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same should be canceled and discharged as to said premises; fifth, whether said court erred in decreeing that the plaintiff should pay to the defendant the purchase price, and that thereupon the defendant should deliver to it the warranty deed and release, instead of decreeing, in accordance with the prayer of the bill and the provisions of the contract, that the defendant should tender "a deed with covenants of warranty conveying said property" and a release of the mortgages, and that then the complainant should pay the purchase money; and whether the Appellate Court for the First District erred in affirming the decree of the circuit court.
JOHN S. MILLER, EDGAR A. BANCROFT, and ELDON J. CASSODAY, (GEORGE R. PECK, of counsel,) for appellant:
Where the contract contains no provision as to possession or interest, the rule is that if the vendee takes possession he must pay interest from that date. Calcraft v. Roebuck, 1 Ves. Jr. 221; Fludyer v. Cocker, 12 id. 25; Ballard v. Shutt, L. R. 15 Ch. Div. 122; Attorney General v. Christ Church, 13 Sim. Ch. 214; Powell v. Martyr, 8 Ves. Jr. 146; Rutledge v. Smith, 1 McCord, 231; Steenrod v. Railroad Co. 27 W. Va. 1; Bostwick v. Beach, 103 N. Y. 414; Binks v. Lord Rokeby, 2 Swan. 233; Boyle v. Roward, 3 Desauss. 555; Phillips v. South Park Comrs. 119 Ill. 626; Stevenson v. Maxwell, 2 Comst. 408; Gibson v. Clark, 1 Ves. & B. 500; Rhys v. Rail- ̧ way Co. L. R. 19 Eq. 93; Paton v. Rogers, 6 Madd. 256; Lang v. Moole, 31 N. J. Eq. 413; Blount v. Blount, 3 Atk. 636; Railroad Co. v. Gesner, 20 Pa. St. 240; Phillips v. Sylvester, L. R. 8 Ch. App. 173; Monro v. Taylor, 8 Hare, 51; Cleveland v. Burrill, 25 Barb. 532; Huntley v. Lyons, 5 Munf. 342; Pomeroy on Contracts, sec. 430.
Where the contract contains no provision as to possession, but provides a date for performance and for the payment of interest thereafter, if either party is in willful default equity will refuse to enforce the terms of the agreement for the benefit of such defaulting party. Leg
gott v. Railway Co. L. R. 5 Ch. App. 716; De Visme v. De Visme, 1 Mac. & G. 336; Lombard v. Chicago Sinai Congregation, 64 Ill. 447; 75 id. 271; Jones v. Mudd, 4 Russ. Ch. 122; Monk v. Huskinson, id. 122; Lofland v. Maull, 1 Del. Ch. 359; Riley v. Streetfield, L. R. 34 Ch. Div. 388; King v. Ruckman, 24 N. J. Eq. 556; Tewart v. Lawson, 3 Sm. & G. 307.
Where the contract provides a time for performance, with a provision for prior possession and an express agreement for interest from a day named, and the vendor merely neglects or is unable to perform, the vendee shall have the rents and profits and pay interest from the time fixed by the contract. Birch v. Joy, 3 H. L. Cas. 565; Cowper v. Bakewell, 13 Beav. 421; Baxter v. Brand, 6 Dana, 296; McKay v. Melvin, 1 Ired. Eq. 73; Brockenbrough v. Blythe, 3 Leigh, 676.
HERRICK, ALLEN & BOYESEN, (OSBORN & LYNDE, of counsel,) for appellee:
The complainant is required to make out a much stronger case to support an application for the specific performance of a contract than the defendant is required to show to resist it. Short v. Kieffer, 142 Ill. 266; Gas Light Co. v. Town of Lake, 130 id. 42; Railroad Co. v. Reno, 113 id. 43; Dintleman v. Gilbert, 140 id. 602; Leonard v. Crane, 147 id. 52.
A familiar instance of the application of this principle is in requiring the payment of interest as a condition of equitable relief in cases where there is no obligation at law to pay interest, as on a bill filed to set aside a tax sale as a cloud, or where usury is set up. Barnett v. Cline, 60 I11. 205; Mapes v. Sharp, 32 id. 13; Tooke v. Newman, 75 id. 215.
The vendee of land who is in possession and is not in default under his contract is in equity the owner, subject to the lien of the vendor for the unpaid purchase money. Baldwin v. Poole, 74 Ill. 97; Smith v. Price, 42 id. 399; Baker v. Bishop Hill Colony, 45 id. 264; Lombard v. Chicago Sinai Congregation, 64 id. 477; Stevenson v. Lochr, 57 id. 510.
When a deed vesting the legal title is made it has relation back to the date of the contract. Schneider v. Botsch, 90 Ill. 577; Gudgel v. Kitterman, 108 id. 56; Welch v. Dutton, 79 id. 465; Sutherland v. Goodenow, 108 id. 537.
