11 Ill. 194 | Ill. | 1849
That the deed from Smith to Montgomery and others, created an incumbrance upon the land which he had contracted to convey to the complainant, and put it out of his power to comply with his obligation, there can be no question. By his bond, Smith had obligated himself to execute and deliver to the complainant, “ a good and sufficient general warranty deed,” for the premises in question; that is, he covenanted to convey a perfect title, free of all incumbrances, (Brown vs. Cannon, 5 Gil., 174,) and yet previous to the execution of the bond to complainant, he had conveyed away to Montgomery and others, their heirs and assigns, the right to dam up and use the water of a branch running through the land; and, also, to use the water of a spring situate upon it. This easement, originally granted to Montgomery and others, and which, by subsequent conveyances, as the record shows, became wholly vested in Hollister, created a perpetual incumbrance upon the land, and Morgan had a right to insist, when called upon to pay the purchase money, upon a deduction from the contract price, of a sum equal in amount to the deterioration of the property, occasioned by the easement existing upon it; and he was not bound to accept a deed, reserving the privileges which had become vested in Hollister, nor any other than such a deed as would convey to him a complete title to the premises he had contracted for, free of all incumbrance.' Morgan might, no doubt, have set up the existence of the easement, as a defence to the suit upon the note, and would have been entitled to a credit, equal in amount to the injury occasioned by the incumbrance; but we think, in order to have the rights of the parties fully and finally settled, he might also come into a Court of Equity, where the obligor might be compelled to surrender up the note, and execute a deed upon such terms as should be found to be just and equitable. 'The whole record shows such a case as to entitle the complainant to relief; but then it is insisted, that the allegations of his bill are not such as to warrant its being granted in this suit. It is a well settled principle, that the allegations and proofs must correspond, and that a party will not be entitled to relief, although the evidence may establish a clear case in his favor, unless there are averments in the bill to support the ease made by the evidence. That the character of the incumbrance is not as distinctly charged as it might have been, is apparent, but a party is not bound to set forth his adversary’s title or rights, with the same particularly as his own. The extent and character of the privileges of the defendants, Montgomery and Hollister, being more peculiarly within their own knowledge, it was suificient for the complainant to allege generally, that they had, or claimed to have, some claim or privilege upon the land, leaving them to disclose in their answers its nature and extent; which they have done. Cooper Eq. Pl., 6; Story’s Eq. Pl., sec. 255.
The bill alleges, that the complainant “has learned that Samuel Montgomery and Henry R. Hollister have set up some claim to a portion of, or to some right upon said land,” and charges, that the defendants have combined to “ reserve rights and privileges that were never originally reserved in said purchase,” and prays that Montgomery and Hollister be compelled to exhibit and show “ what right they have to said land, or to any part of it, and all privileges connected therewith; ” that the Court determine the rights and privileges that said Montgomery and Hollister are entitled to, out of said land, and that an abatement out of the consideration paid and agreed to be paid for the same be made, equal to the value of the rights reserved. The foregoing allegations and prayer, we think sufficient to entitle the complainant to have his rights and liabilities determined in this suit, notwithstanding both parties seem to have lost sight, in a great measure, of the real points in the case, and to have directed their attention, chiefly, to the question whether the complainant, at the time of his purchase from Smith, had notice of the rights claimed by Montgomery and Hollister—a question, as we conceive, wholly immaterial in this case, as Smith was equally bound by the covenants in his bond, whether the complainant knew of the easement or not. The cross bill filed by Hollister, was wholly unnecessary, and was, therefore, properly dismissed. He had fully set forth and shown his rights in the premises, as a defendant to the original bill, and this was all that he was required to do for the protection of his rights. The original bill was also properly dismissed, as to both Montgomery and Hollister, as no decree could be entered against them, but the Circuit Court erred in dismissing it as to Smith; and as the evidence in reference to the deduction that should be made, in consequence of the easement upon the land, is somewhat uncertain and unsatisfactory, the cause will be remanded, with directions to the Circuit Court, to ascertain how much less the premises contracted for by the complainant are worth, in consequence of the privilege or easement which Hollister has in them; and if the amount is less than what remains due for the land, to deduct it therefrom, and render a decree for the balance in Smith’s favor; and upon the payment of such balance by the complainant, that the note for the balance of the purchase money be cancelled, and Smith decreed to execute and deliver to the complainant a general warranty deed, conveying to him a complete title to the premises described in the bond; excepting therefrom the one and thirty-four hundredth acres occupied as a tan yard, and the easement originally granted to Montgomery and others, and now belonging to Hollister; or, if the deterioration in value of the premises, in consequence of the easement or privilege of Hollister in them, shall be found to exceed the balance due Smith for the land, that said note be cancelled, and Smith decreed forthwith to execute and deliver to the complainant a deed of the character aforesaid, and to pay him such excess. The complainant is not entitled to any deduction from the price he agreed to pay, on account of the quantity of the land, as shown by actual survey, being some one or two acres less than what it was estimated to be at the time of the sale. The condition of the bond shows that he did not purchase by the acre, hut gave so much for the particular lands, describing them, and being the same then occupied and contracted by said Smith as a farm, containing “ seventy acres, more or less.” The mention of the quantity of acres was, in this instance, but matter of description, and did not amount to any covenant which would be violated, if the quantity of acres should fall short of the given amount. 4 Kent’s Com., 466. Nor can the complainant claim any deduction on account of the tan yard tract having been conveyed to Montgomery and others, as he proffers in his hill to accept a deed excluding it, and it constituted no part of the farm occupied by Smith, at the time of the purchase, but was then, as the bill admits, in the possession of Montgomery and Hollister.
So much of the decree of the Circuit Court as dismisses the cross hill filed by Hollister, and the original bill as to Montgomery and Hollister, is affirmed; and the balance of said decree is reversed, and the cause remanded, at the costs of said Smith.
Decree modified.