Cooley, J.
The action between these parties in the Court below was by Atkinson against Allen, for breach of a contract, by which the latter undertook to convey to the former a certain parcel of land. It is not disputed that Allen had the title to the land at the time of the contract and the breach, and that he might have complied with his contract had he seen fit to do so. The principal questions in the case are, first, — Whether he was excused from performance by the acts of Atkinson, and, if not, then, second, — In what damages he is liable for refusal. The Court below held him not excused, and that the damages were to be measured by the value of the land at the time of the breach; and this holding, as to damages, was unquestionably correct under the authorities, unless the case is taken out of the general rule by the special circumstances which the record discloses.
These special circumstances are the following: The sale was for $2,000, one-half payable down, and balance in one and two years. No time was fixed by the contract within which it was to be performed. On the day after its date, Allen, the vendor, went into the office of Atkinson for the purpose of executing a deed in fulfillment of his contract. Some conversation there took place between the parties in regard to the title, which is differently stated by them in their evidence, but the result was that Atkinson declined to take a conveyance until he had made an examination of the title, and Allen got angry and went off. It appears that the record at this time showed a mortgage upon the [360]*360land not discharged, and that the mortgagee, named therein, resided in another part of .the state. Within a month afterwards, Atkinson, having satisfied himself that the mortgage was actually paid, prepared the proper papers and tendered them to Allen for execution, at the same time tendering payment also of the one-half of the purchase money which was to be paid down. Allen refused at that time to perform the contract, and two or three months afterwards, sold and conveyed the land to one Pinkham for $2500, Atkinson having previously filed a bill against Allen for specific performance. Before Pinkham received his deed, however, Atkinson, at Pinkham’s request, made an arrangement with him, which was evidenced by a receipt in the following words: “Received of Geo. W. Pinkham $100, for which I waive my right to a specific performance of a contract dated July 20th, 1866, between myself and John Allen, and agree to look to John Allen personally for any damage resulting to me by reason of said contract. John Atkinson. Port Huron, November 30th, 1866.” And thereupon, the solicitor for Allen stipulated that Atkinson’s bill might be dismissed without prejudice, and it was dismissed accordingly, and the present suit instituted.
It is claimed on behalf of Allen that Atkinson waived his rights under the contract when he declined to make payment and receive the deed the day after the contract was entered into. This suggests the inquiry whether a vendee of lands, who has not stipulated for an abstract of title, or for a preliminary examination, is entitled to demand such an abstract, or at least to take time for such examination, before making payment.
The contract in the present case is in the following very concise form: “Memorandum of an agreement ipade the 20th day of July, 1866, between John Allen and John Atkinson, both of St. Clair County, witnesseth: That said [361]*361John Allen has this clay sold to the said.John Atkinson all that piece or parcel of land contained within the enclosure, on the corner of Seventh and Pine streets, for which the said John Atkinson is to pay the sum of two thousand dollars; $1000 down, and $1000 in two equal annual payments, with interest at ten per cent per annum.” Nothing is said here about the title, but the parties evidently assume that it is unquestionable, and negotiate on that basis.
I think it well settled in this country, where title deeds are recorded and open to the inspection of all parties, that when one contracts to sell and convey lands and the contract is silent concerning the title, it is to be assumed that the title is good, and that it devolves upon the vendee, if he questions it, to show the defect. Such was the opinion expressed by this Court in Dwight v. Cutler, 3 Mich., 566, 576, and the cases of Breithaupt v. Thurmond, 3 Rich., 216, and Brown v. Bellows, 4 Pick., 179, there relied upon, fully sustain this' decision. But the vendee had an undoubted right to a good title, and to a deed with proper covenants; Dwight v. Cutler, ut supra, and cases cited; and he had a right also to insist that the title should be a marketable one, not open to reasonable objection.—Freetly v. Barnhart, 51 Penn. St., 279.
Now, although in this case it is to be assumed, in the absence of any showing, that the title was good, and Atkinson had no right to demand time for investigation, yet when he shows an apparent encumbrance of record; the aspect of the case is changed, and the most that the vendor can insist upon is, that he shall satisfy himself within a reasonable time whether the apparent encumbrance 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 encumbered, and that the vendor should have a [362]*362right to demand the immediate performance of the contract by the vendee, when apparently his own deed would he 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.
