According to the contract, the parties agreed (1) to give and accept a title which the title company would approve; (2) that the vendor would convey and the vendee receive a fee title free from incumbrances. If the title were good and yet the title company refused to insure, the vendee would be relieved. If the title were defective, even if the title company would agree to insure, again the vendee would be relieved. To compel the vendee to take title, both these conditions must be met. Failing in either, the vendor cannot compel the vendee to take. If the vendee failed to engage the title company to pass upon the title, nevertheless if the title be defective the vendee would be relieved. In a lis pendens and complaint on file at the time the contract to purchase was made it was alleged that the vendor had taken title collusively under a mortgage foreclosure sale and that he held the title in trust for the widow and her infant children. Although the action was discontinued and the lis pendens canceled as to the adult defendant (the only party served), here was notice of a claim in behalf of infants which might be made in the future. There was hazard of future litigation. (Fleming v. Burnham, 100 N. Y. 1, 10; Simon v. Vanderveer, 155 id. 377; Brokaw v. Duffy, 165 id. 391, 399, 401; Van Vliet & Place, Inc., v. Gaines, 249 id. 106.) In our opinion this title is unmarketable and, therefore, the purchaser should be relieved.
Judgment reversed upon the law and the facts, with costs, and judgment granted for the defendant, dismissing the complaint, with costs. Findings of fact and conclusions of law inconsistent herewith are reversed and new findings and conclusions will be made.
Settle order on notice.