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MARKETABLE TITLE 
 
 TO 
 
 REAL BSTATE 
 
 BEING ALSO 
 
 A TREATISE 
 
 ON THE 
 
 Rights and Remedies of Vendors and Purchasers 
 OF Defective Titles 
 
 INCLUDING THE 
 
 Law of Covenants for Title, the Doctrine of Specific 
 Performance, and other Kindred Subjects 
 
 BY 
 
 CHAPMAN W. MAUPIN 
 
 OF THE WASHINGTON, D. C, BAR 
 
 NEW YORK 
 
 BAKER, VOORHIS & COMPANY 
 
 1896 
 
Bt baker, VOORHIS & CO. 
 
 JAMES B. LYON, 
 
 PBINTBRi ELECTROTYPER AND BINDER, 
 
 LYON BLOCK, ALBANY, r*. Y. 
 
THE AUTHOR 
 
 RESPECTFULLY INSCRIBES THESE LABORS 
 
 TO THE 
 
 Hon. EDWARD C. BURKS; 
 
 Late Judge of the Court of Appeals of the State of Virginia, 
 
 AS A TOKEN OF RESPECT 
 
 For his character as a man, his indefatigable research as a student, his 
 
 attainments as a lawyer, and his services to the state 
 
 and community in which he lives. 
 
PREFACE. 
 
 This work is a treatise on the law of title to real property, as that 
 law is applied between vendor and purchaser. The material which 
 composes it has been drawn principally from cases that have arisen 
 between the buyer and seller of lands, and not from decisions in 
 ejectment, or other possessory actions, though of course these latter 
 cases liave 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 respect a 
 treatise upon real property, real property tenures, nor titles to real 
 estate, in the sense in which this last term is commonly used, but is, 
 instead, a collation of the laws and decisions which govern the rights 
 of both parties with respect to the title, and prescribe the remedies 
 of the purchaser ; precautionary, where it is anticipated that the title 
 may prove defective, and compensatory, where it has proven to be 
 so. Therefore, what circumstances will entitle a vendee to protec- 
 tion as a honafide purchaser for value without notice, or will sustain 
 his title in ejectment, or will support his bill to remove a cloud from 
 the title, have not been made the subject of separate and independ- 
 ent treatment in this work, and have been considered only so far as 
 they have served to illustrate some principle of the law of defective 
 titles, as applied between vendor and purchaser. That law is to be 
 found dispersed through the text books, and through the reports and 
 digests under the several heads of Yendor and Purchaser, Covenants 
 for Title, Specific Performance, Equity Jurisprudence, Deeds, 
 Titles to Real Estate, Eeal 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 dis- 
 pose 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 treatise upon the 
 riabts of vp.ndors and nurchasers of defective titles, includine as 
 
Yl PEEFACE. 
 
 ■well the law of covenants for title as the equitable doctrine of 
 doubtful titles. But originally the term was narrow and technical 
 in its meaning, being used in equity to denote a title concerning 
 which there was no reasonable doubt. The term was not known in 
 the law courts, where titles were treated either as good or bad, and 
 judgment rendered accordingly. Hence at law a title might be 
 adjudged good which in equity the purchaser would not be com- 
 pelled to accept. A small but learned and abstruse treatise upon 
 the equitable doctrine of marketable titles by S. Atkinson was 
 published in London and republished in America (1838) in the " Law 
 Library ; " from this work the limited and technical signiiicance 
 of the expression will appear. Of late years, however, the American 
 courts have very generally applied the term "unmarketable" 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 " defective " 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 incon- 
 venience can arise from treating imder 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 tlie many facilities for the 
 prosecution of his labors which have been afEorded him in a 
 generous manner by his publishers, Messrs. Baker, Voorhis & Co., 
 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. 
 
ANALYSIS. 
 
 BOOK I. 
 
 Of remedies in affirmance of tlie 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 bi'each of contract. 11 
 
 Title which the purchaser may demand. 20 
 
 Implied and express agreements as to the title. 30 
 Sufficiency of the conveyance. 40 
 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. 309 
 Action for deceit. 332 
 Of proceedings at law after the contract has been executed. 353 
 Action for covenant broken. 353 
 
 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 
 Right of the purchaser to perfect the title. 481 
 Specific performance of covenants for title. 489 
 Estoppel of the grantor. 493 
 Reformation of the conveyance. 526 
 
VIU ANALYSIS. 
 
 BOOK II. 
 
 Of remedies in diaaffirmance 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. 616 
 Restitution of the purchase money where there are covenants. 643 
 Fraud in respect to the title. 647 
 Of rescission by proceedings in equity. 656 
 Where the contract is executory. 656 
 
 Suit for rescission and defenses to suit for specific performance. 
 656 
 The doctrine of doubtful titles. 673 
 Right of the vendor to perfect the title. 741 
 Right to i-equire the purchaser to take the title with 
 compensation. 769 J 
 Where the contract has been executed. 778 
 Injunction. 778 
 Fraud and mistake. 798 
 
CONTENTS. 
 
 BOOK I. 
 
 Of Eemedies m Affirmance op the Conteact of Sale. 
 Of Affirmance by Pkoceedings at Law. 
 
 Of Proceedings at Law While the Contract is 
 Executory. 
 
 CHAPTER I. 
 Intboduotort. 
 
 CHAPTER II. 
 Action fob Bbbach of Contract. 
 
 General principles; form of action. § 1 
 
 Doubtful title in action for damages. § 3 
 
 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 sale. § 7 
 
 Auctioneer's declarations. Parol evidence. § 8 
 
 English rules as to conditions. § 9 
 
 Agreement to make a " good and sufficient deed." § 10 
 
 Agreement to convey by quit claim. § 11 
 
 Agreement to sell "right, title and interest." § 12 
 
 Agreement to sell subject to liens. § 13 
 
 CHAPTER IV. 
 
 Of the Siifpicibncy op the Conveyance Tendered by the Vendor. 
 
 General observation. § 14 
 
 Essential requisites of fhe conveyance. § 15 
 
 Material, printing, etc. § 16 
 
 Date. §17 
 
 Parties. § 18 
 
 Words of conveyance. § 19 
 ii 
 
CONTENTS. 
 
 Description of the premises. § 20 
 
 Description of the estate or interest conveyed, g 31 
 
 Signature and seal. § 22 
 
 Attestation or acknowledgment. § 23 
 
 (a) Venue of the certificate. §24 
 
 (b) Name and official designation of certifying officer. 
 
 ( c ) Name of grantor. § 26 
 
 (d) Annexation of deed. §27 
 
 (e) Jurisdiction of certifying officer. § 28 
 
 ( f ) Personal acquaintance with grantor. § 29 
 
 (g) Pact 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 
 
 ( s ) Amendment of certificate. § 41 
 Reservation, restrictions and conditions. § 42 
 Waiver of objections to the conveyance, g 43 
 
 §35 
 
 CHAPTER V. 
 
 Caveat Emptor. 
 General observations. § 44 
 
 Application of the maxim to judicial sales: 
 
 Inherent defects of title. § 45 
 
 Effect of confirmation of the sale. § 46 
 
 Exceptions to the rule. § 47 
 Fraud as it affects rights of purchasers at judicial sales. § 48 
 Errors and irregularities in the proceedings. Collateral attack. 
 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 
 
 §49 
 
CONTENTS. XI 
 
 Fraudulent representations. § 59 
 
 Eights of purchaser from purchaser under execution. § 60 
 Title under void j udgment. § 61 
 Title under void sale. § 63 
 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 Purchaser has a Right to Demand. 
 Usual covenants. § 67 
 From grantors in their oven right. § 68 
 From fiduciary grantors. § 69 
 From ministerial grantors. § 70 
 
 CHAPTER Vn. 
 
 Abstract op Title. 
 In general. § 71 
 
 Root of title. § 72 
 
 Duty to furnish abstract. § 73 
 
 Property in the abstract. § 74 
 
 Time in vchich to examine the title and verify the abstract. § 75 
 
 Summary of the various sources of objections to title. § 76 
 
 Objections appearing from the instruments under which title is claimed. § 77 
 
 Objections which appear from the public records. § 78 
 
 Objections which appear upon inquiries in pais. § 79 
 
 CHAPTER VIII. 
 
 Waiver of Objections to Title. 
 In general. § 80 
 
 Waiver by taking possession. § 81 
 Laches of purchaser. § 83 
 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, g 88 
 
 Pleadings. § 89 
 
XU CONTENTS. 
 
 CHAPTER X. 
 
 Mbasubb of Damages for Inabilitt to Contbt a Good Trxi-K. 
 
 General observations. § 90 
 
 Where the vendor acts in good faith: 
 
 Flureau v. Thomhill. 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 obtair. the title. § 98 
 Where the vendor refuses to perfect the title. § 99 
 Liquidated damages. § 100 
 
 CHAPTER XI. 
 
 Action Against the Vendor foe Deceit. 
 
 General principles § 101 
 
 What constitutes fraud with respect to the title: 
 
 Concealment of defects, g 102 
 
 Willful or careless assertions. § 103 
 
 Defects which appear of record. § 104 
 
 Existence of fraudulent intent. § 105 
 
 Statements of opinion. § 106 
 Pleading. § 107 
 
 Of Affikmance by Proceedings at Law After the Contract has 
 Been Executed — Action for Covenant Broken. 
 
 CHAPTER XII. 
 Of the Covenant for Seisin. 
 
 Porm and effect. § 108 
 
 What constitutes a breach. § 109 
 
 Assignability of this covenant : 
 
 In general. § 110 
 
 Does not run with the land. § 111 
 
 Contrary rule. Doctrine of continuing breach. 1 113 
 
 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 Incumbrances. 
 Form. § 119 
 
 Restrictions and exceptions. § 120 
 
 Parol agreements. § 121 
 What constitutes breacli. § 122 
 
 Definition of incumbrance. § 123. 
 
 Pecuniary charges and liens. Eflect of notice. § 124 
 
 Outstanding interest less than a fee. § 125 
 
 Easements or physical incumbrances. § 126 
 
 Notice of easement at time of purchase. § 127 
 Assignability of this covenant. § 128 
 Measure of damages : 
 
 General rules. § 129 
 
 Where covenantee discharges the incumbrance. § 130 
 
 Damages cannot exceed purchase money and interest. § 131 
 
 Where incumbrance is permanent. § 132 
 Pleading and proof. § 138 
 
 CHAPTER XIV. 
 
 Covenants of Wabranty and tor Quiet Enjoyment. 
 Form. § 134 
 
 Construction and eflect. § 135 
 Qualifications and restrictions. § 136 
 When implied. § 137 
 Parties bound and benefited : 
 Married women. § 138 
 
 Heirs and devisees. Joint covenantors. § 139 
 Personal representatives. § 140 
 Who may sue for breach. § 141 
 What constitutes breach: 
 
 Tortious disturbances. § 142 
 
 Eminent domain and acts of sovereignty. § 143 
 
 Actual eviction: 
 
 General rule. § 144 
 
 Entry by adverse claimant. Legal process. § 145 
 Constructive eviction: 
 
 Inability to get possession. | 146 
 Vacant and unoccupied lands. § 147 
 Surrender of possession. § 148 
 Hostile assertion of adverse claim. § 149 
 Purchase of outstanding title. § 150 
 Hostile assertion of adverse claim. § 151 
 Loss of incorporeal rights. § 152 
 
XIV 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 by immediate covenantee. § 156 
 
 Quit claim passes henefit 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. § 163 
 
 Covenant extinguished by reconveyance to covenantor. § 163 
 Measure of damages: 
 
 General rule. § 164 
 
 New England rule, g 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. § 173 
 
 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 pok Further Assurance. 
 In general. § 178 
 
 Breach. Estoppel. Assignability. Damages. § 179 
 
 CHAPTER XVI. 
 Detention op the Purchase Monet where there has been a Breach of 
 
 THE Covenants for Title. 
 General rule. § 180 
 
 Merger of prior agreements in covenants for title. § 181 
 
 Purchase with knowledge of defect. § 183 
 
 Recoupment. § 183 
 
 Recoupment in foreclosure of purchase-money mortgage. § L84 
 
 Partial failure of consideration. § 185 
 
 Assumpsit to try title. § 186 
 
 "What constitutes eviction. § 187 
 
 Discharge of incumbrances. § 188 
 
CONTENTS. XV 
 
 Rule in Texas. § 189 
 Rule in South Carolina. § 190 
 Pleadings. § 191 
 Resume. § 192 
 
 Or Affiemanob of the Conteaot by Proceedings in Equity. 
 
 CHAPTER XVII. 
 
 Specific Perfobmanch 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 DBFBCTa 
 
 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 op the Purchaser to Perfect the Title. 
 
 By the purchase of adverse claims. § 202 
 
 By the discharge of liens or incumbrances. § 203 
 
 Subrogation of purchaser. § 304 
 
 CHAPTER XX. 
 
 Of Specific Performance of Covenants for Title. 
 
 General rules. § 205 
 
 Covenant against incumbrances. § 306 
 
 Conveyance of after-acquired estate. § 807 
 
 CHAPTER XXI. 
 
 Estoppel of the Grantor. 
 General rules. § 308 
 
 After-acquired estate must be held in same right. § 209 
 Mutual estoppels. § 210 
 Estoppel of mortgagor. § 311 
 Effect of void conveyance as an estoppel. § 212 
 
 Effect of estoppel as an actual transfer of the after-acquired estate. § 813 
 Rights of purchaser of the after-acquired estate from the covenantor. § 214 
 
XVI CONTENTS. 
 
 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 
 
 CHAPTER XXII. 
 
 RePOBMATION of the CONVEyANCB. 
 
 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. § 325 
 
 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. § 330 
 
 Purchasers and creditors. § 331 
 
 Volunteers. § 232 
 
 Married women. § 233 
 
 BOOK II. 
 
 Of Remedies in Rescission or Disaffikmanob of the Conteact of 
 
 Sale. 
 
 CHAPTER XXIII. 
 
 Op Rescission by Act op the Pakties. 
 
 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 Executory. 
 
 CHAPTER XXIV. 
 
 Of the Right to Recovbr Back or Detain the Purchase Monet on 
 
 Fallurb of the Title. 
 General principles. § 237 
 
 Restitution of the purchase money. § 238 
 
 What action purchaser should bring. § 239 
 
CONTENTS. XVU 
 
 Detention of the purchase money. § 340 
 
 Exceptions and qualifications. § 241 
 
 What objections to title may be made. § 243 
 
 Expenses of examining the title. § 243 
 
 Burden of proof. Miscellaneous rules. § 344 
 
 Eight 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. § 349 
 
 Bight to enjoin collection of purchase money. § 250 
 
 Rights against transferee of purchase-money note. § 251 
 
 Refusal of vendor to convey for want of title. § 352 
 
 Tender of purchase money and demand of deed. § 353 
 
 Offer to rescind. § 354 
 
 Pleadings. § 355 
 
 CHAPTER XXV. 
 
 Of the Obligation of the Pubchasbk to Restobb the Premises to the 
 
 Vendor. 
 General principles. § 356 
 
 Vendor must be placed in statu quo. % 257 
 
 Restoration of premises a condition precedent to rescission. § 258 
 
 Rule in Pennsylvania. § 359 
 
 Restoration of the premises in cases of fraud. § 360 
 
 When purchaser need not restore the premises. Purchaser's lien. § 361 
 
 Other exceptions. § 363 
 
 Restoration of the premises where the contract is void. § 363. 
 
 Of Vietual Rescission by Peoceedings at Law aftee the Con- 
 teact has been executed. 
 
 Detention of the Puechase Money. 
 
 CHAPTER XXVI. 
 
 Of Detention of the Purchase Mojset where there has been a Breach 
 
 OF THE Covenant of Seisin. 
 General rule. § 364 
 Qualifications of this rule. § 265 
 Breach of covenant as to part of the premises. § 266 
 
 CHAPTER XXVII. 
 
 Of the Detention or Restitution of the Pprchasb Monet where the 
 Deed Contains no Covenants for Title. 
 
 General principles. § 367 
 Exception. Void conveyances. § 368 
 iii 
 
XVlll CONTENTS. 
 
 Merger of prior agreements in the deed. § 269 
 
 Merger in cases of fraud. § 270 
 
 Rule in Pennsylvania as to detention of tlie purchase money. § 271 
 
 CHAPTER XXVIII 
 Of Restitution of the Purchase Mokey where there are Covenants fob 
 
 General rule. § 272 
 Exceptions. § 273 
 
 CHAPTER XXIX. 
 
 Of Detention or Restitution of the Purchase Money in Oases of Fraud. 
 
 General rule. § 374 
 Executed contracts. § 275 
 Waiver of fraud. § 276 
 
 Of E,escission by Peoceedings in Equity. 
 "Where the Conteact is Executoey. 
 
 CHAPTER XXX. 
 Of the Suit for Rescission Proper. 
 
 General principles. § 377 
 
 Defenses to suits for specific performance. § 278 
 
 Placing the vendor in statu quo. § 379 
 
 Interest. Rents and profits. Improvements. § 280 
 
 Pleading. § 281 
 
 Parties. § 383 
 
 CHAPTER XXXI. 
 
 Of Doubtful Titles. 
 ' General rules. § 283 
 
 Classification of cases of doubtful titles. § 384 
 
 Cases in which the title will be held free from doubt. § 285 
 
 Doubtful titles at law. § 386 
 
 Inconclusiveness of judgment or decree. § 387 
 
 Special agreements as to the title. § 288 
 
 Parol evidence to remove doubts. § 889 
 
 Equitable title. Adverse claims. § 390 
 
 Defeasible estates. § 291 
 
 Title as dependent upon adverse possession. § 293 
 
 Presumptions from lapse of time. § 293 
 
 Title as affected by notice. § 294 
 
 Burden of proof. § 395 
 
 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. § 399 
 
CONTENTS. xix 
 
 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 
 Incumbrances. § 304 
 
 Admitted incumbrances. § 305 
 
 Incumbrances which make the title doubtful. § 306 
 
 Apparently unsatisfied incumbrances. § 307 
 
 CHAPTER XXXII. 
 Of the Right of the Vendok to Perfect the Title. 
 Before the time fixed for completing the contract, g 308 
 After the time fixed for completing the contract. § 309 
 Exceptions: (1) Where time is material. § 310 
 (3) 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. § 818 
 In what proceedings the right may be asserted. § 319 
 Reference of the title to master in chancery: 
 
 When directed § 320 
 When refused. § 331 
 
 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. § 825] 
 
 Exceptions. § 326 
 
 Indemnity against future loss. § 337 
 
 CHAPTER XXXIV. 
 
 Of the Remedy by Injunction against the Collection of the Purchase 
 
 Money. 
 General observations. § 328 
 Fraud on the part of the grantor. § 339 
 Want of opportunity to defend at law. § 330 
 Insolvency or non-residence of grantor. § 331 
 
XX CONTENTS. 
 
 Where the estate is incumbered. § 632 
 Foreclosure of purchase-money mortgage. § 333 
 Where there are no covenants for title. § 334 
 Temporary and perpetual injunctions. § 335 
 Resume. § 336 
 Where there is no present right to recover substantial damages for breach of the 
 covenants. § 337 
 
 Of Eescission by Peoceedings in Equity after the Conteact 
 
 HAS BEEN Executed. 
 
 CHAPTER XXXV. 
 
 Op Fraud 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 
 
TABLE OF OASES. 
 
 A. 
 
 Abbott V. Allen, 355, 357, 374, 376, 435, 
 
 436, 606, 793 
 Abbott V. Hills, 363 
 Abbott V. James. 687, 736 
 Abbott V. Eonan, 353 
 Abby V. Goodrich, 363 
 Abel V. Hethcote, 695 
 Abendroth v. Greenwood, 34 
 Abercrombe v. Oswego, 454 
 Aberdeen t. Blackman, 380 
 Abernathy v. Boazman, 358, 335 
 Abernathy v. Phillips, 313 
 Able V. Chandler, 113 
 Abrams v. Rhoner, 700, 703, 706 
 Ackerman v. Smiley, 519 
 Adair v. McDonald, 546 
 Adams v. Conover, 357, 358, 389 
 Adams v. Fairbain, 566 
 Adams v. Gigney, 331 
 Adams v. Heathcote, 189, 191 
 Adams v. Kibler, 83 
 Adams v. James, 350 
 Adams v. Messenger, 468 
 Adams v. Reed, 537, 610 
 Adams V. Ross, 339, 519, 530 
 Adams v. Smith, 141 
 Adams v. Stevens, 545 
 Adams v. Valentine, 730, 775 
 Adamson v. Rose, 313 
 Aday v. Echols, 465 
 Addlemau v Mormon, 789 
 Adkins v. Tomlinson, 358, 373 
 Agan V. Shannon, 105 
 Aiken v. Franklin, 356 
 Aikin v. McDonald, 878, 383, 393 
 Aikin v. Sanford, 33 
 Ake V. Mason, 398 
 Akerly v. Vilas, 603 
 Ala. Life Ins. Go. v. Boykin, 67 
 Alday v. Rock Island Co., 118 
 Alden v. Parkhill, 447 
 Alexander v. Kerr, 194 
 Alexander v. McAuley, 617 
 Ale.xander v. Merry, 63 
 Alexander v. Mills, 678, 680, 681 
 Alexander v. Newton, 533 
 Alexander v. Schreiber, 304 
 Alexander v. Utley, 193, 549 
 Alkus V. Goettmann, 736 
 Allaire v. "Whitney, 654 
 Allen V. Allen, 264 
 Allen V. Anderson, 313, 315, 533 
 Allen V. Atkinson, 166, 564, 709 
 Allen V. Denoir, 67 
 Allen V. Elder, 533 
 Allen V. Hammond, 804 
 
 Allen V. Hazen, 148, 149 
 
 Allen V. Holton. 338, 519 
 
 Allen V. Hopson, 569, 653, 781 
 
 Allen V. Kennedy, 264, 360 
 
 Allen V. Lee, 383, 335 
 
 Allen V. Little, 266, 361, 364 
 
 Allen V. Pegram, 433, 616 
 
 Allen V. Phillips, 575, 696, 701 
 
 Allen V. Sayward, 513 
 
 Allen V. Thornton, 783, 784 
 
 Allen V. Yeater, 149 
 
 Allis V. Nininger, 347, 349 
 
 Allison V. Allison, 336, 341 
 
 Allison V, Shilling, 473, 474 
 
 Almy V. Hunt, 388 
 
 Alvarez v. Brannan, 13, 511, 638, 758 
 
 Alvord v. Waggoner, 343, 364 
 
 American Assoc, v. Short, 606 
 
 Amos V. Cosby, 309, 354 
 
 Amick V. Bowyer, 575 
 
 Anderson v. Ander,son, 180 
 
 Anderson v. Foulke, 78 
 
 Anderson v. Knox, 309, 310. 357 
 
 Anderson v. Lincoln, 194, 434, 615, 793 
 
 Anderson v. Long, 634 
 
 Anderson v. Snyder, 769 
 
 Anderson v. Strasburger, 167, 744, 745, 
 
 693 
 Anderson v. Washabangh, 343, 399, 
 
 637 
 Andrews v. Appel, 367, 306, 307, 313 
 Andrews v. Babcook, 668, 695, 741, 757 
 Andrews v. Richardson, 137, 140 
 Andrews v. Spurrs, 531 
 Andrews v. Ward, 148, 731 
 Andrews v. Wolcott, 363, 367 
 Andrews v, S. & L. Smelting Co., 341, 
 
 349, 337, 395, 629 
 Ankeny v. Clark, 149, 668, 695, 768, 773 
 Anonymous, 418 
 Appleton V. Banks, 156 
 Appowel v. Monnoux, 364 
 Arbib, In re, 479 
 Archer v. Archer, 733 
 Argall V. Raynor, 687, 713, 718 
 Arledge v. Brooks, 306 
 Armstead v. Hundly, 351, 803, 804 
 Armstrong's App., 116 
 Armstrong v. Darby, 417, 489 
 Armstrong v. Harshorn, 103 
 Arnold v. Carl, 789 
 Arustein v. Burroughs, 775 
 Arrison v. Harmstead, 181 
 Arthur v. Weston, 46 
 Asay V. Lieber, 635 
 Ash V. Holder, 481 
 Ashbaugh v. Murphy, 74 
 Ashburner v. Sewell, 196, 479 
 
xxu 
 
 TABLE OF CASES. 
 
 Ashworth v. Mounsey, 28 
 
 Astor V. Miller, 361,367 
 
 Athens v. Nale, 322 
 
 Athey v. McHenry, 530 
 
 Atkins V. Bahrett, 36 
 
 Atkinson v. Taylor, 677, 722 
 
 Atty.-Gen. v. Day, 46S, 469, 776 
 
 Atty.-Gen. v. Purmort, 328 
 
 Atwood V. Chapman, 632 
 
 Atwood V. Frost, 116 
 
 Aufricht v. Northrup, 281, 283, 325 
 
 Austin V. Ewell, 458, 468 
 
 Austin V. McKinney, 354 
 
 Austin V. Richards, 326 
 
 Auwerter v. Mathiot, 118, 126 
 
 Aven V, Beckom, 155 
 
 Averett v. Lipscombe, 25, 32, 690, 759 
 
 Averell v. Wilson, 523 
 
 Avery v. Aikens, 517 
 
 Avery v. Dougherty, 330, 339 
 
 Axtel v. Chase, 199, 348, 350, 537, 665 
 
 Ayer v. Brick Co., 285 
 
 Aylett V. Ashton, 470, 776, 777 
 
 Ayling v. Kramer, 295 
 
 Ayres v. Mitchell, 193 
 
 B. 
 
 Babbitt v. Doe, 103 
 
 Babcock v. Case, 238, 242, 591, 647, 664, 
 
 801 
 Babcock v. Collins, 46 
 Babcock v. Day, 640 
 Babcock v. Trice, 446 
 Babcock v. Wilson, 38, 150 
 Bacchus V. McCoy, 353, 264, 368 
 Backhurst v. Mayo, 127 
 Bacon v. Lincoln, 275, 276 
 Bagley v. Fletcher, 148 
 Bailey v. James, 37, 475, 659, 773 
 Bailey v. Hopper, 502 
 Bailey v. Miltenberger, 340 
 Bailey v. School, 9U 
 Bailey v. Smock, 242 
 Bailey v. Snyder, 635 
 Bailey v. Timberlake, 544 
 Bain v. Fothergill, 213, 224, 466 
 Bainbridge v. Kinnaird, 470 
 Baird v. Goodrich, 604, 779, 784 
 Baird v. Laevison, 785 
 Baker v. Baker, 89 
 Baker v. Corbett, 215, 385, 481 
 Baker v. Howell, 443 
 Baker v. Hunt, 255 
 Baker v. Massey, 532, 543 
 Baker v. Pyatt, 543, 546 
 Baker v. Railsback, 446, 472 
 Baker v. Shv, 737, 744 
 Baldridge v. Cook, 196 
 Baldry v. Parker, 773 
 Baldwin v. Munn, 210, 312, 214 , 216 
 Baldwin v. Kerliu, 533 
 Baldwin v. Salter, 746 
 Balfour v. Whitman, 393 
 Ballard v. Burroughs, 335 
 
 Ballard v. Child, 328 
 
 Ballard v. Johns, 115 
 
 Ballard v. Way, 30 
 
 Ballard v. Walker, 191 
 
 Ballentine v. Clark, 541 
 
 Ballou V. Lucas, 633 
 
 Balmanno v. Lumley, 470, 773, 776 
 
 Baltimore, etc., Society v. Smith, 313 
 
 Bandy v. Cortright, 331 
 
 Bangs V. Barrett, 768 
 
 Bank v. Bank, 800 
 
 Bank v. Baxter, 237 
 
 Bank v. Ettingo, 664 
 
 Bank v. Mersereau, 460, 503, 510 
 
 Bank v. Risley, 130 
 
 Bank of Col. v. Hayner, 189 
 
 Bank of U. S. v. Bank of Wash,, 137 
 
 Bank of U. S v. Cochran, 93 
 
 Bank of U. S. v. Daniel, 813 
 
 Banks v. Ammon, 52, 113, 237, 636 
 
 Banks v. Walker, 437, 616, 643, 791 
 
 Banks v. Whitehead, 345, 413 
 
 Bannister v. Higginson, 103 
 
 Bannister v. Read, 555 
 
 Baptiste v. Peters, 246, 801, 803 
 
 Barbour v. Hickey, 463, 473 
 
 Barbour v. Nichols, 314 
 
 Bardeeu v. Markstrum, 436 
 
 Bardell v. Trustees, 334 
 
 Bardsley's Appeal, 668 
 
 Barickman v. Kuykendall, 597, 776 
 
 Barker v. Circle, 513 
 
 Barker v. Kuhn, 374 
 
 Barkhamstead v. Case, 617 
 
 Barlow v. Delaney, 70, 335, 341, 354 
 
 400 
 Barlow v. McKinley, 301 
 Barlow v. St. Nicholas Bank, 291 
 Barlow v. Scott, 150 
 Barnard v. Duncan, 153, 154 
 Barnard v. Lee, 751, 759 
 Barnes' Appeal, 468 
 Barnes v. Bartlett, 533 
 Barnes v. U. P. R. Co., 340 
 Barnes v. Wood, 467 
 Barns v. Wilson, 397 
 Barnett v. Clark, 603, 784 
 Barnett v. Garnis, 188 
 Barnett v, Hughey, 155, 373 
 Barnett v. Montgomery, 3A5 898 
 Barnett v. Shackelford, 64 
 Barnhart v. Hughes, 390 
 Barnwell v. Harris, 700 
 Barr v. Gratz, 503 
 Barr v. Greeley, 353, 386 
 Barr v. Flemings, 340 
 Barrere v. Bartet, 340 
 Barrett v. Churchill, 83 
 Barrett v. Gaines, 748 
 Barrett v, Hughey, 383 
 Barrett v. Porter, 344 
 Barron v. Easton, 13 
 Barron v. Mullin, 78 
 Barrow v. Bispham, 33 
 Barry v. Guild, 346, 616 
 
TABLE OF CASES. 
 
 XXIU 
 
 Bartee v. Tompkins, 113 
 
 Bartholomew v. Oaudee, 263 
 
 Bartle v. Curtis, 738 
 
 Bartlett v. Blanton, 723 
 
 Bartlett v. Parrington, 339 
 
 Bartlett v. LondoQ, 124 
 
 Bartlett v. Salmon, 731 
 
 Barton v. Bouvien, 773 
 
 Barton v. Long, 247 
 
 Barton v. Morris, 53, 500 
 
 Barton v. Rector, 189, 559 
 
 Bartlett v. London, 574 
 
 Bartlett v. Tarbell, 424 
 
 Basford v. Pearson, 258 
 
 Baahore v. Whisler, 109, 641 
 
 Baskin v. Houser, 767 
 
 Bass V. Gilliland, 469, 767 
 
 Bassett v. Lockwood, 118, 136, 140, 141 
 
 Bassett v. Welch, 289 
 
 Baston v. Clifeord, 206, 555, 665 
 
 Batclielder v. Curtis. 311 
 
 Batchelder v. Macon, 672, 689 
 
 Batchelder v. Sturgis, 293, 314 
 
 Bateman v. Johnson, 36, 47 
 
 Bateman's Petition, 67 
 
 Bates V. Bates, 539 
 
 Bates V. Delavau, 616, 645, 660, 802, 805, 
 
 806 
 Bates V. Foster, 328 
 Bates V. Lyons, 745 
 Bates v.Swiger, 458, 469, 488 
 Bntley v. Poederer, 730 
 Batterman v. Pierce, 425 
 Battle V. Rochester City Bank, 555 
 Baugh V. Price, 187 
 Baum V. Dubois, 200 
 Baxter v. Aubrey. 564, 709 
 Baxter v. Bradbury, 255, 272, 510, 511 
 Baxter v. Howell, 58 
 Baxter v. Lewis, 199 
 Baxter v. Ryerss, 364 
 Bayliss v. Stinson, 680, 684, 685 
 Bayues v. Bernhard, 203 
 Baze V. Arper, 69 
 Beach v. Packard, 356 
 Beach v. Miller, 298 
 Beach v. Waddell, 425, 445, 607 
 Beal V. Beal, 514 
 Beale v. Seively, 438, 794 
 Beall V. Davenport, 481, 524 
 Beall V. Taylor, 833 
 Beaman v. Simmons. 550 
 Beamau v. "Whitney, 58 
 Beams v, Mila, 723 
 Bean v. Herrick, 238 
 Bean v. Mayo, 288, 307 
 Bearce v. Jackson, 255 
 Beard v.- Delaney, 328, 230, 439, 602 
 Beardslee v. Underbill, 692, 720 
 Beardsley v. Knight, 360, 363, 363 
 Beauchamp v. Handley, 761 
 Beauchamp v. Winn, 818 ^ 
 Beauman v. Whitney, 46 
 Beaumont v. Yeatman, 60 
 Beaupland v. McKeen, 393, 633, 634, 636 
 
 Beck V. Bridgman, 468 
 
 Beck V. Simmons, 188, 197, 527, 606, 
 
 659 
 Beck V. Ulrich, 633 
 Beokman v. Henn, 374 
 Beckwith v. Kouns, 701 
 Bedell v. Smith, 17, 201 
 Beddoe v. Wadsworth, 361, 337, 360, 
 
 363, 369 
 Beebe v. Swartwout, 260, 341, 351, 436, 
 
 524, 599, 607, 645 
 Beech v. Steele, 35 
 Beecher v. Baldwin, 379 
 Beer v. Leonard, 678 
 Beeson v. Beesou, 137 
 Beidelman v. Pouik, 637 
 Beioley v. Carter, 679, 680 
 Belcher v. Weaver, 67, 71 
 Belden v. Seymour, 155, 156, 383 
 Bell V. Adams, 502 
 Bell V. Duncan, 173 
 Bell V. Flaherty, 120 
 Bell V. Higgins, 342 
 Bell V. Holtby, 680 
 Bell V. Kennedy, 203 
 Bell V. Sternberg, 761 
 Bell V. Thompson, 477 
 Bell V. Twilight, 517, 519 
 Bell V. Vana, 191 
 Bell V. Woodward, 51 
 Bellamy v. Ragsdale, 222 
 Bellefout Iron Wks. v. McQuire, 428 
 Bellinger v. Society, 340 
 Bellows V. Litchfield, 396, 405 
 Belmont v. Coi-nan, 283 
 Belmont v. O'Brien, 737, 739 
 Bell v. Thompson. 433 
 Bellamy v. Raysdale, 585 
 Bellows v. Cheek, 572, 578 
 Bellows V. Litchfield, 364 
 Bemis v. Bridgman, 616 
 Bemis v. Smith, 355 
 Bender v. Fromberger, 263, 369, 270, 
 
 376, 338, 341, 376, 393 
 Benedict v. Oilman, 322 
 Benedict v. Williams, 756 
 Benjamin v. Hobbs, 663 
 Bennet Col. v. Cary, 457 
 Bennett v. Abraras, 430 
 Bennett v. Adams, 460 
 Bennett v. Bittle, 339 
 Bennett v. Caldwell, 139 
 Bennett v. Fuller. 11 
 Bennett v. Jenkins, 269, 311, 393, 396 
 Bennett v. Waller, 417, 418, 512, 517 
 Bennett v. Womack, 145 
 Bennett's Case, 418 
 Benningfield v. Reed, 93 
 Bensel v. Gray, 133, 482 
 Benson v. Coleman, 573 
 Benson v. Markol, 532, 815 
 Benson v. Shotwell, 480, 594, 690, 703, 
 
 721 
 Benson v. Yellott, 90 
 Bentley v. Craven, 694, 696 
 
XXIV 
 
 TABLE OF CASES. 
 
 Bentley v. Long, 137 
 
 Bergen v. Eby,"536 
 
 Berrian v. Rogers, 117 
 
 Berry v. Armstead, 799 
 
 BeiTy V. Billings, 43 
 
 Berry v. Lowell, 544 
 
 Berry v. Van Winkle, 466 
 
 Berry v. "\\"alker, 485 
 
 Berry v. Webb, 530 
 
 Berryman v. Schumaker, 731 
 
 Bertram v. Curtis, 297 
 
 Bethell v. Bethell, 145, 146, 247 251. 
 
 268, 269, 423, 507, 617 
 Bethune v. McDonald, 458, 454 
 Betts V, Union Bank, 383 
 Bever v. North, 348, 358, 356, 402, 624 
 Beverly v. Lawson, 468, 768 
 Bevins v. Vansant, 506 
 Beyer v. Braender, 56o 
 Beyer v. Schulze, 855, 857 
 Bibb V. Prather, 594 
 Bibb V. Wilson, 478 
 Bickford v. Page, 255, 265, 316, 364 
 Bickley v. Biddle, 112 
 Bicknc'll v. Comstock, 700 
 Bierer v. Fretz, 218 
 Bigelow V. Hubbard, 394 
 Bigelow V. Jones, 844 
 Bigham v. Bigliam, 381 
 Bigler v. Morgan, 47, 73, 158. 319 
 Binford's Appeal, 78, 713 
 Bingham v. Bingham, 807, 814, 816 
 Bingham v. Maxey, 109 
 Bingham v. Weiderwax, 383 
 Bircher v. Watkins, 272, 274, 376 
 Birdsall v. Walton, 463 
 Birney v. Hann, 364, 371 
 Bishop V. O'Connor, 77, 87, 113, 140 
 Eitner v. Brough, 310, 213, 219, 224, 473 
 Bitzer v. Orban, 665, 666 
 Bixby V. Smith, 714 
 Black ^'. Araan, 720 
 Black V, Barton, 337 
 Black V. Coon, 307 
 Black V. Croft, 569 
 Black V. Dressel, 116 
 Black V. Grant, 53 
 Black V. Gregg, 58 
 Black V, Stone', 537 
 Blackburn v. Randolpn, 541 
 Blackburn v. .Smith, 161, -WJ 
 Blackie v. Hudson, 288 
 Blacklow V. Laws, 163 
 Blackmore v. Shelby, 510, 753 
 Blackshire v. Homestead Co., 274 
 Blackwell v. Atkinson, 360 
 Black well v. Lawrence Co., 313, 315 
 Blair v. Claxtou, 444 
 Blair v. Perry, 448 
 Blair v. Rankin, 777 
 Blake v. Everett, 395 
 Blake v. Phinn. 38, 773 
 Blake v. Tucker, 5, 19 
 Blakemore v. Kimmons, 727 
 Blakeslee v, Ins. Co., 513 
 
 Blanchard v. Blanchard, 394, 338, 344, 
 
 347, 389 
 Blanchard v. Brooks, 338, 520 
 Blanchard v. Ellis, 507 
 Blanchard v. Hoxie, 370, 376, 411 
 Blanchard v. Stone, 193 
 Bland v. Bowie, 139 
 Bland v. Thomas, 413 
 Blanks v. Ripley, 449 
 Blanks v. Walker, 596 
 Blann v. Smith, 303 
 Blasser v. Moats, 433 
 Bledsoe v. Doe, 44 
 Bledsoe v. Little, 51 
 Bletz v. Willis, 433 
 Blevins v. Smith, 394 
 Bliss V. Negus, 633 
 Blodgett V. Hitt, 127, 487 
 Blondeau v. Sheridan, 359, 397, 304, 
 
 845 
 Bloom V. Welsh, 121 
 Bloom V. Wolf, 156, 878 
 Blossom V. Knox, 374 
 Blossom V. "Van Court, 388 
 Blydenburgh v. Cotheal, 261, 841, 36C 
 Boar V. McCormick, 640 
 Boas V. Farrington, 24 
 Board of Commrs. v. Younger, 235 
 Eoardman v. Taylor, 544 
 Boatman v. Wood, 373 
 Bobb V. Barnum, 48 
 Bodley v. Bodley, 648 
 Bodley v. McChord, 35i, 584 
 Boehm v. Wood, 746 
 Bogan V. Baughdrill, 468 
 Bogart V. Burkhalter, 638 
 Boggess V. Robinson, 151, 702 
 Boggs T. Bodkin, 703 
 Boggs V. Hargrave, 83, 84, 86 
 Bogy V. Bhoab. 513, 517, 520 
 Boiler Co. v. Gordon, 693 
 Bohanan v. Bohanan, 539 
 Bohm V. Fay, 701 
 Bohm V. Bohm, 519 
 Bolgiano v. Cook, 76, 90 
 BoUis V. Beacb, 495 
 Boiling V. Jones, 109, 110 
 Boiling V, Teel, 65 
 Bolton V. Branch, 163, 564 
 Bolton V. School Board, 700 
 Bond V. Ramsey, 113, 247. 348, 801 
 Bonham v. AValtna, 343, 596 
 Bonner v. Johnston, 463 
 Bonner V. Lesslv, 133 
 Booker v. Bell, 320, 343, 378, 408 
 Booker v. IMcriweather, 408, 433 
 Bool v. Mix, 257 
 Boon V. McHenry, 364, 273 
 Boone v. Armstrong, 498 
 Boone v. Chiles, 179 
 Boorum v. Tucker, 80 
 Booth V. Cook, 69 
 Booth V. Ryan, 193, 603 
 Booth V. Saflold, 201, 584 
 Booth V. Starr, 348, 365, 387 
 
TABLE OF CASES. 
 
 XXV 
 
 Boothby v. Hathaway. 255, 27') 
 
 Boothby v. Waller, 463 
 
 Boothroyd v. Engles, 60 
 
 Boreel v. Lawton, 345 
 
 Bordeaux v. Carr, 453 
 
 Borden v. Borden, 733 
 
 Bordewell v. Colie, 355 
 
 Boro V. Harris. 120 
 
 Bostick V. Winton, 119 
 
 Boston V. Binney, 442 
 
 Boston Steamboat Co. v. Manson, 340 
 
 Boswell V. Buchanan, 516 
 
 Boswell V. Mendheina, 681 
 
 Bostwiok V. Beach, 468 
 
 Bostwick V. Lewis, 629, 654 
 
 Bostwick V. Williams, 294, 324, 341 
 
 Botsford V. McLean, 537 
 
 Botsford V. Wilson, 616 
 
 Bott V. Maloy, 708 
 
 Botto V. Berges, 41 
 
 Bottorf V. Smith, 257, 268, 428 
 
 Bourg V. Niles, 780 
 
 Bowden v. Achor, 654 
 
 Bowen v. Jackson, 202 
 
 Bowen v. Mandeville, 14, 654 
 
 Bowen v. Thrall, 145, 446, 448 
 
 Bower v. Cooper, 21 
 
 Bowie V. Brahe, 775 
 
 Bowers v. Chanej', 90 
 
 Bowery Nat. Bank v. Mayor, 691 
 
 Bowles V. Stewart, 235 
 
 Bowley v. Holway, 439, 446 
 
 Bowliu V. Pollock, 805 
 
 Bowman v. Wittig, 52 
 
 Bowne v. Potter, 523 
 
 Bowne v. Wolcott, 278, 822 
 
 Boyce v. Grundy, 656, 658, 774 
 
 Boyce v. McCullogh, 549, 552 
 
 Boyd V. Bartlett, 288, 350 
 
 Boyd V. Hallowell, 691 
 
 Boyd V. McCullough, 637 
 
 Boyd V. Schlessinger, 182 
 
 Boyd V. Whitfield, 312 
 
 Boyer v. Amet, 195, 482, 645 
 
 Bover v. Porter, 787 
 
 Boykin v. Cook, 128 
 
 Boykin v. Eain, 67 
 
 Boyle V. Edwards, 409 
 
 Boyle V. Rowand. 766 
 
 Boyles v. Bee, 37 
 
 Boyman v. Gutch, 685 
 
 Brackenridge v. Dawson, 99, 1.50 
 
 Bradford v. Bradford, 531 
 
 Bradford v. Dawson, 71 
 
 Bradford v. Potts, 197, 635, 638 
 
 Bradley v. Chase, 251 
 
 Bradley v. Dibrell, 345, 643, 799 
 
 Bradley v. Dike, 290 
 
 Bradley v. Munton, 467 
 
 Bradshaw v. Atkins, 541, 542, 547 
 
 Bradshaw v. Crosby, 810 
 
 Bradshaw's Case, 274 
 
 Brady v. Spurck, 255, 258, 262, 348, 
 
 408 
 Braman v. Bingham, 309 
 
 Brandt v. Foster, 255, 257, 270, 352. 872, 
 
 373, 890, 448, 444, 617 
 Branger v. Manciet, 337 
 Branham v. San Jose, 138 
 Brannum v. Ellison, 591 
 Brantley v. Kee, 53 
 Brassfle'ld v. Walker, 706 
 Brashier v. Gratz, 751 
 Bratton v. Guy, 268 
 Breckenridge v. Hoke, 766 
 Breckenridge v. Waters, 618, 619 
 Bree v. Holbech, 616 
 Breithaupt v. Thurmond, 20, 275 
 Brereton v. Barrv, 187 
 Brett V. Marsh. 485 
 Brewer v. Herbert, 728 
 Brewer v. Parker, 423 
 Brewery. Wall, 474 
 Brewton v. Smith, 532 
 Brick V. Coster, 603, 635 
 Bricker v. Bricker. 285, 35<) 
 Bridge v. Wellington, 50 
 Bridge v. Young, 206 
 Briegel v. Moehler, 544 
 Briegel v. Muller, 530 
 Briggs V. Gillam, 188 
 Briggs V. Morse, 307 
 Brigham v. Evans, 213, 218 
 Bright V. Boyd, 139, 222 
 Brimmer v. Boston, 840 
 BrinckerhofE v. Phelps, 210, 226 
 Brisbane v. McCrady, i304 
 Britt V. Marks, 252 
 Brittain v. McLain, 573, 575 
 Brizzolara v. Mosher, 460 
 Broadway v Baxter, 326, 529 
 Broadwell v Phillips, 494 
 Brobst V. Brock, 187 
 Brock V. Hidy. 204 
 Brook V. O'Dell, 532, 815 
 Brock V Southwick, 449, 450 
 Brockenbrough v. Blythe, 766, 768 
 Brodie v. Watkins, 444 
 Brooke v. Clarke, 768 
 Brooklyn v. Brooklyn City R. Co. , 691 
 Brooklyn Park Com. v. Armstrong, 694, 
 
 736 
 Brookman v. Kvirzman, 722 
 Brooks V. Black, 382, 396, 400 
 Brooks V. Chaplin, 57 
 Brooks V. Moody, 288. 807. 810, 446, 784 
 Brooks V. Riding, 247, 811 
 Bronk v. McMahan, 722 
 Bronsou v. Coffin, 154, 286, 295, 314 
 Brown v. Allen, 842, 352 
 Brown v. Bark, 285 
 Brown V. Bellows, 41, 274, 734 
 Brown v. Brodhead, 807 
 Brown v. Brown, 187 
 Brown v. Cannon, 34. 701, 704, 705 
 Brown v. Christie, 180, 134 
 Brown v. Combs, 127 
 Brown v. Connell, 487 
 Brown v. Corson, 351 
 Brown v. Covilland, 88, 34 
 
TABLE OF CASKS. 
 
 Brown v. Dickinson, 354, S6~>, 373 
 
 Brown v. JSaton, 304 
 
 Brown v. Farrar, 69 
 
 Brown v. Feagin, 414 
 
 Brown v. Frost, 83 
 
 Brown v. Gammon, 35 
 
 Brown v. HafE, 689, 745, 753 
 
 Brown v. Harrison, 558 
 
 Brown v. Hearon, 393, 4!)5 
 
 Brown v. Herricli, 250 
 
 Brown v. Jackson, 519 
 
 Brown v. Lunt, 60 
 
 Brown v. Manning, 337 
 
 Brown v. Manter, 50, 501 , 503 
 
 Brown v, McCormick, 504 
 
 Brown v. McMulleu, 408 
 
 Brown v. Metz, 360 
 
 Brown v. Montgomery, 337, 603 
 
 Brown v. Moore, 58 
 
 Brown v. Morehead, 024, 637 
 
 Brown v. Reeves, 645 
 
 Brown v. Rice, 245 
 
 Brown v. Staple, 384, 363, 363, 368, 
 
 370, 495, 498 
 Brown v. Starke, 35 
 Brown v. Taylor, 345, 405, 407 
 Brown v. Wallace, 77, 553, 674, 733 
 Browning v. Canal Co., 359 
 Browning v. Clymer, 199 
 Browning v. Estes, 587 
 Browning, In re, 78, 134 
 Browning v. Wright, 147, 151, 337 
 Bro.yles v. Bell, 659 
 Bruce v. Luke, 516 
 Brumfield v. Palmer, 585, 661 
 Brumfit V. jMorton, 30 
 Brummel v. Hunt, 124 
 Bruner v. Jleigs, 658 
 Bruns v. Schreiber, 399, 816 
 Brush V. Jlarshall, 746 
 Brush T. Ware, 171 
 Bryan v. Bootlie, 284 
 Bryan v. Johnson, 449 
 Bryan v. Lewis, 457 
 Bryan v. Osborne, 194, 703 
 Bryan v. Ramirez, 63 
 Bryan v. Read, 716, 773, 776 
 Bryan v. Salyard, 486 
 Bryan v. Swain, 489 
 Bryant v. Booth, 246, 665, 800 
 Bryant v. Fairfield, 137 
 Bryant v. Hambrick, 213 
 Bryant, In re, 741, 754 
 Bryant v. Wilson, 150 
 Bryson v. Crawford, 555 
 Buchanan v. Alwell, 557, 608, 764 
 Buchanan v. Lorman, 202, 203, 559, 
 
 665, 666 
 Buck V. McCaughtry, 774 
 Back V. Waddle, 566 
 Buckels V. Mouzon, 403 
 Backhouse v, Crossby, 552 
 Buokleu V. Hasterlik, 69, 70, 305, 700 
 Buckles V. Northern Bank of ICy., 432 
 Buckley v. Da\vson, 211 
 
 Buckmaster v. Grundy, 14, 206, 213 
 
 Buckner v. Street, 281, 383, 330, 617 
 
 Buell V. Tate, 483, 437, 446, 603, 78» 
 
 Buford V. Guthrie, 607, 753 
 
 Bulkley v. Hope, 37 
 
 Bull V. Willard, 634 
 
 Bullard v. Perry, 69 
 
 Bullitt V. Songster, 574 
 
 Bullock V. Adams, 464 
 
 Bullock V. Beemis, 656 
 
 Bullock y. Whipp, 543, 545 
 
 Bulow V. Witte, 91 
 
 Bumberger v. Clippinger, 735 
 
 Bundy v, Ridenour, 307 
 
 Burbank v. Pillsbury, 395 
 
 Burchard v. Hubbard, 498 
 
 Burk V. Clements, 311, 386 
 
 Burk V. Hill, 298, 301 
 
 Burk V. Serrill, 313, 334, 838, 473 
 
 Burk's Appeal, 473 
 
 Burke v. Beveridge, 504, 510 
 
 Burke v. Da vies, 582 
 
 Burke v. Elliott, 99, 101, 103 
 
 Burke v. Gummey, 38 
 
 Burke v. Johnson, 486 
 
 Burke v. Nichols, 327 
 
 Burke v. Ryan, 726 
 
 Burkett v. Mumford, 606 
 
 Burks V, Davios, 557, 755, 756 
 
 Burley v. Shinn, 564 
 
 Buriock V. Peck, 397 
 
 Burnell v. Firth, 677 
 
 Burnett v. Hamill, 90 
 
 Burnett v. McCluey, 55 
 
 Burnett v. Wheeler, 30, 189 
 
 Burnham v. Laselle, 364 
 
 Burns v. Hamilton, 109, 110, 813 
 
 Burns v. Ledbetter, 128, 137 
 
 Burr V. Greely, 343 
 
 Burr y. Hutchinson, 543 
 
 Burr V. Lancaster, 297 
 
 Burr V. Todd, 230, 419 
 
 Burrill v. Jones, 156 
 
 Burroughs v. j\IcNeill, 491 
 
 Burroughs v. Oakley, 189, 190, 709 
 
 Burrow v. Scammel, 466, 467 
 
 Burrows- V. Locke, 235, 340 
 
 Burrows v. Stryker, 433 
 
 Burrows v. Yount, 305 
 
 Burruss v. Wilkinson, 355 
 
 Burston v. Jackson, 515 
 
 Burt V. Wilson, 581 
 
 Burtuers v. Keran, 494, 503 
 
 Burton v. Perry, 707 
 
 Burton v. Reed, 373, 394, 395, 507, 510 
 
 Burwell v. Brown, 30 
 
 Burwell v. Jackson, 20, 22, 36 241 243 
 
 343, 345, 350, 684, 800 
 Busby V. Treadwell. 197, 431, 784, 793 
 Bush V. Adams, 385 
 Bush v. Bush, 530, 544 
 Bush V. Cole, 336 
 Bush V. Collins, 486 
 Bush V. Cooper, 335, 460, 515 
 Bush V. Hicks, 538, 543 
 
TABLE OF CASES. 
 
 XXVU 
 
 Bustard v. Gates, 93 
 
 Butcher V. Petersou, 873, 390, 468, 811 
 
 Butcher v. Rogers, 513, 517 
 
 Butler V. Baruea, 360, 880, 396 
 
 Butler V. Gale, 299, 301 
 
 Butler V. Miller, 617, 618, 808 
 
 Butler V. O'Hoar, 736 
 
 Butler V. Seward, 153, 499 
 
 Butte V. Riffe, 298, 322, 359, 423, 639 
 
 Butterfield v. Heath, 681, 697 
 
 Butterworth v. Volkeaning, 338 
 
 Buttron v. Tibbitts, 142 
 
 Butts V. Andrews, 688, 724 
 
 Bumpass v. Plainer, 425, 453, 606, 793 
 
 Byers v. Aiken, 199, 306 
 
 Bynes v. Rich, 363, 370, 371 
 
 Bynum v. Govan, 138 
 
 C. 
 
 Cabell V. Grubbs, 63 
 
 Cadiz V. Majors, 517 
 
 Cadmus v. Fagan, 288, 393 
 
 Cadwalader v. Tryon, 150 
 
 Cady V. Gale, 468 
 
 Cain V. Guthrie. 661 
 
 Cain V. Woodward 129 
 
 Cake V. Peet, 538 
 
 Calcraft v. Roebuck, 184, 188, 769 
 
 Calder v. Chapman, 504 
 
 Calder v. Jenkins, 720, 731 
 
 Caldwell v. Bower, 355 
 
 Caldwell v. Kirkpatrick, 323, 341 
 
 Calhoun v. Belden, 663, 693 
 
 Calkins v. Williams, 483 
 
 Calton V. Lewis. 809 
 
 Calumet, etc.. Canal Co. v. Russell, 70 
 
 Calvert v. Sebright, 410 
 
 Cameron v. Logan, 123 
 
 Camfleld v. Gilbert, 13, 14, 219, 563, 
 
 677, 685, 691 
 Camp V. Morse, 207, 565, 579, 583, 755 
 Camp V. Pulver, 648 
 Campbell v. Brown, 113, 115 
 Campbell v. Carter, 810 
 Campbell v. Fleming, 186, 193 
 Campbell v. Johnson, 531 
 Campbell v. McCahan, 80 
 Campbell v. McClure, 567 
 Campbell v. Lowe, 131, 137 
 Campbell v. Medbury, 426 
 Campbell v. Shields, 339 
 Campbell v. Shrum, 38, 570 
 Campbell v. Whittingham, 235, 244, 345, 
 
 350 
 Candler v. Lunsford, 515 
 Canedy v. Marcy, 533, 534, 540 
 Canton Co. v. B. & 0. R. Co., 190, 194 
 Cantrell v. Mobb, 564, 596, 796 
 Capehart v. Dowery, 78, 90 
 Capital Bank v. Huntoon, 130, 131 
 Carbrey v, Willis, 395 
 Carey v. Daniels, 396 
 Carey v. Guillow, 435 
 Carlisle v. Carlisle, 68 
 
 Carnahan v. Hall, 634 
 
 Carne v. Mitchell, 492 
 
 Carney v. Newberry, 549, 582 
 
 Carpenter v. Bailey, 35 
 
 Carpenter v. Brown, 163, 207, 745 
 
 Carpenter v. Holcomb, 19 
 
 Carpenter v. Lockhart, 202, 230 
 
 Carpenter v. Schemerhorn, 514 
 
 Carpenter v. Stilwell, 130 
 
 Carpenter v. Strother, 83 
 
 Carpenter v. Thompson, 498 
 
 Carper v. Hunger, 547 
 
 Carr v. Callaghan, 237 
 
 Carr v. Dooley, 288, 289 
 
 Carr v. Roach, 163, 628 
 
 Cai'rico v. Proman, 576 
 
 Carrodus v. Sharp, 766 
 
 Carson v. Kelly, 450 
 
 Carter v. Beck, 15, 445 
 
 Carter v. Carter, 453 
 
 Carter v. Chandron. 71 
 
 Carter v. Denman, 262, 294, 360' 
 
 Cartwright v. Briggs, 422, 790 
 
 Cartwright v. Culver, 602 
 
 Carver v. Howard, 137 
 
 Carver v. Jackson, 513 
 
 Carver v. La Salette, 544 
 
 Carvill v. Jacks, 333, 376 
 
 Cary v. Gundlefinger, 567 
 
 Case V. Boughton, 649 
 
 Case V. Wolcott, 211 
 
 Casey v. Lucas, 423, 607 
 
 Cashon v. Paina, 77 
 
 Cass Co. V. Oldham, 546 
 
 Cassell V. Cooke, 725, 735, 751 
 
 Cassidy's Succession, 378 
 
 Castleberg v. Maynard, 737 
 
 Caswell V. Black River Mtg. Co., 188, 
 
 190, 193 
 Caswell V, Wendell, 370 
 Cater v. Pembroke, 343 
 Cathcart v. Bowman, 287, 293, 303 
 Catlicart v. Sugenheimer, 138 
 Catlin v. Hurlburt, 254, 265, 370 
 Cattell v. Corrall, 31, 677, 681 
 Causton v. Maoklew, 681, 700 
 Caulkins v. Harris, 393, 394 
 Cavanaugh v. Casselman, 430 
 Cavauaugh v. McLaughlin, 731 
 Ceconni v. Rodden, 346 
 Chabot V. Winter Park Res. Co., 463 
 Chace v. Hinman, 380 
 Chamberlain v. Amter, 566 
 Chamberlain v. Lee, 7.50, 754 
 Chamberlain v. Meeder, 498, 515 
 Chamberlain v. McClung, 497 
 Chamberlain v. Preble, 404, 405 
 Chambers v. Cochran, 133, 135 
 Chambers v. Cox, 433 
 Chambers v. Jones, 139 
 Chambers v. Pleak, 355 
 Chambers v. Smith, 268 
 Chambers v. Tulane, 660, 725, 726, 738 
 Champion v. Brown, 458 
 Champlin v. Dotson, 481, 789 
 
xxviii 
 
 rABLE OF CASES. 
 
 Champlin v. Layton, 346, 815 
 
 Champlin v. Williams, 4S7 
 
 Chandler v. Brown, 350 
 
 Chandler v. Spear. 61 
 
 Chapel V. Bull, 311 
 
 Chaplain v. Southgate, 339 
 
 Chaplin v. Briscoe, 427 
 
 Chapman v. Brooklyn, 133 
 
 Chapman v. Eddy, 578 
 
 Chapman v. Holmes, 363, 330, 409 
 
 •Chapman v, Kimball, 363, 386 
 
 Chapman v. Lee, 163, 165, 306, 700, 703 
 
 Charles v. Dana, 559 
 
 Charleston v. Blohme, 78, 84, 87, 738 
 
 Chartier v. Marshall, 339, 457 
 
 Chase v. Chase, 719 
 
 Chase v.- Palmer, 44 
 
 Chase v. Peck, 594 
 
 Chase v. Weston. 363 
 
 Chastain v. Stalcv, 151 
 
 Chatfleld v. Williams, 579 
 
 Chauvin v, Wagner, 65, 364, 368, 418, 
 
 495, 513 
 Cheesman v. Thorne, 699, 769 
 Cheever v, jMinton, 90 
 Cheney v. Straube, 343, 353, 411 
 Cherry v. Davis, 584, 587, 703 
 Chesman v. Cummings, 688 
 Chester v. Rumsey, 70 
 Chesterfield v. .Jansen, 186 
 Chicago V. Rollins, 406 
 Chicago, Ivans. i& Neb, R. Co. v. Cook, 
 
 11'6 
 Childs V. Alexander, 453, 454 
 Childs V. jMcCliesney, 514 
 Chinn v. Heale, 464, 468 
 Chitwood V. Russell, 328 
 Chouteau v. Allen, 63 
 Chrisman v. Partee, 754, 755 
 Christian v. Cabell, 36. 188, 734, 753, 
 
 755 
 Christian v. Stanley, 773 
 Christman v. Colbert, 530, 547 
 Christy v. Ogle, 355, 358, 394, 314, 398 
 Cliristy v. Reynolds, 640 
 Church V. Brown. 147 
 Church V. Shunklin, 691 
 C^hurchill v. Moore, 67 
 Citizens' Bank v. Preitag, 122, 134 
 Clagett V, Crall, 345 
 Clanton v. Burges, 435, 614 
 Clapp V. Herdmann, 355, 374, 385 
 Clare v. Lamb, 630 
 Clare v. Mavnard, 211 
 Clark V. Baird, 14, 234 
 Clark V. Baker, 498, 531 
 Clark V. Briggs, 661, 662 
 Clark V. Clark, 485 
 Clark V. Croft, 559 
 Clark V. Conroe, 357, 345 
 Clark V. Drake, 543 
 Clark V. Faux. 38, 386, 393, 387 
 Clark V. Hardgrove, 438, 468, 794 
 Clark V. Harper, 345 
 Clark V. Jacobs, 595 
 
 Clark V. Johnson, 363 
 
 C'ark V. Lockwood, 137 
 
 Clark T. Lyons, 148 
 
 Clark V. Mumford, 408, 451 
 
 Clark V. Parr, 373 
 
 Clark V. Perry, 307 
 
 Clark V. Post, 134, 635 
 
 Clark V. Redman. 34, 47, 145, 148, 731 
 
 Clark V. Seirer, 473 
 
 Clark V. Snelling, 433 
 
 Clark V. Swift, 367 
 
 Clark V. Weiss, 301,-573 
 
 Clark V. Whitehead, 156, 350, 380, 433 
 
 Clark V. Zeigler, 393 
 
 Clarke v. Cleghorn, 784 
 
 Clarke v. Elliott, 463 
 
 Clarke v. Locke, 15, 308, 314, 586, 663 
 
 Clarke v. McAnulty. 341, 343, 349, 383 
 
 Clarke v. Scudder, 369 
 
 Clarke v. Wilson, 133 
 
 Clarkson v, Skidmore, 387 
 
 Clason V. Bailey, 44 
 
 Claxton V. Gilben. 368 
 
 Cla}'Comb v. Munger, 354, 403 
 
 Claypoole v. Houston, 530 
 
 Clee V. Seaman. 534 
 
 Clegg V. Lemessurier, 55 
 
 Clemens v. Loggins, 74, 199, 300. 580, 
 
 584, 741 
 Clement v. Bank, 357, 339, 364 
 Clement v. Burtis, 731 
 Clement v. Collins, 850. 403, 410 
 Cleveland v. Flang, 500 
 CUck V. Green, 3l3, 334, 373 
 Clinch River Co. v. Kurth, 58, 66 
 Cline V. Catron, 91 
 Clive V. Beaumont, 33 
 Clopton V. Bolton, 580 
 Clore V. Graham, 387 
 Close V, Stuyvesant, 683 
 Close V. Zell, 634, 636, 640 
 Clowes V. Higginson, 33 
 Clute V, Robinson, 35 
 Coal Creek Mining Co. v. Ross, 517 
 Cobb V. Hatfield, 14 
 Coble V. Wellborn, 357 
 Coburn v, Haley. 593, 695 
 Coburn v. Litchfield, 393, 309 
 Cochran v. Guild, 388, 389, 391 
 Cochran v. Pascault, 416, 417, 510 
 Cocke V. Taylor, 314 
 Cockey v. Cole, 90, 93 
 Cockrell v. Proctor, 373, 274 
 Cockroft V. Railroad Co. , 313, 319 
 Codman v. Jenkins, 443 
 Codrington v. Denham, 339 
 Coe V. Harahan, 153 
 Coe V. N. J. Mid. R. Co., 538, 534 
 Coe V. Persons Unknown, 519 
 Cofeeo V. Newsom, 593, 617, 770, 776 
 Coffin V. Cook, 116 
 Coffman v. Huck, 393 
 Coffmau V. Sooville, 791 
 Cogan v. Cook, 35 
 Cogel v. Raph, 169, 179, 181 
 
TABLE OF CASES. 
 
 XXIX 
 
 Cogswell V. Boehm, 186, 770 
 
 Cogwell V. Lyons, 221 
 
 Cohen v. Woolard, 435, 608 
 
 Coit V. McReynolds, 257, 259, 260 
 
 Colbert v. Moore, 109, 111 
 
 Colby V. Osgood, 336, 418 
 
 Colcord V. Leddy, 755 
 
 Colcord V. Swan, 514 
 
 Cole V. Gibbons, 186 
 
 Cole V. Hawes, 328 
 
 Cole V. Hughes, 297 
 
 Cole V. Johnson, 138 
 
 Cole V. Justice, 421, 433, 485 
 
 Cole V. Kimball, 364, 304, 309 
 
 Cole V. Lee, 322, 356 
 
 Cole V. Raymond, 513 
 
 Coleman v. Coleman, 529 
 
 Coleman v. Floyd, 594 
 
 Coleman v. Hart, 625 
 
 Coleman v. Lyman, 264 
 
 Coleman v. Rowe, 424, 572, 580 
 
 Coleman v. Sanderlin, 573 
 
 Collier v. Cowger, 313, 344, 355, 398. 404 
 
 Collier v. Gamble, 264, 267, 272, 610 
 
 CoUingwood v. Irwin, 382, 384, 407, 408, 
 
 409 
 Collins V. Baker, 406 
 Collins V. Clayton, 794 
 Collins V. Delashmutt, 35 
 Collins V. Miller, 128 
 Collins V. Smith, 468, 682 
 Collins V. Thayer, 566, 588 
 Collis V. Cogbill, 348, 406 
 Collver V. Clay, 477 
 Coltbn V. Seaw, 63 
 Colton V. Wilson, 188, 681 
 Colver V. Clay, 470 
 Colvin V. Schell, 399, 628 
 Colwell V. Hamilton, 35, 559 
 Colyer v. Thompson, 193, 662, 803 
 Combs V. Scott, 313, 217 
 Combs V. Tarlton, 313, 331 
 Comegys v. Davidson, 445 
 Comer v. Walker, 767 
 Comings v. Little, 392, 308, 309, 334 
 Commercial Bank v. Martin, 93 
 Commonwealth v. Andre, 158, 515 
 Commonwealth v. Dickinson, 136 
 Commonwealth v. McClanachan, 617 
 Commonwealth v, Pejepscut, 158, 515 
 Compton V. Nuttle, 458 
 Comstock V. Ames, 335 
 Comstock V. Crawford, 116 
 Comstock V. Smith, 499, 516, 517 
 Comstock V. Son, 325, 806 
 Conaway v. Gore, 538, 543 
 Concord Bank v. Gregg, 151, 335, 588, 
 
 650 
 Conger v. Weaver, 313 
 Conger v. Mericles, 542 
 Congregation v. Miles, 585, 634, 663 
 Conley v. Doyle, 15 
 Conley v. Dipper, 740 
 Connell v. McLean, 312, 315, 316 
 Connelly v, Peirce, 163, 207 
 
 Connelly v. Phila, 129 
 
 Connor v. Eddy, 424, 498 
 
 Connor v. MoMurray, 500 
 
 Connor v. Wells, 539 
 
 Conrad v. Trustees, 374, 376 
 
 Contee v. Lyons, 95, 96, 171, 725 
 
 Converse v. Blumrich, 550 
 
 Conway v. Case, 34 
 
 Conwell v. Clifford, 248 
 
 Coogan V. Ockershausen, 737 
 
 Cook V. Bean, 743 
 
 Cook V. Curtis, 383, 409 
 
 Cook V. Fuson, 317 
 
 Cook V. Jackson, 449 
 
 Cook V. Mix, 439, 440 
 
 Cooke V. Husband, 543 
 
 Cooley V. Rankin, 434, 607, 614 
 
 Coombs V. Lane, 111 
 
 Coons V. North, 134 
 
 Cooper V. Bloodgood, 340, 425 
 
 Cooper V. Devine, 695, 763, 764 
 
 Cooper V. Emery, 161 
 
 Cooper V. Cranberry, 363 
 
 Cooper, In re, 407 
 
 Cooper V. Phibbs, 807, 818 
 
 Cooper V. Reynolds, 94, 95 
 
 Cooper V. Singleton, 449, 571, 689 
 
 Cooper V. Sunderland, 103 
 
 Cooper V. Watson, 404 
 
 Cope V. Williams, 584, 598 
 
 Copeland v. Copeland, 884 
 
 Copeland v. Laun, 583 
 
 Copper V. Wells, 466 
 
 Coray v. Matthewson, 189, 690 
 
 Corbally v. Hughes, 481 
 
 Corbett v. Dawkins. 109, 616 
 
 Corbett v. Norcross, 55 
 
 Corbett v. Nutt, 735 
 
 Corcoran v. White, 461, 477 
 
 Core V. Strickler, 79 
 
 Core V. Wigner, 700, 764 
 
 Cornell v. Andrews, 670, 688, 724 
 
 Cornell v. Jackson, 263. 338, 389, 510 
 
 Cornish v. Capron, 327 
 
 Cornwall v. Williams, 457 
 
 Cornwell v. Clifford, 422 
 
 Corrall v. Cattell, 763 
 
 Corson v. Mulvany, 473 
 
 Corns' Case, 338 
 
 Corwin v. Benham, 77, 118 
 
 Corwith V. Grifflng, 97 
 
 Coster V. Monroe Mfg. Co., 153, 321, 
 
 783, 784 
 Costigan v. Hastier, 458 
 Costigan v, Hawkins, 805 
 Cotes V. Raleigh, 774 
 Cotton v. Ward, 510, 733, 758 
 Cottrell V. Cottrell, 154 
 Cottrell V. Watkins. 700 
 Coudert v. Sayre, 395 
 Coughenour v. Swift, 635 
 Coulson V. Wing, 116 
 Courtright v. Courtright, 534 
 Covell V. Cole, 468 
 Coverly v. Burrell, 30 
 
XXX 
 
 TABLE OF CASES. 
 
 Cowdrey v, Coit, 355 
 
 Cowdrey v. Cuthbert, 481 
 
 ■Cowen V. Witbrow, 130 
 
 Cowley V. Watts, 21 
 
 Cox V. Coventon, 728 
 
 •Cox V. Cox, 91, 700, 712 
 
 Cox V. Davis, 88 
 
 Cox V. Henry, 213, 229, 373, 385, 393, 
 
 399, 429, 627, 640 
 Cox V. Middleton, 21 
 Cox V. Strode, 212, 270, 373, 376, 408 
 Coyne v. Soutber, 119 
 Crabtree v. Levings, 47, 154 
 Craddook v. Sbirley, 188, 194, 748 
 •Craft V. Merrill, 130 
 Craig V. Donovan, 268 
 Craig V. Heis, 288, 425 
 Craig V. Lewis, 296, 532 
 Craig V. Martin, 751 
 Cramer v. Benton, 516 
 Crane v. Collenbaugh, 352 
 Crawford v. Kebler, 243, 560, 736 
 Crawford v. Murpby, 614, 635 
 Crawford v. Pendleton, 345 
 Crawley v. Timberlake, 689 
 Crayton v. Hunger, 112 
 Creigb v. Boggs, 769 
 'Creighton v. Priugle, 538 
 Crensbaw v. Smitb, 390 
 Creps V. Baird, 118 
 Crippen v. Baumes, 541 
 Cripps V. Read, 152, 616 
 ■Orisfleld v. Storr, 335, 360, 382, 396, 400, 
 
 401, 412, 413 
 Critchett v. Cooper, 35, 204 
 Critcbfield v. Kline, 530 
 Crittenden v. Craig, 234 
 Crittenden v. Posey, 214, 394 
 Crockett v. Crockett, 547 
 Cronister v. Cronister, 640 
 Cronk v. Trumble, 199 
 Crooker v Jewell, 363, 363 
 Crop V. Norton, 457 
 Crosby v. Thedford, 714 
 Crosier v. Acer, 809 
 Cross v. Devine, 333 
 Cross V. Martin. 510 
 Cross V. Noble, 393, 619, 633, 634 
 Cross V. Robinson, 367, 498 
 Cross V. Zane, 140 
 Crosse v. Young, 338 
 Crotzer v. Russell, 624 
 Crouter v. Crouter, 713 
 Crowder, Ex parte, 153 
 Crowe V. Ballard, 187 
 Crowell V. Packard, 617 
 Croxall V. Sherrard, 700 
 Crum V. Cotting, 364 
 Crum V. Loud, 532 
 Crutcher v. Stump, 343 
 Crutchfield v. Danilly, 337, 343 
 Culbertson v. Blanohard, 593, 801 
 Culler v. Motzer, 635 
 CuUum V. Br. Bank, 241, 243, 421, 651, 
 
 789 
 
 Culver V. Avery, 13, 639, 654 
 Cumming's Appeal, 131, 126 
 Cummings v. Freer, 546 
 Cummings v. Harrison, 407 
 Cummings v. Holt, 337 
 Cummins v. Boyle, 431, 671, 785 
 Cummins v. Kennedy, 346, 363, 373, 377 
 Cunningham v. Anderson, 115 
 Cunningham v. Blake, 724 
 Cunningham v. Buck, 139 
 Cunningham v. Depew, 458, 465 
 Cunningham v. Fithian, 193 
 Cunningham v. Gwinn, 559 
 Cunningham v. Knight, 360 
 Cunningham v. Sharp, 35, 696, 703, 738, 
 
 774 
 Curd V. Davis, 435 
 Curling v. Flight, 765 
 Curling v. Shuttleworth, 675 
 Currie v. Cowles, 464 
 Currie v. Nind, 697 
 Curtis V. Deering, 345, 411 
 Curtis V. Gooding, 138 
 Cushman v. Blanohard, 398 
 Cuthbertson v. Irving, 369 
 Cutter V. Waddingham, 524 
 Cutts V. Thodey, 186 
 
 D. 
 
 Daggett V. Reas, 270, 343 
 
 Dahl V. Pross, 480 
 
 Dail V. Moore, 58, 61 
 
 Daily v. Litchfield, 670 
 
 Dalby v. Pullen, 753 
 
 Dale V. Sbively, 355, 270, 385, 899, 400 
 
 Dale V. Sollett, 566 
 
 Dalton V. Bowker, 373, 406, 408 
 
 Daly V. Bernstein, 569, 570 
 
 Dalzell V. Crawford, 677, 713 
 
 Damm v. Moors, 543 
 
 Dana v. Goodfellow, 280 
 
 Dane v. Derber, 530, 536 
 
 Danforth v. Smith, 272, 378 
 
 Daniel v. Baxter, 561 
 
 Daniel v. HoUingshed, 179 
 
 Daniel v. Leitch, 78, 80, 92 
 
 Daniel v. Smythe, 734 
 
 Daniels v. Newton, 19 
 
 Danly v. Rector, 118 
 
 Darlington v. Hamilton, 39, 781 
 
 Darrow v. Horton, 753 
 
 Dart V. Barbour, 544 
 
 Dart V. Dart, 517 
 
 Dart V. McQuilty, 470 
 
 Darvin v. Hillfleld, 82 
 
 Daughtry v. Knolle, 326, 811 
 
 Davar v. Caldwell, 722 
 
 Davenport v. Bartlett, 348, 854, 357 
 
 Davenport v. Scovil, 542 
 
 Davenport v. Whisler, 643 
 
 Davidson v. Cox, 262, 368 
 
 Davidson v. Keep, 551 
 
 Davidson v. Moss. 335, 800 
 
 Davidson v. Van Pelt, 36 
 
TABLE OF CASES. 
 
 XXXI 
 
 Davies v. Hughes, 109 
 
 Davis V. Bean,' 446 
 
 Davis V. Beasley, 58 
 
 Davis V. Evans, 193 
 
 Davis V. Gaines, 137 
 
 Davis V. Heard, 25), 251, 594, 658, 803 
 
 Davis V. Henderson, 36, 148 
 
 Davis V. Hunt, 121 
 
 Davis V. Lewis, 225 
 
 Davis V. Logan, 344, 787 
 
 Davis V. Lyman, 255, 258, 262, 309, 327 
 
 Davis V. Murray, 126, 454 
 
 Davis V. Parlter, 472 
 
 Davis V. Rogers, 543, 546 
 
 Davis V. Shields, 44 
 
 Davis V. Smith, 337, 350, 373, 406 
 
 Davis V. Symonds, 552 
 
 Davis V. Tollemache, 417, 490 
 
 Davis V. Wilbourne, 402, 408 
 
 Davison v. De Freest, 437 
 
 Davison v. Perrine, 663 
 
 Dawes v. Betts, 30 
 
 Dawson v. Shirley, 145 
 
 Day V. Browne, 155 
 
 Day V. Burnham, 149 
 
 Day v.. Chism, 346, 413 
 
 Day V. Nason, 219 
 
 Dayton v. Citizens' Nat. Bank, 546 
 
 Dayton v. Dusenberry, 789, 791 
 
 Dayton v. Melick, 438 
 
 Deal V. Dodge, 422, 439, 604, 613, 661 
 
 Dearth v. Williamson, 35 
 
 Dean v. Morris, 123 
 
 De Chaumont v. Forsyth, 363 
 
 Deck's Appeal, 293 
 
 Decker v. Schulze, 240, 799 
 
 De Courcey v. Barr, 59 
 
 Deery v. Cray, 65 
 
 De Forest v. Leete, 313, 817 
 De Haven's Appeal, 77 
 Deichman v. Deichman, 204 
 De Jaruatt v. Cooper, 536, 545 
 De Kay v. Bliss, 438 
 . Delafleld v. James, 691 
 Delavan v. Duncan, 202 
 Delavergne v. Norris, 307, 309, 446 
 Demarest v. Hopper, 517 
 Demarett v. Bennett, 449, 793 
 Demmy's App., 116 
 Den V. Demarest, 514 
 Den V. Geiger, 67, 258 
 Den V. Hamilton, 71 
 Den V. Young, 121 
 Denn v. Connell, 518 
 Denne v. Light, 31 
 Denning v. Cresson, 253 
 Dennis v. Heath, 349, 350, 355, 434, 441 
 Dennis v. Strasburger, 199, 741, 743, 744 
 Dennison v. Ely, 53 
 Denny v. Wicklifife, 660, 689, 787 
 DePeyster v. Murphy, 389, 391 
 Denson v. Love, 354, 443 
 Denston v. Morris, 251, 741 
 Dentler v. Brown, 485, 487, 635 
 Dentler v. O'Brien, 756 
 
 Derr v. Wilson, 93 
 
 De Saussuer v. Bollman, 719 
 
 Desverges v. Willis, 298, 783 
 
 Detroit R. Co. v. Griggs, 789 
 
 Deverell v. Bolton, 134, 186, 187 
 
 Devin v. Ilendershott, 367 
 
 Devin v. Ilimer, 318 
 
 Devine v. Lewis, 383 
 
 Devine v. Rawle, 288 
 
 Devling v. Little, 39 
 
 Devore v. Sunderland, 264, 368 
 
 Devour v. Johnson. 408 
 
 Dewey v. Campau, 64, 65 
 
 DeWolf V. Hayden, 512 
 
 DeWolf V. Mallet, 123 
 
 Dexter v. Manly, 331, 411, 413, 415 
 
 Dial V. Crain, 552 
 
 Dickinson v. Colegrove, 700 
 
 Dickerson v. Davis, 70 
 
 Dicldns v. Shepherd, 373, 390 
 
 Dickinson v. Dickinson, 738 
 
 Dickinson v. Glenney, 537, 546, 547 
 
 Dickinson v. Hoomes, 146, 148, 151, 
 304, 337, 361, 369 
 
 Dickinson v. Talbot, 494, 511 
 
 Dickinson v. Voorhees, 326, 635 
 
 Dickson V. Desire, 264, 368, 383 
 
 Diggle V. Boulden, 745 
 
 Diggs V. Kirby, 232, 647, 651 
 
 Dikeman v, Arnold, 731 
 
 Dill V. Noble, 692 
 
 Dillahunty v. R. Co., 352, 385, 386 
 
 Dill V. Wineham, 622 
 
 DilUngham v. Estill, 430 
 
 Dimmick v. Lockwood, 312, 313, 378 
 
 Disbrow v. Folger, 717, 737, 738 
 
 Disbrow v. Harris, 430 
 
 Dix V. School Dist., 426 
 
 Dixou V. Astley, 188 
 
 Dixon V. Rice, 473 
 
 Dixon V. Robbins, 62 
 
 Doan V. Mauzy, 464 
 
 Doane v. Willcutt, 511, 514, 518 
 
 Dobbins v. Brown, 323, 340, 341 
 
 Dobbs V. Norcross, 696 
 
 Doctor V. Hellberg, 470 
 
 Dod V. Paul, 528 
 
 Dodd V. Nelson, 128 
 
 Dodd V. Seymour, 34, 150, 155 
 
 Dodd V. Templeman, 106 
 
 Dodd V. Toner, 444 
 
 Dodd V. Williams, 504 
 
 Dodson V. Cooper, 486 
 
 Doe V. Anderson. 100 
 
 Doe V. Dowdall, 506 
 
 Doe V. Oliver, 504 
 
 Doe V, Quinlan. 493 
 
 Doe V. Smith, 130 
 
 Doe V. Stanion, 20, 28 
 
 Doebler's Appeal, 687, 733 
 
 Doggett V. Emerson, 665 
 
 Doherty v. Dolan, 12, 213 
 
 Dominick v. Michael, 514, 764 
 
 Donaldson v. Waters, 584 
 
 Donlon v. Evans, 30, 378 
 
XXXll 
 
 TABLE OF CASES. 
 
 Donnell v. Thompson, 273, 294, 315, 
 
 324, 385 
 Donner v. Redenbaugh, 228 
 Donohoe v. Emery, 156, 334 
 Donovan v. Frisker, 662 
 Doom V. Curran, 373, 401 
 Doremus v. Bond, 438 
 Dorincourt v. La Croix, 213 
 Dorr V. Steichen, 543 
 Dorsey v. Dashiell, 280 
 Dorsey v. Gassaway, 515 
 Dorsey v. Hobbs, 559 
 Dorsey v. Jackman, 635, 689 
 Dorsey v. Kendall, 100 
 Doswell V. Buchanan, 504, 506 
 Dotson V. Bailey, 551, 666 
 Dougald V. Dougherty, 495 
 Dougherty v. Duval, 361, 383 
 Doughty V. Cottraux, 449 
 Douglas V. Lewi, 330 
 Douglas V. Scott, 502 
 Doupe V. Genin, 889 
 Dow V. Lewis, 154, 157 
 Dowdney v. Mayor, 291 
 Dowdy V. McArthur, 171 
 Downer v. Fox, 487 
 Downer v. Smith, 255, 257, 309, 391 
 Dowson v. Solomon, 187, 190, 768 
 Doyle v. Hord, 326, 343, 810 
 Drake v. Baker, 212, 315, 216, 237, 
 
 373 
 Drake v. Barton, 20, 145 
 Drake v. Cockroft, 339 
 Drake v. ColUns, 478 
 Drake v. Shiels, 33 
 Drennere v, Boyer, 199,. 580 
 Dresbach v. Stein, 76, 78 
 Dresel v. Jordan, 78, 723, 741, 754 
 Drew V. Clark, 815, 819 
 Drew V. Corporation, 736 
 Drew V. Pedlar, 203 
 Drew V. Smith, 480 
 Drew V. Towle, 348, 373, 435, 444 
 Driggiu V. Cassaday, 98, 100 
 Driggs V. Dwight, 210 
 Drinker v, Byers, 637, 640 
 Driver v. Spence, 137 
 Droge V. Cree, 686, 736 
 Drury's Case, 127 
 Drury v. Connor, 468 
 Drury v. Imp. Co., 283 
 Drury v. Shumway, 350, 879 
 Drysdale v. Mace, 28 
 Dubois V. James. 747 
 Dutchess of Kingston's Case, 498 
 Dudley v. Bryan, 574 
 Dudley v. Cadwell, 502 
 Dudley v. Folliott, 337 
 Duffleld V. Wilson, 557 
 Duffield V. Scott, 397 
 Duflef V. Boykin, 37, 559 
 Dufour V. Camfranc, 186 
 Duke V. Barnett, 28, 29 
 Dutch Land Co. v. Klovdahl, 743 
 Dumars v. Miller, 212, 215 
 
 Dunghee v. Geoghegan, 214 
 
 Dunbar v. Tredennick, 187 
 
 Duncan v. Blair, 281 
 
 Duncan v. Cafe, 187, 189 
 
 Duncan v. Charles, 205 
 
 Duncan v. Gainey, 137, 139 
 
 Duncan v. Jeter, 593, 661, 663 
 
 Duncan v. Lane, 424 
 
 Duncanson v. Manson, 99 
 
 Duncan v. McCullough, 497 
 
 Duncan v. Tanner, 230 
 
 Dundas v. Hitchcock, 67 
 
 Dundy v. Chambers. 59 
 
 Dunham v. New Britain, 539 
 
 Dunkleberger v. Whitehill, 356 
 
 Dunklee v. Wilton R, Co., 303 
 
 Dunlap V. Dougherty, 57 
 
 Dunlap V. Hepburn, 659 
 
 Dunn V. Frazier, 122, 140 
 
 Dunn V. Huether, 731 
 
 Dunn V. White, 287, 431, 433 
 
 Dunnica v. Sharp, 313, 231, 373 
 
 Dunning v, Leavitt, 425 , 439 
 
 Dupre V. Thompson, 532, 546 
 
 Dupuy V. Roebuck, 348 
 
 Durand v. Williams, 262 
 
 Durham v. Hadley, 20, 740, 745 
 
 Durrett v. Piper, 294 
 
 Dussaume v. Burnett, 58 
 
 Dustin V. Newcomer, 21] 
 
 Dutch V. Warren, 566 
 
 Dutton V. Gerish, 281 
 
 Dutch Church v. Mott, 714, 746, 752 
 
 D'Autricht v. Melchoir, 646, 808 
 
 Duval V. Craig, 156, 280, 316. 337, 345 
 
 Duvall V. Parker, 675, 703, 705 
 
 Dwight V. Cutler, 20, 35, 145, 148, 150, 
 
 374, 564, 670, 709 
 Dwight's Case, 136 
 Dwinel v. Veazie, 158 
 Dye v. Montague, 206, 307 
 Dyer v. Britton, 355 
 Dyer v. Dorsey, 228, 280 
 Dyer v. Ladomus, 288 
 Dyer v. Wightman, 840 
 Dyett V. Pendleton, 338 
 
 E. 
 Eads V. Murphy, 433, 584 
 Eames v. Der Germania Turn Verein. 
 
 184, 664 
 Eames v. Savage, 15 
 Earl V. Campbell, 559, 695, 734 
 Earle v. Bickford, 632 
 Earle v. De Witt, 616, 634, 648 645 
 Earle v. Middleton, 880 395 
 Early v. Garrett, 237, 652 
 East Tenn. Nat. Bank v. First N Bank 
 
 416, 490, 650 
 Easter v. Severin, 582, 538 
 Easton v. Montgomery, 30, 163 166 
 
 562,743, 748:758 
 Eaton V. Chesebrough, 289 
 Eaton V. Eaton, 546 
 
TABLE OF CASES. 
 
 XXXIU 
 
 Eaton V. Lyman, 364, 374, 307, 308, 312, 
 
 406 
 Eaton V. Tallmadge, 436 
 Eby V. Eby, 34, 35 
 Eby V. Elder, 638, 639 
 Ebling V. Dwyev, 716 
 Eccles V. Timmons, 86 
 Edde V. Covfan, 141 
 Eddleman v. Carpenter, 495 
 Eddy V. Chace, 303 
 Eden v. Blake, 32 
 Edgerton v. Page, 339 
 Edmonds v. Cocnran, 202 
 EdriDgton v. Nix, 309, 434, 607 
 Edwards v. Bodiue, 435, 436, 784 
 Edwards v. Clark, 381, 387, 393 
 Edwards v. Davenport, 498, 514 
 Edwards v. McLeay, 333, 337, 388, 647, 
 
 651 
 Edwards v. Morris, 435, 700, 701 
 Edwards v. Roys, 358 
 Edwards v. 'Van Bibber, 191, 697 
 Edwards v. Varick, 516 
 Edwards v. Wiokwar, 38 
 Eggers V. Busoh, 673, 757 
 Ela V. Card, 370, 389 
 Elam V. Donald, 14 
 Elder v. True, 379 
 Elfenheim v Von Hafen, 14, 564 
 Elkin V. Timlin, 628 
 Elliot V. Boaz, 593, 596, 663 
 Elliot V. Piersol, 73, 98 
 Elliot V. Sanfley, 402 
 Elliott V. Blair, 753 
 Elliott V. Osborn, 61 
 Elliott V. Saokett, 537 
 Elliott V. Thompson, 373, 385, 426 
 Ellis V. Anderton, 37, 86, 565, 570 
 Ellis V. Ellis, 138 
 Ellis V. Hoskins, 580 
 Ellis V. Welch, 337. 340, 341 
 Else V. Kennedy, 546 
 Ely V. Hergesell, 362, 368 
 Emerson v. Hiles, 773 
 Emerson v. Minot, 341 
 Emerson v. Samson, 495 
 Emerson v. Wash. Co., 616 
 Emerson v. Roof, 749 
 Emery v. Grocock, 579, 681, 700 
 Emery v. Pickering, 765 
 Emmons v. Moore, 337 
 Eagel V. Fitch, 209, 311, 313, 338 
 England v. Clark, 113, 118, 122 
 England v. Garner, 90, 97, 107 
 Englander v. Rogers, 301, 744 
 English V. Benedict, 234, 800 
 English V. Thompson, 607, 793 
 Eanis v. Leach, 153 
 Ericksou v. Bennett, 233, 323, 234 
 Ernst V. Parsons, 367, 305 
 Erwin v. Myers, 468, 668 
 Estabrook v. Smith, 385, 293, 354, 355, 
 
 383, 384 
 Espy V. Anderson, 150, 163, 374, 709, 
 
 738 
 
 Estep V. Estep, 423 
 Estep V. Watkins, 731 
 Estell V. Cole, 458, 587, 689, 695 
 Evans v. Ashby, 98, 99 
 Evans v. Bicknell, 235 
 Evans v. Boiling, 744, 750, 809 
 Evans v. Dendy, 86, 451 
 Evans v. Jones, 636 
 Evans v. Kingsberry, 468, 775 
 Evans v. McLucas, 333, 451, 454 
 Evans v, Saunders, 334 
 Evans v. Snvder, 138 
 Eveleth v. Crouch, 370 
 Everett v. Dilley, 290 
 Everson v. Kirtland, 36 
 Everts v. Brown, 337 
 Ewing V. Haudley, 669 
 Ewing V. Thompson, 213 
 Eyre v. Woodflne, 127 
 Eyston v. Symond, 746, 747 
 Eyton V. Dickon, 679, 700 
 
 Fagan v. Davidson, 161, 318, 691, 694, 
 
 738 
 Pagan v. McWhirter, 450 
 Falkner v. Eq. Rev. Society, 680 
 Falkner v. Guild, 36 
 Falls V. Dickey, 785 
 Pane v. Fane, 819 
 Failing v. Osborne, 435, 570 
 Fairbanks v. Williamson, 533 
 Fairbrother v. Griffin, 364 
 Fairchild v. Marshall, 680 
 Faircloth v. Isler, 148, 153 
 Faircloth v. Jordan, 504 
 Fairfax v. Lewis, 206 
 Faries v. Smith, 410 
 Farley v. Bryant, 538, 539, 540, 544 
 Farley v. Eller, 514 
 Farmers' & Mecli. Bank v. Detroit, 540, 
 
 543 
 Farmers' Bank v. Galbraith, 635, 640 
 Farmers' Bank v. Glenn, 385, 510 
 Farmers' Loan & Trust Co. v. Maltby, 
 
 504 
 Farmers" Bank v. Martin, 81 
 Farmers' Bank v. Peter, 81, 143 
 Paraham v. Hotchkiss, 425, 435, 440 
 Farnsworth v. Duiiner, 631 
 Farnum v. Buffum, 69 
 Farnum v. Peterson, 500 
 Farrell v. Lloyd, 339, 651 
 Farrington v. Tennessee, 610 
 Farrington v. Tourtellot, 398 
 Farrow v. Mays, 453 
 Fash V. Blake, 50 
 Favill V. Roberts, 139 
 Fehrle v. Turner, 423, 784 
 Feemster v. May, 35, 580, 585 
 Fentou v. Alsop, 799 
 Fenwick v. Buff, 545 
 Ferebee v. Hinton, 63 
 Ferguson v. Dent, 333 
 
XXXIV 
 
 TABLE OF CASES. 
 
 Ferguson v. Teel, 558 
 
 Fermor's Case, 105 
 
 Ferrell v. Alden, 407 
 
 Ferris v. Crawford, 283 
 
 Ferris v. Harshea, 341, 350 
 
 Ferris v. Plummer, 678 
 
 Ferry v. Sampson, 707 
 
 Ferson v. Sanger, 802 
 
 Fewster v. Turner, 458 
 
 Fife V. Clayton, 33 
 
 Fillingin v. Thornton, 788 
 
 Finch V. Edmondson, 115 
 
 Final v. Backus, 69 
 
 Findlay v. Toncray, 147, 324, 842 
 
 Findley v. Horner, 197 
 
 Finley'v. Steele, 330 
 
 Finn v. Sleight, 523 
 
 Finton v. Eggleston, 351 
 
 Field V. Snell, 362, 371 
 
 Fields V. Hunter, 408 
 
 Fields V. Baum, 557 
 
 Fields V. Squires, 334, 361, 418, 519 
 
 First Af. Soc. V. Brown, 673 
 
 First Af. M, E. Church v. Brown, 708 
 
 First Nat. Bank v. Gough, 530, 537, 544 
 
 First Nat. Bank v. Wentworth, 540, 546 
 
 Fish V. Cleland, 249 
 
 Fishback v. Williams, 577, 745 
 
 Fisher v. Abney, 451 
 
 Fisher v. Dow, 449, 451 
 
 Fisher v. Kay. 464, 465 
 
 Fisher v. Parry, 269 
 
 Fisher v. Salmon, 444 
 
 Fisher v. Wilcox, 687 
 
 Fisher v. Wood, 106 
 
 Fitch V. Baldwin, 260, 534, 800, 808 
 
 Fitch V. Casey, 34 
 
 Fitch V. Fitch, 512 
 
 Fitch V. Polke, 240, 780, 788 
 
 Fitch V. Seymour, 296 
 
 Fitch V. WoUard, 25, 37, 149 
 
 Fitts V. Hoitt, 294, 568, 731 
 
 Fitzer v. Fitzer, 283 
 
 Fitzgerald v. Peck, 816 
 
 F'itzhugh V. Croghan, 354, 259, 510 
 
 Fitzhugh V. Land Co., 665 
 
 Fitzpatrick v. Featherstone, 661 
 
 Fitzpatrick v. Fitzpatrick, 43 
 
 Fitzpatrick v. Hoffman, 408, 648 
 
 Fitzpatrick v. Sweeny, 730 
 
 Flagg V. Fames, 54 
 
 Flannagan v. OlDerthier, 181 
 
 Flannagan v. Young, 73 
 
 Flannigan v. Fox, 691 
 
 Flanniken v. Neal, 360 
 
 Fleming v. Burnham, 687, 726 
 
 Fleming v. Harrison, 148 
 
 Fleming v. Holt, 133, 153 
 
 Fletcher v. Beck, 610 
 
 Fletcher v. Button 17, 36, 310, 313, 331, 
 
 586 
 Fletcher v. Moore, 759 
 Fletcher v. Wilson, 510, 746 
 Flight V. Booth, 193 
 Flinn v. Barber, 20, 566 
 
 Flint V. Steadman, 894 
 
 Flint V. Woodin, 192 
 
 Floom V. Beard, 376 
 
 Florentine v. Barton, 98 
 
 Fludyer v. Cocker, 766 
 
 Flureau v. Thornhill, 211, 214, 215 
 
 Fly V. Brooks, 543 
 
 Flynn v. Bourneuf, 381 
 
 Flynn v. White Breast Coal Co., 301 
 
 Fogarty v. Finlay, 63 
 
 Foley V. City of Haverhill, 288 
 
 Foley V. Crow, 769 
 
 Folk V, Vai-n, 50 
 
 FoUiard v. Wallace, 337, 410, 412, 693 
 
 Follett V. Grant, 255 
 
 Folts V. Huntley, 340 
 
 Foot V. West, 204, 207, 565 
 
 Foote V. Burnett, 364, 368, 313, 366 
 
 Foote V. Clarke, 156, 256, 496 
 
 Force v. Dutcher, 557 
 
 Ford V. Belmont, 718 
 
 Ford V. Schlosser, 700 
 
 Ford V. Walworth, 100, 860 
 
 Ford V. Yates, 33 
 
 Fordyce v. Ford, 186 
 
 Fore V. McKenzie, 88, 112 
 
 Foreman v. Wolf, 700 
 
 Forest v. Camp, 137 
 
 Ft. Payne Coal & I. Co. v. Webster, 754 
 
 Forteblow v. Shirley, 766 
 
 Fosdick V. Burr, 121 
 
 Fosgate v. Herkimer Mfg. Co., 746 
 
 Foss V. Strachn, 512 
 
 Forster v. Abraham, 680 
 
 Forster v. Hoggart, 28, 29 
 
 Forster v. Scott, 782 
 
 Foster v. Dwinel, 523 
 
 Foster v. Foster, 295, 301, 811, 318 
 
 Foster v. Gressett, 198, 243, 663, 800 
 
 Foster v. Gillam, 650 
 
 Foster v. Herkimer Mfg. Co., 301, 481 
 
 Foster v. .Tared, 581 
 
 Foster v. Kennedy, 3.34 
 
 Foster v. Thompson, 394 
 
 Foster v. Woods, 384 
 
 Foster v. Y''oung, 156, 157 
 
 Fowler v. Cravens, 663 
 
 Fowler v. .Johnson, 311 
 
 Fowler v. Poling, 255, 341, 343, 848, 414 
 
 Fowler v. Shearer, 514 
 
 Fowler v. Smith, 350, 421 
 
 Fowler v. Ward, 661 
 
 Fox V. Birch, 463 
 
 Fox V. Haughton, 247 
 
 Fox V. Kitton, 610 
 
 Fox V. Mensch, 109, 641 
 
 Fox V. Widgery. 528 
 
 Fuller V. Jillette, 288 
 
 Fraker v. Brazclton, 747 
 
 Franchot v. Leach, 649 
 
 Francis v. Hazelrig, 696 
 
 Pranoiscus v. Keigert, 389 
 
 Frank v. Riggs, 421, 784 
 
 Franklin v. Dorland, 495 
 
 Franz v. Orton, 457 
 
TABLE OF CASES. 
 
 XXXV 
 
 Fraser v. Prather, 49 
 
 Fratt V. Fiske, 591 
 
 Frazer v. Robinson, 610 
 
 Frazer v. Supervisors, 355, 257, 370, 393 
 
 Frazier v. Tubb, 809 
 
 Frederick v. Campbell, 637, 640 
 
 Freebody v. Perry, 463 
 
 Freeland v. Pearson, 695 
 
 Preeligb v. Piatt, 440, 578 
 
 Freeman v, Auld, 447 
 
 Freeman's Bank v. Vose, 543 
 
 Freeman v. Foster, 384, 385 
 
 Freeman v. Preston, 67 
 
 Preize v. Chapin, 574 
 
 Freme v. Wright, 38, 689 
 
 Freer v. Hesse, 679, 708 
 
 Freetly v. Barnhart, 678, 735 
 
 French v. Howard, 796 
 
 French v. Genet, 487 
 
 French v. Pratt, 130 
 
 French v. Spencer, 521 
 
 Frenzel v. Miller, 347 
 
 Frcy V. Rawson, 495 
 
 Friedly v. Schutz, 118, 157, 641 
 
 Friedman v. Dewees, 741 
 
 Frink v. Bellis, 306 
 
 Frisble v. HoiJEnagle. 440 
 
 Frisby v. Ballauce, 517 
 
 Prische v. Kramer, 138 
 
 Fritz V. Pusey, 386, 293, 345, 351, 387 
 
 Froman v. Froman, 460, 546 
 
 Frost V. Angler, 300 
 
 Frost V. Atwood, 95, 136, 138 
 
 Frost V. Bunson, 764 
 
 Frost V. Earnest, 340 
 
 Frost V. Knight, 19 
 
 Frost r. Raymond, 356 
 
 Frost V. Smith, 579 
 
 Frost V. Yonkers Sav. Bank, 130, 130 
 
 Fruhauf v. Bendheim, 730 
 
 Fryer v. Rockefeller, 63, 77, 723 
 
 Fuchs V. Treat, 543 
 
 Fuhrman v. Loudon, 57, 637, 638 
 
 Fullen V. Savings Bank, 530 
 
 Fuller V, Hubbard, 150, 307, 561, 730 
 
 Fuller V. Hovey, 751 
 
 Fuller V. Jillette, 304 
 
 Fuller V. Williams, 307 
 
 Fulweiler v. Baugher, 397, 401 
 
 Funk V. Creswell, 332, 348, 351, 353 
 
 Funk V. Darst, 330, 517 
 
 Funk V. Newcomer, 494 
 
 Funk V. Voneida, 279, 287, 288, 302, 313 
 
 Furber v. Purdy, 567 
 
 Furman v. Caldwell, 141 
 
 Furman v. Elmore, 270, 357. 373, 380, 
 
 452 
 Furnas v. Durgin, 280, 344, 350 
 Furniss v. Williams, 255, 260 
 Furnold y. Bank, 487 
 
 G. 
 
 €te,ger v. Edwards, 447 
 Gaines v. Jones, 700 
 
 Gaines v. Kennedy, 138, 139 
 Gdines v. Merchants' Bank, 138 
 Gaither v. O'Doherty, 148, 150, 457, 
 
 746 
 Galbraith v. Dilday, 534 
 Galbraith v. Reeves, 594 
 Gale v. Conn, 423, 607 
 Gale V. Dean, 213 
 Gale V. Edwards, 294 
 Gale V. Gale, 683 
 Gale V. Morris, 533, 545 
 Gale V. Nixon, 585 
 Gallagher v. Withington, 483, 663 
 Galloway v. Barr, 463 
 Galloway v. Bradshaw, 773 
 Galloway v. Finlay, 483 
 Galvin v. Collins, 723 
 Galway v. Melchow, 544 
 Gamble v. Daugherty, 528 
 Gamble v. McClure, 331 
 Gammon v. Blaisdell, 16, 340 
 Gans V. Reushaw, 188, 559, 590, 659, 
 
 675, 678, 683, 769 
 Gantly v. Swing, 130 
 Ganz's Appeal, 569 
 Garber v. Armentrout, 633 
 Gardner v. Keteltas, 337, 345 
 Gardner v. Mayo, 804 
 Gardner v. Moore, 547 
 Gardner v. Niles, 380 
 Garfield v. Williams, 256, 363, 372 
 Garlock v. Cross, 365, 367' 
 Garner v. Leaverett, 431, 593, 661, 663 
 Garnett v. Garnett, 44 
 Garnett v. Macon, 108, 733, 734, 753, 
 
 754 
 Garnett v. Yoe, 301 
 Garrard v. Lantz, 485, 487, 635 
 Garrett v. Crosson, 635 
 Garrett v. Lynch, 110, 193 
 Garrett v. Stuart, 383 
 Garrison v. Moore, 389 
 Garrison v. Sandford, 363, 304 
 Gars V. Sanger, 391, 810 
 Gartman v. Jones, 431, 615 
 Gartrell v. Stafford, 468 
 Garvin v. Cohen, 444, 585 
 Gaston v. Frankum, 33 
 Gastry v. Perrin, 35 
 Gates V. McLean, 584, 587 
 Gates v. Winslow, 616 
 Gault V. Van Zile, 146 
 Gaunt V. Wainman, 523 
 Gautreaux v. Boote, 37 
 Gay V. Hancock, 438, 793, 795, 797 
 Gayle v. Fattle, 793 
 Gazley'v. Pierce, 33. 150 
 Gedye v. Duke of Montrose, 749 
 Gee V. Pharr, 330 
 Gee V. Moore, 333, 519 
 Gee V. Saunders, 578 
 Gehr v. Hogerman, 661, 662 
 Geoghegan v. Conolly, 20, 183 
 Geoghegan v. Ditto, 138, 140 
 George v. Conhaim, 47, 730, 756 
 
XXXVl 
 
 TABLE OF CASES. 
 
 George v. Putney, 355 
 
 George v. Stockton, 580, 584 
 
 Georgetown v. Smith. 120 
 
 Gen. Finance Co. v. Liberator Society, 
 
 493, 513 
 Genner v. Hammond, 330 
 (Jennings v. Norton, 280 
 Gentry v. Callahan, 533 
 Gentry v. Hamilton, 763 
 Gerald v. Elley, 299 
 Gerault v. Anderson, 311, 466 
 Gerdes v. Moody, 584, 541 
 Gerhardt v. Spalding, 336 
 German Real Est. Co. v. Starke, 430 
 Gest V, Flock, 68 
 Getchell v. Chase, 435, 616 
 Getty V. Peters, 483, 550 
 Geyer v. Girard, 498 
 Gibbs V. Cliampion, 465 
 Gibbs V. Jemison, 328 
 Gibbs V. Thayer, 333 
 Gibson v. Carreker, 313 
 Gibson v. Cboteau, 513, 517, 530 
 Gibson v. Clarke, 463 
 Gibson v. Colt, 155 
 Gibson v. D'Este, 799 
 Gibson v. Mussey,158 
 Gibson v. Newman, 580, 741, 743 
 Gibson v. Patterson, 758 
 Gibson v. Rich art, 433, 617 
 Gibson v. Spurrier, 686 
 Gibbs V. Thayer, 518 
 Giddings v. Confield. 413 
 Gifford V. Fereuson, 433 
 GifCord v, Socfety, 425, 486 
 Gilbert v. Bulkley, 354, 363 
 Gilbert v. Cherry, 18 
 Gilbert v. Cooley, 187 
 Gilbert v. Hoffman, 141, 497 
 Gilbert v. James, 106 
 Gilbert v. Peteler, 223, 668, 730 
 Gilbert v. Rushmer, 310 
 Gilbert v. Wyman, 280 
 Gilbreath v. Dilday, 542 
 Gilchrist v. Buie, 34, 35, 148, 149 
 Gilchrist v. Dilday, 70 
 Giles V. Dugro, 269, 293, 359, 389 
 Giles V. Paxson, 690 
 Gill V. Corbin, 235 
 Gillam v. Briggs, 453 
 Gillespie v. Torrance, 563 
 Gillett V. Maynard, 555, 566, 579, 669 
 Gillette v. Hill, 137 
 Gills V. Wells, 688, 716 
 Gilpin V. Smith, 434, 651 
 Gilroy v. Alis, 803 
 Giltner v. Ruyl, 461 
 Giniell v. Adams, 49 
 Ginn v. Hancock, 396 
 Gish V. Moomaw, 690 
 Gittings V. Worthington, 333 
 Given v. McCarroll, 102 
 Glass V. Brown, 800 
 Glass V. Richardson, 688 
 Glasscock v. Minor, 193, 348, 349 
 
 Glasscock v. Robinson, 660, 734 
 
 Gleason v. Smith, 339 
 
 Glenn v. Allison, 156. 157 
 
 Glenn v. Clapp, 81, 83 
 
 Glenn v. Rossler, 303 
 
 Glenn v. Thistle, 353, 440, 444 
 
 Glover v. Shields, 53 
 
 Gobble V. Linden, 281 
 
 Gober v. Hart, 595 
 
 Gochenour v. Mowry, 506 
 
 Goddin V. Vaughn," 36, 149, 154, 184, 
 
 193, 194, 764 
 Godley v. Taylor, 155 
 Godson V. Turner, 30, 195 
 Goelth V. White, 663 
 Goerlitz v. Malanistta, 734 
 Goettel V. Sage, 640, 804 
 Goetz V. Walters, 758, 761 
 GofE V. Hawkes, 213, 223, 335 
 Gofl V. O'Connor, 131 
 Golden v. Maupin, 609 
 Goldsmith v. Guild, 751 
 Gorman v. Salisbury, 553 
 Gonzales v. Hukil, 518 
 Gooch V. Atkins, 140 
 Good V. Good, 324 
 Good V. Herr, 812 
 Goodbar v. Daniel, 118, 133 
 Goodbar v. Dunn, 544 
 Goode V. Smith, 67 
 Goodel V. Bennett, 371, 496 
 Goodenough v. Fellows, 513 
 Goodin v. Decker, 194, 591 
 Goodkind v. Bartlett. 885, 731 
 Goodman v. Randall, 543, 545 
 Goodman v. Rust, 658 
 Goodman v. Winter, 139 
 Goodwin v. Fmncis, 228 
 Goodyere v. Ince, 127 
 Gordon v. Champneys, 674 
 Gordon v. Goodman, 809 
 Gordon v. Malioney. 661 
 Gordon v. Phillips, 433 
 Gordon v. Sims. 78 
 
 Gore v. Brazier, 344, 350, 374, 379, 381 
 Goring v. Shreve, 187 
 Gosbell v. Archer, 563, 566 
 Goss V. Lord Nugent, 31, 189, 552 
 Goss V. Singleton, 741 
 Goucher v. Helmbold, 634 
 Goucher v, Martin, 553 
 Gough V. Bell, 494 
 Gould V. Sternberg, 89, 90 
 Gould V. Woodward, 63 
 Gove V. Gather, 63 
 Governor v. West Imp. Commrs., 78 
 Gourdine v. Fludd, 454 
 Grace v. Regal, 208 
 Grady v. Ward, 701 
 Gragg V. Richardson, 37 99, 403, 40 
 Graham v. Anderson, 57 
 Graham v. Dyer, 379, 394, 403 
 Graham v. Gates. 498 
 Graham v. Graham, 313 
 Graham v. Hackwell. 459 
 
TABLE OF CASES. 
 
 XXXVll 
 
 Graham v. Hackwith, 466 
 
 Graham v. Meek, 514 
 
 Graham v. Tankerslc}', 405, 408 
 
 Granger v. Olcott, 616, 804 
 
 Granuis v. Clark, 345, 413 
 
 Granson v. Weddle, 543 
 
 Grant v. Hill, 390 
 
 Grant v. Law, 663 
 
 Grant v. Tallman, 312, 435 
 
 Grant v. Wasson, 700 
 
 Grantland v. Wight, 154, 375, 454, 670, 
 
 787, 794, 795, 796 
 Grapengether v. Ferjervary, 547 
 Graves v. Mattingly, 156 
 Graves v. Spier, 14 
 Graves v. Wilson, 30 
 Gray v. Briscoe, 393 
 Gray v. Handkisson, 453 
 Gray v. Hill, 698 
 Gray v. Jones, 181 
 Great Falls Ice Co. v. Worster, 506 
 Great Western Stock Co. v. Saas, 364 
 Greaves v. Ashton, 33 
 Green v. Biddle, 338 
 Green v. Campbell, 785 
 Green v. Chandler, 20, 233, 253, 648, 
 
 753, 765 
 Green v. Collins, 358 
 Green v. Covilland, 33 
 Green v. Finucane, 196 
 Green v. Green, 204, 486, 559, 580, 
 
 730 
 Green v. Irving, 146, 348, 353, 355 
 Green v. McDonald, 607 
 Green v. Munson, 3.55 
 Green v. Pulsford, 681 
 Green v. Whipple, 784 
 Greenhlatt v. Herrmann, 463, 718 
 Greenby v. Cheevers, 304, 485, 580, 
 
 751 
 Greenby v. Wilcocks, 261, 412 
 Greene v. Allen, 13, 667 
 Greene v. Creighton, 395, 311, 314 
 Greene v. Tallman, 309 
 Greene v. AYilliams, 310, 403 
 Greenlaw v. Williams, 406, 407 
 Greenleaf v. Cook, 197, 431, 439, 440, 
 
 617, 658 
 Greenleaf v. Queen, 431, 608, 657, 696 
 Greenlee v. Gaines, 593, 663, 800 
 Greenough v. Small, 116 
 Greenvault v. Davis, 341, 348, 349, 352, 
 
 353, 871, 384 
 Greenwood v. Hoyt, 218 
 Greenwood v. Ligon, 35 
 Gregory v. Christian, 759 
 Gregory v. Peoples, 497, 515, 516 
 Gregory v. Scott, 559 
 Greville v. Da Costa, 11, 557 
 Greyson v. Riddle, 758 
 Greyson v. Tuson, 116 
 Grico V. Scarborough, 381, 293 
 Grider v. Land Mtge. Co., 73 
 Gridley v. Tucker, 439 
 Griel v. Lomax, 617 
 
 Griffin v. Cunningham, 670, 693, 701, 
 
 709, 734 
 Griffin v. Fairbrother, 255, 363 
 Griffin v. Reynolds, 348, 874, 390 
 Griffin v. Sheffield, 514 
 Griffith V. Bogert, 107 
 Griffith V. Depew, 594, 665, 668 
 Griffith V. Kempshall, 241, 244, 485, 
 
 634, 684 
 Griffith V. Townley, 804 
 Griggs V. Landis, 193 
 Griggs V. Woodruff, 193, 303, 598 
 Grignon v. Astor, 98, 99, 100, 101, 114 
 Grimes v. Redman, 498 
 Grist v. Hodges, 262, 335 
 Griswold v. Allen, 358 
 Griswold v. Block, 73 
 Griswold v. Hazard, 813, 815 
 Griswold v. Hicks, 107 
 Groesbeok v. Harris, 343, 893, 403, 449 
 Groesbeck v. Seeley, 58 
 Groom v. Booth, 28 
 Gross Lumber Co. v. Leitner, 117 
 Grout V. Townsend, 514 
 Grove v. Bastard, 681 
 Grove v. Zumbro, 67 
 Grubb's Appeal, 585 
 Grundy v. Jackson, 483, 668 
 Grymes v. Saunders, 810 
 Gue V. Jones, 96 
 Guerin v. Smith, 285, 304 
 Guerrant v. Anderson, 507 
 Guerard v. Rivers, 380 
 Guest V. Homfray, 753 
 Guice V. Sellers, 424 
 Guilmartin v. Urquhart, 535 
 Guinotte v. Choteau, 883 
 Gunby v. Sluter, 348, 553 
 Gunn v. Thornton, 788 
 Gunnis v. Erhart, 33 
 Gunter v. Williams, 348, 863 
 Guthrie v. Pugsley, 889, 394 
 Guthrie v. Russell, 809, 810, 313 
 Guthrie v. Thompson, 200, 804 
 Guttschlick V. Bank, 191, 557, 588, 634 
 Guynet v. Mantel, 774 
 Gwin V. McCarroll, 113, 115 
 Gwinther v. Gerding, 237, 638, 647, 654 
 Gwynn v. Hamilton, 813 
 Gwynn v. Thomas, 418 
 
 H. 
 
 Haber v. Burke, 659 
 Habig V. Dodge, 333, 519, 521 
 Hacker v. Blake, 273 
 Hacker v. Storer, 262, 269 
 Hacket v. Glover, 845 
 Hackett v. Huson, 807 
 Haddock v. Taylor, 224 
 Hadlock v. Williams, 658, 769 
 Haff V. Price, 138 
 Haffey v. Birchetts, 354, 375, 490 
 Haffey v. Lynch, 734 
 Haggart v. Scott, 746, 747 
 
XXXVUl 
 
 TABLE OF CASES. 
 
 Hagler v. Simpson, 253, 351 
 
 Haight V. Hayt, 233, 647 
 
 Haines v. Fort, 402 
 
 Haire v. Baker, 282 
 
 Halcombe v. Lowdermilk, 133, 140 
 
 Haldane v. Sweet, 193, 298, 298, 800, 
 
 434, 607 
 Hale V. Cravener, 478, 677, 696, 698 
 Hale V. Marquette. 109, 111 
 Hale V. New Orleans, 874, 747 
 Hale V. Wilkinson, .585 
 Hall V. Betty, 30, 23, 38 
 Hall V. Bray, 348 
 Hall V. Chaffee, 520 
 Hall V, Dean, 287, 309 
 Hall V. Delaplaine, 213 
 Hall V. Gale, 258, 426 
 Hall V. McArthur, 559 
 Hall V. Nevill, 195 
 Hall V. Plaiue, 360 
 Hall V. Priest, 793 
 Hall V. Scott, 700 
 Hall T. Scott Co., 364 
 Hall V. Smith, 30 
 Hall V. York, 213 
 Halley v. Oldham, 131 
 Hallick V. Guy, 112 
 Halls V. Thompson, 235, 237, 250 
 Halsey v. Jones, 138, 187 
 Ham V. Ham, 523 
 Hamar v. Medskar, 547 
 Hamilton v. Cutts, 348, 352 
 Hamilton v. Hamilton, 464 
 Hamilton v. Hulett, 756 
 Hamilton v. Luck, 348 
 Hamilton v. "Wilson, 255, 356, 261 
 Hamlon v. Sullivant, 539 
 Hammatt v. Emerson, 781 
 Hammers v. Hanrick, 243, 593 
 Hammerslough v. Haekett, 272, 364 
 Haramersmitli v. Espy, 123 
 Hammond v. Hamlin, 212, 315 
 Hampton v. Pool, 364 
 Hampton v. Specknagle, 205, 736 
 Hancock v., Bramlett, 771 
 Hancock v. Carlton, 499 
 Hancock v. Cloud, 596 
 Hand v. Grant, 80, 118 
 Handy v, Waxter, 80 
 Hanks v. Pickett, 483 
 Hanna v. Phillip, 473 
 Hanna v. Shields, 272, 422, 790 
 Hannah v. Henderson, 355 
 Haiman v. McMickle, 584 
 Hanrick v. Patrick, 519 
 Hanson v. Buckner, 854, 378, 377 
 Haralson v. Langford, 4i9, 450, 451 
 Harden v. Collins, 517 
 Hardigree v. Jlitchum, 486, 819 
 Hardin v. Clark, 130 
 Hardin v. Harrington, 486 
 Hardin v. Kirk, 57 
 Harding v. Comm'l Loan Co., 784 
 Harding v. Larkin, 348, 394, 395, 396, 
 
 398, 400 
 
 Harding v. Nelthorpe, 243 
 
 Hardwick v. Forbes, 802 
 
 Hardy v. Nelson, 379, 408, 498 
 
 Hare v. Burges, 155 
 
 Hare v. Holloman, 107, IIG 
 
 Harkreader v. Clayton, 481 
 
 Harland v, Eastland, 252 
 
 Harle v. McCoy, 587 
 
 Harleman v. Cowan, 481 
 
 Harlow v. Thomas, 295, 313 
 
 Harmer v. Morris, 503 
 
 Harn v. Smith, 495 
 
 Harnett v. Yielding, 475 
 
 Harpening v. Dutch Church, 700 
 
 Harper v. Dowdney, 291 
 
 Harper v. Jeffries, 485, 487, 635 
 
 Harper v. Perry, 360, 367 
 
 Harper v. Reno, 481 
 
 Harper v. Tidholm, 165 
 
 Harriman v. Gray, 523 
 
 Harrington v. Higgins, 204, 306, 744, 745 
 
 Harrington v. Murphy, 394, 307, 808, 356 
 
 Harris v. Bolton, 300, 660 
 
 Harris v. Carter, 343, 741, 753 
 
 Harris v. Granger. 771, 776 
 
 Harris v. Newell, 273 
 
 Harris v. Kowan, 424 
 
 Harris v. Smith, 689 
 
 Harrison v. Boring, 598 
 
 Harrison v. Deramus, 197 
 
 Harrison v. Harrison, 105, 116 
 
 Harrison v. Shanks, 126 
 
 Harrison v. Soles, 487 
 
 Hart V. Bleight, 191 
 
 Hart V. Gregg, 519 
 
 Hart V. Handlin, 190, 658, 730 
 
 Hart V. Hannibal & St. J. R. Co., 424, 
 
 599, 801 
 Hart V. Porter, 684, 637, 641 
 Hart V. Smith, 132 
 Hartford Co. v. Miller, 263, 372 
 Hartley v. Costa, 510 
 Hartley v. Gregory, 280 
 Hartley v. James, 204, 564, 579, 700 
 Hartley v. Smith, 681, 694 
 Harth v. Gibbs, 119, 141, 143 
 Hartshorn v. Cleveland, 290 
 Hartzell v. Crumb, 213 
 Harvey v. Doe, 258 
 Harvey v. Morris, 588 
 Harvie v. Hodge, 494 
 Harwood v. Benton, 303 
 Harwood v. Bland, 186, 187 
 Harwood v. Lee, 308, 310 
 Haseltine v. Simmons, 677 
 Hastings v. O'Donncll, 617 
 Hastings v. Vaughn, 69 
 Hatch V. Barr, 49 
 Hatch V. Cobb, 463, 760 
 Hatcher v. Andrews, 296, 784, 785 
 Hatcher v. Briggs, 139 
 Haug V. Primeau, 115 
 Haven v. Grand June. R. Co., 404 
 Havens v. Foster, 818 
 1 Havens v. Goudy, 583 
 
TABLE OF CASES. 
 
 XXXIX 
 
 Haveriiigtou's Case, 393 
 
 Hawes v. Rucker, 139 
 
 Hawkins v. Brown, 393 
 
 Hawkins v. Buiruss, 66 
 
 Hawkins T. Jcilinson, 573 
 
 Hawn V. Norris, 587 
 
 Hawpe V. Smith, 110, 111 
 
 Hawralty v. Warren, 473 
 
 Hawthorn v. City Bank, 804, 313 
 
 Hayden v. Westcott, 60, 73 
 
 Hayes v. Bickerstaff, 337, 413 
 
 Hayes v. Bonner, 560, 633 
 
 Hayes v. Ferguson, 346 
 
 Hayes v. Nourse, 686, 739 
 
 Hayes v. Skidmore, 774 
 
 Hayes v. Tabor, 519 
 
 Haggin v. Oliver. 783 
 
 Haymond v. Camden, 107, 138 
 
 Hayner v. Smith, 339 
 
 Haynes v. Faney, 13, 18, 763 
 
 Haynes v. Lucas, 11 
 
 jjaynes v. Seachrist, 545 
 
 Haynes v. Stevens, 368, 400, 498 
 
 Haynes v. White, 33, 34, 584 
 
 Haynes v. Young, 359 
 
 Hays V. Bonner, 650 
 
 Hays V. Dalton, 138 
 
 Hays V. Griffith, 90 
 
 Hays V. Trible, 707, 715, 731, 753, 716 
 
 Hayward v. Lomax, 485 
 
 Hazelrig v. Hutson, 473 
 
 Headley v. Shaw, 199, 206 
 
 Head's Trustees, In re, 756 
 
 Headriclc v. Wiseliart, 383 
 
 Headrick v. Yount, 78, 114 
 
 Heard v. Hall, 157 
 
 Hearne v. Tomlin, 188, 557 
 
 Hearne v. Tenant, 759 
 
 Heath v. Black, 127 
 
 Heath v. Crealock, 418, 493 
 
 Heath v. Newman, 349. 850, 424, 660 
 
 Heath v. Whidden, 304 
 
 Heck V. Remka, 537 
 
 Heckcr v. Sexton, 718 
 
 Hedderley v. Johnson, 674, 694 
 
 Hedges v. Kerr, 149, 154 
 
 Hedrick v. Smith, 398 
 
 Heflin v, Phillips, 830, 848, 431, 784 
 
 Heidenburg v. Jones, 306 
 
 Heimburg v. Ismay, 337, 473, 729, 781 
 
 Heisch v. Adams, 617 
 
 Hellreigel v. Manning, 694, 731 
 
 Helvenstein v. Higginson. 421, 584 
 
 Hemmer v. Hustace, 686, 714, 716 
 
 Hempstead v. Easton, 513 
 
 Henderson v. Brown, 789 
 
 Henderson v. Grewell, 64 
 
 Henderson v. Hay, 145 
 
 Henderson v. Henderson, 394, 312, 383, 
 
 777 
 Henderson v. Lacon, 285 
 Henderson v. Overton, 119, 133, 493, 
 
 495, 533, 718 
 Henderson v. Perkins, 706 
 Henderson v. Rice, 67 
 
 Hendricks v. GHlespie, 188, 695, 709, 
 
 784, 736, 738, 753 
 Hendricks v. Goodrich, 663 
 Hendricks v. Kesee, 361 
 Hendricks v. Stark, 397 
 Hendrickson v. R. Co,, 138 
 Henuing v. Withers, 370, STi 
 Henry v. Elliott, 615, 793 
 Henry v. Liles. 148, 468 
 Henry v. McEntee, 360 
 Henry v. McKerlie, 487 
 Hensley v. Baker, 135 
 Hepburn v. Auld, 730, 753, 768 
 Hepburn v. Dunlop, 657, 746 
 Heppinstall v. O'Doneli, 733 
 Herbemont v. Sharp, 454, 610 
 Herbert v. Smith, 681 
 Herbert v. Stanford, 583 
 Herman v, Sommers, 682, 697 
 Herndon v. Venable, 212, 231 
 Herrick v. Moore, 286, 399, 316 
 Herrin v. Molntyre, 366 
 Herrod v. Blackburn, 38 
 Herron v. DeBard, 449 
 Herryford v. Turner, 148, 425, 448, 568 
 Hersey v. Turbett, 634 
 Hertzberg v, Irwin, 635, 684, 718 
 Hertzog v. Hertzog, 313, 233, 334 
 Hester v. Hunnicutt, 852 
 Hewitt V, Powers, 544, 547 
 Heyn v. Ohmaun, 414 
 Hiatt V. Callaway, 539 
 Hibbert v, Shee, 557 
 Hicks V. Hicks, 180 
 Hicks V. Lovell, 584 
 Hickson v. Linggold, 113, 593, 753 
 Hickson v. Rucker, 78 
 Higgins V. Eagleton, 14, 202, 762 
 Higgins V. Johnson, 490 
 Higginson v. Clowes, 81, 33 
 Hightower v. Smith. 701 
 Higley v. Smith, 156, 616 
 Higley v. Whittaker, 583 
 Hilary v. Waller, 700 
 Hile V. Davison, 784 
 Hileman v. Wright, 530 
 Hill V. Bacon, 388 
 Hill V. Billingsly, 138 
 Hill V. Buckley, 467 
 Hill V. Butler, 425 
 Hill V. Fiske, 464 
 Hill V. Hobart, 14, 38, 306, 213 
 Hill V. Ressegieu, 36, 151, 152 
 Hill V. Samuel, 481, 482, 584, 661 
 Hill V. West, 514 
 Hilmert v. Christian, 378 
 Hilton V. Duncan, 594 
 Hinckley v. Smith, 771 
 Hinds v. Allen, 403, 408 
 Hines v. Jenkins, 408 
 Hines v. Richter, 210 
 Hines v. Robinson, 495 
 Hinkle v. Margerum, 340 
 Hipwell V. Knight, 748, 750 
 Hiss V. McCabe, 60 
 
xl 
 
 TABLE OF CASES. 
 
 Hitchcock V. Caruthers, 138 
 
 Hitchcock V. Fortler, 499 
 
 Hitchcock V. Giddings, 251, 630, 804, 
 
 810 
 Hitchins v. Pettingill, 536 
 Hits V. Kier, 564 
 Hoag V, Rathbun. 435, 787 
 Hoback v. Kilgore, 148, 151 
 Hobbs V. King. 363, 364, 513, 514 
 Hobein v. Drewell, 444 ' 
 Hobson V. Bell, 35 
 Hochster v. De La Tour, 19 
 Hodges T. Fabian, 116 
 Hodges V. Latham, 343 
 Hodges V. Litchfield, 319 
 Hodges V. Saunders, 154, 363 
 Hodgson V. Farrell, 107 
 Hoe's Case, 137 
 Hoffman v. Bosch, 373 
 Hoffman v. Fett, 41 
 Hogan V. McMurtry, 743 
 Hogau V. Weyer, 663 
 Hogg V. Odom, 45 
 Hogsett V, Ellis, 443 
 Hoke V. Jones, 789, 794 
 Holabird v. Burr, 545 
 Holbrook v. Debo, 520 
 Holden v. Curtis, 633 
 Holden v. Taylor, 346 
 Holeman v. Maupin, 794 
 Holladay v. Menifee, 273, 408, 414, 585 
 Holland v. Anderson, 347, 353, 658 
 Holland v. Holmes, 148 
 Holland v. Johnson, 95 
 Holland v. Moon, 547* 
 Holland v. Rogers, 37 
 HoUenburgh v. Morrison, 560 
 Hollister v. Dillon, 141 
 HoUey v. Younge, 433, 649 
 Holin V. Wust, 165 
 Holman v. Creagmiles, 446 
 Holman v, Criswell, 11, 153 
 Holmes v. Holmes, 301, 308, 329, 745, 
 
 777 
 Holmes v. Richards, 698, 705 
 Holmes v. Shaver, 80 
 Holmes v. Sinnickson, 373, 400 
 Holt's Appeal, 720 
 Holtzinger v. Edwards, 118. 123 
 Holyoke v. Clarke, 156 
 Home Life Ins. Co. v. Sherman, 348 
 Homer v. Purser, 808 
 Honaker v. Shough, 138 
 Hoock V. Bowman, 757 
 Hood's Appeal, 897 
 Hood V. Huff, 585 
 Hooker v. Folsom, 351, 433 
 Hooper v. Armstrong, 436 
 Hooper v. Henry, 499 
 Hooper v. .Jackson, 755 
 Hooper v. Sao. Co. Bank, 355 
 Hoot V. Spade, 390 
 Hoover v. Chamber, 755 
 Hope V. Blair, 97 
 Hope V. Stone, 329, 513, .520 
 
 Hopkins v. Delaney, 63 
 
 Hopkins v. Lane, 363, 863, 365 
 
 Hopkins v. Lee, 14, 313, 316 
 
 Hopkins v. Mayzck, 816, 817 
 
 Hopkins v. Yowell, 214 
 
 Hopper V. Hopper, 473 
 
 Hoppes V. Cheek, 337, 431, 784, 785 
 
 Hoppin V. Hoppin, 494 
 
 Hoppin V. Lutkin, 783 
 
 Horbach v. Gray, 638 
 
 Horn V. Butler, 690 
 
 Hornbeck v. Building Assn., 71 
 
 Hornbeck v. Westbrook, 45 
 
 Horner v. State Bank, 99 
 
 Horrigan v. Rice, 260 
 
 Horrocks v. Rigby, 467 
 
 Horsford v. AYright, 878 
 
 Horton v. Arnold, 426, 585 
 
 Hosford V. Nichols. 146 
 
 Hough V. Rawson, 573 
 
 Houghtaling v. Lewis 634 
 
 House V. Kendall, .557, 726 
 
 House V. McCormick, 494, 495 
 
 Houslay v. Lindsay. 77 
 
 Houston V. Dickinson, 386 
 
 Houston V. Henley, 193, 780, 793 
 
 Houston V. Randolph, 65 
 
 Houx V. Bates Co., 540 
 
 Howard v. Doolittle, 339 
 
 Howard v. North, 137 
 
 Howard v. Randolph, 48, 454 
 
 Howe V. Harrington, 155, 517 
 
 Howe V. Hunt, 679 
 
 Howe V. Hutchinson, 164 
 
 Howe V. Walker, 281 
 
 Howell V. Richards, 254, 327, 337 
 
 Howes V. Barker, 624 
 
 Howland v. Bradley, 477 
 
 Hoxie V. Finney, 519 
 
 Hoy V, Smythies, 29 
 
 Hoy V. Taliaferro, 352, 434 
 
 Hoyt V. Dimon, 503 
 
 Hoyt V. Ketcham, 730 
 
 Hoyt V. Tuxbnry, 165, 738, 750 
 
 Hubbard v. Chappel, 435. 790 
 
 Hubbard v. Norton, 399, 813, 368, 389 
 
 Hubert v. Grady, 449 
 
 Hudgin V. Pludgin, 107, 188, 487 
 
 Hudson V. Steare, 394 
 
 Hudson V. Swift, 199, 580 
 
 Hudson V. Watson, 199, 307 
 
 Hughes V. McNider, 437, 510, 760 
 
 Hughes V. Parker, 30, 31 
 
 Huff V. Cumberland Val. Land Co., 349 
 
 Huffman v. Gains, 131 
 
 Huish's Charity, In re, 681 
 
 Hulett V. Hamilton, 617 
 
 Hulfish V. O'Brien, 485, 634 
 
 Hull V. Field, 607 
 
 Hull V. Hull, 107, 138, 339 
 
 Hulse V. White, 873, 895 
 
 Hume V. Bentley, 39, 183, 763 
 
 Hume V. Desstir, 790 
 
 Hume V. Pocock, 20, 348, 689 
 
 Humphrey v. Clement, 294, 473, 474 
 
TABI,K OF CASES. 
 
 xH 
 
 Humphrey v. McClenachan, 389, 804 
 
 Humphrey v. Wade, 78 
 
 Humphreys v. Hurtt, 526 
 
 Humphreys v. Moses, 697 
 
 Humpkey v. Norris, 15 
 
 Hundley v. Tibbitts, 741 
 
 Hunt V. Amidon, 343, 363, 439, 643 
 
 Hunt V. Marsh, 435 
 
 Hunt V. Middlesworth; 365, 440 
 
 Hunt V Moore, 242, 245 
 
 Hunt V. Orwig, 363, 371, 385 
 
 Hunt V. Rousmaniere, 813, 813, 816 
 818 
 
 Hunt V. Silk, 190, 585, 664 
 
 Hunt V. Stearns, 755 
 
 Hunt V. Weir, 725 
 
 Hunter, In re, 20 
 
 Hunter v. Bales, 458, 767, 768 
 
 Hunter v. Goudy, 200 
 
 Hunter v. Graham, 453 
 
 Hunter v. Jameson, 155 
 
 Hunter v. O'Neill, 34 
 
 Hunter v. Watson, 45 
 
 Huntley v. Waddell, 336 
 
 Huntsman v. Hendricks, 392 
 
 Hurd V. Hall, 803, 805 
 
 Hurd V. Smith, 433 
 
 Hurley v. Brown, 457, 754 
 
 Hurley v. Coleman, 435 
 
 Hurst V. Lithgrow, 364 
 
 Hurst V. McKeil, 179 
 
 Hurst V. Means, 15, It, 573, 578, 585, 597 
 
 Hurt V. Blackstown, 189 
 
 Hurt V. McReynolds, 189, 455, 570 
 
 Hussey v, Roquemore, 549 
 
 Huston V. Noble, 671 
 
 Hutchins v. Brooks, 109 
 
 Hutchins v. Carleton, 50 
 
 Hutchins v. Moody, 294 
 
 Hutchins v. Rountree, 394 
 
 Hutchinson v. Ainsworth, 547 
 
 Hutchinson v. McNutt, 457 
 
 Hutson V. Furnas, 527, 543 
 
 Huyck V. Andrews. 295, 298, 301 
 
 Hyatt V. Seelej', 151 
 
 Hyde v. Dallaway, 31, 700 
 
 Hyde v. Keller, 200, 659, 737 
 
 Hyde v. Kelly, 469 
 
 Hyde v. Redding, 103 
 
 Hyman v. Boston Chair Mfg. Co., 330, 
 
 348 
 Hymes v. Esty, 398, 399, 303, 393 
 Hymes v. Van Cleef, 373 
 Hymes v. Branch, 686, 724 
 Hyne v. Campbell. 720, 723, 804 
 Hynes v. Oldham, 93 
 Hyslip V. French, 663 
 
 I. 
 
 Ice V. Ball, 634 
 
 Ikelheimer v. Chapman, 118 
 
 111. Land Co. v. Boomer, 367, 371, 498 
 
 Innis V. Agnew, 323 
 
 Ingalls V. Cook, 289, 498 
 
 Ingalls V. Eaton. 374, 376, 377 
 
 Ingalls V. Hahn, 13, 17, 685 
 
 Inge V. Lippingwell, 553 
 
 lugraham v. Grigg, 63, 70 
 
 Ingram v. Little, 49 
 
 Ingram v. Morgan, 344, 779, 784 
 
 Inness v. Agnew, 264 
 
 Innis V. Willis, 20, 558, 658 
 
 Ins. Co. V. Marshall, 617 
 
 Irbey v. Wilson, 103 
 
 Irick V. Fulton, 813 
 
 Ivvin V, Askew, 213 
 
 Irvin V. Blackley, 300, 304, 485 
 
 Irvine v. Irvine, 5, 11, 523 
 
 Irving V. Brownell, 68 
 
 Irving V. Campbell, 687, 692, 731 
 
 Isele V. Arlington Sav. Bank, 396 
 
 Ishmael v. Parker, 199 
 
 Isler V. Eggers, 588 
 
 Ives V. Kimball, 62 
 
 Ives V. Niles, 325, 404, 638, 640 
 
 Ives V, Pierson, 113 
 
 Ivey V. McKennon, 106 
 
 Jack V. McKee, 313 
 
 Jackson v. Ashton, 659 
 
 Jackson v. Bradford, 507, 519 
 
 Jackson V. Brovin, 187 
 
 Jackson v. Bull, 5, 16 
 
 Jackson v. Cory, 45 
 
 Jackson v, C'onhn, 164 
 
 Jackson v. Demont, 258 
 
 Jackson v. Edwards, 90, 473, 753, 777 
 
 Jackson v. Fosbender, 485 
 
 Jackson v. Green, 256, 838 
 
 Jackson v. Hoffman, 338, 497 
 
 Jackson v. Hubbell, 460, 510 
 
 Jackson v. Knight, 575 
 
 Jackson v. Ligon, 186, 194, 195, 748, 
 
 760, 764, 774 
 Jackson v. Littell, 516 
 Jackson v. Marsh, 402 
 Jackson V. SIcGinniss, ] 87 
 Jackson v. Mills, 498 
 Jackson v. Moncrief, 587 
 Jackson v. Murray, 516, 696, 736, 760 
 Jackson v. Norton, 604, 780, 793 
 Jackson V. Peck, 516 
 Jackson v. Rosevelt, 138, 129 
 Jackson v. Sassaman, 278 
 Jackson v. Schoonmaker, 44 
 Jackson v. Sellick, 347 
 Jackson v. Summerville, 497 
 Jackson v. Turner, 313, 373, 393 
 Jackson v. Vanderheyden, 514 
 Jackson v. Waldron, 533 
 Jackson v. Whitehead, 28, 30 
 Jackson v. Winslow, 494, 516, 518, 519 
 Jackson v. Wright, 460 
 Jacobs V. Locke, 469 
 Jacobs V. Morrison, 681 
 Jacocks V, Gilliam, 320 
 Jacoway v. Gault, 64, 71 
 
xlii 
 
 TABLE OF CASES. 
 
 Jacques v. Vigo Co., 458 
 
 James v. Cutler, 536 
 
 James v. Hayes, 423, 635 
 
 James v. Jenkins, 300, 303 
 
 James v. Lamb, 385 
 
 James v. Lawreaceburgli Ins. Co., 440 
 
 James v. Lichfield, 467, 475 
 
 James v. McKennon, 801 
 
 James v. Myers, 91, 678, 697, 715 
 
 James v. Shore, 778 
 
 Jandorf v. Patterson, 801 
 
 Jaques v. Esler, 431, 445, 609, 784 
 
 Jarboe v. McAtee, 706, 714, 745 
 
 Jarden v. Lafierty, 415 
 
 Jarman v. Davis, 670 
 
 Jarrett v. Jarrett, 539 
 
 Jarvis v. Aiken, 503 
 
 Jasper v. Hamilton, 248, 349 
 
 Jayne v. Boisgerard, 138 
 
 Jayne v. Brock, 577 
 
 Jefferson v. Curry, 139 
 
 Jeffery v. Underwood, 50 
 
 Jeffries v. Jeffries, 730 
 
 Jendvine v. Alcock, 765 
 
 Jenkins v. Buttrick, 293 
 
 Jenkins v. Fahig, 747, 767 
 
 Jenkins v. Hiles, 763 
 
 Jenkins v. Hopkins, 268, 811, 337 
 
 Jenkins v. Whitehead, 746, 747 
 
 Jenkinson v. Ewing, 454, 616 
 
 Jenks V. Quinn, 93, 863 
 
 Jenks V. Ward, 293, 294 
 
 Jenness v. Parker, 434, 432 
 
 Jenness v. Spraker, 558 
 
 Jennings v. Brizendine, 527, 531 
 
 Jennings v. Jenkins, 78 
 
 Jennings v. Jennings, 79 
 
 Jerald v. Elley, 317 
 
 Jerome v. Scudder, 460, 468. 469, 470 
 
 Jervoiss v. Duke of Northumberland, 
 
 673 
 Jeter v. Glenn, 279, 804, 342, 396, 400, 
 
 452 
 Jett V. Locke, 595 
 Jewell V. Bannon, 429 
 Jewell V. Porter, 494 
 John's Estate, 115 
 Johns V. Prick, 118 
 Johns V. Hardin, 334, 351, 403, 404 
 Johns V. Nixon, 453 
 Johnson's Appeal, 640 
 Johnson t. Burnside, 58f), 593 
 Johnson v. Caldwell, 137 
 Johnson v. Collins, 201, 388 
 Johnson v. Farlow, 495 
 Johnson v. Gk;re, 431, 606, 783 
 Johnson v. Hnthorn, 634 
 Johnson v. Hollensworth, 278, 322 
 Johnson v. Houghton, 773, 809 
 Johnson v. Jarrett, 197 
 Johnson v. Jones, 424, 781, 793 
 Johnson v. Long, 449 
 Johnson v. McGhee, 62 
 Johnson v. Monell. 283 
 Johnson v. Nyce, 294, 344 
 
 Johnson v. Oppenheim, 339 
 
 Johnson v. Pryor, 243 
 
 Johnson v. Purvis, 453 
 
 Johnson v. Robertson, 137 
 
 Johnson v. Smock, 35 
 
 Johnson v. Sandhoff, 138 
 
 Johnson v. SilsflU, 577 
 
 Johnson v. Thweatt, 173 
 
 Johnson v. Tool, 38 
 
 Johnson v. Walton, 281 
 
 Johnson v. Wilson, 784 
 
 Johnson v. Wygant, 205. 306 
 
 Johnston v. Beard, 199, 307, 208 
 
 Johnston v. Haines, 58 
 
 Johnston v. Houghton, 23 
 
 Johnston v. Johnston, 305 
 
 Johnston v. Markle Paper Co., 381 
 
 Johnston v. Mendenball, 33, 150 
 
 Johnston v. Piper, 148, 149 
 
 Johnston v. Powell, 449 
 
 Johnston v. Scott, 53 
 
 Jones v. Bland, 414 
 
 Jones V. Blumenstein, 123 
 
 Jones V. Coffey, 106 
 
 Jones V. Cohen, 632 
 
 Jones V. Cohitsett, 364 
 
 Jones V. Davis, 388, 389 
 
 Jones V. Fulghum, 435, 608 
 
 Jones V. Gardner, 1, 35, 49, 294, 731 
 
 Jones V. Haff, 30, 695 
 
 Jones V. Jones, 402, 412 
 
 Jones V. Keen, 239 
 
 Jones V. King, 494 
 
 Jones V. Manley, 138 
 
 Jones V. Noe, 423 
 
 Jones V. Phillips, 36, 148 
 
 Jones V. Richmond, 342, 364 
 
 Jones V. Robbins, 759 
 
 Jones V. Shackelford, 468 
 
 Jones V Shay, 380 
 
 Jones V. Smith, 137 
 
 Jones V, Stanton, 784 
 
 Jones V. Sweet, 547 
 
 Jones V. Tarver. 48 
 
 Jones V. Taylor, 189, 571, 695, 741, 
 
 755 
 Jones V. Waggoner, 403, 784 
 Jones V. Warner, 259, 263, 268 
 Jones V. Waraock, 109 
 Jones V. Wood, 634 
 Jopling V. Dooley, 773 
 Jordan v. Blackmore, 373 
 .Jordan v. Denton, 457 
 Jordan v. Eve, 398 
 Jordan v. Poillon, 713, 718 
 .Joslyn V. Taylor, 36 
 Josselyn v. Edwards, 251 
 Jourdain v, Jourdain, 330 
 Joyce V. Ryan, 616, 643 
 Judd V. Randall, 278 
 Judice V. Kerr, 133 
 Judson V. Wass, 35, 557, 570, 730 
 Julian V. Beal, 140 
 Junk V. Barnard, 312 
 Juvenal v. Jackson, 638 
 
TABLE OF CASES. 
 
 xliii 
 
 K. 
 
 Kaiser v. Earhart, 494 
 
 Kane v. Fisher, 398 
 
 Kane v. Hood, 205 
 
 Kane v. Eippey, 564 
 
 Kane v. Sanger, 361, 864, 365, 366 
 
 Kans. Pac. R. Co. v. Dunmyer 
 
 343, 386 
 Karker v. Haverly, 203, 728 
 KaufEblt V Leber. 155, 157 
 Kauffman y. Walker, 88 
 Kavanagh v. Kingston, 368 
 Kearney v. Hogan, 730 
 Keating v. Giinther, 194, 774 
 Keating v. Korfhage, 297 
 Keating v. Price, 774, 775, 769 
 Kibler v. Cureton, 453, 574 
 Keeble v. Bank, 762 
 Keeler v. Wood, 379, 396. 401 
 Keep V. Simpson, 763 
 Keepfer v. Force, 541 
 Keifer v. Roger, 241 
 Keim v. Lindley, 22, 461, 463 
 Keith V. Silberberg, 73 
 Keller v. Ashford, 285 
 Kellogg V. Chapman, 530 
 Kellogg V. Ingersoll, 299 
 Kellogg V. Malin, 398, 309, 318 
 Kellogg V. Robinson, 295 
 Kellogg V. Wood, 871, 498 
 Kellum V. Ins. Co., 259. 293 
 Kelly V. Allen, 596 
 Kelly V. Bibb, 466 
 Kelly v. Bradford, 149 
 Kelly V. Brower, 775 
 Kelly V. Calhoun, 61, 63 
 Kelly V. Dutch Church, 337, 841, 
 
 388, 409 
 Kelly V. Jenness, 497 
 Kelly V. Kershaw, 585 
 Kelly V. Lowe, 319, 356, 446 
 Kelly V. Price, 390 
 Kelly V. R. Co., 234 
 Kelly V. Riley, 648 
 Kelly V. Solari, 123 
 Kelly V. Turner, 583 
 Kelly V. Wiseman, 409 
 Kelsey v. Crowther, 166 
 Kelsey v. Remer, 288, 313 
 Kelso V. Lorillard, 734 
 Kemp V. Penna. R. Co., 638 
 Kemp V. Porter, 60 
 Kempner v. Cohn, 213 
 Kempshall v. Stone, 468 
 Kennedy's Appeal, 641 
 Kennedy v. Embry, 451 
 Kennedy v. Granning, 700 
 Kennedy v. Johnson, 348 
 Kennedy v. McCartney, 499 
 Kennedy v. Newman, 377, 393 
 Kennedy v. Price, 64 
 Kennedy v. Woolfolk, 193 
 Kennison v. Taylor, 401 
 Kenniston v. Blakie, 73, 74 
 
 313, 
 
 875, 
 
 Kenny v. Hoffman, 148, 250, 784, 738. 
 
 753 
 Kenny v. Norton, 263 
 Kent V. Allen, 686 
 Kent V. Cantrall, 379, 317 
 Kent V. Chalfant, 156 
 Kent V. Harcourt, 495 
 Kent V. Watson, 516 
 Kent V. Welch, 341 
 Kercheval v. Triplett, 499 
 Kern v. Kloke, 848 
 Kerney v. Gardner, 571 
 Kerr v. Kitchen, 244, 638, 639, 644 
 Kerr v. Purdy, 203 
 Kerr v Shaw, 350, 855 
 Kerst V. Ginder, 203 
 Kester v. Rockel, 766 
 Ketchem v, George, 116 
 Ketchum v, Evertson, 150, 550 
 Ketchum v. Stout, 470 
 Key V. Hanson, 421, 489, 441 
 Key V. Jennings. 425, 770, 786 
 Key V. Key, 226 
 Keyse v, Heydon, 29 
 Keyse v. Powell, 21 
 Keyton v. Bradford, 794 
 Kibler v. Cureton, 782 
 Kidder v. Bork, 344 
 Kilgore v. Pedin, 126 
 Kilpatrick v. Barron, 687, 734 
 Kilpatrick v. Stozier, 544 
 Kimbnll v. Bell, 568, 758 
 Kimball v. Blaisdell, 507 
 Kimball v. Bryant, 265, 892 
 Kimball v. Grand Lodge, 337, 888 
 Kimball v. Johnsqji, 58 
 Kimball v. Saguiu, 354, 654 
 Kimball v. Schaff, 498 
 Kimball v. Bemple, 59, 63, 322, 338, 519 
 Kimball v. West, 431, 510, 602, 608 
 Kimball v. Tooke, 674 
 Kimbrough v. Burton, 122 
 Kime v. Kime, 200 
 Kimmel v. Benna, 517 
 Kimmel v. Scott. 771 
 Kiefer v, Roger, 282, 344, 248 
 Kien v. Stukely, 754 
 Kincaid v. Brittain, 254, 355 358, 270 
 Kindley v. Gray, 746 
 King V. Doolittle, 818 
 King V. Gilson, 210, 512, 555 
 King V. Gunnison, 109, 641 
 King V. Jones, 257, 416 
 King V. Kerr, 811, 324, 354, 366, 367. 
 
 373, 391, 398, 408, 409 
 King V. Kilbride, 285, 350 
 King V. King, 189 
 King V. Knapp, 25, 238, 696, 775 
 King V. Pyle, 224 
 King V. Rea, 514 
 King V. Savery, 187 
 King V. Thompson, 668 
 King V. Wilson, 769 
 Kingdon v. Nottle, 257, 264, 864 
 Kingsbury v. Milner, 783, 790 
 
xliv 
 
 TABLE OF CASES. 
 
 Kingsbury v. Smith, 399 
 
 Kingsbury v, Stoltz, 127 
 
 Kingston Bank v. Ettinge, 122 
 
 Kinports v. Eawson, 794, 796 
 
 Kinney v. McCuIlocli, 355 
 
 Kinney v. Knoebel, 136 
 
 Kinney v. Norton, 855 
 
 Kinney v. Watts, 373, 388 
 
 Kinsman v. Loomis, 502, 517 
 
 Kintrea v. Preston, 22 
 
 Kip V. Hirsli, 719, 739 
 
 Kirby v. Estill, 351, 403 
 
 Kirk V. Zell, 529, 540 
 
 Kirkendall v. Mitchell, 145, 322 
 
 Kirkland v. Little, 205, 691, 692 
 
 Kirkland v. Wade, 110, 6S2 
 
 Kirkwood v. Lloyd, 700 
 
 Kirtland v. Pounsett, 188, 219 
 
 Kirtz Y. Peck, 602 
 
 Kirkpatrick v. Downing, 213. 228, 668 
 
 Kirkpatrick v. Pearce, 292, 317 
 
 Kirkpatrick v. Miller, 355 
 
 Kley V. Geiger, 288 
 
 Klopp V. Moore, 156, 157 
 
 Klumpki V. Baker, 493 
 
 Knadler v. Sharp, 264, 312 
 
 Knapp V. Lee, 36, 424, 439, 577 
 
 Knapp V. Marlboro, 410 
 
 Knatchbull v. Grueber, 187, 192, 659, 
 
 776 
 Knedler v. Lang, 703, 704 
 Knepper v. Kurtz, 350 
 Knight V. Crockford, 201 
 Knight V. Tliayer, 503, 514 
 Knight V. Turner, 421 
 Knipe v. Palmer, 154, 156 
 Knowles v. Kennedy, 510 
 Knowlton v. Amy, 287 
 Koger V. Kane, 438, 445, 779, 794, 795 
 Kohner v. Higgins, 39 
 Kolher v. Kolher, 82 
 Koruegay v. Everett, 532, 813 
 Kortz V. Carpenter, 345 
 Kostenbader v. Spotts, 69 
 Kostendader v. Pierce, 298, 314 
 KouDtze V. Hellmuth, 190, 730 
 Kraemerv. Adelsberger, 685 
 Kramer v. Ricke, 625 
 Kramer v. Carter, 354, 356, 358, 359 
 Krewson v. Cloud, 2i7 
 Kruger v. Adams, 38 
 Krumm v. Beach, 13, 323, 333, 236 
 Kuchenbeiser v. Beckert, 107 
 Kuhn V. Freeman, 340, 771 
 Kuhn's Appeal, 636 
 Kurtz V. Hollingshed, 44 
 Kutz V. MoCune, 296, 298, 300 
 Kyle V. Fauntleroy, 394, 396, 399 
 Kyle V. Kavanaugh, 150, 809 
 Kyle V. Febley, 283, 813 
 
 L. 
 
 Laoey v. Marman, 373 
 Lacey v. McMillan, 191 
 
 Ladd V. Blunt, 140 
 
 Ladd V. Noyes, 262, 395 
 
 Ladd V. Myers, 285 
 
 Ladue, In re, 724 
 
 Lafarge v. Matthews, 422, 591 
 
 Lafferty v. Milligan, 289 
 
 Laidlf.w V. Organ, 237 
 
 Lake v. Brutton, 240 
 
 Lake Erie, etc. , R. Co. v. Whitham, 69 
 
 Lallande v. West, 298 
 
 Lally v. Holland, 544 
 
 Lamerson v. Marvin, 425 
 
 Lamb v. Baker, 344 
 
 Lamb v. Burbank, 417 
 
 Lamb v. Danforth, 258, 336, 359 
 
 Lamb v. James, 386, 577, 623 
 
 Lamb v. Kann, 519 
 
 Lamb v. Smith, 647 
 
 Lamb v. Wakefield, 329, 518 
 
 Lambden v. Sharp, 55 
 
 Lambert v. Estes, 848, 352, 374 
 
 Lamerson v. Marvin, 440 
 
 Lamkin v. Reese, 81, 114, 527, 809 
 
 Lammot v. Bowley, 813 
 
 Lampton v. Usher, 114, 577 
 
 Lancaster v. Wilson, 89, 105, 106 
 
 Lancoure v. Dupre, 224, 668, 669 
 
 Land Co. v. Hill, 602,785 
 
 Landford v. Dunkton, 115 
 
 Landsdowne v. Landsdowne, 813, 816, 
 
 818 
 Landt v. Ma.yor, 274 
 Lane v. Bommelman, 93 
 Lane v. Fury, 353, 357, 401 
 Lane v. Latimer, 661 
 Lane v. Patrick, 633 
 Lane v. Richardson, 287 807 
 Lane v. Tidball, 438, 797 
 Lane v. Woodruff, 367 
 Lang V. Waring, 118 
 Lange v. Jones, 468, 794 
 Langford v. Pitt, 746 
 Langford v. Selmes, 21 
 Langlowv. Cox, 165 
 Langsdale v. Nicklaus, 291 
 Langton v. Marshall, 65 
 Lanier v. Foust, 451 
 Lanier v. Hill, 343, 251, 575, 800, 819 
 Lanigan v. Kille, 387, 388 
 Lanitz v. King. 190 
 Lansing v. Quackenbush, 123 
 Lansing v. Van Alstvne, 348, 353 
 Lant V. Norris, 322 " 
 Large v. McLain, 279 
 Latham v. Morgan, 787 
 Lathers v. Keogh, 291 
 Latimer v. Wharton, 84 
 Lattin v. Vail, 435 
 Lauer v. Lee, 549, 552 
 Laughman v. Thompson, 102, 113 
 Laughery v. McLean, 422, 454 
 Laurens v. Lucas, 674 
 Laurenson v. Butler, 470, 477 
 Lavender v. Lee, 537 
 Laverty v. Moore, 696 
 
TABLE OF CASES. 
 
 xlv 
 
 Law V. Grant, 235 
 
 Law V. Hide, 543 
 
 Lawless v. Collier, 364, 373, 885, 394, 
 
 603, 611 
 Lawless v. Evans, 273 
 Lawless v. Mansfield, 481 
 Lawrence v. Beaubein, 815, 816 
 Lawrence v. Chase, 313 
 Lawrence v. Dale, 14, 86, 193 
 Lawrence v. Montgomery, 304 
 Lawrence v. Parker, 47 
 Lawrence v. Siraonlon, 206 
 Lawrence v. Sinter, 863, 365 
 Lawrence v. Taj'lor, 36, 201, 565 
 Lawton v. Howe, 385, 805 
 Leach v. Forney 472 
 Leach v. Johnson, 185 
 Leach v. Leach, 731 
 Leahy v. Hair, 677 
 Leal V. Terbush, 424, 440, 441 
 Leary v. Durham, 146, 836, 351, 422 
 Learned v. Riley, 62 
 Leather v. Poulteny, 106, 408, 410 
 Lebanon Sav. Bank v. Hollenbeck, 545 
 Leddy v. Enos, 379, 357 
 Lee V. Clary, 494 
 Lee V. Dean, 319, 224, 636, 654 
 Lee V. Foard, 35 
 Lee V. Gardiner, 138 
 Lse V. Lee, 713, 734 
 Lee V. Porter, 483 
 Lee V. Russell, 210 
 Lefflngwell v. Elliott, 854, 885, 401 
 Lefflngwell v. Marrin, 700 
 Leftwich v. Neal, 67 
 Leggett V. McCarty, 436, 607, 784 
 Leggett V. Mut. Ins. Co., 280 
 Leird v. Abernethy, 779, 784 
 Lejeune v. Barrow, 393 
 Lejeune v. Herbert, 650 
 Leland v. Stone, 282. 878 
 Lemon v. Rogge, 724 
 Le Moyne v. Quimby, 113 
 Leonard v. Austin, 438, 446 
 Leonard v. Bates, 145, 305 
 Leonard v. Mills, 587 
 Leonard v. Pitney, 638, 653 
 Le Roy v. Beard, 154 
 Lesesne v. Witte, 745 
 Leslie v. Slusher, 43 
 Lesley v. Morris, 678, 730, 763 
 Lessley v. Bowie, 451, 452, 454 
 Lstcher v. "Woodson, 312 
 Lethbridge v. Kirkman, 38, 689 
 Lethbridge v. Mytton, 279 
 Lett V. Brown, 584, 591 
 Levitzky v. Canning, 838, 400 
 Levy V. Bond, 339 
 Levy V. Iroquois Bldg. Co., 708 
 Levy V. Newman, 716 
 Levy V. Riley, 113, 188 
 Lewis V. Baird, 493 
 L3wis V. Bibb, 275 
 Lewis V. Bond, 30 
 Lewis V. Boskins, 481 
 
 Lewis V. Braithwaite, 21 
 
 Lewis V. Cook, 362, 364 
 
 Lewis V. Coxe, 726, 731 
 
 Lewis v. Davis, 421 
 
 Lewis V. Day, 38 
 
 Lewis V. Gale, 464 
 
 Lewis V. Herndon, 701 
 
 Lewis V. Jones, 349 
 
 Lewis V. Lee, 313 
 
 Lewis V. Lewis, 844, 543 
 
 Lewis V. McMillen. 441, 553, 563, 578, 
 
 585, 595 
 Lewis V. Morton, 428, 607, 614 
 Lewis V. Ridge, 362 
 Lewis V. West, 428 
 Lewis V. White, 18, 89, 551, 561, 657 
 Ley V. Huber, 754 
 Liber v. Parsons, 380 
 Liddell v. Sims, 658 
 Life Association v. Siddall, 186 
 Lighty v. Shorb, 637, 639 
 Lillard v. Ruckers, 45 
 Linderman v. Berg, 404 
 Lindley v. Dakin, 359, 293 
 Lindley v. Lukin, 223 
 Lindsay v. Eastwood, 290 
 Linkous v. Cooper, 716 
 Linn v. Barkey, 145 
 Linn v. McLean, 695. 764 
 Linsey v. Ferguson, 591 
 Liuaey v. Ramsey, 494 
 Linton v. Allen, 35, 285, 497, 579 
 Linton v. Hichhorn, 733 
 Linton v. Porter, 113 
 Lister v. Batson, 213 
 Little V. Allen, 331, 808 
 Little V. Dodge, 67 
 Littlefleld v. Getchell, 862 
 Little V. Paddleford, 85, 565 
 Littlefleld v. Tinsley, 189, 571, 665, 670,. 
 
 695, 718 
 Lively v. Rice, 285 
 Livingston v. Iron Works, 258 
 Livingston v. McDonald, 59 
 Livingston v. Short, 792 
 Lloyd V. Farrell, 150, 634, 651 
 Lloyd V. Griffiths, 147 
 Lloyd V. Jewell, 86, 439 
 Lloyd V. Kirkwood, 107 
 Lloyd V. Quimby, 152, 287, 306, 367,. 
 
 380, 386 
 Locke V. Furze, 211, 387 
 Locke V. White, 517, 519 
 Lockhart v. Smith, 687 
 Lockman v. Reilly, 688, 718 
 Lockridge v. Foster, 193, 238, 652 
 Lockwood v. Gilson, 155, 157 
 Lockwood V. Hannibal & St. J. R. Co., 
 
 306, 763 
 Lockwood V. Sturtevant, 153, 355, 357, 
 
 263, 367 
 Logan V. Bull, 706, 754 
 Logan V. Moore, 494, 495 
 Logan V. Neill, 494 
 Logan V. Steele, 494 
 
xlvi 
 
 TABLE OF CASES. 
 
 Logansport v. Case, 133 
 
 London Bridge Acts, 154 
 
 Long V. Bi-owD, 527, 809 
 
 Long V. Crews, 58, 63 
 
 Long V. Hartwell, 610 
 
 Long V. Howard, 403 
 
 Long V. Israel, 445, 608, 794 
 
 Long V. Miller, 460 
 
 LoQg V. Moler, 281, 387, 288, 290 
 
 Long V, Saunders, 584 
 
 Long V. Waring, 80 
 
 Long V. Weller, 78 
 
 Longworth v. Taylor, 677 
 
 Loomis V. Bedell, 329, 348, 352, 353, 385, 
 
 401 
 Loomis V. Pingree, 517, 522 
 Loomis V. Wadhams, 318 
 Loos, In re, 130 
 Lord V. Stephens, 691 
 Lot V. Thomas, 255, 358, 262, 498 
 Lothrop V. Snell, 341, 434 
 London v. Robertson, 110 
 Lougher v. Williams, 336 
 Loiighran v. Ross, 359 
 Louisville, etc., R. Co. v. Stone Co., 
 
 659 
 Lounsbery v. Locander, 35, 146, 468, 
 
 470 
 Lounsbery v. Snyder, 339 
 Lourance v. Robertson, 373, 375, 385 
 Love V. Berry, 113 
 Love V, Camp, 458, 475 
 Love V. Cobb, 458 
 Love V. Powell, 137 
 Lovelace v. Harrington, 789 
 Lovett V. Saw Mill Assn., 61 
 Lovingston v. Short, 607, 663 
 Lowdermilk v. Corpenning, 130 
 Lowe V. Allen, 544 
 Lowe V. Lush, 67.5, 679, 694 
 Lowell V. Daniels, 513 
 Lowndes v. Chamberlain, 814, 815, 816 
 Lowery v. Nicols, 758 
 Lowrey v. Tiileny, 257, 262, 265 
 Lowry v. Brown, 620 
 Lowry v. Cox, 221 
 Lowry v. Hurd, 603 
 Lowry v. Muldrow, 724 
 Lowther v. Corn, 373 
 Loyd V. Malone, 106 
 Lucas V. Chapeze, 576 
 Lucas V. Scott, 473, 475 
 Lucas V. Wilcox, 389 
 Luckett V. Triplett, 783, 793 
 Luckett V. Williamson, 35, 468, 704 
 
 746, 766 
 Luckie v. McGlasson, 847, 251 
 Lucy V. Lexington, 356, 262 
 Ludlow V. Gilraan, 435 
 Ludlow V. O'Neil. 723 
 Ludlow V. Van Ness, 737 
 Ludwell V. Newman, 345 
 Ludwick V. Huntzinger, 634, 635, 637 
 Lukens v. Jones, 638 
 Lukens v. Nicolson, 411 
 
 Lull V. Stone, 34, 36, 38 
 
 Lunsford v. Turner, 355 
 
 Lurmau v. Hubner, 700 
 
 Luse V. Dietz, 754, 755 
 
 Lutweller v. Linnell, 307 
 
 Lutz V. Compton, 761 
 
 Lydall v. Weston, 168, 673, 679 
 
 Lyle V. Earl of Yarborough, 763 
 
 Lyles V. Kirkpatrick, 700, 745, 758 
 
 Lyman v. Q-edney, 707 
 
 Lyman v. Stroudburgh, 697 
 
 Lynch v. Baxter, 109, 117, 663 
 
 Lynch, Ex parte, 400 
 
 Lynch v. Livingston, 58 
 
 Lynch v. Merc. Trust Co., 13 
 
 Lyon v. Anable, 648 
 
 Lyon V. Day, 567 
 
 Lyon v. Karn, 46 
 
 Lyon V. McCurdy, 115 
 
 Lyon V. O'Kell, 567 
 
 Lyon V. Richmond, 812, 819 
 
 Lyons v. Pyatt, 549 
 
 Lysney v. Selby, 653 
 
 M. 
 
 Mabie v. Matteson, 155 
 
 Mack V. Patohiu, 309, 212, 887 
 
 Mackey v. Ames, 476, 749, 759, 760 
 
 Mackey v. CoUins, 343, 453 
 
 Mackey v. Harmon, 397, 318 
 
 Madden v. Leak, 798 
 
 Madely v. Booth, 28 
 
 Maeder v. Carondelet, 831, 411 
 
 Magaw V. Lathrop, 189 
 
 Magee v. Hallett, 515 
 
 Magee v. McMillan, 303, 596, 784, 793 
 
 Maginess v. Fallon, 193, 681, 700 
 
 Maguire v. Marks, 134, 140 
 
 Maguire v. Riggin, 364 
 
 Mahony v. Robbins, 423 
 
 Main, Sir Anthony's Case, 302 
 
 Major V. Dunnavant, 890 
 
 Majors v. Brush, 573, 616, 643 
 
 Malins v. Freeman, 31 
 
 Manahan v. Smith, 379 
 
 Maner v. Washington, 453, 608 643 
 
 Maney v. Porter, 348 
 
 Manitee v. Morrison, 156 
 
 Maun V. Matthews, 403, 405 
 
 Mann v. Young, 494 
 
 Manser v. Buck, 38, 31 
 
 Marbury v. Thornton, 343 
 
 Mardes v. Myers, 46 
 
 Margraf v. Muir, 337, 464 
 
 Maris v. lies, 383 
 
 Markland v. Crump, 365 
 
 Markley v. Swartzlander, 78 
 
 Marhn v. Willink, 587 
 
 Marple v. Scott, 292 
 
 Marsh v. Fish, 279 
 
 Marsh v. Sheriff, 251, 510 
 
 Marsh v. Thompson, 433 
 
 Marsh v. Wyckoff, 747 
 
 Marshall v. Oilman, 194 
 
TABLE OF OASES. 
 
 xh 
 
 Marshall v. Caldwell, 468 
 
 Marshall v. Haney, 213 
 
 Marshall v. Hopkins, 442 
 
 Marston v. Bradshaw, 69 
 
 Marston v. Hohbs, 355, 361, 269, 274, 
 
 277, 316 
 Martin v. Anderson, 668 
 Martin v. Atkinson, 323, 356, 483 
 Martin v. Baker, 364 
 Martin v. Chambers, 584 
 Martin v. Colby, 41, 473 
 Martin v. Cotter, 679, 700 
 Martin v. Cowes, 403 
 Martin v. Dollar, 541 
 Martin v. Donelly, 66, 514, 547, 632 
 Martin v. Foreman, 447 
 Martin v. Gordon, 369, 383 
 Martin v. Hammon, 274 
 Martin v. Long, 370, 373 
 Martin v. Martin, 343 
 Martin v. McCormick, 803, 804 
 Martin v. Merritt, 227, 472 
 Martin v. Nixon, 534, 544 
 Martin v. Porter, 714, 717 
 Martin v. Wharton, 433 
 Marvin v. Applegate, 602. 661 
 Marvin v. Bennett, 808 
 Mason v. Bovet, 14 
 Mason y. Brimfield Mfg. Co., 777 
 Mason v. Brock, 66, 69, 70 
 Mason y. Caldwell, 156 
 Mason v. Cooksey, 348, 413 
 Mason v. Ham, 157 i 
 
 Mason y. Kellogg, 351, 407 ' 
 Mason y. Lawing, 669 
 Mason v. Moulder, 546 
 Mason v. Swan, 669 
 Mason y. Wait, 112 
 Massey, Succession of, 117 
 Massie v. Craine, 259 
 Massie y. Sebastian, 514, 793 
 Masson y. Borst, 193, 662, 664 
 Mastin y. Halley, 74, 534 
 Mathews y. Stewart, 396, 397, 401 
 Mather y. Corliss, 325 
 Mather v. Leman, 715 
 Mather y. Tremty, 347 
 Mather y. Henderson, 661 
 Matteson v. Vaughn, 348, 352, 369, 605 
 Mattock y. Kinglake, 199 
 Matthison v. Wilson, 203 
 Maule y. Ashmead, 340 
 Mawson y. Fletcher, 467, 478 
 Maxfield v. Bierbauer, 337, 571 
 May v. Adams, 541 
 May y. Arnold, 504 
 May y. Furniss, 783 
 May y. Ivie, 450 
 May y. McKeenon, 59 
 May V. Wright, 373 
 Mayer v. Adrian, 195 
 Mayes v. Blanton, 557 
 Maynard v. Moseley, 616 
 Mayo V. Babcock, 316 
 Mayo v. Purcell, 194 
 
 Mayor v. Baggatt, 331 
 
 Mayor v. Bulkley, 54 
 
 Mayor v. Mabie, 330, 331, 338, 339, 358 
 
 Mays y. Swope, 761 
 
 MoAleer v. MoMullen, 546 
 
 McAlpin y. Woodruff, 373, 381, 388, 400 
 
 McAninch y. Laughlin, 813 
 
 Mc Arthur y. Oliver, 523 
 
 McBride v. Greenwood, 516 
 
 McCabe y. Henry, 703 
 
 McCabill y. Hamilton, 702, 712, 739 
 
 McCann y. Edwards, 701, 714, 720, 757, 
 
 761 
 McCartney y. King, 80, 123 
 McCarty y. Leggett, 261, 263, 308, 510 
 McOasland v. Life Ins. Co., 533, 541 
 McCasky v. Graff, 141 
 McCauley v. Moore, 188 
 McClennan v. Prentice, 374, 603, 609 
 MoClerkin v. Sutton, 272 
 McClure v. Campbell, 281, 290 
 McClure v. Gamble, 361, 373 
 McClure y. McClure, 268, 373 
 McClure y. Raben, 519 
 McComb V. Wright, 707, 763, 765 
 McConihe v. Fales, 606 
 McConnell v. Downs, 354, 415 
 McConnell y. Dunlop, 234, 468 
 McConnell v. Little, 431 
 McConnell v. Smith, 109 
 McCool y. .Jacobus, 36, 569 
 McCord y. Massey, 484 
 McCorkle v. Rhea, 115 
 McCoy v. Bayley, 535 
 McCoy V. Lord, 356 
 McCracken y. Flanagan, 95 
 McCracken y. San Francisco, 187, 597, 
 
 598 
 McCracken v. Wright, 516 
 MoCrady v. Brisbane, 264 
 McCraven v. McGuire, 60, 69 
 McCroskey v. Ladd, 166, 603, 703 
 McCulloch y. Gregory, 681 
 McCullogh y. Boyd, 579 
 McCullogh y. Estis, 91 
 McCoUough y. Cox, 441 
 McCusker y. McEvoy, 503 
 McDaniel y. Bryan, 602 
 MoDaniel v. Evans, 183 
 McDaniel y. Grace, 431, 439, 441, 444 
 McDaniels y. Flower Brook Mfg. Co., 
 
 49, 61 
 McDermott y. McDermott, 706, 737 
 McDill y. Gunn, 283 
 McDonald v. Beall, 232, 617 
 McDonald y. Green, 424, 607, 793 
 McDonald v. Hanson, 13 i 
 McDonald y. Morgan, 46 
 McDonald y. Vaughan, 424, 661 
 McDonnell v. MilhoUand. 532 
 McDonough y. Cross, 137 
 McDonough y. Martin, 330 
 McDowell y. Hunter, 350 
 McDowell V. McKesson, 193, 549 ' 
 McDowell y. Milroy, 309, 448 
 
xlviii 
 
 TABLE OF CASES. 
 
 McDunn v. Des Moines, 602, 786 
 McFadden v. Rogers, 542 
 McFerran v. Taylor, 464 
 McGary v. Hastings, 343, 348, 353, 354, 
 
 357, 385 
 McGavock v. Bell, 79 
 McGarrahan v. Mining Co., 173 
 McGee v. Carrico, 664 
 MoGee v. Wallis, 138 
 McGhee v. Ellis, 126, 140 
 McGhee v. Jones, 432, 573, 606. 784 
 McGinnis v. Noble, 485, 487, 635 
 MoGlynn v. Maynz, 730 
 McGoodwin v. Stephenson, 367 
 McGoon V. Scales, 90 
 McGowan v. Bailey, 638 
 McGowan v. Meyers, 396, 301 
 McGown V. Wilkins, 83, 88 
 McGrane v. Kennedy, 678 
 McGrew v. Harmon, 392 
 MoGuckin v. Milbank. 307 
 McGufEey v. Humes, 373, 377, 394, 396 
 McGuire v. Bowman, 701 
 McGuire v. Ely, 137 
 McHany v. Schenck, 137 
 McHenry v. Yokum, 441, 443 
 Mclndoe v. Morraau, 593, 665, 745 
 Molnerny v. Beck, 45 
 Mclunis V. Lyman, 337, 347, 507, 509 
 Mcintosh V. Smith, 123 
 Mclntyre v. Long, 617 
 Mclverv. Walker, 53 
 McKay v. Carrington, 664, 746, 747, 
 
 753 
 McKee v. Bain, 385, 396, 400, 401 
 McKee v. Brandon, 318 
 McKeen v. Beaupland, 589, 662 
 McKennan v. Doughman, 281, 288 
 McKenry T. Settles, 50 
 McKinney v, Jones, 747 
 MoKinney v. Watts, 323, 773 
 McKinzie V. Stafford, 61 
 McKleroy v. Tulare, 145 
 McCoy V. Chiles, 577 
 McLain v. Coulter, 486 
 McLarin v. Irviu, 593, 666, 703 
 McLaughlin v. Daniel, 487 
 McLaughlin v. MoDaniel, 140 
 McLaughlin v. Miller, 291 
 McLauriu v. McLaurin, 106 
 McLaurin v. Parker, 574 
 McLean v. Webster, 356 
 McLeery v. McLeery, 533 
 McLemore v. Mabson, 343, 421, 596 
 
 789, 793 
 McLennan v. Prentice, 273, 510, 800 
 McLeod V. Skiles, 281 
 McLeod V. Snyder, 205 
 McLogan v. Brown, 137 
 McLowry v. Croghan., 213, 331 
 McMahoa t. Stewart, 383 
 McManus v. Blackmar, 37, 38 
 MoManus v. Cook, 665 
 McManus v. Keith, 80 
 McMath V. Johnson, 580 
 
 McMillan v. Reeves, 117 
 
 McMullin V. Wooley, 295, 359 
 
 McMurray v. Fletcher, 46 
 
 McMurray v. Spicer, 193, 760 
 
 McMurray v. St. Louis Oil Co., 813 
 
 McNair v. Compton, 213 
 
 McNally v. Haynes, 116 
 
 McNamara v. Arthur, 19 
 
 McNJimara v. Pengilly, 200 
 
 McNeal v. Calkins, 618 
 
 McNear v. McOomber, 329, 393 
 
 McNew V. Walker, 426 
 
 McPherson v. Schade, 775 
 
 McPherson v. Smith, 682, 699 
 
 McQueen v. Choteau, 464 
 
 McQueen v. Farquhar, 681, 769 
 
 McQueen v. State Bank, 582 
 
 McRea v. Purmort, 383 
 
 McTucker v. Taggart, 539 
 
 McWhirter v. SwafEer, 436, 510, 609 
 
 Mc Williams v. Jenkins, 594 
 
 McWilliams v. Long, 204 
 
 Mc Williams v. Nisley, 484, 494 
 
 Mead v. Altgeld, 677, 718, 731 
 
 Mead v. Pox, 35, 166, 193 
 
 Mead v. Johnson, 150, 155, 803 
 
 Mead v. Stackpole, 345 
 
 Meadows v. Hopkins, 481 
 
 Meadows v. Meadows, 115 
 
 Means v. Brickell, 83, 454 
 
 Measou v. Kaine, 210, 334 
 
 Mich. Sav. & B. L. Assn. v. O'Connor, 
 
 79 
 Mecklem v. Blake, 264. 375, 603 
 Medina v. Stoughton, 618 
 Medlar v. Hiatt, 396, 301, 311 
 Medlicot v. O'Donel, 190 
 Meek v. Sprachn, 800 
 Meeks v. Bowerman, 837 
 Meeks v. Garner, 234, 693, 753 
 Mellen v. Boarman, 113, 125, 155 
 Mellon V. Webster, 39 
 Mellon's Appeal, 485, 487, 635 
 Melton V. Coffelt, 304 
 Melton V. Smith, 463 
 Menard v. Massey, 515 
 Menifee v. Marye, 96, 99, 483 
 Memmert v. McKeen, 356, 300, 301 
 Merc. Trust Co. v. So. Park Res, Co., 
 
 96, 354, 355, 370, 397, 400, 403 
 Merchants' Bank v. Harrison, 59 
 Merchants' Bank v. Thompson, 734, 753 
 Merriam v. Rauen, 133 
 Merrill v. Merrill, 203 
 Merrill v. Montgomery, 61 
 Merriman v. Norman, 237, 784 
 Merritt v. Gonley, 603 
 Merritt v. Harris, 516 
 Merritt v. Hunt, 155, 615, 791 
 Merritt v. Morse, 401, 404 
 Merritt v. Yates, 73 
 Mervin v. Vanlier, 87, 118 
 Mervin v. Smith, 107 
 Meservy v. Snell, 400 
 Messer v. Oestrich, 359, 333, 389, 393 
 
TABLE OF CASES. 
 
 xlix 
 
 Mesick v. Sunderlaud, 170 
 
 Metcalf V. Dallam, 760 
 
 M. E. Church Home v. Thompson, 684, 
 
 685 
 Methvin v. Bixley, 118, 119 
 Mette V. Dow, 382, 394, 396 
 Meyer v. Boyd, 700, 733 
 Mhoon V. Wilkinson, 307 
 Michael v. Michael, 537 
 Michael v. Mills, 602 
 Michel V. Tinsley, 534, 538 
 Mickel V. Hicks, 116 
 Middlebury College v. Cheney, 503, 
 
 510 
 MiddlekaufE v. Barick, 434, 607, 617, 
 
 805 
 Middlemore v. Qoodale, 363 
 Middleton v. Findla, 46, 731 
 Middleton v. Selby, 763, 764 
 Middleton v. Thompson, 403, 404, 408 
 Midgett V. Brooks, 321, 323 
 Mid Great West. R. Co. v. Johnson, 
 
 818 
 Miesell v. Ins. Co., 693 
 Milkman v. Ordway, 465 
 Miller v. Argyle, 438, 797 
 Miller v. Duncan, 133 
 Miller v. Avery, 351, 435, 429, 606, 784, 
 
 793 
 Miller v, Ewing, 333, 523 
 Miller v. Feezor, 87 
 Miller v. Finn, 118 
 Miller v. Fraley, 630 
 Miller v. Halsey, 386 
 Miller v. Lamar, 434 
 Miller v. Long, 433, 573, 607 
 Miller v. Macomb, 694, 724 
 Miller v. Miller, 785 
 Miller v. Owens, 573, 793 
 Miller v. Parsons, 418 
 Miller v. Rhuman, 539 
 Miller v. Watson, 643 
 Milligan v. Cooke, 777 
 Millinger v. Daly, 73 
 Million Y. Riley, 131 
 Mills V. Abraham, 435 
 Mills V. Bell, 373, 380 
 Mills V. Catlin, 254, 394, 315, 316 
 Mills V. Herndon, 117 
 Mills V. Lockwood, 540 
 Mills V. Rice, 413 
 Mills V. Saunders, 435, 447 
 Mills V. Seminary, 543 
 Mills V. Traylor, 449 
 Mills V. Van Voorhis, 194 
 Miles V. Furnace Co., 464 
 Milot V. Reed, 278, 388 
 Milward v. Earl of Thanet, 758 
 Miner v. Beekman, 188 
 Miner v. Clark, 407 
 Minor v. Edwards, 189 
 Minor v. Katchez, 137 
 Mischke v. Baughn, 383, 893 
 Missouri Schnelle Lumber Co. v. Bar- 
 low, 356 
 
 Missouri Val. Land Co. v. Buahnell, 725 
 
 Mitchell V. Allen, 747 
 
 Mitchell V. Barry, 481 
 
 Mitchell V. Christopher, 617 
 
 Mitchell V. De Roche, 587 
 
 Mitchell V. Dibble, 447 
 
 Mitchell V. Hazen, 155, 370, 380, 395 
 
 Mitchell V. Kintzer, 105 
 
 Mitchell V. Mullen, 434 
 
 Mitchell V. McMullen, 111, 784 
 
 Mitchell V. Mitchell, 547 
 
 Mitchell V. Pinokney, 78, 83, 87, 157, 
 
 188 
 Mitchell V. Petty, 494 
 Mitchell V. Pillsbury, 288, 292, 316 
 Mitchell V. Sherman, 577 
 Mitchell V. Stanley, 313 
 Mitchell V. Strinemitz, 673, 676 
 Mitchell V. Vaughan, 343 
 Mitchell V. Warner, 263, 396, 324, 360 
 Mitchell V. Woodson, 460, 517 
 Mitchell V. Zimmerman, 650 
 Mitchener v. Holmes, 717, 723 
 Mix V. Beach, 461 
 Moak V. Bryant, 73, 74 
 Moak V. Johnson, 388, 389 
 Mobile Co. v. Kimball. 465 
 Mobley v. Keys, 35, 559. 573 
 Moggridge v. Jones, 433, 440, 578 
 Mohr V. Maniere, 117 
 Mohr V. Parmelee, 396, 311, 314, 389 
 Mohr V. Tulip, 117 
 Moliter v. Sheldon, 358 
 Molloy V. Egan. 759 
 MoUoy V. Sterne, 28, 689 
 Monagan v. Smr.ll, 674, 733 
 Monarque v. Monarque, 716 
 Monell V. Colden, 638, 654 
 Monell V. Donglan, 386 
 Monroe v. Skelton, 536 
 Monson v. Stevens, 305, 741 
 Monson v. Stevenson, 580 
 Monte V. Allegre, The, 118 
 Montgomery v. North Pac. R. Co., 
 
 384, 386 
 Montgomery v. Pac. L. Co. Bureau, 
 
 676, 677 
 Montgomery v. Reed, 358, 270, 375, 376 
 Moody v. Leavitt, 401 
 Moody v. Spokane R. Co. , 36 
 Mooney v. Burchard, 354 
 Moore v. Allen, 135, 140 
 Moore v. Appleby, 38, 674, 686, 718 
 Moore v. Buckham, 73 
 Moore v. Cooke, 577, 787 
 Moore v. Ellsworth, 440, 781 
 Moore v. Frankenlield, 383 
 Moore v. Hazelwood, 811 
 Moore v. Hill, 574 
 Moore v. Hunter, 173 
 Moore v. Johnston, 359, 836 
 Moore v. Lanham, 343 
 Moore v. McKie, 383 
 Moore v. Merrill, 262, 369 
 Moore v. Munn, 530, 538 
 
1 
 
 TABLE OF CASES. 
 
 Moore v. Neil, 109 
 
 Moore v. Rake, 494, 503 
 
 Moore v. Taylor, 728 
 
 Moore v. Vance, 59 
 
 Moore v. Vail, 341, 345, 347, 348, 351, 
 
 353 
 Moore v. Weber, 839, 415 
 Moore v. Williams, 675, 683, 684, 693, 
 
 698, 733 
 Moore v. Win gate, 534 
 Morange v. Morris, 15, 36, 203, 743, 
 
 759 
 More V. Smedburgh, 188, 185, 585, 662, 
 
 741, 748 
 Moredock v. Williams, 577 
 Morehouse v. Heath, 283 
 Moreland v. Atchinson, 238, 650, 803, 
 
 818, 819 
 Moreland v. Metz, 314, 315, 373, 393 
 Morenhout v. Barron. 468 
 Morgan's Appeal, 116 
 Morgan v. Boone, 481 
 Morgan v. Bouse, 120 
 Morgan v. Brast, 774 
 Morgan v. Farned, 115 
 Morgan v. Han. & St. J. K. Co., 348, 
 
 351 357 
 Morgan' V. Morgan, 468, 659, 683, 687 
 Morgan v. Muldoon, 403 
 Morgan v. Eamsey, 139 
 Morgan v. Scott, 739, 744, 747 
 Morgan v. Shaw, 765 
 Morgan v. Smith, 34, 78, 295, 301, 316, 
 
 446 
 Morgan v. Stearns, 73 
 Morley v. Cook, 25 
 Morris v. Balkham, 139 
 Morris v. Coleman, 753 
 Morris V. Gentry, 106 
 Morris v. Goodwin, 742 
 Morris v. Ham, 431 
 Morris v. Kearsley, 38 
 Morris V. McMullen, 701, 708, 798 
 Morris v. McNuU, 745 
 Morris v. Mowatt, 88, 695 
 Morris V. Phelps, 359, 389, 390, 391, 510 
 MoiTis V. Rowan, 394, 396, 400 
 Morris V. Terrell, 173 
 Morris v. Whitcher, 430 
 Morrison v. Arnold, 681 
 Morrison v. Beckwith, 784, 787, 793 
 Morrison v. Collier, 538, 537 
 Morrison v. Caldwell, 619 
 Morrison v. Faulkner, 74 
 Morrison v. Lods, 384 
 Morrison v. Mo Arthur, 257 
 Morrison v. Morrison, 338 
 Morrison v. Underwood, 510 
 Morrison v. Wilson, 832, 517 
 Morrow v. Rees, 591, 593, 647 
 Morrow v, Wessell, 83 
 Morse v. Elmendorf, 463, 468, 808 
 Morse v. Royal, 186. 190 
 Morse v. Shattuck, '383 
 Mortlock V. Butler, 467, 470, 477, 659 
 
 Morton r. Ridgeway, 398, 665, 668, 669 
 
 Morton v, Willborn, 137 
 
 Moseley v. Hunter, 379, 285, 310 
 
 Moser v. Cochran, 674, 676, 737, 728 
 
 Moses V. McPherian, 133, 630 
 
 Moses V. Wallace, 468, 469 
 
 Moss V. Davidson, 454, 670, 746 
 
 Moss V. Hanson, 639, 753 
 
 Mott V. Ackerman, 763 
 
 Mott V. Mott, 700, 734, 773 
 
 Mott V. Palmer, 258 
 
 Moulton V. Chafiee, 30 
 
 Moulton V. Edmonds, 161 
 
 Moyer v. Shoemaker, 603, 643 
 
 Mudd V. Green, 602 
 
 Muir V. Berkshire, 136, 137 
 
 Muir V. Craig, 140 
 
 Mullings T. Trinder, 678 
 
 MuUin T. Atherton, 127 
 
 MuUin V. Boggs, 60 
 
 Mullins V. Aikin, 692, 720, 722 
 
 Mullins V. Bloomer, 582 
 
 Mullins V. Jones, 338, 574 
 
 Mullins v. Porter, 714 
 
 Mumford v. Pearce, 481, 716, 717 
 
 Munday v. Vail, 94, 97 
 
 Munro v. Long, 453, 454 
 
 Munroe v. Pritchett, 334, 350, 251, 252 
 
 Murdock v. Gilchrist, 480 
 
 Murphin v. Scoville, 30, 85 
 
 Murphree v. Dogan, 483 
 
 Murphy v. Jones, 422 
 
 Murphy v. Lockwood, 143, 145 
 
 Murphy v. Price, 156, 345 
 
 Murphy v. Richardson, 567, 636, 638 
 
 Murray v. Ellis, 635, 674, 684, 698 
 
 Murray v. Harway, 684, 693, 694 
 
 Murray v. Palmer, 667 
 
 Murray v. Sells, 536 
 
 Murrell v. Goodj'ear, 481, 746 
 
 Muskingum Val. T'pike v. Ward, 45 
 
 Myers v. De Meier, 748, 749 
 
 Myers v. Broadbeck. 314 
 
 Mygatt V. Coe, 261, 304, 370 
 
 isr. 
 
 Nabours v. Cocke, 803 
 
 Naglee v. Ingersoll, 413 
 
 Napier v. Elani, 343, 244 
 
 Nash V. Ashton, 418 
 
 Nash V. Palmer, 337, 339 
 
 Nash V. SpofCord, 514 
 
 Nathan v. Morris, 730 
 
 Nat. Fire Ins. Co. v. McKay, 433 
 
 Naylor v. Winch, 818, 816 
 
 Nebe, In re, 70 
 
 Needham v. Salt Lake City, 116 
 
 Neel V. Carson, 137 
 
 Neel V. Hughes, 49 
 
 Neel V. Prickett, 571, 573 
 
 Neeson v. Bray, 341 
 
 Negley v. Lindsay, 193, 583 
 
 Nelson v. Matthews, 30, 380 
 
 Nelson v. Prewitt, 433, 783 
 
TABLE OF CASES. 
 
 Nelson v. Harwood, 489 
 
 Nelson v. Owen, 788 
 
 Nelson v. Russell, 724 
 
 Nelthorp v. Howgate, 475 
 
 Nerhooth v. Althouse, 534 
 
 Nesbit V. Brown, 369, 375 
 
 Nesbit V. Campbell, 446 
 
 Nesbit V.' Nesbit, 369 
 
 Nesbit V . Miller, 303 
 
 Newark Sav. Inst. v. Jones, 30, 21 
 
 146, 195 
 New Barb. Bridge Co. v. Vreeland, 20 
 Newbold v. Peabody Heiffhts, 195, 301, 
 
 430 
 New Brunswick R. Co. v. Conybeare, 
 
 235 
 Newcomb v. Bracket, 15 
 Newcomb v. Presbrey, 322 
 Newcomber v. Brooks, 107 
 Newell V. Turner, 193 
 Newman v. Samuels, 64 
 Newnanv. Maclin, 594, 718, 774 
 Newsom v. Davis, 723 
 Newsom v. Graham, 443 
 Newsom v. Harris, 213 
 Newsom v. Thompson, 43 
 Newton v. Foster, 434 
 N. T. Steam Co. v. Stern, 704 
 Neyland v. Neyland, 450 
 Nichol V. Nichol, 198 
 Nicholas v. Jones, 156 
 Nichols V. Alexander, 507 
 Nichols V. Corbett, 39 
 Nichols V. Dissler, 130 
 Nichols V. Freeman, 214 
 Nichols V. Walters, 270, 271, 378 
 Nicholson v. Caress, 532, 534 
 Nicholson v. Condon, 682 
 Nicholson v. Sherard, 483 
 Nicholson v. Wadsworth, 459, 584, 661 
 Nickles v. Hastings, 121 
 Nlcol V. Nicol, 243 
 NicoU V. Carr, 591, 663, 663, 674, 686, 
 
 734, 735 
 Nicoll v. Mason, 539 
 Nieto V. Carpenter, 515 
 Niles V. Harmon, 616 
 Nind V. Marshall, 337 
 Nixon V. Carco, 531 
 Nixon V. Hyserott, 155 
 Nodine v. Greenfield, 75S 
 Noell V. Gill, 538 
 Noke V. Awder, 368 
 Nokes V. Lord Kilmorey, 760 
 Nolan V. Pelton, 385 
 Noonan v. Illsley, 507, 510, 603 
 Noonan v. Lee, 346, 431, 606, 617 
 Norgren v. Edson, 130 
 Norman v. Norman, 131 810, 813 
 Norris v. Evans, 449 
 Norris V. Kipp, 336, 412, 413 
 Northridge v. Moore, 219, 333 
 Norton v. Babcock, 388, 313, 386 
 Norton v. Colgrove, 307 
 Norton V. Herron, 156 
 
 Norton V. Jackson, 421, 448 
 
 Norton v. Marten, 818 
 
 Norton v. Neb. L. & Tr. Co., 86, 87 
 
 Norton v. Young. 664 
 
 Nosier v. Hunt, 373, 433 
 
 Nott V. Ricard, 39 
 
 Nouaille v. Flight, 30, 689, 773 
 
 Nowler v. Colt, 138 
 
 Nowlin V. Pyne, 533, 534 
 
 Noyes v. Johnson, 24, 702, 703 
 
 Noyes v. Phillips, 230 
 
 Nugent V. Priebatsch, 544 
 
 Nunnally v. White, 360 
 
 Nunally v. White, 495 
 
 Nutting V. Herbert, 270, 373, 383, 384 
 
 Nyce v. Obertz, 394, 312 
 
 o. 
 
 Cakes v. Buckley, 17, 206 
 
 Oakley v. Drummond, 424 
 
 O'Bannon v. Paremour, 494 
 
 O'Beirne v. Buller, 464 
 
 Otternyce v. Obertz, 777 
 
 Oberthier v. Stroud, 119, 120 
 
 O'Connell v Duke, 811 
 
 O'Connor v. Higgins, 701, 706 
 
 O'Perrall v. Simplot, 72 
 
 Officer V. Murphy, 662, 663, 666 
 
 Ogburn v. Whitlow, 449, 451 
 
 Ogdeu V. Ball, 273, 373, 348, 392 
 
 Ogden V. Yoder, 798 
 
 Ogilvie V, Hall, 339 
 
 Ohio & Miss. R. Co. v. McCarthy, 660 
 
 Ohling V. Luitjens, 599, 607, 645, 799 
 
 O'Kane v. Kiser, 733 
 
 O'Kelly V. Gholston, 137 
 
 Oldfleld V. Stevenson, 433, 437, 790 
 
 OUver V. Dix, 754 
 
 Oliver v. Hallam, 766 
 
 Oliver v. Loye, 269 
 
 Oliver v. Piatt, 620 
 
 O'Meara v. McDaniel, 273 
 
 Omerod v. Hardmau, 764 
 
 O'Neill V. Douthett, 568, 740 
 
 O'Neill V. Vanderberg, 514 
 
 Onions v. Tyrer, 816 
 
 Ontario Bank v. Lansing, 121, 123 
 
 O'Reilly v. King, 676, 684, 685, 689, 717 
 
 OrendorfE v. Tallman, 654, 801 
 
 Ormsby V. Terry, 79, 81 
 
 Orme v. Boughton, 14, 257 
 
 Osbaldiston v. Askew, 694, 695, 696 
 
 Osborn v. Dodd, 661 
 
 Osborne v. Atkins, 304, 305, 767 
 
 Osborne v. Breman, 773 
 
 Osborne v. Dodd, 584 
 
 Osborne v. Harvey, 38 
 
 Osborne v. McMillan, 157 
 
 Osborne v. Nicholson, 340 
 
 Osborne v. Rowlett, 687 
 
 Osgood V. Franklin, 659 
 
 Osterbury v. Union Trust Co., 143 
 
 Osterhout v. Shoemaker, 523 
 
 Osterman v. Baldwin, 120 
 
lii 
 
 TABLE OF CASES. 
 
 Oswald V. Sproehlne, 534 
 
 Ott V. Sprague, 517 
 
 Ottinger v. Strasburger, 700, 701, 702, 
 
 704 
 Outlaw V. Morris, 665 
 Overhiser v. McColIister, 370, 611 
 Overly v. Tipton, 204 
 Overstreet v. Dobson, 290 
 Owea V. Norris, 205 
 Owen V. Thomas, 341, 848, 414 
 Owens V. Oowan, 746 
 Owens V. Rector, 234, 602 
 Owens V. Salter, 446, 484 
 Owings V. Baldwin, 695 
 Owings V. Thompson, 20 
 
 P. 
 
 Pack V. Qaither, 457 
 
 Packard v. Usher, 167 
 
 Page V. Adam, 81 
 
 Page V. Brown, 153 
 
 Page V. Greeley, 24, 190, 690, 703 
 
 Page V. Lashley, 293 
 
 Paine v. Miller, 161 
 
 Painter v, Henderson, 171 
 
 Palmer v. Chandler, 386 
 
 Palmer v. Morrison. 725, 726 
 
 Palmer v. Richardson, 184, 188, 763 
 
 Palmerton v. Hoop, 117 
 
 Pangborn v. Miles, 567, 728, 738, 739 
 
 Papin V. Goodrich, 41, 164 
 
 Parham v. Parham, 529 
 
 Parham v. Randolph, 284, 245, 250, 774, 
 
 800 
 Parish v. Whitney, 295 
 Park V. Bates, 345, 351, 379, 380, 407 
 Park V. Johnson, 660, 671, 733 
 Parker v. Baker, 59 
 Parker v. Brown, 354, 255, 370 
 Parker v. Culbertson, 423 
 Parker v. Dunn, 348 
 Parker v. Goddard, 132 
 Parker v. Hart, 486 
 Parker v. Jones, 494 
 Parker v. Kane, 99 
 Parker v, McAllister, 84, 205 
 Parker v. Parker, 279, 799 
 Parker v. Parmele, 33 
 Parker v. Porter, 690, 720 
 Parker v. Richardson, 386, 415 
 Parker v. Starr, 541 
 Parker v. Teas, 546 
 Parkins v. Williams, 792 
 Parkinson v. Sherman, 486, 440, 447 
 
 606 
 Parks V. Brooks, 594, 656, 659, 663, 731, 
 
 789" 
 Parks V. Jackson, 695 
 Parlin v. Stone, 534 
 Parmly v. Head, 674, 676 
 Parr v. Lovegrove, 700 
 Parsons v. Gilbert, 749 
 Partridge v. Hatch, 389 
 Partridge v. Patton, 522 
 
 Paslay v. Martin, 764 
 
 Pate V. Mitchell, 34, 261, 484 
 
 Pate V. McConnell, 748 
 
 Paton V. Brebner, 470, 776 
 
 Paton V. Rogers, 467 
 
 Patrick V. Leach, 874 
 
 Patrick v. Roach, 665, 668 
 
 Patten v. Fitz, 300 
 
 Patten v. Stewart, 193, 243, 617, 662 
 
 Patterson v. Arthur, 300, 301, 303, 840 
 
 Patterson v. Carneal, 50 
 
 Patterson v. Dwinel, 534 
 
 Patterson v. Fisher, 534 
 
 Patterson v. Goodrich, 36 
 
 Patterson v. Long, 30, 777 
 
 Patterson v. Pease, 501 
 
 Patterson v. Stewart, 394 
 
 Patterson v. Sweet, 396 
 
 Patterson v. Taylor, 608 
 
 Patterson v. Yancey, 293, 317 
 
 Patton V. Camplin, 454 
 
 Patton V. England, 194, 439, 651 
 
 Patton V. Kennedy, 389, 408, 412, 413 
 
 Patton V. McFarlane, 341, 348 
 
 Patton V. Taylor, 431, 785, 801 
 
 Patton V. Thompson, 106 
 
 Paul V. Kenosha, 805 
 
 Paul V. Witman, 350, 363, 406, 408 
 
 Payne v. Atterbury, 594 
 
 Payne v. Cabell, 614 
 
 Payne v. Echols, 150 
 
 Payne v. Markle, 703 
 
 Paxson V. Lefierts, 319 
 
 Paxton V. Sterne, 137 
 
 Peabody v. Brown, 45 
 
 Peabody v. Phelps, 638, 653, 654 
 
 Peak V, Gore, 736, 745 
 
 Pearson v. Chapin, 383, 591, 647, 650 
 
 PearsoU v. Frazer, 307 
 
 Pearson v. Davis, 370 
 
 Pearson v. Seay, 559 
 
 Pease v. Christ, 393, 394 
 
 Peay v. Capps, 584, 681 
 
 Peay v. Wright, 653 
 
 Peck V. Hensley, 348 
 
 Peck V. Houghtaling, 274. 376, 323 410 
 
 411, 414 
 Peck V. Jones, 636 
 Peckham v. Stewart, 721 
 Peden v. Moore, 421, 440 
 Peebles v. Stephens, 584, 661, 665, 668 
 
 800 
 Peeler v. Lew, 474, 475 
 Peers v. Barnett, 438, 575, 704, 797 
 Peers v. Lambert, 774 
 Peet V. Beers, 487 
 Pegler v. White, 677, 679 
 Pelletreau v. Jackson, 516 
 Pence v. Duval, 363, 336, 839, 373, 4 l3 
 Pendleton v. Button, 72 
 Penfield v. Clarke, 36 
 Penn v. Armstrong, 545 
 Penu V. Preston, 685 
 Pennington v. Clifton, 140 
 Pennsylvania v. Sims, 635 
 
TABLE OF CASES. 
 
 M 
 
 People V. Gilon, 291, 567 
 
 People V. Globe Ins. Co., 683 
 
 People V. Life Ins. Co., 724 
 
 People V. Open Board, etc., 682, 749, 
 
 757 
 People V. Sisson, 422 
 People V. Society, 513 
 People V. Stock Brokers' Building Co. , 
 
 688 
 People's Sav. Bank v. Alexander, 299 
 Pepper v. Rowley, 422 
 Peques v. Mosby, 559, 580 
 Perciful v. Hurd, 607 
 Perkins v. Bamford, 435 
 Perkins v. Dickinson, 529 
 Perkins v. Ede, 774 
 Perkins v. Fairfield, 92 
 Perkins v. Hadley, 214, 361, 477, 594, 
 
 668 
 Perkins v. White, 78 
 Perkins v. "Williams, 431 
 Perrot v. Perrot, 816 
 Perry v. Adams, 138 
 Perry v. William, 141 
 Pershing v. Canfleld, 204, 588 
 Personneau v. Blakely, 532 
 Peterman v. Laws, 132 
 Peters V. Anderson, 485 
 Peters v. Bowman, 367, 435 
 Peters v. Delaplaine, 777 
 Peters v. Farnsworth, 155 
 Peters v. Grubbs, 338, 340, 359 
 Peters v. McKeon, 212, 215, 222, 233, 
 
 373 
 Peters v. Meyers, 290, 291 
 Peterson v. McCulloch, .423 
 Petrie v. Folz, 354, 355, 383 
 Pettys V. Marsh, 560 
 Pfirrman v. Wattles, 134, 424 
 Phelps V. Decker, 328 
 Phelps V. Kellogg, 503 
 Phelps V. Phelps, 52, 346 
 Phillbrook v. Emswiler, 624 
 Phillips V. Coffee, 127 
 Phillips V. Cooper, 403 
 Phillips V. Day, 705, 709 
 Phillips V. Evans, 340 
 Phillips V. Herndon, 36, 148, 311 
 Phillips V. O'Neal, 593 
 Phillips V. People, 59 
 Phillips V. Reichert, 373, 378, 390 
 Phillips V. Ruble, 61 
 Phillips V. Scott, 640 
 Phillips V. Smith, 375. 383 
 Phillips V. Stanch, 473 
 Phillips V. Walsh, 75, 76 
 Phillipson v. Gibbon, 766 
 Phipp V. Childs, 689 
 Pickitt V. Loggon, 147 
 Piedmont Coal Co. v. Green, 575 
 Pierce v. Johnston, 362 
 Pierce V. Milwaukee R. Co., 418, 493, 
 
 512 
 Pierce v. Nicol, 746 
 Pierce v. Nichols, 768 
 
 Pierson v. Armstrong, 50 
 
 Pierson v. Doe, 50 
 
 Pike V. Galvin, 262, 522 
 
 Pike V. Goodnow, 499 
 
 Pilaud V. Taylor, 58 
 
 Pilcher V. Prewitt, 616, 618 
 
 Pilcher v. Smith, 594 
 
 Pillsbury v. Mitchell, 262, 304, 309, 313, 
 
 317 
 Pincke v. Curtis, 192 
 Pinkston v. Hine, 228, 373 
 Pino V. Beckwith, 557, 590 
 Pintard v. Martin, 616 
 Piper V. Elwood, 141 
 Pipkin V. James, 557, 754, 761 
 Pitcher v. Livingston, 150, 269, 370, 398 
 Pitkin V. Leavitt, 345, 400, 407, 408, 409, 
 
 410, 412 
 Pitman v. Connor, 282, 325 
 Piatt v. Gilchrist, 427, 435, 606, 793 
 Piatt V. Newman, 728 
 Plsiyter v. Cunningham, 337, 346 
 Plowman v. Shidler, 498 
 Plummer v. Rigdon, 213 
 Plummer v. Russell, 48 
 Point Street Iron Works v. Simmons, 
 
 151 
 Poke V. Kelly, 559, 634 
 Polk V. Stevenson, 167 
 Polk V. Sumter, 49, 731 
 Pollard V. Dwight, 255, 257, 258 
 Pollard V. Rogers, 193 
 Pollock V. Speidel, 494 
 Pollock V. Wilson, 671 
 Pomeroy v. Burnett, 307, 433, 446, 
 
 447 
 Pomeroy v. Drury, 30, 36 
 Pomeroy v. Partington, 396 
 Pope V. Garland, 21, 30 
 Pope V. Simpson, 134 
 Pope V. Wray, 582 
 Pool V. Ellis, 138, 139 
 Poole V. Hill, 199 
 Poole V. Shergold, 773 
 Poor V. Boyce, 114, 117 
 Porter v. Bradley, 393, 314 
 Porter v. Hill, 510 
 
 Porter v. Noyes, 33. 35, 394, 347, 731 
 Porter v. Scobie, 577 
 Porter v. Sullivan, 533 
 Porter v. Titcomb, 663 
 Porterfield v. Payne, 686 
 Portman v. Mill, 765 
 Post V. Bernheimer, 735 
 Post V. Campau, 293 
 Post V. Leet, 82, 121, 803 
 Post V. Weil, 731 
 Potter V. Kitchers, 277 
 Potter V. Parry, 677 
 Potter V. Taylor, 284 
 Potter V. Tuttle, 151 
 Potwin V. Blasher, 354, 397, 437 
 Poulet V. Hood, 154 
 Poulson V. Ellis, 300 
 Pounsett V. Fuller, 311 
 
liv 
 
 TABLE OF CASES. 
 
 Powell V. Conaut, 689 
 
 Powell V. Edmonds, 33 
 
 Powell V. Lyles, 326 
 
 Powell V. Matj;r, 767 
 
 Powell V. Morrissey, 546 
 
 Powell V. Munson, 394 
 
 Powell V. Powell, 697 
 
 Powell V. So. Wales R. Co., 776 
 
 Power V. Standish, 491 
 
 Powers V. Bryant, 69 
 
 Poyas T. Wilkins, 453 
 
 Poyntell v. Spencer, 348, 350, 634, 
 
 640 
 Pratt V. Campbell, 464, 769 
 Pratt V. Eley, 678, 703, 704 
 Pratt V. Pratt, 511, 513 
 Preisslnger v. Sharp, 682 
 Presbrey v. Kline, 461, 891, 746, 751, 
 
 753 
 Prescott V. Hayes, 60 
 Prescott V. Hobbes, 366 
 Prescott V. Trueman, 356, 386, 307, 309, 
 
 313, 739, 777 
 Prescott V. Williams, 296 
 Presser v. Hildebrand, 473 
 Preston v. Breedlove, 449 
 Preston v. Fryer, 81, 84. 87 
 Preston v. Harrison, 140 
 Preston v. Whitcomb, 36 
 Preston v. Williams, 545, 546 
 Prevost V. Gratz, 421, 608 
 Prewitt V. Graves, 689, 722 
 Prewltt V. Kenton, 403 
 Price V. Ayres, 791, 797 
 Price V. Blount, 449 
 Price V. Boyd, 140 
 Price V. Browning, 184, 576 
 Price V. Johnson, 256 
 Price V. Real Estate Assn, 117 
 Price V. Strange, 677 
 Pringle v. Spaulding, 210 
 Pringle v. Witton, 376, 343 
 Pritchard v. Atkinson, 399 
 Prosser v. Watts, 681, 700 
 Prothro v. Smith, 760 
 Prov. Life N. Co. v. Seide, 262 
 Prout V. Gibson, 575 
 Prout V. Roberts, 243, 653, 800 
 Pry V. Pry, 51 
 
 Pryse v. McGuire, 241, 344, 351, 423 
 Puckett V. McDonald, 115, 559, 633 
 Pugh V. Brittain, 543 
 Pugh V. Chasseldine, 35, 148 
 Pugh V. Mayo, 498 
 Pumpelly v. Phelps, 316, 224, 226, 
 
 337 
 Purcell V. Heeney, 435 
 Purvis V. Raver, 30, 33, 676 
 Pusey v. Desbourne, 816 
 Puterbaugh v. Puterbausrh, 20, 313, 
 
 237 
 Putnam v. Ritchie, 139 
 Putnam v. Westcott, 557 
 Pyrke v. Waddingham, 675, 678, 680, 
 687 
 
 Q. 
 
 Quarles v. Campbell, 115 
 Quick V. Taylor, 301 
 Quimby v. Lyon, 304 
 Quivey v. Baker, 494, 517, 519 
 
 II. 
 
 Badcliff V. Ship, 348. 409 
 
 Rader v. Neal, 104, 153 
 
 Radford v. Willis, 680 
 
 Ragan v. Gaither, 695 
 
 Raines v. Callaway, 411 
 
 Raines v. Walker, 494 
 
 Ralston v. Miller, 438, 794 
 
 Ramsden v. Hurst, 30 
 
 Ramsey v. Smith, 536 
 
 Ramsour v. Shuler, 481, 781 
 
 Randall v. Albertis, 339 
 
 Randall v. Lower, 498, 499 
 
 Randall v. Mallett, 307 
 
 Randolph v. Kinney, 263, 369 
 
 Randolph v, Meeks, 348, 345 
 
 Ranelagh v. Hayes, 491 
 
 Rankin v. Maxwell, 468 
 
 Ranney v. Smith, 535 
 
 Ranson v. Shuler, 781 
 
 Rantin v. Robertson, 387 
 
 Rash V. Jenne, 378 
 
 Rashall v. Ford, 349 
 
 Rathbun v. Rathbun, 496 
 
 Rawley v. Beaman, 69 
 
 Rawlings v. Adams, 213 
 
 Rawlins v. Timberiake, 433, 784, 792 
 
 Ray V. Detchon, 137 
 
 Ray V. Pease, 50 
 
 Ray V. Virgin, 113 
 
 Raymes v. Clarkson, 44 
 
 Raymond v. Holden, 514 
 
 Raymond v. Raymond, 255, 381 
 
 Raymond v. Squire, 263 
 
 Raynor v. Lyon, 781 
 
 Rea V. Minkler, 335, 859, 414 
 
 Read v. Fogg, 519, 533 
 
 Read v. Walker, 202, 593, 663, 800 
 
 Reading v. Gray, 807 
 
 Real v. Hollister, 348 
 
 Reardon v. Searcy, 137 
 
 Reasoner v. Edmundsou, 359, 307, 348, 
 
 ?55 
 Reck V. Clapp, 181 
 Recohs v. Younglove, 254, 391 
 Rector v. Higgins, 307 
 Rector v. Price, 778 
 Redding v. Lamb, 834, 443 
 Reddington v. Henry, 565 
 Redmon v. Phenix Ins. Co., 388 
 Redwine v. Brown, 363, 336, 363, 365 
 Reece v. Haymaker, 717 
 Reed v. Crosthwaite, 140 
 Reed v. Hatch, 327 
 Reed v. Reed, 717 
 Reed v. Noe, 695, 773, 774 
 Reed v. Pierce, 309 
 
TABLE OF CASES. 
 
 Iv 
 
 Reed v. Root, 532 
 
 Reed v. Sycks, 430 
 
 Reed v. Tioga Mfg. Co., 435, 780 
 
 Reeder v. Craig, 494 
 
 Reese v. Gordon, 440, 617 
 
 Reese v. Kirk, 13 
 
 Reese v. McQuilkiu, 373, 418 
 
 Reese v. Smith, 493, 510 
 
 Reeves v. Dickey, 576, 577, 748, 753 
 
 Refeld, v. Woolfblk, 619 
 
 Regney v. Coles, 692, il5 
 
 Regney v. Small, 131 
 
 Reid V. Sycks, 384 
 
 Reilly v. Burton, 137 
 
 Reiner's App., 113 
 
 Remillard v. Prescott, 535, 539 
 
 Remington v. Hornby, 148 
 
 Remington v Palmer, 439, 481 
 
 Remy v. Olds, 204 
 
 Renick v. Renick, 794 
 
 Renshaw v. Gans, 481, 487, 635 
 
 Resser v. Carney, 499 
 
 Reuter v. Lane, 643 
 
 Reydell v. Reydell, 697 
 
 Reynolds v. Borel, 693 
 
 Reynolds v. Clark, 473 
 
 Reynolds v. Cleary, 730 
 
 Reynolds v. Harris, 137, 338 
 
 Reynolds v. Nelson, 549 
 
 Reynolds v. Smith, 756 
 
 Reynolds v. Strong, 673, 684, 719, 757 
 
 Reynolds v. Vance, 774 
 
 Rex V. Creel, 333, 345 
 
 Rex V. Holland, 568 
 
 Rhea v. Allison, 669 
 
 Rhea v. Swain, 394 
 
 Rheel v. Hicks, 122 
 
 Rhoads v. Selin, 105 
 
 Rhode V. Alley, 151, 451, 631, 650 
 
 Rhode V. Green, 408, 413 
 
 Rhodes v. Ibbetson, 27 
 
 Rhodes v. Wilson, 559 
 
 Rhorer v. Bila, 584, 585 
 
 Rice V. Barrett, 724 
 
 Rice V. Burnett, 109, 113, 118 
 
 Rice V, Goddard, 434, 439 
 
 Rice V. Kelso, 498 
 
 Rice V. Poynton, 541 
 
 Rich V. Johnson, 393 
 
 Richards v. Bent, 363, 288, 305 
 
 Richards v. Homestead Co., 354, 357, 
 
 385, 386 
 Richards v. Mercer, 733 
 Richardson v. Bright, 241, 343, 245 
 Richardson v. Butler, 117 
 Richardson v. Dorr. 354, 307 
 Richardson v. Eyton, 30 
 Richardson v. Gosser, 637, 640 
 Richardson v. Jones, 681 
 Richardson v. McDougall, 134, 141 
 Richardson v. McKinson, 665, 667, 668 
 Richardson v. Tobey, 297 
 Richardson v. Williams, 785 
 Richmond V. Gray, 188, 709, 747, 753 
 Richmond v. Koenig, 733 
 
 Richmond v. Marston, 136 
 
 Richmond v. Robinson, 473 
 
 Richmond v. Voorhees, 61 
 
 Ricker v. Pratt, 782, 789 
 
 Rickert v. Snyder, 276, 314, 338, 348, 
 
 400, 411 
 Ricketts v. Dickens, 320, 336, 345 
 Riddell v. Blake, 670 
 Riddle v. Bush, 138 
 Riddle v. Hill, 113 
 Riddleberger v. Mintzer, 473 
 Rider v. Powell, 537 
 Ridgeley v. Howard, 58 
 Ridgway v. Gray. 776, 777 
 Riesz's Appeal, 473 
 Rife V. Lybarger, 733. 737, 776 
 Rigg V. Cook, 503 
 Riggs V. Russell, 79, 193, 560 
 Riley v. Kepler, 111 
 Riley v. Million, 121 
 Rimer v. Dugan, 243, 350, 800 
 Rinaldo v. Houseman, 567 
 Rineer v. Collins, 310, 313 
 Rindskopf v. Trust Co. , 346 
 Rinehart v. Rinehart, 309 
 Ripley v. Kepler, 109 
 Rippingall v. Loyd, 31 
 Ritter v. Henshaw, 133, 140 
 Ritter v. Phillips, 447 
 Roach V. Rutherford, 188, 191, 573 
 Roake v. Kidd, 676 
 Robards v. Cooper, 431 
 Robb V. Irwin, 95 
 
 Robb V. Montgomery, 35, 47, 580, 751 
 Roberts v. Bassett, 35, 36 
 Roberts v. Levy, 361, 267, 395, 301 
 Roberts v. Lovejoy, 468 
 Roberts v. Stowers, 95, 128 
 Roberts v. Taliaferro, 530 
 Roberts v. Wolbright, 432, 606 
 Roberts v. Wyatt, 31, 165, 459, 478 
 Robertson v. Bradford, 115, 138 
 Robertsou-v. Gaines, 494 
 Robertson V. Hogsheads, 574, 648 
 Robertson v. Lemon, 373, 396, 400 
 Robinson v. Brakewell, 220, 637 
 Robinson v. Galbreath, 803 
 Robinson v, Hardman, 338 
 Robinson v. Heard, 313 
 Robinson v. Maudlin, 61 
 Robinson v. Murphy. 293 
 Robinson v. Page, 553 
 Robinson V. Redman, 93 
 Robinson v. Ryan, 137, 138 
 Robbins v. Bath House Co., 537 
 Bobbins v. Mayer, 531 
 Robison v. Robison, 610 
 Roche V. O'Brien, 186 
 Rockfeller v. Donelly, 380 
 Rocksell V. Allen, 133 
 Rockwell V. Wells, 438 
 Rodman v. Williams, 568 
 Roebuck v. Dupuy, 34S, 354 
 Roehl V, Haumesser, 809 
 Roehl V. Pleasants, 113, 113 
 
h 
 
 TABLK OT CASES. 
 
