Herman v. Somers

27 A. 1050, 158 Pa. 424, 1893 Pa. LEXIS 1606

• Court: Supreme Court of Pennsylvania
• Decided: November 13, 1893
• Docket: Appeal, No. 112
• Status: Published

Opinion

Per Curiam,

According to express terms of the contract of sale, the property was “ to be free from all liens and encumbrances,” and the hand money was “ to be refunded if title should not prove good on examination of records, or cannot be made good.” This is equivalent to a covenant to convey a good marketable title. In equity a marketable title is one in which there is no doubt involved, either as to matter of law or fact: Dalzell v. Crawford, 1 Parsons, Equity Cases, 45; Nicol v. Carr, 35 Pa. 382; Swayne v. Lyon, 67 Pa. 439. In Speakman v. Forepaugh, 44 Pa. 373, it was said : “ Every title is doubtful which invites or exposes the party holding it to litigation. If there be color of outstanding title which may prove substantial — though there is not enough in evidence to enable the chancellor to say so— a purchaser yjill not be held to take it and encounter the hazard of litigation.” The testimony in this case is quite sufficient to bring it within the principle recognized in these cases, and hence there was no error in affirming plaintiff’s first, second and third points, or in charging the jury as requested in his fourth point, that, under the law and evidence, the title to the property in question was not marketable and their verdict must be for the plaintiff; nor was there any error in refusing to affirm defendants’ first and second points, or in charging the jury as complained of in the seventh specification. Neither of the specifications of error is sustained.

Judgment affirmed.