Watson v. White

• Decision Date: 29 October 1894
• Parties: WATSON v. WHITE et al.
• Court: Illinois Supreme Court

152 Ill. 364

38 N.E. 902

WATSON

v.WHITE et al.¹

Supreme Court of Illinois.

Oct. 29, 1894.

Appeal from circuit court, Cook county; O. H. Horton, Judge.

Bill by John P. White against Henry P. Fix and William M. Watson. Complainant having died pending suit, it was revived in the names of his personal representatives, devisees, and surviving partner. Complainants obtained a decree. Defendant Watson appeals. Affirmed.

W. T. Burgess, for appellant.

C. H. Willett and H. H. C. Miller, for appellees.

BAKER, J.

John P. White, since deceased, filed this bill of complaint in the circuit court of Cook county on the 11th day of October, 1889, against Henry P. Fix and William M. Watson. The object of the bill was to enforce the specific performance of a contract in writing made by Fix for the conveyance of 22 acres of land in Cook county to White. The contract bore date the 15th day of February, 1889, and its contents may be summarized thus: Fix agreed to sell, and White to buy, the land at the price of $18,000, of which $500 was then paid in cash as earnest money, and to be applied on the purchase when consummated, and $4,000 within five days after the title had been examined and found good, provided a good and sufficient warranty deed, conveying a good title to the premises to White, should then be ready for delivery. The residue of the purchase money was to be paid in three equal annual payments of $4,500, in one, two, and three years from date, with 6 per cent. interest, payable semiannually, to be secured by notes and mortgage or trust deed on the premises. A complete abstract of title or merchantable copy was to be furnished within a reasonable time, with a continuation thereof brought down to date. In case the title, upon examination, was found materially defective, within 10 days after the abstracts were furnished, then, unless the material defects were cured within 60 days after written notice thereof, the earnest money was to be refunded, and the contract become inoperative. If White failed to perform the contract promptly on his part, at the time and in the manner specified, the earnest money, at the option of Fix, was to be forfeited as liquidated damages, including commissions payable by Fix, and the contract was to become null and void. And the contract contained this clause: ‘Time is of the essence of this contract and of all the conditions thereof.’ On February 22, 1889, an abstract of title, brought down to the 18th of that month, was delivered to Mr. Joseph N. Barker, the attorney of White, for examination. On February 26, 1889, White left for California, and did not return until the 26th of the following April. In the meantime he left with his attorney, Mr. Barker, over $13,000 of securities, to dispose of as far as necessary, and make the payments required by the contract, provided said attorney found the title good; and he notified Morey & Co., the Chicago agents of Fix, who lived in Kentucky, that he had done so; and he also arranged to have the notes and trust deed drawn and sent to him for execution. On March 23, 1889, Mr. Barker delivered to Morey and Fessenden, the agents of Fix, his written opinion in regard to the title. He specified eight objections to the title. In the view we take of the case, it is not essential to go into the details of these objections. They were of four kinds: To the uncertain description of the land in two of the deeds; to the inchoate rights of dower of the wives of certain of the grantors, if they had wives; in respect to the identity of the heirs of a deceased owner of the land; and in respect to a written offer of sale and written acceptance that appeared on the records. Some of the defects were material, and the objections urged to them reasonable. In regard to other objections, it is not so clear that they were well grounded. But, be this as it may, the supposed defects were all curable; and the evidence shows that neither Fix nor his agents claimed that the objections were not honest objections, or that they or any of them were trivial, or that any of the defects pointed out were immaterial. On the contrary, it was virtually admitted that the defects were material defects in the title, and it was promised to remedy them all. Indeed, Fix, in his very answer filed in this case, substantially admitted these things to be as stated. That answer, as it appears in the abstract of appellant, was in part as follows: ‘Admits that Joseph N. Barker examined said abstract and gave his opinion March 22, 1889; sets out a copy of it as part of his answer; admits that said opinion was delivered to H. C. Morey & Co. for defendant March 23, 1889, who at once undertook to cure the defects in the title mentioned therein; * * * avers Morey & Co. proceeded at once to correct said defects,’ etc.

