McNeal v. Calkins , 50 Ill. App. 17 ( 1893 )

Opinion op the Court,

Lacey, J.

It appears from appellant’s argument filed herein, that it is the third plea mostly relied on as being good. The plea is peculiar, in not showing or disclosing what interest the appellant had, in procuring the second deed from appellant to the Wilsons, of the real estate therein described. The only clue we get of any interest of appellant in the transaction, is from the terms of the contract, which only disclose that he was the holder of a $500 note given by Charles F. Calkins to B. S. and P. C. Wilson, and by the payees indorsed to appellant. If we can indulge in supposition; for the want of clearer information, appellant desired to have property placed in the Wilsons’ hands so that in the event he was forced to rely on the indorsers for payment of the note, they would be pecuniarily responsible.

However this may be, Ave must presume he had sufficient interest in the execution of the second conveyance named in the plea to induce him to sign the contract sued on herein. It was none of appellee’s concern what interest he had in the conveyance; she complied with his request, and appellant must be held liable, unless his plea shoivs failure or Avant of consideration, in the matter of what was conveyed as attempted. It is not stated in the plea that any warranty was executed as to appellant’s interest in or title to the realty, nor were any questions asked her concerning it or any attempt made to ascertain whether she had any. It is now insisted that she had no title to, or interest in the land, and therefore the Wilsons took nothing by the second deed, and appellant was defeated in his expectations in procuring title to be placed in the Wilsons, they did not before that time possess. If this was a quit claim deed, which we have a right to presume in the absence of an averment in the plea to the contrary, and had it been made direct to appellant as the grantee at his request, in the absence of fraud, it would have been a good consideration to sustain the contract in question or any agreement for the payment of money without reference to any title in the grantor. We see no reason why the rule should not be the same where a deed is made to a third person at the request of the person at whose instance it is done. Therefore we may treat the question the same as though the deed had been executed to appellant himself. The plea contains no averment of fraud, which it should do to raise that question, nor are there in it equivalent charges. It charges appellee claimed an interest in the real estate conveyed, that appellant was ignorant of the first release, and that appellee knew she had no interest, i. e., she knew of her former conveyance to the Wilsons of the same land, as we think the charge, fairly construed, means that under those circumstances the conveyance was executed and contract signed.

We cannot regard these allegations as being sufficient to supply a direct and positive charge of fraud or fraudulent intent on the part of appellee. In the case of Botsford v. Wilson et al., 75 Ill. 137, the Supreme Court uses the following language in answer to a similar charge, to wit: “ It is true the bill alleged that Mrs. Wilson claimed to own the title to the premises conveyed; such may, however, be said of almost every case where lands are conveyed by quit claim deed; it is not usual for a party to conváy lands by deed, unless there is some title or claim upon which to predicate a conveyance, and yet it has not been understood that a grantor was to be held to refund the purchase money upon failure of title, unless the deed contained covenants or unless fraud was used by the grantor.” See also Kent in Vol. 2, Sec. 473, cited in above case. No fraud was charged in the plea, and none was used so far as we can see from the allegations. In Sheldon v. Harding, 44 Ill. 68, the court uses this language: There can be no doubt that a quit claim deed for land, without reference to the character of the title, is, in the absence of fraud, a sufficient consideration to support a contract; money paid for such a conveyance can not be recovered back, or a plea of failure of consideration maintained to a note given for such conveyance. Such deeds are made because the vendor is unwilling to warrant the title; they are accepted because the grantee is willing to take the hazard of the title and believes it worth the price he pays for it .or agrees to pay. And unless fraud is practiced upon the grantee the law permits such contracts to be made and will uphold and enforce them.’' The above remarks are quite applicable to the case at bar.

In this case no fraud is charged and the deed, in the absence of averments to the contrary, will be held to be a quit claim; for in passing on a demurrer to a plea, the court will hold most strongly against the pleader. Either the third or fourth plea must be fictitious, as the averments are of alleged transactions of opposite import. However, we hold the plea bad on its face.

The fourth plea differs from the third, in that it shows that O. F. Galkins became, on the 23d May, 1884, the purchaser of a portion of the real estate first sold in 1816, by Wilsons to said Calkins and wife, and by them leased to Wilsons in 1882, for a consideration of $2,000. It is not stated in the plea whether this last contract was in writing or not. And the plea further differs from the third in showing that in pursuance of this last contract it was agreed to convey to one J, T. Browning, the said last sold and described real estate as trustee for said Calkins, to secure the said $2,000, Avhich Avas in the form of notes given by said BroAvning, giving a mortgage to said Wilsons on such premises to secure said notes. In pursuance of such agreement the plaintiff (appellee here) joined the said Wilsons and 0. F. Calkins in a deed of conveyance to said real estate as agreed, and that the consideration of the instrument sued on, was her so joining in said deed to said Browning, and the plea further avers that the appellee lcneAV of said last named contract, and that the object appellant had in procuring appellee to execute said last deed to Browning, was to procure the release of the first contract of sale made in 1816, and to clear the record of such contract, and that appellant was ignorant of the appellee’s release to the Wilsons made in 1882, and that appellee knew of such release. 'It will be seen that this raises no different question in principle from those raised by the third plea; in fact it is not as strong; for there is no averment that appellee knew that appellant was ignorant of the third contract of sale for $2,000.

The procuring of the release deed of the appellee, if a quit claim, was a good consideration in the absence of fraud, which is not charged. The plea studiously avoids showing whether or not appellee was the wife of C. F. Calkins, although it is so charged in the declaration, to which the plea purports to be an answer and a bar. As the declaration is not negatived in that particular, it will be presumed that such was the fact. If that be so, then the appellee had dower interest in the equity of C. F. Calkins under the last purchase at least, which was in full force, subject to the payment of the purchase price of the land, $2,000. Conceding that the inchoate right of dower of appellee was subject to the payment of the purchase money, it was not in the condition in which it was placed after she signed the last deed. If appellee was required to have any interest in the premises deeded, to support appellant’s contract sued on, given in consideration of such deed, we are of the opinion that her interest was sufficient, and the change of title beneficial to appellant. If her deed was a warranty, then the covenants were sufficient to support her deed; if a quit claim (and we may suppose the deed either), then no title was required in her, to support the contract.

From what we have said, it follows that the declaration showed a sufficient consideration to support the contract, and that it was and is good. The court, therefore, committed no error in sustaining the demurrer to the pleas, and in holding the declaration good. The instrument sued on and notes of Calkins together, were sufficient proof of the amount due, and it all rested in computation, after the fact of payment of the note by C. F. Calkins, was admitted as shown in the declaration, which was accomplished by failure to plead.

The judgment of the court below is therefore affirmed.