Dart v. Hercules

• Decision Date: 30 September 1870
• Citation: 1870 WL 6652,57 Ill. 446
• Parties: LUCIUS M. DARTv.CHRISTOPHER HERCULES et al.
• Court: Illinois Supreme Court

57 Ill. 446

1870 WL 6652 (Ill.)

LUCIUS M. DART

v.CHRISTOPHER HERCULES et al.

Supreme Court of Illinois.

September Term, 1870.

APPEAL from the Circuit Court of Woodford county; the Hon. S. L. RICHMOND, Judge, presiding.

Messrs. CLARK & FOSDICK, for the appellant.

Mr. N. J. PILLSBURY, and Mr. A. E. HARDING, for the appellees. Mr. JUSTICE SCOTT delivered the opinion of the Court:

This was a bill in chancery, exhibited by the appellant in the circuit court of Woodford county, to enforce the specific performance of an alleged verbal agreement on the part of the county of Livingston, to sell to him a certain tract of land described in the original and the amended bills, and to enjoin an ejectment suit then pending and undetermined in said court, for a part of said tract of land, commenced by the appellee Hercules, against the terre-tenants of appellant.

The appellant alleges in his amended bill, that in May, 1859, he applied to Woolverton, the agent and commissioner for the county, to purchase the northeast quarter of sec. 18, town 27 north, range 8 east, and that the agent, by a verbal contract, sold him the land for the sum of $5 per acre, on the terms proposed by the county for the sale of swamp lands, and the appellant set out the conditions of the verbal contract as follows:

“On condition that he do the drainage necessary to reclaim the land at his own expense, over and above said price, within five years from the date thereof, to the satisfaction of the supervisors of said county; and that he improve, by cultivation or enclosure, one-half thereof within said five years, and to improve at least one-tenth part yearly until one-half thereof shall be improved to the satisfaction of said board of supervisors.”

It is further alleged, that the appellant had borrowed the principal sum to be paid for the land, for five years, for the use of which he was to pay interest at the rate of five per cent per annum, interest to be paid annually, in advance. It is further alleged that, at the time of the making of the alleged contract, Woolverton was at his residence, and not at his office or place of business, and that it was then and there expressly agreed by both parties that appellant was to take immediate possession of said tract of land, and at once commence to improve the same, and to return in 60 days from that date and pay to said agent, for the use of said county, the sum of five per cent interest for one year on the purchase money, and that then appellant was to receive a contract in writing for the conveyance of said land to him.

It appears that after the making of the alleged contract by the appellant with the county, at the rate of $5 per acre, the board of supervisors, by an order entered of record, reduced the price of all swamp lands, and the appellant now insists that he is entitled to the benefit of such reduction on the lands, which he alleges he purchased of the county, and for that reason does not tender with his bill the price that he said he agreed to pay for the land, but tenders only the reduced price fixed by the late order of the board of supervisors.

The answer denies all the material allegations of the bill, and insists that the contract, if any was made, was within the statute of frauds, and therefore void. On the hearing, the bill was dismissed, and appellant brings the cause to this court by appeal.

It appears that before appellant applied to the county agent to purchase the tract of land in controversy, it had been sold to one Delos W. Hunt, and a certificate of purchase had been given to him under the rules and regulations established by the county court for the sale of swamp lands belonging to the county. This fact was known to the appellant when he applied to Woolverton, the agent of the county, to purchase the land. But he insists that the county agent then told him that Hunt had forfeited his contract, and that he agreed to sell him the land by a verbal contract, and directed him to go and take possession of the land, and to return within 60 days and he would execute to him the usual certificate of purchase. This is denied by the agent, Woolverton, but there is some evidence that strengthens the testimony of the appellant in regard to the contract. But if it be conceded...