held to it, and of making bargains for the contracting parties which they never would have made for themselves.

A covenant, valid and enforceable in equity, which limits and restricts the use of a slice of the street front of a lot so as to prevent building thereon, is an encumbrance. The title, therefore, is not free and clear from encumbrance, and the court will so hold.

A purchaser at a judicial sale is entitled to a marketable title, free from reasonable doubt. He bids on the assumption that there are no undisclosed defects. The purchaser pays and the seller receives a consideration, regulated in view of this implied condition. But the question presented to the court on an application to compel a purchaser at a judicial sale who raises objections to the title tendered to complete the bargain, is not the same as if it was raised in a direct proceeding between the very parties to the right. Where all the parties in interest are before the court and the court has jurisdiction to decide, they are concluded by the judgment pronounced, so long as it stands unreversed, however imperfectly the evidence of facts were presented upon which the adjudication was made, or however doubtful the adjudication may have been in point of law. The court stands in quite a different attitude where it is called upon to compel a purchaser to take title under a judicial sale, who asserts that there are outstanding rights and interests not cut off or concluded by the judgment under which the sale was made. The objection may involve a mere question of fact or it may involve a pure question of law upon undisputed facts. In either case it may very well happen that the question is so doubtful that, although the court would decide it upon the facts disclosed, in a proceeding where all the parties interested were before the court, nevertheless it would decline to pass upon it in a proceeding to compel a purchaser to take title and would relieve him from his purchase. The reason is obvious. The purchaser is entitled to a marketable title. A title open to a reasonable doubt is not a marketable title. The court cannot make it by passing upon an objection depending on a disputed question of fact, or a doubtful ques

tion 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 the moral weight the decision might have. It would be especially 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 on a new inquiry or be open to opposing inferences. There must doubtless be a real question and a real doubt. But this situation existing, the purchaser should be discharged.

A good title means not merely title valid, in fact, but a marketable title which can again be sold to a reasonable purchaser or mortgaged to a person of reasonable prudence as security for the loan of money.

A purchaser will not generally be compelled to take a title when there is a defect in the record title which can be cured only by a resort to parol evidence, or when there is an apparent encumbrance which can be removed or defeated only by such evidence; and, so far as there are exceptions to this rule, they are extraordinary cases in which it is very clear that the purchaser can suffer no harm from the defect or encumbrance.

A court of equity often says this is a title which, although we think it available, is not one which we will compel an unwilling purchaser to take.

Dealings in real estate generally involve large pecuniary values and large amounts are frequently invested in buildings and other improvements. The law is such that an adverse claim need not be asserted for many years until time has closed the mouths of living witnesses and destroyed ancient muniments of title. For many purposes a doubtful title is a worthless title. Hence it is generally the expectation of vendees entering into executory contracts for the purchase of land that they will receive not only a good title, but one free from reasonable doubt and damaging infirmity;

and such a title it must be assumed that every fair, honest vendor expects to give unless he is freed from the obligation by some express stipulation in the contract, and this understanding should be respected and enforced by both courts of law and equity.

It is true that courts of equity have, in some cases, compelled purchasers to take titles resting upon adverse possession. But in such cases the adverse possession was established beyond any reasonable doubt. It is a fact usually open and notorious and generally known to many witnesses. Such a title is strengthened by every passing hour. The practice of the court has not been to decree specific performance if there is a reasonable doubt on the construction of the instrument on which the plaintiff's title depends, and if there are persons not parties who would have a right to dispute the defendant's title.

When a person sells property which he is neither able to convey himself nor has the power to compel a conveyance of it from any other person, the purchaser, as soon as he finds that to be the case, may say, "I will have nothing to do with it." The purchaser is not bound to wait to see whether the vendor can induce some third person (who has the power) to join in making a good title to the property sold.

Every one has a right to select and determine with whom he will contract, and cannot have another person thrust upon him without his consent.

Pollock on Contracts says: "Rights arising out of contracts cannot be transferred if they are coupled with liabilities or if they involve a relation of personal confidence such that the party whose agreement conferred those rights must have intended them to be exercised only by him in whom he actually confided."

In a contract of sale, where payment of a portion of the purchase-money is deferred and there is no provision for securing such payment, it is a necessary inference that the character and solvency of the vendee was an inducement to the contract, and the contract cannot be assigned so as to permit the assignee to enforce it and compel the vendor to

substitute the obligation of any other person for the obligation of the one with whom the contract was made.

A party to a contract, or those standing on his rights, to entitle himself to a specific performance of the provisions of the contract, which are to be performed for his benefit, must affirmatively establish that he has faithfully kept and performed, or is ready and willing to keep and perform, all the provisions of the contract resting upon him to perform, for the benefit of the other party.

[Lapse of Time, Cost, Lack of Equity.]

The rule is well settled that in an action at law upon the contract, or to recover back the consideration as upon a rescission of the contract by the act of one of the contracting parties, can only be maintained upon technical and formal default, unless it may be in some exceptional cases, as when a party has put it out of his power to perform, so that a tender and demand would be nugatory. The same principle applies when equitable relief is sought, on the alleged ground of a rescission of the contract by the act or default of one of the parties to it.

The distinction between an action for specific performance in equity and a suit at law for damages, for non-performance, is this, that in the latter the right of action grows out of a breach of the contract, and a breach must exist before the commencement of the action while in the former the contract itself, and not a breach of it, gives the action.

A demand of performance before suit brought is only important in reference to the costs of the action, and has no bearing upon the merits or the rights of the parties. But by a demand and refusal the party liable to perform is put in the wrong and in the situation of unreasonably resisting the claim of his adversary, and is, therefore, chargeable with costs.

Costs in equity are always in the discretion of the court; and whether they are granted or withheld they are but incidents to and no part of the relief sought. A party getting the relief asked may be compelled to pay costs, but never

theless his cause of action had accrued upon the filing of the bill or the commencement of the suit.

A party filing a bill for a specific performance, upon an offer of performance on his part and a demand from the other party, must make the proper offer in his complaint; and if he is able to perform at the time of final judgment, he is entitled to his relief, although he may not have been in a situation to perform it at the time he brought his suit. The rule is, that the plaintiff, in actions for the specific performance of contracts, must aver and plead performance, or a readiness and willingness to perform on his part.

The rule of equity is, that the cause of action arises when, and as soon as, the party has a right to apply to a court of equity for relief.

When the party entitled to a specific performance of an agreement to convey land has been in the uninterrupted possession of the premises an objection to a decree, on account of the lapse of time, will not be sustained. The possession saves the action and makes the case an exception to the rule which controls the other executory contracts.

If in equity the title to the real property is vested in the plaintiff either as against the defendant or third persons, the right, just so far as it has vested, will be protected whenever it is assailed.

An agreement for a lease is not a lease, or an equivalent to a lease, and an agreement to create or grant an easement is not a grant or its equivalent.

The statute of limitations, by which a suit for equitable relief is absolutely barred by lapse of time, does not affect the general doctrines of equity or the principles upon which relief is granted in particular cases, or a particular class of

cases.

The time within which actions may be brought for specific performance of contracts has not been extended by implication by the statutes prescribing a time within which the action must in all cases be brought. The question still remains, and must be decided in each action, although brought within the statutory limit as to time, whether under the peculiar