
 
 pleadings and burden of proof, 
 613 
 
 purchaser must restore prem- 
 ises to vendor, 615 
 fact that he has made 
 improvements immaterial, 
 618 
 vendor must be placed in 
 
 st'itii quo, 619 
 restoration a condition pre- 
 cedent to rescission, 620 
 rule in Pennsylvania. 621 
 restoration in cases of fraud. 
 622 
 
 57 
 
 Purchase money of lands Continued, 
 when purchaser need not re- 
 store premises, 624 
 where vendor refuses to 
 
 receive them, 024 
 where detention necessary 
 for purchaser's indem- 
 nity, 624 
 
 purchaser's lien for pur- 
 chase money, 625 
 where title fails to part 
 
 only, 626 
 where the contract is void, 
 
 628 
 where covenants for title have 
 
 been broken, 
 general rule, 442 
 cannot detain, where no breach 
 
 of covenants, 445 
 exception to this rule, 450 
 merger of prior agreements, 
 
 451 
 purchase with knowledge of 
 
 defect, 453 
 recoupment, 454 
 recoupment in foreclosure suit, 
 
 457 
 
 partial failure of considera- 
 tion, 461 
 
 assumpsit to try title. 464 
 what constitutes eviction, 465 
 purchase of outstanding title, 
 
 465 
 
 discharge of incumbrances, 469 
 rule in Texas, 472 
 rule in South Carolina, 475 
 pleadings, 477 
 resumC, 455, 478 
 where covenant of seisin ban 
 
 been broken, 630 
 semble that purchaser may de- 
 tain in some of the States. 632 
 though he has not been evicted, 
 
 632 
 
 provided there is a moral cer- 
 tainty of eviction, 644 
 and provided he reconveys the 
 
 premises, 644 
 breach of this covenant as to 
 
 part of the premises, 646 
 where covenants for title have 
 
 not been broken, 443 
 general rule is that purchase 
 money cannot be detained. 
 443 
 
 except in cases of fraud. 680 
 and where equity exercises a 
 
 f/niti tiniet jurisdiction, 837 
 where there are no covenants 
 for title, MS'
 
 898 
 
 INDEX. 
 
 [BSFXBZNCES ABE TO PAGES.] 
 
 Pwchase money of lands Continued, 
 general rule is that purchaser 
 
 cannot detain, 648 
 reasons for this rule, 649, 6-50 
 want of title is not of itself 
 
 a mistake. 652 
 
 purchaser should be subro- 
 gated to benefit of incum- 
 brance, 653 
 exceptions to general rule 
 
 above, 654 
 where the deed is absolutely 
 
 void, 654 
 
 merger of all prior agree- 
 ments respecting the title, 
 656 
 what agreements not merged 
 
 in conveyance, 659 
 fraud not merged in convey- 
 ance, 661 
 
 rule in Pennsylvania as to de- 
 tention of purchase money, 
 665 
 absence of covenants for 
 
 title immaterial, 665 
 unless purchaser had notice 
 of defective title, 665, 668 
 constructive notice insuf- 
 ficient, 668 
 adverse title must be clear 
 
 and undoubted, 667 
 incumbranee must equal un- 
 paid purchase money, 667 
 purchaser's risk of the title, 
 
 when presumed, 668 
 no presumption from notice 
 of pecuniary incumbranee, 
 when, 670 
 
 presumption where deed con- 
 tains covenants for title, 
 671 
 no relief unless covenants 
 
 have been broken, 671 
 no relief by way of recover- 
 ing back the purchase 
 money, 672 
 Pennsylvania rule does not 
 apply to sheriff's sales, 
 674 
 nor to judicial or ministerial 
 
 sales, 674 
 detention or restitution in case 
 
 of fraud, 680 
 
 purchaser may always recover 
 
 back or detain, in cases o: 
 
 fraud, 680 
 
 whether contract is executory or 
 
 has been executed, 680 
 whether there are or are nol 
 covenants for title, 680, 683 
 
 Purchase money of lands Continued, 
 whether covenants have or have 
 
 not been broken, 680, 684 
 purchaser electing to rescind 
 
 must notify vendor, 680 
 purchaser may affirm instead of 
 
 rescind contract, 681 
 concurrent remedies in cases of 
 
 fraud, 683 
 may be availed of as defense at 
 
 law, 685 
 
 what amounts to fraud by ven- 
 dor, 685 
 
 waiver in cases of fraud, 685 
 by acceptance of conveyance 
 with knowledge of fraud, 
 685 
 
 by laches and delay, 686 
 purchaser does not waive dam- 
 ages bv affirming contract. 
 687 
 may be recovered back on failure 
 
 of title, when, 582 
 where contract is executory, 582. 
 (See above. DETENTION OF 
 PURCHASE MONET, and 582. > 
 general rule is that purchase 
 money may be recovered 
 back, 586 
 
 where vendor wrongfully con- 
 veys away the premises, 594 
 where vendor tenders insuf- 
 ficient deed, 595 
 purchaser at judicial sale can- 
 not recover back, 595 
 where title is unmarketable, 
 595, 705. (See DOUBTFUL 
 TITLE.) 
 
 fact that contract was within 
 Statute of frauds immate- 
 rial, 596 
 
 cannot recover more than pur- 
 chase money, interest and 
 expenses, 596 
 
 where contract has been exe- 
 cuted cannot be recovered, 
 back eo nomine, 676 
 purchaser's remedy is on the 
 
 covenants, 676 
 
 cannot recover on contempo- 
 raneous parol agreement to 
 refund. 678 
 nor maintain bill in equity 
 
 against vendor, 645, 678 
 rule does not apply in case of 
 
 mistake, 679 
 nor where deed is absolutely 
 
 inoperative. 679 
 
 title as dependent on duty to see to 
 application of, 783
 
 INDE*. 
 
