source: Caselaw Access Project

author: Mr. Justice Mulkey

license: Public Domain

text:
    Joseph T. Torrence v. Susan M. Shedd et al.

      Filed at Ottawa September 27, 1884

      Rehearing denied March Term, 1885.

    1. Champerty—of the essential elements to constitute champerty. There are two essential elements in every champertous agreement,—that is, first, there must be an undertaking by one person to defray the expenses, in whole or in part, of another’s suit; and second, an agreement or promise on the part of the latter to divide with the former the proceeds of the litigation in the event it proves successful.
    2. Same —the particular case. In a case of an absolute sale and transfer of an undivided interest which the grantor has or may afterward acquire in land in the adverse possession of others, the grantor having no suits pending to recover his interest or any part of it, under an agreement that the grantee shall institute legal proceedings in his own name and at his own expense, for the purpose of recovering and establishing the title of the, grantor so conveyed, no part of which is to be divided between them, but by which agreement the grantee is to pay a given price per acre of the land recovered, and nothing if the litigation proves unsuccessful, it was held, that both the essential elements to a champertous agreement were wanting, and that the transaction was not void for champerty.
    3. A party owning an interest in land held and claimed adversely, may sell the same for a consideration to be paid upon a contingency, as, upon a recovery of the land by the grantee. The owner may convey his interest in land even Without any compensation, present or prospective, and he may contract to receive nothing in case his interest can not be legally established so that the purchaser may recover the same.
    4. Same—when and between whom the question of champerty may arise. If a conveyance of an undivided interest in land in the adverse possession of others is made under a champertous agreement, the adverse claimants .can not avail of the champerty as a defence to a proceeding by the grantee for a partition. The question of champerty can not properly arise except in a controversy between the parties to the alleged champertous agreement, or their privies.
    5. Conveyances—construction of deed in connection with contemporaneous contract. Where a deed for land is given, and at the same time a written contract between the parties, grantor and grantee, is entered into relating to the same subject matter, and providing for the consideration to be paid, and upon what contingency, they will be treated, in arriving at the intentions of the parties, as but parts of the same transaction, and receive the same construction as if their several provisions were embodied in one and the same instrument.
    6. Same—deed construed—of its effect as to after acquired title. A quitclaim deed contained the following language, in substance: That the grantee “has remised, released, etc., and by these presents does remise, release, alien, confirm, convey and forever quitclaim, all title which said party of the first part has in and to the following described lot, etc., situate, etc., to-wit, in such manner as he may and to the extent that he has heretofore acquired title thereto, the north quarter of,” etc.: Held, that such deed passed only the grantor’s interest in the land at the time of its delivery, and not any further interest he might thereafter acquire. The words, “in such manner as he may,” had reference to the grantor’s power to convey, or his authority to convey, and did not indicate an intention that his deed should become operative and effective as to any additional interest in the land he might afterward acquire.
    7. Ratification of unauthorized acts of agent. The collection of a small portion of rents due from a tenant under a lease, after knowledge of the malting of an unauthorized contract by the lessor’s agent, is not a ratification of such contract for the sale of the lands; nor is the retention of the possession of the leased property obtained under such agent’s contract, where the lessor had the right to declare a forfeiture and take forcible possession of the demised premises.
    Appeal from the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.
    Mr. Charles M. Osborn, and Mr. Gwynn Garnett, for the appellant:
    Onahan had no authority to make the contract of January 29,1876. His only power was to collect rents and take steps for the forfeiture of the lease. But even if authorized, Bowen had failed to perform his part of the same, and had no right to insist on the same, or have a specific performance, and the acts of Sorin, relied on, do not .show any ratification of that contract.
    The quitclaim deed of Sorin to Bowen was limited to the interest the grantor then had, and shows no intention to pass any after acquired title. The only ambiguity arises in the construction of the words, “in such manner as he may and to the Extent that he has heretofore acquired title thereto.” The word “may” is used in its potential sense, and the phrase means, “in such manner as he has power to convey. ”
    That the conveyance and contract of Sorin with the complainant are' not ehampertous, see the following authorities: Thompson v. Reynolds, 73 Ill. 13; Fetrow v. Merriwether, 53 id. 275; Gilbert v. Holmes, 64 id. 548; Coleman v. Billings, 89 id. 187; Campbell v. Evarts, 47 Texas, 102; Wellech v. Roberts, 4 Dana, 172; Ramsey v. Trent, 10 B. Mon. 336; Evans v. Bell, 6 Dana, 479; Scabey v. Ross, 13 Ind. 117; Sedgwick v. Stanton, 4 Kern. 389.
    But if the transaction was ehampertous, it was no defence to the suit, nor gave the defendants any rights. Boone v. Clules, 10 Pet. 219; Coleman v. Billings, 89 Ill. 187; Cartwright v. Barnes, 13 Fed. Rep. 326, sec. 4 of note; Hillon v. Woods, L. R. 4 Eq. 432; Knight v. Bowyer, 2 DeG. & J. 444.
    Mr. Frederick Ullman, Messrs. Judd & Whitehouse, and Mr. Wm. B. Gibbs, for the appellees:
    Under the conveyance from Sorin to Bowen, the title subsequently acquired by Sorin has inured to the benefit of Bow.en’s. grantees.
    If the meaning of a deed is ambiguous or uncertain, it will be construed most strongly- against the grantor. City of Alton v. Transportation Co. 12 Ill. 38.
    If there was- no covenant in this deed, yet, under and by virtue of the Onahan contract, the title subsequently acquired by Sorin has inured-to the benefit of Bowen’s grantees.
    Sorin having availed- himself of the benefits of that contract, would be estopped from saying Onahan had no authority to make it, and -those claiming under him are also estopped.
    Complainant’s title is founded upon champerty, and this suit is purely one of speculation, and can not be maintained in equity. As to definition of champerty, see Coke on Little-ton, 368 b; 1 Hawkins’ Pleas of the Crown, chap. 27, sec. 7; 2 Chitty on Contracts, (11th Am. ed.) 996; 4 Blackstone’s Com. 135.
    It is not necessary that either party should be an attorney. Hayney v. Coyne, 10 Heisk. 341; Barker v. Barker, 14 Wis. 131; Gilbert v. Holmes, 64 Ill. 556; Burke v. Green, 2 B. & B. 520.
    The fact that the Sorin-Torrence contract does not, in express terms, bind Torrence absolutely to carry on any particular suit, or, indeed, any suit at all, will not relieve the bargain of its champertous features. Ball v. Warwick, L. J. 50 Q. B. 382; Hutley v. Hutley, L. R. 8 Q. B. 112; Stanley v. Jones, 7 Bing. 369.
    To constitute champerty it is not necessary that the contract should call for a division of, or payment out of, the land itself. A division of the proceeds of the land recovered by the suit will suffice to vitiate the contract. To maintain to have part of the land, or anything out of the land, or part of the debt, or other thing in suit, is champerty. Coke on Littleton, 368 b.
    But even though the case at bar may not disclose a case of champerty strictly and in all respects within the common law definition of that offence, (though we utterly fail to see what is the lacking element, if any there be,) yet a title resting upon such .a basis as appellant’s, will not be recognized or enforced in a court of equity. Prosser v. Edmunds, 1 Y. & C. 481; Gilbert v. Holmes, 64 Ill. 556; Wood v. Downs, 18 Ves. *126; Burke v. Green, 2 B. & B. 522; Cowry v. Caulfield, id. 268; Strachan v. Bradner, 1 Eden, 224; Powell v. Knowler, 2 Atk. 224; Reynell v. Spry, 8 Hare, 222.
    If it appears the suit, in its origin or progress, is affected by champerty, the court will dismiss the same. Webb v. Armstrong, 5 Humph. 381; Morrison v. Deaderick, 10 id. 342; Hunt v. Lyle, 8 Yerg. 142; Vincent v. Ashley, 5 Humph. 593; Weedon v. Wallace, Meigs, 286; Greenman v. Cohn, 61 Ind. 201; Barker v. Barker, 14 Wis. 131.
   Mr. Justice Mulkey

