235 Ill. 48 | Ill. | 1908
delivered the opinion of the court:
By the terms of the will none of the devisees took any interest in the real estate of testatrix. The will directed that all of the estate, real and personal, of the testatrix be sold and the proceeds be divided, except $4500 that was to be held in trust for the benefit of appellee. The devises, therefore, must be treated as devises of money and not of land, and in that case the devisees could not sell or convey title to any part of the land nor could the interest of any one of them in the proceeds be sold on execution. In such case the devisees may, if they are all of age and under no disability, elect to take the land itself instead of the money, but to accomplish this' the concurrence of all the devisees is required. This has been held to be the law from the time of the decision in the case of Baker v. Copenbarger, 15 Ill. 103, to Darst v. Swearingen, 224 id. 229.
Appellant contends that the re-conversion of the lot in controversy into real estate was for the benefit of all four of the children of testatrix, and that after such re-conversion it became the same as intestate real estate, or as real estate devised equally to all of the devisees. This position is contrary to the allegations of the bill, which, for the purposes of the decision of this case, must be assumed to be true. It -appears from the bill that the re-conversion of the premises into real estate was agreed to among all the heirs and devisees in March, 1903, at which time, by verbal agreement, the lot was accepted by appellee in lieu of the $4500 bequeathed in trust for her by her mother’s will. The personal estate of the testatrix inventoried by the administrators amounted to $16,125.57. The bill alleges that the indebtedness amounted only to the sum of $429.30, and it further appears from the allegations of the bill that, with the exception of a note for $1200, all the personal estate was retained by the administrators, and no account had been rendered thereof to the court or to appellee, who is surety on the bond of the administrators. At the time of the alleged re-conversion of the premises into real estate, and its acceptance by appellee, no other person or persons than the four children of the testatrix had any interest in the land or the proceeds thereof. All of them being of age and under no disability, they had the right to re-convert it into real estate instead of selling it and disposing of the proceeds in accordance with the provisions of the will. In our opinion Albert Pasquay did not, upon the re-conversion, become the owner of any interest in the land. The re-conversion, as alleged in the bill, was not for the benefit of all the heirs but was for the purpose of vesting title in appellee. It was the agreement that appellee might take it as real estate in lieu of other provisions made for her in the will, and her acceptance of it, that constituted the ■ re-conversion, and this operated to vest in her the equitable title. But if it be conceded, as claimed by appellant, that by the re-conversion each of the heirs became seized of a one-fourth interest in the premises, the three brothers conveyed their interests by parol to appellee, and pursuant thereto delivered possession, before appellant instituted the attachment proceeding.
Appellant contends that the parol agreement set up in the bill is within the Statute of Frauds, and therefore invalid. We have above set out the averments of the bill as to the agreement and the consideration therefor. The bill alleges that '“in pursuance thereof the said Ernest Pasquay, Rudolph Pasquay and Albert Pasquay delivered to your complainant the exclusive possession of the said real estate aboye described, and she entered into possession of the same under and in pursuance of the said agreement and of the conveyances hereinafter mentioned.” Where, pursuant to an oral sale of land, the consideration is fully paid and possession given the purchaser, this is a sufficient performance to take the case out of the Statute of Frauds. (Fitzsimmons v. Allen, 39 Ill. 440; Temple v. Johnson, 71 id. 13; Ramsey v. Liston, 25 id. 114; Morrison v. Herrick, 130 id. 631; Ashelford v. Willis, 194 id. 492.) In the last mentioned case it was said (p. 502) “While, at law, in order to constitute a valid conveyance of real estate or any interest in land it must be by deed having a seal and attended with certain formalities, yet in equity a good and indefeasible title may be conveyed without any writing whatever. The rights of the parties depend upon the character and extent of performance and the effect upon the donee by allowing repudiation. Practically all the writers on equity jurisprudence are agreed that contracts not under seal, and even contracts not in writing affecting or concerning an interest in land, are recognized in equity, if they have been so far performed that to permit a party to repudiate them would of itself be a fraud, and this court is committed to that doctrine. (Citing authorities.) Derived from the above authorities, the rule seems to be, that where the contract is fully performed and a valuable consideration paid and possession taken under it, the purchaser or grantee may, in equity, rely- upon his title for a defense or enforce specific performance of the contract.”
There is still another answer to this contention of appellant. A verbal contract respecting land is not void but is voidable only, at the will of either party to it, and a third person cannot object to the parties themselves being bound by the contract. The Statute of Frauds is a personal defense, and can only be relied upon by the parties or their privies. (Gary v. Newton, 201 Ill. 170; Singer, Nimick & Co. v. Carpenter, 125 id. 117.) Assuming, as we must, that the allegations of the bill well pleaded are true, appellant had no interest in the premises and was not in privity with any of the parties at the time the agreement was made, and he is in no position, therefore, to interpose the Statute of Frauds.
The fact that some time after the verbal agreement by which the appellee claims title Albert Pasquay made a quitclaim deed to Rudolph, and subsequently Rudolph and Ernest quit-claimed to the appellee, is not inconsistent with the allegations of the bill that the appellee claimed title by the verbal agreement. The bill alleges that these deeds were made by virtue of said verbal agreement. They did not convey title in the first instance, but were merely evidence of the title conferred by virtue of the provisions of the parol agreement under which possession was taken. Neither is the allegation of the bill that up to the time of the death of Emilie Pasquay appellee and her brother Albert lived with her mother on said premises, and that after the death of Emilie Pasquay appellee continued to make said premises her home, inconsistent with the averment that possession was delivered to appellee, in pursuance of said verbal agreement, at the time it was made.
The judgment of the Appellate Court is affirmed.
Judgment affirmed.
