Bucklen. v. Hasterlik

Mr. Justice Phillips delivered the opinion of the court: It is urged by appellant that no decree granting relief should have been rendered on the bill in this case, for the reason that it is the enforcement of a forfeiture in a court of equity. It is true that a court of equity will never, by its affirmative action or by the affirmative provisions of its decree, enforce a penalty or forfeiture, but will always leave the party entitled thereto to prosecute his claim in a court of law, according to legal rules. Compensation, and not forfeiture, is the doctrine of equity. While courts of equity, not less than courts of law, recognize the right of parties to a contract to stipulate for penalties and forfeitures, and while, on a proper showing, courts of equity will relieve against forfeitures, it is a rule of universal application that they will never enforce either a penalty or a forfeiture. (2 Story’s Eq. 319; Livingston v. Tompkins, 4 Johns. Ch. 416; Marshall v. Vicksburg, 82 U. S. 149; Vail v. Drexel, 9 Ill. App. 439 ; Homburg v. Baker, 1 Pet. 232; Smith v. Jewett, 40 N. H. 530.) If, therefore, the decree of the circuit court, in its nature, enforces a penalty or forfeiture, it cannot be sustained. The contract between these parties recites that “said purchaser has paid §1000 as earnest money, to be applied on said purchase when consummated,” and should the vendor not comply with the terms in furnishing title, etc., “the said earnest money shall be refunded.” By the terms of this contract the earnest money became the property of appellee, of which he could be divested only in the event of his failure to perform his contract. The check was, at the time it was drawn, delivered to appellee, and while it is true it was afterward deposited, together with the contract, with the International Bank, the evident purpose thereof was to guarantee that Hasterlik would, within the time prescribed, furnish evidence of a good title, in which event he would be entitled to the check or the money. Pry on Specific Performanee, (3d ed.) 1460, says: “Where the purchaser, after making the payment by way of deposit, unjustifiably repudiates the contract, or in any other way goes off through his default, the vendor is, in the absence of stipulation on the point, entitled to retain the money, treating it as having been paid to him as a guaranty for the purchaser’s performance of the contract.” In Depree v. Bedborough, 4 Griff. 479, it was said in the opinion: “Then how the person who was in default can, upon that default and in consequence of that default, acquire any right to the money, which was parted with as a security that there should be no default, it is difficult to conceive.” It is clear, from the contract, that the only contingency which contemplated the return of the money to Bucklen was a default on the part of Hasterlik. The latter is apparently not basing his claim to it on the ground of a forfeiture, but is claiming it under the contract, on the ground that he has furnished, within the time specified, “a complete abstract of title,” which has not been “found materially defective.” This brings us, then, to a consideration of the objections which were made, as to defects existing in the abstract, by appellant. If the objections which were made in writing by Smoot were well taken, then the abstract was materially defective, and if not remedied within the time specified in the contract, then Hasterlik would not have performed his part of the contract and would not have been entitled to the $1000. The first objection made to this title was, that certain deeds in the chain of title were insufficiently acknowledged, to-wit, one from Zaphna Lake and wife to Nathan C. Hills, dated March 22, 1843, one from Nathan C. Hills and wife to Isaac Loomis, dated July, 1843, and one from Isaac Loomis to John P. Emerson, dated February 2,1846. It is urged that the acknowledgments from Lake and wife to Hills, and from Loomis to Emerson, are defective, for the reason that they do not appear to have been certified under the official seals of the notaries taking the acknowledgments. In the abstract of the conveyance from Lake and wife to Hills the abstracter has the following memorandum: “Certif. of acknt. by notary public for said county, dated Oct. 7th,” and is signed “B. Randall, (L. S.) Rotary Public.” An abstract purports to be a copy or synopsis of facts shown by the records, and it is contended that the letters “L. S.,” following the name of the notary, do not indicate an official seal. In Illinois Central Railroad Co. v. Johnson, 40 Ill. 35, it was contended that an appeal bond was defective because the records showed a mere scrawl instead of a fac simile of the seal. The court said : “Moreover, this is a copy of the original bond, and the clerk could not make a fac simile of the corporate seal or device which might have been, and for aught that appears was, attached to the original bond.” In Smith v. Butler, 5 Fost. (R. H.) 521, it was urged that a copy of the summons was bad because of the use of the letters “L. S.” instead of a copy of the seal of the clerk. There the court said: “The position in regard to the copy of the seal is also untenable. In copying a writ of summons the fac simile of the seal cannot well be made, and to do it would require more skill than pertains to the profession generally. By long usage and the general understanding of legal writers, ‘L. S.’ is regarded as the true representation of a seal in a copy of all legal precepts. * * "* We have no hesitancy in deciding that the letters are the proper