Ortman v. Kane

• Decision Date: 21 March 1945
• Docket Number: No. 28263.,28263.
• Citation: 389 Ill. 613,60 N.E.2d 93
• Parties: ORTMAN v. KANE et al.
• Court: Illinois Supreme Court

389 Ill. 613

60 N.E.2d 93

ORTMAN

v.KANE et al.

No. 28263.

Supreme Court of Illinois.

March 21, 1945.

Appeal from Circuit Court, Livingston County; Ray Sesler, judge.

Action by F. A. Ortman against Agnes H. Kane, conservatrix of Mildred Kavanaugh, an incompetent, such incompetent, and E. J. Gable and wife, to determine whether plaintiff should deliver the incompetent's deed, held by plaintiff in escrow, to defendants Gable, pay mortgage incumbrances and taxes on realty conveyed from sum tendered by such defendants as purchase price of realty, and pay the balance to defendant conservatrix, or return such sum to defendants Gable and the deed to the incompetent or conservatrix, in which defendants Gable filed a counterclaim for performance of the incompetent's contract to convey the realty. From a decree ordering plaintiff to accept the tender and deliver the deed to defendants Gable, pay the amounts due on, and obtain and record releases of the mortgages, defendant conservatrix and defendant incompetent, by the conservatrix, appeal.

Reversed and remanded, with directions.

Adsit, Thompson & Herr, of Pontiac, for appellants.

Stevens R. Baker, of Pontiac (Morgan, Pendarvis & Morgan, of Peoria, of counsel), for appellees.

WILSON, Justice.

This is an appeal from a decree of the circuit court of Livingston county. The action grows out of a contract for the sale of a farm, entered into on June 5, 1943, between Mildred Kavanaugh and E. J. Gable and Lydia F. Gable, his wife. The purchase price was $25,000. The contract recited the payment of $2500 cash, and that the balance was to be paid on or before August 1, 1943. It provided that if the Gables should first make the payments and perform the covenants by the contract to be performed by them, that Mildred Kavanaugh would convey to them the premises described therein. By the contract, Mildred Kavanaugh was obligated to pay the 1942 taxes. She was also obligated to pay the interest on a first mortgage on the premises to September 1, 1943, and the interest on a junior mortgage to the date of payment.

The obligation of the Gables to pay the purchase price was stated in the contract in the following language: ‘That said second party (the Gables) hereby covenants and agrees to pay to said party of the first part (Mildred Kavanaugh) for said premises, the sum of Twenty-five thousand and No/100 Dollars in the manner following: Twenty-five hundred Dollars and No/100 cents cash in hand, upon the execution of this agreement, receipt whereof is hereby acknowledged; the remainder in cash on or before August 1, 1943, and on the receipt of the deed as herein provided and furnishing of a mechantable title in said first party.’

At the time the contract was executed, Mildred Kavanaugh also executed a warranty deed conveying the premises to the Gables. With reference to this deed, the contract recited that the deed was executed in accordance with the contract ‘and delivered to F. A. Ortman, Pontiac, Illinois, together with a copy of this contract. Said deed to be held by the said F. A. Ortman in escrow and delivered to the second party (the Gables) upon full compliance by said second party with the provisions of this contract.’ The deed was delivered to Ortman. There were no further provisions in the contract with reference to the terms or agreement under which the deed was delivered to Ortman, or giving to him any other powers concerning the holding or the delivery of the deed, or in connection with the transaction, in any manner, except, upon the default of the Gables, he was to surrender all papers, including the deed, to Mildred Kavanaugh.

On July 7, 1943, Mildred Kavanaugh was adjudged an incompetent by the probate court of Livingston county. Agnes H. Kane, her mother, was appointed as her conservatrix and qualified as such.

On July 29, 1943, E. J. Gable and Lydia F. Gable served a notice on Ortman. After referring to the contract, the notice recited ‘that we will, on Saturday, July 31, 1943, tender to you, as such escrow holder, the balance due on said purchase price and shall request from you the delivery of said deed, and further that you pay, out of said purchase price so paid by us, the 1942 taxes on said premises, and the balance due on the mortgage encumbrances on said premises in accordance with said contract.’ On the same day the Gables served a notice on Agnes H. Kane, which was addressed to her ‘as conservator for Mildred Kavanaugh.’ This notice, after referring to the contract of June 5, and the deed then in the possession of Ortman, stated: ‘You are further notified that we are going to fully comply with our terms of said contract and will pay to F. A. Ortman as such escrow holder, the balance due upon said purchase price on Saturday, July 31, A. D. 1943, and demand from him the said deed so held in escrow, and further request him to pay, out of the money to be paid to him, the 1942 taxes on said premises, and the balance due on the mortgage encumbrances on said premises, in accordance with the terms of said contract.’

