Brix v. Ott , 101 Ill. 70 ( 1881 )

Mr. Justice Walker

delivered the opinion of the Court:

Plaintiff in error was the owner of a tract of land in Henry county, near the city of Geneseo, on which there are several springs. It- was incumbered by a trust deed to secure $3500, and for the payment of which the land was advertised to he sold on the 17th day of February, 1879. On the 15th- day of that month the parties .to this suit entered into this agreement :

“Geheseo, Ill., Fel. 15, '79.

“This is to certify to an agreement between D. Brix and myself, that he is to bid off the land now advertised by myself, and sold on Monday next, and give up same on following terms, namely: To have two acres at spring, each side of spring, one to make a square; and also to have use of surplus water flowing from springs west of road; and two acres south of spring on hill, to be used for waterworks, and to be in my use until he needs it.

A. H. Ott,

D. Brix, M. D.”

The sale occurred as advertised, but plaintiff in error failed to bid off the property, although present at the sale. Thereupon defendant in error bid, and became the purchaser for the amount of the debt and interest. Steel, the trustee, executed to him a deed, and he took possession and still retains it.

Defendant in error made a quitclaim deed for th.e use of two acres, embracing a spring, on the west line of the quarter, and two other acres, to be used for the erection of waterworks to supply Geneseo with water. He tendered this deed, but it was rejected. Plaintiff in error claimed a deed conveying the fee, and not a mere easement or use of the property described in the deed, and that the property had been incumbered by mortgage by defendant in error after the sale, and the deed was not therefore a. compliance with the contract. Plaintiff in error thereupon filed his bill for' a specific performance of the contract. He afterwards amended his bill, asking for a rescission and for an. assessment of damages in case the contract could not be decreed specifically performed. A hearing was had, and the circuit court dismissed the bill, and complainant prosecutes error to reverse the decree of the circuit court.

The question upon which the decision of this ease turns, is whether the'contract, by its terms, is sufficiently specific and certain to require a decree directing it to be specifically performed. The well and generally recognized rule is, that to be specifically enforced a contract must be complete, specific, certain, as well as fair and honest,—not the result of mistake of intention,—and must have been fully performed, or an ability and a readiness and an offer to perform his part, by the party seeking its enforcement. See Fitzpatrick v. Beatty, 1 Gilm. 454, Gosse v. Jones, 73 Ill. 508, and Bowman v. Cunningham, 78 id. 48. A part performance, at least, with a readiness to perform the remainder, on the part of the party complaining, is regarded as indispensable to authorize the enforcement of the contract.

This contract specifies no particular tract of land. But it is said that it refers to land advertised by defendant in error, and to be sold on the Monday following. But it may be replied there is no pretence that defendant in error had advertised any land to be sold on that or any other day. This land was then advertised by Steel to be sold on the next Monday, to pay a debt plaintiff in error owed to one Young, and in which, so far as the evidence shows, defendant in error did not have the slightest interest. Then how can it be said that this agreement, either directly or remotely, refers to that advertisement, or the land in controversy ?

But even if it could be.- conceded that the land might be ascertained by a reference to Steel’s advertisement, which we do not now decide, still the body of the agreement is altogether vague and indefinite as to the land to be reserved to or held by plaintiff in error. There is no general description of the land in which the specific lands claimed are situated. But if that could be found, then where will we commence to locate the two acres at the spring, or the two acres south of the spring on the hill ? Surely no surveyor, whatever his skill, could determine from the agreement. There are several springs, and who can possibly know which spring is referred to, by the agreement? There is nothing from which it can be ascertained. But if the spring referred to could be certainly known, where are we to start to locate the two acres ? The agreement says it is to be at and each side of the spring, and one to make a square. What to make a square ? If it is one side, which side, and what is the side of the spring? And what is to be the size and shape of the other side? This is, utterly indefinite as to the place, the form, or the beginning or ending of the lines bounding the tract to be embraced in the two acres.

As to the other two acres, its want of description is as apparent as the other. If we take the spring on the line and road on the east, then no part, or but a few inches, perhaps, or a few feet at most, of the two acres on the hill can lie south of that spring. Practically, it would all lie west of that spring. Then, if we take either of the other four springs lying west of the one on the east line, south of which shall the two acres be located ? Bu't if the hill extends but a short distance west of the second spring from the line, south of which of these two shall it be located ? And if located, on what part of the hill, and what shall be its shape ? None of these questions are answered by the contract, and all are presumed to know that a contract can not be partly' Written and partly verbal.

We are referred to the case of Fowler v. Redican, 52 Ill. 405, as an authority requiring the admission of extrinsic evidence to locate the two tracts. That ease differs widely from this in its essential facts. There, possession was taken, and valuable improvements made, under a written memorandum, which, if not sufficiently specific, and had been rejected, outside of the written memorandum there was a clear, specific and unambiguous verbal contract, under which the purchaser had entered into possession, made improvements, and paid a part of the purchase money. This was sufficient, independent of the written memorandum, and had it been wholly rejected, to authorize a decree for a specific performance. In that case the memorandum referred to verbal representations, which it was held might be proven because they were referred to by the memorandum. Moreover, that ease carries the doc-tine of such explanation to the extreme verge of the rule, and wre do not feel inclined to extend it to other cases not similar in character. This case is widely dissimilar, and the doctrine of that case is not therefore applicable to this.

It is urged that inasmuch as defendant in error tendered a quitclaim deed, he thereby admitted or specified the places where and the form in which the locations were to be made. A tender of any kind is only an admission to its extent, and no further. When made, it only admits the fact of the tender, with all of the conditions, limitations and terms at the time imposed. Nothing further can be inferred from it. It then follows that the tender of this deed only bound defendant in error to its terms and conditions.

We perceive no error in this record, and the decree of the court below must be affirmed.

Decree affirmed.