D'Wolf v. Pratt (42 Ill. 198, 1866)

Mr. Justice Breese

delivered the opinion of the Court:

The facts presented in this record are substantially these; Calvin D’Wolf was in December, 1849, seized in fee by purchase and deed from Stephen Bronson, Jr., of the fifteen acres of land described in the bill of complaint of plaintiff in error: that, to secure the purchase money, on the 15th of June, 1850, he executed a deed of trust to J ames H. Collins, conveying all his interest therein to Collins, with authority to sell the land, in default of payment of the purchase money. Default having been made in the payment, on the llth of March, 1852, Collins, as trustee, sold this land to one Denniston, and executed a deed which was duly recorded.

On the 18th of May, 1852, Denniston, by quitclaim deed of that date, sold and conveyed the land, together with other lands, to Amos Pratt, which deed was duly recorded. On the 26th of September, 1852, Calvin D’Wolf, by deed of that date, quit-claimed and released to Pratt, all his interest in this tract, and Pratt became on that day seized in fee of the same. Two days thereafter, to wit, on the 28th of September, 1852, Pratt negotiated a sale of this tract, together with other lands, to plaintiff in error, Clement H. D’Wolf, which is evidenced by the articles of agreement made an exhibit in the bill of complaint, and recorded October 28,1852. The sale was on credit, except a payment in hand of one hundred dollars by plaintiff in error, and the other payments were distributed over six years, the last falling due on the 28th of September, 1858. Complainant was put in possession of the lands, and claims to have so remained ever since, and to have paid the taxes on them.

On the 15th of January, 1853, the plaintiff in error entered into an agreement with Horatio 0. Stone, by which he covenanted to convey to Stone this fifteen acres of land in fee simple, free and clear of all incumbrances, on the payment by Stone of four thousand two hundred and twenty-five dollars ; the fractionable portion ($225) being paid in hand, and the remaining payments, the same in amount as those due from plaintiff in error to Pratt, were distributed over the same years, and the last payment from Stone fell due on the same day the last payment was due from plaintiff in error to Pratt, viz., September 28, 1858, with authority to Stone to make the payments to Pratt upon plaintiff’s contract with Pratt. Stone paid for plaintiff on this contract to Pratt, the $600 due September 28, 1853. This agreement, in referring to the contract with Pratt, recites that this contract, dated September 28,1852, was recorded in the recorder’s office of Cook county, in book Ho. 54 of deeds, page 115. The agreement between Stone and. plaintiff was duly recorded in the recorder’s office.

On the 23d of September, 1853, Amos Pratt entered into an agreement with one W arren Parker, wherein Parker agreed to sell to Pratt certain lands for the sum of eight thousand dollars, in three equal annual payments, and, on Pratt’s making the payments, he was to receive a deed from Parker; Pratt, also, in order to secure the first payment due to Parker, on the same day indorsed upon his agreement with plaintiff’ in error, a transfer and assignment thereof, to Parker, which was duly acknowledged and recorded. This agreement was in duplicate.

These two agreements, the one between Pratt and Parker, and the other between plaintiff and Pratt, with Pratt’s assignment thereon to Parker, were, on the same day, deposited with Messrs. Brown and Hurd, in pursuance of an agreement between Pratt and Parker, substantially as follows: That Brown and Hurd should hold these papers until the tenth of October next ensuing, and, in case Pratt paid Parker on that day the sum of two thousand six hundred and sixty-six dollars and sixty-six cents, being the first payment due from him to Parker, and the interest thereon, then Brown and Hurd should deliver a duplicate of these agreements, and the contract between him, Pratt, and plaintiff in error, with the assignment thereon, back to Pratt, but that, in default of such payment, Brown and Hurd should deliver all the papers up to Parker, and he should have the right to sell, at public sale, the agreement between Pratt and plaintiff in error, and to pay himself one thousand dollars as liquidated damages for the non-performance of the covenants by Pratt with Parker. Default was made by Pratt, and thereupon, Brown and Hurd, though notified by Pratt not to do so, delivered up the papers to Parker, who proceeded to sell, at public sale, this agreement between Pratt and plaintiff in error, and the assignment thereon, and on the 28th of January, 1854, after due notice of the sale, sold the same to Stone, as the highest bidder, for the sum of one thousand dollars, which was then and there paid by Stone to Parker, who thereupon executed and delivered to Stone a deed thereof, and of the lands . described in the agreement, reciting all the above facts, which deed was duly acknowledged and recorded, upon which, Stone claimed to be the absolute owner in fee of all the right, title and interest of Pratt to these articles of agreement, and to the lands described therein.

