| Mich. | Jun 22, 1888
On July 14, 1887, the plaintiff agreed to sell to defendant a brick store and appurtenances in Niles, described as—
“ Being the same devised to him by his father, and being the store next west to the store owned by William E. Platt, and which is now being repaired,”—
for the sum of ,$4,125 cash down.
Plaintiff further covenanted—
*114 “ To furnish an abstract of said property and premises, and to give a good and sufficient warranty deed of the same, and to convey the same to said Newman free and ’ clear of all incumbrances.”
It was further agreed that Newman should have one-half of the east and west party-wall, and the whole west wall if plaintiff owned it. It was .further agreed that the contract should not be binding on Newman—
“Unless said Platt shall convey the indefeasible right, and said Newman shall acquire the same from said Platt by this purchase, to take out and remove wholly the front stairway now in said building, and shall be, as the owner of said store and premises, or otherwise, under no restraint or obligation, legal or otherwise, to maintain any stairway in or about said store or premises.”
Plaintiff was to perform, and defendant to pay thereupon, within 30 days. Plaintiff furnished an abstract, and tendered a deed, within that time. Defendant refused to accept the conveyance as not a sufficient performance of the contract, and plaintiff sues.
The questions are not numerous. The plaintiff’s father owned an entire block of three stores, including the one in question, and built a stairway in that store, which was used in connection with upper rooms in the other stores, and this is the stairway referred to in the contract. The father died early in 1887, and his will was admitted to probate in March, 1887. This contract was made in July. No letters testamentary, or bonds or inventory had been made out, and no further steps had been taken in the estate then or afterwards. These stores were specifically devised, one to plaintiff, one to another son, and t'he third in trust for a daughter and her children. There were specific bequests or devises of other property, and the children surviving testator were made residuary legatees.
The court below held that the stairway belonged exclusively to plaintiff’s store, and that there was no other right in it; and the charge upon the other question was such as to authorize a recovery.
The fact that the title was in the testator would not necessarily make an indefeasible title in his devisees. Until an estate is settled, it can never be known how far land devised may be affected by debts or charges. The statute provides that residuary legatees may give bonds, and thereby render further administration needless; but there is no other way in which such a result can be produced. The contract calls for more than a warranty deed. It provides for a title which shall be perfect. Defendant was not bound to rest upon covenants. It is also evident that there is at least reason to expect trouble about the stairs. Any interference with their use would involve lawsuits; and, whatever may be the presumptions, it is very clear that the rights of the other parties could not be settled in this suit, to which they are strangers. The contract does not merely provide that defendant shall be saved against merely legal interference.- The language is, “ legal or otherwise.” The reference in the contract to this stairway shows that there was some question about it in the minds of the parties, and we think defendant is entitled to some assurance against disturbance beyond the contingencies of a lawsuit.
We think, therefore, that plaintiff showed no right of action.