Fowler v. Fowler
68 N.E. 414
Ill.
1903
Check Treatment
Mr. Justice Magruder

delivered the opinion of the court:

First—The first ground, upon which appellee seeks to sustain the decree of the lower court, is that the amendments to the second amended bill were not sworn to. It is said that, inasmuch as the second amended bill was sworn to, the amendments to it should also have been sworn to. The fact, that a bill is verified by affidavit, does not necessarily deprive the complainant of the benefit of an amendment. Amendments to bills in chancery are allowed with great liberality in furtherance of justice until the proofs are closed when the bill is not under oath, but greater caution is exercised in regard to amendments to bills where they are sworn to. A complainant is undoubtedly estopped from so amending his bill as to contradict facts, which he has sworn to as positively true, unless he can clearly show the court that the statement was made in mistake. But when an amendment only enlarges and amplifies a statement in the bill, it may be made without being sworn to. (Marble v. Bonhotel, 35 Ill. 240; Gregg v. Brower, 67 id. 525; Booth v. Wiley, 102 id. 84). Of such a character were the amendments here made. Appellee demurred to the amendments to the second amended bill, as well as to the second amended bill itself, and she thereby admitted all the statements therein to be true. This being so, it makes no difference whether an affidavit was attached to the amendments to the second amended bill or not. There can be no necessity for a verification of the facts by oath when such facts are admitted by the adverse party upon the record. By the demurrer, appellee waived her objections to the second amended bill and' its amendments in. this respect. (Keach v. Hamilton, 84 Ill. App. 413).

. Appellee is also estopped from claiming that the additional letters, attached as exhibits to the amendments, were not made a part of the amended bill, because the demurrer is a demurrer to the second amended bill and the amendments thereto, thereby admitting that the letters attached are included in the amendments to the bill.

Second—It is claimed by appellee that the second amended bill, either with or without the amendments thereto, does not show an agreement which is complete, certain, fair and just in all its parts, so as to entitle appellant to a specific performance of the alleged contract. (Tryce v. Dittus, 199 Ill. 189). Under this head it is said that the letter of September 26, 1901, refers to “Edna” without stating what Edna is meant. The very next letter, dated September 30, 1901, in which the proposition, contained in the letter of September 26, is accepted, states as follows: “Your proposition is accepted by Miss Edna Fowler.” A prior letter of September 16,1901, written to Charles H. Fowler refers.to a consultation “with your daughter, Miss Edna Fowler.” This, and other parts of the correspondence, clearly indicate that the Edna referred to is the appellant. In the letter of September 26,1901, C. H. Fowler expresses his willingness “to assign over to Edna my interest in my mother’s estate (the Chicago real estate) at $4500.00.” It is said that the words, “my mother’s estate,” make the description of the real estate uncertain and indefinite upon the alleged ground that “there is no such governmental subdivision of real estate as ‘my mother’s estate.’” (Glos v. Wilson, 198 Ill. 44). The reference to C. H. Fowler’s interest in his mother’s estate, taken in connection with other letters which will be hereafter referred to, makes the description of the real estate sufficiently certain and definite. It is said, also, that the propositions of C. H. Fowler, as embodied in his letters, were coupled with conditions. One of these conditions was, that his assignment of his interest in his mother’s estate and of his equity in the elevator property should be to his father, Bernard Fowler, for the benefit of his daughter, Edna I. Fowler. Subsequent letters, however, show that he did not insist upon having the conveyance made to his father in trust for his daughter, because he says in one letter that he will assign his interest directly to Edna herself, and in another letter he tells her attorney to make out a warranty deed for the undivided one-sixth interest owned by him in his mother’s estate directly to his daughter, Edna. The complaiqt is furthermore made that, in the letter of September 26, 1901, addressed by Fowler to Underwood, the value of his interest in his mother’s Chicago real estate is placed at $4500.00, and in the elevator property at $3500.00, subject to a certain lien, making $8000.00 in all, but that nothing is therein stated about the price being credited upon the indebtedness claimed by appellant to be due to her from her father, and that, therefore, the presumption is that the price was to be paid in cash, and not in property.

It appears, however, from the letter of September SO, 1901, written by A. W. Underwood to Charles H. Fowler, that the following statement is made: “Miss Fowler will take the property at the price named by you, to-wit, $8000.00, on account of the indebtedness, which exists between yourself and her.” The second amended bill, and the amendments thereto, allege this indebtedness to be $15,000.00, or, as reduced by the application thereto of $3500.00, the agreed valuation of the elevator property,to be $11,500.00, and this allegation as to the amount of the indebtedness is admitted to be true by the demurrer.

