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sonable doubt, and it affirmatively appears that possession was taken under the contract.

[Ed. Note. For other cases, see Specific Performance, Cent. Dig. § 389; Dec. Dig. 121 (2).]

3. SPECIFIC PERFORMANCE ~121(9)—SUFFICIENCY OF EVIDENCE-ORAL CONTRACT.

In a suit for specific performance of an oral contract, evidence as to the terms of the contract and possession thereunder held not sufficient to entitle complainant to the relief asked. [Ed. Note.-For other cases, see Specific Performance, Cent. Dig. § 394; Dec. Dig.

(9).]

121

4. VENDOR AND PURCHASER 35-FRAUDTITLE OF Vendor.

The fact that the title to property was placed in the name of a trustee does not show fraud, where the contract with the purchaser was executed by the real owner in the name of the holder of the title.

[Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. §§ 45-51; Dec. Dig. ♣ 35.]

5. FRAUD 58(1)-PROOF-SUFFICIENCY.

While fraud may be proved by circumstances, it will not be presumed, but must be proved as a fact by such clear and convincing evidence as leaves the mind well satisfied.

[Ed. Note. For other cases, see Fraud, Cent. Dig. § 55; Dec. Dig. 58(1).]

6. SPECIFIC PERFORMANCE 8-RIGHT TO RELIEF DISCRETION OF Court.

Specific performance of a contract cannot be demanded as a matter of right, but rests in the sound discretion of the court, to be determined from all the facts and circumstances of the case, and, if the contract is unreasonable or unjust, it will not be granted.

[Ed. Note. For other cases, see Specific Performance, Cent. Dig. §§ 17, 18; Dec. Dig. 8.] 7. SPECIFIC PERFORMANCE 121(3)-RIGHT TO RELIEF JUSTICE OF CONTRACT.

Specific performance of an oral contract, whereby defendant agreed to take certain land in payment for property conveyed by him, will not be decreed, where the evidence does not satisfactorily show that the land he was to receive had substantial value above the incumbrances

thereon.

[Ed. Note. For other cases, see Specific Performance, Cent. Dig. § 390; Dec. Dig. 121 (3).]

8. SPECIFIC PERFORMANCE 121(11)-RIGHT TO RELIEF PERFORMANCE OF CONDITIONS. Where complainants agreed to purchase a house and lot from defendant for a fixed price, and to convey their farm to him as security by a deed absolute in form, they to have the right to sell the farm for as much as they could and apply the proceeds on the purchase price of the house, they are not entitled to specific performance of the contract for the sale of the house to them because of defendant's failure to convey the farm to a purchaser secured by them, unless the evidence clearly showed that there was a bona fide offer to purchase, from a person able to carry it out, and for a price which would pay for the house and lot.

[Ed. Note. For other cases, see Specific Performance, Cent. Dig. § 395; Dec. Dig. 121 (11).]

9. SPECIFIC PERFORMANCE

-PRAYER.

127(1)-RELIEF

Though the specific relief prayed for in a bill for specific performance cannot be granted, the court can decree such relief as the facts show the parties entitled to, and can make the

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circuit court of Cook county for relief in CARTER, J. This was a bill filed in the a certain transaction involving a contract for warranty deed for a house and lot in Chicago, a deed to a farm in Michigan, and an alleged oral contract concerning the sale of said farm and disposition of the proceeds thereof. Appellant John P. Casey filed a cross-bill. After the pleadings were settled, the cause was referred to a master in chancery, and his report was approved by the trial court over the objections of appellants, and a decree entered dismissing the crossbill and finding in favor of appellees; the costs, including master's and stenographer's fees, being adjudged against appellant Casey.

