Chicago Title & Trust Co. v. Zinser

• Decision Date: 16 June 1914
• Docket Number: No. 9480.,9480.
• Citation: 264 Ill. 31,105 N.E. 718
• Court: Illinois Supreme Court
• Parties: CHICAGO TITLE & TRUST CO. v. ZINSER et al.

264 Ill. 31

105 N.E. 718

CHICAGO TITLE & TRUST CO.

v.ZINSER et al.

No. 9480.

Supreme Court of Illinois.

June 16, 1914.

Appeal from Superior Court, Cook County; John M. O'Connor, Judge.

Suit by the Chicago Title & Trust Company against Joseph Zinser and another. Decree for complainant, and defendants appeal. Affirmed.

Percival Steele, of Chicago, for appellants.

Wilson, Moore & McIlvaine, of Chicago (N. G. Moore, of Chicago, of counsel), for appellee.

CARTWRIGHT, C. J.

The appellee, the Chicago Title & Trust Company, commenced this suit by filing its bill in the superior court of Cook county against the appellants, Joseph Zinser and Mary Zinser, to compel the specific performance by the appellants of a contract made by it, as executor of the last will and testament of Etta Nelson, deceased, with the appellants for the sale to them of a lot in Chicago, known as 406 South Campbell avenue. The chancellor overruled a demurrer to the bill, and, the appellants standing by their demurrer and refusing to answer further, a decree was entered in accordance with the bill. An appeal to this court was allowed and perfected.

[1] The facts alleged in the bill and admitted by the demurrer are as follows: Etta Nelson, who was the owner in fee of the lot in question, died on May 14, 1913, and by her will nominated the Real Estate Title & Trust Company of Chicago as executor, and authorized it to sell and convey, as executor, the real estate of which she died seised. When the will was made, on May 31, 1912, the Real Estate Title & Trust Company and the Chicago Title & Trust Company were two corporations organized under the laws of this state, each having authority to accept and execute trusts and to be appointed assignee or trustee by deed and executor, guardian, and trustee by will, and each had complied with all laws governing corporations organized for such purposes. After the making of the will, and before the death of Etta Nelson, the two corporations were consolidated into one, under the name of Chicago Title & Trust Company, by virtue of the statute authorizing such consolidation. The will was admitted to probate and letters testamentary were issued to the complainant,the Chicago Title & Trust Company, the corporation created by the consolidation. On January 19, 1914, the complainant, as executor of said will, entered into an agreement in writing with the defendants, Mary Zinser and Joseph Zinser, by which it agreed to sell said lot to the defendants for $950 and to convey the same to them by executor's deed, and the defendants agreed to purchase the lot for said sum and paid $10 earnest money. The complainant was to furnish an abstract of title and the defendants to have five days to examine it, and if they failed to perform the contract they were to forfeit the $10 as liquidated damages. No tender of a deed was to be required, but a notice addressed to 406 South Campbell avenue, deposited in the post office, postage prepaid, that the deed was ready for delivery was to have the force and effect of a tender. An abstract of title was furnished, and on January 30, 1914, the defendants delivered to the complainant a full and carefully prepared statement designed to raise the question whether the complainant was entitled to act as executor or trustee in cases where the Real Estate Title & Trust Company had been nominated for that purpose. The defendants therein stated that they did not raise any question of the sufficiency of the title except upon the point above mentioned and had no criticism to make of the form of deed which had been tendered to them, but declined to accept the deed or pay the money provided by the contract until a deed should be made, executed, and tendered by some person or corporation having power to act under the will. The bill was filed on February 11, 1914, and set out at length the proceedings for the consolidation of the two corporations as well as the above stated facts.

In the case of Chicago Title & Trust Co. v. Doyle, 259 Ill. 489, 102 N. E. 790,47 L. R. A. (N. S.) 1066, the appellee contended that the Real Estate Title & Trust Company, which was nominated as executor of the will of Etta Nelson, had been merged into and absorbed by the original Chicago Title & Trust Company, which remained in existence and continued its former corporate life without dissolution or interruption, leaving the Real Estate Title & Trust Company without property, stock, stockholders, or franchises. The corporations had attempted to give to the consolidation the form...