Lowery v. Niccolls

• Decision Date: 31 May 1882
• Citation: 11 Bradw. 450,11 Ill.App. 450
• Parties: JOSEPHINE LOWERYv.ROBERT NICCOLLS.
• Court: United States Appellate Court of Illinois

11 Ill.App. 450

11 Bradw. 450

JOSEPHINE LOWERY

v.ROBERT NICCOLLS.

Appellate Court of Illinois, Third District.

May Term, 1882.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of McLean county; the Hon. OWEN T. REEVES, Judge, presiding. Opinion filed October 24, 1882.

Messrs. ROWELL & HAMILTON, for appellant; that courts are powerless to disregard the terms of a contract plainly expressed, and can only enforce the same according to its terms, cited Peoria M. & F. Ins. Co. v. Whitehead, 25 Ill. 466; Cory v. Lehman, 79 Ill. 173; Stout v. Whitney, 12 Ill. 218; Kimball v. Custer, 73 Ill. 389; Merchants Ins. Co. v. Morrison, 62 Ill. 242.

Mr. JOHN E. POLLOCK, for appellee; that the finding of a court without a jury will not be disturbed where the evidence is conflicting, cited Weaver v. Crocker, 49 Ill. 461; Crabtree v. Fuquay, 49 Ill. 520; Bagley v. McClure, 46 Ill. 381; Thomas v. Rutlege, 67 Ill. 213; Demoss v. Hanneman, 46 Ill. 185; Smith v. Brown, 46 Ill. 186; Corrigan v. Hardy, 46 Ill. 502; Thompson v. Anthony, 48 Ill. 468; Nimmo v. Kuykendall, 85 Ill. 476.

It is sufficient if there has been no unreasonable delay in performing: Beck v. Simmons, 7 Ala. 71; Seton v. Slade, 7 Ves. 265; Colton v. Wilson, 3 P. Wm. 190; Pennell v. McAfferty, 84 Ill. 364.

It is sufficient if the title is acquired after the day named and before the decree: Sugden on Vendors, 365; Bank v. Hagner, 1 Pet. 455; Davidson v. Moss, 5 How. (Miss.) 680.

HIGBEE, J.

This was a bill in chancery by appellee against appellant to construe and enforce a written contract between the parties. An answer and cross-bill were filed by appellant, and on a final hearing the court found in favor of appellee, granted the relief asked for by the bill and dismissed the cross-bill.

The facts as they appear by the pleadings and proofs in the record are substantially as follows: On January 3, 1879, on receipt of one thousand dollars paid by appellant, appellee executed and delivered a deed conveying to her a half section of land in Kansas. At the same time and as a part of the same transaction the parties entered into the following contract:

“This agreement witnesseth, that whereas, Robert Niccolls has this second day of January, 1879, sold and conveyed to Josephine Lowery the southwest quarter of section twenty-seven and the northwest quarter of section thirty-four, town twenty-four, and range five east, in Butler county, Kansas, and there is a defect in the title thereof. Now, said Niccolls, in consideration of the premises, agrees to perfect said title of record within nine months from this date, and as security that he will do so, has deposited with Swan & Ellis collateral security. Now, if said Niccolls shall perfect title of record within nine months from this date, said collateral shall be given up to him; but in case he does not so perfect said title, then said collateral shall be held for the benefit of Josephine Lowery, and she shall be entitled to so much thereof as it shall cost her to buy in any outstanding title or to perfect the same herself, including any damages which she may sustain by reason of the failure to perfect said title, or at her election, she may reconvey said land to said Niccolls and recover out of said collateral the purchase price and ten per cent. interest upon the same.

(Signed),

ROBERT NICCOLLS,

JOSEPHINE LOWERY.

Dated January 3, 1879.”

At the time of the sale of the land appellee had a tax title and a mortgage on the same, and he at once commenced a suit in court in Kansas to perfect his tax title, which it seems was defective, and on the 31st day of December, 1879, the cause was disposed of by the court adversely to him. Having failed in this proceeding to perfect his title, he subsequently commenced a suit to foreclose his mortgage resulting in a decree of foreclosure in the court in Kansas on the 30th day of March, 1880. This decree directed a sale of the lands, which was made on the 11th day of May, 1880. This sale was reported to and approved by the court at its September term, 1880, and an order entered directing the sheriff who had made the sale to execute to appellee, the purchaser, a deed for the premises, which he did on the 20th day of October of the same year.

The foreclosure proceedings were based upon constructive notice, by publication, to the mortgagor, who was defendant in the suit.

On June 5, 1880, Mrs. Lowery notified appellee, that she had elected not to take the land, but in lieu of it, to receive from the proceeds of the collateral note in the hands of Swan & Ellis, the purchase money and...