 [REFERENCES ABE TO PAGES. 1 
 
 Purchaser. 
 
 remedies of, on failure of title, 3 
 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, 705 
 may reject conveyance tendered, 
 
 when, 40 
 entitled to what covenants for 
 
 title, 143 
 bound by maxim caveat emptor, 
 
 when, 75 
 
 may require abstract of title, 159 
 entitled to time for examination 
 
 of title, 165 
 should make what inquiries in 
 
 pets, 182 
 what acts of, amount to waiver of 
 
 objections to title, 184 
 must tender purchase money and 
 
 demand deed, when, 200 
 may maintain action on the case 
 
 for deceit, 233 
 may surrender possession to owner 
 
 of better title, 363 
 may detain purchase money on 
 
 failure of title 
 where the contract is executory, 
 
 577, 582, 689 
 where covenant of warranty has 
 
 been broken, 442 
 on breach of covenant of seisin, 
 
 semble, 630 
 
 in cases of fraud, 680, 853 
 cannot detain purchase money on 
 
 failure of title 
 where no covenants for title, 
 
 648 
 except in certain States, 665, 
 
 674 
 where objections to title have 
 
 been waived, 184 
 may recover back purchase money 
 
 on failure of title 
 where the contract is executory, 
 
 583 
 but not after contract has been 
 
 executed, 676 
 his remedy is on the covenants 
 
 if any, 676 
 entitled to specific performance of 
 
 the contract, when, 470 
 and to damages in equity, when, 
 
 487 
 
 may elect to take the title though 
 defective, 491 
 
 Purchaser Continued. 
 
 or with compensation for defect*, 
 
 491 
 
 has a right to perfect the title. 50(5 
 estopped to deny title of vendor, 
 
 when, 552, 697 
 
 subrognted to Item-lit, nf lien. 512 
 may compel removal of incuro- 
 
 brances, when, 516 
 may compel transfer of after-ac- 
 quired title, 516 
 
 entitled to reformation of convey- 
 ance, when, 5.").i 
 may rescind contract on failure of 
 
 title, when, 577, 689 
 by notice without suit, 577 
 by proceedings at law or in 
 
 equity, 582, 689 
 must restore premises to vendor on 
 
 rescission, 615 
 but has lien for purchase money, 
 
 when, 625 
 
 cannot be required to accept doubt- 
 ful title, 705 
 may require record title, when, 
 
 724 
 cannot be compelled to buy a 
 
 law-suit, 734 
 
 compelled to take title by ad- 
 verse possession, when, 737 
 must take title with compensation 
 
 for defects, when. 822 
 may enjoin collection of purchase 
 
 money, when, 605, 832 
 relieved" where subject of contract 
 
 does not exist, 860 
 and where he buys his own es- 
 tate, 863 
 and in other cases of mistake, 
 
 858, 866 
 and wherever the vendor is 
 
 guilty of fraud, 834, 853 
 duty to see to application of pur- 
 chase money, 783 
 
 Purchaser's defenses. (See PURCHASE 
 
 MONEY OF LANDS.) 
 to action for breach of contract, 18 
 to suit for specific performance, 692 
 
 Purchaser without notice. 
 
 not protected where vendor had no 
 
 actual legal title, ISO 
 is protected against equities in 
 
 third persons, 180 
 of equities between covenantor and 
 
 covenantee, 389 
 of after-acquired estate protected, 
 
 530 
 record as notice to purchase, 241, 
 
 668
 
 900 
 
 INDEX. 
 
 [REFERENCES ABE TO PAGES.] 
 
 Qualified covenants, 
 express agreement will restrict 
 
 covenant of warranty, 338 
 general covenants not restrained 
 
 unless intent clearly appears, 338 
 subsequent limited covenant will 
 
 not restrain prior covenant, 
 
 when, 338 
 restrictive words in first covenant 
 
 extend to all, when, 338 
 general covenant does not enlarge 
 
 subsequent limited covenant, 339 
 restrictive words in one will not 
 
 control other covenants, when, 
 
 339 
 
 equity will reform deed by insert- 
 ing restriction or qualification, 
 
 340 
 
 Quantity. 
 
 covenant of warranty does not ex 1 - 
 
 tend to, 337 
 purchaser must accept title with 
 
 compensation for loss of small, 
 
 of estate, when, 822 
 
 Quia timet. 
 
 equity will exercise this jurisdic- 
 tion on failure of title, when, 
 837 
 
 Quiet enjoyment, Covenant for. (See 
 WARRANTY, COVENANT OF.) 
 
 same in effect as covenant of war- 
 ranty, 436 
 
 what constitutes breach, 437 
 
 implied in leases, 343 
 
 tortious disturbance by landlord is 
 breach of, 353 
 
 Quit claim. (See COVENANTS FOB TITLE.) 
 
 what is, 140 
 
 agreement to convey by, 36 
 
 purchaser accepting cannot detain 
 
 purchase money, 648 
 except in case of fraud, 680 
 
 passes benefit of covenants for 
 title, 381 
 
 but will not transfer after-ac- 
 quired title, when, 529 
 
 Railway. 
 
 when existence of, is breach of 
 covenant against incumbrances, 
 304 
 
 Rebutter. 
 
 operation of covenants for title by 
 
 way of, 536 
 Recitals. 
 
 in deed put purchaser upon no- 
 tice, 173 
 
 no covenants implied from mere, 
 344 
 
 Recitals Continued. 
 
 sometimes operate as an estoppel, 
 344 
 
 Recognizance. 
 
 to be noted in examining title, 178 
 
 Reconveyance. 
 
 on detention of purchase money 
 
 where breach of covenant of 
 
 seisin, 634, 644 
 on rescission of executed contract. 
 
 854, 855 
 
 Record. 
 
 defects of title apparent from pub- 
 lic, 176 
 
 purchaser charged with notice 
 from public, when, 241 
 
 when purchaser may require good 
 title of, 24, 724 
 
 cannot be collaterally attacked on 
 question of title, when, 88 
 
 title as dependent on sufficiency of, 
 .761, 762, n. 
 
 in ejectment made evidence against 
 
 vendor by notice, 423 
 Recording acts. 
 
 notice, as between vendor and pur- 
 chaser, by virtue of, 241 
 record of deed prior to inception 
 of grantor's title, 530 
 
 Recoupment. 
 
 distinguished from set-off, 456 
 detention of purchase money by 
 
 way of, 454 
 on foreclosure of purchase-money 
 
 mortgage, 457 
 
 Reference of title to master in chan- 
 cery. 
 
 title will be referred, when, 816 
 when, is matter of right, 816 
 denied where purchase was a chanc- 
 ing bargain, 817 
 and where the court is satisfied 
 
 about the title, 817 
 at what stage of proceedings refer- 
 ence is directed, 818 
 procedure on, 818 
 costs of. how decreed, 818 
 
 Reformation of the conveyance. 
 
 by insertion of covenants for title, 
 340 
 
 is a familiar ground of equitable 
 jurisdiction, 555 
 
 is a species of specific perform- 
 ance, 555 
 
 plaintiff should first have ten- 
 dered corrected deed, 556
 
 INDEX. 
 
