Nicol v. Carr

• Decision Date: 01 January 1860
• Citation: 35 Pa. 381
• Parties: Nicol versus Carr.
• Court: Pennsylvania Supreme Court

Page 381

35 Pa. 381

Nicol versus Carr.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Susquehanna county.

Bentley & Fitch and R. B. Little, for the plaintiff in error.

W. & W. H. Jessup, for the defendant in error.—This title is clearly of such doubtful character that the defendant ought not to be compelled to accept it: Colwell v. Hamilton, 10 Watts 416; Wetherill v. Mecke, Brightly 142, n.; Abel v. Heathcote, 2 Ves. Jr. 100; Dalzell v. Crawford, 1 Pars. 45; Sugden on Vendors 243; Rawle on Covenants 433.

The opinion of the court was delivered by WOODWARD, J.

The plaintiff covenanted to make a good and sufficient title to the defendant, in consideration of the purchase-money agreed by the latter to be paid. Such as he could make has not been accepted, and therefore the agreement is still executory. This is an action at law upon the agreement, to recover the purchase-money, but under our blended system of law and equity, it is to be treated upon equitable principles. It is quite apparent, that to allow the plaintiff to recover, would be, in effect, to decree specific performance of the agreement; and the question therefore is, would a court of equity make such a decree with the large mortgages overhanging? Certainly not; because in a court of equity a vendor is bound to tender, or be ready to make a title that is marketable; which means a title that involves no considerable or rational doubt either as to matter of law or fact. The distinction between good and marketable titles is peculiar to courts of equity, being unknown in courts of law, where the only question is, whether the title is good or bad. "There can be no such thing as a doubtful title in a court of justice," said Chief Baron EYRE, in Gale v. Gale, 2 Coxe 145; "it must be either right or wrong, and the thickness of the medium through which the point is to be seen makes no difference in the end." But the equity doctrine is, that a title is not to be forced upon a purchaser, which is not so free from difficulty as to law and fact, that on a resale an unwilling purchaser shall be unable to raise any question, which may appear to a judge sitting in equity, so doubtful, that a title involving it ought not to be enforced. The doubts, however, which will operate on courts of equity, are not doubts made up for the occasion — doubts based on captious, frivolous, and astute niceties, but such as would and ought to induce a prudent man to pause and hesitate in accepting a title...