Cowan v. Kane

• Decision Date: 24 October 1904
• Citation: 71 N.E. 1097,211 Ill. 572
• Parties: COWAN v. KANE et al.
• Court: Illinois Supreme Court

211 Ill. 572

71 N.E. 1097

COWAN

v.KANE et al.

Supreme Court of Illinois.

Oct. 24, 1904.

Appeal from Superior Court, Cook County; M. Kavanagh, Judge.

Suit by James E. Cowan against Teresa Kane and another. From a decree for defendants, plaintiff appeals. Reversed.

Horace Kent Tenney and James H. Wilkerson, for appellant.

Alexander Sullivan, Edmond McMahon, and Frank L. Kriete, for appellee Teresa Kane.

CARTWRIGHT, J.

The appellant, James E. Cowan, filed his bill in this case in the superior court of Cook county against the appellees, Teresa Kane and William A. Pridmore, a real estate agent, praying that a contract purporting to be made by Cowan and Teresa Kane for the conveyance by him to her of two lots in Chicago for $10,000, and appearing of record in the recorder's office of said county, should be declared null and void and delivered up for cancellation, and be removed as a cloud from his title, because of fraud in procuring its execution by him, and because it was not executed by her or by her authority. The bill was answered, and Teresa Kane filed her cross-bill, setting out the alleged contract, averring that she appointed Richard Curran as her agent and authorized him to sign her name to the contract, and praying for a specific performance thereof. Cowan answered the cross-bill, again alleging false and fraudulent representations of Pridmore, denying the execution of the contract by Teresa Kane and the alleged agency of Curran, alleging that any authority of Richard Curran to act as agent was not in writing and was void under the statute of frauds, and insisting that Curran was the principal and that Teresa Kane was not the real party in interest. The chancellor heard the evidence, and entered a decree finding that the contract was signed by Curran for Teresa Kane by virtue of oral authority; that, while the property was to be taken by Teresa Kane in her own name, it was to be held for the sole use and benefit of Curran; and that it was intended the covenants contained in the contract to be performed on the part of Teresa Kane were in truth and in fact to be performed by Curran. The contract provided for a deposit of $500, a payment of $2,500 on delivery of the deed, and the execution of a mortgage or trust deed for $7,000, due on or before six months from date. There was evidence that the deposit was made, and that a check for $2,500 was afterward offered to Pridmore and withdrawn after a few days, and, on the hearing before the chancellor, $9,500 in currency was tendered to Cowan for the balance of the purchase money over the $500 deposited with Pridmore. The chancellor found and recited in the decree that Curran made these tenders and payments from his own funds, and it was ordered that the contract be specifically performed; that Cowan execute and deliver to Teresa Kane within 30 days, upon a tender of the balance of the purchase money due or to be found due under the provisions of the decree, a good and sufficient general warranty deed conveying title in fee to the premises described in the contract; that upon delivery of such conveyance Teresa Kane should pay to Cowan the sum of $9,500; that, if Cowan should not execute a deed including the dower of his wife, the value of her dower should be ascertained by a master in chancery, and that the value so ascertained should be deducted from $9,500, and a conveyance of the interest of Cowan should be executed by the master in chancery divesting him of all his title to the real estate, and conveying the same to Teresa Kane upon payment to the master, for the use of Cowan, of such sum as should be so found due.

The decree must be reversed. The alleged contract provided for a conveyance by a good and sufficient general warranty deed conveying good title to the premises. Cowan has a wife having an inchoate right of dower, and such a right is an incumbrance within the terms of a general warranty deed. McCord v. Massey, 155 Ill. 123, 39 N. E. 592. When a party has contracted for a title free from incumbrance, he is not required to accept a deed subject to an inchoate right of dower, but if he is willing to accept a part performance he may do so, and the seller will not be permitted to take advantage of a defect in his title. The purchaser is entitled, in equity, to such a deed as the seller can give, with a proportionate abatement of the price if the amount of the deduction can be ascertained. That question, however, can never be referred to a master in chancery for his determination. That would be the exercise of judicial power, which a chancellor cannot confer upon a master in chancery. He is but a ministerial officer, and a chancellor alone can determine and adjudge the rights of parties. It was held in Wilhite v. Pearce, 47 Ill. 413, that a master in chancery has no right to determine the amount of a lien upon the land involved in a partition suit for want of power to...