The opinion of the court was delivered by
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Thе plaintiff covenanted to make a good and sufficient title to the defendant, in consideration of the purchase-money agreed by the latter to be paid. Such as he could make has not been accepted, and thеrefore the agreement is still executory. This is an actiоn at law upon the agreement, to recover the purchase-money, but under our blended system of law and equity, it is to bе treated upon equitable principles. It is quite apрarent, that to allow1 the plaintiff to recover, would bе, in effect, to decree specific performance of the agreement; and the question therefore is, would a court of equity make such a decree with the lаrge mortgages overhanging ? Certainly not; because in a court of equity a vendor is bound to tender, or be ready to make a title that is marketable; which means a title that involvеs no considerable or rational doubt either as to mаtter of law or fact. The distinction between good and mаrketable titles is peculiar to courts of equity, being unknown in сourts of law, where the only question is, whether the title is good оr bad. “There can be no such thing as a doubtful title in a court оf justice,” said Chief Baron Eyre, in Gale v. Gale, 2 Coxe 145; “ it must be either right or wrong, and the thickness of the medium through which the point is to be seen makes no difference in the end.” But the equity doctrine is, that a title is nоt to be forced upon a purchaser, which is not so free from difficulty as to law and fact, that on a resale an unwilling purchaser shall be unable to raise any question, which mаy appear to a judge sitting in equity, so doubtful, that a title.involving it ought not to be enforced. The doubts, however, which will opеrate on courts of equity, are not doubts made up for the occasion — doubts based on captious, frivolous, and astute niceties, but such as would and ought to induce a prudent man to pause and hesitate in accepting a title affected by
These mortgages were sufficient grounds for suсh a doubt. The questions that arise upon them, and which were very well argued by counsel, are questions of the gravest impоrt and of considerable difficulty. We do not enter into them, nor intimate any opinion how they ought to be decided, but we hold it as a very clear conviction, that Carr ought not to be compelled to pay for a title burdened by such questiоns. It is familiar law, that where an encumbrance exists which was nоt by agreement to enter into and form part of the consideration, the vendor, by executory articles, must dischargе it, before he can call for a completion оf the sale: 2 Sugd. on Vendors 419 ; Withers v. Baird, 7 Watts 229. If, as in this case, the vendor finds he cannot makе such a title as the vendee is bound to accept, it is his businеss to refund what has been paid, and to bring ejectment, when the vendee must turn out or pay: Gans v. Renshaw, 2 Barr 34.
Without saying that the mortgages are valid encumbrances upon this title, we think they are sufficient to discredit its marketableness, and therefore the court were right in refusing to compel the defendant to pay for it.
The judgment is affirmed.