Slike stranica

(161 N.E.)

"Are you going to give me a copy of that contract with Briggs & Turivas?" and that the witness replied "No;" that Stuckrath said, "That is all I want to know;" and walked out. This testimony is not denied by Stuckrath.

[5] Plaintiff in error offered to prove by Christian Krueger, of the Blue Island bank, that the latter had agreed to supply the necessary funds to complete the purchase of the property. Objection to this offer was sustained. This ruling is assigned as error. This error does not justify a reversal of the decree. Turivas testified that he had a conversation with Krueger, in which Krueger told him that he was not financing Stuckrath; that the latter was not to be taken seriously; that he was doing business on a shoestring. Krueger, when placed on the stand, admitted that Turivas asked him whether he was going to finance Stuckrath, but testified that he did not say that he was and did not say that he was not. His answers were evasive. We are of the opinion, from the entire evidence in the record, that, though the offered evidence had been admitted, the chancellor was justified in finding that in fact Stuckrath had no one to finance him. He admits that he at no time made a request that a proposed financial backer have the contract or see it. He made no demand for a copy at the time he made tender and demanded a deed. We are of the opinion that failure to give the plaintiff in error a copy of the contract did not justify his delay or refusal to make the payments required by the contract. Turivas and Hopkins testified that the contract was available to any one financing the deal for Stuckrath, but that they received no such request. If he had a financial backer who wanted the contract, he naturally would have made some effort to have him put into possession of the contract. The cases cited by Stuckrath's counsel to support his contention that it was required that a copy be first delivered by the vendor and that he was excused from performance pending delay so to do are not applicable to the facts of the case.

[6] Turivas testified that, in a conversation with Stuckrath prior to September 15, 1921, he informed him that Briggs & Turivas would expect the payment of $25,000 on that day, and would not grant an extension of time, that he again on the 15th of September, or the day before, reminded him of the payment, and that Stuckrath said that he had hoped Briggs & Turivas would grant him an extension of time, but he was informed that it would not do so but that, unless he made the payment at that time, the contract would be terminated. He also testified that in February, 1922, owing to the necessity that his firm dispose of the property before the report to the secretary of state, due on March 1 of that year, a syndicate was formed to take

over the property and it was again transferred to Hopkins, who holds it for the syndicate. Plaintiff in error contends that, since all of the parties to this syndicate were in one way or another connected with the Briggs & Turivas corporation or its counsel, this transfer was a device to avoid performance of the contract. It is not claimed, however, that the transfer was made to third parties without notice of the transactions with Stuckrath concerning the property, but it was made on the ground that Stuckrath having failed to make the necessary payments, taxes, and interest charges, as required by the contract, the same was no longer in force. Though it be conceded that the transfer to the syndicate could not operate to defeat the right of Stuckrath to an enforcement of the contract, if he had such right, we are of the opinion that his utter failure to carry out any portion of the contract from September 15, 1921, the date of the first payment, until May 5, 1923, when he made tender and demanded a deed, shows a state of facts justifying denial of specific performance. It is conceded that during that period the property rose very rapidly in value, and that during all that time it was necessary that Briggs & Turivas pay the taxes, principal, and interest payments on the mortgage, and other charges arising thereon. Plaintiff in error's bill was not filed until July 10, 1923. Though the decree against him was entered on March 11, 1925, this writ of error was not sued out until March 5, 1927. During all this delay the value of the property advanced sharply. One may not delay application for relief in equity in a case of this character for the purpose of speculating on the rise or fall of the value of the property embraced in the contract. In order to entitle one to a decree requiring the specific performance of such a contract, the complainant must be ready to perform at all times the accrued obligations resting upon him. Unreasonable delay, particularly where there has been a material advance in the price of the property, will defeat the right to specific performance. Bauer v. Lumaghi Coal Co., 209 Ill. 316, 70 N. E. 634; Morse v. Seibold, 147 Ill. 318, 35 N. E. 369; McCabe v. Crosier, 69 Ill. 501. Equity will not permit a purchaser to hold back and gamble on the future rise of property. Boardman v. Bubert, 325 IIL 38, 155 N. E. 784; Hayne v. Fenton, 321 Ill. 442, 151 N. E. 877; Hoyt v. Tuxbury, 70 Ill. 331.

