Short v. Kieffer

Mr. Justice Wilkin delivered the opinion of the Court: In our view of this record, the fact that two of the Kieffer children were minors at the time the power of attorney was signed and when the alleged sale was made to Frederick W» Short, is not of controlling importance. Unless appellants-have alleged in their petition facts sufficient to support the averment that by virtue of said power of attorney and sale to-Frederick W. Short he “became entitled to a conveyance from said adult parties of all their right, title and interest in said premises,” without reference to the disability of the minors,, the decree below was clearly right. Appellants could, under-no theory of the law, be entitled to share in the proceeds of the land sold at the master’s sale unless they have established their right to the. land itself. The intervening petition may therefore be tested by the same rules of law which would have been applicable if it had been a bill for specific performance against appellees, they alone signing the power of attorney. The letter of December 28, at most, only gave Hitz power to contract for the sale of said land. It does not purport to give him authority to conyey, and, not being under seal, would be insufficient for that purpose if it did. Johnson v. Dodge, 17 Ill. 433; Peabody v. Hoard, 46 id. 242. Did the instrument of March 20, under that power, amount to a contract of sale, and if it did, what were its terms ? The mere fact that Short did not sign the writing would not affect its validity as a contract, provided he accepted it and acted upon it. (Johnson v. Dodge, supra, and authorities cited.) It is well understood that one purchasing land from an agent is bound to see the authority of the agent, and know that he is acting within the scope of his authority. In this case, Short did see whatever authority Hitz had, because the terms of his contract were fixed by reference to that power. Suppose, then, a contract is framed between Hitz, as agent for these appellees, and Frederick W. Short, from the two instruments what would be its terms ? Most favorably construed to appellants, it would amount to an agreement on the part of appellees to convey to Short said land in consideration of $700 per acre, one-fourth to be paid in cash and the balance in one, "two and three years, with six per cent interest from the date of sale. Under that contract the mutual rights of the parties would be, that appellees should receive the contract price according to the terms agreed upon, and on the receipt thereof convey to Short, by good and sufficient deed, all their right, title and interest in said real estate. The elementary rule, that before one party to a contract can call upon the other to perform he must show that he is not in default himself, applies with peculiar force and strictness in all bills for specific performance. (Scott v. Shepherd, 3 Gilm. 483; Brown v. Cannon, 5 id. 174; Warren v. Richmond, 53 Ill. 52.) “The complainant is required to make out & much stronger case to support an application for the specific performance of a contract than the defendant is required "to show to resist it. It is not sufficient to show merely that "the adverse party is in default, but the party complaining must show that he is not liable to the same imputation.” It was said in Cronk v. Trumble, 66 Ill. 428: “It is the established rule of this court that a purchaser of land has no right to apply to a court of chancery to compel a conveyance, unless he has, previously to filing his bill, clothed himself with the right to demand a deed without any further thing being done on his part.” As will be seen by reference to the foregoing statement of facts, there is in this petition no averment of the payment of the contract price, or an offer to do so. The only attempt to ■allege performance of the contract on the part of Frederick W. Short, or either of the other petitioners, is the general and indefinite conclusion of the pleader that they had done all things necessary, etc. No one can seriously contend that is, in any proper sense, an averment of performance, within the foregoing-rule. Moreover, the petition proceeds throughout upon the assumption that the petitioners had nothing to do but await the final determination of a partition proceeding, and then take all of the proceeds of the partition sale, except enough thereof to pay appellees the $700 per acre. It is too clear for argument that nothing of that kind is shown by the alleged agreement, nor is there any averment in the petition that the parties so agreed or understood. To hold that the power of attorney to Hitz authorized him to make a present sale of said land, binding upon his principals, giving the purchaser an indefinite time, depending upon .the termination of a suit to be thereafter brought, in which to comply with the terms of the sale, would be most unreasonable, and in the face of the terms of the contract. The power of sale was to be ■exercised within six months from its date. The sale was to be for one-fourth cash, — not at some indefinite time in the future, but when the sale was made. The deferred payments were to be evidenced by some obligation drawing six per cent interest, — not of some purchaser at a partition sale, but of the party to whom Hitz should make a sale. If the power of attorney is construed as authorizing the agent to make a sale without first perfecting the title, then, clearly, the terms of the sale were in no way affected by what is said in the letter of December 28 as to a partition suit. But on their own theory they have not performed the contract. They are not offering to pay appellees one-fourth of what they say was the purchase price under their contract with the agent, and themselves become responsible for the deferred payments. As before said, this is not a case in which they can ask to-have the proceeds of the sale of the land by merely making an indefinite offer to let the court adjust the equities between them and appellees, but they must show that by a valid contract they became entitled to the land, and that they have specifically performed, or offered to perform, that contract on their part. This they have wholly failed to do. It is a significant fact, that while appellants are insisting upon the benefits of the suit for the partition of the lands in question, they do not pretend by their petition that either themselves or Hitz had any connection whatever with that-proceeding, except that, by a combination between themselves-to stifle bidding at the first master’s sale, one of them bid off the land for $11,250 less than it sold for at the last sale. Appellees were permitted to go on, at their own expense, paying attorney’s fees, and other costs, and perfect their title and complete the partition of the premises, and now appellants ask a court of equity to give them the benefit of a contract with an agent, neither they nor the agent having complied with a single feature of the contract. There are other grounds upon which the decree of the court below should be sustained, but we do not deem it necessary to point them out in this opinion. The decree of the circuit court-was clearly right, and the judgment of affirmance by the Appellate Court is fully supported by the reasoning in the opinion of that court. Its-judgment will be affirmed. Judgment affirmed.