Wadhams v. Swan

• Decision Date: 23 January 1884
• Citation: 1884 WL 9772,109 Ill. 46
• Parties: SETH WADHAMSv.ETHEL L. SWAN.
• Court: Illinois Supreme Court

109 Ill. 46

1884 WL 9772 (Ill.)

SETH WADHAMS

v.ETHEL L. SWAN.

Supreme Court of Illinois.

Filed at Ottawa Jan. 23, 1884.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the First District;--heard in that court on appeal from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding.

On the 22d of June, 1861, George E. Cook, being the owner in fee of section 17, town 36 north, range 14 east, in Cook county, subject to the right of way of the Illinois Central Railroad Company, whose line of road passed through and over a part thereof, including the south third of said section, by deed of that date conveyed the same, except so much as was occupied by the railroad, to Robert Innes, who died intestate prior to August 1, 1872, leaving Catharine A. Innes, his widow, and three daughters, his only heirs. In a partition proceeding between them, the south third of this section was allotted to Ethel L. Innes, now Ethel L. Swan, the appellee in this case. On the 19th of August, 1873, Ethel L. Innes, for the consideration of $26,666.66, conveyed by warranty deed, with full covenants of title, the said south third of the section to Seth Wadhams, the appellant, the said Catharine A. Innes, her mother, joining in the deed as a grantor. At the time of this conveyance the said Ethel was a minor, and did not attain her majority until in August, 1874. For the deferred payments on this purchase Wadhams gave to the said Ethel his two notes, of the same date of the conveyance, for the sum of $10,666.66 each, which were secured by a deed of trust on the property, from Wadhams to William H. Holden, trustee, the trust deed containing this recital: “Said notes are given for the purchase money that is to be paid for said land, and said Ethel L. Innes is to confirm the sale of said land immediately upon her arriving at full age, and if she fails or refuses to do so, said notes may not be paid until she does confirm the sale, and this trust deed shall not be foreclosed until said sale is confirmed by said Ethel L. Innes.” The note now sued on is one of the notes secured by said trust deed, and matured on the 19th of August, 1876. After appellee attained her majority, to-wit, on the 22d of August, 1874, she executed another deed ratifying her former conveyance, in conformity with her agreement as set forth in the trust deed.

It is conceded the strip of ground occupied by the railroad of the Illinois Central on the south third of the section, and which was excepted from the operation of Cook's deed to Innes, contains 8.72 acres, and that fences on either side thereof have been continuously maintained by the railroad company for the last fifteen years. It is also admitted the railroad was constructed at its present location across the section prior to July, 1854, and while the land belonged to the United States. The conveyance of the south third by Ethel to Wadhams, as above stated, was in pursuance of a contract of sale made by her and her two sisters to him, of the entire section, for the sum of $80,000, which, assuming the section contained just 640 acres, (the estimated quantity by government survey,) would make $125 per acre. The section, however, contains 646 acres, being an excess of six acres over that amount. When the note sued on matured, the appellant declined to pay the full amount, on the ground, as he claimed, the land was purchased by the acre, and as the 8.72 acres of it covered by the right of way of the Illinois Central was of no value to him, there was a breach of appellee's covenants in her conveyances, and a consequent failure of consideration of the note sued on to the amount of $1090, this sum being, as is claimed by appellant, the estimated value of the 8.72 acres of land, at $125 an acre. After some controversy, it was agreed that appellant should pay to appellee the whole of the note, excepting this balance of $1090, and interest thereon, which was to be without prejudice to either party, and it was accordingly done. It also appears the said George E. Cook executed a deed to the said Catharine A. Innes, bearing date August 30, 1880, of all his interest in so much of the said section 17 as is occupied by the Illinois Central railroad, and which is subject to the easement of said company. The present suit is brought on the note maturing August 19, 1876, to recover the above balance.

The declaration contains three counts,--the first, a special count, setting out all the facts as above stated; the second, a special count on the note, without setting out the facts specially; third, the consolidated common count. To the declaration the defendant filed three pleas: First, general issue; second, that the plaintiff had failed to confirm the sale of land to the defendant; third, that the consideration of the note, to the extent of the unpaid balance, had failed, by reason of the Illinois Central's right of way over the land. Issues were joined on the first and third pleas, and a demurrer was sustained to the second. The cause was tried by the court without a jury, resulting in a judgment for the plaintiff for the unpaid balance on the note, which, on appeal, was affirmed by the Appellate Court for the First District, and Wadhams brings the case here for review.

Messrs. HOLDEN & FARSON, for the appellant:

A contract to convey land by a good and sufficient warranty deed, is not satisfied by a good and sufficient warranty deed which conveys no title, or an incumbered one. Conway v. Case, 22 Ill. 127.

