Evans v. Gerry

• Decision Date: 24 October 1898
• Citation: 174 Ill. 595,51 N.E. 615
• Parties: EVANS v. GERRY.
• Court: Illinois Supreme Court

174 Ill. 595

51 N.E. 615

EVANS

v.GERRY.

Supreme Court of Illinois.

Oct. 24, 1898.

Appeal from circuit court, Lake county; Clark W. Upton, Judge.

Suit by Robert G. Evans against Julia M. Gerry. There was a decree for defendant, from which plaintiff appeals. Reversed.D. L. Zook and Cook & Upton, for appellant.

Whitney & Upton, for appellee.

This was a bill in chancery filed by appellant for the specific performance of a contract providing for the mutual exchange of certain properties in the city of Highland Park between appellant and appellee. The contract over which the controversy arises is as follows: ‘Contract for conveyance made this first day of March, A. D. 1895, between Julia M. Gerry, party of the first part, and Robert G. Evans, party of the second part, both of the city of Highland Park, Lake county, Illinois: First party agrees to convey, by warranty deed, to second party, lots one (1) and two (2), except westerly thirty feet thereof, and lot three (3), all in block three (3) in the city of Highland Park, Lake county, Illinois, as per recorded plat made by the Highland Park Building Company, free from all liens and incumbrances whatsoever, except a mortgage on which a balance of $3,500 remains unpaid, and will mature November, 1895. And in consideration of such conveyance second party agrees to convey, by warranty deed, to first party, free from incumbrances of every kind, lot nineteen (19) in block seventy-five (75) in the city of Highland Park, Lake county, Illinois, as per said recorded plat. Second party, as a further consideration, agrees to pay first party the sum of $1,000 on the first day of May, 1895, and the further sum of $990 on the delivery of said deed, and the further sum of $10 on the signing hereof, the receipt of which latter sum this day is hereby acknowledged by first party. Each party to furnish the other a complete and merchantable abstract of title for said respective lots, brought down to date, same to be furnished within ten days of this date, and said deeds to be delivered within three days after said respective titles are found to be good. Witness our hands and seals the day and year first above written. Julia M. Gerry. [Seal.] R. G. Evans. [Seal.]’ The parties to this contract were residents of the city of Highland Park, where they had lived many years; and they had made personal investigation of the respective properties, and apparently came to a full understanding as expressed in this contract. Appellant paid the earnest money of $10, and, soon after the execution of the contract, abstracts of title were furnished by each of the parties to the other. The abstract of title of appellee's property was found to be satisfactory to appellant, and no objection was raised to it. Appellant's abstract was by appellee placed in the hands of an attorney for examination, and on March 14, 1895, he rendered an opinion finding a number of objections,-some material, and some of minor importance,-subject to which he found appellant had a good, merchantable title. Appellant immediately went to work to cure such defects in his title as were noted by the attorney, and as appeared to be material. About this time, however, appellee offered to return to appellant his abstract and the $10 earnest money; informing him that she did not intend to carry out her contract, as his title was not good. From the record and from her evidence it appears the true reason was she had become dissatisfied with the contract, and believed the property she was receiving from appellant was not worth as much as he had represented, and as she had first believed. It is apparent this was the prime cause which actuated her to refuse to carry out the contract. The principal reason assigned by appellee for declining to accept the abstract of title of appellant's property was that while the contract provides for a conveyance to her of ‘lot 19 in block 75 in the city of Highland Park, Lake county, Illinois, as per said recorded plat,’ the correct description of the property, and that named in the deed which was afterwards tendered to her, is ‘lot 19, block 75, in Hawkins' addition to said city of Highland Park.’ It is not controverted that the property of appellant, of which appellee made a personal investigation, and the house, buildings, etc., thereon, was as last described. It is also undisputed that there is but one block numbered 75 in the city of Highland Park, and that block is in Hawkins' addition. Originally there were but 73 blocks subdivided and platted, and they were consecutively numbered from 1 to 73, inclusive. Subsequently Frank P. Hawkins made a subdivision of the adjacent property, consisting of 3 blocks, which he numbered 74, 75, and 76. The appellant's property is lot 19 in block 75. On this lot were located a new brick dwelling house and other improvements, which appellee went through and carefully examined the day before the contract was entered into. On the 25th day of March appellant made a tender of a deed to appellee conveying the property last above described, and the balance of the money specified in the contract to be paid by him, both of which appellee refused to accept or to carry out the contract. No objection was made by her at that time as to the variance between the description of the property in the deed and that in the contract. Upon this refusal on her part, appellant filed this bill for specific performance, and upon the trial, to establish his right thereto, offered the contract, and introduced proof of chain of conveyance from the United States to himself, and proof of the payment of taxes, for the purpose of establishing a good, merchantable title. Appellee, for the first time upon the trial, objected to the variance in the description of the property, and also insisted the contract had been waived or abandoned by appellant having negotiated with appellee for the purchase of part of the property after she had refused to comply with the contract. Upon the hearing in the circuit court of Lake county a decree was entered dismissing appellant's bill for want of equity, and from that decree this appeal is prosecuted to this court.

PHILLIPS, J. (after stating the facts).

It is contended by appellant that the facts presented by this record, and the law applicable thereto, are sufficient to authorize a decree in his favor, and that the decree in the circuit court dismissing hil bill should be reversed. Specific performance is an equitable remedy, which compels the performance of a contract in the precise terms agreed upon, or such a substantial performance as will do justice between the parties under the circumstances of the case. Inflexible rules cannot be laid down for the exercise of the power of a court of equity to grant specific performance of a contract. While it is true it is never to be demanded as a matter of absolute right, and the granting or denial of the relief sought rests in the sound judicial discretion of the court, yet where all the necessary elements, conditions, and incidents are present, relief by way of specific performance should be granted as a matter of right, and not as a mere matter of favor. Day v. Hunt, 112 N. Y. 191, 19 N. E. 414;Hayes v. Nourse, 114 N. Y. 595, 22 N. E. 40;Jones v. Newhall, 115 Mass. 244;Chambers v. Livermore, 15 Mich. 381; Pom. Eq. Jur. § 1404; 22 Am. & Eng. Enc. Law, 911, 912. By the contract executed voluntarily by the parties to this suit, appellant is, under the rule above stated, entitled to a decree for specific performance, unless appellee has shown some valid and sufficient reason why such contract on her part should not be performed.

It is first urged the description of the premises owned by appellant, of which a deed was tendered to appellee, and afterwards brought into court, varies from the description in the contract. This is true; but is it a material legal variance, to an extent that should permit the avoidance of this contract? The evidence clearly shows there is but one block...