In the accompanying note we have collected a large number of cases giving a brief abstract of those decisions from various states wherein the titles have been held to be defective.101

101. Hedderly v. Johnson, 42 Minn. 443, 44 N. W. 1056, 12 A. S. R. 521. In a conveyance of real estate was the folowing clause: "Reserving, however, a strip of land one hundred and fifty feet wide, to be used by the said railroad company for a right-of-way or other railroad purposes where the main line of its road, or any of its branches, as now located and constructed, or hereafter to be constructed is laid or may pass over said land." This easement was claimed to make it reasonable doubtful whether the vendor could give a title free from all encumbrances, and therefore be marketable. The easement depended on the fact of the then location of the line; and as there is, as the case shows, no doubt that no line had then been located, and as the matter appears to be easily and readily proved at any time, the clause does not make the grantee's title unmarketable. If the doubt raised a question of law, it must be a fairly debatable one, one upon which the judicial mind would hesitate before deciding it. If the doubt depended on a matter of fact, and there is no doubt as to how the fact is, and if it may be readily and easily shown at any time, it does not make the title unmarketable.

Townshend v. Goodflelow, 40 Minn. 312, 41 N. W. 1056, 12 A. S. R. 736, 3 L. R. A. 739. The vendor in this case was a subpurchaser. The executors of an estate had sold certain lands to a party by the name of Mesick on an executory contract of sale, who in turn made out an executory contract of sale to the vendor under the contract in issue in this case. It is claimed that under the will the executors had no power to enter into the contract with Mesick. If this is true the vendor cannot transfer to the defendant a title free from reasonable doubt and can only transfer one which might be subject to litigation later. Held that the vendee is entitled to a title free from any reasonable chances as to future litigation, that under the circumstances of this case the plaintiff is unable to give such a title and therefore the title is unmarketable. Howe v. Coates, et al., 97 Minn. 385, 107 N. W. 397, 114 A. S. R. 723, 4 L. R. A. (N. S.) 1170. The contract in this case provided that the vendor should furnish the vendee with an abstract within a certain time showing a good title in the vendor. The abstract furnished showed that a previous lease and also a contract of sale against the property, but did not show that said lease and contract had ever been withdrawn. It was contended that the title was clear in fact and that affidavits could be produced as proof showing that said lease and contract had been withdrawn and that they were no longer an encumbrance to the title. Held that the vendor could not give a marketable title, as the contract provided for an abstract showing a marketable title, and this not being furnished, proof of a marketable title in fact 1b not sufficient. The contract was construed and held to call for a marketable record title.

Howe v. Coates, et al., supra. A title open to reasonable doubts is not marketable, and the court can not make it so by passing upon an objection depending upon a disputed question of fact, or a doubtful question of law, in the absence of the party in whom the outstanding right or claim is vested.

Howe v. Coates, et al., supra. A title to real estate is not marketable when so defective as to effect the value of the land or interfere with its sale.

Moore v. Williams, 115 N. Y. 586. 22 N. E. 233, 12 A. S. R. 844, 5 L. R. A. 654. The vendee in this case refused to perform his part of the contract and accept a deed because of a judgment that had been rendered against the vendor and apparently was a lien against the property which the vendor contracted to sell to the vendee. It is claimed on behalf of the vendor that although he held said land in his own name, it was in reality the property of a firm and that it had been deeded to him in trust for the purpose of sale, and that as a result the judgment against the vendor cannot be a lien on the land. Held that the vendor could not give such a title as the vendee was entitled to. He could not give a marketable title.

Vought v. Williams, 120 N. Y. 253, 24 N. E. 195. 17 A. S. R. 634, 8 L. R. A. 591. In this case there was an outstanding right in the land contracted to be sold by one who had left home 24 years before, being at the time 23 years of age, unmarried and in feeble health, and very dissipated, and who was seen shortly after in destitute circumstances, and never heard from again, and it further appears that no opposing title has ripened by adverse possession. The vendee claims that these facts place a reasonable doubt upon the title and therefore the vendor cannot give a marketable title. Vendor contends that the failure to hear from the one claimed to have an outstanding right in the land for a period of 24 years raises a presumption of death and therefore removes any doubt upon the title. It has previously been held in this court that where the owner of the outstanding title has not been heard from for a period of 40 years that the presumtion of death exists, Ferry v. Sampson, 112 N. Y. 415, 20 N. E. 387. But under a contract for a first-class title, the absence of the owner of an outstanding interest for a period of 23 years and not having been heard from within that time is not sufficient to clear the title from a reasonable doubt so that the vendor can give a marketable title.

Herman v. Somers, 158 Pa. St. 424, 27 Atl. 1050, 38 A. S. R. 851. In a contract for the sale of property, a provision that it shall be free from all liens and encumbrances, and that the hand money shall be refunded if title should not prove good on examination of records, or cannot be made good, is equivalent to a covenant to convey a marketable title. In equity a marketable title is one in which there is no doubt involved, either as law or fact. Every title is doubtful which invites or exposes the party holding it to litigation. If there be color of outstanding title, which may prove substantial, though there is not enough in evidence to enable the chancellor to say so, a purchaser will not be held to take it, and encounter the hazard of litigation.