Geithman v. Eichler

• Decision Date: 16 December 1914
• Docket Number: No. 9797.,9797.
• Citation: 107 N.E. 180,265 Ill. 579
• Parties: GEITHMAN et al. v. EICHLER et al.
• Court: Illinois Supreme Court

265 Ill. 579

107 N.E. 180

GEITHMAN et al.

v.EICHLER et al.

No. 9797.

Supreme Court of Illinois.

Dec. 16, 1914.

Appeal from Circuit Court, De Kalb County; Clinton F. Irwin, Judge.

Suit for specific performance by William A. Geithman and another against Alfred Eichler and another, who filed a cross-bill. From a decree dismissing the cross-bill and granting the relief prayed in the original bill, defendants appeal. Affirmed.R. K. Welsh, of Rockford, for appellants.

George W. Brown, of Chicago, and C. D. Rogers, of Sycamore, for appellees.

FARMER, J.

This is a bill filed by appellees for the specific performance of a contract to convey land. September 21, 1912, Alfred Eichler and May Eichler, appellants, entered into a contract with William A. Geithman and James J. Hammond, appellees, whereby appellants, as parties of the first part, agreed to sell, and appellees, as parties of the second part, agreed to buy, a certain 120 acres of land situate in De Kalb county. The contract provided the grantors were to convey the land ‘in fee simple, clear of all incumbrances whatever, by good and sufficient warranty deed,’ the ‘title to be shown by October 15, 1912, showing title in Alfred Eichler,’ and that on March 1, 1913, the appellants agreed ‘to deliver to party of second part [appellees] a warranty deed and good, merchantable abstract of title’ to the land described in the contract, at which time the negotiations were to be completed. Five hundred dollars was paid on the date of the execution of the contract, to be applied on the purchase price, $4,640 was to be paid March 1, 1913, and a note given for the balance, $12,500, secured by mortgage on the land. The contract provided that, upon failure of appellees to make subsequent payments therein provided, or otherwise perform their covenants, appellants might forfeit and determine the contract and retain any payments made, as liquidated damages. Time was made the essence of the contract. It appears, however, that the time or dates mentioned in the agreement were waived by mutual consent, and negotiations were had toward the completion of this agreement much later than March 1, 1913, the time fixed by the contract for the completion of the sale. It appears that appellants showed appellees the abstract to the land in question January 31, 1913, and on February 14, [265 Ill. 581]1913, the abstract, brought down to date, was delivered to appellees, and by them submitted to their attorney for examination. On February 22, 1913, he delivered his written opinion of the abstract to both appellants and appellees, pointing out certain defects, none of which are necessary to be considered, except one, which will be later referred to. February 28, 1913, appellees deposited, at the place and with the parties designated in the contract, the balance of the consideration for the land to be paid in cash and a note secured by mortgage, in accordance with the terms of the contract. Several conferences were subsequently had between the parties with a view to concluding the transaction, and appellants on March 17, 1913, met appellees by appointment, to complete the transaction. Appellants had executed a deed and assigned a lease on the premises, which, together with the abstract and tax receipt, they had with them. Appellees objected, and refused to carry out the contract, claiming the title was not in compliance with the agreement. March 27, 1913, appellants left at the place designated for the performance of the contract the deed, assigned lease, abstract, and tax receipt, and on the following day served written notice upon appellees that, unless the contract was completed, and full payment made on or before April 8, 1913, the contract would be forfeited and determined. Some further negotiations were had between the parties, but, the contract not being completed on April 8, 1913, appellants on April 19, 1913, served a notice of forfeiture on appellees. Subsequent to the latter date the original contract for the sale of the land was recorded by appellees, and on May 6, 1913, they filed their bill in chancery praying for the specific performance of the contract in question, and for an injunction restraining appellants from receiving the rents of the land involved, and for general relief. Appellants filed an answer denying appellees were entitled to the relief prayed, and insisting the forfeiture was valid, and filed a cross-bill alleging the title tenderedto appellees complied with the terms of the contract, and praying that the contract now of record be canceled as a cloud upon appellants' title. Upon answer to the cross-bill and replications being filed, a hearing was had and a decree entered dismissing the cross-bill and granting the relief prayed in the original bill.

Few, if any, important facts are in dispute. The questions presented for decision are mainly questions of law arising out of the construction of the contract sought to be enforced.

Appellants contend that the contract bound them to convey to appellees, by warranty deed free from incumbrances, a fee-simple title to the land, but not to furnish an abstract showing such title in them of record; that the appellants owned that title they agreed to convey, and when they executed the deed and delivered it to the parties and at the place agreed upon, for appellees, together with the abstract, they had done all that was required of them by the contract, without regard to whether the abstract showed good merchantable title in appellants. In other words, the contention of appellants as to the abstract they were required to furnish is that it was to be a merchantable abstract, but not that it was to show a merchantable title in appellants. Appellants further contend that, even if the contract is construed as requiring them to furnish an abstract showing a merchantable title, the abstract furnished does show in appellants a merchantable title. While other defects in the abstract were claimed to have existed, the only one relied upon by appellees for their refusal to accept the deed and abstract tendered them is as follows: The records show, as abstracted, that 80 acres of the land were purchased by Noah C. Anderson from the state, and a certificate issued to him therefore, but no patent was of record. The certificate of purchase by Anderson is dated March 9, 1846, and on June 24, 1846, Noah C. Amsden conveyed the land to Caleb Olmstead. No conveyance is shown from Noah C. Anderson to Noah C. Amsden. As a matter of fact, the land was purchased from the state by Noah C. Amsden, and the name ‘Anderson’ was written in the certificate by mistake, which was shown by appellants on the trial of the case by a certified copy by the auditor of public accounts of the report of the sale of school lands in De Kalb county, and also a certified copy of the patent issued, but this was not known to appellees until the documents were offered in evidence at the trial.

As we construe the agreement, appellants were bound not only to convey to appellees, by warranty deed, a good title free from incumbrances, but they were required to show by October 15, 1912, that they owned such title, and by March 1, 1913, at which time the sale was to be completed, they were to furnish appellees an abstract showing merchantable title in them. It is true the contract is not in those precise words. It obligated appellants to convey a fee-simple title free from incumbrances, by warranty deed. This did not necessarily mean a perfect title or record, but meant a good merchantable title. A party may have such title to land notwithstanding apparent defects in the chain are shown by the records. For instance, the statute of limitations may make a title good which is apparently defective, as shown by the chain abstracted from the records. There is no dispute upon these propositions, and the citation of authorities we deem unnecessary. The contract further bound appellants to show appellees by October 15, 1912, that they had the title which they agreed to convey, but how...