After Stone’s purchase from plaintiff in error of the 15 acre tract, he entered into possession of it, and claims that he has ever since retained the possession. Soon after the purchase of this agreement of complainant and Pratt, by Stone, at the public sale, on the 4th of February, 1854, Stone owing plaintiff in error as much money for the 15 acre tract as plaintiff owed Pratt under their agreement, plaintiff, recognizing Stone as the owner of the agreement with Pratt, made a deed in fee to Stone, which was duly recorded, of the 15 acres, and Stone, in consideration thereof, released and discharged plaintiff in error from all his covenants in that agreement, thus setting off and cancelling their respective liabilities.

On the 7th of October, 1853, Amos Pratt, for the expressed consideration of three thousand dollars, conveyed by quitclaim deed this fifteen acre tract to his brother, Jeremiah Pratt, who, on the eleventh day of that month, caused this deed to be recorded, and claims the title, disclaiming all knowledge of these agreements, and insisting as his deed was on record before the assignment by Pratt to Parker, and by Parker to Stone of these agreements, that his right is the better right.

It appears, that Stone, on concluding this arrangement with plaintiff, took immediate possession of these fifteen acres, had it surveyed, platted and ma¡Dped, and the plat recorded, and streets graded, drained, and part fenced, and sold some of the lots, and paid all the taxes assessed against the land, except those on the lots he sold to the purchasers named in the bill of complaint. These purchasers took immediate possession, and several of them have built upon the lots so bought. As early as 1858, four or five dwelling houses were built on them, and occupied; up to that time Stone had sold two-thirds of the lots, and since, all have been sold, except about twenty or thirty lots. Warren Parker died in the fall of 1854. Stone, in tiro fall of 1853, was a man of means, and wealthy, and has con-. tinned responsible. The lot on Madison street, mentioned in the bill of complaint, has; since September 28, 1852, been in the possession of plaintiff in error, and of those claiming under him. For many years before filing this bill, Amos Pratt was a resident of the State of California. On the 1st day of December, 1858, plaintiff conveyed, by warranty deed, the west half of original lot 7, in block 57, in the original town of Chicago, it being the same as lot 3, and west half of lot 2, in the canal trustees’ subdivision of that lot, to Joseph E. Brown.

H. W. Clarke, who took the acknowledgment of the deed from Amos Pratt to Jeremiah Pratt, thinks Jeremiah was not then present. Stone purchased the agreement assigned to Parker by Pratt, under the advice of Van H. Higgins, an eminent lawyer of Chicago, who told Stone he might, for his own protection, become a bidder at the sale, and that the purchase by him would be a legal and equitable transaction on his part. Amos Pratt never made the payments to Parker which he had covenanted to make. His assignment to Parker was as follows:

“ For value received, I, Amos Pratt, do hereby assign, transfer and deliver, unto Warren Parker, his heirs and assigns, forever, all my right, title, interest and claim, in and to the within contract, and the moneys due, or to become due, thereon; also, all my right, title and interest, in and to the lands and tenements in said contract described. I do hereby grant and convey unto the said Warren Parker, his heirs and assigns, forever, subject to the covenants in said contract expressed.

“ Witness my hand and seal this 23d day of September, 1853.”

It also appeared, that, after the purchase of this contract of plaintiff’s by Stone, he filed a bill in chancery against Amos and Jeremiah Pratt, setting out these facts, and claiming that he was the owner of this contract, and of right entitled to a deed from Amos Pratt, but he had conveyed his interest in the land to Jeremiah Pratt — claiming that this deed was.frauduleut and made with full notice of the contract between Amos Pratt and plaintiff in error, and of the assignment of the contract by Amos to Parker, and insists, that Jeremiah holds the interest he may have acquired by his deed from Amos, as trustee for him, Stone. That Jeremiah, on application to him for that purpose, refused to convey to him, and he prayed for a decree to compel Amos and Jeremiah to release and quitclaim the fifteen acres to him, and for general relief.

