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lessor, for and in consideration of the premises, and for rents reserved, and the covenants and agreements on the part of the lessee and third party, has granted, demised and leased, and agreed to furnish, and by these presents does grant, demise and lease and agree to furnish, unto the said lessee, for the use of the third party, a right and privilege of using and running locomotives, cars and other rolling stock in use by said third party, for the purpose of the traffic of the third party, over and upon the main track or tracks of the railroad of lessor, meaning only the main tracks between the point of junction at Forty-ninth street, in the town of Lake, aforesaid, and the passenger depot of the lessor, in the city of Chicago, at Polk street, together with connections with lead tracks from said main tracks to and onto such property as the said lessee has or may acquire, in order to reach its freight buildings, freight yards and switch yards, and together therewith the right and privilege of using, for the purpose of the traffic of the third party, the passenger depot and its appendages of the lessor in the city of Chicago, and also of using the switches and side-tracks of the lessor, together with said main tracks between Forty-ninth street and the terminus at Chicago, to use in common with the five present tenants and the lessor."
The Western Indiana company proceeded with the work of completing the alignment, constructed the new tracks and the Eighteenth street viaduct, and had completed them by January 1, 1889. By the terms of the agreement the time had then arrived for the completion of the sale of tract first, but when the Atchison company requested the execution of a warranty deed of this tract and the release of the two mortgages, the Western Indiana company insisted that under the terms of the contract the Atchison company was not entitled to a deed with covenants of warranty such as had been delivered for tract second, but that the deed should contain a clause providing a defeasance of its rights to the property upon
its failure to comply with the terms and conditions of the lease of May 21, 1887. The Atchison company, on the contrary, insisted that although the lease and the contract of purchase were parts of one transaction, yet by the terms of the agreement it was entitled to a straight warranty deed for the lands agreed to be conveyed, and that the purchase money was not due until such a deed and the releases were tendered. It expressed a willingness to pay the purchase price upon the delivery of such a deed together with the release of the mortgages, and for the purposes of this case a tender of the purchase price was then made, but it refused to accept a deed containing any clause of condition or defeasance. Thereupon, on July 5, 1889, it filed in the circuit court of Cook county this bill for specific performance. The bill alleged the facts as already stated, making as exhibits the agreement, the lease and the deed of tract second a part of its averments. It prayed a decree requiring the Western Indiana company to procure the release of the mortgages and to execute and deliver a deed of conveyance in fee simple, with covenants of warranty, and that upon its failure the deed should be made by the master in chancery.
On December 12, 1891, the Western Indiana company filed its answer. This admitted the execution of the contract and lease, and also of the deed to tract second, but insisted that said deed was made without any clause of defeasance through an oversight. It insisted that the contract and lease were parts of one transaction, in furtherance of a single purpose, and that they were to be construed as a single instrument, and that the conveyance provided for in the contract was intended to be, and in fact was, subject to the conditions and covenants of the lease; that the premises described in the contract were appurtenant and essential to the use of the premises described in the lease, and that it was not intended by the parties that the Atchison company should have
possession and control of the former except in connection with those embraced in the latter, and that therefore the Atchison company was entitled, under the contract, to receive only a deed containing a clause of defeasance, by which its rights thereunder should be contemporaneous with and limited by its rights in the premises embraced in the lease. It admitted that the Atchison company went into possession of both tracts described in the contract upon the execution thereof, at the same time that it took possession of the premises described in the lease.
On the hearing opening statements were made, and in course of the opening statement counsel for the defendant stated that the defendant would not offer any evidence in support of the allegations of its answer except the evidence herein before set forth, and that, under the pleading and on the evidence which would be offered, no question would be raised by counsel for the defendant as to the right of the complainant to a decree of specific performance requiring the defendant to execute and deliver a deed of conveyance in the form prayed for in the bill, namely, a deed of conveyance in fee simple absolute, with covenants of warranty and without any defeasance or qualification, on the payment by the complainant of the purchase price fixed in the contract, and interest thereon from the first day of January, 1889, but that the defendant would contend and insist that any decree which might be entered should provide for payment by the complainant of interest on the purchase price from said first day of January, 1889. After the opening statements by counsel the pleadings were read to the court.
On hearing the following facts were admitted by the respective parties in open court, with like effect as if duly proved: That the defendant paid the taxes levied for the year 1887 on all the property described in said contract of June, 1887, set out in the complainant's bill, and thereafter, in the year 1889, the complainant paid
all the taxes levied and assessed on said property for the year 1888, and has since paid the taxes levied and assessed on said property for the years 1889, 1890, 1891 and 1892, respectively; that the area of the property first described in said contract is 98,724% square feet; that the description set forth in the final decree entered herein is a correct description of the property firstly described in said contract. No evidence in addition to said admissions of fact was offered on the hearing by complainant.
In addition to said admissions of fact the defendant gave in evidence on said hearing a letter to the president of the appellant company from a director and one of the five equal stockholders of the defendant company, an extract from which is as follows: "As I understand it, the whole understanding and intent on both sides was that you bought the property to go with the lease." The defendant also offered a reply to that letter from the president of the complainant company, an extract from which is: "It was thoroughly understood by the Chicago and Western Indiana company that in addition to securing passenger terminals by lease from that company we were at the same time securing, by purchase, lands for freight terminals. To obtain this latter we made purchases not only from the Chicago and Western Indiana, but from the Chicago and Grand Trunk, and of various private individuals. The same contract which provided for a lease by the Western Indiana company of certain rights, privileges and passenger facilities, provided with equal distinctness for a sale of certain lands describing them."
A decree was entered under these facts, finding the complainant was entitled to a deed of conveyance of tract first in fee simple absolute and to the release of the two mortgages upon it, and ordering that the complainant pay to the defendant within ninety days the agreed purchase price for said premises, with interest thereon at the rate of six per cent per annum from January 1, 1889,
to July 1, 1891, and at five per cent per annum from July 1, 1891, to the date of payment, and that upon said payment being made the Western Indiana company should at the same time deliver to the Atchison company a deed of conveyance of said premises in fee simple absolute, and procure and deliver sufficient releases of said mortgages, and that in default of the complainant paying said purchase price and interest aforesaid within the time named, its bill should be dismissed out of court with costs to be taxed, and the complainant should surrender to the defendant the premises described.
From that decree the complainant prosecuted an appeal to the Appellate Court for the First District, where a judgment of affirmance was entered, from which this appeal is prosecuted, and the errors assigned present the questions whether, first, said circuit court erred in finding that the defendant was entitled to interest on the purchase price of said premises from January 1, 1889, to the time of payment, as in its decree provided; second, whether said circuit court erred in decreeing that said complainant should pay interest on the purchase price of said premises from January 1, 1889, to the date of payment; third, whether said circuit court erred in neglecting and refusing to provide in its final decree that if the defendant should neglect or refuse to execute, acknowledge and deliver a proper warranty deed for said premises within the time fixed by said decree, the master in chancery of said court should execute, acknowledge and deliver such deed upon the payment within such time by the complainant of said purchase price, and legal interest thereon from the date of said decree to the time of payment; fourth, whether said circuit court erred in neglecting and refusing to provide in its final decree that upon the payment of said purchase price, with legal interest from the date of the decree, within the time limited in said decree, and upon the neglect or refusal of said defendant to deliver proper releases of said mortgages, the