In denying WMATA's Motion for Summary Judgment, the Court has determined that the footing is neither an easement nor a claim of easement that would bring it within General Exception 3. While an encumbrance has been defined as "every right to, or interest in the land granted, to the diminution of the value of the land, but consistent with the passing of the fee of it by the conveyance," Miller v. Schwinn, Inc., 113 F.2d 748, 751 (D.C. Cir. 1940); Sterling v. Blackwelder, 302 F. Supp. 1125, 1129 (E.D.Va. 1968), this definition is by no means all-inclusive. It has long been established that an encroachment may encumber title or render title unmarketable, particularly if the encroachment is substantial or interferes with the free development of the subject parcel. See Mid-State Homes, Inc. v. Brown, 47 Ala. App. 468, 256 So.2d 894, 897-99 (1972) (encroachment in the form of a fence rendered title unmarketable); Pasternack v. Alter, 123 A. 885, 885-86 (N.J.Ch. 1924) (encroachment of two inches of building on adjoining property rendered title unmarketable and "might well involve a suit in ejectment"); Glyn v. Title Guar. Trust Co., 132 A.D. 859, 117 N.Y.S. 424, 427-28 (1909) (encroachment of a stoop, pilaster, and door cap some nine inches onto plaintiff's property held to be an encumbrance within the coverage of plaintiff's title insurance policy); Kaplan v. Bergmann, 122 A.D. 876, 107 N.Y.S. 423, 424 (1907) (encroachment of u
Smith v. White, 71 W. Va. 639, 78 S.E. 378, 48 L.R.A. (N.S.) 623. Miller v. Schwinn, 72 App.D.C. 282, 113 F.2d 748 (D.C. Cir.), dealt with the question of whether a sewer easement constituted an encumbrance, and constituted a violation of a covenant in contract to convey free of encumbrances. At page 751 (113 F.2d 751) the Court said:
A party to a contract does not repudiate its obligations under that contract by refusing to do that which the contract forbids it from doing. Cf. Miller v. Schwinn, 113 F.2d 748, 750 (D.C. Cir. 1940). And third, if it is determined that Standard Fire was bound to provide building coverage under the contract, it must be determined whether its refusal to perform that obligation was unequivocal and went to the "very essence of the contract."
In most cases — perhaps all but a relatively few — a promisor's tender in good faith of a performance fully in compliance with the contract save for minor and unimportant deviations avoids a breach enabling the promise to escape his obligations thereunder. Merando v. Mathy, 80 U.S.App.D.C. 281, 282, 152 F.2d 21, 22 (1945), cert. denied, 327 U.S. 804, 66 S.Ct. 966, 90 L.Ed. 1029 (1946); Friedman v. Decatur Corp., 77 U.S.App.D.C. 326, 328, 135 F.2d 812, 814 (1943); Miller v. Schwinn, Inc., 72 App.D.C. 282, 284, 113 F.2d 748, 753 (1940); Burke v. Thomas J. Fisher Co., 127 F.Supp. 1, 3 (D.D.C.), aff'd, 95 U.S.App.D.C. 85, 219 F.2d 767 (1955); Minmar Builders, Inc. v. Beltway Excavators, Inc., 246 A.2d 784, 787-788 (D.C.App. 1968); Royal McBee Corp. v. Bryant, 217 A.2d 603, 607 (D.C.App. 1966). Turner v. Henning, 49 App.D.C. 183. 184, 262 F. 637, 638 (1920).
3 Williston, Contracts (Rev. Ed. 1936) § 676; Restatement, Contracts (1932) §§ 294, 306. Miller v. Schwinn, 72 App.D.C. 282, 284, 113 F.2d 748, 750; Roehm v. Horst, 178 U.S. 1, 13, 20 S.Ct. 780, 44 L.Ed. 953; Landvoigt v. Paul, 27 App.D.C. 423, 432; Sheffield v. Paul T. Stone, Inc., 68 App.D.C. 378, 98 F.2d 250. The record in the present case shows that there was such an anticipatory breach.
This resulted in a judgment for Schwinn, which was affirmed by this court. Miller v. Schwinn, Inc., 72 App.D.C. 282, 113 F.2d 748. The present action was begun by Bradley against Miller to recover the commission it would have received from Schwinn had the contract been performed.
In Gaspar v. United Milk Producers of California (1944), 62 Cal.App.2d 546, 144 P.2d 867, the employer put it out of his power to perform the contract by selling his property. And see Miller v. Schwinn, Inc., 72 App.D.C. 282, 284, 113 F.2d 748, 780; irrevocable dedication of land to Sanitary Commission terminates prior agreement to convey. Thus, in each case cited the defendant was powerless to perform his contractual obligation.
". . . . "6. Facts showing that even if the condition were performed the promise would not have been kept; and that for this reason only the condition had not been performed, Miller v. Schwinn, 113 F.2d 748 (CA DC) the court held that no action could be maintained for breach of a condition to convey certain properties free from encumbrances when it could be affirmatively shown that the promisor would not have performed even if the condition had been satisfied; . . ." It follows, as the trial court held, that, once the closing date set in the commitment agreement had been passed, the respondent was excused from performance and entitled to rescind.
Knowledge of the existence of an outstanding encumbrance may be the very reason for insisting on a covenant against it. Bossieux v. Shapiro, 154 Va. 255, 261, 153 S.E. 667, 668; Scott v. Albemarle Horse Show, 128 Va. 517, 537, 104 S.E. 842, 848; Olcott v. Southworth, 115 Vt. 421, 63 A.2d 189; Miller v. Schwinn, 113 F.2d 748; Thackston v. Farm Bureau Lbr. Corp., 212 Ark. 47, 204 S.W.2d 897; Browne v. Taylor, 115 Tenn. 1, 88 S.W. 933, 112 Am. St. Rep. 811, 4 L.R.A. (N.S.) 309, and Anno. at p. 310; Lavey v. Graessle, 245 Mich. 681, 224 N.W. 436, 64 A.L.R. 1477, and Anno. at p. 1479; 21 C.J.S., Covenants, sec. 39, p. 909; 14 Am. Jur., Covenants, etc., sec. 100, p. 547. Moreover, parol evidence was not admissible to prove that the deed, which on its face conveyed the timber, was not intended to convey it; or that this encumbrance was intended to be excepted from the general terms of the covenants in the deed.
A recorded instrument is constructive notice only to those who are bound to search for it. Miller v. Schwinn, Inc., 113 F.2d 748, 753 (D.C.Cir. 1940); Mountain States Telephone and Telegraph Company v. Kelton, 79 Ariz. 126, 285 P.2d 168, 170 (1955); Texas-New Mexico Pipe Co. v. Allstate Construction, 70 N.M. 15, 369 P.2d 401, 403 (1962); Argonaut Southwest Insurance Company v. Maupin, 485 S.W.2d 291, 296 (Tex. Civ. App. 1972), rev'd on other grounds, 500 S.W.2d 633 (Tex. 1973); Duitman v. Liebelt, 17 Wis.2d 543, 117 N.W.2d 672, 674 (1962); Perkins v. Perkins, 173 Wis. 421, 180 N.W. 334, 337 (1920); 66 Am.Jur.2d Records and Recording Laws § 103, p. 403; 66 C.J.S. Notice § 13c, p. 650. In Palmer v. Welch, 171 Mo.App. 580, 154 S.W. 433, 439 (1913), the court said, "Although one's title to real property is of record, nevertheless an estoppel will arise against him, if by representations he has misled another with respect thereto, whereby the latter has been induced to act to his injury."