| Ill. | Apr 3, 1897
delivered the opinion of the court:
The real question in this case is, what were the rights of the parties under the contract set out in the foregoing statement? The claimant’s contention is, that by the terms of the contract there was vested in him an interest in the land described in the contract and in the proceeds arising therefrom after the sale of the land, and that the contract was a valid and subsisting one April 8, 1886, when the land was sold to G,eorge A. Severas. The contention of the executors of the estate of George L. Matthews, defendants in the probate court of Cook county, where the claim was filed first, and appellants here, is, that Kerfoot had abandoned the contract before the sale.
It was held in Doggett v. Dill, 108 Ill. 560" date_filed="1884-01-23" court="Ill." case_name="Doggett v. Dill">108 Ill. 560, that the probate court, in the matter of claims against estates, exercises a jurisdiction equitable in its nature, and if the estate is liable under the contract, judgment could be entered against the estate. (Hurd v. Slaten, 43 Ill. 348" date_filed="1867-01-15" court="Ill." case_name="Hurd v. Slaten">43 Ill. 348; Mason v. Tiffany, 45 id. 392.) The question whether the contract gave Samuel H. Kerfoot an equitable interest in the land and an interest in the proceeds arising from the sale thereof must be determined from the construction of the contract, and whether it was the intention of Matthews & Cornwell, the parties thereto, that Kerfoot should acquire an equitable interest in the land.
Courts, in construing written contracts, endeavor in all cases to place themselves in the position of the contracting parties, so that they may understand the language used in the sense intended by the persons using it. (Doyle v. Teas, 4 Scam. 202.) The object of Matthews & Cornwell, the owners of the land, was to place the land upon the market. They interested Kerfoot in the matter and made the contract with. him. The contract, after reciting that Matthews & Cornwell are the owners of the south-east quarter of the south-west quarter of section 25, township 40, north of range 13, east of the third principal meridian, etc., says: “Be it known, that in consideration of the sum of one dollar to the said Matthews & Cornwell in hand paid by the said Kerfoot, the receipt whereof is hereby acknowledged, the said Matthews & Cornwell, their heirs or assigns, agree to sell to the said Kerfoot, his heirs or assigns, an interest in said premises on the following terms.” It then provides that the parties shall jointly and equally pay all taxes and assessments levied on said premises from, since and after the first day of January, 1868, as also all costs of grading streets or other improvements made or to be made on the premises by the joint consent of the parties hereto; that the said Kerfoot shall take sole care, charge and management of said premises, attend to the payment of taxes thereon, make sales thereof, collect moneys to come due on such sales, and, in fine, to do all that a resident and supervising agent should do towards the profitable and advantageous management and disposal of said premises, without fee or commission; that the proceeds of sales made by Kerfoot, after the payment of taxes and cost of improvements, are to go into the hands of Matthews & Cornwell, until the aggregate amount of such sale shall reach the sum of §25,980, with ten per cent interest thereon from the first day of June, 1871; that after the said Matthews & Cornwell are fully paid, by cash and securities arising from such sales, the sum of §25,980, with interest, all parts of said premises then at the time of said payment remaining unsold, and all further proceeds of sales of any part of said premises remaining on hand or to be collected after the payment to Matthews & Corn-well, as above stated, shall be the joint property of and belong to the said Matthews & Cornwell, their heirs or assigns, an equal half, and to the said Kerfoot, his heirs or assigns, an equal half; that at the end of two years from the first of June, 1871, if Matthews & Cornwell should not be paid the sum of §25,980, with ten per cent interest, they should have the power to make sale of the whole or such part as may be necessary, on the most advantageous terms for all concerned, and out of the proceeds of such sales should pay all taxes and assessments legally levied on said premises and not then paid, and all costs of improvements made on said premises but not paid for, and reserve to themselves the said sum of §25,-980, with ten per cent interest, and divide any excess of land or proceeds, as before provided for, between said Matthews & Cornwell one half and said Kerfoot one-half; that one-half of any deficit arising from the transaction by reason of the failure of the proceeds of sales to pay the said sum of §25,980, with ten per cent interest, and any money advanced by said Matthews & Cornwell for the joint account of the parties in that connection, should be paid to the said Matthews & Cornwell, their heirs or assigns, by the said Kerfoot, his heirs or assigns; that after the payment of the moneys and securities to the said Matthews & Cornwell, any parts of the said premises then unsold, or proceeds of sales, shall belong to Matthews & Cornwell an equal half and to Kerfoot an equal half; that when Matthews & Cornwell are fully paid, then a special warranty deed shall be made to Kerfoot of one-half of any land then remaining unsold; that all moneys for taxes, improvements or in any way needed on behalf of said property were to be advanced by Matthews & Cornwell one-half and said Kerfoot one-half; that no sale of the land for a period of two years from June 1,1871, was to be made without the general consent of all parties; that the contract was to extend to and be obligatory upon the heirs and legal representatives of the parties. The contract was under seal and was duly acknowledged.
