Emery v. Mohler

• Decision Date: 30 September 1873
• Citation: 1873 WL 8440,69 Ill. 221
• Parties: CYRUS P. EMERYv.GEORGE MOHLER.
• Court: Illinois Supreme Court

69 Ill. 221

1873 WL 8440 (Ill.)

CYRUS P. EMERY

v.GEORGE MOHLER.

Supreme Court of Illinois.

September Term, 1873.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Whiteside county; the Hon. W. W. HEATON, Judge, presiding.

Messrs. WOODRUFF BROS., for the plaintiff in error.

Messrs. SACKETT & BENNETT, for the defendant in error.

Mr. JUSTICE MCALLISTER delivered the opinion of the Court:

This was a bill in equity, brought in the circuit court of Whiteside county, by Mohler against Emery, to enjoin the further prosecution of a suit at law, brought by the latter against the former, in the same court, for the alleged breach of a certain bond executed by Mohler to Emery, for the conveyance by the former of certain lands to the latter, and to correct said bond in respect to the description of a parcel of land therein contained.

The bond in question bore date March 1, 1871, was in the penal sum of $2000, and the condition, after reciting that Emery had conveyed, by warranty deed to Mohler, a certain parcel of land, describing it, which was situate in Whiteside county, aforesaid, and containing four 31/160 acres of land, valued at $1000, provided that if Mohler should, whenever requested, execute and deliver to Emery a good and sufficient deed, conveying to him the amount of 280 acres of land situated in the State of Wisconsin, and selected by Emery within six months from date, out of the following described 1480 acres of land, free and clear of all incumbrances, etc., then the obligation to be void. This condition was followed by this: “The following is a description of the above mentioned 1480 acres of land that said Emery is to select his 280 acres from, that George Mohler is to make to said Emery said deed: north-west quarter of section 4, township 26, range 5; number of acres, 160.”

Then followed fifteen other parcels, as to which there is no question.

After the making and delivery of the bond, and within the time limited, Emery went to Wisconsin, found the lands described, and, in selecting the quantity he was to have, made choice of the north half of the above described quarter section. He thereupon notified Mohler of his selection, and demanded a deed in pursuance of the bond. Mohler refused to give such deed of the said north half, on the ground that he had no title to it. By arrangement, however, Emery, without waiving his claim to that portion, accepted a deed of the other portions selected, and brought an action at law upon the bond, to recover damages for a breach thereof, whereupon Mohler filed the bill in this case to restrain the prosecution of that suit, and to have the description in the bond, as to the above mentioned quarter section, corrected, and the bond reformed, so as to make such description read: the “south half” of section 4, town. 26, etc., on the ground that the words “south half” were omitted by mistake, and the description, as it was, was contrary to the intention of both parties in making their contract for exchange of lands.

To this bill Emery filed an answer, denying the mistake, and that the intention was otherwise than as expressed in the bond, and filed a cross-bill for specific performance of the contract, as made, to which Mohler filed his answer. Issues having been formed by replications, the causes were heard upon the pleadings and proofs, and a decree passed dismissing the cross bill and granting relief upon the original bill, by perpetually enjoining the further prosecution of said action at law, and decreeing a correction of the bond, as prayed. To this decree Emery prosecutes a writ of error from this court.

The bill alleges the entry, previous to March 1, 1871, at the United States land office, in Wisconsin, by Mohler, of a large number of tracts of government lands, which are described, and for which he received the register's certificates; that about the date just mentioned, he and Emery entered into a contract for an exchange of lands, by the terms of which Emery was to convey to complainant certain lands lying in the county of Whiteside, and the latter to convey to defendant 280 acres of the lands, and to be selected therefrom by defendant after he should have an opportunity to examine the same; that complainant, at the time of making the contract, produced said certificates to defendant, as containing the description of his lands, from which said 280 acres so to be exchanged by complainant, were to be selected by the defendant, and no other list or memorandum of the same was produced at the time of the contract, and no other but said certificates were spoken of between the parties, as owned by complainant or as proposed to be exchanged by him. “And it was distinctly understood and agreed, at the time of making such contract by and between the parties thereto, that the 280 acres so to be selected by said defendant were to be selected from the lands included and described in said register's certificates, so produced and shown by your orator, as aforesaid, and no others, and which are the same hereinbefore more particularly described; that, as a part of the same agreement, it was further agreed between the parties, that said Emery should, forthwith, deed to your orator the land so to be exchanged and deeded by said Emery, and that your orator should execute to the said defendant a bond, conditioned for the conveyance to said Emery of 280 acres, to be selected by him from the lands embraced in said certificates, at some future day, after giving said Emery a reasonable time for making an examination of said lands and a selection of 280 acres.” It is thus the bill sets out the original contract, which was by parol. It then alleges the mistake in describing the whole of said north-west quarter of section 4, when, by the certificates, it should have been the south half of said quarter.

We have critically examined...