 Rogers v. Abbott, 541 
 
 Rogers v. Borchard, 36 
 
 Rogers v. Glemmans, 116 
 
 Rogers v. Colt. 649 
 
 Rogers v. Daily, 386 
 
 Rogers v. G-olson, 382 
 
 Rogers v. Horn, 86, 451 
 
 Rogers v. Olshoffsky, 589, 635, 662 
 
 Rogers v. Place, 435, 790 
 
 Rogers v. Tfaterhouse, 679 
 
 Rohr V. Kindt, 36, 218, 468, 478 
 
 Roland v. Miller, 6.34, 636 
 
 Rolfes V. Russell, 252 
 
 Roller V. Efflnger, 481, 746 
 
 Rollins T. Henry, 120 
 
 Rolpli T. Crouch, 387 
 
 Romig V. Romig, 35 
 
 RomiUy v. Jones, 683, 684, 685 
 
 Roots V. Dormer, 773 
 
 Rose V. Calland, 734 
 
 Rose V. Neuman, 60 
 
 Rose V. Schafiner, 367 
 
 Roseman v. Couovan, 287 
 
 Rosenberger v. Keller, 315, 796 
 
 Rosenthal v. GritHn, 63 
 
 Ross V. Boards, 470, 777 
 
 Ross T. Dysart, 331, 340 
 
 Roswall V. Vaughan, 617, 65;l 
 
 Roszell V. Roszell, 536, 543 
 
 Rounds V. Baxter, 559, 581 
 
 Rowland v. Dowe, 210 
 
 Rowe V. Heath, 328, 401 
 
 Rowe V. School Board, 213 
 
 Royal V. Dennisou, 47 
 
 Royce v. Burrell, 333 
 
 Royer v. Foster, 354, 355 
 
 Rucker v. Lowther, 148, 15r 
 
 Rudd V. Savelli, r48 
 
 Rufner v. McConnell, 278 
 
 Ruffner v. McLcnan, 07 
 
 Ruggles V. Barton, 511 
 
 Rundell v. Lakey, 291, 445 
 
 Runge V, Sabiu, 65 f 
 
 Runkle v. .Tohnson, 205 
 
 Runnels v. Webber, 294 
 
 Runj^an v. Mersereau, 359 
 
 Ruppert V. Haske, 544 
 
 Rush V. Truby, 43 
 
 Russ V. Alpaugh, 496, 508 
 
 Russ V. Perry, 394, 333 
 
 Russ V. Steele, 359 
 
 Russ V. Wingate, 58, 69 
 
 Russell V. Copeland, 313 
 
 Russell V. Hudson, 133 
 
 Russell V. Shively, 744 
 
 Rutherford v. Haven, 206 
 
 Rutherford v. Stamper, 106 
 
 Rutledge v. Lawrence, 213, 225, 466 
 
 Rutledge v. Smith, 534, 594, 776, 768 
 
 Ryan v. Dunlap, 464 
 
 Ryan v. Wilson, 50 
 
 Ryder v. .Jenny, 150 
 
 Ryerson v. Chapman, 400, 401, 409, 
 
 418 
 Ryerson v. Willis, 435, 431, 430, 440 
 
 S. 
 
 Sable V. Brockmeier, 273 
 
 Sable V. Maloney, 539 
 
 Sackett v. Twining, 109 
 
 Sage V. Jones, 304 
 
 Sage V. Ranne}', 580, 581 
 
 Saint V. Taylor, 785 
 
 Salisbury v. Hatcher, 754 
 
 Salle V. 'Light, 403 
 
 Salmon v. fioffman, 431 
 
 Salmon v. Vallejo, 261, 263 
 
 Salmon v. Webb, 562 
 
 Salmond v. Price, 136, 141 
 
 Saltonstall v. Gordon, 237, 348 
 
 Saltonstall -s . Riley, 93 
 
 Sampeyrac v. U. S., 179 
 
 Sanborn v. Gunter, 806 
 
 Sanborn v. Nockin, 472 
 
 Sanderaan v. McKinsie, 186 
 
 Sanderlin v. Willis, 310 
 
 Sanders v. Hamilton, 124 
 
 Sanders v. Lansing, 557 
 
 Sanders v. Wagner, 311, 385, 386 
 
 Sandford v. Travels, 662, 309 
 
 Sands v, Lynham, 137, 138 
 
 Sandwich Mfg. Co. v, Zellman, 285, 
 
 333 
 Sanford v. Bulkley, 60 
 Sanford v. Justice, 251 
 Sanford v. Sanford, 519 
 Sanford v. Wheeler, 35 
 Sargent \ . Gutterson, 383, 638 
 Saulters v. Victory, 213. 215 
 Saunders v. Planniken, 360, 303 
 Saunders v. Hamilton, 403 
 Saunders v. Pate, 119 
 Savage v. Mason, 397 
 Savings Inst. v. Bnrdick, 587 
 Savings & Loan Assoc, v. Mceks, 547 
 Sawyer v. Hovey, 539 
 Sawj-er v. Kendall, 53 
 Sawyer v. Sledge, 564, 596 
 Sawyer v. Vaughan, 375 
 Sawyer v. Wiswall, 435 
 Sawj'ers v. Cator, 333 
 Sayre v. Sheffield I^and Co., 373 
 Scantlin v. Anderson, 391, 423 
 Schaatz v. Keener, 538 
 Schaefer v. Causey, 138 
 SchaefEer v. Bond, 133 
 Schaffer v. Grutzmachen, 514 
 Scheible v. Slagle, 358 
 Schermerhorn v. Niblo, 674, 727 
 Schcrmerhorn v. Vanderheyden, 883 
 Scheu V. Lelming, 716, 775 
 Sohiffer v. Dietz, 14, 334, 748, 753 
 Schley v. Baltimore, 92 
 Schmidt V. Reed, 753 
 Schnelle Lumber Co. v. Barlow, 273 
 Schofield V. Iowa Homestead Co. , 364 
 
 266, 274, 331 
 Schollc T. SchoUe, 717, 718 
 Schoonover v. Diiugherty, 536 
 Schott V. McFarlanS, 614 
 
TABLE OF CASKS. 
 
 Ivii 
 
 Rrhveck v. Pierce, 20, 34, 458 
 Schroedcr v. Witham, 684 
 Schroeppel v. Hopper, 663 
 Schug's Appeal, 78 
 Schulenberg- \. Harriman, H-'iS 
 Schultze V. Rose, 701 
 Schumann v. Knoelael, 309, 446 
 Schuylkill, etc., R. Co. v. Schraoele, 
 
 337, 340, 851 
 Schwingev v. Hickock, 123 
 Scoffins V. Grandstaff, 362, 360, 363, 516 
 Scott V. Battle, 594, 622, 660 
 Scott V. Bilgerry, 464 
 Scott V. Davis, 187 
 Scott V. Gallagher, 58 
 Scott V. Hanson, 769 
 Scott V. Morning, 270 
 Scott V. Nixon, 700 
 Scott V. Scott. 331, 411 
 Scott V. Sharp, 765 
 Scott V. Simpson, 695 
 Scott Y. Thorp, 755, 766 
 Scott V. Twiss, 255 
 Scribner v. Holmes, 398 
 Scriver v. Smith, 358, 359 
 Scudder v. Andrews, 440, 617 
 Seaburn v. Sutherland, 661 
 Seaman v. Hicks, 83, 88, 699. 736 
 Seaman v. Vawdrey, 30, 678, 679 
 Seamore v. Harlan, 666, 669 
 Searcy v. Kirkpatrick, 483 
 Seaton v. Barry, 634 
 Seaton v. Booth, 773 
 Seaton v. Mapp, 38, 30 
 Sebring v. Mersereau, 713 
 Second Univ. Soc. v. Hardy, 747 
 Sedgwick V. Hargrave, 674 
 Sedgwick v. Hollenbeck, 359, 277, 338 
 Seeley v. Howard, 306 
 Seitzinger v. Weaver, 634 
 Selden v. James, 766 
 Seldner v. McCreery, 683, 737 
 Selden v. Wilhans, 634, 638 
 Seller v. Lingerman, 137 
 Semple v. Wharton, 332, 389 
 Seton V. Slade, 188, 192, 746 
 Seward v. Willcock, 201 
 Sewell V. Wilkins, 200 
 Seymour v. Delancy, 659, 693, 694, 704, 
 
 705, 754 
 Seymour v. Dennett. 581 
 Seymour v. Lewis, 303 
 Shackelford v. Hundly, 248, 250, 588, 
 
 800 
 Shackleton v. SutclifEe, 30, 730 
 Shacklett v. Ransom, 156 
 Shadbolt v. Bassett, 447 
 Shafer v. Wiseman, 413 
 Shaffer v. Bolander, 137, 130 
 Shaffer v. Green, 279. 287, 288 
 Shaffer v. McCracken, 130 
 Shakespear v. Delaney, 129 
 Shanks v. Whitney, 336 
 Shannon v. Marselis, 431, 433, 784 
 Share v. Anderson, 634, 634 
 
 viii 
 
 Sharland v. Leifohild, 30 
 
 Sharp V. Adcock, 677 
 
 Shattuck V. Cunningham, 463 
 
 Shattuck V. Lamb, 345 
 
 Shaw V. Bisbee, 326 
 
 Shaw V. Lord, 45 
 
 Shaw V. Vincent, 773 
 
 Shaw V. Wilkins, 214, 230, 337 
 
 Shaw V. Wright, 80 
 
 Sheard v, Willburn, 223 
 
 Shearer v. Fowler, 633 
 
 Shearer v. R:inger, 294, 777 
 
 Shears v. Dusenbury, 383, 404 
 
 Sheehy v. Miles, 690 
 
 Sheets v. Andrews, 199, 213, 215, 373 
 
 Sheets v. .Joyner, 328, 387, 406 
 
 Shefley v. Gardner, 304, 345, 413 
 
 Shelby v. JIarshall, 574 
 
 Shelby v. Williams, 792 
 
 Sheldon v. Newton, 95 
 
 Sheldon v. Stryker, 63 
 
 Shelley's Case, 733 
 
 Shelly V. Mikkleson, 483 
 
 Shelton v. Codman, 360 
 
 Shelton v. Livins, 33 
 
 Shelton v. Peas, 286, 316, 355 
 
 Shephard v. Carriel, 63 
 
 Shephard v. Keatley, 39 
 
 Shephard v. Little, 383 
 
 Shephard v. Mclntire, 487 
 
 Sherman v. Kane, 495 
 
 Sherman v. Ranger, 347 
 
 Sherman v. Savery, 567 
 
 Sherman v. Williams, 337, 338 
 
 Sherwin v. Shakespear, 163 
 
 Sherwood v. Landon, 605 
 
 Sherwood v, Vandenburgh, 523 
 
 Sherwood v. Wilkins,. 284 
 
 Shields v. Allen, 86, 565 
 
 Shields v. Bogliolo, 665 
 
 Shiffer v. Deitz, 192. 237 
 
 Shiflett V. Orange Humane Soc. , 586 
 
 Shipp V. Wheless, 134, 565, 574, 585, 
 
 661, 782 
 Shirley v. Shirley, 594 
 Shively v. Jones, 82 
 Shively v. Land Co., 550 
 Shober v. Dutton, 701, 704 
 Shober v. Robinson, 408 
 Shoemaker v. Johnson, 519 
 Shontz V. Brown, 154, 429, 624 
 Short V. Conlee, 68 
 Short V. Porter, 109, 138 
 Short V. Sears, 137 
 Shorthall v. Mitchell, 468 
 Shorthill v. Ferguson, 151 
 Shortwall v. Murray, 813 
 Shriverv. Shriver, 673, 674, 679, 691, 
 
 694, 701, 703, 704, 713, 773 ' 
 
 Shrove v. Webb, 565 
 Shroyer v. Nickell, 138, 632 
 Shryer v. Morgan, 216 
 Shultz V. Moore, 58 
 Shultz V. Sanders, 137 
 Shultz V. Thomas, 15, 473 
 
Iviii 
 
 TABLE OF CASES. 
 
 Sibbald v. Lowrie, 188 
 
 Sibley v. BuUis, 144 
 
 Sibley v. Spring, 35 
 
 Sidders v. Riley, 282 
 
 Sidebotham, Ex parte, 187, 188 
 
 Sidwell V. Birney, 62 
 
 Bikes V. Wild, 212, 314, 224 
 
 Silbar v. Ryder, 535, 538 
 
 Silverman v. Loomis, 871 
 
 Simanovich v. Wood, 281, 288 
 
 Simis V. McElroy, 733 
 
 Simmons v. Haseltine, 683, 686 
 
 Simmons v. North', 544 
 
 Simons v. Patchett, 211, 328 
 
 Simpson v. Atkinson, 461 
 
 Simpson v. Belvin, 378, 896, 408 
 
 Simpson v. Greeley, 516 
 
 Simpson v. Hart, 783 
 
 Simpson v. Hawkins, 423, 600, 689, 777, 
 
 784, 785, 786 
 Sims V. Boaz, 303 
 Sims V. Gray, 138 
 Sims V. Lewis, 464 
 Sinclair v. Jackson, 497 
 Sine V. Fox, 336 
 Singletary v. Carter, 105 
 Sisk V. Woodruff, 354, 406, 408 
 Sivoly V. Scott, 584 
 Sizemore v. Pinkston, 590 
 Skaaraas v. Pinnegan, 218 
 Skerrett v. Presbyterian Society, 530 
 Skilleen v. May, 656 
 Skinner v. Fletcher, 64 
 Skinner v. Moore, 103 
 Skinner v. Starner, 283 
 Skull V. Clenister, 21 
 Slack V. MoLagan, 444 
 Slack V. Thompson, 149 
 Slater v. Rawson, 255, 261, 369 
 Slaughter v. Tindle, 464 
 Slayback v. Jones, 339 
 Sloans V. Wells, 478 
 Slocum V. Bray, 47 
 Sloper V. Fish, 730 
 Small V. Atwood, 558 
 Small V. Jones, 497 
 Small V. Proctor, 533 
 Small V. Reeves, 272, 845, 423, 437, 446 
 Smeich v. Herbst, 589, 595 
 Smiley v. Fries, 496 
 Smith V. Acker, 446 
 Smith V. Ackerraan, 433, 437, 448 
 Smith V. Arnold, 110 
 Smith V. Babcock, 198, 650 
 Smith V. Brittain, 84 
 Smith V. Brittenham, 661 
 Smith V. Busby, 206, 661 
 Smith V. Connell, 294, 498 
 Smith V. Cansler, 753 
 Smith V. Carney, 209 
 Smith V. Chaney, 617, 635, 637 
 Smith V. Chapman, 534 
 Smith V. Compton, 385, 396, 409 
 Smith V. Cornell, 777 
 Smith V. Davis, 393, 314 
 
 Smith V. Death, 694 
 
 Smith V. De Busey, 517 
 
 Smith V. Dixon, 345 
 
 Smith V. Ellis, 30 
 
 Smith V. Fitting, 487 
 
 Smith V. Fly, 811 
 
 Smith V. Haynes, 41, 570 
 
 Smith V. Henry, 199 
 
 Smith V. Hudson, 433, 603 
 
 Smith V. Hughes, 259, 398, 426, 603 
 
 Smith V. Hunt, 60 
 
 Smith V. Jefts, 363, 304, 308 
 
 Smith V. Jones, 323, 434 
 
 Smith V. Kelly, 137, 138, 457, 464 
 
 Smith V. Kimball, 734 
 
 Smith V. Lamb, 555, 578 
 
 Smith V. Lewis, 201, 289, 578 
 
 Smith V. Lloyd, 278, 284, 287 
 
 Smith V, Mackin, 803 
 
 Smith V, McCluskey, 56? 
 
 Smith T. McCool, 775 
 
 Smith V. Montes, 495 
 
 Smith V. Moreman, 726 
 
 Smith V. Munday, 129 
 
 Smith V. Newton, 423, 605 
 
 Smith V. Nolan, 450 
 
 Smith V, Painter, 118 
 
 Smith V. Parsons, 398, 437, 484 
 
 Smith V. Perry, 364 
 
 Smith V. Pettus, 484, 559 
 
 Smith V. Richards, 348, 304 
 
 Smith V. Robertson, 301, 303, 308, 593, 
 
 593, 649, 656, 658, 803 
 Smith V. Rogers, 302 
 Smith V. Schiele, 33 
 Smith V. Scribner, 845 
 Smith V. Shipard, 344 
 Smith V. Sillyman, 687, 638 
 Smith V. Smith, 301 
 Smith V. Sprague, 396, 398 
 Smith V. Strong, 371, 384 
 Smith V. Taylor, 24, 35, 164, 690 
 Smith V. Turner, 720 
 Smith V. Williams, 494 
 Smith V. Winn, 80, 85, 812 
 Smith V. Wood, 546 
 Smlthers v. Steiner, 775 
 Smithson v. Inman, 668 
 Smoot V. Coffin, 422, 608 
 Smyth V. Merc. Tr. Co., 334 
 Snelgrove v. Snelgrove, 179 
 Snell V. Mitchell, 457 
 Snevilly v. Egle, 374, 583 
 Snevely v. Lowe, 95 
 Snider v. Coleman, 138 
 Snyder v. Jennings, 848, 353 
 Snyder v. Lane, 387, 310, 311 
 Snyder v. Spaulding, 714 
 Sooum V. Haun, 276 
 Sohier v. Williams, 90, 687, 688 718. 
 
 766 
 Somerville v. Hamilton, 408 
 Somers v Schmidt, 403, 405, 406, 407 
 Somes V. Skinner, 501, 503 
 Sons of Temp. v. Brown, 203, 306, 308 
 
TABLE OF CASES. 
 
 lix 
 
 Soper V. Arnold, 186, 563 
 
 Soper V. Kipp, 747 
 
 Soper V. Stevens, 616 
 
 Sorrels v. McHenry, 204, 421, 436, 559, 
 
 647 
 Souter V. Drake, 20, 28 
 Southall V. McKeand, 222 
 Southby V. Hutt, 163, 188 
 Southoomb v. Bishop, 661, 663 
 Sowler V. Day, 530 
 Sparrow v. IJingman, 516, 533 
 Sparrow v. Oxford R. Co., 31 
 Spaulding v. Pierle, 301, 753 
 Spaulding v. Hallenbeck, 781 
 Speakman v. Forepaugh, 195, 678, 697 
 Spear v. Allison, 337, 641 
 Spence v. Durein, 350 
 Spencer's Case, 363 
 Spencer v. Howe, 317 
 Spencer v. Topham, 679 
 Spicer v. Jones, 746 
 Spier V. Laman, 534 
 Splller V. "Westlake, 578 
 Spindler v. Atkinson, 137 
 Spitznagle v. Van Hossch, 64, 70 
 Spoor V. Green, 364, 605 
 Spoor V. Phillips, 181 
 Spraguo V. Baker, 363, 305, 354, 356, 357 
 Spratt V. Jeffrey, 39 
 Spray t. Rodman, 487 
 Spring V. Chase, 385. 395 
 Spring V. Sandlord, 728 
 Spring V. Tongue, 389 
 Springle V. Shields, 474 
 Springs v. Harven, 138, 534 
 Spruill V. Davenport, 330 
 Spurr V. Andrews, 293 
 Spurr V. Benedict, 780, 809 
 Staats V. Ten Eyck, 314, 369, 381, 393 
 Stackpole v. Robbins, 137 
 Stacy V. Kemp, 435 
 Stahley v. Irvine, 389, 686 
 Staley v. Ivory, 591 
 Stambaugh v. Smith, 385, 292 
 Stanard v. Eldridge, 259, 289, 307 
 Standifer v. Davis, 199. 306 
 Stanley v. Goodrich, 278 
 Stansbury v. Taggart, 431 
 St. Anthony's Falls W. P. Co. v. Merri- 
 
 man, 535, 539 
 Stanton v. Button, 64, 71 
 Stanton v. Tattersall, 21 
 Stansbury v. Ingelhart, 95, 97 
 Staples V. Dean, 383 
 Staples V. Flint, 411 
 Stapylton v. Scott, 459, 673 
 Star V. Bennett, 249 
 Stark V. Hill, 439, 651 
 Stark V. Olney, 373, 388, 398, 401 
 Stark V. Sigelow, 46 
 Starke v. Henderson, 575 
 Starkey v. Neese, 433, 454, 616 
 Starnes v. Allison, 734 
 State v. Crutchfield, 158 
 State V. Gaillard, 83 
 
 State V. Holloway, 337 
 
 State V. Paup, 814 
 
 State V. Salyors, 137 
 
 St. Clair v. Williams, 386 
 
 Stead v.. Baker, 794 
 
 Stearns v. Hendersass, 495 
 
 Stebbins v. Wolf, 373, 378, 393 
 
 Steele v. Adams, 383 
 
 Steele v. Kinkle, 198, 241 
 
 Steele v. Mitchell, 148 
 
 Steinor v. Baughman, 326, 348, 492 
 
 Steiner v. Zwickey, 47 
 
 Steinhauer v. Witman, 634, 639, 641 
 
 Stelzer v. La Rose, 433, 443 
 
 Step V. Alkire, 468 
 
 Stephen's Appeal, 482, 636, 739 
 
 Stephens v. Ells, 77 
 
 Stephens v. Evans, 422 <• 
 
 Stephenson v. Harrison, 224 
 
 Sterling v. Peet, 156, 157, 270, 849, 380 
 
 Sternberg v. McGovern, 473 
 
 Stevans v. Evans, 272 
 
 Stevens v. Banta, 716 
 
 Stevens v. Guppy, 188 
 
 Stevens v. Hampton, 58 
 
 Stevens v. Jack, 408 
 
 Stevens v. Van Ness, 557 
 
 Stevenson v. Buxton, 465 
 
 Stevenson v. Loehr, 840, 341, 709, 715,. 
 
 750 
 Stevenson v. Mathers, 485 
 Stewart v. Anderson, 498, 515 
 Stewart v. Conyngham, 700 
 Stewart v. Devine, 712 
 Stewart v. Drake, 304, 311, 343, 855, 886 
 Stewart v. Insall, 651 
 Stewart v. Noble, 230 
 Stewart v. Stewart, 805 
 Stewart v. West, 146, 263, 330, 341, 849, 
 
 415 
 Stiger V. Bacon, 789, 791 
 Stiles V. Winder, 543 
 Stinchfleld v. Little. 156 
 Stingle V. Hawkins, 305 
 Stinson v. Sumner, 305, 510 
 Stipe V. Stipe, 350, 355 
 St. John V. Palmer, 345, 347 
 St. Louis V. Bissell, 313 
 St. Mary's Ch. v. Stockton, 73,S, 736, 
 
 735 
 Stock V. Aylward, 489 
 Stockett V. Goodman, 53 
 Stockham v. Cheney, 589 
 Stockton V.' Cook, 195, 197, 785 
 Stockton V. George, 199 
 Stockton V. Union Oil Co., 773 
 Stookwell V. Couillard, 338 
 Stoddard v. Smith, 559, 769, 773 
 Stokely v. Trout, 375 
 Stokes V. Johnson, 775 
 Stokes V. Jones, 500 
 Stone V. Buckner, 197, 425, 481, 458 
 Stone V. Darnell, 137 
 Stone V. Gover, 584, 588 
 Stone V. Hale, 533, 540 
 
Ix 
 
 TABLE OF CASES. 
 
 Stone V. Hooker, 348 
 
 Stone T. Lord, 206, 457 
 
 Stone V. Sprague, S04 
 
 Stone V. Toung, 11 
 
 Stnney v. Shultz, 125, 131 
 
 Storrs V. Barker, 813 
 
 Story V. Conger, 36, 616 
 
 Stout V, Gully, 90 
 
 Stout V. Jackson, 215, 319, 330, 373 
 
 Stow V. Stevens, 36 
 
 Stowell V. Bernett, 366 
 
 Stowell V. Haslett, 534 
 
 Stowell V. Robinson, 741 
 
 Strain v. Huff, 433 
 
 Strange v. Watson, 463 
 
 Stratton v. Kennard, 616 
 
 Strawn v. Strawn, 514 
 
 Strayn v. Stone, 589 
 
 Streaper v. Fisher, 364 
 
 Streeper v. Abeln, 314 
 
 Streeter v. Henley, 433 
 
 Streeter v. lUsley, 715 
 
 Strickland v. Draughan, 53 
 
 Strike's Case, 668, 669 
 
 Strodes v. Patton, 83 
 
 Strohauer v. Voltz, 283 
 
 Strong V. Downing, 240, 433, 784 
 
 Strong V. Lord, 237, 589 
 
 Strong V. Strong, 234 
 
 Strong V. Smith, 256 
 
 Strong V. Waddell, 437, 481, 524, 573, 
 
 617 
 Stroud V. Kasey, 137 
 Strouse v. Drennan, 101 
 Stryker v. Vanderbilt, 74 
 Stuart V. Button, 70 
 Stuart V. Nelson, 343 
 Stubbs V. Page, 370 
 Sturtevant v. Jaqvies, 709, 734 
 Stuttv. Bldg. Asson., 389 
 Stutts V. Browne, 137 
 Styes V. Robbins, 547 
 Styles V. Blume, 464 
 Sugg V. Stone, 466 
 Summerall v. (3raham, 584 
 Sumner v. Barnard, 499 
 Sumner v. Rhodes, 534 
 Sumner v. Sessions, 106 
 Sumner v. Williams, 153, 155, 270, 393, 
 
 396 
 Sumter v. Welch, 343, 453 
 Sunderland v. Bell, 433 
 Surget V. Arighi, 338 
 Susquehanna Coal Co. v. Quick, 360, 
 
 371 
 Sutherland v, BcLeon, 95 
 Sutton V. Baillie, 814, 335 
 Sutton v.. Page, 313 
 Sutton V. Schonwald, 91, 106 
 Sutton V. Sutton, 37, 132, 791, 805 
 Suydam v. Jones, 281, 861, 862, 365. 
 
 370, 371, 384 
 SwafEord v. Whipple, 374, 373, 383 
 Swaggerty v. Smith, 140, 141 
 Swain V. Burnett, 468, 690 
 
 Swain v. Burnley, 794 
 
 Swain v. Fidelity Ins. Co., 716 
 
 Swaisland v. Dearsley, 30, 33 
 
 Swan V. Drury, 20, 33, 35, 194, 304 
 
 Swartz V. Ballou, 400 
 
 Swasey v. Brooks, 262, 858, 860, 410 
 
 Swayne v. Lyon, 714 
 
 Swenk v. Stout, 405, 411 
 
 Sweem v. Steele, 311, 213, 233, 280 
 
 Sweet V. Brown, 338, 519 
 
 Sweetser v. Lowell, 517 
 
 Sweetzer v. Hummel, 205, 307 
 
 Swepson v. Johnson, 458, 473 
 
 Swett V. Patrick, 379, 397, 400, 401 
 
 Swiggart v. Harber, 88, 96 
 
 Swihart v. Cline, 557 
 
 Swindell v. Richey, 569 
 
 Syme v. Johnston, 747 
 
 Syme v. Trice, 106 
 
 Symms v. James, 38, 30 
 
 T. 
 
 Tabb V, Binford, 819, 835 
 
 Taber v. Shattuck, 541 
 
 Taft V. Kessel, 36, 589, 593, 593, 594, 
 
 603 
 Taggart v. Risley, 494, 521 
 Taggart v. Stanbury, 154, 155 
 Taintor v. Hemmingway, 38 
 Talbot V. Bedford, 342, 409, 412 
 Talbot V. Hooser, 60 
 Talbot V. Sebree, 665 
 Tallmadge v. Wallis, 335, 425, 428, 440, 
 
 441, 663 
 Tallman v. Green, 241, 490, 491 
 Tankersly v. Graham, 421, 584 
 Tanner v. Levingston, 373, 392 
 Tapley v. Lebaume, 370 
 Tapp V. Beverley, 41 
 Tapp V. Nock, 164, 744, 753 
 Tarbell v. Tarbell, 399 
 Tarpley v. Poage, 449 
 Tarlton v. Daily, 451 
 Tarwater v. Davis, 34 
 Tatev. Anderson, 140 
 Taul V. Bradford. 455, 570 
 Tavener v. Barrett, 148, 153 
 Taylor v. Barnes, 238 
 Taylor v. Davis, 156 
 Taylor v. Debar, 417 492 
 Taylor v. Fleet, 191 
 Taylor v. Gilman, 282, 396 
 Taylor v. Harrison, 144 
 Taylor v. Heitz, 393, 308, 315 
 Taylor v. Holter, 400 
 Tavlor v. Johnston, 206, 744 
 Taylor v. Kelly, 466 
 Taylor v. Leith, 347 
 Taylor v. Longworth, 206, 751 
 Taylor v. Lyon, 423, 604, 784, 787 
 Taylor v. Martindale, 30, 689 
 Taylor v. Porter, 47, 331, 323, 665 
 Taylor v. Preston, 38 
 Taylor v. Rowland, 464, 465 
 
TABLE OF CASES. 
 
 M 
 
 Taylor v. ShufEold, 515 
 Taylor v. Stewart, 414 
 Taylor v. Wallace, 383 
 Taylor v. Williams, 35, 1Q4, l^il, 690, 
 
 691, 684 
 Teague v. Wade, 753 
 Teal V. Langdale, 301 
 Teal V. Woodworth, 514 
 Tederall v. Bouknight, 103 
 TefEt V. Munson, 503 
 Templeton v. Falls Lumber Co., 115 
 Templeton v. Jackson, 648 
 Templeton v. Kramer, 435 
 Ten Broeck v. Livingston, 769 
 Tendring v. London, 457, 796 
 Tennell v. Dewilt, 665 
 Tennell v. Roberts, 665 
 Terrell v. Parrar, 774 
 Terrell v. Herron, 619 
 Terrett v. Imp. Co., 380 
 Territt v. Taylor, 501 
 Terry v. Cutter, 139, 180 
 Terry v. Drabenstadt, 389, 397, 400, 401, 
 
 403 
 Terry v. George, 305 
 Terry v. Westing, 731 
 Terte v. Maynard, 478 
 Tevis V. Richardson, 700, 713 
 Texas Lumber Mfg. Co. v. Braacli, 180 
 Tex. Ry. Co. v. Gentry, 436 
 Thacker v. Booth, 700 
 Thackeray v. Wood, 147 
 Tharin v. Pickling, 30 
 Thayer v. Clemence, 306, 380 
 Thayer v. Palmer, 378, 333 
 Thayer v. Sherifle, 119 
 Thayer v. Torrey, 146 
 Thayer v. Wendell, 155 
 Thayer v. White, 34, 670 
 Thieler v. Richardson, 497 
 Thomas v. Bland, 363 
 Thomas v. Bartow, 33 
 Thomas v. Coultas, 333, 350 
 Thomas v. Davidson, 78, 81, 764 
 Thomas v. Deriug, 475 
 Thomas v. Dockins, 541 
 Thomas v. Pleming, 691 
 Thomas v. Glazener, 118, 133 
 Thomas v. Harris, 686, 637 
 Thomas v. Meier, 65 
 Thomas v. Perry, 358 
 Thomas v. Phillips, 781 
 Thomas v. Powell, 616 
 Thomas v. St. Paul's Ch., 471 
 Thomas v. Schee, 160 
 Thomas v. Stickle, 348, 353, 354, 357, 
 
 531 
 Thomas v. Wyatt, 45 
 Thompson v. Adams, 488 
 Thompson v. Avery, 691 
 Thompson v. Christian, 431, 634 
 Thompson v. Dallas, 188, 585, 737 
 Thompson v. Doe. 99 
 Thompson v. Gould, 566 
 Thompson v. Guthrie, 313, 331, 373, 398 
 
 Thompson v. Hart, 99 
 Thompson v. Hawley, 33, 35 
 Thompson v, Jackson, 811 
 Thompson v. Kilcrease, 333 
 Thompson v. Lee, 666 
 Thompson v. Marshall, 539, .540 
 Thompson v. McCord, 453 
 Thompson v. Murrill 514 
 Thompson v. Miles, 557 
 Thompson v. Milliken, 700 
 Thompson v. Morrow, 893 
 Thompson v. Munger, 110, 111 
 Thompson v. Sanders, 364 
 Thompson v. Shattuok, 363 
 Thompson v. Shepherd, 431 
 Thompson v. Shoemaker, 34, 489 
 Thompson v. Thompson, 44, 388 
 Thompson v. Tolmie, 98, 99, 101 
 Thorn v. Mayer, 738 
 Thorndike v. Norris, 494 
 Thornton v. Mulquinne, 103 
 Thorp v. Keokuk Coal Co., 447, 616 
 Thredgill v. Pintard, 482, 483 
 Threlkeld v. Campbell, 78, 80, 141 
 Threlkeld v. Pitzhugh, 315, 373, 374, 
 
 375 
 Thresher v. Pinkard, 731 
 Thrift V. Fritz, 138 
 Thurman v. Cameron, 63, 63 
 Thurmond v, Bronnson, 156 
 Thurmond v. Robertson, 335 
 Thweatt v. McLeod, 638 
 Tibbetts v. Ayers, 440, 441, 444 
 Tibbetts v. Leeson, 388 
 Tiernan v. Roland, 738, 739, 755 
 Tilley v. Bridges, 109 
 Tilley v. Thomas, 749, 750 
 Tillotson V. Boyd, 361 
 Tillotson V. Gesner, 682, 764 
 Tillotson V. Grapes, 428. 439, 643 
 Tillotson V. Kennedy, 517 
 Tillotson V. Pritchard, 369, 878 
 Tilton V. Emery, 495 
 Timms v. Shannon, 434, 435, 578, 586 
 Tindal v. Cobham, 584, 661 
 Tindall v. Conover, 38, 34, 35 
 Tinney v. Ashley, 88, 307 
 Tiuney v. Watson, 131 
 Tirnbey v. Kinsey, 227 
 Tison V. Smith, 741, 755 
 Tobin v. Bell, 33 
 Tod v. Gallaher, 487 
 Todd v, Down, 83 
 Todd V. Hoggart, 561 
 Todd V. Union Dime Sav. Bank, 674, 
 
 731 
 ToUensen v. Gunderson, 646 
 Tompkins v. Hyatt, 188, 191, 585, 663, 
 
 758 
 Tomlin v. McChord, 730 
 Tomlinson v. Savage, 701, 774 
 Tone V. Brace, 783 
 Toney v. Toney, 558 
 Tong V. Matthews, 373 
 Toops V. Snyder, 587 
 
Ixii 
 
 TABLE OF OASEa 
 
 Toole V. Toole, 718, 759 
 
 Tooley v. Chase, 530 
 
 Tooley v. Kane, 88 
 
 Topliff V. Atl. L. & Imp. Co. 732 
 
 Topp V. White, 244, 468, 557, 692 
 
 Torrance v. Bolton, 27, 28, 80 
 
 Tourville v. Naish, 431, 448 
 
 Towles v. Turner, 126 
 
 Town V. Needham, 132 
 
 Towns V. Barrett, 555 
 
 Townsend v. Hubbard, 55 
 
 Townsend v. Lewis, 747 
 
 Townsend v. Morris, 320, 335, 411 
 
 Townsend v. Smith, 140 
 
 Townsend v. Tufts, 201 
 
 Townsend v. Ward, 283 
 
 Townsend v. Weld, 281, 287, 384 
 
 Townsheud v. Goodfellow, 726, 755 
 
 Tracy v. Gunn, 223 
 
 Trapier v. Waldo, 77, 91 
 
 Trask v. Vinson, 213, 439, 459 
 
 Traver v. Halstead, 35, 204 
 
 Treat v. Orono, 650 
 
 Tremaine v. Lining, 148 
 
 Treptow v. Buse, 118 
 
 Trevino v. Cantu, 479, 551, 805 
 
 Trevivan v. Lawrence, 503 
 
 Trice V. Kayton, 299 
 
 Trinity Church v. Higgins, 28' 
 
 Trigg V. Reade, 810 
 
 Troost V. Davis, 487 
 
 Troutman v. Gowing, 472 
 
 Trull V. Eastman, 499, 517, 533 
 
 Trulock V, Peeples, 63 
 
 Trumbo v. Lockridge, 423, 793 
 
 Trustees v. Lynch, 566, 730 
 
 Trustees N. Y. Pub. School, In re, 707 
 
 Truster v. Snelson, 276 
 
 Trutt V. Spott, 323 
 
 Tubbs V, Gatewood, 67 
 
 Tucker v. Clarke, 508 
 
 Tucker v. Gordon, 126, 650, 651 
 
 Tucker v. Woods, 35, 730 
 
 Tudor V. Taylor, 140 
 
 Tufts V. Adams, 361, 388, 306, 313, 344, 
 
 380 
 Tuite V. Miller, 259, 347, 490 
 Tull V. Royston, 290 
 TuUy V. Davis, 63 
 Turk V, Skiles, 89, 137 
 Turnbull v. Gadsden, 653 
 Turner v. Beaurain, 30 
 Turner v. Goodrich, 354, 357, 385, 400 
 Turner v. Harvey, 341 
 Turner v. McDonald, 693, 703 
 Turner v. Miller, 401 
 Turner v. Nightingale, 557 
 Turner v. Reynolds. 730 
 Turner v. Turner, 813 
 Tinney v. Bast Warren Co., 61 
 Turney v. Hemminway, 569 
 Tustin V. Paught, 46 
 Twambly v. Henley, 255 
 Tweddell v. Tweddell, 283 
 Tweed v. Mills, 22, 29, 38 
 
 Twohig v. Brown, 197, 450, 570, 571 
 
 Tybee v. Webb, 616 
 
 Tyler v. Young, 34, 439 
 
 Tymason v. Bates, 326 
 
 Tyree v. Williams, 721 
 
 Tyson v. Belcher, 106 
 
 Tyson v. Brown, 115 
 
 Tyson v. Eyrick, 213, 232 
 
 Tyson v. Passmore, 459 
 
 u. 
 
 Uhl V. Langhran, 716 
 Uhler V. Hutchinson, 59 
 Underwood v. Birchard, 337 
 Underwood v, Parker, 591 
 Underwood v. West, 661 
 Union Nat. Bank v. Pinner, 789, 791 
 Union Pac. R. Co. v. Barnes, 616, 800 
 Union Safe Dep. Co. v. Ohisholm, 159 
 United States v. Bank of Georgia, 616 
 United States v. Cal., etc., Land Co., 53 
 United States v. Duncan, 133 
 Universalist Soc. v. Dugan, 726 
 University v. .loslyn, 338, 345 
 University v. Lassiter, 106 
 Updike V. Abel, 248 
 Upham V. Hamill, 119, 121 
 Upperton v. Nicholson, 163 
 Upshaw V. Debow, 345 
 Upson V. Howe, 93, 104 
 Upton V. Trebilcook, 349 
 Urmston v. Pate, 616, 805 
 
 Vail V. Nelson, 37, 193 
 
 Valle V. Clemens, 530 
 
 Valle V. Fleming, 136, 138, 487 
 
 Vanada v. Hopkins, 148, 154 
 
 Van Amringe v. Morton, 181 
 
 Van Benthuysen v. Crasper, 579 
 
 Vance v. Pore, 52 
 
 Vance v, House, 600, 607, 701, 784, 785 
 
 Vance v. Schuyler, 57, 60 
 
 Vance v. Shroyer, 591 
 
 Vancouver v. Bliss, 188 
 
 Vandever v. Baker, 81, 88 
 
 Vanderkarr v. Vanderkarr, 341 
 
 Van Epps v. Harrison, 663 
 
 Van Epps v, Schenectady, 35, 150, 155, 
 
 258, 361, 773 
 Van. Hoesen v. Benham, 358 
 Van Home v. Crain, 361 
 Van Lew v. Parr, 452, 453, 608, 647 
 Van Ness v. Bank, 58 
 Van Nest v. Kellum, 272 
 Van Nostrand v. Wright, 257 
 Vannoy v. Martin, 130 
 Van Rensselaer v. Kearney, 393, 531 
 Van Rensselaer v. Van Rensselaer, 347 
 Van Riper v. Williams, 784 
 Van Riswick v. Wallach, 643 
 Vansooyoo v. Kemler, 140, 141 
 Van Waggoner v. McEwen, 431. 784 
 
TABLE OF CASES. 
 
 bdii 
 
 Van "Wagner v. Van Nostrand, 257, 301, 
 
 322 
 Van Winkle v. Earl, 283, 284 
 Vardaman v. Lawson, 23, 36, 148 
 Varick v. Brlggs, 867 
 Varick v. Edwards, 519 
 Vather v. Hinds, 179 
 Vather v. Lytle, 118, 141 
 Vaughn v. Stuzaker, 259 
 Veeder v. Fonda, 88 
 Verdin v. Slocum, 128 
 Vernol v. Vernol, 194, 628 
 Vest V. "Weir, 118, 572 
 Vick V, Percy, 424, 793 
 Viele V. R. Co., 189 
 Vielle V. Osgood, 44 
 Viuing V. Leeman, 422, 591, 661 
 Voorhees v. Bank. 88, 94 
 Voorhees v. De Meyer, 469, 476, 606, 
 
 746, 747 
 Voorhis v. Bank, 90 
 Voorhis v. Forsyth, 292, 316 
 Vose V, Bradstreet, 51 
 Vought V. Willliams, 687, 689, 706 
 Vreeland v. Blauvelt, 502, 674, 678, 724 
 Vrooman v. Phelps, 649 
 
 w. 
 
 "Wachendorf v. Lancaster, 83 
 
 Wacker v. Straub, 894, 426 
 
 Waddell v, Wolfe, 38, 39 
 
 Wade V. Comstock, 411 
 
 Wade V. Greenwood, 701 
 
 Wade V. Killough, 206, 584 
 
 Wade V. Lindsay, 500 
 
 Wade V. Percy, 790 
 
 Wade V. Thurman, 639, 648 
 
 Wadhams v. luness, 389 
 
 Wadhams v. Swan, 258 
 
 Wadleigh v. Glines, 513, 514 
 
 Wadsworth v. Wendell, 74 
 
 Wagenblast v. Washburn, 538 
 
 Waggle V. Worthy, 335 
 
 Waggoner v, Waggoner, 695 
 
 Wagner v. Hodge, 708, 719, 723 
 
 Wagner v. Perry, 198, 238, 244, 731 
 
 Wailes v. Cooper, 424, 431, 792, 793 
 
 Wait V. Maxwell, 257 
 
 Wait V. Smith, 170 
 
 Wakeman v. Dutchess of Rutland, 147 
 
 154, 805 
 Walbridge v. Day, 118, 120, 650 
 Walden v. Gridley, 118, 141, 142 
 Waldo V. Long, 311, 396 
 Waldrou v. McCarty, 353, 855 
 Waldron v. Zollikoffer, 37 
 Wales V. Bogne, 93 
 Walke V. Moody, 130 
 Walker v. Barnes, 777 
 Walker v. Constable, 563, 597 
 Walker v. Deaver, 364, 294, 304, 312, 
 
 333 
 Walker v. France, 628, 640 
 Walker v. Gilbert, 424, 607 
 
 Walker v. Hall, 333, 512 
 
 Walker v. Johnson, 595 
 
 Walker v. Moore, 211, 314, 219 
 
 Walksr v. Ogden, 482, 666 
 
 Walker v. Quigg, 194 
 
 Walker v. Ruffuer, 107 
 
 Walker v. Towns, 582 
 
 Walker v. Wilson, 257, 426 
 
 Wall V. Mason, 487 
 
 Wallace v. Harmsted, 181 
 
 Wallace v. Maxwell, 515 
 
 Wallace v. McLaughlin, 462, 468, 561 
 
 Wallace v. Minor, 500 
 
 Wallace v. Talbot, 390 
 
 Walling V. Kinnaird, 306 
 
 Wallison v. Watkins, 437 
 
 Walsh V. Barton, 670, 735 
 
 Walsh V. Dunn, 397, 407 
 
 Walsh V. Hall, 235, 651 
 
 Walmsley v. Stalnaker, 794 
 
 Walter v. De Graaf, 46, 716 
 
 Walter v. Johnston, 427 
 
 Walters v. Miller, 300 
 
 Walton V. Bonham, 667, 784 
 
 Walton V. Cox, 137, 333, 403, 408, 684, 
 
 685, 693, 707 
 Walton V. Reager, 110, 112 
 Walton V. Waterhouse, 495 
 Waltz V. Barroway, 99 
 Wamsley v. Hunter, 559 
 Wanner v. Sisson, 534 
 Ward V. Ashbrook, 373, 394, 848 
 Ward V. Bartholomew, 155 
 Ward V. Packard, 241 
 Ward V. Mcintosh, 414 
 Ward V. Williams, 110, 112 
 Ward V. Wiman, 65, 239, 650 
 Warde v. Dixon. 679 
 Warden v. Fosdick, 13, 628, 650 
 Ware v. Houghton, 424 
 Ware v. Weatherall, 375, 881 
 Waring v. Ward, 288 
 Wark V. Willard, 506 
 Warner v. Hatfield, 34, 730 
 Warner v. Helm, 123 
 Warner v. Sisson, 533 
 Warren v. Banning, 678, 684, 686, 736 
 Warren v. Carey, 340 
 Warren v. Richardson, 183 
 Warren v. Richmond, 194, 199 
 Warren v. Wheeler, 313 
 Warwick v. Norvell, 788 
 Washer v. Brown, 484 
 Wash. City Bank v. Thornton, 147, 279, 
 
 304, 324 
 Waters v. Mattingly, 803 
 Waters v. Thorn, 187 
 Waters v. Travis, 469, 778 
 Watkins v. Holman, 735 
 Watkins v. Hopkins, 586 
 Watkins v. Warsell, 493 
 Watkins v. Wimings, 133 
 Watson V. Baker. 348 
 Watson V. Church, 714 
 Watson V. Hoy, 78 
 
Ixiv 
 
 TABLE OF CASES. 
 
 Watson V. Kemp, 593 
 
 Watson V. Reissig, 123 
 
 Watt V. Rogers, 191 
 
 Watts V. Fletcher, 301 
 
 Watts V. Holland, 690, 759 
 
 Watts V. Parker, 255 
 
 Watts V. Waddle, 665, 725, 758 
 
 Watts V. Wellman, 284 
 
 Waugh V. Land, 158 
 
 Way V. Raymond, 202 
 
 Wead V. Larkin, 369 
 
 Weatherford v. James, 476 
 
 Weaver V. Wilson, 423, 605 
 
 Webbv. Alexander, 353, 413 
 
 Webb V. Chisholm, 674 
 
 Webb V, Coons, 137 
 
 Webb V. Hufe, 68 
 
 Webb V. Hughes, 192, 749 
 
 Webb V. Kirby, 28 
 
 Webb V. Pond, 280 
 
 Webb V. Splcer, 562 
 
 Webb V. Stephenson, 193, 743, 755 
 
 Webber v. Cox, 137 
 
 Webber v. Webber, 363 
 
 Weber v. Anderson, 385, 389 
 
 Webster v. Conley, 154 
 
 Webster V. Hall, 65 
 
 Webster v. Haworth, 125, 648 
 
 Webster v. Kings Co. N. Co., 568, 681, 
 
 738, 742, 775 
 Weddall v. Nixon, 681 
 Wedel V. Herman, 73 
 Weed Machine Co. v. Emerson, 510 
 Weeks v. Toms, 714 
 Weems v. McCaughan, 330 
 Weidler v. Bank, 118, 125, 641 
 Wrlghtman v. Reynolds, 513 
 Wrightraan v. Spoflord, 616 
 Weiustock v. Levison, 660, 716 
 Welch V. Davis, 157 
 Welch V. Dutton, 25 
 Welch V. Hoyt, 113 
 Welch V. Lawson, 310 
 Welch V. Matthews, 758 
 Welch V. Sullivan, 63 
 Welch V. Watkins, 559 
 Weld V. Traip, 293 
 Wellborn v. Finley, 494 
 Wellborn v. Schist, 459 
 Welles V. Cole, 59 
 Wellman v. Dismukes, 424, 559 
 Wells V. Abernathy, 313. 218 
 Wells v. Day, 19, 201, 773 
 Wells V. Lewis. 754 
 Wells V. Ogden, 539 
 Wells V. Smith, 307 
 Wells V. Walker, 179 
 Wells V. Yates, 537 
 Welsh V. Bayard, 465 
 Welsh V. Duttoii, 523 
 Welshbillig v. Drenhart, 527 
 Wendell v. North, 408 
 Wentworth v. Goodwin, 434 
 West V. Shaw, 559 
 West v. Spaulding, 279 
 
 West V. Stewart, 358, 388 
 
 West V. West, 377 
 
 Westall v. Austin, 746 
 
 West B'way Real Estate Co. v. Bayliss, 
 
 625 
 Westbrook v. McMillan, 453 
 AVestern Mining Co. v. Peytona Coal 
 
 Co., 517, 518 
 Westervelt v. Mattheson, 468 
 Westhafer v. Koons. 714 
 Westheimer v. Reed, 523 
 Westrope v. Chambers, 263, 853 
 Wetherbee v. Bennett, 395, 315 
 Wetherell v. Brobst, 468 
 Wetmore v. Bruce, 557, 564, 566. 730' 
 AVetzel v. Richcreek, 355, 345, 387 
 Weyand v. Tipton, 736 
 Whallon v. KaufCman, 337 
 Whatley v. Pattou, 378 
 Wheat V. Dotson, 421, 441, 595, 661 
 Wheatley v. Slade, 467 
 Wheaton v. Wheaton,- 813 
 Wheeler v. Hatch, 255, 270, 889, 494 
 Wheeler v. Sohier, 364, 365 ", 
 
 Wheeler v. Standley, 424, 801 , 
 
 Wheeler v. Styles, 313, 386, 524 ' 
 
 Wheeler v. Tracy, 20, 730 
 Wheeler v. Wayne Co., 333, 880 
 Wheelock v. Overshiner, 409 
 Wheelock v. Thayer, 370 
 Whisler v. Hicks. 433, 437, 446, 448 
 Whitbeck v. Cook, 259, 298 
 Whitbeck v. Waine, 430 
 White V. Brocaw, 329, 519 
 White V. Dobson, 468 
 White V. Foljambe, 134, 154, 706 
 White V. Furtzwangler, 428 
 White V. Graves, 180 
 White V. Hardin, 661 
 White V. Lowery, 636, 650 
 White V. Mooers, 458 
 White V. Park, 140 
 White V. Patton, 500, 503 ' 
 
 White V. Presly, 364 
 White V. Sayre, 54 
 White V, Seaver, 647 
 White V. Stevens, 268 
 White V. Stretch, 789 
 White V. Sutherland, 234 
 White V. Tucker, 221, 665 
 White V. Whitney, 344,' 364, 868, 379, 
 
 380 
 White V. Williams, 407 
 Whitehead v. Brown, 532 
 Whitehead v. Carr, 150 
 Whitehill v. Gotwalt, 330, 332 
 Whitehurst v. Boyd, 34. 559 
 Whiteman v. Castleburg, 587 
 Whitemore v. Whitemore, 773 
 Whitesides v. Cooper, 334 
 Whitesides v. Jennings, 313 
 Whitney v. Brooks, 141 
 Whitney v. Dewey, 156, 894 
 Whitlock V. Denlinger, 233, 422, 591, 
 
 604 
 
TABLE OF CASES. • 
 
 Ixv 
 
 Whitlock, Ex parte, 717 
 
 Whitman v. Westman, f)44 
 
 Whitmoi'is V. Parks, 132 
 
 Whitney v. Allaire, 14, 190, 629, 050 
 653, 654 
 
 Whitney v. Arnold, 70 
 
 Whitney v. Cochran, 588 
 
 Whitney v. Dinsmore, 261, 305, ;!55 
 360 
 
 Whitney v, Lewis, 435, 439, 440 
 
 Whitney v. Railroad Co., 295 
 
 Whitney v. Smith, 539 
 
 Whittaker v. Kone, 258 
 
 Whittaker v. Miller, 44 
 
 Whittemore v. Whittemore, 467 
 
 Whittemore v. Parrington, 531, 616 
 624, 806 
 
 Whittington v. Corder, 21 
 
 Whitworth v. Stuckey, 453, 593, 608 
 614 
 
 Whitzman v. Hirsh, 362, 382 
 
 Wickham v. Ernest, 584 
 
 Wickham v. Bvered, 661 
 
 Wickliff V. Clay, 557, 665, 666 
 
 WicklifE V. Lee, 661 
 
 'Vi''icklow V. Lane, 495 
 
 Wickman v. Robinson, 594 
 
 Widmer v. Martin, 762 
 
 Wieland v. Renner, 700 
 
 Wiesner v. Zaun, 494 
 
 Wiggins V. McGimpsey, 35, 194, 198, 
 569, 580, 585 
 
 Wight V. Shaw, 519 
 
 Wightman v. Reside, 767 
 
 Wilburn v. McCalley, 115 
 
 Wilcox V. Latin, 186, 662 
 
 Wilcox V. Lucas, 543 
 
 Wilcox V. Musche, 307 
 
 Wilcoxon V. Galloway, 468 
 
 Wilde V. Port, 183, 219 
 
 Wilder v. Ireland, 254, 258, 336, 40:!, 
 407, 415 
 
 Wildjr V. Smith, 793 
 
 Wiley V. Pitzpatrick, 603, 785 
 Wiley V. Howard, 340, 584, 591. 744 
 Wiley V. White, 134, 597, 617, 633 
 Wilgus V. Hughes, 479 
 Wilhelm v. Pimple, 202, 323, 569, 668 
 Wilkerson v. Allen, 79 
 Wilkerson v. Chadd, 423 
 Wilkins v. Hogue, 425, 794 
 Wilkins v. Irvine, 569 
 Wilkinson v. Green, 481 
 Wilkinson v. Roper, 51 
 Willan V. Willan. 798, 816 
 Willard v. Twitchell, 254 
 Wilier V. Weyand, 473 
 Willets V. Burgess, 307, 312 
 Williams v. Beeman, 360, 382, 394 , 
 Williams v. Burg, 364, 400, 404, 407 
 Williams v. Burrell, 387, 896 
 Williams v. Carter, 664, 697 
 Williams v. Cudd, 547 
 Williams v. Cummings, 127 
 Williams v. Daly, 164, 165 
 
 Williams v. Edwards, 467, 475, 476, 690, 
 
 691 
 Williams v. Powle, 380 
 Williams v. Pryburger, 430 
 Williams v. Glenn, 78, 81, 87 
 Williams v. Glenton, 228 
 Williams v. Hathaway. 624 
 Williams v. Hogan, 255, 258 
 Williams v. Johnson, 117 
 Williams v. Lee, 783 
 Williams v. Mausell, 458 
 Williams v. McDonald, 109 
 Williams v. Mitchell, 667, 800 
 Williams v. Pendleton, 480 
 Williams v. Peters, 494, 762 
 Williams v. Pope, 472 
 Williams v. Potts, 35 
 Williams v. Reed, 622 
 Williams v. Rogers, 665, 667, 669 
 Williams v. Schembri, 716 
 Williams v. Seawell, 718 
 Williams v. Shaw, .348, 403 
 Williams v. Thomas. 244, 252, 582 
 Williams v. Wetherbee, 262, 365, 373, 
 
 404, 410, 414 
 Williams v. Williams, 494, 665 
 Williamson v. Banning, 731 
 Williamson v, Pield, 78, 712 
 Williamson v. Johnston, 121 
 Williamson v. Raney, 576, 661 
 Williamson v. Test, 383 
 Williamson v. Williamson, 397, 411 
 Willis V. Saunders, 539, 541, 544 
 Willison V. Watkins, 482 
 Wills V. Porter, 186 
 Wills V. Primm, 411, 413 
 Wills V. Slade, 699 
 Wills V. Van Dyke, 119 
 Willson V. Willson, 270, 309, 373, 393 
 Wilmot V. Wilkinson, 28, 201 
 Wilsey v. Dennis, 145, 695, 734 
 Wilson V. Breylogle, 654 
 Wilson V. Bumfield, 473, 773 
 Wilson V. Carey, 31 
 Wilson V. Cochran, 158, 295, 358, 370, 
 
 633, 634, 636, 638, 639 
 Wilson V. Cox, 468 
 Wilson V. Deen, 807 
 Wilson V. Forbes, 357, 364, 270, 371 
 Wilson V. Getty, 35, 36, 565 
 Wilson V. Higbee, 344, 632 
 Wilson V. Holden, 16 
 Wilson v. Holt, 136, 138 
 Wilson \ . Inloes, 51 
 Wilson V. Irish, 144, 341, 643 
 Wilson V, Jefiries, 694 
 Wilson V. Johnson, 52 
 Wilson V. Jordan, 421 
 Wilson V. King, 544 
 Wilson V. Mason, 179 
 Wilson V. McElwee, 404 
 Wilson V. McNeal, 73 
 Wilson V. McVeagh, 726 
 Wilson V. Parshall, 276 
 Wilson V, Peele, 335, 394 
 
Jxvi 
 
 TABLE OF CASES. 
 
 Wilson V. Eaben, 79 
 
 Wilson V. Robertson, 314 
 
 Wilson V. Shelton, 383 
 
 Wilson V. Smith, 90, 105 
 
 Wilson V. Spencer, 311, 313 
 
 Wilson V. Stewart, 547 
 
 Wilson V. Tappan, 696, 733, 747 
 
 Wilson V. Taylor, 366 
 
 Wilson V, Traer, 58 
 
 Wilson V, Wetherly, 483 
 
 Wilson V. White, 111, 114, 713 
 
 Wilson V. Widenham, 355, 369 
 
 Wilson V. Williams, 473 
 
 Wilson V. Wood, 144, 145 
 
 Wilson's Appeal, 634, 638, 640 
 
 Wilson's Case, 174 
 
 Wilt V. Franklin, 383 
 
 Wiltsie V. Shaw, 735 
 
 Wilty V. Hightower, 341, 345, 355, 607, 
 
 643, 793 
 Wimberg v. Schwegeman, 591, 784 
 Wimberly v. Collier, 401, 405 
 Winnns v. Huyck, 536 
 Winch V. Bolton, 433 
 Windle v. Bonebrake, 486 
 Winfrey v. Drake, 508, 799 
 Wing V. Dodge, 109 
 Wright V. Hamilton, 469, 473 
 Wingo V. Brown, 119, 131, 135, 494 
 Winkler v. Higgins, 63 
 Winne v. Reynolds, 571, 730, 770, 771 
 Winningham v. Pennock, 304, 313 
 Winnipiseogee Paper Co. v. Eaton, 889, 
 
 397 
 Winnipiseogee Lake Mfg. Co. v. Perler, 
 
 530 
 Winslow V. Clark, 138 
 Wlnslow V. Cornell, 137 
 Winslow V. McCall, 345 
 Winstead v. Davis, 484 
 Winter v. Dent, 136 
 Winter v. Elliott, 483 
 Winter v. Stock, 676 
 Wintermute v. Snyder, 818 
 Winton v. Sherman, 306 
 Wise V. Postlewait, 60 
 Wisely v. Findlay. 53 
 Wiswall V. McGowan, 464, 475 
 Witbeck v. Waine, 638 
 Withers v. Baird, 58, 150, 559, 730 
 Withers v. Morell, 786 
 Withers v. Powers, 345 
 Witherspoon v. McCalla, 609 
 Withey v. Munford, 365, 367 
 Withouse v. Schaack, 536, 537 
 Wittbecker v. Waiters, 543 
 Witter V. Biscoe, 148 
 Wofford V. Ashcroft, 785, 789 
 Wohlforth V. Chamberlain, 335, 683 
 Wolbert V. Lucas, 638 
 Wolf V. Fogarty, 63 
 Wolford V. Phelps, 136 
 Wood V. Bibbins, 373 
 Wood V. Colvin, 130 
 Wood V. Downes, 187 
 
 Wood V. Porncrook, 347 
 
 Wood V. Griffith, 467 
 
 Wood V. Johnson, 351 
 
 Wood V. Lewis, 131 
 
 Wood V. Majoribanks, 738 
 
 Wood V. Mann, 78, 180 
 
 Wood V. Perry, 481 
 
 Wood V. Thornton, 391 
 
 Woodbury v. Luddy, 473 
 
 Woodcock V. Bennett, 31, 460, 465 
 
 Woodfolk V. Blount, 630 
 
 Woodhead v. Foulda, 700 
 
 Wooding V. Grain, 747, 753 
 
 Woodruff V. Bunce, 435, 608, 783, 784, 
 787 
 
 Woodrufi V. Depue, 789 
 
 Woodruff V. North, 338, 510, 753 
 
 Woodward v. Allen, 350, 405, 412 
 
 Woodward v. Rogers, 449, 450 
 
 Woodward v. Woodward, 173 
 
 Woodward's App,, 38 
 
 Woodworth v. Jones, 425 
 
 Woolcot V. Peggio, 478 
 
 Wooley V. Hampton, 153 
 
 Wooley V. Hineman, 264, 369, 806 
 
 Wooley V. Newcombe. 274, 276, 277 
 
 Workman v. Mifflin, 340 
 
 Worley v. Northcott, 585 
 
 Wortin v. Howard, 113 
 
 Worthington v. Curd, 197, 287, 787 
 
 Worthington v. Hylj'er, 51 
 
 Worthington v. McRoberts, 81, 88, 109 
 
 Worthington v. Warrington, 38, 323 
 
 Worthy v. Johnson, 157 
 
 Wotton V. Hele, 337, 413 
 
 Wray v. Furniss, 783, 784 
 
 Wright V. Blackley, 584, 744 
 
 Wright V. Carvillo, 13, 638, 639 
 
 Wright V. Delafield, 534, 585 
 
 Wright V. Dickson, 559, 662 
 
 Wright V. Edwards, 91 
 
 — ■ • ■ Griffith, 188 
 Lasselle, 264 
 Nippli. 264, 390, 394 
 Sperry, 368 
 
 Wright V. Swayne, 557 
 
 Wright V. Wells, 59 
 
 Wright V. Wright, 591 
 
 Wright V. Young, 472 
 
 Wuesthoff V. Seymour, 234 
 
 Wyant v. Tuthill, 79 
 
 Wyatt V. Garlington, 594 
 
 Wyatt V. Rambo, 113 
 
 Wyman v. Ballard, 307 
 
 Wyman v. Brigden, 344 
 
 Wyman v. Campbell, 116 
 
 Wyman v. Heald, 598 
 
 Wynn v. Harmon, 519 
 
 Wynne v. Morgan, 747 
 
 Wythe V. Macklin, 649 
 
 Y. 
 
 Yancey v. Lewis, 794 
 Yancey v. Tatlock, 387 
 
 Wright V. 
 Wright V. 
 Wright V. 
 Wright V. 
 
TABLE OF OASES. 
 
 Ixvii 
 
 Yazel v. Palmer, 602 
 
 Yeates v. Prior, 47, 240 
 
 Yocum V. Foreman, 89, 90 
 
 Yoder v. Swearingen, 671 
 
 Yoke V. Gregg, 773 
 
 Yokum V. McBride, 328 
 
 Yokum V. Thomas, 399 
 
 York V. Allen, 435 
 
 York V. Gregg, 650 
 
 Yost V. Devault, 472 
 
 Youmans v. Edgerton, 562 
 
 Young V. Bumpass, 237 
 
 Young V. Butler, 343, 436, 608, 784 
 
 Young V. Clippenger, 339, 516 
 
 Young V. Collier, 747 
 
 Young V. Harris, 233, 590, 592, 596, 647, 
 
 663, 667 
 Young V. Hopkins, 344, 345 
 YouDg V. Lillard, 696 
 
 Young V. Lofton, 445 
 Young V. Lorain, 101, 523 
 Young V. McCherry, 78, 194, 608 
 Young V. McCormick, 784 
 Young V. Paul, 35, 471, 474, 777 
 5foung V. Rathbone, 713 
 Young V. Sincomtie, 584 
 Young V. Stevens, 663 
 Young V. Triplett, 363 
 Young V. "Wright, 36 
 Youngmann v. Linn, 634, 638 
 
 z. 
 
 Zent V. Picken, 255, 257 
 Zibley v. Sears, 472 
 Zollman v. Moore, 813 
 Zorn V. McParland, 759 
 
MARKETABLE TITLE TO REAL ESTATE 
 
 PURCHASERS OF DEFECTIVE TITLES. 
 
 BOOK I. 
 
 OF REMEDIES IN AFFIRMANCE OF THE CONTRACT OF SALE. 
 Of Affiemancb by Peoceedings at Law. 
 
 of proceedings at law while the conteact is executoet. 
 
 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," ' 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.' 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 Co. Inst.345. 
 
 ' 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 EEAL ESTATE. 
 
 sion, the right of the possession and the right of property in one 
 and the same person.' 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 Kens, 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.^ 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, wlio by his contract is entitled to demand a good title, can 
 no more be required to accept the title if ti)e 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.^ 
 
 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 Bl. Com. 195. 
 
 2 2 Warvelle Vend. 649. 
 
 ^ Post, ch. 31. 
 
INTEODUCTQKT. 5 
 
 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.' 
 
 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 ; ^ 
 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,' or for damages 
 for breach of the contract.* 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.^ 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 
 
 iPost, §290, ch. 3L 
 ^ Ch. 3. 
 3 Ch. 34. 
 ■• Ch. 3. 
 5 Ch. 11. 
 
4 MARKETABLE TITLE TO REAL ESTATE. 
 
 awarded the plaintiffs.' In all these cases the purchaser elects to 
 abide by the contract and keep the estate. 
 
 Btit 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 quo, 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.^ 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. Thirdly, the purchaser may hie 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 plaintiff's want of title, 
 provided he has restored, or offers to restore, the premises to the 
 vendor.^ 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-existent, and his choice of the one or the other is to be con- 
 
 ' Chs. 17, 18 and 19. 
 5 Ch. 33. 
 2 Oh. 24. 
 « Ch. 30. 
 
INTEODUCTOET. O 
 
 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 lie may deem it best to restore the 
 estate and have back his purchase money. But wliile 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 considei-ed 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.^ 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.^ 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 ;° that the vendor has the right to perfect 
 the title,* or to require the purchaser to take the title, with compen- 
 sation for defects ; ^ that the purchaser has not placed the vendor 
 
 ' Ch. 10, § 91. 
 « Ch. 10, § 97. 
 3Ch. 8. 
 * Ch. 33. 
 « Ch. 33. 
 
b MARKETABLE TITLE TO EEAL ESTATE. 
 
 in statu quo, and that the positions of the parties with respect to 
 the subject-matter of the contract have so niateriallj changed that 
 it will be impossible to place them in statu quo y ' 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.^ 
 
 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 fraTidulently induced to enter into the contract or to 
 accept a conveyance, or unless tbere 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 m statu 
 quo. We shall see hereafter, however, that there is a tendency in 
 some of the States to modify this rule.^ 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 read}' 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 
 
 ' Chs. 25 and 30. 
 ' Oh. 11, § 104. 
 8 Ch. 26. 
 
INTEODUCTOET. 
 
 applies.' This is the rule which prevails in most of the American 
 States, though in some of them it is qualilied 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 tliose 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, nnless, 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 likelj' 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 tlae 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.* 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, wlien 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 
 
 > Oh. 27. 
 ■^ Ch. 27. 
 
8 MAEKETABLE TITLE TO EEAL ESTATE. 
 
 nominal damages, for breach of the plaintiff's covenants.' These, 
 then, are the remedies of the purchaser at law by way of affirmance 
 of the executed contract. In equity he may file iiis 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.^ And wliere, through error or mistake, the 
 conveyance does not contain such covenants for title as the pur- 
 chaser may demand, he mayiile his bill praying that the conveyance 
 be reformed, so as to express the true intention of the parties.^ 
 
 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, amountts 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 lias been 
 actually or constructively evicted from the premises. This rule, 
 however, has been modilied in some of the States, and the pur- 
 chaser permitted to recover the whole consideration money, pro- 
 vided he has reconveyed the estate to tlie 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 
 breacli 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 mcmey, 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.* But the contrary rule, 
 namely, that a breach of the covenant of seisin is no defense to an 
 action foi- the purchase money unless the defendant has been actu- 
 ally or constructively evicted from the estate is undoubtedly estab- 
 lislied in most of the American States.' 
 
 ■ Ch. 
 
 16. 
 
 = Ch. 
 
 21. 
 
 ^Ch. 
 
 23. 
 
 <C:h, 
 
 2fi. 
 
 »Ch. 
 
 16. 
 
INTEODCCTOEY. iJ 
 
 As to the rescission of an executed contract on the ground of 
 fraud or mistake, it is only necessary to say tliat this is one of the 
 principal heads of equitable jurisdiction. ^ 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 wliicli case there is no adequate remedy upon the cove- 
 nants for title.^ 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." 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 tliat the purchaser accepted a conveyance 
 without covenants for title, or tliat the covenants have not been 
 broken, oi', 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 paramonnt 
 title was acquired by the defendant after the conveyance was exe- 
 cuted, and had, by operation of law, imu-ed 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 pre- 
 sumed to have examined. 
 
 From the foregoing outline of the remedies of the purchaser, 
 and the defenses of the vendor on failure of the title, the utility 
 and convenience of the plan or analysis of this work, end the order 
 in wliich those remedies and defenses are treated, will be perceived. 
 The terra " marketable " or " defective " title, as between vendor 
 and purchaser, is relative as well as substantive, and has reference 
 alike to the remedies of the parties, the incidents of those remedies, 
 
 ' Ch. 35. 
 = Ch. 34. 
 = Ch, 34, § 337. 
 
10 MAKE STABLE TITLE TO KEAL 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 
 co^-enants 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 classiiication is that it 
 will serve to impress upon the mind of the student the cardinal 
 principle that the purchaser cannot, because the title is bad or doubt- 
 ful, escape the obligation his contract, and at the same time retain 
 its benefits. Restitution of the consideration on one side, and of 
 the subject-matter of the contract on the other, is an invariable con- 
 dition precedent to rescission. 
 
CHAPTER II. 
 
 ACTION FOR BREACH OF CONTRACT. 
 
 GENERAL PRINCIPLES. FORM OF ACTION. § 1. 
 DOUBTFUL TITLE IN ACTION FOR DAMAGES. § 2. 
 PURCHASER IN POSSESSION MAY SUE. § 3. 
 
 DEFENSES TO THE VENDOR'S ACTION FOR BREACH OF CON- 
 TRACT. § 4. 
 
 § 1. GENERAL PRINCIPLES. FORM OF ACTION. Usually a 
 contract for the sale of real estate allows time for the exami- 
 nation of the title, and fixes a day in the future for the pay- 
 ment of the purchase money and the execution of a conveyance.^ 
 If, when that day arrives, the purchaser shall have performed, or 
 offered to perform, everything on his part necessary to entitle him 
 to a conveyance, and the vendor be unable to convey such a title as 
 the purchaser may demand, the contract is broken, and the pur- 
 chaser is as much entitled to an action for damages as if the vendor, 
 being able to convey a good title, had willfully refused to perform 
 the contract.' If the contract was not under seal the proper action 
 for the breach will be trespass on the case in assumpsit ; ^ if the con- 
 tract was under seal, as in the case of a title bond, the proper action 
 will be covenant.* 
 
 In most cases the purchaser may elect between his right to recover 
 
 ' In Bennet v. Fuller, 39 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. 
 
 « 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. 363 does not apply 
 to the system of Code pleading in Texas, 
 
12 MAKKETABLE TITLE TO EEAL ESTATE. 
 
 damages for breach of the contract in faihng 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 tlie 
 contract is not under seal, the form of action is the same in either 
 case — trespass on the case in assumpsit. The two causes of action, 
 liowever, 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, lie 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.' 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.^ 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,' and, accord- 
 ing to the English decisions, he could not under the common counts 
 recover back the costs of examining the title.* The rule that the 
 
 > Chitty Cont. (lOtli Am. ed.) 339; 1 Sugd. Vend. (8tli Am. ed.) 537 (358). 
 
 « See Camfleld v. Gilbert, 4 Esp. 231. 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 land. 
 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. 
 
 2 Ingalls 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 FOB 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,^ 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,^ or for 
 specific performance, or damages in lieu thereof.^ Eut 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.* Where the purchasei- may elect between several 
 remedies he cannot, of coiirse, be required to adopt one in prefer- 
 ence to another.^ Nor, if the purchaser has a right to i-ecover 
 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.^ 
 
 ■ 2 Warvelle Vend. 955; Lynch v. Merc. Trust Co.. 18 Fed. Rep. 486. 
 
 ^ Reese v. Kirk, 39 Ala. 406; Alvai-ez v. Brannan, 7 Cal. 503; 68 Am. Dec. 
 374; Wright v. CariUo, 33 Cal. 604. 
 
 3 Haynes v. Farley, 4 Port. (Ala.) 538; Greene v. Allen, 32 Ala. 215. 
 
 * Sugd. Vend. (8th Am. ed.) 357. 
 
 " Barron v. Easton, 3 Iowa, 76. 
 
 « Lynch v. Merc. Trust Co., 18 Fed. Rep. 486; Krumm v. Beach, 96 N. T. 
 406, the court saying: "The contention of the vendors is that the defr-auded 
 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.) 825; 7 Am. Dec. 383; Culver 
 
14 MARKETABLE TITLE TO KEAL ESTATE. 
 
 But, having recovered a judgment for damages in an action for 
 breach of the contract to convey, he cannot afterward bring a sec- 
 ond action or resort to any other means to enforce the contract.* 
 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.' 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 denmnd for 
 damages.'' 
 
 If the purchaser accept a conveyance of the premises, he cannot 
 
 V. Avery, 7 Wend. (N. Y.) 386; 23 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 Sudg. Vend. (8th Am. ed.) 357 (236); Orme v. Boughton, 10 Bing. 537; 25 
 E. C. L. 354; Hopkins v. Lee, 6 Wheat. (U. S.) 109; Buckmaster v. Grundy, 3 
 Gil. (HI.) 626, 636; Hill v. Hobart, 16 Me. 169. 
 
 'SchlfEer 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 t. Daie, 3 
 Johns. Ch. (N. Y.) 23. Remedies in affirmance and remedies in disaffirmance or 
 rescission of the contract are non-concurrent and inconsistent with each other. 
 Bowen v. Mandeville, 95 N. Y. 240. 
 
 'Sugd. Vend. (8th Am. ed.) 547 (362); 1 Chit. Cont. (10th Am. ed.) 339 ; Cam- 
 field V. Gilbert, 4 Esp. 221. 
 
 ^ In the State of New Y^ork 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, § The expenses of examining 
 the title may be recovered in an action to recover back the deposit. EfEenheim 
 V. Von Hafen, 23 N. Y. Supp. 348 (N. Y. CityCourt) 
 
ACTION FOK BEEACH 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 tliere are no covenants, 
 he is, in the absence of fraud or mistake, without remedy.' 
 
 If the title fail, the purciiaser 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 Iiis use (trespass on the ease in assumpsit), which dis- 
 affirms the agreement.^ This distinction appears not to be observed 
 in those States in which the common-law system of pleading has 
 been abolished. Thus, in JSTew 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.' 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 tlie 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.* 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.^ We will consider 
 
 ' Sliurtz V. Thomas. 8 Ban- (Pa.), 363; Carter v. Beck, 40 Ala. 599. 
 
 ^ Clarke v. Locke, 11 Humph. (Teun.) 300; Hurst v. Means, 2 Swan (Tenn.), 
 594. But see 1 Sugd. Vend. (8th Am. ed.) 857 (336) 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. 
 
 ' 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. 
 
 •• Conley v. Doyle, 50 Mo. 334. 
 
 ' Eames v. Savage, 14 Mass. 438; Newcomb v. Brackett, 16 Mass. 165. 
 
16 MARKET ABLE TITLE TO BEAL ESTATE. 
 
 elsewhere under what circumstances the vendor will be allowed time 
 in which to remove objections to the title.' 
 
 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.^ This rule especially applies 
 in an action for breach of contract to convey a good title.^ 
 
 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,* nor to show tliat the title is absolutely bad and not merely 
 doubtful, as he must do where he affirms the contract.^ Where, 
 however, the contract provides for liquidated damages in excess of 
 the purchase money, or where by the law of the jurisdiction the 
 purchaser is entitled to recover damages in excess of the purchase 
 money, that is, damages for the loss of his bargain, he may find it 
 to his advantage to bring Jiis action on the contract. 
 
 § 2. DOTJBTFTJL TITLE IN ACTION FOR DAMAGES. A dis- 
 tinction is to be observed between tlie action to recover damages for 
 breach of the contract or failure of the title and an action to recover 
 back the pi;rchase money in this respect, namely, that in the former 
 action the plaintifE cannot recover unless he shows that the title is 
 
 1 Post, ch. 32. 
 
 ''Post, §§ 117, 344, 381. There are many cases which sustain this view. But 
 see "Wilson v. Holden, 16 Kbb. 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. 
 
 ^ Hurst V. Means, 2 Swan (Tenn.), 594. 
 
 = Post, I 2. 
 
ACTION FOE BREACH OF CONTRACT. 1 7 
 
 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.* 
 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, and the evidence shows that the title is merely doubtful, he 
 can recover nothing ; while, if he had counted for money had and 
 received to his use, he would have been entitled to judgment. 
 
 § 3. PURCHASER IN POSSESSION MAY MAINTAIN ACTION. 
 It will be seen hereafter that a purchaser cannot, on failure of the 
 title, disaffirm the conti-act and recover back the purchase money 
 unless he has been evicted or has surrendered the premises to the 
 vendor.^ 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.' 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.'* 
 
 ' Ingalls V, Hahn, 47 Hun (N. Y.), 104; Post, § 286, " Doubtful Titles at Law. " 
 
 « Post, ch. 25, 
 
 2 Oakes v. Buckley, 49 Wis. 592. 
 
 * 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 an action to 
 recover damages for the vendor's refusal to convey for want of title: "It is 
 insisted that the plaintiff, being in possession of the premises up to the time of 
 the commencement of the action, he can recover but nominal damages; that 
 actual eviction was necessary to entitle him to recover the entire purchase money 
 by way of damages for the non-conveyance. I am unable to discover upon what 
 principle the possession of the premises by the plaintiff can affect his remedy in 
 this action. The contract, for the non- performance of which this action is 
 3 
 
18 MAEKETABLE TITLE TO EEAL E8TATE. 
 
 § 4. DEFENSES TO THE VENDOR'S ACTION FOR 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 plaintifE has no title,^ or that the title is 
 doubtful,^ or that the estate is incumbered,' or that the plaintifE has 
 made fraudulent representations^ 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 
 as to the restoration of the premises to the plaintifE, or as to difficulty 
 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 perform- 
 ance, it is apprehended that the defense of want of title in the ven- 
 dor, amounting in substance to an election to rescind the contract, 
 
 l)rought, was for the title to, and not the possession of, the premises The pos- 
 session of the premises could not have heen in part performance of such contract; 
 and although it may have been beneiicial to the plaintiff, it did not at all mitigate 
 the damages sustained by him by the inability or unwillingness of the defendant 
 to convey the premises. Again, if the defendant had title to the premises and a 
 right to convey them, and has willfully refused to perform his contract, 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 permitted 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 mistake, still he must bear the consequences of that mis- 
 take. The plaintiff had a right to suppose that the defendant was familiar with 
 Ms own title, and had the right to sell what he agreed to convey. If the defend- 
 ant neither owned the preinises nor had the right to occupy them, or to suffer the 
 plaintiff 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 occupa- 
 tion, 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.) 538. 
 
 ' 2 Warvelle Vend, 963; Lewis v. White, 16 Ohio St. 444. 
 
 'Post, ch. 31. 
 
 'Gilbert v. Cherry, 57 Ga. 139. 
 
 * Gilbert v. Cherry, 57 6a. 129. 
 
ACTION FOE BREACH OF CONTRACT. 19 
 
 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 con- 
 tract.' Until the time arrives when, by the terms of the agreement, 
 the vendor is or might be entitled to performance, he can suffer no 
 injury or deprivation which can form a ground of damages.'' If a 
 purchaser of lands, to be conveyed free of incumbrances, 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 incum- 
 brance upon the premises, he cannot afterwards, 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 incum- 
 bered. His absolute refusal to perform is a waiver of the riglit to 
 require performance on the part of the vendor.^ 
 
 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.* 
 
 ' Daniels v. Newton, 114 Mass. 530; 19 Am. Rep. 384, disapproving Frost v. 
 Knight, L. R., 7 Exch. Ill, and Hoclister v. De la Tour, 2 E. & B. 678. 
 
 ' Language of Wells, J., in Daniels v. Newton, supra. 
 
 ' Carpenter v. Holcomb, 105 Mass. 280; Wells v. Day, 124 Mass. 38. In this 
 case the purchaser of three separate and distinct lots of land refused absolutely 
 to complete the contract on grounds which applied only to the first two lots. 
 The vendor resold the third lot at a considerable loss and brought an action 
 against the purchaser for breach of the contract, and it was held that defects In 
 a deed which had been tendered to him, and the existence of a mortgage on the 
 third lot constituted no defense to the action. 
 
 * 1 Sugd. Vend. (8th Am. ed.) 356; McNamara v. Arthur, 2 Bal. & Beat. 349. 
 
CHAPTER III. 
 IMPLIED AND EXPRESS AGREEMENTS AS TO THE TITLK 
 
 IMPLIED AGREEMENTS. 
 
 General Rule. § 5. 
 EXPRESS AGREEMENTS. 
 
 General Principles. § 6. 
 
 Terms and Conditions of Sale. § 7. 
 
 Parol Evidence. Auctioneer's Declarations. § 8. 
 
 Englisi. 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." g 13. 
 
 Agreement to sell subject to Liens. § 13. 
 
 § 5. IMPLIED AGREEMENTS — General Rule. The purchaser is 
 entitled to require from tlie vendor, in the absence of any provision 
 in tlie 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 jjarties, but is given by law and is implied in 
 every contract of sale.' And the rule is general that a contract for 
 
 ' Dart Vend. & Purcli. (4tli ed.) 104; 1 Sugd. Vend. (8th Am. ed.) 24 (16), 45& 
 (298), 510 (337); Rawle Gov. for Title (oth ed.), § 33; Hall v. Betty, 4 M. & G. 
 410; Geoghegan v. Connolly, 8 Ir. Ch. 598; Souter v. Drake, 5 B. & Ad. 993; 
 Purvis V. Rayer, 9 Prl. 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; Shreck v. Pierce, 3 
 Clarke (Iowa), 350; Puterbaugh v. Puterbaugh, (Ind.) 34 N. E. Rep. 611; Dur- 
 ham V. Hadley, (Kans.) 37 Pac. Rep. 105; Swan v. Drury, 23 Pick. (Mass.) 485; 
 Dwight V. Cutler, 3 Mich. 566; 34 Am. Dec. 105; Murphin v. Scoville, 41 Minn. 
 262; Drake v. Barton, 18 Minn. 414 (463); Donlon v. Evans, 40 Minn. 501; 43 N. 
 W. Rep. 473; 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; Inness v. 
 Willis, 48 N. Y. Super. Ct. 193; In re Hunter, 1 Edw. (N. Y.) 1; Wheeler v. 
 Tracy, 49 N. Y. Super. Ct. 208; Tharin v. Prickling, 2 Rich. (S. C.) 361; Breit- 
 haupt V. Thurmond, 3 Rich. (S. C.) 316; Green v. Chandler, 35 Tex. 157; Nelson 
 V. Matthews, 3 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 is 
 the owner of the property which he assumes to sell, and that he has a good title 
 thereto. Inness 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 
 
IMPLIED AND EXPRESS AGREEMENTS AS TO THE TITLE. 21 
 
 the sale of lands which is silent as to the title or interest to be 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,' though of course it 
 may be shown that a less interest was sold.^ 
 
 An agreement to sell land which contains no I'estrictive expres- 
 sions is an agreement to sell the whole of the vendor's estate or 
 interest therein.' It will be presumed that the estate sold was to be 
 accompanied by all of its legal incidents,* such as a right of way,' 
 and that which springs from the rule cvjus est solum ejus est usque 
 ad cwlum^ 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.' 
 
 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.^ 
 
 contract as to what kind of title a purchaser in any case is to receive, he must 
 take the title at his own risk; in other words, that there is no implied contract 
 that the title shall be indefeasible. And such, the court adds, is the rule in Eng- 
 land and in most of the American States. It is submitted with deference that 
 such is not the rule either in England or in America (see authorities, ante, p. 21), 
 except in the case of judicial and ministerial sales, and that the rule announced 
 in this case, in which the purchase was made at a judicial sale, should have been 
 limited to sales of that kind, as indicated in the qualified concurrence by 
 Treat, J., in the opinion of the court. See post, " Caveat Emptor," ch. S. 
 
 ' Cases cited in last note. Hughes v. Parker, 8 M. & W. 244; Cattell v. Cor- 
 rall, 4 Yd. & C. 228. 
 
 ' Cowley V. Watts, 17 Jur. 172; Cox v. Middletou, 2 Dru. 217. 
 
 «1 Sudg. Vend. (8th Am. ed.) 34 (16); Bower v. Cooper, 2 Ha. 408. 
 
 "Skull V. Clehister, 16 0. B. (N. S.) 81; 33 L. J. C. P. 135. 
 
 'Langford v. Selmes, 3 K. & Jo. 320; Denne v. Light, 3 Jur. (N. S.) 637; Stan- 
 ton V. Tattersall, 1 Sm. & G. 539, where the purchaser was relieved for want of 
 proper access to a house. 
 
 « Lewis V. Braithwaite, 3 B. & Ad. 437; Keyse v. Powell, 3 El. & Bl. 132; 
 Sparrow v. Oxford R. Co., 3 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 au 
 underground cellar. 
 
 ' Newark Sav. Inst. v. Jones, 37 N. J. Eq. 449. 
 
 « Woodcock V. Bennet, 1 Cow. (N. Y.) 711; 13 Am. Dec. 568. 
 
22 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.^ 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.' 
 Nor in an assignment of an executory contract for the sale of lands, 
 is there any implication of good title in the original vendor.' Nor 
 is there any such implied warranty in the assignment of a land-office 
 certificate.* 
 
 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.^ 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 requu-e 
 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.^ 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. Prankum, 3 De Q. & 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. 589. 
 
 ' Kintrea v. Preston, 1 H. & N. 357. 
 
 3 Thomas v. Bartow, 48 N. Y. 193. 
 
 " Johnston v. Houghton, 19 Ind. 309. 
 
 » Keim v. Lindley, (N. J. Eq.) 30 Atl. Rep. 1063. 
 
 ' Post, ch. 5, " Caveat Emptor." 
 
IMPLIED AND EXPRESS AGEEEMBNTS 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.' 
 
 § 6. EXPRESS AGKEEMENTS. 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.^ 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." ^ 
 
 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.* 
 
 If the purchaser contract for a title deducible of record, he can- 
 
 ■ Ante, p. 16. 
 
 ' Warvelle Vend. ch. III. 
 
 ' Vardaman v. Lawson, 17 Tex. 16. The court said in this case that a bond 
 for title is an instrument which evidences a contract for the sale of land, and is 
 substantially an agreement by the vendor to make to the vendee a title to the 
 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. 
 
 "■ 1 "Warvelle Vend. 337. 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 MAEKETABLE TITLE TO EEAL ESTATE. 
 
 not be conii^elled to accept a title resting altogetlier upon matters 
 inpais^ such, for example, as a title by adverse possession.^ A 
 stipulation in a contract of sale that tlie 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." It has been held that an agreement to furnish a satisfac- 
 
 ■ Page V. Greeley, 75 111. 400; Noyes v. Johnson, 139 Mass. 436. 
 
 ' Post, § 293. 
 
 3 3 Warvelle Vend. 764. See upon this point 2 Sugd. Vend. (8th Am, ed.) 27 
 (437). In Smith v. Taylor, 83 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 e.xamine 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 he (the vendor) was to furnish an abstract of title — a paper pre- 
 pared by a skilled seacher of records, which should show an absti-act 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. Farrington, 85 Cal. 535, 
 the provision of the contract was; "Title to be good or the money to be 
 refunded, party of the first part (vendor) to furnish an abstract of 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." 
 
IMPLIED AND EXPRESS AGREEMENTS AS TO THE TITLE. 25 
 
 toiy abstract of title referred only to the fullness or completeness of 
 the abstract, and not to the quality of the vendor's title.' 
 
 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 sucli a case it has been held that the purchaser may rescind, not- 
 withstanding the sufficiency of the title.^ 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.^ 
 
 § 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.* 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,^ 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 b}' 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.'' In this particular the 
 law is the same in America as in England.' 
 
 ' Fitch V. Willard, 73 111. 93. 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.) 126, 
 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.) 31 Pac. Rep. 505. 
 
 3 Welch v. Dutton, 79 111. 465. 
 
 ^ Post, this chapter. 
 
 ' See King v. Knapp, 59 N. Y. 462. 
 
 " Averett v. Lipscombe, 76 Va. 404, affords an illustration of this common 
 practice. 
 
 ' Averett v. Lipscombe, 76 Va. 404. 
 
 'Post, p. 31. 
 
 4 
 
26 KAEKETABLE TITLE TO BEAL 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 acc^uired under 
 the express terms of the contract of sale.* 
 
 ' 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 difEerence 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 \ipon 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.* 
 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.^ 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 vfhomsoever, no matter 
 how far back in the chain of title. As the intention of the parties must goveriL 
 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 in America be followed by the same consequences, and deprive the- 
 purchaser of his right to maintain or defend an action for breach of contract, on 
 the ground of inability of the vendor to convey a marketable title, or to require 
 covenants adequate for his protection. For these reasons it has been deemed 
 best to separate in the following pages the English rules respecting contracts ia 
 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. 
 
 ' "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- 
 rance V. Bolton, L. R., 14 Eq. 124; 8 Ch. App. 118. 
 
 » Rhodes v. Ibbetson, 4 De G.. M. & G. 787; Bulkley v. Hope, 1 Jur. (N. S.> 
 864. 
 
28 MAKKETABLE TITLE TO EEAL ESTATE. 
 
 the property and the nature and extent of the vendor's interest. 
 The conditions state the terms on wliich the property is sold, 
 including the undertakings of the vendor with respect to the title.^ 
 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.' 
 
 Every condition intended to relieve the vendor from his prima 
 facie' liability to deduce a marketable title and \'erify the abstract 
 by proper evidence at his own expense must be exjjressed in plain 
 and unambiguous language.* The purchaser, however, will be bound 
 by a clear stipulation as to the title ; = 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 ; " ^ or that the purchaser should only have the receipt and 
 conveyance of an equitable mortgagee and his assignees ; ' an agree- 
 ment by the vendors that they should convey only " such title as 
 they had received from A.; " ' that the purchaser should accept the 
 vendor's title " without dispute ; " ^ that he should accept " such 
 
 ' Dart V. & P. (5th ed.) 114. In Torrance v. Bolton, L. K., 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. Mauser v. Buck, 6 Ha. 443. 
 
 ^Sugd. 17; Dart. V. & P. (5th ed.) 109; Rawle Gov. § 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. 
 
 ••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. Kearsley, 
 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. & S. 718; Webb v. Kirby, 7 De 6., M. & G. 376; 
 Edwards v. Wickwar, L. R., 1 Eq. 68; Jackson v. Whitehead, 28 Beav. 154. 
 
 ' 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. S.) 372. 
 
 « Freme v. Wright, 4 Madd. 364. 
 
 ' Groom v. Booth, 1 Dre. 548. 
 
 « Wilmot V. Wilkinson, 6 B. & C. 506; Ashworth v. Mounsey, 9 Exch. 175. 
 
 5 Duke V. Barnett, 2 Coll. 337; Molloy v. Sterne, 1 Dru. & Wal. 585. 
 
IMPLIED AND EXPRESS AGEEEMENTS AS TO THE TITLE. 29 
 
 title as the vendor has." ' 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.' 
 
 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.* 
 
 But while the purchaser will be bound by a clear stipulation in 
 the conditions of sale respecting the title, the vendor will be strictly 
 held to any representations he has made regarding the title.^ And 
 
 ■Keyse v. Heydon, 20 L. T. 344; Tweed v. Mills, L. R., 1 C. P. 39. 
 
 ' Hume V. Bentley, 5 De G. & S. 520. Compare Darlington v. Hamilton, Kay, 
 550, and Waddell v. Wolfe, L. R, 9 Q. B. 515. 
 
 ^Nichols V. Corbett, 3 De G., J. & S. 18. 
 
 ^ In Spratt v. JefEery, 5 Mann. & Ey. 188; 10 B. & C. 349, the agreement was 
 in the following words; "And the said (purchaser) doth hereby agree to accept a 
 proper assignment of the said two leases and premises, as above described, with- 
 out requiring the lessor's title." Batley, 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, hut 
 should not be obliged to produce the lessofs 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, 3 Coll. 337. Sugden says that Spratt v. JefEery would prob- 
 ably not now be followed. Sugd. Vend. (8th Am. ed.) 26. See, also, Fry Sp. 
 Perf. (3d Am. ed.) 614, where that case is said to have been overruled. In Hume v. 
 Pocock, L.R., lEq.428, Sir John Stu.^.rt, V. C.,said: " There is no doubt that in 
 contracts for the sale and purchase of property the terms of the contract must be 
 clear, in order that the court may see how far the subject-matter of the purchase 
 can be given by the party who contracts to sell to him who contracts to buy. But 
 the owner of a disputed title may make a valid contract for the sale of that title, 
 such as it may be. No doubt, with reference to the terms of a contract, it is 
 implied that the purchaser is to have an indefeasible title: and although the ven- 
 dor may have entered into a contract that Ije 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." 
 
 5 Sugd. 17; Forster v. Hoggart, 15 Q. B. 155; Hume v. Bentley, 5 De G. <fc 
 Sm. 520; Hoy v. Smythies, 23 Beav. 510; Nott v. Ricard, 23 Beav. 307. 
 
30 MARKETABLE TITLE TO EEAL 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.' 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.'' 
 
 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.^ 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.* 
 
 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,' or of which 
 the purchaser has no notice,* should be stated in the particulars 
 of sale, otherwise the purchaser may, in many cases, avoid the 
 sale.' 
 
 If the attention of the purchaser be drawn to objectionable con- 
 ditions of sale, he may be bound by them if he makes his bid without 
 objection.* 
 
 1 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; Brumfit v. 
 Morton, 3 Jur. (N. S.) 1198; Jackson v. Whitehead, 28 Beav. 154; Swaisland v. 
 Dearsley, 29 Beav. 430. 
 
 'Dart V. & P. (5th ed.) 110; Dawes v.Betts, 12 Jur. 412. 
 
 'DartV. & P. (5th ed.) 151; Richardson v. Eyton, 2 De G., M. & G. 79; 
 Godson V. Turner, 15 Beav. 46. 
 
 * 1 Sugd. Vend. 337; Burnett v. Wheeler, 7 M. & W. 364. 
 
 'Sugd. 5, 6, 311, 312; Bart. V. & P. (5th ed.) 116, 117; Torrance v. Bolton, L. 
 E., 14 Eq. 124; 8 Ch. App. 118. See " Compensation for Defects," post, % 825. 
 
 « Hall V. Smith, 14 Ves. 426; Pope v. Garland, 4 Y. & C. 894; Patterson v. 
 Long, 6 Beav. 590; Lewis v. Bond, 18 Beav. 85. 
 
 ' Turner v. Beaurain, Sugd. 312; Bjrwell v. Brown, 1 Jac. & W. 72; Seaman 
 V. Vawdrey, 16 Ves. 390; Ramsden v. Hirst, 6 W. R. 849; Shackleton v. Sutcliffe, 
 1 DeG. &Sm. 609; Coverly v. Burrell, Sug. 27; Ballard v. Way, 1 M. & W. 
 620. 
 
 '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 tlie 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.' 
 
 Verbal declarations by the auctioneer, at the time of sale, will 
 not, as a general rule, be admitted for tlie purpose of contradicting, 
 explaining or adding to the particulars and conditions of the sale.* 
 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 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. 
 
 ' 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. 531; Manser v. Back, 6 Ha. 443; Goss v. Lord Nugent, 5 B. & 
 A. 58; 3 N. & M. 38; Vandever v. Baker, 13 Pa. St. 121. 
 
32 MAEKETABLE TITLE TO EEAL ESTATE. 
 
 either plaintiff or defendant,^ they will in equity be admitted in 
 favor of the purchaser when sued for specific performance.' Parol 
 evidence of declarations at the time of sale is inadmissible in equity 
 in favor of the vendor-plaintiff, even thougli the purchaser expressly 
 agreed to abide by the declarations.' Nor can the purchaser avail 
 himself of such evidence as plaintiff in equity,* 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.^ 
 
 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 specihc performance, but, as a general rule, 
 has been held inadmissible on behalf of the plaintiff.' 
 
 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 tliereto.'' 
 
 § 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 unnecessaj-y that the jjurchaser 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 suthciency of the instru- 
 
 1 Gunnis v, Erhart, 1 H, Bl. 289; Ford v. Yates, 2 Mann. & G. 549; Eden v. 
 Blake, 13 M. & W. 614; Greaves v. Asblin, 3 Camp. 426; Powell v. Edmunds, 13 
 East, 6. 
 
 'iSugd. 15; Dart V. & P. (5th ed.) Ill; Swaisland v. Dearsley, 29 Beav, 430. 
 The same rules apply hetween original purchaser and sub-purchaser. Dart, Id.; 
 Shelton v. Livius, 2 Or. & J. 411. The rule stated in the text has been applied ia 
 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, svpra. 
 
 <Sugd. Vend. 15. 
 
 5 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 AGEBEMENTS 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.' 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 
 
 ' 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. 333; 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. Q-azley v. 
 Price, 16 Johns. (N. Y.) 267; Parker v. Parmele, 20 Johns. (N. Y.) 133; 11 Am. 
 Dec. 258. 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 deceptive the title may be. See, also, Tobin v. Bell, 61 Ala. 125. 
 Strahan, 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, 32 Pick. (Mass.) 488. 
 5 
 
34 MAEKETABLE TITLE TO EEAL 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,' especially where, as is 
 frequently the case, the contract was the work of an unskilled 
 draughtsman.^ 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.^ Upon a like principle it has been decided that 
 
 ' Tindall v. Conover, 1 Spencer (N. J. L.), 314; 11 Am. Dec. 220, Nokeis, J., 
 saying: " Now I undertake to say that in a written contract for tlie sale and pur- 
 chase of lands the phrase "a good and sufficient warranty deed" will he 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, 
 hut 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.) 357, where 
 the contract was ' ' to make a sufficient title as far as this claim extends " the court 
 said: " The term Wfe is evidently used for (Zee(Z. * * * Jb ?Hafe 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. 89. Here the 
 agreement was merely "to make a deed." Tarwater v. Davis, 7 Ark. 153; 44 
 Am. Dec 584; Pate v. Mitchell, 23 Ark. 590; 79 Am. Dec. 114. Thayer v. White, 
 3 Gal. 339; Haynes v. White, 55 Cal. 88. But see Brown v. Covillaud, 6 Cal. 
 566. Abendroth v. Greenwood, 39 Conn. 356; Dodd v. Seymour, 21 Conn. 480. 
 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, 32 111. 127; Lull v. 
 Stone, 37 111. 224; Thompson v. Shoemaker. 68 111. 256. Clark v. Redman, 1 Bl. 
 (Ind.) 879; Warner v. Hatfield, 4B1. (Ind.) 392; Parker v. McAllister, 14 Ind. 13. 
 Pitch V. Casey, 3 Green (lo.), 300; Shreck v. Pierce, 3 CI. (lo.) 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 lie 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 Gush. (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. 263. Wiggins V. McGimpsey, 13 Sm. & M. (Miss.) 
 532; Peemster v. May, 13 Sm. & M. (Miss.) 375; 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, 13 
 K. 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. .7. L.) 654. In Tin- 
 dall V. Conover, 1 Spencer (N. J. L.), 314; 11 Am. Dec. 330, 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, 35 
 N. J. Eq. 557. Gilchrist v. Buie, 1 Dev. &B. Eq. (N. C.) 347, dictum; Lee v. 
 Foard, 1 Jones Eq. (N. C.) 127, semhle. Pugh v. Chasseldine, 11 Ohio, 109; 37 
 Am. Dec. 414. Thompson v. Hawley, 14 Oreg. 199; Collins v. Delashmutt, 6 Oreg. 
 51; Sanford v. Wheeler, 13 Oreg. 301. Dearth v. Williamson, 2 S. &R. (Pa.) 498; 
 7 Am. Dec. 653, the court saying: " A lawful deed of conveyance may be fairly 
 understood a deed conveying a lawful or good title. Romig v. Romig, 3 Rawle 
 (Pa.), 349; 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.) 366; Judson v. Wass, 11 Johns. (N. Y.) 528; 6 Am. Dec. 392; 
 Tucker v. Woods, 13 Johns. (N. Y.) 190; 7 Am. Dec. 305; Van Epps v. Schenec- 
 tady, 13 Johns. (N. Y.)442; 7 Am. Dec. 330; Gastry v. Perrin, 16 Johns. (N. Y.) 
 267; Robb v. Montgomery, 30 Johns. (N. Y.) 15; Carpenter v. Bailey, 17 Wend. 
 (N. Y.) 344; Traver v. Halstead, 23 Wend. (N. Y.) 66, the court saying: "It was 
 the title to the premises which the purchaser stipulated for, not a piece of parch- 
 
36 MAEKETABLE TITLE TO REAL ESTATE. 
 
 case of eviction by an adverse claimant.^ 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.^ 
 
 § 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 t. Taylor, 5 Hill (N. Y.), 107; Everson v. Kirtland, 4 Paige Ch. (K T.; 
 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.) 311; Penfield v. Clark, 
 63 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. Patterson 
 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." Go'ddin v. Vaughn, 14 Grat. (Va.) 117; Christian v. Cabell, 22 
 Grat. (Va.) 83. Young v. Wright, 14 Wis. 144; 65 Am. Dec. 303; Falkner v. 
 Guild, 10 Wis. 506; Bateraanv. Johnson, 10 Wis. 1: Davidson v. Van Pelt, 15 
 Wis. 341; Taft v. Kessel, 16 Wis. 373; Davis v. Henderson, 17 Wis. 106. Moody 
 v. Spokane, etc., R. Co., 5 Wash. 699. If the rule established by the foregoing 
 cases 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 purchaser 
 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 con- 
 veyance" means a deed conveying a lawful or good title. Wilson v. Getty, 57 
 Pa. St. 366, A deed conveying "all the right, title and interest" of the vendor 
 is not a compliance with a contract to execute to the purchaser " agood and suffi- 
 cient deed of bargain and sale, free and clear of all incumbrances," 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, 408. 
 
 ' Knapp V. Lee, 3 Pick. (Mass ) 459, disapproving Lloyd v. Jewell, 1 Greenl. 
 (Me.) 353; 10 Am. Dec. 78. 
 
 »Kohr V. Kindt, 8 Watts & S. (Pa.) 563; 89 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.^ 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.^ 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 m.ost eminent authority that if in fact the purchaser 
 consents to take a defective title, relying for his security on the 
 vendor's covenants, the agreement of the parties should be particu- 
 larly mentioned.' 
 
 As an agreement to make a " good and sufficient deed" relates not 
 
 ' Holland v. Rogers, 33 Ark. 251. Fitch v. Willard, 73 111. 93. Vail v. Nelson, 
 4 Rand. (Va.) 124; Sutton v. Sutton, 7 Grat. (Va.) 204; 56 Am. Dec. 109; Bailey 
 V. James, 11 Grat. (Va.) 468; 62 Am. Dec. 659. Boyles v. Bee, 18 W. Va. 520. 
 McManus V. Blackmar, 47 Minn. 381. 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. Duflef 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 N. Car. 472. 
 
 » 1 Sugd. Vend. (8th Am. ed.) 510, 511 (337); Rawle Gov. (5th ed.) § 32. 
 
 3 2 Sugd. Vend. (8th Am. ed.) 230 (573). 
 
38 MARKETABLE TITLE TO EEAL ESTATE. 
 
 merely to the form of the deed, but to the sufficiency of the title,^' 
 so neither is an agreement to convey " by quit-claim deed," a stipu- 
 lation merely as to tlie form of the deed ; it is a condition which 
 requires the purchaser to take just such title as the vendor has.^ 
 
 § 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.' 
 
 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 factum, 
 and the purchaser might rescind.'' "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.' 
 
 § 13. Express agreement to purchase subject to liens. If 
 the purchaser expressly agrees to assume the payment of an incum- 
 brance on the purchased premises, he not only cannot thereafter 
 object to the title because of the incumbrance, but as between him- 
 self and the vendor, he makes the debt his own, and assumes to 
 protect the vendor.^ It has been held, however, that a mere agree- 
 ment to take " subject to " an incumbrance, does not bind the pur- 
 chaser to discharge the incumbrance.' 
 
 ' Ante, p. 32. 
 
 '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. 
 
 "Johnson v. Tool, 1 Dana (Ky.), 479; 25 Am. Dec. 162. 
 
 'Lullv. 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. Hemmingway, 18 Hun (N. Y.), 458; Kruger 
 v. Adams, 13 Neb. 100. 
 
 ■■ Lewis v. Day, 53 Iowa, 575, and cases cited. 
 
IMPLIED AND EXPEESS AGREEMENTS AS TO THE TITLE. 39 
 
 It has also been held that if the pnrcliaser 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 efEect 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.' 
 
 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.' The gen- 
 eral rule, however, is that the purchaser must apply the unpaid pur- 
 chase money to the satisfaction of valid incumbrances.' 
 
 ' Kohner v. Higgins, 42 N. Y. Super. Ct. 4; Mellon v. Webster, 5 Mo. App. 
 449. 
 
 ' 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. 
 
 3 See post, § 345. 
 
CHAPTER lY. 
 
 OF THE SUFFICIENCY OF THE CONVEYANCE TENDERED BY THE 
 
 VENDOR. 
 
 GENERAL OBSERVATIONS. § 14. 
 
 ESSENTIAL REQUISITES OF THE CONVETANCE. § 15. 
 
 ISIaterial, printings, etc. § 16. 
 
 Date. §17. 
 
 Parties. § 18. 
 
 Words of conveyance. § 19. 
 
 Description of tlie premises. § 20. 
 
 Description of estate or interest conveyed. § 21. 
 
 Signature and seal. § 23. 
 
 Attestation or acknowledgment. § 23. 
 
 (a) Venue of tfte certificate. § 24. 
 
 (b) Name and official designation of certifying officer. % 35. 
 
 (c) Name of grantor. § 26. 
 {d) Annexation of deed. § 27. 
 
 (e) Jurisdiction of certifying officer. § 38. 
 
 (/) Personal acquaintance with grantor. § 39. 
 
 (g) Fact of acknowledgment. §30. 
 
 (7i) Privy examination of wife. § 31. 
 
 (i) Explanation of contents of deed. § 33. 
 
 {k) Voluntary act of wife. §33. 
 
 {I) 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. 
 
 (?) Seal of officer. § 89. 
 
 (r) Surplusage and clerical mistakes. § 40. 
 
 (s) Amendment of certificate. § 41. 
 Reservations, restrictions and conditions. § 4S. 
 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 puT- 
 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.' 
 
 The conveyance must, of course, be sufficient in form to pass the 
 interest to which the purchaser is entitled under the contract.^ 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.^ 
 
 An agreement " to sell " lands obliges the vendor to make a 
 proper conveyance.* 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.'' 
 
 The conveyance must also contain all the covenants to which the 
 purchaser is entitled.^ 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.'' 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.^ 
 
 ' Post, § 88. 
 
 ' 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, p. 33. 
 
 * Hoffman v. Fett, 39 Cal. 109; Smith v. Haynes, 9 Greenl. (Me.) 128; Dart 
 V. & P. (5th ed.) 130. And, e converso, an agreement to "execute and deliver a 
 deed" is an agreement to sell the land. Martin v. Colby, 43 Hun (N. Y.), 1. 
 
 ' Tapp V. Beverley, 1 Leigh (Va.), 80; Botto v. Berges, 47 La. Ann. 959; 17 So. 
 Rep. 428. 
 
 8 Post, §§ 67, 68. 
 
 ' Rawle Cov. for Title (5th ed.), § 820; post, chap. 37. 
 
 «Papin V, Goodrich, 103 111. 86. 
 6 
 
42 MARKETABLE TITLE TO EEAL ESTATE. 
 
 § 15. ESSENTIAL REftTJISITES 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 appi-e- 
 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, beji^ond 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.^ 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 
 
 ' Post, chap. 31. 
 
SUFFICIENCY OF CONVEYANCE TENDERED BY THE VENDOR. 43 
 
 contained in a former conveyance. If the vendor be dead, liis heirs, 
 or a commissioner of the court, should make and tender the 
 amended conveyance.' 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.^ In some of the States a 
 deed of bargain and sale must be supported by a valuable considera- 
 tion, pecuniary or otherwise.^ Wherever this rule exists, the pur- 
 chaser should see that the consideration is expressed in the deed 
 which is tendered to him by tlie vendor. It is true that the exist- 
 ence of the consideration, if not recited in the deed, may be shown 
 by evidence aliunde /* 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, 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 unim- 
 portant. If, however, a deed should be written or printed upon 
 some material similar to and forming a convenient substitute 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.^ But there 
 can be no doubt that a purchaser would be justiiied 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." For the same reason it is apprehended that a deed written 
 
 > Leslie v. Slusher, 15 Ind. 166; Rush v. Truby, 11 Ind. 463. 
 
 'Fitzpatrick v. Fitzpatrick, 6 R. I. 64; 75 Am. Dec. 681. 
 
 3 3 Washb. Real Prop. 368 (613). 
 
 ^Id. 
 
 ' 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 invaUd 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, | 135, 
 
44 MAEKETABLE TITLE TO REAL ESTATE. 
 
 witli a lead pencil would be held valid.* 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. 
 
 § 17. Date. Eegularly, 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.^ A deed being an executed contract, 
 it is immaterial that it bears date on a Sunday ; the parties being 
 in pari delicto, the courts will not interfere to declare the instru- 
 ment void, as it sometimes does where the contract is executory.^ 
 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.* 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.' Yet instances exist in which instruments, from 
 which the name of the grantee, through carelessness or inattention, 
 has been omitted, have been tendered to and accepted by the pur- 
 chaser. The parties should be correctly described by their Christian 
 names as well as surnames. And while an incorrect or imperfect 
 
 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, 26 Wend. (N. 
 Y.) 351. 
 
 ' Contracts for the sale of land written in lead pencil are valid. Clason v. 
 Bailey, 14 Johns. (N. Y.) 484. So also, a will or codicil to a will. Raymes v. 
 Clavkson, 1 Phillim. 22. 
 
 ' 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 lo a deed that it bears date prior to the vendor's acquisition of 
 title. Bledsoe v. Doe, 4 How. (Miss.) 13. 
 
 ^ See cases cited 24 Am. & Eng. Bncyc. of L. 555. 
 
 < Kurtz V. HoUingshed, 4 Cranch C. C. (U. S.) 180. 
 
 ' Chase v. Palmer, 39 111. 306; Whittaker v. Miller, 83 111. 381. In both these 
 cases the deed had been executed in blank, and the name of a grantee afterwards 
 inserted by a third person. Gavnett v. Garnett, 7 T. B. Men. (Ky.) 545. 
 
SUFFICIENCY OF CONVEYANCE TENDERED BY THE VENDOR. 45 
 
 description of the grantee does not destroy the vaKdity of a deed as a 
 mnniment of title, there can scarcely be any doubt that a pur- 
 chaser would not be required to accept such a conveyance.' 
 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.' Thus, a grant to the 
 people of a county is void for uncertainty.' 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.* Hence, a grant to the 
 "children of A." is valid.' So, also, a deed " to the heirs at law of 
 a deceased person." " 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.' 
 The grantee, unless sucli by way of remainder, must, of course, be 
 in existence at the time of the grant.^ It has been held that a con- 
 veyance to a fictitious person is void.' 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.^" Nor will a deed be avoided by the fact that the grantor's 
 
 ' 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 doubtful descrip- 
 tions of the grantee have been aided by parol evidence, and the description held 
 sufficient, according to the maxim id certum 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. 
 
 ' 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. 
 
 2. Jackson v. Cory, 8 Johns. (N. Y.) 385; Hornbeok v. Westbrook, 9 Johns. 
 (N. Y.) 73. 
 
 * 1 Devlin on Deeds, § 184. 
 
 'Hogg V. Odom, Dudley, (Ga.) 185. 
 
 « Shaw V. Loud, 13 Mass. 147. 
 
 'Hunter v. Watson, 13 Cal. 363; 73 Am. Dec. 543. 
 
 'Newsom v. Thompson, 3 Ired. {N. 0.) L. 277; Lillard v. Ruckers, 6 Yerg. 
 (Tenn.) 64. 
 
 'Muskingum Val. Turnpike v. Ward, 13 Ohio, 120. But see Thomas v. 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.* 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.^ E'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,' 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.* 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 partnersliip, 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.^ A conveyance to A. B. & Co. 
 passes the legal title to A. B. alone.' A deed made by " A. B., 
 Executor," without specifying the estate of the testator, and signed 
 by the executor in the same way, is sufiicient as a deed executed by 
 him in a representative and not in his individual capacity.' 
 
 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.^ A contract by several to convey with war- 
 
 1 Mardes 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. 
 
 3 Lyon V. Karn, 36 111. 362; Tnstin v. Faught, 23Cal. 337; Middleton v. Findla, 
 25Cal. 76. 
 
 Stark V. Sigelow, 12 Wis. 234. 
 
 ' 1 Washb. Real Prop. (3d ed.) 573; IMcMurray v. Fletcher, 24 Kans. 574. 
 
 « Arthur v. "Weston, 23 Mo. 378; Beauman v. Whitney, 20 Me. 413. 
 
 'Babcock v. Collins, (Minn.) 61 N. W. Rep. 1020. 
 
 8 Walter V. De Graa,f, 19 Abb. N. C. (N. Y.) 406. In this case the apparent 
 owner contracted to give a warranty deed with full covenants. The conveyance 
 under which the apparent owner held was absolute in form, but in fact a mort- 
 gage. He recouveyed 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. 
 
StrFFIOIENCT OF CONVEYANCE TENDERED BY THE VENDOE. 47 
 
 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 
 contracted.^ It has been held that a contract to make a good and 
 sufficient deed, entered uito by a vendor having no title, would be 
 satislied by a tender of a conveyance from the real owner.^ It 
 would seem, however, that if the contract entitled the purchaser to 
 covenants of warranty, the vendor should be required to join in the 
 conveyance so tendered. 
 
 In every case in which the purchaser is entitled to demand a 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 liis vendor.' 
 
 But a deed from a third party is a substantial compliance with a 
 covenant to convey, unless the purchaser is entitled to covenants of 
 warranty from the vendor.^ Such a deed, however, not being 
 within the terms of the contract of sale, the burden devolves on 
 the vendor to show that the purchaser accepted the same in full 
 performance of the agreement.^ 
 
 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; 8 Am. Dec. 10; Clark v. Eedman, 1 Blackf. 
 (Ind.) 379. 
 
 ' Bateman v. Johnson, 10 Wis. 1. 
 
 3 Steiner v. Zwickey, 41 Minn. 448; 43 N. W. Eep. 876; Crabtree v. Levings, 
 53 111. 526; Yates v. Prior, 11 Ark. 76; Taylor v. Porter, 1 Dana (Ky.), 422; 35 
 Am. Dec. 165; Royal v. Dennison, (Cal.) 38 Pac. Rep. 39; George v. Conhaim, 38 
 Minn. 338; 37 N. W. Rep. 391. 
 
 * Bigler v. Morgan, 77 N. Y. 312; Robb v. Montgomery, 30 Johns. (N. Y.) 15. 
 
 ' Slocum v. Bray, 55 Minn. 349; 56 N. W. Rep. 836. 
 
48 MAEKETABLE 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.' 
 
 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.'^ 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.^ 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.* Particular attention should be paid to conveyances of 
 
 1 Bobb V. Barnum, 59 Mo. 394. 
 
 » 2 Sudg. Vend. (8th Am. ed.) 214 (563). 
 
 ^ The cases will be found collected in 1 Devlin on Deeds, § 377, et seq. 
 
 * 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.* 
 
 If the purchaser be entitled, under the contract, to call for a con- 
 veyance of a clear and unincumbered title, he may reject a convey- 
 ance w^hicli doos not contain a relinquishment of any contingent 
 right of dower existing in the premises.^ 
 
 § 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.' 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. Gimell v. Adams, 11 Humph. (Tenn.) 283. A deed with blanks filled 
 hy an agent in the absence of the grantor, but with verbal authority frpm him, is 
 void. 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. 
 
 ' Story on Partnership, § 120. 
 
 2 Polk V. Sumter, 2 Strobh. L. (S. Car.) 81; Jones v. Gardner, 10 Johns. (N. 
 
 y.) 266. 
 » 1 Washb. Beal Prop. m. p. 56 (3d ed.) 671. 
 
 7 
 
50 MAEKETABLE TITLE TO REAL ESTATE. 
 
 of an estate of inheritance still exists. Wherever this 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,' 
 and yet instruments amounting to notliing 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.'' But a deed with- 
 out suiBcient words of conveyance in the granting clause will pass a 
 fee if words sufficient for that purpose appear in other parts of the 
 deed.* 
 
 § 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.^ 
 We need not inquire here whether parol evidence will be received 
 in aid of an unintelligible description. The purchaser may avoid 
 
 ' Brown v. Manter, 21 N. H. 538; 53 Am. Dec. 323. An instrument under 
 seal acknowledging receipt of tlie consideration for the sale of real estate, but 
 containing no words of conveyance, passes no title. Pierson v. Doe, 3 Ind. 123. 
 
 'McKenneyv. 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. 803); so, 
 also, the word " convey" (Patterson v. Carneal, 8 A. K. Marsh. [Ky.] 618; 13 
 Am. Dec. 208), and the word "give" in a deed of gift. Pierson v. Armstrong, 1 
 Iowa, 383; 63 Am. Dec. 440. 
 
 ' Ryan v. "Wilson, 9 Mich. 363. 
 
 * Bridge v. Wellington, 1 Mass. 219. 
 
 I' Devlin on Deeds, g 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 VENDOE. 5 I 
 
 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,^ 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. -J of the 
 IS". E. ^ of S. E. -J- " 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.^ 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.^ 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.* 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.^ 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 sucli 
 as answers to every particular.^ If a deed contain conflicting 
 descriptions of equal authority, that which is most favorable to the 
 
 ' 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, 37 Me. 156; Bell v. Woodward, 46 N. H. 315. 
 
 « Worthington v. Hylyer, 4 Mass. 196, per Paesons, C. J. 
 
52 IIAEKETABLE TITLE TO EEAL ESTATE. 
 
 grantee will be taken.' If there be any doubt about what property 
 a deed conveys, it must be construed most strongly against the 
 grantor.^ A deed which contains no other description , of the 
 premises than a reference to another deed containing a full descrip- 
 tion is sufficient.^ And an uncertain description may be cured by 
 a reference in the deed to other conveyances.* A general descrip- 
 tion in a deed will govern where the particular description by metes 
 and bounds as given is uncertain or impossible.^ 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 boimdaries by natural 
 objects, will pass the title, though no particular locality be set forth 
 in the deed.'' 
 
 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, imless the granted premises be therein so plainly and 
 clearly described that a person reading the deed may locate and 
 identify the property therefrom.^ 
 
 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.* 
 
 1 Vance v. Fore, 24 Cal. 435. 
 ' Black V. Grant, 50 Me. 364. 
 
 3 Glover v. Shields, 33 Barb. (N. Y.) 374; Phelps v. Phelps, 17 Md. 120; John- 
 ston V. Scott, 11 Mich. 232. 
 •> Bowman v. Wettig, 39 El. 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. 
 
 9 Wilson V. Johnson, (Ind.) 38 N. E. Rep. 38. 
 
SUFFICIENCY OF CONVEYANCE TENDERED BY THE VENDOE. 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.^ 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 wJiatever" of the grantor, 
 would not convert the deed into a mere release.^ 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.^ 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 ]3rop- 
 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.* 
 Tlie 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.^ 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. 
 Eep. 496; 1 C. C. A. 330. 
 
 = Dennison v. Ely, 1 Barb. (N. Y.) 610. 
 
 3 1 Shep. Touch. 85, ante, p. 91; 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 MAEKETABLE TITLE TO EEAL ESTATE. 
 
 passes the individual interest of the grantor.^ The quantity of 
 estate or interest intended to be conveyed was expressed usually in 
 that part of the common-law deed or f eoif ment known as the haben- 
 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.^ When 
 employed it may be looked to for the purpose of determining the 
 true construction of the deed, with this hmitation, however, that if 
 it be inconsistent with or repugnant to the granting clause of the 
 deed, the latter shall prevail.^ 
 
 § 32. 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.* 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 perhajas every State of the Union, a direct 
 impression upon the paper itself, or a simple scroll, is by statute 
 made sufficient as a seal.^ And the public have become so accus- 
 tomed to their use that the ancient mode of sealing, if resorted to 
 
 ' White V. Siiyre, 2 Ohio, 110. 
 
 « 3 Washh. Real Prop. 466 (643). 
 
 ^Flagg V. Barnes, 40 Vt. 23; 94 Am. Dec. 363; Mayor v. Bulkley, 51 Mo. 227; 
 4 Kent Com. 468. 
 
 ^Shep. Touchstone (Preston's ed.), 56; 3 Washb. Real Prop. 270; Jeffery v. 
 Underwood, 1 Arlj. 108. 
 
 ' See, generally, upon the subject of seals, 3 Washb. Real. Prop. 271; 1 Devlia 
 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 
 sufKcient as a seal, must be recognized as such in the body of the 
 instrument. This is usually the oifice of tlie testimonium 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.* Bat 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.^ 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,^ 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 subscribincr 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,'* 
 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 ofiicers, 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 
 
 ' Clegg V. Lem^ssurier, 15 Grat. (Va.) 108; Jenkins v. Hunt, 2 Rand. (Va.) 446. 
 
 sCosner v. McCrum, (W. Va.) 21 S. E, Rep. 739; Ashwell v. Ayres, 4 Grat. 
 (Va.) 283. 
 
 ^Townsend v. Hubbard, 4 Hill (N. Y.), 851; Burnett v. McCluej', 78 Mo. 676; 
 Lambden v. Sharp, 9 Humph. (Tenn.)334. 
 
 ■i Corbett v. Norcross, 35 JSf. H. 99. 
 
56 MAEKETABLE 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 depai-ture from statutory forms, and 
 large transactions in real property are sometimes siispended, 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, e\'ery clause and every important 
 word in it has been the subject of repeated adjudications. 
 
 State of , j 
 
 County of _\to-wH{a): 
 
 I, William Smith, a notary public in and for tlie county and State 
 aforesaid(5), do certify that A. B.(c) whose name is 
 
SUFFICIENCY OF CONVEYANCE TENDERED BY THE TENDOE. 57 
 
 signed to the foregoing ■writing(^), bearing date on the — day of 
 
 — , , personally appeared before me in the county afore- 
 
 8aid(e), 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 f nlly explained 
 to her(^), she, the said C. B., acknowledged the same to be her act 
 and deed, and declared that she had willingly executed the same(^), 
 and wished not to retract it(Z). Given under my hand and seal(TO), 
 
 this — day oi{n) . 
 
 WILLIAM SMITH(o), JV. F.{p) [seal](^). 
 
 § 24-. (a) Venue of certificate. Begularly, 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 tlie " 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.^ But if the place of acknowledgment cannot be 
 determined from any of these sources, the certificate will be 
 rejected.'* The purchaser should avoid all difficulty upon this point 
 by insisting that the paper tendered shall literally follow the pre- 
 scribed form. 
 
 § 25. (5) Name, official designation, and authority of officer. 
 The name of the certifying officer should appear in the Ijody 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 
 
 'Graham v. Anderson, 42111. 514; 92 Am. Dec. 89; Dunlap v. Dougherty, 20 
 111. 397; Puhrman v. Loudon, 13 Serg. & E. (Pa.) 386; 15 Am. Dec. 608; Brooks 
 V. Chaplin, 8 Vt. 281; 28 Am. Dec. 209. 
 
 'Vance v. Schuyler, 1 Gilm. (111.) 160; Hardiu v. Kirk, 49 111. 153; 95 Am. 
 Dec. 581. 
 
58 MARKETABLE TITLE TO EBAL ESTATE. 
 
 of one, the names of both should be set out in the certificate.* 
 The purchaser, of coarse, whether as grantee in his own right or in 
 a representative capacity,^ should not take the acknowledgment of 
 the grantor. The court will reject a certificate by an interested 
 party.^ The fact that an ofiicer 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.^ 
 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.^ In the absence of any statutory provision upon the subject, it 
 is not absolutely necessary to recite the official character in the certifi- 
 cate.' 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.' 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 
 
 ' Ridgely v. Howard, 3 Harr. «fc McH. (Md.) 321. 
 
 ^ Beaman v. Whitney, 20 Me. 413; Brown v. Moore, 38 Tex. 645, trustee; 
 Black V. Gregg, 58 Mo. 565, trustee; Stevens v. Hampton, 46 Mo. 404; Dail v. 
 Moore, 51 Mo. 589; Clinch River Veneer Co. v. Kurth, 90 Va. 737, a case in 
 which the trustee in a deed took an acknowledgment thereof. 
 
 s 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 S. E Rep. 878; Wilson v. Traer, 20 Iowa, 331. Compare Kimball v. 
 Johnson, 14 Wis. 674. 
 
 " Lynch v. Livingston, 6 N. Y. 422. 
 
 ^ Dussaume v. Burnett, 5 Iowa, 95; Long v. Crews, 113 N. C. 256; 18 S. E. 
 Rep. 499, when the officer was a preferred creditor in the deed; so, also, in Baxter 
 V. Howell, (Tex. Civ. App.) 26 S. W. Rep. 453. Acknowledgment of a clerk is 
 not invalid because taken by his deputy. Piland v. Taylor, 113 N. C. 1; 18 S. 
 E. Rep. 70. 
 
 ' Johnston v. Haines, 2 Ohio, 55; 15 Am. Dec. 533. See, also. Van Ness v. 
 Bank, 13 Pet. (U. S.) 17. 
 
 ' Russ V. Wingate, 30 Miss. 440; Shultz v. Moore, 1 McLean (U. S.), 520. 
 
 8 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 VENDOK. 59 
 
 material.^ And a variance between the statutory description of the 
 officer and that contained in tlie certificate is immaterial.^ The pur- 
 chaser should be careful to see that the certifying officer is one of 
 the class authorized by statute to take acknowledgments. A certifi- 
 cate by an officer not named in the statute will be insufficient.^ 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.' 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- 
 
 ' 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. Sample, 10 Cal. 441. See, also, 
 Wright v. Wells, 12 N. J. L. 131; Uhler v. 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. T.), 
 223. 
 
 ^ 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, 11 111. App. 340. As to doubts about the title arising: 
 from these particulars, see post, ch. 31, § 300. 
 
"GO MAEKETABLE TITLE TO EEAL ESTATE. 
 
 tion.^ In such a case the act of a de facto ofScer cannot be 
 ■questioned in a collateral proceeding. 
 
 Where a certifying officer has power to appoint a deputy, an 
 racknowledgment taken and certified by such deputy will be suiii- 
 'cient.^ 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.* 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 oificer of which, the person 
 signing the certificate professes to act. If this cannot be collected 
 irom the whole instrument, read in connection with the deed, the 
 certificate will be rejected.^ 
 
 § 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.^ 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.^ But where a deed has been acknowledged in open court, a 
 
 1 Brown v. Lunt. 37 Me. 433; Prescott v. Hayes, 43 N. H. 56; Crutchfield v. 
 Hewett, 2 App. Cas. (D. C.) 373. 
 
 ' Muller V. Boggs, 35 Cal. 175; Rose v. Neuman, 36 Tex. 131; 80 Am. Dec. 
 646; Kemp v. Porter, 7 Ala. 138. 
 
 3 Talbot V. Hooser, 13 Bush (Ky.), 408; jMcCraven v. McGuire, 33 Miss. 100. 
 
 ■* Beaumont v. Yeatman, 8 Humph. (Tenn.) 542. 
 
 'Vance v. Schuyler, 1 Gilm. (111.) 160. 
 
 « Smith V. Hunt, 13 Ohio, 360; 43 Am. Dec. 201; Hiss v. McCabe, 45 Md. 84; 
 Hayden v. Westcott, 11 Conn. 139. 
 
 ' 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. 453. 
 
 '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 TENDEEED BY THE VENDOE. 61 
 
 certificate of that fact which fails to state by whom the deed waa 
 acknowledged is, nevertheless, sufficient, it being presumed that the 
 acknowledgment was by the grantor.* 
 
 If the deed be that of a corporation, the proper person to acknowl- 
 edge it is the officer who affixed the corporate seal.' If the deed 
 be signed by two or more officers of the corporation, an acknowl- 
 edgment by one of them will suffice.' The instrument should be 
 acknowledged to be the act and deed of the corporation, and not of 
 the subscribing officer.* 
 
 It is the better practice that the official or representative capacity 
 of a party acknowledging a deed, such as a shei-iff, 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.' 
 An authority to execute a deed of trust as attorney gives the power 
 by implication to acknowledge it for registration.' It seems that a. 
 grantor, executing a deed in his own proper person, may acknowl- 
 edge it through an attorney in fact.' 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.^ 
 
 § 27. (<^) 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 certificata 
 
 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.) 37 S. W. Rep. 790. But see Chandler v. 
 Spear, 32 Vt. 888, 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 fact acknowledged by him. 
 
 ' PhilUps V. Ruble, Litt. Sel. Cas. (Ky.) 321. 
 
 'Kelly V. Calhoun, 95 U. S. 710; Lovett v. Saw Mill Assn., 6 Paige (N. 
 Y.), 54. 
 
 ' Merrill v. Montgomery, 35 Mich. 73. 
 
 ■•McDaniels v. Flower Brook Mfg. Co., 33 Vt. 374. But see Teuney v. East 
 Warren, etc., Co., 43 N. H. 848. 
 
 » Dail V. Moore, 51 Mo. 589; Robinson v. Mauldin, 11 Ala. 977. 
 
 « Robinson v. Mauldin, 11 Ala. 977. 
 
 'Elliott V. Osborn, 1 Harr. & McH. (Md.) 146. 
 
 8 Richmond v. Voorhees, 10 Wash. 316; 38 Pac. Rep. 1014. 
 
62 MAEKETABLE TITLE TO EEAL ESTATE. 
 
 written upon a separate piece of paper, but firmly attached to the 
 deed, was not in compliance with the law and was insufficient,* 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.'' 
 
 § 28. (e) Jurisdiction of office?'. 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.^ 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 bs pre- 
 sumed,* 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.^ 
 
 § 29. {f) Personal acquaintance with grantor. The recital in 
 the certificate that the party acknowledging the deed was well known 
 
 ' Winkler v. Higgins, 9 Ohio St. 599. 
 
 ' Ives V. Kimball, 1 Mich. 308. 
 
 "Long V. Crews, 118 N. 0. 256; 18 S. E, Bep. 499; Dixon v. Eobbins, 114 N. 
 C. 102; Ferebee v. Hinton, 102 N. C. 99; 8 S. E. Rep. 923. The jurisdiction of 
 the olEcer 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. 
 
 * 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. Peoples, 1 Ga. 3. 
 
 5 Johnson v. McGhee, 1 Ala. 168; Colton v. Seavey, 22 Cal. 496. 
 
SUFFICIENCY OF CONVEYANCE TENDEEED BY THE YENDOK. 63 
 
 to the officer, or that liis identity was proved to the officer by the 
 oaths of credible witnesses, is indispensable.' Equivocal phrases, 
 such as that the officer is satisfied as to tlie identity of the party, will 
 not suffice.^ 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.' The omission of the word " known " in the clause 
 "personally known to me" will be fatal.^ But it has been held 
 that the omission of the word " personally " from the same clause 
 is immaterial.^ 
 
 § 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.' 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.^ But a recital that the 
 grantor " stated " that he had executed the deed was held insuf- 
 
 ' Fogarty v. Fiulay, 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. Rookefelier, 63 N. Y. 368. 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. 
 
 'Kimball v. Simple, 25 Cal. 440; Shepherd v. Carriel, 19 111. 313; Short v. 
 Conlee, 28 111. 219. 
 
 ' Kelly v. Calhoun, 95 TJ. S. 710. See, also, Sheldon v. Stryker, 43 Barb. (N. 
 Y.) 284; Thurman v. Cameron, 24 "Wend. (N. Y.) 87. 
 
 *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 
 V. Woodward, 4 Green (Iowa), 82. But see Rosenthal v. Griffin, 23 Iowa, 263. 
 
 '^ 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. 
 
 ' Cabell V. Grubbs, 48 Mo. 353; Short v. Conlee, 38 111. 219. In Bryan v. 
 Ramirez, 8 Cal. 461; 68 Am. Dec. 340, the certificate recited that the grantor was 
 known to the officer to be such, but did not show an acknowledgment. 
 
 nngraham v. Grigg, 13. Sm. & M. (Miss.) 23. An acknowledgment that he 
 "signed, sealed and delivered" the deed is also equivalent to an acknowl- 
 
64 MAEKETABLE TITLE TO EEAL ESTATE. 
 
 ficient.' 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.^ 
 
 § 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.* 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 ofiicer 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.^ 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 lie executed the deed. Jacoway v. Gault, 20 Ark, 190; 73 Am. 
 Dec. 494. 
 
 ' Dewey v. Campau, 4 Mich. 565. This was a great refinement. 
 
 ^ Stanton v. Button, 2 Conn. 537. 
 
 2 Newman v. Samuels, 17 Iowa, 528; Spitznagle v. Van Hessch, Neb. 338. 
 But see Henderson v. Grewell, 8 Cal. 581. 
 
 ^Barnett v. Shackleford, 6 J. J. Marsh. (Ky.) 533; 22 Am. Dec. 100. 
 
 ' Skinner v. Fletcher, 1 Ired. L. (N. C.) 313. 
 
 * Kennedy v. Price, 57 Miss. 771. 
 
SITFFIOIENOT OF CONVEYANCE TENDERED BY THE VENDOR. 65 
 
 vately examined, apart from and out of the hearing of her husband," 
 was accepted^ 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.^ 
 
 § 32. (*) Explanation of contents of deed. The recital that the 
 officer explained to the woman the contents of the deed is also abso- 
 lutely indispensable.^ 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.* So, also, where the certificate recited that the woman 
 "acknowledged and declared that she was well acquainted with the 
 contents of the deed," ^ 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 tlie con- 
 tents of said deed," without stating that the contents were explained 
 to her, is invadd.* 
 
 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.' Also, that, as a general rule, the 
 deed of a married woman, whether a mere relinquishment of her 
 contingent right of dower, or a conveyance of her separate estate, 
 
 ' Deery v. Cray, 5 Wall. (U. S.) 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, 3 Harr. & McH. (Md.) 19; 1 
 Am. Dec. 370. 
 
 ' Dewey v. Campau, 4 Mich. 565. But see the remarks of Millbb, J. , in 
 Deery v. Cray, 5 Wall. (U. S.) 795, to the effect that " separate" and "apart," as 
 used in the form, are synonymous terms. 
 
 3 Houston V. Kandoiph, 12 Leigh (Va.^, 445; Boiling v. Teel, 76 Va. 498. 
 
 *Chauvin v. Wagner, 18 Mo. 541, a doubtful decision. 
 
 ' Thomas v. Meier, 18 Mo. 573. 
 
 «Langton v. Marshall, 59 Tex. 296; Runge v. Sabin, (Tex.) 30 S. W. Rep. 
 568. 
 
 'Ante, p. 63. 
 
 9 
 
66 MARKETABLE TITLE TO EEAL ESTATE. 
 
 is void as between the parties, unless acknowledged and certified in 
 strict conformity with the requirements of the law.' 
 
 § 33. (Jc) 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 wiUingly. 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.^ 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.^ 
 
 > Mason V. Brock, 13 111. 273; 53 Am. Dec. 490; Martin v. Dwelly, 6 Wend. 
 (N. Y.) 9; 31 Am. Dec, 245. 
 
 ^ Clinch River Veneer Co. v. Kurth, 90 Va. 737, and cases cited below. 
 
 ^ Gases in which the csi'tificate was Mid insufficient. Where the statute provided 
 that the certificate should slio w that the vroman acljno wledged 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 saiu husband, or fear of his displeasure." Hawkins v. Burress, 
 1 Harr. & J. (Md.) 513. Language of statute, "signed, sealed and delivei'ed 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. (1) Wish not to retract. If the statute provides that the 
 wife, in addition to ackno^vledging the deed, shall state that she does 
 not wish to retract it, a certiiicate will be fatally defective if it does 
 not recite that fact.' It is not absolutely necessary that the certifi- 
 cate shall follow the precise language of the statute,' and the 
 employment of a wrong word, but one obviously intended for that 
 used in the statute, will not vitiate the instrument.' But inasmuch 
 
 the above instrument of her own free will and accord, and without any force, per- 
 suasion or threats from her said husband.'' Boykiu v. Rain, 38 Ala. 332,- 65 Am. 
 Dec. 849. 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.)233. 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.) 30 S. W. Rep. 495. 
 
 Gaaes in which the certificate was held sufficient. Where the statute provided that 
 the certificate should show that the woman acknowledged the deed "without 
 undue influence," and the certificate was that she acknowledged "that she exe- 
 cuted' the same freely and voluntarily * * * without fear or compulsion." 
 Ooode V. Smith, 18 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." Tubbs v. 
 Gtetewood, 26 Ark. 138. 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, 689. 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. S.) 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. 458. 
 
 ' Grove V. Zumbro, 14 Grat. (Va.) 501; Churchill v. Moore, 1 R. I. 209. 
 
 » Bateman's Petition, 11 R. I. 585, 588. 
 
 3 Belcher v. Weaver, 46 Tex. 398; 36 Am. Rep. 267. 
 
68 MAEKETABLE TITLE TO EEAE 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 oificer shall acknowledge or recognize the seal, 
 either in the body of the instrument or in the attestation clause. "^ 
 Without pausing to consider the cases either way, it suffices to say 
 that wherever by the lex rei sitce 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.^ And the fact that the 
 certificate bears date before the deed itself is immaterial.' 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,^ the grantee would prob- 
 ably be jusfified 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.' 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 though 
 the name were inserted in the form by the officer himself-, or the 
 paper were wholly in his handwriting, the omission of the signature 
 
 ' The cases may be seen in Mr. Devlin's work on Deeds, § 491. 
 
 » Webb V. Huff, 61 Tex. 677; Irving v. Brownell, 11 111. 402. 
 
 'Gest v. Flock, 3 N. J. Eq. 108. 
 
 *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 TENDERED BY THE VENDOR. 69 
 
 would be fatal, the actual subscription of his name being required 
 as a promulgation of the instrument.' If tlie certificate be by a 
 deputy, the name of the principal should be subscribed " by A. B., 
 deputy," etc.^ 
 
 § 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.^ 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 " N. P.," will suffice.'' 
 
 § 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.' This formality, how- 
 ever is not required in all the States, and where not required the 
 absence of the seal is immaterial." 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. 
 
 2 McCraven v. McGuire, 23 Miss. 100. 
 
 2 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 
 Erie & W. R. Co. v. Whitham, 155 111. 514; 40 N. E, Rep. 1014. 
 
 ■•Final v. Backus, 18 Mich. 218; Russ v, Wingate, 30 Miss. 440; Rawley v. 
 Beman, 12 111. 198. 
 
 » Mason v. Brock, 12 111. 273; 52 Am. Dec. 490; Hastings v. Vaughn, 5 Cal. 
 315; Booth v. Cook, 20 111. 129. The notary's seal must appear, when his certifi- 
 cate declares that he has afiSxed 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. S., 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 EEAL 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.^ Where by statute the officer is reqiiired 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.^ 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 co\irse, 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.' The fact that 
 the seal precedes instead of follows the signature of the officer is 
 immaterial.'' 
 
 § 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.^ 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,' 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,' make the certificate worthless. But with 
 respect to clerical mistakes and omissions there has been much ques- 
 
 iBucklen v. Hasterlik, 155 111. 423; 41 N. W. Rep. 561. 
 
 « Mason v. Brock, 13 111. 273; 53 Am. Dec. 490. 
 
 8 Mason v. Brock, 12 111. 278; 52 Am, Dec. 490. But see In re Nebe. 11 Nat. 
 Bankruptcy Reg. 289. 
 
 ^Gilchrist v. Dilday, 152 111. 207; 88 N. E. Rep. 572. ' 
 
 <■ Chester v. Rumsey, 26 111. 97; Stuart v. Dutton, 39 111. 91; Whitney v. 
 Arnold, 10 Cal. 581. 
 
 « Ingraham v. Grigg, 13 Sm. & M. (Miss.) 23. 
 
 ' Calumet & Chicago Canal Co. v. Russell, 68 111. 436. 
 
 ' Dickerson v. Davis, 13 Iowa, 353. In Spitznagle v. Van Hessch, 13 Neb. 333, 
 the omission of the words "and deed" from the clause "voluntary act and 
 deed" was held immaterial. So, also, where the word "deed" was inserted and 
 the word "act" omitted. Stuart v. Dutton, 39 111. 91. The omission of the 
 
SUFFICIENCY OF CONVEYANCE TENDEEBD BY THE A^ENDOE. 71 
 
 tion and doubt as to what of them are and what are not material. 
 The omission of the word "acknowledged,"' though obviously 
 inadvertent, has been held fatal to the certificate, and, on the other 
 hand, the absence of the word " known " from the clause " fully 
 made known to her,"^ 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 suificient, 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.'* The body of 
 the deed may sometimes be referred to for the purjaose of supplying 
 omissions from the certificate.* 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.^ 
 
 words " for the cousideration and purposes therein set forth" is fatal. Jacoway 
 V. Gault, 20 Ark. 190; 83 Am. Dec. 494. A certificate that the grantors aclsnowl- 
 edged a paper ''to be their act and deed" instead of following the statutory- 
 form, that they "signed, sealed and delivered," etc., is suiEcient. Den v. Ham- 
 ilton, 12 N. J. L. 109. 
 
 1 Stanton v. Button, 2 Conn. 327. 
 
 = 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, 
 
 " Bradford v. Dawson, 2 Ala. 203. 
 
 ' Bradford v. Dawson, 2 Ala. 203; Carter v. Chandrou, 21 Ala. 72. 
 
72 MAEKETABLB TITLE TO EEAL ESTATE. 
 
 § 41. (s) Amendment of the certificate. It will doubtless occur 
 to the reader that in most cases objections to the sufEciency of a certifi- 
 cate of acknowledgment are capable of easy removal by the tender 
 of a new certiiicate. It may be, also, that before the deed has been 
 delivered by the grantor the officer may legally amend his certifi- 
 cate,^ though it has been held in some cases that after the paper 
 has been signed and delivered by the latter his powers over it liave 
 ceased, and that he cannot fill up blanks, add to, nor change the 
 instrument so as to make it conform to the law.^ That he may not 
 do this scarcely admits of doubt in a case in which the deed has 
 been admitted to record.' But it is njt 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.* 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.'^ 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.^ Eut of course the certificate may 
 be attacked in a direct proceeding on the ground that the acknowl- 
 edgment was procured by duress or fraud.' The certificate must 
 
 'There is a (Uctiim to this effect in Elliot v. PiersoL 1 Pet. (U. S.) 328. 
 
 ' Wedel V. Herman, 59 Cal. 507; Merritt v. Yates, 71 111, 639; 33 Am. Rep. 128. 
 
 3 Elliot V. Piersol, 1 Pet. (U, S.) 338; 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. 
 
 *In Merritt v. Yates, 71 111. 636; 23 Am. Hep. 128, it is said that the only way 
 in which the defective certificate can be remedied is by reacknowledgment. 
 
 s Pendleton v. Button, 3 Conn. 406; Hayden v. Westcott, 11 Conn. 129. 
 
 « O'Ferrall v. Simplot, 4 Iowa, 381. 
 
 ' This principle is recognized by statute in Kentucky. Keith v. Silberberg, 
 (Ky.) 39 S. W. Rep. 316. 
 
 'Grider v. Land Mortgage Co., 99 Ala. 281; 12 So. Rep. 775. 
 
SUFFICIENCY OF CONVEYANCE TENDERED BY THE VENDOE. 73 
 
 set out in terms or in substance all that tlie statute requires. An 
 acknowledgment certified to have been made " according to the act 
 of the assembly in that case made and provided " is insuificient. ' 
 
 § 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.^ 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.' 
 
 The conveyance may be rejected if it does not include any ease- 
 ment or servitude to which the purchaser may be entitled under the 
 contract in other lands of the vendor.* 
 
 The purchaser is not bound to accept a deed containing erasures,'' 
 nor one containing a blank, left for the consideration money.^ 
 
 § 43. Waiver of objections. The purchaser should make his 
 objections to the deed, either in respect to form or substance, when 
 tendered. If he fail in this respect it has been held that he thereby 
 waives all objections.' 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 can- 
 not set up an objection to the deed for the first time when sued for 
 a breach of contract or for specific performance.' If the purchaser 
 takes possession and accepts a conveyance as satisfactory he cannot 
 afterwards object that it is insufficient.' 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 
 
 ' Flannagan v. Young, 2 Harr. & McH. (Md.) 38. 
 
 ' Millinger v. Daly, 56 Pa. St. 345. See 3 WasUb. Real Prop. 431 (639). 
 
 3 Morgan v. Smith, 11 111. 194. 
 
 * Wilson V. McNeal, 10 Watts (Pa.), 432. 
 
 ' Markley v. Swartzlander, 8 W. & S. (Pa.) 172. 
 
 * Moore v. Beckham, 4 Binn. (Pa.) 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. 
 'Morgan v. Stearns, 40 Cal. 434. 
 » Griswold V. Brock, 43 111. App. 203. 
 10 
 
74 MARKETABLE TITLE TO REAL ESTATE. 
 
 tender, or it will be waived.' In a case in which the purchaser took 
 possession under a deed to which he made no objection, and after- 
 wards refused to return the deed, it was held that he could not there- 
 after abandon the contract and recover back his deposit.^ 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.^ In such a case he will also be deemed 
 to have waived any objection to specific performance, based upon the 
 existence of an incumbrance on the property at the time the deed 
 was tendered.* If he retains the deed without objection to its suf- 
 ficiency he cannot afterwards defend a suit for the purchase money, 
 on the ground that the deed was not properly acknowledged.^ 
 
 ' Stryker v. Vanderbilt, 2.5 N. J. L. 68. 
 
 ' Kenniston v. Blatie, 131 Mass. 552. 
 
 s Moak V. Bryant, 51 Miss. 560. 
 
 * Ashbaugh v. Murphy, 90 111. 182. 
 
 'Morrison v. Faulkner, (Tex.) 21 8. 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 MAXIM TO JUDICIAL SALES. 
 Inherent defects of title. § 45. 
 
 Effect of confirmation of the sale. § 46. 
 Exceptions to the rule. § 47. 
 Fraud as it affects rights of purchasers at judicial sales. § 48. 
 Errors and irregularities in the proceedings. Collateral attack. § 49. 
 "Want of jurisdiction. § 50. 
 
 Matters occurring after jurisdiction has attached. § 51. 
 EraucL as ground for collateral attack. § 52. 
 SALES BY EXECUTORS ANB 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. § 60. 
 Title under void judgment. § 61. 
 Title under void sale. § 63. 
 TAX SALES. § 63. 
 
 SALES BY TRUSTEES, ASSIGNEES, ETC. g 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 ccmeat emptor (let 
 the buyer beware), as it respects titles to land, is peculiar to the 
 common law. It is unknown to the civil law.* 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) In charging a pur- 
 chaser with laches or negUgence in failing to avail himself of means 
 
 > Co. Litt. 103a; Brown Leg. Max. 768. 
 « Phillips V. Walsh, 66 N. 0. 233. 
 
76 MABKETABLE TITLE TO REAL ESTATE. 
 
 for ascertaining the validity of the title ; ' (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 efiect, 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 imder 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.^ The commissioner or other 
 officer making the sale is the mere agent of the court to receive and 
 report the purchaser's bid.' Objections to the title by a purchaser 
 at a judicial sale are either such as are founded iipon want of 
 jurisdiction, or errors and irregularities in the proceedings resulting 
 
 1 Phillips V. Walsh, 66 N. C. 233. 
 
 2 Dresbach v. Stein, 41 Ohio St. 70. 
 'Bolgiano v. Cook, 19 Md. 875. 
 
CAVEAT EMPTOE. 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.' 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,^ and he may have a reference to a master to 
 
 'Rorer Jud. Sales (2d ed.), §§ 150, 174, 476, 538, 603, 694, 933. 
 
 Corwin v. Benham, 2 Ohio St. 36. 
 
 Hously V. Lindsay, 10 Heisk. (Tenn.) 651. 
 
 Brown v. Wallace, 4 Gill & J. (Md.) 479. 
 
 Cashon v. Faina, 47 Mo. 138; 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 
 same rule. It is the policy of the law only to iuvest 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.) 153; Freeman Void Jud. Sales, § 48; Rorer Jud. 
 Sales (3d ed.), § 165; Fryer v. Rockefeller, 63 N. Y. 268; Trapier v. Waldo, IS 
 So. Car. 276. 
 
 This proposition appears to have been limited, in Pennsylvania, to cases ia 
 which the purchaser has been deceived or misled. De Haven's Appeal, 106 Pa. 
 
78 MARKETABLE TITLE TO REAL ESTATE. 
 
 determine whether a good title can be made.^ But if he permits 
 the sale to be coniirmed without objection, he cannot afterwards 
 refuse to pay the purchase money because of imperfections in the 
 title,^ or irregularities in the proceedings under which he pur- 
 
 St. 612, citing Scbug's Appeal, 14 W. N. C. (Pa.) 49; Blnford'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 difEerence being that in sales by the chancellor through his 
 commissioner the purchaser may have relief for defective title before the sale is 
 confirmed, but not after. Humphrey v. Wade, 84 Ky. 391; 1 S. W. Rep. 648. 
 
 A purchaser at a judicial sale cannot, in case of the existence of judgment 
 creditors not before the court, be required to complete his purchase without their 
 concurrence. Governor of Hospital v. West. Imp. Commrs., 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 (531). 
 
 Rule caveat emptor does not apply at j udicial sale as at execution sale, until 
 after confirmation. Charleston v. Blohme, 15 So. Car. 124; 40 Am. Rep. 690. 
 
 »2 Jones Mortgages, § 1648; Rorer on Jud. Sales (3d ed.), § 150; Gordon v. 
 Sims, 2 McCord Oh. (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 
 V. 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, 
 S Sumn. (U. S.) 318. 
 
 Threlkeld v. Campbell, 3 Grat. (Va.) 198; 44 Am. Dec. 384; Thomas v. David- 
 son, 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. 
 
 Hedrick v. Yount, 32 Kans. 344. 
 
 Barron v. Mullin, 21 Minn. 374. 
 
 Dresbach v. Steiu, 41 Ohio St. 70. 
 
 Capehart v. Dowery, 10 W. Va. 130. 
 
 Williamson v. Field, 2 Sandf. Ch. (N. Y.) 583. 
 
 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 EMPTOR. 79 
 
 chased.^ 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.^ We 
 shall see that the same rule prevails in cases of private sale.' It 
 seems to be the better opinion that confii-mation 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,* 
 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 caixat gropto?- 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 judgment 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. Bep. 343), 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, 34 W. Va. 689); 
 or that he departed from the prescribed order of sale (McGtavock v. Bell, 3 Coldw. 
 [Tenn.] 513); or that the appointment of the selling jfficer was invalid. Mech. 
 Sav. & B. L. Assn. v. O'Conner, 39 Ohio St. 651. 
 
 It cannot be denied that the rule stated in the text may produce hardship in 
 aoine 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. 
 
 ' Jennings v. Jennings, 9 Ala. 285; Wilson v. Kaben, 34 Neb. 368; 38 N. W. 
 Eep. 844. 
 
 'Riggs V. Pursell, 66 N. Y. 193; 74 N. Y. 371. 
 
 "Post, ""Waiver of Objections," § 85. 
 
 * Jennings v. Jenkins, 9 Ala. 285, 291. 
 
;80 MARKETABLE TITLE TO KEAL ESTATE. 
 
 as where the defect appears from records or docximents accessible 
 to him.' 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.^ 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.' A pur- 
 chaser at a judicial sale may, before confirmation, raise the 
 objection that the title is unmarketable ; he is not bound to show 
 that it is absolutely bad.^ He cannot be required to take a title 
 which he must support by bill of injunction against a third per- 
 son.^ Generally, a purchaser by private contract cannot be com- 
 pelled to take an equitable title,^ but the rule is otherwise, at 
 least in England, in case of purchases under decree in chancery.' 
 A purchaser at a judicial sale cannot, of course, object, after confir- 
 mation of the sale, that the title is unmarketable or doubtful.^ The 
 
 1 Smith V. Winn, 38 S, Car. 188; 17 8. E. Rep. 717. 
 
 * Campbell v. McCahan, 41 111. 45. It is the business of a purchaser at a judi- 
 cial 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. 3 Dan. Oh. Pr. 1456; 
 Daniel v. Leitch, 13 Grat. (Va.) 195. 
 
 ^Long V. Waring, 35 Ala. 625; McCartney v. King, 35 Ala. 681; Holmes v. 
 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 purchase money 
 on the ground that the title has failed. McManus v. Keith, 49 111. 388; Threlkeld 
 v. Campbell, 3 Grat. (Va.) 198; 44 Am. Dec. 384. 
 
 ■•See post, chapter 81, where, also, is considered what matters render a title 
 doubtful. Handy v. Waxter, (Md.) 28 Atl. Rep. 1035. 
 
 * 1 Sugd. Vend. (8th Am. ed.) 593; Shaw v. Wright, 3 Ves. 23. 
 « Post, ch. 30. 
 
 ' 1 Sugd. Vend. (8th Am. ed.) 152. The rule that a purchaser will not be com- 
 pelled 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. 
 593, at p. 594, it is said that this ' ' anomaly " is removed by statute, 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. 
 
 8 Boorum v. Tucker, (N. J. Eq.) 26 Atl. Rep. 456. 
 
CAVEAT EMPTOR. 81 
 
 rule caveat emptor applies as well to incumbrances as to defects of title 
 proper. After confirmation of the sale the existence of an incum- 
 brance upon the premises is no ground for detaining the pur- 
 chase money, nor for recovering it back from the plaintiff in the suit 
 in which the sale was made,' though, as will hereafter be seen, the 
 purchaser will in some cases be subrogated to the rights of such 
 plaintiff against the property purchased, or to the benefit of the lien,, 
 claim or incumbrance that he has been compelled to jiay to perfect 
 his title, or to the satisfaction of which the purchase money paid by 
 liim has been applied.' While the jiurchaser luay resist the confir- 
 mation of the sale on the ground that the title is defective, he will 
 not be relieved from his bid if the title can be perfected within a 
 reasonable time.^ The rule that the vendor may perfect the title 
 where time is not of the essence of the contract especially applies in 
 cases of judicial sale.'' 
 
 § 4Y. Exceptions to the rule eaoeat emptor. It is true, as a gen- 
 eral rule, that a purchaser at a judicial sale cannot detain or have 
 restitution of the j)urchase money on tlie 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 repi'esenta- 
 tions 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 dis- 
 covered 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 be refunded t(_) him.^ And it 
 
 ' Farmers' Bank v, Martin, 7 Md. 343; Farmers' Bank v. Peter, 13 Bush (Ky. ), 
 594; Williams v, Glenn, 87 Ky. 87; 7 S. W. Rep. 610; Worthingtou v. McRob- 
 erts, 9 Ala. 297. 
 
 ' Post, this chapter, " Subrogation," §§ 65, 66. 
 
 =1 Ormsby v. Terry, 6 Bush (Ky.), 558. 
 
 * 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. 
 
 ° Preston v. Fryer, 38 Md. 231. In this case it appeared that a married woman 
 had conveyed her separate estate to her husband, and afterward died before her 
 11 
 
82 ILAKKETABLE TITLE TO REAL ESTATE. 
 
 lijib even been held, irrespective of the question of fraud or mistake, 
 that if, while the fund is yet in court, tlie 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 
 purcliase money restored to the purchaser.' 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 tlie rule caveat (•injitur does not apply to 
 cases in which the court had no jurisdiction to direct the sale at 
 M'hich the purchaser bid, and that in such a case the purchaser 
 miglit have restitution of the purchase money even after confirma- 
 tion of the sale.'^ jVnd, 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 
 nulMty, but the offlrer 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 i-d'ceat 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 thi' 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 Slate v. Gaillard, 2 Bay (S. C), 11; 1 Am. Dec. 
 li2S; Means v. Brickell, 2 Hill (S. C), 657; Adams v. Kibler, 7 ISo. Car. 58; Mitch- 
 ell V. Pinckncy, 13 S. C^ar. 203. 
 
 ' Glenn v. Clapp, 11 Gill A- 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 to 
 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, 
 
 •Boggs V. Hargrave, 16 Cal. 559; 76 Am. Dec. 561, citing Darvin v. Hillfleld, 
 4 Sandf. Sup. Ct. (N. Y.) 468; Kolher v. Kolher, 3 Edw. Oh. (N. Y.) 69; Post v. 
 Leet, 8 Paige (N. Y.), 3-37; Seaman v. Hicks, 8 Paige (N. Y.), 655; Brown v. 
 Frost, 1(1 Paige (N. Y.), 248; 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 was 
 outstanding in one who had not been made a party, and the objection was sua- 
 
CAVEAT EMPTOR. 83 
 
 at a judicial sale which is void for want of jurisdiction in the court 
 to order the sale, cir for other cause, may resist the payment of the 
 purchase money, even after the purchaser's bid liad heen accepted 
 by the court.' 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 cavi'at emptor, as the 
 purchaser may inform himself of the want of jurisdiction by exam- 
 ining the proceedings in the cause.^ Nor does the rule apply where 
 there was no such land in existence as the officers of the court 
 undertook to sell.^ 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.'' 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 raade.^ 
 
 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 statutory and perhaps universal where 
 the objection is merely that the title is unmarketable,^ or where there 
 
 tained, and the piircliaser permitted to recover back the purchase money. Such 
 a principle goes far towards destroying altogether the application of the maxim 
 caveat emptor to judicial sales that have been confirmed, since in most instances 
 the purchaser seeks relief on the ground that the title is outstanding in a stranger. 
 
 ' Freeman Void Jud. Sales, § 48; Todd v. Dowd, 1 Mete. (Ky ) 381; Carpenter 
 V. Strother, 16 B. Mon. (Ky.) 289; Barrett v. Churchill, 18 B. Mon. (Ky.) 387. 
 
 'Past, this chapter, § 61. 
 
 2 Strodes v. Patton, 1 Brock. (U. S.) 228, per Marshall, C. .J. A decree 
 directed the sale of the lauds 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 gives 
 possession to the purchaser, even as against the party to the suit." 
 
 'Morrow v. Wessell, (Ky.) 1 S. W. Rep. 439. 
 
 « Worthington v. McBoberts, 9 Ala. 297. 
 
84 MARKETABLE TITLE TO REAL ESTATE. 
 
 is no probability that the purchase)' 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 l)y compelling the purchaser to pay Iiis 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 tlie fund accruing from the sale remained undis- 
 turbed in the hands of the court.' In other cases, a distinction has 
 been made between sales in jjartition, 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 para- 
 mount.^ 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. See, also, Charleston v, Blobme, 15 So. Car. 134; 40 Am. Rep. 690. The 
 case of Glenn v. Clapp, 11 Gill. & J. (JId.) 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 confirmatiou 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 tinder 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 I)ar- 
 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; 43 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 EMPTOR. 85 
 
 after confirmation of tlie sale, lias been evicted by title jDaramount, 
 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 qi^alified 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,' except, perhaps, where the judg- 
 ment or decree under which the purchase was made was void for 
 
 merely a sale by the law, in invitum, of sucli interest as the party has or may 
 have, in which the rule is ccmeat 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." 
 > Smith V. Winn, 38 So. Car. 188; 17 S. E. Rep. 717. 
 
86 MAKKETABLE TITLE TO REAL ESTATE. 
 
 want of jurisdiction ; ' nor, after the sale lias 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 pleadings in the case in which he purchased show 
 the true state of the title.^ 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 bhall receive a 
 good title, there can be no cause of action against the veudor if the 
 title fails.^ We have seen, however, that if the ]3erson making the 
 sale choose to execute a conveyance with general warranty to the 
 purchaser, he will be personally liable on the covenant.* 
 
 It has been held, with respect to the maxim ivveat 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, have 
 the contract rescinded and the purchase money returned, but that in 
 the latter case he must take the title at his risk.^ This distinction 
 does not appear to have been generally observed. 
 
 § 48. Fraud as it affects rights of purchaser at judicial sale. 
 Fraud, as it respects the rights of a purchaser at a judicial sale or 
 
 'See Boggs v. Hargrave, 16 Cal. 559; 76 Am. Dec. 561. 
 
 ''Eccles V. Timmons, 95 N, Car. 540. Even though the purchaser Avas fraudu- 
 lently induced to bid. Norton v. Neb. Loan i Tr. Co., 35 Neb. 466; 53 N. AV. 
 Rep. 481; 58 N. W. Rep 953. 
 
 'A vigorous application of the doctrine caveat emptor to judicial sales is found 
 in Evans v. 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 paramount, 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. 
 
 *■ Post, g 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 EMPTOR. 87 
 
 of one claiming under such purcliaser, is either: (1) Fraud antece- 
 dent to the sale, such as fraud in the procuration or rendition of the 
 judgment or decree in pursuance of which the sale is made ; (2) 
 Fraud in the sale itself, such as collusion between the officer selling 
 and the purchaser, by wliicli the property is sacrificed ; and (3) 
 Fraud on the part of the oflicer selling or parties in interest in 
 falsely stating the condition of the title, with intent to deceive. In 
 the first two instances tlie 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.' 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.^ 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.^ Thus, where tlie 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 repi'esentations of the officer making the sale and by 
 the clerk of the court, that tliere was no prior lien on tlie 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.* 
 
 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 
 emptor did not apply to judicial sales in North Cai'olina. 
 
 ' Post, this chapter, § .52. 
 
 ' Rorer on Jud. Sales (2d ed.), S 1^5; Preston v. Fryer, 38 Md. 221; Mervine 
 V. Vaulier, 3 Halst. Ch. (N. J.) 34, sembU; Bishop v. O'Connor 69 111. 431, 
 dictum. While there is no warranty at a judicial sale, the purchaser when sued 
 for the purchase money may set up misi'epresentations 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 hill 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. 
 
 3 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. 953. 
 
88 MAKKETABLE 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.^ 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.^ 
 
 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.' 
 
 § 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.* A judgment 
 founded upon a misconception of the law of the case, the court 
 having acquired jurisdiction of the parties, is voidable only.^ 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.^ It seems to be settled 
 
 ' Fore V. McKenzie, 58 Ala. 115. 
 
 ' Vande-rer v. Baker, 1.3 Pa. St. 126; Slowthower v. Gordon, 33 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. 
 
 ' Veeder v. Fonda, 3 Paige (N. Y.), 94; Seaman v. Hicks, 8 Paige (N. Y.), 656; 
 McGown V. Wilkins, 1 Paige (N. Y.), 130; Morris v. Mowatt, 2 Paige (N. Y.), 
 586; 23 Am. Dec. 601 : Kauffman v. Walker, 9 Md. 339. lu Tooley v. Kane, 1 
 Sm. & M. Ch. (Miss.) 51W, it was said that the court would set aside a sale in case 
 of fraud, even after confirmation. 
 
 '' Black on Judgments (1st ed.), 245, et seq. 
 
 "Freeman on .Judgments (4th ed.), § 117, et seci.; Co.v v. Davis. 17 Ala. 714; 52 
 Am. Dec. 199. 
 
 * Freeman Void Jud. Sales, § 30; Black on Judgments, § 261, et seq.; Rorer on 
 Jud. Sales (2d ed.), t; 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 I:MPT0E. 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 nnder such judgment or 
 decree,^ except iu 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.' 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.^ There may be a restitution of the proceeds of the sale to 
 
 Tprity; in the other mere waste paper. There can be no middle character assigned 
 to judicial proceedings whicli 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 oiir jurisprudence if an innocent purchaser, no 
 party to the suit, who had paid his money on the faith of an order of a court, 
 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 tlie 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 unreversed 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." 
 
 ' Rorer Jud. Sales, § 130. 
 
 ' Baker v. Baiter, 87 Ky. 461; 9 S. W. Rep. 383, 
 
 3 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. 882, and was 
 denied in Yooum v. Foreman, 14 Bush (Ky.), 494. 
 12 
 
90 MARKETABLE TITLE TO EEAL ESTATE. 
 
 the party injured by the error, but the purchaser's title remains 
 intact,' 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 tliat, if a purchaser at a judicial sale resists a contirraation 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 
 only. In the former event it is conceived that the purchaser would 
 
 'Vooi-his T. Blink of U. S., 10 Pet. (U. S.) 449. Freeman on Judgments, 
 § 484 (3d ed.); Freeman on Void Jud. Bales, p. 45 (3d ed.) ; Black on Judgments, 
 p. 320; Rorer Jud. Sales {M ed.), § 133; Burnett v. Hamill, 2 Sell. & Lcf. .577. 
 Voorhees v. Bank, 10 Pet. (U. S.) 449; McGoon v. Scales, 9 Wall. (U. S.) 23, 31. 
 Jackson v. Edwards, 22 Wend. (N. Y.) 493, .518. Cockey v. Cole, 28 Md. 276; 
 92 Am. Dec. 684; Benson v. Yellott, (Md.) 34 Atl. Rep. 451. Capehart v. 
 Dowery, 10 W. Va. 130. Yocum v. Foreman, 14 Bush (Ky.), 494: Bailey v. 
 Panning Orphan School, (Ky.) 14 S. W. Rep. 908. Stout v. Gully, (Colo.) 22 
 Pac. Rep. 954; Cheever v. Mintou, (Colo.) 21 Pac. Rep. 710. Gould v. Sternberg, 
 138 111. 510; 21 N. E. Rep. 628. England v. Garner, 90 N. Car. 197. If iurisdic- 
 tion 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 ]\Id. 375. 
 A purchaser under a. judgment merely erroneous acquires good title; otherwise, 
 if the judgment be void. Bowers v. Chancy, 31 Tex. 363. Jlere errors and 
 irregularities in the proceedings make no grounds for collateral attack. Wilson 
 V. Smith, 33 Grat, (Va.) 493. The remedy of the person injured b)' the pa.ssing 
 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 //'ring ir/ieii the 
 power xoas to he exercised was sufficient, but considered tlie question so doubtful 
 that but for the fact that all parties in interest were before Ihc 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. 
 
CAVEAT EMPTOR. 91 
 
 be excused from completing the purchase, and that in the latter 
 event he would be requii-ed to pay the purchase money and accept 
 a conveyance.* Thus, if the court decree a sale of testator's lauds 
 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 reversal 
 of a judgment does not affect the rights of a purchaser under the 
 judgment is observed. (3n 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.~ It 
 has been frequently said that a purchaser at a judicial sale cannot 
 question the regularity of the proceedings prior to the decree under 
 Avhich he purchased.^ This, it is obvious, means only errors and 
 irregularities prior to the sale that Avould 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, tliat 
 would make the decree absolutely void and open to collateral attack, 
 for it is clear that the purchaser showing such want of jurisdiction 
 
 ' 2 Jones on Mortgages, § 1647; Freeman Void Jud. Sales, p. 45 (3d ed.); Rorer 
 Jud. Sales, p. 65. Trapier v. Waldo, 16 S. C. 276; Bulow v. Witte, 3 S. C. 323. 
 Wright V, Edwards, 10 Oreg. 307; McCuUoch v. Estcs, 30 Oreg. 349; 25 Pao. Rep. 
 724. 
 
 ' In Cliue v. Catron, 22 Grat. (Va.)378, the curator of an idiot's estate and lands 
 brought a suit lor 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 con- 
 firmed, in violation of a statute which provided in express terms that the plain- 
 tiff, the curator, should not be admitted as a purchaser. It was afterwards 
 objected that title derived through such purchaser was, by reason of the prem- 
 ises, insufficient; but it was held that the court, having had jurisdiction to make 
 the sale, the confirmation thereof was mere error, for which the decree might have 
 been reversed, biit could not be attacked in a collateral proceeding. 
 
 ^ 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, where it is said that 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 pro- 
 ceedings. 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 beyond the decree, he is still 
 bound to sec that the court had jurisdiction. 
 
92 MARKETABLE TITLE TO REAL 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.' 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 
 
 ' In Perkins v. Fairfield, 11 Mass. 327, 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 Mm, aa 
 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. 
 (S. 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, Si 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, 81 III. 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. S. 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 
 
CAVKAT 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.' 
 
 § 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 surjjrise in the procuration of the 
 judgment.^ 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 sucli 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, 38 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 N. Y. 223; 88 N. E. Rep. 376. 
 "Where the record in a proceeding by an administrator to sell decedent's lands 
 for thepaj'ment of his debts, affirmatively shows that the court has jurisdiction 
 to order the sale, thi^t 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 court had jurisdiction. Saltonstall v. Riley, 28 Ala. 
 164; 65 Am. Dec. 334. 
 
 ' 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 EEAL ESTATE. 
 
 ant ;> (2) of tlie subject-matter of the suit ; (3) of the 7'es, or prop- 
 erty ill contest.- 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 hy which it is sought to attach liis lands 
 within the territorial jurisdiction of the court is essentially a pro- 
 ceeding ill rem, and the fact that proceedings by publication to 
 bring the defendant before the court ai-e 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.^ 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 /'c.s be wanting, for example, if the 
 
 present; and, third, the point decided must be, in substance and effect, within 
 the issue." >[unday 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 Millbr in this case, as follows; "It is 
 as easy to give a general and comi^rehensive definition of the word jurisdiction 
 as it is difficult to determine in special cases the precise conditions on which the 
 light 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 b}' 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 
 ma J' make concerning it. The power to render the decree or judgment which 
 the court may undertake to make in the particular cause, depends upon the 
 nature and extent of the authority vested in it by law in regard to the subject- 
 matter of the cause." 
 
 ' Black Judgmts. § 240. 
 
 = Cooper V. Reynolds, 10 Wall. (U. S.) 308; Yoorhees v. Banli of U. S., 10 Pet. 
 (U. S.) 44'J. These are leading cases, and iu 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 EHIPTOK. 95 
 
 trast subject consist of lands lying in anotlier State and consequently 
 beyond the jurisdiction of the court, a decree of the court dil-ecting 
 a sale of those lands will be absolutely void.' 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 whicli 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 tliose claiming under them.' 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, sucli as the defendant himself, liis heirs and assigns. 
 Tliese cannot maintain ejectment against the purchaser or his assigns 
 unless the proceedings were absolutely void for want of jurisdic- 
 tion.' But the title of a purchaser at a judicial sale maj' 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 pi'operty 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 (/( 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. 2.50; 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. 
 McCh-acken v. Flanagan, 127 N. Y. 493; 141 N. Y. 174; 36 N. E. Rep. 10. 
 
 ' As was held in Contee v, Lyons, 19 D. C. 307. 
 
 2 See cases cited post, "Doubtful Title," ch. 31, § 297, notes; Stansbury v. 
 Inglehart, 20 Dist. Col. 134; Frost v. Atwood, 51 Mich. 360. 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 judgment, which has for its sole object the vacation of the judgment 
 
96 MAEKETABLE TITLE TO EEAL 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 i^art of the court, or of any error or 
 irregularity in the proceedings, whether they I'cnder the judgment 
 absolutely void or voidable only.^ 
 
 Jurisdiction of the person consists in power over the person of 
 the defendant, obtained by the service of proces.s or by the volun- 
 tary appearance of the defendant in the progress of tlie cause. If 
 the court have not jurisdiction of the cause upon other grounds, a 
 judgment founded ujDon process, insufficient of itself, or insutRciently 
 executed, to bring the defendant into court, is absolutely void.- 
 
 upon the ground of fraud, surprise or mistake, is not a ' ' collateral attack " in the 
 sense in which that expression is generality 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 au}' 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. .Tones, 35 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. 
 
 ' 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 reUef 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.^ 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.^ 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.^ 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 
 
 Marye, (Va.) 4 S. B. 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. 
 
 ' 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 nulhty and judgment was entered for the plaintiff in 
 ejectment. So, also, in Corwith v. Griffing, 31 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 MAEKETABLE TITLE TO EEAL 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.^ 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.'' 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.^ 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 
 
 ' Elliott V. Piersol, 1 Pet. (U. S.) 328. The proceeding in which the court 
 directed the amended certificate to be made appears to have been altogether 
 ex parte. The order was ma;de on the motion of the purchaser about ten years 
 after the original certificate was made. If the proceeding had been inter partes 
 and the power of the court to make the order had been disputed, it would be 
 difBcult 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. 
 
 ■^Black on Judgments, §§271, 273, 376; Thompson v. Tolmie, 3 Pet. (U. S.) 
 157; Grignou v. Astor, 3 How. (U, S.) 319; Florentine v. Barton, 2 Wall. (U. S.) 
 308. 
 
 "Rorer Jud. Sales, § 38; Contee v. Lyons, 19 D. C. 307. 
 
 ■i Evans v. Ashby, 33 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 EMPTOR. 99 
 
 jurisdictional facts would in effect neutralize the rule that where 
 iJie 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 tlie 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 
 tlie record, that is, extraneous evidence, M-ill 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 praesmmmtur rite et 
 solenniter esse acta} Especially will such a presumption be made 
 
 1 Black on Judgments, g§ 271, 373, 376. Thompson v. Tolmie, 2 Pet. (U. S.) 
 157; Grignon v. Astor, 3 How, (U. S.) 319; Parker v, Kane, 23 How, (U, S.) 1; 
 4 Wis. 1; 65 Am, Dec. 483. Duncanson v. Manson, 3 App. Cas, (D. C.) 361, 
 Menefee v, Marye, (Va,) 4 S, E, Rep. 736. Wliere 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. 143, Where the record shows that process was ordered 
 against Infant defendants, and that at a following term a guardian ad litem 
 ■was appointed, it will be presumed, on collateral attack, that such defend- 
 ants were brought regularly into court, though no actual service of pro- 
 cess on them appears, Thompson v. Doe, 8 Blackf, (Ind,) 336; Brack- 
 enridge v. Dawson, 7 Ind. 383. See, also, Horner v. State Bank, 1 Ind. 130; 48 
 Am, Dec. 855. 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 presum.ed that the 
 infants were present in court when the motion was made, and tliat they had 
 notice of the proceeding. Thompson v. Hart, 8 Blackf, (Ind,) 336; Horner v. 
 State Bank, 1 Ind, 130; 48 Am, Deo. 355; Waltz v. Barroway, 35 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, 32 Ind. 15. 
 But where it afiirmatively appears from the record, as by the statement con- 
 
100 MARKETABLE TITLE TO REAL ESTATE. 
 
 \yhen the record is very ancient.' 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 iirst 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 uo 
 notice of the proceedings, and were not in court during their pendency, the 
 judgment will be held void on collateral attack. Doe v. Anderson, 5 Ind. 33. 
 In Ford v. 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 sale, 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. 
 
 • Shackelford v. Miller, 9 Dana (Ky.), 273; Baker v. Coe, 20 Tex. 429. 
 
 « Black on Judgments (2d ed.), § 276; Griguon v. Astor, 3 How. (U. S.) 819, 
 340, leading case. In Dorsey v. Kendall, 8 Bush (Ky.), 294, 298, it was held that 
 a judgment, upon service by publication, could not be collaterally attacked upon 
 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. 539. It is to be borne in mind that 
 while recitals in the record cannot be contradicted in a collateral proceeding, they 
 are net conclusive upon the parlies if founded in fraud or mistake. Thus, it 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 iu 
 the cause by which he is deprived of his rights. 
 
CAVEAT EMPTOE. 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.' To illustrate the second rule, if the return indorsed by 
 an officer on original process in a suit show service thereof on tlie 
 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.' 
 
 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. 
 JSTo 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.' 
 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 j^^risdiction ; in other 
 words, courts in which the great mass of civil rights are enforceable 
 in the first instance.* 
 
 ' Thompson v. Tolmie, 2 Pet. (U. S.) 157. 
 
 « Burke v, Elliot, 4 Ired. L. (N. C.) 355, 359; 43 Am. Dec. 142. 
 
 ^Qrignou v. Astor, 2 How. Pr. (U. S.) 819, 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 jiirisdiction in respect to its statutor}^ 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 heen exhausted, that 
 being by statute a condition precedent to the power to order the sale, was abso- 
 lutely void and afforded no protection to the purchaser. And in Strouse v. Dren- 
 nau, 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. 
 
 ■* In this connection the following observation from Mr. Black's excellent woi-k 
 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 tlie record, it will be presumed that the court was satisfied of 
 the existence of those facts before entering a judgment or decree. 
 Suppose a plain tifE 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 iirst 
 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 iu which it is provided 
 
 character of the controversy. And these arc 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." 
 
 ' See Given v. McCarroll, 1 Sm. & M. (Miss.) 351. Laughraan v. Thompson, & 
 Sm. & JI. (Miss.) 259. Burke v. Elliott, 4 Ired. L. (N. C.) 355, 358; 42 Am. Deo. 
 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,^ nor, generally, where. 
 ever it is provided that the record shall show certain jurisdictional 
 facts.^ 
 
 It follows from the foregoing principles that the only case, apart 
 fi-om fraud, mistake or stn-prise, 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 M'hich 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 insuificient to have conferred jurisdiction.' 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 decree 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. Deo. 53. In Bannister 
 V. Higginson, 15 Me. 73, it was held that if an officer's return of a levy of an attach- 
 ment on land do not show by whom the appraisers of the 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. 
 ' Hyde v. Redding, 74 Cal. 493, 501; 16 Pac. Rep. 380. 
 
 2 Thornton v. Mulquinne, 13 lo. 549; Babbitt v. Doe, 4 Ind. 355, .letnble. 
 
 3 Black on Judgments, § 278. 
 
104 MARKETABLE TITLE TO EEAL 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.' 
 
 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 aflirniatively 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 Ji/diGata, and which are never passed 
 upon until drawn in question in some subsequent proceeding involv- 
 ing the title of the purchaser.^ Such, it is conceived, would be a 
 conveyance to the purchaser, the sale not having, as yet, been con- 
 
 > 1 Black Judgmeuts, ch. 12, p. 297. 
 
 'Upson V. Howe, 3 Strohh. (S. C.) 108; 49 Am. Dec. 633. 
 
CAVEAT EMPTOR. 105 
 
 firmed.^ The iudgment too may be voidable because the result of 
 fraud or mistake. Aud the sale itself and a conveyance in pursu- 
 ance thereof may confer no rights upon the purcliaser because 
 effected by fraudulent collusion with the officer of the court or in 
 other ways tainted with fraud.^ 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.' A decree directing the distribution of 
 the purchase money arising from the sale or directing that a deed be 
 made to tlie purchaser is in effect a confirmation of the sale.^ 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.^ 
 
 § 52. 2<'raud as groiond 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.^ 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.'' An illustration of this principle is afforded by 
 the case of Mitchell v. Kintzer.^ This was an action of ejectment 
 a,gainst a married woman by one who purchased the premises in dis- 
 
 ' See Freeman Void Jud. Sales, § 43. 
 
 ''In Singletaiy v. Carter, 1 Bailey L. (S. C.) 467; 21 Am. Dec. 480, a levy made 
 by a deputy sheriff under an execution, in wMch he himself was plaintiff, was 
 held void, and a sale and deed in pursuance thereof inoperative to vest title in 
 the purchaser. 
 
 2 Freeman Void Jiid. Sales, § 44; Rorer Jud. Sales, §§ 3, 16, 107, 129. 
 
 ^ Agan V. Shannon, (Mo.) 15 S. W. Rep. 757. 
 
 5 Harrison v. Harrison, 1 Md. Ch. 331. 
 
 "Ante, p. 86. 
 
 ' Fermor's Case, Co. Rep. pt. 3, p. 77; Vandever v. Baker, 18 Pa. St. 131, obiter; 
 Wilson V. Smith, 23 Grat. (Va.) 493; Lancaster v. Wilson, 27 Grat. (Va.) 634. 
 
 85 Pa. St. 216; 47 Am. Dec. 408. See, also, Rhoads v. Selin, 4 Wash. C. C. (U. 
 S.) 715. 
 
 14 
 
106 MAEKETABLE TITLE TO REAL ESTA.TE. 
 
 pute at an execution sale against the husband. The premises con- 
 sisted of the share of the wife in her deceased fatlier'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 tlie 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. ^ 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.^ It sometimes happens that the ofiicer 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.' 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. SIcKinnon, 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 ofBcer 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. McLaurln v. McLaurin, 106 N. C. 331; 10 S. E. 
 Rep. 1056. 
 
 ' Freeman Void Jud. Sales, § 40. Patton v. Thompson, 3 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.' 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 sliould 
 be vacated in some direct proceeding between the parties rather 
 than by way of collateral attack.^ It has been so held in a case in- 
 which certain lands were embraced in a decree for sale by mistake.^ 
 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.* 
 
 Wilson, 27 Grat. (Va.) 624. Merwin v. Smith, 1 Gr. Ch. (N. J.) 183; 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, he shown in 
 avoidance of the sale. Griffith v. Bogert, 18 How. (U. S.) 158. 
 
 1 "Walker v. Ruflfner, 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, 103 N. Car. 112; 9 S. E. Rep. 634. 
 
 2 Jones V. Coffey, 97 N. Car. 347; 3 S. E. Rep. 165. This was an action to 
 recover lands sold by mistake under decree in a cause to which the now plainttfTs 
 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, 28 111. 43; 74 Am, Dec. 179; Keuohenbeiser v. Beckert, 41 111. 172; 
 Lloyd V. Kirkwood, 112 111. 329, 338; Griswold v. Hicks, (111.) 24 N. E, Rep. 68. 
 
 «Hudgin V. Hudgin, 6 Grat. (Va.) 820; 52 Am. Dec. 124; Haymond v. Cam- 
 den, 23 W. Va. 180; Hull v. Hull, (W. Va.) 13 S. E. Rep. 49. In this case the 
 court, by Brannon, J., after declaring the rule stated in the text, continued t 
 
108 MAEKETABLE TITLE TO EEAL ESTATE. 
 
 § 53. SALES BY EXECTJTOKS AND ADMINISTKATOKS. 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 authoritj^ to sell is complete as soon as the formal- 
 ities of tlie 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.' 
 
 It has been broadly stated that the maxim caveat emptor applies 
 in all of its strictness to sales by executors and administrators.' This 
 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, sliould, 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,' 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 justice demand this, and courts of eqiiity have raised up this 
 principle, a heing 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." 
 
 ' Woerner Law of Administration, § 464 ; Freeman Void Jud. Sales, § 9. 
 
 "^ Woerner Law of Administration, § 484. 
 
 ^2 Brock. (C. C.)313. 
 
CAVEAT ElIPTOE. 109 
 
 was able to convey a clear title. The opiuion 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.* 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.'' The distinction, for the purposes of this work, is com- 
 paratively unimportant, for we are here considering defects for 
 which a purchaser may reject a title ; and, to a purchaser from an 
 administrator who has made a fraudulent sale to himself, it is imma- 
 terial whether the title is liable to be attacked in a collateral pro- 
 ceeding or in a direct proceeding, since in either case, if charged 
 with notice of the fraud, he would lose the estate. 
 
 § 54. Sales in pursuance of judicial license. The maxim 
 caveat emptor has been rigorously applied in most of the American 
 States to sales by executors and administrators under judicial 
 authority, whether in respect to inherent defects in the title or to- 
 those which result from errors and irregularities in the proceedings 
 whence the authority to sell is derived. The sale, like a tax sale, 
 is of the title such as it is, good or bad, and the purchaser is conclu- 
 sively presumed to have purchased with that understanding.' This 
 
 I Davies v. Hughes, (Va.) 11 8. E. Rep. 488. 
 
 ■' Ante, p. 107. 
 
 " Woerner Law of Adm. § 484; Rorer on Jud. Sales (2d ed.), § 476; Freeman 
 Void Jud. Sales, § 48; Schouler on Exrs. (2d ed.) § 515. Worthington v. 
 McRoberts, 9 Ala. 297; Corbett v. Dawkins, 54 Ala. 282; Burns v. Hamilton, 
 33 Ala. 210; 70 Am. Dec. 570; Boiling v. Jones, 67 Ala. 508. 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, 89 111. 256; 89 Am. Dec. 308; McConnell v. 
 Smith, 39 111. 379; Wing v. Dodge, 80 111. 564; Tilley v. Bridges, 105 111. 886. 
 Ripley v. Kepler, 94 Ind. 308. Hale v. Marquette, 69 Iowa, 876. Short v. 
 Porter 44 Miss. 538; Hutchins v. Brooks, 31 Miss. 430. Bashore v. Whisler, 3 
 Watts (Pa.), 490; Fox v. Mensch, 8 W. & S. (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. Buruett, 
 
no MARKETABLE TITLE TO REAL ESTATE. 
 
 Tule 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,' 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, is functus officii? But 
 in other States it seems that such sales are rejjorted to court for 
 confirmation.* "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.^ If the purchaser from an 
 
 89 Tex. 177. A harsh application of the rule stated in the text will he found in the 
 case of Boiling v. Jones, 67 Ala. 508, where a widow, who j)urchased 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. Stoke, J., dissenting. The 
 rule applies whether the sale by the administrator be public or private. Kirk- 
 laud v. Wade, 61 Ga. 478 
 
 1 Thompson v. Munger, 15 Tex. 533; 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. 
 
 8 Smith V. Arnold, 5 Mason (U. S.), 414, 420. 
 
 ^ See Rorer on Jud. Sales, § 362; 2 Woerner Am. Law of Admn. § 1059. 
 
 « Garrett V. Lynch, 45 Ala. 204; Burns v. Hamilton, 33 Ala. 310; 70 Am. Dec. 570. 
 
CAVEAT EMPTOR. HI 
 
 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.* 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.^ 
 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.' A fortiori, the purchaser cannot be relieved if the 
 representation was made in good faith.* 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.^ An administrator has no right to agree that the 
 
 1 Hale V. Marquette, 69 Iowa, 376; Mitchell v. McMuUen, 59 Mo. 353. 
 
 2 Colbert v. Moore, 64 Qa. 503; 6a. Code, § 3638. 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, 30 Tex. 103. 
 
 ^Fox V. Mensoh, 3 W. & S. (Pa.) 444. Even though the representation by the 
 administrator was fraudulently made. Ripley v. Kepler, 94 Ind. 308. 
 
 " Coombs V. Lane, 17 Tex. 280. 
 
 'Woerner Am. Law of Admn. § 484; Wilson v. White, 3 Dev. Eq. (N. Car.) 
 39. 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. 533; 65 Am. Dec. 176; Hawpe v. Smith, 25 Tex. Supp. 448. 
 
112 MAEKETABLE TITLE TO KEAL ESTATE. 
 
 sale shall be free from incumbrances,^ and if an incumbrance exist, 
 the purchaser must take subject thereto. J^or can he refuse to pay 
 the purchase money on the ground that the title was advertised to 
 be good.^ ISTor 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.^ If 
 there is a cloud upon the title he cannot even apply to a court of 
 equity to remove it.* 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, wlien he knovcs that there is no title, the 
 contract will be rescinded and the parties placed in stat^i quo? 
 
 ' Bickley v. Biddle, 33 Pa. St. 376. But see Reiner's Appeal, (Pa. St.) 12 Atl. 
 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 he compelled to discharge the 
 lien. 
 
 ^Halleck v. Guy, Q 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. 
 
 ' Schouler on Executors (2d ed.), § 312. 
 
 " Le Moyne v. Quimby, 70 111. 399. 
 
 ' Hickson v. Linggold, 47 Ala. 449 ; Fore v. 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; 63 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.) 330. 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 v. Ammon, 
 27 Pa. St. 172. Love v. Berry, 23 Tex. 371. " If the administrator makes repre- 
 sentations which he 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 EMPTOR. 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 tlie 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.' 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.^ So, also, it has been held that 
 a purchaser from an administrator whose powers have been revoked 
 will be relieved in equity.^ 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.* 
 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 pi'ove a serious detriment to estates." 
 Caton, J., in Ray v. Virgin, 13 111. 316. 
 
 'Grwin V. McCarroll, 1 Sm. & M. (Miss.) 351; Laughman v. Thompson, 6 Sm. 
 & M. (Miss.) 359; Worten v. Howard, 3 Sm. & M. (Miss.) 530; 41 Am. Dec. 607. 
 Compare Mellen v. Boarman, 18 Sm. & M. 100. Contra, Bishop v. O'Connor, 69 
 m. 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, 39 Tex. 177, that a pur- 
 chaser at an administrator's sale is to be regarded as a mere speculator; to win if 
 he gets a good title, and to lose if the title be worthless. 
 
 3 Levy V. Riley, 4 Oreg. 393. 
 
 *Woerner Am. Law of Admn. § 485; Freeman Void Jud. Sales, § 48. Wyatt 
 V. Rambo, 39 Ala. 517; 68 Am. Dec. 89; Ikelheimer v. Chapman, 33 Ala. 676; 
 Riddle v. Hill, 51 Ala. 334. Campbell v. Brown, 6 How. (Miss.) 330. Bartee v. 
 Tompkins, 4 Sneed (Tenn.), 633. 
 15 
 
114 MARKETABLE TITLE TO EEAL ESTATE. 
 
 be, in most instances, palpable upon the face of the proceedings, 
 and one to which the attention of the purchaser would naturally be 
 directed in the first instance.' 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.^ It seems that a purchaser at a void probate sale cannot, 
 where time is not material, rescind the contract if the heirs are will- 
 ing to join in a conveyance of the land to him.' In the State of 
 New York a purchaser at a probate sale may refuse to complete his 
 purchase if the title be bad. He cannot be compelled to accept an 
 unmarketable title.'' 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 M'ill 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 hona 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.'^ 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 iu respect to want 
 
 ' Ante, p. 79. 
 
 = Post, this chapter, § 65. 
 
 ^ Lamkin v. Reese, 7 Ala. 170. See, also, Lampton v. Usher, 7 B. Mon. (Ky.) 57. 
 
 * 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. 
 
 5 Poor v. Boyce, 12 Tex. 140. 
 
 « Grignon v. Astor, 2 How. (U. S.) 243. 
 
CAVEAT EMPTOR. 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.^ 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.^ So, 
 also, where the proceedings show upon their face that the adminis- 
 trator was not entitled to letters of administration.'' So, where no 
 order of publication of the application for license to sell is made, as 
 required by statute.'' 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.^ 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 avennent that the 
 estate is indebted is not simply reversible for error, but is void and 
 open to collateral attack.^ 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, unless the sale has been confirmed 
 
 '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 
 Jnd. Sales, chap. 2; 3 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.) 351. 
 
 'Haug V. Primeau, 98 Mich. 91; 57 N. W. Rep. 35; Templeton v. Falls Land 
 Co., 77 Tex. 55; 13 S. W. Rep. 964, and Texas cases there cited. 
 
 ■i Cunningham v. Anderson, (Mo.) 17 S. W. Rep. 973. 
 
 ' In re John's Estate, 21 Civ. Proc. R. (N. Y.) 336; 18 N. Y. Supp. 173. 
 
 * Lyons V. McCurdy, 90 Ala. 493; 8 So. Rep. 53; citing Tyson v. Brown, 64 
 Ala. 344; Wilburn v. McCalley, 63 Ala. 436; Quarles v. ('ampbell, 73 Ala. 64; 
 Robertson v. Bradford, 70 Ala. 385; Meadows v. Meadows, 73 Ala. 356; Land- 
 ford V. Dunkton, 71 Ala. 594; McCorkle v. Rhea, 75 Ala. 313; Ballard v. Johns, 
 80 Ala. 33; Morgan v. Farned, 83 Ala. 367; 3 So. Rep. 798. 
 
116 MARKETABLE TITLE TO EEAL ESTATE. 
 
 and a conveyance made.' 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.^ 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.* 
 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.* 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.' 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.* 
 
 On the other hand, it lias been held that the validity of an adminis- 
 trator's sale will not be affected by tlie fact that he gave no bond to 
 conduct the sale properly,'' 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., 
 48 Pa. St. 169. 
 
 ' Gregson v. Tuson, (Mass.) 26 N. B. Rep. 874. Contra, Comstock v. Crawford, 
 3 Wall. (U. S.) 396; Hodges v. Fabian, (So. Car.) 9 S. E. Rep. 820. 
 
 3 Needham v. Salt Lake City, (Utah) 26 Pac. Rep. 920; citing Comstock v. 
 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 
 in 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. 
 
 ii 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 havg 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; Coulsou 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. 
 
 ' Wyman y. Campbell, 6 Port. (Ala.) 219; 31 Am. Dec. 677. 
 
CAVEAT EMPTOR. 117 
 
 necessity for the sale,' nor tliat an inadequate price was realized for 
 the property sold,^ nor that the administrator died pending the pro- 
 ceeding to sell.^ 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.* 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.^ 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.^ The regularity and validitj^ 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.'' 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.^ 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.' But the liability of the title to attack on this 
 
 'Lynch v. Baxter, 4 Tex. 431; 51 Am. Deo. 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. 
 Eep. 6. 
 
 ■"Berrian v. Rogers, 43 Fed. 467; Mohr v. Maniere, 101 U. S. 417. Contra, Mohr 
 V. Tulip, 40 Wis. 66. 
 
 ' Richardson v. Butler, 82 Gal. 174; 23 Puc. Rep. 9. 
 
 • Ante, p. 99. McMillan v. Reeves, 103 N. Car. 550; 9 S. E. Rep. 449, where 
 the authority of counsel to act for those not served with process was presumed 
 to exist, the same not having been disputed in the proceedings complained of. 
 Mills V. Herndon, 77 Tex. 89; 13 S. W. Rep. 854; Price v. Springfield Real 
 Estate Assn., (Mo.) 10 S. W. Rep. 57. 
 
 ' Poor V. Boyce, 12 Tex. 440. 
 
 8 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 MAEKETABLE TITLE TO REAL ESTATE. 
 
 ground w'Al not relieve the purchaser from the contract, if the fraud 
 appeared upon tlie face of the proceedings,^ and might have been 
 discovered by tlie exercise of due dihgence.' 
 
 § 57. SHERIFF'S SALES. Want of title in execution defendant. 
 General rules. 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. 
 
 ' Rice V. Burnett, 39 Tex. 177. 
 
 Treeraan on Executions, § 335; Herman on Executions, p. 895; Freeman Void 
 Jud. Sales, §48; Roreron Jud. Sales, p. 603; Title "Sheriffs," Am. &Eng. Encyc. 
 of L. The Monte Allegre, 9 Wh. (U. S.) 616. Here the sale was of personal 
 property, but the case lias been constantly cited in applying the same principle 
 to sales of realty under execution. Lang v. Waring, 25 Ala. 625; 60 Am. Dec. 
 583; Goodbar v. Daniel, 88 Ala. 583; 7 So. Rep. 254; Thomas v. Glazener, 90 
 Ala. 537; 8 So. Rep. 153. Dauly v. Rector, 10 Ark. 211; 1 Am. Dec. 243. Johns 
 V. Frick, 22 Gal. 512. Methvin v. Bexley, 18 Ga. 551. England v. Clark, 4 
 Scam. (111.) 486; Walbridge v. Day, 31 111. 379; 88 Am. Dec. 227; Bassett v. 
 Lockard, 60 111. 164; Alday v. Rock Island Co., 45 111. App. 62. Vest v. Weir, 
 4 Blackf. (Ind.) 135; Walden v. Gridley, 36 Ind, 538. Holtzinger v. Edwards, 51 
 Iowa, .388. Treptow v. Buse, 10 Kans. 170. Hand v. Grant, 10 Smed. & M. 
 (Miss.) 514; 43 Am, Dec. 528. Miller v. Finn, 1 Neb. 254. Mervin v. Vanlier, 7 
 N. J. Eq. 34. Vattier v. Lytic, 6 Ohio, 477; Corwin v. Benham, 2 Ohio St. 36; 
 Creps V. Baird, 3 Ohio St. 277. Weidler v. Bank, 11 Serg. & R. (Pa.) 134; 
 Auwerter v. Mathiot, 9 Serg. & R. (Pa.) 399; Friedly v. Scheetz, 9 Serg. & R. 
 (Pa.) 159; 11 Am. Deo. 691; Smith v. Painter, 5 Serg. & R. (Pa.) 223; 9 Am. 
 
CAVEAT EMPTOE. 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.^ Therefore, stringent applications of the rule ccmeat 
 
 Dec. 344; Coyne v. Souther, 61 Pa. St. 456; Wills v. Van Dyke, 106 Pa. St. 111. 
 Upham v. Hamill, 11 R. I. 565; 33 Am. Rep. 535. Thayer v. SherifC, 3 Bay (S. 
 Car.), 171; Harth v. Gibbs, 3 Rich. L. (S. Car.) 316; Wingo v. Brown, 14 Rich. 
 (S. Car.) 103. Oberthier v. Stroud, 33 Tex. 535. Henderson v. Overton, 3 Yerg. 
 (Tenn.) 393; 34 Am. Dec. 493, unless the sale was made under a void judgment; 
 Bostick V. Wiuton, 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 sheriif 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 cawat 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, 3 
 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." 
 > Methvin v. Bexley, 18 Ga. 551. 
 
120 MAEKETABLB TITLE TO EBAL ESTATE. 
 
 emptor will be found in cases of sales by slierifEs or other minis- 
 terial ofScers under executions, attachments, or other legal process.' 
 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.' The purchaser at a sale under execution not only takes 
 merely such 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.* 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 title from the execution 
 debtor wliere such person had purchased from the debtor and paid tlie 
 purchase money without taking a conveyance before the execution 
 sale.^ 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 lis pendens had not been 
 docketed, as the law required.^ So, also, where the execution plain- 
 tiff had agreed with tlie defendant that the lien of his judgment 
 should be postponed and made subsequent to a junior mortgage.' 
 But inasmuch as 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 rule caveat emptor. Walbridge v. Day. 31 111. 379; 83 Am. Dec. 
 337. 
 
 ' Oberthier v. Stroud, 33 Tex. 533; Boro v. Harris, 13 Lea (Tenu.), 36. 
 
 "Osterman v. Baldwin, 6 Wall. (U. S.) 116; Bell v. Flaherty, 45 Miss. 694. See 
 cases cited Vol. 6, U. S. Dig. (1st series) 141, § 2302. 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 have 
 been enabled to demand a conveyance of the title. Walke v. Moody, 65 N. Car. 
 599; Morgan v. Bouse, 53 Mo. 219. 
 
 * Vannoy v. Martin, 6 Ired. Eq. (N. Car.) 169; 51 Am. Dec. 418. 
 
 » Georgetown v. Smith, 4 Grauch 0. C. (U. S.) 91. 
 
 8 Rollins v. Henry, 78 N. Car. 343. 
 
 'Frost V. Yonkers Sav, Bank, 70 N. Y. 553; 36 Am. Rep. 637. 
 
CAVEAT EMPTOE. 121 
 
 purchaser under the execution succeeding to the benefit of that hen 
 will take the title discharged from the equitable rights of the pur- 
 chaser from the judgment debtor.* 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.^ 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.' ISTor 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.'' 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.^ 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." 
 
 ' Halley v. Oldham, 5 B. Mon. (Ky.) 233; 41 Am. Dec. 262; Riley v. Million, 4 
 J, J. M. (Ky.) 395; Fosdiok v. Burr, 8 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; GofC v. 
 O'Conner, 16 111. 431. Campbell v. Lowe, 9 Md. 500; 66 Am, Dec. 389. Wil- 
 liamson V. Johnston, 13 N. J. L. 86; Den v. Young, 13 N. J. L. 300; Bloom v. 
 Welsh, 27 N. J. L. 177. 
 
 'Freeman Void Jud. Sales, § 49. See "Mistake" oh. 35; Wingo v. Brown, 14 
 Rich. L. (S. 0.) 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. 
 
 ■1 Upham V. Hamill, 11 R. I. 565; 23 Am. Rep. 525. 
 
 * Cummings' Appeal, 38 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, 3 
 Bailey (S. C), 413, 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 MAEKETABLE TITLE TO EEAL ESTATE. 
 
 In cei'tain of the States, a purchaser under execution, who has 
 been evicted by one having a title paramount to that of tlie execu- 
 tion debtor, has been permitted to recover the purchase money from 
 the execution plaintiff upon the ground that, ex aequo et hono, the 
 purchaser is better entitled to the money than the execution cred- 
 itor is to withhold it from him.' 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.^ 
 And these cases, it is believed, are sustainable both upon principle 
 and authority. Of course, however, the creditor may, by his con- 
 
 ' Henderson v. Overton, 3 Yerg. (Tenn.) 393; 24 Am. Dec. 492. Chapman v. 
 Brooklyn, 40 N. Y. 372. Citizens' Bank v. Freitag, 37 La. Ann. 71; Gaines v. 
 Merchantts' Bank, 2 La. Ann. 479; Mcintosh 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 Y''ork, 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. 389; Kings- 
 ton Bank v. Eltinge, 40 N. 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. jMcPherlan, 3 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 v. Burton, 3 
 Humph. (Tenn.) 110. Judice v. Kerr, 8 La. Ann. 462. "England v. Clark, 4 
 Scam. (111.) 486, the court 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 oflBcer the fruits of its process, he violated no legal or equitable 
 obUgation, 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.' 
 
 § 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.^ 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 f especially if the execution plaintiff himself 
 be the purchaser.* In some of the States the right of the purchaser 
 to relief when there is no title is fixed by statute.^ If the execiTtion 
 be levied by mistake on the lands of a stranger, the levy and sale 
 will be set aside.* So, also, where an execution has been levied on 
 
 ' Schwinger v. Hickock, 53 N. Y. 280 
 
 2 Ante, p. 118. 
 
 3 Eocksell 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 (lo.), 313. 
 
 "Freeman Void Jud. Sales, § 49. Warner v. Helm, 1 Gil. (111.) 330, 334. Wat- 
 son V. Eeissig, 24 111. 381; 76 Am. Dec. 746. Lansing v. Quackenbush, 5 Cow. 
 (N. Y.) 88. Ontario Bank v. Lansing, 3 Wend. (N. Y.) 360, semlle. Ritter v. 
 Henshaw, 7 Iowa, 97. In Alabama if the execution plaintifE purchase the prop- 
 erty the execution is satisfied pro tonto, whether the defendant had or had not 
 title to the property. Thomas v. Glazener, 90 Ala. 587; 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. 588. 
 
 ' 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, 
 § 8831. 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.), 314. In this case, however, the sale was 
 set aside at the instance of the execution plaintiff, the purchaser consenting. 
 
124 MARKETABLE TITLE TO EEAL ESTATE. 
 
 personal property to which tlie 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.* 
 
 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-plaintifE.' 
 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.' 
 
 ' Maguire v. Marks, 28 Mo. 193; 75 Am. Dec. 121. Richardson v. MoDougall, 
 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 
 great importance justifies complete reproduction here. The report consists only 
 of an opinion by Robertson, Ch. J,, which was as follows: "The only ques- 
 tion we shall consider in this case is, whether the plaintiS 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 remedj' 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. 
 
 * See Citizens' Bank v. Freitag, 37 La. Ann. 71. 
 
CAVEAT EMPTOE. 125- 
 
 § 59. Fraudulent representations as to title. If a purcliaser at 
 an exemition 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.^ Other cases hold that the sheriii 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 ; ' also, 
 
 'Rooksell V. Allen, 3 McLean (U. S.), 357. Chambers v. Cochran, 18 Iowa, 
 159. Wlngo V. Brown, 14 Rich. L. (So. Car.) 103. Moore v. Allen, 4 Bibb (Ky.), 
 41. Webster v. Haworth, 8 Cal. 31, 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 emptar 
 applies to judicial sales, and that the defendant (purchaser) cannot avail himself 
 of the misrepresentations of the plaintifiE (execution creditor), as he had access to 
 the records of the county, and might have informed himself upon the subject. 
 Grant that the maxim ca-oeat 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." 
 
 ■• Hensley v. Baker, 10 Mo. 157, 159, obiter. See Melleu v. Boarman, 13 Sm. & 
 M. (Miss.) 100. Stoney v. Shiiltz, 1 Hill Eq. (So. Car.) 464; 27 Am. Dec. 439. 
 Weidler v. Bank, 11 Serg. & Rawle (Pa.), 134. It is the duty of the sheriff to 
 announce defects of title of which he is informed, and if he conceals them he and 
 
126 MABKETABLE TITLE TO REAL ESTATE. 
 
 that if the parties in interest are guilty of fraud, the remedy is by 
 action of deceit.' 
 
 In Pennsylvania it has been intimated that if the purchaser be 
 induced by the sheriff to suppose that he will get a complete legal 
 title, and on that presumption he bids the full value of the clear legal 
 estate, he will be entitled to relief, notwithstanding the rule caveat 
 emptor? 
 
 § 60. 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.' 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 he liahle to the purchaser. Comm'th v. 
 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. InDwight's 
 Case, 15 Ahb. Pr. (N. T.) 259 (0. S.), a purchaser at an execution sale had been 
 induced to bid by the representations of the plaintiff's attorney that the title was 
 good, the fact being that the defendant had conveyed away the premises before 
 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- 
 tiges. Harrison v. Shanks, 13 Bush (Ky.), 620. 
 
 '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, JISS. 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.) 397, 403; Cumming's Appeal, 23 Pa. 
 St. 509, 512. 
 
 « Ante, p. 118. 
 
CAVEAT EMPTOE. 127 
 
 vendor and purchaser when the vendor derives title through a 
 sheriff's deed, immediately or remotely, and in contests between the 
 sheriff and the purcliaser at the execution sale. It is plain that a 
 title resting upon a void judgment cannot be forced iipon one who, 
 by the terms of his contract, express or implied, may demand a 
 marketable title.^ It remains then to consider whether a purchaser 
 from the sheriff, having regard to the maxim caveat envptor^ 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 iri-egularities 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^ unless the judgment plaintiff was himself the 
 purchaser.^ 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,* though there are matters occurring after judgment that 
 will render a sale under execution absolutely void, as will be seen 
 hereafter.^ 
 
 ' Post, ch. 30, § 397. 
 
 ' Ante, p. 88; Backhurst v. Mayo, Dyer, 363; Dmry's Case, 8 Coke, 281 
 (early ed. 143). Shultz v. Sanders, 38 N. J. Eq. 154, Williams v. Cummings, 
 4 J. J. Marsli. (Ky.) 637; Reardon v. Searcy, 3 Bibb (Ky.), 303; 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. 
 
 ^Freeman on Judgments, § 483; Freeman on Executions, § 847. 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. 1836, vol. 3, p. 183); Goodyere v. luce, 
 Oro. Jac. 346; Eyre v. Woodfine, Cro. Eliz, 378. 
 
 * Forest v. Camp, 16 Ala. 643; Love v. Powell, 5 Ala. 58; Driver v. Spenoe, 1 
 Ala. 540. Heath v. Black, 7 Blackf. (Ind.) 154; State v. Salyers, 19 Ind. 433. 
 Clark V. Lockwood, 21 Cal. 330. Phillips v. Coffee, 17 111. 154; 63 Am. Dec. 
 S57. Shaffer v. Bolander, 4 Greene (lo.), 301. 
 
 5 Post, p. 129, this ch. Webber v. Cox, 6 T. B. Mon. (Ky.) 110; 17 Am. Deo. 137. 
 Minor v. Natchez, 4 Smed. & M. (Miss.) 603; 43 Am. Dec. 488. Hendrickson v. 
 
128 MARKETABLE TITLE TO EEAL ESTATE. 
 
 A purcliaser at a sale under execution, issued on a void judgment, 
 acquires no title.' 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."^ These principles address them- 
 selves to our sense of equity and right, and many cases may be 
 found which sustain them.^ 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. Smitli v. Kelley, 3 Murph. (N. C:.) 
 507. Jackson v. Rosevelt, 13 .Johns. (N. Y.) 97. Riddle v. Bush, 37 Tex. 67.1 
 
 ' Roberts v. Stowers, 7 Bush (Ky.), 295. Collins v. Jliller, 64 Tex. 118. 
 
 2 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 heen 
 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. 382. 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. 
 
CAVKAT EMl'TOE. 1 21) 
 
 chooses to bid without examining the record lie 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 t(j inform himself 
 as to want of jurisdiction in the court to render the judgment nnder 
 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 t(j 
 his bargain in the one case and relieved in the other. It would seem 
 more consistent to relieve him in both cases, ur 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 ileed is exe- 
 cuted and delivered. This was done in a case in which the purchaser 
 at a sale under execution on a \'o\A judgment, bid to protect his 
 interests as a mortgagee of the premises. The sale ■\\'as >et aside and 
 the purchaser relieved from his bid.' 
 
 § 62. Title under a void execution sale. The judgment on 
 which an execution is issued may be unini[)eacliable, and the title of 
 the defendant may be indefeasible, yet, for s(jrae mattei- occun-ing 
 after the rendition of judgment, the title of a purchaser under the 
 execution may be worthless. The repoits abound with cases in 
 which the judgment debtor, or those claimbig under him, have 
 recovered the prennses from the execution purcluiser or his assigns, 
 upon the ground that the sale itself, without regard to the \'alidity 
 of the antecedent judgment, was void. This has occurred, to men- 
 tion some of the most notable instances, where a sale has been made 
 nnder an execution levied after return day;'^ under an execution 
 against " William V.," on a judgment agahist " \1. AV X . ; " ^ mnier 
 execution issued after the death of the execution defendant, the 
 judgment not having been I'evived ; ' where an appraisement had nut 
 been made or waived, and the land sobl for less than its appraisable 
 
 ' Connelly v. Philadelphia, 86 Pa. St. 110; Shakc-spcan^ \-. Dclaiicy, ^<ii Pn. St. 
 108. 
 
 ■^ Freeman on Executions, ^t^ 58, IOC. and casus ciU-d. Hawes v, Kucker, (Ala.) 
 11 So. Rep. 85; .^lorgan v. Ra.in.sey, 15 Ala. 190; Smith v. .Munday, 18 Ala. 182; 
 53 Am. Dec. 221. Jefferson v. Curry, 71 Jto. S5. Cain v. Woodward, (Tex.) 12 
 S. W. Rep. 319; Terry v. Cutler, 4 Te.\-. Civ. App. 570; 23 S. W. Rep. 539. 
 Oontm, 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 
 
130 MARKETABLE TITLE TO EEAL ESTATE. 
 
 value ; ' where the sheriif 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 ; ^ 
 where the sale was made under an execution issued on a judgment 
 that had been paid, though not satisfied of record,* and under an 
 execution issued on a justice's judgment which was not docketed 
 until it had become barred by limitation.'' JS^umerous 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 ofiicer 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 ofiicer in his official capacity, but that 
 applies exclusively to the quality and property of the thing sold. 
 
 ' Capital Bank v. Huntoon, 35 Kans. 577; 1 Pac. Rep. 369, and cases there 
 cited. See Freeman Void .]ud. Sales, § 27. Contra, Shaffer v. Bolander, 4 
 Greene (lo.), 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; 8 N. Y'. Supp. 383; Bank v. Risley, 19 N. Y'. 369. 
 
 "Lowdermilk v. Corpenning, 101 N. Car. 649; 8 S. 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 S. W. Rep. 539. 
 
 ' Shaffer v. McC'racken, (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 been satisfied, though not canceled of record, a boTiafide 
 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. Y'onkers Sav. Bank, 70 N. Y. 553; 26 Am. 
 Rep. 637. See mntra, Nichols v. Dissler, 31 N. J. L. 461; 86 Am. Dec. 219. 
 
 ■' Cowen V. Withrow, (N. Car.) 19 8. E. Rep. 645. 
 
CAVEAT EMPTOR. 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 apj^lies 
 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 officii." ^ It is to be here observed 
 that if an execution defendant, or one wlio succeeds to his rights, 
 having grounds upon which tlie 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.' So, also, if the defendant accept the surplus of 
 the proceeds of tlie 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.'' 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 soufid, 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. 
 
 ' Stoney v. Sliultz, 1 Hill Eq. (S. C.) 464; 37 Am. Dec. 439. 
 
 ' Regney v. Small, 60 111. 416. Capital Bank v. Huntoon, 35 Kans. 577; 11 
 Pac. Rep. 773. 
 
 » Freeman Void Jud. Sales, § 50. Huffman y. Gaines, 47 Ark. 336; 1 B. W. 
 Rep. 100. 
 
 « Freeman Void Jud. Sales, § 41. 
 
132 MARKETABLE TITLE TO REAL ESTATE. 
 
 § 63. TAX SALES. The maxiau caoeat emptor applies with great 
 Btrictcess to tax sales.' Tax titles are esteemed the most uncertain 
 of all, and are uni\-ersally 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 \oid fur errors and omissions in 
 the proceedings the purchaser is allowed to have recourse upon the 
 city or count}' by whose authority the sale and conveyance was 
 made.'' 
 
 The rule caceat emptor has been held to extend not only t(j pur- 
 chasers at tax sales, but to transferees of the title so accpiired. 
 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.^ 
 
 § 64. SALES BY TRUSTEES, ASSIGNEES, ETC. The rule ,'ae,:at 
 emptor has been held to apply to sales imder 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 tlie 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.^ Such a sale 
 
 ' Blackwell on Tax Titles, § 994; Black, on Tax Titles (2d eil.), S -163. The 
 cases and authorities will be found collected in these works. The limits of this 
 treatise will not admit of their consideration here at length. 
 
 » Black, on Tax Titles (2d ed.), §§ 464, 477, et seq. ; Logansport v. Case, 124 Ind. 
 L'.54; 24 N. E. Rep. 88; Watkins v. Winings, 102 Ind. 330; 1 N. E, Rep. 638; 
 Parker v, Goddard, 81 Ind. 294. Russell v. Hudson, 38 Kans, 99. Jlcrriam v. 
 Ifauen, 23 Nch. 317. Hart v. Smith, 44 Wis. 213. 
 
 ' Boyd V. Schlisenger, 59 N. Y, 301, distinguished in Bensel v. Gray, 80 N. Y. 
 517. 
 
 * Rawle Govts, (oth ed.) § 338 n. ; 26 Am, & Eng. Eocyc. of L. 934, 940; Sutton 
 v. Sutton, 5 Grat. (Va.) 334; .56 Am, Dec, 109; Peterman v. Laws, 6 Leigh (Ya.), 
 
CAVKAT lOMPTOE. ] 33 
 
 stands upon the same footing as would a sale Ijy the trust grantor 
 liiinself, with express disclaimer of good title. But where the 
 trustee, selling at pubhc 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.' 
 It seems, however, that if the conveyance to the trustee contains 
 <'ovenants 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.^ 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 trList.'' If by mistake the pur- 
 chaser gets materially less land tlian 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 apjjly to the court for a rescission of 
 
 589. Fleming v. Holt, 12 W. V;i. 143. In this case, tiie court, after observing 
 that the purchaser at a judicial sale, that is, a sale by a commissioner of the 
 court, might ob,iect to the title at any time before confirmation of the sale, con- 
 tinued; " A s-sle by a trustee, like a sale by a commissioner, is without warranty, 
 but there is this ob\i(ius 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 bj' 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 mone_y. 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 be 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 
 lie bids, and if he bids without examining the title, he takes the risk of the 
 failure of title. 
 