[7] Plaintiff in error contends that he was entitled to notice of forfeiture of the contract, and that, not having received notice, the contract was still in existence when he made tender and demanded a deed. A rescission or abandonment of a contract in writing may be deduced from circumstances or a course of conduct clearly evincing abandonment. Hayes v. Carey, 287 Ill. 274, 122 N. E.

524; Lasher v. Loeffler, 190 Ill. 150, 60 N. E. 85; Cuppy v. Allen, 176 Ill. 162, 52 N. E. 61; Hale v. Bryant, 109 Ill. 34. The rule requiring notice of forfeiture of a contract for the sale of real estate is based on conduct on the part of the party seeking the benefit of forfeiture which would lead the other party to infer that he was not insisting on time as of the essence of the contract. Under such state of facts the authorities are uniform that notice and demand must be made before the contract may be forfeited. Such rule has no application here. There has been no showing whatever in the record that Briggs & Turivas did or said anything to plaintiff in error that would indicate the firm was not insisting up on performance of the contract in accordance with its terms as to the time of payment. On the contrary, the testimony of Turivas was that he informed plaintiff in error on September 15, 1921, when the first payment was due, or the day before, that such payment must be made in accordance with the contract or the contract would be terminated. This was notice of an election to insist on a strict performance of the contract according to its terms. This Briggs & Turivas had a right to do, and, unless it by its own acts led plaintiff in error to believe that the forfeiture would not be insisted upon, he knew the contract was terminated. He had notice by the contract that Briggs & Turivas had a right to terminate it. Having been told that the contract would be terminated, he had notice of an election to terminate it in case of a failure to pay. At no time thereafter did he make any attempt to perform.

[8-10] The rule is that where a contract for the sale of real estate is entered into with complete understanding and fairness on both sides, and the party seeking specific performance has done that which was required of him by the contract and stands ready to perform the part yet to be done, such relief will be granted, not as a favor, but as a matter of right, where the rights of third parties have not intervened. Fagan v. Rootberg, 320 Ill. 586, 151 N. E. 491; Gottlieb v. Kaplan, 319 Ill. 60, 149 N. E. 586; Park v. Koopmann, 311 Ill. 350, 143 N. E. 80; Mackie v. Schoenstadt, 307 Ill. 398, 138 N. E. 686; Riemenschneider v. Tortoriello, 287 Ill. 482, 122 N. E. 799. It is also the rule that where, by reason of default, laches, or circumstances which appeal to the good conscience of the chancellor, the enforcement of the contract would be inequitable, the relief will be withheld. Booth v. Edwards, 322 Ill. 489, 153 N. E. 677; Miller v. Shea, 300 Ill. 180, 133 N. E. 183. There is not, as is supposed, any inconsistency between these statements of the rule. The discretion of the chancellor is authorized where circumstances show the enforcement of the decree to be inequitable. In this case plaintiff in error performed none of the re

and paying for the 10 acres hereinbefore referred to. That, in the contract itself, is treated as a separate transaction, and was completed, and plaintiff in error received a profit of $10,000 from the transaction. He made no effort to perform for a year and nine months following the execution of the contract. After notice from Briggs & Turivas that it would expect a strict compliance with the contract, and the failure of plaintiff in error to meet the payments due on September 15 and November 15, defendants in error had a right to treat the contract as abandoned. Hayes v. Carey, supra. The chancellor saw and heard the witnesses, and, from an examination of the somewhat lengthy record of evidence, we are satisfied that we would not be justified in disturbing his findings of fact. Plaintiff in error did not discharge the burden cast upon him to establish his right to a decree for specific performance.

The decree dismissing the bill will therefore be affirmed. Decree affirmed.

(330 Ill. 95)

PEOPLE of State of Illinois, Defendant In Error, v. Irwin HATRIDGE, Plaintiff in Error. (No. 18613.)

Supreme Court of Illinois. April 21, 1928.

Error to Appellate Court, Fourth District, on Error to Circuit Court, Madison County; George A. Crow, Judge.

J. J. Bullington, of East St. Louis, and H. J. Bandy, of Granite City, for plaintiff in


Oscar E. Carlstrom, Atty. Gen., Alvin C. Bohm, State's Atty., of Edwardsville, and Roy D. Johnson, of Springfield (I. H. Streeper, of Edwardsville, of counsel), for the State.