On July 30, 1943, Agnes H. Kane, as conservatrix for Mildred Kavanaugh, served a notice on Ortman. In this notice, after referring to the notice served on her by the Gables, it was stated, ‘You are further notified that I am advised by the said E. J. Gable and Lydia F. Gable, that they intend, on July 31, 1943, to make certain payments to you, which they claim to be in compliance with said alleged contract, and demand from you the delivery of said deed; and I notify you that under the terms of said alleged and pretended contract no authority is given to you, as escrowee, to accept the purchase price, or any part thereof for said Mildred Kavanaugh. I further notify you that the said Mildred Kavanaugh on, to-wit: June 5, 1943, was then legally incompetent to execute said contract for sale, said deed and said escrow agreement, and that no effect should be given to the alleged contract of the said Mildred Kavanaugh now and then legally incompetent. For the reasons above stated, I demand that you refuse to deliver said deed to the said E. J. Gable and Lydia F. Gable.’

On August 9, 1943, Ortman filed this suit. By the complaint he alleged the making of the contract between Mildred Kavanaugh and the Gables on June 5, 1943; the appointment of the conservatrix of Mildred Kavanaugh on July 7, 1943; the giving of the notice by the Gables to Ortman on July 29, 1943, and the notice given by Agnes H. Kane to Ortman on July 30, 1943. By paragraph six of the complaint, he alleged that on July 31, 1943, the Gables tendered to him the sum of $25,000 and demanded that he deliver the deed; that out of said tender, he pay the mortgage indebtedness, including interest to September 1, 1943; that he pay the 1942 taxes; and that he pay the balance, after placing the revenue stamps on the deed, to Agnes H. Kane, as conservatrix. The prayer of the complaint was for judgment whether he should deliver said deed and pay out of said tender the mortgage encumbrances, with interest, and the 1942 taxes, and place revenue stamps on said deed, and pay the balance to Agnes H. Kane, as conservatrix, or whether he should return said tender to the Gables and the deed to Mildred Kavanaugh or to her conservatrix. Copies of the contract, the deed, the notice of July 29, 1943, served on Ortman by the Gables, and the notice of July 30, 1943, served on Ortman by Agnes H. Kane, the conservatrix, were attached to and made a part of the complaint by reference. Mildred Kavanaugh and her conservatrix and the Gables were named as defendants in the complaint.

The Gables filed an answer admitting all of the allegations of the complaint. They also filed a counterclaim which, by reference, included and adopted all the allegations in the complaint. They then alleged the giving of the notice to Ortman on July 29, 1943; that Mildred Kavanaugh had not been adjudged an incompetent at the time the contract was entered into; that the contract was fairly entered into and was fair and equitable and that the consideration agreed to be paid for said property was adequate. They then alleged: ‘That counterclaimants have always been ready to comply with the terms of said contract; that they have done everything possible on their part, to carry out the contract; that the Conservator has refused, and still refuses, to consent that the escrow holder deliver the deed; and that the terms of the contract be performed.’ They asked for a decree for the specific performance of the contract; that Ortman pay the 1942 taxes, and for the revenue stamps on the deed. There was attached to the counterclaim a copy of the notice served by the Gables on Agnes H. Kane as conservatrix, on July 29, 1943, which was made a part of the counterclaim by reference. No tender of the payment of the purchase price was made by the counterclaim.

The conservatrix and Mildred Kavanaugh, by her conservatrix, filed a joint answer to the complaint. By this answer they admitted all of the allegations in the complaint except paragraph 6, which alleged the tender to Ortman by the Gables of the sum of $25,000 on July 31, 1943. As to that paragraph they alleged under oath, that they were without sufficient knowledge to make answer. They also filed an answer to the counterclaim in which they admitted the service of the notice on July 29, 1943, by the Gables on Ortman, and the notice of July 30, 1943, served on Ortman by the conservatrix. They denied the other averments in the counterclaim and specifically alleged ‘that counterclaimants are in default for failure to tender to Mildred Kavanaugh, or her Conservator, the balance of the purchase price of the land in accordance with the terms, and within the time limited by the alleged contract, and, by reason thereof, can take nothing in this suit.’ The answer to the counterclaim then alleged that on June 5, 1943, when the contract was entered into, the land was of the value of $31,000 and upwards;...