## Facts

- Frank and Mrs. Bartos contracted to buy real property from Mrs. Czerwinski for $6,300, paying $200 down.
- The agreement required the seller to provide an abstract showing “good and marketable title” and allowed return of the $200 if title was unmarketable.
- The abstract revealed a chain of deeds creating a plausible claim that a third party, Eppinga, retained an undivided one-half interest due to the timing and recording of deeds among Hickey, Eppinga, and a bank.
- Buyers, through counsel, refused to accept the conveyance unless the seller eliminated the apparent defect or provided protection against potential litigation over title.
- The seller’s son attempted to obtain an additional quitclaim deed from Eppinga to clear the suspected interest, but the effort failed.
- The buyers sued in equity seeking specific performance requiring the seller to convey and to take affirmative steps to clear the suspected defect.
- The trial court denied specific performance and dismissed the suit; the buyers appealed.

## Issues

1. Whether purchasers promised “good and marketable title” are entitled to specific performance compelling the vendor to convey and to cure a suspected defect where the abstract shows a plausible outstanding interest in a third party.
2. Whether equity should order a vendor to obtain or extinguish an alleged outstanding interest when there is no showing the vendor can secure the third party’s conveyance.
3. Whether dismissal of the buyers’ equity action should be without prejudice to an action at law for damages.

## Decision

- The Michigan Supreme Court affirmed the denial of specific performance.
- The court refused to compel the seller to perfect title by procuring a conveyance from the alleged outstanding-interest holder absent proof the seller could do so.
- The buyers’ bill was dismissed without prejudice to pursuing damages at law.

## Legal Principles

- A title is unmarketable if a reasonably careful and prudent purchaser, informed of the facts, would refuse it in the ordinary course of business.
- Title need not be actually defective to be unmarketable; reasonable doubt or uncertainty that may form the basis of litigation is sufficient.
- A purchaser promised marketable title is not required to accept a conveyance that could reasonably invite litigation over possession or ownership.
- Specific performance is discretionary; equity generally will not order relief that depends on compelling action by a nonparty or on uncertain ability to secure an outstanding interest.
- When specific performance is inappropriate, the proper remedy may be an action at law for damages.

## Conclusion

The court held that, even if the abstract raised a reasonable doubt about marketability, equity would not order specific performance requiring the seller to cure the suspected defect by obtaining a third party’s conveyance without proof the seller could accomplish it, and the buyers were left to pursue damages at law.


Bartos v. Czerwinski, 34 N.W.2d 566 (Mich. 1948)