25 Ill. 114 | Ill. | 1860
We are of opinion that this decree should be affirmed. There is not the discrepancy between the contract set out in the bill, and that established by the proof, which the plaintiff in error supposes. The contract was by parol, and is in the bill stated in general terms. It avers the purchase of the lot in question, by the deceased, of Ramsey, and that the consideration had been paid, and asks that the lot be conveyed, in pursuance of the purchase, and that it be sold, and the proceeds applied as assets. The proof, we think, sustains this.allegation. The bill does not attempt to state precisely what the consideration was, nor how it was paid, but this is explained by the proof. This general statement should have been taken advantage of, if at all, by demurrer. It could not be objected on the hearing. The objection that the Burge lot has not been conveyed to the defendant Ramsey, is answered by the fact that Ramsey was to pay the balance due to Burge, and get the title from him ; and when he pays that balance, he will no doubt be entitled to a deed from Burge. The non-delivery of the circular saw is the only appearance of a valid objection to this conveyance, and this we do not think should prevail. Both before and after the death of the decedent, Ramsey declared himself ready to convey the property, or that the deceased was entitled to a conveyance. He has received the mill property, for which this lot was to be conveyed in part payment only, and if he did not furnish a new saw for the mill, as he should have done, the proof leads strongly to the conclusion that the money payments have not all been made by Ramsey, which he agreed to make for the mill property which he has received. Those matters may very well be settled before the probate court. He has received the mill property, and is enjoying it, and agreed to convey this lot as a part payment for it; and we think the court properly directed that it should be done. Chancery may enforce the specific performance of a parol contract for the conveyance of land, notwithstanding the statute of frauds, where the consideration has been paid, and the purchaser has taken possession. The decree is affirmed.
Decree affirmed.
