Vail v. Drexel

• Decision Date: 31 October 1881
• Citation: 9 Bradw. 439,9 Ill.App. 439
• Parties: ELLEN P. VAIL, Impl'd, etc.v.JOSEPH W. DREXEL.
• Court: United States Appellate Court of Illinois

9 Ill.App. 439

9 Bradw. 439

ELLEN P. VAIL, Impl'd, etc.

v.JOSEPH W. DREXEL.

Appellate Court of Illinois, First District.

October Term, 1881.

OPINION TEXT STARTS HERE

ERROR to the Circuit Court of Cook county, the Hon. E. S. WILLIAMS, Judge, presiding. Opinion filed November 11, 1881.

On the 8th day of November, 1869, Joseph W. Drexel, the defendant in error, then of the city of Philadelphia, entered into a written agreement with Asa Vail and Nicholas J. Vail, of Chicago, whereby Drexel agreed to sell to said Vails 320 acres of land lying in the town of Lake, in Cook county, for the agreed price of $168,000, to be paid in installments within three years from the first day of January, 1870, in the manner specified in the agreement.

The Vails were to subdivide the land and sell the same at not less than $600 per acre, and for not less than twenty per cent. of the sale price in cash at the time of making sales; and as fast as sales were made, Drexel was to give the purchasers contracts for a deed. The Vails were to bear the expenses attending the subdivision and sale of the property, and all money received by them on sales was to be paid over to Drexel as fast as received; but they were allowed to retain ten per cent. of the amount of the sale, to be expended in improving the property, advertising, &c. The ten per cent. so retained was not to be considered as payment on the purchase price, but in the event that the contract should become forfeited, or if for any reason the Vails should be unable to carry it out, the ten per cent. retained by them was to be taken and considered as a fair commission on sales made, and as full payment for all services and disbursements made by them.

The agreement provided that if the Vails should not, before the close of the year 1870, make sales to the amount of $40,000, and pay over the money (except the ten per cent.), and deliver to Drexel the contracts for the deferred payments as soon as executed by the purchasers; or if the cash payments to Drexel in the year 1870 should not amount to $10,000, exclusive of $1,825, to be paid in lieu of interest for that year, then the agreement was to be null and void, and Drexel was to retain the moneys and contracts of sales that had come to his hands, and the Vails were to own and retain the amounts which they might become entitled to retain as ten per cent. on the sales made.

The agreement further provided, that if the Vails should not make sales during the year 1871 to the amount of $70,000, or if the cash payments to Drexel in that year should not aggregate the sum of $21,000, exclusive of interest payments, the agreement was to become void.

By the eighth clause in the agreement, it is provided that if the Vails shall not before the expiration of the year 1872, have paid over to Drexel the full sum of $168,000, with interest as stipulated, that then and from thenceforth the contract was to become null and void. Time was expressly made of the essence of the contract, and any lack of promptness in fulfilling any of its conditions was to work a forfeiture, and to determine all rights under it of the party in default.

There were several extensions and modifications of the contract, the first of which, bearing date Nov. 15th, 1870, provided that if the sales of 1870 should fall short of $40,000, the contract should not on that account be forfeited, but the sales of 1871 should be increased by as much as the sales of 1870 fell short; the rate of interest was raised from six to seven per cent.; and it was also agreed that if the cash payments made by the Vails in 1870 should not amount in the aggregate to $11,825, the contract should not for such failure be forfeited, but the deficit should be made up in 1871. And there was the further stipulation, that if the modifying agreement should go into effect, it should be taken as a part of the original contract, and that it was to change the terms of the original only as specifically set forth, and that any failure to comply with the original contract as modified, should work the same result as to forfeiture as was provided for in the original contract.

A second modification was made December 22, 1871, to the effect that any deficiencies in the amounts provided for in the original contract, as already modified, to be paid by the Vails, or in the amount of sales to be made during the year 1871, should be added to the amounts respectively required to be sold and paid during 1872; and said original contract was not to be forfeited on account of such deficiencies, but was to remain unchanged in all other respects.

On the 15th day of November, 1872, the contract was extended for one year, from January 1, 1873, to January 1, 1874, on condition that the Vails should pay interest at the rate of eight per cent. per annum, on all amounts due and unpaid after January 1, 1873.

February 2, 1874, by another and final modification, it was agreed to extend the time of performance until January 1, 1875, on condition of the payment of interest at ten per cent. per annum on all sums due January 1, 1874. In other respects the contract to remain unchanged.

The Vails entered upon the performance of the contract, subdivided the property, and commenced making sales.

