to make it unmarketable is a question of real property. The question is not whether the title is good or bad, but whether there is a reasonable doubt as to its validity."1 Aside from the merits of a possible controversy with a third person in regard to property contracted to be sold, a buyer will not be compelled to accept the title if litigation with an adverse claimant seems probable. As the matter is often put-the purchaser will not be compelled to buy a law suit.12 Any "distinction which once prevailed as to marketable titles between courts of law and equity no longer exists." 13 N. W. 1038, 67 Am. St. Rep. 432; Hedderly v. Johnson, 42 Minn. 443, 445, 44 N. W. 527; Scannell v. American Soda Fountain Co., 161 Mo. 606, 61 S. W. 889; Ocean City Assoc. v. Cresswell, 71 N. J. Eq. 292, 65 Atl. 454; Ottinger v. Strasburger, 33 Hun, 466, 102 N. Y. 692; Freedman v. Oppenheim, 187 N. Y. 101, 79 N. E. 841, 116 Am. St. Rep. 595; Clarke v. Wollpert, 128 N. Y. App. Div. 203, 112 N. Y. S. 547; Pratt v. Eby, 67 Pa. 396, 402; Dallmeyer v. Ferguson, 198 Pa. 288, 47 Atl. 962. See, however, contra— McCroskey v. Ladd (Cal.), 28 Pac. 216; Watson v. Boyle, 55 Wash. 141, 104 Pac. 147. 11 See cases in this section passim. 12 Pegler v. White, 33 Beav. 403; Hale v. Cravener, 128 Ill. 408, 21 N. E. 534; James v. Meyer, 41 La. Ann. 1100, 7 So. 618; Freetly v. Barnhart, 51 Pa. 279. See also Anderson v. Steinway, 221 N. Y. 639, 117 N. E. 575. In Wadick v. Mace, 118 N. Y. App. Div. 777, 103 N. Y. S. 889, the court said: "Although the fact that a title tendered may impose a law suit upon the vendee to establish the boundaries is not an incumbrance in a legal sense, the tender of such deed is not a compliance with a contract of sale requiring a 'proper deed' assuring the grantee a fee simple free from all incumbrances. A contract to give a 'proper deed' calis for a marketable title, which is defined as one free from reasonable doubt, and a title which must be defended by litigation is not free from doubt. When a vendor has agreed to convey by proper deed a title in fee simple free from all encumbrances by specific metes and bounds and it develops that by the bounds described access to other property of the vendor would be cut off, the vendee does not thereby lose his right to specific performance and is not in default by reason of a refusal to accept a deed which fails to set out the boundaries agreed upon. It seems, that under such circumstances a court of equity in the exercise of its discretion may not compel the execution of a deed which will cut off the grantor from access to other lands, but may order a reference to determine an equitable performance of the contract which will be fair to both parties." 13 Howe v. Coates, 97 Minn. 385, 107 N. W. 397, 4 L. R. A. (N. S.) 1170, 1178. To the same effect are Foster, Hall & Adams Co. v. Sayles, 213 Mass. 319, 321, 100 N. E. 644; Moore v. Williams, 115 N. Y. 586, 22 N. E. 233, 5 L. R. A. 654, 12 Am. St. Rep. 844; Brokaw v. Duffy, 165 N. Y. 391, 59 N. E. 196. But see Meyer v. Madreperla, 68 N. J. L. 258, 53 Atl. 477, 96 Am. St. Rep. 536. § 924. The vendor must prepare the deed. In England owing perhaps to the absence of a recording system, it is the duty of the vendor to furnish the purchaser with an abstract of the title.14 It is then the purchaser's duty to prepare a proper deed, and to tender it to the vendor for execution.15 In the United States, however, the records are open to public inspection and the purchaser may examine the title without the vendor's aid. Accordingly there is no obligation on the part of the vendor to furnish an abstract,16 unless, as is common in some States, the contract provides that the vendor shall furnish an abstract. And it is necessary for the vendor to prepare and execute a sufficient deed and to tender it in order to put the purchaser in default." The purchaser is entitled to a reasonable opportunity to inspect the deed before accepting it and paying his money. 18 § 925. Form of deed necessary to fulfil the contract. The parties may by their contract agree that conveyance shall be made by a deed with full warranties, with partial warranties, or with no warranty; and if a special stipulation of the sort is made its terms must be observed. Frequently, however, the form of the conveyance is not fixed by the contract. In the absence of a custom to the contrary, a deed 14 In re Johnson, 30 Ch. D. 42; In re Stamford, [1900] 1 Ch. 287. 15 Poole v. Hill, 6 M. & W. 835. 