The earliest case which has come to our attention holding such a doctrine is Romilly v. James, 6 Taunt. 274, decided in 1815. That was an action to recover back the deposit paid on a contract for the purchase of lands upon the alleged insufficiency of the title tendered, and there Gibbs, Ch. J., said: "It is said that the plaintiff will have made out his claim to recover back his deposit if a cloud is cast on the title. That is not so in a court of law; he must stand by the judgment of the court as they find the title to be, whether good or bad; and if it be good in the judgment of a court of law he cannot recover back his deposit. If he had gone into a court of equity it might have been otherwise. I know a court of equity often says: "This is a title which, though we think it available, is not one which we will compel an unwilling purchaser to take;' but the distinction is not known in a court of law." In that case, however, there was no question of fact depending upon parol evidence. The sole question was one of law, whether a devisee took a defeasible fee simple, with an executory devise over, or an estate tail, and the court held that he took an estate tail, and that therefore the vendor could, as matter of law, make a good title. The vendor clearly had such a title as a court of equity would now compel a purchaser to take.

In Sugden on Vendors, 13th ed. 332, it is said: "A court of law can of course decide upon the validity of a title however ambiguous or doubtful the construction may appear to be. Whether courts of law were at liberty to follow in the footsteps of equity and to hold that a title may be too doubtful to be forced on a purchaser is a question upon which eminent judges have differed with each other and even with themselves. But it appears to be ultimately settled that courts of law cannot adopt the equitable rule, and are bound to decide the legal question upon which the right to recover | must depend."

The learned author here evidently had in mind titles depending upon disputed questions of law, which a court of law could certainly and finally solve, but not titles depending upon questions of fact to be solved by parol evidence of witnesses, and which in the absence of the parties to be bound could never be said to be finally settled; and he cites as authority that a purchaser will be entitled to a marketable title at law Hartley v. Pehall, Peake, N. P. 131; Wilde v. Fort, 4 Taunt. 334; Curling v. Shuttleworth, 6 Bing. 121; and as authority that he is entitled at law to only a good title, although not marketable, Boyman v. Gutch, 7 Bing. 379; Oxenden v. Skinner, 4 Gwil. 1513; Maberley v. Robins, 5 Taunt. 625; Romilly v. James, 6 Taunt. 274.

In Jeakes v. White, 6 Exch. 873, decided in 1851, the action was brought to recover the expenses incurred by the plaintiffs in investigating the defendant's title to mortgage certain lands, and the plaintiffs recovered. Pollock, C. B., writing the opinion of the court, said:

In Simmons v. Heseltine, 5 C. B. N. S. 555, decided in 1858, after the 13th edition of Sugden on Vendors was published, it was held that when the ability of the vendor to make a good title to a purchaser of the premises sold depends upon a doubtful question of fact or of law the title will not be deemed a good or sufficient title as between vendor and vendee. There A bought certain premises the description of which in the particulars included a stall which was claimed by the purchaser of the adjoining house under the same vendor, and it was doubtful, as a matter of fact, whether the description had been corrected at the time of the sale to A, so as to exclude the stall, and as a matter of law, whether the stall was included in the conveyance to the purchaser of the adjoining premises, and a court of equity had refused to decree specific performance against A; and it Iwas held that A was entitled to receive back his deposit and interest, and the expenses of investigating the title, in an action at law against the vendor. So we do not perceive how it can be said that the law has been finally settled in England according to the text of Sugden.

In this State in O'Reilly v. King, 2 Robt. 587; Methodist Episcopal Church Home v. Thompson, 20 Jones & S. 321; Bayliss v. Stimson, 21 Jones & S. 225, the New York Superior Court held that in an action by a vendee of real estate against the vendor to recover back a deposit made on account of the purchase price, it was not sufficient for him to show that the title tendered was doubtful, but that he was bound to show that it was in fact bad and that the doctrine of equity courts as to marketable titles had no application. The latter case was affirmed in this court, not upon the law, however, as announced in the court below, but upon the ground that the objections to the title were baseless.

There is also some countenance for the doctrine of the superior court cases cited in the opinion of Folger, J., in Murray v. Harway, 56 N. Y. 337. There, however, the learned judge was of opinion that upon the facts a court of equity would have adjudged specific performance against the vendee; and it is clear that whenever such is the case the vendee cannot, in a court of law, rescind the contract and recover back a payment of purchase money.