If we give to words their plain, natural and obvious meaning, as used in this contract, we can come to no other conclusion than that it was the intention of the parties that Kerfoot should have an interest in the land and the proceeds thereof after the payment of the $25,-980, and ten per cent interest thereon, and the taxes, etc., paid by Matthews & Cornwell. They expressly agree to sell an interest in the land. They receive a consideration in money for it. Matthews & Cornwell and Kerfoot are to jointly and equally pay all taxes and assessments, and after the payment to Matthews & Cornwell of a certain amount, all proceeds of sales are to be the joint property of Matthews & Cornwell and Kerfoot, each one-half. A special warranty deed was to be made by Matthews & Cornwell to Kerfoot of an equal undivided half of any portion of land remaining unsold, Kerfoot being compelled to pay Matthews & Cornwell any deficit arising by reason of the failure of the proceeds of sales to pay the $25,980, with ten per cent interest, and any moneys advanced by Matthews & Cornwell for the joint account of the parties. The extending the rights and obligations to the heirs and legal representatives of the parties satisfies us that any other construction would do violence to language and be inconsistent with the meaning intended by the parties. If Kerfoot was to have no equitable interest in the land,—no interest in the proceeds from the sales,—why did the parties use the language, “agree to sell to the said Kerfoot an interest in said premises?” Why should “all parts of said premises remaining unsold, and all further proceeds of sales, * * * be the joint property of and belong to the said Matthews & Cornwell, their heirs or assigns, an equal half, and to the said Kerfoot an equal half?” Kerfoot was to receive no fee or commission, and it is improbable that he would obligate himself to pay a deficit in the §25,980, and ten per cent interest, and half of taxes and improvements, and be compensated out of expected profits.
The case of Barling v. Peters, 131 Ill. 78" date_filed="1889-12-18" court="Ill." case_name="Barling v. Peters">131 Ill. 78, is similar, and sustains the view we have taken of the contract in this case that Kerfoot acquired an equitable interest in the land and in the proceeds arising therefrom.
The appellants contend that the contract was abandoned by Kerfoot long before the sale. From 1871 to 1874 Kerfoot performed his part of the contract, looked after the property and paid his part of the taxes. He found two persons who made offers for the land. One purchaser offered §80,000, but Matthews declined to sell at the price offered. The other purchaser offered §90,000, but the sale was not consummated because an abstract of title was not procured in time. Fences were built, streets graded, taxes paid and the land rented for grass up to and including 1877 by Kerfoot, but Kerfoot made no advances for taxes after the year 1874. The land was sold for taxes in 1875 and 1876, but was redeemed by Matthews & Cornwell August 29, 1877, Kerfoot failing to contribute any part towards the redemption from the sales. The taxes for the years from 1875 to 1885 inclusive were paid by Matthews & Cornwell. By the terms of the contract, after the expiration of two years from June 1, 1871, Matthews & Cornwell had the right to sell the land themselves, the whole or a part, on the most advantageous terms for all concerned, and out of the proceeds of such sales pay all taxes and assessments legally levied and not then paid, all costs of improvements made but not paid for, and reserve to themselves the sum of §25,980, with ten per cent interest, and divide any excess of land or proceeds, as before provided for, between, Matthews & Cornwell one-half and said Kerfoot one-half. This seems to imply that Matthews & Cornwell should make payments on joint account, when taken in connection with the clause of the contract that one-half of any deficit arising from the transaction by reason of the failure of the proceeds to pay the said sum of §25,980, with interest, and any other moneys advanced by said Matthews & Cornwell for the joint account of the parties to the contract, should be paid to the said Matthews & Cornwell, their heirs or assigns, by^ the said Kerfoot. From 1874 to 1880 the property would not have sold for the amount of the investment and the advances made by Matthews & Cornwell. In fact, one witness testified this property, in common with all other acre property, was absolutely unsalable from 1874 to 1879. If anybody wanted it, it might have sold for $400 or $500 an acre. This must have been known to Matthews & Cornwell, and it is evident they did not desire to sell during that period, as there is no evidence showing an offer to sell the property by Matthews & Cornwell until the property was sold to Severas by a real estate broker, April 8, 1886. The letter of Matthews & Cornwell dated September 10, 3877, asking Kerfoot to pay his share of the taxes for the years 1875 and 1876, says nothing-about forfeiting the contract, but shows that they regarded the contract in force at that time, for they say, “unless you do this we shall hold you responsible for the cloud you throw over the title by allowing the land to be sold for taxes.” There is no provision in the contract that if Kerfoot fails to perform his part under the contract he shall forfeit his rights, and no steps were taken by Matthews & Corn-well to forfeit Kerfoot’s fights under the contract, and when Kerfoot notified them by letter of April 15, 1886, that neither the ofiicials of the Third National Bank nor the receiver had any claim or interest in the contract, Matthews & Cornwell replied giving the terms of the sale they had made to Severns for $93,500, the amount of cash they had received and the commissions they had paid the real estate broker who made the sale, but said nothing about forfeiting the contract or its not being in force. These facts and circumstances are inconsistent with appellants’ claim that Kerfoot had abandoned the contract before the sale was made. Matthews & Corn-well had the right to make the sale themselves, if, at the end of two years from June 1, 1871, they had not been paid the $25,980, on the most advantageous terms for all concerned. They had the right, out of the proceeds, to pay all taxes and costs of improvements, and reserve to themselves the $25,980, with ten per cent interest thereon, and divide any excess of lands, or proceeds, one-half to Matthews & Cornwell and one-half to Kerfoot. It was most advantageous for all concerned to wait as they did for a better market. This, po doubt, they preferred to do for the best interests of all concerned.
Prom these considerations we arrive at the conclusion that Kerfoot had an equitable interest in this land, and from the conduct of the parties it continued until the land was sold, and it was within the power of the court to fully reimburse Matthews & Cornwell by taking from the proceeds of the sale the portion of the taxes which Kerfoot failed to pay, and make the performance by Kerfoot a substantial performance under the contract.
Prom the construction we have placed upon the contract the propositions of law submitted to the circuit court did not announce correct principles of law, and were properly refused.
The judgment of the Appellate Court is affirmed.
Judgment affirmed.