Appellee Mary K. Wolf, on October 31, 1914, was the owner of eighty acres of farm land in Midland county, Michigan. John P. Casey was the owner of a house and lot in Grove avenue, Chicago. Mrs. Wolf's husband was a bricklayer by trade, and Casey had been in the real estate business, but was desirous of closing out his interests in that line and devoting his whole time to the banking business. In the latter part of October, 1914, he called on the Wolfs with reference to selling to them this house and lot. After various conferences an agreement for warranty. deed was drawn up. This agreement recites: That it is made by Helen Lawrence spinster, party of the first part, and John J. Wolf and Mary K. Wolf, his wife, party of the second part. That, if the second parties will make the payments and perform the covenants mentioned, the first party will convey in fee simple the house and lot in question for $2,500. That the second parties agree to pay the first party in manner following: Fif teen dollars cash in hand, receipt acknowl

edged, and $1,285 in monthly payments of piece of real estate in exchange, but after$15, or as much more as second parties see ward agreed to make an even exchange of fit, beginning December 1, 1914. Second par- the house and lot for the farm, if he found ties to assume a trust deed of $1,200, and the farm was worth it; that she told him she also to pay interest on the amount from would not do that, as the farm was worth time to time remaining unpaid. When $1,300 $3,600 and the house only $2,500; that finalof the purchase price is paid, also all inter-ly it was agreed that he should take the deed est, etc., first party is to deliver deed, sub- for the Michigan farm as security for the ject to said $1,200 trust deed. The contract house and lot; that, if she could sell the also contains the usual clause that, upon the farm for more than $2,500, she should have failure to make payments, it shall be forfeit- the excess over the $2,500, and the $2,500, if ed and determined at the option of the first paid before the 1st of the following May, party, and she may retain the payments should be taken by him in entire payment made in full satisfaction of all damages, etc. for the house and lot on Grove avenue; that This agreement was signed by John P. Casey if Mrs. Wolf or her agent found a buyer, he and both the Wolfs, and the name of Helen would deed the farm to the buyer. She furLawrence was also signed to it. ther testified that on February 23, 1915, she informed Casey that she had a buyer for the Michigan farm, Anna Hoffman, who had paid her $10 as a deposit on the purchase, and that she (Mrs. Wolf) then asked Casey to make the deed to Anna Hoffman and give witness a deed to the house and lot; that Casey then said that she could not sell the farm-that the house was his and the farm was his, and that if she spoke like that again he would put her in jail for 25 years; that she asked Casey three times to make a deed of the farm to Anna Hoffman, but he refused each time. A daughter of Mrs. Wolf testified that she heard this conversation between her mother and Casey as to the deed to the farm to Anna Hoffman, and that Casey refused to deed the farm, and said he would put Mrs. Wolf in jail for 25 years.

The evidence is that Helen Lawrence had been in Casey's employment in a clerical capacity, and that he had placed the title to this and other tracts of land in her name as a convenience in making trades. We understand from the evidence that Casey signed Miss Lawrence's name to this contract, and that, although she had no objection to his so doing, she did not know of it until the latter part of November, 1914, when she signed papers conveying the legal title to this property to Casey. Before that time she understood she held the land as trustee for Casey. At the same time this agreement was executed and delivered, another contract was entered into by them, which reads as follows: "Agreement entered into this thirty-first day of October, 1914, between John P. Casey and John J. Wolf and Mary K. Wolf, his wife, that the said John P. Casey will sell a farm in Michigan for John J. Wolf and Mary K. Wolf as their agent, and the proceeds of said sale to be applied on a certain contract now in force between Helen Lawrence and John J. Wolf and Mary K. Wolf for the purchase of premises No. 5738 Grove avenue. In case said farm should be sold by John J. Wolf and Mary K; Wolf, or any other agent, the proceeds of said sale shall apply on said contract for purchase of premises 5738 Grove avenue.'

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November 11, 1914, the Wolfs, by warranty deed absolute in form, conveyed the Michigan farm to appellant Casey, subject to a mortgage of $1,000 and accrued interest. This deed was placed on file a few days later in the county where the land is situated. Casey, his son James, and Miss Anna Levy, a clerk in his employ, all three testified that these two agreements, dated October 31, 1914, and the deed to the Michigan farm, dated November 11, 1914, were all executed and delivered the same day, November 11, 1914. Appellee and Mrs. Wolf testified that the two agreements were executed and delivered the day they were dated, October 31, 1914, and that the deed to the Michigan farm was executed the day it was dated. We find no other testimony in the record on this point. Mrs. Wolf testified that Casey asked $2,500 for the house and lot on Grove avenue, and that she told him she did not have any cash and wanted to trade her Michigan farm for it; that he said he was getting out of the real estate business, and did not want to take another

