Wiemann v. Steffen. down as earnest money thereon. It was agreed that the balance of the purchase price should be paid in part, and in part secured by plaintiff to defendant, on the first day of March, 1911, at which time the deed was to be executed by defendant and his wife and delivered to plaintiff and possession of the premises given. It is stipulated in the written contract that defendant should, on that date, make and deliver to plaintiff "a general warranty deed to said lands with good and marketable title, free from all liens and defects except taxes due for the year 1911." The controversy in the case relates to this matter, for the plaintiff insists that defendant did not tender a marketable title, whereas the court found he did. Plaintiff paid $500 earnest money on the bargain when the contract was entered into several months before, and it appears that he was ready, able and willing to complete the purchase on March 1, 1911, and, indeed, extended the time until noon of March 2 of that year, to enable defendant to clear several defects in the title. Although there is no stipulation in the contract requiring defendant to furnish an abstract, it appears that he did so and plaintiff's attorney examined it prior to March first. On such examination several minor defects in the paper title were discovered and pointed out, and it appears defendant corrected all of them save one which relates to the apparent outstanding title of a one-eighth interest in sixty-five acres of the land, which title, it is said, according to the records, resides in one Joseph Story. It appears that defendant had claimed to own the land for more than thirty-two years under a general warranty deed, and that, though he had resided thereon, cultivated it, paid the taxes, and exercised the usual acts of ownership with respect to it during that time, plaintiff objected to the title tendered because of such apparent outstanding one-eighth interest in sixty-five acres in Joseph Story. After waiting until noon of March 2, Wiemann v. Steffen. 1911, for defendant to correct the record title with respect to this interest, plaintiff declared a rescission of the contract and demanded the return of the $500 earnest money paid, because, as he asserts, the title tendered was not good and marketable, free from all defects. On the other hand, defendant insisted the title was sufficient, when considered together with his occupancy and claim of ownership under the Statute of Limitations and, therefore, denied plaintiff's right to rescind. The case concedes that Joseph Story derived from his grandmother, through descent, in 1896, title to a one-eighth interest in the parcel of land referred to, consisting of sixty-five acres, and no deed from him appears. But, on the trial, the court received evidence showing that defendant's right to the identical land and interest had ripened into a complete title under the Statute of Limitations through adverse user and occupancy under claim and color of title attended with the usual indicia of ownership. But this evidence was objected to on the theory that the stipulation for a marketable title required the showing of such title by deeds or proper conveyances and excluded the idea by establishing it through user under the Statute of Limitations. Moreover, the court refused to declare the law, on plaintiff's request, to the effect that he was not obligated to accept from defendant a title resting as to any part of the land contracted for by him on the Statute of Limitations. It is urged the court erred in its view of the law thus disclosed, in that the covenant for a marketable title, free of defects, implies a title to be shown in proper conveyances alone, and may not be satisfied through showing an absolutely good title under the Statute of Limitations. But we are not so persuaded. The law implies that one selling land shall furnish a good title and it is said that a good title and a marketable title are the same. [See Kent & Obear v. Allen, Wiemann v. Steffen. 24 Mo. 98; Kling v. A. H. Greef Realty Co., 166 Mo. App. 190, 148 S. W. 203; 39 Cyc. 1442; 29 Am. & Eng. Encyc. Law (2 Ed.), pp. 610, 611.] However, sometimes the parties stipulate in their contract, and it is certainly competent for them to do so, for a title of a particular kind and character, even where otherwise a different character of title would be sufficient; such, for instance, as where the contract specifically provides that the title shall be shown of record or by means of an abstract. In cases of that character, of course, it is essential to comply with the condition of the contract and show a title of record or as by an abstract, etc. [See Thompson v. Dickerson, 68 Mo. App. 535; St. Clair v. Hellweg, 173 Mo. App. 660, 159 S. W. 17; 39 Cyc. 1442, 1445, 1446, 1447.] But the term "marketable title, free from defects," does not imply that no