CHAPTER XVIII.

OF THE WANT OF A GOOD TITLE.

§ 859. Where the vendor of land sues the purchaser for a specific performance of the contract, the defendant is entitled to have the action dismissed, if it appear that the plaintiff cannot make out to the land a title free from reasonable doubt.' The defendant may have the action thus dismissed at the trial, provided the defect in title has been prominently put forward in the pleadings, and the court can then decide the question, (a) or even where the objection appears on the evidence at the trial, and is a different objection from that on which the defendant had relied. (b) But the question more usually arises after the reference to title has been made."

(a) Lucas v. James, 7 Ha., 418, 425.

(b) Baskcomb v. Phillips, 29 L. J. Ch., 380; 6 Sur. N. S., 363.

1 Watts v. Waddle, 1 McLean, 200; Bates v. Delavan, 5 Paige, 299; Gans v. Renshaw, Barr., 34; Fitzpatrick v. Featherstone, 3 Ala., 40; Beckwith v. Kouns, 6 B. Monr., 422; Owings v. Baldwin, 8 Gill., 337. And it is not necessary that the vendee should stipulate in the contract that a covenant of warranty shall be inserted in his deed. This will be presumed, unless the vendee expressly takes the risk of title. Bates v. Delavan, 5 Paige, 279. An agreement to give good and sufficient deeds to lands, must be construed to mean deeds in fee simple. New Barbadoes Toll Bridge v. Vreeland, 3 Green's Ch., 157. It is sufficient if the vendor is able to make a good title at any time before the decree is pronounced, although he had not a good title when the contract was made. Hepburn v. Auld, 5 Cranch, 262, 275; Finley v. Lynch, 3 Bibb., 366; Seymour v. Delancey, 3 Cowen, 445; Pierce v. Nichols, 1 Paige, 244; Cotun v. Ward, 3 Monr., 304; Baldwin v. Salter, 8 Paige, 473; Dutch Church v. Mott, 7 id., 78; Poole v. Shergold, 2 Bro. C. C., 119. An exception to this rule is where a contract is made in bad faith by one who knows that he has neither title nor the legal or equitable means of acquiring one. Moss v. Hanson, 17 Penn. (5 Harris), 379.

Excess or deficiency of real estate sold.] Where there is no designated quantity, and the estate is sold in gross, a party can have no relief in equity either for an excess or deficiency. The case must, of course, be devoid of fraud. Kent v. Carcand, 17 Md., 291; Gilman v. Hincle, 8 W. Va., 262; Foley v. McKeown, 4 Leigh, 678. Where the land was sold by the acre, the number sold must be found. Wilson v. Randall, 67 N. Y., 338. Where the estate sold is described by boundaries, or equivalent words to more or less are used, such a statement will control a statement as to boundary or quantity, and a surplus or deficiency will not be a sufficient reason for relief at equity, unless there is such great variation as to give rise to the presumption of gross fraud or mistake. Stebbins v. Eddy, 4 Mason, 414; Marvin v. Bennett, 8 Paige's Ch., 312;

§ 860. The old practice of the court of chancery, in all cases of dispute as to the title of the estate sold, was to decide either for or against the validity of the title, and either to compel the purchaser to take it as good, or to dis

Winch v. Winchester, 1 Ves. & B., 375; Stull v. Hurst, 9 Gill.. 446; Morris Canal Co v. Emmett, 9 Paige's Ch., 168; Ketchum v. Stout, 20 Ohio, 453; Faure v. Martin, 3 Seld., 210; Noble v. Goggins, 99 Mass, 231. In Hudson v. Hudson, 64 Ga., 513, it was held, that although the contract described the estate as containing one hundred acres more or less, yet the vendee was entitled to no abatement, notwithstanding a deficiency was discovered of thirty-six

acres.

Equity will not
real property,
He must be the
Lay v. Huber,

Where real property is sold, the vendor must give a good title.] decree specific performance of a contract for the purchase of where the vendor, for any reason, cannot give a perfect title. owner, and he must have the legal or equitable right to convey. 3 Watts, 367; Garnett v. Macon, 2 Brock., 185; Fitzpatrick v. Featherstone, 3 Ala., 40; Pipkin v. James, 1 Humph., 325; Hurley v. Brown, 98 Mass., 545; Morgan v. Morgan, 2 Wheat, 290; Tomlin v. McChord, 5 J. J. Marsh., 135; Owings v. Baldwin, 8 Gill., 337; Stevenson v. Buckstone, 15 Abb. Pr, 352; Nicol v. Carr, 35 Pa. St., 381. It makes no difference that the land has been sold under a decree of the court, if the title is imperfect. Coster v. Clark, 3 Edm.'s Ch., 428. An injunction against collecting the purchase price was granted until the title should be made perfect, in a case where the vendor frauduently represented that he had an absolute title. Hinkle v. Margerum, 50 Ind., 240; Davis v. Perkins, 40 Iowa, 82. Where a party holding the legal title, sold for a valuable consideration, it was held, that his vendee, without notice of outstanding equities, took the property divested of such equities. Farmers' Nat. Bank v. Fletcher, 44 Iowa, 252. In order that the vendor shall maintain a decree for specific performance, he must show, to a moral certainty, that the vendee will receive such a title as he contracted for. Hinckley v. Smith, 51 N. Y., 21; Welsh v. Barton, 24 Ohio St., 28. Real property was scld at auction, warranted free from incumbrance, and a vendee paid full value for the property. Held, that where he afterwards discovered that there were mortgages upon it, he was not bound to retain the property. Mayer v. Adrian, 77 N. C., 83.