In August, 1871, Asa Vail, with the consent of Drexel, sold and assigned his interest in the contract to Nicholas J. Vail. Nicholas J. Vail died intestate May 8th, 1874, leaving a widow and heirs-at-law, as stated in the bill, and they are made parties defendant to the suit. Letters of administration on the estate of Nicholas J. Vail were applied for, but, so far as appears, none were ever issued.

There was paid on the contract, according to the statement of the defendant in error, $71,534.04, of which $5,416.88 was paid in 1870; $15,104.61 in 1871; $25,787.50 in 1872; and $25,225.04 in 1873 and 1874. The amount as stated by the plaintiff in error is somewhat larger. The Vails also expended in improvements, advertising, etc., about the sum of $29,000.

Drexel filed this bill March 23, 1875, making the heirs of Nicholas J. Vail, and Charles L. Cherry parties defendants, and praying that the contract may be decreed to have become null and void, that the same may be removed as a cloud upon the complainant's title, and that the defendants may be enjoined from receiving further payments on outstanding contracts, or making new ones for the sale of any of the land, and from meddling or interfering with said property. There was also a prayer for general relief. Answers were filed, proofs taken, and a receiver was appointed to take possession of the property and collect the moneys due or to become due on outstanding contracts, and the defendants were required to deliver to the receiver all contracts in their possession.

The complainant subsequently, by leave of the court, amended his bill by adding a prayer that unless the defendant Vails, or some of them, within a time to be fixed by the court in its final decree, pay the balance due on the contract, to be determined either on an accounting, or from the proofs on the hearing, that they “be forever barred and foreclosed from setting up any claim to any interest or equity in said premises by reason of said contract.”

The case was referred to a master, who reported that there was due to the complainant on the contract, $159,629.13. The court confirmed the report and rendered a final decree that unless the amount found due by the master was paid within sixty days from the date of the decree, that then and from thenceforth the said contract should be null and void, and the defendants be forever barred, foreclosed and enjoined from asserting any claims by reason of said contract to the land described in the bill.

Mr. ROBERT RAE and Mr. JAMES W. BEACH, for plaintiffs in error; that the administrator of the vendee was a necessary party defendant, it being his duty to complete the contract in the manner pointed out in the statute, cited Rev. Stat. 1874, 124, § 110.

The title of the vendor was that of mortgagee holding the title to secure payment of the balance: Lucas v. Harris, 20 Ill. 165.

Bills to remove a cloud or quiet title can be maintained only when the complainant is in possession, or when he claims to be the owner, and the lands are unoccupied and unimproved: Hardin v. Jones, 86 Ill. 313.

An answer under oath is to be taken as true: Payne v. Frazier, 4 Scam. 55; Knapp v. Gass, 63 Ill. 492; Stone v. Moore, 26 Ill. 165.

The bill, having no equity, is incapable of amendment: Puterbaugh v. Elliott, 22 Ill. 157.

Tender of a deed of the land should have been made before filing the bill: Sanford v. Emory, 34 Ill. 468; Murphy v. Lockwood, 21 Ill. 615; Headly v. Shaw, 39 Ill. 354; Runkle v. Johnson, 30 Ill. 328; Peck v. Brighton Co. 69 Ill. 200.

The doctrine of equity is compensation, not forfeiture: Mix v. Beach, 46 Ill. 311; Peck v. Brighton Co. 69 Ill. 200.

The court was not warranted in granting a receiver and injunction: First Nat. Bank v. Gage, 79 Ill. 207.

On filing the answers the injunction should have been dissolved as matter of course: Parkinson v. Trousdale, 3 Scam. 367.

A solicitor for complainant should not have been appointed receiver: Baker v. Backus, 32 Ill. 82; Benneson v. Bill, 62 Ill. 408.

The answer having disclosed the existence of other persons interested in the suit, they should have been made parties, and it was error to proceed to a decree without them: Leitze v. Clabaugh, 59 Ill. 136; Winkleman v. Kiser, 27 Ill. 21; Woolner v. Wilson, 5 Bradwell, 439; Hopkins v. Roseclare Lead Co. 72 Ill. 373.

The time allowed by the decree in which to make payment was too short: Farrell v. Parlier, 50 Ill. 274.

The holders of the beneficial interest in the mortgage should have been made complainants: Winkleman v. Kiser, 27 Ill. 21; Moore v. School Trustees, 19 Ill. 88; Hahn v. Huber, 83 Ill. 243.

The contract was the only evidence of the debt; and it being found among the papers of the vendee after his death, it is ...