ARGUED AND DETEBMINED .
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(017mua Court, S. D. New York. November 1.1, 1887.)
1. Sraomrc PERFORMANCE-—WHEN Emvoaonn.
Equity will not decree specinc performance of a contract to purchase real
estate, when the vendor is unable to offer a marketable title to the purchaser;
and a title open to a reasonable doubt is not a marketable one.
2. DEED—OUNDITIONS—FOBFEITURE. , ·
The clause in a deed, “provided, and this deed is upon condition, that no
building shall ever be erected upon such premises nearer to M. street than
the house of O. now stands, " creates a condition as distinguished from a lim
itation or covenant, and the whole estate conveyed becomes liable to forfeit
ure in case of a breach of the condition.
8. SAME.
Although the courts lean against forfeiture, and will construe words as cre-
' ating a covenant or restriction instead of a condition, which are capable of
such construction, they are not to ignore the settled legal significance of the
V language employed. `
4. Vmmoa AND VENDEE-·DEFECT IN Trrnm-Dnrnnmmnnm Fans.
Complainant agreed to sell, and defendant to buy, certain real estate, with
a dwel ing-house thereon fronting on M. street; “t1tle to be good or sale void;
and sale subject to restriction against building beyond the present front line
of the house. " Held, that defendant was entitled to a clear title, free from all
, incumbrances except a servitude restricting the mode of use of the strip of
land between the front line of the house and M street, and that it was a
good defense to a suit for specific performance that the complainant’s interest
in the land was a base fee, liable to be determined as to the entire tract upon
encroachment on the strip in question for building purposes; such a defect
in the title not being susceptible of pecuniary compensation. _
` 5. Sraoxrro Pnma·onMANon—Rmoovnnv or Mortar Pam.
Defendant, in a suit for specific performance of a written contract for the
purchase of land, may recover the earnest money paid, without filing a cross-
bill, where the title oifered is bad, and the return of the money is insisted
upon in the answer.
In Equity.
George H. Adams, for complainant.
H. W. Chaplin, for defendant.
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