Bradway v. Miller
200 Mich. 648
Mich.
1918
Check Treatment
Ostrander, C. J.

(after stating the facts). 1. Whether an abstract shows a title is a question of law. Lawyers may differ in opinion, but nevertheless the question when presented to a court must be answered as the applicable law requires. Therefore, an admission of counsel at the hearing, if one was made, that the title shown by the abstract was not marketable, while it would naturally affect the court and perhaps prevent further examination of the question by the court, is not one which would bind the court.

2. An agreement for a-title to be shown to be marketable by an abstract thereof is good. Lake Erie Land Co. v. Chilinski, 197 Mich. 214; Ogooshevitz v. Arnold, 197 Mich. 203. See, also, Ford v. Wright, 114 Mich. 122, 130; Walker v. Gillman, 127 Mich. 269.

3. Specific performance of a contract for the sale of land is not matter of strict right and whether it will be ordered is a question for equitable consideration. A purchaser may suffer a loss if compelled to take a doubtful title, while the vendor can usually suffer only the inconvenience of delay, if his title is good and the purchaser is released. Maupin on Marketable Title, p. 708. Nor, in a case like this, should what appears upon the abstract be confused with or enlarged by what it is more or less probable would appear if all discoverable, recordable, facts were presented or with *656provable facts showing a title good in law but not of record; as, for example, a title by adverse possession. In this connection, it is to be observed that although the statute, Act No. 123, Public Acts of 1915 (3 Comp. Laws 1915, §§ 11736-11738), permits affidavits detailing certain facts to be recorded and makes such recorded affidavits prima, facie evidence, in courts, of the facts and circumstances contained, such affidavits may and often do merely point to evidence which would, if not disputed, support á decree quieting title or one reforming an instrument.

4. A foreclosure of a mortgage by advertisement is valid only where the mortgage contains a power of sale, and an agreement like the one before us is not complied with if the title rests upon a foreclosure by advertisement, and the abstract does not show that the mortgage contained a power of sale. The recital in the sheriff’s deed that the mortgage contains the power is no evidence of the fact. Bryan v. Straus Bros. & Co., 157 Mich. 49. This was an action of assumpsit by vendors upon a land contract.

5. A title is not marketable which rests upon a deed which essentially misdescribes the property conveyed; as when, as in this case, the land is described in the deed as being in a township other than the one in which the land which is abstracted lies.

6. Plaintiffs say that inasmuch as Reuben Adams, vendee in the deed given in the foreclosure proceeding, afterwards executed the conveyance to Israel Bickford, who also acquired such title as Philo Parsons took upon the execution sale, it is immaterial as affecting title whether the foreclosure was valid or invalid, or whether the foreclosure deed correctly describes the land. Parsons, the purchaser at execution sale, had the right to redeem from the mortgage which Reuben Adams owned. Israel Bickford acquired Parsons’ interest and right and also acquired Adams’ *657interest. Adams’ quitclaim deed, if not a conveyance of title, may be treated as at least an assignment, of the mortgage. There was then no outstanding interest or. title. It is further the argument of plaintiffs that the mortgage was either foreclosed or it was not. If not, it became due in November, 1870, since which date more than 45 years have elapsed. But, clearly, plaintiffs’ title rests either upon the foreclosure of a mortgage or upon the deed from Mr. Parsons, or upon both, and the validity of each is doubtful. That plaintiffs as defendants might maintain title in an ejectment suit or secure decrees correcting the records, does not answer the specifications of the contract which calls for a title shown by the abstract- of title to be merchantable. One informed about all the facts might be willing to purchase the land, accepting a deed from plaintiffs, but that is not the test to be applied. See Ford v. Wright, Walker v. Gillman, supra; Stange v. Gosse, 110 Mich. 153.

7. In Schwartz v. Woodruff, 132 Mich. 513, the action was like the one at bar, but there was no question there of an abstract title. The agreement there was for a good and sufficient conveyance in fee simple, free and clear, etc. The purchase price being all due and a conveyance tendered the purchaser, he declined to accept it upon the sole ground, that he did not have the money. There was, in fact, a defective title of record, but the defect was one which the vendor could remedy. And so it was held that as an injustice would result to the defendant purchaser if he was compelled to pay the difference between what could be obtained for a questionable title and what he had agreed to pay for a title free from question, the decree required the vendor to obtain and record the conveyance which would perfect the record title. ,In the case at bar, the plaintiffs ask for time to perfect their record title. The court below refused this for a reason stated in *658the opinion. This reason seems to me to be based upon facts fairly inferable from, the evidence in the case and to be sufficient.

The decree is affirmed, with costs to defendant.

Bird, Moore, Steere, Brooke, Fellows,'Stone, and Kuhn, JJ., concurred.