Aroian v. Fairbanks, 216 Mass. 215

Aroian v. Fairbanks

216 Mass. 215 | Mass. | 1913

Hammond, J.

The first question is whether the contract called for a good record title. It provided that “if upon examination a defect” should be “found in the title, . . . the time for passing the papers” should be extended so that the defect might be cured unless the parties should otherwise agree.

It plainly appears from this that the. parties contemplated an examination of the title. But what kind of examination? Doubtless an examination should extend to the record, but was it to end there? Nowhere in the contract is the character of the examination limited to the record expressly, nor, as it seems to us, by necessary implication. The plaintiffs were to rely upon the title disclosed by an examination and were to rely upon nothing else. Certainly it was for their interest to make such an examination as would disclose the actual state of the title, whether the facts material to that inquiry were to be found in the registry of deeds,' the records of the Probate Court, or were well known and easily ascertainable outside of either. The plaintiffs were not confined to the record nor bound by its state alone. If, for instance, the record title upon its face was perfect, but by reason of incapacity of some grantor in the chain of title to make a deed, or by reason of disseisin any deed though perfect on its face was inoperative and the facts though provable only by paroi were well known, the plaintiffs would not have been bound to take the title. And for the same reason, if there was a defect in the record title which had been cured by disseisin, as in the present case, and the facts were easily provable, then the title is good and a proper examination as to all matters affecting its validity would show it to be good. The clause giving thirty days within which any defect may be remedied is not conclusive against this interpretation. The pur*220pose of putting a limit on the time within which a defect discovered in the examination must be remedied was doubtless to show that time was of the essence of the contract, and thereby to relieve the vendee from the uncertainties arising when time is not of the essence; as to which see the remarks of Chapman, J., in Richmond v. Gray, 3 Allen, 25, 28-30. In a word, the plaintiffs were entitled to the benefits and bound by the results of an examination of the real state of the title, provided always that the title was marketable within the meaning of that term as used in this connection. Such an interpretation of the clause in question is suggested by its language, is not inconsistent with any other provision of the contract, and best comports with the interests and situation of the parties. Noyes v. Johnson, 139 Mass. 436, cited by the plaintiffs, is plainly distinguishable. In Richmond v. Gray, ubi supra, also cited by the plaintiffs, which was a bill in equity brought by a vendor to enforce specific performance of a contract to purchase certain real estate, the title upon the record and in fact, was defective. The defect was suggested by the record, and upon inquiry in pais the suggestion proved true. And the decree dismissing the bill was right, not upon the ground that there was a defect in the record title but upon the ground that the title was in fact defective. In that case the contract, which was brief and somewhat informal, contained the clause “Title to be examined, ” The remarks by Chapman, J., that the clause implied “that the purchaser was not bound to take the land unless he found a good, record title, ” and that “a defective record title is not marketable,” were not essential to the decision of the case and must be regarded as mere dicta. The doctrine that a defective record title is not marketable is repudiated in Conley v. Finn, 171 Mass. 70, in which case the language of Folger, J., in Murray v.Harway, 56 N. Y. 337,344, that “it has been held, that where one of the paper links of title was defective, the lapse might be supplied by paroi proof of possession, under color of title, sufficient to establish a good adverse possession; and that such a title is enough on which to found a decree,” was cited by Ehowlton, J., with approval. The first dictum above cited, being founded to a great extent upon the soundness of the second, must fall with it. Neither is a true statement of the law. The majority of the court think that the first ruling re*221quested by the plaintiff was properly refused; and that there is no error in the manner in which the judge dealt with the other requests or in the instructions under which the case was submitted. The charge was full, clear and in accordance with the law. Conley v. Finn, 171 Mass. 70, and cases cited. Foster, Hall & Adams Co. v. Sayles, 213 Mass. 319, and cases cited.

The plaintiffs were not prejudiced by the instructions as- to the testimony of Weeks. So far as his testimony bore upon the general question that a defective record title is not marketable it was incompetent and of no probative force, and so far as it tended to show the nature of the defect it added nothing.

Exceptions overruled.