Casey denied making any oral agreement as to applying the proceeds of the farm, and testified that the only agreement as to that matter was the written one dated October 31; that the deed to the Michigan farm was given to him to secure him on the contract for the Grove avenue house; that the Wolfs stated they expected to sell it to a Mr. Snyder and his daughter, and would apply the purchase money on the contract; that he told the Wolfs, if they did not succeed in selling the farm to the Snyders, he would advertise it and try to sell it, and in the meantime they were to do the same, or place it in some agent's hands to sell; that he asked originally for the Grove avenue property $2,600, but reduced the price to $2,500, and agreed to make the trade if they would give him the deed to the Michigan land as security; that he had no conversation with Mrs. Wolf on February 23d about a buyer having made a deposit of $10 on the farm; that he did have a telephone conversation with the daughter about such purchaser and deposit of $10, in which he said they could not close the deal without coming to his office, and that he did state, if they did any crooked work, he would put them in jail for it; that this conversation was in April, 1915, after the first notice of forfeiture was served, and that the Wolfs did not mention having a purchaser until that month.

On April 29, 1915, Casey served Mr. and

Mrs. Wolf with a written notice that, unless they paid him $118.98 on the contract by May 9th, the contract would be forfeited. Thereafter he brought suit in the municipal court for possession of the premises, but later took a nonsuit. June 4, 1915, Casey and his former partner, Coleman, called at the house on Grove avenue where the Wolfs lived, and laid a notice on the doorstep or on Mrs. Wolf's arm, to the effect that, unless $137.50 was paid on the contract by June 14th, the contract would be forfeited. Casey and Coleman both testified that at the same time the notice of June 4th was left Casey tried to give Mrs. Wolf a quitclaim deed from himself and wife to the Michigan farm; that upon her refusal to take it he laid it on her arm, and she crumpled it up and threw it after him, and they left it lying there. Mrs. Wolf and her daughter testified that, when this last notice was left, Casey and Coleman tried to make Mr. and Mrs. Wolf sign a quitclaim deed to the house and lot. Casey's copy of the agreement as to the Grove avenue property shows indorsements ⚫on December 5, 1914, interest $12.43 and principal $15, and on January 23, 1915, principal $15. Mrs. Wolf admits that these payments were made, and she also claims that she paid another $15 on the principal, and it also appears that she paid $10 for insurance.

The master found in his report, after setting out the testimony, that from the inception of the negotiations Casey intended by unfair means to defraud appellees of their Michigan farm and require them to pay him the full price of $2,500 for the house and lot, and that Casey intended to retain title to the house and lot until it was thus paid for. The decree finds the same as the master on these points, and further, as a conclusion of law, that said fraudulent intention on Casey's part took the oral contract testified to by appellees' witnesses out of the statute of frauds, and that appellees were entitled to a deed from Casey and his wife to the house and lot on Grove avenue, free and clear of incumbrance, and also that Casey was to pay appellees $100 and costs, including master's and stenographer's fees; the court retaining jurisdiction of the subject-matter and of the parties for such further proceedings as may be necessary to carry the decree into effect.

[1] If appellants are right in stating that the deed to the Michigan land was executed and delivered at the same time the other two contracts were, then all previous conversations and oral agreements concerning the subject-matter of the contract were merged in the written agreements. Lanum v. Harrington, 267 Ill. 57, 107 N. E. 826; Grubb v. Milan, 249 Ill. 456, 94 N. E. 927. Mrs. Wolf, the only witness on this point on behalf of the appellees, testified that the two agreements were executed on October 31, 1914, the date they bear. The master found that both these agreements were executed on Sun

day, November 1, 1914. The decree found the same, while Casey's testimony is that they were all executed along with the deed to the farm, on November 11th. We think the weight of the testimony tends strongly to support Casey's position on this point.