 ' Schaefler 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. 393. 
 
134 MARKETABLE TITLE TO REAL ESTATE. 
 
 the contract, and to have the sale set aside, thereby relieving him 
 from the payment of deferred installments of the purchase mouey.^ 
 
 The rule caveat emptor applies also to sales under assignments to 
 secure the payment of debts, and to sales by assignees in bank- 
 ruptcy.^ 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 specilic 
 performance if the title be bad.^ 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.* 
 
 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.^ After 
 the sale is confirmed it is apprehended upon general principles that 
 the rule caveat emptor applies, at least so far as to jjrevent restitution 
 of the purchase money upon the ground of a paramount title out- 
 standing in a sti-anger. 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." 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.'' 
 
 § 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 
 
 ' Coons v. North, 27 Mo. 73. 
 
 " Ante, this section. As to sales by assignees in baukruptcj', post, this section 
 and cases cited. 
 
 8 McDonald v. Hanson, 12 Ves. 277; White v. Folzanibe, 11 Ves. 344; Deverell 
 V. 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. 73; 
 84 Am. Dec. 607. 
 
 » Shlpp V. Wheless, 33 Miss. 647. Wiley v. White, 3 Stew. & P. (A.la.) 355. 
 
 ' Pferrman v. Wattles, 86 Mich. 254; 49 N. W. Eep. 40. 
 
CAVEAT KMPTOE. 1 ',]') 
 
 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 ; lie 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.! This right is given by law, and is in nowise rested upon 
 any impKed contract between the parties.^ 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 ex-jDended 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, 
 
 ' Post, g 204. 
 
 ' Sheld. Sub. § 1. 
 
136 MARKETABT.K TITLE TO REAI, ESTATE. 
 
 ])ecause the sale ^vai^ irregular, and vet alluw Liiii to profit by that 
 irregular sale to discharge his debts." '■ 
 
 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 raix'i/t emptor denies the purchaser relief;^ 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 
 ]3urcliaser can claim to be subrogated,^ and some upon the ground 
 that the purchaser is a mere volunteer and entitled to no considera- 
 tion.* 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 careat^ emptor is subordinated to the higher 
 
 ' ])ufour V. Camfranc, 1] ilart. (La.) 615; 13 Am. Dec. 3G(). 
 
 'Frost V. xVtwood, T:) Mich. 67, the court saying: "Every one is bound to 
 satisfy himself of the autliority under whicli 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 rec'eive jniy for them, there 
 .an 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. I\Iarston, 15 Ind. 134. Disaiiproveil in .Muir v. Berkshire, 53 
 Ind. 149. 
 
 * Richmond V. ^larston, 15 Ind. 134. Disapprovcil in ,Muir v. Berkshire, 53 
 Ind. 149. 
 
 ' Valle V. Fleming, 29 Mo. 163; 77 Am. Dec. 557, the coiu't saying that the law 
 iiiisps " 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 pvirchase of property made under process of the law, and, 
 therefore, has the equitable riglit 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 riirrnl oiiptor 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 K^ri'TOR. 11)7 
 
 equities of the purchaser. Tlie objection that the Hen or debt is dis- 
 charged, aud that there is iiotliing to wliieli tlie purchasei- can bo 
 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.' The purchaser obviously 
 does not stand upon the same ground as one M'ho officiously 
 ])ays the debt of another. Accordingly the weight of authority 
 in America has established the rule that an innocent ])ui'chaser at a 
 sheriff's^ or administrator's'^ sale, or other ministerial or judicial 
 
 'Brobst v. Brock, 10 Wall. (U. S.) 519. Robinson v. Ryan, 25 N. Y. 330; 
 Jackson v. Bowcn, 7 Cow. (N. Y.) I'd; Stackpole v. Bobbins, 47 Barb. (Is. V.) 
 213. Seller v. Lingcrman, 31 Ind. 364; Muir v. Berkshire, 53 Ind. 149; Carver 
 V. Howard, 03 Ind. 173. Gilbert v. Coolcy, Walker's Ch. (Mich.) 494. Johnson 
 \. Robertson, 34 ,Md. 105, a case in which a foreclosure sale was declared void 
 lor Avant of jurisdiction of tlie persons of the defendants. The court, by 
 AbVKV, J., said: " The purchaser should lie protected so far that if lie has paid 
 the purchase money, and it has been applied to the payment of the mortgage 
 debt, or so far .'is he has jiaid and applied the purchase money, he should be sub- 
 rogated to the niort,i;iigec, and the mortgaire, to the extent of such payment, 
 treated as assignefl to him. 
 
 ' Sheldon on Subrogation. ^ 38; 34 Am. & Eng. Encyc. of L. 261; 34 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. 353. Howard v. North, 
 5 Tex. 290; 51 Am. Ilec. 709; Andrews v. Richardson, 21 Tex. 387; Morten v. 
 We.lborn, 31 Tex. 773, Stone \. Darnell, 35 Tex. Supp. 430; 78 Am. Dec. 583; 
 Johnson -s , Caldwell, 38 Tex. 217; McDonough v. Cross, 40 Tex. 385; Burns v. 
 ].edbetter, .56 Tex. 3S3; Jones v. Smith, 55 Tex. 383. O'Kelly v. Gholston, (Ga.) 
 15 S. E. Rep. 133. Rev. St. Ind, 1881, § 1084; Reilly \. Burton, 71 Ind. 118; 
 Ray V. Detchon, 79 Ind. 56; Short v. Sears, 93 Ind. 505: Gillette v. Hill, 103 Ind. 
 531; 1 N. E. Rep. 551; Paxton v. Sterne, 127 Ind. 289; 36 N. E. Rep. 557. 
 Bentley v. Long. 1 Strobh. Eq. (So. Car.) 43; 47 Am. Dec. 523. Sands v. Lyn- 
 ham, 27 Grat. (Va. ) 391; 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. 433; 56 Am. Dec. 755; Campbell v. Lowe, 9 Md. 500; 66 Am. 
 Dec. 339. 
 
 ^Sheld. on Subrogation, S 2*19; 'Woerner's Am. Law of Adm. §485. Davis 
 \. Gaines, 104 U. S. 386. Blodgett v. Hitt, 29 Wis. 169; Winslow v. Crowell, 33 
 Wis. 639. Halsey v. Jones, 86 Tex. 488; 35 S. W. Rep. 696. Neel v, Carson, 
 47 Ark. 421; 3 S. W. Rep. 107. Rev. St. Ind. 1881, § 1084; Walton v. Cox, 67 
 Ind. 164; Duncan v. Gainey, 108 Ind. 579; 9 N. B. Rep. 470; Stutts v. Brcwne, 
 18 
 
138 MAEKETABLE TITLE TO REAL ESTATE. 
 
 sale/ 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.'^ In some of 
 the States this right is secured to the purchaser by statute.' 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.^ If the admistrator misappropriate the purchase 
 
 113 Ind. 370; 14 N. E. Eep. 230. Hudgin v. Hudgin, 6 Grat. (Yc..) 820; 52 Am. 
 Dec. 124; Sands v. Lynham, 27 Grat. (Va.) 291; 21 Am. Rep. 348. Springs v. 
 Harven, 8 Jones Eq. (N. Car.) 96; Perry v. Adams, 98 N. Car. 167; 3 S. E. Rep. 
 729. Robertson v, Bradford, 73 Ala. 116; Wilson v. Holt, 83 Ala. 528; 8 So. 
 Rep. 321; Ellis v. Ellis, 84 Ala. 348; 4 So. Rep. 868. Valle v. Fleming, 29 Mo. 
 153; 77 Am. Dec. 557; Haff v. Price, 50 Mo. 238; Sliroyer 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, 36 Miss. 521; Jayne v. Boisgerard, 39 Miss. 796; Short v. Porter, 
 44 Miss. 533; Gaines v. Kennedy, 53 Miss. 103; Hill v. Billingsly, 58 Miss. Ill; 
 Cole V. Johnson, 53 Miss. 94; JIcGee 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. 133, where the principle of the te.xt was applied to an invalid sale of a 
 lunatic's lands for the payment of his debts. Levy v. Riley, 4 Greg. 393, semble. 
 Contra, Nowler v. Coit, 1 Ohio, 519; 13 Am. Dee. 640. 
 
 'Jones on Mortgages, § 874 et seq.; 26 Am. & Eng. Encyc. of Law, 935; 34 id. 
 361; Sheldon on Subrogation, §§ 81, 83. The majority of the illustrations below 
 were cases of invalid foreclosure sales. Robinson v. Ryan, 25 N. Y. 330; Wins- 
 low v. Clark, 47 N. Y. 361; Miner v. Beekman, 50 N. Y. 337. Johnson v. Sand- 
 hoff, 30 Minn. 197. Honaker v. Shough, 55 Mo. 472. Frische v. Kramer, 16 
 Ohio, 125; 4? Am. Dec. 368. Curtis v. Gooding, 99 Ind. 45. Hays v. Dalton, 5 
 Lea (Tenn.), 555. Haymoud v. Camden, 22 W. Va, 180; Hull v. Hull, 35 W. Va, 
 155; 18 S. E. Rep. 49, Ck-»itni, Branham v. San Jose, 24 Cal. 585, 
 
 '^Geohegan v. Ditto, 2 Mete. (Ky.) 433; 74 Am. Dec. 413. If the purchaser is 
 fully 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 he 
 be guilty of fraud at the sale. 
 
 ■•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- 
 
CAVK.VT EJEPTOE. ] 39 
 
 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.^ 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 .^ Xor can the purchaser 
 claim any priority or precedence to which the creditor, whose hen 
 he claims, was not entitled.'' 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.* 
 
 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,^ 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,^ 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. 
 
 ' Pool v. Ellis, 64 Miss. 555. Bennett v. Coldwell, 8 Baxt. (Tenn.) 483. 
 
 2 Sheld. on Subrogation, § 209; Bennett v. Coldwell, 8 Baxt. (Tenn.) 483. 
 
 5 Duncan v. Gainey, 108 Ind. 579; 9 N. E. Rep. 470. 
 
 * Gaines v. Kennedy, 53 Miss. 103. Chambers v. Jones, 72 111. 275. Bland v. 
 Bowie, 53 Ala. 152; Goodman v. Winter, 64 Ala. 410; 38 Am. Rep, 13. Pavill 
 V. Roberts, 50 N. Y. 222. 
 
 ' Chancellor Walworth in Putnam v. Ritchie, 6 Paige Ch. (N. Y.) 405. 
 
 « Bright V. Boyd, 1 Story C. C. (U. S.) 478. Hatcher v. Briggs, 6 Oreg. 31. 
 
140 lEAEKETABI.K TITLE TO EEAL ESTATE. 
 
 § 6<K Subrogation of purchaser where sale is valid. It has 
 
 been lield that if a debtor have no title to lands sold under execu- 
 tion against him the purchaser may, in equity, recover from him the 
 aniirant paid for the property, though no fraud in relation to the 
 sale be imputed to tlie 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.' This doctrine seems a complete administra- 
 tion of justice between the jjarties, placing them substantially in the 
 same p(jsition in which they were before the debtor's liability was 
 incurred. But it cannot be reconciled witlt the rule cavent emptor,^ 
 and it has also lieen repudiated upon less cogent grounds, namely, 
 that the liability of the execution debtor is completely extinguished 
 by the ].)ayment of the purchase money, and that the purchaser, 
 ■with ]-esi)ect to such j)aj'ment, is to be regarded as a mere -^'olunteer.' 
 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 apjiarent satisfaction of the 
 judgment by the sale will be canceled and the plaintiff allowed to 
 take out a new execution.* This practice is equitable and just, and 
 prevails, it is believed, in most of the States. But it is clearly 
 
 ' Muir T. Craig. 3 Blackf. (Ind.) 393, following JIcGhee v. Ellis, 4 Litt. (Ky.) 
 244; 14 Am. Deo. 124, a case in whicli the sale was of a slave to whom the exe- 
 cution debtor had no title, the court saj'ing that the principle applied with the 
 same force to sales of real property as to sales of personalty. Dunn v. Frazier, 
 8 Blackf. (Ind.) 432; Preston v. Harrison, 9 Ind. 1; Pennington ^ . Clifton, 10 
 Ind. 172; Julian v. Beat, 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; Geoghegan v. 
 Ditto, 2 Mctc. (Ky.) 433; 74 Am. Dec. 413; McLaughlin v. Daniel, 8 Dana (Ky.), 
 182, case of personal property, 
 
 ' Vanscoj'oc V, Kimler, 77 HI. l.Tl; Bishop v, O'Connor, 69 111. 431; Basset t v. 
 Lockard, 60 111. 164. 
 
 ' Bishop V. O'Conner, 69 111. 431. 
 
 ■•Freeman on Executions, §§ 54, 301, 3.j2. Cross v. Zane, 47 Cal. 603. Ritter 
 V. Hensbiny, 7 Iowa, 98; Ladd v. Blunt, 4 Mass. 402; Tate v. Anderson, 9 Mass. 
 92; Gooch ^-. .Vtkins, 14 Mass. 378. Magwire v. Marks, 38 Mo. 193; 75 Am. Dec. 
 131. Swaggerty v. Smith, 1 Hcisk. (Tenn.) 403. Townsend v. Smith, 20 Tex. 
 4(i5; 70 Am. Dec. 400; Andrews v. Richardson, 21 Te.\. 287. Tudor -^ . Taylor, 
 26 Vt. 444. Price v. Boyd, 1 Dana (Ky.), 434. This right Is also in substance 
 secured to the purchaser by statute in some of the States, whether he was a 
 
CAVEAT EMPTOR. 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 
 subje-ct-matter that would place him upon hij^her 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.^ It would seem that the ends of justice are subserved 
 by disregarding the rule caveat emptor, whether the execution 
 plaintiif or a stranger becomes the purchaser, so far as to permit 
 either to have a ne\v 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.' 
 
 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 lie has been evicted by the holder of a para- 
 mount title, there would seem to be none where the jjurchaser payci 
 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.^ Axiy other rule would operate a great 
 
 stranger or a party to the execution. Code Civil Proc. Cal. § 708. Rev. Code 
 N. Car. eh. 45, § 27. Code Civil Proc. N. Y. § 1440. Rev. St. Iowa (1865), 
 § 3331. 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, 3 N. H. 79. Adams v. Smith, 5 Cow. (N. Y.) 280; Richardson v. 
 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. 
 
 ' Vattier v. Lytle, 6 Ohio, 477; Salmon v. Price, 18 Ohio, 383; 42 Am. Dec. 
 304; 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. 
 
 'Sheld. Subrogation, §44; Freeman Void Jud. Sales, § 54; 36 Am. & Eng. 
 Encyc. of L. 368, 269. McCasky v. Graff, 23 Pa. St. 331; 63 Am. Dec. 336; Gilbert 
 V. Hoffman, 3 Watts (Pa.), 66; 36 Am. Dec. 103. Elam v. Donald, 58 Tex. 316. 
 
 "Walden v. Gridley, 36 111. 523; Bassett v. Lockwood, 60 111. 164. Threlkeld 
 V. Campbell, 3 Grat. (Va.) 198; 44 Am. Dec. 384. Harth v. Gibbes, 3 Rich. L. 
 (8. Car.) 316. 
 
142 MARKETABLE TITLE TO EEAL 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 benetit 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.' 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 discliarge 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.^ 
 
 ' In Walden v. Gridley, 36 111. 523, it was said that it might be that a pur- 
 cliaser 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. 
 Y.)41. 
 
 'Osterbury v. Union Trust Co., 98 U. S. 434. Farmers' Bank v. Peter, l:i 
 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. 
 
 FBOM GK.ANTOBS 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 purcliaser 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 riglit 
 to relief against the vendor, in case he should sufEer 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 j)urchaser 
 is, in tlie absence of fraud or mistake, absolutely without relief at 
 law or in equity.' Consequently, the riglit of the purchaser to 
 require that the conveyance shall contain covenants adequate for his 
 protection, is of the most vital importance to him, and sliould, in 
 tliose 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 tlie 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 jjractice 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.^ Of these the most important are the covenants for seisin, 
 
 ' Post, ch. 27. 
 
 '4 Kent Com. 471; Rawle Covts. (5th ed.)§ 31; Murphy v. Lockwood, 21 111. 
 618. The followiug 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 limited 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 shaU and may at all times hereafter freely peaceably and quietly enjoy 
 
144 MAEKETABLE TITLE TO EEAL ESTATE. 
 
 against incumbrauces, and of warrant}'. 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 farther 
 assurance is not generally used throughout the country.^ The same 
 necessity does not exist for it as in England, where a vei'v 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 wth 
 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.'- From wliat has l)oeu 
 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 he 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 appvirtenances took the said 
 (purchaser) his heirs and assigns against him the said (vendor) and his heirs and 
 against all and everj' 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. (oth ed.) 
 p. 39. 
 
 ' Wilson V. Wood, 2 C. E. Gr. (X. J. Eq.) -310. 
 
 'The term " quit claim" is generally defined 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. ("ith ed.) § 30. But in those States in which 
 bj' statute or judicial construction general covenants of warranty are implied 
 from certain words of grant, such as tlie words " do hereby sell and convey " a 
 deed without express covenants for title is, of course, not n<'cessarily 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, 366; 17 N. W. Rep. 511; Sibley v. Bullis, 40 
 Iowa, 439. See, also, Taylor v, Harrison, 47 Tex. 454, 461; 36 Am. Rep. 304. 
 
COVENANTS WHICH THE PUECHASEE HAS A EIGHT TO DEMAND. 1 45 
 
 •whether the covenants given must be general and unUmited, 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.' 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 \-endor to 
 execute a " warranty deed " obliged him to insert in his deed no 
 other covenant than that of warranty.* 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.* So, 
 also, where the vendor agreed to convey with the " usual covenants."^ 
 If the contract be silent as to the numbei', 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 tlie States 
 it is not customary to insert any other covenant than that of gen- 
 
 ' 2 Sugd. Yand. cb. 14, § 3. 
 
 ^ Post, notes 4 and 5; Murphy v. Lockwood, 21 111. 618. 
 
 3 Kirkendall v. :\Iitcliell, 3 McL. (U. S.) 144. Wilsey v. Dennis, 44 Barb. 
 (N. Y.) 354. 
 
 ^ Clark V. Redman, 1 Bl. (Ind.) 379; Leonard v. Bates, 1 Bl. (Ind.) 172; Daw- 
 son V. Sbirley, 6 Bl. (Ind.) 531; Linn v. Barkey, 7 Ind. 69; Betbell v. Bethell, 93 
 Ind. 318, 321. Bowen v. Thrall, 28 Vt. 382. 
 
 5 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 seisiii and against incumbrances. McKleroy v. Tulane, 34 Ala. 83. 
 
 «Dwight V. Cutler, 3 Mich. 586; 54 Am. Dec. 105. AVilson v. 'Wood, 2 C. E. 
 6r. (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 
 
146 MAEKETABLE TITLE TO EEAL ESTATE. 
 
 eral warranty in a fee simple conveyance.' 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 sitm and not by the 
 lex loci contrachi? 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.' 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.^ 
 
 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.' 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 gi-antor 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 
 
 ' 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. 
 
 5 Gault v. Van Zile, 37 Mich. 22, per Coolbt, C. J. Here it was held that the 
 purchaser was entitled to such deed as is usual by custom of the rei sitm ; this 
 in analogy to the rule that the sufllciency of a deed is to be determined by the 
 lex rei Htce. 2 Pars. Gont. 5T1, note h ; Hosford v. Nichols, 1 Paige Ch. (N. Y.) 
 320. 
 
 '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. 
 
 «Lounsbery v. Locander, 10 C. E. 6r. (N. J.) 554; Thayer v. Torrey, 37 N. J. 
 L. 345; Newark Sav. Inst. v. Jones, 37 N. .J. Eq. 449. 
 
 'Stewart v. West, 14 Pa. St. 336, where Gibson, C. J., speaking of the cove- 
 nant of general warranty, said: " In Pennsylvania, it has been retained by 
 unprofessed scriveners as a nostrum supposed to contain the virtues of the whole 
 £ve, but its potency has not been recognized by the bench.'' 
 
COVENANTS WHICH THE PUECHA8EE HAS A EIGHT TO DEMAND. 147 
 
 the title.' 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.' 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.^ 
 
 § C8. FROM GRANTORS IN THEIR OWN RIGHT. Assuming 
 that, by contract, express or implied, the purchaser may require all 
 the several covenants for title,^ 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. 36. 
 
 'Findlay v. Toncray, 3 Rob. (Va.) 374, 379; "Wash. City Sav. Bank v. Thorn- 
 ton, 83 Va. 157; 2 S. E. Rep. 193. 
 
 *Post, ch. 31. 
 
 ' 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.) 333, 334; 3 Powell Conv. 306, 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. & S. (Q. B.) 773. The following 
 extract from the opinion of Lord Eldon, in Browning v. "Wright, 2 Bos. & Pul. 
 13, 32, 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 gi-anted 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 EEAL ESTATE. 
 
 for a valuable consideration, his covenants must extend to the acts 
 of the last purchaser.' 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,^ and that they 
 
 ancestor; and if by devise, it is not unusual for him to covenant against tlie 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 convey 
 an estate in fee, and yet not he 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 1 An abstract is 
 laid before the purchaser's counsel; and though to a ceTtain extent he relies on 
 the vendor's covenant, still his chief attention is directed to ascertaining what is 
 the estate, and how far it is supported by the title. The purchaser, therefore, 
 not being misled by the vendor, malies 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. 
 
 ' 2 Sugd. Vend. (8th Am. ed.) 332. 
 
 « Witter V. Biscoe, 13 Ark. 422; Bagley v. Fletcher, 44 Ark. 158; Rudd v. 
 Savelli, 44 Ark. 145. Steele v. Mitchell, Pr. Dec. (Ky.) 47; Fleming v. Harrison, 
 2 Bibb (Ky.), 171; 4 Am. Dec. 691; Vanada v. Hopkins, 1 J. J. M. (Ky.) 293; 19 
 Am. Dec. 92; Andrews v. Ward, 17 B. Mon. (Ky.) 518; Gaithor v. O'Doherty, 
 (Ky.) 13 S. W. Kep. 306. Clark v. Redman, 1 Bl. (Ind.) 379. Faircloth v. Isler, 
 75 N. C. 551; Gilchrist v. Biiie, 1 Dev. & Bat. Eq. (N. C.) 358; Henry v. Liles, 2 
 Ired. Eq. (N. 0.) 407. Vardeman v. Lawson, 17 Tex. 11; Phillips v. Herndon, 
 78 Tex. 378. Even though the vendor understood that he was only to make a 
 quit-claim deed, if such understanding was not known to the purchaser. Jones 
 V. Phillips, 59 Tex. 609. Holland v. Holmes, 14 Pla. 890. 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, 81 Grat. (Va.) 442; Hoback v. Kilgore, 36 
 Grat. (Ya.) 443; 21 Am. Rep. 317; Dickinson v. Hoomes, 8 Grat. (Va.) 353, 394; 
 Rucker v. Lowther, 6 Leigh (Va.), 259. Qf. Remington v. Hornby, 4 Munf. (Va.) 
 140. Tavenner v. Barrett, 31 W. Va. 656, 681. Clark v. Lyons, 25 111. 105. 
 Johnston v. Piper, 4 Minn. 195. Davis v. Henderson, 17 Wis. 110. Tremaine 
 T. Lining, Wright (Ohio), 644; but see Pugh v. Chasseldine, 11 Ohio, 109; 37 Am. 
 
COVENANTS "WHICH THE PTJECHASEE HAS A EIGHT TO DEMAND. 149 
 
 must be full, that is, consisting of all the nsnal 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.' 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.) 103, 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. 143. Johnston v. Piper, 4 Minn. 193 (133). 
 In Allen v. Yeater, 17 W". Va. 188, 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. 
 76; 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." 
 Fitch V. Willard, 73 111. 93. 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.) 30 Pac. Rep. 586. 
 
 ' 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 less 
 
150 MARKETABLE TITLE TO EEAL 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.-" 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 hira to warrant the title generally, it will be presumed that 
 it was the understanding and intention of the parties tliat there was 
 to be no such warranty.^ Of course, if there be an express contract 
 with reference to the kind of title tlie pui'chaser is to receive, the 
 covenants which he may require will depend upon the construction 
 of that contract.^ 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. ^ 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 huys 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." 
 Govts, 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. 239. These remarks 
 were approved in Dwight v. Cutler, 3 Mich. 566; 64 Am. Dec. 105. 
 
 ' See Rawle Govts. (5th ed.) § 289. Kyle v. Kavanaugh, 103 Mass. 356, 359; 4 
 Am. Rep. 560. Mead v. Johnson, 3 Gonn. 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, 
 9 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.) 13 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. 
 
 < Bryant V. Wilson, 71 Md. 440. 
 
COVENANTS WHICH THE PUECHASEE HAS A EIGHT TO DEMAND. 151 
 
 the purchaser accepts a quit-claim instead of a deed with full cove- 
 nants, to which under the contract lie is entitled, the seller may be 
 compelled to execute a deed with such covenants.^ And a pur- 
 chaser who has been fraudulently induced to accept a quit-claim deed 
 will be entitled to rehef.' A grantee who reeonveys 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.' To 
 such a covenant the original grantor will, of course, be entitled.'' 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.' 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.^ 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.'' It is the duty of 
 the vendor to remove the cloud or incumbrance, or to assume the 
 responsibility thereof by executing a deed with general warranty. 
 A person who joins in a conveyance of land merely that an objec- 
 tion to the title may be removed, cannot, of course, be required to 
 covenant generally.^ 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.' In the English practice 
 they are required to covenant also against the acts of the ancestor,'" 
 and there seems to be no good reason why they should not be 
 
 ' Point Street Iron Works v. Simmons, 11 R. I. 496. 
 
 'Rhode V. Alley, 27 Tex. 443. See, also, Chastain v. Staley, 23 Ga. 26. 
 
 » Concord Bank v. Gregg, 14 N. H. 331. 
 
 ' Shorthill v. Ferguson, 47 Iowa, 284. 
 
 '' 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. & Pu). 13. 
 
 ' Potter V. Tuttle 22 Conn. .513. 
 
 ' Hoback v. Kilgore, 26 Grat. (Va.) 442, 445; 21 Am. Rep. 317. 
 
 ' Hill V. Ressegieu. 17 Barb. (N. Y.) 162. Boggess v. Robinson, 5 W. Va. 408 
 Hyatt V. Seeley, 1 Kern. (N. Y.) 56. 
 
 " 3 Sugd. Vend. (8th Am. ed.) 233. Browning v. Wright, 3 Bos. & Pul. 33. 
 
152 MARKETABLE TITLE TO REAL ESTATE. 
 
 required so to covenant in America, at least to the extent of assets 
 which they may have received from the ancestor's estate/ 
 
 At common law it was useless to require covenants from a married 
 woman, since they could not be enforced. In England, however, 
 and in some of the American States, it has been held that she may 
 bind her separate estate in equity by her covenants. In other States 
 it is considered that the power so to bind lier 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 is 
 expressly denied her by statute, except by way of estoppel.^ 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, 
 i» without relief in case he loses the estate.'" 
 
 Persons executing mortgages,* and, presumably, deeds of trust to 
 secure debts, unless the instrument in either case be a security for 
 the purchase money of the estate,'^ must covenant against the acts of 
 all persons whomsoever. The same covenants may be required of a 
 lessor,* the reason being that the title is never examined upon a 
 demise for years. 
 
 ' Holman v. Criswell, 15 Tex. 39.5. This was denied in Hill v. Ressegieu, 17 
 Barb. (N. Y.) 162, 167. 
 
 ' See general!}' as to the power of a married woman to bind her estate by cove- 
 nants for title, Rawle Govts. (.5th ed.) § 306 et seq. 
 
 'Post, oh. 27. 
 
 *Sugd. Vend. (14th ed.) 551; Wms. Real Prop. (8th Am. ed.) 447. Cripps v. 
 Reade, 6 Term, 606 ob. In Locliwood v. Sturtevaut, 6 Conn. 372, 384, the singu- 
 lar objection was made tliat covenants of seisin and of good right to convey in a 
 mortgage are invalid. The objection of course was held untenable. See Lloyd 
 v. Quimby, 5 Ohio St. 262, and Butler v. Seward, 10 Allen (Mass.), 466, for 
 instances in which 'protection to the mortgagee was afforded by covenants for 
 title. 
 
 ' Williams Real Prop. (6th Am. ed.) 447, n. 4. 
 
 'Wms. Real Prop. (6th Am. ed.) 447, n. 1; Bart. Conveyancing, 75; Rawle 
 Govts. (5th ed.) § 26. 
 
COVENANTS WHICH THE PURCHASER HAS A RIGHT TO DEMAND. 153 
 
 Tenants in common and joint tenants should covenant severally," 
 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 pubhc 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.' It seems that a bankrupt 
 cannot be compelled to execute a conveyance with covenants, 
 though it is the practice for him to give covenants." 
 
 § 69. FROM FIDUCrARY GRANTORS. One who sells property in 
 which he has no beneficial interest, for example, a trustee,^ executor* 
 
 ' Coe V. Harahan, 8 Gray (Mass.), 198. 
 
 ' Rawle Govt. (5Ui ed.) p. 33, 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 Gr, Ch. (N. J.) 467. 
 
 ' See post, § 148. 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 th3 contract bound the vendor to con- 
 vey 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. 
 
 * Sugd. Vend. (14th ed.) 575. Waugh v. Land, Coop. 133. Ex parte Crowder, 
 2 Rose, 337. 
 
 ' Dart V. & P. (5th ed.) 180; 2-Sugd. Vend. (14th ed.) 574 (234); Lewin Trustees (1st 
 Am. ed.), § 441; Rawle Govts. (5th ed.) g 33. Paircloth v. Isler,75 N. 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. 883, 387. He may be required to 
 insert a covenant against his own acts. Dwinel 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. 86, 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 KEAL ESTATE. 
 
 or assignee,^ can be required to enter into no other covenant than 
 that he has done no act to incumber tlie estate. In the EngKsh 
 practice, however, the purchaser has been held entitled to require 
 the usual covenants from cestuis que trustf and the same rule has in 
 a few instances been enforced in America.^ The usual covenants 
 may be required from an agent in behalf of his principal,* unless 
 
 Hodges V. Saunders, 17 Pick. (Mass.) 476. Shontz v. Brown, 37 Pa. St. 123. 
 Grantland v. Wight, 5 Munf. (Va.) 395; 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 v. 
 Brown, 27 Pa. St. 123, 134. Nor those implied from the words "grant and 
 demise" in a lease. Webster v. Conley, 46 HI. 14; 92 Am. Dec. 284. And, gen- 
 erally, covenants for title will not be implied as against an executor. Dow v. 
 Lewis, 4 Gray (Mass.), 468, 473. SemUe, 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, 3 Wilson, 130. 
 
 ■White V. Foljambe, 11 Ves. 337, 345. See, ante, "Caveat Emptor," p. 134. 
 (Sale by Assignee in Bankruptcy.) 
 
 ^ Sugd. Vend. (14th ed.) 574, 575; Rawle Govts. (5th ed.) § 34. London Bridge 
 Acts, 13 Simons, 176; Poulet v. Hood, L. R., 5Eq. 115. But see Wakeman v. 
 Duchess of Rutland, 3 Ves. 233; Cottrell v. Cottrell, L. R., 3 Eq. 330. Mr.. 
 Rawle says that the correct test of the application of the rule requiring cestuis que 
 trust to give covenants would be the extent of the purchaser's liability to see to 
 the application of the purchase money. This means, it is presumed, that the pur- 
 chaser could not require covenants from the cestuis que trust unless he was obliged 
 to see that the purchase money was applied to the purposes of the trust, and thus 
 to become in a certain sense liable for the acts of the cestuis que trust and of the 
 trustee in making the sale. Rawle Cov. (5th ed.) p. 46, n. This is doubtless true 
 in all jurisdictions in which the purchaser upon a sale by him could be compelled 
 to give no more than hmited 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 Govts. (Sth ed.) § 34, citing Crabtree v. Levings, 53 HI. 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. 
 
 *Le Roy v. Beard, 8 How. (U. S.) 451; Taggart v. Stanbury, 2 McL. (U. S.) 
 543. Vanada v. Hopkins, 1 J. J. Marsh. (Ky.) 393; 19 Am. Dec. 92; Hedges v. 
 Kerr, 4 Brown (Ky.), 534, 528. Bronson v. Coffin, 118 Mass. 156; 11 Am. Rep. 
 
COVENAHTS WHICH THE PUECHASEE HAS A EIGHT TO DEMAND. 155 
 
 the power under which the agent sells and conveys expressly requires 
 a conveyance without covenants.' A vendor having an interest, as 
 well as a power, may be compelled to covenant personally to the 
 extent of his interest.^ 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,^ even though specified to be " in his capacity as 
 
 335. Hunter v. Jameson, 6 Ired. (N. C.) 253, case of personal property. Peters v. 
 Parnsworth, 15 Vt. 15!); 11 Am. Dec. 671. An agent authorized to convey lands 
 of the commonwealth by e(ult claim deed does not eyoeed 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 isrincipal could, authorizes the agent to con- 
 vey with covenants of general warranty. Taggart v. Staubury, 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. Hysorott, 5 Johns. (N. Y.) 58; Gibson v. Colt, 7 Johns, (N. Y.) 890; VauEpps 
 V. Schenectady, 13 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. 
 
 'Bart. Cony. 73. Hare v. Burges, 4 Eay & Johns. 57. 
 
 « Rucker v. Lowther, 6 Leigh (Va.), 359! 
 
 'Hill on Trustees (3d Am. ed.), 413; Rawle Covts. (5th ed.) § 36. Executors 
 and administrators: Mitchell v. Hazen, 4 Conn. 495; 10 Am. Dec. 169; Belden v. 
 Seymour, 8 Conn. 24; 31 Am Dec. 661. Aven v, Beckom, 11 Ga. 1. Sumner v. 
 "Williams, 8 Mass. 163; 5 Am. Dec. 83, the leading case. Mellen v. Boarman, 13 
 Sm. & M, (Miss.) 100. Godley v. Taylor, 3 Dev. (N. C.) 178. Lockwood v. Gil- 
 son, 12 Ohio, 529. KaufCelt 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. 83, 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. 0.) 37. So, 
 also a covenant by executors that they would warrant and defend " as executors 
 are bound by law to do," they not being bound by the lex rei sitce 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 MARKETABLE TITLE TO EBAL ESTATE. 
 
 administrator," ' the reasons being that, if he chooses to enhance the 
 value of tlie 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.^ 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.' 
 
 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 piirchase 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.* It has been held that- if it 
 
 the time of eviction. NicJiolas v. Jones, 3 A. K. Marsh. (Ky.) 385; Manifee v. 
 Jtorrison, 1 Dana (Ky.), 308. In Georgia fiduciaries are not personally bound by 
 their covenants unless the intention of personal liability be distinctly expressed. 
 Code Ga. 3563, 2633; Clark v. Whitehead, 47 Ga. 531; Shacklett v. Ransom, 54 
 Ga. 853. Trvstees: 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. 380. 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.) 331; 10 Am. Dec. 65. Duval v. Craig, 3 
 Wh. (U. S.) 56, diet. Sterling v, Peet, 14 Conn. 245. Guardians: Mason 
 V. Caldwell, 5 Gil. (Ill.)196; 48 Am. Dec. 330. Foster v. Young, 35 la. 27. Whit- 
 ing V. Dewey, 15 Pick. (Mass.) 488. 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, 103 Mo. 394; 17 S. W. Rep. 981. 
 
 'Higley v. Smith, 1 D. Chip. (Vt.) 409; 12 Am. Dec. 701. 
 
 'Donohoev. Emery, 9 Met. (Mass.) 66. See, also, Story on Agency, § 368; 
 Appleton V. Banks, 5 East. 148; Knipe v. Palmer, 3 Wilson, 130; BuiTill 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. 
 C;halfant, 7 Minn. 491. 
 
 ' Belden v. Seymour, 8 Conn. 34; 31 Am. Dec. 661. 
 
 •• 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 69 
 Tex. 597; 6 S. W. Rep. 778. 
 
COVENANTS ■WHICH THE PUECHASEE HAS A EIGHT TO DEMAND. 157 
 
 plainly appear from the face of tlie instrument that the fiduciary 
 did not intend to bind himself personally by the covenants, he will 
 not be bound ; iu such a case the plainly expressed intention of the 
 parties controls.* Covenants entered into by a fiduciary cannot 
 bind the trust estate or the cestuls que trust, except, of course, in 
 cases where he is expressly authorized to enter into covenants.^ A 
 power to a trustee to sell real estate upon such terms as he may 
 deem expedient gives him no authority to bind tlie estate by cove- 
 nants.^ And a statute giving an administrator power to convey 
 land, gives him, by implication, no power to bind the estate by 
 covenants for title.'' A fiduciary, conveying with geoeral 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.'' 
 
 § 70. MnriSTERIAIi 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.^ 'Soy can any covenant be implied from the 
 language of the conveyances which they execute.'' If, however, 
 they choose to insert covenants for title, they will be bound by 
 them. Thus it has been held that municipal ofiicers 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.* A tax collector who executes a tax deed with 
 
 ' Glenn v. Allison, 58 Md. 527. 
 
 'Osborne v. McMillan, 5 Jones L. (N. C.) 109. Klopp v. Moore, 6 Kans. 37, 
 30. KaufEelt v. Leber, 9 Watts & 8. (Pa.) 93. Lockwood v. Gllson, 13 OMo St. 
 539, diet. A. bond given by an administrator to convey land of his intestate by 
 warranty deed is unauthorized and will not bind the estate. Mason v. Ham, 36 
 Me. 573. The same rule applies in sales of personal property. "Worthy v. John- 
 son, 8 Ga. 236; 52 Am. Dec. 399. 
 
 3 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 Mass. 458. See post, 
 " Estoppel," ch. 21. 
 
 6Frledly 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 in 
 all sales by persons acting in a ministerial capacity. See post, " Caveat Emptor." 
 
 'Dow Y. Lewis, 4 Gray (Mass.), 468. 
 
 " Sterling v. Peet, 14 Conn. 245. 
 
158 MARKETABLE TITLE TO EEAL ESTATE. 
 
 covenants in the form presciibed by statute cannot be held person- 
 ally liable on those covenants.' Covenants for title cannot be 
 required from the crown, nor from the commonwealth, nor the 
 federal government.'^ 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.^ 
 
 ' Wilson V. Cochran, 14 N. H. 397. Gibson v. Mussey, 11 Vt. 312. 
 • Z Sugd. Vend. ch. 14, § 111; Rawle Govts. (5th ed.) § 37. State v. Crutchfield, 
 3 Head (Tenn.), 118. 
 ' Comm'th v. Andre, 3 Pick. (Mass.) 334; Comm'th v. Pejepscut, 10 Mass. 155. 
 
CHAPTER TIL 
 
 ABSTRACT OF TITLE. 
 IN GENERAL. § 71. 
 BOOT OF TITLE. § 72. 
 DUTY TO FURNISH ABSTRACT. § 73. 
 PROPERTY IN THE ABSTRACT. § 74. 
 TIME IN WHICH TO EXAMINE THE TITLE AND VERIFY THE 
 
 ABSTRACT. § 75. 
 SUMMARY OF THE VARIOUS SOURCES OF OBJECTIONS TO 
 TITLE. § 76. 
 Objections which appear from the instruments under which title is 
 
 claimed. § 77. 
 Objections which appear from the public records. § 78. 
 Objections which appear upon inquiries in pais. § 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, such as deeds, wills, and 
 affidavits respecting births, marriages, deaths, pedigrees, and other 
 matters materially affecting the title.' 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." * 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 wliich 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 attached.' 
 
 ' 2 Sugd Vend. (8th ed.) ch. 11. 
 
 'Union Safe Dep, Co. v. Chisholm, 33 111. App. 647, citing Warvelle Abst. 3. 
 
 « 3 Sugd. Vend. (8tb ed.) 15 (417). 
 
160 MAEKETABLE TITLE TO EEAL ESTATE. 
 
 In the American practice the abstract shows not only all convey- 
 ances affecting the title back to its root/ 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 line, the abstract 
 is the outcome of a caroiul 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 chaiu 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 foirnd in several valuable treatises upon the 
 subject.'' 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. Lbonaeds, 
 '■'■should never he left to a ?i inGompetent 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 
 
 ' 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 incumbrances. 
 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 v. 
 Schee, (Iowa) 45 N. W. Rep. 539. 
 
ABSTEACT OF TITLK. 1 (jl 
 
 inquire further, wlien lie would have discovered the fraud which 
 had been committed." ' 
 
 An original abstract of title showing unsatisfied liens of record 
 may be received in evidence in the action by the purchaser for 
 breach of contract in failing to make title.^ 
 
 § 72. ROOT or 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 forgerj^, or some event has transpired Ity whicli the estate 
 of the present occupant has determined ; e. ff., 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 tlie shape 
 of documents and public records or consist simply of facts to be 
 ascertained by inquiries in pais. This examination he must carry 
 back until he arrives at what is commonly' called the "root of title." 
 
 The root of title is title existing in some one, through whom the 
 vendor claims, at a time in the past sufficiently remote to 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 ad verse 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.^ This 
 
 '3 Sugd. Vend. (8th Am. ed.) 8 (411). 
 
 ^Fagan v. Davison, 3 Duer (N. Y.), 153. 
 
 3 Williams Real Prop. 450; 1 Sugd. Vend, (8th ed.) ch. 10; Warvelle Abst. 610; 
 Martindale Abst. § 18; Post " Doubtful Titles," § 393. Paine v. Miller, 6 Ves. 
 349. Cooper v. Emery, 1 Phil. 338. Blackburn v. Smith, 3 Exch. 788. Moulton 
 V. Edmonds, 1 De G., F. & J. 346. 
 21 
 
162 MAKKETABLE TITLE TO REAL 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.' 
 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.'' 
 
 In most of the American States west of the Alleghanies, where 
 all pnblic 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.^ 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 iiossession for 
 the statutory period of limitation is marketable.* 
 
 § 73. DUTY TO FURNISH ABSTKACT. 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,^ 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 Sugd. Vend. (8th Am. ed.) 551 (366). 
 
 « 1 Sugd. Vend, (8tli 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 live times that of the Statute of Limitations. 
 
 * Post, ch. 31 ; Martindale Abst. § 17. 
 
 » 3 Sugd. Vend. (8th ed.) 29 (438); Dart Vend. (5th ed.) 135. 
 
ABSTEACT OF TITLE. 163 
 
 country to insert in the contract or common conditions of sale a pro- 
 vision tiiat the vendor shall, within a speciiied time, prepare at his 
 own expense and deliver to the purchaser an abstract of the title.' 
 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 tiiue.^ In 
 America the rule obliging the vendor to furnish an abstract has been 
 announced in some cases,', 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.* It seems, 
 
 'Dart Vend. & Purch. (5th ed.) 125. 
 
 'Southby V. Hutt, 3 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 T. Pearce. 7 
 Wend. (N". T.) 131, and Carpenter v. Brown, 6 Barb. (N. Y.) 149. 
 
 ■•Easton v. Montgomery, 90 Cal. 313; 27 Pao. Rep. 380, citing Espy v. Ander- 
 son, 14 Pa. St. 313; Carr v. Roach, 3 Diier (N. Y.), 20. See, also, Boltou v. 
 Branch, 33 Ark. 435; Warvelle Abst. § 10. In Easton v. Montgomery, supra, it 
 was said by Harthson, 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 MARKETABLE TITLE TO REAL 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.' 
 
 If the vendor agree to furnish an abstract within a speeilied time, 
 but fail 80 to do, the purchaser cannot be required to extend the 
 time ; he may rescind tlie contract and recover his deposit.^ Where 
 the contract provides that an abstract shall be furnished within a 
 reasonable time, what is a reasonable time depends upon the circum- 
 stances of each case.^ An agreement to furnish an abstract is suffi- 
 ciently complied with by notifying the vendee where it can be 
 foimd, if it be accessible to the vendee, and if he raises no objection 
 at the time.'' If the vendor agrees to furnish aji abstract, and fur- 
 nishes one which shows a defective title, the purchaser may rescind 
 the contract and recover the money paid, though the vendor had a 
 good title as a matter of fact.' 
 
 In some localities, it seems that it is common to treat an abstract 
 of title as merchantable or unmerchantable, without regard to the 
 
 parties did not agree ttiat tlie condition of tlie title sliould 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, 83 Cal. 533; 23 
 Pac. Kep. 317, 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. 
 * * * jf^ upon such examination, it appeared to him that the title was defec- 
 tive, it then became his duty to report to the vendor the particalars 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; 13 S. W. Rep. 713. 
 
 ' Mart, on Abst. 9, citing Willard on Real Est. & Conv. 559. 
 
 5 Williams v. Daly, 83 111. App. 454; Howe v, Hutchison, 105 111. 501. 
 
 •Jackson v. Conlin, 50 111. App. 538. 
 
 *Papin V. Goodrich, 103 111. 86. 
 
 'Boas V. Farrington, 85 Cal. 535; 24 Pac. Rep. 787. 
 
ABSTRACT OF TITLE. ] 65 
 
 nature of the title it discloses.^ Tlie 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 compe- 
 tent 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 consummated.^ 
 As between mortgagor and mortgagee, it has been held that an 
 abstract furnished by the mortgagor to assist the mortgagee 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.' 
 
 § 75. TIME IN WHICH TO EXAMINE THE TITLE AND VERIFY 
 THE ABSTRACT. The contract of sale usually specifies a time in 
 which the purchaser may examine the title before completing the 
 purchase. If no time be specified, he will be entitled to a reason- 
 able time for that nurpose, but cannot keep the contract open indefi- 
 nitely so as to avail himself of a rise in the value of the property or 
 escape loss in case of depreciation.'' It has been held that if the 
 contract provide that the purchaser sliall be furnished an abstract of 
 title, and shall have a specified time in which to examine the title and 
 
 '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 mimber 
 of real estate dealers that abstracts furnished by such recorder were merchant- 
 •able, 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, 8 Taunt. 388; Langlow v. Cox, 1 Chit. 98. 8 Sugd. Vend. 
 438, 439; Warvelle Abst. 11. Chapman v. Lee, 55 Ala. 616. 
 
 'Holm V. Wust, 11 Abb. Pr. (N. S.) (N. Y.) 1113. In Williams v. Daly, 33 
 111. App. 454, it seems to have been held that an abstract made by taking a copy 
 in writing from a former abstract made by another office, taking a letter-press 
 copy from that copy and, from the letter-press copy, copying again, was not 
 such an abstract as the purchaser was entitled to require. As to the validity of 
 copies of abstracts generally, see the observations of Mr. Warvelle in his work 
 on Vendors, vol. 1, p. 395. 
 
 ^ Hoyt V. Tuxbury, 70 111. 831. 
 
\QQ MAEKETABLE TITLE TO KEAL ESTATE. 
 
 pay the purcliase money, the purchaser must determine in that time 
 whether he will take the title, and that he cannot tender the pur- 
 chase money after that time, even though no abstract of the title was 
 furnished.-' 
 
 The purchaser is entitled to a reasonable time within which to 
 determine by investigation the validity of apparent hens disclosed 
 by the record.^ 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 tlaem.' This rule 
 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.* Where 
 the conditions of sale provide that the purchaser shall have a speci- 
 fied time in which to examine the 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.^ 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 
 
 ' Kelsey v. Crowther, (Utah) 27 Pac. Rep. 695. 
 
 'Allen V. Atkinson, 21 Mich. 361, Cooley, J., saying that when the purchaser 
 showed an apparent incumbrance of I'ecord, the most that the vendor could insist 
 upon "is that he shall satisfy himself within a reasonable time whether the appar- 
 ent 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 apparently incumbered, and that the 
 vendor should have a right to demand the immediate performance of the contract 
 by the vendee, when apparently his own deed would be insufficient to give the 
 complete title he had agreed to convey. Nor do I think thirty days was an 
 unreasonable time to take for this purpose when the mortgagee resided at a 
 distance, and when it does not appear that the situation of the parties had in the 
 meantime been changed, or that anything had occurred to render the contract 
 less fair and equal than it was when entered into. 
 
 sPost, oh. 32. Easton v. Montgomery, 90 Cal. 307; 27 Pac. Rep. 380. 
 
 "McCrosky v. Ladd, (Cal.) 28 Pac. Rep. 216. 
 
 ' Mead v. Fox, 6 Cush. (Mass.) 199. 
 
ABSTRACT OF TITLE. 167 
 
 contract if his title is not such as the purchaser may demand.^ 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.' 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." 
 
 § Y6. 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.^ It is our purpose here merely to 
 point out the several sources whence it maj^ 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." 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 ; ^ 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 insufBcient certificate of acknowledgment. The 
 title is also absolutely bad not only where it is open to attack after 
 
 ' Packard v. Usher, 7 Gray (Mass.), 529. 
 
 » Anderson v. Strasburger, 93 Cal. 38; 27 Pac. Rep, 1095, and cases cited. 
 
 ' Polk V. Stevenson, 71 Iowa, 378. 
 
 * Post, eh. 31. 
 
 ' Ante, p. 2. 
 
 « 1 Siigd. Vend. (8th ed.) 387, 579. 
 
168 MAKKETABLE TITLE TO EEAL ESTATE. 
 
 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.^ But the state of every title is capable of being 
 ascertained or established with a I'easonable 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 tlie 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 beholds is defective on its face ; or that his 
 
 ' Lord Hakdwickb in Lyddall v. Weston, 3 Atk. 30. 
 
ABSTEAOT OF TITLE. ] 69 
 
 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 nnder 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 
 in pais, 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 residt 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.' 
 
 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 Kecords. (3) Defects and Objections to Title arising 
 from matters in pais or those whichappear upon Inquiry dehors the 
 Public Eecords, and apart from any Instrument under which Title is 
 claimed. This summary, while necessarily general in its cliaracter, 
 
 ' Cogel V. Raph, 24 Minn. 194. See post, this chapter, p. 179. 
 22 
 
170 MAEKETABI.E TITLE TO REAL ESTATE. 
 
 embraces, it is believed, references to all of tbe principal and most 
 important sources of objections to title. 
 
 (I) 
 § 17. 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 inte?' partes, namely : (1) Deeds, including 
 letters patent or public grants ; and (2) Wills. As to deeds, it is 
 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 largo upon the public records, and in 
 the examination of titles many content themselves with a perusal of 
 the record or office co'pj of the deed ; but this is never a safe course, 
 as tlicre 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. Tiie 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 resiilt, from neglect of this seemingly 
 unnecessary caution. 
 
 The principal defects which will appear upon the face of an origi- 
 nal deed are as follows : 
 Insujficient Signing. 
 
 See ante, p. 54; 3 Washb. Real Prop. 370. 
 Insufficient Sealing. 
 
 See ante, p. 54, and authorities there cited. 
 Insufficient Execution. 
 
 This may occur in the case of a conveyance by a corporation, as, where 
 the instrument runs in the name of the officers of the corporation, and not 
 in the name of the corporation itself; or when the formalities, if any, required 
 by the corporate charter, or special legislation, have not been observed. So, 
 also, where a deed executed in pursuance of a power, omits any of the for- 
 malities prescribed by the power. 
 Insufficient Words. of Cowueyance. 
 
 See ante, p. 49. 
 Insufficient Description of the Premises. 
 
 This, as we have seen, may be so vague and indefinite as to render the 
 instrument not only ineffectual as notice to subsequent purchasers, but void 
 
ABSTRACT OF TITLE. 171 
 
 as between the parties. Ante, p. 50. Wait v. Smith, 92 111. 385. 1 Greenl. Ev. 
 § 301. Mesick v. Sunderland, 6 Cal. 398. 
 
 Illegal Subjectrmatter 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 hy 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 Avho does not profess 
 to act under a testamentary power. Contee v. Lyons, 19 D. C. 207. Brush 
 V. Ware, 13 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 he 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 Punning 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. 
 
172 MARKETABLE TITLE TO KEAL ESTATE. 
 
 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 
 lights of third parties in the premises, he will he charged with notice of 
 those rights, provided they might have been discovered by the exercise of 
 reasonable dihgence. 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, p. 56, 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- 
 ancc-s; 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 mind in the purchase of a trust estate. 2 Sugd. Vend. 
 (8th Am. ed.) ch. 18; 2 Washb. Real Prop. (4th ed.) 528 (211). 
 
 Cancellations, OUiterations, 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. 
 
ABSTRACT OF TITLE. 173 
 
 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. 
 Wamt 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 oflBcer 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.' 
 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.'^ 
 
 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 Waite 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 V. Duncan, 11 Ohio, 192. Moore v. Hunter, 1 Gilm. (111.) 317. 
 
174 MARKETABLE TITLE TO REAL ESTATE. 
 
 executed, as if, e. g. it should lack the number of witnesses required 
 
 by law. 
 
 Inconvpetenoy 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. 
 
 Invalidity of the 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 Qucontlty of the Estate Intended to ie 
 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 paities 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 rules 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 cRain 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 fovmd in Wilson's Case, 8 Wis. 171. The orig- 
 
ABSTRACT OF TITLE. 175 
 
 inal will should always be inspected by the purchaser; there may be indica- 
 tions upon its face that 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 ml 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. 
 
 (H) 
 § 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 APPBAE 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 appreliended, 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. 
 Ahsence 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 hia title is mei-ely 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, p. 23. 
 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 
 
176 MARKETABLE TITLE TO EEAL ESTATE. 
 
 against secret liens and conveyances. The general rule is that a search for 
 prior conveyances by the vendor, or any one through vphom he claims, need 
 he extended back no further than the date at which the record shovrs title in 
 the vendor, or the person against whom the search is made. Rawle Govt, 
 for Title (5th ed.), i^ 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 Secivre 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. 
 61 (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 Uen has not been continued in favor of a sm-ety, 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." 
 
ABSTRACT OF TITLE. 177 
 
 Lis Pendens and Attachment. 
 
 The rule of the common law is that every person is presumed to have 
 
 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 
 
 I pronounced in respect to such property. But this rule has been modified by 
 
 I statutes in most of the States, which provide that no lis pendens or attachment 
 
 shall be as valid against a bona fide 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; 8 Washb. Eeal Prop. 252 (593). 
 
 Mechanics' Liens. 
 
 See the statutes of the respective States. 
 Yendor'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 judgments 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 xeal 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 L^iens. 
 
 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 LIEN 
 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 ofBces. 
 23 
 
178 MARKETABLE TITLE TO EEAL ESTATE. 
 
 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 preUminary 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; 3 Washb. Real. Prop. 321 (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 ii-regularity 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 filo 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 pais. 
 
 Lis 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 
 
ABSTEAOT OF TITLE. 179 
 
 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 registry offices. See ante, p. 177. 
 
 Senior Patents or Grants of Publio Lands. 
 
 These, of course, will appear from the records in the land offices of the 
 several 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 have notice of such proceed- 
 ings. See Warvelle Abst. 360. 
 
 (Ill) 
 § 79. DEFECTS AND OBJECTIONS TO TITLE ARISING FROM MAT^ 
 TER8 IN PAIS, OR THOSE WHICH APPEAR UPON INQUIRY DEHORS 
 THE PUBLIC RECORDS, AND APART FROM ANY 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 in pais 
 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 lias 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 .^ The rules respecting purchasers 
 without notice are framed for the protection of him who purchases 
 a legal estate and pays the entire purchase money without notice of 
 an outstanding equity. They do not protect a person who acquires 
 no semblance of title.^ In such a case the rule caveat emptor 
 applies.' Thus, as a simple illustration, if the vendor held under a 
 forged deed, the purchaser would not be protected, while if the 
 deed was genuine, but merely voidable, as having been procured 
 by fraudulent representations, or as having been executed in fraud 
 
 ' Wells V. Walker, 39 Ga. 450. 
 
 ' Vattier v. Hinds, 7 Pet. (U. S.) 307, 371; Sampeyrac v. United States, 7 Pet. 
 (U. S.) 233; Boone v. Chiles, 10 Pet. (U. S.) 177; Wilson v. Mason, 1 Cranch 
 (U. S.), 45. Cogel V. Raph, 34 Minn. 194. Snelgrove v. Snelgrove, 4 Des. (S. C.) 
 Eq. 374. 
 
 2 Hurst V. McNeil, 1 Wash. (C. C.) 70. Daniel v. HoUingshed, 16 Ga. 190. 
 
180 MABKETABLE TITLE TO KEAL ESTATE. 
 
 of creditors, and the purcJiaser 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.^ 
 Kueg, 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 cliild died very shortly after birth, leaving its 
 mother as its heir, who thus became entitled to the Eueg estate. 
 But the brother and sister of Rueg, conceiving themselves to be his 
 heirs, conveyed his lands to a third person. Meanwhile, Eueg'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 
 Kueg. The defendant pleaded that he was a honafide purchaser of 
 the lands, without notice of tlie plaintiifs' 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 instruments 
 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. Rep. 201. 
 
 2 2 Washb. Real Prop. 484 (177). 
 ' 3 Hicks V. Hicks, (Tex.) 26 S. "W. Rep. 227. 
 
 * Wood V. Mann, 1 Sumn. (C. C.) 500. 3 Washb. Real Prop. (4th od.) 260 (565), 
 339. 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 against a 
 purchaser for value without notice. Contra, Wliite v. Graves, 107 Mass. 325. 
 
ABSTRACT OF TITLE. 181 
 
 in fraud of creditors ; * the right to fix a lien upon the premises for 
 the purchase money ; ^ the right to compel a conveyance of the legal 
 title from the vendor. Tlie general rule is that a purchaser for 
 value and without notice, vpho has paid the purchase money in full, 
 is not affected by latent frauds or equities of any kind.^ 
 Incompetency of Parties to Deeds or Wills, with Respect to 
 Infancy, Coverture, Alie7iage, Ilental 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 pais. 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 , 
 Adverse Occupancy of the Premises. 
 
 The purchaser should never omit to inquire as to the occupancy of the 
 premises. The record title may be apparently perfect, and there may be 
 nothing to indicate a want of title in the vendor, but the fact that the 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-pejformance of Conditions Antecedent and Subsequent, 
 and the Happening or If on-happening of Contingencies upon 
 which cm 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 dehors 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, 3 Ban- (Pa,). 191; "Wallace v. Harmsted, 8 Wright 
 (Pa.), 494; 53 Am. Dec. 603; Van Amringe v. Morton, 4 Wharton (Pa.), 382; 
 34 Am. Dec. 517. 
 
 '3 Washb. Real Prop. (4th ed.) 383. 
 
 * Warvelle Vend. 699, 
 
 3 Cogel V. Raph, 34 Minn, 194. Flannagan v. Oberthier, 50 Tex. 379. 
 
182 MARKETABLE TITLE TO EEAL ESTATE. 
 
 Dower and Curtesy Rights. 
 
 The existence of these must be ascertained by inquiries dehors the record. 
 Latent Amiiguities in the Description of the Thing Granted or 
 Devised, or of the Persons who are . to Take as Grantees or 
 Devisees. 
 
 Where these occur they must, of course, be explained by evidence aliunde, 
 if, indeed, they may be explained at all. See 1 Greenl. Ev. § 297. 
 Insufficiency of the Evidence to Establish Title hy 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 Emptor," §49. An illustration will be found, ante, p. 178. 
 The Existence of Physical Incumhrances 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, g§ 264, 267, 823. 
 The Existence of an Unrecorded Deed within the Period During 
 which such a Deed is by Statute, in some States, Allowed to 
 Relate bach and Bind Subsequent Purchasers from the Time of 
 AckrMwledgment. 
 
 See the statutes of the several States. Martlndale's Abst. p. 25. 
 
CHAPTEE VIII. 
 
 WAIVER OF OBJECTIONS TO TITLE. 
 
 IIT 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.' In either case the principles upon which the 
 existence of tlie 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 
 
 ' 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, To. 1: Wilde v. Fort, 4 Taunt. 334; Hume v. Bent- 
 ley, 5 De G. & Sm. 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, Fry's valuable treatise on Specific Performance (3d Am. ed.), 
 § 1305. 
 
184 MARKETABLE TITLE TO EEAL ESTATE. 
 
 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.' 
 
 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 tlie right to a conveyance with covenants for title adequate 
 for his protection in a case in which the contract entitles him to such 
 covenants. An act wliich 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.- Neither is an agreeuient by the purchaser 
 
 ' Post, this chapter, §§ 83, 84. 
 
 n Dart Vend. 437; 1 Sugd. Vend. 343. Calcraft v. Roebuck, 1 Ves. Jr. 231. 
 Roach V. Rutherford, 4 Desaus. (8. C.) 126; 6 Am. Dec. 606. See, also. Palmer 
 V. Richardson, 8 Strobh. Eq. (S, C.) 16. A sale of " all his (the vendor's) interest 
 in the devi.se 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 the sellers were not absolved from their obligation to eonney 
 to the purchaser at the proper time a good title, free from incumbrance. In Goddin 
 V. Vaughn, 14 Grat. (Va.) 103, 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 diSerent 
 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 cases, 
 proceed with the bargain and look to the covenants which he is to receive for his 
 
WAIVER OF OBJECTIONS TO TITLE. 185 
 
 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.' 
 
 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 imjalied, (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.' 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 a,s waived.^ 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 as 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 defective 
 title. 
 
 ' Leach v. Johnson, 114 N. C. 87. 
 
 « 1 Sugd. Vend. (8th Am. ed.) 517 (343). 
 
 'More V. Smedburgh, 8 Paige (N, Y.), 600. 
 24 
 
186 MARKET ABLE TITLE TO REAL ESTATE. 
 
 held to have waived his right to rescind in case the vendor be 
 unable eventually to remove the objections to the title.' 
 
 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.' 
 
 A purchaser may waive or lose his right to rescission by an 
 express confirmation of the contract,^ or by dealing with the prop- 
 erty as his own after knowledge of the circumstances which entitle 
 him to rescission/ or by a presumed acquiescence in the title dis- 
 closed by the vendor, even though possession has not been taken.' 
 But the purchaser must have been fully apprised of the facts ^ and 
 
 ' Caer, J., in Jackson v. Ligon, 3 Leigh (Va.), 194 (179). 
 
 ^ 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, 8 P. Wms. 290; Morse v. Royal, 
 12 Ves. 855; Sandeman v. Maokensie, 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. 
 
 < Campbell v. Fleming, 1 Ad. & El. 40. 2 Sugd. Vend. (8th Am. ed.) 33 (433). 
 An agreement by the purchasers that judgment might go against them for the 
 purchase money in consideration of the dissolution of an injunction against them 
 for cutting down timber, has been held a waiver of objections to the title. 
 McDaniel v. Evans, (Ky.) 14 S. W. Rep. 541. So, also, the execution of a new 
 note for the purchase money to an assignee of the original note, in consideration 
 of further Indulgence. Wills v. Porter, 5 B. Mon. (Ky.) 416. Three months' 
 delay by the purchaser in giving notice of rescission after judgment in favor of 
 an adverse claimant has been held no waiver of the right to rescind. Wilcox v. 
 Lattin, 93 Cal. 588; 39 Pac. Rep. 226. 
 
 ' Fordyce v. Ford, 4 Bro. C. C. 494. A common provision in the English con- 
 ditions 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. Gas. 429, and is as follows: "All 
 objections and requisitions (if any) in respect to the title or the abstract, or any- 
 thing 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. 
 367. Cutts V. Thodey, 13 Sim. 206. 
 
 'Life Asson. v. Siddall, 7 Jur. (N. 8.) 785. See, also, cases cited 1 Sugd. Vend. 
 (8th Am. ed.) 384. It seems that if the vendor was guilty of fraud in respect to 
 
WAIVEE OF OBJECTIONS TO TITLE. 187 
 
 of his legal rights/ and the efEect of his acts,' and must have acted 
 of his own free wilP before he will be deemed to have waived liis 
 right to rescission. 
 
 The purchaser may, of course, waive objections to the title in 
 express terms, but in most instances the waiver is imphed from his 
 acts and conduct.* In the English practice a waiver of objections 
 to the title means a waiver of the right to examine the title, that is, 
 to require the vendor to produce a title and support it by proper 
 evidence. In each case the question is whether the purchaser 
 intended to waive this right ;^ 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." 
 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.' 
 
 The purchaser does not waive his right to rescission for defect of 
 title by reselling the premises, since it must be presumed ihat he 
 intends to obtain a good title himself in order to perform his con- 
 tract with his vendee.^ An approval of the title by the purchaser's 
 counsel will not bind the purchaser as a waiver of objections.' 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 aliimde, he will be entitled to rescind.'" ISTor 
 do acts of ownership, where possession has been authorized, amount 
 to a waiver." The acceptance of the abstract as satisfactory, of 
 
 the title, tlie purchaser will be presumed not to have been apprised of his rights. 
 Baugh V. Price, 1 Wil. 320. 
 
 ' Cockerell v. Cholmeley, 1 Rus. & My. 43.'!. 
 
 2 Dunbar v. Tredennick, 3 Bal. & Beat. 317; Waters v. Thorn, 23 Beav. 547. 
 
 n Sugd. Vend. 3.53, 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. 
 Cas. 637; Brereton v. Barry, 11 Ir. Ch. 109. 
 
 * 1 Sudg. Vend. 343. 
 
 ^ Dowson v. Solomon, 1 Drew. & Sm. 1. 
 *Ex parte Sidebotham, 1 Mon. & Ay. 655. 
 ' Infra, this chapter. 
 
 * KnatchbuU v. Grueber, 1 Mad. 170. McCracken v. San Francisco, 16 Cal. 591. 
 9 Deverell v. Bolton, 18 Ves. 505; Harwood v. Bland, 1 Fla. & Ke. 540. 
 
 " 1 Sugd. Vend. 847; 1 Yo. & Coll. 570. 
 
 " Duncan v. Cafe, 2 M. & W. 244. See post, " Waiver by Taking Possession." 
 §81. 
 
188 MARKETABLE TITLE TO EEAL ESTATE. 
 
 course, does not depri\re the purchaser of the right to require that 
 the abstract shall be supported by proper evidence when necessary.* 
 § 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 
 to 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 ; ^ 
 nor where the contract authorizes him to take possession before a 
 title is made ; '' nor where under the contract he is entitled to call 
 
 ' SoiitUby V. Hutt, 2 My. & Cra. 207. 
 
 ' 1 Sugd. Vend. (8th Am. ed.) 31, 517. See post, " Waiver by Purchasing with 
 Notice of Defect," § 85. Vancouver v. Bliss, 11 Ves. 464; Ex parte Sidebotham, 
 1 Mon. & Ayr. 655; 3 Mon. & Ayr. 146; Calcraft v. Roebuck, 1 Ves. Jr. 236. 
 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, 313; Roach v. Rutherford, 4 Desaus. 
 (S. C.) 126; 6 Am. Dec. 606; Palmer v. Richardson, 3 Strobh. Eq. (S. C.) 16. 
 Craddoek v. Shirley, 8 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 Okmond, J. : " It would be contrary to equity and good conscience to 
 permit one who proceeds so far iu a purchase as to obtain possession with knowl- 
 edge of a defect in the title to object afterwards the want of a title as a reason 
 for not complying with his contract. If he knows that a defect can only be 
 obviated by a judicial proceeding it is impossible to suppose that the time stipu- 
 lated 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 obtaining it." Citing Seton v. Slade, 7 Ves. 265; Colton 
 V. Wilson, 3 P. Wms. 190. 
 
 '1 Sugd. Vend. (8th Am, ed.) 12. Stevens v. Guppy, 3 Rus. 171; Kirtland v. 
 Pounsett, 3 Taunt. 145; Dowsen v. Soloman, 1 Drew. & Sm. 1; Hearne v. Tom- 
 lin, 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 was held that a 
 party who goes into possession without knowledge of the title, and who after- 
 wards, 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 
 
WAIVER OF OBJECTIONS TO TITLE. 189 
 
 for a good title and takes possession witli the concurrence of the 
 vendor ; '■ nor where tlie vendor had agreed to remove tlie objection 
 to the title.* 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.^ It is obvious that great injustice may be done the 
 purchaser by a too liberal intei-pretation 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.'' The mere act of taking posses- 
 sion 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 intention and one of 
 
 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 jsractice 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. Burnett 
 V. Wheeler, 7 M. & W. 364. In this case it was held that an express agreement 
 to make a good title hound the vendor at law to remove defects in the title known 
 to the parties at the date of the contract, and which were capable of being 
 removed. The right to rescind is not lost by a verbal waiver of such agreement. 
 Goss V. Nugent, 2 Nev. & Man. 35. 
 
 'Burnett v. Wheeler, 7 M. & W. 361, 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 genei'al warranty, he was allowed to rescind though he 
 bought with notice of incumbrances on the land. 
 
 3 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, 23 Tex. 259. 
 
 ■'In Corey v. Matheson, 7Lans. (N. Y.) 80, it was said by Mullin, 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 Hilliard on Vend. 4, 233; Viele v. R. Co., 30 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. 443; Burroughs v. Oakley, 3 Swanst. 159; Minor v. Edwards, 
 13 Mo. 137; 49 Am. Dec 131. See, also, to the same effect. Bank of Columbia v. 
 Hagner, 1 Pet. (U. S.) 455. Jones v. Taylor, 7 Tex. 340; 56 Am. Dec. 48. 
 
190 MAEKETABLE TITLE TO EBAL ESTATE. 
 
 fact from all the circnmstances, and not an arbitrary presumption 
 of law from the mere fact of taking j^ossession.' But if he exercises 
 acts of ownership after notice or information of defects in the title, 
 he will, as a general rule, be deemed to have waived his objections 
 to the title.^ It has been held that a purchaser taking possession 
 with knowledge that the vendor has made fraudulent representations 
 as to the title, though he may thereby waive his right to rescind the 
 contract, does not waive his right to recover damages for the fraud 
 by action of deceit.^ 
 
 When the purchaser becomes aware of facts respecting the title 
 which gives him a right to rescind the contract he must exercise that 
 riglit promptly'. It is an evidence of bad faith that he raises no 
 objection to the title on account of known defects or incumbrances, 
 until he is sued for the purchase money.' The question whether or 
 not the purchaser waived his right to rescind the contract 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 circum- 
 stances surrounding the transaction.'' 
 
 § 82. LACHES OP PtTRCHASEE,. The right to rescind may also 
 be lost by laj)se of time, even though the time elapsed be short of 
 the Statute of Limitations.' Especially does this rule apply when 
 the conditions of the parties have so changed that the vendor can- 
 not be put in statu quo? The purchaser must exercise his right to 
 
 ' Page V. Greeley, 75 111. 400. 
 
 2 Canton Co. v. Balto. & Ohio R. Co., (lid.) 39 Atl. Rep. 831. "Where the 
 purchaser sold certain fixtures on the premises to the vendor's husband, hut when 
 the fixtures were being taken down suggested that their removal be deferred 
 until the examination of the title should be completed and found satisfactory, 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. Kountze v. Hellmuth, 67 Hun (N. Y.), 
 343; 23 N. Y. Supp. 204. 
 
 2 Whitney v. Allaire, 1 Comst. (N. Y.) 305. 
 
 "Hart V. Handlin, 43 Mo. 171. 
 
 ' 1 Sugd. Vend. (8th Am. ed.) 517 (343). Dowson v. Solomon, 1 Drew. & Sm. 1. 
 Burroughs v. Oakley, 3 Swan, 159. 
 
 « 1 Sugd. Vend. 253. Medlicot v. O'Donel, 1 Bal. & Beat. 156; Morse v. Royal, 
 12 Ves. 874. Lanitz v. King, 93 Mo. 513; 6 S. W. Rep. 363, where the plaintiff 
 delayed twenty months in tendering performance and demanding a deed. 
 
 ' Hunt v. Silk, 5 East, 449. Caswell v. Black River Mfg. Co., 14 Johns. (N. Y.) 
 453. 
 
WAIVER OF OBJECTIONS TO TITLE. 191 
 
 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 
 of the property affected, changes in its character and value, and the 
 rights of persons interested.' 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.^ ISTor where the delay 
 
 ' 1 Sugd. Vend. (8tli 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 no 
 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.) 136; 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. (0. C. U. S.) 435, the purchaser having rejected an insuiflciently 
 executed deed, judgment was given in his favor for restitution of the purchase 
 money, though he had been in possession seven or eight years. No question of 
 waiver of the right to rescind appears to have been raised. In 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, 10 Jnr, 301. Tomp- 
 kins V. Hyatt, 28 N. Y. 347; Ballard v. Walker, 3 Johns. C'as. (N. Y.) 60; Watt 
 V. Rogers, 3 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. Mon. (Ky.) 273; Lacey v. 
 McMillan, 9 B. Mon. (Ky.) 523. 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 their title, be compelled to take it and pay the purchase 
 money. Edwards v. Van Bibber, 1 Leigh (Va.), 183. As the vendor cannot 
 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 unrea- 
 sonable time and then demand specific performance, the property having in the 
 meanwhile greatly increased in value. Taylor v. Williams, 45 Mo. 80, In Taylor 
 v. 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 groimd of defects of title 
 shown by the abstract did not deprive him of the right to recover back his deposit 
 and expenses. 
 
 ' 1 Sugd. Vend. 254. 
 
 « Vail V. Nelson, 4 Rand. (Va.) 478. 
 
192 HAEKETABLE TITLE TO EEAL ESTATE. 
 
 is caused by the vendor's promises to make the title good.^ But 
 nothing can be clearer than the equity which compels him to com- 
 plete the contract in a case in which, with knowledge of the objec- 
 tion to the title, he continues in the uninterrupted possession and 
 enjoyment of the premises, without having paid any part of the 
 purchase money. ^ 
 
 § 83. "WAIVEK, BY CONTINUING NEGOTIATIONS WITH THE 
 VENBOR. If the purchaser proceeds with his negotiations after he 
 has been informed of defects in the title and knows tliat a good title 
 cannot be made until those defects are cured, he will be held to his 
 bargain,^ notwithstanding the expiration of the time appointed for 
 the completion of the contract, and though it will require a con- 
 siderable further time in which to perfect the title.'' But this rule 
 does not apply if he continues in his subsequent negotiations to 
 insist upon the objections to the title. ^ As has been tersely said : 
 "A treaty cannot waive that about which the purchaser treats." ' 
 Payment of any part of the purchase money, after notice of a 
 
 ■ShifEer v. Dietz, 53 How. Pr. (N. Y.) 372. 
 
 'Kennedy v. Woolfolk, 3 Ilayw. (Teun.) 195. 
 
 3 Griggs V. Woodruff, 14 Ala. 9. Rader v. Xealc, 13 W. Va. 373. Grigg v. 
 Landis, 6 C. E. Gr. (N. J. Eq.) 494. Vail v. Nelson, 4 Rand. (Va.) 478. In Flint 
 V. Woodin, 9 Hare, 618, it was said by Sir J. Wigram. V. C. "A purchaser 
 who finds there is an objection, 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, 
 Mc]\Iurray v. Spicer, L. R., 5 Eq. 557. A purchaser at an auction sale not 
 informed of an outstanding interest in infant heirs may abandon liis 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, be 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 discov- 
 ered. Newell 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 Cush. (Mass.) 199. 
 
 n Sugd. Vend. 365. Seton v. Slade, 7 Ves. 265; Pincke v. Curtiss, 4 Bro. C. C. 
 339; "Webb v. Hughes, I,. 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.) 135. 
 Rader v. Neal, 13 W. Va. 873, where the vendor contracted to convey when he 
 should have procured title fi-om a designated person. 
 
 ' Knatchbull v. Grueber, 1 Madd. 170. 
 
 8 Id. 1 Sugd. Vend. (8th Am. ed.) 347. 
 
WAIVEE OF OBJECTIONS TO TITLE. 193 
 
 defect in the title, will, as a general rule, be treated as a waiver of 
 the right to rescind.' 
 
 § 84. WAIVER 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.^ If the purchaser continues to deal with the 
 property,^ or pays part of the purchase money,* or accepts a convey- 
 
 » Caswell V. Black River Mfg. Co., 14 Johns. (N. Y.) 453. Ayres v. Mitchell, 
 8 Sm. & M. (Miss.) 683. Webb v. Stephenson, (Wash.) 39 Pac. Rep. 952. 
 
 'Alexander v. Utley, 7 Ired. Eq. (N. C.) 243; McDowell v. McKesson, 6 Ired. 
 Bq. (N. C.) 278. Magennis v. Fallon, 3 Mol. 591. Plight v. Booth, 1 Bing. N. C. 
 370. Houston v. Henley, 3 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, 34 lud. 332. Negley v. Lindsay, 67 Pa. St. 
 226; 5 Am. Rep. 427. Cunningham v. Fithian, 3 Gilm. (111.) 650. Laurence v. 
 Dale, 3 Johns. Ch. (N. Y.) 33; Masson v. Bovet, 1 Den. (N. Y.) 69; 4^ 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, 3 Woodb. & M. 
 (U. S.) 246, a delay of one year after discovery of the fraud was held no waiver. 
 
 ^1 Sudg. 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 con- 
 sidered 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. 
 
 * Pollard V. Rogers. 4 Call (Va.), 239. Haldane v. Sweet, 55 Mich. 196. Lock- 
 ridge V. Foster, 4 Scam, (111.) 569. Glasscock v. Minor, 11 Mo. 655. Davis v. 
 Evans, 63 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 represented the title 
 to be good. Blanchard y. Stone, 15 Vt. 271. 
 
 25 
 
194 MARKETABLE TITLE TO SEAL ESTATE. 
 
 ance ' after knowledge of the fraud, he waives his right to rescind, 
 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.' 
 
 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.^ 
 
 § 85. WAIVER BY PURCHASING WITH NOTICE OF DEFECT OR 
 INCUMBRANCE. 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.* A fortiori, if he purchase 
 knowing the title to be defective or the property incumbered, will he 
 he be denied the right to rescind,^ unless the defect or incumbrance 
 
 ' Vernol v. Vernol, 68 N. Y. 45. In Patton v. England, 15 Ala. 71, it was held 
 that if the purchaser accepts a deed with warranty, he cannot set up fraud as a 
 defense to an action for the purchase money. The inference, however, from the 
 facts stated in the case is that the purchaser accepted the conveyance after knowl- 
 edge of the fraud. 
 
 ' Marshall v. Oilman, 47 Minn. 131; 49 N. W. Eep. 688. 
 
 «Swan v. Drury, 22 Pick. (Mass.) 485. 
 
 ''Ante, p. 188. 
 
 5 2 Sugd. Vend. 549 ; 1 id. 265; 2 Warvelle Vend. 843. See cases cited ante, 
 "Waiver by Taking Possession," p. 188. 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, 3Leigh (Va.), 161; Goddin v. Vaughn, 14Grat. 
 (Va.) 102. Mills v. Van Voorhis, 23 Barb. (N. Y.) 125; Keating v. Gunther, 10 
 N. Y. Supp. 784. 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. Gooding v. Decker, (Colo.) 32 Pac. Rep. 
 833. Craddock v. Shirley, 3 A. K. Marsh. (Ky.) 288. Canton Co. v. Balto. & 
 Ohio R. Co., (Md.) 29 Atl. Rep. 821. 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. JMcClung, 9 Grat. (Va.) 336. Where 
 an auctioneer told a prospective bidder that the purchase money would be 
 
WAIVEE OF OBJECTIONS TO TITLE. 195 
 
 was contemplated by both parties at the time of the purchase, and 
 tlie vendor's agreement that they should be cured or removed 
 ■ remain unperformed.' If the purchaser enter into the contract 
 with notice that he cannot get a title beyond a limited period, he 
 will be held to have waived any objection to completion of the con- 
 tract on that account.^ 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.' 
 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.^ 
 
 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 a 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. 731; Hall v. Nevill, 3 La. Ann. 336. 
 
 'Ante, "Waiver by Taking Possession," p. 188. 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 T0Ckbr, P., as if there had been a conveyance 
 with ©ovenants against the defects alleged, the lattei 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. 873, it was held that 
 a 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. 
 
 « 1 Sugd. Vend. 346. Godson v. Turner, 15 Beav. 46; 3 Mer. 64. 
 
 8 Newark Sav. Inst. v. Jones, 87 N. J. Eq. 449. 
 
 ■* 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 
 
196 MAEKETABLE TITLE TO EEAL ESTATE. 
 
 If tlie purchaser, with full knowledge of the imperfection of the 
 title, takes a bond to protect himself against possible loss, *. e., a 
 title bond, he of course waives all right to rescission. His remedy 
 in such case is by action on the bond.' 
 
 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 tlie 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 tlie 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." 
 
 ' Green v. Finucane, 5 How. (Miss.) 543. Baldridge v. Cook, 37 Tex. 566. 
 
 ' Ashburn v. Sewell, L. K., 3 Ch. Div. (1891) 105. The same case decides that 
 the mere delineation of a road on a map of the premises sold will not raise a pre- 
 sumption that the purchaser was to take sub j ect to an easement in the road 
 enjoyed by third persons, there being nothing to warn the purchaser that stran- 
 gers had a right to use the road. 
 
WAIVEE OF OBJECTIONS TO TITLE. 197 
 
 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.' It has been held that the purchaser waives this right 
 by purchasing with notice of the defect or incumbrance.^ There 
 would seem to be no reasonable objection to such a rule in cases 
 where the purchaser conld 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 tlie 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 ; ^ 
 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,"* 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. 
 
 ' Greenleaf v. Cook, 2 Wh. (U. S.) 13. Bradford v. Potts, 9 Pa. St. 37. Find- 
 ley V. Horner, 9 Neb. 537; 4 N. W. Rep. 86. Busby v. Treadwell, 34 Ark. 457; 
 Worthington v. Curd, 32 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 e j ect- 
 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. 34. 
 
 •* Stockton V. Cook, 3 Munf. (Va.) 68; 5 Am. Dec. 504. 
 
1 98 MAEKETABI>E TITLE TO EEAL ESTATE. 
 
 the defective title wlierever, with common or ordinary diligence, 
 he might have informed himself of the objection/ as where it con- 
 sists of an incumbrance of record^ or of a fact appearing from the 
 instruments under which the title is derived and which tlie pur- 
 chaser is presumed to have examined.^ 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.* 
 
 ' Steele v. Kinkle, 3 Ala. (N. S.) 352. 
 
 'Steele v. Kinkle, supra. Wiggins v. McGimpsey, 13 Sm. & M. (Miss.) 533. 
 
 '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, ch. 11, § 104. Nichol v. Nichol, 4 Baxt. (Tenn.) 145. 
 
CHAPTER IX. 
 
 TENDER OP 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 foi' 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.' The vendor must be given 
 
 ■Chittj Cont. (lOtb Am. ed.) 333; 1 Sugd, Vend. (8th Am. ed.) 341; 2 Dart 
 Vend. (4th ed.) 877. Poole v. Hill, 6 M. & W. 835; Baxter v. Lewis,For. Ex. 61; 
 Mattock V. Kinglake, 10 Ad. & EI. 50. Clemens v. Logglns, 1 Ala. 632. Smith 
 V. Henry, 2 Eng. (Ark.) 207; 44 Am. Dec. 540; Byevs v. Aikin, 5 Ark. 419; Dren- 
 nere v. Boyer, 5 Ark. 497. Dennis v. Strasburger, 89 Cal. 588; 36 Pac. Rep. 
 1070. Ishmael v. Parker, 13 111. 334; Headley v. Shaw, 39 111. 884; Warren v. 
 Richmond, 53 111. 53; Cronk v. Trumble, 66 III. 438. Sheets v. Andrews, -2 Bl. 
 (Ind.) 274; Browning V. Clymer, 1 Ind. 579; Axtel v. Chase, 77Ind. 74. Stockton 
 v. George, 5 How. (Miss.) L. 173; Johnston v. Beard, 7 8m. & M. (Miss.) 317; 
 Stadifer v. Davis, 13 Sm. & M. (Miss.) 48; Hudson v. Watson, 36 Miss. 357; Hill 
 v. Samuel, 31 Miss. 307. Hudson v. Swift, 30 Johns. (N. Y.) 23; ®uthrie v. 
 
200 MARKETABLE TITLE TO EEAL ESTATE. 
 
 an opportunity to perforin his contract before he can be put in 
 default, 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.^ 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 contain.^ 
 Parol evidence of the surrounding circumstances will be admitted 
 to show whether, at the time of the execution of a written contract 
 for the sale of lands, it was the intention of the parties that the 
 payment of the purchase money on the one part and the execution 
 of a conveyance on the other were to be mutual and concurrent acts.^ 
 
 Thompson, 1 Oreg. 353. Baum v. Dubois, 43 Pa. St. 360; Poulson v. Ellis, 60 
 Pa. St. 134; Irvin v. Bleakley, 67 Pa. St. 24. A pm-ohaser seeking to enjoin tlie 
 collection of the purchase money on the ground of defect of title and non execu- 
 tion of a conveyance, must aver a tender of the purchase money. Harris v. Bol- 
 ton, 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. 623. 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, (Minn.) 59 N. W. Rep. 1055. Kime v. 
 Kime, 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 have quali- 
 fied. Hyde v. Heller, 10 Wash. 586; 89 Pac. Rep. 349. 
 
 ' Irvin V. Bleakley, 57 Pa. St. 24, 38. 
 
 n Sugd. Vend. (8th Am. ed.) 363 (239); Dart's Vend. (Waterman's Notes) 449. 
 
 ^ Sewall V. Wilkins, 14 Me. 168. This was an action bj^ the purchaser on a 
 title bond executed by the vendor. Testimony was admitted, over the objection 
 of the plaintiff, to show that he (the plaintiff, purchaser) knew at the time of the 
 purchase that there was a technical objection to the title which could probably 
 not be removed precisely at the time fixed for completing the contract. "The 
 law," said Weston, C. J., " is well settled that whether the acts to be performed 
 by the parties respectively in a covenant or agreement are to be regarded as 
 mutual, dependent, concurrent or otherwise, is to be determined by their inten- 
 
TENDER OF PERFORMANCE AND DEMAND FOR DEED. 201 
 
 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 vendor 
 had no title and was imable to convey. The mere neglect of the 
 parties to perform the contract at the appointed time cannot, with- 
 out anything more, amount to a rescission.' 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.^ It has also been held that the expression " tender 
 of the purchase money," as used in this connection, does not mean 
 such a tender as amounts in law to a payment of the debt ; it means 
 a readiness, willingness and ability to pay, accompanied by notice 
 thereof to the other party.^ So, also, tender of performance by the 
 vendor does not mean in every ease the actual production and tender 
 of a deed ; if the purchaser himself does not tender performance, 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.* 
 
 § 87. EXCEPTIONS. The rule which 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 
 where the inability of the vendor to make a good title is so apparent 
 
 tion, apparent from the written evidence of what has been agreed, in connection 
 with the subject-matter to which it is to be applied." 
 
 ' Townsend v. Tufts, 95 Cal. 257; 30 Pac. Rep. 528. 
 
 ^ Smith V. Smith, 35 Wend. (N. Y.) 404. Here a tender to the son of the vendor 
 at her home, she being absent, was held sufficient. 
 
 2 Smith V. Lewis, 26 Conn. 110. Clark v. Weis, 87 111. 438; 29 Am. Rep. 60. 
 Booth V. Saffold, 46 Ga. 278. It seems that an averment of ability and willing- 
 ness 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 pur- 
 chaser must -produce and offer to pay the purchase money. 
 
 " Wells V. Day, 124 Mass. 138. Teal v. Langdale, 78 Ind. 339. 
 
 '1 Sugd. Vend. (8th Am. ed.) 867; 3 id. 212; Dart Vend. (Gould's Am. ed.) 
 504, 510. Seward v. WlUcock, 5 JEast, 198; Knight v. Crockford, 1 Esp, 189; 
 Wilmot V. Wilkinson, 6 B. & 0. 506. Johnson v. Collins, 17 Ala. 318; Garnett 
 V. Yoe, 17 Ala. 74; Bedell v. Smith, 37 Ala. 619. Lawrence v, Taylor, 5 Hill 
 (N. Y.), 107; Holmes v. Holmes, 13 Barb. (N. Y.) 137; Foster v. Herkimer Mfg. 
 Co., 12 Barb. (N. Y.) 352; Spaulding v. Fierle, 86 Hun (N. Y.), 17; Glenn v. 
 26 
 
202 MARKETABLE TITLE TO REAL ESTATE. 
 
 that a tender and demand would be superfluous ;^ as where the 
 premises have been recovered from the purchaser by one claiming 
 under a paramount title,^ or under an incumbrance created by the 
 vendor,' or where the vendor has conveyed away the premises to a 
 third person ;* or where the sale was by agent and the principal has 
 repudiated the contract.^ If the contract provide that the vendor 
 shall show a good title as a condition precedent to the payment of 
 the purchase money, the purchaser need not tender the purchase 
 money and demand a conveyance before maintaining his action, 
 unless the good title be shown. ^ An apparent contradiction is 
 involved in the two propositions that the purchaser need not tender 
 the purchase money and demand a deed when the vendor's abstract 
 shows a bad title, and that the vendor is entitled to a reasonable time 
 in which to remove incumbrances and objections to the title, unless 
 the first proposition is strictly limited to those cases in which 
 the defect or incumbrance is incapable of removal, so that a 
 tender would be utterly vain and nugatory.'' If the purchaser 
 
 Rossler, 88 Hun (N. Y.), 74; 34 N. Y. Supp. 608: Higgins v. Eagleton, 34 N. Y. 
 Supp. 225. 
 
 'Magee v. McMillan, 30 Ala. 421; Griggs v. Woodruff, 14 Ala. 9; Smith v. 
 Robertson, 23 Ala. 324. Holmes v. Holmes, 12 Barb. (N. Y.) 137. Blann v. 
 Smith, 4 Bl. (Ind.) 517; Bowen v. Jackson, 8 Bl. (Ind.) 203; Carpenter v. Lock- 
 hart, 1 Ind. 434. Edmonds v. Cochran, 13 Iowa, 488. Baynes v. Bernhard, 12 
 Ga. 150. 
 
 2 Kerst V. Ginder, 1 Pittsb. (Pa.) 314. 
 
 2 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. 
 
 *2 Sugd. Vend. (8th Am. ed.) 212(516). Post, §253. Sir Anthony Main's 
 Case, 5 Coke's Rep. 211. Wilhelm v. Fimple, 31 Iowa, 131; 7 Am. Rep. 117. 
 Nesbitt V. Miller, 125 Ind. 106; 25 N. E. Rep. 148. Smith v. Rogers, 42 Hun 
 (N. Y.), 110. Baum v. Dubois, 43 Pa. St. 260; Irviu v. Bleakley, 67 Pa. St. 24. 
 In Sons of Temp. v. Brown, 9 Minn. 157, it was held that a tender of the pur- 
 chase money might be made to the grantee of the vendor, he having notice of the 
 purchaser's rights. 
 
 ' 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 readiness to per- 
 form the contract. Bell v. Kennedy, 100 Pa. St. 215. 
 
 « 1 Sudg. Vend. (8th Am. ed.) 363 (239). 
 
 ' Read v. Walker, 18 Ala. 333, 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 pur- 
 
TENDER OF PEEFOEMANCE AND DEMAl^D FOR DEED. 203 
 
 seeks to rescind the contract, or to recover damages against the ven- 
 dor for non-performance, it seems to be tlie better opinion that the 
 mere existence of an incumbrance upon the property will not excuse 
 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 incumbrance.^ 
 But there are cases in which the contrary view has been taken.^ If , 
 however, in a case in which the estate is incumbered, the purchaser 
 seeks not a rescission, but specific performance o f the contract,' 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 per- 
 formance.* 'No duty devolves upon the purchaser to tender the 
 purchase money and demand a conveyance in a case in which the 
 acts and conduct of the vendor himself show an intent to rescind 
 the contract,' e. g., where the vendor has expressly notified the 
 
 chaser 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. 
 
 ' 2 Sugd. Vend. (8th Am. ed.) S5 (425), where it is said that an incumbrance is. 
 no objection to the title if the incumbrancer can be compelled to join in the 
 conveyance. 
 
 ^Morangev. Morris, 34 Barb. (N. Y.) 311; affd., 33 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. 
 
 »Kerr v. Purdy, 50 Barb. (N". Y.) 24. 
 
 * Karker v. Haverley, 50 Barb. (N. Y.) 79. In this case the purchaser tendered 
 the cash payment, but refused to execute a bond and purchase-money mortgage 
 for the deferred payments upon the ground that the property was incumbered. 
 The vendor then brought an action to recover $600 liquidated damages. Judg- 
 ment was rendered for the defendant. 
 
 'Mathison v. Wilson, 87 111. 51. Sims v. Boaz, 19 Miss. 318. Drew v. Pedlar, 
 87 Cal. 443; 25 Pac. Rep. 749. Buchanan v. Lorman, 8 Gill (Md.), 51. Thus, 
 where the purchaser had paid part of the purchase money, and a conveyance had 
 been executed in escrow, and afterwards the vendor reclaimed the escrow from 
 the holder and denied the validity of the contract with intent to rescind the same, 
 it was held that the purchaser might recover back the purchase money paid with- 
 out showing a tender of that which remained unpaid, and demand of the deed. 
 Merrill v. Merrill, 95 Cal. 834; 80 Pac. Rep. 542. 
 
■204 MAEKETABLB TITLE TO REAL ESTATE. 
 
 purchaser that he will not execute a conveyance/ or receive the 
 purchase money.^ 
 
 Mere inability of the vendor to make a perfect title will not, 
 under all circumstances, relieve the purchaser of the duty of tender- 
 ing 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. ^ 
 
 § 88. DUTY or THE VENDOB TO TENDER PEREORMAlirCE. 
 If, under the contract, the payment of the purchase money and the 
 ■conveyance of a good title be concurrent and dependent acts, the 
 purchaser may detain the purchase money until such a conveyance 
 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.* If the con- 
 
 ' Traver v. Halstead, 33 Wend. (N". Y.) 66; Foot v. West, 1 Den. (N. T.) 544 
 Eemy v. Olds, 88 Cal. 537. It has been said that if the vendor denies the obliga- 
 tion 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. 3 
 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, 
 '31 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. 
 
 * 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 Harrington v. Higgins, 17 W. R. 376; 
 Green v. Green, 9 Cow. (N. Y.) 46; Greenby v. Cheevers, 9 Johns. (N. Y.) 126. 
 
 ■> 1 Sugd. Vend. (8th Am. ed.) 364 (240); Chitty Cent. (10th Am. ed.) 330. Swan 
 V. Drury, 23 Pick. (Mass.) 485. Critchett v. Cooper, 65 N. H. 167; 18 Atl. Rep. 
 778. McWilliams v. Long, 32 Barb. (jST. Y,) 194; 19 How. Pr. 547. Guthrie v. 
 Thompson, 1 Oregon, 353. Pershing v, Canfleld, 70 Mo. 140. Overly v. Tipton, 
 '68 Ind. 410; Soule v. Holdridge, 63 Ind. 213; Melton v. Coffelt, 59 Ind. 310; 
 
TENDER OP PEEFOEMANCE AND DEMAND FOE DEED. 205- 
 
 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.' 
 The rule that the vendor must tender performance in order to put 
 the purchaser in default does not apply if the latter has given notice 
 that he v^ill be unable to pay the purchase money, even though the 
 abstract furnished by the vendor shovred an objection to tiie title. 
 The vendor is under no obligation to remove or offer to remove the 
 objection when the purchaser declares his own inability to complete 
 the contract.^ Nor where the purchaser declares that he will not 
 accept a deed.' If the purchase money is payable in installments, 
 and the piirchaser is not to receive a deed until the last installment 
 is paid, the covenants are independent, except as to the last install- 
 ment,^ and the weight of authority seems to establish the rule that, 
 the purchaser cannot decline to pay one of the intermediate install- 
 ments upon the ground that the vendor has no title, for non constat, 
 but that he may acquire or perfect the title before the last install- 
 ment becomes due.^ It may be doubted whether this rule would 
 
 Parker v. McAllister, 14 Ind. 13. In Stingle v. Hawkins, 8 Blaokf. (Ind.) 435, a 
 vendor executed a title bond conditioned to make a deed on the payment of cer- 
 tain 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 suflBcient reason for not doing so. Citing Leonard v. Bates, 
 1 Blaokf. (Ind.) 172; Owen v. Norris, 5 id. 479; Burrows v. Yount, 6 id. 458; 39' 
 Am. Dec. 439. 
 
 ' Kirkland v. Little, 41 Tex. 456. 
 
 ' Johnston v. Johnston, 48 Minn. 5; 44 N. "W. Rep. 668. 
 
 'Sweltzer V. Hummel, 3 Serg. & R. (Pa.) 328; Hampton v. Specknagle, 9 Serg. 
 & R. (Pa.) 33; 11 Am, Dec. 704. Buoklen v. Hasterlik, 155 111. 428; 41 N. E. 
 Rep. 561. 
 
 * Terry v. George, 37 Miss. 539. Kane v. Hood, 18 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 
 having 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. 
 
 'Post, ch. 34, § 358. Kane v. Hood, 18 Pick. (Mass.) 381. Duncan v. Charles, 
 4 Scam. (HI.) 561; Runkle v. Johnson, 30 111. 838; Monson v. Stevens, 56111. 335. 
 
206 MAEKKTABLE TITLE TO REAL ESTATE. 
 
 apply in a case in wliicli it is clear that the vendor cannot get in an 
 outstanding title because vested in a person incompetent to convej', 
 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 payment of the 
 purchase money, does not ap])ly to a proceeding in equity to collect 
 the purchase money. The reason stated for this exception is that the 
 rights of the jDurchaser may be protected upon final decree in the 
 cause.' The vendor is not bound to tender a deed to a sub-pur- 
 chaser ; it is sufficient if he make tender to the original purchaser. 
 He cannot be required to hunt up the assignees of the purchaser.^ 
 
 In the American States,' with but few exceptions,* it is the duty 
 of the vendor to prepare and pay for the conveyance and have it in 
 readiness for delivery when demanded by the purchaser. In the 
 English practice, the purchaser prepares the conveyance and tenders 
 it to the vendor with the purchase money.' The American rule, as 
 generally expressed, is that, to put the vendor in default, it is neces- 
 sary that the vendee should demand a deed, wait a reasonable time 
 
 Johnson v. Wygant, 11 "Wend. (K. Y.) 50, semble; Harrington v. Higgins, 17 
 Wend. (N. Y.) 376. Lockwood v. Hannibal & St. J. R. Co., 65 Mo. 333; Smith 
 V. Busby, 15 Mo. 387; 57 Am. Dec. 307. Oakes v. Buckley, 49 Wis. 593. 
 
 ' Rutherford v. Haven, 11 Iowa, 587; Winton v. Sherman, 20 Iowa, 395. The 
 same rule seems to prevail in Texas; Bridge v. Young, 9 Tex. 401; Lawrence v. 
 Simonton, 13 Tex. 230; Taylor v. Johnston, 19 Tex. 851. 
 
 - Heidenberg v. Jones, 73 111. 149. 
 
 8 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.) 30. Standifer v. Davis, 13 Sm. & M. (Miss.) 48. Sous 
 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. Buckmaster v. Grundy, 1 
 Scam. (111.) 310; Headley v. Shaw, 39 111. 354. It is only necessary that the pur- 
 chaser shall allege that he demanded a deed; be need not allege that he prepared 
 it and presented it for execution. Standifer v. Davis, 13 Sm. & M. (Miss.) 548. 
 
 ^Byers v. Aiken, 5 Pike (Ark.), 419, 497. But see Arledge v. Brooks, 22 Ark. 
 437. In Alabama, the English rule that the purchaser must prepare the convey- 
 ance and tender it to the vendor to be executed, has been held to prevail. Wade 
 V. Killough, 5 Stew. & P. (Ala.) 450; Chapman v. Lee, 55 Ala. 616. 
 
 n Sugd. Vend. (8th Am. ed.) 366 (341). 
 
TENDER OF PEEFORMANCE AND DEMAND FOE DEED. 207 
 
 for the vendor to get it drawn, and tlien present himself to receive 
 it.^ Of course, the parties may contract that the purchaser shall 
 prepare and tender the deed for execution.^ It has been held that 
 a personal representative of an assignee of the vendor, having no 
 connection with the contract and no act to perform in respect to it, 
 need not tender a conveyance as a .condition precedent to the 
 enforcement of a vendor's lien on the property.^ 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 tlie 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 ; ^ the purchaser being at liberty, however, to obviate 
 the necessity of a second demand, by himself preparing and tender- 
 ing the deed.' 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 
 deliveiy at the time appointed for the completion of the contract, 
 and that a demand for the deed at that time is sufficient to put him 
 in default." 
 
 § 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 performance 
 
 'Puller V. Hubbard, 6 Cow. (N. Y.) 13; 16 Am. Deo. 423; Hackett v. Huson, 
 3 Wend. tN. Y.) 250. Dye v. Montague, 10 Wis. 15. 
 
 'Tinney v. Ashley, 14 Pick. (Mass.) 546; 36 Am. Dec. 620. As where the con- 
 tract provides that the vendor shall execute such conveyances as the purchaser 
 shall devise. Sweitzer v. Hummel, 3 Serg. & R. (Pa.) 228. 
 
 ^Mhoon V. Wilkinson, 47 Miss. 638, 
 
 * Puller v. Hubbard, 6 Cow. (N. Y.) 13; 16 Am. Dec. 423; Puller v. Williams, 
 7 Cow. (N. Y.) 53; 17 Am. Dec. 498; Hackett v. Huson, 3 Yfend. (N. Y.) 250; 
 Connelly v. Pierce, 7 Wend. (N. Y.) 129; LutwelJer v. Linnell, 13 Barb. (N. Y.) 
 512; PearsoU v. Prazer, 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.) 139, 133; Wells v. Smith, 2 Edw. (N. Y.) 
 78; Foote v. West, 1 Den. (N. Y.) 544; Camp v. Morse, 5 Den. (N. Y.) 164. 
 
 « Carpenter v. Brown, 6 Barb. (N. Y.) 147. 
 
208 MAEKETABLE TITLE TO REAL ESTATE. 
 
 on his own part/ or aver a present willingness ana ability to per- 
 form,^ or set out facts which excuse his own non-performance, such 
 as an absolute want of title in the vendor, or that the vendor had 
 notified him that he would not or could not complete the contract.'' 
 Wherever it is necessary that the purchaser shall have tendered a 
 conveyance and the purchase money as a condition precedent to his 
 right to rescind the contract, or to recover damages 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.'' 
 
 ' Clark V. Locke, 11 Humph. (Tenn.) 300. Grace v. Regal, 11 8. & R. (Pa.) 
 351. 
 ' Smith v. Robertson, 11 Ala. 840. 
 ' Sons of Temp. v. Brown, 9 Minn. 157. 
 * Johnston v. Beard, 15 Miss. 314. 
 
CHAPTER X. 
 
 MEASURE OF DAMAGES FOR INABILITY TO CONVEY A GOOD 
 
 TITLE. 
 
 GENEBAL OBSERVATIOITS. § 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.,' 
 or substantial ; that is, reimbursement in these particulars, and, in 
 addition, the difEerence between the value of the land at the time 
 the contract was made measured by the purchase jDrice, 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.^ Profits which 
 
 ' It is hoped that the application of the term "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 hack 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, he 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.) 
 
 873; 3 Sedg. Dam. (8th ed.) § 1018. Engel v. Fitch, L. R., 3 Q. B. 314. Hop- 
 
 27 
 
210 MABKETABLE 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.^ ISTor can the purchaser include in his esti- 
 mate of damages profits anticipated from the prosecution of his 
 business on tlie premises which should have been conveyed to him. 
 Such damages are too remote, and are, besides, speculative and 
 incapable of ascertainment.^ 
 
 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 wlierever the vendor, having a good title, per- 
 versely and wrongfully refuses to convey,^ or puts it out of his 
 power to perform the contract by conveying to a stranger without 
 
 kins V. Lee, 6 Wh. (U. S.) 109. Baldwin v. Munn, 2 Wend. (N. Y.) 399; 30 Am, 
 Dec. 637; 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; Measou v. 
 Kaine, 67 Pa. St. 133. 
 
 ' Sanderlin v. Willis, 94 Ga. 171; 21 S. E. Rep. 391. 
 
 ' Q-reene v. Williams, 4.5 111. 206; Hiner v. Richter, 51 111. 399. These were 
 both cases in which the vendor refused, without sufficient cause, to perform his 
 contract. A fortiori would the rule apply where he was prevented from per- 
 forming the contract by an unsuspected defect of title. 
 
 33 Sedg. Dam. (8th ed.) § 1006. Baldwin v. Munn, 3 Wend. (N. Y.) 399; 20 
 Am. Dec. 627; Brinckerhoff v. Phelps, 34 Barb. (N. Y.) 100; S. C, 43 Barb. (N. 
 Y.) 469. Rowland v. Dowe, 3 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. Rineor v. Collins, 156 Pa. St. 342. 
 
MEASURE OF DAMAGES FOE INABILITY TO CONVEY A GOOD TITLE. 211 
 
 notice of the purchaser's rights.^ Were the rule otherwise, the 
 vendor might in every ease 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 firsJ; 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 tlie 
 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.^ 
 
 § 91. WHERE THE VENDOR ACTS IN GOOD FAITH. Flureau 
 V. ThornMU. 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 
 ill 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.' 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.* The leading case upon this point in England is Flureau v. 
 
 J. 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. 
 
 » Fowler v, Johnson, 19 Ind. 207. 
 
 'CocKBUEN, L. C. J., in Engel v. Fitch, L. R, 4 Q. B. 659. 3 Sedg. Dam. 
 180, 181. 
 
 " 1 Sugd. Vend. (8th Am. ed.) 537; Chitty Cont. (10th Am. ed.) 338; 2 Dart V 
 & P. (4th Bng. ed.) 873; 3 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. 458, obiter. 
 "Walker v. Moore, 10 Bam. & C. 416; S. C, 21 E. C. L. R. 179, was a strong case. 
 The vendor acting bona fide delivered an abstract showing a good title; and the 
 purchaser, before verifying the abstract, resold the property in several portions 
 to sub-purchasers at a large profit (£1,500). Afterwards, on comparing the 
 abstract with the original deeds, the title was found to be defective, in 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 
 
212 MAEKETABLE TITLE TO EEAL ESTATE. 
 
 Thornhill,' Sir "William Blackstone being one of the judges who 
 dehvered opinions in that case. Some dissatisfaction with tliis 
 decision has been expressed in several English cases,^ but it is now 
 regarded there as settled law.^ In the American States it is believed 
 that the weight of authority inclines to tlie 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,* 
 
 resale, but it was held that he could recover only the expenses incurred by him 
 in examining the title, and nominal damages for the breach of contract. 
 
 ' 3 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 £370 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 ,iury, contrary to the 
 direction of the judge, gave a verdict for the deposit and £30 damages. On a 
 motion for a new trial DeGeey, 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 bargaia 
 which he supposes he lost." The new trial was granted. 
 
 'Engel V. Fitch, 10 B. & S. 738; S. C, L. R., 4 Q. B. 659. 
 
 3 Sikes V. Wild, 1 B. & S. 587; Bain v. Fothergill, L. R., 7 H. L. 158; Rowe v. 
 School Board, 36 Ch, D. 619. 
 
 " Sutherland Dam. 317. Letcher v. Woodson, 1 Brock. (U. S.) 313, per Mar- 
 shall, C. J. Blackwell v. Lawrence County, 3 Bl. (Ind.) 143; Sheets v. 
 Andrews, 3 Bl. (Ind.) 143; Adamson v. Rose, 30 Ind. 380; Junk v. Barnard, 99 
 Ind. 137; Puterbaugh v. Puterbaugh, 7 Ind. App. 380, obiter; S. C, 34 N. E. 
 Rep. 611. Sweem v. Steele, 5 Iowa, 352; Foley v. Keegan, 4 Iowa, 1; 66 Am. 
 Dec. 107. Lister v. Batson, 6 Kans. 412, serrible. Rutledge v. Lawrence, 1 A. 
 K. Marsh. (Ky.) 397; Allen v. Anderson, 3 Bibb (Ky.), 415; Oo.k v. Strode, 3 
 Bibb (Ky.), 375; 5 Am. Dec. 603; Herndon v. Venable, 7 Dana (Ky.), 371; Combs 
 V. Tarlton, 3 Dana (Ky.), 464; GofE v, Hawkes, 5 J. J. Marsh. (Ky.) 341. Balti- 
 more P. B. & L. Soc. V. Smith, 54 Md. 187; 39 Am. Rep. 874, distinguishing the 
 early cases of Connell v. McLean, 6 Harr. & J. 397, and Marshall v. Haney, 9 
 Gill, 251; 59 Am. Dec. 93. The question was left undecided in Rawlings v. 
 Adams, 7 Md. 26, 51. Hammond v. Hannin, 21 Mich. 374; 4 Am. Rep. 490, per 
 CoOLET, J. Dunnica v. Sharp, 7 Mo. 71. But, see Missouri cases cited contra, 
 post, next note. Drake v. Barker, 34 N. J. L. 358. Baldwin v. Munn, 3 Wend. (N 
 Y.) 399; 30 Am. Dec. 627, leading case; Peters v. McKeon, 4 Den. (N. Y.) 546; 
 Fletcher v. Button, 6 Barb. (N. Y.) 646; Conger v. Weaver, 30 N. Y. 140; Cock- 
 roft V. N. Y. & H. R. R. Co., 69 N. Y. 304; Earl, 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, 11 Pa. St. 139; Dumars v. Miller, 84 Pa. St. 319; Hertzog v. Hert- 
 
MEASUEE OF DAMAGES FOE INABILITY TO CONVEY A GOOD TITLE. 213 
 
 but in many of the States the opposite rule prevails,^ and in 
 others it is said that the Enghsh 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.), 335; Graham v. 
 Graham, 34 Pa. St. 475; McNair v. Oompton, 35 Pa. St. 33; Ewing v, Thomp- 
 son, 66 Pa. St. 382; Burk v. Serrill, 80 Pa. St. 413; 21 Am. Rep. 105; Tyson v. 
 Eyrick, 141 Pa. St. 296; 21 Atl. Rep. 635. See, also, Rineer v. Collins, 156 Pa. St. 
 343. Sutton v. Page, 4 Tex. 142; Wheeler v. Styles, 38 Tex. 240; Hall v. York, 
 33 Tex. 643. Jackson v. Turner, 5 Leigh (Va.), 119, obiter ; Wilson v. Spencer, 
 11 Leigh (Va), 361; Thompson v. Guthrie, 9 Leigh (Va.), 101; 33 Am. Dec. 
 335; Click v. Green, 77 Va. 837, obiter; Abernathy v. Phillips, 83 Va. 769; 1 S. 
 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. 306; 68 Am. Dec. 57; Combs v. Scott, 76 Wis. 662, ^Id, obiter. 
 In Cox V. Henry, 33 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 recov sr the land. 
 
 ' 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. 323. Bryant 
 V. Hambrick, 9 Ga. 133; Newsom v. Harris, Dudley (Ga.), 180; Gibson v. Car- 
 reker, 83 Ga. 46; Ga. Code, § 3949; 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. 223; 20 Am. Rep. 361. Lewis v. 
 Lee, 15 Ind. 499. But see the Indiana cases, supra, following Plureau 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, 39 La Ann. 386. Robinson v. Heard, 15 Me. 296; Hill v. Hobart, 16 
 Me. 164; Warren v. Wheeler, 21 Me. 484; Lawrence v. Chase, 54 Me. 196; Russell 
 V. Copeiand, 30 Me. 333; Dohcrty v. Dolan, 65 Me. 87; 30 Am. Rep. 677. Trask 
 v^ Vinson, 30 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 
 
214 MARKETABLE TITLE TO EEAL ESTATE. 
 
 perform the contract.^ The reasons for the ru]e established in 
 Flureaii v. Thornhill, and the cases which follow that decision, are 
 principally and briefly there. 
 
 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 artiiicial and complex, 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 shor.'-d 
 be discovered, and the vendor acting in good faith be unable to 
 complete the contract.^ 
 
 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 tlie 
 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. The rule prevails everywhere, except in several of the ^ew 
 England States, that upon a breach of tiie 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. 639. Nichols v. Freeman, 11 Ired. (N. C.) 99. Barbour v. Nichols, 3 R. I. 
 187. Cocke v. Taylor, 3 Tenu. 50; Perkins v. Hadley. 4 Hayw, (Tenn.) 143; 
 Crittenden v. Posey, 1 Head (Tenn.), 330, obiter; Hopkins v. Yowell, 5 Yerg. 
 (Tenn.) 805; Clarke v. Locke, 11 Humph. (Tenn.) 303; Shaw v. Wilkins, 8 
 Humph. (Tenn.) 647; 49 Am. Dec. 693. 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) 35 Pac. Rep. 731. 
 
 1 Pumpelly v. Phelps, 40 N. Y. 59; 100 Am. Dec. 468. 
 
 '^ Sir William Blackstonb in Plurean v. Thornhill, 3 W. Bl. 1078; Cockbukn, 
 C. J., in Sikes v. Wild, 1 B. & S. 596. "When a contract for the sale of lands 
 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 v. 
 Moore, 10 Barn. & Crcs. 422; S. C, 31 E. C. L. 181. 
 
 3 Sutherland, J., in Baldwin v. Munn, 3 Wend. (N. Y.) 399; 30 Am. Deo. 
 637, adopting the reasoning of Kent, Ch., in Staats v. Ten Eyck, 3 Caines (N. 
 y.), 115; 3 Am. Dec. 354, where the contract had been executed by a convey- 
 ance, with covenants for title. 
 
MEAStTEE OF DAMAGES FOE INABILITY TO CONVEY A GOOD TITLE. 215 
 
 the premises at the time of the eviction of the covenantee.' It has 
 been held that, in this respect, an executory contract is not distin- 
 guishable from one that lias been executed, and that in either case 
 the measure of damages is tlie same. It would be an anomaly if 
 the vendor could relieve himself from liabiHty for the increased 
 value of the premises by simply executing a conveyance to tlie pur- 
 chaser with a covenant of warranty.^ The fact that the land has 
 
 > Post, 1 164. 
 
 ^Peters v. McKeon, 4 Den. (N. Y.) 546. Drake v. Baker, 34 N. J. L. 358, 360. 
 Duiuars v. Miller, &4 Pa. St. 319. Allen v. Anderson, 2 Bibb (Ky.), 415. Black- 
 well V. Laurence County, 3 Bl. (Ind.) 148; Sheets v. Andrews, 2 Bl. (Ind.) 274. 
 Threlkeld v. Fitzliugh, 3 Leigli (Va.), 459; 44 Am. Dec. 384; Stout v. Jackson, 
 2 Rand. (Va.) 132. Baker v. Gorbett, 28 Iowa, 317. Hammond v. Hannin, 21 
 Mich. 373, 388; 4 Am. Rep. 490, Gooley, J., saj'ing: "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 cca- 
 vey." In Connell v. McLean, 6 Harr. & J. (Md.) 397, 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 
 
216 MAEKETABLE TITLE TO EEAL 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.' The case of Hopkins v. 
 Lee ^ 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 lona fides or innocence of intent at 
 the time the contract was made, or that of his ability or inability to 
 perform the contract.'^ 
 
 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 dam- 
 entitled to damages for the loss of his bargain on failure of the title where the 
 contract is executory. Connell v. McLean, 6 Harr. & J. (Md.) 397. In either 
 case, a distinction is drawn between executed and executory contracts as respects 
 the rule of damages, but with directly opposite results. Apparentlj^, 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 u 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. 
 
 ' See the remarks of the court in Drake v. Baker, 34 N. J. L. 363, and Baldwin 
 v, Munn, 2 Wend. (N. Y.) 399, 407; 20 Am. Dec. 627. 
 
MEASDEE OF DAMAGES FOE INABILITY TO CONVEY A GOOD TITLE. 217 
 
 ages, and (2) that sucli 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 liis 
 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 tliat 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 ; '■ and, 
 second, because, should the vendor ferret out a defect in his title as 
 an excuse for non-performance, the purchaser inaiy always elect to 
 take the title, such as it is, and compel specific performance hy the 
 vendor.^ Against the rule it has been further urged that it is 
 inequitable, in that it holds the purchaser to a bad bargain and 
 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 wns made.' But in 
 
 ' Ante, p. 310. 
 
 ' Post, § 197. 
 
 23 Sedg. Dam. (8tli ed.) § 1020; 8 Sutherland Dam. 328. Obviously there 13 
 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, 70 Wis. 670, there is, however, a dictum that in 
 cases of barter contracts, the value of the land (which should have been conveyed) 
 28 
 
218 MAEKETABLB TITLE TO EEAL ESTATE. 
 
 those jurisdictions in which the purchaser from an innocent vendor 
 is allowed damages for the loss of his bargain/ or wherever the 
 vendor has acted in bad faith,^ 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 for another, and the tract which 
 the plaintiff agreed to convey appears to be less valuabl3 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. ^ 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.'' 
 
 at the time of the breach is from necessity the measure of damages. C'it- 
 ing Brigham y. Evans, 113 Mass. 538, a case which, it seems, decides no more 
 than that the plaiutifE 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. 
 
 ' Wells V. Abernethy, 5 Conn. 323. 
 
 ' Devin v. Himer, 39 Iowa, 297. Bierer v. Fretz, 82 Kans. 839. Greenwood v. 
 Hoyt, 41 Mnn. 381. 
 
 " Fagen v. Davison, 3 Duer (N. Y.), 158. 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. 
 
 ^Rohr V. Kindt, 3 W. & S. (Pa.) 568; 89 Am. Dec. 53. Here the consideration 
 of the contract of sale was that the purchaser should withdraw a cai^eat 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 onlj' 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. 
 
MEASUEE OF DAMAGES FOE INABILITY TO CONVEY A GOOD TITLE. 219 
 
 § 93. Expenses of examining the title. Other expenses. 
 
 As a general rule the jDnrchaser, on failure of the title, may recover 
 as damages, in addition to such part of the purchase money as has 
 been paid, the expenses incurred by him in examining the title.' 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.^ 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.^ 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 tliem 
 in examining the title.* 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.' 
 By analogy to the rule which prevails in an action for breach of a 
 
 ' 1 Sugd. Vend. (8th Am. ed.) 547; 2 Sutherland Dam. 32; 3 Sedg. Bam. (8th 
 ed.) § 1017. Canfield v. Gilbert, 4 Esp.'321; 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 part- 
 ing with the purchase money and accepting a conveyance, are properly made 
 available by way of protection, and unless an understanding in some manner 
 appear to the contrary, the examination of the title by the vendee and the reason- 
 able expense of making it, may be regarded as in the contemplation of the par- 
 ties, and treated as properly incidental to tlie contractual situation, and, conse- 
 quently, 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. 
 
 s Hodges V. Litchfield, 1 Bing. N. C. 492. 
 
220 MARKETABLE TITLE TO EEAL 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.' 
 
 § 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,^ on money kept idle by him with which 
 to pay the purchase money, and also on money borrowed by him for 
 that purpose.^ 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.* 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.^ In Tennessee, a State in whicli 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 aU 
 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.^ 
 
 § 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 
 
 ' Post, §^ 173, 17.5. 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 defeudingejectment for the premises. Robinson v. Bralce- 
 well, 25 Pa. St. 434. 
 
 ' 1 Sugd. Vend. (8th Am. ed.) 360; 2 Sugd. Vend. (8th Am. ed.) 329; 2 Suther- 
 land Dam. 221. See, generally, the cases cited throughout this chapter. 
 
 2 1 Sugd. Vend. (8th Am. ed.) 360. 
 
 ^Post, next section, "Rents and Profits." 
 
 ' 1 Sugd. Vend. (7th Am. ed.) 302 (258). 
 
 "Shaw V. Wilkins, 8 Humph. (Tenn.) 646; 49 Am. Dec. 692. 
 
MEASTJEE OF DAMAGES FOE INABILITY TO CONVEY A GOOD TITLE. 221 
 
 benefit of possession by the purchaser. The purchaser is liable to 
 the true owner for the mesne profits.^ 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.^ 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.' And 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 ; ' 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 
 pi'ofits, it has been held that he cannot recover interest on the pur- 
 chase money against the vendor.'' 
 
 I 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 permanency of the rents and profits by the pur- 
 chaser 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. 
 Ilerndon v. Venable, 7 Dana (Ky.), 371; Lowry v. Cox, 2 Dana (Ky.), 470. These 
 decisions appear to ignore the liability of the purchaser to the true owner for the 
 rents and profits. 
 
 ' Wtiite V. Tucker, 53 Miss. 147. 
 
 < Thompson v, Guthrie, 9 Leigh (Va,), 101; 33 Am. Dec. 225. 
 
 ■ Post, g 173. Cogwell v. Lyons, 8 J. J. Marsh. (Ky.)41, which, however, was 
 a siut in equity for specific performance and damages. 
 
222 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 tlie title, he does so at 
 his own risk.^ 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.^ Of 
 course the purchaser cannot recover for improvements made by 
 
 ' 3 Sugd. Vend. (8tli Am. ed.) 515 (748). But the rule is otherwise in equity. 
 Id. 514. Walton v. Meelcs, 120 N. Y. 79; 33 N. E. Rep. 1115, distinguishing 
 G-ibert v. Peteler, 38 N. Y. 165, -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 ascer- 
 tained, he does so at his own risk." In Sedgwick Damages (8th ed.), section 
 1017, it is said: "Where the plaintiff was let into possession under the contract, 
 lie may recover the reasonable value of the improvements, less the value of the 
 use of the land (Bellamy v. Eagsdale, 14 B. Mon. (Ky .) 293; Sheard v. Welburn, 67 
 Mich. 887), probably in all cases, but certainly when the defendant knew he had 
 no title. Erickson v. Bennet, 89 Minn. 336." The case first cited was one in. 
 -which the vendor refused to convey; no question of title was raised. The sec- 
 ond 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. 396; 21 Atl. Rep. 
 635, the purchaser was under ths 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 damages 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." 
 
 ' 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. 3 Story Eq. Jur. 1337. 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 bo no doubt of his right to the allowance if the real owner stood by 
 and saw the improvements going on without asserting his title. SouthaU v. 
 McKeand, 1 Wash. (Va.) 336. Green v. Biddle, 8 Wh. (U. S.) 1, 77, 88. 
 
MEASUEE OF DAMAGES FOE INABILITY TO CONVEY A GOOD TITLE. 223 
 
 liim after discovering the vendor's inability to convey,' unless, it is 
 apprehended, he was induced to lay out money on the vendor's 
 engagement to perfect the title.' 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.' 
 
 "Where the vendor fraudulently conceals or misrepresents the 
 state of his title, the purchaser may recover for improvements.* 
 It would seem that if the purchaser, instead of affirming the con- 
 tract by action for damages, seeks to rescind,^ which implies a restor- 
 ation of the premises with the imjjrovements thereon to the vendor, 
 he would in an action to recover back the purchase money be enti- 
 tled 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 neces- 
 sary to keep the premises in common condition.* 
 
 § 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 per- 
 formed ; in other words, he may have damages for the loss of his 
 bargain.'' In England, however, it is held that such fraud cannot 
 aggravate the purchaser's damages in an action for breach of the 
 
 'Lindley v. Lukin, 1 Bl. (Ind.) 266. 
 
 = As iQ Martin v. Atkinson, 7 Ga. 338; 50 Am. Dec. 403. 
 
 sMcKinney v. Watts, 3 A. K. Marsli. (K;y.)368. 
 
 4 Erickson v. Burnett, 39 Minn. 326. 
 
 ' Taylor v. Porter, 1 Dana (Ky.), 431; 25 Am. Dec. 155. But see Wilhelm v. 
 Kmple, 31 Iowa, 137; 7 Am. Rep. 117. 
 
 " 1 Sugd. "Vend. (8th Am. ed.) 391. Thompson v. Kilcrease, 14 La Ann. 340. 
 
 ' 1 Sugd. Vend. eh. 9, § 3; 3 Sedg. Dam, (8th ed.) § 1010. Krumm y. Beach, 
 96 N. Y. 398; Peters v. McKeon, 4 Den. (N. Y.) 546; Northridge v. Moore, 118 
 ]Sr. Y. 419; 23 N. E. Rep. 570. In a case of fraud by the vendor the measure of 
 damages is 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 v. 
 
224 MARKETABLE TITLE TO REAL ESTATE. 
 
 contract ; he must resort to his action for deceit, in which he will 
 recover damages for all that he has lost through the vendor'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 con- 
 tract is immaterial to the quantum of damages resulting from a non- 
 performance.' 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.* 
 In Pennsylvania it is held that if the acts of the vendor in selling 
 without title amount to a fraud, the purchaser 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.' 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 expenses, that is, unless he has put 
 improvements on the premises.* What constitutes fraud by the 
 vendor in respect to the title will be elsewhere considered in this 
 work.^ 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 ordi- 
 nary investigation as a prudent man should make.^ But inasmuch 
 
 Hawks, 5 J. J. Marsli. (Ky.) 342. Erickson v. Bennett, 39 Minn. 836; Lancoure 
 v. Dupre, (Minn.) 55 N. W. Rep. 139. 
 
 ' 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. 
 
 3 Good V. Good, 9 Watts (Pa.), 567; Lee v. Dean, 3 Whart. (Pa.) 316; Hertzog 
 v. Hertzog, 34 Pa. St. 418; Meason v. Kaine, 67 Pa. St. 126; Burk v. Serrill, 80 
 Pa. 413; 21 Am. Rep. 105. But see King v. Pyle, 8 S. & R. (Pa.) 166; Bitner v. 
 Brough, 11 Pa. St. 127. 
 
 ■i Haddock v. Taylor, 74 Tex. 216; 11 S. W. Rep. 1093. 
 
 'Post, ch. 11. 
 
 «McConnell v. Dunlop, Hard. (Ky.) 44; 3 Am. Dec. 723; Stephenson v. Har- 
 rison, 3 Litt. (Ky.) 170. 
 
MEASTTRE OF DAMAGES FOE INABILITY TO CONVEY A GOOD TITLE. 225 
 
 as it is settled that a vendor is liable to the purchaser in substantial 
 damages when he knows that the title is not complete, even thougli 
 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.^ Accord- 
 ingly it has been held error in the court, on an inquiry of damages, 
 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.' 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.* 
 
 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.' 
 
 § 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 l)ona fide intention or expectation of 
 acquiring the complete legal title bj' the time fixed for completing 
 the contract. And it frequently happens that, having the equitable 
 
 ' Davis V. Lewis, 4 Bibb (Ky.), 456. 
 
 2 Rutledge v. Laurence, 1 A. K. Marsh. (Ky.) 396. 
 
 ^Goff V. Hawks, 5 J. J. Marsli. (Ky.) 342. 
 
 ■•Wohlfarth v. Chamberlain, 14 Daly (N. Y.), 180. In this case, the vendor 
 derived title through a sale previously made by himself as an assignee 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. 
 
 26 
 
226 MARKETABLE TITLE TO EEAL ESTATE. 
 
 title, he sella 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.' 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 lias 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.' 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.* The leading American case upon this point is Pumpelly 
 V. Phelps.^ There, a trustee having power to convey only upon the 
 
 '6B. &C. 31. 
 
 n Sugd. (8th Am. ed.) 540. 
 
 'Bush V. Cole, 38 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, 
 hut receives the consideration, the measure of damages would be the money 
 received, and interest. 
 
 "Chitty Cont. (9th Eng. ed.)289; 3 Sedg. Dam. (8th ed.) § 1011. 
 
 ■^40 N. Y. 59; 100 Am. Dec. 468; 8. C, nom. Brinkerhoff v. Phelps, 43 Barb. 
 (N. Y.) 469. 
 
MEAStJRE OF DAMAGES FOE INABILITY TO CONVEY A GOOD TITLE. 227 
 
 written consent of the cestui que trust, 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 vahie 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,' unless, indeed, having in view that con- 
 tingency, the vendor nevertheless undertakes to perfect the title by 
 a specified time.^ 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.* 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- 
 
 ' 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. 
 
 ^ 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, p. 36. 3 Sutherland Dam. 331. 
 
 *Post, ch. 19. "Drake V. Baker, 34 N. J. L. 858. Tirnbey v. Kinsey, 18 Hun 
 (N. Y.), 355; Heimburg v. Ismay, 85 N. Y. Super. Ct. 35, 40. Martin v. Mer- 
 ritt, 57 Ind. 84; 36 Am. Rep. 45; Puterbaugh v. Puterbaugh, 7 Ind. App. 280; 
 S. C, 84 N. E. Rep. 611. 
 
228 MARKETABLE TITLE TO EEAL 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.^ 
 
 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.^ 
 
 § 99. WHERE THE VENDOR REFUSES TO CURE A DEFECT OR 
 REMOVE UTCUMBRANCES. 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 jDremises at the 
 time of the breach.^ Upon the same principle it has been held that 
 if a vendor expressly agree to perfect the title, or to do some ^ct 
 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.* 
 
 • Burk v. SeiTill, 80 Pa. St. 413; 21 Am. Rep. 105. See, also, Donner v. Reden- 
 baugh, 61 Iowa, 269; 16 N. W. Rep. 127, and post, ch, 18, § 199, and notes. 
 
 « 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. Delauey, 
 35 Iowa, 16, the vendor having received §400 for the laud, executed a bond in 
 the penalty of 8400, to procure title from a third person, and it was held that the 
 purchaser might recover that sum as "liquidated damages," though he had 
 received a conveyance of the land and had not been disturbed in the possession. 
 In Yokum v. McBride, 56 Iowa, 139, the vendor agreed to perfect the title by 
 procuring a patent to the purchaser from the State, and the court held that if the 
 vendor was unable to procure the patent without fault on his part, the purchaser 
 could recover only nominal damages. 
 
 3 1 Chitty Cont. (9th Eng. ed.) 289; 3 Sedg. Dam. 182. WiUiams v. Glentou, L. 
 R., 1 Ch. App. 200; Simons v. Patchett, 7 El. & Bl. 568; Goodwin v. Francis, 
 L. R., 5 C. P. 295; Robinson v. Hardman, 1 Exch. 850; Engel v. Pitch, 4 Q. B. 
 659. Kirkpatrick v. Downing, 58 Mo. 32; 17 Am. Rep. 678. 
 
 ■■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 EOE INABILITY TO CONVEY A GOOD TITLE. 229 
 
 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.^ 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. LiauiDATED 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 
 damages for the present value of the land. But the amount agreed 
 upon must be reasonable ; otherwise it will be regarded as a penalty, 
 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.^ Tiie 
 
 which he undertakes to complete and perfect, and neglects so to do, continued: 
 ' ' In this case there is an expressed agreement for indemnity, and a recovery 
 which 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 per- 
 form their agreement by paying for the lands to perfect her title. The loss was 
 occasioned by the act of the defendants, against which they covenanted to indem- 
 nify 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." 
 
 ' 3 Sutherland Dam. 238. The same rule prevails in an action for breach of the 
 covenant of warranty or against incumbrances. Post, §§ 129, 164. 
 
 2 2 Sutherland Dam. 228. With the exception of Cox v. Henry, 33 Pa. St. 18, 
 all the cases cited by this author to the proposition in the text were actions for 
 breach of covenants for title. See 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. 
 
 ' 1 Segd. 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, 13 Barb. (N. Y.) 137, where it was said by the 
 court: " When the damages to be recovered are liquidated in advance by the 
 terms of the contract it is a mistake to assume that the party claiming is alone 
 benefited. Such a stipulation may be as beneficial to the party who pays as to 
 Mm who receives. Both enter into the contract with a full knowledge of aU 
 
230 MAEKETABLE TITLE Tij EEAL ESTATE. 
 
 penalty of a title bond is usually double tlie purchase money, and 
 when that is the case, is, of course, as it purports to be, merely a 
 penalty and not liquidated damages.^ 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.^ 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.' 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.* In a 
 case in Illinois the following rule was annoimced : " 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 wUl generally be so treated, and the 
 
 tlieir rights and liabilities. The amount to be paid la 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. 
 
 ■ Burr v. Todd, 41 Pa. St. 206. Stewart v. Noble, 1 Green (Iowa), 28. See, 
 also, Dyerv, 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. 
 
 ' Noyes V. Phillips, 60 N. Y. 408. Sweem v. Steele, 5 Iowa, 352. But see 
 Spruill V. Davenport, 5 Ired. L. (N. C.) 145. If the action be debt instead of 
 covenant the plaintiff's 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 S500 should be treated as liquidated 
 damages, and the purchaser was permitted to recover that amount. 
 
 ' Genner v. Hammond, 36 Wis. 277. 
 
 * Carpenter v . Lockhart, 1 Ind. 434. 
 
MEASURE OF DAMAGES FOR INABILITY TO CONVEY A GOOD TITLE. 231 
 
 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 otlier 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 Gobble V. Linden, 76 111. 157. See, also, 2 Greenl. Ev. §§ 358, 259. 
 
CHAPTER XI. 
 
 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 conceailing 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 gives 
 the purchaser the right to hold the vendor liable for defects of title, 
 though the contract has been executed by the acceptance of a con- 
 veyance without covenants for title ;■' (2) it entitles the purchaser to 
 the rescission of an executed contract of sale ; ' (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 ; ^ (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 ; ^ (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 convay- 
 ance was with or without covenants for title,^ and, if with covenants, 
 whether they have or have not been broken ; " (6) it absolves the 
 
 ' 1 Sugd. Vend. 7, 247. 
 
 «2Sugd. Vend. 553. 
 
 'Young V. Harris, 2 Ala. 108; Garner v. Leverett, 32 Ala. 413. Kiefer v. 
 Rogers, 19 Minn. 88. 
 
 *Rawle Govt. ch. 9; 1 Sugd. Vend. 358. 
 
 ' 2 Sugd. Vend. 558; Rawle Covt. § 822. Diggs v. Kirby, 40 Ark. 420. McDon- 
 ald V. Beall, 55 Ga. 288. H.aight 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 VENDOE FOK DECEIT. 233 
 
 purchaser from his obligation to tender the purchase money and 
 demand a conveyance as a condition precedent to an action against 
 the vendor ; ^ and (7) it deprives the vendor of the right to cure 
 defects or recover incumbrances, and to require the purchaser to take 
 the perfected title.^ 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 ; ^ 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 assumjpsit 
 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. Tlie 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 liis right to damages, and sue to recover 
 so much of the purchase money as he may have paid.^ 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." He cannot, if his action be for breach of covenant, increase 
 his damages by showing fraud on the part of the vendor.'' It is true 
 that the action of covenant sounds in damages, but, as has been 
 
 cannot tie 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 into 
 which the misrepresentation of the seller has brought him. '' Whitlock v. Den- 
 linger, 59 111. 96. 
 
 ' Thomas v. Coultas, 76 111. 493. 
 
 ■^ Green v. Chandler, 25 Tex. 148. 
 
 ^Krumm v. Beach, 96 N. Y. 398. 
 
 ^ 1 Sugd. Vend. (8th Am. ed.) 376. 
 
 "iPearsoU v. Chapin, 44 Pa. St. 9. 
 
 « 3 BI. Com. 166; 1 Sugd. Vend. 236; Kerr on Primd (Bump's ed.), p. 324, 
 Carvill v. Jacks, 43 Ark. 439. 
 
 ' Rawle Govt. § 159. 
 30 
 
234 MAEKETABLE TITLE TO REAL ESTATE. 
 
 already seen, tlie purchaser's recovery is limited to tlie considera- 
 tion money and costs of eviction.^ 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.^ The purchaser does not waive 
 his right to recover damages, in a case of fraud, l:iy paying the pur- 
 chase money.^ He waives his right to rescind the contract by 
 remaining in jjossession and paying the purchase money after dis- 
 covering the fraud/ 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 tlirough the vendor's fraud.^ 
 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 can- 
 not operate him an injury,* as where the vendor had previously 
 eonvej^ed the premises to a stranger, and the conveyance failed to 
 take effect as against the purchaser, for want of timely acknowledg- 
 ment and registry.' Xor where the vendor fraudulently acquires 
 
 • Ante, p. 309, and post, § 164. 
 
 '^Parham v. Randolph, 4 How. (Miss.) 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, 88 Ala. 359; 81 Am. Dec. 56. Clark v. Baird, 5 Seld. (N. Y.) 183. See, 
 also, Rawle Govts. (5th ed.) § 167; Kerr on Fraud (Am. ed.), 326. 
 
 3 White V. Sutherland, 64111. 181. 
 
 * Strong v. Strong, 102 N. Y. 69; 5 N. E. Rep. 799; Schiffer v. Dietz, 83 N. Y. 
 300. 
 
 ' 3 Kent Com. 480. Owens v. Rector, 44 Mo. 389. Smyth v. ilerc. Tr. Co., 
 18 Fed. Rep. 486. 
 
 'Crittenden v. Craig, 3 Bibb (Ky.), 474. WuesthofE v. Seymour, 32 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 substantially the same. 
 The same principle was declared in Morrison v. Lods, 39 Cal. 38, but was disap- 
 proved in Kelly v. R. Co., 74 Cal. 557. 
 
 ' 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 
 same land to a stranger, does not place a cloud on the title of the grantee, nor 
 
ACTION AGAINST VENDOR FOE DECEIT. 235 
 
 the title, if it appear that the person defrauded made no objection, 
 after reasonable opportunity and full knowledge of the facts.' Nor 
 where an incumbrance, not disclosed by the vendor, is released by 
 the incumbrancer, and the purchaser suffers no actual injury.^ Nor 
 where an incumbrance, fraudulently concealed, has been removed 
 by the vendor before decree in a suit by the jjurchaser for rescis- 
 sion.^ l^or, generally, in any case in which the purchaser is not 
 damnihed by the alleged fraud.* 
 
 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.'^ 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." Where 
 a husband sold the lands of his wife, and fraudulently misrepre- 
 sented the title, and the wife received the benefit of the sale, it was 
 held that she was bound by his acts and liable in damages, though 
 the contract was made in the name of the husband, and without her 
 
 furnish a ground of objection to the title by the vendee. Goodkind v. Bartlett, 
 153 111. 419; 38 IT. B. Rep. 1045. 
 
 '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. 238. 
 
 ^ 1 Sugd. Vend. (8th Am. ed.) 9. Evans v. Bicknell, 6 Ves. 174, 193, sembU; 
 Burrowes v. Locke, 10 Ves. 470; Bowles v. Stewart, 1 Sch. & Lef. 227. Gill v. 
 Corbin, 4 J. .1. 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. 
 548, 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 set up the 
 agent's fraud, by way of counterclaim for damages, as a defense to a foreclosure 
 proceeding. It may be doubted whether the principal could be held liable for 
 his agent's fraud in an action for damages, unless the fraud was authorized by- 
 him. New Brunswick R. Co. v. Conybeare, 9 H, L. Cas. 1. 
 
236 MARKETABLE TITLE TO EEAL ESTATE. 
 
 knowledge.' An agent fraudulently misrepresenting the title may, 
 of course, be held personally liable for damages.^ A trustee who 
 makes false representations as to incumbrances on the property sold 
 by him, will be personally liable to the purchaser.^ 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.* 
 
 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 ; ^ 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 
 ihe 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 as embodying the principal features of the decisions as to what 
 
 ' Krumm v. Beach, 96 N. Y. 398. 
 
 'Norris v. Kipp, (Iowa) 38 N. W. Rep. 152. 
 
 n Sugd. Vend. (8th Am. ed.) 12. 
 
 *24 Vict. chap. 96, § 28. Pub. Stat. Mass. 1882, p. 1147, Geu. Stat. Minn. 
 1881, p. 539. 
 
 ' Sugd. Vend. 248, 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. 
 
 «Shanlw v. Whitney, 66 Vt. 405. 
 
ACTION AGAINST VENDOK FOE DECEIT. 237 
 
 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 matei'ial 
 to the validity of the title, lying peculiarly within his own knowl- 
 edge, and which it is his duty to disclose.* It is as much a fraud to 
 
 ' Story Eq. § 307; Sugd. Vend. 371; Siigd. Law of Prop., etc., 653. Early v. 
 Garrett, 9 Barn. & Ores. 928. Laidlaw v. Organ, 3Wh. (U. S.) 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 6a. 
 434. Young v. Bumpass, 1 Freem. Ch. (Miss.) 241. Roseraan 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, 375. This is the mppressio 
 iieri of the text writers, and is substantially the rule established by the leading 
 case of Edwards v. McLeay, (^oop. 308, Sir Wm. Gkant 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 means 
 of discovering, he is guilty of fraud, Sugd. Vend. 246. In the case of Brown 
 V. Manning, 3 Minn. 35; 74 Am. Dec. 736, it was held that 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 Max- 
 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.) 372. So, also, 
 where he alters the abstract of title so as to conceal an incumbrance on the land. 
 Knowlton v. Amy, 47 Mich. 204. The fact that the seller fails to deny, in conver- 
 sation with the purchaser, the charge that he has concealed an incumbrance oa 
 the property, is not sufficient evidence of fraud on his part. Halls v. Thompson, 
 1 8m. & 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- 
 
238 MAEKETABLE TITLE TO EEAL ESTATE. 
 
 sujjpress the truth as it is to utter a falsehood.' 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,^ 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 cer- 
 tain 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, tliough they might be discovered by an examination of the 
 records.' On the other hand, it has been held that the vendor is 
 under no obligation to disclose the existence of unopened streets and 
 such like easements affecting the premises sold, when the facts 
 respecting them appear from the plats and records in the pub- 
 lic ofiices, and he has reason to believe that the purchaser has 
 equal knowledge with himself upon the subject.* As a gen- 
 eral rule it may be said that the vendor is bound to disclose 
 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 jjur autre vie, and, at the time of the con- 
 tract between the vendor and purchaser, the cestui que vie is dead, 
 or in any case in which the vendor's title is liable to be defeated 
 upon the happening of a particular event. In all such cases the 
 vendor is guilty of fraud if he conceals from the purchaser a fact 
 which defeats or lessens the value of his title.' It has been said that 
 
 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. MuUins v. Jones, 1 Head (Tenn.), 517. It is fraud in an 
 executor to sell land belonging to the estate, if the will confers no authority 
 for that purpose. Woods v. North, 6 Humph, (Tenn.) 308; 44 Am. Dec. 312. 
 
 ' Lockridge v. Foster, 4 Scam. (Ill) 569. 
 
 "^ Bean v. Herrick, 12 Me. 263; 38 Am. Dec. 176. 
 
 'Babcock v. Case, 61 Pa. St. 427; 100 Am. Dec. 654. Moreland v. Atchison, 19 
 Tex. 803, 311. 
 
 ^ Wagner v. Perry, 47 Hun (N. Y.), 516. 
 
 '1 Sugd. Vend. (8th Am. ed.) 9. Edwards v. McLeay, Coop. 312. 
 
ACTION AGAINST VENDOE FOR DECEIT. 239 
 
 if the purchaser accepts the estate subject to all faults, and the 
 vendor knows of a latent defect which tiie purchaser could not dis- 
 cover, there is a question as to whether or not he is bound to dis- 
 close 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.' It seems scarcely fair to apply to a case of 
 alleged fraud with respect to the title the rule which prevails in a 
 case of fraudulent representations as to the quality of the estate, 
 namely, tliat the vendor is not bound to disclose defects which lie 
 open to the observation of the purchaser. It is true that all defects 
 of title which would appear upon a thorough examination of the 
 title may be said to be, in a certain sense, open to the observation of 
 the purchaser. But it is well known that an examination of the title 
 is a serious matter, involving 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 professional assistance and much expense. Whether tlie 
 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 dis- 
 close to his vendee the fact that such indemnity had been required 
 and given.'^ This case, however, scarcely goes the length of decid- 
 ing that the vendor is under no obligation to disclose facts which 
 render the title merely doubtful, and not absolutely bad. 
 
 > 1 Sugd. Vend. (8th Am. ed.) 2, 9. Jones v. Keen, 2 Moo. & R. 348. Ward v. 
 "Wiman, 17 Wend. (N. Y.) 193, a case in which the land supposed to have been 
 sold did not exist. 
 
 ^ Tarrell v. Lloyd, 69 Pa. St. 239, 248. 
 
240 MAEZETABLE TITLE TO EEAL 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.^ It is a sufficient proof of fraud, 
 as a general rule, to show that the vendor's representatioxis are 
 false, and that he had knowledge of facts contrary to his representa- 
 tions.^ 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.^ 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.'' 
 
 § 104. Defects which appear of record. The vendor is not 
 necessarily guilty of fraud in failing to call the attention of the pur- 
 
 '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. Pome, 7 Blackf. 
 (Ind.) 564. If the vendor 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 had. Barnes v. Union Pac. R. Co., 54 Fed. 
 Rep. 87; 12 V. S. App. 1. 
 
 ' 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 Walkbk, 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 
 position 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 representa- 
 tions 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 respec- 
 tively rely upon their own judgment, they must have been presumed 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, p. 237, n. 
 
ACTION AGAINST VENDOR FOB DECEIT. 241 
 
 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.^ This is analogous to the rule that the vendor 
 need not call the attention of the purchaser to defects in the quality 
 of the estate which are fully open to his observation. But the 
 vendor will be gnilty of fraud if he induce the piirchaser to forego 
 an examination of the title in order that his attention may not be 
 
 ' 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, is avrare 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 wouM seem better founded in reason, though it has not passed with- 
 out attack. Cullum v. Branch Bank, 4 Ala. Burwell v. Jackson, 5Seld. (N. Y.) 
 545. Keifer v. Rogers, 19 Minn. 33. Pryse v. McGuire, 81 Ky. 608. " It 
 would be the grossest in j ustice to infer fraud upon the mere silence of a vendor 
 as to the existence of an incumbrance where the abstract of title is suflScient to 
 put the purchaser on inquiry." Steele v. Kinkle, 3 Ala. 353. The case of 
 GrifiQth 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 nierged in 
 the conveyance. It is not easy to reconcile this decision with the rule Ithat the 
 contract will be vitiated if the vendor make definite statements for the piirpose of 
 preventing inquiries by the purchaser which would disclose the fraud. In Tallman 
 V. Green, 3 Sandf . (N. Y.) 437, 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. S. 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. 
 31 
 
242 MAEKETABLE TITLE TO EEAL ESTATE. 
 
 brought to such defects ; * 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.^ 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;' 
 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 Veud. 844. Ricliardson v. Boright, 9 Vt. 368. If the purchaser 
 refrains from examining the title hy 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, 842, semble. 
 
 'Babcook v. Case, 61 Pa. St. 430; 100 Am. Deo. 454. Hunt- v. Moore, 2 Pa. 
 St. 107, where the vendor was an executor and man of aflEairs, 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, 89 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 ia 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 incumbrance 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 ia beUeved 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. 
 
 sBurwell v. Jackson, 5 Seld. (N. Y.) 535. In Crawford v. Keebler, 5 Lea 
 (Tenu.), 547, where the vendor failed to inform the purchaser of a suit to enforce 
 
ACTION AGAINST VENDOR FOR DECEIT. 243 
 
 title, it is no more than fair to give to tlie silence of the vendor 
 under such circumstances the effect of an express representation 
 that the title is unimpeacliable. 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.' 
 
 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 incumbrance, he 
 fails to disclose it,' 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 priov 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, 33 Ala. 427. Crutchfleld v. Danilly, 16 Ga. 432. 
 
 1 Hammers v. Hanrick, 69 Tex. 413 ; 7 S. W. Rep. 345. 
 
 ' 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 
 sufHoiency of his title, unless the agreement to make "a good and sufficient con- 
 veyance " could be considered such. In Prout v. Roberts, 33 Ala. 437, the rule was 
 thus broadly stated by Stone, J : "A vendor who conceals from his vendee a 
 known and material defect in or incumbrance on his title, and thereby induces 
 him to purchase, is guilty of a fraud for which the vendee may claim a rescission 
 of the contract," citing Cullum v. Br. Bank, supra, Harris v. Carter, 3 Stew. 
 (Ala.) 333; 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, 25 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 
 
244 MARKETABLE TITLE TO REAL ESTATE. 
 
 and lastly, cases 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 liimself by an examination of the records.^ Both 
 upon principle and authority it would seem that the second class of 
 cases establishs tlie 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 than 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 
 
 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 he 
 had used due diligence and caution in examining the public records. Pryse v. 
 McGuire, 81 Ky. 608; Young v. Hopkins, 6 Mon. (Ky.) 33; Campbell v. Whit- 
 tingham, 5 J. J. Marsh. (Ky.) 96; 30 Am. Dec. 241. Kiefer v. Rogers, 19 Minn. 
 32. Topp V. White, 13 Heisk. (Tenn.) 165; Napier v. Elam, 6 Yerg. (Tenn.) 108; 
 Ingram v. Morgan, 4 Humph. (Tenn.) 66; 40 Am. Dec. 636. The vendor is 
 estopped from asserting that the purchaser might have asertained the truth by 
 examining the public records. Wilson v. Higbee, 63 Fed. Rep. 723. Contra, 
 Williams v. Thomas, 7 Kulp. (Pa. Com. PI.) 371. 
 
 ' 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 recoi'd showed no defects would, of course, be such an 
 attempt. 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 
 attempted. 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 held 
 that the purchaser is not guilty of fraud in failing to state facts affecting 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 authoiity for denying relief to a purchaser who might have discovered 
 the vendor's fraud (not mistake) by examining the title, there being obviously «■ 
 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. 
 
ACTION AGAINST VENDOR FOE DECEIT. 245 
 
 have been discovered and avoided.' If the rights of a stranger 
 should be impaired bj 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.2 
 
 It has been held that a purchaser is not guilty of laches in relying 
 upon innocent misrepresentations of the vendor as to the title, and 
 that as a general rule, evidence which is sufficient to establisii inno- 
 cence of intentional misrepresentation on the part of the vendor 
 will relieve the purchaser of the imputation of laches in failing to 
 
 ' "No man can complain that another has relied too implicitly on the truth of 
 ■what he himself stated." Kerr on Fraud, 80. Brown v. Rice, 36 Grat. (Va.) 473. 
 "When once it is established that there has been any fraudulent misrepresenta- 
 tions or willful concealment by which a person has been induced to enter into a 
 contract, it is no answer to his claim to be relieved from it to tell him that he might 
 have known the truth by proper inquiry. He has a right to retort upon his 
 objector, 'You, at least, who have stated what is untrue, or have concealed the 
 truth for the purpose of drawing me into a contract, cannot accuse me of want 
 of caution, because I relied implicitly on your fairness and honesty.'" Language 
 of Lord 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. B. 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. 
 
 Tarham v. Randolph, 4 How. (Miss.) 451; 35 Am. Dec. 403. Hunt v. Moore, 
 3 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 vender, 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. 
 
246 MAEKETABLE TITLE TO EEAL ESTATE. 
 
 examine the title.^ The Enghsh 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 he collected 
 from the abstract, the purchaser will be entitled to have the contract 
 rescinded.^ The same rule would apply in America, it is appre- 
 hended, 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 dis- 
 closed 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 registry 
 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 submit them to 
 the inspection of the purchaser, or furnish the purchaser 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 commu- 
 nities, and the purchaser contents himself 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 use to a disposition on 
 the part of the purchaser in many cases to rely upon lay opinions as 
 
 The doctrine of constructive notice from these sources is only applied for the 
 protection of third persons against the claims of subsequent purchasers. Champ- 
 lin V. Laytin, 6 Paige Ch. (N. Y.) 189; 31 Am, Dec. 383. 
 
 ' Baptiste v. Peters, 51 Ala. 158. 
 
 '1 Sugd. Vend. (8th Am. ed.) 375 (246). 
 
 ^Bryant v. Boothe, 80 Ala. 311; 68 Am. Dec. 117. 
 
ACTION AGAINST VENDOR FOE DECEIT. 247 
 
 to the title, and to accept without question the vendor's representa- 
 tion that his title is good. 
 
 §105. Existence of fraudulent intent. Eepresentations bythe 
 vendor, to be fraudulent, must have been, iirst, untrue; and. 
 secondly, the vendor must have known them to be untrue, or have 
 had no reason to believe tliem true ; and the contract must have 
 been entered into in consequence of such fraudulent representations 
 in order to entitle the purchaser to relief.^ He must have relied 
 upon such representations,'* and the representations themselves must 
 have been in respect to some material thing unknown to liim.^ But 
 if a statement be in fact false, and be uttered for a fraudulent pur- 
 pose, 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 beheved it to be true.'' 
 
 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.^ It has been held, however, that a false 
 
 ' Taylor v. Leith, 26 Ohio St. 428. Fraud on the part of the vendor with respect 
 to the title cannot exist, unless there be an intent to deceive. Fox v. Haughton, 
 85 N. C. 168. This was the rule, with the exception of the qualification of the 
 second clause, declared by Lord Beougham in the great case of Small v. Atwood, 
 6 CI. & Fin. 531. It is true the alleged fraud in that case consisted of certain rep- 
 resentations 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. 
 
 ' Bond V. Ramsey, 89 111. 29, Luckie v. MoGlasson, 22 Tex. 282. 
 
 s Holland v. Anderson, 38 Mo. 55. 
 
 ■•Bethell v. Bethell, 92 Ind. 318; Brooks v. Riding, 46 Iud.l5; Krewson v. 
 Cloud, 45 lud. 273; Booher v. Goldsborough, 44 Ind. 490; Frenzel v. Miller, 37 
 Lid. 1; 10 Am. Rep. 62. 
 
 'Rawie Govt. (5th ed.) 541 n., and cases cited, few of which, however, involved 
 any question of fraudulent representations of the vendor as to his title. See ante, 
 p. 240, as to the effect of statements by the vendor which he did not know to be 
 true. 
 
248 MARKETABLE TITLE TO EEAL ESTATE. 
 
 representation founded on a mistake resulting from gross negligence 
 is a fraud/ 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.^ It is to be observed that the cases which 
 decide that a vendor is not necessarily 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 innocently made, if injury follows, gives the pur- 
 chaser a right to compensation.^ 
 
 § 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 relations 
 exist between them, do not constitute fraud on the part of the 
 vendor.* A purchaser has no right to rely on the statement of the 
 vendor that his title is good, 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.^ 
 
 ' Smith V. Richards, 18 Pet. (U. S.) 38. 
 
 » Kiefer v. Rogers, 19 Minn. 33. 
 
 n Sugd. Vend. (14th ed.) 28; Bigelow on Fraud, 415. Gunby v. Sluter, 44 
 Md. 337. Shackelford v. Hundly, 1 A. K. Marsh. (Ky.) 495; 10 Am. Dec. 753. 
 Watsou V. Baker, 71 Tex. 739; 9 S. W. Rep. 867. 
 
 " Hume V. Pocock, 1 L. R., Ch. App. 379. Smith v. Richards, 13 Pet. (U. S.) 26, 
 Maney v. Porter, 3 Humj*. (Tenn.) 309. Ghisscock v. Minor, 11 Mo. 655. 
 Conwell V. ClifCord, 45 Ind. 395. Bond v. Ramsey, 89 111. 29. Where the pur- 
 chaser 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 declara- 
 tion knowing that he had only a tax title, he was giiilty of fraud. Updike v. 
 Abel, 60 Barb. (N Y.) 15. In a case of conflicting claims to property in which 
 one claimant employed counsel to investigate his title, and offered as a com- 
 promise 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. 893. 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 tlie 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 adverse claim against the property cannot be maintained, is, of course, a 
 statement of opinion only. Jasper v. Hamilton, 3 Dana (Ky.), 284. But to state 
 
ACTION AGAINST VENDOE FOE DECEIT. 249 
 
 It has been held that statements of what is the law bearing upon 
 the suiRciency of the title, are to be treated as statements of opinion 
 only, and even though fraudulently made, afEord the purchaser no 
 grounds for relief ; all persons being presumed to know the law.* 
 It is easy to see, however, that the universal application of such a 
 rule M^ould 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 respec- 
 tive positions as to give the vendor an undue advantage; 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.' 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 falsehood, would, 
 it is apprehended, entitle the purchaser to relief. 
 
 ' Pish 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 falsehood of 
 such a representation can be tested by ordinary vigilance and attention. It is an 
 opinion in regard to the law and is always understood as such." This case was 
 a suit by the vendor to rescind the contract on account of the purchaser's fraud, 
 but it is apprehended that the principle declared would be fully as applicable to 
 a case of representation affecting the title. See, also, Upton v. Tribilcock, 91 
 U. S. 50; approving Fish v. Cleland, supra, and citing further Star v. Bennett, 
 5 Hill (N. Y.), 303; Lewis v. Jones, 4 B. & C. 506; Rashall v. Ford, L. R., 2 
 Eq. 750, to the general proposition that a statement of what the law is by any 
 person, is a statement of opinion only. 
 
 2 Glasscock v. Minor, 71 Mo. 655. In Jasper v. Hamilton, 3 Dana (Ky.), 284, 
 the court said: " Wo 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/acis in relation 
 to his title are fairly and fully disclosed, the vendee is furnished with the 
 means to form his own opinion or to obtain the opinion of others, and if he 
 32 
 
250 MARKETABLE TITLE TO REAL ESTATE. 
 
 knows of a paramount title outstanding in a tliird person.* If the 
 vendor states material facts as of Lis own knowledge and not 
 as a mere matter of opinion, but of which he has no knowledge 
 whatever, he is guilty of fraud.^ 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 bis 
 assertions.^ 
 
 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,* as, where the vendor falsely states the amount of 
 liens on his property.' This rule, carried to its furthest extent, must 
 neutralize those decisions which hold that the purchaser is not 
 entitled to relief where he has the "means of knowing," or "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." 
 
 ' Spence v. Durein, 3 Ala. 251. 
 
 ' Kerr on Fraud (Bump), S3, and cases cited; Rawle Govt. § 322. Adams v. 
 Jarvis, 4 Biug. 66, Best, C. J., saying: " He who aifirms either V7hat he does 
 not know to bo true, or knows to be false, to another's prejudice and Lis 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 8m. & M. (Miss.) 485; Rimer v. Dugan, 39 Jliss. 
 477; 77 Am. Deo. 687. 
 
 ^ Ante, p. 247 ; Kawle Govts. (5th ed.)§ 232; Kerr on Fi-aud 19, and cases cited. 
 
 " 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. Goultas, 76 111. 428. Kenny v. Hoffman, 31 Va. 442. Brown v. 
 Herrick, 99 Pa. St. 330. 
 
ACTION AGAINST VENDOR FOE DECEIT. 251 
 
 purchaser, the only "means of knowing" the fraud of the vendor.* 
 There can be, of course, no fraud in an innocent misrepresentation 
 by mistake, thougli 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.^ In equity 
 the contract may always be rescinded if there be a mutual mistake 
 as to the title.' 
 
 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 v^ithout 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.^ 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.* The purchaser must also aver that he relied 
 on and was deceived by the vendor's fraudulent representation.' If 
 facts showing fraud are alleged it is not necessary to allege fraud in 
 express terms ; the law implies the fraudulent intent.* 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 
 
 ' Ante, p. 241. 
 
 'Munroe v. Pritchett, 16 Ala. 787; 50 Am. Dec. 203. 
 
 ' 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. 
 
 < Bethell v. Bethell, 92 Ind. 318. 
 
 '' Denston v. Morris, 2 Edw. Ch. (N. Y.) 37. 
 
 'Marsh v. Sheriff, (Md.) 14 Atl. Rep. 664. 
 
 'Luckie v. McGlasson, 22 Tex. 282. 
 
 «Prysev. McGuire, 81 Ky. 611. Lanier v. Hill, 25 Ala. 559. Josselyn v. 
 Edwards, 57 Ind. 212. 
 
252 MARKETABLE TITLE TO EEAL 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.^ It has 
 been held that the plaintifE 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 upoij which he 
 might have obtained information from other sources, such as the 
 public records.^ 
 
 The burden is on the vendee to prove the fraud which he alleges.' 
 Fraud is never presumed, though of course & prima facie case of 
 fraud may be established, that is, a state of facts may be shown 
 which, unexplained, will be held to amount to fraud.^ The mere 
 existence of defects in the title is not sufficient, however, to raise a 
 presumption of fraud on the part of the vendor.^ 
 
 ' Saund. PI. 537. Munroe v. Pritchett, 16 Ala. 787; 50 Am. Dec. 203. Britt v. 
 Marl-i, (Oreg.) 25 Pao. Rep. 636; Rolfes v. Russell, 5 Oreg. 400; Denning v, 
 Cresson, 6 Oreg. 241. 
 
 'Bianconi v. Smith, (Ariz.) 28 Pao. 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. Rep.) 371. 
 
 " Green v. Chandler, 35 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. 
 OP THE COVENANT FOR SEISIN. 
 
 FORM AND EFFECT. § 108. 
 
 "WHAT CONSTITUTES A BREACH, g 109. 
 
 ASSIGNABILITY OF THIS COVENANT. 
 
 In general. § 110. 
 
 Covenant of seisin does not run with the land. § 111. 
 
 Contrary rule. Doctrine of continuing breach.. §113 
 
 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 hy 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.^ 
 
 In every case in which the grantee is entitled to require a con- 
 veyance with full covenants for title, he should, under no circum- 
 stances, omit the insertion of a covenant for seisin. The principal 
 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 
 
 ' Rawle Govts. (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 in equity. Hagler v. Simpson, 
 1 Busbee (N. Car.), 384. 
 
 ' Post, § 109, this chapter. 
 
254 MAEKETABLB TITLE TO EEAL ESTATE. 
 
 which tlie rights of the adverse claimant have never been asserted, 
 and in which there has been no eviction of the grantee from the 
 premises.' 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,^ 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." ^ Hence, it 
 follows that there need be no eviction or distui'bance 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.* 
 
 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 
 
 ' Wilder v. Ireland, 8 Jones (N. C.) L. 90, where the action was for breach 
 of the covenant for quiet enjoj'ment, 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. 263; 13 Am. Dec. 57. Cathn 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 bad 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. 
 
 3 Piatt Govts. 306; Howell v. Richards, 11 East, 641, language of Lord Ellen- 
 borough. Mills V. Cathn, 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 FOE SEISIN. 255 
 
 actual though tortious seisin,* provided it be under claim of title.^ 
 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.* 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,'^ 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 
 he 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 
 
 "Marstou v. Hobbs, 3 Mass. 433; 8 Am. Dec. 61; Bickford v. Page, 2 Mass. 
 455; Twambly v. Henley, 4 Mass. 443; Bearce v. Jackson, 4 Mass. 410; Slater v. 
 Rawson, 6 Met. (Mass.) 444 ; Raymond v. Raymond, 10 Gush. (Mass.) 140; Fol- 
 lett v. Grantj 5 Allen (Mass.), 174. Griffin v. Fairbrother, 1 Fairf. (Me) 95; 
 Boothley v. Hathaway, 20 Me. 251 ; Baxter v. Bradbury, 20 Me. 360 ; 37 Am. 
 Dec. 49; Wilson v. Widenham, 51 Me. 567. Watts v. Parker, 37 Ind. 338. Scott 
 V. Twiss, 4 Neb. 138. Backus v. McCoy, 8 Ohio, 311; 17 Am. Dec. 585; Wetzel 
 V. Richcreek, (Ohio) 40 N. E. Rep. 1004. 
 
 'Wheeler v. Hatch, 3 Fairf. (Me.) 389. The grantor was in possession in this 
 case, but did not claim title, and it was held that the covenant of seisin was 
 broken. 
 
 3 See Parker v. Brown, supra, p. 254, and cases cited in same note. Also, Abbott 
 V. Allen, 14 Johns. (]Sr.Y.)353; 7 Am. Dec. 554; Fowler v. Poling, 2 Barb. (N.Y.) 
 303; Hamilton v. Wilson, 4 Johns. (N.Y.) 73; 4 Am. Dec. 253. Purniss v. 
 ■Williams, 11 111. 339; Brady v. Spurck, 37 111. 481; Baker v. Hunt, 40 111. 364; 
 King V. Gilson, 33 111. 348; 83 Am. Dec. 369; Christy v. Ogle, 33 111. 295; Prazer 
 V. Supervisors, 74 111. 391. Kincaid v. Brittain, 5 Sneed (Tenn.), 119. Downer 
 V. Smith, 38 Vt. 464; 76 Am. Dec. 148. Brandt v. Poster, 5 Clarke (lo.), 395; 
 Zent V, Picken, 54 Iowa, 535. Lockwood v. Sturtevant, 6 Conn. 385; Davis v. 
 Lyman, 6 Conn. 249, and notes. Lot v. Thom.as, 1 Penn. (N. J. L.) 397; 2 Am. 
 Dec. 354. Pollard v. Dwight, 4 Cranch (U. S. S. C), 421. Dale v. Shively, 
 8 Kans. 376. Mercantile Trust Co. v. So. Park Residence Co., 94 Ky. 371. 
 Clapp V. Herdmann, 35 111. App. 509. 
 
 •• Cases cited, note 1 above. 
 
 5 Williams v. Hogan, Meigs (Tenn.), 189. 
 
256 MARKETABLE TITLE TO KEAL ESTATE. 
 
 title. In those States, however, in which the rule in question has 
 become firmly established and recognized as a rule of property, the 
 reasons which have led thereto, and even the fact that the rule itself 
 flows from an arbitrary construction of the covenant, are compara- 
 tively unimportant, so long as that rule remains stable and fixed, 
 and with reference to which the parties may safely contract. But 
 in those States, if any, in which the question has not been settled by 
 judicial decision or statutory enactment, it is apprehended that the 
 courts will be slow to give to tlie covenant of seisin the interpeta- 
 tion 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 inheri- 
 tance" was not satisfied by an actual seisin, the grantor in fact 
 having no title.' 
 
 Covenants of seisin are by statute in some of the States implied 
 from the operative words " grant, bargain and sell " in a conveyance.^ 
 But in other States no such implication is made,' and none existed 
 at common law. The question whether a deed made in another 
 State contains a covenant of seisin nmst be determined by the law 
 of that State.* 
 
 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.' 
 
 ' 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. 338. 
 
 » Memmert v, McKeen, 112 Pa. St. 81.5; so in Missouri Schnelle Lumber Co. v. 
 Barlow, 34 Fed. Rep. 858. 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." Poote v. Clark, 103 
 Mo. 394; 14 S. W. Rep. 98. 
 
 'Frost V. Raymond, 3 Caines (N.Y.), 188; 2 Am. Dec. 328. Aiken v. Franklin, 
 (Minn.) 43 N. W. Rep. 839. 
 
 ■"Jackson v. Green, 112 Ind. 341; 14 N. E. Rep. 89. 
 
 * Com. Dig. Admr. B. 13; Butler N. P. 158. Lucy v. Levington, 1 Vent. 175; 
 S. C, 2 Lev. 26. Hamilton v. V"i="" ^ '"i'-° /tvt v \ r^o. * a_ r^„. 01.0 
 
OF THE COVENANT FOE SEISIN. 257 
 
 But if no actual damage was sustained by the ancestor, thougli^he 
 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.' 
 
 § 109. WHAT CONSTITUTES A BBEACH OF THE COVENANT 
 or SEISIN. The covenant of seisin is broken by any lessening of 
 the corpus or physical extent of the property conveyed,^ 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.' 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,* such as the disaffirmance of a conveyance 
 executed during the minority of the grantor f 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 
 Boon as made, if the title be from any cause defeasible f leaving the 
 
 ' 2 Sugd. Vend. 577. Kingdon v. Nottle, 1 M. & S. 355. King v. .Jones, 5 
 Taunt. 418; Orme v. Broughton, 10 Bing. 353. Lowrey v. Tilleny, 31 Minn. 
 500; IC N. W. Eep. 452. 
 
 ^Wilson V. Forbes, 3 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. 
 523. 
 
 ^Frazer v. Supervisors, 74 111. 291. Lockwood v. Sturdevant, 6 Conn. 373. 
 A covenant that the grantor is seised of an unAivideA moiety of an estate is broken 
 if there has been a judicial partition of the premises, though without the knowl- 
 edge of the grantor, and though he conveyed only his share of the land. Morri- 
 son v. McArthur, 43 Me. 567. 
 
 * Pollard V. Dwight, 4 Cranch (U. S. S. C), 431. Van Nostrand v. Wright, 
 Lalor's Supp. (N. Y.) 360 ; 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. 
 
 = Bool V. Mix, 17 Wend. (N. Y.) 133; 31 Am. Dec. 385. 
 
 " Shep. Touchstone, 170; 3 Sugd. Vend. (8th Am. ed.) 386 (610); 2 Washb. 
 Real Prop. (4th ed.) 457 (657) ; 4 Kent Com. (11th ed.) 555 (471) ; Rawle Govts. 
 (5th ed.) § 58. See, generally, also, cases cited supra this chapter and "Cove- 
 nant against Incumbrances," subd. " What Constitutes Breach." Abbott v. Allen, 
 14 Johns. (N. y.) 353 ; 7 Am. Dec. 554; Adams v. Conover, 87 N. Y. 433; 41 
 Am. Dec. 381. Downer v. Smith, 38 Vt. 464; 76 Am. Dec. 148; Clark v. Con- 
 roe, 38 Vt. 471; Clement v. Bank, 61 Vt. 298; 17 Atl. Rep. 717. Brandt v. Foster, 
 5 CI. (Iowa) 395; Van Wagner v. Van Nostrand, 19 Iowa, 437; Zent v. Picken, 54 
 Iowa, 535. Bottorf v. Smith, 7 Ind. 678. Frazer v. Board of Supervisors, 74 
 
258 MAEKETABLE TITLE TO SEAL ESTATE. 
 
 faft 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 pretensed titles, and declaring all such con- 
 veyances to be champertous, do not affect the validity of the con- 
 veyance as between the grantor and grantee.^ The covenant of 
 seisin is broken if there be no such land in existence as the grantor 
 undertakes to convey.^ 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.' 
 
 111. 382; Brady v. Spurck, 27 111. 481; Christy v. Ogle, 33 111. 295. West v. 
 Stewart, 7 Pa. St. 123. 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. 436; Montgomery v. Reed, 69 Me. 510. Pollard v. Dwiglit, 
 4 Cranch (U. S.), 431. Lot v. Thomas, 1 Penn. (N. J. L.) 397. Davis v. Lyman, 
 6 Conn. 249. 
 
 ' Harvey v. Doe, 33 Ala. 637; Abernathy v. Boazman, 24 Ala. 189; 60 Am. 
 Dec. 459, citing Jackson v. Demont, 9 Johns. (N.Y.) 55; 6 Am. D.ec. 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.) 235. Edwards v. Roys, 18 Vt. 473. 
 Adkins v. Tomlinson, 131 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 possession," 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 demise 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, 3 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 Comst. (N.Y.) 564, where the fixtures consisted of a rail 
 fence placed there by a tenant under an agreement by which he might remove 
 
OF THE COVENANT FOR SEISIN. 259 
 
 Neither a judgment nor a mortgage,' nor a mere incumbrance,' 
 such as an outstanding term of years' nor an easement in the prem- 
 ises,* 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^ or consummate,'^ is an incumbrance 
 within the foregoing rule. Nor is this covenant Ijroken by the 
 existence of a highway over the land granted,' since the freehold 
 still remains in the owner of the soil. Neither is the covenant 
 broken by condemnation proceedings,^ nor by an unlawful intrusion 
 on the land ;' nor by the unlawful removal of fixtures by a tenant 
 after the expiration of his term.'" 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.'' 
 
 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. 
 
 • Reasoner v. Edmundson, 5 Ind. 394. Sedgwick v. Hollenbeck, 7 Johns. (N. 
 Y.) 376; Stanard v. Eldridge, 16 Johns. (N. Y.) 254. The reason of this rule is 
 that the mortgagor is regarded as the real owner, and the mortgagee as having a 
 chattel interest only. Runyan v. Mesereau, 11 Johns. (N. Y.) 538; 6 Am. Dec. 
 393, and cases cited in note. The rule above stated applies, though the prior 
 mortgage be foreclosed and the property lost to the covenantee. Coit v. McRey- 
 nolds, 3 Rob. (N. Y.) 655. 
 
 'Pitzhugh v. Croghan, 3 J. J. Marsh. (Ky.) 439; 19 Am. Dec. 139. 
 
 ' Under a statute providing that a conveyance of lands shall be effectual with- 
 out the attornment of a tenant of the grantor, it was held that the continued 
 occupancy by the tenant after the grant, did not constitute a breach of the cove- 
 nant of seisin, Kellum v. Insurance Co., 101 Ind. 455. See, also, Lindley v. 
 Dakin, 13 Ind. 388. 
 
 ' Blondeau v. Sheridan, 81 Mo. 545. 
 
 » Massie v. Craine, 1 McC. (S. C.) L. 489. 
 
 « Tuite V. Miller, 10 Ohio, 383, 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. 
 
 ■" Boone Real Prop. § 311; Tiedeman Real Prop. § 851; 4 Am. & Eng. Encyc. 
 of L. 479. Whitbeck v. Cook, 15 Johns. (N. Y.) 483; 8 Am. Dec. 278. Vaughn v. 
 Stuzaker, 16 Ind. 338. Moore v. Johnston, 87 Ala. 220; 6 So. Rep. 50. 
 
 8 Smith V. Hughes, 50 Wis. 630; Merser v. Oestrich, 52 Wis. 693. 
 
 ' Smith V. Hughes, 50 Wis. 630. 
 
 "Loughran v. Ross, 45 N. Y. 793. 
 
 "Fitzhugh V. Croghan, 2 J. J. Marsh. (Ky.) 439; 19 Am. Dec. 139, citing 3 
 Saund. 171 c. Morris v. Phelps, 5 Johns. (N. Y.) 53; 4 Am. Dec. 323. Jones v. 
 Warner, 81 111. 343. 
 
260 MARKETABLE TITLE TO EEAL ESTATE. 
 
 Whatever subsequently occurs to defeat the title cannot affect the 
 covenant of seisin.* 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.^ 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 " assignee ; " 
 there is, in strictness, however, no assignments ; the rights of the 
 so-called assignee being cognizable by a court of law, he being per- 
 mitted 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,' though of course he cannot claim those 
 rights except under an instrument sufficient to convey the land.° 
 All covenants for title run with the land until they are broken.* 
 They then become a species of personal property, a chose in action, 
 
 ' 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 u, prior mortgage was foreclosed, 
 whereby the plaintiff lost the property. 
 
 'Bigelow Estoppel, 346. Purness v. Williams, 11 111. 229; Beebe v. Swart 
 wout, 3 Gil. (Ill ) 162. Fitch v. Baldwin, 17 Johns. (N. Y.) 161. Horrigan v. 
 Rice, 39 Minn. 49; 88 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 ho 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." 
 
 ■■ Rawle Govts. (5th ed.) § 282. 
 
 'Beardsley v. Knight, 4 Vt. 471; 33 Am. Dec. 193. 
 
 «Kawle Govts. (5th ed.) § 304. 
 
OF THE COVENANT FOR SEISIN. 261 
 
 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 with the land 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 iiowing 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.^ 
 
 § 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.^ The principal reasons assigned 
 
 'Roberts v. Levy, 3 Abb. Pr. (N. Y.) 311. 
 
 •4 Kent Com. (llth ed.) 471; 2 Sugd. VeuJ. (8th Am. ed.) 240 (577), notes; 
 Rawle Govts. (5th ed.) § 205. Pate v, Mitci^ell, 23 Ark. 590; 79 Am. Deo. 114; 
 Hendricks v. Kesee, 33 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, p. 257. Greenby v. Willcocks, 2 Johns. (N. Y.) 
 1, Livingston, J., dissenting; 3 Am. Dec. 379. 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, p. 366. Other cases in that 
 State following the decision in Greenby 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.) 73; 4 Am. Dec. 253; McCarty v. Leg- 
 gett, 3 Hill (N. Y.), 134; Beddoe v. Wadsworth, 31 Wend. (N. Y.) 120; Mygatt v. 
 Coe, 124 N. Y. 213; 36 N. E. Rep. 611. In other states; Bickford v. Page, 3 Mass. 
 455; Marston v. Hobbs, 2 Mass. 433; 3 Am. Dec. 61, obiter; Slater v. Rawaon, 1 
 Met. (Mass.) 455; Tufts v. Adams, 8 Pick. (Mass.) 549; Whitney v. Dinsmore, 6 
 
262 MARKETABLE TITLE TO EEAL 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.) 138; 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 diificult to reconcile these decisions with those of the same State declaring 
 tliat 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. Sturdevant, 6 Conn. 378; 
 Davis V. Lyman, 6 Conn. 256; Hartford Co. v. Miller, 41 Conn. 113; Gilbert v. 
 Bulkley, 5 Conn. 263; 13 Am, Dec. 57. Prov. Life & Tr. Co. v. Seidel, (Pa. St.) 
 23 Atl. Rep. 561. Kenny v. Norton, 10 Heisk. (Tenn.) 384. Scofflns v. GrandstafE, 
 12 Kans. 467. Pence v. Duval, 9 B. Mon. (Ky.) 48. Smith v. Jefts, 44 N. H. 483. 
 Chapman v. Kimball, 7 Neb. 399; S. C, 11 Neb. 350; Davidson v. Cox, 10 Neb. 
 150; 4 N. W. Rep. 1035. Chapman v. Holmes, 5 Halst. (N. J.) 30; Carter v. 
 Denman, 3 Zab. (N. J."L.) 260; Lot v. Thomas, 3 N. J. L. 397; 3 Am. Dec. 354; 
 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 in 
 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. 1883, p. 673. Randolph v. Kinney, 3 Rand, (Va.) 397. Grist 
 v. Hodges, 3 Dev. (N. C) L. 200. 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 n, covenant of seisin and- that against incumbrances, holding that an 
 assignee is 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.) 353; Garfield v. Williams, 2 Vt. 337; Pierce v. John- 
 son, 4 Vt. 355; Swasey v. Brooks, 30 Vt, 692. Westrope v. Chambers, 51 Tex. 
 178. Pillsbury v. Mitchell, 5 Wis. 31. The rule stated in the text prevailed in 
 Maine prior to the statute in that State providing in express terms that an 
 assignee should have the benefit of the covenant of seisin. Hacker v. Storer, 8 
 Gr. (Me.) 338; Pike v. Galvin, 29 Me. 188. Lewis v. Ridge, Cro. Eliz. 863, and 
 Lucy V. Livington, 2 Lev. 26; 1 Vent. 175; 3 Keble, 831, have been very gen- 
 erally 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 than that a covenant for quiet enjoy- 
 ment ceases to run with the land after it is broken. Govts, for Title, g 205. In 
 Garrison v. Sandford, 12 N. J. L. 361, the court held that a breach of the cove- 
 
OF THE COVENANT FOE SEISIN. 263 
 
 and (2) that the grantor and covenantor having no ritle 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.' 
 
 nants of seisin or against incumtirances did not enure to the benefit of a subse- 
 quent grantee of tlie 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 ijroperty 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 Cush. (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 invahd, 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. 
 
 ' See the cases cited in the last note. See, also. Bender v. Fromberger, 4 Ball. 
 (Pa.) 488; Stewart v. West, 14 Pa. 336. Webber v. Webber, 6 Gr. (Me.) 127. 
 Jones V. Warner, 81 111. 343. McCarty v. Leggett, 3 Hill (N. Y.), 134. Wilson 
 
264 MARKETABLE TITLE TO SEAL 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. ^ They hold 
 
 T. Forbes, 2 Dev. (N. C.) 32. lunes v. Agnew, 1 Ohio, 389. Allen v. Allen, 
 (Minn.) 51 N, W. Rep. 473. 
 
 • Kingdon v. Nottle, 1 Maule & S. 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. Ccm. 473), 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; 8. C, dissenting opinion of 
 Dixon, C. J., 30 Wis. 41, 46. Collier v. Gamble, 10 Mo. 467; Dickson v. Desire, 
 23 Mo. 163, overruling Chauviu v. Wagner, 18 ]\Io. 531 ; Lawless v. Collier, 19 
 Mo. 480; Magwire v. Riggin, 44 Mo. 512; 75 Am. Dec. 131; 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; 3 S. W. Rep. 143. Bacchus v. McCoy, 
 3 Ohio, 311; 17 Am. Dec. 585; Foote v. Burnet, 10 Ohio, 331; 36 Am. Dec. 90; 
 Devore v. Sunderland, 17 Ohio, 53; 49 Am. Dec. 442; Great Western Stock Co. 
 V. Saas, 34 Ohio St. 543. Schofield v. Iowa Homestead Co., 33 Iowa, 317; 7 Am. 
 Rep. 197. This is the leading Iowa case. It contains an able review of author- 
 ities bearing upon the question of the assignability of the covenant of seisin, and 
 has been frequently cited by the courts in other States. Kuadler v. Sharp, 36 
 lo. 232; Boon v. McHenry, 55 lo. 203; 7 N. W. Rep. 503. Martin v. Baker, 5 
 Ind. 393, leading ca.se; 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 posses- 
 sion 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, 53 Vt. 639. McCrady v, Brisbane, 1 Nott & McC. (S. Car.) 104; 9 Am. 
 Dec. 676. Mecklem v. Blake, 22 Wis. 495; 83 Am. Dec. 707. The doctrine of 
 the English courts, and its American adherents, in respect to the assignability of 
 the covenant of seisin, was succinctly 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 
 engagement 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 FOR SEISIN. 265 
 
 that the covenant is not completely broken, iintil 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.' The cases which 
 decide that a covenant of seisin is in the natare 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. 
 
 ' 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. 
 34 
 
266 MARKETABLE TITLE TO KEAL ESTATE. 
 
 rule wliich 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.' Besides, the enforcement of 
 such a rule practically destroys the usefulness of the covenant. For 
 80 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.' The same effect has been given to 
 
 ' 4 Kent Com. 471, the learned author saying that it is to he regretted that 
 the " technical scruple " that a chose in action 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. T. 1876, § 449. Rev. St. Ohio, p. 1034, § 4993. Rev 
 St. Me. 1841, c. 115, § 16. Rev. St. Colo. 1883, p. 173. Rev. St. Ga. 1882, p. 
 672. iSemMe, 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. 845; Rev. St 
 Me. 1883, p. 697. See, also. Rev. St. Colo. p. 172; 8 Lev. Rev. Code Dak. p. 
 917; Hitt. Codes Cal. 1876, p. 743. Code Ga. 1882, p. 672. 
 
OF THE COVENANT FOE SEISIN. 267 
 
 the generally prevalent statutory provision that all actions must be 
 maintained in the name of the real party in interest.' 
 
 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.^ For 
 this purpose a conveyance of the land will be treated as an assign- 
 ment of the covenantee's right of action for a breach of the covenant.' 
 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 
 
 ' Code Civil Proc. N. Y. § 449. Andrew v. Appel, 32 Hun (N. Y.), 433, 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. (N. Y.) 163; Roberts v. 
 Levy, 3 Abb. Pr. (N. S.) 339. 
 
 ' Clark V. Swift, 8 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 an 
 action in the name of the assignor." Peters v. Bowman, 98 U. 8. 59. Collier v. 
 Gamble, 10 Mo. 467. 
 
 ^ Rawle Govt. § 236. ' ' The transfer of the land, the principal thing, should 
 be 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.) 339. 
 
268 MARKETABLE TITLE TO REAL ESTATE. 
 
 subsequent grantor the benefit of the covenant.' 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 l^reach of the cove- 
 nant from the time the covenant was made ; that is when the deed 
 containing the covenant was delivered.^ 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 his grantee has or has not been evicted from the 
 premises. But in those States in which the covenant of seisin is 
 held to run with the land, the statute does not begin to run until 
 actual damage from the breach has been sustained.' 
 
 § 115. Conflict of laws. At common law the covenantee might 
 
 ' Bottorf Y. Smith, 7 Ind. 673; Bethell v. Bethell, 54 Ind. 428; 23 Am. Rep. 
 650; Craig v. Donovan, 63 Ind. 513; McClure v. MoClure, 65 Ind. 485. Dickson 
 v. Desire, 23 Mo. 162, overruling Chauvin v. Wagner, 18 Mo. 531. 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 con- 
 tains an elaborate note upon the law of covenants of title to real estate. In 
 Chambers v. Smith, 23 Mo. 174, it was said: "If there be a total defect of title, 
 and the possession have not gone along with the deed, the covenant is broken as 
 soon as it is entered into, and cannot pass to an assignee upon any subsequent 
 transfer of the supposed riglit of the original grantee. In such case the breach 
 is final and complete; the covenant is broken immediately once for all, and the 
 party recovers all the damages that can ever result from it. If, however, the 
 possession pass, although without right — if an estate in fact though not in law, 
 be transferred by the deed, and the grantee have the enjoyment of the property 
 according to the terms of the sale, the covenant runs with the land, and passes 
 from party to party, until the paramount title results in some damage to the 
 actual possession, and then the right of action upon the covenant rests in the 
 party upon whom the loss falls." 
 
 ' Jenkins v. Hopkins, 9 Pick. (Mass.) 542. Bratton v. Guy, 12 8. Car. 42. 
 
 » White V. Stevens, 13 Mo. App. 240. 
 
OF THE COVENANT FOE SEISIN. 269 
 
 maintain an action at law against the covenantor wherever he found 
 him, all actions dependent upon privity of contract being deemed 
 transitory.! 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 sitm? 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 sitOB.^ 
 
 % 116. MEASURE OF DAMAGES. Upon a breach of the cove- 
 nant of seisin, which results in the loss of the estate to the cove- 
 nantee, the measure of his damages is the value of the estate at the 
 time of the conveyance as fixed by the purchase price agreed 
 upon by the parties,^ with interest thereon for such time as 
 
 ' Chit. PI. 270; Rawle Cov. (5th ed.) § 303. Clarke t. Scudder, 6 Gray (Mass.), 
 132. 
 
 'Worley v. Hineman, (Ind.) 33 N. E. Rep. 260, overruling Fisher v. Parry, 68 
 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 he determined by the law 
 of Indiana." See, also to same effect. Oliver v. Loye. 59 Miss. 330; 21 Am. Law 
 Reg. 600. 
 
 •Bethell v. Bethell, 92 Ind. 318; S. C, 54 Ind. 428; 33 Am. Rep. 650. 
 
 * 4 Kent Com. 475; Rawle Govt. § 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 Gaines (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. 239; Bennet v. 
 Jenkins, 13 Johns. (N. Y.) 50. Bender v. Fromberger, 4 Dall. (Pa.) 443. 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; 
 
270 MARKETABLE TITLE TO EEAL ESTATE. 
 
 the covenantee is liable to the real owner for mesne profits,* 
 together with such necessary costs and expenses as he may have 
 incurred in defending the title.^ 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. 61; Caswell v. Wendell, 4 Mass. 108; Sumner v. Williams, 8 Mass. 
 163, 223; 5 Am. Dec. 83; Bynes v. Kich, 3 Gray (Mass.), 518. Stutbsv. Page, 2 
 Gr. (Me.) 373; Wheeler v. batch, 13 Me. 389; Blanchard v. Hoxie, 84 Me. 376; 
 Montgomery v. Reed, 69 Me. 510. Ela v. Card, 3 N. H. 175; 9 Am. Dec. 46; 
 Parker v. Brown, IS N. H. 176; Nutting v. Herbert, 35 N. H. 120; Willson v. 
 Willson, 25 N. H. 339; 57 Am. Dec. 330. Mitchell v. Hazen, 4 Conn. 495; 
 10 Am. Dec. 169; Stirling v. Peet, 14 Conn. 245. Catlin v. Hurlburt, 3 Vt. 408. 
 Bacchus V. McCoy, 3 Ohio, 211; 17 Am. Dec. 585. Brandt v. Foster, 5 lo. 295. 
 Cox V. Strode, 2 Bibb (Ky.), 275; 5 Am. Dec. 603; Merc. Trust Co. v. So. Park 
 Res. Co., (Ky.) 23 8. W, Rep. 314. Dale v. Shively, 8 Kans. 190; Scott v. Morn- 
 ing, 23 Kans. 253. Furraaa v. Elmore, 2 Nott &McO. (S. C.) 189, n. ; Pearson v. 
 Davis, MoMull. L. (S. C.) 37; Henning v. Withers, 8 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. Wilson v. Forbes, 2 Dev. (N. C.) 30. 
 Overhiser v. jMcCollister, 10 Ind. 44. Frazer v. Supervisors, 74 111. 891. Dp.g- 
 gett V. Reas, 79 Wis. 60; 48 N. W. Rep. 127. It seems, from the case of Nichols 
 V. Walter, 8 Mass. 243, that in a case at nisi prius in New Hampshire the plaintiff 
 was awarded the value of the land at the time of eviction as the measure of his 
 damages for a breach of the covenant of seisin. 
 
 ' Post, § 172. 
 
 ' Post, § 173. 
 
 'Pitcher v. Livingston, 4 Johns. (N. Y.) 7; 4 Am. Dec. 339, where it was said 
 by Van 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 
 Kbnt, 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 ia 
 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 Tilghmak, 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 FOE SEISIN. 271 
 
 The foregoing rules, it is believed, prevail in every State of the 
 Union.^ The true consideration of the conveyance may be shown 
 by parol evidence, and the deed may be contradicted in that respect.^ 
 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.' 
 
 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.^ Accord- 
 ingly, the rule has been established by numerous decisions that the 
 
 the seller make use of fraud, concealment or artifice to mislead the purchaser ia 
 examining the title, the case is different; he will then be answerable for all losses 
 which may occur." 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. 
 
 ' The author has met with but one instance in which a different rule was 
 applied, and that is a nid 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 seidn and good right to convey (not warranty, as 
 stated in Rawle Govt. [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 seidn-, $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. 
 
 'Post, §167. 
 
 2 Smith V. Strong, 14 Pick. (Mass.) 128; Byrnes v. Rich, 3 Gray (Mass.), 
 518. 
 
 "Ante, p. 257. 
 
 5 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. 
 
272 MAEKETABLE TITLE TO EEAL 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.' 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.^ Such an adverse possession amounts -also to a con- 
 structive eviction and operates a breach of a covenant of warranty.* 
 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.* 
 
 If the covenantee sues and recovers nominal damages for breach 
 of the covenant of seisin, the judgment will be no bar to an action 
 
 ' Baxter v. Bradbury, 20 Me. 260; 37 Am. Bee. 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. 138. Nos- 
 ier V. Hunt, 18 lo. 312; Boon v. McHenry, 55 lo. 202; 7 N. W. Rep. 503. Collier 
 V. Gamble, 10 Mo. 467. 472; Bircher v. Watkins, 13 Mo. 521; Cockrell v. Proctor, 
 65 Mo. 41; Holladay v. Menifee, 30 Mo. App. 207. Small v. Reeves, 14 Ind. 
 164; Hacker V. Blake, 17 Ind. 97; Laceyv. Marman, 37 Ind. 168; Hannah v. 
 Shields, 34 Ind. 373; 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. In the early case of Harris v. Newell, 8 Mass. 622, it was held 
 that if the covenantee had been threated with eviction, and if it appear that he 
 must inevitably lose the estate, he may recover the consideration money as dam- 
 ages for breach of the covenant of seisin, and that 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. 
 
 " 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 the 
 covenantor to require the covenantee to accept such title in lieu of damages, see, 
 post, "Estoppel," § 215. 
 
OF THE COVENANT FOE SEISIN. 273 
 
 for breach of the covenant of warranty if he should be afterwards 
 evicted by the person having the better title.' 
 
 In Missouri, a purchaser, who has taken a conveyance with a 
 covenant of seisin, is permitted, upon discovery that the title is bad, 
 to buy in the rights of all adverse claimants, and thus to entitle liira- 
 self to recover substantial damages for the breach oi the covenant 
 to the extent of the amount so paid, with interest, provided it do 
 not exceed the consideration money and interest.^ This rule has 
 been criticised upon the ground that it confounds all distinctions 
 between the covenant of seisin and the covenant of warranty. It 
 is difficult to perceive any inconvenience or injustice that could 
 result from the rule, provided it be restricted to cases in which the 
 adverse title has been hostilely asserted. 
 
 If the breach of the covenant of seisin consist in the want of the 
 entire quantity of estate or interest purported to be conveyed, as if 
 the interest turns out to be a life estate instead of a fee, the cove- 
 nantee cannot practically rescind the contract l)y recovering the 
 entire purchase money as damages ; he must keep the life estate. 
 In other words, the measure of his daarages will be the difference 
 between the consideration money and the value of the life estate.' 
 If it appear that title to a jjart of the land lias failed, the plaintiff 
 will be entitled to nominal damages, tliough tliere l)e no evidence as 
 to the value of such part.' Where he is entitled to substantial dam- 
 ages for a loss of part of the premises, the measure thereof will be 
 sucli part of the whole consideration paid as the value of the part 
 at the time of purchase, to wliich title failed, bears to the whole of 
 the premises.^ 
 
 § 117. BTTK.DEN' OP PROOF. In an action on a covenant of seisin 
 the burden of proof has generally been held to Jie with the defend- 
 ant, the grantor, to show that the title is such as liis covenant 
 
 'Donnell v. Thompson, 10 Me. 170; 35 Am. Dee. 316. Ogden v. Ball, 40 Minn. 
 94; 41 N. W. Rep. 453. 
 
 2 Lawless v. Collier, 19 Mo. 480; Hall v. Bray, 51 Mo. 388; Ward v. AsUbrook, 
 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. 352, 
 259. Post, § 170. 
 
 'Lawless v. Evans, (Tex.) 14 S. W. Rep. 1019. 
 
 > McLennan v. Prentice, (Wis.) 55 N. W. Rep. 764. 
 35 
 
274 MAEKETABLE TITLE TO EBAL ESTATE. 
 
 requires ; ^ but there is a conflict of authority upon the point, some 
 eases 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 
 
 ' Bradshaw's Case, 9 Coke R. 60. Abbott v. Allen, 14 Johns. (N. Y.) 248; 7 
 Am. Dec. 554. Bircher v. "Watkins, 13 Mo. 531; Cockrell v. Proctor, 65 Mo. 41. 
 Beckmann V. Henn, 17 Wis. 412; Eaton v. Lyman, 30 Wis. 41; McClennan v. 
 Prentice, 77 Wis. 124; 45 N. W. Rep. 943. SwafEord v. Whipple, 3 Gr. (Io.)261; 
 54 Am. Dec. 498; Schofield v. Homestead Co., 33 Iowa, 317; 7 Am. Rep. 197; 
 Blackshire v. Homestead Co., 39 Iowa, 624; Barker v. Kuhn, 38 Iowa, 392. 
 Marston v. Hobbs, 2 Mass. 433; 3 Am. Dec. 61. The reason given for the rule 
 thus stated is that the grantor is presumed to have retained the evidences of his 
 title, and, consequently, that the facts constituting a defect in his title must lie 
 peculiarly within his knowledge. 1 Stark. Ev. 418, 423; Abbott v. Allen, 14 
 Johns. (N. Y.) 253; 7 Am. Dec. 554; SwafEord v. Whipple, 3 Gr. (lo.) 265; 54 Am. 
 Dec. 498; Wooley v. Newcombe, 87 N. Y. 805. This is doubtless true of the 
 English practice where the grantor has conveyed only a portion of his estate, but 
 in America, where a general system of registration of conveyances and incum- 
 brances and, generally, of all documentary matter affecting the title prevails, 
 there would seem to be no reason to presume that the grantor is better informed 
 as to the state of the title than the grantee. 
 
 ' 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 themselves 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 largely 
 ■upon a statutory provision that the general issue is a denial of the plaintiff's 
 cause of action, and calls upon him to prove it. No question 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 
 ■Civil Procedure of that State, providing that issue might be joined by service of 
 an answer to the complaint, dispensing with a replication, the plaintiff, in an 
 action on a covenant of seisin, assumed the burden of proving the breach alleged 
 by him, that is, that the defendant was not seised of an indefeasible estate in fee 
 simple. 
 
OF THE COVENANT FOB SEISIN. 275 
 
 words of the covenant.^ "When the purcliaser obtains an injunction 
 against the collection of purchase money due by him, the burden is on 
 him to show that the title ig bad.^ So, also, in an action for the purchase 
 money in which he sets up the defense of failure of title.^ So long 
 as the parties are allowed to arrive at an issue by merely affirming 
 on the one side and denying on the other the words of the covenant, 
 it is difficult to perceive upon what principle the burden of proof 
 can be adjusted, other than that which casts the burden on him who 
 has the affirmative of the issue. JSTo difficulty can arise in fixing 
 the burden of proof in an action for breach of the covenant for 
 warranty, for the plaintifE 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 be 
 doubted whether an equitable disposition of the burden of proof 
 can be made upon the mere allegation that the defendant was or was 
 not seised of such an estate as his covenant describes. Defects of 
 title consist in the existence or non-existence of 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 nega- 
 tive ;* that is, the non-existence of a particular fact. A solution of 
 
 ' Mecklem v. Blake, 16 Wis. 103; 83 Am. Dec. 707. It Las 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.) 313; 50 Am. Dec. 765. But as such an 
 averment is no more in effect than an allegation that the defendant 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 it; for in many 
 cases the party, by making a slight change in his pleading, may give the issue a 
 negative or affirmative form at his pleasure. 1 Greenl. Ev. (Redf. ed.) § 74. 
 
 ' Grantland v. Wight, 5 Munf. (Va.) 295. Lewis v. Bibb, 4 Port. (Ala.) 84. 
 
 'Stokely v. Trout, 3 Watts (Pa.), 163. Sawyer v. Vaughan, 25 Me. 387. 
 Breithaupt v. Thurmond, 3 Rich. (S. C.) 216. 
 
 * Thus, 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 
 
276 MARKETABLE TITLE TO REAL ESTATE. 
 
 the difficulty would appai-ently be reached by i-equiring the plaintifl 
 to set out iu 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.' 
 
 § 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.^ The same form of pleading has 
 been held a sufficient compliance with a statutory provision that the 
 plaintiff's complaint sliall contain a statement of his cause of action.' 
 
 descent could not be sustained, the burden would be upon him to show that tbe 
 defendant, or his predecessor in title, was )iot 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. 233; 29 N. E. Rep. 297. There 
 the plaintiflE 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. 
 
 ' 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. 
 
 = Abbott V. Allen, 14 Johns. (N. Y.) 253; 7 Am. Dec. 534; Rickert v. Snyder, 9 
 Wend. (N. Y.) 421. Bacon v, Lincoln, 4 Gush. (Mass.) 213; 50 Am. Dec. 765. 
 Floom V. Beard, 8 Blackf. (Ind.) 76; Truster v. Snelson, 39 Ind. 96. Montgomery 
 V. Reid, 69 Me. 513; Blanchard v, Hoxie, 34 Me. 376. Bender v. Promberger, 4 
 Dall. (Pa.) 438. Pringle v. Witten, 1 Bay (S. C), 254; 1 Am. Dec, 613. Bircher 
 V. Watkins, 13 Mo. 523. Sooum v. Haun, 36 Iowa, 138. 
 
 ' Wooley V. Newcombe, 87 N. Y. 605. The intimation contained iu 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 particulurity 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, 35 Mich. 33, and Peck v. Houghtaling, 85 Mich. 137, 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 FOE SEISIN. 277 
 
 The defendant, at common law, having filed a plea of seisin to the 
 declaration, might, it seems, require the plaintiff to set forth in his 
 replication the particulars of the breach.' Thus, it seems to have 
 been possible at common law to develop by the pleadings the facts 
 conceived by the plaintifE 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.^ 
 
 of the covenant devolved on the plaintiff, ivithout adverting to any question of 
 pleading in the cause. But whether such a rule (requiring the plaintifE 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 requi,fing 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. HoUenbeck, 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. 
 
 ' Marston v. Hobbs, 3 Mass. 433; 3 Am. Dec. 61. Wooley v. Newcombe, 87 N. 
 S. 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 plaintifl set out the facts constituting the breach, see Sedgewick v. HoUen- 
 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, 613, 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. 
 "WHAT CONSTITUTES BREACH. § 122. 
 
 Definition of incumbrance. § 123. 
 
 Pecuniary charges and liens. Effect of notice. § 124. 
 
 Outstanding interest less than a fee. § 125. 
 
 Easements or physical incumbrances. § 126. 
 
 Notice of easement at time of purchase. § 127. 
 ASSIGNABILITY OE 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. 
 
 § 119. FORM AND EFFECT. The covenant against incum- 
 brances as used in America is either general, namely, " that the 
 premises are free from incumbrances,'" or special, " that the prem- 
 ises are free from incumbrances done, suffered or committed by " 
 the grantor.^ In England this covenant is usually expressed as a 
 part of the covenant for quiet enjoyment, namely, that the grantor 
 shall quietly enjoy the premises, " and that free from incumbrances." 
 
 'Rawle Govts, 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. 13; 29 N. W. Rep. 589. Stanley v. 
 Goodrich, 18 Wis. 505; Hilmert v. Christian, 29 Wis. 104. Smith v. Lloyd, 29 
 Mich. 882. Contra, Bowne v.Wolcott, (N. Dak.) 48 N. W. Rep. 436, citing Ruf- 
 ner 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 cove- 
 nant to warrant and defend "against all persons whomsoever, and all claims 
 whatsoever," is a covenant against incumbrances as well as a covenant of war- 
 ranty. Incumbrances are claims, and a covenant against all "claims" will 
 include incumbrances. Johnson v. Hollensworth, 48 Mich, 140. 
 
 ' 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 propertj' before he became owner. Jackson v. Sassaman, 39 Pa. St. 
 106. But taxes paid by the grantor constitute a breach of the covenant against 
 Incumbrances created by himself. Milot v. Reed, (Mont.) 39 Pac. Rep. 343. 
 
COVENANT AGAINST INCUMBEANCB8. 279 
 
 In some of the States the covenant of general warranty is con- 
 strued to include a covenant against incumbrances,' and in other 
 States the latter covenant is by statute implied from the use of the 
 words " grant, bargain and sell " ^ in the granting part of a convey- 
 ance. Such a covenant so implied is not limited or restrained by 
 an express covenant of special warranty contained in the same 
 deed.' 
 
 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 incum- 
 brance, or to indemnify against the liability occurs, and a right to 
 substantial damages immediately accrues thereupon without alleg- 
 ing or proving any special damage.* 
 
 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, covenanting 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. 313. 
 
 ■ 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. 
 
 ^ Moseley v. Hunter, 15 Mo. 322. In Alabama the words " grant, bargain and 
 sell " imply only a covenant against incumbrances created by the grantor. 
 Parker v. Parker, (Ala.) 9 So. Rep. 426. 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. A stat- 
 ute in the State of Washington provides that the words " convey and warrant" 
 in a deed shall be construed to include a covenant against incumbrances. But 
 if the grantor, instead of using the words, 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. 
 
 3 Funk v. Voneida, 11 S. & R. (Pa.) 109; 14 Am. Dec. 617. 
 
 ■"Lethbridge v. Mytton, 2 B. & Ad. 773. Here the covenant was to discharge 
 incumbrances on the granted premises to the extent of £19,000, and, there having 
 been a breach, judgment for £19,000 was entered for the plaintiff, though it waa 
 
280 "MARKETABLE TITLE TO EEAL ESTATE. 
 
 If the covenant be by several persons it will be construed to 
 extend to several as well as joint incumbrances.^ 
 
 §120. RESTRICTIONS AND EXCEPTIONS. The covenant against 
 incumbrances may, of course, be restricted to some particular incum- 
 brance, or to the acts of some particular person, or a particular 
 incumbrance may be excepted from the operation of the covenant. 
 When such a restriction or exception is expressed in the conveyance 
 in clear and unambiguous terms, no difficulty will arise in the con- 
 struction of the instrument, or in determining whether there has 
 been a breach of the covenant. But much litigation has resulted 
 from agreements of that character resting altogether in parol, or 
 
 not alleged or proved that he had been damnified bj' the breach. The court, 
 howfver, observed that the defendant might, if he thought fit, go into a court of 
 equity for an injunction againi3t the judgment, but did not intimate an opinion 
 as to whether the injunction could be sustained. Terrett v. Brooklyn Imp. Co., 87 
 N. T. 92. But see Aberdeen v. Blackmar, 6 Hill (N. Y.), .334, where it was held that 
 on a covenant to indemnify and save harmless, plaintiff must show that he has 
 been actually damnified. Gardner v. Kiles, 16 Me. 280, obiter, the incumbrance 
 having been actually enforced against the covenantee. Q-ennings v. Norton, 3.5 
 Me. 309, action on bond by grantor to indemnify against a particular incum- 
 brance. Hartley v, Gregory, 9 Neb. 279. Mr. Rawle (Govts, for Title [5th ed.], 
 S 74) cites several cases to the proposition in the te.xt, which, upon examination, 
 appear to have been actions upon agreements by the grantie to discharge an 
 incumbrance or\t of the purchase money. Williams v. Fowle, 132 Mass. 385; 
 Furnas v. Durgin, 119 Mass. 500; 30 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 app.arent, inasmuch as a failure to discharge the 
 incumbrance is in substance a failure to i)ay part of the purchase money. Such 
 a delinquency would appear to require a stei'ner rule of damages than one in 
 which the grantor had failed to provide an indemnity against a loss which had 
 not as yet occurred. j\Ir. Sedgwick has criticised the rule stated in the text. 
 Sedg. Measure of Dam. 182. A contract of indemnity against liability is held to 
 he broken as soon as the liability occurs, and the measure of damages is the full 
 amount of such liability. "Webb v. Pond, 19 "Wend. (N, Y.) 423; Rockfeller v. 
 Donnelly, 8 Cow. (N. Y.) 623; Chace v. Hinman, 8 Wend. (N. Y.) 452; 24 Am. 
 Dec. 39. But where the obligation is that the party indemnified shall not sus- 
 tain 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. (N. 
 Y.) 563; 49 Am, Dec. 359. A covenant to indemnify and save harmless from a 
 particular incumbrance is broken as soon as the grantee's title is extinguished by 
 foreclosure. Dana v, Goodfellow, (Minn.) 53 N. W. Rep. 656. 
 ' Duval V. Craig, 2 Wh. (U. S.) 45. 
 
COVENANT AGAINST INCUMBRANCES. 281 
 
 from the use of obscure and ambiguous terms in tlie conveyance 
 with respect to a particular incumbrance adverted to by the parties. 
 § 121. Parol agreements. It may be stated, as a general rule, 
 that where a conveyance containing a covenant against incumbrances 
 has been executed by the seller and accepted by the purchaser, evi- 
 dence of any contemporaneous parol agreement that such covenant 
 should not extend to a particular incumbrance, or that the grantee 
 should assume and pay ofE a particular incumbrance embraced by the 
 covenant, will not be received in any action for the breach of such 
 covenant.' ISTor will such evidence be received, where the conveyance 
 was without covenants for title, to show tliat the grantor orally 
 agreed to discharge and pay off an incumbrance u|)on the premises.' 
 Such a case is not within the rule which permits the true consider- 
 ation of a written agreement to be shown by parol. But where the 
 conveyance was " subject to mortgage " parol evidence was admitted 
 to show that the grantee assumed payment of the mortgage ; in such 
 case the evidence is admitted, not as supplying a new term of the 
 contract, but as explanatory of a doubtful expression emj)loyed by 
 the parties.^ 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 mortgage on the premises.* Modifications of the foregoing 
 general rule have been announced in several cases, which are diffi- 
 cult to be reconciled with that rule. Thus it has been said that 
 
 'Bucknerv. Street, 5 McCrary (C. C), 59. Raymond v. Raymond, 10 Cush. 
 (Mass.) 141; Howe v. Walker, 4 Gray (Mass.), 318; Dutton v. Gerish, 9 Cusli. 
 (Mass.) 94; 55 Am. Dec. 45; Flynn v. Bourneuf, 143 Mass. 277; 58 Am. Bep. 185; 
 Simanovich v Wood, 145 Mass. 180; 13 N, E. Rep. 391. Suydam v. Jones, 10 
 Wend. (N. Y.) 185; 25 Am. Dec. 552. Johnson v. Walton, 60 Iowa, 315; 14 N. 
 W. Rep. 325. Edwards v. Clark, 83 Mich. 246; 47 N. W. Rep. 112. Bigham v. 
 Bigham, 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. McOlure 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. 
 
 '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 Atk Rep. 560. 
 3fi 
 
282 MARKETABLE TITLE TO EEAL KSTATP:. 
 
 parol evidence will be received, not to contradict the terms of a 
 written warranty, but to show that the property was taken by the 
 purchaser subject to incumbrances which he knew to exist at tlie 
 time of the purchase, though not mentioned in the deed, and 
 though there was a warranty against incumbrances.' The rule 
 excluding parol evidence to show an exception from a covenant 
 against incumbrances does not apply to cases of fraud' or mistake.^ 
 But the fraud or mistake complained of must, of course, be such as 
 caused the omission of the true agreement of the parties from the 
 conveyance, such as a fraudulent representation that the insertion 
 of the exception was unnecessary, or that the instrument, in fact, 
 contained the 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 inadvertent omission of a part of tlioir agreement 
 from the instrument.* 
 
 1 Sidders v. Riley, 23 111. 110, did., citing Allen v. Lee, 1 Ind. 58; 48 Am. Dec. 
 353. Leland v. Stone, 10 Mass. 459. Pitman v. Connor, 27 Ind. 337. It is sub- 
 mitted, "with diffidence, that such evidence does contradict the warranty. Leland 
 V. Stone was a case of mistake in omitting the exception. This case of Sidders 
 V. Riley has been criticized by Mr, Rawle (Govts, for Title [5th ed.], p. 113). 
 Such, however, seems to be the established rule in Indiana. Maris v. lies, (Ind.) 
 30 N. E. Rep. 153; Hendrick v. Wisehart, 57 Ind. 139; ilcDill v. Gunn, 43 Ind. 
 315; Fitzer v. Fitzer, 29 Ind. 468. And whether or not consistent with the doc- 
 trine 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 Peim- 
 gylvania, see post, § 269. 
 
 ' Buckner v. Street, 5 McCrary (U. S.), 59. Kyle v. Febley, (Wis.) 51 N. W. 
 Rep. 357. 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, § 870. Taylor v. Gilman, 35 Vt. 413. 
 Here the incumbrance complained of was a right in a railroad company to 
 take 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 
 assist 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 
 agreed that the covenant should not extend to a particular incumbrance, and in 
 which the parties failed to insert the exception in the deed. 
 
 ' Haire v. Baker, 1 Seld. (N. T.) 361. The fraud or mistake may, of course, be 
 shown in equity, and in equitable defeases at law, very generally permitted by 
 statute throughout the American States. 
 
 *See the remarks of the court in Collingwood v. Irwin, 3 Watts (Pa.), 306. 
 
COVENANT AGAINST INCUMEEANCES. 283 
 
 It frequently happens in the sale of real property that the pur- 
 chaser agrees to pay off and discharge known incumbrances upon 
 the premises as a part of the consideration of tlie sale. "When such 
 is the case the seller should be careful to see that such an agree- 
 ment is fully and unequivocally expressed in the conveyance.' A 
 mere recital that the grantor conveys, or that the purchaser takes, 
 " subject to mortgage " or " subject to incumbrances " imposes no 
 obligation upon the grantee to pay the mortgage debt or remove the 
 incumbrance, except for his own protection.' 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.^ 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.* 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.' 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, 
 
 'Jones Mortg. § 748; Eawle Covts. for Title (5th ed.), § 88. 
 
 « Jones Mortg. § 748. Drury v. Tremont Imp. Co., 13 Allen (Mass.), 171. Bel- 
 mont V. Coman, 33 N. Y. 438. Strohauer v. Voltz, 43 Mich. 444. Johnson v. 
 Monell, 13 Iowa, 300; Aufricht v. Northrup, 20 Iowa, 61. 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 payment of a mortgage on the premises. Morehouse v. Heath, 99 Ind. 509. 
 It seems, however, that parol evidence will be admitted to show that the incum- 
 brance was deducted from the purchase money. See Townsend v. Ward, 37 
 Conn. 610. Ferris v. Crawford, 3 Denio (N. Y.), 595. Thompson v. Thompson, 
 4 Ohio St. 333. McMahon v. Stewart, 23 Ind. 590. 
 
 s Van Winkle v. Earl, 36 N. J. Eq, 342. 
 
 ■•Thus it has been held that "a conveyance of land expressly subject to all 
 incumbrances " binds the grantee to pay ofE an incumbrance. Skinner v. Starner, 
 34 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," excepts such incumbrance 
 from the grantor's covenants. Shears v. Dusenbury, 13 Gray (Mass.), 293. 
 
 ' Aufricht V. Korthrup, 30 Iowa, 61. 
 
284 MARKETABLE TITLE TO EEAL ESTATE. 
 
 of course, relieve the grantor from liability as to ithat incumbrance 
 upon his covenant against incumbrances.^ That expression is 
 sufficient as a special exception from the operation of the covenant.^ 
 And where there has been such an exception the covenant will not 
 of course be broken by the existence of the excepted incumbrance.^ 
 ISTor will the grantee be permitted to assign as a breach of the cove- 
 nant against incumbrances a mortgage which he himself, for an 
 adequate consideration, had undertaken to discharge.* J3ut 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 incum- 
 brance, and the covenant will be broken if the incumbrance exceed 
 that amount.'^ It has also been held than an agreement by the 
 grantee to pay off incumbrances might be waived by the parties, 
 and that the grantee might, after such waiver, maintain an action 
 for breach of the covenants, if the vendor failed to satisfy the 
 incumbrances, or to redeem the land if sold thereunder.* An 
 agreement by the grantee to assume payment of an incumbrance on 
 the premises need not be contained in the conveyance to him. 
 Such an agreement contained in an instrument of equal dignity 
 with the deed, such as a bond, will render inoperative a covenant 
 of warranty contained in the deed.'' In Massachusetts it is settled 
 that if a conveyance contain a covenant against incumbrances, 
 excepting a particular incumbrance and also a covenant of warranty, 
 the exception applies only to the covenant against incumbrance and 
 not to the covenant of warranty, and that the excepted incum- 
 brance, if enforced, will constitute a breach of the covenant of 
 
 ' Freemao v. Foster, 55 Me. 508. Van Winkle v. Earl, 26 N. J. Eq. 242. 
 
 ' Freeman v. Foster, 55 Me. 508. 
 
 ' 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. Bee. 504. So, generally, it seems, if 
 the grantee assume in writing, the discharge of the incumbrance. Copeland v. 
 Copeland, 30 Me. 446. In Reid v. Sycks, 27 Ohio St. 285, it was held that an 
 agreement by the purchaser contained in the contract of sale to pay an incum- 
 brance, is not merged in a conveyance of the land with covenants for title. 
 
COVENANT AGAINST INCUMBRANCES. 285 
 
 warranty.^ This rule, however, has been thus qualified in that 
 State, namely, that if the granting part of the deed describe the 
 premises as subject to an incumbrance, a covenant of vs^arranty 
 following thereafter will be limited precisely to what purported to 
 be conveyed — that is the land, subject to the incumbrance.^ And 
 further, that the exception of a particular incumbrance 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.^ 
 
 § 122. WHAT CONSTITUTES BREACH. A covenant against 
 incumbrances, 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 
 enforcement, though, as we shall hereafter see, the plaintiff can 
 recover no more than nominal damages if he has suffered no incon- 
 venience or loss on account of the incumbrance.* The Statute of 
 Limitations runs upon a covenant against incumbrances from the 
 time the deed was made.' But a covenant to defend the grantee 
 
 ' Estabrook v. Smith, 6 Gray (Mass.), 572. It is to be observed that in this 
 case there was no mention of the incumbrance in the granting part of the deed. 
 This decision has been questioned, as adopting a construction of the covenants 
 apparently at variance with the intention of the parties. The case has been 
 criticized by Mr. Rawle (Govts, for Title [5th ed.], § 290), and disapproved in 
 Bricker v. Bricker, 11 Ohio St. 240, where a contrary decision was rendered upon 
 the same state of facts. It was approved, however, in King v. Kilbride, 58 
 Conn. 109; 19 Atl. Rep. 519. Sandwich Manfg. Co. v. Zellman, (Minn.) 51 N. 
 W. Rep. 379. 
 
 ' Brown v. Bank, 148 Mass. 300; 19 N. E. Rep. 382; Linton v. Allen, 154 Mass. 
 432; 28 N. E. Rep. 780. Freeman v. Foster, 55 Me. 508. But where three 
 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 conse- 
 quence of his failure to except that incumbrance from his covenant of warranty. 
 Ayer v. Brick Co., (Mass.) 31 N. E. Rep. 717. 
 
 'Lively v. Rice, 150 Mass. 171; 22 N. E. Rep. 888. Keller v. Ashford, 133 
 U. S. 610. 
 
 * See post, § 129. Stambaugh v. Smith, 23 Ohio St. 584. Ladd v. Myers, 137 
 Mass. 151. Moseley v. Hunter, 15 Mo. 322. 
 
