151 Wis. 347 | Wis. | 1912
But two questions are involved upon this ■appeal: (1) Whether there was a cloud upon the title to
1. The contention of the appellant is that the foreclosure of the Walz, or first, mortgage cuts off all rights of the mortgagee, Draves, in the 'lots under the second mortgage, and that, the title acquired under the first foreclosure having passed to the appellant before this action was brought, ’appellant had and tendered a good title, therefore was entitled to specific performance at the time of such tender. On foreclosure of the second mortgage the sale was confirmed by the court and the property bid in by Erederick Sivyer, administrator de bonis non of the estate of Draves, and a sheriff’s deed executed to him, which was duly recorded.
We are furnished by counsel on both sides with very able and exhaustive briefs 'as to what constitutes marketable title and cloud upon title to real estate. On the part of appellant many authorities are cited to the point that the foreclosure of a prior mortgage, when a second mortgagee is a party, cuts off such second mortgagee, and also that a deed from a stranger to the title does not create a cloud, nor a deed void upon its face. Also that a mortgage by one having no title or foreclosure thereof is not a cloud upon title, or, if the invalidity of that which is alleged to be a cloud appear on the face of the record by which it is shown to exist, it may be no cloud so as to render the title unmarketable.' In determining what is a cloud it is sufficient, however, that the defect in title be at least a(n apparent cloud, rendering resort to evidence aliunde the record necessary in order to show its invalidity. Pier v. Fond du Lac, 38 Wis. 470; Swing v. Rollman, 145 Wis. 490, 130 N. W. 485.
The claim of title under the Sivyer deed was a claim under a judicial sale and cannot be said to show its invalidity upon its face nor in connection with the first foreclosure. Many facts aliunde the record may have existed and entered into
The respondents under the agreement were entitled to a good title, one that they could hold in peace and not he obliged to litigate to determine whether the deed to Sivyer on judicial sale conveyed any interest or not. Dobbs v. Norcross, 24 N. J. Eq. 327; Zone v. Weintz, 65 N. J. Eq. 214, 55 Atl. 641; Fleming v. Burnham, 100 N. Y. 1, 2 N. E. 905. A title which is open to judicial doubt is not marketable. Gates v. Parmly, 93 Wis. 294, 66 N. W. 253, 67 N. W. 739; 36 Cyc. 634; Speakman v. Forepaugh, 44 Pa. St. 363; Swain v. Fidelity Ins., T. & S. D. Co. 54 Pa. St. 455; Street v. French, 147 Ill. 342, 35 N. E. 814; Moore v. Williams, 115 N. Y. 586, 22 N. E. 233; Daniell v. Shaw, 166 Mass. 582, 44 N. E. 991.
There can be no doubt upon the record before us that the deed to Sivyer constituted a cloud and rendered the title unmarketable within the meaning of the agreement, therefore respondents were not obliged to accept it.
2. After action was commenced and upon the trial appellant tendered a quitclaim deed from Sivyer to respondents of lots 8 and 9 and thereupon the court below awarded specific performance, but charged the appellant with the sums heretofore set out in the statement of facts as properly chargeable against him, on the ground that he was not entitled to specific performance until he tendered the deed. We think the court below was clearly right in holding that the sheriff’s deed to Sivyer, upon foreclosure of the second mortgage, was a cloud upon the title to said lots 8 and 9, hence that the title offered by appellant before action brought was not a good title within the meaning of the contract. This being so, we cannot say that the court below abused its discretion in stating the ae-
By the Court. — The judgment is affirmed.