4 Ill. 502 | Ill. | 1842
Lead Opinion
delivered the opinion of the Court:
All of the errors assigned in this case, except the last, present precisely the same question, which arises on the decision of the Court below in sustaining the demurrer to the second, third, fifth, and sixth pleas, and will consequently be considered together. The second and fifth pleas show that the notes, which they attempt to answer, were given for the purchase of land, sold by the plaintiffs, as commissioners appointed by the Court to make the sale, and that at the time of the sale, the plaintiffs represented that those for whom they acted had a good title to the land, and that before the notes would have to be paid, they would make a good title in fee simple to the same; and then aver, that those whom the plaintiffs represented had not a good title to the land, nor have since had such title. The third and sixth pleas contain the same allegations, except that they omit the averment that those for whom the plaintiffs acted had no title; but they allege that the plaintiffs have not conveyed, &c. As no specific agreement is here alleged that those for whom the plaintiffs below acted, had a good title, or that they would make a good title before the notes fell due, or that the defendants should not be called upon to pay the notes till such title was made, and as the representations at the time of the sale and execution of the notes are not charged to have been fraudulent, the question arises, whether, where notes are made for the purchase of land, in the absence of any agreement that the title is good, or that the notes shall not be paid if the title fails, and in the absence of fraud, although untrue representations are in fact made as to the title, a failure of title shall constitute a failure of the consideration of the notes. This is a question which has already been before this Court, although, perhaps, not in the precise form in which it is here presented, and a short review of the cases found in our own reports, without going beyond them, will show what the true rule is.
The first case with which I have met is Snyder v. Laframboise.
The next case which I find bearing on this point is Miller v. Howell.
The same doctrine is recognised and fully sustained by this Court in the case of Kirkland v. Lott et al.
It may be said, that none of these cases are precisely like this, where a defence is set up that the title to the land has failed, for the purchase of which the notes were given. But the object of examining previous adjudications is, to see what principles of law are settled by their determination, and when those principles are ascertained, it then becomes the duty of the Court to apply them to the particular case under consideration. If the objection could be made that the principle attempted to be applied was found in the decision of a case not precisely parallel in all of its features with the one to which the application is proposed to be made, reports of adjudications would be almost useless, for in many cases it would be a rare occurrence indeed to find others precisely like them in every particular. It is sufficient if their resemblance is such that the same general rule must control each. It is then that the rule established in one case, becomes the principle of decision in the other.
The next and only other case which I find in the reports of this Court, bearing directly on this point, is Myers v. Aikman.
The principle clearly deducible from this uniform train of deci-, sions of this Court, from its first organization to the present time, is, that it is not a sufficient defence to a note or bond that it was given for the purchase of land, and that the purchaser acquired no title, or that there was a defect or misrepresentation as to the quantity, quality, or location. It is no matter what representations were made at the time of purchase, so that they were made in good faith, and the transaction was not tainted with fraud, where there is no express agreement on the subject. And this is in perfect accordance with most of the decisions in England and our sister ' States.
There are two other cases in our own reports which it may not be improper to examine, as they have sometimes been supposed to be somewhat at war with the principle above laid down, which, upon a careful examination, will be found not to be the case.
The first is the case of Gorham et al. v. Peyton.
The next is the case of Tyler v. Young et al.
The principle established by the first case is, that where there is an express agreement that a perfect title to the land for which the note was given, shall be made, before the note falls due, and that the makers shall not be called on to pay the monéy until a perfect and clear title is made, that a failure to complete this title constitutes a failure of the consideration of the note, although the agreement is not in writing. In the case of Tyler v. Young et al., the agreement between the parties was substantially the same, and had the advantage of being reduced to writing, and its decision was governed and controlled by the same principle. In both these cases a specific title was agreed for, and that specific title was really the consideration for which the note, in each case, was given, and in each case the vendor had not, or could not give the title specifically agreed for, and that failing, the consideration of the note necessarily failed. Thus it will be seen that the principle decided by these cases does not at all conflict with that established by the cases before referred to. Those cases show, that in the absence of fraud, and in the absence of any specific agreement for a particular title, the purchaser takes the title at his own risk. The latter cases show, that where the vendor expressly agrees to give a specific title, whether there be fraud in the case or not, he shall take the responsibility of that particular title, and if he will not, or cannot give that title, he shall not be permitted to collect the note given in consideration of that agreement, and turn the party round to seek his remedy on the agreement or his covenants.
These being the general rules by which these pleas are to be tested, it is only necessary to see whether they charge the plaintiff with fraud, in the representations which he made at the time he sold the land for which the notes were given, or whether they show any specific agreement for a particular title to this land. If the pleas show either of these facts, and are otherwise sufficient, then they are good ; if they do not, then the purchaser took the title at his own risk, and a want of a perfect title constituted no defence to the notes. In these particulars the language of all four of the pleas is the same, and, as I have before shown, neither of them contains either of these allegations. Nothing like fraud is pretended, and the word agreement, or its equivalent, is not found in either plea. The demurrer to these pleas was properly sustained by the Court below.
The only remaining error to be disposed of arises on the decision of the Court in rejecting the evidence offered by the defendant on the trial, as shown by the bill of exceptions. The evidence offered and rejected was, to prove that certain lots in the city of Ducoyne, for the purchase of which the notes were given, were sold by the plaintiffs, as commissioners appointed by the Circuit Court for that purpose ; that they were sold as the land of I. Sprigg and the heirs of S. B. Atkins, and that, at the time of said sale, neither the said heirs, nor the said Sprigg had any title to said lots, nor had they acquired one since, and that the plaintiffs were unable to make a good title to said lots. As there were no issues taken on any of the pleas of failure of consideration, this evidence, must have been offered under the pleas of no consideration. Ini determining the question of demurrer in this case, we have already t decided that without fraud or warranty, the purchaser takes the Í title at- his own risk. So the consideration of the notes was not a j perfect title, but whatever title the plaintiff could give; so that if the title proved defective, it was the defendant’s misfortune, or | his folly, in purchasing without covenants. Had he obtained ¡ covenants for a specific title, and that title had failed, he might well have set up that failure, although not under this issue, as a defence to the notes. The Court decided correctly in rejecting this evidence. None of the errors assigned being sustained, the judgment of the Circuit Court is affirmed with costs.
Breese 268.
Breese 234.
1 Scam. 499.
2 Scam. 13.
2 Scam. 452.
2 Scam. 363.
3 Scam. 444.
Concurrence Opinion
delivered the following concurring opinion:
I concur in the propriety of affirming the judgment. I do so, however, on the ground that the sale set up in the pleas was a judicial sale. In such sales the rule of caveat emjttor applies, and the purchaser acts at his peril. He is to be charged with full knowledge of the goodness of the title he is acquiring, and should not rely upon any representations or promises of the individual who makes the sale. The commissioner does not act in his own right, nor on behalf of those who are entitled to the proceeds of the estate, but as the agent of the law, without any authority to warrant the title, or make any agreement binding on the parties interested.
Judgment affirmed.