O'Meara v. Gleason
246 Mass. 136
Mass.
1923
Check Treatment
Braley, J.

This is an action of contract by the vendee to recover a deposit made under an agreement in writing to purchase eleven dwelling houses and land therewith connected. The case was submitted to the trial court on agreed facts and after a finding for the defendant is before us on report.

The defendant contracted to convey the property “ by good and sufficient quitclaim deeds . . . conveying a good and clear record title to the same free from all incumbrances, *138except taxes for the current year and restrictions of record, if any.” While it is stipulated that “ Time is of the essence of this agreement. ” Tender of a deed or deeds is . . . waived ” and the plaintiff’s refusal after extended negotiations to accept a conveyance leaves for decision the question, whether the title offered was in conformity with the requirements of the agreement.

A good and clear record title free from all incumbrances means a title which on the record itself can be again sold as free from obvious defects, and substantial doubts. See Sturtevant v. Jacques, 14 Allen, 523, 526; Hayes v. Harmony Grove Cemetery Co. 108 Mass. 400, 402; Conley v. Finn, 171 Mass. 70; Oakey v. Cook, 14 Stew. 350; Moore v. Williams, 115 N. Y. 586. The distinction is plain between the obligation of the defendant under the wording of the agreement, and that which would have attached if the language had been “ conveying a good and clear title free from all incumbrances ” as pointed out in Shanahan v. Chandler, 218 Mass. 441, 442, and Aroian v. Fairbanks, 216 Mass. 215. A “ good marketable title ” also is not the same as “ a good and clear record title.” The first embraces an actual title which may rest on disseisin for twenty years or more, and is established by evidence independently of the record. The second rests on the record alone, which must show an indefeasible unencumbered estate. Conley v. Finn, 171 Mass. 70, 72, 73. Morse v. Stober, 233 Mass. 223, 225, 226.

It seems to have been mutually conceded that the defendant’s title to lot “ 26 Newbern avenue ” is derived under a sale by foreclosure of a mortgage. The mortgagee’s deed, however, and affidavit were not recorded until forty-two days after the sale. By R. L. c. 187, § 15, now G. L. c. 244, § 15, “ The person selling shall, within thirty days after the sale, cause a copy of the notice and his affidavit stating his acts fully and particularly to be recorded in the registry of deeds for the county or district in which the land lies, with a note of reference thereto on the margin of the record of the mortgage deed, if the mortgage is recorded in the same registry. If the affidavit shows that he has in all respects complied with the requirements of the power of sale and of the statute, the *139affidavit, or a certified copy of the record thereof, shall be "admitted as evidence that the power of sale was duly executed.” But even if the deed vested the title, and the failure to record a copy of the notice of sale and the affidavit would not defeat it (Field v. Gooding, 106 Mass. 310, Burns v. Thayer, 115 Mass. 89, 93, Learned v. Foster, 117 Mass. 365, 371, Fitchburg Cooperative Bank v. Normandin, 236 Mass. 332, 334, 335), the failure of the mortgagee to comply with the statute would compel the plaintiff, if his title was questioned, to resort to extrinsic evidence to show that the power having been properly exercised the foreclosure was valid. The defendant therefore being unable to convey a good and clear record title to the Newbem land, the other alleged defects relied on by the plaintiff require no discussion.

In accordance with the terms of the report, judgment is to be entered for the plaintiff in the sum of $1,000 with interest from November 16,1920.

So ordered.