Kansas City Life Ins. Co. v. Gehant

• Decision Date: 05 December 1935
• Docket Number: No. 23073.,23073.
• Citation: 198 N.E. 703,362 Ill. 58
• Parties: KANSAS CITY LIFE INS. CO. v. GEHANT.
• Court: Illinois Supreme Court

362 Ill. 58

198 N.E. 703

KANSAS CITY LIFE INS. CO.

v.GEHANT.

No. 23073.

Supreme Court of Illinois.

Oct, 24, 1935.

Rehearing Denied Dec. 5, 1935.

Suit by the Kansas City Life Insurance Company against Xavier F. Gehant. From a decree for plaintiff, defendant appeals.

Affirmed.

Appeal from Circuit Court, Lee County; Albert H. Manus, Judge.

Robert W. Besse, of Sterling (Frank S. Regan, of Rockford, of counsel), for appellant.

Dixon, Devine, Bracken & Dixon, of Dixon (John P. Devine and J. C. Ryan, both of Dixon, of counsel), for appellee.

STONE, Chief Justice.

Appellant seeks review of a decree of the circuit court of Lee county requiring specific performance by him of a contract to purchase certain real estate in the city of Dixon. Under the contract he agreed to purchase, and appellee agreed to sell the property for $5,700. One hundred dollars was paid at the time the contract was executed and the balance of $5,600 was to be paid on or before ten days thereafter. Appellee was required by the contract to furnish an abstract of title showing title in it free and clear of encumbrance. Appellee acquired this property by foreclosure of a mortgage thereon. Appellee held a mortgage on this property from 1926 until the latter part of 1934, when it secured a master's deed thereto under foreclosure of the mortgage. The abstract of title was submitted to appellant, and was later returned with the objection that it did not show appellee had paid taxes on this mortgage during the time of the existence of such mortgage from 1926 to 1934 and had not paid the taxes on its certificate of purchase from the day it received same until a deed was issued. The trial of the cause was before the chancellor. Proof of the contract, the abstract of title, warranty deed, and its tender and appellant's refusal to accept the deed on the ground of the objection here stated was made by appellee. Appellant offered proof that appellee had a mortgage on the property from 1926 until it obtained a master's deed, and that it had not listed the mortgage or credits for taxationin Lee county. Objections were sustained to this offer, and the chancellor entered the decree for specific performance complained of.

The sufficiency of appellant's objection to the abstract is the only question involved in this case. Appellant claims that appellee not having listed for taxation in Lee county the mortgage as a credit, any tax on such credit, if and when assessed, would be a lien against any real estate owned by appellee in Lee county during the period for which such tax was assessed, and without the removal of that lien the same would constitute a cloud on the title which appellee had tendered to appellant under its contract to convey title free and clear of all encumbrance. It is not contended that the abstract of title shows a cloud upon the title, but that under the Revenue act appellee is liable for personal property assessments, and in case such assessments were made it would become a cloud on the title to the land described in the contract.

Appellee by its contract covenanted to convey title free and clear of encumbrance except taxes subsequent to the year 1933. The abstract shows that all taxes levied against this property had been paid. There...