Appellant should pay interest on the purchase money from the date fixed by the contract for the completion of the sale. Pomeroy on Specific Per. sec. 429; 2 Sugden on Vendors, (8th Am. ed.) 314; Fry on Specific Per. (3d Am. ed.) 649, 651.
This rule is expressly held in the following well considered English cases: Fludyer v. Cocker, 12 Ves. 25; Birch v. Joy, 3 H. L. Cas. 565; Powell v. Martyr, 8 Ves. 145; Ballard v. Shutt, L. R. 15 Ch. Div. 122; Attorney General v. Christ Church, 13 Sim. Ch. 212.
The rule has also been uniformly followed in this country. Selden v. James, 6 Rand. 464; Rutledge v. Smith, 1 McCord, 231; Brockenbrough v. Blythe, 3 Leigh, 619; Bostwick v. Beach, 105 N. Y. 661; McKay v. Melvin, 1 Ired. Eq. 73; Breckenridge v. Hoke, 4 Bibb, 272; Steenrod v. Railroad Co. 27 W. Va. 1; Stevenson v. Maxwell, 2 Comst. 413; Covell v. Cole, 16 Mich. 228; Boyle v. Rowand, 3 Desauss. 555. And see the following cases in Illinois: Lombard v. Chicago Sinai Congregation, 64 Ill. 478; 75 id. 271; Phillips v. South Park Comrs. 119 id. 629.
The cases cited for appellant do not conflict with the rule of these decisions. A reference to some of the best considered cases will illustrate the rule and the reasons on which it is based. In the following cases interest was allowed under the particular facts, notwithstanding the vendor remained in possession, he being charged with the rents and profits: Williams v. Glenton, L. R. 1 Ch. App. 206; Riley v. Streetfield, L. R. 34 Ch. Div. 388.
In the following cases there was a long delay because of the failure of the vendor to remove incumbrances at the time fixed for performance, yet the court applied the rule and allowed the interest from the day when the contract should have been performed: Birch v. Joy, 3 H. L.
Cas. 565; Selden v. James, 6 Rand. 464; Rutledge v. Smith, 1 McCord, 231; Brockenbrough v. Blythe, 3 Leigh, 676.
Mr. JUSTICE PHILLIPS delivered the opinion of the court:
It is apparent from a consideration of the facts appearing in this record, that the contract for the sale of the lots and land, and the lease, were, at the time of their execution, although separate instruments and covenants, a single contract. It was necessary for the appellant to have freight depot grounds and switch yards to make the . use of appellee's road, under the lease, of any value, and by the covenants of the lease "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," were to be furnished by the appellee company as a part consideration of the sum of $100,000 per annum to be paid under the lease by appellant. The situation of the two railroad companies was such that one, the appellee, had certain real estate which it would sell, which was suitable for railroad purposes, and had also a main and side-tracks entering the city of Chicago, with a depot centrally situated and located with reference to business, and for a sufficient consideration it was ready and willing to sell that real estate and lease the right of running trains over its tracks into its depot, and to have connecting switches from its main track to freight buildings, yards and switch yards of a lessee company for a long term of years. The appellant company, desiring to have access to and the benefits from the vast business of carriage to and from the city of Chicago, was desirous of leasing the right to run its trains over the main and side-tracks of the appellee company from Forty-ninth street to the depot of the appellee so located, and have the benefits to be derived from connecting switches with its freight buildings, grounds and switch yards. Even if the appellant com
pany had such right to run over the track and into the depot of the appellee company, to be benefited thereby it became necessary to acquire land on which to place its freight buildings and yards and its switching yards. The contracts of leasing and for the purchase and sale of the land above mentioned were entered into under these circumstances. Immediate possession of the lands was given, by the terms of the agreement, by the vendor to the vendee, and the latter took possession thereof and entered into the lease, by which it acquired the right to run over the main track from Forty-ninth street into appellee's depot, for a consideration of $100,000 per annum to be paid by it.
By the terms of the agreement, upon the performance of the stipulations of the agreement as to the time when the purchase price of the property first described becomes due and a release of the two mortgages placed on the property by the appellee and a tender of a deed by the latter, the appellant was to at once pay the purchase money. Until this was done the money did not become due as to tract first. As to tract second, the purchase price was to be paid upon the tender by the Western Indiana company of a warranty deed, with releases of the mortgages. By the terms of the agreement the purchase price of tract second should be determined before the contract became effective by the confirmation of the lease. Immediately thereafter the deed and releases might be tendered and the consideration collected. No delay thereafter in the tender of deed and releases and in the payment of the consideration was contemplated by the contract. Such deed and releases were tendered, and the purchase price, without interest, was paid and accepted on or after June 21, 1887. The bill alleges that the consideration, "as described in said agreement," was paid about June 17, 1887. The date of the deed is June 17, 1887, and of the acknowledgment June 21, 1887. The answer admits that the deed was delivered upon the pay