White v. Bates

• Decision Date: 04 June 1908
• Citation: 84 N.E. 906,234 Ill. 276
• Parties: WHITE v. BATES.
• Court: Illinois Supreme Court

234 Ill. 276

84 N.E. 906

WHITE

v.BATES.

Supreme Court of Illinois.

April 23, 1908.

Rehearing Denied June 4, 1908.

Appeal from Appellate Court, Third District, on Appeal from Circuit Court, McLean County; C. D. Myers, Judge.

Action by Samuel R. White against T. P. Bates. From a judgment of the Appellate Court reversing a judgment for plaintiff, plaintiff appeals. Reversed.Barry & Morrisey, for appellant.

D. D. Donahue and S. P. Robinson, for appellee.

Samuel R. White, appellant here, was plaintiff below, and T. P. Bates, appellee here, was defendant below. The action was assumpsit to recover $1,000 stipulated damages for the breach of a contract for the purchase of a house and lot and a barn and lot in White Place, an addition to the city of Bloomington, Ill. Appellant was the owner of the property, and on July 11, 1906, entered into a written contract with appellee to sell the premises to him for $12,000. The appellant agreed to furnish an abstract of title brought down to date and certified to by a competent abstracter, showing a merchantable title, free and clear of incumbrances. Payment was to be made and the deed delivered on or before July 21, 1906, and by express provision of the contract the time of performance was made of the essence of the agreement. It was stipulated that, if either party should fail or refuse to comply with the provisions of the contract, the party so in default should forfeit and pay to the other party the sum of $1,000, which sum was fixed and agreed upon as liquidated damages. It appears by way of recital in the contract that appellant and his wife occupied the premises as a homestead at the time the contract was executed. Appellant's wife did not join in the contract. Appellee refused to receive a deed executed by appellant and his wife containing a release of homestead, and this suit was brought to recover the stipulated damages. Upon a trial in the circuit court of McLean county without a jury the court found the issues for appellant and rendered a judgment against the appellee for $1,000. From this judgment appellee appealed to the Appellate Court, and that court reversed the judgment of the circuit court without remanding the cause. The case comes to this court on a certificate of importance signed by the judges of the Appellate Court for the Third District.

VICKERS, J. (after stating the facts as above).

First. Appellee's first and most serious contention is that the contract, being for the sale of appellant's homestead, is void for the reason that the contract was not signed by appellant's wife. This is the view that seems to have been entertained by the Appellate Court. By the written contract appellant obligated himself to convey the premises to appellee ‘by a good and sufficient warranty deed containing the usual conditions in deeds, in said White Place, executed by the party of the first part, together with the wife of said first party, in due form of law.’ Undoubtedly, if appellant had tendered a deed signed by himself, alone, he would be in no position to insist upon the acceptance of such deed by appellee or to recover any damages for appellee's failure to perform the contract; but the deed tendered by appellant was signed by his wife and was otherwise in formal compliance with the contract. It is not essential to the validity of a contract for the sale of real estate that the grantor should have the title at the time the contract is made. It is sufficient if, when the specified time arrives, he is able to tender, and does tender, a deed as required by his contract. Monsen v. Stevens, 56 Ill. 335;Lundahl v. Hansen, 147 Ill. 504, 35 N. E. 741. In Plummer v. Rigdon, 78 Ill. 222, 29 Am. Rep. 261, this court held that a tenant in common who made a contract to convey the entire common property was liable in damages to the purchaser for all damages sustained for a breach of the contract to convey the premises. In Gale v. Dean, 20 Ill. 320, the right to recover damages for the breach of a contract to procure a conveyance from a third party is sustained. It does not follow that because appellee could not resort to equity for the specific enforcement of this contract against the wife of appellant the contract is for that reason illegal and void. It may be conceded that appellant's wife was not bound by this contract, and that a bill for specific performance would not lie against her; but specific performance is not the only remedy afforded by the law for the violation of such an agreement. The ordinary action for resulting damages is an appropriate, and in most cases an adequate, remedy. This remedy would have been available to appellee had appellant failed to comply with his contract. In this regard there was mutuality both in the obligation and remedy. If one may make a valid contract to convey land to which he has no title, relying on his ability to acquire the title before the time specified to convey, and the same is a valid contract for the breach of which damages are recoverable, we see no reason why the contract of one who owns the fee is not sustainable on the same ground, where the only condition wanting to his power to convey is that his wife should join in such conveyance. If the contract in question had been made between appellee and a third party who had no title in these premises whatever, and such third party had agreed to obtain the title from appellant and his wife, under the law appellee could maintain an action for the failure upon the part of such third party for all damages that he might sustain for a breach of that contract. Gibson v. Brown, 214 Ill. 330, 73 N. E. 578. If this be good law, how can it be said, with any show of reason, that the contract with the owner is illegal and void?

While we do not think that the question whether appellee would have had a remedy in equity for the specific performanceof this contract determines its validity, still, if that test be applied, the law is settled in this state by the case of Watson v. Doyle, 130 Ill. 415, 22 N. E. 613, that a contract for the sale of the homestead, signed by the owner of the fee, his wife not joining, will be specifically enforced in equity as to the excess over $1,000 in value. The premises involved in this suit were sold for $12,000, and, assuming that to be their value, appellee might have maintained a bill for the specific performance of the contract for a conveyance, which, when made, would have vested him with the fee-simple title to the premises except $1,000 in value. Gray v. Schofield, 175 Ill. 36, 51 N. E. 684. This deed would have made appellee a tenant in common with appellant and entitled him to the rights and remedies growing out of that relation. He might then have maintained a bill for partition under the authority of Anderson v. Smith, 159 Ill. 93, 42 N. E. 306, or, if the premises could not be divided, by the payment of $1,000 appellant could be compelled to accept the same and surrender possession under the authority of Wilson v. Illinois Trust & Savings Bank, 166 Ill. 9, 46 N. E. 740, or the rights of the parties might be settled as to the homestead in the manner pointed out in Hotchkiss v. Brooks, 93 Ill. 386. Appellee has cited decisions outside of this state which we do not deem it necessary to examine or discuss, since we regard the question a settled by the decisions in this state. Our conclusion is that the contract was valid and imposed on each party the duty to carry out its provisions, and that a failure of either party to perform gave a right of action to the injured party for damages, notwithstanding the fact that the premises were, at the date of the contract, a homestead, and the contract was...