or mortgaged to a person of reasonable prudence as a security for the loan of money. A purchaser will not generally be compelled to take a title when there is a defect in the

with firm property, and that the lot, at the time of the recovery of the judgment, although the title thereof stood in the name of Guion, was in fact, as between him and the firm, the property of the firm; and they there-record title which can be cured only by a refore contend that the judgment never became a lien on the lot, and that the title tendered to the plaintiff in performance of their contract was in fact perfect.

The defendants attempted to get Barnes to release the lien of his judgment upon the lot, but he refused to do so, and it still remains an apparent lien thereon. There is no record or document which precludes Barnes from enforcing his judgment against the lot. The recitals in the deed of Guion to these defendants do not bind him, and are not evidence against him, a prior incumbrancer. All the evidence to defeat his lien rests in parol, and depends upon the memory of living witnesses. Whenever Barnes attempts to enforce his lien against the lot, he can be defeated only by a resort to the evidence of such witnesses who may then be dead or inaccessible. He may, at any time within 10 years, issue execution upon his judgment and sell the lot, and after the lapse of many years the purchaser at the execution sale may bring an action of ejectment to recover the lot, and the burden would be upon the defendant in that suit to establish, by the parol evidence, the invalidity of the title of such purchaser.

In

sort to parol evidence, or when there is an apparent incumbrance which can be removed. or defeated only by such evidence; and, so far as there are any exceptions to this rule, they are extraordinary cases, in which it is very clear that the purchaser can suffer no harm from the defect or incumbrance. Swayne v. Lyon, 67 Pa. St. 436, SHARSWOOD, J., said: "It has been well and wisely settled that, under a contract for the sale of real estate, the vendee has the right, not merely to have conveyed to him a good title, but an indubitable title. Only such a title is deemed marketable; for otherwise the purchaser may be buying a lawsuit which will be a very serious loss to him both of time and money, even if he ultimately succeeds. Hence it has been often held that a title is not marketable when it exposes the party holding it to litigation." In Dobbs v. Norcross, 24 N. J. Eq. 327, it was held that "every purchaser of land has a right to demand a title which shall put him in all reasonable security, and 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 shall 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."

We will assume that the lot, while the title stood in the name of Guion, actually belonged to the firm of Williams & Guion; that thus the defendants actually had a good title to the lot; and that the judgment was not in fact a lien thereon. But is a purchaser bound If the plaintiff had been a purchaser at a to take a title which he can defend only by judicial sale, and this had been a proceeding a resort to parol evidence, which time, death, against him to compel him to take the title, or some other casualty may place beyond his or a proceeding by him to be relieved from reach? By the express terms of the contract his purchase, and to have his deposit refundof sale the plaintiff was entitled to a deed ed, it cannot be doubted that the title would conveying and assuring to him the lot in fee- have been held so defective or doubtful that simple; and, by a fair construction of the the court would have granted him relief. language used, we think he was entitled to Jordan v. Poillon, 77 N. Y. 518; Fleming v. the lot free from any incumbrance except the Burnham, 100 N. Y. 1, 2 N. E. Rep. 905; mortgage specified. The express stipulation Toole v. Toole, 112 N. Y. 333, 19 N. E. Rep. that he was to take the lot subject to an 682; Ferry v. Sampson, 112 N. Y. 415, 20 N. incumbrance specified shows that in the E. Rep. 387. If the vendors here had brought minds of the parties there was to be no other an action against the vendee to compel speincumbrance upon the lot. But, aside from cific performance of this contract, it is equalthe language used in the contract, it is fa- ly clear that they would have failed in the miliar law that an agreement to make a good action. The court would not compel the ventitle is always implied in executory contracts dee to take the title with the cloud of this infor the sale of land, and that a purchaser is cumbrance resting thereon. Marlow v. never bound to accept a defective title, unless Smith, 2 P. Wms. 201; Sloper v. Fish, 2 Ves. he expressly stipulates to take such title & B. 149; Shapland v. Smith, 1 Brown, Ch. knowing its defects. His right to an indis-75; Jeffries v. Jeffries, 117 Mass. 184; Seyputable title clear of defects and incumbrances does not depend upon the agreement of the parties, but is given by the law. Sugd. Vend. (13th Ed.) 14; Rawle, Cov. 430; Burwell v. Jackson, 9 N. Y. 535; Delavan v. Duncan, 49 N. Y. 485. Within the meaning of this sale, at least according to the decisions in this state, a good title means, not merely a title valid in fact, but a marketable title, which can again be sold to a reasonable purchaser,

