Stange v. Gosse

Grant, J. (after stating the facts). The objection made by the defendant to the recovery for the commission is that neither a complete sale nor an enforceable contract was made, and that the contract was made nonenforceable by the insertion of the clause as to an abstract showing a perfect title, and in this respect differed from the [155] sale which. Cohn was authorized by his option to effect. The theory of the plaintiff is that, in every land,contract where the contrary intent is not expressed, an agreement is implied to give a good title, clear of all defects and incumbrances ; that he had fully complied with his option in securing a purchaser; that the failure to comply with the contract of sale was the fault of the defendant; and that he had earned his commission when he had brought a purchaser and the contract was executed. The abstract produced did not show a good, marketable title in the defendant. Titles to land usually appear of record. Parties rely upon the record or upon abstracts thereof in making purchases. In every land contract the vendor impliedly agrees to convey a good, marketable title. This should appear by titles of record or title deeds unrecorded, or by due proof of heirship where title is thus obtained. A vendee does not agree to buy lawsuits, nor to rely upon adverse possession in the vendor. The abstract showed an undivided one-seventh interest in this land outstanding, and the parol testimony showed that the title to this was in John Gosse, the son of Francis Gosse. The record in this case does not conclusively show that John Gosse was dead, or that he never married. Defendant first testified that he did not know whether his uncle John was ever married, and that he had heard that he was dead. He afterwards testified that he was not married. Plaintiff was not required to accept a deed from the defendant under such defect in the title. Whether the defendant would, in any event, be required to show a good title by the record in the office of the register of deeds, we need not determine. It was reasonable that he should contract to do so. Parties do not usually buy without proof of such record title. Defendant has made no case which would be a defense even if the contract did not provide that the abstract should show a perfect title. He dealt with Mr. Cohn upon the assumption that he had a good title. ' The failure was not the fault of Mr. Cohn or of plaintiff. We therefore think that the defendant [156] was not in position to defend against his contract for commission by this provision of the contract to sell. Under the record as it now stands, the plaintiff was entitled to judgment for the commission, as well as for the part of the purchase price paid. Judgment reversed, and new trial ordered. The other Justices concurred.