The tender of performance by the vendee was made on the twentieth day of August, 1866, and the money was placed in the hands of a third person, to be paid over to Allen, in case he afterwards concluded to take it. It is objected that the tender is not shown to have been kept good, and that the money was not brought into court; but this was not essential. A right of action accrued the moment there was a breach by refusal to convey on demand accompanied by the proper tender; and the acceptance or non-acceptance of the money by Allen afterwards would only affect the amount of damages. If he accepted it, Atkinson would be entitled to recover it back, but in truth he had no right to take it except upon the condition of a simultaneous delivery of a deed.
It was also objected that the tender was insufficient, because not including interest for the month that had elapsed after the making of the contract. No objection was taken on this ground at the time, and I think it untenable now. The contract did not call for interest, but was to be performed in a reasonable time. That reasonable time would have been immediately, had no defect appeared in the title; but under the circumstances the delay was warranted, and it was not within the contemplation of the parties that interest should be paid so long as the vendee ¡was not in default. The tender, in my opinion, was all that was required.
[363]*363The remaining question is, whether the arrangement between Atkinson and Pinkham released Allen. Such was certainly not the intention of the parties, as is proved by the receipt given, and also by the stipulation for discontinuance.
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Cooley, J.
The action between these parties in the Court below was by Atkinson against Allen, for breach of a contract, by which the latter undertook to convey to the former a certain parcel of land. It is not disputed that Allen had the title to the land at the time of the contract and the breach, and that he might have complied with his contract had he seen fit to do so. The principal questions in the case are, first, — Whether he was excused from performance by the acts of Atkinson, and, if not, then, second, — In what damages he is liable for refusal. The Court below held him not excused, and that the damages were to be measured by the value of the land at the time of the breach; and this holding, as to damages, was unquestionably correct under the authorities, unless the case is taken out of the general rule by the special circumstances which the record discloses.
These special circumstances are the following: The sale was for $2,000, one-half payable down, and balance in one and two years. No time was fixed by the contract within which it was to be performed. On the day after its date, Allen, the vendor, went into the office of Atkinson for the purpose of executing a deed in fulfillment of his contract. Some conversation there took place between the parties in regard to the title, which is differently stated by them in their evidence, but the result was that Atkinson declined to take a conveyance until he had made an examination of the title, and Allen got angry and went off. It appears that the record at this time showed a mortgage upon the [360]*360land not discharged, and that the mortgagee, named therein, resided in another part of .the state. Within a month afterwards, Atkinson, having satisfied himself that the mortgage was actually paid, prepared the proper papers and tendered them to Allen for execution, at the same time tendering payment also of the one-half of the purchase money which was to be paid down. Allen refused at that time to perform the contract, and two or three months afterwards, sold and conveyed the land to one Pinkham for $2500, Atkinson having previously filed a bill against Allen for specific performance. Before Pinkham received his deed, however, Atkinson, at Pinkham’s request, made an arrangement with him, which was evidenced by a receipt in the following words: “Received of Geo. W. Pinkham $100, for which I waive my right to a specific performance of a contract dated July 20th, 1866, between myself and John Allen, and agree to look to John Allen personally for any damage resulting to me by reason of said contract. John Atkinson. Port Huron, November 30th, 1866.” And thereupon, the solicitor for Allen stipulated that Atkinson’s bill might be dismissed without prejudice, and it was dismissed accordingly, and the present suit instituted.
It is claimed on behalf of Allen that Atkinson waived his rights under the contract when he declined to make payment and receive the deed the day after the contract was entered into. This suggests the inquiry whether a vendee of lands, who has not stipulated for an abstract of title, or for a preliminary examination, is entitled to demand such an abstract, or at least to take time for such examination, before making payment.
The contract in the present case is in the following very concise form: “Memorandum of an agreement ipade the 20th day of July, 1866, between John Allen and John Atkinson, both of St. Clair County, witnesseth: That said [361]*361John Allen has this clay sold to the said.John Atkinson all that piece or parcel of land contained within the enclosure, on the corner of Seventh and Pine streets, for which the said John Atkinson is to pay the sum of two thousand dollars; $1000 down, and $1000 in two equal annual payments, with interest at ten per cent per annum.” Nothing is said here about the title, but the parties evidently assume that it is unquestionable, and negotiate on that basis.
