Forthman v. Deters

• Decision Date: 16 December 1903
• Citation: 206 Ill. 159,69 N.E. 97
• Parties: FORTHMAN v. DETERS.
• Court: Illinois Supreme Court

206 Ill. 159

69 N.E. 97

FORTHMAN

v.DETERS.

Supreme Court of Illinois.

Dec. 16, 1903.

Appeal from Circuit Court, Jasper County; Wm. M. Farmer, Judge.

Bill by Joseph Deters against Theodore Forthman and others. From a decree for plaintiff, defendant Forthman appeals. Affirmed.

James W. Gibson, for appellant.

Davidson & Isley, for appellee.

This is a bill filed on August 14, 1902, in the circuit court of Jasper county, by appellee, Deters, against Reka Huckstead, Ferdinand Huckstead, Anna Bartels, and appellant, Theodore Forthman, for the specific performance of a contract made by Reka and Ferdinand Huckstead with the appellee to convey to the latter 80 acres of land, to wit, the west half of the southeast quarter of section 8, township 7 north, range 8 east, in said county. The bill not only prayed for a conveyance of said lands from said Reka and Ferdinand Huckstead and Anna Bartels to appellee, but also that a deed subsequently made to appellant, Forthman, should be canceled. The bill was subsequently dismissed as to Anna Bartels. A joint and several answer was filed by Reka and Ferdinand Huckstead and the appellant, to which answer replication was filed. Testimony, oral and documentary, was introduced in open court before the chancellor, and the hearing resulted in a decree in favor of appellee, the complainant below. The present appeal is prosecuted from said decree.

The material facts are substantially as follows: One Christopher Huckstead died testate on November 28, 1901, leaving Reka Huckstead, his widow, and Ferdinand Huckstead, and Anna Bartels (formerly Anna Huckstead), his children and only heirs at law. At the time of his death he was the owner seised in fee of the 80 acres above described, and also of certain personal property, the value of which was afterwards appraised at the sum of $446. His will was made on October 31, 1901, and by the terms thereof he bequeathed to Reka Huckstead, his wife, a life estate in the south half of said 80 acres, with remainder over at her death to his son, said Ferdinand Huckstead. The north 40 acres of the 80-acre tract he devised to his son, said Ferdinand Huckstead.By the terms of the will, as thus stated, the title to the whole 80 acres was in Reka Huckstead, the widow, and Ferdinand Huckstead, the son. No interest in the land was devised to Anna Bartels. The will was probated in the county court of Jasper county at the February term, 1902, and one Charles Schmidt, the son of Reka Huckstead by a former husband, was appointed administrator with the will annexed, and qualified as such. In April, 1902, four small claims were allowed against the estate, amounting to $172, and the appraisers fixed the widow's award at $807, the reports of said appraisers being approved by the court March 3, 1902. Personal property was inventoried to the amount of $446.

Prior, however, to the appointment of the administrator, and on January 20, 1902, a written agreement was made between Reka Huckstead, widow of Christ Huckstead, deceased, of the county of Jasper, Ill., party of the first part, and Ferdinand Huckstead, of Effingham county, Ill., of the second part, and Anna Bartels, formerly Anna Huckstead, of Day county, territory of Oklahoma, party of the second part, which written agreement witnessed ‘that for and in consideration of the stipulation hereinafter mentioned’ the said parties of the first and second part ‘agree as follows: That we have sold to one Joseph Deters, of the county of Effingham, state of Illinois, the estate known as the Christ Huckstead estate, and described as follows:’ [Describing the eighty acres as above]-‘for the sum of $2,100.00, and that the said Joseph Deters agrees to pay all of said purchase money on the delivery of a good title to the said described land, less $800.00 and $102.72, interest on mortgage and money; making a total deduction of $902.72, and leaving a balance to be paid by said Joseph Deters of $1,197.28; and that the heirs hereby further agree to give possession of the said described land to Joseph Deters on or before March 1, 1903. And we further agree to give purchasera good deed, free from all encumbrance, with abstract of title up to date. All taxes to be paid by the said heirs for 1902.’ This written agreement was signed by Reka Huckstead and Ferdinand Huckstead under their respective seals, but was not signed by Anna Bartels, or by the appellee, Joseph Deters. It was acknowledged on January 20, 1902, before a notary public in Effingham county, by Reka Huckstead and Ferdinand Huckstead, and was acknowledged by Anna Bartels on January 24, 1902, before a justice of the peace in Day county, in the territory of Oklahoma, and was filed for record on May 10, 1902.