delivered the opinion of the Court:

This is an appeal from a decree of the Superior Court of Gook county, rendered in a partition suit commenced by Joseph T. Torrence, the appellant, against the appellees, Susan M. Shedd and others.

The suit involves the title to an undivided third of Bowen’s addition to South Chicago, which is now occupied with family residences, shops, stores, manufacturing and business establishments of all kinds, the owners of which are all made parties to the bill. The land in controversy is a part of fractional section 7, township 37, north, range 15, east, and south of the Indian boundary line, the whole of which originally belonged to Louis Be Seille, through whom all parties claim. Louis De Seille died intestate in 1837, leaving his sister, Melanie, and his two brothers, Charles and Edward, and another sister, who subsequently died intestate without issue, his only heirs. Melanie, Charles and Edward thus by inheritance became owners as tenants in common of the entire section, each having an undivided third interest therein. Prior to 1870, Charles died intestate, leaving nine children, who succeeded to his interest in the land, two of whom having died without issue, their interest devolved upon the surviving seven. On the 22d-of August, 1870, six of these children, and their aunt, Melanie, by quitclaim deed conveyed their several interests in the premises to Edward Sorin, whereby he acquired thirteen twenty-firsts of the tract, leaving in the remaining seventh child of Charles (now known as Madame Vandersteichele) one twenty-first of the land, which she subsequently, on the 22d of January, 1873, by warranty deed, conveyed to Sorin. These deeds to Sorin were respectively recorded, in the order of their dates, on the 14th of July, 1871, and the 21st of February, 1874. The real owners of this land, up to the time of the execution of these deeds, had never taken possession of it, and it appears, from 1860 to 1868 or 1870, it was in part occupied by mere squatters, who, so far as we can see, had not the shadow of a title to it. Nevertheless, Elliott Anthony, acting for himself and James H. Bowen, as is said, on the 6th of August, 1868, took from one of these squatters, by the name of Thurston, a quitclaim deed in his own name for the whole of the section. On the 25th of April, 1871, Bowen, claiming to have an interest in the land, entered into an arrangement with Sorin, by which the.latter was to quitclaim to him the north quarter, and Bowen was to quitclaim to Sorin the remaining three-quarters, and this - was accordingly done, -the deeds being both recorded on the 29th of July, 1871. The result of this transaction was to give Bowen a good title of record to two-thirds of the north quarter, less the one twenty-first of it held by Madame Vandersteiehele. Sorin, of course, took nothing by Bowen’s deed, as the latter had nothing to convey, hence Sorin’s interest in the south three-quarters remained just the same as before, namely, a two-thirds interest, less the small proportion owned by Mrs. Vandersteiehele, just mentioned. Bowen having acquired the interest just stated, in the north quarter, assumed exclusive control over it. In the fall of 1873 he conveyed it in trust to secure a loan of $75,000, and in 1875 he again conveyed it in trust to secure an additional loan of $50,000. The property was sold under both trust deeds, to John G. Haines, and deeds were executed to-i him by Smith, the trustee, and were duly recorded on the 6th of September, 1876. The property was purchased by Haines, as president of the Fidelity Savings Bank, he having no personal interest in the purchase. Previous to these transactions, and only a few months after the interchange of deeds between Bowen and Sorin, in April, 1871, as above stated, Sorin leased to Bowen the south three-quarters of the section, at an annual rental of $5000 for the first five years, and of $10,000 a year thereafter. The rent under this lease having become largely in arrear, Sorin, in 1875, being about to go to Europe, executed to William J. Onahan a power of attorney, by which he gave the latter, full power and control over the property in question during his absence, for the purpose of making leases, collecting rents, etc., particularly that which was due from Bowen. On-the 29th of January, 1876, Onahan, assuming to act under this power of attorney, executed to Bowen, in Sorin’s name, an instrument in writing’ whereby Sorin promised and agreed, in substance, that should he thereafter, by deed or release, obtain a greater or better title to said north quarter, he would, by further assurances, or deed or deeds, convey the same to Bowen. This contract on the same day was assigned to Haines, as president of the Fidelity Savings Bank. In 1877, the Fidelity Savings Bank having become insolvent, upon a bill filed for the purpose of winding up its affairs, Virginias A. Turpin was appointed receiver of all its property and effects, and upon the order of the court, John G. Haines conveyed to Tulpin all his interest in the property in dispute, and which he had purchased at the trustee’s sale, as above stated, the -deed bearing date February 15, 1878, and was recorded on the 23d of the same month. Haines also assigned to Turpin the contract executed by Onahan to Bowen under the power of attorney from Sorin, above mentioned, and this contract was exhibited to purchasers by the receiver in making sales of the property, as a muniment of title. In 1876; and before the sales by Smith under the trust deeds, Bowen made out, acknowledged, and caused to be-recorded, a plat of this -property, entitled, “James H. Bowen’s addition to South Chicago,” most of which was sold to various parties, in lots and blocks, after it passed into the hands of the receiver. While these transactions were going on, it was evidently generally known there was an outstanding interest in this property which had not been formally secured by Bowen, or Sorin, through whom Bowen claimed, the exact character and extent of which were well known to both of them, and doubtless many others. Edward De Seille,- the owner of this outstanding one-third interest, was a resident of Europe, and was reputed to he insane, by reason of which it seems to have been understood his interest in the property could not be acquired until after his decease.