 ' Guerin v. Smith, 63 Mich. 369; 38 N. W. Rep. 906; 
 
286 MAEKETABLE TITLE TO REAL ESTATE. 
 
 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 incumbrances.^ 
 The covenant is, of course, not broken by the existence of an incum- 
 brance which the grantee has assumed to pay. And proceedings to 
 foreclose such an incumbrance, accompanied by a lis pendens, can- 
 not be held a breach of the covenant since these are mere incidents 
 of the incumbrance.^ 
 
 § 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."' 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 is plain that a pecuniary charge upon the premises, 
 or a lesser estate carved therefrom, must diminish their value. But 
 the definition is necessarily inconclusive as respects the third class, 
 inasmuch as there are certain 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 
 
 1 Shelton t. Pease, 10 Mo. 473. 
 
 ' Monell V. Douglass, 17 N. Y. Supp. 178, not officially reported. 
 
 'Prescott V. Trueman, 4 Mass. 637; 3 Am. Dec. 249. This definition has been 
 approved by Mr. Greenleaf (3 Ev. § 243), and by Mr. Rawle (Govts, for Title [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. Chap- 
 man 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, and in many other cases. 
 
COVENANT AGAINST INCUMBEANOES. 287 
 
 at the time of the purchase, has occasioned much conflict of decision 
 as to whether they constitute such breaches of the covenant as 
 entitle the purchaser to damages.' 
 
 § 124. Pecuniary charge or lien. Judgments. Notice to 
 covenantee. A pecuniary charge or lien upon the granted prem- 
 ises, 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 executory con- 
 tract 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 incum- 
 brance. But notice is of no importance after a conveyance with 
 covenants for title has been executed. The purchaser takes the 
 covenant as much for protection against known as against unknown 
 incumbrances,^ and he is not required to exercise any diligence in 
 ascertaining whether there are incumbrances on the land.' The 
 existence of the incumbrance constitiites 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.^ 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.^ 
 
 A judgment lien binding the granted premises constitutes, of 
 coarse, a breach of the covenant against incumbrances.^ So, also, 
 
 ' Post, § 137. 
 
 ^ Dunn V. White, 1 Ala. 645. Worthington v. Curd, 23 Ark. 285. Snyder t. 
 Lane, 10 Ind. 424. Townaend v. Weld, 8 Mass. 146. Smith v. Lloyd, 29 Mich. 
 382. Clore v. Graham, 64 Mo. 349. Long v, Moler, 5 Ohio St.' 272; Lloyd v. 
 Quimby, 5 Ohio St. 263, 365. Punk v. Voneida, 11 Serg. &K. (Pa.) 109; 14 Am. 
 Dec. 617. Cathcart v. Bowman, 5 Pa. St. 317; Shaffer v. Green, 88 Pa. St. 370. 
 Lane v. Richardson, (N. Car.) 10 S. E. Rep. 189. Yancey v. Tatlock, (Iowa) 
 61 N. W. Rep. 997. 
 
 « Edwards v. Clark, 83 Mich. 346; 47 N. W. Rep. 113; Smith v. Lloyd, 39 
 Mich. 383. 
 
 *HalI V. Dean, 13 Johns. (N. Y.) 105. 
 
 ' Post, § 129. 
 
 ' 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- 
 
288 MAEKETABI.E TITLE TO EEAL ESTATE. 
 
 an attachment, though it be in its nature uncertain and dependent 
 upon the final judgment to be rendered in the action;^ the lien 
 which it creates remains a continuing security for any judgment 
 that the plaintiff may obtain in the suit.'' The covenant is also 
 broken by the existence of a mechanic's lien,^ a vendor's lien/ or a 
 mortgage or deed of trust upon the premises.^ A mere Us pendens, 
 without evidence that it is well founded, is no incumbrance ;" neither 
 is a tax deed which, though recorded, is for any reason insufficient 
 to pass the title.' 
 
 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 con- 
 stitute liens on the property taxed or benefited.' "W here, however, 
 
 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; 31 
 Am. Rep. 638. 
 
 'Johnson v. Collins, 116 Mass. 392. 
 
 »Dyer v. Ladomus, 3 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. 
 
 ^McKennan v. Doughman, 1 Pen. & W. (Pa.) 417, semble. 
 
 'Tufts V. Adams, 8 Pick. (Mass.) 549; Brooks v. Moody, 30 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.) 80 Pac. Rep. 727. See, also, post, § 206. 
 
 '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. Ji!lette, 9 
 Biss. (C. C.) 396. 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; 
 Blackiev. 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 Clourt, 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.) 39 Pac Rep. 343. See ante, this chapter, p. 372, note. A 
 betterment tax lawfully assessed, is a breach of the covenant against incum- 
 brances. Foley V. City of Haverhill, 144 Mass. 352; 11 N. E. Rep. 554; 
 Simanovich v. Wood, 145 Mass. 180; 13 N. E. Rep. 391. An unpaid municipal 
 claim for water pipe, not entered of record so as to preserve its lien, is no breach 
 
COVENANT AGAINST INCUMBKANCES. 289 
 
 the conveyance was made after the tax liad 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 wliether 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 
 grantor's covenant against incumbrances.^ But where a statute pro- 
 
 of the covenant. Stutt v. Building Association, 13 Pa. Co. Ct. Rep. 344. In 
 Ingalls V. Cooke, 21 Iowa, 560, it was held that a mortgagor is not liable for 
 taxes assessed upon the property, after the mortgage was executed, Coi,B, J., 
 dissenting. This decision is at least, questionable. A mortgage is a mere security 
 for the payment of money, and does not operate a change of title or ownership, 
 (IJones Mortg. § 11; Rawle Covts. for Title [5thed.],.§ 318; Stanardv. Eldridge, 
 16 Johns. [N. Y.] 254), and the duty to pay the taxes would, therefore, 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 mort- 
 gage, 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 pur- 
 pose of cutting off such lien. See Jones v. Davis, 24 Wis. 329; Smith v. Lewis, 
 30 Wis. 350; Bassett v. Welch, 32 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 responsible, and such an assessment is, therefore, no 
 breach of the covenant against incumbrances.. Spring v. Tongue, 9 Mass. 38; 6 
 Am. Dec. 31. 
 
 ' Cochran v. Guild, 106 Mass. 30; 8 Am. Rep. 396. De Peyster v. Murphy, 66 
 N. Y. 622. The liability of the premises to an assessmeut for the expense of 
 building a sewer, is an incumbrance from the time of the order for the construc- 
 tion of the sewer, and is, therefore, a breach of a covenant against incumbrances 
 In a deed delivered 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 improvements, 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, 83 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 
 37 
 
290 MAEKETABLE TITLE TO KEAl ESTATE. 
 
 vides that all taxes and assessments shall become liens upon a cer- 
 tain day of the year, a tax or assessment levied or ordered before 
 that day, being no lien, will not constitute a breach of the covenant.* 
 In Xew York the rule is that until the amount of a tax is ascertained 
 and determined in the manner provided by law no lien attaches. 
 
 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, con- 
 stituted 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 pursu- 
 ance of a contract of sale made on the 33d 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 con- 
 tention was denied by the court. Under a statute providing that a ditch assess- 
 ment should be a lieu 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, 73 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 applicable only to the tax of the year in which 
 the conveyance was made. Peters v. Meyers, 33 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. Barn- 
 hart 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 covenant against incumbrances in a deed executed after the com- 
 pletion of the improvement but before levy of the assessment, is broken. Harts- 
 horn V. Cleveland, (N. J.) 19 Atl. Rep. 974. 
 
 ' Bradley v. Dike, (N. J. Eq.) 33 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. Hereunder it 
 was held that an assessment for a street improvement became a lien, not from the 
 time the improvement was authorized, but from the time the assessment became 
 due and payable, and that a covenant against incumbrances executed in the 
 interim was not broken by such assessment. See, also, Overstreet v. Dobson, 28 
 led. 256. Long v. Moler, 5 Ohio St. 273. In Everett v. Dilley, (Kans.) 7 Pac, 
 Rep. 661, it was said that in the absence of special agreement the law determines 
 which party shall pay taxes accruing while the purchase money remains unpaid, 
 which is as much as to say that the tax follows the land, and that the person who 
 is in equity the owner at the time of the imposition of the tax must pay it. In 
 Nebraska a vendor selling after April first in any year is, by statute, liable for 
 the taxes of that year. McClure v. Campbell, (Neb.) 40 N. W, Rep. 595. 
 
COVENANT AGAINST INCUMBEANCES. 291 
 
 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 incumbrances.' 
 Taxes assessed after the execution of a deed, which do not relate 
 back to a time prior to the execution of the deed, are, of course, no 
 breach of the covenant.^ Taxes are none the less incumbrances 
 in that they constitute a personal liability of the grantor, and may 
 be collected otherwise than by a sale of the land.^ Nor because 
 they are invalid, if the land be liable to reassessment/ Such reas- 
 
 ' Lathers v. Keogh, 109 N. Y. 583, distinguishiag De Peyster v. Murphy, 66 
 N. Y. 632, 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 constitute a lien on the adjoining 
 premises, estimates made after execution of a conveyance constitute no breach of 
 a covenant .against incumbrances tlierein, though the contract for the improve- 
 ment had been let before the deed was executed. Langsdale v. Nioklaus, 38 Ind. 
 289. The mere entry of land in an assessment roll does not constitute an incum- 
 brance thereon, and the subsequent 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. Eep. 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, Where an assess- 
 ment for benefits has not, at the time of a conveyance, been entered and con- 
 firmed 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. Compare De Peyster v. Murphy, 66 N. Y. 
 633. 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 deter- 
 mined at the time the covenant was made. McLaughlin v. Miller, 134 N. Y. 510; 
 26 N. E. Rep. 1104. 
 
 ' Lathers v. Keogh, 109 N. Y. 583; 17 N. E. Rep. 131. 
 
 3 Cochran v. Guild, 106 Mass. 29; 8 Am. Rep. 296. 
 
 * Peters v. Meyers, 22 Wis. 602. 
 
292 MARKETABLE TITLE TO EEAL ESTATE. 
 
 sessment will relate back to the entry of the land on the original 
 assessment roll.' 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 assess- 
 ment valid.' 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.^ If the tax was voluntarily paid by 
 the grantee without previous demand on the grantor, the latter may 
 show that the tax was invalid.* 
 
 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." 
 
 § 125. Outstanding estate or interest in the premises. An 
 outstanding estate or interest, less than a fee, in the granted prem- 
 ises is an incumbrance, and, therefore, operates a breach of the 
 covenant against incumbrances f such, for example, as the right in 
 a stranger to enter upon the premises and cut and remove timber 
 therefrom f or a prior sale of " all the iron and coal " on the granted 
 land, with right of way and privilege of removal.^ So also an inter- 
 est in the premises in favor of a third person, who holds as a tenant in 
 common, is an incumbrance.' But an adverse equitable claim to the 
 premises is not an incumbrance."' The better opinion seems to be that 
 a condition which may work a forfeiture of the estate granted, or a 
 
 1 Coburn v. Litchfield, 134 Mass. 449. Cadmus v. Fagan, 47 N. .J. L. 549. 
 
 'Patterson v. Yancey, 81 Mo. 379. Robinson v. Murphy, 33' lud. 482; Kirk- 
 patrick v. Pearce, 107 Ind. 530. Mitchell v. Pillsbury, 5 Wis. 410. But see 
 Voorhis V. Forsyth, 4 Biss. (C. C.) 409, where it was held unnecessary to aver 
 that the tax was valid, such being the prima fnrie presumption. 
 
 •Kennedy v. Newman, 1 Sandf. (N. Y. S. C.) 187. 
 
 ^Balfour v. Whitman, 89 Mich. 303; 50 N. W. Rep. 744. 
 
 ' 1 Sugd. Vend. (8th Am. ed.) 487. 
 
 ' Jenkins v. Buttrick, 1 Met. (Mass.) 480. 
 
 ■■ Spurr V. Andrews, 6 Allen (Mass), 420. Cathcart v. Bowen, 5 Pa. St. 817. 
 Clark V. Zeigler, 79 Ala. 346; 85 Ala. 154; 4 So. Rep. 669. 
 
 « Stambaugh v. Smith, 33 Ohio St. 584. 
 
 ' Comings v. Little, 2*4 Pick. (Mass.) 366. 
 
 >» Marple v. Scott, 41 111. 50. 
 
COVENANT AGAINST INCUMBEANCES. 293 
 
 contingency upon which the estate is liable to he determined in the 
 hands of the purchaser, amounts to a breach of the covenant against 
 incumbrances.' It is apprehended, however, that the existence of 
 such an incumbrance would entitle the plaintifE to nominal damages 
 only. 
 
 The covenant against incumbrances is broken by the existence of 
 an outstanding term of years in, or lease of, the granted premises.^ 
 But where the conveyance is taken with knowledge that the land is 
 in the possession of a lessee, the existence of the lease will not, 
 under a statute transferring the constructive possession to the grantee 
 without attornment by tenant, operate a breach of the covenant ; * 
 nor, it is apprehended, independently of any statute, where there is 
 an actual attornment by the tenant, or an apportionment of the rent 
 between the parties.* And generally it may be said that if the pur- 
 chaser knows that the premises are in the possession of a tenant, and 
 no special contract is made, the occupant will become tenant to the 
 purchaser, and there will be no breach of the covenant against 
 incumbrances.' Nor will the covenant be broken if the purchaser 
 
 'CooLBT, J.,' in Post v. Campau, 42 Mich. 90, citing Jenks v. Ward, 4 Mete. 
 (Mass.) 413. 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. 
 (IT. 8.) 316, it was contended by counsel, arguendo, that an estate in expectancy 
 outstanding is an incumbrance on the land, citing 14 Vin. Abr. 353, tit. Encum- 
 brance H. Sugden Vend, (old ed.) 537, § '9. In Estabrook v. Smith, 6 Gray 
 (Mass.), 573; 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. 
 
 •^ 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. 346; 47 N. "W. Rep. 113. Fritz v. Pusey, 
 31 Minn. 368; 18 N, W. Rep. 94. Porter v. Bradley, 7 R. I. 538. Grice v. Scar- 
 borough, 3 Spear L. (S. C.) 649; 43 Am. Dec. 391. Clark v. Fisher, 54 Kans. 403; 
 38 Pac. Rep. 493; Smith v. Davis, 44 Kans. 362; 34 Pac. Rep. 438. 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 pur- 
 pose. Batchelder v. Sturgis, 3 Gush. (Mass.) 301. An agreement that in a cer- 
 tain 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. 
 
 *Rawle Govts, for Title (5th ed.), § 78. Haldane v. Sweet, 55 Mich. 196. 
 
 'Liindley v. Dakin, 13 Ind. 388; Page t. Lashley, 15 Ind. 153. In Edwards v, 
 Clark, 83 Mich. 346; 47 N. W. Rep. 112, it was said that there would stiU be a 
 
294 MARKETABLE TITLE TO EEAL ESTATE. 
 
 accepts an assignment of the lease;' nor if the conveyance of the 
 fee be made expsessly subject to the lease ; in such a case the rent 
 is an incident to the reversion, and passes with it.^ An outstanding 
 life estate in a stranger is an incumbrance.^ 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 consum- 
 mate by the death of the husband.'' 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.^ The right of a wife to elect whether she will 
 take dower in lieu of a jointure or settlement, is such an incum- 
 brance on land acquired by the husband after the settlement, as 
 amounts to a breach of a covenant against incumbrances in a subse- 
 quent conveyance of the land.^ 
 
 § 126. Easements or physical incumbrances. An easement 
 or servitude to wliich the granted premises are subject, and which 
 was unknown to the purchaser at tlie time of the conveyance, or 
 subject to which he cannot be reasonably presumed to have taken 
 the premises, constitutes everywhere a breach of the covenant against 
 
 breacli 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, 53 Me. 303. 
 
 'Pease v. Christ, 31 N. Y. 141. 
 
 'Christy V. Ogle, 33 111. 395. Mills v. Catlin, 23 Vt. 98, semble. See cases 
 cited below. 
 
 ■•Shearer v. Ranger, 23 Pick. (Mass.) 447; Jenks v. Ward, 4 Met. (Mass.) 413; 
 Harrington v. Murphy, 109 Mass. 299. Blanchard v. Blanchard, 48 IMe. 174; 
 Donnell v. Thompson, 1 Fairf. (Me.) 170; 25 Am. Dec. 316; Runnels v. Webber, 
 D9 Me. 490; Smith v. Connell. 33 Me. 136; Porter v. Noyes, 3 Greenl. (Me.) 27; 
 11 Am. Dec. 30. Russ v. Perry, 49 N. H. 549; Pitts v. Hoitt, 17 N. H. 580. 
 Carter v. Denman, 8 Zab. (N. J. L.) 373. Jones v. Gardiner, 10 Johns. (N. Y.) 
 266. Durrett v. Piper, 58 Mo. 551; Henderson v. Henderson, 13 Mo. 151; 
 Walker v. Deaver, 79 Mo. 664; Ward v. Ashbrook, 78 Mo. 515 Contra, dictum 
 of Story, J. in Powell v. Munson, 8 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, oMi!er. Bostwick v. Williams, 86 111. 65, semble; 85 Am. Dec. 385; 
 Humphrey v. Clement, 44 111. 299, dictum. In Blevins v. Smith, (Mo.) 16 8. W. 
 Rep. 213, the covenantee bought in an inchoate right of dower in the premises, 
 and it was held that he was not entitled to damages, there 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. 
 
COVENANT AGAINST INCUMBRANCES. 295 
 
 incumbrances.' Such, for example, as a private right of way over 
 the premises ; 2 a building restriction running with the land, and 
 binding the covenantee;^ an obligation to maintain a division 
 fence ; * the right in a stranger to maintain a drain across the war- 
 ranted land ; = the right to conduct water from a spring on the 
 granted premises, through pipes laid beneath the surface;' the 
 right to have the eaves of a building on an adjoining lot overhang 
 the granted premises, so as to drip water thereon ; ' the right in an 
 adjoining proprietor to dam up and use the water of a stream run- 
 ning through the granted premises ; ' the right in a stranger to 
 
 ' See cases cited in the notes below. 
 
 'Blake v. Everett, 1 Allen (Mass. 7, 248; Wetherbee v. Bennett, 2 Allen (Mass.), 
 428; Harlow v, Thomas, 1.5 Pick. (Mass.) 66. Wilson v. Cochran, 46 Pa. St. 
 233; 86 Am. Dee. 574. 
 
 '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. 13. A condition that during ti 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, 63 N. II. 46. A grantor has 
 a right to impose building restrictions, and they are valid incumbrances. Cou- 
 dert 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. 
 
 ^Kellogg V. Robinson, 6 Vt. 376; 27 Am. Dec. 550. Bronson v. Coffin, 108 
 Mass. 175; 11 Am. Rep. 385. 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 perpetually 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 col- 
 lected, showing that such a covenant in a deed poll does run with the land. 
 ' Ladd V. Noyes, 137 Mass. 151. 
 •McMullin V. Wooley, 2 Lans. (N. T.) 394. 
 ' Carbrey v. Willis, 7 Allen (Mass.), 364; 83 Am. Dec. 688. 
 •Morgan v. Smith, 11 111. 199. Huyck v. Andrews, 113 N. Y. 81. 
 
296 MARKETABLE TITLE TO REAL ESTATE. 
 
 divert the water from a stream on such premises ; * the right in a 
 stranger to flow the premises witli the waters of a mill dam.^ 
 These, and other easements and servitudes,^ all constitute breaches 
 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.^ 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 incumbrance, 
 and will, therefore, operate no breach of the covenant.^ 
 
 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." So, also, a wall standing wholly on one lot with a 
 right in the adjoining proprietor to use it creates a breach.' But 
 
 ' Mitchell V. Warner, 5 Conn. 498, 527, ob. 
 
 ^ Craig V. Lewis, 110 Mass. 377; Isele v. Arlington Sav. Bank, 135 Mass. 143. 
 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, 23 Wis. 638; 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 ease- 
 ment, which he would have independently of agreement or prescription, 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.) 483; 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, gee 
 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 hia grantee, and, therefore, constitutes no breach of his 
 covenant against incumbrances. 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, 
 356; 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. 48. The right of a canal company to appropriate the 
 water in a stream bounding or traversing the premises. Ginn v. Hancock, 31 
 Me. 42. A condition that no ardent spirits shall be sold on the premises; such a 
 condition is not invalid as being in restraint of trade. Hatcher v. Andrews, 5 
 Bush (Ky.), 561. 
 
 * Post, § 127. 
 
 ^Patterson v. Sweet, 3 111. App. 550. 
 
 « Giles V. Dugro, 1 Duer (N. Y.). 331. 
 
 'Moh- V. Parmelee, 43 N. Y. Super. Ct. 330. 
 
COVENANT AGAINST INCUMBEANCES. 297 
 
 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 wliich passes with the title 
 to the property.^ 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.^ In such a 
 case, it is apprehended, that if the jaurchaser bought without knowl- 
 edge of his liability to pay such costs he would be entitled to recover 
 as damages the amount so disbursed by him. 
 
 § 127. Notice of easement. There can be no doubt that a 
 pecuniary charge upon the granted premises such as a jndgment, a 
 mortgage, or a vendor's lien, constitutes a breach of the covenant 
 against incumbrance, though the purchaser was fully advised of its 
 existence when the contract was made or the conveyance taken. 
 The covenant is taken for the protection of the purchaser in case 
 the incumbrance should not be removed by the seller and the pur- 
 chaser be compelled to pay it at some future day.' 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- 
 
 • Hendricks V. Stark, 37 N. Y. 106; 93 Am. Dec. 949; Mohr v. Parmelee, 43 
 N. Y. Super. Ct. 320. The existence of a party wall on tlie 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, 131 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. Z. 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, Blon- 
 deau V. Sheridan, 81 Mo. 545; Keating v. Korfhage, 88 Mo. 524. Burr v. 
 Lamaster, (Neb.) 46 N. W. Rep. 1015. 
 
 ' Ante, cases cited, note 2, p. 287. 
 38 
 
298 MAEKKTABLE TITLE TO KEAL ESTATE. 
 
 takes to remove it as a part of the consideration.^ 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 
 pul:)lic highway,^ a railway,^ or a canal, a different rule as to the 
 
 ■ Kutz V. McKune, 22 Wis. 628; 99 Am. Dec. 85, ^-here it -was said that a 
 pecuniary incumbrance does not affect the physical condition of the premises. 
 It is a mere incident, and where the purchaser talies a covenant against incum- 
 brances, 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. 
 
 ^ A public highway through the granted premises, laid out, opened, in use and 
 known to the purchaser, is no breach of the covenant against incumbrances. 
 Whitbeck v. Cook, 15 Johns. (N. Y.) 483; 8 Am. Dec. 272, loading case, in which, 
 however, the covenant was that of seisin, and not against incumbrances. The 
 principle is the same in either case. Huyck v. Andrews, 113 N. Y, 81; Hymes 
 V. Esty, 116 N. Y. 501. Smith v. Hughes, 50 Wis. 630. Scribner v. Holmes, 16 
 Ind. 143. Butte v. Riffe, 78 Ky. 353. Lallande v. West, 18 La. Ann. 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 consideration, 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 
 riinning through a tract of land, which was known to the purchaser at the time 
 of his purchase, is such an incumbrance as would constitute a breach of a cove- 
 nant of warranty against incumbrances, would produce a crop of litigation in 
 this State that would be interminable." Per curiam. Desverges v. Willis, 58 
 Ga. 515; 21 Am. Rep. 389. Ake v. Mason, 101 Pa. St. 31. 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, Shaeswood, C. J., and Tdrnkby, 
 J., dissenting. It appeared, however, that the condemnation money had not 
 been paid, and it was intimated that the remedy of the grantee was against the 
 public authorities. Highway no breach; Smith v. Hughes, 50 Wis. 620. Scrib- 
 ner V. Holmes, 16 Ind. 142. An alley known to the purchaser is no incumbrance. 
 Haldane v. Sweet, 55 Mich. 196, per Coolkt, J., who said: "The alleys were 
 open to observation at the time (of the purchase), and the (grantee) must have 
 
 ^ Smith V. Hughes, 50 Wis. 620. This would probably be so held wherever it 
 is held that a pubUo highway known to the purchaser would not be an incum- 
 brance. 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. 306; 3 Am. Rep. 290. 
 Barlow V. McKinley, 24 Iowa, 70; Kostcndader v. Pierce, 37 Iowa, 645. Burk v. 
 Hill, 48 Ind. 52; 17 Am. Rep. 731. Farrington v. Tourtellot, 39 Fed. Rep. 788. 
 
COVENANT AGAINST INCUMBRANCES. 299 
 
 effect of notice upon the right to recover lias been establislied in 
 many of the States. In such a case the purchaser has no contingent 
 or prospective enforcement of the incumbrance to provide against 
 with covenants for title. There would be neither reason, utility, 
 
 known all about them and bought with them in mind." If the highway be laid 
 oat, 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 pur- 
 chaser with notice of its existence, the covenant will of course be broken. 
 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 war- 
 ranted premises rests upon the presumption arising from the opportunity fur- 
 nished 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 con- 
 structive, 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 
 condemned but not opened) the covenant is broken. These remarks were made 
 in respect of a covenant of warranty, but they apply with equal force to the 
 covenant against incumbrances. In the following cases a public highway over 
 the premises has been held a breach of the covenant against incumbrance, with- 
 out regard to the questio»i 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. Pritohard v. Atkinson, 3 N. H. 335. Of course if the public road has 
 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 pre- 
 suming 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 
 
 In Gerald v. Elley, 51 Iowa, 317, it was held that the mere fact that a railroad 
 company exercises a right of way, is not of itself a breach of the covenant 
 against incumbrances. The company may be a trespasser. It must be shown 
 that the right of way has been lawfully acquired. The grantor cannot 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 unopemd railroad right of way will constitute a breach of the covenant 
 against incumbrances- Bruns v. Schreiber, (Minn.) 51 N. W. Rep. 120. 
 
300 MARKETABLE TITLE TO EEAL ESTATE. 
 
 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 
 inconvenience it might occasion him, and to have agreed upon the 
 consideration to be paid as the value of the premises with the 
 incumbrance.' 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 f in one State, at least, 
 
 not be broken if the high-way merely bounds instead of traverses the premises. 
 Frost V. Angier, 127 Mass. 213. Austin street, formerly a private way, was laid 
 out in July, 1882. Part of the premises taken wore 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 cove- 
 nant 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. 
 
 ' Patterson v. Arthur, 9 Watts (Pa.), 152. 
 
 ^Memmert V. McKeeu, 112 Pa. St. 315, whore the alleged incumbrance con- 
 sisted of the stone steps of an adjoining house, which were so constructed as to 
 occupy a part of the sidewalk in front of the plaintiff's house. Kutz v. McCune, 
 22 Wis. 628; 99 Am. Dec. 85, a mill pond of many years standing. Haldane v. 
 Sweet, 55 Mich. 196, an alley. James v. Jenkins, 34 Md. 1; 6 Am. Rep. 300 
 Here the question was whether the right of an adjoining proprietor to forbid the 
 erection of a wall on the granted premises to such a height as to obstruct the 
 light and air from his windows, constituted a breach of a covenant of special 
 warranty in a conveyance of such premises. Mr. Justice Alvby, 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 
 
COVENANT AGAINST INCUMBEANOES. 301 
 
 they are restricted to the single case of a purchase with notice 
 of a public highway through the premises;'' and in others they 
 are rejected altogether, upon the ground that notice of an 
 incumbrance at the time of the conveyance cannot affect 
 the right to recover on a covenant against incumbrances.^ In a 
 recent well-considered case in Pennsylvania' 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 
 
 the appellant purchased the property overlooked by them, it is hut rational to 
 conclude that he contracted with reference to that condition of the property, 
 and that the price was regulated accordingly. The parties, in the absence of 
 anything to the contrary, are presumed to have contracted with reference to the 
 then state and condition of the property, and if an easement to which it is subject 
 be 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 had 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 Wash- 
 burn on Easements, 68, and approving Patterson v. Arthur, 9 Watts (Pa.), 154. 
 See, also, Newbold v. Peabody Heights Co., 70 Md. 493; 17 Atl. Eep. 373. Con- 
 structive notice of a building restriction from the recoi>d of a deed in which it is 
 contained does not affect the right of a subsequent grantee to recover on a cove- 
 nant 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, disapprov- 
 ing Kutz V. McCune and Memmert v. McKeen, supra. 
 
 ' Van Wagner v. Van 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., 73 Iowa, 738; 33 N. W. Rep. 471. Morgan v. Smith, 19 111. 199. But- 
 ler V. Gale, 37 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. Tay- 
 lor, 118 Ind. 540; 16 N. E. Rep. 588. In this case it seems that the right of way 
 had been condemned but not opened. Poster v. Foster, 62 N. H. 533. See, also, 
 cases cited, ante, p. 398, 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 [5th ed.], § 76, note 3), where the thing 
 complained of is really an incumbrance, but loses its application where the ques- 
 tion is whether such thing is in fact an incumbrance. 
 
 s Memmert v. McKeen, 112 Pa. St. 330. 
 
302 MARKETABLE TITLE TO REAL ESTATE. 
 
 former ; a public road or right of way of the latter. "Where incum- 
 brances 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.' Such incum- 
 brances are usually of a temporary character and capable of removal ; 
 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 covenant. 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.^ 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 liave had knowledge of it. In such 
 and similar cases there is the further presumption that if the incum- 
 brance 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 afEecting 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.' And where the owner of two 
 
 ' Cathcart v. Bowman, 5 Pa. St. 317; Funk v. Voneida, 11 Serg. & R. (Pa.) 
 109; 14 Am. Dec. 617. 
 
 ' Patterson v. Arthur, 9 Watts (Pa.), 152. 
 
 = Dunklee v. Wilton R, Co., 4 Post. (N. H.) 489. In this case the plaintiff 
 conveyed to the defendants a right of way for their railroad, which intersected a 
 mill race owned by the plaintiff. The action was to recover damages from the 
 defendant for building a culvert at a point which caused a deflection and less 
 ready dischaage 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 cove- 
 nant against incumbrances in the plaintiff's deed, and, therefore, that he was not 
 estopped by such covenant to maintain the action. 
 
COVENANT AGAINST INCUMBRANCES. 303 
 
 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.^ 
 
 It is suggested, with diffidence, that it is immaterial, so far as the 
 mere question of damages is concerned, whether a highway or other 
 easement of which the purchaser had notice, shall be 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 appear 
 that the easement is a benefit instead of a burden to the premises, 
 there is no loss or injury to the grantee.^ 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, 
 C0uld be regarded as a technical breach of the covenant so as to 
 entitle the plaintiff to a judgment for costs. 
 
 § 128. ASSIGNABILITY OF THE COVENANT AGAINST INCTJM- 
 BE/..NCES. 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 as 
 soon as made,, if, at the time of the covenant, there be an incum- 
 brance on the premises, and that, consequently, all rights of action 
 for breach of contract being incapable of assignment at common 
 
 'Janes V. Jenkins, 34 Md. 1; 6 Am. Rep. 300. Seymour v. Lewis, 2 Beas. 
 (N. J.) 439. Harwood v. Benton, 33 Vt. 724. 
 
 = Hymes v. Bsty, 183 N. Y. 342; 81 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 incum- 
 brances. Also, that parol evidence may be received as to the nature of the 
 alleged incumbrance, and that the question whether the same be or be not in fact 
 an incumbrance, is not a mere abstract question of law, but a question of fact, to 
 be determined by the jury upon consideration of all the surrounding circum- 
 stances, 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 v. Chace, 140 Mass. 471; 5 N. E. 
 Rep. 806, where it was said that the construction of a deed, and the operation 
 and extent of the covenants therein contained 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 incumbrances was intended by the deed. 
 
304 MARKETABLE TITLE TO REAL ESTATE. 
 
 law and by the statute 32 Hen. VIII, c. 2i, a grantee of the cove- 
 nantee, or one claiming under him, could bring no action at law in 
 his own name for the breach ; in other words, that the covenant 
 against incumbrances does not run with the land.' 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 
 indemnity of him into whose liands the land may pass.^ A distinc- 
 tion has also been made between a covenant " that the land is free 
 from incumbrances," and one that the covenantee "shall quietly 
 enjoy the &2iXq.q, free from incumbrances" it being considered that 
 in this form the covenant is pros25ective and runs with the land.^ 
 As a general rule tlie cases which decide that the covenant of 
 seisin does not run with the land, apply the same rule to the cove- 
 nant against incumbrances, and the reader is referred to the remarks 
 in this work on the assignability of the covenant of seisin, and to the 
 cases there cited, as being, in the main, applicable to the covenant 
 
 ' See, generally, the cases cited to the proposition that a covenant of seisin does 
 not run with the land, ante. § 111. See, also, Lawrence v. Montgomery, 37 Cal. 
 183. Heath v. Whidden, 24 Me. 383. Mygatt v. Coe, 134 N. Y. 212; 26 N. E. 
 Rep. 611. Stewart V. Drake, 9 N. J. L. 139; Garrison v. Sandford, 13 N. J. L. 
 261. Blondeau v. Sheridan, 81 Mo. 54.5. Osborne v. Atkins, 6 Gray (Mass.), 423; 
 Smith V. Richards, (Mass.) 18 N. E. Rep. 1133. Guerin v. Smith, 62 Mich. 369; 
 38 N. W. Rep. 906. Smith v. Jefts, 44 N. H. 483. Fuller v. Jillette, 9 Biss. 
 (U.S.) 296, obiter. 
 
 ' See cases cited ante, § 112, to proposition that covenant of seisin runs with 
 the land. See, also. Cole v. Kimball, 53 Vt. 639. "Walker v. Deaver, 5 Mo. App 
 139; Alexander v. Schreiber, 13 Mo. 371; Winningham v. Pennock, 36 Mo. App 
 688. Sage v. Jones, 47 Ind. 123. This case holds also that the grantor cannot 
 at the time of conveyance reserve, by parol, the right to recover for a breach of 
 the incumbrance. 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 G.rat. (Va.) 353; Sheffey v. Gardner, 79 Va. 313. 
 
 sRawle Govts. §§70, 213. In Brisbane v. :McCrady, 1 Nott & McC. (S. C.) 
 104, it was held that a covenant that the land was free from incumbrances was 
 equivalent to a covenant that the grantee should quietly enjoy the premises /«« 
 from incumbrances, and being thus prospective in its character, would pass with 
 the land to a subsequent grantee. See, also, Jeter v. Glenn, 9 Rich. L. (S. C.) 
 376. 
 
COVENANT AGAINST INCUMBRANCES. 305 
 
 against ineumbrauces.^ In several of the States, however, in which 
 it is held that a covenant of seisin does not run with the land, a sub- 
 sequent grantee of the land has been permitted to recover for a 
 breach of the covenant against incumbrances.' 
 
 The rule that a covenant against incumbrances does not run with 
 the land, is comparatively unimportant where the deed contains 
 
 ' Ante, p. 365. 
 
 2 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 Massachusetts. It has been 
 intimated there, however, that the same rule would not apply in the case of a 
 breach of the covenant against incumbrances. In Sprague v. Baker, 17 Mass. 
 589, it was said by Wilde, J.; "There was a breach of the covenant (against 
 incumbrances), it is true, before the assignment; but for this breach the cove- 
 nantee could only have recovered nominal damages. The actual damages 
 accrued after assignment. They were sustained by the assignee, and not by the 
 covenantee, who has no interest in them, except what arises from his covenants 
 with the assignee. But suppose there had been no such covenants, or suppose 
 the covenantee to be insolvent; then unless the assignee can maintain the present 
 action he is without remedy. This certainly would not be right; nor do I think 
 that such is the law. It seems to me that, if the present case required a decision 
 upon that point, we might be well warranted in saying that the covenant against 
 incumbrances, 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 
 the actual damages from a breach of the covenant of seisin has 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 disregarded 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. 
 39 
 
306 MARKETABLE TITLE TO EEAL ESTATE. 
 
 also a covenant of warranty, whicli, of course, must always be the 
 case in those jurisdictions in whicli by statute or judicial construc- 
 tion, a covenant of warranty includes a covenant against incum- 
 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 dispossession, and in either case recover for breach of the 
 ■warranty, regardless of the covenant against incumbrances.' 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.^ 
 
 Of course if the damage from a breach of the covenant against 
 incumbrances accrue, that is, if the incumbrance be enforced, before 
 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.^ 
 
 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.^ 
 
 § 129. MEASTJBE OF DAMAaES. General Kules. Incumbrances 
 are of two kinds, namely : (1) Pecuniary, or those which the 
 debtor, his creditors and purchasers from him, have a right to 
 remove after maturity by payment of the debt which the incum- 
 brance secures, such as a mortgage, deed of trust, judgment or 
 
 ' Worley v. Hineman, (Ind.) 33 N. E. Rep. 260. 
 
 ' Tufts V. Adams, 8 Pick. (Mass.) 549; Thayev v. Clemence, 32 Pick. (Mass.) 
 490. Lloyd v. Quimby, 5 Ohio St. 262. 
 
 ^Frink v. Bellis, 83 Ind. 185- 5 Am. Rep. 193. 2 Sugd. Vend. (8th Am. ed.) 
 577 (2.37). 
 
 ■• Andrews v. Appel, 22 Hun (N. Y.), 429. This was an action on a covenant 
 against incumbrances brought, by the last grantee, after several mesne convey- 
 ances. 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 incum- 
 brance, 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 succes- 
 sive conveyance. 2 Story Eq. § 1040. 
 
COVENANT AGAINST INCUMBKANCES. 307 
 
 other lien.' (2) Permanent, or those which cannot be removed 
 without the consent of him who has the riglit, such as an outstand- 
 ing life estate, an unexpired lease, a right of way, easement, build- 
 ing restriction or the like. If the breach of the covenant against 
 incumbrances consist in the existence of a pecuniary incumbrance 
 iipon the estate the convenantee can recover no more than nominal 
 damages if he has not been disturbed in the enjoyment of the 
 estate or has paid notliing or sustained no loss on account of the 
 incumbrance.'' But he will be entitled to nominal damages though 
 
 ' As to the right of a purchaser or creditor to pay off an incumbrance and be 
 subrogated to the rights of the incumbrancer, see Sheldon on Subrogation, § 29 
 et seg. 
 
 ' Sedg. Dam. p. 953; Rawle CoTt. (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, 87 N. Y. Super. Ct. 79, distinguishing 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, 12Mass. 
 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. Musohe, 39 Mich. 101; Nor- 
 ton V. Colgrove, 41 Mich. 544. Eaton v. Lyman, 30 Wis. 41, DixoN, C. J., dis- 
 senting, held that the covenantee could not even recover nominal damages. 
 
 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 defect in the title, the pur- 
 chaser 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 opportu- 
 nity to sell. This question was raised in McCarty v. Leggett, 3 Hill (N. Y.), 134, 
 but was not decided, the judgment of the court below having been reversed, and 
 the case sent back on other grounds. A practical inconvenience, however, result- 
 ing from a recovery. of, damages in such a. case would be that the recovery would 
 
308 MARKETABLE TITLE TO EEAL ESTATE. 
 
 the incumbrance was paid off before his action was commenced.* 
 In Massacliusetts 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.^ 
 
 It seems that a judgment for nominal damages for a breach of the 
 covenant against incumbrances will operate as a bar to any future 
 recovery upon the covenant, after actual damages shall have been 
 sustained.^ Practically the rule is of no great importance, inasmuch 
 as an action upon the covenant will seldom or never 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,* 
 provided the grantor has refused to remove the incumbrance after 
 notification and request.^ But in such case he can recover as dam- 
 satisfy the breach, it is apprehended, and the judgment might be pleaded in 
 bar of any further action in case the incumbrance should be enforced, or the 
 covenantee evicted, Rawle Covt. (5thed.)gl89. If, however, he should remove 
 the incumbrance, there seems to be no reason why the covenantee should not, 
 in addition to the amount paid for that purpose, recover damages for wlmt- 
 ever actual inj ury he may have sustained from its existence, provided the total 
 recovery do not not exceed the consideration money and interest. In Harrington 
 V. Murphy, 109 Mass. 399, 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 incumbrance. 
 
 ' Smith v. Jefts, 44 N. H. 483. In Harwood v. Lee, (Iowa) 52 N. W. Rep. 521, 
 the court refused to reverse a judgment merely for failure to give nominal dam- 
 ages for a breach of the covenant against incumbrances. 
 
 « Comings v. Little, 34 Piclc. (Mass.) 366. 
 
 » Rawle Govts, for Title (5th ed.), §§ 176, 189. Taylor v. Heitz, 87 Mo. 660. In 
 Eaton V. Lyman, 30 Wis. 41, it was held that the plaintiff was entitled to nomi- 
 nal 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 dajnages sustained. 
 
 *Hall V. Dean, 13 Johns. (N. Y.) 105. 
 
 'Greene v. Tallraan, 20 N. Y. 191; 75 Am. Dec. 384. Here the Incumbrance 
 complained of was a species of quit rent due the city of New York. The court. 
 
COVENANT AGAINST INCUMBRANCES, 309 
 
 ages no more than the amount actually and fairly paid to discharge 
 the incumbrance,' together with compensation for his trouble and 
 expenses incurred in that behalf.^ He will be entitled to that 
 amount as damages even though paid after the institution of his 
 action on the covenant,^ or before the incumbrance was due.'* The 
 
 by Stkong, J., said, that in ordei' to avail himself of the discharge of the incum- 
 brance 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 authorities 
 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 riglit, 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 prem- 
 ises, he cannot have relief against his contract to pay the purchase money, or 
 any part of it, on the ground of defect of title. The reason is, that the incum- 
 brance may not, if let alone, ever be asserted against the purchaser, as it may be 
 paid off or satisfied in some other way." 
 
 ' 3 Washb. Real Prop. (4th ed.) 495; Sedg. Dam. 198; Rawle Govt. (.5th ed.) § 193; 
 4 Kent. Com. (11th ed.) 563. Delavergne v. Norris, 7 Johns. (N. Y.) 3.58; 5 Am. 
 Dec. 281; Braman v. Bingham, 36 N. Y. 483, 494. Prescott v. Trueman, 4 Mass. 
 627; 3 Am. Dec. 249; Smith v. Carney, 127 Mass. 179; Coburn v. Litchfield, 132 
 Mass. 449. Davis v. Lyman, 6 Conn. 235, obiter. Cole v. Kimball, 53 Yt. 639; 
 Downer v. Smith, 38 Vt. 464. Willson v. Willson, 5 Fost. (N. H.) 239; 57 Am. 
 Deo. 320. Keed 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. 436. Guthrie v. 
 Russell, 46 Iowa, 269; 26 Am. Rep. 135. Pillsbury v. Mitchell, 5 Wis. 17. 
 Where the covenantee discharged a mortgage on the premises executed to secure 
 a debt, and to indemnify the mortgagee against certain liabilities, but paid noth- 
 ing on account of the liabilities in question, it Avas held that he was only entitled 
 to recover, as damages, the amount he had actually paid out. Comings v. Little, 
 24 Pick. (Mass.) 266. 
 
 5 Willson V. Willson, 5 Fost. (N. H.) 329; 57 Am. Dec. 330. Lost time, legal 
 expenses and car fares incurred in removing from the record an apparent 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 incumbrances. Bradshaw v. 
 Crosby, (Mass.) 24 N. E. Rep. 47. 
 
 3 Brooks V. Moody, 20 Pick. (Mass.) 475. Kelly v. Lowe, 18 Me. 244. Mosely 
 V. Hunter, 15 Mo. 323. 
 
 < Snyder v. Lane, 10 Ind. 424. 
 
310 MAEKETABLB TITLE TO EEAL ESTATE. 
 
 covenantee is not necessarily entitled to recover as damages the 
 whole sum paid by him to remove an incumbrance on the premises^ 
 even tliough 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.^ Of course, if it should appear that the 
 incumbrance removed was the first lien on the premises, and 
 could have been satisfied in full if enforced, and the covenantee 
 had paid the full face value of the incumbrance, it is appre- 
 hended that such payment would be deemed fair and reason- 
 able, for it is to be presumed that no creditor would part with a 
 solvent security for less than its face value. But in any case in 
 which it might appear that the incumbrance, either because a junior 
 lien^ or because the premises had decreased in value, or for any 
 other reason, was not worth the sum paid to remove it, the grantee 
 must show that the sum so paid was the fair and reasonable value of 
 the incumbrance. 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 incum- 
 brances. The reason is that if he were permitted to recover sub- 
 stantial damages without extinguishing the incumbrance he might 
 be in a position to perpetrate a fraud upon the covenantor by trans- 
 ferring his notes secured by the incumbrance to innocent purchasers 
 for value before maturity.^ 
 
 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.* This rule 
 seems eminently fair and reasonable, since it prevents the covenantee 
 from recovering the consideration money and interest from the 
 covenantor, and then regaining the estate by redeeming it with a 
 smaller sum. The earlier Massachusetts cases hold that in case of 
 eviction under an incumbrance the measure of damages is the pu.r- 
 
 1 2 Devlia on Deeds, § 919. Gilbert v. Rushmer, 49 Ivans. 633; 31 Pac. Rep. 
 133. Anderson v. Knox, 20 Ala. 156, Guthrie v. Russell, 46 Iowa, 369; 36 Am. 
 Rep. 125. 
 
 ' As in Gilbert v. Rushmer, 49 Kans. 682; 31 Pac. Rep. 123. 
 
 3 Harwood v. Lee. (Iowa) 52 N. W. Rep. 521. 
 
 * Ante p. 309. The rule was so stated in an early edition of Mr. Rawle's Cove- 
 nant for Title, but in the last edition of that valuable treatise (5th ed., § 183) it has 
 
COVENANT AGAINST INCUMBRANCES. 311 
 
 chase money and interest/ and there are several decisions to the 
 same effect in other States,^ but it does not in them appear that the 
 covenantee had a riglit to redeem, or that the limitation of his dam- 
 ages to tlie redemption money was demanded by the defendant. 
 ISTo duty, however, devolves upon the covenantee to discharge the 
 incumbrance before it is enforced,^ or to redeem the premises after 
 enforcement,* and his failure to redeem, by reason of which the title 
 of the purchaser under the incumbrance becomes absolute, will not 
 affect his right to recover the consideration money and intei-est as 
 damages. Nor will the measure of his damages be affected by the 
 fact that he bought with notice of the incumbrance.^ Evidence of 
 the purposes for which the covenantee bought the premises, e. g., as 
 a speculation, is inadmissible for the purpose of aggravating the 
 damages," unless it can be shown that the intention witli which 
 the premises were bought was known to the other party and entered 
 into the consideration of the sale.' 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.^ 
 
 § 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 j)ur- 
 chase price of the land with interest. This limitation of the rule 
 
 fallen a sacrifice to the author's favorite theory that the covenantee cannot he 
 deprived of his right to damages by the subsequent acquisition of a perfected 
 title to the estate. 
 ' Chapel V. Bull, 17 Mass. 313; Jenkins v. Hopkins, 8 Pick. (Mass) 346. 
 
 2 Waldo V. Long, 7 Johns. (jS. Y.) 173; Bennet v. Jankins, 13 Johns. (N. 
 Y.) 50. Stewart v. Drake, 4 Halst. (N. J.) 189. King v. Kerr, 5 Ohio, 155; 23 
 Am. Deo. 777. 
 
 3 Bank v. Clements, 16 Ind. 133. 
 
 " Sanders v. Wagner, 33 N. J. Eq. 506. 
 
 ' Mohr v. Parmelee, 43 N. Y. S, C. 330. Snyder v. Lane, 10 Ind. 434; Medler 
 v. Hiatt, 8 Ind. 171. 
 
 ^Batchelder v. Curtis, 3 Cush. (Mas^.) 304. Greene v. Creighton, 7 R. I. 10. 
 
 ' Foster v. Foster, 62 N. H. 46. 
 
 8 Stewart v. Drake, 4 Halst. (N. J.) 139. 
 
312 MARKETABLE TITLE TO EEAL ESTATE. 
 
 lias been recognized in most of the States in which it has been con- 
 sideredJ In Missouri, however, it has been rejected.^ In Massa- 
 chusetts it lias been held that the recovery cannot exceed the value 
 of the land at the time the incumbrance was removed,' 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 con- 
 sideration monej and interest, of course denies to the plaintiff any 
 recovery for the value of improvements placed by him on the land. 
 Incumbrances must appear of record in order to bind the property 
 at the time of purchase, and if the plaintiff improved the estate 
 without examining the title, the loss of the improvements is the 
 
 > 4 Kent Com. (11th ed.) 563; Rawle Govt. § 193. Dimmick v. Lockwood, 10 
 Wend. (K. 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. Cow- 
 gcr, 52 Ark. 322; 12 S. W. Rep. 702. Kelsey v. Remer, 43 Conn. 129; 21 Am. 
 Kep. 638. Poote v. Burnet, 10 Ohio, 333; 36 Am. Deo. 90; Nyce v. Obertz, 17 
 Ohio, 77; 49 Am. Dec. 444. Eaton v. Lyman, 30 Wis: 41. Willetts v. Burgess, 
 34 111. 494, obiter. Ivuadler 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.) 375. 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 expendi- 
 ture the grantee might be required to make in order to protect his title, -iwt 
 exceeding tlie pmxlutsh money and intcrc.it, he might properly make and demand its 
 return from the grantor, etc. In Hawthorne v. CUty Bank, 84 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 appearing 
 of record hut not existing in fact, and was not intended to change the rule limit- 
 ing the damages for a breach of the covenant to the consideration money. 
 
 ' Walker v. Deaver, 5 Mo. App. 139, where it was held that the covenantee is 
 entitled to recover what he fairly and reasonably paid to remove the incum- 
 brance, 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, Avas expressly disapproved. See, also, Hender- 
 son V. Henderson, 13 Mo. 151; St Louis v. Bissell, 46 Mo. 157; Winningham v. 
 Pennock, 36 Mo'. App. 688. 
 
 2 Norton v. Babcock, 2 Met. (Mass..; 510. 
 
COVENANT AGAINST INCUMBRANCES. 313 
 
 result of his own negligence.' 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.^ 
 
 § 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,^ the measure of 
 which will be, as a general rule, the difference between the present 
 value of the premises and their fair market value without the 
 
 ' Dimmick v. Lockwood, 10 Wend. (N. Y.) 143. 
 
 ' Pillsbury v. Mitchell, 5 Wis. 17, citing De For v. Leete, 16 Johns. (N. Y.) 
 122. Funk v. Voneid^, 11 S. & R. (Pa.) 109; 14 Am. Dec. 617. Tufts v. Adams, 
 8 Pick. (Mass.) 549. 
 
 5 3 Washb. Real Prop. (4th ed.) 495; Sedg. Dam. (6th ed.) 199; Rawle Govt, 
 291. Prescott v. Trueman, 4 Mass. 630; 3 Am. Dec. 249; Harlow v. Thomas, 
 15 Pick. (Mass.) 69. 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 damage 
 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 damages for a 
 breach of the covenant against incumbrances resulting from a building restriction 
 is the actual impairment of the value of the estate because of the incumbrance. 
 Foster v. Foster, 62 N, H. 46. In Kellogg v. Malin, 63 Mo. 429; 11 Am. Rep. 
 436, 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 in j ury from the incumbrance, and 
 that if he removed the incumbrance he was entitled to recover what he paid for 
 that purpose, if reasonable, continued: "When, however, the 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 easement or servitude, an existing lease or the like, it is said that the dam- 
 ages are to be estimated by the jury according to the injury arising from its con- 
 tinuance. There is a good reason for the distinction. In case of an incumbrance 
 by an ordinary lien or mortgage, the grantee may pay off the 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 unextingnishable by any act of the parties, either grantor or 
 •^rantee, and if its continuance is permanent the damages must be assessed 
 acoordino-ly.'' In Greene v. Creighton, 7 R. 1. 10, it was held that the covenantor 
 40 
 
314 MAEKETABLE TITLE TO EEAL ESTATE. 
 
 incumbrance.' If the incumbrance consist of an unexpired lease of 
 the premises, the wliole purchase money cannot be recovered as 
 damages.^ In such a case it has been held tliat the annual value 
 of the land, or tbe interest on the purchase money, is the proper 
 rule of damages.^ 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 be may have suffered, to be 
 determmed 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.* If the covenantee has 
 been kept out of the estate by a life tenant, the measure of damages 
 will be the value of the estate for the time that he has been deprived 
 of its enjoyment.^ 
 
 The fair annual rent of the premises will, in the absence of evi- 
 dence to the contrary, be taken to be that paid by the tenant in 
 possession.* If the incumbrance consist of a present oiitstanding 
 
 will not be liable for damages arising from tbe 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. 8. C. 320. In Kos- 
 tenbader 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, lOS) 
 111. 46. An annuity charged upon the premises in favor of a widow is not a per- 
 manent 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 payments thereon. Myers v. Brodbeck, 110 Pa. St. 
 198; 5 Atl. Rep. 662. 
 
 ' 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. 
 
 2 Rickert v. Snyder, 9 Wend. (N. Y.) 423. 
 
 3 Rickert v. Snyder, 9 Wend. (N. Y.) 428. Porter v. Bradley, 7 R. I. 543. 
 Moreland v. Metz, 24 W. Va. 187; 49 Am. Rep. 246. 
 
 ■" Batchelder v. Sturgis, 3 Cush. (Mass.) 204, disapproving Rickert v. Snyder, 
 supra. 
 '- Christy v. Ogle, 33 111. 296. 
 'Moreland v. Metz, 24 W. Va. 137; 49 Am. Rep. 346. 
 
COVENANT AGAINST INCUMBRANCES. 315 
 
 life estate it has been held that the value of that estate, as governed 
 by the probable duration of the life of tlie tenant, is the measure of 
 the plaintiff's damages, and that the jury may make use of approved 
 tables of longevity in computing the damages.' It may be observed 
 here that wherever, as in the case just mentioned, 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 judg- 
 ment for the value of the estate up to the time of verdict, and after 
 the estate lias expired maintain 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 covenant against incumbrances, and the judg- 
 ment for the annual value of the estate accrued at that time would 
 be a bar to any further action for the same breach.^ 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.^ But the 
 fact that an easement or servitude was extinguished without expense 
 to the plaintiff before action brought, will not of necessity deprive 
 him of the right to substantial damages. He may have been jjre- 
 vented from improving the estate, or may have been otherwise 
 injured by the existence of the incumbrance. He is entitled to com- 
 pensation for wiiatever actual damage he may have suffered.* 
 
 § 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 
 
 ' Mills V. Catlin, 33 Vt. 98. 
 
 ' Rawle Covt. § 189. Taylor v. Hertz, 87 Mo. 660. But a judgment for nomi- 
 nal damages in an action for breach of the covenant against incumbrances is no 
 bar to an action on a covenant of warranty, contained in the same conveyance, 
 brought after the incumbrance was enforced and the plaintiff evicted. DonnelL 
 v. Thompson, 1 Fairf. (Me.) 170; 25 Am. Dec. 316. 
 
 ^Rosenberger v. Keller, 33 Grat. (Va.) 493. 
 
 ^Wetherbee v. Bennett, 3 Allen (Mass.), 438, H0.4.R, J., saying: "The incum- 
 brance was a right of way over the land, which subsisted at the time of the con- 
 veyance 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. 
 
316 MAEKETABLE TITLE TO REAL ESTATE. 
 
 the plaintiff, and save him harmless from incumbrances ; the plain- 
 tiff must go further and set forth the incumbrance which produces 
 the breach ;' that is, he must describe the incumbrance, giving 
 name, date, amount and other particulars of description, but, of 
 course, without reciting the instrument in so many words.^ It is 
 necessary that the incumbrance be substantially described, in 
 order that the court may determine whether it be in fact an incum- 
 brance.^ If the declaration be upon a special or limited covenant, 
 it will be fatally defective if it does not allege that the incumbrance 
 complained of originated from, by, or under the grantor.* If the 
 plaintiff has extinguished the incumbrance, he must aver that fact 
 in the declaration f and the declaration will be bad on demurrer if 
 
 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 fol- 
 low from these facts that no actual damage had been sustained. While the right 
 of way lasted the plaintifE was precluded from using the part of the land covered 
 by the way as fully as he might otherwise have done. He could not set a tree 
 or a post or a building upon it, or sell or lease it to any person to whom such an 
 incumbrance would be objectionable. It was an apparently permanent subtrac- 
 tion from the substance of the estate." But see Herrick v. Moore, 19 Me. 313, 
 where it was held that if a country road, being an incumbrance on the land, was 
 discontinued without expense to the plaintifE before he brought his action, he 
 could recover onl}' nominal damages. 
 
 'Marstonv. Hobbs, 3 Mass. 433; 3 Am. Dec. 61; Bickford v. Page, 3 Mass. 
 455. jMills 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. Bruns v. 
 Schreiber, (Minn.) 51 N. W. Rep. 120. 
 
 2 Duval V. Craig, 3 Wh. (U. S.) 45. Morgan v. Smith, 11 111. 200. It would be 
 unsafe to set forth the incumbrance in hcec verba, because if not accurately 
 described, there would be no variance. In an action on a covenant against 
 incumbrances where the breach alleged is an outstanding tax, a variance 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 particu- 
 larly described in each, though by different words. Mitchell v. Pillsbury, 5 
 Wis. 410. 
 
 3 Verbis V. Forsyth, 4 Biss. (0. C.) 409. 
 
 " Mayo V. Babcock, 40 Me. 143. The incumbrance complained of here was 
 taxes on the premises. The declaration did not allege that they were assessed 
 while defendant was the owner of the property. 
 
 ' Ante, p. 313. Pillsbury v. Mitchell, 5 Wis, 23. De Forest v. Leets, 16 Johns. 
 (N. y.) 133. The reason of this rule is, that inasmuch as no actual damage 
 
COVENANT AGAINST INCUMBKANCES. 317 
 
 he fails to allege that he has not been reimbursed by the grantor.'^^ 
 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.^ 
 
 The burden of proof will be on the plaintiff to estabhsh the exist- 
 ence of the incumbrance,' and to show that it was a valid and sub- 
 sisting lien at the time of the conveyance.'' 
 
 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.'' 
 
 necessarily results from a breach of the covenant against incumbrances, it must, 
 if sustained, be specially laid to prevent surprise. 
 
 ' Kent V. Cantrell, 44 Ind. 452. 
 
 = Spencer v. Howe, 36 Conn. 200. 
 
 « Jerald v. Elly, 51 Iowa, 321; 1 N. W. Rep. 639. 
 
 *Abb. Tr. Ev. 520. Kirkpatrick v. Pearce, 107 Ind. 520; 8 N. E. Rep. 573, 
 citing Cook v. Puson, 66 Ind. 521, and other Indiana cases. 
 
 * Patterson V. Yancey, 81 Mo. 379. -The rule requiring the best evidence makes, 
 the production of the deed necessary. 
 
CHAPTEE Xiy. 
 
 COVENANTS OP WARRANTY AND FOR QUIET ENJOYMENT. 
 
 FORM. § 134. 
 
 CONSTRUCTION AND EFFECT. § 135. 
 aUALIFICATIONS AND RESTRICTIONS. § 136. 
 WHEN IMPLIED. § 137. 
 PARTIES BOUND AND BENEFITED. 
 Married women. § 138. 
 
 Heirs and devisees. Joint covenantors. § 139. 
 Personal representatives. § 140. 
 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. 
 
 Mnti'y hy 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 inccvrporeal rights. § 1 52. 
 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. 
 Q,uit claim passes benefit of covenant. § 157. 
 Immediate covenantee must have been damnified. § 158. 
 Remote assignee may stie 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. § 168. 
 Covenant extinguished by reconveyance to covenantor. § 168. 
 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. 
 
COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 319 
 
 liOss 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 uEauEST to defend. § 175. 
 
 PLEADING AND BURDEN OF PROOF. § 176. 
 covenant for aUIET ENJOYMENT. § 177. 
 
 § 134. GENERAL OBSERVATIONS. FORM OF THE COVENANT. 
 
 The modern covenant of warranty is derived from the ancient com- 
 mon-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 premises.' It 
 could be created only by deed'^ and by the use of the technical word 
 warrant, the formula being, " I and my heirs will warrant.'" 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 
 otlier 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.^ 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 damages may be maintained.' And 
 with the disuse of warranty these ancient remedies have also dis- 
 appeared in that country. 
 
 The modern covenant of warranty is peculiar to the American 
 
 1 Co. Litt. 365a. Stout v. Jackson, 2 Rand. (Va.) 142. 
 
 = Co. Litt. 386a. 
 
 ' Ego et Jmredes mei warrantizabimus in perpetuum. Bac. Abr. Warranty M. 
 Tabb v. Binford, 4 Leigh (Va.), 140 (150); 36 Am. Dec. 317. 
 
 ■" Stout V. Jackson, 3 Rand. (Va.) 132. 
 
 sPaxson V. Lefferts, 3 Rawle cPa.), 68, n., citing Fitzh. Nat. Brev. 135 H.; 
 Id. 815. 
 
 * The covenant of warranty is not found among those enumerated by .Sir 
 Edward Sugden. See Sugd. Vend. (8th Am. ed.) eh. 14, § 3. 
 
320 MARKETABLE TITLE TO REAL ESTATE. 
 
 States, being unemployed in England,^ where its place is taken by 
 the covenant for quiet enjoyment. No 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 
 uusuited 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.^ 
 
 The modern covenant of warranty can, like the ancient warranty, 
 
 > 3 Washb. Real Prop, 466 (660); Rawle Govts. (5tli ed.) ch. 8. 
 
 ' Townsend v. Morris, 6 Cow. (N. Y.) 123, a leading case. Chapman v. 
 Holmes, 5 Halst. (N. J. L.) 24. Stout v. Jackson, 2 Rand. (Va.) 132. See the 
 erudite cpiuions of Green and Coaltbk, JJ., in this case, in which the nature 
 of the real actions of voucher and warrantia chartm, 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 v. Bell, 3 Bibb (Ky.), 173; 
 6 Am. Dec. 641. Jourdain v. Jourdain, 9 Serg. & R. (Pa.) 376; 11 Am. Dec. 34. 
 Stewart v. West, 14 Pa. St. 336. The American doctrine and practice upon this 
 point is fairly represented by the following extract 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 regard to a war- 
 ranty 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 covenairt, 
 and ought, we apprehend, to be still so considered. But there are other consid- 
 erations 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 chartcs has become obsolete." 
 
COVENANTS OF WAEEANTY ANB FOE QUIET ENJOYMENT. 321 
 
 be created only by deed.^ A covenant in an instrument, in form a 
 deed, but in fact a will, cannot be treated as a covenant of warranty, 
 and, therefore, is not broken by a subsequent conveyance on the 
 part of the maker of the instrument.^ It is not necessary, however, 
 that the covenant should appear in any particular part of the deed.'' 
 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.'' If a person, 
 under a fictitious or assumed name, execute a conveyance, he will, 
 under his real name, be bound by the covenants for title therein 
 contained.' 
 
 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." The covenant of 
 general warranty is usually thus expressed : " The said (grantor) 
 covenants that he, his heirs and personal representatives, 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 covenant 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 or under him." In some of the 
 States, these forms may, by statute, be greatly abbreviated, a cove- 
 nant that the grantor " will warrant generally the property hereby 
 conveyed," or a mere conveyance " with general warranty," being 
 given the force and effect of a full covenant of warranty. In the 
 sanae way, the grantor may " warrant specially " the property con- 
 veyed, or convey " with special warranty," and these forms will be 
 given the same effect as a covenant of special warranty expressed 
 
 ' Scott V. Scott, 70 Pa. St. 244. 
 
 ■' Scott V. Scott, 70 Pa. St. 244. 
 
 "Midgett V. Brooks, 18 Ired. L. (N. C.) 145, 148; 55 Am. Dec. 405. 
 
 ■•Piatt Govts. 136. Coster v. Monroe Mfg. Co., 1 Gr. Ch. (N. J.) 478. 
 
 'Preiss v. Le Poidevin, 19 Abb. N. Cas. (N. Y.) 123. 
 
 ' See ante, p. 143, for form of general and special covenants of warranty. 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 warranty. 
 
 Little v. Allen, 56 Tex. 133. The word "warrant" is not Indispensable in a 
 
 41 
 
322 MARKETABLE TITLE TO EEAL ESTATE. 
 
 at full length.' 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 cove- 
 nant.'' 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 
 thereafter 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.^ 
 
 § 135. CONSTBTJCTION 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.* But in 
 
 covenant of warranty. A covenant to " defend " the title against the claims of 
 all persons, etc., is sufficient. Kirkendall v. Mitchell, 3 McL. (U. S.) 144. 
 
 ' See Va. Code, 1887, § 2446. 
 
 » Piatt Govts 28; Rawle Govts. (5th ed.) § 22, notes. Johnson v. Hollensworth, 
 48 Mich. 140. Gole v. Lee, 30 Me. 392; citing 4 Gruise, 447, 449. Lant v. Norris, 
 1 Burr, 390. Buller's N. P. 156, and Cro. James, 391. Trutt v. Spott, 87 Pa. St. 
 339. In Midgett v. Brooks, 13 Ired. L, (N. C.) 145; 55 Am. Dec. 405, the follow- 
 ing language in the habendum ot 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 covenant 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. 137. 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 forever warrant and defend the title," etc. 4 Kent Gom. 493. 
 Athens v. Nale, 25 111. 198. Galdwell v. Kirkpatrick, "i Ala. 60; 41 Am. Dec. 36. 
 The following 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. 
 
 3 Gee V. Moore, 14 Cal. 472; Kimball v. Semple, 25 Cal. 452; Morrison v. Wil- 
 son, 30 Cal. 348. Gole 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. 
 
 ■• So in Iowa, Punk v. Greswell, 5 Iowa, 62; Van Wagner v. Van Nostrand, 19 
 Iowa, 423, and in South Carolina, Evans v. McLucas, 12 S. C. 56. Butte v. RifCe, 
 78 Ky. 353; Smith v. Jones, (Ky.) 31 S. W. Rep. 475. Messer v. Orstrich, 53 
 
COVENANTS OF WAEEANTT AND FOR QUIET ENJOYMENT. 323 
 
 most of the States it is regarded only as a covenant against eviction 
 by one claiming iinder a better title. It is not to be denied, how- 
 ever, that the popular notion of a covenant of warranty it that it is 
 an ample protection against any imperfection in the grantor's title. 
 But this covenant is not a warranty that the title is good. " It has 
 been thought by country scriveners, and even by members of the 
 profession, to contain the elements of all the rest ; but the terms of 
 it are too specific to secure the grantee against every disturbance 
 by those who may have a better title. It binds the grantor to 
 defend the possession against every claimant of it by right, and it is 
 consequently a covenant against eviction only.'"^ The purchaser 
 
 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 war- 
 ranty 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 elsewhere 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, therefore, 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 incumbrances would justifj' the inference that the terms of the con- 
 tract did not give the purchaser the peculiar benefit which such a 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 practice 
 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 sug- 
 gested with great deference that technical rules based upon a diflierent custom of 
 conveyancing lose, to some extent, their application, and to say that ' the pur- 
 chaser 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. 
 
 ' Gibson, C. J. in Dobbins v. Brown, 13 Pa. St. 79, 
 
324 MAEKETABLB TITLE TO EBAL ESTATE. 
 
 should require, as a matter of abundant caution, all of the six cove- 
 nants for title, for there may be occasions 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.' 
 
 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 cove- 
 nant of warranty as if the covenantee had been evicted by one claim- 
 ing 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 cove- 
 nant against incumbrances.^ 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 warranty.^ A 
 judgment for nominal damages for a breach of the covenant against 
 incunibrances is no bar to a suit for breach of warranty after an 
 eviction under the incumbrance.* The general rule, therefore, is, 
 unless varied by statute or custom in particular localities, that the 
 covenant of warranty does not include a covenant against incum- 
 brances.^ The ancient common-law warranty extended only to a 
 freehold estate, that is, an estate of an indeterminate duration. The 
 same rule has been recognized as applicable to the modern war- 
 ranty. ° Practically, however, it would seem unimportant, as a cove- 
 nant for quiet enjoyment is always implied in a conveyance for 
 years, the onlj' estate less than freehold that is of any consequence.'' 
 
 The effect of a covenant of warranty as an estoppel is elsewhere 
 considered in this work'.' 
 
 The covenant of warranty is intended as much for the protection 
 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 
 
 ' As in Wash. City Savings Bank v. Thornton, 83 Va. 157; 2 S. E. Rep. 193. 
 ' King T. Ken-, 5 Ohio, 158: 22 Am. Deo. 777. Post, § 355. 
 ^Bostwickv. "Williams, 36 111. 65; 85 Am. Dec. 385. See, also, Findlay v. 
 Toncray, 2 Rob. (Va.) 374, 379. 
 ^Donnell v. Thompson, 1 Fairf. (ile.) 170; 25 Am. Dec. 216. 
 ' See ante, p . 279. 
 
 5 Co. Litt. 389a; Shep. Touch. 184. Mitchell v. Warner, 5 Conn. 497. 
 'Post, "Implied Covenants," p. 330. 
 •Post, §216. 
 
COVENANTS OF WAEEANTY AND FOE QUIET ENJOYMENT. 325 
 
 taken, that there was an adverse claim to the land.* But a cove- 
 nant 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.' A mere sale 
 and conveyance, however, with general warranty, subject to a prior 
 mortgage, will not of itself be construed as an agreement by the 
 grantee to pay the mortgage as a part of the purchase money. ^ 
 
 Want of consideration is no answer to an action for breach of the 
 covenant of warranty.* 
 
 A covenantee who has been evicted from the demised premises, 
 and who has recovered damages for breach of the warranty, is not 
 bound to reconvey the title ; if justice should require a reconvey- 
 ance, it should be enforced by making the collection of the judg- 
 ment conditional upon a reconveyance.' 
 
 It will be seen hereafter that the covenant of warranty does not 
 amount to a covenant that the title is indefeasible, and that it is 
 broken only by an eviction of the covenantee. Hence, it follows 
 that the Statute of Limitations will not begin to run iipon the cove- 
 nant until an eviction has occurred, there being up to that time no 
 cause of action on the covenant.^ 
 
 ' Barlow v. Delaney, 40 Fed. Rep. 97. Ballard v. Burroughs, 51 Iowa, 81-, 50 N. 
 W. Rep. 74. Rea v. Minkler, 5 Laus, (N. Y.) 196, where the covenant was taken 
 with knowledge that there was a private right of way over the premises. Aber- 
 nathy v. Boaznian, 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 Walwohth: 
 " 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 con- 
 tingent 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." 
 
 2 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, § 121. 
 
 2 Aufricht v. Northrup, 20 Iowa, 61. 
 
 ■* Mather v. Corliss, 108 Mass. 568, 571; Comstock v. Son, 154 Mass. 389; 28 N. 
 E. Rep. 296. 
 
 " Ives V. Niles, 5 Watts (Pa.), 323. 
 
 «Crisfleld v. Storr, 36 Md. 139; 11 Am. Rep. 480. Post, thisch.,p. 343. 
 
326 MARKETABLE TITLE TO EEAL ESTATE. 
 
 Warranty does not extent to quantity. A covenant of war- 
 ranty in a conveyance of lands by metes and bounds or within cer- 
 tain designated limits, and as containing a certain number of acres» 
 is not broken if the lands described do not contain the number of 
 acres mentioned.' 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 posession of, or is evicted from, a portion 
 of the lauds within the given bounds. A deficiency in the acreage, 
 when the sale was by the acre, is the result either of fraud by the 
 vendor or mistake of the parties ; in either of which cases the pur- 
 chaser has his remedy in equity.^ A breach of warranty can only 
 be with respect to the precise lands conveyed by the deed, and parol 
 evidence will be 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.^ And if a deed convey a 
 lot with warranty without reference to or description of the build- 
 ings 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 
 
 1 Rawle Govts. (5tli ed.) § 397. Ricketts v. Dickens, 1 Murph. (N ■ 0.) 343; 4 
 Am. Dec. 555; Powell v. Lyles, 1 Murpli. (N. C.) 348, Hall, J., dissenting; 
 Huntley v. Waddill, 13 Ired. L. (N. 0.) 33. Dickinson v, Voorhees, 7 W. & S. 
 (Pa.) 357. Here there was a deficiency of 445 acres out of a tract of 3,335 
 acres conveyed with warranty. Allison v. Allison, 1 Yerg. (Tenn.) 16; Miller 
 V. Bentley, 5 Sneed (Tenn.), 674. Daughtrey v. KnoUe, 44 Tex. 455: Doyle v. 
 Hord, 67Tex. 631; 4S. W. Rep. 341. Sine v. Fox, 33 W. Va. 531; 11 S. E. 
 Rep. 318; Gerhart v. Spalding, 1 K. Y. Supp. 486. But see Moore v. John- 
 son, 87 Ala. 330, where it was said that the covenant of seixin 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 tho 
 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 tho same land 
 conveyed by A. to me; " such phrase is Intended merely as an aid to identifying 
 the land. Shaw v. Bisbee, 83 Me. 400; 33 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 description of the land in the deed as a tract which 
 had passed to the grantor by certain deeds will not restrain the warranty to the 
 original bounds of the tract. Steiner v. Baughman, 13 Pa. St. 106. 
 
 'Broadway v. Buxton, 43 Conn. 383. 
 
 3 Tymason v. Bates, 14 Wend. (N. Y.) 671. 
 
COVENANTS OF WAEEANTY AND FOE QUIET ENJOYMENT. 327 
 
 buy the adjoining lot to save the house, does not amount to a breach 
 of the covenant of warranty.^ 
 
 § 136. axiAIilFICATIONS AND RESTRICTIONS OF THE COVE- 
 NANT OF "WARRANTY. The parties may, of course, so frame the 
 covenant of warranty as to limit or restrict the liability of the cove- 
 nantor. JSTo difficulty arises where the only covenant in the con- 
 veyance is restricted and hmited in express terms. But sometimes, 
 and this may well happen where printed forms of conveyances are 
 used and the blanks are filled by unskilled persons, a deed will be 
 found to contain a general covenant, followed by a special covenant, 
 or by language inconsistent with or restrictive of the general cove- 
 nant. Under such circumstances the following rules have been 
 formulated by Sir Edward Sugden for the construction of the 
 instrument:^ (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.^ (3) "Where restrictive 
 words are inserted in the first of several covenants liaving the same 
 object, they will be construed as extending to all the covenants, 
 although they are distinct.* (4) Where the first covenant is gen- 
 eral, a subsequent limited covenant will not restrain the generality 
 of the preceding covenant, unless an express intention to do so 
 
 ■Burke v, Nichols, 34 Barb. (N. Y.) 430; S. C, 2 Keyes (N. Y.), 670. 
 
 2 2 Sugd. Vend. (14th ed.) 279 (605); Rawle Govts. (5th ed.) § 289. 
 
 '2 Sudg. Vend. (14th ed.) 605; Rawle Govts. (5th ed.) § 295. Everts v. Brown, 
 1 D. Chip. (Vt.) 96; 1 Am. Dec. 699. Blacky. 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 manu- 
 facture 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, 688. 
 Whallon v. Kauflman, 19 Johns. (N. Y.) 97. Davis v. Lyman, 6 Gonn. 252. 
 Duval V. Craig, 2 Wh. (U. S.) 45. See, also, Nind v. Marshall, 1 Brod. & Ring. 
 319. Dickinson v. Hoomes, 8 Grat. (Va.) 358. 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 rhe case, 
 was left in doubt, the court held that they did not limit or control the preceding 
 covenant. Cornish v. Capron, 186 N. Y. 232; 32 N. E. Rep. 773. 
 
328 MARKETABLE TITLE TO REAL ESTATE. 
 
 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.^ 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 a grantor intends to limit lus liabiHty 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.' 
 
 Where a deed conveys the grantor's right, title and interest, 
 though it contains in general terms a covenant of general warranty, 
 tlie covenant is regarded as restricted and limited to the estate con- 
 veyed, 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.^ But if 
 
 ' Sugd. Vend. (14th ed.) 606 (280); Eawle Govts, (.jtli ed.) § 391. Rowe v. Heath, 
 23 Tex. 619. Sheets v. Joyner, (Ind.) 38 N. E. Rep. 830. Morrison v. Morrison, 
 38 Iowa, 73. Peters v. Grubh, 21 Pa. St. 460. Atty.-Gen. v. Purmort, 5 Paige 
 Ch. (N. Y.) G20. 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, From- 
 herger, 4 Dallas (Pa.), 440, where it was held that a special warranty in a deed 
 would not control a preceding general warrant}', if it appeared from the face of 
 the deed that a general warranty was intended. A recital that the conveyance 
 is made "subject to mortgage" controls a subsequent covenant of warranty. 
 Jackson v. Hoffman, 9 Cow. (N. Y.) 271. A special covenant to warrant and 
 defend the premises against the grantor's taxes, and against the grantor's own 
 acts, does not limit a prior general covenant implied from the words "convey 
 and grant." Jackson v. Grun, 112 Ind. 841; 14 N. E. Rep. 89. 
 
 ^Chitwood V. Russell, 36 Mo. App. 24.5. 
 
 3 3AVashb. Real Prop. 665; Rawle Govt. (.5th ed.) § 298; Wait's Act & Del 
 391. Blanchard v. Brooks, 13 Pick. (:\rass.) 67; Allen v. Holton, 20 Pick. (Mass.) 
 463; Sweet v. Brown, 13 Met. (Mass.) 173; 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, 
 
COVENANTS OF WAERANTY AND FOE QUIET ENJOYMENT. 329 
 
 the conveyance be of the "right, title and interest" of tlie 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.^ 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 tlie mistake, and reform the 
 instrument.' 
 
 § 137. IMPLIED COVENANTS. At common law certain cove- 
 nants were implied from the -w ord " dedi " (I have given) in a feoff- 
 ment, and from the word " demisi " (I have demised) in a lease, but 
 no covenant was implied from the words of grant in conveyances 
 operating under the statute of uses, such as a deed of bargain and 
 sale, or a lease and release.' In the United States, the feoffment is 
 no longer in use, its place being supplied by the deed of bargain and 
 sale. Hence, much of the learning upon the subject of implied 
 covenants for title is with us practically obsolete. 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.^ 
 In others, implied covenants are expressly abolished, except, perhaps, 
 
 25 Cal. 452. Adams v. Eoss, 30 N. J. L. 510. McNear v. McComber, 18 Iowa, 
 14. Young V. Clippinger, 14 Kans. 148. White v. Brocaw, 14 Ohio St. 339. 
 Lamb v. Wakefield, 1 Sawy. (U. S.) 251. Hope v. Stone, 10 Minn. 141 (114). 
 Hull V. Hull, 85 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 right and title to 
 the land comprising 50 acres oif 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. 
 
 «2 Sugd. Vend. (14th ed.) 609 (285); Rawle Govts. (5th ed.) § 296. 
 
 3Rawle Covts. for Title (5th ed.), § 282. 
 
 *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. 
 42 
 
330 MARKETABLE TITLE TO EEAL ESTATE. 
 
 in the case of leases.^ In others, where the common law remains 
 unchanged by statute, it is apprehended that its rules in this regard 
 are still law, but practically a dead letter by reason of the disuse of 
 those conveyances from which the implication springs. 
 
 As to covenants implied by force of statute, it is deemed inexpe- 
 dient 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 observed, 
 however, that if a deed contains covenants for title in the usual form, 
 they will supersede those implied under the statute from the words 
 " grant, bargain and sell," or from other words of like import.^ 
 A covenant of general warranty will not be implied from the recitals 
 of a deed, when the deed contains an express covenant of special 
 warranty.^ A covenant of warranty will not be implied from the 
 word " grant," where a statute gives that effect to the words "grant, 
 bargain and sell," * nor from the word " convey," when the words 
 " grant, bargain and sell " are not employed.^ 
 
 Covenants implied in a lease. As to covenants implied at 
 common law, it is believed that but three of them are of any prac- 
 tical 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 par- 
 tition. These are : (1) That the lessor has power to make the lease j 
 and (2) That the lessee shall have quiet enjoyment of the premises." 
 The covenants will be implied wherever the relation of landlord and 
 tenant is created by an instrument in writing, whether the word 
 
 ' Mich. How. Amend. Stat. § 5656. Minn. Kev. St. 1881, p. 535. Oregon, 
 Deady's Laws, p. 647. New York, 3 Rev. St. (5th ed.) p. 29, § 160. 
 
 = Douglas V. Lewis, 131 U. S. 75. Weems v. McCaughan, 7 8m. & 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 9. 
 E. Rep. 59. 
 
 " Wheeler v. Wayne Co., 132 111. 599; 24 N. E. Rep. 625. See, also. Gee v. 
 Phurr, 5 Ala. 586, Frink v. Darst, 14 111. 304; 58 Am. Dec. 575. Whitehill v. 
 Gotwalt, 3 Pen. & W. (Pa.) 323. 
 
 'Heflin v. Phillips, (Ala.) 11 So. Rep. 729. 
 
 ^ 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. 53. 
 
COVENANTS OF WAEEANTY AND FOE QUIET ENJOYMENT. 331 
 
 " demise " was or was not employed/ and the covenant for quiet 
 enjoyment will be implied, thougli the lease was by parol.^ The 
 covenants so implied will, of course, be limited or restrained by any 
 express covenant which the lease may contain.^ So, also, by an 
 express provision in the lease that nothing therein contained shall 
 be construed to imply a covenant for quiet enjoyment.* If the 
 estate out of which the lease was granted determines before the expira- 
 tion of the lease, the implied covenant will be at an end.' A lease 
 of the right to collect wharfage for a year is not a " conveyance of 
 real estate," within the meaning of a statute forbidding the impli- 
 cation of covenants for title in such conveyances, and a covenant for 
 quiet enjoyment will be implied in such a lease." 
 
 Covenants implied in an exchange. The common-law deed 
 of exchange is rarely, if ever, used in modern times, the parties 
 usually executing separate conveyances, the one to the other. Eut 
 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.' 
 
 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.' And though, in case of a deed of par- 
 tition between co-parceners, covenants of warranty are implied 
 wherever the common law remains unchanged, the existence of such 
 
 'Bandy v. Cartright, 8 Exch. 913. Dexter v. Manley, 4Cush. (Mass.) 14. Ross 
 V. Dysart, 33 Pa. St. 453. 
 » Bandy v. Cartright, 8 Bxch. 913. 
 » Rawle Govts. (5th ed.) ^ 375. 
 ■•Maeder v. Carondelet, 26 Mo. 114. 
 
 5 Adams v. Gibney, 6 Bing. 656. Mayor v. Baggatt, 61 Miss. 383. McLowry 
 ■s. Croghau, 1 Grant's Cas. (Pa.) 807, 311. 
 
 8 Mayor v. Mabie, 3 Kern, (N. Y.) 151. 
 
 ' 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. 
 
 6 Rawle Covts. (5th ed.) §§ 277, 378. 
 
332 MAEKETABLE TITLE TO EEAL ESTATE. 
 
 covenants is of little practical importance, owing to the more con- 
 venient remedy by bill in equity for contribution.^ 
 
 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.^ 
 
 § 138. PARTIES BOUND AND BENEFITED. 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 refer- 
 ence to her separate estate as if she were sole, she has been held 
 liable upon her covenants for title, and in still other States there are 
 statutes which provide in terms that she shall be so liable. Inde- 
 pendent 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 satis- 
 faction of her covenants for title, while in others such rehef is 
 denied the covenantee.^ 
 
 § 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 be held liable for the breach.* In America, 
 however, by virtue of generally prevalent statutory provisions, 
 which make the real and personal estate of a decedent assets for the 
 
 'Walker v. Hall, 15 Ohio St. 355; 86 Am. Dec. 482. Sawyers v. Cator, 8 
 Humph. (Tenn.) 256; 47 Am. Dec. 608. 
 
 'Whitehill v. Gottwalt, 3 Pen. & W. (Pa.) 327. Ferguson v. Dent, 8 Mo. 673. 
 Rawle Govts. (5th ed.) §§ 280, 297. 
 
 ^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 he devoted to it 
 in this work. The student is referred to Mr. Kawle's excellent work on Cove- 
 nants 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 contract in reference to her separate 
 estate as if she were a feme sole, it has been held that she is bound by her cove- 
 nants for title. Sandwich Manfg. Co. v. Zellmer, 48 Minn. 408; 51 N. W. Rep. 
 379. 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, 
 
 " Co. Litt. 209a. 
 
COVENANTS OF WAEEANTY AND FOE QUIET ENJOYMENT. 333 
 
 payment of his debts, and charge the heir therewith to the 
 extent of assets received by him from the estate of the ancestor/ he 
 is, under such circumstances, liable for the breach of his ancestor's 
 covenants for title, whether he was or was not specially named in 
 the covenant. In some of the States, however, he cannot be held 
 liable until the personal estate has been exhausted.' 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 liabil- 
 ity, however, is peculiarly appropriate to courts of equity which are 
 charged with the administration of the estates of decedents and 
 armed with all the machinery, such as account and discovery, needed 
 to ascertain the qua/ntum of assets descended to the heir, the want 
 of other assets applicable to the satisfaction of the breach of cove- 
 nant, and other matters necessary for the determination of the 
 precise sum in which the heir is liable. In some of the States tliei-e 
 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.' 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.^ 
 
 ' See the statutes of the several States. 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. Russ v. Perry, 49 N. H. 549. Where 
 a breach of covenant has occurred after the death of the covenantor, and his 
 estate has been fully administered, the covenantee will not be driven to a new 
 administration and suit against the administrator d. h. n., but may sue tht 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, 137 Ind. 31; 23 N. E. Rep. 182. AVhere the grantor 
 conveys with special warranty his heirs or devisees can, of course, be held liable 
 only for his acts, and not for claims to which the covenant did not extend. 
 Gittings V. Worthington, 67 Md. 139; 9 Atl. Rep. 228. 
 
 ' Royce v. Burrell. 12 Mass. 399. See, also, cases cited Rawle Govts, for 
 Title (5th ed.), p. 520, note 3. 
 
 « Rex V. Creel, 23 W. Va. 373. 
 
 ^Beall V. Taylor, 2 Grat, (Va.) 532; 44 Am. Dec. 398. 
 
334 MARKETABLE TITLE TO KEAL ESTATE. 
 
 "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.^ 
 
 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 extended so as to embrace 
 breaches occurring after the testator's death.' 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,^ and words of severance will be required to render one liable 
 only for his own acts.* A covenant by A. and B. that " they will 
 warrant generally the land," etc., is a joint and several covenant, 
 and both will be liable for the full amount of the damages in case 
 of eviction.^ If two persons convey each an undivided moiety of 
 certain premises, and one of them enters into limited or i-estricted 
 covenants, and the other covenants generally, the latter, in case of 
 
 ' Whitesides v. Cooper, 115 N. C. 570; 20 S. E. Rep. 395. 
 
 ' Rawle Govts. (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. 
 
 3 Piatt on Govts. 117; Rawle on Govts, (oth ed.) § 304; 1 Wms. Saunders, 154, n. 
 Donohue v. Emery, 9 Met. (Mass.) 67; Comings v. Little, 24 Pick. (Mass.) 366. 
 But see Redding v. Lamb, 81 Midi. 318; 45 N. W. Rep. 947. 
 
 * As in Evans v. Saunders, 10 B. Mon. (Ky.)391, 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 (G. C), 366. Bardell v. Trus- 
 tees, 4 Bradw. (111.) 94. 
 
 ' Click V. Green, 77 Va. 837. Donohue v. Emery, 9 Met. (Mass.) 67. Piatt on 
 Govts, part 1, ch. 8, § 2. 
 
COVENANTS OF WAEKANTY AND FOE QUIET ENJOYMENT. 335 
 
 an eviction under a title not embraced by the limited covenants, can 
 be lield 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.' 
 
 A discharge in bankruptcy will, of course, relieve the bankrupt 
 from liability for a breach of a covenant of warranty occurring 
 before tlie discharge. But the bankrupt is not relieved where the 
 breach occurs after the discharge.^ 
 
 § 140. Personal representatives. Fiduciaries. We have 
 seen that warranty was a covenant real at common law, one conse- 
 quence 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. Keal actions having been long since aban- 
 dtmed both in England and America, covenant may be maintained 
 against the personal representative of the covenantor, whether 
 named in the covenant or not, and whether the breach occurred 
 before or after the death of the testator or intestate.' 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.^ 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.^ 
 
 § 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.^ But if 
 the breach occur after the death of the covenantee, the right of 
 
 1 Sutton V. Bailey, 65 Law Times Kep. 538. 
 
 i'Bush V. Cooper, 18 How. (U. S.) 82. "Waggle v. Worthy, 74 Cal. 266; 15 
 Pac. Rep. 831. There has been some diversity of opinion upon this point. See 
 Rawle Govts. (5th ed.) § 303. 
 
 ' Townsend v. Morris, 6 Cow. (N. Y.) 123. Tabb v. Binford, 4 Leigh (Va.), 
 182; 26 Am. Dec. 317. Rawle Govts. (5th ed.) ch. 13. 
 
 *Ante, p. 
 
 'Thurmond v. Brownson, 69 Tex. 597; 6 S. W. Rep. 778. 
 
 « Grist V. Hodges, 3 Dev. L. (N. G.) 201. "Wilson v. Peete, 78 Ind. 384. 
 
336 MARKETABLE TITLE TO REAL ESTATE. 
 
 action accrues to the heir, devisee, or assignee, according to whether 
 the premises liave passed into the hands of the one or the other.' 
 An assignee of the covenantee may, of course, sue for a breach of 
 the covenant of warranty where he himself is evicted, or where he 
 has been held liable upon his own warranty of the same premises 
 to a subsequent grantee.' 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'^ or assigns' be mentioned in order to give 
 them the benefit of the covenant. The right of a subsequent 
 grantee of the premises to sue ujDon 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.^ 
 A tenant in 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 
 assignment of dower.^ 
 
 § 142. WHAT CONSTITUTES BREACH. Tortious disturbance or 
 eviction. The covenant of warranty is broken by an eviction only, 
 and the covenant for quiet enjoyment by an eviction, or by a sub- 
 stantial disturbance of the covenantee in the enjoyment of the 
 estate, though such disturbance does not amount to an eviction.' In 
 either case, the breach must result from the acts of one having a 
 better title to the premises than the covenantor. An eviction or 
 
 ' Pence v. Duval, 9 B. Mon. (Ky.) 48. 
 
 ' See post, §§ 153, 160. 
 
 5 2 Sugd. Vend. 577. Lougher v. Williams, 2 Lev. 92. 
 
 ■•2 Sugd. Vend. 577, and cases cited; Piatt Govt. 523; 3 Law Lib. 234. Red- 
 wine V. Brown, 10 G-a. 318; Leary v. Durham, 4 Ga. 603. See Colby v. Osgood, 
 29 Barb. (N. Y.) 339. 
 
 »Lamb v. Danforth, 59 Me. 322; 8 Am. Rep. 426. 
 
 " St. Clair v. Williams, 7 Ohio, 396. 
 
 '4 Kent Com. 558 (473), et seq.; 3 Washb. Real Prop. ch. 5, § 5; Rawle Govt, 
 for Title (5th ed.), ch. 8. If the grantee with covenant for quiet enjoyment be 
 let into possession, the covenant is not broken merely because the grantor turns 
 out to have had only a life estate instead of a fee. Wilder v. Ireland, 8 Jones 
 L. (N. C.) 88. But if the life estate fall in and the covenantee be evicted, the 
 covenant for quiet enjoyment is of course broken. Parker v, Richardson, 8 
 Jones L. (N. 0.) 452. 
 
COVENANTS OF WAEEANTY AND FOE QUIET ENJOYMENT. 337 
 
 disturbance of the possession by a trespasser, a mere wrongdoer, or 
 a person having a defeasil)le claim to the premises, does not amount 
 to a breach of either covenant. In otlier words, as lias been fre- 
 quently said, the covenant of warranty and the covenant for quiet 
 enjoyment are not broken by a tortious disturbance or eviction.' 
 
 The cases deciding that a tortious disturbance is no breach of the 
 covenant for (juiet enjoyment liave, in most instances, arisen between 
 landlord and tenant. It is clear that in a lease a general covenant 
 for quiet enjoyment extends only to entries and interi'ujDtions by 
 those who have lawful right, for the tenant has his remedy by action 
 against all trespassers and wrongdoers.^ Thei-efore, where the 
 leased premises had formerly been a house of ill-repute, and the 
 lessee was so constantly disturbed by the calls of obnoxious ])ersons 
 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.' And to constitute a breach of this 
 
 ' 2 Sugd. Vend. (8th Am. ed.) 271 (600); Washb, Real Prop. 427; Rawlc^ C;()vts. 
 (5th ed.) § 137; Taylor Landlord & Tenant, § 304, et H,:q. Wotton v. Hele, 2 
 Saund. 177, leading case; Howell v. Richards, 11 East, 633, 642, dictum.; Hayes 
 V. Bickerstafe, Vaugh. 118, Andrus v: Smelting Co., 130 U. S. 643. Hoppes v. 
 Cheek, 21 Ark. 585. Playter v. Cunningham, 31 Cal. 383; Branger v. Manciet, 
 30 Cal. 624. Davis v. Smith, 5 Ga. ?74; 47 Am. Dec. 279. Kimball v. Grand 
 Lodge, 131 Mass. 59. Folliard v. WrJ.lace, 2 Johns. (K 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 land by one having no valid claim to the land. Mclnnis v. Lyman, 62 Wis. 
 191. An illegal tax sale and redemption therefrom constitutes no breach of the 
 covenant against incumbrances, nor, it is apprehended, of the covenant of war- 
 ranty. Cummings v. Holt, 56 Vt. 384. Evidence that certain persons are in 
 possession of the warranted premises, claiming under a grantee of one who pur- 
 chased at a sheriff's sale under judgment against the covenantor, without show- 
 ing a conveyance 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. 
 
 '^ Kimball v. Grand Lodge, 131 Mass. 59, 63, citing Ellis v. Welch, 6 Mass. 246; 
 4 Am. Dec. 122; Shearman v. Williams, 113 Mass. 481. Gardner v. Keteltas, 3 
 Hill (N. Y.), 330; 38 Am. Dec. 687. Howell v. Richards, 11 East, 633, 642. 
 Dudley v. Folliott, 3 T. R. 584; Nash v. Palmer, 5 M. & 8. 374. 
 
 ^Meeks v. Bowerman, 1 Daly (N. Y.), 99. 
 43 
 
338 MAEKETABI.E TITLE TO EEAL ESTATE. 
 
 covenant, the person who disturbs the tenant most have some law- 
 ful interest or right in the realtv and not merely a title to some 
 chattel that may be upon it.' The fact that leased premises were, 
 at tlie 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.^ 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 possession 
 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.' Upon 
 the principle that the covenant of warranty is not broken by a tor- 
 tious 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.* 
 
 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, pro- 
 vided his acts amounted to an assumption of right and title',' and were 
 
 ' Kimball v. Grand Lodge, 131 Mass. 59, 6.3, where the breach complained of 
 ■was the removal of certain fixtures from the demised premises by a prior tenant. 
 Biit if a prior tenant remove a building from the premises under an agreement 
 with the grantor or lessor, this will constitute a breach. Wjest v. Stewart, 7 Pa. 
 St. 133. 
 
 ' University v. Joslyn, 31 Vt. 53. 
 
 3 Rickerfc v. Snyder, 9 Wend. (N. Y.) 420. 
 
 -•Post, § 143. Butterworth v. Volkening, 4 Thomp. & C. {N. Y.) 650. 
 
 ^2 Sugd. Vend. (8th Am. ed.) 373 (600); Rawle Govt. (5th ed.) § 138. Corus 
 Case, Cro. Eliz. 544. Crosse v. Young, 3 Show. 415. Sedgewick v. Hollenback, 
 7 Johns. (N. Y.) 376; Dyett v. Pendleton, 8 Cow. (N. Y.) 727; Mayor v. Mabie, 
 3 Kerrf. (N. Y.) 131. Surgetv. Arighi, 11 Sm. & M. (Miss.) 87; 49 Am, Dec. 46. 
 If the landlord permits a building to be erected on his own land so as to encroach 
 on the adjoining demised premises, this is a breach of the covenant for quiet 
 enjoyment. Sherman v. Williams, 113 Mass. 481. Giving out that the cove- 
 nantee 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 eviction on the part of the covenantor. 
 Levitzky 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 
 
COVENANTS OF WAEKANTY AND FOE QUIET ENJOYMENT. 339 
 
 not mere trespasses.* The failure of the landlord to keep the prem- 
 ises in repair, by reason of which the tenant is compelled to abandon 
 the premises, is no breach of the covenant for quiet enjoyment. 
 The lessee should protect himself by a covenant to repair.^ 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,' but if the covenant be expressly against all pretending to 
 claim,* or against the acts of designated persons,^ it will embrace 
 tortious disturbances by such pretenders or persons named. 
 
 § 143. Eminent domain and acts of sovereignty. The cove- 
 nants of warranty and for quiet enjoyment do not embrace acts of 
 
 such as permanently to deprive the lessee of the beneficial enjoyment of them, 
 and the lessee, in consequence thereof, abandons the premises, it is an eviction, 
 and the intent to evict is conclusively presumed. Skally v. Shute, 132 Mass. 
 367. 
 
 'Mayor v. Mabie, 13 N. Y. 151; Lounsbery v. Snyder, 31 N. Y. 514; Edgerton 
 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 (K Y.), 52; Doupe v. 
 Genin, 1 Sweeny (N. Y. S. C), 25, 30, ohiter: Bennett v. Bittle, 4 Rawle (Pa.), 
 339; Avery v. Dougherty, 102 Ind. 448; 3 N. E. Rep. 123; Slayback v. Jones, 9 
 Ind. 470, aemhle. Hayner v. Smith, 63 111. 430; 14 Am. Rep. 124. Bartlett 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 the 
 refusal of the lessor to shore up the walls of the leased premises to prevent them 
 from falling while an adjoining building is being removed, by reason of which 
 refusal the premises are rendered uninhabitable. Such refusal would be a breach 
 only of a covenant of seisin. Howard v. Doolittle, 3 Duer (N. Y.), 464; Johnson 
 V. Oppenhelm, 34 N. Y. Super. Ct. 416. 
 "Ante, p. 886. Kent, C. J., in Folliard v. Wallace, 2 Johns. (N. Y.) 395. 
 ■" Chaplain v. Southgate, 10 Mod. 383. 
 
 5 3Sugd. Vend. (8th Am. ed.) 271 (600); Rawle Govts. (5th ed.) §138, pi. 3, 
 Nash V. Palmer, 5 Maule & S. 874, the court saying: " The covenantor is pre- 
 sumed to know the person against whose acts he is content to covenant, and may, 
 therefore, reasonably be expected to stipulate against any disturbance from him, 
 whether from lawful 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 neces- 
 sary, in an action for the breach, to aver an eviction by title paramount. Pattou 
 V. Kennedy, 1 Marsh (Ky.) 889; 10 Am. Dec. 744; Pence v. Duval, 9 B. Mon. 
 (Ky.) 49. But see Gleason v. Smith, 41 Vt. 293, where it was said that a cove- 
 nant against the claims of persons named is a covenant against their valid claims, 
 and not against such claims as they may make without legal foundation or right. 
 
340 
 
 MARKETABLE TITLE TO EEAL ESTATE. 
 
 Bovereigntj,' such, for example, as the exercise of the right of emi- 
 nent domain.^ The organic law of each State provides that private 
 property shall not be taken for public purposes without compensa- 
 tion, and the covenantee is protected by provisions for the indemnity 
 of the owners of the appropriated lands made in pursuance of this 
 law.' When the parties enter into covenants for title it will be pre- 
 sumed that they had in view only existing rights under a paramount 
 title, and the power of the State to apjDrojDriatethe premises for pub- 
 
 ' Philips V. Evans, 38 JIo. 305, a case in which it was held that governmental 
 emancipation of a slave, who had been sold with warranty, was no breach of the 
 warranty. Osboru v. Nicholson, 18 Wall. (S. 0.) 655. Dyer v. Wightman (Legal 
 Tender Cases), 13 Wall. (IT. S.) 549. In Cooper v. Bloodgood, 33 K. J. Eq. 309 
 (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 war- 
 ranty 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, 39 W. Va. 814; 1 S. E. Rep. 731, where it was held that a covenant 
 of warranty in a conveyance of premises extending to "low- water mark" was 
 not broken by the fact that the public had an easement therein, and that the pub- 
 lic 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 municipal authority. Barrere v. Bartet, 33 La. Ann. 733. 
 
 ' Elhs V. Welch, 6 Mass. 346; 4 Am, Dec. 133, leading case; Bummer v. Boston, 
 103 Mass. 19; Boston Steamboat Co. v. Manson, 117 Mass. 34, semile. Patterson 
 V. Arthur, 9 Watts (Pa.), 153; Bellinger v. Society, 10 Pa. St. 135; Dobbins v. 
 Brown, 13 Pa. St. 75, distinguished in Peters v. Grubb, 31 Pa. St. 455; Workman 
 v.Mifflin, 30 Pa. St. 363; Bailey v. Miltenberger, 31 Pa. St. 37; Schuylkill, etc., 
 R. Co. V. Schmoerle, 57 Pa. St, 371. See, also, Maule v. Ashmead, 30 Pa. St. 483; 
 Ross V. Dysart, 33 Pa. St. 452. Cooper v. Bloodgood, 33 N. J. Eq. 309. See 
 elaborate note to this case. Kuhn v. Freeman, 15 Kans. 433; Gummon v. Blais- 
 dell, 45 Kana. 331; 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 entry of the State to make a railroad or a canal; nor can it be a sound inter- 
 pretation of the contract that would make him liable for it. An explicit covenant 
 against all the world would bind him; but the law is not so unreasonable as to 
 imply it. The entry of the public agents, and the occupancy of the ground, 
 were not a breach of the warranty." 
 
 = Frost V. Earnest, 4 Whart. (Pa.) 86. Ellis v. Welch, 6 Mass. 246; 4 Am. Dec. 
 123, Folts v. Huntley, 7 Wend. (N, Y.) 310. 
 
COVENANTS OF WAREANTY AND FOK QUIET ENJOYMENT. 341 
 
 lie uses cannot be regarded as snch a right.* In one case it was held 
 that the covenant of warranty was not broken by condemnation of 
 the premises to public uses, though the covenantor had, before the 
 execution of the deed, released all claim to damages.^ The pur- 
 chaser 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.^ 
 
 § 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 
 warranty has been more frequently declared than this.' Nor does 
 the covenant of warranty, independently of statute, include a cove- 
 
 = Ellis V. Welch, 6 Mass. 346; 4 Am. Dec. 133. Frost v. Earnest, 4 Whart. 
 (Pa.) 86. 
 
 'Dobbins v. Brown, 13 Pa, St, 75. This is a doubtful case. The release was 
 executed in 1839. The conveyance with warranty was made in 1839, The actual 
 appropriation of the premises to public uses took place in 1840. Regarding the 
 release as a conveyance of an interest in the estate, thero 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. 
 
 'Neeson v. Bray, 19 N, Y. Supp, 841, 
 
 *4 Kent Com, 473; 3 Lom, Dig. 763; Rawle Govts. (5th ed,) § 181, Barlow v, 
 Delaney, 40 Fed. Rep, 97, Caldwell v, Kirkpatrick, 6 Ala, 63; 41 Am, Dec. 36. 
 Beebe v. Swartwout, 3 Gil, (111,) 180; Moore v. Vail, 17 111, 185; Owen v, Thomas, 
 33 111, 330; Bostwick v, Williams, 36 111, 65; 85 Am, Dec. 385. Wilson v, Irish, 
 63 Iowa, 260; S, C, 57 Iowa, 184. Emerson v, Minot, 1 Mass, 464; Lothrop v, 
 Snell, 11 Cush, (IVIass.) 453, Wilty v, Hightower, 13 Sm, & M. (Miss.) 478, Kent 
 V. Welch, 7 Johns. (N, Y,) 358; 5 Am, Dec, 266, leading case; Vanderkarr v, 
 Vanderkarr, 11 Johns, (N, Y.) 122; Ktflly v, Dutch Church, 3 Hill (N. Y.), 105; 
 Greenvault v. Davis, 4 Hill (N, Y,), 643; Fowler v. Poling, 6 Barb. (N. Y.) 165; 
 Blydenburg v, Cotheal, 1 Duer (N, Y,), 195, Bender v, Fromberger, 4 Dall, 
 (Pa.) 436; Clarke v, McAnulty, 3 S. «& R, (Pa,) 364; Patton v, McFariane, 3 P, & 
 W. (Pa.) 433; Dobbins v. Brown, 18 Pa, St, 75; Stewart v. West, 14 Pa, St, 336, 
 Allison V, Allison, 1 Yerg, (Tenn,) 16; Ferris v. Harshea, Mart, & Yerg, (Tenn.) 
 
342 MARKETABLE TITLE TO KEAL ESTATE. 
 
 nant against incumbrances/ tliougli 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. The Statute of Limitations 
 does not run upon a covenant of warranty until there has been an 
 eviction .'^ An action upon a covenant of warranty is an action 
 
 54; 17 Am. Dec. 783; Stuart v. Nelson, 4 Hayw. (Tenn.) 200; Crutohev v. Stump, 
 5 Hayw. (Tenn.) 100; Young v. Butler, 1 Head (Tenn.), 648. Contra, Talbot v. 
 Bedford, Cooke (Tenn,), 447. Findlay v. Toncray, 3 Kob. (Va.) 374, 379; Marbury v. 
 Thornton, 83 Va. 374; 1 S. E. Rep. 909; Jones v. Richmond, (Va.) 13 S. E. Rep. 414. 
 In Clarke v. McAnulty, 3 Serg. & R. (Pa.) 864, it was said by Gibson, J.: "The 
 covenant of warranty protects only against an ouster from the possession, and 
 there can, therefore, be no breach of It assigned without alleging an actual evic- 
 tion. 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 allega- 
 tion, 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 appar- 
 ent exception to the rule stated in the text will be found in Daggett v. Reas, 70 
 Wis. 60; 48 N. W. Rep. 137, where it was held that a covenant of warranty was 
 broken by an outstanding tax title in a stranger. This, however, was upon the 
 ground that recording the tax deed constructively vested tiie possession in the 
 tax purchaser. In South Carolina, the courts, following the civil law, have held 
 in a number of cases that an eviction is not necessary to a breach of the covenant 
 of warranty, and that the covenant is broken by a superior title outstanding in a 
 stranger. Pringle v. Witten, 1 Bay (8. C), 354; 1 Am. Dec. 612; Bell v. Higgin, 
 1 Bay (S. C), 336; Sumter v. Welch, 3 Bay (S. C), 558; Mackay v. Colhns, 3 
 Nott & McC. (S. C.) 186; 10 Am. Dec. 586; Moore v. Lanham, 3 Hill L. (S. C.) 
 804; Mitchell v. Vaughan, 2 Brev. L. (S. C.) 100. But see -leter v. Glenn, 9 Rich. 
 L. (S. C.) 377, and, post, § 190. The same rule exists in Texas, with this quali- 
 fication, namely, that the purchaser must have bought without notice of the out- 
 standing title. Doyle v. Hord, 67 Tex. 662; 4 S. W. Rep. 341; Groesbeck v. 
 Harris, 83 Tex. 411; 19 S. W. Rep. 850. It seems that an exception to the rule 
 stated in the text exists where the title is outstanding in the State, that fact alone 
 being held to amount to an eviction. Post, § 168. Burr v. Greeley, 53 Fed. 
 Rep. 926. Kans. Pac. R. Co. v. Dunmeyer, 19 Kans. 543. Brown v. Allen, 10 
 N. y. Supp. 714. McGary v. Hastings, 89 Cal. 860; 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 lona fide purchaser by procuring a patent from the government, 
 under an act passed for the relief of such purchasers. Burr v. Greeley, 53 Fed. 
 Eep. 926. 
 
 'Leddy v. Enos, (Wash.) 33 Pac. Rep. 508. 
 
 « Cheney v. Sti-aube, 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 
 
COVENANTS OF WAERANTV AND FOE QUIET ENJOYMENT. 343 
 
 upon a specialty, and governed by the Statute of Limitations appli- 
 cable to specialties.' It has been held that an action may be main- 
 tained before eviction on a bond " to indemnify and make the 
 vendee safe and secure in the title." ^ Such a bond imposes a 
 greater obligation than a covenant of seisin, or for quiet enjoyment, 
 and, it has been intimated, is not merged or extinguished by the 
 acceptance of a deed.' 
 
 § 145. Entry hy 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 disseisin 
 on the part of him who has the superior title,* or by the officers 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.'^ But 
 the weight of authority establishes the rule that a lawful expulsion 
 of the covenantee from the premises by one liaving a better right, 
 operates a breach of the covenant of warranty, whether the expul- 
 sion was or was not in pursuance of judicial sanction.^ An eviction 
 or ouster /;;, pais must, of course, be established by parol evidence.'' 
 But if there has been an actual eviction in pursuance of a judgment 
 
 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.) 39 S. W. Rep. 797. 
 
 • Kern v. Kloke, 21 Neb. .539; 32 N. W. Eep. .'iTi. 
 
 ' Anderson v. Washabaugh, 43 Pa. St. 118. 
 
 sRawle Govts. (5th ed.1 289, note 3. See post, § 269. 
 
 "As in Hodges v. Latham, 98 N. C. 239; 8 S. E. Rep. 495. Here the covenantee 
 left the premises for a short time, and upon his return found them in the posses- 
 sion of one claiming under a paramount title. 
 
 'Stevrart v. Drake, 4 Halst. (N. J. L.) 141. Lansing v. Van Alstyne, 3 Wend. 
 (N. Y.) 563, obiter; Hunt v. Amidon, 4 Hill (N. Y.), 845; 40 Am. Dec. 383, 
 obiter. 
 
 6 Booker v. Bell, 3 Bibb (Ky.), 173; 6 Am. Dec. 641. Fowler v. Poling, 6 
 Barb. (N. Y.) 165. See, also, eases cited post, " Constructive Eviction," p. 34.'i. A 
 decree in equity, by which the covenantee loses the land, is equivalent to evic- 
 tion by process of law. Martin v. Martin, 1 Dev. (N. C.) L. 413. 
 
 'Booker v. Bell, 3 Bibb (Ky.), 178; 6 Am. Dec, 641. Randolph v. Meeks, 
 Mart. & Yerg. (Tenn.) 58. 
 
344 MAEKETABLE TITI-E TO EEAL ESTATE. 
 
 in ejectment against tlie covenantee, tlie record thereof will be the 
 only proper evidence of the fact.* 
 
 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.^ 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.' 
 
 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." An 
 assignment of dower by metes and bounds in the warranted prem- 
 ises and the placing of the widow in possession is, of course, an 
 eviction and breach of the covenant of warranty. ° 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.*' 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- 
 
 ■ Booker v. Bell, 3 Bibb (Ky,), 173; 6 Am. Dec. 641. 
 
 'Tuft V, Adams, 8 Pick. (Mass.) .547; Smiths. Shepard, 15 Pick, (Mass.) 147; 25 
 Am. Dec. 432; White v. Whitney, 8 Met. (Mass.) 81. The recording of a certifi- 
 cate of entry by a mortgagee for condition broken shows a breach of the covenant 
 of warranty. Furnas v. Durgin, 119 Jfass. 500; 20 Am. Rep. 341. In Collier v. 
 Cowger. 52 Ark. 3'-3; 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 allega- 
 tion of a " decision " establishing a lien on the wnrr;inted premises was not sufficient 
 as an allegation of a judgment or eviction. It seems to have been assumed in 
 this case that a judgment establishing the lien would have been equivalent to an 
 eviction. 
 
 'Crore T. 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. 
 
 1 Lamb v. Baker, (Neb.) 52 N. W. Rep. 285. 
 
 '.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 Mo. 174. Pest, "Inability to get Possession," 
 p. 345, note. 
 
CO\'ENANTS OF WAItJtANTY AXD FOJl QUIET ENJOYMENT. 345 
 
 wards reversed, since the reversal does not affect the title or posses- 
 sion of the purchaser under the judgment.' 
 
 § 146. Constructive eviction. Inalyllity to (jet possession. A 
 constructive eviction of a grantee, with v^arranty, 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.^ 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 smj other 
 act on the part of either the grantee or the claimant. The claimant 
 can do no more towards the assertion of his title than to hold 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.' 
 
 ' Smith V. Dixon, 27 Ohio St. 471. 
 
 sBoreel V. Lawton, 90 N. Y. 293; 43 Am. Rep. 170; Mead v. Staclipole, 40 
 Hun (N. Y.), 473. 
 
 3 Piatt Govts. 327; 2 Lom. Dig. 269; Rawle Govts. (5th ed.) § 138. Glark 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. Moore v. Vail, 17 111. 185. 
 Small V. Rives, 14 Ind. 164. Barnett v. Montgomery, 6 T. B. Mon. (ICy.) 328. 
 Curtis V. Deering, 12 Me. 499. Fritz v. Pusey, 31 Minn. 368. Wilty v. High- 
 tower, 12 Smed. & M. (Miss.) 478. Murphy v. Price, 48 Mo. 247; Blondeau v. 
 Sheridan, 81 Mo. 545. Rickets v. Dickens, 1 Murph. (N. G.) 343. Wetzel v. 
 Richcreek, (Ohio) 40 N. E. Rep. 1004. Randolph v. Meek, Mart. & Yerg. (Tenn.) 
 524; Bradley v. Dibrell, 3 Heisk. (Tenn.) 534. Park v. Bates, 12 Vt. 381; 36 
 Am. Dec. 347; Pitkin v. Leavitt, 13 Vt. 379; Brown v. Taylor, 13 Vt. 631; 37 
 Am. Dec. 618; Glark v, Gonroe, 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. Shattuck v. Lamb, 65 N. Y. 499; 23 Am. Rep. 
 656, citing dicta from Withers v. Powers, 2 Saudf. Ch. (N. Y.) 350, and Wins- 
 low 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 con- 
 trary doctrine prevailed in the State of New York. Kortz v. Carpenter, 5 Johns. 
 (N. Y.) 130; 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 laud conveyed was 
 44 
 
346 MAKKETABLE TITLE TO KEAL ESTATE. 
 
 But an adverse possession in a stranger will not amount to a 
 breach of warranty nnless he holds under a title superior to that of 
 the covenantee.' 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 mast show that he was in fact unable to get 
 possession from one holding under color of title. The mere occu- 
 pancy 01 the premises by a stranger without showing under whom 
 he claims, nor what efforts had been made to obtain possession from 
 him, is insufficient.^ 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.^ 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 
 well as to the title. Therefore, if a stranger be in possession of the 
 
 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 hold that the covenant of warranty 
 was broken. Cecconi v. Rodden, 147 Mass. 164; 16 N. E. Rep. 749. As to 
 whether party wall is abreachof covenant against incumbrances, see ante, p. 396. 
 Ejectment brought by the covenantee against the adverse claimant, and a suc- 
 cessful 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 prem- 
 ises, 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 pos- 
 session. Haj'es v. Ferguson, lo 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.) 458, and the early New Yorji 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. 282, a case in which a lessee of the property 
 refused to give up the possession at the expiration of his term. It devolved 
 upon the covenantee to eject him. 
 
 » Barry v. Guild, 136 111. 439; 18 N. E. Rep. 759. In this case there was a der- 
 rick 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. T.) 49. 
 
COVENANTS OF "WAEEANTY AND FOE QUIET ENJOYMENT. 347 
 
 premises, holding as tenant for life* or for a term of years,^ and the 
 grantee is nnable to get possession, the covenant is broken and a 
 right of action ensues. 
 
 § 147. Vacant and unoccupied lands. There is no opportunity 
 for an apphcation of the doctrine of constructive eviction by ina- 
 bihty to get possession where the warranted premises consist of wild 
 and uncultivated lands wliich are vacant and unoccupied. The legal 
 title draws after it constructive possession which will continue till 
 actual eviction,' and tlie grantee may maintain trespass against any 
 one entering on the land.'' If the title is defective the grantee will 
 have no right of action on the grantor's covenant of warranty until 
 the true owner or some one claiming under him has actually entered 
 upon and taken possession of the premises,^ or until his rights have 
 been judicially established against the grantee.'' A mere sale of the 
 
 ' Blanchard v. Blanchnrd, 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 
 Shearman 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. 
 
 2 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 covenantee from taking possession, except 
 the occupation of a part of the premises by a railroad embankment used by the 
 company in rolling logs from its cars. It did not appear that such use was 
 adverse or hostile to the title conveyed, nor that the company had attempted to 
 acquire any title to the part of the premises so used. It was held that the facts 
 stated did not amount to a constructive eviction of the covenantee. 
 
 * Jackson v. Sellick, 8 Johns. (N. Y.) 262 ; Van Rensselaer v. Van Rensselaer, 
 9 Johns. (N. Y.) 377. Mather v. Tremty, 3 S. & R. (Pa.) 514; 8 Am. Dec. 663. 
 
 * 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 unoccupied lands 
 to which the grantor had no title, is of itself a constructive eviction and breach 
 of warranty. 
 
 * Allis V. Nininger, 25 Minn. 535, where it was held that a judgment in eject- 
 ment 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. 
 
348 MAEKETABLE TITLE TO REAL ESTATE. 
 
 premises to a stranger oy the true owner will not amount to a con- 
 structive eviction.' 
 
 § 148. Sii^rrender 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,' or to 
 
 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 cutting down timber on 
 the warranted premises, which were unoccupied, amounted to a breach of the 
 covenant of warranty. 
 
 ' Hamilton v. Lusk, 88 Ga. 530; 15 S. E. Rep. 10. Green v. Irving, 54 Miss. 
 450; 28 Am, Rep. 360. Matteson v. Vaughn, 38 Mich. 378. Loomis v. Bedel, 
 11 N. H. 74. 
 
 23 Wait's Act. & Def. 389; Rawle Govts, (."ith ed.) § 134; 3 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. 739. McGary v. Hastings, 39 Cal. 
 860; 2 Am. Rep. 456; Booth v. Starr, 5 Day (Conn.), 383; 5 Am. Dec. 149. 
 Moore v. Vail, 17 111. 185; Brady v, Spurck, 37 111. 478; Owen v. Thomas, 33 El. 
 330; Harding v. Larkin, 41 111, 422; Claycomb v. Munger, 51 111. 378. Reasoner 
 V. Edmundson, 5 Ind. 395; Mason v, Cooksey, 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 (lo.), 63; Thomas v. Stickle, 33 Iowa, 76, Radcliff v. Ship, Hard. (Ky.) 
 279. Hamilton v, Cutts, 4 Mass. 349; 3 Am. Dec, 322, leading case. Ogden v. 
 Ball, 40 Minn. 94; 41 N. W. Rep. 458. Hall v. Bray, 51 Mo. 288; Morgan v. R. 
 Co., 63 Mo. 139; Ward v. Ashbrook, 78 Mo. 515; Lambert v. Estes, 99 Mo. 604; 
 13 S. W. Rep. 384, Snyder v, Jennings, 15 Neb. 373; Real v. Hollister, 17 Neb. 
 661. Drew V. Towle, 10 Fost. (N, H,) 531; 64 Am, Dec. 309, Greenvault v. 
 Davis, 4 Hill (N. Y.), 643; Fowler v. 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. 883; 11 
 N, Y, Supp, 53, Parker v. Dunn, 3 Jones L. (N. C.) 304 Patton 
 V. McFarlane, 3 Pea. & W, (Pa.) 433; Poyntell v. Spencer, 6 Pa. St. 254; 
 Steiner v. Baughman, 13 Pa. St. 106. Collis v. Cogbill, 9 Lea (Tenu.), 137. 
 Peck V, Hensley, 30 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 volun- 
 tarily 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 satisfied 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, 
 
COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 349 
 
 wait until the true owner forcibly ejects him, or until he is turned 
 out by the shoulders under legal process.' " The law does not 
 require the idle and expensive ceremony of being turned out by 
 legal process, when that result would be inevitable." ^ 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 lie thus saves the expense incurred 
 by the grantee in defending the title.' 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.* A few cases may be found inclining 
 to the view that a voluntary surrender of the possession to an 
 adverse claimant is not such an eviction as amounts to a breach of 
 the covenant of warranty.^ 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 
 
 therefore, of opinion that the covenantee has the right to purchase in the incum- 
 brance or outstanding title, and sue the warrantor upon his covenant." In AUis 
 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 8. & R. (Pa.) 372. 
 
 sBnoisrsoN, J., in Greenvault v. Davis, 4 Hill (N. Y.), 643. 
 
 * Sterling v. Peet, 14 Conn. 354. 
 
 = Dennis V. Heath, 11 Sm. & M. (Miss.) 206; 49 Am. Dec. 51; Heath v. New- 
 man, 11 Sm. & M. (Miss.) 201. In Kentucky, it seems that the covenantee can- 
 not surrender the possession to an adverse claimant and recover as for a breach 
 of the covenant of warranty, unless there has been a judicial determination of 
 the superiority of the adverse claimant's title, even though the covenantee can 
 show that such title was in fact paramount. Huff v. Cumberland Val. Land Co., 
 (Ky.) 30 S. W. Rep. 660 (not officially reported). 
 
350 MAKKETABr,E TITLE TO REAL ESTATE. 
 
 the ri2;ht to sell the premises under a lien or incumbrance, is a con- 
 structive eviction.' 
 
 The surrender of jjossession must he made to the adverse claim- 
 ant. The covenantee cannot, on failure of title, return the premi- 
 ses to the covenantor and maintain an action for breach of the cove- 
 nant of warranty.^ 
 
 A mere judgment in ejectment against the covenantee, unaccom- 
 panied by a surrender of tlie possession, is not an eviction, and, 
 therefore, not a breach of the covenant of warranty.^ 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 2:)ossessiou to the jjlaintiff in ejectment, or had purchased his 
 rights and remained in possession under his title.' Of course, a 
 
 ' Poyntell v. Spenser, 6 Pa. St. 254. An execution levied on land under a, 
 judgment against the covenantor and seisin and possession delivered to the judg- 
 ment 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. 333; 3 Am. Dec. 182. An 
 entry upon a mortgaged estate to foreclose upon breach of condition is, without 
 actual ouster, an eviction for which a warrantor can recover upon his covenant. 
 Furnas v. Durgin, 119 Mass. 500; 20 Am. Kep. 341. 
 
 '^ Axtel V. Chase, 83 Ind. 546. 
 
 8 Clement v. Collins, 59 Ga. 124; Davis v. Smith, 5 Ga. 274; 47 Am. Dec. 379; 
 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.) 301. Ferris v. Harshea, 
 Mart. & Yerg. (Tenn.) 48; Stipe v. Stipe, 3 Head (Tenn.), 169, aemble. Kerr v. 
 Shaw, 13 Johns. (N. Y.) 236. Knepper v. Kurtz, 58 Pa. St. 480; Paul v. Wit- 
 man, 3 Watts & S. (Pa.) 407. Such, also, is the rule of the civil law. Fowler v. 
 Smith, 3 Cal. 568, citing Pothier Cont. 89. 
 
 ^ In Drury v. Shumway, 1 D. Chip. (Yt.) 110; 1 Am. Dec. 704, it was held that 
 a judgment in ejectment against the covenantee was an eviction. The covenant 
 of warranty was broken by the covenantor's failing to defend the title. See, also. 
 Chandler v. Brown, 59 N. H. 370. And in Woodward v. Allen, 3 Dana (Ky.), 
 164, it was broadly declared that a judgment against the covenantee in ejectment, 
 without any other fact, was equivalent to eviction, but In all these cases it seems 
 that the covenantee had actually attorned to the ejectment plaintiff, or purchased 
 his title. But see Boyd v. Bartlett, 36 Vt. 9, where the broad rule that a recovery 
 in ejectment against the covenantee by virtue of an older and paramount title, 
 was a breach of the covenant of warranty without actual eviction, was laid down. 
 So, also, in King v. Kilbride, 58 Conn. 109; 19Atl. Rep. 519, obiter, &nA Clark 
 V. AYhitehead, 47 Ga, 516. Such, also, seems to be the rule in Texas the cove- 
 
COVENANTS OF WARRANTY AND FOE QUIET ENJOYMENT. 351 
 
 mere action of ejectment cannot amount to a breach of the cove- 
 nant of warranty until it resuhs in an actual or virtual eviction of 
 the grantee.^ A voluntary abandonment of possession by the cove- 
 nantee after judgment in ejectment will not be construed an 
 eviction, unless possession of the premises be thereafter taken by 
 the plaintiff in ejectment.- 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.' A judgment in ejectment for the alternative value of the 
 premises, without improvements, if the plaintiff should elect to 
 accept the same instead of possession, has been held a constructive 
 eviction and breacli of warranty.^ 
 
 § 149. Hostile assertion of adverse claim. The rule that a 
 surrender of the premises to an adverse claimant operates a con- 
 structive eviction and breach of the covenant of warranty is to be 
 taken with this qualification, namely, tliat the surrender must have 
 been in consequence of a hostile assertion of the rights of the 
 adverse claimant.'^ In this respect the covenant of warranty has 
 been distinguished from the covenant of seisin or the covenant 
 against incumbrances. These ai-e broken as soon as made if tlie 
 title be bad, or the estate incumbered, and the purchase of an 
 
 nantee being there permitted, when sued in ejectment, to implead the covenantor, 
 and have judgment over against him, as in case of breach of warranty, if the 
 adverse claim be established. Kirby v. Estill, 75 Tex. 485; 12 8. W. Eep. 807; 
 Johns V. Hardin, 81 Tex. 37; 16 S. W. Rep. 623. InFinton v. Eggleston, 61 Hun 
 (N.Y.), 246; ISN. 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 & Dauphin K. Co. v. Schmoele, 57 Pa. St. 271. Park v. Bates, 12 Vt. 
 381; 36 Am. Dec. 347, in so far as it holds that a suit commenced by an adverse 
 claimant against the grantee lo recover the possession, is a breach of the cove- 
 nant of warranty, is disapproved in Beebe v. Swartwout, 3 Gilm. (111.) 168. 
 
 ^Hagler v. Simpson, 1 Busbee (N. C), 384. 
 
 ' Leary v. Durham, 4 Ga. 593. 
 
 "Mason v. Kellogg, 38 Mich. 132. 
 
 * Morgan v. Hannibal & St. J. R. Co. 63 Mo. 139. Punk v. Creswell, 5 Clarke 
 (lo.), 63. 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. 
 
352 MARKETABLE TITLE TO EEAL ESTATE. 
 
 adverge claim or an incnrabrance or surrender of the possession to 
 the claimant, adds nothing to the breach.^ It lias been held that a 
 sale of the premises by the adverse claimant does not amount to a 
 hostile assertion of his title. ^ An exception to this rule has been 
 declared to exist where the sale is by the State while holding the 
 paramount title. In such a case fiersons in possession imder defec- 
 tive titles may abandon the premises and sue for a breach of the 
 covenant of warranty as if actually evicted.^ 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.'' 
 
 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 liad 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 tliat the 
 person who entered had a title paramount to that of his grantor,^ 
 unless the surrender was made after judgment in ejectment against 
 
 ' Funk V. Creswell, 5 CI. (Iowa) 62. 
 
 ' 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. 737, 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 abandoned the 
 possession after the sale. 
 
 " Glenn v. Thistle, 23 Miss. 42; Green v. Irving, 54 Miss. 450; 28 Am. Rep. 360. 
 Brown v. Allen, 57 Hua (N. Y.), 219; 10 N. Y. Supp. 714. McGary v. Hastings, 
 39 Gal. 868; 2 Am. Rep. 456. Dillahunty v. Little Rock & Fort S. R. Co., (Ark.) 
 27 S. W. Rep. 1002; Ahbott 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, 53 Fed. 
 Rep. 926, obiter. 
 
 'Hamilton V. Cutts, 4 Mass. 349, 353; 3 Am. Dec. 233. Greenvault v. Davis, 
 4 Hill (N. T.), 648. Lambert v. Estes, 99 Mo. 604; 13 S. W. Rep. 284. Snyder 
 V. Jennings, 15 Neb. 372; 19 N. ^Y. 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. Poster, 5 
 Clarke (lo.), 287; Funk v. Creswell, 5 Clarke (lo.), 62; Thomas v. Stickle, 33 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. 
 
COVENANTS OF WAREANTY AND FOE QUIET ENJOYMENT. 353 
 
 himself which the grantor was requested to defend.' A contrary 
 rule would subject the defendant to much hardship, and encourage 
 fraud and collusion on the part of the purchaser and adverse 
 claimants. 
 
 "We have seen that a mere judgment in ejectment or other pos- 
 sessory action against the covenantee is not equivalent to eviction.^ 
 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.' 
 
 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,^ but they have been frequently over- 
 ruled or disapproved, and are no longer regarded as authority.' 
 
 § 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 reqiiire 
 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 shall submit to an actual 
 forcible expulsion with or without legal process in order that he 
 may have an action on the covenant of warranty. The ouster by 
 purchase of the superior title without actually leaving the premises 
 is as effectual as it could be by peaceably leaving them or by suffer- 
 ing an actual expulsion. The covenantor's interests are in no way 
 subserved by requiring evidence of an actual dispossession of the 
 grantee. On the contrary he is benefited by the purchase, for 
 thereby he is saved the expense which would be incurred by the 
 grantee in defending the title.^ 
 
 Therefore it has been frequently held that the covenantee in pos- 
 
 1 Post, § 175. 
 ' Ante, p. 350. 
 
 'Bever v. North, 107 Ind. 545; 8 N. E. Rep. 576. 
 
 ■•Webb V. Alexander, 7 Wend. (N. Y.) 886; Lansing v. Van Alstyne, 2 Wend. 
 (N. y.) 563, note; Waldron v. McCarty, 3 Johns. (N. Y.) 473. 
 = Greenvault v. Davis, 4 Hill (N. Y.), 645, and cases cited, supra, p. 343, n. 
 « Loomis v. Bedel, 11 N. H. 74. Lane v. Fury, 31 Ohio St. 574. 
 45 
 
354 MARKETABLE TITLE TO EEAL ESTATE. 
 
 session of the estate maj^, to avoid an inevitable eviction, buy in the 
 paramount title or take a lease thereunder without actual change of 
 the possession.^ This he m&j 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.^ AVhile 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- 
 standing right at the time he took the conveyance and might have 
 acquired such right for a trifling sum.^ 
 
 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 superior 
 to that of the covenantor.^ A few early cases in Xew York and 
 elsewhere decide that the covenant of warranty is broken only by 
 an actual eviction, and that the purchase of an outstanding superior 
 
 'Rawle Govts. (5th ed.) § 142; 2 Greenl. Ev. § 344. Barlow v, Delaney, 40 
 Fed. Rep. 97. McGary v. Hastings, 39 C:\l. 361; 3 Am. Rep. 456. Amos v. 
 Cosby, 74 Ga. 793. Davenport v. Bartlett, 9 Ala. 179; Roebuck v. Dupuy, 7 
 Ala. 4S7. Sisk v. Woodruff, 15 111. 15, McConnell v. Downs, 48 111. 271; Cluy- 
 comb 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, 83 Iowa, 76. Spraguc v. Baker, 17 Mass. 586, leading case; 
 Lefflngwell v. Elliot, 10 Pick. (Mass.) 204; 19 Am. Dec. 343; Estabrook v. Smith, 
 6 Gray (jMass.), 577; 66 Am. Dec. 445; Kramer v. Carter, 136 Mass. 504. Pctrie 
 v. Folz, .54 N. Y. Super. Ct. 323. King v. Kerr, 5 Ohio, 158; 22 Am. Dec. 777. 
 Brown v. Dickerson, 13 Pa. St. 373. Austin v. McKinney, 5 Lea (Teun.), 499. 
 Denson v. Love, 58 Tex. 468. Haffey v. Birchetts, 11 Leigh (Va.), 88, 88. Turner 
 v. Goodrich, 36 Vt. 708. Potwin v. Blasher, 9 Wash. 460; 37 Pac. Rep. 710. 
 
 '^Hanson v. Buckner, 4 Dana (Ky.), 254. 
 
 =1 Kimball v. Saguin, (Iowa) 53 N. W. Rep. 116. 
 
 ^Rawle Govts, for Title (5th ed.), § 146. Turner v. Goodrich, 5 Deane (Vt.), 
 709. Walker v. Deane, 79 Mo. 664. Kramer v. Carter, 136 Mass. 504. 
 
COVENANTS OF WAEEANTY AND FOE QUIET ENJOYMENT. 355 
 
 title, or a surrender to the holder thereof, is insufficient to establish 
 an eviction ;' but the rule as stated prevails novs', it is believed, in 
 that State,^ and generally throughout the entire country. If a lessee 
 under a defective title is disturbed by a party having a paramount 
 title, he will not be restrained by his lease from purchasing the para- 
 mount title without the consent of his lessor, though he has not been 
 evicted or ousted from the possession. The rule that a tenant can- 
 not deny the title of his landlord has no application to such a case.' 
 It is not necessary for the covenantee to show that he has actually 
 paid the price of the outstanding title. It is sufficient if an obliga- 
 tion to pay, and the time and manner in which payment is to be 
 made, appears."* 
 
 The discharge of a prior incumbrance in order to prevent an 
 inevitable eviction, is also a constructive breach of the covenant of 
 warranty.'' This covenant is broken by a lawful eviction, whether 
 under an incumbrance or a paramount title, and the discharge of 
 
 'Waldronv. 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. 383; 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. 
 
 2 Beyer V. Schulze, 54 N. Y. Super. Ct. 213; Petrie v. Folz, 54 N. Y, Super. 
 Ct. 223; Bordewell v. Colie, 1 Lans. (N. Y.) 146. Rawle Govts. (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 reimburse- 
 ment, either of which accomplishes precisely the same purpose as an action for 
 breach of the covenant of warranty. Wilty v. Hightower, 13 Sm. & M. (Miss.) 
 478; Dennis v, Heath, 11 Sm. &M. 206; Burruss v. Wilkinson, 81 Miss. 537; Kirk- 
 patrick v. Miller, 50 Miss. 531; Dyer v. Britton, 5^^ Miss. 370; Green v. Irving, 
 54 Miss. 450; 28 Am. Rep. 360. 
 
 ^ George v. Putney, 4 Cush. (Mass.) 355; 50 Am. Dec. 788; Greene v. Muuson, 
 9 Vt. 87; 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. 
 
 ''Hooper v. Sac Co. Bank, 72 Iowa, 280; 38 N. W. Kep. 681; Royer v. Faster, 
 63 Iowa, 333; 17 N. W. Rep. 516. 
 
 'Estabrook v. Smith, 6 Gray (Mass), 577; 66 Am. Dec. 443; Whitney v. Dens- 
 more, 6 Cush. (Mass.) 128; Bemis v. Smith, 10 Met. (Mass.) 194. Collier v. Cow- 
 ger, 53 Ark. 322; 13 S. W. Rep. 703. Stipe v. Stipe, 3 Head (Tenn.), 171; 
 Kinney v. Norton, 10 Heisk. (Tenn.) 388. Brown v. Dickenson, 12 Pa. St. 373, 
 disapproving Waldron v. McCarty, 3 Johns. (N. Y.) 471, Stewart v. Drake, 4 
 
356 MARKETABLE TITLE TO EEAL ESTATE. 
 
 the incumbrance to prevent eviction, is as much a constructive 
 eviction as a purchase of the outstanding title for the same purpose.^ 
 The covenantor will not, in an an action on the warranty, be per- 
 mitted to show that the purchaser agreed, by parol, to take subject 
 to the incumbrance. The rule permitting the true consideration of 
 a deed to be shown does not extend thus far.^ 
 
 § 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 ajjplies to a purchaser 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.' 
 
 Ilalst. (N. J. L.) 139. Cole v. Lee, 30 Me. 392; Kelly v. Lowe, 18 Jle. 244. 
 McLean v. . Webster, (Kans.) 26 Pac. Rep. 10. Where an incumbrance has 
 ripened into an eviction and worked a breach of the covenant of warranty, the 
 liability upon that covenant and the covenant against incumbrances, is substan- 
 tially identical; the damages recovered under either are for the eviction. Kramer 
 V. Carter, 136 Mass. 504; Harrington v. Murphy, 109 Mass. 299. In Kelly v. 
 Lowe, 18 Me. 344, it was held that the covenantee might recover the amount 
 paid by him to remove an incumbrance, 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 pay- 
 ment, an execution had been issued on the judgmeni^, and levied on other lands 
 subject to the lien. Dunkleburger v. Whitehall, 70 Ind. 214. 
 
 'Bricker v. Bricker, 11 Ohio St. 240. Martin v. Atlcinson, 7 6a. 238; 50 Am. 
 Dec. 403. 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 con- 
 summation of title in the purchaser at the tax sale, did not amount to an eviction, 
 and that the covenantee could not 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. T.) 18. 
 
 2 Bever v. North, 107 Ind. 545; 8 N. E. Rep. 576. Beach v. Packard, 10 Vt. 
 96; 38 Am. Dec. 185. 
 
 «Rawle Govts. (5th ed.) §§ 55, 150. Sprague v. Baker, 17 Mass. 586, 590. The 
 voluntary payment of taxes by the covenantee assessed upon the warranted land 
 at the time of the conveyance, before any attempt is made to collect the same. 
 
COVENANTS OF ^VAREANTY AND FOR QUIET ENJOYMENT. 357 
 
 But practically this rnle 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.* So also 
 where the deed contains a covenant against incumbrances, and the 
 covenantee discharges or buys in an incumbrance on the estate.* 
 
 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,^ unless the purchase was made 
 after judgment against the covenantee in ejectment, or other posses- 
 sory action, which the covenantor was requested to defend.' 
 
 The measure of damages which the purchaser may recover where 
 he buys in the outstanding title is hereafter considered.'' 
 
 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. Eep. 456. Morgan 
 V. Hannibal & St. J. R. Co., 68 Mo. 139. Turner v. Goodrich. 26 Vt. 708. In 
 Coble V. Willborn, 2 Dev. L. (N. C.) 390, this rule was carried to its furthest 
 extent. Judgment in ejectment had been recovered against the covenantee, and 
 before the issuing of a writ of possession, or any actual disturbance of the pos- 
 session, he purchased the rights of the plaintiff in ejectment, and it was held that 
 this constituted no breach of the covenant of warranty. 
 
 ' Ante, " Covenant of Seisin," p. 273. Anderson v. Knox, 20 Ala. 161. Rawle 
 Govts. (5th ed.) § 192. 
 
 ' Id. Ante, p. 309. 
 
 '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, 36 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 cove- 
 nantee was compelled to proceed in equity to obtain a decree correcting a defec- 
 tive 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 proceeding 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 iu 
 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. 
 
 s Post, this chapter, § 168. 
 
358 MAEKETABLE 'i'lTLE TO EEAL ESTATE. 
 
 § 152. Loss of incorporeal hereditament. Adverse ease- 
 ments. The covenant of warranty extends to and embraces not 
 only the granted premises themselves, but all rights, easements and 
 incorporeal hereditaments incident or appurtenant thereto, so that if 
 the covenantee be deprived of any of these by one having lawful 
 right, the covenant is broken, and a right of action accrues. The 
 early case of Mitchell v. "Warner^ decided that ttie covenant of war- 
 ranty was not broken by the loss of an easement appurtenant to the 
 premises, but this decision has been frequently overruled, expressly 
 or substantially, and the rule just stated may be regarded as estab- 
 lished by the weight of authority in America.^ If, however, at the 
 time of the grant there is an apparent easement over adjoining lands 
 belonging to another, not necessarily attached as an appurtenance 
 to the land conveyed, and the grantor has no right or title to 
 such easement, an interruption of the use thereof by the adjoin- 
 ing owner does not jnake the grantor liable for damages under cove- 
 nants of warranty and quiet enjoyment, although the grant was 
 " with appurtenances."^ And where a right to construct 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.^ 
 
 The covenants of \\'arranty and for quiet enjoyment will also be 
 
 ' 5 Conn. 497. 
 
 2Rawle Govts. (5th ed) § 153, n. Wilson v. Cochran, 4() Pa. St. 233. Kramer 
 V. Carter, 136 Mass. 507. Adama v. Couover, 87 N. Y. 422. A covenant for 
 quiet enjoyment in a deed is broken where an adjoining owner raises a dam on 
 his land hy 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. 334, distin- 
 guishing Green v. Collins, 86 N. Y. 246; 40 Am. Rep. 531. A covenant for quiet 
 enjoyment is as mucli 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. 333. 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. 331. 
 
 2 Green v. Collins, 80 N. Y. 246; 40 Am Rep. 531. 
 
 * Griswold v. Allen, 33 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. 693. 
 
COVENANTS OF WAEEANTY AND FOE QUIET ENJOYMENT. 359 
 
 broken if a stranger establish a right to an easement in the war- 
 ranted premises.^ Actual expulsion of the grantee from the whole 
 and every part of the land is not essential to a breach of these cove- 
 nants; it is sufficient if there is a disturbance of the free and 
 uninterrupted use of the land by one having paramount title.^ 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.^ 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.* 
 
 § 153. COVENANTS OF WARRANTY AND ftUIET ENJOYMENT 
 RUN WITH THE LAND. General rule. The covenants of warranty 
 
 ' Giles V. Dugro, 1 Duer (N. Y.), 234; Scriver v. Smith, 100 N. Y. 471; 53 Am. 
 Rep. 324. Russ v. Steele, 40 Vt. 310; Clark v. Conroe, 38 Vt. 469. Haynes v. 
 Young, 36 Me. 557; Lamb v. Danforth, 59 Me. 332; 8 Am. Rep. 426. The exist- 
 ence and use of a private right of way over the granted premises is a breach of 
 the covenant of warranty. Rea v. Minkler, 5 Lans. (N. Y.) 196. Browning v. 
 Canal Co., 12 La. Ann. 541. Russ v. Steele, 40 "\'t. 310; Clark v. Conroe, 38 Vt. 
 469. Butt V. Riffe, 78 Kv. 3.53. 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 under- 
 ground pipes from a spring on the warranted premises. MclMullan y. Wooley, 
 2 Lans. (N. Y.) 395. 
 
 'Rea V. Minkler, 5 Lans. (N. Y.) 196. 
 
 2 Russ V. Steele, 40 Vt. 310. In Kramer v. Carter, 136 Mass. 504, the breach 
 of the covenant of warranty complained of was the existence of a building 
 restriction in a deed under which the plaintiff's grantor held, by which the plain- 
 tiff 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 warranted premises, and annexed and appurtenant 
 lo adjoining lands, and forming 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 covenant. * * * If the plaintiff had erected a building upon 
 the land which is subject to the restriction, and the owners of the adjoining tene- 
 ments had lawfully demolished it, it would have been an eviction, and equally 
 so whether done by an act in pais, or by action at law, or by a suit in equity." 
 
 *Rea V. Minkler, 5 Lans. (N. Y.) 196. 
 
360 MARKETABLE TITLE TO EBAL ESTATE. 
 
 and for quiet enjoyment ^ are prospective in their operation and run 
 with the land until they are broken ; that is, they enure to the bene- 
 fit of the last purchaser of the land, upon his eviction, actual or 
 constructive, by one claiming under an adverse title.^ 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.^ 
 
 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 cove- 
 nantee is a mere trustee to receive and hold the title and the 
 covenants for the use of the true owner.'' As a general rule, how- 
 ever, it seems that a mere equitable owner of the premises, such as 
 one who has paid the purchase money, but has not received a con- 
 veyance, is not entitled at law to the benefit of covenants that run 
 with the land.'"' 
 
 ' The covenant for quiet enjoyment, as a covenant running with the land, is 
 subject to the same construction as the covenant of warranty. Hemy v. McBn- 
 tyre, 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. 
 
 -Co. Litt. (Thomas' ed.) 381 n,; 4 Kent Com. 459; Piatt on Covts. 304; Rawle 
 Covt. § 313; 3 Washb. Real Prop. (3d ed.) 399. Beddoe v. Wadsworth, 21 Wend. 
 (N. Y.) 120; Ford v. ATalworth, 19 Wend. (N. Y.) 33-1; Cunningham v. Knight, 
 
 1 Barb. (N. Y.) 399; Blydenburgh v, Cotheal, 1 Duer (N. Y.), 176. Carter v. 
 Denman, 3 Zab. (N. J. L.) 260. Blackwell v. Atkinson, 14 Cal. 470. Brown v. 
 Metz, 33 111. 339; 8.5 Am. Dec. 277. Crisfleld v. Storr, 36 Md. 129; 11 Am. Rep. 
 480. Butler v. Barnes, 21 Atl. Rep. 419. Shelton v. Codman, 3 Cush. (Mass.) 
 318; "Whitney v. Dinsmore, 6 Cush. (Mass.) 138. Swasey v. Brooks, 30 Vt. 692. 
 Saunders v. Planiken, 77 Tex. 664; 14 S. W. Rep. 236; Flaniken v. Neal, 67 Tex. 
 629; 4 S. "W. Rep. 212. Mitchell v. Warner, 5 Conn. 497. Scoffin v. GrandstafE, 
 12 Kans. 365. Susquehanna Coal Co. v. Quick, 61 Pa. St. 339. Williams v. 
 Beeman, 2 Dev. (N. C.) 483. Nunnally v. White, 3 Met. (Ky.) 584. 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 
 waiTanty in a deed under which he claimed title. Allen v. Kennedy, 91 Mo. 324; 
 
 2 S. W. Rep. 142. 
 
 8 Co. Litt. 384a ; 3 Sugd. Vend. (8th Am. ed.) 196, 237. 
 * Hall V. Plaino, 14 Ohio St. 417. Harper v. Perry, 28 Iowa, 57. 
 = Dart on Vendors (5th ed.), 780. As to the rights of a mortgagee, see post, 
 §160. 
 
COVENANTS OF WARRANTY AND FOE QUIET ENJOYMENT. 361 
 
 § 154. Assignee may sue in his own name. The rights of an 
 assignee of covenants running with the land are cognizable in a 
 court of law by reason of the privity of estate existing between him 
 and the covenantor. He may, therefore, bring an action in his own 
 name to recover damages for a breach of the covenant.^ 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 contained in a convey- 
 ' ance by the latter.' 
 
 § 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 eifect be to subject the warrantor to numerous 
 suits, and possibly to a greater liability than he would have incurred 
 if he had been sued by the original covenantee.' Where a covenant 
 running with the land is divisible in its nature, if the entire interest 
 in the land passes by assignment to separate and distinct individuals, 
 the covenant will attach to each parcel, pro tanto} Whether heirs 
 or devisees may maintain separate actions on a covenant of war- 
 ranty has been made a question in a case which decides that they 
 may maintain a joint action on the covenant.'' If the warranted 
 premises be subdivided by the grantee, and the several lots con- 
 
 ' Suydam v. Jones, 10 Wend. (N. Y.) 181; 25 Am. Dec. 552. 
 
 ' Ante, p. 260, 267. 
 
 2 3 Com. Dig. 262; Dart Vend. (5th ed.) 780; 2 Co. Litt. on p. 309; 3 Washb. 
 Real 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. Schofleld 
 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. 885a; 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. 
 46 
 
362 MARKETABLE TITLE TO REAL ESTATE. 
 
 veyed to clifEerent persons, a remote grantee of one of the lots may 
 maintain an action on the covenant of the original grantor without 
 joining the vendees of the other lots. In such a case the rights of 
 the plaintiff are not affected by the fact that the other grantees have 
 failed to sue, or have sufEered their rights of action to become 
 barred by the statute.^ 
 
 § 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 
 covenant 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 created, 
 that he is entitled to an action against the original covenantor.^ 
 Hence, it follows that the covenantee cannot separate the covenant 
 from the land by assigning the benefit thereof without transferring 
 the land ; * nor can he release the covenantor from liability after he 
 has transferred the land ; ^ though it seems that such a release will 
 
 ■ Wliitzmaii v. Hirah, 3 Pick. (Tenn.) 513; 11 8. W. Rep. 421. 
 
 'Eawle Covt. § 313. 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 suflicient seal, would not entitle the intended grantee to the benefit of cove- 
 nant of warranty running with the land. 
 
 •Ante, p. 260. 4 Cruise's Dig. 316; 4 Kent Com. 472, n. It is not because of 
 the delivery of the deed that the subsequent grantee becomes entitled to the 
 benefit of the covenant which it contains. It is because he takes the estate and 
 stands in the place of his vendor. Hopkins v. Lane, 9 Yerg. (Tenn.) 84. 
 
 ■lEly V. Hergesell, 46 Mich. 335. Lewis v. Cook, 13 Ired. L. (N. C.) 193. Law- 
 rence V. Senter, 4 Sneed (Tenn.), 33. 
 
 'Middlemore v. Goodale, Cro. Car. 503. Suydam v. Jones, 10 Wend. (N. Y.) 
 184; 25 Am. Dec. 552. Field v, Snell, 4 Cush. (Mass.) 504. Crooker v. Jewell, 
 29 Me. 527; Littlefield v. Getohell, 83 Me. 392. Cooper v. Granberry, 33 Miss. 
 117. Abby v. Goodrich, 3 Day (Conn.), 433; but see Clark v. Johnson, 5 Day 
 (Conn.), 273. After the covenantee has conveyed the land he cannot release the 
 covenantor until he has paid damages to the party evicted, thereby satisfying the 
 claims of the latter to the benefit of the covenant. Brown v. Staples, 28 Me. 497; 
 48 Am. Dec. 504. Thompson v. Shattuck, 3 Met. (Mass.) 615. Chase v. Weston, 
 12 N. H. 413. 
 
COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 363 
 
 be valid, even as against an assignee, if executed by the covenantee 
 before the land is transferred.' When the covenantee parts with 
 the land he loses all control of the covenants that run with it, and 
 can maintain no action for a breach occurring thereafter, even 
 though it be instituted and pursued for the benefit of the transferee,'' 
 unless he has made good the breach to the party evicted.' 
 
 § 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 imme- 
 diate conveyance to him, or any intermediate conveyance was 
 without warranty, since a mere quit claim or release is as effectual 
 to pass the riglits of the original covenantee as a conveyance with, 
 unlimited covenants for title.* The covenant of warranty attaches 
 to and passes with the land without regard to the nature of the con- 
 
 ' Rawle Govts, for Title, §§ 321, 233. But see post, § 162. 
 
 « Griffin V. Fail-brother, 1 Fairf. (Me.) 91; Crooker v. Jewell, 29 Me. 537. 
 
 •Post, § 158. 
 
 *Bao. Abr. Letter N.; 1 Co. Inst. 384b. Spencer's Case, 5 Coke, 17. Cummins 
 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 t. 
 Triplett, 5 Litt. (Ky.) 348; Hobbs v. King, 3 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, 38 Me. 503; 48 Am. Dec. 504. Beddoe v. "Wadsworth, 21 
 Wend. (N. Y.) 130; Andrews v. Wolcott, 16 Barb. (N. Y.) 23; Hunt v. Amidon, 
 4 Hill (N. Y.), 345; 40 Am. Dec. 283; Jenks v. Quinn, 137 N. Y. 333; 33 N. E. 
 Rep. 376. De Chaumont v. Forsyth, 3 Pa. 514. Gunter v. Williams. 40 Ala. 573. 
 Hopkins v. Lane, 9 Yerg. (Tenn.) 83. Redwine v. Brown, 10 Ga. 319. Hodges 
 V. Saunders, 17 Pick. (Mass.) 470. Scoffins v. Grandstaff, 13 Kans. 365. Saun- 
 ders V. Flauniken, 77 Tex. 662; 14 S. W. Rep. 336. But where A., B. and C. 
 conveyed with general warranty to D. , as trustee, with power to convey with 
 covenant only against his own acts, and D. so conveys, his grantee can maintain 
 no action as assignee on the covenant in the deed from A., B. and C. upon 
 eviction under a paramount title derived from A., B. and C. Abbott v. Hills, 
 (Mass.) 33 N. E. Rep. 393. 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 hy 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 ho was not entitled to recover 
 because his assignment was by deed without warranty, does not appear to have 
 been made. 
 
364 MAEKETABLE TITLE TO EEAL ESTATE. 
 
 veyance by which the transfer of the land is effected.' 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 covenants held by the 
 person last seised. In fact any person to whom the land and the 
 legal title thereto passes, whether by descent, devise or conveyance, 
 succeeds to all the rights of the covenantee,' except perhaps, in the 
 single instance, of a purchaser at a tax sale.^ 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."* 
 
 § 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 sat- 
 isfy a grantee subsequent to himself for loss of the land.'^ Hence, it 
 follows that if the intermediate grantee conveyed without warranty, 
 
 ' Thus, in Hobbs v. King, 3 Met. (Ky.) 139, it was held that the conveyance of 
 &feme covert, incompetent to bind herself by covenants of warranty, was suffi- 
 cient to pass to her grantee the benefit of covenants contained in the conveyance 
 to her. 
 
 ' 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 Teates (Pa.), 34; 1 Am. Dec. 326. White v. Presly, 54 Miss. 313. 
 Lewis V. Cook, 13 Ired. L. 193. Williams v. Burg, 9 Lea (Tenn.), 4.55. 
 
 'Eawle Govts. (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. 
 
 ° Allen v. Little, 36 Me. 170; Fairbrothcr v. Griffln, 10 Me. 96. Baxter v. 
 Ryerss, 13 Barb. (N. Y.) 267. Wheeler v. Sohier, 3 Gush. (Mass.) 219, disapprov- 
 ing 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.) 333; 13 Am. Dec. 167. Hampton v. Pool, 38 Qa. 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. Giv. 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 with- 
 out himself incurring any liability. For if he conveyed without warranty his 
 grantee could have no recourse against him for indemnity, though he might him- 
 self have recovered full damages from the covenantor. 
 
COVENANTS OF WAEEANTY AND FOE QUIET ENJOYMENT. 365 
 
 80 that no liability could devolve upon him for a subsequent eviction 
 from the premises, he can maintain no action against the original 
 covenantor for the breach.* 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.^ 
 But this decision has been overruled in the State in which it was 
 rendered,^ and frequently disapproved in others,^ and the rule estab- 
 lished 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.'' In order to be " damni- 
 fied " it is not necessary that a judgment shall have been recovered 
 
 ' 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 he 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, however, disapproved on 
 this point. See cases cited, n. 4 below. 
 
 2 Kane v. Sanger, 14 Johns. (N. Y.) 89. 
 
 3 Withey v. Mumford, 5 Cow. (N. Y.) 137; Suydam v, Jones, 10 Wend. (N. Y.) 
 184; Preiss v. Poidevin, 19 Abb. N. Cas. (IST. Y.) 123. 
 
 * Williams v. Wetherbee, 1 Aik. (Vt.) 333. Wheeler v. Sohier, 3 Cush. (Mass.) 
 319. Eedwine v. Brown, 10 Ga. 819. Hopkins v. Lane, 9 Yerg. (Tenn.) 79; 
 Lawrence v. Senter, 4 Sneed (Tenn.), 53. 
 
 ^ Cases cited supra, n. 3, p. 361. Garlock v. Cross, 5 Cow. (N. Y.) 143; Withey 
 V. Mumford, 5 Cow. (N. Y.) 137. IMarkland v. Crump, 1 Dev. & Bat. (N. C.) 94; 27 
 Am. Dec. 230. In Booth v. Starr, 1 Conn. 348; 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 dam- 
 age 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 satisfac- 
 tion by an intermediate covenantee against a private 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 otherwise 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 sundry different covenantees for the same breach of covenant." 
 
366 MARKETABLE TITLE TO REAL ESTATE. 
 
 against the intermediate covenantee. He may voluntarily satisfy 
 his grantee who has been evicted, and then recover on the covenant 
 of his grantor, taking, however, the risk of having the latter estab- 
 lish the superiority of his title.' 
 
 § 159, Remote assignee may sue original covenantor. The 
 last grantee or assignee may maintain simultaneous actions against 
 each prior successive grantor who conveyed with warranty and 
 recover a several judgment against each f but satisfaction of one of 
 the judgments will be satisfaction of all, and may be pleaded in bar 
 of any other action on the covenant by the same plaintiff, or by any 
 subsequent covenantee to Avhom the party making satisfaction may 
 be liable,' even though the judgment satisfied be less in amount 
 than one recovered against such subsequent covenantee by the last 
 grantee.'' If the land came to the party evicted through several 
 
 ' 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 tlie rule stated in the text, by a loss of the 
 right to recover the unpaid purchase money from his evicted grantee, is over- 
 ruled, it is apprehended, by the case cited supra, notes 3, 4, 5, p. 365. 
 
 » Rawle Govt, § 214. 
 
 'King v. Kerr, 5 Ohio, 155; 23 Am. Dec. 777; Foote v. Burnett, 10 Ohio, 317; 
 36 Am, Dec. 90; Wilson v, Taylor, 9 Ohio St. 595; 75 Am. Dec. 488, 
 
 ■•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 sepa- 
 rate 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 question 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 judgment, larger in amount, 
 recovered against him by the last grantee. The question was presented by 
 demm-rer to a pica of the first grantor setting up this defense in an action against 
 him by his covenantee, the second grantor. The court, by Brinkerhoff, C. J,, 
 said: "Tlie question seems to be one of first impression, and our minds are not 
 free from dilBculty 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 suiiered 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 reco\er 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 the subsequent 
 
COVENANTS OF WAKEANTr AND FOE QUIET ENJOYMENT. 367 
 
 successive conveyances with warranty, he is not obhged to sue first 
 his immediate covenantor, but may maintain an action against any 
 other of the prior grantors, and a judgment against any one of these, 
 so long as it remains unsatisfied, will be no bar to an action against 
 the others.' 
 
 § 160. Mortgagee entitled to benefit of covenant of war- 
 ranty. The general rule is that a mortgagee is at law entitled, as 
 assignee, to the benefit of a covenant of warranty contained in any 
 conveyance under which the mortgagor claims title, so far as may 
 he necessary to preserve unimpaired the security intended by the 
 mortgage.^ In equity,^ however, and at law in such of the Ameri- 
 can 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 
 
 grantees, it seems to us that Weis' claim under all the covenants must be held 
 satisfied; and that all enforcement of the Judgments against the other intermedi- 
 ate covenantors was wrongful and in violation of the principle that he could have 
 but one satisfaction." The court then suggested 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. 873; Cross v. Robinson, 21 Conn. 387. 
 Lloyd V. Quinby, 5 Ohio St. 262. Andrews v. Wolcott, 16 Barb. (N. 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. Hep. 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 bene- 
 ficiary 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 McG-oodwin v. Stephen- 
 son, 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 recov- 
 ered a judgment for damages. This was reversed on appeal, the court holding 
 that the legal title and with it the right to the benefit of the covenant remained 
 in the mortgagee, and that so long as the mortgage remained in full force and 
 imsatisfied the mortgagor could maintain no action on the covenant. 
 
 8 Dart Vendors (5th ed,), 780; Rawle Govt. § 219. 
 
368 MAEKETABLB TITLE TO BEAT, ESTATE. 
 
 mortgagor/ a purchaser from tlie mortgagor is treated as an 
 assignee of the covenant, subject to the satisfaction of the mortgage. 
 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 cove- 
 nant of warranty would not be recognized in a court of law, and he 
 would be driven to a court of equity for relief.^ 
 
 If one holding under a conveyance with warranty execute a pur- 
 chase-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,"* that if one unlawfully in possession of an estate convey it 
 
 1 Davidson v. Cox, 11 Neb. 250; 9 N. W. Rep. 95. White v. Whitney, 3 Met. 
 (Mass.) 81. Downer, J., in Wright v. Sperry, 21 Wis. 334. Ely v. Hergesell, 
 46 Mich. 325; 9 N. W. Rep. 435. 
 
 ' In Kavanagh v. Kingston, 39 Upp. Can. Q. B. 415, and Claxton v. Gilben, 
 24 Upp. Can. C. B. 500, it was decided that where the purchaser of land took a 
 conveyance with warranty from the vendor and executed a mortgage to secure 
 the purchase money, the benefit of the covenants would at law rest in the mort- 
 gagee notwithstanding the fact that he was the party bound hj 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, however, that in such a 
 case the covenants would be enforced in equity for the benefit of the mortgagor. 
 In Brown v. Staples, 28 Me. 49T; 48 Am. Dec. 504, it was held that the cove- 
 nants in the mortgage would not jirevent 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. T.) 545; 24 Am. Dec. 246. 
 
 'Hubbard v. Norton, 10 Conn. 433. Haynes v. Stevens, 11 N. H. 28. 
 
 *Noke 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 defendant, that the plaintiff 
 could not recover without showing an eviction under a paramount title, and that, 
 if he showed such an eviction, he established the fact that the original cove- 
 nantor was wrongfully in possession and that no estate passed from him except 
 a lease by estoppel, and consequently there was nothing with which the covenant 
 could run so as lo benefit an assignee. Judgment was entered for the defendant. 
 Mr. Rawle says that this case has not been followed by recent decisions in Eng- 
 land, and regrets that the decision, " which was a mere professional triumph of 
 
COVENANTS OF WAEEANTY AND FOR CiUIBT ENJOYMENT. 369 
 
 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.' Obviously such a doctrine would destroy the 
 usefulness of the covenant of warranty as an assurance of the title 
 to those claiming under the covenantee, for, as a general rule, it is 
 only in case of an eviction under a paramount title that the assignee 
 has any occasion to call upon the covenantor for indemnity. 
 Accordingly the decision in question has not been followed to any 
 important extent in America. The rule generally prevailing here is 
 that if possession of the land actually passed from the covenantor 
 to the covenantee the subsequent assignee will be entitled to the 
 benefit of the covenant whether the original covenantor was ris-ht- 
 fully or wrongfully seised of the land.^ It is a rule, however, sup- 
 ported by the weight of American authority, that a covenant of 
 warranty does not enure to the benefit of an assignee unless the 
 original covenantor was actually seined and possession passed frtmi 
 him to his grantee.^ Upon a somewhat similar principle it has been 
 
 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 
 Govt. II 232, 236, citing Cnthbertson v. Irving, 4 Hurl. & Norm. 755; S. C, 1 
 Smith's L. Cas. 136. 
 
 ' Nesbit V. Nesbit, Conf. Rep. (N. 0.) 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. In Beddoe v. Wadsworth, 21 Wend. 
 (N. Y.) 120, it was held that if possession was taken under the deed and trans- 
 ferred by a subsequent conveyance, an action might be maintained by the last 
 grantee upon the covenants, because such possession would carry the covenants 
 annexed to the land although no title was in fact in the grantor at the time of the 
 conveyance. Without such possession there can be no eviction, which is indis- 
 pensable for laying the ground of any action upon the covenant of warranty. 
 Moore v, Merrill, 17 N. H. 75; 43 Am. Dec. 593. One cann(jt be evicted if he 
 has never had either actual or constructive possession of the premises. Matte- 
 son V. Vaughn, 38 Mich. 373. 
 
 3 Slater v. Rawson, 1 Met. (Mass.) 455. Hacker v. Storer, 8 Gr. (Me.) 228, and 
 cases cited in last note. The last grantee, whose grantor was in actual posses- 
 sion, 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 
 47 
 
370 :\tAEKETAl?LE TITLE TO EBAL ESTATE. 
 
 lield that if A. convey an easement in the lands of B. with cove- 
 nants for title, a grantee of the covenantee could not have the 
 benefit of the covenants, for, no land having been conveyed, the 
 covenants conld not " run witli the land " in favor of the assignee.' 
 
 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 I'un with the 
 land, and that he will not be liable thereon to a remote grantee of the 
 premises ; in other words, that a covanant of warranty 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 subsequent grantee who holds no 
 assignment of the cause of action arising from the breach.^ 
 
 § 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 the 
 former is lessened f for example, an agreement at the time of 
 the covenant that the covenantee sliould pay off an incumbrance on 
 
 that case the land conveyed was vacant and unoccupied, and it appeared that the 
 original covenantors had never been in possession. Possession was taken by the 
 grantee, who reconveyed the premises to the plaintiff, who, upon eviction, 
 brought an action on the covenant of the original grantor. Judgment was ren- 
 dered for the plaintiff, the court disapproving the decision in Slater v. Rawson,. 
 supra. 
 
 ' Wheelock v. Thayer, 16 Pick. (Mass.) 68. Disapproved in "Wilson v. Coch- 
 ran, 46 Pa. St. 233. See'Eawle Govts. (5th ed.) 207, n. 
 
 'Mygatt V. Coe, 124 N. Y. 212; 26 N. E. Rep. 611, distinguishing Koke v. 
 Awdi'r, supra. In this case the defendant joined with his wife in a conveyance 
 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 para- 
 mount 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 Bkadlet, J., with whom 
 concurred Haight and Brown, JJ. 
 
 « Suydam v. Jones, 10 Wend. (N. Y.) 181; 25 Am. Dec. 553. Brown v. Staples, 
 28 Me. 497; 48 Am. Dec. 504. Eveleth v. Crouch, 15 Mass. 307. 
 
COVENANTS OF WARRANTY AND FOE QUIET ENJOYMENT. 371 
 
 the premises, as part of tLe consideration -^ or that the consideration 
 to be paid, should be less than that expressed in the conveyance 
 containing the covenant.' There seems to be no very clear reason 
 why a release by the covenantee should be sustained as against an 
 assignee without notice ; sucli 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,' and has been 
 held to be within a statute providing that a deed concerning lands, 
 fenements and" hereditaments, must be recorded in order to bind a 
 subsequent purchaser without notice.^ 
 
 § 163. Covenant extinguished by reconveyance to cove- 
 nantor. If the covenantee recanvey to the covenantor, or if by 
 act of the law or otherwise tlie premises be again vested in the 
 covenantor, the covenant of warranty is extinguished.^ 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 
 pi'ior 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." But in order that the reconveyance shall 
 extinguish 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." 
 
 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, 
 
 ' 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. 
 
 2 Kellogg V. Wood, 4 Paige Cli. (N. Y.) 578 
 
 "Susquehanna Coal Co, v. Quick, 61 Pa. St. 339. See, also, Field v. Snell, 4 
 Cush. (Mass.) 50. 
 
 » Co. Litt. 490a; Bac. Abr. "Warranty, O., p. 413. Goodel v. Bennett, 33 "Wis. 
 565. Silverman v. Loomis, 104 111. 137. 
 
 " Kellogg V. "Wood, 4 Paige Ch. (N. Y.) 614. 
 
 ' Bac. Abr. 451, n. ; 1 Co. Inst. 393a; Prest. Touch. 301. Birney v. Hann, 3 A. 
 K. Marsh. (Ky.) 332; 13 Am. Dec. 167. 
 
372 MARKETABLE TITLE TO EEAL ESTATE. 
 
 naming tliein and giving their dates, but it is not necessary that the 
 operative parts or the formalities of the execution of sucli convey- 
 ances should be set forth.^ 
 
 § 164. MEASURE OF DAMAGES. General rules. The measure 
 of damages in an action against a vendor for breach of a contract 
 for the sale of personal property is the difference between the con- 
 tract price and the market price.^ A contrary rule with respect to 
 personal property would seriously embarrass commercial trans- 
 actions 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 executory 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.^ But a 
 case in which the estate was sold and conveyed by the vendor in 
 good faith believing liis title to be good, is considered to stand upon 
 different grounds ; and if the estate be afterwards lost to the pur- 
 chaser through a failure of the title, the vendor will only be liable 
 to him in damages for the value of the land at the time the con- 
 tract was made, to be measured 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 tlie rule in case of a breach of an executory contract for the 
 sale of lands ; of a breach of the covenant of seisin ; * and of the cove- 
 
 ' Williams v. Weatlierbee, 1 Aik. (Vt.) 333. 
 
 ' Sedg. Dum, p. 365. 
 
 ^ Sedg. Dam, § 1010. Ante, p. 323. 
 
 "As to executory contracts see ante, p. 309; as to the covenant of seisin, ante, 
 p. 269, 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. 463, 405. King v. Kerr, 5 Ohio, 160; 22 Am. Dec. 77. 
 Brandt v. Poster, 5 Iowa, 397. Cox v. Strode, 3 Bibb (Ky.), 375; 5 Am. Dec. 603. 
 It has been deem?,d better to separate the cases arising under the covenants of 
 seisin and of warranty, and to treat the rule of damages with respect to each 
 covenant separately, but the cases cited to the one may be considered with profit 
 in the examination of the other. 
 
COVENANTS OF WAERANTY AND FOE QUIET ENJOYMENT. 373 
 
 nants of warranty and for quiet enjoyment,* except that in certain 
 of the New England States the covenantee is allowed the value of 
 the estate at the time of eviction, in case of a breach of the cove- 
 nant of warranty or for quiet en joyment.^ In those States, however. 
 
 'Field Dam. §461; Eawle Govt. §164; 1 Bedgw. Dam. 338; 3 Sutherland 
 Dam. 280; Waite's Act. & Def. 401. Cox v. Strode, 3 Bibb (Ky.), 275; 5 Am. 
 Dec. 603; Booker v. Bell, 3 Bibb (Ky.), 176; 6 Am. Dec. 641; Cummings 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, 3 Bush (Ky.), 801. Stout v. Jackson, 2 Rand. (Va.) 133, where the 
 question was for the first time directly presented in Virginia. There was an able 
 opinion by Gkeen, J., announcing the rule stated in the te.xt, and disapproving 
 the dicta to the contrary in Mills v. Bell, 3 C:all (Va.), 333, and other early cases.. 
 COALTBR, J., dissented. The rule settled in this case remains unchanged in 
 Virginia. Thompson v. Guthrie, 9 Leigh (Va.), 101; 88 Am. Dec. 335; Threlkeld 
 V. Fitzhugh, 2 Leigh (Va.), 451; Jackson v. Turner, 5 Leigh (Va.), 126; Lowther 
 v. Com., 1 Hen. & Munf, (Va.) 303; Click v. Green, 77 Va. 827. Moreland v. 
 Metz, 24 W. Va. 137; 49 Am. Rep. 246; Butcher v. Peterson, 26 W. Va. 447; 53 
 Am. Rep. 89. Barnett v. Hughey, (Ark.) 15 S. W. Rep. 464. Brown v. Dicker- 
 son, 12 Pa. St. 372; McClure v. Gamble, 27 Pa. St. 388; Cox v. Henry, 32 Pa. 
 St. 18. Holmes v. Siunickson, 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.) 239; 57 Am. Dec. 330; Drew v. Towle, 30 N. H. 531; 64 Am. Dec. 309; 
 Nutting V. Herbert, 35 N. H. 130. Kinney v. Watts, 14 Wend. (N. T.) 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, 
 mnble; Elliott v. Thompson, 4 Humph. (Tenn.) 98; 40 Am. Dec. 630; McGuffey 
 V. Humes, 85 Tenn. 36; 1 S. W. Rep. 506. Dickens v. Shepherd, 3 Murph. 
 (N. C.) 326. Henning v. Withers, 3 Brev. (S. C.) 458; 6 Am. Deo. 589; Furman 
 V. Elmore, 2 Nott & McC. (S. C.) 189; Lourance v. Robertson, 10 S. C. 12. Davis v. 
 Smith, 5 Ga. 274; 47 Am. Reji. 279. A very exhaustive opinion was delivered in this 
 case, reviewing the doctrines of the ancient common law applicable to the rule stated 
 in the text. Simpson v. Belvin, 37 Tex. 685. Clark v. Parr, 14 Ohio, 118; 45 
 Am. Dec. 539; MoAlpin v. Woodruff, 11 Ohio St. 120. Stebbins v. Wolf, 33 
 Kans. 765; 7 Pac. Rep. 542; Doom v. Curran, 53 Kans. 360: 34 Pac. Rep. 
 118. Dalton v. Bowker, 8 Nev. 190; Hoilman v. Bosch, 18 Nev. 360. Brandt 
 V. Foster, 5 Iowa, 297; Swafford v. Whipple, 3 Gr. (lo.) 361; 54 Am. Deo. 498. 
 Stark V. Olney, 3 Oreg. 88. Sheets v. Andrews, 2 Bl. (Ind.) 274; Reese v. 
 McQuilkin, 7 Ind. 450; Phillips v. Reichert, 17 Ind. 120; 79 Am. Dec. 468; 
 Burton v. Reeds, 20 Ind. 87; Wood v. Bibbins, 58 Ind. 392; McClure v. McClure, 
 65 Ind; 487; Boatman v. Wood, 50 Ind. 403, right to interest on the purchase 
 money. Donlon v. Evans, 40 Minn. 501; 42 N. W. Rep. 472, semble. Martin v. 
 Long, 3 Mo. 391; Dunnica v. Sharp, 7 Mo. 71; Tong v. Matthews, 33 Mo. 437; 
 
 5 Post, § 165. 
 
374 MAEKETABLE TITLE TO EEAL ESTATE. 
 
 the rule of damages for a breach of the covenant of seisin is tlie 
 same as that which prevails in the other States. At common law 
 upon a loss of the estate by eviction under a paramount title, the 
 remedy of the tenant upon the warranty of the lord of the fee was 
 by writ of warrantia chartce in which he had restitution of other 
 lands to the amount of those which he had lost. Damages were not 
 recoverable, 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.' By the civil law the 
 vendor, whether with or witliout fault, is bound to indemnify the 
 purchaser to the full extent of his loss, which, of course, includes 
 improvements and the increased value.^ ifn 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 contained 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 
 
 Lambert v. Estes, 99 Mo 604; 13 S. W. Rep. 284, Blossom v. Knox, 3 Pinney 
 (Wis,), 263 (3 Chand. 295); Conrad v. Trustees, 64 Wis. 258; 35 N. W. Rep, 24. 
 Griffin v, Reynolds, 17 How, (U, S.) 609; Patrick v. Leach, 1 MoCrary (U. S.), 
 350, The following observations by Cake, J,, in Threlkeld v, Fitzhugh, 3 
 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 is 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 construction. 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, extend 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 subse- 
 quent accessions be the subject of a warranty made when they had no existence, 
 nor were even in the contemplation of the parties,'' 
 
 ' Gore V, Brazier, 3 Mass, 533; 3 Am, Dec, 182. 
 
 ' Hale V, New Orleans, 18 La, Ann, 331. 
 
COVENANTS OF WAEEANTY AND FOR QUIET ENJOYMENT. ,'175 
 
 amount of the debt secured.' 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. 
 
 It is to be observed that the rule generally prevailing throughout 
 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.^ They contract with 
 reference to the present value of the estate, and if the covenantee 
 has any ajjprehensions as to the title and the safety of his bargain, 
 he should require special covenants to protect himself from loss.' 
 
 ' Thus, in Haffey v. Birchetts, 11 Leigh (Va.), 89, a distinctioa 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 rnone)'. 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. Adequacy is alone inquired into. 
 The true measure of damages, thei-efore, in case of eviction by superior title, is 
 the value of the mortgaged or trust subject at tlie time of eviction, provided it 
 do not exceed the amount of the debt secured, for it is obvious tliat the creditor 
 can never be damaged to a greater amount thaa that." Thus, if the land at the 
 time of the execution of the deed of trust was of the value of 11,000, tho debt 
 secured was 83,000, and the land had increased in value to 83,000 at the time of 
 the eviction, the beneficiary would be entitled to the sum of 83,000 as damages. 
 There is no injustice in this result, the covenantor being liable for the whole 
 $3,000 at all events. 
 
 2 Phillips V. Smith, Car. Law Rep. (N. C.) 475; 6 Am. Dec. 543, where it was 
 said that nothing could be more unreasonable than to coniputethe damages 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 covenantor 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. Weatherall, 3 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 maj^ 
 put on it, let him insist on particular covenants expressly guaranteeing to him 
 such increase and improvements." Cark, J., in Threlkeld v. Pitzhugh, 3 Leigh 
 (Va.), 463. Bronson, J., in Kelly v. Dutch Church, 2 Hill (N. Y.), 116. In Nes- 
 bit V. Brown, 1 Dev. Eq. (N. C.) 30, it was held that a covenant to pay in case 
 
376 MARKETABLE TITLE TO EEAL ESTATE. 
 
 The apparent hardship of the rule is lessened by several considera- 
 tions. Thus, if the covenantee knew the title was bad, he took the 
 risk of losing his improvements/ and if he forebore an examination 
 and remained ignorant of the state of the title, it was his own fault 
 and calls for an application of the maxim that where one of two 
 innocent parties must suffer a loss, he whose negligence made the 
 loss possible must bear it. And again, in many if not all of the 
 States, there are statutes that give to the evicted covenantee the right 
 to an allowance for the value of his permanent improvements as 
 against the successful claimant of the premises.^ 
 
 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 tlie full extent of any 
 loss he may have sustained, including the value of his improvements 
 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.^ 
 
 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. 358; 25 N. W. Rep. 34. 
 
 «In Cox V. Strode, 2 Bibb (Ky.), 378; 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 improve- 
 ments made by the purchaser, he ought to be remunerated, but justice requires 
 that this remuneration should be made by the successful claimant, for nemo debet 
 Incvpletari ril iena jaetura is a maxim of universal justice, 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. 
 
 ■> 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 warranty in whichit 
 was said that if the jury found that the covenantor when he sold knew that he had 
 no title to the land, it was a fraud, and that the jury might give such damages 
 as they thought would make the covenantee whole. 
 
COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 377 
 
 Tlie \'alue 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.' 
 
 Nominal damages only for a breach of the covenant of warranty 
 can be recovered against one who conveyed the land without consid- 
 eration, as between the original parties.^ 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, reconveyed 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.' 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 cove- 
 nant of warranty must be measured by the consideration stated.* 
 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.^ The grantor is not relieved 
 from liability on his covenant of warranty by the fact that he 
 received only a part of the consideration, and that the other part 
 
 ' But see Cummins v. Kenndy, 3 Litt. (Ky.) 135; 14 Am. Dec. 45, the court 
 saying: " The general rule settled by a current of authorities is, that as the con- 
 veyance completes the sale, the value of the land conveyed, at the date of the 
 conveyance, with interest and costs, forms the criterion of damages; 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.'' 
 
 * West v. West, 76 N. 0. 45. One to whom a deed, absolute on its face, is 
 executed as collateral security for a debt due to a third person, is put upon notice 
 of the character of the transaction by the recital of the consideration, and cannot 
 recover as a 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. 
 
 3 West v. West, 76 N. C. 45. 
 
 "Hanson v. Buckner, 4 Dana (Ky.), 354; 39 Am. Dec. 401. 
 
 ' McGuffey v. Humes, 85 Tenn. 36; 1 S. W. Rep. 506. 
 48 
 
378 MARKETABLE TITLE TO KEAL ESTATE. 
 
 went to a third person, who acted as his agent for the sale of the 
 premises.^ If a valuable consideration be in fact paid, the grantor 
 will be liable upon his warranty without regard to the parties receiv- 
 ing the consideration, or the manner of its appropriation.' And 
 the fact that the grantor bought the premises and, for the same con- 
 sideration that he paid, conveyed them to the grantee at the request 
 of third persons, for a particular purpose, will not relieve him from 
 liability on his covenant. If a person chooses to execute a covenant of 
 warranty under such circumstances, he must abide the consequences.' 
 
 The fact that the laud 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.' The covenantor 
 may show in mitigation of damages that a tract of land to whicli he 
 had no title was by mistake included in the conveyance by him.' 
 Also, that the covenantee has received from the adverse claimant, 
 by way of refund, taxes, ^Jenalties, etc., charges upon the land paid 
 by the covenantor, which he would have been entitled to recover 
 from such claimant.^ 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 ;' in others, accord- 
 ing to the rule in force in the State in which the action is brought f 
 and in others, according to the law of the place where the contract 
 was made.' 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 tlie grantor and a third person executed an 
 instrument obliging themselves to satisfy any incumbrances upon 
 
 1 Rash V. Jenne, (Oreg.) 37 Pac. Rep. 538. 
 
 « Bloom V. Wolfe, 50 Iowa, 286. 
 
 ^Whatley v. Patten, (Te.K. Civ. App.) 31 S. W. Rep. 60 
 
 4 Phillips V. Reichert, 17 Ind. 120; 79 Am. Dec. 463. Dimmick v. Lockwood, 
 10 Wend. (N. Y.) 142. 
 
 ^ Leland v. Stone, 10 Mass. 459. 
 
 'Danforthv, Smith, 41 Kans. 146; 21 Pac. Rep. 168; Stebbins v. Wolf, 33 
 Kans. 765; 7 Pac Rep. 543. 
 
 ' Tillotson V. Prichard, 60 Vt. 94; 14 Atl. Rep. 802. Succession of Cassidy, 40 
 La. Ann. 827; 5 So. Rep. 292. 
 
 « Nichols V. Walter, 8 Mass. 248; Smith v. Strong, 14 Pick. (Mass.) 128. 
 
 'Aiken v. McDonald, (So. Car.) 20 S. E. Rep, 796. 
 
COVENANTS OF WAEKANTV AND FOE QUIET ENJOYMENT. 379 
 
 the land, and the grantee was evicted under an incumbrance whicli 
 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 agree- 
 ment to do certain acts for the plaintiff's benefit within a specified 
 time. For the breach of such an executory contract, we know no 
 reason why the plaintiff should not be allowed to recover such dam- 
 ages as are the necessary, natural and pro:!Jiniate result of the breach 
 complained of.'" 
 
 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.^ 
 
 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 the warranty as a defense.' So, conversely, in an action 
 by the grantee on the warranty the covenantor may set off the 
 unpaid purchase money against the plaintiff's demand.'* 
 
 § 165. Rule in New England States. In the States of Massa- 
 chusetts,' Maine,* Yerm.ont '' and Connecticut,^ the covenantee is 
 
 ' Manahau v. Smith, 19 Ohio St. 384. 
 
 " Graham v. Dyer, (Ky.) 39 S. W. Rep. 346 (not officially reported). 
 
 3 Post, ch. 16. 
 
 *Beecher v. Baldwin, 55 Conn. 419; 12 Atl. 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. 
 
 * Gore V. Brazier, 3 Mass. 543; 3 Am. Dec. 183. 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. 
 
 ' Swett V. Patrick, 13 Me. 1; Hardy v. Nelson, 37 Me. 535; Elder v. True, 33 
 Me. 104. 
 
 ' Keeler v. Wood, 30 Vt. 243; 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, 13 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 evic- 
 tion 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 discussing 
 
380 MAEKETABLE TITLE TO EEAL ESTATE. 
 
 permitted to measure his damages upon a breach of the covenant of 
 warranty, by the vahie of the land at the time of his eviction. The 
 distinction which they make between the covenant of warranty and 
 the covenant of seisin is that the latter covenant is broken as soon 
 as made if the covenantor have no title, while the covenant of war- 
 ranty is not broken until eviction under title paramount ; and that 
 the parties intend that the damages shall be measured by the value 
 of the land at the time" when the covenant is broken.^ If the 
 eviction is constructive, as wliere the covenantee 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.^ 
 
 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. In such 
 a case the measiire of his damages is the amount required to redeem 
 the land.'' Were this not so the covenantee might recover the full 
 
 the reasons upon which it is founded. Mitchell v. Hazen, 4 Conn. 516; 10 Am. 
 Dec. 169; Stirling v. Peet, 14 Conn. 345; Butler v. Barnes, 61 Conn. 399; 24 
 Atl. Rep. 328. 
 
 ' The rule measuring the damages by the value of the land at the time of 
 eviction vras recognized in Virginia at an early date, though not expressly 
 adopted. Mills v. Bell, 3 Call (Va.), 330, obiter, a case of executory contract. 
 TucKEK, J., in Nelson v. Matthews, 3 Hen. & Munf. (Va.) 164; 3 Am. Dec. 620, 
 These dicta have all been disapproved by later cases. See ante, p. 373, n. Dam- 
 ages for the value at the time of eviction were also allowed or the rule approved 
 in Guerard v. Rivers, 1 Bay (S. C), 263, and Liber v. Parsons, 1 Bay (S. C), 19, 
 but these cases were overruled by Furman v. Elmore, 2 Nott & McC. (S. C.) 189. 
 The consideration money with interest has since been made by statute the rule 
 of damages. Acts 1824, p. 24; Earle v. Middleton, 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 damages for the value of the land at the time of trial 
 of the action for breach of covenant. In Jones v. Shay, 72 Iowa, 237; 33 N. W. 
 Rep. 650, it was held error to award damages in excess of the purchase money, 
 unless the plaintiff averred and proved an increase in the value of the premises. 
 
 ' Park V. Bates, 12 Vt. 381; 36 Am. Dec. 347. 
 
 = Tuft V. Adams, 8 Pick. (Mass.) 549; White v. Whitney, 3 Met. (Mass.) 89; 
 Thayer v. Clemence, 22 Pick, (Mass.) 490. Compare Lloyd v. Quimby, 5 Ohio St. 
 362. 
 
COVENANTS OF WAEEANTY AND FOE QUIET ENJOYMENT. 381 
 
 value of the estate as damages, and then repossess himself of the 
 estate by redeeming it with a much smaller sum of money. 
 
 The New England rule as to the measure of damages has been pro- 
 nounced unsound and has been vigorously assailed both by text writers 
 and by the courts of other States.' The reasons which they urge 
 against the rule seem conclusive. The decisions supporting 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.^ It is not to be 
 denied, however, that the rule limiting the damages to the considera- 
 tion money will not 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 hav- 
 ing regard to the difficulties of the subject, and as the least calcu- 
 lated to produce inequitable results.^ 
 
 ' See the cases cited supra, p. 37a, n. Rawle Govt. § 165. The learned writer 
 says: " A vendor when making them (the covenants) never dreams of such an 
 enlarged liability hy 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 measured 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 he is allowed to have judgment 
 entered upon either. If the property is less valuable than when he purchased 
 it, he elects to enter judgment upon the covenant for seisin and receives the con- 
 sideration money, which is far more than the property is then worth. If, how- 
 ever, it has increased in value, judgment is entered on the covenant for quiet 
 enjoyment." In Ware v. Weatherall, 2 McC. (S. C.) 34&, it was said by Col- 
 cock, J. : "It sounds well to say that if a man be deprived of a thousand dollars 
 worth of improvements by a defect in his title, he who sold should be compelled 
 to make it up. But I ask if it is not increasing the calamities of life to make 
 men answerable for that which the most consummate wisdom and incorruptible 
 integrity cannot guard against." 
 
 ' See the remarks of Parsons, 0. J., in Gore v. Brazier, 3 Mass. 545, 546; 3 
 Am. Dec. 183. 
 
 3 Staats V. Ten Eyck, 3 Caines (N. Y.), Ill; 3 Am. Dec. 254, where it was said 
 by Kent, 0, 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. 
 
382 MARKETABLE TITLE TO REAL ESTATE. 
 
 § 1G6. 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 plaintifE was less than that 
 paid to the covenantor ; that is, the original purchase money, the 
 plaintiff can recover as damages only the purchase price which he 
 paid.^ 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 Hable cannot 
 be increased by a transfer of the land.' 
 
 § 167. True consideration may be shown. The consideration 
 stated in the conveyance is prima facie evidence of the purchase 
 
 ' Mette V, Dow, 9 Lea (Tenn.), 99. In this case the court, by Coopbk, J., 
 lucidly observed: " The covenant (warranty) is a peculiar one, and not like an 
 ordinary covenant for so much money. It is rather in the nature of a bond with 
 a fixed sum as a penalty, the recovery on which will be satisfied by the payment 
 of the actual damages. Each vendor subject to this rule may be treated as the 
 principal obligor to bis 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 plaintifE to his immediate vendor, with interest, and not 
 the consideration 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. Whitz- 
 man v. Hirsh, 3 Pick. (Tenn.) 513; 11 S. W. Rep 421. Moore v. Frankenfleld, 
 35 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. 
 
 = Dickson v. Desire, 23 Mo. 166. Crisfield v. Storr, 86 Md. 150; 11 Am. Rep. 
 480. Rogers v. Golson, (Tex. Civ, App.) 31 S. W. Rep. 200. Taylor v. Wallace, 
 (Colo.) 37 Pac. Rep. 963. Where the purchaser resold the premises 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 pur- 
 chaser, and not that which the latter was to pay to the grantor. Cook v. Curtis, 
 68 Mich. 611; 36 N, W. Rep. 693. 
 
 The rule stated in the text seems to be supported by the weight of authority. 
 There are cases, however, which adopt the contrary view. Brooks v. Black, 
 
COVENANTS OF WARKANTY AND FOK QUIET ENJOYMENT. 383 
 
 price of the land. But parol evidence is admissible to show the 
 true consideration, whether it l)e greater or less than that recited in 
 the deed.' It has been said that the only operation of the consider- 
 ation clause is to prevent a resulting trust in the grantor and to 
 estop him to deny the deed for the uses therein mentioned.' Evi- 
 dence 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 
 
 (Miss.) 9 So. Rep. 333. 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. 
 
 ' Bingham v. Weiderwax, 1 Comst. (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; Nut- 
 ting 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. Plughey, (Ark.) 15 S. W. 
 Rep. 464. Garrett v. Stuart, 1 McCord (8. 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. Jlartin v. Gordon, 34 Ga. 533. 
 In this case the real consideration was much less than that stated in the deed. 
 In Stark v. Olney, 3 Greg. 88, the consideration expressed in the deed was $3,000, 
 but the plaintiff recovered only $507. In Staples v. Dean, 114 Mass. 125, it 
 appeared that Sylvester, not being the owner of a lot, sold and agreed to convey 
 it to Staples for about $950. Sylvester then purchased the lot from the real 
 owner. Dean, for $450, and caused him to convey it to Staples with covenant of 
 seisin, the deed 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, and 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 generally that the consideration of a deed cannot 
 be inquired into, but they are no longer regarded as authority. Among others 
 may be named Steele v. Adams, 1 Gr. (Me.) 1; Clarke v. 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 conveyance. Belts v. Union Bank, 1 Harr. & Gill (Md.), 175; 18 Am. Dec. 
 383. Wilt V. Franklin, 1 Binney (Pa.), 502; 2 Am. Dec. 474. 
 «Belden v. Seymour, 8 Conn. 304; 31 Am. Dec. 661. 
 
384 MAKKETABLE TITLE TO EEAL ESTATE. 
 
 covenant, that is, a subsequent purchaser from the covenantee.' If 
 no consideration be expressed in the deed, extrinsic evidence may, 
 of course, be resorted to for the purpose of showing the purchase 
 price.- If tlie consideration cannot be ascertained, the value of the 
 land at the time of the conveyance, with interest, will be th« 
 measure of damages.' 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.'' 
 
 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, when the consideration was paid 
 in railroad bonds, worth less than par, the measure of damages was 
 held to be the actual market value of the bonds at the time of the 
 payment.' 
 
 § 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 uf 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.* Upon the same principle he is permitted to 
 buy in the outstanding title and to recover as damages the amount 
 
 ' Greenvault v. Davis, 4 Hill (N. Y.), 647. 
 
 ^ Smith V. Strong, 14 Pick. (Jlass.) 128. 
 
 = Smith V. Strong, 14 Pick. (Mass.) 128. 
 
 "Estabrook v. Smith, 6 Gray (Mass.), 578; 46 Am. Dee. 443. Nutting v. Her- 
 hcrt, 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 defendant could 
 not show by parol that at the time he executed the deed he assigned to the 
 grantee a judgment against a thii-d 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 v. Weld, 8 Mass. 146, it was held that parol evidence is inad- 
 missible to show that the covenantee was aware of the defect of the covenantor's 
 title and that he had agreed that the covenantor should not be charged in the 
 event of an eviction. 
 
 'Montgomery v. Northern Pac. It. Co., 67 Fed. Rep. 445. 
 
 "Ante, p. 348. 
 
COVENANTS OF WAEEANTY AND FOR QUIET ENJOYMENT. 385 
 
 necessarily and in good faith expended for that purpose.' " There 
 seems to be no difference in principle between yielding np the pos- 
 session to liim who owns the paramount title, and fairly purchasing 
 that title, so far as respects the right to recover damages on the 
 warranty."^ But he can in no case recover damages in excess of the 
 amount paid by him to the adverse claimant,^ or in excess of the 
 purchase price of the laud.* Prima 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.^ 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.^ 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 incurred in acquiring the right of the true 
 owner.^ But while the covenantee may buy in the paramount title 
 
 'Mayue Dam. (Wood's ed.) 386; Field Dam. 378, et seq.; Rawle Govt, g 192; 
 Sedg. Dam. p. . 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, 36 Vt. 709. Sanders v. Wagner, J3 
 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. In Lawless v. Collier, 19 
 Mo. 480, it was held that if the grantee buys in the adverse title, the price paid 
 is the measure of his damages for breach of the covenant of seisin, but if he 
 assigned the covenants in his grantor's deed as part of the consideration for the 
 adverse paramount title, the assignee will be entitled to the full amount of the 
 purchase money. And in Nolan v. Peltman, 12 Bush (Ky.), 119, it was hold 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. 
 
 2 Donnell v. Thompson, 1 Fairf. (Me.) 176; 35 Am. Dec. 316. 
 
 2 Farmers' Bank v. Glenn, 68 N. C. 39 and cases cited in note 1, above. Cox 
 V. Henry, 32 Pa. St. 18. James v. Lamb, (Tex.) 21 S. W. Rep. 172. Bush v. 
 Adams, 23 Pla. 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; 34 Am. Rep. 
 745. Clapp V. Herdman, 25 111. App. 509. 
 
 '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. 
 49 
 
386 MAEKETABLE TITLE TO EEAL ESTATE. 
 
 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 inevi- 
 tably yielded .1 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.^ 
 
 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 was 
 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 law- 
 ful subject of private contract, and an attempted conveyance thereof 
 by one private person to another passes no interest whatever, and 
 does not ci-eate the relation of vendor and vendee, and, therefore, 
 cannot be held to furnish a consideration for the purchase price of the 
 premises.^ 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.* 
 
 § 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 New York and else- 
 where not to apply in case of a breach of a covenant for quiet 
 enjoyment contained in a lease, the lessee in case of eviction by 
 
 ' 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. Hal- 
 sey, 2 Gr. (N. J. L.) 48. Sanders v. Wagner, 32 N. J. Eq. 506. 
 
 ''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. 383; Hous- 
 ton V. Dickinson, 16 Tex. 81. See, also, Kans. Pao. R. Co. v. Dunmeyer, 19 
 Kans. 543. Barr v. Greeley, 52 Fed. Rep. 926, obiter ; Montgomery v. Northern 
 Pac. R. Co., 67 Fed. Rep. 445. 
 
 'Dillahunty v. Little Rock, etc., R. Co., (Ark.) 27 S. W. Rep. 1002. 
 
COVENANTS OF WARRANTY AND FOB QUIET ENJOYMENT. 387 
 
 title paramount being held entitled to damages for the value of his 
 unexpired term over and above the rent reserved.^ A similar rule 
 has been applied in England^ in such cases. A different rule for- 
 merly prevailed in New York ; the earlier cases hold that the rent 
 
 ' Clarkson v. Skidmore, 46 N. Y. S97. Clark v. Fisher, 54 Kans. 403; 38 Pac. 
 Eep. 493. Fritz v. Pusey, 31 Minn. 368; 18 N. W. Rep. 94. Wetzel v. Rich- 
 creek, (Ohio) 40 N. E. Rep. 1004. Sheets v. .Joyner, (Inil.) 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, 43 JST, 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 comments on this decision in Lan- 
 uigan 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 Earle, C. J.: 
 " Ordinarily in an action against the vendor of real estate for breach of the cove- 
 nant 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 
 damages. In an action by the lessee against the lessor for breach of the cove- 
 nant 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 pos- 
 session, ordinarily the lessee can recover only nominal damages and some inci- 
 dental (3xpenses, 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 couutrj^ certain cases were declared 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 per- 
 verseness or to secure a better bargain; or if he has covenanted to convey when 
 he knew he had no authority to contract to convey; or where it is in his power 
 to remedy a defect in the title and he 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 
 mortgages upon the real estate at the time he made the lease. He is, therefore, 
 ■within the rule of law above alluded to, liable to the damages awarded against 
 him, because he gave the lease knowing of the defect in his title * «■ * 'When 
 
 5 Williams v. Burrell, 1 Com. B. 402; Lock v. Furze, 19 Com. B. (N. S.) 96; 
 S. C. on appeal, L. R., 1 0. PI. 441; Rolph v. Crouch, L. R., 3 Exch. 44. 
 
388 SI.VEKETABLE TITLE TO REAL ESTATE. 
 
 reserved for the residue of the unexpired term is the measure 
 of the lessee's damages.' The late cases would seem to establish 
 the better doctrine. They proceed upon the ground that the rule 
 caveat emjjtor does not ajjply 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.^ It seems that, if he has paid 
 
 he gave this lease, if he acted in good faith, he must have intended in some way 
 to have taken care of these mortgages; and because he did not do so, having the 
 ability, so far as appears, to do so, he should be held liable to the damages 
 recovered. He not only failed to do his duty to the plaintiff in any of the 
 respects here indicated, but went actively to work to remove him from the prem- 
 ises, and succeeded in doing so." In JIcAlister v. Landers, 70 Cal. 79; 11 Pao. 
 Rep. 105, where a lessee was evicted under judgment in favor of one having 
 older title, it was held that his damages for breach of the covenant for quiet 
 enjoyment could not be less than the judgment for damages and costs against 
 himself. 
 
 ' Kelly v. Dutch Church, 2 Hill (N. Y.), 105; Kinney v. Watts, 14 Wend. (N. 
 Y.) 38. In Moak v. .lohnson, 1 Hill (N. Y.), 99, the rule established by these 
 oases 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. McAlnine 
 V. Woodruff, 11 Ohio St. 120. Lanigan v. Kille, supra, was a case of great hard- 
 ship. A lessee had erected extensive and costly improvements for mining pur- 
 poses 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' enioyment 
 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. 389 
 
 no rent, he can only recover nominal damages in case of eviction, 
 with costs incurred in defending the title.' 
 
 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 ahsolved from the payment of the rent in 
 toto? If he be deprived of a part of the premises, or pay ofE an 
 incumbrance of less amount than the ground rent, he will be enti- 
 tled to an abatement of the rent for such time as shall be sufficient 
 for his indemnity.^ 
 
 § 170. Measure of damages on eviction from part of the 
 land. If the covenantee be evicted from part only of the war- 
 ranted premises, the measure of his damages will be, not the aver- 
 age price paid per acre for the wliole tract, but such a proportion of 
 tlie 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.* The rule is the same whether the action be for breach of 
 
 ' Moak V. Johnson, 1 Hill (N. Y.), 99. 
 
 ''Franciscus v. Reigart, 4 Watts iPa.), 116. 
 
 ' Garrison v. Moore, 1 Phila. (Pa.) 283. 
 
 ^Sedg. Dam. (8th ed.) 113; Rawle Govt. (5th ed.) § 187. Morris v. Phelps, 5 
 Johns. (N. Y.) 49, 56; 4 Am. Dec. 333; Guthrie v. Pugsley, 13 Johns. (N. Y.) 136; 
 Giles V. Dugro, 1 Duer (N. Y.), 331; Adams v. Conover, 33 Hun (N. Y.), 424; 
 affd., 87 N. Y. 432; 41 Am. Rep. 381. Compare Mohr v. Parmelee, 43 N. Y. 
 Super. Ct. 330, where it is said that "the damages are limited to a smn 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'^ 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. Messer v. Oestrich, 53 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. 
 636; 33 ]Sr. W. Rep. 690, correcting an inadvertent misstatement of the rule in 
 Messer v. Oestrich, supra. Ela v. Card, 8 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 mis- 
 leading, and is not sustained by the opinion. Winnipiseogee Paper Co. v. Eaton, 
 65 N. H. 13; ISAtl.Rep. 171. Wheelerv. Hatch, 12Me. 389; Blanchard v. Blanch- 
 ard, 48 Me. 174. Cornell v. Jackson, 8 Cush. (Mass.) 506: Lucas v, Wilcox, 185 
 Mass. 77. Hubbard v. ISTorton, 10 Conn. 432. Humphreys v. McClenachan. 1 Munf. 
 
390 MAEKETABLE TITLE TO EEAL 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 
 will be in such proportion to the entire consideration as the undi- 
 
 (A'a.) 493; Crenshaw v. Smith, 5 Munf. (Vn.) 41.5. Butcher v. Peterson, 26 W. Va. 
 447; 53 Am. Eep. 89. But, in Kelly v. Price, 22 W, Va. 247, it was said that the com- 
 pensation should he 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 ilcCord (S. C), 466. Dicli- 
 ens V. Shepherd, 3 Murph. (N. C.) 526. Grant v. Hill, (Tex. Civ. App.) 30 S. W. 
 Rep. 9.52. Griffin v. Reynolds, 17 How. (U. S.) 6u9. Morris v. Phelps, supra, is 
 the leading case on this point. There it was held that where there was a 
 want of title only as to part of the land conveyed, the damages ought to 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. " Sup- 
 pose," said Chief .Justice Kent, "a valuable stream of water with expensive 
 improvements upon it, with ten acres of adjoining barren land, was sold for 
 §10,000, and it should afterwards appear that the title to the stream with the 
 improvements on it failed, but remained good as to the residue of the land, would 
 it not be unjust that the grantee should be limited in damages under his cove- 
 nants to an apportionment according to tlie number of acres lost, when the sole 
 inducement was defeated, and the whole value of the purchase had failed? So, 
 on the other hand, if only the title to the nine barren aces failed, the vendor 
 would feel the weiglit of extreme injustice, if he was obliged to refund nine- 
 tenths of the consideration." In Major v. Dunnavant, 2.5 111. 234, the considera 
 tior, 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 8100, and the price paid for the whole was .S6,000, then 
 there was the sum of $900 paid for the whole purchase more than it was worth, 
 and this loss must be apportioned to the two tracts according to their actual 
 values respectively. Thus, dividing the .?900 into 51 parts, the tract worth So,000 
 would bear 50 parts of it, and the tract worth SI 00 one part, and by this amount 
 would the actual value of the 80-acre tract be increased for the purpose of ascer- 
 taining how much was paid in the purchase for this tract, and by adding to this 
 sum tlie interest upon it the amount of the damages for the breach of the cove- 
 nant would be ascertained." In Sears v. Stinson, 8 Wash. St. 615, the following 
 rule was laid down: "The jury, assuming the value of the whole tract to be the 
 contract price, must find how much less than the contract price the land was 
 worth at the time of the sale by reason of the deficiency, and that will be the 
 plaintiff'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 pur- 
 chase monc3% 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 
 
COVENANTS OF WAEEANTY AND FOE QUIET ENJOYMENT. 391 
 
 vided interest bears to the entire estate in the land.* If there be 
 no evidence of a difference in value between the part of the estate 
 which has been lost and the part retained, the measure of damages 
 will, of course, be such a proportion of the entire purchase as the 
 part lost bears to the entire tract.' 
 
 It will hereafter be seen that a purchaser may rescind or refuse 
 to perform an executory contract for the sale of lands if the title to 
 a portion of the estate prove defective, unless the portion affected 
 or the charge upon the estate be triiling and inconsiderable.^ He 
 has no such option where the contract has been executed by a con- 
 veyance with full covenants for title. If he be evicted from part 
 of the estate by paramount title, he cannot treat the contract as at 
 an end and recover the entire purchase money as damages, even 
 though the j^art to which the title failed had been tlie principal 
 inducement to his purchase. If that part, however, be of greater 
 value than the other, the part of the purchase money that he will 
 be entitled to recover as damages, will, as we have just seen, be 
 proportioned to the actual value of the portion of the premises lost. 
 The same rule applies where it appears that tlie covenantor had not 
 the quantity of estate or the interest that he undertook to carry.* 
 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, recov- 
 ering as damages the difference between the value of the life estate 
 and the fee.^ "Where a deed passes an estate of value, though not 
 
 a rule different from that stated in the text. The same statement 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. 
 
 'Downer v. Smith, 38 Vt. 464; Scantlin v. Allison, 12 Kans. 92. 
 
 ^Gass V. Sanger, (Tex. Civ. App.) 30 S. W. Eep. 502. 
 
 3 Post, ch. 32. 1 Sugd. Vend. (8th Am. ed.) 477 (315). 
 
 * Morris v. Phelps, 5 Johns. (N. Y.) 56 ; 4 Am. Dec. 823. See, also, cases 
 cited ante, p. 389, n. 4. An agreement that if the title to part of the land fails, the 
 grantee may have credit on his purchase-money notes on reconveying such part, 
 does not oblige him to pursue that course. He may pay the notes and sue on 
 the warranty. Wood v. Thornton, (Tex.) 19 S. W. Rep. 1034. 
 
 'Recohs v. Younglove, 8 Baxt. (Tenn.) 385. Turnby, J., dissented, holding 
 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 rescission of the con- 
 
892 lilAEKETABLE TITLE TO REAL ESTATE. 
 
 the precise estate covenanted, it is to be considered in measuring tlie 
 damages for breach of the covenant.^ 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.' If the title be outstanding 
 in tenants in common or joint tenants, and but one of these recovers 
 an undivided half against the covenantee, the warranty is broken 
 only as to one-half of the premises, and the covenantee can recover 
 damages only on that basis. The recovery of an undivided half by 
 a tenant in common with a third person, is not a constructive 
 recovery of the whole estate in common.^ 
 
 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 tlie 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.^ Evidence of the advantages or dis- 
 advantages of the part lost, is admissible on behalf of either party. ^ 
 
 Where the breach of the covenant of warranty or the covenant 
 for quiet enjoyment, consists in the establishment of an easement in 
 the gi-anted premises, e. g., 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 .^ 
 
 tract instead of seeking damages at law. It is doubtful, hoT\-ever, 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 proposition stated in the text, see 
 further Gray v. Briscoe, Noy. 143, and cases cited ante, p. 373, n. Tanner v. Liv- 
 ingston, 12 Wend. (N. Y.) 83. 
 
 ' Kimball v. Bryant, 35 Minn. 496 ; Ogdcn v. Ball, 38 Minn. 237 ; 36 N. W. 
 Kep. 344; Huntsman v. Hendricks, 44 Minn. 433; 46 N. W. Rep. 910. 
 
 ».\ikeu V. McDonald, (So. Car.) 30 S. E. Rep. 796. 
 
 'McGrew v. Harmon, (Pa. St.) 30 Atl. Rep. 26.5. 
 
 ■•Mischke v. Baughn, 53 Iowa, 528; 3 N. W. Rep. 543. 
 
 ' Beaupland v. McKeen, 38 Pa. St. 124; 70 Am. Dec. 115. 
 
 ^Hymes v. Esty, 133 N. Y. 342; 31 N. E. Rep. 105. 
 
COVENANTS OF WAEEANTY AND FOR QUIET ENJOYMENT. 393 
 
 § 171. Improvements. The rule that the measure of damages 
 upon a breach of the covenants of warranty and of seisin, is the con- 
 sideration money and interest, exchides the purchaser from recover- 
 ing the vahie of improvements placed by him on the premises.* 
 "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.^ Especially will such an allowance be 
 made when the grantee is evicted by the grantor himself, upon the 
 ground that he was incompetent to execute the conveyance.' 
 
 § 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.^ Thus, if the true owner's right to recovery of the protits 
 
 ' Bender v. Fromberger, 4 Dall. (U. S.) 443, leading case. Coffman v. Huck, 
 19 Mo. 435. But see Morton v. Eidgway, 3 J. J. Marsh. (Ky.) 354. Lejeune v. 
 Barrow, 11 La. Ann. 501. 
 
 2 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 upon the estate, is affirmed by statute in many of the States. 
 
 'Hawkins v. Brown, 80 Ky. 186. 
 
 ■> 4 Kent Com. 475. The learned author says: " The interest is to countervail 
 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 x^rofits." 2 Suther- 
 land Dam. 300. Staats v. Ten Eyck, 3 Gaines (N. Y.), Ill; 2 Am. Dec, 254; 
 Pitcher v. Livingston, 4 Johns. (N. Y ) 1; 4 Am. Djc. 239; Caulkius v. Harris, 9 
 Johne. (N. Y.) 324; Bennet v. Jenkins, 13 Johns. (N. Y.) 50. Collier v. Cowger, 
 52 Ark. 332; 12 8. W. Rep. 703. Cox v. Henry, 33 Pa. St. 18. Sumner v. Wil- 
 liams, 8 Mass. 322; 5 Am. Dec. 83. Willson v. Willson, 35 N. H. 239; 57 Am. 
 Dec. 830; Groesbeck v. Harris, 82 Tex. 411; 19 S. W. Rep. 850; Brown v. Hearon, 
 66 Tex. 63; 17 S. W. Rep. 395. Thompson v. Guthrie, 9 Leigh (Va.), 101; 83 
 Am. Dec. 335. In the earlier cases of Threlkeld v. Fitzhugh, 8 Leigh (Va.), 451 and 
 Jackson v. Turner, 5 Leigh (Va.), 119, it seems to have been held that the cove- 
 nantee 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, 283. McNear v. McComber, 18 Iowa, 12. Stebbins v. AVolf, 33 Kans. 771; 7 
 Pac. Rep. 542. Rich v. Johnson, 1 Chand. (Wis.) 30; S. C, 2 Pinney (Wis.) 88; 
 Mc-ieer v. Oestrich, 52 Wis. 694; 10 N. W. Rep. 6. King v. Kerr, 5 Ohio, 160; 22 
 50 
 
394 MARKETABLE TITLE TO EEAL ESTATE. 
 
 is limited by statute to a certain number of years next preceding his 
 action to recover the premises, tlie evicted covenantee wUl not be 
 entitled to interest beyond that period.' 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.^ The same rule applies where the eviction results 
 from the enforcement of a mortgage or other incumbrance on the 
 land, the covenantee not being liable to the incumbrancer for rents 
 and profits.^ In some cases, however, it has been held that the cove- 
 nantee will not be allowed interest on the damages unless he shows 
 that he has accounted to the real owner for the rents and profits.* 
 In other cases his right to interest has been declared complete with- 
 out regard to the question of mesne profits, on the ground that the 
 covenantor has no interest in the profits, and cannot recoup them 
 from tlie purchase money and interest, nor compel the covenantee 
 to account for them.^ If the covenantee, being liable for the mesne 
 
 Am. Dec. 777. McGuffey v. Hawes, 9 Lea (Tenn.), 93. Flint v. Steadman, 36 Vt. 
 210. A covenantee coiinterclaiming for damages arising from a judgment of 
 eviction in ejectment cannot liave interest on the damages for the time he remained 
 in possession 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 proceeds of 
 the timber. Graham v. Dyer, (Ky.), 39 S. W. Rep. 346. 
 
 ' Harding v. Larkin, 41 111. 413. Morris v. Rowan, 17 N. J. L. 804. 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.) 824. Cox v. Henry, 
 33 Pa. St. 19. Mette v. Dow, 9 Lea (Tenn.), 96; Crittenden v. Posey, 1 Head 
 (Tenn.), 312. 
 
 * Guthrey v. Pugsley, 13 Johns. (N. Y.) 126. 
 
 « Patterson v. Stewart, 6 Watts & S. (Pa.) 537; 40 Am. Dec. 586; Williams v. 
 Beemau, 3 Dev. (N. C.) 486. 
 
 * Field Dam. §466; 1 Sedg. Dam. (7th ed.) 388, 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. Roundtree, 77 Mo. 500. But see Poster v. Thompson, 
 41 N. H. 78, where it was held to be immaterial to the allowance of interest 
 whether the covenantee had or had not accounted to the adverse claimant for rents 
 and profits, it being presumed that mesne profits will be recovered by the real 
 owner. In Whiting v. Dewey, 15 Pick. (Mass.) 428, it was intimated that if from 
 lapse of time the coveniintee became no longer liable for the mesne profits they 
 should be deducted from the purchase money and interest. 
 
 5 Wilson V. Peelle, 78 Ind. 384; Wright v. Kipple, 93 id. 314; Rhea v. Swain, 
 133 Ind. 272; 23 N. E. Rep. 776, where held, also, that failure of the true owner 
 
COVENANTS OF WAEEANTY AND FOE QUIET ENJOYMENT. 395 
 
 profits, buy in the paramount title and recover as damages the 
 amount expended for that purpose, lie will be allowed interest on 
 the recovery, it being presumed that the mesne profits entered into 
 the consideration paid for the paramount title.^ It has also been 
 held that he will be entitled to interest on the amount paid to get in 
 the outstanding title, whether he has or has not been in the percep- 
 tion of the rents and profits, and whether the latter are more or less 
 than the interest on the purchase price of the land.' But where the 
 covenantee was kept out of possession 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.^ The rule that the covenantee is not 
 entitled to interest unless he is liable for the rents and profits, of 
 necessity applies only to cases in which he was in possession of the 
 estate. If he was never able to get possession, he will, of course, be 
 entitled to interest from the time the purchase money was paid. 
 
 to get Judgment for the rents and profits gave the covenantor no claim to them. 
 But see Burton v. Reeds, 20 Ind. 87. In Mitchell v. Hazen, 4 Conn. 495; 10 Am. 
 Dec. 169, it was said that the grantee was entitled to the consideration with inter- 
 est, 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 
 inHulse v. White, lCox(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. lliddleton, Cheves(S. C), 139, 
 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 
 easels 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 ofi: against interest because he is not concerned with them. 
 In this connection O'Nbalb, J., said: "There is no case of eviction, actual or 
 constructive, by pa/ramount title, where the party's right to interest would be 
 defeated by the reception of the rents and profits. The defect reaches back to 
 the 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 
 rapresent them in lep:al contemplation." 
 
 ' Harding v. Larkin, 41 111. 413. 
 
 ' Spring V. Chase, 22 Me. 505; 39 Am. Dec. 505. 
 
 8 Andrus v. St. Louis Smelting Co., 130 U. S. 643. No authorities cited. 
 
396 MARKETABLE TITLE TO EEAL ESTATE. 
 
 Interest runs from the time of purchase, and not merely from the 
 date of eviction.^ 
 § 173. Costs and attorney's fees as elements of damages. 
 
 In England and in most of the American States, in which the ques- 
 tion has been considered, the covenantee is permitted to include in 
 his recovery for a breach of the covenant of warranty or of seisen, 
 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.' 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.' 
 
 ' Simpson v. Belvin, 37 Tex. 675. Bellows v. Litchfield, 83 Iowa, 36; 48 N. 
 W. Rep. 1063. But if he is not liable for mesne profits he can recover interest 
 only from the date of eviction. McQ-ufEy v. Hawes, 85 Tenn. 36; 1 8. W. Rep. 
 506: Mette v. Dow, 9 Lea (Tenn.), 93. 
 
 ' The cases cited below include, also, those in which the covenantee was allowed 
 the costs of defending the title, hut in which no objection was made to the allow- 
 ance, on the ground that the covenantor had not been notified to defend. Wil- 
 liams V. Burrill, 1 Com. B. 403; Smith v. Compton, 3B. &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.) 633; Robertson v. Lemon, 2 Bush (Ky.), 303. Jeter 
 V. Glenn, 9 Rich. L, (S. 0.) 374. Crisfleld v. Storr, 36 Md. 151; 11 Am. Rep. 
 480. Harding v. Larkin, 41 111. 431. McKee v. Bain, 11 Kans. 578. Sumner v. 
 Williams, 8 Mass. 163, 233. Brooks v. Black, (Miss.) 8 So. Rep. 332. Matheny 
 V. Stewart, (JIo.) 17 S. W. Rep. 1014. 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. 
 
 3 Morris v. Rowan, 17 N. J, L. 309 (1839), Ford, J., saying; "The defend- 
 ant's counsel supposes the costs on eviction are allowed because it was the war- 
 rantor's duty to defend the suit upon receiving notice of the action, and he 
 objects to them In this case because no notice was given to the warrantor or his 
 representatives of the pendency of the action. But all the cases agree in allow- 
 ing 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, other- 
 wise 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." 
 
COVENANTS OF WAEEANTY AND FOE QUIET .ENJOYMENT. 397 
 
 There has been much conflict of opinion, however, upon the ques- 
 tion of t]ie liabihty 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.^ 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,'' especially where it was clear 
 that defense would be useless, and the covenantor notified the 
 covenantee not to defend.' It may be doubted whether the want 
 of notice to defend, or the refusal of the covenantor to defend when 
 notified, is proper to be considered in determining the right of the 
 covenantee to costs. There would seem to be no obligation upon 
 the covenantee to relinquish the estate to the adverse claimant and 
 lose the benefit of his improvements and the increase in value of 
 the premises, merely because the covenantor is unwilling or unable 
 to litigate the title. And it would seem that the right of the 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 
 intents and purposes of the covenant. For these reasons, in addi- 
 tion to those first stated, it is believed that the covenantee is entitled 
 to recover the taxed costs incurred by him in defending the title, 
 
 HoRNBLOWBK, 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, 13 Me. 1; WilUamson v. Williamson, 71 Me. 442. Mercan- 
 tile Trust Co. V. So. Park Residence Co., 94 Ky. 271; 22 S. W. Rep. 314. Win- 
 nepiseogee Paper Co. v. Eaton. 65 K H. 13; 18 Atl. Rep. 171. Walsh v. Dunn, 
 84 111. App. 146. Whether the notice be to prosecute or defend, Potwin v. 
 Blasher, 9 Wash. 460; 37 Pao. Rep. 710. 
 
