Hayes v. O'Brien

• Court: Illinois Supreme Court
• Writing for the Court: SHOPE
• Citation: Hayes v. O'Brien , 149 Ill. 403, 37 N.E. 73 (Ill. 1894)
• Decision Date: 31 March 1894
• Parties: HAYES v. O'BRIEN et al.

149 Ill. 403

37 N.E. 73

HAYES

v.O'BRIEN et al.¹

Supreme Court of Illinois.

March 31, 1894.

Appeal from superior court, Cook county; Henry M. Shepard, Judge.

Bill for specific performance filed by Michael C. Hayes against William D. O'Brien and Fayette Thompson. The bill was dismissed on demurrer. Complainant appeals. Reversed.

Craig, J., dissenting.K. R. Smoot, C. B. Eyer, and Monk & Elliott, for appellant.

Whitney & Upton, for appellee Thompson.

S. M. Meek and O. R. Trowbridge, for appellee O'Brien.

This was a bill in chancery filed by Michael C. Hayes against William D. O'Brien and Fayette Thompson in the superior court of Cook county to enforce the specific performance of a contract for the conveyance of land situated in Lake county, and, as auxiliary to this relief, to enjoin O'Brien from the prosecution of a forcible entry and detainer proceeding brought by O'Brien against the tenant of Hayes before a justice of the peace of Lake county. O'Brien filed a general and special demurrer to the bill. Thompson entered a special appearance, and moved to dismiss the bill for want of jurisdiction. The motion and demurrer were heard together, which were sustained by the court, and the bill dismissed. From this decree, Hayes prosecutes this appeal.

So much of the contract sought to be enforced, material to an understanding of the opinion, is as follows: ‘This indenture, made and entered into this eighth day of April, A. D. 1889, by and between Fayette Thompson, of Waukegan, Lake county, state of Illinois, party of the first part, and Michael C. Hayes, of Chicago, Cook county, state of Illinois, party of the second part, witnesseth, that the said party of the first part, for and in consideration of the covenants and agreements hereinafter mentioned, to be kept and performed by said party of the second part, his assigns, executors, or administrators, has demised and leased unto the party of the second part the following described land, to wit: Situate in the county of Lake and the state of Illinois, and being a part of the south half of section thirty-four (34) and thirty-five (35) in township forty-six (46) north, of range twelve (12) east of the third principal meridian, more familiarly known as the ‘Old Merchant Farm.’ Said land is divided into unequal portions by the right of way of the Chicago & Northwestern Railway Company through said land in a northerly and southerly direction. All of that portion east of said right of way, only, is leased to said party of second part. To have and to hold the same to the party of the second part from the eighth day of April, A. D. 1889, to the eighth day of April, A. D. 1899. Said party of the first part hereby reserves the right or privilege of selling that portion of said land at any time from and after this date; but no such sale of said land shall be made by said first party without first having given said second party the privilege of purchasing said land upon such terms, and at the same price per acre, as any other person or purchaser might have offered therefor.' Then follow covenants to pay rent at the rate of one dollar per car load of gravel removed, etc., and that not less than 250 cars per year shall be taken, etc. The bill alleges that in the month of September, 1889, Thompson, without any notice to complainant, and without giving him the privilege of buying, as he covenanted to do, sold and conveyed the land to O'Brien, who, it is alleged, purchased with full notice of complainant's rights. The bill charges fraud and collusion between O'Brien and Thompson to deprive complainant of the benefits of his lease, and his right to purchase, alleges acts of O'Brien and others interfering with complainant in the use and enjoyment of the premises, etc., and seeks to enjoin the same.

SHOPE, J. (after stating the facts).

Appellees have entered a motion to dismiss the appeal for want of jurisdiction in this court. The contention is that a freehold is not involved. The complainant, by his bill, seeks to have the deed made by Thompson to O'Brien set aside, and to specifically enforce his contract with Thompson, by compelling the defendants to convey the land described in the contract to him. We are of opinion that a freehold is involved. A decision in favor of either party would determine their right to the land, as between themselves. If adverse to the complainant, O'Brien would retain the title under his deed; if in his favor, the title of O'Brien would be divested. The motion is overruled.