designation and the copy of the seal.” In addition thereto, the law of the State of Ohio, where this acknowledgment was taken, and in force at the time, provides : “Be it enacted by the General Assembly of the State of Ohio, that it shall not be necessary to the validity of any deed or other instrument of writing hereafter to be executed, that a seal be affixed to the certificate of the officer before whom the acknowledgment be taken, anything in the act to which this is an amendment to the contrary notwithstanding. ” 24 Laws of Ohio, sec. 1, p. 4. The objection to the admission of the statutes of Ohio was properly overruled, as by sections 10 and 11, chapter 51, Starr & Curtis’ Statutes of Illinois, the admission of such evidence is authorized. In substance the same objections are made to the acknowledgment of the deed from Loomis to Emerson, bearing date of 1846, and executed in Ohio. What has been said regarding the acknowledgment in the Lake-Hills deed is applicable here. It is also urged that in a deed of conveyance made by Nathan O. Hills and wife to Isaac Loomis, dated July, 1843, and recorded November 8,1843, the acknowledgment is defective, for the reason that it does not state that the grantors were personally known to the notary. It may be said of all these deeds to which objections were made by the counsel for appellant, that they have been on record in the recorder’s office in Cook county for a period of forty or more years. The record in this case discloses that during that time transactions of great importance have been based on them, both in conveyances and loans of money made on the property. If these deeds were forgeries, it is most improbable that in property of such great value the fact would not have been discovered and some title hostile to the chain based on these deeds have been asserted. It is insisted that appellee, not having actually tendered a deed to appellant, is not' entitled to the earnest money. One of the preliminaries necessary to be performed by appellee before the execution or tendering of the deed was to tender td appellant a good title. It was not incumbent upon appellee, prior to the acceptance of this title, to make a tender of the deed to Bucklen for the property. We have found that the abstract was not materially defective, and a tender of the abstract conveying that title would not have bettered appellant’s position. The rule is, that a tender is never required, nor is its omission ever prejudicial, where, from the circumstances, it is clear that such tender, if made, would have been refused. The law does not require the performance of a mere idle act, or one which would be useless, and appellant had never, at any time, indicated that if the deed were tendered on this title he would accept it. Where a vendee objects to a title, a tender of a deed which he declares he will not accept is unnecessary. Hampton v. Speckenagle, 9 S. & B. 212; Tierman v. Roland, 15 Pa. St. 429; Lyman v. Gedney, 114 Ill. 388; Gunter v. Daniel, 4 Hare, 420; Webster v. French, 11 Ill. 254; Shepler v. Green, 31 Pac. Rep. 42. It is also insisted that appellee should have removed the incumbrance of $7000, which, by the terms of the contract, he was to do, before he is entitled to a standing in this court. In the trial of this case in the circuit court, heard partly on oral testimony in open court, it was found that appellee had the means, was able, ready and willing, and offered forthwith, to discharge such incumbrance and have the same released and canceled, but that appellant, by his attorney and agent, waived and released cancellation of the same. The Appellate Court has found the same facts. We do not deem it necessa^r to say more than that we fully agree with the findings of both courts on this question. As to the point raised by appellant, that he is not bound by the acts of his attorney and that his rights can not be affected thereby, it may be said that, in the first instance, the record discloses that the abstract of title was delivered by appellee to appellant himself, and by him delivered to Smoot, his attorney, for examination. Apparently the details of closing the transaction were left to the attorney. Appellant does not, in any place in the record, deny Smoot’s authority, nor indicate that notwithstanding Smoot’s objections he was ready and willing to accept the title as it stood, and we hold, from the facts existing in this record, that he is bound by the acts of his attorney. The second objection made to the abstract, being the uncertainty of the'description in the Carter conveyance, is not urged in this court. As a further reason, in addition to what has been heretofore said, as to why the decree of the circuit court, affirmed by the Appellate Court, is correct, it appears from the record that after the making of this contract the property in question declined in value about ten per cent. The purchase price of this property was to have been $16,950. After the contract was executed between these parties the property was necessarily withdrawn from the market, and it was beyond the power of appellee to negotiate with other persons during the existence of this contract. Thus it may be said the amount which the property declined in value amounts to considerably more than the earnest money in dispute. As we have heretofore said, compensation is a principle of equity, and by this decree appellee is being only partly compensated for the real loss which he has sustained. Perceiving no error in the decree of the circuit or Appellate Court the judgment of the Appellate Court is affirmed. Judgment affirmed.