6

contract calls for a "title of record." It may be so indubitably good on the face of the evidence adduced by vendor that any reasonable purchaser ought to be satisfied and so it may be marketable." Or the evidence may still leave a doubt, as distinguished from a "suspicion" in the court's mind. Many courts have spoken as if this were the test. Thus in Amery v. Grocock Sir John Leach, V. C., said:

...

"The . . . rule . . . seems to be, that if the Case be such, that sitting before a Jury, it would be the duty of a Judge to give a clear direction in favour of the fact; then it is to be considered as without reasonable doubt; but if it would be the duty of a Judge to leave it to the Jury to pronounce upon the effect of the Evidence, then it is to be considered as too doubtful to conclude a Purchaser."

This has been approved by the Court of Appeals in New York.10 But it is subject to two observations. In the first place, when we say that the title must be free from reasonable doubt, we must mean not merely free from reasonable doubt in the mind of the court of equity passing on the suit for specific performance, but also free from reasonable possibility of doubt on the part of competent persons who may be called on to pass upon the title." For 384, 73 Pac. 851 (1903); Crim v. Umbsen, 155 Cal. 697, 103 Pac. 178 (1909); Allen ». Globe Milling Co., 156 Cal. 286, 104 Pac. 305 (1909); Las Animas Co. v. Preciado, 167 Cal. 580, 140 Pac. 239 (1914) (semble "a title not deducible of record is clouded and unmerchantable").

In Oregon it is said that "a marketable title means one appearing to be such by the record of conveyances or other public memorial. It means that the title must appear of record and not rest in parol." Lockhart v. Ferrey, 59 Ore. 179, 183, 115 Pac. 431, 433 (1911). But in that case the contract called for "an abstract showing a marketable title." In Washington also it is said that a marketable title is one "that does not require the purchaser to inquire outside of the record." Watson v. Boyle, 55 Wash. 141, 104 Pac. 147 (1909); Coonrod v. Studebaker, 53 Wash. 32, 101 Pac. 489 (1909). In these cases too, however, the contracts called for abstracts showing title.

• Attebery v. Blair, 244 Ill. 363, 91 N. E. 475 (1910); Page v. Greeley, 75 Ill. 400 (1874); Zunker v. Kuehn, 113 Wis. 421, 88 N. W. 605 (1002).

7 Tewksbury v. Howard, 138 Ind. 103, 37 N. E. 355 (1893); Gaines v. Jones, 86 Ky. 527, 7 S. W. 25 (1888); Arey v. Baer, 112 Md. 541, 76 Atl. 843 (1910); Forsyth v. Leslie, 74 App. Div. 517, 77 N. Y. Supp. 826 (1902); Alderman v. McKnight, 95 S. C. 245, 78 S. E. 982 (1913); Greer v. International Ship Yards Co., 43 Tex. Civ. App. 370, 96 S. W. 79 (1906).

8 Shriver v. Shriver, 86 N. Y. 575, 585 (1881).

96 Madd. 54, 57 (1821).

10 Shriver v. Shriver, 86 N. Y. 575, 584 (1881).

11 "I think, therefore, that in these cases it is the duty of the Court not to have regard to its own opinion only, but to take into account what the opinion of other

the jus disponendi is one of the most valuable of the incidents of ownership, and the court of equity ought to be assured not merely that the purchaser will not be disturbed in his enjoyment of the property but also that he will be able to dispose of it to the ordinary, reasonably cautious buyer.12 Again, it may be that a court would direct a verdict upon the case made by the vendor and yet a third person, not bound by the decree, who might later assert a claim, might well adduce further evidence that might affect the result. Hence the court of equity ought to be assured reasonably that the facts are as fully before it as they could be in any litigation over the title that may arise hereafter. This is particularly true where the title depends on adverse possession. If, therefore, whether or not the title is good may turn on a question of fact depending on evidence that may not all be before the court, the title ought not to be held marketable." 13

Another question arose in Jamison v. Van Auken.14 The contract called for delivery of "an abstract showing good and merchantable title." As generally understood by the courts, this means a title shown by the public records to be abstracted and is not satisfied by a title depending on adverse possession.15 But the court, competent persons may be." Turner, V. C., in Pyrke v. Waddingham, 10 Hare, 1, 8 (1852). The "judicial mind" spoken of in some cases must mean the judicial mind applied to the question how other competent persons would regard the title. Hedderly v. Johnson, 42 Minn. 443, 445, 44 N. W. 527 (1890); Bruegger v. Cartier, 29 N. D. 575, 581, 151 N. W. 34 (1915).

12 A purchaser is entitled to a title such "as will bring, in the market as high a price with, as without the objection." Caton, J., in Brown v. Cannon, 10 Ill. 174, 182 (1848); Flood v. Von Macard, 102 Wash. 140, 147, 172 Pac. 884, 886 (1918).

