Sutherland v. George W. Parkins.

• Decision Date: 30 September 1874
• Citation: 75 Ill. 338,1874 WL 9249
• Parties: GEORGE W. SUTHERLAND et al.v.GEORGE W. PARKINS.
• Court: Illinois Supreme Court

75 Ill. 338

1874 WL 9249 (Ill.)

GEORGE W. SUTHERLAND et al.

v.GEORGE W. PARKINS.

Supreme Court of Illinois.

September Term, 1874.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. SAMUEL M. MOORE, Judge, presiding.

Mr. ALLAN C. STORY, and Mr. RUFUS KING, for the appellants.

Mr. J. W. PITMAN, for the appellee.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

This bill was filed by the heirs of George G. Sutherland, deceased, to enforce the specific performance of a contract alleged to have been made between their ancestor and defendant in regard to the sale of the tract of land described in the bill. The contract is in writing, bears date May 10, 1871, and was delivered to Sutherland in his lifetime. It is made an exhibit and a part of the bill. By its terms, defendant offered to sell to Sutherland a certain forty acres of land, described by its numbers, for $200 per acre, payable as follows: $2,000 at the time of purchase, and the other $6,000 to be secured by six promissory notes, with mortgage upon the premises, payable in equal yearly installments, with eight per cent interest per annum. Conveyance to be by warranty deed, except as to lease and drainage, incumbrances and taxes. This agreement was only signed by defendant, and contained this clause: “The above proposition will be accepted by me at any time during one year from date, but not longer.”

Sutherland died on the 10th day of June, 1871, just one month after the date of this proposition of sale. Whether he ever accepted the offer therein contained is the principal question in the case. It arises upon demurrer to the bill.

The only allegation as to the acceptance of the provisions of the contract by Sutherland during his lifetime is as follows: “The said George G. Sutherland was in possession of said premises at the time, under a lease from said Parkins, and remained in possession at the time of his death, and at once proceeded to fence said premises, and by himself and his heirs herein have since paid all taxes assessed thereon, and retained possession of said lands, cultivating and using the same.” This, with the additional charge the writing had been recorded on the 16th of May, and re-recorded after the records of Cook county had been destroyed by fire, are all the allegations of the bill on the question of acceptance by Sutherland of the contract in his lifetime. Of course, the demurrer admits the allegations of the bill to be true, and construing them even favorably for complainants, we do not think the bill contains facts from which it may be inferred Sutherland ever accepted the proposition as contained in defendant's offer of May 10, 1871.

It is not alleged he ever notified defendant of his acceptance of the proposition, nor that he ever offered to pay the cash payment, and secure the balance of the purchase price of the land by his notes and a mortgage upon the premises. These were conditions precedent, and indispensable to make a valid contract. Without such an offer, there could be no acceptance. They were the terms on which the owner was willing to sell his property, and having offered no other he could not be compelled to part with it until there had been an offer of compliance within the time limited, with the conditions proposed. Nothing appears from which an inference can be drawn that Sutherland ever obligated himself to comply with the terms of the proposition.

It is said he was in possession under a lease from defendant, and that he proceeded at once to fence the premises. The offer of sale made to him did not authorize any such acts. He had been previously in possession under a lease, and his improvements by him made, in the absence of any allegation to the contrary, may be referable to that relation. It is not alleged these acts were done under the contract, nor in fulfillment of...