34 Ill. 468 | Ill. | 1864
delivered the opinion of the court:
Defendants’ intestate agreed, on the 14th day of February, 1856, with the plaintiff in error as follows:
Article of agreement made this 14th day of February, 1856, between O. D. Sanford as agent for the sale of town lots, in the town of Round Grove, Whiteside county, and State of Illinois, of the first part, and Samuel Emory, of the county and state above written, of the second part, witnesseth: That the party of the first part does hereby agree to sell unto the second party the following town lot, in said town of Round Grove, known and numbered as follows: Lot two (2) in block fourteen. (14) The condition for the purchase of which is the sum of two hundred (200) dollars, to be paid in the following manner: One fourth of the above amount to be paid when the proper papers are made by deed; a bond and mortgage to be given in return, by the second party to secure the unpaid balance; is to be divided into three equal payments, and payable in six (6), twelve (12), eighteen months; ten per cent interest from date until paid, said conditions to be complied with as soon as said O. D. Sanford, as agent, can safely make title of said property, being now in part connected with the unsettled estate of John A. Holland of Rockford, deceased; which said estate is now being settled with reference to perfecting title, so that said O. D. Sanford may safely'deed the same. 0. D. SANFORD. [seal.]
S. J. EMORY. [seal.]
Emory, soon after, went into possession of the lot, built a corn crib on it, and occupied it for a year or more. The lot was not inclosed and was near the railroad depot.
Emory having died, the plaintiff filed this agreement in the County Court as a claim against his estate, which that court disallowed, and on appeal to the Circuit Court it was also disallowed.
It was in proof in the Circuit Court, that on the 6th of January, 1859, the plaintiff and wife executed a general warranty deed for the lot to Emory with the usual covenants, with the relinquishment of the dower of his wife, and duly acknowledged, which, on the 30th day of January, 1859, he tendered to Emory, when Emory said he did not want the deed—he would be up in a few days and settle.
It was also proved, that on that day the value of the lot was not more than one hundred dollars.
It was further proved that it was in plaintiff’s power to have made a deed conveying the title at any time after the 18th of Hovember, 1856.
The question is, was Emory bound to accept the deed when . tendered %
The answer to this question involves the consideration of another, and it is this: Could Emory compel a specific performance of this contract if he had tendered the purchase-money on the 30th of January, 1859 ? By the terms of the agreement, the whole amount was due about the 18th of August, 1857. Sanford had it in his power to make the deed and demand the price on any day after the 18th of November, 1856, and had contracted to make it so soon as he was able. At law (and this was a proceeding at law), time is material. It was the clear duty of Sanford, in a reasonable time after that day, to tender the deed; for before the deed was delivered Emory could not well execute the mortgage. ¡Nor was he required to give his notes until the deed was made. To put Emory in default, then, the deed should have been tendered. This would have enabled Sanford to compel a specific performance.
To enable Emory to compel a specific performance, he should have, in a reasonable time after the 18th of November, notified Sanford that he was ready to comply with the contract on the execution of a deed. ¡Neither party then has been in a position to compel a specific performance. ¡Neither had shown himself ready, desirous, prompt and eager to perform.
But does it follow from this, that the contract is rescinded. Oan one party without notice to the other, or by some affirmative act, rescind a contract? The rule is, where one party fails in performing the contract at the proper time, the other, if he means to rescind it, should give a clear notice of his intention. 1 Sug. on Ven. 279; Reynolds v. Nelson, 6 Wend. 20.
Emory had taken possession of this lot, and erected a building on it, and before the deed was tendered, on the 30th January, 1859, he had not surrendered the possession. For aught that appears, his hems are still in possession of the premises. When this tender was made, he did not notify Sanford that he had rescinded the contract, but said he did not want the deed, but would come up in a few days and settle, nor did he offer to surrender the possession of the lot. On the authority of the case of Gehr v. Hagerman, 26 Ill. 438, we are inclined to think that before Emory could rescind, he was bound to restore the property to Sanford, or offer to restore it. The contract was in existence, and if the premises appreciated in value Emory might at some future day claim its performance. He has no right to claim all the benefits of the contract and at the same time insist it is rescinded. The rescission should be mutual, so as to discharge the vendor as well as the vendee. Teter v. Hinders, 19 Ind. 93; Johnson v. Houghton, id, 259; Bank of Columbia v. Hager, 1 Peters, 455.
The judgment must be reversed and the cause remanded.
Judgment reversed.
