·Am.Ms !U.`V2\IJEN'1`INE. 3
forxnance with allowances, the purchaser will not be subjected tothe con- T
tingency 'of being disturbed, or having his title successfully challenged
when hezattempts to part with it.` In such actions, unless the party is
present in whom the outstanding right is vested, the court will not un-
dertake to cure iniirmities by deciding a disputed question of fact or a
doubtful question of law, but will refuse to decide for or against the va-
lidity of thetitle. Pyrke v. Waddingham, 10 Hare,. 1; Bell v. Holtby, L.
R. 15 Eq. 178; Swaynei v. I4;on,?67·Pa. St. 436; Dobbs v. Norcross, 24
N. J. Eq. 327; Grtfin v. Cwnntnglmm, 19 Grat. 571 ; Park Com’rs v. Arm-
strong, 45 N; YQ234. f
l The case of Jejfriea v. Jqfrvbs, 117 Mass. 184, is in point. That was
a bill in equity to enforce specific performance by the defendantiof an
agreement for the purchase of a house and lot of land in Boston. The
defensewas that the title was incumbered by a condition which prevented
the erection of any building exceeding a specified height upon the part
of the land abutting on the street. The court used this language:
"It isurged by the plaintid that the court should, at least, pass upon the
question whether the proviso in the deed is a condition now in force which
may defeat the title derived under it, because otherwise it can never be brought
to a decision- except at the risk of the forfeiture of the entire estate. But that
is precisely what the court has not power to do so asto conclude those to
whom the benefit of the condition, if it be one, has passed; and the effect of a
decree overruling the defense would be simply to transfer from the plaintiff
to the defendant whatever of risk or inconvenience there may be from such a
cause. Hence the propriety and necessity of the rule in equity that a defend-
ant in proceedings for specific performance shall not be compelled to accept a
title inthe least degree doubtful. It is not necessary that he should satisfy
the court that the title is so defective that he ought to prevail at law; it is
enough if it appear to be subject to adverse claims which are of such a nat-
ure as may reasonably be expected to expose thepurchaser to controversy to
maintain his title or rights incident to it. " ‘
The restrictive clause in the Mason-Bulfinch deed, and the succeeding
conveyances referred to in the defendant’s notice of rescission, applies to
a strip of land adjoining Mount Vernon street which is 30 feet in width,
and, whether treated as a strict condition, or only as a covenant running
with the land, constitutes a defect in the title of the property which is
not susceptible of pecuniary compensation. Gilbert v. Peteler, 38 N. Y.
165. If it is only acovenant, it affects part of the land purchased by the
defendant with a servitude of a substantial nature, and the diminution in
the value of the property purchased cannot be ascertained with any ap-
proximate accuracy. If the clause creates a condition, it constitutes a
fatal defect in the title which the defendant is asked to accept. By the
contract of purchase the defendant stipulated, in substance, to accept a
title which would be subject to a servitude restricting the mode of use
of the strip of land abutting on Mount Vernon street. Giving proper
effect to the contract, he is entitled to have a clear title, free from all in-
cumbrances except a servitude affecting only the strip in question; but
he is not required to accept a title by which the whole estate becomes
liable to forfeiture in case the part subjected to the restricted use is ever
appropriated to a different use. V l