[2] If it be conceded, however, that the conclusion as to the oral agreement being merged in the written agreement does not necessarily follow from the record, then any oral contract relied upon as to the selling of the Michigan farm and the disposition of its proceeds must be established by clear and unequivocal evidence, and the acts claimed as constituting part performance must have been done under the contract itself for the sole purpose of performing it. Kane v. Hudson, 273 Ill. 350, 112 N. E. 683; Christensen v. Christensen, 265 Ill. 170, 106 N. E. 627. The rule is well settled in this state that a parol contract for the conveyance of real estate will not be specifically enforced, unless it appears to be clear, certain, and unequivocal in its terms, and the proof upon which the conveyance is asked must be established so convincingly as to leave no reasonable doubt in the mind of the court. Lonergan v. Daily, 266 Ill. 189, 107 N. E. 460, and cited cases. It must also affirmatively appear that possession was taken under the contract. It is not sufficient that the party was previously in possession. Shovers v. Warrick, 152 Ill. 355, 38 N. E. 792; Christensen v. Christensen, supra; Lonergan v. Daily, supra.

[3] The evidence was not at all clear as to when possession was taken. Mrs. Wolf testified they moved into the premises on Grove avenue about November 12, 1914. Casey testified that the Wolfs moved into the premises the week commencing November 1st. The contract as to the farm land and that as to the sale of the Grove avenue property are consistent with Casey's testimony with reference to the sale of the Michigan farm and the application of the proceeds, and are inconsistent with the appellees' testimony. It does not seem reasonable, in view of the written agreement as to the Michigan farm, that within a very few days after executing it Casey would make an entirely new agreement with reference to the sale and application of the proceeds of that farm, without destroying the old agreement and making a new one in writing. The admitted facts as to the payments made by appellees on the Grove avenue property tend to uphold the claims of Casey as to the transactions, rather than the claims of the Wolfs.

[4] We do not think that the claim of fraud asserted by appellees with reference to this transaction is upheld by the evidence in the record. That claim seems to be based quite largely upon the fact that the Grove avenue property, at the time the trade was made, was in the name of Miss Lawrence, instead of Casey. We do not regard that as proof of fraud. The original contract for the

Casey shall deed the Grove avenue property to the Wolfs clear of incumbrance, pay them $100, and pay the costs of this suit, and as a result of the trade that he have the Michigan farm, mortgaged for $1,000, with any unpaid taxes and interest there may be, is certainly not justified by the evidence in this record.

sale of the Grove avenue house was signed $215. To require, as the decree does, that by Casey, as well as in the name of Miss Lawrence, and the evidence shows without contradiction, as we understand it, that Casey signed Miss Lawrence's name to that document. Appellees certainly knew that Miss Lawrence was named as the owner in the contract at the time it was executed. There seems to have been no attempt on the part of Casey to conceal that fact, and he could not conceal it, in view of the fact that the contract was drawn in the name of Miss Lawrence as party of the first part.

