Willets v. Burgess

• Citation: 34 Ill. 494,1864 WL 3011
• Parties: WELLS WILLETSv.HENRY BURGESS.
• Decision Date: 30 April 1864
• Court: Illinois Supreme Court

34 Ill. 494

1864 WL 3011 (Ill.)

WELLS WILLETS

v.HENRY BURGESS.

Supreme Court of Illinois.

April Term, 1864.

APPEAL from Circuit Court of Mercer County.

Assumpsit by appellee against appellant upon two promissory notes, resulting in a judgment in the court below for the plaintiff for $830.74.

The case is sufficiently stated in the opinion.

Glover, Cook & Campbell, for appellants.

J. R. and I. N. Bassett, for appellee.

WALKER, C. J.

Did the court below err in sustaining the demurrer to appellant's fourth plea? To that plea there were five several replications, to which a demurrer was overruled. The plea avers, that the notes sued upon were given for the purchase of lands described in the plea, and that the sole consideration for their execution was a deed of conveyance of the land, and the covenants it contained. That the land was conveyed for the sum of $4,000, for a part of which these notes were given. That the deed contained a covenant, that the grantor was lawfully seized in fee simple, and that the premises were free from incumbrance. That when the deed was made, appellee was not well seized, and the lands were not free from incumbrance, but were and still remain incumbered by a certain mortgage made by Mathews, appellee's grantor, to Clarinda Willets, to secure the payment of $1,123.98, one-half due in two years from the fourth of August, 1858, and the remainder in three years from that date, the entire sum drawing ten per cent. interest. That the mortgage contained a provision, that if Mathews should fail to pay the notes, according to their tenor and effect, the title to the premises should be vested and become absolute in and belong to the mortgagee.

That appellee derived all of his right and title to the property from Mathews, by deed made subsequent to the mortgage. That the deed to Clarinda Willets was recorded before the deed of Mathews to appellee. That the notes secured by the mortgage, or either of them, have not been paid, and the title to the premises has become absolute in Clarinda Willets, whereby the consideration of the notes has failed.

The averment in the plea is, that the covenants in the deed formed the consideration of the notes sued upon in this action. It is specifically averred that the consideration was the deed and covenants it contained. It is obvious that covenants for title are a consideration to support a promissory note. The deed and covenants were received and relied upon by appellant when he executed the notes. The contract was fully executed by appellee when he made the conveyance. The plea does not aver that the purchase of title to the land was the consideration of the notes, but it was the deed and covenants. If the covenants had been for the conveyance of the title, and at the maturity of the notes appellant had offered to perform his part of the contract, and appellee had been unable to convey title, then appellant might have rescinded the contract, avoided the payment of the notes and recovered any portion of the purchase money already paid. The case of Foster v. Jared, 12 Ill., 451, sustains this doctrine.

In the case at bar there is no pretense that there has been a rescission of the contract; no conveyance of the land has been made or even offered by appellant. He has ample remedy on the covenants, if there has been a breach, for the recovery of all damages he may have sustained. Or if he had paid the mortgage, or any portion of it, he might have set off the damages thus sustained against the notes in this action. The giving of the covenant and the notes form but one transaction, and damages arising from a breach of the covenant, grow out of the contract and may be set...