Kennedy v. Le Moyne

• Decision Date: 20 December 1900
• Parties: KENNEDY v. LE MOYNE.
• Court: Illinois Supreme Court

188 Ill. 255

58 N.E. 903

KENNEDY

v.LE MOYNE.

Supreme Court of Illinois.

Dec. 20, 1900.

Appeal from circuit court, Cook county; R. S. Tuthill, Judge.

Action by Francis J. Le Moyne against David J. Kennedy. From a decree in favor of plaintiff, defendant appeals. Affirmed.

Magruder, J., dissenting.

Wm. R. Burleigh, for appellant.

W. A. McLaren (Shope, Mathis & Barrett, of counsel), for appellee.

HAND, J.

This is a bill in chancery by the vendor to enforce the specific performance of a contract for the sale of lots 12, 13, and 14, in block 8, in Street's addition to Downer's Grove, Dupage county, Ill., entered into on the 3d day of April, 1897, between Francis J. Le Moyne and David J. Kennedy. The case was tried upon bill and answer. The circuit court granted the relief prayed for, and the defendant has prosecuted this appeal. The appellee deraigns title through the bishop of the Protestant Episcopal Church in the diocese of Chicago, and the trustees of the Protestant Episcopal Church in the diocese of Illinois. The answer admits the execution of the contract, the tender of a deed, the refusal of the appellant to accept the same, and pay the purchase price of said lots; that on the 2d day of December, 1895, William D. C. Street was seised in fee simple of the lots, and on that day conveyed the same, by warranty deed, to the bishop of the Protestant Episcopal Church in the diocese of Chicago; that on the 24th day of April, 1896, the bishop of the Protestant Episcopal Church in the diocese of Chicago conveyed the same, by warranty deed, to the trustees of the Protestant Episcopal Church in the diocese of Illinois, and on the 25th day of December, 1896, the trustees of the Protestant Episcopal Church in the diocese of Illinois conveyed the same, by warranty deed, to the appellee; and avers that the appellee was at the time of the making of the contract and of the tender of the deed, and still is, unable to perform said contract, and make a good title to said lots, for want of title thereto in himself. On the 24th day of January, 1853, the general assembly of the state of Illinois passed an act entitled ‘An act authorizing certain persons holding property in trust for the use of the Protestant Episcopal Church in the state of Illinois to convey the same,’ and provided therein, among other things, ‘that all gifts, grants, deeds, wills and other conveyances wherein or whereby any lands, tenements or other property within this state have been given, devised or granted or in any manner conveyed by any person or persons whatever, unto any person by the name, style or title of bishop of the Protestant Episcopal Church in the state or diocese of Illinois, or bishop of Illinois, and his successors, or to any other person, upon the trust, expressed or implied, to take, hold and receive the same for the use and benefit of any religious congregation of Protestant Episcopalians, or for the support, aid or maintenance of the cathedral church, of any hospital, almshouse, seminary, church, parsonage, or for burial grounds, or other religious or charitable purposes within this state; and all such gifts, grants, deeds, wills and other conveyances which may hereafter be made, are hereby confirmed and declared to be good, sufficient and effectual, in law, to vest the legal title and estate in fee simple of, in and to the said lands and tenements and other property in such grantee or devisee, and in such persons as shall be in the future the successors of the said bishop of Illinois, forever.’ Before that time, viz. on the 10th day of February, 1849, the general assembly of the state of Illinois had passed an act entitled ‘An act to authorize the Protestant Episcopal Church in the state of Illinois to raise a fund for the support of a bishop, and to aid superannuated ministers and the widows and children of deceased ministers,’ by which act there was created a body corporate known as the ‘Trustees of the Protestant Episcopal Church in the Diocese of Illinois,’ with authority to receive and to hold in trust funds to the extent of $100,000 for the purposes expressed in the title of said act; and on the 21st day of February, 1861, the general assembly of the state of Illinois passed an act entitled ‘An act amendatory of an act entitled ‘An act to authorize the Protestant Episcopal Church in the state of Illinois to raise a fund for the support of a bishop, and to aid superannuated ministers and the widows and children of deceased ministers,’ approved February 10, 1849,' by section 1 of which act the uses of the act of February 10, 1849, are increased, as follows: ‘Or for the establishment, erection, support, aid or maintenance of any hospital, almshouse, seminary, church, parsonage or burial ground, or for the furtherance and promotion of these and other charitable, religious, literary or eleemosynary purposes connected with the said Protestant Episcopal Church in the diocese of Illinois.’ Section 2 provides, if the proper authorities fail to appoint trustees, the acting trustees shall continue in office until the appointment of their successors. Section 3 increases the value of...