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Callaghan v. Miller

OPINION FILED NOVEMBER 18, 1959.

CHARLES CALLAGHAN ET AL., APPELLEES,

v.

WILMA MARTIN MILLER, EXRX., APPELLANT.



APPEAL from the Circuit Court of Kane County; the Hon. CASSIUS POUST, Judge, presiding.

MR. JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:

Defendant Wilma Martin Miller, executrix of the estate of Altha G. Martin, deceased, appeals from a decree of the circuit court of Kane County, compelling specific performance of an alleged real-estate contract and ordering the defendant to execute a real-estate deed for same to the plaintiffs, Charles Callaghan and Sylvia Callaghan. From this decree, defendant appeals directly to this court, a freehold necessarily being involved.

On July 17, 1957, Mrs. Altha G. Martin engaged Mrs. Ida Tank, a realtor, to sell a certain five-acre tract of land north of Batavia, Illinois, and owned by her. The property was improved by a residence and used as a trailer court. Mrs. Tank obtained a 60-day exclusive contract to sell the realty for $52,000 at 5 per cent commission. The plaintiffs contacted Mrs. Tank in regard to a possible purchase of the same, and later inspected the property in company with Mrs. Martin, Mrs. Tank and Ralph Johnson. On September 9 the plaintiffs offered to purchase the property for $47,500, and tendered and deposited the sum of $1,000. Mrs. Tank communicated the offer to Mrs. Martin and drew up a receipt for plaintiffs which Mrs. Martin signed as approved. The receipt or memorandum was as follows:

"IDA M. TANK, Real Estate 123 W. Front Street, Wheaton, Illinois Room 26 Sept. 9, 1957

Received of Charles Callaghan and Sylvia Callaghan his wife, One Thousand Dollars ($1,000), being deposited as earnest money for purchase of the Altha Martin property located on Route 25, north of the city of Batavia, Illinois (not in corporation). This area comprises five acres more or less. The space now occupied by 20 trailers is properly licensed and zoned by the State of Illinois and Kane County Zoning Dept. (non-conforming use).

Above deposit is made on offer to purchase of the Altha Martin property for $47,500 with 1/3 cash at time of transfer of title to buyer, balance evidenced by amortizing mortgage with $200 or more to be paid each month thereafter, plus interest at 5 per cent per annum paid monthly on the unpaid balance.

Subject to approval by owner.

Possession to be given 30 days after closing of above deal.

/Sgnd/ Ida M. Tank, Realtor

Approved Altha G. Martin /Sgnd/."

In the presence of Mrs. Tank and Ralph Johnson, Mrs. Altha G. Martin signed the receipt or memorandum "approved" and signed her name. Mrs. Tank placed the $1,000 in her special account in the Gary-Wheaton Bank, and delivered a copy of this receipt to the plaintiffs.

Thereafter, Mrs. Tank called Richard D. Shearer, the attorney for Mrs. Martin, and requested that he draft a contract setting forth the detailed terms of the purchase and sale. On September 17, 1957, Shearer prepared a contract, and the plaintiffs appeared in his office and signed it. They were then informed that Mrs. Martin was ill in the hospital.

Shearer asserted that he told the plaintiffs that if Mrs. Martin did not recover to sign the contract they would have no deal. The plaintiffs deny such a conversation was had. About four days later Mrs. Martin died without having signed the contract. Mrs. Wilma Miller, a daughter of Mrs. Martin and the executrix of her estate refused to convey the property to the plaintiffs, and they brought this proceeding for specific performance to require the executrix to convey the realty to them. The cause was tried before the court without a jury, and the court found that the memorandum met the requirements of the Statute of Frauds, and decreed specific performance. A freehold being involved the defendant executrix appeals directly to this court, contending that the receipt or memorandum on its face does not spell out the terms with sufficient certainty and clarity for the court to enforce the same without additional evidence, and the testimony herein was provided by interested parties, contrary to section 2 of the Evidence Act. Ill. Rev. Stat. 1957, chap. 51, par. 2.

Section 2 of the act relating to contracts under seal provides that when one party to a contract, bond, or memorandum in writing, to make a deed to land in this State for valuable consideration, shall have died, without having executed or delivered the deed, any chancery court in a county where the land is situated may compel the executor or administrator of such deceased person to execute and deliver such deed. (Ill. Rev. Stat. 1957, chap. 29, par. 2.) Section 3 of the same act provides that a court may make such order only upon a petition in writing of the person entitled to the benefit of the same, or his heirs, setting forth the contract or memorandum in writing, and fully describing the lands to be conveyed, reasonable notice of ...


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