I think it well settled in this country, where title deeds are recorded and open to the inspection of all parties, that when one contracts to sell and convey lands and the contract is silent concerning the title, it is to be assumed that the title is good, and that it devolves upon the vendee, if he questions it, to show the defect. Such was the opinion expressed by this Court in Dwight v. Cutler, 3 Mich., 566, 576, and the cases of Breithaupt v. Thurmond, 3 Rich., 216, and Brown v. Bellows, 4 Pick., 179, there relied upon, fully sustain this' decision. But the vendee had an undoubted right to a good title, and to a deed with proper covenants; Dwight v. Cutler, ut supra, and cases cited; and he had a right also to insist that the title should be a marketable one, not open to reasonable objection.—Freetly v. Barnhart, 51 Penn. St., 279.
Now, although in this case it is to be assumed, in the absence of any showing, that the title was good, and Atkinson had no right to demand time for investigation, yet when he shows an apparent encumbrance of record; the aspect of the case is changed, and the most that the vendor can insist upon is, that he shall satisfy himself within a reasonable time whether the apparent encumbrance 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 encumbered, and that the vendor should have a [362]*362right to demand the immediate performance of the contract by the vendee, when apparently his own deed would he 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.
The tender of performance by the vendee was made on the twentieth day of August, 1866, and the money was placed in the hands of a third person, to be paid over to Allen, in case he afterwards concluded to take it. It is objected that the tender is not shown to have been kept good, and that the money was not brought into court; but this was not essential. A right of action accrued the moment there was a breach by refusal to convey on demand accompanied by the proper tender; and the acceptance or non-acceptance of the money by Allen afterwards would only affect the amount of damages. If he accepted it, Atkinson would be entitled to recover it back, but in truth he had no right to take it except upon the condition of a simultaneous delivery of a deed.
It was also objected that the tender was insufficient, because not including interest for the month that had elapsed after the making of the contract. No objection was taken on this ground at the time, and I think it untenable now. The contract did not call for interest, but was to be performed in a reasonable time. That reasonable time would have been immediately, had no defect appeared in the title; but under the circumstances the delay was warranted, and it was not within the contemplation of the parties that interest should be paid so long as the vendee ¡was not in default. The tender, in my opinion, was all that was required.
[363]*363The remaining question is, whether the arrangement between Atkinson and Pinkham released Allen. Such was certainly not the intention of the parties, as is proved by the receipt given, and also by the stipulation for discontinuance. There was no accord and satisfaction in the case, and Allen was not in any way a party to the arrangement. It did not amount to an assent to the non-conveyance of the land to Atkinson, for Allen had already refused to convey, and had persisted in the refusal, notwithstanding the suit brought against him. The arrangement, in brief, was that Atkinson, who had a choice of two remedies, should pursue one instead of the other; and as Allen could have no voice in determining which should be chosen, and no right to insist that he should be pursued in the court of equity rather than the court of law, and, consequently, could not possibly be prejudiced by the arrangement, neither, on the other hand, has he any right to claim an advantage from it. It was an arrangement by which Pink-ham, acting solely on his own behalf, and from a regard to his own interest, relieved himself from a prospective lawsuit; and by which Atkinson made that same choice of remedies which he had an undoubted right to make, irrespective of the arrangement with Pinkham.
As Allen refused to perform when it wag in his power to do so, and without legal excuse, there can be no question, on the authorities, that the rule of damages adopted in the Court below was the correct one. If the vendor willfully refuses to perform his contract, he must place his vendee, as near as money can do so, in the same position in which he would have been if he had .obtained that for which he contracted.—Cannel v. McClean, 6 H. & J., 297; Hopkins v. Yowell, 5 Yerg., 305; Dustin v. Newcomer, 8 Ohio, 49; Trull v. Granger, 8 N. Y., 115; Engel v. Fitch, L. R., 3 Q. B., 314; same case in Exchequer [364]*364Chamber, L. R., 4 Q. B., 659; Martin v. Wright, 21 Ga., 504; Cox v. Henry, 32 Penn. St., 18; Burr v. Todd, 41 Penn. St., 206; Foley v. McKeegan, 4 Iowa, 1; Pumpelly v. Phelps, 40 N. Y., 59.
I think the judgment of the Court below should be affirmed.
The other Justices concurred.