53 Wash. 93 | Wash. | 1909
This action was commenced by E. B. Summy against S. V. Ramsey and wife, to recover $1,000 earnest money paid on a contract for the purchase of real estate. From a judgment in favor of the defendants, the plaintiff has appealed.
Appellant’s controlling assignments of error are based upon his contention that the findings of the trial judge are not sustained by the evidence. The evidence shows the following
“Abstract of title to be furnished without delay, and the form of the conveyance is to be warranty deed, which is to be delivered within 30 days thereafter upon the receipt of the above $11,500 cash payment, and the securities for deferred payments. And it is agreed and understood by said purchaser that if the title is not good, and ccmnot be made good, this agreement shall be void, and the vendor shall not be liable for any damage, and the said sum of one thousand dollars, earnest money, paid by the purchaser shall be returned to him.. If the title is found to be good, and nevertheless not accepted by said purchaser (the deed being tendered), within the time and as herein named, said earnest money is forfeited as the consideration paid for this agreement, and the owners of said premises shall be considered to have fully performed on their part, and may declare this contract terminated. Time is made the essence of this agreement;” . . .
that appellant paid $1,000 cash; that respondents delivered to him abstracts of title, which he handed to his attorney for examination and opinion; that pending such examination, appellant advertised and attempted to resell the property at an advanced price, but was unable to do so; that on March 13, 1907, appellant’s attorney delivered to him a written opinion, in which he stated that the abstracts disclosed title in Samuel Y. Ramsey, the respondent, and that a deed from him to his wife would convey good title upon correction of certain defects and irregularities; that the opinion then proceeded to point out eighteen separate defects and irregularities; that appellant on March 16, 1907, returned the ab
“Seattle, Wash., Mar. 16th, 1907.
“Mr. Samuel V. Ramsey, City.
“Dear Sir: — I enclose herewith the opinion of my attorney Mr. A. E. Parker on title to lots 1 & 2, block 6 of W. R. Brawley’s Addition and the east 88 feet of lot 4 in block A of H. L. Yesler’s First Addition. From this opinion and after discussing all phases of this opinion with Mr. Parker, I am satisfied that your title is not good and would respectfully ask for the return of the earnest money of one thousand dollars.
“Opinion enclosed. Yours truly,
“E. B. Summy;”
that on March 20, 1907, Ramsey wrote an answering letter to appellant, in which he contended there was no question but that the title was good; and stated that he declined to return the purchase money already paid; that without admitting the necessity therefor, he would endeavor to correct the alleged defects; that he would then have the abstracts extended and returned to appellant, and that he would tender a deed and make demand for the remainder of the purchase money.
The evidence further shows that respondent did attempt to make corrections; that on March 26, he returned the extended abstracts, with instruments making some corrections, to appellant for his consideration; that he offered to record such instruments if necessary; that he tendered a good and sufficient warranty deed, and demanded the remainder of the purchase money; that appellant received and retained the abstracts; that he declined to return them to respondent when demanded for further correction and extension; that he claims to have held them as evidence to show that the title tendered to him was not good; that on April 5, 1907, appellant wrote respondent, reiterating his objections to the title, insisting that it could not be made good, refusing to complete the purchase, and demanding a return of the $1,000 paid by him, and that upon respondent’s refusal to pay, he commenced this action.
“. . . title not subject to such reasonable doubt as would create a just apprehension of its validity in the mind of a reasonablé, prudent, and intelligent person; one that persons of reasonable prudence and intelligence, guided by competent legal advice, would be willing to take and pay the fair value of the land for.”
In Cummings v. Dolan, 52 Wash. 496, 100 Pac. 989, this court said:
“Appellant’s contract calls for a ‘good and marketable title.’ The authorities hold that to render a title marketable it is only necessary that it shall be free from reasonable doubt; in other words, that a purchaser is not' entitled to demand a title absolutely free from every possible technical suspicion; that he can only demand such title as a reasonably well informed and intelligent purchaser acting upon business principles would be willing to accept.”
