The opinion of the court was delivered by
Benson, J.:
The plaintiff contends that the defendant’s title is unmarketable, and that having shown this, he has established his right to commissions, the sale having failed for that reason alone. The defendant in • sists that the title is good, and further contends that by withholding all information of the contract to sell for a sum largely exceeding the amount afterward reported to the owner, withholding the name of the purchaser, and making the statement that the purchaser would pay for his trouble, the agent was lacking in good faith, and forfeited all claims for commissions.
The first objection to the title and the one that the [522]*522plaintiff’s counsel say is the most serious is that there is an unreleased mortgage given to Amelia W. Platter by Peter Platter, who owned the land when it was given, covering three or four acres of the tract. The land is situated in Kearny county and the mortgage was not refiled for record after the enactment of chapter 107 of the Laws of 1899. The effect of such an omission is referred to in Gibson v. Uppenkamp, 83 Kan. 74, 75, 109 Pac. 781, but its effect in this case need not be decided. The claim, interest and estate of the mortgagee was barred by a judgment in an action to quiet title rendered in due course of procedure in an action in the district court of the proper county brought by. Banchor, the defendant here, against J. T. Pringle, Amelia W. Platter and others. The only objection made to this judgment is that by its terms it barred Amelia W. Platter from any “estate or interest” in the land, and not from any lien thereon. The argument is that a mortgagee has no estate in the land, as decided in Chick and others v. Willetts, 2 Kan. 384, and other decisions of this court, but only a lien upon, it — a mere security. Decisions are cited holding that where this rule prevails a mortgage lien is not an interest in the property. The word “interest” when applied to property has a variable meaning to be determined in any case by the context, intention and circumstances. It may be used as synonymous with estate or title, or it may be used to denote something less than an estate or title. The meaning of this word, as used in an insurance policy was determined in Garner v. Insurance Co., 73 Kan. 127, 84 Pac. 717. A clause in the policy provided for forfeiture in case of change (with some exceptions) in “the interest, title or possession” of the property insured. It was said:
“The word ‘interest’ as used in the policy is not synonymous with title. It means some right different from title. It can not mean a greater estate than title, since ‘title’ as there used was intended to mean the entire estate. It must therefore have been used with [523]*523the meaning generally attached to it, when used in contradistinction to title — as ‘any right, in the nature of property, less than title.’ (Anderson’s Law Diet. 562.) ‘In a narrower sense it was used in the English common law of real property to designate a right less than an estate.’ (3 Cent. Diet. 3142.) This we think is the sense in which it was used in the policy.” (p. 130.)
The judgment referred to, introduced in evidence, after reciting the findings, was as follows:
“It is therefore considered, ordered and adjudged by the court that the plaintiff’s title to the above-described real estate is valid and perfect, and that the defendants, or either of them, have no right to any claim thereto, that they have no estate or interest in and to said premises, and that they be perpetually barred and enjoined from asserting any claim to said premises, or any part thereof, adverse to that of plaintiff.”
Whatever meaning should be given to the word “interest” when standing alone in such a document, it is clear that the terms used in this judgment are sufficient to cover a mortgage lien.
The defendant argues that the judgment is broader than the petition, which only alleged that the defendant, Amelia W. Platter, claimed an adverse estate in the land, and that she could be barred of nothing else, but the abstract does not show the petition or that it was in evidence and no counter abstract was filed.
It is also contended that it is possible that Amelia W. Platter may have been dead when the action to quiet title was commenced. It has not hitherto been considered necessary that a party relying upon a judgment as evidence should produce proof that the parties thereto were living when the suit in which it was rendered was begun. When an action has been prosecuted to judgment in a court of competent jurisdiction by procedure regular upon the face of the record, it will be presumed that the parties thereto were living when the action was commenced. In the absence of proof to the contrary, this presumption will prevail.
Other objections to the title are overcome by the [524]*524effect, of the judgment before referred to and by the fact that the grantors in the instruments which it is alleged cloud the title had previously conveyed the land' by warranty deed to parties under whom the defendant holds title. As the land records disclosed these facts the later instruments conveyed nothing. (Stark v. Chitwood, 5 Kan. 141; Hutchinson v. Harttmann, 15 Kan. 133; Douglass v. Nuzum, 16 Kan. 515.)
It is true that a title need not always be bad in fact in order to be unmarketable. The question is whether a reasonably prudent man, familiar with the facts and apprised of the law, would accept it in the ordinary course of business. (Williams v. Bricker, 83 Kan. 53, 109 Pac. 998.) The objections to this title are of the character frequently shown upon abstracts of title which are overcome by facts also appearing upon the abstract, and are not such as to make the title unmarketable in the ordinary course of dealing in property of this character. It is possible that facts not appearing upon the records may overthrow a title apparently good, but in such a case it devolves on the party rejecting the title to show the defect. The constant approval of titles with irregularities such as are here presented and which are shown by the land records to be harmless or immaterial, demonstrates that they are marketable. A contrary ruling would uselessly hamper the free conveyance of land and be a cause of vexation and unrest.
