A person who in good faith, bids upon real property at a judicial sale where the particular interest offered is not expressly offered, has a right to assume that he is to receive a conveyance of the fee, and that the title to such real property is marketable. In case the title to such real property is not marketable such fact is a defense to a motion to compel the purchaser to complete his purchase or to any other proceeding or action based upon such bid.

The following New York cases are cited because of their bearing on the question of marketable title:

In the case of Fleming v. Burn-ham, 100 N. Y. 1, 10, the court said, "A title open to reasonable doubt is not a marketable title. The court cannot make it such by passing upon an objection depending on a disputed question of fact or a doubtful question of law, in the absence of the party in whom the outstanding right was vested. He would not be bound by the adjudication and could raise the same question in a new proceeding. The cloud upon the purchaser's title would remain although the court undertook to decide the fact or the law, whatever moral weight the decision might have. It would especially be unjust to compel a purchaser to take a title, the validity of which depended upon a question of fact where the facts presented upon the application might be changed upon a new inquiry or are open to opposing inferences. There must doubtless be a real question and a real doubt. But this situation existing the purchaser should be discharged."

In Heller v. Cohen, 154 N. Y. 299, 306, the court in stating the rules applicable to an action for specific performance say: "To entitle a vendor to specific performance he must be able to tender a marketable title. A purchaser ought not to be compelled to take property, the possession of which he may be obliged to defend by litigation. He should have a title that will enable him to hold his land free from probable claim by another and one that, if he wishes to sell, would be reasonably free from any doubt which would interfere with its market value. If it may be fairly questioned, specific performance will be refused." (Vought v. Williams, 120 N. Y. 253, 257; Shriver v. Shriver, 86 N. Y. 575, 584; Fleming v. Burnham, 100 N. Y. 1.)

"So, where there is a defect in the record title which can be supplied only by resort to parol evidence and the title may depend upon questions of fact, the general rule is that the purchaser will not be required to perform his contract." (Irving v. Campbell, 121 N. Y. 353, Holly v. Hirsch, 135 N. Y. 590, 598.)

Sandum v. Johnson, 122 Minn. 368, 142 N. W. 878, 48 L. R. A. (N. S.) 619. The existence of a rural highway, extending across land conveyed by warranty deed of the form in common use, does not constitute a breach of the covenants usually contained in such deeds.

The following cases hold that the existence of a highway over a piece of land in a rural section is such an encumbrance on the land as to cause a breach of the covenants of warranty in a deed:

Kellogg v. Ingersoll, 2 Mass. 96; Hubbard v. Norton, 10 Conn. 422; Ailing v. Burlock, 46 Conn. 504; Herriclc v. Moore, 19 Me. 313; Haynes v. Young, 36 Me. 557; Lamb v. Danforth, 59 Me. 322; Butler v. Gale, 27 Vt. 739; Pritchar v. Atkinson, 3 N. H. 335; Haynes v. Stevens, 11 N. H. 28; Burk v. Hill, 4S Ind. 52; Beach v. Miller, 51 111. 206; Kellogg v. Malin, 50 Mo. 496; Copeland v. McAdory, 100 Ala. 553.

The following cases hold that the existence of such a highway over the land is not such an encumbrance as to cause a breach of the covenant of warranty:

Memmert v. McKeen, 112 Pa. St. 315; Patterson v. Arthurs, 9 Watts (Pa.) 152; Howell v. Northampton, 211 Pa. St. 284; Whitbeck v. Cook, 15 John. (N. Y.) 482; Huyck v. Andrews, 113 N. Y. 81; Hymes v. Estey, 116 N. Y. 501; 133 N. Y. 342, 344; Smith v. Hughes, 50 Wis. 620, 627; Kutz v. McKune, 22 Wis. 628; Pomeroy v. Chicago, 25 Wis. 641; Pick v. Rubicon, 27 Wis. 433, 442; Mead v. Hein, 28 Wis. 533, 537; Sabine v. Johnson, 35 Wis. 185, 201; Burbach v. Schweinler, 56 Wis. 386, 390; Milwaukee v. Strange, 63 Wis. 178, 183; McLennon v. Prentice, 85 Wis. 427, 434; Jordon v. Eve, 31 Gratt. (Va.) 1; Deacons v. Doyle, 75 Va. 258; Trice v. Kayton, 84 Va.

