and defend the peaceable possession of the property (the seventh paragraph of the deed in the Etheridge case) which does not appear to be contained in the deed in the instant matter. The second possible exception is the grantors' waiver of claims to rents (the ninth paragraph of the deed in the Etheridge case) which does not appear in the instant deed. However, neither possible exception would seem to be of such significance as to render the case so distinguishable that its relevance to the instant matter would be completely lost. Admittedly, the two variations do tend to give additional support to the conclusion reached by Judge Larkins in the Etheridge case, but their absence would not seem to detract from the validity of his conclusion in holding the deed conveyed an estate of less dignity than a fee simple. So, at the very least, the Etheridge case appears to make the question concerning the construction of the deed substantial, reasonably debatable, and, perhaps, too doubtful to be settled without litigation.
In addition to the observations made in the Etheridge case which this Court feels are generally applicable to the instant case, the Court further observes that the instrument under consideration, in the third paragraph, employs the language, "AND WHEREAS, the said Secretary of the Treasury deems it advisable to acquire * * * the right to use and occupy * * *." This Court feels that such language would not have been employed in the deed if the intention of the parties were to create a fee simple estate; for assuming the authorizing statute of 1875 permits the acquisition of land in fee simple, the language normally employed would not have been so limited or restricted.
In the opinion of the Court a substantial question concerning the plaintiff's title definitely exists. The legal question as to the construction to be placed on the instrument of 1879 by virtue of which the plaintiff acquired title appears, at the very least, to be reasonably debatable. It was raised by a reputable title company, engaged by the defendant, in its report of title and the title company refused to insure a good, marketable title in the absence of either, a determination by a court of competent jurisdiction that the plaintiff's title was one in fee simple, or, deeds from the heirs of the plaintiff's grantor. It was passed upon by the Chief Counsel of the United States Coast Guard in a letter under date of 1947 which indicated the plaintiff had not acquired a marketable title to the property in question. And it was originally brought to the attention of the defendant by one of the heirs of the plaintiff's grantor who claims that his father's estate is the owner of a one-third reversionary interest in the property.
While the question of marketability is a question to be determined by a court of competent jurisdiction and not one to be determined by a title company, legal counsel or an individual, nevertheless, the raising of the question indicates a doubtful status as to title. Furthermore, it bears upon the question of the reasonable probability in exposing the defendant to subsequent litigation if he were to accept the plaintiff's conveyance.
The question concerning the plaintiff's title is sufficiently serious and basic for it affects the ownership of the property in question and goes to the basic instrument by virtue of which the plaintiff asserts title. It presents a reasonable probability of exposing the defendant to subsequent litigation with a substantial basis, either as a defendant to protect his title or as a plaintiff to quiet title, and it engenders a doubt that is reasonable and not "remote, hypothetical or unfounded."
It is clear that if the plaintiff's title is reasonably doubtful this Court may decline to grant specific performance without the necessity of pronouncing the title bad or attempting to determine the precise nature or extent of the title held by the plaintiff under the instrument of 1879. See Dobbs v. Norcross, 24 N.J.Eq. 327, and Tillotson v. Gesner, 33 N.J.Eq. 313, at page 326, wherein it was stated:
"The true rule is stated in 3 Pars. on Con. (6th ed.) *380, that if the character of the title be doubtful, although the court were able to come to the conclusion that, on the whole, a title could be made that would not probably be overthrown, this would not be good title enough; for the court have no right to say that their conclusion, or their opinion, would bind the whole world, and prevent an assault on the title. The purchaser should have a title which shall enable him not only to hold his land, but to hold it in peace; and if he wishes to sell it, to be reasonably sure that no flaw or doubt will come up to disturb its marketable value. The court cannot satisfactorily or conclusively settle a title in the absence of parties who are not before them in the suit to assert their estate or interest in the lands."
Although it is not incumbent upon the Court to proceed further on this question of construction of the deed for a determination of the issue at hand, the Court is constrained to state that if all of the parties in interest were before the Court so that the issue of the construction might be settled, the Court would be inclined to hold that the plaintiff did not acquire a title in fee simple absolute and that the property did revert to the heirs of the plaintiff's grantor upon the abandoned use of the property as a life-saving station.
In light of the foregoing, the Court concludes that the defendant cannot be compelled to specifically perform the contract of sale, so that the relief requested by the plaintiff is hereby denied. And inasmuch as this Court has determined that the title of the plaintiff is not marketable, then the Court must order the return of the defendant's deposit of $2,160.00 without interest or costs in accordance with the contract of sale, and permit the defendant to rescind his contract.
Counsel will prepare an appropriate order in conformity with this opinion.