dissent">McCulloch, C. J.,

(dissenting). The law of the case is well settled by decisions of this court cited in the opinion of the majority, and the decision turns on the construction of the contract of the parties. My interpretation of the contract is that it requires the seller to furnish a good title — an abstract showing good title, which means a good record title, for, unless the abstract shows it, there is no record title. A good title must be a record title, otherwise the abstract will not disclose it, for an abstract is merely an epitome of the record. It is not within the purport of an abstract to show title resting, upon matters in pais. The contract involved in this case provides that the seller shall furnish an abstract “covering said land,” and that the purchaser shall have time for his attorney to examine it and report defects, if any, found; that the seller shall have thirty days “within which to cure defects in the title, if any, and redeliver said abstract and curative work.” The next sentence reads as follows: “If said abstract of title shows a good title to said property in party of the first part, at either of said times, then the bank is authorized to deliver said deed.” The latter sentence determines, I think, the character, of the contract. It clearly means that “at either time;” that is to say, when the abstract is first delivered, or when it is redelivered after completion of the “curative work,” it must show a good title, not that the curative work shall show a good title, but that the abstract shall show it.

.The “curative work” referred to in the abstract must be such that will perfect the record title. I think, the term “curative work” relates to matters such as additional deeds, confirmation decrees, and the like, which can be put on record so as to appear in the abstract. It does not relate to matters in pads, such as proof of adverse possession. Any other interpretation disregards, in my view, the sentence in the contract which .provides that the abstract must “at either time” show a good title.

In the case of Danzer v. Moerschel (Mo.) 214 S. W. 849, 7 A. L. R. 162, the Supreme Court of Missouri said:

“The great weight of authority supports the rule that an abstract is an epitome of the record evidence of title; that a contract calling ‘for an abstract showing good title’ calls for record evidence; that nothing less will ‘satisfy the condition, no matter what the vendor’s title might be;’ that ‘it is not sufficient that the title is good in fact, that is, capable of being made good by the production of affidavits’ or other..oral testimony; it must be good of record;’ that in such case title by adverse possession will not suffice.”

In the case of Lake Erie Land Co. v. Chilinski 197 Mich. 214, 163 N. W. 929, where the court held that there should be “an abstract showing marketable title,” the court said:

“If the abstract does not, on its face, show a merchantable title, and it required oral proof to establish the fact that the title is a merchantable one, a contract agreeing to furnish an abstract showing a merchantable title is not complied with. The abstract itself must furnish the evidence that the title is merchantable.”

In Moser v. Tucker (Texas Civ. App.) 195 S. W. 259, the Texas court said:

“Where the abstract is to show a merchantable title, it cannot be supplemented with affidavits, oral proof, or writings not recordable.”

In Maupin on Marketable Title's to Beal Estate, 3d ed., § 288, the rule is laid down as follows:

“The right of a purchaser to reject a doubtful title depends, of course, upon the terms of his contract. He will have no right, if he has agreed to accept the title such as it is. On the other hand, the vendor cannot resort to parol evidence to remove doubts about the title, if, by the contract, he is to furnish a ‘good title of record,’ nor if he obligates himself to deliver an abstract showing a good title * * * , nor will the purchaser be required to go outside of the abstract in examining the title.”

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