Staley v. William J. Murphy.Same v. Same.

• Decision Date: 31 January 1868
• Parties: DANIEL G. STALEYv.WILLIAM J. MURPHY.SAMEv.SAME.
• Court: Illinois Supreme Court

47 Ill. 241

1868 WL 4970 (Ill.)

DANIEL G. STALEY

v.WILLIAM J. MURPHY.SAME

v.SAME.

Supreme Court of Illinois.

January Term, 1868.

OPINION TEXT STARTS HERE

WRITS OF ERROR to the Circuit Court of McLean county; the Hon. JOHN M. SCOTT, Judge, presiding.

The facts in these cases, and the errors assigned, sufficiently appear in the opinion of the court.

Messrs. WILLIAMS & BURR, for the plaintiff in error.

1. Where a grantee, who holds an estate upon condition, conveys to another upon the same conditions by which he holds, it operates in law as an assignment, merely, of the first conveyance. Bacon's Abridgment, Lease, j, 3; Lloyd v. Cozens, 2 Ashm. 138; Platt on Leases, vol. 1, p. 9 et seq.; Smitley v. Van Winkle, 6 Cal. 605.

2. To enable a party to enforce a forfeiture, he must show a clear and undoubted right to do so. Chapman v. Wright, 20 Ill. 120.

3. The vendor must refund the money and notes if he elects to rescind the contract. Galbreath v. Crewell, 13 Ind. 336.

4. He who elects to rescind must rescind in toto. Jennings v. Gage, 13 Ill. 610; Buchanan v. Harney, 12 Ill. 336; Man hattan Company v. Beatty, 13 Barb. S. C. R. 641.

Mr. W. H. HANNA for the defendant in error.

1. The principal question in this case is, can the vendor of lands, after the vendee has failed to comply with the contract which lets him into possession, bring his action of ejectment? That he can, has been repeatedly decided by this court. 5 Gilm. 309; Chrisman v. Miller, 21 Ill. 234; Steele Biggs, 22 Ill. 643; Wyncoop v. Cowing et al., 21 Ill. 570; Miner v. Willard, 34 Ill. 39.

2. The notes were of no value after a forfeiture was declared. Chrisman v. Miller, 21 Ill. 234. Mr. JUSTICE LAWRENCE delivered the opinion of the Court:

Murphy, the defendant in error, on the first of December, 1863, bought a tract of land from one Moore, paying $134.40 in hand, and giving seven promissory notes for the balance, the last note maturing in 1870. On the 26th of March, 1864, Murphy sold the land to Staley, the plaintiff in error, receiving a larger price, and a larger payment in hand than he had given Moore, but taking notes for the unpaid purchase money for the same amounts maturing at the same date, and drawing the same rate of interest. By the first contract, Moore reserved the right of forfeiture in case of non-payment for thirty days after maturity, and by the second, Murphy reserved a similar right at the end of ten days. Staley entered into possession, made improvements, paid taxes, and also paid the note maturing in December, 1864. He failed, however, to make the payment of December, 1865, on the day it fell due, but tendered it in January, 1866, and Murphy refused to receive it, claiming the contract was forfeited. Thereupon Murphy brought an ejectment against Staley to recover possession of the premises, and Staley filed a bill to enjoin its prosecution, tendering at the same time the money due and the unpaid notes given by Murphy to Moore, of which Staley had procured the control, and praying a decree for a deed. The court gave judgment for the plaintiff in the ejectment, and dismissed the bill in chancery. Both records are brought here by Staley, and the same arguments having been filed in both, they will be disposed of in one opinion.

The contract between these parties authorized the vendor to rescind for non-payment, but contains no clause authorizing him to retain the purchase money already paid. It is urged by counsel for plaintiff in error, that Murphy had no right to rescind and bring an action of ejectment, until he had tendered back the purchase money paid and the unpaid notes. The ordinary rule is, that a party rescinding a contract must place the other party in statu quo. Applying this rule, this court held, in Murphy v. Lockwood, 21 Ill. 615, that the vendor of land seeking to rescind for non-payment by the vendee, should first return, or offer to return, the unpaid notes and purchase money. There are undoubtedly cases where the purchaser has been guilty of gross laches, in which the vendor would be justified in re-selling to a third person, without first tendering to the first purchaser the money paid, either holding it subject to his order, or until the equities between them, growing out of the contract and its violation by the purchaser, can be adjusted. Thompson v. Bruen, 46 Ill. 125. But...