Benjamin v. Greeley
Decision Date | 30 September 1874 |
Citation | 75 Ill. 400,1874 WL 9262 |
Parties | BENJAMIN V. PAGE et al.v.SAMUEL S. GREELEY. |
Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding.
This was a bill in equity, brought by Page and Sprague, appellants, as vendors, against Greeley, as vendee, to enforce specific performance of a contract made between the parties March 30, 1871, for the exchange of houses and lots situate in the city of Chicago, upon certain terms and conditions therein specified. The agreement was executed only by Page of the one part and Greeley of the other part. It contained a provision for the completion by Page of a house in the process of erection on his lot, and that Greeley might take possession as soon as it was completed; also the following:
The bill sets out this provision according to its legal effect, alleges that complainants in May, or June, 1871, furnished defendant with abstracts of title to their lot, made from the records of Cook county by competent abstract makers; that such abstracts showed a good and indefeasible title, legal and equitable, in complainants; that John Borden, Esq., an attorney at law, was employed by defendant to examine the abstracts so furnished, and he declared the title, as shown by them, good. The bill alleges that defendant entered into possession after the abstracts were so furnished him, and exercised acts of ownership, but contains no allegation as to any defect of title or objection to the abstracts, or that defendant intended to, or did, waive, expressly, or by implication, any objections to the title; nor is any title in complainants stated or relied upon, except a good indefeasible title of record.
The defendant, by his answer, denied the allegation of title in complainants, or that it was declared to be good by said attorney.
On the hearing, the abstracts furnished were produced in evidence, by consent, as showing the state of the title, without accounting for, or the production of, the records. From them it appears that complainants claim to derive title from Walter S. Newberry. The latter, in his lifetime, entered into a contract of sale, and received part of the purchase money, but died before a deed was made, leaving a will appointing Skinner and Blatchford his executors and trustees, authorizing them to sell and convey, lease, or otherwise dispose of, his real estate. Under this power, the trustees executed a deed January 4, 1871, to Page. It also appeared from the abstracts that Newberry had title of record to only an undivided half--the other appearing to have been in one Robert Campbell.
It also appeared that defendant's attorney, who examined the abstracts, instead of declaring the title good, gave it as his opinion that it was not good of record; that the abstracts showed title in Newberry only to an undivided half, and there was great doubt whether the power given the trustees by his will to sell, convey, and lease, applied to a case where the testator had previously entered into a contract of sale.
The complainants introduced testimony showing that Robert Campbell died in Cooperstown, N. Y., Aug. 30, 1847, leaving a widow and two children; adverse possession in Newberry under the statute of limitations.
The court below dismissed the bill, and complainants appealed to this court, here insisting that although complainants did not have a good title of record, yet a title by adverse possession under the statute of limitations was shown, with sufficient certainty to entitle them to have specific performance of the contract. That appellee, having gone into possession, thereby waived all objections to the title.
Messrs. WILLIAMS & THOMPSON, for the appellants.
Messrs. KING, SCOTT & PAYSON, for the appellee.
The appellants, as vendors, set forth the legal effect of the agreement, which they were asking the court to specifically enforce, to be, that they were to furnish the appellee, the vendee, abstracts of title to the premises, made from the records of the county by competent abstract makers, and if the title thus shown was approved by the vendee's attorney, they were to convey. They allege the furnishing of such abstracts, from which it appeared that their title was good and indefeasible, at law, and in equity, and that vendee's attorney approved it. There is no allusion to any other title than such a title of record, nor is there any allegation that the vendee intended to, or did, waive all objection thereto; for they in no respect assume that there was any defect of their record title. When it turns out that their title of record was defective to the extent of an undivided half of the premises, which must have been known before the bill was filed, and that vendee's attorney did not, in fact, approve, but, on the contrary, condemned their title as shown by the abstract, they claim that, irrespective of their covenant to exhibit and convey a good title of record, irrespective of the allegations of the bill that they, in fact, and in law, had such a title, they were entitled to specific performance under that bill, by showing a title depending upon adverse possession, under the statutes of limitations, or in other words, upon a title based upon...
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