Bond v. Ramsey , 89 Ill. 29 ( 1878 )

Mr. Justice Scott

delivered the opinion of the Court:

On the first appeal, the judgment in this case was reversed, principally on the ground, although the executors’ deed might have been defective as purporting to convey their own interest, only, in the property, they having no legal interest in it, but only a naked power to sell, still, the purchaser must have acquired an equitable estate by the deed, which he should have reconveyed, or offered to reconvey, before he could make any defense to the payment of the notes given for the purchase money. That difficulty has been obviated, so far as it is possible to do so, by the execution of deeds of release by the grantees of the purchaser, which have been tendered in court for the benefit of the executors, if they choose to accept them.

Neither deed made by the executors to the purchaser of the property involved in this litigation contains any covenants of warranty or seizin of decedent, nor of their right and power to convey the property; and there is, therefore, a total want of evidence to sustain any defense to the notes on which the action is based because of the breach of any covenant in the particular alleged.

Conceding the first deed made only purported to convey the interest the executors had in the property, the second, made and tendered before this action was brought, did convey all the interest decedent had in the property at the time of her death, which was all the purchaser could exact. There is no reason for any just complaint on that score.

The point most confidently relied on in the defense is, that the purchaser was induced to buy the property by the representations of the executors, made at the time, that the title was perfect in decedent, and.the title being what he in fact bought, that failing, there was a total failure of the consideration of the notes. That proposition certainly can not be maintained, unless there had been such fraud on the part of the executors as would authorize the vendee to rescind the contract in toto, on reconveying whatever estate he may have obtained under the deed. One difficulty in the way of interposing that defense at that time is, that the vendee did not elect to rescind the contract for that or any other reason, and it may well be doubted whether his grantees, since his death, can reconvey the property, so as to work a rescission of the contract. He had transferred the property, and may have deliberately elected to abide the contract, trusting to his ability to defend the title, or he may have known there was no cause for a rescission.

But waiving that view, it is not perceived how the purchaser, if living, could rescind the contract, or, what is equivalent to the same thing, avoid the payment of the notes given for the purchase money of the property conveyed to him. It is conceded the rule of caveat emptor applies to such sales as this, and there is no exception to the rule, except where there has been such fraud practiced by the vendor as will authorize the vendee to recover the money back in case the contract has been executed, or to detain it where the contract is still executory. The general rule on this subject is, in such sales a purchaser who has no covenants that cover defects in the title is absolutely without relief, unless a fraud has been practiced on him in the sale that will vitiate the contract. There is no proof of any actual fraud in this case practiced by either of the executors to induce the making of the sale, and the rule of caveat emptor may be applied in all its strictness. The executor who made the sale may have expressed the belief the title to the property he was about to sell was good; and yet have been guilty of no actual fraud. That opinion may have. been honestly entertained. The executor, however, unequivo- ■ cally denies that he made any representations as to the title' of the property; but whether he did or not, it does not appear the purchaser relied on such representations. That is evident, for two reasons—first, he accepted a deed from the executors, containing no covenants as to the title to the property; and second, in a conversation had, before the notes were signed, with defendant, who is surety on the notes, and who seems to be a very candid witness, deceased told him they were for lots bought at the sale of the estate of Leah P. Webster, at a public sale, and defendant then told him that “at such sales he' must look out for himself about title; that he bought at his own risk as to title,” and his reply was, “ he thought the title was good.” He did not pretend he had purchased the property on the assurances of the executors as to the sufficiency of the title, but what he did say, shows he relied on his own judgment.

This view being conclusive of the whole case, we do not deem it necessary to remark upon other points made on the argument. As no specific objections have been pointed out in the instructions given for defendant, we have not considered the general objection taken. On another trial, the court will, no doubt, make the instructions conform as near as may be to the law as indicated in this opinion.

The judgment will be reversed and the cause remanded.

Judgment reversed.