Opinion
May, 1905.
Judgment affirmed, with costs. All concurred, except Stover, J., who dissented in a memorandum. —
I dissent from the decision in this case. The contract, as set forth in the complaint, and as found by the referee, provided that the defendants were to furnish "A full and complete tax search and abstract of the title of and to said premises, made by the `Buffalo Abstract Company,' showing said premises vested in the said defendants, as aforesaid, by a good and marketable title; and that in case it appears from an examination of said abstract of title and the records therein referred to that the title to the said premises was in any manner defective or unmarketable, that then and in that event the said defendants would, on or before said 1st day of July, 1903, cure all such defects and make the said title in all respects a good and marketable title." I think the fair construction of this agreement is that the plaintiff was entitled to a clear record title, and that the conditions of the contract are not fulfilled by showing outside of the record a title which might be marketable; and that so far as the clause required a curing of the defects in the record title, it referred to such defects as could be cured of record, and did not contemplate establishing a title outside of the record. The judgment in this action even is not a complete record title, for it binds no one but the parties to this action and still leaves the title to rest in part in parol. I think the plaintiff was entitled to a marketable record title, and that the title tendered does not comply with the terms of the contract.