Christy v. Executors

• Decision Date: 31 January 1864
• Parties: ANDREW CHRISTYv.LUCY OGLE'S Executors.
• Court: Illinois Supreme Court

33 Ill. 295

1864 WL 2921 (Ill.)

ANDREW CHRISTY

v.LUCY OGLE'S Executors.

Supreme Court of Illinois.

January Term, 1864.

APPEAL from Circuit Court of St Clair county.

Assumpsit by the executors of Lucy Ogle, deceased, against A. Christy, upon a certain written instrument, which is as follows:

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                ¦“$3,500.¦BELLEVILLE, June 12, A. D. 1854.¦
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Four years after date I promise to pay Lucy Ogle, or order, three thousand five hundred dollars on condition that she, by her last will and testament, devise to me the real estate situate in St. Clair county, which is described in a certain deed by her to me, bearing date June 12, A. D. 1854.

A. CHRISTY.”

The remaining facts are sufficiently stated by the court.

J. Baker, for appellant.

Underwood & Noetling, for appellee.

CATON, C. J.²

The deed for which it is stipulated this note was given, is in the usual form, and contains a covenant of general warranty, and also a covenant against incumbrances. The deed professes to convey the premises presently, and is absolute. The grantor held the premises under the will of her late husband. And we have decided under the peculiar wording of that will that she had an inalienable life estate in the premises, which did not pass by the deed; ¹ and it is now insisted by the maker of the note, who is the grantee in the deed, that the consideration of the note has failed to the extent of the value of such life estate.

Two questions arise here: First, was the covenant against incumbrances broken? and second, if it was, then was there a partial failure of the consideration? It seems impossible to answer either of these questions in the negative. The deed purported to take effect immediately. It professed to convey an estate immediately, and would have conveyed it had the grantor been capable of conveying such an estate. This she did not and could not do. As to the life estate, the deed was as inoperative as if it had been vested in a third person. Had this life estate been vested in a third person it would have been an incumbrance, and the covenant against incumbrances would have been broken instantly. Upon this point there is, and can be, no controversy. Is it any different because she held the life estate? Clearly not. The effect and consequences must be precisely the same in either case. Here was the incumbrance of the life estate still subsisting against the deed, which she did not and could not convey by it, and so, necessarily, the covenant was...