Zempel v. Hughes

• Decision Date: 08 October 1908
• Citation: 85 N.E. 641,235 Ill. 424
• Parties: ZEMPEL v. HUGHES et al.
• Court: Illinois Supreme Court

235 Ill. 424

85 N.E. 641

ZEMPEL

v.HUGHES et al.

Supreme Court of Illinois.

June 18, 1908.

Rehearing Denied Oct. 8, 1908.

Appeal from Circuit Court, Fulton County; G. W. Thompson, Judge.

Bill for specific performance by Robert Zempel against Julius E. Hughes and others, From a decree for defendants, plaintiff appeals. Reversed and remanded.

This is a bill filed March 1, 1905, in the circuit court of Fulton county, by appellant, Robert Zempel, against appellee Julius E. Hughes, for the specific performance of a contract, the substantial portions of which, so far as affects this proceeding, are as follows:

‘Received of Robert Zempel the sum of $500 as part payment towards the purchase of the following described real estate (describing the two hundred-acre farm), which is hereby bargained and sold to the said Robert Zempel for the sum of $18,000, the balance to be paid as follows, to-wit: $7500 more to be paid on or before February 28, 1905, and in addition thereto the said Robert Zempel agrees to convey to Julius E. Hughes, for the consideration of $10,000, by good and sufficient warranty deed, the following described real estate (describing two Chicago residence properties), said real estate being the same shown said Hughes by said Zempel, at which date the said Julius E. Hughes agrees to deliver to the said Robert Zempel a good and sufficient warranty deed. * * * Should the title to the said two hundred acres * * * not prove good, then this $500 to be refunded; but should the said Robert Zempel fail to perform his contract on his part promptly at the time and in the manner above specified, then the above $500 shall be forfeited as liquidated damages and the above contract shall become null and void. * * * In the event that the title to the said two hundred acres, as aforesaid, should not prove good and could not be made merchantable title, then the said Hughes is to refund the said $500 * * * and this contract to be and become null and void. * * * Should the title to the real estate in Cook county, Illinois, not be found good and cannot be made a merchantable title, then the said $500 to return to said Zempel and this contract to be and become null and void. * * *

‘Witness the hands and seals of the parties aforesaid this twelfth day of December, A. D. 1904.

Julius E. Hughes. [Seal.]

‘Robert Zempel. [Seal.]’

Emily A. Boyer was also made a party, on the ground that Hughes had conveyed to her, as security for a loan of $7,000, 80 acres of the land in question and taken from her a bond for reconveyance. To this bill Hughes filed a demurrer, and upon leave the bill was amended, alleging, among other things, that the contract was fair and reasonable and free from fraud, and that on December 27, 1904, Hughes had delivered up possession to Zempel and taken back a lease of the farm; also, that G. W. Hughes had an interest in the premises, and making him a party defendant. A demurrer having been sustained to the amended bill, a second amended bill was filed October 25, 1905, setting forth, among other new matters, that the interest of said G. W. Hughes was derived from a warranty deed not of record at the commencement of the suit, covering the 120 acres not deeded to Mrs. Boyer, which deed was given as security for a loan of $6,000 and was in the nature of a mortgage. A supplemental bill was filed January 24, 1906, setting forth, among other things, the filing of the G. W. Hughes deed, and that the $2,200 mortgage hereafter spoken of had been satisfied since the filing of the original bill. After various other pleadings had been filed, the case came to a hearing on the answers of the respective defendants, and the chancellor dismissed the bill for want of equity. An appeal was thereupon taken to this court. peculiar circumstances may refuse to enforce a forfeiture.

Appeal from Circuit Court, Fulton County; G. W. Thompson, Judge.

Bill for specific performance by Robert Zempel against Julius E. Hughes and others, From a decree for defendants, plaintiff appeals. Reversed and remanded.Harry M. Waggoner and M. P. Rice, for appellant.

Hardin W. Masters and Thomas D. Masters, for appellees.