Where a good title to land is the only consideration for a note, and no good or beneficial title can be made, no recovery can be had on the note. This defence may be availed of by way of a plea of failure of consideration, or want of consideration, or by way of recoupment. Schuchmann v. Knœbel, 27 Ill. 177; Streeter v. Streeter, 43 Id. 163; Peck v. Brewer, 48 Id. 62; White v. Sutherland, 64 Id. 192; Waterman v. Clark, 76 Id. 431; Oertel v. Schrœder, 48 Id. 133; Wilson v. Wood, 27 Id. 203. The consideration of the note has failed to the value of the estate which the defendant did not and can not enjoy. Christy v. Ogle's Heirs, 33 Ill. 298.

Under the evidence the title to the right of way, subject to the easement, is worthless, and consequently we are entitled to recoup the purchase price paid for the title free from such easement. Major v. Dunnavent, 25 Ill. 262; Weber v. Anderson, 73 Id. 439; Wood v. Kingston Coal Co. 48 Id. 356.

We are at liberty to show just what the consideration was, and how it was arrived at, when it was stated at a gross sum in the deed. Sidders v. Riley, 22 Ill. 109; Booth v. Hynes, 54 Id. 363; Kinzie v. Pearson, 2 Scam. 515; Richardson v. Clow, 8 Bradw. 91; Belden v. Seymour, 8 Conn. 304; Lawton v. Buckingham, 15 Iowa, 22; Wilkinson v. Scott, 17 Mass. 249; Kimber v. Ferguson, 7 Minn. 442; Irvine v. McKeon, 23 Cal. 475; Coles v. Solsby, 21 Id. 47; Bingham v. Weiderwax, 1 Conn. 514; McCrea v. Purmost, 16 Wend. 460; Morse v. Shattuck, 4 N. H. 229.

As to defendant's right to recoup the damages growing out of the plaintiff's inability to make a title free from incumbrance, see Brigham v. Hawley, 17 Ill. 39; Waterman v. Clark, 76 Id. 430; Bross v. Cairo and Vincennes R. R. Co. 9 Bradw. 366; Oertel v. Schrœder, 48 Ill. 136.

The real consideration of the note was the estate bought, and not the bond or covenant for title. Mason v. Wait, 4 Scam. 134; Hall v. Perkins, 4 Id. 548; Schuchmann v. Knœbel, 27 Ill. 177; Deal v. Dodge, 26 Id. 460; Davis v. McVickers, 11 Id. 328; Lull v. Stone, 37 Id. 229.

Mr. JOHN SHOWALTER, for the appellee:

The right of way of a railroad corporation, whether it be spoken of as an irrevocable license, or as an easement, is an incumbrance, merely. Quimby v. Vermont Central R. R. Co. 23 Vt. 387; Richardson v. Palmer, 38 N. H. 212; Beach v. Miller, 51 Ill. 208; Dobbins v. Brown, 12 Pa. St. 80; Rawle on Covenants, 79, 100.

The grantee of an entire tract, part of which is thus incumbered, has his action on the covenant against incumbrances, and the measure of damages is the injury to the market value of the entire tract by reason of the incumbrance. If there be no injury, only nominal damages can be recovered. Stevenson v. Lœhr, 57 Ill. 509; Weatherbee v. Bennett, 2 Allen, 428.

No action lies on a covenant against incumbrance on account of a public easement over the land conveyed, the purchaser being bound to take notice thereof. Bailey v. Miltenberger, 31 Pa. St. 41; Tongue v. Spring, 9 Mass. 28.

On the one hand the incumbrance is not a breach of the covenant, on the other it occasions no injury to the defendant.

In addition to the usual covenants, a deed may contain a covenant as to the quantity of ground,--an engagement, for instance, that the tract described contains a given number of acres. Such a covenant has no bearing upon the matter of title. Neither do covenants for title have any reference to the quantity of ground in the tract conveyed. 3 Washburn on Real Prop. (3d ed.) 418; Rawle on Covenants, (3d ed.) 524; Boxley v. Stevens, 31 Mo. 201.

Mr. JUSTICE MULKEY delivered the opinion of the Court:

Whether the Superior Court ruled correctly in sustaining a demurrer to the defendant's second plea, is the first question presented by the record for determination. The allegation in the declaration which was sought to be put in issue by the second plea, is in these words: “Plaintiff avers that afterwards, and when she became of age, to-wit, on the 22d day of August, 1874, at, etc., plaintiff made and delivered to defendant her certain deed, wherein she did ratify the deed first above mentioned.” The plea alleges “that the plaintiff has failed to confirm the sale of said land to the defendant.” Taking the most liberal view of the plea, it is certainly but an argumentative denial of the allegation in the declaration, and is defective for that reason. (5 Rob. Prac. 208.) It also fails to put in issue so much of the allegation to which it is pleaded as an answer, as...