mour v. De Lancey, Hopk. Ch. 436; Hinckley v. Smith, 51 N. Y. 21; Freetly v. Barnhart, 51 Pa. St. 279; 3 Pom. Eq. Jur. § 1405. But this is an action at law, and it has sometimes been held that the distinction between good and marketable titles is peculiar to courts of equity; that it is unknown in courts of law; and that there the question is, simply, is the title good or bad? The earlie t case which has come to our attention holding

such a doctrine is Romilly v. James, 6 this was such a title as a vendee has a right Taunt. 274, (decided in 1815.) That was an to expect, and which would justify him in action to recover back the deposit paid on a concluding the purchase. We think that, contract for the purchase of lands, upon the where a question arises between parties who alleged insufficiency of the title tendered, and are about to enter into the relationship of there GIBBS, C. J., said: "It is said that the vendor and vendee, as to the meaning of a plaintiff will have made out his claim to re- good or sufficient title, there must be such a cover back his deposit if a cloud is cast on title as the court of chancery would adopt as the title. That is not so in a court of law. a sufficient ground for compelling specific He must stand by the judgment of the court performance." as they find the title to be, whether good or In Simmons v. Heseltine, 5 C. B. (N. S.) bad; and, if it be good in the judgment of a 555, decided in 1858, after the thirteenth edicourt of law, he cannot recover back his de- tion of Sugden on Vendors was published, it posit. If he had gone into a court of equity, was held that, when the ability of the vendor it might have been otherwise. I know a to make a good title to a purchaser of the court of equity often says: This is a title premises sold depends upon a doubtful queswhich, though we think it available, is not tion of fact or of law, the title will not be one which we will compel an unwilling pur- deemed a good or sufficient title as between chaser to take;' but that distinction is not vendor and vendee. There A. bought cerknown in a court of law." In that case, tain premises, the description of which in the however, there was no question of fact de- particulars included a stall, which was pending upon parol evidence. The sole ques- claimed by the purchaser of the adjoining tion was one of law,-whether a devisee took house under the same vendor, and it was a defeasible fee-simple with an executory de- doubtful as a matter of fact whether the devise over, or an estate tail; and the court scription had been corrected at the time of held that he took an estate tail, and that the sale to A. so as to exclude the stall, and, therefore the vendor could, as matter of law, as a matter of law, whether the stall was inmake a good title. The vendor clearly had cluded in the conveyance to the purchaser of such a title as a court of equity would now the adjoining premises; and a court of equity compel a purchaser to take. In Sugd. Vend. had refused to decree specific performance (13th Ed.) 332, it is said: "A court of law against A., and it was held that A. was encan of course decide upon the validity of a titled to receive back his deposit and interest, title, however ambiguous or doubtful the and the expenses of investigating the title in construction may appear to be. Whether an action at law against the vendor. So we courts of law were at liberty to follow in the do not perceive how it can be said that the footsteps of equity, and to hold that a title law has been finally settled in England acmay be too doubtful to be forced on a pur-cording to the text of Sugden. chaser, is a question upon which eminent In this state, in O'Reilly v. King, 2 Rob. judges have differed with each other and even (N. Y.) 587; Church Home v. Thompson, with themselves. But it appears to be ulti- 52 N. Y. Super. Ct. 321; Bayliss v. Stimson, mately settled that courts of law cannot 53 N. Y. Super. Ct. 225, the New York supeadopt the equitable rule, and are bound to rior court held that, in an action by a vendee decide the legal question upon which the of real estate against the vendor to recover right to recover must depend." The learned back a deposit made on account of the purauthor here evidently had in mind titles de- chase price, it was not sufficient for him to pending upon disputed questions of law, show that the title tendered was doubtful, which a court of law could certainly and but that he was bound to show that it was in finally solve, but not titles depending upon fact bad, and that the doctrine of equity questions of fact to be solved by parol evi- courts as to marketable titles had no applicadence of witnesses, and which, in the absence tion. The latter case was affirmed in this of the parties to be bound, could never be court, not upon the law, however, as ansaid to be finally settled; and he cites, as au- nounced in the court below, but upon the thority that a purchaser will be entitled to a ground that the objections to the title were marketable title at law, Hartley v. Pehall, baseless. There is also some countenance Peake, 131; Wilde v. Fort, 4 Taunt. 334; for the doctrine of the superior court cases Curling v. Shuttleworth, 6 Bing. 121; and cited in the opinion of FOLGER, J., in Muras authority that he is entitled at law to only ray v. Harway, 56 N. Y. 337. There, howa good title, although not marketable, Boy-ever, the learned judge was of opinion that man v. Gutch, 7 Bing. 379; Oxenden v. Skinner, 4 Gwil. Title Cas. 1573; Maberley v. Robins, 5 Taunt. 625; Romilly v. James, 6 Taunt. 274.