It appears from the allegations of the bill, and the letters thereto attached, that Charles H. Fowler owed his daughter, the appellant, $15,000.00 for money, which he had obtained from the sale of her property and failed to turn over to her. In part settlement of this indebtedness, he agreed to turn over his interest in certain elevator property at Hayford, and the one-sixth interest in his mother’s estate, consisting of land on Lake avenue in Chicago, to the appellant. The negotiations between appellant’s attorney and Charles H. Fowler ended in a contract, as shown by the letters, whereby he was to repay his indebtedness to the extent of $8000.00 by turning over his interest in the above mentioned property. His interest in the elevator property was actually transferred and assigned to his daughter, and he was given credit therefor to the extent of $3500.00 upon his indebtedness, thereby reducing it to $11,500.00. We think the letters show an agreement upon his part to transfer to his daughter his one-sixth interest in his mother’s real estate in Chicago in payment of an additional $4500.00 of his indebtedness, and to convey said interest to his daughter by a warranty deed. This deed, according to the allegations of the bill which' were admitted to be true by the demurrer, was actually drawn up and sent to him to be executed, but he refused to do so. Instead of conveying his interest in his mother’s estate to his daughter in accordance with the agreement, he conveyed the same to his sister, Harriet Fowler, although being insolvent at the time, and took back from her $1000.00 in cash and $3500.00 in notes, signed by her and by his father, Bernard Fowler, and payable to his own order. The bill alleges, and the allegation is admitted by the demurrer to be true, that, when Harriet Fowler took this conveyance from her brother, Charles H. Fowler, she knew of the previous agreement he had made with his daughter to transfer the property to the latter. It is also alleged and admitted by the demurrer to be' true, that the transfer to Harriet Fowler was a fraud as against Edna Fowler, and was made for the purpose of depriving her of the property, which her father had agreed to convey to her. This bill is for the purpose of compelling the specific performance of the contract, by which Charles H. Fowler agreed to convey his interest in his mother’s estate to his daughter in consideration of receiving a credit of $4500.00 upon his indebtedness to her. We are unable to see why the appellant was not entitled to the relief prayed in her bill, and will only notice some of the main reasons why appellee urges that the trial court correctly sustained the demurrer to the bill.

Third—It is true that an application for the specific performance of a contract is addressed to the sound legal discretion of the court, and that, even where a legal contract is shown to exist, it will not be decreed as a matter of course. (Bowman v. Cunningham, 78 Ill. 48; Tryce v. Dittus, 199 id. 189). But the discretion of the court in such cases must be exercised according to settled principles of equity, and not arbitrarily. (Barrett v. Geisinger, 179 Ill. 240). A court of equity will, as a matter of course, grant the specific performance of a contract for the conveyance of land wThere it is valid at law, fairly entered into, and unobjectionable in any of its features, which address themselves to the judicial discretion of the chancellor. In such case, a court of equity is equally bound with a court of law to grant the appropriate relief when properly applied to for that purpose. (McClure v. Otrich, 118 Ill. 320; 3 Pomeroy’s Eq. Jur. sec. 1405). In his work on Equity Jurisprudence, Pomeroy says, (sec. 1404): “The granting the equitable remedy is, in the language ordinarily used, a matter of discretion, not of an arbitrary capricious discretion, but of a sound judicial discretion, controlled by established principles of equity, and exercised upon a consideration of all the circumstances of each particular case.”

It is well settled that, where the description of the property in a contract for the sale of real estate is uncertain, the contract will not be specifically enforced. (Glos v. Wilson, 198 Ill. 44; Hamilton v. Harvey, 121 id. 469). Where land is the subject matter of such a contract, it should be so described as to leave no uncertainty as to its quantity, shape and location. But a written contract for the conveyance of land is not void for uncertainty in the description of the land sold or conveyed, if from the words employed the description can be made certain by extrinsic evidence of facts, physical conditions, measurements or monuments referred to in the deed. (Hayes v. O’Briev, 149 Ill. 403). In Hamilton v. Harvey, supra, it appears that a contract, mentioned in a case therein referred to, described certain tracts of land as all the land a party “owned and held contracts for in the township of Harrington;” and it was held that this description was sufficiently certain, it being there said: “The maxim is, id cerium est quod certum reddipotest. It can be shown with certainty what lands he owned or held contracts for in these boundaries.”