It is to be noted that, by the terms of the contract, Fix was to cure the material defects in the title within 60 days after written notice thereof, and that time was to be of the essence of the contract, and of all the conditions thereof. On March 23, 1889, written notice was given that both the deed of Martha A. Averitt and husband and the deed of Nancy J. Leonard and husband were deficient, in that they did not sufficiently describe the land. These were, most assuredly, material defects in the title. The deeds curing these defects were not recorded until June 27, 1889, and the continuation of the abstract showing them was not made until July 12, 1889. But, what is more important, the Averitt deed was not executed and acknowledged until the 24th day of May, 1889,-a date more than 60 days subsequent to the time that written notice was given of the defect in the original Averitt deed. After the return of John P. White from California, Mr. Barker was discharged as attorney. At that time a number of the objections to the title had not been removed. Fix and appellant contend that on or about the 4th day of June, 1889, all of the defects had been cured to the satisfaction of White. Appellees contend otherwise, and John P. White, in his lifetime, contended otherwise. Just what transpired in the conversations between White and Morey, and in the conversations between White and Fessenden, it is difficult to tell. The testimony is quite conflicting, and it is not necessary in this suit to settle the conflict. For the purpose of curing one of the defects pointed out by Mr. Barker, a quitclaim deed was obtained from one John W. Stewart, and one of the claims urged by White at the hearing before the master was that the wife did not join in the deed and waive her dower; and, in addition to this, it there appeared that Mr. Morey declined to record the deed, because he thought that he, himself, might have some interest in the property. The master, in his report to the court, found that, under the circumstances, the deed was not sufficient to remove the objection. He also found that two certain affidavits did not satisfactorily remove the objections that they were respectively intended to meet. And it would seem from the findings and decree of the circuit court that it concurred in the view taken by the master. On the 10th day of July, 1889, H. C. Morey & Co. mailed to John P. White a letter, which read as follows: ‘Chicago, July 10, 1889. John P. White, Esq., Reaper Block, City-Dear Sir: We are in receipt of a letter from Mr. H. P. Fix in which he states that he is desirous of closing the sale of the acre property that has been pending for some time without further delay. Unless the same is closed before Saturday next (the 13th inst.), we shall cancel contract, and the earnest money shall be forfeited, as per the terms of the contract. Very respectfully, H. C. Morey & Co.’ The letter brought about an interview between White and the agents of Fix; and the results were that the continuance of the abstract by the abstract dated July 12, 1889, was obtained, and no forfeiture of the contract was declared or attempted on July the 13th. Prior to this time, Fix (his wife, Martha, joining with him) had executed a deed conveying the land in controversy to John P. White, and had placed it in the hands of H. C. Morey & Co., to be delivered to him when the defects in the title were cured, and the trust deed and three notes delivered, and the remaining $4,000 paid in cash. A draft of a trust deed, with the date left blank, and three unsigned notes of $4,500 each, also with blank dates, had been handed by H. C. Morey & Co. to White; and on or about July 20, 1889, it was agreed between the parties that the deferred payments, amounting to $13,500, should bear interest from June 3, 1889, and thereupon White filled the blanks in the deed and the notes with the latter date, and signed the notes, and executed and acknowledged the trust deed, but retained both trust deed and notes in his possession until such time as the deed to him should be delivered. Some five days thereafter, on July 25, 1889, White paid $1,500 more of the cash payment to H. C. Morey & Co., and they indorsed on the written contract the following receipt: ‘For the consideration of fifteen hundred dollars ($1,500), the receipt of which is hereby acknowledged, the within contract is extended for thirty (30) days from July 26, 1889, making two thousand dollars total earnest money. July 25, 1889. H. P. Fix, by H. C. Morey & Co., Agts.’ And the contract, with that indorsement, was retained by said agents. During the specified 30 days, and up to September 7, 1889, nothing seems to have been done by either party. White did not deliver the trust deed and notes, and made no further payment, and neither Fix nor his agents did anything further in the way of obviating objections to the title. On the day last mentioned, H. C. Morey & Co. delivered to White a communication addressed to him, bearing that date, and signed, ‘Henry P. Fix, by H. C. Morey & Co., Agents.’ Its contents were, in substance, as follows: ‘Sir: Owing to your failure to perform your...