 2 Terry V. Drabenstadt, 68 Pa. St. 403; Pulweiler 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. 
 
398 MARKETABLE TITLE TO EEAL ESTATE. 
 
 ■whether the covenantor was or was not notified to defend, and 
 whether he neglected or complied with the notice.' 
 
 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.^ 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 
 npon.^ JSTor 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.* 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 
 incurred in an action on the covenant of seisin.^ ISTor 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.' 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.' The right of the 
 grantee to recover costs expended in defending the title is not 
 affected by the fact that he did not take the initiative and proceed 
 against the adverse claimant. He is not bound to follow the advice 
 or request of the grantor to sue one who sets up an adverse claim to 
 the premises. He may subject himself to suit by resisting or inter- 
 fering with such claimant, without losing his right to recover the 
 costs of sucli suit from tlie grantor.* 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 
 
 ' Mr. Rawle inclines to this view. Govts, for Title (5th ed.), § 199, and note 3. 
 
 "Barnett v. Montgomery, 6 T. B. Mon. (Ky.) 333. 
 
 'Harding v. Larkin, 41 111. 413. 
 
 * Christy v. Ogle, 33 111. 395. Smith v. Parsons, 33 W. Va. 644; 11 S. E. Rep. 
 €8. Kane v. Fisher, 2 "Watts (Pa.), 246. 
 
 sCushman v. Blanchard, 3 Gr. (Me.) 266; 11 Am. Pfic. 76. 
 
 « Stark V. Olney, 3 Oreg. 88. 
 
 'Hedrick v. Smith, (Tex.) 14 S. W. Rep. 197. The case does not show 
 whether tlie promise was made hefore or after the warranty. 
 
 8 Smith v. Sprague, 40 Vt. 48. 
 
COVENANTS OF WARRANTY AND FOE QUIET ENJOYMENT. 399 
 
 incurred in defending a suit by the latter,^ provided the suit was 
 brought against the adverse claimant with the concurrence of the 
 ■covenantor.^ 
 
 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 f and if the covenantee be evicted, he may 
 recover all costs and expenses incurred in defending the title, with- 
 out regard to the question of notice to the covenantor to defend." 
 
 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.^ 
 
 § 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 
 
 ' 2 Sutherland Dam. 303. 
 
 ' Kyle V. FauDtleroy, 9 B. Mon. (Ky.) 620. See, also, Dale v. Shively, 8 Kans. 
 276. Kingsbury v. Smith, 13 N. H. 12.5. Here the court said: "The principle 
 deduciblc from the cases cited ■n'ould 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 reasonable and necessary expenses 
 incurred in a proper course of legal proceedings for the ascertainment and pro- 
 tection of his rights under the purchase, as well as a reasonable compensation 
 for his trouble, and expenses to which he may have been put in extinguishing a 
 paramount title. And it seems to us that there can be no sound distinction 
 between the case in which the expenses are incurred in the necessary and proper 
 prosecution of a suit for such ascertainment and protection of the purchaser's 
 rights, and the case of a defense made for the same purpose. In Yokum v. 
 Thomas, 15 Iowa, 67, it was held that the covenantee could not recover costs 
 incurred in a suit to vacate an invalid patent issued to an adverse claimant of the 
 land. And in Qragg v. Richardson, 25 6a, 566; 71 Am. Dec. 190, the covenantee 
 was denied attorney s fees paid by him in a suit to recover the land. 
 
 ' Colvin V. Schell, 1 Grant (Pa.), 226. 
 
 <Cox V. Henry, 32 Pa. St. 21; Anderson v. Washerbaugh, 43 Pa. St. 115. 
 
 » Tarbell v. Tarbell, 60 Vt. 486; 15 Atl. Rep. 104. 
 
400 MAEKETABLE TITLE TO EEAL ESTATE. 
 
 prosecution of his snit.' 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 liis counsel, though no 
 notice of the adverse claimant's suit was given the covenantor and 
 no opportunity given him to assume the defense.^ In other cases 
 such fees have been denied the covenantee unless notice was 
 given the covenantor to defend, and was neglected by him.^ And 
 in still other cases these fees have been refused the covenantee 
 regardless of the (question of notice to the covenantor.* Reasonable 
 
 ' 3 Suth. Dam. 308. Taylor v. Holter, 1 Mont. 688. Swett v. Patrick, 12 Me. 9. 
 
 = Ryerson v. Chapman, 66 Me. 563. This case holds also that the burden is on 
 the plaintifE to show that the fees were reasonable. Harding v. Larkin, 41 111. 
 423. Haynes v. Stevens, 11 N. H. 28. Pitken v. Leavitt, 13 Vt. 379; Turner v. 
 Goodi-ich, 26 Vt. 709. Dale v. Shivley, 8 Kans. 376; McKee v. Bain, 11 Kans. 578. 
 McAlpine 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 Robertson v. Lemon, 2 Bush (Kj-.), 
 801, 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. Ballou, 47 Iowa, 188, it was held that the plaintiff was enti- 
 tled to "reasonable attorney's fees," but that "reasonable fees" meant such as 
 had been actually incurred, and that he 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 enjoy- 
 ment, be entitled to counsel fees paid in resisting the covenantor. Levitzky v. 
 Canning, 33 Cal. 308. 
 
 ^Crisfleld V. Storr, 36 Md. 150; 11 Am. Rep. 480. As an illustration of the 
 widely diverging opinions of judges upon the question of the covenantor's lia- 
 bility 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.) 23 S. W. Rep. 314. Mes- 
 ervy v. Snell, (lo.) 62 N. W. Rep. 767. 
 
 ■i Wilhams v. Burg, 9 Lea (Tenn.), 455. Morris v. Rowan, 3 Harr. (JST. 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 Miss. 161; 8 So. Rep. 
 
COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 401 
 
 personal expenses, and compensation for trouble incurred in defend- 
 ing the title have been allowed the covenantee though the covenan- 
 tor was vouched in to defend the adverse claimant's suit.* Counsel 
 fees for advice and assistance in buying in the outstanding title have 
 in some cases been allowed,^ and in others refused' the plaintiff. 
 If the covenantor assume the defense when requested, it has been 
 held that the plaintifE cannot recover attorney's fees f if, how- 
 ever, the covenantor refuse or neglect to defend when notified the 
 right of the plaintiff to recover those items has been asserted in 
 some cases,^ and denied in others.^ It has been held that the cove- 
 
 333. Matlieny v. Stewart, (Mo.) 17 S. W. Rep. 1014. In Turner v. Miller, 43 
 Tex. 431, it was held that counsel fees should never be allowed the covenantee, 
 unless stipulated for; distinguishing Rowe v. Heath, 33 Tex. 620, where the 
 covenantor had specially promised to bear the expense of litigation. 
 
 iLeffingwell v. Elliott, 19 Pick. (Mass.) 204; 19 Am. Dec. 843. 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. Merritt 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 expenses, 
 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 
 T. Leavitt, 2 N". H. 174. 
 
 2 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. 
 
 * Wimberly v. Collier, 33 Ga. 13. Kennison v. Taylor, 18 N. H. 220. 
 
 5 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 v. Patrick, 13 
 Me. 1. See Ryerson v. Chapman, 66 Me. 563, 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 included in the damages. 
 
 ^ Terry v. Drabenstadt, 68 Pa. St. 400, Shaeswood, J., saying: "Without under- 
 taking 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. 
 
 51 
 
402 IIAEKETABLE TITLE TO EEAL ESTATE. 
 
 nantee ^vill not be entitled to recorer attorney's fees and other 
 expenses incurred by him in getting in an outstanding title to the 
 land.> 
 
 § 175. NOTICE TO DEFEND OB PROSECUTE EJECTMENT. If a 
 
 grantee who has received a covenant of general warranty be evicted 
 in pursuance of the judgment of a court in favor of one setting up 
 an adverse claim to the land, he must show, in an action for breach 
 of the covenant of warranty, that the title so established was supe- 
 rior to that derived by himself from the defendant, the covenantor. 
 It would be obviously unjust that the covenantor should be exposed 
 to the dano-er of collusion between the grantee and the adverse 
 claimant resalting 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 tlie covenantee, when sued in ejectment by an 
 adverse claimant, notifies the covenantor of the pendency of the 
 suit and requests him to appear and defend it, the latter thereby 
 becomes substantially a party to the suit and bound liy 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.^ These decisions would seem necessarily 
 
 ' Mcrcautile Trust Co. v. S. Park Residence Co., 94 Ky. 271; 23 S. W. Rep. 
 314. 
 
 •' Abbott's Trial Ev. 519; Rawle Covts. for Title (.5th eel.), g IIT. Salle v. Light, 
 4 Ala. 700; 39 Am. Dec. 317, case of personal property. Hinds v. Allen, 34 Conn. 
 18.5, 195. Gragg v. Richardson, 25 Ga. 566; 71 Am. Dec. 190; Clements v. Col- 
 lins, 59 Ga. 134; Haines v. Fort, 93 Ga. 24; 18 S. E. Rop. 994; Phillips v. Cooper, 
 93 Ga. 639; 20 S. E. Rep. 78. Claycomb v. JIuuger, 51 111. 373. Morgan v. :Mu1- 
 doon, 83 Ind. 847; Bever v. North, 107 Ind. 545. Jones v. Waggoner, 7 J. J. 
 Marsh. (Ky.) 144; Graham v. Dyer, (Ky.) 39 8. W. Rep. 346; EUiot v. Sanfley, 
 89 Ky. .57; 11 8. W. Rep. 200; Jones v. Jones, (Ky.) 7 8. W. Rep. 886. Jackson 
 V. Marsh, 5 Wend. (N. Y.) 44, a case in which the covenantee confessed judg- 
 ment in favor of the adverse claimant. Davis v. Wilbovirne, 1 Hill L. (S. C.) 28, 
 case of personal property. In Buckels v. Mouzon, 1 Strobh. L. (8. 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 
 
COVENANTS OF WAEEANTY AND FOE QUIET ENJOYMENT. 403 
 
 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 notiiied 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 tlie 
 covenantor to appear and defend was in no way conclusive upon 
 him, inasmuch as there was no law or rule, or practice by wliieli he 
 might be made a party to the suit.' The better opinion, Iiowever, 
 
 in issue. Greenlaw v. Williams, 3 Lea (Tenu.), 533. Groesbeck v. Harris, 
 82 Te.x. 411; 19 S. W. Rep. 850. Somers v. Schmidt, 24 Wis. 419; 1 Am. 
 Rep. 191. Long v. Howard, (ilinn.) 53 N. W. Rep. 1014. Fitzpatrick v. 
 Hollman, (Mich.) 63 N. W. Rep. 349. It is immaterial upon what title the 
 covenantee was evicted if the covenantor was notified to defend. Wen- 
 dell v. North, 24 Wis. 223. Notice to defend a suit for dower binds the 
 covenantor. Terry v. Drabeustadt, 68 Pa. St. 400. If the covenantee neither 
 notifies his covenantor, nor avails himself of a valid defense which the cove- 
 nantor 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 arbitra- 
 tors 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.), 2H3. 
 In Texas the covenantee, when sued by an adverse claimant, is not only alio^\'ed 
 to implead the covenantor and bind him by the result, but he may have judg- 
 ment over against the covenantor for breach of warranty in case the adverse 
 claimant establishes his titleand obtains judgment; and this to prevent multiplic- 
 ity of actions. Kirby v. Estell, 75 Tex. 485; 13 S. W. Rep. 807; Johns v. Hardin, 
 (Tex.) 16 8. W. Rep. 623, Such a practice is, of course, inadmissible under com- 
 mon-law systems of procedure. In a case in Texas in which, after the warrantor 
 had been vouched in to defend, his co-defendant, the warrantee, amended his 
 answer so as to claim judgment over against the warrantor in case of an eviction, 
 it was held that the latter, having received no notice of the amendment, was not 
 bound by a judgment for breach of warranty rendered against him in pursuance 
 of such amendment. The only effect of the pleadings, as they stood, was to make 
 the judgment against the warrantee conclusive of the question of paramount title 
 in the emctm: Mann v. Matthews, 83 Tex. 98; 17 S. W. Rep. 395. 
 
 'Williams v. Shaw, N. C. Term. Rep. 197; 7 Am. Dec. 706; Shober v. Robin- 
 son, 3 Murph. (N. 0.) 33; Wilder v. Ireland. 8 Jones L. (N. 0.) 88; Saunders v. 
 Hamilton, 3 Hayw. (N. C.) 283; Martin v. Cowes, 3 Dev. & Bat. L. (N. Car.) 101, 
 the court saying: " In our opinion the record of the judgment is not only not 
 conclusive evidence, but it is not any evidence of title against the vendor. It 
 Tvould 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 ascertain- 
 ing the truth and asserting his right. In real actions a warrantor might be made 
 
404 JIAEKETABLE TITLE TO REAL ESTATE. 
 
 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.' Judgment against the 
 covenantee in trespass, as well as in ejectment, binds the covenantor 
 if he has been notified of the suit and requested to defend.^ So, 
 also, in trespass to try title,' and in foreclosure proceedings.'' 
 
 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 ejectment 
 plaintiff, or show a better title in himself.^ The notice makes him a 
 
 a party by voucher; in ejectment a landlord may come in to defend the possession 
 of his tenant, but there is no provision of laTV by which a vendor can be brought 
 in to vindicate 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 infonnation in his power as 
 to the validity of the plaintiff's title. If he fails to do so, if he stands by and 
 permits a recovery for want of evidence of which he has knowledge, he cannot 
 be permitted to show that the result would have been otherwise if the evidence 
 had been produced, and so avoid the effect of a recovery in a suit against him. 
 If he pays no attention to the notice, and turns his back upon the suit, he cannot, 
 when called upon to respond, be permitted to prove that the defendant iu the 
 original suit would have prevailed if the defense had been conducted with a 
 fuller knowledge of material facts." Under a statute permitting the landlord ta 
 be made defendant when the tenant is sued in ejectment, a vendor who war- 
 ranted the title cannot insist on being substituted as defendant. Linderman v. 
 Berg, 12 Pa. St. 301. 
 
 ^Merritt v. Morse, 108 Mass. 270. 
 
 3 Johns V. Hardin, (Tex.) 16 S. W. Rep. 623. 
 
 ■i Collier v. Cowger, 52 Ark. 322; 12 8.W. Rep. 702. 
 
 °ilerritt v. Morse, 108 Mass. 270, citing Shears v. Dusenbury, 13 Gray (Mass.), 
 29J; Chamberlain v. Preble, 11 Allen (Mass.), 370, and Haven v. Grand Juno. R. 
 Co , 12 Allen (Mass.), 837. Cooper v. Watson, 10 Wend. (N. Y.) 205. Morris v. 
 Rowan, 17 ^\ .1. L. 307, obiter. Ives v. Xiles, 5 Watts (Pa.), 323. Middleton v. 
 Thompson, 1 Spear L. (S. C.) 67; Wilson v. McElwee, 1 Strobh, L. (S. C.) 65. 
 Williams v. Burg, 9 Lea (Tenn.), 455. Williams v. 'Weatherbee, 2 Aik. (Vt.) 357. 
 Wendel v. North, 34 Wis. 223. The foregoing decisions are rested upon the 
 
COVENANTS OF WAEEANTT AND FOE QUIET ENJOYMENT. 405 
 
 privy to the action, and he is bound whether he does or does not 
 appear and defend.' 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.' 
 N"otice should be given to the covenantor himself. Notice to his 
 agent, appointed to collect the purchase money, is insufficient.^ 
 Notice to tlie personal representatives of the covenantor need not 
 be given if the covenantor was properly notified during his life- 
 time.'' If the covenantee be evicted under a title derived from 
 hhnself, 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.' The notice to appear and defend relieves the 
 covenantee and the adverse claimant of any imputation of col- 
 lusion." But if there be actual collusion, or judgment be rendered 
 against the covenantee through his negligence, the covenantor will 
 
 familiar principle envinciated 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 hound 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 Govts. (5th ed.) § 117. Wimberly v. Collier, 32 Ga. 13. MoConnell 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 rendered 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. W. Rep. 395; Mann v. 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. 
 1063. 
 
 ■i Brown v. Taylor, 13 Vt. 631; 37 Am. Dec. 618. This decision was criticised 
 in Somers v. Schmidt, 24 Wis. 420; 1 Am. Dec. 191. See, also, Rawle Govts. 
 (5th ed.) § 119. 
 
 ' Rawle Govts. (5th ed.) § 117, note. 
 
 « Swenk v. Stout, 3 Yeates (Pa.), 470, 473. 
 
4-06 MARKETABLE TITLE TO REAL ESTATE. 
 
 not be bound, notwithstanding the notice.^ If the covenantor 
 appears 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 constrnctively a party to the suit and will not be per- 
 mitted afterwards to show that his title was good.' 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.s 
 
 The notice must be unequivocal, certain and explicit. Mere 
 knowledge of the action and notice to attend the trial M'ill not suf- 
 fice unless attended with an express notice that he will be required 
 to defend the title.* The covenantor must be i-equested to take 
 upon himself the defense of the title. Knowledge of the adverse 
 suit, incidentally acquired through third parties, will not conclude 
 him.^ 
 
 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 
 
 ' Sisk V. Woodruff, 15 111. 15, ohiter. Davis v. Smith, 5 Ga. 274. 
 
 « Brown v. Mcilulleii, 1 Hill L. (S. C.) 39. Collis v. Cogbill, 9 Lea (Tenn.), 
 137. 
 
 2 Eaton V. Lyman, 26 Wis. 62. It seems that iu this State the covenantor, 
 though not a partj' to the suit, is by statute entitled to a new trial as a matter of 
 right. 
 
 ■»Paul V. Witman, 3 Watts &S. (Pa.) 409. ColUns 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 applied in all cases in which it has been sought to 
 bind one person by the re.sult of a suit against another. Thus, in Chicago City 
 V. Rollins, 3 Bl. (U. S.) 418, it was held that an individual would be concluded 
 by a judgment recovered against a corporation for his act or neo-lio-ence 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 expect 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 TrLGii>r.\N, J. 
 
 'Somers v. Schmidt, 24 Wis. 419; 1 Am. Rep. 191. 
 
COVENANTS OF WARRANTY AND FOE QUIET ENJOYMENT. 407 
 
 one instituted against him.' This, liowever, lias oeen aenied upon 
 the ground that there is no principle upon whicli the covenantor 
 can be substituted as plaintiff iu the action.^ The covenantee, after 
 beginning a suit against the adverse claimant and notifying the cove- 
 nantor to appear and prosecute, may dismiss the suit without affect- 
 ing his right to recover on the warranty.^ 
 
 No particular form of notice is necessary ; it will he sufficient if 
 it explicitly notifies the covenantor of the suit and requests him to 
 defend it.* 
 
 It lias been held that the notice must be in writing,^ but the 
 weight of authority establishes the sufficiency of a verbal notice.^ 
 
 ■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 G:i. 570; 
 71 Am. Dec. 190. Walsh v. Dunn, 34 111. App. 146. 
 
 ' Ferrell 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. 
 
 ' White V. Wilhams, 13 Tex. 258. 
 
 ■'Williams v. Burg, 9 Lea (Tenn.), 455. 
 
 'Mason v. Kellogg, 38 Mich. 132. Bronbon, J., in Miner v. Clark, 15 Wend. 
 (N. Y.) 425. Verbal notice of an api^lication for the appointment of commis- 
 sioners 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 thinii: 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 real estate, and iu view of the effect which the law attributes 
 to this proceeding, it 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 sum- 
 mons and similar procesdiugs in some of our States, and of course such proceed- 
 ings could not be verbal. It contemplates 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-recog- 
 nized general rule that everj' notice of that character must be iu writing." 
 
 'Miner v. Clark, 15 Wend. (N. Y.) 425, Bbonson, J., dissenting. Somers v. 
 Schmidt, 34 Wis. 419; 1 Am, Rep. 191. The sufficiency of a verbal notice seems 
 to have been assumed in CoUingwood v. Irwin, 3 Watts (Pa.), 306, and in Green- 
 law V. Williams, 3 Lea (Tenn.), 538. 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 show- 
 ing title when he is sued on his warranty, it is not necessary for the notice to him 
 by the defendant in the action of ejectment to be in writing or in any particular 
 form, or that a demand should be made of him to defend the action. If. the 
 
408 MARKETABLE TITLE TO EEAL ESTATE. 
 
 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 of the 
 covenantee when suing for a breach of the covenant of warranty.* 
 But the better opinion appears to be that in such a case tlie 
 judgment is evidence tending to show an eviction only, the bur- 
 den still being upon the covenantee to show that the eviction was 
 under a paramount title.^ 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 sub- 
 jects him to but little inconvenience. It by no means follows that 
 a judgment 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.' 
 
 The notice must be given in reasonable time.'' It will sufBce if 
 time enough is allowed to prepare the case for trial. If ejectment 
 
 ■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; CoUingwood v. Irwin, 3 Watts (Pa.), 306, 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. 
 
 '' Graham v. Tankersley, 15 Ala. 634. Hinds v. Allen, 34 Conn. 195. Rhode 
 V. Green, 28 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.) 
 312; 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 JIo. 128; Holladay v. Menifee, 30 Mo. App. 307. 
 Dalton V. Bowker, 8 Nev. 190. Middleton v. Thompson, 1 Spear L. (8. C.) 67. 
 Stevens v. Jack, 3 Yerg. (Tenn.), 403, case of personal property. Clark v. Mun- 
 ford, 63 Tex. 531. 
 
 ^Sisk V. Woodruff, 15 111. 15; Brady v. Spurck, 27 111. 479. 
 
 " Middleton v. Thompson, 1 Spear L. (S. C.) 67; Davis v. Wilboitrne, 1 Hill 
 L. (S. C.) 38; 26 Am. Dec. 154. 
 
COVENANTS OF WARRANTY AND FOR QUIET ENJOYMENT. 409 
 
 has been actually begun against the covenantee, it is immaterial that 
 his notice to defend was given before the complaint or declaration 
 in ejectment was filed.' Whether notice has or has not been given 
 to the covenantor to appear and assist in the defense of a suit attack- 
 ing the title conveyed by him is a question for tlie jury.^ The sufS- 
 ciency of the notice, when given, is to be determined by the court.^ 
 Notice to the covenantor to appear and defend a suit by the adverse 
 claimant is not indispensable, nor a condition precedent, to the right 
 of the covenantee to recover on the warrant}' 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 nnder a paramount title.* 
 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 cannot recover on the war- 
 ranty.' 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 comj:)lete.'' 
 It has been held that if judgment in ejectment be i-ecovered against 
 the covenantee, not on the ground that the plaintiff's title was 
 superior to tliat of the covenantor, but on the ground that the defend- 
 ant 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 be bound by the judgment, tliough he was notified 
 to appear and defend the suit.'' 
 
 1 Cook V. Curtis, 68 Mich. 611; 36 N. W. Rep. 692. 
 
 «Collingwood v. Irwin, 3 Watts (Pa.), 310. 
 
 3 Rawle Govts. (5th ed.) § 130. 
 
 ■• Chapman v. Holmes, 5 Halst. (10 N. .1. L.) 34. King v. Kerr, 5 Ohio, 1.58; 33 
 Am. Dec. 777. Pitldn v. Leavitt, 13 Vt. 879. Ryerson v. Cliapman, 66 Me. 557. 
 Talhot V. Bedford, Cooke (Tenn.), 447. Boyle v. Edwards, 114 Mass. 378. 
 Wheelock v. Overshiner, (Mo.) 19 S. W. Rep. 640. The foregoing cases arc 
 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 cove- 
 nantor, though the latter was not notified of the adverse claimant's suit. Ten- 
 TBEDEK, 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. 
 
 « Radeliff v. Ship, Hard. (Ky.) 299. 
 
 •■Kelly V. Dutch Church, 8 Hill (N. Y.), 105. 
 31 
 
410 MARKETABLE TITLE TO REAL ESTATE. 
 
 Isotwitlistaadiug 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 jjlace 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.^ 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 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 
 jjlaintiff, 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.^ 
 
 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.^ An eviction 
 by one holding under a prior appointment by the grantor is equiva- 
 lent to an eviction by the grantor himself.* It has been held that if 
 the grantor convevs a clear title with o-eneral warrantv, and the 
 
 ' Folliard v. Wallace, 2 Johns. (X. Y.) 395. Williams v. Wetherbes, 3 Aik. 
 (Vt.) 337; Knapp v. Marlboro, 34 Vt. 335; Pitkin v. Leavitt, 13 Vt. 379, 384; 
 Swazey v. Brooks, 34 Yt. 451. See cases cited, post, § ITta. Parol evidence of 
 testimony given on the trial of ejectment against the covenantee is admissible to 
 show that recovery was under a title derived from the covenantor. Leather v. 
 Poultney, 4 Binn. (Pa.) 356. 
 
 'Peck v Houghtaling, 38 Mich. 127. Clements v. Collins, 59 Ga. 124, the 
 court saying: "The great and insurmountable defect in the evidence, however, is 
 that it fails to show that the recovery in ejectment was had upon title outstand- 
 ing at the date of the warranty. Kothing appears which is the least inconsistent 
 with the covenant. Ten years bad 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 ejectment 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 \ipon which the premises were recovered 
 in the action of ejectment." 
 
 sparies v. Smith, 11 Rich. L. (S. C.) 83. 
 
 * Calvert v. Sebright, 15 Beav, 156. 
 
COVENANTS OF WAERANTY AND FOE QUIET ENJOYMENT. 411 
 
 grantee fails to record liis deed in due time, by I'cason of whicli lie 
 loses tlie estate to a subsequent grantee of the covenantor who first 
 records his deed, there is no breach of tlie covenant of warrant}-, 
 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.^ 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 
 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.^ 
 
 § 17(3. PLEADING ANB BURDEN OF PROOF. In an action on a 
 covenant of warranty tlie plaintiff must set out the covenant or its 
 substance in his declaration or conqjlaint and then aver an eviction 
 by one having lawful right.^ It is not sutiicient merely to negative 
 the words of the covenant ; the eviction must be alleged.'' But it 
 is not necessary that the facts constituting the eviction^ nor the 
 
 ' 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 containing the covenant 
 having been a mortgage. Covenants for Title (5th ed.), §128, n. 5. See, also, 
 Seott V. Scott, 70 Pa. St. 244. 
 
 ' Curtis V. Deering, 13 Me. 499; Williamson v. Williamson, 71 Jle. 442. Lukeus 
 V. Nicolson, 4 Phila. R. 23. See, also, Maeder v. Carondelet, 26 Mo. 114. Staples 
 V. Flint, 38 Vt. 794, semUe. 
 
 2 See form, 3 Cliit. PI. 546. Dexter v. Manly, 4 Cush. (Mass.) 14. Acovenant 
 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, 31 Tex. 380; Raines v. 
 Callaway 27 Tex. 678. 
 
 '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 declaration in 
 covenant on a general warranty of lands, which states that the defendant 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 after- 
 wards been evicted in due course of law is sufficient. Swenk v. Stout, 2 Yeates. 
 
412 MAEKETABLE TITLE TO EEAL ESTATE. 
 
 nature of the eviction, that is, whether actual or constructive, be 
 alleged ; ' nor is it necessary that the paramount title under which 
 the eviction ti-anspired nor the nature thereof be set forth particu- 
 larlj.2 Kor need the plaintiff allege that he relied on the defend- 
 ant's warranty, for that were to allege what the law presumes.'^ 
 But he must aver that lie was evicted by one having a lawful title* 
 and that such title was older and better than that protected by the 
 covenant, otherwise it would not appear but that the plaintiff was 
 evicted under a title derived from liimself.^ Of course, however, 
 if the warranty was against the claims of a particular person, it 
 would be sufficient to allege that the plaintiff was evicted by that 
 person ^vithout averring that his title was older or better than that 
 of the defendant or that it existed at the time of the covenant.^ It 
 
 (Pa.), 470. An averment that the covenantor 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. 88. Eeese v. McQuillikin, 7 
 Ind. 451. Mills v. Rice, 3 Neb. 76. In Day v. Chism, 10 Wh. (U. 8.) 449, the 
 following language in the declaration " that the said O. had not a good and suffi- 
 cient 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. 
 
 ' Reese v. jMcQuillildn, 7 Ind, 451. Sheffey v. Gardner, 79 Va. 313. 
 
 « Talbot V. Bedford, Cooke (Tenn.), 447. 
 
 s Norris v. Kipp, 74 Iowa, 444; 38 N. W. Rep. 153. 
 
 ^Greenby v. Wilcox, 2 Johns. (N. Y.) 1; Webb v. Alexander, 7 Wend. (N. Y.) 
 286. 
 
 » Wotton V. Hele, 3 Saund. 177 and n. 10; Hayes v. BickerstafE, 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.) 86. Crisfleld v. Storr, 36 Md. 148; 11 Am. 
 Rep. 480, and analogous cases there cited. Pitkin v. Leavitt, 13 Vt. 384. Gid- 
 dings v. Caufield, 4 Conn. 482. Jones v. Jones, 87 Ky. 82; 7 S. W. Rep. 886. 
 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 averment 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 
 
OOVENANTS OF WAEEANTY AND FOB QUIET ENJOYMENT. 413 
 
 is not necessary to aver that tlie title to tlie land has been tried ; it 
 is sufficient to aver an eviction by paramount title, and the supe- 
 riority of that title will be determined at tlie trial ; ' nor is it neces- 
 sary, where the plaintiff was evicted by judgmp.nt and process in a 
 possessory action, to aver that the defendant had notice of the 
 action and was requested to defend it.' Xor is it necessary to 
 allege that the grantor did not, after executing the covenant, 
 acquire a title which would enure to the benefit of the grantee by 
 estoppel f nor that the covenantee relied on the warranty, since that 
 is a presumption of law.* 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, con- 
 tained in the deed. Thus, where the declaration set forth a convey- 
 ance and warranty of the entire estate in fee, and a conveyance 
 with warranty, subject to a mortgage, appeared in evidence, the 
 variance was held fatal.^ The plaintifE must also allege that the 
 title or claim under which he was evicted, came within the defend- 
 ant's covenants." It will be sufficient, however, if the covenant be 
 stated according to its legal efliect and not in the precise language 
 of the deed.'' 
 
 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 
 
 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 cove- 
 nant. Language of Grason, J., in Crisfield v. Storr, 36 Md. 148; 11 Am. Rep. 
 480. An averment that a stranger had brought suit and recovered the laud, 
 without alleging against whom he recovered, or that the plaintiff's (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, 31 Tex. 380. 
 
 ' Patton V. Kennedy, 1 A. K. Marsh. (Ky.) 388; 10 Am. Dec. 744. 
 
 ^ Rhode V. Green, 36 Ind. 83. 
 
 ' Mason v. Cooksey, 51 Ind. 519. 
 
 ■> Norris V. Kipp, 74 Iowa, 444; 38 N. "W. Rep. 153. 
 
 5 Shafer v. "Wiseman, 47 Mich. 63; 10 N. W. Rep. 104. 
 
 « Dexter v. Manly, 4 Gush. (Mass.) 14. 
 
 ' Bland v. Thomas, (Ky.) 3 S. W. Rep. 595. 
 
41 4 MARKETABLE TITLE TO REAL ESTATE. 
 
 he held.' But tlie burden shifts if the defendant so pleads as to 
 have the affirmative liimself. Tims, where the breach alleged was 
 that the title was outstanding in another bj reason of which the 
 phiintiff could not get possession, and the defendant pleaded that 
 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.' And if the co^•e- 
 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 i-eason for this 
 rule is that a party in posscbsion of lands is always presumed to 
 have a valid title.^ 
 
 The deed containing the covenant, if projaerly executed and 
 recorded, will be received in evidence to show the warranty, with- 
 out proof of its execution.'' 
 
 § 177. COVENANT FOE. ttUIET ENJOYMENT. The co\-enant for 
 quiet enjoyment and the covenant for warranty are in effect the 
 same,^ 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, Avliile the latter is not broken until the dis- 
 turbance has culminated in an eviction." Thus, ejectment brought 
 by the true owner against the covenantee is a breach of the cove- 
 nant for quiet enjoyment, while there is no breach of the covenant 
 
 ' Pcclc v. Houghtaling, 88 Mich. 137. Holhiday v. Jlenifee, 30 Mo. App. 215. 
 
 - Owen V. Thomas, Go 111. 320. In Georgia it has been held that if the cove- 
 nantee shows that since his purchase the land has been sold under execution 
 against a stranger, and that he surrendered the possession of such purchase (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. 
 
 ' Heyn V . Ohman, (Keb.) 60 X. W. Rep. 952, citing Ward v. Mcintosh, 12 
 Ohio St. 231. Jones v. Bland, 112 Pa. St. 176; 2 Atl. Rep. 541. Brown v. 
 Feagin, 87 Keb. 256; 55 N. W. Rep. 1048. 
 
 ■•Williams v. Weatherbee, 2 Aik. (Vt.) 337. 
 
 '3 Washb. Real Prop. 467 (660); Rawle Govts, for Title (oth ed.), § 96. Fowler 
 V. Poling, 2 Barb. (N. Y.) 300; Rea v. Minkler, 5 Lans. (N. Y.) 196. 
 
 = See 3 Sugd. Vend. 273 (601) and Rawle Govts, for Title (5th ed.), g 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 
 
COVENANTS OF WARRANTY AND FOB QUIET ENJOYMENT. 41 5 
 
 of warranty until the action lias resulted in an eviction.' 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.^ The principal use and 
 employment of this covenant, therefore, is in the creation and con- 
 veyance of estates for years. It is broken only by an actual dis- 
 turbance of the possession by one having a better right,' 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 jDara- 
 mount title.* With respect to the acts of the lessor, it is immaterial 
 that the lease does not contain an express covenant for quiet enjoy- 
 ment. Such a covenant will always be implied from the lease itself 
 in case of a tortious disturbance by the lessor." 
 
 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.** 
 
 evicted from a ground rent, must show that his tenancy has been successfully 
 interfered with. A mere suit to prevent him from using tlie premises for par- 
 ticular purposes will not amount to a breach of the covenant. Jarden v. Laf- 
 ferty, (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. 
 Rawlo Govts. (5th ed.) § 130. 
 
 ' Stewart v. West, 14 Pa. St. 336. 
 
 ^ Sudg. Vend. (14th ed.) 601; Rawle Govts. (5th ed.) § 130. 
 
 3 Ante, p. 336. 
 
 "Moore v. Weber, 71 Pa. St. 439; 10 Am. Rep. 70S. 
 
 'Dexter v. Manly, 4 Gush. (Mass.) 14. 
 
 " Wilder v. Ireland, 8 Jones L. (N. C.) 88. Of course, if the life estate has 
 fallen in and the reversioner has entered, the covenant is broken. Parker v. 
 Richardson, 8 Jones L. (N. G.) 453. 
 
CHAPTEE XV. 
 
 COVENANT FOR FURTHER ASSURANCE. 
 
 IN GENERAL, g 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 tlie 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 reason- 
 ably required." ' It is one of the six covenants inserted in convey- 
 ances in those States or localities in which it is customary to employ 
 all of the " full " or '• usual " covenants for title. Actions at law 
 for breach of the covenant for further assurance are of infrequent 
 occurrence, and few cases -of that kind are to be met with on this 
 side of the Atlantic. The remedy upon the covenant is usually 
 sought in equity ; ^ that is, to compel the vendor to execute the 
 further assurance, or, it seems, to remove an incumbrance from the 
 premises.^ The execution of the further assurance will, of course, 
 operate to pass any estate which the vendor may have acquired after 
 the execution of the original conveyance. It is to be observed, how- 
 ever, that the terms '' general " or " special " as descriptive of the 
 other covenants for title is not applicable to the covenant for further 
 assurance as it is usually written. In this respect, it is dependent 
 
 ' Rawle Govts, (oth ed.) p. 29. This langviage does not in terms require tlie 
 vendor to remove an incumbrance from the premises. It seems, however, that 
 the agreement "to make and execute such otlier assurances" is construed to 
 have that effect. 3 Sudg. Vend. 294 (613); Piatt Covts. 344. King v. Jones, .5 
 Taunt. 427. 
 
 ' Post, § 207. 2 Sugd. Vend. 294 (613); Rawle Covts. (oth ed.) § 98, Cochran 
 V. Pascault, 54 Md. 16. 
 
 " 2 Sugd. Vend. (14th Eng. ed.) 618. King v. Jones, 5 Taunt. 437. This cove- 
 nant 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 war- 
 ranty. East Tenn. Nat. Bank v. First Nal, Bank, 7 Lea (Tenn.), 420, and it 
 may be doubtful whether it can be done under a covenant against incumbrances 
 under the rule which limits the liability of the covenantor to the consideration 
 money and intent. Ante, p 313. 
 
COVENANT FOE FUKTHEE ASSTJEANOE. 417 
 
 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 an incumbrance 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.' Xor 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.^ 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.^ 
 
 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 out- 
 standing paramount title to the real estate by reason of this covenant, 
 and to tender the title so acquired in satisfaction of a breach of the 
 other covenants for title.^ 
 
 § 179. WHAT CONSTITUTES BREACH. ESTOPPEL. ASSIGBT- 
 ABILITY. DA.MAGES. The covenant for further assurance is not 
 broken until the grantor refuses to execute such further conveyance, 
 devised and tendered by the purchaser, as he may reasonably 
 require, or to do some act or thing necessary to perfect the title, 
 
 ' This is Mr. Rawle's opinion (Govts, for Title [.Sth ed.], § 105), citing Davis v. 
 ToUemache, 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, 33 111. 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 release 
 of all the grantor's right or interest, but a conveyance of an estate of a particu- 
 lar 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 Arm- 
 strong V. Darby, 36 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 incumbrance not created by himself. 
 
 ' Taylor v. Dabar, 1 Ch. Gas. 274. 
 
 1 Lamb v. Burbank, 1 Sawy. (G. C.) 227. 
 
 'Cochran v. Pascault, 54 Md. 1. 
 53 
 
418 MARKETABLE TITLE TO EEAL ESTATE. 
 
 sueli as may be reasonaoiy insistea upon by the purchaser.^ The 
 vendor cannot be required to execute useless and unnecessary con- 
 veyances,^ nor to do acts in themselves impracticable f such as to 
 procure a con^'eyance from a person non compos mentis,^ or to pro- 
 cure a certain thing to be done by one physically incapable of per- 
 formance.^ 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 the grantor from 
 setting up an after-acquired title to the estate.* The better opinion 
 seems to be that this covenant operates an actual transfer of the 
 after-acquired estate f it has been held, however, that the covenant 
 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 tlie covenant in equity.'" 
 
 The covenant for further assurance is necessarily prospective in its 
 operation, and passes with the land to subsequent grantees." The 
 breach, when it occurs, is a continuing one, and may be availed of 
 by him who suffers the ultimate damage, though he be not the one 
 who made the demand for further assurance.'^ 
 
 ' Rawle Govts. (5th ed.) § 99. Bennet's Case, Cro. Eliz. 9. Miller v. Parsons, 
 9 Johns. (N. Y.) 336. Fields v. Squires, Deady (IT. S.), 388. The covenant for 
 further assurance is broken if the grantor refuses to procure a release of an incum- 
 brance 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 out- 
 standing mortgage created by a prior grantor, the vendor cannot be made liable 
 on his covenant for further assurance. 
 
 * Anon., Moore, 134. 
 
 'Anon., ]\Ioore, 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 E. Co., 24 Wis. 553. Bennett v. Waller, 23 111. 183. 
 
 ' Bennett v. Waller, 23 111. 183. 
 
 •» Chauvin v. Wagner, 18 Mo. 531. 
 
 " Bennett v. Waller, 23 111. 97. Colby v. Osgood, 29 Barb. (Ky.) 389. 
 
 "Rawle Covts. (5th ed.) § 230. 
 
COVENANT FOE FUETHEE A88UEANCE. 419 
 
 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.' 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.^ 
 
 • Rawle Govts, for Title (5th ed.), § 195. Burr v. Todd, 41 Pa. St. 213, oUter. 
 Questions as to tlie measure of damages for a breacli of the covenant for further 
 assurance are not liljely 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 contents himself with an action on 
 those covenants. 
 
 ' This in analogy to the rule that the damages for a breach of the covenant of 
 warranty, seisin or against incumbrances, is to be measured by the consideration 
 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. 
 
CHAPTEE XVI. 
 
 DETENTION OP THE PURCHASE MONEY WHERE THERE HAS BEEN 
 A BREACH OP THE COVENANTS FOR TITLE. 
 
 GENERAL RULE. § 180. 
 
 MERGER OF PRIOR AGREEMENTS. § 181. 
 
 PURCHASE "WITH KNOWLEDGE OF DEFECT. § 183. 
 
 RECOUPMENT. § 183. 
 
 RECOUPMENT IN FORECLOSURE OF PURCHASE-MONEY 
 
 MORTGAGE, g 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- g 192. 
 
 § 180. GENERAL RULE. In most cases the detention of the 
 purchase money by the pui'chaser of lands on faihire of the title, 
 amounts to an election on his part to rescind the contract. In a 
 subsequent portion of this work ' 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 recoupment, 
 his eviction from the premises by one holding under a prior incum- 
 brance 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 PUJiCIIASK MONEY BREACH OF COVENANT. 421 
 
 as one of the series of propositioiia of law goveraing the right of 
 the purchaser to recover back or to detain the purchase money, as 
 set forth in anotlier part of this work.^ 
 
 If the contract has heen executed hy the delivery and acceptance of 
 a conveyance containing a covenant of warranty, or for quiet enjoy- 
 ment, or against 'mcumlirances, and there has been such a breach 
 of those covenants as ivould give the grantee a present right to 
 recover substantial damages against the grardor, the fanner will, 
 in an action against him for the purchase money, be alloioed 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? 
 
 ' These propositions begin witli chapter 24, post, § 237. 
 
 'Rawle Govt, (oth ed.) § 336; 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. In the case of Patton v. 
 Taylor, 7 How. (U. S.) 132, it was held that the covenantee could not detain the 
 purchase money, in the absence of a breach of the covenant of warranty, though 
 the covenantor was insolvent. To the text: Peden v. Moore, 1 Stew. & P. (Ala.) 
 81; 21 Am. Dec. 649, oh. diet.; Wilson v. Jordan, 3 Stew. & P. (Ala.) 93; Dunn v. 
 White, 1 Ala. 645; Cullum v. Bank, 4 Ala. 31; 37 Am. Dec. 725; Cole v. Justice, 
 8 Ala. 793; Tankersly v. Graham, 8 Ala. 347 ; Knight v. Turner, 11 Ala. 639 ; 
 McLemore v. Mabson, 20 Ala. 139; Thompson v. Christian, 38 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. 
 Biggs, 93 Ala. 252; 9 So. Rep. 359; Heflin v. Phillip, (Ala.) 11 So. Rep. 729. 
 Wheat v. Dotson, 13 Ark. 699; McDaniel v. Grace, 15 Ark. 135; Robards v. 
 Cooper, 16 Avk. 288; Key v. Henson, 17 Ark. 254; Hoppes v. Cheek, 21 Ark. 
 585; Lewis v. Davis, 31 Ark, 239; Busby v. Treadwell, 24 Ark. 457; Sorrells v. 
 McHenry, 38 Ark. 137. But in a suit to foreclose a vendor's lien the covenantee 
 may have credit for all sums necessarily paid by him to protect the title. Morris 
 V. Ham, 47 Ark. 393. 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 purchase 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; 11 S. W. Rep. 371. To the text: Salmon v. Hoffman, 3 Cal. 
 138; 56 Am. Dec. 333; Fowler v. Smith, 3 Cal. 39. In Norton v, Jackson, 5 Cal. 
 
422 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, 
 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 
 
 263, it was held that eviction by process of law was necessary to enable the cove 
 nantee to set up breach of warranty as a defense in an action for the jjurchase 
 money. To the text: Hurd v. Smith, 5 Colo. 233. Smoot v. CofHn, 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. 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 
 remedy upon the warranty would not protect him. It would seem, also, that lie 
 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 pur- 
 chaser 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; Lafiirge v. Matthews, 68 111. 328; People v. Sisson, 98111. 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 unas- 
 serted. 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 per- 
 fected. Smith V. Newton, 38 111. 230; Weaver v. Wilson, 48 111. 128. Whis- 
 ler 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; 
 Oldfleldv. Stevenson, 1 Ind. 153; Streeterv. Henley, 1 Ind. 401; Clark v. Snelling, 
 1 Ind. 382; Hooker v. Folsom, 4 Ind. 90; Wilkersou v. Chadd, 14 Ind. 448i 
 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; Mahony v, Robbins, 49 Ind. 146; JoneS 
 v. Noe, 74 Ind. 868; Gibson v. Richart, 88 Ind. 318; Bethell v. Bethell, 93 Ind. 
 
DETENTION OF P0ECIIASE MONEY BREACH OF COVENANT. 423 
 
 the seller, tlie purchaser's only remedy is under the covenants." ' 
 Practically the same rule exists in many of the American States, 
 with this qualification, that in any case in wliicli there has Ijeen a 
 breach of the covenants which the purchaser has received, for 
 
 318; Marsh v. Thompson, 103 Ind. 272; 1 N. E. Rep. 630; Parker v. Culbertsou, 
 (Ind.) 27 N. E. Rep. 619. In Small v. Reeves, 14 lud. 163, a leading case in that 
 State, the rule was thus stated: "Where n deed (with covenants) is made and 
 accepted, and possession taken under it, want of title will not enahle the pur- 
 chaser 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 accovmt 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 pro- 
 ceedings to collect the purchase money, until the adverse claimant's suit should 
 be determined. Overruling Strong v. Downing, 84 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 prescription. To the te.xt: Allen v. 
 Pegram, 16 Iowa, 163; Nosier v. Hunt, 18 Iowa, 213; 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, 33 Kans. 393; Sunderland v. Bell. 39 Kans. 21, 663. Lewis v, 
 Norton, 5 T. B. Mon. (Ky.) 1; RawUns v. Timberlake, 6 T. B. Mon. (Ky.) 325 
 Miller v. Long, 3 A. K. Marsh, (Ky.) 334; Gale v. Conn, 3 .1. J. Marsh. (Ky.) 538 
 Simpson v. Hawkins, 1 Dana (Ky.), 308; Taylor v. Lyon. 3 Dana (Ky.), 276 
 Casey v. Lucas, 3 Bush (Ky.), 55; Trumbo v. Lockridgo, 4 Bush (Ky.), 416: 
 Butte V. Riffe, 78 Ky. 353; Bellfont Iron Wks. v. McGuire, (Ky.) 11 S. 
 W. Rep. 203. In Pryse v. JIcGuire, 81 Ky. 608, it was held 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 from the premises. Ante, p. 345. 
 If the purchaser take a deed with general warranty from the husband, he will be 
 deemed to have relied on the warranty, and cannot enjoin the collection of the 
 purchase money unless he be evicted by the doweress. Booker v. Meriweather, 4 
 Litt. (Ky.) 213. A restriction in a prior deed by which a subsequent grantee is 
 
 ' 1 Sudg. Vend. (8tli Am, ed.) 383 (251); 3 id. 193 (549). 
 
424 MARKETABLE TITLE TO EEAL 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.' But so long as 
 there has been no such breach of the covenant of warranty, or for 
 
 prevented 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. 473. In Louisiana, owing to the prevalence of the 
 civil law, which disregards the rule caveat eiiiyitnr, the distinction between exe- 
 cuted and executory contracts with respect to the detention of the purchase 
 money on failure of the title, is not observed. A perfect outstanding title in a 
 stranger is 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 
 laud 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 hira. Oakey v. Drummond, 
 7 La. Ann. 305 To the text: Wentworth v. Goodwin, 31 Me. 150, semble; Jenness 
 V. Parker, 24 :\Ie. 389, semble. Timins v. Shannon, 19 ild. 396, 316; 81 Am. Dec. 
 632. In Middlekauff v. Barrick, 4 Gill (Md.), 200, it was broadly stated that if 
 there was no friiud the purchaser had no remedy e.\cept upon his covenants, 
 although he had been evicted by an adverse claimant. It does not appear, how- 
 ever, that this language was intended to restrict the covenantee's right to avail 
 him.self of a breach of covenant by way of recoupment. To the text: 
 Lothrop V. Snell, 11 Gush. (:\[ass,) 4.58; Bartlctt v. Tarbell, 13 Allen (Mass.), 
 135: Knappv. Lee, 3 Pick. (Mass.) 459; Rice v. Goddard, U Pick. (Mass) 293. 
 Haldane v. Sweet, 55 Mich. 196; 30 N. W. Rep. 902; Pfirrman v. Wattles, 
 (Mich.) 49 N. \V. Rep. 40; Leal v. Terbush, 53 Mich. 100; 17 N. W. Rep. 
 713, semble. 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 consideration had not failed. To the text: 
 Anderson v. Lincoln, 5 How. CMiss.) 279; Coleman v. Rowe, 5 How. (Miss.) 460; 
 37 Am. Dec. 164. The contract was executory in tliis 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. Gilbert, 7 Sm. & M. (Miss.) 456; Hoy v. Taliaferro, 8 Sm. & 
 M. (Miss.) 737; JleDonald v. Green, 9 Sm. & M. (Miss.) 138, semble; Duncan v. 
 Lane, 8 Sm. ct :\r. (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; Jolmaor v. Jones, 13 Sm. & i\I. (Miss.) 580; Wailcs v. Cooper, 
 34 Miss. 232; Harris v. Rowan, 24 Miss. 504; Winstcad v. Davis, 40 Miss. 785; 
 Ware v. Houghton, 41 Miss. 382; 98 Am. Dec. 358, 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 J[o. 647; Connor v. Eddy, 2o Mo. 75; 
 Wellman v. Dismukes, 43 Mo. 101; Eddington v. Nix, 49 Mo. 134; Wheeler v. 
 Standley, 40 Mo. 509; Mitchell v. McMuUen, 59 Mo. 252; Hart v. Railroad Co., 
 
 ' Ante, cases cited n. 3, p. 43] . 
 
DETENTION OF PCKCIIASE MONEY BKEACH OF COVENANT. 425 
 
 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 tliis rule is relaxed where suit is 
 
 65 Mo. 509; Key v. .Jennings, 66 Mo. 356; Hunt v. Marsh, 80 Mo. 398. A pur- 
 chaser 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 JIo. 296. To the text: Mills v. Saunders, 4 Neb. 190. 
 Perkins v. Bamford, 3 N. H. 533; Getchell v. Chase, 37 N. H. 106; Drew v. 
 Towle, 7 Fost. (N. H.) 413; .54 Am. Dec. 309, where the rule stated in the text 
 was held to apply only where there has been a total failure of the consideration. 
 To the text; Beach v. Waddell, 4 Halst. Ch. (N. J.) 399. In Cooper v. 
 Bloodgood, 33 N. J. Eq. 309, it was held that the necessity of obtaining 
 a lease of riparian rights from the State could not be held an eviction entit- 
 ling the covenantee to detain the purchase money where he might have 
 obtained the land itself by appropriation. To the text; Bumpuss v. Platncr, 
 1 Johns. Ch. (N. Y.) 213; Abbott v. Allen. 3 .Tohns. Ch. (N. Y.) 519; 7 
 Am. Dec. 554; Woodruff v. Bunce, 9 Paige Ch. (N, Y.) 443; 38 Am. Dec. 559; 
 Miller v. Avery, 3 Barb. Ch. (X. Y, ) .")94; 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, 35 AYend. (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, 3 Eeyes (N. Y.), 
 9; Ryerson v. Willis, 81 N. Y. 277; GifEord v. Society, 104 N. Y. 139; 
 10 N. E. Rep. 39; Dunning v. Leavitt, 85 N. Y 30; 39 Am. Rep. 617; 
 Clanton v. Burges, 3 Dev. Eq. (N. C.) 13; Wilkins v. Hoguo, 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, 13 Ohio, 73; Edwards v. Nor- 
 ris, 1 Ohio, 534; Hill v. Butler, 6 Ohio, 316. Under the same statute the pur- 
 chaser might have deducted from the purchase money by way of counterclaim 
 the amount of an incumbrance on the premises discharged by him. Craig v. 
 Heis, 30 Ohio St. 550. For the construction of this statute see Templeton v. 
 Kramer, 24 Ohio St. 554. In Purcell v. Heerny, 38 Ohio St. 39, it was held that, 
 independent of such statutory provision, the purchaser must show an eviction 
 before lie can claim relief against payment of the purchase money. To the text: 
 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 
 54 
 
426 MAEKETABLE TITLE TO REAL ESTATE. 
 
 threatened or prosecuted by tlie 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, ^vill prove an unavailing ]-emedy.' 
 
 An illustration of the rule stated in the foregoing proposition is 
 afforded by the early and leading case of Abbott v. AUen.^ There 
 
 the purchase money, was given the effect of a covenant of warranty, and the pur- 
 chaser 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 mort- 
 gage the defendant may set oS 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. To the text: Elliott v. Thompson, 4 Humph. 
 (Tenn.) 99; 40 Am. Dec. 630; Young v. Butler, 1 Head (Tenn.), 640, the court say- 
 ing: " 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 tlie 
 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 v. Wal- 
 ker, 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 couLl 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 weie barred by the Statute of Limitations. For the Texas doctrine relat- 
 ing to detention of the purchase money, see post, | 189. To the text: Dix v. 
 School Dist. , 23 Vt. 309, semUe. As to the rule governing the right of the 
 purchaser to detain the purchase money, as enforced in Virginia, where the title 
 is found to be bad, after the acceptance of a conveyance, see post, § 337. To 
 the text: Horton v. Arnold, 18 Wis. 212; Eaton v. Tallmadge, 22 Wis. 536; Smith 
 V. Hughes, 50 Wis. 620; 7 N. W. Rep. 653; Bardeen v. JIarkstrum, 64 Wis. 613; 
 25 K 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 
 ehjoined by the adjacent proprietors, was held a breach of the covenant of war- 
 ranty entitling him to detain the purchase money. 
 
 ' Post, chs. 26 and 34. 
 
 « 2 Johns. Ch. (N. Y.) 519; 7 Am. Dec. 554. 
 
DETENTION OF PURCHASE MONEY — BEEACH OF COVENANT. 427 
 
 the purchaser entered under a conveyance with covenants of seisin 
 and general warrant}', and executed a mortgage to secure the deferred 
 payments of the purchase money. When the mortgage was ahoot 
 to he 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 he permitted on 
 suggestion of a defect or failure of title, and on the principle of 
 quia timet, to stop the payment of the purchase money, and of all 
 proceedings at law to recover it." 
 
 Of course if the deed contain an express provision that the pur- 
 chase money may be detained or abated if adverse claims or incum- 
 brances should be asserted against the property, the rule restricting 
 the purchaser to his covenants in case the title fails does not apply. 
 The purchaser is at liberty to protect himself by special covenants 
 or agreements ; ' and these it is apprehended will prevail over the 
 tisual and formal covenants for title contained in the deed, if incon- 
 sistent with them. 
 
 , An important exception to the general rule that a purchaser who 
 has received a deed with covenants of general warranty cannot 
 
 ' Piatt 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 covenanted to be paid, upon the 
 destruction of the buildings, where the parties have not themselves provided 
 against it.'' In "Walter v. Johnson, 3 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.) 872, where the deed contained a similar 
 stipulation, it was held that the covenantee might avail himself of the defense 
 of failure of the title, though he had conveyed away his interest in the premises 
 to a stranger. 
 
428 MAEKETABLE TITLE TO EEAL ESTATE. 
 
 detain the purchase money xinless he has been evicted, exists where 
 the deed conveys an unknown, uncertain and undetermined interest 
 in the land, and the grantee has never been let into possession. 
 Thus where the grantor conveyed all of his " right, title and interest 
 in and to a certain undivided tract of land," with general war- 
 ranty, 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.* 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 aifected by the fact that the land was conveyed by the 
 defendant's direction to a third party, and the warranty made to 
 lum.^ If the purchaser agrees to take his title from a third person 
 who has nothing to do with the bargain, and accepts from that per- 
 son a conveyance with covenants for title, he must look to those 
 covenants for redress if the title fails, and cannot on that ground 
 defend au action by the vendor to recover the purchase money.' 
 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.* 
 
 The purchase money cannot be detained in a case in which the 
 covenantee has executed a release of the warranty to his grantor.^ 
 
 § 181. MERGER or 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 
 
 ' Lewis V, "West, 23 ^lo. App. 495, the court saying that "to such a case would 
 seem to apply the principle on which is based the rule that the covenants 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. Tillotson v. Grapes, 4 N. H. 444, 
 449. 
 
 » White V. Furtzwangler, 81 Ga. 66; 6 S. E. Rep. 692. 
 
DETENTION OF PUECHASE MONEY BEEACII OF COVENANT. 429 
 
 written, that are inconsistent with them.* 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 accepted. 
 ISToi' 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 contract.^ Collateral 
 
 ' Rawle Govts. (5th ed.) § 320. Mill&r v. Avery, 2 Barb. Ch. (N. Y.) 582, 
 where it w.as 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. 383. 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 mortgage pay- 
 able 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, 
 13 Pa. Co. Ct. Rep. 399. In Beard v. Dalaney, 35 Iowa, 16, the vendor conveyed 
 the premises with general warranty, and also executed a title bond 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 showing an eviction, but that the same rule did not 
 apply in the action on the title bond. A bond for title is merged in a convey- 
 ance 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 is recovered from him under a paramount title, is not merged in a subse- 
 quent conveyance of the land with warranty. Cox v. Henry, 32 Pa. St. 18. 
 
 ' In Remington v. Palmer, 63 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 purchaser 
 accepted a conveyance. Afterwards, in an action by the purchaser to recover 
 the amount of the assessment from the vendor, the latter set up the defense that 
 his agreement to pay the assessment was merged in the conveyance and that 
 plaintiff could not recover. The defense was adjudged insufBcient, 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 agree- 
 ments may be merged in the deed when executed it by no means follows, that 
 before the contract is fulfilled by a delivery 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 assessment 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 
 
430 MAEKETABLE TITLE TO KEAL ESTATE. 
 
 stipiilation of which the conveyance is not necessarily a perform- 
 ance, 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 witli covenants 
 of warranty.^ 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 agreement.^ A cove- 
 nant to put the vendee in possession is not merged in a subsequent 
 conveyance with warranty.^ And a contract which expressly pro- 
 vides that its restrictions and stipulations shall be compilied with 
 and carried out as if embodied in the deed, will not be held to have 
 been merged therein.* 
 
 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.^ 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. ^ 
 
 § 182. EFFECT-OF PURCHASE WITH KNOWLEDGE OF DEFECT 
 OR INCUMBRANCE. If a man purchase land knowing that the 
 title is bad or the land is incumbered, that fact, as has been seen, 
 
 deed was executed and before delivery there could be no merger of this agree- 
 ment in the deed." Citing Murdock v. Gilchrist, 52 K. Y. 243. 
 
 ' Reed v. Sycks, 27 Ohio St. 285. Disbrow v. Harris, 123 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, 80 N. Y. 41; Whitbeck v. Waine, 16 N. Y. 
 533; Bennett v. Abrams, 41 Barb. (N. Y.) 619; Murdock v. Gilchrist, 53 N. Y. 
 343, Dillingham v. Estill, 3 Dana (Ky.), 31. 
 
 * Cavanaugh v. Casselman, 88 Cal. 543; 26 Pac. Rep. 515, where the convey- 
 ance embraced only a part of the purchased premises. 
 
 ^ German Am. Real Est. Co. v. Starke, 84 Hun (N. Y.), 480; 33 N. Y. Supp. 
 403. Williams v. Frybarger, 9 Ind. App. 558. 
 
 ^Newbold v. Peabody Heights Co., 70 Md. 499; 17 Atl. Rep. 372. 
 
 'Bennett v. Abrams, 41 Barb. (N. Y.") 619. 635. 
 
 « Post, §§ 370, 376. 
 
DETENTION OF PURCHASE MONEY BREACH OF COVENANT. 431 
 
 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.' But whether in such a case upon a breach of those 
 covenants he will be suffered to detain the purchase money is a 
 question upon \vhich 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,^ except 
 in those cases in which the vendor, after the deed had been exe- 
 cuted, but before it had been delivered and accepted expressly 
 agreed to remove the incumbrances. Such a promise, it will be 
 remembered, has been hold not to be merged in the subsequent 
 conveyance.^ There are cases wliieh affirm the right of the pur- 
 chaser to detain the purchase money, notwithstanding his acceptance 
 of a conveyance with notice of the incumbrance,* and it cannot be 
 denied that there would be much hardship in denying him that 
 
 1 Ante, p. 287. Wadhams v. Swan, 109 111. 46. 
 
 'Wallea v. Cooper, 34 Miss. 208; Gartman v. Jones, 24 Misa. 3B4; Stone v. 
 Buckner, 12 Sm. & M. (Miss.) 73, oUter. Cnmmlns 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, 3 Wh. (U. S.) 17, the 
 court said: "Acquainted with the extent of the incumbrance and its probable con- 
 sequences, 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 incum- 
 brance can certainly furnish no legal objection." Pir Maksh.4.ll, 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 cove- 
 nants in the deed. This decision was rested largely upon the ground that the 
 grantee had purchased with notice of the defective title. 
 
 2 Remington v. Palmer, 62 N. Y. 31. Ante, p. 439. 
 
 *Jaques v. Lsler, 4 N. J. Eq. 461. citing Tourville v. Nash, 3 P. Wms. 306. 
 Johnson v. Gere, 3 Johns. Ch. (N. Y.) 546. Shannon v. Marselis, Saxt. (N. J.) 
 425; Van Waggoner v. McEwcn, 1 Gr. (3 N. J. Eq.) 412. These authorities, 
 however, go but little further than the general ' proposition that knowledge of 
 the defect or incumbrance at the time of the purchase does not affect the pur- 
 chaser's right to recover on the covenants. 
 
432 MAEKBTABLE TITLE TO REAL ESTATE. 
 
 right where the vendor had in the first instance agreed to extinguish 
 the incnmbrance, but had neglected or refused to do it.' 
 
 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 pubhc registers has no applica- 
 tion as between vendor and purchaser.^ 
 
 § 183. RECOTJPMENT. At common law, a total failure of con- 
 sideration could always be pleaded in bar to an action on a contract, 
 but if the failure of the consideration was only partial, the defend- 
 ant 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 received any such benefit, no matter how small, the plea 
 of failure of consideration could not be sustained, and the defendant 
 was forced to his separate action.-" If the contract was for the sale 
 or lease of lands, there could be no total failure of the consideration 
 if the purchaser was put in possession * and enjoyed the estate with- 
 out liability to a stranger for the rents and profits,'' 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 ATnerican States,^ the defendant in any 
 action on a contract is allowed to file a sjjecial plea, setting up as a 
 
 ' In Stelzer v. La Rose, 79 Ind. 435, it was held that a purchaser under the cir- 
 cumstances stated in the text could not detain the purchase money so long as he 
 had suffered no loss or injury on account of the incumbrance. 
 
 ■' Shannon v. Jlarselis, Saxt. (N. J.) 413, 426. Ante, § 104. 
 
 ^ Chitty Cont. (10th Am. ed.) Slfi. An exception exists in the case of a breach 
 of warranty of chattels where the defendant returned the goods. Id. 491. 
 
 *Moggridge v. Jones, 3 Camp. 88. 
 
 ' 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 sucli failure in the consid- 
 eration 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 
 
DETENTION OF PURCHASE MONEY BREACH OF COVENANT. 433 
 
 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 ho has been evicted from the premises and has a present 
 right to recover damages on the covenants of his grantor, is allowed 
 to set up those facts in recoupment of the plaintiff's demand, even 
 though he may have had possession of the premises, and conse- 
 quently may have received some benefit from the contract.' 
 
 matter arising under the contract existing before its execution, or any such mis- 
 take therein, or in the execution thereof, or any such other matter as would 
 entitle him to such relief in equity." The object of this statute was to abolish 
 the common-law rule that the defendant could not in effect have at law a rescis- 
 sion 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 believed, 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 out- 
 standing incumbrance by a purchaser of land having a covenant against incum- 
 brances was held to be within this rule. Cole v. Justice, 8 Ala. 793. A subse- 
 quent 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-oflE. Holley 
 V. Younge, 27 Ala. 203. So, also, a breach of warranty arising from a deficiency 
 in the quantity of land sold. Bell v. Thompson, 34 Ala. 633; Nelms v. Prewitt, 
 87 Ala. 389. So, also, a cross-demand growing out of a defect in the vendor's 
 title is available as a set-oflE in an action on the notes for the purchase money, 
 although the purchaser is in possession. Martin v. Wharton, 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 counterclaim must be one " existing in favor 
 of a defendant and against a plaintiff, between whom several judgments might 
 be had in the action," a sub-purchaser, against whom no personal judgment is 
 asked, cannot defend, by way of counterclaim, 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 plaintiff's grant. In other words, the counterclaim could be 
 availed of only by the original purchaser. Nat. Fire Ins. Co. v. McKay, 21 N. 
 Y. 191. 
 
 ' 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 compulsion, to 
 55 
 
434 MABKETABLE TITLE TO EEAL ESTATE. 
 
 " Kecoupment 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 plaintiff's cause 
 of action."' Tlie defense of set-off did not exist at common law, 
 but a right to reduce or defeat the plaintiff's demand on account of 
 some matter connected therewith was conceded to the defendant.' 
 Thus, in an action for work done, the defendant might deduct from 
 the damages the value of material supplied by him f and, in an 
 action to recover money for dyeing goods, the defendant was per- 
 mitted to show a custom which allowed him to deduct from the 
 price of the work the amount of damage done to the goods while 
 being dyed.* The extension of this principle, so as to allow the 
 defendant in an actio:i on a contract to set up as a defense unliqui- 
 dated damages resulting from the plaintiff's non-performance of the 
 contract, has produced the modern doctrine of recoupment.^ That 
 
 secure the benefit of their covenants of title and possession, have those covenants 
 failed as a consideration; and that failure being perfected before the pajrment 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 relation 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 unliquidated damages founded on a tort or breach 
 of covenant on the part of the plaintiff." Rev. St. Tex. 649. Howard v. Ran- 
 dolph, 73 Tex. 454. It may be doubted whether this statute would exclude the 
 defense of recoupment. The statute seems to be directed against demands dis- 
 connected with the contract. 
 
 ' Black Law Diet. nom. Recoupment. 
 
 = Chitty Cont. (10th Am. ed.) 946, 948. 
 
 ^Newton v. Foster, 13 M. & W. 772, 
 
 ^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 if there has been an eviction to which the covenants of the 
 grantee extend, he may recoup the damages thence sustained in an action for 
 the purchase money. Rawle Govts, for Title (5th ed.), § 326. Consequently the 
 reason given by Mr. Waterman for the rule as stated by him is somewhat unsat- 
 isfactory. He says: "The reason is that the bond and mortgage for the pay- 
 
DETENTION OF PURCHASE MONET BREACH OF COVENANT. 435 
 
 defense is permitted for the purpose of avoiding circuity of action ; 
 and, after all, the true test of its availability is not so much wliether 
 there has or has not been a mere partial failure of the consideration, 
 as whether the defendant has a present right to recover substantial 
 damages from the plaintiff for breach of covenant ; for, if he have 
 such right, it would be not only unjust but contrary to public policy 
 to compel him to pay over money which he could immediately 
 recover from the payee.' 
 
 § 184. RECOUPMENT IN FOBECLOSTJRE SUIT. The defense of 
 set-off, recoupment or counterclaim may be as freely made in an 
 action to foreclose a purchase-money mortgage as elsewhere.^ But 
 if no personal decree or judgment against the defendant, in case of 
 a deficiency, is sought, the defense of recoupinent for damages occa- 
 sioned by a failure of the title will, as a general rule, be rejected, 
 for the reason that such a "proceeding is essentially in rem • that the 
 vendor is only seeking to reach what he had sold, and that it is 
 immaterial to the purchaser whether the title in such a case be good 
 or bad.^ The defense of set-off or counterclaim obviously stands on 
 
 ment of the purchase money, and the covenant of warranty from the grantor, are 
 separate and independent covenants and the breach of one cannot he 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 
 had not been disturbed, 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. 
 
 2 2 Jones Mort. (3d ed.) §§ 1496, et seg. 
 
 3 Jones V. Fulghum, 3 Tenn. Ch. 193; Cohen v. Woolard, 2 Tenn. Ch. 686; 
 Hurley v. Coleman, 3 Head (Tenn.), 265, which was a suit to enforce a vendor's 
 lien; Curd v. Davis, 1 Heisk. (Tenn.) 574. See, also, Rawle Covts. (5th ed.) 
 I 351. Hubbard v. Chappel, 14 Ind. 601; Rogers v. Place, 29 Ind. 577; Jackson 
 v. Fosbender, 45 Ind. 305. 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 0. E. Green (N. J.), 230. In the following New York cases, 
 the court refused to stay the enforcement of purchase -money mortgages upon 
 
 ■ the mere ground that the title was defective: Piatt v. Gilchrist, 3 Sandf. Ch. (N. 
 Y.)118; Griffith V. Keuipshall, 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, 
 
436 MAEKETABLE TITLE TO KEAL ESTATE. 
 
 different grounds.^ But if the conveyance under which the defend- 
 ant held contained covenants for title, and there had been such a 
 breach of them as to give him a present right to recover damages 
 against the plaintiff, he may avail himself of that defense by way 
 of recoupment,^ even thougli, it would seem, no personal judgment 
 is sought against him.^ If there be a prior incumbrance on the 
 
 30 N. Y. 105; Parkinson v. Sherman, 74 N. T. 88; 30 Am. Rep. 268; Ryerson v. 
 Willis, 81 N. Y. 377; GifEord v. Society, 104 N. Y. 139; 10 N. E. Rep. 39; Soule 
 V. Dixon, 1 N. Y. Supp. 697. Beebe v. Swartwout, 3 Gilm. (111.) 177, where it 
 was said: "It will be observed that S. (the vendor) does not seek to collect the 
 purchase money in this case; he simply 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 
 ho holds a mortgage. In this view of the case, th? 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 pur- 
 chase 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 immi- 
 nent danger of eviction from the premises, and that he would be liable over to 
 the real owner for the mesne profits, there would be little to gain by resisting 
 the foreclosure of 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 di£ereut 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. 
 
 ' In Hooper V. Armstrong, 69 Ala. 343, it was held that a suit to foreclose a 
 vendor's equitable Hen 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, 33 N. J. Eq. 235. 
 
 ^2 Jones Mort. (3d ed.) § 1500, and cases cited, ante, p. 421. 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, thougli 
 there might be a personal decree against him for a deficiency. Edwards v. 
 Bodine, 26 Wend. (N. Y.) 109; Leggett v. McCarty, 8 Edw. (N. Y.) 124. 
 
 ' For example, if the defendant, the mortgagor, had been compelled to buy in 
 adverse claims to protect his title, it would be clearly inequitable to deprive him 
 of his right to recoup the damages so incurred, merely because the plaintiff asked 
 no personal judgment against him. Therefore, where, in a proceeding in equity 
 to enforce a purchase-money lien, in which it appeared that the vendor had 
 expended moneys in getting in the title of an adverse claimant of part of the 
 land, it was held error to enter a decree for the plaintiff, without directing a ref- 
 erence to a master to ascertain whether such adverse title was paramount or not. 
 
DETENTION OF PUECHASB MONET — BEEAOH OF COVENANT. 437 
 
 premises, it seems to be generally conceded that the purchase money 
 may be detained until the covenantor removes the incumbrance, or 
 reduces it to a sum not exceeding tlie unpaid purchase money.^ 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.^ 
 Another 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 
 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.* 
 
 There ai-e 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.* If the purchaser has paid a part of the purchase money, or 
 has expended money in improving the premises, so as to entitle him 
 
 and whether the purchaser was entitled to an abatement. Smith t. Parsons, 33 
 W. Va. 644; 11 S. E. Rep. 68. 
 
 ' Post, §§ 332, 335. Buell v. Tate, 7 BI. (Ind.) 55. Smith v. Fiting, 37 
 Mich. 148, semble. Hughes v. McNider, 90 N. C. 348. 
 
 iiJonesMort. § 1-504. Whisler v. Hicks, 5 Bl. (Ind.) 100; 33 Am. Dec. 454; 
 Smith V. Ackerman, 5 Bl. (Ind.) 541; Oldfield v. Stevenson, 1 Ind. 153; Small v. 
 Reeves, 14 Ind. 164. Potwin v. Blasher, 9 "Wash. 460; 87 Pac. Rep. 710. 
 
 'Bigelow on Estoppel (3d ed.), 437, citing, among other cases, Strong v. Wad- 
 dell, 56 Ala. 471, and Wallison v. Watkins, 3 Peters (U. S.), 43, 53. In the last 
 case the mortgage does not appear to have been given to secure purchase money. 
 
 * Banks v. Walker, 3 Sandf. Ch. (N. Y.) 344; Davison v. De Freest, 3 Sandf. 
 Ch. (N. y.) 456. 
 
438 MAEKETABLE TITLE TO EEAL ESTATE. 
 
 to an equitable lien thereon, there are cases which hold that these 
 facts may he availed of by him in a suit to foreclose the mortgage.* 
 
 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.^ 
 
 § 185. PARTIAL FAILURE OF THE CONSIDERATION. The 
 consideration which passes from the grantor to the grantee upon a 
 conveyance of lands with unlimited covenants for title is, according 
 to the better opinion, not the mere covenants for title which the 
 conveyance contains, but the transfer of an indefeasible estate, so 
 that if the purchaser be evicted from the premises by one claiming 
 
 ' Rockwell V. Wells, (Mich.) 63 N. W. Kep. 165. Dayton v. Melick, 33 N. J. 
 Eq. 570. DeKay v. Bliss, (N. Y.) 34 N. E. Rep. 300. Jones Mortg. (4th ed.) 
 1490. 
 
 ' Post, g 337. Peers v. Barnett, 13 Grat. (Va.) 415, where it was said by the 
 court: "A distinction seems to have been taken by some of the reported cases as 
 to the relief a court of equity will extend to a vendee who has accepted his deed 
 with covenants of general warranty, where he seeks to enjoin a judgment for, 
 or the collection of, the purchase money, and the case where the vendor, instead 
 of proceeding against the vendee personally, is attempting to sell the land under 
 a deed of trust or by bill in equity; that although the facts may not authorize 
 the court to enjoin the collection of the purchase money by a proceeding against 
 the vendee at law, yet as a court of equity reprobates a sale of land when clouds 
 are hanging over the title, it will, for the benefit of the parties and the security 
 of the purchaser at any sale of the subject enjoin or refuse to decree a sale of 
 the land until the title is cleared up. The case of Beale v. Seively, 8 Leigh 
 (Va.), 658, is a case of the first class. It was there decided that where a vendee 
 is in possession of land under a conveyance with general warranty, and the title 
 has not been questioned by any suit prosecuted or threatened, such vendee has 
 no claim to relief in equity against the payment of the purchase money unless 
 he can show a defect of title respecting which the vendor was guiltj' of fraudu- 
 lent concealment or misrepresentation, and which the vendee had at the time no 
 means of discovering. In Ralston v. Miller, 3 Rand. (Va.) 44; 1-5 Am. Dec. 704; 
 Koger V. Kane, 5 Leigh (Va.), 606; Clarke v. Hardgrove, 7 Grat. (Va.) 899, 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.) 73; Miller v. Argyle, 5 Leigh (Va.), 460." 
 
DETENTION OF PDECHA8E MONEY — BEEACH OF COVENANT. 439 
 
 under a paramount title, tliere is a clear failure of the consideration/ 
 though, it seeins according to common law, not an entire failure, 
 possession once had under the contract being a partial enjoyment of 
 the consideration unless the grantee was liable for the rents and 
 profits. Tlie modern doctrine, however, at least, so far as it is 
 exemplified by the American decisions, is that an eviction from the 
 premises by an adverse claimant produces a total failure of the con- 
 sideration. One of the principal reasons for the rule that the cove- 
 nantee cannot detain the purchase money so long as he is in posses- 
 sion of the premises is, that until he is actually or constructively 
 evicted there is only a partial failure of the consideration of liis 
 promise to pay.^ 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.' Hence, it follows that there may be only a j)artial failure 
 of the consideration in a case in which the title has entirely failed.* 
 Partial failtire of title is sometimes spoken of in the cases ; 
 apparently in the sense of partial failure of the consideration ; '" 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 tlie right of the cove- 
 
 1 Rawle Govt. (5th ed.) § 337. Cook v. Mix, 11 Conn. 432. Knapp v. Lee, 3 
 Pick. (Mass.) 459; Rice v. Goddard, 14 Pick. (Mass.) 293; Trask v. Vinson, 20 
 Pick. (Mass.) 110. Tillotson v. Grapes, 4 N. H. 448. Deal v. Dodge, 26 111. 458; 
 Tyler v. Young, 2 Scam. (111.) 445; 35 Am. Dec. 116; Thompson v. Shoemaker, 
 68 111. 256. Dunning v. Leavitt, 85 N. Y. 34; 39 Am. Eep. 617. A contrary 
 Yiew 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 inconsistent with the later cases cited above. 
 
 ° There can never be a total failure of the consideration of a conveyance with 
 covenant of warranty, until the covenantee has been actually or constructively 
 evicted. Key v. Hanson, 17 Ark. 254; McDaniel v. Grace, 15 Ark. 487. Contra, 
 Cook V. Mix, 11 Conn. 437 
 
 3 Whitney v. Lewis, 21 Wend. (N. Y. 131. Patton v. England, 15 Ala. 69; 
 Stark V. Hill, 6 Ala. 785. 
 
 * Thus it has been held that if the estate transferred turn out to be a life inter- 
 est 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, 134 Mass. 395. Greenleaf v. Cook, 3 Wh. (U. S.) 13. 
 
 » As in Bowley v. Holway, 124 Mass. 396. 
 
440 MAEKETABLE TITLE TO EEAL ESTATE 
 
 nantee to resist the payment of the purchase money while he is in 
 the undisturbed possession of the i^remiscs is denied upon the ground 
 that there has been no more than a jDartial faihire of the considera- 
 tion, though there has been a complete and palpable failure of the 
 title.i 
 
 In other cases, however, the doctrine that a partial failure of the 
 consideration cannot be availed of by the defendant in an action for 
 the pTirchase money of land, has been denied," and in a few cases a 
 total failure of the title lias been treated as a total failure of the 
 consideration, without regard to the question of eviction.^ 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 covenants 
 ai-e of warranty or for quiet enjoyment, or has suffered actual 
 damages from an incumbrance on the premises, wliere the covenant 
 
 ' 3 Kent. Com. (13th ed.) 473; 3 Sedg. Dam. (8th ed.) § 1088; Waterman Set-OfC 
 (3d ed.), § 560; Rawle Govts. (5th ed.) § 330, ct seq. Mo.£rgridge v. Jones, 3 
 Camp. 38; 14 East, 486. Greenleaf v. Cook, 3 Wh. (U. S.) 13; Scudder v. 
 Andrews, 3 McL. (U. S.) 464, and analogous cases there cited. Freeligh v. Piatt, 
 
 5 Cow. (N. y.) 494; Whitney v. Lewis, 31 Wend. (N. Y.) 131; Tallmadge v. 
 Wallis, 35 Wend. (N. Y.) 113; Lamerson v. Marvin, 8 Barb. (N. Y.)ll; Farn- 
 ham V. Hotckiss, 3 Keyes (N. Y.), 9; Tibbetts v. Ayer, Lai. Supp. (N. Y.) 176; 
 Parkinson v. Sherman, 74 jST. Y. 88; 30 Am. Rep. 368; Ryerson v. Willis, 81 N. 
 Y. 377. Bowley v. Holway, 124 Mass. 395. Glenn v. Thistle, 33 Miss. 43. 
 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 warranty, 
 or where the consideration is divisible or capable of apportionment, a partial 
 failure may sometimes be given in evidence in reduction of damages; 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 seeking 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 proposi- 
 tions contained in the remarks of the court would be, as respects the covenant of 
 warranty, contradictory and inconsistent; for unless the purchaser had been 
 evicted from the premises in whole or in part there could be no " affirmative 
 right of action " against the covenantor. 
 
 •^Frisbie v. Hoffnagle, 11 Johns. (N. Y.) 50. James v. Lawreuceburgh Ins. Co., 
 
 6 Bl. (Ind.) 535. Cook v. Mix, 11 Conn. 438; Moon v. Ellsworth, 3 Conn. 483. 
 
 'Frisbio v. Hoffnagle, 11 Johns. (N. Y.) 50. Cook v. Mix, 11 Conn. 438. 
 
DETENTION OF PURCHASE MONEY — BREACH OF COVENANT. 441 
 
 IS against iiicuiubrances, there can be no right to recover substantial 
 damages as for a breacli 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 incumbrance 
 or a paramount title, there can be no doubt of the covenantee's 
 right, according to the rule prevailing in America, to recoup the 
 damages thus sustained, in an action for the purchase money .^ 
 
 In New York a partial failure of the consideration of an agree- 
 ment to pay tlie 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.^ But if the con- 
 sideration lias totally failed, that is, if the covenantee has been 
 evicted from the whole premises, that fact may be pleaded in bar to 
 an action for the purchase money .^ 
 
 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.^ These decisions do not appear to have been followed in 
 the other States. 
 
 § 186. ASSUMPSIT TO THY TITLE. An objection to the admis- 
 sion of the defense of complete failure of the title in an action for 
 the purchase money, where tlie 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.' This is undoubtedly tnie 
 where the plaintiff asserts a title paramount to that of the defend- 
 ant, e. g., where he seeks to recover the rents and profits of the land 
 
 ' McHenry v. Yokum, 27 111. 160. 
 
 2 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, 35 Wend. (N. Y.) 116. 
 
 ^ Wheat v. Dotson, 13 Ark, 699; McDanlel v. Grace, 15 Ark. 487; Key v. Han- 
 son, 17 Ark. 254. 
 
 .' Leal V. Terbush, 53 Mich. 100; 17 N. W. Rep. 713. Dennis v. Heath, 11 Sm. 
 & M. (Miss.) 206; 49 Am. Dec. 51 
 56 
 
442 MARKETABLE TITLE TO REAL ESTATE 
 
 enjoyed by the defendant.' But this doctrine, in its application to 
 the defense of failure of title in an action to recover the purchase 
 monejr of lands, has been criticised, in that it assumes an eviction of 
 the defendant to be conclusive of the question of title, and of the 
 right to detain the pitrchase inoney.^ It is familiar law that the 
 defendant must show, either by the judgment of a court of record, 
 or by evidence alitmde, that the eviction was under a title paramount 
 to that of the covenantor. Hence, in the latter case, the court must 
 necessarily pass ujaon the title and the rights of strangers in deter- 
 mining 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 executed by a conveyance 
 with covenants for title, and if it were insuperable, would in any 
 and every case destroy the right of the purchaser to detain the pur- 
 chase 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. 
 
 > Marshall v. Hopkins, 15 East, 309; Newsome v. Graliam, 10 B. & C. 234. 
 Baker v. Howell, 6 S. & R. (Pa.) 481. Hogsett v. Ellis, 17 Mich. 351. Codman 
 V. Jenkins, 14 Mass. 93; Boston v. Binney, 11 Pick. (Mass.) 1. 
 
 'Rawle Govts, 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 had not been 
 established by a judgment of a court of record. Yet to give to such judgment a 
 conclusive effect w^ould be, when the vendor had not been vouched or notified, 
 contrary to well-established principle, and it is apprehended that in every such 
 case the purchaser would be bound to make out the advei-se 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 observations at p. 631, n., same volume. In Red- 
 ding 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 remit- 
 ting 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 abso- 
 lutely, then there is no consideration for the note, and the money recovered 
 thereon would have to be repaid when the facts were established in an action for 
 breach of covenant." 
 
DETENTION OF PUECHASE MONEY — BliEACH OF COVENANT. 443 
 
 § 187. WHAT CONSTITUTES EVICTION — PURCHASE OF OUT- 
 STANDING TITLE. The failure of title to real estate may be palpa- 
 ble 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 cove- 
 nants of warranty or for quiet enjoyment, no right to recover dam- 
 ages against the covenantee, and, consequently, no right to detain 
 the unpaid purchase mone}'. What constitutes a breach of those 
 covenants has been already considered,* and it only remains for the 
 sake of convenience, to consider here briefly the application of the 
 principles there discussed to the defense of failure of title in actions 
 to recover the purchase money. Among the most important 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 equiva- 
 lent of an eviction, as respects the right to detain the purchase 
 money le cannot be turned around to his action on the covenant 
 for indemnity.^ But unless the rights of the paramount claimant 
 have been fixed by judgment in a possessory action, recovered after 
 notice to the covenantor, so as to make the judgment conclusive 
 upon him, the covenantee will have the burden of establishing the 
 superiority of the title acquired by him from the adverse claimant.' 
 If there has been no eviction or disturbance of the covenantee in 
 his possession of the estate, and it does not appear that the adverse 
 claimant could in all probability have recovered the land, the cove- 
 nantee will not be reimbursed for the amount paid by him to get in 
 the alleged outstanding title.* The covenantee cannot, of course, 
 claim the benefit of the title so acquired, except as a set-off against 
 the purchase money to the amount paid by him to the adverse claim- 
 
 ' Ante, p. 336. Dower recovered against the covenantee constitutes a good 
 defense to an action for the purchase money. McHenry v. Yokum, 27 111. 160. 
 
 » Eawle Govts. (5th ed.) § 334; Dart Vend. (5th ed.) ch. 15, § 7. Ante, p. 353. 
 Brandt v. Poster, 5 Iowa, 387. Stelzer v. Rose, 79 Ind. 435. Denson v. Love, 58 
 Tex. 468. 
 
 3 Ante, p. 357. 
 
 'Ante, p. 356. Blair v. Perry, 7 J. J. Marsh. (Ky.) 153. 
 
444 MARKETABLE TITLE TO REAL ESTATE. 
 
 ant. He cannot set up such title adversely to that of his grantor.* 
 Nor can he escape the application of this rule by procuring a third 
 person to get in the outstanding title.^ The covenantee may also 
 surrender the possession to a paramount claimant, and set up that 
 fact as a defense to an action for the purchase money. He is not 
 bound to await an actual eviction by the real owner. But he will 
 have the burden of showing that the surrender was in good faith, 
 and that the title of the adverse claimant was one to which he must 
 have inevitably yielded.' 
 
 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.* 
 
 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 eviction 
 by an adverse claimant, under color of title, satisfies the rule. An 
 eviction, whether actual or constructive, entitles him to detain the 
 purchase money .^ In New York taxes assessed to the vendor but 
 laid by the board of supervisors after the purchaser buys and 
 
 ' 1 Sugd. Vend, (8th Am. ed.) 533 (355). Post, § 202. 
 
 ^Brodie v. Watkins, 31 Ark. 319; 34 Am. Rep. 49, where it was said that a cove- 
 nantee who procures a third person to buy in the premises at a sale under an out- 
 standing incumbrance, may avail himself of the amount so paid out, as a recoup- 
 ment in an action for the purchase money, but cannot set up the title so acquired 
 to defeat the recovery of the balance of the purchase money. 
 
 2 Ante, p. 348. Garvin v. Cohen, 13 Rich. L. (S. C.) 153. Drew v. Towle, 30 
 N. H. 531; 27 N. H. 413. 
 
 ■" Glenn v. Thistle, 1 Cush. (Miss.) 42. The following cases are cited to the same 
 proposition in Rawle Govt. (5th ed.) p. 573: McDaniel v. Grace, 15 Ark. 489. 
 Fisher v. Salmon, 1 Gal. 413; 54 Am. Dec. 297. Slack v. McLagan, 15 111. 243. 
 Dodd V. Toner, 3 Ind. 427. Bradt v. Foster, 5 Clark (Ic), 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, p. 343. Rawle Govts, for Title (5th ed.), § 133. 
 
DETENTION OP PUECHASE MONEY BEEACH OF COVENANT. 445 
 
 receives a conveyance, must be paid by tbe vendor. In otlier 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,' or detain the pur- 
 chase money to that extent. 
 
 We have seen that a covenant of warranty is broken only by an 
 eviction, actual or constructive. Nevertheless it has been held that 
 the covenantee cannot be compelled to pay the purchase money 
 while a suit against him by an adverse claimant to recover the 
 premises is still pending and undetermined.'^ 
 
 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.' 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 
 
 1 Rundell v. Lakey, 40 N. T. 517. See ante, p. 354. 
 
 2 Jaques v. Esler, 3 Gr. Ch. (N. J.) 465. See, post, oh. 26. 
 
 3 3 Warvelle Vend. 839; Rawle Govts. (5th ed.) § 298. Ante, p. 826. Young v. 
 Lofton, (Ky.) 12 S. W. Rep. 1061. Carter v. Beck, 40 Ala. 599. Compare Beach 
 Y. Waddell, 4 Halst. Ch. (N. J.) 308. In Koger v, Kane, reported in note to Long 
 V. Israel, 9 Leigh (Va.), 569, Cabei.i,, J. (dissenting), held that the covenantee 
 was entitled to detain the purchase money if any deficiency in the quantity of 
 the land existed, vphether arising from the fact that the boundaries did not con- 
 tain the stipulated quantity or that a portion of the land so contained was 
 embraced by the superior title of others. In Comegys v. Davidson, 154 Pa. St. 
 534; 36 Atl. Kep. 618, where the contract had been executed by a conveyance, 
 and it appeared that there was a deficiency io the width of the lot conveyed, the 
 court, without adverting to the presence or absence of covenants for title, held 
 that if the deficiency in the property conveyed was so serious that it might be 
 regarded as evidence of imposition or fraud, the rule was to allow such a reduc- 
 tion 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 
 purchase money. In Pennsylvania, however, there is no separate system of 
 equitable procedure. 
 
446 MARKETABLE TITLE TO EEAL ESTATE. 
 
 sale is hj 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 ease of a deficiency.^ 
 § 188. DISCHABGE 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.^ If the deed con- 
 
 ' Leonard v. Austin, 2 How, (Miss,) 888. 
 
 ' 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 consideration. 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 unliquidated damages. And, further, 
 in this, that in the second case there had been no breach of the covenant of war- 
 ranty, while in the first case the covenant had been broken and actual damages 
 incuiTed; and if the incumbrance had equalled the purchase money in amount 
 there would have been a total failure of the consideration. Where the incum- 
 brance 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 cove- 
 nantee 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 cer- 
 tain incumbrance by mortgage, which the defendant had to pay and discharge, 
 and thereby extinguish the incumbrance. To the extent then of this incum- 
 brance 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 pleadings, might have recotiped the amount 
 thus paid. Babcock v. Tria, 18 111. 420. There is a natural equity as to claims 
 arising out of the same transaction, that one claim should compensate the 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, 
 
DETENTION OF PTJECIIASE MONEY — BREACH OF COVENANT. 447 
 
 tains a covenant of warranty, but no covenant against incumbrances, 
 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 hj one claiming under paramount title. ^ The mere 
 existence of an incumbi'ance upon the premises, which is a breach 
 of the covenant against incumbrances, is no ground upon which to 
 detain the purchase money ; foi', 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.^ And as the 
 recoupment of the breach, when sued for the purchase money, is in 
 substance a cross-action by the purchaser on the covenant, it 
 devolves on him to show that he has discharged the incumbrance or 
 has been evicted by the incumbrancer. Hence, it has been held that 
 the mere existence of a right of dower in the premises, whether 
 inchoate or consummate, is no defense to an action for the purchase 
 money if the purchaser holds under a conveyance with covenant 
 
 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 Ms 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 con- 
 test 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. 
 
 ' Ante, p. 355. 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 pur- 
 chase money, show under the general issue a breach of the covenant against 
 incumbrances; 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 on which there is a 
 prior mortgage, remains in the undisturbed possession of the premises, and the 
 mortgage debt is unpaid and no suit has been brought to collect it, or foreclose 
 the mortgage or to evict the purchaser, it is no defense to a foreclosure suit 
 against him, to secure the purchase money, that such prior mortgage is an out- 
 standing incumbrance, unpaid and unsatisfied." Mills v. Saunders, 4 Neb. 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, 26 111. App. 490. 
 
448 MARKETABLE TITLE TO REAL ESTATE. 
 
 against incumbrances, and lias not been evicted by the dowress, nor 
 paid her a sum in gross in commutation of her dower right.^ An 
 apparent exception to the rule above exists in those cases in which 
 the incumbrance exceeds the purchase money, and the grantee is 
 allowed a temporary injunction until the vendor jsays the excess.^ 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, oi' to detain it 
 temporarily until an objection to the title is removed. The pur- 
 chaser may retain so much of the purchase money as may be suffi- 
 cient to secure him against j^ecuniary incumbrances on the land, 
 especially when the grantor is insolvent, and no adequate remedy 
 can be had upon his covenants.^ If a covenantee pays off an incum- 
 brance on the land he can have credit only for the actual amount 
 disbursed for that purpose. He cannot buy up the lien at a dis- 
 count and have the benefit of its face value against the grantor.^ If 
 the purchaser accept a deed from a third party instead of the vendor 
 he cannot recover from the latter moneys paid in removing 
 incumbrances.^ 
 
 The purchaser takes the risk of the validity of the incumbrance 
 which he discharges. The vendor may always show that he was 
 not bound to discharge the incumbrance, from some illegality in the 
 consideration, or other cause." 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.'' 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. 
 
 ' Whisler v. Hicks, •'5 Blackf. (Ind.) 100; 33 Am. Dec. 454; Smith v. Ackerman, 
 5 Blackf. (Ind.) 541. 
 «Post, §g 332, 835. 
 
 sBowen v. Ttirall, 28 Vt. 383, citing Tourville v. Naish, 3 P. Wms. 307. 
 4 McDowell V. Milroy, 69 111. 498. Ante, p. 308. 
 ^ Herryford v. Turner, 67 Mo. 296. 
 « Norton v. Jackson, 5 Cal. 262. 
 'Post, §332. 
 
DETENTION OF PUECHASE MONEY — BREACH OF COVENANT. 449 
 
 § 189. RULE IN TEXAS. In Texas a purchaser wlio has accepted 
 a conveyance with general warranty, may resist tlie payment of the 
 purchase money in case of a faihire of the title, though there has 
 been no eviction, but he is required to show that such failure con- 
 sists of an undisputable superior outstanding title under which he 
 is liable to be evicted,^ and that he accepted the conveyance in 
 ignorance of the defective title.^ He will be charged with notice 
 
 ' Cooper V. Singleton, 19 Tex. 260; 70 Am. Dec. 333; Tarpley v. Poage, 3 Te.x. 
 139; Woodward v. Rogers, 20 Te.x. 176; Cook v. Jackson, 20 Tex. 309; Johnson' 
 V. Long, 37 Tex. 31; Demaret t. Bennett, 29 Tex. 263; Johnston v. Powell, 84 
 Tex. 538; Fisher v. Dow, 73 Tex. 433; 10 S. W. Rep. 455; Haralson v. Langford, 
 66 Tex. Ill; 18 S. W. Rep. 339; Groesbeck v. Harris, 83 Tex. 411 (1891); 19 S. W. 
 Rep. 850; Hubert v. Grady, 59 Tex. 503; Blanks v. Ripley, (Tex. Civ. App.) 37 
 S. W. Rep. 733; Doughty v. Cottraux, (Tex. Civ. App.) 27 S. W. Rep. 914. He 
 must show a reasonable certainty of eviction. Price v. Blount, 41 Tex. 473. He 
 may resist the payment of the purchase money without showing a liability to 
 eviction where fraud was used to induce him to accept the title. Norris v. Evans. 
 60 Tex. 83. The Texas doctrine is thus stated in Cooper v. Singleton, 19 Tex. 
 367; 70 Am. Dec. 833, the leading case in that State: " The difference between 
 the liabilities of the vendee under an executory an<l executed contract is this: 
 That in the former he should be relieved by showing defect of title, unless on 
 proof by the vendor that this was known at the sale, and it was understood that 
 such title should be taken as the vendor could give. In the latter the vendee 
 should establish, beyond doubt, that the title was a failure in whole or in part; 
 that there was danger of eviction, and also 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, 39 Tex. 268, it is said: 
 "A purchaser who has gone into possession under a deed with warranty, with- 
 out 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 out- 
 standing title by actual ouster, or wliat is tantamount to the same, an indisputable 
 superior outstanding title, and that he is liable to be evicted. He must return the 
 possession of the premises, and the deed for cancellation. In Preston v. Breed- 
 love, 45 Tex. 47, it was held that a party in possession claiming under complete 
 and recorded conveyances, could not be affected by a decree of foreclosure against 
 a remote vendor alone, and that a sale thereunder being ineffectual to cut off his 
 defenses against the lien, he could not set up such sale as a defense to an action 
 against him for the purchase money, citing Mills v. Traylor, 86 Tex. 7, and other 
 cases. It was also held in this case that the fact that suit had been brought 
 against the maker of a note, secured by vendor's lien, to recover the land, was 
 not sufficient evidence of failure of title to enable him to detain the purchase 
 money. 
 
 'Brock v. Southwick, 10 Tex. 65; Demaret v. Bennett, 39 Tex. 368; Bryan v. 
 Johnson, 39 Tex. 31; Price v. Blount, 41 Tex. 473; Herron v. De Bard, 34 Tex. 
 
 67 
 
450 MAEKETABLE TITLE TO EEAL ESTATK. 
 
 of defects which lay in the vendor's chain of title unless his atten- 
 tion was diverted from them by the artifices of the vendor'.^ A 
 purchaser availing himself of this defense must surrender possession 
 to the grantor and give up the deed to be cancelled,^ and an answer 
 setting up such a defense and containing no oifer to reconvey is 
 insufficient.^ But he may, nevertheless, surrender the possession to 
 
 181; May v. Ivie, 68 Tex. 379; 4 S. W. Rep. 641; TwoMg v. Brown, 85 Tex. 51; 
 ■Kagan v. McWhirter, 71 Tex. 567 ; 9 S. W, Rep. 677. Upon this point the 
 leading case is Brock v. Southwicli, 10 Tex. 65. It is there said : " The proof 
 shows a contract of purchase and a conveyance subsequently executed with war- 
 ranty of title and possession. The defendant accepted the conveyance with a 
 linowledge of the defect of title. He was put upon inquiry and was informed 
 that the title was defective. He nevertheless made the purchase and accepted 
 the conveyance without objection, relying, doubtless, upon his chances to perfect 
 the title, or upon the security afforded by the covenants in his deed of conve^'- 
 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 cove- 
 nants in his deeds in case of eviction." The purchaser'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 conveyance 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 insol- 
 vent. The circumstances recited in the plea indicate that he was as well advised 
 of the defect in the title and the insolvency of the appellee at the time he pur 
 chased as he was at the time he executed the note. He admits that he is in pos- 
 session 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 jjurchased." 
 
 ' Haralson v. Langford, 66 Tex. 118, citing Woodward v. Rogers, 30 Tex. 
 176, where, however, the point does not seem to have been distinctly ruled. 
 
 Demaret v. Bennett, 29 Tex. 263; Haralson v. Langford, 66 Tex. Ill; 18 
 8. W. Rep. 339; Ogburn v. "Whitlow, 80 Tex. 339; 15 S. W. Rep. 807, citing 
 Smith V, Nolan, 21 Tex. 497. 
 
 » Ogburn v. Whitlow, 80 Tex. 239; 15 S. W. Rep. 807. 
 
DETENTION OF PTJECHASE MONEY BEEACH OF COVENANT. 451 
 
 an adverse claimant, and detain the purchase money though he has 
 thereby incapacitated himself from placing the vendor 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.' He may 
 also buy up the rights of an adverse claimant to prevent inevitable 
 eviction,^ but this, however, is held to be equivalent to an actual 
 eviction.^ It may be observed that in this State, tliough a convey- 
 ance has been executed to the purchaser, the contract is held to be 
 executory so long as the purchase money remains unpaid.^ 
 
 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.^ 
 
 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 .^ But it is not a sufBcient defense 
 to show merely that at one time tlie title was outstanding in a 
 stranger ; he must show also that such title has never been acquired 
 by the vendor.' It seems that in this State the existence of a valid 
 incumbrance upon the premises, is, equally with failure of the 
 title, a ground for detaining the purchase money, provided the 
 conveyance with warranty was accepted without notice of the 
 incumbrance.^ 
 
 § 190. RULE IN SOUTH CAROLINA. In South Carolina a pur- 
 chaser who has taken a conveyance with general warranty, which in 
 that State embraces the five common-law covenants,' may, for any 
 defect of title embraced by those covenants,'" defend an action at 
 
 1 Fisher v. Dow, 72 Tex. 432; 10 S. W. Rep. 455. 
 
 2 Clark V. Mumford, 63 Tex. 531. 
 sRawle Govts. (5tli ed.) § 146. 
 
 ^Kennedy v. Bmbry, 72 Tex. 387; 10 8. 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. 
 
 <> Rhode V. Alley, 37 Tex. 445. 
 
 « Fisher v. Abney, 69 Tex. 416; 9 S. W. Rep. 321. 
 
 'Haralson v. Langford, 66 Tex. Ill; 18 S. W. Rep. 339. 
 
 "Tarlton v. Daily, 55 Tex. 92. 
 
 « Evans v. McLucas, 12 S. C. 56; Lessly v. Bowie, 24 8. 0. 197; 3 S. E. Rep. 199. 
 
 " Rogers v. Horn, 6 Rich. Eq. (8. C.) 362; Evans v. Denby, 3 Spears (S. C), 
 10; 13 Am. Dec. 356. 
 
452 MARKETABLE TITLE TO EEAL ESTATE. 
 
 law for the purchase money, though there has been no eviction, if 
 he can show tliat the defect consists of an outstanding paramount 
 title to whicli he must inevitably yield.' But he cannot, in such a 
 case, go into a court of equity and obtain a rescission of the contract 
 
 ' Thompson v. :\IcCord, 3 Bay (S. C.),' 76; Taylor v. Fulmore, 1 Rich. Eq. (S. 
 C.) 52; Sumter V. Welsh, 1 Brev. (S. C.)539; Johns v. Nixon, 3 Brev. (S. C.)472; 
 Van Lew v. Parr, 3 Rich. Eq. (S. C.) 340, and Rawle Govts. 569, n., where it i* 
 said: "Since Purman v. Elmore (A. D. 1819, reported in a note to Mackey v. 
 Collins, 2 Nott & MoC. 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, therefore, considered necessary to its breach. Hence, it was 
 held that it a purchaser 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 pur- 
 chase money and interest, and it followed that where a portion of the land 
 was so covered by paramount title damages could be assessed pi'o tanto, and 
 such is the law at the present day," citing Farrow v. Mays, 1 Nott & 
 McC. 313; Hunter v. Graham, 1 Hill, 370; Van Lew v. Parr, 3 Rich. Eq. 387; 
 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, 37 S. C. 193; 3 S. E. Rep. 199, which was an action to foreclose a pur- 
 chase-money mortgage, a purchaser with general warranty resisted the payment 
 of the purchase money on the ground of an O'jtstanding 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 pos- 
 session 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 recov- 
 ered for a mere technical breach of the covenant of seisin alone, without actual 
 damage sustained, or eviction. Indeed, the distinguished Chancellor Johnstiim, 
 in delivering the Judgment of the old Court of Errors, in the case of Van Lew v. 
 Parr, 3 Rich. Eq. (S. C.) 340 (1846), said: ' Arguments were drawn by counsel 
 from a very extensive and critical examination of the law decisions of this State 
 to shew that as the law courts in certain cases allow damages upon breach of the 
 covenants of deeds conveying land, where there has been no previous eviction, 
 equity should rescind the contract where the remedy at law is incomplete. 
 * -x- -x- rpjig in-^ courts seem to have been struggling for years to get clear of 
 the early decisions allowing recoveries on the ground of failure of title wiibout 
 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 
 
DETENTION OF PURCHASE MONEY BREACH OF COVENANT. 453 
 
 SO long as he remains in undisturbed possession of the premises, in 
 the absence of fraud or insolvency on the part of the vendor.^ 
 Judgment liens binding the warranted premises constitute no 
 
 the premises as it may cover. It lias 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 interfere and rescind the contract. But 
 apart from the incompetency of a court of equity to try the validity of the out- 
 standing 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 elsewhere. 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 8. C. 169 (1884); 
 Bethune v. McDonald, 35 S. C. 88 (1891); 14 S. E. Rep. 674; Munro v. Long, 
 35 8. C. 354 (1891); 15 S. E. Rep. 553, each of which was an action to foreclose 
 a purchase-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 contract of sale, 
 but it is an action for the purchase money of the propert}' 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 out- 
 standing paramount' title, though he had been evicted, but this case and those 
 which follow it were subsequently disapproved in Johnson v. Purvis, 1 Hill (8. 
 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 rescis- 
 sion of the contract. See, also. Van Lew v. Parr, 2 Rich. Eq. (8. C.) 337; West- 
 brook V. McMillan, 1 Bailey (S. C), 259; Bordeaux v. Carr, 1 Bailey (S. C), 250; 
 Carter v. Carter, 1 Bailey (8. C), 217. In Poyas v. Wilkins, 13 Rich. (8. C.) 
 420, it appeared that part of the premises purchased was, at the time of purchase, 
 in possession of a third person claiming under a prior conveyance, which con- 
 veyance did not in fact include the premises in dispute, and that such third per- 
 son 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, 3 
 Rich. Eq. (S. C.) 307; Maner v. Washington, 3 Strobh. Eq. (8. C.) 171; Kebler v. 
 Cureton, Rich. Eq. Cas. (S. C.) 143; Gillam v. Briggs, Rich. Eq. Cas. (8. C.)143; 
 
454 MARKETABLE TITLE TO EEAL ESTATE. 
 
 ground for detaining the pT;rcliase money, unless the purchaser 
 removed them.^ 
 
 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 emjytoi- 
 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.' 
 
 § 191. PLEADINGS. The defendant in an action for the pur- 
 chase money of lands, setting up a breach of the covenants in his 
 deed as a defense, must file witli his pleadings the original or a copy 
 of that deed,^ or set out the same, or the essential parts thereof, in 
 the pleadings.* 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 pur- 
 chaser intends to rely on a breach of the covenants for title as a 
 defense to an action for the purchase money, his pleadings mast 
 aver the existence of the covenants. Thus, in an action to foreclose 
 a purchase money mortgage, an answer that the defendant 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 averments as would a declara- 
 tion upon the covenant." The purchaser may avail himself of a 
 
 Evans v. McLucas, 13 S. C. 56; Lessly v. Bowie, 37 S. C. 193 (1887); 3 S. E. 
 Rep. 199; Childs v. Alexander, 23 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; Means v. Bricknell, 3 Hill (S. C), 143; Abercrombie v. Owings, 3 Rich. 
 L, 137. 
 
 ' Gourdine v. Pludd, Harp. L. (8. C) 333. 
 
 'Davis V. Murray, 3 Const. Rep. (S. C.) 148; 13 Am. Dec. 661; Herbemont v. 
 Sharp, 3 McCord L. (S. C.) 265. 
 
 2 Starkey v. Neese, 30 Ind. 323; Patten v. Camplin, 63 Ind. 513. 
 
 ^In Howard v. Randolph, 73 Tex. 454; 11 S. W. Rep. 495, failure to describe 
 the instrument containing the warranty was held fatal. 
 
 ' Grantland v. Wight, 5 Muuf. (Va.) 295. Moss v. Davidson, 1 Sm. & M. (Miss.) 
 113. Laughery v. McLean, 14 Ind. 106. 
 
 ' Jenkinson v. Ewing, 17 Ind. 505. Ante, p. 411. 
 
DETENTION OF PURCHASE MONEY — BEEACH OF COVENANT. 455 
 
 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.^ 
 
 § 192. EESTJME. From the principles discnssed in the foregoing 
 pages it would seem to follow, that if the covenantee was never 
 able to get possession of the land, the possession and paramount 
 title being in another, there would be a total failure of the con- 
 sideration, which he might plead, even at common law, as an 
 absolute iar to an action for the purchase money. If, on the other 
 liand, 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 
 absolute 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 hj 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.^ 
 
 > Taul V. Bradford, 30 Tex. 264; Hurt v. McReynoIds, 20 Tex. 595. 
 "Post, ch. 86. 
 
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 PRECE- 
 DENT. § 194. 
 LACHES OF PURCHASER. § 195. 
 DAMAGES IN EttUITY. § 196. 
 
 § 193. IN GENERAL. We have thus far considered tlie reme- 
 dies of the purchaser of lands in affirmance of the contract by action 
 at law ^vhere the title has failed, both where the contract is execu- 
 tory and where it has been executed by the delivery and acceptance 
 of a conveyance. We proceed now to consider the remedies of the 
 purchaser in affirmance of the contract by proceedhigs 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 subdivisions, " The right of the purchaser to take 
 the title with compensation for defects ; '" and " The right of the 
 purchaser to perfect the title, and to require a conveyance from 
 the vendor."' 
 
 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 cove- 
 nant for further assurance, or to require the grantor to remove an 
 incumbrance from the premises.' 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.^ But the greater number of suits by the 
 
 1 Post, ch. 18. 
 ' Post, ch. 19. 
 
 sRawle Covts. (5th ed.) §§ 104, 362; Sugd. Vend. (14th ed.) 613. 
 " 3 Story Eq. Jur. § 779; Bispham's Eq. (3d ed.) § 380; Pry Sp. Perf. (3d Am. 
 ed.) § 1174. 
 
SPECIFIC PEEFOEMANCE OF EXECUTOEY CONTRACTS. 457 
 
 purchaser for the specific performance of the contract are instances 
 in whicli 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 proceedings 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 discharge of incumbrances 
 upon the estate, or to the removal of objections to the title, or where 
 he himself has so apjDlied tl;ie purchase money and seeks tho 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.^ 
 
 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.' 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.^ He cannot be 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 
 
 ' Iq Gotthelf V. Stranahan, 138 N. Y. 345; 34 N. E. Rep. 286, it was hold that 
 an agreement to convey free from all incumbrances by warranty deed, did not 
 require the vendor to satisfy assessments for "contemplated improvements," 
 which the city might abandon, but that he must remove an assessment 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 agreement. Stone v. Lord, 80 N. Y, 60. 
 
 ' 1 Sugd. Vend. (8th Am. ed.) 329 (217); Adams Eq. m. p. 81. Crop v. Noston, 
 3 Atk. 74; Cornwall v. Williams, Col. P. C. 390; Bennet Col. v. Gary, 3 Bro. 
 C. C. 390; Tendring v. London, 2 Eq. Cas. Abr. 680; Bryan v. Lewis, 1 Moo. 
 & Ray, 886. 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. 
 
 'Franz v. Orton, 75 111. 100. A purchaser who has agreed to be "at one-half 
 of the expense of procuring a title " cannot demand specific performance until 
 he has paid his part of the expense of procuring title. Hutchinson v. MoNutt, 
 1 Ohio, 14. 
 
 58 
 
458 MARKETABLE TITLE TO EEAL ESTATE. 
 
 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.' 
 
 But, on the other hand, if the vendor disable himself from per- 
 forming 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 orig- 
 inal contract.^ The vendor cannot defend a suit for specific per- 
 forn;arce 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.^ But it is error for the court to decree that the defend- 
 ant convey within a certain time when the bill shows that he has 
 not the legal title.* 
 
 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 
 and may maintain a suit for specific performance against his vendor 
 and the original vendor.^ 
 
 K the purchaser sues the vendor for specific performance, it is a 
 good defense by the latter that he has not and caimot procure the 
 titlo.^ If it be practicable, however, for him to procure the title' 
 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 
 
 • 1 Sugd. Vend. (8th Am. ed.) 352; 2 Story Eq. Jur. (13tli ed.) § 788. Fewster 
 V. Turner. 6 Jur. 144. Champion v. Brown, 6 Johns. Ch. (N. Y.) 402; 10 Am. 
 Deo. 343. Stone v. Buckner, 12 Sm. & M. (Miss.) 73. Hunter v. Bales, 24 Ind. 
 299. See, also, Jacques v. Vigo County, 3 Blackf. (Ind.) 403. Of course one 
 who acquires the legal title without notice of the equitable rights of a prior pur- 
 chaser cannot be required to convey to such purchaser. Cunningham v. Depew, 
 Morris (Iowa), 463. 
 
 ' Story Eq. Jur. §§ 39.5, 396. Estell v. Cole, 52 Tex. 170; Austin v. Ewell, 25 
 Tex. Supp. 407. White v. Mooers, 86 Me. 62; 29 Atl. Rep. 936. Bates v. Swi- 
 ger, (W. Va.) 31 S. E. Rep. 874. 
 
 = 1 Sugd. Vend. (8th Am. ed.) 332, 525, citing Crop v. Norton, 2 Atk. 74; Costigaa 
 V. Hastier, 3 Sch. & Lef. 160. 
 
 * Compton V. Nuttle, 3 Ind. 416. 
 
 ' 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. 
 ' Love V. Camp, C Ired. Eq. (N. C.) 309; 51 Am. Dec. 419. 
 "Love V. Cobb, 63 N. C. 324. 
 
SPECIFIC PEEFOEMANCE OF EXECUTOEY CONTEACTS. 459 
 
 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 compel 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." * 
 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 pur- 
 chaser makes objections to the title.^ It has been held that if the 
 vendor have not title the purchaser is, nevertheless, in his suit for 
 specific performance, entitled to a decree that the vendor make a 
 reasonable effort to acquire the title and perform his contract.' 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.* He must, 
 however, submit to the alternative of taking that title or having 
 his bill dismissed.' 
 
 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.^ It has been held, however, that if the vendor agree to 
 convey by quit claim, the agreement has reference only to such 
 
 ' Roberts v. Wyatt, 2 Taunt. 268. 
 
 ^Language of Mansfield, C. J., in Roberts v. Wyatt, supra. 
 'Wellborn v. Sechrist, 88 N. C. 387. In this case the vendor had disabled 
 himself from perfoi-ming the contract by conveying to a stranger. 
 
 * 1 Sugd. Vend. (8th Am. ed.) 538. Stapylton v. Scott, 16 Ves. 273. 
 
 ' 1 Sudg. Vend. (8th Am. ed.) 528. Nicholson v. Wadsworth, 2 Swanst. 365. 
 
 * Graham v. Hackwell, 1 A. K. Marsh. (Ky.) 433. Tysen v. Passmore, 3 Barr 
 (Pa.), 123; 44 Am. Dec. 181. Trask v. Vinson, 20 Pick. (Mass.) 109, the court 
 saying: " We know of no rule of lavr or principle of sound policy which pro- 
 hibits a person from agreeing 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 
 
460 MAEKETABLE TITLE TO EEAL ESTATE. 
 
 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.' 
 
 The purchaser may, of course, tile his bill requiring the vendor 
 to remove an incumbrance from the premises, unless the purchase 
 was made subject to incumbrances.^ Eut the court cannot enter a 
 decree requiring the vendor to remove an incumbrance which he 
 has not a legal right to discharge.^ Nor can the vendor be required 
 to remove incumbrances or cure defects in the title where the sale 
 was not made upon a consideration deemed valuable in law.* 
 
 If the contract provides only that the vendor shall make a good 
 and sufBcient deed, and that the earnest money shall be refunded if 
 the title proves to be not good, the pu.rchaser cannot, if he is dis- 
 satisfied with the title, refuse to accept a conveyance with general 
 warranty, reject an offer to return the purchase money, and I'equire 
 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.'' 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 pur- 
 chase 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 purchase 
 because there was an incumbrance on the premises.^ And if the 
 
 his contract. If he fairly performs the terms of the stipulation it matters noth- 
 ing 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, p. 516. 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, 26 Miss. 599; 59 Am. Dec. 270. 
 Jackson v. Wright, 14 Johns. (N. Y,) 193; Bank v, Mersereau, 3 Barb, Ch, (N. 
 Y,) 568; Jackson v, Hubbell, 1 Cow, (N, Y,) 613, 
 
 = 2 Sugd, Vend, (8th Am. ed.) 191, 192 (548). Bennett v. Adams, 41. Barb 
 ■(N. Y.) 625. 
 
 = Jerome v. Scudder, 2 Rob, (N. Y.) 169. 
 
 ^ 2 Story Eq. 793b. Froman v. Froman, 13 Ind. 317. 
 
 ^Brizzolara v. Mosher, 71 111. 41. 
 
 « Long V. Miller, 46 Minn. 13; 48 N. W. Eep. 409. 
 
SPECIFIC PEEFOEMANCE OF EXECUTOEY CONTEACTS. 461 
 
 purchaser by liis acts or conduct manifestly abandons the contract, 
 as by submitting to a forfeiture of the earnest money, he' cannot, 
 afterwards elect to affirm the agreement and have a specific per- 
 formance 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 keej) the agreement open indefinitely so as to 
 avail himself of a rise in value, or to escape loss in case of a depre- 
 ciation.* On the other hand, a rapid, unexpected and unprecedented 
 increase in the value of the property while the title is being per- 
 fected will not justify the vendor in refusing to complete the eon- 
 tract, where the purchaser has waived none of his rights, and has 
 been guilty of no laches or unjustifiable delay in seeking specific 
 performance.^ 
 
 There must, of course, be an unconditional acceptance of an offer 
 to sell before the purchaser can maintain a bill for specific perfoi'm- 
 ance. Therefore, where the acceptance by the purchaser was quali- 
 fied by the addition " provided the title is perfect," it was held that 
 a suit for specific performance could not be maintained by the 
 purchaser.^ 
 
 § 1 91. 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 payment, and he 
 cannot be compelled to convey unless the purchaser has paid or 
 offered to pay the purchase money.* A recovery of the premises 
 
 ' 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. 
 
 ' Keim v. Lindley, (N. J. Eq.) 80 Atl. Rep. 1063. In this case the premises ia 
 controversy consisted of a narrow strip of water front that became very valuable 
 as a seaside resort. 
 
 8 Corcoran v. White, 117 111. 118; 57 Am. Rep. 858. 
 
 ^Mix V. Beach, 46 111. 816. Where a contract for the sale of land had beea 
 rescinded by agreement between the vendor and the administrator of the vendee 
 
462 MARKETABLE TITLE TO EEAL ESTATE. 
 
 from the purchaser in ejectment, for failure to pay the purchase 
 money, does not necessarily dejjrive 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 prop- 
 erty was incumbered, and the vendor declared a forfeiture and 
 recovered the premises in ejectment, it was held that the purchaser 
 might waive his right to insist upon a perfect title, pay the balance 
 of the purchase money, less the amount of the incumbrance, and 
 compel a conveyance from the vendor with covenants stipulated for 
 in the contract.^ 
 
 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.^ 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 pur- 
 chase money until he has a title, the purchaser cannot be called 
 upon to pay the money into court ; and the reason is that the under- 
 standing becomes a matter of contract which the vendor mast abide 
 by, and he cannot call upon the court to interfere and compel the 
 purchaser to part with his money before he has a title.' 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 agree- 
 ment about paying the purchase money.* 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 posses- 
 sion 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 pur- 
 chase, or is exercising improper acts of ownership, by which the 
 
 after part of the purchase money had been paid, h 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. 
 iStrange v. Watson, 11 Ala. 324. 
 
 ' Wallace v. McLaughlin, 57 Ind. 53. 
 
 'Birdsall v. Walton, 3 Edw. Ch. (N. Y.) 315. 
 
 2 Gibson v. Clarke, 1 Ves. & B. 500. 
 
 « Clarke v. Elliott, 1 Mad. C. R. 606. 
 
SPECIFIC PEEFOEMANCE OF EXECUTOEY CONTEACTS. 463 
 
 property is lessened in value.' 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.^ 
 
 The purchaser, of course, will not lose his right to a specific per- 
 formance 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.^ 
 
 § 195. LACHES or PURCHASEK. 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.* This rule applies with peculiar force 
 where the vendor notifies the purchaser to complete the contract 
 within a specified time under penalty of rescission.^ But the pur- 
 chaser will not be chargeable with laches where he has delaj'ed pay- 
 ing the purchase money on account of doubts as to the title ; the 
 title itself being in litigation or dispute.* 
 
 § 196. DAMAGES IN EftUITY. 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.' 
 
 • 1 Sugd. Vend. (8th Am. ed.) 239, 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. 
 
 ^Shorthall v, Mitchell, 57 111. 161. Melton v. Smith, 65 Mo. 355, a case in 
 ■which the vendor failed to show laches. 
 
 « 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. Hermann, 144 
 ]Sr. Y. 18; 38 N. B. Rep. 966. Cf. Barbour v. Hickey, 2 App. Cas. (D. C.) 
 207. 
 
 ' 1 Sugd. Vend. (8th Am. ed.) 350 (233); Rawle Govts. (5th ed.) § 354. Courts of 
 equity in England are empowered by "Lord Cairns' Act" (21, 22 Vict. 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, 
 
464 maekb;table title to real estate. 
 
 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.^ The same rule will apply, it is apprehended, if 
 the purchaser knows, or is bound to know, that the vendor from any 
 other cause, will be unable to perform the decree of the court. But 
 damages may always be recovei'ed in equity as an alternative or inci- 
 dent to some other relief which is in good faith the object of the 
 suit.^ If the vendor fail to complete his contract at the appointed 
 time, the purchaser may have specific performance in eqiiity ; or, if 
 the title be defective and performance be impossible, he may have 
 damages in lieu thereof,^ unless the plaintifE knew when he brought 
 
 2 Barb. (N. Y.) 370. Hill v. Fiske, 38 Me. 520; Smith v. Kelly, 56 Me. 64. 
 Doan V. Mauzy, 33 111. 337. McQueen v. Choteau, 20 Mo. 332; 64 Am. Dec. 
 178. 
 
 1 Sims V. Lewis, 5 Munf. (Va.) 29. Bullock v. Adams, 5 C. E. Gr. (N. J.) 867. 
 Lewis V. Gale, 4 Fla. 437. 
 
 ' Cases cited in notes above. 2 Story Eq. Juris. 794, 799; 3 Pom. Eq. .Jur. (3d 
 ed.) § 1410, note 1. Slaughter v. Tindle, 1 Litt. (Ky.) 358; Fisher v. Kay, 2 Bibb 
 (Ky.), 434. Scott v. Bilgerry, 40 Miss. 119. Chinn v. Heale, 1 Munf. (Va.) 63. 
 Taylor v. Rowland, 36 Tex. 393. O'Beirne v. Bullis, 80 Hun (N. Y.), 570; SON. 
 Y. Supp. 588; Margraf v. Muir, 57 N. Y. 155; Miles v. Furnace Co., 135 N. Y. 
 394; 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, Chouteau, 20 Mo. 233; 54 Am. Dec. 
 178; Hamilton v. ILamilton, 59 Mo. 332. In 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 hav- 
 ing demurred on the ground that the action was improperly brought, or that the 
 plaintifE had an adequate remedy at law. Styles v. Blume, 30 N. Y. Supp. 409. 
 In Currie v. Cowles, 6 Bosw. (N. Y.) 453, it was said by Robertson, J., that if 
 the complainant in a suit for specific performance does not allege that good title 
 cannot be made, and merely seeks a conveyance, he cannot in the absence of 
 fraud on the part of the vendor waive the rehef 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. 
 
 8 Fry Sp. Perf. (3d Am. ed.) § 1337. McFerran v. Taylor, 3 Cranch. (U. S. S. 
 C.) 270; Pratt v. Campbell, 9 Cranch. (U. S. S. C.) 456, 494. County of Mobile 
 
SPECIFIC PEEFOEMANCE OF EXEOUTOET CONTEACTS. 465 
 
 his suit that there could be no performance.' If the purchaser is 
 first informed of the defective title by the vendor's answer or other 
 pleading, the jurisdiction to award damages will be clear.' And 
 if tlie vendor convey the premises to an innocent party pending the 
 suit for specific performance, the purchaser will be entitled to 
 damages.* 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 ; * 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 ha^ 
 not a full and adequate remedy at law.^ The converse of this 
 proposition, also, has been decided, namely, that the court will 
 
 V. Kimball, 103 V. S. 691, 706. Stevenson v. Buxton, 37 Barb. (N. Y,) l.S. 
 Taylor v. Rowland, 26 Tex. 293. In Fisher v. Kay, 3 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 perform- 
 ance, 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 y. Bayard, 6 0. E. Gr. (N. J. Eq.) 186, specific 
 performance was denied the purchaser, (1) because the contract was not in writ- 
 ing; and (3) because the title to the premises was in the defendant's wife. The 
 purchaser asked a decree for repayment of the purchase money, but this was 
 refused on the ground that his remedy was at law. It does not appear that he 
 was advised of the true state of the title when he brought his suit. If he was 
 not so advised, the case is at variance with the current of authority. 
 
 ' ? Story Bq. Jur. 794, et seq. 
 
 ^ 3 Pom. Eq. Jur. § 1410. Milkman v. Ordway, 106 Mass. 233. 
 This, however, in England seems to be only by force of a statute (1858) 31 & 
 33 Vict. c. 27 (" Lord Cairns' Act"), enlarging the jurisdiction of the Chancery 
 Courts. 1 Sugd. Vend. (8th Am. ed.) 852. 
 
 * 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; 53 Am. Dec. 325. Specific performance was 
 denied in this case because it did not appear that all the purchase money had 
 been paid. 
 
 59 
 
466 MARKETABLE TITLE TO EEAL ESTATE. 
 
 entertain a bill solely for compensation and damages provided 
 specific performance can be decreed.' 
 
 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 
 adjoming lands to which he has title, but which were not embraced 
 in the contract.^ 
 
 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.^ But if the vendor be guilty of fraud,^ 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 prop- 
 erty. If the vendor received a profit at the second sale, it will be 
 decreed to the complainant.^ 
 
 ' Berry v. Van Winkle, 1 Gr. Ch. (N. J.) 269; Copper v. Wells, Saxt. (N. J 
 Eq.) 10. 
 
 ' Kelly V. Bibb, 3 Bibb (Ky.), 317. 
 
 3 Bain v. Fothergill, L. R., 7 H. L. 158; Burrow v. Scammell, 19 Ch. Dec. 
 175, 181. 223. 
 
 » Ante, p. 233. 
 
 s Sugg V. Stone, 5 Jones Eq. (N. C.) 126; Taylor v. Kelly, 3 Jones Eq. (N. C.) 
 840. Graham v. Hackwith, 1 A. K. Marsh. (Ky.) 434; Rutledge v. Lawrence, 1 
 A. K. Marsh. (Ky.) 390; Gerault v. Anderson, 3 Bibb (Ky.), 543. 
 
CHAPTEE, XYIII. 
 
 OF THE RIGHT OF THE PURCHASER TO TAKE TITLE "WITH COM- 
 PENSATION 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 TITLE. § 201. 
 
 § 197. GENERAL RULE. We shall see tliat if the title to a sub- 
 stantial part of the subject fails or if an incumbrance other than 
 a trifling or inconsiderable charge on the premises is discovered 
 after tlie 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.' Yet there is no obligation upon 
 him to rescind ; as a general rule he may compel the vendor to con- 
 vey to him that part to which the title is good, with compensation, 
 or abatement of the purchase money for tlie 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 difference in 
 value of the two estates.^ The same rule has been applied in a case 
 
 ' Post, § 326. 
 
 2 1 Sudg. Vend. (8th Am. ed.) 479, 466, 480; 2 Story Eq. 779; 2 Beach Eq. Jur. 
 § 627; Pomeroy Sp. Perf. § 438; Bisph. 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 is. 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 fi 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,, 9Eq. 51; Barnes v. Wood, L. R., 8 Eq. 424; Whlttemore v. Whittemore, 
 L. R., 8 Eq. 603; Horrocks v. Rigby, L. R., 9 Ch. D. 180; Burrow v. Scaramell, 
 L R., 19 Ch. D. 175. In Williams v. Edwards, 2 Sim. 98, where there was a 
 stipulation that errors in the description should not vitiate the agreement, but 
 
468 MARKETABLE TITLE TO EEAL ESTATE. 
 
 ■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 laud. It was considered that the grantee might hold 
 the part to which the title was good and recover on the warranty as 
 to the residue.' 
 
 that, if the purchaser's counsel should be of opinion that the title was not mar- 
 ketable, 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, 3 Wh. (U . 
 S.) 302, n. Morss v. Elmendorf, 11 Paige (N. Y.), 277; Westervelt v. Mattheson, 
 1 HofE. Ch. (N. Y.) 37; Jerome v. Scudder, 2 Rob. (N. Y.) 169; Bostwick v. Beach, 
 103 N. Y. 414. 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. 481. Graham v. Gates, 6 Harr. 
 & J. (Md.) 229; Drury v. Connor, 6 Harr. & 3. (Md.) 288. Evans v. Kingsberry, 2 
 Rand. (Va.) 120; Chinn v. Heale, 1 Munf. (Va.) 63; White v. Dobson, 17 Grat. (Va.) 
 262. Henry v. Liles, 2 Ired. Eq. (N, C,)407; Wilcoton v. Galloway, 67 N. C. 463. 
 Austin v. Ewell, 25 Tex. Supp. 408, 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. AVallace, 7 Lea (Tenn.), 413. Weth- 
 erell v. Brobst, 28 Iowa, 586. Luckett v. Williamson, 81 Mo. 54. Adams v. Mes- 
 senger, 147 Mass. 185; 17 N. E. Rep. 491; 9 Am. St. Rep. 679. See, also, Massa- 
 chusetts cases cited, infra. "Indemnity against contingent right of dower." To 
 the text: Swain v. Burnett, 76 Cal. 299; 18 Pac. Rep. 894; Marshall v. Caldwell, 
 41 Cal. 614; Morenhout v. Barron, 42 Cal. 591. Rohr v. Kindt, 3 W. & S. (Pa.) 
 568; 89 Am. Dec. 58; Barnes' Appeal, 46 Pa. St. 350; Erwin v. Myers, 46 Pa. St. 
 96. Wallace v. McLaughlin, 57 111. 53. Lounsbery v. Locander, 25 N. J. Eq. 
 555. Wilson v. Cox, 50 Miss. 133. Moses v. Wallace, 7 Lea (Tenn.), 413. Gar- 
 trell V. Stafford, 12 Neb. 545; 11 N. W. Rep. 783. Beck v. Bridgman, 40 Ark. 
 382. Vagueness and uncertainty in the pleadings and proof, or a variance 
 between them &s to whether the vendor covenanted to convey the entire interest 
 In lands, or only his undivided interest, is no objection to a decree for specific 
 performance, since the court can only compel him to convey such interest as he 
 may have. Began v. Baughdrill, 51 Ala. 313, citing 8 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. 233. In Cady v. Gale, 5 W. Va. 547, 
 one who had 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 suit 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 abate- 
 ment of the purchase money. His remedy is in ejectment. Lange v. Jones, 5 
 Leigh (Va.), 192. 
 
 'Butcher v. Peterson, 26 W. Va. 447; 53 Am. Rep. 89, citing Atty.-Gen. v. 
 Day, 1 Ves. 218. Beverly v. Lawson, 3 Munf. (Va.) 317. See, also, Clark v. 
 
EIGHT OF ETJECHASER TO TAKE TITLE WITH COMPENSATION. 469 
 
 A subsequent conveyance by the vendor is no ground for refus- 
 ing specific performance if the purchaser be willing to accept what 
 remains of the land, with an abatement of the purchase money ; ' and 
 this, though the subsequent conveyance were made with his con- 
 sent,^ The vendor cannot object to specific performance on the 
 ground that he holds a bare legal title in trust for another, if the 
 purchaser be willing to accept such title.'' Nor can he object that 
 the title is outstanding in a third person.* 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 cannot be compelled to complete 
 the contract.* If the parties are mutually mistaken as to the ven- 
 dor's title to a part of the land, the purchaser, having improved the 
 premises, may compel the vendor to convey the other part, and 
 have a ratable abatement of the purchase money for the deficiency.' 
 The vendor cannot refuse to convey on the ground that the prop- 
 erty is incumbered. The purchaser has a right to insist upon 
 the application of the unpaid purchase money to the incum- 
 brance.' A charge upon the premises for the maintenance of a 
 third person is no reason wliy 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.'" The rule in this respect is the same 
 
 Hardgrove, 7 Grat. (Va.) 399. But see post, this chapter, "Exceptions," as to 
 mistake. 
 
 .' Wiugate v. Hamilton, 7 Ind. 73. Bass v, Gilliland, 5 Ala. 761, 
 
 « Waters v. Travis, 9 Johns. (N. Y.) 450 
 
 3 Hyde v. Kelly, 10 Ohio, 215. 
 
 M Sugd. Vend. (8th Am. ed.) 525 532 (349, 355). 
 
 ' Post, eh. 31, § 290. 
 
 « Atty.-Gen. v. Day, 1 Ves. 218. 
 
 ' Voorhees v. De Meyer, 3 Sandf. Ch. (N. Y.) 614. 
 
 'Jerome v. Scudder, 2 Roti. (N. Y.) 169. 
 
 'Bates V. Swiger, (W. Va.) 21 S. E. Rep. 874. 
 
 '» Jacobs V. Locke, 2 Ired. Eq. (N. C.) 286. Moses v. Wallace, 7 Lea (Tenn.), 
 418. 
 
470 MAEKETABLE TITLE TO EEAL ESTATE. 
 
 as in actions at law for breach of the covenants for title.' 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 ques- 
 tion 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.^ 
 
 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 tiled to subject his 
 equitable interest in the premises to the payment of the judgment 
 for the purchase money, avail himself of want of title in the ven- 
 dor as a defense.^ 
 
 A decree for specific performance should not direct that the ven- 
 dor procure releases from parties over whom he has no control ; but 
 it should direct an inquiry by a master as to defects and incum- 
 brances, 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 incumbrances, and 
 the balance, if any, be paid over to the vendor.* 
 
 § 198. INDEMNITY AGAINST rUTXTBE 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,^ or an incumbrance on the property, except in the case 
 
 ' Ante, p. 389. Doctor v. Hellberg, 65 Wis. 415; 27 N. W. Rep. 176. 
 
 «Fiy Sp. Perf. (3d ed.) p. 578, et seq. ; 1 Sugd. Vend. (8th Am. ed.) 491 (324); 
 3 Story Eq. Jur. ch. 19. See Ketchxim v. Stout, 20 Ohio, 453, where the subject 
 is elaborately discussed, and many authorities collected. 
 
 'Dart V. McQuilty, 6 Ind. 391. 
 
 ■•Jerome v. Scudder, 2 Rob. (N. Y.) 169. 
 
 ' 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. Kinnaird, 32 Beav. 346; Ross v. Boards, 3 Nev. & Per. 382; 
 Lawrenson v. Butler, 1 Sch. & Lef. 13; Mortlock v. Butler, 10 Ves. 393; Colver 
 Clay, 7 Beav. 189. Lounsbery v. Locander, 25 N. J. Eq. 554. 
 
EIGHT OF PTJECHASER TO TAKE TITLE WITH COMPENSATION. 471 
 
 of an incohate right of dower in the premises,* 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 Kefeld v. Woodf oik, 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 of the incum- 
 brance, 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 incum- 
 brances. The reason given for the distinction 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 doubt- 
 ful incumbrance upon the estate.^ 
 
 ' Young v. Paul, 10 N. J. Eq. 415; 64 Am. Dec. 456. Post, this chapter. 
 
 = In Thomas v. St. Paul's M. B. Church, 86 Ala. 138; 5 So. Rep. 508, the ven- 
 dor was required to provide the purchaser with an indemnity against an incum- 
 brance on the premises. The case was distinguished from Refold v. Woolfolk, 
 supra, by the fact that the contract had been executed by conveyance with cove- 
 nant against incumbrances, while in the latter case the contract was merely exec- 
 utory. The former case may, therefore, be regarded as establishing the propo- 
 sition that in case of a contract executed with a covenant 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 incumbrances, the vendor might have been compelled to 
 provide an indemnity against an existing incumbrance, though the contract was 
 still executory. 
 
472 MARKETABLE TITLE TO REAL ESTATE. 
 
 § 199. INDEMNITY AGAINST INCHOATE BIGHT OE DOWER. 
 
 If tlie wife refuse to join with her husband in the conveyance, she 
 cannot be compelled so to do.' The purchaser may of course elect 
 to accept the conveyance of the husband alone.' Whether, in such 
 a ease, 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.' The sum which the purchaser may detain 
 
 ' 2 Story Eq. Jur. § 731. Troutman v. Gowing, 16 Iowa, 415. Hanna v. 
 Phillips, 1 Grant (Pa.), 353. Allison v. Shilling, 27 Tex. 450; 86 Am. Dec. 622. 
 Yost V. Devault, 9 Iowa, 60. Eichmond v. Robinson, 12 Mich. 193. 
 
 ' Zebley v. Sears, 38 Iowa, 507. Corson v. Mulvany, 49 Pa. St. 88; 88 Am. 
 Dec. 485. 
 
 '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; 93 Am. Dec. 731. Wright v. Young, 6 Wis. 137; 70 Am. Dec. 453. 
 Sanborn v. Nockin, 30 Minn. 178. Troutman v. Gowing, 16 Iowa, 415; Leach v. 
 Forney, 31 Iowa, 371; 89 Am. Dec. 574; Pressor v. Hildebrand, 33 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; 36 Am. Rep. 45. An 
 ingenious view of this question has been taken in a note to the case of Hum- 
 phrey V. Clement, 44 111. (3d 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 inj ury to the vendee at $250, why could 
 not a chancellor estimate the deduction which should be made from the pur- 
 chase money at Ihe use of the S350 so long as the wife should live ?" In Heim- 
 burg 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 entitled 
 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 
 
EIGHT OF PUECHASEE TO TAKE TITLE WITH COMPENSATION. 473 
 
 is the money value of the contingent interest of the wife, calculated 
 according to some one of the standard tables of longevity.* It is 
 to be observed that the abatement of the purchase money does not 
 affect the rights of the wife. She is no party to the proceeding, 
 and, 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 
 
 join in the deed, by a decree directing that her hushand shall pay damages in 
 the event of her refusal. Bituer v. Brough, 1 Jones (Pa.), 138; Riddleberger v. 
 Mintzer, 7 Watts (Pa.), 143; Wilier v. Weyand, 3 Grant (Pa.), 103; Shurtz v. 
 Thomas, 8 Barr (Pa.), 363; Clark v. Seirer, 7 Watts (Pa.), 107; 33 Am. Dec. 745; 
 Kiesz's Appeal, 73 Pa. St. 485; Burk's Appeal, 7.'j 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. Phillips v. Stanch, 80 Mich, 369. Hopper v. Hopper, 16 N. J. Eq. 147. 
 Hawraltj v. Warren, 18 N. J. Eq. 134; Reilly v. Smith, 35 N. J. Eq. 158. 
 Humphrey v. Clement, 44 111. 399. Barbour v. Hickey, 3 App. Cas. (Dist. of 
 Col.), 207; Sternberg v. McGovern, 56 N. Y. 12; Dixon v. Rice, 16 Hun (N. Y.), 
 423. 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.), 
 433, 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 hus- 
 band alone with damages or compensation for the wife's contingent 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 dam- 
 ages 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. 
 
 ' 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. "Ascer- 
 tain 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 con- 
 tingent 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. 
 60 
 
474 MAEKETABLE TITLE TO KEAL ESTATE. 
 
 would be to compel her to perform specifically the contract of her 
 husband.' As to the rights of the Tendor ; 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 
 husband.^ As to the rights of the purchaser ; it is true that the 
 right of dower may become consummate by tlie death of the hus- 
 band immediately after the deed has been accepted, so that the 
 amount abated from the purchase money might prove an inadequate 
 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 tlie 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. Tlie courts cannot compel her to part with her contin- 
 gent interest. If the vendor's wife refuses to join in the deed 
 through his fraudulent procurement, specific performance will be 
 granted the vendee with indemnity against the wife's interest.^ 
 
 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 cer- 
 tain, and cannot be taken or sold without her consent.* Where the 
 right of dower has become consummate by the death of the liusband, 
 there can be, of course, no doubt of the right of the purchaser to a 
 decree against the heirs for a specific performance, with compensa- 
 tiou.5 While the better opinion seems to be that the purchaser mav 
 
 ' Cases cited, ante, note. 3. 
 
 'Humphrey v. Clement, 44 111. 299. 
 
 2 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, 36 N. J. Eq. 330. 
 
 < Brewer V. Wall, 23 Tex. 585- 76 Am. Dec 76; Allison v. Shilling, 27 Te.x. 
 450; 86 Am. Dec. 632. 
 
 ^ Springle v. Shields, 17 Ala. 395. In this case it was held that the purchaser 
 could not demand a gross sum as the present value of the dower right, hut 
 
EIGHT OF PHECHASEE TO TAKE TITLE WITH COMPENSATION. 4 ( .) 
 
 elect to take the title with an abatement of the purchase monej' as 
 an indemnity against a possible claitn for dower in the future, he 
 cannot be compelled so to do. It is well settled that a purchaser 
 cannot be compelled to take the property with indemnity against 
 any loss that may accrue from a defective title.^ 
 
 § 200. EXCEPTIONS TO GENERAL 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 .^ 
 I^either 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 tlie 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 was defective.* 
 
 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. 
 
 ' Post, § 337. 
 
 n Sugd. Vend. (8th Am. ed.) 480. In Bailey v. James, U Urat. (Va.) 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 cause 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 the title is good, and rescind as 
 to the other part. 
 
 3 Wilhams v. Edwards, 2 Sim. 78. 
 
 ■•Pomeroy Sp. Perf. § 442. Lucas v. Scott, 41 Ohio St. 635. Love v. Camp, 
 6 Ired. Eq. (N. C.) 309. James v. Lichfield, L. R,, 9 Eq. 51. Peeler v. Levy, 26 
 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 situation 
 from which he cannot extricate himself without loss. 2 Chitty Cont. (11th Am. 
 ed.) 1490; Fry on Spec. Perf. § 795, n. 2. Nclthorp v. Howgate, 1 Coll. 223. Har- 
 nett V. Yielding, 2 Sch. & Lef. 559. Wiswall v. McGowan, 1 HoflE. Ch. (N. 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 con- 
 currence of a third person, and then, when consent or concurrence is refused by 
 
476 MARKETABLE TITLE TO REAL ESTATE. 
 
 This exception, nowever, seems not to have been recognized in 
 those cases in which specific performance in favor of the purchaser 
 with indemnity against an incohate right of dower has been decreed.* 
 JSTor 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 con- 
 tract, at the time stipulated.' ITor where the contract is to convey 
 the fee upon a contingency which has not happened ; in such case 
 the purchaser cannot insist on the conveyance of a less estate, with 
 abatement of the purchase money.' 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 per- 
 fected within the time agreed, elect to take such title as the vendor 
 can make ; for the contract in that event is absolutely at an end.* 
 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 unmarketable as to part of the 
 property, the purchaser cannot elect to take the rest with compen- 
 sation for defects.^ 
 
 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 oft'er to sell on the 
 one part and an unconditional acceptance on the other, and will not 
 
 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 extra- 
 ordinary aid of a court of conscience in repairing the loss he has sustained by 
 non-fulfillment of the contract." 
 
 ' Ante, " Indemnity against Dower," § 199. And see Fry Sp. Perf. (3d Am. ed.) 
 § 1331, 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, 3 Barb. (N. Y. S. C.) 37. 
 
 * Weatherf ord v. James, 3 Ala. 170. Here the vendor agreed to sell the interest 
 of his wife, an Indian woman, provided he could obtain authority from con- 
 gress . He failed in this, and the purchaser asked that he be compelled to convey 
 his life estate as tenant by the curtesy. Specific performance was refusedi 
 
 ^ Post, this chapter. Mackey v. Ames, 31 Minn. 103. 
 
 ' Williams v. Edwards, 3 Sim. 78. 
 
EIGHT OF PURCHASER TO TAKE TITLE WITH COMPENSATION. 477 
 
 be deemed complete if the acceptance be conditioned upon the state 
 of the title, to be afterwards ascertained. Thns, where the offer to 
 sell was accepted " provided the title is perfect," the court refused 
 to compel the vendor to accept the purchase money and convey the 
 property to the purchaser, holding the contract to be incomplete.' 
 But it has been held that a condition in the offer stands upon a dif- 
 ferent 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, provided a 
 certain lawyer pronounced the title good, and the purchaser 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.' 
 
 It has been said that if, at the time oi the contract, the purchaser 
 is fully aware that the vendor cannot execute the agreement, it will 
 be presumed that the agreement is founded in mistake ; and the 
 purchaser cannot insist upon a performance as to the interest to 
 which the vendor may be actually entitled.' 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 ojjportunity to perform the 
 contract and make the appropriate abatement or compensation. He 
 should not needlessly involve the vendor in the expense of a chan- 
 cery suit.^ If the purchaser elect to take title to part of the prem- 
 ises 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.^ 
 
 § 201. RIGHT OF VENDOR TO RESCIND WHERE THE TITLE 
 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 
 
 > 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. (8tli Am. ed.) 467, citing Lawrenson v. Butler, 1 Sch. & Lef. 
 13; Mortlock v. Butler, 10 Ves. 392; Colyer v. Clay, 7 Beav. 189. But see Fry 
 Sp. Perf. (3d Am. ed.) § 1331. 
 
 <Bell V. Thompson, 84 Ala. 633; Long v. Brown, 4 Ala, 626. 
 
 ' Perkins v. Hadley, 4 Hayw. (Tenn.) 148. 
 
478 MAEKETABLE TITLE TO REAL ESTATE. 
 
 the contract in case it should appear that the title is defective.' 
 But if the contract provide that the purchase money shall be 
 refunded if the title prove defective,^ or that in such event the pur- 
 chaser shall not be required to pay the purchase money ,^ the vendor 
 cannot avail himself thereof to rescind the contract without the 
 consent of the purchaser. Inasmuch as the purchaser has, gener- 
 ally, 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,* unless he could show a mutual 
 mistake of fact or fraud'' on the part of the purchaser with respect 
 to the title, or unless he had reserved the right to rescind if the title 
 should prove defective. Even though he reserve that right, it has 
 been held that he must make reasonable efforts to perfect the title 
 before he will be permitted to rescind.^ 
 
 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, 
 
 ' Mawson v. Fletcher, L. R., 10 Eq. 212; Woolcot v. Peggie, L. R., 15 App. 
 Caa. 42. 
 
 ^ Hale V. Cravener, 128 111. 408; 21 N. E. Rep. 534. See, also, Sloane v. Wells, 
 (HI.) 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: If the contract contains no distinct and independent agreement to 
 convoy, 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 tho 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. 
 
 3 Roberts v. Wyatt, 2 Taunt. 268. 
 
 •Rohr V. Kiendt, 3 W. & S. (Pa.) 563; 39 Am. Dec. 53. 
 
 ' If the parties during their negotiations assume the existence of an incum- 
 brance on tho 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 
 the defect 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. 
 
 'Bibb V. Wilson, 31 Miss. 624. 
 
EIGHT OF PtJECHASEE TO TAKE TITLE WITH COMPENSATION. 479 
 
 the vendor shall be at liberty, by notice in writing, to rescind tliis 
 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 snch 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.* 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.^ But if judg- 
 ment in ejectment be recovered against the grantee, and the grantor 
 satisfies his warranty by returning the purchase money, with inter- 
 
 'Ashburner v. Sewell, L. R., 3 Ch. Div. 405 (1891). We have seen that in 
 America the purchaser cannot insist on specific performance where the contract 
 provides that the agreement shall be at an end if the title be found to be not 
 good. Ante, p. 476. 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, not- 
 withstanding 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. R, 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 
 aveiTed 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 ijppear. And even if the former, it is against 
 just such mistakes that purchasers protect themselves 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 virtu- 
 ally 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 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.) 338. 
 
480 MARKETABLE TITLE TO EEAL ESTATE. 
 
 est, to the grantee, lie will be entitled to a reconveyance of the 
 premises.^ 
 
 The vendor electing to rescind the contract where he has reserved 
 that privilege, must, of course, return the purchase money if any 
 has been paid.^ 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.^ On rescission of a contract, each party must, as far 
 as possible, be placed in statu quo. 
 
 'Williams v. Pendleton, 1 T. B. Mon. (Ky.) 188. 
 
 'Benson v. Shotwell, 87 Cal. 49; 25 Pac. Eep. 349. Drew v. Smitli, 7 Minn. 
 301 (231). 
 ^DaM V. Pross, 6 Minn. 89 (38). 
 
CHAPTER XIX. 
 
 OF THE RIGHT OF THE PURCHASER TO PERFECT THE TITLE. 
 
 BY THE PURCHASE OF ADVERSE CLAIMS. § 203. 
 
 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.' 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,^ unless he has been legally evicted, and has repurchased 
 
 iCorbally v. Hughes, 59 Ga. 493. Hill v. Samuel, 31 Miss. 306. Ash v. 
 Holder, 36 Mo. 163. It is said in this case that the rule is different where a con- 
 veyance has been made ' ' because then the vendee owes the vendor no faith or 
 allegiance, but holds adversely to him and all the world. " 
 
 n Warv. Vend. §g 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 liim to avail himself of the purchase against the vendor, 
 but, allowing him the price paid for it, will compel him to perform his original 
 contract." Citing Murrell v. Goodyear, 31 Giff. 51; affd., 1 DeG., F. & J. 433; 
 Lawless v. Mansfield, 1 Dru. & War. 557. Harper v. Reno, 1 Freem. Ch. 
 (Miss.) 333; Hill v. Samuel, 31 Miss. 305; Hardeman v. Cowan, 10 Sm. & 
 M. (Miss.) 487; Champlin v. Dotsou, 13 Sm. & M. (Miss.) 554; 53 Am. Dec. 
 103; Harkreador 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. Lewis v. Boskins, 37 Ark. 61. Strong v. Waddell, 56 Ala. 
 471; Mumford v. Pearce, 70 Ala. 453. Beall v. Davenport, 48 Ga, 165; 15 Am. 
 Rep. 656. Wilkinson v. Green, 34 Mich. 331. Cowdry v. Cuthbert, 71 Iowa, 
 733; 39 N. W. Rep. 798, where the purchaser bought in a tax title under a tax 
 sale made prior to his purchase. Roller v. Efflnger, (Va.) 14 S. E. Rep. 337. 
 Morgan v. Boone, 4 Mon, (Ky.) 391, 398.;. 16 Am, Dec. 153. Wood v. Perry, 1 
 Barb. (N. Y.) 115, 134; Foster v. Herkimer Mfg. Co., 13 Barb. (N. Y.) 353. Ren- 
 shaw V. Gans, 7 Pa. St. 117. Ramsour v. Shuler, 3 Jones Eq. (N. C.) 487, a case 
 in which the purchaser got in the outstanding title for a trifling sum, and which 
 well illustrates 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 
 executed. See cases cited, ante, § , and Rawle Govts. (5th ed.) § 193. Baker 
 V. Corbett, 38 Iowa, 317. The purchaser cannot resist the payment of the pur- 
 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 purchaser) 
 61 
 
482 MAEKETABLE TITLE TO KEAL ESTATE. 
 
 the property under a new and distinct title.^ Of course he may- 
 rescind the contract, surrender the possession, and then acquire the 
 adverse title and set it up agaiast the vendor.^ 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.^ 
 A familiar illustration of these principles is afforded by the rule 
 that a purchaser from one who holds under a void patent cannot enter 
 
 has procured a conveyance from suoli 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 neces- 
 sary for his indemnity. Menifee v. Marye, (Va.) 4 S. E. Rep. 726. In Louisiana, 
 the fact that the purchaser bnys 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. 731. 
 
 ' Martin v. Atkinson, 7 6a. 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, 13 How. (U. S.) 34, 31, dictum; Willison 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 declines 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 fur- 
 nish evidence that he had occupied 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 acquired from a stranger, as against his vendor. 
 
 In Shelly v. Mikkelson, (N. Dak.) 63 N. W. Rep. 210, the vendor abandoned 
 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, p. 386. 
 
OF THE EIGHT OF. THE PUECHASEE TO PEEFECT THE TITLE. 483 
 
 and locate the land for himself, and then seek to rescind his con- 
 tract and avoid the payment of the purchase money.^ Of course 
 the legal title acquired by the purchase from the adverse claimant 
 is not affected by the relations existing between the vendor and 
 Yendee. 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.^ Nor does the purchase 
 of an outstanding title amount to an election on the part of the 
 purchaser to rescind the contract, nor deprive him of his rights 
 thereunder against the vendor.' 
 
 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 eitlier case the principle upon which relief is afEorded 
 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 
 vras one to which he must have yielded ; ■* in other words, the trans- 
 action must have been such as would amount to a constructive evic- 
 tion.^ In a case in which the purchaser bought in an adverse claim, 
 
 ' Searcy V. Kirkpatrick, 1 Overt. (Tenn.) 421. Galloway v. Finley, 13 Pet. 
 (II. S.) 264, -where held also that he could not be allowed for expenses of the 
 entry and survey, the same having been made for the purpose of defeating his 
 vendor's title. Thedgill v. Pintard, 12 How. (U. S.) 24. Gallagher v. Wither- 
 tagton, 39 Ala. 430. See post, "Estoppel," § 219. 
 
 ' Language of Agnew, J. , in Thompson v. Adams, 55 Pa. St. 479. 
 
 '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.) 368, the chancellor doubted whether relief should be given the purchaser in 
 consequence of an outstanding claim which he for greater caution chooses to 
 liuy in before it has received judicial sanction, in a suit to which all persons in 
 interest were parties, or were called upon to assert their title. 
 
 ' Ante, p. 856. 
 
484 MARKETABLE TITLE TO EEAL ESTATE. 
 
 and it did not appear whether the title so acquired was paramount 
 or not, it was held that the court erred in decreeing against the pur- 
 chaser without referring the case to a commissioner to inquire into 
 the validity of the adverse claim.^ The price paid by the pur- 
 chaser, however, to obtain the outstanding title is not conclusive of 
 the value of that title, and it devolves upon him to show that such 
 price was not in excess of the value of the outstanding interest. 
 He will receive credit on the purchase money only for the actual 
 value of the adverse title so acquired.' Where the purchaser buys 
 in an inchoate right of dower, he will not be . allowed the sum so 
 expended, unless he shows that such sum was the fair value of the 
 right.^ 
 
 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 witii 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.* 
 
 § 203. BY THE DISCHARGE OF LIENS AND INCUMBRANCES. 
 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.^ The existence of an 
 
 ' 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. 128; 39 N. E. Rep. 592. 
 
 ■■Post, "Estoppel," §318. 
 
 ' 2 Sugd. Vend. (8th Am. ed.) 301 (555). Smith v. Pettus, 1 Stew. & P. (Ala.) 
 107. Owens v. Salter, 38 Pa. St. 211, where the purchaser paid off certain tax 
 liens. "Washer v. Brown, 5 N. J. Eq. 81. In the English practice the purchaser 
 at a judicial sale may apply to the court for leave to pay off incumbrances oa 
 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 incom.- 
 petent to consent. 1 Sugd. Vend. (8th Am. ed.) 148. 
 
OF THE EIGHT OF THE PTJECHASEE TO PEEFECT THE TITLE. 485 
 
 incumbrance on the premises is no ground for rescission so long as 
 it may be discharged with the unpaid purchase money.' Having 
 paid off the incumbrance, the purchaser may, of course, demand a 
 specific performance of the contract.^ Such apphcations, however, 
 are infrequent except in connection with suits to stay tlie collection 
 of the purchase money. Or in a suit by himself for specific per- 
 formance, the purchaser may have the purchase money in his hands 
 applied to the discharge of incumbrances.^ In Alabama it has been 
 held that the amount so disbursed by the purchaser cannot avail 
 him as a set-off in an action for the purchase money, nor as a 
 defense under the plea of failure of consideration, and that his 
 'remedy is exclusively in equity.* But the rule is doubtless other- 
 wise 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 def(iat 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.' 
 This rule, however, does not apply where the purchase money had 
 not become due at the time of sale under the incumbrance,^ nor 
 where the vendor has expressly agreed to pay off the incumbrance.' 
 If the purchaser pays money generally to one having an incum- 
 brance on the premises, and also an unsecured debt against the 
 vendor, the money will be held to have been paid in discharge of the 
 incumbrance.' 
 
 The purchaser takes the risk of the validity of the incumbrance 
 
 ' Greenby v. Cheevers, 9 Johns. (N. Y.) 136. Irvin v. Bleakly, 67 Pa. St. 24. 
 
 ' A purchaser may buy in the land at a foreclosure sale under proceedings 
 against his vendor, and having thus extinguished the incumbrance, require 
 specific performance by the vendor. Berry v. Walker, 9 B. Mon. (Ky.) 464. 
 
 s As in Washer v. Brown, 1 Halst. (N. J. Eq.) 81. 
 
 « Cole V. Justice, 8 Ala. 793. 
 
 5 Mellon's Appeal, 33 Pa. St. 121; Clark v. Clark, 1 Grant (Pa.), 33; Harper 
 V. Jeffries, 5 Whart. (Pa.) 36; McGinnis v. Noble, 7 W. & S. (Pa.) 454; Garrard 
 V. Lautz, 2 Jones (Pa.), 186. 
 
 " Dentler v. Brown, 1 Jones (Pa.), 395; McGinnis v. Noble, 7 W. & S. (Pa.) 
 454. 
 
 ' Stevenson v. Mathers, 67 Iowa, 123. 
 
 8 2 Sugd. Vend. (8th Am. ed.) 301 (555), citing Brett v. Marsh, 1 Vern. 468; 
 Hayward v. Lomax, 1 Vern. 34; Peters v. Anderson, 5 Taunt. 596. 
 
486 MARKETABLE TITLE TO EEAL ESTATE. 
 
 whicli he removes and of the Hability of the vendor therefor.^ 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. 
 
 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 \vas made to secure 
 negotiable notes for the purchase money, and these have been 
 before maturity transferred to a purchaser for value, the mortgage 
 might still be enforced in favor of the transferee, notwithstanding 
 payment in full by the sub-purchaser to the original vendor, that is, 
 the mortgagee and payee of the notes.' 
 
 It has been held that a purchaser of lands with notice of a claim 
 against the land, will, if he pays the iDurchase money to the -^'endor, 
 be liable to the holder of the claim, to the extent of the purchase 
 money remaining unpaid when he received notice.* 
 
 The purchaser can have credit on the purchase money for no 
 more than the amount he actually pays out to remove the 
 incumbrance.^ 
 
 § 20i. SUBROGATION OF PURCHASER. The purchaser will not 
 only be entitled to credit on the purchase money for incumbrances 
 
 ' Ante p. 317, 357. 
 
 'Hardigree v. Mitchum, 51 Ala. 151. 
 
 'Windle v. Bonebrake, 33 Fed. Rep. 165. McLain v. Coulter, 5 Ark. 13. 
 
 * Green v. Green, 41 Ivans. 472; 21 Pac. Rep. 586, citing 2 Story Eq. (11th ed.) 
 p. 829; Bush Y. Collins, 35 Kans. 535; 11 Pac. Rep. 425, personal property. 
 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. 
 
 '2 Sugd. Vend. (8th Am. ed.) 202 (555), and cases there cited. In Bryan v. 
 Salyard, 3 Grat. (Va.) 188, a purchaser who was directed by decree to pay a sum. 
 of money to a third person out of the purchase money, and who obtained a com- 
 promise of the decree, was allowed only the sum actually paid by him, as a 
 credit on the purchase money. 
 
OF THE EIGHT OF THE PUECHASEE TO PEEFECT THE TITLE. 487 
 
 or liens which he discharges, but he will be subrogated to all the 
 rights, remedies and priorities of the incumbrancer against third 
 persons.^ As against the vendor, however, as before observed, he 
 can only claim reimbursement to the extent of the amount actually 
 paid out by him in discharge of the incumbrance.^ But to that 
 extent he will be subrogated to the benefit of the lien or incum- 
 brance as against the vendor as well as third persons. And inas- 
 much as the doctrine of subrogation is the creature of equity and in 
 no wise dependent upon or arising from contract between the par- 
 ties, and is enforced in favor of any person who is compelled to dis- 
 charge a lien or incumbrance foi- his protection, no reason is per- 
 ceived why the purchaser would not be entitled to the benefit of a 
 lien which he discharges, though he had accepted a conveyance 
 without covenants for title.^ 
 
 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.^ 
 
 'Sheld. Subrogation, § 28, et seq. See cases collected, 24 Am. &Eng. Encyc. 
 L. 353, et seq. Downer v. Fox, 30 Vt. 388. Champlln v. Williams, 9 Pa. St. 341. 
 Furnold v. Bank, 44 Mo. 336. Wall v. Mason, 103 Mass. 813. Peet v. Beers, 4 
 Ind. 46; Tro*ost v. Davis, 31 Ind. 34; Spray v. Rodman, 43 Ind. 225. The pur- 
 chaser 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.) 13 S. W. Rep. 267. 
 
 ' 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 buying 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; Mellon's Appeal, 33 Pa. St. 121. 
 
 ' Post, ch. 27, § 267. 
 
 ^Freeman Void Jud. Sales, g 50. Valle v. Fleming, 39 Mo. 153; 77 Am. Dec. 
 557; Henry v. McKerlie, 78 Mo. 416. Hudgin v. Hudgin, 6 Grat. (Va.) 330; 52 
 Am. Dec. 134. Blodgett v. Hitt, 29 Wis. 184. Shepherd v. Mclntire, 5 Dana 
 (Ky.), 574; McLaughlin v. Daniel, 8 Dana (Ky.), 183. French v. Grenet, 56 
 Tex. 273. 
 
488 MABKETABLB TITLE TO REAL ESTATE. 
 
 The doctrine of subrogation is enforced only in courts of equity ; 
 hence, he who seeks this form of reHef must himself do equity. 
 Therefore, it has been held that a subsequent purchaser, with notice 
 of the prior purchase, who pays off a lien on the land, will not be 
 substituted to its benefit, so as to deprive the first purchaser of his 
 bargain.* If, however, he receives notice after he has paid the pur- 
 chase money, no reason is perceived why he should not be per- 
 mitted to protect himself by acquiring the rights of outstanding 
 incumbrancers. 
 
 " Bates V. Swiger, (W. Va.) 21 S. E. Rep. 874. 
 
CHAPTER XX. 
 OF SPECIFIC PERFORMANCE OF COVENANTS FOR TITLE. 
 
 GENERAL RULES. § 205. 
 
 COVENANT AGAINST INCTJMBBANCES. § 206. 
 
 CONVEYANCE OF AETER-ACaXJIRED ESTATE. § 207. 
 
 § 205. GENERAL RULES. Specific performance of an executory 
 contract for the sale of lands consists, on the part of the vendor, in 
 the delivery of possession to the purchaser and in the execution of 
 a proper deed, conveying such an estate as the contract requires ; 
 and on the part of the vendee, in the payment of the purchase 
 money and the acceptance of such conveyance. Applications 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.' 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 com- 
 pelled to pay off and discharge all such charges on the land.^ 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 
 such incumbrances as may have been created by himself or those 
 claiming under him.' 
 
 1 Va. Code, 1887, § 2451. 
 
 ' 2 Sugd. Vend. (8th Am. ed.) 285; Rawle Govts. (5th ed.) §§ 104, 362. Stock 
 V. Aylward, 8 Ir. Ch. 429. Nelson v. Harwood, 3 Call (Va.), 342. 
 
 » Rawle Covts. §§ 105, 863, citing Armstrong v. Darby, 26 Mo. 517, which, 
 however, was not a suit for specific performance, but an action in which the 
 62 
 
490 MARKETABLE TITLE TO REAL ESTATE. 
 
 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 niade.^ It has 
 been said that the jurisdiction of equity in tlie specific perfoniiance 
 of covenants for title has been exercised in marshalling the assets of 
 a bankrupt's or decedent's estate.^ 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 
 the heirs or estate of the covenantee upon his covenants.^ 
 
 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."* 
 
 By analogy to the rule that a covenantee paying off incumbrances 
 upon the premises cannot recover damages against the covenantor 
 in excess of the purchase money and interest, it would probably be 
 held that the latter could not be compelled to remove an incum- 
 brance which exceeded the purchase money and interest.' It has 
 been so held where the conveyance contained a covenant of war- 
 7'a)dy, but no covenant against incumbrances." 
 
 plaintifE 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. 
 
 iRawle Govts. (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." 
 
 2 Rawle Govts. (5th ed.) § 364. 
 
 ^ As in Higgins v. Johnson, 14 Ark. 309; 60 Am. Dec. 544. Hafley v. Birchette, 
 11 Leigh (Va.), 83. 
 
 " Tallman v. Green, 3 Sandf. (N. Y.) 437. Tufte v. Miller, 10 Ohio, 382. 
 
 ' Ante, p. 311. 
 
 " East Tenn. Nat. Bank v. First Nat, Bank, 7 Lea (Tenn.), 420. In this case 
 the purchaser took a conveyance with warranty, and afterwards discovered that 
 the vendor had fraudulently concealed the existence of a prior vendor's lien on 
 the premises much exceeding the consideration money. It was held that he was 
 entitled to a rescission of the contract on the ground of fraud, but that there bein^ 
 no covenant against incumbrances the grantor could not be required to remove 
 the vendor's lien. 
 
OF SPECIFIC PEKFORMANCE OF COVENANTS FOE TITLE. 491 
 
 § 206. COVENANT AGAINST INCUMBRANCES. "Whether undei" 
 a covenant against incumbrances alone, the grantor can in equity be 
 compelled to remove an incumbrance on tlie premises, seems to be 
 a doubtful question. Mr. Kawle expresses his opinion in tlie nega- 
 tive, 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.' There are cases, however, which hold the 
 affirmative of this question, and, to our minds, establish the better 
 doctiine.^ There seems to be little reason or justice in a rule which, 
 after the purchaser has exhausted all his resources in paying for the 
 property, requires him to submit to an eviction under an incum- 
 brance 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.* 
 
 § 20Y. CONVEYANCE OF AFTER-ACaTJIIlED 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 estop 
 the grantor from afterwards asserting an after-acquired title to the 
 estate, and that it has been sometimes held that the estoppel itself 
 
 ' Rawle Govts, for Title (5th ed.), § 361. 
 
 ' 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 per- 
 formance) 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 Gas. in Gh. 146; Power v. Standish, 8 Ir. Eq. 536. Bur- 
 roughs V. McNeill, 3 Dev. & Bat. Eq. (N. C.) 397. See, also, other cases cited 
 Rawle Govts, for Title (5th ed.), p. 610, n. Gontra, 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 warranty instead 
 of a covenant against incumbrances. The cases, however, are not parallel; the 
 difference is, that the incumbrancer is bound to receive payment of his incum- 
 brance 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. 
 
492 MAEKETABLE TITLE TO EBAL ESTATE. 
 
 operates as a conveyance to the covenantee.' IN^evertheless, under 
 a covenant for further assurance, the grantee may in equity com- 
 pel the grantor to convey to liim the after-acquired title, if he 
 should deem sucli a conveyance necessary or expedient.' And even 
 in the absence of a covenant for future assurance, it is apprehended 
 that a court of equity would compel a conveyance of the after- 
 acquired title to the grantee.' 
 
 'Post, "Estoppel," p. 520. 
 
 « 2 Sugd. Veud. (8th Am. ed.) 294 (613); 3 Washb. B. Prop. (4tli ed.) 479 (667); 
 Bawle Govts. (5th ed.) § 362. Taylor v. Debar, 1 Ch. Cas. 274. Heath v. Crea- 
 lock, 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, ob. diet. 
 Reese v. Smith, 12 Mo. 351, oh. diet. Henderson v. Overton, 3 Yerg. (Tenn.) 397; 
 24 Am. Dec. 492, ob. 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.) 538, it is said that if a man sell an estate to which he has no title, 
 and after the eonveyance acquire the title, he will be compelled to convey it to the 
 purchaser. The proposition is not restricted to cases in which there are cove- 
 nants for title. See, also, Carne v. Mitchell, 10 Jur. 909. 
 
CHAPTER XXI. 
 ESTOPPEL OP THE GRANTOR. 
 
 GENERAL RULES. § 208. 
 
 AFTER-ACauiRED ESTATE MUST BE HELD IN SAME BIGHT. 
 
 §209. 
 MUTUAL ESTOPPELS. § 310. 
 ESTOPPEL OF MORTGAGOR. § 211. 
 
 EFFECT OF VOID CONVEYANCE AS AN ESTOPPEL. § 213. 
 EFFECT OF ESTOPPEL AS AN ACTUAL TRANSFER OF THE 
 
 AFTER-ACaUIRED ESTATE. § 313. 
 RIGHTS OF PURCHASER OF THE AFTER-ACQUIRED ESTATE 
 
 FROM THE COVENANTOR. § 214. 
 COMPULSORY ACCEPTANCE OF THE AFTER-ACftUIRED ESTATE 
 
 IN LIEU OF DAMAGES. § 315. 
 WHAT COVENANTS "WILL PASS THE AFTER-ACftUIRED ESTATE. 
 
 §216. 
 ESTOPPEL NOT DEPENDENT ON AVOIDANCE OF CIRCUITY OF 
 
 ACTION. § 217. 
 EFFECT OF ftUIT-CLAIM BY WAY OF ESTOPPEL. § 218. 
 ESTOPPEL OF GRANTEE. § 219. 
 RESUME. § 230. 
 
 § 208. GENERAL RULES. Estoppels are of two kinds : Ist. 
 Estoppel injtais, or that which arises from the acts and conduct of the 
 party ; thus, if I induce another to purchase property by representing- 
 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 estopped or 
 precluded from afterwards asserting that claim as against the vendor 
 or his assigns.^ 2d. Estoppel by deed, or that which arises from 
 the cov^enants or recitals in a deed, by which the gi'antor makes it 
 appear that he is the rightful owner of the estate therein described ; 
 in such a case if the grantor have no title at the time of the convey- 
 ance, hut 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.^ The reason of this 
 
 ' 2 Sugd. Vend. (Sth Am. ed.) .507 (743). ~ 
 
 »Washb. Real Prop. 69; Bigelow Estoppel, p. 453; Rawle Govt. § 250; Gr. 
 Cruise Dig. ch. 26, § 51; Judge Hare's note, 3 Sm. L. Cas. (ed. 1866) 723. Wat- 
 kins v. Wassell, 15 Ark. 73. Doe v. Quinlan, 51 Ala. 539. Klumpki v. Baker, 
 68 Gal. 559; 10 Pac. Rep. 197. O'Buanon v. Paremour, 34 Ga. 489; Linsey v. 
 Ramsey, 23 Ga. 637; Parker v. Jones, 57 Ga. 304. Hoppin v. Hoppin, 96 111. 365; 
 
494 MARKETABLE TITLE TO EEAL ESTATE. 
 
 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 covenantee 
 where he has sustained no actual damage from a breach of the 
 ■covenant.' The history of the doctrine of estoppel by deed as 
 derived from common-law sources, is somewhat without the plan 
 and scope of this work. The reader desirous of pursuing liis 
 investigations in that direction is referred to the special treatises 
 upon that subject.^ 
 
 The estoppel operates to depirive the covenantor of the after- 
 acquired estate as well where he had a present right or interest 
 which passed at the time of the grant as where nothing whatever 
 passed.^ The rule is otherwise in case of a lease ; if the lessor 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.* 
 
 Jones V. King, 25 111. 384. Logan v. Steele, 4 T. B. Mon. (Ky.) 430; Dickinson 
 V. Talbot, 14 B. Mon. (Kj-.) 49 (65); Logan v. Moore, 7 Dana (Ky.), 74. Williams v. 
 Williams, 31 Me. 392. Funk v. Newcomer, 10 Md. 301; Williams v. Peters, 
 Q/ld.) 20 Atl. Rep. 175. Lee v. Clary, 38 Mich. 223; Smith v. Williams, 44 
 Mich. 240; 6 N. W. Rep. 662. Kaiser v. Earhart, 64 Miss. 493; 1 So. Rep. 635. 
 Jewell V. Porter, 11 Post. (N. II.) 39 ; Thorndike v. Norris, 4 Post. (N. H.) 
 454. Gough V. Bell, 21 N. J. L. 156; Moore v. Rake, 26 N. J. L. 
 587. Jackson v. Winslow, 9 Cow. (IST. Y.) 18. Wellborn v. Pinley, 7 
 Jones L. (N. C.) 238. 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), 33; Reeder v. Craig, 8 McCord (S. C), 411; Wingo v. Parker, 19 
 S. C. 9. 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. Mann 
 V. Young, 1 Wash, (T'y.) 454. Mitchell v. Petty, 2 W. Va. 470; 98 Am. Dec. 
 777. Wiesner v. Zaun, 39 Wis. 188. Mc Williams v. Nisley, 2 S. & R. (Pa.) 
 507; 7 Am.. Dec. 654; Logan v. Nelll,128 Pa. St. 457; 18 Atl. Rep. 343. Burtners 
 V. Keran, 24 Grant (Va.), 42; Raines v. Walker, 77 Va. 92. The shallow device 
 of taking the after-acquired title in the name 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. — ; 9 So. Rep. 495. 
 
 ' Cases cited in last note. See, also, post, § 217. 
 
 ' Bigelow on Estoppel, p. 339; Rawle Govts, for Title (5th ed.), ch. 11, p. 331. 
 
 2 House V. McCormick, 57 N. Y. 319. 
 
 *4 Kent Com. 98. House v. McCormick, 57 N. Y. 319. Walton v. Waterhouse, 
 ■2 Saund. 415. 
 
ESTOrPEL OF THE GEANTOE. 495 
 
 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 execution on 
 the judgment to which they were parties.' 
 
 If the covenantor discharge an incumbrance on the land, payment 
 of which had been assumed by the grantee, he will not be estopped 
 by his warranty from enforcing such incumbrance by way of sub- 
 rogation to the rights of the incumbrancer.^ 
 
 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 bene- 
 fit of the covenantee.^ It has been held that this rule does not apply 
 where the covenantor, instead of disseising the covenantee, merely 
 remains in possession, without color of title, for the statutory 
 period.* 
 
 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 tlie grantor.^ Such assets, it is apprehended, will 
 
 ' Post, § 218. Bigelow Estoppel (3d ed.), 333. Henderson v. Overton, 3 Ycrg. 
 (Tenn.) 394; 24 Am. Bee. 492. Emerson v. Sansome, 41 Gal. 552. Frey v. Raw- 
 son, 66 N. C. 466. Bougald 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. 
 
 3 Franklin v. Borland, 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. Cf. Wlck- 
 low V. Lane, 37 Barb. (N. Y.) 244. Stearns v. Hendersass, 9 Cush. (Mass.) 497; 
 57 Am. Dec. 65. Smith v. Montes, 11 Tex. 24; Harn v. Smith, 79 Tex. 310. 
 Hines v. Robinson, 57 Me. 330; 99 Am. Bee. 772. Eddleman v. Carpenter, 7 
 Jones L. (N. C.) 616. 
 
 * 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 possession 
 had not been given as where it had been given and had been followed by an 
 actual disseisin. In Reynolds v. Cathens, 5 Jones L. (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 tlie covenantee. 
 
 5 3 Tucker Bl. Com. 303, n. 8. Chauvin v. Wagner, 18 Mo. 531, 553. Nunally 
 V. White, 3 Met. (Ky.) 593. In Logan v. Moore, 1 Bana (Ky), 57, it was held 
 that the heir was barred to the extent of the value of the land at the time he 
 
496 MARKETABLE TITLE TO REAL ESTATE. 
 
 include personal estate, in those States in which the entire estate of 
 a decedent, real as well as personal, is made assets for the payment 
 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, the 
 grantor ; ' 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 wa;s agreed 
 that the grantee should hold tlie property merely as trustee for sale 
 and payment of the grantor's debts. He cannot by parol do away 
 with his covenant of warranty.^ 
 
 No estoppel arises where the grantor's covenants liave been extin- 
 guished ; as where he conveyed the land to one through whom by 
 mesne conveyances he acquires tlie title.' Thus, if A. convey to B. 
 with warranty, and B. convey to C, and then C. conveys to A., tiie 
 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 covenant of 
 warranty shall estop the grantor from setting up an after-acquired 
 estate, it must appear that the title to such estate is adverse and not 
 
 received it from the ancestor, and not merely to the extent of the value at the 
 date of the warranty of the laud claimed. The heir had brought ejectment for 
 the land, setting up an after-acquired title. 
 
 iRuss V, Alpaugh, 118 Mass. 369; 19 Am. Rep. 464. Foote v. Clark, 103 Mo. 
 394; 19 8. W. Rep. 981. 
 
 = Rathbun v. Rathbun, 6 Barb. (N. Y.) 107. 
 
 8 Goodel V. Bennett, 23 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 warranty, con- 
 veyed that fourth to A., it was hold 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. 
 
ESTOPPEL OF THE GRANTOR. 
 
 497 
 
 subordinate to the title conveyed by the grantor.' A covenant of 
 general warranty in a deed will not estop the grantor from claiming 
 a breach of explicit conditions in the granting part of the deed 
 restricting the future use of the property.^ 
 
 Neither the grantor nor his heirs or his representatives will be 
 estopped to show that the deed was obtained through the fraud of the 
 vendee, even as against a subsequent purchaser without notice, and 
 though the purchase money was received after notice of tlie fraud.* 
 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.* ISTo 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 had on account of 
 fraud. A new contract for additional consideration may be made, 
 but the old is forever gone ; once a cheat, the thing so remains.'' 
 
 § 209. AFTEB-ACaUIRED 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 conveyance was made. Thus if 
 he convey in his individual capacity, and reacquire the estate in a 
 fiduciary capacity," e. g., as trustee express or implied,' 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 anotlier, and then con- 
 
 iThielen 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, hut 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. con- 
 veyed 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. 
 
 2 Linton v. Allen, 154 Mass. 432; 28 N. E. Rep. 780. 
 
 ' Jackson v. Summerville, 13 Pa. St. 359. 
 
 ^Id. Gilbert v. Hoffman, 3 Watts (Pa.), 66; 36 Am. Dec. 103; Smull v, Jones, 
 1 W. & S. (Pa.) 138. 
 
 'Language of Coulter, J., in Jackson v. Summerville, supra. Duncan v. 
 McCullough, 4 S. & R. (Pa.) 485; Chamberlain v. McClurg, 8 W. & S. (Pa.) 36. 
 Co. Litt. 314b. 
 
 • Jackson v. Hoffman, 9 Cow. (N. Y.) 371; Sinclair v. Jackson, 8 Cow. (N. Y.) 
 587, semble. 
 
 ' Kelly V. Jenness, 50 Me. 455. Gregory v. Peoples, 80 Va. 355. 
 63 
 
498 MARKETABLE TITLE TO REAL ESTATE. 
 
 veyed to tliat otlier, it was held that he was not estopped from after- 
 wards acquiring the title and setting it up against the grantee.' 
 
 § 210. MUTUAL ESTOPPELS. If, for any reason, the covenantee 
 is estopped to pursue his remedy against the covenantor, in other 
 words, if tliei-e 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." ' Tlie simplest illustration 
 of this principle is furnislied 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 fi'om the 
 other.' 
 
 § 211. ESTOPPEL OF MORTGAGOR. A mortgage containing cove- 
 nants of warranty is as effectual to pass an after-acquired title as a 
 conveyance in fee.'' And a mortgage without warranty has been 
 held suiScient for that purpose.'^ But a covenant of warranty con- 
 tained in a purchase-money mortgage will not estop tlie mortgagor 
 to set up a subsequently acquired title against the mortgagee,'^ nor to 
 
 ' Jackson v. Jlills, 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. 
 
 'Com. Dig. Estoppel E.; Co. Litt. 3g2b; Rawle Covt. § 353. Kimball v. 
 SchofE, 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. 
 
 3 Grimes v. Redmon, 14 B. Mou. (Ky.) 234 (2d ed.) 189. Pugh v. Mayo, 60 
 Tex. 191. 
 
 * Jones Mortgages, §§561,682,835. Judge Hare's note to Duchess of Kings- 
 ton'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. 335. Clark v. Baker, 14 
 Cal. 613; 76 Am. Dec. 449. Chamberlain v. Meeder, 16 N. H. 381. Cross v. 
 Robinaon, 31 Conn. 387. Plowman v. Shidler, 36 Ind. 484; Boone v. Armstrong, 
 87 Ind. 169; Randall v. Lower, 98 Ind. 356. 
 
 ' Stewart v. Anderson, 10 Ala. 504. 
 
 «Bigelow Estoppel (4th ed.), 403; Rawle Covt. § 367; Co. Litt. 390. Haynes v. 
 Stevens, 11 N. H. 33. Randall v. Lower, 98 Ind. 356. Ingalls v. Cook, 31 Iowa, 
 560. Brown v. Staples, 28 Me. 497; 58 Am. Dec. 504; Hardy v. Nelson, 27 Me. 
 538; Smith v. Cannell, 33 Me. 125. Geyer v. Girard, 23 Mo. 160; Connor v. 
 Eddy, 25 Mo. 72. Kellogg v. Wood, 4 Paige (N. Y.), 77. Lot v. Thomas, Penn. 
 
ESTOPPEL OF THE GEANTOE. 499 
 
 recover on the covenants in the original conveyance by the mort- 
 gagee,' the deed and purcliase-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."^ 
 
 If the owner of land execute a second mortgage on it with cove- 
 nants of warranty and against incumbrances, and afterward pay off 
 the first mortgage, the payment enures to the benefit of the second 
 mortgagee, and the grantor is estopped from claiming to be subro- 
 gated to the benefit of the first mortgage.^ 
 
 § 212. EITECT OF VOID CONVEYANCE AS AN ESTOPPEL. 
 The rule that an after-acquired title passes to the grantee by virtue 
 of the grantor's covenant of warranty has been held not to apply 
 where the conveyance is prohibited by law, e. g., a conveyance of 
 premises in the possession of an adverse claimant.* In those States, 
 
 (N. J.) 300; 2 Am. Dec. 354. Sumner v. Barnard, 33 Met. (Mass.) 461; Hancock 
 V. Carlton, 6 Gray (Mass.), 61; Pike v. Goodnow, 12 Allen (Mass.) 474. A con- 
 trary decision appears to have been made in Hitchcock v. Fortier, 65 111. 239. 
 Here the land was conveyed without 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 Govt. (5th ed.) p. 
 425; Bigelow Estoppel (4th ed.), 404. One who gives a purchase-money mort- 
 gage that includes other lands not granted him by the mortgagee, will not be 
 estopped as against the mortgagee to set up an after-acquired title to those lands. 
 Brown v. Phillips, 40 Mich. 264. 
 
 ' Resscr v. Carney, (Minn.) 54 N. W. Rep. 89. 
 
 'Randall v. Lower, 98 Ind. 256. 
 
 a 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. 136. 
 Hooper v. Henry, 31 Minn. 264; 17 N. W. Rep. 476. 
 
 * Kennedy v. McCartney, 4 Port. (Ala.) 141, 158, the court saying that the cove- 
 nantor is not estopped where he is Inhibited from selling by the letter, spirit or 
 policy of a legislative act. Kercheval v. Trlplett, 1 A. K. Marsh. (Ky.) 493. 
 
500 MARKETABLE TITLE TO REAL ESTATE. 
 
 however, in which a champertons deed is held to be valid as between 
 the parties though void as to strangers, it is apprehended that the 
 after-acquired title would pass to the grantee.^ Upon the same prin- 
 ciple it has been held that no estoppel arises out of a fraudulent con- 
 veyance with covenant of warranty ; the subsequently-acquired title 
 cannot be thus made to enure to the benefit of the fraudulent 
 grantee, and the grantor be permitted to accomplish by indirection 
 what the law forbids to be directly done.' But where the rights of 
 creditors are not concerned, the fact that a deed is fraudulent, and 
 the fraud known to both parties, will not prevent an after-acquired 
 title from enuring to the grantee. In such a case the law will not 
 assist the grantor to avoid a consequence of his own fraud.' 
 
 If a deed, by reason of imperfect execution, be iusiifficient to pass 
 the estate, and the grantor having no title, afterwards acquire title, 
 it will not enure to the benefit of the grantee.* 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.^ Accordingly a deed insufficient for want of attesta^ 
 tion as required by law, was held not to estop the grantor, even 
 
 ' Farnum v. Peterson, 111 jMass. 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 hetweeu the parties to it. The grantee may avail himself of it 
 against the grantor by way of estoppel, or by suit upon the covenants; or he may 
 recover the land by an action in the name of the grantor. Although he has no 
 right of entry, yet if by lawful means he comes into possession, he may then avail 
 himself of the title of his disseised grantor, and, by uniting that to his own present 
 possession, defeat recovery by the intermediate disseisor. Wade v. Lindsay, 6 
 Met. (Mass.) 407, 413; Cleveland v. Flagg, 4 Cush. (Mass.) 76. And his title will 
 also be made good against any one attempting to set up a deed from his grantor 
 subsequent to his own. White v. Patten, 24 Pick. (Mass.) 324." 
 
 '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 acquiring the title. 
 
 s Barton v. Morris, 1.5 Ohio, 408. 
 
 < Wallace v. Miner, 6 Ohio, 367, 871. 
 
 ' Connor v. McMurray, 2 Allen (Mass.), 304. 
 
ESTOPPEL OF THE GEANTOE. 501 
 
 though it contamed a general warranty.- A distinction appears to 
 have been made between deeds, void for want of due execution, and 
 such as are insufficient for want of proper words of conveyance, as 
 respects their operation by way of estoppel. Thus it has been lield 
 that an instrument, void as a deed for want of words of grant, but 
 containing a general warranty, was sufficient to estop the grantor 
 from setting up an after-acquired title to the land;^ and that a deed 
 inoperative to convey a fee by way of grant, for want of words of 
 inheritance, wiU, if it contain a general warranty, have that effect 
 by way of estoppel.' 
 
 § 213. EFFECT OF ESTOPPEL AS AN ACTUAL TRANSFEB OF 
 THE AFTER-ACauiBED 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.* Tlie learned commentators 
 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 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 ■\\'ould seem to have little or no practical 
 value, but for the bearing which it has upon two other questions, 
 namely : (1) Whether one who purchases the after-acquired 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. 
 
 ' Patterson v. Pease, 5 Ohio, 191. 
 
 = Brown v. Manter, 1 Post. (N. H.) 528; 53 Am. Dec. 223. 
 
 •Terrett v. Taylor, 9 Cranch (U. S.), 53. Somes v. Skinner, 3 Pick. (Mass.) 60. 
 
 * This, while deprecated, is admitted by Mr. Rawle to he tlie rule in most of 
 
 the States. Govts, for Title (5th ed.), § 348. The actual transfer of the after- 
 
502 MAEKETABLE TITLE TO EEAL ESTATE 
 
 "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 efEect 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. B.?'GHTS OF PtrRCHASER OF AFTER-ACaiJIBED TITLE. 
 It seems to be a generally accepted rule throughout the United 
 
 acquired esta' e 1 1 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 any- 
 thing 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, 19 
 Conn. 226. Rigg v. Cook, 4 Gil. (111.) 336; 46 Am. Dec. 462. Bank v. Merse- 
 reau, 6 Barb. Ch. (N. Y.) 528. Middlebury College v. Cheney, 1 Vt. 349. Moore 
 V. Rake, 2 Dutch. (N". J.) 574; Vreelaud v. Blauvelt, 23 N. J. Eq. 488. Bell v. 
 Adams, 81 N. C. 118. Douglas v. Scott, 5 Ohio, 199. Bailey v. Hoppin, 13 
 R. I. 560. Barr v, Gratz, 4 Wh. (U. S.) 223; 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 eject- 
 ment by him, citing Hill Abr. 401. In Brown v. Manter, 1 Fost. (N. H.) 528; 53 
 Am. Dec. 323, 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, 34 Grat. 
 (Va.) 43, it was held that a deed of bargain and sale with warranty, while it 
 estopped the grantor from setting up title to the after-acquired estate, did not 
 operate as an actual transfer of that estate. Such an effect could be given only 
 to a fine, feoffment, common recovery, or other conveyance of like dignity, at 
 common law. Inasmuch as a deed of bargain and sale has, in America, com- 
 pletely superseded these ancient common-law modes of conveyance, and accom- 
 plishes all of their purposes, it is difficult to perceive why it should not be given 
 the same effect by way of estoppel. Mr. Rawle cites a large number of Ameri- 
 can cases to the proposition that the effect of a conveyance with covenants of 
 warranty is to actually transfer to the covenantee any title which the covenantor 
 may afterwards acquire. Examination of these cases will show, as observed by 
 Mr. Bigelow (Estoppel [4th ed.], 430), that in few, if any of them, was it neces- 
 sary 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 covenant. Those cases may be seen on 
 pp. 367, 380, Kawle 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. 
 
ESTOPPEL OF THE GEANTOB 503 
 
 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 
 tlie vendor's title' was admitted to record. If the I'ule 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 
 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 convey- 
 ance as against his grantee, but that the estoppel extends to a pur- 
 chaser 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 efEect of the estoppel is to actuallij transfer to the 
 grantee the after-acquired title and to override any subsequent 
 alienation of the premises by the grantor.' But this extension of 
 
 ' 2 Pom. Eq. Jur. (13th ed.) SJ 761, and cases there cited. Rawle Govt, (oth 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 aflEectation to cite authority for such 
 familiar knowledge. 
 
 '^ 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, 8 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 fol- 
 lowed in some States, has been criticised in others. * * * But it has been 
 too long established and acted on in Massachusetts to be changed, except by 
 legislation." Jarvis v. Aiken, 25 Vt. 635. Teftt v. Munson, 57 N. Y. 97. In 
 McCusker v. McEvoy, 9 R. I. 528; 11 Am. Rep. 395, 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. 181, 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 fol- 
 lows: "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 prop- 
 erty, for there is no rule of property involved in protecting a negligent purchaser 
 who buys what his vendor has not got to sell." Govts. (5th ed.) p. 424. 
 
504 MARKETABLE TITLE TO EEAL ESTATE 
 
 the doctrine of estoppel lias been denied by the courts of other 
 States, and vigorously combated by able and discriminating text- 
 writei's.' 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 
 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 iirst 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 
 
 ' Judge Hare's note, Doe v. Oliver, 3 Sm. L. Cas. 700. Calder v. Chapman, 
 52 Pa. St 359; 91 Am. Dec. 163, overruling in effect Brown v. McCormick, 6 
 Watts (Pa.). 60; 21 Am. Dec. 450. Dodd v. AViUiams, 3 Mo. App. 278. Burke v. 
 Beveridge, 15 J[inn. 181. May v. Arnold, 18 Ga. 181; Faircloth v. Jordan, 18 
 Ga. 352. A purchaser is not required to search for incumbrances upon the prem- 
 ises executed by his grantor prior to the time when he obtained title. Farmers' 
 Loan & Tr. Co. \ . Jialtby, 8 Paige (N. Y.), 361. Doswell v. Buchanan, 3 Leigh 
 ( Va.), 365; 23 Am. Dec. 280, ^vhere the same rule was applied, though the grantor 
 had the equitable title. See Judge Hake's note, Doe \ . Oliver, 2 Smith's L. C. 
 VOO, where it is said: " The strongest arg\iment against permitting the covenants 
 or recitals in a deed to extend bej'ond 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 purchasers who have expended their money in good faith and with- 
 out being guilty of negligence. Such a result seems to be at variance with the 
 recording acts of the country, which are generally held not to require an exam- 
 ination 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 ANhich 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, thcrefoi-e, more consistent with reason, as well as with 
 ju-inciple, 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 unmanageable 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 
 equily which will bind subsequent grantees with notice without endangering the 
 title of a bona fide purchaser." 
 
ESTOPPEL OF THE GRANTOR. 505 
 
 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, 
 woiild 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 who were strangers to the title. 
 
 In many of the States there are statutes which provide in sub- 
 stance that an after-acquired title shall pass to the grantee.^ It 
 does not appear, however, from their terms or from judicial con- 
 struction, that they amount to anything more than affirmation of 
 the existing rule as it respects the covenantor, or that it was thereby 
 intended to enlarge the rights of the original grantee, as against a 
 purchaser of the after-acquired title without notice.^ It frequently 
 happens that the equitable owner of lands, e. g., one who has paid the 
 purchase money in full but has not received a conveyance, sells and con- 
 veys, or mortgages his interest in the premises, and afterwards receives 
 a conveyance of the legal title, whether in such a case, a subsequent 
 grantee without notice of the riglits of the purchaser of the equi- 
 table title, would be estopped to set up the after-acquired legal title 
 
 ' Arizona Comp. L. 1877, p. 384, § 33; Ark. Mansf. Dig. 1884, § 642; Cal. 
 Hitts Code, 1876, § 6106: Colo. Gen. Stats. 1888, § 301; Dak. Lev. Rev. Code, 
 1883, vol. 3, p. 883, subd. 4; Ga. Rev. Code, 1882, § 2699; 111. Rev. St. p. 379, 
 § 7; Iowa Rev. Code, 1884, § 1931; Kans. Comp. Laws, 1879, p. 311, § 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, § 361; Wash. Ty. 
 Code. 1881, App. 25. 
 
 ' Mr. Rawle is of the opinion that the effect of these statutes is to override 
 any equities that might otlierwise avail the second purchaser. Covts. for Title 
 (5th ed.), p. 370 n. 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 inde- 
 feasible estate in fee simple absolute, and shall not at the time of such convey- 
 ance 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 grantise, 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. 
 64 
 
506 MARKETABLE TITLE TO KEAL ESTATE. 
 
 seems to have been nowhere clearly decided.^ It has been inti- 
 mated in Georgia that in such a case, the first grantee had a right 
 to establish an equitable title as against the second grantee.' 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 pur- 
 chaser, would not bo 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,' as where he sees him in the possession 
 of the estate,* he cannot hold the subsequently-acquired title as 
 against such purchaser, for he can no longer claim to be a pur- 
 chaser 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 purchase!' 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, was 
 held not to be estopped thereby, and to be entitled to the land. In 
 other words, an estoppel cannot affect a purchaser under a judgment 
 
 ' 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 vsrhich deed vyas duly recorded, and after acquiring the legal title, con- 
 veyed to D. with warranty. It was held that the recording of the deed convey- 
 ing 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 addi- 
 tional validity (as notice) if recorded. The principle of this decision was after- 
 wards 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 per- 
 son before the date of a deed or contract made to or with such person, which is 
 duly admitted to record, and from whom the title of such person is derived." 
 Va. Code, 1887, § 2473. 
 
 ' Bevins v. Vanzant, 15 Ga. 521. 
 
 ' Gochenour v. Mowry, 33 111. 331. Great Falls Ice Co. v. Worster, 15 N. H. 
 413; Wark v. Willard, 13 N. H. 389. 
 
 " Doe V. Dowdall, 3 Houst. (Del.) 369. 
 
ESTOPPEL OF THE GEANTOE. 507 
 
 against the grantor, entered prior to the conveyance creating the 
 estoppel.* 
 
 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.' 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.^ 
 
 § 215. COMPTJIiSORY ACCEPTANCE OF AFTER- ACaUIRED TITLE 
 IN LIEU OF DAMAGES. So long as a contract for the sale of lands 
 remains executory, there is no doubt as to tlie right of the vendoi', 
 in most cases in which time is not of the essence of the contract, to 
 perfect the title to the estate by purchasing the rights of an adverse 
 claimant, and to compel the vendee to accept the title when so per- 
 fected.* But if the contract has been executed by a conveyance 
 with a covenant of warranty, or a covenant of seisin, the grantor 
 cannot, after a right to recover substantial damages for a breach of 
 those covenants has accrued to the grantee, as where he has been 
 evicted from the premises, buy in the rights of the adverse claimant 
 and require the grantee to take the title so acquired in lieu of his 
 damages.^ Of course, as will be readily perceived, the covenantee 
 
 > Jackson v. Bradford, 4 Wend. (N. Y .) 619. 
 
 'Kimball v. Blaisdell, 5 N. H. 533; 22 Am. Dec. 476. 
 
 'As in Virginia, Guerrant v. Anderson, 4 Rand. (Va.) 208. 
 
 <Ante, § 202. 
 
 ' 2 Washb. Real Prop. 673; Rawle Covt. (5th ed.) § ; Bigelow on Estoppel, 
 p. 400. Burton v. Reeds, 20 Ind. 92; Bethell v. Bethell, 92 Ind. 318, 828. 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. Gf. 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 cannot after such, 
 entire eviction of the grantee purchase the title paramount and compel the 
 
508 MARKETABLE TITLE TO EEAL ESTATE. 
 
 could have no object in rejecting the after-acquired title and 
 demanding his damages, unless the property had depreciated in 
 value, in which case the damages, being measured by the considera- 
 tion money, might be greater in amount than the value of the after- 
 acquired title.' As respects the covenant of warranty, which is 
 only broken by an eviction from the premises, there would seem to 
 be no doubt that the acquisition of title from the real owner by the 
 covenantor before an eviction had occurred would necessarily 
 deprive the covenantee of any right to reject that title, because in 
 such a case there would not be, and could never be, a right to dam- 
 ages against the covenantor. The covenant of seisin, however, is 
 broken as soon as made if the covenantor has no title, and a right 
 of action immediately accrues thereupon to the covenantee.' In 
 that action, unless the covenantee had been evicted, he could recover 
 no more than nominal damages ; consequently, it would seem imma- 
 terial to him whether he were left to his action or forced to take 
 the after-acquired title. There can be no right to recover the con- 
 sideration money as damages so long as the covenantee remains in 
 the undisturbed possession of the estate. It has been laid down by 
 a learned writer upon this branch of the law of estoppel that the 
 effect of a conveyance with a covenant of waranty or of seisin is 
 not to actually transfer to the covenantee the after-acquired estate, 
 so as to deprive him of the election to take that estate, or recover 
 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 fail- 
 ure of the title, the covenantee would have the option to retain the 
 land, or to offer to reconvey it and recover its consideration.' The 
 
 grantee to take the same against his will, either in satisfaction of the covenant 
 * * * or in mitigation of damages for the breach of it." In Winfrey v. Dralse, 
 4 Lea (Tenn.), 393, it seems to have been conceded that the grantor might perfect 
 the title in a suit for rescission on the ground of mistake. 
 
 ' Ante, § 164. 
 
 ■' Ante, p. 371. 
 
 ' Rawle Govt. §§ 183, 358. Mr. Rawle cites Tucker v. Clarke, 3 Sandf. Ch. 
 (N. Y.) 96, in support of his views on this point. In that case, however, the 
 
ESTOPPEL OF THE GKANTOE. 509 
 
 objection to this view of the doctrine of the after-acquired estate is 
 that it would, in every case of breach of the covenant of seisin in 
 wliich 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 tliat the purchaser may set u^? by way of recoup- 
 ment the breach of the plaintiff's covenant of seisin, as a defense to 
 the action, upon condition that he reconvey the premises to the 
 grantor,^ but the writer is not awai-e 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 cov- 
 enantee to rescind his executed contract, when he is in the possession 
 
 covenantee had been constructively evicted from tlie 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 pucchase 
 money paid, regardless of the after-acquired title, the decision is ohiter 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. Th e court said : "The executed 
 contract was that the complainants 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- 
 veyed. It would have been a little more plausible if there had been a semblance 
 of mutuality about it, so that the defendant might have coerced them to procure 
 a good title on discovering the defect. But there is no pretense that the defend- 
 ant 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 covenants 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 con- 
 tract 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, § 364. 
 
510 MAKKETABLE TITLE TO EEAL ESTATE. 
 
 and enjoyment of everything tliat he could demand under that con- 
 tract. Accordingly, it has been decided that, upon a breach of the 
 covenant of seisin, from which tlie covenantee has suffered no actual 
 damage, there can be a recovery of no more than nominal damages 
 if the covenantor has gotten in the outstanding title.' 
 
 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.^ 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.' 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 jDerfect the title.* The acceptance of a conveyance is not, as 
 
 ' 3 Sedg. Dam. (8th ed.) § 978. Baxter v. Bradbury, 20 Me. 360; 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. 92. Farmers' Bank v. Glenn, 68 N. C. 39; Hughes v. 
 McKider, 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. 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. 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 dis- 
 charge 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. 437. Marsh v. Sheriff, (Md.) 14 
 Atl. Rep. 664. Kimball v. West, 15 Wall. (U. S.) 377. Note, that in Cochran v. 
 Pascault, 54 Md. 1, it was held that under a covenant for further assuranee 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 com- 
 pelled to accept such deed. 
 
 2 Morris v. Phelps, 5 Johns. (N. Y.) 49; 4 Am. Dec. 823. Fitzhugh v. Croghan, 
 2 J. J. Marsh. (Ky.) 439; 19 Am. Dec. 139. But see Noonan v. Illsley, 31 Wis. 
 147, where the point was questioned, and King v, Gilson, 33 111. 348; 83 Am. 
 Dec. 369. 
 
 'Bank v. Mersereau, 7 Barb. Ch. (N. Y.) 528, 572. Porter v. Hill, 9 Mass. 34; 
 6 Am. Dec. 23; Stinson v. Sumner, 9 Mass. 143. 
 
 * McWhirter v. Swaffer, 6 Baxt. (Tenn.) 42; Woods v. North, 6 Humph. (Tenn.) 
 810; 44 Am. Dec. 312; Blackman v. Shelby, 8 Humph, (Tenn.) 439. The reasons 
 
ESTOPPEL OF THE GRANTOR. 511 
 
 a general rule, a merger of the right to rescind the contract on the 
 ground of fraud.' 
 
 § 216. WHAT COVENANTS WILL PASS THE AFTEB-ACQUIBED 
 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 ;^ the passing of the after- 
 acquired estate to the grantee satisfies tlie grantor's covenant and 
 takes away the covenantee's right of action, unless he has been 
 evicted from the premises.^ A covenant of seisin will also estop 
 the grantor from setting up the after-acquired title ;* except in cer- 
 tain of the New England States, in which it is held that this cove- 
 nant is a mere admission that the covenantor is seised de facto, and 
 
 for this rule are clearly stated as follows in Alvarez v. Braanan, 7 Cal. 509; 68 
 Am. Dec. 274: " Where there is no fraud, and the vendor binds himself to con- 
 vey a certain title, and afterwai'ds discovers a defect which he can cure, and 
 thus convey to the purchaser all the latter bargained for, it is obviously just that 
 the vendor should be allowed to do so. But when a party misrepresents material 
 facts, which he knows to be untrue, the law will not permit him to derive any 
 benefit from the transaction. The injured party has a right to elect to rescind 
 the contract and recover the purchase money, or he may proceed upon the cove- 
 nants 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 other- 
 wise, it would offer a reward for injustice. A party knowing he had no title 
 could sell, and, if the property declined in price, he could purchase the out- 
 standing 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 p>ir- 
 chase money with legal interest. All the wrongs would be on his side, and yet 
 he would enjoy all the advantage of the market. The risk of loss would be 
 entirely thrown upon the innocent, while all the chance of gain would be on the 
 side of the guilty party. If such be the legitimate result of the rule, there must 
 be something radically wrong in the rule itself. A rule of law that rewards the 
 guilty and punishes the innocent would defeat the noble ends aimed at by the 
 government. 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. §§ 370, 376. 
 
 2 Baxter v. Bradbury, 30 Me. 360; 37 Am. Dec. 49. Buggies v. Barton, 13 
 Gray (Mass.), 506. Dickinson v. Talbot, 14 B. Men. (Ky.) 65, and cases cited, 
 p. 493, note 2. 
 
 " Rawle Govts, for Title (5th ed.), § 350. 
 
 < Pratt V. Pratt, 96 111. 184. Irvine v. Irvine, 9 Wall. (U. S.) 618. 
 
512 MAKKETABLB TITLE TO REAL ESTATE. 
 
 that there is no estoppel because there is no right of action if the 
 grantor was actually, though wrongfully seised.' The covenants 
 for good right to convey and for quiet enjoyment will transmit the 
 after-acquired title.' The covenant of further assurance is also as 
 effectual for that purpose as the covenant of warranty, since the 
 covenantor tiiereby engages to convey the after-acquired title, and 
 may be in equity compelled so to do.'' The covenants of seisin, 
 against incumbrances, and for tjuiet enjoyment implied from the 
 words " grant, bargain and sell," have been held to act as an estoppel ;* 
 so, also, a covenant of warranty implied from those words." But in 
 Missouri, the covenants of seisin, against incumbrances, and for 
 further assurance implied by statute from like words, have been 
 held insufficient to estop the grantor, upon the ground that they 
 amount to nothing more than a quit claim.'' It seems that the 
 warranty implied from a partition will not pass an after-acquired 
 estate.'' 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 purported to be conveyed.^ 
 § 217. ESTOPPEL NOT DEPENDENT ON AVOIDANCE OF CIR- 
 CUITY OP ACTION. The following instances in which the doctrine 
 of estoppel has been applied when tliero was no right of action on 
 the grantor's covenants clearly show that tlie doctrine of estoppel 
 and transfer of the after-acquired estate does not depend altogether 
 on avoidance of circuity of action. Those instances are the estoppel 
 
 ' Allen V. Sayward, 5 Greenl, (Me.) 327. Doane v. WCcutt, 5 Gray (Mass.), 
 328; 66 Am. Dec. 369. 
 
 ' Foss V. Strachn, 43 N. H. 40. Weightman v. Reynolds, 24 Miss. 675, 680. 
 
 » 3 Sugd. Vend. (StU Am. ed.) 394; G Waslib. Real Prop. 667 (4th ed. 479.) 
 Fitch V. Fitch, 8 Pick. (Mass.) 483. Bennett v. Waller, 33 111. 183 (97). Pierce 
 V. Milwaukee R. Co., 24 Wis. 551, 553; 1 Am. Rep. 308. Hope v. Stone, 10 Minn. 
 141 (114). 
 
 ■•De Wolf V. Haydn, 24 111. 525; King v. Gibson, 33 111. 353; 83 Am. Dec. 369; 
 Pratt V. Pratt, 96 111. 184, 197. 
 
 ' Blakeslee v. Insurance Co. , 57 Ala. 305. 
 
 ' Bogy V. Slioab, 13 Mo. 365; Chauvin v. Wagner, 18 Mo. 53; Gilson v. 
 Chouteau, 39 Mo. 566; Butcher v. Rogers, 60 Mo. 138. 
 
 ' Rawle Govts. (5th ed.) pp. 381, 450. Walker v. Hall, 15 Ohio, 355; 86 Am. 
 Dec. 482. 
 
 'Heath V. Creelock, L. R., 10 Ch. 30. G«n. Finance Go. v. Liberator, etc, 
 Society, L. R., 10 Ch. Div. 15. 
 
ESTOPPEL OP THE GEANTOE. 513 
 
 of married women, of the sovereign power, of bankrupts,' and of cove- 
 nantors against whom no action can be maintained on the covenant 
 by reason of the Statute of Limitations,^ to which may be added 
 those cases in which the grantor, undertaking to convey an estate 
 of a particular quaUty or description, is held to be estopped from 
 setting up an after-acquired title, even though the conveyance con- 
 tained no covenants for title. The grantor is as much bound by the 
 recitals in his deed as by formal covenants.' 
 
 Upon the question whether a married woman is estopped by her 
 covenants or conveyance from setting up against her grantee an 
 after-acquired title to the estate there is a conflict of authority. The 
 rule which seems to prevail in most of the States is that she is not 
 estopped ; ^ principally for the reason that she cannot bind herself 
 by her covenants, and that, consequently, there is no room for appli- 
 cation of the doctrine of estoppel in order to prevent a circuity of 
 
 ' Post, § 217, et seq. 
 
 ' Cole V. Raymond, 9 Gray (Mass.), 217, the court saying that while the cove- 
 nant 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 
 distinguie'' this decision from those which hold that the 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 disseisee-covenantee. Ante, p. 495. 
 
 3 Denn v. Cornell, 3 Johns. Cas. (N. Y.) 174. Carver v. Jackson, 4 Pet. (U. 
 S.) 87. 
 
 * Bishop Married Women, § 603. Hempstead v. Easton, 33 Mo, 142. Hobbs 
 V. King, 2 Met. (Ky.) 142. Gonzales v. Hukil, 49 Ala. 260; 20 Am. Rep. 282. 
 Wadleigh V. Glines, 6 N". H. 17; 23 Am. Deo. 705. Goodeuough 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 laud, 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, executed a deed of trust 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 purchaser under the deed of trust. She would not be estopped to set up 
 against him an after-acquired title paranwnint to the right eonmyed by lier in 
 trust, but the legal title received by her from her vendor was in equity sub- 
 ordinate to the right so conveyed, and could not avail her as an after-acquired 
 title. Barker v. Circle, 60 Mo. 258. 
 65 
 
514 SIAEliETABI.E TITLE TO REAL ESTATE. 
 
 action.' There are decisions, however, that it is immaterial whether 
 the deed was with or without warranty, there being no estoppel in 
 either case.^ 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.^ ISTor will a statute authorizing her to 
 convey have that effect.'' 
 
 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 cove- 
 nants.' 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." 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.' 
 
 ' Jackson v. Vanderheyden, 17 Johns. (X. Y.) 167; 8 Am. Dec. 378, a leading 
 case; Carpenter v. Scliermerliorn, 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. Da-venport, 4 McCr. (U. S.) 34. Teal v. WoodTvorth, 3 Paige (N. 
 Y.), 470. In Thompson \ . ilerrill, 58 Iowa, 419, it was held that a statute pro- 
 viding that a married woman should not he liable on her covenants in a convey- 
 ance of the husband's lands relieved her as well of liability on her covenants by 
 way of estoppel as for damages. 
 
 'Den V. Demarest, 1 Zab. (N. J.) 541. See, also, the remarks of McCraet, 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, 3 Cush. (]VIass.) 264. 
 270. Griffin v. Sheffield, 38 Miss. 859, 393; 77 Am. Dec. 646. Strawn v, Strawn, 
 50 111. 33. 
 
 ' O'Neill V. Vanderberg, 25 Iowa, 107. Whether she would be estopped if the 
 conveyance were of her own land, gumre. Childs v, McChesney, 20 Iowa, 481. 
 In SchafEner 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. Swan, 7 Mass. 291; Nash v. Spof- 
 ford, 10 Met. (Mass.) 193; 43 Am. Dec. 425; Doane v. Willcutt, 5 Gray (Mass.), 
 328, 333; 66 Am. Dec. 864; Knight v. Thayer, 125 Mass. 35. 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. EUer, 29 Ind. 322; Beal v. Beal, 79 Ind. 280, obiter. 
 
 ' Graham v. Meek, 1 Oreg. 828. 
 
 ' King v. Rea, 56 Ind. 1. Wadleigh v. Glines, 61 N. H. 17; 33 Am. Dec. 705. 
 
ESTOPPEI. OF THE GEANTOE. 515 
 
 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 insuf- 
 ficient to pass an existing estate, cannot have that operation by 
 way of estoppel.' 
 
 Wliile 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.' In several cases, however, it has been held 
 that the doctrine of estoppel has no application to acts of the 
 sovereign power.^ A bankrupt is estopped to set up an after- 
 acquired title as against his covenants,^ or as against his deed with- 
 out covenants,^ notwithstanding his discharge. If the deed contain 
 covenants it is apprehended that the same applies, whether there had 
 been, or had not been, a breach of the covenants at the time of the 
 
 ' Burston v. Jackson, 9 Oreg. 375. 
 
 "Commth. v. Andre, 3 Pick. (Mass.) 224. 
 
 'People. V. Society, 3 Paine (U. S.), 557; Menard v, Massey, 8 How. (U. S.) 393, 
 313. Magee v. Hallett, 22 Ala. 718. Nieto v. Carpenter, 7 Cal. 527. Commth. 
 V. Pejepscut, 10 Mass. 155. 
 
 * Taylor V. ShufEord, 4 Hawks (N. C), 116; 15 Am. Dec. 512; Candler v. Luns- 
 ford, 4Dev. & Bat. (N. C.) 407; Wallace v. Maxwell, 10 Ired. (N. 0.) 113; 51 Am. 
 Dec. 380. There were no covenants in any of these cases. 
 
 '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.) 83, it appeared 
 that the covenants in the bankrupt's deed were not broken until after the dis- 
 charge in bankruptcy, and there being no right of action on the covenant at the time 
 of the discharge, and no claim for liability on the covenant provable in bank- 
 ruptcy. It was held that the bankrupt was estopped to set up the after-acquired 
 title. 
 
 « Stewart v. Anderson, 10 Ala. 504; Dorsey v, Gassaway, 3 Harr. & 3. (Md.) 403; 
 3 Am. Dec. 557, where, however, the question arose in a controversy as to the 
 title of personal property. 
 
516 MABKETABLK TITLE TO .REAL ESTATE. 
 
 discharge, since the estoppel does not depend upon the personal lia- 
 bility of the covenantor for damages.^ 
 
 § 218. MERE aUIT CLAIM DOES NOT OPERATE AN ESTOPPEL. 
 
 As a general rule a mere quit claim of all tlie 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.' And if the 
 
 'Gregory V. Peoples, 80 Va. 356, where it was said by Lewis, P. : " It was claimed 
 that by his discharge in bankruptcy H, was released from the obligation of his cove- 
 nant 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 appel- 
 lant 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 inconsistent with what he undertook to convey. It 
 has, therefore, been held that a discharge in bankruptcy, while effectual to release 
 the covenantor from liability in an action for a breach of the covenant, does not 
 at all affect the estoppel. This is on the ground that, as the release is by force of 
 the statute, and not by the act of the covenantee, or those claiming under him, 
 no greater efEect 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. Lift. § 446, p. 265, a. b.; Bigelow Estoppel, ch. 11, § 4; Rawle Covt. 
 247; 3 "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. (S, Y.) 302; Pelletreau v. Jackson, 11 Wend. 
 (N. Y.) 119, distinguishing Jackson v. Bull, 1 Johns. Cas. (N. Y.) 81, and Jack- 
 son V. Murray, 13 Johns. (N. Y.) 201, in which it did not appear that the deeds 
 were without warranty. Edwards v, Varick, 5 Den. (K. Y.) S64, 703; Sparrow 
 V. Kingman, 1 Comst. (N. Y.) 343, 247; Jackson v. littell, 56 N. Y. 108; Cramer 
 v. Benton, 64 Barb. (N. Y.) 534. Boswell v. Buchanan, 3 Leigh. (Va.) 365; 33 
 Am. Dec. 280; Wynn v. Harman, 5 Grat. (Va.) 157. Comstock v. Smith, 13 
 Pick. (Mass.) 116; 23 Am. Dec. 670. 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 6a. 379. 
 Kent V. Watson, 33 W. Va. 568. Simpson v. Greeley, 8 Kans. 586; Bruce v. Luke, 
 9 Kans. 301; 13 Am. Rep. 491; Scoffins v. Grandstaff, 13 Kans. 470; Young v. Clip- 
 
ESTOPPEL OP THE GEANTOE. 517 
 
 grantor warrant tlie titlo specially, the subsequently-acquired estate 
 will not pass to the grantee if it came to the grantor through a 
 defect of title not embraced by his covenant.' Thus, the grantor 
 may buy in a title paramount to that under which he held, and the 
 
 pinger, 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 afterwards be asserted against it. Ott v. Sprague, 
 27 Kans. 634. Harden v. Collins, 8 Nev. 49. Demarest v. Hopper, 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. 
 380. Morrison v, Wilson, 30 Cal. 344; Cadiz v. Majors. 33 Cal. 288; Quivey v. 
 Baker, 37 Cal. 465. Gibson v. Chouteau, 39 Mo. 536; Bogy v. Shoab, 18 Mo. 365; 
 Butcher v. Rogers, SO Mo, 188; Kimmel v. Benna, 70 Mo. 53, 68. Kinsman v. 
 Loomis, 11 Ohio, 475. Frink v. Darst, 14 111. 304; 58 Am. Deo. 555, 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, § 10, p. 280. Avery v. 
 Aikins, 74 Ind. 283; Locke v. White, 89 Ind. 493. Sweetser v. Lowell, 33 Me. 
 452. In Ceal Creek Mining Co. v. Ross, 12 Lea (Tenn.), 5, it 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 pro- 
 vided by statute that a deed of quit claim and release shall estop the grantor and 
 his heirs from asserting a subsequently -acquired title. Code, 1880, § 1195. Before 
 this statute the rule was as stated in the text. Mitchell v. Woodson, 87 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 or default of the covenantor, and such person afterwards 
 asserts and enforces the title against the covenantee, the covenant is not thereby 
 broken, and .tlie covenantor is not in any way responsible. The covenantee pays 
 nothing for the actual title, but pays only for the claim of the covenantor 
 together with the covenant. No duty rests on the covenantor to procure the 
 title for the benefit of the covenantee, or at all to protect him against, or indem- 
 nify 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 cove- 
 nantor, descend or otherwise come to him. Or it may be important to the inter- 
 est of himself or others, that he should purchase the land, and accordingly he 
 may purchase it. Such a purchase cannot damage the covenantee. And there 
 is no reason whatever at all sufficient, why the covenantor should not purchase 
 
 > 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. 
 
