Epitomized Opinion
Suit by the vendee of a land contract against the vendors to recover back $1000 payment made on the purchase price and for $10,000 damages for failure to convey a clear, free and unincumbered title. The vendors, Frank and Florence Bender contracted to convey such title, but at the time of tender of the deed the vendee found that the land in question had previously been devised to Frank and Florence for life and at the death of either then to the survivor in fee simple. Vendee thereupon refused to accept the deed and brought this action contending that the title was not clear in Frank and Florence because they might both die, simultaneously. On demurrer to the amended petition the court held: ~
The title offered by Frank and Florence was sufficient to satisfy requirement by “clear, free and unincumbered.” No reasonable and prudent purchaser would hesitate at the marketability of this title, because the chance of the vendor’s simultaneous deaths is too unlikely. Their simultaneous deaths would not affect the title anyway for their joint deed would completely estop anyone setting up a claim by through or under them. Demurrer sustained.