Bostwick v. Hess , 80 Ill. 138 ( 1875 )

Mr. Justice Sheldon

delivered the opinion of the Court:

We are unable to see that Bostwick or his heirs ever had any interest, legal or equitable, in this land. The agreement of June 5th, 1855, of itself, certainly gave no such interest. It gives merely what it purports on its face, “ the right, option and refusal to purchase, at any time within the period of four months.” The §500 paid was no part of the purchase price of the land. It was given for the right to purchase at any time within four months, at a named purchase price.

But the position is taken, on behalf of appellants, that Bostwick’s entry upon the premises, and making the improvements he did, was an election to' purchase, and changed the option into an agreement for the sale and purchase of the land, binding as such upon both parties.

We can not adopt this construction of the agreement of June 5, 1855.

The proof shows, that what was thus done by Bostwick was without the knowledge or consent of Hess. These acts of Bostwick undoubtedly indicated his intention to take the land and to make the purchase thereof. But something more than signifying his election to take the land on the terms offered was required on the part of Bostwick, in order to make a contract of sale or to give him any interest in the lands. His right was one to purchase upon the terms cmcl conditions named, which were: the payment of $2,600 cash within four months, and the entering into a written contract of purchase, containing certain specific covenants, and the execution of promissory notes for the deferred payments. Bostwick never performed either one of those things, or offered so to do, and so never exercised the right to purchase within the four months which he enjoyed, which he could only do upon the aforenamed terms and conditions. Consequently he acquired no interest in the land.

According to appellants’ construction of the option, Bostwick, after entering upon the land and making the improvements he did, was not at liberty afterward to abandon the land and decline to make the purchase of it, but was absolutely bound, by force of such acts, as a purchaser, and obliged to pay the named purchase price for the land. We must think that, notwithstanding the making of said improvements, it was still optional with Bostwick whether he would, within the four months, make the purchase, pay the $2600, and enter into the written contract of purchase, or decline to do so. And so, according to the assumed construction, by the making of these improvements, without Hess’ knowledge or consent, there arose an actual contract of sale by Hess, without the payment of the $2600 in cash, thus converting an agreement to sell for cash into an actual sale on credit. This would be departing from the duty of courts to enforce agreements as made, and not to make new contracts for the parties. Smith v. Brown, 5 Gilm. 309.

In support of appellants’ construction, an argument is attempted to be drawn from the form of the wording of three certain provisions relating to improvements, to-wit: the ones to “ break the ground and grade two streets through said lands;” to “ decorate and beautify said grounds, and put said grounds, as soon as practicable, in a high state of cultivation;” and “ erect on said premises two dwelling houses,” etc. It is said that these are not named as things to be covenanted to be done, in the contemplated mutual contract of sale and purchase to be drawn up, but that they are contracted to be done in and by the agreement of June 5, 1855, and therefore a right of possession was thereby given to at once enter upon the land and make these particular improvements, and that the making of them formed part of the purchase price of the land. It does appear, that in the enumeration in the agreement of Jtme 5th, of the specific covenants which the contract of sale, if made, should contain, these particular provisions are not literally described as covenants to be therein inserted. But such must have been the intent. It could not have been contemplated that improvements were to be made upon the premises before they were purchased, the $2600 paid, and the “ mutual contract of sale and purchase ” entered into, or at least that before then there was any right of possession given, and that such improvements could be made as a matter of right.

We consider that all the things mentioned as to be done, were things to be contained in the mutual contract of sale and purchase to be drawn up. There is no reason appearing why some of them should be covenants to be inserted in such contract, and others to be present covenants. It does not agree with the nature of the transaction, and we can not think that such was the intention, although the words of these particular provisions named are, in form, words of present agreement.

We are of opinion that there was no right of possession given by the agreement of June 5th; that Bostwick’s entry upon the land was unauthorized; that the improvements he made were entirely voluntary and at his own risk, which would have only-been available to him in case he had effected a purchase of the land on the terms and conditions offered to him, but as he did not do so, his improvements count for naught, as founding any claim of right thereupon; and that Hess’ consent that Bostwick’s estate should have the benefit of the value of the improvements, was but a mere gratuity on the part of Hess.

There can be no doubt that the agreement of June 5th made ° the payment of $2600, within four months, of the essence of any contract for the purchase of the land. There being no pretense that this payment has ever, at any time, been made or offered to be made, the non-compliance with this essential condition would be a sufficient ground for the denial of any claim of right in the land under this agreement. Smith v. Brown, 5 Gilm. 309; Kemp v. Humphreys, 13 Ill. 573; Milnor v. Willard, 34 id. 39; Benedict v. Lynch, 1 Johns. Ch. 369.

Aside from the actual declaration of forfeiture that there was in this case, the sale of the property to Palmer, on the 9th day of October, 1855, would have been sufficient evidence of the forfeiture of the contract, if any declaration of forfeiture on the part of Hess had been necessary. Warren v. Richmond, 53 Ill. 52.

The further ground is taken by appellants’ counsel, that Palmer appeared as a volunteer to carry out the contract of Bostwick, and that Hess accepted performance by him in lieu of performance by Bostwick, and thereupon Palmer became trustee for the heirs of Bostwick, or that at least it was by means of Bostwick’s improvements and possession that Palmer obtained the title from Hess, and so he held it in trust.

There is a lack of any proof that Palmer performed as a volunteer in the place of Bostwick, and that Hess accepted performance from him in lien of performance by Bostwick. The proof shows the transaction to have been a real purchase by Palmer for his own exclusive benefit, in entire independence of Bostwick or his heirs, and that Hess allowed Cornell to retain the excess of the purchase price over the price fixed in the forfeited contract, to pay for the improvements.

As to the so-called Bostwick’s improvements and possession, we find that Bostwick was not the rightful owner of the improvements, and had no right of possession, and there is nothing to show that it was by means of these improvements or Bostwick’s possession that Palmer was enabled to obtain the title from Hess. The view we have taken has rendered it unnecessary to consider the other questions raised, of the effect of the administrator’s sale, and laches.

We have not stopped to examine the proofs as to whether there has been otherwise any unwarrantable intermeddling by Cornell with the property of Bostwick’s estate, or any failure to account in respect thereto, as, if there be any ground of complaint on such score, the remedy is at law and not in equity, and the matter is not properly involved in this bill. Any improper combination by him with any of the other defendants to wrong the estate, as charged in the bill, is unsupported by proof.

We are of opinion there was no error in dismissing the bill, -and the decree will be affirmed.

Decree affirmed.