518 MARKETABLE TITLE TO EEAL ESTATE. 
 
 title SO acquired will not enure to his grantee, but he cannot acquire 
 the very title which he warranted, and hold it against his grantee.' 
 The reason why no estoppel arises under a mere quit claim, pure 
 and simple, is partly because there is no right of action against the 
 grantor, if the estate be lost to one having a paramount title, and 
 consequently no occasion for the application of the doctrine of 
 estoppel to prevent circuity of action.^ There is no injustice in 
 preventing the passage of the after-acquired estate to the grantee, 
 where the grantor merely releases whatever present claim or inter- 
 est he may have, for, presumably, the consideration of the convey- 
 ance was commensurate only with that interest.^ If it should appear 
 that the consideration paid by the grantee was the full value of the 
 estate, that fact might be important in determining whether the 
 intent of the grantor was to convey, not merely such present inter- 
 est as he might have in the premises, but an estate of a particular 
 description, which would, notwithstanding the absence of covenants 
 for title, estop him from claiming the after-acquired estate.* A deed 
 with special or limited covenants for title, will be regarde.d in the 
 same light as a quit claim, or deed without covenants, so far as its 
 effect, by way of estoppel, is concerned.^ 
 
 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.* 
 
 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. ' 
 
 ' So held in Gibbs v. Thayer, 6 Cush. (Mass.) 30, where the grantor executed a 
 fraudulent conveyance, with special warranty, and afterwards went into insol- 
 vency, 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 Miu. & Mfg, Co. v. Peytoua Coal Co., 8 W. Va. 449. 
 
 ^Post, p. 520. 
 
 'Harrison v. Boring, 44 Tex. 255. 
 
 «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 
 
ESTOPPEL OF THE GEANTOE. 519 
 
 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.' 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.^ 
 But a conveyance of a contingent interest without covenants of 
 title will not operate an estoppel.' 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.* If the heir conveys not merely his interest in 
 expectancy, but the land itself with covenants of general warranty, 
 he will be estopped.^ 
 
 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 pos- 
 sessed of, the after-acquired title will not pass.^ Of course, the 
 grantor cannot acquire by estoppel a greater estate than the instrument 
 
 of the government, and it was held that such title did not enure to the cove- 
 nantee. See, also. Lamb v, Kann, 1 Sawy. (U. S.) 338. Quivey \ . Baker, 37 
 Cal. 471. Fields v. Squires, Deudy (U. S.), 380. Blake v. Tucker, 12 Vt. 44. 
 
 ' Varick v. Edwards, 1 HofE. Oh. (N. Y.) 383. 
 
 ' 4 Kent Com. 261. Read v. Fogg, 60 Me, 479. Hayes v. Tabor, 41 N. H. 521. 
 
 3 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, 33 Ohio St. 502. Contra, Bohon v. Bohon, 78 Ky. 408. In llcClurev. 
 Raben, (Ind.) 25 N. E. Rep. 179, it was held that a conveyance of an expectancy 
 by an heir apparent without wai-ranty, the ancestor being still alive but not 
 informed of the transaction, would not estop the heir from holding the interest 
 after the death of the ancestor, though the purchase was in good faith, and full 
 value was paid for the expectant estate. But if the deed be with warranty, the 
 heir will be estopped. Habig v. Dodge, (Ind.) 25 N. E. Rep. 182. 
 
 ' Ackerman v. Smiley, 37 Tex. 211. 
 
 « Hannick v. Patrick, 119 U. S. 156; Brown v. Jackson, 3 Wh. (U. S.) 452. 
 Sanfoi-d v. Sanford, 135 Mass. 314; Hoxie v. Finney, 16 Gray (Mass.), 832; Sweet 
 V. Brown, 12 Met. (Mass.) 175; 45 Am. Dec. 343; Wight v. Shaw, 5 Cush. (Mass.) 
 56; Allen v. Holton, 20 Pick. (Mass.) 458. Coe v. Persons Unknown, 48 Me. 436. 
 Shoemaker v. Johnson, 35 Ind. 33; Locke v. White, 89 Ind. 492; Adams v. Ross, 
 1 Vr. (N. J. L.) 509; 83 Am. Dec. 337; White v. Brocaw, 14 Ohio St. 339. Wynn 
 v. Harman, 5 Grat. (Va.) 163. Bell v. Twilight, 6 Fost. (IST. H.) 411; 45 Am. 
 Dec. 367. Gee v. Moore, 14 Cal. 474; Kimball v. Semple, 35 Cal. 441, 453. Hope 
 
520 MAEKETABI.E TITLE TO EEAL ESTATE. 
 
 creating the estoppel purports to convey A warranty cannot enlarge 
 the estate ; it attaches only to the estate granted or purporting to be 
 granted. If it be a life estate the covenantor warrants nothing 
 more. He cannot be estopped by the deed, or the covenants con- 
 tained in it, from alleging that the fee did not pass, when tlie deed 
 shows precisely what estate did pass, and that it was less than the 
 fee.' 
 
 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 
 for title, or to requii'e 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 clainnng 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 r.cquire, an 
 estate of a particular description or quality, as distinguished from a 
 
 V. Stone, 10 Minn. 141, 149. Gibson v. Chonteau, 39 Mo. 536, 567; 100 Am. Bee. 
 366; Vallo v. Clemens, 18 Mo. 486; Bogy v. Shoab, 13 Mo. 365. Holbrook v. 
 Debo, 99 111. 373. The rule stated in the te.xt 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, 13 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 like decis- 
 ion upon a similar state of facts was made in Hall v. Chaffee, 14 N. H. 315 325 
 • 3 Co. Litt. 385, b. Adams v. Ross, 1 Vr. (N. J.) 505; 83 Am. Dec. 337. 
 
ESTOPPEL OF THE GEAXTOE. 
 
 521 
 
 quit claim or release, the after-acquired title will pass to the 
 grantee, though the deed contains no formal covenants for title.' 
 It has been held that the fact that an instrument is a quit-claim 
 deed in form will not preclude the grantee from showing that 
 
 ' Bigelow Estoppel (3d ed.), 333; Rawle Govt, (oth ed.) § 347. Van Rensselaer 
 V. Kearney, 11 How. (U. S.) 398; French v. Spencer, 31 How. (U. S.) 338, 340. 
 Clark V. Baker, 14 Cal. 613, 639. Taggart v. Risley, 4 Oreg. 335. Habig v. 
 Dodge, (Ind.) 35 N. E. Rep. 183. Van Rensselaer v. Kearney, supra, is a leading 
 case upon this point. It distinguishes between a quit 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 authorities seems to be that whatever may be the 
 form or nature of the conveyance 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 convey; 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 neces- 
 sary implication, 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 convej^ance. 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 neces- 
 sarily 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 prop- 
 erly applied, upon the highest principles of morality and recommends itself to 
 the common sense and justice of every one. And although it debars the truth 
 in the particular case, and, therefore, is not 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 convict the party of a previous falsehood; would 
 be the denial of a previous affirmation, upon the faith of which persons had dealt 
 and pledged their credit or expended their money." In Nixon v. Carco, 38 Miss. 
 414, 436, the following instrument was held sufficient to estop the heirs of the 
 grantor from setting up the after-acquired title: 
 
 "Pass Christian, October 1, 1815. 
 
 " I, the undersigned, declare that I, John Baptiste Carco, have sold to Messrs. 
 Francis Bouquie and Anthony Martin my plantation and two cabins situate 
 thereon, together with the enclosure and all the rails. (Here follows a descrip- 
 tion of the property and recital of the consideration.) 
 
 "(Signed.) JEROME BAPTISTE CARCO." 
 
 In Thomas v. Stickle, 33 Iowa, 73, 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 
 
522 MARKETABLE TITLE TO KEAL ESTATE. 
 
 sometliing more than the grantor's interest, such as it might be, was 
 intended to be conveyed.' 
 
 The principle involved in these cases is, that the grantor lia\'iug 
 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- 
 acqiiired title.^ 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.^ A contrary 
 view has been taken in Massachusetts.* 
 
 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 
 
 conveyance, but not disclosed by him, by means of "whicli he afterwards 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 
 include future interests, while a covenant of non-claim, i. e., that neither the 
 grantor nor his heirs will thereafter claim the premises, expressly contemplates 
 the after- acquired estate. Miller v. Ewing, 6 Cush. (Mass.) 34. 
 
ESTOPPEL OF THE GEANTOE. 523 
 
 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.^ 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. 
 
 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.' Nor will a title acquired by an execution debtor after 
 sale by the plaintiff enure to the benefit of the purchaser at such 
 sale.^ 
 
 § 219. ESTOPPEL OF GRANTEE. By the common law of England 
 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.* 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," but they were 
 afterwards overruled,* 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.' If, however, the 
 real title be already in the grantee, he will be estopped from suing 
 
 ' Welsh V. Dutton, 79 111. 465. Irvine v. Irvine, 9 Wall. (U. S.) 618. 
 
 » Young V. Lorain, 11 111. 624; 52 Am. Dec. 463, 
 
 'Henderson v. Overton, 2 Yerg. (Tenn.) 393; 24 Am. Dec. 493. McArthur v. 
 Oliver, 60 Mich. 605. Gentry v. Callahan, 98 N. C. 448. Westheimer v. Reed, 
 15 Neh. 662 
 
 * Co. Litt. 852, a. 
 
 ' Bowne v. Potter, 17 Wend. (N. Y.) 164; Sherwood v. Vandenburgh, 2 Hill 
 (N. Y.), 307; Osterhout v. Shoemaker, 3 Hill (N. Y.), 518. 
 
 « Averill v. Wilson, 4 Barb. (N. Y.) 180; Sparrow v. Kingman, 13 Barb. (N. Y.) 
 208; 1 Comst. (N. Y.) 245; Finn v. Sleight, 8 Barb. (N. Y.) 406. 
 
 ■■ Gaunt V. Wainman, 3 Bing. N. Gas. 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 v. McLeery, 65 
 
524 MAEKETABLE TITLE TO REAL ESTATE. 
 
 on the covenants of his grantor hj nis acceptance of the grant.* 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.^ The rule that the pur- 
 chaser is estopped 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 purchaser, on 
 ascertaining the vendor's want of title, may himself preempt the 
 land and claim adversely thereunder to his vendor.' JSTeither does 
 the rule apply where the vendee was induced to purchase by reason 
 of the fraudulent representations of the vendor.' ISTor where the 
 purchaser has been actually or constructively evicted.^ The spirit 
 and intent of the 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 possession from the vendor, 
 and takes possession under what he supposes is the better title, he 
 may set up such title in defense of an action of ejectment by the 
 vendor.^ 
 
 § 220. RESUME OF PRiNCIPliES. Mr. Eawle, in summing up 
 the results of the American decisions as to the transfer of the after- 
 acquired estate, observes that the docti-ine rests upon a principle 
 which is or at times may be salutary, being intended to carry out the 
 
 Me. 173. Cutter v. Waddingham, 33 Mo. 382, Patterson v. Dwinel, 113 lU. 570. 
 Clee V. Seaman, 21 Mich. 287. 
 
 1 Pitch V. Baldwin, 17 Johns. (N. Y.) 166. Beebe v. Swartwout, 3 Gil. (111.) 
 179. 
 
 ' Ante, p. 385. As to estoppel of the purchaser where the contract is still 
 executory, see ante, § 203, and post, § 279. 
 
 8 Spier V. Laman, 27 Tex. 305; Wheeler v. Styles, 38 Tex. 340. Ante, § 302, 
 
 ■■Patterson v. Fisher, 8 Blackf. (Ind.) 237. 
 
 'Thus, inBeall v. Davenport, 48 Ga. 165; 15 Am. Rep. 656, it was held that 
 the purchaser, in ejectment by the vendor, might show that the land had been 
 sold to a third person under execution against the vendor, and that he (the pur- 
 chaser) 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.), 437; 34 Am. Dec. 480. 
 
ESTOPPEL OF THE GEANTOE. 525 
 
 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 unmaterial what particular 
 covenants there may be, so that they show the intention. But the 
 intention is not necessarily deduced from the oovenants, and may 
 appear by other parts of the deed. In many cases, to prevent cir- 
 cuity of action, it may be held that the estate actually passes ; but 
 this should not be suffered to work injustice by depriving 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 with- 
 out notice.^ These conclusions appear to be sound in principle and 
 to be warranted by the decisions, except in so far as they would per- 
 mit the covenantee, upon a breach of the covenant of seisin unac- 
 companied by disturbance of the possession, to practically rescind 
 the executed contract and recover the purchase money as damages, 
 though he had not suffered and could never, by reason of the after- 
 acquired title, suffer actual damage from the breach of the covenant. 
 In such a case an attempt has been made to show that upon reason 
 and authority the covenantee must take the after-acquired title, not 
 in lieu of damages, for there can be no substantial damages when 
 the covenantee has suffered no actual injury, but in satisfaction of 
 the grantor's covenant, and as a 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.'* 
 
 ' Covenants for Title (5th ed.), § 264. 
 « Ante, § 215. 
 
CHAPTEE XII. 
 
 REFORMATION OF THE CONVEYANCK 
 
 WHEN GRANTED AND WHEN DENIED. 
 
 General principles. § 221. 
 Mistake of fact. § 322. 
 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. § 239. 
 In favor of grantor. § 230. 
 Purchasers and creditors. § 231. 
 Volunteers. § 232. 
 Married wonxen. § 233. 
 
 §221. WHEN GRANTED AND WHEN DENIED. General principles. 
 
 The reformation or correction of written contracts or conveyances 
 wliich, for some reason, fail to express the true intention of the 
 parties, is one of the most familiar grounds of equitable jurisdic- 
 tion.' 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 agree- 
 ment.^ 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 conveyance 
 shall be executed, either by the defendant, or by an officer of the 
 court acting on behalf of the defendant by decree of the court, 
 which shall operate as a reformation or correction of the original 
 deed, and effectuate the true intent of the original parties.^ This, 
 after all, is no more than specific performance of the contract ; the 
 
 ' 1 Story Eq. Jur. p. 108, H seq.yi 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, oh. 35, Fraud and Mistake. 
 
 ' See, generally, the cases and authorities cited throughout this chapter. 
 
EEFOKMATION OF THE CONVEYANCE. 527 
 
 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 
 tiierewith.' The reformation is not to make a new agreement 
 between the parties, but to establish and perpetuate the old one.^ 
 
 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.' 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.'' 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 coiTect the error.'' 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 execute the deed, 
 nor, generally, wherever a tender of a corrected deed would be vain 
 and useless.^ 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 pay- 
 ment of the purchase money by foreclosure.' If, upon request, a 
 party or privy to the deed refuses to correct a mistake therein by 
 the execution, of a new deed or release or quit claim, costs should be 
 awarded against him.' So, also, if he pertinaciously and contrary to 
 
 ' Dickinson v. Glenneg, 37 Conn. 104. Adams v, Keed, (Utah) 40 Pac. Rep. 
 730, diet. 
 
 « Welshbillig v. Drenhart, 65 Ind. 94. 
 
 ' Lavender v. Lee, 14 Ala. 688. 
 
 *Long V. Brown, 4 Ala. 633; Beck v. Simmons, 7 Ala. 71; Lamkin v. Reese, 7 
 Ala. 170; Black v. Stone, 33 Ala. 337. Heck v. Remka, 47 Md. 68. Jennings v. 
 Brizendine, 44 Mo. 333. 
 
 'Robbins v. Battle House Co., 74 Ala. 499. 
 
 «Robbins v. Battle House Co., 74 Ala. 499. 
 
 ' Axtel V. Chase, 83 Ind. 546. 
 
 ' Hutson V. Furnas, 31 Iowa, 154. 
 
528 MARKETABLE TITLE TO EEAL ESTATE. 
 
 good faith resists an application to equity for reformation of the 
 deed.^ 
 
 The court, it seems, will not reform a deed unless the pleadings 
 contain a prayer for such relief.^ It has been lield, however, that 
 the general prayer for " other and further relief " is sufficient for 
 this purpose.'' 
 
 The reformation of a conveyance, so as to conform to the terms 
 of a parol agreement for the sale of the premises conveyed, ifl not 
 within the Statute of Frauds, and the reason is that a contrary rule 
 would, in such a case, prevent any relief whatever.* Nor is it nec- 
 essary to show such part performance of the parol contract as would 
 take the case out of the Statute of Frauds.^ 
 
 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 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 
 
 ■ Dod V. Paul, 43 N. J. Eq. 303. 
 
 ' Gamble v. Daugherty, 71 Mo. 599. 
 
 «Coe V. N. J. Mid. E. 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. Eep. 428. Conaway v. Gore, 24 Kans. 389, the court, by 
 BnB'WBn, 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 delivery 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 » convey- 
 ance 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 authorities run along the line of the doctrine of specific 
 performance, while the case at bar comes under the head of reformation of con- 
 tracts. The difference between the two is marked and substantial. One aims 
 to enforce a parol contract as though it were in writing, the other seeks simply 
 to conform the written to the real contract. One would avoid the necessity of 
 any writing, the other would simply correct the writing. The principles which 
 control the one are essentially different from those which control the other. 
 ■<• * * It (reformation) is not the substitution of acts in pais for the written 
 contract, but it is the making of the writing the expression of the real contract." 
 
 * Morrison v. Collier, 79 Ind. 417. 
 
EEFOEMATION OF THE CONVEYANCE. 529 
 
 a trustee for the use and benefit of the grantor for life.^ The fact 
 that the premises were, at the time of the execution of the deed, in 
 the adverse possession of a stranger, does not affect the grantee's 
 right to reformation.^ If, by mistake, a deed do not convey the 
 whole of the premises purchased, the remedy of the purcliaser is by 
 suit for reformation of the deed, and not an action on the grantor's 
 covenant of warranty.^ In Indiana it lias been held that where, by 
 reason of a misdescription of lands in a deed, a grantee does not 
 obtain the legal title, and before discovery of the mistake, the lands 
 are sold under execution against the grantee, the purchaser in pos- 
 session acquires no title, either at law or in equity, and cannot main- 
 tain 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 purchaser acquired no title of any kind.'' 
 
 Mistake^ 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 advan- 
 tage of the mistake.' 
 
 § 222. Mistakes of fact. The greater number of suits for the 
 reformation of deeds are founded upon some mistake of fact, either 
 in respect to the contents or to the consideration of the instrument 
 to be reformed. A mistake of fact in an executed contract occurs : 
 (1) Where the conveyance contains or omits some matter or thing 
 which it was intended by the parties should not be so contained 
 therein or omitted therefrom f as where the scrivener omits from 
 
 1 Coleman v. Coleman, Phil. Eq. (K. C.) 43. 
 
 » Thompson v. Marshall, 36 Ala. 504; 76 Am. Dec. 338. 
 
 ' 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.) 885. 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. So, where the draftsman inserted the name of 
 the wrong person as grantee. Bohanan v. Bohanan, 8 111. App. 503. This class 
 of cases will include those in which there are mere clerical errors in the descrip- 
 tion of the premises, such as the insertion of one number instead of another, as 
 67 
 
530 MARKETABLE TITLE TO KEAL ESTATE. 
 
 the deed some provision iii3on which the parties have agreed,^ or 
 employs language insufficient to efEectuate the intent of the parties,^ 
 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, hut those contents themselves 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 proi:)ertj 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.' In 
 this respect conveyances 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 there- 
 from on the ground of mistake ; for, as has been said, there can be 
 
 ■where a deed read "seven degrees and thirty-nine minutes" instead of "seventy 
 degrees and thirty-nine minutes." Claypoole v. Houston, 12 Kans. 324. 
 
 ' As in Atliey v. McHenry, 6 B. Mon, (Ky.) 50. 
 
 'Adams Eq. (oth Am. ed.) 343 (169). 
 
 s Adams Eq. (5th Am. ed.) 339 (168). Jloore v. Munn, 69 111, 591; Briegel v. 
 Muller, 82 111. 257. PuUen v. Savings Bank, 14 R. I. 363. Winnipisseogee Lake 
 Cotton JIfg. Co. V. Perley, 46 N. H. 83. Here a deed founded upon the erroneous 
 computations of a surveyor "n-as reformed. In First Nat. Bank v. Gough, 61 
 Ind. 147, it was said that the neglect of the parties to insert a proper description 
 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 cir- 
 cumstances 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 advisedly insert an insufficient descrip- 
 tion believing it to be sufficient, that would be a mistake of fact. And it is appre- 
 liended 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 efEectuate 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. Christraan v. Colbert, 33 Minn. 509; 
 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. Hileman v. 
 Wright, 9 Ind. 126. 
 
REFORMATION OF THE CONVEYANCE. 531 
 
 no will without the statutory forms, and the disappointed intention 
 of the testator has not these forms.' But a patent ambiguity in a 
 deed may be corrected or removed by a suit to reform the deed ;^ 
 and the authorities to the effect that mistakes or ambiguities in a 
 will cannot be corrected or explained, have no application whatever 
 to the reformation of deeds.' 
 
 The grantor cannot maintain a bill to reform his deed by inserting 
 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.* 
 If by mistake covenants of warranty to which a purchaser 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 conveyance 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 represents the understanding of 
 tl:3 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.' 
 
 § 223. Mistake of law. A mistake of law occurs where the 
 contents of the deed are such as they were intended to be, but 
 through misconstruction or ignorance of the law those contents do 
 not embody the real intention of the parties, nor amount to such a 
 conveyance as the grantee might have insisted upon in the first 
 instance f for example, where the purchaser ignorautly accepts a 
 deed executed by an attorney in fact in his own name instead of 
 
 ' Adams Eq. (5th Am. ed.) 345 (172). 
 
 •Campbell v. Johnson, 44 Mo. 347; Jennings v. Brizendine, 44 Mo. 332. 
 
 "Robbins v. Mayer, 76 Ind. 381. 
 
 * Andrew v. Spurr, 8 Allen (Mass.), 412, In this case the original contract, 
 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 repudi- 
 ated this reservation. 
 
 ' Whittemore v. Farrington, 76 N. Y. 452. 
 
 ' Burt V. Wilson, 28 Cal. 632; 87 Am. Dec. 142. Bradford v. Bradford, 54 N". 
 H, 463. 
 
532 
 
 MARKETABLE TITLE TO EEAL ESTATE. 
 
 that of the prineipaL' 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.^ 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.^ 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, perhajjs a prepon- 
 derance of autliority, adopt the contrary view.* Where it is admit- 
 ted that an instrument execxited in pursuance of a prior agreement 
 by which both jjarties meant to abide, is inconsistent with the pur- 
 pose for which it was designed, or that by reason of some mistake 
 of both parties, it fails to express their intention, a court of equity 
 will correct it, although the mistake be one of law." These cases, it 
 
 ' Personneau v. Blakely, 14 111. 15. 
 
 ' Kelly V. Turner, 74 Ala. 513. This was a case in whicli 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. 436; 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. 233; Warner v. Sisson, 39 N. J. Eq. 141. 
 Dupre V. Thompson, 4 Barb. (N. Y.) 279. Alexander v. Newton, 2 Grat. (Va.) 
 366. Allen v. Elder, 76 Ga. 674; Wyche v. Greene, 16 Ga. 49; Brewton v. 
 Smith, 28 Ga. 443. Brock v. O'Dell, (S. C.) 21 S. E. Rep. 976. Cajedy v. 
 Marcy, 13 Gray (Mass.), 373. Crum v. Loud, 23 Iowa, 319; Nowlin v. Pyne, 47 
 Iowa, 293; Baker v. Massey, 50 Iowa, 399; Reed v. Root, 59 Iowa, 359. Stone 
 V. Hale, 17 Ala. 557; 52 Am. Dec. 185. In McDonnell v. Milholland, 48 Md. 
 540, it seems to have been admitted that upon satisfactory evidence of mistake 
 in conveying premises to the grantees as joint tenants instead of tenants in com- 
 mon, the error would be relieved against. Such a mistake would appear to be- 
 necessarily a mistake of law, as it must be presumed 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 mis- 
 take of the parties in supposing that it was sufficient to create in the grantee 
 such an estate as would be free from liability for the debts of her husband. 
 
 » Kornegay v. Everett, 99 N. C. 30; 5 S. E. Rep. 418. Benson v. Markol, 
 (Minn.) 36 Alb. L. J. 44. 
 
BEFOEMATION OF THE CONVEYANCE. 533 
 
 is believed, establish the better doctrine. Most of the decisions 
 which declare that a deed may not be reformed where the mistake 
 is one of law, are founded upon authorities 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 abrogation 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 laj'- the pur- 
 chase price and other surrounding circumstances, and accepts a con- 
 veyance 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 preparation of the means, proven ineffectual. 
 It is not always easy to determine whether the insufficiency of 
 the conveyance complained of is due to a mistake of fact or to a 
 mistake of law. If the parties agree upon the contents and instruct 
 a draftsman to draw a conveyance in accordance with such agree- 
 ment, 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.' 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 mistake of law.^ Lastly, 
 
 'Adams Eq. (5th Am. ed.) 342 (169). A mistake in the description of land 
 intended to be conveyed is a mistalie of fact and not of law. McCasland ,v. Life 
 Ins. Co., 108 Ind. 130; 9 N. E. Hep. 119. 
 
 ^ Adams Eq. (5th Am. ed.) 344 (170). In other words, if it appear that the 
 instrument contained the precise language the parties Intended it should contain, 
 the mistake, if any, is a mistake of law. Easter v. Severiu, 78 Ind. 540. 
 
534 MARKETABLE TITLE TO EEAL ESTATE. 
 
 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 impres- 
 sion of the parties that the deed was sufficient without them.' 
 There is, therefore, it would appear, a disposition to bring within 
 the rule prohibiting 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.' 
 
 ' 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 misplaced 
 coniidence in the skill of the draftsman, it can hardly be said to be a mistalie of 
 law, but is. rather a mistalie of fact. To this class may be referred those cases 
 which hold that a deed may be reformed by inserting tlie word " lieirs " omitted 
 from the granting clause. Springs v. Harven, 3 Jones Eq. (N. C.) 96; Rutledge 
 V. Smith, 1 Bush. Eq. (N. C.) 383. Wright v. Delafield, 28 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 Clonn. 135; Smith v. Chapman, 4 Conn. 344. As where it 
 licks a seal: Jlichel v. Tinsley, 69 Mo. 442; Mastin v. Holley, 61 Mo. 196. Gal- 
 braith v. Dilday, 153 111. 307; 38 N. E. Rep. 573. Or omits the name of the 
 grantee: Parlin v. Stone, 1 JlcCrary (C. C), 443. Courtright v. Courtright, 63 
 Iowa, 356; 19 N. W. Rep. 355; Nowlin v. Pyne, 47 Iowa, 293. Stowell v. Has- 
 lett, 5 Lans. (N. Y.) 380. So, also, where the signature of the grantor is lacking. 
 Martin v. Nixon, 92 Mo. 36. Mere clerical errors, such as inconsistent dates, 
 may always be corrected. Moore v. Wingate, 53 Mo. 398. If a conveyance 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. 
 
 ' An illustration of this class of cases may be found in the case of Oswald v. 
 Sprqehnle, 16 111. App. 368. The difficulty here was that a clause, by which the 
 
REFORMATION OF THE CONVEYANCE. 535 
 
 § 224. Mutuality of mistake. Fraud. As a general rule, 
 there can be no reformation of a deed on tlie ground of mistake 
 unless the complainant shows that the mistake was mutual.' 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 f 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 conformable 
 continued concurrently in the minds of all parties down to the time 
 of its execution.' 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 averment or 
 proof of fraud, accident or mistake.'' " 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 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 accurately to express it in 
 the writing."^ A mistake of one party ordy may be ground for 
 rescinding or refusing specific performance of the contract, but 
 
 purchaser was exempted from liability from certain immature taxes and assess- 
 ments on the granted premises, was not broad enough to include a certain other 
 assessment. This was held a mistake in the purchaser's construction 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. Remil- 
 lard V. Prescott, 8 Oreg. 37; McCoy v. Bayley, 8 Oreg. 196. 
 
 2 Kerr Fraud & Mistake (Am. ed.), 421. Guilmartin v, Urquehart, 83 Ala. 
 570; 1 So. Rep. 897. Silbar v. Ryder, 68 Wis. 106; 23 N". W. Rep. 106. 
 
 2 Language of the court in Ranney v. Smith, 33 N. J. Eq. 28, citing Kerr P. 
 &M. (Am. ed.)431. 
 
 " Grubb's Appeal, 90 Pa. St. 228. 
 
 ^St. Anthony's Falls W. P. Co. v. Merriman, 35 Minn.' 42; 37 N. "W. Rep. 199. 
 Here the deed conveyed a water power of "fifty cubic feet pt-r second," and the 
 plaintiff contended that both parties being mistaken in the belief that the amount 
 specified was sulBcient to operate the machinery of a certain mill, he was enti- 
 tled 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. 
 
536 MARKETABLE TITLE TO REAL ESTATE. 
 
 cannot justifj' an alteration of the terms of the agreement, which, 
 in such a case, would necessarily result from a reformation of the 
 conveyance.' The mistake must not only have been mutual, but 
 the pleadings must allege it to liave been so. Therefore, if neither 
 the bill nor the accompanying affidavits contain such an allegation, 
 the comj)lainant will not be entitled to relief.^ 
 
 The rule that a mistake must be mutual to entitle the gi-antee to 
 relief does not mean that the mistake must be mutual in all cases 
 between the grantor and the grantee ; it suffices if the mistake is 
 mutual between the grantee and other persons having interests 
 under the deed, the grantor being a mere nominal party.'' Nor does 
 the rule apply where the party against whom relief is sought 
 fraudulently permitted the other party to act in ignorance of the 
 mistake.* If it appear that the mistake was known to one of the 
 parties, Avho, with knowledge of the ignorance of the other, never- 
 tlieless kept silent when he should have spoken, the party having 
 knowledge will bo 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.^ ISTor 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.^ Therefore, wliere the grantor inserts in his deed a provision 
 
 1 Adams Eq. (5th Am. ed.) 344 (171). 
 
 ' Schoonover v. Dougherty, 65 Ind. 463. Ramsey v. Smith, 33 X. J, Eq. 38. 
 
 'Murray v. Sells, 53 Ga. 357. In this case Sells sold his homestead and pur- 
 chased a propertjf from Rondeau, wlio 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 igno- 
 rance, inadvertence or mistake, procured a conveyance from Orme to Sells' wife 
 alone, omitting the child. Here there was no mistake 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 par- 
 ties in interest, the deed was reformed so as to express their true intent. 
 
 *Danc V. Berber, 38 fl'is. 316; James v. Cutler, 54 Wis, 173; 10 IS. W. Rep. 
 147. De Jarnatt v. Cooper, 59 Cal. 703. Withouse v. Scliaack, 57 How. Pr. 
 (N. Y.) 310. Winans v. Huyck, 71 Iowa, 459; 33 N. W. Rep. 433. Bergen v. 
 Ebey, 88 111. 369. Here, after instructions had been given the draftsman by 
 the parties, the grantor went to him and gave him other instructions. 
 
 'Roszell V. Roszell, 109 Ind. 3.54; 10 N. E. Rep. 114. 
 
 « Hitchins v. Pettingill, 58 N. H. 3. Monroe v. t^kelton, 36 Ind. 303. 
 
EEFOEMATION OF THE CONVEYANCE. 537 
 
 hj 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 pro- 
 vision, equity will reform the deed.' 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 occu- 
 pying a relation of confidence toward him.^ 
 
 § 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 descrip- 
 tion 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.^ But the same court 
 has held that this rule does not apply in its fullest sense to the cor- 
 rection of mistakes merely in the description of the premises.* It 
 is plain that a rigid enforcement of such a i-ule 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 instrument, such as the 
 omission of the name of the grantee and the like. A court might 
 well hesitate to reschid an executed contract where the mistake 
 complained of was the consequence of the complainant's negli- 
 gence, but there seems to be no very strong reason why reformation 
 
 1 Savings Inst. v. Burdick, 30 Hun (N. Y.), 104. See, also, Wells v. Yates, 
 44 N. Y. 525; Botsford v. McLean, 45 Barb. (N, Y.) 478; Rider v, Powell, 38 
 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 diligence. Wit- 
 house v. Schaack, 57 How. Pr. (N. Y.) 310. Where the parties failed to insert 
 the number of the square in which the premises were situated, not from accident 
 or mistake, but from mere want of recollection, it was held that the deed could 
 not bo reformed, though the grantee might compel specific performance. Leon- 
 ard V. Mills, 24 Kans. 231. But inasmuch as the result would be the same in 
 cither case, it is not easy to perceive why the deed should not have been reformed 
 to prevent circuity of action. 
 
 « Elliott V. Saokott, 108 U. S. 132. Morrison v. Collier, 79 Ind. 417. 
 68 
 
538 MAEKETABLE TITLE TO EEAL ESTATE. 
 
 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 lield 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 such negligence as will 
 preclude him from relief.^ 
 
 § 226. Nature and degree of evidence required. In many 
 instances mistakes in conveyances will be admitted by the parties, or 
 will appear upon the face of the instrument itself. No difficulty 
 arises in such cases. ^ But if tlie defendant deny tlie existence of 
 any mistake, and the alleged mistake does not appear upon the face 
 of the conveyance itself or of the documents connected therewith, 
 much difficult}' may arise in the proof, in view of the presumption 
 of law that the con^-eyanee is the last expression of the intention of 
 the parties, and of the rule which forbids the introduction of parol 
 testimony of any contemporaneous agreement or understanding 
 inconsistent with the conveyance. Parol testimony, however, is 
 always admissible to show a mistake f the difficulty lies in distin- 
 guishing 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 with- 
 out the aid of extrinsic evidence.* Thus, in one case, the court went 
 80 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.^ But if evidence aliunde is relied 
 
 ' Schaatz v. Keener, 87 Ind. 358. Silbar v. Ryder, 63 Wis, 106; 23 N. TV. Kep. 
 106. 
 
 ° If the truth of the bill he admitted by demurrer, and the allegations show- 
 ing a mistake be clear and positive, the complainant will be entitled to a decree. 
 Moore v. Munn, 69 111. 591. 
 
 ' Bush V. Hicks, 2 Thomp. & C. (N. Y.) 856. Farley v. Bryant, 33 Me. 474. 
 Wagenblast v. "Washburn, 13 Cal. 208. In a suit to reform a deed, evidence 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. 
 
 * Wagenblast v. Washburn, 12 Cal. 208. Creighton v. Pringle, 3 S. C. 77. 
 Here the deed was reformed by substituting the word "hereinbefore" for "here- 
 after," the context showing that the former word was intended. 
 
 ' Michael v. Tinsley, 09 Mo. 442. 
 
EEFOEMATION OF THE CONVEYANCE. 539 
 
 upon to show a mistake it must be in the highest degree clear, posi- 
 tive and satisfactory.' The burden devolves upon the complainant 
 to show, beyond a reasonable doubt, the existence of a mistake.^ 
 
 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 ujDon 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.^ 
 
 § 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.* The reason is that delay in such cases increases the 
 difficulty of placing the parties in statu quo, or may affect the rights 
 of third parties. There has been a disposition in some cases to 
 extend tliis rule to suits for tlie reformation of deeds,' 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 defendant has not 
 
 1 Stoj-y Eq. Jur. § 152; Adams Eq. (5th Am. ed.) 345 (171). Sawj-er v. Hovey, 
 3 Allen (Mass.), 331; 81 Am. Dec. 659. Nicoll v. Mason, 49 111. 358; Hamlon v. 
 Sullivant, 11 111. App. 428. Wells v. Ogden, 30 Wis. 637. Bates v. Bates, 56 
 Midi. 405; 23 N. W. Kep. 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 instruments. Remillard v. Prescott, 
 8 Oreg. 37. 
 
 ' Miller v. Rhuman, 62 Ga. 332. Willis v. Sanders, 51 N. Y. Super. Ct. 384. 
 McTucker v. Taggart, 29 Iowa, 478. St. Anthony's Palls 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. 
 
 '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. 
 
540 MARKETABLE TITLE TO REAL ESTATE. 
 
 l)een made worse bj the delay, and the rights of no third party have 
 intervened.^ Nor in any event will laches be imputed to the com- 
 plainant until after discovery of the mistake.^ ISTor where it appears 
 tliat the complainant has made repeated efforts to have the mistake 
 corrected without a law suit." A mistake occurred in a deed in 
 1816. The grantee took possession and remained in possession until 
 1848, when one who had succeeded to the rights of the grantor in 
 some way obtained possession. Tlie grantee filed a bill in 1851 to 
 "correct the mistake, and it was held that he was not precluded from 
 reHef by the delay.* The case tends to establish the principle that 
 laches is not imputable to tlie grantee until after some adverse claim 
 to the premises lias been made. 
 
 § 228. Defective execution of statutory power. It seems that 
 •equity will not, as a general rule, aid a defective execution of a 
 power, that is, will not supply any matter for the want of which 
 the legislature declares a deed void, since the effect would be to 
 make nugatory the legislative enactment.' 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.^ 
 
 § 229. IN FAVOR OF AND AGAINST WHOM RELIEF MAY BE 
 HAD. In general. The right to reformation of a deed on the 
 ground of mistake is not confined to -the immediate parties to the 
 instrument, but extends to all persons who stand in the place of 
 such parties and who are injured by the mistake.'' To maintain the 
 action the complainant must be either a party or a privy to the 
 
 'Canedy v. Marcy, 13 Gray (Mass.), 373. Mills v. Lockwood, 42 111. 111. 
 First Nat. Bank v. Wentworth, as Kans. 183. Kirk v. Zell, 1 McArthur (D. C), 
 116. In Farley v. Bryant, 33 jMe. 474, it was said that lapse of time would be 
 immaterial to the right of reformation, if the premises were unimproved lands. 
 
 ^ Stone V. Hale 17 Ala. 557; 53 Am. Dec. 185. 
 
 s Thompson v. Marshall, 36 Ala. 504; 76 Am. Dec. 838. 
 
 " Farmers & Jlech. Bank v. Detroit, 13 Mich. 445. 
 
 = 1 Story Eq. Jur. § 117. See infra, this chapter, § 238, " Married Women." 
 
 8 Houx V. Bates County, 61 JIo. 391. 
 
 ■■ See, generally, cases cited below. Pomeroy Eq. Juris. §§ 845, 870, 1376. 
 Mills V. Lockwood, 42 111. 112. 
 
EEFOEMATION OF THE CONVEYANCE. 541 
 
 deed.' Suits for the reformation of conveyauces on the ground of 
 mistake have been frequently brought hj remote assignees of the 
 original grantee.^ 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.' ISTor can a grantee, immediate or 
 remote, compel a reformation of the deed so long as he is in default 
 
 ' Story Eq. Jur. § 165. Willis v. Sanders, 51 N. Y. Super. 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 to entitle him 
 to maintain a suit to reform the deed. 
 
 The complainant should not neglect to aver and prove that he holds under the 
 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; and, as this is 
 essential to his recovery, he must fail on this record. None of the deeds in the 
 chain of title appear. It seems 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." 
 
 ' Instances may be found in Taber v. Shattuck, 55 Mich. 370; 21 N. W. Rep. 
 371. Bradshaw v. Atkins, 110 111. 338. 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 Atl. Rep. 187, the suit was between grantees of the 
 original grantor and grantee respectively. 
 
 ' Rogers v. Abbott, 37 Ind. 138. No authorities were cited to this proposition, 
 and the grounds upon which it rests are by no means clear. Land had been 
 erroneously described by Conley in his deed to Abbott as the 8. E. instead of the 
 N. E. quarter. This error was perpetuated through several mesne conveyanops, 
 including a sheriil's deed, until the land came to the plaintiff, possession of the 
 N. E. quarter passing with all the deeds. Meanwhile Abbott, discovering the 
 error, procured Conley to execute a deed of the N. E. qiiarter to his (Abbott's) 
 son, who thereupon claimed the land in plaintiff's possession. Plaintiff then 
 brought an action to reform the original 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. 363, 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 reforclosing 
 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, 31 Neb. 
 680; 33 N. W. Rep. 434, a deed under a judicial sale was reformed at the instance 
 of a remote grantee. In Martin v. Dollar, 33 Ala. 433, it was held that a sheriff's 
 deed will not be reformed for error in the description of the premises, if the sale 
 
542 MARKETABLE TITLE TO EEAL ESTATE. 
 
 in the payment of any part of the purchase money.' He who asks 
 equity must do equity. Keformation 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 
 established, as where the deed includes lands not purchased by the 
 grantee and not intended to be conveyed.' But if the existence of 
 the mistake is denied, the position of the grantor becomes difficult, 
 in view of the maxim verba chartaruvi fortius accipiuntur contra 
 ■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.^ ISTor will 
 the court reform a deed, absolute on its face, by inserting a con- 
 dition therein, at the suit of the grantor.'' ISTor 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.^ 
 
 itself is a nullity, as having been made under a void judgment. A mistake in 
 the description of mortgaged premises may be reformed, 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. 333; Gilbreath v. Dilday, 153 111. 207; 88 N. E. Rep. 
 573. 
 
 ' McFadden v. Rogers, 70 Mo. 431. Conaway v. Gore, 21 Kans. 725. 
 
 " Bush V. Hicks, 60 N. Y. 298. Puchs v. Treat, 41 Wis. 404. Damm v. 
 Moors, 48 Mich. 510. Wilcox v. Lucas, 121 Mass. 21. Hutsou v. Fumas, 31 
 Iowa, 154. Burr v. Hutchinson, 61 Me. 514. Pugh v. Brittaiu, 3 Dev. Eq. (N. 
 C.) 34. Cooke v. Husband, 11 Md. 493. 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. 
 
 * Lewis V. Lewis, 5 Oreg. 169. 
 
 * Clark V. Drake, 3 Pinney (Wis.), 228; Law v. Hyde, 39 Wis. 845; 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 prem- 
 ises should cease to be used as a site for a seminary. 
 
 ' Wittbecker v. Watters, 69 Tex. 470; 6 S. W. Rep. 788. 
 
EEFOEMATION OF THE CONVEYANCE. 543 
 
 Kor where he insists upon the payment of the purchase money 
 wliile seeking rehef on the ground of the mistake.' 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.' 
 
 Against whom reformation will be decreed. A deed will be 
 reformed in a case of mistake, not only as against the original 
 grantee, but as against all who claim under, or are in jDrivity with 
 him, such as heirs, devisees, voluntary grantees, judgment creditors 
 and purchasers with notice of the mistake.' The person or persons 
 wiiose duty it is to reform the deed, or who will be affected by the 
 reformation, should always be made parties defendant to the suit.* 
 But it does not follow that it is necessary in all cases to make the 
 grantor a defendant ; it frequently happens that he stands indif- 
 ferent, for example, where the deed is made in pursuance of direc- 
 tions given by one who had the equitable title only, and who sold 
 his bargain tb the person who became the grantee. In such a case 
 it is not necessary to make the grantor a party, for his interests are 
 in no way affected, and the court may appoint a commissioner to 
 execute the reformed deed.^ A remote grantee who holds under a 
 deed ^pithout warranty, need not make his immediate grantor a 
 party to his suit for reformation.^ If, however, the plaintiff holds 
 under mesne conveyances with warranty, it has been held that he 
 must make the grantees parties.^ Where the grantor conveys to 
 
 ' Dorr V. Steichen, 18 Minn. 36. 
 
 ' 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 igno- 
 rant, he will be entitled to reformation. 
 
 « Adams Eq. (5th Am. ed.) 340 (169), n. Grayson v. Weddle, 80 Mo. 39. 
 
 * Goodman v. Randall, 44 Conn. 321. Bullock v. "Whipp, 15 R. I. 195; 3 Atl. 
 Rep. 309, obiter. 
 
 "■ 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 intended to be 
 conveyed to the plaintiff. See, also, Roszell v. RoszcU, 105 Ind. 77; 4 N. E. 
 Rep. 423. 
 
 « Farmers & Mech. Bank v. Detroit, 13 Mich. 445. 
 
 ' Davis V. Rogers, 33 Me. 333. 
 
544 MARKETABLE TITLE TO EBAL ESTATE. 
 
 two 23urchasers, but makes a mistake as to the interest which each 
 is to receive, lie is not a necessary party to a bill to correct the 
 mistake.^ 
 
 § 231. Purchasers and creditors. If the vendor should sell 
 lot A, but by mistake should convey to the purchaser lot B, and 
 afterwards 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 sec- 
 ond purchaser.^ ISTeither could such a deed be reformed as against 
 judgment creditors of the vendor, in those States in which judg- 
 ment creditors are protected by the registry acts.^ But as against a 
 subsequent purchaser, and, it is apprehended, a creditor of the 
 
 ■ Briegel v. Moehlar, 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. Gouglt, 61 Inr^. 
 147; Hewitt v. Powers, 84 Ind. 295. Parley v. Bryant, 32 Me. 474; Whitman v. 
 Westman, 80 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. Lally v. Holland, 1 Swan 
 (Tenn.), 396. Whether an execution creditor who buysin the realty of the debtor 
 at a sale under the execution is a purchaser for value without notice, and entitled to 
 object to the reformation of a prior deed, which, when reformed, will embrace 
 the purchased premises, gucere f 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. 
 
 ^Preemau on Judgments, §§ 357, 359. Goodbar v. Dunn, 61 Miss. 618. Mar- 
 tin V. Nixon, 92 Mo. 26; 4 S. W. Rep. 503. Galway v. Melchow, 7 Neb. 286. 
 Bush V. Bush, 83 Kans. 556. Ruppert v. Haske, 5 Mackey (D, C), 262. In Ala- 
 bama 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 Missis- 
 sippi, under a statute declaring unrecorded deeds void as to subsequent credit- 
 ors 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 j udgment rendered in favor of a party who had no notice of the mis- 
 take 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 execution of a deed to certain premises, but 
 whose judgment was obtained afterwards, does not stand on the footing of a 
 hona 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. 
 
EEFOEMATION OF THE COiNVEYANOE. 545 
 
 grantor, with notice of tlie mistake, such deed might always be 
 reformed in equity, upon the same principle that one purchasing 
 with notice of an equitable estate in the premises in favor of a third 
 person, may, himself, be compelled to perform the contract of the 
 vendor.'' Possession of the premises in i-espect 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, contains a totally erroneous 
 description of the land intended to be conveyed, would not be suffi- 
 cient to put a subsequent purchaser on inquiry.^ 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 con- 
 
 1 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, 18 Iowa, 445. 
 In Fenwick v. Buff, 1 McArtli. (D. C.) 107, an erroneous description in a deed 
 was con-ected, 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 foot- 
 ing of a subsequent purchaser without notice. It has been held that a court of 
 equity will not, as against a subsequent purchaser, set up or reform a deed abso- 
 lutely void for want of due execution by the grantor, even though such pur- 
 chaser 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 mortgage, 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 mort- 
 gage. The court refused to reform the mortgage and enforce it against Parker 
 and his assignees, 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 
 decision is open to much doubt. In Bullock v. Whipp, 15 R. I. 195; 3 Atl. Rep. 
 309, a mortgage, void for want of a seal was leformed as against a subsequent 
 attaching creditor of the mortgagor. See, also, .Lebanon Sav. Bank v. HoUen- 
 beck, 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 foreclosed 
 against an innocent purchaser; but it does contain a description, and this descrip- 
 tion, 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 
 69 
 
546 MARKETABLE TITLE TO EEAL ESTATE. 
 
 Teyed, no reason is perceived why sucli a deed would not be suffi- 
 cient to charge the purchaser with notice by putting him on inquiry.' 
 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.^ And such a purchaser will not be protected unless 
 he paid a valuable 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.^ 
 
 § 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 voluntary 
 conveyance of lands. Where such a deed fails to take effect, the 
 title remains in the grantor, and he may make what disposition of 
 the premises he chooses.'' 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 draftsman.^ But this 
 rule does not apply where the controversy is between those claiming 
 under the deed, the grantor standing indifferent.* ISTor where the 
 grantee has taken possession, made valuable improvements and 
 executed a mortgage on the premises, and the application for cor- 
 rection of the deed is made by the mortgagee.'' Deeds made in 
 consideration of " services rendered and love and affection " ^ and 
 " in consideration of one dollar and natural love and affection " ' 
 have been held not voluntary within tlie rule denying the refornia- 
 
 in tlie mortgage," citing Wade Notice, §319. McAleer v. MoMullen, 2 Pa. St. 33. 
 Parker v. Teas, 73 Ind. 335. See, also, Cass County v. Oldham, 75 Mo. 50. 
 
 ' Dayton v. Citizens' Nat. Bank, 11 111. App. 501. 
 
 ' Davis V. Rogers, 33 Me. 533. 
 
 3 First Nat. Bank v. Wentworth, 28 Kans. 183. 
 
 ' 2 Story Eq. Jur. § 793; Adams Eq. (5th Am. ed.) 343 (169), note. Preston v. 
 Williams, 81 111. 176. Else v. Kennedy, 67 Iowa, 376; 25 N. W. Rep. 290. Dick- 
 inson V. Glenney, 27 Conn. 104. Eroman v. Froman, 13 Ind. 317. Eaton v. 
 Eaton, 15 Wis. 259; Smith v. Wood, 12 Wis. 382. Dupre v. Thompson, 4 Barb. 
 (N. Y.) 379. 
 
 'Powell v. Morrissey, 98 N. C. 426; 4 S. E. Rep. 185. 
 
 « Adair v. McDonald, 42 Ga. 506. 
 
 ' Cummings v. Freer, 26 Mich. 128. 
 
 « Baker v. Pyatt, 108 Ind. 61; 9 N. E. Rep. 113. 
 
 'Mason v. Moulder, 58 Ind. 1. But see Powell v. Morrissey, 98 N. C. 426; 4 
 S. E. Rep. 185. 
 
EEFOEMATION OF THE CONVEYANCE. 547 
 
 tion of voluntary conveyances. A voluntary deed may, of course, 
 be reformed at the suit of the grantor in a case of mistake.' 
 
 § 233. Married women. A court of equity will not reform the 
 deed of a married woman when the mistake complained of consists 
 in the omission of some statutory requisite,^ 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 
 tlie defective execution of a statutory power.^ But a mistake in a 
 mere matter of description in a married woman's deed may always 
 be reformed,* and confessed clerical errors therein will be corrected. ° 
 And mistakes of every kind in her deed will be corrected in those 
 States in whicli statutes exist, placing the contracts of married 
 women upon the same footing as contracts of femmes sole.'' In 
 California, under a statute allowing the amendment of defective 
 certificates of acknowledgment, the court permitted a defective cer- 
 tificate of acknowledgment by a married woman to be reformed.^ 
 
 'Mitchell V. Mitchell, 40 Ga. 11; Crockett v. Crockett, 73 Ga. 647. 
 
 = Martin v. Dwelly, 6 Wend. (N. Y.) 9; 31 Am. Dec. 345. Dickinson v. Glen- 
 ney, 37 Conn. 104. Holland v. Moon, 39 Ark 130. Grapengether v. Ferjervary, 
 9 Iowa, 163; 74 Am. Dec. 336. Hamar v. Medskar, 60 Ind. 413. 
 
 ' Williams v. Cudd, 36 So. Car, 313; 3 S. E. Rep. 14. 
 
 ■•Gardner v. Moore, 75 Ala. 894; 51 Am. Rep. 454. Carper v. Munger, 63 
 Ind. 481; Wilson v. Stewart, 68 Ind. 394; Styes v. Robbins, 76 Ind. 547; Jones 
 V. Sweet, 77 Ind. 187; Hewitt v. Powers, 84 Ind. 395. 
 
 » Savings & Loan Assn. v. Meeks, 66 Cal. 371; 5 Pac. Rep. 634. 
 
 « Bradshaw v. Atkins, 110 111. 333. Christman v. Colbert, 38 Minn. 509; 34 
 N. W. Rep. 301. 
 
 ' Hutchinson v. Ainsworth, 63 Cal. 286. Without the aid of a statute, defects 
 in a certificate of acknowledgment, whether of a married woman or any other 
 person, caimot be supplied. Ante, p. 73. 
 
BOOK II. 
 
 OF REMEDIES IN DISAFFIRMANCE OR RESCISSION OF THE CON- 
 TRACT OF SALE. 
 
 CHAPTER XIII. 
 
 OF RESCISSION BY ACT OF THE PARTIES. 
 
 GENERAL PRINCIPLES, g 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 
 he 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, becaiise 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 dia- 
 metrically 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 haring 
 been devoted to the examination of remedies in affirmance 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. 
 
 Rescission is the abrogation or annulment of a contract.' The 
 
 ' 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 Performance, 
 
OF EKSCISSION BY ACT OF THE PARTIES. 549 
 
 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,' which consent may be 
 express or implied from the acquiesence of the one party in the acts 
 of the other. But, in order to bind the one party by his presumed 
 acquiescenc'e in the acts of the other, it must clearly appear that he 
 had notice of the intent of the other to rescind,^ or knowledge of such 
 acts on the part of the latter as constituted in themselves a rescis- 
 sion.^ The proper course to be pursued by the party intending to 
 rescind is to notify the other party of that intent.* This form of 
 relief is one to which the parties, acting in good faith, not infre- 
 quently resort, the purchaser agreeing to give up the premises and 
 the vendor returning the purchase money. If, upon a rescission of 
 the contract by consent, the vendor fail to return the purchase 
 money, the vendee may recover it back ; the law implies an agree- 
 
 §998; "(1) A simple agreement between the parties to rescind the contract. 
 (3) 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 con- 
 tractors. (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 exer- 
 cise of the right to rescind which results to one party from the other party's abso- 
 lute refusal to perform the conti'act 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; 3 Warvelle Vend. 834, 947. Boyce v. McCullough, 
 S Watts & S. (Pa.) 439; Lauer v. Lee, 42 Pa. St. 16.5. 
 
 ^ A parol agreement discharging the vendee from his contract as to part 
 of land on account of defective title is a good defense to an action for the pur- 
 chase money, pro tanto. Hussey v. Roquemore, 37 Aln. 381. Carney v. New- 
 beary, 34 111. 203. Alexander v. TJtley, 7 Ired. Eq. (IT. C.) 243. 
 
 s 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.) 343; McDowell v. McKesson, 6 Ired. Eq. 
 (N C.) 378. 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. 
 R;p. 33: 
 
550 MAEKETABLE TITLE TO EEAL ESTATE. 
 
 ment on the part of the vendor to repay.' And where tlie contract 
 is rescinded by the acts of both parties, the purchaser may recover 
 back wliat he has paid, though the contract provides that upon 
 default in the payment of the purcliase money the purchaser shall 
 forfeit such payments as he may have made.^ 
 
 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 
 lias not a good title. ^ 
 
 § 235. RESCISSION BY THE ACT OP ONE PARTY 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,^ or where the vendor, in default of payment of the 
 purchase money, resells the premises to a stranger.^ 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 proceed 
 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 con- 
 tract, 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." 
 
 A contract can be rescinded in jjais of course only by consent of 
 all the contracting parties. But such consent need not be expressed 
 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 
 
 " Beaman v. Simmons, 76 K. Y. 43. 
 
 'Shively v. Land Co., (Cal.) 33 Pac. Rep. 848, citing several California 
 decisions. 
 
 = Getty V. Peters, 83 Mich. 661; 46 N. W. Rep. 1036; Converse v. Blumrich, 
 14 Micli. 109; 90 Am. Dec. 230. 
 
 * 1 Sugd. Vend. (8th Am. ed.) 537 (3.>S). Refusal to execute a conveyance is a 
 rescission by the vendor. 3 Sugd. Vend. {8th Am. ed.) 213 (563). 
 
 ^Ketehum v. Evert-son, 13 Johns. (N. Y.) 359; 7 Am. Dec. 384. 
 
 « Chitty Cont. (lOth Am. ed.) S13; (-;; .vej. 
 
OF RESCISSION BY ACT OF THE PAETIES. 551 
 
 contract as rescinded.' A subsequent conveyance of the prenuses 
 by the vendor, after the purchaser lias defaulted in the payment of 
 the purchase money, is not necessarily a rescission of the contract. 
 The vendor may assitrn big 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.^ A rescission of the 
 contract by act of the parties, must be concurred in by both parties, 
 and must afl'ect all parties previously bound. 
 
 When it is said that one party caimot 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, 
 but 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 afEect 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 purchaser 
 elect to treat the contract as rescinded, his election must be evi- 
 denced 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 
 
 • Parsons Cont, 677, Lewis V. White, 16 Oliio St. 444. In Trevino v. Cantu, 
 61 Tex. 88, it appeared tliat upon the execution of a deed with general warranty, 
 the parties executed at the same time another instrument providing that if tlie 
 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 after\vards 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 huy 
 out the adverse claimant if he desired to do so, and to every other advantage 
 resulting from possession, the court saying that to allow a rescission in oppositian 
 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. 
 
 2 Davidson v. Keep, 61 Iowa, 218; IGX W. Rep. 101. Compare Dotson v. 
 Bailey, 76 Ind. 434. 
 
552 MARKETABLE TITLE TO EEAL ESTATE. 
 
 obligation by merely declaring that he will proceed no further in 
 tlie business.^ 
 
 § 236. STATUTE OF FRAUDS. It has been decided that a resrds- 
 sion of a contract of sale of lands by mutual agreement, being a 
 contract relating to real estate, is within the Statute of Frauds,^ and 
 must be in writing, but the weight of authority is that a rescission 
 l)y parol is valid.^ The rescission, however, must be accompanied 
 by acts leaving no doubt of the intent. Such as cancelling the 
 agreement or removing from the premises.* 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 wliile the statute provides that no action shall be brought on 
 any contract of the description there specified, except it be in writ- 
 ing, it does not provide that every such written contract shall sup- 
 port 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 byj)arol,and waiver by mutual parol agreemeut, 
 therefore, furnishes a sufficient defense to an action for specific 
 performance." ^ 
 
 'Lewis V. McMillen, 41 Barb, (N. Y.) 420. Bryoe v. McCulloch, 3 Watts & 
 Serg. (Pa.) 429. 
 
 2 Dial V. C'rain, 10 Tex. 444. 
 
 2 2 Warvelle Vend. 834; Fry Specific Perf. § 1000. Boyce v. McCulloch, 3 
 Watts & Serg. (Pa.) 439; Goucher v. Martin, 9 Watts (Pa.), 106. In Gunby v. 
 Sinter, 41 Md. 237, tlie 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 Covt. 97; 2 
 Taylor Ev. § 1095; Benjamin Sales, 159; Browne Stat. Frauds, §| 429^36. 
 
 •'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 Goman v. Salisbury, 1 Vern. 240; 
 Inge V. Lippingwell, 2 Dick. 469; Davis v. Symonds, 1 Cox, 402; Bobinson v. 
 Page, 3 Russ. 114. 
 
OF VIRTUAL RESCISSION OF THE CONTRACT BY PROCEEDINGS 
 AT LAW. 
 
 Of Pkocj;kdings at Law Wheee the Conteact is Executoey. 
 
 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. § 338. 
 
 WHAT ACTION PURCHASER SHOULD BRING. § 239. 
 
 DETENTION OF THE PURCHASE MONEY. § 340. 
 
 EXCEPTIONS AND ftUALIFICATIONS. § 241. 
 
 WHAT OBJECTIONS TO TITLE MAY BE MADE. § 242. 
 
 EXPENSES OF EXAMINING THE TITLE, g 343, 
 
 BURDEN OF PROOF. MISCELLANEOUS RULES. § 244. 
 
 RIGHT TO RESCIND WHERE THE ESTATE IS INCUMBERED. 
 
 § 245. 
 BUYING WITH KNOWLEDGE OF DEFECT OR INCUMBRANCE. 
 
 §346. 
 CHANCING BARGAINS. § 347. 
 EFFECT OF ACCEPTING TITLE BOND. § 348. 
 
 INQUIRY INTO CONSIDERATION OF SEALED INSTRUMENT. § 249. 
 RIGHT TO ENJOIN COLLECTION OF PURCHASE MONEY, g 350. 
 RIGHTS AGAINST TRANSFEREE OF PURCHASE-MONEY NOTE. 
 
 §251. 
 REFUSAL OF VENDOR TO CONVEY FOR WANT OF TITLE. § 253. 
 TENDER OF PURCHASE MONEY AND DEMAND OF DEED. § 253. 
 OFFER TO RESCIND. § 254. 
 PLEADINGS. § 355. 
 
 § 237. GENERAL PRINCIPLES. Strictly speakino; 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 pro^'ince of a court of equity. But 
 a virtual rescission of the contract is accomplished at law by allow- 
 ing the purchaser, in case the title fails, to recover back so much of 
 the purchase money as he may have paid,' or to detain that which 
 
 ' 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 proceedings at 
 70 
 
554 MAKKETABLE TITLE TO REAL ESTATE. 
 
 remains unpaid, upon condition in either case tiaat be restore the 
 premises to the vendor, and place him substantially in the same con- 
 dition in -which be 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.-' 
 
 The right of the purchase!' 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 undistui-bed 
 possession and enjoyment of the premises. The right to relief in 
 case of fraud by the vendor in respect to the title is usually enforced 
 in equity, though an action at law may be maintained to recover 
 damages for the deceit. There have been few more fruitful 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 attributed 
 principally to the carelessness and indifference of purchasers in 
 omitting an examination of the title before completing the contract ; 
 to their desire to escape from injudicious and unprofitable bargains ; 
 
 la-w -when 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 convej'ance to be canceled, and renders a decree con- 
 ferring 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 recov- 
 ery of land, or for the recovery of damages, and allhough nothing is said con- 
 cerning it, either in the pleadings or in the judgment, a contract era 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 obtained in the legal action.'^ 
 1 Pomeroy Eq. Jur. g 110. 
 I Post, ch. 32. 
 
EIGHT TO RECOVER BACK PURCHASE MONEY ON FAILURE OF TITLE. 555 
 
 and to the fraud of the vendor hi 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 : ' (1) Where the rescission is volun- 
 tary, and witli 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) 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) Where neither party is ready to complete the 
 contract at the stipulated time, but each is in default.^ 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 elsewhere considered in this work.'' We have, tliere- 
 fore, to do now only with cases in which the vendor cannot, for 
 want of title, perform the contract on his part. The state of 
 American law respecting 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, hefore quitting the subject, should glance 
 over the entire series. Those propositions may be thus stated : 
 
 I. A purchaser of land m,ay, so long as the contract remains 
 unexecuted iy a conveyance, as a general ride, recover iach or 
 detain the jpxtr chase money, if the title of the vendor he not such as 
 the purchaser is, under the contract, entitled to require.^ 
 
 II. A purchaser of lamds cannot, as a general rule, while the 
 contract is executory, recover hack the purchase money on failure 
 
 'Bastonv. Clifeord, 68 111. 67; 18 Am. Rep. 547; Bryson v. Crawford, 68 III. 
 363. 
 
 « Id. Citing Smith v. Lamb, 26 111. 396; 79 Am. Dec. 881; Bannister v. Read, 
 1 Gilm. (111.) 99; Battle v. Rochester City Bank, 5 Barb. (N. Y.) 414, 1 Chit. PI. 
 355. ' 
 
 * Id. Citing Towns v. Barrett, 1 Term R. 138. Gillett v. Maynard, 5 Johns. 
 (N. Y.) 85; 4 Am. Deo. 329. 1 Chit. PI. 356. 
 
 '■ Id. Citing 1 Chit. PI. 355; Chit, on Contract (5th Am. ed.), 633. 
 ' Ante, eh. 23; post, chs. 29 and 35. 
 
 * This chapter. 
 
556 MAEKETABLE TITLE TO REAL ESTATE. 
 
 of the title, or resist the payment thereof, without restoring the 
 premises to the vendor and placing him in statu quo} 
 
 III. If the contract has been executed ly a conveyance of the 
 land to the purchaser without general covenants for title, he can, 
 if the title fails, neither recover lack the purchase money nor 
 detain that which remains unpaid, either at law or in eqtiity, 
 sinless the vendor was gtdlty of fraud, or the contract was founded 
 in mistake of the parties as to some fact upon which the title 
 depended? 
 
 W 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 vjould give the grantee a present 
 right to recover substantial damages against the grantor, the former 
 v:ill, in an action against him for the pu,rchase money, be allowed 
 to set %ip such a breach as a defense by way of recoupment of the 
 plaintif's demand. If there has been no such breach the grantee 
 cannot detain the p>urchase inoney? 
 
 Y. If the contract hcts been executed by a conveyance with a cove- 
 nant of seisi?} or of good right to convey, and it clearly appears 
 that the covenantor had no title, the covenantee, though he has not 
 been disturbed i?i the possesion, 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 of the purchase money, upon 
 condition that he convey the premises to the covenantor, and do all 
 that may he necessary to put him in statu quo.* 
 
 VI. After a contract for the sale of lands hris been executed by 
 a conveyance with covenants for title, thejnirchaser cannot, though 
 he has been evicted by one claiming under a paramount title, or 
 though he lias discharged an incumbrance upon the estate, recover 
 back the purchase money eo nomins, either by suit in equity, or 
 hy action agcdnst the vendor for money had and received to the 
 j)laintiff^s use. His remedy is upon the covenants for title.^ 
 
 1 Post, ch. 25. 
 = Post, ch. 27. 
 ' Ante, ch. 16. 
 * Post, ch. 26. 
 'Post, ch. 28. 
 
EIGHT TO EECOVEE BACK PURCHASE MONEY ON FAILUEE OF TITLE. 557 
 
 VII. If the vendor fraudulently induced the purchaser to accept 
 a had title the latter may at law recover hack or detain the pur- 
 chase money as damages, whether the contract is executory, or has 
 been executed^ and if executed, lohether the conveyance was with 
 or without covenants for title y and if with covenants for title, 
 whether those covenants have or have not been broken} 
 
 PROPOSITION I. 
 
 A ptirchaser of lands may, so long as the contract remains 
 unexecuted by a conveyance, as a general rule, recover hack or 
 detain the purchase money, if the title of the vendor be not such as 
 the purchaser is; under the contract, entitled to require. 
 
 § 238. RIGHT TO RECOVER BACK THE PURCHASE MONEY. 
 
 As to the right to recover back the purcliase money, the rule is 
 thus stated by an eminent authority : " When a person sells an 
 interest and it appears that the interest which he pretends to sell 
 was not the true one, as, for example, if it was for a less number of 
 years than he bad contracted to sell, the purchaser may consider the 
 contract at an end and bring an action for money had and received 
 to recover any sum of money which he may have paid in part per- 
 formance of the agreement for sale." The rule thus stated has 
 been frequently recognized in America.^ The purchaser may, of 
 course, rescind the contract and recover back or detain the purchase 
 
 ' Post, ch. 39. 
 
 ^ 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. 
 349. Turner v. Nightingale, 3 Esp. 639; Hearn v. Tomlin, Pealie Cas. 192^ 
 Thompson v. Miles, 1 Esp. 184; Hibbert v. Shee, 1 Camp. Ca. 113; Duftell v. 
 Wilson, 1 Camp. Ca. 401; Greville v. Da Costa, Peake Add, Cas. 113. Gutt- 
 schlick V. Bank, 5 Cranch (U. S. C. C), 435. Sanders v. Lansing, 70 Cal. 439; 
 11 Pao. Rep. 703; Burks v. Davies, 85 Cal. 110; 24 Pac. Rep. 613, where the pur- 
 chaser had only an "option" to take the property at a certain price. Swihart 
 V. Cline, 19 Ind. 264. Wickliff v. Clay, 1 Dana (Ky.), 585. Fields v. Baum, 35 
 Mo. App. 511. Pino v. Beekwith, 1 New Mex. 19. Force v. Dutcher, 18 N. J. 
 Eq. 401. Judson v. Wass, 11 Johns. (N. Y.) 535; 6 Am. Dec. 393; Putnam v. 
 Westcott, 19 Johns. (N. Y.) 73; Stevens v. Van Ness, 19 N. Y. Supp. 950; Wet- 
 more V. Bruce, 118 N. Y. 319; 33 N. E. Rep. 303. Pipkin v. James, 1 Humph. 
 (Tenn.) 325; 34 Am. Dec. 653; Buchanan v. Alwell, 8 Humph. (Tenn.) 516; Topp 
 V. White, 13 Heisk. (Tenn.) 165. Mayes v. Blanton, 67 Tex. 246; House v. Ken- 
 dall, 55 Tex. 40. As to the right of a subscriber to the stock of a land company 
 
558 MAEKETABLE TITLE TO REAL ESTATE. 
 
 money at law, in any case in which the vendor fraudulently mis- 
 represented or concealed the state of his title.' If while the contract 
 is executory the purchaser is forced to buy in an outstanding adverse 
 claim to the property in order to protect his title, he may recover back 
 from the vendor or his estate the amount expended for that purpose.^ 
 
 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.^ Tliis decision 
 has been criticised by Sir Edward Sugden, who considers that such 
 s. rule, if established, would lead to much inconvenience.^ The 
 better opinion seems to be that the purchaser cannot follow the 
 purchase money and obtain a lien upon it to the exclusion of cred- 
 itors 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.^ 
 
 § 239. WHAT ACTION THE PURCHASER SHOULD BRING. In 
 "those States in which the common-law system of procedure is retained, 
 if the purchaser elects to disaffirm or rescind the contract by pro- 
 •ceeding 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.^ 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 pur- 
 chase money, and cannot recover for expenses incurred in examining 
 the title, nor for special damages caused by the vendor's inability to 
 perform the contract, all of which must be sought in an action on 
 
 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 
 
 1 Post, chs. 39 and 35. Inness v. Willis, 16 Jones & 8. (K. T.) 188. 
 
 ■' Ante, oh. 19. Ferguson v. Teel, 82 Va. 690. 
 
 ' Small v. Atwood, Yo. 407. In this case, however, the alleged fraudulent 
 Tepresentations were as to the quality of the estate. 
 
 " 1 Sugd. Vend. (8th Am. ed.) 393 (2.'56). 
 
 ' .Jenness v. Spraker, (Ind. App.) 37 N. E. Rep. 117; Toney v. Toney, 73 Ind. 
 34; Brown v. Harrison, 93 Ind. 142. 
 
 « 1 Sugd. Vend. (8th Am. ed.) 357 (236). 
 
EIGHT TO EECOVEE BACK PURCHASE MONEY ON EAILUEE OF TITLE. 559 
 
 the case for breach of contract or for deceit, as the case may be.' 
 If, however, he took from the vendor a bond conditioned to make 
 title, his remedy is by action of covenant on the bond.^ 
 
 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.^ 
 
 § 24:0. DETENTION OF THE PURCHASE MONEY. The purchaser 
 may, also, while the contract is executory, resist the payment of the 
 purchase money, if the title has failed.'' This right depends upon 
 the same principles upon which he is allowed to recover back tlie 
 purchase money in a like case, and is subject to the same exceptions. 
 Accordingly it seems that wherever the purchaser might recover 
 back the purchase money for defect of title, he may detain the same 
 
 •Id. 
 
 ' Post, p. 563. Hounds v. Baxter, 4 Me. 454. Green v. Green, 9 Cow. (N. Y.) 
 46. Charles v. Dana, 14 Me. 383. 
 
 5 Wright V. Dickinson, 67 Mirh, 580. This was an action to recover back pur- 
 chase 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 sur- 
 rendered up and canceled, and nothing which was required to be perpetuated by 
 a decree. All there was to be ascertained could be ascertained 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 be deducted, and those could be ascertained and allowed 
 for in a common-law proceeding. The value of the timber cut and removed, 
 and all other benefits which the purchaser derived from the contracts, could be 
 adjusted in the action. 
 
 * Smith V. Pettus, 1 Stew. & Port. (Ala.) 107; "Whitehurst v. Boyd, 8 Ala. 375; 
 Pearson v. Seay, 35 Ala. 612. Sorrells v. McHenry, 38 Ark. 127. Clark v. 
 Croft, 51 Ga. 368; Hall v. McArthur, 82 Ga. 572; 9 S. E. Rep. 534. Gregory v. 
 Scott, 4 Scam. (111.) 392. Cunningham v. Gwinn, 4 Bl. (Ind.) 341. Dufief v. 
 Boykln, 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. 
 Rector, 3 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.), 327; 32 Am. Dec. 754; Colwell v. Hamil- 
 ton, 10 Watts (Pa.), 413; Gans v. Renshaw, 2 Pa. St. 34; 44 Am. Dec. 153 
 
560 MARKETABLE TITLE TO EEAL ESTATE. 
 
 in an action against him by the vendor/ and this to prevent circuity 
 of action, for there would be no reason in requiring tlie defendant 
 to pay over that which he could immediately recover back from the 
 plaintiff. The purchaser cannot be compelled to pay the purchase 
 money if, by reason of the fraudulent representation of the vendor 
 with respect to the title, he was induced to agree to accept a quit- 
 claim conveyance of the land.^ The fact that a note for the pur- 
 chase money of land was executed 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.'' Neither is that right 
 affected by the purposes for which he bought the premises, though 
 such purposes may have been dishonest or improper.* Contracts for 
 the sale of real estate frequently provide that the deposit or cash 
 payment made by the purchaser shall be forfeited unless he makes 
 prompt payment of the deferred installments of the purchase money. 
 But under such a provision a forfeiture cannot be declared where the 
 
 Puokett V. McDonald, 58 Tenn. 395. West v. Shaw, 32 W. Va. 195; 9 S. E. 
 Rep. 81. In Rhodes v. Wilson, 13 Colo. 65; 20 Pac. Rep. 746, it was held that 
 in an action on a note for the purchase money of land, an answer setting up 
 failure of title and inabilitj' of the vendor to convey, presented a legal, and not 
 an equitable defense. It would seem that this observation 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. It 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 defense of failure of title in an action for the purchase money, are 
 few compared with those in which the purchaser seeks to recover back the pur- 
 chase 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 care- 
 fully examining the title few contracts proceeded further than the payment of 
 the earnest money, if the title was bad, and that if the purchaser took possession 
 and paid the purchase money, without examining the title, he would there be 
 deemed to have waived his objections to the title. 
 ' Hilliard on Vend. 71. 
 
 * Hayes v. Bonner, 14 Tex. 639. 
 
 * Crawford v. Keebler, 5 Lea (Tenn.), 547. 
 
 * HoUenburgh v. Morrison, 9 Watts (Pa.), 408. 
 
EIGHT TO EECOVEE BACK PTJECHASE MONEY ON FAILDEE OF TITLE. 561 
 
 purchaser aeclines to pay the purchase money until the vendor 
 removes an incumbrance from the premises, or cures a defect in the 
 titie.i 
 
 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 entitled 
 to detain the unpaid .purchase money .^ 
 
 § 241. EXCEPTIONS AND aUALIFICATIONS. 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,^ where the vendor has a right to 
 perfect the title,* 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 \ras before the contract was 
 made.' It has been held that an agreement to convey to the pur- 
 chaser in fee simple does not entitle liim to rescind the contract and 
 recover back the purchase money on the ground that there are 
 incumbrances on the property.^ This is a narrow interpretation of 
 such an agreement and is not supported, it is believed, by the weight 
 of authority,'' except in those cases in which the purchase money 
 can be applied to the discharge of the incumbrance. 
 
 In the English practice it has been held that a purchaser cannot, 
 at the trial of an action to recover his deposit, insist upon an objec- 
 tion 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.^ This decision has 
 
 ' Wallace V. McLaughlin, 57 111. 53. 
 
 » Daniel v. Baxter, 1 Lea (Tenn.), 630. 
 
 2 Ante, ch. 8. 
 
 ' Post, § 308. 
 
 ' Post, § 356, et seg. 
 
 « Fuller v. Huljbard, 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 con- 
 tract if the premises were incumbered. 
 
 'Todd V. Hoggart, Moo. & M. 128. Chitty Govt. (10th Am. ed.) 337. 
 
 71 
 
562 jrAKKETABLE TITLE TO KEAL ESTATE. 
 
 been cited approvingly in a recent American case, in which it was 
 held that it was incumbent on a purchaser, assuming to examine the 
 title, to make a complete examination, and that in an action to 
 recover the deposit he would be limited to the defects pointed out 
 when he rejected the title.' 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 back payments of tlie 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 pay- 
 ments to one from whom they cannot be recovered back.^ 
 
 The right to resist the payment of the purchase money for defect 
 of title is personal to the vendee. Therefore, if the vendee execute 
 a note for the purchase money with sureties, the latter cannot, in an 
 action on the note, set up the plaintiff's want of title as a defense.' 
 
 'Easton v, Montgomery, 90 Cal. 313; 37 Pac. Rep. 880. There aredictain this 
 decision from which it might be inferred that a vendor negligently omitting an 
 examination of the title, would thereby lose his right to rescind the contract and 
 recover back the purchase money, if the title failed from causes that an examina- 
 tion would have disclosed. In Soper v. Arnold, L. R., 14 App. Cas. 439, it was 
 held that a purchaser having accejjted the title shown by the abstract and for- 
 feited 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 appear- 
 ing on the face of the same abstract, recover his deposit on the ground of mutual 
 mistake and failure of consideration. 
 
 ' Youmans v. Edgerton, 91 N. Y. 403, disapproving Smith v. McCluskey, 45 
 Barb. (N. Y.) 610. The court observed that the assignment did not, nor did it 
 purport to, transfer any right in the land, jar 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. 
 
 = 3 Parsons B. & N. 536, 537. Lewis v. McMillen, 41 Barb. (N. Y.) 431, citing 
 Gillespie v. Torrance, 25 N. Y. 306; 83 Am. Dec. 355. Webb v. Spicer, 13 Q. B. 
 886; Salmon v. Webb, 16 Eng. L. & Eq. 37. 
 
EIGHT TO EECOVEE BACK PTJEOHASE MONET ON FAILTTEE OF TITLE. 563 
 
 This is a mere application of the principle that a surety cannot, as a 
 general rule, avail himself of his principal's right of set-off, recoup- 
 ment or counterclaim.* 
 
 § 242. WHAT OBJECTIONS TO THE TITLE MAY BE MADE IN 
 ACTIONS FOB. THE PURCHASE MONEY. As a general rule the 
 purchaser may show in the defense of an action for the purchase 
 money, while the contract is executory, any matter of law or fact 
 which invalidates or renders unmarketable the title of his vendor. 
 These may be classified as defects which appear on the face of the 
 instruments under which the vendor claims title, such as the absence 
 of words of conveyance ; defects which appear from the public 
 records, such as prior conveyances by the vendor, mortgages, judg- 
 ments, etc., and defects in pais, or those to be established by the 
 testimony of witnesses, such as want of heirship, personal disability 
 of a grantor in the chain of title, etc. A further classification of 
 the principal sources or grounds of objection to the title may be seen 
 in a preceding part of this work.^ 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 cog- 
 nizable 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.^ 
 
 § 243. EXPENSES OF EXAMINING THE TITLE. In those States 
 in which the distinction between trespass on the case and tresjjass on 
 the case in assumpsit is still observed, the purchaser cannot, on the 
 count for money had and received to his use, recover expenses 
 incurred by him in examining the title, or in fact any items of 
 expense or damage growing out of the failure of the title, because 
 the right to recover any such items dei^ends upon contract, and the 
 count for money had and received disaffirms the contract.* In a 
 
 ' There is, however, a confliet of authority on this point. Brandt on Surety- 
 ship, § 203; 24 Am. & Eng. Bncyc, of Law, 798. 
 
 " Ante, p. 170, et seq. 
 
 = Poat, §286. 
 
 * 1 Sugd. Vend. (8th Am. ed.) 547 (362); Chitty Cont. (10th Am, ed.) 339. Can- 
 field V. Gilbert, 4 Esp. 221; Gosbell v. Archer, 4 jSTev. & Man. 485; Walker v. 
 Constable, 1 Bos. & Pul. 306. 
 
564 MARKETABLE TITLE TO EEAL ESTATE, 
 
 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.' 
 
 § 244. BURDEN OP 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.' An 
 agreement by the vendor to execute to the purchaser " a good and 
 sufSeient warranty deed " does not impose on the vendor the burden 
 of showing a clear title in such an action.^ But if the purchaser 
 produces an original abstract of title showing a defect of title in the 
 vendor 2„ prima facie case is established against the latter, putting 
 him to proof of a better title.* 
 
 Miscellaneous rules. Of course, if the vendor disable himself 
 from performing his contract by conveying the land to a third 
 party, the purchaser may bring an action to recover back the pur- 
 chase money paid instead of seeking damages for the violation of 
 the contract.^ But if the purchaser rejects a good and marketable 
 title when tendered, and the vendor has waived none of his rights 
 
 'Wetmore v. Bruce, 118 N. T. 330; 23 N. E. Rep. 303; Elfenheim v. Von 
 Hafen, 23 N. Y. Supp. 848. 
 
 ' Post, § 381. Dwight v. Cutler, 3 Mich. 566; 64 Am. Bee. 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, Coglby, J., saying: " The contract obligated 
 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 satis- 
 fied himself respecting the title when he made his bargain." 
 
 < Hartley v. James, 50 N. Y. 41. Kane v. Rippy, 23 Oreg. 296; 23 Pac. Rep. 
 180. In an action of covenant to recover the purchase money a plea of cove- 
 nants performed, absque hoe, 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. 
 
 'Burley v. Shinn, 1 Neb. 433. 
 
EIGHT TO EECOVEE BACK PUECHASB MONEY ON FAILUEE OF TITLE. 565 
 
 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.' 
 
 If the purchaser demands such a deed as the contract entitles 
 him to receive, and the vendor refuses to give it, but insists on the 
 acceptance of a different and inferior title, the contract may be 
 regarded as broken, and the purchaser may sue at once and recover 
 back whatever purchase money he has paid.- 
 
 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.' This rule of course does not apply where the question is 
 only as to the validity or legality of the sale.* 
 
 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. Wliat is sufficient to render a title unmar- 
 ketable will be elsewhere considered.' 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.* 
 
 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 
 
 ' Beyer v. Braender, 57 N. Y. Super. Ct. 439. 
 
 = Shrove v. Webb, 1 Term, 733. Reddington v. Henry, 48 N. H. 379; 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 pronounce the deed to be complete and perfect." 
 Counsel having pronounced the deed tendered to be insuificient (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. 
 
 3 Rorer on Jud. Sales, § 458. Ellis v. Anderton, 88 N. C. 473, distinguishing 
 Shields v. Allen, 77 N. C. 375. 
 
 " See Shipp v. Wheless, 33 Miss. 646. 
 
 5 Post, ch. 31. 
 
 « 1 Sugd. Vend. (8th Am. ed.) 368 (241). 
 
566 MAEKETABLE TITLE TO REAL ESTATE. 
 
 defendant holds the money without consideration and is bound to 
 return it.^ 
 
 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 con- 
 tract or for breach of covenant, the damages are, as a general rule, 
 measured by the consideration money and interest. And in equity 
 upon a rescission of the contract, the court decrees a return of the 
 purchase money to the purchaser. 
 
 In the action for money had and received to his use, dis- 
 affirming the contract on failure of the title, the purchaser cannot 
 recover more than the money paid, though the estate has risen in 
 value.^ The rule is the same, however, in an action for damages 
 unless the vendor was guilty of fraud.^ 
 
 § 245. RIGHT TO RESCIND "WHEN THE ESTATE IS INCXTM:- 
 BEREB. In many cases the purchaser may rescind the contract and 
 recover back or detain the purchase money, if tlie estate is incum- 
 bered.* Where an incumbrance is discovered previously to the 
 execution of the conveyance and payment of the purchase money, 
 the vendor must discharge it whether he has or has not agreed to 
 covenant against incumbrances, before he can compel payment of 
 the purchase money .^ 
 
 ' Gosbell V. Archer, 4 Nev. & Jlann. 485; Adams v. Fairbain, 3 Stark. 277. 
 Gillett V. Maynard, 5 Johns. (N. Y.) 85; 4 Am. Dec. 339. Here, however, the 
 vendor merely refused to convey. Buck v. Waddle, 1 Ohio, 357. Thompson v. 
 Gould, 20 Pick. (Mass.) 134, semMe. Flinn v. Barber, 64 Ala. 193. Collins v. 
 Thayer, 74 111. 138. 
 
 "^ 1 Sugd. Vend. 358; Dutch v. Warren, 3 Burr. 1010; Dale v. SoUett, 4 Burr. 
 2133. 
 
 •Ante, pp. 211, 223. 
 
 'Seech. 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, hp cannot look to the vendor to reimburse 
 him. Cliamberlain v. Amter, (Colo.) 27 Pac. Rep. 87. 
 
 ' 2 Sugd. Vend. (8th Am. ed.) 193. 
 
EIGHT TO EECOVEE BACK PURCUIASE MONKV ON FAILUEE OF TITLE. 567 
 
 The qnestion, what is an incumbrance, aud under what circum- 
 stances the purchaser may, because of its existence, refuse to proceed 
 with tlie contract, is considered elsewhere in this work.* Little diffi- 
 culty 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, sucli as taxes and assess- 
 ments. We have seen under what circumstances taxes and assess- 
 ments upon the warranted premises will be deemed a breach of the 
 covenant against incumbrances.^ "Where the contract 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.^ Where the con- 
 tract is made after the completion of a public improvement, but 
 before the imposition of an assessment therefor, the purchaser must 
 protect himself by provision in the contract.' 
 
 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.^ If he pays the purchase 
 money in ignorance of the incumbrance, he may recover it back, 
 and in an action for that purpose it is not necessary for him to go 
 behind the record and show that the incumbrance has not been paid; 
 he has a right to recover if the incumbrance appears unsatisfied of 
 
 ' Post, § 304, et seg., ch. 31. See, also, ante, § 123. 
 
 ' Ante, p. 288. 
 
 'Furber v, Purdy, 69 Mo. 601. Slierman v. Savery, 2 Fed. Rep. 50.5. Gary v. 
 Gundleflnger, (Ind.) 40 N. E. Rep. 1112. 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. 
 
 * People V. Gilon, 9 N. Y. Supp. 212. 
 
 'Post, § 304. Paugborn v. Miles. 10 Abb. N. Gas. (N. Y.) 42; Rinaldo v. 
 Houseman, 1 Abb. (N. Gas.) (N. Y.) 313. 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 per- 
 form his contract to convey a good title. This was reversed on appeal. The 
 grounds of the ruling below do not appear. Similar evidence was excluded in 
 Murphy v. Richardson, 28 Pa. St. 288, on tlie ground that the purchaser had 
 bought subject to the incumbrance, but this decision was reversed on appeal, tha 
 court holding that whether in fact the purchase had been so made was a question 
 to be determined by the jury. 
 
568 MARKETABLE TITLE TO REAL ESTATE. 
 
 record.' If the vendor produces an abstract showing that the incum- 
 brance has been satisfied, he must further show that the person 
 making such entry had authority for that purpose.^ In a case in 
 which the purchaser paid off an incumbrance wliich had been 
 fraudulently concealed from him, and the amount so paid, together 
 with what he had already paid to the vendor, amounted to the pur- 
 chase price of the land, the court stayed the collection of the pur- 
 chase-money notes and directed that a deed be executed to the pur- 
 chaser.5 If ^j-^g contract expressly require that tlie premises shall be 
 conveyed to the purchaser free and clear of incumbrances, he cannot 
 be required to accept a conversance 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 con- 
 tract the vendor cannot impose upon the purchaser the burden of 
 applying the purchase money to the incumbrances and procuring 
 their satisfaction.^ 
 
 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.'' 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. ° It has l)een held that if the vendee is protected 
 
 ' Kimball v. B(_-ll. 47 Kans. 757; 28 Pac. Rep. 1015. 
 
 » O'Neill V. Doutbett, 40 Kans. 690; 20 Pac. Rep. 493. 
 
 "Rodman v. Williams, 4 Bl. (Ind.) 72. 
 
 ' 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. 
 
 = Hcrryford 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 so entitled. It would be an extreme hardship 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 commencement of the action." Citing 
 Saund. PI. & Ev. 132; Rex v. Holland, 5 T. R. 621; 3 Saund. 63a. 
 
EIGHT TO KKCOVER BACK PUECHASE MONEY ON FAILUEE OF TITLE. 569 
 
 as ail 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.' 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.'^ 
 
 § 246. BUYING WITH KNOWLEDGE OF DEFECT OR INCUM- 
 BRANCE. If the purchaser enter into the contract knowing that 
 the title is imperfect or that there are incumbrances on the land, he 
 will, as a general rule, be deemed to have waived his objections to 
 the title, though not necessarily, his right to require a conveyance 
 with general covenants for title.^ 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."* Where an objection to the title was raised by the 
 
 ' Wilkins v. Irvine, 33 Ohio St. 138. 
 
 * Billiard Vend. (2d ed.) 277. Wilhelm v. Fimple, 31 Iowa, 131; 7 Am. Rep. 
 117. 
 
 ' Ante, p. 194, "Waiver of Objections." Allen v. Hopson, 1 Freem. Ch. 
 (Miss.) 276; Wiggins v. McGimpsey, 13 Sm. & M. (Miss.) 533. Where held, also, 
 that the purchaser would be charged with notice of defects from the record. 
 Contra, Daly v. Bernstein, (New Mex.) 28 Pac. Rep. 764. 
 
 ■■ 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 therefrom, 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. 
 
 72 
 
570 MARKETABLE TITLE TO KEAL ESTATE. 
 
 purcliaser and the vendoi- agreed to refund tlie purchase money " if 
 it should be adjudged that he had no legal right to sell, and by 
 reason tliereof the purchaser should be compelled to give up the 
 premises," it was held that the purchaser could not detain the pur- 
 chase money unless he had been actually or constructively evicted.' 
 
 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 l;iy the time the purchase money is paid.^ It 
 may be doubted whether the purchaser would be permitted to 
 detain the purchase money even if he bouglit, 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.^ 
 
 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.^ It is only necessary to say here that 
 the purchaser is bound to complete his contract if botli 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 adverse 
 claims.^ In such a case he has neither the right to rescind the con- 
 
 ' Failing v, Osborne, 3 Oreg. 498. 
 
 ' Smith \ . Haynes, 9 Me. 128. 
 
 2 Judson V. Wass, 11 ,Iolms. (N. Y.) 535; 6 Am. Dec. 393. Daly v. Bernstein 
 (New Me.\.) 38 Pac. Rep. 764. 
 
 ^ Taul V. Bradford, 20 Te.x. 264; Hurt v. McReynolds, 20 Tex. 595, 
 
 * Ante, p. 20. 
 
 ' Ellis V. Andcrton, 88 N. C. 473. It is true the sale was by an administrator 
 in this case under an order of court, so that the rule .catrat emptor applied; but 
 
BIGHT TO EECOVEB BACK PUECHASK MONEY ON FAILUEE OF TITLE. 571 
 
 tract 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 instances in which 
 the purchaser has bought such a title, taken a quit-claim deed, and 
 afterwards sold and conveyed at a profit to a person seeking a like 
 opportunity of gain and taking the risk of losing the premises. 
 Consequently nothing is better settled than that in such a case the 
 purchaser cannot refuse to complete the contract on the ground that 
 the title is bad.-* But the burden will be upon the vendor to show that 
 the purchaser took the risk of the title.^ The purchaser, however, 
 will not be deprived of his right to require a conveyance with cove- 
 nants 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 induces him to enter into the contract.^ The burden will 
 be upon the vendor to show that the purchaser, seeking to detain 
 the purchase money, took the risk of the title.* 
 
 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, 
 
 no distinction is perceived between a case in which the purchaser expressly 
 agrees to take such title as he can get, and one in which he buys, knowing that 
 if the title is bad he will be compelled to take it. See, further, Twohig v. 
 Brown, 85 Tex. 55; 19 S. W. Rep. 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 purchase money when the 
 contract is executory, if he took the risk of the title, than in a case in which he 
 accepts a quit- claim conveyance of the premises, knowing that the title is bad 
 or doubtful. The only practical difference between the two cases would seem 
 to be that the acceptance of the quit-claim with notice, conclusively shows that 
 he took the risk of the title, while in the case of an executory contract the 
 burden devolves on the vendor to show an acceptance of the risk. 
 
 > Ante, p. 36. Jones v. Taylor, 7 Tex. 240; 56 Am. Dec. 48; Neel v. 
 Prickett, 13 Tex. 137. Winne v. Reynolds, 6 Paige (N. Y.), 407, diet. Kerney 
 V. Gardner, 27 111. 162. Maxfleld v. Bierbauer, 8 Minn. 413 (367). 
 
 « Littlefield v. Tinsley, 26 Tex. 353. 
 
 ' Ante, p. 184. 
 
 « Twohig V. Brown, 85 Tex. 55; 19 S. W. Rep. 768. 
 
572 MAEKETABLE TITLE TO EEAL ESTATE. 
 
 because the money is voluntarily paid, with full knowledge of the 
 facts, and there can be no imputation of fraud or mistake.' 
 
 § 248. EFFECT OF ACCEPTIWa 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 the right to 
 recover back the purchase money, eo nomine^ nor will lie 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.^ 
 
 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 pui-chaser was given the same effect, as respects 
 the detention of the purchase money, as the acceptance of a convey- 
 ance with covenants of warranty.^ The authority of this decision 
 
 ' Vest V. Weir, 4 Bl. (Ind.) 135. Here tlie 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 decis- 
 ion in this case was approved in Mayors v. Brush, 7 Ind. 235, and there distin- 
 guished from Hawkins v. Johnson, 4 Bl. (Ind.) 21. 
 
 ' Hurst V. Means, 3 Sneed (Tenn.), 546. Bellows v. Cheek, 20 Ark. 424. 
 
 'Coleman v. Rowe, 5 How. (Miss.) 469; 37 Am. Dec. 164, the court saying: 
 "If, then, there has been no fraud, nor any eviction, and the agreement Is exe- 
 cuted, the vendee can have no claim to relief on the mere ground of a failure of 
 title. 1 Johns. Ch. (N. Y.) 313. 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 contract 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 con- 
 sider the covenant to convey as an executory contract, yet it is difficult to con- 
 ceive 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 
 
EIGHT TO EEOOVEE BACK PUKCHASE MONEY ON EAILUKB OF TITLE. 573 
 
 may be doubted, and there are several cases in which the opposite 
 view has been taken.' 
 
 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 tne pur- 
 chaser be ready, able and willing to complete the contract, he may 
 rescind and recover back the purchase money already paid.^ 
 
 § 249. IN-auiRY INTO CONSIDERATION OF SEALED INSTRU- 
 MENT. At common law the consideration of a sealed instrument 
 could not be inquired into ; consequently, in an action on a bond 
 given for the purchase money of land, the defendant could not 
 show that the consideration had failed for want of title in the ven- 
 dor.' This rule, however, has been very generally changed through- 
 out the United States by statutes abolishing all distinctions between 
 
 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. 137. Strong v. 
 Waddell, 56 Ala. 471, 473, dictum. Roach v. Rutherford, 4 Des. (S. C.) 126; 6 
 Am. Dec. 606. 
 
 'Hurst V. Means, 3 Sneed (Tenn.), 546. Bellows v. Cheek, 20 Ark. 424. 
 Mobley v. Keys, 13 Sm. & M. (Miss.) 677. Brittain v. McLain, 6 Ired. Eq. (N. 
 C.) 165. Benson v. Coleman, 8 Rich. L. (S. C.) 45. Neel v. Prickett, 13 Tex. 
 137. 
 
 ' Smith V. Lewis, 36 Conn. 110. Clark v. "Weis, 87 111. 438; 39 Am. Rep. 60.; 
 Hough V. Rawson, 17 111. 588; Smith v. Lamb, 36 111. 396; 79 Am. Dec. 381. 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 purchaser against any claim of the infant. While the contract 
 was yet executory, the purchaser refused to pay the purchase money on the 
 ground of the defective title, and judgment was rendered in his favor by the 
 court 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 prej- 
 udice 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." 
 
 * Coleman v. Sanderlin, 5 Humph. (Teun.) 561. 
 
574 MAEKETABLE TITLE TO EEAL ESTATE. 
 
 sealed and unsealed instruments/ or allowing failure of consider- 
 ation to be set up as a defense to an action on an instrument under 
 seal.^ 
 
 § 250. RIGHT TO ENJOIN THE COLLECTION OF THE PURCHASE 
 MONEY WHILE THE CONTRACT IS EXECUTORY. If the purchaser 
 has had no opportunity to set up the defense of want of title in the 
 vendor in an action for the purchase money, he may have relief 
 in equity by way of injunction. But he will not be entitled to that 
 remedy unless he had no opportunity to make his defense at law.' 
 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 appre- 
 hended, would be no defense to such an action. It would seem, 
 however, that if tlie purchaser 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 comjjel the vendor to remove incum- 
 brances or objections to the title, an injunction would lie to stay 
 proceedings in the action of ejectment. 
 
 1 Mulling v. Jones, 1 Head (Tenn.), 519. 
 
 ' Rawlc Govts. (5th ed.) § 325. 
 
 '(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 Injunctions (3d 
 ed.), § — . Shipp V. Wheless, 33 Miss. 646; McLaurin v. Parker, 34 Miss. 509. 
 Kebler v. Cureton, Rich. Eq. Gas. (S. C.) 143. Bartlett v. Loudon, 7 J. J. Marsh. 
 (Ky.)641; Dudley V. Bryan, 6 J. J. Marsh. (Ky.) 281. 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 correspondingly abated. A purchaser paying off 
 incumbrances after the j udgment against himself for the purchase money, may 
 have an injunction against the judgment ii 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. Ghapin, 2 R. I. 429. Nor 
 if the plaintiff merely seeks damages in equity. Robertson v. Hogsheads, 3 
 Leigh (Va.), 667. High on Injunctions (3d ed.), § 411. If the'purchaser's obliga- 
 tion for the purchase money provide that it shall not be payable until certain dis- 
 putes respecting the title are ended, the pendency of those disputes constitutes 
 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 contingency, it being necessary to allege 
 
EIGHT TO EECOVEE BACK PURCHASE MONEY ON FAILUEE OF TITLE. 575 
 
 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.' 
 The injunction will not be granted if the dilBculty in obtaining title 
 was brought about by the neglect of the purchaser himself ; as 
 when he failed to pay the purchase money in the lifetime of the 
 vendor so that ^proceedings in chancery to obtain the title from 
 infant heirs at law became necessary.^ Nor will the injunction be 
 granted on the ground that the title has failed, if it appear that the 
 rights of all adverse claimants have become barred b}' the Statute 
 of Limitations.' 
 
 If the vendor fraudulently concealed or misrepresented the state 
 of his title an injunction will lie to restrain the collection of the 
 purchase money f and that too, it is apprehended, without regard 
 to the fact that the fraud may be or might liave been set up as a 
 defense at lavr.^ The remedy in equity in such cases is concurrent 
 with that at law. 
 
 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 purchaser until the vendor removes any lieu or incumbrance 
 upon the premises for which he is liable.^ 
 
 The remedy by injunction against proceedings to collect the pur- 
 chase money is not necessarily in disafRrmance 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- 
 cliase money to the discharge of incumbrances, or to enforce some 
 
 and prove the happening of the contingency before a judgment at law can be 
 obtained, an injunction against tlie judgment, if suffered by the payor, cannot 
 be sustained on the ground that the contingency has not occurred. Allen v. Phil- 
 lips, 3 Litt. (Ky.) 1, 
 
 ' Brittain v. McLain, 6 Ired. Eq. (N. C.) 165. 
 
 s Prout V. Gibson, 1 Cranch (C. C), 389. 
 
 ^Amick V. Bowyer, 3 "W. Va. 7; Piedmont Coal Co. v. Green, 3 "W". Va. 54. 
 Peers v. Barnett, 13 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, 35 Ala. 554. In both these 
 cases the vendor, an administrator c. t. a., had falsely represented that he had 
 authority under the will to sell. 
 
 * Post, chs. 39, 34, § 339. 
 
 « Jackson v. Knight, 4 Watts & Serg. (Pa.) 413. 
 
576 MARKETABLE TITLE TO REAL ESTATE. 
 
 equity in behalf of the purchaser whicli does not require a rescission 
 of the contract.' In such cases it is customary to grant a temporary 
 injunction, and of course there need be no surrender of the prem- 
 ises by the purchaser. But if he seeks a perpetual injunction, which 
 is in effect a rescission of the contract, he must restore the premises 
 to the vendor. He cannot have both the injunction and the benefit 
 of his purchase.^ But vphile a perpetual injunction substantially 
 rescinds the contract, the complainant nmst pray a rescission in 
 terms ; otherwise it will be presumed that he intends to keep both 
 the premises and the purchase money, and the bill will be dismissed.* 
 If the purchaser buys with knowledge that the title is defective, he 
 cannot have a perpetual injunction unless it appear tliat the title 
 cannot be perfected.^ This seems a reasonable rule, for it may be 
 that the purcliase was made with the understanding that the title 
 should be perfected before payment of the purchase money might 
 be compelled. But if the contract was one of pure hazard, the 
 purchaser to get merely such title as the vendor had, there can be 
 no doubt that the injunction should be denied.' 
 
 If by the terms of the contract payment of the purchase money 
 is a condition precedent to tlie purchaser's right to demand a deed, 
 
 ' Thus, in Price v. Browning, 4 Grat. (Va.) 73, 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 perpet- 
 uate the injunction if it appeared that a good title could never be made. 
 
 i* Edwards v. Strode, 3 J. J. Marsh. (Ky.) 506; Markham v. Todd, 3 J. J. 
 Marsh. (Ky.) 364, where it was held that the court might at the time of perpetu- 
 ating the injunction, decree that the premises be restored to the vendor. Bran- 
 num V. Ellison, 5 Jones Eq. (N. C.) 435. 
 
 ^ Williamson v. Ranej', Freem. Ch. (Miss.) 112. 
 
 ■•As to right to injunction under similar circumstances where the contract 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, 8 Litt. (Ky.) 81, the complain- 
 ants 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 in writing 
 that the purchase money should not be detained if adverse claims were asserted. 
 
EIGHT TO EECOVER BACK PUECHASE MONE^ ON FAILURE OF TITLE. 577 
 
 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 ofEered 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.' 
 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.^ 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 contract 
 requires.^ If an injunction against the collection of the purchase 
 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.^ 
 
 § 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.^ So, also, one who purcliases before 
 maturity with notice of the vendee's equities.^ But a j)urchaser for 
 
 ' Mitchell V. Sherman, Freem. Ch. (Miss.) 120, where the vendor gave bond to 
 convey "a good aad 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.), 343. 
 
 'Moredock v. "Williams, 1 Overt. (Tenu.) 325 (257); Moore v. Cooke, 4 Hayw. 
 (Tenn.) 85 (281). 
 
 ■•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 below; 
 Lampton v. Usher, 7 B. Mon. (Ky.) 57. In Reeves v. Bickey, 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. 
 
 «Knapp v. Lee, 3 Pick. (Mass.) 452. Lamb v. James, 87 Tex. 485: 29 S. W. 
 Rep. 647. 
 
 T3 
 
578 MARKETABLE TITLE TO EEAL ESTATE. 
 
 valne Avithout notice will not be affected by failure of the vendor's 
 title.' If the note was not negotiable, the purcliaser, whether 
 before or after maturity, takes subject to equities between the 
 vendor and the vendee.^ 
 
 § 252. REFUSAL or 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. Pie 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.' This rule was recognized in a case in New 
 York in which the failure of the vendor to convey was occasioned 
 by his want of title.* It was not necessary, 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.^ There would seem to be no 
 reason in requiring the purchaser to pay over money to the vendor 
 which he might immediately recover back from him as damages for 
 breach of the contract. 
 
 § 253. RIGHT TO RESCIND AS DEPENDENT ON TENDER OF 
 PURCHASE MONEY AND DEMAND OF TITLE. The duty of 
 the purchaser to tender the purchase money and demand a convey- 
 ance as a condition precedent to the right to rescind the contract on 
 failure of the title, and to detain or recover back the purchase 
 
 • Gee V. Saunders, 66 Tex. 333. 
 
 ' Timms v. Shannon, 19 Md, 296; 81 Am. Deo. 633. 
 
 2 Spiller V. Westlake, 2 B. & Ad. 155; 23 E. C. L. 74; Moggridge v. Jones, 14 
 East, 486; 3 Camp. 38. Freeligh v. Piatt, 5 Cow. (N. Y.) 494. Chapman v. 
 Eddy, 13 Vt. 205. 
 
 * Lewis V. McMillen, 41 Barb. (N. Y.) 430. 
 
 ' It was intimated by Pakkk, J., in Spiller v. Westlake, supra, that the defend- 
 ant might have resisted the payment of the note in that case if the circum- 
 stances 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. 
 
EIGHT TO EECOVEK BACK PUECHASB MONEY OX FAILUKE OF TITLE, i) (y 
 
 money, as the case may be, lias been elsewhere considered.' It may 
 be added here, however, that when the vendor's title is defective 
 and the vendee, vipon ascertaining it, refuses to take snch title and 
 demands the return of the purchase money paid, and the vendor, 
 instead of taking measures to cure the defects, simply holds himself 
 ready to convey such title as he has and requests the vendee to 
 accept it, giving him notice that he will be held for any loss, the 
 vendee is not called upon to make any other or further tender or 
 offer of payment in order to rescind tlie contract by detaining the 
 purchase money or recovering back the jjayments made.^ In a case 
 in which there was evidence that the purchaser had j)aid 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 tlie 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.' 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.* 
 
 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 
 
 ' Ante, p. 199. 
 
 « Hartley v. James, 50 N. Y. 41. In McCullough v. Boyd, 120 Pa. St. 552; 
 14 Atl. Rep. 438, it was helti 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, bj' the 
 terms of his contract, he is not entitled to a conveyance until the purchase money 
 lias been fully paid. 
 
 s Linton v. Allen, 154 Mass. 432; 28 N. E. Rep. 780. 
 
 ■•Gillett V. Maynard, 5 Johns. (N. Y.) 85; 4 Am. Dec. 339; Camp v. Morse, 5 
 Denio (N. Y.), 164; Van Benthuysen v. Crasper, 8 Johns. (N. Y.) 259; Frost v. 
 Smith, 7 Bosw. (N. Y.) 108. Chatfield v. Williams, 85 Cal. 518; 24 Pac. Rep. 
 839. 
 
580 MAEKETABLE TITLE TO BEAL ESTATE. 
 
 purchaser such a conveyance and title as the contract requires.' If, 
 however, under the contract, the purchaser is obUged to ■p&j the 
 purchase money before the making of the conveyance he cannot 
 refuse so to do on the ground that the title is bad, \\'ithout surrend- 
 ering or offering to surrender the premises.^ 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. ^ If the contract provide that the 
 purchase money shall not he 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 nioney 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.* 
 
 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 install- 
 ment is paid, the covenants are independent, and the purchaser can- 
 not detain any of the installments on the ground that the title is 
 defective f the reasons being, among others, that the vendor may 
 perfect the title before all of the purchase money is paid f and tliat 
 it may be that he looks to the jDurchase money itself as a fund for the 
 removal of objections to the title.'' If, however, the vendor were 
 
 ' Feemster v. jWay, 13 Sm. & M. (Miss.) 275; 53 Am. Dec. 88; Wiggius v. 
 McGimpsey, Id. 532, citing Robb v. Montgomery, 20 Jotms. (N. Y.) 15; Sage v. 
 Ranney, 2 Wend. (N. Y.) 584. Pequea v. Mosby, 7 Sm. & M. (Miss.) 340. But 
 see McMatli v. Johnson, 41 Miss. 439, and cases cited infra. 
 
 ' Cases cited in last note. George v. Stockton, 1 Ala. 136. 
 
 * Clemens v. Loggius, 1 Ala. 623. 
 
 * 2 Warvelle Vend. 915. 916. 
 
 ' Post, ch. 33. 3 Warvelle Vend. 843. Gibson v. Newman, 1 How. (Miss.) 841; 
 Coleman V. Rowe, 5 How. (Miss.) 460; 37 Am. Dec. 164; Clopton v. Bolton, 23 
 Miss. 78; McMath v. Johnson, 41 Miss. 439, disapproving Pequea 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. Mousen v. Stevenson, 56111. 335. Hudson 
 v. Swift, 20 Johns. (N. Y.) 35. This, however, 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. 
 
 'Greenby v. Cheevers, 9 Johns. (N. Y.) 127. 
 
 •" Green v. Green, 9 Cow. (N. Y.) 46; Ellis v. Hoskins, 14 Johns. (N. Y.) 363. 
 
EIGHT TO EECOVEE BACK PURCHASE MONEY ON FAILUEE OF TITLE. 581 
 
 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 jpayment of piir chase 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 con- 
 veying to the purchaser, that fact constitutes no defense to an action 
 for the purchase money. The purchaser must pay the p)urchase 
 money and look to his remedy on the title bond.' And if in such 
 case instead of being merely in default in the payment of the pur- 
 chase 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, 
 recover back any of the payments made. The vendor by his con- 
 duct forfeits what has been paid.^ 
 
 We have seen that in cases in which the payment of the purchase 
 money is not by the express terms of the contract made a condition 
 precedent to the right of the purchaser to demand a conveyance of 
 an indefeasible title, no such payment or tender of payment need be 
 made as a condition precedent to the right to rescind upon an abso- 
 lute and undisputed failure of the title.' This rule applies as well 
 
 ' Foster v. Jared, 13 111. 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 depend- 
 ent covenants neither party can recover unless he has fully performed or offered 
 to perform on his part has, therefore, no application to this case. The defend- 
 ant 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. Ranney, 2 Wend. (N. Y.) 532. 
 
 * Rounds V. Baxter, 4 Me. 454. Seymour v. Dennett, 14 Mass. 366. 
 
 » Ante, p. 580. 
 
582 MAEKETABLE TITLE TO EEAL ESTATE. 
 
 where tlie purchaser has only an " option " to purchase as where the 
 purchase has been actually made.^ 
 
 § 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 surrender 
 A\-hatever he has received under the contract.' The reason of the 
 rule is that the vendor must be given an opportunity to remove 
 objections to the title and to perform the contract on his part. It 
 has been held, however, that if the purchaser did not take possession 
 and has received nothing under the contract, he may recover back 
 or detain the purchase money without an offer to rescind.' 
 
 § 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 insuffi- 
 cient.* 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 tiiat the burden of proof is on the vendor io show jprlina 
 facie that the title is good.^ But, obviously, the vendor cannot be 
 compelled to show the non-existence of any and every fact which 
 might invalidate his title, for there would be practically no end to such 
 an inquiry. He could hardly be compelled to offer proof of the 
 competency of everj^ grantor in his chain of title. Having shown a 
 
 ' Burke v, Davies, 85 Cal. 110. 
 
 ' 1 Sugd. Vend. (14th ed.) 243; 2 Warvelle Vend. 883. Herbert v. Stanford, 12 
 Ind. 508, 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. PI), 371. Higley v. Whit- 
 taker, 8 Ohio, 201. Mullins v. Bloomer, 11 Iowa, 360. Carney v. Newberry, 34 111. 
 203, case of personal property. 
 
 2 Herbert v. Stanford, 12 Ind. 503, and cases cited supra. 
 
 ■•Walker v. Towns, 23 Ark. 147. Copslaud 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. 
 
 "■ Negley v. Lindsey, 67 Pa. St, 217; 5 Am. Rep. 427, Sharswood, J., saying -. 
 " How can a defendant (purchaser) show defects in the plaintiff's title unless it is 
 produced to him. It is not enough to say that he may resort to the records. He 
 
EIGHT TO EECOVEE BACK PUECHASE MONEY ON FAILUEE OF TITLE. 583 
 
 record title free from objection, on its face, the burden shifts to tlie 
 purchaser, who should then point out the defect of which he 
 complains.* 
 
 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.' 
 
 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. 
 
 ^ Snevily v. Egle, 1 Watts & S. (Pa.) 480. 
 
CHAPTER XXV. 
 
 OF THE OBLIGATION OF THE PURCHASER TO RESTORE THE 
 PREMISES TO THE VENDOR. 
 
 VENDOR MUST BE PLACED IN STATU ftUO. § 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 
 we shall consider as controlling the rights of the parties, when the 
 purchaser seeks to avoid the contract on failure of the title, is as , 
 follows : 
 
 Peoposition II. A. purchaser of lawls cannot, as a general 
 rule, while the contract is executory, recover hach tJte purchase 
 money on failure of the title, or resist the jxiyment thereof, without 
 restoring the premises to the vendor, and placing him, in statu 
 quo} 
 
 ' 1 Sugd. Vend. m. p. 407, 473 (6th Am. ed.). Nicolson v. Wadswortti, 2 Swanst. 
 365; Wlckliam V. Ernest, 4Madd. .34; Young v. Sincombs, 1 Younge, 275; Tindal 
 T. Cobham, 2 My]. & K. 385. Cope v. Williams, 4 Ala. 362; Donaldson v. 
 Waters, 30 Ala. 175; Lett v. Brown, 56 Ala. 550; Wade v. Killougb, 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. 
 Peay v. Capps, 27 Ark. 160. Haynes v. White, 55 Cal. 39; Hicks v. Lovell, 64 
 Cal. 29; 49 Am. Rep. 679; 27 Pac. Rep. 942; Gates v. McLean, 70 Cal. 42; 11 
 Pac. Rep. 489; Hannan v. McXickle, 82 Cal. 122; 23 Pac. Rep. 271; Rhorer v. 
 Bila, 83 Cal. 54; 23 Pac. Rep. 274; Worley v. Northoott, 91 Cal. 512; 27 Pac. 
 Rep. 767. Boof-h v. SafEold, 46 Ga. 278; Cherry v. Davis, 59 Ga. 454; Summerall 
 V. Graham, 62 Ga. 729. Martin v. Chambers, 84 111. 579; Long v. Saunders, 88 
 111. 187. Osborn v. Dodd, 8 Bl. (Ind.) 467; Wright v. Blackley, 3 Ind. 101; Wiley 
 V. Howard, 15 Ind. 169. Bodley v. McChord, 4 J. J. Marsh. (Ky.) 483; Peebles v. 
 Stephens, 3 Bibb (Ky.), 324; 6 Am. Dec. 660. Hill v. Samuel, 31 Miss. 307; 
 Shipp V. Whelers, 33 Miss. 647. Holladay v. Menefee, 30 Mo. App. 207. More 
 
OBLIGATION OF PURCHASEE TO RESTORE PREMISES TO VENDOR. 585 
 
 This proposition is founded upon the plainest principles of equity. 
 The purchaser cannot say to the vendor " our contract is at an end, 
 but I shall continue to occupy the premises until I have no further 
 use for them." ' If the rule were otherwise the purchaser 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.^ So long as the purchaser 
 retains possession of the premises, with notice of objection to the 
 title, he is looked upon as waiving the right to rescind.' 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 disafhrm the contract 
 and at the same time have its benefit by retaining the possession."* 
 And when the vendee is sued for the purchase money at law, and 
 the title has failed, he cannot, even under a statute allowing the 
 interposition of equitable defenses in actions at law, disaffirm the 
 contract in part by detaining a part of the purchase money, and at 
 the same time insist upon a conveyance of the lands. He must 
 make his election between his right to have a specific performance 
 
 V. Smedburg, 8 Paige Ch. (N. Y.) 600; Gale v. Nixon, 6 Cow. (N. Y.) 445; Lew:s 
 V. McMillan, 41 Bavb. (N, Y.) 420; Wright v. Delafield, 23 Barb. (N. Y.) 498. 
 Tompkins v. H3fatt, 28 N. Y. 347. Garviu v. Cohen. 13 Rich. L. (S. C.) 153. 
 Kelly V. Kershaw (Utah), 16 Pac. Rep. 488. Horton v. Arnold, 18 Wis. 212, where 
 buildings on the premises had been destroyed by flre. In a few cases, in which 
 the contract had not been executed by a conveyance, it seems to have been held 
 that the purchaser might detain the purchase money on failure of the title, 
 though he had not been evicted from the premises nor had surrendered the pos- 
 session to the vendor. Lewis v. McMillan, 31 Barb. (N. Y.) 395; reversed 
 on motion for new trial, 41 Barb. (N. Y.) 420. In Hood v. Huff, 2 Tread. (S. C.) 
 the contract had been executed. In Feemster v. May, 13 Sm. & M. (Miss.) 275; 
 53 Am. Dec. 83, and Wiggins v, McGimpsey, 13 Sm. & M. (Miss.) 533, the pur- 
 chaser was held entitled to detain the purchase money, though he was undis- 
 turbed 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, p. 578. 
 
 ' More V. Smedburgh, 8 Paige (N. Y.), 600, 606. 
 
 ' Congregation v. Miles, 4 Watts (Pa.), 146. 
 
 8 Bellamy v. Ragsdale, 14 B. Mon. (Ky.) 393. Thompson v. Drellis, 5 Rich. 
 Eq. (S. C.) 370. Hale v. Wilkinson, 31 Grat. (Va.) 75. Rhorer v. Bila, 83 Cal. 
 51. Brumfield v. Palmer, 7 Bl. (Ind.) 227. 
 
 * Hurst V. Means, 2 Swan (Tenn.), 594. 
 74 
 
586 MARKETABLE TITLE TO REAL ESTATE. 
 
 of the contract, and liis right to have damages for a breach thereof, 
 or his right to surrender the possession and to recover back so niucli 
 of tlie purchase money as he may have paid.' 
 
 This rule is also an excellent practical test of the hona fides of 
 the purchaser in raising objections to the title when no advei'se 
 claimant is threatening his possession. If, under such circumstances, 
 he does not offer to restore the premises to the vendor, it -will, in 
 most cases, be foimd that his objections are nice and captious 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 objections 
 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.^ 
 
 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 afiirm the contract, keep the premises, and recover the 
 purchase price as damages, if the title has completely failed.' If 
 this decision be sound, the rule that the purchaser seeking to recover 
 back the purchase money must restore the premises to the vendor 
 is of slight importance, as it might be evaded by a mere change in 
 the purchaser's pleadings. Of course these observations do not 
 apply where the purchaser seeks to detain the purchase monev on 
 failure of the title, for as a general rule the purchaser can maintain 
 no action for failure or inability to convey a good title unless he has 
 paid the purchase money in full.'' 
 
 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 
 
 ' Watkins v. Hopkins, 13 Grat. (Va.) 743; Shiflett v, Orange Humane Society 
 7 Grat. (Va.) 297, 
 
 ' 3 Sugd. Vend. (7tb Am. ed.) 136, note. Timms v. Shannon, 19 Md. 296; 81 
 Am. Deo. 632. 
 
 'Ante, p. 17. Fletcher v. Button, 6 Barb. (N. Y.) 646. 
 
 * Ante, p. 15. Clarke v. Locke, 11 Humph, (Tenn.) 300. 
 
OBLIGATION OF PUECHASEK TO EE8T0EE PEEMISES TO VENDOE. 587 
 
 premises, he is liable to an action of ejectment by the vendor, and 
 may be evicted.^ And the fact that he has made expensive impro\e- 
 ments on the premises will not justify him in refusing to give up 
 the possession. He should not be encouraged to make improvements 
 while the purchase money is unpaid.^ 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 noti- 
 fying 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 claun the purchase money already paid as for- 
 feited, or in which, by reason of moneys expended in improvements, 
 or from other causes, it would be inequitable to deprive the pur- 
 chaser of the possession.^ We have already seen that the purchaser 
 cannot, while the contract is executory, get in an outstanding title 
 and set up the same against the vendor when sued for the purchase 
 
 ' 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 against 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. Be Roche, iVeates (Pa.), 12, 
 Marlin v. Willink, 7 8. & 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 eject- 
 ment 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. Nether- 
 cott, 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 con- 
 tract 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 possession 
 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 prem- 
 ises; and if he fails and refuses to adopt either course, he is liable to an action of 
 ejectment by the vendor. 
 
 » Cherry v. Davis, 59 Ga. 454. Gates v. McLean, 70 Cal. 42. 
 
 ^Estell V. Cole, 53 Tex. 170. 
 
588 MARKETABLE TITLE TO EEAL ESTATE. 
 
 ■money or the possession. He must surrender the possession before 
 he -wtU be permitted to litigate or dispute the vendor's title.^ 
 
 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.'^ 
 
 § 25T. VENDOR MUST BE PLACED IN STATU aUO. 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.^ 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.* 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.^ In the case of an exe- 
 cuted contract, as has been seen,* the rents and profits, unless recov- 
 erable 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 purchaser the 
 
 ' Ante, " Estoppel," § 219. Islerv. Eggers, 17 Mo. 332; Havvey v. Morriss, 68 
 Mo. 475; Pershing v. Canfield, 70 Mo. 140. 
 
 2 Stone V. Gover, 1 Ala. 287. 
 
 3 Post, ch. 30, § 279. Guttschlick v. Bank, 5 Cranch (C. C. U. S.), 435. In 
 Concord Bank V. Gregg, 14 N. H. 381, a mill on tlie purchased premises was 
 destroyed after it had been conveyed to the purchaser, but the loss having 
 ■occurred without fault on his part, and there being nothing to show that the loss 
 would not have occurred if the vendor himself himself had been in possession, it 
 was held that he must accept a reconveyance of the premises. The contract had 
 l)een rescinded because of fraudulent representations by the vendor. 
 
 ■•Shackelford v. Handly, 1 A. K. Marsh. (Ky.) 500; 10 Am. Dec. 753. 
 
 5 Collins V. Thayer, 74 111. 188; Whitney v. Cochran, 1 Scam. (111.) 209. 
 
 «Ante, p. 393. 
 
OBLIGATION 01* PT3ECHASBE TO EESTOEE PEEMISES TO TENDOE. 58ft 
 
 vendor could not be put in statu quo by restoring the premises to 
 him,' but this doctrine seems to have gained no foothold in America, 
 where the right to rescind has generally been allowed on failure of 
 the title, notwithstanding delivery of possession to the vendee.^ If, 
 instead of seeking to rescind the contract by recovering back the 
 purchase money, the purchaser affirm it by maintaining an action 
 to recover damages for the vendor's fraud in imposing a worthless 
 title upon him, the purchaser may recover without surrendering or 
 offering to surrender the premises.^ If, in such case, he had paid 
 the purchase money, the measure of his damages would be the dif- 
 ference between the value of the premises 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 m 
 statu quo by conveying away the premises to a stranger.^ 
 
 § 258. RESTORATION OF PREMISES A CONDITION PRECEDENT 
 TO RESCISSION. It has been held that a purchaser of lands seek- 
 ing rescission of the contract at law by recovering back the pur- 
 chase 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.' " In equity," the court observed in the 
 same case, " a different rule prevails, as the action at law proceeds 
 upon a rescission of the contract, while in equity the action proceeds 
 for a rescission of the contract." Elsewhere, under statutes allow- 
 ing courts of law to administer equitable relief, it was held that the 
 j adgment, where the purchaser seeks to detain the purchase money, 
 could be so framed as to require the purchaser to surrender the land 
 
 ' Hunt V. Silk, 5 East, 449. Blackburn v. Smith, 3 Exch. 783. 
 
 » Taft V. Kessel, 16 Wis. 278. 
 
 ' Stockliam v. Cheney, 62 Mich. 10. 
 
 * Rodgers v. Olshofisky, 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. 
 
 ' Johnson v. Burnside, (S. D.) 52 N. W. Rep. 1057. 
 
590 MARKETABLE TITLE TO EEAL ESTATE. 
 
 before he can have the benefit of the verdict.^ Where, however^ 
 courts of law have no jurisdiction to direct a surrender of the prem- 
 ises 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.^ 
 
 § 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.^ The appli- 
 cation of this doctrine in an action in which the purchaser seeks 
 
 ' Sizemore v. Pinkston, 51 Ga. 398. In Taft v. ICessel, 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 purchase 
 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. 
 
 '' Young V. Harris, 2 Ala. (N. S.) 108. In an action to recover back the pur- 
 chase 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 surrendered 
 tlie possession before bringing the action. Pino v. Beckwith, 1 N. Mex. 19. 
 
 ' In Gans v. Renshaw, 2 Pa. St, 34; 44 Am. Dec. 152, it was held that a pur- 
 chaser, 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 war- 
 ranty against incumbrances bad been rejected by the purchaser on the ground 
 that the premises were incumbered by certain liens, and the vendor brought an 
 action for the purchase money. The opinion of the court was delivered by GrnsoN, 
 C. J., who said; " It is said it was his (the purchaser's) duty, if the title was not 
 such as he bargained for. to give back the possession and declare his determina- 
 tion 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 contract? 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 
 
OBLIGATION OF PtJEOHASEE TO EESTOEE PEEMISES TO VENDOE. 591 
 
 either to recover back tlie 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 another 
 and independent action to do that whicli might be accomplished in one. 
 It has been held in the same State, in several cases, that the pur- 
 chaser cannot, on failure of the title, recover back the purchase 
 money without offering to return the premises to the vendor.' 
 
 § 260. KESTORATION 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. '^ There are cases which, at the first 
 ii'laiice, might appear to countenance such a doctrine, but upon closer 
 o-camination it will be found that they establish nothing beyond the 
 proposition that the purchaser is not obliged to surrender the pos- 
 session, where the title fails, as a condition precedent to the rescis- 
 sion of the contract. At law it seems that he would be compelled 
 
 the defendant 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 irrepara- 
 ble what was he to do? Certainly, not to bring an action for the purchase money 
 in order to force a rotten title on the purchaser for a good one, and this on the 
 basis of his own default. It would be his dutj' to apprise the vendee of his ina- 
 bility, restore whatever had been paid, and demand the possession. In that case 
 equity would not enjoin him from proceeding on his legal title to get back the 
 property, but not to compel the vendee to pay for what he did not get." See, 
 also, Nicoll V. Carr, 35 Pa. St. 381. 
 
 'Morrow v. Rees, 69 Pa. St. 368; Pearsoll v. Chapin, 8 Wright (Pa.), 9; Bab- 
 cock V. Case, 61 Pa. St. 427; 100 Am. Rep. 654; Wright v. Wright, 13 Pa. Co. 
 Ct. Rep. 238. 
 
 ^ Wimberg v. Schwegeman, 97 Ind. 528; Vance v. Shroyer, 79 Ind. 880; Wiley 
 V. Howard, 15 Ind. 169. Vining v. Leeman, 45 111. 246; Whitlock v. Denlinger, 
 69 111. 96; Laforge v. Matthews, 68 111. 328. Fratt v. Piske, 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.) 33 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 cannot allege his own fraud in order to reclaim it; he 
 
592 MAEKBTABLE TITLE TO EEAL ESTATE. 
 
 to give up, or to oifer 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 pur- 
 chaser, conditioned upon his delivery of the premises to the vendor.* 
 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 per- 
 son who fraudulently represents that he has title to the promises. 
 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 
 the payee.^ The rule that the purchaser cannot deny the vendor's 
 
 may rescind for what he gave and affirm for what he got, and thus is allowed by 
 law to return injustice by fraud, and invited to learn the art of being duped as a 
 mode of profitable speculation. "We do not so understand the law." In an 
 action to recover back the purchase money on the ground of fraud, the purchaser 
 must show an actual rescission by him, notice thereof to the vendor, and, as a 
 general rule, an offer to put the vendor in statu quo by returning the property, 
 unless it is utterly worthless. Mon-ow v. Rees, 69 Pa. St. 373. 
 
 ' Coffee V. Newson, 2 Kelly (Ga.), 443. Taft v. Kessel, 16 Wis. 397. Young v. 
 Harris, 2 Ala. (N. S.) 108, where it was said: "The decisions of this court are 
 uniform, when the question has arisen at law, that the vendee, while he retains 
 the possession, cannot refuse to pay the purchase money; otherwise, it might 
 happen that he would get the land without paying for it, as a court of law could 
 exact no condition from him as the price of affording its aid. But in a court of 
 chancery, where the rights of the parties can be accurately adjusted, no reason is 
 perceived why the vendee, who has been induced by the fraudulent representa- 
 tions 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 by 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 
 induced 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 chancery 
 before an eviction and without an abandonment of tlie possession." See, also Whit- 
 worth V. Stucliey, 1 Rich. Eq. (S. C.) 408. 1 Sugd. Vend. m. p. 247. In Green- 
 lee V. Gaines, 13 Ala. 198; 48 Am. Dec. 49, it was held that the purchaser need 
 not surrender the possession if tlie fraudulent vendor were insolvent and the 
 detention of the premises was necessary for his (the purchaser's) indemity. 
 
 « Watson V. Kemp, 41 Ga. 586. 
 
OBLIGATION OF PUECHASEE TO EESTOEE PREMISES TO VENDOE. 593 
 
 title has no application where the purchaser is already in possession 
 when the contract is made, and the vendor has fraudulently misrep- 
 resented or concealed the state of the title.' 
 
 If the vendor fraudulently misrepresent the state of his title, it is 
 not necessary that the purchaser shall return a title bond executed 
 by the vendor before he can be permitted to rescind. lie may rely 
 upon such misrepresentations as a defense to an action for the pur- 
 chase money without returning the bond.^ 
 
 § 261. WHEN PURCHASER NEED NOT RESTORE THE PREM- 
 ISES. PURCHASER'S LIEN. The purchaser is not obliged to 
 return the premises before suing to recover back the purchase money 
 if the vendor refuse to receive them.' Nor does any such obligation 
 rest upon him if, through mistake or fraud on the part of the 
 vendor, he purchased his own property.* The most important 
 exception to the rule, liowever, and oue which has been i-ecognized 
 iu several of the States, is that the purchaser need not restore the 
 premises if it is necessary for him to retain them for his im lemnity, 
 where the vendor is insolvent or cannot be compelled to respond in 
 damages for his breach of the contract.^ In such case, however, the 
 
 ' Hammers v. Hannick, 99 Tex. 412; 7 S. W. Rep. 345, citing Taylor Landlord 
 & Tenant, 416, 514. 
 
 2 Coburn v. Haley, 57 Me. 347; Wyman v. Heald, 17 Me. 329. 
 
 ' Johnson v. Burnside, (S. D.) 53 N. W. Rep. 1057. Elliott v. Boaz, 9 Ala. 
 772; Smith v. Robertson, 23 Ala. 824. Culbertson v. Blanchard, 79 Tex. 486; 15 
 S. W. Rep. 700. 
 
 "Phillips V. O'Neal, 87 Ga. 727; 13 S. E. Rep. 819. "This," says Mr. Wash- 
 burn, " is but little more than carrying out the old idea of a use raised in favor 
 of a vendee vfho has paid the purchase money of an estate. And when the con- 
 tract is executory as fast as the purchase money is paid in, it is a part perform- 
 ance of such contract, and to that extent the payment of the money, in equity, 
 transfers to the purchaser the ownership of a corresponding portion of the estate. 
 * * * The mode of enforcing such liens is by a bill in equity to have satis- 
 faction 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 iu a suit or proceeding 
 brought for the purpose. It cannot be reached by a collateral proceeding. 2 
 Washb. Real Prop. 93 (509). 
 
 ' Duncan v. Jeter, 5 Ala. 604; 39 Am, Dec. 343; 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, 36 Wis. 588; 7 Am. Rep. 96. 
 
 75 
 
594 MAEKETABLE TITLE TO REAL ESTATE. 
 
 burden devolves on the purchaser to show that the vendor is insol- 
 vent or unable to answer in damages.' The purchaser will not be 
 allowed to keep the premises where the vendor, although a non- 
 resident and imable to make title, is fully solvent, and was a non- 
 resident at the time the contract was made, and has remained so 
 ever since.^ 
 
 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.^ Of course, such a lien could 
 not prevail against the true owner,^ and it is obvi-ous that if the pur- 
 chaser were liable to the latter for rents and profits, he could derive 
 no benefit from the retention of the premises. There may be cases, 
 however, in which no such liability exists, as where the vendor, sell- 
 ing 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 improve- 
 ments. The purchaser will not be entitled to a lien, as against a 
 subsequent iona fide purchaser, without notice of his rights.^ But, 
 
 Payne v. Atterbary, 1 Harr. Ch. (Mich.) 414. Wickman v. Robinson, 14 Wis. 
 493; 80 Am. Dec. 789. Davis v. Heard, 44 Miss. 50. Bibb v. Pratber, 1 Bibb 
 (Ky.), 313; 2 Am. Dec. 711. Shirley v. Shirley, 7 Bl. (Ind.) 452. Colcock, J., in 
 Rutledge v. Smith, 1 McCord Ch. (S. C.) 403. 
 
 ' Wyatt V. Garlington, 56 Ala. 576. 
 
 ' Parks V. Brooks, 16 Ala. 529. 
 
 '2 Sugd. Vend. (14th ed.) 672; 2 Warvelle Vend. 884; 3 Story Eq. Jur. § 1318, 
 n. See, also, cases cited, supra, this chapter. Taft v. Kessel, 16 Wis. 273. 
 Newnan v. Maclin, 5 Hayw. (Teiin.) 341; Perkins v. Hadley, 4 Hayw. (Tenn.) 
 148; Pilcher v. Smith, 3 Head (Tenn.), 208; Hilton v. Duncan, 1 Cold. (Tenn.) 
 316, 330. Benson v, Shotwell, 87 Cal. 49; 25 Pac. Rep. 349. Galbraith v. Reeves, 
 82 Tex. 357; 18 S. W. Rep. 696. Coleman v. Floyd, (Ind.) 81 N. E. Rep. 75. 
 Grifflth V. Depew, 3 A. K. Marsh. (Ky.) 177; 13 Am. Dec. 141. 
 
 * Thus, in McWilliams v, Jenkins, 72 Ala. 480, it was held that the purchaser's 
 lien could only extend to such lands, or portions thereof, as the vendor 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 possession. 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 examination, was denied a lien upon 
 the land for the purchase money paid. 
 
 6 Chase v. Peck, 21 N. Y. 581, 585, dictum. 
 
OBLIGATION OF PUEOHASEE TO EE8T0EE PEEMISE8 TO VENDOE. 595 
 
 as against a suosequent purcliaser with notice, his lien will be 
 enforced.' The purchaser's lien will, after a time given the vendor 
 for repayment has expired, be enforced by sale of the land.^ If the 
 purchaser be able to follow and identify tlie purchase money paid by 
 him, it seems that he may unpress it with a trust. But it seems, 
 also, that the purchaser has no lien on the purchase money after it 
 has been appropriated by the vendor, even though the latter fraudu- 
 lently concealed tlie state of the title.' 
 
 § 262. OTHER EXCEPTIONS. The rule that the purchaser can- 
 not detain the purchase money without restoring the possession, of 
 course does not ajjply where the title fails to part of the premises 
 only, and the purchaser does not seek a rescission but elects to take 
 such title as the vendor can make, with abatement of the purchase 
 money as to that part to which the title has failed.^ 
 
 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 a^-ail 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 pur- 
 chaser has been begun or threatened by an adverse claimant. In 
 such case it seems that the purchaser, anxious to preserve his bar- 
 gain, may detain both the premises and the unpaid purchase 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.' 
 
 ' Clark V. Jacobs, 56 How. Pr. (N. Y.) 519. 
 
 » Jett V. Locke, 5 J. J. Marsh. (Ky.) 591. 
 
 '2 Sugd. Vend. (8th Am. ed.) 200. 
 
 *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. 
 
 '' 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 weat 
 
596 MAEKBTABLE TITLE TO EEAL ESTATE. 
 
 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 paramount 
 title in a thu-d person in order to sustain that defense.^ It might, 
 perhaps, be inferred from these cases that if the purchaser were 
 able to estabhsh the existence of the paramount title, he might detain 
 the purcliase 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 of the purchase money merely 
 because the vendor has no title, or a defective title,^ unless the vendor 
 has been guilty of fraud,^ or is insolvent and unable to respond in 
 damages for breach of the contract.* But these cases, it is to be 
 observed, do not militate against the right of the purchaser to rescind 
 the contract and recover 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 tlie 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.'^ It seems impossible to 
 
 into possession of the purchased pi-emises; 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 pos- 
 session, 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 pay- 
 ment be stayed until appellees can make her a good title; and this she had aright 
 to ask, and it should have been granted her." 
 
 1 Cantrell v. Mobb, 43 Ga. 193; Sawyer v. Sledge, 55 Ga. 152. In both cases 
 the contract was executory. 
 
 2 Blanks v. Walker, 54 Ala, 117. 
 
 3 Id. Young V. Harris, 3 Ala. 108; Elliott v. Boaz, 9 Ala. 773; Bonham v. 
 Walton, 34 Ala. 514. 
 
 * Kelly V. Allen, 34 Ala. 663; Magee v. McMillan, 30 Ala. 430; McLemore v 
 Mabson, 30 Ala. 137. 
 
 ' Hancock v. Cloud, 65 Ga. 308. This was an action to recover the purchase 
 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 
 
OBLIGATION OT PTJECHASER TO BESTOEE PREMISES TO VENDOR. 597 
 
 reconcile such decisions 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 been held that if the 
 contract for the sale of the land was void, e. g., 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.* Such 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. Accord- 
 ingly it has been held that the invalidity of the contract of sale 
 
 title doubtful for that reason, liad 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 disturbed in the possession of the land. 
 Plainly the effect of such a decision might be to compel the purchaser to buy a 
 lawsuit. 
 
 ' Barickman v. Kuykendall, 6 Bl. (Ind.) 21. JlcCracken v, San Francisco, 16 
 Cal. 591, 628. Cope, J., dissenting. Hurst v. Means, 3 Swan (Term.), 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 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 received. The case does not show whether the 
 plaintiff had or had not restored the possession. 
 
598 MARKETABLE TITLE TO EEAL ESTATE. 
 
 Ehould occasion no exception to the rule that the purchaser cannot 
 
 recover back the purchase money so long as he retains possession of 
 
 the premises.^ 
 
 ■ Cope V. "Williams, 4 Ala. 363, where it was said by Collibe, 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 notwithstanding 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 payment, but the action 
 is by the buyer, and assumes the utter invalidity of the contract, and asserts a 
 tight to be refunded what has been paid under it, although the purchaser's 
 possession has never been molested, and the vendor has 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 McCrackeu v. 
 San Francisco, 16 Cal. 638. In Reynolds 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 OP THE PURCHASE MONEY "WHERE THERE HAS 
 BEEN A BREACH OP THE COVENANT OP SEISIN, (a) 
 
 GENEEAL RULE. § 264. 
 
 aUALIPICATIOlirS OF THIS RULE. § 365. 
 
 BREACH OF COVENANT OF TO PART OF THE PREMISES. § 266. 
 
 § 264. GENERAL RULE. It has been frequently declared that 
 an executed contract for the sale of lands cann,ot bo 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.' 
 No case can be found in which, after delivery of piossession and 
 execution of a conveyance on the part of the vendor, and payment 
 of the purchase monej' 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.^ And in many of the States the rule is 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 pur- 
 chaser upon failure of the title, to detain or to recover hack the purchase money, 
 since the exercise of this right in most instances amounts in substance to an elec- 
 tion to rescind the contract. But inasmuch as the averment of an eviction under 
 title paramount as a defense to an action for the purchase money, is substantially 
 a cross-action by the ijurchaser 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, pp. 
 430, 253. 
 
 -Beebe v. Swartwout, 3 Gil. (111.) 168; Ohling v. Luitjens, 32 111. 28. 
 
 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 contract, and tendered a 
 reconveyance to the vendor. The plaintiff had not inclosed or cultivated the 
 land, but there was nothing to prevent him from taking possession and occupy. 
 
600 MAKKETABLE TITLE TO EEAI, ESTATE. 
 
 the purchaser has accepted a conveyance with covenants for title, 
 and has not been actually or constructively evicted from the prem- 
 ises by one having a better right, nor compelled to satisfy an incum- 
 brance 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 premises 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 
 
 ing the premises. There was a judgment for the plaintiff, which was reversed 
 on appeal, the court saying: "The parties tried the cause as if the plaintiff had 
 sued the defendant for a breach of the covenant of seisin, and judgment vras 
 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 alle- 
 gation of fraud or misrepresentation 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 con- 
 tracts are executed by conveyances we are of opinion that there can be no rescis- 
 sion 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 ii-reparable mischief which other- 
 wise might result from the insolvency. He ought not to act upon the principle of 
 rescinding +he 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 commensurate 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 
 conveyance has been made and accepted with warranty of title, and possession 
 delivered and uninterruptedly enjoyed, without eviction or molestation. In such 
 a case a bill for the dissolution of the contract and the payment of the considera- 
 tion enjoined cannot be sustained except in the case of fraud, insolvency 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 con- 
 veyed and the inability of the vendee to protect himself against eviction under 
 
DETENTION OF PURCHASE MONEY — BEEACII OF COVENANT OF SEISIN. 601 
 
 for the pui'chase money.' 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 com- 
 pelled to pay over the purchase money when there is a moral cer- 
 tainty of his eviction by an adverse claimant, and a possibility that 
 his judgment against the grantor for damages may be worthless 
 when recorded, does violence to common principles of equity and 
 right. Such, however, is the consequence of a rigid application of 
 the maxim caveat einptor. But in some of the States the I'estraints 
 of this maxim or rule have been thrown off in a large degree. We 
 shall see that in the State of Pennsylvania tlie purchaser is per- 
 mitted 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. ^ 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.' In a number of other States he is permitted to enjoin 
 the collection of the purchase money if he can show that by reasoft 
 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.* 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 recon- 
 veying or offering to reconvey the premises to the grantor, justify 
 us, it is believed, in laying down the following proposition : 
 
 it. And to sustain such a bill after the vendee has accepted the conveyance, the 
 onus lies on him to establish to the satisfaction of the chancellor that the defect 
 of title and imminent danger of eviction existSu" 
 
 ' Ante, p. 253. 
 
 'Post, §271, 
 
 "Ante, p. 449, 451. 
 
 -•Post, §331. 
 
 76 
 
602 MARKETABLE TITLE TO EEAL ESTATE. 
 
 Peoposition III. If tlie contract has heen executed hy a convey- 
 ance with a covenant of seisin or of good right to convey, am,d it 
 clearly appears that the covenantor had no title, the covenantee, 
 though he ha,s not heen disturbed in the possession, will, it seems, 
 in some of the American States, he permitted to set up the hreach 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 ie necessary to put him in statu quo} 
 
 ' Owens V. Rector, 44 Mo. 390, 393. McDaniel v. Bryan, 8 111. App. 273. 
 Mudd V. Green, (Ky.) 14 S. W. Rep, 347. Cartwright v. Culver, 74 Mo. 179. 
 Kirtz V. Peck, 113 N. Y. 322, 331; 31 N. E. Rep. 130. Lowry v. Hurd, 7 Minn. 
 356 (282). Buell v. Tate, 7 Bl. (Ind.) 55; Marvin v. Applegate, 18 Ind. 425. 
 McDunn v. Des Moines, 84 Iowa, 467; Beard v. Dulaney, 35 Iowa, 16. Barnett 
 V. Clark, 5 Sneed (Tenn,)486; 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, § 371, " Rule 
 in Pennsylvania," and. ante, gg 189, 190, "Rule in South Carolina and Texas," and, 
 post, § 331 , ' ' Insolvency and Non-residence of the Covenantor. " Sir Edward Sug- 
 den 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. 3 Sugd. Vend. 
 (14th ed.) 611, No authority is cited for the proposition, and it has been doubted 
 by Mr. Dart. Dart Vend. (5th ed,) 793. 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 title 
 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 covenant of seisin; neither is there 
 any necessity for a reconveyance to the grantor, in order to sustain such recov- 
 ery. It is true these principles were declared in an action for breach of the cove- 
 nant 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, 
 31 Wis. 88; 99 Am. Dec. 165, which was an action to foreclose a purchase-monev 
 mortgage, it was held that the defendant might, under a statutory provision 
 allowing a counterclaim to be set up in foreclosure proceedings, counterclaim 
 for a breach of the covenant of seisin, though he was in the undisturbed posses- 
 sion of the premises. See, also, Merritt v. Gouley, 58 Hun (N, Y.), 372; 13 N. 
 Y. Supp. 133. 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 conveyance in that case, but whether with or without covenants for title does 
 not appear. The grantee had resold and conveyed the premises, and when 
 sued for the purchase money, set up want of title as a defense. The court said: 
 "He (the original grantee) cannot withhold the purchase money, and still retain 
 
DETENTION OF PUECHASE MONET — BREACH OF COVENANT OF SEISIN. 603 
 
 In one of those eases the court said : " We fully recognize the 
 principle that the true consideration of the notes given for the pur- 
 chase money, was the land, and not the covenants in the deed ; and 
 as the title to the land had been defeated by an incumbrance 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 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 uiiled, he 
 must cause his grantee to reconvey it, or oHer to do so, back to plaintiff. No 
 defense can be interposed until the parties have been placed in stahi quo by a 
 reconveyance, or an offer to reconvey to plaintiff whatever title defendant received 
 from plaintiff, no matter what its title may be." In Moyer v. Shoemaker, 5 
 Barb. (N. Y.) 319, it was held that the covenantee could not maintain assumpsit 
 to recover back the purchase money on failure of the title, without reconveying 
 the p'-emises. The right to rescind, provided 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. (Ivy ) 583, 586. In 
 Brick V. Coster, 4 Watts & S. (Pa.) 499, it was said that an aflBdavit of defense 
 by a grantee, with wa/rranty, in a suit for the purchase money, would be insuffi- 
 cient 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 incumbrance. Brown v. Montgomery, (Tex. Civ. App.) 31 S. W. Rep. 1079. 
 In Wisconsin there are dicta in several early cases which support the proposition 
 stated in the text. Taft v. Kessel, 16 Wis. 273; Noonan v. lUsley, 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. 
 635, 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 dis- 
 cussion. 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 controversy 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 pos- 
 session, have been delivered in full execution of the contract of sale. * * * 
 The remark in the opinion of Chief Justice Dixon, in Mecklem v. Blake, 22 Wis. 
 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. Pren- 
 tice, 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. 
 
604 MARKETABLE TITLE TO EEAL ESTATE. 
 
 the defendant so chose to treat it, and the defendant then had the 
 right to repudiate the contract of sale and the notes, for the reason 
 that the consideration of the notes had faUed. But the mere decla- 
 ration that he repudiated the contract was not suiScient to effectuate 
 that purpose. He should have put the other parties in statu quo 
 by a reconveyance of the land, or, at least, a release of the covenants 
 of the deed, so that any subsequent title acquired by the grantor, 
 would not enure to his benefit, and vest in him." ' These views, 
 undoubtedly at variance with the current 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 cove- 
 nant 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 Lunitations, for the statute begins to run, 
 not from the time of the eviction, but from the delivery of the deed 
 
 and that in the absence of such proof the grantee might, on tendering a reconiieyance, 
 rescind the contract and recover back the purchase price paid, loith 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 announces a rule 
 inconsistent therewith, namely, that an executed contract cannot be rescinded, 
 except upon the ground of mistake. Apparently, the court draws a distinction 
 between a rescission by decree of a court of equity, and a virtual rescission 
 accomplished at law, by permitting the purchaser to recover back or detain the 
 purchase money in the shape of damages for a breach of the covenant of seisin. 
 In Taylor v. Lyon, 2 Dana (Ky.), 279, it was said: "If he (the purchaser) took 
 no covenant of seisin, which would have enabled him, witlwut 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 contract, and, by anticipating an eviction, to 
 decree a rescission.'' In Jackson v. Norton, 6 Gal. 187, the right of the cove- 
 nantee 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 representa- 
 tive 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 plain- 
 tiff's remedy was on his covenants, but the demurrer was overruled. 
 
 ' Deal V, Dodge, 26 111. 458, See, also, Whitlock v. Denlinger, 59 111. 96. 
 
 ' See the cases cited above. 
 
DETENTION OF PURCHASE MONEY BEEAOH OF COVENANT OF SEISIN. 605 
 
 containiiig the covenant.' 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 pros- 
 pect 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 : Eirst, 
 because there are many defects of title not apparent from the public 
 records nor upon the face of the instruments 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 protect 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 .^ This 
 objection loses its force if the right of the purchaser to detain the 
 purchase money be confined to, cases in which there is a clear and 
 undoubted failure of the title, a hostile assertion of the adverse title, 
 and a moral certainty 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,^ 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 course, that its 
 absence would scarcely warrant a presumption of laches against the 
 purchaser. 
 
 1 Rawle Govts. (5tli ed.) § 229. Matteson v. Vaughn, 38 Mich. 373. Spoor v. 
 Green, L. R., 9 Exoh. 99. In Sherwood v. Laiidon, 57 Mich. 219, the eviction 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 Govts. (5th ed.) § 839. See also Id. §§ 178, 183, 184. 
 
 8 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 pay- 
 able if the title was not perfected. Where a deed with general warranty pro- 
 vided that deferred payments of purchase money should not be made until 
 "acreage of clear title should be determined," it was held that the purchaser 
 
606 MAEKETABLE TITLE TO EEAL ESTATE. 
 
 A vast 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.* In most of tliese cases, however, it will be seen either that 
 the covenantee was seeking to recover hack the purchase money; or 
 that he had purchased with notice of the want of title ; or that he 
 
 might detain the purchase money though there had been no eviction. American 
 Asson. V. Short, (Ky.) 30 S. W. Rep. 978. 
 
 ' Ante, p. 421, cases cited in n. 2. McC'onihe v. Fales, 107 N. Y. 404; 14 N. E. 
 Rep, 285; Parkinson v, Sherman, 74 N. Y. 92; 30 Am. Rep. 368. 
 
 Abbott V. Allen, 2 Johns. Ch. (N. Y.) 519; 7 Am, Dec. 554, and Bumpus v. Plai- 
 ner, 1 Johns. Ch, (N". Y.) 213, aretheleadingcasescitedtosustainthedoctrine 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 unmarketable. In neither case was there 
 any one asserting or prosecuting an adverse title, nor was any oJEEer made to 
 reconvey the premises. Such objections as were made appear to have been fer- 
 reted out merely for the purpose of delaying the collection of the purchase 
 money. Chancellor Keht rendered the decision in both these cases, and after- 
 wards, 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 outstand- 
 ing paramount title in a stranger, which was being prosecuted by suit in eject- 
 ment againt the covenantee. Johnson v. Gere, however, has been disapproved 
 in many subsequent New York decisions. See Miller v. Avery, 2 Barb. Ch. (N. 
 Y.) 595; Piatt V. Gilchrist, 3 Sandf. (N. Y. S. C.) 118. The cases cited by Mr. 
 Rawle (Covts. for Title [5th ed.], 687) 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 covenantee 
 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. Woolbright, 1 Ga. Dec. 98; McGhee v. Jones, 10 Ga. 127. 133. 
 
DETENTION OF PtTECH ASE MONEY BEE ACH OF COVENANT OF SEISIN. 607 
 
 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 
 
 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 con- 
 veyance with general warranty, so far as the right to detain the jjurchase money 
 is concerned. Miller v. Long, 3 A. K. Marsh. (Ky.) 334; Perciful v. Hurd, 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. Mon. 
 (Ky.) 537; Casey v. Lucas, 3 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 lalc 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 qualification whatever. See, also. Gale v. Conn, 3 J. J. 
 Marsh. [Ky.] 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 posses- 
 sion of part of the land, and the court considered that the remedy at law on the 
 bond was sufficient. Ohling v. Luitjens, 32 111. 33; 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 con- 
 veyance with covenants which did not embrace the defect of which he com- 
 plained. Haldane v. Sweet, 55 Mich. 196. Rescission was denied here (1) 
 because the covenantee bought with notice of certain physical incumbrances 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 pur- 
 chase 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. [Miss.] 456.) Cooley v. Rankin, 11 Mo, 647. The objections 
 to the title in this case were 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, 4Halst. (N. J. Eq.)299. 
 It was not shown here that the title had failed. Leggett v. McCarty, 3 Edw. Ch. 
 (JST. 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 
 
608 MARKETABLE TITLE TO REAL ESTATE. 
 
 title. In a State in wliich the rule that a breach of the covenant of 
 seisin is no ground for detaining the purchase money unless the cov- 
 enantee has been evicted, appears to be firmly rooted, it is, neverthe- 
 less, admitted that a judgment in ejectment against the covenantee 
 in favor of an adverse claimant will justify an injunction against the 
 collection of the purchase money, though it is clear that such a judg- 
 ment does not amount to an eviction, unless the covenantee chooses 
 to surrender the possession to the adverse claimant.^ In such a case, 
 
 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, 3 Rich. Eq. (S. C.) 331; Maner v. Washington, 
 3 Strobh. Eq, (S. C) 171, The entire purchase money had been paid in this 
 case, and the object of the complainant was to recover it back . Buchanan v, 
 Alwell, S Humph. (Tenn.) 516. The contract was executory in this case. Young 
 V. Butler, 1 Head (Tenn,), 639. In this case the covenantee expressly dechned 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. Fulg- 
 ham, 3 Tenn, Ch, 193, Long v. Israel, 9 Leigh (Va.), 564. Here the covenantee 
 sought to recover bach and not to detain the purchase money, and the court said 
 (per Tucker, P.) that they had never gone so far as to relieve a covenantee com- 
 plaining 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, pp, 421, 443, Greenleaf v. Queen, 1 Pet. (U, S.) 138. The con- 
 tract 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 possession 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, S'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 tliere 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 chiefly on the 
 ground of incompetency of a court of chancery as not possessing 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 
 
DISTENTION OF PUECHASE MONEY BEEACII OF COVENANT OF SEISIN. 609 
 
 it would be against conscience to compel the covenantee to pay over 
 the 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 impaid purchase money upon a 
 breach of the covenant of seisin is in effect a rescission of the con- 
 tract ;' and, tlierefore, this alleged right of tlie 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.^ 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. Tlie 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 a contract for the sale of lands 
 can be said to be " executed " so long as any part of the purchase 
 
 when the case depondf? 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 author- 
 ize 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 perceive 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. .1. 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 para- 
 mount 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 applicable 
 in any case in which the purchaser seeks to detain the purchase money so long 
 as the title is actually threatened. 
 
 ' A perpetual injunction against proceedings to collect the purchase money 
 practically amounts to rescission of an executed contract. McWhirter v. Swaffer, 
 6 Baxt. (Tenn.) 343, 347. Golden v. Maupin, 2 J. J. Marsh. (Ky.) 237, 241. 
 
 ' McClennan v. Prentice, 85 Wis. 427. 
 7T 
 
610 MAEKBTABLE TITLE TO EEAL ESTATE. 
 
 money remains unpaid,^ especially in America, where it is a com- 
 mon practice to execute a conveyance to the purchaser as soon as 
 tlie contract of sale is made, and to take a mortgage or trust upon 
 the pro'perty 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 pur- 
 chase 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.^ 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 fviture act remains to be 
 done. Story on Cont. (oth ed.) § 93. Farrington v. Tennessee, o Otto (U. S.), 
 683. Pox V. Kitton, 19 111. 519, 533. Fletcher v. Beck, 6 Crancb (U. S.). 137. 
 A contract for the sale of lands is "executed " when the purchase money is paid, 
 possession given, and a deed delivered to the purchaser. Frazer v. Robinson, 43 
 Miss. 131. In no case can a contract for the sale of lands be said to be "exe- 
 cuted " until the purchase money has been paid and a conveyance made to the 
 purchaser. Herbemont v. Sharp, 3 McCord L. (S. C.) 365. Robison v. Robison, 
 44 Ala. 387, 385. 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 repugnant to or incousistent 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 Vi'ould not be regarded as "executed," notwith- 
 standing 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. 
 
 ' Rawle Govts. (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 possession 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, there- 
 fore, that the covenant for seisin is broken, if at all, at once and completely, is as 
 respects the damages little more than a technical one.' Covenants for Title (1st 
 ed.), 83 (citing the case of Collier v. Gamble, 10 Mo. 472, where it had been 
 
DETENTION OF PUEOHASE MONEY BEEACH OF COVENANT OF SEISIN. 611 
 
 equity will Bot 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 Avords, that the covenantee cannot 
 detain the purchase money merely because the covenantor has no 
 title.* If the purchaser may recover back the purchase money as 
 damages upon a breach of the covenant of seisin, it would seem that 
 upon the same evidence and for the avoidance of circuity of action 
 
 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 paramount 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 
 consideration 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 tlie title, * * * the plaintiff has a 
 right to recoiier damages measured by tlie consideration money, the effect of whose 
 receipt loill be, subject to tlie exceptions hereafter to be noticed, to resist the title, such 
 as it is, in th£ covenantor." If this be sound law and the same author's further 
 proposition, that the covenantee may for the avoidance of circuity of action detain 
 the purchase money, whenever he has a present right to recover damages (Covt. 
 [5th ed.] § 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 pur- 
 chase money, provided he recon veys 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, tlie grantee is without relief. (Govts, for Title, 
 § 339.) See, also, Eawle Covts. (5th ed.) §§ 179, 185, 258, where the author 
 assumes the right of the purchaser on breach of the covenant of seisin to recover 
 substantial damages before eviction. This assumption 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 satisfaction of the broken covenant. 
 The reason which he gives for that view is, that the covenantee cannot be 
 required to elect between the acceptance of the after-acquired title and the recov- 
 ery of damages for breach of the covenant of seisin or of warranty, or to give up 
 his right to rescind the contract by reconveying the premises to the grantor. 
 > Rawle Covts. (5th ed.) §§ 876, 378. 
 
612 MAEKETABLE TITLE TO KEAL ESTATE. 
 
 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 tlie 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 judg- 
 ment for the covenantee operates of itself to reinvest the covenantor 
 with such title as he conveyed, it is plain that a rescission of the 
 contract is thereby practically accomplished. The covenantee gets 
 back his purchase money and the premises are restored to the cove- 
 nantor. We have seen that the covenantee may voluntarily surren- 
 der 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 con- 
 stitutes 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.-" In 
 principle and in practical results there is little difEerence between 
 the exercise of these rights, and the detention of the purchase 
 money upon a reconveyance of the estate to the grantor after i\n 
 adverse title has been hostilely asserted against the covenantee. 
 The law is chieily solicitous that the covenantee 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 condition that it 
 shall be inoperative unless he reconvey tlie premises to the grantor. 
 But much practical difficulty arises where a considerable part of the 
 purchase money has been paid, for in most instances purchasers are 
 
 I Ante, pp. 353, 443. 
 
DETENTION OF PURCHASE MONEY BREACH OF COVENANT OF SEISIN. 613 
 
 unwilling, by reconveying the premises, to sacrifice wliat they have 
 already paid in pursuance of the contract. If, however, the pur- 
 chaser should jaref er 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 
 suifer a constructive eviction by 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.' 
 
 § 265. aUAIilPICATIONS 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 premises to the 
 grantor, and to make good to the latter any loss or damage he may 
 have sustained by reason of the purcliaser's occupation and possession 
 of the premises.^ IS'either should that right be accorded tlie pur- 
 chaser unless it appears that there is a moral certainty of his evic- 
 tion by one whose better title is clear and undisputed, and who is 
 hostilely asserting that title. The mere objection that the title is 
 doubtful or unmarketable should be no ground for detaining the pur- 
 chase 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 claim- 
 ants have been able to make good their claims. After such accept- 
 ance of the possession and deed and covenant of warranty, a ven- 
 dee, before eviction or disturbance, cannot receive the aid of a court 
 
 ' Post, § 337. 
 
 ^ Deal V. Dodge, 86 111. 458. Oases may easily be supposed in which the better 
 Ugal title is in a stranger, with no probability that it will ever be asserted against 
 the purchaser. Thus, in some of the States, neither a married woman nor her 
 heirs are estopped by her covenant of warranty from recovering her separate 
 estate from a purchaser who holds under a conveyance by her not executed in the 
 manner required by statute to pass her title, though the other heirs may be in 
 the full enjoyment of the consideration of such conveyance. 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. 
 
gl4 MARKETABLE TITLE TO EEAL ESTATE. 
 
 of equity to assist him to withhold the purchase money or rescind 
 the contract, but by taking on himself the burden of showing a 
 defect in the title of the vendor of a latent character, and of proving 
 superior outstanding subsisting adversary rights and interests.' IS'or 
 should the defense of want of title be admitted in any case in which 
 the purchaser accepted a conveyance with notice of the defect ; for 
 while notice of a defect of title does not affect the right of the pur- 
 chaser 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.' 
 
 With these qualiiications 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 breacli of the covenant of 
 seisin. Without them, such a rule would invite purchasers to iind 
 loopholes by which to escape from their improvident bargains, and 
 result in injury to the entire commonwealth by lessening the stabil- 
 ity of transactions in real property. 
 
 iCooley V. Rankin, 11 Mo. 643. Lewis v. Morton, 5 T. B. Men. (Ky.) 1. In 
 an action on a bond for purcliase money of land, the defense that the title was 
 doubtful is insufficient; the title must be proven to be absolutely bad. Crawford v. 
 Murphy, 23 Pa. St. 84; Schott v. McFarland, 1 Phil. (Pa.) 53. In Clanton v. Sur- 
 ges, 3 Dev. Eq. (N. C.) 13, a much cited case, the court, by Rdpfin, 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 cir- 
 cumstances, who made on the treaty, a, full communication of his title. To 
 grant the prayer of the bill would be to proclaim encouragement to dishones 
 dealing, and an invitation to purchasers to expose latent defects in their vendor's 
 title. Instead of curing them by enjoyment." 
 
 2 Payne v. Cabell, 7 T. B. Mon. (Ky.) 198. See, also, Whitworth v. Stuckey, 1 
 Rich. Eq. (S. C.) 408, where it was said: " In the frequent fluctuations of the com- 
 mercial 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 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 proba- 
 
DETENTION OF PTJECHASE MONET — BREACH OF COVENANT OF SEISIN, fi 1 5 
 
 § 266. BREACH OP THE COVENANT OF SEISIN AS TO PART OF 
 THE PREMISES. It has been said that upon a " partial " breach of 
 the covenant of seisin, the rule limiting the covenantee's recovery to 
 nominal damages before eviction does not apply, as where a tenant for 
 life conveys vfith covenant for seisin in fee, and that in such a case the 
 covenantee can only be required to pay tlie 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.' Treating this as a propo- 
 sition that the covenantee may detain the purchase money ^ro 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 such a case and one in which there has 
 been a complete failure of title to the entire estate. The distinction 
 might well be made where the breach of the covenant consists in a 
 diminution 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 
 possession of the premises, while in the case last mentioned he would 
 not be permitted to detain the purchase money j>ro 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 chapter, 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. 
 
 bility 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.) 379; Gartman v. Jones, 24 Miss. 234; Merritt v. Hunt, 
 4 Ired. Bq. (N. C.) 406; Henry v. Elliott, 6 Jones Eq. (N. C.) 175. 
 • Rawle Govts. (5th ed.) §§ 186, 187. 
 
CHAPTEE XXVII. 
 
 OP THE DETENTION OR RESTITUTION OP THE PURCHASE MONEY 
 WHERE THE DEED CONTAINS NO COVENANTS FOR TITLE. 
 
 GENERAL PRINCIPLES. § 267. 
 EXCEPTION. VOID CONVEYANCES. § 368. 
 MERGER OF PRIOR AGREEMENTS. § 369. 
 MERGER IN CASES OF FRAUD. § 370. 
 
 RULE IN PENNSYLVANIA AS TO DETENTION OF THE PURCHASE 
 MONEY. § 271. 
 
 § 267. GENERAL PRINCIPLES. The next rule wliicli we shall 
 state in respect to the detention or recovery back of the purchase 
 money, after tlie contract has been executed by the delivery and 
 acceptance of a conveyance, is as follows : 
 
 Proposition V.' If th.e contract has been execicted iy a convey- 
 ance of the land to the purchaser without general covenants for 
 title, he can, if the title fails, neither recover hacl;^ the piirchase 
 
 ■ For Proposition IV, see ante, p. 431. 
 
 ' Co. Litt. 384, a, note; Sugd. Vend. (14th Eng. ed.) 2.51, 549; 3 Kent. Com. 
 (11th ed.) 622 (473); Rawle Covts. (5th ed.) § 321. Maj'nard v. Moseley, 3 Swanst. 
 651; Bree v, Holbech, Doug. 654; Urmston v. Pate, 4 Cruise Dig. 90; Tylee v, 
 Webb, 14 Beav. 14; Cripps v. Reade, 6 T. R. 603; Thomas v. Powell, 2 Cox Ch. 
 394. United States v. Bank of Ga. 10 Wh. (U. 8.) 433; Union Pac. R. Co. v. 
 Barnes, 64 Fed. Rep. 80. Corbett v. Dawkins, 54 Ala. 283. Story v. Kemp. 51 
 Ga. 399. Botsford v. Wilson, 75 111. 133; Nilcs v. Harmon, 80 111. 396; Barry 
 V. Guild, 126 111. 439; 18 N. E. Rep. 759. Major v. Brush, 7 Ind. 333; Jenkin- 
 son V. Ewing, 17 Ind. 505; Starkey v. Neese, 30 Ind. 334; Stratton v. Kennard, 
 74 Ind. 303. Allen v. Pegram, 16 Iowa, 173; Weightman v. Spofford, 56 Iowa, 
 173. In Louisiana, where the civil law prevails and the rule cacecU emptor has 
 but little foothold, it has nevertheless been held that a purchaser taking a con- 
 veyance with sjiecial 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. To the text; Getcholl v. Chase, 37 N. H. 106. Bates v. Delavan, 5 Paige, Ch. 
 (N. Y.) 306; Banks v. Walker, 3 Sandf. Ch. (N. Y.) 348; Whittemore v. Farring- 
 ton, 7 Hun (N. Y.), 393; 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; Sopcr v. Stevens, 3 Shep. (Me.) 133. Gates v. Winslow, 1 Mass. 
 65. In this case it was said that the condition of the purchaser was the same as 
 that of one who gives away voluntarily a sum of money. Earle v. De Witt, 6 
 Allen (Mass.), 530. Bemis v, Bridgnian, 43 Minn. 496; 44 N, W. Rep. 798. 
 Pintard v. Martin, 1 Sm. & M. Ch. (Miss.) 126. Higley v. Smith, 1 Chip. (Vt.) 
 409. Maynard V. Moseley, 3 Swanst. 655 (reported from Lord Nottingham s 
 
DETENTION OF PUECHASE MONEY NO COVENANTS FOE TITLE. 617 
 
 money, nov 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. 
 
 MSS.), where it was said by that eminent jurist that although the purchaser had 
 been evicted, "yet he that purchases lands without any covenants or warranties 
 against prior titles, as here, where the defendants sold only their own title, if 
 the land be afterward evicted by an older title, can never exhibit a bill in equity 
 to have his purchase money again upon that account; possibly there may be 
 equity to stop the payment of such purchase money as is behind, but never to 
 recover what is paid, for the chancery mends no man's bargain, though it some- 
 times mends his assurance; and it cannot be truly said that the defendants keep 
 the money for nothing, since they have done all which was agreed to be done for 
 it, but if the plaintiff had bought that which falls out to be worth nothing, he 
 can complain of none but himself." In Bree v. Holbech, Doug. 654, a leading 
 English case, a personal representative found among the papers of his testator 
 a mortgage deed, and assigned it for the mortgage money, affirming and reciting 
 in the deed of assignment that it was a mortgage deed made or mentioned to be 
 made between the mortgagor and mortgagee for that sum. It was decided that 
 the assignee could not recover back the mortgage money, though the mortgage 
 was a forgery, unless the assignor knew it to be a forgery. The question was 
 whether there was any fraud. If the personal representative had discovered 
 the forgery and then assigned the mortgage as a true security it would have 
 been different. He did not covenant for the goodness of the title, but only that 
 neither he nor the testator had incumbered the estate. It was incumbent on the 
 assignee to look to the goodness of it. 
 
 ' 1 Sugd. Vend. (14th Eng. ed.) 251; (2d id.) 549, 552; Rawle Govts. (5th ed.) 
 § 321. Roswall v. Vaughan, 2 Cro. 196. Greenleaf v. Cook, 2 Wh. (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. McAuley, 22 Ark. 553. 
 Reese v. Gordon, 19 Cal. 147; Hastings v. O'Donnell, 40 Cal. 198. Barkham- 
 stead V. Case, 5 Conn. 528; 13 Am. Dec. 93. McDonald v. Beall, 55 Ga. 288, 
 Patten v. Stewart, 24 Ind. 332; Bethell v. Bethell, 93 Ind. 318; Gibson v. Richart^ 
 83 Ind. 313. Brandt v. Foster, 5 CI. (lo.) 387. Butler v. Miller, 15 B. Mon, 
 (Ky.) 627. Middlekauff v. Barrlck, 4 Gill (Md.), 290; Smith v. Chancy, 4 Md. 
 Ch. 346. Mitchell v. Christopher, (Minn.) 58 N. W. Rep. 873; Hulett v. Hamil 
 ton, (Minn.) 61 N. W. Rep. 673; 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, § 633. Mclntyre v. Long, 71 Tex. 86 
 8 S. W. Rep. 632; Heisch v. Adams, (Tex.) 16 S. W. Rep. 790. Commth. v 
 McClanachan, 4 Rand. (Va.) 482. In Scudder v. Andrews, 2 McL. (U. S.) 464, n 
 and Wiley v. White, 3 Stew, & P. (Ala.) 355, and perhaps in a few other cases, 
 besides the Pennsylvania and South Carolina decisions hereafter noticed, there 
 are dicta to the effect that the pui'chase money may be detained on failure of the 
 78 
 
618 MARKETABLE TITLE TO REAL ESTATE. 
 
 This proposition forms, so to speak, the most conspicuous land- 
 mark in the outlines of the law defining and limitiag the right of 
 the purchaser of lands to relief at law or in equity in case the title 
 fails. The rule therein formulated has been acknowledged from an 
 early period, and has been followed, with few exceptions, both in 
 England and America down to the present time. The reasons for 
 the rule are clear and satisfactory. They are, in the first place, that 
 a purchaser who has failed to protect himself by demanding appro- 
 priate 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 entitled to relief if he makes a 
 catching bargain, that is, agrees to assume the risk of the title, and 
 to acccept a conveyance without covenants.^ " 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." ^ These observations undoubtedly apply with 
 full force in a locality in which it is customary to give general cove- 
 nants of warranty, but lose much of their application wherever it is 
 the custom to give only a quit claim, or a conveyance with limited 
 or special covenants for title. In the former case it is a fair pre- 
 sumption that the attention of the parties was drawn to the state of 
 the title, and that the piirchaser expressly bought merely such title 
 as the vendor had. In the latter case, that is, where it is customary 
 
 title, notwithstanding the absence of covenants in the conveyance. There are 
 no authorities cited in support of these intimations, and they are entitled to 
 little or no weight as controverting the rule stated in the text. 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 v. Prow- 
 itt, 10 La. Ann. 568. Medina v. Stoughton, 1 Salk. 211, per Lord Holt: "If 
 the seller of goods have not the possession, it behooves the purchaser to take 
 care, caveat emptw; 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 can- 
 not have them without a title, and the buyer is at his peril to see to it." 
 
 ' Breckenridge v. Waters, 5 T. B. Mon. (Ky.) 150; 17 Am. Dec. 46; Butler v. 
 Miller, 15 B. Mon. (Ky.) 617. 
 
 » McNeal v. Calkins, 50 111. App. 17. 
 
DETENTION OF PURCHASE MONEY NO COVENANTS FOE TITLE 619 
 
 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 never- 
 theless 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 ho shelter for bad faith on either part." ^ 
 
 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 him- 
 self." This is one of the plainest applications of the maxim co/oeat 
 emptor.^ For the purposes of this rule a quit-claim conveyance, or 
 a conveyance, with " special warranty," or limited covenants for 
 title, is the same as a conveyance without covenants for title, unless 
 the defect of which the grantee complains, was caused by the act of 
 the grantor or some one claiming under him.* So, if the warranty 
 be against a particular specified claim, the covenantee cannot com- 
 plain of the loss of the land through other claims.^ 
 
 ' Post, § 371. 
 
 5 Language of the court in Refeld v. Woolfolk, 22 How. (U. S.) 328. 
 
 '1 Sugd. Vend. (8th. Am. ed.) 534 (856). 
 
 * 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. 
 
620 MARKETABLE TITLE TO EEAL ESTATE. 
 
 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 iniirmity 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 ven- 
 dee 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 suificiency of his 
 title, yet be unwilling to hisure the purchaser against recondite 
 claims, which the most searching investigation might fail to disclose.' 
 If the deed contain special or limited covenants only, and it was 
 executed in a locality or section where the practice is to insert gen- 
 eral covenants, it will be presumed that the parties knew or sus- 
 pected that the title was defective, and that the purchaser agreed 
 to take merely such title as the vendor could make.^ 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 he in any case to recover money which the defend- 
 ant, ex cequo et hono, ought not to retain in his hands.^ 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 
 
 ' 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. remainderman 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, eh. 35, " Mistake." 
 
 'Oliver v. Piatt, 3 How. (U. S.) 410. Miller v. Traley, 33 Ark. 743. Wood- 
 folk V. Blount, 3 Hayw. (Tenn.) 147; 9 Am, Dec. 736; Lowry v. Brown, 1 
 Coldw. (Tenn.) 459, 
 
 '2 Burr. 1013. 
 
DETENTION OF PURCHASE MONEY NO COVENANTS FOB TITLK. 621 
 
 purchaser intended to accept the risks of a defective title, provided 
 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 out- 
 standing paramount title in a stranger. But it is not easy to per- 
 ceive any sound reason why a purchaser who pays off a prior incum- 
 brance on the land, or who redeems from a purchaser under such 
 incumbrance, should not be subrogated to the rights of the incum- 
 brancer without regard to the existence or non-existence of covenants 
 for title in the conveyance under which lie holds. The doctrine of 
 subrogation is the creature of equity, and is in no wise dependent 
 upon any contract or covenant between the parties.' The incum- 
 brancer 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 person buying the incumbrance, or paying it 
 off, other than a mere volunteer, would be accorded that right, justice 
 would seem to require that a purchaser, paying oil 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 
 conveyance without covenants for title; unless, indeed, it should 
 appear that the existence of the incumbrance was known to him and 
 influenced the consideration of the conveyance. 
 
 It is suggested that in those localities in which it is the custom to 
 convey with special warranty only, the purchaser should insist upon 
 a provision in the conveyance by which he would have the right to 
 detain the purchase money and surrender the estate to the vendor, if 
 a paramount title thereto should be asserted in the future. Many 
 vendors, who are unwilling to convey with general warranty, would 
 doubtless consent to such a provision. But if such an agreement 
 shoiild be made, care should be taken to see that it is actually 
 inserted in the conveyance. We shall see that similar agreements, 
 forming part of the executory contract of sale, have been held to be 
 merged in a conveyance of the premises without warranty, and 
 were, therefore, unavailable to the purchaser where evicted by an 
 adverse claimant.^ 
 
 §268. EXCEPTION. VOID CONVEYANCE. An exception to the 
 rule that the purchaser caimot recover back or detain the purchase 
 
 ^ Sheldon Subrogation, ch. 1. 
 'Post, p. 634. 
 
622 MAEKETABLE TITLE TO EEAL ESTATE. 
 
 money in a case where he has taken a conveyance without covenants 
 for title has been held to exist in those cases where for want of 
 autliority in the vendor to convey the deed is absolutely void,' 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.^ So, also, where the grantor, an administrator, had acquired 
 title by purchasing the premises at his own sale and had piaid the pur- 
 chase money out of the funds of the estate.^ So, where a married 
 woman, who had not been privily examined when she joined her hus- 
 band in executing a deed, ejected the purchaser, the representatives 
 of the husband were restrained from collecting the purchase money .^ 
 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 pur- 
 chaser 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.' The rule that the grantee 
 is entitled to no redress where the deed does not contain covenants 
 
 ' Shearer v. Fowler, 7 Mass. 31; Williams v. Keed, 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. Wareham, 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. 
 
 * 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 disaffirmed con- 
 tract, 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 sub j ect it to the satisfaction 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 for- 
 bids all dealings yfiih. 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. 345. Joues v. Cohen, 82 N. C. 75, 81. A contrary view to the above was 
 taken in Shroyer v. Niokell, 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 
 acknowledgment, must refund the purchase money, and judgment in her favor 
 was made conditional upon such repayment. This seems the more equitable 
 view. 
 
DETENTION OF P0ROHASE MONEY NO COVENANTS FOR TITLE. 623 
 
 for title, does not apply where the conveyance was of lands forming 
 a part of the public domain to which the gi-antor had no title. The 
 reason for this exception is that public lands cannot be made the sub- 
 ject-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} 
 
 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 purchase 
 money, though the conveyance contained covenants for title, and the 
 grantee had not been evicted or disturbed by adverse claimants.^ 
 
 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 
 
 Lamt) V. James, Tex. 485, citing Garber v. Armentrout, 32 Grat. (Va.) 235. 
 Lawson's Rights & Rem. § 3691. 
 
 ' Puokett 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 different from those where this doc- 
 trine 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 administrators act only as commissioners to execute the 
 order of sale. Their covenants in such circumstances cannot furnish a founda- 
 tion upon which an action can be maintained against them personally, nor any 
 protection to the vendee; nor can the vendee be supposed to place any reliance 
 upon such assurances, since the contract itself, from its nature, is intended to 
 convey only the title of the deceased (the sale of the decedent's lands had been 
 ordered on an ex iMrte 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 is absolutely void, and so 
 shown to be by the record of the court. No eviction is, therefore, necessary, 
 since the paramount title of the heirs is as effectually established by the evidence 
 as it could be by the record of eviction." See, as to the necessity of surrender 
 of the premises in the case of a void executory contract, ante, p. 597. 
 
624 MARKETABLE TITLE TO KEAL ESTATE. 
 
 conveyance is rejected by the vendee as being insufficient and not 
 such as he is entitled to receive under the contract.' 
 
 § 269. MERaER 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 wdthheld 
 if the title failed, the jsurchaser, accepting a conveyance without 
 covenants for title, will, in the absence of fraud or mistake, be com- 
 pelled to pay the purchase money. ^ And promises, express or 
 
 ' 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 insufficient 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 oifer the deed in evidence with other facts shomng the title to 
 be defective. 
 
 ^ Rawle Govts. (.5th ed.) § 320. Howes v. Barker, 3 Johns. (N. Y.) 506; 3 Am. 
 Dec. 526, where it was held that this rule prevented the pui'chaser from showing 
 that there was a mistake in the quantity of land conveyed, and from maintaining 
 an action of assumpsit to recover for the deficiency. Followed in Houghtaling 
 V. Lewis, 10 Johns. (N. Y.) 297, and Bull v. Willard, 9 Barb. (IST. Y.) 641, upon 
 similar facts. The presumption of law is, that the acceptance of a deed in pur- 
 suance of articles is satisfaction of all previous covenants, and where the con- 
 veyance contains none of the usual covenants, 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 indemnify the purchaser against incumbrances. Crotzer v. Rus- 
 sell, 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 
 Inconsistent with later Pennsylvania decisions. See Close v. Zcll, 141 Pa. St. 
 390; 21 Atl. Rep. 770, infra, p. 626. Whitemore v. Farrington, 7 Hun (N. Y.), 
 592; Griffith v. Kempshall, 1 Clark Ch. (N. Y.) 571. Earle v. De Witt, 6 Allen 
 (INIass.), 520; Williams v. Hathaway, 19 Pick. (JIass.) 387. Bever v. North, 107 
 Ind. 515; 8 N. E. Rep. 576; Philbrook v. Emswiler, 92 Ind. 590; Ice v. Ball, 102 
 Ind. 42; 1 N. E. Rep. 66. Thompson v. Christian, 28 Ala. 399. Seitzingcr v. 
 Weaver, 1 Rawle (Pa.), 377; Jones v. Wood, 16 Pa. St. 25. Compare Selden v. 
 Williams, 9 Watts (Pa.), 12; Brown v. Morehead, 8 S. & R. (Pa.) 569; Anderson 
 V. Long, 10 S. & R. (Pa.) 55, and Pennsylvania cases cited infra, this chapter, 
 p. 626. In Johnson v. Hathorn, 3 Keyes (N. Y.), 126, it was held that an execu- 
 tory agreement, whether written or oral, is not merged in a subsequent writing 
 by way of partial e.'tecution, unless the latter is accepted in substitution or io 
 
DETENTION OF PURCHASE MONEY NO COVENANTS FOE TITLE. 625 
 
 implied, to give a good title are merged in a conveyance without 
 covenants.' This doctrine has also been applied in exoneration of 
 the pm-chaser. Thus, it has been held that an agreement of the 
 purchaser to erect a building of a certain value on the granted 
 premises, was merged in a conveyance of tJie premises subsequently 
 made, in which such agreement was not mentioned.^ 
 
 The case of Smith v. Chaney' 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 througli defect 
 of title, sought to restrain the collection of the purchase money by 
 
 full performance of the contract. In Coleman v. Hart, 25 Ind. 256, it T\as said 
 that if the agreement was terbal it would he merged in the covenants of the deed; 
 and this upon the familiar principle that a written contract is conclusively pre- 
 sumed to include all contemporaneous agreements between the parties. The rule 
 under consideration, however, obviously depends upon a diflferent principle of 
 wider application, which is thattho conveyance is a second contract of a solemn 
 character, superseding all former contracts relating to the title, whether verbal 
 or in writmg. In Kramer v. Ricke, 70 Iowa, 535; 85 N. W. Rep. 378, there was 
 a conveyance with warranty to the purchaser, and a contemporaneous agreement 
 in writing by the vendor to remove all adverse claims at his own expense. In 
 an action for the purchase money the 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 convey- 
 ance was not raised; the court and the parties seem to have assumed that the 
 agreement was properly admitted in evidence. In a case in which the purchaser 
 took a quit-claim deed of the premises, knowing that there was a defect in the 
 title, and the vendor by a separate writing agreed to perfect the title, but with- 
 out specifying any time therefor, and the purchaser, at the request of the vendor, 
 executed his note to a third person for the purchase 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 cldm was not raised. 
 James v. Hays, 34 Ind. 272. 
 
 ' Clark V. Post, 113 N. Y. 17; 20 N. E. Rep. 573. 
 
 ^ West Broadway Real Est. Co. v. Bayliss, (Md.) 31 Atl. Rep. 443. The questiom 
 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. 
 
 '4Md. Dec. 246. 
 79 
 
626 MARKETABLE TITLE TO EEAL ESTATE. 
 
 injunction, but the court said : " This deed must be understood as 
 taking the place of all previous agreements upon the subject, and as 
 containhig 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 tlie 
 deed." 
 
 The foregoing rule has been greatly niodified in the State of 
 Pennsylvania. It will be seen hereafter that a peculiar doctrine 
 obtains in that State by which a purchaser who has taken a convey- 
 ance without covenants for title in ignorance of any objections to the 
 title is permitted to detain the purchase money upon failure of the 
 title.' Another class of decisions there, having no liecessary con- 
 nection with this doctrine, establish the rule that an agreement by 
 the vendor to remove incumbrances on the premises, or to refund 
 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 covenant 
 which would embrace such agreement ; and that if the title should 
 fail or incumbrances should appear the purchaser may n(jt only 
 detain, but may recover hack the purchase money. Such an agree- 
 ment 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 explained 
 1 ly a contemporaneous parol agreement.^ These decisions seem to be 
 
 1 Post, § 271. 
 
 2 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. Jlr, Justice Green. 
 delivering the opinion of the court, said: " In the second coimt of the plaintifls' 
 statement their cause of action is substantially set out as a parol contract of 
 indemnity against a defective title to certain real estate conveyed to the plaintifEs 
 Ijy the defendant's testator, which was the operative inducement to the plaintiffs 
 to purchase the 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 proceeding to change, alter, modify or reform the 
 deed in question in any respect. It is not alleged or claimed that any covenant 
 
DETKNTIOIT OP PUEOHASE MONEY NO COVENANTS FOR TITLE. 627 
 
 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 pre- 
 vent hardship and effectuate the intent of the parties. It is not 
 always that they can have the advice and assistance of skilled con- 
 veyancers in the execution of tlieir 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 con- 
 tract to indemnify them against loss in case the title failed, would 
 dream it necessary to have the same assurance repeated in the con- 
 veyance. In the eyes of the parties the one instrument is as binding 
 as the other, and the merger of the indemnity in the conveyaTico is, 
 it is believed, in jnost cases, to make for them a contract that they 
 never intended. 
 
 or stipulation was omitted from the deed by fraud, mistake or accident, but the 
 deed just as it is 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 
 expenses incurred in the event that the grantees should not acquire under the 
 deed a good title to the premises sold. The question arises whether such a con- 
 tract 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, pre- 
 cedes and is independent of the deed. It stipulates for indemnity against the 
 consequences of the taking of the title conveyed by the deed. If, notwithstand- 
 ing the deed and the title thereby sought to be conveyed, the grantees subse- 
 quently 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 the grantor the 
 money which he had received from them and which he promised he would 
 refund to them in case the title failed ? This is a question which has been sev- 
 eral times adjudged by this court." The learned judge then cited and reviewed 
 the cases of Drinker v. Byers, 3 Pen. & W. (Pa.) 538; Brown v. Moorhead, 8 S. 
 & R. (Pa.) 569; Frederick v. Campbell, 13 S. & R. (Pa.) 136; Richardson v. 
 Oosser, 36 Pa. St. 335; Cox v. Henry, 33 Pa. St. 18, and Anderson v. Washer- . 
 baugh, 43 Pa. St. 11.5, 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 indetimit}^ 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, 35 Pa. St. 434, in an action upon 
 
628 MARKETABLE TITLE TO EEAL ESTATE. 
 
 § 270. MERGER IN CASES OF FRAUD. Where the vendor has 
 made fraudulent representations respecting the title, the acceptance 
 of a coiiA'eyance 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,^ unless he had notice of 
 tlie fraud when the conveyance was made.^ A contrary view of the 
 law has been taken in one case,^ but that decision Avas afterwards 
 
 a similar bond, given one day after the deed, and although the deed contained a 
 covenant of general warrant}"", and a recovery vs'as 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, 113 Pa. St. 303; 5 Atl. Kep. 208, 
 where the warranty set up was entirely in parol, and preceded the execution of 
 the written agreement for the sale of the land from which this part of the con- 
 tract was omitted. Gordon, J., said; 'That a written agreement may he modi- 
 fled, 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 accident. 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 
 perfectly clear and satisfactory character. But the case is of authority on tlie 
 point that a contract in the nature of guaranty as to the quality of the land con- 
 veyed 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. 
 573; 33 Atl. Rep. 373, 387; Kemp v. Pennsylvania R. Co., 156 Pa. St. 430; Elldn 
 V. Timlin. 151 Pa. St. 491; 35 Atl. Rep. 139. See, also, Witbeck v. Waine, 16 N. 
 T. 535; Bogart v. Burkalter, 1 Den. (N. Y.) 135; Carr v. Roach, 2 Duer (N. Y.), 
 25. Golvin v. Schell, 1 Grant's Gas. (Pa.) 226; Seldeu v. Williams, 9 Watts (Pa.V 9. 
 
 1 Chitty Cont. (lOth Am. ed.) 339. Alvarez v. Brennan, 7 Cal. 503; 78 Am. 
 Dec. 274; Wright v. Carillo, 33 Cal. 604. Gwinther v. Gerding, 8 Head (Tenn.), 
 198. Sargent v. Gutterson, 13 X. H. 473. 
 
 ' Yernol v. Yernol, 68 N. Y. 45. Thweatt v. McLeod, 56 Ala. 375. 
 
 ^ Peabody v. Phelps, 9 Cal. 213, where it was held 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 with 
 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 (Warden V. Fosdick, 13 Johns. [Ky.] 835; 7 Am. Doc. 388; Monell 
 V. Golden, 13 Johns. [N. Y.] 396; 7 Am. Dec. 890; Leonard v. Pitney, 5 Wend. 
 
DETENTION OF PURCHASE MONEY NO COVENANTS FOE TITLE. 629 
 
 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 
 decision of the case.' But if the purchaser, with every opportunity 
 of discovering the fraud of the vendor by examining the records 
 
 [N. Y.] 31; Culver v. Avery, 7 Wend. [N. Y.] 380; 22 Am. Dec. 586; Whitney 
 -V. Allaire, 1 Com. St [N. Y.] 313, Bostwick v. Lewis, 1 Day [Conn.], 250; 2 Am. 
 Dec. 73. Wade v. Thurraan, 2 Bibb [Ky.], 583), continued: "In the execution 
 of a conveyance, all previous representations pending the negotiation for the 
 purchase are merged. The instrument contains the final agreement of the par- 
 ties 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 accept- 
 ance 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, whether he had or had not notice of the fraud at the time 
 the deed was accepted, would seem not to be in harmonj^ 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 con- 
 cealed it from the purchaser, or suppressed the instrument by which the incum- 
 brance was created, or on the face of which it appeared, he is in every such ca.se 
 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 Govt. § 159. In Andrus v. 
 St. Louis Smelting Co., 130 U. S. 643; 9 Sup. Ct. Rep. 645, Field, J., who 
 delivered the opinion in Peabody v. Phelps, supra, when one of the justices of 
 the Supreme Court of the State of California, 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 ii 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 possession which it gave, are regarded, however 
 highly colored, as mere expressions of confidence in his title, 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. 
 
 1 Wright V. Carillo, 22 Cal. 604. The case is also disapproved in Kimball v. 
 Saguin, (Iowa) 53 N. W. Rep. 116. 
 
 * That is, fraud by which the purchaser is induced to accept the conveyance, as distinguished 
 from fraudulent representations as to the title when the contract was made; else the observa- 
 tions of the court would appear to be contradictory. 
 
630 MARKETABLE TITLE TO REAL ESTATE. 
 
 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 he compelled to pay 
 the purchase money and look to his covenants for redress in case he 
 should be thereafter evicted.^ If the matters alleged by the grantee 
 
 I Ante, § 104. Griffith v. Kempshal], Clarke Ch, (K. Y.) 576, the court say- 
 ing: " In this case the sale was at public auction, pursuant to previous notice. 
 It may perhaps he fairly presumed that the company casually collected 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 sold would be given to those who might 
 become purchasers. Upon the faith of this the bids were made. What is the 
 amount of this declaration of the sellers? Unquestionably that the persons 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 assur- 
 ance, 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 accept- 
 ance of the deeds is the completion of the executory contracts made by the bid- 
 ding at the auction, and the terms of that executory contract cannot now be 
 inquired into, unless there was fraud in the representations 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 accept- 
 ance of deeds without inquiry or investigation, guarding themselves by cove- 
 nants from the grantors. They have thought it proper so to do, and execute 
 their mortgages 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 representations; and, in 
 
DETENTION OF PUECIIASE MONEY NO COVENANTS FOE TITLE. 631 
 
 to have been falsely represented to him bj the vendor, are equally 
 open to both parties, and the grantee examines the title, and relies 
 upon the evidences furnished by the public records, and not upon 
 the representation of the vendor, the conti-act will not be rescinded, 
 but the grantee will be left to his remedy upon the covenants, if 
 any.' 
 
 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 i-escission of the contract and to recover back or detain 
 the purchase money.^ 
 
 my opinion, these assurances were given for the purpose of enabling the pur- 
 chasers 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 certain incumbrances; while the second was an action at law to recover 
 damages for the deceit, and the effect of the decision was to drive 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 war- 
 ranty, while in the second the covenant was limited to the acts of the grantor 
 and his heir; so that while the first case merely drives the purchaser to a differ- 
 ent form of redress, the second case not only deprives him of damages for the 
 loss of his bargain («'. e., the value of the premises in excess of the purchase: 
 money), but the premises having been lost through paramount title and not 
 throtigh 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 con- 
 tract and the acceptance of the conveyance m which the purchaser might have 
 examined the title. In the second case it seems that the sale was immediately 
 consummated by a conveyance, so that the purchaser could not have examined 
 the title without deferring the conveyance. 
 
 ' Farnsworth v. Duffner, 142 U. S. 43. 
 
 ''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. Ordinarily, 
 when a vendor accepts a quit-claim deed or a deed with special warranty, the 
 presumption of law is that he acts upon his own judgment and Imowledge of the. 
 
632 MARKETAELBI TITLTC TO REAL ESTATE. 
 
 In a case in which tiie sale was without fraud in the first instance, 
 false representations respecting the title, made by the vendor some 
 time afterwards when a deed is accepted and a security for the pur- 
 chase money given, have been held no ground for rescinding the 
 contract or detaining the purchase money.' It may be doubted 
 whether this decision can l)e reconciled with those which hold that 
 fraud of which the purchaser is ignorant is not merged in a convej'- 
 ance 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 wliich does not, in its entirety, exist in tlie 
 other States. The principal features <if that doctrine ai'e that wher- 
 ever the title of the vendor fails the jmrchaser may detain the pur- 
 chase 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 eipial to the purchase money, though 
 he has not been evicted or disturbed in the possession.' The results 
 of those decisions may be conveniently stated in the following 
 propositions : 
 
 title, and lie 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 con- 
 tract, the pui'chaser 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 sho\\' 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 con- 
 tract had not been executed by a conveyance, hut tlie purchaser had, by reason 
 of the vendor's fraud, agreed to accept ;i quit-claim conveyance. See, also, 
 Wilson V. Higbee, 03 Fed. Rep. 723. Ballon v. Lucas, 59 Iowa, 24; 12 N. W. 
 Hep. 745. Atwood v. Cliapman, 68 Me. 38; 28 Am. Rep. 5. 
 
 1 Kirkland v. Wade, 61 Ga. 478. 
 
 ^nBcaupland v. McKeen, 28 Pa. St. 130; 70 Am. Dec. 115, the court said. 
 Woodward, J., delivering the opinion; " We have gone further in Pennsylvania 
 in relieving purchasers of real estate from payment of purchase money on the 
 ground of defes^'ts and incmnbrances than courts of justice have gone in any 
 other State or country where the common law obtains. All administer not only 
 
DETENTION OF PURCHASE MONEY — NO COVENANTS FOE TITLE. 633 
 
 (1) A purchaser who has received a conveyance of the purchased 
 premises may defend himself against tlie payment of tlie purchase 
 money wlietlier the conveyance be witii or without^ covenants for 
 title, wherever there is a clear failure of title on the part of the 
 
 equitable relief while the contract remains executory, but after it has been exe- 
 cuted 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 pay- 
 ment of the purchase money, however solemn the instrument by which it is 
 secured, if he can show a clear outstanding defect or incumbrance, unless he 
 expressly assumes the risk of it. In England and in most of the States around 
 us the equitable right of the purchaser to detain unpaid purchase money depends 
 on the covenants in his deed. He is not compelled to pay what he could recover 
 back in damages by action at law, but, as his equity springs from breach of a 
 legal covenant, he has no title to relief where there is no covenant, or a covenant 
 but no breach." It must not be supposed from this language that the presence 
 or absence of covenants in the conveyance to the purchaser is of no importance 
 In this State. Under certain circumstances either is of the utmost importance, 
 as will be seen hereafter. 
 
 An excellant summary of ^he Pennsylvania doctrine is contained in the case of 
 Wilson V. Cochran, 46 Pa. St. 230; 86 Am. Dec. 574. It is there said: "The 
 detention of purchase money on account of breaches of the vendor's covenant is 
 a mode of defense that is peculiar to our Pennsylvania jurisprudence, but the 
 principle is well settled with us that where a vendor has conveyed with cove- 
 nants 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 availing himself of such a defense. Whore 
 there is a known defect, but no covenant or fraud, the vendee can avail himself 
 of nothing, being presumed to have been compensated for the risk in the col- 
 lateral advantages of the bargain. But where there is a covenant against a 
 inown 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 main- 
 tain an action for breach of it, an eviction must be laid and proved, not neces- 
 sarily 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 
 
 '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 con- 
 veyance 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. 
 80 
 
634 MAEKETABLE TITLE TO EEAL ESTATE. 
 
 vendor, and whether there has been an eviction or not, unless iie 
 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.' If the defect of title consist of an incumbrance it 
 is not necessary that he shall have discharged it in order to avail 
 himself of the right to detain the purchase money .^ Kor 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 liim for what he has already 
 paid,^ unless the vendor is merely seeking to foreclose a security for 
 the purcliase money, such as a vendor's lien, m which no judgment 
 or decree over against the purchaser in case of a deiiciency is asked. 
 In such a case, if n( )ne of the purchase money has been paid and 
 there has been no breach of any covenant bj^ the vendor, it is no 
 concern of the purchaser wliether the title be good or bad and he 
 
 must restore the possession.* 
 
 * ^ 
 
 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. 
 
 ' 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. 431; 
 Carnahan v. Hall, Add. (Pa.) 137; Gouchcr v. Helmbold, 1 Miles (Pa.), 407; 
 Beaupland v. McKeen, 28 Pa. St. 130; 70 Am. Dec. 115; Lloyd v. Farrell, 48 Pa. 
 St. 73; Youngman v. Linn, 53 Pa. St. 413; Cross v. Noble, 67 Pa. St. 74; 
 Wilson's Appeal, 109 Pa. St. 106. In Seaton v. Barry, 4 TT. & 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 warranty of title is 
 implied in cases of partition and exchange. Ante, p. 331. 
 
 ' Roland v. Miller, 3 W. & S. (Pa.) 390; Poke v. Kelly, 13 S. & R. 165. In 
 this case, however, the contract was e.xeoutory. 
 
 MYilson V. Cochran, 46 Pa. St. 257; 86 Am. Dec. 574; Poyntell v. Spenser, 
 
 6 Pa. St. 256. The same rule exists where the contract is executory. Renshaw 
 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. Congre- 
 gation V. Miles, 4 AVatts (Pa.), 146. 
 
 " Hersey v. Turbett, 37 Pu. St. 424. See, also, Hulflsh v. O'Brien, 5 C. E. Green 
 (N. J.), 230 and ante, p. 435. 
 
DETENTION OF PUBOHASE MONEY NO COVENANTS FOR TITLE. 635 
 
 An exception to the rule that the purchaser may detain the pur- 
 chase money, tliough 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.' 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.^ 
 
 (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 eviction, 
 must not be merely such as creates a doubt as to the title ; it must 
 amount to a clear failure of the title,' and if an incumbrance, it must 
 equal in amount the whole of the unpaid purchase money.'' If the 
 incumbrance goes only to a part of the purchase money, or if the 
 
 'Bailey v. Suyder, 13 S. & R. (Pa.) 160; Dickinson v. Voorhecs, 7 W. & 8. 
 (Pa.) 353; Coughenour v. Stauft, 27 Pa. St. 191; Rodgers v. Olshofesky, 110 Pa. 
 St. 147; 2 Atl. Rep. 44. 
 
 = Farmers' Bank v. Galbraith, 10 Pa. St. 490. 
 
 'Liidwick V. Huntzinger, 5 W. & 8. (Pa.) 58; Brick v. Coster, 4 W. & 8. (Pa.) 
 494; Culler v. Motzer, 13 S. & R. (Pa.) 356; 15 Am. Dec. 604; Pcnu v. Preston, 
 3 Rawle (Pa.), 19; Bradford v. Potts, 9 Pa. 8t. 37; Crawford v. Murphy, 23 Pa. 
 St. 87; Asay v. Lieber, 92 Pa. St. 377. A different rule prevails where the con- 
 tract is still executory. A suit to recover purchase money on articles of agree- 
 ment is in the nature of a bill for specific performance; hence, where the title to 
 the land is doubtful or not marketable, the plainliflf cannot recover. Murray v. 
 Ellis, 112 Pa. St, 492; 3 Atl. Rep. 845; Hertzberg v. Irwin, 11 Norris (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 nppear that the title of the vendor to the land is anywise doubtful, the 
 vendee will not be held bound to pay the purchase money for it (5 Binn. 365), 
 unless it should also appear that he had expressly agreed to do so. Dorsey v. 
 Jackman, 1 S. & R. (Pa.) 42; 7 Am. Deo. 611; Pennsylvania v. Sims, Add. 
 (Pa.) 9." 
 
 * McGinnis v. Noble, 7 W. & S. (Pa.) 454; Dentler v. Brown, 11 Pa. St. 298. 
 lu 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.) 36; 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^ 
 Gaas, 7 Pa. St. 117. 
 
()36 MARKETABLE TITLE TO EEAL ESTATE. 
 
 title fails as to part of the premises onlj, the contract will not be 
 rescinded, but the purchase money will be abated to the extent of 
 the loss or injury suffered.^ 
 
 (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.- 
 
 >Lee V. Dean, 3 Whart. (Pa.) 331; Stehley v. Ir-n-in, 8 Pa. St. 500; White v. 
 Lowery, 27 Pa. St. 255; Beaupland v. McKeen, 23 Pa. St. 134; 70 Am. Dec. 115. 
 
 2 Thomas V. Harris, 43 Pa. St. 281; Murphy v. Richardson, 28 Pa. St. 293; 
 Roland v. Miller, 3 W. & S. (Pa.) 890, semble; Banks v. Ammon, 27 Pa. St. 173, 
 semUe; Wilson v. Cochran, 46 Pa. St. 232, semUe; 86 Am. Dec. 574. In Thomas 
 V. Harris, 43 Pa. St. 241, it was said upon this point: " In the case now before 
 us, the only ground for a presumption that the purchaser agreed to run the risk 
 of any claim of the widow to dower is that he took a deed from her under a 
 decree of the court for the estate of the deceased husband, and also for her own 
 interest, when, it is said, he knew or should have known that she 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 is chargeable, therefore, only with 
 constructive notice of any defect in the title. In such a case there is no reason 
 that a purchaser binds himself to pay the purchase money, no matter what may 
 prove the defects of title. It is only when he has actual knowledge of the defect 
 that he is presumed to waive compliance with the covenant of his vendor. Were 
 it not so, a vendor's deed on record to a third person would not excuse a subse- 
 quent 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 performing 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 incumbrance " was constructive notice 
 to the purchaser equally as effective as actual notice,'' citing Evans v. Jones, 1 
 Yeates (Pa.), 173; Kuhn's Appeal, 3 Barr (Pa.), 264. Both of these, however, were 
 cases arising between the purchaser and a prior purchaser or creditor, and not 
 between purchaser and vendor upon the question of notice as affecting the right 
 to rescind. In Peck v. Jones, 70 Pa. St. 84, where the record disclosed the 
 defect and there was nothing to show that the vendor had actual knowledge 
 thereof, the court said that the purchaser was as much chargeable with notice of 
 the defect from the record as the vendor. 
 
 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 contract ?nd 
 
DETENTION OF PUBCHASE MONEY NO COVENANTS FOR TITLE. 637 
 
 If the pui'chaser 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.* But if he took no covenants, 
 then it becomes important to inquire whether he intended to risk tlie 
 title, and upon this question his knowledge of the existence of the 
 defect or incumbrance is of the utmost importance.^ 
 
 (4) The fact that the purchaser, with knowledge of the defective 
 title, accepts a deed without covenants against the defect, raises a 
 presumption that he assumed the risk of the title,' and was compen- 
 sated for the risk in the collateral advantages of the bargain ; * but 
 such presumption is not conclusive, and may be rebutted by the pur- 
 chaser in an action against him for the purchase money.^ Tliis rule 
 is materially modified by that which follows next. 
 
 recover back payments made in ignorance of the existence of an incumbrance on 
 the property. In such a case it is said that tlie 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. McCuUough, 137 Pa. St. 7; 30' 
 Atl. Rep. 630. 
 
 ' Thomas v. Harris, 43 Pa. St. 241. 
 
 'Cases cited supra, n. 1, p. 634. 
 
 'Ludwick V. Huntzinger, 5 W. & S. (Pa.) 58; Lighty v. Shorb, 3 Pa. 447: 2a 
 Am. Dec. 384; Smith v. Sillyman, 3 Whart. (Pa.) 589; Hart v. Porter, 5 S. & R. 
 (Pa.) 201; Fuhrman v. Loudon, 18 S. & R. (Pa.) 386; 15 Am. Dec, 608; Beidel- 
 man v. Poulk, 5 Watts (Pa.), 308; Ross' Appeal, 9 Pa. St. 491. 
 
 * Lighty V. Shorb, 3 Pa. 452; 34 Am. Dec. 334; Youngman v. Linn, 52 Pa. St. 
 413. 
 
 'Rawle Govts. § 844. Thomas v. Harris, 43 Pa. St. 231; Drinker v. Byars, 2 
 Pa. 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 purchaser took from the 
 vendor an agreement to save him harmless in case any adverse title should be 
 successfully maintained, and then accepted a deed witliout 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. Rawle 
 observes, " could not have been made if the purchaser's notice and the absence 
 of a covenant were deemed conclusive evidence that he was to run the risk of 
 the title, " and Mr. Rawle's observation is fully sustained by the case of Smith v. 
 Chaney, 4 Md. Ch. 246, where, under precisely similar circumstances, the pur- 
 chaser was denied relief, the court saying that the agreement for indemnity was 
 merged in the conveyance without covenants. 
 
638 MABKETABLE TITLE TO EEAL ESTATE. 
 
 (5) The acceptance of a deed without covenants, when the par- 
 chaser has notice of a pecioniary incumhrance on the property, 
 which can be discharged out of the purchase money, does not raise a 
 presumption tliat the purchaser assumed the risk of the title ; that 
 is, the payment of the incumbrance in addition to the purchase 
 money.^ 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 rulei does not 
 apply where the purchaser secures the purchase money by the execu- 
 tion of a written obligation to pay the same after he receives notice 
 of the incumbrance.^ The exception would seem practically to 
 destroy the rule, for it is but seldom that the vendor delivers a con- 
 veyance of the property until he has received a written obligation of 
 some liind to pay the purchase money. 
 
 If the purchaser has notice of an incumbrance or defect, and 
 takes a deed with a covenant wliich 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.^ 
 
 ' Wolbert v. Lucas, 10 Pa. St. 73; 49 Am. Dec, 578. 
 
 'Lukens v. Jones, 4 Phila. (Pa.) 18, distinguishing Wolbert v. Lucas, 10 Pa. 
 St. 73; 49 Am. Dec. 578. This was not a decision of a court of last resort, and 
 possibly may not be recognized in Pennsylvania as of binding authority. The 
 report does not show whether there was a conveyance to the purchaser or not. 
 Presumably there was, for otherwise the case would have been more clearly dis- 
 tinguishable from Wolbert v. Lucas, supra, where there was a conveyance with- 
 out a covenant embracing the incumbrance. 
 
 ^Lighty V. Shorb, 3 Pa. 447; 34 Am. Dec, 334; Fuhrman v. Loudon, 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; .luvenal v. Jackson, 14 Pa. St. 519; Kerr v. Kitchen, 17 Pa. 
 St. 438; 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. 428 the 
 purchaser, under a conveyance with a covenant against incumbrances, resisted 
 the paj'ment of the purchase money on the ground that the premises were trav- 
 ersed 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 subject to the easement; that the physical con- 
 dition 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 
 
DETENTION OF PDECHASE HONEYING COVENANTS FOR TITLE. 639 
 
 In respect to the right to recover back the purchase money the 
 rule in Pennsylvania is the same as that which generally exists else- 
 where, namely, that if the purchaser has failed to protect himself 
 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.' If he has taken such cove- 
 plaintiff would be entitled to recover the purchase money. This decision was 
 afBrmed 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 decis- 
 ions 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 para- 
 mount right of way was a breach of the covenant of warranty, when the pur- 
 chaser had notice of it, yet, that, nevertheless, this would not constitute an evic- 
 tion when the purchaser had such notice; but this is hardly the correct manner of 
 stating the proposition, for in both cases he is equally evicted, and none the less 
 so by reason of his knowledge; but in the latter instance he is not allowed to 
 detain the purchase money for the reason that the possible assertion of the para- 
 mount 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 case the purchaser cannot detain the purchase money even though 
 there has been no eviction. It is to be observed that both of the foregoing cases 
 were those in which relief was claimed on account of a physical incumbrance. 
 There would seem to be no doubt as to the right of the purchaser to protect him- 
 self against a known pecuniary incumbrance, and to detain the purchase money 
 in case of an eviction. Rawle Govts. § 347, et seq. 
 
 A purchaser with general warranty is chargeable with notice of an incumbrance 
 caused by a pubhc highway through the purchased premises, and it will be con- 
 clusively presumed that he estimated the disadvantages to the premises thence 
 ensuing in adjusting the purchase price. But if the incumbrance consist of a 
 jjrivate 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 pur- 
 chased without actual knowledge of the easement. Wilson v. Cochran, 48 Pa. 
 St. 107; 89 Am. Dec. 574; Eby v. Elder, 133 Fa. St. 343; 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 applj' 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. &E. (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. 
 
640 MARKETABLE TITLE TO EEAL ESTATE. 
 
 nants and they liave been broken, he cannot recover back the pur- 
 chase money eo nomine, by action of assumpsit, but must resort to 
 his covenants.' 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.^ 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 subseqiiently accepted by 
 the vendee which contains only a covenant of special warranty.^ 
 The Pennsylvania equitable doctrine will not justify the purchaser 
 
 " To adopt a cant expression, 'the funeral has passed by, the dead cannot be 
 resuscitated.' But in my sense of the Pennsj-lvani.a system of law, there is a 
 loons panitentim until the money is paid. Something remains iii fsri, and the 
 plain dictates of common sense and common honesty ijoint out the correct path 
 to be pursued." It was probably this vigorous language that led to the distinc- 
 tion 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 Keg. (N. S.) 356, 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- 
 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 Babcockv. 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 pur- 
 chaser referable to entirely different principles from those upon which he is per- 
 mitted to detain the purchase money in Pennsylvania. See Rawle's Govts, (oth 
 ed., 1887), §§ 335, 851, where the right of the purchaser 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. Camp- 
 bell, 13 S. & R. (Pa.) 136; Boar v. McCormick. 1 S. & R. (Pa.) 166. 
 
 ' Rawle Govts. (5th ed.) pp. 554, 576, n. 
 
 « Ghristy v. Reynolds, 16 8. & R. (Pa.) 258; Ives v. Niles, 5 Watts (Pa.), 823; 
 Poyntell v, Spencer, 6 Pa. St. 257; Wilson's Appeal, 109 Pa. St. 606. 
 
 ' Close V. Zell, 141 Pa. St. 390; 21 Atl. Rep. 770, citing Drinker v. Byers, 3 
 Pen. & W. (Pa.) 528; Richardson v. Gosser, 26 Pa. St. 835; Cox v. Henry, 32 
 Pa. St. 18. The purchaser having been induced to accept the conveyance in 
 consideration of such agreement, tlie rule against the admission of parol evidence 
 to alter a written contract does not apply in such case. Walker v. France, 113 
 Pa. St. 203; 5 Atl. Rep. 208. 
 
DETENTION OF PURCHASE MONEY — NO COTENANTS FOE TITLE. 641 
 
 in detaining the purchase money where he is disturbed in the pos- 
 session by a mere wrongdoer.^ Nor does it apply in a case in which 
 the purchase was made at a sale under a decree of court,^ or a sale 
 by a sherifE or otlier officer.^ 
 
 ' Spear v. Allison, 20 Pa. St. 200. 
 
 « Pox 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.), 498, 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 prin- 
 ciple, which was first ruled in Steinhauer v. Witman, 1 8. & R. (Pa.) 438, has 
 been since affirmed in Hart v. Porter, 5 S. & E. (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 been understood, either by 
 the profession or the public to be applicable to judicial sales. In Friedly v. 
 Scheetz, 9 S. & R. (Pa.) 156; 11 Am. Dec. 691, it was ruled that a sheriff's sale 
 cannot be objected to by the purchaser, merely on the ground of defect of title, 
 but that in all such cases it is binding except where there be fraud or misdescrip- 
 tion 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 pub- 
 licly 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 Stein- 
 hauer V. Witman does not extend to judicial sales, nor has it been contended by 
 any one that the usage asserted and maintained by Justice Ybatbs 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 camat emptor." 
 
 '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 jjlaintifi: than as a defendant; thus, the fact that he 
 was aware of the defect of title at the time he took a conveyance with covenants 
 embracing the defect will not affect his right to recover on the covenant. This 
 is the rule everywhere. But if with knowledge of the defect he took no 
 covenant he cannot, as a general rule, detain the purchase money. (2) Under 
 other circumstances he has greater rights as a defendant than as plaintiff; thus, 
 as we have 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 
 81 
 
642 MAEKETABLE TITLE TO EEAL ESTATE. 
 
 Eules in respect to the detention of the purchase money, in many 
 respects similar to those which prevail in the State of Pennsylvania, 
 exist in the States of Texas and South Carolina, and may be seen in 
 a foregoing part of this work.' Some apology is due the student 
 for considering at such length rules relating to the detention of the 
 purchase money applicable only in particular localities. The rules 
 in question mark the greatest innovations and inroads upon the 
 doctrines of the common law in that regard that have been made in 
 America, and it has been deemed expedient to set them forth with 
 considerable particularity. 
 
 ■when the deed Tvas made, while under the same circumstances he could 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 pur- 
 chase money, nor recover it back as damages, unless he had been actually or 
 constructively evicted. (3) In Wilson v. Cochran, 46 Pa. St. 230, it is said that 
 the vendee may detain the purchase money to the extent which he would be 
 entitled to recover damages upon his covenants, and that he is not obliged to 
 restore possession to his vendor before or at the time of availing himself of such 
 defense, from which it is to be inferred that he may make such defense 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 perceive 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 defense 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 observa- 
 tions 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 main- 
 tain 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 cmoat emptor, and decrees the reimbursement of the purchaser 
 wherever he loses the estate through defective title, the risks of which he did not 
 accept, without regard to the existence or non-existence of covenants for title on 
 the part of the vendor. 
 ' Ante, pp. 449, 451. 
 
CHAPTEE XXYIII. 
 
 OF RESTITUTION OP THE PURCHASE MONEY WHERE THERE ARE 
 COVENANTS FOR TITLE. 
 
 GENERAL RULE. § 272. 
 EXCEPTIONS. § 273. 
 
 § 272. GENERAL RtTLE. We have seen that after a contract for 
 the sale of lauds has been executed by a conveyance to. the pur- 
 chaser, he may, for the avoidance of circuity of action, detain, the 
 purchase money in all cases where there has been such a breach of 
 tlie covenants for title, as would entitle him to recover substantial 
 damages against the grantor. This, however, is solely for the avoid- 
 ance 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 YI. After a contract for the sale of lands has ieen 
 executed l>y a conveyance, with covenants for title, the purchaser 
 cannot, though he has ieen evicted hy one claiming under a paror 
 Tnount title, or has discharged an incumbrance on the estate, recover 
 hach the purchase money eo nomine, either hy suit in equity, or iy 
 action against the vendor for money had and received to the plain- 
 tijfs use. His remedy is upon the covenants for title} 
 
 ' 1 Sugd. Vend. (8th Am. ed.); Rawle Govt. (5th ed) § 326. Tillotson v. 
 Grapes, 4 N. H. 448. Banks v. Walker, 2 Sandf. Ch, (N. Y.) 348; Hunt v. 
 Arindon, 4 Hill (N. Y.), 345; 40 Am. Dec, 283; Miller v. Watson, 5 Cow. (N. Y.) 
 19?: 4 Wend. (N. Y.) 267; Moyer v. Shoemaker, 5 Barb. (N. Y. 8. C.) 319. 
 Wilty V. Hightower, 6 Sm. & M. (Miss.) 345. Maner v. Washington, 3 Strobh. 
 Eq. (S. C.) 171. Major v. Brush, 7 Ind. 232. Davenport v. Whisler, 46 Iowa, 
 387; Wilson v. Irish, 62 Iowa, 260; 17 N. W. Rep. 511. Templeton v. Jackson. 
 13 M< 78. Renter 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.) 532, 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 decreed to the covenantee. There was a constructive eviction 
 here and the plaintiff miglit have recovered at law on his covenants, but relief 
 in equity seems to have been granted on the ground of fraud by the vendor. In 
 Fitzpatrick v. Hoffman, (Mich.) 63 N. W. Rep. 349, it was held that a grantee 
 with warranty who had been compelled to satisfy to an adverse claimant the 
 
g44 MARKETABLE TITLE TO EBAL ESTATE. 
 
 All the authorities agree upon this proposition. No case can be 
 found in which, after a breach of any of the covenants for title, the 
 covenantee has been permitted to recover back the purchase money, 
 eo nomine, in an action for money had and received to the plaintifE's 
 use. But this rule is comparatively of little importance to the pur- 
 chaser where an actual breach of the covenants has occurred, for, in 
 an action on the covenant, the damages are measured by the pur- 
 chase money, so that, practically, the purchase money is recovered 
 back in this form.^ 
 
 If the purchaser cannot recover back the purchase money, eo 
 nomine, after a breach of covenant has occurred, a fortiori he can- 
 not recover it back hefore the happening of the breach. As respects 
 the covenant of seisin, which is broken as soon as made if the cove- 
 nantor 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.^ But there seems to be no case in which the covenantee 
 has been suffered to recover back the purchase money upon like 
 conditions.^ A different rule prevails at the civil law. If the pur- 
 value of timber cut from the warranted lands, might recover the amount so 
 expended in assumpsit against the grantor. 
 
 ' It is frequently said, as in Kerr v. Kitchen, 7 Pa. St. 486, that a purchaser 
 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 it is borne in mind that the damages for a breach of warranty are measured 
 by the consideration money. Strictly speaking he recovers damages for the 
 fraud or breach of warranty and not the consideration money eo nomine. 
 