The fact that the defendant offered a quitclaim deed instead of a warranty deed, if it should be conceded, as plaintiff insists, that a warranty deed ought to have been given, required him to make prompt objection upon that ground, but the plaintiff based his objections on the condition of the title and not on the form of the deed.
As the plaintiff did not produce a purchaser willing to take the land — the title being found sufficient — it was right to reject his claim for commission on that ground, [525]*525and it is not necessary to examine the other reasons urged by the defendant to support the decision.
The defendant, in his appeal, insists that having shown a good title and full performance on his part the advance payment should not be recovered against him, and that in this respect the judgment should be reversed. It will be noticed that in the correspondence the plaintiff referred to this $100, as earnest money, a term used to distinguish a payment made to bind the bargain on the sale of property. (3 Words & Ph. Jud. Def. p.
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The opinion of the court was delivered by
Benson, J.:
The plaintiff contends that the defendant’s title is unmarketable, and that having shown this, he has established his right to commissions, the sale having failed for that reason alone. The defendant in • sists that the title is good, and further contends that by withholding all information of the contract to sell for a sum largely exceeding the amount afterward reported to the owner, withholding the name of the purchaser, and making the statement that the purchaser would pay for his trouble, the agent was lacking in good faith, and forfeited all claims for commissions.
The first objection to the title and the one that the [522]*522plaintiff’s counsel say is the most serious is that there is an unreleased mortgage given to Amelia W. Platter by Peter Platter, who owned the land when it was given, covering three or four acres of the tract. The land is situated in Kearny county and the mortgage was not refiled for record after the enactment of chapter 107 of the Laws of 1899. The effect of such an omission is referred to in Gibson v. Uppenkamp, 83 Kan. 74, 75, 109 Pac. 781, but its effect in this case need not be decided. The claim, interest and estate of the mortgagee was barred by a judgment in an action to quiet title rendered in due course of procedure in an action in the district court of the proper county brought by. Banchor, the defendant here, against J. T. Pringle, Amelia W. Platter and others. The only objection made to this judgment is that by its terms it barred Amelia W. Platter from any “estate or interest” in the land, and not from any lien thereon. The argument is that a mortgagee has no estate in the land, as decided in Chick and others v. Willetts, 2 Kan. 384, and other decisions of this court, but only a lien upon, it — a mere security. Decisions are cited holding that where this rule prevails a mortgage lien is not an interest in the property. The word “interest” when applied to property has a variable meaning to be determined in any case by the context, intention and circumstances. It may be used as synonymous with estate or title, or it may be used to denote something less than an estate or title. The meaning of this word, as used in an insurance policy was determined in Garner v. Insurance Co., 73 Kan. 127, 84 Pac. 717. A clause in the policy provided for forfeiture in case of change (with some exceptions) in “the interest, title or possession” of the property insured. It was said:
“The word ‘interest’ as used in the policy is not synonymous with title. It means some right different from title. It can not mean a greater estate than title, since ‘title’ as there used was intended to mean the entire estate. It must therefore have been used with [523]*523the meaning generally attached to it, when used in contradistinction to title — as ‘any right, in the nature of property, less than title.’ (Anderson’s Law Diet. 562.) ‘In a narrower sense it was used in the English common law of real property to designate a right less than an estate.’ (3 Cent. Diet. 3142.) This we think is the sense in which it was used in the policy.” (p. 130.)
The judgment referred to, introduced in evidence, after reciting the findings, was as follows:
“It is therefore considered, ordered and adjudged by the court that the plaintiff’s title to the above-described real estate is valid and perfect, and that the defendants, or either of them, have no right to any claim thereto, that they have no estate or interest in and to said premises, and that they be perpetually barred and enjoined from asserting any claim to said premises, or any part thereof, adverse to that of plaintiff.”
Whatever meaning should be given to the word “interest” when standing alone in such a document, it is clear that the terms used in this judgment are sufficient to cover a mortgage lien.
The defendant argues that the judgment is broader than the petition, which only alleged that the defendant, Amelia W. Platter, claimed an adverse estate in the land, and that she could be barred of nothing else, but the abstract does not show the petition or that it was in evidence and no counter abstract was filed.
It is also contended that it is possible that Amelia W. Platter may have been dead when the action to quiet title was commenced. It has not hitherto been considered necessary that a party relying upon a judgment as evidence should produce proof that the parties thereto were living when the suit in which it was rendered was begun. When an action has been prosecuted to judgment in a court of competent jurisdiction by procedure regular upon the face of the record, it will be presumed that the parties thereto were living when the action was commenced. In the absence of proof to the contrary, this presumption will prevail.
Other objections to the title are overcome by the [524]*524effect, of the judgment before referred to and by the fact that the grantors in the instruments which it is alleged cloud the title had previously conveyed the land' by warranty deed to parties under whom the defendant holds title. As the land records disclosed these facts the later instruments conveyed nothing. (Stark v. Chitwood, 5 Kan. 141; Hutchinson v. Harttmann, 15 Kan. 133; Douglass v. Nuzum, 16 Kan. 515.)
