Stewart v. Metcalf

• Decision Date: 30 June 1873
• Citation: 1873 WL 8287,68 Ill. 109
• Parties: JOHN F. STEWART et al.v.HENRY M. METCALF.
• Court: Illinois Supreme Court

68 Ill. 109

1873 WL 8287 (Ill.)

JOHN F. STEWART et al.

v.HENRY M. METCALF.

Supreme Court of Illinois.

June Term, 1873.

APPEAL from the Circuit Court of Pope county; the Hon. DAVID J. BAKER, Judge, presiding.

This was a bill in chancery, by John F. Stewart and others, against Henry M. Metcalf, for the specific performance of a written contract of the defendant for the sale and conveyance of a tract of land to Willis C. Piles. Piles sold the land to Amos Sawyer, who performed the conditions named in the written contract to entitle him to a deed. After his death, John F. Stewart bought the interest of a portion of his heirs, and he and the other heirs filed this bill.

Messrs. GREEN & GILBERT, for the appellants.

Mr. WESLEY SLOAN, for the appellee.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

This suit was instituted in the court below by the appellants, for the purpose of enforcing the specific performance of a contract to convey a certain tract of land.

It appears from the record that the contract sought to be enforced was evidenced by an instrument in writing, under seal, which was executed by appellee to one W. C. Piles; that Piles subsequently sold the land and executed his bond to convey the same to one Amos Sawyer, who was deceased before the commencement of this suit. The appellant Stewart claims as purchaser from two of his heirs at law, and the other appellants claim as his heirs at law.

The defense interposed on the trial in the court below, was, that the contract had not been performed, in this: that a part of the consideration was, that Piles agreed to convey to appellee a town lot near Keokuk, Iowa, which was considered and treated as a payment of $200 on the price to be paid for the land, and that Piles had refused to make the conveyance.

The court decreed that appellants should pay to appellee $360, being the estimated price of the lot at the time the contract was made, with the interest which had accrued thereon at the time the decree was rendered.

The only question now before us relates to the correctness of this decree.

The writing executed by appellee to Piles, acknowledges the payment, at the time, of $300, and concludes in these words: “The said Piles assumes the payment of the two notes, (alluding to two notes given by appellee to one Lewis Thomas,) which will be in full payment of said land, and when said Piles pays the two notes above described, then I agree and bind myself to make him a deed to said lands,” etc. It appears that after this contract was concluded, and, probably, before the parties had separated, Piles refused to convey the town lot to appellee for the reason that appellee had given a certain other note to Lewis Thomas for $150, which had been assigned to, and was then held by, one Simpson, and which was a lien upon the land; and, also, that one Fretz held a mortgage upon the land to secure the payment of $125. It was then agreed between them that appellee should execute to Piles his two promissory notes, payable in thirty and sixty days, and that Piles should convey to him the town lot upon his paying the notes. The notes were accordingly executed, and appellee took from Piles an instrument in writing, as follows:

“I have this day sold to Henry M. Metcalf one town lot, situated near Keokuk. I bought the said lot from W. C. Hodge, and it is the only lot or land I ever bought of said Hodge. The said Metcalf has this day executed to me his notes for the sum of $300, and when he pays said notes I am to make him a deed.

+-----------------------------+
                ¦Dec. 30, 1858. ¦W. C. PILES.”¦
                +-----------------------------+
                

It is not claimed that Amos Sawyer, when he purchased from Piles, had knowledge in fact of the transaction in regard to the town lot. Piles was in the actual possession of the land, and he, and those claiming in his right, have retained it ever since.

It is argued that Sawyer, being the purchaser of a mere equity, is chargeable with knowledge of all that occurred between appellee and Piles; that the failure of Piles to convey the town lot, is, to the extent of its estimated value, a failure in the consideration of the contract to convey the land, and that appellee should not be compelled to convey until this amount is paid to him.

This position, however correct it might be under a different state of facts, is not...