 * Ante, ch. 26. 
 
 ° Mr. Rawle says in this connection: " It would at first sight seem immaterial 
 whether the position of the purchaser were that of a defendant resisting pay- 
 ment 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 pur- 
 chase money on the ground of a defect of title, he should be prevented from 
 recovering back that for which he has received no value. But the position of a 
 purchaser of real estate as a plaintiff, must at law necessarily be confined to a 
 suit upon the covenants in his deed, which suit (though the same end may be 
 obtained by means of it) depends to some extent upon different principles and 
 machinery from an action which seeks to rescind the contract and recover back 
 its consideration. Hence, it may be safely said that, at law, a purchaser has no 
 right, after the execution of his deed, to recover back his consideration money 
 on the ground of a defect or failure of title. His remedy in such case is by an 
 
EESTITUTION OF PtTECHASE MONEY — COVENANTS FOE TITLE. 645 
 
 cHaser does not get sucli a title as his contract requires, he can, irre- 
 spective of the existence of covenants for title, recover back the 
 purchase money,' upon condition only that he restore the premises 
 to the vendor.^ Nor in such a case can he recover upon a contem- 
 poraneous 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 rnust seek his remedy on the cove- 
 nants therein contained, if any.^ 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.* 
 
 § 273. EXCEPTIONS. The rule that the purchaser cannot recover 
 back the purchase money after the contract has been executed by a 
 
 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 his covenants in his deed,' yet, as has been 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." 
 
 ' Bates V, Delavan, 5 Paige Ch. (N. Y.) 306, where it was said by Wai-worth, 
 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 essentials of the agree- 
 ment, although both parties were ignorant of the defect which rendered the 
 property sold unavailable to the purchaser for the purposes for which it was 
 intended. * * * i agree, however, with the learned commentator on Ameri- 
 can Law (3 Kent Com. [2d ed.] 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 consummated hia 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, tliough he has taken a conveyance with 
 warranty. Boyer v. Amet, 41 La. Ann. 725. 
 
 « Brown v. Reeves, 19 Mart. (La.) 235. 3 Kent Com. (11th ed.) 631 (473). 
 
 » Earle v. De Witt, 6 Allen (Mass.), 583. 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, 33 111. 23; Beebe v. Swartwout, 3 Gil. (111.) 168. 
 
646 MAEKETABLB TITLE TO EEAL ESTATE. 
 
 conveyance with covenants for title does not apply where by mistake 
 there is no such land as the deed purports to convey,' nor where the 
 deed is so defective that it is absolutely inoperative as a conveyance.' 
 
 ' D'Utricht v. Melchor, 1 Dall. (Pa.) 438. 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 pleaded 
 in bar, if covenant should afterwards be brought. But the court held that 
 assumpsit would lie. 
 
 ' ToUensen 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 description of the 
 premises, which was "the northeast quarter of the west half, containing twenty- 
 acres," without identifying the " west half." 
 
CHAPTEE XXIX. 
 
 OF DETENTION OR RESTITUTION OF THE PURCHASE-MONEY IN 
 CASES OF FRAUD. 
 
 GENERAL RULE. § 274. 
 EXECUTED CONTRACT. § 375. 
 WAIVER OF FRAUD. § 376. 
 
 § 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.' 
 
 Proposition VIT. If the vendor fraudulently indticed the pur- 
 chaser to accept a had title, the latter may, at law, recover hack or 
 detain the purchase money as damages, whether the contract is execu- 
 tory or has heen executed; and, if executed, 'whether the conveyance 
 was with or without covenants for title; and, if with covenants for 
 tithj whether those covenants have or have not heen hroTcen? 
 
 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 intent 
 to rescind, and has offered to restore the premises to the vendor.' 
 The purchaser, however, is not bound to rescind in order 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 
 
 ' Ante, ch. 11. See, also, post, ch. 34. ' 
 
 "^ 3 Sudg. Vend. (8th Am. ed.) chs. 13 and 15; 3 Warvelle Vend. 917; Rawle 
 Govts. (5th ed.) §§ 167, 323. Post, ch. 35. Ante, ch. 11. Edmunds v. McLeaj', 
 Coop. 308. Young V. Harris, 2 Ala. 111. Digga 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, 3 Rich. Eq. (8. C.) 338. Lamb v. Smith, 
 6Rand. (Va.)553. 
 
 3 Pearson v. Chapin, 44 Pa. St. 9; Babcock v. Case, 61 Pa. St. 427; 10 Am. 
 Dec. 654; Morrow v. Rees, 69 Pa. St. 368. 
 
648 MAEKETABLE TITLE TO EEAL ESTATE. 
 
 the vendor.* In most cases, this is the better course for him to 
 pursue, where the purchase money has been fully paid, because m 
 such an action his recovery is not limited to the consideration 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,^ 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 pur- 
 chase money, but no damages, because the remedy at law in that 
 respect is complete.' There can be no question of the right of the 
 purchaser tc recover back * or to detain ^ 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 objections to the title, or where the vendor 
 has the right to remove them." 
 
 'Ante, p. 233. Gwinther v. Gerding, 3 Head (Tenn.), 198. "S^Tiite 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 resort 
 to his remedy at law for damages, but may proceed in equity to rescind the 
 contract. Bodley v. Bosley, 1 Barb. Oh, (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 con- 
 current with the right of the vendee to stay the collection in a court of equity 
 till abatement has been made." Kelly v. Riley, 23 W. Va. 250. 
 
 'Ante, "Merger," ch. 27, p. 270. 
 
 8 3 Warvelle Vend. 955. Robertson v. Hogshead, 3 Leigh (Va.), 723 (667). 
 Bodley v. Bodley, 1 Sandf. Oh. (N. Y.) 125. 
 
 * Rawle Govts. (5th ed.) §§ 319, et seq.; Dart's V. & P. 613; 3 Warvelle Vend. 
 834, 851, 952. Wade v. Thurman, 2 Bibb (Ky.), 583, citing Co. Litt. 384a, But- 
 ler's note, and Com. Dig. 236. Lyon v. Anable, 4 Conn. 350. 
 
 ° Authorities cited, supra. Kerr on Fraud (Am. ed.), 330. Green v. Chandler, 
 35 Tex, 148. 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. 
 
 «Ante, p. 193. 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 
 
DETENTION OF PUE0HA8E MONET IN CASES OF FEAtlD. 649 
 
 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 rem- 
 edy at law for damages in an action of deceit,' and in equity, for a 
 rescission of the contract and return of the purchase money.^ At 
 common law neither failure of the consideration,' nor fraud,'' 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.^ 
 
 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 purchased 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 defense against the plaintiff's claim for 
 a personal judgment against the purchaser. 
 
 ' Ante, ch. 3. 
 
 •' As in Smith v. Robertson, 33 Ala. 313. 
 
 ' Vrooman v. Phelps, 3 Johns. (N. Y.) 178. 1 Waite's Actions & Defenses, 701. 
 
 * Wyche v. Macklin, 3 Eand. (Va.) 436. Franchot v. Leach, 3 Cow. (N. Y.) 
 606. Rogers v. Colt, 1 Zab. (N. J. L.) 704. Holly v. Younge, 37 Ala. 203. 
 
 ' 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 the 
 only fraud which can be shown at law to avoid a deed, or the effect of its cove- 
 nants, is fraud in the execution, as where it was untruly read, or where there has 
 been a substitution of one instrument for another, and matters 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 decis- 
 ions in which that rule was applied. But that rule has, as we have seen (ante, 
 p. 433), 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 plea fraud 
 in the procurement or failure of the consideration, of the contract, and is no 
 82 
 
650 MARKETABLE TITLE TO EEAL ESTATE. 
 
 § 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 ' or without covenants ^ for title. And in a like case he 
 may detain the purchase money, if unpaid,' though there were no 
 
 longer driven to equity for relief. See, also, Rawle Govts, (otli ed.) §§ 335, 332, 
 n. 4: 1 Waite's Actions & Defenses, 701. 
 
 ' Moreland v. Atcliison, 19 Tex. 303. The cases illustrating this rule are com- 
 paratively few, because resort is nearly always had to equity to rescind the con- 
 tract, cancel the conveyance and decree a restitution of the purchase money 
 where the grantor has been guilt}' 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. 613, 614; Rawle Govts. (5th ed.) § 323; 2 Warvelle Vend. 917; 
 Kerr on Fraud (Am. ed.), 327. Pearsoll v. Ghapin, 44 Pa. St. 9. Moreland v. 
 Atchinson, 19 Tex. 303. Tucker v. Gordon. 4 Des. (S. G.) 53. A purchaser who 
 stipulates 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, 36 Me. 317, 
 it was held that the purchase money could only be recovered back from a party 
 to the fraud. There the alleged fraudulent representations 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 original grantor who had fraudulently repre- 
 sented the title to be good. See, also, Lejeune v. Herbert, 4 La. Ann. 59. 
 
 *See authorities cited, supra. Whitney v. Allaire, 1 Gomst. (N. T.) 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 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 contract, 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. Wiraan, 17 Wend. (N. Y.) 193; Wardell v. Fosdick, 13 
 Johns. (N. Y.) 325; 7 Am. Dec. 388. 
 
DETENTION OF PUECHASE MONEY IN CASES OF FRAUD. 651 
 
 covenants.' The law does not require a purchacer to take covenants 
 as a protection against fraud.^ If facts aflEecting tlie 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.' 
 
 Fraud by the grantor vitiates the contract so far as he is con- 
 cerned, and he can claim no rights under it. Hence, it follows that 
 the purchaser may, v^here the conveyance contains covenants for 
 title, in case of fraud, detain the purchase money, whether the cove- 
 nants have or have not been broken.^ 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 dur- 
 ing that period, he may not have his title impeached.^ Where the 
 contract is rescinded for defect of title concealed by the vendor, the 
 purchaser will be entitled to a decree for the repayment of the pur- 
 chase money, with costs, and all expenses to which he had been put 
 relative to the sale, and for repairs during the time he had 
 possession.* 
 
 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, indeed, 
 because there is a remedy over on the covenants if the title fail, but 
 because a court of law cannot do complete justice between tlie par- 
 ties by placing them in statu quo, and that the remedy of the cove- 
 nantee in such case is in equity.'' It may be doubted whether this 
 doctrine exists to any great extent in the United States, in view of 
 
 ' See. authorities cited, supra. 1 Bigelow on Fraud, 415; Rawle Govts. (5th 
 ed.) § 322. Diggs v. Kirby, 40 Ark. 420. Tuclier v. Gordon, 4 Des. (S. C.) 33. 
 
 » Walsh V. Hall, 66 N. C. 233. 
 
 ^Farrell v. Lloyd, 69 Pa. St. 239, 248; Moyd v. Farrell, 48 Pa. St. 73. 
 
 * See authorities cited, supra. This proposition (in the form of an exception 
 to the general rule that a purchaser holding under a deed with covenants cannot 
 detain the pxirchase 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; 3 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. Gilpin v. Smith, 11 Sm. & M. (Miss.) 
 109. 
 
 '1 Sugd. Vend. (14th ed.) 247; 3 Warv. Vend. 844. 
 
 « 1 Sugd. Vend. (8th Am. ed.) 375 (246). 
 
 ' CuUum V. Branch Bank, 4 Ala. 35; 37 Am. Dec. 725; Stark v. Hill, 6 Ala. 
 785; Patton v. England, 15 Ala. 71. 
 
652 MARKETABLE TITLE TO EEAL ESTATE. 
 
 generally prevalent legislation admitting equitable 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.^ 
 
 A statement made in good faith, false but not fraudulent, will not 
 entitle the j^urchaser 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.^ What conduct or 
 representations on the part of the vendor amount to fraud will be 
 found elsewhere considered in this work.^ 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 prac- 
 ticing the deceit. Thus, a note brokei- was compelled to refund to 
 a mortgagee money loaned on the security of the mortgage, he 
 having falsely represented that there were no prior incumbrances 
 on the property.* 
 
 § 276. -WAIVER IN CASES OF FRAUD. Of course, if the pur- 
 chaser accept a conveyance with knowledge of the fraud, he waives 
 all right to rescind the contract because of the fraud, and must look 
 to his covenants for redress.^ And when the fraud comes to his 
 knowledge after the acceptance of a conveyance, he must promptly 
 exercise his right to rescind the contract.' It has been held in 
 
 ' Allen V. Hopson, 1 Preem. Gh. (Miss.) 376. 
 
 ' 2 Sugd. Vend. (Sth Am. ed.) 553. Early v. Garrett, 4 Man. & Ry. 687. 
 
 • Ante, p. 233. 
 
 "Turnbull v. Gadsden, 2 Strobli. Eq. (S. C.) 14. 
 
 ^ 3 Warvelle Vend. 919. Ante, p. 638. 
 
 «The case Lockrldge v. Foster, 4 Scam. (111.) 570, affords a good illustration of 
 this rule. There the covenantee had taken possession of the premises with 
 knowledge of the fraud, and the court, in denying him relief, said: " Under the 
 circumstances, if the complainant had resorted to equity in proper time, and it 
 had appeared that the vendor or his legal representatives were not in a situation 
 to perfect the title, a rescission of the contract might have been obtained. But 
 on discovering the fraud, he was at liberty to consider the contract at an end, 
 and take the necessary steps to procure its rescission or to confirm it, and rely on 
 his covenants of warranty to make good the failure of title. This was a privilege 
 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 conclu- 
 sively that he elected to confirm the contract. From his own showing, he dis- 
 covered the fraud in the fall of 1837, at the time he took possession of the land 
 
DETENTION OF PTJECHASB MONEY IN CASES OF FEAUD. 653 
 
 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 pur- 
 chaser's remedy is upon the covenants, if any.' The better opinion, 
 however, seems to be that only matters as to which the purchaser 
 was informed can be regarded as merged in the deed, and that if he 
 were ignorant of the fraud which would have avoided the contract, 
 he loses none of his rights by accepting the deed.^ Indeed, it may 
 
 before he made any improvements on it, and while a great portion of the pur- 
 chase 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 com- 
 plaint and interposes no defense, but permits judgment 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 confirma- 
 tion and acquiescence, and five years subsequent to the discovery of the fraud, 
 he comes into a court of equity and asks that the contract may be annulled. "We 
 have no hesitation in saying that he is effectually concluded by his own positive 
 acts from attaining this object." , 
 
 iPeabody v. Phelps, 9 Cal. 314. Leonard v. Pitney, 5 Wend. (N. Y.) 30. 
 See, also, Peay v. Wright, 23 Ark. 198. The old English cases of Roswell v. 
 Vaughn, 1 Cro. James, 196, 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 principally 
 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 recover damages for deceit 
 respecting the title was questioned by Bkonson, J., dissenting, who said, "In 
 the usual course of business men insert covenants in their conveyances of real 
 estate where it is intended that the vendor shall answer for the goodness of the 
 title; and it is easy to see that bad consequences 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 bargain. * * * 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 
 a,T, settled by our decision." It may be doubted whether this query would be 
 mide 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, § 369. 3 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 
 
654 MARKETABLE TITLE TO EEAL ESTATE. 
 
 be doubted whetber in sucb a case tbe purchaser would be held to 
 have waived his right to recover damages for the fraud. The 
 acceptance of a conveyance is an election to afBrm the contract, but 
 it has been held that the purchaser does not waive his right to 
 damages by aiBrming the contract after discovering the fraud. ^ 
 
 title. As to cases in which there has been fraud as to the title and also a breach 
 of the covenants, Mr. Warvelle pertinently observes, "The liability of the 
 offending party is totally distinct in either case. In the one it arises ex contractu, 
 in the other e.v delicto; 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. Colden, 13 Johns. (N. Y.) 896; 
 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 cotirt said : " What- 
 ever is said or done in good faith in a treaty for a sale and purchase is merged in 
 the purchase itself when cons\immated (by conveyance), and you cannot over- 
 haul it whether tbe representations were true or false; but if they were known to 
 be false when made, and have produced damage to the opposite party, the sub- 
 sequent consummation of the agreement cannot shield the defendant." Wardell 
 v. Fosdick, 13 Johns. (N. Y.) 325; 7 Am. Dec. 383, where the vendor sold land 
 which had no existence. That fact, however, was considered immaterial in 
 Ward V. Wiman, 17 Wend. (N. Y.) 193, 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 assumpsit to recover back the purchase money, but must first 
 reconvey, or offer to reeonvey, the premises. See, also, Bowden v. Achor, (Gra.) 
 32 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 owued 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 necessary to deny that where a vendee 
 or a lessee takes or holds possession after he has discovered the fraud of his ven- 
 dor 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 
 
DETENTION OF PURCHASE MONEY IN CASES OF FRAUD. 655 
 
 True, ill such a case, the purchaser could not rescind the contract, 
 but obviouslj, 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 cove- 
 nants, 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 bar- 
 gain, 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. 
 
 the jury might well have been instructed in the present case, that Allaire had 
 made the lease good by election; that he had waived the right to consider it a 
 nullity. That, however, is a very different matter from a waiver of the cause of 
 action or recoupment. When a man is drawn into a contract of sale or demise by 
 fraud, a right of action attaches immediately, as much so as if trespass had been 
 committed against him; and though he may affirm the transfer of interest and 
 take the property, yet waiver is no more predicable of the cause of action, than 
 where a man receives a delivery of goods that have been tortiously taken from 
 him. The vendor or lessor was a wrongdoer when he committed the fraud, and 
 no act of the injured party short of a release or satisfaction will bar the remedy, 
 though it may mitigate the amount of damages." See, also, 1 Sugd. Vend. 
 (14th ed.) 251, where it is said: " Although in equity a party may be entitled to 
 get rid of a contract founded on fraudulent representations, still cases might 
 occur where a purchaser might recover damages at law for a false representa- 
 tion, 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 sought at law." 
 
OF EESCISSION BY PROCEEDINGS IN EQUITY. 
 Where the Conteact is Executory. 
 
 CHAPTER XXX. 
 
 OF THE SUIT FOR RESCISSION PROPER. 
 
 GENERAL PRINCIPLES. § 377. 
 
 DEFENSES TO SUITS FOR SPECIFIC PERFORMANCE. § 378. 
 
 PLACING THE VENDOR IN STATU ftUO. § 379. 
 
 INTEREST, RENTS AND PROFITS. IMPROVEMENTS. § 280. 
 
 PLEADING. § 281. 
 
 PARTIES. § 283. 
 
 § 2Y7. GENERAL PRINCIPLES. On failure of the title the 
 purchaser, instead of taking such steps at law as amount to a 
 rescission of the contract, such as bringing an action to recover back 
 the purchase money, or resisting proceedings by the vendor to 
 collect the same, may, while the contract is executory, resort to a 
 court of equity in the first instance and ask that the contract be 
 formally rescinded. In such case the court, having before it all 
 parties in interest, may, if it appear that the complainant is entitled 
 to relief, enter a decree rescinding the contract and adjusting the 
 rights of the parties. And the purchaser may, in any proceeding 
 by the vendor to enforce specific performance of the contract, show 
 that the title has failed or is not such as the law will require him to 
 accept. The fact that the vendor honestly believed his title to be 
 good is no ground for refusing rescission.^ The jurisdiction of 
 equity for the rescission of executed contracts is limited, as will be 
 seen, chiefly to cases where the contract was procured through fraud 
 or mistake ; but where the contract is execiitory, 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 contract,^ 
 
 ' Boyce v. Grundy, 3 Pet. (U. S.) 210. 
 
 ' Smith V. Robertson, 23 Ala. 817, where it was said that though there may he 
 no actual fraud iu making a contract, a total inability in one party to fulfill it 
 discharges the other, and a court of equity will annul a contract which the 
 defendant has failed to perform or cannot perform. Citing Bullock v. Beemiss, 
 1 A. K. Marsh. (Ky.) 434; Skillern v. May, 4 Cranch (U. S.), 137. But see Parks 
 T. Brooks, 16 Ala. 539, where rescission was refused a purchaser who had taken 
 
OF THE SUIT FOE RESCISSION PEOPEK. 657 
 
 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 co take 
 such title as the vendor can make ; or unless he be no longer able 
 to place the vendor in statxh 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 \,he 
 widow.' 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 beea discovered by the exer- 
 cise of ordinary diligence.^ 
 
 It has been held that the right of the purchaser to rescind an 
 executory contract on failure of the title is not dependent on his right 
 to maintain an action for breach of the contract, and that he vahj 
 rescind where he cannot maintain that action. Thus, where the 
 purchaser, knowing that the vendor could not convej' a clear title, 
 made a sham offer of performance and tender of the balance of the 
 purchase money, it was held that lie could not recover damages for 
 a breach of the contract, but that he was entitled to rescind the con- 
 tract and recover back what he had already paid.^ In an early 
 American case it seems to have been held that want of title in the 
 vendor was no ground for rescinding an executory contract for the 
 sale of lands, the purchaser having an adequate remedy at law to> 
 recover back the purchase money or to recover damages for breach 
 of the contract.* This case does not appear to have been followed 
 
 a bond for titles anii could not show that the obligor was insolvent. As a 
 matter of fact suits in equity by the purchaser for rescission where the contract 
 is executory are comparatively infrequent. Usually the onlj"- relief he claims is 
 the return of the purchase money, and this may be obtained, as a general rule, 
 more quickly and with less expense in the action for money had and received to 
 the purchaser's use. See ante, ch. 34. 
 
 ' 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. 
 
 "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 
 S3 
 
658 MARKETABLE TITLE TO EEAL ESTATE. 
 
 in America, and its authority may well be douLted. Courts of law- 
 have, under tlie 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 eases the remedy in equity is concurrent 
 -with that at law.' What constitutes fraud in the vendor has been 
 elsewhere considered.^ The fact that the agreement has been 
 reduced to writing will not prevent the jjurchaser from showing 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. ^ 
 
 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 rescis- 
 sion of the contract cannot be maintained by the pu)-chaser.'' The 
 reason assigned for this decision was that the purchaser had a per- 
 fect defense at law and in equity to any proceeding by the vendor 
 to enforce the agreement, and that an action by him would be neces- 
 sary. We have already seen under what circumstances the pur- 
 chaser will be deemed to have waived his right to rescind a contract 
 ■or to resist a suit for specific performance on the ground that the 
 
 lands. Hadlock v. Williams, 10 Vt. 570. Greenleaf v. Cook, 3 Wli. (U. S.) 13, 
 16. Hart v. Handlin, 43 Mo. 171. 
 
 'Innes v. Willis, 16 Jones&S. (N.Y.) 188. Goodman v. Rust, 4T. B. Mon. (Ky.) 
 421. Smith v. Robertson, 23 Ala. 312. Liddell v. Sims, 9 8m. & M. (Miss.) 596; 
 Davis V. Heard, 44 Miss. 50. Holland v. Anderson, 38 Mo. 55. 
 
 2 Ante, ch. 11. 
 
 ^Sugd. Vend. (Uth Eng. ed.) 53, 586. Boyce t. Grundy, 3 Pet. (U. S.) 210. 
 
 ^Bruner v. Meigs, 64 N. Y. 506, per Allen, J. The authority of this case 
 may be doubted. The reason given for the decision would apply in most cases 
 in which the purchaser goes into equity for a rescission of an executory contract. 
 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 
 iurther about the agreement. 
 
OF THE SUIT FOE RESCISSION PEOPEK. 659 
 
 title is defective.' Where the purchaser in a suit by him for rescis- 
 sion, 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.^ 
 
 § 278. DEFENSES TO SUIT FOB, SPECIFIC PEBFOBMANCE- 
 The purchaser, when the vendor seeks to compel specific perform- 
 ance of the contract, may of course show that the title is bad, or 
 doubtful, and such as he cannot be required to accept.^ As a gen- 
 eral 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 speciiic performance. 
 The position of tlae 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 eqiiity may refuse to rescind a contract for 
 the sale of lands which it would not specifically enforce,* leaving 
 the parties to their remedy at law.^ 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 con- 
 tract.* Nor will he be entitled to this relief if, subsequent to the 
 contract, he places a mortgage on the premises.'' 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.' But specific performance will not be decreed 
 at the instance of the vendor, if he cannot convey a clear title, 
 
 ' Ante, " Waiver of Objections," p. 183. 
 
 ^ Hyde v. Heller, 10 "Wash. 586; 39 Pac. Rep. 249. 
 
 " What matters are sufficient to render a title doubtful or unniarketable will be 
 hereafter considered. Post, ch. 31. 
 
 *2 Kent Com. (11th ed.) 487. Mortlock v. Buller, 10 Ves. 393. Jackson v. 
 Ashton, 11 Pet. (U. S.) 248; Dunlap v. Hepburn, 1 Wheat. (U. S.) 197; Morgan 
 V. Morgan, 3 Wheat. (U. S.) 290. Beck v. Simmons, 7 Ala. 71; Park v. Brooks, 
 16 Ala. 539. Seymour v. Delancy, 3 Cow. (N. T.) 530; 15 Am. Dec. 370; Osgood 
 Y. Franklin, 2 Johns. Oh. (N. Y.) 23; 7 Am. Dec. 513. Gans v. Renshaw, 2 Pa. 
 St. 34; 44 Am. De • 152. Louisville, etc., R. Co. v. Stone Co., (Ind. Sup.) 89 N. 
 E. Rep. 703. 
 
 » Jackson v. Ashton, 11 Pet. (U. S.) 239. 
 
 « KnatchbuU v. Grueber, 3 Mer. 124. 
 
 'Haber v. Burke, 11 8. &R. (Pa.) 338. 
 
 "Broyles v. Bell, 18 W. Va. 514. Bailey v. James, 11 Grat. (Va.; 468; 63 Am. 
 Dec. 659. 
 
660 MAKKETABLE TITLE TO KEAL ESTATE. 
 
 though no provision was made in the contract for a covenant of 
 warranty to be inserted in the deed, unless the purchaser expressly- 
 assumed the risk as to title.' 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.^ But, it is apprehended, that the 
 vendor must show in the first instance a record title that \% jyrinia 
 facie clear and unobjectionable, for by insisting upon specific per- 
 formance he avers that his title is such as the purchaser can be 
 required to take. In the nature of things, however, 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 compels him to show 
 in what respect the title is defective or objectionable. If the plain- 
 tiff cannot convey the title mentioned in the agreement, his bill will 
 be dismissed, though such objection be not made in the answer, nor 
 takcTi until a hearing before a master upon a reference.' But it has 
 been held that a ^Jurchaser who by the exercise of due diligence 
 might have discovered an objection to the title and set iip the same 
 as a defense in a suit for specific performance before decree, could 
 not, after decree, avail himself of such defect by additional plead- 
 ings, though he might, if the vendor be insolvent, suspend payment 
 of the purchase money until the defect could be investigated.* 
 
 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 iipon 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.' 
 
 ' Bates V. Delavan, 5 Paige Ch. (N. Y.) 299. Chambers v. Tulaae, 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. 
 
 s Park V. Johnson, 7 Allen (JIass), 378. 
 
 "Denny v. WicklifEe, 1 Mete. (Ky.) 216. 
 
 ' Weinstock V. Levison, 26 Abb. N. Cas. (X. Y.) 244, citing Ohio & Miss. R. 
 Co. V. McCarthy, 96 U. S. 258, a case, however, which did not arise between 
 
OF THE SUIT FOE R-E80ISSION PROPER. 661 
 
 § 2Y9. PLACING THE PARTIES IN STATU aUO. It is a cardi- 
 nal rule that in every proceeding in which an abrogation or rescission 
 of a contract for the sale of lands, is effected, whether it be the act 
 of the parties or the act of tlie law, whether it be the result of an 
 action to recover back the purchase money paid, or of an injunction 
 to restrain the collection of the purchase money, or of a direct suit 
 in equity for rescission, either party must be placed in the same 
 position in which he was before he entered into the contract. 
 Unless this can be substantially done, there can be no rescission, 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 can- 
 not 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 application 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 obliga- 
 tion to pay the purchase money. ^ 
 
 vendor and purchaser. It may be doubted whether the rule thus declared 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. 
 
 ' 1 Sugd. Vend. 347. Ante, p. 584. Wickham v. Evered, 4 Madd. .53; Tindal 
 V. Cobham, 3 Myl. & K. 385; Fowler v. Ward, 6 .Jur. 547; Nicholson v. Words- 
 worth, 3 Swan. 365; Southcomb v. Bishop, 6 Hare, 313; Gordon v. Mahoney, 
 13 Ir. Eq. 883. Garner v. Leverett, 33 Ala. 410; Duncan v. Jeter, 5 Ala. 604; 39 
 Am. Dec. 343; Pitzpatrick v. Featherstone, 3 Ala. 40. Seaburn v. Sutherland, 
 17 Ark, 603; Wheat v. Dotson, 13 Ark. 698. Lane v. Latimer, 41. Ga. 171. 
 Underwood v. West, 53 111. 597; Smith v. Brittenham, 98 111. 188; Deal v. 
 Dodge, 36 111. 459; Gehr v. Hogerman, 36 111. 438; Vining v. Leeman, 45 111. 346. 
 Marvin v, Applegate, 18 Ind. 435; Osborn v. Dodd, 8 Blackf. (Ind.) 467; Cain v. 
 Guthrie, 8 Blackf, (Ind.) 409; Brumfield v. Palmer, 7 Blackf. (Ind.) 337, White 
 V, Hardin, 5 Dana (Ky.), 141; Peebles v. Stephens, 3 Bibb(Ky.), 334; 6 Am. Dec. 
 660; Wicklilf V. Lee, 4 Dana (Ky.), 30. Matta v. Henderson, 14 La. Ann. 473; 
 Clark V. Briggs, 5 La. Ann. 634; McDonald v. Vaughan, 14 La. Ann. 716. Shipp v, 
 Whelen, 33 Miss. 646; Williamson v. Ramey, 1 Freem, Ch. (Miss.) 113; Hill v. 
 Samuel, 31 Miss. 307. Smith v. Busby, 15 Mo. 387; 57 Am. Dec. 307. Young -c. 
 
662 MAEKETABLE TITLE TO EEAL ESTATE. 
 
 The purchaser will not be permitted to rescind the contract if he 
 has made material alterations in the property, such as to change its 
 nature and character, if thej 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.* JSTor where he has 
 disabled himself from restoring the possession to the vendor by 
 conveying the premises to a stranger.^ Nor where a portion of the 
 premises have been sold under execution against him.' Nor where 
 he has materially impaired the value of the land by cutting down 
 the timber.* But in cases in which the jjurchaser acted in good faith 
 and the injury to the premises is capable of asceriainment and 
 deduction from the jDurchase money he is seeking to recover back, 
 he may have a rescission of the contract though the property can- 
 not be restored in specie^ If the purchaser be unable to put the 
 
 Stevens, 48 N. H. 133; 2 Am. Rep. 303. Sandford v. Travers, 7 Bosw. (N. Y.) 
 498; More v. Smedburgh, 8 Paige Ch. (N. Y.) 600; Tompkins v. Hyatt, 28 N. Y. 
 3-17; Goelth v. White, 3.5 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, 2.5 Wend. (N. Y.) 107; Masson v. Bovet, 1 Den. (N. Y.) 73; 43 Am. Dec. 
 651. NicoU V. Carr, 35 Pa. St. 381; Congregation v. Miles, 4 Watts (Pa.), 146. 
 Clarke v. Locke, 11 Humph, (Tenn.) 800; Officer v. Murphy, 8 Yerg. (Tenn.)502. 
 Lynch V. Baxter, 4 Te-\-. 431; 51 Am. Dec. 735. Hyslip v. French, 52 Wis. 513; 
 Grant v. Law, 29 Wis. 99; Hendricks v. Goodrich, 15 Wis. 679. 
 
 ' 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 converted 
 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, 21 lud. 332. 
 
 = McKeen v. Beaupland, 35 Pa. St. 488; Rogers v. OlshofEskv, 110 Pa. St. 147; 
 2 Atl. Rep. 44. Colyer v. Thompson, 2 T. B. ilou. (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. 
 
 3 C'ark V. Eriggs, 5 La. Ann. 624. 
 
 ' Gehr v. Hagerman, 26 111. 459. 
 
 ■■ Wright V. Dickinson, 67 Mich. 580. Calhoun v. Belden, 8 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 before he can 
 have a rescission of the contract, has been held not to apply where retention of 
 the property is necessary for tlie indemnity or reimbursement of the purchaser, 
 as where the vendor is insolvent and cannot return the purchase money. Garner 
 
OF THE SUIT FOE EESCISSION PEOPEE. 663 
 
 vendor i7i statu quo, lie has his remedy over by action on the case 
 if the vendor was guilty of fraud.^ 
 
 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,^ 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, tha 
 vendor may maintain a bill to compel him to elect whether he will 
 accept the title, or abandon the contract and restore the possession.^ 
 
 If on rescission the purchaser refuse to restore the premises the 
 vendor may recover them in ejectment.^ In such an action the pur- 
 chaser cannot set up paramount title in the third person as a defense.^ 
 The purchaser is estopped to deny the title of his vendor. Even 
 where he buys in an adverse claim to the premises, he must surren- 
 der possession before he can claim rescission against his vendor. He 
 must take his chances of recovering the land on the title thus 
 acquired.^ 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.'' 
 
 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 
 
 V. Leveritt, 32 Ala. 413; Young v. Harris, 2 Ala. 108; Elliott v. Boaz, 9 Ala. 773; 
 Greenlee v. Gaines, 13 Ala. 198; 47 Am. Dec. 49; Parks v. Brooks, 16 Ala. 539;_ 
 Read v. Walker, 18 Ala. 323; Foster v. Grcssett, 29 Ala. 393; Gallagher v. 
 Witherington, 29 Ala. 420; Duncan v. Jeter, 5 Ala. 604; 89 Am. Dec. 343. 
 
 ' Hognn v. Weyer, 5 Hill (N. Y.), 389. 
 
 ^ 3 Kent Com. 408; 2 Warvelle Vend. 878. Cases cited supra, this section. Ben- 
 jamin V. Ilobhs, 31 Ark. 151. Lovingston v. Short, 77 111. 587. Porter v. Tit- 
 comb, 33 Me. 300. Hogan v. Weyer, 5 Hill (N. Y.), 389. 
 
 ^ Davison v. Perrine, 32 N. J. Eq. 87. 
 
 n Sugd. Vend. (8th Am. ed.) 276(179). NicoU v. Carr, 31 Pa. St. 381. Fowler 
 V. Cravens, 3 J. J. M. (Ky.) 3; 20 Am. Dec. 153. 
 
 5 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.)503. 
 Ante, p. 483. 
 
 ■> Southoomb v. Bishop, 6 Hare, 313. 
 
664 MAEKETABLE TITLE TO REAL ESTATE. 
 
 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 interest, costs 
 and expenses for improvement, to the purchaser.' 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.' It maybe doubted whether such a rule would 
 apply where the court has power to enter a judgment Of decree con- 
 ditioned to be inoDcrative unless the uremises be restored to the 
 vendor.* 
 
 The cases in which the purchaser may have a rescission of the con- 
 tract without restoring the premises to the vendor have been else- 
 where considered in this work.* The court, in decreeing a rescission 
 of the contract on the ground of failure of title, will direct out- 
 standing purchase-money notes to be delivered up and canceled, and 
 will also direct that any bond for title or other obligation to convey 
 executed by the vendor, be surrendered bv the purchaser and 
 canceled.^ 
 
 § 280. INTEREST. BENTS AND PROFITS. IMPROVEMENTS. 
 On rescission of an executory contract for the sale of lands for M^ant 
 
 ' Masson v. Bovet, 1 Den. (N, Y.) 74; 43 Am. Dec. 651. Bauk v. Ettinge, 40 
 N. Y. 391. In this case it was held that the vendor could not require tie pur- 
 chaser to indemnify him for expenditures which he had made upon the expecta- 
 tion of receiving money under tlie contract. As to the contention that each party 
 must be restored to the precise condition in whicli 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 mcney paid under a mistake of fact may he 
 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, p. 589. Eames v. Der Germania Turn Vcrein, 8 111. App. 663, citing 
 Hunt V. Silk, 5 East, 449, and Norton v. Young, 8 Greenl. (Me.) 30. 
 
 ^ In Pennsylvania a condition requiring the purchaser to reconvey the premises 
 to the vendor may be inserted in the verdict. Babcook v. Case, 61 Pa. St. 427 
 
 ■i Ante, p. 593. 
 
 ' 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. 
 
OF THE SUIT FOE EESCISSIf)N PROPBK. 665 
 
 of title in the vendor, whether by suit in equity or action at bar to 
 recover back the purchase money, the purchaser, if he lias never 
 been in possession, -will be entitled to interest on the purchase money 
 he has paid.' 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,' taking into consideration, of course, any material 
 inequality between the two items.'* Even where the vendor fraud- 
 ulently concealed a defect in his title he has been allowed the value 
 of the rents and profits enjoyed by tlie purchaser.^ But it has been 
 
 ' 3 Warvellc Vend. 885. 
 
 « 2 Warvelle Vend. 885. Watts v. "VVaddle, 6 Pet. (U. S.) 389. Mclndoe v. 
 Mornaan, 26 Wis. 588; 7 Am. Rep. 96. White v. Tucker, 52 Miss. 145. Axtel 
 V. Chase, 77 Ind. 74. Ba,ston v. Clifford, 68 111. 67; Bitzer v. Orban, 88 111. 130. 
 McManus v. Cook, 59 Ga. 485. Griffith v. Depew, 8 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; WickliflE 
 V. Clay, 1 Dana (Ky.), 535; Taylor v. Porter, 1 Dana (Ky.), 431; 25 Am. Dec. 
 155; Williams v. Rogers, 2 Dana (Ky.), 374. Buchanan v. Lorman, 3 Gill (Md.), 
 51. Outlaw V. Morris, 7 Humph. (Tenn.) 263. Patrick v. Roach, 21 Tex. 251; 
 27 Tex. 579; Littlefield v. Tinsley, 26 Tex. 353, 359; Tennell v; Dewitt, 20 
 Tex. 356; Pitzhugh 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 be had been guilty of fraud respecting the title, 
 and further, that the real owner was proceeding in ejectment against the 
 purchaser. 
 
 33 Warv. Vend. 885. Doggett v, Emerson, 1 Woodb. & M. (U. S.) 195, 204. 
 Shields v. Bogiiolo, 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 allow- 
 ing 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. Deo. 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. 
 84 
 
666 MARKETABLE TITLE TO REAL ESTATE. 
 
 held that he will not be entitled to au 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.^ Nov 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.^ In England it is said to be usual and proper to specify in 
 every case the day on which the purchase is to be completed, when 
 the purchaser is to have possession, and when he is to receive tlie 
 rents and profits and pay interest on the purchase money .^ The 
 purchaser cannot, however, in equity avail himself of a breach of 
 these conditions unless time be of the essence of the contract.^ 
 
 It is not necessary that a purchaser, seeking a decree rescind- 
 ing the contract when the title has failed, shall liave previously 
 tendered the reasonable value of the use and occupation of the prem- 
 ises ; the vendor's demand in that respect can be adjusted in the 
 action.^ If the contract be rescinded at the suit of the purchaser, 
 for want of title in the vendor, and no provision be made for rede- 
 livery of the land to the vendor, he, or his heirs, may maintain a 
 bill against the purchaser for an account of the rents and piofits.'' 
 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.'' But he can- 
 Thompson V. Lee, 31 Ala. 392. Id Walker v. Ogdeu, 1 Dana (Ky.), 247, the pur- 
 chaser 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. 
 
 ' Seamore v. Harlan, 3 Dana (Ky.), 410. 
 
 'McLaren v. Irvin, 63 Ga. 275. 
 
 8 Dart. V. &P. (5th ed.) 127. 
 
 "Id. 417. 
 
 ' Dotson V. Bailey, 76 Ind. 434. 
 
 « Officer V. Murphy, 8 Yerg. (Teun.) 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. 
 
 ' 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. Buchanaa 
 V. Lorman, 3 Gill (Md.), 51. Bitzer v. Orban, 88 111. 130. 
 
OF THE SUIT FOR RESCISSION PROPER. 667 
 
 not be charged with ordinary deterioration or wear and tear of the 
 premises.^ 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 will not be account- 
 able to the vendor for the mesne profits.^ 
 
 It has 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.' 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.^ 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 
 
 ' Williams v. Rogers, 2 Dana (Ky.), 374. Buchanan v. Lorman, 3 Gill (Md.), 51. 
 
 ' Ante, p. 220. Greene v. Allen, 33 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 heen 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 fraudu- 
 lent vendor, who would thus speculate on his own tortious acts." 
 
 ' Richardson v. McKiuson, Litt. Sel. Gas. (Ky.) 820; 13 Am. Dec. 308, reversing 
 the judgment below. The court said: "An estate may be made more or less pro- 
 ductive, 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, iu 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. 
 
668 MARKETABLE TITLE TO EEAL ESTATE. 
 
 an implied contract to pay rent, and that no such contract on the 
 part of the purchaser can he impUed from his mere occupancy of 
 the premises.' The vendor may alwaj's provide in the contract that 
 in case of an inabihty to make title the purchaser shall pay a rent 
 for the property.^ 
 
 We have seen that at law a purchaser makes improvements on the 
 premises at his own risk.^ But in equity, as a general rule, where- 
 ever the vendor would receive the benefit of permanent improve- 
 ments made by the purchaser he must account for them either by 
 paying the value of them to the purchaser, or by allowing them as 
 a set-off against any demands which he may have against the pur- 
 chaser.* But even in equity the purchaser will not be entitled to 
 an allowance for his improvements if tliey were made when he 
 
 ' Ankeny v. Clark, 148 L*. 8. 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. 
 
 '' As was done in Andrews v. Babcock, (Conn.) 36 Atl. Rep. 715. 
 
 3 Ante, p. 232. 
 
 «3 Sugd. (8th Am, ed.) 514 (747); 3 Story Bq. Jur. 1334. King v. Thompson, 
 9 Pet. (U. 8.) 204. Kirkpatrick v. Downing, 58 Mo. 33; 17 Am. Rep. 678. Mar- 
 tin V. Anderson, 7 Ga. 228. Peebles v. Stephens, 8 Bibb (Ky.), 334; 6 Am. Dec. 
 660; Ewing v. Handley, 4 Litt. (Ky.) 346, 371; 14 Am. Dec. 140; Richardson v. 
 McKiuson, Litt. Sel. Cas. (Ky.) 330; 13 Am. Dec. 308; Griffith v. Depew, 3 A. K. 
 Marsh. (Ky.) 177; 13 Am. Dec, 141; Morton v. Ridgway, 3 J. J. Marsh. (Ky.) 
 358. 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. Peteler, 88 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, 3 Baxt. (Tenn.) 88. Patrick v. Roach, 31 Tex. 351 ; 37 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 pur- 
 chaser is not entitled to an allowance for his improvements where he sues to 
 rescind the contract, but that he would be if he sued to recover damages for 
 breach of the contract. If this be true, the purchaser electing to affirm the 
 contract, may recover damages for the breach, including the value of his 
 improvements, retain possession of the land, and by getting in the rights of the 
 adverse claimant, practically receive compensation for his improvements without 
 having incurred a loss on their account. On the other hand, if he elected to 
 rescind the contract, he could have nothing for his improvements; their entire 
 benefit would pass to the vendor upon a return of the premises to him; or he 
 
OF THE SUIT FOE EESCISSION PEOPEK. 669' 
 
 knew there was a defect in the title.* Nor where he participates in- 
 a fraudulent intent of the vendor in selling the property.' The 
 vendor will of course be entitled to set off against the improve- 
 ments, the fair rental value of the land,'^ withoiit the impro^'e- 
 ments.* If tlie purchaser has had the use and beneiit of tlie 
 improvements 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.' 
 
 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, obviously depend 
 in a great measure upon the circumstances of each particular case, aud 
 cannot be made the subjects of unbending rules. A court of equity 
 
 (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. (N. Y.) 85; 4 Am. Dec. 329, which was 
 a suit to recover back the purchase money and value of improvements, the con- 
 tract being void because not in writing, and the vendor having refused to per- 
 form. See, contra, the latter case. Mason v. Swan, 6 Heisk. (Tenn.) 450; Rhea. 
 V. Allison, 3 Head (Tenn.), 176. 
 
 ' 3 Sugd. Vend. (8th Am. ed.) 515. Scott v. Battle, 85 N. C. 184; 39 Am. Rep. 
 694. But see Ewing v. Handley, 4 Lift. (Ky.) 371; 14 Am. Deo. 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. SIcCalla, 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, buying on a speculation, had been, on 
 account of the defect, able to get the property much below its real value. 
 
 ^ Strike's Case, 1 Bland (Md.), 57. 
 
 * 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. Harlan, 3 Dana (Ky.), 
 411. 
 
 «Morton v. Ridgway, 3 J. J. Marsh. (Ky.) 258. 
 
670 MARKETABLE TITLE TO EEAL ESTATE. 
 
 will be chiefly concerned to see that each party is placed as nearly 
 as possible in statu quo, without regard to arbitrary restrictions.' 
 
 § 2S1. PLEADING. In some cases it has been held that it is 
 incumbent on the purchaser seeking to rescind an executory con- 
 tract for the sale of lands, to aver and prove facts showing that the 
 title is bad, and that he cannot require the vendor to show title.^ It 
 is true that the vendor may be in possession of many facts resjDect- 
 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 
 great hardship, if required to prove facts lying peculiarly within 
 the knowledge of tlie 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 expense 
 of proving it to be sufficient. He should at least, be required to 
 point out the defect of which he complains, and to prove it as 
 alleged. But there are cases which decide that if the vendor sues 
 for specific performance, as a general rule the burden will be upon 
 him to show that he has such a title as the purchaser can be required 
 to take.' 
 
 ' Littlefield v. Tinsley, 36 Tex. 353, 358. 
 
 ' See ante, p. 273, 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. 
 
 ii Griffin v. Cunningham, 19 Grat. (Va.) 571; Grantland v. Wight, 5 Munf. 
 (Va.) 295. Walsh v. Barton, 24 Ohio St. 28. Jarman v. Davis, 4 T. B. Mon. 
 (Ky.) 115. Daily v. Litchfield, 10 Mich. 38; Dwight v. Cutler, 3 Mich. 566; 64 
 Am. Dec. 105. Cornell v. Andrus, 36 N. J. Eq. 321. See ante, p. 564. It is sug- 
 gested 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 is 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 knowledge of the party having the negative. The parties 
 
OF THE SUIT FOB EBSOISSION PEOPEE. 671 
 
 If the vendor sue for specific performance, it is not necessary 
 that the purchaser's objections to the title be taken in liis answer ; 
 tliey may be made at any time before the hearing.' 
 
 § 282. PARTIES. All parties in interest must, of course, be made 
 parties to the suit for rescission.' An assignee of one of the pur- 
 chase-money notes has been held a necessary party.' So, also, one 
 wlio had purchased from the complainant.* If the purchaser should 
 die pending the suit, his heirs must be made parties. By a rescis- 
 sion their interests would be directly affected, and to authorize a 
 decree it is indispensable tliat they should be before the coiirt.' 
 
 should so plead that it may be determined whether the title depends upon a 
 question of law or a question of fact; so that, in the latter event, they may 
 arrive at an issue, and the burden of proof be intelligently and not arbitrarily 
 disposed. 
 
 ' Park V. Johnson, 7 Allen (Mass.), 378. 
 
 2 Cummins v. Boyle, 1 J. J. Marsh. (Ky.) 480. 
 
 'Pollock V. Wilson, 3 Dana (Ky.), 25. 
 
 *Toder v. Swearingen, 6 .J. J. Marsh. (Ky.) 518. 
 
 ' Huston V. Noble, 4 J. J. Marsh. (Ky.) 130. 
 
GHAPTEE 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. § 391. 
 
 TITLE AS DEPENDENT UPON ADVERSE POSSESSION. § 293. 
 PRESUMPTIONS FROM LAPSE OF TIME. § 393. 
 TITLE AS AFFECTED BY NOTICE. § 294. 
 BURDEN OF PROOF. § 295. 
 ILLUSTRATIONS OF THE FOREGOING PRINCIPLES. § 296. 
 
 Errors and irregularities in judicial proceedings. § 297. 
 
 Sale ol the estates of persons under disabilities. § 298. 
 
 Want of parties to suits. § 399. 
 
 Defective conveyances and acknowledgments. Imperfect registra- 
 tion. § 300. 
 
 Construction of deeds and wills. § 301. 
 ■ Comptency of parties to deeds. § 302. 
 
 Title as dependent upon intestacy. Debts of decedent. | 303. 
 INCUMBRANCES. § 304. 
 
 Admitted incumbrances. § 305. 
 
 Incumbrances w^hich make the title doubtful. § 306. 
 
 Apparently unsatisfied incumbrances. § 307. 
 
 § 283. GENERAL RULES. A purchaser of lands can never be 
 required to accept a doubtful or unmarketable title,^ even though 
 the fullest indemnity be offered by way of a general warranty from 
 a solvent vendor.' Specific performance is a matter of grace and 
 not of right, and will never be decreed when the title is open to 
 reasonable doubt.'' All titles absolutely bad are, of course, unmar- 
 
 '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; Bispliam Eq. Jur., § 378; Atkinson Marketable 
 Title, ch, 1. 
 
 'Batchelder v. Macon, 67 N. C. IHl. 
 
 2 Mitchell V. Stinemetz, 97 Pa. St. 253. 
 
OF DOUBTFUL TITLES. 
 
 673 
 
 ketable, but the expression " marketable title " as originally employed 
 by courts of equity, was not the equivalent of " good title " or " per- 
 fect 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 accept on a bill by the vendor 
 for specific performance.^ It is possible that a perfect title may be 
 unmarketable ; ^ 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 tlie title, though really good if all the facts could be 
 known, will be deemed unmarketable.' This doctrine of "mar- 
 ketable titles " was originally cognizable only in the courts of equity, 
 but in several of the American States in which the distinction 
 between legal and equitable procedure has been abolished, the same 
 doctrine has been applied in courts of law, e. g., in actions to recover 
 back the purchase money. To this fact is probably due the tendency 
 of the courts in those States to apply the term " unmarketable " to such 
 titles as are absolutely bad, as well as those which are merely doubtful. 
 It is impossible in the nature of things that there should be a 
 mathematical certainty of a good title.* Such a thing as absolute 
 security in the jDurchase of real estate is unknown.^ But a bare 
 possibility that a title may be affected from certain causes, when the 
 highest possible evidence of whicli the nature of the case admits, 
 
 'Adams Eq., m. p. 84; Beach Mod. Eq. Jur. § 606. Stapylton v. Scott, IS 
 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. 
 
 s 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 apprehen- 
 sion in the mind of a reasonable, prudent and intelligent person, acting uponi 
 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. 
 
 2 Post, this ch. p. 692, 706, note 2. 
 
 * Language of Lord Haedwickb in Lyddall v. Weston, 2 Atk. 20. First Afri- 
 can 8oc. V. Brown, 147 Mass. 196, 298; 17 N. E. Rep. 549. 
 
 'Rawle Govts, for Title (5th ed.), 259. 
 85 
 
g74 MARKETABLE TITLE TO EEAL ESTATE. 
 
 amounting to a moral certainty, is given that no such cause exists, 
 does not render the title doubtful.' The purcliaser cannot demand 
 a title absolutely free from all suspicion or possible defect. He can 
 simply require a title sucli as prudent men, well advised as to the 
 facts and th-eir legal bearings, would be willing to accept.^ 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 sucli as would induce a 
 prudent man to hesitate in accepting a title affected by them.* 
 What matters of law or what matters of fact are sufficient to make 
 a title so doubtful as to be unmarketable, cannot be indicated by posi- 
 tive rules. Facts or questions which present no difficulties to one 
 judicial mind may, in tlie opinion of another, raise insuperable 
 objections to the title. It is obvious that the existence of a " fair 
 and reasonable doubt " as to the title must depend upon the capaci- 
 ties of the judge to whom the question is addressed. " Practically 
 the judge acts upon his own doubts." ^ It has been said that the 
 title which a purchaser will be required to take should be, like 
 Csesar's wife,^ free from suspicion, but that the purchaser will not be 
 relieved on account of possibilities of defects, or mere suspicions 
 of faults ending only in suspicion.' The doubt must be " grave and 
 reasonable."^ If there is such doubt as to make it probable that the 
 purchaser's right may become a matter of investigation, he will not 
 
 ' Moser v. Cochran, 107 N. Y. 35; 13 N. E. Bep. 442; Schermerhorn v, Niblo, 
 2 Bosw. (N. Y.) 161. Hedderley v. Jolinson, 42 Minn. 443; 44N. W. Kep. 527. 
 "Webb V. Chisolm, 24 8. C. 487. 
 
 ' Todd V. Union Dime Sav. Inst., 128 N. Y. 636; 28 N. B. Bep. 504. 
 
 « Vreeland v. Blauvelt, 23 N. J. Eq. 485. A marketable title is one that will 
 l)iing as high a price in themavlset with the purchaser's objection to its sufficiency 
 as without. Parmly 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.) 57S 
 (387). 
 
 * Sedgwick v. Hargrave, 2 Ves. 59. 
 
 '' Gordon v. Champneys, Turn. & Euss. 88. Laurens v. Lucas, 6 Rich. (S. C.) 
 Eq. 217; Monagan v. Small, 6 Rich. N. S. (S. C.) 177. 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. 
 
 8 Moore v. Appleby, 108 N. Y. 237, 15 N. E. Rep. 377; 1 Coll. 102. 
 
OF DOTIBTFUL TITLES. 675 
 
 be compelled to complete the purchase.' If the doubt arise upon a 
 question of fact of such a 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 f 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,^ 
 the purchaser will be relieved. An often-cited English case* estab- 
 lishes the rule that a title is doubtful when it is such as other per- 
 sons 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. 
 
 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 fre- 
 quently 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.^ 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 difficulty 
 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 or doubtfulness of title in 
 the vendor which takes away his right to specific performance, 
 would not sustain the purchaser's bill for rescission.^ 
 
 'Per TiNDAL, C. J., in Curling v. Shuttleworth, 6 Taunt, 121. 
 
 n Sugd. Vend. (8th Am. ed.) 609. Lowe v. Lush, 14 Ves. Jr. 547. 
 
 « Moore v. Williams, 115 N. Y. 586; 32 N. E. Eep. 233. 
 
 ■"Pyrke v. Waddingham, 17 Eng. L. & Eq. 534; 10 Hare, 1. 
 
 » Dart Vend, (5th ed.) 734; Story Eq. Jur. §§ 206, 693. Gans v. Renshaw, 3 
 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 insuffi- 
 cient to sustain an application by the purchaser for rescission, especially if he is 
 in undisturbed possession of the premises. Duvall y. Parker, 3 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 
 
676 MARKETABLE TITI-E TO REAL ESTATE. 
 
 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.^ 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 pre- 
 sumed to know the law applicable to those facts.^ 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,^ another court of co-ordinate jurisdiction in 
 which the purchaser's title may be attacked, will pronounce the 
 same judgment. 
 
 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.* Plence, it is not customary to raise 
 the objection that the title of the lessor is merely doubtful or 
 unmarketable, tiiough it has been held that the title to a ground 
 rent may be rejected, if the title to the land out of which the i-ent 
 issued is unmarketable.^ 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.^ 
 
 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.'' The opinions of conveyancing counsel, 
 or lawyers in general, will not be received upon the question whether 
 a certain title is or is not marketable.^ But a judgment will not be 
 
 rule, all that he desires by abandoning the contract and resisting the vendor's 
 demand for specific performance. 
 
 »1 Sngd. Vend. (8th Am. ed.) 580; 2 Beach Mod. Eq. Jur. § 608. 
 
 2 If 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 propriety doubt. 
 O'Reilly v. King, 28 How. Pr. (N. Y.) 408. 
 
 'Roake v. Kidd, 5 Ves. 647. 
 
 "Rawle Govts, for Title (5th ed.), § 20, par. 5. 
 
 "Mitchell V. Stinemetz, 97 Pa. St. 251. 
 
 « 1 Sugd. Vend. (8th Am. ed.) 554 (368). Purvis v. Eayer, 9 Pri. 488. 
 
 ■■ Parmly v. Head, 33 111. App. 134; 17 Wash. Law Rep. 332. 
 
 'Moser v. Cochrane, 107 N. Y. 35; 13 N. E. Rep. 443. Montgomery v. Pac. L. 
 Co. Bureau, 94 Cal. 284; 29 Pac. Rep. 640; Winter v. Stock, 39 Oal. 418; 89 
 
OF DOUBTFUL TITLES. 677 
 
 reversed because of the admission of such testimony when it appears 
 that the entire title upon which such witness' opinion was founded, 
 was before tlie court.' 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.^ He is not exonorated, in refusing to 
 perform the contract, by the advice of competent counsel that the 
 title is doubtful, if it be in fact good. He 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 OF CASES IN WHICH THE TITLE "WILL 
 BE HELD BOTJBTFUL. The following classification of cases in 
 which the title will be considered doubtful, has been made by an 
 able text writer,^ and is perhans 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 
 was put by Alderson, B., where there is a ^'■reasonable decent 
 probability of litigation."^ The court, to tise a favorite expression, 
 will not compel the purchaser to buy a law suit? If there be any 
 
 Am. Dec. 57. Mead v. Altgeld, 33 111. App. 373; S. C. on app., 26 N. E. Rep. 
 388; Leahy v. Hair, 38 111. App. 461, Atkinson v. Taylor. 34 Mo. App., 443. 
 Murray v. Ellis, 113 Pa. St. 485; 3 Atl. Rep. 845; Dalzell v. Crawford, 1 Pars. 
 "Sel. Cas. (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 miffht be 
 fairly questioned by competent persons, the title must be considered doubtful. 
 
 ' Mead v. Altgeld, supra. 
 
 « 1 Sugd. Vend. (8th Am. ed.) 537. Canfield v. Gilbert, 4 Esp. 331. 
 
 = Montgomery v.' Pacific L. Co. Bureau, 94 Cal. 284; 29 Pac. Rep. 640. 
 
 ^Post, eh. 33. Longworth v. Taylor, 1 McLean (U. S.), 395. 
 
 ' Fry Spec. Perf. § 870. 
 
 « Cattell V. Corrall, 4 Y. & C. Ex. 237. 
 
 'Post, this chapter, § 290. Price v. Strange, 6 Madd. 159, 165; Sharp v. 
 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. 183; 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, 
 
678 MAEKETABLE TITLE TO REAL ESTATE. 
 
 reasonable cLauec that some third person mar raise a question against 
 the owner of the estate after the completion of the contract, the title 
 will be deemed unmarketable.^ 
 
 (II) WTiere there has ieen a decision ly a court of co-ordinate 
 jurisdiction adverse to the title, or to the principle on which the 
 title rests, though the court thinks that decision wrong} 
 
 (III) Where there has been a decision in favor of the title, which 
 the court thinks wrong.^ 
 
 (lY) Where the title depends on the construction and legal 
 operation of some ill-expressed and inartificial instrument, andtJie 
 court holds the conclusion it arrives at to le 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 not render the title marketable if the court thinks 
 that another judge'' or other competent person* inight 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 
 
 is not marketable. Warren v. Banning, 21 N. Y. Supp. 883. A title suggestive 
 of future litigation is unmarlcetable. Beer v. Leonard, 40 La. Ann. 845; 5 So. 
 Rep. 257; James v. Meyer, 41 La. Ann. 1100; 7 So. Rep. 618. Qum-e, whether a 
 purchaser can be compelled to accept a tax title ? The court intimated that such a 
 title might be as free from objection as any other. Lesley v. Morris, 9 Phila. 
 (Pa.) 110; 30 Leg. Int. 108. 
 
 ' Seaman v. Vawdrey, 16 Ves. 390. A title is doubtful if it e.^poses the pur- 
 chaser to litigation. Preetly v. Barnhart, 51 Pa. St. 279; Speakmau v. Fore- 
 paugh, 44 Pa, St. 363. " If the purchaser would be exposed to a lawsuit with, 
 the least chance of losing it, he ought not to be held to the bargain." Gibson, 
 C. J., in Gans v. Renshaw, 2 Pa. St. 84; 44 Am. Dec. 1.V2. A title dependent 
 upon the question whether certain acts, conduct or admissions amount to an 
 estoppel in jiais is unmarketable. McGraue v. Kennedy, 10 N. Y. Supp. 119. 
 
 »Per RoMtLLY, JI. R., in MulUngs v. Trinder L. R., 10 Eq. 454, Ferris v. 
 Plummer, 42 Hun (N. Y.), 440. 
 
 3 Per RoMiLLY, M. R., in MuUings v. Trinder, L. R., 10 Eq. 454. 
 
 •Alexander v. Mills, L. R., 6 CUi. 132; Pyrke v. Waddingham, 10 Hare, 1; IT 
 Eng. L. & Eq. 584. 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. 
 
 = ^'reeland 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 con- 
 tract, Pratt V. Eby, 67 Pa. St. 396. 
 
 « 2 Beach Mod. Eq. Jur. § 606. 
 
OF DOUBTFUL TITLES. 679 
 
 the certain conviction of the court, in deciding the point, that no 
 other judge would take a different view.* 
 
 (V) Where the title rafs on a ^resumj)iion of fact of such a 
 kind that if the quention of fact were hefore a jury it would lie the 
 duty of the judge not to give a clea.' direction in favor of the fact, 
 hut to leave the jury to draw their own conolusimis from the 
 evidence? 
 
 (VI) Where the circumstances amount to presumjjtive (though 
 not necessarily conclusive) evidence of a fact fatal to the title, as, 
 e. g., that the exercise of a power under which the vendor claimed 
 was afrattd upon the power? 
 
 § 285. CLASSIFICATION OF CASES IN WHICH THE TITLE WILL 
 NOT BE HELD DOTJBTFtJL. The same author makes the following 
 classification of cases in which the court would not. as he conceives, 
 consider the title to he doubtful •? 
 
 (I) Where the probability of litigation ensuing against the 
 •purchaser in respect of the doid)t is not great • the ccurt, to use Lord 
 IlardwicTce^s language in one case, ^'' must gooern itself by a inoral 
 certainty, for it is impossible in the nature of things there should 
 be a mathematiccd certainty of a good title"'" 
 
 ■3 Dart Vend. 1103. Rogers v. Waterhouse, 4 Drew, 32; Pegler v. White, 33 
 Beav. 403; Howe v. Iluat, 81 Beav. 430. But see Beioley v. Carter, L. R., 4 Ch. 
 App. 330, and cases cited, 3 Dart Vend. 1103, n, 
 
 ^ Emery v. Grococli, 6 Madd. 54. Shriver v. Sliriver, 86 N. Y. 575. To this 
 class, the author says, may be referred many of those cases where a doubt as to 
 a fact lias 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 vendor produced some 
 evidence (Freer v, Hesse, 4 De G., ]M. ifc G. 495), or upon the presumption arising; 
 from mere possession. Eyton v. Dielien, 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 pur- 
 chaser 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 \'. 
 Vawdrey, 16 Ves. 393; Martin v. Cotter, 3 Jon. & L. 496. In Spencer v. Top- 
 ham, 32 Beav. 573, an unwilling purchaser was compelled to take a title depend- 
 ing on the validity of a purchase by a solicitor from his client on proof of the 
 validity of the transaction, though given in the ab_sence of the client, who, it was 
 urged, might possess other evidence and ultimately set aside the sale. See, also. 
 
e 
 
 680 MARKETABLE TITLE TO REAL ESTATE. 
 
 (II) Where there has heen a decision adverse to the title h>j an 
 inferior courts which decision the superior coicrt holds to he clenrlij 
 wrong} 
 
 (III) Where the question depends on the general laiv of th 
 land ; " as a general and almost universal rule the court is hound 
 as much between vendor and purchaser, as in every other case, t<i 
 ascertain and so determine as hest it may, what the law is, and to 
 take that to he the latu which it has so ascertained and deter- 
 mined."^ An illustration of tins rule, as applied in America, will 
 be found in the case of Faircliild v. Marshall.^ 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 jjurchaser must complete the 
 contract. 
 
 (IV) Where the question, though one of construction, turns on 
 a general rule of construction, unafferted by any sqweicd conte.vt in 
 the instrument and the court is in favor of the title.* 
 
 (V) Where the title depends on a presumption, provided it he 
 such that if the question icere before a jury, it would he the duty 
 
 Falkner v. Equitable Reversionary Society, 4 Drew, 352. Tlio mere fact that 
 the purchaser is to take under an assignment for the benefit of creditors, which 
 may be attaclced 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. Stinson, 110 K Y. 631; 17 N. E. Rep. 144. 
 
 > Beioley v. Carter, L. R., 4 Ch. 330; Alexander v. Mills, L. R., 6 Ch. 134: Rad- 
 ford V. Willis, L. R., 7 Ch. 7. 
 
 'Per J.VMBs, L. J., in Alexander v. Mills, L. R., 6 Ch., 131, 133; Forster v. 
 Abraham, L. R., 17Eq. 351; Osborne v. Rowlett, 13 Ch. D. 774; Pyrke v. 
 Waddiugham, 10 Hare, 1. 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 instru- 
 ment 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, 43 Minn. 14; 43 N. W. 
 563. 
 
 '42 Minn. 14; 43 N. W. Rep.- 563. 
 
 ^Radford v. Willis, L. R., 7 Ch. 7. 
 
OF DOTJBTFUL TITLES. 681 
 
 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} 
 
 (YI) Where the doubt rests not on proof or presunvption htit on 
 a suspicion of mala fides? Bnt a purchaser cannot be compelled 
 
 ' Emery v. Grocock, 6 Madd. 54; Barnwell v. Harris, 1 Taunt. 430. Thus, 
 where the recital of deeds raised the presumption that they contained nothing 
 adverse to the title, the mere loss of the deed, where the title was fortified by 
 sixty years' undisputed possession, was held not to create a reasonable doubt. 
 Prosser v. Watts, 6 Madd. 59; Magennis v. Fallon, 2 Moll. 561. So, where the 
 validity of a title depended on no execution ha^'ing been taken out between cer- 
 tain 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. 343. So, also, a prior voluntary convej'ance by the purchaser's grantor is 
 no sufficient objection to the title, the court acting upon the presumption that the 
 voluntary convej'ance had not been validated by subsequent dealings. Butter- 
 field v. Heath, 15 Beav. 408; Buckle v. Mitchell, 18 Ves. 100. 
 
 ° This point, the author says, has given rise to some diversity of opinion. In 
 Hartley v. Smith, 6 Buck Bankr. C. 368, the title depended on a grant of chat- 
 tels, possession of which was conditionally reserved by the grantor in fraud, it 
 was alleged, of creditors. The purchaser was relieved from the bargain on the 
 ground that he had no adequate means of ascertaining the bona fides of the trans- 
 action. 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. 338; Green v. Pulsford, 3 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; Morrison v. Arnold, 19 Ves. 670; Weddall 
 V. Nixon, 17 Beav. 160; McOulloch v. Gregory, 3 K. & J. 13. Jacobs v. Mor- 
 rison, 136 N. Y. 101; 33 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 nothing to show that the trustee did not properly 
 account to the cestui que trust, and the property having been frequently trans- 
 ferred 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 pur- 
 chase 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; 33 
 Am. Dec. 393. 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 hus- 
 band'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. Con- 
 86 
 
632 MARKETABLE TITLE TO EEAL ESTATE. 
 
 to take a title wliicli is open to attack on the ground of fraud or 
 bad faith on the part of one through whom the title is derived.^ 
 Thus, where a convejance 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 piii- 
 cliase was made in good faith, without notice and for valuable 
 consideration, it was held that a purchaser could not be compelled 
 to accept a title dependent upon such conveyance.^ 
 
 § 286. DOCTRINE or DOTJBTFUI, TITLES AT LAW. Eelief to 
 a purchaser in respect to a title absolutely had and not merely 
 
 don, 71 Md. 620; 18 Atl. Rep. 813. As to the effect of payment by the husband 
 for property conveyed to the wife, see Seldner v, McCreery, 75 Md. 287; 23 Atl. 
 Rep. 611. 
 
 ' Prelsseuger v. Sharp, 39 St. Rep. (X. Y.) '260; 14 X, 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. Sec, 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: McPhersou v. Smith, 49 Hun (X, Y.), 2.54; 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 (X. Y.), 354; 3 N. Y. Supp. 6:X 
 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 X. 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 himself ; Wohlfarth v. Chamberlain. 6 
 X. 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.) 390. In Gans v. Renshaw, 3 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. 
 
 - Tillotson V. Gesner, 33 N. J. Eq. 313. 
 
OF DOUBTFDI, TITLES. 
 
 683 
 
 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 defense.^ 
 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 tliat, 
 the vendor cannot perform the contract ; or to a bill against him 
 for specific performance he may show as a defense the complainant's, 
 want of title.^ But in respect to a merely doubtful title, one which 
 might upon protracted and expensive litigation with tliird parties,, 
 prove valid, the purchaser had under the common-law procedure 
 no relief ; all titles being considered at law either good or bad.^ 
 Thus, if in ah 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 arising upon points, 
 of law or upon facts affecting the title, judgment for the plaintiff 
 followed, and the purchaser was left to his remedy, if any, in equity.* 
 Such was former!}' the state of the law in England, and it is per- 
 haps the same in some of the American States to-day. But now, 
 by virtue of express statutory provision in England,'^ and in conse- 
 quence of statutes in many of the States abolishing all distinctions, 
 between legal and equitable procedure, the purchaser may have the 
 
 ' Ante, p. 3, Dart Vend. 973. Stevens v. Austin, 7 Jur. (N. S.) 873. 
 
 ' Ante, p. 3, Dart Vend. 982. 
 
 M 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 Eyke 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 exists. 1 Sugd. Vend. 
 (8th Am. ed.) 597. 
 
 *Moore v. Williams, 115 N. Y. 586; 22 N. E. Rep. 233. 
 
 '1 Sugd. Vend. (8th ed.) 597; 17 & 18 Vict. c. 125, § 83. 
 
■684 MAEKETABLE TITLE TO EEAL ESTATE. 
 
 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.' In some of the States which retain the separate legal and 
 equitable jurisdiction, a statutory provision exists allowing the 
 defendant in an action on a contract to avail himself of any matter 
 which would enable him to relief in equity as a defense to the 
 action.^ Under such provisions it is presumed that the purchaser, 
 when sued for tlie price 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 common law is in full force, and that a purchaser must seek 
 his relief in equity by siiit for rescission, or injunction against the 
 vendor's action at law, in a case where the title is doiibtful. 
 
 While, as we have seen, under modern systems of procedure, the 
 purchaser may avail himself at law of the objection or defense that 
 
 ' 3 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; 23 N. E. Rep. 233, 
 disapproving Romilly v. James, 6 Taunt. 268. O'Reilly v. King, 3 Roh. (N. Y.) 
 587; M. E. Church Home v. Thompson, 52 N. Y. Super. Ct. 321, and Bayliss v. 
 Stimson, 53 N. Y. Super. Ct. 335. Other New Yorli cases which follow O'Reilly 
 V. King, supra, or maintain the same doctrine, and which must he 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.), 811, 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 hack the purchase 
 money on the ground that the title is insufficient. Moore v. Williams, 115 N". Y. 
 586; 23 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 l)e allowed to recover. Murray 
 V. EUis, 113 Pa. St. 492; 3 Atl. Rep. 845; Hertzberg v. Irwin, 11 ISTorris (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 perform- 
 ance. Reynolds v. Strong, 83 Ilun (N. Y.), 202; 31 N. Y. Supp. 329. Whatever 
 absolves a purchaser in equity from his obligation to complete the contract, will 
 discharge hira at law. Taylor v. Williams, (Colo.) 31 Pac. Rep. 505. Schroeder 
 V. Witham, 66 Cal. 636; 6 Pac. Rep. 737. 
 
 'It is so provided in Virginia, Code, 1887, § 3299. 
 
OF DOtTBTFUL TITLES. 685 
 
 the title is doubtful or unmai'ketable 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 
 expenses, unless he can show that the title is absolutely bad.' Prac- 
 
 ' Ingalls V. Hahn, 47 Hun (N. Y.), 104, which was an action to recover hack 
 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 
 he kept in mind lest the principles governing it he confounded with those relat- 
 ing to actions of a different character. This is not an action to require the ven- 
 dee 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 con- 
 tract 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 bringing it must satisfy the court that the 
 title offered is absolutely had. It will not be sufficient to show that it is doubt- 
 ful. Romilly v. James, 6 Taunt. 263; Boyman v. Gutch, 7 Bing. 379; Cam- 
 field V. Gilbert, 4 Esp. 381. O'Reilly v. King, 2 Rob. (N. Y.) 587; M. E. Church 
 Home V. Thompson, 20 J. & S. (N. Y.) 321; Bayliss v. Stinson, 21 J. & S. (N. 
 Y.) 325. 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 he 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 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, 844. 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 con- 
 tract 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. & S. (N. Y.) 325, and Walton v. Weeks, 41 Hun (N. Y.), 
 811, 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 reeomr boxk his deposit unless the title is shown to he abso- 
 lutely 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. 198, and 
 Moore v. Williams, 115 N. Y. 586; 22 N. E. Rep. 388. It is to be observed, how- 
 ever, that these two last-mentioned cases do not in terms disapprove the proposi- 
 tion that a purchaser cannot recover liquidated damages, or damages for the loss 
 of his bargain, when the title is merely doubtful and not absolutely had, 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 Kraemer v. Adelsberger, 55 N. Y. Super. Ct. 245, 
 
f)86 MARKETABLE TITLE TO REAL ESTATE. 
 
 tically the distinction is of little value, except in cases in which the 
 contract fixes a sum as liquidated damages, and except in those juris- 
 dictions 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. 
 
 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.^ Such a title, however, it seems would 
 be regarded at law as absolutely bad and not merely doubtful.^ 
 
 § 287. INCONCLTJSIVENESS OF JUDGMENT OR 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 diflierent court with different lights upon 
 the subject might pronounce a judgment subversive of the title 
 whicli the purchaser was compelled to take.^ The same observations 
 
 "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. 
 S34; 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 v. Payne, 11 N. Y. Supp. 31; Warren v. Banning, 21 N. Y". Supp. 
 883. In Pennsylvania, 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 NicoU 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 decision in 
 Kent V. Allen, supra, was not adverted to. 
 
 ' 1 Sugd. Vend. (8th Am. ed.) 603, citing Gibson v. Spurrier, Peake Ad. Cas. 
 49. 
 
 » 1 Sugd. Vend. (8th Am. ed.) 597 (400). Simmons v. Haseltine, 5 C. B. 554. 
 
 'Pyrke v. Waddingham, 10 Hare, 1. Morgan v. Morgan, 2 Wh. (U. 8.) 290. 
 Irving v. Campbell, 121 N. Y. 353; 24 N. E. Rep. 821; Abbott v. James, 111 
 
OF DOUBTFUL TITLES. 687 
 
 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 pre- 
 sented might be changed upon a new inquiry.^ 
 
 It has been said that it is only necessary, in determining whether 
 a title is marketable, to ascertain whether or not there is some practi- 
 cal 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.^ On questions 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.^ But if all parties 
 in interest are before the court the objection that the title is doubt- 
 
 N. y. 673; 19 N. E. Rep. 434; Kilpatrick v. Barron, 125 N. Y. 751; 26 N. E. 
 Rep. 985; Fisher v. Wilcox, 77 Hun (N. Y.), 208, Lockhart v. Smith, 47 La. 
 Ann. ; 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. 0. (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 liiing when the power was to he 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. 
 
 ' Fleming v. Burnham, 100 N. Y. 10; 2 N. E. Rep. 905; Vought v. Williams, 
 120 N. Y. 253; 24 N. E. Rep. 195. 
 
 = Argall V. Raynor, 20 Hun (N. Y.), 267. 
 
 spyrke v. Waddingham, 10 Hare, 1. Sohier v. Williams, 1 Curt. C. C. (U. S.) 
 479. Mr. Fry 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 v. Richardson, 9 Ha. 701. If, 
 
688 MARKETABLE TITLE TO EEAL ESTATE. 
 
 ful, 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.^ It is to be observed in 
 this connection, that the rule which forbids the adjudication of a 
 question of title, where all the parties in interest are not before the 
 court, does not apply as between vendor and purchaser, when the 
 objection is made that the title is defective,^ though, of course, the 
 rights of persons not before the court cannot be concluded by such 
 an adjudication. The uncertainty as to what judgment another 
 court may render upon the same state of facts or question of law is 
 that which makes the title doubtful. 
 
 In some of the American States, under modern systems of civil 
 procedure in wliich 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 
 
 therefore, there be any reasonable chance that some third person maj' raise a ques- 
 tion against the owner of the estate after the completion of the contract, the 
 court may consider this to be a circumstance 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 sup- 
 porting both alternatives, and without having heard the evidence they might 
 have to produce, and the arguments thej^ 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. 
 
 1 Chesman V. Cummings, 142 Mass. 65; 7 N. E. Rep. 13, citing Sohier v. Wil- 
 liams, 1 Curt. (C. C.) 479. Butts v. Andrews, 136 JIass. 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. 
 
 = Lockman v. Reilly, 10 Abb. N. Cas. OST. Y.) 351. 
 
OF DOUBTFUL TITLES . 689 
 
 be final and conclusive upon all parties in interest,^ except, of course, 
 Buch as are not sui juris. In those States in which the separate equit- 
 able 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 Iiis title as against an adverse claimant. 
 § 288. SPECIAL AGREEMENTS RESPECTING THE TITLE. The 
 right of a purchaser to reject a doubtful title depends, of course, 
 upon the terras of his contract.^ He will have no such right if he 
 has agreed to accept the title such as it is.' 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," * 
 
 1 Cooper V. Siugleton, 19 Tex. 267; 70 Am. Dec. 333, did.; Estell v. Cole, 53 
 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 Pro- 
 cedure 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. Hawliins, 1 Dana (Ky.), 308; Harris v. Smith, 3 
 Dana (Ky.), 11. 12; Denny v. Wicliliff, 1 Met. (Ky.) 316. See, also, Story Eq. 
 PL § 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 so; that is the vendor's duty. Prewitt v. Graves, .5 .J. J. Marsh. 
 (Ky.) 114, 126. 
 
 'Ante, p. 38. A stipulation that the title shall be "first class," means simply 
 that it shall be marketable. Vought v. Williams, 120 N. Y. 358; 24 N. E. Rep. 
 195. "If title on examination be found insufficient," in^ 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. T.) 408, 415. 
 
 8 Ante, p. 36. Hume v. Pocock, L. R., 1 Eq. 428, 663. Brown v. Haff, 5 
 Paige (N. Y.), 334, 341. Crawley v. Timberlake, 2 Ired. Eq. (N. C.) 460, dictum. 
 Powell V. Conant, 83 Mich. 396. An agreement by assignees in bankruptcy, who 
 had a defective title, that the purchaser should have an assignment of the bank- 
 rupt's interest under such title as he lately held the same, was held to be sale of 
 only such title as the assignees had. Freme v. Wright, 4 Madd. 364; Molloy v. 
 Sterne, 1 Dru. & Wal. 585; Lethbridge v. Kirkman, 35 L. J. (N. S.) 89; Phipps v. 
 Child, 9 Drew. 709; Taylor v. Martinrtale, 1 Y. & Coll. C. C. 658; Nouaille v. 
 Plight, 7 Beav. 531. 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's 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. 
 
 87 
 
690 MAEKETABLE TITLE TO EEAL ESTATE. 
 
 nor if he obliges himself to deliver an abstract showing a good 
 title.' If the contract provides that the abstract shall show a mar- 
 ketable title, the vendor will not be permitted to show by evidence 
 aliunde that the title is good,^ nor will the purchaser be required to 
 go outside of the abstract in examining tlie title.^ 
 
 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.* An 
 agreement that the title shall be satisfactory to the purchaser's 
 attorney will justify the purchaser in rescinding the contract if the 
 
 ' In Smith v. Taylor, 83 Cal. 534; 23 Pac. Rep. 217, it was held that the only 
 fair interpretation of a contract providing that an abstract of title should he 
 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 n good 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 per- 
 sons 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. 359; 31 Pac. Rep. 504. 
 
 'Parker v. Porter, 11 111. App. 602. 
 
 ' Horn V. Butler, 39 Slinn. 515; 40 N. W. Rep. 833, dictum. 
 
 ^ Swain v. Burnetts, 89 Cal. 564; 26 Pac. Rep. 1093. Averett v. Lipscombe, 
 76 Va. 404. In this case the auctioneer had announced at the sale that any pur- 
 chaser 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. Bueks, J., 
 delivering the opinion of the court, said; " It is immaterial 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 himself the mat- 
 ter 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. 334. Giles v. Paxson, 40 Fed. Rep. 
 288, where Die 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. 
 
OF DOUBTFUL TITLES. 691 
 
 attorney in good faith, and not capriciously, declare himself dissatis- 
 fied with the title.' 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 pronounce 
 against the title, the purchaser may reject it, even though the vendor 
 be able to remove the objections.^ 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.^ 
 
 On the other hand, an agreement that the title shall be satisfactory 
 to the purchaser has been construed, in effect, to mean that the title 
 shall be such as he should be satisiied with, and that such an agree- 
 ment does not authorize him to make capricious or unreasonable 
 objections,* nor constitute him the sole judge of the sufficiency of 
 
 iChurcli V, ShaukliD, 95 Cal. 626; 30 Pac. Kep. 789. A contract provided that 
 the vendor's title should he satisfactory to the purchaser's attorneys. After the 
 ahstract was furnished the attorneys made certain requisitions which were 
 promptly honored at a considerable expense to the vendor, and the attorneys, 
 by implication, expressed themselves as satisfied with the title. Held, that the 
 attorneys could not thereafter arbitrarily and abruptly declare the title unsatis- 
 factory and the contract at an end. Boyd v. Ilallowell, (Minn.) 63 N. W. Rep. 
 125. "Where the agreement was that the title shonld 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. Presbrey v. KUne, 
 20 D. C. 513, 529. 
 
 = Delafleld v. James, 18 Abb. Pr. (N. Y.) 221; 37 How. Pr. 357, citing 
 Williams v. Edwards, 3 Sim. 78; 3 Eng. Ch. Rep. 79, See Thompsom v. Avery, 
 (Utah) 39 Pac. Rep. 829. 
 
 « 1 Sugd. Vend. (8th Am. ed.) 537. Camfleld v. Gilbert, 4 Esp. 221. 
 
 * Dart's Vend. (5th ed.) 158, where it is said that such an agreement means that 
 the title shall be marketable. Lord v. Stephens, 1 Yo. & Coll. Ex. 223. Fagan. 
 V. Davison, 2 Duer (N. Y.), 153. Kirkland v. Little, 41 Tex. 456. Taylor v. 
 Williams, 45 Mo. 80. Where the contract 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 may, nevertheless, 
 show that the title is marketable. Flannigan v. Fox, 38 N. Y. Supp. 344. 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. Flem- 
 ing, 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. 330; 33 N. E. Rep. 406. 
 
692 MAEKETABLE TITLE TO REAL ESTATE. 
 
 the title,' nor deprive the vendor of the right to perfect the title 
 where time is not of the essence of the contract,^ nor justify the 
 purchaser in rejecting the title by a simple expression of dissatis- 
 faction.' The dissatisfaction of the purchaser must be founded 
 upon a valid and legal objection.* Of course the parties may contract 
 if they choose, that the purchaser may abandon the sale arbitrarily and 
 without assigning reasons therefor, but such a construction will not 
 be given to the agreement that the title shall be satisfactory to the 
 purchaser, agreeably to the maxim ut res magis valeat quam pereat. 
 % 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.^ He can- 
 not be required to take a doubtful title which he must fortify, if 
 impugned, by resoi-ting to evidence perishable in its nature, and 
 possibly unavailable to him when the necessity for it occurs.^ 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. 
 If those facts be clearly sufficient to establish the right of the vendor 
 as heir, it is apprehended that the purchaser could not object to the 
 title simply because it could not be established by record evidence.' 
 
 ' Folliard v. Wallace, 2 Johns. (N. Y.) 395, per Kent, Ch.; Regney v. Coles, 6 
 Boaw. (N. Y.) 479. 
 
 'Anderson v. Strasberger, 93 Cal. 38; 37 Pac. Rep. 1095. 
 
 3 Beardslee v. Underliill, 37 N. .T. L. 309. 
 
 * Kirkland v. Little, 41 Tex. 456. 
 
 ' 3 Beacli 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. A purchaser cannot be com- 
 pelled to accept a title dependent upon an estoppel in pais. MuUins v. Aiken, 3 
 Heisk. (Tenn.) 535; Topp v. White, 12 Heisk. (Tenn.) 105. Where the question 
 was whether certain testimony sufficiently established the execution of a deed 
 which would supph' a missing link in the chain of title, the title was held 
 unmarketable. GrifHn 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. 
 
 « 3 Beach Mod. Eq. Jur. § 608. 
 
 ' See 3 Sugd. Vend. (8th Am. ed.) 24 (435), 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 
 
OF DOUBTFUL TITLES. 
 
 693 
 
 But a different case is presented where the fact of inheritance 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 unmarketable from the 
 necessity of parol proof to remove the doubts which surround it. 
 The court must determine in each ease whether the circum- 
 stances alleged ai"e sufficient to create a reasonable doubt as to 
 the existence of tlie 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.' 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.^ Both of these statements are to be qualitied, it is appre- 
 hended, to this extent, namely, that, in those States in which the 
 registration of deeds is necessary to their validity, the vendor need 
 only show a prima facie valid record title. The record title may be 
 apparently perfect, though in fact worthless, for some conveyance 
 in the vendor's chain of title may have been inoperative to pass the 
 title by reason of the infancy, coverture or lunacy of tlie grantor, 
 or for some other reason which the record would not disclose ; yet 
 it would hardly be contended tliat the vendor must show affirma- 
 tively 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 cliain of 
 title would render the title doubtful and such as the purchaser could 
 not be required to accept.^ But it is obvious that such a break may 
 
 supporting that title, it is necessary to show that such a person died intestate, or 
 any other fact — if the facts are alleged with sufficient specification on the 
 abstract — then that abstract shows a good title, although the proof of the matters 
 shown may be the subject of ulterior investigation. "While it may not appear 
 that a vendor claiming as sole heir is not in fact such, yet, if it cannot be made 
 to appear beyond a reasonable doubt that there is in fact no other heir to the 
 property, the title will be held unmarketable. "Walton v. Meeks, 120 N. Y. 79, 
 83; 33 N. E. Rep. 115. 
 
 1 Turner v. McDonald, 76 Cal. 180; 18 Pac. Rep. 363; Reynolds v. Borel, 86 
 Cal. 538; 35 Pac. Rep. 67. Meeks v. Garner, 93 Ala. 17; 8 So. Rep. 878. 
 
 'Calhoon 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. 
 
 s "Wilson V. Jeffries, 4 J. J. M. (Ky.) 494. 
 
694 MARKETABLE TITLE TO KEAL ESTATE. 
 
 be satisfactorily explained so as to leave no imputation upon the title, 
 as where the estate passed by descent, instead of purchase, from one 
 of the vendor's predecessors in title to another ; and that the title 
 will not be rendered unmarketable by the fact that parol evidence 
 must be resorted to for that purpose. If the fact or facts upon 
 which the title depends be of a nature not susceptible of proof, the 
 title will be deemed unmarketa!)le.' 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,^ or that a certain deed was not fraudulent.^ 
 
 When the purcliaser 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.* If satisfactory means are at hand for 
 investigating and removing the doubt, the court will decree specific 
 performance.^ Defects in the record or paper title may be cured or 
 removed by parol evidence, and the purchaser compelled to take 
 the title.* The vendor's bill for specific performance will be 
 retained until the doubts about the title are either removed or 
 confirmed.' But it is conceived that such evidence nmst convince 
 the court that there is no probability that the title of the purchaser 
 
 11 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. 
 
 ■■l Sugd. Vend. (8th Am. ed.) 589. Osbaldistoo v. Askew, 1 Russ. 160; Bent- 
 ley 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 certain facts from 
 which it might be determined whether or not the title was marketable. Hed- 
 derley v. Johnson, 43 Minn. 443; 44 N. W. Rep. 527. 
 
 * Kostenbader v. Spotts, 80 Pa. St. 430. Hedderley v. Johnson, 43 Minn, 443; 
 44 N. W. Rep. 537. 
 
 «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, 3 Duer (N. Y.), 153; Brooklyn Park Com. v. Armstrong, 45 N. Y. 
 234; Murray v. Harway, 56 N. Y. 337; Shriver v. Shriver, 86 N. Y. 575. 
 
 'Seymour v. Delancey, Hopk. Ch. (N. Y.) 436 (495); 14 Am. Dec. 552. 
 
OF DOUBTFUL TITLES. 695 
 
 will ever be attacked by a stranger having color of title, or that, if 
 attacked, the purchaser must, of necessity, have at hand the means 
 of showing that the attack cannot be sustained. 
 
 § 290. EaXJITABLE 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,' 
 or a title which is controverted in good faith by an adverse claim- 
 ant.^ It would seem, however, that such titles are not merely 
 " doubtful " in the technical sense of that term, but absolutelj'' 
 
 ' 1 Sugd. Vend. (8th Am. ed.) 579. Abel v. Hethcote, 3 Ves. Jr. 100; Cooper 
 V. Denne, 1 Ves. Jr. 565; Freeland v. Pearson, L. R., 7 Eq. 346. Morris v. 
 Mowatt, 3 Paige Ch. (N. Y.) 586; 28 Am. Dec. 661. Waggoner v. Waggoner, 3 
 T. B. Mon. (Ky.) 556. Jones v. Taylor, 7 Tex. 240; 56 Am. Dec. 48; Littlefield 
 V. Tinsley, 36 Tex. 353. Pagan v. Gaither, 11 Gill & J. (Md.) 472. Hendricks 
 T. Gillespie, 31 Grat. (Va.) 181, 194. Reed v. Noe, 9 Yerg. (Tenn.) 383, 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 conveyance from the 
 government by reason of its failure to pay the costs of surveying the land. 
 Coburn v. Haley, 57 Me. 347. A purchaser cannot be required to take an equi- 
 table title when the facts constituting the equity rest only in parol and are liable 
 to be shortly incapable of proof. Owings v. Baldwin, 8 Gill (Md.), 887. While 
 the purchaser cannot be compelled to take an equitable title, it is to be remem- 
 bered that the vendor will, if time is not material, be allowed time in which to 
 get in the legal title. Post, ch. 33. Andrew v. Baboock, (Conn.) 26 Atl. Rep. 
 715. In Jones v. Haff, 86 Tex. 678, it would seem at the first glance that the 
 court held that the purchaser could be compelled to take an equitable title, but a 
 careful examination of the case shows that the vendor's title was really legal. 
 The title of a remote predecessor of the vendor had been equitable only, consist- 
 ing of a " bond for title," but there had been mesne conveyances down to the 
 vendor, and he was in possession under a conveyance. Nothing more seems to 
 have been decided in the case than that a legal title could not be rejected on the 
 ground that it had been equitable only in its inception, assuming that the original 
 equitable 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. A Us 2xndens 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.) 854, 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.) 443; 25 Am. Dec. 656, A sale of land for 
 
696 ■ MARKETABLE TITLE TO EEAL ESTATE. 
 
 defective. It is obvious that a title cannot be rendered unmarket- 
 able by a mere naked adverse claim to the premises without color of 
 title ; otherwise a purchaser might always avoid performance of his 
 contract by procuring a stranger to set up such a claim.' But if 
 
 delinquent taxes puts a cloud on the title and renders it unmarketable. Wilson 
 V. Tappan, 6 Ohio, 172. So, also, a suit attacking the validity of a will under 
 which the vendor holds. Hale v. Cravener, 128 111. 408, affirming 27 111. 
 App. 275. But if the person in whom is the alleged adverse title acquiesces in 
 the vendor's claim to the title, the purchaser cannot refuse to perform the con- 
 tract. 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 pur- 
 chaser never having complied with the terms of the sale, nor during twelve years 
 laid any claim to the property, constituted no such objection to the title as would 
 justify a rescission at the suit of the second purchaser. If any person has an 
 interest in or claim to the estate which he may enforce, the purchaser cannot be 
 compelled to tako the estate, no matter how improbable it is that the claim will 
 be enforced. Cunningham c. Sharp, 11 Humph. (Tenn.) 116. Dobbs v. Nor- 
 cross, 24 N. J. Eq. 327. King v. Knapp, 59 N. Y. 462. The purchaser ca:nnot 
 be compelled 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.) 482. An alleged adverse claim unsus- 
 tained by record evidence does not make a title doubtful. Allen v. Phillip, 2 
 Lift. (Ky.) 1. A purchaser maj^ be compelled to take the title if it appears that 
 the adverse claim has been derided, barred or released. Jackson v. Murray, 5 
 T. B. Mon. (Ky.) 184; 17 Am. Dec. 53. It is not a conclusive objection to the 
 title that a third party has filed a bill against the seller, claiming a right to the 
 estate, but the nature of the adverse claim will be looked into. 1 Sugd. Vend. 
 (8th Am. ed.)589, citing 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 
 Prancis v, Hazelrig, 1 A. K. Marsh. (Ky.) 98, the contract provided that the 
 vendor should convey "a clear and indisputable title." The purchaser con- 
 tended that the interference of a junior patent with a senior patent rendered the 
 title under the senior patent disputable and cloudy, but the court said: "An 
 indisputable title is one which, according to the literal import of the term, can- 
 not 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, without doubt, the true sense of the contract. A different construction 
 would render it impossible to perform the contract, for there can be no title 
 which may not be wrongfully disputed. It follows, therefore, as the junior 
 title confers no legal right to dispute the title derived under an elder patent, that 
 the latter, notwithstanding the Interference, will be, in the true sense of the term, 
 indisputable. The contract had been executed by a conveyance with warranty 
 in this case, but the foregoing observations would apply with equal force where 
 
OF DOUBTFUL TITLES. 
 
 697 
 
 there be color of outstanding title which may 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.' Of course the title 
 ■will be held unmarketable where there are two conflicting record 
 titles to the property.^ An exception to the rule that a purchaser 
 will not be compelled to take an equitable title lias 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.^ 
 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.* 
 
 The purchaser cannot be compelled to take a title which is already 
 in litigation or which will probably involve him in litigation ; he 
 cannot be required to purchase a law suit.'' Upon the same prin- 
 ciple, the purchaser cannot be compelled to accept the title, if the 
 premises are in the possession of an adverse claimant.^ 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 con- 
 veyance from one who had executed a prior voluntary conveyance 
 of the premises, even though the purchase was made with notice of 
 such prior conveyance.''^ If there be a reasonable doubt, however, 
 as to whether the prior conveyance was in fact without valuable 
 consideration, it is apprehended that the subsequent purchaser could 
 not be compelled to take tlie title. Besides the vexation and 
 
 the contract is executory. In Edwards v. A'an Bibber, 1 Leigh (Va.), 183, a 
 vendor was jjermitted to show that an escheat of the estate in controversy to the 
 Commonwealth for default of heirs of a former owner who had sold the estate but 
 died before conveying it, was unsustained by the facts, and not enforcibleby the 
 Commonwealth; and the purchaser was compelled to take the title. 
 
 ' Speakman v. Forepaugh, 44 Pa. St. 373; Herman v. Somers, 158 Pa. St. 424. 
 
 « Reydell v. Reydell, 31 N. Y. Supp. 1. 
 
 n Sugd. Vend. (8th Am. ed.) 593 (338). 
 
 ■> Powell V. Powell, 6 Madd. 63. 
 
 'Ante, p. 677. James v. Mayer, 41 La. Ann. 1100; 7 So. Rep. 618; Lyman v. 
 Stroudbaugh, 47 La. Ann. 71 ; 16 So. Rep. 662. 
 
 ' Williams v. Carter, 3 Dana (Ky.), 198. 
 
 ' 1 Sudg. Vend. (8th Am. ed.) 586; Id. ch. 23. Butterfield v. Heath, 15 Beav. 
 408; Humphreys v. Moses, 2 W. Bl. 1019; Currie v. Nind, 1 Myl. & Cr. 17. 
 88 
 
698 MARKETABLE TITLE TO EEAL ESTATE. 
 
 expense of the suit, the purchaser would run the risk of being 
 unable to show that tlie conveyance was voluntary. The probability 
 or possibility of a law suit is of course uo objection to the title 
 where the purchaser is or may be let into the possession, and the 
 suit must inevitably terminate in his favor ; for there is no title 
 however good tliat 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 pin-chaser to get possession should 
 be necessary. In ejectment the plaintiff must show title in himself, 
 a proceeding which usually 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 pnncipal 
 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 equi- 
 table title has been extended to a ease in which the legal title was 
 outstanding in a trustee, though the trustee might be compelled to 
 convey at any time.' 
 
 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.^ Afurtiori he cannot rescind where he has agreed 
 to postpone the execution of the contract until a suit involving the 
 title is determined.^ ISTor can he object that the vendor lias only an 
 equitable title, if he buys with knowledge of that fact and the con- 
 tract does not provide tliat he shall have the legal title before the 
 time to convey arrives.^ 
 
 § 291. DEFEASIBLE ESTATES. A purchaser who, under his 
 contract, is entitled to demand a conveyance of an indefeasible 
 estate in fee simple, cannot be required to take an estate defeasible 
 upon tlie happening of a certain event or upon a certain contin- 
 gency.'^ This is not so much upon the ground that it is doubtful 
 
 1 Murray v. Ellis, 112 Pa, St. 485; .3 Atl. Rep. 845. 
 'Ante. p. 194. 
 
 2 Hale V. Gravener, 138 111. 408; 21 N. E. Rep. 534. Holmes v. Richards, 67 
 Ala. 577. 
 
 * Gray v. Hill, (Mich.) 63 N. W. Rep. 77. 
 
 'See Mr. Austin Abbot's note to Moore v. Williams, 23 Abb. N. Cas. (N. Y.) 
 416. The liability of an estate to defeat by the birth of issue capable of taking 
 
OF DOUBTFUL TITLES. 
 
 699 
 
 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 allega- 
 tion can be sustained, the title becomes doubtful 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 perceived why the piirchaser 
 should not be compelled to take the title.^ 
 
 § 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 sutiBcient to bar the rights of any 
 
 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 WaI/WORtii in Seaman v. Hicks, 8 Paige (N. Y.), 653 : 
 " 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 indefeasible estate of inheritance in fee simple. For it might be con- 
 sidered 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, but would also pro- 
 create heirs to divest the estate determinable upon that event. But certainly no 
 lawyer could for a moment suppose that a vendee, who had contracted for a 
 good title, was bound to accept an estate which depended upon a contingency of 
 that nature; unless the fact was satisfactorily established that it was phy- 
 sically impossible that the event which was to determine the estate should ever 
 happen.'' 
 
 ' Seamam v. Hicks, 8 Paige (N. Y.), 655, 658, dictum. A title derived through 
 a sale in proceedings for a partition, is not rendered unmarketable by the fact 
 that persons not in esse at the time of the sale may come into existence and be 
 entitled to share in the property; as where lands are devised to the testator's 
 grandchildren, and at the time of a partition of the property, there is a possi- 
 bility that grandchildren may be born thereafter who would be entitled to come 
 into partition. Wills v. Slade, 6 Ves. 498. Especially is this true under statutes 
 which provide that those entitled to a reversion, remainder or inheritance, shall 
 be bound by a judgment in partition. Cheesman v. Thorne, 1 Edw. Ch. (N. Y.) 
 629. 
 
700 MABKBTABLB TITLE TO BEAL ESTATE. 
 
 possible adverse claimant.' There are cases whicli apparently deny 
 this proposition,^ but in most of them it will be found that the facts 
 tending to establish the adverse jjossession for the required lengtli 
 
 >1 Sugd. Vend. (8th Am. ed.) 41, 584; Sid. 101; Atk. Marketable Title, 396, 
 403. See, generally, the cases cited throughout this subdivision. 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; KirkTvood v. Lloyd, 12 Ir. Eq. 585; 
 Stewart v. Conyngham, 1 Ir. Ch. C. 534; Hyde v. Dallaway, 6 Jur. 119. See, 
 also, Emery v. Grocock, 6 Madd. 54; Barnwall v. Harris, 1 Taunt. 430; Causton 
 v. Macklew, 3 Sim. 243; Martin v. Cotter, 3 Jon. & La. T. 496; Maginnis v. Fal- 
 lon, 2 Moll. 566; Bolton v. School Hoard, L. P., 7 Ch. Div. 766; Hilary v. Waller, 
 12 Ves. 339; Thompson v. Milliken, 9 Grant Ch. (Can.) 359. Wieland v. Renner, 
 65 How. Pr. (N. Y.) 245; Meyer v. Boyd, 51 Hun (N. Y.), 391; 4N. Y. Slipp. 328; 
 Ford V, Schlosser, 34 N. Y. Supp. 12. 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. Foulda, 
 (Ky.) 13 S. W. Rep. 139; Thacker v. Booth, (Ky.) 6 S. W. Rep. 460. Bryan v. 
 Osborne, 61 Ga. 51, dictum. Lurman v. Hubner, 75 Md. 269; 23 Atl. Rep 646; 
 Foreman v, Wolf, (Md.) 29 Atl. Rep. 837. Upon the general proposition that the 
 Statute of Limitations vests a i^erfect title in the occupant, see Bicknell v. Com- 
 stock, 113 U. S. 149; Letfingwell v. Warren, 3 Black (U. S.), 599; Croxall v. 
 Sherrard, 5 Wall. (U. S.) 289; Dickerson v. Colgrove, 109 TJ. S. 578; Harpenlng 
 V. Dutch Church, 16 Pet. (U. S.) 455. Cox v. Cox, 18 D. C. 1. In Edwards v. 
 Morris, 1 Ohio, 534, 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. Gramiing, 33 So. Car. 367; 11 S. E. Rep. 1081. In Gaines v. 
 Jones, 86 Ky. 537; 7 S. W. Rep. 35, the premises had been bought and paid for 
 by a prior purchaser, but by mistake had been omitted from a deed to him. Pos- 
 session 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. 
 Wasson, 6 J. J. Marsh. (Ky .) 618, where the vendor had had thirty years' uninter- 
 rupted possession. Abrams v. Rhoncr, 44 Hun (N. Y.), 507, ninety years. Lyles 
 V. Kirkpatrick, 9 S. C. 365, where it was held that possession under a deed for 
 more than ten years, the statutory period of limitation, cured the objection that 
 
 '' Eyton V. Dicken, 4 Price Ex. 303. Tevis v. Richardson, 7 B. Hon. (Ky.) 654. 
 Mott V. Mott, 68 N. Y. 346, semUe; Hartley v. James, 50 N. Y. 38, criticised in 
 Ottinger v. Strasburger, 33 Hun (N. Y.), 466, 469. Chapman v. Lee, 55 Ala. 616. 
 
 Titles not inarketahle. In the following cases, the evidence was held insufficient 
 to show that the title by adverse possession was free from doubt: Scott v. Simp- 
 
OF DOUBTFUL TITLES. 701 
 
 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 
 
 a deed, under which the vendor held, was invaUd for want of a subscribing wit- 
 ness. Edwards v. Morris, 1 Ohio, 524, forty years. Vance v. House, 5B. Mon. 
 (Ky.) 537, thirty years. An adverse, uninterrupted possession for more than 
 twenty years, without evidence that the case was within any of the exceptions of 
 the Statute of Limitations, makes the title marketable. Allen v. Phillips, 3 Litt. 
 (Ky.) 1; McCann v. Edwards, 6 B. Mon. (Ky.)308, 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 should not be required to take a title which has been made good by 
 the statute. We can see no force in the objection. So that the title be good, it mat- 
 ters not how it has been made so." Tomlinson v. Savage, 6Ired. Eq. (N. C.)430, 
 435. In Bohm v. Pay, 17 Abb. N. Cas. (N. Y.) 175, there was a missing deed in 
 the chain of title, but there had been an adverse, uninterrupted 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 partition 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 marketable. Ottinger v. Stras- 
 burger, 33 Hun (N. Y.), 466. See, also, Shober v. Button, 6 Pbila. (Pa.) 185. 
 Grady v. Ward, 20 Barb. (N. Y.) 543; O'Connor v. Huggius, 1 N. Y. Supp. 877. 
 
 son, 11 Heisk. 310. Beckwith v. Kouns, 6 B. Mon. (Ky.) 332; Lewis v. Herndon, 
 8 Litt. (Ky.) 358; 14 Am. Dec. 68; Hightower v. Smith, 5 J. J. Marsh. (Ky.) 542. 
 Shriver v. Shriver, 86 N. Y. 575; Schultze v. Rose, 65 How. Pr. (N. Y.) 75. 
 Griflin 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 statutory period under a deed which is insuffi- 
 ciently 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 
 
702 MARKETABLE TITLE TO EEAL ESTATE. 
 
 as any other title founded upon matters in pais} But if the facts 
 alleged be disputed and doubtful, speciiic 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.^ 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.' 
 
 In titles founded on the Statute of Limitations there should be evi- 
 dence 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 should 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. True, as 
 has been seen, it is a rule that a purchaser cannot be compelled to 
 take a title which, if attacked in the remote future, he can only sus- 
 tain by the testimony of witnesses, since these may, in the mean- 
 while, have become unavailable to him by death or disqualification. 
 But this rule must be given a reasonable construction, else it would 
 render unmarketable some titles of the most satisfactory kind. 
 
 doubtful and uncertain than those depending for their validity upon an adverse 
 possession under a statute of limitations." And in the following cases of doubt- 
 ful questions of law applicable to title by adverse possession, the title was held 
 unmarketable: Whether the words "other charges," in a statute providing that 
 ground rents, annuities and "other charges" should he presumed to be satisfied 
 after a certain length of time, included mortgages. Pratt v. Eby, 67 Pa. St. 
 396. Whether a statute providing that a trust for the benefit of creditors shall 
 be deemed discharged after the lapse of twenty -five years, operated retrospec- 
 tively. McCahill v. Hamilton, 30 Hun (N. Y.), 388. 
 
 • Thus, in Duvall v. Parker, 3 Duv. (Ky.) 182, it was held that the purchaser 
 must take a title dependent on thirty years' adverse possession, there being, 
 according to the evidence in that case, not the remotest probability that he would 
 ever be disturbed by an adverse claimant. 
 
 '^ 3 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 question 
 of evidence rather than of law." Eawle Govt. (5th ed.) § 56. Koyes v. John- 
 son, 139 Mass. 436; 31 N. E. Rep. 767. McCabe v. Kenny, 53 Hun (N. Y.), 514; 
 5 N. Y. Supp. 678. Boggs v. Bodkin, 33 W. Va. 566; 9 S. E. Rep. 891. 
 
 'Ottinger v. Strasburger, 33 Hun (N. Y.), 466; Shriver v. Shriver, 86 N. Y. 
 575; Adams v. Rhoner, 44 Hun (N. Y.), 507. 
 
OF DOUBTFUL TITLES. 703 
 
 Thus, title by descent is, as a general rule, to be established only by 
 the testimony of witnesses,' and not by documentary or record evi- 
 dence, yet no one for this reason ever objects that the title is unmar- 
 ketable if the means of establishing the fact of inheritance exists. 
 The same reasoning applies with equal force to titles under the Stat- 
 ute of Limitations. There must be some present ground to appre- 
 hend that the title will be disputed, and the means of sustaining it 
 unavailable to the purchaser. 
 
 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 purcliaser may be compelled to complete the 
 contract.^ It seems that if, by the express terms of the contract, 
 the purchaser is entitled to demand a " good title of I'ecord," he 
 cannot be compelled to accept a title dependent upon adverse pos- 
 session.^ And it has been decided that adverse possession can never 
 ripen into a marketable title, unless held under some assurance pur- 
 porting to convey a fee simple, or other estate equal in quantity to 
 that which the vendor undertakes to sell.'' This depends upon the 
 familiar rule that the mere naked possession of a trespasser without 
 color of title, no matter how long continued, will not bar the entry 
 of the true owner. 
 
 If the title of the party in possession has ripened under the 
 Statute of Limitations, it will not be rendered doubtful or unmarket- 
 
 ' 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 hearsay and 
 inadmissible as evidence in the courts, and are not, strictly speaking, "record" 
 evidence of title. See Warvelle Abstracts, 369. 
 
 ' McLaren v. Irvin, 63 Ga. 275. 
 
 'Page V. Greely, 75 111. 400. Noyes v. Johnson, 139 Mass, 436; 31 N. E. Eep. 
 767. Cherry v. Davis, 59 Ga. 454, semble. Payne v. Markle, 89 111. 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 provide 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. McDonald, 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. 216; Benson v. Shotwell, 87 Cal. 56; 25 Pac. Rep. 249, 
 where the agreement was that the title should be ' ' satisfactory " to the purchaser. 
 
 * Cunningham v. Sharp, 11 Humph. (Tenn.) 116. Chapman v. Lee, 55 Ala. 
 616. Kneller v. Lang, 63 Hun (N. Y.), 48; affd., 137 N. Y. 589. 
 
704 MARKETABLK TITLE TO EBAL ESTATE. 
 
 able by a subsequent statute extending the period of limitation.' 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.^ 
 
 If the vendor's title be perfected by lapse of time pending a suit 
 for rescission or specific performance, the purchaser must accept it,'' 
 unless time was material to the purchaser or was of the essence of 
 the contract.* 
 
 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.^ Generally the Statutes of Limitations in the 
 several States specify a time within which a person whose disabili- 
 ties 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 doubt- 
 ful where the extreme period of limitation had elapsed.^ If it may 
 be fairly inferred from tlie abstract that a defect arising before the 
 period at which the abstract conmiences, exists, the purchaser may 
 require that the title before that time shall be shown ; but if that be 
 not within the vendor's power the title will not be held bad upon 
 mere suspicions.'' 
 
 If the vendor set up title under the Statute of Limitations, the 
 biirden will be upon him to show that the title is good.' It will be 
 
 ' Shrivel- v. Shriver, 86 N. Y. 575. 
 
 « 2 Sugd. Vend. (8th Am. ed.) 104; Wms. Keal Prop. (Am. ed. 1886) 450 (355). 
 
 ' Wickliffe v. Lee, 6 B. Mod. (Ky.) 543. Peers v. Barnett, 12 Grat. (Va.) 410. 
 
 ■■ Post, ch. 32. Costs will be decreed against the vendor in such case. Peers 
 V. Barnett, 12 Grat. (Va.) 410. 
 
 « Brown v. Cannon, 5 Gil. (111.) 174. Tevis v. Richardson, 7 B. Mon. (Ky.)654. 
 
 « Pratt v. Eby, 67 Pa. St. 398; Shober v. Button, 6 Phila. (Pa.) 186. Ottinger 
 Strasburger, 33 Hun (N. Y.), 466; N. Y. Steam Co. v. Stern, 46 Hun (N. Y.), 206. 
 
 ' 1 Sugd. Vend. (8th Am, ed.) 552. Seymour v. Delancey, Hoplt. 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 con- 
 test the validity of such a title witli the vendor, as ho may be wholly ignorant of 
 the state of it." Knedler v. Lang, 63 Hun (N. Y), 48; 17 N. Y. Supp. 443. 
 
OF DOUBTFUL TITLES. 
 
 705 
 
 sufficient, it is appreliended, 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 tliere are any such 
 persons, and he be unable to show that there are none such, the title 
 will be deemed unmarketable.^ 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.' 
 
 In some jurisdictions a vendor, relying on a title under the 
 Statute of Limitations, will be permitted to join the persons holding 
 the apparent legal title as parties defendant in his suit against the 
 purchaser for specific performance, and have their claims deter- 
 mined.' If this practice be founded upon sound principles, no 
 reason is perceived why the vendor should not be allowed to bring 
 in such persons and adjudicate their rights in any case in which it is 
 objected that the title is doubtful, at least, in any case in which lie 
 would have a right to maintain a bill against such persons 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.* 
 
 § 293. PRESUMPTIONS FK.OM LAPSE OF TIME. Independently 
 of the Statute of Limitations, possession by the vendor and his 
 
 ' Brown v. Cannon, 5 Gil. (111.) 174. In Seymour v. Delancey, Hopk. C'ii. 
 (N. Y.) 436 (495); 14 Am. Dec. 552, it was held that if a title derived under a per- 
 son alleged to have died without heirs, be clearly adverse for a period of twenty- 
 five years, it will not he rendered unmarketable by the possibility of an escheat 
 of said person's estate, or of his having left heirs who are under disabilities. 
 
 'Phillips V. Day, 82 Cal. 24; 22 Pac. Rep. 976, citing Shriver v. Shriver, 86 
 N. Y. 575. 
 
 ^Duvall v. Parker. 2 Duv. (Ky.) 182. Ante, p. 688. 
 
 < Holmes v. Richards, 67 Ala. 577. 
 
706 MAEKETABLE TITLE TO EEAL ESTATE. 
 
 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. ^ And a 
 purchaser has in some cases been compelled to take a title dependent 
 for its validity upon a presiiuiption of the death of a person inter- 
 ested in the estate, arising from such person's absence for many 
 years without having been heard from in the meanwhile. But 
 such absence must have continued for a length of time sufficient to 
 remove any doubt that the absentee is dead.^ And it is apprehended 
 
 • English cases cited, ante, p. 700, note 1. 1 Sugd. Vend. (8th Am. ed.) 41, 584; 3 
 id. 101; Atk. Mark. Titles, 39t), 403. O'Connor v. Hudgins, 113 N. Y. 511, 531; 21 
 N. E. Rep. 184. Brassfield v. Walker, 7 B. Men. (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 he presumed to exist. White v. Poljamhe, 11 Ves. 
 344. A title may be good though there are no deeds, but there must have been such 
 a long uninterrupted possession, 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; 3 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. McAfee, 7 B. Mon. (Ky.) 379. 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 presumed after forty years' 
 adverse possession. Henderson v. Perkins, 94 Ky. 307; Jarboe v. McAfee, 7 B. 
 Mon. (Ky.)379. 3 Starkie Ev. 1221; 1 Greenl. Ev. 50. In Abrams v. Rhouer, 
 44 Hun (N. Y.), 507, it appeared that B., through whom the vendor claimed, 
 under a deed executed in 1797, had made a prior conveyance of the same prem- 
 ises, 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 pos- 
 session of, or made any claim to, the premises, and no conveyance by them to 
 any person had ever been found. Held, that the title of the vendor was market- 
 able, 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. 
 
 ' Prebdmptions of de.\th, etc.— TYHes Twt marketable. AVhether a certain 
 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. WilUams, 130 N. Y. 353; 24 N. E. Rep. 195. Seven years. 
 McDermott v. McDermott, 3 Abb. Pr. (N. S.) (N. Y.) 451. Whether certain per- 
 
OF DOUBTFUL TITLES. 707 
 
 that the circumstances must be such as to sliow, beyOnd a reason- 
 able 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 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 
 apprehended, 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 presump- 
 tions. 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 com- 
 petency of grantors through whom, and the bona fides of convey- 
 ances 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.''^ 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 any infinite number of negatives, a 
 thing as impracticable as it would be unreasonable. 
 
 sons 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 iTiarketaUe. 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; 30 N. E. Rep. 387; McComb v. Wright, 5 Johns. Ch. (N. Y.) 263. See, 
 also, Burton v. Perry, (111.) 34 N. E. Rep. 60. Whether the facts in a certain 
 case were suflQcient to sustain a title by escheat for want of heirs. In re Trustees 
 N. Y. P. E. Pub. School, 31 K Y. 574, 587. 
 
 ' In Lyman v. Gedney, 114 111. 388; 20 N. E. Rep. 382, the grantors, in a, con- 
 veyance of property which belonged to a partnership, were, after the lapse of 
 forty years, presumed to have been the persons composing the firm, the convey- 
 ance itself being silent upon that point. 
 
 « Ante, p. 693. 
 
708 MARKETABLE TITLE TO REAL ESTATE. 
 
 § 294. TITLE AS AFFECTED BY NOTICE. As a general rule a 
 purchaser cannot be compelled to perform tlie contract when the 
 vendor's title depends upon a question of notice of the rights of 
 third parties.' Thus, though a purchaser with notice, it has been 
 held, maj' safely buy from a purchaser without notice, he will not 
 be compelled to take the title, as he would incur the risk of notice 
 to his vendor being proved.^ Of course a purchaser with notice of 
 facts avoiding the title of his vendor, cannot be required to complete 
 the contract. 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.^ We have already seen that a doubt 
 as to the title resting not on proof or presumption, but on a mere 
 suspicion of mala fides, will not condemn the title as unmarketable.^ 
 
 § 295. BURDEN OF PB,OOF Inasmuch as the purchaser may 
 suffer a heavy loss if compelled to take a doubtful title, and the 
 vendor can suffer oidy 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 
 
 ' Questions of Xotire. In the following cases titles dependent upon the existence 
 of notice of the rights of third persons were held unmarketable. Whether a cert ain 
 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: ilorris 
 V. JIcMillen, 3 A. K. Marsh. (Ky.) 565. Whether a grantee of lands took with 
 notice of certain liens upon the premises; Freer v. Hesse, 4De G., M. & G. 495. 
 Whether a purchaser without notice under a foreclosure sale, was affected b}^ 
 notice to the plaintiff in the foreclosure suit: Wagner v. Hodge, 34 Hun (N. Y.), 
 534. Whether a subsequent purchaser had notice of a prior unrecorded deed 
 of the premises: Speakman v. Forepaugh, 44 Pa. St. 863. 
 
 = 1 Sugd. Vend. (8th Am. ed.) 590, 601. Freer v. Hesse, 4 De G., M. & G. 495. 
 In Bott V. Malloy, 151 Mass. 477; 35 N. E. Rep. 17, suggestions of a latent trust 
 affecting the premises in the hands of the vendor were held insufficient to render 
 the title doubtful, in view of a statute declaring trusts invalid as against a pur- 
 chaser 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. 396; 17 N. E. Rep. 549. 
 
 ■i Ante, p. 681. 
 
OF DOUBTFUL TITLES. 709 
 
 the vendor to show a title free from all reasonable doubt.' 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 disclosed 
 by the public records, or the instruments which evidence the title. 
 The competency of grantor in every deed or will in the chain of 
 title is necessary to the validity of that title, but it is plain that tlie 
 vendor cannot be required to establish such competency affirmatively 
 before it is cpiestioned by the purchaser. The same observation 
 applies to other matters in pais affecting the validity of the title, 
 excspt, 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 vendor has shown a title pre- 
 sumptively 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 does not rerpiire 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.^ 
 
 § 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 
 En2;lish cases have been collected and referred to very briefly and 
 
 ' Burroughs v. Oakley, 3 Swanst. 159. Hendricks v. Gillespie, 25 Grat. (Va.) 
 181,197, citing Sturtevant v. Jaques, 14 Allen (Mass.), 523; Richmond v. Gray, 3 
 Allen (Mass.), 25, and Griffin v. Cunningham, 19 Grat. (Va.) 571. 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 
 removing the doubt. 
 
 2 Stevenson v. Polk, 71 Iowa, 378; 83 N. W. Rep. 840. Phillips v. Day, 82 Cal. 
 24; 23 Pac. Rep. 976. 
 
 ^ Baxter v. Aubrey, 41 Mich. 16; 1 N. W. Rep. 897, citing Dwight v. Cutter, 
 8 Mich. 566; 64 Am. Dec. 105; Allen v. Atkinson, 21 Mioh. 361. 
 
710 MAEKETABLB TITLE TO EEAL ESTATE. 
 
 concisely by Lord St. Leonards, in liis work on Vendors and Pur- 
 chasers.^ Many of these are comparatively of little value to the 
 American lawyer, depending as they do, upon questions of law 
 peculiar to the English system of conveyancing and settlement of 
 estates, and laws of real property, and it is, therefore, deemed 
 unnecessary to reproduce them here. But it is believed that a col- 
 lection of American cases, stated in the same concise manner, will 
 be found useful to the profession. No attempt has been made to 
 separate the cases in which the doubt turned upon a question of 
 law from those turning upon doubtful questions of fact ; the effort 
 has been rather to arrange the cases in groups, having reference to 
 the sources from which objections to title most frequently spring. 
 It will probably be found tliat 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 solemnities 
 required by statute in such cases is not " marketable.'' It is plain, 
 however, that such a title is not only doubtful or unmarketable, but is 
 absolutely bad, for such an instrument is utterly invalid and inopera- 
 tive to convey the woman's right. If, liowever, a grave doubt should 
 arise as to whether there had been, in fact, a sufficient compliance 
 witli those requisites, and the court should be of opinion that anotlier 
 judge, or competent person, might well differ with him upon the 
 point, then the title would be, in a technical sense, not " market- 
 able," that is, doubtful. But inasmuch as all bad titles are neces- 
 sarily not marketable in the sense that purchasers cannot be com , 
 polled 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 tlie 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 acknowledgment, 
 and other matters of like kind. (2) Those which appear from the 
 public records ; such as a prior conveyance to a stranger ; or the 
 
 ' 1 Sugd. Vend. (8th Am, ed.) 583 (389). ~ 
 
OF DOUBTFUL TITLES. 711 
 
 absence of any record title whatever ; or the want of jurisdiction of 
 tlie subject-matter in judicial proceedings. (3) Those which rest in 
 parol ; that is, to be established by the testimony of witnesses, such 
 as the liappening of events upon which title depends, for example, 
 births, deaths, marriages, adverse possession, the performance or 
 happening of conditions antecedent or subsequent, the vesting of 
 contingent I'emainders, and the hke. Cases arising from each of 
 these sources will be found in the preceding pages, and in the notes 
 which follow here. 
 
 § 297. Errors and irregularities in judicial proceedings. 
 Errors, defects and irregularities in judicial proceedings, directly or 
 incidentally, for the sale of lands, are the occasion, perhaps, of 
 more objections to title than any other ground ; certainly, in cases 
 in which confirmation of the sale is resisted by the purchaser. In 
 the consideration of such objections an important rule should be 
 constantly borne in mind, namely, tliat no error, defect or irregu- 
 larity in the proceedings, sliort 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 tliis rule are chiefly two ; first, because upon reversal 
 of a judgment for error, a purchaser under the judgment cannot be 
 disturbed in his title and possession, there being only restitution of 
 the proceeds of the sale to the person aggrieved ; and, second, 
 because the judgment under which the sale or conveyance to the 
 purcliaser was made, cannot be attacked in any collateral proceed- 
 ing, by a party or privy to the judgment, except for want of juris- 
 diction to render, or fraud or niistalce in the procuration or rendition 
 of the judgment.^ It may be doubted whether in every instance, 
 cited in the notes below, in which the purchaser has been relieved 
 from his bid or his bargain, on the ground of errors and defects in 
 judicial proceedings rendering the title unmarketable, the decision 
 will stand the test of the foregoing rule, inasmuch as there is no 
 broad line of demarcation between facts which are, and those which 
 are not, sufficient to show jurisdiction in the premises. It is true 
 that most of the cases in which the rule that a title under a judicial 
 sale is not subject to collateral attack, have been those which arose 
 in ejectment by parties to the judgment or their privies, against the 
 
 ' Ante, p. 88. 
 
712 MARKETABLE TITLE TO EEAL ESTATE. 
 
 piirchaser or his privies, and not between vendor and pui'chaser ; 
 but it is apprehended that the rule would be the same in either case, 
 and that a title would not be deemed unmarketable simply because 
 of some error or irregularity in the proceedings, unless there was a 
 reasonable doubt as to whether such error was not based on facts 
 showing an absolute want of jurisdiction in the court. Of course 
 if there should be a reasonable doubt whether the court has juris- 
 diction, 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.' As a 
 general rule no such objection will be permitted after the sale has 
 been confirmed.^ The defects of which the purchaser complains 
 must be serious and real. Mere irregularities in judicial proceed- 
 ings, through wliich the title passed, capable of amendment or cor- 
 rection, will be no ground upon which to release him from his con- 
 tract.^ Nor will the purchaser be relieved if he made his bid with 
 knowledge that the title was oijen to doubt, even though his objec- 
 tion be made before confirmation of the sale.* 
 
 And it has been held that a purchaser at a sale in partition cannot 
 object that the title is doubtful. The reason given was that if 
 actual partition had been made the several partitioners could not 
 have objected to the title, each partition er taking his allotment 
 cum one re ^ If the proceedings in a suit in which a judicial sale is 
 
 ' Wilson V. ^^'hite, 109 N. ^ . 59; 15 X. E. Hep. 749; Sliriver v. Shriver, 86 
 N. Y. 575; Jordan v. Poillou, 77 N. Y. 518; Williamson v. Field, 2 Sandf. Ch. 
 (N. Y.) 533; Lee v. Lee, 37 Hun (N. Y.), 1; .McCahill v. Hamilton, 20 Hun (N. 
 Y.), 888; Argall v. Raynor, 20 Hun (N. Y.), 567. Cox v. Cox, 18 Dist. Col. 1. 
 
 'Ante, p. 77. 
 
 'Dalzellv. Crawford, 1 Pars. Sel. Cas. (Pa.) 37. An order directing a pur- 
 chaser at a judicial 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.) 588. 
 
 4 Ante, p. 79. Stewart v. Devries, (:JId.) 32 All. Rep. 285. Binford's Appeal, 
 164 Pa. St. 435; 30 Atl. Rep. 398. 
 
 '' Sebrlng 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 compeUing 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 particularly, there is no dis- 
 pute as between the parties about the title. Their rights are determined when the 
 order for partition is made. Suppose actual pai'tition might have been made in 
 
OF DOUBTFUL TITLES. 713 
 
 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 pi'O- 
 ceedings will be cured, devolves on the j^laintifE 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 he can insist upon the purchaser's com- 
 pleting the purchase.^ 
 
 this case; no notice could have been talien of incumbrances. 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 con- 
 flicting rights and equities of incumbrancers. The propertj' is divided cum onere." 
 This decision is, doubtless, sound, "where the objection is that the estate is incum- 
 bered, assuming that the court will see to the application of the purchase money 
 to the incumbrance. But it is diSicult to perceive any reason whjr 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. 
 
 1 Orouter v. Crouter, 133 K Y. 55; 30 N. E. Rep. 736. 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 lield an error that made the judg- 
 ment rendered in the suit voidable by the infants. The defect, however, was 
 curable by proper proceedings to be taken for that purpose (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 contract. 
 
 Ekkors and irbegularitibs in judicial prooebdings. — Titles held 
 dovbtfid. 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.), 234; 84 Am. Dec. 151. Want of affidavit in 
 proceedings against unknown heirs renders the title doubtful. Tevis v. Richard- 
 son, 7 B. Mon. (Ky.) 654. An insufficient printer's certificate of publication of 
 an order against unknown heirs, makes title of purchaser at judicial sale doubt- 
 ful. Tevis V. Richardson, 7 B. Mon. (Ky.) 654. Query: Whether a purchaser 
 can be compelled to accept a title under a decree against unknown heirs. Tevis 
 V. Richardson, 7 B. Mon. (Ky.) 654. Where an nffldavit for publication of sum- 
 mons against a non-resident failed to state that defendants could not be found 
 90 
 
714 MAEKETABLE TITLE TO EKAL ESTATE. 
 
 § 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 he 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 of 
 
 after due diligence, title of purchaser at a sale under decree against such defend- 
 ants, held unmarketable. Bixby v. Smith, 3 Hun (N. Y.), 60. Whether a 
 decree setting aside a fraudulent conveyance, and directing a sale of the land, 
 could be enforced by fieri facias : McCann v. Edwards, 6 B. Mon. (Ky.) 208, 
 311. Whether more property had been sold under a mortgage than was neces- 
 sary to satisfy the debts secured : Hemmer v. Hustace, 51 Hun (N. Y.), <57; 3 
 N. Y, Supp. 850. Whether a married woman, sued with her husband, was com- 
 petent to confess a judgment binding 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 : Swayuev. Lyon, 67 Pa. St. 486. Whether a judg- 
 ment creditor, suing to set aside a conveyance from husband to wife; was bound 
 by an order giving leave to file a complaint nunc jjro tunc 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 service 
 of summons by publi:;ation: Crosby v. Thedford, 13 Daly (N. Y.), 150. A sale 
 of the land of a non-resident und-er an order or decree of court is void, if publi- 
 aation 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 pur- 
 chaser under a decree in such cause will be unmarketable; Westhafer v. Koons, 
 144 Pa. St. 36; 32 Atl. Rep. 885. Titles held 'marketable. Whether a deputy 
 clerk has power to administer oaths in a suit pending before the court: MuUins 
 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 advertise- 
 
or DOUBTFUL TITLES. 715 
 
 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 ba directed unless the allegations of 
 the necessity therefor be sustained by testimony taken in the pres- 
 ence of a guardian ad litem. These provisions and others of like 
 character go to the jurisdiction of the court, and if they be not com- 
 plied with, the court has no power to order a sale. One of the most 
 important points to which the attention of the purchaser must be 
 directed in this connection is that the person under disabilities shall 
 have been represented by guardian ad litem, or other appropriate 
 person, in the proceeding to sell. Even the jights of unborn chil- 
 dren must be protected by having a rejDresentative of their interests 
 before the court.' The rule that a purchaser will not be compelled 
 to take a doubtful title applies with special force where infajits 
 are not concluded by the judgment or decree in proceedings for the 
 sale of lands in which they are interested.^ 
 
 If the lands of an infant be sold under a private act of the legis- 
 lature, the purchaser should carefully consider the provisions of the 
 act, to see that they do not injuriously affect the rights of the infant. 
 It has been held that the legislature has no power to order the sale 
 of separate pieces of land belonging to separate families of infants 
 severally interested, and to direct the proceeds of sale to be brought 
 
 ment of a sale under a mortgage was sufBcient: Streeter v. lUsley, 151 Mass. 
 291; 33 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. The 
 possibility that a decree, under which the vendor holds, may be opened in behalf 
 of non-resident defendants, is no objection to the vendor's title if the proceedings 
 in the cause appear to have been regular. Hays v. Tribble, 3 T. B. Mon. (Ky.) 
 106. As to what irregularities in proceedings before a surrogate for the sale of a 
 decedent's real estate for the payment of bis debts, will not render the title 
 doubtful, see Regney v. Coles, 6 Bos. (N. Y.) 479. In Stevenson v. Polk, 71 
 Iowa, 378; 33 N. W. Rep. 340, the possibility that defendants, on whom process 
 had been served by pubhcation, would appear and take advantage of an irregu- 
 larity in the proceedings, was held insufficient to make the title unmarketable. 
 
 ' Holmes v. Wood, (Pa.) 33 Atl. Rep. 54. One of the interests sold in this 
 case was liable to open to admit after-born children, and there being no represen- 
 tative of such prospective interests before the court, the title of a purchaser at a 
 sale in the cause was held doubtful. 
 
 « James v. Meyer, 41 La. Ann. 1100; 7 So. Rep. 618. 
 
716 MAEKETABLE TITLE TO REAL ESTATE. 
 
 into a common fund for partition, and that a title dependent upon 
 a sale under such an act is unmarketable.^ 
 
 § 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 pronounced. 
 
 'Ebling V. Dwyer, 79 Hun (N. Y.), 86. But -where the act was clearly for the 
 benefit of the infants, the title was held marketable. Munford v. Pierce, 70 Ala. 
 452. 
 
 Sale op infant's estate, etc. — TitteH held doubtful. Whether the rights of 
 an infant heir of a mortgagor were concluded \>j an illegal sale under the mort- 
 gage: Hemmer v. Hustace, 51 Hun (N. Y.), 457; 3 N. Y. Supp, 850. Whether 
 want of personal service upon certain infant defendants in partition invalidated 
 a judgment therein rendered; Swain v. Fidelity Ins. Co., 54 Pa. St. 455. 
 Whether in a case in which there was no jurisdiction for partition except by con- 
 sent, jurisdiction could be given by consent where the rights of infants were 
 Involved: Scheu v. Lehning, 31 Hun (N. Y.), 183. Whether certain irregulari- 
 ties in proceedings for the sale of an infant's estate vitiated the title of the pur- 
 chaser: Gill V. Wells, 59 jMd. 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. 334. 
 Whether a judgment in a suit for partition of an estate among devisees barred 
 the rights of unborn children in remainder, the judgment not providing for their 
 protection: Monarque v, Jlonarque, 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. 67. Whether an appearance by an infant in par- 
 tition by next friend instead of a guardian ad litem, was irregular and invalid: 
 Swain v. Fidelity In8. Co., 54 Pa. St. 455. Whether the appointment of a guar- 
 dian ad litem for an infant defendant in a certain case was valid; Uhl v. 
 Laughran, 4 N. Y. Supp. 837; 33 N. Y. St. Eep. 459. Whether ,,, certain con- 
 veyance by executors was in fraud of the rights of infants claiming under the 
 will; Stevens v, Banta, 47 Hun (JST. Y.), 329. Whether a guardian's sale of the 
 lands of his ward without authority was validated by a license to sell afterwards 
 obtained; Williams v. Schembri, 44 Minn. 350; 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 ofa guardian «(?;«fem to file a 
 bond with the clerk in proceedings for sale of an infant's lands cannot be cured by 
 by an order niincjrro tunc, 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 rcasona.ble ground to apprehend that the infant will be able to show 
 
OF DOUBTFUL TITLES. 717 
 
 Hence a title so derived, being always open to collateral attack, is 
 not only doubtful, but absolutely bad. But questions frequently 
 arise as to whether certain persons were necessary parties to proceed- 
 ings 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 depending upon sucli question becomes, 
 in a technical sense, doubtful or unmarketable, and such as a pur- 
 chaser cannot be compelled to take. Illustrations will be found in 
 the notes below. The mere non-joinder of persons who would have 
 been proper parties to the suit, but were not absol^^tely 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 defendants in a suit to enforce a mechanic's lien 
 against his estate did not raise a tenable doubt as to the validity of 
 a title derived under a sale in such suit, in the absence of anything 
 to show that there was a good defense to the suit.^ The bare pos- 
 
 cau8e; otherwise there can be no stability for titlesunderdecreesinsuits to which 
 there were infant defendants. Titles held marketable. Whether a creditor of an 
 infant was competent to act as his next friend in a suit for partition: O'Reilly v. 
 King, 28 How. Pr. (N. T.) 408. "Whether the appointment of a guardian ad 
 litem in a suit is valid when it does not appear by affidavit that the infant defend- 
 ants have no regular guardian: Martin v. Porter, 4 Heisk. (Tenn.) 407. Whether- 
 a, guardian adlitem 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, 33 Barb. (N. Y.) 48. Whether a 
 clerical error in the date of an affidavit by a guardian ad litem in a suit for par- 
 tition 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. SchoUe. 55 
 N. Y. Super. Ct. 468. Whether the legislature could pass a special act author- 
 izing the sale of certain property belonging to minors, the sale being for their 
 benefit: Munford v. Pearce, 70 Ala. 452. Where husband and wife were parties 
 to a suit to foreclose a mortgage, and the husband purchased the premises, he 
 could not object that the appearance of his wife, an infant, by attorney instead 
 of guardian ad litem was such an error as made the title unmarketable, since her 
 dower rights were unimpaired, the husband being the purchaser. Knight v. 
 Moloney, 4 Hun (N. Y.), 34. Description of curatrix as " guardian " in a proceed- 
 ing for the sale of an infant's lands does not impair the title. Mitchener v. 
 Holmes (Mo.) 22 S. W. Rep. 1070. 
 ' Reece v. Haymaker, (Pa.) 30 Atl. Rep. 404. 
 
718 MAKKETABLE TITLE TO EEAL ESTATE. 
 
 sibility 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 whicli the plead- 
 ings set forth certain persons as heirs entitled to partition, it was 
 held that tlie 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.^ 
 
 1 Greenblatt v. Hermann, 144 N. Y, 13; 38 N. E. Rep. 966. 
 
 "Want op parties — Title held not marketable. Whether a. sale of lands for 
 payment of a decedent's debts was valid ■without notice of the proceeding to the 
 heirs: Littlefield v. Tinsley, 26 Tex. 353. Whether the heirs of A. should have 
 heen 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 K 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 been 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. 877. 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 themselves, 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), 
 a,nd, therefore, properly omitted, renders the title doubtful. Toole v. Toole, 113 
 N. Y. 333; 22 Abb. N. C. 392. A title resting on a sale under execution against 
 heirs upon a judgment founded on a sci.fa. in which the heirs were not specially 
 named is unmarketable. Newman v. Maclin, 5 Hayw. (Tenn.) 241; Williams v. 
 Seawell, 1 Yerg. (Tenn.) 83; Henderson v. Overton, 2 Yerg. (Tenn.) 394; 34 Am. 
 Dec. 492. B., tenant in common with C, devised his estate to his wife subject 
 to legacies. The widow conveyed her moiety to the other co-tenant, C. , and on 
 his death his heirs brought suit for partition among themselves. B.'s estate 
 was insufficient to pay the legacies. B.'s legatees not having been made 
 parties to the suit, the title thence derived was held doubtful. Jordan v, 
 Poillon, 77 X. Y. 518, a leading case. See, also, Argall v. Raynor, 30 Hun 
 (N. Y.), 267; SchoUe v. SohoUe, 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 piirtitioner 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 
 
OF DOUBTFUL TITLES. 719 
 
 § 300. Defective conveyances and acknowledgments. Im- 
 perfect registration. A vast number of objections to title are 
 founded upon errors or irregularities in the drafting, acknowledg- 
 ment, and registration of deeds under which title is claimed. These, 
 of course, may be absolutely fatal to the title, or, at least, render it 
 doubtful ; but many of them are merelj' captious or frivolous, being 
 ferreted out by counsel to aid the liurchaser in his escape from a 
 losing bargain. They are principally questions of law suggested 
 by clerical mistakes and inadvertent omissions on the part of those 
 concerned in the execution and authentication of conveyances, such, 
 for examj)le, as the sufficiency of an informal and irregular certifi- 
 cate of acknowledgment ; or the sufficiency of a deed in which the 
 spelling of the name of the grantor in tlie body of the deed, differs 
 from his signature to the deed. Of course, however, graver ques- 
 tions frequently arise ; e. g., whether the language employed by 
 the grantor in the granting clause, is sufficient to create a certain 
 interest, and the like. In either case, if the question admit of a 
 reasonable doubt, the title depending tliereon will not be forced 
 upon the purchaser. The want of regular registration of -deeds 
 under which the vendor deduces title, there being no other proof 
 
 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 aliirmative, 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. 339. Titles held marketahle. 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. 873. Whether an assignee for the benefit 
 of creditors should have been made a party to a suit to foreclose a mortgage exe- 
 cuted before the assignment: Wagner v. Hodge, 34 Hun (N. Y.), 524. The fact 
 that an assignee for the benefit of creditors of property which had been previ- 
 ously mortgaged was not made a party to a suit to foreclose the mortgage, was 
 held, after the lapse of more than twenty-five years, no objection to the title under 
 Laws of New York, 1875, providing that deeds for the benefit of creditors shall 
 be deemed discharged after twenty-five years from their date. Kip v. Hirsh, 
 103 N. Y. 565; 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 acquires 
 by subrogation all the rights of the prior incumbrancer. De Saussure v. Boll- 
 ■ man, 7 Rich. (N. S.) (S. C.) 329. 
 
720 MARKETABLE TITLE TO REAL ESTATE. 
 
 of execution, is an insuperable objection to specific performance by 
 the purcliaser.' 
 
 It sometimes happens tliat tlie date of a deed in the vendor's 
 chain of title is subsequent to tlie date of the acknowledgment of 
 
 ' Hyne v. Campbell, 6 T. B. Mon. (Ky.) 286. George v. Conhaim, 38 Minn. 
 338; 37 K. W. Rep. 391. The mere non-record of a deed executed by a referee 
 in foreclosure proceedings does not render doubtful a title held thereunder, the 
 court having confirmed the sale and directed the deed to be made. Calder v. 
 Jenkins, 16 X. Y. Supp. 797. 
 
 ErROKS and irregularities in the drafting, execution and ACKNOWLEDG- 
 MENT OF coNVBY.iNCES — Titles Jield itot marketable. Whether a certain convey- 
 ance had been executed as an escrovp or not: Sloper v. Fish, 2 Ves. & Bea. 145. 
 Whether by a conveyance of lot " fifteen" in a certain block, lot fifteen in a sub- 
 division 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. Where a tract of land was originally surveyed in a block with other 
 lands, and from fixed monuments and other circumstances, it appears probable 
 that there was a serious interference between the various tracts : Holt's Appeal, 
 98 Pa. St. 258. Whether a certificate of acknowledgment which failed to state 
 that the grantors were known to the certifying officer to be such etc., was suffi- 
 cient; Fryer v. Rockefeller, 63 N. Y. 268. Where certificate of acknowledgment 
 failed to show that the certifying officer was personally acquainted with the 
 grantor: MuUins v. Aiken, 2 Heisk, (Tenn.) 535. ATherc the wife's acknowl- 
 edgment of a deed under which the vendor claimed, was wanting: JlcCann v. 
 Edwards, 6 B. Mod. (Ky.) 208. Where the certificate did not show prior exami- 
 nation 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. ^[arsh. (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 wil- 
 lingly 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.), 327; 82 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 Xew 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 
 
OF DOUBTFUL TITLES. 721 
 
 the deed. Sucli 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 
 
 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.), 303; (33 N. Y. Supp.). In Irving v. Campbell, 121 N. Y. 353; 
 34 N. B. Rep. 831, the fact that a certificate of acknowledgment of a conveyance 
 did not state the place of residence of the subscribing witness, was held to 
 render the title unmarketable, though it appeared that the person and place 
 of residence of such witness was well known. A title founded upon a decree 
 against husband and wife to enforce specific performance of a contract by the 
 husband to sell the wife's lands, is unmarketable, where it appears that there 
 are no equities binding the wife in the suit, or that she had not released her rights 
 in the manner provided by law. Hays v. Tribble, 3 T. B. Mon. (Ky.) 106. 
 Where an abstract of title showed record title in " H. P. Hepburn " and no title 
 out of him, but title out of "H. P. Hopkins," and the vendor claimed that the 
 deed from Hopkins was in fact from Hepburn, but refused to submit his proofs 
 for examination of the purchaser, it was held that the latter might reject the 
 title and recover his deposit, though the vendor might be able to show that the 
 title was good. Benson v. Shotwell, 87 Cal. 49; 25 Pac. Rep. 249. So, also, 
 where the record title was in " K, P. 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 immarketable, and that the defect was not cured by a 
 second deed from K. F. Redman to the plaintiff's vendor, reciting that he was 
 the same person as " K. F. Redmond " in the first-meationed deed. Peckham 
 V. Stewart, 97 Cal. 147; 31 Pac. Rep. 928. So, also, where a conveyance was 
 by error made to "James M." instead of "Joseph M.," though the error was 
 afterwards recited in a suit in which the premises were partitioned between the 
 heirs of Joseph M. and one who had been his co-tenant, such recital and finding 
 not being conclusive upon any one who should claim as James M. Mead v. Alt- 
 geld, 136 111. 298; 36 N. E. Rep. 388. Titles held marketable. Whether a con- 
 veyance 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. 370, and 44 Hun (N. Y.), 633. Whether the husband must join in a convey 
 ance by an executrix: 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, 35 Cal. 76. In the descriptive clause 
 of a deed, a course was given as "southeasterly," but the deed itself furnished 
 91 
 
722 MAEKETABLE TITLE TO EEAL ESTATE. 
 
 inserted subsequently the discrepancy wonld 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. ^ 
 
 § 301. Construction of deeds, wills, etc. Perhaps the most 
 difficult questions on which title to real estate depends, as between 
 
 evidence that "southwesterly" was intended, and it was held that the misde- 
 scription of the course did not render the title unmarketable. Brookman v. 
 Eurzman, 94 N. Y. 273. A misdescription of the boundary lines of the premises 
 does not make the title doubtful, if the land may be clearly identified from the 
 monuments and objects mentioned in the deed. Galvin v. Collins, 128 Mass. 525. 
 See, also, Meyer v. Boyd, 51 Hun (N. Y.), 391, 395; 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 unmar- 
 ketable. JSewsom 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 te>.ti- 
 inonium clause, and she signed and acknowledged the deed. Held, that the omis- 
 sion of the wife's name in the body of the deed did not render the title unmarket- 
 able. Atkinson v. Taylor, 34 Mo. App. 443. 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 acknowledgment by a married woman before a different ofBcer and at a differ- 
 ent time from her husband was valid, under a statute which merely required 
 that, " in addition " to the husband's acknowledgment, the wife should declare, 
 etc.: Ludlow V. O'Neil, 29 Ohio St. 183. Whether the language, "Personally 
 came A. B., the executor of the annexed deed, and acknowledged it," was equiva- 
 lent 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 under which the vendor claims does not contain the official title of the 
 person taking the proof, when it can be shown that he was an officer authorized 
 to take such proof at the time. Bronk v. !McMahon, 37 S. Car. 309. The fact 
 that the clerk made a short memorandum of an acknowledgment by a married 
 woman, and afterwards wrote out the certificate in full and recorded it, the death 
 of the married woman having supervened, does not affect a title derived under 
 such certificate. Prewitt v. Graves, 5 J. J. Marsh. (Ky.) 114. 
 
 1 Dresel v. .Jordan, 104 Mass. 407. 
 
 Rbgisthation of deeds, etc. — Titles held doubtful. Whether an attachment 
 levied upon land took priority over an unrecorded conveyance of the land: Mul- 
 lins v. Aiken, 2 Heisk. (Tenn.) 535. Want of regular registration of deeds by 
 which the vendor deduces title, there being no other proof of 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 
 
OF DOUBTFUL TITLES. 723 
 
 vendor and purchaser, are those which involve the true construction 
 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 remain- 
 ders, executory devises, restraints upon alienation, the creation of 
 perpetuities, and the like, there are many niceties and subtleties, 
 concerning which, as related to the peculiar circumstances of each 
 case, the most learned in the law may well doubt. So, too, the true 
 intent of a testator, whose will has been inartifieially and unskill- 
 fully drawn, is often a question upon which different judges enter- 
 tain different opinions. And oftentimes, with the aid of parol evi- 
 dence to exjDlain patent ambiguities in a will, it is impossible to 
 determine, beyond a reasonable doubt, to what persons or things 
 the testator refers.' 
 
 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. Mon. (Ky.) 286. 
 Titles held marketable. Whether an assignment of a mortgage was necessary to 
 be recorded: Fryer v. Rockefeller, 63 N. Y. 268. Whether a certain conveyance 
 recorded in the county clerk's office of New York coimty, but not recorded in the 
 office of the register of deeds, was notice to a subsequent purchaser: Wagner v. 
 Hodge, 34 Hun (N. Y.), 534. The fact that a deed under which the vendor claims 
 is unregistered does not make the title doubtful when the grantor in such deed 
 is dead, without creditors, and no subsequent 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 
 acknowledgment, 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. 
 
 ' Consthuotion of instrumbnts — 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; 57 Hun (N. Y.), 588. Whether in a certain case the 
 purchaser was required to see to the application of the purchase money: Gar- 
 uett V. ]Macon, 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. Monaghan v. Small, 6 Eich (N. S.) 
 (S. C.) 177. Whether a certain deed absolute 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 
 
724 MAEKETABLE TITLE TO EEAL ESTATE. 
 
 § 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. The 
 question may be one of fact, as whether the grantor was a minor, 
 
 therewith, amounted to a dedication of such premises to the uses of the prospec- 
 tive buyers of adjoining 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. Whether a quit claim or release by a married woman to a 
 stranger will operate to divest her inchoate right of dower: Merchants' Bank v. 
 Thomson, 55 N. Y. 7. Whether an inchoate right of dower is merged in a con- 
 veyance 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 Jlass. 221. Whether a limitation over after the determi- 
 nation of u, life estate was, in a certain case, void for remoteness: Lowry v. 
 Muldrow, 8 Rich. Eq. (S. C.) 241. Whether a corporation under a conveyance to 
 its president, "his successors and assigns," but without words of inheritance, 
 took an estate in fee: Cornell v. Andrews, 87 N. J. Eq, 7. Whether a devisee 
 took the estate with absolute power of alienation: Cunningham v. Blake, 131 
 Mass. 333. Starnes v. Allison, 2 Head (Tenn.), 221. Whether certain language 
 in a will created an absolute or a conditional fee: Goerlitz v. Malawista, 56 
 Hun (N. Y.), 120; 8 N. Y. Supp. 833. Certain doubts arising upon the true 
 construction of u. will, held sufficient to make the title doubtful: Simis v. 
 McElroy, 89 N. Y. St. Rep. 824; 14 N. Y. Supp. 241. Whether a certain 
 assignment of a mortgage to the mortgagor as "trustee" amounted to anabsolute 
 release of the mortgage: Sturtevaut v. Jaques, 14 Allen (Mass.), 523. Whether 
 certain posthumous children of a testator were entitled to take under his will: 
 Kilpatrick v. Barron, 125 N. Y. 751; 36 N. E. Rep. 935. Whether a certain 
 remainder created by will was vested or contingent: Nelson v. Russell, 61 Hun 
 (N. Y.), 538; 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. 1039. Titles held 
 marketable. Whether in a certain case there was an unlawful suspeusion of the 
 power of alienation: Kelso v. Lorillard, 85 N. Y, 177; Rice v. Barrett, 103 N. 
 Y. 161; 6 N. E. Rep. 898. Whether a conveyance by one of two devisees in 
 remainder to the other with general warranty passed the interest of the grantor 
 in remainder by estoppel to the other remainderman: Vreeland v. Blauvelt, 23 
 N. J. Eq. 483. Whether a certain limitation over upon the death of the first 
 taker without issue was void for remoteness: Miller v. Macomb, 26 Wend. (N. 
 Y.) 229. A testator devised his estate to his wife for life, but made no disposition 
 of the remainder. Testator died without children or descendants, and the prop- 
 erty having passed to the wife as heir at law, a purchaser from her was com- 
 pelled to take the title. Lemon v. Rogge. (Miss.) 11 So. Rep. 470. Whether 
 
OF DOUBTFUL TITLES. 725 
 
 a lunatic or a married woman, or it may be a question of law, as 
 whether the courts of one State have power and authority to appoint 
 a commissioner to sell and convey lands in a sister State, or whether 
 one conveying in pursuance of a power has exceeded his authority. 
 A title dependent upon a -conveyance executed by one admitted to 
 be an infant or a person non compos mentis is absolutely bad, for 
 such a deed is void. But if the fact of infancy or tlie want of con- 
 tractual 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 Kentucky, the court held that a title 
 should not be declared doubtful because of the alleged insanity of a 
 remote grantor, if the fact of insanity was left in doubt at the final 
 hearing, nor, if insanity be fully established, unless it appear that 
 the deed of such grantor had been in fact set aside, or probably 
 would be in proceedings already instituted for that purpose.* 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 litigation. The same observation will apply to a decision that the 
 incapacity of a corporation to take and hold real estate, does not 
 affect the validity of a title derived through the corporation,^ unless 
 
 certain language in a deed or will created a life estate or a fee in the grantee or 
 devisee: Cassel v. Cook, 8 S. & R. (Pa.) 268; 11 Am, Dec. 610. Whether a 
 legacy in a certain case was an equitable charge on lands embraced in a residu- 
 ary devise of the estate: Wiltsie v. Shaw, 39 Hun (N. Y.), 195. 
 
 ' Hunt V. Weir, 4 Dana (Ky.), 347. 
 
 ' Mo. Valley Land Co. v. Bushnell, 11 Neb. 192; 8 N. W. Rep. 389. 
 
 COMPBTBNCY, POWBB OK AUTHOEITY OF PARTIES — Titles held doiMftil. In the 
 following cases questions of law or of fact as to the authority or competency of 
 parties to convey were held to render the title unmarketable: Whether a con- 
 veyance was executed by a person non compos mentis : Freetly v. Barnhart, 51 
 Pa. St. 379. Whether a power of sale conferred upon an executor can be exer- 
 cised by his executor: Chambers v. Tulane, 9 N. J. Eq. 146. Whether a private 
 act of the legislature empowering a life tenant to sell the remainder and convey 
 a title in fee, was binding upon the remainderman: Bamberger v. Clippinger, 
 5 W. & 8. (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 jurisdiction, by 
 an officer acting under the orders or decree of a court of another jurisdiction, is 
 valid: Contee v. Lyons, 19 D. C. 307. Watts v. Waddle, 1 McLean (U. S.), 
 200. See Corbett v. Nutt, 10 Wall. (U. S.) 464, audWatkins v. Holman, 16 Pet. 
 
726 MAEKETABLE TITLE TO EEAL ESTATE. 
 
 it was thereby intended to decide tliat tlie State could not insist 
 upon a forfeiture of the estate in the liands of tlie grantee of the 
 corporation. 
 
 § 303. Title as dependent upon intestacy. Debts of 
 decedent.- The bare possibility that a wijl may be discovered after 
 
 (U. S.) 67. Whether a deed executed in pursuance 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. 506. Whether an executor in a certain case had power under the will to sell 
 realty: Alkus v. Goettmann, 39 N. Y. St. Rep. 334; S. C, 14 N. Y. Supp. 241; 
 Droge V. Cree, 39 N. Y. St. Rep. 364; S. C, 14 N. Y, Supp. 300; Warren v. 
 Bauning, 31 N. Y. Supp. 888. 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; 3 ]Sr. E. Rep. 905. Whether executors acting under a power 
 had sold more land than was necessary for the purposes of the testator: Town- 
 shend v. Goodfellow, 40 Minn. 312; 41 N. W. Rep. 1056. Whether a will 
 executed by one of two joint e.vecutors was sufficient — the will requiring 
 the executors 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 property being 
 liable to revert to the grantor if diverted from the purposes of the grant: Second 
 Universalist Soc. v. Dugan, 65 Md. 460; 5 Atl. Rep. 415. In a case in which the 
 title depended on the powers of u, religious corporation to convey land, and the 
 purchase money was to be reinvested in other lands in trust for the corporation, 
 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. Hamp- 
 ton V. Spocknagle, 9 S. & R. (Pa.) 313; 11 Am. Dec. 704; Weyand v. Tipton, 5 
 H. & R. (Pa.) 333; Wilson v. McVeagh, 3 Yeates (Pa.), 86. Distinguish Burke v. 
 Ryan, 1 Dall. (U. S.) 94, where possession had gone with the deed for more 
 than thirty years. In Smith v. Moreman, 1 T. B. Mon. (Ky.) 155, the vendor, 
 complainant in a suit for specific performance, alleged that he held title under an 
 execution sale, but failed to produce a judgment on which the execution issued, 
 and his bill was dismissed. In Abbott v. .James, 111 N. Y. 673; 19 N, E. Rep. 
 434, there was a devise of an entire estate in remainder to charitable societies, 
 with power to the executor to sell the real estate and divide the proceeds among 
 
OF DOUBTf'UL TITLES, 727 
 
 the death of a decedent, does not render title by descent from him 
 unmarketable.' Nor, it is apprehended, would the possibility of the 
 discovery of a later will, where he dies testate, have that effect, 
 anless 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 any- 
 
 the societies. Under the laws of New York the devise was invalid, except as to 
 one-half of the testator's estate. After the precedent estate determined, the 
 executor sold the real estate under the power, but the title was held unmarketable : 
 (1) Upon a question of fact, namely, the ability of the heirs to show that there 
 was personal property enough to satisfy the devise to the societies; and (2) upon 
 a question of law, namely, whether the power of sale failed as to so much of the 
 real estate as could not pass to the charitable societies. A purchaser cannot be 
 compelled to take a title dependent on a conveyance of a homestead estate to 
 which the grantor's wife was not a party. Castleberg v. Maynard, 95 N. G. 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 conveyance 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, Where a 
 statute authorized personal representatives to speciflcally perform contracts for 
 the sale of lands made by the testator or intestate during his lifetime, the fact that 
 a testator devised all of his lands to his children, does not make doubtful or 
 unmarketable the title which a purchaser of a part of such lands from the testa- 
 tor in his lifetime, will receive from the executor. The statute practically avoids 
 the devise. Hyde v. Heller, 10 Wash, 586; 39 Pac. Eep, 249, The possibility 
 that probate of a will may be revoked, will not affect the title of a purchaser from 
 the executors under a power of sale, when no facts appear showing that probate 
 will probably be revoked. Nor is the title invalidated by a failure of the execu- 
 tors to distribute the proceeds of the sale among those entitled, Seldner v. 
 McCreery, 75 Md. 287; 28 Atl. Rep. 641. In Baker v. Shy, 9 Heisk. (Tenn.) 89, 
 the ahenage of the vendor's grantor was held not to render the title unmarket- 
 able. 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. 
 
 1 Moser v. Cochrane, 107 N. Y. 35; 13 N. E, Rep, 448; Schermerhorn v, Niblo, 
 2 Bosw, (N. Y.) 161; Disbrow v, Polger, 5 Abb. Pr, (N. Y.) 53; McDermott v. 
 McDermott, 3 Abb. Pr, (N. S.) (N. Y.) 451, diotum. 
 
728 MAEKETABLE TITLE TO EEAL ESTATE. 
 
 thing to show the probable existence of such debts.^ 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.- 
 
 § 304. INCUMBRANCES. As a general rule an incumbrance upon 
 the premises, so long as it may be removed by application of the 
 purchase mone}^, or where the vendor being solvent, offers to 
 rTmove it or may be compelled to do so, furnishes no groirnd upon 
 V, hich tlie purchaser may refuse to complete the contract, or recover 
 damages against the vendor.' But if both parties enter into the 
 contract with the express understanding that the premises are free 
 and clear of incumbrances, it may be doubted whether the purchaser 
 would be compelled to take subject to an incumbrance, even though 
 it could be discharged out of deferred payments of the purchase 
 money.* If, however, the purchase money be presently due and 
 the vendor can produce some one who is competent to receive pay- 
 ment of the incumbrance and execute a release or satisfaction piece, 
 no reason is perceived why the purchaser should not be compelled 
 to complete the contract.^ The cases in which the existence of an 
 
 ■Moser t. Cochrane, 107 N. Y. 35: 13 N. E. Rep. 442; Spring v. Sandford, 7 
 Paige (N. Y.), 550. Moore v. Taylor, (Md.) 32 Atl. Rep, 320. In Disbrow v. 
 Folger, 5 Abb. Pr. (N. Y.) 53, tbe title was referred to a master for the purpose 
 of ascertaining whether any such debts existed. 
 
 M Sugd. Vend. (8tb Am. ed.) 573. Dickinson v. Dicliinson, 3 Bro. C. C. 19. 
 See, also, Phitt v. Newman, 71 Jlich. 113; 38 N. W. Rep. 720. 
 
 ^ 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 tbe purchaser can be 
 protected against it. Cox v. Coventon, 31 Beav. 878; Wood v. Majoribanks, 8 
 De G. & J. 329; 7 H. L. Cas. 806. Tiernan v. Roland, 15 Pa. St. 44;. Pang- 
 born V. Miles, 10 Abb. N. Cas. (N. Y.) 42. Brewer v. Herbert, 80 Md. 301; 
 96 Am. Dec. 583, a case in which the decree provided that the incumbrance, a 
 judgment against the vendor, be paid out of the purchase money. The vendor 
 had also appealed from the judgment and executed an appeal bond covering the 
 judgment and costs. 
 
 ^Karkerv. Haverly, 50 Barb. (N. Y.) 79; Chambers v. Tulane, 9 N. J. Eq. 
 146. An obvious reason for this position Is, that the existence of the incum- 
 brance might prevent an advantageous resale by the purchaser. Besides if 
 the purchaser, for reasons satisfactory to himself, chooses to insist upon a pro- 
 vision that the premises shall be free of incumbrances, who shall gainsay him, 
 when he insists upon a literal performance of the agreement? 
 
 'Webster v. Kings Co. Trust Co., 80 Hun(N. Y.), 430; 80 X. Y. Supp. 857. 
 
OF DOUBTFUL TITLES. 729 
 
 incumbrance upon the premises will justify the purchaser in refus- 
 ing to go on with the purchase, until the objection be removed, may 
 be thus classified : (1) Those in which the existence of the incum- 
 brance is admitted, or free from doubt ; and (2) those in which the 
 fact or existence of the incumbrance is a matter of doubt or dispute. 
 
 § 305. (i) Admitted incumbrances. ^' e liave seen that an 
 admitted pecuniary charge or lien upon the premises will excuse 
 the purchaser from completing the contract unless the purchase 
 money can be applied to its removal without subjecting him to loss, 
 inconvenience or expense.^ The vendor has a right to perfect the 
 title by removing incumbrances.^ 
 
 Strictly speaking, an incumbrance is not a defect in the title to 
 an estate,^ 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 intei'est 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.* 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 indiiferently of incumbrances as well as 
 adverse claims as constituting defects of title, and for all practical pur- 
 poses they may be so regarded, especially if they be of the irremov- 
 able kind, such as easements, rights of way and other incorporeal 
 rights. 
 
 A purchaser cannot be compelled to complete his purchase or 
 accept the title if there is an incumbrance on the property which 
 the vendor cannot or will not remove, and which the purchaser can- 
 not himself remove by an application of the purchase money." Of 
 
 ' Ante, p. 566. 
 -Post, ch. 32; ante, ch. 19. 
 
 « Heimburg v. Ismay, 35 N. Y. Super. Ct. 35. Stephen's Appeal, 87 Pa. St. 
 ;:;/; llernan v. Eoland, 3 Harris (Pa.), 441. 
 
 *Prescott V. Trueman, 6 Mass. 627; 3 Am. Deo. 349. 
 »1 Sugd. Vend. (8th Am. ed.) 473 (312). 
 92 
 
730 MARKETABLE TITLE TO EEAL ESTATE. 
 
 this kind are easements, servitudes, rights of way,' reservations of 
 minerals,' building restrictions," restrictions as to uses,* unexpired 
 lease3,= charges upon the property for the support of particular per- 
 
 ' Shackelton v. Sutcliff, 1 De G, & Sm. 609. 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. 
 C't. 208. A right on the part of a third person to have a drain pipe and water 
 pipe across the premises sold, to the maintenance of which the purchaser must 
 contribute, is a servitude upon the property amounting to an incumbrance, and 
 entitles the purchaser to rescind. Kearney v. Hogan, 154 Pa. St. 112; 35 Atl. 
 Rep. 1076. A space to be left for roads and levees by riparian owners is a legal 
 servitude and does not constitute an incumbrance. Bourg v. Niles, 6 La. Ann. 
 77. A dedication of a part of the premises as a street is a fatal objection to the 
 title. Turner v. Reynolds, 81 Cal. 214; 23 Pac. Rep. 546. 
 
 ' 1 Sugd. Vend. (8th Am. ed.) 473 (313). 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 X. 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.) 453; 17 N. Y. Supp. 13; Kountze v. Hellmutb, 
 67 Hun, 344; 22 N. Y. Supp. 204. Jefiries v. Jeffries, 117 Mass. 184; McGlynn 
 v. Maynz, 104 ;Mass. 263. A restriction against building within a certain distance 
 of a street line is an incumbrance not susceptible of pecuniary compensation. 
 Adams v. Valentine, 38 Fed. Rep. 1 (N. Y.). As to whether building restric- 
 tions run with the land and bind subsequent purchasers, see Trustees v. Lynch, 70 
 is. 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 c:heap buildings was an interest which 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 objection to the title founded on the restriction. A 
 condition that no mill, factory, brewery or distillery shall be erected on the 
 premises makes the title unmarketable. Batley v. Foerderer, 162 Pa. St. 460; 
 29 Atl. Rep. 868. A building restriction created by a former owner is not removed 
 by a subsequent sale of the premises for taxes, and, therefore, remains a substan- 
 tial objection to the title. Lesley v. Morris, 9 Phila. (Pa.) 110; 30 Leg. Int. 108. 
 
 ■•Dart V. & P. (5th ed.) 119, where it is said that a covenant against certain 
 trades being carried on on the premises is a serious defect in the title and should 
 
 » Judson V, Wass, 11 Johns. (N. Y.) 525; 6 Am. Dec. 393; 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. Hatfield, 4 Bl. 
 (Ind.) 393. A covenant for renewal of a lease, of which neither party is advised, 
 relieves a purchaser from his agreement to take subject to the unexpired lease. 
 Fruhauf v. Esndheim, 6 N. Y. Supp. 364; affd., 137 N. Y. 587; 28 N. E. Rep. 
 417. 
 
OF DOUBTFUL TITLES. 731 
 
 sons,* inchoate rights of dower,^ outstanding life interests,' pro- 
 ceedings in eminent domain* and tlie like. Wherever these mate- 
 rially lessen the value of the premises and cannot he compensated 
 
 be stated in the particulars. Darlington v. Hamilton, Kay, 550; Bartlett v. 
 Salmon, 1 Jur. (N. S.) 278; 6 De G., M. & G. 33. Premises not to be used as a 
 slaughter-house, Raynor v. Lyon, 46 Hun (N. Y.). 337; tavern, Post v. Weil, 8 
 Hun (N. Y.), 418; reversed in 11.^ N. Y. 361; 23 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. 99. A covenant by a prior grantee not to cre- 
 ate 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 contract. 
 Clement v. Burtis, 121 N. Y. 708; 24 N. E. Rep. 1013. 
 
 ' As to effect and validity of condition to support grantor, see Spaulding v. 
 HoUenbeok, 35 N, Y. 204. Leach v. Leach, 4 Ind. 628. Berryman v. Schumaker, 
 67 Tex. G13. 
 
 « Sugd. Vend. 572, 575 (383, 384). Parks v. Brooks, 16 Ala. 539. Lewis v. 
 Coxe, 5 Harr. )Dcl.) 401. Andrews v. Word, 17 B. Mon. (Ky.) 518. Porter v. 
 Noyes, 2 Greenl. (Me.) 22; 11 Am. Dec. 30. Clarke v. Redman, 1 Bl. (Ind.) 379. 
 Contract for "good and lawful title," or conveyance "free from incumbrance," 
 obhges vendor to furnish a deed with relinquishment of contingent right of 
 dower. Thrasher v. Pinkard, 23 Ala. 616. Estep v. Watkins, 1 Bland (Md.), 
 486. Polk V. Sumter, 3 Strobh. (S. C.) 81. Jones v. Gardner, 10 Johns. (N. Y.) 
 366. Heimburj v. Ismay, 35 N. Y'. Super. Ct. 35. Fitts v. Hoitt, 17 N. H. 530. 
 Goodkind v. Bartlett, 158 111. 419; 38 N. E. Rep. 1045. A statute merely author- 
 izing the sale of the property of lunatics does not authorize the court or its 
 oiBcers 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 v. Huether, 64 Hun (N. Y.), 18; 18 IST. Y. Supp. 
 723. Where a wife was a party to a junior mortgage, but was not a party to the 
 senior mortgage and the junior mortgage was 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. 
 
 " Dikeman v. Arnold, 71 Mich. 656; 40 N. W. Rep. 42. In this case the 
 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 com- 
 pelled 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 partic, 
 ular estate. 
 
 *Cavanaugh v. McLaughlin, 38 Minn. 83; 35 N. W. Rep. 576. But in 
 Wagner v. Perry, 47 Hun (N. Y.), 516, it was held that the mere filing of a map 
 
732 MARKETABLE TITLE TO REAL ESTATE. 
 
 for by way of damages or abatement of the purchase money, 
 specific performance at the suit of the vendor will be denied.^ 
 And the fact that the vendor is solvent and able to respond in dam- 
 ages for a breach of the contract is no ground upon which the pur- 
 chaser can be compelled to accept the incumbered title.^ 
 
 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 tlie physical 
 condition of the property, and his contract is conclusively presumed 
 to have been made subject to such condition.^ A contract, to give 
 a " good and sufllcient title," will not oblige the vendor to extinguish 
 a perpetual rent charge on the premises, where the contract expressly 
 provides that the purchaser shall take subject to such charge.* 
 Where the contract refers to the land sold as the same descrihed in 
 a certain deed, and provides for a conveyance of the same free from 
 incumbrances, and a deed is tendered describing the land precisely 
 as described in the deed referred to, the purchaser cannot reject such 
 deed on the ground that there is a private right of way over the 
 premises.^ We have seen that the purchaser cannot refuse to com- 
 ijlete the contract if he was informed of the existence of the incum- 
 brance when he purchased.^ 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.' 
 
 by street commissioners, containing a plan for widening a, street, the efEect of 
 wMch would be to cut off a part of a lot sold, would not entitle the p\ivchaser to 
 rescind the contract; the title not being affected until actual proceedings had 
 been taken to widen the street and they might never be taken. See, however, 
 Forster v. Scott, 136 N. Y. 577; 32 N. E. Rep. 976, where a different view seems 
 to have been entertained. 
 
 ' O'Kane v. Kiser, 35 Ind. 16a 
 
 ' Ante, p. 672. 
 
 'Archer v. Archer, 84 Hun (N. Y.), 297; 32 N, Y. Supp. 410. 
 
 ^Topliffi V. Atlanta Land & Imp. Co., 66 Fed. Rep. 853; 13 TJ. S. App. 733. 
 
 *Heppenstall v. O'Donnell, 165 Pa. St. 488; 30 Atl. Rep. 1008-. 
 
 "Ante, p. 194. 
 
 Tark v. Johnson, 7 Allen (Mass.), 378. 
 
OF DOUBTFUL TITLES. 733 
 
 § 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 incumbrancer 
 as to that fact, the purchaser will not be required to take a title so 
 burdened.' He will not be compelled to buy a law suit. Especially 
 does this rule apply where the doubts about the discharge of the 
 incumbrance must be removed by parol testimony, and the laj)se of 
 time is constantly decreasing the means for that purpose.^ ITeither 
 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.^ Nor where the 
 incumbrance is inchoate and undetermined in its character, e. g., an 
 attachment levied upon the estate of the vendor in the land.^ But 
 it has been held that a Ih pendens without evidence to show that it 
 is founded upon a just claim, is no such incumbrance as will justify 
 
 ' Rife V. Lybarger, 49 Ohio St. 429; 31 N. E. Rep. 768. In Richards v. Mer- 
 cer, 1 Leigh (Va.), 135, a purchaser was compelled to complete the contract, though 
 there was a mortgage on the premises, and nothing but "strong grounds" for 
 believing that it had been satisfied. 
 
 ' Moore v. Williams, 115 N. Y, 586; 23 N. E. Rep. 233. 
 
 '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. 333; 23 Abb. N. Gas. 404. 
 There the vendor, in answer to the objeetion that a certain judgment against a 
 prior owner was a lien upon the land, attempted to show that the laud, 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 incum- 
 bered, 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 ven- 
 dor 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. 
 
 ■* 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. 33. 
 
734 MAEKETABLB TITLE TO EBAL ESTATE 
 
 a purchaser in refusing to perform the contract.' And a mortgage 
 duly executed, acknowledged and recorded, but not accepted by the 
 mortgagee, and, therefore, of no force and effect, though apparently 
 a lien upon the premises, is no ground upon which a purchaser can 
 rescind the contract.' So, also, a mortgage invalid because executed 
 by one having no authority, creates no objection to the title. ^ 
 
 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.'' Thus, where ttie pur- 
 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 property 
 which it was intended to cover, the court held the purchaser's objection 
 good, without deciding whether the mortgage was or was not valid.'' 
 
 ' Wilsey v. Dennis, 44 Barb. (N, Y.) 354. Compare Earl v, Campbell, 14Ho-w. 
 Pr. (N. y.) 330. Of course, an attachment procured 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 Us pendens be discharged before decree, the vendor 
 will be entitled to specific performance. Daniel v. Smythe, 5 B. Mou. (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. 
 
 ■•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 M.4.rshall, Ch. J., said: 
 "This allegation is not, I think, entirely correct. The objection is not entirely 
 confined to cases of doubtful title. It applies to incumbrances of every descrip- 
 tion 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 state- 
 ment was correct. But the point being doubtful, the bill of the vendor praying 
 a specific performance was dismissed. There is certainly a difference between a 
 defined and admitted charge, to which the purchase money may by consent be 
 applied when it becomes due, and a contested charge which will involve the pur- 
 chaser in an intricate and tedious lawsuit of uncertain duration." See, also 
 Christian v. Cabell, 23 Grat. (Va.) 82; Hendricks v. Gillespie, 25 Grat. (Va.) 181; 
 Kenny v. Hoffman, 81 Grat. (Va.) 442; Griffin v. Cunningham, 19 Grat. (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 
 
OF DOUKTFUL TITLES. 
 
 735 
 
 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 seeing that 
 the purchase money is reinvested upon the same trusts as those 
 under which he purchased. It has even been held that he may 
 refuse to complete the contract if the case be one in which the duty 
 of the purchaser to see to the application of the purchase money is 
 a doubtful question dependent upon the construction of the instru- 
 ment creating the trust.' 
 
 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 con- 
 veyance or to execute a release.^ But it is obvious tliat circumstances 
 might exist which would make the incumbrance a serious objection 
 
 as a proviso for the benefit of adjacent lots; Jeffries v. Jeffries, 117 Mass. 184. 
 Wliether a certain $4,000,000 railroad mortgage was a valid lien on the p\irchased 
 premises: Nicoi v. Carr, 35 Pa. St. 381. Titles held marketable. Whether cer- 
 tain 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 exe- 
 cuted: Post V. Bernheimer, 31 Hun (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 8. & R. (Pa.) 368, 392; 11 Am. 
 Dec. 610. 
 
 ' St. Mary's Church v. Stockton, 8 N. J. Eq. 520, 531. A charter under which 
 the vendors (certain church officials) held in this case, contained a proviso that in 
 case of a sale of the premises granted, lands of the full value of those sold should 
 with the proceeds of the sale be purchased and settled for the uses declared in 
 the charter. The court observed: ""Without examining particularly the doc- 
 trine as to the duty of purchasers to see to 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 sub- 
 jected to the issue of the question whether the purpose to which the money aris- 
 ing 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. § 1137." 
 
 » Ante, p. 566, 729. 
 
736 MARKETABLE TITLE TO BEAL ESTATE. 
 
 to specitic performance by the purchaser. The property may have 
 been purchased with a view to speedy resale as a spectilation, and 
 difficulty may be encountered in finding; a person competent to 
 release the incumbrance, particularly if created hy 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.^ The fact 
 that the unpaid purchase money may be applied to the discharge of 
 an incumbrance does not affect the purchaser's right to rescind, if 
 the vendor fraudulently concealed the existence of the incixmbranee.* 
 The extreme imiDrobability that a valid and subsisting incum- 
 brance upon the premises will ever be enforced • renders the title 
 none the less liable to objection. When once it is ascertained that 
 the incumbrance exists, specific performance by the purchaser will 
 not be enforced on the ground that it is doubtful whether the incum- 
 brance will ever be foreclosed.' 
 
 > Ante, ch. 24, p. 568. Peak v. Gore, 94 Ky. 533. 
 
 'Crawford v. Keebler, 5 Lea (Tenn.), 547. Peak v. Gore, 94 Ky. 533. 
 
 3 Seaman v. Hicks, 8 Paige (N. Y.), 655. Hendricks v. Gillespie, 25 Grat. (Va.) 
 181, 200. Butler v. O'Hear, 1 Des. Bq. (S. C.) 383; 1 Am. Dec. 671. If any 
 person has an interest in or claim upon the estate which he may enforce, a pur- 
 chaser cannot be compelled to take the estate, however improbable it may be that 
 the right will be exercised. 1 Sugd. Vend. (8th Am. ed.) 590. Drew v. Cor- 
 poration, etc., 9 Ves. 368, wnere 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. T. 
 234; 6 Am. Kep. 70, the defendant 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 exist- 
 ence 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 seeming, i3 
 very slight and very remote, that the premises for which he has contracted will 
 
OF DOUBTFUL TITLES. 737 
 
 § 307. Apparently unsatisfied incumbrances. It seems that 
 incumbrances upon the purchased premises which do not appear by 
 the record to have been satisfied will render the title doubtful or 
 unmarketable, even though the vendor be able to show by parol 
 
 ever be called upon to contribute to the payment of these bonds. The probabili- 
 ties 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 pay- 
 ment 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 appellant 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 cred- 
 itor may enforce his lien. And this hampers the estate. It may be conceded that 
 a title free from reasonable 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 exer- 
 cise 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. 439; 31 N. E. Rep. 768, the only cloud upon the title was an uncan- 
 celed 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 quit claimed any interest which they might have to the vendor. The pur- 
 chaser was compelled to take the title. The court by Bkadbury, J., lucidly said: 
 ' ' If the title is such that it ought to satisfy a man of ordinary prudence it is 
 sufficient. In the case under consideration, the title was perfect, but was sub- 
 ject 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 considerable 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 possi- 
 ble purchasers 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 con- 
 templating purchasers." 
 93 
 
738 MAKKETABLE TITLE TO REAL ESTATE. 
 
 testimony that they have been satisfied.' They constitute a cloud 
 upon the title, which the vendor should remove before calling upon 
 the purcliaser to complete the contract. The means of showing the 
 satisfaction of the incumbrance may not be within the purchaser's 
 reacli, 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 incum- 
 brancer to enter the fact of satisfaction of the incumbrance on the 
 record.- Where the vendor is in possession of evidence which would 
 entitle him to such an entry he should procure it to be made. If he 
 have not such evidence, the purchaser should be relieved from the 
 contract. If, however, the purchase money remains unpaid so that 
 it can be applied to any incumbrance upon the premises, or if the 
 vendor can show that he is able to satisfy the incumbrance, it has 
 been held that the fact that the incumbrance appears unsatisfied of 
 record will not entitle the purchaser to rescind.' 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,* and may refuse 
 to complete the contract. But if the vendor can, within a reason- 
 able time, remove the objection 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 principle that the vendor may perfect the title 
 wherever time is not material. 
 
 In New York it has been held that the existence of a mortgage 
 
 ' Hoyt V. Tuxbury, 70 111. 331, 386, provided the objection be made by the 
 purchaser in good faith. Hendricks v. Gillespie, 25 Grat. (Va.) 181, semble. A 
 purchaser at a judicial sale was relieved from his bid where an entry of satisfac- 
 tion of a prior lien on the premises was found to be a forgery. Charleston v 
 Blohme, 15 S. 0. 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. Pagan v. Davidson, 2 Duer (N. Y.), 153; Pangborn v. Miles, 10 Abb. 
 N. 0. (N. Y.) 42. Espy v, Anderson, 14 Pa. St. 308. 
 
 ' As in Virginia, Code 1887, § 3564. 
 
 » Espy V. Anderson, 14 Pa. St. 308. 
 
 < Kenny v. Hoffman, 31 Ya. 443. Bartle v. Curtis, 68 Iowa, 202; 26 N. W. 
 Bep. 73. 
 
OF DOUBTFUL TITLES. 739 
 
 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.' 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.^ 
 Where a statute provided that a trust for the benefit of creditors 
 should be deemed discharged after the expiration of twenty-five 
 years from the time of its creation, it was held that the existence of 
 the trust constituted no objection to the title after the lapse of that 
 time.' 
 
 In regard to releases, or marginal entries upon the public records 
 showing the satisfaction of incumbrances, it is to be observed that 
 an authority to make such entry, or to execute such release, must 
 appear from the records, and if the abstract fails to show such 
 authority, the title will be held unmarketable.* 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- 
 
 ' Pangbom v. Miles, 10 Abb. N. Cas. (N. Y.) 42. 
 
 ' Belmont v. O'Brien, 2 Kern. (N. Y.) 394, where there were two mortgages 
 on the premises, one sixty-six and the other eighty-f our years old. Kip v. Hirsh, 
 103 N. Y. 565; 9 N". E. Rep. 317; Pangborn v. Miles, 10 Abb. N. C. (N. Y.) 42. 
 Morgan v. 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. 897, a Us pendens fifty years old was held 
 to be a suflBcient objection to the title. Satisfaction of n claim to the premises 
 cannot be presumed, so long as a suit asserting the claim is pending. 
 
 » Kip V. Hirsh, 103 N. Y. 565; 9 N. B. Rep. 317, where held also that such 
 statute was retrospective in its operation, and applied to trusts in existence 
 before the passage of the act. Disapproving McCahill v. Hamilton, 20 Hun (N. 
 Y.), 388. Where a vendor had been for fifteen years in possession under an 
 assignment which was on its face void as to creditors, but no creditors had ever 
 sought to impeach it, and thirty -three years had elapsed since the assignment 
 was made, the title of the vendor was held marketable. Morrison v. Brand, 5 
 Daly (N. Y.), 40. 
 
 * Warvelle Abst. 844. 
 
740 MAEKETABLE TITLE TO KEAL ESTATE. 
 
 ing the title, if the contract provides that the abstract shall show a 
 good title of record.' 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 relesisehemg ^rimaj'acie unauthor- 
 ized and void.^ 
 
 ' O'NeiU V. Douthett, 40 Kans. 689; 20 Pac. Rep. 493, reversing 39 Kans. 816; 
 Durham v. Hadley, 47 Kans. 73; 27 Pac. Eep. 105. 
 « Conley v. Dibber, 91 Ind. 413. 
 
CHAPTEE XXXII. 
 
 F THE RIGHT OF THE VENDOR TO PERFECT THE TITLE. 
 
 BEFORE THE TIME FIXEB 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. § 813. 
 
 (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. § 819. 
 REFERENCE OF THE TITLE TO MASTER IN CHANCERY. 
 
 When directed. § 330. 
 
 When refused. § 331. 
 
 At what stage of the proceedings reference may be made. § 323. 
 
 Procedure. Costs. § 823. 
 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 necessary to make the title good 
 can be accomplished before the time specified for making the con- 
 veyance.' The vendor is not necessarily guilty of fraud in repre- 
 
 '1 Sugd. Vend. (8th Am. ed.) 396; 1 Chltty Cent. (11th ed.) 431; Will. Eq. 
 Jur. 290. Stowell v. Robinson, 3 Bing. (N. C.) 938; In re Bryant, 44 Oh. Div. 
 218. Harris v. Carter, 3 Stew. (Ala.) 336; Clemens v. Loggins, 3 Ala. 518. 
 Dresel v. Jordan, 104 Mass. 407. Gibson v. Newman, 1 How. (Miss.) 341. Goss 
 V. Singleton, 3 Head (Tenn.), 67. Andrew v. Babcock, (Conn.^ 36 Atl. Rep. 715. 
 Dennis v. Strasburger, 89 Cal. 588; 25 Pac, Rep. 1070. Hundley v. Tibbetts, 
 (Ky.) 16 S. W. Rep. 131. More v. Smedburgh, 8 Paige Ch. (N. Y.) 600; Fried- 
 man V. Dewees, 33 N. Y. Super. Ct. 450. Mousen v. Stevens, 56 111. 335. Jones 
 V. Taylor, 7 Tex. 340; 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 
 
742 MAiJKETABLE TITLE TO KEAL ESTATE. 
 
 senting that his title is good and indefeasible, if he be able to make 
 it so before the time fixed for completing the contract.^ 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 tlie time when the contract should have been performed. 
 The law does not encourage speculation in the property of 
 strangers. 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.^ The vendor has, of course, until the time 
 fixed for completing the contract in which to remove incumbrances. 
 The delivery of tlie deed and the payment of the purchase money 
 are simultaneous acts. The vendor is not bound to raise money and 
 pay the incumbrances in advance. If he produces the holder of 
 the lien ready to satisfy it on payment he can rely on the purchase 
 money as the fund for such payment.^ 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 tlie vendor to 
 remove incumbrances before all the purchase money should be paid, 
 
 party in order to fulfill the contract on liis part, but tlie 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 con- 
 flict 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 perform- 
 ance at the time fixed for completing the contract. 
 
 ' Cases cited in last note. 
 
 ''Post, this chapter, p. 754. Webb v. Stephenson, (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 com- 
 pleting the contract. Morris v. Goodwin, (Ind. App.) 27 N. E. Rep. 985. 
 
 3 Webster v. Kings Qo. Trust Co., 80 Hun (N. Y.), 420; 30 N. Y. Supp. 357. 
 Gibson v. Newman, 1 How. (Miss.) 846. Duluth Land Co. v. Klovdahl, 55 Minn. 
 841; 56 N. W. Rep. 1119. 
 
OF THE EIGHT OF THE VENDOR TO PEEFECT THE TITLE. 743 
 
 or unless there should be circumstances in the case that would make 
 inequitable a compulsory performance by the vendee.^ 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 
 Mall not be in default in faihng to tender the purchase money if the 
 vendor does not remove the incumbrance before that time.^ The 
 purchaser should make his objections to the title in time to enable 
 the vendor to remove them.' 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.* 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.^ 
 
 Generally, in the purchase of an estate and the appointment of a 
 particular day for the completion of the title, the principal object is 
 the sale of the estate for a given sum, and the naming of the day is 
 either merely formal, or for the convenience of the parties in the pay- 
 ment of the purchase money on the one side or the execution of a 
 conveyance on the other. " The stipulation means in truth that the 
 purchase shall be completed within a reasonable time, regard being 
 had to all the circumstances of the case and the nature of the title 
 to be made."^ In a case in which the contract provided that ten 
 days should be allowed for examination of the title, and that if the 
 title proved unsatisfactory the deposit should be returned, it was 
 held that the purchaser should state his objections to the title, if not 
 approved, and that the vendor would be entitled to a reasonable 
 time thereafter in which to perfect the title, and that the purchaser 
 could not rescind the contract until he had given such notice of his 
 
 'Pate V. MoConnell, (Ala.) 18 So. Rep, 98. Post, this chapter, p. 758. 
 'Morange v. Morris, 34 Barb. (N. Y.) 311. 
 
 'More V. Smedburgh, 8 Paige (N. Y.), 600. Eaaton v. Montgomery, 90 Cal. 
 307; 37 Pac. Rep. 280. 
 'Hogan v. McMurtry, 5 T. B. Men. (Ky.) 181. 
 'Dennis v. Strasburger, 89 Cal. 583; 20 Pac. Rep. 1070. 
 •Language of Aldbrson, B., in Hipwell v. Knight, 1 Yo. & Coll. 415. 
 
744 MAKKETABLE TITLE TO EEAL ESTATE. 
 
 objections and furnished the vendor an opportunity to remove 
 them.' 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.'' And after demand, he must be allowed a reason- 
 able time in which to make out the title.^ In a suit by the pur- 
 chaser for specific performance, in which a rescission of the contract 
 is not asked as alternative relief, it is error in the court to rescind 
 the contract without giving the vendor a reasonable time in which 
 to i^erfect the title.* "We have already seen under what circum- 
 stances the purchaser will be deemed to have waived his right to 
 require a strict performance by the \'endor at the time fixed for 
 completing the contract.^ 
 
 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 lie 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." 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 acquir- 
 ing the title from that person.' But equity will not always rescind 
 a contract which it refuses to enforce, the parties being left to their 
 
 ' Anderson v. Strasburger, 92 C'al. 38; 27 Pac. Rep. 1095, citing Englander v. 
 Rogers, 41 Cal. 420; Dennis v. Strasburger, 89 Cal. 583, and Easton v. Mont- 
 gomery, supra. 
 
 ' Evans v. Boiling, 5 Ala. 550. Morgan v. Scott, 26 Pa. St. 51. 
 
 '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. 
 
 ■• Russell V. Shively, 3 Bush (Ky,), l(i2. 
 
 'Ante, ch. 8. 
 
 = Ante, p. 741. Harrington v. Higgins, 17 Wend. (N. Y.) 376. Wright v. 
 Blackley, 3 lud. 101; Wiley v. Howard, 15 Ind. 169. Taylor v. Johnson, 19 Tex. 
 351. 
 
 ' Post, p. 754. 
 
OF THE RIGHT OF THE VENDOE TO PERFECT THE TITLE. 745 
 
 remedies at law.' And, at law, in tlie case under consideration, 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 convey- 
 ance is not to be made until the last installment is paid, the pur- 
 chaser cannot refuse to pay the purchase money on the ground that 
 the title is defective,^ unless it appear that, because of the vendor's 
 insolvency, or for some other reason, the purchaser's remedy by 
 action for breach of the contract will prove unavailing.' It is 
 scarcely necessary to say that, if the covenants to pay the purchase 
 money and to convey an indefeasible title are mutual and depend- 
 ent, the vendor will not be allowed time in which to perfect the 
 title, if time be of the essence of the contract.^ 
 
 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.^ 
 
 While the vendor, as a general rule, will be allowed time in 
 which to perfect the title, extraordinary relief by way of injunction 
 or the writ of ne exeat Avill not be granted at the same time.' The 
 
 ' Ante, p. 675. 
 
 " Ante. Harrington v. Higgins and other cases cited, supra. Diggle v. Boul- 
 den, 48 Wis. 477. 
 
 ' Mclndoe v. Morman, 26 Wis. 588; 7 Am. Rep. 96. Durliam v. Hadley, (Kans.) 
 27 Pac. Hep. 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, sembU ; Holmes v. Holmes, 13 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. 88; 27 Pac. Rep. 1095. 
 
 spishback v. Williams, 8 Bibb (Ky), 842; Jarboe v. McAtee, 7 B. Mon. (Ky.) 
 279. Lesesne v. Witte, 5 S. C. 462; Bates v. Lyons, 7 S. C. 85; Lyles v. Kirk- 
 patrick, 9 S. G. 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 Russ. 604. See, 
 also, 3 Dicken's R. 497, note. 
 94 
 
746 MARKETABLE TITLE TO REAL ESTATE. 
 
 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 premises 
 he was to give in exchange, the court reversed an order of the court 
 below granting the injunction.' 
 
 The purchaser will not be allowed to forestall the vendor by 
 acquiring an outstanding right and setting it up adversely to the 
 latter.^ Specific performance will be decreed against the purchaser, 
 allowing him the amount paid for the interest. The same rule is 
 enforced at law.^ 
 
 The vendor may perfect his title if he chooses, but in the absence 
 of any agreement or covenant to that effect, there is no obligation 
 upon him so to do, and the purchaser cannot recover damages 
 against him for refusing to perfect the title.'' 
 
 § 309. AFTER THE TIME FIXED FOR COMPLETING THE CON- 
 TRACT. If the time for completing the contract has elapsed, the 
 vendor may nevertheless insist upon his right to perfect the title, 
 except in certain cases hereafter to be mentioned.^ As a general 
 rule it is sufficient if he be able to convey a good title at any time 
 before decree in any proceeding in which it is sought to rescind or 
 to enforce the contract.^ He may perfect the title at any time 
 
 ' Baldwin v. Salter, 8 Paige (N. Y.), 472. 
 
 s 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. G.) 445. Bush v. Marshall, 6 How. 
 (U. S.) 691. Roller v. Effinger, (Ya.) 14 S. E. Rep 337. 
 
 'Ante, "Estoppel," p. 524. Fosga>,e v. Herkimer Mfg. Co., 12 Barb. (N. Y.) 
 352. 
 
 ^Presbrey v, Kline, 20 D. C. .513 
 
 ' Post, p. 749. 
 
 f Fry Sp. Perf. (3d Am. ed.) § 1349; 3 Dan. CI). 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 Euss. & Myl. 293; Seton v. Slade, 7 Ves. 270; 
 Eyston v. Symond, 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. Pierce V. Nichol, 1 Paige (N. Y.), 244; Dutch Church v. 
 Mott, 7 Paige (N. Y.), 77; Voorhees v. De Meyer, 3 Barb. (N. Y.) 37. Jenkins 
 V. Whitehead, 15 Miss. 577; Moss v. Davidson, 9 Miss. 112; Fletcher v. Wilson, 
 
OF THE EIGHT OF THE VENUOK TO PERFECT THE TITLE. 747 
 
 before decree by obtaining a release of incumbrances^ or of adverse 
 claims.* Therefore, where the contract required the conveyance of 
 a fee and the vendor had only a life estate, but pending a suit by 
 him for specific performance the life estate fell in, the purchaser 
 was compelled to complete the contract.' So, also, where the ven- 
 dor became divested of the title, but reacquired it pending suit by 
 the purchaser for rescission.'' 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.'' Where the contract does not provide a 
 
 1 Smed. &M. Ch. (Miss.) 376. Luckett v. Williamson, 37 Mo. 388. Wilson v. 
 Tappan, 6 Ohio, 173. Dubose v. James, McMull. Eq. (S. C.) 55. Morgan v. 
 Scott, 26 Pa. St. 51; Townsend v. Lewis, 35 Pa. St. 135. Syme v. Johnston, 3 
 Call (Va.), 558. Second Union, etc., Soc. v. Hardy, 81 N. J. Eq. +42; Young v. 
 Collier, 31 N. J. Eq. 444. McKinney v. Jones, 55 Wis. 39. jNIitchell v. Allen, 
 69 Tex. 70. Wynne v. Morgan, 7 Yes. 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 hear- 
 ing. Haggart v. Scott, 1 Euss. & Myl. 393. In Hale v. New Orleans, 18 La. 
 Ann. 321, it seems to have been held that the vendor had no right in that case, to 
 perfect the title after the purchaser had begun a suit for rescission. The ven- 
 dor may perfect the title and tender a deed at any time before final decree for 
 rescission is actually enrolled and signed. Fraker v. Brazelton, 13 Lea (Tenn.), 
 278. 
 
 ' Soper V. Kipp, 5 N. J. Eq. 383; Young v. Collier, 31 N. J. Eq. 444. 
 
 ''Eystonv. Symond, 1 Yo. & Col. Ch. 608. McKay v. Carrington, 1 McLean 
 (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 permitted the 
 premises to be sold for delinquent taxes, if the time in which the premises may- 
 be redeemed has not expired. Marsh v. WyckofE, 10 Bosw. (N. Y.) 202. 
 
 8 Jenkins v. Fahig, 73 N. Y. 358. 
 
 * Jenkins v. Whitehead, 7 8m. & M. (Miss.) 577. 
 
 ' Wooding V. Crain, 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, p. 754. 
 
748 MARKETABLE TITLE TO EEAL ESTATE. 
 
 time within whicli the vendor is to remove defects shown by the 
 abstract, a reasonable time should be allowed therefor.' 
 
 The general statement frerjiiently 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 some- 
 times years, after the institution of the si;it. The rule then, it is 
 conceived, should be taken with tliis qualification, namely, that if at 
 the hearing, the value of the property, the situations of the parties, 
 and the general circumstances of the transaction have so changed as 
 to render it inequitable to comj)el the purchaser to receive the per- 
 fected 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 iijjon a rescission without affording 
 the vendor an opportunity to perfect the title.^ Where neither the 
 terms of the contract nor the circumstances of the parties make per- 
 formance at the specified time material, the purchaser cannot, on 
 finding the title defective, rescind the contract without notifying the 
 vendor to remove the defects within a reasonable time.' The ques- 
 tion 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 requiring 
 the purchaser to take the after-acquired title in lieu of damages for 
 breach of the covenants, has already been considered.^ 
 
 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 
 
 ' 1 Sugd. Vend. (8th Am. cd.) 397. Easton v. Montgomery, 90 Cal. 307; 27 
 Pac. Rep. 280. 
 
 'Ante, p. 194. 1 Svigd. Vend. (8th Am. cd.) 407; Fry Sp. Perf. § 1307. Seton 
 T. SUide, 7 Ves. 36.5, 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. 
 
 «>SchifEer v. Dietz, 83 N. V. 300; Myers v. DeMier, 52 N. Y. 647. 
 
 'Ante, p. 507. 
 
OF THE EIGHT OF THE VENDOR TO PEKFECT THE TITLE. 749 
 
 days against certain parties having adverse interests, establish a par- 
 ticular fact necessary to the validity of Ins 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 agree- 
 ment 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 liti- 
 gation at his pleasure, while the purchaser remained bound for an 
 unknown period, with no guaranty of getting a title in the end.'" 
 
 § 310. Exceptions to the rule : (i) Where time is of the 
 essence of the contract. The rule which allows the vendor to 
 remove objections to the title after the time fixed for completing 
 the contract does not apply where time is of the essence of the con- 
 tract.^ Thus, if a man buy a house, to be used by him as a resi- 
 dence,' 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.^ 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.° 
 If the thing sold be of greater or less value, according to the efflux 
 
 'People V. Open Board, etc., 93 N. Y. 98. In Emerson v. Roof, 66 How. Pr. 
 (N. Y.) 125, the purchaser was allowed twenty days in which to perfect the title. 
 
 '1 Sugd. Vend. (8th Am. ed.) 404; Pry 8p. Perf. (3d Am. ed.)§ 1041, et seq. 
 
 "Gedye v. Duke of Montrose, 36 Beav. 45; Tilley v. Thomas, L. R., 3 Oh. 61. 
 Distinguish these cases from Webb v. Hughes, L. R., 10 Eq. 281, where the con- 
 ditions 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.) § 1044, etseq. "Where property was purchased 
 for immediate use as a lumber yard, a delay of four months in perfecting the 
 title was held material. Parsons v. Gilbert, 45 Iowa, 33. 
 
 'Post, "Exceptions," 4, 8 and 9. Fry Sp. Perf. (3d Am. ed.) § 1044, et seq. 
 Express stipulation in the contract, Mackey v. Ames, 31 Minn. 103; 16 N. W. 
 Rep. 541; by notice, Myers v. De Meier, 4 Daly(N. Y.), 843; affd., 53 N. Y. 647; 
 Einerson v. Roof, 66 How. Pr. (N. Y.) 135. 
 
750 MARKETABLE TITLE TO EEAL ESTATE. 
 
 of time, then time is of the essence of the contract.' 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 
 coiirts of equity. At law time is always deemed of the essence of 
 the contract ; and, if the vendor cannot produce a clear title at the 
 appointed time, the purchaser will be entitled to his action for 
 damages.^ 
 
 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.^ It is apprehended that this rule would 
 not apply if the j^art 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 element 
 of the contract, he should demand a title and offer to rescind at the 
 time fixed for completing the contract if the vendor be unable to 
 perform. If he continues in possession and proceeds with the pay- 
 ment of the purchase money after that time, he cannot, as a general 
 rule, deny the right of the vendor to perfect the title.'' If he gives 
 time after the day fixed for the performance of the contract, he will, 
 in most cases, be deemed to have waived the objection that time 
 was material. ° The vendor as well as the purchaser may avail him- 
 self of the objection that time was of the essence of the contract. 
 
 ' Hepwell V. Knight, 1 Yo. & Coll. 419. Hoyt v. Tuxbuiy, 70 111. 331. 
 
 ' ] Sugd. Vend. (8tli Am. ed.) 397 (258). 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, p. 211. 
 
 '1 Sugd. Vend. (8th Am ed.) 331 (218). Chamberlain v. Lee, 10 Sim. 444. 
 
 ■i Evans v. Boiling, 5 Ala. 550. 
 
 ' Stevenson v. Polk, 71 Iowa., 278. What is meant by the maxim that time is 
 not of the essence of the contract in equity, has been nowhere more clearly 
 stated than in Mr. Bispham's Principles of Equity (3d ed.), § 391: "A court of 
 equity will relieve against, and enforce specific performance, notwithstanding a 
 failure to keep the dates assigned by the contract, either for the completion, or 
 the steps towards completion, if it can do justice between the parties, and if 
 there is nothing in the express stipulations between the parties, the nature of 
 the property, or the surrounding circumstances which would make it inequitable 
 to interfere with and modify the legal right. This is what is meant and all that 
 is meant when it is said that in equity time is not of the essence of the con- 
 tract." Language of Lord Cairns in Tilley v. Thomas, L. R., 3 Ch, App. &f. 
 
OF THE RIGHT OF THE VENDOR TO PERFECT THE TITLE. 751 
 
 He cannot be compelled to hold property, fluctuating in value, 
 until the purchaser can pay for it.' But if time were not material 
 he cannot refuse to convey because the purchase money was not 
 paid on the day fixed.^ It is obvious that the purchaser cannot 
 object that time is material when he is in possession, and the failure 
 to convey is brought about by his default in the payment of the pur- 
 chase money.^ 
 
 § 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 aid dependent, and the vendor, at the time fixed 
 by the contract, has not such title as he covenanted to convey,* and 
 this though no demand for the deed was ever made, the time for 
 delivering the deed having been specified in the contract.' But if 
 the covenants to make title on the one part, and to pay the purchase 
 money on the other, are independent, and the passing of the title is 
 subject to the payment of the purchase money as a condition prece- 
 dent, the vendor may, at any time, perfect his title before the pur- 
 chase money is paid, and it is no defense to an action for the 
 purchase money that the title is incomplete.^ 
 
 § 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 
 
 •Fuller V. Hovey, 2 Allen (Mass.), 335; Goldsmith v. Guild, 10 Allen (Mass.), 
 339. Here the contract was dated March nineteenth, and was to he completed 
 in ten days. The purchaser offered to perform March thirty-first, but the ven- 
 dor refused. Specific performance was denied, there being evidence that the 
 value of the property had changed. But in Barnard v. Lee, 97 Mass. 93, 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. Brashier v. Gratz, 6 Wh. (U. S.) 
 533. See, also, Presbrey v. Kline, 30 D. C. 513. 
 
 '' Taylor v. Longworth, 14 Pet. 174. 
 
 'Cassell V. Cooke, 8 S. & R. (Pa.) 368; 11 Am. Dec. 610. 
 
 *Stitzel V. Copp, 9 W. & S. (Pa.) 89; Magaw v. Lothrop, 4 W. & S. (Pa.) 321. 
 Clark V. Weis, 87 111. 438; 29 Am. Rep. 60. 
 
 ' Craig v. Martin, 3 J. J. Marsh. (Ky.) 50; 19 Am. Dec. 157. 
 
 "Ante, §§86, 253. Robb v. Montgomery, 30 Johns. (N. Y.) 15; Greenby v. 
 Cheevers, 9 Johns. (N. Y.) 126. 
 
752 MARKETABLE TITLE TO EEAL ESTATE. 
 
 objections to the title and require the purchaser to accept a convey- 
 ance.' So. e con verso, 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.^ 
 
 § 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.* 
 Therefore, where the improvements on the premises were destroj'ed 
 by fire after the time fixed for completing the contract, and tlie 
 vendor furnished no sufiicient excuse for not tendering a suffi- 
 
 > 1 Sugd. Vend. (8th Am. ed.) 408. Guest v. Homfray, 5 Ves. 818. 
 
 ' Ante, § 193. Presbrey v. Kline, 20 D. C. 513. 
 
 5 Bisph. Eq, (3d ed.) § 394; 2 Beach Mod. Eq. Jur. § 495. McKay v. Carring- 
 ton, 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; Hendricks v. Gillespie, 25 Grat. (Va.) 181, in which 
 case the war of 1861-1865 intervened between the purchase of the land and the 
 vendor's suit for specific performance, so that the value of the land had greatly 
 depreciated. In Hepburn v. Auld, 5 Cranch (U. S.), 279, LivtMosTON, .!., 
 observed: " It is said by the English authorities that lapse of time may be dis- 
 regarded in equity in decreeing a specific performance of n contract for the sale 
 of land. But there is a vast difference between contracts for land in that country 
 and this. There the lands have a known, fixed and staple value. Here the price 
 is continually fluctuating and uncertain. A single day often makes a great 
 difference, and in almost every case time is a very material circumstance." 
 These remarks were approved in Richmond v. Gray, 3 Allen (Mass.), 25, the 
 court adding: " At the present day business is done with such comparative 
 speed, and changes of property and in places of business are so frequent, that it 
 would in most ca3es be inequitable to compel a party to accept property after 
 any considerable delay, or to compel him to keep his funds unemployed through 
 fear that the court may order him to accept it, on terms of delay that he has 
 never assented to." In Darrow v. Horton, 6 N. Y. State Rep. 718, an objection 
 to the title not having been removed until after the usual renting period, whereby 
 an opportunity to rent the premises was probably lost, specific performance at 
 the suit of the vendor was denied. Where time was not originally of the essence 
 of the contract, a delay of two months in making title was held immaterial, even 
 though the premises had somewhat decreased in value. Tapp v. Nock, (Ky.) 12 
 S. W. Rep. 713. Delay of three months and twenty days after last installment 
 of purchase money became due, held not material, no injury to the purchaser 
 being shown. Wooding v. Grain, 10 Wash. 35; 38 Pac, Rep. 756. 
 
OF THE EIGHT OF THE VENDOE TO PERFECT THE TITLE. 753 
 
 cient deed at the appointed time, it was held that he could not 
 thereafter claim the right to perfect the title,* 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.^ 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.^ 
 
 § 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.* This exception, of course, 
 cannot apply if the purchaser bought with knowledge that the title 
 was defective.^ 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 satisfac- 
 tion of the covenants.^ But a mere innocent misrepresentation of 
 the title will not deprive the vendor of his right to perfect the title.' 
 And if the vendee waives the fraud by continuing in possession and 
 negotiating with the vendor, the latter may insist upon perfecting 
 the title.' It has been said that if there is great inadequacy of con- 
 
 > Smith V. Cansler, 83 Ky. 367. 
 
 ' Merchants' Bank v. Thompson, 55 N. Y. 7. 
 
 ' Spaulding v. Fierle, 86 Hun, 17, citing Merchants' Bank v. Thompson, 55 N. 
 Y. 7, and Schmidt v. Eeed, 132 N. Y. 116; 30 N. E. Rep. 373, in neither of which 
 cases, however, does it appear that an opportunity to resell had been lost. 
 
 «Fry Sp. Perf. (3d Am. ed.) § 1342. Dalby v. Pullen, 1 Russ. & Myl. 396. 
 Meeks v. Garner, 93 Ala. 17; 8 80. Rep. 378; Hickson v. Linggold, 47 Ala. 449. 
 Christian v. Cahell, 22 Grat. (Va.) 82. Brown v. Haff, 5 Paige (N. Y.), 241. 
 Easton v. Montgomery, 90 Gal. 307; 27 Pac. Rep. 380. Moss v. Hanson, 17 Pa. 
 St. 379. Blackmore v. Shelby, 8 Humph. (Tenn.) 439; Woods v. North, 6 
 Humph. (Tenn.) 309; 44 Am. Dec. 313. Green v. Chandler, 35 Tex. 160. Hays 
 V. Tribble, 3 B. Mon. (Ky.) 106. But see SchiflEer v. Dietz, 83 N. Y. 300, where 
 a different view seems to have been taken. 
 
 'Harris v. Carter, 3 Stew. (Ala.) 333; Teague v. Wade, 59 Ala. 369. Reeves 
 V. Dickey, 10 Grat. (Va.) 138. The right to perfect tlie title will not be conceded 
 where the defect was known to the vendor and by him concealed from the pur- 
 chaser. Kenny v. Hoffman, 31 Grat. (Va.) 442. 
 
 « Ante, p. 510. Alvarez v. Brannan, 7 Cal. 503; 68 Am. Dec. 275. Elliott v. 
 Blair, 6 Coldw. (Tenn.) 185; Blackmore v. Shelby, 8 Humph. (Tenn.) 438. 
 
 'Buford V. Guthrie', 14 Bush (Ky.), 690. 
 
 8 SchifEer v. Dietz, 83 N. Y. 800. 
 95 
 
754- MARKETABLE TITLE TO EEAL ESTATE. 
 
 sideration, the vendor will be strictly held to the performance of the 
 contract at tlie appointed time.^ 
 
 § 315. (6) Want of colorable title. The rule does not apply 
 where the vendor had no power whatever to sell. The vendor can- 
 not undertake to substitute the contract of a third person for his 
 own.^ This exception will not, of course, apply where the vendor 
 is apparently the owner, or has a colorable title.' Nor where the 
 title fails to a portion of the estate only.* !N"or where the vendor 
 gets in the legal title, or procures the holder thereof to join in a con- 
 veyance of the estate by the time hxed for completing the contract.^ 
 It has been held that if the vendor have only an equitable title he 
 
 ' Seymour v. Delancey, 7 Paige (N. Y.), 445, 530, citing Kien v, Stukely, 2 
 Bro. P. C. 396. 
 
 « 2 Beach Mod. Eq. Jur. § 613; Fry Sp. Perf. (3d Am. ed.) § 1343. In re Bry- 
 ant, L. R., 44 Ch. Div. 218. "The vendor cannot say, 'I will substitute a con- 
 tract 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 had 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 3I.\jssh.vi.t, in Garnett v. Macon, 6 Call 
 (Va.), 308, 370. Pipkin v. James, 1 Humph. (Tenn.) 32.^; 34 Am. Dec. 653. Oli- 
 ver 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 performance at his suit 
 was denied, even though he tendered a conveyance in which his wife joined. 
 Luse V. Dietz, 46 Iowa, 305. Contra, Chrissman v. Paitee, 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 per- 
 son's title. Ley v. Huber, 3 Watts (Pa.), 367. In Wells v. Lewis, 4 Mete. (Ky.) 
 369, it was held that a title under a deed from a joint executor, invaUd because of 
 failure of the other executor to join in the deed, could not be perfected without 
 the purchaser'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. 
 
 * As in Dresel v. Jordan, 104 Jlass. 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 husband and wife 
 was tendered to the purchaser. But see Luse v. Deitz, 46 Iowa, 203, 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 purchaser may, of course, detain the purchase money. 
 
OF THE EIGHT OF THE VENDOE TO PEEFECT THE TITLE. 755 
 
 will not be entitled to time in wliich to get in the legal title. The 
 purchaser cannot be compelled to await the termination of proceed- 
 ings instituted for that purpose.^ But of course, he may get in the 
 legal title if he can at any time before that fixed for completing the 
 contract.^ And if the purchaser 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.^ The rule that the vendor may perfect the title at any 
 time before that fixed for pei-formance 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, prohibited by statute from selling or disposing of the same.* 
 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 
 conveyance.^ 
 
 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 which 
 
 In Webber v. Stepbenson, (Wash.) 39 Pac. Rep. 952, it was beld 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 complet- 
 ing the contract, there would seem to be no question as to the right of the pur- 
 chaser 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, 32 Gat. (Va.) 104. 
 
 = Beach Mod. Eq. Jur. § 813; Tiernan v. Roland, 15 Pa. St. 439. Townshend v. 
 Goodfellow, 40 Minn. 313. 
 
 » Scott v. Thorp, 4 Edw. Ch. (N. Y.) 1. Burks v. Davies, 85 Cal. 110; 34 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. 335; 3 Pac. Rep. 841; Hoover v. Chambers, 
 3 Wash. Ty. 36; 13 Pac. Rep. 547. 
 
 ^Colcord v. Leddy, 4 Wash. St. 791; 31 Pac. Rep. 330. 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.. 81. Contra, Luse v. Deltz, 
 46 Iowa, 305. 
 
756 MAEKETABLE TITLE TO EEAL ESTATE. 
 
 to purchase the estate when he has no pretensions to the title.^ 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 ot 
 equity will not compel specific performance by the purchaser, 
 though the actual owner offer to make the seller a title ; " for any 
 seller ought to be a bona fide contractor," and it would lend to 
 infinite mischief if an owner were permitted to speculate upon the 
 sale of another's estate.^ The rule that the vendor may, with cer- 
 tain exceptions, perfect his title at any time before decree, cannot 
 be so construed as to compel the purchaser to accept a conveyance 
 from a stranger. The purchaser has a right to the securities afforded 
 by the covenants of his vendor.' 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.* 
 
 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 abld 
 to procure' the title by the time fixed for completing the contract, 
 no reason is prescribed 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 
 
 ' Benedict v. Williams, 39 Minn. 77; 38 N. W. Rep. 707. 
 
 » Tendring v. London, 3 Eq. Cas. Abr. 680. Burks v. Davis, 85 Cal. 110; 24 
 Pac. Rep. 613. 
 
 ' Ante, p. 47. Reynolds v. Smith, 6 Bl. (Ind.) 300, 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 objection was made that an 
 executorial trustee in that case had no authority under the will to sell the tes- 
 tator'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, (Jlinn.) 53 N. "W. Rep. 364. Where the title was in a 
 minor, and the vendor procured and tendered a deed from him, and the purchaser 
 accepted such deed, it was held that the contraet would not be rescinded there- 
 after, upon the ground that the minor might disaffirm 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. 
 
OF THE RIGHT OF THE VENDOE TO PERFECT THE TITLE. 757 
 
 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 
 ground that the record must show title in the grantor.' The reasons 
 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,^ is 
 necessary to perfect his title, the purchaser cannot be compelled to 
 complete the contract.' 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.* 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 ? 
 
 § 316. (7) Laches of vendor. The vendor cannot insist upon 
 
 1 George v. Conhaim, 38 Minn. 338; 37 N. W. Rep. 791. This decision was 
 really obiter, the court having overlooked the fact that there had been a convey- 
 ance of the legal title to the vendor. 
 
 « Andrew v. Babcock, (Conn.) 26 Atl. Eep. 715. 
 
 'People V. Open Board, etc., 93 N. Y, 98. Eggers v. Busch, 154 111. 604; 39 
 N. E. Rep. 619. Reynolds v. Strong, 83 Hun (N. Y.), 203; 31 N. Y. Supp. 
 339. 
 
 ■•Hoock V. Bowman, 42 Neb. 87; 60 N. W. Rep. 391. But see McCann v. 
 Edwards, 6 B. Mon. (Ky.) 308, 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, (N. J. Eq.) 26 Atl. Rep. 334, a 
 vendor was allowed forty -five days in which to perfect the title by suit to com- 
 pel reformation of a deed which was intended to convey a fee, but which, from 
 want of words of inheritance, conveyed only a life estate. 
 
758 MARKETABLE TITLE TO EEAL ESTATE. 
 
 his right to perfect the title after the time lixed 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 
 part, or in bringing his suit for specific performance, or in prose- 
 cuting the suit after it has been instituted.' A party cannot call 
 upon a court of equity for this extraordinary relief " unless he has 
 shown himself ready, desirous, prompt and eager. "^ 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.^ 
 
 § 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.^ Thus, where the 
 vendor agreed to make a good title " on demand," time in which to 
 perfect the title after demand was refused.^ If the contract 
 
 I 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. Welcli v. Matthews, 98 Mass. 131. 
 In Kimball v. Bell, 49 Kans. 173; 30 Pao. Rep. 240, a delay of seven months hy 
 the vendor in removing an incumbrance from the premises, after the purchase 
 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, 38 N. Y. 347. 
 
 * 2 Beach Mod. Eq. Jur. § 593. At one time it seems to have been the doctrine 
 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 contract. Per Lord 
 Thurlow in Gregson v. Riddle, cited in Seton v. Slade, 7 Ves. 268, by Sir 
 Samuel Romilly 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; Bisph. Eq. (3d ed.) § 396. Lowery v. NlccoUs, 11 
 111. App. 450. 
 
 'Goetz V. Walters, 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 purchase 
 
OF THPJ RIGHT OF THU VFNDOR TO PliKFECT TUE TITLE. 759 
 
 expressly provides that the title shall be made good ^\•ithin a speci- 
 fied time, if it proves defective the vendor cannot claim the right to 
 perfect the title after the expiration of that time.' As a general 
 rule until the time fixed for completing the contract the purchase!* 
 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.^ Of course the specification in the contract of a time at 
 which it is to be performed will not of itself make time material f 
 it must appear that the parties really intended to make such time an 
 essential element of their agreement ;* " a material object to which 
 thej' looked in the first conception of it."' 
 
 It has been held that the vendor cannot claim the risrht 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." Such an agreement, however, is 
 
 money and execution of securities for the balance, it was lield that he was enti- 
 tled 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, 43 Minn. 304; 44 N. W, Rep. 203. 
 
 ' 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." 
 
 ' Morange v. Morris, 42 N. Y. 48; Zorn v. McParland, 33 N. Y. Supp. 770. 
 
 3 2 Beach Mod. Eq. Jur. § 593. 
 
 * Language of Gray, J., in Barnard v. Lee, 97 Mass. 94, citing Molloy v. 
 Egan, 7 Ir. Eq. 593. Jones v. Robbins, 39 Me. 351 ; 50 Am. Dec. 593. 
 
 'Language of Lord Ebskine in Hearne v. Tenant, 13 Ves. 389. 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. 
 
 «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. 
 
7G0 ^FARKETABLE TITLE TO KEAL ESTATE. 
 
 implied in every case in which time is ( if 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 pi-oviding that time shall be material.' 
 
 § 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 nis part the pur- 
 chaser may by notice of a purpose to rescind in the alternative, 
 restrict liim to a reasonable time within which to perfect the 
 title.^ And the vendor has the same right with respect to the pay- 
 ment of the purchase money.' But neitlier party can arbitrarily 
 terminate the rights of the other in this respect ; the notice must 
 fix a reasonable limit.'' Thus, a notice by the purchaser, after 
 negotiations respecting the title had been going on for more than 
 three years, that he would rescind unless a marketable title were 
 shown within fi\'e weeks, was held uni'easonable and ineffectual.' 
 It is not necessar3', for the purposes of this exception, that the 
 notice should be in writing.* 
 
 JJ310. 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 performance 
 is claimed by him, or rescission is sought by the purchaser.' But in 
 
 ' Mackey v. Ames, 31 Miun. 103; 16 N. W. Rep. 541. 
 