other title than one shown in proper conveyances or of record or revealed in an abstract from the record will suffice. Neither is there an implied covenant in those words to the effect that the title will be such as the vendee will be willing to accept or that his attorney may pronounce good and marketable. [See Green v. Ditsch, 143 Mo. 1, 44 S. W. 799.] It is said that the words "marketable title" mean a title which a reasonable purchaser, well informed as to the facts and their legal bearings, willing and anxious to perform his contract, would, in the exercise of that prudence which business men ordinarily bring to bear upon such transactions, be willing to accept and ought to accept. [See Kling v. Greef Realty Co., 166 Mo. App. 190, 195, 196, 148 S. W. 203; Todd v. Savings Institution, 128 N. Y. 636; 29 Am. & Eng. Encyc. of Law (2 Ed.), 613; 39 Cyc. 1452, et seq.] But unless the contract calls for a record title or a title appearing in conveyances, as by an abstract or something of that nature, a good title by adverse possession under the Statute of Limitations is sufficient and regarded as a marketable title. It is said that such is the rule according to the great weight Wiemann v. Steffen. of authority. [See 39 Cyc. 1460.] It is certainly the rule in Missouri, as will appear by reference to the decision of the Supreme Court in Scannell v. American Soda Fountain Co., 161 Mo. 606, 618, 619, 61 S. W. 889. The law on the subject is thus stated in 39 Cyc. 1460, 1461, 1462, 1463: "Where the contract expressly or impliedly calls for a record title, a title by adverse possession, prescription, or limitations, is not sufficient; but such a title is marketable and sufficient, according to the great weight of authority, where the contract does not call for a title of record. Where there is a possibility of an outstanding title, undisturbed possession for a long period of time renders the title marketable. The vendor must, however, clearly show that the facts are such that lapse of time gives title by adverse possession and that the title is free from reasonable doubt. He must be able to show that the adverse claimant of the property was not under such disability that the statute would not run against him, that the possession was in hostility to such owner and exclusive, and that the time prescribed by the statute has not been prolonged by any act of the parties. The parol evidence to support such a title must be such as cannot be contradicted. and will not be difficult to obtain." In this view the court very properly received the evidence showing good title in the defendant under the Statute of Limitations and also in refusing the instructions requested by plaintiff, for it is obvious the title tendered by defendant was a marketable one free from defects. The judgment should be affirmed. It is so ordered. Reynolds, P. J., and Allen, J., concur. Moore v. Express Co. JOSEPH MOORE, Respondent, v. AMERICAN EXPRESS COMPANY, Appellant. St. Louis Court of Appeals, January 5, 1915. 1. MASTER AND SERVANT: Injury to Servant: Safe Place to Work: Assumption of Risk. Where the superintendent of defendant's stables and a servant whose duties made it necessary that he should go into the stalls both knew that one of the horses was vicious and would kick, and the servant suggested that such horse should be put into a box stall, but was told by the superintendent that all he had to do was to be careful and he would not be hurt, he did not assume the risk of an injury from the horse kicking him when he approached it with due care, since a servant assumes only such risks as are ordinarily incident to the employment and the injury arose out of the master's negligent failure to exercise ordinary care to furnish the servant a reasonably safe place in which to work. 2. : Reliance on Master's Promise. Where the superintendent of defendant's stables and a servant whose duties made it necessary that he should go into the stalls both knew that one of the horses was vicious and would kick, and the servant suggested that such horse should be put into a box stall, but was told by the superintendent that all he had to do was to be careful and he would not be hurt, such statement by the superintendent conveyed an assurance of safety to the servant, in the event he was careful; the rule that an experienced servant may not rely on an assurance of safety from an inexperienced master, where the servant knows more of the attendant dangers than the master does, not being applicable, since the superintendent possessed full and complete knowledge pertaining to the vicious propensities of the horse. [REYNOLDS, P. J., dissents.] Appeal from St. Louis City Circuit Court.-Hon. Thomas C. Hennings, Judge. AFFIRMED. Watts, Gentry & Lee for appellant. (1) The court erred in overruling this defendant's demurrers to the evidence. A servant injured by 186MoApp38 |