 [REFERENCES ARE TO PAGES.] 
 
 901 
 
 Reformation of the conveyance Con- 
 tinued. 
 
 unless defendant has refused or 
 wus incompetent to execute same, 
 556 
 and except in suit to reform and 
 
 foreclose mortgage, 556 
 defendant refusing to correct must 
 
 pay costs, 556 
 
 bill must contain prayer for refor- 
 mation, 557 
 but held that prayer for " other and 
 
 further relief " sufficient, 557 
 reformation of deed does not con- 
 travene Statute of Frauds, 557 
 equities of both parties will be en- 
 forced, 557 
 adverse possession by stranger no 
 
 objection to, 558 
 purchaser under void sheriff's sale 
 
 cannot sue for reformation, 558 
 how mistakes in recording deed 
 
 corrected, 558 
 mistake of fact in insertion or 
 
 omission relievable, 558 
 contents as intended but founded 
 
 in mistake of fact, 559 
 mistake in wills cannot be cor- 
 rected, 560 
 patent ambiguity in a deed may 
 
 be corrected, 560 
 reservations will not be inserted 
 unless omitted through fraud 
 or mistake, 560 
 
 equity will insert omitted cove- 
 nants for title, 560 
 unless purchaser knew character 
 
 of the deed, 560 
 
 ignorance of defective title no 
 ground for inserting warranty, 
 560 
 
 mistake of law no ground for ref- 
 ormation, 560 
 
 contrary view in some cases, 561 
 where deed fails to express inten- 
 tion of parties, 561 
 distinction between reformation 
 
 and rescission, 562 
 court merely enforces original 
 
 contract, 5(i2 
 what is mistake of fact, and 
 
 what mistake of law, 562 
 mistake must have been mutual, 564 
 unless defendant was guilty of 
 
 fraud, 565 
 though the fraud might have 
 
 been discovered, 566 
 mere ignorance of contents of 
 deed no ground for reforma- 
 tion, 566 
 
 Reformation of the conveyance Con- 
 tinued, 
 pleadings must allege mutuality 
 
 of mistake, f>ii.~> 
 mistake must not have resulted 
 
 from negligence, 566 
 exceptions to this rule, 667 
 nature and degree of eviden 
 
 quired, 567 
 no difficulty in case of patent 
 
 mistake. :>iJ7 
 parol evidence admissible to show 
 
 mistake. ."><>H 
 but must be clear and positive, 
 
 568 
 
 burden of proof is on complain- 
 ant, 568 
 
 inconsistence of deed with prior 
 contract not necessarily a mis- 
 take, 568 
 
 laches in application for relief, 569 
 not imputable unlil discovery of 
 
 mistake, 569 
 nor where grantor has refused to 
 
 correct, 569 
 defective execution of statutory 
 
 power will not be aided, 560 
 except in mere matters of de- 
 scription, 570 
 right not confined to immediate 
 
 parties, 570 
 but complainant must be party 
 
 or privy to the deed, 570 
 remote grantee entitled, 570 
 denied purchaser at sheriff's sale, 
 
 570 
 denied grantee owing part of 
 
 purchase money, 570 
 grantor entitled to reformation, 
 
 571 
 but deed is always construed 
 
 strongly against him, 571 
 and denied in case of his neg- 
 ligence, ~>7- 
 
 and where he insists upon pay- 
 ment of the purchase money, 
 572 
 
 may be decreed against heirs, de- 
 ^-i-ps. grantees and others, 
 572 
 persons in interest must be 
 
 made parties. 572 
 when grantor not a necessary 
 
 party, 572 
 
 may be decreed in favor of and 
 against subsequent purchasers 
 and creditors. 57" 
 but not as against thorn if 
 
 without notice. 573 
 possession sufficient as notice, 
 574
 
 902 
 
 INDES. 
 
 [REFERENCES ARE TO PAGES.] 
 
 Refonnttion of the conveyance Con- 
 tinued. 
 
 mistake on face of deed is 
 notice, 575 
 
 bill must aver notice to defend- 
 ant, 575 
 
 purchaser must have paid 
 
 value, 575 
 
 volunteer not entitled to reforma- 
 tion as against grantor, 575 
 
 but is entitled as against other 
 persons, 575 
 
 granted in favor of mortgagee 
 of volunteer, 575 
 
 examples of sufficient consider- 
 ation, 576 
 
 married woman's deed will not 
 be reformed, 576 
 
 except in matters of descrip- 
 tion, 576 
 
 and except where disabilities 
 have been removed, 576 
 
 Eegistration of deeds. (See RECORD 
 AND RECORDING ACTS.) 
 
 Registry acts. (See RECORDING ACTS.) 
 
 Release. (See QUIT CLAIM.) 
 (See QUIT CLAIM.) 
 does not affect subsequent assignee 
 
 of covenants, 380 
 will pass benefit of covenants for 
 
 title, 380 
 
 will not operate estoppel or rebut- 
 ter, 544 
 
 Remedies. 
 
 of the parties on failure of title. 
 (See Analysis, p. VII.) 
 
 Rents and profits. (See MESNE PROF- 
 ITS.) 
 
