75 Ill. 400 | Ill. | 1874
delivered the opinion of the Court:
The appellants, as vendors, set forth the legal effect of the agreement, which they were asking the court to specifically enforce, to be, that they were to furnish the appellee, the vendee, abstracts of title to the premises, made from the records of the county by competent abstract makers, and if the title thus shown was approved by the vendee’s attorney, they were to convey. They allege the furnishing of such abstracts, from which it appeared that their title was good and indefeasible, at law, and in equity, and that vendee’s attorney approved it. There is no allusion to any other title than such a title of record, nor is there any allegation that the vendee intended to, or did, waive all objection thereto; for they in no respect assume that there was any defect of their record title. When it turns out that their title of record was defective to the extent of an undivided half of the premises, which must have been known before the bill was filed, and that vendee’s attorney did not, in fact, approve, but, on the contrary, condemned their title as shown by the abstract, they claim that, irrespective of their covenant to exhibit and convey a good title of record, irrespective of the allegations of the bill that they, in fact, and in law, had such a title, they were entitled to specific performance under that bill, by showing a title depending upon adverse possession, under the statutes of limitations, or in other words, upon a title based upon extraneous facts, resting in parol. Where a purchaser has contracted for a good title of record, and, upon a bill filed by the vendor, it appearing that the latter had not such a title as he covenanted to convey, for the court to permit the vendor to establish a title depending upon adverse possession, under the statutes of limitations, and compel the vendee to take that as a substitute for what was contracted for, is, in effect, for the court to make a new contract for the parties, and then execute it. In the very nature of things, a good title of record to real estate must, under our laws, be more reliable, and consequently more valuable and desirable than one depending upon a variety of extrinsic circumstances, to he established by parol evidence.
This court, in Brown v. Cannon, 5 Gilm. 182, said, what must be obvious to every one experienced in such matters, that, “ Of all known titles to land beyond a mere naked possession, which are prima facie good, there is perhaps none, recognized by law, more doubtful and uncertain than those depending for their validity upon an adverse possession under a statute of limitations.”
It is enough for the purposes of this case, that a good title of record, and one depending upon parol evidence, are substantially different. The motives and fancies of mankind are so various, that the law, which recognizes the right of parties to make just such contracts as they choose, not prohibited, or against public policy, will not call upon a man who has contracted to purchase one thing, to explain why he refuses to accept another. The title sought to have substituted by the court, for that which the vendors covenanted to give, is not only different, but obviously less marketable and valuable. The contract, as made by the parties, was definite, equal and fair in its terms. The moment the proposition is admitted, that the court may substitute any other mode of performance, and a title of a different character, transactions of this character, no matter how definite and fair in their terms as made, lose both the quality of definiteness and fairness. The purchaser could have no idea, when he contracted for a particular kind of title, that a court of equity would have the authority to compel him to take another and inferior kind of title. Lord Habdwioke, speaking of contracts which the court would enforce, said: “ Nothing is more established in this court, than that every agreement of this kind ought to be certain, fair and just in all its parts. If any of those ingredients are wanting in the case, this court will not decree specific performance.” Buxton v. Lister, 3 Atk. 386. “ I lay it down as a general proposition,” said Lord Bosslye, “ to which I know no limitation, that all agreements, in order to be executed in this court, must be certain and defined; secondly, they must be equal and fair; for this court, unless they are faff, will not execute them; thirdly, they must be proved in such manner as the law requires.” Lord Walpole v. Lord Orford, 3 Ves. Jr. 420.
It needs no argument to prove that the substitution by the court of one thing for another, is subversive of the doctrine of the court as to definiteness and certainty in contracts of which specific execution is sought. There is nothing shown in this case why the purchaser should not have just what he contracted for, viz.: a good title of record to the premises. If, therefore, the court could disregard the terms of the covenant, and compel Mm to take a less valuable title, it would not be fair and just towards such purchaser. So that it would be against the fundamental rules governing courts of equity, to decree the specific execution of the contract in this case in the way proposed. It would be to enforce specific performance by the purchaser, with relief therefrom on the part of the vendors. ' Such an enforcement of the contract is not of the one made, but of another, with terms framed in the discretion of the court, and therefore not certain and definite; with the substitution of something the purchaser did not agree to take, and therefore not equal and fair. But appellant’s counsel say the purchaser cannot insist upon the objections to vendors’ title of record. He has waived them by entering into possession, and exercising rights of ownersMp. But appellee’s counsel reply to that, “ Why did, you come into court with the assertion that you had a good and indefeasible title of record; and, if you intended to rely upon a waiver of objections to title, why did you not apprise us of that purpose, by some allegation in your bill to that effect ? ”
The bill, it is true, states that the purchaser went into possession and exercised acts of ownership. But it does not say that he thereby intended to, and did, waive all objections to the title, but, on the contrary, asserts a good indefeasible title of record, without any allusion to defects or intention on the part of the purchaser to waive them. It is a well settled rule, that every material allegation must be put in issue by the pleadings; and no interrogatories can be filed, which do not arise from, or relate to, some fact charged in complainant’s bill. Helm v. Cantrell et al., 59 Ill. 524; James v. McKernon, 6 Johns. 543; Woodcock v. Bennett, 1 Cow. 734.
If the waiver depended upon intention, such intention should have been alleged; and if intention be of the essence of it, and not being alleged, the statement of the fact of taking possession and exercising acts of ownership is mere surplusage in the bill; because the latter goes exclusively upon the assumption that the vendors had, in fact, just such title as they covenanted to convey Is the waiver a question of intention from all the circumstances, or is it an arbitrary presumption from the mere fact of taking possession ? It is laid down in 2 Dan. Oh. Pr. 1195, that the acts of taking possession and exercising rights of ownership will not preclude the purchaser from his right to investigate the title, unless the court is satisfied, from them, that he intended to waive, and has actually waived, such right; and when such an inference could not be drawn from those facts, the court will refuse to depart from its ordinary rules.
Again, Sugden says: “ The question in each case is one of fact: did the purchaser mean to waive, and has he actually waived, his right of examining the title ? ” 1 Sugd. on V. & P. (8th Am. ed.) 517; Burroughs v. Oakley, 3 Swanst. 159; Dowson v. Solomon, 1 Drew & Sm. 1.
Where a waiver is relied upon, the seller’s bill should be so framed as to put that question in issue, or evidence to prove the waiver cannot be received. 1 Sugd. 517; Clive v. Beaumont, 1 De G. & Sm. 397; Gaston v. Frankum, 2 ib. 561.
By the contract in this case, no time was fixed for furnishing abstract or making conveyance by vendors, and the vendee was authorized to take possession whenever the house, which vendors were building, was completed. This is an important circumstance upon the question of waiver. Sugden says: “ But if possession is authorized by the contract to be taken before a title is made, the fact of possession cannot by itself be used against the purchaser, for that would be contrary to the very terms of the contract.” 1 Sugd. on V. & P. 518, § 20.
It is perfectly clear to our minds that, under the bill in this case, appellants could not avail themselves of a waiver. The purchaser was entitled to such a title as the vendors covenanted to convey, and the latter were bound to show,upon the hearing, that they, at that time, at least, had a good title of record. Failing in that respect, the court, as their bill was framed, properly dismissed it; and we must affirm the decree.
Dearee affirmed.