217; Patton v. Quarrier, 18 W. Va 447; Barre v. Fleming, 29 W. Va. 314; James v. Jenkins, 34 Md. 1; Desvergers v. Willis, 56 Ga. 515 • Newmyer v. Roush, 21 Idaho 106; Schurger v. Moorman, 20 Idaho 97; Harrison v. Des Moines, 91 Iowa 114; Stuhr v. Butterfield, 151 Iowa 736; Killen v. Funk, 83 Neb. 622.

The taking of a city lot for a highway differs from the taking of rural land in regard to the question of whether such taking is an encumbrance on the land as to cause a breach of the covenant of warranty. Smith v. Mellon, 116 Minn. 198.

Stuhr v. Butterfield, 151 Iowa 736, 130 N. W. 897, 36 L. R. A. (N. S.) 321. The fact that the board of supervisors had ordered the construction of a drainage ditch is held not to constitute the breach of a covenant against encumbrances in a deed to the land thereafter given.

This case distinguishes between highways and drainage canals on the one hand and railways on the other. A highway and drainage canals are a direct benefit to the land over which they flow and are essential to the complete enjoyment of the land, and therefore are not considered an encumbrance on the land. A railroad, on the other hand, is not of especial benefit to the land over which it runs, but is only of general benefit to the whole community. Therefore such a right of way for a railroad would be an encumbrance as would be a breach of a covenant of warranty in a deed.

Blanck v. Sadlier, 153 N. Y. 551, 47 N. E. 920, 40 L. R. A. 666. This was a case where property was purchased at a public sale, subject to a mortgage, which by the terms of the mortgage was to be paid in gold. At the time of the purchase this provision was not known by the purchaser. The purchaser sued for the recovery of the purchase money that he had paid down, on the ground that the clause in the mortgage making the same payable in gold was am impediment on the title.

The court held that the absence in the contract of sale of the medium in which said mortgage was to be paid did not imply a contract to pay in any currency that was legal tender. Therefore such clause in the mortgage did not constitute a breach of the contract by being a defect in the title.

A strong dissenting opinion in this case was rendered which held that the absence of any provision in a contract as to the medium in which the purchase price of land or a mortgage is to be paid implied a contract that the same was to be paid in general legal tender currency. Therefore the vendor is not able to comply with the terms of the contract and the vendee should be allowed to recover.

Justice v. Button, et al., 89 Neb. 367, 131 N. W. 736, 38 L. R. A. (N. S.) 1. A trust deed placed upon the property to secure a debt constitutes a defect in the title, notwithstanding the fact that the statute of limitations have run, and that the land has been held by adverse possession for the length of time as provided by law. As against the title itself this would be sufficient to remove the defect, but the courts are more tender in applying the law of adverse possessions as against trust deeds and mortgages given to secure debts.

A good title is one that can be sold to a reasonably prudent man who might desire the property, or a title that can be mortgaged to a person of reasonable prudence as security for the loan of money.

Baldwin v. Trimble, 85 Md. 396, 37 Atl. 176, 36 L. R. A. 489. While an encroachment on a public highway is a public nuisance which can never grow by prescription into a private right, yet there are cases where, when the use of a highway has been totally abandoned by the public and private rights have grown up in consequence of such abandonment, an equitable estoppel is created against the public to assert a right to the use of the highway, and is not an impediment on the title.

Where a deed has been given to secure the payment of certain promissory notes, and since the right to foreclose a mortgage is barred by the lapse of twenty years and since there has been no recognition of the deed as a subsisting lien, the existence of such a deed is not a cloud on the title of parties to whom the land was subsequently conveyed by the same grantor.

Gregory v. Knight, 50 Mich. 61. Long practical acquiescense as between the public and a private owner as to the true line of the lat-ter's fence along the highway will bind the public.

Brewer v. Herbert, 30 Md. 301, 96 Am. Dec. 582. Where a contract is made for the sale of house and lot, and before the contract has been performed the house was accidentally burned down, this does not create any defect in the title, and the same is no defense to an action on the part of the vendor for specific performance. The vendor is the trustee of the vendee for the property and the vendee is the trustee of the vendor for the balance of the purchase money. The vendee has an insurable interest in the property and it is his fault if he has not the same protected by an insurance.