168 Pa. 530 | Pa. | 1895
Opinion by
Has the plaintiff a marketable title to the land described in the contract on which his suit is based ? If he has he is entitled to recover the balance of the purchase money due on the contract, and if he has not, the judgment entered by the court below in favor of the defendant for the amount paid upon it must be sustained. While the action is in assumpsit for the purchase money a recovery in it would have the effect of a decree for specific performance, and for this reason the law, as well as the agreement of the parties, requires that it shall be decided on the equitable principles which would govern a chancellor on a bill filed for such a decree: Nicol v. Carr, 35 Pa. 381. A doubtful title or a title which exposes the holder of it to litigation is not marketable, and the rule in equity is that a purchaser will not be compelled to accept it. The rule on this subject is well stated by Paxson, J., in Mitchell v. Steinmetz, 97 Pa. 251: “ A decree for specific performance is of grace, not of right. It will never be made in favor of a vendor unless he is able to offer a title marketable beyond a reasonable doubt, nor against a vendee where he is able to show any circumstances which would make it unconscionable to do so.” This statement of the rule is well supported by the decisions of this court in numerous cases, among which we may mention: Nicol v. Carr, supra; Swain et al v. Fidelity Ins. Co., 54 Pa. 455; Doebler’s App., 64 Pa. 9; Swayne v. Lyon, 67 Pa. 436.
The land in dispute is part of the lands of which Andrew Fulton died seized, and which were disposed of by his will. Respecting his title to the land, or the construction of his will, there is no contention here. It appears to be conceded that under his will and by virtue of its provisions there are persons now living, and others yet unborn, who have contingent interests in the land, which, if not barred or divested by the parti
Judgment affirmed.