It is clear the facts thus far stated show title in Bowen, and those claiming through him, to but two-thirds of the north quarter of this land, less one twenty-first part thereof, and that the remaining third interest continued in Edward De Seille till the time of his death, (which occurred at his home, in Europe, November 17, 1878,) when the same devolved on his heirs. On the 6th of March, 1879, Melanie De Seille conveyed to Sorin, by warranty deed, the entire section in question, which, of course, passed to him one-half of the third interest therein which she inherited from her brother Edward at the time of his decease. Such being the condition of the title, Sorin, by quitclaim deed bearing date January 12,1880, for the expressed consideration of $12,000, conveyed to the appellant all the interest he then owned, or might thereafter acquire, in the said north quarter of said section. As a matter of fact, the $5000 mentioned as the consideration of the conveyance was not paid as therein stated. The real consideration appears from the following agreement, which was entered into at or about the time of the delivery of the deed:

“Whereas, the Bev.- Edward Sorin has conveyed to the undersigned, Joseph T. Torrence, the north quarter of section 7, south of the Indian boundary line, in township 37, north, range 15, east of the third principal meridian, in Cook county, Illinois, the interest so conveyed being an undivided interest in said premises; and whereas, legal proceedings will be necessary to establish title to any interest under said .deed; and whereas, the consideration mentioned in said deed is merely formal, and not the real consideration, but the real consideration is hereinafter in this contract mentioned: Therefore, said Torrence agrees with said Sorin to pay to him, said Sorin, the sum of $400 for each and every acre of land which he, the said Torrence, may recover of the tract of land above described under said deed, through and by legal proceedings, negotiations, compromises, or otherwise.
“Witness the hand and seal of said Torrence, this 29th day of January, 1881.
Joseph T. Torrence, [Seal.]
E. Sorin. [Seal.] ”

Shortly afterwards, the parties thereto executed the following explanatory and supplementary agreement:

“It must be remembered that General Torrence promises to settle the cases of the Shedd Brothers and Taylor, and also that when the one-quarter north of .section 7 should be settled with the Fidelity Bank, he would fix, himself, in justice and honor, what is coming to me over and above the nominal, or not real and final, sum of $400 per acre', taking into account all the expenses that had been made to secure the return of the number of acres recovered.
“Notre Dame, February 18, 1881.
E. Sorin,
J. T. Torrence.”

After the execution of the above deed to appellant, and the agreement and supplementary agreement between him and Sorin, just recited, the latter acquired, by purchase from the children of Charles De Seille, the remaining heirs of Edward De Seille, all their interest in the section above mentioned, which appellant claims inured to him by virtue of Sorin’s deed of the 12th of January, 1880, above mentioned.

The court below, upon the hearing, entered a decree dismissing the bill, holding, first, that the deed and contract between Sorin and complainant were champertous and -void; and second, that by virtue of Sorin’s deed to Bowen, of the 25th of April, 1871, above mentioned, complainant is estopped from setting up title to the land in question.

We do not think the decree can be sustained on either of these grounds. With respect to the first, little need be said. It is true, as contended by appellees, the deed from Sorin to appellant, and the contemporaneous contract between them relating to the same subject matter, must be treated as but parts of the same transaction, and consequently should receive the same construction as if their several provisions were embodied in the same instrument. Viewed in this light, we fail to discover anything that warrants the conclusion the agreement was or is champertous. Blackstone, in his Commentaries, (vol. 4, page 135,) defines champerty to be “a bargain with a plaintiff or defendant campum partiré, to divide the land or other matter sued for, between them, if they prevail at law, whereupon the champerter is to carry on the parties’ own suit at his own expense. ” This definition is adopted by Chitty, in his work on Contracts, page 745. Benjamin on Sales, (section 528,) defines it to be “a bargain by which a person agrees to carry on a suit, at his own expense, for the recovery of another’s property, on condition of dividing the proceeds.”

