Johnson v. Fuller

Action to clear a cloud on title to real estate cast-by a recorded contract to convey. The price was $600; $30 paid at the execution of the contract, the remainder to be paid on the delivery of the deed. There were these clauses in the contract: “A reasonable time, not exceeding thirty days, is to be allowed for examination of title; and the form of conveyance is to be warranty deed. In case the title shall be ascertained to be unmarketable to such an extent as to warrant the purchaser in refusing the same, and he shall so refuse the same upon that ground, the vendor shall not be liable to any damage, and the said sum of $30, paid by the purchaser, shall be returned to him.”

The defendant, the vendee, deeming the title unmarketable, refused to accept a conveyance, and also refused to receive back the $30; and he now claims that the contract still remains in force, so that he can compel a conveyance. There could be no damages recovered, for the contract expressly excludes that; and a conveyance is just what he refused to take. His claim is, in effect, that he could refuse to accept a conveyance, and at any time afterwards compel the vendor to make one. The contract certainly did not contemplate any such thing. What it clearly intended was that if, at the end of the thirty days, the title should be unmarketable, the ven-dee might do either of two things: First, perform the contract, and *271take a conveyance, relying on the covenants in it as security against any defects in the title; or, second, refuse to perform, and receive back the money paid on it, — in effect, to rescind the contract. His choice to do one or the other of these would fix the rights of the parties from that time on. Having refused to perform, the vendee’s only right was to receive back the $30.

Order affirmed.