Bauerle v. Long

• Decision Date: 23 November 1896
• Citation: 46 N.E. 227,165 Ill. 340
• Parties: BAUERLE v. LONG et al.
• Court: Illinois Supreme Court

165 Ill. 340

46 N.E. 227

BAUERLE

v.LONG et al.¹

Supreme Court of Illinois.

Nov. 23, 1896.

Appeal from circuit court, Cook county; John B. Payne, Judge.

Suit in equity by Andrew Long and others against Michael Bauerle. Decree for plaintiffs. Defendant appeals. Affirmed.

Sess. Laws Ill. 1872, p. 333, § 23, provides: ‘Every defendant shall answer fully all the allegations and interrogatories of the complainant, whether an answer on oath is waived or not, except such as are not required to be answered by reason of exceptions, plea or demurrer thereto allowed.’

Williams & Kraft, for appellant.

Dow, Walker & Walker, for appellees.

PHILLIPS, J.

The Pennsylvania Company for Insurance on Lives and Granting Annuities, a corporation organized and doing business under the law of the state of Pennsylvania, with others, were executors of the will of John H. Schoenberger, and entered into a contract with the appellant by which they, as executors, were to convey to appellant 80 acres of land in Cook county for the sum of $240,000. The appellant paid them the sum of $5,000, as earnest money, and they were to submit an abstract of title to appellant for examination. Certain objections were made to the title by the appellant, and the executors filed a bill for specific performance, and a demurrer thereto was sustained, and the bill dismissed, for want of equity. That decree was affirmed by this court. Pennsylvania Co. v. Bauerle, 143 Ill. 459, 33 N. E. 166. In that case it was held: ‘The power to sell and dispose of real estate, and to execute deeds of conveyance therefor, and to convert the same into money, having been delegated by the will to the four appellants jointly, as executors, and they all having accepted the trust and qualified as executors, we think that a deed made by three only of the executors is not a good execution of the power in the will. It appearing that the Pennsylvania Company, the other trustee and executor, still survives, as a going corporation, and that it has not resigned or been discharged from its office as trustee and executor, or been removed from its trust position by the order or decree of any competent court, waiving the matter hereinafter considered, it would seem that, in order to convey to appellee a good and valid title to the land here in question, the Pennsylvania Company must either procure from the auditor of public accounts a certificate of authority stating that it has complied with the requirements of the statute of this state, and then join with its coexecutors in the executionof a deed of conveyance, or else in some proper way shake off the trust, and absolutely divest itself of the title, discretion, and power that the will gives it in respect to the land situate in this state; thus leaving the co-executors in a position, as surviving executors, where they can lawfully act in the premises.’ After that opinion was announced, the corporation, by certain proceedings before the orphans' court of the county of Philadelphia, in the state of Pennsylvania, renounced its right to act as trustee or executor in the state of Illinois, and an order was entered in that court granting leave so to do. Thereupon the remaining executors and trustees under said will filed this bill in the superior court of Cook county, in which it further set forth that the said Pennsylvania Company for Insurance on Lives and Granting Annuities having renounced its right to qualify in the state of Illinois as executor of the last will of said deceased, and its right to act as trustee under said will in said state, and having filed a renunciation of such right in the office of the register of wills in the county of Philadelphia, in the state of Pennsylvania, and thereby shaken off the trust, and absolutely divested itself of the title, discretion, and power to act under said will as to the lands in the state of Illinois, and a certified copy of said renunciation and said proceedings having been recorded in Cook county, Ill., the orators herein are therefore left, as surviving executors, to act in the premises, and that they are ready and willing, with leave of court first obtained, to enter into a new contract with the said Bauerle in all substantial respects like the one made on or about the 14th of August, 1890, a copy of which is hereto attached, market ‘Exhibit B,’ which is the same contract mentioned in the case above cited. This bill then alleges that the orators believe it to be for the best interest of the estate that said property should be sold to said Bauerle upon terms and conditions similar to those contained in said contract, Exhibit B, and they ask leave to sell and convey said property, and have leave to enter into a new contract with said Bauerle, upon similar terms and conditions to those contained in said contract, Exhibit B; that the price offered therefor by said Bauerle was and is a reasonable price to be paid for said estate, and the property was, at the time the original contract was made, vacant and unimproved, and that the price agreed to be paid in said contract was then a fair and reasonable price and value for said property, and is still a fair and reasonable value, in view of all conditions and circumstances pertaining thereto; that the orators are informed and believe that, after making said original contract, Bauerle took possession, and has ever since held possession, of said described property, and has made certain improvements thereon, but without authority or right so to do; that he caused it to be subdivided into lots, blocks, streets, and alleys, and acknowledged the plat, but that said plat is void without the orators' consent thereto, which consent has never been given; that Bauerle has caused the contract, Exhibit B, to be recorded, and the said receipt of $5,000 paid by said Bauerle upon the contract to be recorded; and that the recording of said plat and of said contract constitutes a cloud upon the title of the orators to said premises, and ought to be removed. The prayer of the bill was that said Bauerle be compelled either to renew with the orators as surviving executors, and then specifically to perform the said agreement, Exhibit B, or...