92 Pa. 48 | Pa. | 1879
delivered the opinion of the court, November 17 th 1879.
This was a suit to recover the hand-money upon a contract for the sale of real estate. A deed was tendered by the plaintiff below to the defendant, and a demand made for the cash payment, and bond and mortgage stipulated for in the contract. The defendant desired to take the property, but declined to accept the deed, on the ground that the title was defective.
The plaintiff claimed title under Robert Hay, who with his wife
It is apparent, that the questions that arise upon the title are: 1st. What estate does the widow take under the will? and 2d. Have the children of Jacob Croneweth such an interest as would require them to be made parties to the partition ?
We do not regard these questions as so entirely free from doubt as to make a marketable title. This suit is a substitute for a bill for specific performance, and must be governed by the same principles. A chancellor will never compel a purchaser to take a doubtful title, or one that is not marketable. Nicol v. Carr, 11 Casey 381; Freetly v. Barnhart, 1 P. F. Smith 279; Swain v. The Fidelity Ins., Trust and Safe Deposit Co., 4 Id. 455; Ferguson’s Appeal, 9 Id. 487, note. In the case last cited, it was said by Bead, J. : “ Now, the rights of Jane, the wife, are not before the court. She is not a party to this suit, and no decree made here would bind her, and nothing is better settled than that upon a bill for specific per formance, which is addressed to the discretion of the chancellor, the vendor must make out not only a holding but a marketable title, one as to which there is no reasonable doubt either as to matter of law or fact.” We need not multiply authorities upon so plain a matter; what have been cited are sufficient.
The children of Jacob Croneweth were not parties to the partition, and are not before the court. Were we to say they have no ‘such interest as entitles them to participate in the partition, they may nevertheless claim their day in court hereafter to be heard upon that question, and our successors might not feel themselves bound by our decision. We ought not to subject the defendant to such a risk.
Judgment reversed.