It will be perceived from these definitions, which are substantially the same, there are two essential elements in every champertous agreement: First, there must be an undertaking by one person to defray the expenses, in whole or in part, of another’s suit; and second, an engagement or promise on the part of the latter to divide with the former the proceeds of the litigation, in the event it proves successful. We fail to discover either of these elements in the case before us. As we understand the transaction, there was an absolute sale and transfer by Sorin to Torrence of the undivided interest which the former then had or might thereafter acquire in the land. The land was then in the adverse possession of others, Bowen and his grantees having the legal as well as the equitable title to two-thirds of it, less the small interest of Madame Vandersteichele,.as already shown. On the de,ath of Edward De Seille, (November 17, 1878,) his third interest passed by inheritance to the seven surviving children of his brother Charles, and his sister Melanie,—the latter taking one-half, being a sixth of the whole tract. On the 6th of March, 1879, she, as we have already seen, conveyed the entire section, by warranty deed, to Sorin, which conveyance, of course, passed to him her one-sixth interest in the whole tract. Assuming this sixth interest did not pass by way of estoppel to Bowen and- his grantees, as is claimed by them, (a question we will presently consider,) Sorin continued to be the owner of it until the time of his conveyance to Torrence, when it passed to the latter. .The remaining half of Edward’s third, or one-sixth of the tract, was then outstanding in the seven children of Charles, which, in view of Sorin’s relations to them, the parties doubtless expected he would be able to obtain from them, by way of compromise, or otherwise, on easy terms. Sorin, at this time, had no suit pending for the recovery of this land, or any part of it, nor did the agreement between them contemplate the commencement of any such suit by him. The agreement, however, did contemplate legal proceedings to be commenced and carried on by Torrence, for the purpose of recovering and establishing title in the latter to the one-third interest in the land, but no part of this interest, when so recovered or established, was to be divided between him and Sorin. If the prosecution of suits were necessary for the recovery of this interest in the land, they were, so far as. this record shows, to be instituted and prosecuted by Torrence, at his own expense, and the land, when recovered, if recovered at all, was to be his, and his alone,—thus clearly showing an entire absence of both the elements essential to a champertous. agreement. It is true the consideration to be paid by Torrence was graduated, by the number of acres he should succeed in recovering in the manner proposed. Sorin was to have $400 an acre for the land' actually recovered or secured, and if nothing was recovered or secured, of course he was to receive nothing. In other words, the .consideration to be paid for the land was made to depend upon a contingency,—a thing, we have no doubt, the parties had a. perfect right to do. The amount of compensation which Sorin was to receive for the interest in the land conveyed by him to Torrence, is, under the facts in this case, a matter with which appellees have no concern. If Sorin had conveyed to Torrence without any consideration, present or prospective, it would in nowise have strengthened the position of appellees. But even conceding the agreement to be champertous, we do not think appellees can avail themselves of it as a defence to this suit. While the cases are hot all in accord on this question, we think the decided weight of authority sustains the position that champerty can not be made available as a defence in a mere collateral proceeding, as is sought to be done here. Fetrow v. Merrwether, 53 Ill. 275; Boone v. Clules, 10 Pet. 219; Hillon v. Woods, L. R. 4 Eq. 432; Knight v. Bowyer, 2 DeG. & J. 444; Coleman v. Billings, 89 Ill. 187. This question can not properly arise except in a controversy between the parties to the alleged champertous agreement, or their privies.

We come now to the second ground of the decision of the court below,—namely, that Sorin, and those claiming under him, (which, of course, includes appellant,) are, by virtue of the deed of the former to Bowen of the 25th of April, 1871, estopped from setting up title to the land in controversy. That deed is shown to be lost, and the record thereof destroyed by the great Chicago fire of 1871. We agree with appellees that the most satisfactory proof of its contents is found in the testimony of Franklin L. Chase, who saw the deed and appears to have preserved a copy of it. The deed in question'was prepared from a printed form of an old fashioned quitclaim deed. The copy taken by Chase shows the erasure of certain words in the written as well as printed parts of the deed. The material part of the deed, as shown by this witness, so far as the present question is concerned, is as follows:

“Has remised, released, aliened, confirmed, conveyed forevor qu-iteíéúmcd, and by these presents does remise, release, alien, confirm, convey and forever quitclaim, all right, title, interest, efeti-m and demand which said party of the,first part has in and to the following described lot, piece or parcel of land, situated in Cook county, Illinois, to-wit: In such manner as he may, and to the extent that he has heretofore acquired title thereto, the north quarter of fractional section 7, south of the Indian boundary line, in township 37, 15, and all the estate, right, title, interest, claim and, demand whatsoever of the party of the first part, to the only proper use, benefit and behoof of the said party of the second part, forever.

The contention of appellees is, and so the court below held, that by the terms of this deed Sorin not only conveyed to Bowen his present interest in the land, but that it was his intention, as well as that of the grantee, that the deed should become operative and effective as to any additional interest in the land Sorin might subsequently acquire, and hence it is further claimed that Sorin and those claiming under him are estopped from setting up any claim to it. This conclusion is drawn solely from the expression in the deed; “in such manner as he may,” the contention being, the phrase is elliptical, and that to make it complete, the word acquire should be added after the word “may, ”—that is, “in such manner as he may” acquire. We think the manifest grammatical as well as logical relation which the expression, “in such manner as he may, ” bears to the other members of the sentence in which it occurs, is inconsistent with the construction contended for by appellees. It is evident the expression, grammatically, refers to and qualifies the verbs, “has remised, ” has “released,” etc.,—that is, the grantor has remised, released, etc., the premises “in such manner as he may,”—or, in other words, in such manner as he is authorized to. To say that one “has remised, released, etc., in such manner as he may acquire, or may hereafter acquire,” is certainly not very perspicuous English, and we perceive no reason for adopting so questionable a construction. The phrase under consideration is certainly an unusual one to be found in a deed, but in the light of the record before us, its use in the connection mentioned is neither strange nor inappropriate. Sorin was a Catholic priest, and belonged to one of the orders of that church, and his official title was that of “Superior General of the Congregation of the Holy Cross, ” and he is so characterized in conveyances made by and to him in respect to this very land, including the deed now under consideration. Whether, by the rules of the order of which he was “superior general, ” there were any limitations upon his power to dispose of real property, does not fully appear, but from the circumstances stated it is highly probable the expression, “in such manner as he may,” had reference to something of that character. At any rate, we think it very clear the word “may” is used, in that connection, in its potential sense, and has a direct reference to the grantor’s power or authority to convey.

