I cannot agree to the conclusion of the majority. The facts recited in the majority opinion as to the title are substantially correct. Appellants' grantors were contingent remaindermen, and held no other title to the land. The contract required them to furnish an abstract showing a good and sufficient title. The abstract disclosed the defects in the title; but these were not, in fact, known to appellants. On the contrary, they appear to have been assured by the opinion of an abstracter to whom they submitted the abstract for examination, that the title was good. When the mortgage executed in part payment of the purchase price came due, and appellants undertook to negotiate a loan with a third party for the purpose of securing the money with which to pay it, they learned for the first time the facts concerning the title. Instead of rescinding the contract, as they then had a right to do, they entered into an agreement with appellees for an extension of the loan for another five years. Upon failure to pay the interest on the note, this action was commenced, to foreclose the mortgage. Appellants set up the defects in the title which disclosed the inability of appellees to perfect it in any way, offered to place them in statu quo, and prayed a cancellation of the deed and the rescission of the contract.
It is conceded by the majority that mere lapse of time for less than the statutory period does not justify a plea of laches. Indeed, as stated in 21 Corpus Juris 215, it is a familiar rule that:
"Where, however, plaintiff comes into equity, not for the creation or establishment of an executory right, but for the *Page 1189 mere protection of an executed or vested legal right, the doctrine of laches has little, if any, application. The rule here applied is that, unless the statutory period of limitations has run, or sufficient time has elapsed to create a presumption of grant, no mere delay is a bar to equitable relief in support of the legal right, and that plaintiff is precluded from relief only by such conduct as creates an abandonment of the legal right itself, or an estoppel to assert it against defendant."
The position of appellants in the case before us is that of cross-petitioners, seeking affirmative relief. I will concede that, if appellants purchased only such interest as their grantors possessed in the land, and same was conveyed to them, they cannot complain, no matter how imperfect the title may in fact be. This they did not do. The duty rested upon appellees to convey to them a good title, which duty was an affirmative and continuing one. It was not terminated by the execution of a deed with covenants of seizin and warranty.
The theory of the majority, based upon the alleged merger of the contract in the deed, that appellants were deprived of every remedy except the precarious one of, sometime in the future, after the death of their grantors, maintaining an action against their estate on the covenants of the deed, provided, of course, that an ouster has taken place, does not appeal to me as sound. The doctrine of merger as here enunciated goes too far. The deed did not merge all the terms of the contract. Huxford v. Trustees,193 Iowa 134. The rule of law that recovery of actual damages for the breach of a covenant and seizin is postponed until ouster, is, of course, well settled in this state; but there is something more in this case than a mere right to recover damages at some future period. The action is for the recovery of a part of thepurchase price, and partakes, somewhat at least, of the nature of an action in equity for the specific performance of a contract. If it were, in fact, a simple action for the specific performance of a contract to enforce the payment of the purchase price, and it appeared that the seller had no title, no recovery would, of course, be allowed. Why should a recovery, on the same state of facts, in a different form of action in the same forum, with the same inequitable results, be allowed? I find nothing in the record remotely or otherwise *Page 1190 tending to show prejudice to appellees, or waiver or abandonment of any right on the part of appellants, or any such change in the situation of the parties as to make rescission inequitable and the recovery of the full purchase price without performance of the contract on the part of appellees, equitable. I maintain that appellants were not bound to rescind until appellees demanded payment of the purchase price. Appellants were unaware of the full defects in the title prior to 1919, when they sought a new loan; and even then they were advised by the attorney consulted by them that, in his judgment, their title was good, subject only to the contingency that other children might be born to the life tenant, — which could not occur.
The obligations of the parties under the contract were mutual. Appellees failed almost wholly to perform on their part, and I am unwilling to hold that appellants are deprived of relief in equity because of the mere lapse of time, and nothing more. There may have been some depreciation in land values after 1919; but appellees were at all times conscious of their failure to comply with their requirement, and that their deeds carried with them little more than a mere right of possession. I think appellants should have been permitted to rescind the contract. If this cannot be, then I can perceive no objection to placing a provision in the decree suspending the right of execution until the title has been perfected in appellants, upon condition, however, that appellants pay the interest on the mortgage at the rate of six per cent, and keep the taxes paid on the land.
ARTHUR, C.J., joins in this dissent.