In the case at bar, we think that the letters introduced in evidence show a sufficient description of the land intended to be conveyed. In the letter of .September 13, 1901, Charles II. Fowler says: “I would assign my interest in my mother’s estate and my equity in the elevator property.” In the letter of September 26, 1901, he says: “I am willing to assign over to Edna my interest in my mother’s estate (the Chicago real estate) at $4500.00. The elevator, $3500.00, subject to Sid well’s lien, in all $8000.00. * * * If this is satisfactory I am ready to assign any time.” In the letter of September 30, 1901, appellant’s attorney says: “I beg to say that your proposition is accepted by Miss Edna Fowler, upon condition that she is furnished with instruments, satisfactorily vesting in her the title to the property which you mention. Will you kindly forward to me the legal description of the property, in which you are interested, including both the elevator property and the real estate, which formerly belonged to the estate of your mother, and in which you are now interested? * * * Miss Fowler will take the property at the price named by you, to-wit, §8000.00 on account of the indebtedness which exists between yourself and her.” In the letter of October 7,1901, C. H. Fowler, in answer to the letter asking for a legal description of the property, says to appellant’s attorney: “You can go to the probate records and get numbers of the property, 3622 Lake avenue. I do not know the numbers; it is the second door north, forty feet front, and 4561 Lake avenue. You can make warranty deed to Edna for the undivided one-sixth interest. By going to Mr. Sidwell’s office you can get copy of my contract with him. Also lease, which I assign to Edna. Consideration of the first to be §4500.00; the elevator property §3500.00, Edna assuming the conditions of the contract. * * * You will find the records of the estate of Martha Fowler filed some time about January 1, 1898.” These letters sufficiently described the property, so that it could be identified. The street numbers are given, and the records of the estate, where the property belonging" to the estate is described, are mentioned as the proper source for the ascertainment of the legal description. It is apparent that, from the words employed in these letters, the description can be made certain, so that the contract can not be regarded as void for uncertainty. Moreover, the second amended bill specifically describes certain property, in which a one-sixth interest was owned by Charles H. Fowler as being located in Ellis’ east addition and Kenwood subdivision, giving the numbers of the lots, etc., and alleg'es that such interest in the property so described was the interest in the Chicago real estate acquired by Charles H. Fowler in his deceased mother’s estate; and this allegation is admitted by the demurrer to be true.'

Fourth—It is said by the appellee that there was no consideration for the contract, upon the theory that “a past and executed consideration is not sufficient to sustain a new contract based thereon.” Here, there was not a past and executed consideration, but a present and new consideration, to-wit, an agreement to release a portion of the indebtedness of $15,000.00, to-wit, $8000.00, for the transfer of real estate, which both parties agreed to value at $8000.00. The agreement to release $8000.00 of this indebtedness was clearly a sufficient consideration upon which a contract of this character could be based. Appellee refers to the case of Davidson .v. Burke, 143 Ill. 139, as sustaining the contention that the present contract is without a valid consideration. In that case a creditor sought to release a debtor by payment of one-half of his indebtedness. The debtor was a joint debtor, and was under obligations to pay the full amount. The promise was there held to be nudum pactum, because there was no consideration to support it for the reason that an agreement to pay one-half of an obligation would not form any consideration for a release of the whole, and to release the joint debtor the full amount must necessarily have been paid. The case, however, has no bearing here.

Fifth—It is furthermore contended by the appellee that Arthur W. Underwood, who wrote the letters in behalf of appellant, is not shown to have had any written authority to represent her, or to make any propositions for her. The bill alleges that appellant acted by her attorney, Arthur W. Underwood, and expressly authorized and directed all of his acts and correspondence. This allegation of the bill is admitted to be true by the demurrer. It is true that there is nothing upon the face of the bill to show whether Underwood was authorized in writing, or not. But it will not be presumed that his authority was a mere verbal one, and within the Statute of Frauds, because the bill does not allege that his authority was in writing. “The benefit of the Statute of Frauds, as a defense, can be taken by demurrer only when it affirmatively appears from the bill that the agreement relied upon is not evidenced by a writing duly signed.” (Hamilton v. Downer, 152 Ill. 651). Inasmuch as it does not affirmatively appear from the bill in this case, that the authority of Underwood is not evidenced by a writing duly signed, • the Statute of Frauds cannot be used as a defense by demurrer. (See also Speyer v. Desjardins, 144 Ill. 641). The person, charged in the contract for the sale of the land was Charles H. Fowler. If he had sought to act through an agent, such agent would be required to show written authority. But, in the present case, Underwood, acting in behalf of appellant, was merely negotiating a settlement, and his principal was not the party charged in the contract to transfer the land. In other words, the contract for sale of land need only be signed by the party to be charged, which party in this case was Charles H. Fowler, and not Edna I. Fowler. If Edna I. Fowler had accepted orally the written proposition of Charles H. Fowler to transfer the land to her as a credit upon his indebtedness, it would be sufficient to satisfy the Statute of Frauds. (Farwell v. Lowther, 18 Ill. 252; Esmay v. Gorton, 18 id. 483; McConnell v. Brillhart, 17 id. 354).

