Williams v. Bricker, et al., 83 Kan. 53, 109 Pac. 998, 30 L. R. A. (N. S.) 343. A will provided that a life estate should be given to testator's wife, and the remainder to the four children, providing that if any of the four children should die before the life estate was terminated, the share of such deceased child shall go to such decedent's children, and if there are no children then to be divided equally between the remaining children of the testator. The widow and the four children joined in giving a warranty deed to the vendor in this case. Before the widow of the testator died one of the children died, leaving heirs. It is contended that the vendor can give a good marketable title to the property.

A title need not in fact be had in order to make it unmarketable. The question is whether a reasonably prudent man, familiar with the facts and apprised of the question of law involved, would accept the title in the ordinary course of business; nor is it enough, even, that the court on the whole consider it good. If there be doubt or uncertainty sufficient to form the basis of litigation, the title is unmarketable.

In an action to recover back purchase money for the failure of the vendor to comply with an agreement to furnish a marketable title, where the parties whose possible claims may affect the title are not before the court, the question of law upon which the title turns will not be determined, but the title will be deemed unmarketable if the question is one upon which it is apparent that other courts might entertain a different opinion.

Allen v. Pockwitz, 103 Cal. 85, 36 Pac. 1039, 42 A. S. R. 99. In this case the contract of sale provided that the title should be accepted or rejected by the vendee's attorney. It was contended that if the title was in fact good and marketable the vendee should be compelled to accept the land regardless of the opinion as to the title by the vendee's attorney. Held that the fact as to whether the title was in fact marketable is not to be considered, that the vendee had a right to act upon the opinion of his attorney as to whether the title was marketable.

Close v. Stuyvesant, 132 111., 607, 24 N. E. 868, 3 L. R. A. 161. It was claimed in this case that the vendor had obtained his interest in the land in controversy through defrauding the United States government under the pre-emption and homestead law. The lands were entered under this law by several men who had previous to receiving their certificates from the local land office, arranged with the vendor to transfer said lands to him. This is prohibited by said laws and was null and void. Held that vendor could not give a good and marketable title. It is not necessary that the defendant in an action for specific performance prove actual fraud on the part of the vendor in securing his title, it is sufficient to prove that the vendor could not give a title free from reasonable doubt, and could only give such title as may be the subject of future litigation.

Smith v. Hunter, 241 11l. 514, 89 N. E. 686, 132 A. S. R. 231. In specific performance the abstract of title must be held not to show good merchantable title, where It shows a decree reforming a deed less than three years before the time fixed for consummating the sale but fails to show that the court acquired jurisdiction of a necessary party to the proceeding in such manner as to bar his right to come in, under Sec. 19 of the Chancery act, and petition to open the decree and defend the suit to reform the deed.

Where the vendor in a contract for the sale of land has agreed to furnish an abstract of title showing good merchantable title in him, all the vendee need to do to defeat a bill by the vendor for specific performance is to show that the title which the vendor was prepared to convey was doubtful in character.

Attebery v. Blair, 244 111. 363, 91 N. E. 475, 135 A. S. R. 231. Purchaser contracted for a good title, free and clear from encumbrances and that such title shall be shown by the abstract of title. It is contended by the purchaser that the vendor cannot give a good title as the abstract does not show that certain mortgages made seventy years ago were released of racord; that certain mortgages and deeds do not show on the record as to whether the grantors were married or not; that the abstract does not show whether the deeds and mortgages were acknowledged, etc. It is not implied that an abstract should show matters not of record, nor all the facts and circumstances connected with the conveyances which might affect the title. An abstract of title should contain a summary of all grants, conveyances, wills, and all records of judicial proceedings whereby the title is in any way affected, and all encumbrances and liens of record, showing whether they have been released or not, and should show all such facts or record as may impair the title.

An obligation to furnish an abstract of title showing a good title, free and clear from encumbrances is fulfilled if the abstract furnished, in connection with the rules of law applicable to the conveyances and with evidence of facts and circumstances explanatory of the records, shows such a title.

Imperfections in abstract of title may be cured by affidavits. Imperfections in an abstract of title, such as a failure to show who were the heirs of a party, whether a grantor was married or single, whether the name of a grantee was misspelled and what persons were intended where initials were given, may be cured by affidavits showing the facts.

Meyer v. Madreperla, 68 N. J. L. 258, 53 Atl. 477, 96 A. S. R. 536. This was an action by the vendee to recover back money paid on the purchase price as provided in a land contract, on the ground that the vendor cannot give a good marketable title. It is claimed that in the chain of title a party by the name of Patrick McDermott if alive would have an interest, although very small, in the property. It is claimed on the other hand that as this party has been away from home for more than seven years and has not been heard from during that period that under the law a presumption of death exists, and therefore the interest that Mr. Mc-Dermott would have in the prop erty if alive, is because of such presumption only a possibility and not a probability. In order to defeat the performance of a land contract because of defect in the title it is necessary to show a moral certainty that the party entitled to the interest may appear and claim the interest. For it is impossible in the nature of things that a title can be shown to be good beyond a mathematical certainty. The court must govern itself by a moral certainty and not by a methematical certainty. It is held that the possible future claim which Mr. Mc-Dermott may have if he should appear is not sufficient to defeat the contract of sale.