Gen. No. 21,550.
(Not to he reported in full.)
Error to the Municipal Court of Chicago; the Hon. John C. Work, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
Reversed with finding of facts.
Opinion filed November 14, 1916.
Statement of the Case.
Action by Alex Friend, trading as Alex Friend & Company, plaintiff, against Henry Melvin Mahin and Ella Louise Mahin, defendants, in the Municipal Court of Chicago, to recover a broker’s commission. To reverse a judgment for plaintiff for two hundred and twenty dollars and costs, defendants prosecute this writ of error.
Plaintiff procured one Tibbies to contract with de-’ fendants for the purchase of defendants’ real estate, the contract agreeing to furnish a complete merchantable abstract of title, and to convey a good and mer*41charitable title. Finding that the building on the land encroached on adjoining land, Tibbies refused to perform, and the contract was canceled by mutual consent. There was evidence that the encroachment had existed continuously for twenty-four years. There was also evidence that plaintiff, as trustee, had sold the property to defendants, and that a survey was made by plaintiff, showing the encroachment, of which he informed defendants.
Bentley, Burling & Swan, for plaintiffs in error; Willard Brooks, of counsel.
Harry C. Levinson, for defendant in error; Leo W. Hoffman, of counsel.
Abstract of the Decision.
1. Appeal and error, § 1772 * —whan joint judgment must be reversed. If a joint judgment is erroneous as to one of the defendants it must be reversed as to the other.
2. Appeal and error, § 1041*—how assignments of error to be considered where judgment is joint. On writ of error to reverse a joint judgment, the assignments of error are to be considered as joint and several, or joint or several, according to the nature of the error assigned, and as affecting the respective plaintiffs in error.
3. Brokers, § 88*—when evidence shows broker chargeable with knowledge of encroachment. In an action to recover a broker’s commission, where the purchaser secured for defendant by plaintiff declined to carry out the contract because he learned that the building on the land sold encroached on adjoining land, evidence held to sustain the finding of the court trying the case without a jury that plaintiff was chargeable with knowledge of the encroachment before he procured such purchaser.
4. Vendor and purchaser, § 138*—when purchaser not bound to accept title. Where a contract to sell land covenants to convey a *42good and merchantable title thereto, the purchaser is not hound to perform where the title to part of the land rests merely on adverse possession.
*41Mr. Justice McG-oorty
delivered the opinion of the court.
*425. Bbokbbs, § 46 * —when "broker not entitled to recover. A broker held not entitled to recover a commission where he did not present to the owner a purchaser who entered into a valid, binding and enforceable contract.