 Rescission. 
 
 of executory contract, 4, 689 
 by proceedings at law, 582 
 by act of the parties, 577 
 
 rescission is abrogation of the 
 
 contract, 577 
 
 classification of ways in which 
 
 rescission may occur, 578, n. 
 
 may always occur by consent 
 
 of parties, 578 
 consent may be implied from 
 
 acquiescence, 578 
 party rescinding should give 
 
 notice of intent, 578 
 each party must restore what 
 
 he has received, 578 
 no forfeiture of purchaser's de- 
 posit in such cases, 579 
 
 Rescission Continued. 
 
 though contract provides for 
 
 such forfeiture, 579 
 rescission by act of one party 
 
 only, 579 
 
 but one party cannot deprive 
 the other of right to per- 
 form, 580 
 
 may sometimes treat the con- 
 tract as rescinded, 580 
 rescission by consent not with- 
 in Statute of Frauds, 581 
 by proceedings in equity, 689 
 suit for rescission proper, 689 
 may be maintained where 
 
 title has failed, 689 
 not dependent on right to 
 maintain action for dam- 
 ages, 690 
 
 grounds of equitable juris- 
 diction, 691 
 
 fraud always ground for. 691 
 reduction of agreement to 
 
 writing, immaterial, 691 
 rescission where vendor had 
 
 no power to sell, 691 
 when purchaser estopped to 
 
 rescind, 692 
 
 defenses to vendor's suit for 
 
 specific performance, 692 
 
 doubtful or unmarketable 
 
 title, 692 
 
 unless sale was of such 
 title or interest as 
 vendor had, 693 
 vendor must show title 
 
 prima facie, Ofl3 
 purchaser must then show 
 
 defects, 693 
 
 objection to title may be 
 made after answer. 693 
 vendor resting his title on 
 particular ground cannot 
 shift after suit begun, 
 694 
 
 vendor on rescission must be 
 placed in statu quo, 694 
 purchaser must restore 
 premises to vendor, 694 
 denied, where premises 
 cannot be restored in 
 same condition as re- 
 ceived, 694 
 
 unless injury can be abated 
 from purchase money, 
 694 
 substantial compliance with 
 
 rule sufficient, 697 
 vendor's remedy when pur- 
 chaser refuses to restore, 
 696
 
 INDEX. 
 
 903 
 
 [REFERENCES ABE TO PAGES.] 
 
 Rescission Continued. 
 
 contract must be rescinded 
 in tutu or not at all, 696 
 vendor may recover prem- 
 ises in ejectment, 690 
 purchaser estopped to deny 
 
 his title, 697 
 
 restoration as condition pre- 
 cedent to rescission, 697 
 cases in which purchaser 
 may refuse to restore the 
 premises, 623, 624 
 purchaser entitled to interest 
 on purchase money, when, 
 698 
 
 rents and profits usually 
 set off against interest, 
 698 
 
 unless purchaser liable to 
 true owner for mesne 
 profits, 699 
 
 when not liable to vendor 
 for mesne profits, 221, 
 699, 700 
 
 in equity purchaser al- 
 lowed for improvements, 
 701 
 unless made with notice of 
 
 defect, 702 
 
 purchaser's pleadings must 
 show how title is defective, 
 703 
 who necessary parties to suit 
 
 for rescission, 704 
 of executed contract, 853 
 
 generally denied except in cases 
 
 of fraud and mistake, 853 
 (See MISTAKE, and 858.) 
 (See PURCHASE MONET, and 630.) 
 fraud always a ground for re- 
 scission, 855 
 fraud not merged in warranty, 
 
 855 
 
 decree must provide for recon- 
 veyance, 854 
 purchaser must reconvey or offer 
 
 to reconvey, 856 
 except where vendor has no color 
 
 of title, 856 
 
 or has refused to accept a recon- 
 veyance, 856 
 purchaser must act promptly on 
 
 discovery of fraud, 857 
 damages allowed purchaser on 
 
 rescission when, 487, 857 
 Reservation. 
 
 unauthorized, in deed, 73 
 of vendor's lien to be noted in exam- 
 ining title, 173 
 
 of minerals is an incumbrance, 776 
 other reservations, 776 
 
 Reservation Continued, 
 by parol, inadmissible in evidence , 
 282 
 
 Restoration of premises to vendor. 
 necessary on rescission of contract, 
 
 615 
 
 though purchaser has made im- 
 provements, 618 
 vendor must be placed in $tatu 
 
 quo, 619 
 as condition precedent to rescis- 
 
 sion, 620 
 
 rule in Pennsylvania, 621 
 in cases of fraud, 622 
 when rule does not apply, 623 
 
 where vendor refuses to receive 
 
 them, 624 
 where detention necessary for 
 
 purchaser's indemnity, 624 
 purchaser's lien for purchase 
 
 money paid, 625 
 where title fails to part only, 
 
 626 
 where the contract is void, 628 
 
 Resulting trust. 
 
 purchaser without notice not affected 
 by, 181 
 
 Right of way. 
 
 to be inquired for by purchaser, 
 
 183 
 when a breach of covenant against 
 
 incumbrances, 301 
 notice of, to purchaser at time of 
 
 covenant, 304 
 is not breach of covenant of seisin, 
 
 260 
 
 renders title unmarketable, 775 
 loss of or eviction from, a breach 
 
 of warranty, 374 
 
 through warranted premises, a 
 breach of warranty, 377 
 
 "Right, Title and Interest." (See 
 
 QUIT CLAIM.) 
 
 effect of agreement to sell, 38 
 conveyance of, passes after-acquired 
 
 estate when. 550 
 
 Right to convey, Covenant for. (See 
 COVENANT OF SEISIN.) 
 
 Roads. (See HIGHWAYS.) 
 
 Root of title. (See ABSTEACT or 
 
 TITLE.) 
 what is, 161 
 
 Running with the land. (See the sev- 
 eral covenants for title.)
 
 904 
 
 INDEX. 
 
 [REFERENCES ABE TO PAGES.] 
 
 Sale. (See JUDICIAL SALE, CAVEAT 
 
 EMPTOB. ) 
 implies indefeasib'e title in vendor, 
 
 20 
 
 of fee simple implied, 21 
 by personal representatives, 108 
 sheriffs and others, 118, 132 
 
 Satisfaction ef lien. 
 
 by surety should be noted in ex- 
 amining title, 177 
 of incumbrance, when presumed, 787 
 
 Scroll. 
 
 in place of a seal sufficient, 54 
 
 Seal. 
 
 necessity for, 54 
 scroll sufficient, 54 
 must be recognized as seal, when, 55 
 to be noted in examining title, 171 
 does not exclude inquiry into con- 
 sideration, 605 
 
 Seisin, Covenant for. 
 
 form and effect of, 254 
 
 importance of, 255 
 
 requires an indefeasible estate, 255 
 
 in some States satisfied by bare pos- 
 session, 256 
 
 implied from certain words of grant, 
 257 
 
 right of action for breach is per- 
 sonal, 257 
 
 what constitutes breach, 258 
 mere incumbrance does not, 260 
 
 not affected by champertous deed, 
 259 
 
 does not run with land after breach, 
 
 261 
 
 contrary rule in some States, 265 
 possession must have passed with 
 deed, 268 
 
 when Statute of Limitations begin 
 to run, 269 
 
 where action must be brought, 270 
 
 measure of damage for breach, 270 
 nominal, if no eviction, 273 
 loss of part of estate only, 275 
 
 burden of proof in action for breach, 
 275 
 
 pleadings in action for breach, 278 
 
 detention of purchase money in case 
 of breach, 630 (See PURCHASE 
 MONET OF LANDS.) 
 