DUNN, J. Irwin Hatridge has sued out a writ of error to review a judgment of the Appellate Court which affirmed a judgment of the circuit court of Madison county, whereby he was adjudged guilty of embezzlement and was sentenced to pay a fine of $200 and to be imprisoned in the penitentiary for one year or until discharged according to law. The indictment included Harry Clark and Stowell Beach as well as the plaintiff in error, and charged that on October 23, 1922, Clark was president, Beach a director and chairman of the board of directors, and Hatridge cashier of the First State & Savings Bank of Wood River; that the bank was then insolvent and the defendants knew it was insolvent, and that on that day they willfully, knowingly, and fraudulently received from Emil Krauss, who was not indebted to the bank, $145 as a deposit, whereby the

(161 N.E.)

On a

ants were guilty of embezzlement.
trial the jury found all the defendants guilty
and fixed the punishment of Clark and Beach
at a fine of $290 each and of Hatridge at a
fine of the same amount and imprisonment in
the penitentiary for one year. Beach was
granted a new trial and the case against him
was afterward dismissed. The motion of
Clark and Hatridge for a new trial was de-
nied and they were sentenced according to
the verdict. The Appellate Court affirmed
the judgment as to Clark and reversed it as
to Hatridge for the error in sentencing him
to a definite term of imprisonment, and as
to him the cause was remanded, with di-
rections to enter judgment of imprisonment
for an indeterminate period in accordance
with the opinion.

The record is for all practical purposes the same as that in People v. Clark, 329 Ill. 104, 160 N. E. 233. The cases are based on the same facts, except that in the latter the deposit was of $294 received from George Smith on October 31, while in this case the deposit was of $145 received from Emil Krauss on October 27, though the date alleged was October 23. There was the same failure in this case as in the former case to

even though it appeared that F. was married before he married plaintiff, where it did not appear that his marriage had not been dissolved prior to his marriage to plaintiff.

3. Husband and wife 492 (7)-Presumption that husband, taking interest in real estate in name of wife, intended gift to wife, may be rebutted.

Presumption that, where husband purchases real estate, and title to property or an interest therein is taken in name of wife, husband intended gift to his wife, may be rebutted.

4. Trusts 103(3)—Wife, who made bigamous marriage and procured conveyance to herself and second husband as joint tenants of land paid for by husband, on agreement to return to him, without intent to comply therewith, held interest as trustee.

Where marriage was unlawful because of wife's previous marriage, and real estate, purchased by husband, was conveyed to husband and wife as joint tenants on condition that wife return to husband and assume her duties as housewife, and she never intended to carry out agreement and did not do so, wife held interest in real estate as trustee, and husband was entitled to have reconveyance to him.

Appeal from Superior Court, Cook County; Harry A. Lewis, Judge.

Suit by Eva M. Crysler against George Crysler for divorce and alimony, and for partition of real estate, in which defendant filed cross-bill. From a decree for plaintiff, de

prove, beyond a reasonable doubt, either the insolvency of the bank or the defendants' knowledge of such insolvency. The discussion in the opinion in the former case of the facts and of the errors in the trial of that case is applicable to this case. The differences in the two records do not affect the fendant appeals. Reversed and remanded, merits of the judgments rendered.

For the reasons given in the opinion in the previous case, the judgment in this case is reversed and the cause remanded for a new trial.

Reversed and remanded.

(C30 III. 74)

CRYSLER v. CRYSLER. (No. 18475.) Supreme Court of Illinois. April 21, 1928. 1. Marriage 40(1)-When marriage is shown, law raises presumption in favor of its validity.

When marriage is shown, law raises strong presumption in favor of its legality, and burden is on party objecting to its validity to prove such facts and circumstances as establish its invalidity.

2. Marriage 50(1)-Evidence held to show plaintiff was not defendant's wife because of former marriage, though evidence showed former husband was previously married.

In suit for divorce and alimony and for partition of real estate, evidence held to show that plaintiff was not defendant's wife, where it appeared that she married F. and lived with him as his wife until day she married defendant,

.with directions.

T. Fred Laramie, of Chicago, for appellant. Matilda Fenburg, of Chicago (Jacob G. Grossberg, of Chicago, of counsel), for appellee.

