26 Ill. 396 | Ill. | 1861
These cases are alike in every essential feature, and will be considered together.
If it be true that the plaintiffs had a right to abandon or rescind their contracts for the sale of the land upon which the money was paid, for the default or inability of the defendant to convey, they had a right to recover the money paid on their contracts, as for money had and received, whether their contracts were toy parol or under seal. This law is so well settled in this court, as to preclude the necessity of discussing it at length now.
The more serious question is, had the plaintiffs a right to terminate the contracts when they did? By the contracts, the vendees were to pay the stipulated price of the land in four installments, at specified times, and to pay the taxes to become due on the lands, and upon the payment of the last installments, the vendor was to convey the lands, and time is made of the essence of the contracts, the vendees to forfeit all payments made, if they failed to perform on their part. The three first payments were made, either at or before they fell due, or were accepted by the vendor after due, so that he could not complain that they were not promptly made. Neither the vendor nor the vendees paid the taxes for 1858 and 1859, but the premises were sold in 1859, for the taxes of 1858. Had the vendor declared a forfeiture of the contracts for the failure of the vendees to pay the taxes to the collector, a serious question would arise, whether a fair construction of the contracts required the vendees to pay the taxes to the collector, or to the vendor. But as the vendor never claimed or declared any forfeiture by the vendees for any cause, that question is not necessarily involved, and we shall not discuss it.
On the day when the last payments fell due, when it was the duty of the vendor to make conveyances, and of the vendees to pay the balance due upon the contracts, the vendees called upon the vendor and offered to pay the balance upon receiving an effectual conveyance. The vendor then admitted that he had not a title to the land, and could not convey; nor did he pretend that he ever had a title. He said one Hall owned the lands to whom he had assigned the contract, and the fair presumption is, that he never had a title to the lands, but that he had sold them without right, and for the fraudulent purpose of getting the plaintiffs’ money, and to devise some pretext for holding it. Be this as it may, there is no question that when the parties met, on the 1st of February, 1860, neither party had rescinded or attempted to rescind the contract. It was still subsisting, and so considered by both parties. The vendor did not refuse to convey because of any default by the plaintiffs, but solely for the reason that he did not own the lands, and could not convey them. That fact entirely absolved the vendees from any duty or obligation to tender the balance then due. The law requires no such silly and useless ceremony. Then it appeared that the vendor was not entitled to, and could not receive the purchase money, and he had no right to claim a tender of money which he had no right to receive. The purchasers had a right to repudiate the contracts as forfeited by the vendor, or rather as never having been rightfully executed by him, because he had no right to make them. The plaintiffs had the right to say, you have received our money wrongfully and even fraudulently, and you must pay it back to us as if you had never made these contracts, which you cannot perform, and which you should never have made. By bringing these actions, the plaintiffs treat the contracts as forfeited by the vendor, as they had a right to do, and the court below has rightfully allowed them to recover the money paid on the contracts, with interest.
The judgments must be affirmed. Judgments affirmed.