With respect to the Onahan contract, it is not seriously contended, if at all, that it was authorized by the power of attorney held by him of Sorin, and we fail to perceive anything in his conduct, after he had knowledge of its execution, that can be regarded as a ratification of it, or that estops him, or those claiming under him, from asserting their title to the property in controversy. At the time of making the Onahan contract, Bowen was, as we have already seen, in arrears for rent, under his lease from Sorin of the south three-quarters of the section, in the sum of $28,000, and it is claimed that because Sorin collected a small portion of this sum from Bowen’s assignee in bankruptcy after having notice Qf the Onahan contract, he thereby ratified it. We do not think there is any force in this position. Nor do we think the fact that Sorin obtained possession of the leasehold premises by means of the Onahan contract, and failed to restore the premises after notice of the existence of the contract, can be treated as a ratification of it. Bowen had wholly failed to perform any of the conditions of the lease, and, as just stated, at the date of the contract was $28,000 in arrears, having never paid anything under the lease, and Sorin was then, by its very terms, authorized to declare a forfeiture, and take forcible possession of the leased premises. In fact, Bowen had become bankrupt, and forfeited all his rights under the lease, and Sorin, in taking possession, did nothing more than he was-entitled to, without any consent- or permission-on the part of Bowen. Under the circumstances, Sorin had the right to take possession, and his doing so did not forfeit his right to the rent then in arrears.

The decree of the Superior Court is reversed, and the cause remanded for further proceedings in conformity with this opinion.

Decree reversed.

Mr. Justice Scott : I do not concur in this opinion. -

Subsequently, upon, an application for a rehearing, the following additional opinion was filed:

Per Curiam : It is contended in the original argument, as well as in the petition for a rehearing, among other things, first, that the Onahan contract of the 29th of January, 1876, was binding upon Sorin, and that appellant is consequently concluded by it; second, that the deed and contract between Torrence and Sorin of the 29th of January,.1881, are champertous and void; and third, that by virtue of Sorin’s deed to Bowen of the 25th of April, 1871, appellant is estopped from setting up title to the land in question. We have carefully reconsidered these positions,- and after having availed ourselves of all the additional lights thrown upon the subject by the petition for a rehearing, and given it our best thought, we are fully satisfied that said positions, and each of them, are not tenable, and they must therefore henceforth be regarded as.conclusively settled against appellees. The Superior Court, contrary to the conclusion we have reached, sustained the last , two of these positions, and, in fact, based its decree exclusively upon them, without passing upon other defences interposed by appellees. The opinion heretofore filed in the case, is directed chiefly against the grounds upon which the Superior Court based its decree, and consequently the other questions discussed were regarded of a subordinate character, and were therefore not so thoroughly examined as they otherwise would have been.

Pending the petition for a rehearing, a number of the appellees including those who seem to occupy the most favorable position so far as the defence of the Statute of Limitations is concerned, have filed a written stipulation disclaiming any desire on their part to have a rehearing granted. While, under these circumstances, we do not think it would be proper to grant a rehearing, yet, in view of the importance of the case, and the fact the questions, other than those above specified "and definitely disposed of, were not expressly passed upon by the Superior Court, the remanding order will be so amended as to authorize a reconsideration of those questions. The remanding order in question will therefore be and is now so modified and amended as to leave all questions arising upon the record, except' the three herein disposed of and eliminated from the case, open for further consideration upon the rehearing of the cause in the Superior Court. With this modification of the opinion the rehearing is denied.

Rehearing denied.


author: Mr. Justice Dickey

text:
    Horace A. Hurlbut v. Frederick M. Kantzler et al.

      Filed at Ottawa September 27, 1884.

