151 N.E. 877 | Ill. | 1926
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *444
June 29, 1920, Charles H. Dickinson agreed to convey to appellee Timothy J. Fenton 145 acres of land in LaSalle county "by warranty deed and to furnish abstracts showing good merchantable title, and to deliver possession upon the payment of purchase price March 1, 1921." Subsequently Dickinson executed and delivered to his wife an assignment of a one-half interest in this contract executed between himself and wife on the one part and Fenton on the other. Dickinson died two weeks later, leaving him surviving, appellant, his widow, and two sisters, a brother and the daughter of a deceased sister as his heirs. In the fall of 1920 Fenton plowed some of the land preparatory to planting crops thereon the following spring, but the tenant of appellant and Dickinson's heirs continued in possession of the farm. In December, 1920, I.I. Hanna, attorney for appellant, delivered abstracts of title to Fenton, and these were delivered by the latter to his attorney for examination. Shortly thereafter Fenton wrote a letter to Sarah J. Fogg, a sister of Dickinson and executrix of his will, in which he stated that he would "have to throw up the contract" because he had not sold some land he had in Iowa and could not raise the money to pay the purchase price. Three days after Fenton wrote this letter his attorney rendered an opinion on the title to the land and pointed out several defects. *445
When this opinion was delivered to Hanna he agreed to take steps to perfect the title. Fenton says that appellant called on him in the early part of January, 1921, and agreed to leave $35,000 in the land if he would carry out the contract. Appellant denies this conversation. Fenton says that he went to Hanna's office the same day and told him that he would fulfill his agreement to buy the land and asked Hanna to have everything ready to close the deal March 1. February 4, 1921, a brother of Dickinson filed a bill to partition the land in question, claiming to be the owner of an undivided one-half of the 80-acre tract and of an undivided one-fifth of the 65-acre tract, which tracts comprise the 145 acres in question. Fenton, called as a witness by appellant, testified that he was at Hanna's office March 1, 1921, ready to take the land if he could get a merchantable title, but that Hanna told him he could not make him a good title because of the partition suit that was pending. When Dickinson died he left a will naming his wife as residuary legatee. This will was admitted to probate September 23, 1920. August 21, 1921, appellant renounced her rights under this will and elected to take under section 12 of the Dower act. The circuit court of LaSalle county denied the prayer for relief in the partition suit, and its decree was affirmed by this court in an opinion filed December 19, 1922. (Dickinson v. Dickinson,
The rule established in this State by repeated decisions is that one must show that he is ready, able and willing to perform a contract on his part before he is entitled to a decree for specific performance of the contract. (Congregation v. Congregation,
When the time came to perform the contract the partition suit brought by Dickinson's brother was pending in the circuit court. This suit challenged the title to the subject matter of the contract and rendered that title unmerchantable. It is well settled by the decisions of this court that the vendee cannot be compelled to take a doubtful title which will expose him to litigation. Weberpals v. Jenny,
By the contract the vendor agreed to furnish an abstract showing a merchantable title. The abstract introduced in evidence by appellant on the hearing before the master showed that the 80-acre tract was entered by Benjamin Barrett, but it failed to show that Barrett ever conveyed this land to another. The abstract shows that the title of the vendor was one obtained by mesne conveyances from Merrick Houghton, but there is no showing that Houghton acquired title from anyone. Conceding the correctness of appellant's position that the title to this land is good, it does not relieve the vendor from complying with the provision of his contract, which required him to furnish an abstract showing a merchantable title. (Geithman v. Eichler,
Where the vendor rescinds or abandons his contract he cannot thereafter demand specific performance of it. (King v. Walrath,
While there are circumstances which excuse delay in the prosecution of a bill for specific performance, (Cohen v.Segal,
The court properly denied the prayer for specific performance, and the decree is therefore affirmed.
Decree affirmed. *450