In Jeakes v. White, 6 Exch. 873, decided in 1851, the action was brought to recover the expenses incurred by the plaintiffs in investigating the defendant's title to mortgage certain lands, and the plaintiffs recovered. POLLOCK, C. B., writing the opinion of the court, said: "The question really is, whether

upon the facts a court of equity would have adjudged specific performance against the vendee, and it is clear that whenever such is the case the vendee cannot, in a court of law, rescind the contract, and recover back a pay ment of purchase money. It has been settled in Pennsylvania that a vendee can defeat an action at law, brought by the vendor for an installment of purchase money under an executory contract for the sale of lands, by showing, not that the title tendered is act

ually bad, but that it is doubtful and unmarketable. Colwell v. Hamilton, 10 Watts, 413; Ludwick v. Huntzinger, 5 Watts & S. 51; Swayne v. Lyon, 67 Pa. St. 436.

In Allen v. Atkinson, 21 Mich. 351, an action at law, COOLEY, J., said: "The vendee had an undoubted right to a good title, and to a deed with proper covenants; and he had a right also to insist that the title should be a marketable one, not open to reasonable objection."

Why should a purchaser be compelled to pay for a title which he is not bound to take? If a vendee who has paid part of the purchase money sues to recover it back because the title tendered to him is unmarketable, the vendor in the same action can set up as an equitable defense or counter-claim a cause of action for the specific performance of the contract, (Moser v. Cochrane, 107 N. Y. 35, 13 N. E. Rep. 442;) and it would be quite an absurd administration of the law if the same court, at the same time, and upon the same evidence, should deny the defendant specific performance, on the ground that his title was doubtful and unmarketable, and yet permit him to retain the purchase money because his title was in fact good, although doubtful and unmarketable.

