Opinion by

Has the plaintiff a marketable title to the land described in the contract on which his suit is based ? If he has he is entitled to recover the balance of the purchase money due on the contract, and if he has not, the judgment entered by the court below in favor of the defendant for the amount paid upon it must be sustained. While the action is in assumpsit for the purchase money a recovery in it would have the effect of a decree for specific performance, and for this reason the law, as well as the agreement of the parties, requires that it shall be decided on the equitable principles which would govern a chancellor on a bill filed for such a decree: Nicol v. Carr, 35 Pa. 381. A doubtful title or a title which exposes the holder of it to litigation is not marketable, and the rule in equity is that a purchaser will not be compelled to accept it. The rule on this subject is well stated by Paxson, J., in Mitchell v. Steinmetz, 97 Pa. 251: “ A decree for specific performance is of grace, not of right. It will never be made in favor of a vendor unless he is able to offer a title marketable beyond a reasonable doubt, nor against a vendee where he is able to show any circumstances which would make it unconscionable to do so.” This statement of the rule is well supported by the decisions of this court in numerous cases, among which we may mention: Nicol v. Carr, supra; Swain et al v. Fidelity Ins. Co., 54 Pa. 455; Doebler’s App., 64 Pa. 9; Swayne v. Lyon, 67 Pa. 436.

The land in dispute is part of the lands of which Andrew Fulton died seized, and which were disposed of by his will. Respecting his title to the land, or the construction of his will, there is no contention here. It appears to be conceded that under his will and by virtue of its provisions there are persons now living, and others yet unborn, who have contingent interests in the land, which, if not barred or divested by the parti*540tion proceedings hereinafter considered render the plaintiff’s title unmarketable. The learned judge of the court below in a well considered and lucid opinion, referred to and designated these interests, and as the accuracy of his conclusions respecting them is not questioned, we pass directly to the consideration of the effect of the partition, which by common consent appears to be the pivotal point in the case. Were these interests barred, divested or extinguished by the partition proceedings under which it is claimed that Thomas C. Pulton, Jr., to whose rights the plaintiff has succeeded, acquired a marketable title? The learned judge of the court below after careful consideration of various matters affecting the question concluded that they were not, and he therefore entered a judgment in favor of the defendant. The matters so considered by him related to the right of Thomas C. Fulton, Jr., on whose bill the proceedings were instituted, to demand partition of the land in question ; to what appeared to him as noncompliance with the law as to parties unborn who might become interested in the estate, and as to the representation in the proceedings of minors who were then interested in it. We cannot profitably add anything to what he has said respecting them and other matters affecting the plaintiff’s title and authorizing the judgment appealed from. We have duly considered them in connection with our statutes and decisions relating to partition, and our conclusion is that the plaintiff has not a marketable title. The questions arising upon the case stated are important and not free from difficulty. They raise such doubts respecting the title as ought to induce a prudent man to hesitaté in accepting it. As was said in Nicol v. Carr, supra, we do not enter into them, nor indicate any opinion how they ought to be decided, but we hold it as a very clear conviction that the defendant ought not to be compelled to pay for a title burdened by them.

Judgment affirmed.