Cummings v. Dolan, 52 Wash. 496, 100 Pac. 989, 132 A. S. R. 986. The abstract showed that two mortgages existed against the title, which were an apparent cloud upon the same. The vendee refused to accept the land because of this cloud. The holder of the mortgages gave the vendor quit-claim deed to the same which would bar any future claim to the property under the mortgages. Affidavits were also given for the purpose of showing that the mortgages were not originally intended to cover the property sold under the contract, but through a clerical error the mortgages apparently covered the property. The fact was that the mortgages were not intended to be a cloud upon the chain of title to the land covered by the contract. Held that the vendor could give a marketable title. A contract for a marketable title only calls for one that is rea sonably free from doubt.

Simon, et al. v. Vanderveer, 155 N. Y. 377, 49 N. E. 1043, 63 A. S. R. 683. This was an action to recover the price paid on a land contract on the ground that the vendor cannot give a marketable title. A lis pendens had been filed against the property sold. It was held that although the action upon which the lis pendens was filed would not have been a lien upon the property, the contract upon which such action was based was not produced by the vendor, and that it was not incumbent upon the vendee to search the records to satisfy himself as to the nature of the action. He had a right to rely upon the lis pendens.

Evans v. Taylor, 177 Pa. St. 286, 35 Atl. 635, 69 L. R. A. 790. In this action the plaintiff had agreed to give the defendant a good title to real estate free and clear from encumbrances. Through this land a street had been laid by the city plan. The purchaser is supposed to be informed of any streets actually existing over the lands or of any plans on record for the future opening of any and therefore cannot defend in an action for the purchase price where he has accepted a deed or done any act in confirmation of the contract. But as the contract in this case was executory and the purchaser had done nothing in confirmation of the same, the knowledge which he presumed to have as to street plans over the property, is not sufficient to permit the plaintiff to recover the purchase money where he has contracted to give a title free and clear of all encumbrances.

Kares v. Covell, 180 Mass. 206. The vendor had given a bond to convey property free and clear of all encumbrances. After this bond was made about a fourth of the property conveyed was taken by the City of New Bedford for the widening of a street. It was claimed on the part of the vendor that as the taking of the property occurred after the giving of the bond that his inability to transfer the whole of the land is not a breach of the bond. Held that the agreement of the bond was to convey a title free and clear of all encumbrances at the time of performance, and his inability to do so is a breach of the covenant.

Downey v. Seib, 185 N. Y. 427, 78 N. E. 66, 113 A. S. R. 926, 8 L. R. A. (N. S.) 49. An action was brought by the vendor to reform a deed of the real estate which is the subject of the land contract, by which deed the said property was conveyed by the vendor's father to her. The father intended to give the daughter an absolute fee simple title to the property, but by mistake of the scrivener a life estate only was given with a remainder. The vendor made her mother, brothers and the executor of a will parties defendant. There was no contest and judgment reforming the deed as prayed was entered. There was no party to this action representing issue unborn, and therefore any future issue of the vendor would not be cut off by the action to reform the deed from claiming in the future their rights to the property.

Held that the vendor could not convey a marketable title to the real estate.

Cross v. Buskirk-Rutledge Lumber Co., 139 Tenn. 79, 201 S. W. 141. A will gave the wife of the testator a life estate in certain real property, and in the same instrument gave the executors of the will a power of sale over the property. The executors sold the property in question to the vendor in the present action. The vendor contracted to give the defendants an apt and proper deed with covenants of general warranty. As the wife or her representative is not a party to this action, this action cannot bind her. So whether the title is good or not the most that the vendor can do is to give the defendant a title subject to future litigation, which would not be a marketable title.

Where the title depends upon the existence of a fact, which is not a matter of record, and the fact depends for its proof entirely upon oral evidence, the case must be very clear by the vendor to warrant the court in ordering specific performance.

Fredman, et al. v. Oppenheim, 187 N. Y. 101, 79 N. E. 841, 116 A. S. R. 595. Title by adverse possession clearly established, although by parol evidence, is a marketable title; and where it appears in an action to compel specific performance of a contract to exchange real estate that the plaintiffs have a record title, perfect except as to two defects, which were not considered on the appeal as they were not in the record, that they and their predecessors have had possession thereunder for a period of thirty-eight years, and that during that entire period no person has made any claim of ownerhsip to the premises, other than those from whom the plaintiffs derived their title, a decree based upon a conclusion of law, that the plaintiffs have a good and indefeasable title to the premises by adverse possession, is properly granted.

Wanser v. DeNyse, et al., 188 N. Y. 378, 80 N. E. 1088, 117 A. S. R. 871. In this case the purchaser bid in the property at a judicial sale, and had paid a part of the purchase price. Afterwards he found, upon examination, and produced affidavits which showed that the record title to said premises was not clear.