The case of Church Home v. Thompson, supra, came to this court and the judgment was here affirmed upon the facts, (108 N. Y. 618, 15 N. E. Rep. 193;) but the doctrine of the superior court cases above cited, as well as that of Romilly v. James, supra, was distinctly repudiated. PECKHAM, J., writing the opinion, here said: "We disagree with Dealings in real estate generally involve the court at general term upon the necessity large pecuniary values, and large amounts in such a case as this of showing that the are frequently invested in buildings and othtitle is absolutely bad. We think that if er improvements. The law is such that an there were a reasonable doubt as to the ven- adverse claim need not be asserted for many dor's title, such as to affect the value of the years, until after time has closed the mouths property, and to interfere with the sale of of living witnesses and destroyed ancient the land to a reasonable purchaser, the plain- muniments of title. For many purposes a tiff's cause of action would be sustained." doubtful title is a worthless title. Hence it While what was thus said was not necessary is generally the expectation of vendees, ento the decision of that case, it is more than a tering into executory contracts for the purmere dictum. The opinion, concurred in by chase of land, that they will receive a good the entire court, was written to set right title not only, but one free from reasonable what was deemed an erroneous view of the doubt and damaging infirmity; and such a law taken in the court below, and which title it must be assumed that every fair, honmight otherwise have been supposed, from est vendor expects to give, unless he is freed the opinion or the judgment, to have received from the obligation by some express stipulathe approval of this court. It has sometimes tion in the contract; and this understanding been said that the reason why a court of should be respected and enforced by both equity will not compel an unwilling vendee courts of law and of equity. As said by SELof real estate to take a title, which, although DEN, J., in Burwell v. Jackson, 9 N. Y. 535: good, is not marketable, is that such a court "Executory agreements for the purchase of is not competent to decide, or is, at least, un- lands are frequently made under circumwilling to decide, doubtful questions of law stances which afford neither time nor opporand fact in such cases, at the hazard of what tunity for a thorough examination, and the might afterwards be determined in a court purchaser cannot be presumed, prior to enof law. Rawle, Cov. 433, note. Courts of tering into such an agreement, to have inlaw, with jurors as triers of the issues of vestigated the title." He pays his money in fact, were deemed more competent than reliance upon the understanding that he is courts of equity to solve the doubts; but, to have a title both good and marketable, and, whatever foundation the reason may once if the vendor does not tender him such a title, have had, it has none now in this state, since there is absolutely no reason why he should the union of law and equity in the same not receive back the money paid, and he courts, and since equitable defenses can be should not be compelled to take an unmarset up in legal actions. Courts, in equitable ketable title at the peril of losing what he has actions, are just as competent here to deal paid. Take the case where a vendee has with both the law and the facts of a case as made an executory contract of sale, paid the they are in legal actions. If the conscience entire purchase price, and the vendor, at the of a judge in an equitable action needs in- time of performance by him, tenders a title formation, he can obtain the findings of a which, by the record, appears to be in anothjury by submitting the issues of fact to them. er, and yet where he can show by parol eviSo now there is no longer any reason what-dence a lost deed or will vesting him with ever for the distinction which some judges have made as to marketable titles in courts of law and equity. If a vendor cannot, by an action for specific performance, compel a vendee to take a conveyance of land because the title is doubtful and unmarketable, why should he be permitted to compel him, in an action at law, to pay for the land, both actions being triable in the same tribunal?

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the title,-shall the vendee be compelled to lose the money paid, or take an infirm and, for many purposes, a worthless title? It is true that even courts of equity have in some cases compelled purchasers to take title resting upon adverse possession; but in such cases the adverse possession was established beyond any reasonable doubt. It is a fact usually open and notorious, and generally