THOMPSON, J. Appellee, Eva M. Crysler, filed in the superior court of Cook county her bill for divorce and alimony and for partition of certain real estate held in joint tenancy, alleging as her ground for divorce extreme and repeated cruelty on the part of appellant. The latter answered the bill, denying that appellee was his wife, that he was guilty of any of the charges of cruelty, or that she had any interest in the real estate. By leave of court he filed a cross-bill, in which he alleged that he was the owner in fee simple of the property, the record title to which stood in the names of appellee and appellant as joint tenants; that he paid for the property with his own funds; and that in consideration of her returning to his home and remaining there as his wife he permitted the conveyance to appellee and himself as joint tenants. He asks that a decree be entered finding that appellee holds title to an interest in the property in trust and that she be required to convey the same to him. Appellee answered the cross-bill, denying that

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
161 N.E.-7

she holds the interest in the real estate in trust, and alleging that title was taken in the parties as joint tenants, because they were husband and wife. There was a hearing before the court, and a decree was entered, finding that appellee and appellant were husband and wife, granting the divorce to appellee, awarding her a one-half interest in the real estate, and directing appellant to pay her an additional sum of $700 for solicitor's fees and the sum of $25 a week for permanent alimony. This appeal followed. Appellant and appellee were first married August 18, 1921. She lived with him until April 30, 1922, when she left him and filed a bill for divorce. There was no contest, and a decree was entered June 14. Appellant was infatuated with her, and immediately began negotiations to get her to return to him. She accepted substantial sums of money from him from time to time. During Feb ruary, March, and April, 1923, she accepted from him a total of $880, the last amount which she obtained being $200, the day she left for St. Louis to marry T. C. Farren. She was married to Farren on May 1, 1923, and lived with him as his wife until February 26, 1924, when she left him and returned to Chicago, where she married appellant the following day. Appellant did not know she had been married to Farren, and she claims that she discovered, a few days before she left Farren, that he had a wife living, so that her own marriage with him was void. She lived with appellant until April 28, 1926, when she finally left him.

[1, 2] The first question which is presented for decision is whether appellee is the lawful wife of appellant. When a marriage is shown, the law raises a strong presumption in favor of its legality, and the burden is on the party objecting to its validity to prove such facts and circumstances as establish its invalidity. Potter v. Clapp, 203 Ill. 592, 68 N. E. 81, 96 Am. St. Rep. 322; Jones v. Gilbert, 135 Ill. 27, 25 N. E. 566; Johnson v. Johnson, 114 Ill. 611, 3 N. E. 232, 55 Am. Rep. 883. It is admitted that appellee married Farren in St. Louis in 1923, and the evidence shows she lived with him as his wife until the day she married appellant the second time, in 1924. This situation warrants the conclusion that that marriage relation continued and had not been dissolved. If appellee had a living husband when she went through the marriage ceremony with appellant in 1924 she did not become his lawful wife at that time. She attempts to meet this conclusion by showing that Farren had a wife living at the time he married her in 1923 and so she was never lawfully married to him. It does appear from the record that Farren was married before he married appellee, but it does not appear that that marriage had not been dissolved prior to his marriage to ap

shows that appellee was not capable of contracting a lawful marriage February 27, 1924, and that she is therefore not the wife of appellant. This conclusion is supported by many decisions of this court. Cartwright v. McGown, 121 Ill. 388, 12 N. E. 737, 2 Am. St. Rep. 105; Schmisscur v. Beatrie, 147 Ill. 210, 35 N. E. 525; Cole v. Cole, 153 Ill. 585, 38 N. E. 703; Hoch y. People, 219 Ill. 265, 76 N. E. 356, 109 Am. St. Rep. 327.

[3, 4] Appellant is a mason contractor, specializing in setting boilers, and has an annual gross income of less than $5,000. Appellee is less than half his age, and from the time he first met her, in 1921, has taken advantage of his infatuation for her. She was then the mother of an illegitimate child, born in 1919, which she represented to him was the child of a former husband, who was dead. Shortly after she left him in 1926, she began to ask him for money, and finally, in September, secured from him $2,230, which was all the cash he had on hand. He says he was undertaking to effect a reconciliation, and she reprepresented to him that she owed her mother $1,000 and many other bills, which she had to pay.