 Set-off. (See COUNTERCLAIM, RECOUP- 
 MENT. ) 
 
 Sheriff's sale. (See CAVEAT EMPTOR.) 
 caveat emptor applies to, 118 
 exceptions, 123 
 
 Sheriff's sale Continued, 
 title under void judgment, 126 
 title under void execution, 129 
 purchaser cannot require covenants, 
 
 157 
 
 covenants enure to benefit of pur- 
 chaser at, 382 
 
 Pennsylvania, equitable doctrine of 
 detention of purchase money does 
 not apply to, 673 
 
 Signature. 
 
 of grantor to deed not essential, 54 
 but should be required by purchaser, 
 
 54 
 of certifying 'officer to certificate of 
 
 acknowledgment, 68 
 to be noted in examination of title. 
 
 171 
 
 Sovereignty. (See ACTS OF SOVER- 
 EIGNTY, EMINENT DOMAIN.) 
 
 Specific performance. (See TITLE, 
 
 RIGHT TO PERFECT, COMPENSATION 
 
 FOB DEFECTS, PURCHASER, DOUBT- 
 FUL TITLE.) 
 
 of executory contracts at suit of 
 purchaser, 479 
 
 denied where vendor has no title, 
 480 
 
 and where equitable title is in a 
 stranger, 481 
 
 granted as against second pur- 
 chaser with notice, 481 
 
 vendor must make reasonable effort 
 to get in title, 482 
 
 want of title at time of contract, 
 no objection, 482 
 
 when vendor may be required to 
 remove incumbrance, 483 
 
 when he cannot be required to 
 remove defect, 483 
 
 abandonment of contract waives 
 right to specific performance, 
 484 . 
 
 acceptance of offer to sell must be 
 unqualified, 484 
 
 effect of acceptance of purchaser 
 "provided the title is perfect," 
 485 
 
 purchaser must have paid or ten- 
 dered purchase money, 485 
 
 unless he has notice that vendor 
 will not perform, 486 
 
 laches takes away purchaser's 
 right to relief, 487 
 
 damages in lieu of specific per- 
 formance denied, 487 
 
 unless other relief was in good 
 faith the object of the suit, 487
 
 IXDEX. 
 
 905 
 
 [REFERENCES ARE TO I' 
 
 Specific performance Continued. 
 
 measure of damages in such cases, 
 
 490 
 
 at ^it of purchaser, with compensa- 
 tion for defects, 491 
 may take such estate as vendor 
 
 lias, 491 
 or apply purchase money to in- 
 
 cumbrances, 494 
 or have abatement of purchase 
 
 money, 494 
 basis upon which compensation 
 
 will be decreed, 494 
 purchaser bound by election to 
 
 keep the estate, 494 
 decree for abatement, how framed, 
 
 495 
 
 purchaser cannot require indem- 
 nity against future loss, 495 
 except, it seems, against inchoate 
 
 right of dower, 496 
 and this by abatement of purchase 
 
 money, 496 
 where specific performance with 
 
 abatement denied, 500 
 where there is title to small por- 
 tion only, 500 
 where conditions of sale provide 
 
 for rescission, 500 
 where purchaser bought with 
 knowledge of defect, 500, 502 
 where purchaser has been guilty 
 
 of laches, 501 
 where contract was to convey 
 
 upon a contingency, 501 
 where inconsistent with the con- 
 tract, 501 
 purchaser must have given vendor 
 
 opportunity to abate, 502 
 must take the whole of part to 
 
 which title is good, 502 
 right of vendor to rescind where 
 
 title fails, 503 
 
 denied, unless reserved in the con- 
 tract, 503 
 or except in case 6f fraud or 
 
 mistake, 503 
 vendor rescinding must return 
 
 purchase money, 505 
 specific performance of covenants for 
 
 title, 514 
 of covenant for further assurance, 
 
 514 
 
 removal of incumbrance, 515, 516 
 conveyance of after-acquired estate 
 
 516 
 at suit of vendor, 705, 792, 822 
 
 State. (See EMINENT DOMAIN.) 
 
 covenants cannot be required from. 
 158 
 
 State Continued, 
 but if given operate an estoppel, 158 
 appropriation of lands by, no breach 
 of warranty, 354 
 
 Statute. (See LIMITATIONS, STATUTE 
 
 OF.) 
 of Frauds, agreement to rescind i* 
 
 not within, 581 
 does not affect right to recover 
 
 back purchase money, 596 
 title as dependent on private, 7">'. 
 758, n., 769, n 
 
 Street. (See HIGHWAY.) 
 
 Subrogation. 
 
 of surety, to be noted in examining 
 title, *177 
 
 of purchaser at judicial and min- 
 isterial sales, 134 
 
 of purchaser to benefit of lien, ~>7'2 
 
 where no covenants for title, 654 
 
 Subsequent purchaser. (See FIK- 
 
 CHASER. ) 
 
 entitled to benefit of covenants for 
 title, 303, 377 
 
 Sufficiency of conveyance tendered. 
 (See DEED.) 
 
 Sufficiency of vendor's title. (See 
 DOUBTFUL TITLE, TITLE, ABSTRACT 
 OF TITLE.) 
 
 Suit. (See ACTION.) 
 
 effect of notice to covenantor of, 
 
 and request to defend, 423 
 in equity, when a breach of covenant 
 
 for quiet enjoyment, 437 
 
 Sunday. 
 
 deed executed on, is valid, 44 
 
 Surplusage. 
 
 does not vitiate certificate 
 acknowledgment, 70 
 
 Surrender. 
 
 of premises, when a construct! 
 
 eviction, 363 
 adverse title must have been !i 
 
 tilely asserted, 367 
 and must be shown to have been 
 
 paramount, 368 
 
 Suspension of power of alienation, 
 title as dependent on, cases cited, 
 766, n., 768, n
 
 906 
 
 INDEX. 
 