It is true that a title need not always be bad in fact in order to be unmarketable. The question is whether a reasonably prudent man, familiar with the facts and apprised of the law, would accept it in the ordinary course of business. (Williams v. Bricker, 83 Kan. 53, 109 Pac. 998.) The objections to this title are of the character frequently shown upon abstracts of title which are overcome by facts also appearing upon the abstract, and are not such as to make the title unmarketable in the ordinary course of dealing in property of this character. It is possible that facts not appearing upon the records may overthrow a title apparently good, but in such a case it devolves on the party rejecting the title to show the defect. The constant approval of titles with irregularities such as are here presented and which are shown by the land records to be harmless or immaterial, demonstrates that they are marketable. A contrary ruling would uselessly hamper the free conveyance of land and be a cause of vexation and unrest.
The fact that the defendant offered a quitclaim deed instead of a warranty deed, if it should be conceded, as plaintiff insists, that a warranty deed ought to have been given, required him to make prompt objection upon that ground, but the plaintiff based his objections on the condition of the title and not on the form of the deed.
As the plaintiff did not produce a purchaser willing to take the land — the title being found sufficient — it was right to reject his claim for commission on that ground, [525]*525and it is not necessary to examine the other reasons urged by the defendant to support the decision.
The defendant, in his appeal, insists that having shown a good title and full performance on his part the advance payment should not be recovered against him, and that in this respect the judgment should be reversed. It will be noticed that in the correspondence the plaintiff referred to this $100, as earnest money, a term used to distinguish a payment made to bind the bargain on the sale of property. (3 Words & Ph. Jud. Def. p. 2302.) The contract of sale between the plaintiff and White, of which however the defendant was not informed, contained no express provision of forfeiture, but the defendant repeatedly claimed that the $100 would be his money if the other payments were not made. In Ketchum v. Evertson, (N. Y.) 13 Johns. 358, & recovery of $700, advanced on a contract to sell for a •consideration of $6000, was sustained, the vendee having refused to make further payments. The court said:
' “It would be an alarming doctrine, to hold, that the plaintiffs might violate the contract, and, because they chose to do so, make their own infraction of the agreement the basis of an action for money had and received. Every man who makes a bad bargain, and has advanced money upon it, would have the same right to recover it back that the plaintiffs have.” (p. 364.)
In Hansbrough v. Peck, 72 U. S. 497, it was said:
“No rule in respect to the contract is better settled than this: That the party who has advanced money or done an act in part-performance of the agreement, and then stops short and refuses to proceed to its ultimate conclusion, the other party being ready and willing to proceed and fulfill all his stipulations according to the contract, will not be permitted to recover back what has thus been advanced or done.” (p. 506.)
The general rule that a purchaser of land who has made an advance payment and then fails to fulfill the ■contract without the fault of the vendor can not recover the amount so paid has been variously stated and [526]*526generally observed. (Downey v. Riggs, 102 Iowa, 88, 70 N. W. 1091; Lawrence v. Miller, 86 N. Y. 131; Hill v. Grosser, 59 N. H. 513; Estes v. Browning, 11 Tex. 237; M’Kinney v. Harvie, 38 Minn. 18, 35 N. W. 668; Grimes v. Goud, [Maine, 1887] 10 Atl. 116.)
In Frederick v. Birkett, 37 Kan. 536, 15 Pac. 510, the purchaser of land having made one payment refused to accept a conveyance because of an alleged defect in the title, and sued to recover the advance payment; the title was made good before the commencement of the action and recovery was refused. Again, in Roberts v. Yaw, 62 Kan. 43, 61 Pac. 409, the purchaser of real' estate under a bond for a deed having made an advance payment and then made default was foreclosed and a claim for the recovery of the advance payment was refused.
It has been held in some cases that notwithstanding the failure of the vendee to complete the payments the vendor should return the advance payment less any damages he may have suffered from the vendee’s default. It has been so held where the contract had been abandoned or rescinded by consent of the party not in default, and in other cases where equity manifestly required it recovery of the payment has been allowed, as in cases of fraud, surprise, or other ground of equitable cognizance (Phelps v. Brown, 95 Cal. 572, 30 Pac. 774; see, also, Glock v. Howard & Wilson Colony Co., 123 Cal. 1, 55 Pac. 713, 43 L. R. A. 199), but no countervailing equity appears here to relieve the purchaser from the consequences of his failure to complete the purchase.
The plaintiff attaches importance to the statement in the defendant’s letter of December 3, that “the saléis off,” and alleges that this was a rescission by him. It appears, however, that for a considerable time afterward he was inquiring what defects were claimed in the title and endeavoring to satisfy the plaintiff that it was good, and as late as January 24, 1908, notified him that the papers had been referred to an attorney [527]*527for an examination and report. Manifestly if the plaintiff had then, or in any reasonable time, tendered payment, his default would have been excused. (Hudson v. Swift, [N. Y.] 20 Johns. 24.)
/The court erred in rendering judgment for the plaintiff for the advance payment of $100. It should be modified by entering judgment against the plaintiff on that claim and the cause is remanded with directions to modify the judgment accordingly.