Genske v. Jensen

There is only one fact in issue, and that is as to whether or not the title of Wyss, as shown by *19the abstract, was merchantable. If the title was merchantable, the respondent is entitled to his commission under his contract with the appellants. If it was not merchantable, respondent is not entitled to a. commission. We are not cited to any case defining “merchantable” as used in a real-estate contract, but it is fair to say that the term was used in the contract in question as meaning a good or marketable title, such as would be conveyed by an ordinary warranty deed. The title that is incumbered by an easement is held not to be a good title. Hensel v. Witt, 134 Wis. 55, 113 N. W. 1093. Covenants, restrictions, and charges affecting the property contracted for, unless removed or released, will constitute an incumbrance entitling the purchaser to refuse to take title. 39 Cyc. 1499; Neff v. Rubin, 161 Wis. 511, 154 N. W. 976, and cases there cited. A purchaser cannot be compelled to accept property subject to building restrictions imposed by covenants in a deed or agreement, unless excepted by the terms of the deed or contract, or released, even though a court of equity would not enforce them because conditions have changed since they were made or because they have become obsolete and inoperative by reason of non-observance. A purchaser may also be justified in refusing to perform because of the existence of a valid building or other restriction imposed by statute or ordinance, or by authorized municipal authorities, or by an existing charge against the property by reason of violation of such a restriction. 39 Cyc. 1500; 27 Ruling Case Law, 508.

There was an attempt made to release the restriction on the Wyss property by obtaining a quitclaim deed from the original grantor, but no release or quitclaim was obtained from other lotowners whose title had been likewise obtained from the common grantor. The right to enforce such a restriction is vested in all the lotowners and the common grantor. 13 Cyc. 718. The restriction can be released only by the assent of all of the grantees of the platted lots for *20whose benefit such restriction was imposed. Hopkins v. Smith, 162 Mass. 444, 38 N. E. 1122; Raynor v. Lyon, 46 Hun, 227.

The appellants were within their rights in refusing to consummate the sale or exchange of property; no sale or exchange was made, and hence no commission was earned by the ag'ent.

By the Court. — The judgment of the circuit court is reversed, with directions to enter judgment in favor of the appellants.