Griswold v. Brock , 1890 Ill. App. LEXIS 685 ( 1892 )

Phillips, J.

The appellees filed their bill in chancery averring that Isaac M. Piggott on the 16th day of January, A. B. 1865, was the owner of certain lands in the bill described, which, with other lands owned by him, he on'that day contracted to sell to W. B. Griswold and John B. Bowman. By that contract in writing Piggott sold all of lots 116 and 117 of the common fields of Oahokia in St. Glair County to him belonging and situated southwestwardly from the town of Illinoistown, .and what- is known as Piggott’s addition to same, excepting therefrom not exceeding three acres adjoining the said addition, and also two acres bargained and sold to one John Atton. A part of this land was to be paid for at the rate of $75 per acre, and a part to be paid for at $50 per acre. By the terms of the agreement the land was to be paid for in cash on delivery of deed. The quantity of the ground thereby bargained and sold to be ascertained by the said Piggott at the cost of all the parties. The contract contains the further clause: “What part of the said land is held by Piggott only under tax title is to be included on the conveyance of the balance at a nominal price.” By a further agreement between the parties to that contract, made on the 23d day of May, 1866, Piggott was to assign certain leases on the payment of the purchase money, and a certain part of survey 116 was excepted from the contract. On the same day the last mentioned agreement was made, a further agreement was made by which it appears that on that day a payment was made to Piggott of $7,025, and at the request of Bowman a deed, conveying to W. D. Griswold 113.10 acres of land of survey 116, was made and delivered by Piggott. "That agreement contains this further clause: “The delivery of such deed shall not be construed as a consummation of said bargain, and shall bo expressed in the document above referred to as executed on the 16th of January, 1865, but the said Bowman and Griswold, or their legal representatives shall be entitled to any other deed necessary by me to. be made, to -convey to them under the conditions of said document all the land they are entitled to by the terms thereof.” On the execution of the agreement of January 16, I860, Griswold and Bowman took possession of the land in the agreement mentioned, and have since been in possession. The land in survey 117 not having been conveyed, the purchasers paid $100 thereon. On the 10th day of June, 1866, Piggott tendered a deed from himself and wife to John B. Bowman, conveying fifty-three acres in survey 117 to W. D. Griswold, on which deed Bowman indorsed his reasons for refusing to accept the same, which were that the deed conveyed more land than the grantee owned or possessed^ or delivered possession of, or could convey and give possession of. On the 11th of February, 1874, Piggott died intestate, leaving as heirs at law the complainants, among whom was Dexter 0. Slaten, who was a minor, who did not become of age until within a short time prior to filing the bill in this cause. The evidence shows, that on the 11th day of April, 1885, G. Koerner, as attorney for complainants, tendered two deeds, one signed by Mary Jane Brock, Robert F. Brock and Asenath P. Lame, of date February 16, 1885, the other signed by Christopher J. Slaten, Allen M. Slaten, Dexter C. Slaten, Cornelia R. Allemang, Thaddeus A. Slaten, Dwight D. Slaten, John W. Slaten, Elisabeth P. Slaten, Adeline Slaten, Eva M. .Slaten, Milford Allemang, Victoria Slaten, and George M. Slaten, which deeds convey to W. D. Griswold and John B. Bowman 25.743 acres of land in survey Ko. 117, and these deeds were by Bowman required to be delivered to O. W. Thomas, who was attorney for Bowman, for examination, and his action thereon in accepting. When 'the deeds were so tendered to Thomas, as attorney for Bowman, he offered to pay a nominal consideration for the 25.743 acres, and made no specific objection to the deeds in any manner. On the 16th day of April, 1885, this bill was filed asking that the purchase money, with interest, should be paid, or that an account be taken of rents and profits derived from the land, and the original purchase money with the rents and profits, should be paid. Answers were filed by Bowman and Griswold, and subsequently a suggestion of the death of John B. Bowman was made, showing his personal representatives and heirs, and they being brought into court filed their answer. From the amended answer of Griswold, he ratifies the agreement made by Bowman for Griswold and Bowman; that it is not necessary to consider his testimony concerning a denial of any authority on the part of Bowman to make the contract.

3STo question is made as to the correctness of the survey or the quantity of land described in the deed, but it is insisted that no deeds were tendered to Griswold, and that the plaintiff had no title to the lands in survey 117, unless a tax title, and that for that only, a nominal price was to be paid.