feet of curb-stones, and 10,125 square feet | the contractor. This sum was also voluntarily of flagging, as the quantities of the respect-paid to him by the city. In March, 1884, a ive kinds of work to be done. The contract further certificate for 2,000 additional cubic was advertised under proposals, which state yards of earth excavation and 800 yards of that, "as the above-mentioned quantities, rock excavation was made by the surveyor, though stated with as much accuracy as is netting $11,204.37 due to the contractor. possible in advance, are approximate only, The city refused to pay this amount, and suit bidders are required to submit their estimates was brought therefor by the contractor in the upon the following express conditions, which superior court of New York, which was deshall apply to and become part of every es- fended by the city. The answer therein extimate received: (1) Bidders must satisfy pressly admitted the excavation by Brady of themselves, by personal examination of the the 2,000 yards of earth, as claimed in the location of the proposed work, and by such complaint, and also the correctness of the other means as they may choose, as to the ac- previous certificates for 5,500 yards of simicuracy of the foregoing estinate, and shall lar excavation; but set up by way of defense not at any time after the submission of an that the contract was fraudulently obtained estimate dispute or complain of such state- by the contractor. A trial was had upon the ment, nor assert that there was any misun-issues thus joined, and judgment was renderstanding in regard to the depth of the ex- dered for the plaintiff, February 9, 1885, for cavation to be made or the nature or amount the amount claimed. This judgment was of the work to be done. The right of the voluntarily paid by the city in March, 1885. commissioner of public works to reject any In May, 1884, the surveyor gave a further or all bids which he might deem prejudicial certificate, stating that the amount of work to the public interests was expressly re- done since the date of his third certificate served. Thirteen bids were received in re- was 7,167 cubic yards of earth excavation, sponse to this advertisement, two-thirds of and other items, making a gross amount of which were what is known as "unbalanced $57,386.91. The payment of this claim was bids;" that is, bids naming an exorbitant refused by the city, and suit was brought price for some classes of work, and a greatly thereon by the contractor's assignee, Bernard inadequate compensation for others. Brady's Brady, in the superior court of New York, in bid named eight dollars per yard for earth June, 1885. An investigation of the claim excavation, one-fourth of a cent per yard for was then made by the city, and it concluded rock excavation, one-fourth of a cent per foot that it had no defense to the action. No anfor curbing, and one-fourth of a cent per foot swer or demurrer was interposed by the defor flagging. Several bids for earth excava- fendant, and judgment by default was taken tion largely exceeded Brady's; and others, al- by the plaintiff on August 21, 1885, for $37,though below it, exceeded a fair price there- 670.84. This judgment was also voluntarily for. Fair prices for this work were 40 cents paid by the city. A final certificate was exeper yard for earth excavation, $1.50 per cuted by the surveyor in September, 1885, yard for rock excavation, 70 cents per foot stating that the total amount of work perfor curb-stones, and 25 cents per square foot formed by the contractor was 14,667 cubic for flagging. Upon the engineer's esti- yards of earth excavation at $117,336; 10,831 mates, Brady was the lowest bidder, and the cubic yards of rock excavation at $27.07; contract was thereupon awarded to him. 2,5914 feet curbing at $6.47; 10,458 7-12 feet The specifications attached to the contract of flagging at $26.14; making a total cost of provided that "boulders, blasted rock, or $117,395.68, and leaving a balance unpaid of broken stone will not be allowed for as rock, $34,130.22. The city having refused to pay but must be included in the earth excavated, this balance, Bernard Brady, to whom the unless they are of a size to require blasting whole claim had been assigned, brought suit, in order to be removed, which fact will be in April, 1886, therefor in the superior court determined by the engineer. No soft or dis- of New York, claiming to recover, not only integrated rock that could be properly re- for the balance due upon said final certificate, moved with a pick will be allowed for as but also for 9,783 cubic feet of earth excavarock." The contract was executed in July, tion in addition thereto. The city defended 1883, and the work commenced in August the action, and set up the judgment of Authereafter, and continued for a period of gust, 1885, as a bar thereto; and, as a furabout one year. In September, 1883, the ther defense, "that the work of rock excavasurveyor certified that the contractor had ex- tion and earth excavation called for by the cavated 2,000 cubic yards of earth, and that contract was performed by the assignee of there was due him therefor $11,200, after the plaintiff in a wrongful and improper and deducting 30 per cent. authorized to be re- fraudulent manner, so that certain material tained by the contract. The city voluntarily which should have been classified and measpaid the contractor the sum appearing to be ured as rock was in fact classified and aldue upon this estimate. In October there- lowed to the plaintiff or his said assignor as after the surveyor made a further certificate earth." This action is still pending undefor 3,500 additional cubic yards of earth ex- termined. In August, 1886, the city moved, cavation and 1,000 yards of rock excavation, upon affidavits purporting to show frauds in amounting in all to $28,000, which, deduct- the execution of the work by the contractor, ing 30 per cent. thereon, left $19,601.75 due in the superior court, for an order setting