It has been settled in Pennsylvania that a vendee can defeat an action at law brought by the vendor for an installment of purchase money under an executory contract for the sale of lands by showing, not that the title tendered is actually bad, but that it is doubtful and unmarketable. Colwell v. Hamilton, 10 Watts, 413; Ludwick v. Huntzinger, 5 Watts & S. 51; Swayne v. Lyon, 67 Pa. 436.

In Allen v. Atkinson, 21 Mich. 351, an action at law, Cooley, J., said: "The vendee had an

The case of Methodist Episcopal Church Home v. Thompson, supra, came to this court and the judgment was here affirmed upon the facts (108 N. Y. 618, 10 Cent. Rep. 506); but the doctrine of the superior court cases above cited, as well as that of Romilly v. James, supra, was distinctly repudiated. Peckham, J., writing the opinion here, said: "We disagree with the court at general term upon the necessity in such a case as this of showing that the title is absolutely bad. We think that if there was a reasonable doubt as to the vendor's title, such as to affect the value of the property and to interfere with the sale of the land to a reasonable purchaser, the plaintiff's cause of action would be sustained."

While what was thus said was not necessary to the decision of that case, it is more than a mere dictum. The opinion concurred in by the entire court was written to set right what was deemed an erroneous view of the law taken in the court below, and which night otherwise have been supposed from the opinion or the judgment to have received the approval of this court.

the defendant specific performance on the ground that his title was doubtful and unmarketable, and yet permit him to retain the purchase money because his title was in fact good although doubtful and unmarketable.

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 after 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 a good title, not only, 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 he respected and enforced by both courts of law and of equity.

Courts of law with jurors as triers of the issues of fact were deemed more competent than courts of equity to solve the doubts. But whatever foundation the reason may once have had it has none now in this State since the union of law and equity in the same courts, and since equitable defenses can be set up in legal actions. Courts in equitable actions are just as competent here to deal with both the law and the facts of a case as they are in legal actions. If the conscience of a judge in an equitable action needs information, he can obtain the findings of a jury by submitting the issues of fact to them.

So now there is no longer any reason whatever for the distinction which some judges have made as to marketable titles in courts of law and equity. If a vendor cannot, by an action for specific performance, compel a vendee to take a conveyance of land because the title is doubtful and unmarketable, why should he be permitted to compel him, in an action at law, to pay for the land, both actions being triable in the same tribunal? Why should a purchaser be compelled to pay for a title which he is not bound to take? If a vendee who has paid part of the purchase money sues to recover it back because the title tendered to him is unmarketable, the vendor in the same action can set up as an equitable defense or counterclaim a cause of action for the specific performance of the contract (Moser v. Cochrane, 107 N. Y. 35, 9 Cent. Rep. 427); and it would be quite an absurd administra

He pays his money in reliance upon the understanding that he is to have a title both good and marketable; and if the vendor does not tender him such a title there is absolutely no reason why he should not receive back the money paid, and he should not be compelled to take an unmarketable title at the peril of losing what he has paid. Take the case where a vendee has made an executory contract of sale, paid the entire purchase price, and the vendor at the time of performance by him tenders a title which by the record appears to be in another, and yet where he can show by parol evidence a lost deed or will vesting him with the title, shall the vendee be compelled to lose the money paid or take an infirm and for many purposes a worthless title? It is true that even courts of equity have in some cases compelled purchasers to take title 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. Such cases bear little analogy to one like this where the lapse of time operates in a different way and may speedily wipe out the only evidence competent to cure or remove the defect in the title tendered.

Here Barnes insists upon his lien and refuses to cancel it. The vendors should be at the expense of clearing the title of this cloud, and it is not just that they should cast that burden upon the vendee and require him to take an unmarketable title.

We therefore conclude that the judgment below is right, and should be affirmed, with costs. All concur, except Gray, J., not voting.

James R. DIXON, Plff. in Err.,

v.

WHITE SEWING MACHINE CO.

(....Pa.....)

1. Although a levy on the lgoods of a stranger to the execution will constitute a trespass, even if the sheriff never actually takes possession of them, yet to maintain an action therefor it is absolutely necessary that plaintiff must be in actual possession, or have the right of taking possession at the time of the trespass. 2. An execution sale of an agent's interest in goods, where only such interest is seized, and the goods are never taken into possession of the sheriff, is not such an interference with the principal's rights as to entitle him to

maintain trespass.

