Weberpals v. Jenny

• Decision Date: 14 December 1921
• Docket Number: No. 14090.,14090.
• Parties: WEBERPALS v. JENNY.
• Court: Illinois Supreme Court

300 Ill. 145

133 N.E. 62

WEBERPALS

v.JENNY.

No. 14090.

Supreme Court of Illinois.

Oct. 22, 1921.

Rehearing Denied Dec. 14, 1921.

Suit for specific performance by John Weberpals against Emil Jenny. Decree for defendant, and complainant appeals.

Affirmed.Appeal from Circuit Court, Kane County; Adam C. Cliffe, Judge.

Lynden Evans, of Chicago, and Hugh J. Mair, of Batavia, for appellant.

John M. Raymond and John K. Newhall, both of Aurora, for appellee.

THOMPSON, J.

June 27, 1919, John Weberpals, appellant, agreed to convey March 1, 1920, by warranty deed, a 200-acre farm in Kane county to Emil Jenny, appellee, for $44,000, $2,000 of which was paid in cash, and to furnish an abstract of title thereto showing a merchantable title. Appellant furnished an abstract of title as agreed, but appellee refused to accept a deed to the farm and pay the balance of the purchase price on the ground that the title shown by the abstract was not merchantable. April 5, 1920, appellant filed his bill in the circuit court of Kane county to compel the specific performance of the contract by appellee. Appellee answered the bill denying that the title shown by the abstract was merchantable, and filed his cross-bill asking that appellant be substituted in his stead in a certain lease entered into between appellee and George Pester, and for other relief. Appellant answered the cross-bill, and replications were filed. The cause was heard before the chancellor, who dismissed the original bill for want of equity, and granted the prayer of the cross-bill. This appeal followed.

This being a bill by the vendor for the specific performance of a contract for the sale and conveyance of land, to entitle himself to a decree he must show that the title which he offers to convey is not a doubtful title, and is not one which will expose the vendee to litigation with parties not now before the court, and therefore not bound by its decision. Where there is a reasonable doubt as to the validity of the title, the court will not specifically enforce a contract of this character. There is a full discussion of this subject in Close v. Stuyvesant, 132 Ill. 607, 24 N. E. 868,3 L. R. A. 161, and referenceis made to the opinion filed in that case for fuller exposition of the rule. See, also, Street v. French, 147 Ill. 342, 35 N. E. 814, and Smith v. Hunter, 241 Ill. 514, 89 N. E. 686,132 Am. St. Rep. 231.

Whether appellant owns the land covered by this contract in fee simple depends upon the construction to be given clause 6 of the will of David Sholes, deceased, and the effect thereon of three decrees entered in the circuit court of Kane county. Sholes died testate September 25, 1881, leaving his widow, Mary J. Sholes, two sons, David W. Sholes and Ernest C. Sholes, and a daughter, Esther C. Smith. The sixth clause of his will reads as follows:

‘Sixth-I give and devise unto my daughter, Esther Smith, the wife of William Smith, subject also to such life estate of my said wife in one-third thereof, all the following real estate: [Here follows a long legal description of 419 acres, including the 200 acres in controversy herein.] My said daughter, Esther Smith, to have and to hold the same free from all control or interference of her said husband for and during the full term of her married life, and at her death I give and devise the reversion and fee of said lands to the children of the said Esther Smith, to be divided between them equally and to be theirs absolutely, subject also to the interest of my said wife therein, if she be living; and if at that time any of such children shall have died leaving any child or children living at the time of the death of my said daughter, then I direct the share of such deceased child shall descend to such living child or children equally.’

By this will the four children of Esther C. Smith living at the time of testator's death became the owners in fee of the real estate devised, subject to the life estates of their mother and grandmother, and subject to having their interest divested by the death of one or more of them leaving a child or children, or diminished by the birth of another child or other children to Esther C. Smith. Cheney v. Teese, 108 Ill. 473;Field v. Peeples, 180 Ill. 376, 54 N. E. 304. If the remaindermen, or any one of them, die before the life tenant, leaving a child or children living at the time of the death of the life tenant, then such child or children would take the remainderman's share by way of executory devise, and the interest so taken is not subject to any charges created by the remainderman in his lifetime. Lachenmyer v. Gehlbach, 266 Ill. 11, 107 N. E. 202;McBride v. Clemons, 294 Ill. 251, 128 N. E. 383;Warrington v. Chester, 294 Ill. 524, 128 N. E. 549. The reasons for these conclusions are fully set out in the cases cited, and it is unnecessary to repeat the discussion here.