13 Watkins v. Pfeiffer, 29 Ky. L. Rep. 97, 92 S. W. 562 (1906); Trustees v. Rother, 83 Md. 289, 34 Atl. 843 (1896); Baumeister v. Silver, 98 Md. 418, 56 Atl. 825 (1904); Noyes v. Johnson, 139 Mass. 436, 31 N. E. 767 (1885); Conley v. Finn, 171 Mass. 70, 50 N. E. 460 (1898); Scannell v. American Soda Fountain Co., 161 Mo. 606, 61 S. W. 889 (1901); Sulk v. Tumulty, 77 N. J. Eq. 97, 75 Atl. 757 (1910); Freedman v. Oppenheim, 187 N. Y. 101, 79 N. E. 841 (1907); Weil v. Radley, 31 App. Div. 25, 52 N. Y. Supp. 398 (1898); Kahn v. Mount, 46 App. Div. 84, 61 N. Y. Supp. 358 (1899); Binzen v. Epstein, 58 App. Div. 304, 69 N. Y. Supp. 789 (1901); Carolan v. Yoran, 104 App. Div. 488, 93 N. Y. Supp. 935 (1905); Lalor v. Tooker, 130 App. Div. 11, 114 N. Y. Supp. 403 (1909); McLaughlin v. Brown, 126 S. W. (Tex. Civ. App.) 292 (1910). 14 Supra, note 4.

15 Page v. Greeley, 75 Ill. 400 (1874); Attebery v. Blair, 244 Ill. 363, 91 N. E. 475 (1910); Bear v. Fletcher, 252 Ill. 206, 96 N. E. 997 (1911); Knox v. Despain, 156 Ill. App. 134 (1910); Constantine v. East, 8 Ind. App. 291, 35 N. E. 844 (1893); Fagan v. Hook, 134 Ia. 381, 105 N. W. 155 (1907); Upton v. Smith, 183 Ia. 588, 166 N. W. 268 (1918); Lake Erie Land Co. v. Chilinski, 197 Mich. 214, 163 N. W. 929 (1917); Brad

departing from the prior current of authority in that state, held that a marketable title depending on adverse possession and shown outside of the record and abstract would suffice. The same result was reached in Kenefick v. Shumaker,16 which also departs from an earlier decision in the same state. Perhaps something must depend on the purposes for which land is bought and held, the practice of conveyancing and the form of the records in the particular state. As the Supreme Court of Washington says:

"Few persons care for that form of title which requires a resort to parol evidence to establish a link in its chain. And there is a well-founded reason for such dislike. Other conditions being equal, property so held is always passed by when offered for sale in competition with property held by title deducible of record. Such a title is more subject to attack by speculators in defective titles than is a record title, and when attacked more difficulty is experienced in establishing it than is in establishing the latter form of title. Land so held cannot be left vacant with the same safety as land held by title of record, and it seems that no matter how incontestable the parol proofs of title may be, a constant resort to the courts is necessary to enforce rights and contracts in connection therewith which pass unquestioned with other forms of title. For these and other reasons, such a title is undesirable.” 17

Without going as far as the courts of California, Oregon and Washington and holding that such titles are not marketable, we may see good reason why purchasers should contract, not merely for a good title, but for one which they may at any time show to be good by the public records. Where land is much bought and sold a contract calling for an abstract showing title may well mean more than a contract calling only for a marketable title in the sense which courts attach to that term. The Supreme Court of Missouri denies this, doubting whether a contract for a record title as distinguished from an "actual title" was ever intentionally made. It argues that the holder of the record title may not be the actual

way v. Miller, 200 Mich. 648, 167 N. W. 15 (1918); Thompson v. Dickerson, 68 Mo. App. 535 (1897); Bruce v. Wolfe, 102 Mo. App. 384, 76 S. W. 723 (1903); St. Clair v. Hellweg, 173 Mo. App. 660, 159 S. W. 17 (1913); McLane v. Petty, 159 S. W. (Tex. Civ. App.) 891 (1913); Moser v. Tucker, 195 S. W. (Tex. Civ. App.) 259 (1917). 16 116 N. E. (Ind. App.) 319 (1917).

17 Watson v. Boyle, 55 Wash. 141, 143, 104 Pac. 147 (1908). "Titles by adverse possession are in disfavor with persons contemplating the purchase of property." Crocker Point Ass'n v. Gouraud, 224 N. Y. 343, 350, 120 N. E. 737 (1918).

owner and that actual ownership is the thing of paramount importance. But actual ownership is called for by the mere contract of sale without more.18 It is important for the purchaser that vendor be both actual owner and owner of record. Hence when the contract calls for an abstract showing title in vendor it calls specifically for a substantial advantage to purchaser which he ought to be allowed to insist upon.

13. THE STATUTE OF FRAUDS

No less than twenty-three cases during the past year turned on alleged oral contracts to leave property by will,19 or to adopt and leave property to the adopted person as to a child.20 As one reads these cases he cannot but have an uneasy feeling that general expectations of becoming the object of a testator's bounty often ripen into a contract after testator's death. Where the courts do not require the acts of part performance relied upon to take the case out of the Statute of Frauds to be unequivocal and indubitably referable to a contract as to the very land in question, but are content with a case of great hardship upon plaintiff, it is not hard to do for the deceased by proof of his casual "admissions" in conversation over a series of years what the law would not have permitted him to do in person otherwise than by jealously guarded formalities. It is not merely the Statute of Frauds that is involved

18 "It should be borne in mind that in contracts for the sale of real estate, an agreement to make a good title is always implied, unless the liability is expressly excluded." SUGDEN, VENDORS AND PURCHASERS, 14 ed., 16.

