Barnum v. Lockhart

Mr. Justice McBride delivered the opinion of the court. 1. All the objections appearing in the foregoing statement seem to have been obviated and the mortgages mentioned in the opinion of the attorney who examined the abstract satisfied or released, so that but two objections among those then considered and advanced by defendant are now urged here; the first being the defect in the deed from the heirs of Malinda Davis to W. R. Davis in which the closing call was not given, and the second being that a release given by Henry Sengstacken to the $8,750 mortgage mentioned by the attorney in his opinion did not name any consideration. A third objection, which was not raised then or afterward, until this action was commenced, was the existence of the railroad right of way upon the premises. The conveyance from the heirs of Malinda Davis to W. R. Davis is not in law ambiguous. The description begins at a section corner and runs north 20 chains; thence east 20 chains to low-water line of Isthmus Slough; thence in a southerly direction along low-water line to a point due east of the place of beginning; and is said to contain 61 acres. The closing call is omitted, but where the tract is rectangular and three sides and the number of acres are given,- the fourth side is to be found by running a straight line from tñe last call to the place of beginning: Commonwealth v. City of Roxbury, 9 Gray (Mass.), 490; Ray v. Pease, 95 Ga. 153 (22 S. E. 190). A reference to the opinion of Mr. Upton, defendant’s attorney, indicates that he was of this opinion, and it cannot be said that defendant urged this as an objection. 2. The objection that Sengstacken’s release does not show a consideration is untenable. The release is under seal, and this of itself is primary evidence of a [540] consideration. Section 7140, L. O. L., provides that the owner or holder of record may satisfy or release a mortgage. Sengstacken was the owner and holder of record. Section 7138, L. O. L., provides what the certificate of release shall contain, namely, that it shall specify “that such mortgage has been paid or otherwise satisfied or discharged.” This the release made by Sengstacken contains. It would thus appear that the release complies strictly with every statutory requirement, which is sufficient. 3, 4. The third objection goes to the existence of the railway line 'across the tract. There has been much discussion as to whether the defendant has waived his objection to this encumbrance by failing to make timely objection, and whether, if so, his waiver is seasonably pleaded. In our judgment neither of these questions arise in this case, and an easement of this character cannot be said to be within the legal contemplation of the contract. A leading author states the law as follows : “As a general rule, the existence of an open, notorious, and visible physical encumbrance upon the estate, such as a public highway, forms no objection to the title, because it is presumed that the purchaser was to take subject to such encumbrance. Neither does such encumbrance entitle the purchaser to compensation, nor to an abatement of the purchase money, nor to a conveyance with a covenant against the encumbrance, because it is presumed that in fixing the purchase price the existence of the encumbrance was taken into consideration”: Maupin on Marketable Title (2 ed.), 197; Ashburn v. Sewell, L. R. 3 Ch. Div. (1891) 105; Desvergers v. Willis, 56 Ga. 515 (21 Am. Rep. 289); Tise v. Whittaker-Harvey Co., 144 N. C. 507 (57 S. E. 210); Trice v. Kayton, 84 Va. 217 (4 S. E. 377, 10 Am. St. Rep. 836); Jordan v. Eve, 72 Va. (31 Gratt.) 1; Hymes v. Estey, 116 N. Y. 501, (22 N. E. 1087, 15 Am. St. Rep. 421). [541] Nothing can be more public than a railway over a tract of land, and it is inconceivable that defendant could have contemplated that plaintiff would remove it before tendering an abstract, and equally inconceivable that he was ignorant of its existence. Without reference to authority it seems reasonable that where the existence of so palpable a physical easement as a railroad is urged as an objection to the title, the burden of pleading and proof should be upon the purchaser to show that he was in fact ignorant of its existence. The evidence in this case tends to show that the existence of this railway line across the property constituted a great part of its value, and was probably the moving cause which induced defendant to enter into the contract. Defendant’s position in the controversy is inconsistent. He does not seek to rescind the contract, but on the contrary affirms it. He claims that he is ready and willing to perform his part of it upon plaintiff’s furnishing him an abstract showing marketable title, and at the same time presents a defense which, if valid, would render it morally impossible for such an abstract to be furnished. Upon defendant’s theory as to the abstract he had the right: (a) To rescind the contract and demand a return of the money paid; (b) to counterclaim for damages to the extent that the railway over the premises depreciated the value of the land; or (c) by a cross-bill in equity to compel specific performance as to that portion of the land unaffected by the railway easement, and an abatement in the price to be paid equal to the loss suffered by reason of plaintiff’s inability to comply wholly with the contract; but he has not chosen to avail himself of any of these remedies. A verdict in his favor under the pleadings here would leave the contention “in the air” indefinitely. The contention [542] of defendant is that plaintiff’s action has been prematurely brought, and that it should not be held to accrue until an abstract obviating defendant’s objections has been furnished. This is a matter in abatement and should have been pleaded as such: McClung v. McPherson, 47 Or. 73 (81 Pac. 507, 82 Pac. 13); Fiore v. Ladd, 29 Or. 528 (46 Pac. 144). But even treating the answer as a plea in abatement, we hold that the abstract furnished showed a marketable title within the fair legal intent of the contract. The judgment is affirmed. Aeeirmed. Rehearing Denied. Mr. Chiee Justice Moore, Mr. Justice Burnett and Mr. Justice Benson concur.