Specific performance will not be decreed where the title is doubtful.] The court said in Dobbs v. Norcross, 24 N. J. Eq., 327. "Every purchaser of land has a right to demand a title, which shall protect him from anxiety, lest annoying, if not successful, suits be brought against him, and probably take from him, or his representatives, land upon which money was invested. He should have a title which should enable him not only to hold his land, but to hold it in peace, and, if he wishes to sell it, to be reasonably sure that no flaw or doubt will come up to disturb its marketable value " See, also, Pyrke v. Waddington, 10 Hare. 1; Sturtevant v. Jaques, 14 Allen, 525; Griffin v. Cunningham, 19 Gratt, 571; Richmond v. Gray, 3 Allen, 25; Voorhies v. De Myer 3 Sandf.'s Ch., 614;. Swayne v. Lyon, 67 Pa. St., 436; Smith v. Turner, 50 Ind., 367; Jeffreys v. Jeffreys, 117 Mass., 184. Lord Eldon, Chancelor, said in Stapylton v. Scott, 16 Ves., 272, that the doubt, in order to prevent specific performance, must be "considerable and rational, such as would and ought to induce a prudent man to pause and hesitate; not based on captious, frivolous and astute niceties, but such as produce real bona fide hesitation in the mind of the chancellor." See Kostenbader v. Spotts, 80 Pa. St., 430.

Long continued naked possession, specific performance.] Specific performance will not be decreed, and a purchaser compelled to accept the title, which rests. merely in naked possesion; even twenty years uninterrupted possession is not sufficient to raise the presumption of a conveyance. Cunningham v. Sharp, 11 Humph., 116; Lewis v. Herndon, 3 Litt., 358; Smith v. Hollenbeck, 57 Ill., 223; see, however, Stroher v. Dutton, 6 Phila., 185; Chapman v. Lee, 55 Ala.,

miss the bill on the score of its being bad. (c) But the case of Marlow v. Smith, (d) before Jekyll, M. R., followed by Shapland v. Smith, (e) before Lord Thurlow, established the practice of allowing a class of titles which, without affirming them to be bad, the court considered so doubtful as that it would not compel a purchaser to take them. (f)

§ 861. Lord Eldon, though feeling himself bound to adhere to this as an established rule, on more than one occasion expressed his dissent from it on principle, and bewailed the great mischiefs which had resulted from it.(g) But such expressions of opinion did not shake the rule: and it has been recognized by the House of Lords as one of the established rules of a court of equity.(h)

§ 862. Against the rule it has been urged that it is logically absurd, as well as practically injurious; for every title is good or bad, and if so, the court ought to know nothing of a doubtful title. For the rule it has been urged in effect that, having regard to the nature of an action for specific performance, the rule in question is necessary in point of practical justice, and correct in reasoning. 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 ;(i) and that doubts on the title on 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. (j) If, therefore, there be any reasonable chance that some third person may raise a question against the owner of the estate after the completion of the contract, the court may consider this to be a 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

(c) See 1 Bro. C. C., 76, n. (d) 2 P. Wms., 198.

(e) 1 Bro. C. C., 75. Lord Eldon was in the habit of treating this as the first case in which the later rule had prevailed: but in Sloper v. Fish, 2 V. & B., 149, Grant, M. R., referred to the earlier cases, and stated that the rule in question had been repeatedly acted on by Lord Hardwicke.

(f) See, also, Cooper v. Denne, 4 Bro. C. C,, 80, S. C, 1 Ves. Jun., 565; Sheffield v. Lord

good or bad, there must be

Mulgrave, 2 id, 526; Roake v. Kidd, 5 id., 647; Willcox v. Bellaers, T. & R. 491

(g) In Vancouver v. Bliss, 11 Ves., 465, and in Jerroise v. Duke of Northumberland, 1 J. & W., 568.

(h) See per Lord Westbury in Parker v. Tootal, 11 H. L. C, 158

(i) See per Jessel M. R., in Osborne to Rowlett, 13 Ch. D., 781.

(j) See per Turner, V. C., in Glass v. Rich. ardson, 9 Ha., 701.

many titles which the court cannot pronounce with certainty to belong to either of these categories in the absence of the parties interested in supporting both alternatives, and without having heard the evidence they might have to produce, and the arguments they might be able to urge: and it is in the absence of these parties that the question is generally agitated in proceedings for specific performance. The court, when fully informed, must know whether a title be good or bad; when partially informed, it often may and ought to doubt.'