 [REFERENCES ABE TO PAGES.] 
 
 Taxes. 
 
 to be noted in examining title, 178 
 
 when breach of covenant against in- 
 cumbrances, 292 
 
 covenants for title cannot be re- 
 quired from tax officer, 157 
 
 when to be paid by purchaser, 597 
 
 Tax sale. 
 
 will not pass benefit of covenants for 
 
 title, 382 
 caveat emptor applies to, 132 
 
 Tax title. 
 
 validity of tax sale to be noted in 
 
 examining title, 179 
 burden is on adverse claimant to 
 
 show invalidity of, 179 
 caveat emptor applies to purchase at 
 
 tax sale, 132 
 and has been applied to transferee 
 
 of tax title, 132 
 not marketable, when, 773 
 
 Tenants in common. 
 
 should covenant severally, 153 
 may sue severally for breach of war- 
 ranty, 349 
 
 Tender of performance. 
 
 by purchaser, necessity for, 200 
 distinction between mutual and de- 
 pendent covenants, 200 
 what is sufficient tender, 202 
 when no tender need be made, 202 
 duty of vendor to tender perform- 
 ance, 205 
 
 vender must prepare conveyance, 207 
 tender must be averred, 208 
 
 Term of years. (See LEASE.) 
 
 Timber. 
 
 privilege, breach of covenant against 
 incumbrances, 298 
 
 Time. (See LACHES, LIMITATIONS, 
 STATUTE OF.) 
 
 of completing contract, when mate- 
 rial, 801 
 
 in which to perfect the title allowed, 
 792, 798 
 
 in which to examine title allowed, 75 
 
 in which abstract should be fur- 
 nished, 164 
 
 title as dependent on presumptions 
 from lapse of, 744, 787 
 
 Title. (See TITLE, RIGHT TO PERFECT 
 
 THE.) 
 
 absolutely bad, what is, 2 
 purchaser may demand what, 20, 705 
 
 Title Continued. 
 
 covenants for, which purchaser may 
 demand, 143 
 
 abstract of, 159 
 
 should be examined by purchaser, 
 160, 241, 245, 394 
 
 of lessor not usually examined, 152, 
 408 
 
 waiver of objection to, 184 
 
 paramount, may be gotten in by 
 covenantee, 369, 506 
 
 may be perfected by purchaser, 360 
 
 acceptance of, with compensation for 
 defects, 491, 822 
 
 subsequently acquired, enures to 
 grantee, 518 
 
 root of. what is, 161 
 
 doubtful, what is, 2, 706 
 
 as dependent on adverse possession, 
 
 737 
 presumptions from lapse of time, 
 
 744 
 
 notice, 747 
 
 errors in judicial proceedings, 751 
 sale of estates of infants and 
 
 others, 755 
 
 want of parties to suits, 757 
 defective conveyances, 761 
 construction of deeds and wills, 
 
 766 
 
 competency of parties to instru- 
 ments, 767 
 
 intestacy and insolvency, 771 
 satisfaction oi incumbrances, 786 
 
 vendor may perfect, 792 
 
 may be referred to master in chan- 
 cery, 816 
 
 Title bona. 
 
 is a sealed obligation to make title 
 
 under penalty, 23 
 acceptance of, has been held a waiver 
 
 of right to rescind, 197 
 contrary view in other cases, 602 
 
 Title, Right, to perfect the. 
 
 right of purchaser to perfect the 
 title, 506 
 
 by the purchase of adverse claim, 
 506 
 
 but only as set-off to purchase 
 money, 506 
 
 unless he has been evicted or sur- 
 rendered the premises, 506 
 
 purchase must have been necessary 
 for his protection, 508 
 
 price paid not conclusive of value 
 of adverse claim, 509 
 
 caution in purchasing prospective 
 interests, 509 
 
 discharge of liens and incum- 
 brances, 509
 
 INDEX. 
 
 [RKFEBENCES ABC TO PAGES.] 
 
 907 
 
 Title, Right to perfect the Contin- 
 ued. 
 
 purchaser may always apply pur- 
 chase money to liens, 509 
 duty so to apply purchase money, 
 
 510 
 takes the risk of validity of the 
 
 incumbrance, 511 
 caution in paying off mortgage 
 lien, 511 
 
 rights of transferee of mortgage 
 
 note, 511 
 can have credit only for amount 
 
 actually paid, 512 
 subrogation to benefit of lien dis- 
 charged, 512 
 
 and to all of lienor's remedies, 
 512 
 
 but only to extent of amount 
 paid out, 512 
 
 in case of void sale, 513. (See 
 
 CAVEAT EMPTOB.) 
 right of vendor to perfect the title 
 before time fixed for completion of 
 the contract, 792 
 
 vendor mny of right remove ob- 
 jections,' 793 
 
 unless he has no colorable title, 
 793 
 
 existence of incumbrances imma- 
 terial, 794 
 
 unless contract provides that 
 they shall be discharged be- 
 fore time for completion, 794 
 
 purchaser should make objec- 
 tions to title in time, 794 
 
 day fixed for performance usu- 
 ally a formality, 794 
 
 rule where no time is fixed, 795 
 
 where purchase money is pay- 
 able in installments, 796 
 
 vendor must pay costs of suit, 
 797 
 
 injunction or ne exeat will not 
 be granted vendor, 797 
 
 vendor not obliged to perfect the 
 
 title, 798 
 
 after time fixed for completion of 
 the contract, 798 
 
 may \ rfect the title at any time 
 befoie decree, 798 
 
 especially if purchaser knew 
 jLitle wns defective, 799 
 
 but cannot have indefinite time, 
 801 
 
 exceptions to thi general rule, 
 801 
 
 (1) where time is material, 
 801 
 
 (2) where the covenants are 
 mutual and dependent, 804 
 
 Title, Right to perfect the Contin- 
 ued. 
 