[8] It is absolutely essential to sustain the decree that the evidence in the record should clearly support the conclusion that Anna Hoffman made a bona fide offer for the farm [5] While it is true that fraud may be in Michigan of $2,600 over and above the inproved by circumstances, that we seldom ex- cumbrance on that farm, and was able to pect to prove it by the admissions of the carry her offer out. She herself did not tesparty, and often cannot find direct and posi- tify. No reason is given why she was not tive evidence of such fraud (Schwarz v. called, and there is no proof as to her finan Reznick, 257 Ill. 479, 100 N. E. 900), and that cial ability to make good on such an offer. proof of circumstances which convince the The only testimony on this point is that of mind that fraud has been perpetrated is all Mrs. Wolf that Anna Hoffman made such that is required, still fraud will not be pre- an offer and paid $10, and the further testisumed, but must be proved as a fact by such mony of Mrs. Wolf and her daughter that clear and convincing evidence as leaves the they told Casey that such an offer had been mind well satisfied that the allegations of made, and he refused to deed the farm. fraud are true. If the motives and designs | Casey's version, stated above, does not agree of a party charged with fraud may be traced with this testimony in many important parto an honest and legitimate source equally ticulars. The evidence as to Anna Hoffman as well as to a corrupt one, the honest source being a bona fide purchaser, able and willing must be preferred. McKennan v. Mickel- to execute and carry out her offer, is not such berry, 242 Ill. 117, 89 N. E. 717, and cases a clear and satisfactory character as to aucited. thorize the entering of the decree here in [6] Specific performance cannot be demand-question. ed as a matter of right, but rests in the [9] While the specific relief asked for in sound discretion of the court, to be deter- the bill and allowed under the decree in this mined from all the facts and circumstances case does not appear to be authorized by the of the particular case. If the contract is evidence in the record, still the evidence does unreasonable or unjust, or for any other authorize specific performance under condigood reason should not be performed, a de- tions fair to all parties, in view of the writcree will not be granted. McDonald v. Min- ten agreements entered into by them. It is nick, 147 Ill. 651, 35 N. E. 367; Espert v. universally conceded that it is impossible for Wilson, 190 Ill. 629, 60 N. E. 923; Dreiske the courts to lay down any inflexible rule by v. Eisendrath Co., 214 Ill. 199, 73 N. E. 379; which it may be determined in any given McKennan v. Mickelberry, supra. case whether specific performance should or [7] To enforce the oral contract testified to should not be decreed. Each case must rest, by appellee Mrs. Wolf, in the manner that in a large measure, upon its own particular the decree orders it enforced, in our judg-facts and peculiar circumstances. The genment would be most unjust to appellants. eral aim of a court should be to grant equitaThere is no testimony as to the value of the ble relief of such nature as will best accomMichigan farm, except that of Mrs. Wolf and plish the ends of justice. It is within the Casey. She testified that the farm cost her discretion of a court of equity to withhold $2,600 and was worth $3,600, and that there specific performance, unless the complainant was a mortgage of $1,000, on which no in- will elect to submit to such terms and conditerest was due November 11, 1914, and that tions in connection with the subject-matter the taxes were paid. Casey testified that the of the contract as the court may deem just farm land was worth $800 or $900, and that and equitable. 26 Am. & Eng. Ency. of Law the taxes and interest on the mortgage had (2d Ed.) 65; 36 Cyc. 752, and cases cited. not been paid for two years, and the owner This court, in Bear v. Fletcher, 252 Ill. 206, of the mortgage was threatening to foreclose; 96 N. E. 997, ordered specific performance as that the farm was unimproved and growing to a part of the contract and damages as to up to weeds. Casey testified that the Grove the remainder of the contract. In Attebery avenue property was worth $2,600 and there v. Blair, 244 Ill. 363, 91 N. E. 475, 135 Am. was a mortgage on it of $1,500. His former partner, Coleman, testified it was worth from $2,500 to $2,800 A real estate man, Travis, testified it was worth $1,950. Casey testified that he had also made repairs since the Wolfs went into possession that cost him

St. Rep. 342, the court ordered the sale of the defendant's interest in certain property if he did not choose to pay the purchase money within 40 days and receive the deeds. In Thayer v. Star Mining Co., 105 Ill. 540, the court ordered one of the parties to build the

railroad in accordance with the agreement, | tofore set out in this opinion. If the total and, if it was not constructed within a cer- payments credited to the Wolfs on the printain time, decreed that within 60 days from cipal of the contract for the Grove avenue the entry of the decree all of certain rights house and lot, after following the procedure and interests under the contract should be above specified, are found to aggregate $1,300 forever extinguished. See, also, the follow- or more, the Wolfs will be entitled to a deed ing cases, where terms and conditions were to said house and lot according to the confixed as a part of the decree of specific per- tract, upon assuming or giving back a trust formance: De Walsh v. Braman, 160 Ill. 415, deed for the balance as provided by the con43 N. E. 597; Harrison v. Polar Star Lodge, tract; otherwise, the monthly payments shall 116 Ill. 279, 5 N. E. 543; Worden v. Crist, be resumed, and the contract for the house 106 Ill. 326. and lot shall proceed according to its terms as to the balance found due thereon, with such modifications as to time as required to do equity between the parties.

set forth.

