Appeal by defendant from the Circuit Court of Sangamon county;
the Hon. DE WITT S. CROW, Judge, presiding. Resubmitted in this
court at the October term, 1951, in accordance with Supreme Court
of Illinois mandate. Reversed. Opinion filed January 24, 1952.
Rehearing denied March 21, 1952. Released for publication March
MR. JUSTICE REYNOLDS DELIVERED THE OPINION OF THE COURT.
Rehearing denied March 21, 1952
This is an appeal from a judgment in the circuit court of Sangamon county in an action at law brought by plaintiff-appellee against the defendant-appellant, wherein plaintiff recovered judgment on directed verdict in the amount of $4,061.47, plus interest, being the amount of his down payment, under contract, for the purchase of real estate located in Iroquois county, Illinois.
The death of Samuel S. Christopher, plaintiff-appellee, has been suggested and motion has been allowed to substitute in his stead, Edith Christopher, executrix of the last will and testament of Samuel S. Christopher, deceased.
The death of George E. West, defendant-appellant, has been suggested and motion allowed to substitute in his stead Corrine I. Zick, executrix of the will of George E. West, deceased.
This cause was passed upon by this court at the October Term, 1949, and from the decision of this court, Edith Christopher, as executrix of the last will and testament of Samuel S. Christopher, deceased, appealed to the Supreme Court. The Supreme Court reversed the decision of this court and remanded the cause to this court with instructions to consider and pass on the assigned errors remaining undetermined. (Christopher v. West, 409 Ill. 131.) The cause therefore comes back to this court for decision on those matters not passed upon by the Supreme Court.
The contract upon which the action is based was executed by the parties on February 22, 1946, in Ford county, where the real estate in question was sold at public auction, the material parts of the contract being as follows:
"If the second party shall first make the payments and perform the covenants hereinafter mentioned on his part to be made and performed, the said first party hereby covenants and agrees to convey and assign to the second party in fee simple by good and sufficient warranty deed (the real estate in question), and the said party of the second part hereby covenants and agrees to pay to the said party of the first part the sum of $27,076.50 in the following manner: $4,061.47 on this date and the balance on or before 90 days from this date . . . and in case of failure of said party of the second part to make either of the payments . . . this contract shall at the option of the party of the first part be forfeited and determined and the party of the second part shall forfeit all improvements and payments made by him on this contract . . ."
"The first party agrees to furnish an abstract showing title to said real estate in accordance with this contract and allow second party reasonable time to have same examined and thereafter first party shall within a reasonable time correct defects, if any, and shall make such abstract show a merchantable title . . . It is mutually agreed by and between the parties hereto that the time of payment shall be the essence of this contract . . ."
Plaintiff apparently took possession of the premises on or about March 1, 1946, which possession does not appear to have been disturbed at any time thereafter.
On or about May 15, 1946, plaintiff received at his home in Sangamon county an abstract of title to the real estate in question certified to May 8, 1946. Defendant testified, and there was no evidence to the contrary, that the abstract was mailed from Ford county, in accordance with plaintiff's instructions and was addressed to an agent of plaintiff in Sangamon county who delivered it to him.
On or about May 18, plaintiff's attorney rendered to him a preliminary written opinion on the merchantability of the title, wherein objection was raised that the abstract failed to show the following:
1. That notice of petition to probate the will of Logan A. Gridley, a predecessor in title of defendant's, had been given to decedent's heirs, legatees and devises.
2. That the First National Bank of Chicago was the successor of the First Trust & Savings Bank, devisee and trustee under the will of said Gridley.
3. That the First National Bank of Chicago, as successor-trustee, had power or authority under the power of sale granted in the Gridley will, to effect, by exchange or quitclaim deeds, a voluntary partition of the real estate here in question which together with other land, was held, as tenants in common, by said trustee and one Mary Gridley Bell, defendant's immediate predecessor in title, with the result that title to the undivided one-half of the real estate in question, which the trustee so purported to convey to said Mary Gridley Bell, remained of record in the trustee.
On or about May 20th, 1946, plaintiff's attorney mailed a copy of this opinion from Springfield, addressed to defendant in Ford county. It appears that the latter was critically ill at the time and upon receipt of the copy of the opinion turned it over to his brother, Frank H. West, authorizing him to act as his agent in regard to the transaction. The brother went on May 22nd or 23rd, 1946, to the office of plaintiff's attorney in Springfield, and there discussed at some length with him the objections raised. There is some indication in his testimony that the brother, prior to this conference, had taken up with Attorney J.H. Benjamin (who ...