§ 863. It is by no means easy to express what amount of doubt upon a point there must be, to induce the court to refuse specific performance: and this difficulty has been increased by the ebb and flow of judicial opinion and decision for and against the rule, which has characterized the cases of the last quarter of a century. One mode of measuring the doubt has been by applying the question, whether it is such a title as that the judge himself would lend his own money upon it. The court "has almost gone the length," said Lord Eldon, "of saying that unless it is so confident that if it had £95,000 to lay out on such an occasion, it would not hesitate to trust its own money on the title, it would not compel a purchaser to take it."(k)

§ 861. In another case, Lord Eldon put the question for the court as being, "whether the doubt is so reasonable and fair, that the property is left in his (the purchaser's) hands not marketable: "(7) but a marketable title being "one which, so far as its antecedents are concerned, may at all times and under all circumstances be forced on an unwilling purchaser," (m) the observation seems not much to assist us in measuring how great the doubt must be.

§ 865. It was formerly held that, though the court might entertain an opinion in favor of the title, yet if it were satisfied that that opinion might fairly and reasonably be ques

(A) In Jervoise v. Duke of Northumberland, 1 J. & W., 569. See, also, Sheffield v. Lord Mulgrave, 2 Ves. Jun., 526; per Tur. ner, V. C., in Pyrke v. Waddingham, 10 Ha.,9.

(7) In Lord Braybroke v. Inskip, 8 Ves., 428.

(m) Per Turner, V. C., in Pyrke v. Waddingham, 10 Ha., 8.

1 It has repeatedly been decided that equity will not compel a vendee to take a doubtful title. Butler v. O'Hear, 1 Des., 382; Lewis v. Herndon, 3 Litt., 158; Kelly v. Bradford, 3 Bibb, 317; Seymour v Delancey, 1 Hop., 436; Young v. Lillard, 1 Marsh., 482; Morgan v. Morgan, 2 Wheat., 290; Longworth v. Taylor, 1 McLean, 200.

tioned by other competent persons, it would refuse specific performance. Thus, in a case before Leach, V. C., he expressed the strong inclination of his opinion to be in favor of the title, and yet refused the relief sought by the plaintiff;(n) and in the case of Pyrke v. Waddingham, (o) in which Turner, V. C., discussed the subject now before us, he expressed an opinion in favor of the title, but, nevertheless, dismissed the vendor's bill, with costs. For this reason it was held that the court would not force a title on a purchaser in opposition to the decision of another court, though it might think that decision to be wrong. (p) Accordingly, the court of appeal in chancery in one case dismissed an appeal, though thinking the title good, on the ground of the opinion of the judge below :(9) though the same measure of deference was not extended to the opinion of a conveyancing counsel of the court. (r)

§ 866. But these cases cannot now be relied on; for, since the case of Pyrke v. Waddingham, there have been something like a reaction against that case, and a tendency to lessen the area of doubt as regards titles.

The very same title which Turner, V. C., refused to force on a purchaser in Pyrke v. Waddingham, was forced on another purchaser by Lord Romilly, M. R., not on the ground that the principles laid down in that case were erroneous, but that they did not justify the decision. (s)

§ 867. And so as regards the decision of an inferior court; the judges of the court of appeal have held that they are in no wise bound by such decision, and that where they consider that there is no reasonable doubt, the adverse decision of the inferior court will not be a sufficient reason to refuse the plaintiff relief. (t)

§ 868. "With respect to the common cases of doubtful title," said Lord St. Leonards, "I cannot agree with the proposition, that an unfavorable decision in the court of inferior jurisdiction renders the title doubtful. The judge

(n) Price v. Strange, 6 Mad., 159, 164.

pendens), and Wrigley v. Sykes, 21 Beav., (0) 10 Ha., 1; cf. Rogers v. Waterhouse, 4 337. See, also, Highgate Archway Co. v. Drew, 329.

(p) Rose v. Calland, 5 Ves.. 186.

(9) Collier v. McBean, L. R.1 Ch., 81; and see Hamilton v. Buckmaster, L. R. 3 Eq.,323. (r) Hamilton v. Buckmaster, L. R. 3 Eq., 323.

(8) Mullings v. Trinder, L. R. 10 Eq., 449. See, also, Bull v. Hutchens, 32 Beav., 615 (lis

Jeakes, L. R. 12 Eq., 9; Bell v. Holtby, id., 193; Austin v Tawney, L. R. 2 Ch., 143; Osborne to Rowlett, 13 Ch. D., 774, 781; Wise v. Piper, id., 848, 855.

(t) Befoley v Carter, L. R. 4 Ch. 230; Alexander v. Mills, id. 6 Ch., 124; Radford v. Willis, id. 7 Ch., 7, reversing S. C., L. R. 12 Eq., 105.