Kent v. Allen

Scott, Judge, delivered tbe opinion o£ tbe court. It is not easy to ascertain tbe precise point on wbicb this cause turned in tbe court below. 1. As to tbe representations alleged to have been made by Allen, we are of opinion that in this case it is a matter of no importance whether they were express or implied; for if tbe owner of land sends a broker into market to dispose of it without any directions as to the title to be conveyed, he thereby gives an assurance to the world, by implication at least, that he has a valid title to that land both in law and equity. 2. The doctrine of marketable titles is purely equitable. Courts of law being the proper and peculiar tribunals for the decision of all legal questions, doubtful titles are not recognized by them. In the case of Romily v. James, (6 Taunt. 274,) the law on this subject is thus stated: “It is said the plaintiff will have made out his claim to recover back his deposit if a cloud is cast upon the title. That is not so in a court of law; he must stand by the judgment of the court as they find the title to be, whether good or bad ; and if it be good in the judgment of a court of law, he can not recover back his deposit. If he had gone into a court of equity, it might have been otherwise. I know a court of equity often says, this is a title which, though we think it available, is not one which we will compel an involuntary purchaser to take ; but that dis - tinction is not known in a court of law.” There is some contrariety of opinion on this subject, but the law seems to be settled as above stated. (Bogman v. Gutch, 7 Bingh. 379; Atkinson on Titles, p. 8, 9.) This being a suit at law, and the validity of the title arising, the question must be determined whether it is good or bad. We can not object to the title of the respondent that it is doubtful or unmarketable. The finding of the court in relation to the validity of the deed tendered to Meier is not satisfactory ; it does not clearly appear whether the court was of the opinion that the deed was valid to convey a good title. We know it may be said that, [107] whether it was effectual to convey title, is a question of law arising from the face of the facts found. This may be so. But we are not prepared to say that, from the finding, the deed tendered Meier was not effectual to pass the title. If the conveyance made in 1843 by Wm. Russell to Thos. Allen was in satisfaction of the 4th article of the marriage, it may be doubted whether the deed tendered was effectual. This fact is not found either way. Parol evidence may be admissible in determining it. An assertion made by the counsel of Allen, not appearing on the record, might have considerable influence in settling the question. The fact asserted was that the land con- . veyed by the deed of 1843, to Mrs. Allen, so far from yielding any rents or profits, was a burden and a source of expense, being unimproved. Without pretending to express any opinion as to the validity of the deed tendered to Meier, we will remand the cause, so that all the facts necessary to determine the validity of that deed may be investigated. Judge Ryland concurring, the judgment will be'reversed, and the cause remanded.