The court points out here that in a court of equity for the specific performance of this contract that the title might be held to be unmarketable, but as the Court of Law and Court of Equity in New Jersey are separate the law court is not governed by principles of equity. This is different in most states where the two courts are united.

Wesley v. Eells, 177 U. S. 370, 20 S. Ct. 661, 44 U. S. (L. Ed.) 810.

Vendor bought the property which is the subject of this suit from the State of South Carolina. He made a part payment and gave a mortgage to the state for the balance. Later a revenue bond credit slip was given which was contended by the vendor to wipe out the mortgage. The act of the legislature of South Carolina under which this revenue bond credit slip was given was declared unconstitutional by the Supreme Court of South Carolina as being in violation of the Federal Constitution which provides that no state shal emit any Bills of Credit. The vendee contends that under this decision the mortgage has not been wiped out and that the same is still an encumbrance upon the property. Held that this question is one that would have to be settled by a suit against the State of South Carolina, and that the vendor could not give the vendee a title, except one that would be subject to future litigation, and therefore not at all marketable.

Conley v. Finn, 171 Mass. 70, 50 N. E. 460, 68 A. S. R. 399. It was claimed in this case that one of the former owners of the property which was the subject of the controversy in this action gave a deed to this property, that was neither acknowledged or recorded until after the death of the vendor in that transaction. The vendor in this suit claims title through the vendee of this former transfer.

It is presumed that a deed is delivered at the time of its date and it must be acknowledged before delivery. Also the vendor has obtained title by adverse possession. As the contract did not provide for a good title of record, therefore it was held that the vendor could give to the vendee a good title.

Irving v. Campbell, 121 N. Y. 353, 24 N. E. 821, 8 L. R. A. 620. A good title means not only a title valid in fact, but a marketable title that can again be sold to a reasonable purchaser, or mortgaged to a person of reasonable prudence.

A purchaser will not generally be compelled to take a title where there is a defect in the record title which can be cured only by a resort to parol evidence, and there has not been an undisputed adverse possession for a time sufficient to give title thereby.

Buchan v. German American Land Co., 180 Iowa 911, 164 N. W. 119. This was a case where the contingent interest of unborn chil-dred were involved. It was contended that a decree of a court quieting title could not affect the contingent interest of unborn children. On this question the court said: "The contingent interest of unborn children in real estate may be validly cut off by a judgment in a good faith action to quiet title. For instance, if all living children who are interested in the property are brought before the court, and they have identically the same interest which an after-born child would have, then a decree that the living children have no interest is binding on unborn children, on the necessary theory that, in said action, the living children represent the unborn. So held where the issue in an action to quiet title was whether a devisee took a fee simple title or whether he took a life estate with remainder to his surviving children."

"A title which is good as a matter of law is not rendered unmarketable by the possibility that vexatious litigation might be instituted in relation thereto, nor by the fact that attorneys had advised against accepting the land as security for a loan."

Batts v. Mallon, 151 Mass. 477, 25 N. E. 17, 7 L. R. A. 840. Land was conveyed to a trustee for a married woman as sole beneficiary, and to his successors and assigns; he devised it to his wife for life, with remainder to such married woman; and she survived the wife and devised it to her daughters, by whom it was conveyed to a third person. Confirmatory releases were given to such grantee by the grantor of the original trustee, and by a trustee duly appointed for that purpose to succeed the latter; and the trust was then terminated upon due proceedings had. Held, that the grantee could convey a title good beyond a reasonable doubt.

Rife v. Lybarger, 49 Ohio St. 422, 31 N. E. 768, 17 L. R. A. 403. The only cloud upon the title of the land was an uncancelled mortgage made contemporaneously with, and to secure, a series of promissory notes, which notes are all barred by the statute of limitations, and which mortgage, the mortgagee being dead, his estate solvent and finally settled, his widow and heirs-at-law released by a quit claim deed of the premises, made to the vendor for that express purpose. There was no evidence that said notes had been assigned before the quit claim deed was given. Held, that said mortgage is no cloud upon the title, and that the vendor could give a good marketable title.

Simis, et al., v. McElroy, 160 N. Y. 156, 54 N. E. 674, 73 A. S. R. 673. This was an action by the vendor against the vendee in a land contract for damages for failure to perform the same. It is contended on the part of the vendee that the vendor cannot give a good and marketable title to the land. It is admitted that the vendor cannot show a good title in him of record, but claims that he has such title by adverse possession.

It is held that although apparently the vendor has good title by adverse possession, yet as the owners of record are not parties to this action they cannot be precluded in a future action from setting up matters which do not appear in this case that would shut off the claim of the vendor from his right to claim title by adverse possession. Hence the vendee would only be taking a title which may subject him to future litigation over the same. Therefore the vendor cannot give a marketable title.