Wilburn v. Haines

Mr. Chief Justice Breese delivered the opinion of the Court: In February, 1868, appellee sold appellant a tract of land in Sangamon county, for the sum of twenty-four hundred dollars, of which five hundred dollars were paid in hand, and two notes, executed by the vendee, of nine hundred and fifty dollars each, one payable one year after date, and the other payable two years after date, with interest at ten per cent, payable annually. The vendor gave a bond for a deed, the condition of which was the usual condition in such sales, that if the vendee should pay the notes and interest when due, according to their tenor and effect, the vendor would make him a deed to the land. Under this contract the vendee went into possession, and after the expiration of one year, the vendor demanded payment of the amount due, being the principal and interest of the note first due, and the interest on the note due. in two years. Payment being refused, the vendor demanded possession of the premises, and that being refused, he brought his action of forcible entry and detainer against the vendee, and the only question made is, is the action maintainable? It was to meet and provide for precisely such a case as this, that the act to amend the statute in relation to forcible entry and detainer, and landlord and tenant, was passed by the legislature in 1861. The first section of that act declares, that chapter forty-three, of the revised statutes of 1845, shall be extended to all cases between vendor and vendee, where the latter has obtained the possession.of land under a contract, by parol or in writing, and before obtaining a deed of conveyance of the same, fails or refuses to comply with such contract. Sess. Laws 1861, p. 176, sec. 1. This act, we said in Jackson v. Warren, 32 Ill. 339, was a remedial act, and should receive a liberal construction. But here there is no necessity for construction. The act, by its terms, provides for this, very case. The defendant has failed to comply with the contract, and holding over after a demand made of the possession, was wrongful. Such possession as the vendee had, was a mere permission by the vendor that he should enjoy the premises while the contract was maturing. The argument of appellant, that the vendor must put the vendee in statu quo before he can resort to this remedy, is based on the idea that these proceedings amount to a rescission of the contract. This is not so. The vendee can as well enforce the contract when out of possession, as when in ; and if there are any equitable circumstances in his favor to influence the judgment of a court of chancery, he may obtain a decree for a specific performance. The judgment of the circuit court must be affirmed. Judgment affirmed.