APPEAL from the Circuit Court of Cook County; the Hon. DANIEL,
A. ROBERTS, Judge, presiding.
MR. CHIEF JUSTICE CRAMPTON DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 18, 1953.
This is an appeal from a decree of the circuit court of Cook County which ordered defendant, the purchaser in a contract for the sale of real estate, to specifically perform its contract with plaintiffs, who were the vendors.
The case was decided upon the pleadings, which consisted of a complaint, answer, and plaintiffs' motion for judgment on the pleadings, which motion was allowed. Plaintiffs' motion admitted all the facts well pleaded in defendant's answer and challenged the legal sufficiency of such facts to constitute a defense. (Giese v. Terry, 382 Ill. 34.) It is therefore necessary to consider the complaint and answer in detail so that we can determine whether the answer of defendant raised any defense.
The following material facts are admitted by the pleadings: One Albert M. Billings was the owner of the real estate here involved, prior to his death in 1897. By his will, he devised this property, commonly known as 530-536 N. State Street, Chicago, as follows: Two thirds thereof for life to testator's son, Cornelius Billings, and one third thereof for life to testator's grandson, Albert Ruddock. Upon the death of Cornelius Billings without issue surviving, the remainder passed to Albert Ruddock for life; upon the death of Albert Ruddock without issue, the remainder passed to testator's brother, John Billings, if alive at the time of Albert Ruddock's death, and to testator's nephews and nieces living at said time. It will be noted that no provision was made for the event of the death of either life tenant leaving issue surviving.
In 1899, the will was construed by the circuit court of Cook County, which appointed trustees to manage testator's property, including that involved here, during the lives of the life tenants. In addition, the decree found that in the event that either of said life tenants died leaving issue surviving him, the remainder interest passed to said issue. The 1899 decree gave said trustees power to sell the property but provided that "no sale * * * shall be made by said trustees without first procuring the express order and direction of said Court."
Cornelius Billings died in 1937, leaving as his only issue Blanche Pauline Vander Poel, one of the plaintiffs, to whom the trustees conveyed title in 1938, pursuant to an order of court entered in the original chancery proceedings.
In 1947, the surviving trustees and Blanche Pauline Vander Poel, as lessors and vendors, entered into a lease and agreement with defendant, which agreement is the one involved herein. Merritt Kirk Ruddock and Billings Kirk Ruddock, who were the only children of Albert Ruddock, joined in said lease and agreement for the purpose of being bound by their provisions in the event that title to said real estate would vest in them by the death of the said Albert B. Ruddock. We may disregard the provisions of the lease, for they are not material here. The agreement provided that if, at any time the lease remained in effect, the lessors were able to convey to lessee a merchantable title to said property, the lessors agreed to sell and lessee agreed to buy it for $125,000. It was provided in the agreement that merchantable title might be evidenced by a report on title to be made by Chicago Title and Trust Company, guaranteeing title in lessors, subject to the usual terms, conditions and exceptions contained in the regular form of owner's title guarantee policy or report on title, and subject to certain restrictions of record with reference to sale or use of the premises, and further subject to a certain petition for condemnation of a portion of said property filed in the superior court of Cook County. Defendant acknowledged in said agreement that it had been informed by lessors that title to an undivided two thirds of said property was vested in Blanche Pauline Vander Poel by virtue of said will and deed; that Albert Ruddock was still living and his two sons, Merritt Kirk Ruddock and Billings Kirk Ruddock, had a contingent interest therein; and that said sons were joining in the agreement so as to be bound thereby in the event they survived their father. Defendant further acknowledged that it had been informed by lessors that the powers of the trustees to sell were subject to the authority of the court. It was further agreed that lessors were under no obligation to acquire any outstanding contingent interest to perfect their title although they might, in their discretion, acquire such an interest and thereupon demand performance. Upon the furnishing of a report on title, subject only to the exceptions referred to above and "the usual objections contained in owners' guarantee policies issued by Chicago Title and Trust Company," the sale was to be closed through an escrow with said company "in accordance with the general provisions of the usual form of Deed and Money Escrow Agreement then furnished and in use by the Chicago Title and Trust Company with such special provisions to be inserted therein as may be required to conform with said report on title."
In 1949 an order was entered in the original chancery proceedings making any living nephews and nieces of testator parties to the suit, and thereafter an order was entered finding that said living nephews and nieces had been made parties as "unknown heirs or devisees of Albert M. Billings, deceased," and that due notice had been given them by publication. By said order it was found that all of testator's nephews and nieces were deceased, so that their contingent interests had terminated. It was further found that John D. Billings, testator's brother, was deceased, so that his contingent interest was likewise terminated. It was ordered that the unknown heirs and devisees of testator, together with any after-born children or grandchildren of Albert Ruddock who might be living at his death, were bound by the original 1899 decree and all subsequent decrees. By this order, the trustees were expressly authorized to join with Blanche Pauline Vander Poel in any conveyance. In 1950 an order was entered expressly authorizing the sale of the property involved herein to defendant.
In 1950, while the lease was in force, lessors tendered a report of title to defendant and demanded performance of the agreement, and thereafter, in the same year, made a second tender and demand. Defendant refused to perform the agreement, and, in letters written by its attorneys to plantiffs' agent, set forth the grounds of their refusal to perform, which were as follows: Lessors were unable to furnish merchantable title because of (A) an ordinance of the city of Chicago providing for the widening of North State Street by the acquisition of adjoining property, which included the property involved herein; (B) lack of authority of trustees to sell; (C) the report on title specified that deeds should be obtained from Albert B. Ruddock and spouse and his children and respective spouses; (D) said report on title was subject to the right of any party interested to set aside, reverse or modify any of the orders in said chancery proceedings by any direct proceedings; (E) the issuance of a Chicago Title and Trust Company guaranty policy would not give them a merchantable title, even if all objections were waived by said company, since said policy does not guarantee a merchantable title, but only agrees to indemnify the policyholder from loss in the event of defects in the title. A further objection was that the agreement was void for indefiniteness since the language quoted above pertaining to the escrow agreement did not specify the terms of said agreement and particularly did not provide whether the deeds should be recorded before the money is paid over to lessors.
The foregoing facts stand admitted and we must determine whether, upon these facts, plaintiffs were entitled to a decree. In addition to the objections to title noted above, defendant claims that plaintiffs are not entitled to relief for the following reasons: Plaintiffs had an adequate remedy at law; the agreement provided that upon default by defendant, lessors could terminate it, which defendant claims was their sole remedy; plaintiffs were guilty of laches in attempting to enforce the agreement; and finally, that the agreement lacked mutuality.
Defendant's first objection was to the ordinance which, it will be noted, provided for the eventual taking of some of the property here involved, as did the condemnation proceedings referred to in the agreement. The agreement provided that in the event the condemnation proceedings proceeded to judgment before the consummation of the sale, the agreement could be canceled by either party. The filing of the petition was not a taking of the property, and likewise the passage of the ordinance was not. (Mills v. Forest Preserve Dist. 345 Ill. 503.) The parties contemplated that the property might eventually be taken by power of eminent domain and agreed that, if it were, the agreement could be canceled. Until such time, however, the agreement was to remain in force. The passage of the ordinance had no more effect on the property than the filing of the condemnation proceedings. Since the property had not actually been taken under the ordinance at the time of the tender, we are of the opinion that this objection was without merit.
The lack of authority on the part of the trustees to sell is predicated upon the decree of 1899, which provided that court approval of the sale was necessary, and also upon the contention that none of the proceedings in the chancery suit ...