Warner v. Scott

• Decision Date: 31 January 1872
• Citation: 63 Ill. 368,1872 WL 8196
• Parties: SAMUEL L. WARNERv.JAMES L. SCOTT et al.
• Court: Illinois Supreme Court

63 Ill. 368

1872 WL 8196 (Ill.)

SAMUEL L. WARNER

v.JAMES L. SCOTT et al.

Supreme Court of Illinois.

January Term, 1872.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Coles county; the Hon. JAMES STEELE, Judge, presiding.

Messrs. HENRY & READ, for the plaintiff in error.

Messrs. FICKLIN & PETERSON, for the defendants in error.

Mr. JUSTICE BREESE delivered the opinion of the Court:

This was a bill in chancery in the Coles circuit court, to enforce a vendor's lien on certain tracts of land of 40 acres each, therein described.

The cause was heard on bill, answer, replication and proofs, and on the hearing the bill was dismissed, and a decree against complainant for the costs.

To reverse this decree he brings the record here by writ of error, and insists the decree was erroneous and should have been rendered for complainant. It appears that one McAcheron had purchased of the Illinois Central Railroad Company, taking their separate bond for title, six forties, as they are called, lying in a body in the form of a parallelogram, the east and west line being 160 rods long, and the north and south line 240 rods, making in all 240 acres, all in the same section, township and range. The two north forties would be properly designated as the south half of the northeast quarter, and the other four would be the southeast quarter of the section.

McAcheron had agreed to pay the company fourteen dollars and eighty cents per acre for each tract. He sold the contract to the plaintiff in error on the 7th of December, 1864, after having been in possession a few months, making some improvements thereon. Plaintiff in error took possession and held until May 1, 1865. On the 3d of March preceding he contracted with the agent of George W. Scott, now deceased, to sell three forties to him for forty dollars per acre, including the amount due the railroad company, making the amount to be paid plaintiff twenty-five dollars and twenty cents per acre, or about four thousand dollars for the four south forties. This amount, it is admitted by complainant in his bill, was duly paid by Scott in his lifetime, and the railroad bonds were handed over to him.

The purchase price of the two north forties would be two thousand and sixteen dollars, but as there were thirty-two dollars unpaid on the south forties, this amount was added, so that two thousand and forty-eight dollars was the amount to be paid for the north forties, in two equal payments, one at twelve and the other at eighteen months, with six per cent interest, and as security complainant was to retain the railroad contract or bond for those forties in lieu of a mortgage on them. W. W. Gill, the agent of complainant, was to prepare these notes by the next morning, to be taken by respondents, James L. Scott and James Boalman, the agents of George W. Scott, to the latter for his signature, he then being confined by sickness, and when signed to be returned to Gill.

The possession of all the land was delivered to Scott except the northeast forty, and on the northwest forty complainant had a crop growing, the possession of which he was to retain until it could be harvested.

In delivering the railroad bonds or contracts to Gill for the north forties, as security for their payment, there was delivered to him, by mistake, the bonds for the two middle forties, which would be the north half of the southeast quarter of the section, for which Scott had fully paid, and the mistake was not discovered until after his death, when his administrators, the respondents, went to make the payments to the railroad company on the south forties, when it was discovered that they had the bonds for the two north forties but not for the middle forties, for which they had paid complainant in full.

Gill, agent of compla...