19 Starrett v. Dickson, 136 Ark. 326, 206 S. W. 441 (1918); Trout v. Ogilvie, 182 Pac. (Cal. App.) 333 (1919); Kurtz v. De Johnson, 29 Cal. App. 246, 183 Pac. 588 (1919); Landrum v. Rivers, 148 Ga. 774, 98 S. E. 477 (1919); Stewart v. Todd, 173 N. W. (Ia.) 619 (1919); McInnerny v. Graham, 174 N. W. (Ia.) 395 (1919); Hoppes v. Hoppes, 124 N. E. (Ind. App.) 772 (1919); James v. Lane, 103 Kan. 540, 175 Pac. 387 (1918); Taylor v. Holyfield, 104 Kan. 587, 180 Pac. 208 (1919); Eastman v. Eastman, 117 Me. 276, 104 Atl. 1 (1918); Noyes v. Noyes, 233 Mass. 55, 123 N. E. 395 (1919); Fleming v. Fleming, 202 Mich. 615, 168 N. W. 457 (1918); Powers v. Norton, 174 N. W. (Neb.) 223 (1919); Gettins v. Boyle, 184 App. Div. 499, 171 N. Y. Supp. 711 (1918); Hermann v. Ludwig, 186 App. Div. 287, 174 N. Y. Supp. 469 (1919); Smith v. Furst, 186 App. Div. 452, 174 N. Y. Supp. 481 (1919); Herr v. McAllister, 181 Pac. (Ore.) 741 (1919); Williams v. Williams, 123 Va. 643, 96 S. E. 749 (1918); Alexander v. Lewes, 104 Wash. 32, 175 Pac. 572 (1918).

20 Pantel v. Bower, 104 Kan. 18, 178 Pac. 241 (1919); Bromeling v. Bromeling, 202 Mich. 474, 168 N. W. 431 (1918); Ball v. Brooks, 173 N. Y. Supp. (N. Y. Misc.) 746 (1918); Wall v. McEnnery, 105 Wash. 445, 178 Pac. 631 (1919).

in these cases but the Statute of Wills as well. In a laudable desire to do justice to particular plaintiffs, courts of equity should not overlook the sound policy behind these two statutes. In too many American jurisdictions oral contracts as to disposition of property after the owner's death have come to be enforced against the owner's heirs or representatives much too lightly. Apparently to meet this mischief, California in 1905 added the following clause to the Statute of Frauds:

"An agreement which by its terms is not to be performed during the lifetime of the promisor, or an agreement to devise or bequeath any property, or to make any provision for any person by will." 21

May a case be taken out of the foregoing provision in equity by the same acts of part performance as would suffice for a contract of sale? This question was before the court in Trout v. Ogilvie.22 After a provision substantially in the terms of section 4 of the Statute of Frauds, the Civil Code of California (sec. 1741) adds:

"But this does not abridge the power of any court to compel the specific performance of any agreement for the sale of real property in case of part performance thereof."

It was considered that this proviso applied only to contracts for the sale of land and that a contract to leave property by will would not be taken out of the purview of the amendment to section 1624 by acts of part performance. The result is reached on the ground that section 1624 provides for seven cases, of which contracts for the sale of land are one and contracts to devise or bequeath are another, and that the exception in section 1741 by its terms applies only to the former. If a court were inclined to favor the taking of cases out of the statute, it might say that section 1741 was but declaratory of the pre-existing law, that the word "sale" had been construed to include contracts to leave by will or on intestacy 23

21 LAWS OF CALIFORNIA, 1905, p. 611. This provision is now subdiv. 7 of § 1624 of the Civil Code.

22 182 Pac. (Cal. App.) 333 (1919).

23 Manning v. Pippen, 95 Ala. 537, 11 So. 56 (1891); Allen v. Bromberg, 163 Ala. 620, 50 So. 884 (1909); Mayfield v. Cook, 77 So. (Ala.) 713 (1918), but see Adams v. Adams, 26 Ala. 272 (1855); Gordon v. Spellman, 145 Ga. 682, 89 S. E. 749 (1916); Hoopeston Library v. Eaton, 283 Ill. 449, 119 N. E. 647 (1918); Wallace v. Long, 105 Ind. 522, 5 N. E. 666 (1885), distinguishing Lee v. Carter, 52 Ind. 342 (1876); Judy v. Gilbert, 77 Ind. 96 (1881); Wright v. Green, 119 N. E. (Ind. App.) 379 (1918); Hamilton v. Thirston, 93 Md. 213, 48 Atl. 709 (1901); Gould v. Mansfield, 103 Mass. 408