Gill v. Wells

Miller, J., delivered the opinion of the Court. It is a principle, obviously just, in the law relating to the specific performance of contracts, that the vendee is entitled to have that for which he contracts, before he can be compelled to part with the consideration he agreed to pay. He is not hound to take an estate fettered with incumbrances by which he may he subjected to litigation to procure his title; and in a contract such as is sought to he enforced in this case, the vendee is not hound to accept ⁴⁹⁴ anything short of an unincumbered legal estate in fee, the title to which is free from reasonable doubt. Buchanan vs. Lorman, 3 Gill, 77 ; Owings vs. Baldwin, 8 Gill, 350 ; Fry on Specific Performance, sec. 573; Waterman on Specific Performance, sec. 411.

The rule that the title must be free from reasonable doubt is comparatively modern, for it was at one time held to be the duty of the Courts in all cases of specific performance to decide either for or against the validity of the title, and compel the 'purchaser to take it as good or dismiss the hill on the ground that it was bad; and the departure from the old rule was often deprecated by Lord Eldon, and notably in the case of Vancouber vs. Bliss, 11 Ves., 458. The modern doctrine however is sustained by abundant authority both in England and in this country, and is ably vindicated by Mr. Fry in his excellent book on Specific Performance of Contracts, a passage from which on this subject is well worth quoting. “The rule,” says the learned author, “has also been objected to as being logically absurd as well as practically injurious; for every title it is said is good or bad, and if so, the Court ought to know nothing of. a doubtful title. But, notwithstanding such doubts, it may be submitted that, having regard to the nature of a suit for specific performance, the rule in question is necessary in point of practical justice and correct in reasoning. It must he remembered that the decree of the Court in such a suit is a judgment in personam and not in rem; that it binds only those who are parties to the suit and those claiming under them, and in no way decides the question in issue as against the rest of the world; and that doubts on the title of an estate are often questions liable to he discussed between the owner of the estate, and some third, person not before the Court, and therefore not bound by its decision.

If, therefore, there be any reasonable chance that some third person may raise a question against the owner of the estate after the completion of ⁴⁹⁵ the contract, the Court considers this to he a circumstance which renders the bargain a hard one for the purchaser, and one which in the exercise of its discretion it will not compel him to execute. Though every title must in itself he either good or bad, there must he many titles which the Court cannot pronounce with certainty to belong to either of these categories, in the absence of the parties interested in supporting both alternatives, and without having heard the evidence they might have to produce, and the arguments they might be able to urge; and it is in the absence of these parties that the question is generally agitated in suits for specific performance. The Court when fully informed must know whether a title he good or bad; when partially informed, it often may and ought to doubt.” Fry, secs. 575, 576. As to what doubts will be sufficient no general rule can be laid down.

In the case of Dobbs vs. Norcross, 24 N. J. Eq. Rep., 327, the Chancellor said: “Every purchaser of land has a right to demand a title which shall put him in all reasonable security, and which shall protect him from anxiety, lest annoying, if not successful suits, be brought against him, and probably take from him or his representatives land upon which money was invested. He should have a title which shall enable him not only to hold his land, but to hold it in peace; and if he wishes to sell it, to he reasonably sure that no flaw or doubt will come up to disturb its marketable value.”' But a threat or even the possibility of a contest, will not he sufficient. The doubt must be considerable and rational, such as would and ought to induce a prudent man to pause and hesitate ; not based on captious, frivolous and astute niceties, but such as to produce real bona fide hesitation in the mind of the Chancellor.

Waterman on Spec. Perf., sec. 412. We are therefore required to determine whether, in view of the law as thus stated, the title, in the present case, tendered by Mrs. Wells to Mr. Grill, to the farm, the ⁴⁹⁶ subject of the contract between them, is so far free from reasonable doubt, as to justify the affirmance of the decree ordering the contract to be specifically executed. That title may be briefly stated as follows: Mrs. Wells became the purchaser of the farm at a trustee's sale, under a decree in equity.

The sale was made on the 20th of March, 1860, and the deed to her from Mr. Hagner, the trustee, was not made until the 12th of August, 1881. The proceedings in the equity case have been- offered in evidence, and without going largely into details, they show that Mrs. Wells, and her infant daughter, were, in 1853, the devisees of the farm under the will of Dr. Wells, the deceased husband of Mrs. Wells, and the father of the infant, who was his sole heir at law. Mr. Geo. Wells had also a contingent interest in it under the will, which, however,- ceased on the 27th of January, 1861, when the daughter attained the age of eighteen.

Throwing out of view, as we may, this contingent interest, the infant, by the terms of the will, became the owner in fee, of the whole estate, subject to a life estate of her mother in one-half of it. The mother was the testamentary guardian of the infant, and in July, 1858, she filed in the Circuit Court for Howard County, where the land was situated, a bill for a sale thereof, consenting to a sale of her life estate, and alleging that it would be for the interest and advantage of the infant, as well as of all others interested therein, that the same should be sold, and the proceeds invested under the order of the Court, subject to the provisions of the will. The infant answered by guardian ad litem, and George Wells, the other defendant, also answered, assenting to a sale, so far as his contingent interest was concerned, upon condition that the proceeds be invested as prayed by the bill. Proof was then taken, sustaining, the averments of the bill as to the propriety of the sale, and in September, 1858, a decree for a sale in the usual form was passed by the Court.

Mr. Hagner, the trustee, had the ⁴⁹⁷ property surveyed, and after several ineffectual offers sold part of the land to Mr. Baldwin at private sale, on the 16th of February, 1860, and afterwards, on the 20th of March following, sold the rest of it (being the farm in question) at public sale to Mrs. Wells, for $11,885. By the terms of the decree one-third of the purchase money was to he paid in cash on the day of sale, or the final ratification thereof, and the residue in two equal annual instalments, the whole to bear interest from the day of sale, and to be secured by the bonds of the purchasers satisfactory to the trustee. These sales were duly reported and finally ratified in August, 1860. Baldwin paid his purchase money and the net amount ($1718.88) was with the sanction and by the order of the Court, invested in a mortgage for the benefit of the infant.

An auditor’s account was also stated and ratified in July, 1861, showing the whole amount of proceeds, and the costs, commissions and expenses of the sale. After these proceedings nothing further was done in the case, until the 2nd of July, 1881, a period of nearly twenty years. On that day, which was about two months after she had contracted to sell the farm to the appellant; Mrs. Wells filed a petition in the case stating that she had been reported the purchaser of the property, and though she was entitled to have a conveyance therefor, in point of fact through some inadvertence, no deed has ever yet been executed to her by the trustee, but that she took possession of the property from the time of the sale, and has ever since been in possession thereof; that she now desires to sell the same but is embarrassed by the fact that no formal deed has been executed to her; that the trustee is willing and ready to execute the same, but the original plat by which the property was sold is missing from the proceedings, and cannot now be found, and it will therefore be necessary to have a new plat made ; that the trustee has long since paid out all the money received hv him as proceeds ⁴⁹⁸ of the sale, and is therefore without funds to pay for a new survey and plat, hut she is willing herself to incur this expense, and she therefore prays for an order authorizing the trustee to have the survey and plat made so that the metes and bounds of the land thus sold to her may he accurately ascertained and set out in the conveyance to be made to her. Upon this petition Judge Hagner, the trustee, endorsed his assent to the passage of such order thereon as to the Court may seem proper, and admits that, the land was sold by him to the petitioner as stated in her petition, but he adds “that he received the costs, commissions, and expenses from the purchaser, but none of the residue of the purchase money, as the proceeds