Cohen v. Segal , 253 Ill. 34 ( 1911 )

Mr. Justice Hand

delivered the opinion of the court:

The first contention of the appellees in support of the judgment sustaining the demurrer to the bill filed herein is, that the bill shows that the appellants did not perform the provisions of the contract to be performed on their part and for that reason they were not entitled to maintain their bill. It is shown by the averments of the bill that the appellees refused to perform and that the appellants were anxious, ready and willing to perform at all times from the date of the contract to the date they filed their bill, and this, we think, constitutes a sufficient excuse for the failure of appellants to malee a tender of an abstract or guaranty policy to appellees. The law does not require a party to a contract to do a useless thing before he can maintain a bill for specific performance. In Lyman v. Gedney, 114 Ill. 388, it was said, on page 410: “To the objection that time was of the essence of the contract and appellee did not tender a sufficient deed within the time, it is enough to say, appellant, by previously refusing to comply with the contract, is estopped from urging that objection. * * * The law did not require appellee to go through with a form which appellant had previously apprised him would be idle and useless.” In Scott v. Beach, 172 Ill. 273, on page 278: “An actual tender by the plaintiff before suit brought is unnecessary when from the acts of the defendant or from the situation of the property it would be wholly nugatory— a mere useless form. If, before.or at the time of completion, the defendant has openly and avowedly refused to perform his part or declared his intention not to perform at all events, then the plaintiff need not malee a tender or demand its performance before bringing suit. It is enough that he is ready and willing and offers to perform in his pleading.” In Osgood v.Skinner, 211 Ill. 229, on page 234: “The law does not require a needless formality, and an actual tender is unnecessary where the seller is ready, able and willing to perform on his part and the tender would be a mere useless form. If, before or at the time of performance, the purchaser has declared his intention not to perform or refuses to do so, the seller need only prove that he was ready and willing to perform on his part.”

It is next contended that by reason of the delay of the appellants in filing their bill they are barred of relief. The contract bore date of February 21, 1910, and a few days thereafter the appellees repudiated their contract. The appellants repeatedly asked them to perform up to September 26, when they tendered a deed and guaranty policy, which tender was refused. The deed and policy were again tendered on November 4, 1910, and on February 10, 1911, the bill was filed. No material change in the value of either of the properties is averred to have occurred and the rights of no third person have intervened, and there was no such delay in seeking relief as would bar a court of equity from specifically enforcing said contract. The general rule is, that a delay which neither evidences an abandonment of the contract nor operates to the prejudice of the other party is not a defense to a bill for specific performance. (36 Cyc. 730.) Here the appellants were from the outset insisting on performance, and the position of the appellees has not been changed by reason of the delay. It is undoubtedly the law that an unreasonable delay in filing a bill to specifically enforce the performance of a contract for the sale of real estate will defeat a recovery, but no case has been cited where a delay of less than one year has been held fatal to a recovery, and the surrounding circumstances of each particular case will be controlling. In Coryell v. Klehm, 157 Ill. 462, this court said, on page 473: “A court of equity applies the doctrine of laches in denial of relief only where, from all the circumstances, to grant the relief to which the complainant would otherwise be entitled will, presumptively, be inequitable and unjust, because of the delay. (Stiger v. Bent, 111 Ill. 328.) And a demurrer for want of equity cannot be sustained unless the court is satisfied that no discovery or proof, properly called for by or founded upon the allegations in the bill, can make the subject matter of the suit a proper case for equitable cognizance.—Bleeker v. Bingham, 3 Paige, 246.”

It is further contended that the appellants committed a fraud upon the appellees by recording the contract without the consent of the appellees and that they did not come into equity with clean hands. The appellees had repudiated their contract, and it was not inequitable that appellants should cause the contract to be recorded to protect their rights as against third parties. The contract did not provide, in terms, it should not be recorded, and the appellants .were not barred of equitable relief by their act in recording the contract.

It is finally urged that the contract was lacking in mutuality and for that reason it should not be specifically enforced. It is true that the contract was not signed by the wife of Cohen and the husband of Krasa, and it could not be specifically enforced against them, (Ebert v. Arends, 190 Ill. 221; Humphrey v. Clement, 44 id. 299; Cowan v. Kane, 211 id. 572;) but it was binding upon Cohen and Krasa and could be specifically enforced against them, and the wife of Cohen and the husband of Krasa made no objection to the contract being carried out but joined in executing the deed which was tendered to the Segals. The inchoate right of dower is not an estate in lands but at most is a mere encumbrance, and there is no more reason why the husband or wife should sign a contract for the sale of lands than that a mortgagee or judgment creditor should sign a contract agreeing to release his lien, if the vendor is prepared with a release of the inchoate right of dower, when he is ready to close the sale according to the terms of the contract, and if, as here, the vendor was the owner of the fee at the time the contract was made and at the appointed time tendered to the vendee his title, free of all encumbrances, including the inchoate right of dower, in accordance with the terms of his contract, the vendee can not decline to perform because the title was encumbered by an inchoate right of dower at the time the contract was executed. (Gibson v. Brown, 214 Ill. 330.) In Mason v. Caldwell, 5 Gilm. 196, it was said, on page 208: “Equity-may .enforce the specific performance of a contract for a sale of land although the vendor has no title at the time of the sale or even at the time of filing the bill, so as he can make a good title at the time of the decree.” In a leading Maryland case (Maryland Const. Co. v. Kuper, 90 Md. 540,) it was said: “While it is true that a vendor must be ready and able to convey a marketable title to a purchaser, it is not necessary that he possess such a title at the time the contract is entered into, provided he shows that he made the contract in good faith and was able to convey it when called upon by his contract to do so. The great weight of authority is that he is only required to be able to convey it by the time the decree is entered. * * * The authorities are therefore ample to establish the doctrine that the mere fact that the vendor’s property is encumbered or his title is defective at the time the contract of sale is made will not prevent his enforcing the contract in equity if he has removed the encumbrance and perfected the title by the time he is required by his contract to convey it; and generally, when he has acted in good faith relief will be granted him if he is ready to furnish a clear title at the time of the decree, provided the delay has not prejudiced the purchaser and time is not of the essence of the contract.” While in this case the contract states that time is the essence of the contract, it was expressly provided therein that the parties were to have sixty days in which to perfect their respective titles, clearly showing that it was the intention of the parties that there might be imperfections to be cured and encumbrances to be removed before the deal was closed, and as the dower rights of the wife and husband of the appellants had been released before the title was tendered to appellees, we have reached the conclusion that the fact that the wife and husband of the appellants did not join in the contract is no defense to this bill. The case of Gage v. Cummings, 209 Ill. 120, is not like the case at bar, as in that case the contract was not executed by the owner of the fee, as was the case here.

We are of the opinion that it was error to sustain the demurrer to appellants’ bill. The judgment of the superior court will therefore be reversed and the cause remanded to that court, with directions to overrule the demurrer.

Reversed and remanded, with directions.