When Christ Huckstead died there was a mortgage upon the 80 acres in question, executed by the testator and his wife in the former's lifetime to H. P. Wyatt, dated January 28, 1898, to secure a note of the same date for $800, payable five years from February 1, 1898, with interest at six per cent. per annum, payable semiannually, and evidenced by coupon notes, all the notes being payable to the order of said Wyatt. On January 22, 1902, two days after the making of the contract, the appellee, Deters, took up and paid the mortgage notes, which were assigned and indorsed to him by Wyatt. Upon the hearing below the original mortgage and the principal note and coupons paid by Deters were introduced in evidence before the court. The amount paid by Deters for the notes and mortgage was $902.72, being $800 principal and $102.72 interest.

The contract was made a part of the bill, and the bill averred the complainant's readiness to comply with the agreement; that complainant, Deters, so informed the defendants on May 10, 1902; that on August 12, 1902, complainant applied to Reka and Ferdinand Huckstead, and offered to pay them $1,197.28 on delivery to him of a warranty deed for said land; that they refused to do so; that complainant Deters ‘on the 22d day of January, 1902, did pay to H. P. Wyatt $972.72, principal and interest on mortgage secured by premises, which sum was a part of purchase price of said premises'; that Reka Huckstead, Ferdinand Huckstead, and Anna Bartels on June 2, 1902, conveyed by warranty deed said 80 acres to Theodore Forthman; that Forthman knew at the time of above contract. The bill prays, in addition to what is above stated, that $1,197.28, the residue of purchase money, be placed to be used in payment of debts of the estate of Christ Huckstead, probated or to be probated, and for other relief.

The answer admits that Reka and Ferdinand Huckstead entered into a written agreement to sell the land, but denies that Anna Bartels joined in it, and denies that Deters was a party to it, or in any way connected therewith, and denies that he covenanted to pay $2,100 or any sum for the land; denies that he was ready and willing to comply, and avers that he refused to become the purchaser of said real estate, and only showed a willingness to purchase the land after it had been sold to Forthman; denies that Deters paid Wyatt $972.72, principal and interest of mortgage, as part of the purchase price of said premises, but avers that he purchased said mortgage debt, and caused the same to be assigned to himself, and is now the owner thereof, unsatisfied and unpaid, and capable of being enforced against said real estate. The answer admits the conveyance of the land to Forthman, and avers that, Deters not being a party to the agreement, the same could not be enforced at law or in equity against him; that there was no mutuality or reciprocity of obligation created by said agreement between Deters and the defendants below.

On April 13, 1903, the court by its decree found that the land was devised as above stated to Reka and Ferdinand Huckstead; that the agreement of January 20, 1902, was entered into between said Reka and Ferdinand Huckstead and Anna Bartels with the appellee, Deters; that said agreement was filed for record May 10, 1902; that Deters had tendered Reka and Ferdinand Huckstead $1,197.28, after having paid the mortgage and interest mentioned in the contract amounting to $902.72; that the defendants below refused to make deed to Deters; that on February 3, 1902, Charles Schmidt was appointed administrator with the will annexed of the estate of Christopher Huckstead, deceased; that the only real estate inventoried was the premises in controversy; that Deters had offered to deposit $1,197.28, to pay off and release claims against estate, in the hands of any person defendants below would designate; that the defendants refused the offer; that June 2, 1902, Reka and Ferdinand Huckstead conveyed the premises to Theodore Forthman; that Forthman purchased the premises with knowledge of Deters' rights; and it was therein decreed that the agreement be specifically performed; that Reka and Ferdinand Huckstead execute to Deters warranty deed for the land, and deliver the same, with abstract of title, to the clerk of the court on or before August 1, 1903; that Theodore Forthman also convey the premises to Deters on or before August 1, 1903; that, if conveyances are made, Deters, within one day after August 1, 1903, pay the clerk $1,197.28; that the clerk shall keep the money until premises are released from all claims allowed against said estate; that, if Deters is compelled to discharge said liens, then that the sum of money which he is compelled to pay for that purpose be deducted from the amount deposited with the clerk, and the balance, if any, be paid to Forthman; that if Reka or Ferdinand Huckstead or Theodore Forthman pay said claims, then the clerk shall pay to Forthman said sum of money so deposited with him; that, in the event of an appeal by the defendants or any of them, Deters need not pay said sum of $1,197.28 to said clerk until the final determination of the case; that if defendants execute the deed as required, and deposit the same with...