15 Ill. 127 | Ill. | 1853
This was a bill in the nature of a bill for a specific performance of a contract for the sale of land, and shows that Holloway had contracted with Browning for the purchase of the premises in question for three hundred dollars; that he took possession and made improvements thereon; that judgments were obtained against Holloway, an execution issued and levied on the land, which was sold, and Hatch became the purchaser for himself and the other complainants; that after this, Holloway died, leaving the widow in possession. The bill states, that during Holloway’s lifetime, he paid Browning considerable amounts of money upon said agreement; and that at the time of Holloway’s death there was due to Browning on said agreement about the sum of two hundred and fifty dollars, as near as the complainants can ascertain. The bill then shows, that the widow of Holloway' made payments to Browning out of funds belonging to Holloway’s estate, and that subsequently the defendant Wagner made an agreement, by which he became the purchaser of said land from said Browning, and from the widow and heirs of Holloway; that he computed the payments on said land under said agreement, and took from Browning a quitclaim deed for the land. The bill prays that Wagner may convey to the complainants, and they offer to pay to him or bring into court whatever sum the court may direct, and for general relief.
Admitting that the purchaser of land at a sheriff’s sale upon .an execution, in which the defendant in the execution had but an equitable interest, succeeds to all the equitable rights, and is entitled to all the equitable remedies to which the debtor was entitled, I still think that the demurrer to this amended bill was properly sustained. The bill should show that at the time of the levy and sale, the debtor had such an equitable title as could have been enforced against Browning. No subsequent act of indulgence or favor by Browning towards the debtor or his representatives, can inure to the benefit of the purchaser under the execution. The bill should show a positive and affirmative right in the debtor at that time, to enforce the contract of purchase against Browning. Most manifestly such a case is not shown by this bill. Had Holloway, at the time of this sale, filed a bill against Browning to enforce a specific performance of this contract-, and had stated no .more than is here shown to have then existed, we could not say that enough was shown to entitle Holloway to compel Browning to convey the land to him. The bill does not show what were the terms of the contract of sale, when the money was to be paid, or, in fact, any thing about it, except that he had agreed to purchase the land for three hundred dollars, and that at the time there were two hundred and fifty dollars due Browning upon the contract; nor does the bill show that Holloway had complied with the terms of the contract on his part, so as to entitle him to a specific performance. We should know what were the terms of the contract, so that we could judge whether Holloway had complied on his part or not. Indeed, from the face of the bill the inference is, that Holloway had not complied with his agreement, for it states there were at that time due to Browning two hundred and fifty dollars. How long this had been due and unpaid is not shown, nor is any excuse stated why Holloway had not paid that money when it became due. Such a case as this, if presented by Holloway at that time against Browning, would not have stood the test of legal scrutiny for a single moment. The purchasers certainly acquired no rights which did not then exist in Holloway; and they should show in their bill such a case as would have entitled him, at that time, to recover. Admitting that they succeeded to all his rights, as they then existed,— and it cannot be pretended that they acquired any more, — I am of opinion that this bill is substantially defective, and that the demurrer was properly sustained. Other objections might be urged against this bill, such as the want of an averment of notice to Wagner; but I do not think it necessary to discuss them. I think the decree should be affirmed.
Decree affirmed.
