¶1dissenting. This is a specific performance case. In Carrick v. Gorman, 232 Ark. 729, 733, 340 S. W.2d 377,380 (1960), the Supreme Court stated the rule that a vendor must have good title when he sues for specific performance. Here, everyone agrees appellees’ title is defective because at least two people hold a part of the subject land adversely. The majority’s decision upholding the trial court’s order granting the appellees (vendors) specific performance is clearly contrary to the rule of property announced in Carrick v. Gorman.
¶2The majority relies on the case of Yeates v. Pryor, 11 Ark. 58 (1850). In Yeates, the vendee filed a suit to cancel his contract to purchase land from the vendor because the vendor’s title was defective. The Court held the vendee was entitled to rescission because the vendor failed to perfect title to the land he agreed to convey. The Court indicated, however, that if the defect had been small or immaterial, it would have held otherwise.
¶3While a materiality issue may be relevant in a rescission action brought by a vendee, such an issue is inapposite in a situation in which the vendor seeks specific performance. This distinction was noted in Carrick v. Gorman, supra. In sum, the court stated in Carrick that a vendee, seeking cancellation of a contract, cannot avail himself of defects in the vendor’s title without first giving the vendor notice and a reasonable opportunity to cure the flaw. But when it is the vendor who files suit to enforce the contract and the vendee pleads a defect in title, the Court stated it would be manifestly impractical to permit the vendor to ask in the middle of the trial that the hearing be adjourned to afford him an opportunity to remedy the defect. Hence, the rule: a vendor must have good title when he sues for specific performance.
¶4Because the instant case was instituted by the vendor for specific performance, I am convinced the holding in Yeates v. Pryor is not applicable. After appellant showed that appellees’ title was defective, appellees’ request to enforce the parties’ contract should have been denied. Materiality — like that considered in Yeates — was not a relevant issue. Rather, the sole question here was whether appellees could convey merchantable title; the evidence is clear that they could not.
¶5The Supreme Court in Holt v. Manuel, 186 Ark. 435, 54 S.W.2d 66 (1932), a specific performance case, said that a merchantable title is held to be one which imports such ownership as enables and insures to the owner the peaceable control and use of the property as against everyone else. The Court also related the following approved definition of merchantable title:
“A marketable title is one that is free from reasonable doubt. There is reasonable doubt when there is uncertainty as to some defects appearing in the course of its deduction, and the doubt must be such as affects the value of the land or that will interfere with its sale.” Griffith v. Maxwell, 63 Ark. 548, 39 S.W. 852. And in Fenner v. Reeher, 148 Ark. 553, 230 S.W. 581, we quoted with approval the following: “The court will never compel a purchaser to take a title where the point on which it depends is too doubtful to be settled without litigation, or where the purchase would expose him to the hazard of such proceedings; or, as it is usually expressed, it will not compel him to buy a lawsuit.” (Emphasis supplied).
¶6Id. at 437-38, 54 S.W.2d at 67.
¶7Considering only the evidence reflecting the hostile claims against the farm land — not to mention the tenant who farms part of the land under an oral lease — it is obvious that future litigation will ensue. Even if appellant chooses not to sue to protect his interests, the people holding adversely are sure to file suit to quiet title in the land they farm. Appellant, no doubt, has brought lawsuits.
¶8Appellees argue that because this was a sale in gross, the small amount of acreage lost to others by adverse possession is immaterial and should not relieve appellant from his contractual obligations. This shortage in acreage is not the result of a mistake or misstatement of the quantity of lands contained within the legal description. Rather, it is the result of appellees’ failure to hold good title to part of the land because of encroachments. I can find no Arkansas case law which would apply rules governing sales in gross to the type situation that exists here, and I am of the opinion those rules are inapplicable.
¶9In conclusion, appellant has been forced to purchase land which he did not agree to buy. In addition, that “unagreed-to land” is conveyed with “unwanted future litigation.” He simply should not have to buy such litigation, especially when he is not receiving the land which he agreed to purchase in the first place.
¶10I would reverse.
¶11I am authorized to state that Corbin, J., joins in this dissent.