Jeremiah Pratt, in his answer, admitted the title to this land to be in Amos Pratt, and admitted the agreement with plaintiff in error, but alleges, that large sums of money were, by that agreement, to be paid by plaintiff to Amos, that have not been paid, and for that reason the agreement was void; admits that the agreement between Amos Pratt and Warren Parker may have been made, but does not know the particulars; and so with regard to the deposit of the papers with Brown and Hurd, but says that Amos, on account of some defect in the title Parker had agreed to convey him, had notified Parker and Brown and Hurd, that he had rescinded the contract with Parker, and had become entitled to have the papers restored to him; denies the authority to sell, and the regularity of the sale, and that by the sale Stone acquired any right to the agreement, or title to the land; denies the validity of release by Stone to plaintiff; insists that it is too late to claim a specific performance — that the deed from Amos Pratt to him was for the consideration of $3,300 paid in money and property; states, when called on to make a deed, he declined doing so, without full payment of the amount specified in the agreement of plaintiff in error, with Amos Pratt, and that he had, by his deed, become entitled to the benefit of all the covenants therein. He also filed a cross-bill, making Stone and plaintiff in error defendants, and praying that the agreement between plaintiff and Amos Pratt might be delivered up to be canceled and for general relief. The answer to the cross-bill alleges, that the agreement between Amos Pratt and plaintiff in error was filed for record and recorded September 28, 1852, and insists upon his title and claim as set forth in the original bill. Jeremiah Pratt, on the hearing, showed nothing but the deed from Amos to him. The court dismissed the bill, and, on appeal to this court, the decree was affirmed.

This bill of plaintiff in error seeks to set aside this deed to Jeremiah Pratt, and to compel a specific performance of the agreement of September 28, 1852, between plaintiff in error and Amos Pratt, and, to confirm his title to the land described in the bill.

Before passing to the merits of this case, it may be well to say that the case of Stone v. Pratt, 25 Ill. 25, decides only, that, inasmuch as Amos Pratt’s contract was for the conveyance of several distinct tracts of land, and Stone claimed but one of them, the contract could not be split up into pieces, and a specific performance, as to such tract, be decreed. Such a contract will not be enforced in parcels. The plaintiff was no party to that suit, and, in it, the rights of the parties to the suit were never determined.

It is the law of this court that applications for the specific performance of contracts for the sale of land are addressed to the sound legal discretion of the court; and it is not a matter of course that it will be decreed because a legal contract is shown to exist. Frisby v. Ballance, 4 Scam. 287. And, unless a party has rescinded a contract, the other party has a right to enforce its specific performance, unless he has been guilty of laches rendering it inequitable to insist upon its enforcement. Anderson v. White, 27 Ill. 63.

Where such a contract, though verbal, is shown to have been fairly made, on a valuable consideration, the whole or a considerable portion of the purchase money paid, and no unreasonable and vexatious delay in paying the whole, possession taken, and valuable improvements made, and the vendee showing no disposition to evade the contract, and no hardship in it, and no evidence of abandonment by vendee, this court has, in many instances, decreed a specific performance of the contract by compelling the execution of a deed. Glover v. Fisher, 11 Ill. 666; Murphy v. Lockwood, 21 id. 615; Ramsey v. Liston, 25 id. 114. And, unless a party has rescinded a contract, the other party has a right to enforce its specific performance, unless he has been guilty of laches that renders it inequitable to insist upon its enforcement. Anderson v. White, 27 Ill. 63; Blunt v. Tomlin, id. 93. We know of no difference, in this respect, between verbal contracts so far performed, and written contracts.

The facts in this case show that the agreement of September 28,1852, possesses all these required elements, and, though all the purchase money was not paid at the time of filing the bill, there is an offer by complainant in the bill, to pay the balance due, and do and perform whatever shall, by the court, be deemed equitable. The bill also shows that other parties, relying upon this contract, have purchased portions of the land from the complainant and have made valuable improvements thereon, and there is no fact in the case, which would justify this court in saying that plaintiff has not, at all times, desired fully to perform the contract on his part. That he has not done so, may be found in the fact of the purchase of the contract by Stone, and the cancellation of the indebtedness of plaintiff thereon by the arrangement made with Stone.