Reversed and remanded, with directions.

COOKE and DUNCAN, JJ., dissent.

(276 Ill. 38)

CITY OF LAKE FOREST v. BUCKLEY. (No. 10950.)

(Supreme Court of Illinois. Dec. 21, 1916.) 1. EXCEPTIONS, BILL OF 44-TIME FOR

FILING.

[10] On the record before us, the written contracts as to the sale of the house and lot on Grove avenue and the sale of the Michigan farm should be carried out, except as to the The decree of the circuit court is reversed, matter of time. A court of equity, having ac- and the cause is remanded for further proquired jurisdiction to decree specific perform-ceedings in harmony with the views herein ance of a contract, will retain jurisdiction for the purpose of giving relief and settling the whole matter. Griffin v. Griffin, 163 Ill. 216, 45 N. E. 241. In view of the conditions that have arisen since the closing of the contracts, appellees, the Wolfs, shall be given three months after the decree shall be entered in the court below in which to sell the Michigan farm at such price as some purchaser in good faith will pay and they are willing to let the farm go for, and if it is so sold Casey shall make a deed to the purchaser, and the proceeds shall be applied on the payment of the balance due on the contract for the house and lot on Grove avenue to the extent it will reach, and if there is any surplus it will belong to Mrs. Wolf. If appellees are not able to so sell the farm at a price satisfactory to them within three months after the entry of the decree below, then Casey shall have three months in order to find a purchaser at a price that is satisfactory to the trial court, the proceeds to be applied as above specified. After the expiration of six months, if no such purchaser is found, the court is directed to decree that the deed to Casey from the Wolfs to the farm vests title in him at a price the court, after hearing such evidence on the subject as the parties desire to offer, deems fair to all the parties in interest, and to apply such price on the

Grove avenue house and lot.

A court of equity, having acquired jurisdiction of the parties to a contract, may order a decree for specific performance by directing the parties to execute a deed, and, if the proper parties refuse, direct the execution of the deed by a master in chancery. Poole v. Koons, 252 Ill. 49, 96 N. E. 556. After the sale or other disposition of the farm as herein provided, the court is authorized and directed to adjust the rents, interest, improvements, etc., on the Grove avenue property and the Michigan farm, and the costs before the master, the circuit court, and this court, in such a manner as is just and equitable to all the parties to this litigation, having in mind the facts and circumstances with reference to this transaction as here

A bill of exceptions purports to be signed at the time the exception is taken in the course of the trial, whether presented then or afterwards; but if presented within the time allowed by the court for filing it, and that fact is shown on its face, it may be afterwards filed as of that date within a reasonable time after it is signed.

[Ed. Note.-For other cases, see Exceptions, Bill of, Cent. Dig. § 73; Dec. Dig. 44.] 2. EXCEPTIONS, BILL OF 44 SIGNINGTIME.

The trial judge, upon signing it, should date a bill of exceptions as of the date when it bill has done all within his power when he prewas presented, where the party presenting the sents it, and an order should be procured directing that it be filed as of that date, though the failure to follow such practice is merely an irregularity, not rendering the bill void, and where the clerk thereafter, on his own motion or at the request of the party interested, files it as of the date it was presented, the opposite party can take no advantage of the court's failure to enter an order for its filing nunc pro tunc.

[Ed. Note.-For other cases, see Exceptions, Bill of, Cent. Dig. § 73; Dec. Dig. 44.] 3. EVIDENCE 543(3)-IMPROVEMENT SESSMENT-EXPERT TESTIMONY.

As

On an application for the confirmation of an assessment roll for the cost of paving a street, where a witness for an owner objecting to the assessment of his lots stated that he had dition of the present roadway along the line examined the objector's property and the conof the proposed improvement, and based his opinion on his experience in "hundreds and hundreds of paving cases," but had never seen who did not testify as to his familiarity with the property until the proceeding arose, and the values of property in that locality, or with the market value of the objector's lots, was not qualified to state his opinion as to the ben

efits to the lot.

[Ed. Note. For other cases, see Evidence, Cent. Dig. § 2357; Dec. Dig. 543(3).]

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