Baker v. Baker
| Decision Date | 21 October 1918 |
| Docket Number | No. 12223.,12223. |
| Citation | 284 Ill. 537,120 N.E. 525 |
| Parties | BAKER v. BAKER. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, McLean County; Sain Welty, Judge.
Suit by B. F. Baker against J. H. Baker. Decree for complainant, and defendant appeals. Reversed and remanded, with directions.Hall, Martin & Hoose, of Bloomington, for appellant.
Homer, English, of Bloomington, for appellee.
The appellant, J. H. Baker, contracted with the appellee, B. F. Baker, on March 1, 1918, to purchase a farm in McLean county for the sum of $31,200-$300 per acre. Appellee agreed to furnish appellant an abstract of title showing a good merchantable title in appellee. Appellant having declined to accept the showing of appellee as true that he had such a title, appellee filed his bill for specific performance against appellant in the circuit court of said county April 30, 1918. The sole question in the court below was whether the abstract as furnished, or the bill of complaint, showed a good merchantable title. The issue was raised by a general and special demurrer to the bill. The circuit court overruled the demurrer of appellant and entered its decree for specific performance of the contract against appellant and in favor of appellee.
Substantially the following facts are alleged in the bill: On April 23, 1913, George W. Taylor and Elizabeth Taylor, husband and wife, were owners of said land in fee simple, as tenants in common. On said last date George W. Taylor died seised in fee of his undivided one-half interest in said land, leaving a last will and testament ‘in due form of law’ and which was duly and regularly probated in said county. His wife, Elizabeth, was named as executrix in the will, and by the second clause of the will he disposed of his property in the following language:
On June 12, 1914, the W. M. Taylor mentioned in the will, under the style of William M. Taylor, filed in the circuit court of said county a bill to partition said land, making Elizabeth Taylor, individually and as executrix of the will, Helen Smith and her husband, Earl Smith, and George S. Taylor, parties defendant; Helen Smith on that date having no issue born to her. The decree for partition rendered on said bill found that Elizabeth Taylor was seised of the undivided one-half of said premises in fee simple and of a life estate in the remainder after the payment of the debts of George W. Taylor; that Helen Smith and the heirs of her body were seised of an undivided one-sixth of the said premises, and William M. Taylor and George S. Taylor were each seised in fee of an undivided one-sixth of the premises, subject to the life estate of Elizabeth Taylor and to said debts, and partition was thereby decreed accordingly, and that, in case the premises should be sold, the disposition of the proceeds of the sale of the interest of Helen Smith and the heirs of her body should be determined by the order of distribution. Commissioners were appointed to make partition, and upon their report a decree of sale of the premises was entered June 29, 1915. The master in chancery, after giving the notice required by the decree, sold the whole at public auction to Elizabeth Taylor, and, on the approval of the report of sale by the court, executed a deed to her for the premises, which was duly recorded in said county, and she entered into possession thereunder. On November 6, 1915, a decree of distribution was entered in the partition cause, providing that the share due Helen Smith and the heirs of her body ($981.77) should be paid to her in cash, and the report of the master showing payment to her was duly approved. Appellee's bill further charged that on January 23, 1916, Elizabeth Taylor died testate, and by her will, which was duly and regularly probated in said county, devised to appellee the whole of said premises in fee simple absolute, and that under and by virtue of said will he entered into possession of the same. The contract for the purchase and sale of the land was set forth in appellee's bill, with the further averments that he furnished an abstract showing title in him; the tender by him to appellant of a warranty deed to said premises, duly executed; his readiness and willingness to perform the agreement; and the refusal of appellant to comply with his part of the contract, claiming that appellee's title to the premises was not a good merchantable title, etc.
The court erred in overruling appellant's demurrer and in entering a decree for specific performance of the contract. The law is well settled that a court of chancery will not force upon a vendee a title clouded with substantial defects, or one that a purchaser may be required to engage in litigation to defend, or one that he cannot readily dispose of by reason of defects in such title. The rule is also that the sufficiency of an abstract of title, upon a bill for specific performance of a contract requiring the vendor to furnish a good merchantable title, is to be determined as of the date fixed by the contract when the vendor was to furnish the abstract and the deal was to be closed, and not at some time subsequent to the filing of the bill. Smith v. Hunter, 241 Ill. 514, 89 N. E. 686,132 Am. St. Rep. 231.
Neither the bill of appellee nor the bill for partition aforesaid, so far as disclosed by appellee's bill, contains any averment showing who were the heirs at law of the testator, George W. Taylor. The briefs and arguments in this case are entirely silent as to such heirship. However, the third ground of appellant's special demurrer is in this language:
‘The heirs of Helen Smith at her death have an undivided one-third in an undivided one-half of said premises, and have a right to follow the land at her death and partition the same.’
There is no averment in appellee's bill nor any statement or admission in the briefs and arguments of either party to this suit that Helen Smith has or has not had issue of her body since the partition suit was commenced or concluded, or that she is living or dead, other than what appears from the foregoing statement. If we may infer from the allegations of appellee's bill that Helen Smith was the only heir at law of George W. Taylor, then on the date of the filing of the bill for partition, she then having no issue of her body, her interest in the land at that time was a life estate in an undivided one-third of an undivided one-half, and the fee in said undivided one-third was vested in her, subject to be divested by the birth of issue of her body, in which issue the fee would then be vested. This is so because Helen Smith by the will of the testator, George W. Taylor, was devised what is known at common-law as a fee-tail estate. Under section 6 of the Conveyance Act (Hurd's Rev. St. 1917, c. 30) such a devise only gives a life estate to the devisee, and the remainder will pass in fee simple absolute to whom the estate tail would at the death of the devisee first pass. Where the devisee in such a devise has no living issue of her body, the fee descends to the heirs of the testator at his death, and when the contingency happens-i. e., birth of issue to the devisee-the heirs' estate opens to let in the remainder, and it then vests in the issue of her body. Peterson v. Jackson, 196 Ill. 40, 63 N. E. 643. The life estate of Helen Smith was subject to the life estate of Elizabeth Taylor, and the fee interest vested in Helen Smith as an heir of the testator, whether she was the sole heir or one of a number of the heirs of the testator, would at any time be divested by the birth of a child to her.
The contention of appellant is that no merchantable title...
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