      1. Specific performance—to compel the assignment of a lease, where the consent of the lessor is a prerequisite to the right. A court of equity will not decree the specific performance of a contract to assign a lease for a term of years, where the lease requires the lessor to erect a building on the premises of not less value than a given sum, and prohibits its assignment except by the written consent of the lessor, where the lessor has failed to give such assent, and has put it out of -his power to do so by accepting a surrender of the lease and the execution of a new one to other parties.
    2. Same—whether damages will be given in lieu of a specific performance—amd whether a trust arises. Where the right of a lessee to assign the lease or transfer his leasehold interest is expressly made to depend upon the written consent of the lessor, a person who contracts with the lessee for such assignment with full knowledge of the inability of the latter to perform his agreement without such consent, and having no legal or equitable right to enforce such consent, will have no right, in a court of equity, to have damages in lieu of a specific performance, or to have other parties acquiring a new lease from the lessor, declared trustees holding for him.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.
    This is a bill for a specific performance, brought in the Superior Court of Cook county by Horace A. Hurlhut, against Frederick M. Kantzler, Daniel F. Crilly, Charles H. Blair, and the Board of Education of the City of Chicago.
    On May 12, 1876, the board of education of the city of Chicago leased to said Kantzler the south eight feet of lot 23, and lots 24, 25, 26 and 27, in block 142, in school section addition to Chicago, for a term of nineteen years, from the 8th day of that month, for the yearly rent of $4100, payable quarterly, with certain provisions for the re-adjustment of the rent every five years, Kantzler to pay all taxes and assessments levied on the premises. ' The lease contained a covenant that it should not he assigned without the consent of the board of education, to be evidenced by a certified copy of the proceedings of the board granting such consent, signed by the president and clerk of the board; and a further covenant, that Kantzler,should,'.within sixteen months from the date of the lease, erect upon the leased premises a building to be worth not less than $40,000. Kantzler had not sufficient means himself, and did not succeed in borrowing the money necessary to erect such building. He continued to pay rent and taxes for over two years, without any return from the premises, sinking about $9000.
    On August 8, 1878, Kantzler gave to Crilly & Blair an option, by a verbal agreement, to take an assignment of such lease for $5000, the offer to be held open till the first day of October, 1878. Eight days after, (August 16,) Kantzler gave to Hurlbut, the complainant, a written agreement, signed by Kantzler alone, to assign the same lease to him upon condition that Hurlbut should pay him $5500 on or before August 30, 1878,—if not so paid, the contract to be void. During the interview between Kantzler and Hurlbut, the latter prepared the following memorandum: “Memorandum of statement as basis of sale of lease by Kantzler to H. A. H., 104 on Dearborn by 120 on Monroe street; school lease to 1895; appraisal every five years; to 1880, rent $4100; no tax on land; F. M. Kantzler owns the lease; has plans and specifications for building; bids for the work; estimate $50,000 under present plans; K. has tenants who will lease for five years; amount $18,000 a year; will agree to furnish these tenants to me, provided I will furnish the building; will sell the lease, furnish plans, specifications and bids; premises free of any incumbrance; rents paid to August 8; for $5500. ” After Kantzler had left, Hurlbut, without Kantzler’s knowledge, wrote.under Kantzler’s signature to the agreement, the words, “Accepted as a contract.—H. A. Hurlbut. ” He also wrote on the paper signed. by Kantzler, and under the words “accepted as a contract, ” etc., these words: “The. additional conditions are on memorandum attached. ” On or about the 29th day of August, 1878, Kantzler gave a verbal assent to extend the time of payment to Hurlbut for three days longer.
    On September' 6, 1878, Crilly & Blair, having learned that Kantzler was negotiating with Hurlbut for the sale .of the-lease to him, went to.Kantzler and insisted that.he should carry out his contract with them. On the next day, Kantz-. ler, having notified Hurlbut that his negotiation with him was at an.end, complied with the request of Crilly & Blair, and reduced to writing the verbal agreement of August - 8, as of that date, which agreement was then accepted, and the acceptance, was signed by the parties, and filed for record-on September 20, 1878. After this; Hurlbut offered, to pay Kantzler the $5500 upon certain conditions, .(about which there is some dispute,) one of which was, that .tenants. should be furnished paying $16,000 a year rent, and that the building could be erected, for from $47,000 to $50,000. No unconditional tender or offer to pay was .made by Hurlbut.
    On September 24, 1878, Kantzler, in pursuance of his contract, assigned his lease to Crilly & Blair, and on the 26th of the same month, Crilly & Blair applied' to the board of education for its consent to such assignment. This was prevented by an injunction, at the suit of Hurlbut. The bill alleged,that Kantzler had informed complainant that he would not makeithe assignment of the lease, but intended to transfer the same to, Crilly & Blair, and an injunction was prayed for, and issued, on the 26th of September, 1878, restraining Crilly & Blair and Kantzler -from procuring the consent of the board of education, and from executing an assignment of the lease to Crilly & Blair. Crilly & Blair and Kantzler answered, admitting that Kantzler, on the day named in the bill, was the owner of the leasehold in.question, and that he contracted with Grilly & Blair for the sale'of the same to them, but -taking issue on the other, allegations of the bill; averring that whatever rights or equities Hurlbut may have had in the premises had been forfeited, and that they had no control over the board of education so as to. compel them to assent to an assignment of said leasehold. The board of education interposed a demurrer, which was sustained, and the bill was afterwards dismissed as to them. . On the 4th of October, 1878, the injunction was dissolved, and nothing was done in- the case during the succeeding two years, and until November 15, 1880, when the complainant filed a supplemental bill against the appellees, averring that Kantzler had, since the commencement of the*suit, surrendered his lease to the board of education, and cancelled, all his right and interest therein, and that the board had accepted the surrender, and executed a new lease to Grilly & Blair, for a term of fifty years, in place of the surrendered lease to Kantzler.
    It is insisted in the supplemental bill that Grilly & Blair are not bona fide lessees; that the surrender by Kantzler of his lease, and the executing by the board of the new lease to Grilly & Blair, were only a method of assigning said Kantz.ler’s lease to them, and that Grilly & Blair, acquiring the said leasehold estate pendente lite, became trustees thereof for appellant. The bill prays that Grilly & Blair be decreed, upon payment or tender to them of $5500, and with-the consent of said board, to assign to Hurlbut said lease, and in default thereof that they be.adjudged trustees for complainant," of said leasehold estate, and that an accounting of the rents and profits be had. On a hearing, .the original and supplemental bills were dismissed by the Superior Court of Cook county for want of equity, and on appeal to the Appellate Court for the First District the decree was affirmed, and the complainant below brings the case to this court on his further appeal. . ' -