16 Easton v. Montgomery, 90 Cal. 307, 27 Pac. 280, 25 Am. St. Rep. 123; Knox v. McMurray, 159 Ia. 171, 140 N. W. 652; Espy v. Anderson, 14 Pa. St. 308, 311. Arledge v. Rooks, 22 Ark. 427; Headley v. Shaw, 39 Ill. 354; Hill v. Hobart, 16 Me. 164; Tinney v. Ashley, 15 Pick. 546, 26 Am. Dec. 620; St. Paul Division v. Brown, 9 Minn. 157; Leaird v. Smith, 44 N. Y. 618; Raudabaugh v. Hart, 61 Oh. St. 73, 87, 55 N. E. 214, 76 Am. St. Rep. 361; Boyd 7. McCullough, 137 Pa. 7 (s. c. sub nom. Johnson v. Hopwood, 20 Atl. 630); Walling v. Kinnard, 10 Tex. 508, 60 Am. Dec. 216; Seeley v. Howard, 13 Wis. 336. The power of equity in a suit for specific performance to allow the plaintiff, at any time prior to decree or in fulfilment of the decree to perform without prior tender is elsewhere considered. See supra, § 834. 18 Freetly v. Barnhart, 51 Pa. 279. In Papin v. Goodrich, 103 Ill. 86, it was held that the purchaser had no right to inspect the deed before payment, but this was because the court held (probably erroneously) that the purchaser was bound under the terms of the particular contract in suit to pay the instalment of the price in question before rather than concurrently with the conveyance. warranting only against acts of the grantor is sufficient to fulfil the vendor's obligation,19 but if a custom exists, a stipulation for a "conveyance" or of a "good and sufficient deed" in a contract, means such a deed as is customary in the locality." And if (as seems generally true) the customary mode of conveyance in that place is a deed with covenants of general warranty, the vendor must give such a deed since that is the meaning of his contract.21 A different rule is applicable if the vendor is a fiduciary. If an executor or trustee contracts to sell land in which he is interested only as such, it is unreasonable to expect, and therefore the purchaser has no right to expect, that the vendor will sign a deed imposing personal liability upon him for any acts except his own, as covenants of general warranty would do if he signed the deed even as a fiduciary.22 Therefore, in every jurisdiction the purchaser from an executor or trustee is entitled only to a covenant that the vendor has not himself encumbered the estate. 23 The rule in regard to other fiduciaries is the same.24 The case must be distinguished where a fiduciary was not a party to the original contract and the executor of the vendor undertakes to enforce a contract made by his testator. In such a case the purchaser, if entitled on a proper construction of his contract, under the local custom to a deed of general warranty, cannot be required to take 19 Kyle v. Kavanagh, 103 Mass. 356, 4 Am. Rep. 560; Thayer v. Torrey, 37 N. J. L. 339; Espy v. Anderson, 14 Pa. 308; Lloyd v. Farrell, 48 Pa. 73, 86 Am. Dec. 563. 20 Gault v. Van Zile, 37 Mich. 22; Wilson v. Wood, 2 C. E. Green, 216, 88 Am. Dec. 231. 21 Witter v. Biscoe, 13 Ark. 422; Clark v. Lyons, 25 Ill. 105; Linn v. Barkey, 7 Ind. 69; Vanada v. Hopkins, 1 J. J. Marsh. 293; Allen v. Hazen, 26 Mich. 143; Johnston v. Piper, 4 Minn. 195; Herryford v. Turner, 67 Mo. 296; Faircloth v. Isler, 75 N. C. 551; Hoback v. Kilgore, 26 Gratt. 442, 21 Am. Rep. 317; Tavenner v. Barrett, 21 W. Va. 656. See also Rhode v. Alley, 27 Tex. 443, 445. 22 See supra, §§ 310, 312. 23 Staines v. Morris, 1 Ves. & Beames, 810; Worley v. Frampton, 5 Hare, 560; Chastain v. Staley, 23 Ga. 26; Brackenridge v. Dawson, 7 Ind. 383; Dwinel v. Veazie, 36 Me. 509; Hodges v. Saunders, 17 Pick. 470; Barnard v. Duncan, 38 Mo. 170, 90 Am. Dec. 416; Ennis ". Leach, 1 Ired. Eq. 416; Shontz ". Brown, 27 Pa. 123, 134; Goddin v. Vaughn's Ex'x, 14 Gratt. 102. 24 This was so held in White v. Foljambe, 11 Ves. 337, 345, in regard to assignees in bankruptcy, and in Fleming v. Holt, 12 W. Va. 143, 162, in regard to trustees for creditors under a general assignment. anything less from the vendor's representative, and the executor must therefore give a covenant of warranty to the extent of the assets of the estate.25 It is even clearer than in the case of ordinary fiduciaries that officials empowered to sell under authority given by law, such as sheriffs or other officers, cannot be expected or required to give any warranty.26 And no covenant is implied from the words of grant in the deed of such an officer.27 Since the promise of A is different from the promise of B, a vendor who is bound to convey with even limited covenants of warranty cannot fulfil his obligation by tendering the deed of a third person.28 § 926. There are no implied warranties in sales of real estate. The doctrine of caveat emptor so far as the title