Conway v. Case

• Decision Date: 30 April 1859
• Citation: 22 Ill. 127,1859 WL 6840,12 Peck 127
• Parties: MILES W. CONWAY, Plaintiff in Error,v.COVELL CASE, Defendant in Error.
• Court: Illinois Supreme Court

22 Ill. 127
1859 WL 6840 (Ill.)
12 Peck (IL) 127

MILES W. CONWAY, Plaintiff in Error,
v.
COVELL CASE, Defendant in Error.

Supreme Court of Illinois.

April Term, 1859.

ERROR TO ROCK ISLAND.

A tender of money will be presumed sufficient if not objected to.

A party who contracts to give a deed with a covenant against incumbrances, does not meet his obligation, by offering such a deed, if the property is actually incumbered.

Proof of an incumbrance may be shown by the record. And if the mode of proof is irregular, that mode must be objected to so that another may be adopted.

It will be presumed that all proper preliminary proof was made to the introduction of the record, as evidence, unless the contrary appears.

Parties should make specific objections in the Circuit Court to the introduction of evidence, if the propriety of its introduction is to be questioned in the Supreme Court.

The cancellation of a check upon, and its retention by, a bank, is evidence of the payment of it.

At law, time is of the essence of a contract to convey land, and if the vendor is not able to perform on the day, the vendee may consider the contract at an end.

THIS was an action of assumpsit counting upon the following promissory note:

+------------------------------------------+
                ¦$1,680.¦Rock Island, March 5 th, 1856.¦
                +------------------------------------------+
                

On or before the tenth day of October, A. D. 1857, I promise to pay Miles W. Conway, or order, at the Rock Island Bank, in the city of Rock Island, the sum of one thousand six hundred and eighty dollars, with interest, for value received.

+---------------------+
                ¦Signed,¦COVELL CASE. ¦
                +---------------------+
                

The declaration contained the common counts.

The defendant pleaded as follows:

1. The general issue.

2. And the said defendant, for a further plea in this behalf, by leave of the court for that purpose first had and obtained, says, actio non, because he says that simultaneously with the making and delivery to the said plaintiff by the said defendant, of the said promissory note in the said declaration mentioned, to wit: On the fifth day of March, A. D. 1856, at the said county of Rock Island, the said plaintiff executed and delivered to the said defendant his certain bond or writing obligatory, sealed with his seal, and now to the

[22 Ill. 128]

court here shown, the date whereof is the day and year aforesaid, whereby the said plaintiff agreed, in consideration of the payment by the said defendant to the said plaintiff, of the sum of one thousand six hundred and eighty dollars, to be paid on or before the tenth day of October, A. D. 1857, to convey to the said defendant, upon the payment of said sum of money at or before the day last aforesaid, by a good and sufficient deed, with full and proper covenants of warranty, and free and clear of all incumbrance, that certain lot, piece or parcel of land situate in the city and county of Rock Island, and State of Illinois, known as lot five in block nine, in the original or old town of Stephenson (now city of Rock Island,) as by the said bond or writing obligatory, now here brought into court, will more fully appear; and the said defendant avers that the said promissory note was made and given by the said defendant for the purchase money, price or consideration for the lot or tract of land in the said bond or writing obligatory described, and in consideration of the said agreement of the said plaintiff, by his said bond, to convey the same as aforesaid to the said defendant, and for no other purpose, intent or consideration whatever; and the said defendant further avers that afterwards, to wit, on the said tenth day of October, A. D. 1857, and at the county aforesaid, he, the said defendant, was ready and willing and offered to pay, and then and there tendered to the said plaintiff the said sum of one thousand six hundred and eighty dollars, and then and there requested and demanded of the said plaintiff a good and sufficient deed of said lot or tract of land hereinbefore described, with full and proper covenants of warranty, and free and clear of all incumbrance, yet the said plaintiff did not nor would execute and deliver, and hath not as yet executed and delivered to the said defendant a good and sufficient deed of said lot or tract of land, with full and proper covenants of warranty, and free and clear of all incumbrance, but hath hitherto neglected and refused so to do; and this the said defendant is ready to verify; wherefore he prays judgment, etc.

And for a further plea in this behalf, by leave, etc., the said defendant says actio non, because he says that before the making and delivery of the said promissory note in the said declaration mentioned, to wit, on the fifth day of March, A. D. 1856, at the county of Rock Island aforesaid, the said plaintiff, in consideration of the

[22 Ill. 129]

payment to him, by the said defendant, of the sum of three hundred and sixty-six dollars, by his certain bond or writing obligatory, bearing date the day and year aforesaid, and which is now here brought into court, sealed with the seal of the said plaintiff, acknowledged himself to be held and firmly bound unto the said defendant, in the penal sum of three thousand three hundred and sixty dollars, for the payment of which well and truly to be made he thoroughly bound himself, his heirs, executors and administrators, and every of them, to which said bond or writing obligatory, there was and is annexed a recital and condition whereby it was recited that the said plaintiff had that day agreed to sell to the said defendant the following described lot or tract of land situated in the city and county of Rock Island, and State of Illinois, known as lot five, in block nine, in the original or old town of Stephenson, (now city of Rock Island,) on condition that the said defendant should pay to said plaintiff the sum of one thousand six hundred and eighty dollars, on or before the tenth day of October, A. D. 1857, at the Rock Island Bank in the city of Rock Island aforesaid, for which the said defendant had given his promissory note, and was provided that if the said defendant should pay said note at maturity without any delay or defalcation, and should, in the meantime, pay all taxes on said land, and the said plaintiff should, upon the completion of said payment, make, execute and deliver to the said defendant, a good and sufficient deed, with full and proper covenants of warranty, free and clear of all incumbrance, then the said bond or writing obligatory should be void, otherwise should remain in full force and virtue--and that time should be deemed material and of the essence of the contract in said bond set forth. And the said defendant avers that he then and there paid to the said plaintiff the said sum of three hundred and sixty-six dollars, and made and delivered to the said plaintiff his promissory note for the said sum of one thousand six hundred and eighty dollars, payable on or before the tenth day of October, A. D. 1857, which was the same note mentioned in the said bond or writing obligatory, and in the said plaintiff's declaration herein, and was made and given for the consideration aforesaid, and none other.

And the said defendant further avers, that he paid, and was willing and liable to pay, all taxes on said land, between the day of

[22 Ill. 130]

the date of the said bond or writing obligatory and the tenth day of October, A. D. 1857, and on the said...