Newton v. Vill. of Glen Ellyn

• Decision Date: 14 June 1940
• Docket Number: No. 25488.,25488.
• Citation: 27 N.E.2d 821,374 Ill. 50
• Parties: NEWTON et al. v. VILLAGE OF GLEN ELLYN.
• Court: Illinois Supreme Court

374 Ill. 50

27 N.E.2d 821

NEWTON et al.

v.VILLAGE OF GLEN ELLYN.

No. 25488.

Supreme Court of Illinois.

April 17, 1940.

Rehearing Denied June 14, 1940.

Appeal from Circuit Court, Du Page County; Win G. Knoch, judge.

Rehearing denied; WILSON, C. J., dissenting.

Suit in ejectment by Ralph Newton and others against the Village of Glen Ellyn to recover possession of a lot located in the Village of Glen Ellyn. From a judgment in favor of the plaintiffs, the defendant appeals.

Judgment reversed.Robert J. Scott, of Glen Ellyn (Richard M. White, of Glen Ellyn, of counsel), for appellant.

Charles J. Trainor, of Chicago (Leo J. Bartolini, of Chicago, of counsel), for appellees.

MURPHY, Justice.

The appellees, heirs-at-law of William C. Newton, deceased, brought this suit in ejectment in the circuit court of DuPage county against the Village of Glen Ellyn to recover possession of a lot located in said village. A jury having been waived, there was a trial by the court which resulted in a judgment for the appellees, from which this appeal was taken.

November 30, 1920, William C. Newton and Lavinia Newton, his wife, executed a deed, the pertinent parts of which are as follows: ‘The grantors for certain good considerations and for the uses and purposes hereinafter named do hereby convey and warrant to the Village of Glen Ellyn * * * the following described real estate. * * * It is expressly understood that said Village by its President and Board of Trustees shall, by official action, accept said described real estate as a gift to said Village, said premises to be used solely for municipal purposes, whereon shall be erected a municipal building or buildings within such time as shall be deemed reasonable, said acceptance by said Village for the uses and purposes above stated shall be expressed within ninety days from the date hereof.’

December 14, 1920, the village board adopted a resolution the pertinent parts of which are as follows:

‘Whereas, William C. Newton, now the oldest resident of the Village of Glen Ellyn and a son of Dr. Lensy Q. Newton one of the first settlers in this region, the first physician and the owner and platter of the original town of Danby, now Glen Ellyn, has generously conveyed to the Village the lot located on the northwest corner of Pennsylvania avenue and Main street, and known as Lot forty-three (43) * * * and whereon was located the old Newton homestead, that our Village may have a site for, and may in due time, erect thereon a suitable municipal building for general municipal purposes, said conveyance being conditioned on the acceptance by the village of said gift for the uses and purposes indicated in the deed of conveyance;

‘Therefore be it resolved by the President and Board of Trustees, in lawful meeting assembled,

‘First, that said gift be and the same is hereby accepted on the terms, conditions, and for the purposes prescribed in said deed of conveyance.

‘Second, that it shall be the aim and the intent of said board to carry out the object of said gift.

‘Third, that a proper, suitable and enduring memorial stone or tablet shall be established in a suitable and conspicuous place, commemorating the Newton name, its associations with this village, and the fact of the presentation or the gift of said lot by William C. Newton to the village.’

The lot was vacant at the time of the conveyance and the village has never used it for any purpose except for the planting of some shrubbery and the installation of a drinking fountain. At the time of the execution of the deed the village was using a municipal building which was in a bad state of repair. It was located near the lot in question and on the same street. The village continued the use of the old building until 1923, when it moved its offices to a building located on another street. In 1925, the village issued bonds and erected a substantial municipal building on the site where the old one had been located. In 1927, the village moved its offices into the new building and have used it continuously from that date. In 1928, appellees caused a written declaration of forfeiture to be served on the village and thereafter demanded possession of the lot. Possession was refused and the parties, who are appellees here, began an equitable action to quiet the title. The trial court sustained a demurrer to the bill and on appeal to this court the decree was affirmed. Newton v. Village of Glen Ellyn, 343 Ill. 489, 175 N.E. 770.

The crucial question is whether the lot was conveyed with a condition subsequent attached or was it conveyed under such terms as to be a mere covenant? A preliminary point arises as to whether the main question shall be determined solely by a consideration of the words contained in the deed, as is contended by the village, or shall it be determined from a consideration of the words in the deed and the contents of the resolution of the village board as appellees urge.

To render a deed operative to pass title there must be not only a delivery of the deed by the grantor but also an acceptance thereof by the grantee. The acceptance of the conveyance by the grantee is as essential to the passing of the title as the delivery by the grantor, and where the acceptance is not proved and the facts do not justify the presumption of law that the grantee has accepted, the title does not pass. Moore v. Flynn, 135 Ill. 74, 25 N.E. 844;Hill v. Kreiger, 250 Ill. 408, 95 N.E. 468;Coleman v. Coleman, 216 Ill. 261, 74 N.E. 701.

In this case the grantors did not leave the time of acceptance unlimited but provided that it had to occur within ninety days from the date of the deed. Under such terms, the time of acceptance within the ninety-day period became a condition precedent which had to be performed within the time specified, or the title would not pass. The resolution was the official action of the village...