This is a bill filed March 1, 1905, in the circuit court of Fulton county, by appellant, Robert Zempel, against appellee Julius E. Hughes, for the specific performance of a contract, the substantial portions of which, so far as affects this proceeding, are as follows:

‘Received of Robert Zempel the sum of $500 as part payment towards the purchase of the following described real estate (describing the two hundred-acre farm), which is hereby bargained and sold to the said Robert Zempel for the sum of $18,000, the balance to be paid as follows, to-wit: $7500 more to be paid on or before February 28, 1905, and in addition thereto the said Robert Zempel agrees to convey to Julius E. Hughes, for the consideration of $10,000, by good and sufficient warranty deed, the following described real estate (describing two Chicago residence properties), said real estate being the same shown said Hughes by said Zempel, at which date the said Julius E. Hughes agrees to deliver to the said Robert Zempel a good and sufficient warranty deed. * * * Should the title to the said two hundred acres * * * not prove good, then this $500 to be refunded; but should the said Robert Zempel fail to perform his contract on his part promptly at the time and in the manner above specified, then the above $500 shall be forfeited as liquidated damages and the above contract shall become null and void. * * * In the event that the title to the said two hundred acres, as aforesaid, should not prove good and could not be made merchantable title, then the said Hughes is to refund the said $500 * * * and this contract to be and become null and void. * * * Should the title to the real estate in Cook county, Illinois, not be found good and cannot be made a merchantable title, then the said $500 to return to said Zempel and this contract to be and become null and void. * * *

‘Witness the hands and seals of the parties aforesaid this twelfth day of December, A. D. 1904.

Julius E. Hughes. [Seal.]

‘Robert Zempel. [Seal.]’

Emily A. Boyer was also made a party, on the ground that Hughes had conveyed to her, as security for a loan of $7,000, 80 acres of the land in question and taken from her a bond for reconveyance. To this bill Hughes filed a demurrer, and upon leave the bill was amended, alleging, among other things, that the contract was fair and reasonable and free from fraud, and that on December 27, 1904, Hughes had delivered up possession to Zempel and taken back a lease of the farm; also, that G. W. Hughes had an interest in the premises, and making him a party defendant. A demurrer having been sustained to the amended bill, a second amended bill was filed October 25, 1905, setting forth, among other new matters, that the interest of said G. W. Hughes was derived from a warranty deed not of record at the commencement of the suit, covering the 120 acres not deeded to Mrs. Boyer, which deed was given as security for a loan of $6,000 and was in the nature of a mortgage. A supplemental bill was filed January 24, 1906, setting forth, among other things, the filing of the G. W. Hughes deed, and that the $2,200 mortgage hereafter spoken of had been satisfied since the filing of the original bill. After various other pleadings had been filed, the case came to a hearing on the answers of the respective defendants, and the chancellor dismissed the bill for want of equity. An appeal was thereupon taken to this court.

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

In March, 1903, appellee Julius E. Hughes, in accordance with a contract previously made, consummated a trade and moved onto the farm in question, which he had purchased for $14,000. At that time he borrowed of Emily A. Boyer $7,000, to be used as a part of the purchase money, and gave her a deed as set forth in the foregoing statement. At the same time he borrowed of his father, George W. Hughes, $6,000, which he used as a part of the purchase money for the the farm, and also deeded to his father part of the land as set forth in the statement. Without question, from the record before us, the deeds given to Mrs. Boyer and George W. Hughes must be held to be mortgages given to secure said loans. The deed to Mrs. Boyer was recorded March 25, 1903. The deed to George W. Hughes was recorded March 15, 1905, after these court proceedings had been instituted. In September, 1904, appellee Julius E. Hughes placed this farm for sale or trade in the hands of John W. Dickson, a real estate dealer living at Lewistown, the county seat of Fulton county. Dickson testifies that the price of the farm was to be $16,000 in cash or $18,000 in trade. Hughes insists that his only price was $18,000. Appellant at that time was engaged in the lumber business in Lewistown, where he had removed from Chicago some years before. Dickson talked with him about buying the Hughes farm. Dickson and Zempel in the fall of 1904 visited the farm, and examined it in company with Hughes. Shortly after this, at appellant's request, Hughes went to Chicago and looked at two residences owned by Zempel, which there was talk of turning in as a part of the trade, if one was made. Appellant's price on the two properties was $10,000. There is nothing to indicate that Hughes did not have every opportunity of seeing both places. After their return, Hughes met Dickson, and shortly thereafter made an offer to Zempel, which he took under consideration. A day or two later a trade was consummated in accordance with the terms of the contract set out in the foregoing statement. This contract was drawn by W. M. Fike in his abstract office in Lewistown, in the presence of appellant, appellee Julius E. Hughes, and Dickson. During the time they were in the office there was a talk between the parties of a $2,200 mortgage on one of Zempel's Chicago houses. Dickson and Zempel say...