Her mother testified that appellee owed her nothing and that she did not pay any part of the money to her. On May 1, 1926, a deed was executed conveying the residence property to appellant and appellee as joint tenants. This was all the real estate appellant owned, and it had been purchased by him on contract April 2, 1924, at a price of $13,500. All the money that has been paid under this contract has been paid by appellant. Appellee claims appellant gave her a half interest in the property, but he testifies that the deed was made in consideration of her returning to his home and resuming the marital relations. Where the husband purchases real estate, and the title to the property, or an interest therein, is taken in the name of the wife, there is a presumption that the husband intended a gift to his wife. But this presumption may be rebutted. Partridge v. Berliner, 325 Ill. 253, 156 N. E. 352. Consideration of the record in this case shows clearly that appellant did not intend to give ap pellee a half interest in this property, except on condition that she return to him and assume her duties as a housewife. It is also clear from the evidence that she never intended to carry out this agreement, and that she used the advantage she had over appellant to secure from him his money and his property. On this record it should be held that appellee holds the title to an interest in this real estate as trustee, and that appellant is entitled to have a reconveyance to him.

The decree is reversed, and the cause is remanded to the superior court of Cook county, with directions to dismiss the bill for want of equity, and to grant the prayer of the cross-bill.

(330 Ill. 106)

(161 N.E.)

MCGREGOR v. KEUN. (No. 16755.) Supreme Court of Illinois. April 21, 1928.

1. Deeds 211(1)—Evidence held insufficient to establish aged grantor's mental incompetency to execute deeds.

In suit to set aside deeds of aged grantor to her son on ground of her mental incompetency on account of senile dementia, evidence held insufficient to warrant finding of her incompetency.

2. Equity 381-Question of grantor's mental competency to execute deed is for chancellor, jury's verdict being merely advisory.

Suit to set aside a deed on ground of grantor's mental incompetency is purely equitable, and question of grantor's competency is for chancellor, and jury's verdict is not binding on court, but is merely advisory.

3. Wills 318(3)-Jury's verdict in will contest on ground of testator's incompetency is binding on court, in absence of error and unless against weight of evidence.

Procedure in will contest on the ground of testator's mental incompetency is governed by legal principles so far as the jury trial is involved, and jury's verdict is binding on the court if error has not intervened or verdict clearly against weight of evidence.

4. Insane persons 26-Finding of grantor's mental incompetency at inquest several months after executing deeds related only to her mental condition at that time.

Where aged grantor was adjudged to be mentally incompetent at inquest in probate court several months after making of deeds, such finding could relate only to her mental condition at that time.

5. Estoppel 94(1)-Children who permitted aged mother to mortgage property, knowing of her alleged incompetency, held estopped to assert such incompetency in suit to cancel deeds to son.

Where children permitted their aged mother to mortgage her property with knowledge of her alleged mental incompetency, they were estopped to assert her mental incompetency in suit to cancel deeds conveying property to her son, notwithstanding their claim that they acquiesced in mortgage because of necessity of procuring money to take care of their aged and invalid father, in application of clean hands' maxim.

6. Deeds 196(1)—Burden of proof was on complainant seeking to set aside deeds because of grantor's mental incompetency.

In suit to cancel deeds on ground that aged grantor was not mentally competent to execute deeds, burden of proof was on complainant.

7. Deeds 203-Grantor's declarations as to purpose of making deeds held relevant to issue of her mental competency.

In suit to set aside deeds on ground of aged grantor's mental incapacity, grantor's declarations as to her purpose in making them held relevant to issue.

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CROW, C. This cause comes by appeal from a decree of the circuit court of Cook county setting aside two deeds executed by Christiana Keun to her son, Lawrence Keun, appellant, on the ground of her mental incompetence to execute them. The first deed, conveying part of the property, consisting of lots in Chicago, was executed January 25, 1922. The second was executed February 18, 1922, conveying the remainder of the lots. Both conveyances were warranty deeds. The latter deed was made subject to a mortgage executed by the grantor securing the payment of a promissory note for $1,000. The first deed recited a consideration of $10; the second, $1 "and other good and valuable considerations."

The grounds for setting aside the conveyances were that at the time of their execution, and for some time previous thereto, Christiana Keun was of extremely old age and suffering from an advanced stage of senile dementia, "completely disoriented," and suffering from complete loss of memory both as to recent and past events, wholly without memory, and absolutely incompetent to discuss any affairs involving business judgment or reason; that her state of mind was so unbalanced that she did not know that the so-called warranty deeds which she was signing were, in fact, warranty deeds which transferred the ownership of her property to her son Lawrence, but was led to believe that they were papers which had something to do with the settlement of her deceased husband's estate and which would secure her rights in

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