Morse v. Seibold

Mr. Justice Magruder delivered the opinion of the Court: The material question in this ease, and the only one which we deem it necessary to consider, is the question of laches. Has the appellant been guilty of such delay in filing his bill as to make it- inequitable to grant him a specific performance of the contract ? It is claimed by appellees, that B. F. Seibold acquired title by an adverse possession of twenty years on April 2, 1888, as he had been in possession of the premises ever since April 2, 1868, the date of his deed from Harseh; and that appellant was guilty of laches, because he waited nineteen months after the expiration of the twenty years on April 2, 1888, to-wit: until November 2, 1889, before he filed his bill. On the other hand, appellant contends that the period of limitation did not commence to run on April 2, 1868, the date of Seibold’s entry into possession, but that it began to run on March 18, 1869, the date when the time of redemption from the sale made by the sheriff to Harseh on December 18,1867, expired; and that there was no laches, because only seven months and a half elapsed after March 18, 1889, the date assigned for the completion of the bar of twenty years, before the filing of the bill on November 2, 1889. The basis of this contention is found in the language of the deed from Harseh to B. F. Seibold, which provided that, if the land should be redeemeed from the sheriff’s sale, then Harseh would refund the money to Seibold. The interest quit-claimed is that which Harseh obtained “by a deed which he got from the sheriff of Peoria County.” But the word, “deed,” was evidently used by mistake for “certificate,” as the land could not have been redeemed from the sale, if. the sheriff had already made a deed. As matter of fact, Harsch had only the equitable title when he conveyed to Seibold. He held nothing but a sheriff’s certificate of sale, dated December 18,1867, and, when he made his deed to Seibold on April 2, 1868, only three months and a half of the statutory period of redemption had expired. At that time the proceedings in the foreclosure suit brought by Harsch against Clinton were on file in the proper court in Peoria County, and the certificate of sale was on record in the recorder’s office, so that Seibold must have understood what was referred to by the language of the deed. ■ At any rate, he went into possession of the land under a deed which expressly recognized the right of Clinton to redeem from the sheriff’s sale. We are inclined to think, that his possession did not begin to be adverse until March 18, 1869, when the time for redemption expired. Adverse possession, sufficient to defeat the legal title, must be hostile in its inception and in its character, and must so continue uninterruptedly for twenty years. (Turney v. Chamberlain, 15 Ill. 271; Bolden v. Sherman, 101 id. 483.) There must be an assertion of ownership, which is hostile to all others, and which shall continue during the whole period of twenty years. (Kerr v. Hitt, 75 Ill. 51; McNamara v. Seaton, 82 id. 498). To constitute an adverse possession, it is not only necessary that there should be an actual, visible and exclusive- possession, but that possession must be commenced and continued under a claim of right to hold the land against him who was seized. The occupation must be with the intention of claiming the fee against the true owner. (Angelí on Dim.—6 ed.—sec. 390). Not only must there be an intent to exclude the rightful owner, but also to exclude all other persons. So long as the possession is consistent with, or in submission to the title of the real owner, it is not adverse within the meaning of the law. (Transportation Co. v. Gill, 111 Ill. 541). “If A is in possession of a field of B’s, he is in adverse possession of it, unless there is something to show that his possession is consistent with a recognition of B’s title.” (1 Am. & Eng. Ene. of Law, 225, and cases cited in notes). When Seibold went into possession on April 2, 1868, under the deed from Harsch, his possession did not become hostile to Clinton, the true owner, and to Clinton’s judgment creditors until March 18, 1869. Until the latter date the possession was in subordination to the right of the true owner, or his creditors, to come in and redeem and terminate the possession. Inasmuch, therefore, as the bar of the statute did not become complete by the lapse of twenty years until March 18, 1889, and inasmuch as the bill was filed on the second day of November thereafter, we do not think that there was any laches, if the appellant had a right to keep the contract alive until March 18, 1889, and to wait, before filing his bill for specific performance, until Seibold had acquired title by an adverse possession of twenty years. In June, 1883, and, again, in January or February, 1886, Seibold tendered to the defendant a special warrantee deed and demanded the payment of the balance of the purchase money. The defendant refused to accept the deed or to pay the money. There is no doubt that there was a serious defect at this time in the title of Seibold. No sheriff’s deed had ever been issued upon the certificate of sale, and the time had long since passed within which the sheriff had any power to ■make the deed. The certificate was void under the statute. (Peterson v. Emmerson, 135 Ill. 55). Appellant swears that, notwithstanding this defect in the title, he was willing to pay the balance of the purchase money, if a general warrantee deed had been tendered to him. He was not obliged to pay his money and receive a defective title. (Wallace v. McLaughlin, 57 Ill. 53). But he had the right to •elect to take the defective title with such covenants as the vendor had agreed to make. (Harding v. Parshall, 56 Ill. 219). Within a reasonable time, therefore, he should either have treated the contract as inoperative and demanded the return of the cash payment, or he should have tendered the balance of his purchase money and demanded a full warranty deed. (Crabtree. v. Levings, 53 Ill. 526; Lancaster v. Roberts, 144 id. 213). He did neither, but waited three years and nine or ten months before filing the present bill, although Seibold indicated his intention to treat the contract as no longer binding by offering to return the cash payment. It cannot be denied that Seibold made reasonable efforts to perfect his title. He endeavored to obtain a quitclaim deed from Clinton, and employed attorneys to defend the ejectment suit brought by Clinton, and continued the defense of it until it was finally dismissed. We think that, under the circumstances of this. case, appellant was guilty of laches in waiting so long before filing his bill. Laches has been defined to be such neglect or omission to assert a right as, taken in conjunction with lapse of time more or less great, and other circumstances causing prejudice to an adverse party, operates as a bar in a court of equity. (12 Am. & Eng. Enc. of Law, page 533). As a general rule the specific performance of a contract will not be decreed when, from a view of all the circumstances of the case, it appears that such performance will produce hardship or injustice to either of the parties. (War veil e on Vendors, page 741). It appears from the evidence in this case that between January, 1883, and March, 1889, the property in dispute doubled in value. Where the property greatly increases in value while the purchaser delays his determination as to taking the vendor’s title, a court of equity will regard it as unjust to compel the vendor to perform the contract. Indeed, it has been said that the delay of the purchaser in deciding whether he will accept the title or not, is an injustice, because he can enforce the contract against the vendor whether the title be good or bad, whereas the vendor can only do so in case of a good title. (Hoyt v. Tuxbury, 70 Ill. 331). A party seeking the specific performance of a contract is bound to show that he has been ready, willing and eager to perform on his part. (Hoyt v. Tuxbury, supra). It seems to us that the appellant in this -case has not shown the proper readiness and willingness to perform. It cannot be that, where the vendor’s title proves defective, the vendee can keep the contract operi until sufficient time elapses to make the title good by prescription. If, after the vendor’s possession has continued for sixteen years, the vendee can wait four years for the completion of the bar by the lapse of the twenty years, then when the possession has continued for four years only, the vendee can wait sixteen years before filing his bill, until the vendor’s title has been perfected by an adverse possession of twenty years. The specific performance of a contract in equity is not a matter of absolute right, but is addressed to the sound legal discretion of the Court. (1 Story’s Eq. Jur. sec. 742; Dintleman v. Gilbert, 140 Ill. 597). In the decree below some of the findings made by the court are not in harmony with .the views herein expressed; but inasmuch as we think that the Circuit Court reached a correct conclusion in dismissing both the original and cross bills for want of equity, we conceive that it can make no difference what particular reasons led that court to the conclusion so reached by it. The decree of the Circuit Court is affirmed. Decree affirmed.