Smith v. Dugger

• Decision Date: 16 February 1924
• Docket Number: No. 15468.,15468.
• Citation: 142 N.E. 243,310 Ill. 624
• Parties: SMITH et al. v. DUGGER.
• Court: Illinois Supreme Court

310 Ill. 624

142 N.E. 243

SMITH et al.

v.DUGGER.

No. 15468.

Supreme Court of Illinois.

Dec. 19, 1923.

Rehearing Denied Feb. 16, 1924.

Bill by Martha M. Smith and others against E. A. Dugger, to compel specific performance of a contract to purchase realty. From a decree of dismissal, plaintiffs appeal.

Reversed and remanded, with directions.

Thompson, J., dissenting.Appeal from Circuit Court, Macoupin County; Frank W. Burton, judge.

Harry De Frates, of Palmyra, and Jesse Peebles, of Carlinville, for appellants.

Murphy & Hemphill, of Carlinville, for appellee.

FARMER, C. J.

December 27, 1919, by a written contract duly executed, appellants agreed to ‘convey and assure to the party of the second part in fee simple, clear of all incumbrance whatever, by a good and sufficient warranty deed and an abstract to date,’ a farm of 162 acres in Macoupin county, and appellee agreed to pay for the same $35,640 on or before March 1, 1920, at which time possession was to be given. Appellee, claiming that the title was defective, refused to carry out the agreement, and appellants filed their bill, seeking specific performance of the contract. A decree was entered, dismissing the bill for want of equity, and this appeal followed.

This being a bill by the vendor for specific performance of a contract for the sale and conveyance of land, to entitle him to a decree he must show that the title which he offers to convey is not a doubtful title, and is not one which will expose the vendee to litigation with parties not now before the court, and therefore not bound by its decision. Where there is reasonable doubt as to the validity of the title, the court will not sepcifically enforce a contract of this character. Weberpals v. Jenny, 300 Ill. 145, 133 N. E. 62;Close v. Stuyvesant, 132 Ill. 607, 24 N. E. 868,3 L. R. A. 161.

The abstract furnished disclosed that the title to 70 acres of the land involved was in 1873 in Joseph Crum, and that in that year he conveyed it by warranty deed to Frederick, Charles, and Isaac Crum, the consideration being $3,600. The deed contained this provision:

‘Now, in case of the death of either of the above vendees before marriage and legitimate heirs, then and in that case the above-described lands shall vest in the vendee or vendees that are living and in no other person or persons whomsoever; and further, the above-named vendees being my legitimate heirs, I reserve the exclusive control and right to use in any way for my benefit the above-described lands during my natural lifetime.’

The grantees named, by their several warranty deeds, have conveyed their interest in the 70 acres involved to appellants' predecessor in title. An affidavit of Fred O. and C. O. Crum, attached to the abstract of title, shows that Joseph Crum died in 1888; that Frederick and Charles are children of Joseph; that Frederick is now 62 years of age and has never been married; that Charles is now 62 years of age, is married, and has six living children; that Isaac, the third grantee named in the deed of 1873, was married twice, the first time in 1888, and the second time in 1894; that two children of the first marriage and four children of the second marriage are now living; that Isaac died in 1918.

The deed conveyed to the three sons of the grantor a fee determinable upon their dying before marriage and having children born, in which event the interest of the one dying should go to the survivor and to no other person. Appellee does not question the validity of appellants' title to the interest of Charles and Isaac Crum, but his contention is that, if Frederick should die after the death of Charles without having married and had issue born, the heirs of the grantor, Joseph Crum, would have an interest in the share of Frederick. The decision of this case we think depends on whether the death of the grantees without marriage and legitimate children, referred to in the deed, meant death before the grantor died, or death at any time. If the deed had been a direct conveyance to the grantees, and if any of them died without marriage and birth of a child, then to go to the survivors, the reference as to death would mean death at any time, before or after the death of the grantor. Fifer v. Allen, 228 Ill. 507, 81 N. E. 1105;Ahlfield v. Curtis, 229 Ill. 139, 82 N. E. 276. In this case the remainder conveyed to the grantor's three sons vested in interest but not in possession, for it was preceded by a life estate in the grantor and falls within the rule announced in Lachenmyer v. Gehlbach, 266 Ill. 11, 107 N. E. 202:

‘If a particular estate precedes a gift over, the latter will usually take effect if the contingency happens at any time during the period of the particular estate. In such a case, death without issue means death before the death of the life tenant, unless the will shows that the testator intended to refer to a later date than the termination of the life estate.’

That rule has been approved in numerous subsequent decisions. On this question this case cannot be distinguished from Harder v. Mathews (No. 14244) 141 N. E. 442, where the rule above quoted was discussed and all the cases referred to in which that rule was involved. The Harder Case was a conveyance by deed reserving a life estate to the grantor of a fee to the grantee, with limitation over that if she died without leaving a child or descendant of a child the land was to go to the grantor's living grandchildren. It was held in that case, which is in harmony with previous decisions cited, that death of the grantee meant death during the continuance of the life estate reserved to the grantor, and, the grantee having survived the grantor,her title became indefeasible. There is no language in the deed to take this case out of the rule of construction sustained in the Harder Case and the cases cited in the opinion, and it was held in...