The first point raised by the demurrer and motion to dismiss in the lower court is that the court had no jurisdiction; the land in respect of which specific performance was sought, lying in Lake county, and the bill having been filed in Cook. It is conceded that the court acquired jurisdiction of the person of the defendants. We need not enter upon any discussion of this question, for the reason that it has been repeatedly held in this state that jurisdiction of the person invests the court with power to proceed to final decree in all that class of cases where it is sought to compel the execution or cancellation of deeds to land. Where the relief sought does not require the court to deal directly with the estate itself, the proceeding does not affect real estate, within the meaning of the third section of the chancery act; and the court, having the parties in interest all before it, may proceed, although the land to which the controversy relates may lie without the jurisdiction of the court. As said in Johnson v. Gibson, 116 Ill. 294, 6 N. E. 205, ‘the decree in such cases settles the rights of the parties before the court with respect to some contract, conveyance, or fraudulent conduct, and, by attachment or other coercive means, compels the offending party to comply with the requirements of the decree.’ Enos v. Hunter, 4 Gilman, 211;Cooley v. Scarlett, 38 Ill. 216;Baker v. Rockabrand, 118 Ill. 365, 8 N. E. 456;Massie v. Watts, 6 Cranch, 148;De Klyn v. Watkins, 3 Sandf. Ch. 185;Mitchell v. Bunch, 2 Paige, 615;Hart v. Sansom, 110 U. S. 151, 3 Sup. Ct. 586.

It is also objected that the court was without jurisdiction to restrain the proceeding at law pending in Lake county. Section 3 of the chancery act provides: ‘Bills for injunction to stay proceedings at law, shall be brought in the county in which the proceedings at law are had.’ Unquestionably, if this was a bill to enjoin proceedings at law, simply, it could be brought only in Lake county. But such is not the primary object of the bill, that being to compel specific performance of the contract for the sale and conveyance of the land. It is apparent that, it having been alleged in the bill that Thompson had conveyed the land to O'Brien, complete relief could not have been afforded without making O'Brien a party defendant. He being a necessary party to the bill, therefore, and residing in Cook county, the bill might properly be brought in that county (section 3, c. 22, Rev. St.), and the other defendants brought in by summons in that proceeding. The court, having jurisdiction of the main purposes of the bill, would have the right to grant such auxiliary or incidental relief as would be necessary to make the relief sought complete. Lester v. Stevens, 29 Ill. 155; Baker v. Rockabrand, supra; Winston v. Mining Co., 20 Grat. 686;Muller v. Bayly, 21 Grat. 521.

The principal contention is that specific performance of the alleged agreement cannot be decreed-First, because it is wanting in mutuality; second, because there is an insufficient description of the premises alleged to have been sold; third, that the contract is so uncertain, indefinite, and incomplete as to be incapable of enforcement.

1. The doctrine of the earlier English and American cases, in which it was held that the want of mutuality of obligation and remedy would render the contract incapable of specific enforcement, has, by the more modern cases been so modified that optional agreements to convey, without any corresponding obligation or covenant to purchase, will now be specifically enforced in equity, if made upon sufficient and valuable consideration; and so, where the agreement to convey is a part of a lease or other contract between the parties, for which the agreement to convey forms the true consideration, the want of mutuality will not avoid the contract. Estes v. Furlong, 59 Ill. 298;Hawralty v. Warren, 18 N. J. Eq. 124;Hall v. Center, 40 Cal. 63;Maughlin v. Perry 35 Md. 352; Backhouse v. Mohun, 3 Swanst, 434; Clason v. Bailey, 14 Johns. 484;Willard v. Tayloe, 8 Wall. 557, and cases cited. In Willard v. Tayloe, supra, it was covenanted in the lease executed between parties that the lessee should, at any time before the expiration of the lease, have the right to purchase the leased premises at a fixed price; and it was said: ‘The covenant in the lease giving the right or option to purchase the premises was in the nature of a continuing offer to sell. It was a proposition extending through the period of ten years, and, being under seal, must be regarded as made upon a sufficient consideration, and therefore one from which the defendant was not at liberty to recede.’ When the contract is unilateral, as in the case of an option to purchase, the court will, as said in Estes v. Furlong, supra, exercise its discretion with great care, and scan the conduct of the party claiming the benefit of such a contract; ‘but an agreement of this character cannot be regarded as invalid, or as one which will not be enforced in equity.’ In Hawralty v. Warren, supra, it is said: ‘In taking a lease, a tenant may be willing to pay a high rent for a number of years, provided the landlord will give him an optional right to purchase at a fixed price; and it is not to be presumed, that the landlord would agree to such a concession unless he had a consideration in the lease. Any sufficient consideration would make such unilateral contract binding in equity.’ We need not...