Opinion
Gen. No. 44,030. (Abstract of Decision.)
Opinion filed May 20, 1947 Released for publication June 9, 1947
VENDORS AND PURCHASERS, § 21 — merchantable title as affected by existence of outstanding mortgage. Existence of unpaid mortgage affording vendors privilege of prepayment in full at any time did not render vendors' title unmerchantable as matter of law within meaning of contract for sale of realty entitling vendees to rescind contract and have deposit refunded if title report showed that vendors did not have merchantable title, where contract granted vendors right to remove objections to title at time of closing deal, even though contract was silent as to existence of mortgage, so that triable issue of fact whether title was merchantable arose upon vendors' counter-affidavits showing that they had made arrangement with holder of mortgage to pay and have it released at or prior to time of closing deal, which trial court could not determine on vendees' motion for summary judgment for amount of deposit.
See Callaghan's Illinois Digest, same topic and section number.
Appeal from the Municipal Court of Chicago; the Hon. EUGENE HOLLAND, Judge, presiding.
Judgment reversed and cause remanded with directions. Heard in the second division, first district, this court at the February term, 1947.
Frank P. Cowing, for appellants;
George P. Novak, of counsel;
No appearance for appellees.
Not to be published in full. Opinion filed May 20, 1947; released for publication June 9, 1947.