Summy v. Ramsey

• Decision Date: 04 May 1909
• Citation: 101 P. 506,53 Wash. 93
• Parties: SUMMY v. RAMSEY et ux.
• Court: Washington Supreme Court

101 P. 506

53 Wash. 93

SUMMY v. RAMSEY et ux.

Supreme Court of Washington

May 4, 1909

Appeal from Superior Court, King County; Boyd J. Tallman, Judge.

Action by E. B. Summy against S. V. Ramsey and wife. Judgment for defendants, and plaintiff appeals. Affirmed.

Alfred E. parker, for appellant.

Austin E. Griffiths and Paul Shaffrath, for respondents.

CROW J.

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 facts pertinent to a consideration of this appeal: That on or about February 11, 1907, the respondents executed a written instrument, accepted by appellant, whereby they contracted to sell to appellant lots 1 and 2 in block 6 in W. R. Brawley's addition, and the east 88 feet of lot 4 in block A of Yesler's First addition, all in the city of Seattle, for the sum of $45,000 payable $1,000 cash $11,500 further cash on completion of the transfer, and $32,500 by note and first-mortgage deed on the property. That the contract also contained the following stipulation '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 $11,500.00 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 cannot 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 V. 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 18 separate defects and irregularities. That appellant on March 16, 1907, returned the abstracts and opinion to the respondent Samuel V. Ramsey, with the following letter: 'Seattle, Wash., March 16, 1907. Mr Samuel V. Ramsey, City--Dear Sir: I inclose herewith the opinion of my attorney, Mr. A. E. Parker, on title to lots 1 and 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 inclosed. 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 26th 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.

The real issue before us is whether the abstracts did show a good title. Appellant contends that a vendor, who agrees to deliver an abstract showing good title, is bound to furnish one that shows not only a good, but also a marketable, title, and that the vendee cannot be compelled to accept an unmarketable title. This position is well taken but suggests the question as to what in law constitutes such a good and marketable title as a reasonable purchaser should be compelled to accept. In Eggers v. Busch, 154 Ill. 604, 39 N.E. 619, the Supreme Court of Illinois defines a 'marketable title' as follows: '* * * A title not subject to such reasonable doubt as would create a just apprehension of its validity in the mind of a reasonable, 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, 100 P. 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...