Bd. of Supervisors of Henry County v. the Winnebago Swamp Drainage Co.
| Decision Date | 30 September 1869 |
| Citation | 52 Ill. 454,1869 WL 5474 |
| Parties | BOARD OF SUPERVISORS OF HENRY COUNTYv.THE WINNEBAGO SWAMP DRAINAGE COMPANY et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Henry county; the Hon. GEORGE W. PLEASANTS, Judge, presiding.
The opinion sufficiently states the case.
Messrs. SHAW & CRAWFORD, for the appellants.
Messrs. BENNETT & VEEDER, Mr. GEORGE E. WAIT and Mr. IRA O. WILKINSON, for the appellees.
This was a suit in chancery, brought by appellants, in the Henry circuit court, against appellees, for a specific performance of a contract entered into by the parties for the drainage of the swamp and overflowed lands in Henry county. The bill alleges that the general assembly, by an act adopted on the fourteenth day of February, 1855, incorporated appellees as The Winnebago Swamp Drainage Company, with the powers necessary to accomplish the purposes of their creation; that the general assembly, having given the lands to Henry county, and to reclaim the lands, and to add to the salubrity of the adjacent country, the county entered into an agreement with the company, by which the latter undertook, by a proper system of drainage, to reclaim the lands; that, for the purpose of carrying out the arrangement, the county conveyed the lands to the company, who agreed to perform the labor and pay the county the sum of $20,000, to be paid in ten years, with interest; that the company had failed to construct the work, but had divided the lands among the members of the corporation, without the members paying any consideration for the same; that a portion of the members of the corporation had died, but that their share had descended to their children and heirs; that the stockholders had sold a part of the lands.
The bill prays that defendants be required to perform their agreement by draining the lands, and on their failing to do so, that such lands as have not passed into the hands of innocent purchasers be sold, and the proceeds be placed in the hands of a receiver, to be by him paid to the drainage commissioners of the several towns in which the lands are situated.
Appellees demurred to the bill, and assign as causes, that the relief sought is barred by the statute of limitations; that appellants sold the lands to appellees for general revenue purposes, and thereby parted with all control over the subject of their drainage; that appellants can, in no event, maintain the suit; that specific performance can not be decreed under the contract, for the want of mutuality between the parties, and because the contract is too vague, uncertain and indefinite to be enforced; that to grant the prayer of the bill, the court would have to make a contract for the parties, and for want of proper parties. The court below sustained the demurrer, and rendered a decree dismissing the bill, and the record is brought to this court to reverse that decree. We shall consider the grounds of demurrer in the order in which they are specified. It, at one time, seems to have been held that the bar of the statute of limitations could not be insisted upon by demurrer, but must be interposed by way of plea, but the doctrine is now settled that, if it appears on the face of the bill, and no circumstances are alleged to take the case out of the statute, the bill will be obnoxious to a demurrer. Story's Eq. Pl. sec. 503, 751. It appears, from the allegations of the bill, the contract was entered into in March, 1856. From an examination of the agreement, it appears no time was fixed within which appellees were to complete the drainage of the lands referred to in the agreement. But, even if it was, there has not been such a lapse of time as would bar an action at law on the written agreement. A suit could be instituted on it at any time within sixteen years after a default had occurred. A suit in equity will always lie when an action at law would not be barred. Equity follows the law in regard to the application of the statute.
It is next urged, the county sold the lands for general revenue purposes, and thereby lost all control over their drainage, or right to insist upon appellees proceeding to drain the same. It appears the parties entered into an agreement on the eighth of March, 1856, by which the county agreed to convey the lands to appellees, and they agreed to execute their notes for $20,000, secured by a mortgage on the lands, and to drain the lands, so far as the same might be practicable. This was the consideration of the purchase. In pursuance of the agreement, the county conveyed the lands and the deed was accepted. The county, no doubt, sold the lands at a reduced price in consideration that the drainage should be made. There was, no doubt, a large deduction made for that reason. It may have been, and we can well presume it was, the controlling consideration for the conveyance.
Here was a large body of lands which were swamp and overflowed, and until reclaimed not only useless, but calculated to produce disease. By reclaiming them, the health of that county would, no doubt, be improved, and the land become productive, and not only the health, but the prosperity of the county advanced. And here was a large trust fund, in the hands of the county, to be managed by its authorities for this or other purposes. We can see that they would be anxious to accomplish the purpose, and at the same time increase the county revenues. We must conclude that appellees believed the lands were worth the cost of drainage and $20,000, and that they so regarded it, is manifest from their agreement with the county. The agreement to drain these lands entered as fully into and formed a portion of the consideration for the conveyance as did the money they agreed to pay. The agreement renders this so manifest that there is no possible escape from the conclusion. The parties have, in terms, said it was, and reasoning can not render it plainer or more conclusive. This is not like conversations which precede a written agreement, and are supposed to have merged in the agreement, or been abandoned, and hence can not be shown to vary or contradict the writing. In this case, the agreement was written and consummated by the parties, and the execution of the deed and notes was in pursuance of, and not to the destruction of the agreement. After they were executed, the other portions of the agreement were neither fulfilled nor destroyed. They remained in full force and binding as before.
But it is said that the agent inserted that part of the agreement without authority, he not being...
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