In 1888 the widow, Mary J. Sholes, filed her bill in the circuit court of Kane county asking that her life interest in one-third of the land devised by clause 6 of the will of David Sholes, deceased, be set off to her. So far as this record shows, the bill did not attempt to set out the interests of the remaindermenand executory devisees, and did not ask that the will be construed. She made Esther C. Smith, her husband, William Smith, and the four minor children of Esther C. Smith-viz. Alice J. Smith, John D. Smith, Stephen S. Smith, and Lydia E. Smith-defendants. The minors were represented by a guardian ad litem. Among the recitals in the decree entered in that cause was the following finding:

‘That by force of the premises and the will aforesaid the complainant now has a life estate in one equal undivided one-third part of said 419 acres, and that said Esther Smith has a life estate in all of said land subject to the life estate of the complainant in the one-third part thereof, and that in [the] fee and reversion of said land is now vested in said infant children of said Esther, subject to said life estate and liable to be divested or changed by their or any of their subsequent deaths or by the birth of another child or other children of said Esther, and that, aside from the parties hereto, there is now no person or persons who have any right, title or interest in and to said lands or any part thereof, in fee, reversion or otherwise.’

The ordering part of the decree made no reference to this recital. It directed that certain lands not now in question be set off to Mary J. Sholes, and did not direct the disposition to be made of the interests of the remaindermen. Mary J. Sholes died in 1889, and her interest was thereby terminated. There being no order or direction in this decree affecting the interests of the remaindermen or of the executory devisees, it has no effect upon the title here involved, and need not be further considered.

In 1908 John D. Smith and his wife executed and delivered to Fred S. Smith (formerly Stephen S. Smith) a quitclaim deed conveying his interest in the premises in question. In 1910 Fred S. Smith filed in the circuit court of Kane county a bill to quiet title, and made defendants thereto, Esther Smith and her husband. William Smith, Lydia E. Oakley (née Smith), John D. Smith, Alice J. Carlisle (née Smith), Bonnie Oakley, daughter of Lydia E. Oakley, Esther Smith, and Elizabeth Smith, daughters of John D. Smith, Marjorie Carlisle, daughter of Alice J. Carlisle, Lois Smith, Florence Smith, and Leo Smith, children of Fred S. Smith, unknown heirs, devisees, legatees and assigns, and any and all unknown owners or parties in interest in and to said property, and certain other parties not necessary to be named here. A guardian ad litem was appointed to represent the minor grandchildren of Esther Smith. The bill averred the death of David Sholes and the above-mentioned proceeding in partition, and set forth clause 6 of the will of David Sholes and averred the death of Mary J. Sholes. It then alleged that the will of David Sholes was ambiguous, and needed construction; that it had been asserted that the remainder of said premises after the life use was suspended pending the death of Esther Smith, and that upon the death of any of the children of Esther Smith prior to her death the share of the pareat would then be vested in the children of such deceased parent, and that by reason of such claim a cloud was created upon the title to the lands. August 28, 1912, a decree was entered, which found, among other things:

‘That by and under the sixth clause of the last will and testament of said David Sholes, deceased, it was his wish and intention to give and devise a life estate to his daughter, Esther Smith, subject, however, to a life estate to his wife, Mary J. Sholes, now deceased, and the vested remainder to all the children of said Esther Smith who might be living at the time of the death of his said wife, Mary J. Sholes, and being Lydia E. Oakley, John D. Smith, Alice J. Carlisle, and Fred S. Smith, and the court hereby construes the phraseology and wording of said sixth clause of said will to read and be regarded as last above set forth.’

In the ordering part of the decree it is declared, among other things:

‘That the title to such property be decreed to be as good, perfect, and indefeasible, both at law and in equity, as it would have been if said clouds and defects had never existed and been made, and that such parties above named be decreed to have a fee simple title in and to such premises free and clear of all defects of each and every kind or nature, and the same is so ordered and decreed.’

In 1913 Fred S. Smith and wife conveyed by warranty deed the premises to Lydia E. Oakley and Alice J. Carlisle. In 1914 Esther C. Smith and her husband, William M. Smith, Alice J. Carlisle and her husband, Harry N. Carlisle, Stephen S. (Fred S.) Smith and his wife, Mamie Smith, and Lydia E. Oakley and her husband, C. B. Oakley, filed their bill in the circuit court of Kane county to...