dissenting. I have not been able to satisfy myself from anything advanced before us, of the absence of all obligation on the part of the defendant to restore to the plaintiff his deposit. There seems to be no doubt of the title to the land in question of the parties on behalf of whom, as vendors, the contract in question was made. Without reference to the minority of some of such vendors, the pendency of proceedings to authorize some disposition of their interest, and the authority given to a special guardian, to sell or mortgage as he should think fit, and laying out of view the fact that it was made by an agent, it appears on its face to be a mere contract by owners of land to sell and convey it, giving a good title therefor by a certain day. By introducing such extraneous facts, not noticed in the contract, it is sought to be converted into a mere contract by the defendant or his principals, to procure a conveyance of a good title by a certain day, which, of coursé, would be entirely speculative. To accomplish this, the condition of the return of the deposit in case of the insufficiency of the title on examination is brought down to a mere absolute failure of title. The procuring of an order from a court authorizing the execution of a conveyance two days before the time for delivering it expired, and a tender of such conveyance one day before that time, is claimed to be a compliance with such contract, although no time was thereby afforded for any examination of the title at all. Both parties on the contrary, treated the examination spoken of as one to be commenced forthwith, when of course the infancy of some of *415the vendors, the inchoate condition of the authority to the special guardian, and the alternative character of the disposition, thereby authorized as being to sell or mortgage, might be discovered. Nothing short of prophetic power in such case would have enabled the plaintiff to discover on his examination of the title, whether the supreme court would or not authorize a sale, and confirm the contract in question. The fact that they did so, has no bearing on the question whether the title thereby to be acquired was that to investigate which the plaintiff was entitled, as well as to a reasonable time for the purpose of discovering its sufficiency. I apprehend that the only legitimate construction of such contract according to its terms, is that the vendors therein named undertook that they had a good title, which they would be ready to convey on or before the succeeding first of November, into an examination of the sufficiency of which the plaintiff could forthwith enter. And the legal result of it was, not that the plaintiff was bound to wait until the succeeding first of November to ascertain whether a title could then be acquired, which he was bound to take without examination, provided it should eventually prove good, but that if on an immediate examination he could find no one authorized to give him a title, he could rescind the contract and recover back his deposit. Under the contract there was no one from whom the plaintiff could at any time demand a conveyance, and the defendant could retain his deposit until.at least the first of November, and then pay it back to him, and thus rescind the contract.
I cannot but regard the word “ insufficient,” as applied to the title in this contract, as meaning something more than defective. The warranty of a good title, implied in every sale of lands (Burrell agt. Jackson, 9 N. Y. R. 535), was already inserted in express terms. And it was stipulated that “ if the title should on examination be found insufficient,” the deposit, with interest, was to be returned. Some act of examination was necessary, which was to be *416done by the plaintiff, and the word “ insufficient,” as expressive of its result, did not describe an absolute but a relative defect, having regard to some purpose or consequence. Taken in connection with the examination to be made, it probably was used in a sense similar to unsatisfactory to the plaintiff as a purchaser, that is, one to which a reasonable objection could be made, with which the party ought not to be satisfied (Faven agt. Davison, 2 Duer’s Rep. 158), and not as an absolutely bad title, or none at all. I think, however, that the making of the contract for vendors incompetent to convey any title, the title proposed to be given by a guardian appointed in a judicial proceeding, whose authority to sell rested entirely on the future discretionary action of the supreme court in which such proceeding was pending, and against whose neglect or omission the plaintiff had no redress, and the character of the contract being a sale not yet sanctioned by the court in question, and, therefore, not binding on the supposed vendors, formed reasonable grounds of objection to the title, within the meaning of such contract. Such objection was substantially stated by the plaintiff on the tender of the deed. Upon either ground, therefore, that the contract was made on behalf of persons incompetent to convey, and was not a mere covenant to procure a title in future, or that no authority to convey was vested in any one, thus rendering the power of giving the title agreed to be given impossible, and of course any title that could be given to the plaintiff insufficient, I think he had a right to rescind it. If the examination of the title was to be made after the acquisition of authority to convey, I think the objections specified in my opinion at special term were good grounds for rescinding the contract, as rendering the title insufficient within its meaning.
I think the judgment should be affirmed.