Chappell v. Mcknight
| Decision Date | 23 January 1884 |
| Citation | 108 Ill. 570,1884 WL 9751 |
| Parties | ROBERT CHAPPELLv.J. T. MCKNIGHT. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Knox county; the Hon. ARTHUR A. SMITH, Judge, presiding.
Messrs. MCKENZIE & CALKINS, for the appellant.
Messrs. WILLIAMS & LAWRENCE, for the appellee.
This was an action of ejectment commenced by appellee in the Knox circuit court, against appellant, to recover a part of two lots in the city of Galesburg. The case was submitted to the court for trial, by consent, without a jury. Having heard the evidence, the court found the issues for the plaintiff, and after overruling a motion for a new trial, rendered judgment in his favor. Defendant thereupon brings the case to this court on appeal.
The material facts in the case are, that Mrs. S. W. Ferris died testate, seized of the property in controversy. By her will she devised her property to her children, and she appointed her sons, Samuel and Henry E. Hitchcock, executors of her will, but they never qualified, or obtained letters testamentary. The will conferred upon them power to sell real estate, and acting under the belief that they could, on the probate of the will, exercise all of the powers it conferred, they did not give bond, or receive letters testamentary on her estate. Soon after her death Samuel and Henry E. placed the property in the hands of Merrill & Orange Comstock, a firm of insurance and real estate agents, to rent or sell, if they could find a purchaser at a price placed on the property by the Hitchcocks. Their appointment as agents was not in writing, but merely verbal. It does not appear that the other heirs were consulted, or ever consented, but on the contrary, Samuel and Henry E. seem to have supposed they were acting under the power contained in the will. Samuel and Henry were not residents of this State, but Samuel resided in Iowa, and Henry in Nebraska. Appellant offered the Comstocks $2250 for the place, and the offer was communicated to the Hitchcocks, but before the offer was accepted one Mathews offered to give $100 more than appellant had offered. The Comstocks informed appellant of the fact, and he at once telegraphed to Henry requesting him to telegraph the Comstocks whether he accepted his offer of $2250. The Comstocks had previously telegraphed the Hitchcocks of appellant's offer, and after Mathews made his offer they telegraphed the Hitchcocks, informing them of it; but before Henry received the telegram he telegraphed the Comstocks to accept appellant's offer, and on the receipt of their last telegram he answered directing them to accept no offer unless he approved it, thus limiting their authority to sell. Samuel, however, knowing of both offers, telegraphed the Comstocks to sell to appellant on his offer. Appellant urged the Comstocks to close the trade, and give him a written agreement, but they declined until they could hear from Henry in answer to their telegram informing him of Mathews' offer; but he pressed his demand until they yielded, and gave him a contract for the conveyance of the property. He paid them $250, and deposited $2000 in bank, to be paid on the delivery of the deed executed by the heirs. Subsequently the heirs all joined in a warranty deed to appellee for the consideration of $2500, and thereupon he commenced this suit to recover the premises.
Appellant insists that he purchased the property and entered under the contract he obtained from the Comstocks, and that he is rightfully in possession, and being so, appellee is not entitled to recover. What, then, is the law arising on this state of facts? The second section of the Statute of Frauds expressly declares that all verbal contracts relating to title to, or any interest in, lands, for more than one year, shall be inoperative. It requires all contracts to be in writing, signed by the owner, or if by an agent, he must be authorized in writing, signed by the owner, and the contract by the agent to be in writing, and signed by him. Here no such authority was conferred on the Comstocks when they were appointed agents to sell, and had there been, it would only have bound Samuel and Henry, as they had no power or authority to bind the other heirs. Samuel and Henry, it seems, acted without reference to the consent or authority from the other heirs. This agreement between the Comstocks and appellant was void, and incapable of being enforced as an entire contract.
But it is claimed that Samuel and Henry are bound, because they directed the Comstocks to sell to appellant on his offer, by telegram, and that was in writing, and signed by them, and that fulfills the requirements of the statute....
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