Bragg v. Chilcote , 176 Ill. App. 371 ( 1912 )

Mr. Presiding Justice Thompson

delivered the opinion of the court.

The evidence shows that negotiations for the sale of the land were conducted by Hancock & England, real estate agents at Tuscola, Douglas County, Illinois. The appellee resided at Tuscola, and the appellants at Paris, Edgar County, Illinois. The parties were not personally acquainted and did not meet until after the contract was executed. The contract was executed at Tuscola by appellee and was carried to Paris by England to be executed by appellants. The appellee at the time of executing the contract paid one hundred dollars and executed and delivered a note for $2,900 payable to the order of Hethcoat Chilcote in thirty days. This note was transferred by Chilcote before it was due and paid by appellee at maturity. The contract provides “that time is of the essence of this contract.”

By the terms of the contract appellants were to furnish on or before October 15, 1910, “a complete abstract of the title to the premises, brought down to date, certified to by a competent abstracter, showing a good title to the premises, free and clear of any and all incumbrances.” Appellant did not furnish the abstract by October 15th but did furnish an abstract on November 13th and appellee received the abstract at that time. By receiving it he waived the default of the appellants in anything wherein they had made default prior to that time, but did not waive the provision that the abstract when furnished must show a good title to the premises in appellant. Appellee immediately gave the abstract to Mr. Chadwick, his attorney, for an opinion upon it. The abstract contained 154 pages and it took several days for the attorney to fully examine and make a report on it. On November 22d, the attorney made a written report, which was received by appellee on the 23rd, showing that there were many defects in the title, such as that in several of the deeds it was not shown whether the grantors were married or single, defective acknowledgments, outstanding tax titles and unreleased mortgages. As to a mortgage for $10,000 due December 29, 1910, there is proof tending to show that in August appellee agreed that he would advance the money to pay it out of the cash payment he was to make March 1, 1911, and accept interest on such advance payment. On November 25th appellee met Hethcoat Chilcote in the office of the real estate agents and stated that appellants had not lived up to the contract, that the title was not good and demanded his money back.' Appellee at the request of Chilcote went with him to the office of the abstracters. Appellee there stated that he did not believe the title could be perfected and Chilcote thought it could. After appellee left the abstract office, Chilcote directed the abstracter to do what was necessary to correct the title and to amend the abstract.

The attorney who examined the abstract, in his written opinion, made suggestions as to how several of the defects could be cured and sent a copy of his opinion to his client and one with the abstract to the abstracter. This the appellants argue was a request from the appellee for corrections in the title and amendments to the abstract. Appellee made no request to have the title corrected and did not authorize any one to make any such request for him, but immediately notified appellants that the title was not good and demanded his money back. This he did orally on November 25th, and on December 15th, by letter to appellants.

After the opinion of the attorney was rendered that the title was not good and after appellee had told appellants that the title was not good and demanded his money back, the abstracter between that time and February 25,1911, added twenty-four pages to the abstract after the original certificate to it made November 10th, inserted several pages in the body of the abstract, made corrections on the original sheets, added four pages of affidavits, removed the original caption at the head of the abstract and inserted a new one changing somewhat the description of the property. Hancock, one of the real estate agents who negotiated the sale, testified that he tendered the abstract as amended to appellee on February 25, 1911, and that appellee said he would not receive it; that his attorney had told him the title was not good. Appellee testified it was not so tendered him and that he never saw it as amended until March 1st, when the abstract and deeds executed February 24, 1911, were tendered to appellee by one of the attorneys for appellants and appellee again said he had decided not to take the land; that his attorneys had advised him in the fall that the title was not good.

The appellants did execute deeds and leave them at the bank within ten days from the execution of the contract, but it appears that there was an error in the description of the land in one of the deeds. After the opinion of the attorney on the abstract was rendered, appellants withdrew the deeds from the bank and on February 24,1911, executed new deeds, which were the deeds tendered on March 1st.

The contract gave appellee “a reasonable opportunity to have said abstract examined” that was to be furnished on or before October 15th, but contains no provision for an opportunity thereafter for appellants to amend the abstract or cure defects in the title. If the title was not shown to be a good title by the abstract when it was furnished, then appellee had the right at that time to rescind the contract because of the failure of appellants to furnish an abstract showing a good title. The waiver of the right to rescind because the abstract was not furnished at the time agreed was not a waiver of the right to rescind because it did not show a good title. 29 Am. & Eng. Ency. of Law 675. “A fee simple title is a merchantable title, that is, a title not subject to such reasonable doubt as would create a just apprehension. It is such a title as would be regarded as merchantable, so that persons of reasonable prudence and intelligence would be willing to take it and pay the fair value of the land.” Hale v. Cravener, 128 Ill. 414; Harding v. Olson, 177 Ill. 303; Attebery v. Blair, 244 Ill. 363.

The abstract as presented November 13th, did not show a good title in appellants and did show some serious defects in the title. The failure of certain of the conveyances in the abstract to show whether the grantors were married or single was a defect relating to the substance of the title, since if the grantors were married the wives, if they survived their husbands, would be entitled to dower after"the death of the grantors. The right to have dower assigned does not accrue until after the death of the husband. It was a substantive defect that could not well be remedied by a suit at law for damages under the contract. The covenant for a good title to be shown by the abstract, when it should be furnished was not dependent on any of the other covenants, but they were dependent on it. The abstract failing to show a good title when it was presented was a default in a substantial part comprehending the foundation of the contract. The appellee was, under the contract, entitled to know whether he was getting what he contracted for at the time fixed in the contract, or if he waived that time, then when-. ever he did accept the abstract, so that he might have the time provided for, except in so far as he waived it, after the title was shown to be merchantable to make preparation for the payment of the large amount of the purchase price. The contract did not provide that appellants might have any time after the abstract was furnished to cure defects; therefore the purchaser had the right after a reasonable time for its examination, the abstract not showing -a good title free and clear of any and all encumbrances—except the $10,000 mortgage due December 29,1910, which defect the appellee had waived so far as the abstract was concerned—• either to treat the contract as inoperative and demand the return of his payments made, or to pay the balance of the purchase money and demand a deed of the premises in the exercise of his legal option to take the defective title disclosed hy the abstract. Lancaster v. Roberts, 144 Ill. 225; Bishop on Contracts, sec. 828. Appellee did exercise his option to rescind the contract because the abstract did not show a good title, and did rescind it in November, immediately upon receiving the opinion of his attorney. He was not in default at any time, and appellants did make default in the performance of a substantial part of their contract. Appellee was entitled to recover the money paid on the contract; the judgment is therefore affirmed.

Judgment affirmed.