3. A sheriff who has levied upon goods as the property of the defendant in the execution may, upon notice of a claim by a third party thereto, restrict the levy to defendant's interest therein, and he may make a corresponding alteration in his "return" at any time before he has actually returned the writ into the court office; and the fact that the alteration is not actually made in the "return" until long after the return day, and until after the commencement of an action by such third party against the sheriff for trespass, is immaterial.

ERR

(October 7, 1889.)

RROR to the Court of Common Pleas of Cumberland County to review a judgment in favor of plaintiff in an action of trespass against a sheriff for wrongfully levying an execution upon plaintiff's property. Reversed.

William H. Dinkle was a dealer in pianos, organs and sewing machines in Carlisle. He was in the habit of selling on the installment plan by "rental contracts" or "conditional sale," which provided that he might resume possession in default of payment.

On July 29, 1885, being indebted to the White Sewing Machine Company, he transferred to them certain contracts for the sale of organs, and the amounts due thereon, as collateral security for the indebtedness, and agreed to collect the installments thereon as they became due. Subsequently all the organs were returned to him and afterwards he agreed with the Company's agent to keep charge of the organs and act as agent for the Company in the care and disposition of them, and in due course they went out to third parties on rental contracts.

The organs were in possession of these parties when the sheriff informed the parties holding them that he levied on them as the property of Dinkle under an execution upon a judgment recovered by the New England Organ Company against him. No actual seizure of the organs was ever made. Afterwards a notice was served on the sheriff that the White Sewing Machine Company claimed the organs and he thereupon added to the memorandum which he had made on the back of the writs "The interest of William H. Dinkle in." Dinkle's interest was subsequently sold, but possession of the organs was never delivered to the purchasers.

The Machine Company brought this action against the sheriff to recover damages for his alleged trespass in levying upon the organs. At the trial defendant asked the court to charge, inter alia, as follows:

6. The evidence shows that only the interest of Dinkle in the three organs in dispute was sold, and that at the time of such sale the chattels were in the possession of parties who had a right to the possession, and not in that of the plaintiff; nor does it appear that the right of possession was in plaintiff; and as the sheriff did not touch the chattels, nor authorize nor direct others to do so, there was no injury to plaintiff for which he can recover.

But the court returned the following answer: Under the testimony in this case we cannot affirm this point as presented. It is therefore re

fused.

A verdict having been returned for plaintiff, defendant took this writ assigning for error, among other things, the answer to the above point.

Messrs. Samuel Hepburn, Jr., Samuel Hepburn and J. W. Wetzel, for plaintiff in error:

The sheriff's action in this case was proper, and he was not liable in this action. Patterson v. Anderson, 40 Pa. 359; Schuylkill County's App. 30 Pa. 359, 360.

In all actions against the sheriff the good faith of that officer is a matter to be fully considered.

Murfree, 960.

The title and rights of the parties are affected only by the return made, which, even if made out, may be amended at any time before it is deposited in court.

Welsh v. Joy, 13 Pick. 477.

Messrs. Henderson & Hays, for defendant in error:

The sheriff levied upon the organs.

To constitute a good levy on personal property it is not necessary that an inventory should in the first instance be made of it or that the sheriff should immediately remove the goods or put a person in possession of them.

Wood v. Vanarsdale, 3 Rawle, 401. A levy upon the goods of a stranger to an execution is an exercise of dominion over them sufficient to constitute a trespass, though there be no actual taking of the goods.

Welsh v. Bell, 32 Pa. 12.

The return of the sheriff was not conclusive. Weidman v. Weitzel, 13 Serg. & R. 96.

Mitchell, J., delivered the opinion of the court:

The common-law requirement of a valid levy that the sheriff shall take actual possession of the goods has been relaxed in Pennsylvania to a degree that has been regretted by the judges of this court. Cowden v. Brady, 8 Serg. & R. 510; Schuylkill County's App. 30 Pa. 359.

But none of the cases have gone further than to hold that a levy in sight or within potential control of the goods will be valid only when followed up by actual possession within a reasonable time. Cowden v. Brady, supra; Com. v. Stremback, 3 Rawle, 345; Com. v. Contner, 18