The well-established rule that a vendee contracting for a good title is entitled to demand and receive a marketable title, has been adopted by the courts to protect him from such defects only as would cause a prudent and cautious purchaser to entertain a just apprehension of future trouble. It was not adopted to arm and equip the vendee with a sword of defense, in the form of technical and unsubstantial objections, to aid him in escaping liability in the event of his desire to avoid the obligations imposed upon him by the contract into which he has voluntarily entered. Courts of justice, in
Maupin, in his work on Marketable Title to Real Estate (2d ed.), § 283, page 707, says:
“It is impossible in the nature of things that there should be a mathematical certainty of a good title. Such a thing as absolute security in the purchase of real estate is unknown. But a bare possibility that a title may be affected from certain causes, when the highest possible evidence of which the nature of the case admits, amounting to a moral certainty, is given that no such cause exists, does not render the title doubtful. The purchaser cannot demand a title absolutely free from all suspicion or possible defect. He can simply require a title such as prudent men, well advised as to the facts and their legal bearing, would be willing to accept. The doubts must be such as will affect the market value of the estate. They must not be made up for the occasion, based on captious, frivolous and astute niceties; they must be such as would induce a prudent man to hesitate in accepting a title affected by them.”
From the evidence before us, we are convinced that the appellant, having failed to sell the property at a profit and fearing he could not do so, repented of his contract, caused his attorney to search out all possible objections, and then, by asserting the title to be bad beyond all possibility of cure, endeavored to avoid the performance of his contract and secure a return of his purchase money, without affording the respondent reasonable time within which to remove the alleged technical defects. This being true, he should not be permitted to recover.
It would unnecessarily extend this opinion were we to indulge in a discussion of each and all of the objections made. No one of them was of sufficient importance to justify the action of appellant, or warranted the rejection of the title
Respondent, in answer to appellant’s objection that the mortgage was an apparent lien, not being released, insisted that when the mortgage and title both passed to W. H. Ramsey, a merger followed, and that the lien ceased to exist. He also stated that the note was barred by the statute of limitations, that it had been destroyed, and that he had the original mortgage in his possession, which he tendered to the appellant for inspection. Appellant now insists that the mortgage was such an apparent lien as to constitute a serious cloud upon the title and render it unmarketable, it not appearing from the abstract that at the time W. H. Ramsey obtained the title, he still owned the note and mortgage. He further contends that, as there was not, prior to the year 1897, any statute requiring assignments of mortgages to be recorded, the note and mortgage might have been transferred to an innocent holder for value, whose lien under the rule announced in Howard v. Shaw, 10 Wash. 151, 38 Pac. 746, would be fully protected.
A release of this mortgage would doubtless have been ob-
“Whatever may be the circumstances, or between whatever parties, equity will never allow a merger to be prevented and a mortgage or other security to be kept alive, when this result would aid in carrying a fraud or other unconscientious wrong into effect, under the color of legal forms. Equity only interposes to prevent a merger, in order thereby to work substantial justice.” 2 Pomeroy’s Equity Jurisprudence (3d ed.), § 794.
In Chase Nat. Bank v. Hastings, 20 Wash. 433, 55 Pac. 574, this court said:
“We think the rule is quite well settled that, wherever it is more beneficial to the person taking the fee that the mortgage upon it should stand, that circumstance should control in determining the question of intention, and equity will give effect to it by preventing merger and treating the mortgage as a subsisting charge. But where, as in the present case, the whole title, legal and equitable, unites in the same person and there is no intervening outstanding interest or lien, and it cannot be perceived that the keeping alive of the mortgage will be to the advantage of the grantee or essential to the protection of any right, and where to do so will work a hardship upon third parties, the acceptance of the deed extinguishes the mortgage and a merger is deemed to have taken place.”
It could not have been the intention of W. H. Ramsey to continue the mortgage lien; nor does any reason appear why
In the case last cited the facts appear .to have been quite similar to those the appellant contends might arise here. The opinion is directly in point, and forcibly disposes of appellant’s contentions. Appellant’s other objections were equally devoid of merit. He was unwilling to' allow the respondent any time within which to correct the title or remove the objections stated, but flatly refused to perform the contract on his part.
We find no prejudicial error in the record. The findings are sustained by competent evidence, and support the final judgment, which is affirmed.
Rudicin, C. J., Mount, Chadwick, Pakkek, and Dunbak, JJ., concur.