 'Fry. Sp. Perf. (3d Am. ed.) g 1062; 3 Beach Mod. Eq. Jur. §593. Prothro 
 v. Smith, 6 Rich. Eq. (S. (:.)334. 
 
 ^ Ante, e.x:ception 7. Hatch v. Cobb, 4 Johns. (N. Y.) 559. Jackson v. Ligon 
 3 Leigh (Va.), 161. 
 
 ■•Fry Sp. Perf. (3d Am. ed.) | 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 ,Tiiny. 1st, held insufficient in Thompson v. Dulles, 5 
 Rich. Eq. (8. C.) 370. 
 
 " Nokes V. Lord Kilmorey, 1 DeG. & Sm. 444. 
 
 ' Hughes V. JIcNider, 90 N. 0. 248. On bill by the purchaser for rescission, the 
 vendor should be allowed a reasonable time in which to clear up the title. Met- 
 calf T. Dallam, 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 ti suit by the pnrcliascr to enjoin the collection of the purchase money. Maya 
 
OF THE EIGHT OF THE VENDOE TO PEEFECT THE TITLE. 761 
 
 an action at law to recover back the purchase money, or for breach 
 of the contract, except in those States in which the distinction 
 between legal and equitable procedure is abolished, or in which 
 equitable defenses may be interposed in actions at law, it is pre- 
 sumed that unless the vendor had perfected his title at the time of 
 trial,' 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 m 
 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 himseK 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.^ But wherever tlie distinction between legal and equi- 
 
 V. Swope, 8 Grat. (Va.) 46. See, also, McCann v. Edwards, 6 B. Mod. (Ky.) 208. 
 In Bell V. Sternberg, 53 Kans. 571, the vendor, after being sued by the pur- 
 chaser to recover back the purchase money, was allowed to perfect the title But 
 see Pipkin v. James, 1 Humph. (Tenn.) 325; 34 Am. Dec. 653, where it seems to 
 have been held that the vendor cannot 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, 84 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 dam- 
 ages in favor of the purchaser was a virtual rescission of the contract. 
 
 • Lutz v. Compton, 77 Wis. 584; 46 N. W. 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. 306. 
 
 * In Hays v. Tribble, 8 B. Mon, (Ky.) 106, the purchaser obtained an injunction 
 against a judgment for the purchase money on the ground that the title was 
 unmarketable. The defendant, instead of asking time to remove the objections 
 to the title, claimed that they were untenable, and tendered a conveyance which 
 
 96 
 
762 MARKETABLE TITLE TO EEAL ESTATE. 
 
 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 ' or by the purchaser 
 to recover back what has been paid,^ or to recover damages for a 
 breach of the contract,' 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 JSIew York, however, it 
 has been held that if neither party, in an action for damages for 
 breach of contract to convey free of incumbrances, asks equitable 
 relief, it will not avail the defendant that incumbrances were 
 removed by him before the trial.'' 
 
 The collection of the purchase money will, of course, be suspended 
 while the title is being perfected.' The vendor gets interest 
 on the purchase money, and the purchaser receives the rents and 
 profits." 
 
 § 320. REFEREITCE OF TITLE TO MASTER IN CHANCERY. 
 When directed. In suits for the specific performance of contracts 
 for the sale of lands, whether l,)y 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 
 
 the court below decreed that the complainant should accept. This was reversed 
 on appeal, and the vendor, defendant, having gone to trial below on the' 
 sufficiency of the ob.iections to the title, time in which to remove them was 
 refused. 
 
 ' As in "Williams v. Porter (Ky.), 21 S. W. Rep. 643 (not officially reported)- 
 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 incum- 
 brances might be removed up to the time of trial. In action for the purchase 
 money of land, the purchaser cannot defend on the ground that the conveyance 
 to him is defective in that it fails to contain in the body thereof the name of a 
 party who signed it, if at the trial the vendor tenders a deed in which the objec- 
 tion is removed. Keeble v. Bank, (Ala.) 9 So. Rep. 583. 
 
 ' Lockwood V. Hannibal & St. J. R. Co., 65 Mo. 233. 
 
 ' In Haynes v. Parley, 4 Port. (Ala.) 528, it seems to have been considered 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. 835. 
 
 'Jones V. Taylor, 7 Tex. 240; 50 Am. Dec. 48. 
 
 « 2 Bisph. Bq. § 392. Post, p. 766. 
 
OF THE RIGHT OF THE YENDOE TO PERFECT THE TITLE. 763 
 
 contract requires can be made.' It is said that the purcnaser is 
 entitled to a reference, even though he knows of no objection to the 
 title.^ 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.' 
 The reference is a matter of right and may be directed without the 
 consent of the other party.* And it has been held error in the 
 court to refuse a reference when asked by either party.^ 
 
 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.* 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.' 
 Nor where the purchaser has waived all objections to the title.^ Nor 
 where the conditions of sale provide that the vendor shall not be 
 required to show a title.' The inquiry, if directed, will not be 
 extended to matters expressly excluded by the terms of sale, as 
 where they provide that the production of title shall begin with a 
 particular instrument, or shall not be extended back beyond a cer- 
 tain period.'" 
 
 » 1 Sugd. Vend. (8th Am. ed.) 526; Fry Sp. Perf. (3d Am. ed.) g§ 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. 
 
 ^Lyle V. Earl of Yarborough, John. 70. 
 
 * Atkinson on Marketable Titles, 326. Brooke v. Clarke, 1 Swanst. 551. Gen- 
 try 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. 
 
 8 Palmer v. Eichardson, 3 Strobh. Eq. (S. C.) 16. Fry Sp. Perf. (3d Am. ed.) 
 §§ 1300, 1305. As to what amounts to waiver of objections, see ante, p. 183. 
 
 ' Hume V. Bentley, 5 De G. & Sm. 520. 
 
 '» Corrall v. Cattell, 4 M. & W. 734. 
 
764 MARKETABLE TITLE TO REAL ESTATE. 
 
 If a defect in the title is alleged, and has been prominently put 
 forward in the pleadings, the court may decree or deny specific per- 
 formance without a reference to the master,' as where the bill and 
 answer discloses that a title cannot be made.^ 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.^ 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.'' In a suit by the vendor for specific 
 performance in which the purchaser answered that the title was 
 defective, but did not ask a reference, and the proof did not show 
 that the title was doubtful, it was held that the court did not err in 
 decreeing specific performance without referring the title.' Gen- 
 erally it may be stated that the purchaser will not be entitled to a 
 reference where the court is in possession of all the facts affecting 
 the title.^ 
 
 § 322. At what stage of the proceedings reference directed. 
 The inquiry as to title in a suit for specific performance may 
 be made, (1) on motion before answer ; (2) on motion after the 
 answer, but before hearing, and (3) at the hearing.'' 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 
 
 > Pry Sp. Perf. (3cl Am. ed.) § 1280. Tillotson v. Gesner, 33 N. J. Bq. 313. See 
 Linn V. McLean, 80 Ala. 360. In a suit of specific performance in which want 
 of title is alleged, if the court is satisfied that the objections to the title exist and 
 are well founded, it will not direct a reference to the master. Dominick v. 
 Michael, 4 Sandf. (N. Y.) 374. It is not hound to direct a reference in such a 
 case. Paslay v. Martin, 5 Rich. Eq. (S. C.) 851. Omerod v. Hardman, 5 Ves. 
 722; Cooper v. Denne, 1 Ves, 565. 
 
 «2 Dan. Ch. Pr. 1215; Frost v. Brunson, 6 Yerg. (Tenn.) 36. 
 
 » Jackson v. Ligon, 3 Leigh (Va.), 161. 
 
 'Frost V. Brunson, 6 Yerg. (Tenn.) 36. See, also, Mlddleton 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. 
 
 6 Core V. Wigner, 32 W. Va. 377; 9 S. E. Rep. 36. 
 
 'Goddiu V. Vaughn, 14 Grat. (Va.) 102, 128; Thomas v. Davidson, 76 Va. 838. 
 
 ■■Fry Sp. Perf. (3d Am. ed.) §§ 1323, 1324, etmq. Middleton v. Shelby, 19 W. 
 Va. 175. 
 
OF THE RIGHT OF THE VENDOR TO PERFECT THE TITLE. 765 
 
 having the master's report on the title, and a subsequent decision 
 that there is no subsisting agreement.' It further seems, however, 
 that the defendant, after a reference has been made, may file his 
 answer setting up any defense he pleases.' 
 
 § 323. Procedure. Costs. Testimony as to all matters of fact 
 material to the title may be taken before the master.' 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.^ It has been held, however, 
 that a report merely stating that a good title could be made, was 
 sufficient.^ 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 the title, and 
 exception thereto be overruled, the suit will be dismissed.^ It seems, 
 however, that even after an exception to the report by the vendor 
 has been overruled, he will be allowed further time in which to 
 remove an objection to the title.'' 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.^ 
 
 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.' But if the purchaser be unable to sustain objec- 
 
 ' Language of Lord Bldost in Morgan v. Shaw, 3 Mer. 138. 
 
 'Emery v. Pickering, 13 Sim. 583. 
 
 ^ The American practice, where the title is referred, is indicated in the follow- 
 ing language of Chancellor Kent in McComb v. Wright, 4 Johns. Ch. (N. Y.) 
 659, 670 : "I shall direct the usual reference to a master, to examine whether a 
 good title can be given by the plaintiffs for the house and lot sold to the defend- 
 ants, 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. 
 
 «Bart Vejd. (5th ed.) 1111; Fry Sp. Perf. (3d Am. ed.) § 1354. 
 
 ■> Curing V. Plight, 2 Ph. 616; Portman v. Mill, 1 Buss. & Myl. 696. 
 
 n Sugd. Vend. (8th Am. ed.) 526; 2 Dan. Ch. Pr. 1218; Pry Sp. Perf. (3d 
 Am. ed.) § 1351. Jendvine v. Alcock, 1 Mad. 597. 
 
 » Green v. Chandler, 25 Tex. 148. 
 
766 MAEKETABLE TITLE TO EEAL ESTATE. 
 
 tions to the title ujiion which the reference was made, costs will be 
 decreed against him.^ Of course a party excepting to the master's 
 report must pay the costs of the exceptions if they be overruled.^ 
 § 324. INTEREST ON THE PURCHASE MONEY WHILE THE 
 TITLE IS BEING PERFECTED. In equity the purchaser of an estate 
 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,^ especially if he be in the actual 
 possession and enjoyment of the estate.* But if he be justified in 
 declining to take possession on the ground that there are material 
 objections to the title, he cannot be compelled to pay interest.^ 
 And, where a purchaser, finding that the title was defective, offered 
 to rescind the contract and return tlie premises to the vendor, and 
 the offer was refused, it was held that he could not thereafter be 
 required to pay interest, even though he was in possession of the 
 estate.'^ But, as a general rule, the act of taking possession is an 
 implied agreement to pay interest,' and "it must be a strong case 
 and clearly made out " that relieves the purchaser from that obliga- 
 
 > Phillipson v. Gibbon, L. R., 6 Oh. 434 
 
 2 Scott V. Thorp, 4 Edw. Ch. (N, Y.) 1. 
 
 = 2 Sugd. Vend. (8th Am. ed.) 314 (637); 1 Warvelle Vend. 188. 
 
 * Oliver v. Hallam, 1 Grat. (Va.) 298. " If this rule be not universal, the party 
 who claims an exemption from its operation must bring himself within some 
 established exception." Brockenbrough v. Blyth, 3 Leigh (Va.), 619, 647. A 
 purchaser must pay interest on a sum reserved in his hands as an indemnity 
 against an alleged claim of dower, he having had possession of the land, and the 
 right to dower not having been asserted within the statutory period of limitation. 
 Boyle V. Eowand, 3 Des. (S. 0.) 553. 
 
 5 2 Sugd. Vend. (8th Am. ed.) 318 (630), citing Forteblow v. Shirley, 3 Swan 
 228; Carrodus v. Sharp, 20 Beav. 56. Luckett v. Williamson, 37 Mo. 388, 895, 
 obiter. 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 pur- 
 chase money. Sohier v. Williams, 2 Curt. (0. 0.) 195, 199. But see Kester v. 
 Rockel, 2 Watts & 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 hia 
 hands, would not excuse him from the payment of interest, he being in posses- 
 sion of the estate. This was a case in which the contract had been executed by 
 a conveyance See, also, Breckenridge v. Hoke, 4 Bibb (Ky.), 272. 
 
 « Rutledge v. Smith, 1 McCord Ch. (S. C.) 402. 
 
 ' Pludyer v. Cocker, 13 Ves. 35. 
 
OF THE EIGHT OF THE VENDOE TO PEEFECT THE TITLE. 767 
 
 tion, where he has received the rents and proiits.' It has been said, 
 however, by the most eminent authority that it cannot be laid down 
 as an absohite rule that a purchaser by private contract shall pay 
 interest from the time of taking possession.^ 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 expecta- 
 tion of a perfected title, he will be relieved from the payment of 
 interest, even though in possession,^ provided the vendor were noti- 
 fied that the purchase money was lying dead.* In such a case the 
 
 ' Powell T. Matyr, 8 Ves. 146. 
 
 " 3 Sugd. Vend. (8th Am. ed.) 317 (629). Comer v. Walker, Rey. lib. A, 1784, 
 fol. 625, where the purchaser had been in possession twenty -two years. He was 
 required to pay only a low rate of interest, such as he might have realized from 
 securities readily convertible into money. Where the purchaser has been 
 harassed or disturbed in the possession, where there has been willful and vexa- 
 tious 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 2 Sugd. Vend. (8th Am. ed.) 315 (628). Jenkins v. Pahey, 73 N. T. 355, 
 obiter. Osborne v. Bremer, 1 Des. (8. C.) 486. Hunter v. Bales, 34 Ind. 303. 
 The presumption is that the money is unproductive in the vendee's hands, and 
 he is not chargeable with interest, unless he used it, which use it devolves on the 
 vendor to prove. Hunter v. Bales, 24 Ind. 394, 304. Bass v. Gilliland, 5 Ala. 
 761. A purchaser who is prevented from improving the land by a suit against 
 his vendor for recovery of the land, cannot be required to pay interest pending 
 the suit, though it was agreed that improvements should be at the risk of the 
 purchaser if the title should be attacked. Wightman v. Reside, 3 Des. (S. C.) 
 578. A purchaser from one holding under color of title only, must pay Interest 
 only from the time his vendor's title was perfected by adverse possession. 
 Baskin v. Houser, 3 Pa. St. 430. 
 
 * Powell V. Matyr, 8 Ves. 146, where it was said by the master of the rolls 
 after laying down the general rule that the purchaser must pay interest from the 
 time of the contract: " It does not follow that the mere circumstance that the 
 vendor wns not ready to complete the title at the day will vary the rule. The 
 purchaser must state something more than mere delay, viz., that he has not had 
 the benefit of his money, and I think it reasonable to add the other term that has 
 been mentioned, that in some way it shall be intimated to the vendor that the 
 purchaser has placed himself in that situation, his money unproductive and to 
 wait the event, otherwise there is no equality. The one knows that 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." 
 
768 MARKETABLE TITLE TO EEAL ESTATE. 
 
 purchaser takes tlie rents and profits in satisfaction of the interest 
 he might have realized from the investment of his money. To 
 charge him v^ith 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.' In accordance with the foregoing prin- 
 ciples, it has been held that if the vendor be unable to convey a 
 good title when demanded by the purchaser on payment of the pur- 
 chase money, and the latter be afterwards required to take a per- 
 fected title, the vendor must pay to him interest on the purchase 
 money received.^ But this principle has, of course, no application 
 to cases in which the payment of the purchase money and the exe- 
 cution 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 purchaser be 
 obliged to keep the money idle awaiting the tender of a perfected 
 title.' 
 
 See, also, Ruttledge v. Smith, 1 McCord Ch. (S. 0.) 403. Brockenbrough v. 
 Blythe, 3 Leigh (Va.), 619. 
 
 1 1 Sugd. Vend. (8th Am. ed.) 13 (8). Dowson v. Solomon, 1 Drew. & S. 1 
 Aukeny v. Clark, 148 U. S. 345. Bangs v. Barrett, (R. I.) 18 Atl. Rep. 350. 
 
 " Pierce v, Nichols, 1 Paige (N. Y.), 244. 
 
 s Hunter v. Bales, 24 Ind. 303. 
 
CHAPTER XXXIII. 
 
 OP THE RIGHT OP THE VENDOR TO REQUIRE THE PURCHASER TO 
 TAKE THE TITLE WITH COMPENSATION POR DEPECTS. 
 
 GENERAL RULE. § 325. 
 
 EXCEPTIONS. § 336. 
 
 INDEMNITY AGAINST FUTURE LOSS. § 327. 
 
 § 325. GENERAL RULE. The vendor, under some circumstances, 
 may require the purchaser to take the property, witli compensation 
 for failure of the title as to a portion of the premises not material 
 to the due enjoyment of the remainder, or with compensation for 
 inconsiderable liens, charges or incumbrances.-' This rule has been 
 carried so far that a fraudulent misrepresentation as to the title of 
 
 ' 1 Sugd. Vend. (8th Am. ed.) 572 (813); Adams Eq. 210; Bisph. Eq. (8d ed.) 
 445; Fry Sp. Perf. (3d Am. ed.) § 1178, et seq.; 2 Kent Com. (11th ed.) 475; 1 
 Story Eq. § 779. Hepburn v, Auld, 5 Cranch (U. S.), 363; Pratt v. Campbell, 9 
 Crauch (U. S.), 494. Cheesman v. Thorn, 1 Edw. Ch. (N. Y.) 629; 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. 683; 
 Creigh v. Boggs, 19 W. Va. 240. The following instances in which specific per- 
 formance 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. 134. 
 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. 
 162. 
 
 97 
 
770 MARKETABLE TITLE TO EEAL ESTATE. 
 
 a small portion of the land, not constituting a principal inducement 
 to the purchaser, and not indispensable to the intended purposes of 
 the whole, has been held no ground for rescinding the contract.^ 
 This rule has also been apphed 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 entitled to compensation 
 for the deficiency, but not to a rescission of the contract, the eighty- 
 acres not being indispensable to the due enjoyment of the rest, and 
 not having formed a special inducement to the purchaser.^ 
 
 A condition of sale that if any mistake or omission should be dis- 
 covered 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.* 
 
 " If that part to which the seller has a title was the purchaser's 
 principal object, or equally his object with tiie part to which a title 
 cannot be made, and is itself an independent subject and not likely 
 to be injured by the other part, equity will compel the purchaser to 
 take it at a proportionate price," and an inquiry will be directed as 
 to whether the part to which a title cannot be made is material to 
 the possession and enjoyment of the rest of the estate.'' Where the 
 purchaser entered into the contract with knowledge that there was 
 a trifling incumbrance on the property, namely, a reservation of a 
 yearly rental of one pound of wheat, specific performance by the 
 purchaser was decreed without compensation.' 
 
 As a general rule, an acknowledged and undisputed charge or 
 incumbrance of a pecuniary nature upon the premises is no valid 
 objection to specific performance, since the purchase money may be 
 applied to the discharge of the incumbrance, either under the direc- 
 tion of the court or by the purchaser himself, who thereupon is sub- 
 rogated to the right of the incumbrancer.* But specific perform- 
 
 • Coffee V. Newsom, 2 Ga. 443. But see, post, this chapter, exception 6, p. 776. 
 'Key v. Jennings, 66 Mo. 356. 
 
 • 1 Sugd. Vend. 478. 
 
 n Sugd. Vend. (8th Am. ed.) 477. 
 
 'Winne v. Reynolds, 6 Paige (N. Y.), 407. 
 
 'Ante, pp. 566, 729. 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 pur- 
 chase money. Cogswell v. Boehm, 5 N. Y. Supp. 67. 
 
EIGHT OF VENDOE TO EEQUIEE PUECHASEE TO TAKE TITLE. 771 
 
 ance by the purchaser cannot be compelled if the incumbrance 
 exceed the unpaid purchase money/ 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 
 sliould 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.^ 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 condemned.^ 
 A partial restriction upon the purchaser's power of alienation, such 
 as a pre-emption right of purchase in the original owner for a 
 speciiied time, or a fine in case of alienation, does not justify the 
 purchaser in refusing specific performance, but diminishes the value 
 of the property, and entitles him to a compensation.^ If the pur- 
 chaser has waived his right to rescind the contract where the title 
 is defective, he caimot refuse to pay the purchase money, with com- 
 pensation or abatement as to that portion of the premises to which 
 the vendor has no title.^ lie will be deemed to have waived that 
 right if he purchased with knowledge that the title to a portion of 
 the premises was defective.^ 
 
 In the English practice the conditions of sale usually provide that 
 any misdescription, mistake or error in the particulars, shall not 
 avoid the sale, but shall be the subject of compensation ; and the 
 conditions usually iix the mode in which the amount of compensa- 
 tion shall be determined. A condition that no compensation shall 
 be allowed the purchaser for defects, applies only to trivial errors.' 
 
 ' Hinckley v. Smith, 51 N. Y. 31. 
 'Harris v. Granger, 4 B. Mon. (Ky.) 369. 
 ^Kuhn V. Freeman, 15 Kans. 423. 
 ^Winne v. Reynolds, 6 Paige (N. Y.), 407. 
 « Hancock v. Bramlett, 85 N. 0. 393. 
 «Kimmel v. Scott, (Neb.) 53 N. W. Rep. 371. 
 
 'Dart Vend. & P. (5th ed.) 134 Whitemore v. Whitemore, L. R., 8 Bq. 603. 
 The cases in which the common condition of sale requiring the purchaser to take 
 
772 MAEKETABLE TITLE TO REAL ESTATE. 
 
 We have seen tliat when a purchaser elects to complete the con- 
 tract with compensation for a part to wliich title cannot be obtained, 
 compensation is to be decreed according to the relative and not the 
 average value of tlie part lost.^ ISTo 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 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 pur- 
 chaser 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 objec- 
 tion go to the whole title, he can in no case be required to accept the 
 property witliindemnity against eviction.^ (2) The contract cannot be 
 specifically enforced in part and rescinded in part. It must either be 
 rescinded in whole, or specific performance decreed with compensa- 
 
 the property with compensation for defects do not apply have been thus classi- 
 fied by Mr. Dart (V. & P. [5th ed.] 138); 1. Where the property is not of the 
 same descriptiou 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 existence, or cannot be found; 
 or where no title can be shown to it. 4. Where the misdescription is upon a 
 point material to the due enjoyment of the property. 5. Where the misdescrip- 
 tion as to quantity is so serious that it is no longer a, fit subject for compensa- 
 tion. 6. Where the misdescription is of such a nature that the amount of the 
 compensation cannot be estimated. 
 
 1 Ante, § 170. 
 
 = Stockton V. Union Oil Co., 4 W. Va. 73. 
 
 3 1 Sugd. Vend. (8th Am, ed.) 417 (314). Shaw v. Vincent, 64 N. C. 690. 
 
 * 1 Sugd. Vend. (8th Am. ed.) 578. Balmanno v. Lumley, 1 Ves. & Bea. 324; 
 Paton V. Brebner, 1 Bligh, 42; Nouaille v. Flight, 7 Beav. 521; Blake v. Phinn, 
 3 C. B. 976. 
 
EIGHT OF VENDOE TO EEQUIEE PTJECHASEE TO TAKE TITLE. 773 
 
 tion for an inconsiderable part to which the title fails.' This excep- 
 tion does not apply where the purchase is of several lots at auction, 
 and the titles to some are bad.^ The purchaser must take a con- 
 veyance 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.' If a 
 person purchases at an auction several distinct though adjacent 
 parcels of land, separately described in the advertisement of sale 
 and separately sold, signing a separate memorandum of the purchase 
 of each which contains the terms of the sale, the purchase of each 
 parcel constitutes a distinct contract, and the inability of the vendor 
 to make title or perform the contract 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.* (3) The pur- 
 chaser cannot be required to complete the contract with compensation 
 or abatement of the purchase money if the title has failed to a con- 
 
 ' Bailey v. James, 11 Qrat. (Va.) 468; 63 Am. Dec. 659. Jopling v. Dooley, 1 
 Yerg. (Tenn.) 389; 34 Am. Deo. 450; Reed v. Noe, 9 Yerg. (Tenn.) 383; Galloway 
 V. Bradshaw, 5 Sneed (Tenn.), 70. MoKinney v. Watts, 3 A. K. Marsh. (Ky.) 
 268. Bryan v. Bead, 1 Dev. & B. Eq. (N. C.) 78. Wilson v. Brumfleld, 8 Bl. 
 (Ind.) 146; Johnson v. Houghton, 19 Ind. 359. Rector v. Price, 1 Mo. 378. 
 Christian v. Stanley, 33 Ga. 36. Yoke v. Gregg, 9 Tex. 85. Ankeny v. Clark, 
 138 U. 8. 345. 
 
 « Van Epps v. Schenectady, 13 Johns. (N. Y.) 436. Poole v. Shergold, 3 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 pur- 
 chased 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 pur- 
 chaser was compelled to complete the contract. If two distinct portions of land 
 are sold as one tract, a good title to both must be shown in order to sustain aa 
 action against the purchaser for refusing to complete the contract. Barton v. 
 Bouvien, 1 Phila. (Pa.) 533. 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. 
 346. 
 
 = 1 Sugd. Vend. (8th Am. ed.) 484. Emerson v. Hiles, 8 Taunt. 88; James v. 
 Shore, 1 Star. 436; Baldry v. Parker, 3 B. & C. 37; Roots v. Dormer, 4 B. & 
 Ad. 77; Seaton v. Booth, 4 Ad. & El. 528. 
 
 "Wells V. Day, 134 Mass. 88. 
 
774 MARKETABLE TITLE TO EEAL ESTATE. 
 
 siderable portion of tlie property,^ or to a part which is indispeusable 
 to the due enjoyment and intended purposes of the residue.^ But a 
 failure of title to an inconsiderable or dispensable portion of the 
 property,^ or the existence of a trifling charge or incumbrance upon 
 the premises,* 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 com- 
 
 ' 1 Sugd. Vend. (8th Am. ed.) 479; Fry Sp. Perf. (3d Am. ed.) § 1183; 2 Kent 
 Com. 475. Boyce v. Grundy, 3 Pet. (U. S.) 210. Hayes v. Skidmore, 27 Ohio 
 St. 331. Newman v. Maclin, 5 Hayw. (Tenn.) 241; Reed v. Noe, 9 Yerg. (Tenn.) 
 282, where the title to twenty-five acres out of fifty was defective. Cunningham 
 V. Sharp, 11 Humph. (Tenn.) 116. Terrell v. Farrar, 1 Miss. 417, where title to 
 only half of the property purchased could be had. In Morgan v. 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. 
 
 * Authorities cited supra. 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 excep- 
 tion 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 9 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 accep: the residue with com- 
 pensation. 1 Sugden Vend. 478. Perkins v. Ede, 16 Boav. 193. 
 
 'Tomlinson v. Savage, 6 Ired. Eq. (N. C.) 430, where a deficiency of 171 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. 
 
 "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 prop- 
 erty of $1,000. Specific performance by the vendor, with compensation or 
 allowance for the incumbrance, was decreed. A deficiency of 21 acres of land 
 in a tract of 400 acres, not material to the enjoyment of the rest, may be compen- 
 sated, 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 maintenance of a division 
 fence, being the subject of compensation, is no ground for resisting specific per- 
 formance. Keating v. Gunther, 10 N. Y. Supp. (N. Y.) 734. 
 
EIGHT OF VENDOE TO EEQUIEE PUECHASEE TO TAKE TITLE. 775 
 
 pensation to be allowed,' 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.^ 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 performing the contract.'' On 
 the other hand, a deficiency of fourteen inches in a frontage of 
 seventy-five feet was held a case for compensation and not for 
 rescission, the fourteen inches not being indispensable to the due 
 enjoyment and intended use of the premises.* Obviously, the ques- 
 tion whether the purchaser must take the title with compensation, 
 or may rescind the contract, depends upon the circumstances of 
 each particular case. Specific performance is a matter of grace, 
 and will neither be enforced in one case nor denied in another 
 unless equity and good conscience so requires. It is incumbent 
 upon the purchaser to show that the jjart to which title has failed 
 was material to the proper use and enjoyment of the rest, or formed 
 a special inducement to the purchase.^ (4) The purchaser cannot 
 be compelled to accept an estate of a different tenure from that 
 which he purchased ; thus, if he purchases a freehold, he cannot be 
 
 ' In Evans v. Kingsbeny, 3 Rand. (Va.) 130; 14 Am. Dec. 779, a husband sold 
 an estate in which the wife had a life interest in case she survived liim, 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 husband, 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, p. 473. 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 remarriage. Scheu v. Lehning, 31 Hun 
 (N. Y.), 183. 
 
 'Adams v. Valentine, 38 Fed. Rep. 1 (N. Y.). 
 
 'SmitUers v. Steiner, 84 N. Y. Supp. 678. See, also, the following encroach- 
 ment cases, in which the purchaser was excused: McPherson v. Schade, 38 N. Y. 
 Supp. 659; 8 Misc. Rep. 434, one and one-half inches; Smith v. McCool, 23 Hun 
 (N. Y.), 59.5, five inches; Arnstein v. Burroughs, 37 N. Y. Supp. 958, two inches; 
 Bowie V. Brahe, 4 Duer (N- Y.), 676, one and seven-eighths inches. See, also, 
 King V. Knapp, 59 N. Y. 463; Stokes v. Johnson, 57 N. Y. 673; Webster v. 
 Trust Co., 145 N. Y. 275; 39 N. E. Rep. 964. 
 
 ^ Kelly V. Brower, 7 N. Y. Supp. 753. 
 
 » Keating v. Price, 58 Md. 532. 
 
776 MARKETABLE TITLE TO REAL ESTATE. 
 
 compelled to accept a lesser estate as a copyliold or a leasehold.' 
 (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.^ In some 
 cases, however, the purchaser has been compelled to take a different 
 interest from that which the vendor undertook to sell.'' If the pur- 
 chase 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." (6) The purchaser can- 
 not be required to take the title with compensation for defects in a 
 case where the vendor has been guilty of fraud in the sale.' (7) If 
 the vendor turns the purchaser out of possession, he thereby rescinds 
 the contract and cannot afterwards require a specific performance 
 with compensation for defects.^ 
 
 § 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.'' An apparent exception to the 
 
 • 1 Sugd. Vend. (8th Am. ed.) 461. 
 
 = 1 Sugd. Vend. (8th Am. ed.) 480 (316). 
 
 8 Id. 457(299). 
 
 *1 Sugd. Vend. (8th Am. ed.) 480; 1 Story Eq. Jur. § 778. Atty.-Geu. y. Day, 
 1 Ves. 218. 
 
 'Fry Sp. Perf. (3d Am. ed.) § 1192. Harris v. Granger, 4 E. Mon. (Ky.) 869. 
 But see Coffee v. Newsom, 2 Ga. 442, a case apparently at variance with the fore- 
 going authorities. 
 
 n Sugd. Vend. (8th Am. ed.) 523; Fry Sp. Perf. (3d Am. ed.) g 1193. Knatch- 
 bull V. Grueber, 1 Ves. Jr. 324. 
 
 ■" 1 Sudg. Vend. (8th Am. ed.) 467, 475; Fi-y Sp. Perf. (3d Am. ed.) g§ 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, 66; Ridg- 
 way V. Gray, 1 Mao. & G. 103; Powell v. So. Wales R. Co., 1 Jur. (N. S.) 773. 
 Bryan v. Read, 1 Dev. & Bat. Eq. (N. C.) 78, 86. Barickman v. Kuykendall, 6 
 Bl. (Ind.) 31, where the guardian of a minor, one of several heirs selling an estate, 
 offered the purchaser a bond with security, conditioned that the minor should 
 convey when he came of age. In Rife v. Lybarger, 49 Ohio St. 422; 31 X. E. 
 Rep. 768, in a decree for specific performance against a purchaser, provision was 
 made for his indemnity against an old, uncanceled mortgage. This is an inter- 
 esting case. The purchaser bought during the fever and excitement of a 
 " boom " in city property, but finding a mortgage on the premises refused to com- 
 plete the purchase. The "boom" subsided, and within four weeks after the 
 contract should have been complete. 1 the value of the property shrank nearly 
 
* EIGHT OF VENDOR TO EEQUIEB PUECHASBE TO TAKE TITLE. 777 
 
 rule that lie 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 
 ot dower in tlie premises.' But it is believed that there is no well- 
 considered case in which the purchaser has been forced to take a 
 defective title with indemnity against possible loss from the defect. 
 Hence, it has been frequently held that a purchaser cannot be com- 
 pelled to accept title with indemnity against an inchoate right of 
 dower in the premises.^ Of course, if the contract provide for 
 indemnity it may be required.' 
 
 one-half. Keleases from the personal representatives and heirs of the mortgagee 
 were procured and filed by the vendor, but the purchaser still objected to the 
 title on the ground that the right to enforce the mortgage might be outstanding 
 in aQ assignee. Specific performance by him was decreed, with indemnity 
 against this possibility. The case seems at variance with the general rule estab- 
 lished by the authorities above. In Simpson v. Hawkins, 1 Dana (Ky.), 303, a 
 case in which the contract had been execiited by a conveyance with covenants 
 for title, it was held that the grantor might be required to provide p.n indemnity 
 against the possible reopening of a decree against a non-resident adverse 
 claimant. 
 
 ' Ante, p. 472. Young v. Paul, 10 N. J. Eq. 415; 64 Am. Dec. 456. In Jack- 
 son V. Edwards, 7 Paige Oh. (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 purchaser is compelled to take the title 
 with an abatement of the purchase money, and not a mere indemnity. 
 
 ' Peters v. Delaplaine, 49 N. Y. 362. 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. & Cr. 105; Ridgway v. Gray, 1 Mac. & G. 109; 
 MilUgan V. Cooke, 16 Ves. 1; Walker v. Barnes, 3 Mad. 247 (132); Paterson v. 
 Long, 6 Beav. 598; Ross v. Boards, 8 Ad. & El. 290. 
 
 98 
 
CHAPTER XXXIY. 
 
 OF THE REMEDY BY INJUNCTION AGAINST THE COLLECTION OP 
 THE PURCHASE MONEY. 
 
 GENERAL OBSERVATIONS. § 338. 
 FRAUD ON THE PART OF THE GRANTOR. § 339. 
 WANT OF OPPORTUNITY TO DEFEND AT LAW. § 880 
 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. § 885. 
 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.' So far as the cove- 
 nants of warranty, or for quiet enjoyment are concerned, there can 
 be no doubt of the adequacy of the remedy at law as soon as a right 
 of action upon them occurs. In contemplation of law no wrong 
 arises ouj; of a mere failure of the title without an eviction or dis- 
 turbance of the possession where these are the only covenants 
 taken ; consequently there being no wrong there is no remedy. 
 After a breach of these covenants has occurred, the remedy is 
 ample and complete. But with respect to the covenants of seisin 
 
 ' As to the remedy by injunction, where the contract is executory, see 
 ante, p. 574. 
 
REMEDY BY INJUNCTION AGAINST COLLECTION OF PUECHASE MONEY. 77d 
 
 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 incumbered, 
 unless he has been evicted in the one case or has discharged the 
 incumbrance in the other, he has, according to the rule generally 
 prevailing in the United States, no right to recover substantial 
 damages for the breach, and, consequently, nothing to offer in 
 defense of his action for the purchase money. In that respect,, 
 therefore, the remedy at law upon those covenants, while existing, 
 would seem inadequate ;^ 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 f and, 
 in others, upon a complete and undoubted failure of the title and 
 insolvenc}' of the vendor, has been held entitled to a perpetual 
 
 ' There are dicUi 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 inade- 
 quate because there can be no recovery of damages until an eviction occurs. 
 Ingram v. Morgan, 4 Humph. (Tenn.) 66; 40 Am. Dec. 626; Baird v. Goodrich, 
 5 Heisk. (Tenn.) 20; Leird v. Abernethy, 10 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 Govts, 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 possibihty 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, so far as. 
 they relate to the covenant of seisin, appear to be in accord with the opinion of 
 Mr. Rawle (Govts, for Title [5th ed.], § 378). 
 
 •> Post, § 333. 
 
780 MARKETABLE TITLE TO EEAL ESTATE. 
 
 injunction, upon condition tliat he reconvey the premises to the 
 grantor.' 
 
 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 respect- 
 ing 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 claim- 
 ant or incumbrancer, and the covenantor is either insolvent or a 
 non-resident. 
 
 •i. Where there is no present right to recover substantial damages 
 on the covenants, but there is a clear outstanding title in a stranger. 
 
 § 329. PBiAUD ON THE PART OF THE GRANTOR. 1. Whet'e 
 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 col- 
 lection of the purchase money, whether there has or has not been a 
 a breach of the covenants for title.^ Indeed, where there is such 
 fraud an injunction will be granted, though there are no covenants 
 for title.'' The same rule applies in a case of mistake as to the 
 premises sold and conveyed.'' And inasmuch as a court of equity is 
 
 ' Jackson v. Norton, 6 Cal. 187; 5 Cal. 263. This is tlie rule in Virginia, 
 except tliat no reconveyance of tlie premises is required and no importance seems 
 to liave been given to tlie solvency of the covenantor as respects the right to the 
 injunction. Post, § 337. 
 
 ■•'High on Injunctions (Bd ed.), 289; Rawle Govts. (5th ed.) § 372. Fitch v 
 Polke, 7 Bl. (Ind.) 565; Reed v. Tioga Mfg. Co., 66 lud. 21. 
 
 ' In Houston v. Hurley, 2 Del. Cli. 248, the purchaser, through the fraudulent 
 representations of the vendor, had accepted a conveyance without covenants for 
 title, and was permitted to enjoin proceedings to collect the purchase money, until 
 the vendor should perfect the title. 
 
 * Spm-r V. Benedict, 99 Mass. 463, where the conveyance (quit claim) did not 
 include lands which were pointed out to the buyer as belonging to the vendor, 
 but to which he had no title, and which were not included in the conveyance. 
 
EEMEDY BY INJUNCTION AGAINST COLLECTION OF PUECHASE MONEY. 78t 
 
 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 covenantee at law, as a defense, 
 to an action for the purchase money. It has been held, however, 
 that fraud is no ground for an injunction 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.' 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 gen- 
 erally 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.' 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 injimction against the judgment so obtained.^ 
 
 § 330. WANT or OPPORTUNITY TO DEFEND AT LAW. 
 2. Where there is a present right to recover substantial damages: 
 for hreaoh of the covenants for title, and there has been no ojyjyor^ 
 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, counterclaim or 
 
 ' Barkhamstead v. Case, 5 Conn. 528; 13 A.m. Dec. 93; Moore v. Ellsworth, a 
 Conn. 403. 
 
 ' Ransom v. Shuler, 8 Ired. Eq. (IST. 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 purchase money, and leava 
 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 pur- 
 chase money (because to that extent the consideration has failed) as a security ia 
 his own hands against the loss impending over him." Compare &'cfem in Ham~ 
 ■matt V. Emerson, 37 Me. 309. 
 
 » Johnson v. Jones, 13 8m, & M. (Miss.) 580; Thomas v. Phillips, 4 Sm, & M. 
 (Miss.) 358. Cf. Allen v. Hopson, 1 Preem. Ch. (Miss.) 376. 
 
782 MARKETABLE TITLE TO EEAL ESTATE. 
 
 set-o£E, there is no ground for the interposition of equity, and the 
 injunction should be denied.^ So, also, if the application be made 
 after judgment, and the facts presented would have been a com- 
 plete defense at law.^ 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 purchase money, 
 without legal proceedings, then, and in all such cases, the covenantee 
 may be enjoined from any further proceeding, either to collect his 
 judgment or to enforce such security.' So, also, where at the time 
 of the judgment the covenantee was ignorant of the facts which 
 
 1 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 terminating in 
 1843. 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 v. 
 Wheless, 33 Miss. 647. The contract was executory in this case, but the principle 
 remains the same, Eicker v. Pratt, 48 Ind. 73. Allen v. Thornton, 51 Ga. 594; 
 Desvergers v. Willis, 58 Ga. 388; 21 Am. Rep. 289. Kibler v. Cureton, 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 at anj' time he awarded an 
 injunction to stay the collection of the purchase money. This is true if the evic- 
 tion occurred after judgment, and that, too, whether the vendor was or was not 
 insolvent. If, however, the eviction occurred before judgment, and the cove- 
 nantee might have set up that defense by way of recoupment 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 insol- 
 vency of the covenantor seems immaterial to the question of the right to an 
 injunction to stay the collection of the purchase money, except in those cases in 
 which no present right of action on the covenant of warranty exists, and the 
 complainant is invoking the " quia timet " jurisdiction of equity. If the cove- 
 nantee 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 cove- 
 nantor or his estate is insolvent and the defense of failure of title could not have 
 been made in the action for the purchase money. Wray v. Furniss, 27 Ala. 471. 
 
 2 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. 
 
EEMEDT BY INJUNCTION AGAINST COLLECTION" OF PURCHASE MONEY. 783 
 
 would have constituted a defense to the action.* It may be 
 observed generally, however, that an injunction to stay the collec- 
 tion of the purchase money, whether before or after judgment, will 
 not be granted unless the complainant shows that for some reason 
 his legal remedy on the covenants for title will be unavailing.^ 
 
 § 331. INSOLVENCY OB, NON-RESIDENCE OF THE GRANTOR. 
 3. Where there has ieen no sitch 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 claim- 
 ant 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 con- 
 templation 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.^ But the covenantor being insolvent or a non- 
 resident, judgment for the covenantee will be worthless when the 
 right of action at law shall have accrued. Hence arises the juris- 
 diction in equity for a bill of injunction "quia timet," that is, 
 " because he fears some future probable injury to his rights or inter- 
 ests, and not because an injury has already occurred which requires 
 any compensation or other relief." * Accordingly, in many cases, 
 injunctions against proceedings to collect the purchase money have 
 been granted upon allegations of the actual pendency" or threat- 
 
 ' 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 remaitjed 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. 233. Simpson v. Hart, 1 Johns. Oh. 
 (N. Y.) 98. 
 
 ' Haggin v. Oliver, 5 J. J. M. (Ky.) 337. 
 
 8 Ante, p. 341. 
 
 * 2 Story Eq. (13th ed.) § 826. 
 
 » High on Injunctions (3d ed.), § 400; Rawle Govts. (5th ed.) §§ 373, 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 
 
784 MARKETABLE TITLE TO REAL ESTATE. 
 
 ened prosecution ' of a suit by an adverse claimant against the 
 covenantee, and that the covenantor, because of insolvency^ or 
 non-residence,^ cannot be compelled to respond in damages for 
 
 covenantor was a non-resident or insolvent, nor that for any other reason, the 
 complainant's remedy upon the covenants, when it should accrue, would be 
 insufficient for his protection. There are many cases which decide that an 
 injunction against proceedings to collect the purchase money will not be granted 
 where the covenantee has not been disturbed in his possession by an adverse 
 claimant, but few which refuse the injunction where it was shown that the 
 covenantor was a. non-resident or insolvent, and that suit by the adverse claim- 
 ant was being prosecuted or threatened. Legett v. McCarty, 3 Edw. Ch, (N. 
 Y.) 136, outer; Edwards v. Bodine, 26 Wend, (N. Y.) 114, obiter. Shannon v. 
 Marselis, Saxt. (N. J.) 413, 435; 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.) 437; Jaques v. 
 Esler, 3 Gr. Ch. (N. J.) 463; Hile v. Davison, 5 C. E. Gr. (N. J.) 338. Pehrle v. 
 Turner, 77 Ind. 530, overruling Strong v. Downing, 34 Ind. 800. 
 
 ' Harding v. Commercial Loan Co., 84 111. 251, 260, obiter. 
 
 'Warvelle on Vendors, 937; Rawle Govts. (5th ed.) § 380. Walton v. Bon- 
 ham, 34 Ala. 518; Wray v. Furniss, 37 Ala. 471. In Magee v. McMillan, 30 Ala. 
 430, relief was denied on the ground that insolvency of the vendor was not 
 alleged. Heflin v. PhilUps, (Ala.) 11 So. Rep. 739; Frank v. Riggs, 93 Ala. 353; 
 9 So. Rep. 359. Hoppes v. Cheek, 31 Ark. 585; Busby v. Treadwell, 34 Ark. 458; 
 Brooks V. Moody, 25 Ark. 453. Young v. McCormick, C Fla. 368. Allen v. 
 Thornton, 51 Ga. 594. Fehrle v. Turner, 77 Ind. 530; Wimberg v. Schwegeman, 
 97 Ind. 580, 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, 5B. Mon. (Ky.) 540; Taylor v. Lyons, 3 Dana (Ky.), 276; Rawlins v. 
 Timberlake, 6 T. B. 3Ion. (Ky.) 235; Simpson v. Hawkins, 3 Dana (Ky.), 303. 
 It was held that insolvency was no ground for the injunction unless the cove- 
 nantee filed his bill quia tiviet, requiring all persons having adverse interests to 
 assert or relinquish the same. Jones v. Waggoner, 7 J. J. Marsh. (Ky.) 144; 
 Hatcher v. Andrews, 5 Bush (Ky.), 663. Johnson v. Wilson, 77 Mo. 689. 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. McJIullen, 59 Mo. 
 253. Miller v. Avery, 3 Barb. Ch. (N. Y.) 583; Woodruff v. Bunce, 9 Paige 
 (N. Y. ) Ch. 443; 38 Am. Dec. 559. See comments on this case, ante, p. 
 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.) 34; Merriman v. Norman, 9 Heisk. (Tenn.) 270; Leird v. Aber- 
 
 8 Clarke v. Cleghorn, 6 Ga. 225; JIoGhee v. Jones, 10 Ga. 127. In this case 
 there had been no conveyance, but tlie vendor had executed a bond for title. 
 
REMEDY BY INJUNCTION AGAINST COLLECTION OF PUECHA8E MONEY. 785 
 
 a breach of his covenant wlien it shall have occurred. It has 
 been held, however, that the insolvency of the covenantor must 
 be alleged in the bill as gronnd for the injunction.' Upon a 
 
 nethy, 10 Heisk. (Tenn.) 620; Saint v. Taylor, 12 Heisk. (Tenn.) 488; Land Com- 
 pany V. Hill, 3 Pick. (Tenn.) 589; 11 S. W. Rep. 797. Stockton v. Cook, 3 Muuf. 
 (Va.) 68; 5 Am. Dec. HOi. The Virginia practice is, however, much more favor- 
 able to the covenantee than the rule stated in the text. See post, § 337. In 
 Patton V. Taylor, 7 How. (U. S.) 133, 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 possession, 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, as follows: "It is too late now in this 
 court to question the doctrine, that where a vendee has received a conveyance 
 with warranty, and been let into possession, he may nevertheless enjoin the col- 
 lection of the purchase money, when the vendor becomes insolvent, and it turns 
 out that he has no title, or that his title is defective. That doctrine has been 
 
 Vance v. Hense, 5 B. Mon. (Ky.) 540; Wiley v. Fitzpatriek, 3 J. J. Marsh. (Ky.) 
 588; Hatcher v, Andrews, 5 Bush (Ky.), 561. In Cummins v. Boyle, 1 ,1. J. 
 Marsh. (Ky.) 480, it was held that the removal of one of several covenantors 
 from the State was no ground for an injunction unless it should appear that the 
 remedy against the others would be unavailing. Wofford v. Ashcraft, 47 Miss. 
 641. Green v. Campbell, 2 Jones Eq. (N. C.) 447. The covenantee will not be 
 driven to seek redress in the courts of another State, when a less circuitous and a 
 better remedy can be given in the courts of his own State. Richardson v. "Wil- 
 liams, 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 covenantee 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 
 Palls V. Dickey, 6 Jones Eq. (N. C.) 2.58, the bill was adjudged fatally defective 
 in not averring that the non-resident had no property within the State. It must 
 be admitted that the ownership of property within the State constitutes a very 
 doubtful security for damages, the right to recover which may not accrue for 
 many years after the payment of the purchase money has been enforced, or not 
 until the vendor has disposed of that property. In 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. 
 613. 
 
 ' 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 pur- 
 chase money without alleging non-residence, fraud or insolvency on the part of 
 the grantor. Baird v. Laevison, (Ky.) 15 S. W. Rep. 252. 
 99 
 
786 MARKETABLE TITLE TO EEAL ESTATE. 
 
 principle similar to that on which a court of equity enjoins the 
 collection of the purchase money by an insolvent covenantor 
 when the title has failed, it will in a like case restrain him from 
 transferring negotiable securities for the purchase money to an inno- 
 cent party.' It seems that if the title to a portion of the land fail, 
 and that portion be not material or essential to the enjoyment 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 compensation for the portion lost.' 
 
 incidentally and directly recognized in too many cases to be now shaken, even if it 
 were originally wrong. But it is right in itself, and clearly deducible from the 
 general principle that sustains every injunction quia timet. * * * It is said 
 (quoting from the opinion of Judge Underwood), '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 sub- 
 jects 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 untranspired 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 equiva- 
 lent or similar thereto; but an act of "preventive justice" on the part jf the 
 court, the full eeeotuation 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 the want or defect of title. As to the uncollected purchase money, it 
 places the purchaser in nearly the same attitude as if the conveyance had not 
 been executed. A perpetual injunction, or at least for so long as the purchaser 
 is in danger, is what his case requires, and all that it requires. But as it would 
 be unjust for him to withhold the purchase money and continue the enjoyment 
 •of the land, in which there is a chance he 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 thi-i 
 case were of opinion that mere insolvency of the grantor, when no suit ao-ainsc 
 the grantee was being prosecuted or threatened by the real owner, did not war- 
 rant a perpetual injunction to stay the collection of the purchase money. 
 
 ' McDunn v. .Des Moines, 34 Iowa, 467. 
 
 ' Simpson v. Hawkins, 1 Dana (Ky.), 303. 
 
 ' Key V. Jennings, 66 Mo. 356. In Withers v. Morell, 3 Edw. Ch. (N. Y.) 660, 
 it was held that in a proceeding to foreclose a purchase-money mortgage, the 
 
EBMEDY BY INJUNCTION AGAINST COLLECTION OF PUECHASE MONEY. 787 
 
 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.* It has also been said that mere 
 threats of suit by an adverse claimant will not justify an injunction, 
 and that it must appear that the suit is being actually prosecuted 
 before relief will be granted,^ except in cases where the adverse 
 claimants as well as tlie vendor and purchaser are before the court, 
 thereby making possible the adjustment of the rights of all parties 
 in the same suit.' 
 
 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 Sm. & M. Ch. (Miss.) 611. Simpson v. Hawkinsi 3 
 Dana (Ky.), 303. Woodruff v. Bunce, 9 Paige Ch. (N. Y.) 448; 38 Am. Dec. 
 559; Hoag v. Kathbun, Clarke Ch. (N. Y.) 18, where it was said that msolvency 
 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 insufficient. Boyer 
 V. Porter, 1 Overt, (Tenn.) 358; 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 complainant 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. Pitzpatrick, 3 J. J. Marsh. (Ky.) 583. In the last case it appears, however, 
 that the injunction was granted, the covenantor being practically insolvent and a 
 non-resident, though no suit was being prosecuted by the adverse claimant. 
 
 ' Id. (5th ed.) § 382. Morrison v. Beckwith, 4 T. B. Men. (Ky.) 78; 16 Am. Dec. 
 136; Davis v. Logan, 5 B. Mon. (Ky.) 341. Here the covenantee had been sued 
 in dower by the widow of the covenantor, and he had filed a cross-bill against 
 the heirs and executor of the covenantor asking compensation for breach of war- 
 ranty. 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 contrai^t was 
 executory, but specific performance by conveying to the purchaser 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. Lyon, 2 Dana (Ky.), 379. 
 
788 MAEKETABLE TITLE TO EEAL ESTATE. 
 
 If the application for injunction be made to restrain proceedings 
 at law before judgment, it is usually granted only upon condition 
 that the claimant shall confess judgment at law. The object of 
 this rule is to prevent suits for injunction having no other purpose 
 than to delay proceedings at law.' "Where the circumstances of the 
 case are such as to entitle the purchaser to an injunction against 
 proceedings to collect the purchase money, it may be maintained 
 against all who claim under the vendor as well as against the ven- 
 dor himself,^ 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 premises, 
 may enjoin the collection of the purchase money upon a complete 
 failure of the title, where the grantor is insolvent, is equitable 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 appeared that the objec- 
 tion to the title could probably be removed by the grantor. A per- 
 petual injunction against the collection of the purchase money 
 would be in substance a rescission of the contract, and it is a cardinal 
 doctrine of equity that a contract will not be rescinded without 
 returning to each party the consideration which passed from him to 
 the other. 
 
 § 332. Where the estate is incumbered. In many cases, 
 injunctions against proceedings to collect the purchase money have 
 been granted where an incumbrance on the premises exists, appar- 
 ently without regard to the imminency of proceedings to enforce 
 the incumbrance, or the non-residency or insolvency of the cove- 
 
 > Anon., 1 Vern. 120; 1 Madd. Cli. 132. Warwick v. Nowell, 1 Leigh (Va.), 96. 
 Nelson v. Owen, 3 Ired. Eq. (N. C.) 175, which was an inivinction against pro- 
 ceedings to collect a land hond, and where it was said that the granting of 
 injunctions was liable to much abuse, as they are usually obtained upon the 
 e.r parte statements of the applicant, and often employed to delay the administra- 
 tion 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 Qa. 380, where a judgment creditor of the vendor was 
 seeking to garnishee the purchase money. Fillingin v. Thornton, 49 Ga. 384. 
 
REMEDY BY INJUNCTION AGAINST COLLECTION OF PURCHASE MONEY. 789 
 
 nantor.^ As to actual or threatened proceedings against the cove- 
 nantee, there would seem to be grounds for a distinction between 
 defects of title and incumbrances. The former may never be 
 asserted, while the enforcement of securities for the payment of 
 money is almost inevitable. As to non-residence and insolvency of 
 the covenantor, even though the covenantee's case be not strength- 
 ened by these conditions, it would unquestionably be a great hard- 
 ship 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,^ 
 provided he has had no opportunity to set up that defense at law, 
 but he will be allowed only the amount actually paid by him to 
 remove the incumbrance. He cannot buy in incumbrances and set 
 up an adverse title under them against his vendor.' 
 
 But while an outstanding mortgage is ground for an injunction 
 against the collection of the purchase money where the purchaser 
 holds under a conveyance with a covenant against incumbrances, it 
 
 ' Buell V. Tate, 7 Bl. (Ind.) 55; Addleman v. Mormon, 7 Bl. (Ind.) 32, where it 
 was also held that n suit to enjoin collection of the purchase money until the 
 covenantee should remove the incumbrance on the premises was in affirmance of 
 the contract, and that consequently the suit could be maintained without tender- 
 ing a reconveyance of the land, or offering to account for rents and profits. 
 Arnold v. Carl, 18 Ind. 339; Ricker v. Pratt, 48 Ind. 78. Hoke v. Jones, 33 W. 
 Va. 501, obiter. Dayton v, Dusenbury, 25 N. J. Eq. 110, whore there were unsat- 
 isfied judgments binding the premises; Union Nat. Bank v. Pinner, 25 N. J. Eq. 
 495, tax liens; Stiger v. Bacon, 39 N. J. Eq, 442, prior mortgage; White v. 
 Stretch, 1 C, E, Gr. 76, sewer assessment; Woodrufif v. Depue, 14 N, J, Eq, 168, 
 prior mortgage, Henderson v. Brown, 18 Grant Ch, (Can,) 79; Lovelace v, Har- 
 rington, 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 dgainst 
 incumbrances la restricted to cases in which it appears that the covenantee is 
 insolvent, McLemore v, Mabson, 20 Ala. 127, citing Parks v. Brooks, 16 Ala, 
 539; Cullum v. Branch Bank, 4 Ala. 21; 37 Am. Dec, 725. So, also, in Missis- 
 sippi: Wofford V. Ashcraft, 47 Miss. 641. 
 
 2 Champlin v. Dotson, 13 Sm. & M, (Miss,) 553; 53 Am. Dec. 103, Detroit R. 
 Co, V, Griggs, 13 Mich, 51, In Rawle Govts, (5th ed,) 643, mention is made of a 
 class of cases which refuse the injunction unless the covenantee has paid off the 
 incumbrance, referring to section 378 of that work. Reference to that section, 
 however, shows that the rule is limited to cases in which the purchaser bought 
 with notice of the incumbrance, 
 
 8 Champlin v, Dotson, 13 Sm. & M. (Miss.) 553; 53 Am. Dec. 103. 
 
790 MARKETABLE TITLE TO EEAL ESTATE. 
 
 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.^ 
 
 §333. Foreclosure of purchase-money mortgage. We have 
 already seen that want of title in the vendor is no ground for resist- 
 ing the enforcement of a purchase-money mortgage or other secur- 
 ity, 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.^ 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 contract is executory, 
 it will be remembered that the jjurchaser, on failure of the title, is, 
 iu some of the States, permitted to detain the premises, if necessary,' 
 to reimburse him for what he has already 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 personal judgment against the covenantee, 
 or should make the adverse claimants parties. In either event the 
 suit would be perpetually enjoined as to the covenantee.* 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 mortgagor is sought, a different rule h^s been 
 held to apply if the vendor conveyed to the mortgagor with a cove- 
 nant against incumbrances, and an incumbrance on the premises 
 
 iQldfield V. Stevenson, 1 Ind. 153. 
 
 ' Ante, p. 435, and cases there cited. Cartwright v. Briggs, 41 Ind. 184, citing 
 Hubbard v. Cnappel, 14 Ind. 601; Hume v. Dessar, 39 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 furnish a perfect 
 title. The civil law leans greatly to the side of tho 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. 
 
 'Ante, p. 593. 
 
 'Kingsbury v. Milner, 69 Ala. 502. 
 
EEMEDY BY INJUNCTION AGAINST COLLECTION OF PUECHASE MONET. 791 
 
 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. ^ 
 
 § 334. Where there are no covenants. If the purchaser 
 accept 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.^ The very fact 
 that the conveyance was without covenants should raise, it would 
 seem, a strong presumption that the purchaser was advised as to the 
 weakness of the title,' and that tlie contract was one of hazard. 
 And if he purchases with knowledge that the title is doubtful, rely- 
 ing for his indemnity on the covenants he is to receive, and after- 
 wards accepts a conveyance with covenants for title, he cannot 
 afterwards enjoin the collection of the purchase money on the 
 ground that the title is Ijad, but will be left to his remedy on the 
 covenants,* unless, it would seem, he has been evicted and has had 
 no opportunity to set up that defense at law. 
 
 ' Ante, p. 436, n. CofEman 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. 
 
 » Ante, p. 616. Banks v. Walker, 3 Sandf. Ch. (N. Y.) 344. Sutton v. Sutton, 
 7 Grat. (Va.) 234; £6 Am. Dec. 109; Price v. Ayres, 10 Grat. (Va.) 575. 
 
 ^Of course no such presumption can arise if the purchaser be induced, through 
 fraudulent represer.tations, to accept a conveyance without covenants, as in 
 Denston v. Morris, 2 Edw. Ch. (N. Y.) 37. 
 
 ■•Merrittv. Hunt, 4 Ii-ed. Eq. (N. 0.) 409. The facts in this case are contained 
 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 dis- 
 tinct 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 substan- 
 tial 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 purchaser, he made no inquiry as to the title, nor asked any 
 delay for the purpose of looking into it, but was satisfied to give his bond for the 
 price immediately, and take a deed purporting, as was then thought, to convey a 
 
792 MAEKETABLE TITLE TO EEAL ESTATE. 
 
 § 335. Temporary and perpetual injunctions. Injunctions 
 to restrain the collection of the purchase money are not necessarily 
 in rescission of the contract for the sale of lands. A perpetual injunc- 
 tion would of course have that effect and should not be granted 
 unless the covenantee offers to reconvey the premises.' Temporary 
 injunctions are frequently granted on allegations of the insolvency 
 of the covenantor, until the rights of hostile claimants of the land 
 can be decided,^ or until the covenantor removes incumbrances from 
 the premises, iu the latter case, it seems, whether the covenantor is 
 solvent or insolvent.' 
 
 On dissolving an injunction against proceedings to collect the 
 purchase money, if it apj)ear that the mjunction was sought in good 
 
 fte, 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 con- 
 tract, in terms provided for such a possible or probable defect, and for the con- 
 sequences of it. If a person chooses to buy a doubtful or bad title with his eyes 
 open, and at his own risk, he is as much bound by that, as by any other contract 
 fairly made. So, it 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 cove- 
 nants for his security or indemnity, H.j cannot complain of any injury, for he 
 gets precisely what he bargained for, namely, a conveyance Avith the warranty of 
 the vendor. In such a case the conrt will not look into the title at all, because 
 the bargain was, that it was immaterial whether it was good or bad, provided the 
 vendee had a covenant of indemnity." Livingston v. Short, 77 111. 587, Raw- 
 lins v. Timberlake, 6 T. B. Mon. (Ky.) 235; Hall v. Priest, 6 Bush (Ky,), 14. 
 Miller v, Owens, Walker Ch. (Jliss.) 344; Anderson v, Lincoln, 5 How, (Miss.) 
 279, In Wailes v. Cooper, 24 Miss. 383, 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 inj unction under these circumstances, though 
 actually evicted, unless the vendor was insolvent. Parkins v. Williams, 5 Cold, 
 (Tenn,) 512, Demarett v. Bennett, 29 Tex. 307. Rawle Govts, 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, 
 
 ' .lackson 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. Mon-ison v. Beckwith, 4T. B. Mon. (Ky.) 
 78; 16 Am. Dec. 136. Houston v. Hurley, 3 Del. Ch. 347. 
 
 ^Ante, p. 436. 
 
REMEDY BY INJUNCTION AGAINST COLLECTION OF rUECHASE MONEY. 793 
 
 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.' 
 
 § 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 thei-e has 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 i^erpetual injunc- 
 tion to stay the collection of the purchase money will not be 
 granted.^ 
 
 ' Massie v. Sebastian, 4 Bibb (Ky.), 436; Morris v, SIcMillan, 3 A. K. Marsh. 
 (Ky.) 565. 
 
 ^ Rawle Govts, for Title (5tb ed.), § 875; High on Injunctions (Bd ed.), § 384. 
 The boolcs contain many cases, cited to this proposition, in which the question 
 of insolvency and non-residence of the vendor, and of the inconvenieucy of pro- 
 ceedings by the adverse claimant, was not raised; and in which no more was 
 decided than that mere want of title is no ground for detaining the purchase 
 money where the purchaser holds under a conveyance with covenants for title, 
 and has not been disturbed in the possession. The author has collected many 
 such cases. Ante, p. et seq. Magee v. McMillan, 80 Ala. 430; McLemore v. 
 Mabson, 20 Ala. 137. Busby v. Treadwell, 24 Ark. 457. Trumbo v. Lockridge, 
 4 Bush (Ky.), 416; English v. Thomasson, 82 Ky. 381. The Kentucky decisions 
 on this and kindred points, are collected in this case. A judgment for the pur^ 
 chase money cannot be enjoined on the ground that the vendor's lien on the prop- 
 erty has not been released, since payment of the judgment extinguishes the lien. 
 Wilder v. Smith, 13 B, Mou. (Ky.) 94. Gayle v. Fattle, 14 Md. 69. Here a suit 
 by an adverse claimant against the covenantor was being actually ijrosecuted, 
 but there was no allegation or proof of non-residency or insolvency of the cove- 
 nantor. Vick V. Percy, 7 Sm. & M, (Miss.) 256; 45 Am. Dec. 808. In McDonald 
 V. Green, 9 Sm. & M. (Miss.) 138, the point was queried, but was admitted in 
 Johnson v. Jones, 13 Sm. & M. (Miss.) 583, citing Wilty v, Hightower, 6 Sm. 
 & M. (Miss.) 350; Wailes v. Cooper, 84 Miss. 332. Henry v, Elliott, 6 Jones Eq. 
 (N. C.) 175, where the conveyance with warranty purported to carry a fee, but 
 the purchaser got only a life estate. Bumpus v. Platner, 1 Johns. Ch. (N. Y.) 
 313; Abbott v. Allen, 3 Johns. Ch. (N. Y.) 519; 7 Am. Dec. 554; Miller v. Avery, 
 2 Barb. Ch. (N. Y.) 118; Piatt v. Gilchrist, 3 Sandf. (N. Y. S. C.) 118. One who 
 100 
 
794 MAEKETABLE TITLE TO BEAI. ESTATE. 
 
 § 337. -WHERE THERE IS NO PRESENT RIGHT TO RECOVER 
 SUBSTANTIAL DAMAGES ON THE COVENANTS. 4. Where there 
 is no presejit right to recover suhstantial damages on the covenants 
 for title, hut tliere 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 uon-resident, 
 and though no suit by the real owner against the covenantee has 
 been prosecuted or threatened.' In a case of this kind, as we have 
 already seen, it would not seem inequitable to permit the covenantee 
 to resist the payment of the purchase money, provided he reeon- 
 veyed the premises to the grantor, and placed him substantially in 
 
 takes a conveyance from a person other than the vendor, cannot enjoin the col- 
 lection of the purchase money on the ground of defective title. He must look 
 to the covenants of his grantor. Holeman v. Maupin, 3 T. B. Mon. (Ky.) 380. 
 Remote possibilities that the covenantee will at some time in the future be dis- 
 turbed in his possession, constitute no ground for an injunction 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 ade- 
 quate and complete, though no right to recover substantial 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. 
 
 ' 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.) 395; Keyton v. Brawford, 
 5 Leigh (Va.), 39; Roger v. Kane, 5 Leigh (Va.), 606; Beale v. 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. Raw- 
 son, 29 W. Va. 487; 2 S. E. Rep. 85. In Stead v. Baker, 13 Grat. (Va.) 880, 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 covenantee 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 (e. g., a deed defec- 
 tively 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 the solvency of the vendor's estate after his death. Renick v. Renick, 5 
 W. Va. 285. 
 
REMEDY BY INJUNCTION AGAINST COLLECTION OF PUECHASE MONEY. 795 
 
 the same condition in which he was before the contract was made.' 
 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 mider which he may resist tlie 
 payment of the purchase money on failure of the title, nor, as a 
 general rule, limit the time during which the injnnction shall be 
 operative.^ 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 threatened 
 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 Vir- 
 ginia and West Virginia where it prevails. It is there rested upon 
 the ground that the covenantee has no adequate remedy at law, 
 there being no right of action on the covenant affirmatively or nega- 
 tively by way of recoupment or equitable set-off until an eviction 
 occurs.' Hence it appears that in tliose States there may be a con- 
 
 ' Ante, p. In Clark v. Hardgrovc, 7 Gi-at. (Va.) 407, it was held that the 
 
 covenantee, on failure of the title, might enjoin the collection of the purchase 
 money though the covenantor was seeking to collect the same from one whose 
 obligation the covenantee had assigned to the covenantor as collateral security 
 for the purchase money. 
 
 * 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 dormant rights as 
 well as those that are being actively asserted. In Gay v. Hancock, 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 purchase money should be stayed 
 until that suit should be decided. In Grantland v. "Wight, 2 Munf. (Va.) 179, it 
 was held that the injunction should not be dissolved until a good and sufficient 
 deed had been tendered to the purchaser. 
 
 'Koger V. Kane, 5 Leigh (Va.), 608, where it was said by Tuckee, 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 fi-om what maj' be called the preventive jus- 
 tice 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 proba- 
 bility 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 damages, 
 because he has no other means of ascertaining them. Thus, if the purchaser can 
 
796 MARKETABLE TITLE TO EEAL ESTATE. 
 
 dition of the title which would justify an injunction against the col- 
 lection 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 alleges 
 facts showing a clear outstanding title in a stranger, and the burden 
 will be on him to prove the existence of that title.* Allegations 
 that tlie title is defective, without showing in what respect, or facts 
 which establish nothing more than that the title is doubtful or 
 unmarketable, will not support tlie application for an injunction.^ 
 Care must be taken, however, to distinguish from these cases a class 
 in which injunctions to prevent a sale under a deed of trust, whether 
 executed to secure deferred payments of the purchase money for 
 land, or to secure general indebtedness, have been freely granted in 
 A^irginia and West Virginia upon an allegation that there is a cloud 
 
 show that lie has received a deed with general warranty, and that the title is bad, 
 yet if he has not been evicted fie 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 dam- 
 ages of the party ascertained. Whether in these cases relief could be given in 
 equity it is not necessarj- 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 assist- 
 ance of a court of equity where he is fuU-handed with proof that his title is 
 defective, although he has not yet been evicted." 
 
 ' Grantland v. Wight, 5 Munf. (Va.) 395. 
 
 ' Kinports v. Rawson, 39 W. Va. 487, where it was also held that idle and 
 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. French v. Howard, 3 Bibb (Ky.), 301. The complain- 
 ant must allege such facts in his bill as will affirmatively show such an incum- 
 brance or outstanding title as will defeat the vendor's title under which the com- 
 plainant 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 mside 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 sacri- 
 fice of the property, whereas, in a like case, the court will not interfere with the 
 vendor in enforcing his judgment since the doubt about the title may eventually 
 turn out to be frivolous and groundless." 
 
EEMEDT BY INJUNCTION AGAINST COLLECTION OF PUECHASE MOXEY. 797 
 
 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 a conveyance from his vendor's vendor, 
 with the agreement between all parties that he shall pay the pur- 
 chase money to his immediate vendor, he cannot, on failure of the 
 title, enjoin the collection of the purchase money. He will be 
 forced to his action on the covenants of his grantor.^ 
 
 'Miller v. Argyle, 5 Leigh (Va.), 460 (508); Gay v. Hancock, 1 Kand. (Va.) 73. 
 See, also, the cases cited, ante p. 794, n. Lane v. Tidball, Gilm. (Va.) 130; Peers 
 V. Barnett, 13 Grat. (Va.) 416. 
 
 » Price V. Ayres, 10 Grat. (Va.) 575. 
 
RESCISSION BY PROCEEDINGS IN EQUITY AFTER THE CONTRACT 
 HAS BEEN EXECUTED. 
 
 CHAPTEE XXXV. 
 OF FRAUD AND MISTAKE., 
 
 FRAUD ON THE PART OF THE GRANTOR. § 338. 
 
 General principles. 
 
 Damages in equity. § 339. 
 MISTAKE OF FACT. § 840. 
 
 General rule. 
 
 Negligence of purchaser. §341. 
 
 Immaterial mistakes. § 343. 
 
 Mistakes as to quantity. § 343. 
 MISTAKE OF LAW. § 344. 
 
 General rule. 
 
 Distinction between ignorance of law and mistake of law. § 345. 
 
 Erroneous construction of devise or grant. § 346. 
 
 Where the construction of the law is doubtful. § 347. 
 
 Misrepresentation of the law by the vendor. § 348. 
 
 § 338. FRAUD ON THE PART OF THE GRANTOR. General 
 principles. Equity accomplishes the rescission of an executed con- 
 tract by cancelhng the written evidence thereof, and decreeing that 
 either jjarty 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.' The jurisdiction of 
 equity in such cases has been reduced to very narrow limits ; and, 
 where it has been invoked by tlie purchaser on failure of the title, 
 has been, with certain seeming exceptions, invariably denied, unless 
 the purchaser was induced to accept the conveyance by a fraudulent 
 misrepresentation or concealment of facts on the part of the vendor, 
 or unless the parties were mutually mistaken as to the existence of 
 some fact or facts upon which the validity of the title depended.^ 
 The exceptions to this rule are those cases in which the purchaser 
 is permitted to enjoin the collection of the purchase money where 
 
 ' 1 Sugd. Vend. 243. ' 
 
 ' Ante, p. Willan v. Willan, 16 Ves. 83. Madden v. Leak, 5 J. J. Marsh. 
 (Ky.) 95; Ogden v. Yoder, 5 J. J. Marsh. (Ky.) 424. 
 
OF FKAUD AND MISTAKE. 799 
 
 the grantor is insolvent or a non-resident so that a recovery against 
 him will be either impossible or unavailing when an eviction shall 
 have occuiTed.^ Other exceptions, indicated 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 cei-tainty of eviction will be permitted 
 to detain the purchase money provided he reconveys the premises 
 to the grantor.' But it is believed that no ease 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.^ 
 
 A decree for the rescission of an executed contract must provide 
 that within a reasonable time the grantee shall execute a reconveyance 
 duly probated for registration in the State in which the land lies.* 
 But a mere delivery of a deed to the purchaser without acceptance 
 thereof by him, will not oblige him to execute a reconveyance before 
 he can recover the purchase money, the deed having misdescribed the 
 property.'' Of course a covenantee who has been evicted from the 
 premises, cannot maintain a suit in equity to rescind the contract and 
 recover back the purchase money. His remedy at law is adequate and 
 complete. He has a present right to recover substantial damages for 
 breach of the covenant.^ 
 
 The jurisdiction of a court of equity to rescind a contract for the 
 sale of lands which has been executed by a conveyance, on the 
 ground of fraudulent misrepresentation or concealment of facts 
 respecting the title, is clear and undoubted.'' We have already seen 
 
 '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 con- 
 tract. Parker v. Parker, 93 Ala. 80; 9 So. Rep. 426. 
 
 ' Ante, ch. 26. 
 
 'See the cases cited, ante, p. . Decker v. Schulze, (Utah) 39 Pao. Rep. 361. 
 
 * Winfrey v. Drake, 4 Lea (Tenn.), 390. 
 
 'Fenton v. Alsop, 79 Cal. 403; 21 Pac, Rep. 839. 
 
 «Ohling V. Luitjens, 33 111. 33. Sec. also, Bradley v, Dibrell, 3 Heisk. 
 (Tenn.) 533, where the complainant setting out facts showing a breach of war- 
 ranty only, amended his bill charging fraud and misrepresentation by the 
 vendor. 
 
 'l Sugd, Vend. (8th Am. ed.) 375 (346); Dart V. & P. 377; Bigelow on Fraud, 
 415. BeiTy v. Arimstead, 3 Keen, 331; Gibson v. D'Este, 3 Y. &C. 543. Green- 
 
800 MARKETABLE TITLE TO KEAL ESTATE. 
 
 what acts, conduct and declarations of the vendor in relation to the 
 title during the negotiations of the parties, are to be deemed fraudu- 
 lent ; 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.^ We 
 have seen that one who has been induced to accept a conveyance of 
 lands through the fraudulent representations of the grantor respect- 
 ing the title, is not limited to his action on the covenants contained 
 in the deed. Equity has concurrent jurisdiction with courts of law 
 in cases of fraud, and the objection that a grantee, seeking rescission 
 of the contract, should sue at law on his warranty, will not be 
 entertained." 
 
 The general rule is that on application for the rescission of an exe- 
 cuted 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 liim 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 
 
 lee V. Gaines, 13 Ala. 198; 48 Am. Dec. 49; Read v. "Walker, 18 Ala. 333; Lanier 
 V. Hill, 25 Ala. 554, where an administrator, c. i. a., fraudulently 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; Williams v. Mitchell, 30 Ala. 
 299; Front v. Roberts, 32 Ala. 427. Farham v. Randolph, 4 How. (Miss.) 451; 
 35 Am. Dec. 403; Davidson v. Moss, 5 How. (Miss.) 673; English v. Benedict, 25 
 Miss. 167; Rimer v, Dugan, 39 Miss. 477; 77 Am. Dec. 687. Fitch v. Baldwin, 
 17 Johns. (N. Y.) 161. Shackelford v. Handly, 1 A. K. Marsh. (Ky.) 495; 10 
 Am, Doc. 753; Feebles 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. 
 
 ' Ante, pp. . 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 fi-aud upon the company. Union 
 Fac. R. Co. V. Barnes, 64 Fed. Rep. 80. 
 
 ''Ante, p. . 1 Story Eq, Jur. § 193; Adams Eq. 177; 3 Fars. Cont. 177. 
 Meek v. Spracher, 87 Va. 162; 12 8. E. Rep. 397. But even in those jurisdic- 
 tions in which the distinctions between legal and equitable procedure have been 
 abolished, an action to rescind for fraud cannot be joined with an action on the 
 covenants for title, since the former disaffirms, while the latter affirms, the con- 
 tract. McLennan v. Prentice, (Wis.) 55 N. W. Rep. 764. 
 
OF PKAUD AND MISTAKE. 801 
 
 had absolutely no title. In sucli a case the title is considered worth- 
 less, and the rule is tlie same wliether 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.^ Neither does the rule apply if it be clear that the 
 seller will not receive back the premises.^ 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.' The pur- 
 chaser will be entitled to a decree for the value of his improvements, 
 upon rescission of an executed contract for the sale of lands on the 
 ground of fraud or mistake respecting the title. But he must 
 account for the rents and profits.'' 
 
 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.' But it will 
 suffice to allege the specific fraudulent representation that was made, 
 without setting out facts showing a want of title.^ 
 
 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.' 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 
 
 1 Bond V. Ramsey, 89 111. 29. Babcock v. Case, 61 Pa. St. 437; 100 Am. Deo. 
 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. 353. 
 
 ' Ante, p. . Culbertson v. Blanchard, 79 Tex. 486; 15 S. W. Rep. 700. 
 
 » Wheeler v. Standley, 50 Mo. 309. 
 
 * Baptiste v. Peters, 51 Ala. 158. 
 
 * 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.) 159. 
 
 ' OrendorfE v. Tallman, 90 Ala. 641: 7 So. Rep. 821. 
 
 ' Ante, p. . Where it appeared that the purchasers were non-residents, and 
 that the prevalence of yellow fever in the vendor's locality prevented an earlier 
 offer, it was held that an offer to rescind made six months after discovery of the 
 fraud, was made within a reasonable time. Orendorff v. Tallman, 90 Ala. 641; 
 7 So. Rep. 821. 
 
 101 
 
802 MAKKETABLE TITLE TO EBAL ESTATE. 
 
 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.^ In America, the 
 rule seems to be that equity will not take jurisdiction of a suit for 
 damages, when that is the sole object of the bill, and when no other 
 relief can be given ; but if other relief is sought by the bill which 
 a court of equity is alone competent to grant, and damages are 
 claimed as incidental to that relief, the court, being properly in 
 possession of the cause, will, to prevent multiplicity of suits, pro- 
 ceed to determine the whole cause.^ This rule, doubtless, prevails 
 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 contract entirely, 
 and not by awarding compensation in damages, except, perhaps, 
 where the complainant has, for some reason, an inadequate remedy 
 at law.^ 
 
 § 340. MISTAKE OF FACT, aeneral 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 refus- 
 ing specific performance of those which are executory.* The ques- 
 tion of mistake, as it affects the right to rescind an executory con- 
 
 1 1 Sugd. Vend. (14th ed.) 55, 333, 251; 31 & 22 Vict. c. 37. 
 
 ' Ferson v. Sanger, Davijs (U. S.), 252, 261. 
 
 » 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; Rob- 
 inson V. Galbreath, 4 Bibb (Ky.), 183, which were all cases in which the contract 
 was for the sale of personal property. 
 
 ■* 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 essential!} of the agree- 
 ment, 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. 
 
OF FRAUD AND MISTAKE. 803 
 
 tract, is lowered in importance by the general rule which iDcrmits 
 the rescission of such a contract on a clear failure of the title irre- 
 spective of other considerations, unless that right has been waived, 
 or the vendor is allowed to perfect the title.^ But execioted con- 
 tracts 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 ha/e arisen under these two heads.^ The cases in 
 which rescission of an executed contract for the sale of land on the 
 ground of mistake as to the title has been sought, may be divided 
 into two classes : (1) Those in which there was a mutual mistake of 
 the parties as to the existence or non-existence of some particular 
 fact or facts upon which the validity of the title depends, and which 
 the parties must be presumed to have had in contemplation at the 
 time the conveyance was made.^ (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 
 
 ' As to the right to rescind an executory contract on the ground of mistake aa 
 to the title, see Mead v. Jolmson, 3 Conn. 597. Smith v. Robertson, 23 Ala, 312. 
 Smith V. Maokin, 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. Alls, 22 Iowa, 174. 
 
 ■' Hurd V. Hall, 12 "Wis. 125. 
 
 *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 mistaken 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. 138, land conveyed was 
 supposed to be the separate estate of a married woman, when in fact it belonged 
 to her deceased husband's estate, and adjoined the separate property of the wife 
 The contract was rescinded on the ground that there was a mistake of fact. 
 Where an 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. Grifflth v, Townley, 69 Mo. 13; 38 
 Am. Rep. 476. 
 
804 MAEKKTABLE TITLE TO REAL ESTATE. 
 
 transi^ired without the knowledge of the parties,^ as where the pur- 
 chaser of an estate,^M7' autre vie, takes a conveyance in ignorance of 
 the fact that the person on whose hfe the estate depends is dead.^ 
 Of the same class is a case in which, at the time of the sale, the parties 
 were ignorant that the land had previously been sold and conveyed 
 by one acting under a power of attorney from the vendor.' In aU 
 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.* But care must be taken to distinguish 
 
 1 1 Story Eq. Jur. {13th ed.) § 143. Hitchcock v. Giddings, 4 Price, 135. This 
 is the leading English case on the point. The purchaser hought an interest 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. Leonards has expressed himself in guarded terms about this 
 case, and Lord Eldon doubted its authority. 1 Sugd. Vend. (8th Am. ed.) 876 
 (247). 
 
 'Allen V. Hammond, 11 Pet. (U. S.) 68, ob. diet. 
 
 ' Arrhistead v. Hundley, 7 Grat. (Va ) 53; Humphrey v. McClenachan, 1 Munf. 
 (Va.) 493. 
 
 ■• It will be found that, in nearly all the cases cited below, no possession 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.) 433, where a municipal corporation sold a lot to enforce an 
 assessment, and owing to a defect in the assessment proceedings, the title was 
 bad. Martin v. JlcCormick, 4 Seld. (N. Y.) 331, where a tax title had been pur- 
 chased under the mistaken belief that the time for redemption had expired. In 
 Granger v. Olcott, 1 Lans. (N. Y.) 169, the principle stated in the text was recog- 
 nized, 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 convey- 
 ance were made. In Goettel v. Sage, 117 Pa. St. 398; 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 prem- 
 ises 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 having no existence, there was a mistake of fact which entitled 
 the purchaser to relief. In Hyne v. Campbell, 6 T. B. Mon. (Ky.) 286, the 
 grantor held under a conveyance from William May, whom he believed, and 
 
OF FRAUD AND MISTAKE. 805 
 
 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 
 Off a paramount title to the estate in a stranger, e. g., mere ignorance 
 of tlie fact til at 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 provide against defects of title of which the parties are ignorant.' 
 
 innocently represented to the grantee, to have been the patentee of the land, 
 whereas the patent had been issued to George May, and William May had no title 
 whatever. The conveyance was canceled on the ground of mistake So, also, 
 in Bowlin v. Pollock, 7 T. B. Men. (Ky.) 36, 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 cer- 
 tain school-land certificates, in ignorance of the fact that they were void because 
 the school commissioners had not complied with certain provisions of the law 
 relating to such sales, and it was held that, there being a mistake of fact, the 
 purchaser 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, 23 Wis. 266; 94 Am. Dec. 598. 
 
 ' Middlekauff v. Barrick, 4 Gill (Md.), 290, 399. Bates v. Delavan, 5 Paige (N. 
 Y.), 299. Sutton v. Sutton, 7 Grat. (Va.) 234; 56 Am. Dec. 109. See the remarks 
 of the court in Hurd v. Hall, 13 Wis. 135, 133. Trevino v. Canto, 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. Urmstou v. Pate, cited in Wakeman v. Duchess of Rutland, 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 insufficiently exe- 
 cuted 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 convey- 
 ance 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 in 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 v. Stewart, 6 CI. & 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 in both is thnt 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 
 
806 MAEKETABLE TITLE TO EEAL ESTATE. 
 
 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 speciallj^ drawn, and which must be supposed to have 
 been necessarily contemplated by them at the time the conveyance 
 was made.' If this were not true, any conveyance would be liable 
 to rescission on the ground of mistake, if, after it had been executed, 
 the title should be first discovered to be bad.^ 
 
 distinguished, we content ourselves with stating the rule as we find it, namely, 
 that if a man part with or purchase property in ignorance of facts showing the 
 title to such property to he 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. Lan- 
 guage of the court in Comstock v. Son, 154 Mass. 389; 28 N. E. Rep. 596. 
 The fact that the grantor believed he had a good title cannot relieve him from 
 liability on his covenants. Sanborn v. Gunter, (Tex.) 17 S. W. Rep. 117. 
 
 ' It is scarcely necessary to say that if the fact rendering void the title is 
 known to the vendor and unknown to the purchaser, the right of the latter to 
 relief is grounded not so much upon mistake or ignorance of facts upon his part 
 as upon a fraudulent concealment of the facts by the vendor. 1 Story's Eq. Jur. 
 (13th ed.) i; 147. 
 
 ^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 coveyance to him of lands is entitled to insist upon a good title 
 and a deed with co\'enants, pays the consideration and is then tendered a deed 
 without covenants. He demands a deed with covenants, and this is refused. He 
 then accepts the deed without covenants, and, believing the title to be clear, 
 records it and continues to occupy and improve the property. An incumbrance 
 unknown at the time to both parties is afterwards discovered. Both parties are 
 innocent of any fraud. It is conceded that no legal liability rests upon the 
 grantor in such a case. Bates v. Delavan, o Paige (N. Y.), 300; Burwell v. Jack 
 son, 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 equi- 
 table relief ? "We think not. The theory of the judgment is that the acceptance 
 of the quit-claim deed in jjerformance 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 deceptioa 
 or suppression on the part of the grantor. Secondly, the delivery and accept- 
 ance of the deed constituted a full execution of the prior parol contract. The 
 
OF FEADD AND MISTAKE. 
 
 807 
 
 If a man purchtise liis 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. 
 
 title to the land passed under the deed, and the original contract was merged in 
 it. After a contract has been thus fully performed, there can be no jurisdiction 
 in equity to decree a second performance. In a proper case equity has jurisdic- 
 tion, on the ground of mistake, to reform the instrument or deed by which a 
 prior contract has been executed or performed, but to authorize the exercise of 
 this jurisdiction there must have been a mutual mistake as to the contents of the 
 instrument sought to be reformed, or else mistake on one part and fraud upon 
 the other. Where both parties are innocent of fraud, and both know the char- 
 acter and contents of the instrument, it cannot be reformed in equity merely on 
 the ground that one of the parties would have exacted and would have been 
 entitled to exact a different instrument had he been acquainted with facts render- 
 ing it to his interest to do so, or which, if he had known them, would have 
 caused him to reject the instrument which he accepted. It is beyond the power 
 even of a court of equity to make contracts for parties. The jurisdiction to 
 reform written instruments in cases free from fraud is exercised only where the 
 instrument actually executed difEers from what both parties intended to execute 
 and supposed they were executing or accepting, and this mistake will be cor- 
 rected in equity only on the clearest proof, and then only by making the instru- 
 ment conform to what both parties' intended. But an instrument or covenant, 
 the nature and contents of which are fully comprehended by both parties at the 
 time of its execution, 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 contract 
 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 covenants, 
 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." 
 
 ' 1 Sugd. Vend. (14th Eng. ed.) 245. Bingham v. Bingham, 1 Ves. Sen. 126; 
 Cooper V. Pbibbs, L. R., 3 H. L. 170. These, however, were oases in which the 
 mistake was rather as to the law applicohle to known facts than mistake as to 
 the facts themselves. The rale is thus broadly stated by Lord St. Leonaeds 
 (1 Sugd. Vend. [8th Am. ed.] 533): " If a person having a right to an estate pur- 
 chase 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 dis- 
 
808 MAEKETABLB TITLE TO EEAL ESTATE. 
 
 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.' Of course, such 
 an action may be maintained in those States in which the distinction 
 between legal and equitable jurisdiction no longer exists, or where 
 the courts have power to enter judgment with a condition that it 
 shall not operate until the plaintiff reconveys the premises to the 
 grantor. And, also, where no such land is in existence as that 
 which the deed purpoi'ts to convey.^ 
 
 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 con- 
 tract on the application of the grantee.^ 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.* The acceptance 
 
 tinction seems to have been made between ignorance of fact and ignorance of 
 lav/ in cases in whicli the party has acted upon the mistaken belief that he had 
 no interest in the premises. Newl. Cent, in Eq. ch. 28, 433. See, also. Fitch v. 
 Baldwin, 17 Johns. (K. Y.) 161. Where A. set up an adverse claim to certain land 
 and afterwards compromised it, and a deed was made to him upon valuable con- 
 sideration 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. 
 
 ' 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 belong- 
 ing to a stranger, who was in possession, and the grantee never had possession. 
 "Under such circumstances, at the first glance a reconveyance would seem unneces- 
 sary. If, however, the grantor had conveyed with general warranty and had 
 afterwards acquired title to the premises, it would enure to the benefit of the 
 grantee; hence the necessity of a reconveyance. 
 
 « D'Utricht v. Melchior, 1 Ball. (Pa.) 428. 
 
 'Butler V. Miller, 15 B. Mon. (Ky.) 617. 
 
 * D'Utricht v. Melchior, 1 Ball. (Pa.) 429. Marwin v. Bennett, 8 Paige Ch. (N. 
 Y.) 311. In Morse v. ElmendorfE, 11 Paigj Ch. (N. Y.) 277, it appeared that the par- 
 ties contracted for the sale and conveyance of a supposed gore of land which had 
 
OF FEAUD AND MISTAKE. 
 
 809 
 
 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.^ 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 cori-ection 
 of the error.^ Of course, if the land conveyed be not that which 
 was purchased, the grantee will be relieved in equity; and it is 
 immaterial in such cases whether the conveyance was with or with- 
 out covenants of title.' 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.* 
 
 The rule that the grantee on rescission of the contract must recon- 
 vey and restore the premises to the grantor and place him substanti- 
 ally in statu quo, applies as well where the contract is rescinded on 
 the ground of mistake as for other reasons. On discovery of the 
 mistake the purchaser has the right to elect to rescind and reconvey, 
 or to aifirm the contract, pay the purchase money, and look to his 
 covenants for relief.^ But it has been held that if by mutual mis- 
 take a part of the warranted premises is embraced within the limits 
 
 in fact no existence, there being a mistake by both parties as to that fact. It was 
 held that the vendor could not compel specific performance by the purchaser, 
 and neither could the latter require the vendor to convey an adjoining lot of 
 land to which he had title. 
 
 ' Frazier v. Tubb, 2 Heisk. (Tenn.) 663. The fact that a deed, by mistake, 
 does not convey the laud 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; 31 N. E. Eep. 475; 
 Roehl V. H-xumesser, 114 Ind. 311; 15 N. E. Rep. 345; Gordon v. Goodman, 98 
 Ind. 369. 
 
 * Johnson V. Houghton. 19 Ind 359. See ante, p. , "Reformation of Deeds." 
 
 " Kyle V. Kavanaugh, 103 Mass. 356; 4 Am. Rep. 560; Spurr v. Benedict, 99 
 Mass. 463. 
 
 *Lamkin V. Reese, 7 Ala. 170, citing Long v. Brown, 4 Ala. 633; Evans v. 
 Boiling, 5 Ala. 550. 
 
 'Sandford v. Travis, 7 Bosw. (N. Y.) 498; Crosier v. Acer, 7 Paige (N. Y.), 
 137. 
 
 102 
 
810 MAEKETABLE TITLE TO EEAL ESTATE. 
 
 of an older and snperior grant, the purchaser is entitled to detain 
 the purchase money or to recover it h'dck pro tanto without offering 
 to restore the premises to the grantor.' 
 
 § 341. Negligence of purchaser. If hy reasonable dihgence 
 the party seeking relief on the ground of mistake of fact could 
 have been correctly informed as to such fact he will not be entitled 
 to relief. The mistake must not have arisen from negligence, the 
 means of knowledge being. easily accessible.^ Thus it is appre- 
 hended 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 title 
 was outstanding in a stranger ; for example, if there was a convey- 
 ance of the premises by the vendor's grantor on record prior to that 
 under which the vendor held.' 
 
 § 342. Immaterial mistakes. The mistake as to a matter of 
 fact which will entitle the purchaser to relief must be material. Tlie 
 fact must have been essential, and not merely incidentah to the 
 validity of the contract, and the mistake nnist have been such that 
 but for it the purchaser would not have accepted the title, or the 
 vendor have parted with his rights.'' 
 
 'Doyle V. Hord, 67 Tex. 631; 4 S. W. Rep. 241; Gass v. Sanger, (Tex. Civ. 
 App.) 30 S. W. Rep. 502. 
 
 » Bispham's Eq. (3d ed.) § 191; Story Eq. Jur. (18th ed.) p. 153; Kerr F. & M. 
 407. Trigg v. Reade, 5 Humph. (Teun.) 541; 42 Am. Dec. 447. Norman v. 
 Norman, 36 S C. 41; 11 S. E. Rep. 1096. 
 
 ' 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 Edwakd Stjgdbn on this ground. The purchaser might 
 have ascertained the fact by a search. 1 Sugd. Vend. (8th Am. ed.) 376 (347). It 
 is not easy to distinguish such a case from anj' other in which the title of the 
 grantor turns out to have been entirely worthless at the time of the contract. 
 There would, however, seem to be no room for the application of the doctrine of 
 mistake in a case in which the vendor was in possession and prima facie owner 
 of the estate. If there were, a covenant 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 satisfac- 
 tion of his lien on the record, in ignorance of a junior incumbrance on the prem- 
 ises. 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.) t^ 191; 1 Story Eq. Jur. (13th ed.) 
 § 141. Trigg V. Reade, 5 Humph. (Tenn.) 529; 43 Am. Dec. 447; Grymes v. 
 Saunders, 93 U. S. 55. 
 
OF FEAUD AND MISTAKE. 811 
 
 § 343. Mistakes as to quantity. Mistakes in the quantity of 
 land conveyed liave frequently been made the grounds of applica- 
 tion by the purchaser for relief, either in the rescission of the entire 
 contract or in the ratable abatement of the purchase money. Ordi- 
 narily no question of title is involved when the grantee merely com- 
 plains that the boundaries set forth in the deed do not contain the 
 number of acres therein purported to be conveyed, or which the 
 purchaser, under the contract, is entitled to require.^ If, however, 
 there be a mutual mistake as to the location of adjoining surveys, by 
 which the land is encroached upon, the title to the full tract bar- 
 gained for does not pass, and the purchaser is entitled to relief, 
 though the conveyance was without warrant.* 
 
 § 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 ques- 
 tion. 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 encourage 
 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 unscrupulous 
 party knew that he might at any time escape the obligation of his 
 contract by declaring his ignorance of the law in the premises. 
 
 1 Thompson v. Jackson, 3 Rand. (Va.) 504, 509; 15 Am. Dec. 721. 
 
 ^ Moore v. Hazelwood, 67 Tex. 624, citing Daughtry v. Kuolle, 44 Tex. 450; 
 O'Connell v. Duke, 29 Tex. 300; 94 Am. Dec. 283; Smith v. Fly, 24 Tex. 345; 76 
 Am. Dec. 109. In Brooks v. Riding, 46 Ind. 15, it appeared that both the grantor 
 and grantee were ignorant of the fact 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. 
 
812 MAEKETABLE TITLE TO EEAL ESTATE. 
 
 Consequently it has been decided in many cases that ignorance or 
 mistakes of the law affecting the validity of the title to real estate is 
 no ground for reheving the purchaser from his bargain.' 
 
 On the other hand, there have been many cases in which parties 
 have been permitted to avail themselves of a mistake of the law 
 
 ' 1 Fonbl. Eq. ch. 2, § 7. See, also, the authorities cited, post, n. . 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 pecu- 
 liar in their character, and to involve other elements of decision. Shotwell v. 
 Murray, 1 Johns. Ch. (^. Y.) 512, one of Chancellor Kent's decisions, is a lead- 
 ing case on this point. A. purchased at an execution sale to enforce a judgment 
 lien. There was 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 sale an execution was issued under the senior judgment, and against 
 this the purchaser sought an injunction, claiming that he was mistaken in 
 believing the 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. C. 41; 11 S. E. Rep. 1096, it was held that a purchaser at a sale under a judg- 
 ment 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 corporation, 
 no process having been served upon him. The purchaser was aware of the 
 facts, but ignorant that the judgment was void. Relief was denied. In 
 McAninch v. Laughlin, IB 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 purchaser, as a general rule, 
 is subrogated to the benefit of the lien. Ante, p. . 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 was 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 
 ot 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. 238. Good v. Plerr, 7 W. & S. (Pa.) 
 353; 43 Am. Dec. 236. In Bank of U. S. v. Daniel, 12 Pet. (U. S.) 55, it was 
 said; " Ve.xed as the question formerly was, and delicate as it now is, from the 
 confusion in which numerous and conflicting decisions have involved it, no dis- 
 cussion of cases can be gone into, without hazarding the introduction of excep- 
 
OF FRAUD AND MISTAKE. 813 
 
 relating to their private rights. Most of these cases, so far as they 
 have arisen between vendor and purchaser, have been those in 
 which relief was sought by the vendor or grantor on tlie 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 existence, 
 of that interest.' And in some cases tlie purchaser has beeu 
 relieved from the obligation of his contract on the ground of a 
 
 tions 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, ia 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. Rousmainiere, 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 
 number, 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 XJ. S. 360. See Kyle v. Febley, 81 Wis. 
 67; 51 N. W. Rep. 257. Judge Stoky closes his review of the cases upon this 
 point with the following observations: "We have thus gone over the principal 
 cases supposed to contain contradictions of, or exceptions to, the general 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 under- 
 taking 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 circumstances." Eq. Jur. 
 (13th ed.) § 137. 
 
 ' 1 Story Eq. Jur. § 131. Landsdowne v. Landsdowne, Mos. 364; 3 Jao. & 
 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. Zollmaa 
 V. Moore, 21 Grat. (Va.) 313, 334, apparently conflicts with this case, but is dis- 
 tinguished 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 in the vendor's measure of 
 relief, but it is not clearly perceived how any change in the prirwiple upon which 
 relief 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. 
 
814 MARKETABLE TITLE TO EEAL ESTATE. 
 
 mutTial mistake of the law in respect to some fact upon which the 
 vahdity of the title he was to receive depended.^ The principle 
 upon which relief was granted was the same in either case. 
 
 § 345. Distinction between ignorance of law and mistakes 
 of law. In some cases a distinction has been drawn between mere 
 
 ' Fi-y Sp. Perl (3d Am. ed.) § 768; 15 Am. & Eng. Encyc. of L. 634. 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 mistal^en 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 ignorant or mistaken 
 with respect to his own antecedent and existing private legal rights, interests, 
 estates, duties, liabilities, or other relations, either of property, 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 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 mistake of fact." All of this 
 seems capable of reduction to the simple observation by Judge Stokt (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 himself 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 igno- 
 rance 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 igno- 
 rance 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 mis- 
 take 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. [18thed.jp. 131), and if to that should be added " whether such ignorance arise 
 from mistake of a particular fact of from mistake of a particular law," we would 
 iave 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. (18th 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 &fi.fa. without 
 
OF FEAUD AND MISTAKE. 815 
 
 ignorance of the law and mistakes of tlie law, relief being refused 
 in the former case and granted in the latter. 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 
 
 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 compen- 
 sation, and the contract was rescinded on the ground of mistake of law. In 
 Lawrence v. Beaubien, 2 Bailey L. (S. C.)628; 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 
 consideration 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 Warvelle Vend. 
 756; Fry on Sp. Perf. (3d Am. ed.) 768; Bispham's Eq. (3d ed.) § 187; Prof. 
 Bigelow's note. Story's Eq. Jur. (13th ed.) p. 112, and the same writer's mono- 
 graph " Mistake of Law as a Ground of Equitable Relief," 1 L. Quart. Rev. 298. 
 Drew V. Clarke, Cooke (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 
 TJ. S. 260, 384, 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 and 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 executed it at the request of a mutual friend, and as a 
 matter of courtesy and good will. This was a case of much diflBculty. Brown, 
 J., rendered a dissenting opinion. 
 
 ' Lawrence v. Beaubien, 2 Bailey L. (8. 0.) 623; 23 Am. Dec. 155; Lowndes v. 
 Chisholm, 3 McCord Ch. (S. C.) 455; 16 Am. Dec. 667; reaffirmed in Brock v. 
 O'Dell, (S. C.) 31 S. E. Rep. 976. The concurring opinion of Paige, Senator, in 
 Champlin v. Laytin, 18 Wend. (N. T.) 423; 31 Am. Dec, 382, contains an instruc- 
 tive review of the authorities upon this point, and for that reason is here quoted 
 at considerable length: "I am prepared to assent to the proposition of the vice- 
 chancellor, that a contract entered into under an actual mistake of tlis 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 
 
816 MARKET ABLE TITLE TO EEAL ESTATE. 
 
 cases no way of determining tlie 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, 
 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 
 
 set aside as a contract founded in mistalse of matters of fact. The proper dis- 
 tinction, in my judgment, is taken in the case of Lawrence v. Beauhien, 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 Hopliins v. JIazyck, 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; Bing- 
 ham V. Bingham, 1 Ves. 126; Pusey v. Desbourne, 3 P. Wms. 320; Landsdowne 
 v, Landsdowne, JIos. 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. 
 & Stu. 561, is to the same efEect. So is the case 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 principles 
 of j ustice require relief in the one case, they equally do in the other. The vice- 
 chancellor, Sir John Leach, in Naylor v. Wench, 1 Sim. & Stu. 555, says: ' If 
 a party acting in ignorance of a plain and settled principle of law is induced lo 
 give up a portion of his indisputable property to another under the name of a 
 compromise, a court of equity will relieve him from the effect of his mistake.' 
 Although the case of Hunt v. Eousmaniere, 1 Pet. (U. S.) 13, ultimately turned 
 on another question, yet the opinion of Chief Judge IMaeshall in that case, as 
 reported in 8 Wheat. (U. S.) 205, clearly shows which way was the inclination of 
 his mind. He says, spealdng of the case of Landsdowne v. Landsdowne, j\Ios. 
 364, ' that, as a case in which relief has been granted on a mistake of law, can- 
 not 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 efEect of the instrument is acknowl- 
 edged 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 it down that there may not be cases in which a court of equity will 
 relieve against a plain mistake arising from ignorance of law.' Johnson, J., ia 
 Lawrence v. Beaubien, 2 Bailey Eq. (S. C.) 623; 23 Am. Dec. 155, says: 'All the 
 diflBculty and confusion which have grown out of the application of the maxim, 
 ignoraniia juris neminem excusat, appears to me to have originated in confound- 
 ing the terms ignorance and mistake. The former is passive and does not pre- 
 
OF FKAUD AND MISTAKE. 
 
 817 
 
 entered into tlie contract.' These observations would applj', of 
 course, to all cases where the parties had been erroneously or falsely 
 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 obligation or loss 
 incurred by that act. This being so, no reason is perceived why 
 one who purchases property upon a mistaken representation or 
 conclusion as to what is the law applicable to some fact or facts 
 upon which the validity of tiie title depends, should not be aiiorded 
 a like relief. If a clear, hona fide, mistake of the law be established 
 by evidence other than the uncorroborated testimony of the pur- 
 chaser 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. 
 
 sume to reason, but the latter jjresumes 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 dis- 
 criminating between the cases of actual ignorance and those of feigned igno- 
 rance. So, where the ignorance or mistake of the law is only in one of the con- 
 tracting 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 mquo 
 et bono ought not to be binding, and where such mistake is either acknowledged 
 or undoubted evidence 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 the compromise of doubtful right, or was entered into as a 
 speculating bargain. By adopting the rule with these qualifications, in my judg- 
 ment no mischievous consequences would follow, but, on the contrary, the inter- 
 ests of justice would be advanced." 
 
 ' 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, 
 103 
 
;818 MARKET ABLK TITLE TO EEAI. ESTATE. 
 
 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 legislatiire, nor to foreign laws, nor to the laws of 
 the other States of the Union. ^ 
 
 § 346. Erroneous construction of devise of grant. If the 
 ignorance of the law applicable to some fact upon which the title 
 depends, consist in the erroneous construction of a devise or grant 
 through which title is claimed, it seems according to several English 
 decisions, that the purchaser will be relieved.^ It has been held 
 that the maxim ^^ Ignorantia juris haud exoumt^'' \\&e, no applica- 
 tion when the word ''Jus" denotes private rights,' 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 relief.^ It 
 lias also been said that the rule " ignorance of the law is no excuse,"' 
 applies only in criminal cases,^ but that dicUim is not regarded as 
 authority. 
 
 accept a title derived tlirough it witliout having tlie invalidity of the title occur 
 to my mind. Here there is a plain case of ignorance of the law. But it is obvi- 
 "ously not the same case as where the invalidity of the title is 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 
 anistaken 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. 
 
 ' 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.) 113, 130; 19 Am. 
 J)ec. 353. Norton v. Marten, 3 Shep. (Me.) 45. 
 
 'Beanchamp v. Winn, L. R., 6 H. L. 334, Lord Chelmsfohd saying that igno- 
 rance of the law arising upon the doubtful construction of a grant is very different 
 Srom the ignorance of a well-known rule of law, and that there are many cases to 
 1)e found in which equity, upon a mere mistake of the law, without the admix- 
 iture 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 conflict- 
 ing language of the same .judge in Midland Great West., etc., R. Co. v. Johnson, 
 « H. L. C. 810, 811, and Story's Eq. Jvu-. (18th ed.) § 127. 
 
 3 Per Lord Westbdry 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 pi'ivate rights are governed by the general law. 
 
 "Bispham's Eq. (3d ed.) § 187, 
 
 ^ Per Lord King in Landsdowne v. Landsdowne, Mos. 864; criticised,! Story 
 i;q. Jur. (13th ed.) § 116. 
 
OF FRAUD AND MISTAKE. 819 
 
 § 34Y. 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 difEerent 
 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.* 
 
 § 348. Misrepresentation of law by vendor. It is a general 
 nile that if a party is induced to execute a contract by representa- 
 tions which are untrue, but innocently made, he will be entitled to 
 a rescission.^ 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.' The question 
 whether the mistake in such cases was one of law or of fact seems 
 not to have been considered important, it being apparently conceded 
 that the falsity of the representation alone entitled the purchaser to 
 
 '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 believed, 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 imparted to him 
 any knowledge of the legal invalidity of the supposed incumbrance. No notice 
 to him of that invalidity, or that it was so regarded by the purchaser, was given. 
 On the contrary, the vendor shared in his ignorance or mistake of the law, and 
 had promised performance of the duty primary upon him in legal contemplation — 
 the removal of the incumbrance. It would be a reproach to the law if the vendor 
 could resist the claim of the purchaser.'' 
 
 ' See cases cited, ante, p. ; 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 representation 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. 
 
 3 Fane v. Fane, L. R., 20 Eq. Cas. 698. 
 
820 MARKETABLE TITLE TO EEAL ESTATE. 
 
 relief. And, generally, it may be said that if, in a case of mistake 
 or ignorance of law affecting the title on the part of the purchaser, 
 there are circumstances indicating fraud, imposition, deceit or 
 unconscionable advantage on the part of the vendor, a court of 
 equity will gladly lay hold of them as an escape from the arbitrary 
 maxim, ignorantia legis neminem excusat} 
 
 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 purchaser seeks to have the contract 
 reformed. Its importance, where the rescission of an executed con- 
 tract is sought, is lessened by the consideration that if the vendor, 
 knowing of matters of law or fact rendering the title worthless, 
 allowed the vendee to proceed without communicating such knowl- 
 edge, he would, as a general rule, be deemed guilty of fraud, and 
 upon that ground alone the vendee would be relieved. 
 
 ' 1 Beacli Mod. Eq. Jur. § 36; 1 Story Eq. Jur. (IStli ed.) § 133; Bispham Eq. 
 Princ. (3d ed.) § 185. 
 
INDEX, 
 
 [references are to pages.] 
 
 Abatement of purchase money. 
 
 (See Purchase Money, Compknsa- 
 TioN FOB. Defects, Specific Pbk- 
 
 FORMANCE.) 
 
 Absence. 
 
 title as dependent on long-continued, 
 of party in interest, 70B 
 
 Abstract of title. 
 
 may be supplemented by written evi- 
 dences 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, 170 
 objections apparent from the public 
 
 records, 175 
 objections arising from matters in 
 pais, 179 
 
 Acceptance of grant. 
 
 purchaser is not estopped by, 523 
 
 Acceptance of title. (See Waiver of 
 Objectioks.) 
 
 Accident. (See Mistake.) 
 
 Acknowledgment of deeds. 
 
 acknowledgment, necessity for, 55 
 
 defective certificate makes title 
 doubtful, 56, 719 
 examples, 720 
 
 statutory form should be literally 
 followed, 56 
 
 veoue of certificate, necessity for, 57 
 
 name of certifying officer should 
 appear, 57 
 
 purchaser cannot take acknowledg- 
 ment, 58 
 
 interested party cannot take lacknowl- 
 edgment, 58 
 
 official designation of certifying offi- 
 cer, 58, 59 
 
 certificate by de facto officer is v^lid, 
 59 
 
 name of grantor should appear in 
 certificate, 60 
 
 acknowledgment by officers and 
 fiduciaries, 61 
 
 Acknowledgment of deeds — Con. 
 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 appear, 
 
 63 
 privy examination of wife must 
 
 appear, 64 
 must recite explanation of contents of 
 
 deed, 65 
 must recite declaration that act was 
 
 voluntary, 66 
 wish not to retract, 67 
 certificate should contain recognition 
 
 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's 
 
 seal, 69 
 surplusage will not avoid certificate, 
 
 70 
 clerical mistakes, when immaterial, 70 
 certificate cannot be amended after 
 
 delivery, 73 
 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, 826 
 
 Action. 
 
 against vendor for breach of contract, 
 11, 18 
 for deceit, 3, 233 
 on covenants for title, 253 
 to recover back purchase money, 
 
 554, 558 
 to compel specific performance, 456 
 to rescind contract, 656 
 circuity of, avoided by estoppel, 501, 
 513 
 and by recoupment, 482 
 
 Acts of ownership. (See Waiver of 
 Objections.) 
 not necessarily a waiver of objection 
 to title. 189 
 
822 
 
 INDEX. 
 [references are to pages.] 
 
 Acts of sovereignty. 
 
 vendor cannot be required to covenant 
 
 against, 153 
 constitute no breach of warranty, 339 
 
 Actual eviction. (See Eviction.) 
 
 Actual seisin. 
 
 though wrongful, supports covenant 
 
 of seisin in certain States, 254 
 dissent from this doctrine, 255 
 
 Administrators. (See Executors.) 
 
 Adverse claimant. (See Eviction, 
 Waeranty.) 
 
 entry of, constitutes breach of war- 
 ranty, when, 343 
 
 surrender of possession to, 348 
 
 hostile assertion of title by, necessary 
 to constructive eviction, 351, 356 
 
 existence of, makes title unmarket- 
 able, 695 
 
 Adverse possession. 
 
 constitutes breach of covenant of war- 
 ranty, 345 
 
 title by, marketable, 699. (See Doubt- 
 ful Title.) 
 
 title not marketable where premises 
 held adversely, 695 
 
 Adverse suit. (See Covenant op 
 Wakeantt.) 
 covenantor must be notified of, 402 
 
 Affirmance, 
 of contract, remedies in, 3 
 by action at law, 11 
 by liroceedings in equity, 456 
 
 After-acquired title. (See Estoppel.) 
 enures to benefit of grantee, 493 
 grantee may be required to take, 507 
 
 Agent. 
 
 may insert in agreement provisions as 
 
 to the title, 82 
 usual covenants may be required 
 
 from, 154 
 fraud of, binds principal, 235 
 
 but principal not liable to action of 
 
 damages, 235 
 agent is personally liable in dam- 
 ages, 236 
 and criminally, in some Jurisdic- 
 tions, 236 
 
 Agreements respecting the title. 
 
 implied agreements,. 20 
 
 good title implied in every sale, 
 20 
 
 effect of contract silent as to quan- 
 tity of interest, 20 
 
 contract to sell means that fee sim- 
 ple is sold, 21 
 
 effect of unrestricted agreement to 
 sell, 21 
 
 Agreements respecting title — Con. 
 implication of good title rebutted 
 
 by notice of defect, 21 
 no implication of good title in min- 
 isterial sales, 22 
 except in sale by assignee in 
 bankruptcy, 134 
 sale of lease implies good title in 
 
 landlord, 22 
 agreement to quitclaim will not em- 
 brace after-acquired interest, 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 " satis- 
 factory," 690 
 terms and condition of sale, 25 
 verbal declarations of auctioneer, 25 
 agreement to make ' ' good and sufti- 
 cient deed," 32 
 means that deed must convey in- 
 defeasible 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 the title 
 
 such as it is, 38 
 but vendor must have some 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 per- 
 sonally liable to lienor, 38 
 agreement that lien shall be de- 
 ducted from purchase monev. 
 39 
 E.nglish rules respecting the contract 
 26 
 provisions dispensing with market- 
 able title, must be clear, 28 
 purchaser bound by agreement to 
 take doubtful title, 28 
 
INDEX. 
 
 82a 
 
 [references are to pages.] 
 
 Agreements respecting title — Con. 
 
 common conditions of sxle, 25, 27 
 
 can purchaser show aliunde, that 
 title is bad? 39 
 
 how conditions construed, 28 
 
 doubtful conditions construed in 
 favor of purchaser, 30 
 
 defects should be stated in the par- 
 ticulars, 30 
 
 bidding without objection to con- 
 ditions, 30 
 
 stipulation that sale shall be void 
 if title defective, 81 
 
 declarations of auctioneer, when 
 admissible, 31 
 
 discrepancy between particulars and 
 deed referred to, 32 
 executory agreements merged in deed 
 
 and covenants. (See Mbugbr.) 
 mutual agreements to rescind, 543 
 (See Rescission.) 
 
 not within Statute of Frauds, 552 
 specific jDerformance of agreements, 
 
 456 
 special agreements as to the title, 689 
 
 Alien. 
 
 conveyance on behalf of. without his 
 request, title held marketable, 727, n 
 
 Amendment. 
 
 of certificate of acknowledgment, 73 
 
 Annexation. 
 
 of certificate of acknowledgment to 
 deed, 61 
 
 Application ot purchase money. 
 
 duty to see to, makes title immarkct- 
 able, 735 
 
 duty to see to, to be noted in examin- 
 ing title, 173 
 
 Apportionment. 
 
 of damages on breach of covenant as 
 to part, 389 
 
 Assets, 
 heir without, not bound by ancestor's 
 warranty, 333 
 
 Assignee, 
 in bankruptcy, covenants by, 151 
 caveat eiraptor applies to sales by, 134 
 exception in New York, 134 
 of covenants for title. (See the 
 several covenants.) 
 not bound by equities of which he 
 had no notice, 370 
 may sue in his own name, when, 361 
 of purchase-money note — caution 
 with respect to rights of, 486 
 
 Assumpsit. 
 
 when may be brought by purchaser 
 on failure of title, 11, 13, 558 
 
 attacking vendor's title in action of, 
 441 
 
 Assumpsit — Continued. 
 
 objection that question of title can- 
 not be determined in, contro- 
 verted, 443 
 proper action to recover back pur- 
 chase money, 558 
 but cannot be" maintained after con- 
 tract has been been executed, 644 
 
 Assurance. (See Fukthbr Asbukanoe.) 
 
 Attachment. 
 
 should be noted in examining title,, 
 177 
 must be docketed to bind purchaser,, 
 177 
 
 no breach of covenant against incum- 
 brances, when, 388 
 
 is an objection to title, when, 288 
 
 Attestation of deed. 
 necessity for, in some States, 55 
 subscribing witness should be compe- 
 tent, 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, 739 
 
 Auctioneer. 
 
 verbal declarations as to title admissi- 
 ble, when, 35, 31 
 
 Bankruptcy. 
 
 caveat emptor applies to sale by 
 
 assignee, when, 134 
 covenants for title by bankrupt, 153 
 estoppel of bankrupt, 515 
 title as dependent on act of, 679 n. , 694 
 
 Bargain, Loss of. (See Damages, 
 Measuke of.) 
 
 Benefit. 
 
 of covenants, who entitled to (See 
 Wakeanty.) 
 
 Bond for title. (See Title Bond.) 
 
 Breach. 
 
 of covenant for seisin, 857 
 against incumbrances, 385 
 for further assurance, 417 
 for qujet enjoyment and of war- 
 ranty, 336 
 how assigned in pleading, 411 
 of contract, as ground for damages, 11 
 for rescission, 548 
 
 Building restrictions. 
 
 constitute breach of covenant against, 
 incumbrances, 295 
 I render title unmarketable, 780 
 
824 
 
 [references are to pages.] 
 
 Burden of proof. 
 
 in action for breach of contract, 16 
 covenant of seisin, 273 
 covenant against incumbrances, 317 
 covenant of warranty, 413 
 by vendor for specific performance, 
 
 660 
 by purchaser to recover back pur- 
 chase money, 564, 670 
 to rescind contract, 670 
 
 Caveat emptor. 
 
 meaning and application of this 
 
 maxim, 6, 7.5 
 does not apply between lessor and 
 
 lessee, 888 
 application to judicial sales, 7() 
 
 what is a judicial sale, 78 
 
 when objections to title must be 
 made, 77 
 
 effect of confirmation of the sale. 77 
 
 effect of bid with notice of defect, 
 79 
 
 when maxim does not apjjly to 
 judicial sale, 81 
 
 distinction between sale of " land" 
 and sale of " estate," 86 
 
 comments upon the maxim, 85 
 
 docs not apply in oases of fraud, 86 
 
 several kinds of fraud affecting 
 judicial sale, 87 
 
 fraud will not excuse negligent 
 purchaser, 87 
 
 errors and irregularities in the pro- 
 ceedings, 88 
 
 no objection to title thereunder, 88 
 
 unless the error goes to the juris- 
 diction, 90 
 
 what is " collateral attack," 95 
 
 respects in which jurisdiction may 
 be wanting, 96, 98 
 
 existence of jurisdictional facts 
 presumed, 99 
 
 extraneous evidence inadmissible, 
 99 
 
 record cannot be contradicted, 100 
 
 presumption of jurisdiction does 
 not apply to inferior courts, 101 
 
 when does want of Jurisdiction 
 appear from record? i03 
 
 title as affected by matters occur- 
 ring after jurisdiction has at- 
 tached, 104 
 
 fraud as ground for collateral at- 
 tack, 105 
 
 fraud in procuration of judgment, 
 105 
 
 fraud in making judicial sale, 106 
 
 purchase by officer invalid, 107 
 application to sales by executors and 
 administrators. 
 
 distinction between sales under a 
 will and those under court orders, 
 106 
 
 Caveat emptor — Continued. 
 
 purchase by personal representative 
 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 per- 
 formance, 113 
 
 want of jurisdiction, errors and 
 irregularities, 114 
 application to sales bj' sheriffs, tax 
 oflBcers, etc., 118 
 
 maxim strictly applies to sheriffs' 
 sales, 118 
 
 purchaser cannot recover from exe- 
 cution plaintiff, 133 
 
 when purchaser relieved, 133 
 
 effect of fraud by sheriff and execu- 
 tion plaintiff, 135 
 
 title under void judgment, 136 
 
 title under void execution sale, 139 
 
 maxim strictly applies to tax sales, 
 133 
 
 and to sales by trustees, assignc^es, 
 etc., 133 
 subrogation of purchaser at judicial 
 
 . sale. 
 
 where sale is void, 134 
 
 where sale is valid, 140 
 
 fraud of purchaser destroys right 
 of, 141 
 
 Certificate of acknowledgraent, re- 
 quisites. (See Acknowledgment.) 
 
 Cestui que trust. 
 
 covenants for title may be required 
 from, l.'j4 
 
 Champerty. 
 
 as connected with doctrine of actual 
 seisin, 355 
 
 does not invalidate covenants for title, 
 358 
 
 does not prevent enuring of after- 
 acquired title, when, 500 
 
 Chose in action. 
 
 right to damages for breach of cove- 
 nant is, 360 
 not assignable at common law, 363 
 but assignment enforced in equity, 267 
 
 Circuity of action. 
 
 avoided by doctrine of estoppel and 
 after -acquired estate, 501, 513 
 by detention of purchase money on 
 breach of covenants, 433, 611 
 
 Collateral attack. (See Caat^at 
 
 E.MPTOE.) 
 
 on judgment, as affecting question of 
 
 title. 95 
 definition of this term, 96 
 
INDEX 
 
 [repkbences are to pages.] 
 
 825 
 
 Common conditions. 
 
 ot sale, what are, 25, 27 
 
 Compensation for defects of title. 
 
 (See Purchase Monby, Damages.) 
 purchaser may accept title with. (See 
 
 Specific Pbkfokmance.) 
 vendor may require purchaser to take 
 title with, when, 769 
 
 but only where part lost is not 
 material, 769 
 
 and only where lien is inconsider- 
 able, 769 
 
 equity will direct an inquiry on 
 these points, 770 
 
 purchase with notice of defect, 771 
 
 contract should provide for abate- 
 ment, 771 
 
 compensation decreed according to 
 relative value, 772 
 
 remedy of vendor is exclusively in 
 equity, 772 
 
 rule does not apply where objec- 
 tion goes to title to whole, 773 
 
 contract cannot be rescinded in 
 part, 772 
 
 rule where title to one of several 
 lots is bad, 773 
 
 rule does not apply where title fails 
 to considerable portion, 773 
 
 or to part indispensable to enjoy- 
 ment of residue, 774 
 
 or where no means for estimating 
 compensation accurately, 775 
 
 purchaser cannot be compelled to 
 accept a lesser estate, 775 
 
 nor to accept an undivided moiety, 
 776 
 
 relief denied vendor if guilty of 
 fraud, 776 
 
 and where he has evicted purchaser, 
 776 
 
 purchaser cannot be compelled to 
 accept indemnity, 776 
 
 Concealment. (See Fraud.) 
 
 of defects of title fraudulent, when, 232 
 
 Concurrent remedies. 
 
 various, on failure of title, summa- 
 rized, 8 
 
 Condemnation of lands. 
 
 in eminent domain, no breach of war- 
 ranty, 840 
 
 Conditions. 
 
 of sale, 25, 27 
 
 performance of, as affecting title, 698 
 
 Confirmation of sale. (See Caveat 
 Emptor. 
 purchaser cannot object to title 
 after, 77 
 exceptions to this rule, 81 
 comments upon the rule, 83 
 
 lOi 
 
 Consideration. 
 
 of deed may be shown, 382 
 expressed, not conclusive, 383 
 partial failure of, as defense to action 
 
 for purchase money, 438 
 want of, no defense to action on war- 
 ranty, 325 
 of sealed instrument may be inquired 
 into, 573 
 
 Consideration money. (See Damages, 
 Measure of.) 
 usually measure of damages on breach 
 
 of contract, 211 
 and on breach of covenants, 372 
 that expressed may be contradicted, 
 
 383 
 if none expressed, may be shown, 384 
 (See Interest and Purchase Money.) 
 
 Construction. 
 
 title as dependent on, of deed or will, 
 678, 732 
 
 Constructive eviction. (See War- 
 ranty, Covenant of.) 
 inability to get possession of premises, 
 
 345 
 compulsory surrender of premises, 348 
 purcliase of outstanding title, 353 
 
 Constructive notice, 
 of defective title from possession of 
 stranger, 181 
 from the public records, 198, 340, 
 570, 686 
 
 Contingent remainder. 
 
 title dependent on, not marketable, 698 
 will not pass by quit claim, when, 
 519, 520 
 
 Continuing breach, Doctrine of. 
 
 of covenant for seisin, 364 
 
 Contract. (See Agreement.) 
 executory and executed, 3 
 executed, cannot be rescinded, when, 
 
 6, 8, 599, 798 
 affirmance of, 3. (See Analysis, 
 
 p. VII.) 
 action for breach of, 11 
 implied and express, as to title, 30, 33 
 usual provisions of, 23 
 to make " good and sufHcient deed," 32 
 measure of damages for breach of, 309 
 specific performance of, 456 
 merger of executory, in deed, 428, 624 
 rescission of, 548. (See Analysis, 
 
 p. VII.) 
 
 Conveyance. (See Deed.) 
 tendered by vendor, sufBciency of, 40 
 
 Coparceners. 
 
 covenants implied in partition be- 
 tween, 331 
 
826 
 
 JXDEX. 
 [RKKf:Rf:.V';K'-( ARE TO PAOES.] 
 
 Corporation. 
 
 how deed of, should be executed, 48, 
 49, n 
 how a<.-knowl(d;_'-(;il, 61 
 title as dependent on devise to, 72^1, n 
 
 Costs. 
 
 of oxiunmnu: title may t<e re'-overed, 
 
 14, 2i;i. .Vl::; 
 rei-'iverable as damage^, when, 219, 
 
 :^!j';, :;!)!;, .Ofja 
 of perfr-ctirjf the title, 74.0 
 of reference to master in chancery, 
 
 7fi.O 
 
 Counsel. 
 
 fees of, a.s element of damages, 219, 
 399 
 
 opinion of, not admissible on qu(;s- ^ 
 tion of good title, f;7*) I 
 
 title to be satisfactory to pur- 
 chaser's, f;9i) , 
 
 Covenant, Action of. 
 
 when mu^t be bro!i;,'l.t, 11 
 
 Covenantor. 
 
 may exc-pt incumbrance or particu- 
 lar cliiims from covenant. 2"'i 
 
 tortious acts of, are breach of war- 
 ranty, '^/^H I 
 
 noiiceto, of .suit of adverse claimjint, \ 
 4^12 I 
 
 Covenants for title. ', 
 
 necessity for, 1 i'4 I 
 
 may be required notwithstanding I 
 
 consent t I take defective title, o7 
 what are the u^ual covenants for 
 
 title. 14« 
 form of the usual covenants, 143, n 
 right to full or L^i-neral covenants, 
 
 14.-J, 117 
 from jCTantors in their o^vn ri^ht, 147 
 from nominal party to deed, lol 
 from rfjortga;.'ors. 1.72 
 from fiduciary grantors. IVi 
 from ministerial grantors. lo7 
 specific performance of. +'^0 
 operati (M by way of estoppel ("See 
 
 »TOP£»ET-.) 
 
 detention of j>urchase monev on 
 brr-ach of, 420 
 'See Plkch.-eMosev, Detest;on' 
 
 OF.) 
 
 where no covenants for title, fjl fj 
 see the several covenants for title for 
 assignability 
 wliat coii.stilutc-s br(-acli 
 riKii-iir- of daniiiges 
 when implied 
 
 persons bound and benefited 
 qualifications and restrictions 
 
 Creditors. 
 ndoTmnti 111 of deed as ri^raiust. ."Jlt 
 
 2)9 
 
 220 
 
 222 
 
 Damages, 
 when action for, on failure of title 
 
 improper, 1.7 
 when recoverable in ecjuity, 4'):; 
 may be recovered at law for, 
 
 breach of cfmtract to convey g-o ,d 
 
 title, 11, 209 
 but not when title is merely doubt- 
 ful, 10 
 fraud and deceit in rc-jicit to the 
 
 title, 2::;2 
 breach of covenants for title, 209, 
 300. 372 
 refM'jiipment. 4;i2 
 
 Damages, Measure of. 
 
 what are nominal damages, 20t( 
 
 when too remote, 210 
 
 where vendor acts in good faith, 211 
 
 none for loss of bargain. 21 1 
 fJureau v. Ihornhill, Hopkias v. 
 
 L.-e, 211 
 barter contracts, 217 
 expenses of examining title, etc., 
 intere-,t as eli-inent of damages, 
 ri-nt, and profits as set-off, 220 
 noallovvance for imjiroveraents, 
 
 where vendor acts in bad faith, 223 
 
 where vendor expects to obtain the 
 title, 22.7 
 
 where vendor refuses to remove ob- 
 jection, 228 
 
 liquidated damages, 229 
 
 for breach of covenants for title-, -'ce 
 the several covi.-nants.; 
 
 Date. 
 
 not necessary to validity of d'-ed, 44 
 of certificate of acknowledgment, 08 
 
 Death. 
 
 title as dependent on presumption of. 
 700 
 
 Decadent. 
 
 title as dependent on invjlvencv of, 
 720 
 intestacy of, 720 
 
 Deceit. 'See Fkat!).i 
 action of , when it lies, 233 
 is coneiirrent with action forbrea' h 
 of contract, 13 
 
 Declaration. ' -^ee Pj.kavtsg, \)yj. kit.) 
 of auctioneer as to title, 27, 31 
 wliat should set forth. 
 in action on co\enant for seisin, 
 276 
 covenant at'ainst incumbrances^ 
 
 317 
 covenant of warranty, 41 1 
 for bre^eli of contract, 14, 10 
 for deceit. 2.71 
 
 to recover back X'I'T' h.i* ruouey 
 2.7.7 
 
INDEX. 
 
 827 
 
 [refkeencbs are to pages.] 
 
 Deed. 
 
 tendered by vendor, sufficiency of, 40 
 
 vendor must prepare and tender, 41 
 
 must be acknowledged and ready for 
 record, 41 
 
 must contain covenants to whicb pur- 
 cliaser entitled, 41 
 
 essential requisites o£ tjie conveyance, 
 43 
 
 informal or irregular, may be re- 
 jected, 43 
 
 may be corrected and re-acknowl- 
 edged, 44 
 
 purchaser must accept, correcting er- 
 rors, 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 granting 
 clause, 45 
 
 void if grantee uncertain, 45 
 
 to fictitious person is void, 45 
 
 to partners, should be to them as indi- 
 viduals, 45 
 
 names of parties should be correctly 
 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 
 
 executed by attorney , may be rejected, 
 when, 48 
 
 how executed by attorney or corpora- 
 tion, 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 beidentified, 51 
 examples in which, held void, 53 
 inadequate description no notice to 
 
 purchaser, 53 
 of "assets" will not pass lands, 53 
 
 interest conveyed should be correctly 
 described, 53 
 
 Deed — Continued. 
 
 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 gran- 
 tor, 54 
 
 seal should be recognized in body of, 55 
 
 attestation of, by subscribing witness, 
 55. (See Acknowlbdgmbnt.) 
 
 should not contain unauthorized re- 
 strictions 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 from face 
 of, 170 
 
 subsequent, is breach of wan'anty in 
 prior, 411 
 
 when passes after-acquired title, 493 
 
 when reformed in equity, 536 
 
 where void, purchase money mav be 
 detained, 621, 646 
 
 title as dependent on construction of, 
 722 
 as dependent on defective, 719 
 
 when rescinded, 798 
 
 tender of purchase money and demand 
 for, 199 
 
 Defeasance. 
 
 what is a, 176 
 
 records should be searched for, 176 
 
 Defective conveyance. (See Kep- 
 
 OnHATION.) 
 
 purchaser may reject, 40. (See Deed.) 
 title as dependent on, 719 
 
 Defective title. (See Doubtful 
 
 Title.) 
 
 classification of various sources of, 170 
 
 effect of purchase with notice of, 194 
 
 rescission of contract in cases of, 548, 
 
 554, 656 
 detention of purchase money where. 
 
 (See Purchase Money.) 
 notice of, no bar to recovery on war- 
 ranty, 334 
 concealment of, a fraud, 236 
 at judicial and ministerial sales. (See 
 Caveat Emptor.) 
 
 Defenses of purchaser. 
 
 to action for damages, 18 
 
 suit for specific performance, 659 
 action to recover purchase money, 
 
 420, 554 
 
 Delay. 
 
 in suit for specific performance, 463 
 of vendor in performing contract, 758 
 in objecting to title, 190 
 in objecting to vendor's fraud, 193 
 
828 
 
 [references are to pages.] 
 
 Demand for deed. (See Tender of 
 Perforjiais-cb.) 
 as condition precedent to action for 
 
 damages, 199 
 wlien need not be made, 301 
 
 Deposit. 
 
 may be recovered if title is defective, 
 558 
 
 Descent. 
 
 title as dependent on question of, 693, 
 694 
 
 Description. 
 
 of premises in deed, 50. (See Deed, 
 
 Sufficiency op.) 
 title as dependent on, 730, n 
 
 Detention of purchase money. (See 
 Purchase Money, Detention op.) 
 
 Devisee. 
 
 liability for damages on warranty of 
 
 devisor, 334 
 of covenantee entitled to benefit of 
 
 covenant, 336 
 title as dependent on devise, 723, n., 
 
 735, n 
 
 Disturbance. 
 
 tortious, no breach of warranty, 336 
 unless by covenantor himself, 338 
 
 Doubtful title. 
 
 question of, may be made in a court 
 
 of law, 16 
 purchaser never required to accept, 
 
 673 
 meaning of the expression, 673 
 and of the expression ' ' marketable 
 
 title," 673 
 mathematical certainty of perfect title 
 
 impos.sib]e, 673 
 doubts must not be captious or frivo- 
 lous, 674 
 may depend on question of law or of 
 
 fact, 676 
 this objection not usually made by 
 
 lessees, 676 
 question is for the court and not for 
 
 the jury, 676 
 opinions of counsel not admissible on 
 
 question of, 676 
 cases in which title will be held doubt- 
 ful, 677 
 probability of litigation against 
 
 purchaser, 677 
 decision adverse to title which court 
 
 thinks wrong, 678 
 decision in favor of title which court 
 
 thinks wrong, 678 
 doubtful construction of instru- 
 ment, 678 
 where court would instruct jury to 
 find in favor of a fact invalidating 
 the title, 679 
 
 Doubtful title — Continued. 
 
 where the circumstances raise a 
 presumption of a fact fatal to the 
 title, 679 
 cases in which title will be held not 
 doubtful, 
 where there is no probability of 
 litigation against the purchaser, 
 679 
 where there has been a decision 
 against the title which the court 
 holds wrong, 680 
 where the doubt depends on the 
 
 general law of the land, 680 
 or on a rule of construction unaf- 
 fected by context of instrument, 
 680 
 or on a conclusive presumption of 
 
 fact, 680 
 
 or on mere suspicion of mala fides, 
 
 question of doubtful title m.ay be 
 
 made at law as well as in equity, 
 
 683 
 
 judgment on question of title does 
 
 not bind strangers, 686 
 this fact a strong ground of objection 
 
 to title. 687 
 in some States vendor permitted to 
 
 bring in parties in interest, 6S8 
 special agreements respecting the 
 
 title, 689 
 effect of agreement for "good title 
 
 of recordr" 689 
 effect of agreement for " marketable " 
 title, 690 
 that title shall be satisfactory to 
 
 purchaser, 690 
 that title shall be satisfactory to 
 
 counsel, 691 
 mere expression of dissatisfaction 
 insufficient, 693 
 necessity of parol evidence to remove 
 doubts renders title unmarket- 
 able, 692 
 but title not necessarily doubtful 
 because dependent on facts rest- 
 ing in parol, 693 
 sale implies a contract that title 
 shall be deducible of record, 693 
 court may inquire into facts on 
 which objection is rested, 694 
 purchaser cannot be compelled to take 
 
 equitable title, 695 
 nor title controverted in good faith by 
 
 adverse claimant, 695 
 mere claim without color of title, no 
 
 valid obj ection to title, 696 
 title in litigation is unmarketable, 697 
 but probability of litigation not 
 
 always a valid objection, 697 
 defeasibility of estate a sufficient ob- 
 jection, 698 
 title perfected by Statute of Limita- 
 tions is marketable, 699 
 
INDEX. 
 
 829 
 
 [references are to pages.] 
 
 Doubtful title — Continued. 
 
 unless facts constituting the bar are 
 
 in dispute, 703 
 possession must have been adverse, 
 notorious, hostile and uninter- 
 rupted, 703 
 with means of establishing that fact 
 
 if disputed in the future, 703 
 possession of i^urchaser is prolonga- 
 tion of that of vendor, 703 
 purchaser may reject, when con- 
 tract provides for " good title of 
 record," 703 
 adverse possession of mere tres- 
 passer insufficient, 703 
 time suflScieut to bar disabilities 
 
 must have elapsed, 704 
 burden on vendor to show prima 
 
 facie bar, 705 
 and on purchaser to show facts re- 
 moving the bar, 705 
 conclusive presumption from lapse of 
 time, 705 
 title as affected by other presump- 
 tions, 706 
 title dependent on question of notice 
 
 is unmarketable, 708 
 burden is on vendor to show title 
 prima facie free from doubt, 709 
 after which burden shifts to pur 
 chaser to show doubts, 709 
 illustrations of foregoing principles, 
 709 
 general observations, 710 
 error and irregularities in judicial 
 
 proceedings, 711 
 sales of the estates of persons un- 
 der disabilities, 714 
 want of parties to suits, 716 
 defective conveyances and acknowl- 
 edgments, 719 
 imperfect registration, 719 
 construction of deeds, wills, etc., 722 
 competency o£ parties to deeds, 724 
 title as dependent on intestacy, 726 
 and on insolvency of intestate, 727 
 incumbiances which make title un- 
 marketable, 728 
 admitted incumbrances, 729 
 easements, rights of way, build- 
 ing restrictions, etc., 780 
 disputed incumbrances, 733 
 where doubts must be removed 
 
 by parol evidence, 733 
 lis pendens, 733 
 
 existence and enforcibility of in- 
 cumbrance, 734 
 duty to see to application of pur- 
 chase money, 735 
 Improbability that incumbrance 
 
 will be enforced, 736 
 apparently unsatisfied incum- 
 brances, 787 
 authority to enter satisfaction, 739 
 
 Dower. 
 
 right of, no breach of covenant for 
 seisin, 259 
 
 inchoate right of, is breach of cove- 
 nant against incumbrances, 294 
 renders title unmarketable, 731 
 purchaser may have indemnity 
 against, semble, 472, 477, 773 
 
 purchaser should inquire as to exist- 
 ence of, 183 
 
 assignment of, is breach of warranty, 
 344 
 
 Easements. 
 
 should be inquired for by purchaser's 
 
 counsel, 182 
 no breach of covenant for seisin, 359 
 constitute breach of covenant against 
 incumbrances, 294 
 unless notorious and visible to pur- 
 chaser, 298 
 conflict of authority on this point, 
 300 
 in granted premises a breach of war- 
 ranty, 358 
 so, also, deprivation of, 358 
 measure of damages for loss of, 
 392 
 render title unmarketable, 730 
 
 Ejectment. 
 
 notice of, to covenantor and request 
 
 to defend, 403 
 request to prosecute, 406 
 by vendor against vendee, when, 587 
 
 Election of remedies, 
 by purchaser, 3. 13, 233 
 is conclusive, when made, 14 
 
 Eminent domain. 
 
 exercise of, no breach of warranty, 
 339 
 
 purchaser charged with notice of pro- 
 ceedings, 179 
 
 as breach of covenant against incum- 
 brances, 299, n 
 
 Equitable estate. 
 
 owner of, not entitled to benefit of 
 covenants, 360 
 
 purchaser cannot be required to ac- 
 cept, 695 
 
 Equities. 
 
 doctrine of purchaser without notice 
 
 applies only to, 179 
 no application where legal title is 
 
 outstanding, 179 
 assignee of covenant not bound by, 
 
 between original parties, 370 
 
 Equity. (See Specific Performance, 
 Rescission, Reformation, In- 
 junction.) 
 equitable remedies in affirmance of 
 contract, 456 
 
830 
 
 INDEX. 
 
 [references are to pages.] 
 
 Equity — Continued. 
 
 in rescission of contract, 656 
 will not compel purchaser to take 
 
 doubtful title, 673 
 equitable defenses allowed at law, 
 
 433 
 measure of damages in, 466 
 quia timet, jurisdiction of, 783 
 
 Error of law. 
 
 title under judicial sale not affected 
 
 by, 88 
 renders title doubtful when, 678, 711 
 
 Estate. 
 
 to be considered in examination of 
 
 title, 171, 174 
 after-acquired, enures to grantee, 493. 
 
 (See Estoppel.) 
 purchaser not required to take equita- 
 ble, 695 
 nor defeasible, 698 
 covenant of seisin is broken if, is 
 defeasible, 386 
 
 Estate for life. 
 
 measiire of damages where grantee 
 
 gets only an, 273, 391 
 outstanding, is breach of covenant 
 against incumbrances, 294 
 
 Estate for years. 
 
 outstanding, is breach of covenant 
 against incumbrances, 293 
 but not of covenant for seisin, 
 259 
 measure of damages on eviction from, 
 386 
 
 Estoppel. 
 
 grantor estopped to assert after- 
 acquired title, 493 
 
 as between lessor and lessee, 494 
 
 as between execution debtor and 
 purchaser under execution, 495 
 
 where grantor pays off lien assumed 
 by grantee, 495 
 
 where title of grantor disseising 
 grantee, is cured by time, 495 
 
 •estoppel binds heirs and devisees, 
 495 
 but only to the extent of assets re- 
 ceived, 495 
 
 heirs not estopped by lineal or col- 
 lateral warranties, 496 
 
 warrantor estopped from setting up 
 resulting trust, 496 
 
 no estoppel where covenants have 
 been extinguished, 496 
 
 no estoppel in cases of fraud by 
 grantee, 497 
 
 tifter-aoquired estate must be held in 
 
 same right, 497 
 estoppels must be mutual, 498 
 
 mortgagor estopped by his warranty, 
 498 
 
 Estoppel — Continued, 
 except in case of purchase-money 
 
 mortgage, 498 
 mortgagor estopped as against a. sub- 
 sequent mortgagee, 499 
 void conveyance operates no estoppel, 
 499 
 as where the deed is champertous, 
 
 499 
 or execxited in fraud of creditors, 
 
 500 
 or imperfectly executed, 500 
 exceptions, 500, 501 
 effect as actual transfer of after- 
 acquired estate, 501 
 subsequent purchaser from grantor 
 not affected, 503, 504 
 contrary rule in some of the States, 
 
 503 
 subsequent purchaser with notice is 
 bound, 506 
 grantee must accept after-acquired 
 estate in lieu of damages, 507 
 unless he has been actually dis- 
 turbed in his possession, 507 
 Mr. Rawle's dissenting view, 508 
 but title must have been acquired 
 before action brought, 510 
 what covenants will pass after- 
 acquired estate, 511 
 any of the covenants unless special 
 
 or limited, 511 
 circuity of action not avoided by 
 
 estoppel, when, 512 
 mere quit claim or release will not 
 
 operate an, 516 
 heir or remainderman conveying by 
 
 quit claim not estopped, 519 
 general covenants will not operate 
 
 an estoppel, when, 519 
 when quit-claim will operate an 
 estoppel, 530 
 Van Rensselaer v. Kearney, 520 
 effect of covenant of non-claim by 
 
 way of estoppel, 522 
 quit claim estops grantor of public 
 
 lands, when, 533 
 fiduciary and ministerial grantors 
 
 not estopped, 523 
 execution debtor not estopped by 
 sheriff's deed, 523 
 grantee not estopped to deny title of 
 grantor, 523 
 but cannot set up adverse title 
 
 against him, 534, 603 
 except where vendor attempts to 
 
 convey public lands, 386, 524 
 or has been guilty of fraud respect- 
 ing the title, 524 
 or where the grantee has been 
 
 evicted, 524 
 or where the contract has been re- 
 scinded, 524 
 resume of principles, 524 
 
INDEX. 
 
 831 
 
 [references are to pages.] 
 
 Eviction. (See Warranty, Covenant i 
 
 OF.) 
 
 not indispensable to purchaser's ac- 
 tion for damages, 17 
 
 not necessary to breacli of covenant 
 for seisin, 254 
 
 actual and constructive, 341, 345 
 
 no compulsory acceptance of after- 
 acquired title in case of, 508 
 
 detention of purchase money as de- 
 pendent on, 
 where contract is exeoutorv, 573 
 executed, 430, 600, 783 
 
 Evidence. 
 
 parol , of exception from covenants, 383 
 
 of value of warranted premises con- 
 sideration money is, 383 
 
 of paramount title in evictor, notice 
 dispenses with, 403 
 
 parol, to show mistake in deed, 538 
 must be clear and positive, 588 
 to remove doubts as to title, 693 
 
 Examination of title. 
 
 should not be left to incompetent per- 
 son, 160 
 
 time allowed for, 165 
 
 classification of inquiries to be made, 
 170 
 
 expenses of, '319, 563 
 
 consequences of omission of, 333, 340, 
 376 
 
 Exchange. 
 
 covenants implied in, 331 
 measure of damages for breach of 
 contract to, 217 
 
 Executed and executory contracts. 
 what are, 3 
 
 as regards detention of purchase 
 money, 431, 554. (See Contract.) 
 
 Execution. 
 
 of deed by corporation or agent, 48 
 caveat emptm' applies to sale under, 57. 
 (See Caveat Emptor.) 
 
 Executors and administrators. 
 
 caveat emptor applies to sales by, 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, 335 
 entitled to benefit of, when, 335 
 
 Expenses. 
 
 of examining title may be recovered, 
 
 319 563 
 of nerfecting the title, 385, 402 
 of defending the title, 330, 396, 399 
 
 Express contract. (See Agreement, 
 Contract.) 
 
 Extinguishment of covenants. 
 
 by reconveyance to covenantor, 371 
 
 Fact. 
 
 title as dependent on question of, 676, 
 
 679, 681 
 mistake of, as ground for reforma- 
 tion of deed, 539 
 for rescission of executed contract, 
 803 
 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, liability 
 of vendor for, 219, 563 
 in defending title, 330, 896, 899 
 
 Fee simple. 
 
 estate sold presumed to be a, 31 
 
 Fence. 
 
 dut-^ to maintain, is an incumbrance 
 
 295 
 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, 174, 181 
 
 registration does not protect pur- 
 chaser, 181 
 Fraud, 
 as ground for collateral attack, 105 
 of vendor, effect on purchaser's rights, 
 
 383 
 purchaser may elect to rescind or 
 
 affirm, 233 
 fraud without injury gives no action, 
 
 234 
 fraud of agent binds principal, 335. 
 
 (See Agent.) 
 what constitutes fraud respecting the 
 title, 236 
 
 concealment of defects, 336 
 
 defects apparent of record, 340 
 
 willful or careless assertions, 340 
 
 existence of fraudulent intent, 347 
 
 statements of opinion, 348 
 facts showing fraud must be alleged, 
 
 251 
 burden of proof is on purchaser, 353 
 fraud not merged in conveyance, 638 
 of vendor bars right to perfect the 
 
 title, 753 
 as affecting title under judicial or 
 
 ministerial sale. (See Caveat 
 
 Emptor.) 
 
832 
 
 INDEX. 
 
 [references are to pages.] 
 
 Fraudulent conveyance. 
 
 title derived under, not marketable, 
 
 682, 708 
 remote purchaser under, charged with 
 
 notice, when, 173 
 will sustain transfer of after-acquired 
 
 title by estoppel, when, 500 
 
 Further assurance, Covenant of. 
 
 form and effect, 416, 417 
 what constitutes breach, 417 
 effect by way of estoppel, 417 
 runs with the land, 418 
 measure of damages for breach, 419 
 
 " Good and sufficient deed." 
 effect of agreement to make, 32 
 
 Good right to convey. (See Seisin.) 
 
 "Grant, bargain and sell." 
 
 covenants implied from these words, 
 256, 279, 329 
 
 Guardian. 
 
 caveat emptor applies to sales by, 134 
 tHle as affected by acts or powers of, 
 715, 716, n 
 in judicial roceedings, 716, n 
 
 Heirs. 
 
 liable on covenants of ancestor, 332 
 entitled to benefit of, when, 256, 335 
 
 word, omitted from deed may be sup- 
 plied, 534, n 
 
 title as dependent on fact of inherit- 
 ance, 673, 692 
 
 Highway. 
 
 no breach of covenant of seisin, 259 
 is breach of covenant against incum- 
 brance, when, 298 
 conflict of authority on this point, 
 300 ^ 
 
 notice of, as affecting right to rescind, 
 196 
 
 Husband and wife. (See Markibd 
 
 WOMBN.) 
 
 Idem sonans. 
 
 cases of. as affecting title, 721 
 
 Implied covenants. 
 
 from words "grant, bargain and sell," 
 
 256, 279, 329 
 in a lease, 330 
 in an exchange, 331 
 in partition, 331 
 none from mere recitals in deed, 333 
 
 Improvements. 
 
 purchaser not allowed damages for 
 loss of, 222, 370, 375, 393 
 except in cases of fraud, 376 
 and sometimes in equity, 668 
 and except in certain States, 379 
 
 I Incapacity. 
 
 of parties, title as dependent on, 171, 
 181, 734 
 
 Incumbrance. (See iNcnMBHANCE, 
 Covenant against, Purchase 
 Money, Detention op.) 
 
 operates no change in title, 2 
 
 definition, 386 
 
 what constitutes, 386, 730 
 
 to be searched for in examining title, 
 177 
 
 concealment of, is fraud, 236, 240 
 
 as ground for detention of purchase 
 money 
 where contract is executory, 566 
 where contract is executed, 420, 446 
 
 cannot be verbally excepted from 
 covenants, 281 
 
 renders title unmarketable, 730 
 
 may be discharged out of purchase 
 mone}', 484 
 
 when subject to compensation or in- 
 demnity, 467, 473, 770, 774 
 
 vendor mav be compelled to remove, 
 460, 491 " 
 
 right of vendor to remove, 741 
 
 subrogation of purchaser to benefit 
 of, 487 
 
 Incumbrance, Covenant against. 
 
 form and effect of, 378 
 implied from certain words, 379 
 distinguished from covenant to dis- 
 charge incumbrance, 379 
 restrictions and exceptions, 380 
 must be expressed in conveyance, 
 
 cannot be shown by parol, 381 
 contrary rule in Indiana, note, 382 
 assumption of mortgage by grantee, 
 
 388 
 effect of conveyance "subject to" 
 
 mortgage, 383 
 what constitutes breach of, 383 
 mere existence of incumbrance 
 
 operates breach, 285 
 definition of term "incumbrance" 
 
 386 
 pecuniary charges or liens, 387 
 notice of same immaterial, 387 
 when taxes constitute breach, 288 
 outstanding estate in the premises, 
 
 *93 
 easements or physical incum- 
 brances, 294 
 building restrictions, 395 
 party walls, 296 
 notice of easement as affectiuff 
 
 breach, 897 
 conflict of decision on this point 
 
 300 
 runs with land for benefit of assignee 
 
 304 '^ ' 
 
 contrary rule in some States, 303 
 
INDEX. 
 
 833 
 
 [references are to pages.] 
 
 Incumbrance — Continued. I 
 
 measure of damages for breacli of, 306 
 nominal, wliere no actual loss, 307 
 judgment a bar to future recovery, 
 
 308, 315 
 where grantee discharges incum- 
 brance, 308 
 amount paid must have been rea- 
 sonable, 310 
 covenantee not bound to redeem, 
 
 311 
 damages cannot exceed purchase 
 
 money and interest, 311 
 damages where incumbrance is 
 permanent, 313 
 of lessee against lessor, 314 
 pleadings must describe incumbrance, 
 315 
 discharge of same must be alleged, 
 316 
 burden of proof is on plaintiff, 317 
 detention of purchase money on 
 breach of, 446 
 
 Indemnity. 
 
 as general rule purchaser cannot de- 
 mand, 471 
 nor be required to accept, 776 
 against inchoate right of dower, 472 
 
 Infant. 
 
 title as dependent on rights of, 714, 
 
 716, n 
 infancy of grantor in chain of title, 181 
 
 Inheritance. 
 
 words of, in deed, supplied, 534, n 
 title, as dependent on question of, 
 183, 693 
 
 Injunction against collection of pur- 
 chase money. 
 
 where the contract is executory. (See 
 Purchase Money of Lands, and 
 534 
 where the contract has been executed, 
 778 
 general observations, 778 
 where the grantor was guilty of 
 fraud, 780 
 injunction granted though no 
 breach of covenants has oc- 
 curred, 780 
 so, also, in case of mistake, 780 
 grantor cannot be forced to action 
 
 for damages, 781 
 grantee setting up fraud as de- 
 fense to action for purchase 
 money cannot have injunction, 
 781 
 want of opportunity to defend at 
 law, 781 
 injunction denied, when defense 
 may be made at law, 781 
 or might have been so made, 783 
 
 105 
 
 Injunction — Continued. 
 
 but granted if defense prevented 
 
 by fraud, accident or mistake, 
 
 783 
 
 and where no opportunity for 
 
 defense, 783 
 
 as in case of enforcement of 
 
 deed of trust, 783 
 or in strict foreclosure of mort- 
 gage, 783 
 and in case of after-discovered 
 facts, 783 
 remedy on covenants must be una- 
 vailing, 783 
 where grantor is insolvent or a non- 
 resident, granted, 783 
 though there has been no breach 
 
 of covenants, 783 
 this upon the principle of quia 
 
 thaet, 783 
 but suit must have been prose- 
 cuted or threatened by adverse 
 claimant, 783 
 except in certain of the States, 794 
 insolvency must be alleged in the 
 
 bill. 785 
 transfer of negotiable securities 
 
 will be enjoined, 786 
 no perpetual injunction where 
 purchaser must accept compen- 
 sation, 786 
 bill must allege clear, outstanding- 
 title, 787 
 and that claimant is prosecuting 
 
 or threatening suit, 787 
 mere doubts as to the title insuf- 
 ficient, 787 
 complainant must confess judg- 
 ment at law, when, 788 
 Injunction granted against trans- 
 feree of note, 788 
 unless purchaser for value, 
 without notice, etc., 788 
 if injunction perpetual, plaintiff 
 should reconvey, 788 
 where estate is incumbered, 788 
 unimportance of non-residence or 
 
 insolvency of grantor, 788 
 grantee cannot pay off lien and 
 
 set it up against grantor, 789 
 incumbrance no ground for re- 
 scission, 790 
 injunction against foreclosure of 
 purchase-money mortgage de- 
 nied, 790 
 except in case of prior incum- 
 brance, 790 
 denied where no covenants for title, 
 791 
 presumptions against grantee in 
 such cases, 791 
 temporary and perpetual injunc- 
 tion, 793 
 effect of perpetual injunction, 793 
 
834 
 
 INDEZ. 
 
 [RBFEBKNCE3 ARE TO PAGES.] 
 
 Injunction — Continued. 
 
 damages on dissolution of in- 
 junction, 792 
 resume, 793 
 where no present right to recover 
 
 substantial damages, 794 
 absolute want of title as ground 
 of injunction, 794 
 
 without regard to non-residency 
 or Insolvency of grantor, 794 
 
 or to threats or prosecution of 
 suit by adverse claimant, 794 
 
 or to reconveyance by grantee, 
 795 
 
 this doctrine enforced in Va. 
 andW. Va., 795 
 
 not recognized elsewhere, 795 
 
 rested upon ground of inade- 
 quacy of remedy at law, 795 
 
 and as protection to purchaser 
 under a trust, 796 
 
 but complaint must show a 
 clear outstanding title, 796 
 
 mere doubts as to title insuffi- 
 cient, 796 
 
 Insolvency. 
 
 of covenantor as ground for detaining 
 purchase money, 783 
 
 Interest. 
 
 as element of damages, 220, 893, 466 
 
 setoff against rents and profits, when, 
 220 
 
 on purchase money while title is be- 
 ing perfected, 766 
 Interlineations. 
 
 to be noted in examining title, 173 
 
 Joint tenants. 
 
 should covenant severally, 153 
 
 Judgments. 
 
 where void, title under, 136 
 
 subrogation to benefit of, 135, 486 
 
 should be noted in examining title, 
 176 
 
 no breach of covenant for seisin, 359 
 
 are breach of covenant against in- 
 cumbrances, 287 
 
 of eviction without dispossession no 
 breach of warranty, 350 
 
 several separate, may be entered on 
 warranty, when, 361 
 
 when conclusive evidence of para- 
 mount title, 403 
 
 apparently unsatisfied render title un- 
 marketable, 737 
 
 must be confessed on application for 
 injunction, 788 
 
 Judicial sales. (See Caveat Emptok.) 
 caveat emptor applies to, 76 
 title as dependent on validity of, 88, 
 711, 714, 716 
 
 Judicial sales — Continued. 
 
 not affected by reversal of decree, 
 89 
 purchaser at, entitled to benefit of 
 covenants, 364 
 
 Jurisdiction. 
 
 of oiHcer taking certificate of ac- 
 knowledgment, 57 
 
 want of, exposes judgment to col- 
 lateral attack, 93 
 
 Jury. 
 fact of notice to defend ejectment, 
 question for, 409 
 
 Laches. 
 
 in objecting to title is waiver of ob- 
 jection, 190 
 exceptions to this rule, 191 
 
 in suing for reformation of deed, 539 
 
 mistakes resulting from, not reliev- 
 able, 537, 810 
 
 of vendor in perfecting title, bars his 
 right, 757 
 
 Land. 
 
 will not pass under word "assets," 
 
 53 
 warranty does not extend to quantity 
 
 of, 326 
 value of, at time of sale is measure of 
 
 damages, 211, 373 
 
 Landlord and tenant. (See Lease.) 
 
 Lease. 
 
 lessor must covenant generally, 153 
 to be noted in examination of title, 175 
 outstanding, is no breach of covenant 
 of seisin, 259 
 but is breach of covenant against in- 
 cumbrances, 293 
 covenant implied in lease, 880 
 tortious disturbances by lessor, 338 
 title of lessor not usually examined, 
 
 153, 388, 676 
 damages on eviction of lessee, 386 
 lessee may recover back rent, when, 
 388 
 
 Legal estate, 
 vendor need not have, but must ob- 
 tain, 459, 741, 754 
 
 Legal process. 
 not necessary to eviction of cove- 
 nantee, 843 
 
 Lien. 
 should be noted in examination of 
 
 title, 176, 177 
 is breach of covenant against incum- 
 brance, 287 
 of purchaser on failure of title, 593 
 does not exist if vendor is solvent, 
 594 
 
INDEX. 
 [kefbrences abb to pages.] 
 
 835 
 
 Lien — Continued. 
 
 nor as against purchaser without 
 notice, 594 
 
 Life estate. (See Estate for Life.) 
 
 Limitations, Statute of. 
 
 begins to run on covenant of seisin, 
 
 when, 268 
 on covenant of waiTanty, when, 343 
 title under, is marketable, 699. (See 
 
 Doubtful Title.) 
 
 Liquidated damages. 
 
 in excess of purchase money may be 
 recovered, 229 
 but amount must be reasonable, 
 
 239 
 and not a penalty or forfeiture, 230 
 
 Lis pendens. 
 
 should be noted in examining title, 
 
 177, 178 
 not an incumhrance, when, 388 
 renders title unmarketable, when, 733 
 
 Lose of bargain. (See Damages, 
 Measure of.) 
 
 Lots, 
 failure of title to part of several, 773 
 
 Marketable title. (See Doubtful 
 Title.) 
 original technical meaning of this ex- 
 pression, 673 
 modern use of this expression, 9, 673 
 doctrine of, no longer restricted to 
 
 equity, 683 
 purchaser may demand, 673 
 question of, is for the court, 676 
 opinions of counsel on question, not 
 
 admissible, 676 
 classification of cases of, 677, 709 
 classification of cases of unmarket- 
 able, 679, 709 
 title by adverse possession is, 699 
 
 Married women. (See Dower.) 
 right to require covenants from, 153 
 estopped by their covenants in some 
 
 States, 514 
 acknowledgment of deed. (See Ac- 
 knowledgment. ) 
 when deeds of, will be reformed, 547 
 coverture to be noted in examining 
 title, 181 
 
 Mechanic's lien. 
 
 to be noted in examination of title, 
 177 
 
 Merger, 
 of executory contract in deed. 438, 
 
 624 
 of verbal stipulations as to title in 
 
 deed, 438, 634 
 
 Merger — Continued. 
 cases in which merger does not- occur 
 collateral stipulations of which deed 
 not necessarily a performance, 
 430 
 where deed is void, 631 
 rule in Pennsylvania, 626 
 rule in Indiana, 282 n 
 fraud not merged in deed, 628 
 
 Mesne profits. (See Interest, Rents 
 
 and Profits.) 
 as set off against purchaser's demand 
 
 for interest, 320, 393 
 purchaser not liable to vendor for, 
 
 when, 220, 666 
 
 Metes and bounds. 
 not indispensable to description in 
 
 deed, 51 
 where uncertain or impossible, 53 
 warranty does not extend to, 326 
 
 Ministerial vendors. 
 
 cateat emptor applies to sales by, 76, 
 
 108, 118, 132 
 general covenants not required from, 
 
 157 
 
 Misnomer. 
 as objection to sufficiency pi deed, 45 
 as objection to sufSciency of certifi- 
 cate of acknowledgment, 60 
 title as dependent on, 721, n 
 
 Misrepresentations. (See Fraud, 
 Deceit.) 
 
 Mistake. 
 as ground for reformation of deed. 
 
 (See Reformation.) 
 rescission of executed contract, 798, 
 
 803 
 mistake of fact, 803 
 
 mistake as to fact on which title 
 depends, 803 
 
 as where estate has been divested 
 by happening of some event 
 of which the parties are igno- 
 rant, 803 
 
 and where subject-matter oi con- 
 tract has no existence, 804 
 
 but mere ignorance of outstand- 
 ing title in a stranger no ground 
 for relief, 805 
 
 except when grantee has pur- 
 chased his own estate, ignorant 
 of his title, 807 
 
 mistake cannot be availed of at 
 law, 808 
 
 mistake as to existence of the 
 premises, 808 
 
 where deed does not convey the 
 lands purchased, 808 
 
 grantee must reconvey the 
 premises, 809 
 
836 
 
 INDEX. 
 
 [references aub to pages.] 
 
 Mistake — Continued. 
 
 . mistake must not have arisen 
 
 from negligence, 810 
 mistake must have been material, 
 
 810 
 mistakes as to quantity, 811 
 mistake of law, 811 
 in many cases no ground for re- 
 lief, 811 
 but relief granted in some cases, 
 
 813 
 distinction between ignorance of, 
 
 and mistake of law, 814 
 "ignorance of law does not 
 
 excuse" applies only to the 
 
 general public laws, 818 
 erroneous construction of devise 
 
 or grant, 818 
 where true construction of the 
 
 law is doubtful, 819 
 misrepresentation of law by 
 
 vendor, 819 
 mistake must be mutual, 820 
 
 Honey had and received, 
 action for, where title has failed, 558 
 expenses of examining title not re- 
 coverable in, 563 
 
 Mortgage. (See Ikcumbeakce, Pur- 
 chase Monet.) 
 general covenants must be inserted 
 
 in, 153 
 to be noted in examining title, 176 
 in form an absolute deed, purchaser 
 
 without notice of, 180 
 operates no breach of covenant of 
 
 seisin, 259 
 is breach of covenant against incum- 
 brances, 288 
 excepted by parol from covenants, 
 
 281 
 effect of purchase " subiect to," 
 381 
 eviction under, is breach of covenant 
 
 of warranty, 355 
 for purchase money, foreclosure of, 
 
 where title has failed, 435, 790 
 mortgagor estopped by covenants in, 
 498 
 unless given for purchase money, 
 868, 498 
 detention of purchase money where 
 
 exists, 446, 566 
 renders title unmarketable, when 
 733, 737 
 
 Negligence. (See Laches.) 
 mistake resulting from, no ground 
 for reformation, 587 
 nor for rescission, 810 
 
 Nominal damages. (See Damages, 
 Measubb op.) 
 what are, 309 
 
 I Nominal damages — Continued, 
 for inability to convey good title, 211 
 on breach of covenant for seisin, 
 when, 272 
 against incumbrances, 307 
 judgment for, bars second action on 
 same covenant, 308 
 but not on other covenants. 273 
 
 Non-claim, Covenant of. 
 
 equivalent to covenant of special war- 
 ranty, 322 
 will operate an estoppel in some 
 
 States, 522 
 
 Non-residence. 
 
 as ground for purchaser's lien on the 
 
 premises, 594 
 as ground for enjoining collection of 
 
 purchase money, 783 
 title as dependent on proceedings in 
 
 case of, 715, n 
 
 Notice. 
 of incumbrance, when immaterial to 
 action for breach of covenant, 287 
 when material in case of physical 
 incumbrance, 297 
 of defect does not affect liability on 
 warranty, 334 
 as affecting right to rescind contract, 
 
 194, 430, 569 
 rule in Texas and Pennsylvania, 
 449, 634, 636 
 to covenantor of ejectment and re- 
 quest to defend, 402. (See Wab- 
 
 RAKTT.) 
 
 not indispensable to recovery on 
 warranty, 409 
 
 necessary to affect assignee with 
 equities, 871 
 
 purchaser of after-acquired estate 
 from covenantor without, pro- 
 tected, 502. (See Estoppel.) 
 
 deed recorded prior to inception of 
 _ grantor's title, not. 503 
 
 of intent to rescind, 549 
 
 time made material by, 760 
 
 record as notice to purchaser, 240, 636 
 
 Objections. 
 
 to title, waiver of. (See Waiver op 
 Objections.) 
 summary of different sources of, 175 
 to deed, should be seasonably made, 
 
 and to abstract of title, 167 
 
 Officer, 
 of corporation, should execute deed, 
 how, 48 
 how acknowledge, 61 
 ca.vcat emptor applies to sales by, 118, 
 
 133 
 covenants cannot be required from. 
 157 
 
INDEX. 
 
 [ebpkbencbs aee to pages.] 
 
 837 
 
 Officer — Continued. 
 
 j taking certificate of aclinowledgment. 
 
 (See Acknowledgment.) 
 / title as dependent on powers of, 
 
 720, n 
 
 Omissions. (See Mistake.) 
 from deed as ground for reformation, 
 539 
 
 Opinion. 
 
 mere expression of, as to title, no evi- 
 dence of fraud, 248 
 
 of conveyancing counsel inadmissible 
 on question of title, 676 
 
 Orphan's court sales. (See Caybat 
 Emptob.) 
 
 Paramount title. 
 
 in a stranger, no breach of warranty, 
 
 341 
 must be hostilely asserted to consti- 
 tute breach of warranty, 351, 356 
 notice to defend ejectment dispenses 
 
 with proof of, in evictor, 402 
 need not be set forth with particular- 
 ity in pleading, 412 
 but eviction under must be averred, 
 412 
 outstanding, as ground for detaining 
 purchase money, 599 
 (See PuKCHASB Monbt of Lauds.) 
 purchaser may buy in, 481 
 but cannot use to defeat vendor's 
 
 title, 523 
 exception, 524 
 
 Parol agreements. (See Merger.) 
 as to removal or assumption of 
 
 Incumbrance, 281 
 as to title, merged in deed,- when, 428, 
 
 624 
 
 Partial failure of consideration. 
 
 as ground for detaining purchase 
 money, 438 
 
 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 exam- 
 ining title, 171, 174, 181 
 
 bound and benefited by covenant of 
 warranty, 332 
 
 to suit for rescission, 671 
 
 title as dependent on want of, to suit, 
 716 
 competency of, to deed, 724 
 
 Partition. 
 covenants implied in, when, 331 
 title as dependent on proceedings in, 
 712, 714, n 
 
 Partners. (See Joiwt 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, 296 
 when not, 297 
 renders title unmarketable, 739 
 
 Patent defects, 
 vendor not bound to call attention to, 
 340 
 
 Patents of land. 
 lying in chain of vendor's title, 178 
 purchaser charged with notice of de- 
 fect in, when, 173 
 
 Payment. (See Purchase Monet, 
 Detention of.) 
 of purchase money is waiver of ob- 
 jection to title, when, 192 
 as condition precedent to action for 
 damages, 15 
 suit for specific performance, 461 
 
 Perpetuities. 
 
 to be noted in examining title, 174 
 
 Personal expenses. 
 when allowed as damages on breach 
 of warranty, 401 
 
 Personal representatives. (See Ex- 
 ecutors and Administrators.) 
 
 Pew assessments, 
 when no breach of covenant against 
 incumbrances, 289, n 
 
 (See the several cove- 
 
 Pleadings. 
 
 nants.) 
 
 Possession. 
 
 taking, when waiver of objection to 
 
 title, 188 
 inability to get, is a constructive evic- 
 tion, 345 
 of stranger is notice to purchaser, 
 
 181 
 must be restored to vendor, when, 584 
 vendor may recover, when, 587 
 title by adverse, is marketable, 699 
 detention of purchase money where, 
 undisturbed, 603 
 
 Possibility. 
 
 bare, when no objection to title, 674, 
 705, n, 715, n 
 Power. 
 
 of parties to be noted in examining 
 title, 48, 171, 174, 181 
 
 defective execution of statutory, not 
 aided in equity, 540 
 
 title as dependent on, and compe- 
 tency of parties, 724, 725, u 
 
838 
 
 INDEX. 
 
 [RBFERENC3ES ARE TO PAGES.] 
 
 Power of attorney. 
 
 validity of deed executed under, 48 
 
 to execute gives power to acknowl- 
 edge deed, 61 
 
 title, as dependent upon exercise of, 
 726, n 
 
 entry of satisfaction under, 739 
 
 Presumptions, 
 every title dependent to some extent 
 
 on, 707 
 from lapse or time, title as dependent 
 
 upon, 705 
 of death, title as dependent upon, 
 
 706 
 of satisfaction of incumbrance, 739 
 
 Principal. (See Agent, Attoenbt.) 
 is affected by agent's fraud, 235 
 but not liable in damages, 235 
 
 Privity of estate, 
 essential to doctrine of estoppel, 506 
 
 Privy examination of married wo- 
 men. (See AOKNOWLBDGMBNT.) 
 
 Public road. (See Highway.) 
 
 Purchase. 
 
 of paramount title is constructive evic- 
 tion, when, 353 
 
 Purcliase-money mortgage. 
 
 failure of title no ground for enjoin- 
 ing foreclosure of, 435 
 
 Purchase money of lands. 
 
 detention of, on failure of title, 553 
 general principles, 553 
 where the contract is executory, 557 
 
 general rule that purchase money 
 may be detained, 557, 559 
 
 forfeiture of deposit by purchaser, 
 560 
 
 exceptions to and qualifications 
 of general rule, 561 
 
 what objections may be made to 
 title, 563 
 
 expenses of examining the title, 
 563 
 
 burden of proof lies on purchaser, 
 564 
 
 right to detain, where estate is 
 incumbered, 566 
 
 taxes and assessments, 567 
 
 application of purchase money to 
 incumbrances, 567 
 
 buying with knowledge of defect 
 or incumbrance, 569 
 
 chancing bargains, 570 
 
 burden on vendor to show as- 
 sumption of risk, 571 
 
 effect of accepting title bond, 
 372 
 
 consideration of sealed instru- 
 ment may be inquired into, 573 
 
 Purchase money — Continued. 
 
 injunction against collection of 
 purchase money, 574 
 in cases of fraud, 575 
 not necessarily a disaffirmance 
 
 of contract, 575 
 bill must aver tender of pur- 
 chase money, 577 
 effect of transfer of purchase- 
 money note, 577 
 refusal of vendor to convey for 
 
 want of title, 578 
 purchaser must show tender of 
 
 purchase money, 199, 578 
 where purchase money is payable 
 
 in installments, 580 
 payment of purchase money not 
 a condition precedent to, when, 
 581 
 purchaser must show offer to re- 
 scind, 582 
 pleadings and burden of proof, 
 
 582 
 purchaser must restore premises 
 to vendor, 584 
 fact that he has made improve- 
 ments immaterial, 587 
 vendor must be placed in statu 
 
 quo, 588 
 restoration a condition prece- 
 dent to rescission, 589 
 rule in Pennsylvania, 590 
 restoration in cases of fraud, 
 
 591 
 when purchaser need not re- 
 store premises, 593 
 where vendor refuses to re- 
 ceive them, 593 
 where detention necessary for 
 purchaser's indemnity, 593 
 purchaser's lien for purchase 
 
 money, 594 
 where title fails to part only, 
 
 595 
 where the contract is void (?), 
 597 
 where covenants for title have been 
 broken, 
 general rule, 421 
 cannot detain, where no breach 
 
 of covenants, 434 
 exception to this rule, 427 
 merger of prior agreements, 428 
 purchase with knowledge of de- 
 fect, 430 
 recoupment, 433 
 recoupment in foreclosure suit, 
 
 435 
 partial failure of consideration, 
 
 438 
 assumpsit to try title, 441 
 what constitutes eviction, 443 
 purchase of outstanding title, 443 
 discharge of incumbrances, 446 
 
INDEX. 
 
 839 
 
 [refebknces aee to pages,] 
 
 Purchase money — Continued, 
 rule in Texas, 449 
 rule in South Carolina, 451 
 pleadings, 454 
 resume, 455 
 where covenant of seisin has heen 
 
 broken, 599 
 semble that purchaser may detain, 
 
 in some of the States, 603 
 though he has not been evicted, 
 608 
 provided there is a moral cer- 
 tainty of eviction, 613 
 and provided he reconveys the 
 
 premises, 613 
 breach of this covenant as to part 
 of the premises, 615 
 where covenants for title have not 
 been broken, 
 general rule is that purchase 
 money cannot be detained, 421 
 except in cases of fraud, 647 
 and where equity exercises a 
 quia timet jurisdiction, 783 
 where there are no covenants for 
 title, 616 
 general rule is that purchaser 
 
 cannot detain, 616 
 reasons for this rule, 618, 619 
 want of title is npt of itself a 
 
 mistake, 630 
 purchaser should be subrogated 
 to benefit of incumbrance, 620 
 exceptions to general rule above, 
 
 623 
 where the deed is absolutely void, 
 
 623 
 merger of all prior agreements 
 
 respecting the title, 634 
 what agreements not merged in 
 
 conveyance, 636 
 fraud not merged in conveyance, 
 
 638 
 rule in Pennsylvania as to deten- 
 tion of purchase money, 633 
 absence of covenants for title 
 
 immaterial, 633 
 unless purchaser had notice of 
 
 defective title, 633, 634 
 constructive notice insufficient, 
 
 636 
 adverse title must be clear and 
 
 undoubted, 635 
 incumbrance must equal unpaid 
 
 purchase money, 635 
 purchaser's risk of the title, 
 
 when presumed, 637 
 no presumption from notice 
 of pecuniary incumbrance, 
 when, 638 
 presumption where deed con- 
 tains covenants for title, 638 
 no relief unless covenants have 
 been broken, 638 
 
 Purchase money — Continued. 
 
 no relief by way of recovering 
 
 back tho purchase money, 639 
 
 Pennsylvania rule does not 
 
 apply to sheriff's sales, 641 
 nor to judicial or ministerial 
 sales, 641 
 detention or restitution in oases of 
 fraud, 647 
 purchaser may always recover back 
 
 or detain, in cases of fraud, 647 
 whether contract is executory or 
 
 has been execiited, 647 
 whether there are or are not cove- 
 nants for title, 647, 650 
 whether covenants have or have not 
 
 been broken, 647, 651 
 purchaser electing to rescind must 
 
 notify vendor, 647 
 purchaser may affirm instead of 
 
 rescind contract, 647 
 coQCurrent remedies in cases of 
 
 fraud, 649 
 may be availed of as defense at 
 
 law, 651 
 what amounts to fraud by vendor, 
 
 653 
 waiver in cases of fraud, 653 
 by acceptance of conveyance 
 with knowledge of fraud, 653 
 by laches and delay, 654 
 purchaser does not waive dam- 
 ages by affirming contract, 654 
 may be recovered back on failure of 
 title, when, 553 
 where contract is executory 
 (See above. Detention of Pue- 
 
 CHASB Money, and 553.) 
 general rule is that purchase 
 money may be recovered back, 
 558 
 where vendor wrongfully con- 
 veys away the premises, 564 
 where vendor tenders insufficient 
 
 deed, 565 
 purchaser at j udicial sale cannot 
 
 recover back, 565 
 where title is unmarketable, 565. 
 
 (See DouBTPUL Title.) 
 fact that contract was within Stat- 
 ute of Frauds immaterial, 565 
 cannot recover more than pur- 
 chase money, interest and 
 exj)enses, 566 
 where contract has been executed 
 cannot be recovered back eo 
 nomine, 643 
 purchaser's remedy is on the 
 
 covenants, 643 
 cannot recover on contempora- 
 neous parol agreement to re- 
 fund, 645 
 nor maintain bill in equity against 
 vendor, 645 
 
840 
 
 INDEX. 
 
 [references are to pages.] 
 
 Purchase money — Continued. 
 
 rule does not apply in case of 
 mistake, 645 
 
 nor where deed is absolutely in- 
 operative, 64tj 
 
 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 damages, 
 
 17 
 right to require a title free from de- 
 fects, 20, 673 
 may reject conveyance tendered, 
 
 when, 40 
 entitled to what covenants for title, 
 
 143 
 bound bj' maxim caveat emptor, when. 
 
 75 
 may require abstract of title, 159 
 entitled to time for examination of 
 
 title, 165 
 should make what inquii'ies in pais, 
 
 181 
 what acts of, amount to waiver of ob- 
 jections to title, 183 
 must tender purchase monej; and de- 
 mand deed, when, 199 
 may maintain action on the case for 
 
 deceit, 233 
 may surrender possession to owner of 
 
 better title, 348 
 may detain purchase money on fail- 
 ure of title 
 where the contract is executory, 
 
 548, 554, 656 
 where covenant of warranty has 
 
 been broken. 420 
 on breach of covenant of. sei.sin, 
 
 semhle, 599 
 in cases of fraud, 647, 798 
 cannot detain purchase money on 
 failure of title 
 where no covenants for title, 610 
 
 except in Pennsylvania, 633 
 where objections to title have been 
 waived, 183 
 may recover back purchase monej- on 
 failure of title 
 where the contract is executory, 554 
 but not after contract has been 
 executed, 643 
 his remedy is on the covenants if 
 any, 643 
 entitled to specific performance of the 
 contract, ■when, 456 
 and to damages in equity, when, 463 
 may elect to take the title though de- 
 fective, 467 
 or with compensation for defects, 
 467 
 
 Purchaser — Continued, 
 has a right to perfect the title, 481 
 estopped to deny title of vendor. 
 
 when, 523,663 
 subrogated to benefit of lien, 486 
 may compel removal of incumbrances, 
 
 when, 491 
 may compel transferof after-acquired 
 
 title, 491 
 entitled to reformation of conveyance, 
 
 when, 526 
 may rescind contract on failure of 
 title, when, 548, 656 
 by notice without suit, 548 
 by proceedings at law or in equity, 
 554, 656 
 must restore premises to vendor on 
 rescission, 583 
 but has lien for purchase money, 
 when, 593 
 cannot be required to accept doubtful 
 title, 672 
 may require record title, when, 689 
 cannot be compelled to buy a law- 
 suit, 697 
 compelled to take title by adverse 
 possession, when, 699 
 must take title with compensation for 
 
 defects, when, 769 
 may enjoin collection of purchase 
 
 money, when, 574, 778 
 relieved where subject of contract 
 does not exist, 804 
 and where he buys his own estate, 
 
 807 
 and in other cases of mistake, 802, 
 
 811 
 and wherever the vendor is guilty 
 of fraud, 780, 798 
 duty to see to application of pur- 
 chase money, 735 
 
 Purchaser's defenses. (See Purchase 
 Monet op Lands.) 
 to action for breach of contract, 18 
 to suit for specific performance, 659 
 
 Purchaser without notice. 
 
 not protected where vendor had no 
 
 actual legal title, 179 
 is protected against equities in third 
 
 persons, 180 
 of equities between covenantor and 
 
 covenantee, 371 
 of after-acquired estate protected, 
 
 502 
 record as notice to purchascx, 240, 636 
 
 Qualified covenants. 
 
 express agreement will restrict cove- 
 nant of warranty, 327 
 
 general covenants not restrained un- 
 less intent clearly appears, 327 
 
 subsequent limited covenant will not 
 restrain prior covenant, when, 337 
 
INDEX. 
 
 841 
 
 [references are to pages.] 
 
 Qualified covenants— Continued. 
 
 restrictive words iu first covenant 
 extend to all, when, 327 
 
 general covenant does not enlarge 
 subsequent limited covenant, 338 
 
 restrictive words in one will not con- 
 trol other covenants, when, 338 
 
 equity will reform deed by inserting 
 restriction or qualification, 339 
 
 Quantity. 
 
 covenant of warranty does not extend 
 to, 336 
 
 purchaser must accept title vsith com- 
 pensation for loss of small, of estate, 
 when, 7t)9 
 
 Quia timet. 
 
 equity will exercise this jurisdiction 
 on failure of title, when, 783 
 
 Quiet enjoyment, Covenant for. (See 
 Wakrantt, Covenant or.) 
 
 same in effect as covenant of war- 
 ranty, 414 
 
 what constitutes breach, 415 
 
 implied in leases, 330 
 
 tortious disturbance by landlord is 
 breach of, 338 
 
 Quit claim. (See Covenants for 
 
 Title.) 
 what is, 140 
 
 agreement ta convey by, 36 
 purchaser accepting cannot detain 
 purchase money, 616 
 
 except iu case of fraud, 647 
 passes benefit of covenants for title, 
 
 363 
 but will not transfer after-acquired 
 
 title, 501 
 
 Krail'way. 
 
 when existence of, is breach of cove- 
 nant against incumbrances, 398 
 
 Rebutter, 
 operation of covenants for title by 
 way of, 508 
 
 Recitals, 
 in deed put purchaser upon notice, 
 
 173 
 no covenants implied from mere, 
 
 333 
 sometimes operate as an estoppel, 
 
 333 
 
 Recognizance. 
 
 to be noted in examining title, 177 
 
 Reconveyance. 
 
 on detention of purchase money where 
 breach of covenant of seisin, 604, 
 613 
 
 on rescission of executed contract, 799, 
 800 
 
 106 
 
 Record. 
 
 defects of title apparent from public, 
 
 175 
 purchaser charged with notice from 
 
 public, when, 340 
 when puchaser may require good title 
 
 of, 34, 689 
 cannot be collaterally attacked on 
 
 question of title, when, 88 
 title as dependent on sufficiency of, 
 
 719, 730, n 
 in ejectment made evidence against 
 
 vendor by notice, 403 
 
 Recording acts. 
 
 notice, as between vendor and pur- 
 chaser, by virtue of, 340 
 
 record of deed prior to inception of 
 grantor's title, 503 
 
 Recoupment. 
 
 distinguished from set-off, 434 
 detention of purchase money by way 
 
 of, 433 
 on foreclosure of purchase-money 
 
 mortgage, 435 
 
 Reference of title to master in ch.an- 
 cery. 
 
 title will be referred, when, 763 
 
 when, is matter of right, 763 
 
 denied where purchase was a chanc- 
 ing bargain, 763 
 
 and where the court is satisfied about 
 the title, 764 
 
 at what stage of proceedings refer- 
 ence is directed, 764 
 
 procedure on, 765 
 
 costs of, how decreed, 765 
 
 Reformation of tlie conveyance. 
 
 by insertion of covenants for title, 
 339 
 
 is a familiar ground of equitable 
 jurisdiction, 536 
 
 is a species of specific performance, 
 526 
 
 plaintiff should first have tendered 
 corrected deed, 537 
 
 unless defendant has refused or was 
 incompetent to execute same, 527 
 
 and except in suit to reform and fore- 
 close mortgage, 537 
 
 defendant refusing to correct must 
 pay costs, 537 
 
 bill must contain prayer for reforma- 
 tion, 538 
 
 but held that prayer for " other and 
 further relief " sufficient, 538 
 
 reformation of deed does not contra- 
 vene Statute of Frauds, 538 
 
 equities of both parties will be en- 
 forced, 538 
 
 adverse possession by stranger no ob- 
 jection to, 539 
 
842 
 
 INDEX. 
 [bepekenoes abb to pages.] 
 
 Reformation of conveyance — Con. 
 purcliaser under void sheriffs sale 
 
 cannot sue for reformation, 529 
 how mistakes in recording deed cor- 
 rected, 539 
 mistake of fact in insertion or omis- 
 siou relievable, 539 
 
 contents as intended but founded in 
 mistake of fact, 530 
 
 mistake in wills cannot be cor- 
 rectad, 530 
 
 patent ambiguity in a deed may be 
 corrected, 531 
 
 reservations will not be inserted un- 
 less omitted through fraud or 
 mistake, 531 
 
 equity will insert omitted cove- 
 nants for title, 531 
 
 unless purchaser Imew character of 
 the deed, 531 
 
 ignorance of defective title no 
 ground for inserting warranty. 531 
 nlstake of law no ground for reforma- 
 tion, 532 
 
 contrary view in some cases, 533 
 
 where deed fails to express inten- 
 tion of ptiTties, 533 
 
 distinction between reformation 
 and rescission, 533 
 
 court merely enforces original con- 
 tract, 533 
 
 whaL is mistake of fact, and what 
 mistake of law, 533 
 mistake must have been mutual, 535 
 
 unless defendant was guilty of 
 fraud, 536 
 
 though the fraud might have been 
 discoveirtd, 536 
 
 mere ignorance of contents of deed 
 no ground for reformation, 537 
 
 pleadings fnust allege mutuality of 
 misrtake, 536 
 mistake must have resulted from 
 negligence, 537 
 
 exceptions to this rule, 537 
 nature and degree of evidence re- 
 quired, 538 
 
 no difficulty in case of patent mis- 
 take, 538 
 
 parol eviaence admissible to show 
 mistake, 538 
 
 but must be clear and positive, 539 
 
 burden of proof is on complainant, 
 539 
 
 inconsistence of deed with prior 
 contract not necessarily a mis- 
 take, 539 
 laches in application for relief, 539 
 
 not imputable until discoveiy of 
 mistake, 540 
 
 nor where grantor has refused to 
 correct, 540 
 defective execution of statutory 
 power will not be aided, 540 
 
 Reformation of conveyance — Con. 
 except in mere matters of descrip- 
 tion, 540 
 right not confined to immediatt; 
 parties, 540 
 but complainant must be party or 
 
 privy to the deed, .540 
 remote grantee entitled, 541 
 denied purchaser at sherifPs sale, 
 
 541 
 denied grantee owing part of pur- 
 chase money, 541 
 grantor entitled to reformation, 543 
 but deed is always construed 
 
 strongly against him, 542 
 and denied in case of his negli- 
 gence, 543 
 and where he insists upon pay- 
 ment of the purchase money,. 
 543 
 may be decreed against heirs, de- 
 visees, grantees and others, 543 
 persons in interest must be made 
 
 parties, 543 
 when grantor not a necessary 
 party, 543 
 may be decreed in favor of and 
 against subsequent purchasers 
 and creditors, 544 
 but not as against them if with- 
 out notice, 544 
 possession sufficient as notice, 545 
 mistake on face of deed is notice, 
 
 545 
 bill must aver notice to defend- 
 ant, 546 
 purchaser must have paid value, 
 546 
 volunteer not entitled to reforma- 
 tion as against grantor, 546 
 but is entitled as against other 
 
 persons, 546 
 granted in favor of mortgagee of 
 
 volunteer, 546 
 examples of sufficient considera- 
 tion, 546 
 married woman's deed will not be 
 reformed, 547 
 except in matters of description, 
 
 547 
 and except where disabilities 
 have been removed, 547 
 
 Registration of deeds. (See Record 
 
 AND ReCOEDING ACTS.) 
 
 Registry acts. (See Rbcokdinq- 
 Acts.) 
 
 Release. (See Quit Claim.) 
 does not affect subsequent assignee 
 
 of covenants, 363 
 will pass benefit of covenants for 
 
 title, 363 
 will not operate estoppel or rebutter, 
 
 516 
 
INDEX. 
 
 843 
 
 [references are to pages.] 
 
 Kemedies. 
 
 of the parties on failure of title. 
 (See Analysis, p. VII.) 
 
 Bescission. 
 of executory contract, 4, 656 
 by proceedings at law, 554 
 by act of the parties, 548 
 rescission is abrogation of the 
 
 contract, 548 
 classification of ways in which 
 
 rescission may occur, 549, n 
 may always occur by consent of 
 
 parties, 549 
 consent maj^ be implied from ac- 
 quiescence, 549 
 party rescinding should give 
 
 notice of intent, 549 
 each party must restore what he 
 
 has received, 549 
 no forfeiture of purchaser's de- 
 posit in such cases, 550 
 though contract provides for 
 such forfeiture, 550 
 rescission by act of one party 
 only, 550 
 but one party cannot deprive 
 the other of right to per- 
 form, 551 
 may sometimes treat the con- 
 tract as rescinded, 551 
 rescission by consent not within 
 Statute of Frauds, 553 
 by proceedings in equity, 656 
 suit for rescission proper, 656 
 may be maintained where title 
 
 has failed, 656 
 not dependent on right to 
 maintain action for damages, 
 657 
 grounds of equitable jurisdic- 
 tion, 657 
 fraud always ground for, 658 
 reduction of agreement to 
 
 writing, immaterial, 658 
 rescission where vendor had no 
 
 power to sell, 658 
 when purchaser estopped to 
 
 rescind, 659 
 defenses to vendor's suit for 
 specific performance, 659 
 doubtful or unmarketable 
 
 title, 659 
 unless sale was of such title or 
 interest as vendor had, 659 
 vendor must show title prma 
 
 fade, 660 
 purchaser must then show 
 
 defects, 660 
 objection to title may be 
 
 made after answer, 660 
 vendor resting his title on 
 particular ground cannot 
 shift after suit begun, 660 
 
 Rescission — Cpntinued. 
 
 vendor on rescission must be 
 placed in statu quo, 661 
 purchaser must restore prem- 
 ises to vendor, 661 
 denied, where premises can- 
 not be restored in same 
 condition as received, 663 
 unless injury can be abated 
 from purchase money, 663 
 substantial compliance with 
 
 rule sufficient, 664 
 vendor's remedy when pur- 
 chaser refuses to restore, 
 663, 663 
 contract must be rescinded m 
 
 toto or not at all, 663 
 vendor may recover premises 
 
 in ejectment, 663 
 purchaser estopped to deny 
 
 his title, 663 
 restoration as condition prece- 
 dent to rescission, 664 
 cases in which purchaser 
 may refuse to restore the 
 premises, 593 
 purchaser entitled to interest on 
 purchase money, when, 664 
 rents and profits usually set 
 
 off against interest, 665 
 
 unless pm'chaser liable to 
 
 true owner for mesne 
 
 profits, 666 
 
 wiieu not liable to vendor for 
 
 mesne profits, 330, 666, 667 
 
 in equity purchaser allowed 
 
 for improvements, 668 
 unless made with notice of 
 defect, 669 
 purchaser's pleadings must 
 show huw title is defective, 
 670 
 who necessary parties to suit 
 for rescission, 671 
 of executed contract, 798 
 generally denied except in cases of 
 
 fraud and mistake, 798 
 (See Mistake, and 803.) 
 (See PuKCHASB Money, and 599.) 
 fraud always a ground for rescis- 
 sion, 799 
 fraud not merged in warranty, 800 
 decree must provide for reconvey- 
 ance, 799 
 purchaser must reconvey or oSer 
 
 to reconvey, 800 
 except where vendor has no color 
 
 of title, 801 
 or has refused to accept a recon- 
 veyance, 801 
 purchaser must act promptly on 
 
 discovery of fraud, 801 
 damages allowed purchaser on re- 
 scission when, 464, 803 
 
844 
 
 INDEX. 
 
 [references are to pages.] 
 
 Beservation. 
 
 unauthorized, in deed, 73 
 
 of vendors lien to be noted in exam- 
 ining title, 172 
 
 of minerals is an incumbrance, 730 
 other reservatioijs, 730 
 
 by parol, inadmissible in evidence, 
 281 
 
 Restoration of premises to vendor. 
 
 necessary on rescission of contract, 
 584 
 though purchaser has made im- 
 provements, 587 
 vendor must be placed in statu quo, 
 
 588 
 as condition precedent to rescission, 
 
 589 
 rule in Pennsylvania, 590 
 in cases of fraud, 591 
 when rule does not apply, 593 
 where vendor refuses to receive 
 
 them, 593 
 where detention necessary for 
 
 purchaser's indemnity, 593 
 purchaser's lien for purchase 
 
 money paid, 594 
 where title fails to part duly, 
 
 559 
 where the contract is void, 597 
 
 Resulting trust. 
 
 purchaser without notice not afEected 
 by, 180 
 
 Right of way. 
 
 to be inquired for by purchaser, 
 
 182 
 when a breach of covenant against 
 incumbrances, 295 
 notice of, to purchaser at time of 
 covenant, 297 
 is not breach of covenant of seisin, 
 
 259 
 renders title unmarketable, 730 
 loss of or eviction from, a breach of 
 
 warranty, 358 
 through warranted premises, a breach 
 of warranty, 359 
 
 "Right, Title and Interest." (See 
 Quit Claim.) 
 effect of agreement to sell, 38 
 conveyance of, will not pass after- 
 acquired estate, 520 
 
 Right to convey, Covenant for. (See 
 CovENAKT OP Seisin.) 
 
 Roads. (See Highways.) 
 
 Root of title. (See Absthact op 
 Title.) 
 what is, 161 
 
 Running with the land. (See the 
 several covenants for title.) 
 
 Sale. (See Judicial Sale, Caveat 
 Emptok.) 
 implies indefeasible title in vendor, 20 
 of fee simple implied, 21 
 by personal representatives, 108 
 sheriffs and others, 118, 132 
 
 Satisfaction of lien. 
 
 by surety should be noted in examin- 
 ing title, 176 
 of incumbrance, when presumed, 739 
 
 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, 170 
 does not exclude inquiry into con- 
 sideration, 573 
 
 Seisin, Covenant for. 
 
 form and effect of, 253 
 
 importance of, 254 
 
 requires an indefeasible estate, 354 
 
 in some States satisfied by bare pos- 
 session, 255 
 
 implied from certain words of grant, 
 256 
 
 right of action for breach is personal, 
 256 
 
 what constitutes breach, 257 
 mere incumbrance does not, 259 
 
 not affected by champertous deed, 258 
 
 does not run with land after breach, 
 260 
 contrary rule in some States, 264 
 possession must have passed with 
 deed, 267 
 
 when Statute of Limitations begin to 
 run, 268 
 
 where action must be brought, 269 
 
 measure of damages for breach, 269 
 nominal, if no eviction, 271 
 loss of part of estate only, 273 
 
 burden of proof in action for breach, 
 273 
 
 pleadings in action for breach, 376 
 
 detention of purchase money in case 
 of breach, 599. (See Purchase 
 Money op Lands.) 
 
 Set-off. (See Countbbolaim, Kecoup- 
 
 MENT.) 
 
 Sheriff's sale. (See Caveat Emptor.) 
 caveat emptor applies to, 118 
 exceptions, 138 
 
 title under void judgment, 126 
 title under void execution, 129 
 purchaser cannot require covenants 
 
 157 
 covenants enure to benefit of pur- 
 chaser at, 364 
 
INDEX. 
 
 845 
 
 [kbfeeencbs are to pages,] 
 
 Sheriffs sale — Continued. 
 Pennsylvania, equitable doctrine of 
 detention of purchase money does 
 not apply to, 641 
 
 Signature. 
 
 of grantor to deed not essential, 54 
 tout should be required by purchaser, 
 
 54 
 of certifying officer to certificate of 
 
 acknowledgment, 68 
 to be noted in examination of title, 170 
 
 Sovereignty. (See Acts of Sovek- 
 BiGNTT, Eminent Domain.) 
 
 Specific performance. (See Title, 
 
 Bight to Perfect, Compensation 
 
 FOB Defects, Pukchasbk, Doubt- 
 ful Title.) 
 of executory contracts at suit of pur- 
 chaser, 456 
 
 denied where vendor has no title, 457 
 
 and where equitable title is in a 
 stranger, 457 
 
 granted as against second purchaser 
 with notice, 458 
 
 vendor must make reasonable effort 
 to get in title, 459 
 
 want of title at time of contract, no 
 objection, 459 
 
 when vendor may be requii'ed to 
 remove incumbrance, 460 
 
 when he cannot be required to re- 
 move defect, 460 
 
 abandonment of contract waives 
 right to specific performance, 461 
 
 acceptance of offer to sell must be 
 unqualified, 461 
 
 effect of acceptance of purchaser 
 ' ' provided the title is perfect," 461 
 
 purchaser must have paid or ten- 
 dered purchase money, 461 
 
 unless he has notice that vendor 
 will not perform, 463 
 
 laches takes away purchaser's right 
 to relief, 463 
 
 damages in lieu of specific perform- 
 ance denied, 464 
 
 unless other relief was in good faith 
 the object of the suit, 464 
 
 measure of damages in such cases, 
 466 
 at suit of purchaser, with compensa- 
 tion for defects, 467 
 
 may take such estate as vendor has, 
 469 
 
 or apply purchase money to incum- 
 brances, 469 
 
 or have abatement of purchase 
 money, 469 
 
 basis upon which compensation will 
 be decreed, 469 
 
 purchaser bound by election to 
 keep the estate, 470 
 
 Specific performance — Continued, 
 decree for abatement, how framed, 
 
 470 
 purchaser cannot require indemnity 
 
 against future loss, 470 
 except, it seems, against inchoate 
 
 right of dower, 473 
 and this by abatement of purchase 
 
 money, 472 
 where specific performance with 
 abatement denied. 475 
 where there is title to small portion 
 
 only, 475 
 where conditions of sale provide 
 
 for rescission, 475 
 where purchaser bought with 
 knowledge of defect, 475, 477 
 where purchaser has been guilty of 
 
 laches, 476 
 where contract was to convey 
 
 upon a contingency, 476 
 where inconsistent with the con- 
 tract, 476 
 purchaser must have given vendor 
 
 opportunity to abate, 477 
 must take the whole of part to which 
 
 title is good, 477 
 right of vendor to rescind where title 
 
 fails, 478 
 denied, unless reserved in the con- 
 tract, 478 
 or except in case of fraud or mis- 
 take, 478 
 vendor rescinding must return 
 purchase money, 480 
 specific performance of covenants for 
 title, 489 
 of covenant for further assurance, 
 
 489 
 removal of incumbrance, 490, 491 
 conveyance of after-acquired estate, 
 491 
 State. (See Eminent Domain.) 
 
 covenants cannot be required from, 
 
 158 
 but if given operate an estoppel 158 
 appropriation of lands by, no breach 
 of warranty, 339 
 
 Statute. (See Limitations, Statute 
 
 OP.) 
 
 of Frauds, agreement to rescind is not 
 within, 552 
 does not affect right to recover 
 back, 565 
 title as dependent on private, 715, 
 717, n., 725, n 
 
 Street. (See Highway.) 
 
 Subrogation. 
 
 of surety, to be noted in examining 
 title, 176 
 
 of purchaser at judicial and ministe- 
 rial sales, 134 
 
846 
 
 INDEX. 
 
 [references are to pages.] 
 
 Subrogation — Continued, 
 of purchaser to benefit of lien, 486 
 where no covenants for title, 621 
 
 Subsequent purchaser. (See Pur- 
 chaser.) 
 entitled to benefit of covenants for 
 title, 303, 359 
 
 Sufficiency of conveyance tendered. 
 (Sec Deed.) 
 
 Sufficiency of vendor's title. (See 
 Doubtful TrrLE, Title, Aestkact 
 OF Title.) 
 
 Suit. (See Action.) 
 
 effect of notice to covenantor of, and 
 
 request to defend, 403 
 in equity, when a breach of covenant 
 for quiet enjoyment, 415 
 
 Sunday. 
 
 deed executed on, is valid, 44 
 
 Surplusage. 
 
 does not vitiate certificate of acknowl- 
 edgment, 70 
 
 Surrender. 
 
 of premises, when a constructive evic- 
 tion, 348 
 
 adverse title must have been hos- 
 tilely asserted, 351 
 
 and must be shown to have been 
 paramount, 352 
 
 Suspension of power of alienation. 
 
 title as dependent on, cases cited, 
 723, n 
 Taxes. 
 to be noted in examining title, 177 
 when breach of covenant against in- 
 cumbrances, 288 
 covenants for title cannot be required 
 from tax officer, 157 
 Tax sale. 
 will not pass benefit of covenants for 
 
 title, 364 
 caveat emptor applies to, 132 
 Tax title, 
 validity of tax sale to be noted in ex- 
 amining title, 178 
 burden is on adverse claimant to show 
 
 invaUdity of, 178 
 caveat emptor applies to purchase at 
 tax sale, 132 
 and has been applied to transferee 
 of tax title, 132 
 
 Tenants in common, 
 should covenant severally, 153 
 may sue severally for breach of war- 
 ranty, 336 
 
 Tender of performance. 
 
 by purchaser, necessity for, 199 
 
 Tender of performance — Continued. 
 distinction between mutual and de- 
 pendent covenants, 199 
 what is sufficient tender, 201 
 when no tender need be made, 201 
 duty of vendor to tender perform- 
 ance, 304 
 vendor must prepare conveyance, 206 
 tender must be averred, 207 
 
 Term of years. (See Lbaee.) 
 
 Timber. 
 
 privilege, breach of covenant against 
 incumbrances, 292 
 Time. (See Laches, Limitatioks, 
 Statute op.) 
 
 of completing contract, when mate- 
 rial, 749 
 
 in which to perfect the title allowed, 
 741, 746 
 
 in which to examine title allowed, 75 
 
 in which abstract should be furnished, 
 164 
 
 title as dependent on presumptions 
 from lapse of, 705, 739 
 
 Title. (See Title, Right to Perfect 
 
 THE.) 
 
 absolutely bad, what is, 2 
 purchaser may demand what, 20, 672 
 covenants for, which purchaser may 
 
 demand, 143 
 abstract of, 159 
 should be examined by purchaser, 
 
 160, 240, 344, 376 
 of lessor not usually examined, 153, 
 
 388 
 waiver of objection to, 183 
 paramount, may be gotten in by 
 
 covenantee, 353, 481 
 may be perfected by purchaser, 481 
 acceptance of, with compensation for 
 
 defects, 467, 769 
 subsequently acquired, enures to 
 
 grantee, 493 
 root of, what is, 161 
 doubtful, what is, 2, 672 
 as dependent on adverse possession, 
 699 
 presumptions from lapse of time, 705 
 notice, 708 
 
 errors in judicial proceedings, 711 
 sale of estates of infants and others, 
 
 714 
 want of parties to suits, 716 
 defective conveyances, 719 
 construction of deeds and wills, 723 
 competency of parties to instru- 
 ments, 724 
 intestacy and insolvency, 726 
 satisfaction of incumbrances, 737 
 vendor may perfect, 741 
 may be referred to master in chan- 
 cery, 763 
 
847 
 
 [eefekences are to pages.] 
 
 Title bond. 
 is a sealed obligation to make title 
 
 under penalty, 23 
 acceptance of, has been held a waiver 
 of right to rescind, 196 
 contrary view in other cases, 573 
 
 Title, Riglit to perfect the. 
 rigiit of purchaser to perfect the title, 
 481 
 by the purchase of adverse claim, 
 
 481 
 but only as set-off to purchase 
 
 money, 481 
 unless he has been evicted or sur- 
 rendered the premises, 483 
 purchase must have been necessary 
 
 for his protection, 483 
 price paid not conclusive of value 
 
 of adverse claim, 484 
 caution in purchasing prospective 
 
 interests, 484 
 discharge of liens and incum- 
 brances, 484 
 purchaser may always apply pur- 
 chase money to liens, 484 
 duty so to apply purchase money, 
 
 485 
 takes the risk of validity of the in- 
 cumbrance, 486 
 caution in paying off mortgage lien, 
 486 
 rights of transferee of mortgage 
 note, 486 
 can have credit only for amount 
 
 actually paid, 486 
 subrogation to benefit of lieu dis- 
 charged, 486 
 and to all of lienor's remedies, 487 
 but only to extent of amount 
 
 paid out, 487 
 in case of void sale, 487. (See 
 Caveat Emptor.) 
 right of vendor to perfect the title 
 before time fixed for completion of 
 the contract, 741 
 vendor may of right remove ob- 
 
 iections, 743 
 unless he has no colorable title, 743 
 existence of incumbrances imma- 
 terial, 743 
 unless contract provides that they 
 shall be discharged before time 
 for completion, 743 
 purchaser should make objections 
 
 to title in time, 743 
 day fixed for performance usually 
 
 a formality, 743 
 rule where no time is fixed, 744 
 where purchase money is payable 
 
 in installments, 745 
 vendor must pay costs of suit, 745 
 injunction or ne exeat will not be 
 granted vendor, 745 
 
 Title, Bight to perfect the — Con. 
 
 vendor not obliged to perfect the 
 
 title at law, 746 
 after time fixed for completion of 
 
 the contract, 746 
 may perfect the title at any time 
 
 before decree, 746 
 especially if purchaser knew title 
 
 was defective, 747 
 but cannot have indefinite time, 
 
 748 
 exceptions to the general rule, 749 
 
 (1) where time is material, 749 
 
 (3) where the covenants are 
 mutual and dependent, 750 
 
 (3) where the vendor has acqui- 
 esced in purchaser's objec- 
 tions, 751 
 
 (4) where much loss and injury 
 would result to purchaser, 752 
 
 (5) where vendor has been 
 guilty of fraud, 753 
 
 (6) where vendor had no color- 
 able title, 754 
 
 (7) where vendor has been 
 guilty of laches, 757 
 
 (8) where contract stipulates for 
 rescission, 758 
 
 (9) where time is made matei-ial 
 by notice, 760 
 
 in what proceedings vendor may 
 exercise the right, 760 
 
 in suit for specific performance 
 by either party, 760 
 
 in suit to enjoin collection of pur- 
 chase money, 761 
 
 in certain suits at law, 761 
 reference of title to master in chan- 
 cery, 763 
 
 when title will be referred, 763 
 
 reference is a matter of right 
 when title is doubtful, 763 
 
 denied, where mere interest, such 
 as it might be, was sold, 763 
 
 and where the court is satisfied 
 about the title, 764 
 
 at what stage of the proceeding 
 reference directed, 764 
 
 procedure on reference, 765 
 
 costs of reference, how decreed, 
 765 
 interest on purchase money while 
 title is being perfected, 766 
 
 purchaser in most cases excused 
 from paying interest, 766 
 
 Tortious acts, 
 no breach of covenant of warranty, 336 
 except those of grantor or his agents, 
 338 
 
 Trust, Deed of. 
 
 sale under, when enjoined for defect 
 of title, 796 
 
848 
 
 INDEX. 
 
 [references are to pages.] 
 
 Trustee. 
 caveat emptor applies to sale by, 132 
 general covenants cannot t)e required 
 
 from, 153 
 title as dependent on power of, 725, n. 
 
 (Contee v. Lyons), 726, n 
 
 TJncultivated and. -waste lands. (See 
 Vacant Lands.) 
 
 Usual covenants. (See Covenants 
 FOB Title.) 
 
 Vacant and unoccupied land. 
 
 what is constructive eviction from, 347 
 
 Value. (SeelMPEOVEMENTS,DAMAaES.) 
 
 Vendor. (See Pukchasee.) 
 
 entitled to reasonable time in which 
 to prepare and tender deed, 15 
 
 when restrained from suing for pur- 
 chase money, 19, 778 
 
 what covenants may be required from, 
 143 
 
 must furnish abstract of title, 162 
 
 competency of, to be noted in exam- 
 ining title, 171, 181 
 
 duty to tender performance of con- 
 tract, 304 
 
 must disclose latent defects in the 
 title, 236 
 
 not bound to call attention to patent 
 defects, 340 
 
 may rescind on failure of title, when, 
 477, 548 
 
 must convey subsequently acquired 
 title, 493 
 
 may maintain ejectment against pur- 
 chaser, when, 587 
 
 has a right to perfect the title, when, 
 741 
 
 may require purchaser to take title 
 with compensation, when, 769 
 
 defenses of, to purchaser's application 
 for relief, 5, 9 
 
 Vendor's lien. 
 
 to be noted in examining title, 172, 177 
 
 Venue. 
 
 of certificate of acknowledgment, im- 
 portance of, 57 
 
 Voluntary conveyance. (See Vol- 
 unteers.) 
 title as dependent on notice of, 708 
 
 Volunteers. 
 
 deed will not be reformed in favor of, 
 546 
 
 Waiver. 
 
 of objections to deed, 73 
 
 Waiver of objections to title. 
 
 not necessarily a waiver of right to 
 compensation, 184 
 
 Waiver — Continued, 
 is an implication of law in most cases, 
 
 185 
 resale does not amount to waiver, 187 
 waiver by taking possession, 188 
 implied from laches of purchaser, 190 
 waiver by continuing negotiations 
 
 with vendor, 193 
 waiver in cases of fraud, 193 
 implied from purchase with notice of 
 
 defect, 194 
 none implied from absence of agree- 
 ment for covenants, 195 
 
 Want of title. (See Doubtful Title, 
 Title, Purchasek, Vendor.) 
 
 Warrantia cliartse. 
 
 writ of, no longer in use, 320 
 
 Warranty, Covenant of. 
 origin and form, 319 
 can be created only by deed, 830 
 is either general or special, 831 
 construction and effect, 322 
 includes the other covenants in some 
 
 States, 332 
 when does not include covenant 
 
 against incumbrances, 324 
 effect by way of estoppel or rebuttal. 
 
 (See Estoppel.) 
 not affected by notice of adverse claim, 
 
 324 
 want of consideration no defense to 
 
 action on, 335 
 Statute of Limitations begins to run, 
 
 335, 343 
 does not extend to quantity, 336 
 qualification and restrictions of, 337 
 
 express intention to restrict must 
 appear, 328 
 
 conveyance of "right, title and in- 
 terest " with warranty, 328 
 when implied, 329 
 
 in a lease, 330 
 
 in an exchange, 331 
 
 in partition, 331 
 
 none from recitals in a deed, 333 
 parties bound and benefited, 333 
 
 married women, 332 
 
 heirs and devisees, 333 
 
 joint covenantors, 834 
 
 bankrupts, 334 
 
 peisonal representatives and fidu- 
 ciaries, 335 
 who may sue for breach, 335 
 what constitutes breach, 336 
 
 not broken by tortious disturbance, 
 336 
 except by covenantor himself, 338 
 
 nor by exercise of eminent domain, 
 339 
 
 broken by eviction only, 341 
 
 entry by paramount claimant, 343 
 
 under legal process, 343 
 
INDEX. 
 
 849 
 
 [references are to pages.] 
 
 "Warranty, Covenant of— Continued, 
 under foreclosure of incumbrance, 
 
 344 
 constructive eviction, 345 
 inability to get possession, 845 
 vacant and unoccupied land, 347 
 surrender of possession, 348 
 judgment in ejection not an 
 
 eviction, 350 
 hostile assertion of adverse 
 
 claim, 351 
 must show paramount title in 
 surrenderee, 352 
 purchase of outstanding title, 353 
 covenantee must show that title 
 
 was paramount, 354 
 discharge of incumbrance to 
 prevent eviction, 355 
 loss of incorporeal hereditament, 358 
 existence of adverse easement, 358 
 runs Vidth land till eviction, 359 
 assignee after eviction, entitled, 
 
 when,, 360 
 equitable owner not entitled, 360 
 assignee may sue in his own name, 
 
 361 
 several actions against original 
 
 covenantor, 361 
 release of covenant by immediate 
 
 covenantee, 363 
 quit claim passes benefit of, 363 
 intermediate covenantee must have 
 
 been damnified, 364 
 remote assignee may sue original 
 
 covenantor, 366 
 mortgagee entitled to benefit of, 367 
 original covenantor must have been 
 
 actually seized, 368 
 nominal grantor joining for con- 
 formity not liable to assignee, 
 370 
 assignee not affected by equities of 
 
 covenantor, 370 
 covenant extinguished by recon- 
 veyance to grantor, 371 
 pleadings in suit by assignee, 371 
 measure of damages, 373 
 in most States is consideration 
 
 money, 373 
 value at time of eviction is. in New 
 
 England States, 373, 879 
 exception to general rulein case of 
 
 mortgage, 374 
 no allowance for improvements, 
 
 375, 398 
 not aggravated by grantor's fraud, 
 but actual damages may be given 
 in action for deceit, 376 
 is value at time of contract and not 
 
 time of conveyance, 877 
 nominal only against nominal 
 grantor, 377 
 and against mere voluntary 
 grantor, 377 
 
 107 
 
 Warranty, Covenant of — Continued, 
 purpose of purchase immaterial on 
 
 question of, 378 
 governed by lex loci contractu, 378 
 on collateral contract to remove in- 
 cumbrance, 379 
 failure of grantee to take possession 
 
 does not affect, 379 
 where purchase money is unpaid, 
 
 379 
 in favor of assignee, 382 
 true consideration may be shown, 
 383 
 stated in deed prima facie evi- 
 dence only, 383 
 where none stated, 384 
 where not paid in money, 384 
 agreement for non-liability inad- 
 missible, 384 
 where covenantee buys in para- 
 mount title, 384 
 can recover only amount so paid, 
 385 
 except where premises were 
 public lands, 386 
 and necessary expenses there- 
 with incurred, 385 
 must show that title was para- 
 mount, 886 
 refusal to buy in immaterial on 
 question of, 886 
 on eviction from leased premises, 
 386 
 actual value of residue of term, 
 
 887 
 where lessee liable for mesne 
 profits. 388 
 on eviction from part of premises, 
 389 
 relative and not average value of 
 
 part lost, 389 
 loss of part no ground for re- 
 scission, 391 
 where grantor had only a, life 
 
 estate, 391 
 burden on plaintiff to show rela- 
 tive value, 893 
 where premises are subject to ease- 
 ment, 893 
 interest as element of damages, 393 
 as governed by liability for mesne 
 
 profits, 394 
 runs from time of purchase, 396 
 costs in suits by adverse claimant 
 as element of damage, 896 
 where notice of suit has been 
 
 given, 396 
 conflict of authority on this ques- 
 tion, 397 
 refused, unless plaintiff has been 
 
 evicted, 398 
 other cases in which, refused, 398 
 special agreement to indemnify 
 not merged in deed, 399 
 
850 
 
 INDEX. 
 [references are to pages.] 
 
 Warranty, Covenant of — Continued, 
 grantee need not show previous 
 demand for reimbursement, 399 
 counsel fees and expenses as ele- 
 ments of damage, 399 
 conflict of authority on this 
 
 point, 400 
 as dependent on notice and re- 
 quest to defend, 400 
 notice to defend or prosecute eject- 
 ment, 403 
 if given relieves covenantee from 
 showing recovery under para- 
 mount title, 402 
 denied in North Carolina, 403 
 concludes covenantor from disput- 
 ing title of evictor, 404 
 unless derived from covenantee 
 himself, 405 
 should be given to covenantee him- 
 self, 405 
 to agent for collection of pur- 
 chase money insufficient, 405 
 is nugatory in case of actual collu- 
 sion, 405 
 right of covenantor to new trial, 
 
 406 
 must be unequivocal, certain and 
 
 explicit, 406 
 mere knowledge of action insuffi- 
 cient, 406 
 effect of notice to prosecute eject- 
 ment, 406 
 no particular form of, necessary, 
 
 407 
 need not be in writing, 407 
 if not given, judgment not even 
 prima facie evidence of title, 408 
 must be given in reasonable time, 
 
 408 
 fact of, is question for jury, 409 
 sufficiency of, is question for court, 
 
 409 
 not indispensable to recovery on 
 warranty, 409 
 
 Warranty, Covenant of — Continued, 
 merely dispenses with proof of title 
 in evictor, 409 
 but covenantee must always 
 show that such title was not 
 derived from himself, 410 
 pleadings in action for breach of war- 
 ranty, 411 
 covenant must be set out in sub- 
 stance, 411 
 eviction by one having lawful right 
 
 must be averred, 411 
 not sufficient merely to negative 
 
 words of covenant, 411 
 but nature of eviction need not be 
 
 alleged, 413 
 title of evictor need not be set 
 
 forth. 412 
 reliance on warranty need not be 
 
 alleged, 412 
 
 must aver that title of evictor was 
 
 older than that conveyed, 412 
 
 unless warranty was limited to 
 
 claims of a particular person,412 
 
 notice and request to defend need 
 
 not be averred, 413 
 must aver that title of evictor was 
 within the covenant, 413 
 burden of proof lies on plaintiff, 414 
 but shifts under certain circum- 
 stances, 414 
 warranty is proven by the deed, 
 without proof of execution, 414 
 detention of purchase money on 
 breach of, 420. (See Pu.bcha8k 
 Monet.) 
 
 Will. 
 
 objections to title apparent on face 
 
 of, 173 
 mistake in, cannot be corrected, 530 
 questions of title arising on construc- 
 tion of, 733 
 
 Words of conveyance. 
 
 indispensable in deed. (See Deed.') 
 
 Whole Numbee of Pages, 918. 
 

 KP 665 Ml^5 
 
 
 Author Vol. 
 
 Maupin, caiapman White 
 
 
 "^ Marketable title to real estsfEe 
 
 
 
 
 
 Date 
 
 Borrower's Name 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
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