      Mr. George Chandler, for the appellant:
    Specific performance of unilateral contracts will be enforced in a court of equity. Mutuality is not in all cases a necessary condition. Pomeroy on Specific Per. page 238, sec. 164; Perkins v. Hadsell, 50 Ill. 216; Estes v. Furlong, 59 id. 300; Smith & Fleeke’s Appeal, 69 Pa. St. 474; Vassault v. Edwards, 43 Cal. 458; Corson v. Mulvaney, 49 Pa. St. 88; Kerr v. Day, 14 id. 112; 1 Story’s Eq. Jur. secs. 715-722; Willard’s Eq. Jur. secs. 267, 268; Maughlin v. Perry, 35 Merr. 352; Homfrey v. Fathergill, L. R. 1 Eq. 567; Bell v. Howard, 9 Mod. 302; Kerr v. Purdy, 50 Barb. 000; Souffrain v. McDonald, 27 Ind. 269; Willard v. Taylor, 8 Wall. 557; Hersey v. Giblett, 18 Beav. 174; Ewins v. Gordon, 49 N. H. 444; Barnard v. Lee, 97 Mass. 92; Jones v. Robinson, 29 Maine, 351; Gordon v. Calvert, 2 Sim. 253.
    Hurlbut was entitled, after the extension of time, to a specific declaration of a forfeiture before his rights could be cut off, and to a reasonable notice before. Waterman on Specific Per. secs. 449, 482; Sharp v. Frimmer, 24 N. J. Eq. 422; Durand v. Page, 11 Wis. 15; Russell v. Mecklenberg, 50 Ala. 476; Duffy v. O'Donovan, 46 N. Y. 223; Wallace v. Pidge, 4 Mich. 570; Bishop v. Newton, 20 Ill. 178; Morgan v. Herrick, 21 id. 498; Wallace v. McLaughlin, 57 id. 57.
    The provision of'-the lease which required the assent of the board of- education to an assignment, is not an obstacle "in the way of specific performance. It was Hurlbut’s right to take what Kantzler could give him. Mertlock v. Buller, 10 Ves. 315; Cleaton v. Gower, Finch, 164; Milligan v. Cook, 16 Ves. 1; Waterman on Specific Per. page 24, sec. 127.
    Kantzler fraudulently obtained a release of his lease, in violation of his contract with Hurlbut, and the present lessees knew of this contract,—therefore -they are trustees for the benefit of Hurlbut. Perry on Trusts, sec. 211; Powell v. Jeffins, 4 Scam. 487; McVey v. McQuality, 97 Ill. 93; Beach v. Dyer, 93 id. 295. See, also, Haughwout v. Murphy, 22 N. J. Eq. 531; Crawford v. Betholf, Sax. 460; King v. Ruckman, 6 C. E. Green, 599; Story v. Lord Windsor, 2 Atk. 631; Murray v. Ballou, 1 Johns. Ch. 566.
    Mr. Daniel L. Shorey, for the appellees Crilly & Blair:
    Specific performance rests in the discretion of the court. Allen v. Woodruff, 96 Ill. 20; Fish v. Leser, 69 id. 394.
    Crilly & Blair do not hold in trust for Hurlbut, and the offer, even if it had been accepted by Hurlbut, could not be specifically enforced without first obtaining the written consent of the lessor.
    Mr. George F. Blanke, for the appellee Kantzler:
    The court will not order specific performance, unless it can execute the whole contract. Fry on Specific Per. sec. 536; Columbine v. Chichester, 2 Phil. 27.
    Application for specific performance is addressed to the sound discretion of the court, and it is not a matter of course .that it will be decreed because a legal contract exists. Frisby v. Balance, 4 Scam. 287; Kimball v. Tooke, 70 Ill. 56; Race v. Weston, 86 id. 91; Hetfield v. Wiley, 105 id. 286; Fry on Specific Per. sec. 233, note 3.
   Mr. Justice Dickey

delivered the opinion of the Court:

Waiving all other objections to the relief sought by appellant in his bill, there is one objection which we regard as fatal to his claim. It is obvious that no effective and valid assignment of this lease could have been made by Kantzler without the consent of the board of education, and the board never did consent to such an assignment to Hurlbut,—and Crilly & Blair can not now assign to Hurlbut without such consent of the board. Kantzler having surrendered his lease, and the board having executed a new one to Crilly & Blair on different terms and running for a much longer time, it has become impossible for the court to specifically enforce the contract. The complainant hag no equities against the board of education,- and no.right, legal or equitable, to require them to consent to the assignment of either of the. leases, in whole or in part. A party leasing has a right to prohibit any assignment-of the.lease without his assent, otherwise he -might have his property occupied by a tenant he would not trust, or by one under no personal covenant to pay the -rent.

In Fry on Specific Performance,-sec. 536, it is said: “The court will not compel specific performance of a contract unless it can execute -the whole- contract. ” In 3 Parsons on Contracts, (7th ed.) 362, the author says: “If one promising to sell land has no title to it, and the buyer knows this, and the seller is unable afterwards to acquire title, a decree (for specific performance) will not be granted, ”—citing Love v. Cobb; 63 N. C. 324. Again, on page 361, he says : “A vendor will not be ordered to make a sale of a- thing, or give a deed of land, when he has no legal title, ”—citing Malden v. Fyson, 9 Beav. 347. In 3 Pomeroy’s Eq. Jur. sec. 1405, the author says: “The contract must be such that its specific enforcement would not be nugatory. * * - * Although the contract, by itself, can be specifically enforced, the defendant must also have the capacity and ability to perform it, by obeying the decree of the court. * * * Finally, the contract must be such that the court is able to make an efficient decree for its specific performance, and is able to enforce its own decree when made.”

There, is no allegation in the bills, or proof, that the consent of the board of education will be given, or ever was given. On the contrary, the proof is that the board refused to consent to the assignment of the original lease to the complainant, and did consent that it might be transferred to Crilly & Blair. If the court can not compel the board to consent to any assignment to complainant, how can it secure the execution of a valid and binding transfer of the lease ? Since the dismissal of the bill as against the board, the court has no pretence of power to make a decree compelling its consent to the transfer of either lease. Hurlbut, at the time he took the contract from Kantzler, knew that the latter could not transfer his leasehold interest without the express consent of a third party, against whom he could claim no rights, legal or equitable, and consequently took his contract under such circumstances as to make its validity and effectiveness depend upon the exercise of the will of another under no obligation to do any act for him or for his benefit. Hurlbut having accepted this contract with a full knowledge of this provision in the lease, can not have damages in a court of chancery in lieu of specific performance, and for the same reason is not entitled to have Grilly & Blair declared to hold as trustees for him.

