In the absence of any stipulations to the contrary, the vendor, in every contract of sale, impliedly undertakes to furnish to the purchaser a marketable title. What is meant by the expression "marketable title"? It may be briefly stated in answer, that the title disclosed should extend to show a full and perfect right to property and present possession vested in the vendor. It must also embrace the entire estate or interest sold, and that free from the lien of all burdens, charges, or incumbrances, and should not only be free from litigation, but from palpable defects and grave doubts.80 It should consist of both the legal and equitable titles, and be fairly deducible of record. It may still be a valid title, even though charged with incumbrances. The terms of the contract of sale will, in most instances, determine the question of title when raised, but ordinarily, while a purchaser will not be compelled to accept a title palpably defective, he cannot justify his refusal to accept by mere captious objections, nor is it sufficient for him, when the jurisdiction of a court is invoked to compel him to perform his contract, merely to raise a doubt.

80 Smith vs. Robertson, 23 Ala. 312; Holland vs. Holmes, 14

Fla., 390; Scott vs. Simpson, 11 Heisk. (Term.), 310.

A defect in a record title, will, under most circumstances, furnish a defense to a purchaser, particularly where it affects the value of the property or would interfere with its sale, and thus render it unmarketable, but there is no inflexible rule, in the absence of stipulations to the contrary, that a vendor must furnish a perfect title of record, and it has frequently been held that defect in the record or paper title may be removed by parol evidence.81 Where, however, the title depends upon a matter of fact which is not capable of satisfactory proof, or, if capable of that proof, yet is not so proved, the title is not marketable and the purchaser is not obliged to take it.

A title, to be marketable, need not necessarily be deducible of record, for a prescriptive title may, under proper conditions, be as strong a title by grant,82 yet such titles, unless there has been a continuous holding for at least twenty years, are always liable to defeat from undisclosed defects, and even after the expiration of such period they may still be open to attack through claims by minor heirs or persons under disability.

Again, a valid title, as is self evident, should be free from latent defects or taint of fraud; yet this is something that, from its very nature, must frequently pass undetected, even by the exercise of the greatest prudence. As a rule, however, where the legal title is vested in the vendor, and there is nothing appearing from which purchasers can know that there has been any fraud in his acquisition of title, or any invalidity in any of the deeds of his chain of title, they will be protected in the purchase.

81 Hellreigel vs. Manning, 97 N. Y., 56.

82 McNab vs. Young, 81 III, 11.