Mead v. Altgeld , 1889 Ill. App. LEXIS 403 ( 1889 )

Moeaw, J.

This action was brought by appellee to recover from appellants money which he had deposited with them for which they delivered to him a receipt as follows:

“ Chicago, March 29, 1886.

“Received from John P. Altgeld, one thousand dollars, first payment on contract for purchase of lots 4, 5, 6 and 7 in the Superior Court partition of the S. £ of B. 23 in C. T. Sub. of the W. W. -J, N. E. J, Sec. 17, 39, 14. It is understood and agreed that in case the title proves to be not good, this one thousand dollars will be refunded by us to Mr. Altgeld.

“ $1,000.. Mead & Coe, Agents,

“Per Wentworth.”

At the same time this paper was executed a contract for the purchase of these lots was made between appellee and one Julia M. Ray for $30,000. Appellants were the agents of Mrs. Ray, and delivered to appellee an abstract of title of the premises, which was examined by appellee’s attorney, who pronounced the title shown thereby to said lots not good in said Julia M. Ray. Appellee returned the abstract to appellants and showed them the opinion of his attorney, Gen. G. W. Smith, thereon, and declined to take the land unless he was given a merchantable title thereto. Appellee demanded from appellants the money mentioned in the said receipt, and though no steps were taken to perfect the title by either appellants or their principal, they refused to return the money to appellee. Thereupon this action was brought and was tried before the judge without a jury, and a finding and judgment rendered in favor of apjaellee.

Appellants’ first contention is that the contract between Julia M. Bay and appellee and the receipt given by appellants are to be construed together; that appellee knew appellants were acting as agents for Mrs. Bay in receiving and receipting for the money, and that it was received, in fact, under the contract between appellee and said Mrs. Bay, and that appellants are not liable personally on said receipt. It is for the court to construe the receipt, which is in writing, and it is very clear that in form the appellants personally undertake to refund the 81,000, in case the title should prove to be not good. Such a personal undertaking is not inconsistent with the character of agent, and it is well settled that where an agent expressly charges himself personally, he will be so held whether he is known to be an agent or not. Mechera on Agency, See. 558; Story on Agency, Sec. 269.

Whether appellants would be liable if they merely received the money for their principal and gave no personal promise to pay it back, need not be here considered. Appellants are liable on the express terms of the receipt executed by them personally to appellee. Appellants contend that it is not shown by the evidence that the title was not good.

Secondary evidence of the contents of the abstract furnished by appellants to appellee was introduced (a proper foundation having been laid for the introduction thereof) from which if appeared that block 23, in which the lots purchased by the appellee were situated, was conveyed November 18, 1851, by deed from the canal trustees to S. Lockwood Brown and James Matterson.

In 1854 Brown brought a partition suit against the canal trustees and the heirs of Joseph Matterson. The bill alleged that the canal deed should have run to Joseph Matterson as the real purchaser. A decree was entered in this partition suit which declared that the deed was made by mistake to James Matterson, that Joseph Matterson was the real pur-' chaser of the property, and directing that the canal trustees should convey to the heirs of Joseph Matterson one-half of the block, and divided the block by assigning the north one-half to Brown, and the south half to the heirs of Joseph Matterson. The abstract further showed that in 1866 the canal trustees made a deed whereby, after reciting that in 1851 they had conveyed to Brown and James Matterson, they, in pursuance to the decree of the court in the partition suit, convey the north half of said block 23 to Brown, and the south half to the heirs of Joseph Matterson.

Afterward there was a partition suit between the heirs of Joseph Matterson, by which the lots in question were assigned to Julia Matterson, now Mrs. Rav. The objection to the title arises from the fact that neither James Matterson, if there was such a person, nor his unknown heirs, were made parties to the partition suit, and that no conveyance was made from S. Lockwood Brown to the heirs of Joseph Matterson. If in fact, Joseph Matterson paid for one-half the property, his heirs should be entitled to have a deed made to them by Brown; for if James Matterson was not in existence, Brown took the entire legal title by the deed from the canal trustees. Davy v. Kemp, Bridgman R. 384; Overton v. Lacy, 6 T. B. Monroe, 13; Freeman on Co-tenancy and Part. Sec. 28. If there was such a person as James Matterson, the legal title to one-half the block vested in him, and the decree in the partition suit did not affect that title, as neither he nor his heirs were made parties.

We are of opinion that the title was not good. The rule of law is that “ a purchaser who bargained for a good title shall not be compelled to take one which is subject to suspicion. This does not mean that the title shall be good beyond a possible peradventure, for then he might never be satisfied; but it must be free from reasonable doubt. It must be a title to -which no reasonable man would object; such a one as a prudent man would not hesitate to invest his own money upon, at a full market price; such a one as will bring in the market as high a price with as without the objection.” Brown v. Cannon, 5 Gilm. 174; Parker v. Porter, 11 Ill. App. 602; Cravenor v. Hale, 27 Ill. App. 275, and Parmlee v. Head, 33 Ill. App. 134. Ho prudent man would be willing to take the title offered and pay full price for it. It was for Mrs. Bay or her agents to clear up the doubt and remove the suspicion, and they have taken no steps to do so.

Appellants’ last contention is that the court erred in admitting the opinions of lawyers as experts, to show that the title as shown by the abstract was not a marketable one.

This position of appellants is correct. The sufficiency of the title was a question of law, and.it was not competent to prove what were the opinions of lawyers or conveyancers. Parmlee v. Head, 33 Ill. App. 134; Murray v. Ellis, 112 Pa. St. 485; Canfield v. Gilbert, 4 Esp. 221; Alpass v. Watkins, 8 T. R. 516.

But while this was error, it was error that did not injure appellants. If the facts relating to the title had not been stated to the court, and the judge had nothing to rely on but the opinions of said lawyers, the judgment would have been reversed for the admission of such evidence. But the facts appear in the record. The contents of the abstract showing the title was proved to the court, and the judgment of law-rendered on said facts is correct, as we have already seen. It is only injurious error which will reverse.

The objections of appellants can not be sustained, and the judgment of the Circuit Court must therefore be affirmed.

Judgment affirmed.