We think the decree was right. The judgment of the Appellate Court is therefore affirmed.

Judgment affirmed.


author: Mr. Justice Sheldon

text:
    Thomas L. James, Assignee, v. L. Parkman Dexter et al.

      Filed at Ottawa November 17, 1884.

    1. Appeae—from Appellate Court—within what time it must be prayed. An appeal from the Appellate Court to the Supreme Court must be prayed for within twenty days from the rendition of the judgment sought to be reviewed,—and this whether it is prayed for in term time or in vacation. The proviso in section 90 of the Practice act, “that such appeal may be prayed for at any time within twenty days after the rendition of such judgment,” is to' be understood as mandatory as regards the time, not merely directory.
    2. Same—waiver of irregularity in that regard. After the Appellate Court has granted an appeal from its judgment, to the Supreme Court, twenty-two days after the judgment was rendered, the fact that appellee’s counsel were present in the first named court when the appeal bond was filed, and made objection to its wording, can not be regarded as a waiver of the right to have the appeal dismissed as not having been prayed for in proper time. A motion in that court to dismiss the appeal could not have been entertained after allowing the appeal.
    3. Dismissal of appeal—damages. In a proceeding by attachment, judgment was rendered against garnishees, who paid the amount of the judgment into court. On appeal to the Appellate Court, the judgment of the trial court was affirmed. An assignee of the attachment debtor, who had interpleaded in the trial court, against whom there was no money judgment, appealed to this court. On dismissal of the appeal upon the ground it was not prayed in proper time, statutory damages were asked, but as the appeal did not appear tb be frivolous, it was not considered a case for damages.
    4. Construction of statutes — when “may" means “shall." The word “may,” in a statute, means “shall” whenever the rights of the public or third -persons depend upon the exercise- of the power, or the performance ¡of the duty to which it refers. The word has such meaning in the proviso of section 90 of the Practice act.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    This was a proceeding by attachment, instituted in the trial court by the appellees, as creditors of F. Mayer & Co. Garnishee process was served upon persons indebted to Mayer & Co., and judgment rendered against them. The garnishees paid the money into court. Thomas L. James, as assignee of Mayer & Co., and who had interpleaded in the suit, prosecutes this appeal from the Appellate Court, where the judgment of the trial-court had been affirmed.
    Mr. Chas. L. Easton, for the appellant.
    Messrs. Moses & Newman, for the appellees.
   Mr. Justice Sheldon

delivered the opinion of the Court:

A motion is made to dismiss the appeal in this case, for the reason that it was not prayed in proper time.

Section 90 of the Practice act, (Laws of 1877, page 153,) under which the appeal was taken, provides that “any party to such cause shall be permitted to remove the same to the Supreme Court by appeal or writ of error, in the same manner as provided in sections sixty-seven and seventy (67, 70,) of this act for appeals to said Appellate Court: Provided, that such appeal may be prayed for at any time within twenty days after the rendition of such judgment, order or decree, whether such Appellate Court be in session or not; and if such appeal be prayed for in vacation, any one or more judges of such Appellate Court may make and sign all orders necessary for the perfecting of such appeal. ”

The judgment appealed from is a judgment in the Appellate Court, of affirmance. The judgment of affirmance was on May 20, 18S4. No appeal was prayed for until June 11, 1884,—twenty-two days after the order of affirmance was entered. The statute is mandatory, and not directory. The word “may,” means “shall” whenever the rights of the public or of third persons depend upon the exercise of the power, or the performance of the duty to which it refers. (Kane v. Footh, 70 Ill. 587; Fowler v. Pirkins, 77 id. 271.) The words of the statute, then, are very plain that the appeal must be prayed for within twenty days after the rendition of the judgment, which clearly was not done in this case.

As it-is provided in the beginning of section* 90, that a cause may be appealed to the Supreme Court in the same manner as provided in sections 67 and 70 of the act for appeals to the Appellate Court, and section 67 is, that appeals shall be prayed for at the term at which judgment is entered, it is insisted by appellant that the proper construction in this case is, that it is only necessary that the appeal be prayed and allowed at the term at which the judgment is rendered, and that the twenty days’ limitation in section 90 limits the appeal to be prayed for in vacation, within twenty days after the last day of the term at which the judgment was rendered. Manifestly the word “manner,” used in the 90th section, does not comprehend the time of praying for the appeal, as that is specifically provided for in the proviso at the close of the section.. It is the proviso which prescribes the time for the praying of an appeal, and not section 67. Decisions under our earlier statute requiring appeals to be prayed for at the time of rendering the judgment, that that meant at the term at which the judgment was rendered, are referred to as in support of this construction contended for. But we do not regard them as hearing it out. The words here -used, “within twenty days after the rendition of the judgment,” are too explicit to allow of their being construed to mean “at the term” at which, the judgment is rendered, and they being used in purposed variance from “at the term,” in the 67th section.

As the appellees, by, their attorneys, were present when the appeal bond was offered by appellant to be filed in the Appellate Court, and made objection to the wording of the bond, it is claimed that this was a waiver of the irregularity in the time of praying for the appeal. The appeal had already been' allowed by the .court, and any motion for its dismissal would not be in order in the Appellate Court, and we do not perceive that making objection to the bond was a waiver of anything. We are of opinion the motion should be sustained, and the appeal will be dismissed.

Appellees ask that the appeal be dismissed with statutory damages, the judgment below against the garnishees being $2930.95. In this case the money has been paid into court by the garnishees, as by law provided. There is no money judgment against appellant. The appeal does not appear to be frivolous, and we do not regard it as a case for the allowanee of the damages asked for.

Appeal dismissed.