SPECIFIC PERFORMANCE-MARKETABLE TITLE TO REALTY-PERFECTING TITLE BY LITIGATION AS AN INCIDENT TO SPECIFIC PERFORMANCE

Authors

J. R. Mackenzie S.Ed., University of Michigan Law SchoolFollow

Abstract

The normal action on land contracts is two-sided, vendor against purchaser or purchaser against vendor, to settle the rights of the parties on the basis of the condition of V's title at the time of the decree. This action is quite satisfactory where V and P agree as to the condition of the title, whether free and clear or not, but must we adhere to this pattern when there is a controversy between them concerning the title? To make the question concrete, suppose that V claims he has an unencumbered fee simple while P asserts there is a paramount easement in favor of X, or, a faint echo of the same case, V claims unencumbered fee simple and P, though not positively asserting the existence of the easement, points to some evidence of an easement and insists that this makes V's title unmarketable. The crux of such a case is the controversy between V and X, an actual, present controversy if X is actively pressing his claim, a potential controversy if he is not, and this V-X controversy cannot be conclusively adjudicated in a suit between V and P. Yet the normal way, the almost universal way, to deal with this type of case is the two-sided V-P suit, wherein the court, not attempting to decide whether X's claim is valid, for this is beyond its power in the V-P action, deals instead with the elusive question whether X's claim is sufficiently plausible to render V's title unmarketable. If such is the fact, complete specific performance cannot be obtained in the normal two-sided action, and the plaintiff must content himself with rescission or damages.

Recommended Citation

J. R. Mackenzie S.Ed., SPECIFIC PERFORMANCE-MARKETABLE TITLE TO REALTY-PERFECTING TITLE BY LITIGATION AS AN INCIDENT TO SPECIFIC PERFORMANCE, 47 Mich. L. Rev. 102 (1948).
Available at: https://repository.law.umich.edu/mlr/vol47/iss1/11