Sixth—The main ground, however, upon which the appellee seeks to sustain the decree of the court below, is the alleged ground that the court was without jurisdiction to grant the relief prayed for. The contention upon this branch of the case is, that, in order to decree the specific performance of a contract, a court of equity must have personal jurisdiction of the party, who signed the contract, and against whom performance is sought to be enforced. In other words, the position, taken by counsel, is that the proceeding for specific performance of a contract is an action in personam, and not in rem. We deem it unnecessary, for the purposes of this decision, to discuss the question whether such a proceeding as the present one is a proceeding in rem, or a proceeding in personam, or a proceeding partly in rem and partly in personam.

Charles H. Fowler is a non-resident of Illinois, and was not personally served, but was only brought in by publication, and we are inclined to think that a decree could not be entered against him for the specific performance of the contract here under consideration. (Hayes v. O'Brien, 149 Ill. 403; Johnson v. Gibson, 116 id. 294; Cloud v. Greasley, 125 id. 313). In the case at bar, however, the title to this property is in Harriet Fowler. The bill alleges that Charles H. Fowler, in violation of the contract with his daug'hter, transferred the property to his sister, Harriet Fowler, and that she had full knowledge of the contract between him and appellant, and was not a bona fide purchaser. One part of the prayer of the second amended bill is as follows: “That the title held by said Harriet Fowler may be decreed to be held by her as a trustee for your oratrix, and that she be decreed to release the same to your oratrix.” Harriet Fowler was a necessary party to the bill. She is a resident of Cook county, and the land in controversy is located in Cook county. The.court has before it the party, who holds the legal title, and can order the transfer of that title by the party, so holding it, to appellant for whom, in equity, it is held in trust.

In Story’s Equity Jurisprudence (vol. 1,-—12th ed.— sec. 784) it is said: “If a person has in writing contracted to sell land, and afterwards refuses to perform his contract, and then sells the land to a purchaser with notice of the contract, the latter will be compelled to perform the contract of his vendor, for he stands upon the same equity; and although he is not personally liable on the contract, yet he will be decreed to convey the land in the same manner as his vendor; in other words, he is treated as a trustee of the first vendee.” In section 789 of the same book, it is further said: “The general principle, upon which this doctrine proceeds, is, that from the time of the contract for the sale of the land the vendor, as to the land, becomes a trustee for the vendee, and the vendee, as to the purchase money, a trustee for the vendor, who has a lien upon the land therefor. And every subsequent purchaser from either, with notice, becomes subject to the same equities, as the party would be, from whom he purchased.” Here, Charles H. Fowler contracted in writing to sell this land to the appellant, and afterwards refused to perform his contract, and conveyed the land to his sister, Harriet Powler, who had notice of the contract. It follows, that Harriet Fowler can be compelled to perform the contract of her vendor, for she stands upon the same equity as her vendor, Charles H. Powler. Although she is not personally liable on the contract, she will be decreed to convey the land in the same manner as Charles H. Fowler would be compelled to convey it.

In Pomeroy on Specific Performance (sec. 465) it is said: “When the vendor, after entering into a contract of sale, conveys the land to a third person, who has knowledge or notice of the prior agreement, or who does not part with a pecuniary consideration, or who for any other reason is not a dona fide purchaser, such grantee takes the land impressed with the trust in favor of the original vendee, and holds it as trustee for such vendee, and can be compelled at the suit of the vendee to specifically perform the agreement by conveying the land in the same manner and to the same extent, as the vendor would have been liable to do had he not transferred the legal title; and such grantee is the proper defendant in the suit against whom to demand the remedy of a conveyance.” The doctrine, thus announced by the' learned author, fits preicsely the facts of this case; and Harriet Fowler, the present appellee, is the proper defendant, against whom the remedy of a conveyance may be enforced.

In Bryant v. Booze, 55 Ga. 488, it is held, in substance, that, where a contract for the sale of real estate is made, and subsequently the vendor conveys to a third party, said third party knowing of the prior contract, such third party takes the land impressed with the trust in favor of the original vendee, and holds it as trustee for such vendee, and can be compelled, at the suit of the vendor, to specifically perform in the same manner and to the same extent as the vendor.

We do not concur in the contention of counsel that the court below was without jurisdiction to decree a specific performance against appellee, Harriet Fowler, even though it was without jurisdiction to enforce the decree ag'ainst Charles H. Fowler, who was not personally served with process.

For the reasons above stated, we are of the opinion that the court below erred in sustaining the demurrer to the second amended bill, as amended, and in dismissing the bill. Accordingly, the decree of the circuit court is reversed, and the cause is remanded to that court for further proceedings in accordance with the views herein expressed.

Reversed and remanded.