Yazel v. Palmer ( 1878 )

Mr. Chief Justice Scholfield

delivered the opinion of the Court:

The present case was before us at the January term, 1876, and is reported as Yazel v. Palmer, 81 Ill. 82, to which we refer for a full statement of the case.

The bond upon which suit is brought is subject to this condition: “Whereas John Yazel, and Elizabeth, his wife, have this day deeded to E. H. Palmer lots 3, 4, 5, 6, 7 and 8, in block 2, of Yazel's addition to Clinton: Yow, if said Palmer effects a sale of said premises within a reasonable time, then said Palmer is to pay to said Mrs. Elizabeth Yazel the proceeds of said sale, save a reasonable fee for his trouble and expenses; then this obligation to be void,—otherwise, then this bond to be in full force and virtue.”

Evidence was given on behalf of Palmer, tending to show that when he sold the property, he conveyed it by deeds with covenants of warranty; that, subsequently, judgment liens against Yazel, pending at the date of the conveyance to him, were enforced by sale of a portion of the property, and title perfected thereto, and that he, to make good his covenants, bought this title and had it conveyed to his vendee, in doing which he was compelled to and did expend $562. The evidence shows that this sum did not exceed the value of the property, at the time the payment was made; but Palmer entirely fails to prove either that he made covenants in respect of the title, binding himself personally, at the request of Mrs. Yazel, or that he bought in the title that had failed, at her request. In both respects, his acts appear to have been purely voluntary. In the judgment below he is allowed credit for the payment thus made.

The most favorable view, for Palmer, that we can take of the case, as respects this item, is that Mrs. Yazel should be allowed to recover only what the property brought, less the relative value of the property to which the title has failed, as compared with that to which the title is good, in proportion to the price paid Palmer for the whole. Had she made covenants of title herself, and her grantee brought an action thereon, this must have been the limit of his recovery, (Major v. Dunnavant, 25 Ill. 262,) and no reason is perceived why a different measure should be applied against her here. Palmer Avas a mere trustee Avith power of gale, and nothing more. He AA'as not authorized to make covenants binding Mrs. Yazel, much less to engage in litigation or buy in outstanding titles or extinguish liens, under the assumption that she would be benefited thereby, and money thus expended was the result of his own volition, and he, and not she, should, therefore, bear its loss. It is, however, not just that Mrs. Yazel should receive the proceeds of a sale of a title other and different than that her husband had when the bond was executed, and, to the extent the value of her husband’s title was impaired, or, what is equivalent thereto, the proceeds derived from its sale were diminished by the subsequent enforcement of outstanding liens against the property, she should bear the loss. Her husband .could not invest her with an interest in the property paramount to those liens, and to the extent they affected the property she could make no claim for its value. We have discovered no evidence showing how much was the value of the property sold to satisfy the liens, as compared with that to which the title is good, in proportion to the price paid Palmer for the whole. In the sale by Palmer, the property may have been sold at a greater or less figure than its actual value, and there may have been a material change in the value of all the property between the time of his sale and the subsequent purchase by him of the title which failed; so, likewise, we can not know that the valuation of that property by itself would bear the pro rata value it did when treated as a part of an entire property.

We deem it unnecessary to notice other points discussed in the briefs before us. The main question not noticed is, whether payments made by Palmer to the husband of appellant are good, as against her. We have discovered no error of law in the ruling in this respect, and we deem it unadvisable to prejudice another hearing by a discussion of the evidence bearing on the point.

Because the ruling below, as to the measure of damages, was not in conformity with what we have here said, the judgment is reversed and the cause remanded.

Judgment reversed.

Subsequently, upon petition for a rehearing, the following additional opinion was filed:

Per Curam : A petition for rehearing has been presented in this cause, based on the ground that the record does furnish evidence to sustain the rule of damage which we have indicated in the opinion filed should have been applied. This evidence, it is conceded, is not set out in the abstracts filed, nor in the printed argument filed by appellee; but appellee claims, as a sufficient excuse for this omission, that the point upon which the case is reversed was not made in appellant’s original argument. This is a misapprehension. Objection was taken by appellant to the instructions which we hold objectionable, and to the sufficiency of the evidence to sustain the several propositions essential to the maintaining of the judgment. That the precise language of the opinion, or, indeed, form of argument therein adopted, does not appear in appellant’s argument, is unimportant. It is sufficient that, in the opinion of the court, the objection of appellant fairly presented the questions decided.

If the abstracts did not present the evidence satisfactorily, it was appellee’s privilege and duty to file a corrected abstract.

But waiving all question on the evidence, the instructions objected to by appellant did not present the law as we have held in the opinion filed it should have been given to the jury. The time when appellee was compelled to refund money to the purchaser to make good his covenants, is not the time with reference to which the relative value of the property should be ascertained, but the time when appellee sold the property.

We see no cause to grant a rehearing, and it will be denied.

Rehearing denied.