| Ill. | Oct 24, 1898
delivered the opinion of the court:
It is contended by appellant the facts presented by this record, and the law applicable thereto, are sufficient to authorize a decree in his favor, and that the decree in the circuit court dismissing his bill should be reversed. Specific performance is an equitable remedy, which compels the performance of a contract in the precise terms agreed upon, or such a substantial performance as will do justice between the parties under the circumstances of the case. Inflexible rules' cannot be laid down for the exercise of the power of a court of equity to grant specific performance of a contract. While it is true it is never to be demanded as a matter of absolute right, and the granting or denial of the relief sought rests in the sound judicial discretion of the court, yet where all the necessary elements, conditions and incidents are present, relief by way of specific performance should be granted as a matter of right, and not as a mere matter of favor. (Day v. Hunt, 112 N.Y. 191" date_filed="1889-01-15" court="NY" case_name="Day v. . Hunt">112 N. Y. 191; Hays v. Nourse, 114 id. 595; Jones v. Newhall, 115 Mass. 244" date_filed="1874-06-20" court="Mass." case_name="Jones v. Newhall">115 Mass. 244; Chambers v. Livermore, 15 Mich. 381" date_filed="1867-05-14" court="Mich." case_name="Chambers v. Livermore">15 Mich. 381; Pomeroy’s Eq. Jur. sec. 1404; 22 Am. & Eng. Ency. of Law, 911, 912.) By the contract executed voluntarily by the parties to this suit, appellant is, under the rule above stated, entitled to a decree for specific performance, unless appellee has shown some valid and sufficient reason why such contract on her part should not be performed.
It is first urged the description of the premises owned by appellant, of which a deed was tendered to appellee and afterwards brought into court, varies from the description in the contract. This is true; but is it a material legal variance, to an extent that should permit the avoidance of this contract? The evidence clearly shows there is but one block numbered 75 in the city of Highland Park. It is further shown that there is no vacated block bearing the number 75. It is also shown the parties had in mind, at the time of the execution of the contract, the identical property to which a deed has been tendered by appellant; that appellee made a personal examination of such property, and is by such change of description in nowise being injured, defrauded or deceived. Thus there is no difficulty in determining, from all the evidence, what particular property the contract refers to. It was not error to admit parol evidence to explain the latent ambiguity existing between the two descriptions. In Lyman v. Gedney, 114 Ill. 388" date_filed="1885-06-13" court="Ill." case_name="Lyman v. Gedney">114 Ill. 388, which was a bill for specific performance, and in which a misdescription had occurred in the contract, this court said (p. 410): “Without affirming or denying what may be the law in a case where rectification and specific performance rest entirely on parol evidence, there can be no question but that latent ambiguities may be explained by parol evidence, and that such evidence may also be resorted to for the purpose of identifying the premises and applying the calls of the deed in suits for rectification and specific performance, and in other actions and proceedings affecting title,”—citing Cossitt v. Hobbs, 56 Ill. 231" date_filed="1870-09-15" court="Ill." case_name="Cossitt v. Hobbs">56 Ill. 231, and McLennan v. Johnston, 60 id. 308. The same rule as to the admission of parol evidence to explain a latent ambiguity was followed by this court in Chicago Dock and Canal Co. v. Kinzie, 93 Ill. 415" date_filed="1879-09-15" court="Ill." case_name="Chicago Dock & Canal Co. v. Kinzie">93 Ill. 415. In Hurley v. Brown, 98 Mass. 545" date_filed="1868-01-15" court="Mass." case_name="Hurley v. Brown">98 Mass. 545, which was a bill for specific performance, the legal effect of the contract was to convey “a house and lot of land situated on Amity street, Lynn, Massachusetts,” and the question was raised whether such description was void for uncertainty. The court held that parol evidence was admissible to show the proper description of the property intended by the contract to be conveyed.
There can be no doubt in this case the parties contracted with reference to the particular property described in appellant’s deed, and the contract was not void by reason of any wrong description.
