| Ill. | Oct 26, 1893
delivered the opinion of the Court:
This being a bill by a vendor for the specific performance of a contract for the sale and conveyance of land, the complainant, to entitle himself to a decree, must show that the title which he offers to convey is good beyond a reasonable doubt, and one which will 'not expose the purchaser to litigation with parties not now before the court, and therefore not bound by its decision. A doubtful title which a purchaser will not be compelled to accept, is not only a title upon which the court entertains doubts, but includes also a title which although the court has a favorable opinion of it, yet may reasonably and fairly be questioned in the opinion of other competent persons; for the court has no means of binding the question as against adverse claimants, or of indemnifying the purchaser, if its own opinion in favor of the title should turn out not to be well founded; that if doubts as to the title arise upon a question connected with the general law, the court is to judge whether the general law on the point is or is not settled; and if it is not, or if the doubts as to the title may be affected by extrinsic circumstances, which neither the purchaser nor the court can satisfactorily investigate, specific performance will be denied. Parke v. Waddington, 10 Hare, 1; Mullings v. Trinder, L. R. 10 Equity, 449. The leading authorities bearing upon this rule are cited in Close v. Stuyvesant, 132 Ill. 607" date_filed="1890-05-10" court="Ill." case_name="Close v. Stuyvesant">132 Ill. 607, and the citations need not be repeated here.
It is urged that the title which the complainant proposes to convey, as the same is made to appear by the allegations of the bill, is substantially defective in this, that the decree by which the complainant was appointed successor in trust, and the conveyance made in pursuance of that decree, failed to vest in him a complete title to the land. Charles J. Wyeth died in 1873, and by the terms of his will, a trust estate was vested in Nathan Corwith, as trustee, the income of which was to be expended for certain purposes particularly described, and the principal was to be divided between the testator’s two sons, Leonard J. Wyeth and Nathan C. Wyeth, provided they both arrived at the age of twenty-five years. Provisions were also inserted directing the distribution of the trust fund to be made :in case of the death of either of the sons, with or without issue, before arriving at that age, and in case both died without issue before arriving at the age of twenty-five years, the estate was to be distributed, in part, to two cousins of the testator, the residue to be held in trust for the benefit of the widow during her life or widowhood, and thereafter to be divided between two other cousins of the testator.
Nathan Corwith having mingled the trust funds with his own, and having become insolvent, for the purpose of securing the beneficiaries under the will in respect to the trust estate, he conveyed to his brother, John E. Corwith, the lots in question, together with the lot since sold to Hathaway, “in trust for Leonard J. Wyeth and Nathan C. Wyeth, heirs at law of Charles J. Wyeth, deceased,” and it was further expressly declared in the deed that, “the conditions of the said trust are the same as set forth in the will of Charles J. Wyeth, deceased.” There can be no doubt, and indeed it is not questioned, that the effect of this deed was to charge the lots thus conveyed to John E. Corwith, or their proceeds when sold, with the same trusts under which Nathan Corwith held the trust estate vested in him by the will of Charles J. Wyeth. They, or their proceeds, like the original trust fund, were thereby conveyed in trust for distribution in precisely the same way, and to precisely the same distributees, so that, in case of the death of both the two sons without issue before reaching the age of twenty-five years, the cousins named in the will would have become the beneficiaries of the fund thus created, and would have been entitled to distribution thereof according to the terms of the will.
John E. Corwith having declined to execute the trust, a proceeding was instituted in the Circuit Court of Cook county, for the appointment of a successor in trust. Neither at that time, nor at the time of filing the bill in this case, had either of the two sons of the testator reached the age of twenty-five years. The parties and the only parties to that proceeding were Leonard J. Wyeth and Nathan C. Wyeth, complainants, the latter being then a minor and appearing by his next friend, and Nathan Corwith and John E. Corwith, defendants. The bill alleged that the estate held in trust had all descended, by the terms of the will, to the two complainants, and that they were the sole owners and beneficiaries thereof, and although the will was appended- to the bill as an exhibit, no mention was otherwise made of the rights or interests of those who were named in the will as beneficiaries in the event of the death of both the sons without issue before arriving at the age of twenty-five years.
The decree followed the bill, by ordering that Charles A. Street be appointed trustee of the estate of the complainants therein, and of the equitable interests and effects belonging to them or held in trust for them at the commencement of the suit, or in which they had any beneficial interest whatever, and the Corwiths were ordered to assign, transfer and deliver to the trustee thus appointed, all such property real and personal.
It is difficult to see how the contingent rights of the testator’s cousins were in any way affected by these proceedings. Their rights were not presented by the bill for ajudieation, and they were not made parties, or if they can be treated as being before the court by representation, the decree does not attempt to make any disposition of them. Street was appointed trustee of the equitable interests of the two sons in the trust fund, and that seems to be the extent of the trusteeship. The decree does not in terms appoint him the successor in trust of the trustee appointed by the will, hut only trustee of such interests in the trust as were vested in the sons. The impression in the'minds of both the parties and the court seems to have been, that the equitable rights of the two sons were all that were to be regarded, and as a consequence, the contingent rights of other possible beneficiaries were wholly ignored.
"We are of the opinion that the peculiar form of the bill and decree in the proceeding under which Street was appointed trustee was such as to cast a reasonable doubt upon the sufficiency of the title which he was then able to convey. -At the time the contract now sought to be enforced was, by its terms, to be performed, and at the time the bill in this case was filed, neither of the testator’s two sons had reached the age of twenty-five years, and both were unmarried. There was then a possibility that they might both die without issue before reaching that age, and in that event, there was strong reason to apprehend that the title conveyed by Street would have failed. This was a risk which the purchaser was not called upon to take upon himself. He would at least have run the risk of doubtful litigation with those who, in that event, would have become the beneficiaries of the entire fund, and whose rights were not affected by the proceeding to appoint the complainant to the position of trustee.
It may be that now, since one of the sons has reached the age of twenty-five years, and the possibility of the testator’s cousins ever becoming entitled as beneficiaries having thereby become extinguished, the title which Street holds has become relieved of the defect formerly existing, but that fact can not affect the decision of this case. The right of Street to a decree of specific performance must be determined in accordance with the condition of things existing at the time the bill was filed, and at that time, in our opinion, Street was not able to convey a title which was free from reasonable doubt, or which would not expose the purchaser to substantial litigation.
Our conclusion is, that the decree of the Circuit Court is correct, and it will be affirmed.
Decree affirmed.