The court entered a decree for complainants for the purchase money, with interest, and decreed the payment of 82.984.50, and upon payment of the same, the title should vest in the grantees in the deed, and in default of such payment, the master in chancery should sell the land in survey 117 as described on the bill, and from the proceeds pay to complainants the amount found due. The evidence shows that Bowman entered into the contract with Piggott in behalf of himself and Griswold and the making of the contract and all negotiations with reference to that contract and with reference to the execution of the deeds so far as Bowman and Griswold were concerned, was the act of Bowman. From the answer of Griswold it is shown he ratified the contract so made. That ratification of the contract was an approval of the acts of Bowman, and as he had been the active partner in reference to the entire matter, so far as he and Griswold were concerned, the tender of the deed to him was a compliance with the contract on the part of the heirs. When these deeds were so tendered, Bowman directed they should be submitted to his attorney, C. W. Thomas, for his examination, and when so submitted, no objection was made as to the form of the deed. But he pronounced the deed all right and proposed to pay a nominal price for the land. The payment of a nominal price was refused. It is now urged that the deeds are quit claim deeds, and that defendants are not bound to accept any other than warranty deeds under the contract. The deeds recite the agreement and convey all the interests the heirs of Piggott have in the premises and covenant against any acts of theirs to in any manner affect or incumber the title. Had an objection existed as to the form of the deeds at the time they were tendered and examined and stated to be all right, it was the duty of defendants to state that objection. Corbus v. Teed, 69 Ill. 205.

At the time of the execution of the contract of sale and for some years thereafter the quantity of land in survey Ho. 117 could not be determined, as there were conflicting claims with reference to a part of that survey, and litigation grew out of such conflicting claims, the several suits were determined and the amount of land mentioned in the deeds was found to be in Griswold and Bowman, who entered into possession under their contract of purchase from Piggott. It is insisted by the defendants that the complainants are guilty of laches in not sooner bringing their suit for performance. The evidence shows that shortly after the settlement of that litigation prior to determining the amount of land to be conveyed, one of the complainants was yet a minor, and when he came of age the deed was tendered, and shortly thereafter this bill filed. During all the time from the making of the contract, the vendees were in possession enjoying the rents and profits, and there was not such laches on the part of the complainants as to bar their action. It is urged, further, by the terms of the contract this land was to be paid for at the nominal price, as it is insisted that Piggott had no title other than a tax title.

By the contract of sale the vendees are to pay the vendor “for all of said lands so bargained and sold, and lying northwestwardly of the county road across said survey leading from Cahokia to Papstown, $75 per acre, and for all of said land lying sontheastwardly of said road $50 per acre.”

The plat of survey offered in evidence with the other testimony shows the quantity of land lying northwestwardly of said road to be 16.11 acres, and lying sontheastwardly to be 9.63 acres. By a memorandum shown to have been made by Bowman, the 23d of January, 1880, his calculation made the quantity substantially the same, and that southeast of said road lie calculated at $50 per acre. That memorandum, taking into consideration the contract, the quantity of 'land and the location, leaves the conviction that Bowman calculated this land as sold under the contract. It further appears that he was conversant with the title- Piggott had to the land. We are satisfied Ms intention at the time of the execution of the contract of sale was to include the lands in the contract at the price then mentioned, and the court found correctly, fr.om the evidence, that the lands in controversy were sold at the price as found by the court. The question as to what title Piggott had to the land is of more serious difficulty if it became necessary to determine that question, but as we view the facts in this record, it is not necessary for us to determine that question. As we have seen, the contract was to pay the price for the land as found by the court. The vendees were let into immediate possession of the land. The rents and profits of the land for about twenty years was about six dollars per acre, and that has accrued to the vendees. There has been litigation in reference to title and possession of parts of the land which has been adjudicated in favor of the vendees. Whatever interest they have in the land they acquired by virtue of their contract with Piggott. They have paid only $100 on a tract of land, which, as correctly found by the court, was to be paid for at the price of $1,689.75. The taxes with interest thereon as paid by these complainants since the vendees have been in possession, amount to $660.21. The interest on the value of the land from the time the deeds were tendered amounts to $448.25. These sums, less the $100 paid at the time of the delivery of the deed to survey 116 is the total of this sum decreed to be paid. The vendees make no oiler to deliver possession back to the heirs of the vendor, but seek to hold the same by reason of the clause in the contract that “What part of the said land is held by Piggott only under a tax title, is to be included in the conveyance of the balance at a nominal price.”

If BoAvman knew the condition of the title that Piggott had in this land, and entered into the contract that he did, it was a contract to pay a specified price for the land, and from all his conduct, from the manner in which he made the memorandum as to its value, we are satisfied that he treated this land as being specially contracted for at $50 and $75 per acre, and he to take whatever title Piggott had. He contracted to sell to them and they entered under the contract. That title was good enough to defeat the several suits brought to test the right to the possession of the land. It was a sufficient title for them to hold the land under for a term of more than twenty years/from the execution of the contract on the 16th of January, 1865, to the tender of the deeds on the 11th of April, 1885. That without determining the character of title Piggott held under the contract of purchase, it was to be paid for at the prices of 050 and $75 per acre, and the deed to convey such title as Piggott held. ¡Nor was it error to decree interest on the value of the land not paid for from the time of the tender of the deeds. After the execution of the deeds and their tender, complainants, or their ancestors, were not in default, and from that time interest was properly decreed to be paid. The decree is affirmed.

Decree affirmed.