Levy v. Iroquois Building Co.

Robinson, C. J., delivered the opinion of the Court. The plaintiff company, being the owner in fee of a lot of ground on McCullough street, sold a portion thereof, fronting 50 feet on said street, to the defendant, for $6,666.67. The defendant paid $25 in cash, and was to pay the balance so soon as the title could be examined. ' This is a bill by the plaintiff to enforce the specific performance of the contract of sale. The defendant refuses to take the title tendered ³⁰³ by the plaintiff, on the ground that the title is not a marketable title.

The lot originally belonged to the late Bishop Ames, and he, on 3rd April, 1879, conveyed it to his daughter, Annie M. Hiss, the consideration set forth in the deed being the sum of five dollars iand natural love and affection. On the 16th January, 1892, Mrs. Hiss and her husband leased the lot to the plaintiff for 99 years, and the deed was recorded on the same day. The lease was in consideration of $5,000 in hand paid by the lessee, now plaintiff, and in further consideration of the payment of an annual rent of $600; and this rent, by a covenant in the lease, was redeemable at any time after 16th January, 1894, upon the payment of $10,000 and all accrued and accruing rent to the date of redemption. On the 1st February, 1894, Mrs. Hiss and her husband conveyed the lot in fee to the plaintiff.

The consideration set forth in the deed being $10,000 and all accrued rent, the plaintiff having exercised its right to redeem the rent of $600 per annum reserved in the lease. The effect of this deed was to merge the leasehold interest then held by the plaintiff, thereby making it the owner in fee. By the title papers on record, the plaintiff had therefore a clear fee simple title to the property. It appears, however, that Bishop Ames made his last will and testament on the 7th of April, 1879, four days after the execution of the deed to Mrs. Hiss, and on a caveat being filed to the will by Mrs. Weik, a granddaughter of the Bishop, on the ground that .it was procured by the fraud and undue influence practised ';and exercised over him by Mrs. Hiss, the will was set aside, c The caveat was filed in 1892, before the lot was leased ,by Mrs. Hiss to the plaintiff, and the judgment of the lower Court setting aside the will was affirmed by this Court in 1894, before the execution of the deed by her conveying .■the reversion.

Being apprehensive under these circumstances that proceedings might be instituted by Mrs. Weik -to! s.et aside the deed of Bishop Ames to Mrs. Hiss, the defendant submitted to her and her husband a deed relinquish ³⁰⁴ ing all right and title to the lot in question, and which they refused to execute. And on being pressed by the inquiry, they declined to say whether or not they intended to assail the deed to Mrs. Hiss, the reply being that they would exercise their legal rights whenever it stated their convenience. And the question is whether, in view of these facts, the plaintiff has a marketable title which a Court of Equity will enforce the defendant to accept ? The question as to what constitutes a marketable title has been, of course, the subject of a good deal of consideration by the Courts, and the books are full of cases in which the matter has been considered.

The rule at one time was to decide in