But it is insisted by appellee, that this sale to Stone, by Parker, was illegal, and vested no interest in the purchaser. It appears from the testimony of Hurd, that an agreement was entered into and signed by Pratt and Parker, when the papers were deposited with him, that, if Pratt did not pay Parker, by the tenth day of October, the sum of $2,666.66, and interest, being the first installment due on Pratt’s purchase from Parker, Brown and Hurd should deliver the papers to Parker, and Parker should have the right to sell Pratt’s interest in the agreement with plaintiff in error, at public auction, and pay himself one thousand dollars as liquidated damages for his, Pratt’s, default in not performing his covenant. Hurd states, that, a short time previous to the tenth of October, and before the papers were delivered to Parker, Pratt came to his office and had a conversation with him about these papers, in which Hurd understood Pratt as notifying him not to deliver them to Parker. Hurd replied, that ha should have to observe the conditions under which the papers were left with his firm, unless prevented by injunction, and that he had no option in the matter, and Hurd advised him to get an injunction if he could. Pratt left with the avowed purpose of obtaining an injunction. In this conversation, Pratt said he should not make the payment to Parker. After this declaration, Hurd delivered the papers to Piivker. Pratt never applied to Hurd for the articles of agreement with Parker. Pratt alleged as a reason why he would not pay Parker, that there was not as much land in the piece of property mentioned in the agreement as there should have been. This conversation was but a day or two before the day of payment to Parker was fixed. It was not, then, on account of any defect of title, that Pratt did not comply with his covenant, but on account of an alleged deficiency in the quantity of the land.

The sale of this agreement was, by express consent of Amos Pratt, to be by public auction, and no judicial sanction was necessary, and it sold at a price we cannot, under the circum stances, regard as so inadequate as to justify us in setting the sale aside for the benefit of Jeremiah Pratt. In looking at the assignment from Amos Pratt to Parker, it will be seen, Pratt not only assigned his “ right, title, interest and claim ” to the contract with plaintiff, but to the money due and to become due thereon, and also all his right, title and interest in and to the lands and tenements described in the contract, were granted and conveyed to Parker, his heirs and assigns forever, subject to the covenants expressed in the contract.

We are at a loss to perceive in what respect this writing is deficient, as operating to divest Amos Pratt of his interest in this contract, money, or the land described in it. They all passed to Parker, and he sold them all to Stone, as he had a right to do under the agreement testified to by Hurd, and at public auction, where the whole community could have been bidders and competitors. If this transaction wants any legal sanction, and we do not think it does, it certainly would be sustained in a court of equity — no fraud, unfair advantage, or improper conduct being shown. While Stone thus became the owner of the contract, plaintiff in error, in good faith, adjusted it with Stone, and, for a valuable consideration, he was released and discharged from his covenants, Stone’s debt to him paying his debt remaining due by the contract.

The notice by Amos Pratt to Hurd, not to deliver the papers to Parker, was of no force, inasmuch as Pratt was but one of the parties to their delivery to Hurd and Brown. It required the assent of Parker before Hurd could be relieved from the conditions under which he had received the papers, and so Pratt was substantially informed, and he was advised, he had better apply for an injunction to restrain Hurd and Brown from delivering the papers to Parker, and Pratt left Hurd’s office with the avowed intention of so doing, but, instead of that, he betook himself to the office of Clarke, a notary public, and there, for the expressed consideration of three thousand dollars, executed a quitclaim deed for the lands to his brother, Jeremiah Pratt, he not being present, and which deed, being promptly put on record by Amos, his brother Jeremiah now sets up to defeat the equities of plaintiff in error, and of those claiming under him, and for whose benefit, as well, this bill is filed.

After this deed was made, Amos Pratt left the State for California, and has- not been in this State since. It is absurd to say, that this agreement between Amos Pratt and Warren Parker conveyed no valid interest to Parker, and that it was a naked power subject to revocation. The reason given for this position is, there is no sufficient evidence of any good or valuable consideration moving from Parker to Pratt. We think the evidence of a sufficient consideration appears in the agreement .between Amos Pratt and Parker and in the covenants to. be - performed by Parker, on the payment of the purchase money for .the Iqnd by Pratt, that he would convey the lands to Pratt. In-Ms conversation with Hurd, he spoke of this agreement, -s-nd objected to paying the money, because, as he alleged, there was a .deficiency in. the land. This was, probably, a mere subterfuge, as there is,po proof of it,, and if the fact was so, he might, notwithstanding,, be compelled to take the land, if the deficiency was-inconsiderable, and, not .impairing, materially, the valpe, of the remainder. Parker , had an interest in these papers of which he could not.be deprived by the mere act of Pratt. ■ They belonged to, -Parker in a certain event, which event occurred. That, Jeremiah’s deed was recorded one day prior to this agreement between Amos Pratt and Parker, by which, JeremMh obtained a priority, this ,