of personal property is concerned, is very nearly abolished,29 but in the law of real estate it is still in full force. One who contracts to buy real estate may indeed refuse to complete the transaction if the vendor's title is bad,30 but one who accepts a deed generally has no remedy for defect of title except such as the covenants in his deed may give him.31 If therefore there are no covenants, he has no redress though he gets no title. He can neither sue on an implied warranty nor can he recover because of failure of consideration, the consideration which he paid.32 The defence of so severe a rule must rest on the 25 See Page v. Broom, 3 Beav. 36; Phillips v. Everard, 5 Sim. 102. The Monte Allegre, 9 Wheat. 616, 6 L. Ed. 174; Hoffeld v. United States, 186 U. S. 273, 276, 46 L. Ed. 1160; Corbitt v. Dawkins, 54 Ala. 282; Loudon v. Robertson, 5 Blackf. 276; Stephens v. Ells, 65 Mo. 456; Friedly v. Scheetz, 9 Serg. & R. 156, 11 Am. Dec. 691; Mitchell v. Pinckney, 13 S. C. 203. "Dow v. Lewis, 4 Gray, 468, 473. Rudd v. Savelli, 44 Ark. 145; Crabtree v. Levings, 53 Ill. 526; McMurray v. Fletcher, 24 Kan. 574; Williams v. Gilbert, 120 Minn. 299, 139 N. W. 502; Farm Land Mortgage Co. v. Wilde, 41 Okl. 45, 136 Pac. 1078. In Thomas J. Baird Inv. Co. v. Harris, 209 Fed. 291, 126 C. C. A. 217, the court erroneously ruled otherwise, apparently misled by the well-settled rule that one who has no title may contract to sell, into supposing that such a vendor need not acquire and transfer the title at the time for performance of the contract. 29 See infra, §§ 975 et seq. 31 Gihon v. Morris, (N. J L. 1919), 106 Atl. 807. 32 Clare v. Lamb, L. R. 10 C. P. 334; United States Bank v. Bank of Georgia, ground that in conveyances of land the parties habitually put their full agreement in the deed and that if it is intended that the vendor shall be responsible for defective title, a warranty is inserted.33 In exceptional cases where it appears that both parties entered into the transaction on the mistaken assumption, not regarded as doubtful, that the vendor had title, rescission is permitted, but the normal inference is that the purchaser assumes the risk of title except to the extent that he exacts covenants of warranty. Still more clearly there can be no warranty of quality or condition implied in the sale of real estate and ordinarily there cannot be in the lease of it.35 34 It is generally true also that any express agreements in regard to land contained in a contract to sell it are merged in the deed if the purchaser accepts a conveyance. If, indeed, the vendor has made misrepresentations, even innocently, rescission is possible in most jurisdictions; but no remedy is generally available for any breach by the vendor of any promise contained in the contract but omitted in the deed.37 10 Wheat. 333, 6 L. Ed. 423; Union Pacific Railway Co. v. Barnes, 64 Fed. 80, 12 C. C. A. 48; Corbitt v. Dawkins, 54 Ala. 282; McLeod v. Barnum, 131 Cal. 605, 63 Pac. 924; Barry v. Guild, 126 Ill. 439, 18 N. E. 759; Horner v. Lowe, 159 Ind. 406, 64 N. E. 218; Wightman v. Spoffard, 56 Iowa, 145, 8 N. W. 680; Thorkildsen v. Carpenter, 120 Mich. 419, 79 N. W. 636; Dorsey v. Jackman, 1 Serg. & R. 42, 7 Am. Dec. 611; Goldman v. Hadley (Tex. Civ. App.), 122 S. W. 282. 33 See also supra, § 700 ad fin. 34 See infra, § 1589. 35 See supra, § 892. 36 See infra, § 1500. 37 It is said in 1 Williams, Vendor & Purchaser (2d ed.), 611, "When the contract has been fully performed, the purchaser will not be entitled to any relief in respect thereof, except (1) by virtue of an express agreement contained in the contract to make compensation for such errors, or, (2) if the 36 defect be really a defect of title and compensation be recoverable under the covenants for title contained in the conveyance, or (3) if the representation amounted to a warranty, collateral to the contract for sale, of the truth of the fact stated." The only authority cited for the last proposition is De Lassalle v. Guildford, 1901, 2 K. B. 215. In that case the court held a lessor liable on a warranty that drains were in good condition given at the time the lease was accepted by the tenant, and as an inducement to him to accept it. In Franz v. Hansen, 36 D. L. R. 349, the contract contained the words: "Said land containing two hundred and seventy-one acres." The court held that the purchaser might recover damages for the failure of the land to contain so many acres even after conveyance had been made. It may be doubted whether this decision would generally be accepted. |