It is also contended by appellee that a construction of that part of the contract which provides, “each party to furnish the other a complete and merchantable abstract of title for said respective lots, broug'ht down to date, same to be furnished within ten days of this date, and said deeds to be delivered within three days after said respective titles are found to be good,” would mean such title should be found to be good, from the abstract, within the time stipulated in the contract. In other words, it is contended the title must be absolutely good within three" days, and if any question should arise regarding it, the court, on bill for specific performance, should not find the title to appellant’s lot good and decree specific performance, on account of the time under the contract having expired by limitation. This position is not tenable. Courts know, and recognize as part of the general transaction pertaining to the sale and exchange of real estate, that an abstract of title shows nothing more than an abbreviated transcript of the records pertaining to such property, be the same perfect or faulty. A fair construction of this contract is, that abstracts were to be furnished within ten days, and if b.y the abstracts the titles were not found to be good, they should be perfected within a reasonable time and the deeds exchanged within three days after such titles were found to be good. It is not necessary that the vendor possess a perfect title at the time the contract is entered into. It is sufficient that he makes the contract in good faith, and will be able to convey by the time a decree of specific performance is rendered. (22 Am. & Eng. Ency. of Law, 960, and cases cited.) In many cases where abstracts are furnished and submitted to an attorney or examiner of titles, many defects, either of greater or minor importance, are pointed out, which it often takes a number of weeks to rectify, by quit-claim deeds, affidavits or otherwise, and it must be presumed, in a contract such as the one entered into in this case, opportunity was to be given to both parties to make good their respective titles within a reasonable time. In this case it appears appellant, immediately he ascertained the objections of appellee’s attorney to his title, took steps to remedy it, as far as was possible. A trust deed dated in 1875 appeared not satisfied of record. On March 21 he obtained a release deed to satisfy this. The attorney for appellee who examined the abstract also noted the property to have been conveyed by the United States to John McCready and subsequently conveyed by John McOread, but, to rectify this, appellant produced" the original deed showing the conveyance to have been by McOready, the former grantee. Another deed described the property as “the south-east forty of the north-east quarter,” etc. There was no latent ambiguity in this expression, its common acceptation and meaning being well understood. Extrinsic evidence was admitted to show that about the date of this deed (1847) it was a common form of expression to say “a forty” or “an eighty,” etc., to indicate a forty acres or an eighty acres, and therefore an abstract which read “a south-east forty” would readily be construed to mean the south-east forty acres. There was no error in permitting the fact to be thus established, nor do we regard it a defect. Other supposed defects suggested by the examiner of the abstract are not argued by appellee, and therefore need not be noted by this court.
A number of attorneys and examiners of real estate titles were offered by appellee to show the title to appellant’s property was defective. This was improper. The sufficiency of any title to real estate property is a question of law, and not of fact to be proven by the opinions of witnesses. Where, on a bill for specific performance, the defendant alleges defective title to plaintiff’s property, it is a question for the trial court, upon a hearing, to determine from the terms of the contract, and also as a question of law, whether such title is sufficient.
It is urged also by appellee that there was a waiver and abandonment of this contract by appellant. Late in March, 1895, appellee refused to comply with her contract. On May 8 appellant addressed her a line requesting the privilege of talking with her on business matters, and on May 9 wrote her stating that he wished to see her about the purchase of a lot, etc. About that time he had a short personal interview with her, and in the course of the conversation he spoke about a great many pieces of real estate and prices, and said if he had bought the particular property as he supposed he had, he would put an alley through it, whereupon appellee replied she held this property (being the property mentioned in the contract) at $100 per foot. Appellant thereupon said that it was useless to talk further regarding it, and went away. There is no sufficient evidence in the record of an abandonment or waiver of the contract. Where an abandonment or waiver is relied upon, it must be shown to have been the clear intention of the parties to abandon the contract previously entered into. (Mix v. White, 36 Ill. 484" date_filed="1865-01-15" court="Ill." case_name="Mix v. White">36 Ill. 484.) Courts will indulg'e no presumptions in favor of a waiver, of a contract where specific performance is attempted to be enforced, nor will it infer waiver or abandonment upon slight proof. (22 Am. & Eng. Ency. of Law, 1062.) A parol waiver or discharge of a written contract must be clear and explicit, and be proved beyond a doubt. Huffman v. Hunner, 18 N. J. Eq. 83.
Appellee, in her evidence in the trial court, dwelt upon the fact that appellant’s property is not worth as much as he represented it to be, and that she relied upon his representations. This would not be a good defense. Mere matters of opinion, or expression of an opinion, by the owner of property as to its value, standing alone, will not be held to be a misrepresentation. Brady v. Cole, 164 Ill. 116" date_filed="1896-11-23" court="Ill." case_name="Brady v. Cole">164 Ill. 116.
Taking the record as a whole, it appears the contract for the exchange of these properties was fairly entered into between these parties, and was free and clear from any taint of fraud; that appellant has complied with all the terms and conditions imposed by this contract upon him in respect to the furnishing of a merchantable abstract of title to his property and in other respects mentioned in the contract. There appears no sufficient legal reason why he should have been denied the relief asked for in his bill for specific performance in this case.
The decree of the circuit court of Lake county dismissing appellant’s bill is reversed and the cause remanded to that court, with directions to enter a decree granting to appellant the relief asked for in his bill in conformity with the views herein expressed.
Reversed and remanded.