Glassman v. Condon

• Decision Date: 14 April 1904
• Docket Number: 1522
• Citation: 27 Utah 463,76 P. 343
• Court: Utah Supreme Court
• Parties: WILLIAM GLASSMAN, Respondent, v. LIZZIE CONDON, Appellant

76 P. 343

27 Utah 463

WILLIAM GLASSMAN, Respondent, v. LIZZIE CONDON, Appellant

No. 1522

Supreme Court of Utah

April 14, 1904

Appeal from the Second District Court, Weber County.--Hon. H. H Rolapp, Judge.

Action in the nature of specific performance. From a judgment in favor of the plaintiff, the defendant appealed.

REVERSED.

James N. Kimball, Esq., and Thomas Maloney, Esq., for appellant.

John E Bagley, Esq. for respondent.

McCARTY J., delivered the opinion of the court. BASKIN, C. J concur. BARTCH, J., concurs in the judgment of reversal.

OPINION

McCARTY, J.

STATEMENT OF FACTS.

The facts and circumstances out of which this action arose are as follows: On the 22d day of August, 1902, plaintiff was, and for several years prior thereto had been, the owner of a certain piece of real estate four rods in width by 134 feet in length, situate in Ogden City, Utah. On the date mentioned plaintiff entered into a written contract with defendant, whereby he agreed to sell to defendant a portion of the ground referred to. The agreement, so far, as material here, is as follows:

"Witnesseth: That in consideration of the stipulations herein contained and the payments to be made as herein specified, the first party (William Glassman) agrees to sell to the second party (Lizzie Condon) the following described premises situate in the City of Ogden, Utah, to-wit: [then follows the description of a piece of land one rod in width and 134 feet in length] for the sum of six hundred and twenty-five ($ 625.00) dollars, on which said sum the said party of the second part has paid the sum of one hundred ($ 100.00) dollars, being a part of the purchase money.

"And the said party of the second part in consideration of the premises hereby agrees to pay to the said party of the first part the following sums, to-wit: Two hundred and seventy-five ($ 275.00) dollars on the first day of October, 1902, leaving a balance of two hundred and fifty ($ 250.00) dollars, for which the party of the second part assumes and agrees to pay two hundred and fifty ($ 250.00) dollars of a mortgage of one thousand ($ 1,000.00) dollars now existing and covering on the above described land with other lands.

"The party of the first part agrees to make to the party of the second part a warranty deed upon the payment of two hundred and seventy-five ($ 275.00) dollars on October 1, 1902, subject to a mortgage of two hundred and fifty ($ 250.00) dollars, which the party of the second part assumes and agrees to pay.

"The party of the first part shall hold possession of the above described premises until January 1, 1903, at which time full possession shall be given to the party of the second part.

"The party of the first part shall pay all taxes and assessments up to and including the year 1902."

Then follows a stipulation that, in case default be made by the second party (defendant), "the party of the first part shall have the right to declare the contract null and void, and all rights and interest hereby created or then existing in favor of said second party, or derived under this contract, shall utterly cease and determine, and the premises hereby contracted for shall revert to and revest in said first party." It is also provided that "the times of payment is the essence of this contract." Signed, "William Glassman. Lizzie Condon."

On October 2, 1902, plaintiff tendered defendant a warranty deed, signed and acknowledged in due form, and demanded payment of the $ 275 due under the terms of the agreement. Defendant declined to accept the deed, and refused to make any further payments on the purchase price of the land on the ground that the $ 1,000 mortgage mentioned in the contract remained unpaid, and was a subsisting, unsatisfied lien on the rod of ground which defendant had contracted to purchase and pay for as provided in the foregoing agreement. It is admitted that at the time plaintiff commenced this action and at the time of trial the mortgage of $ 1,000 mentioned in the agreement remained unsatisfied, and was a lien upon the land in question, whereupon this suit was instituted to recover the said sum of $ 275. The issues were tried by a jury, who returned a verdict in favor of plaintiff. When plaintiff rested his case, defendant requested the court to direct a verdict in her favor "no cause of action," which was refused. The request was again made after both sides had rested their case, and was again refused. Defendant appeals.

McCARTY, J., after stating the facts, delivered the opinion of the court.

Appellant contends that by the terms of the contract respondent was bound to furnish her with a good title, free from all incumbrances, with the exception of $ 250 of the $ 1,000 mortgage mentioned in the contract, and, having failed to do so, he is precluded from recovering in this action. On the other hand, respondent insists that, as appellant knew of the existence of the mortgage at the time the contract was signed, she is presumed to have contracted for and intended to purchase the property subject to the entire mortgage. It is an elementary principle of law that every purchaser of real property has a right to demand a title free from incumbrances and defects. And the great weight of authority holds that the legal effect of contracts to furnish a good title or a warranty deed, under a contract of purchase, is that the vendor, before he can compel payment of the purchase price, or any part thereof, must make and tender a title free from incumbrances and unclouded; in other words, he must produce and tender a marketable title, unless the contract by its terms, or the circumstances leading up to and surrounding the transaction, show the parties intended that the sale and transfer of the property should be made subject to the defects, if any, in the title. Mr. Warvelle, in his work on Vendors, sec. 46, vol. 1, states the rule to be that "Unless there has been some stipulation as to the character of the title to the estate to be conveyed, a marketable title is always presumed, and unless this fact can be satisfactorily established by the vendor the vendee will not be compelled to complete the purchase or pay for the land." And again he says on page 373: "A purchaser in every sale, unless he specially stipulates to the contrary, has a right to expect that he will acquire a valid and unassailable title, and the law presumes that he purchases with that object in view." In the case of Swayne v. Lyon, 67 Pa. 436, Mr. Justice Sharswood, speaking for the court, said: "It...