 (3) where the vendor has ac- 
 quiesced in purchaser's o\t 
 jections, 804 
 
 (4) where much loss and in- 
 jury would result to pur- 
 chaser, 804 
 
 (5) where vendor has been 
 guilty of fraud, 805 
 
 (6) where vendor had no col- 
 orable title, 806 
 
 (7) where vendor has been 
 guilty of laches, 810 
 
 (8) where contract stipulates 
 for rescission, 811 
 
 (9) where time is made ma 
 terial by notice, 813 
 
 in what proceedings vendor m.iv 
 
 exercise the right, 813 
 in suit for specific performance 
 
 by either party, 813 
 in suit to enjoin collection of 
 
 purchase money, 814 
 in certain suits at law, 814 
 reference of title to master in 
 
 chancery, 816 
 
 when title will be referred. 816 
 reference is a mater of ri^ht 
 
 when title is doubtful. 817 
 denied, where mere interest. 
 
 such as it might be, was soKl. 
 
 817 
 and where the court is satisfied 
 
 about the title, 817 
 at what stage of the proceeding 
 
 reference directed, 818 
 procedure on reference, 818 
 costs of reference, how decreed, 
 
 819 
 interest on purchase money while 
 
 title is being perfected, 819 
 purchaser in most cases excused 
 
 from paying interest, 820 
 
 lortious acts. 
 
 no breach of covenant of warranty, 
 
 349 
 except those of grantor or his agents 
 
 353 
 
 Trust, Deed of. 
 
 sale under, when enjoined for defect 
 
 of title, 851 
 Tiustee, 
 
 caveat emptor applies to sale by, 132 
 general covenants cannot be required 
 
 from, 153 
 
 title as dependent on power of, 768, 
 n., 769
 
 908 
 
 [HEFEKENCES ARE TO PAGES.] 
 
 Uncultivated and waste lands. (See 
 VACANT LANDS.) 
 
 Usual covenants. (See COVENANTS FOB 
 TITLE. ) 
 
 Vacant and unoccupied land. 
 
 what is constructive eviction from, 
 362 
 
 Value. (See IMPROVEMENTS, DAMAGES.) 
 
 Vendor. (See PURCHASES.) 
 
 entitled to reasonable, time in which 
 to prepare and tender deed, 15 
 
 when restrained from suing for pur- 
 chase money, 19, 832 
 
 what covenants may be required 
 from, 143 
 
 must furnish abstract of title, 162 
 
 competency of, to be noted in exam- 
 ining title, 172, 182 
 
 duty to tender performance of con- 
 tract, 205 
 
 must disclose latent defects in the 
 title, 237 
 
 not bound to call attention to patent 
 defects, 241 
 
 may rescind on failure of title, when, 
 503, 577 
 
 must convey subsequently acquired 
 title, 518 
 
 may maintain ejectment against 
 purchaser, when, 618 
 
 has a right to perfect the title, when, 
 792 
 
 may require purchaser to take title 
 
 with compensation, when, 822 
 ' defenses of, to purchaser's applica- 
 tion for relief, 5, 9 
 
 Vendor's lien. 
 
 to be noted in examining title, 173 
 178 
 
 Venue. 
 
 of certificate of acknowledgment, im- 
 portance of, 57 
 
 Voluntary conveyance. (See VOLTJN- 
 
 TEEBS. ) 
 
 title as dependent on notice of, 748 
 
 Volunteers. 
 
 deed will not be reformed in favor 
 of, 575 
 
 Waiver. 
 
 of objections to deed, 73 
 
 "Waiver of objections to title. 
 
 not necessarily a waiver of right to 
 
 compensation, 185 
 is an implication of law in most 
 
 cases, 186 
 
 Waiver of objection to title Contin- 
 ued. 
 
 resale does not amount to wai\<M. 
 188 
 
 waiver by taking possession, 189 
 
 implied from laches of purchaser. 
 191 
 
 waiver , by continuing negotiations 
 with vendor, 193 
 
 waiver in cases of fraud, 194 
 
 implied from purchase with notice 
 of defect, 195 
 
 none implied from absence of agree- 
 ment for covenants, 196 
 
 Want of title. (See DOUBTFUI TITLE, 
 TITLE, PURCHASES, VENDOR.) 
 
 Warrantia chartae. 
 
 writ of, no longer in use, 330 
 
 Warranty, Covenant of. 
 origin and form, 329 
 can be created only by deed, 330 
 is either general or special, 331 
 construction and effect, 333 
 includes the other covenants in some 
 
 States, 333 
 when does not include covenant 
 
 against incumbrances, 334 
 effect by way of estoppel or rebuttal. 
 
 ( See'EsTOPPEL. ) 
 not affected by notice of adverse 
 
 claim, 335 
 want of consideration no defense to 
 
 action on, 336 
 Statute of Limitations begins to run, 
 
 336, 357 
 
 does not extend to quantity, 336 
 qualification and restrictions of, 338 
 
 express intentibn to restrict must 
 appear, 339 
 
 conveyance of " right, title and in- 
 terest " with warranty, 340 
 when implied, 341 
 
 in a lease, 343 
 
 in an exchange, 344 
 
 in partition, 344 
 
 none from recitals in a deed, 344 
 parties bound and benefited, 344 
 
 married women, 345 
 
 heirs and devisees, 345 
 
 joint covenantors, 347 
 
 bankrupts, 347 
 
 personal representatives and fidu- 
 ciaries, 348 
 
 municipal corporations 349 
 who may sue for breach, 349 
 what constitutes breach, 350 
 
 not broken by tortious disturbance, 
 
 350 
 
 except by covenantor himself, 
 352
 
 IXDI:X. 
 [BEFEHENCES ABE TO PAGES.] 
 
