Trustees of Sch. v. Clippinger

• Decision Date: 21 November 1949
• Docket Number: No. 31004.,31004.
• Citation: 88 N.E.2d 451,404 Ill. 202
• Parties: TRUSTEES OF SCHOOLS v. CLIPPINGER et al.
• Court: Illinois Supreme Court

404 Ill. 202

88 N.E.2d 451

TRUSTEES OF SCHOOLS

v.CLIPPINGER et al.

No. 31004.

Supreme Court of Illinois.

Sept. 22, 1949.

As Modified on Denial of Rehearing Nov. 21, 1949.

Trustees of Schools instituted condemnation proceedings against Helen Clippinger, Allan A. Myers, and others to condemn realty.

From a judgment of the Circuit Court of Du Page County, Harry W. McEwen, J., dismissing the petition, the plaintiff appealed.

The Supreme Court, Crampton, J., affirmed the judgment, holding that plaintiff waived a provision in contract to purchase such realty that contract should be performed within six months, that contract was in effect, and that plaintiff was not entitled to condemn the realty.L. Dow Nichol, Jr., and Tenney, Sherman, Rogers & Guthrie, Chicago (Henry F. Tenney, and S. Ashley Guthrie, Chicago, of counsel), for appellant.

Russell W. Kenney, Wheaton, for appellee.

CRAMPTON, Justice.

Petitioner-appellant, Trustees of Schools of District No. 41, Du Page County, appeals from an order of the circuit court dismissing its petition for condemnation of a lot for a playground immediately adjacent to the junior high school in Glen Ellyn.

The petition and a motion to dismiss filed by the defendant Allan A. Myers were the only pleadings in the case. Defendant urged only the one point that a valid contract existed between the parties for the purchase of the lot and that, therefore, the petition could not be filed. The court sustained this motion and dismissed the petition.

Defendant introduced no evidence, all the salient facts necessary to a determination hereof having been supplied by petitioner's witnesses and exhibits.

Title to the premises in question was acquired by Myers as sole devisee under the foreign will of his aunt, Lucy A. (Lucile) Rhoades, who died a resident of Milwaukee, Wisconsin, in 1939. On August 29, 1945, Myers sold the premises to the board of education for $6800, and under the terms of the agreement the board was entitled to immediate possession, assumed the taxes, and was given the right to remove all structures and to grade and fill the lot. Myers agreed to convey a good title within six months therefrom. There was no provision that time was of the essence. The board knew of the existence of the will at the time the contract was made.

One year later, and six months after title was to have been conveyed under the terms of the contract, the board removed the old dilapidated buildings on the property and graded and filled the lot, prepared plans for improvements thereon, and, as far as the record shows, remained in possession.

The will was not actually admitted to probate until May 24, 1948, nearly four months after the filing of the condemnation petition. The petition for letters and the will were filed March 14, 1946, and a proof of heirship was taken and filed nunc pro tunc as of March, 1941. The petition for letters was sworn to September 5, 1941. The long delay in the probate proceedings is not explained by the record. During the interim, frequent inquiries had been made of Myers as to the status of the probate and title proceedings.

The petition for condemnation, filed January 20, 1948, recited, among other things, that negotiations for the purchase from Myers had failed and petitioners had been unable to agree with the ‘owners and parties interested in said property as to the compensation to be paid.’ All of the nieces, nephews, grand nieces, and grand nephews and ‘Unknown owners' were made parties defendant. These parties, other than Myers, had no interest whatsoever in the premises, except the bare right to contest the will. Since real estate passes directly on death to the devisees thereof, Myers, as sole devisee, was the only real party in interest and could contract for the sale of his property immediately after the death of the testator, subject only to such title as would be acceptable to the purchaser. We, therefore, think the provisions of the Eminent Domain Act permitting the taking of property where the owner is incapable of consenting, and the...