 909 
 
 Warranty, Covenant of Continued, 
 nor by exercise of eminent domain, 
 
 354 
 
 broken by eviction only. 355 
 entry by paramount claimant, 358 
 under legal process, 358 
 under foreclosure of incumbrance 
 
 359 
 constructive eviction, 360 
 
 inability to get possession, 360 
 vacant and unoccupied land, 362 
 surrender of possession, 363 
 judgment in ejection not an 
 
 eviction, 365 
 hostile assertion of adverse 
 
 claim, 367, 373 
 must show paramount title in 
 
 surrenderee. 368 
 purchase of outstanding title, 
 
 369 
 covenantee must show that 
 
 title was paramount, 371 
 discharge of incumbrance to 
 
 prevent eviction, 372 
 loss of incorporeal hereditament, 
 
 374 
 
 existence of adverse easement, 374 
 runs with land till eviction, 377 
 assignee after eviction, entitled, 
 
 when, 378 
 
 equitable owner not entitled, 378 
 assignee may sue in his own name, 
 
 379 
 several actions against original 
 
 covenantor, 379 
 release of covenant by immediate 
 
 covenantee, 380 
 
 quit claim passes benefit of, 381 
 intermediate covenantee must have 
 
 been damnified, 382 
 remote assignee may sue original 
 
 covenantor, 384 
 mortgagee entitled to benefit of, 
 
 385 
 original covenantor must have been 
 
 actually sei/ed, 386 
 nominal grantor joining for con- 
 formity not liable to assignee, 
 388 
 assignee not affected by equities of 
 
 covenantor, 389 
 
 covenant extinguished by recon- 
 veyance to grantor, 389 
 pleadings in suit by assignee, 390 
 measure of damages, 390 
 
 in most States is consideration 
 
 money, 391 
 value at time of eviction is, in 
 
 New England States, 391, 398 
 exception to general rule in case 
 of mortgage, 393 
 
 Warranty, Covenant of Continued, 
 no allowance for improvement-, 
 
 :{'.I4. 413 
 
 not aggravated by grantor's fraud, 
 but actual damages may be given 
 in action for deceit, 395 
 is value at time of contract and 
 
 not time of conveyance, 395 
 nominal only against nominal 
 
 grantor, 396 
 and against mere voluntary 
 
 grantor, 396 
 purpose of purchase immaterial on 
 
 question of, 397 
 
 governed by leae loci contracts, 3'.'7 
 on collateral contract to remo\- 
 
 incumbrance, 397 
 
 failure of grantee to take posses- 
 sion does not affect, 398 
 where purchase money is unpaid, 
 
 398 
 
 in favor of assignee, 401 
 true consideration may be shown, 
 
 402 
 
 stated in deed prima facie evi- 
 dence only, 402 
 where none stated, 403 
 where not paid in nloney, 403 
 agreement for non-liability inad- 
 missible, 403 
 
 where covenantee buys in para- 
 mount title, 404 
 can recover only amount ao 
 
 paid, 404 
 except where premises were 
 
 public lands, 405 
 and necessary expenses there- 
 with incurred, 405 
 must show that title was para- 
 mount, 405 
 refusal to buy in immaterial on 
 
 question of, 405 
 on eviction from leased premises, 
 
 406 
 actual value of residue of term, 
 
 407 
 where lessee liable for mesne 
 
 profits, 408 
 on eviction from part of premises, 
 
 409 
 relative and not average value 
 
 of part lost, 409, 411 
 loss of part no ground for re- 
 
 scission, 411 
 where grantor had only a life 
 
 estate, 412 
 
 burden on plaintiff to show rela- 
 tive value. 413 
 
 where premises are subject to ease- 
 ment, 413 
 interest as element of damages. 414
 
 910 
 
 INDEX. 
 
 [EEFEBEXCES ABE TO PAGES.] 
 
 Warranty, Covenant of Continued. 
 as governed by liability foi 
 
 mesne profits. 414 
 runs from time of purchase, 417 
 costs in suits by adverse claimant 
 
 as element of damage. 417 
 where notice of suit has been 
 
 given, 417 
 conflict of authority on this 
 
 question. 418 
 refused, unless plaintiff has been 
 
 evicted, 419 
 other cases in which, refused. 
 
 419 
 special agreement to indemnify 
 
 not merged in deed, 420 
 grantee need not show previous 
 demand for reimbursement, 
 421 
 
 counsel fees and expenses as ele- 
 ments of damage, 421 
 conflict of authority on this 
 
 point, 421 
 
 as dependent on notice and re- 
 quest to defend, 423 
 notice to defend or prosecute eject- 
 ment, 423 
 
 if given relieves covenantee from 
 showing recovery under para- 
 mount title, 424* 
 denied in North Carolina, 425 
 concludes covenantor from disput- 
 ing title of evictor, 426 
 unless derived from covenantee 
 
 himself, 427 
 
 should be given to covenantee him- 
 self. 427 
 
 to agent for collection of pur- 
 chase money insufficient. 427 
 is nugatory in case of actual col- 
 lusion. 427 
 right of covenantor to new trial, 
 
 427 
 must be unequivocal, certain and 
 
 explicit. 427 
 
 mere knowledge of action insuffi- 
 cient. 428 
 
 effect of notice to prosecute eject- 
 ment, 428 
 no particular form of, necessary. 
 
 428 
 
 need not be in writing, 429 
 if not given, judgment not even 
 prima facie evidence of title, 429 
 
 Warranty, Covenant of Continue.!, 
 must be given in reasonable time. 
 
 430 
 
 fact of, is question for jury, 430 
 sufficiency of, is question for court, 
 
 430 
 not indispensable to recovery on 
 
 warranty, 430 
 merely dispenses with proof of 
 
 title in evictor, 430 
 but covenantee must always 
 show that such title was not 
 derived from himself, 431 
 pleadings in action for breach of 
 
 warranty, 433 
 
 covenant must be set out in sub- 
 stance, 433 
 eviction by one having lawful 
 
 right must be averred, 434 
 not sufficient merely to negative 
 
 words of covenant" 434 
 but nature of eviction need not be 
 
 alleged, 434 
 title of evictor need not be set 
 
 forth, 434 
 reliance on warranty need not be 
 
 alleged, 435 
 
 must aver that title of evictor was 
 
 older than that conveyed, 434 
 
 unless warranty was limited to 
 
 claims of a particular person. 
 
 434 
 
 notice and request to defend need 
 
 not be averred, 435 
 must aver that title of evictor wa 
 
 within the covenant, 435 
 burden of proof lies on plaintiff, 43"> 
 but shifts under certain circum- 
 stances, 435 
 
 warranty is proven by the deed, 
 
 without proof of execution, 43G 
 
 detention of purchase money on 
 
 breach of, 442. (See PUBCHASE 
 
 Mam.) 
 
 WilL 
 
 objections to title apparent on face 
 
 of, 174 
 
 mistake in, cannot be corrected, 560 
 questions of title arising on con- 
 struction of, 766 
 
 Words of conveyance. 
 
 indispensable in deed. (See DEED.) 
 
 [WHOLE NUMBER OF PAGES, 986.]
 
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 UNIVERSITY OF CALIFO 
 
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